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8/30/2010
Jenner & Block Partners Recognized Among Top Lawyers in Illinois by Leading Lawyer Magazine
In the recently published Leading Lawyers Network Magazine-Business Edition, a number of Jenner & Block partners were ranked among the top business lawyers in Illinois.
Partners Anton R. Valukas and Jerold S. Solovy were named to its list of the "Top Ten Leading Business Lawyers in Illinois" and the "Top Ten Leading Commercial Litigators in Illinois."
Partner E. Lynn Grayson was recognized among the "Top Ten Leading Women Business Lawyers in Illinois."
Partners Harry J. Roper, Charles B. Sklarsky, Jerold S. Solovy, Thomas P. Sullivan and Anton R. Valukas were named "Top 100 Leading Business Lawyers in Illinois."
Partners E. Lynn Grayson, Susan C. Levy and Terri L. Mascherin were recognized among the "Top 100 Leading Women Business Lawyers in Illinois."
The listings, which are based on surveys of the attorneys' professional peers, are featured in the July 2010 Leading Lawyers Network Magazine-Business Edition.
Practice Groups:
Class Action
Climate and Clean Technology Law
Complex Commercial Litigation
Defense & Aerospace
Environmental, Energy and Natural Resources Law
Government Contracts
Intellectual Property
International Arbitration
Media and First Amendment
Pharmaceutical, Biotech and Medical Devices
Products Liability and Mass Tort Defense
Professional Responsibility
Securities Litigation
Unfair Competition, False Advertising and Lanham Act
White Collar Defense and Investigations
Litigation Department
8/23/2010
Who’s Who Legal Recognizes Jenner & Block Partners
The publication’s eighth edition “recognizes over 12,000 private practice lawyers in 135 countries for their experience in specific areas of corporate and commercial law.” Who’s Who Legal utilizes a “rigorous process of client and peer assessment” to identify lawyers who are the “very best.”
The following Jenner & Block partners were listed in the 2010 edition of the publication under the following practices:
Arbitration
Lawrence S. Schaner
Banking
Peter M. Gaines
Business Crime Defence
Charles B. Sklarsky
Thomas P. Sullivan
Anton R. Valukas
Commercial Litigation
Jerold S. Solovy
Anton R. Valukas
Environment
Bill S. Forcade
E. Lynn Grayson
James A. Vroman
Insurance & Reinsurance
David M. Greenwald
Matthew L. Jacobs
Lorelie S. Masters
John H. Mathias, Jr.
Jerold Oshinsky
Patents
Harry J. Roper
Practice Groups:
Corporate Finance
Environmental, Energy and Natural Resources Law
Intellectual Property
International Arbitration
Litigation Department
Reinsurance Practice
White Collar Defense and Investigations
8/20/2010
Seventh Circuit Rules for Firm’s Client in Significant FACTA Case
On August 10, 2010, the Seventh Circuit issued an opinion affirming a judgment in favor of Jenner & Block client, 1-800 CONTACTS. In a case of first impression, of substantial import to internet retailers, the Seventh Circuit became the first federal court of appeals to consider whether a federal statute regulating electronically printed receipts applies to e-mail transaction confirmation notices sent at the conclusion of an internet purchase.
Plaintiff Eduard Shlahtichman sued 1-800 CONTACTS under the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”). In part, FACTA prohibits merchants from printing more than the last five digits of a credit card number, or the credit card expiration date, on certain customer receipts. The plaintiff alleged that 1-800-CONTACTS violated FACTA when it included the expiration date on the e-mail transaction confirmation it sent to him after he ordered contact lenses over the internet.
The Firm’s team defending 1-800-CONTACTS successfully argued to the district court, and then to the Seventh Circuit, that FACTA does not apply to e-mail transaction confirmations, contending that FACTA's language, context, and legislative history reflect a consistent Congressional focus on standard paper receipts provided at brick and mortar retail locations. The team noted that, by its terms, FACTA applies only to “electronically printed” receipts that are provided “at the point of the sale or transaction,” leading the Seventh Circuit to conclude that the statute excludes e-mail confirmations that the merchant neither prints onto a paper receipt nor provides to the purchaser at a physical point of sale location.
Along with accepting the statutory construction proffered by 1-800-CONTACTS, the Seventh Circuit went on to hold that, even if the retailer’s construction had been rejected, 1-800 CONTACTS would still have been entitled to dismissal of the complaint because its construction of the statute was reasonable as a matter of law.
The Firm’s team was led by Partners James L. Thompson and Lawrence S. Schaner; Associates Michael F. Otto, William E. Parker, and Chelsea L. Warren; and Paralegal Jeanne C. Haske.
Practice Groups:
Litigation Department
Complex Commercial Litigation
8/16/2010
Andrew J. (“A.J.”) Thomas Joins Jenner & Block as a Partner
Highly regarded intellectual property, media, and entertainment litigator, Andrew J. (“A.J.”) Thomas, has joined Jenner & Block as a partner in its Los Angeles office. Mr. Thomas has significant experience in copyright, trademark, misappropriation, theft-of-ideas, First Amendment, and complex business litigation matters.
Mr. Thomas has represented both traditional and new media clients at the trial and appellate levels in a wide variety of intellectual property rights, First Amendment, and commercial matters. Last year, for example, a summary judgment Mr. Thomas obtained on behalf of a publisher of a Marilyn Monroe biography was affirmed on appeal by the Ninth Circuit, establishing new protections for the use of publicity photos. The U.S. Supreme Court denied certiorari, leaving the appellate ruling in place. Mr. Thomas has represented clients such as NBC/Universal, Fox, Sony Pictures, Viacom, Nielsen, and many others.
“We are very pleased to welcome A.J. Thomas to Jenner & Block,” said Firm Managing Partner Susan C. Levy. “His impressive background, particularly in the fields of entertainment and complex business litigation, will be a great asset to our clients.”
Mr. Thomas was named a leading California Media and Entertainment Litigation lawyer by Chambers USA in 2009 and 2010 and selected as a Southern California “Super Lawyer” in Business and Intellectual Property Litigation in recent years as well. From 2007 to 2009, he was a Board Member of the Copyright Society of Los Angeles, and he has been a guest lecturer at a number of educational institutions on topics related to entertainment and media law.
“I am excited to join Jenner & Block,” said Mr. Thomas. “The Firm has a long history of representing clients in cases on the cutting-edge of copyright law in the entertainment and media industries, and I look forward to offering the Firm and its clients my experience and knowledge.”
Jenner & Block was recently honored as the “2010 U.S. Copyright Firm of the Year” and “Copyright Firm of the Year - West Coast” by Managing Intellectual Property magazine, for its “innovative and challenging IP work” and “exceptional cumulative achievements” in 2009. Over the past two years, the Firm’s Creative Content Practice secured high-profile victories on behalf of all major motion picture studios in the first U.S. decision addressing the merits of copyright infringement claims against a BitTorrent operator, and on behalf of a group of major recording companies in their copyright infringement lawsuit against a commercial USENET server operator. The Firm also secured an important appellate victory for the Estate of John Steinbeck’s widow, putting to rest a decades-long dispute over the rights to Steinbeck’s classic literary works such as Of Mice and Men and The Grapes of Wrath.
“We are thrilled to add A.J. to our growing Los Angeles office,” said Rick Richmond, Managing Partner of the Firm’s Los Angeles office, which opened in April 2009. “He augments the Firm’s existing premier entertainment practice, especially on the West Coast where so many of our entertainment industry clients are based.”
Mr. Thomas is a 1991 cum laude graduate of Harvard Law School, where he was an editor of the Harvard Law Review. He received his B.A. in Economics and Political Science from Stanford University in 1988, graduating with distinction and department honors, where he was editor of The Stanford Daily. Prior to joining Jenner & Block, Mr. Thomas was a partner in the Los Angeles office of Davis Wright Tremaine. Mr. Thomas previously served as a law clerk to Judge Alfred T. Goodwin on the U.S. Court of Appeals for the Ninth Circuit.
Since opening in the Spring of 2009, Jenner & Block’s Los Angeles office has steadily expanded to better serve its clients. Recent lateral partner hires in that office have included Jerry Oshinsky, who is often referred to as the “Dean” of the insurance policyholder trial bar, and Ken Lee, a former Associate White House Counsel. The office has also grown with the addition of senior associates and former federal judicial clerks.
Practice Groups:
Complex Commercial Litigation
Litigation Department
Creative Content
8/11/2010
Firm Obtains Important Defense Result for Spamhaus Project
Jenner & Block attorneys recently achieved another positive ruling in a long-running federal case involving pro bono client Spamhaus. Since taking over the representation in September 2006, Jenner & Block attorneys have successfully overturned an $11.7 million default judgment and permanent injunction against the international nonprofit, and obtained a recent bench verdict which reduced the award to just $27,002.
Spamhaus, a British-based entity whose purpose is to protect internet networks from unsolicited bulk email (i.e., spam), was sued for defamation and tortious interference by e360 Insight, an internet marketing company that claimed it had been unfairly labeled a spammer by the organization. While Spamhaus was represented by predecessor counsel, the district court found Spamhaus in default and entered an $11.7 million default damages judgment and a permanent injunction against it. At that point, Firm Partner Craig C. Martin and now-deceased former partner Mathew N. Neumeier took the case and appealed the judgment to the Seventh Circuit Court of Appeals.
Agreeing with the arguments made by Mr. Martin that the district court failed to hold the required hearing before entering damages after the default, and that the court had no legal grounds to support the permanent injunction, the appeals court remanded the case back to the district court. After discovery on damages, during which the Firm obtained several sanctions against plaintiffs, and a four-day bench trial in March 2010 conducted by Mr. Martin, Partner David Jiménez-Ekman, and Associate Joseph R. Dunn, the district court issued its opinion on June 11, 2010. The district court's opinion reduced plaintiff’s damages from $11.7 million to only $27,002. Spamhaus' position is that plaintiffs failed to establish any damages, and the Firm has asked the court to reconsider its award; that motion is pending.
Practice Groups:
Litigation Department
8/11/2010
Basil Named 2011 Fellow of Leadership Greater Chicago
Jenner & Block Partner Matt D. Basil was recently named a 2011 Fellow of Leadership Greater Chicago (LGC), a nonprofit organization whose purpose is to nurture a new generation of leaders for the Chicago area. According to LGC, Fellows are selected on the basis of their “capacity for leadership in their chosen careers,” their “likelihood of achieving positions of substantial responsibility” and their “record of civic activity.” This year, 35 of the city’s most promising young men and women were chosen for the honor.
Leadership Greater Chicago was founded in 1983 by prominent Chicago civic leaders and its first Fellows class was nominated in 1984. As a Fellow, Mr. Basil will participate in an intensive ten-month program to study key challenges and issues facing the Chicago region, including education, race and ethnic relations, health care, housing, crime and violence, and philanthropy and volunteerism. During that time, Fellows meet with more than 70 civic and community leaders from grassroots organizations to the highest echelons of government, visit neighborhoods and institutions across the city, and participate in cultural events.
Mr. Basil is a partner in the Firm's Litigation Department and a member of the Complex Commercial Litigation and Communications Practices. He represents a wide range of corporate and individual clients in pre-trial, trial and post-trial proceedings in state and federal courts throughout the United States, as well as in alternate dispute resolution proceedings. Mr. Basil has handled cases involving complex business disputes, civil RICO, government investigations, trade secrets, contract, agency, and directors and officers liability.
Practice Groups:
Litigation Department
Complex Commercial Litigation
Communications
8/11/2010
Harrison Awarded ABA’s Inaugural Rosner & Rosner Young Professionalism Award
Jenner & Block Associate Lindsay C. Harrison received the American Bar Association’s inaugural Rosner & Rosner Young Lawyers Professionalism Award. The Rosner Award was named by donor Seth Rosner to honor the memory of his partners, Oscar S. Rosner and Jonathan L. Rosner, his father and brother respectively. It recognizes "young lawyer commitment to legal and judicial ethics, lawyer professionalism, client protection and professional regulation."
The American Bar Association bestowed this award on Ms. Harrison for her pro bono work in the Nken v. Holder case. Ms. Harrison’s client was an asylum seeker who had fled Cameroon after being detained, interrogated and severely beaten by its government for engaging in nonviolent political protests. When Ms. Harrison took his case, he had been turned down by U.S. courts at least five times and was detained by the immigration authorities, separated from his wife and young son, and left with little hope.
Ms. Harrison took his case all the way to the U.S. Supreme Court where she presented oral argument in January 2009. Even though this was her first oral argument in any court, Ms. Harrison’s arguments on behalf of her client swayed the Court and she prevailed. In a landmark decision, the Court ruled that asylum applicants who are appealing orders of removal by the Board of Immigration Appeals in federal court should not be deported while their appeals are pending if they have a likelihood of success in their appeal and would suffer harm if deported. Her client was reunited with his family and a precedent was set that would help thousands like him.
Ms. Harrison was presented with the award at the American Bar Association’s annual meeting on August 6.
Pictured (above left to right) Mr. Seth Rosner and Ms. Harrison
Pictured (below) The 2010 Rosner & Rosner Young Professionalism Award
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
8/11/2010
Smith Receives ABA’s Prestigious Thurgood Marshall Award
Jenner & Block Partner Paul M. Smith received the prestigious Thurgood Marshall Award from the American Bar Association Section of Individual Rights and Responsibilities.
Established in 1992 to honor the legacy of the late Supreme Court Justice who was a champion for the rights and freedoms of all Americans, the Thurgood Marshall Award is presented to individuals who have made "substantial and long-term contributions to the furtherance of civil rights, civil liberties, or human rights in the United States." Past recipients of this award include U.S. Supreme Court Justice Ruth Bader Ginsburg, former U.S. Attorney General Janet Reno, the Honorable Abner J. Mikva, and numerous other pioneering lawyers and judges.
Mr. Smith has made substantial contributions to the furtherance of civil liberties and human rights. In 2003, he argued and won Lawrence v. Texas, the landmark gay rights case that has often been compared to the Brown v. Board of Education case argued and won by Thurgood Marshall. Mr. Smith’s work to advance LGBT civil rights since Lawrence has continued unabated. He has filed a series of influential amicus briefs in the state litigation concerning same-sex marriage. Mr. Smith recently led the Jenner & Block team that 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 section 3 of the Defense of Marriage Act ("DOMA"). He also led the team that helped secure 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 determined 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. The Court ruled that the university did not violate First Amendment rights when denying recognition to a group with an exclusionary membership policy.
Mr. Smith’s commitment to civil rights extends into the realm of voting rights. He maintains a thriving election law practice and he has argued three times before the U.S. Supreme Court in voting rights matters since 2004. His most recent argument was in Crawford v. Marion County Election Board, a 2008 case challenging an Indiana voter ID law, which has been called the most significant election law case to reach the Court since Bush v. Gore in 2000.
In addition, Mr. Smith also maintains a successful First Amendment practice. In this area, over the last several years he has represented the video game industry in challenging numerous state and local laws regulating the sale or distribution of video games based on their content. Mr. Smith has led a Jenner & Block team to a perfect 8-0 record by repeatedly persuading courts to strike down such laws as unconstitutional violations of free speech.
Mr. Smith received the award at a ceremony during the ABA’s 2010 Annual Meeting in San Francisco on August 7.
Pictured (above): Mr. Smith accepting the honor.
Pictured (below from left to right): Former ABA President Michael Greco and Mr. Smith
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
7/15/2010
Groundbreaking Victory in Gill v. Office of Personnel Management
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.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
7/8/2010
Supreme Court Rules in Favor of Firm's Client in First Amendment Case
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.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
6/30/2010
Norman Hirsch Recognized by National Law Journal as One of Country’s “Winning” Litigators
Partner Norman M. Hirsch has been recognized by The National Law Journal as one of 11 “winning” trial lawyers nationwide who are “model(s) of the modern litigator” with “a great story to tell.” Mr. Hirsch, along with a trial team that included Partners David Jimenez-Ekman and Christopher Tompkins and Associates April Otterberg and Anne Ray, was honored for his $56.859 million trial victory on behalf of the Firm’s client Energy Northwest in Energy Northwest v. United States.
The case arose out of the U.S. Department of Energy's failure to accept and dispose of spent nuclear fuel. Energy Northwest owns and operates the Columbia Generating Station, a 1,150-megawatt nuclear reactor located outside of Richland, Washington. As required by the Nuclear Waste Policy Act, in 1983, Energy Northwest and the DOE entered into a contract that required the DOE to accept and dispose of spent fuel generated by utilities with nuclear power plants beginning in 1998, in exchange for Energy Northwest's ongoing payment of fees. Not only did the DOE fail to meet its 1998 deadline, to date it still has not met its obligation to remove any spent nuclear fuel from any nuclear utility site. As a result, Energy Northwest had to spend millions of dollars to build additional facilities to store the waste that would have otherwise been removed by the government. Energy Northwest sued to recover costs related to the building of the additional storage.
Approximately 70 similar lawsuits have been filed by nuclear utilities across the country. In this case, the Firm won a summary judgment ruling on liability in 2006; the damages issues were tried in a three-week bench trial in 2009; and the court’s award was made in February 2010. The NLJ article noted that “although the Energy Northwest win was not the largest award to a nuclear utility in these cases…it was the only case so far in which a nuclear utility recovered its entire claim.”
Additional members of the Energy Northwest team included Partner William D. Heinz; Associates Joshua Rafsky, Christine P. Benavente, David E. Hutchinson, Michael H. Margolis, and Jacob P. Zipfel; and Of Counsel Lisa M. Eddington.
In the NLJ profile, Mr. Hirsch and the trial team attributed their victory to simplifying the complex and highly technical case into a “classic breach-of-contract case,” casting the case in realistic terms, showcasing the experience and expertise of the client’s engineers and executives who testified at trial, using video animations at trial to bring spreadsheets to life, and anticipating and preparing for various complex scenarios affecting damages.
Mr. Hirsch is a partner in the Firm’s Litigation Department and a member of the Professional Responsibility and Antitrust Litigation Practices. He was the principal attorney for Exelon Generation LLC in lawsuits against the United States government which, as in the Energy Northwest case, sought substantial damages for the government’s breach of contract in failing to remove spent nuclear fuel from Exelon nuclear reactors. Those cases settled in August 2004 on very favorable terms for the client.
This is the second year in a row that the Firm has been recognized in the NLJ’s annual profile of successful litigators. In 2009, a trial team led by David J. Bradford, Co-Chair of the Litigation Department, was honored by the publication for their trial victory on behalf of client Equity Lifestyle Properties.
Practice Groups:
Litigation Department
Related Document(s):
Please click here to view the NLJ’s profile on Mr. Hirsch.
6/30/2010
Partners Named 2010 International Who's Who of Insurance & Reinsurance Lawyers
Who’s Who Legal named Partners John H. Mathias, Jr., David M. Greenwald, Lorelie S. Masters, Matthew L. Jacobs and Jerold Oshinsky the “2010 International Who’s Who of Insurance & Reinsurance Lawyers” and the Insurance Litigation and Counseling practice group was recognized as a “Top U.S. Firm” in the field. The publication notes that lawyers and clients who nominated Mr. Oshinsky describe him as “legendary” and “one of the founders of our bar.” Ms. Masters is noted as being “very prominent in D.C., and Mr. Jacobs is described as an “expert litigator.” Mr. Mathias “scored very highly” and Mr. Greenwald is described as “widely respected.” Who’s Who Legal analyzes nominations from lawyers and clients to identify lawyers who are “outstanding in terms of experience, expertise and reputation” and who are “leaders in their fields.”
According to the publication, the lawyers selected represent "leaders in the field" based on research conducted with law firm clients and insurance & reinsurance lawyers from around the world.
David M. Greenwald is a partner in Jenner & Block’s Chicago office. He is Co-Chair of the Firm’s Reinsurance Practice, and a member of the Firm’s Litigation Department and Insurance Litigation and Counseling, Domestic and International Arbitration, and Bankruptcy Practices. Mr. Greenwald represents clients in insurance and reinsurance coverage matters.
Matthew L. Jacobs is a partner in Jenner & Block’s Washington, DC office. He is a member of the Firm’s Litigation Department and its Insurance Litigation and Counseling, Reinsurance, Antitrust Litigation and International Arbitration Practices. Mr. Jacobs is responsible for complex, multi-party insurance coverage litigation matters in state and federal courts, and he regularly advises corporations on the availability of insurance coverage for a wide variety of claims.
Lorelie S. Masters is a partner in Jenner & Block’s Washington, DC office. She is a member of the Firm’s Litigation Department and Climate and Clean Technology Law and Insurance Litigation and Counseling Practices. Since 1983, she has advised and represented companies and individuals seeking to enforce insurance coverage under general liability, directors & officers, first-party property, health, and other types of insurance.
John H. Mathias, Jr. is a partner in Jenner & Block's Litigation Department. He is Chair of the Firm’s nationally prominent Insurance Litigation and Counseling Practice. He is also a member of the Firm's Reinsurance, International Arbitration and Class Action Practices. Mr. Mathias is a veteran trial lawyer concentrating on business litigation with particular emphasis upon insurance coverage litigation, reinsurance arbitrations, class actions, directors and officers litigation, professional liability litigation, and intellectual property litigation.
Jerold Oshinsky is a partner in Jenner & Block's Litigation Department and a member of the Insurance Litigation and Counseling Practice. Mr. Oshinsky focuses his practice on insurance coverage litigation on behalf of policyholders in federal and state courts throughout the country and on advising clients nationwide on insurance coverage related matters.
Please click here for more information.
Practice Groups:
Litigation Department
Insurance Litigation and Counseling
6/28/2010
Bradford P. Lyerla Joins Jenner & Block as a Partner
Nationally renowned intellectual property litigator Bradford P. Lyerla has joined Jenner & Block as a partner in its Chicago office, adding significant experience in patent, trade secret and unfair competition litigation to the Firm’s Litigation Department and IP Practice.
During a career that has spanned three decades, Mr. Lyerla has been first-chair in nearly 40 patent litigation matters and lead counsel in numerous other trials and arbitrations, representing some of the most prominent corporations in America. His work has also included handling Lanham Act, antitrust, and trademark and copyright infringement litigation matters across the country.
“We are thrilled that Brad is returning to Jenner & Block,” said Managing Partner Susan C. Levy. “His experience in successfully handling sophisticated patent trials has earned him a national reputation, and we are excited that he is continuing his impressive career in our IP Practice.”
Among Mr. Lyerla’s significant accomplishments are successfully defending the Solo Cup Company in a suit seeking nearly $100 million for alleged infringement of three patents relating to the microstructure of pleats in the rims of paper plates; breaking new ground in trade secrets law in what has become the leading case for a trade secrets doctrine known as “inevitable disclosure;” and representing Business Records Corporation in what is now a leading Illinois case regarding enforcement of non-compete agreements ancillary to the sale of a business. Mr. Lyerla, whose career began at Jenner & Block, was most recently a partner at Chicago IP boutique firm Marshall, Gerstein & Borun.
“Brad is a seasoned trial lawyer who will add depth to our patent trial practice and augment our already strong platform in pharmaceuticals, chemicals and power electronics, as well as semiconductor, internet and automotive related issues,” said Harry J. Roper, Chair of the Firm’s Intellectual Property Practice.
“I am extremely pleased to be returning to Jenner & Block, where I enjoyed practicing before and learned to try cases from outstanding trial lawyers. The values of exceptional service to clients and service to the community that originally attracted me to the Firm continue to distinguish it,” said Mr. Lyerla.
Mr. Lyerla’s intellectual property practice has been consistently recognized in Chambers USA, Leading Lawyers and Super Lawyers. He was recently appointed Chair of the Antitrust Committee of the Intellectual Property Law Association of Chicago, the oldest intellectual property bar association in the United States. In 2009, he was a member of the seven-lawyer committee that drafted proposed local rules for patent litigation in the Northern District of Illinois and he is a Life Fellow of the American Bar Foundation.
In addition to his work in the intellectual property arena, Mr. Lyerla has tried more than a dozen criminal trials on a pro bono basis, including the successful defense of two death penalty cases. For his pro bono trial work, he has received the John Powers Crowley Justice Award.
Mr. Lyerla received his B.A. in philosophy from the University of Illinois, where he was elected to Phi Beta Kappa and awarded the Donald W. Doerscher Memorial Prize as the outstanding senior in the Philosophy Department. He graduated with honors from the University of Illinois College of Law in 1980, and was a member and staff editor of the law review.
Practice Groups:
Intellectual Property
Litigation Department
6/25/2010
Miller Receives The Honorable George N. Leighton Justice Award
Jenner & Block Of Counsel Benjamin K. Miller, former Chief Justice of the Illinois Supreme Court, was recently awarded "The Honorable George N. Leighton Justice Award" by the Illinois Supreme Court Historic Preservation Commission, in recognition of his dedication to the highest standards of the legal profession and commitment to public service. Justice Miller is the second recipient of the honor; in 2009, the inaugural award was presented to its namesake, Judge George N. Leighton.
Justice Miller served as a Justice of the Illinois Supreme Court from 1984 to 2001 and as Chief Justice from 1991 to 1994. During his time on the Court, he participated in more than 2,000 cases and wrote nearly 500 opinions, including numerous landmark decisions. He brought a pro-active, forward-looking perspective to the Court, working for an aggressive evaluation process for Illinois judges and an improved system of judicial education that became a model around the country, and preparing the judicial system for changing demographic, economic and technological forces in Illinois. As part of these initiatives, in 1992, he established the Special Commission on the Administration of Justice, headed by Chairman Emeritus Jerold S. Solovy, to study the State’s judicial system and make recommendations as to how it could be improved.
Justice Miller has been involved in many professional and civic organizations. He received an Honorary Doctor of Law Degree from The John Marshall Law School in Chicago. He is the namesake of the Illinois Domestic Violence Coordinating Council’s coveted Justice Benjamin K. Miller Award, given to individuals who have played a significant role in addressing domestic violence. He was a founding member of the Central Illinois Women’s Bar Association and was the first member of the Women’s Bar Association of Illinois to serve on the Illinois Supreme Court. Justice Miller has served as an adjunct professor at the Southern Illinois University School of Medicine, Department of Medical Humanities since 1974.
Justice Miller began his career practicing law in Springfield in 1961. In 1976, he was appointed a Circuit Court judge for the Seventh Judicial Circuit and was elected to the position in 1978. In 1982, he was elected to the Fourth District Appellate Court where he served until his election to the state’s highest court.
The Illinois Supreme Court Historic Preservation Commission was created in 2007 to increase public awareness of the Illinois judiciary’s contributions to the state’s extensive legal heritage. Mr. Solovy is Chair of the Commission.
Practice Groups:
Appellate and Supreme Court Practice
Class Action
Litigation Department
6/23/2010
Firm Secures $61.7 Million Verdict for Dow Chemical Company
Jenner & Block recently achieved a significant trial victory for its client The Dow Chemical Company, when a U.S. District Court jury in Delaware awarded Dow $61.7 million in damages in its suit accusing Nova Chemicals Corporation of infringing two patents related to polyethylene resins. These resins are very strong, thin plastic films used in pallet wraps and heavy-duty shipping sacks. Dow has held the patents in question since 1998.
Partner Harry J. Roper was lead trial counsel, assisted at trial by Partners Aaron A. Barlow and Paul D. Margolis; Associates Sara Tonnies Horton, Nicholas A. Kurk, Jamie B. Keating, and Nangah N. Tabah; Senior Paralegal David A. Nelson; Paralegal Rosalind G. Singleton; Case Assistant Jocelyn C. Carreon; Project Assistant Matthew A. Pfaff; and Legal Secretaries Patty T. Sotiropoulos and Robin L. Ustanik. Co-Counsel on the case were former Jenner & Block attorneys Raymond N. Nimrod and Gregory D. Bonifield. Numerous other attorneys at the Firm contributed to the victory at various stages of the case, including Partners Steven R. Trybus, Robert L. Byman, Jeffrey A. Koppy, and Darrick J. Hooker and Associates Olivia T. Luk, Amy L. Signaigo and Jennifer K. Gregory.
The eight-person jury, which reached its verdict within a few hours after the conclusion of the two-week trial, found in Dow’s favor on every question of infringement and validity, concluding that all of the accused polymers infringed the Dow patents and that Nova did not prove that the patents were invalid. The award represented $57.4 million in lost profits to Dow and $4.3 million in royalties.
The suit was brought in October 2005 and claimed that Calgary, Alberta based Nova began willfully infringing the patents in 2003 by making, selling or importing ethylene polymer blend products embodying the patented technology, mostly under the name Surpass, into the United States.
Practice Groups:
Intellectual Property
Litigation Department
6/16/2010
L.A. Attorneys Named to Southern California “Super Lawyers” and “Rising Stars” Lists
Jenner & Block Partner Rick Richmond was recently named a 2010 Southern California Super Lawyer and Partner Brent Caslin and Associate Christopher C. Chiou were recognized as 2010 Southern California Rising Stars. This is Mr. Richmond’s sixth year in a row to be designated a Super Lawyer in the practice area of Business Litigation, and Mr. Caslin’s third year in a row to be included on the Rising Star list. Selections are based on a rigorous, multiphase process including peer nominations and evaluation and third-party research. The final list of Super Lawyers represents no more than five percent of the attorneys in a state; no more than 2.5 percent in each state are named Rising Stars, who are attorneys who are 40 years old or younger or in practice for 10 years or less.
Mr. Richmond is the Managing Partner of the Firm’s Los Angeles office and a partner in the Litigation Department. He has 23 years of experience including state and federal court trial and appellate work, local and federal administrative proceedings, and arbitrations before AAA and other panels in venues across the country, including California, Arizona, Washington, New York, Maryland, Virginia, Ohio, Indiana, Missouri, Tennessee, Texas, and Louisiana. His areas of practice include class actions, contracts, fraud, insurance and financial services, securities, employment and labor relations, intellectual property, construction defects, environmental, and toxic tort matters. Mr. Richmond is currently a director of the Los Angeles Area Chamber of Commerce and the Los Angeles Area Council of the Boy Scouts of America, and Vice Chairman of the Criminal Justice Legal Foundation.
Mr. Caslin is a partner in the Firm's Litigation Department. He manages commercial and intellectual property disputes from Los Angeles and spends a significant amount of time near technology centers in Northern California, Western Washington, and Japan. The cases he handles involve a wide variety of industries and subject matters including television distribution agreements, real estate leases and sale agreements, film financing structures, defense contracts, executive agreements (e.g., restrictive covenant enforcement), energy supply contracts, election disputes, wage and hour class actions, insurance and financial services claims, construction defects, toxic torts, product liability claims, corporate control disputes, FCPA investigations, and patents. He has a particular interest in technology related matters, including new media distribution, the Copyright Act, the Uniform Trade Secrets Act, and the Computer Fraud and Abuse Act.
Mr. Chiou is an associate in the Firm's Litigation Department and a member of the Complex Commercial Litigation Practice. He has extensive litigation experience in federal and state courts, focusing on complex commercial disputes arising from breach of contract, fraud, employment, and tort issues. Mr. Chiou has also represented individuals and corporations in white collar criminal defense matters, including internal corporate and government investigations. Illustrative matters have involved alleged stock option backdating, FCPA violations, insider trading, and environmental crimes relating to the Clean Air Act.
Practice Groups:
Class Action
Complex Commercial Litigation
Litigation Department
Technology Litigation
6/7/2010
Solovy Delivers Commencement Address at John Marshall Law School Graduation and Receives Honorary Degree
Chairman Emeritus Jerold S. Solovy delivered the commencement address to 320 degree recipients of the John Marshall Law School and also received an Honorary Doctor of Laws degree from the school during its graduation ceremony on May 23, 2010.
In his speech, Mr. Solovy told the graduates that the law is not static and that, in their hands, it can be an instrument of social justice. He noted the example of the life of retired Federal District Court Judge George N. Leighton, who had only completed seventh grade by the age of 17 but went on to graduate from Harvard Law School and become a highly distinguished lawyer and judge, with a legal career that included significant and landmark cases securing constitutional rights for criminal defendants. Mr. Solovy also recounted two of the most professionally satisfying cases of his own 55-year legal career, Witherspoon v. Illinois and Kohrig v. Illinois. In the first, he helped stop a planned execution of a pro bono client on constitutional grounds, a few weeks before the execution was scheduled to occur, and, as a result of the U.S. Supreme Court’s decision in the case, 350 other people on Death Rows across the country were also not executed. In Kohrig, Mr. Solovy successfully defended the Illinois mandatory seat belt law against constitutional challenges, in the first review of such a law by any state supreme court, another result that has saved hundreds of thousands of lives.
Paraphrasing Dr. Martin Luther King and President Obama, Mr. Solovy challenged the graduating class to take on, as its mission, “bending the arc of the moral universe” towards justice.
In conferring the honorary degree upon Mr. Solovy, the law school called him “one of the preeminent lawyers in the country,” cited his “tenacious commitment to the highest ideals of the profession and…unwavering dedication to advancing justice,” and recognized his “impact on the legal community and the world at large.”
Practice Groups:
Litigation Department
6/7/2010
Terri L. Mascherin Installed as President of Chicago Bar Association
Jenner & Block Partner Terri L. Mascherin was installed as President of the Chicago Bar Association (CBA) at the organization’s annual meeting on Thursday, June 17, 2010. She will serve a one-year term.
Ms. Mascherin, who was recognized as one of the “50 Most Influential Women Lawyers in America” by The National Law Journal in 2007, became the seventh female president of the 137 year-old CBA, one of the largest municipal bar associations in the world. During her tenure in office, she intends to lead programs and initiatives advancing professionalism and the core values of the legal profession, including finding ways for members to strengthen their commitment to the Bar and service to the public through involvement in the CBA.
“Practicing law is a privilege, and as lawyers, we have a special role in society to ensure the effective administration of justice for all people,” Ms. Mascherin said. “I am looking forward to working with my colleagues to broaden opportunities for attorneys to engage in pro bono and public service work, and to enhance the CBA’s programs and offerings to further the unique values of our profession.”
Ms. Mascherin is a partner in the Firm's Litigation Department and a member of the Complex Commercial Litigation; International Arbitration; and Unfair Competition, False Advertising and Lanham Act Practices. She is also a member of the Firm's Management, Diversity and Women’s Forum Steering Committees and Co-Chair of the Marketing and Business Development Committee. Her practice focuses on complex commercial litigation and includes representing clients in trials, appeals and regulatory appeals in state and federal courts throughout the United States, as well as arbitrating domestic and international disputes. Most recently, she was a leader on a Firm team that secured a $101 million jury verdict on behalf of an S&P 500 client in a tortious interference case arising from the acquisition of a REIT, which was cited by The National Law Journal as one of the largest jury verdicts of 2009. In addition, she has a very active pro bono practice that includes successfully challenging the death sentences of two men on Illinois' death row and defending challenges to the clemency orders issued by former Illinois Governor George Ryan.
Ms. Mascherin is a longtime leader in the CBA and in other organizations within the legal profession. She previously served as CBA First Vice-President; Second Vice-President; Treasurer; Chair of its Strategic Planning, Finance, and Membership Committees; member of the Board of Managers; member of the Executive Council of the Association’s Young Lawyers’ Section; and Chair of the Young Lawyers’ Section Committee on Professional Responsibility. She has also served on the CBA’s Judicial Evaluation Committee and is a member of the Chicago Bar Association Alliance for Women.
Ms. Mascherin is a member and past Chair of the Northwestern University Law School Board. She co-chaired the Northwestern University Law School Strategic Planning Working Group in 2007-08, was the keynote speaker for the 2007 Northwestern University School of Law Commencement Ceremony and received a Northwestern University Alumni Service Award in 2009. She is a member and past Chair of the Steering Committee of the American Bar Association’s Death Penalty Representation Project.
Since 2006, Ms. Mascherin has been recognized by her peers annually in Best Lawyers in America and honored by Illinois Super Lawyers as one of Illinois’ top business litigators and top 50 women lawyers in the state. She received the First Defense Legal Aid’s 2010 First Defender Award, the 2004 Cunningham Carey Award from the Illinois Coalition to Abolish the Death Penalty and the 2002 Outstanding Legal Service Award given by the National Coalition to Abolish the Death Penalty, for her representation of those on death row and her work to promote effective representation of defendants in capital cases.
Ms. Mascherin received her AB degree, magna cum laude, from Duke University, completing dual majors in public policy studies (concentration in health policy) and history. She was among the first recipients of the President’s Senior Leadership Award at Duke. She received her JD from the Northwestern University Law School, cum laude, where she graduated Order of the Coif. While at Northwestern, she served as managing editor of the Journal of Criminal Law & Criminology and as co-chairperson of the Julius H. Miner Moot Court Board. Ms. Mascherin is a member of the bars of the United States Supreme Court, State of Illinois, Seventh Circuit Court of Appeals, United States District Court for the Northern District of Illinois (including the Trial Bar) and several other federal district courts and courts of appeals.
Pictured, top (from left): Ms. Mascherin receiving the CBA president’s gavel from outgoing president Anita M. Alvarez during the installation luncheon.
Pictured, second from top: Ms. Mascherin speaking at the installation luncheon.
Pictured, bottom (from left): Mr. Solovy, Ms. Mascherin and Ms. Levy at Jenner & Block’s reception in honor of Ms. Mascherin's installation.
Practice Groups:
Complex Commercial Litigation
International Arbitration
Litigation Department
Unfair Competition, False Advertising and Lanham Act
Related Document(s):
Click here to view a profile on Ms. Mascherin as CBA President in the Chicago Daily Law Bulletin
6/7/2010
Jenner & Block Team Secures Significant Victory for Pro Bono Asylum Client
A Jenner & Block team won a significant victory for a pro bono asylum client when, on May 20, 2010, the Ninth Circuit Court of Appeals granted his petition to review a denial by the Board of Immigration Appeals to reopen his case based on changed country conditions.
The client, Magdy Azer, is a 53-year-old Egyptian Coptic Christian who has consistently and publicly opposed the Egyptian government and certain fundamentalist Muslim groups in Egypt. After being persecuted by Muslim extremists, he entered the United States as a non-immigrant visitor on September 15, 1995, seeking political asylum. Although he testified about numerous, specific instances of persecution while he lived in Egypt, the Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) rejected his requests for asylum. The BIA later denied several motions to reopen that further demonstrated the atrocities he and his family suffered after the hearing before the IJ. Conditions in Egypt only worsened after Mr. Azer was denied asylum and withholding of removal.
In remanding Mr. Azer’s case to the BIA with directions to reopen, the Ninth Circuit ruled that the BIA’s determination that his motion to reopen was untimely was incorrect and an abuse of discretion, because a motion to reopen based on changed country conditions may be filed at any time. There was no dispute that the evidence was material and was not available at the time of Mr. Azer’s 1997 asylum hearing. By focusing only on timing, the Court concluded, the BIA failed to examine the evidence or the equities weighing in Mr. Azer’s favor.
The Court further found that, to the extent that the BIA denied Mr. Azer’s motion to reopen because it believed he filed it only because he was taken into custody by the Department of Homeland Security, the Board abused its discretion by making a credibility finding. A credibility finding is generally impermissible at the motion-to-reopen stage.
Finally, the Court found that the record threw doubt on the BIA’s determination that Mr. Azer lacked due diligence in pursuing his claim.
Associate Damon Thayer was Mr. Azer’s amicus curiae counsel through the Ninth Circuit’s Pro Bono Program and presented oral argument in the case; the Court’s decision relied on several arguments he set forth. The L.A. team on this matter also included Partners Jerry Oshinsky and Ken Lee and Associate Jean Doherty.
Practice Groups:
Litigation Department
6/1/2010
Jenner & Block Creates Real Estate Finance Litigation and Workout Task Force to Aid Clients in the Commercial Real Estate Crisis
With a predicted $1.4 trillion in loans due to reach term limits between 2010 and 2014 for significantly undervalued properties, the commercial real estate market crisis promises to become even more challenging and complex. Property values have decreased in excess of 40% since 2007 in some cases and over half the loans due could be considered “underwater.” In anticipation of this continuing crisis and the challenges our clients may face Jenner & Block has formed a Real Estate Finance Litigation and Workout Task Force.
“Jenner & Block has a longstanding reputation for helping our clients anticipate and navigate complex business disputes,” said Jenner & Block Managing Partner Susan C. Levy. “Consistent with this tradition, we have launched a Task Force comprised of our most experienced partners who are combining forces to meet the challenges of the continued and ever increasing meltdown in the commercial real estate market.”
Drawing from decades of cross-disciplinary experience in all legal areas relevant to the commercial real estate crisis, the Task Force unites litigators skilled in resolving complex real estate finance issues with attorneys who have structured deals and workouts, restructured loans and handled bankruptcy matters in connection with signature commercial real estate properties across the country -- creating a unique resource for clients grappling with the recent economic fallout.
Dedicated to achieving the most favorable results for clients at any point fallout may occur during the commercial real estate crisis, from deal making to litigation, members of the Task Force have not only protected clients’ interests throughout the first wave of the crisis, but continue to help our clients recover their losses due to this unfolding crisis.
Task Force attorneys have represented numerous developers, realty and holding companies, and financial institutions in loan workouts and restructuring. They have represented clients in bankruptcy proceedings including debtors, lenders, creditors’ committees, private and public companies, members of the hospitality industry and REITs. Task Force litigators have represented financial services companies, developer groups, REITs and international hotel chains in real estate finance litigation, arbitrations and mediation across the country. Together, the Task Force has achieved impressive results for clients in the face of the crisis and is well-equipped to provide future guidance and relief as the crisis continues.
