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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
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
11/3/2009
Jenner & Block Secures Arbitration Award for Constellation Management Group, Inc.
On September 29, Jenner & Block secured a victory for Constellation Management Group, Inc. (“CMG”), in arbitration proceedings against CVS Pharmacy, Inc. (“CVS”). After a 2-day arbitration that included extensive pre-hearing and post-hearing briefing on multiple issues, the arbitrator found CVS had breached the proprietary-branded product licensing contract it had entered into with CMG, and issued an Interim Award on August 6 to CMG for both current and future commission damages, with respect to both existing and never-developed brands. It is anticipated that these payments will continue for many future years.
The arbitrator found that CMG was the “prevailing party” and granted CMG almost all of its requested attorneys’ fees and costs in its Final Award on September 29.
The Jenner & Block team was led by Partner Joel T. Pelz and Associate Marc D. Sokol and included Partners Robert L. Byman and John F. Ward, Jr.; Associates Som P. Dalal, Jill M. Hutchison, William E. Parker and David P. Saunders; Summer Associate Justin Present; Paralegal Shawn McGee; Project Assistants Lauren Wang and Annette Young and Legal Secretary Kathy Tock.
Practice Groups:
Litigation Department
International Arbitration
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
10/2/2009
Listrom Appointed to ABA Commission on the American Jury Project
Partner Linda L. Listrom was recently appointed of the American Bar Association Commission on the American Jury Project. According to its mission, the Commission works to advance the implementation of the ABA Principles for Juries and Jury Trials by offering guidance to courts, organized bars, and rulemaking bodies in establishing pilot projects. In addition, the Commission wants to reach out to the public, third party interest groups, government officials, national media, and the legal profession as a whole on the importance of jury service and jury reform. The Commission on the American Jury Project consists of 13 members (a chair appointed by the ABA President and three members each appointed by the Judicial Division and the Sections of Criminal Justice, Litigation, and Tort, Trial and Insurance Practice) and an Advisory Committee of 20 members.
Ms. Listrom is a member of the Firm’s Complex Commercial Litigation Practice. Ms. Listrom focuses on complex business litigation and litigation under the False Claims Act. Among her many honors, in 2000 Ms. Listrom was inducted as a fellow in the American College of Trial Lawyers, widely considered the country's premier professional organization for trial lawyers. She has held several leadership positions in the American Bar Association's Section of Litigation and teaches trial advocacy at Northwestern Law School.
Please click here for more information.
Practice Groups:
Complex Commercial Litigation
Litigation Department
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
Related Document(s):
Please click here to view the AmLaw article on this case.
Please click here to view the Legal Times article on this case.
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:
Litigation Department
Creative Content
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
Related Document(s):
Please click here to view a copy of NLJ's profile on Jenner & Block.
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:
Litigation Department
White Collar Defense and Investigations
International Arbitration
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
Related Document(s):
Please click here for the American Lawyer article on the case.
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.
12/2/2008
UNIDROIT General Assembly Approves Model Law on Leasing; DeKoven and Hauck Thanked for Service
At a meeting held in Rome, Italy on November 13, 2008, the 61 member governments of the International Institute for the Unification of Private Law (UNIDROIT) General Assembly gave their unanimous final approval to the UNIDROIT Model Law on Leasing. The General Assembly passed a resolution at the meeting thanking Jenner & Block Of Counsel Ronald DeKoven and Associate Brian Hauck for their extensive service in developing the Model Law.
Messrs. DeKoven and Hauck worked with UNIDROIT for more than three years to create the Model Law on Leasing, which was designed to help countries with emerging and transitioning economies attract the leasing investment necessary for small- and medium-sized enterprises. Mr. DeKoven, a longstanding correspondent of UNIDROIT, served as Reporter for the Model Law, and Mr. Hauck served as the Secretary to the Advisory Board charged with drafting the Model Law and the various committees that participated in its development.
The Model Law will serve as a best practice reference to assist developing countries and countries in transition to a market economy develop modern leasing laws in order to develop their economic infrastructure. Representatives of the International Finance Corporation (IFC), the private-sector arm of the World Bank, announced at the meeting that parts of the draft law had already been used as the basis for national legislation in Tanzania, Yemen, and Jordan, and the full law is before governments for adoption in Afghanistan and the West Bank. The IFC also announced that it will incorporate all the key principles of the Model Law in its new edition of Leasing Guidelines.
UNIDROIT is an independent intergovernmental organization that studies the needs and methods for modernizing, harmonizing and coordinating private and, in particular, commercial law as between countries. In appreciation of Messrs. DeKoven and Hauck’s contributions to developing the Model Law on leasing, UNIDROIT named Jenner & Block the Institute's first-ever 'Corporate Correspondent.' "
Please click here for more information regarding the history of this project.
Practice Groups:
Bankruptcy, Workout and Corporate Reorganization
Litigation Department
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:
International Arbitration
Insurance Litigation and Counseling
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:
Litigation Department
Appellate and Supreme Court Practice
Intellectual Property
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 purchasing or renting video games rated AO or M.
The decision was the latest in a long series of rulings obtained by the Firm in federal courts across the nation, all striking down, on First Amendment grounds, various state efforts to regulate video games based on their content.
