DANIEL I. WEINER, Associate Full Bio Washington, DC Office Office: (202) 637-6360 Fax: (202) 661-4995 Email: dweiner@jenner.com

Jenner & Block helped secure a victory in the U.S. District Court for the District of Massachusetts in Gill v. Office of Personnel Management, a landmark case that challenged the constitutionality of the Defense of Marriage Act ("DOMA").  The ruling, by Judge Joseph L. Tauro, determined that married same-sex couples are entitled to the same federal spousal benefits and protections as every other married couple.  We represent the plaintiffs along with Gay & Lesbian Advocates & Defenders (GLAD) and two other law firms.

Congress passed DOMA in 1996.  Among other things, it defines marriage as a relationship between one man and one woman for all federal purposes.  GLAD and its co-counsel filed the lawsuit on behalf of seven married same-sex couples and three widowers in Massachusetts, including Nancy Gill and her spouse Marcelle Letourneau.

Ms. Gill, a 22-year employee of the U.S. Postal Service, was unable to cover her spouse on her health care insurance plans.  Ms. Gill was also unable to name her spouse as the beneficiary of her federal health benefit or pension should she predecease her.  Jenner & Block’s team successfully argued that Section 3 of the DOMA violates the constitutional guarantee of equal protection when applied to federal income tax, Social Security, and federal employees and retirees.

In his decision, Judge Tauro wrote that in the wake of DOMA "it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue."  He added that "to further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning."  The federal government can decide to appeal Judge Tauro’s ruling to the U.S. Court of Appeals for the First Circuit within the next 60 days.

The Jenner & Block team on this matter was led by Partner Paul M. Smith, and included Associates Anna M. Baldwin, Daniel I. Weiner and Luke C. Platzer. 

Jenner & Block recently secured a victory for the Firm’s client, Hastings Outlaw, in the closely watched case Christian Legal Society v. Martinez before the Supreme Court.  The Court ruled by a 5-4 margin that a public university law school can require student groups it recognizes to open their membership to all students, and decline to fund a religious student group that requires its officers and voting members to agree with its core religious beliefs, effectively excluding gay and lesbian students and students with other religious beliefs.  In a victory for the public university and the LGBT students at the school who wished to take advantage of the open membership policy, the Court ruled that the university did not violate First Amendment rights when denying recognition to a group with an exclusionary membership policy.

The petitioner in the case, Christian Legal Society (CLS), claimed a First Amendment right to receive official recognition from Hastings Law School in San Francisco, while maintaining a policy that excluded members on “unrepentant homosexual conduct,” among other things.  CLS claimed that the denial of official recognition violated its free speech, expressive association, and religious freedom rights under the First Amendment.  Jenner & Block client, Hastings Outlaw, had intervened in the district court on the side of Hastings in order to defend the open membership policy and the rights of its LGBT members and all students to freely participate in all student groups on campus.  The law school and Hastings Outlaw prevailed in the district court and the Ninth Circuit, and the Supreme Court granted review last fall.

In a ruling authored by Justice Ginsburg, the Court affirmed the Ninth Circuit, ruling in favor of Hastings and Hasting Outlaw and remanding on only a narrow previously unaddressed issue.  The Court held that CLS’s First Amendment rights were not violated, because CLS was not forced to admit members with which it disagreed.  Rather, CLS had a choice:  it could elect the benefits of official recognition as part of the “limited public forum” for open-membership student groups that Hastings established, or it could forego the benefits and maintain a closed membership policy.  Because Hastings had established a limited public forum for only certain purposes – including facilitation of leadership, educational, and social opportunities for all students and encouragement of dialogue between students – it was entitled to withhold benefits from certain groups based on reasonable and viewpoint-neutral rules.  The open membership requirement for all groups, the Court held, was both reasonable and “textbook viewpoint neutral.”

In a separate concurrence, Justice Kennedy emphasized Hastings’ interest in encouraging students to interact with a wide range of opinions in the student activities that it funded and supported.  Justice Kennedy noted that Hastings’ “objectives may be better achieved if students can act cooperatively to learn from and teach each other through interactions in social and intellectual contexts.  A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”

Hastings Outlaw was represented in the Supreme Court by a Jenner & Block team that included partners Paul M. Smith and Duane C. Pozza, and associates Daniel I. Weiner, Anna M. Baldwin, and Jennifer V. Yeh.

Jenner & Block has been awarded the 2010 Wiley A. Branton Award for pro bono service by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.  The Wiley A. Branton Award honors “attorneys, clients and civil rights leaders for their contributions to the cause of equal rights.”  The Firm was recognized for its pro bono work on behalf of The Equal Rights Center ("ERC") in a disability rights case against Howard University Hospital in which the ERC sued to make the Hospital's Family Health Center ("Center")  more accessible to people with disabilities.

In 2009, Washington, D.C. residents and wheel-chair users Antoine Rhodes and Angela Vaughn came to the ERC complaining about a lack of access to the Center's facilities and services.  The ERC surveyed the facilities and found many violations of the Americans with Disabilities Act and the District of Columbia Human Rights Act.

Jenner & Block took the case on behalf of the ERC and individual plaintiffs through the Washington Lawyers’ Committee.   Shortly after filing a lawsuit, the Firm’s team successfully negotiated an agreement which included an initiative to bring the Center building and its policies into compliance.  Howard University Hospital immediately began to make structural and policy changes to the Center, including installing accessible exterior and interior doors, modifying reception counters and payment windows, and establishing a designated wheelchair accessible examination room.  In addition, the hospital is establishing a training program for all employees on disability awareness. 