The Task Force is anchored by the Co-Chair of Jenner & Block’s Litigation Department, David J. Bradford; the Chair of the Bankruptcy, Workout and Corporate Reorganization Practice, Daniel R. Murray; the Chair of the Real Estate Practice, Donald I. Resnick, and the Co-Chair of the Complex Commercial Litigation Practice, Barbara S. Steiner.
Please click here for more details about the scope of the task force, our record of successful resolutions to client matters and task force member experience.
Practice Groups:
Bankruptcy, Workout and Corporate Reorganization
Complex Commercial Litigation
Litigation Department
Real Estate
Related Document(s):
Please click here to view a copy of the Chicago Daily Law Buttetin profile on the Task Force.
5/28/2010
Masters Selected As Delegate to Vision 2020 “Equality in Sight” Project
Jenner & Block Partner Lorelie S. Masters is one of two women from Washington, DC recently selected as a Vision 2020 “Equality in Sight” National Delegate. Vision 2020 is a ten-year long national project focused on advancing gender equality by energizing the dialogue about women and leadership. More than 1,000 people made nominations and 102 delegates, two from each state and the District of Columbia, were chosen nationwide. In selecting the delegates, the project, which was spearheaded by the Drexel University College of Medicine, looked for “leaders who had a conscience about yesterday, a commitment to today and an unquenchable curiosity about what’s possible tomorrow.”
In 1920, the 19th Amendment to the United States Constitution was ratified, guaranteeing women the right to vote. Vision 2020 “takes on the unfinished business of the suffragists” in their pursuit of equality. The National Delegates will determine an agenda for actions necessary to overcome barriers to equality and establish measurable objectives for the decade ahead in the areas of arts and culture; business, law and finance; communication and media; education; health; philanthropy, faith and volunteerism; politics and government; and science, technology and engineering. The Project will also establish a series of celebrations in 2020 to mark the 100th anniversary of the Amendment’s passage.
Ms. Masters is a Partner in the Firm’s Litigation Department and a member of the Insurance Litigation and Counseling and Climate and Clean Technology Law Practices. She has more than 25 years of experience representing policyholders and is the co-author of two treatises on insurance coverage issues. Ms. Masters is regularly recognized as one of the country’s leading lawyers in insurance law by Chambers & Partners USA, Washington DC Super Lawyers, and Best Lawyers in America. She is Past President of the Women’s Bar Association of DC and was recently appointed to the American Bar Association’s 12-member Commission on Women in the Profession, co-chairing the Commission’s Women of Color Committee. In the Fall of 2010, Ms. Masters will join the ABA Section of Litigation Council. She also serves on the Boards of DC Vote, DC Appleseed, and the Women’s Campaign Forum.
Please click here for additional information.
Practice Groups:
Climate and Clean Technology Law
Insurance Litigation and Counseling
Litigation Department
5/18/2010
Firm Secures Victory for Cayuga Indian Nation in New York’s Highest Court
Jenner & Block Partner David W. DeBruin led a team that secured a major victory for the Firm’s client the Cayuga Indian Nation with a 4-3 decision in the New York Court of Appeals. The decision by New York’s highest court is the culmination of litigation that the firm initiated for the Cayuga Nation in late 2008.
The case arises from efforts by local prosecutors to prosecute the Cayuga Nation and its leaders. In 2008, sheriffs in two counties raided two gas station convenience stores operated by the Cayuga Nation in New York, seizing, pursuant to search warrants, hundreds of thousands of dollars worth of cigarettes that did not bear New York state tax stamps. It generally is a felony offense in New York to sell “unstamped” cigarettes. The very next day, the Cayuga Nation, led by a Jenner & Block team and local counsel, filed an action for a declaratory judgment and an injunction against the sheriffs and local district attorneys, contending that the New York criminal tax statutes at issue did not apply on a qualified Indian reservation, and that the Cayuga Nation’s two stores were located on such a reservation. The Cayugas had acquired the stores in 2003, within the historic federal treaty reservation set aside for the Cayugas in the late 1700s. The Cayugas had lost all of that reservation land in the early 1800s.
Shortly after the Nation filed the civil action, the county prosecutors obtained felony indictments against the Nation’s business and two Nation officials. Those indictments have never been unsealed, however, as a result of the Nation's civil action. The state trial court ruled against the Nation, holding that only stamped cigarettes could be sold to non-Cayuga members on reservation lands, and that the two Cayuga stores were not a “qualified reservation” in any event. The Nation, led by Jenner & Block and Syracuse counsel Daniel French and Lee Alcott, was able to obtain an injunction against prosecution from the intermediate Appellate Division to preserve the status quo pending appeal. The Appellate Division then ruled in favor of the Nation in a 4-1 vote, but certified the case to the state’s highest court. There, the case attracted amicus briefs from the United States (for the Cayuga), New York State and New York City (against the Cayuga), and numerous other entities. The case had broad ramifications for many different Indian nations in New York.
On May 11, 2010, the Court of Appeals affirmed the Appellate Division. In a 54-page opinion written by Judge Victoria Graffeo, the Court of Appeals accepted each principal argument made by the Cayugas: that the civil action was not procedurally barred, even though it was filed after the search warrants were executed, because it had been brought before the indictments were obtained; that the Nation’s federal treaty reservation still exists, and the two stores owned by the Nation within those boundaries qualify for special “reservation” treatment; and that New York State has chosen not to require Indian tribes to collect state excise taxes on “reservation” sales to non-Indians. As a result of the quick action taken by the Cayuga Nation, the indictments at issue should never be unsealed.
Mr. DeBruin argued the case in the New York Court of Appeals and led the Firm’s team which included Partners Kali N. Bracey, Craig A. Cowie and Martina E. Vandenberg, Associates David Z. Moskowitz, Matthew E. Price, Joshua M. Segal and Daniel I. Weiner and former partners Ian Gershengorn and Sam Hirsch.
Practice Groups:
Complex Commercial Litigation
Corporate
Litigation Department
Related Document(s):
Please click here to view the decision.
5/11/2010
Weissmann Testifies Before Senate Judiciary Subcommittee on Financial Reform Bill
Jenner & Block Partner Andrew Weissmann testified at a hearing held by the United States Senate Judiciary Committee Subcommittee on May 4, 2010. The topic of the hearing was “Wall Street and Fiduciary Duties: Can Jail Time Serve as an Adequate Deterrent for Willful Violations?” The purpose of the hearing was to consider whether Congress should impose a fiduciary duty on broker-dealers and investment banks and criminalize breaches of such a duty.
In his testimony, Mr. Weissmann said: "While it is tempting to think that we have not learned the lessons from Enron, we have yet to see the kind of systemic fraud that occurred in that institution. Moreover, to the extent that there is misconduct at play here -- and inevitably there will be some, since Wall Street is not immune from crime -- there are strong and abundant tools already at the government’s disposal, if it were to choose to use them. Thus, even if the prescription for the current crisis is in part to impose jail time for certain Wall Street misconduct, that goal does not necessitate creating additional federal crimes.”
Mr. Weissmann testified with respect to the creation of a new criminal fiduciary duty, that it is better to deal with an issue directly if there is a perceived problem, "than to use the criminal law to impose a vague stricture that would leave the government with unwarranted discretion and the public without the certainty of clear rules.”
Finally, he said at the hearing that there already were significant, serious civil sanctions at the government's disposal that, for corporations, could be more painful than criminal indictments. He testified that the main way to prevent financial wrongdoing is not to create another redundant criminal statute, but to have regulators enforce current laws. “Putting yet another law on the books might sound good to the public in that Congress is interested in making sure something happens, but it won’t assure that someone actually implements it,” Mr. Weissmann told the Subcommittee.
Mr. Weissmann is Co-Chair of the Firm's White Collar Defense & Investigations Practice. He is former Director of the Enron Task Force, Chief of the Criminal Division of the U.S. Attorney’s Office in New York, and Special Counsel to the Director of the FBI. An internationally-recognized white collar litigator, Mr. Weissmann has represented U.S. and foreign corporations and executives in connection with criminal and civil investigations and lawsuits, including representation before the Department of Justice, the Securities and Exchange Commission, arbitrations, and state and local authorities. He has tried numerous criminal and civil cases, and recently obtained a $431 million award, the largest FINRA (Financial Industry Regulatory Authority) award in its history, in an auction-rate securities case.
To view a copy of Mr. Weissmann’s testimony, please click here.
Practice Groups:
Litigation Department
White Collar Defense and Investigations
5/7/2010
Partner Secures Unanimous Supreme Court Ruling in Hui v. Castenada
Jenner & Block Partner Elaine J. Goldenberg secured a unanimous 9-0 victory following her March 2 argument before the United States Supreme Court in Hui v. Castaneda. In Ms. Goldenberg’s first argument before the Supreme Court, she successfully obtained a ruling that officers and employees of the federal Public Health Service have absolute personal immunity under 42 U.S.C. § 233(a) from constitutional claims arising from the performance of their medical or related duties.
The case involved Francisco Castaneda, an immigration detainee who became ill while in the San Diego Corrections Facility and was eventually diagnosed with metastatic cancer. Prior to his death, Mr. Castaneda filed a lawsuit raising medical negligence claims against the United States under the Federal Tort Claims Act and Bivens claims (asserting violation of the Fifth Amendment) against two Public Health Service workers, including a commissioned PHS officer who is the Firm’s client. The district court denied the defendants’ motion to dismiss the suit against the individuals, holding that under 42 U.S.C. § 233(a) they were not immune from constitutional claims. The Ninth Circuit affirmed and the Supreme Court granted certiorari.
Delivering the opinion of the Court, Justice Sotomayor wrote that § 233(a) “grants absolute immunity to PHS officers and employees for actions arising out of the performance of medical or related functions within the scope of their employment by barring all actions against them for such conduct. By its terms, § 233(a) limits recovery for such conduct to suits against the United States.” The Court explained that “[e]ven in circumstances in which a Bivens remedy is generally available, an action under Bivens will be defeated if the defendant is immune from suit.” The Court concluded that “the text of § 233(a) plainly indicates that it precludes a Bivens action against petitioners for the harm alleged in this case. Respondents offer three arguments in support of their claim that it does not. None persuades us that § 233(a) means something other than what it says.”
Jenner & Block’s client, a health services administrator who played virtually no role in Mr. Castaneda’s medical care, has been released from the threat of personal liability. More broadly, the decision helps ensure that the Public Health Service (and other federal entities, as to which statutes similar to § 233(a) apply) can continue to recruit and retain qualified doctors, who are unable to obtain adequate private malpractice insurance on a government salary.
The Firm’s team representing the petitioner also included partners Paul M. Smith, William M. Hohengarten, and Matthew S. Hellman, and Associates Jessica Ring Amunson, Joshua A. Block, Anna M. Baldwin, and Christopher J. Deal.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here for a copy of the decision.
5/6/2010
Jenner & Block Named "2010 U.S. Copyright Firm of the Year" by Managing Intellectual Property
Jenner & Block was recently named the “2010 U.S. Copyright Firm of the Year” and the “Copyright Firm of the Year -- West” in the regional division by Managing Intellectual Property. Partner Steven B. Fabrizio and Andrew H. Bart, Co-Chairs of the Firm’s Creative Content practice group accepted this honor at MIP’s 2010 North American Awards Ceremony in Washington, DC.
Firms awarded in MIP’s North American Awards ceremony “have been distinguished by their peers and clients for their exceptional cumulative achievements over the past year.” Awards are given to firms who demonstrate the most “innovative and challenging IP work” and to “outstanding individuals driving the IP market at the highest level.”
Jenner & Block and its Creative Content practice group have been involved in numerous cases that are on the cutting edge of copyright law. The Firm represents Viacom in its high-profile lawsuit against YouTube and Google for “massive intentional copyright infringement” of Viacom’s works. Over the past two years the practice group secured two high-profile victories on behalf of the Motion Picture Association of America and its motion picture studio members in connection with copyright infringement by operators of BitTorrent services. The group also recently obtained a summary judgment ruling on behalf of a group of major recording companies in their copyright infringement lawsuit against a commercial USENET server operator. Representing the first published decision finding a USENET operator liable for copyright infringement, Billboard Business News reported that, “the Usenet.com opinion will likely be cited as an important precedent in the fight against services that facilitate piracy.”
The Firm’s Creative Content practice also continued its string of victories for content owners with a decision from the Second Circuit in favor of the estate of Elaine Steinbeck, widow of author John Steinbeck, putting to rest a decades-long dispute over the rights to Steinbeck’s classic literary works such as “Of Mice and Men” and “The Grapes of Wrath.”
The Creative Content group’s recent successes also includes litigating rate-setting proceedings before the U.S. Copyright Royalty Board (CRB) to ensure that copyright holders and artists achieve fair royalty rates when their creations are performed over the internet, via satellite, and over other media. With hundreds of millions of dollars at stake over the rate periods, these proceedings are critically important to the affected industries. The Firm is currently representing SoundExchange, Inc., the non-profit entity that collects royalty payments and distributes them to record companies and artists, in a proceeding to set the rates for non-interactive Internet Radio. In prior CRB proceedings, the Firm helped SoundExchange obtain significant increases in the royalty rates paid by Internet radio webcasters and by satellite radio stations.
Partners Steven B. Fabrizio, Paul M. Smith and Andrew H. Bart serve as Co-Chairs of the Creative Content practice group that consists of Jenner & Block Managing Partner for the Washington, DC office Michael B. DeSanctis and Partners Craig A. Cowie, Steven R. Englund, Katherine A. Fallow, Jared O. Freedman, David A. Handzo, Susan J. Kohlmann, Duane C. Pozza and Gianni P. Servodidio along with Associates Farnaz M. Alemi, Carrie F. Apfel, Anjan Choudhury, Michelle A. Groman, Carletta F. Higginson, Sarah A. Maguire, Joseph J. McFadden, Jonathan F. Olin, Luke C. Platzer and Sharmila Sohoni.
A full article featuring MIP awards for Jenner & Block was published in the May issue of Managing Intellectual Property.
Practice Groups:
Creative Content
Litigation Department
Related Document(s):
Please click here for more information.
5/3/2010
Gray Speaks at Investiture Ceremony of Seventh Circuit Judge David Hamilton
Jenner & Block Partner Richard J. Gray, representing the American Bar Association’s Standing Committee on the Federal Judiciary, spoke at the Investiture Ceremony of Judge David F. Hamilton, who was sworn in as a Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit on April 9, 2010, at the United States Courthouse in Indianapolis, Indiana.
The Standing Committee, which is comprised of representatives from each of the circuits, evaluates qualifications of prospective federal judicial nominees. In his remarks, Mr. Gray, who was the Seventh Circuit’s representative to the Standing Committee until his three-year term expired in August 2009, recounted that it had been his honor to initiate Judge Hamilton’s review when the judge became the first judicial candidate sent to the Committee by President Obama.
“The Committee focuses its review on three criteria: integrity, professional competence and judicial temperament…I am very pleased to report, as a result of its review, the ABA’s Standing Committee on the Federal Judiciary found David Hamilton well qualified for membership on the Seventh Circuit Court of Appeals,” Mr. Gray said, adding, “The Committee did not confer this well-qualified rating. David Hamilton earned it.
The ABA Committee has been evaluating federal judicial nominees, including United States Supreme Court nominees, for more than 50 years. Its review is nonpartisan, non-ideological and restricted to issues bearing on professional qualifications. The Committee serves as a conduit through which the views of the bench and bar are communicated to the Administration and the Senate. Each member of the Standing Committee spends roughly 1,000 hours per year on a voluntary basis to provide this vital public service.
Practice Groups:
Complex Commercial Litigation
Litigation Department
Related Document(s):
Please click here to view the program.
4/30/2010
Jenner & Block Secures Significant Win for Viacom, Inc. Over Patent Related to Rock Band Video Game Lawsuit
In an important victory for Firm clients Viacom, Inc., its subsidiary Harmonix Music Systems Inc., and video game distributor Electronic Arts, Inc., the United States District Court for the District of Nevada dismissed patent infringement claims against them relating to the Rock Band video game.
In dismissing the Complaint of the inventor and his prosecuting attorney in the issuance of the patent, Judge James C. Mahan accepted the affirmative defense put forth by the Jenner & Block team on behalf of the defendants. Specifically, they alleged that the plaintiffs intentionally deceived the U.S. Patent and Trademark Office by withholding information from the Examiner assigned to their patent application that they knew to be material to the issuance of the sought-after patents, notwithstanding the duties of candor, good faith and honesty they owed to the USPTO.
The Court sustained the defendants’ affirmative defenses, granted the defendants’ counterclaims seeking a declaration that inequitable conduct occurred in the prosecution of the relevant patents, held the patents unenforceable and dismissed the plaintiffs’ Complaint with prejudice.
In issuing his decision, Judge Mahan stated, “In entering these findings, the Court is mindful that the Federal Circuit has criticized the frequent assertion by defendants in patent cases of baseless allegations of inequitable conduct and has instructed the District Courts to adhere strictly to the Federal Circuit’s requirements for findings of inequitable conduct, including the clear and convincing burden of proof placed on defendants. Applying the Federal Circuit’s standards, Defendants have satisfied their burden here.”
The Firm’s team was led by Partner Richard F. Ziegler and included Partner Patrick L. Patras and Associate Benjamin J. Bradford. The case is 1st Media, LLC v. Electronic Arts, Inc., et al. The Jenner team worked closely with counsel for co-defendant Sony Computer Entertainment America in obtaining this trial ruling.
Practice Groups:
Intellectual Property
Litigation Department
4/29/2010
Barry Levenstam Receives Seventh Circuit Bar Association’s First Pro Bono Award
Jenner & Block Partner Barry Levenstam will receive the Seventh Circuit Bar Association’s First Annual Justice John Paul Stevens Pro Bono Award, in recognition of his career-long commitment to pro bono service in the United States Court of Appeals for the Seventh Circuit. The Association will present the Stevens Award to Mr. Levenstam on Monday, May 3, as part of the 59th Annual Meeting of the Seventh Circuit Bar Association and Judicial Conference of the Seventh Circuit.
“We were especially impressed with the unwavering nature of your pro bono commitment,” the Association said in its letter notifying Mr. Levenstam that he is the inaugural winner of this award, which is named after U.S. Supreme Court Justice John Paul Stevens. The award is given based on significant pro bono or public service work in the federal courts within the Seventh Circuit and practice “at the highest degree of excellence and ethics,” according to the Association, which told Mr. Levenstam, “Your calling to pro bono service was evident to the Seventh Circuit Bar Association, and it should be celebrated by all.”
Mr. Levenstam was recognized by the Association for the body of his pro bono service before the Seventh Circuit. He has written briefs or argued orally on behalf of more than 75 pro bono clients in the Seventh Circuit alone. As the Firm’s Pro Bono Committee co-chair from 2000 to 2009, and frequently as appointed counsel in the Seventh Circuit, he has worked with countless young Jenner & Block attorneys seeking to gain pro bono and Seventh Circuit experience.
Mr. Levenstam’s pro bono work in the Seventh Circuit has its roots in the mentoring he received from Firm Chairman Emeritus Jerold S. Solovy, and from former Jenner & Block partner and Seventh Circuit judge, the late Philip W. Tone, for whom Mr. Levenstam clerked from 1978 to 1979. Mr. Levenstam took on his first pro bono client in the Seventh Circuit, Alonzo Jones, shortly after joining the firm as an associate in 1979. Mr. Jones had been sentenced to death for the murder of three correctional officers during the 1965 Menard prison riot, but his death sentence had been vacated under Furman and he was serving three 150 to 300-year terms when Mr. Levenstam began to represent him. Mr. Levenstam continued to represent Mr. Jones until he succeeded in getting Mr. Jones paroled in the mid-1990s; Mr. Levenstam then saw Mr. Jones through the successful completion of his term of parole late in the 1990s, when Mr. Jones was able to return to his family in Tennessee. Since then, Mr. Levenstam has been involved in numerous other pro bono criminal and habeas corpus cases, including three death penalty matters in the Seventh Circuit.
In addition to his representation of criminal defendants and prisoners, Mr. Levenstam has handled several civil cases on a pro bono basis in the Seventh Circuit. For example, he represented the Alliance for the Great Lakes and the Friends of Milwaukee Rivers in their fight to prevent the use of Lake Michigan and its waterways for the dumping of raw sewage overflow. He also represented another environmental organization in its challenge to clear-cutting plans in the Shawnee National Forest.
Most recently, Mr. Levenstam was involved in a novel situation when he advocated as amicus in a case presenting the question of whether the use of video-conferencing to conduct a supervised release revocation hearing violated the Federal Rules of Criminal Procedure or the Fifth Amendment’s Due Process Clause. Because the government conceded error, the appellate court appointed Mr. Levenstam to defend the district court’s procedure. Although the Court of Appeals ultimately concluded that video-conference for this purpose does violate the Federal Rules, the Court, in a footnote to its opinion, thanked Mr. Levenstam and the Jenner & Block team for “ably discharging the responsibility” as amicus with which they had been charged.
Mr. Levenstam is a partner in the Firm’s Litigation Department and a member of the Appellate and Supreme Court Practice, the Class Action Practice and the ERISA Litigation Practice. In 1995, the Federal Bar Association awarded him the Walter J. Cummings Award for “excellence in advocacy on the part of appointed counsel” before the Seventh Circuit. In 1998, Mr. Levenstam was elected to membership in the American Law Institute and, in 1999, he was admitted to the American Academy of Appellate Lawyers.
Mr. Levenstam has participated in Seventh Circuit-sponsored seminars teaching attorneys to represent parties on appeal in appointed cases, spoken at Seventh Circuit judicial conferences, and lectured for the Seventh Circuit Bar Association, the Federal Bar Association, the Illinois Institute for Continuing Legal Education and the DuPage County Bar Association. He is the lead author of two chapters in The Attorney’s Guide to the Seventh Circuit Court of Appeals (3d ed. 2005), which he updates annually. One chapter deals with habeas corpus law and the second addresses judicial review of administrative decisions.
Mr. Levenstam graduated summa cum laude and Phi Beta Kappa from the University of Illinois at Urbana-Champaign in 1975. In 1978, he graduated magna cum laude from the University of Illinois College of Law where he was a member of the Board of Editors of the Law Review and was elected to the Order of the Coif. While in law school, he served as a law clerk for the Honorable Robert J. Steigmann, then circuit court judge in Champaign County (now a Justice of the Illinois Appellate Court). He is the incoming President of the Board of Directors of the Respiratory Health Association of Metropolitan Chicago and also serves on the Board of the Youth Choral Theater of Chicago.
Practice Groups:
Appellate and Supreme Court Practice
Class Action
ERISA Litigation
Litigation Department
4/22/2010
National Law Journal Recognizes Jenner & Block’s Appellate Practice for Second Year in a Row
Jenner & Block was recognized by The National Law Journal in the newspaper’s 2010 “Appellate Hot List” which denotes 20 law firms across the country that made “singular contributions to appellate practice during the past year,” that “earned at least one significant appellate win since January 2009,” and that “could boast an impressive track record overall.” This is the second year in a row that the Firm was honored with this designation.
In recognizing Jenner & Block, The National Law Journal noted that the Firm argued 24 cases before the U.S. Supreme Court during the last seven years. The newspaper also highlighted three of Jenner & Block’s recent appellate cases:
- Associate Lindsay C. Harrison’s victory before the U.S. Supreme Court on behalf of a pro bono asylum client in Nken v. Holder, in which the Court ruled that asylum applicants who are appealing orders of removal by the Board of Immigration Appeals in federal court should not be deported while their appeals are pending if they have a likelihood of success in their appeal and would suffer harm if deported.
- Partners Paul M. Smith and Katherine A. Fallow’s win in the Ninth Circuit for the Video Software Dealers Association in VSDA v. Schwarzenegger, which affirmed a lower court ruling blocking enforcement of a California law that attempted to restrict the sale or rental of computer and video games based on content deemed “violent,” to anyone under the age of 18. The NLJ article noted that “Since 2003, the firm has successfully represented numerous video game industry clients in challenging similar laws in several states.”
- Partner Craig C. Martin’s victory on behalf of client Olin Corp. in the Second Circuit, when the court upheld an approximately $40 million judgment affirming Olin’s claims in Olin Corp. v. Insurance Co. of North America, a 25-year-long dispute relating to excess insurance coverage for pollution remediation costs at several New York sites.
The NLJ noted that the Firm’s Appellate and Supreme Court Practice is led by “veteran Supreme Court litigator Paul Smith.” Mr. Smith said, “We’re proud of the appellate successes we have achieved for our clients and pleased that The National Law Journal has acknowledged our work by including us for this honor.”
The cases argued by the Firm have long been among the most significant. Landmark victories in the U.S. Supreme Court have included Bridge v Phoenix Bond & Indemnity (2008) (a precedent-setting decision settling a long-standing circuit split and eliminating a judicially-created obstacle to meritorious RICO claims in several jurisdictions); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (2005) (a landmark decision in favor of copyright holders versus Internet file-sharing services); Lawrence v Texas (2003) (a landmark civil rights ruling, holding all sodomy laws unconstitutional); and even Witherspoon v. Illinois (1968) (holding unconstitutional the exclusion of all jurors who object to the death penalty in a murder trial).
In March 2010, Partner Elaine J. Goldenberg argued in front of the Supreme Court in Hui and Gonzales v. Castenada, on behalf of clients who are Public Health Service employees being sued for medical malpractice. At issue is whether a statute granting absolute immunity to members of the Public Health Service, acting within the scope of their employment, covers constitutional claims. The decision may significantly affect the character of the Public Health Service and the medical care and services it provides to underserved populations.
The Firm submitted eighteen 2009-2010 appellate victories to The National Law Journal in consideration of this award, representing a wide range of matters in federal and state courts of appeals across the country and including a number of pro bono matters.
For further information about these cases and Jenner & Block’s Appellate and Supreme Court Practice, please visit:
http://www.jenner.com/practice/practice_detail.asp?ID=19
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here to view a copy of the NLJ profile on Jenner & Block.
4/1/2010
Scott Named to Crain’s New York “Forty Under 40” List
Jenner & Block Partner Kenyanna M. Scott was recently recognized by Crain’s New York in its “Forty Under 40” list for 2010. The annual listing honors “a dynamic group of New Yorkers who have excelled in their respective fields.” The 40 individuals are chosen from more than 500 nominations that are submitted and selections are based on professional achievement, community involvement and participation in professional organizations.
Ms. Scott’s profile highlights her work as a former federal prosecutor in Chicago, where her “tenacity often meant following a case right out of the courtroom,” and notes that once, “after winning convictions for dozens of players in a local drug ring, she drove by the housing development where they’d been operating so she could see the results.”
Zaldwaynaka Scott, the former chief of the criminal division at the U.S. Attorney’s Office in Chicago, told Crain’s, “I’ve seen hundreds of people come and go, and Kenyanna stands out. She had this ability to always get it right.”
The article notes Ms. Scott’s white collar defense and investigations practice at Jenner & Block, representing clients facing grand jury investigations and helping guide companies working in foreign jurisdictions known for corruption. It also points out that she devotes substantial time to pro bono cases in family court, “trying to mitigate some of the patterns she saw as a prosecutor.”
In 2007, Ms. Scott was named to Law Bulletin Publishing Company’s list of “40 Illinois Attorneys Under Forty to Watch,” and recognized for her courtroom successes, her devotion to the community and promoting diversity in the legal profession.
Before relocating to New York, Ms. Scott was a leader in the Black Women Lawyers’ Association of Greater Chicago and the Chicago Bar Association Alliance for Women. She is a Board Member of Just the Beginning Foundation, an organization whose goal is to increase diversity in the legal profession and judiciary, and a volunteer and supporter of the Sylvia and Herbert Woods Scholarship Foundation, Harlem, New York. She has taught trial advocacy seminars and workshops for the National Institute for Trial Advocacy and the University of Notre Dame Law School.
Ms. Scott obtained her J.D. from Northwestern University School of Law, where she was senior articles editor of the Northwestern University Law Review. She received her Bachelor of Arts degree in Political Science from Bates College.
Please click here to view Ms. Scott’s “Forty Under 40” profile on Crain’s website, which includes a video of Ms. Scott.
Practice Groups:
Litigation Department
White Collar Defense and Investigations
Related Document(s):
Please click here to view a pdf of Ms. Scott’s “Forty Under 40” profile
3/23/2010
Scruggs and Hooker Recognized in “Who’s Who in Black Chicago” - The Third Edition
Jenner & Block Partners Lisa T. Scruggs and Darrick J. Hooker have been profiled in the third edition of Who’s Who in Black Chicago, which celebrates the “significant accomplishments and outstanding achievements of African-American citizens” in Chicago. Ms. Scruggs and Mr. Hooker are featured in the Chicago’s Counselors at Law section. According to the publisher, inclusion in Who’s Who is reserved for those who have “made their mark” in their profession or in service to others in the Chicago community.
Ms. Scruggs is a member of the Firm’s Litigation, Business Litigation, Class Action Litigation and Public Policy Practices. Her work in public policy focuses on advising public sector clients, including school districts, on how to achieve their policy goals. Scruggs also has experience counseling non-profit organizations and schools on a variety of governance, municipal, and school law issues.
Mr. Hooker is a member of the Firm's Intellectual Property Practice. Mr. Hooker is the Chair of the African-American Affinity Group. His practice focuses on a wide range of intellectual property issues including patent litigation and counseling relating to litigation, as well as trademark and copyright issues.
Practice Groups:
Intellectual Property
Litigation Department
3/10/2010
Argument Before the U.S. Supreme Court in Hui v. Castaneda
Partner Elaine J. Goldenberg recently argued before the United States Supreme Court in Hui v. Castaneda, a case about whether a statute granting absolute immunity to members of the Public Health Service covers constitutional claims. Courthouse News and the Associated Press reported on Ms. Goldenberg’s argument on behalf of the Public Health Service employees. According to the Associated Press article, "Supreme Court justices appeared reluctant . . . to allow the family of an illegal immigrant to sue government doctors personally." According to the Courthouse News article, Ms. Goldenberg explained to the Supreme Court that the Public Health Service employees "were acting in the scope of their employment, making them immune to personal suits," and that "Congress was clear in its efforts to immunize" the employees. The article also recounted Justice Kennedy’s statement at the argument that "the nature of immunity clauses are to make the employees secure against unforeseen causes of action as well as foreseen."
The Supreme Court is expected to rule later this year.
Representing the plaintiffs in this case was a Jenner & Block team including not only Partner Elaine J. Goldenberg but also Partners Paul M. Smith, William M. Hohengarten, and Matthew S. Hellman, and Associates Jessica Ring Amunson, Joshua A. Block, Anna M. Baldwin, and Christopher J. Deal.
Ms. Goldenberg is a partner in the Firm's Litigation Department and a member of the Appellate and Supreme Court Practice and the Communications Practice. Ms. Goldenberg has been involved in a broad range of appellate and other litigation matters before federal and state courts.
Mr. Smith is a partner in the Firm's Litigation Department and a member of the Firm's Policy Committee. He is Chair of the Appellate and Supreme Court Practice and a Co-Chair of the Creative Content, Media and First Amendment, and Election Law and Redistricting Practices. Mr. Smith has had an active Supreme Court practice for two decades, including oral arguments in thirteen Supreme Court cases.
Mr. Hohengarten is a partner in the Firm's Litigation Department and a member of the Appellate and Supreme Court Practice. Mr. Hohengarten has made major contributions in cutting-edge cases involving intellectual property, antitrust, commercial law, contract, fraud, trade secrets, bankruptcy, administrative law, utility regulation, and a wide range of constitutional issues.
Mr. Hellman is a partner in the Firm's Litigation Department and is a member of the Appellate and Supreme Court Practice. Mr. Hellman’s litigation experience includes work on antitrust, administrative law, and civil liberties cases before the United States Supreme Court.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here for a copy of the Petitioner's Brief
Please click here for a copy of the Petitioner's Reply Brief
3/10/2010
Lexology Names Partner “2010 Author of the Year -- Insurance USA"
The 2010 Lexology Legal Writing Awards announced that Partner
Matthew L. Jacobs has been named the “2010 Author of the Year -- Insurance USA.” According to Lexology, nominations are based on articles which are “consistently popular with corporate counsel readers.” Mr. Jacobs was named the sole winner in the USA in the insurance category based “not only on the number of articles submitted, but also on the content of the pieces, and the total number of readers [his] writing has attracted over the last year.”
In cooperation with the Association of Corporate Counsel, Lexology delivers intelligence through its web-based application to more than 90,000 subscribers, including “corporate counsel in the vast majority of Fortune 500, FT Global 500 and FT Euro 500 companies.”
Mr. Jacobs is a partner in Jenner & Block’s Washington, DC office. He is a member of the Firm’s Litigation Department and its Insurance Litigation and Counseling, Reinsurance, Antitrust Litigation and International Arbitration Practices. Mr. Jacobs is responsible for complex, multi-party insurance coverage litigation matters in state and federal courts, and he regularly advises corporations on the availability of insurance coverage for a wide variety of claims.
Please click here for more information
Practice Groups:
Antitrust Litigation
Insurance Litigation and Counseling
International Arbitration
Litigation Department
Reinsurance Practice
3/5/2010
Firm Wins Second Dismissal for Clients in Copyright Infringement Suit
In a victory for Jenner & Block clients Cypress Hill, BMG Songs, Cypress Phunky Music, Universal Music-MCA Publishing, Soul Assassins Music, and Sony BMG Music Entertainment, the U.S. District Court for the Northern District of Illinois recently dismissed a copyright infringement claim against them, refusing to allow the plaintiff, who originally filed a lawsuit in federal court in 2003, a second opportunity to pursue his case.
The alleged infringement involved a song that plaintiff Syl Johnson claimed to have written in 1969. In the first action, Johnson alleged that his copyright in the sampled sound recording was infringed. However, during the course of the 2003 litigation, the defendants discovered that the song in question was not covered by the copyright registration at issue. Accordingly, the defendants moved for summary judgment on the ground that the plaintiff had no copyright in the recording underlying his claim. Johnson then attempted to amend his complaint to rely on his copyright in the underlying musical composition and to add a state law claim for unfair competition, but the Court denied the motion, reasoning that Johnson “had ample time to cure the defects…at an earlier date,” but sat “idly by until the case, for the most part, had been adjudicated.” Summary judgment was granted in favor of the defendants and the Court denied the plaintiff’s motion to alter the judgment from summary judgment on the merits to dismissal for lack of subject matter jurisdiction. The Court also awarded defendants attorneys' fees of $350,000.
In October 2008, the plaintiff filed a new complaint in Cook County Circuit Court, mirroring the amended complaint disallowed in the earlier federal suit and seeking relief under Illinois common law. This suit was removed to federal court based on diversity jurisdiction where, on February 26, 2010, the Court, finding that the three requirements for claim preclusion, namely, (1) identity of cause of action; (2) identity of parties; and (3) final judgment on the merits of the original suit, had been met, dismissed the suit with prejudice.
Jenner & Block Partner Andrew H. Bart, Co-Chair of the Firm's Creative Content Practice, and Associate Carletta F. Higginson represented the defendants.
Practice Groups:
Creative Content
Litigation Department
3/3/2010
Firm Secures $56.859 Million Judgment For Energy Northwest Regarding Spent Nuclear Fuel
In a victory for Firm client Energy Northwest, the U.S. Court of Federal Claims on February 26 entered judgment awarding the utility $56.859 million – all of the damages sought – for the failure of the Department of Energy (DOE) to accept and dispose of spent nuclear fuel (SNF).
Energy Northwest is a municipal corporation and joint operating agency of the State of Washington which generates electricity for its member public utility districts and municipalities. Among other power generating assets, Energy Northwest owns and operates the Columbia Generating Station, a 1,150 megawatt nuclear reactor located in southeast Washington State. As required by the Nuclear Waste Policy Act, in 1983 Energy Northwest and DOE signed a contract which required the DOE to accept and dispose of SNF generated by commercial nuclear power plants beginning in 1998 in exchange for ongoing payment of fees. DOE failed to meet the 1998 deadline, and is not anticipated to meet its obligation to dispose of SNF for a significant period into the future. As a result, Energy Northwest has spent millions to build additional SNF storage facilities to store SNF that the DOE would have otherwise removed from the Columbia facility.
After the Firm successfully obtained a summary judgment ruling in 2006 that the Government breached the contract, the Government raised a number of defenses to Energy Northwest’s damages claim, including an argument that Energy Northwest acted unreasonably in mitigating its damages, several causation arguments, and other challenges to individual elements of the damages claim.
The Firm tried the damages issues at a three-week trial in February 2009. At the trial, the Jenner & Block team presented 12 witnesses, including Energy Northwest’s CEO, its former Chief Nuclear Officer, and three expert witnesses. The Firm’s team also cross-examined five Government witnesses, including three Government experts, and completed post-trial briefing in June 2009.
The court’s opinion rejected the Government’s arguments and defenses to Energy Northwest’s claimed damages. Relying on the testimony of the Energy Northwest fact and expert witnesses, the Judge concluded that Energy Northwest had acted reasonably in mitigating its damages, and that the Government’s causation arguments were without merit. The court also did not accept the Government’s challenges to individual portions of Energy Northwest’s damages claim.
The Firm’s team on this matter was led by Partner Norman M. Hirsch, and included Partners David Jiménez-Ekman and Christopher Tompkins and Associates April A. Otterberg and Anne P. Ray. Partner William D. Heinz provided valuable advice and counsel. In addition, Of Counsel Lisa M. Eddington and Associate Joshua Rafsky made significant contributions at various stages of the case. Current Associates Christine P. Benavente, David E. Hutchinson, Michael H. Margolis and Jacob P. Zipfel conducted valuable research projects when they were summer associates at the Firm.
Practice Groups:
Litigation Department
3/1/2010
Washington, DC Super Lawyers Recognizes Nine Jenner & Block Attorneys
Nine Jenner & Block Partners in the Washington, DC office were recently named Washington, DC Super Lawyers in its annual guide to lawyers who “have attained a high degree of peer recognition and professional achievement.”
The 2010 honorees are:
Mr. Smith was also listed in the "Top 100," composed of the lawyers in the Washington, DC area who received the 100 highest point totals in the Super Lawyers review and research process.
Published in the March 2010 issue of Washington, DC Super Lawyers magazine, the list recognizes attorneys through a comprehensive, peer-reviewed based evaluation process, which includes surveying thousands of attorneys and asking them to nominate the best attorneys they had personally observed in action. Nominees were scored based on the number of votes they received, with more weight given to votes from outside their own firm.
Practice Groups:
Appellate and Supreme Court Practice
Creative Content
Government Contracts
Insurance Coverage Disputes
Litigation Department
Securities Litigation
2/12/2010
Seventh Circuit Affirms Dismissal of RICO Suit Against Jenner & Block Clients as "Groundless"
In a victory for Jenner & Block clients, Stephen Tillery, Steven Katz and Douglas Sprong, the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of a RICO lawsuit filed by ex-partner of their law firm, Rex Carr. Carr alleged that he had been defrauded in the division of fees earned in the successful prosecution of a number of ERISA cases against major corporations that resulted in substantial recoveries for retired employees who elected to take their pensions in lump sums rather than wait upon age-65 annuities. The RICO suit was the latest in a series of actions brought and dismissed by Carr in the Illinois state courts. The District Court dismissed the current case on the basis of res judicata and the Illinois one-refiling rule.
The Seventh Circuit upheld the lower court’s dismissal of the case, but reversed that court's denial of defendants' motion for sanctions and remanded with directions to assess a proper monetary sanction against plaintiff and his counsel for pursuing “groundless" litigation undertaken with a "motive to harass." The Seventh Circuit noted that in his federal suit, Carr had repackaged the allegations contained in four suits he previously filed in the Illinois courts, which he dismissed within days of filing the federal suit. The Seventh Circuit also recommended the district court to consider enjoining Carr from conducting further litigation over the distribution of legal fees from his former law firm.
Jenner & Block Partners Lee A. Freeman and James T. Malysiak and Of Counsel Richard P. Campbell handled the case for defendants, and Mr. Freeman argued in the Seventh Circuit.
Practice Groups:
Appellate and Supreme Court Practice
ERISA Litigation
Litigation Department
2/9/2010
Jenner & Block Defeats All EEOC Title VII Sexual Harassment Claims Against National Trucking Company and Obtains $4.5 Million Fee Award
On February 9, 2010 the Chief Judge of the Northern District of Iowa entered an order granting Jenner & Block client CRST Van Expedited Inc. a total attorneys’ fee award of $4,560,285.11 as the prevailing party against the Equal Employment Opportunity Commission, thus bringing to a close all district court proceedings in an alleged Title VII sexual harassment case originally filed by the EEOC against CRST in 2007.
In a series of previous rulings, Chief Judge Linda R. Reade had granted summary judgment dismissing all EEOC claims against CRST. In an April 30, 2009 ruling granting the Firm’s motion for summary judgment on EEOC’s claim that CRST management tolerated a “pattern or practice” of sexual harassment of female drivers, the Court ruled that EEOC “presented insufficient evidence to show that CRST has engaged in a pattern or practice of tolerating sexual harassment of its female drivers” and that a “reasonable jury could not find that it is CRST’s ‘standard operating procedure’ to tolerate sexual harassment.”