In this ruling, Entertainment Software Ass’n v. Swanson, the appeals court followed its recent precedent in Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003), and noted that violent video games constitute protected free speech and that any restriction on their purchase or rental my minors is subject to strict scrutiny by the courts. Jenner & Block was counsel for the video-game manufacturer in the St. Louis case as well.
The state of Minnesota had urged in the current case that the law be upheld on the basis of two state interests -- the importance of safeguarding the psychological well-being and the moral and ethical development of young people.
The appeals court found, however, that the state's evidence fell short of establishing any clear link of a causal relationship between exposure to violence from video games and psychological dysfunctions. Accordingly, the court affirmed the District Court’s grant of a permanent injunction against enforcement of the statute.
Partner Katherine A. Fallow argued the case, and Partner Paul M. Smith and Associates Matthew S. Hellman and Duane Pozza also participated in the briefing.
Please click here to read the court's decision.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Media and First Amendment
3/21/2008
Firm's Amicus Brief Seeks Review of Decision Upholding Controversial Illinois Child-Welfare Procedure
The Firm has filed an amicus curiae brief in the United States Supreme Court, urging the Court to review an appeals court's ruling that upheld the "safety plan" procedure frequently used by the Illinois Department of Children and Family Services to separate children from their parents upon any unsubstantiated allegation of child abuse, without permitting the parents to receive notice of the factual basis for the allegations against them or any type of hearing before or shortly after the plan is imposed.
The pro bono certiorari brief was filed on March 7, 2008, in Dupuy v. Samuels, on behalf of the Illinois State Bar Association. The case is a class action filed by parents who were accused of child abuse, denied the right to live with their children, and denied a hearing. According to the Firm's brief, in a majority of such cases, no child abuse is ever proven.
In July 2007, the U.S. Court of Appeals for the 7th Circuit nevertheless upheld the procedure, which the Illinois Department of Children and Family Services has been employing since 1995. The appeals court found that "safety plans" are not mandatory but are imposed only when parents agree to them. Thus, constitutionally protected Due Process rights are not implicated, the court held.
The parents contend, however, that the plans have a coercive and mandatory effect because if parents do not agree to them, the agency threatens to remove their children from them.
Therefore, the department's actions are "based solely on the unsustainable legal fiction of parental consent," the Jenner & Block amicus brief contends. Under established constitutional law, "individuals' waiver of their fundamental Due Process rights cannot be truly voluntary unless the waiver is free of state coercion and knowingly made."
According to the amicus brief, in order to be permissible under the Due Process clause of the Fourteenth Amendment, the imposition of any safety plan would have to be accompanied by "notice and an opportunity for a meaningful hearing either before or shortly after any significant deprivation" of parental or familial rights. In this case, the "complete absence of Due Process" protections for parents is plainly unconstitutional.
The brief was filed by Partners Robert R. Stauffer, Ian Heath Gershengorn, and Associates Joshua A. Block, Elisabeth Genn and Daniel I. Weiner.
Please click here to view the brief.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
3/20/2008
Jenner & Block Attorneys Participate in ABA’s Twentieth Annual Insurance Coverage Litigation Committee CLE Seminar
Jenner & Block Partners Patricia A. Bronte, Matthew L. Jacobs, and Lorelie S. Masters spoke at the American Bar Association’s Twentieth Annual Insurance Coverage Litigation Committee CLE Seminar held February 27-March 1 in Tucson, Arizona.
The seminar, attended by many of the nation’s top insurance company and policyholder’s counsel as well as industry leaders, explored diverse topics and current views concerning insurance issues including confronting catastrophes, handling experts and a decade by decade overview of developments after Keene Corp. v. Insurance Co. of North America.
Ms. Masters was a panelist at a plenary session titled, “20 Ways to Lose Your Coverage Fight! The Top 20 Don’ts in Handling Claims and Litigating Coverage.” The panel discussed the “don’ts” in responding to and handling coverage claims and in litigating coverage issues as well as recent cases that have addressed the legal consequences of the “don’ts” and practical solutions for avoiding them.
Ms. Bronte moderated a breakout session titled, “Oops - Loss of Coverage for Failure of Policy Conditions: Post-Occurrence Conduct That Voids the Insurer’s Obligations.” The session explored topics including ongoing compliance with policy conditions such as, no admission and cooperation clauses after the insurer has acknowledged coverage. The program also examined how the courts construe these issues. Ms. Bronte presented a paper titled, “Reviving the Lost Art of Apology,” analyzing recent apology legislation that prevents certain types of apologies from being admitted in evidence as admissions of liability by the apologizer.
Mr. Jacobs spoke at a roundtable luncheon titled, “Insuring Hollywood: Coverage Under Entertainment and Media Policies.” The panelists addressed the range of issues surrounding coverage typically found in entertainment and media policies, including liability, D&O, employment and property coverages, exclusions, unique underwriting issues that can arise, and occurrence versus claims made policies. They also discussed policy period and how long a movie or an event can be insured as well as whether a movie, an event, a venue and a cast of characters in a movie or event can be considered insured.
Partner John H. Mathias, Jr., founder of the Insurance Coverage Litigation Committee, and Ms. Masters were honored for their roles as former policyholder side chairs of the committee along with other former chairs and leaders at a banquet on February 29.
