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Brian D. Schmalzbach Partner

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Brian is a co-chair of the firm’s Appeals and Issues group. He concentrates on appellate litigation, high-stakes dispositive motions, and class action strategy.

He has drafted U.S. Supreme Court merits briefs and petitions for certiorari, as well as briefs and motions in federal and state appellate and trial courts on a wide range of issues including securities fraud and derivative litigation, corporate merger litigation, constitutional law, class actions, and patent litigation. Brian also serves as pro bono counsel to civil rights plaintiffs in state and federal courts of appeals. He is a member of the Law360 Appellate Editorial Board and a regular speaker on the U.S. Supreme Court and appellate litigation issues.

Before joining McGuireWoods, Brian served as a law clerk to Justice Clarence Thomas of the Supreme Court of the United States and Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit.

Brian graduated from the University of Virginia School of Law, where he served as articles development editor on the managing board of the Virginia Law Review.

Experience

U.S. Supreme Court

  • Collins v. Virginia, No. 16-1027 (2018)
    In an 8-1 decision safeguarding residential privacy rights, the U.S. Supreme Court agreed that police generally must obtain a warrant before entering the curtilage of a home to search a parked vehicle.
  • Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215 (2018)
    Represented amicus National Federation of Independent Business Small Business Legal Center in a bankruptcy case with serious recordkeeping implications for small business creditors.
  • Florida v. Harris, 133 S. Ct. 1050 (2013)
    The Supreme Court unanimously agreed that an alert by a well-trained narcotics-detection dog creates probable cause to search an automobile for drugs.
  • United States v. Woods, 134 S. Ct. 557 (2013)
    The Supreme Court addressed whether partnership-level tax proceedings can determine certain penalties on partners, and whether the economic substance doctrine can trigger tax penalties for valuation misstatements.

Courts of Appeals

  • The Seventh Circuit reversed a $6 million bellwether jury verdict against our client, holding that Wisconsin’s risk-contribution doctrine does not apply to product-liability claims against manufacturers of lead-containing paint.  994 F.3d 791 (2021) (argued).
  • The Federal Circuit reversed an unfavorable inter partes review decision that patent claims asserted against our client (one of the world’s largest telecommunications companies) were valid, holding that the Patent Trial and Appeal Board had improperly construed the claims. 2020 WL 2465414. The Federal Circuit also affirmed a favorable PTAB decision holding related claims invalid as obvious. 2020 WL 2312494.
  • The Tenth Circuit agreed that operators of hydraulic-fracturing disposal wells are not liable for property owners’ earthquake insurance premiums in the absence of any physical earthquake damage. 778 F. App’x 561 (2019) (argued).
  • The Ninth Circuit reversed a bench trial verdict against our client because the district court misapplied the willfulness requirement for a tax return preparer penalty. 772 F. App’x 555 (2019) (argued).
  • The Fourth Circuit reversed orders remanding corporate merger class actions to state court, becoming the first court of appeals to hold that the Class Action Fairness Act allows removal of claims against corporate merger partners for aiding and abetting breaches of fiduciary duty. 928 F.3d 325 (2019).
  • The Fourth Circuit affirmed summary judgment for a major national bank because the Homeowners Protection Act does not require lenders to disclose mortgage insurance purchased by lenders after closing and for which borrowers are not charged. 888 F.3d 117 (4th Cir. 2018).
  • The Eighth Circuit affirmed summary judgment in favor of a major national bank in a long-running Truth in Lending Act dispute, holding that a frequently used acknowledgement form created a presumption that the borrowers had received sufficient copies of a required TILA notice, and that the borrowers’ evidence did not rebut that presumption. 883 F.3d 1010 (8th Cir. 2018) (argued).
  • The Fifth Circuit upheld diversity jurisdiction based on the citizenship of the trustee of a mortgage trust and affirmed the full dismissal of wrongful foreclosure claims against a major national bank. 881 F.3d 933 (5th Cir. 2018).
  • The Fourth Circuit reversed summary judgment against our client’s 8th Amendment claim that a prison guard allowed him to be assaulted by his cellmate. 817 F.3d 123 (4th Cir. 2016) (argued).
  • The Federal Circuit affirmed dismissal of a patent infringement lawsuit against our client, one of the world’s largest telecommunications companies, because the asserted patent claimed a patent-ineligible abstract idea. 669 F. App’x 555 (Fed. Cir. 2016).
  • The Federal Circuit affirmed dismissal of a patent infringement lawsuit against our client, a major financial services company, because the asserted patent claimed a patent-ineligible abstract idea. 677 F. App’x 682 (Fed. Cir. 2016).
  • United States v. Williams, 808 F.3d 253 (4th Cir. 2015)
    In a case where we served as court-appointed amicus, the Fourth Circuit addressed the effect of amendments to the Sentencing Guidelines on eligibility for reduced sentences for prisoners who were sentenced based on statutory mandatory minimums.  The Supreme Court later adopted our position in Koons v. United States, No. 17-5716 (2018).

Supreme Court of Virginia

  • Brooks v. Commonwealth, No. 141821 (Va. 2015)
    After reading our brief, the Solicitor General of Virginia confessed error and asked the Supreme Court of Virginia to reverse summary judgment against our client’s tort claim for an attack by a riot-control dog.

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