“The EEOC’s criticisms of CRST’s anti-sexual harassment policy are not well-taken,” the Court wrote and noted that the EEOC did not cite “a single case, statute or other legal authority” in its argument against the quality of CRST’s policies. “To show a pattern or practice of unlawful employment practices, the EEOC must do more than quibble with alleged deficiencies in CRST’s anti-sexual harassment policy and practices. It must cite legal authority,” the Court said.
In her February 9, 2010 order and opinion, Chief Judge Reade held that an award of substantial fees to CRST as the prevailing party was warranted because EEOC, among other things, acted unreasonably by suing CRST without first conducting the proper investigation required by law. “The EEOC’s failure to investigate and attempt to conciliate the individual [female driver] claims constituted an unreasonable failure to satisfy Title VII’s prerequisites to suit,” the Court wrote.
In support of a large fee award, the Court highlighted that “CRST’s counsel successfully obtained dismissal of the entire case. The case involved hundreds of allegedly aggrieved individuals and potentially massive liability to CRST. Jenner’s attorneys have significant experience and outstanding reputations in large, high stakes litigation.”
Jenner & Block’s team was led by Partners John H. Mathias, Jr., Robert T. Markowski, Carla J. Rozycki, Sally K. Sears Coder, James T. Malysiak, Sarah Hardgrove-Koleno; Of Counsel Richard P. Campbell and Emma J. Sullivan; Associates Spiridoula Mavrothalasitis, J. Andrew Hirth, Anne C. Fitzpatrick, Benjamin J. Wimmer, Sapna G. Lalmalani, Anne M. (Gardner) Alexander, Justin A. Maleson, Ashley M. Schumacher, and Michele L. Slachetka; and Paralegal Cheryl J. Kras.
Jenner & Block received significant and very able support as local counsel from Simmons Perrine Moyer Bergman PLC in Cedar Rapids, Iowa, particularly from employment law litigation Partners Kevin Visser and Thomas Wolle.
Practice Groups:
Litigation Department
1/27/2010
BTI Recognizes Richard Ziegler as Client Service “All Star”
The BTI Consulting Group, the industry leader in evaluating client satisfaction for professional services, today recognized Jenner & Block New York Managing Partner Richard F. Ziegler as part of its “all star team” of attorneys. According to BTI, Mr. Ziegler and fellow all-stars show an impressive ability to “take a position, proffer creative solutions and outline prospective scenarios for moving ahead,” and “were the first to define new tactics to reduce costs, revisit staffing and billing strategies at their firms.”
To determine this year’s “BTI Client Service All Stars,” the company interviewed 240 corporate counsel from large and Fortune 1000 companies to probe at all aspects of client relationships. According to BTI, Mr. Ziegler is part of an exclusive group of 164 attorneys worldwide who were singled out by name as part of BTI’s survey.
Mr. Ziegler is Managing Partner of the Firm's New York office, Co-Chair of the International Arbitration Practice and former Co-Chair of the Complex Commercial Litigation Practice. Since joining Jenner & Block two years ago, he has handled numerous major commercial disputes, led four international arbitrations and represented clients with multi-billion dollar claims against financial institutions arising from the credit crisis. In the governance and compliance arenas, Mr. Ziegler has advised boards of directors on compliance and stockholder matters and conducted internal investigations. Prior to joining the Firm, Mr. Ziegler served as Senior Vice President, Legal Affairs and General Counsel at the 3M Company.
Drawing on his experience as in-house and external counsel Mr. Ziegler is a frequent author and speaker on compliance and governance matters. He has published on the role of the board of directors in corporate compliance programs, and wrote the chapter on FCPA compliance programs in a forthcoming treatise. He is a co-chair of the 2010 PLI Corporate Compliance and Ethics Institute in New York.
Before joining 3M, Mr. Ziegler had been Chairman of the Committee on Professional Ethics of the New York State Bar Association. He has taught a seminar on ethics and complex litigation at Columbia Law School and has been a member of the faculty of the trial advocacy program at Cardozo Law School. Mr. Ziegler earned his law degree magna cum laude from Harvard Law School, where he served as an Editor of the Harvard Law Review. He received his B.A. from Yale College summa cum laude.
Practice Groups:
Complex Commercial Litigation
Litigation Department
International Arbitration
1/20/2010
Victory for Jenner & Block Asylum Client Before U.S. Supreme Court
The U.S. Supreme Court today ruled 9-0 in favor of Jenner & Block client Argon Kucana in Kucana v. Holder, a case involving the jurisdiction of federal courts to review motions to reopen immigration cases. The case was argued November 10 by co-counsel Rick Schoenfeld, with Jenner & Block Associate Lindsay C. Harrison assisting at counsel’s table.
According to Harrison, the Supreme Court’s decision will allow immigrants the ability to rely on the federal court system to contest deportation orders. The decision will affect thousands of immigrants who rely on judicial review to reverse erroneous decisions by the immigration courts.
At issue in the case was the asylum proceedings of Mr. Kucana, a native of Albania who applied for political asylum in 1997 on the basis of persecution on account of his political involvement. Mr. Kucana missed his asylum hearing and in turn, in 2002 the BIA denied a motion to reopen. In 2008, Mr. Kucana filed a second motion claiming conditions in Albania had changed and should warrant reconsideration of his application for asylum. The BIA denied his motion to reopen and Mr. Kucana sought review in the Seventh Circuit, which concluded that because the decision on the motion to reopen was a discretionary one it was unreviewable pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
Overturning the Seventh Circuit’s decision, the Court stressed as “a paramount factor in the decision we render today” that “[b]y defining the various jurisdictional bars by reference to other provisions in the INA itself, Congress ensured that it, and only it, would limit the federal courts’ jurisdiction. To read §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the Board by regulation, rather than on the Attorney General by statute, would ignore that congressional design. If the Seventh Circuit’s construction of §1252(a)(2)(B)(ii) were to prevail, the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions ‘discretionary,’” the Court said. “Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.”
"People may face persecution, torture, or even death if they are deported to their native countries," said Chuck Roth, director of litigation, National Immigrant Justice Center. "Allowing people access to full judicial review under these circumstances not only upholds basic American standards of due process, but also reaffirms our country’s commitment to defending human rights."
The Jenner & Block team in this matter was led by Partner Elaine J. Goldenberg, along with Associates Lindsay C. Harrison, Matthew Hersh, Eric R. Haren, Benjamin J. Wimmer, Julia K. Martinez, Rochelle P. Lundy, and Krishanti Vignarajah. Senior Paralegal Cheryl L. Olson and Docketing Assistant Zachary J. Egan also provided able assistance.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here for the Court’s decision
1/19/2010
Jenner & Block Secures a Preliminary Injunction for Entertainment Software Association
Jenner & Block secured a preliminary injunction against the Chicago Transit Authority in the U.S. District Court for the Northern District of Illinois on behalf of the Firm’s client, the Entertainment Software Association, in a case involving the CTA’s ban of advertisements for mature-content video games on its trains, buses and facilities. In January 2009, the ESA filed a complaint alleging that the CTA violated the ESA’s First Amendment rights after CTA implemented an ordinance prohibiting video game advertisements rated Mature (M) or Adults Only (AO).
According to the order, “the CTA singled out for prohibition all advertising references to a solitary class of product -- mature and adult video games, which (unlike alcohol and tobacco) are themselves forms of protected speech and which are legal for people of all ages to purchase.” The court held that CTA’s advertising guidelines restrict speech in a public forum that is otherwise open to all speakers without a compelling interest to do so and discriminates against certain speakers on the basis of viewpoint. Accordingly, the court found that, “while the CTA would likely be entitled to enforce such a ban were it serving solely as the proprietor of its own non-public forum, it cannot do so in a forum that this Circuit has explicitly found to be a designated public forum for free expression.”
“This ruling is a win for Chicago’s citizens, the video game industry and above all, the First Amendment,” said Michael D. Gallagher, president and CEO of the ESA. “It is our hope that the CTA sees the futility of pursing this case further. To do so will waste taxpayer money and government resources.”
The Jenner & Block team representing ESA is Partner Paul M. Smith, Katherine A. Fallow, Duane Pozza, and Associate Rochelle P. Lundy.
Practice Groups:
Creative Content
Litigation Department
Media and First Amendment
Related Document(s):
Please click here to view the court's ruling
1/14/2010
Firm Secures Victory For Motion Picture Industry in Copyright Infringement Case
Jenner & Block recently secured a victory in the United States District Court of the Central District of California on behalf of all major motion picture studios in the United States in Columbia Pictures et al. v. Isohunt, a copyright infringement case against the BitTorrent website Isohunt and its owner Gary Fung. In the first ever U.S. decision to address the merits of copyright claims against a BitTorrent operator, the Court held that Isohunt and Fung were liable for inducing copyright infringement and rejected the defendant’s attempts to compare themselves to conventional search engines like Google.
In granting the motion for summary judgment on liability filed by the Firm, the Court noted that Fung “personally engaged in a broad campaign of encouraging copyright infringement.” and that, within the Digital Millennium Copyright Act “there are no safe harbors for such conduct.” The Court also noted that, “This case contains the same general pattern presented in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., A&M Records LLC v. Napster, Inc. and Arista Records LLC v. Usenet.com” all cases in which Jenner & Block secured victories on behalf of recording and/or motion picture studios. The Court concluded that, “Defendants’ technology is nothing more than old wine in a new bottle.”
The Jenner & Block team representing the motion picture industry in this matter was comprised of Partners Steven B. Fabrizio, Gianni P. Servodidio, Katherine A. Fallow, Duane Pozza and Associate Michelle A. Groman.
Practice Groups:
Creative Content
Litigation Department
Related Document(s):
Please click here to view the Court’s ruling
12/22/2009
Schaner Appointed Secretary of the International Bar Association Arbitration Committee
Jenner & Block Partner Lawrence S. Schaner was recently appointed Secretary of the International Bar Association (IBA) Arbitration Committee.
The IBA Arbitration Committee, which has more than 2,300 members from over 90 countries, focuses on laws, practice and procedures relating to the arbitration of transnational disputes. Through its publications and conferences, the Committee seeks to share information about international arbitration and promote its use and improve its effectiveness.
Mr. Schaner, Co-Chair of the Firm's International Arbitration Practice, has over 20 years of experience focusing on the resolution of complex business disputes, and has significant experience representing clients in arbitrations, matters relating to arbitration, mediation and international litigation. Mr. Schaner speaks and writes frequently on a variety of topics relating to international arbitration and international litigation, and is active with many of the world's leading arbitration institutions and organizations. He is a Member of the International Chamber of Commerce Commission on Arbitration; a Fellow of the Chartered Institute of Arbitrators; and serves as Secretary of the North American Users' Council of the London Court of International Arbitration. From 2007-2009, Mr. Schaner served as the Publications and Newsletter Editor of the IBA Arbitration Committee.
His experience in international and domestic arbitration is recognized by a number of legal directories including Chambers USA, Who's Who Legal: Illinois, the Best Lawyers in America, the Legal Media Group Guide to the World's Leading Commercial Arbitration Experts, and The International Who's Who of Commercial Arbitration. He is recognized by Illinois Super Lawyers in its business litigation, alternative dispute resolution and international categories.
Practice Groups:
International Arbitration
Litigation Department
12/21/2009
Jenner & Block Elects 10 Associates to Partnership
On Monday, December 21, 2009, Jenner & Block elected ten associates to the partnership. They are Christine L. Childers, Frank J. Eichenlaub, Brian J. Fischer, Jason J. Green, Matthew S. Hellman, John J. Molenda, Duane Pozza, Sandi J. Toll, Scott B. Wilkens, and Bradley M. Yusim.
“Our 2010 class of partners are a talented group of attorneys who embody the Firm’s values of exceptional client service and commitment to the community,” said Managing Partner Susan C. Levy. “We’re thrilled to welcome them to the partnership.”
Christine L. Childers
Christine L. Childers is a Partner in the Bankruptcy, Workout and Corporate Reorganization, Commercial Law and Uniform Commercial Code and Bankruptcy Litigation Practices. Ms. Childers obtained her J.D. magna cum laude from Valparaiso University School of Law in 2002, where she served as Associate Editor for the Valparaiso University Law Review. She received her B.S. cum laude from the University of Nevada, Las Vegas in 1998.
Frank J. Eichenlaub
Frank J. Eichenlaub is a Partner in the Real Estate and Business and Financial Transactions Practices, with specialties in Real Estate Securities, Real Estate Finance, Corporate Real Estate Services, and Real Estate Development and Construction. Mr. Eichenlaub obtained his J.D. with Honors from the University of North Carolina School of Law in 2002, where he served as Symposium Editor for the North Carolina Law Review. He received his B.A. with High Distinction from Indiana University in 1993.
Brian J. Fischer
Brian J. Fischer is a Partner in the Litigation Department and the Complex Commercial Litigation Practice. Mr. Fischer obtained his J.D. magna cum laude from Harvard Law School in 2002, where he served as Symposium Director and Editor for the Harvard Journal on Legislation. He served as a law clerk for the Honorable Naomi Reice Buchwald of the United States District Court for the Southern District of New York in 2003-2004. He received his B.A. summa cum laude from Binghamton University in 1999.
Jason J. Green
Jason J. Green is a Partner in the Litigation Department and the Complex Commercial Litigation Practice. Mr. Green obtained his J.D. cum laude from The John Marshall Law School in 2002, where he served as Co-Founder and Executive Lead Articles Editor for The John Marshall Review of Intellectual Property Law and was a member of The John Marshall Law Review, where he won the Scrivener Award for Best Student-Authored Law Review Article. He received his B.S. in Civil Engineering from the University of Illinois at Urbana-Champaign in 1999.
Matthew S. Hellman
Matthew S. Hellman is a Partner in the Firm's Litigation Department and the Appellate and Supreme Court Practice. Mr. Hellman obtained his J.D. magna cum laude from Harvard Law School in 2002, where he served as President of the Harvard Law Review. He served as a law clerk for the Honorable Michael Boudin of the United States Court of Appeals for the First Circuit from 2002-2003. He then clerked for the Honorable David H. Souter of the United States Supreme Court from 2004-2005. He received his B.A. with Highest Honors and Phi Beta Kappa from Swarthmore College in 1998.
John J. Molenda
John J. Molenda is a Partner in the Firm’s Litigation Department and the Intellectual Property; Appellate and Supreme Court; and Pharmaceutical, Biotech and Medical Devices Practices. Dr. Molenda obtained his J.D. from the University of Michigan Law School in 1998 and served as a law clerk for the Honorable Alan D. Lourie of the United States Court of Appeals for the Federal Circuit from 1998-2002. He received his M.S. and Ph.D. degrees in Chemistry from Vanderbilt University in 1994, focusing on pharmaceutical design and evaluation. Dr. Molenda received his B.S. degrees in Chemistry and History from Vanderbilt in 1991, graduating cum laude and with Honors in the College of Arts and Science.
Duane C. Pozza
Duane C. Pozza is a Partner in the Firm's Litigation Department and the Creative Content Practice. Mr. Pozza obtained his J.D. with Distinction from Stanford Law School in 2002, where he served as Submissions Editor for the Stanford Technology Law Review. He served as a law clerk for the Honorable Roslyn O. Silver of the United States District Court for District of Arizona from 2002-2003. He received his B.A. with Honors and Phi Beta Kappa from University of Texas at Austin in 1998, where he also was Dedman Distinguished Scholar.
Sandi J. Toll
Sandi J. Toll is a Partner in the Litigation Department and the Complex Commercial Litigation and Health Care Litigation Practices. Ms. Toll obtained her J.D. magna cum laude from Loyola University Chicago School of Law in 2002, where she served as Articles Editor for the Loyola University Chicago Law Journal. She received her B.S. with Distinction from Cornell University in 1997.
Scott B. Wilkens
Scott B. Wilkens is a Partner in the Litigation Department and Complex Commercial Litigation Practice. Mr. Wilkens obtained his J.D. cum laude from Harvard Law School in 2002, where he served as Editor for the Harvard Law Review. He served as a law clerk for the Honorable Raymond C. Fisher of the United States Court of Appeals of the Ninth Circuit in 2002-2003. He received his M.S. in International Relations from the London School of Economics, where he studied as a Fulbright Scholar. He received his B.A. with Highest Distinction and Honors from the University of North Carolina in 1993, where he was also a Morehead Scholar.
Bradley M. Yusim
Bradley M. Yusim is a Partner in the Litigation Department and the Complex Commercial Litigation Practice. Mr. Yusim received his J.D. magna cum laude from the University of Illinois College of Law in 2002, where he served as Editor for the Journal of Law, Technology and Policy. He received his B.S. in Electrical Engineering from the University of Texas at Austin in 1998.
Practice Groups:
Appellate and Supreme Court Practice
Bankruptcy Litigation
Bankruptcy, Workout and Corporate Reorganization
Commercial Law and Uniform Commercial Code
Complex Commercial Litigation
Corporate Real Estate Services
Creative Content
Health Care Litigation
Intellectual Property
Litigation Department
Pharmaceutical, Biotech and Medical Devices
Real Estate
Real Estate Development and Construction
Real Estate Finance
Real Estate Securities Practice
12/16/2009
Suskin Comments on the Distribution of Reserve Primary Funds
Partner Howard S. Suskin was quoted in a December 15, 2009 article in Ignites, a Financial Times publication. The article discusses a federal court order issued last week, providing for the distribution of $3.4 billion of the Reserve Primary Fund's remaining assets to investors who sued for return of their money market holdings. Mr. Suskin provided commentary on how claims administration in class actions and distribution proceedings typically operates.
Practice Groups:
Class Action
Litigation Department
Securities Litigation
12/7/2009
Olin Secures $40 Million Second Circuit Win in 25 Year Insurance Coverage Dispute
In a significant victory for Jenner & Block client Olin Corporation, a federal appeals court on September 18 affirmed an approximately $40 million judgment for Olin in an insurance coverage dispute over pollution remediation costs at several sites in New York, validating Olin’s position with respect to the nature and timing of the property damage, and several other legal issues.
The court’s ruling marks the first significant appellate opinion that affirms Olin’s claims relating to excess insurance coverage in the matter, which has spanned 25 years.
At issue in this portion of the case was environmental clean up costs related to a former Olin pesticide plant in Niagara Falls, New York that was destroyed in an explosion in 1956. Olin remediated the area of the former plant and at related nearby sites in the 1980s, and submitted claims to its insurers in accordance with excess general liability insurance in policies sold to Olin by the insurer from 1950 to 1970.
Olin went to court to force its insurer to honor the excess policy obligations, and after a first trial in 2005, a jury issued a verdict in favor of Olin. On appeal to the Second Circuit, a new trial was ordered by the court. At a 2007 re-trial, Olin produced numerous experts that testified that the actual contamination of the sites occurred in the 1950s and 1960, the period of time in which the insurer was providing excess coverage to Olin. The insurer contended that the contamination had occurred over a longer period of time. The District Court entered judgment for Olin in September 2008. The insurer appealed to the Second Circuit, alleging among other things that the district court erred in allowing the 2007 retrial to occur, that it improperly instructed the jury, that the jury misunderstood the polices at issue and that Olin allegedly provided late notice to the insurer.
Closely tracking the Firm’s arguments, the Second Circuit rejected each of insurer’s attacks on the judgment. The appeals court held that the district court proceeded properly when it held a new trial. The court also rejected the insurer’s argument that the jury was not properly instructed on the definition of “property damage,” holding that the instructions adequately communicated the applicable legal rule to the jury.
The court also rejected the assertion that jury had not been given adequate instruction on the task of allocating property damage. Following the Firm’s arguments, the court wrote, “reasonable estimation, it seems to us, allocates property damage ‘as nearly as possible’ to the actual amount of damage incurred in a given year – especially when much of the damage occurred a half century ago.”
The Second Circuit also ruled that the multi-year policies at issue required only one deductible, and that as a matter of law the insurer waived its defense to coverage on the grounds of Olin's alleged late notice.
The Second Circuit also rejected Olin's cross-appeal, concluding that the district court did not err in failing to require the insurer to reimburse Olin for defense costs incurred prior to Olin's settlement with its primary insurer, because those costs were covered by other valid and collectible insurance.
The Jenner & Block team was led by Craig C. Martin, Co-Chair of the Firm’s Litigation Department, who argued the case before the Second Circuit. The Firm’s team also included Partners Peter J. Brennan, Elaine J. Goldenberg and Lorelie S. Masters and Associates Jessica Ring Amunson, Brian S. Scarbrough and Michaelene R. Martin. Former Partner Ian Heath Gershengorn also made significant contributions. Also representing Olin was Dickstein Shapiro LLP and Hush & Eppenberger. Opposing counsel was Mendes & Mount LLP, and John McAndrews argued.
Practice Groups:
Insurance Litigation and Counseling
Litigation Department
Appellate and Supreme Court Practice
12/3/2009
Vail Appointed to the Illinois Supreme Court Committee on Jury Instructions in Criminal Cases
On November 10, 2009, Jenner & Block Attorney Andrew W. Vail was appointed by Thomas R. Fitzgerald, Chief Justice of the Illinois Supreme Court, to serve for a one-year term on the Illinois Supreme Court Committee on Jury Instructions in Criminal Cases. The Committee studies and recommends new pattern jury instructions for criminal cases or modifications to existing instructions.
Mr. Vail appointment to the Committee continues a tradition of Jenner & Block attorneys serving as Committee members, as Name Partner Albert E. Jenner Jr., Chairman Emeritus Jerold S. Solovy, and Partners Thomas P. Sullivan and Jeffrey D. Colman have previously served on the Illinois Supreme Court Committee on Jury Instructions in Criminal Cases. Robert T. Markowski served as counsel to the committee and Of Counsel Benjamin K. Miller also served as the Court's liaison to the Committee.
Mr. Vail is a member of the Firm’s Litigation Department and Pro Bono Committee. He has undertaken a wide range of pro bono legal work focusing on Illinois and federal criminal law reform and cases at the trial and post-conviction stages. Mr. Vail was awarded the Chicago Bar Association and Chicago Bar Foundation’s 2009 Exceptional Young Lawyer Award. Jenner & Block presented him the 2008 Albert E. Jenner, Jr. Pro Bono Award in recognition of his contributions to the profession, community, and those in need.
Practice Groups:
Litigation Department
11/30/2009
Suskin Comments on Pending Supreme Court Case Against Morgan Stanely Funds - Ignites
Partner Howard S. Suskin provided commentary for an article in the November 23, 2009 issue of Ignites, a publication of Financial Times. The article analyzes a case currently pending before the U.S. Court of Appeals for the Second Circuit involving investors' claims that two Morgan Stanley mutual funds failed to disclose risks related to conflicts of interest between its investment banking and research departments.
Practice Groups:
Class Action
Litigation Department
Securities Litigation
11/20/2009
Feldman Elected Chair of the Board of Directors for The Family Institute at Northwestern University
Jenner & Block Partner James H. Feldman has been elected the Chair of the Board of Directors for The Family Institute at Northwestern University.
The Family Institute is a leading center for marital and family therapy, community outreach, education and research, giving clients access to some of the most experienced psychotherapists and experts in the field. Headquartered in Evanston, The Family Institute offers close to 50,000 therapy sessions a year.
Mr. Feldman, Chair of Jenner & Block’s Family Law Practice, has been a member of the The Family Institute Board of Directors at Northwestern University since 2003, previously serving as Vice Chair as well as Nominating Chair. According to a Family Institute statement Mr. Feldman “has been instrumental in building the Board over the past three years with a focus on increasing the Board’s effectiveness and visibility and has helped bring in eight new members.”
Mr. Feldman’s practice encompasses the full range of family law service including litigation, collaborative law, mediation and counseling. Mr. Feldman has been repeatedly recognized as being one of the leading family law practitioners in the field. He has been listed in all editions of The Best Lawyers in America since its first publication in 1983 and has been consistently recognized by the Leading Lawyers Network and by Super Lawyers as a “Top Illinois Family Law Attorney.” The August 2008 issue of Leading Lawyers Network Magazine listed him among the Top 10 of Leading Family Lawyers in Illinois. Mr. Feldman is AV Peer Review Rated, Martindale-Hubbell’s highest peer recognition for ethical standards and legal ability.
Please click here for more information.
Practice Groups:
Family Law
Litigation Department
11/19/2009
Spacapan Edits, Jenner & Block Attorneys Author Unique Product Liability Treatise
The Practising Law Institute has just published a first-of-its-kind book on product liability litigation trends and best practices that was edited by Jenner & Block Partner Lise T. Spacapan and features substantive contributions from numerous Jenner & Block attorneys.
Titled Product Liability Litigation: Current Law, Strategies and Best Practices, the new book offers “today’s most comprehensive guide to the legal, technical, and strategic issues involved in one of today’s most explosive areas of litigation,” according to the Practising Law Institute, the nation’s leading provider of continuing legal education.
Ms. Spacapan, who is Co-Chair of the Firm’s Product Liability & Mass Tort Defense Practice, explains that “Product Liability law involves a fascinating mix of human drama, legal theory, and scientific complexity. Legal strategies for products cases are constantly changing as science advances and courts consider new legal frontiers. This area broadly impacts American business.”
Ms. Spacapan added: “Working with a remarkable roster of leading practitioners from our firm and many others, we structured this book to provide lawyers with a one-volume, state-of-the-art guide to this ever evolving area of the law.”
The 43-chapter book is arranged into three major sections: a section discussing trends in product claims and defenses, a second section relating to strategies for managing and resolving product litigation and a third section that focuses on specific product liability litigation issues and tactics.
Among the many topics covered, the treatise helps attorneys navigate product recalls, class actions and consumer fraud cases. It addresses strategic considerations such as the use of early case evaluation and discovery plans to cut litigation costs; and the use of computer technologies to conduct background investigations, uncover hard-to-find evidence, and make complex scientific evidence clearer to jurors. The publication features case studies, checklists and sample documents throughout.
In addition to Ms. Spacapan serving as an editor, many Jenner & Block attorneys wrote the following chapters in the new publication:
Please click here for more information, including the book’s full Table of Contents.
Practice Groups:
Litigation Department
Products Liability and Mass Tort Defense
11/17/2009
Arguments in Kucana v. Holder Heard before the Supreme Court
Jenner & Block represented the petitioner last week in the U.S. Supreme Court in Kucana v. Holder, involving the jurisdiction of federal courts to review appeals involving motions to reopen immigration cases. The case was argued November 10 by co-counsel Rick Schoenfield, with Jenner & Block Associate Lindsay C. Harrison sitting at counsel table.
At issue in the case is whether the federal courts of appeals have jurisdiction to review decisions of the immigration courts regarding motions to reopen immigration proceedings. Motions to reopen have historically been the only means by which an asylum-seeker could present evidence that was unavailable at the time of his or her original asylum hearing. They have therefore played a critical role in facilitating asylum for immigrants who would face persecution upon return to their country of origin.
The case before the Supreme Court is that of Agron Kucana, a native of Albania whose application for political asylum on the basis of persecution on account of his political involvement was denied. In 2008, Mr. Kucana filed a motion to reopen claiming that conditions in Albania had changed and that he would face a serious risk of political persecution if he were forced to return there. The BIA denied the motion, and Mr. Kucana sought review in the Seventh Circuit, which concluded that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped the federal courts of jurisdiction over the case.
According to Mr. Kucana's opening brief, the statute at issue "does not strip the court of appeals of jurisdiction except in a circumscribed category of immigration cases: those in which the petitioner seeks judicial review of decisions or actions” the authority for which is specified to be discretionary in a particular subchapter of the immigration statutes. Because the “denial of an alien’s motion to reopen is not such a decision or action,” the courts of appeals have jurisdiction to review it.
The Solicitor General, who represents the United States in the Supreme Court, declined to defend the Seventh Circuit decision, agreeing with the petitioner that the Seventh Circuit’s decision should be reversed.
The case will affect thousands of immigrants who rely on judicial review to reverse erroneous decisions by the immigration courts.
The Firm's team on this case was supervised by Partner Elaine J. Goldenberg and included Associates Lindsay C. Harrison, Matthew Hersh, Eric R. Haren, Benjamin J. Wimmer, Julia K. Martinez, Rochelle P. Lundy, and Krishanti Vignarajah. Senior Paralegal Cheryl L. Olson and Docketing Assistant Zachary J. Egan also provided able assistance.
Please click here to view the Firm's Petitioner Brief.
Please click here to view the Firm's Petitioner Reply Brief.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
11/11/2009
Martin, Bradford and Heinz Address Pressing Issues and Best Practices at The American Lawyer’s Litigation Summit
Jenner & Block Partner Craig C. Martin and Mr. Roderick A. Palmore, Executive Vice President, General Counsel of General Mills served as co-chairs of The American Lawyer, The National Law Journal and Corporate Counsel Magazine’s premiere Litigation Summit, held October 19-20 2009 at the Harvard Club in New York City.
The Litigation Summit brought together a select group of the nation’s most well-regarded practitioners for a conference focused on the strategies and best practices in approaching litigation as a business issue. The conference faculty included Jenner & Block Partners David J. Bradford and William D. Heinz, as well as senior in-house counsel from Baxter International Inc., Bristol-Myers Squibb Company, Exelon Corporation, Harrah’s Entertainment, Huron Consulting Group, Jacobs Engineering, Microsoft Corporation, Olin Corporation, Pfizer Inc., Sharp Electronics Corporation and many more leading companies.
Mr. Martin, a Co-Chair of the Firm’s Litigation Department, served as host for the two day Litigation Summit and moderated a session titled “Strategies for Communicating about Litigation with the C-Suite and Beyond.” The session addressed the role of outside counsel in communications with a corporation’s C-suite, board of directors, auditors, and investor relations professionals. Mr. Martin joined Susan R. Lichtenstein, Former Corporate Vice President and General Counsel, Baxter International Inc.; Sandra Leung, SVP General Counsel & Corporate Secretary, Bristol-Myers Squibb Company; Michael D. Fricklas, Executive Vice President, General Counsel & Secretary, Viacom Inc.; and Joan Fencik, Vice President & Deputy General Counsel, Exelon Corporation in a discussion of lessons and best practices.
Mr. Bradford, also a Co-Chair of the Firm’s Litigation Department, spoke at a session titled “Taking the Gloves Off: The Business Case for the Plaintiff.” At the session, Mr. Bradford and Bradley A. Siciliano Vice President, General Counsel & Corporate Secretary, Sharp Electronics Corporation, discussed the ways in which plaintiff-side litigation can provide bottom-line benefits to corporations, and the factors a company should consider prior to initiating a suit.
Mr. Heinz, Co-Chair of Jenner & Block’s Professional Responsibility Practice and General Counsel to the Firm, joined James Mitchell, Managing Director, Huron Consulting Group, to discuss the “Ethics of E-Discovery.” Among other things, Messrs. Heinz and Mitchell discussed why e-discovery has become one of the newest and increasingly costly areas of attorney ethical violations, and strategies for preventing discovery sanctions at the e-discovery stage.
Practice Groups:
Litigation Department
11/4/2009
Following Supreme Court Win, Jenner & Block Secures Appellate Victory for Pro Bono Asylum Client
In another victory for Jenner & Block pro bono asylum client Jean Marc Nken, a federal appeals court on October 31 vacated a Board of Immigration Appeals order that denied Mr. Nken the opportunity to reopen his removal proceedings. In a published decision, the court remanded the case back to the BIA for further proceedings.
The U.S. Court of Appeals for the Fourth Circuit ruled that the BIA failed to sufficiently address new evidence presented by Mr. Nken about the likelihood of further persecution if he returned to his native Cameroon, from which Mr. Nken fled after being detained, interrogated, and beaten for his advocacy for free elections.
The appellate victory comes on the heels of a landmark win for Mr. Nken before the U.S. Supreme Court earlier this year. Both the U.S. Supreme Court and Fourth Circuit cases were argued by Jenner & Block Associate Lindsay C. Harrison, who is representing Mr. Nken on a pro bono basis. Ms. Harrison’s U.S. Supreme Court case was the first argument for Ms. Harrison before the High Court or in any court, and this most recent win was the second oral argument of her career.
“The court’s ruling moves our client one step closer to securing his dream of permanent refuge inside the United States, where his wife and child live as U.S. citizens,” said Ms. Harrison. “We look forward to presenting Mr. Nken’s case to the BIA.”
At issue before the Fourth Circuit was whether the BIA had properly considered and addressed new evidence supplied by Mr. Nken when he petitioned to reopen his order of removal based on “changed country conditions.” Mr. Nken in May 2008 had supplied the agency with a handwritten letter from his brother in Cameroon describing the dangers Mr. Nken would face if he returned, several photographs of Mr. Nken at political demonstrations in the country, and news articles detailing political unrest and persecution in Cameroon.
In its order declining to reopen Mr. Nken’s removal proceedings, the BIA order referenced the new evidence, but did not offer an explanation as to why the letter did not support a finding of changed conditions in Cameroon.
The Fourth Circuit ruled that the agency’s lack of explanation regarding the impact of the letter from Mr. Nken’s brother requires the case to be remanded for further review. “It is not apparent from the BIA order that it considered the crux of Nken’s argument,” the court wrote. Following precedent set in the 1943 U.S. Supreme Court case SEC v. Chenery, the Court also held that the Attorney General could not defend the BIA's decision on a basis not stated therein. The precedent will assist other asylum-seekers appealing from orders of the BIA that do not provide a reasoned explanation for denying relief.
The earlier U.S. Supreme Court victory for Mr. Nken clarified an important aspect of immigration law that affects thousands of individuals seeking asylum in the U.S. after fleeing persecution abroad. When Mr. Nken initially sought review of the BIA's decision in the Fourth Circuit, he also sought a temporary stay so that he could remain in the U.S. for the time when his appeal was pending. The Fourth Circuit denied that motion, meaning that he could be deported back to Cameroon notwithstanding the grave danger he faces there.
Mr. Nken, represented by Jenner & Block attorneys, filed an emergency motion in the U.S. Supreme Court, seeking a stay and contending that the standard that the court of appeals had used in denying the stay was incorrect and unjustified by federal immigration law. The Supreme Court granted the application for the stay and scheduled argument on Mr. Nken’s case for January 2009.
The U.S. Supreme Court issued its ruling in Nken v. Holder in April 2009 and remanded the case back to the Fourth Circuit. The court ruled 7-2 that asylum applicants in the U.S. who are appealing an order of removal by the BIA in federal court should not be deported while their appeal is pending if they have a likelihood of success in their appeal and would suffer harm if deported.
The Jenner & Block team in Mr. Nken’s case also includes Partner Jared O. Freedman, and Associates Julia K. Martinez and Sharmila Sohoni.
Please click here to view the Fourth Circuit’s ruling.
Practice Groups:
Litigation Department
Appellate and Supreme Court Practice
11/2/2009
Scruggs Discusses Pro Bono Lawsuit Challenging Racial Inequity in Illinois’ Educational Funding System
Jenner & Block Partner Lisa T. Scruggs addressed the role of race in funding and achievement gaps in Illinois school districts at a United We Learn Forum held on Thursday, October 21, 2009 at Trinity United Methodist Church in Wilmette, Illinois.
The forum focused on the lawsuit Chicago Urban League v. State of Illinois, a groundbreaking pro bono challenge to racial inequity in the State of Illinois’ educational funding system that recently became the first suit of its kind in Illinois to survive a motion to dismiss. Ms. Scruggs is leading a team of Jenner & Block attorneys representing the Chicago Urban League in the case on a pro bono basis.
At the forum, Ms. Scruggs and David Thigpen of the Chicago Urban League discussed the background of the suit, which challenges the state’s heavy reliance on property taxes to fund public education. The speakers noted that because African-American and Latino students tend to live in areas of low property wealth, the system effectively discriminates against minority students, in violation of the Illinois Civil Rights Act of 2003.
Among other things, Ms. Scruggs stressed that the goal of the suit is not to reduce resources for the top schools, but to "raise all boats." She encouraged the attendees to write opinion pieces for newspapers and attend court hearings on the case.
According to an article published by Medill Reports, United We Learn formed after the Reverend James Meeks brought busloads of Chicago Public Schools students to Wilmette to enroll them in New Trier High School, one of the wealthiest districts in the state, to highlight the spending gap. The residents said they did not want the issue to fade from attention and have been meeting for more than a year with the goal of securing a higher-quality public school education for all children.
The forum was co-sponsored by the Interfaith Housing Center of the Northern Suburbs, the League of Women Voters of Wilmette, the Legislative Task Force of the School District 65/202 PTA Council, and the Rabbi Paul F. Cohen of Temple Jeremiah in Northfield.
Ms. Scruggs is a member of the Complex Commercial Litigation, Real Estate and Construction Litigation, and Health Care Litigation Practices. In addition to her litigation practice, she regularly advises public sector clients, including school districts and individual schools, on how to achieve their policy goals. From 2004-06, Scruggs served as senior policy advisor to the Chief Executive Officer of the Chicago Public Schools. In that position, she developed a number of major policies, including the Policy to Establish Renaissance Schools, and worked on a variety of legal and policy issues related to the district’s implementation of the No Child Left Behind Act, its remedial program for minority and women business enterprises, its commercial activity policy, and system-wide safety and security initiatives. Ms. Scruggs was recognized in the Education Law category in the 2009 and 2010 editions of Best Lawyers, and was recently named to the Law Bulletin Publishing Company’s prestigious list of “40 Illinois Attorneys Under Forty to Watch."
Practice Groups:
Litigation Department
10/29/2009
Jenner & Block Files Amicus Brief for ADL in Sixth Circuit Case Involving “Dual Loyalty” Stereotype
Jenner & Block recently filed an amicus brief on behalf of the Anti-Defamation League (ADL) urging the U.S. Court of Appeals for the Sixth Circuit to allow a Jewish civilian employee of the U.S. Army to sue the government for its "egregious discriminatory conduct" against him.
The case, Tenenbaum v. Ashcroft, involves the discriminatory investigation of U.S. Army engineer David Tenenbaum, who was falsely accused of being an Israeli spy by certain members of the U.S. Government due to his Jewish faith. According to the Firm’s brief, despite his “impeccable record and lifelong devotion to protecting the safety of U.S. troops,” Mr. Tenenbaum was subjected to an eight-year period of invasive investigations conducted by numerous government agencies, not one of which resulted in espionage charges or a criminal prosecution.
A comprehensive, 55-page report issued by the Department of Defense in 2008 concluded that Mr. Tenenbaum “was the subject of inappropriate treatment by Department of the Army and Defense Investigative Service officials …” and that, “[b]ut for Mr. Tenenbaum’s religion, the investigations would likely have taken a different course.”
Mr. Tenenbaum was initially denied the ability to sue for discrimination because the lower court accepted the government claim that “state secrets” prevented it from revealing key facts in this case. Based on the compelling evidence released in the Department of Defense report, Mr. Tenenbaum filed a subsequent lawsuit, which was again dismissed on res judicata and collateral estoppel grounds.
The Firm’s brief addresses how the “dual loyalty” stereotype — the charge that American Jews hold greater loyalty to Israel than to the United States — may have affected Mr. Tenenbaum’s security clearance and how it may have affected others seeking or hoping to maintain military or security clearances from the U.S. government. The brief urges the Sixth Circuit to reverse the trial court’s determination that his claim is barred, allowing Mr. Tenenbaum to have his day in court for the first time in 11 years.
The Anti-Defamation League, founded in 1913, is the world’s leading organization fighting anti-Semitism through programs and services that counteract hatred, prejudice and bigotry.
The amicus brief was authored, pro bono, by Jenner & Block Partner Eric L. Lohrenz and Associates Benjamin P. Wieck and Nicholas A. Kurk. Partners Eric A. Sacks and Debbie L. Berman also contributed to the case.
Please click here to view the Firm's amicus brief in Tenenbaum v. Ashcroft.
Practice Groups:
Litigation Department
Appellate and Supreme Court Practice
10/26/2009
Handzo Elected Fellow of American College of Trial Lawyers
Jenner & Block Partner David A. Handzo has become a Fellow of the American College of Trial Lawyers (ACTL), one of the premier legal associations in America.
Founded in 1950, the College is composed of the “best of the trial bar from the United States and Canada,” according to an ACTL statement. Fellowship in the College is extended solely by invitation and only after careful investigation, to those “experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality.”
Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship. Mr. Handzo was inducted as a Fellow at an induction ceremony attended by nearly 1,000 people during the recent 2009 ACTL Annual Meeting of the College in Boston, Massachusetts.
Over the course of his career, Mr. Handzo has handled a broad range of cases all over the country in state courts, federal district courts, bankruptcy courts, the Court of Federal Claims, the Court of International Trade, and before the United States Copyright Royalty Judges. His experience has had a particular emphasis on the representation of Fortune 500 companies in class actions, complex contract disputes, bankruptcy litigation and advertising disputes under the Lanham Act.
Among his most recent successes on behalf of clients, Mr. Handzo recently won the dismissal of a class action filed against clients Embarq, Inc. and CenturyTel, Inc. alleging violations of the federal Electronic Communications Privacy Act and California privacy statutes. He also recently successfully defended Marriott International in a putative multistate class action brought by individuals who bought timeshare properties from the company. In another matter, he served as lead trial counsel on behalf of SoundExchange, which represents the interests of the recording industry, in a 27 day trial before the Copyright Royalty Board regarding the royalty rates due to all recording artists and record companies nationwide for music played on satellite radio. In January 2008, the Board granted the artists and record companies a 300% increase in royalties -- a ruling worth well over $1 billion.