Associates Megan A. Byrnes and Jennifer A. Hasch also attended the seminar.
Jenner & Block also hosted a dinner for clients, friends of the firm and other selected attendees on February 28 at the event.
Please click here to view the event brochure.
Practice Groups:
Insurance Litigation and Counseling
Litigation Department
3/18/2008
Four DC Partners Named to Washington, DC, 'Super Lawyers' List
Jenner & Block Partners Larry P. Ellsworth, Lorelie S. Masters, Paul M. Smith, and Donald B. Verrilli, Jr., were recently recognized in the 2008 edition of Washington, DC Super Lawyers, a peer-reviewed guide to the top five percent of attorneys in DC.
Mr. Smith and Mr. Verrilli were listed for their Appellate work and were also listed in the "Top 100," composed of the lawyers, Washington, DC-areawide, who received the 100 highest point totals in the Super Lawyers review and research process. Mr. Smith has argued 13 cases before the U.S. Supreme Court, and Mr. Verrilli has argued 12. In January 2008, each of them argued an important pro bono case before the Court. Mr. Smith argued in Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, challenging the constitutionality of Indiana's requirement that in-person voters present a photo ID, and Mr. Verrilli argued in Baze v. Rees, in which Death Row inmates asked whether the combination of drugs used in Kentucky’s lethal injection protocol amounts to cruel and unusual punishment in violation of the Eighth Amendment.
Ms. Masters was named for Insurance Coverage, and Mr. Ellsworth was named for Securities Litigation. Ms. Masters is a member of the Firm's Insurance Litigation and Counseling practice and is a well-known insurance coverage litigator on behalf of policyholders. She is a former Chair of the Insurance Coverage Litigation of the ABA Section of Litigation and the author of two treatises on insurance coverage. Ms. Masters is also the current president of the Women's Bar Association of the District of Columbia. Mr. Ellsworth, a member of the Firm's Securities Litigation practice, is a former assistant chief litigation counsel at the Securities and Exchange Commission who never lost a case he tried in 12 years at the agency.
This was the second consecutive year that these attorneys received this distinction, having each been recognized in the inaugural edition of Super Lawyers for the nation's capital. Both the 2007 and 2008 lists were compiled through a four-step procedure, beginning with a general survey of thousands of attorneys from the greater Washington, DC, region who have been licensed for five or more years, 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
Insurance Litigation and Counseling
Litigation Department
Securities
3/13/2008
Texas School Board Settles Case by Agreeing to Abandon Controversial Bible Curriculum
In a major pro bono victory for the Firm’s clients, a Texas public school board agreed on March 5, 2008, to settle a lawsuit that the Firm filed last year on behalf of eight residents of Odessa, Texas, who had challenged a controversial Bible study course on constitutional grounds.
The federal court complaint, filed in May 2007, contended that the course, as approved by the school board of Ector County, Texas, violated the plaintiffs' constitutional right to religious liberty by promoting specific religious doctrines to children in their community. The standardized course, created by the National Council on Bible Curriculum in Public Schools (NCBCPS), promotes a specific evangelical Christian interpretation of the Bible. The elective course was being taught in two high schools in Odessa — Permian High School and Odessa High School.
The complaint said that the course was adopted with the primary purpose of advancing religion generally and a specific religious interpretation of the Bible particularly and that the course has "the primary effect of promoting, advancing and endorsing religions generally and a particular set of religious beliefs specifically." This, the complaint said, meant that the course violated the Establishment Clause of the First Amendment.
As part of the settlement, the school board agreed to abandon the curriculum, and it also agreed that if the board decides to offer a different Bible course in the future, the course must follow strict legal standards for objectivity.
The Firm's litigation team was led by Partners David A. Handzo, Craig A. Cowie, William R. Stoughton, and Ronald M. Daignault; Associates Michelle A. Groman and Matthew W. Alsdorf; and Project Assistants Lilia V. Rozhkova, Samuel C. Gray, and Michael J. Mahoney. The Firm filed the suit in conjunction with the American Civil Liberties Union, the ACLU of Texas, and the People for the American Way Foundation.
Practice Groups:
Litigation Department
3/13/2008
Vandenberg Tells DC Bar Forum About Challenges in Human Trafficking Cases
“Of all my pro bono work, the most rewarding is the work I do with victims of human trafficking,” Jenner & Block Associate Martina E. Vandenberg told a DC Bar group of 30 people at a March 5, 2008, panel on “Seeking Justice for Trafficking Victims in the American Courts.”
Ms. Vandenberg, who has pursued several civil cases on behalf of trafficking victims and spoken out against this human rights violation before congressional committees and at NATO, said that the number of civil cases brought by victims in U.S. courts is “shockingly low” even though in 2003, Congress granted them the right to sue the traffickers.
She explained that the first problem in bringing cases is fear. “Victims have legitimate fears that if they sue the traffickers, their families at home will be harmed. Their children, in effect, are hostages,” she said.
A second difficulty is that “it takes enormous energy and willpower to bring a civil case,” Ms. Vandenberg added. Trafficking survivors "are often concerned first about where to live, what to eat. Taking a trafficker to justice is not their first priority, and many don’t speak English.”