The Jenner & Block team representing the Equal Rights Center in this matter included Partner Matthew S. Hellman, and Associates Rochelle P. Lundy and Daniel I. Weiner.  The Firm will be honored at a Washington Lawyers’ Committee awards luncheon on June 16.

Please click here for award information.

On June 30, Jenner & Block won summary judgment in a New York federal court on behalf of a group of major recording companies in their copyright infringement lawsuit against a commercial USENET server operator.  USENET is a network of online bulletin boards where subscribers may obtain access to a multitude of files posted by other users.

In Arista Records LLC et al. v. Usenet.com, Inc., et al, the defendants were alleged to have encouraged use of their service as an alternative to peer-to-peer file-sharing over the Internet in which users downloaded songs illegally and without payment to labels or publishers.  In a 38-page opinion, Judge Harold Baer of the United States District Court, S.D. New York ruled “there can be no dispute that Defendants' services were used overwhelmingly for copyright infringement,” holding that Usenet.com engaged in direct, contributory, and vicarious copyright infringement, and induced others to infringe.

The Firm’s team also obtained a broad evidentiary sanctions ruling based on defendants’ destruction of computer data and filed a motion for terminating sanctions based on the defendants’ wiping of employee computers, false responses to discovery requests and their destruction of e-mails that were subject to discovery requests. Judge Baer noted the “wiping” clean of seven hard drives that had belonged to defendants' employees was the “most egregious misconduct alleged,” and, as a sanction, refused to allow Usenet to argue that they were entitled to a “safe harbor” from infringement claims under the Digital Millennium Copyright Act.

According to an article on Billboard Business News, “the Usenet.com opinion will likely be cited as an important precedent in the fight against services that facilitate piracy,” noting that the court’s “most important determination was that copyright defendants can’t claim protection under the U.S. Supreme Court’s landmark 1984 Sony-Betamax decision if they maintain an ‘ongoing relationship’ with their infringing users.”  

The Firm’s team was led by Partners Steven B. Fabrizio and Gianni P. Servodidio and included Associates Luke C. Platzer, Duane Pozza, and Daniel I. Weiner

On July 25, 2008, a US District Judge in New Jersey dismissed a purported nationwide class action complaint filed against Firm client Marriott International Inc. and several of its subsidiaries. The complaint was brought by purchasers of timeshare properties from Marriott, which is a major player in the timeshare industry.

The complaint alleged that Marriott had violated the federal Real Estate Settlement Procedures Act of 1974 (RESPA), along with several common law causes of action, by failing to disclose the Marriott entities' retention of a portion of certain title insurance premiums.The Firm moved to dismiss, arguing that the retention of the funds was lawful, and that the Plaintiffs’ RESPA claims were brought beyond RESPA's one-year statute of limitations. The Firm further argued that the Plaintiffs were not entitled to equitable tolling because the closing documents properly disclosed the relationship between Marriott and the title insurer, which formed the basis of the complaint.

US District Judge Anne E. Thompson agreed and dismissed the complaint in its entirety, finding that the closing documents properly alerted the plaintiffs to the relationship and that the plaintiffs were not entitled to equitable tolling because they had not adequately investigated their potential claim.

On September 17, 2008, Judge Thompson denied the plaintiffs' motion for reconsideration as well as their motion for leave to amend the complaint.  

The Firm's team consisted of Partners David A. Handzo, Michael DeSanctis and James L. Thompson and Associates David P. Saunders and Daniel I. Weiner.

The Firm has filed an amicus curiae brief in the United States Supreme Court, urging the Court to review an appeals court's ruling that upheld the "safety plan" procedure frequently used by the Illinois Department of Children and Family Services to separate children from their parents upon any unsubstantiated allegation of child abuse, without permitting the parents to receive notice of the factual basis for the allegations against them or any type of hearing before or shortly after the plan is imposed.

The pro bono certiorari brief was filed on March 7, 2008, in Dupuy v. Samuels, on behalf of the Illinois State Bar Association. The case is a class action filed by parents who were accused of child abuse, denied the right to live with their children, and denied a hearing. According to the Firm's brief, in a majority of such cases, no child abuse is ever proven.

In July 2007, the U.S. Court of Appeals for the 7th Circuit nevertheless upheld the procedure, which the Illinois Department of Children and Family Services has been employing since 1995. The appeals court found that "safety plans" are not mandatory but are imposed only when parents agree to them. Thus, constitutionally protected Due Process rights are not implicated, the court held.

The parents contend, however, that the plans have a coercive and mandatory effect because if parents do not agree to them, the agency threatens to remove their children from them.

Therefore, the department's actions are "based solely on the unsustainable legal fiction of parental consent," the Jenner & Block amicus brief contends. Under established constitutional law, "individuals' waiver of their fundamental Due Process rights cannot be truly voluntary unless the waiver is free of state coercion and knowingly made."

According to the amicus brief, in order to be permissible under the Due Process clause of the Fourteenth Amendment, the imposition of any safety plan would have to be accompanied by "notice and an opportunity for a meaningful hearing either before or shortly after any significant deprivation" of parental or familial rights. In this case, the "complete absence of Due Process" protections for parents is plainly unconstitutional.

The brief was filed by Partners Robert R. Stauffer, Ian Heath Gershengorn, and Associates Joshua A. Block, Elisabeth Genn and Daniel I. Weiner.

Please click here to view the brief.