Mr. Handzo also maintains an active pro bono practice, and regularly represents indigent defendants in serious felony matters at trial and in other proceedings. After joining the Firm’s Chicago office as an associate in 1980, he left the Firm to serve for eight years as a staff attorney in the trial division of the Public Defender Service for the District of Columbia.
Mr. Handzo received his undergraduate degree magna cum laude from Princeton University in 1976, and his law degree magna cum laude and Order of the Coif from the University of Michigan in 1980.
Mr. Handzo is the 13th Jenner & Block partner to be elected a fellow of the American College of Trial Lawyers.
Practice Groups:
Litigation Department
10/23/2009
Scruggs Named to Law Bulletin’s 40 Under Forty Attorneys to Watch
Jenner & Block Partner Lisa T. Scruggs has been named to the Law Bulletin Publishing Company’s “40 Illinois Attorneys Under Forty to Watch" list for 2009.
This prestigious annual list, now in its tenth year, honors 40 young Illinois attorneys who have demonstrated “intelligence, passion, scores of successful verdicts, hard work for their clients, a desire to help the community and willingness to work hard at one of the country’s most important professions.” Ms. Scruggs was chosen from more than 1000 nominees.
In recognizing Ms. Scruggs, the Law Bulletin highlighted her prowess in civil and commercial litigation. It recognized, among other things, Ms. Scruggs’ 3-0 record in representing GE Healthcare on high-stakes commercial litigation matters, her successful defense of Sara Lee Corporation against several multimillion dollar putative class actions, and her key role on the Jenner & Block team that recently won two trials for Equity Lifestyle Properties in separate constitutional challenges involving mobile home rent control.
“As in-house counsel, you look for lawyers to represent your company who you know will succeed if success is to be found,” said Preston L. Pugh, former senior counsel for litigation at GE Healthcare, now of counsel at Pugh Jones Johnson & Quandt, P.C. “Lisa is precisely that kind of rare lawyer.”
“Because of Lisa’s exceptional results, Sara Lee’s potential damages exposure has been substantially reduced,” added Valarie Bomar, Vice President, Corporate Counsel for Sara Lee.
The Law Bulletin also acknowledged Ms. Scruggs’ thriving public policy practice. Hailing her as “a recognized authority in education law,” the publication noted Ms. Scruggs’ role as counselor to a growing list of education clients and her prior service from 2004-2006 as a senior policy advisor to U.S. Secretary of Education Arne Duncan, then CEO of the Chicago Public Schools.
Underscoring Ms. Scruggs’ commitment to public service and educational reform, the Law Bulletin recognized her groundbreaking pro bono challenge to racial inequity in the State of Illinois’ educational funding system, which became the first suit of its kind in Illinois to survive a motion to dismiss.
“Having a lawyer like Lisa bring her firm's resources to this important public interest litigation is one of the reasons we have been successful,” said Sharon E. Jones, the former COO and executive vice president of the League, now President of O-H Community Partners.
The publication also recognized Ms. Scruggs’ role as Board President of the youth civics organization The Mikva Challenge Foundation, her service on the Board of the Chicago Foundation for Education, and her role as a founding Board member and former Vice-President of the Young Women’s Leadership Charter School.
Practice Groups:
Litigation Department
Complex Commercial Litigation
Related Document(s):
Please click here for Ms. Scruggs’ Law Bulletin profile.
10/23/2009
Firm Secures Important Victory for Embarq, Inc. and Century Tel, Inc.
In an important victory for the Firm’s clients Embarq, Inc. and CenturyTel, Inc., Jenner & Block recently won the dismissal of a class action filed in the federal District Court for the Northern District of California. Embarq and CenturyTel provide high speed internet access to their subscribers. Along with four other internet service providers (ISPs), and a California-based on-line advertising firm called NebuAd, Inc., the clients were sued by subscribers who alleged that NebuAd invaded their privacy and improperly intercepted their communications. In particular, the complaint claimed that NebuAd entered into contracts with the defendant ISPs to install the devices on the ISP networks that would collect subscriber data, and then used that data to deliver targeted advertising .
Plaintiffs’ complaint was filed on November 10, 2008, and raised seven causes of action, including alleged violations of the federal Electronic Communications Privacy Act and California privacy statutes. The defendants moved to dismiss the claims under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), for lack of personal jurisdiction and failure to state a claim upon which relief can be granted.
In granting the Firm’s motion to dismiss for lack of personal jurisdiction, Judge Thelton E. Henderson wrote, “the six ISP Defendants have sustained their burden of demonstrating that haling them to court in California is unreasonable under these circumstances.”
The Firm’s team included Partner David A. Handzo, and Associates Matthew S. Hellman and Joshua L. Kaul.
Practice Groups:
Communications
Litigation Department
10/12/2009
Firm Represents Hephaestus Holdings, KPS Capital Partners in Deals with FormTech Industries
Jenner & Block represented Hephaestus Holdings, Inc. (HHI), a KPS Capital Partners, LP (KPS) business that manufacturers forged parts for power train and wheel end applications, in its recent acquisition of a forged metal component provider, FormTech Industries.
According to KPS, HHI acquired FormTech free and clear of substantially all liens, claims, encumbrances and interests through an auction conducted as part of a sale process under Section 363 of the United States Bankruptcy Code. In addition, with this acquisition, HHI becomes the largest independent manufacturer of forged parts and the leading manufacturer of wheel bearings for the North American automotive industry.
KPS is the manager of the KPS Special Situations Funds, a family of private equity funds with over $2.6 billion of committed capital focused on constructive investing in restructurings, turnarounds and other special situations.
The Jenner & Block legal team on this matter was led by Partners Michael T. Wolf and Elizabeth A. Davidson and Associates Peter H. Rosenbaum, Marc E. Harrison and Mercedes M. Hill.
Please click here for more information.
Practice Groups:
Corporate
Litigation Department
Mergers & Acquisitions
10/5/2009
Six Jenner & Block Partners Selected as 2009 New York Super Lawyers
Jenner & Block Partners Stephen L. Ascher, Andrew H. Bart, Marc B. Hankin, Susan J. Kohlmann, Andrew Weissmann and Richard F. Ziegler were selected for inclusion in the New York Super Lawyers - Metro Edition list for 2009, a peer-reviewed guide to the top five percent of attorneys in New York.
Mr. Ascher was named for his work in Securities Litigation and Criminal Defense: White Collar, General Litigation. Currently, Mr. Ascher is representing several financial institutions in a wide variety of disputes arising out of the ongoing crisis in the credit markets. Many of those matters concern swaps, collateralized debt obligations, and other derivative transactions. Mr. Ascher also represents the Examiner in the bankruptcy of Lehman Brothers Holdings Inc., in which the Examiner was appointed to investigate, among other things, the corporate governance of a company that suffered the largest bankruptcy in history. Over the course of his career, Mr. Ascher has tried a number of major cases, including matters for clients charged by the Securities and Exchange Commission and the government.
Mr. Bart was listed for his work in Intellectual Property Litigation, Business Litigation, and Entertainment & Sports. An experienced commercial litigator with extensive trial experience, Mr. Bart focuses on litigation in the entertainment industry, especially intellectual property issues and contractual disputes. He has handled matters that have resulted in precedent setting decisions in copyright law, the law of privacy and publicity and artist-label relations. He has also handled and tried a variety of other complex commercial cases, ranging from securities litigation and SEC proceedings to partnership and joint venture disputes to a wide variety of contractual disputes.
Mr. Hankin was named for his work in Bankruptcy & Creditor/Debtor Rights. Mr. Hankin has served as counsel to numerous secured creditors, including the secured bank groups in the Exide Technologies and The Warnaco Group Chapter 11 cases, and his debtor representations include Spiegel and Eddie Bauer’s Chapter 11 cases, Grapes Communications’ prepackaged Chapter 11 case and Merrill Corporation’s financial restructuring pursuant to a Section 3(a)(9) exchange offer. He also has significant experience in international insolvency cases, and has served as counsel to the Guangdong Provincial Government as the beneficial owner of Guangdong Enterprises Group, a Hong Kong window company, and Nam Yue Group in Macau in their out-of-court restructurings.
Ms. Kohlmann, Chair of the Unfair Competition, False Advertising and Lanham Act Practice, was named for her work in Intellectual Property Litigation, General Litigation, and Class Action/Mass Torts. Ms. Kohlmann has litigated a broad array of high profile disputes, including a case involving world-renowned artist Andy Warhol's estate. She recently successfully represented the Estate of Elaine Steinbeck in the Second Circuit Court of Appeals in a dispute involving termination rights under the U.S. copyright laws. She is currently representing Viacom in its copyright infringement lawsuit against YouTube and Google.
Mr. Weissmann, Co-Chair of Jenner & Block’s White Collar Defense and Investigations Practice, was listed for his work in Criminal Defense: White Collar. A former Director of the Enron Task Force, Mr. Weissmann represents U.S. and foreign corporations and executives in connection with criminal and civil investigations, including representation before the Department of Justice, the Securities and Exchange Commission, and state and local authorities. Mr. Weissmann recently secured a $431 million award for STMicroelectronics N.V. in an auction-rate securities suit before the Financial Industry Regulatory Authority (FINRA) against Credit Suisse Securities (USA) LLC. This award was one of the largest, if not the largest, award ever made by FINRA.
Mr. Ziegler was recognized for his work in Business Litigation and Corporate Governance & Compliance. Mr. Ziegler is Managing Partner of the Firm's New York office and a Co-Chair of both the Complex Commercial Litigation Practice and the International Arbitration Practice. Since joining Jenner & Block two years ago, he has handled numerous major commercial disputes, led four international arbitrations and represented clients with multi-billion dollar claims against financial institutions arising from the credit crisis. In the governance and compliance arenas, Mr. Ziegler has advised boards of directors on compliance and stockholder matters and conducted internal investigations. Prior to joining the Firm, Mr. Ziegler served as Senior Vice President, Legal Affairs and General Counsel at the 3M Company.
Practice Groups:
Litigation Department
Securities Litigation
White Collar Defense and Investigations
Intellectual Property
Complex Commercial Litigation
Creative Content
Bankruptcy, Workout and Corporate Reorganization
Bankruptcy Litigation
Unfair Competition, False Advertising and Lanham Act
International Arbitration
9/24/2009
Suskin Appointed to Board IQ Advisory Board
Jenner & Block Partner Howard S. Suskin was recently appointed to the nine-member, Advisory Board of Board IQ, a Financial Times publication. Board IQ, published twice each month, delivers an in-depth look at the most pressing issues driving mutual funds governance and provides perspective and analysis on the mutual funds industry and developments.
Mr. Suskin is Co-Chair of the Firm’s Class Action Practice and a member of the Securities Litigation and International Arbitration Practices. He is also a member of the Firm’s Subprime Litigation Task Force and its Tenant-in-Common Workout Task Force. He has concentrated his practice in the civil litigation area, focusing primarily on class action, securities law, and professional liability matters. He has substantial first-chair experience representing individuals, directors, officers and corporations in civil, administrative and criminal securities matters, including securities fraud and misrepresentation claims, derivative actions claiming breach of fiduciary duty, contests for corporate control, insider trading investigations, and broker dealer issues.
Please click here for more information.
Practice Groups:
Class Action
Litigation Department
Securities Litigation
9/21/2009
Martin Elected to the Commercial Club of Chicago
Jenner & Block Partner Craig C. Martin has been elected to the membership of the Commercial Club of Chicago.
The Commercial Club of Chicago is a membership organization comprised of senior business, professional, educational and cultural leaders who seek to address social and economic issues of importance to the Chicago region. Individuals are elected to membership based on their reputation, their position in their business or profession, their service in the public interest, and their demonstrated personal commitment to the club's goals of promoting the social and economic vitality of the metropolitan area of Chicago.
Membership in the organization is limited to 350 active members. Total membership is approximately 500, including active, life and non-resident members.
Mr. Martin is Co-Chair of Jenner & Block's Litigation Department and a member of the Firm’s Policy Committee. Mr. Martin practices in complex civil and commercial litigation involving a wide variety of substantive areas of the law. He represents Fortune 500 companies and wealthy families in complex disputes in state and federal courts across the country. In addition, he regularly counsels clients on a range of sensitive and complicated matters. Mr. Martin is a member of the board of directors of the Chicago Boys & Girls Clubs and the Lyric Opera of Chicago. He is also a member of the Chicago Club and the Economic Club of Chicago.
Practice Groups:
Litigation Department
9/11/2009
Former Associate White House Counsel Kenneth Lee Joins Jenner & Block’s L.A. Office
Kenneth K. Lee, former Associate Counsel to President George W. Bush, has joined Jenner & Block’s Los Angeles office as a partner. Mr. Lee, who also practiced law with another prominent law firm and acted as special counsel to the Senate Judiciary Committee during the confirmation hearing of Chief Justice John Roberts, brings significant litigation and counseling experience to the Firm’s Litigation Department and Complex Commercial Litigation Practice.
“We are thrilled that Ken has joined Jenner & Block,” said Managing Partner Susan C. Levy. “His unique experiences will augment the litigation capabilities of our growing L.A. office and his career of exceptional service to clients and the public are a great match for our values-based firm.”
As Associate Counsel to the President, Mr. Lee represented the White House in various investigations and other sensitive matters, such as briefings to congressional oversight staff. In addition, Mr. Lee served as the White House’s legal liaison to the Department of Health and Human Services, the Office of Science and Technology Policy, and the Small Business Administration. He also coordinated with the Department of Justice on numerous litigation matters involving White House interests.
“I’m excited to help Jenner & Block expand its West Coast presence,” said Mr. Lee. “I look forward to offering my experience from both the public and private sector to help clients navigate and resolve their most challenging legal issues.”
“We’ve admired Ken since we worked with him in Los Angeles almost a decade ago,” said Rick Richmond, who serves as Managing Partner of the Los Angeles office. “We could not be happier that such an accomplished lawyer and high quality person has joined Jenner & Block.”
Prior to his work at the White House, Mr. Lee was a senior litigation associate at Wachtell, Lipton, Rosen & Katz, where he represented clients in securities, insurance coverage and corporate control litigation matters.
From July to September 2005, Mr. Lee was special counsel to the staff of the Senate Judiciary Committee for the confirmation of John Roberts to the U.S. Supreme Court. He also was a clerk to Judge Emilio Garza of the U.S. Court of Appeals for the Fifth Circuit.
Mr. Lee’s pro bono experience includes winning a reversal of a drug conviction of an indigent client, filing a Second Circuit amicus brief on behalf of a slain police officer’s widow and drafting an amicus petition for certiorari in a capital criminal case.
Mr. Lee is a 2000 magna cum laude graduate of Harvard Law School and a 1997 summa cum laude and Phi Beta Kappa graduate of Cornell University. Mr. Lee has written a book on immigration law and policy titled Huddled Masses, Muddled Laws (Praeger Publishers, 1998), and in both legal and non-legal publications, including The New Republic and The Weekly Standard. Mr. Lee is admitted to practice in California and New York.
For purposes of certain state bar rules, this press release may be considered Attorney Advertising. The headquarters of the firm are Jenner & Block, 330 N. Wabash, Chicago, IL 60611, 312-222-9350. Prior results do not guarantee a similar outcome. Rick Richmond and Susan Levy are responsible for the content of this press release.
Practice Groups:
Complex Commercial Litigation
Litigation Department
9/11/2009
Jenner & Block Secures $101 Million Jury Verdict for Ventas
On September 4, Jenner & Block secured a significant jury win for Ventas, an S&P 500 company that is a leading healthcare real estate investment trust. Following a three-week trial in the U.S. District Court for the Western District of Kentucky, the jury awarded $101 million to Ventas as compensatory damages against HCP, Inc. for tortious interference with business expectation arising out of Ventas’ acquisition of the Sunrise Senior Living REIT in 2007.
Ventas won a confidential auction to purchase Sunrise REIT, a Canadian REIT, for approximately $2 billion based upon a price of $15 per share, subject to shareholder approval. Three days before the record date for the shareholder vote, its principal competitor, HCP, made a public topping bid for $18 a share. HCP claimed that its bid was superior and permitted under the “fiduciary out” provisions of the Ventas purchase agreement. A Canadian court held that HCP's bid was barred by its confidentiality agreement with the selling entity. The HCP press release caused the Sunrise REIT stock to spike to $18 on heavy volume and effectively foreclosed shareholder approval of the Ventas $15 agreement. Following the Canadian Court decision, Ventas bumped its bid to $16.50 and successfully closed the transaction. Ventas paid $101 million more for the transaction than its original contract price.
After the close of the deal, Ventas filed a complaint alleging that HCP, also an S&P 500 company, interfered with its initial purchase agreement by making misleading statements related to the bid. In response, HCP through its counsel Mark Hansen of Kellogg, Huber, Hansen, Todd, Evans & Figel, filed a $300 million counterclaim against Ventas, which was ultimately dismissed by the court before trial.
To prevail, Ventas had to prove that HCP’s conduct was “significantly wrongful conduct such as fraudulent misrepresentation, deceit or coercion.” The jury on September 4 found 100% apportionment of fault to HCP and awarded 100% of the requested compensatory damages to Ventas.
The Jenner & Block trial team was led by Partner David J. Bradford, and included Partners Terri L. Mascherin, Eric A. Sacks, and Daniel J. Weiss; Associates Michael L. Cebula, Melissa W. Criger, Brian L. Dougherty, John K. Min, Rachel S. Morse, Kyle A. Palazzolo, and Bradley M. Yusim; Senior Paralegal Shawn K. McGee; Paralegal W. Michael Hughes; Project Assistant Gretchen J. Pinnick; Case Assistant Brett J. Mullenbrock; and Legal Secretaries James T. Gainey and Fran M. Sattelmayer. Associates Ryan K. Harding, J. Andrew Hirth, Thalia L. Myrianthopoulos, Shana A. Shifrin, Shyni R. Varghese, Benjamin P. Wieck, and Brian J. Wilson; Paralegal Coordinator Lamia K. Azize; Paralegals Jeanne C. Haske and Brian D. Kubiak; Project Assistant Lauren E. Wang; Systems Administrator Mark Mitchuson; and Applied Technology Analysts Michael D. Cichy and Lory I. Manheimer also made significant contributions.
Susan C. Levy was a member of the trial team before becoming Managing Partner. This case was also vetted through the Jenner & Block Grand Rounds process by Partners Donald R. Harris, Richard T. Franch and Chester T. Kamin.
Practice Groups:
Complex Commercial Litigation
Litigation Department
8/19/2009
Amicus Brief Urges Continued Funding for Independent Research and Development in Government Contracts
Government contractors should be reimbursed by the government for independent research and development (“IR&D”) costs even where those costs also support the contractor’s work under a contract, according to a Jenner & Block amicus brief recently filed in the U.S. Court of Appeals for the Federal Circuit on behalf of the National Defense Industrial Association (“NDIA”).
The amicus brief, filed in the case ATK Thiokol v. United States, urges the appeals court to affirm a decision by the Court of Federal Claims which held that the IR&D cost principle, which promotes cost sharing as a means of encouraging the development of state-of-the-art technologies, should apply where the contracting parties intend to exclude the effort from the contract.
In contrast, the Government’s position in the case is that any effort even implicitly required to perform the contract should not be charged to IR&D and must be charged to the contract.
Adopting the government’s position regarding the IR&D cost principle “would stifle innovation throughout the defense industry and, ironically, undermine the Government's ability to acquire cutting-edge technologies,” the Firm wrote in its brief. The brief asserts that IR&D promotes innovation critical to both Government and industry, and if the development of state-of-the-art technologies lacks initial funding, government interests will suffer. The brief also notes the lower court’s ruling in the case tracks the plain meaning of the regulation in question and follows Federal Circuit precedent.
The amicus brief was filed by Jenner & Block Partners David A. Churchill, Co-Chair of the Firm’s Government Contracts Practice, and Kevin C. Dwyer, Jessie K. Liu and Associate Michael A. Hoffman.
The National Defense Industrial Association is a national organization of 1,560 companies and almost 71,200 individuals dedicated to maintaining a close working relationship between American industry and the Government in pursuit of national security.
Practice Groups:
Litigation Department
Government Contracts
Related Document(s):
Please click here for the full text of the brief.
8/18/2009
Firm’s Amicus Brief Urges Patent Protection for Business Process Methods
Limiting the scope of patentability of medical processes under 35 U.S.C. § 101 could dramatically diminish incentives for innovation, according to a Jenner & Block amicus brief filed in the U.S. Supreme Court on behalf of Pharmaceutical Research and Manufacturers of America (“PhRMA”). The brief was filed in the case, Bilski v. Doll, which involves a patent application for a method to hedge risk in commodities trading that was rejected by the Patent and Trademark office on the grounds that it did not pass the business process model test.
According to the brief, the Court should not adopt a new test for the boundaries of § 101. The amicus brief urges the Court to, “ensure that however the scope of patentability is assessed under § 101, inventors retain the ability to patent medical processes, especially methods of diagnosis and treatment that make use of pharmaceuticals.” The brief states that PhRMA holds no position on the Bilski patent but believes, “there is no need for a new test because the existing prohibition on patenting of laws of nature and abstract ideas is sufficient.”
In the event that the Justices determine that a new test for patentability is warranted, the brief states that PhRMA believes that the Court, “should make clear that medical process patents that make use of pharmaceuticals fall within it.” Additionally, the brief argues that, “eliminating patent protection for medical processes would not only deviate from a long history of administrative and judicial decision on patentability of such processes, it would also be inconsistent with Congress’s clear intent.”
The Court is expected to hear oral arguments in the case in the Fall.
The amicus brief was filed by Jenner & Block Partners Harry J. Roper, Paul M. Smith, Marc A. Goldman, and Associate David Z. Moskowitz.
The Pharmaceutical Research and Manufacturers of America is a voluntary, nonprofit association representing the country’s leading research-based pharmaceutical and biotechnology companies. The association’s members have invested more than $350 billion over the past decade to discover and develop new medicines and new uses for existing medicines.
Practice Groups:
Intellectual Property
Litigation Department
Related Document(s):
Please click here to view the article
8/17/2009
Firm Files Amicus Brief in Closely Watched Stevens Supreme Court Free Speech Case
On Monday, July 27, Partners Paul M. Smith, Katherine A. Fallow, and Associates Jessica Ring Amunson, and Joshua A. Block filed an amicus brief on behalf of DKT Liberty Project, The American Civil Liberties Union and The Center for Democracy and Technology in United States v. Stevens pending before The Supreme Court. This First Amendment case involves 18 U.S.C. § 48 which criminalizes the knowing creation, possession or sale of depictions of animal cruelty with the intent to secure commercial gain.
The brief asserts that “Section 48 violates the First Amendment on its face. It criminalizes protected expression based on its content, and therefore triggers -- and fails -- strict scrutiny.”
The brief presents two arguments. First, it argues that, “the Court should reject the government’s novel and limitless argument that the question whether speech is entitled to First Amendment protection at all should be answered based on a ‘categorical balancing of the value of the speech against its societal costs.’ Gov’t Br. at 8.” Second, it argues that the government is, “Wrong when it suggests that the constitutionality of Section 48 should be resolved on a case-by-case basis, instead of through facial invalidation of the statute.”
The authors assert that the government, “Urges the Court to do something it has not done in more than a quarter-century: declare that an entire category of speech falls completely outside the protection of the First Amendment”. The brief states that the government, “Asks the Court to reverse the strong presumption that content-based speech restrictions like Section 48 are unconstitutional unless the government carries the burden of satisfying strict scrutiny.”
The Third Circuit Court of appeals held that the statute was unconstitutional as it placed a prohibition, based on content, on protected speech. The Supreme Court will hear oral arguments in the case during the Court’s next term beginning in October 2009.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Media and First Amendment
Related Document(s):
Please click here to view the Firm's Amicus Brief.
8/7/2009
Sacks Named a Fellow of Leadership Greater Chicago
Jenner & Block Partner Eric A. Sacks has been named to the Leadership Greater Chicago 2010 Fellowship Class. Leadership Greater Chicago is a nonprofit organization dedicated to educating “diverse emerging leaders about the issues facing the region, connect them to each other, and mobilize them to make a deep commitment.” As one of the 36 Fellows, Mr. Sacks, along with other business, government, and civic leaders, will participate in a 10-month study of the challenges facing Chicago-area communities. Since 1984, business, government and civic leaders have nominated younger leaders to participate in the Fellows program, with the goals of familiarizing leaders with the diverse perspectives on the challenges facing Greater Chicago communities and encouraging the leaders to become and stay involved in the Greater Chicago community throughout their lives.
Fellows are selected, according to LGC, for their leadership ability, commitment to civic and community affairs, and because they are “working to make a difference.”
Mr. Sacks is a partner in the Firm's Litigation Department, and is Chair of Jenner & Block’s Technology Litigation Practice and is a member of the Firm’s Complex Commercial Litigation and Antitrust Litigation Practices. Mr. Sacks serves on the Board of Directors of the Public Interest Law Initiative, a not-for-profit organization dedicated to encouraging attorneys to perform pro bono work service throughout their careers. He also serves on the Board of Directors and Executive Committee of the Anti-Defamation League, Greater Chicago/Upper Midwest Region, and on the Board of Directors of the Jewish Council on Urban Affairs.
Practice Groups:
Litigation Department
Complex Commercial Litigation
Antitrust Litigation
7/17/2009
DeSanctis Recognized in National Law Journal's "40 Under 40: Washington's Rising Stars"
On July 13, DC Managing Partner Michael B. DeSanctis was recognized by The National Law Journal in its "40 Under 40: Washington’s Rising Stars" feature. The newspaper’s editors wrote that Mr. DeSanctis and the other honorees "will play a major role in the legal community of the nation's capital — and therefore of the nation — for years to come."
In recognizing Mr. DeSanctis, the NLJ noted his role as lead counsel for SoundExchange in the 2007 Copyright Royalty Board trial that resulted in dramatically increased royalties paid for music played on satellite radio. Representing SoundExchange and, through it, the interests of the majority of the country’s recording artists and record companies, Mr. DeSanctis led a team of ten lawyers through the entire case, culminating in 30 days of trial. In January 2008, the Board granted the artists and record companies a 300% increase in royalties -- a ruling worth well over $1 billion. "Record companies and recording artists have Michael DeSanctis to thank for the size of the royalties they receive for satellite radio play," said the NLJ.
The newspaper also noted Mr. DeSanctis’ practice focusing on the music, television and entertainment industry, and the intersection of new technology and the Internet. The NLJ referenced in particular his work representing Viacom, Inc. in its high-profile copyright infringement suit against YouTube and Google, in which he is managing technology aspects of the case, and handling all technology experts.
In addition, Mr. DeSanctis secured a precedent-setting victory for the recording industry in 2007 in a case of first impression under the Audio Home Recording Act in Atlantic Recording Corp. v. XM Satellite Radio Corp. Adopting his arguments, the court held that XM Radio was not immunized from copyright liability under the AHRA when it made portable devices that can receive and store permanent copies of satellite radio broadcasts.
Mr. DeSanctis is a member of the Firm’s Litigation Department and Co-Chair of the Election Law and Redistricting Practice. He is also a member of the Creative Content and Communications Practices. Mr. DeSanctis serves on the Firm's Management Committee.
Practice Groups:
Creative Content
Litigation Department
Related Document(s):
Please click here to view the article.
7/14/2009
Appellate Victory Allows Cayuga Indian Nation to Resume Tax-Free Cigarette Sales
An appellate court ruled on Friday that the Cayuga Indian Nation may resume selling tax-free cigarettes, reversing a lower court’s decision that had held that Indian reservation sellers in New York could not sell cigarettes to non-members without tax, and that two Cayuga Nation convenience stores were not located on a "qualified reservation" in any event. The appellate decision has broad ramifications for Indian nations throughout the state of New York, and the case attracted amicus curiae participation by the United States, the City of New York, the Seneca Indian Nation, and others.
The win is an important victory for Jenner & Block client the Cayuga Nation. By allowing the Nation to resume cigarette sales, it returns a key revenue stream to the Nation, which provides social and other governmental services to its members.
The ruling also enjoins a threatened criminal tax prosecution. In late 2008, officials from two New York counties obtained search warrants and seized over 17,000 cartons of cigarettes and other property from two convenience stores located on the Cayuga Nation's historical federal treaty reservation located near Syracuse. The county officials asserted that the stores were illegally selling tax-free cigarettes to non-Cayuga members in violation of state tax law, and that the convenience stores were not located on a qualified reservation. The county officials claimed that prior sales had amounted to nearly $500,000 in unpaid taxes.
In December 2008, state Supreme Court Justice Kenneth R. Fisher ruled that Indian tribes in New York were required to collect the state tax on cigarette sales to non-members, and that the Cayuga stores were not located on a qualified reservation and thus could not sell tax-free cigarettes to anyone. The court allowed criminal proceedings against the Cayugas to proceed, and county district attorneys obtained sealed indictments. In February, Jenner & Block assisted the Cayuga Nation to obtain a stay of that decision pending the outcome of the Nation's appeal.
Closely tracking arguments made by the Firm, the Fourth Judicial Department appellate court in New York ruled 4-1 on July 10 that as a matter of law the convenience stores at issue are located on a qualified reservation. The court also ruled that because New York State never implemented a 2005 tax law intended to provide coupons to allow members of Indian nations to purchase cigarettes without tax, there was no independent mechanism for the Cayuga Nation or other Indian nations to impose a tax on cigarette sales to non-members, and therefore “possession or sales of untaxed cigarettes on qualified reservations cannot subject the seller or possessor to criminal prosecution.”
Jenner & Block Partner David W. DeBruin leads the Jenner & Block team on this matter. Former partner Ian Heath Gershengorn, who is currently Deputy Assistant Attorney General at the Department of Justice, argued the case before the appellate court.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
7/8/2009
DeBruin Honored as the 2009 DC Bar Pro Bono Lawyer of the Year
Jenner & Block Partner David W. DeBruin was honored as the District of Columbia Bar’s Pro Bono Lawyer of the Year on June 25 at its Annual Business Meeting & Awards Dinner. The award recognizes “exemplary individual service providing direct legal representation to low income individuals in the DC community,” according to the DC Bar.
“Mr. DeBruin’s commitment to protecting the rights of individuals accused of felony crimes demonstrates the highest ideals of the legal profession,” said Katherine Mazzaferri, Executive Director of the DC Bar.
In addition to handling complex litigation matters before the Supreme Court as well as federal trial and appellate courts, Mr. DeBruin “is an equally dedicated and passionate advocate for low-income and indigent clients facing civil and criminal matters in the Superior Court of the District of Columbia,” the DC Bar said in a statement. He has devoted more than 1,000 hours to pro bono matters over the past year.
Mr. DeBruin regularly helps protect the constitutional rights of indigent clients accused of felony crimes in the District. Most recently, Mr. DeBruin worked on the representation of Ronald Cheadle, an indigent client who was charged with three separate first-degree homicides in DC Superior Court, “devoting three months to this difficult representation, including a nine-week trial,” noted Ms. Mazzaferri. In the past year, Mr. DeBruin dedicated considerable time representing a pro bono client in a death penalty appeal in the U.S. Court of Appeals for the Fourth Circuit.
Mr. DeBruin has been actively involved with the DC Bar Pro Bono Program for more than a decade, including his work as the Firm’s longtime coordinator for the DC Bar Advocacy & Justice Clinic (“DC Bar Clinic”). Through his involvement with the clinic, Mr. DeBruin “has represented clients in civil matters such as denied Social Security disability benefits, family law matters, and landlord-tenant disputes,” noted the DC Bar.
In addition to his benefits work, Mr. DeBruin successfully represented an indigent DC resident in a probate action filed in the DC Superior Court, allowing his client to obtain a mortgage on his home and make needed repairs.
Mr. DeBruin actively works to bring in pro bono appointments from the U.S. Court of Appeals for the DC Circuit to the Firm. In the past year, he successfully represented the interests of two pro se litigants before the DC Circuit, while supervising associates in both matters.
On a national level, Mr. DeBruin has worked on high-profile pro bono cases before the Supreme Court, including Grutter v. Bollinger, 539 U.S. 306 (2003) and Rumsfeld v. Padilla, 542 U.S. 426 (2004), and has provided counsel to numerous indigent clients on death row.
As longtime Chair of Jenner & Block’s national Pro Bono Committee, Mr. DeBruin has spearheaded Firm policies and practices that institutionally encourage significant pro bono participation at all levels of the Firm. He is a partner in the Firm's Litigation Department and a member of the Complex Commercial Litigation Practice. Mr. DeBruin also serves as one of several Counsel to the Firm.
Practice Groups:
Litigation Department
7/8/2009
Firm’s Amicus Brief Impacts Supreme Court Ruling in School Strip Search Case
On June 25, the Supreme Court ruled in an 8-1 judgment that 13-year old honors student Savana Redding’s Fourth Amendment rights had been violated when school administrators suspected her of possessing ibuprofen and performed a strip-search without the consent of her mother.
A Jenner & Block team led by Partner Julie M. Carpenter and Associate Michael A. Hoffman filed an amicus brief in the case on behalf of the National Association of Social Workers, The National Education Association, The National Association of School Psychologists, The American Society for Adolescent Psychiatry, and the American Professional Society on the Abuse of Children in support of Redding. The Court cited the brief in its opinion, which documents the “psychological and emotional harm to which children can be exposed” as the result of a strip search, and details how the effects, “both acute and long-term, can be akin to those of psychological maltreatment.”
The Court noted that, “Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure.”
Ms. Carpenter is a partner in the Firm's Government Contracts Practice, and a member of the Litigation Department and Media and First Amendment Practice. In addition, Ms. Carpenter serves as Co-Chair of the Firm's Positive Work Environment Committee and its Pro Bono Committee. Mr. Hoffman is a member of the Firm’s Litigation Department.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
7/8/2009
Jenner & Block Obtains Victory for Recording Industry Clients in Copyright Violation Suit Against Usenet.com
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
Practice Groups:
Creative Content
Litigation Department
6/26/2009
National Law Journal Recognizes Bradford as One of Country’s Top Trial Attorneys
Jenner & Block Partner David J. Bradford was recognized by the National Law Journal as one of 12 “winning” litigators nationwide who exemplify “the qualities that make a great trial attorney.”
Mr. Bradford was honored for his trial victory on behalf of Equity LifeStyle Properties in MHC Financing, Ltd, et al v. City Of San Rafael, in which the U.S. District Court for the Northern District of California declared a common form of mobilehome rent control in California unconstitutional. The court’s ruling was the culmination of more than eight years of litigation. Please click here to view the NLJ’s profile on Mr. Bradford.
ELS first filed a lawsuit against the City of San Rafael, California in 2001 seeking to invalidate an ordinance that effectively allows any arguable benefits of rent control to be sold by departing tenants to incoming tenants. Substantial financial interests were at stake: the City of San Rafael’s rent control ordinance in question was preventing Equity LifeStyle Properties from realizing the full value of its $120 million property, and the outcome affected the cost of manufactured home community living. The court’s ruling was also the first federal court decision to resolve, following a full trial, the merits of an important constitutional issue left open by the U.S. Supreme Court concerning government regulatory takings of private property.
Mr. Bradford led the Jenner & Block team, which also included Lisa T. Scruggs, Bradley M. Yusim, Sean C. Herring, Jason J. Green, Matt D. Basil, Shawn K. McGee, Tom R. Scholtus and Fran M. Sattelmayer, that presented extensive empirical proof that the cost of manufactured homes in rent control communities was inflated by hundreds of thousands of dollars, representing the capitalized value of future rent control savings. The team also showed at trial that the effect of the rent control regulation was to exclude low-income and low-net-worth individuals from access to an important form of affordable housing. For more information about the case, please click here.
The National Law Journal wrote in Mr. Bradford’s profile that he “brought to the case a distinguished record as a trial attorney for big corporate clients in complex and novel cases with large sums of money at stake.”
Mr. Bradford is Co-Chair of the Firm's Litigation Department. He is a member of the Complex Commercial Litigation Practice. Mr. Bradford also currently serves on the Firm’s Policy Committee.
Mr. Bradford has served as lead trial counsel in a wide variety of lawsuits and arbitration proceedings, including merger and acquisition litigation, securities, RICO, insurance coverage, constitutional, professional liability, and complex commercial cases. He has successfully tried a number of cases to verdict in state and federal courts and has successfully argued a number of appeals in both state and federal courts of appeal. He has served as lead counsel for a number of Fortune 500 companies, leading law firms, financial institutions, officers and directors and individual entrepreneurs. He has litigated cases as lead counsel in over a dozen different states. He has also served as special counsel to a number of internal investigations and special committees.
Practice Groups:
Complex Commercial Litigation
Litigation Department
Related Document(s):
Please click here to view article.
6/26/2009
Jenner & Block Honored With Cook County Bar Association's 2009 Presidential Award
On June 19 at the Cook County Bar Association’s 95th Annual Awards and Installation Affair, Jenner & Block received the 2009 Presidential Award in recognition of its pro bono representation of the Chicago Urban League. The Presidential Award is given to individuals and organizations that have made an outstanding contribution to the Cook County Bar Association during the past year.
The Firm’s team, led by Partner Lisa T. Scruggs, is serving as pro bono counsel for the Chicago Urban League in its lawsuit that challenges the State’s method for raising and distributing education funds to local school districts and the Illinois State Board of Education’s implementation of the system. The Urban League asserts that the State’s public school funding scheme disparately impacts racial and ethnic minority students who attend Majority-Minority Districts. In addition to Ms. Scruggs, Partners David J. Bradford, Robert L. Graham, Gail H. Morse, Associates Herbert C. Brown, Brian L. Dougherty, Grace S. Ho, Stephanie Jean-Jacques, Shannon J. Jones, Kyle A. Palazzolo, Sandi J. Toll, and Shyni R. Varghese and paralegal Jessica Merkouris are part of the Firm’s team working this matter. Of Counsel Benjamin K. Miller has also made valuable contributions to the case.
The 95th Annual Awards & Installation Banquet also celebrated the installation of Marian E. Perkins as President of the Cook County Bar Association, recognized the service of outgoing bar association President Zeophus Williams and applauded the work of several bar association members and friends of the legal community, including Jenner & Block. Cheryle R. Jackson, President and CEO of The Chicago Urban League, served as keynote speaker.
The Cook County Bar Association is the oldest association of African American lawyers and judges in the United States. An affiliate of the National Bar Association, the CCBA is committed to the fair administration of justice and equal protection under the law in the United States and abroad.
Practice Groups:
Litigation Department
6/17/2009
U.S. District Court Honors Partner Jeffrey D. Colman for Excellence in Pro Bono Service
Jenner & Block Partner Jeffrey D. Colman was honored at the U.S. District Court for the Northern District of Illinois’ Tenth Annual Awards Ceremony for Excellence in Pro Bono and Public Interest Service, held May 29, 2009 at the Dirksen Courthouse in Chicago. The award, presented by the District Court and the Chicago Chapter of the Federal Bar Association, recognized Jeff Colman’s dedicated representation of a pro bono client in a recent successful post-conviction proceeding before the court, as well as his overall commitment to public service and pro bono work.
At the ceremony, U.S. District Court Judge Elaine E. Bucklo praised Jeff Colman and his team for their work in pursuing a petition for a writ of habeas corpus on behalf of a client who claimed that prosecutorial misconduct had denied him a fair murder trial. Judge Bucklo, who granted the client’s habeas petition in November 2008, acknowledged that the Jenner & Block team not only devoted substantial efforts to the client before the Northern District of Illinois, but also took on two additional pro bono cases for the client in the Central District of Illinois and the Illinois state courts. In addition, Judge Bucklo lauded Mr. Colman’s hard work and commitment to representing four clients held at the U.S. Naval Base in Guantanamo Bay, Cuba.
Associate Anne P. Ray accepted the award on behalf of Jeff Colman and the Firm’s team on the matter, which also included Associates Justin A. Houppert, Michael H. Margolis and Ashley M. Schumacher and former associate Shannon P. Bartlett.
“When I agreed to work on this case back in 2008, I expected that Jeff would be like many partners at our firm — eager and willing to supervise a young associate on a pro bono matter,” said Ms. Ray. “But Jeff went far above and beyond that.” Ms. Ray noted that Jeff devoted many nights and weekends to his pro bono work for the client and provided extensive support and guidance to the associates on the matter. Jeff, who could not be at the award's ceremony stated: "Over the years, I have been truly privileged to work with some great lawyers, but I have never worked with a better--or more dedicated--team. Anne, Justin, Shannon, Mike and Ashley have been truly extraordinary."
Mr. Colman, Co-Chair of Jenner & Block’s Professional Responsibility Practice, has been deeply involved in pro bono and public service throughout his 35-year career. In addition to his representation of prisoners at Guantanamo, Mr. Colman has litigated death penalty cases in Georgia and Illinois, has represented minorities in voting rights litigation and housing discrimination cases, and has represented a significant number of indigent defendants in criminal trials and pro bono appeals.
Mr. Colman recently served as President of the Board of Directors of the Chicago Bar Foundation and President of the Board of Directors of the Constitutional Rights Foundation Chicago. In the past, he has served as a member of the board of directors of numerous organizations, including the Mexican American Legal Defense and Educational Fund, the John Howard Association, and the Leadership Council for Metropolitan Open Communities.