A third issue is the “lack of willingness by the U.S. Government to take action” in these cases. It is frequently difficult even to gain the attention of law enforcement officials, who are not universally knowledgeable about trafficking. In the D.C. metropolitan area, diplomatic immunity often foils attempts by civil attorneys to bring perpetrators to justice, and, even in cases that do proceed to judgment, enforcement of those judgments abroad can be extremely difficult.
When someone is convicted of human trafficking in a federal court, Ms. Vandenberg continued, there are “mandatory restitution orders” that require the trafficker to pay back wages and out-of-pocket expenses to the victim. But even there, the victim is not made whole. Mandatory restitution does not include punitive damages and damages for emotional distress. Also, it is not easy to enforce a restitution order, even in the United States. The rate is so low that most victims “end up holding an empty bag.” In those cases, the primary role for the civil attorney is that of “nudge,” trying to put the government’s feet to the fire to undertake more aggressive efforts to collect from the trafficker.
The luncheon forum was sponsored by the International Law Section of the DC Bar. Other speakers were Russell Bikoff, a DC attorney; Robert J. Moossy Jr., director of the Human Trafficking Prosecution Unit at the Civil Rights Division of the U.S. Department of Justice; and Rena E. Cutlip-Mason, director of legal services at the Tahirih Justice Center in the District of Columbia.
Practice Groups:
Litigation Department
3/10/2008
Jenner & Block Secures Appellate Victory for Equity LifeStyle Properties
Jenner & Block recently obtained an important victory for its longstanding client, Equity LifeStyle Properties, Inc. (formerly known as Manufactured Home Communities, Inc.) in the Ninth Circuit Court of Appeals. ELS owns and operates numerous mobilehome communities throughout the country.
ELS filed the suit in 2003 against a county supervisor who was outspokenly critical of ELS business practices. ELS asserted defamation and other state law tort claims among others against the supervisor and the county.
In May 2005, the United States District Court for the Southern District of California denied ELS' state law claims under California's "Anti-SLAPP" statute. The District Court found that the Supervisor's public statements about ELS were not actionable because "no reasonable fact finder" could conclude that the statements implied a provably false assertion of fact. According to the District Court, the Supervisor's statements were "nonactionable opinions."
On March 6, 2008, however, the Ninth Circuit Court of Appeals reversed the District Court's ruling on the defendants' Anti-SLAPP motion. The Ninth Circuit found that a reasonable fact-finder could conclude that many of the Supervisor's statements about ELS were factual in nature and provably false. The Court remanded the case to the District Court for further proceedings on ELS' claims.
This victory follows the Firm's landmark victory for ELS in MHC v. City of San Rafael, in which Chief Judge Vaughn R. Walker of the United States District Court for the Northern District of California invalidated the City of San Rafael's mobilehome rent control ordinance under the United States Constitution. Please click here for more information regarding MHC v. City of San Rafael.
The Firm's team on this matter is led by Partners David J. Bradford and Terri L. Mascherin, and Associates Bradley M. Yusim and Suzanne M. Courtheoux. Mr. Bradford argued ELS' appeal before the Ninth Circuit.
Practice Groups:
Appellate and Supreme Court Practice
Complex Commercial Litigation
Litigation Department
3/4/2008
Jenner & Block Files $550 Million Lawsuit on behalf of Sentinel Bankruptcy Trustee
Jenner & Block's team representing Frederick Grede, the trustee in bankruptcy of Sentinel Management Group, filed a $550 million lawsuit against the Bank of New York, Sentinel's banker yesterday. The complaint alleges that the bank established an improper account structure that facilitated a scheme by certain insiders at Sentinel to defraud the company of hundreds of millions of dollars. In addition to damages, the complaint seeks avoidance of hundreds of millions of dollars in alleged fraudulent transfers to the bank, subordination of the bank's lien to the claims of Sentinel's customers and other creditors, and other relief.
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, 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.
The Jenner & Block team on this matter includes Partners Chris C. Gair, Vincent E. Lazar, Catherine L. Steege, J. Kevin McCall, John F. Kinney, and Daniel R. Murray.
Practice Groups:
Bankruptcy, Workout and Corporate Reorganization
Litigation Department
3/3/2008
Firm Secures Victory for Equity LifeStyle Properties
The Firm has obtained an important victory establishing that a pervasive form of mobilehome rent control in California constitutes an unconstitutional regulatory taking and private taking. This trial court victory, after seven years of litigation, represents the first federal court decision to resolve the merits of an important constitutional issue that was expressly left open by the United States Supreme Court in its decision in Yee v. City of Escondido.
Since 2001, the Firm has represented its longstanding client, Equity LifeStyle Properties, previously known as Manufactured Home Communites, in this signficant lawsuit over the constitutionality of mobilehome rent control in California. ELS filed a lawsuit against the City of San Rafael, California in the United States District Court for the Northern District of California seeking to invalidate an Ordinance that effectively allows any arguable benefits of rent control to be sold by departing tenants to incoming tenants. ELS demonstrated that any benefits of the regulation were fully capitalized so that the cost of housing was not reduced by the regulation.