Practice Groups:
Litigation Department
6/12/2009
Paul Smith Honored by Electronic Privacy Information Center
Jenner & Block Partner Paul M. Smith was awarded the Champion of Freedom award by the Electronic Privacy Information Center (EPIC), the Washington, DC- based public interest research center established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values.
Mr. Smith, a veteran U.S. Supreme Court litigator, was recognized for arguing “groundbreaking cases in the Supreme Court, defending privacy, freedom of expression, and voting rights.”
Among Mr. Smith’s notable Supreme Court cases are Crawford v. Marion County Election Board (2008), the Indiana Voter ID case; LULAC v. Perry (2006), and Vieth v. Jubelirer (2003), two congressional redistricting cases; Lawrence v. Texas (2003), involving the constitutionality of the Texas sodomy statute; and United States v. American Library Association (2003), involving a First Amendment challenge to the Children's Internet Protection Act. He has also represented various clients in trial and appellate cases involving the First Amendment, voting rights and other constitutional issues. Over the past several years, he has represented the video game industry in numerous cases successfully challenging legislative attempts to regulate the sale of video games based on their content.
Mr. Smith is Chair of the Firm’s Appellate and Supreme Court Practice and a Co-Chair of its Creative Content, Media and First Amendment, and Election Law and Redistricting Practices. He is a member and former Chair of the National Board of Directors of The American Constitution Society, Co-Chair of the Board of Directors of Lambda Legal and a member of the Board of Directors of the Washington Lawyers Committee for Civil Rights and Urban Affairs.
Mr. Smith was honored at the EPIC's 15th anniversary event, held on June 9. In addition to Mr. Smith, EPIC awarded 2009 Champion of Freedom Awards to Congressman Edward Markey and Hollywood director and producer D.J. Caruso. Slate Supreme Court correspondent Dahlia Lithwick emceed the event.
Practice Groups:
Litigation Department
Appellate and Supreme Court Practice
Media and First Amendment
Election Law and Redistricting Practice
Creative Content
6/8/2009
Jenner & Block Secures Victory for General Dynamics Before Armed Services Board of Contract Appeals
Jenner & Block assisted General Dynamics C4 Systems in securing a significant government contract victory at the Armed Services Board of Contract Appeals. General Dynamics C4 Systems sought to recover the costs of manufacturing Digital Modular Radios ordered by the U.S. Navy in late 2003. The parties disputed whether the Navy could enforce a flurry of orders for the sophisticated radios that were issued during the last several days of the contract, at the contract's lowest prices. In a December 2008 trial, General Dynamics C4 Systems witnesses convinced the Board that although the company had accepted similar orders over the course of the contract, the disputed orders were issued contrary to the contract's requirements and were properly rejected by the company. The company overcame Navy arguments of waiver and estoppel, and secured a Board decision that will result in an additional recovery of more than $35 million. While the Board normally hears its cases in federal courtroom facilities, in this case the trial took place in General Dynamics' Scottsdale, Arizona facilities.
The Firm's team representing General Dynamics C4 Systems included William R. Stoughton and Daniel E. Chudd, with assistance from Jason Berrus, Arjumand Hamid and Alex Lee.
Practice Groups:
Government Contracts
Litigation Department
Related Document(s):
Please click here to view the the Board's ruling.
6/4/2009
Firm Obtains First Amendment Telecommunications Victory in Tenth Circuit
In a major victory for Jenner & Block client Sorenson Communications, Inc., the U.S. Court of Appeals for the Tenth Circuit sustained Sorenson’s constitutional and statutory challenges to multiple restrictions on the use of customer data and fund revenue by providers of telecommunications relay services (TRS), which includes video relay services provided to individuals who are deaf and hard of hearing.
The providers’ costs associated with TRS are compensated through a fund governed by the Federal Communications Commission (FCC). At issue in this case were restrictions articulated in two FCC declaratory rulings barring TRS providers from using “a consumer or call database to contact TRS users for lobbying or any other purpose” and from using revenues from the TRS fund to contact customers for lobbying or advocacy purposes. On behalf of Sorenson, a leading TRS provider, Jenner & Block argued that the restrictions unlawfully violated the U.S. Administrative Procedure Act and the Constitution.
Evaluating the FCC’s restriction on providers’ use of customer data under the test set out in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566 (1980), the court agreed that the restriction violated the First Amendment “as an impairment of providers’ right to engage in political and commercial speech” without any showing the restriction is narrowly tailored to advance a significant government interest.
“Nowhere in the Declaratory Rulings or the FCC’s brief to this court…does the FCC articulate the governmental interest to be served by the restriction, or why the restriction is narrowly tailored to not restrict more speech than necessary,” said the opinion.
The court also found the FCC’s restriction on using TRS revenues for lobbying to be “arbitrary and capricious” because the FCC failed to explain why lobbying was singled out for prohibition. The FCC’s justification that lobbying expenditures are inconsistent with the purpose of the TRS Fund “is inconsistent with the logic of a price cap-based compensation system,” said the court.
The Firm's team on this matter included Partner Michael B. DeSanctis, Associates Jonathan F. Olin and Jessica Ring Amunson and former Jenner & Block attorneys Donald B.Verrilli, Jr., Ian Heath Gershengorn, and Ginger D. Anders.
Practice Groups:
Communications
Litigation Department
Media and First Amendment
Appellate and Supreme Court Practice
Related Document(s):
Please click here for the court’s opinion.
5/27/2009
Thomson Featured in the May 2009 Issue of Chicago Lawyer
Jenner & Block Associate Wade A. Thomson was featured in the May 2009 issue of Chicago Lawyer in a Q&A column. The article discuses Mr. Thomson’s work in First Amendment and media law cases as well as his pro bono practice.
In particular, the article examines Mr. Thomson’s career path to becoming a lawyer, which began with pursuing work in human rights and journalism. While in law school, Mr. Thomson realized that specializing in media law, along with doing pro bono work, combined his interests. The article also discusses Mr. Thomson’s most memorable moments as a lawyer and his advice to new lawyers.
Mr. Thomson is a member of the Firm’s Litigation Department and Media & First Amendment Practice. He is a member of the Pro Bono Committee and is a recipient of the Firm’s Albert E. Jenner, Jr. Pro Bono Award. Mr. Thomson is a magna cum laude graduate of the University of Illinois College of Law, where he also served as assistant editor of the University of Illinois Law Review.
Practice Groups:
Litigation Department
Media and First Amendment
Related Document(s):
Please click here to view article.
5/18/2009
U.S. Supreme Court Ends Decades-Long Dispute Over Steinbeck’s Works
Ending a decades-long dispute over the rights to John Steinbeck’s classic literary works such as Of Mice and Men and The Grapes of Wrath, the U.S. Supreme Court today declined to hear an appeal by the son and granddaughter of renowned novelist John Steinbeck, thereby affirming that the rights to the author’s best-known early works lawfully belong to the Estate of John Steinbeck’s widow, Elaine Steinbeck.
“John Steinbeck’s wishes related to ownership of his literary works have been validated by the nation’s highest court,” said Jenner & Block Partner Susan J. Kohlmann, who represents the Estate of Elaine Steinbeck in the dispute. “Today's announcement upholds the lower court's correct application of the Copyright Act to ownership of the works at issue, and the Estate of Elaine Steinbeck and its heirs are delighted with the Court's action.”
The U.S. Court of Appeals for the Second Circuit last Summer ruled unanimously that a 1994 copyright agreement entered into by Elaine Steinbeck, who had received the rights by will, could not be terminated by John Steinbeck’s biological heirs. Elaine Steinbeck died in 2003.
John Steinbeck’s surviving son, Thomas Steinbeck, and his granddaughter, Blake Smyle, contended that in 2004, they served a “notice of termination” that had the effect of ending Elaine Steinbeck’s rights and extinguishing the 1994 Penguin Agreement for the early works of John Steinbeck. Those works included, among others, Cup of Gold, The Pastures of Heaven, To A God Unknown, The Red Pony, Tortilla Flat, In Dubious Battle, Of Mice and Men, The Long Valley, The Grapes of Wrath, The Forgotten Village, Viva Zapata and The Sea of Cortez. Such notices of termination are permitted under a 1976 copyright law, but only for agreements entered into before 1978. John Steinbeck’s original agreement with Penguin dated back to 1938.
However, Elaine Steinbeck’s heirs argued that the notice of termination had no effect because the 1994 Agreement negotiated by Elaine Steinbeck terminated and superseded the 1938 Agreement. The appeals court agreed, holding that there were “no pre-1978 grants to which the termination rights … could be applied.” The court ordered that judgment be entered against the son and granddaughter. The son and granddaughter then petitioned the Supreme Court to hear their case.
Ms. Kohlmann, in court filings in response to Thomas Steinbeck and Blake Smyle’s petition to the Supreme Court, had argued that the case did not require the Justices’ intervention. “Thom and Blake’s efforts to use the termination provisions to override Steinbeck’s will and seize copyright ownership from other members of the Steinbeck family are far afield from the central goals Congress had in mind when it created the statutory termination provisions,” she told the court in response to the son and granddaughter’s appeal.
The Jenner & Block brief also told the Court that there is no disagreement between multiple federal appeals courts on the legal issue at the heart of this case, nor is there any question of interpretation of the federal law at play. “There is no circuit split for this court to resolve—just different cases reaching different outcomes by applying the same legal rule to different underlying contracts.”
In addition, the Estate of Elaine Steinbeck told the Supreme Court that it ultimately did not need to wade into this factual dispute regarding a particular intra-family contract. “This is fundamentally a fact-bound question concerning a particular contract, not a broad question of statutory interpretation warranting this Court’s review,” the Estate told the Court.
The Firm’s 2nd Circuit victory in this case was widely covered in major news publications including the Wall Street Journal, New York Times, New York Law Journal, AmLaw Daily, BBC News, Forbes, L.A. Times, Bloomberg, IP Law 360, Intellectual Property Today, MSNBC, Reuters and USA Today.
In addition to Ms. Kohlmann, Jenner & Block Partner William M. Hohengarten and Associate Joshua A. Block worked on this matter.
In a related decision this year, the U.S. District Court for the Southern District of New York dismissed on March 31 all remaining claims in the longstanding dispute between the Estate of Elaine Steinbeck and the author’s biological heirs. In addition to the claims before the U.S. Supreme Court, the son and granddaughter had sued the Estate of Ms. Steinbeck, The Steinbeck Heritage Foundation and several other beneficiaries asserting a variety of different claims related not only to Steinbeck’s Early Works, but also to his Late Works, which include among others, The Moon Is Down, Bombs Away, Cannery Row, The Pearl, The Wayward Bus, East of Eden, Sweet Thursday, Once There Was A War, The Winter of Our Discontent, and Travels With Charley. John Steinbeck’s biological heirs claimed that the Defendants had breached their fiduciary duties purportedly owed to Mr. Steinbeck’s son and granddaughter, engaged in tortious conduct and committed fraud. On March 31, 2009, the court dismissed the case in its entirety. While the son and granddaughter have filed notice that they will appeal this decision, the copyrights to John Steinbeck’s literary works are not affected by the outcome of any appeal.
Practice Groups:
Appellate and Supreme Court Practice
Creative Content
Litigation Department
5/5/2009
Sullivan, Valukas, Feldman Honored at the Best Lawyers 25th Anniversary
Jenner & Block Partners Thomas P. Sullivan, Anton R. Valukas and James H. Feldman were honored at the Best Lawyers 25th Anniversary Event in Atlanta, April 23 - 25, 2009. The event celebrated the careers of the 1,397 lawyers who have been listed in the publication since its inception in 1983, honoring the attorneys’ work and dedication to their profession and communities.
“We are so pleased to honor James H. Feldman, Thomas P. Sullivan and Anton R. Valukas as three of the lawyers who have been with us from the start,” said Steven Naifeh, President and founder of Best Lawyers, in a statement, adding that the honorees “contributed in an exceptional way to the legal profession,” and “played important civil roles in their communities.”
Mr. Sullivan, a member of the Firm’s Litigation Department, is a former U.S. Attorney for the Northern District of Illinois and has written and spoken extensively on civil and criminal trials and appeals and criminal justice reform. Mr. Sullivan has practiced law for over 50 years and continues to represent several major companies in civil suits and serve as an arbitrator in other matters.
Mr. Valukas is the Chairman of the Firm and is a member of the Firm’s Litigation Department. A former United States Attorney, he specializes in major civil and white collar criminal litigation, representing individuals and leading corporations in contested proceedings throughout the nation. He is a Fellow of the American College of Trial Lawyers and serves as a member of the Judicial Conference Advisory Committee on Civil Rules.
Mr. Feldman is a member of the Firm's Litigation Department and Chair of the Firm’s Family Law Practice. A family law practitioner at Jenner & Block for more than thirty years, he is a Certified Fellow of the American Academy of Matrimonial Lawyers and a Fellow of the Collaborative Law Institute of Illinois.
Published annually, The Best Lawyers in America listing is the oldest lawyer-rating publication in the United States. The listing is based on detailed evaluations of lawyers by leading attorneys throughout the country who were given the opportunity to cast votes on the legal abilities of other lawyers in their respective practice areas. The guide includes attorneys in 78 specialties, covering all 50 states and Washington, DC.
Practice Groups:
Family Law
Litigation Department
4/22/2009
Jenner & Block Secures Landmark Immigration Law Win Before U.S. Supreme Court
In a landmark ruling, the U.S. Supreme Court today clarified an important aspect of immigration law that affects thousands of individuals seeking asylum in the U.S. after fleeing persecution abroad. The 7-2 ruling paves the way for Jenner & Block pro bono client Jean Marc Nken to continue the appeal of his deportation to Cameroon, where Mr. Nken fled after being detained, interrogated, and beaten for his advocacy for free elections. The case was argued on January 21, 2009 by Jenner & Block Associate Lindsay C. Harrison, who is representing Mr. Nken on a pro bono basis. The case was the first argument for Ms. Harrison in the U.S. Supreme Court or in any court.
The Court ruled that asylum applicants in the U.S. who are appealing an order of removal by the Board of Immigration Appeals in federal court should not be deported while their appeal is pending if they have a likelihood of success in their appeal and would suffer harm if deported. Traditional stay factors should govern a court of appeals’ authority to stay an alien’s removal pending judicial review, the Justices said. The Court rejected the Government's position that asylum-seekers should almost always be deported pending appeal, stating: “We agree with petitioner that an alien need not satisfy the demanding standard of s1252(f)(2) when asking a court of appeals to stay removal pending judicial review.” Nken v. Holder (08-1813)
“Today’s decision can literally mean the difference between life and death for my client and other asylum seekers,” said Ms. Harrison after today’s ruling. “This decision will give my client a chance to appeal his deportation before the Fourth Circuit, and brings him one step closer to securing permanent safety from persecution in Cameroon, and to keeping him in the U.S. with his wife and baby, both of whom are U.S. citizens.”
Michael B. DeSanctis, Managing Partner of Jenner & Block's Washington, DC office, said, “This is a tremendous victory for immigration rights, for Mr. Nken, and for Lindsay. Lindsay had the courage to take this issue to the Court and, in doing so, has not only prevailed for her client, but has advanced the law for the entire nation. I know I speak for all of my colleagues in saying that I am just so proud of what Lindsay has accomplished here in continuing Jenner & Block's proud tradition at the Supreme Court.”
Mr. Nken, a pro-democracy advocate in Cameroon, applied for asylum in the United States in 2001. He fled Cameroon because the government detained, interrogated, and beat him for his advocacy for free elections. After several years of court and administrative proceedings, his motion to reopen his asylum case was denied by the Board of Immigration Appeals earlier this year. He sought review in the U.S. Court of Appeals for the Fourth Circuit. The court of appeals, however, declined to issue a stay of his removal while the appeal there was pending, meaning that he could be deported back to Cameroon notwithstanding the grave danger he faces there.
Mr. Nken, represented by Jenner & Block attorneys, then filed an emergency motion in the U.S. Supreme Court, seeking a stay and contending that the standard that the court of appeals had used in denying the stay was incorrect and unjustified by federal immigration law. The Supreme Court granted the application for the stay and scheduled argument on Mr. Nken’s case.
The Jenner & Block attorneys argued that in evaluating Mr. Nken’s application for a stay, the court of appeals should have used the traditional test for granting a stay -- a test that eight other federal appeals courts have applied. Instead, the Firm argued, the court of appeals misapplied a 1996 immigration law to permit a stay only if the immigrant can show “by clear and convincing evidence” that his removal is prohibited by law.
At the oral argument, in response to a question by Chief Justice John Roberts Jr. about whether an asylum-seeker can pursue his case if a stay is not granted and he has been removed from the United States, Ms. Harrison responded that the case “may abate because they are killed, they are put in jail, they are not in a position to come back to this country. And that is why consideration of the equities in this context is so critical.”
The Jenner & Block team in Mr. Nken’s case also includes Partners Ian Heath Gershengorn and Jared O. Freedman, and Associates Julia K. Martinez and Adam G. Unikowsky.
Ms. Harrison said she has long had a particular interest in immigration and asylum cases. Her father came to the United States as an immigrant from the Soviet Union in 1975.
Ms. Harrison is a 2003 graduate of the Harvard Law School. As a summer associate, she was a member of the Firm’s litigation team that obtained reversal of the lower court’s decision in the landmark Supreme Court case of Lawrence v. Texas, in which the Supreme Court held that the Constitution does not permit a state to criminalize private consensual sexual behavior.
Please click here to view the Court's decision.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
4/21/2009
Jenner & Block Wins Political Asylum for Haitian Journalist
Jenner & Block Associate Wade A. Thomson and Project Assistant Lauren Prather, under the direction of Partner Charlotte L. Wager, recently secured asylum for a Haitian journalist and his wife who were repeatedly attacked and threatened with death because of the client's journalistic independence.
The client, who worked as a radio journalist in Haiti, was granted asylum by the Chicago Asylum Office after the submission of an affirmative application and an interview with a representative of the Department of Homeland Security. Mr. Thomson and Ms. Prather provided evidence of the numerous politically-motivated attacks and threats against the Firm's client. Among other things, partisan militants shot at the client while he was covering a demonstration, beat him with batons and gun-butts as he left the radio station, and put his name on a death list calling for his decapitation.
Mr. Thomson prepared the client’s application, which included a detailed memorandum explaining the complex political situation in Haiti and assembled extensive supporting documentation. He also prepared the client for his interview that compelled the Department of Homeland Security to grant asylum, which only happens at the interview stage in a small percentage of cases. In addition, Mr. Thomson obtained a copy of the death list with the client’s name and located an expert who worked with the U.N. in Haiti who was able to verify the authenticity of the list. Ms. Prather provided the necessary French translations and assisted in locating documentary support for the client’s application.
Mr. Thomson and Ms. Prather’s efforts were not limited to legal work, as they were able to locate affordable housing for the client and his wife who were expecting a child. The client and his wife later asked Mr. Thomson and Ms. Prather to be god parents to their daughter who was born in October 2008.
Practice Groups:
Litigation Department
4/20/2009
Chicago Urban League Lawsuit Challenging School Funding Proceeds
A lawsuit filed by the Chicago Urban League against the State of Illinois and the Illinois State Board of Education challenging the state’s funding system survived a key legal hurdle after a Cook County judge denied in part the Defendant’s motion to dismiss, and ruled that the Plaintiffs’ stated a valid claim of discriminatory disparate impact under the Illinois Civil Rights Act of 2003. A Jenner & Block team led by Partner Lisa T. Scruggs is serving as pro bono counsel for the Chicago Urban League in this lawsuit.
The lawsuit challenges the State’s method for raising and distributing education funds to local school districts and the Illinois State Board of Education’s implementation of the system. The Urban League asserts that the State’s public school funding scheme disparately impacts racial and ethnic minority students who attend Majority-Minority Districts.
Although two earlier funding suits never made it past a motion to dismiss, Judge Martin S. Agran found the Illinois Civil Rights Act provided the legal footing to proceed. "This is important and historic because we passed a milestone no other lawsuit in Illinois has been able to pass," Cheryle Jackson, the Urban League's president and chief executive officer, told the Chicago Tribune.
The Court’s opinion highlights some significant facts from the Firm’s Complaint concerning the State’s school funding system including:
- “Illinois ranks 49th in the nation in the size of per-pupil funding disparity between its lowest and highest poverty districts.”
- The per pupil funding in the top five wealthiest districts ranged from $1.2 to $1.8 million, while the per pupil funding ranged from $7,000 to just over $24,000 in the five districts with the lowest property wealth.
- The “disparity exists despite the fact that low property wealth areas generally pay much higher property tax rates than areas with higher property wealth, and yet they still generate less local funding for their schools.”
“The way the state funds our schools is really disheartening,” said Ms. Scruggs in The New York Times, “but now there is reason for optimism.”
Although four counts of the suit were dismissed, the Court expressly rejected Defendants’ arguments that existing precedent precluded Plaintiffs from seeking relief under the Illinois Civil Rights Act.
In addition to Ms. Scruggs, Partners David J. Bradford, Robert L. Graham, Gail H. Morse, Associates Herbert C. Brown, Brian L. Dougherty, Grace S. Ho, Stephanie Jean-Jacques, Shannon J. Jones, Kyle A. Palazzolo, Sandi J. Toll, and Shyni R. Varghese and paralegal Jessica Merkouris are part of the Firm’s team working this matter. Of Counsel Benjamin K. Miller has also made valuable contributions to the case. News of this victory has been widely reported in the media including numerous articles in the Chicago Sun-Times and Chicago Tribune as well as The New York Times, ABC-7, and NPR.
Practice Groups:
Litigation Department
4/15/2009
Kohlmann Secures Federal Court Victory for Steinbeck’s Heirs
Jenner & Block Partner Susan J. Kohlmann and Associate Joshua A. Block recently secured an important victory for the Estate of novelist John Steinbeck’s widow, Elaine Steinbeck, when the U.S. District Court for the Southern District of New York dismissed all remaining claims in a longstanding dispute between Ms. Steinbeck and the author’s biological heirs. The ruling potentially puts to rest the decades-long legal battle over the rights to many of John Steinbeck’s best-known early works, including Of Mice and Men, The Grapes of Wrath, and Tortilla Flat.
When John Steinbeck died in 1968, he bequeathed no copyright or trademark rights to his biological sons, John IV and Thomas, and instead passed all of his intellectual property rights to his widow through the residual clause of his will. The author’s surviving son, Thomas, and his granddaughter, Blake Smyle, initiated this litigation after Ms. Steinbeck’s death in 2003, claiming that the Estate of Ms. Steinbeck and several other beneficiaries had breached their fiduciary duties purportedly owed to plaintiffs, engaged in tortious conduct and committed fraud.
On March 31, 2009, the court dismissed the case in its entirety. “There are no material issues of fact in dispute, and in opposition to defendants’ motion, plaintiffs’ have failed to raise any triable issues for trial,” said the ruling. “Defendants have also shown that they are entitled to judgment as a matter of law.”
The ruling comes on the heels of an August 2008 decision by the U.S. Court of Appeals for the Second Circuit that unanimously held that a 1994 copyright agreement between Ms. Steinbeck and the author’s longtime publisher, Penguin Group, could not be terminated. Thomas Steinbeck and Ms. Smyle are currently seeking an appeal of that decision before the U.S. Supreme Court.
“The Estate of Elaine Steinbeck and its heirs are delighted with the court's ruling,” said Ms. Kohlmann. “The court's ruling is another significant validation of the wishes of John Steinbeck related to ownership of his literary works.”
Practice Groups:
Creative Content
Litigation Department
4/8/2009
National Law Journal Recognizes Jenner & Block’s Appellate Practice as One of Nation’s Best
Jenner & Block was recognized by The National Law Journal in the newspaper’s 2009 “Appellate Hot List,” which recognizes 20 law firms “with stellar records in appellate advocacy” that were involved in “the most important appeals of the year,” and firms that possess “an impressive legacy overall.”
In recognizing Jenner & Block, The National Law Journal noted that the Firm argued 21 cases before the U.S. Supreme Court during the last seven years. The newspaper also highlighted three of Jenner & Block’s recent cases:
- Partner David W. DeBruin’s victory before the U.S. Supreme Court in Bridge v. Phoenix Bond & Indemnity Co., which resolved a long standing circuit court split related to RICO claims.
- Partner Susan J. Kohlmann’s win before the Second Circuit in Penguin Group (USA) Inc. v. Steinbeck, in which the court, “vindicated the estate of novelist John Steinbeck's widow, Elaine, in this decades-long legal battle over the rights to many of Steinbeck's best-known early works,” The National Law Journal wrote.
- Partners Paul M. Smith and Katherine A. Fallow’s victory for the video game industry before the Eight Circuit in Entertainment Software Ass'n v. Swanson, in which the appellate court struck down on First Amendment grounds an attempt to regulate the sale of certain video games based on their content. The newspaper noted that Jenner & Block “has secured similar victories for its video game industry clients in a raft of states.”
“We’re proud of the appellate successes we’ve achieved on behalf of our clients and pleased The National Law Journal has recognized Jenner & Block in this prestigious list,” said Paul M. Smith, Chair of the Firm’s Appellate and Supreme Court Practice. The National Law Journal noted that Mr. Smith is a “seasoned Supreme Court litigator,” having argued 13 times before the Court.
“This recognition is a testament to the ongoing breadth and depth of our Litigation Department and highlights the unique strengths of our Appellate Practice,” said Susan C. Levy, Jenner & Block’s Managing Partner.
The cases argued by the Firm have long been among the most significant. Jenner & Block’s landmark victories have included Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. (2005) (addressing secondary liability of Internet file-sharing services), Wiggins v. Smith (2003) (addressing standards for effective counsel in the death penalty sentencing phase), Lawrence v. Texas (2003) (holding all sodomy laws unconstitutional), and even Witherspoon v. Illinois (1968) (holding that it is unconstitutional in a murder trial to exclude all jurors who object to the death penalty).
In January 2008, the Firm presented arguments in the Supreme Court twice within three days in two high-visibility cases — Baze v. Rees, involving the constitutionality of the lethal injection execution method, and Crawford v. Marion County Election Board, involving the constitutionality of the Indiana voter ID law.
Already in 2009, the Firm has had two arguments in the Supreme Court. One was Nken v. Holder, argued by Associate Lindsay C. Harrison on January 21. That case will resolve a circuit conflict over standards for granting stays of orders of deportation pending appeal. The other was Montejo v. Louisiana, involving the Sixth Amendment right to counsel.
The Firm submitted over twenty 2008-09 appellate victories to The National Law Journal to consider for this award, representing a wide range of significant matters on behalf of Firm clients in federal and state courts of appeals across the country.
For further information about these cases and Jenner & Block’s Appellate and Supreme Court Practice, please visit http://www.jenner.com/appellate.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
3/25/2009
Jenner & Block Successfully Defends Pro Bono Client’s First Amendment Rights
In a victory for a Jenner & Block pro bono client, a federal appeals court revived the client’s civil rights lawsuit that claimed he was harassed in retaliation for providing an affidavit and information in a wrongful-death lawsuit against prison officials.
U.S. District Judge John C. Shabaz of the Western District of Wisconsin previously dismissed the retaliation claim brought by the Firm’s client, inmate Jimmy D. Bridges, under the argument that the client could not pursue a First Amendment claim because the speech that triggered the alleged retaliation did not involve “a matter of public concern.”
The U.S. Court of Appeals for the Seventh Circuit reversed the lower court’s decision, holding that protecting prisoners from retaliation only for statements made about matters of public concern “would be to remove protection from nearly everything a prisoner says.”
The three-member panel of the court held that the appropriate test to apply to determining whether a prisoner’s speech is protected by the First Amendment is set out in the 1987 U.S. Supreme Court case Turner v. Safley, in which “a prison regulation that affects inmates’ constitutional rights is valid if it is reasonably related to legitimate penological interests.”
The 7th Circuit panel concluded that Bridges had adequately stated a claim that he engaged in conduct protected by the First Amendment. “Prisons have an interest in keeping the inmates as safe and secure as possible while imprisoned, and truthful speech that describes possible abuses can actually be quite consistent with that objective,” said Judge John Daniel Tinder in the court decision.
Associate Alexander Rozenblat argued the case before the 7th Circuit on behalf of the inmate.
Practice Groups:
Litigation Department
3/23/2009
Washington, DC Super Lawyers Recognizes Five Jenner & Block Attorneys
Five Jenner & Block Partners in the Washington, DC office were recently named Washington, DC Super Lawyers in its annual guide to the “top 5 percent of attorneys.”
The 2009 honorees are:
• Larry P. Ellsworth -- Securities Litigation
• Matthew L. Jacobs -- Insurance Coverage
• Lorelie S. Masters -- Insurance Coverage
• Thomas C. Newkirk -- Securities Litigation
• Paul M. Smith -- Appellate
Mr. Smith was also listed in the "Top 100," composed of the lawyers in the Washington, DC area who received the 100 highest point totals in the Super Lawyers review and research process.
Published in the March 2009 issue of Washington, DC Super Lawyers magazine, the list recognizes attorneys through a comprehensive, peer-reviewed based evaluation process, which includes surveying thousands of attorneys and asking them to nominate the best attorneys they had personally observed in action. Nominees were scored based on the number of votes they received, with more weight given to votes from outside their own firm.
In addition, former partners Thomas J. Perrelli and Donald B. Verrilli, Jr., who recently left the Firm to join senior level positions within the U.S. Department of Justice, were also honored.
Practice Groups:
Appellate and Supreme Court Practice
Insurance Litigation and Counseling
Securities Litigation
Litigation Department
3/16/2009
Former DOJ Deputy Assistant AG Jessie K. Liu Returns to Jenner & Block’s Litigation Department
Former Department of Justice attorney and federal prosecutor Jessie K. Liu has joined Jenner & Block as a partner in its Washington, DC office. Ms. Liu, who began her career at Jenner & Block and was most recently Deputy Assistant Attorney General in the DOJ’s Civil Rights Division, brings significant trial, appellate and leadership experience to the Firm’s Litigation Department and its White Collar Criminal Defense & Investigations Practice.
“We’re delighted that Jessie is returning to Jenner & Block. Our firm has a long and proud tradition of public service, and as being a place where former government attorneys flourish after returning to the private sector,” said Susan C. Levy, Jenner & Block’s Managing Partner. “Jessie’s skills and experience in multiple leadership roles within the government will be a tremendous asset to our clients.”
As Deputy Assistant Attorney General, Ms. Liu supervised the Division’s Appellate, Employment Litigation, and Housing and Civil Enforcement Sections, and oversaw the Department of Justice’s enforcement of a wide variety of anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964; the Fair Housing Act; the Equal Credit Opportunity Act; the Uniformed Services Employment and Reemployment Rights Act; and the Servicemembers Civil Relief Act.
Prior to joining the Civil Rights Division, Ms. Liu served as Deputy Chief of Staff in the National Security Division and as Counsel to the Deputy Attorney General for national security affairs. In these positions, she advised the Assistant Attorney General for National Security and the Deputy Attorney General on a wide range of issues, including economic and trade sanctions, export controls, and national security-related civil litigation. In addition, she did significant work related to the Committee on Foreign Investment in the United States (CFIUS), analyzing and advising Department officials on the national security implications of scores of acquisitions of American businesses by foreign companies.
Earlier in her career, as an Assistant United States Attorney in the District of Columbia, Ms. Liu tried dozens of cases and conducted grand jury, pre-trial, sentencing, and post-sentencing proceedings in hundreds of other matters. Prior to becoming a federal prosecutor, Ms. Liu was an associate at Jenner & Block.
“I’m thrilled to rejoin Jenner & Block,” said Ms. Liu. “The values and exceptional devotion to client service that first drew me here after law school still distinguish Jenner & Block, and I’m excited to come back and contribute the skills and experience I acquired in government service.”
Ms. Liu joins 16 other former federal prosecutors in Jenner & Block’s Litigation Department, as well as six partners in the DC office who are former SEC or DOJ senior-level attorneys, two partners who held high ranking positions in the FCC, four partners who are former DC public defenders, and a partner who is the former Deputy Staff Director and General Counsel for the U.S. Senate Judiciary Committee. Five Jenner & Block attorneys recently joined the Obama Administration’s Department of Justice in high level positions, including Thomas J. Perrelli, who is Associate Attorney General, the third ranking position in the DOJ, and Donald B. Verrilli, Jr., who is Associate Deputy Attorney General.
Ms. Liu graduated from Harvard College, summa cum laude, Phi Beta Kappa, in 1995. She received her J.D. in 1998 from Yale Law School, where she was an editor of the Yale Law Journal. She is a member of the bar of the United States Supreme Court, the Texas and District of Columbia bars, and the bars of numerous federal courts. Ms. Liu is a member of the Edward Bennett Williams Inn of Court. She also serves on a hearing committee of the District of Columbia Bar’s Board on Professional Responsibility.
Practice Groups:
Litigation Department
White Collar Defense and Investigations
Related Document(s):
Please click here to view the Law 360 article on Ms. Liu Joining the Firm.
3/10/2009
Jenner & Block Secures Dismissal of Liability Claims Against Dow
In a victory for Jenner & Block client The Dow Chemical Company, a federal court in Minnesota recently dismissed strict liability, product liability and breach of contract claims that had alleged Dow and another company supplied a chemical that contaminated residential properties.
According to a report in Law 360, the U.S. District Court for the District of Minnesota granted the Firm’s motion for summary judgment after the residents admitted they could not prove Dow made or sold the pentachlorophenol used in the wood treatment process at a Superfund site in Minnesota. The court also dismissed cross-claims against Dow by one of the owners of the Minnesota site after the owner admitted it could not prove that Dow manufactured or sold any of the pentachlorophenol used at the site.
The Firm's team representing Dow was led by Partner Lise T. Spacapan and included Partner Gabrielle Sigel, Associates Stacy S. Jakobe, Katherine M. Rahill, Jill M. Hutchison and Paralegal James Wall. The case is Bennett et al. v. International Paper Co. et al.
Practice Groups:
Litigation Department
Products Liability and Mass Tort Defense
3/5/2009
Harris Featured in February 2009 issue of Illinois Super Lawyers
Jenner & Block Partner Philip L. Harris was featured in the February 2009 issue of Illinois Super Lawyers in an article titled, “Q&A with Philip Harris.” The article discusses Mr. Harris’ many inspirations that have guided and shaped his career in law.
In particular, the article examines Mr. Harris’ early interest in product-related litigation, beginning with torts in law school, and his professional success in the practice. The national and regional trial counsel for General Motors Corporation, Mr. Harris says that product-related litigation combined his interest in medicine, stemming from his father’s occupation as a doctor, with an interest in business. The article also discusses one of Mr. Harris’ most memorable cases involving a major automotive manufacturer, his thoughts on the changing practice of law, and his well-known March 2007 Chicago Lawyer article titled, “Confronting Race.”
Mr. Harris is a member of the Firm’s Litigation Department and its Business Litigation, Products Liability and Mass Tort Defense and Class Action Litigation Practices. He is also a member of the Firm's Management Committee. Mr. Harris is a Fellow of The Aspen Institute’s Henry Crown Leadership Program, Litigation Counsel of America and Leadership Greater Chicago, and a Trustee of Northwestern University and the Chicago Zoological Society.
Please click here to view article.
Practice Groups:
Litigation Department
Products Liability and Mass Tort Defense
3/3/2009
Firm Secures Major Telecommunications Win in DC Circuit
In a major victory for Jenner & Block client Comcast, the U.S. Court of Appeals for the DC Circuit unanimously upheld an order by the Federal Communications Commission barring Verizon Communications from using its competitors’ proprietary information in efforts to retain defecting customers.
According to the court’s opinion, when phone customers want to switch cable carriers but maintain their existing phone numbers, the cable carriers must begin a process called a local service request, which alerts the outgoing provider of an imminent customer defection. Comcast and two other cable companies had alleged that once Verizon was alerted through this process of a customer’s impending departure, it would offer the customer incentives to stay with Verizon, in violation of a Telecommunications Act provision restricting the use of other carriers’ proprietary information for marketing purposes.
The Federal Communications Commission last year issued an opinion agreeing that Verizon’s actions violated the Telecommunications Act, and ordered Verizon to cease and desist from its retention marketing efforts. Verizon challenged the order in the DC Circuit, and on February 10, 2009, a unanimous three-judge panel upheld the FCC’s decision.
The court agreed with the FCC that the law provided a reasonable restriction on retention marketing that was "designed carefully" to achieve the "substantial interest" of assuring that outgoing carriers maintained a neutral role in transferring a customer’s phone number. The court not only determined that the FCC’s construal was supported by FCC precedent, but also found that Verizon’s arguments “would lead to an anomalous result” in contradiction to the law’s fundamental policy of promoting facilities-based local competition.
"Today's ruling promotes competition by protecting the rights of consumers when they make the switch to a new local telephone provider," Kyle McSlarrow, president of the National Cable and Telecommunications Association, said in a statement. "We are pleased that the court upheld the FCC's decision which permits even greater numbers of consumers to seamlessly join the millions of other Americans who now enjoy the significant savings and benefits provided by our industry's competitive digital voice services."
The Jenner & Block team on this matter included Partner Mark D. Schneider and Associate Luke C. Platzer. Former Jenner & Block Partner Donald B. Verrilli, Jr., who recently joined President Obama’s administration as Associate Deputy Attorney General, argued on behalf of the cable companies in the DC Circuit.
Please click here to view court's opinion.
Practice Groups:
Appellate and Supreme Court Practice
Communications
Litigation Department
2/21/2009
Jenner & Block Secures $431 Million Award for STMicroelectronics in Auction-Rate Securities Suit Against Credit Suisse
STMicroelectronics, N.V. won a record victory on February 12, in an arbitration against Credit Suisse Securities (USA) LLC. ST is one of the world’s largest manufacturers of semiconductors and Credit Suisse Securities is the U.S. subsidiary of Credit Suisse Group, Switzerland's second largest bank.
A FINRA panel ruled that the bank must pay over $431 million to resolve claims that Credit Suisse placed hundreds of millions of dollars of ST's cash into risky unauthorized auction-rate securities, rather than in student-loan securities that ST had instructed the bank to buy. In addition to compensatory damages, FINRA ordered Credit Suisse to pay attorney's fees, consequential damages, and interest through the date of payment of the award, as well as assessed all costs against Credit Suisse.
The arbitration award generated significant media attention, including reports by the Wall Street Journal, New York Times, Bloomberg, and Reuters.
The Jenner & Block team was led by Andrew Weissmann, Co-Chair of Jenner & Block’s White Collar Criminal Defense and Counseling Practice, Matthew W. Alsdorf, Elisabeth Genn, Joseph J. McFadden, David A. Newman, and law clerk Elizabeth A. Edmondson.
Please click here to view the award on the FINRA website.
Practice Groups:
International Arbitration
Litigation Department
White Collar Defense and Investigations
2/20/2009
Illinois Supreme Court Orders Tax Credits for Firm Client Exelon
Jenner & Block successfully represented Exelon Corporation, one of the nation’s largest electric utilities, before the Illinois Supreme Court in a long running dispute concerning millions of dollars in tax credits for the company stemming from its Illinois operations.
In 1995 and 1996, a predecessor company of Exelon bought nearly $3 billion of property in Illinois for the purposes of generating, transmitting and distributing electricity to customers. The company subsequently filed tax returns in which, pursuant to Illinois tax laws, it claimed millions of dollars in investment tax credits on the property, because it was being used in connection with the sale of “tangible consumer good or commodities.”
The Illinois Department of Revenue, relying on existing Illinois Supreme Court authority, denied the tax credit claims on the basis that electricity was not “tangible” as outlined in the tax code. The company appealed, and the Illinois Appellate Court affirmed, again on the basis of existing Illinois Supreme Court precedent.
Jenner & Block petitioned for leave to appeal, and the Illinois Supreme Court took the appeal. In its February 20, 2009 decision, the Supreme Court accepted the analysis in the Firm's brief distinguishing the prior Supreme Court case as dictum, and held that electricity is “tangible” property for the purposes of tax law. The Court directed the Department of Revenue to award Exelon the tax credits retroactively to 1995.
The Jenner & Block team on this matters was led by Partner Barry Levenstam and Benjamin K. Miller, Of Counsel, and assisted by Associate Amy D. Wills, former Associate Amy Trueblood, and paralegal Mary Frances Patston.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
2/20/2009
Jenner & Block Secures 9th Circuit Victory for Video Game Industry Clients
In a victory for Jenner & Block’s video game industry clients, a federal appeals court today affirmed a lower court ruling that bars enforcement of a California law that would have restricted the sale of some video games based on their content. The court found the law to be an unconstitutional violation of the video game makers’ and retailers’ freedom of speech.
Enforcement of the law would have restricted the sale or rental to anyone under the age of 18 of computer and video games that were classified as “violent.” The law would also have required retailers to mark certain video games with a solid white “18” label.
In its decision, the U.S. Court of Appeals for the Ninth Circuit stated that the California law was unconstitutional because it did not meet the strict-scrutiny standard for content-based regulation of speech, and the state did not demonstrate a compelling interest in regulating the video game maker’s freedom of speech.
“The evidence presented by the State does not support the Legislature’s purported interest in preventing psychological or neurological harm. Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology as they relate to the State’s claimed interest,” the court said in its ruling. “Although we do not require the State to demonstrate a ‘scientific certainty,’ the State must come forward with more than it has.”