The case first proceeded to trial in 2002 before Chief Judge Vaughn R. Walker on the constitutionality of the Ordinance. Following trial, the United States Supreme Court agreed to review a case, Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), that would shed light on the applicable legal standards. Following the decision in Lingle, ELS was permitted to amend its pleadings and supplement its proof to address the legal standards as set forth in Lingle.
In April 2007, Chief Judge Walker conducted further trial proceedings. Through the course of the case, ELS presented expert testimony from some of the nation’s leading experts in affordable housing and economics. It also presented empirical evidence that the effect of the Ordinance reduced the value of ELS’s property by $80 to $100 million, which represented over 75% of the value of the property.
On January 29, 2008, Chief Judge Walker concluded that the City’s conduct and its adoption and enforcement of the Ordinance amounted to a regulatory taking under Penn Central and a “private taking.” He found that the City’s conduct in enacting and enforcing the Ordinance was pretextual, that the Ordinance had no rational relationship to a public purpose, and that the Ordinance served principally to transfer property rights from one private party, ELS, to another private party, the park residents. Chief Judge Walker also rejected numerous procedural defenses raised by the City including statute of limitations, ripeness and res judicata.
This victory is a major one for ELS as it continues to pursue litigation aimed at enabling the company and its shareholders to realize the full value of its real estate investments across the state of California.
The trial team was led at all times by David J. Bradford, co-chair of the firm’s Business Litigation Practice. The trial included partner Lisa T. Scruggs, who participated in both the 2002 and 2007 trials, and associate Bradley Yusim.
Practice Groups:
Complex Commercial Litigation
Litigation Department
2/27/2008
Former FCC General Counsel Samuel L. Feder Joins Jenner & Block
Samuel L. Feder, former General Counsel of the Federal Communications Commission, will join Jenner & Block on March 3 as a partner in its Washington, DC office. Mr. Feder is a highly experienced communications lawyer with a background in both the private and the public sectors.
“Sam has been General Counsel at the FCC at a time when the telecommunications industry is undergoing a process of rapid technological and legal change,” said Gregory S. Gallopoulos, Jenner & Block’s Managing Partner. “His experience in all areas of telecommunications, especially spectrum, cable, and wireline communications, will be of great benefit to the Firm’s clients.”
Mr. Feder became General Counsel of the agency in 2005. In that capacity, he managed an office of 50 attorneys, advised the Chairman and the other Commissioners on all decisions facing the agency, supervised the FCC’s litigation before the federal appeals courts, and coordinated agency review of all mergers and acquisitions requiring FCC approval.
Before becoming General Counsel, Mr. Feder was a Legal Advisor to FCC Chairman Kevin J. Martin and to FCC Commissioner Harold Furchtgott-Roth. In that capacity, Mr. Feder provided legal and policy analysis for significant Commission decisions; acted as liaison to senior industry representatives, congressional staff, and consumer groups; and was heavily involved in international issues, meeting regularly with foreign government officials.
“I am delighted to join Jenner & Block. The Firm has a superb reputation for its work on behalf of telecom and media companies, as well as a nationally known appellate practice,” said Mr. Feder. “I look forward to helping the Firm’s clients using my knowledge and experience in the industry and in the appellate courts.”
Before joining the FCC, Mr. Feder was an associate at two Washington, DC firms specializing in appellate and telecom work. For two years, he was a civil trial attorney at the United States Department of Justice. Mr. Feder also served as a law clerk to the Honorable Edward R. Becker of the United States Court of Appeals for the Third Circuit. In 1994, he was a summer associate at Jenner & Block.
Mr. Feder earned his law degree, summa cum laude, from the University of Michigan Law School in 1995. At Michigan, he received the Daniel H. Grady Prize for graduating first in his class. Mr. Feder earned his A.B. in philosophy, cum laude, in 1992 from the College of William and Mary.
Practice Groups:
Litigation Department
Communications
2/27/2008
Two Jenner & Block Cases Recognized by Crain’s as Among Cases that Stood Out in 2007
Chairman Anton R. Valukas and Partner David J. Bradford were recognized for their respective roles in two multi-million dollar settlements in Crain’s Chicago Business’ recently published Verdicts and Settlements list, which highlights “ten cases that stood out in 2007.”
Mr. Valukas was mentioned in the report for his representation of former Chicago Sun-Times publisher F. David Radler in the prosecution of five top executives accused of fraud at Hollinger International, Inc. Mr. Radler pleaded guilty to a single charge of fraud and, in separate settlements agreed to pay $28.7 million and, along with three newspaper companies, $63.5 million to Sun-Times Media. In addition to Mr. Valukas, Partners Howard S. Suskin and Sally Sears Coder also worked on the case.
Mr. Radler “made a decision he was going to do right by those shareholders,” Mr. Valukas told the Chicago Tribune at the time of Mr. Radler’s sentencing in December 2007.
Crain’s also singled out Mr. Bradford for his role as one of the lead plaintiffs’ lawyers in a case against police officers and the City of Chicago based on the wrongful withholding of exculpatory evidence, which resulted in an $8 million settlement.
After approximately 30 depositions and extensive motion practice, Mr. Bradford’s clients, Omar Saunders and Larry Ollins, each received $4 million from the City of Chicago after they were wrongfully convicted and served more than 12 years of a life sentence for the 1986 murder of a 23-year-old medical student. The two men said their confessions were coerced by Chicago Police. They were freed in 2001 after they were exonerated by DNA evidence.