Since 2006, Jenner & Block has successfully challenged similar laws on constitutional grounds in Illinois, Louisiana, Michigan, Minnesota and Oklahoma. The Firm’s team also successfully challenged laws in Washington State and St. Louis in 2003.
Partners Paul M. Smith and Katherine A. Fallow and Associates Matthew Hellman and Duane Pozza challenged the California law on behalf of the Entertainment Merchants Association and the Entertainment Software Association.
Please click here to view the Ninth Circuit's decision.
Practice Groups:
Appellate and Supreme Court Practice
Creative Content
Litigation Department
Media and First Amendment
2/12/2009
Jackson Appointed as Vice Chair of the District of Columbia Bar Pro Bono Committee
Jenner & Block Partner Eric S. Jackson has been appointed Vice Chair of the District of Columbia Bar Pro Bono Committee.
The primary objective of the 15-member Pro Bono Committee is to oversee the numerous pro bono programs within the DC Pro Bono Program and to encourage pro bono service by all Bar members. Through several subcommittees, the Pro Bono Committee develops and evaluates initiatives that recruit, train and unite volunteer attorneys with low-income clients. According to the DC Bar, the Pro Bono Committee also “identifies areas of unmet legal need and proposes topics for comprehensive study and systematic reform to increase access to the justice system.”
Mr. Jackson is a member of the Firm's Litigation Department and its Intellectual Property and Labor and Employment Practices. He has extensive experience in litigating a wide range of complex patent, business and employment discrimination cases. Mr. Jackson is a Board Member for the Stanford Black Alumni Association of Washington, D.C. as well as Past President of the Charlotte E. Ray American Inn of Court.
Practice Groups:
Intellectual Property
Labor and Employment
Litigation Department
2/9/2009
Settlement in Consolidated Industries Bankruptcy Paves Way For Funds to Reach Homeowners
For over a decade, tens of thousands of homeowners, developers, and intermediaries who had purchased defective and potentially unsafe furnaces manufactured by the now bankrupt Consolidated Industries Corp. have been wondering whether they would ever receive funds from the company to recoup their repair and replacement expenses.
On Friday, those claimants, as well as other creditors, moved a step closer to receiving some of those funds because of a settlement that ends the long running dispute between the Chapter 7 Bankruptcy Trustee of Consolidated, Daniel Freeland, against Enodis Corporation. Jenner & Block has represented Mr. Freeland since 2000 to assist him in prosecuting claims against the former owners of Consolidated, who had taken in excess of $38 million from the company, nearly all of its capital, in fraudulent transfers to Enodis at a time when Consolidated was insolvent and facing significant exposure for warranty, products liability and other claims.
Under the terms of the settlement, Enodis will pay the Trustee $69.5 million plus 5% interest on the settlement amount until it is paid and release claims against the bankruptcy estate that it asserted and that it bought from other creditors totaling over $20 million. The settlement is subject to approval by the United States Bankruptcy Court for the Northern District of Indiana, which is hoped will occur by late March.
In May 2008, the court approved an over $50 million settlement of the 1998 class action lawsuit between the Trustee and a nation-wide class of consumers who had purchased defective Consolidated. Some of the funds from Friday’s settlement should go toward the class action settlement. Consolidated first filed for Chapter 11 bankruptcy in May 1998, and it was converted to a Chapter 7 bankruptcy in August 2000.
In 2004, the Bankruptcy Court entered a judgment in favor of the Trustee on his fraudulent transfer claims, ruling that Consolidated Industries had made actual fraudulent transfers to Enodis Corporation. The fraudulent transfers were conducted involving an unusual system of “dividend notes” that declared dividends in excess of the company’s value with high interest payments tied to the company’s centralized cash management system.
After multiple appeals by Enodis, in September 2008, the Seventh Circuit affirmed most of the bankruptcy court's judgment. The appeals court also remanded the case for a number of issues, including a ruling on the Trustee’s alter ego claims, which he had lost on jurisdictional grounds in the Bankruptcy Court, but were reinstated by the Seventh Circuit.
In another appeal in 2005, Jenner & Block obtained a favorable ruling before the Seventh Circuit when it dismissed an appeal by Enodis Corporation that sought to force the Trustee to settle an $8 million personal injury suit in Alabama under terms that were objectionable to the Trustee and creditors.
The case was tried by Jenner & Block Partners Joel T. Pelz and Catherine L. Steege, with assistance from Partner Ronald R. Peterson and Associate Christie Childers. Partner Barry Levenstam and Associate Andrew J. Olejnik assisted with the appeals. Associates David H. Hixson and Landon S. Raiford have worked on the post-remand proceedings. Partner Carter H. Klein assisted with documenting the settlement and the letters of credit that secured the original judgment and will pay most of the settlement amount.
Practice Groups:
Litigation Department
2/9/2009
Jenner & Block Partners Recognized Among Top 100 Leading Business Lawyers in Illinois
Nine Jenner & Block attorneys were recognized by Leading Lawyers Network among the “Top 100 Leading Business Lawyers in Illinois.”
Partners Lee A. Freeman, Jr., E. Lynn Grayson, Craig C. Martin, Harry J. Roper, Charles B. Sklarsky, Jerold S. Solovy, Thomas P. Sullivan, Barry Sullivan, and Anton R. Valukas were named to the list.
Messrs. Solovy and Valukas were also recognized among the “Top Ten Leading Business Lawyers in Illinois” and the “Top Ten Leading Business Litigators in Illinois.” Jenner & Block is the only law firm that had two attorneys included on these lists.
In addition, Ms. Grayson was recognized among the “Top Ten Leading Women Business Lawyers in Illinois.”
The listings, featured in the January 2009 Leading Lawyers Network Magazine—Business Edition, were determined based on recommendations by the attorneys’ professional peers. The selection process included a verification of the lawyers’ ethical standings and a final review by the 332-member Leading Lawyers Network Advisory Board, comprised of those Leading Lawyers who received the highest number of votes for their area(s) of law and/or their region of the state.
Leading Lawyers Network Magazine is published four times a year by the Law Bulletin Publishing Company. The magazine’s January 2009 Business Edition also featured full-length profiles of Mr. Martin, Partner Terri L. Mascherin and Partner Lise T. Spacapan.
Click here to view the Leading Business Lawyers Lists.
Click here to view Mr. Martin’s Leading Lawyers profile.
Click here to view Ms. Mascherin’s Leading Lawyers profile.
Click here to view Ms. Spacapan’s Leading Lawyers profile.
Practice Groups:
Antitrust Litigation
Appellate and Supreme Court Practice
Environmental, Energy and Natural Resources Law
Intellectual Property
Litigation Department
White Collar Defense and Investigations
2/4/2009
Supreme Court Veteran and Renowned Litigator Donald Verrilli to Join DOJ as Associate Deputy Attorney General
Jenner & Block Partner Donald B. Verrilli, Jr., recognized as one of the nation’s preeminent litigators and Co-Chair of the Firm’s Appellate & Supreme Court practice, will be joining the Department of Justice as Associate Deputy Attorney General.
“Jenner & Block has always been a place where the best ideals of our profession are put into action,” Mr. Verrilli said. “I am very excited to have the opportunity for public service at this important moment in our history, but I will deeply miss my extraordinary colleagues at Jenner & Block and my wonderful clients.”
“Jenner & Block has a long tradition of public service by our attorneys and we’re thrilled that Don is joining the DOJ at this important time in our country’s history,” said Managing Partner Susan C. Levy. “We wish him the very best in his new position.”
In addition to Mr. Verrilli, Jenner & Block Partner Thomas J. Perrelli, Managing Partner of the DC office, has been selected by President Obama as his choice to be Associate Attorney General, the third-ranking official in the U.S. Department of Justice. In this role, Mr. Perrelli will oversee all civil litigation at the Department. Brian Hauck, a recently elevated Litigation partner, will also be Counsel to the Associate Attorney General. Ginger Anders, an associate, will be joining the DOJ as an Assistant to the Solicitor General.
Mr. Verrilli, who is also a longtime member of Jenner & Block’s governing Policy Committee and is Chair of the Firm’s Diversity Committee, has argued numerous cases before the United States Supreme Court, including Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., where he successfully argued that companies that build businesses on the illegal distribution of copyrighted material are liable for copyright infringement. He also successfully argued General Dynamics Land Systems v. Cline, a case in which the Court ruled that the Age Discrimination in Employment Act does not authorize “reverse discrimination” suits, FCC v. Next Wave Personal Communications, a case in which the Court returned to NextWave billions of dollars worth of wireless phone spectrum licenses that the FCC had sought to repossess from NextWave while it was in bankruptcy, and Verizon Communications v. FCC, the most important case arising out of the Telecommunications Act of 1996.
Mr. Verrilli has argued numerous cases before state and federal appellate courts throughout the country. In 2008, Mr. Verrilli successfully represented L-3 Communications before the U.S. Court of Appeals for the Second Circuit which unanimously reversed a $126 million verdict against L-3 Communications Corp.
Mr. Verrilli has also led the Jenner & Block team that is pursuing a $1 billion copyright case on behalf of Viacom Inc. against Google and YouTube, alleging massive violations of Viacom's copyrighted motion pictures and television shows.
Mr. Verrilli has also maintained an active pro bono practice throughout his career, and has been a longtime leader in Jenner & Block’s well-regarded pro bono program. He successfully defended the right to effective counsel in Wiggins v. Smith before the U.S. Supreme Court, and he has argued numerous times before the Court in pro bono matters.
Mr. Verrilli has been repeatedly recognized by Chambers, Best Lawyers, and Super Lawyers as among the top attorneys in the country. He was honored for his contributions to the equal justice community in 2006 with The Equal Justice Award from the Southern Center for Human Rights. In 2004, Mr. Verrilli received The Arthur von Briesen Award from the National Legal Aid and Defender Association for his volunteer contributions to the equal justice community.
Mr. Verrilli received his J.D. with honors from Columbia University in 1983, where he was a James Kent Scholar and served as editor-in-chief of the Columbia Law Review. He received his B.A. cum laude with a Distinction in History from Yale University in 1979. He clerked for Associate Justice William J. Brennan, Jr., of the United States Supreme Court, and Judge J. Skelly Wright of the United States Court of Appeals for the District of Columbia Circuit.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
1/27/2009
Firm Associate Argues in US Supreme Court on Behalf of Pro Bono Immigration Client
On January 21, 2009, Jenner & Block Associate Lindsay C. Harrison presented oral argument in the US Supreme Court on behalf of Jean Marc Nken, a citizen of Cameroon whom the Firm is representing on a pro bono basis in his efforts to obtain asylum in the United States.
Mr. Nken, a pro-democracy advocate in Cameroon, applied for asylum in the United States in 2001. He fled Cameroon because the government detained, interrogated, and beat him for his advocacy for free elections. After several years of court and administrative proceedings, his motion to reopen his asylum case was denied by the Board of Immigration Appeals earlier this year. He sought review in the US Court of Appeals for the Fourth Circuit. The court of appeals, however, declined to issue a stay of his removal while the appeal there was pending, meaning that he could be deported back to Cameroon notwithstanding the grave danger he faces there.
Mr. Nken, represented by Jenner & Block attorneys, then filed an emergency motion in the US Supreme Court, seeking a stay and contending that the standard that the court of appeals had used in denying the stay was incorrect and unjustified by federal immigration law. The Supreme Court granted the application for the stay and scheduled argument on Mr. Nken’s case.
The Jenner & Block attorneys contend that in evaluating Mr. Nken’s application for a stay, the court of appeals should have used the traditional test for granting a stay -- a test that eight other federal appeals courts have applied. Instead, the Firm argues, the court of appeals misapplied a 1996 immigration law to permit a stay only if the immigrant can show “by clear and convincing evidence” that his removal is prohibited by law.
At the oral argument, in response to a question by Chief Justice John Roberts Jr. about whether an asylum-seeker can pursue his case if a stay is not granted and he has been removed from the United States, Ms. Harrison responded that the case "may abate because they are killed, they are put in jail, they are not in a position to come back to this country. And that is why consideration of the equities in this context is so critical."
At the end of the argument, the Chief Justice expressed thanks to Ms. Harrison and to Acting Solicitor General Edwin S. Kneedler, who argued for the US Government, saying that the Court "had entered a very expedited briefing and arguments schedule in this case that unfortunately fell over the holiday season, and we appreciate very much that this must have imposed a burden on you and your colleagues." The case was the first argument for Ms. Harrison in the US Supreme Court or in any court.
The Jenner & Block team in Mr. Nken's case also includes Partners Donald B. Verrilli, Jr., Ian Heath Gershengorn, and Jared O. Freedman, Associates Julia K. Martinez and Adam G. Unikowsky, and Senior Paralegal Cheryl Olson. Other attorneys who assisted in preparation for oral argument were Partners Paul M. Smith, William M. Hohengarten, Mark D. Schneider, Michael B. DeSanctis, and David W. DeBruin, Associate Matthew S. Hellman, and former Associate Ginger D. Anders.
“This case can literally mean life or death for my client,” Ms. Harrison said. “He was severely beaten in Cameroon for engaging in nonviolent political protests. The standard imposed by the Fourth Circuit for granting a stay is contrary to federal law. If it is allowed to stand, people like Mr. Nken can be sent back to their home countries before their case is even heard by an appeals court.”
Ms. Harrison said she has long had a particular interest in immigration and asylum cases. Her father came to the United States as an immigrant from the Soviet Union in 1975.
Ms. Harrison is a 2003 graduate of the Harvard Law School. As a summer associate, she was a member of the Firm’s litigation team that obtained reversal of the lower court’s decision in the landmark Supreme Court case of Lawrence v. Texas, in which the Supreme Court held that the Constitution does not permit a state to criminalize private consensual sexual behavior.
Please click here to view a copy of the Firm's merits brief.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
1/23/2009
Firm Obtains Victory in Pro Bono Criminal Trial
Jenner & Block Partners Reginald J. Hill and Joseph A. Saltiel successfully defended two pro bono clients in a criminal trial in the Circuit Court of Cook County.
The Firm’s clients, participants in the Chicago Recovery Alliance (CRA) research program, had been charged with the illegal possession of drug paraphernalia. The CRA research program evaluates the public health effects of “harm reduction” with individuals with drug addiction and those living with HIV. As part of its harm reduction outreach, the CRA runs a syringe exchange program aimed at reducing the spread of HIV/AIDS, hepatitis, and other diseases through the provision of safe injecting equipment, counseling and other services.
Despite a Chicago Police Department order that recognizes that the law creates an exemption for persons participating in a research program and prohibits the arrest of CRA program participants for possession of hypodermic syringes, the clients were arrested and prosecuted to verdict.
Messrs. Hill and Saltiel worked with Assistant Cook County Public Defender Lisa Dedmond to represent the clients before the court. Mr. Hill delivered the case’s opening statement, and Mr. Saltiel cross-examined the State’s witnesses. Associate Duan Fu provided invaluable research in support of the clients defenses. Based on the attorneys’ opening statement and cross-examinations, the court found in favor of the Firm’s clients and issued a not guilty verdict.
Mr. Hill has provided pro bono representation to CRA and its syringe exchange participants for more than a decade.
Practice Groups:
Litigation Department
1/23/2009
Fischer and Ziegler Obtain Important Pro Bono Criminal Defense Victory
In a significant criminal justice victory, Associate Brian J. Fischer and Partner Richard F. Ziegler helped obtain an appellate court reversal in a criminal contempt conviction of a public defender who had refused to defend his client at a criminal trial on a half-day's notice. The court’s opinion in Ohio v. Brian Jones, Case No. 2008-P-18 (Ohio 11th Dist. Ct. of App.) drew considerably from the arguments presented in the Firm's amicus brief in reinforcing important ethical safeguards in the criminal justice system.
The Firm's amicus brief concerned a public defender in Ohio who was assigned by his office to defend an individual charged with a misdemeanor assault. When the public defender appeared at court the next morning for what he believed would be a routine pre-trial conference, he was told that his client's trial was about to begin.
Despite the public defender’s explanation to the court that he was wholly unprepared to proceed and that his ethical obligations precluded him from continuing and endangering his client's constitutional rights, the court refused the attorney’s motion for a continuance and ordered him to proceed. Upon his refusal, the court held the attorney in criminal contempt, had him taken into custody, and later sentenced him with a fine.
At the request of Fordham Law School's Louis Stein Center for Ethics and Law, Jenner & Block prepared an amicus brief asserting that the attorney’s contempt conviction rested on an improperly narrow understanding of counsels’ ethical duties. Among other things, the brief argued that an attorney has a constitutionally-rooted ethical obligation to prepare and investigate adequately for trial that cannot be extinguished by court order or threat of contempt; the contempt conviction was at odds with the court's obligation to administer and ensure a fair trial; and it is improper to rely on appellate courts to cure foreseen and easily avoidable representation deficiencies. Moreover, it contended that imposing criminal contempt on an attorney in these circumstances risks chilling defense attorneys' discharge of their ethical duties.
Mr. Fischer participated in the oral argument before Ohio’s Eleventh District Court of Appeals, which shortly thereafter reversed the attorney’s contempt conviction.
“Under these circumstances, effective assistance and ethical compliance were impossible as appellant was not permitted sufficient time to conduct a satisfactory investigation as required by Disciplinary Rules 6-101 and 7-101 of the Code of Professional Responsibility, Rule 1.1 of the Ohio Rules of Professional Conduct, and the Sixth Amendment of the United States Constitution,” the court said. “Appellant properly refused to put his client’s constitutional rights at risk by proceeding to trial unprepared.”
In addition to the Fordham Law School's Louis Stein Center for Ethics and Law, amici from across the country joined the Firm’s brief, including: the American Civil Liberties Union of Ohio Foundation; the National Association of Criminal Defense Lawyers; the Hofstra University School of Law's Institute for the Study of Legal Ethics; the Jacob Burns Center for Ethics in the Practice of Law at Cardozo Law School; the Office of the Ohio Public Defender; the Ohio Association of Criminal Defense Lawyers; and the University of Miami School of Law's Center for Ethics and Public Service.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here to view the Firm's amicus brief in this matter.
1/22/2009
Spacapan Featured in 2009 Business Edition of Leading Lawyers Magazine
Jenner & Block Partner Lise T. Spacapan, Co-Chair of the Firm’s Products Liability and Mass Tort Defense Practice, and her husband, Edward Spacapan, Jr., a partner at Schiff Hardin LLP, are featured in the January 2009 Leading Lawyers Network Magazine—Business Edition. The article discusses how the two “top-notch attorneys” balance the demands of their careers with their dedication to their family.
The article highlights Ms. Spacapan’s passion for representing Fortune 100 companies in complex litigation matters throughout the country and her “uncommon devotion” to providing clients with the highest level of service. Described as “organized,” “results-driven” and “extremely engaging” by her clients and colleagues, the article underscores Ms. Spacapan’s intellectual rigor and professional leadership.
"Lise is a tenacious, determined litigator," said Peter Jennings, an assistant general counsel at Dow Chemical who has worked with Ms. Spacapan for 25 years.
The article notes that Ms. Spacapan has successfully defended the manufacturers of prescription drugs, medical devices, chemicals, automotive products, and industrial products in a range of commercial disputes. From this experience, the article says, she has developed a core understanding of immunology, toxicology, epidemiology, telecommunications engineering, and pharmacology. Ms. Spacapan told Leading Lawyers that she enjoys deconstructing a case’s complex scientific issues and converting technical concepts into propositions meaningful to a judge or jury.
In addition to possessing a successful litigation practice, the article notes that Ms. Spacapan is an active leader in the profession. She is a member of the American Bar Association’s Section of Litigation Product Liability Committee and the Chicago Inn of Court, and was recently named Chair of the 1,300-member Toxic Torts and Environmental Law Committee of DRI, the largest international membership organization of attorneys defending the interests of business and individuals in civil litigation.
“DRI includes the best in-house lawyers as well as the best law firm partners,” Ms. Spacapan told Leading Lawyers. “I hope to be able to lead and facilitate further interaction between these two groups.”
The article notes that in spite of their range of professional commitments, Mr. and Mrs. Spacapan prioritize spending time with their children and each other. Lorna Propes, a close friend of Ms. Spacapan, told Leading Lawyers that Mr. and Mrs. Spacapan “have always been very proactive and dedicated parents in high-pressure and high-anxiety careers.”
"It's been really great, in the sense that we both went to law school, we have always been in big firms so we understand what it’s like to practice in that environment,” said Ms. Spacapan. “We’re both equally supportive of our family and our work."
Practice Groups:
Litigation Department
Products Liability and Mass Tort Defense
Related Document(s):
Click here to view the Leading Lawyers article.
1/22/2009
Mascherin Featured in 2009 Business Edition of Leading Lawyers Magazine
Jenner & Block Partner Terri L. Mascherin and her husband, Thomas W. Abendroth, a partner at Schiff Hardin LLP, are featured together in the January 2009 Leading Lawyers Network Magazine—Business Edition. The article addresses how the attorneys have “enjoyed professional success on a national scale” while prioritizing family and personal commitments.
Emphasizing her “commanding courtroom presence,” passion for client service and professional drive, the article discusses Ms. Mascherin’s nationally-recognized practice as a commercial litigator and counselor.
The article says that Ms. Mascherin, who has practiced with Jenner & Block for nearly 25 years, “had fallen in love with the Firm as a summer associate in litigation, captivated by its commitment to pro bono work and encouragement of young female lawyers.” From her first day as an associate, the article says, she “hit the ground running,” advancing quickly and trying cases as early as her second year.
Ms. Mascherin, the article notes, now maintains a broad commercial litigation practice focused primarily on telecommunications and business litigation. The article stresses that clients like Honeywell International Inc., whom she recently represented in two arbitrations and a federal court case, repeatedly rely on Ms. Mascherin for her excellent judgment and commitment to serving their needs.
“She’ll tell you whether you have a good case or a bad case,” said Jeffrey Neuman, General Counsel of Honeywell Specialty Materials. “Often litigators want to litigate,” he told Leading Lawyers. “Her honesty gives her credibility.”
The article also highlights Ms. Mascherin’s “impressive pro bono track record,” hailing Ms. Mascherin as a “nationally recognized figure for her work representing clients on Death Row.”
“Terri was one of the most outstanding lawyers who ever appeared before me,” said Sheila Murphy, a retired Cook County judge who heard Ms. Mascherin’s most recent pro bono death penalty case, People v. Willie Thompkins. “She gave the same excellent representation to a man who was absolutely impoverished that she gave to global corporate clients. Need I tell you that the Illinois Supreme Court spared her client.”
Robin Maher, executive director of the American Bar Association’s Death Penalty Representation Project, which seeks to match competent lawyers with Death Row inmates, told Leading Lawyers that Mascherin was “instrumental” in recruiting volunteers and fundraising as the project’s chairwoman from 2003 to 2006.
“She really has a passion for justice,” said Ms. Maher. “It’s really made a difference.”
Despite Ms. Mascherin and Mr. Abendroth’s demanding schedules, the article notes that the couple makes nightly family dinners a priority, and they also make time for family vacations and activities.
“These two have acquired their reputations because they’re just so smart,” said Judge Richard J. Sankovitz, the couples’ mutual friend and former colleague of Ms. Mascherin. “With traveling and the rest of their family, they maintain that balance at home,” he said.
Practice Groups:
Litigation Department
Related Document(s):
Click here to view the Leading Lawyers article.
1/22/2009
Martin Featured in 2009 Business Edition of Leading Lawyers Magazine
Jenner & Block Partner Craig C. Martin, Co-Chair of the Firm’s Litigation Department, is featured in the January 2009 Leading Lawyers Network Magazine—Business Edition.
The article discusses Mr. Martin’s path to success as “a boardroom-to-the-courtroom counselor” and his leadership within Jenner & Block and in the profession. Praised by his clients as a “superb litigator” with sound judgment, the article says that Mr. Martin has gained cross-border experience in many disciplines and has built a “multidimensional practice,” which ranges from counseling the C-suite and board members on myriad legal and fiduciary issues to bet-the-company litigation.
George Pain, Vice President and General Counsel of Olin Corporation, told Leading Lawyers that Mr. Martin is one of the few lawyers he has met who can deftly shift from litigation mode to counseling. “I think it is unusual for those two attributes to reside in the same person,” he said, “and that makes him a very strong lawyer for a corporation.”
Mr. Pain told Leading Lawyers that Mr. Martin excels at describing complicated, esoteric legal situations in a straightforward, understandable way. Lester Crown, Chairman of Henry Crown and Company, agreed, noting that Mr. Martin “cuts to the heart of a problem in a practical way.”
"A lot of lawyers attempt to, literally, almost create the problems and make it very mysterious," said Mr. Crown, "[but] he doesn't."
The article notes that Mr. Martin came to Jenner & Block after law school because the Firm embodied his own commitment to civic values, pro bono work, and the community at large. The article says he is now a member of Jenner & Block’s seven member governing Policy Committee, and, as the Litigation Department Co-Chair, is overseeing the development of the Firm’s litigation practices.
In addition, the article discusses Mr. Martin’s dedication to social justice and pro bono matters. The article says that he has served on the Board of the Boys and Girls Club of Chicago for over a dozen years, and is also a Board Member of the Lyric Opera. His leadership in these nonprofits has created opportunities for other members of Jenner & Block to provide volunteer and pro bono services to the organizations.
The article also underscores Mr. Martin’s devotion to his wife and children. His “unwavering commitment to his clients and Jenner is only matched by his unyielding commitment to his family,” says the article.
Practice Groups:
Litigation Department
Related Document(s):
Click here to view the Leading Lawyers article.
1/12/2009
Jenner & Block Represents Pro Bono Death Row Client Before US Supreme Court on 6th Amendment Counsel Issue
On Tuesday, January 13, 2009, Partner Donald B. Verrilli, Jr., of the national law firm of Jenner & Block will argue in the US Supreme Court on behalf of pro bono client Jesse Jay Montejo, a Death Row inmate in Louisiana, asserting that Mr. Montejo was unconstitutionally interrogated by police officers after counsel had been appointed to represent him. The case is Montejo v. Louisiana, No. 07-1529.
In September 2002, Mr. Montejo was a suspect in a murder that followed an apparent robbery in Slidell, Louisiana. He was brought before a judge, and counsel was appointed for him. Although police gave him Miranda warnings, they proceeded to ask him, in the absence of his lawyer, to write a letter confessing to the crime. While continuing to assert his innocence, he wrote such a confession. Mr. Montejo was convicted of first degree murder at trial and was sentenced to death in 2005.
The Louisiana Supreme Court rejected Mr. Montejo’s claim that he had been unconstitutionally denied the right to counsel under the Sixth Amendment and that all statements that he made in his counsel’s absence were therefore inadmissible under Supreme Court precedent. That court ruled that since Mr. Montejo did not affirmatively “accept” the appointment of counsel, his statements were admissible and that “something more than the mere mute acquiescence in the appointment of counsel is necessary.”
The US Supreme Court agreed to hear Mr. Montejo’s appeal.
The Louisiana Supreme Court’s ruling “lacks any grounding in common sense or this Court’s precedents,” wrote the Jenner & Block team, led by Mr. Verrilli, in its merits brief for Mr. Montejo. “Because Montejo had a lawyer when the police initiated their interrogation, that interrogation was a plain violation of Montejo’s Sixth Amendment rights, and the resulting incriminating statements should never have been admitted at trial.”
The Jenner & Block team also includes Partners Ian Heath Gershengorn and Katherine A. Fallow, and Associates Matthew S. Hellman, Thomas H. Kim, Adam G. Unikowsky, and Caroline D. Lopez.
“Mr. Montejo was clearly denied the right to counsel,” Mr. Verrilli said. “There is no basis in law for the Louisiana Supreme Court’s ‘affirmative acceptance’ requirement. Additionally, that standard would be impossible to enforce or administer as a practical matter. Justice requires that the Supreme Court find in Mr. Montejo’s favor.”
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
1/9/2009
Firm Files Brief in US Supreme Court on Behalf of Pro Bono Immigration Client
The national law firm of Jenner & Block filed a brief in the US Supreme Court on December 19, 2008, in the case of Jean Marc Nken, a citizen of Cameroon whom the Firm is representing on a pro bono basis in his efforts to obtain asylum in the United States. The case will be heard by the Justices this month.
Mr. Nken, a pro-democracy advocate in Cameroon, applied for asylum in the United States in 2001. He fled Cameroon because the government detained, interrogated, and beat him for his advocacy for free elections. After several years of court and administrative proceedings, his asylum application was denied by the Board of Immigration Appeals earlier this year. He sought review in the US Court of Appeals for the Fourth Circuit. The court of appeals, however, declined to issue a stay of his removal while the appeal there was pending, meaning that he could be deported back to Cameroon nothwithstanding the grave danger he faces there.
Mr. Nken, represented by Jenner & Block attorneys, then filed an emergency motion in the US Supreme Court, seeking a stay and contending that the standard that the court of appeals had used in denying the stay was incorrect and unjustified by federal immigration law. The Supreme Court granted the application for the stay and scheduled argument on Mr. Nken’s case for January 21, 2009.
The Jenner & Block attorneys contend that in evaluating Mr. Nken’s application for a stay, the court of appeals should have used the traditional test for granting a stay -- a test that eight other federal appeals courts have applied. Instead, the Firm argues, the court of appeals misapplied a 1996 immigration law to permit a stay only if the immigrant can show “by clear and convincing evidence” that his removal is prohibited by law.
Arguing the case in the Supreme Court for Mr. Nken will be Lindsay C. Harrison, a 30-year-old associate at the Firm.
The Jenner & Block team also includes Partners Jared O. Freedman, Ian Heath Gershengorn, and Donald B. Verrilli Jr., and Associates Julia K. Martinez and Adam G. Unikowsky.
“This case can literally mean life or death for my client,” Ms. Harrison said. “He was severely beaten in Cameroon for engaging in nonviolent political protests. The standard imposed by the Fourth Circuit for granting a stay is contrary to federal law. If it is allowed to stand, people like Mr. Nken can be sent back to their home countries before their case is even heard by an appeals court.”
The Jenner & Block team wrote that courts should “continue to apply the traditional stay standard to determine when to grant a stay of an order of removal pending judicial review.”
Ms. Harrison said she has long had a particular interest in immigration and asylum cases. Her father came to the United States as an immigrant from the Soviet Union in 1975.
Ms. Harrison is a 2003 graduate of the Harvard Law School. As a summer associate, she was a member of the Firm’s litigation team that obtained reversal of the lower court’s decision in the landmark Supreme Court case of Lawrence v. Texas, in which the Supreme Court held that the Constitution does not permit a state to criminalize private consensual sexual behavior.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here to view a copy of the brief.
12/30/2008
Firm Wins Jurisdictional Ruling in DC Circuit Against the Securities and Exchange Commission
A team of attorneys from Jenner & Block, led by Associate Michelle A. Groman, who argued the case in November 2008 in the US Court of Appeals for the DC Circuit, has won a jurisdictional ruling against the Securities and Exchange Commission. The Jenner & Block team, appointed as amicus to the court, worked on a pro bono basis.
On December 2, 2008, the US Court of Appeals for the DC Circuit issued a brief per curiam judgment in the case, which involved a petition for review of a SEC order sustaining sanctions imposed on a stockbroker by the National Association of Securities Dealers based of his handling of client accounts. The Court appointed Jenner & Block to present arguments in support of the court’s jurisdiction to consider the petition for review; the SEC argued that the court had no such jurisdiction.
The DC Circuit, agreeing with the position taken by the Firm, found that the court did have jurisdiction. The court concluded that, despite many procedural twists, the SEC's order against the broker was a final order when the petition for review was filed. "Accordingly," the court wrote, "under the unusual facts of this case, we have jurisdiction." On the merits, the court affirmed the SEC’s order.
In addition to Ms. Groman, the Jenner & Block team was led by Partners David W. DeBruin, Larry P. Ellsworth, and Thomas C. Newkirk.
Practice Groups:
Litigation Department
Securities Litigation
12/29/2008
Jenner & Block Recognized as “Leading Business Litigation Firm” by Benchmark Litigation
Jenner & Block was named one of the “nation’s leading business litigation firms” in the 2009 edition of Benchmark Litigation: the definitive guide to America's leading business litigation firms and attorneys. The publication also recognized several of Jenner & Block attorneys as "leading litigation stars."
Benchmark recognized Jenner & Block as a top litigation firm nationwide and in Illinois, noting that the Firm was “consistently recommended as the best in the country for national-scale, ‘bet-the-company’ litigation.”
The publication said the Firm’s lawyers were “among the best in the U.S.” with “roughly 250 lawyers across offices ready to try cases.” Among other things, Benchmark highlighted several of the Firm’s recent major client victories, including the appellate victory for L-3 Communications; the successful copyright infringement suit for the Motion Picture Association of America; the trademark infringement victory for Weider Publications and American Media; and the successful defense of a product liability suit for General Motors.
Benchmark also noted that Jenner & Block has received “significant recognition” for its pro bono work, including the Firm’s representation of New Orleans residents post-Hurricane Katrina and detainees at Guantanamo Bay.
Chairman Anton R. Valukas, Chairman Emeritus Jerold S. Solovy, and Partners Jeffrey D. Colman and John H. Mathias, Jr. were recognized by Benchmark as Illinois “litigation stars” for being “consistently recommended as incontrovertible stars by clients and peers.” Mr. Solovy was also named a national “star” in general commercial litigation, and Mr. Mathias was named a national “star” in insurance litigation.
Associates Erin R. Schrantz and Sara S. Ruff were recognized by Benchmark as Illinois "future stars" for being “consistently recommended by peer partners, competitors and clients as litigators who are likely to appear as ‘local litigation stars’ in coming additions.”
Benchmark Litigation is published by Legal Media Group, a part of Euromoney Institutional Investor PLC. Recommendations published in Benchmark Litigation are based on extensive face-to-face and telephone interviews with the nation's leading private practice lawyers and in-house counsel.
Practice Groups:
Insurance Litigation and Counseling
Litigation Department
12/11/2008
Harris Recognized as “Leading Law Firm Rainmaker” by Diversity & The Bar
Jenner & Block Partner Philip L. Harris was recognized as a “Leading Law Firm Rainmaker” by Diversity & The Bar magazine for his substantive legal skills and demonstrated success in business development.
Mr. Harris was one of 16 attorneys nationwide profiled as a “Leading Law Firm Rainmaker” in the November/December 2008 issue of Diversity & The Bar magazine. According to the publication, the featured attorneys — who each boast a regular book of business reaching or exceeding $2 million a year — “combine substantive legal skills with an ability to build relationships and market themselves to grow their books of business.”
Mr. Harris, an experienced trial lawyer who focuses his practice on the defense of substantial and complex product liability, mass tort and commercial cases for large corporate entities, was the only Chicago-based attorney featured in the publication. Among other things, the magazine highlighted Mr. Harris’ dedication to building professional relationships and providing clients with exceptional service. His profile also stressed the importance of having a supportive business environment.
“Because of the weight placed on business development, it’s important to pick a firm that shares your values, where you are at ease with the way partners interact,” Mr. Harris told Diversity & The Bar.
Mr. Harris is a member of the Firm’s Litigation Department and its Business Litigation, Products Liability and Mass Tort Defense and Class Action Litigation Practices. He is also a member of the Firm's Management Committee. Mr. Harris is a Fellow of The Aspen Institute’s Henry Crown Leadership Program, Litigation Counsel of America and Leadership Greater Chicago, and a Trustee of Northwestern University and the Chicago Zoological Society.
Diversity & The Bar is the signature publication of the Minority Corporate Counsel Association.
Practice Groups:
Complex Commercial Litigation
Class Action
Litigation Department
Products Liability and Mass Tort Defense
Related Document(s):
Please click here for Mr. Harris' Diversity & The Bar profile.
12/1/2008
Jenner & Block Wins Political Asylum for Eritrean Client
Jenner & Block Associates Tyler J. Garrett and Joseph H. Thompson recently secured asylum for an Eritrean woman who had been a victim of imprisonment and torture as a result of her involvement with an outlawed political organization.
The client and her family were members of the Eritrean Liberation Front (ELF), a dissident political organization that opposed the ruling Eritrean regime. She was arrested by soldiers in 2002 and subjected to regular interrogation sessions, during which she was beaten, burned and otherwise tortured. Upon the client’s release, she fled to Saudi Arabia to work as a domestic helper. In 2006, her Saudi employers became angry with her during a trip to the United States and threatened to return her to Eritrea. Fearing she would be persecuted if returned to her native country, she fled the Saudi family and applied for asylum in the United States.
Mr. Garrett and Mr. Thompson began working on this matter in May 2007. They worked extensively with a translator to get the client’s story, and obtained affidavits from various experts, including a forensic medical specialist, a psychotherapist, and a country conditions expert. At the trial, Mr. Garrett and Mr. Thompson presented live testimony from the client as well as from the country conditions expert, which strongly corroborated the client’s account.
Partner Lawrence S. Schaner served as supervising attorney on this pro bono matter and Associate Laura E. Pelanek also assisted in the case.
Practice Groups:
Litigation Department
11/11/2008
Suskin Comments on Recent SEC Moves Affecting Money Market Funds
Jenner & Block Partner Howard S. Suskin, Chair of the Firm’s Class Action Litigation Practice and Co-Chair of its Securities Litigation Practice, was quoted in an article published last week in IA Week on the topic of the Securities and Exchange Commission's recent no-action letters and temporary order halting redemptions on Reserve Municipal Money-Market Trust funds.
In order to increase liquidity in money market funds, the article says the SEC issued no-action letters temporarily giving money market managers greater flexibility to sell commercial paper and other poor performing securities in their portfolios. The SEC also issued a rare temporary order halting redemptions on Reserve Municipal Money-Market Trust funds in order to give the funds time to liquidate ‘in an orderly manner.’
“This is one more additional surprise in a series of lots of surprises” over the last two months, said Mr. Suskin. The recent economic difficulties have made money managers aware that even secure, liquid vehicles may not be safe, observed Mr. Suskin, and highlight the importance of accurately describing the potential risks to their clients.
IA Week is a leading publication for Investment Advisors and Investment Advisory firms.
Practice Groups:
Litigation Department
Securities Litigation
Class Action
11/5/2008
Jenner & Block Wins $17.5 Million Arbitration Award for Trustmark in Reinsurance Case
On October 24, 2008, a team from Jenner & Block won a $17.5 million arbitration award on behalf of Trustmark Insurance Company against two subsidiaries of AIG, U. S. Life Insurance Company and All American Life, in a complicated reinsurance case. The arbitrator's award also includes declaratory relief likely to bring the total award to in excess of $20 million, the full amount that Trustmark had claimed.
The dispute between Trustmark and the two subsidiaries of AIG concerned whether AIG had liability for certain contracts related to a joint venture reinsurance facility that had been established. AIG and its counsel vigorously contested liability, but the arbitrator accepted both the factual testimony and legal arguments presented by Trustmark.
The Jenner & Block trial team included Partners Robert L. Byman, Joel T. Pelz, and Patricia A. Bronte, Associates Jill M. Hutchison and William P. Wallenstein, Project Assistants Annette M. Young and Kenneth S. Waldmann, Paralegals Franklyn N. Phillip Jr., Shawn K. McGee, and W. Michael Hughes Jr., and Legal Secretary Kathleen Dickman.
Practice Groups:
Insurance Litigation and Counseling
International Arbitration
Litigation Department
Reinsurance Practice
11/4/2008
Spacapan Appointed as Chair of DRI Toxic Torts and Environmental Law Committee
Jenner & Block Partner Lise T. Spacapan has been appointed as the new Chair of the Toxic Torts and Environmental Law Committee of DRI: The Voice of the Defense Bar. DRI is a 22,000-member international organization of attorneys who defend the interests of business and individuals in civil litigation.
The primary objective of the committee is to facilitate the work of civil lawyers defending the interests of business by providing members with the most current and reliable scientific, medical and legal information available. The committee fulfills this role through its annual seminar, an expert witness information sharing network, an electronic newsletter, and a system that connects practitioners with a vast network of accomplished defense attorneys. The committee has 1,300 members.
Ms. Spacapan served as the Program Chair for the 2008 DRI Toxic Torts and Environmental Law Seminar that was held in New Orleans on February 28-29, 2008, and has served as Committee Vice Chair for the past year.
Ms. Spacapan is Chair of the Firm’s Products Liability and Mass Tort Defense Practice. She has broad litigation experience handling cases involving complex technical issues, and she has successfully defended the manufacturers of prescription drugs, vaccines, medical devices, chemicals, automotive products, insecticides, building and industrial products.
Practice Groups:
Litigation Department
Products Liability and Mass Tort Defense
11/1/2008
Firm’s Albert E. Jenner, Jr. Award Honors Four Attorneys’ Exemplary Commitment to Pro Bono Work
Jenner & Block Partners Iris E. Bennett and Terrence J. Truax and Associates Joshua A. Block and Matthew S. Hellman were recently honored with Jenner & Block’s Albert E. Jenner, Jr. Pro Bono Award, which annually recognizes those attorneys at the Firm who have been nominated by their peers as having demonstrated an exemplary commitment to pro bono or public service work.
Ms. Bennett, a member of the Firm’s White Collar Criminal Defense and Counseling Practice and Entertainment and New Media Practice, was honored for her pro bono advocacy in support of immigrant rights and human trafficking issues. Ms. Bennett recently devoted a considerable amount of time to the representation of a pro bono client in an immigration detention case before the Seventh Circuit. She worked extensively on the appellate brief in the matter and advocated for her client’s due process rights in oral argument before the court. Ms. Bennett also recently co-authored an influential amicus brief on behalf of the ABA in Lopez v. Gonzalez, which was decided by the U.S. Supreme Court in favor of the petitioner immigrant.