“We didn’t focus on one particular detective but rather on the failure to train the department and the failure to take remedial steps as various incidents were reported,” Mr. Bradford told Crain’s, and added that he is hopeful that this settlement and others will lead to better training of the city’s police department.
In addition to Mr. Bradford, Partners Terri L. Mascherin and Associates Bradley M. Yusim and Andrew W. Vail worked on this case.
Practice Groups:
Litigation Department
White Collar Defense and Investigations
2/27/2008
Associate Bell Secures Pro Bono Victory for the Firm Challenging a Federal Prison Policy
In a victory for the Firm’s pro bono client, a federal appeals court recently reinstated a lawsuit brought by the client challenging an eight-year old federal prison policy that prohibits reporters from personally interviewing or having face-to face communication with inmates on death row. Jenner & Block Associate Chad E. Bell argued the case on behalf the client before the U.S. Court of Appeals for the Seventh Circuit.
The Firm’s client, a federal death row inmate, had filed a pro se lawsuit alleging that the prison policy violated the U. S. Constitution’s guarantees of free speech and equal protection. The Firm was appointed by the Seventh Circuit to represent the client after the district court dismissed his case on summary judgment, holding that the client had failed to raise any genuine question of material fact as to whether the restrictive policy violated his First Amendment rights.
Mr. Bell argued before the Seventh Circuit that the client had, in fact, provided the court with extensive evidence that the restrictions were adopted in an effort to restrict the speech of death row inmates, motivated by the public outrage and negative reactions following a 60 Minute interview in 2000 featuring Oklahoma City federal building bomber Timothy McVeigh.
In its ruling, the appellate court found “direct evidence of actual motivation” that created a genuine issue of material fact as to whether the implementation of the policy was “motivated by a desire to prohibit a disagreeable viewpoint or advance prison security.”
The client “submitted evidence from which a reasonable jury could conclude that the media policy was implemented and is now enforced not because of safety concerns, but rather in response to public pressure to prevent Death Row inmates from voicing their views publicly,” said the court.
In addition, it ruled that the district court abused its discretion in denying the Firm's client counsel at the trial level, and the ‘the denial of counsel prejudiced the client, and, especially in light of Hammer’s pro se status, that the court abused its discretion in denying his Rule 56(f) motion for continuance.”
“The client will now have his day in court,” said Mr. Bell. “As a result of the court’s decision, the client will have the opportunity to challenge the press restrictions, be afforded counsel and conduct discovery to prove his claims.”
Mr. Bell was supervised in this case by Partner Barry Sullivan and Chairman Emeritus of the Firm Jerold S. Solovy.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
2/25/2008
Epstein and Lepow Discuss "When Contracts Go Sour" at Bar Forum
More than 90 in-house counsel from the DC area heard Jenner & Block Partners Jerome L. Epstein and Leslie H. Lepow discuss “When Contracts Go Sour: Lessons Learned From Litigation” on February 21 at a monthly forum sponsored by the Washington Metropolitan Area Corporate Counsel Association (WMACCA).
In their remarks, Mr. Epstein, a commercial litigator, and Mr. Lepow, a transactional lawyer, focused on how companies should draft contracts to avoid the escalation of contract disputes into costly litigation.
“What lessons in negotiation and drafting can we take from deals gone awry?” Mr. Epstein asked. The speakers discussed integration clauses and disclaimers to ward off fraud claims; litigation concerning material adverse changes; “best efforts” clauses; arbitration clauses; and indemnification and limitation of liability clauses.
“Why should we care whether a claim is brought as a fraud claim rather than as breach of contract?” Mr. Epstein asked. “Well, in the first place, in a fraud case, all of your limitations of liability in the contract will go out the window. Also, punitive damages may be available, and rescission of the contract is much more likely. The argument that the other side would be making is not that the contract was breached but that there was fraudulent inducement to enter into the contract.”
Mr. Epstein noted that the courts require that the other side “actually relied on the misrepresentation” and that this reliance was “justifiable” in the circumstances -- that a “reasonable buyer would not have figured out this fraud.”
Therefore, a specific clause in the contract disclaiming any reliance by the other party can be effective, and “if it’s as detailed as possible, a court can then hold that there was no reasonable reliance as a matter of law.”
Mr. Lepow raised another commonly occurring issue -- that the other party may try to hold a client responsible to fulfill the undertakings in a letter of intent.
“We were down this road recently in a letter of intent,” Mr. Lepow said, “and our client, the seller, decided to pull itself off the market. We were told by the other side that we’d be sued under the letter of intent for specific performance. Although that did not actually happen, one take-away is that if you’re going to write a letter of intent, take clear steps to evidence that it is not intended to be a binding agreement.”
The luncheon event took place at the Hilton McLean Tysons Corner in McLean, Virginia. 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).
Practice Groups:
Corporate
Litigation Department
Complex Commercial Litigation
2/17/2008
Jenner & Block Attorney Wins Disability Appeal for DC Resident
Associate Thomas H. Kim recently won a pro bono appeal before an administrative law judge of the Social Security Administration, obtaining Supplemental Security Income benefits for a disabled Washington, DC resident, including almost four years of retroactive benefits.
The client, a former carpenter and architectural draftsman, was injured in a rear-end automobile collision in 1991. Since then, he has suffered severe pain from various injuries to hiscervical spine and has largely been unable to work. However, his application for disability benefits had been denied by the Social Security Administration.
In August 2007, Mr. Kim took on the client's pro bono case, which came to the firm through a referral from the DC Bar. Mr. Kim worked closely with the client and gathered medical evidence to support his claim that he did not have skills that could effectively be transferred to a job that he was still capable of performing.
At a one-hour hearing before Social Security Chief Administrative Law Judge Larry Banks, Mr. Kim successfully addressed the judge's concerns about the client's condition. He cross-examined a vocational specialist from the Social Security Administration to show that the client is in fact disabled. The judge found in the client's favor and awarded him benefits, including retroactive benefits to the date of his original application for disability in 2004. Mr. Kim says the benefits will amount to several hundred dollars a month.
Practice Groups:
Litigation Department
2/12/2008
“Illinois Super Lawyers” Honors Thomas Sullivan
Jenner & Block Partner Thomas P. Sullivan is featured in a cover profile story in the 2008 edition of Illinois Super Lawyers & Rising Stars magazine, which honors Mr. Sullivan’s “prolific legal career” and unfaltering commitment to fairness and justice.
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. In his only time practicing law outside of Jenner & Block, Mr. Sullivan served for four years as United States Attorney for the Northern District of Illinois from 1977-1981.
“Tom Sullivan has had the most admirable career of any lawyer I know,” said attorney and bestselling author Scott Turow, whom Mr. Sullivan hired as an assistant U.S. attorney in 1978. “As the U.S. Attorney who essentially brought me up as a lawyer, he was the most distinguished, dispassionate, fairest and most dedicated public servant I have ever encountered.”
Rather than fixate on the emotional and political ramifications of his cases, the article says, Mr. Sullivan focuses on taking principled stands and arguing issues of law. “I have found over the years that bleeding hearts are dangerous,” he told Illinois Super Lawyers. “I like to take a more measured view of things.”
The article describes Mr. Sullivan’s work with Jenner & Block Partner Chester T. Kamin and the late Albert E. Jenner, Jr. to represent clients in a historic confrontation and extended civil and criminal litigation with the United States House of Representatives Committee on Un-American Activities. Their successful efforts defending Dr. Jeremiah Stamler before the House Un-American Activities Committee “curtailed the committee’s ability to harass citizens and ultimately helped lead to the abolition of the committee in 1975.”
In addition, the article notes that as U.S. Attorney, Mr. Sullivan conceived and implemented the “Greylord” investigation of the Cook County court system, which uncovered widespread corruption and resulted in numerous indictments and convictions of public officials.
The article also highlights Mr. Sullivan’s representation of indigent persons fighting for fair housing, minorities in voting rights actions seeking fair redistricting processes, as well as individuals on Death Row.
“A person, no matter how awful he is, or how awful the crime he is accused of committing, is entitled to the full panoply of the law and the Constitution,” said Mr. Sullivan.
Mr. Sullivan served as co-chair of the Illinois Governor’s Commission on Capital Punishment, whose report was widely considered to be an influencing factor in the Governor’s historic decision to grant clemency or pardon all of the individuals on the state’s death row, and led to sweeping reforms of Illinois’ death penalty legislation. He currently serves as chair of the General Assembly's Capital Punishment Reform Study Committee.
He is encouraging police departments to record custodial interrogations in all homicide cases. Mr. Sullivan published “Police Experiences with Recording Custodial Interrogations” (available online at http://www.jenner.com/policestudy), a nationwide study dealing with the practice of recording interviews of criminal suspects in custody in police stations, to help educate the public about the issue.
The article says that Mr. Sullivan’s work on the interrogation issue and capital punishment reforms, which he includes among the highlights of his career, helped inspire him to represent several prisoners being held without charges at Guantanamo Bay, Cuba in challenging the legality of their detention. In recent years, he has traveled to the base five times, written passionately on due process in op-ed pieces and for law publications, and testified before the U.S. Senate Judiciary Committee at a hearing on the Military Commissions Act of 2006’s controversial provision stripping habeas corpus rights from detainees.
Mr. Sullivan is among more than sixty-five Jenner & Block attorneys recognized as “Illinois Super Lawyers” by Law & Politics in its fourth annual peer review guide to the “top 5 percent of attorneys” in the state. Mr. Sullivan is listed among the “The Top 100 Illinois Super Lawyers,” which consists of the lawyers who received the highest point totals in the balloting, research and the blue ribbon review process. He is specifically recognized in the areas of Business Litigation and White Collar Criminal Defense.
Please click here for full text of article.
Practice Groups:
Complex Commercial Litigation
Litigation Department
White Collar Defense and Investigations
2/6/2008
Firm Obtains Victory for General Dynamics Land Systems in Multimillion Dollar Contract Dispute
A Jenner & Block team led by Partner Susan C. Levy secured a significant victory for client General Dynamics Land Systems (GDLS), a designer and manufacturer of land and amphibious combat systems for the U.S. Army and Marine Corps, in a multimillion dollar contract dispute with an Israeli armor manufacturer involving the “best efforts” provision of the parties’ contract.