Mr. Truax, a member of the Firm’s Litigation Department and Intellectual Property and Business Litigation Practices, was honored for his dedicated representation of poor and underserved individuals in several criminal trial proceedings in 2007. An ardent supporter of the Firm’s pro bono practice in the criminal courts of Cook County, Mr. Truax also provided valuable advice and supervision to numerous attorneys on their pro bono criminal matters. Mr. Truax serves on the Board of Directors of the Chicago Bar Foundation and the Advisory Board of Directors of Breakthrough Urban Ministries, which provides overnight transitional housing and programs for Chicago’s homeless and unemployed. He also serves on the Advisory Board for the Cabrini Green Legal Aid Clinic.
Mr. Block, a member of the Firm’s Litigation Department, was honored for his work on a number of pro bono matters in 2007. Among other pro bono efforts, Mr. Block assisted in a court-appointed monitorship of the operations of multiple gun dealers, who had agreed to the monitorship pursuant to settlements with The City of New York. Mr. Block also helped draft several briefs filed with the U.S. Supreme Court; authored influential amicus briefs in the Second Circuit and the District of Columbia; and helped prepare a successful appeal of a U.S. Forest Service decision.
Mr. Hellman, a member of the Firm’s Litigation Department and Appellate and Supreme Court and Media and First Amendment Practices, was honored for his pro bono work on behalf of several clients on death row challenging the constitutionality of lethal injection procedures in states throughout the country. Mr. Hellman played a crucial role in conducting discovery and trying the Missouri challenge in the Eighth Circuit, and also worked on the Firm’s petition to the U.S. Supreme Court to review the appellate court’s decision. Mr. Hellman was also a key member of the Firm’s team working on the U.S. Supreme Court case, Baze v. Rees, which set forth standards for the constitutionality of lethal injection.
The pro bono award recipients were selected by the Firm’s Pro Bono Committee. The award entitles the recipients to direct a contribution by the Firm to the charity of their choice.
The awards were presented to the attorneys at a Firm event on October 25, 2008 by Pro Bono Committee Co-Chairs Barry Levenstam and David W. DeBruin and Partner Susan J. Kohlmann, a member of the Firm’s Pro Bono Committee.
Pictured:
Top (left to right): Albert E. Jenner, Jr. Pro Bono Award Recipients Joshua A. Block, Terrence J. Truax, Iris E. Bennett and Matthew S. Hellman
Bottom (left to right): Pro Bono Committee Co-Chair Barry Levenstam, Pro Bono Committee Member Susan J. Kohlmann, Mr. Block, Managing Partner Susan C. Levy, Mr. Truax, Ms. Bennett, Mr. Hellman, Pro Bono Committee Co-Chair David W. DeBruin and Chairman Anton R. Valukas
Practice Groups:
Litigation Department
10/27/2008
Jenner & Block Wins Political Asylum for Guinean Client
On October 20, 2008, Jenner & Block Associate Brian J. Fischer secured asylum for a Guinean man who had been wrongfully imprisoned and tortured because of his political affiliation and ethnicity.
Mr. Fischer began his representation a year ago when the client came before an Asylum Officer who, after an arduous hearing, denied his application with little explanation.
The client was referred by the Asylum Office to Immigration Court for removal proceedings. Represented by Mr. Fischer at his removal hearing, the client gave terrifying testimony about his arrest at a student protest and experience at a notorious prison in Conakry known for its inhumane conditions and abusive guards.
Finding that the client’s testimony was “completely credible” and consistent with well-documented abuses that continue to be carried out by the Guinean government, the Immigration Law Judge granted the client asylum.
Partner Katya Jestin served as supervising attorney on this pro bono case. Partners Mike F. Buchanan and Alex Lipman also assisted in the matter.
Practice Groups:
Litigation Department
10/15/2008
Suskin Comments on Potential Liability for Money Market Fund Boards
As the crisis on Wall Street continues, a recent article in Board IQ discusses whether boards of money market funds may be named in lawsuits stemming from oversight of funds’ compliance plans.
In particular, the article addresses the issue of boards' responsibility for the accuracy of disclosures made to investors. The article notes that questions have emerged as to whether managers of troubled funds made claims to investors that were not in line with real fund practices, and if they invested in securities outside the funds’ purviews.
"The potential exposure of directors is going to be tied to how accurate the disclosures were," Howard S. Suskin, Chair of the Firm’s Class Action Litigation Practice and Co-Chair of the Firm’s Securities Litigation Practice, told Board IQ.
Under federal antifraud securities laws, one has to show either "actual knowledge or reckless disregard," said Mr. Suskin. "Plaintiffs would have to show that directors were put on notice, were aware of non-compliance being alleged, or completely failed to pay attention to it."
"I don't think it would be reasonable to expect directors to be sitting next to the compliance officer and trading desk, watching every trade, but they would be expected to review the periodic reports distributed to them and to make sure the manager isn't doing something other than following the investment objectives." Mr. Suskin said. "If the directors were provided information that the investment guidelines weren't being followed, that could implicate them."
Practice Groups:
Class Action
Securities Litigation
Litigation Department
10/14/2008
Firm’s “Powerful” Amicus Brief Impacts Connecticut Supreme Court Ruling Recognizing Same-Sex Marriage
In a groundbreaking ruling last week, the Connecticut Supreme Court issued a decision that struck down the state’s civil union law as unconstitutional and granted marriage rights to same-sex couples in that state. Connecticut now joins California and Massachusetts in legally recognizing gay marriage.
A team from the Firm led by Partners Paul M. Smith and William Hohengarten filed a brief in the case on behalf of the American Psychological Association (APA) and other groups. The Firm’s brief, which was hailed in a recent article in The AmLaw Daily as “a stirring defense of gay rights,” and called "the most powerful" of those submitted in the case by major law firms, aimed to quash the notion that children raised by gay or lesbian couples have a higher rate of sexual identity disorders and other difficulties.
“The vast majority of gay and lesbian individuals lead healthy, well-adjusted, and productive lives, and many are already in same-sex relationships that are equivalent to heterosexual relationships in essential respects,” said the Firm’s brief. “Allowing same-sex couples to marry would give them access to the legal, social, and economic support that already facilitate and strengthen heterosexual marriages, with all of the psychological and health benefits associated with that support. It would also end the antigay stigma imposed by the state’s ban on same-sex marriage.”
Jenner & Block has a longstanding tradition of supporting LGBT rights and has played an influential role in several significant LGBT civil rights cases. For instance, the Firm worked alongside the Lambda Legal Defense & Education Fund in the landmark 2003 U.S. Supreme Court case Lawrence v. Texas, which forever altered the LGBT civil rights landscape. A Jenner & Block team led by Mr. Smith, Mr. Hohengarten and Associate Anjan Choudhury also filed an amicus brief on behalf of the APA in the recent California Supreme Court case that granted same-sex couples in that state the right to marry. The California Supreme Court decision, issued in May 2008, quoted extensively and relied on the Firm’s brief.
Mr. Smith, who argued Lawrence v. Texas before the U.S. Supreme Court, told The AmLaw Daily that the Firm likely will continue to write amicus briefs on behalf of the APA as more states take up the gay marriage issue. "Maybe we're at the point that it's becoming not so controversial," he said.
Former Associate Eric Berger also contributed to the Firm’s brief.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here to view the Firm’s amicus brief.
10/8/2008
Four Jenner & Block Partners Selected for 2008 New York Super Lawyers - Metro Edition
Jenner & Block Partners Stephen L. Ascher, Andrew H. Bart, Susan J. Kohlmann and Andrew Weissmann were selected for inclusion in the New York Super Lawyers - Metro Edition list for 2008, a peer-reviewed guide to the top five percent of attorneys in New York.
Mr. Bart and Ms. Kohlmann were listed for Intellectual Property Litigation. For two decades Mr. Bart has focused on litigation in the entertainment industry, especially intellectual property issues and contractual disputes. He has handled matters that have resulted in precedent setting decisions in copyright law, the law of privacy and publicity and artist-label relations.Ms. Kohlmann has litigated a variety of intellectual property matters, particularly in the areas of trademark and copyright. Recently, she successfully represented the heirs of novelist John Steinbeck’s widow, Elaine Steinbeck, in front of the U.S. Court of Appeals for the Second Circuit in a case in which the Court held that the rights of the heirs could not be terminated.
Mr. Ascher was named for his work in Securities Litigation. Recently, he defended a securities trader who was indicted as part of the largest insider-trading prosecution in the last twenty years. He also represented a mutual fund executive in the first federal trial involving securities claims relating to “market-timing.”
Mr. Weissmann, who was named for Criminal Defense: White Collar, is a nationally-recognized white collar litigator. He represents U.S. and foreign corporations and executives in connection with criminal and civil investigations, including representation before the Department of Justice, the Securities and Exchange Commission, and state and local authorities. Mr. Weissmann served as Director of the Enron Task Force, overseeing the prosecution of over 30 individuals in connection with the company’s collapse.
Practice Groups:
Litigation Department
Securities Litigation
White Collar Defense and Investigations
Intellectual Property
10/6/2008
Byman Elected To Serve As Regent of the American College of Trial Lawyers
Jenner & Block Partner Robert L. Byman was recently elected to serve as a Regent of The American College of Trial Lawyers.
The American College of Trial Lawyers is composed of the "best of the trial bar" from the United States and Canada and is widely considered to be the premier professional trial organization in America. Founded in 1950, the College is dedicated to maintaining and improving the standards of trial practice, the administration of justice and the ethics of the profession.
The management of the College’s affairs is vested in a board of regents, consisting of five officers and 15 regents. The regents are elected for four-year terms and have an assigned jurisdiction of states and/or provinces, as well as liaison responsibility for a number of general committees.
Mr. Byman is a longtime leader in the College. He served as Chairman of the College’s Committee on Federal Civil Procedure from 2002-2005 and also previously served as Chair of the College’s Committee on Judicial Independence and Committee on Judicial Compensation.
Mr. Byman is a member of the Firm’s Litigation Department and its Arbitration: Domestic and International, Business Litigation, and Securities Litigation Practices. He has tried dozens of cases to jury or bench verdict in a gamut of substantive areas, including patents and intellectual property, commodities and securities, trade practices, environmental, employment, land use, professional liability, civil rights, and a wide variety of complex contractual disputes with issues such as insurance, construction, franchising, licensing, and corporate acquisitions and reorganizations.
In addition to Mr. Byman, Jenner & Block attorneys Jeffrey D. Colman, Richard T. Franch, Lee A. Freeman, Jr., Joan M. Hall, Donald R. Harris, William D. Heinz, Chester T. Kamin, Linda L. Listrom, Harry J. Roper, Charles B. Sklarsky, Jerold S. Solovy, Thomas P. Sullivan and Anton R. Valukas are Fellows of the College, an honor extended by invitation to those experienced trial lawyers who have demonstrated exceptional skill as advocates and whose professional careers have been marked by the highest standards of ethical conduct, professionalism and civility.
Practice Groups:
Litigation Department
10/2/2008
Roper Inducted As Fellow of the American College of Trial Lawyers
Jenner & Block Partner Harry J. Roper was recently inducted as a Fellow of the American College of Trial Lawyers.
The American College of Trial Lawyers is composed of the "best of the trial bar" from the United States and Canada and is widely considered to be the premier professional trial organization in America. Founded in 1950, the College is dedicated to maintaining and improving the standards of trial practice, the administration of justice and the ethics of the profession.
According to the College, fellowship is extended only by invitation, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality.
Mr. Roper is Chair of the Firm’s Intellectual Property Practice and serves on the Firm’s Management Committee. He is nationally recognized as one of the foremost trial lawyers in the intellectual property field and has extensive trial experience with complex patent litigation cases.
In addition to Mr. Roper, Jenner & Block attorneys Robert L. Byman, Jeffrey D. Colman, Richard T. Franch, Lee A. Freeman, Jr., Joan M. Hall, Donald R. Harris, William D. Heinz, Chester T. Kamin, Linda L. Listrom, Charles B. Sklarsky, Jerold S. Solovy, Thomas P. Sullivan and Anton R. Valukas are Fellows of this distinguished organization.
Practice Groups:
Intellectual Property
Litigation Department
10/2/2008
Firm's Amicus Brief Urges Reduction of 55-Year Sentence in Federal Drug Case
On Sept. 17, 2008, the Firm filed an amicus curiae brief in the U.S. District Court for the District of Utah in support of a motion by Weldon H. Angelos to vacate, set aside, or correct his sentence in a federal drug case.
Mr. Angelos, a first-time offender, was sentenced to 55 years in federal prison in Utah after selling a few hundred dollars' worth of marijuana on two occasions to a government informant. During the sales, Mr. Angelos had on his person, but did not display or use, a firearm. The prosecution chose to charge him on five separate counts of possessing a firearm in connection with a drug offense, which requires a sentence of at least five years in prison for the first offense and at least 25 consecutive years for each subsequent offense. Mr. Angelos was convicted on three of these counts and was therefore sentenced to 55 years in prison.
The Firm, working with a newly organized nonprofit group, the Center on the Administration of Criminal Law, filed an amicus brief in the U.S. District Court for Utah, asking that the sentence be vacated because Mr. Angelos was charged in an excessive and arbitrary manner and because the sentence was an abuse of prosecutorial discretion.
The Center, which is associated with the New York University School of Law, studies prosecutorial discretion and its limits and suggests avenues for reform. This was one of the first cases in which the Center filed an amicus brief.
The Firm's brief on behalf of the Center says that Mr. Angelos' sentence violates the Eighth Amendment.
"The Constitution was never intended to permit prosecutorial charging decisions to dictate sentences that are cruel and unusual punishment," the Firm wrote. "The Center thus seeks to ensure that the constitutional limits on prosecutorial discretion are preserved and enforced."
The Firm's brief was written by Partner Samuel L. Feder and Associate Lindsay C. Harrison.
Please click here for the full text of the brief.
Practice Groups:
Litigation Department
9/23/2008
Firm Wins New Hearing for Pro Bono Client in Habeas Appeal
On August 18, 2008, the U.S. Court of Appeals for the Seventh Circuit reversed the U.S. District Court and ruled that Jenner & Block client Donchii Malone had shown that he had suffered prejudice in his trial in Illinois state court because of his then trial counsel's decisions.
The appeals court, ruling in a habeas corpus proceeding brought by Mr. Malone, ordered the lower court to hold an evidentiary hearing on Mr. Malone's claim of inadequate representation by counsel. Mr. Malone, who was convicted of murder in 1988, contended that trial counsel's failure to call an eyewitness to the crime who could not place Mr. Malone at the scene prejudiced his chances of acquittal.
"Given the nature of the evidence against Mr. Malone, as well as his counsel’s failures, we are persuaded not only that there is a reasonable probability that the outcome of the trial would have been different had Mr. Malone’s counsel called [the eyewitness], but also that the state appellate court’s decision to the contrary was an unreasonable one," the appeals court wrote.
Under the standards set forth by the U.S. Supreme Court for inadequate assistance of counsel in Strickland v. Washington (1984), a defendant must show both that he was prejudiced by his trial counsel's decisions and that the trial counsel's performance fell below the minimal standards for professional competence of an attorney. The evidentiary hearing ordered by the appeals court will consider evidence on whether Mr. Malone's trial counsel met those minimal standards.
The Seventh Circuit appointed Jenner & Block to represent Mr. Malone in his appeal. The Firm's team was led by Partner Chris C. Gair, Associate Melanie K. Nelson, and Project Assistant Heather L. Trumbour. The case was Malone v. Walls, No. 06-3235.
Practice Groups:
Litigation Department
9/19/2008
Schaner Appointed Arbitrator for CIDRA and ICDR
Jenner & Block Partner Lawrence S. Schaner was recently appointed to serve as an arbitrator on the panel of the Chicago International Dispute Resolution Association (CIDRA). Earlier this year, Mr. Schaner was also named an arbitrator for the International Centre for Dispute Resolution (ICDR).
Mr. Schaner is Chair of the Firm's Arbitration: Domestic and International Practice and a member of its Business Litigation Practice. He has over 20 years of experience focusing on the resolution of complex business disputes, and has significant experience representing clients in arbitrations, matters relating to arbitration, mediation and international litigation.
Mr. Schaner speaks and writes frequently on a variety of topics relating to international arbitration and international litigation, and is active with many of the world's leading arbitration institutions and organizations. He is a Member of the International Chamber of Commerce Commission on Arbitration; Fellow of the Chartered Institute of Arbitrators: Publications and Newsletter Editor of the Arbitration Committee of the International Bar Association; and Secretary of the North American Users' Council of the London Court of International Arbitration.
The Chicago International Dispute Resolution Association is a forum devoted exclusively to the resolution of private international business disputes.
The International Centre for Dispute Resolution is charged with the exclusive administration of all of the American Arbitration Association’s international matters. The ICDR's international system is designed to move matters forward, facilitate communications, ensure that qualified arbitrators and mediators are appointed, control costs, understand cultural sensitivities, resolve procedural impasses, and properly interpret and apply its International Arbitration and Mediation Rules.
Practice Groups:
International Arbitration
Litigation Department
9/19/2008
Firm Wins Dismissal of Class Action Against Marriott by Timeshare Purchasers
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.
Practice Groups:
Class Action
Litigation Department
9/13/2008
Firm Obtains Significant Appellate Victory for Consolidated Industries Trustee
In a major victory for Jenner & Block client Daniel Freeland, the Chapter 7 Bankruptcy Trustee of Consolidated Industries Corporation, the U.S. Court of Appeals for the Seventh Circuit last week affirmed in substantial part a large judgment for the Trustee.
The court found that Consolidated Industries had made actual fraudulent transfers to its former owner, Enodis Corporation, at a time when Consolidated Industries was insolvent and facing significant exposure for products liability and other claims arising out of defective furnaces it manufactured and sold.
The court affirmed over $40 million of the judgment, with the remainder remanded for additional findings. The court also vacated a judgment entered for the defendants on the Trustee's alter ego claims and remanded for further proceedings, which may allow the Trustee to obtain significant additional monies.
Partners Catherine L. Steege, Joel T. Pelz and Ronald R. Peterson, with assistance from Associate Christine L. Childers, successfully handled the trial court matters on behalf of the Trustee. Partner Barry Levenstam and Associate David H. Hixson assisted with the appeals, and Partner Carter H. Klein helped secure the judgments by negotiating the terms of a letter of credit.
Practice Groups:
Appellate and Supreme Court Practice
Bankruptcy, Workout and Corporate Reorganization
Litigation Department
9/12/2008
Storino Named to Law Bulletin’s 40 Under 40
Jenner & Block Partner John R. Storino was recently named one of the Law Bulletin Publishing Company’s “40 Illinois Attorneys Under Forty to Watch” for 2008.
The prestigious annual list honors 40 young Illinois attorneys who “are not only dedicated to the practice of law and have the cases and clients to back it up,” but are also “involved with the community and committed to helping younger attorneys navigate the maze through their legal careers.”
Among other things, the Law Bulletin recognized Mr. Storino’s lead role in several multi-million-dollar cases, as well as his success in arguing two matters before the United States Court of Appeals for the Seventh Circuit. In addition, the Law Bulletin highlighted his work as a special assistant attorney general representing the Governor and various state agencies in First Amendment, political discrimination and retaliatory discharge cases.
“The breadth of his intellectual capacity is surpassed only by his insatiable thirst for intellectual curiosity,” attorney Richard Pellegrino told the Law Bulletin. “As for his interpersonal skills, John is unequaled in his ability to join disparate people together and maintain the utmost civility while in the heat of litigation.”
“John has all the objective criteria necessary to excel as a lawyer. He works hard. He is smart. He is honest. He is dependable and highly responsible. And he is personable,” said Partner Joseph G. Bisceglia, who has worked closely with Mr. Storino. “But he has something extra, other qualities that cannot be taught as part of a law school curriculum that have made him a truly outstanding lawyer well before the time the few lawyers who achieve that goal do so.”
The Law Bulletin also underscored Mr. Storino’s commitment to providing legal counsel to low-income clients who would normally not have access to the legal system. The Law Bulletin noted Mr. Storino’s pro bono representation of several criminal defendants in murder and attempted murder cases, as well as his service on the Board of Directors for the Lawyers Committee for Better Housing and St. Ann School of Pilsen.
“I have met no one who is more committed to helping the poor and oppressed in our community than John,” said Jenner & Block Partner Jeffrey D. Colman.
Practice Groups:
Litigation Department
Related Document(s):
Please click here to view Mr. Storino's profile.
9/8/2008
Firm Secures Victory for Equity Lifestyle Properties
Jenner & Block recently secured a victory before a California Superior Court for client Equity Lifestyle Properties, a New York Stock Exchange company that is chaired by Sam Zell.
The case was brought against Equity Lifestyle Properties by 21st Mortgage, a Berkshire Hathaway owned company, that alleged that Equity Lifestyle Properties had engaged in various unfair business practices and sought declaratory, injunctive, and monetary relief.
The Firm was retained to try the case approximately three months before trial and after the plaintiff had won summary judgment on certain issues. The plaintiff had argued that the summary judgment order established liability. Following an extensive two-week trial before a highly regarded California superior court judge, the Hon. Leslie Nichols, the court found in favor of Equity Lifestyle Properties on all counts and specifically found that it had done nothing that violated any law or duty, had not caused the plaintiff any injury, and that it would enter declaratory relief in favor of Equity Lifestyle Properties. Jenner & Block was also awarded legal fees of $400,000.
The Firm’s trial team on this case consisted of Partner David J. Bradford, Co-Chair of the Firm's Business Litigation Practice, Partner Lisa T. Scruggs, and Associate Bradley M. Yusim.
Practice Groups:
Complex Commercial Litigation
Litigation Department
9/2/2008
Firm Wins District Court Ruling for General Dynamics Shipbuilding Subsidiary
On August 21, 2008, a U.S. district judge in Philadelphia ruled that ships that have some component parts assembled abroad but that are themselves built in U.S. shipyards are not disqualified from being considered “ U.S.-built” under the Jones Act, a law that requires that vessels used in U.S. internal commerce must be built in the United States.
Aker Philadelphia Shipyard, Inc. is building ten new tankers in Philadelphia. It sought a ruling from the Coast Guard, which administers compliance under the Jones Act, that the tankers would still be considered U.S.-built even though some particular modules would be assembled in South Korea, and then would be attached to the vessels in the United States.
The Coast Guard ruled that the tankers would be considered to have complied with the law and could therefore be used in U.S. internal commerce. It took the position that under the law and regulations, the assembly of the whole vessel must take place in the United States, not the assembly of each individual part.
Two U.S. shipyard labor unions, concerned that their members would lose work to foreign manufacturers of ship components, then sued the Coast Guard in U.S. District Court, contending that its ruling was arbitrary and capricious and contrary to the plain meaning of Coast Guard regulations.
General Dynamics NASSCO (a subsidiary of General Dynamics), the Firm’s client, was permitted to intervene on the Government’s side as a defendant, because it has sought and obtained rulings from the Coast Guard similar to those provided to Aker, and those rulings relate to ongoing work in its San Diego shipyard.
U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania granted summary judgment for the defendants, thus upholding the position of the Firm’s client. Judge Pratter found that the Coast Guard regulation at issue was ambiguous but that the Coast Guard’s interpretation of the regulation was entitled to deference and that the interpretation was “neither plainly erroneous nor inconsistent with the regulation.” The judge also examined the legislative history and the purpose of the statute to bolster her conclusion.
The Coast Guard’s interpretation “is reasonable in terms of the text, history and purpose of the Jones Act,” the judge wrote.
The Firm’s team was led by Partner Elaine J. Goldenberg and Associate Matthew S. Hellman. The case is Philadelphia Metal Trades Council v. Allen, No. 07-145.
Practice Groups:
Litigation Department
Government Contracts
Defense & Aerospace
8/21/2008
Firm Achieves Pro Bono Victory for Tibetan Protestors
Jenner & Block obtained a pro bono victory for two clients who had been arrested during a March 14 demonstration at the Chinese Consulate in Chicago.
The demonstration, which was organized by the Tibetan Alliance of Chicago, was held in support of Tibetans who had been arrested and killed in Tibet for peacefully protesting and demanding their freedom. The State’s witness alleged that the clients, who had been waving a Tibetan flag while yelling “Free Tibet,” acted in an unreasonable matter and created a breach of peace in violation of the State’s disorderly conduct statute.
Jenner & Block Associates Andrew W. Vail and Wade A. Thomson took the case on a pro bono basis. The attorneys advocated on behalf of their reasonableness of the clients’ conduct and reached an agreement with the State to dismiss the charges against the clients.
In a recent “Message from the President,” Tibetan Alliance of Chicago President Pema Rinzin recognized the Firm’s pro bono advocacy on behalf of the protestors. “Our gratitude flows strong to these lawyers and to other supporters who stood by us in the trenches, so to speak, when we needed them the most,” said Mr. Rinzin.
Messrs. Vail and Thomson were supervised on this matter by Jenner & Block Partner R. Douglas Rees. Jenner & Block Summer Associate Chris Stos also assisted with the case.
Practice Groups:
Litigation Department
8/21/2008
Jenner & Block Represents STMicroelectronics in Suit Against Credit Suisse Group
On Aug. 6, 2008, STMicroelectronics NV sued Credit Suisse Group, Switzerland's second largest bank, in U.S. District Court in Brooklyn, N.Y., for fraud in allegedly placing hundreds of millions of dollars of STMicro's cash into risky auction-rate securities rather than in student-loan securities that STMicro had instructed the bank to buy.
In the complaint, STMicro wrote that it is one of more than a dozen corporate victims of a “multi-billion-dollar fraud” perpetrated by Credit Suisse’s subsidiary Credit Suisse Securities (USA) LLC and a group of its directors and brokers.
STMicro is a major semiconductor company, based in Geneva, Switzerland, whose shares are traded on the New York Stock Exchange.
In its complaint, STMicro wrote that Credit Suisse Securities repeatedly and intentionally disregarded its instructions to invest its money in student-loan securities guaranteed by the U.S. Government. Instead, according to the complaint, Credit Suisse Securities used STMicro's funds to purchase "illiquid, risky, and unsuitable auction rate securities consisting of collateralized debt obligations and credit linked notes, some of which are backed by sub-prime real estate loans.” None of these securities, the complaint said, was approved by STMicro for purchase. The auction-rate securities, the complaint said, became illiquid and suffered credit-rating downgrades because of the subprime crisis, causing STMicro to realize significant impairments in its financial reports.
According to the complaint, Credit Suisse Securities made "fraudulent omissions and misrepresentations" to STMicro concerning the investments that it was making with STMicro's money, "so as to minimize the risk that ST would question whether Credit Suisse Securities was purchasing unauthorized securities for its account."
Furthermore, the complaint states, ``after the illegal scheme was exposed by ST in the summer of 2007, rather than siding with customers who had been victimized, Credit Suisse Group aligned itself with its wholly owned subsidiary Credit Suisse Securities and its corrupt brokers and directors." According to the complaint, Credit Suisse has refused to return any of STMicro's money.
The Jenner & Block team representing STMicroelectronics is made up of Partners Andrew Weissmann, Thomas C. Newkirk, and Patrick J. Trostle, and Associates Matthew W. Alsdorf, Joseph J. McFadden and Elisabeth Genn.
Practice Groups:
Complex Commercial Litigation
Litigation Department
8/15/2008
Seventh Circuit Rules For Jenner & Block Client in Precedent-Setting CAFA Case
On Aug. 1, 2008, the U.S. Court of Appeals for the Seventh Circuit addressed what it described as a novel legal issue, interpreting a provision of the Class Action Fairness Act, 28 USC Section 1332(d)(11) (CAFA), which the Court said "has not been addressed in this or any other circuit." Bullard v. Burlington Northern Santa Fe Railway Co., No. 08-8011 (Aug. 1, 2008).
Affirming a District Court ruling in favor of Jenner & Block's client and other defendants, the appellate court ruled that federal court is the appropriate place to try a lawsuit filed by 144 plaintiffs against four companies that were allegedly involved in the release of toxic chemicals from a plant in Texas. The ruling sets significant legal precedent and represents a win for several defendants, including Firm client The Dow Chemical Company.
The defendants had removed the case from Illinois state court to the U.S. District Court for the Northern District of Illinois under the recently enacted CAFA. Under CAFA, a "mass action" -- one involving a proposed trial of the claims of more than 100 litigants -- can be removed to federal court. The plaintiffs claimed that, although they had filed a single complaint for 144 plaintiffs, theirs was not a "mass action" because they had not expressly stated that they were seeking a joint trial and might later stipulate to trial in smaller groups. The plaintiffs argued that defendants may remove a mass action only when a final pretrial order identifies 100 or more plaintiffs to be included in a single trial.
The Seventh Circuit rejected the plaintiffs' contention, holding that the case was properly removed because a joint trial is implicitly proposed by the filing of a complaint joining 100 or more plaintiffs and that it was irrelevant whether a trial covering 100 or more plaintiffs actually ensued. The Court noted that trying the claims of a few plaintiffs in such a case could have preclusive effects for the other plaintiffs. In fact, the appeals court said, the plaintiffs in this case were essentially proposing a trial common to all plaintiffs that was the the equivalent of a removable class action. In affirming the denial of the plaintiffs’ motion to remand, the court also mentioned that the amount in controversy requirement of CAFA is met “if at least one plaintiff demands $75,000.”
The Firm's team was led by Partners Lise T. Spacapan, Gabrielle Sigel, and Traci M. Braun and Associate Jill M. Hutchison. The decision was the subject of articles in the Chicago Daily Law Bulletin and Law 360.
Practice Groups:
Class Action
Environmental, Energy and Natural Resources Law
Litigation Department
Products Liability and Mass Tort Defense
8/14/2008
Jenner & Block Wins Major Copyright Case for Steinbeck’s Heirs
In a much-anticipated decision, the U.S. Court of Appeals for the Second Circuit held that the rights of the heirs of novelist John Steinbeck’s widow, Elaine Steinbeck, to many of the author’s best-known early works, including Of Mice and Men, The Grapes of Wrath, and Tortilla Flat, could not be terminated.
The court made its ruling in a dispute that pitted Elaine Steinbeck’s heirs—represented by Jenner & Block—and the Penguin Group, John Steinbeck’s publisher, against John Steinbeck’s son and granddaughter from a previous marriage.
The appeals court, reversing a federal district judge, held unanimously that a 1994 copyright agreement entered into by Elaine Steinbeck, who had received the rights by will, could not be terminated by John Steinbeck’s biological heirs. Elaine Steinbeck died in 2003.
“The Estate of Elaine Steinbeck and its heirs are delighted with the Court's ruling,” said Jenner & Block Partner Susan J. Kohlmann, who argued the case. “The Court's ruling is one of the few decisions interpreting termination rights under the Copyright Law and, by its decision, the wishes of John Steinbeck related to ownership of his literary works have been validated.”
John Steinbeck’s surviving son, Thomas Steinbeck, and his granddaughter, Blake Smyle, contended that in 2004, they served a “notice of termination” that had the effect of ending Elaine Steinbeck’s rights and extinguishing the 1994 Penguin Agreement. Such notices of termination are permitted under a 1976 copyright law, but only for agreements entered into before 1978. John Steinbeck’s original agreement with Penguin dated back to 1938.
However, Elaine Steinbeck’s heirs argued that the notice of termination had no effect because the 1994 Agreement negotiated by Elaine Steinbeck terminated and superseded the 1938 Agreement. The appeals court agreed, holding that there were “no pre-1978 grants to which the termination rights … could be applied.” The court ordered that judgment be entered against the son and granddaughter.
The Firm’s victory in this case was widely covered in major news publications including the Wall Street Journal, New York Times, New York Law Journal, AmLaw Daily, BBC News, Forbes, L.A. Times, Bloomberg, IP Law 360, Intellectual Property Today, MSNBC, Reuters and USA Today.
In addition to Ms. Kohlmann, Partner William M. Hohengarten and Associate Joshua A. Block worked on this matter.
Practice Groups:
Appellate and Supreme Court Practice
Intellectual Property
Litigation Department
8/1/2008
Firm Obtains Asylum for Tibetan Refugee
Jenner & Block successfully obtained asylum for a Tibetan woman who had been incarcerated by Chinese authorities after taking part in demonstrations against the Chinese government’s occupation of Tibet.
When the matter came to Jenner & Block nearly five years ago, the client had been denied asylum by an immigration judge and the Board of Immigration Appeals (BIA). The Firm successfully petitioned the BIA to reopen the case on the grounds of ineffective assistance of counsel, and the case was remanded for a new hearing.
The key issue on remand was whether the client had been “firmly resettled” in India so as to render her ineligible for asylum in the U.S. After she was released by the Chinese authorities, the client had fled to India where she spent nine years attending a school for Tibetans followed by two years living in hiding.
Through their examination of the client and a country condition expert at the hearing, the attorneys showed that the client was not “firmly resettled,” notwithstanding her longtime residence in India. The attorneys demonstrated that the client had no legal rights in India, as she was not free to travel, own property, vote, obtain government benefits or remain permanently in India. In addition, they established that the client possessed a well-founded fear of persecution should she be forced to return to Tibet.
Partner Lawrence S. Schaner and Associate Melanie K. Nelson represented the client in this matter, with assistance from former associates Daniel C. McMurtrie, Daniel E. Shaw and Angela M. Terry.
Practice Groups:
Litigation Department
7/31/2008
Chambers USA Recognizes Jenner & Block Practices and Attorneys in 2008 Edition
Twenty-nine Jenner & Block partners and many of the Firm’s practice areas were recently featured in the 2008 edition of Chambers USA.
Chambers is a widely distributed directory that recognizes law firms and attorneys who according to their research have demonstrated “technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment” and other qualities valued by clients. Chambers’ 2007 rankings are based on over 14,000 interviews with clients and other attorneys, and rely heavily on unprompted testimonials.
The below links reference Chambers’ commentary on Jenner & Block’s practices and partners that were featured in the publication. Also below is a list of the attorneys who were individually recognized in the publication, listed by practice area.
In March 2009, Chambers USA released the names of the Jenner & Block attorneys selected for the 2009 edition. Please click here for more information.
National
District of Columbia
Illinois
New York
The partners listed below were recognized by Chambers as among the leading practitioners in the following practice areas:
Antitrust: Lee A. Freeman, Jr.
Bankruptcy: Ronald R. Peterson, Catherine L. Steege
Corporate/M&A: Joseph P. Gromacki
Environment: Bill S. Forcade, Robert L. Graham, E. Lynn Grayson, James A. Vroman
First Amendment Litigation: Paul M. Smith
Government Contracts: David A. Churchill, W. Jay DeVecchio
Insurance: Christopher C. Dickinson, Matthew L. Jacobs, Lorelie S. Masters, John H. Mathias, Jr.
Intellectual Property: Harry J. Roper
Litigation: Charles B. Sklarsky, Jeffrey D. Colman, Chris C. Gair, Paul M. Smith, Jerold S. Solovy, Barry Sullivan, Thomas P. Sullivan, Anton R. Valukas, Donald B. Verrilli, Jr.
Media & Entertainment: David P. Sanders, Thomas J. Perrelli, Paul M. Smith
Real Estate: Donald I. Resnick
Telecom, Broadcast & Satellite/Communications: John R. Harrington, Mark D. Schneider, Donald B. Verrilli, Jr.
White-Collar Criminal Defense & Government Investigations: Charles B. Sklarsky, Anton R. Valukas
Practice Groups:
Antitrust
Appellate and Supreme Court Practice
Appellate Litigation
Bankruptcy, Workout and Corporate Reorganization
Communications
Corporate
Creative Content
Environmental, Energy and Natural Resources Law
Government Contracts
Insurance Coverage Disputes
Insurance Litigation and Counseling
Intellectual Property
Litigation Department
Mergers & Acquisitions
Real Estate
Telecommunications Class Actions
White Collar Defense and Investigations
7/31/2008
Bart, Fabrizio and Verrilli recognized by Legal 500 on Nationwide List of Top Thirteen Copyright Lawyers
The 2008 edition of Legal 500 - United States recognized five Jenner & Block practice areas and lists three Jenner & Block attorneys as among the leading lawyers in their fields in the nation.
Legal 500 - United States is a widely distributed directory that serves as a guide to “the pre-eminent firms in the world's strongest and most competitive legal market,” as reflected in the publication’s research. It reflects the views of thousands of corporate counsel who are interviewed by the publication’s editors and reporters.
The below links reference Legal 500 - United States’ commentary on the Firm’s practices and partners that were featured in the publication:
In addition, the partners listed below were ranked as “Leading Lawyers” in the following practice areas:
Intellectual Property: Copyright - National: Andrew H. Bart, Steven B. Fabrizio, Donald B. Verrilli, Jr.
Media, Technology and Telecoms: Film, Music and TV - Advice to Corporates: Donald B. Verrilli, Jr.
Practice Groups:
Creative Content
Intellectual Property
Litigation Department
Mergers & Acquisitions
Real Estate
7/11/2008
Firm Takes Lead Role in Writing First-Of-Its-Kind Ethics and Compliance Handbook
Jenner & Block Partner Andrew Weissmann and Associate Matthew W. Alsdorf took a leadership role in originating, writing, and editing The Ethics and Compliance Handbook: A Practical Guide for Leading Organizations, which was recently published by the Ethics and Compliance Officer Association.
The handbook is a practical guide to the implementation of organizational ethics and compliance programs. The first-of-its-kind book was written over a period of eighteen months by leaders in the ethics and compliance field from a wide variety of major companies and other organizations. The goal of the handbook is to create an industry-wide standard for ethics and compliance programs, so that practitioners can consult the handbook for guidance and not simply rely on governmental pronouncements such as Chapter 8 of the U.S. Sentencing Guidelines.
The handbook promises to be of significant interest to in-house counsel, senior management, boards of directors, and ethics/compliance officers.
It addresses 10 key components of an effective program, including chapters on undertaking risk assessments, creating an ethics and compliance office, and handling internal investigations. Rather than offer a series of "dos and don'ts," the book delineates the issues that an effective program should address, as well as the potential benefits and drawbacks of different approaches to each topic.
For more information, please visit the ECOA website (www.theecoa.org) or contact Mr. Weissmann at aweissmann@jenner.com or Mr. Alsdorf at malsdorf@jenner.com.
Practice Groups:
Litigation Department
White Collar Defense and Investigations
7/1/2008
Second Circuit Reverses $126 Million Verdict Against Firm Client L-3 Communications
On June 27, 2008, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously reversed a $126 million verdict against Firm client L-3 Communications Corp., holding that L-3 owed no fiduciary duty to OSI Systems, Inc. in connection with the two companies' joint effort to purchase several businesses belonging to a third company, Perkin-Elmer, Inc.
In 2001, pursuant to a non-binding letter of intent, L-3 and OSI jointly bid on four business units belonging to Perkin-Elmer, all of which were related to security detection devices for airports and office buildings. L-3 and OSI had agreed to try to divide the four business lines, with each receiving two of the business lines and each contributing half of the ultimate purchase price. L-3, with OSI's consent, did all the negotiating with Perkin-Elmer and purchased all four business lines for $100 million.
When the time came to divide the Perkin-Elmer business units, L-3 and OSI executed an amended letter of intent to reflect the fact that L-3 now owned all four business lines and wished to sell two of them to OSI for $50 million. However, negotiations broke down and L-3 ended up keeping all four.
OSI sued L-3 in federal court alleging principally that certain oral statements by L-3's Chairman and other executives had created a fiduciary relationship between the parties, and that L-3 had subsequently breached its fiduciary duty to OSI when it failed to convey the two business lines to OSI. A federal jury in the Southern District of New York agreed and awarded OSI $33 million in compensatory damages and $92.6 million in punitive damages. Jenner & Block was retained to handle L-3's appeal.
In a unanimous opinion, the Second Circuit reversed the massive jury verdict. The Court dismissed the fiduciary duty claim, holding as a matter of law that OSI had failed to establish that L-3 had entered into a fiduciary relationship with OSI. Rather, the appeals court said, the two parties had contemplated a mutually beneficial transaction, and there was no reason to conclude that L-3 owed OSI the high level of obligation that is characteristic of a fiduciary duty.
"An oral agreement modifying a non-binding letter of intent is not how we expect sophisticated corporations represented by counsel to create such a solemn obligation as a fiduciary duty, especially when there is no evidence of even an oral acknowledgment that L-3 was agreeing to act in a fiduciary capacity towards OSI," the court concluded.
Jenner & Block Partner Donald B. Verrilli, Jr., argued the case in the appeals court. He led a team that also included Partners Ian Heath Gershengorn and Elaine J. Goldenberg, and Associates Ginger D. Anders, Melissa A. Meister and Jessica Ring Amunson.
Practice Groups:
Appellate and Supreme Court Practice
Defense & Aerospace
Government Contracts
Litigation Department
6/27/2008
Firm Wins Access to Education Department Documents for Pro Bono Client
Jenner & Block recently completed the last step of an important Freedom of Information Act victory on behalf of the Firm's pro bono client, People For the American Way Foundation (PFAWF). The Department of Education agreed to produce disputed documents concerning the Department's administration of the federally-funded D.C. school voucher program, and also to pay attorneys' fees. The team was led by Associate Elizabeth L. Kendall and supervised by Partner Larry P. Ellsworth. Former Associate Elizabeth Porter initiated the case in 2005.
In 2005, the Firm, on behalf of PFAWF, filed the FOIA action against the U.S. Department of Education, which was claiming that it was entitled to withhold almost all communications with non-agency organizations about the administration of the controversial voucher program. The government adopted this interpretation of FOIA immediately following PFAWF’s publication of a report that was critical of the Department's implementation of the voucher program. Before the report, the government had been disclosing documents to PFAWF under a more conventional interpretation of FOIA.
After a lengthy court battle, Jenner & Block and PFAWF persuaded Judge Colleen Kollar-Kotelly of the United States District Court for the District of Columbia to grant summary judgment to PFAWF and flatly reject the government's interpretation of the FOIA. The government sought the customary stay of the Court's order to produce the documents pending its appeal of the decision. However, in light of the repeated delays that the government had caused and the public importance of the disputed documents, the District Court granted PFAWF’s motion for only a limited stay, contingent on the government seeking expedited appeal.
The D.C. Circuit granted expedited consideration of the case. The day before its brief would have been due, the government agreed to settle the case with PFAWF and dismissed the appeal. Thereafter, the government claimed there had been no settlement in principle. Ultimately, the Court granted PFAWF’s motion to force the government to bring an authorized decisionmaker before a magistrate judge for settlement talks, and after a mediated conference before the magistrate judge, a settlement was reached that provided PFAWF with all additional third party documents.
Practice Groups:
Litigation Department
6/27/2008
Mascherin Instrumental in Shaping Innovative 2-Year Northwestern Law Program
Partner Terri L. Mascherin played a significant role in shaping the recent, highly publicized decision by the Northwestern University School of Law to initiate an innovative program that permits some students to obtain a J.D. degree in two years instead of the usual three.
Ms. Mascherin, an alumna of the law school, co-chaired the strategic planning working group that Law School Dean David Van Zandt convened to help design the new curriculum, which was announced on June 20, 2008.
Northwestern will become the first top-tier law school to initiate a two-year program. It will be limited to 25 to 60 students each year and will emphasize communication, teamwork, strategic understanding, basic quantitative skills, cross-cultural work, project management and leadership in addition to the traditional law school focus on case law analysis.
“In other words, the plan stresses competencies to which most law schools pay little attention but industry leaders agree are critical for success in today’s legal careers,” said Dean Van Zandt, in a statement. “Twenty-first century lessons about what it means to think like a lawyer will be combined with programs that instill critical core competencies to allow our students to work with others and help their clients and their organizations as never before.”
Ms. Mascherin was quoted in a Chicago Tribune article, as well as on the Wall Street Journal's website, about the new program. She told the Tribune that graduates today need “a better understanding of how businesses function” and need to be better prepared to “write a two-page memo, make a presentation, or work with others.”
“We don't intend to put out a generation of accountants or business analysts, but we do hope to put into the workplace alumni who have a better grounding in the kinds of issues that they will face from their client's perspective,” Ms. Mascherin told the Tribune. “Clients don't like lawyers who can spout legal analysis but can't do strategic analysis.”
Ms. Mascherin has been active for many years with the law school. She is Chair of the Law School Board of the law school and was the keynote speaker at the school's 2007 commencement ceremony. In 2001-2002, she chaired the Board of the Law School Fund.
For more information, please click here to view the Northwestern press release about the plan.
Practice Groups:
Litigation Department
6/18/2008
Gray Addresses Attendees at Investiture Ceremony for the Honorable John Daniel Tinder
Jenner & Block Partner Richard J. Gray, who serves as the Seventh Circuit representative on the American Bar Association’s Standing Committee on the Federal Judiciary, spoke at the Investiture Ceremony for John Daniel Tinder, who was sworn in as a Circuit Judge for the United States Court of Appeals for the Seventh Circuit on Friday, April 11 at the United States Courthouse in Indianapolis.
Speaking on behalf of the American Bar Association’s Standing Committee on the Federal Judiciary, Mr. Gray noted in his remarks that the committee found John Tinder well qualified for membership on the Seventh Circuit Court of Appeals. "John Tinder earned this well-qualified rating," Mr. Gray said. From 1987 until his elevation to the Seventh Circuit, Judge Tinder served as a United States District Court Judge for the Southern District of Indiana.
The ABA Standing Committee on the Federal Judiciary consists of 15 members – two members from the Ninth Circuit, one member from each of the other 12 federal judicial circuits and the chair. The Committee has been evaluating the professional qualifications of all persons nominated for appointments to the federal bench, including the U.S. Supreme Court, the U.S. Circuit Courts of Appeals, the U.S. District Courts and the four territorial courts, for more than 50 years. The Standing Committee’s evaluation of nominees is unique and the only nonpartisan, non-ideological peer review of the professional qualifications of prospective federal judges. The Committee evaluates a nominee’s integrity, professional competence and judicial temperament. Neither ideology nor politics is considered. Once an evaluation is completed, the Committee sends its report to both the Senate Judiciary Committee and to the administration.
Pictured: Mr. Gray speaking at the event.
Practice Groups:
Complex Commercial Litigation
Insurance Litigation and Counseling
Intellectual Property
Litigation Department
6/17/2008
Charge Dropped in Pro Bono Free Speech Case
A Kane County judge has granted the Village of Carpentersville's request to dismiss a disorderly conduct charge against a village trustee who maintained that the case infringed her First Amendment right to free speech.
Carpentersville police issued a ticket to Trustee Linda Ramirez Sliwinski on April 5, charging her with disorderly conduct stemming from a verbal altercation with neighbors. Mrs. Sliwinski was alleged to have used the word "monkeys" to refer to a group of African-American children who were climbing in a tree near the trustee's property.
"She never called the children 'monkeys,'" said Gabriel A. Fuentes, a Jenner & Block partner who took the case pro bono. "Even if she had, those words would have been protected speech under the First Amendment."
The village dismissed the case shortly after Jenner and Block filed a motion to dismiss the complaint as violative of the First Amendment. A village official said the village was having difficulty communicating with the allegedly complaining witnesses.
"This case died on the vine, as it should have," Fuentes said. "The First Amendment protects all sorts of speech, including words that some might find argumentative, insulting, or offensive. The prosecution was unconstitutional and was going nowhere."
Practice Groups:
Litigation Department
6/11/2008
Second Circuit Amicus Brief Argues for Change in Law of Vicarious Corporate Criminal Liability
On June 6, 2008, Jenner & Block filed an amicus brief before the Second Circuit advocating new limits on the scope of corporate criminal liability. Supporting reversal of the criminal conviction of the corporate defendant, Ionia Management, the brief urges the court to follow the dictates of three recent Supreme Court decisions that severely restrict the application of respondeat superior. The brief maintains that the failure of lower federal courts to heed the principles of these cases, and the misreading of the single Supreme Court decision 99 years ago addressing criminal corporate liability, has resulted in the anomalous situation that it is currently easier to impute liability in a criminal, rather than a civil, case.
The brief was filed on behalf of the Association of Corporate Counsel, the U.S. Chamber of Commerce, the National Association of Criminal Defense Lawyers, the National Association of Manufacturers, the New York State Association of Criminal Defense Lawyers, and the Washington Legal Foundation.
The amicus brief was filed by a Jenner & Block team that included Partners Andrew Weissmann and Richard F. Ziegler and Associates Joseph J. McFadden and Luke P. McLoughlin.
Please click here to view the amicus brief.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
White Collar Defense and Investigations
5/29/2008
Firm Wins Product-Liability Case on GM Trailblazer
On May 23, 2008, a Jenner & Block team won a product-liability jury trial for Firm client General Motors Corporation in the Circuit Court of Cook County before Judge Dennis Burke.
The case involved a 2002 Trailblazer that had been subjected to a recall for a defect in the transfer case control module, which regulates the vehicle's ability to shift between two-wheel drive and four-wheel drive. As a result of the defect, the transfer case could shift into a neutral setting, which would allow the vehicle to roll in "park" when the parking brake was released. The defect also could cause a driver to lose control of the vehicle at higher speeds.
General Motors corrected the defect by reprogramming the control module, and the correction was in fact made on the Plaintiffs' vehicle.
However, the Plaintiffs contended that the recall and the correction did not correct the defective condition in their vehicle and claimed that one of the Plaintiffs was seriously injured when her vehicle rolled in "park" after the parking brake was released.
The Jenner & Block team presented a defense asserting that the accident occurred as a result of the Plaintiff shifting the transmission into reverse before releasing the parking brake. The team offered evidence concerning the history of the Plaintiffs' Trailblazer and the absence of field incidents involving vehicles that were subject to the recall.
Both sides presented expert witness testimony in a one-week trial. The jury deliberated for less than 90 minutes before returning a complete defense verdict.
The Jenner & Block team was composed of Partner Philip L. Harris and Associates Brian C. Haussmann and Sara S. Ruff.
Practice Groups:
Litigation Department
Products Liability and Mass Tort Defense
5/28/2008
Firm Secures Significant Arbitration Victory in Patent Case
Jenner & Block secured a significant victory for inventor Ole K. Nilssen when a federal court recently confirmed a $23.4 million arbitration award against MagneTek, Inc. for infringement of one of the inventor’s patents for electronic lighting ballasts, used to power fluorescent lamps.
An arbitrator in 2005 had awarded Mr. Nilssen the $23.4 million after a 2002 district court ruling that found MagneTek had infringed on some of the products in question. When Magnetek declined to pay the award, Mr. Nilssen filed a petition with the U.S. District Court for the Northern District of Illinois for confirmation of the award. Magnetek subsequently filed a petition to vacate the award.
In its ruling granting Mr. Nilssen’s petition to confirm the award, the court rejected MagneTek’s argument that the court did not have subject matter jurisdiction to confirm the award, finding “a clear indication by the parties” that they had contemplated court confirmation.
The court also denied MagneTek’s claim that the arbitration award was obtained by fraud. According to the ruling, MagneTek had argued that it entered into a settlement agreement providing for arbitration without realizing until it conducted an investigation after the arbitrator's ruling that Mr. Nilssen had allegedly concealed relevant facts from the U.S. Patent and Trademark Office. “The time for MagneTek to raise its concerns about Nilssen’s alleged misconduct was at the arbitration proceedings,” said the ruling. “MagneTek cannot use such an investigation as a fallback position to obtain a second bite at the apple and have this court nullify the outcome of a fully arbitrated dispute.”
“This decision is important because it preserves arbitration as an effective means of alternative dispute resolution in situations where a patent-in-suit is or can be asserted against more than one defendant,” said Jenner & Block Partner Raymond N. Nimrod, who, with Lawrence S. Schaner, led the Firm’s team on this matter.
In addition to Messrs. Nimrod and Schaner, Jenner & Block Partners Aaron A. Barlow, Jonathan Hill and Reginald J. Hill and Of Counsel John E. Titus served as counsel to Mr. Nilssen.
Practice Groups:
International Arbitration
Intellectual Property
Litigation Department
Related Document(s):
Please click here to view the court's opinion.
5/16/2008
California Supreme Court Cites Firm's Amicus Brief in Landmark Marriage Case
The landmark gay-marriage case decided on May 15, 2008, by the California Supreme Court quoted and relied on an amicus curiae brief filed by Jenner & Block attorneys on behalf of national organizations that represent mental-health professionals.
The state's highest court found that the California state constitution requires that gay men and lesbians be granted the right to marry. In a 4-3 ruling, it found no legally justifiable reason why the state should withhold the institution of marriage because of a couple's sexual orientation.
"In contrast to earlier times, our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," Chief Justice Ronald George wrote for the majority.
The Jenner & Block team, led by Partners Paul M. Smith and William M. Hohengarten and Associate Anjan Choudhury, filed a brief with the court on behalf of the American Psychological Association, the California Psychological Association, the American Psychiatric Association, and National Association of Social Workers and the National Association of Social Workers, California Chapter as amici curiae on behalf of Plaintiffs and Respondents. Former associate Eric Berger and paralegal coordinator Cheryl L. Olson also worked on the brief.
The brief drew heavily on extensive psychological research on the nature of heterosexuality and homosexuality, and the American Psychological Association and its general counsel, Nathalie Gilfoyle, and other APA staffers, working closely with the Jenner & Block team, played a major role in compiling that research and incorporating it in the brief.
The court's decision quoted extensively and favorably from the amicus brief, noting that the brief points out that "sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy ... sexual orientation is not merely a personal characteristic that can be defined in isolation. Rather, one’s sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity.”
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
5/14/2008
Firm Wins Reversal of Homicide Conviction of South Carolina Woman
In a major pro bono victory for the Firm and its client, Regina McKnight, the highest court of South Carolina ruled on May 12, 2008, that Ms. McKnight did not have a fair trial when she was convicted in 2001 of homicide by child abuse after she suffered a stillbirth. The court found that Ms. McKnight's trial counsel had provided inadequate assistance to her in several ways. It reversed the conviction and ordered a new trial.
Ms. McKnight gave birth to a stillborn baby in 1999. Although evidence showed that she had two inflammatory conditions that commonly cause stillbirth, she was charged with homicide by child abuse under the novel theory that her use of cocaine while pregnant manifested an "extreme indifference to human life" and that her use of the drug had caused the death. At a second trial, she was convicted and sentenced to 20 years in prison, with eight years suspended.
A Jenner & Block team of attorneys took over the case on appeal. Jodie Kelley, then a Firm partner, argued the case to the South Carolina Supreme Court. When that court rejected her arguments because they had not been raised below, Partner Julie M. Carpenter and Associate Matthew Hersh continued to pursue the case by seeking post-conviction relief. They presented the testimony of a leading South Carolina forensic pathologist that there is no credible medical basis for concluding that cocaine use had caused the stillbirth, especially in light of the two inflammations.
Although the Firm initially lost in the post-conviction relief proceeding, the South Carolina Supreme Court granted certiorari after two and a half years. In reversing, the court found several prejudicial errors, each one amounting to ineffective assistance at trial.
The state Supreme Court noted that the only expert witness presented by Ms. McKnight's trial counsel used an analysis that "mimicked that of the State's star expert" because, while not declaring that cocaine use caused the stillbirth, she ruled out all other plausible causes. This, the Court said, "represents counsel's inadequate preparation for trial rather than a valid trial strategy" and was thus inadequate representation.
The Court also found that trial counsel had not adequately investigated the link between cocaine and stillbirth that prosecutors had alleged. In the absence of opposing testimony, the Court said, it was likely that "the jury used the adverse and apparently outdated scientific studies propounded by the State's witnesses" that found such a link. This also amounted to ineffectiveness of counsel, the Court said.
"This decision matters a great deal, because similar cases have been brought across the country on the theory that where there is cocaine, there is causation. But medical associations argue consistently that this theory has little if any basis in fact, and convictions in such cases are based largely on medical misinformation and prejudice," Ms. Carpenter said.
Practice Groups:
Litigation Department
5/9/2008
Four Jenner & Block Attorneys Contribute to Highly Anticipated Book on Cross-Examinations
Partners Robert L. Byman, Chris C. Gair, Charles B. Sklarsky and Anton R. Valukas each authored chapters in the recently published book Your Witness: Lessons on Cross-Examinations and Life from Great Chicago Lawyers.
In the book, “top trial lawyers share the secrets of the most engaging, difficult, and dramatic aspect of their work – cross-examination,” according to the publisher.
In “Crossing with Technology,” Mr. Byman recounts a notable cross-examination in which he used a projection screen, a spreadsheet and a calculator in a cross examination to successfully engage the jury on otherwise “dry” financial testimony. “Our cross examinations, when assisted with a little technology, can become works of art,” he notes.
“Cross examination is not got the frail or faint of heart,” according to Mr. Gair in his chapter titled, “Life is Short – Take a Chance.” In the piece, he recalls the scenarios and strategies that have led him to advice practitioners to sometimes go against conventional wisdom – take a chance – and ask the questions for which they do not know the answer.
In the chapter “Digging Deep,” Mr. Sklarsky emphasizes the importance of conducting a thorough investigation of the witness, their testimony and the matters about which they are testifying. “Very often when you dig deep enough, you hit pay dirt,” he notes.
Mr. Valukas’ chapter, titled, “Arrogance: My Favorite Sin,” focuses on overstatements and embellishments made by witnesses on the stand, and says that this “arrogance” often can provide an opportunity to prove the witness lied under oath. “Being able to assert to the jury in closing arguments that a witness has lied in the courtroom is compelling,” he notes.
The book, published by Law Bulletin Publishing Company, has received numerous accolades and advance praise. The book is an “engaging collection of essays” and its “lessons are enthralling as they can be applied to life as much as the high art of courtroom cross-examination,” according to Kirkus Reviews. Your Witness: Lessons on Cross-Examinations and Life from Great Chicago Lawyers was also profiled in national publications like the Chicago Tribune and the Baltimore Sun, with additional mentions by organizations like the American Bar Association and the Corporate Crime Reporter. Please click here to view additional advance reviews.
The royalties of all 50 authors in the hardcover publication are being donated to the Chicago Bar Foundation, the charitable arm of the Chicago Bar Association. Through grants, advocacy and other programs, the Chicago Bar Foundation advances the work of pro bono and legal aid organizations; enables dedicated lawyers to pursue careers in legal aid and help pro bono attorneys most effectively supplement their efforts; and makes the courts and legal system more user-friendly and accessible for all.
Please click here to visit the publisher’s website.
Image of the book and the table of contents appear with the permission of Law Bulletin Publishing Company.
Practice Groups:
Litigation Department
White Collar Defense and Investigations
Related Document(s):
Please click here to view the cover and table of contents.
5/8/2008
Firm Helps Secure $110 Million Copyright Verdict for Motion Picture Studios
In a major win for Firm clients a federal judge in Los Angeles has found the operators of the TorrentSpy website to have willfully infringed copyrights owned by the major motion picture studios. The Court ordered the defendant to pay over $110 million in damages, and enjoined defendant from any further infringement of the motion picture studios’ copyrights.
Last December, U.S. District Judge Florence-Marie Cooper of the Central District of California granted the motion picture studios’ motion for terminating sanctions after finding that the TorrentSpy owners had engaged in widespread destruction of evidence and other severe discovery misconduct. As a result, the Court entered default against defendants, establishing their liability for willful copyright infringement.
On May 5, 2008, the judge rendered a final judgment against the site, and awarded damages of $110,970,000.
This is one of several cases that a Jenner & Block team, led by Partners Steven B. Fabrizio, Katherine A. Fallow and Gianni P. Servodidio, is pursuing on behalf of the motion picture studios against pirate “BitTorrent” websites that unlawfully encourage and facilitate the widespread infringement of the world’s most popular entertainment content, including movies and television programs.
“This substantial money judgment sends a strong message about the illegality of these sites,” said Dan Glickman, Chairman and CEO of the Motion Picture Association of America. “The demise of TorrentSpy is a clear victory for the studios and demonstrates that such pirate sites will not be allowed to continue to operate without facing relentless litigation by copyright holders.”
Mr. Fabrizio applauded the decision. “The Court has made very clear that copyright infringers who engage in such discovery misconduct, do so at their own peril.”
Practice Groups:
Creative Content
Intellectual Property
Litigation Department
5/7/2008
Firm Wins Significant Appellate Victory for Washington Mutual Bank
Jenner & Block achieved a significant victory for Firm client Washington Mutual Bank when an Ohio appellate court reversed a lower court’s dismissal of the client’s foreclosure complaint and remanded the case for further proceedings.
The Firm was retained by Washington Mutual on an emergency basis three weeks prior to oral argument, after appellate briefing had been completed. The trial court below had dismissed the otherwise routine residential foreclosure complaint with prejudice, holding that Washington Mutual was barred by state law from filing suit in Ohio and, therefore, Washington Mutual lacked standing and the Court lacked subject matter jurisdiction. Washington Mutual had appealed on federal preemption grounds.
The Firm’s team first persuaded the Ohio appellate court that appellate briefing should be reopened and oral argument adjourned. In supplemental appellate briefing, the Firm argued the substantive preemption issue and also identified a key procedural error by the trial court. Partner John P. Wolfsmith then argued the case before the appellate court.
After a de novo review of the procedural issue, the appellate court held that the trial court erred as a matter of law and reversed and remanded the case for further proceedings. Among other things, the court determined that Washington Mutual had standing to pursue the appeal and that the trial court erred in its analysis of subject matter jurisdiction.
“Our review of the record reveals no support for the proposition that the trial court lacked subject matter jurisdiction over the foreclosure action,” the court ruled.
As a result of the decision, Washington Mutual can now assert the controlling federal preemption argument, according to the Firm's team. The trial court's decision that Washington Mutual was barred from filing suit had been rendered without consideration of the federal preemption argument.
In addition Mr. Wolfsmith, the Jenner & Block team on this case included Partner Barry Levenstam, Co-Chair of the Firm's Appellate and Supreme Court Practice, and Associates Matthew R. Devine and Sapna G. Lalmalani.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
4/30/2008
Fabrizio Selected by Legal Times as One of Ten 'Leading Lawyers' in DC for Copyright and Trademark Law
Partner Steven B. Fabrizio has been chosen by Legal Times as one of the ten Leading Lawyers in the area of Copyright and Trademark Law.
Each year, Legal Times selects Leading Lawyers in four different practice areas, based on nominations made by their firms, independent research conducted by the newspaper's editors and reporters, references from clients and others, and public sources. All of the selectees for a given year are honored at a gala reception in the fall.
All the lawyers recognized by Legal Times in its April 28, 2008 issue, “belong to a subset of IP attorneys known for their wise advice in copyright disputes and their expert handling of trademark matters,” the paper wrote.
"As new technologies stretch the dimensions of copyright law, Steven Fabrizio has been front and center in defining the shape,” Legal Times said. The article focused on his experience in cutting-edge copyright enforcement cases, such as the landmark Napster case and more recent cases including those against Grokster, MP3.com, Kazaa, iMesh, eDonkey, and MP3tunes, among others.
The newspaper also noted Mr. Fabrizio’s work as Vice President of anti-piracy for the Recording Industry Association of America and his role in founding the organization’s in-house litigation department. In addition, Mr. Fabrizio’s representation of the RIAA in an infringement suit against Usenet.com Inc, which has allegedly allowed users to post copyrighted recordings online, was also noted in the article.
“He has an extraordinary combination of tenacity and judgment,” Kenneth Doroshow, senior vice president of litigation and legal affairs at the Recording Industry Association of America, told Legal Times. “He’s just terrific.”
Jennifer Pariser, head of litigation for Sony BMG Music Entertainment, told Legal Times: “He really understands the client’s business, and therefore, he’s well positioned to give advice that goes beyond the four corners of any particular litigation.” “He’s a great lawyer, and he’s done a marvelous job for the industry,” she added.
Mr. Fabrizio’s work on behalf of the motion picture industry was also acknowledged in the article. Dean Garfield, chief strategy officer at the Motion Picture of Association, was quoted in the article, calling Mr. Fabrizio “an exceptional lawyer with exceptional personal skills,” praising his combination of legal knowledge, experience, and client service.
Stanley Pierre-Louis, associate general counsel at Viacom, Inc., told Legal Times that he is impressed by Fabrizio’s ability to “see where a case is going and the potential pitfalls. He’s able to advise clients how to achieve the goals that they are really trying to achieve.” Mr. Pierre-Louis added, “He’s able to deliver in a way that makes you proud to have him as your lawyer. And he makes you look good as an in-house lawyer.”
Practice Groups:
Creative Content
Intellectual Property
Litigation Department
Related Document(s):
Please click here to view the article.
4/28/2008
Weissmann Appointed By Federal Court To Monitor Additional Gun Dealers
A federal court appointed Jenner & Block Partner Andrew Weissmann to be the Special Master to monitor the firearm sales activity of several additional gun dealers who recently settled in connection with civil suits brought by the City of New York against numerous gun dealers. Mr. Weissmann, along with Associates Matthew W. Alsdorf and Joshua A. Block, will now monitor a total of 16 gun dealers across the country.
New York City had filed two lawsuits in 2006 against numerous gun dealers across the country as part of an effort to curtail the flow of illegally obtained firearms into the city. As part of the dealers’ settlement agreement, Mr. Weissmann, along with Messrs. Alsdorf and Block, have monitored gun dealers' operations to ensure that their practices comply with federal, state, and local law. The monitor has broad powers, including unlimited review of firearms-related records, which include trace requests and multiple handgun sale reports, as well as the ability to conduct unrestricted inspections of all firearm inventories. Any dealers found by Messrs. Weissmann, Alsdorf, and Block to have participated in an illegal gun purchase or otherwise failed to comply with the settlement order may be required to pay various penalties.
Mr. Weissmann, the former Enron Task Force Director and former Chief of the Criminal Division for the U.S. Attorney’s Office for the Eastern District of New York, was previously appointed as Special Master to monitor other dealers who had settled in connection with these suits.
For more information, please click here to view a press release from the City of New York.
Practice Groups:
Litigation Department
White Collar Defense and Investigations
4/16/2008
DeBruin Argues in Supreme Court on RICO Issue
On April 14, 2008, Partner David W. DeBruin argued a civil RICO case in the United States Supreme Court. The issue posed by Bridge v. Phoenix Bond & Indemnity Co., was whether plaintiffs who did not rely on but were nonetheless harmed by false statements made to third parties can establish the needed proximate cause in a civil RICO action.
The case grew out of the system of property tax lien auctions in Cook County, Ill. The county auctions the liens each year of property-owners who don't pay their tax bills. Competing bidders often reduce their bids for the same property to the same amount in a competitive process. The routine result is a tie and essentially, an allocation of the properties to bidders by a lottery system.
The respondents in this case, who are Jenner & Block's clients, allege that the petitioners used a scheme to pack the lottery with related entities, hiding the fact that they are actually in collusion. As a result, the petitioners fraudulently acquired liens that they would not have acquired otherwise, and that would have been assigned to respondents and other tax buyers under the rotational apportionment system. To effectuate this scheme, petitioners caused the mails to be used when property owners were sent the required notices. The respondents and other tax buyers, rather than the county or property owners, were the ones who suffered financial harm from this fraud.
The respondents brought a civil RICO suit under these facts. The question it presented was whether respondents — the direct and immediate victims of petitioners’ mail fraud scheme — are nonetheless barred from pursuing a civil RICO claim merely because a third party (the county), and not respondents, received and relied upon the fraudulent statements. The Seventh Circuit sided with the respondents and found that RICO is applicable here.
"Nothing in the text of RICO mandates that the victim of the scheme rather than the party through whom the defendant operates must rely on the defendants’ fraud," Mr. DeBruin contended in the Jenner & Block brief.
At oral argument, Mr. DeBruin told the Court, in response to a question from Chief Justice John Roberts Jr., "In this case there is a direct relation between the violation of mail fraud alleged, the predicate acts, and the injury that Respondents have incurred."
In response to another question from Chief Justice Roberts, Mr. DeBruin noted that "whereas here the foreseeable and clear effect of defendant's actions is to work a direct injury on competitors and, in fact, on no one else, not on the county, not on the property owners, but only on competitors, that was within the ambit of what Congress sought to protect in RICO."
This is the third case that Jenner & Block attorneys have argued before the Supreme Court in the current 2007-2008 Term. The case is Bridge, et al. v. Phoenix Bond & Indemnity Co., et al. No. 07-210.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
4/15/2008
Epstein and Knapp Discuss "When Contracts Go Sour" at Bar Forum
More than 70 in-house counsel from the Richmond, Virginia area heard Jenner & Block Partners Jerome L. Epstein and Tobias L. Knapp discuss “When Contracts Go Sour: Drafting and Due Diligence Lessons Learned From Litigation” on April 8, 2008, at a forum sponsored by the Washington Metropolitan Area Corporate Counsel Association (WMACCA).
In their remarks, Mr. Epstein, a commercial litigator, and Mr. Knapp, a transactional lawyer, focused on drafting and due diligence strategies for mergers and acquisitions and other business transactions to lessen the risk that contract disputes lead to costly litigation. They focused on several common contractual clauses, such as disclaimers to ward off fraud claims, "material adverse change," specific performance and other termination clauses, “best efforts” clauses, arbitration clauses, and indemnification and limitation of liability clauses.
According to Mr. Epstein, corporate counsel should care whether a claim is brought as a fraud claim rather than as breach of contract because many contracts contain limitations of liability, but "if you are sued for fraudulent inducement to enter into the contract, the limitation-of-liability clause won’t help you."
"The courts say almost universally that a merger and integration clause [alone] will not be sufficient to defeat a fraudulent inducement claim," Mr. Epstein added.
Mr. Knapp noted that in view of the recent URI v. Cerberus decision's application of the "forthright negotiator principle," parties to a transaction should be aware that the record of their negotiations and drafts of documents could be admitted as extrinsic evidence of the meaning of key purchase agreement provisions that are found to be ambiguous. As a result, it may be important to refute statements by the other side that are contrary to your interpretation of an agreement in order to ensure your silence is not viewed later as an acceptance of the other party's understanding of the agreement.
Mr. Epstein said that a defendant “should not rule out a motion to dismiss” in responding to a fraud claim. “Even though these can be intensely factual disputes, there have been cases in which motions to dismiss have been granted. Also, it gives you a good peek at what the other side’s arguments will be, since you will be able to look at their response to the motion to dismiss” before discovery is complete.
Mr. Knapp said that the specific drafting of MAC clauses can be critical to the leverage either party will have if events between signing and closing compel a renegotiation or an attempt by the buyer to walk away from the deal. Carving out from the MAC clause events such as general changes in an industry or in the economic climate can make all the difference in whether a buyer can successfully renegotiate or terminate a transaction, as shown by the recent Genesco decision.
The luncheon event took place at the offices of Apex Systems, Inc. in suburban Richmond. With 1,600 members, WMACCA is the leading professional association for the in-house community in Washington, DC, Virginia, and suburban Maryland. It is a chapter of the Association of Corporate Counsel (ACC).
This was the second time that Jenner & Block partners spoke to a WMACCA forum on this topic. In February 2008, Mr. Epstein and Partner Les H. Lepow addressed similar themes with nearly 90 lawyers in the Tysons Corner area, near Washington, DC.
Practice Groups:
Corporate
Litigation Department
4/11/2008
Masters Speaks at Youth Law Fair in DC
On March 8, 2008, Partner Lorelie S. Masters gave an introductory talk at the Ninth Annual Youth Law Fair at the Moultrie Courthouse in Washington, DC. The fair provides DC high school students with an opportunity to discuss legal issues relevant to their lives, to participate in mock trials as judges, prosecutors, defense attorneys, witnesses, and jurors, and to learn about the American legal system.
The program was co-sponsored by the DC court system and by the Litigation Section and other sections of the DC Bar. Ms. Masters, an active member of the bar's Litigation Section, has participated in the law fair for several years.
The theme of the program this year was "Internet Issues -- Dangers of Social Networking and Blogs." The mock trials covered criminal issues related to information placed on blogs or on social networking sites.
The accompanying photos, provided here courtesy of the DC Courts, represent a few of the scenes at the youth law fair.
Pictured:
Top: Ms. Masters
Middle and Bottom: Students participating in Youth Law Fair
Practice Groups:
Litigation Department
4/3/2008
Firm Urges Supreme Court to Consider Interests of Child Witnesses in Case Concerning Scope of Confrontation Clause
Jenner & Block attorneys recently co-authored an amicus brief on behalf of the American Professional Society on the Abuse of Children and the National Association of Counsel for Children in a Supreme Court case concerning the scope of the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. The brief contends that the Court’s decision in Giles v. California will have important consequences for the admissibility of testimonial hearsay from abused and traumatized child witnesses who are too young or too scared to testify, and urges the Court to articulate the constitutional standards in a way that prevents criminal defendants from benefiting from the incapacities of child witnesses.
Under recent Supreme Court decisions, a criminal defendant’s right under the Confrontation Clause to cross-examine witnesses against him extends to all testimonial hearsay, unless an equitable exception existed at common law at the time the Constitution was framed. The question in Giles v. California is the scope of one such exception – forfeiture by wrongdoing. The Court will decide whether the forfeiture by wrongdoing exception is limited to circumstances when defendants both cause and specifically intend to create a witness’s absence from the courtroom, or whether it reaches more broadly to other situations in which the defendant may take advantage of a witness’s likely unavailability or incapacity to testify.
Although the Giles case does not present the Court with the precise question of how the Confrontation Clause applies to testimonial hearsay of child witnesses, the amicus brief urges the Court to recognize the profound ramifications its decision may have on abused child witnesses. The brief first reviews the historical evidence from the time of the Constitution’s framing to show that common law courts routinely admitted unconfronted children’s out-of-court reports of abuse. The brief then shows that, in contrast, lower courts applying the Supreme Court’s recent Confrontation Clause decisions have routinely excluded such statements or reversed convictions of child abuse and murder defendants on the ground that the out-of-court statements of the young or scared victims or witnesses are wrongly admitted unless the defendant has the opportunity to cross-examine the child.
Jenner & Block Partners Barry Sullivan and Margaret J. Simpson led Jenner & Block's effort, with assistance from Partner Bill S. Forcade, Associates John K. Min, Brian J. Wilson, Brian L. Dougherty, Millicent A. Hoffman, Nicholas A. Kurk, Sapna G. Lalmalani, Michael F. Otto, and Matthew A. Russell. Jenner & Block collaborated on the brief with attorneys from Irell & Manella, Thomas D. Lyon, J.D., Ph.D., University of Southern California, and members of the University of Southern California Law School Class of 2008.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here to view the brief.
3/31/2008
MCCA CLE Expo: Harris Moderates Panel on Juror Perceptions
The impact of current diversity trends on juror perceptions was explored at a panel titled, “A Look at Changing Juror Perceptions” at the Minority Corporate Counsel Association 7th annual CLE Expo, held March 28 in Chicago.
Partner Philip L. Harris served as moderator of a panel that explored current trends that affect jurors' perceptions of corporate litigants and the changing relationship between demographics and attitudes toward corporations. The panelists were Louis Genevie, Managing Partner of LGA Litigation Strategists; Samantha D. Holmes, Ph.D., R&D Strategic Solutions; and Annie Y.S. Chuang, Partner at Shook, Hardy & Bacon L.L.P.
Mr. Genevie presented data that reveal that the majority of jurors do not find attorneys credible when it comes to telling the truth in the courtroom. For example, his studies show that most jurors believe that attorneys will misstate the truth in order to obtain a favorable result for their corporate client. He also presented surveys of focus group participants that show that the race and gender of jurors impact their decision-making process and perception of the credibility of the trial attorneys
Ms. Holmes presented similar data, adding that in her experience a proper presentation will overcome unfavorable perceptions that jurors may have as voir dire begins.
In general, the panelists discussed how attorneys can overcome a juror’s preconceptions through a credible and convincing legal presentation. They believed that a credible presentation to a jury, created by a diverse legal team with various points of view, may have more impact than the actual race or gender of the attorney trying the case.
Pictured Top (from left to right): Ms. Chuang, Mr. Genevie, Ms Holmes and Mr. Harris
Pictured Bottom (from left to right): Ms. Holmes, Mr. Genevie, Ms Chuang and Mr. Harris
Practice Groups:
Litigation Department
Products Liability and Mass Tort Defense
3/31/2008
Jenner & Block Partners Discuss the Sub-Prime Mortgage Crisis
Expanding litigation related to the sub-prime mortgage crisis and its impact on the business issues facing corporate counsel were the subjects of a recent meeting of the Chicago Chapter of the Association of Corporate Counsel (ACC), held at Jenner & Block’s Chicago office. Partners James L. Thompson and Megan B. Poetzel offered their analysis of the meltdown and the sub-prime litigation that is already underway.
According to recent estimates, the panelists said, sub-prime related losses could total at as much as $400 billion. The panel advised that such losses will lead to numerous lawsuits, as well as related market pressures that could affect nearly any business.
Mr. Thompson and Ms. Poetzel noted that the "first wave" of sub-prime litigation primarily involved lawsuits against originators of sub-prime loans and issuers of securities backed by sub-prime loans. The second wave has expanded to include lawsuits against others less directly involved, including ratings agencies, monoline insurers, securities brokers/investment advisers, corporations that held investments that were negatively impacted by the sub-prime market, home builders, mortgage brokers, appraisers and title agents.
The panel said it is inevitable that more losses will lead to more litigation, and that corporate counsel should monitor the situation to see if the meltdown will touch their businesses. The panel also identified additional areas that may experience increased litigation as a result of the credit crisis, such as Alt-A mortgage loans, auto loans and credit cards.
The ACC is an in-house bar association that serves the professional needs of attorneys who practice in the legal departments of corporations and other private sector organizations worldwide. The Chicago Chapter of the ACC serves the metropolitan Chicago area, as well as Northern and Central Illinois and has over 1,300 in-house counsel members representing leading local, national and international corporations.
Pictured Top (from left to right): Mr. Thompson, Jenifer Robbins, General Counsel, Chief Administrative Officer & Senior Managing Director, FPL Advisory Group, and Ms. Poetzel.
Pictured bottom (from left to right): Ms. Poetzel and Mr. Thompson.
Practice Groups:
Complex Commercial Litigation
Litigation Department
Securities Litigation
3/26/2008
Newkirk Selected by Legal Times as One of Seven 'Leading Lawyers' in DC for Internal Investigations
Partner Thomas C. Newkirk has been chosen by Legal Times as one of the seven "Leading Lawyers" in the area of Internal Investigations/Corporate Governance.
Each year, Legal Times selects "Leading Lawyers" in four different practice areas, based on nominations made by their firms, independent research conducted by the newspaper's editors and reporters, references from clients and others, and public sources. All of the selectees for a given year are honored at a gala reception in the fall.
All the lawyers recognized by Legal Times in its March 24, 2008, issue, are members of "Washington's elite bar of corporate governance experts," the newspaper wrote. These lawyers "have a particular specialty: They run the kind of internal investigations that earn regulators' goodwill."
The article about Mr. Newkirk emphasized his experience and his judgment. "Thomas Newkirk leads the field with almost 20 years at the [Securities and Exchange Commission]," reporter Anna Palmer wrote. "Add to that his stints at the Senate, the Justice Department, and the Energy Department, and it's clear what his clients see in the Jenner & Block partner."
The article also noted that ever since Mr. Newkirk joined the Firm, where he co-chairs the Securities Litigation Practice Group, "none of the cases on which he has labored have gone to trial." That is a high accolade for a lawyer who focuses on internal corporate investigations.
The article referred to Mr. Newkirk's work for clients HealthSouth Corp., Calpine, Emcore Corp., and ScanSource Inc.
The article quoted Gregory Doody, former general counsel of HealthSouth, as saying, "We thought it would be good to have a perspective of someone who had come out of the SEC more recently. We wanted to know what the new world was like, at least from the [SEC] staff perspective. It was helpful to set strategy and understand the way they were thinking." It also quotes John Ellsworth, general counsel of ScanSource, as saying, "It's very apparent that he spent [nearly] 20 years at the SEC. He's an excellent counselor."
At the SEC, Mr. Newkirk helped lead the SEC's cases against former Tyco CEO Dennis Kozlowski, financier Michael Milken, former Sunbeam CEO Albert J. Dunlap, and many other highly publicized cases.
Practice Groups:
Litigation Department
Securities Litigation
Related Document(s):
Please click here to view the article.
3/26/2008
Jenner & Block Sues Accounting Firm for $550 Million on behalf of Sentinel Bankruptcy Trustee
Jenner & Block's team representing Frederick Grede, the trustee in bankruptcy of Sentinel Management Group, has filed a $550 million lawsuit against McGladrey & Pullen, a national CPA firm, in bankruptcy court in Chicago. The complaint alleges that the accounting firm, which performed the 2006 audit for Sentinel, "failed to satisfy the most basic standards of the accounting and auditing profession" and "substantially contributed to and caused hundreds of millions of dollars of losses and related damages." The firm certified financial statements that "materially misstated Sentinel's assets" and participated in a scheme to siphon money to Sentinel's CEO, the complaint said.
Sentinel Management Group, a Northbrook, Illinois-based cash management firm, filed for bankruptcy protection on August 17, 2007, after freezing customer redemptions earlier that week. Sentinel’s records reveal that it has more than $1 billion in liabilities and a significant shortfall in liquid assets available to pay those liabilities. On October 12, 2007, Jenner & Block filed suit on behalf of Mr. Grede against the company’s insiders and affiliates, accusing them of a ‘‘long-term, massive fraud’’ and seeking $350 million plus punitive damages. Earlier in March 2008, Jenner & Block filed suit on behalf of Mr. Grede against the Bank of New York, the bank at which Sentinel maintained customer accounts, seeking more than $500 million in damages.
The Jenner & Block team on this matter includes Partners J. Kevin McCall, Chris C. Gair, Vincent E. Lazar and Catherine L. Steege.
Practice Groups:
Bankruptcy, Workout and Corporate Reorganization
Litigation Department
3/25/2008
Appeals Court Upholds Injunction Against Minnesota Video-Game Law
On March 17, 2008, the U.S. Court of Appeals for the 8th Circuit handed a victory to the Entertainment Software Association and the Entertainment Merchants Association, Jenner & Block’s video-game industry clients, and affirmed a lower court ruling barring the enforcement of a Minnesota law that prohibits persons under 17 years old from p |
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