In an order denying the plaintiff’s petition to vacate a 2007 arbitration award obtained by the Firm for GDLS and granting GDLS' motion to confirm the award, the U.S. District Court for the Southern District of New York found that the arbitrator committed no legal error in concluding that GDLS had “in all respects complied with the ‘best efforts’ requirement” of the parties’ agreement."
“The award as a whole shows that the arbitrator found that Defendant’s conduct satisfied a “best efforts” standard of diligence and that the underwhelming demand for Plaintiff’s product was a result of market conditions, not the efforts of the Defendant,” the order said.
The companies had entered into an agreement that granted GDLS the exclusive right to market and sell the armor company’s unique technology, Light Improved Ballistic Armor (LIBA), in the U.S. in exchange for a royalty on the amount of LIBA used or sold. The contract terms provided that “GDLS will use its best effort to expand and maximize the U.S. market for the LIBA product.”
In 2005, the armor company filed an arbitration demand against GDLS claiming more than $250 million in damages due to GDLS’ alleged failure to maximize the sales of LIBA in the United States.
During the 12-day arbitration hearing, the Firm’s team established that GDLS made significant efforts to market the LIBA product including introducing evidence that GDLS had sold more LIBA in the U.S. than the claimants’ had sold in any other country. In addition, the Firm demonstrated that GDLS had sold LIBA for use on its combat vehicles, and that there were good and valid technical reasons why LIBA was not “competitive” on other products. The arbitrator ruled in favor of GDLS on all claims in the case, finding that GDLS did not breach the best efforts clause. The arbitrator found that GDLS complied with the "best effort" requirement of the agreement, "regardless of what reasonable legal definition of best efforts' might be applied." In denying plaintiff's motion to vacate and granting GDLS' motion to confirm the award, the U.S. District Court held that ”the arbitrator’s determination was predicated on facts that are not reviewable by this Court under the language of the contract,” and the arbitrator did not commit any legal error.
“This was a clear and unequivocal victory for GDLS,” said Ms. Levy. “While courts across the country have offered a variety of approaches to evaluating ‘best efforts’ language in contracts,” this case holds that our client satisfied its ‘best efforts’ obligation under any reasonable standard.
In addition to Ms. Levy, the Jenner & Block team on this matter included Of Counsel Richard T. Franch, Partners Susan Kohlmann, Debbie L. Berman, Matthew J. Thomas, R. Clay Stiffler, Associate Joelle K. Blomquist and Senior Paralegal Jessica Merkouris.
Practice Groups:
Complex Commercial Litigation
Defense & Aerospace
Litigation Department
International Arbitration
2/4/2008
Kohlmann Wins Trademark Infringement Case in Sly Magazine v. Weider Publications
Partner Susan J. Kohlmann and Associate Elizabeth Valentina recently won a motion for summary judgment for clients Weider Publications and American Media, Inc. in a trademark infringement lawsuit brought by an online women’s fashion magazine in connection with the client’s now-defunct men’s print magazine that bears the same name.
According to the court’s ruling, Weider Publications, which publishes more than 30 magazines including Living Fit, Men's Fitness and Shape, had developed a magazine with actor Sylvester Stallone aimed at “fit men over 40, with an interest in physical fitness and an active lifestyle.” SLY Magazine, which was named for its creator and editorial director Mr. Stallone, was published from February 2005 through March 2006.
The plaintiffs, who have an online “lifestyle” magazine called “SLY Magazine” that targets women living in “metropolitan areas, thirty-five and younger, single with an interest in fashion,” had alleged that Weider Publications had infringed its trademark, “SLY,” in violation of the federal Lanham Act, New York common law and the New York Anti-Dilution Statute.
The first two claims hinged on the issue of the likelihood of customer confusion: specifically, whether consumers would be likely to believe that the client’s print magazine was a publication produced by the plaintiffs.
In finding for the client, the court found “significant differences between the content and presentation of plaintiff’s online magazine and defendants’ print publication.” The court found that all factors used to evaluate the case weighed in the defendant’s favors, and concluded “there is no genuine issue of material fact as to the likeliness of customer confusion.”
The court also dismissed the claim under the New York Anti-Dilution Statute, stating that the association of the plaintiff’s mark with the client’s magazine does not tarnish the plaintiff’s mark.
The decision followed the court’s previous denial of the plaintiff’s application for a temporary restraining order and motion for preliminary injunction.
Please click here for court's decision.
Practice Groups:
Intellectual Property
Litigation Department
Media and First Amendment
1/30/2008
Jenner & Block Team Wins False Claims Act Appeal for Honeywell
In a significant victory for Jenner & Block and its client, Honeywell International, Inc., on Jan. 15, 2008, the U.S. Court of Appeals for the Third Circuit affirmed a lower court ruling dismissing a reverse False Claims Act complaint against Honeywell and co-defendant NFI Industries.
The case centered on Honeywell’s participation in the U.S. Customs and Border Protection Agency’s voluntary Customs-Trade Partnership Against Terrorism (“C-TPAT”). The relator, Deana Zelenka, a former employee of NFI, alleged that Honeywell made false statements in order to join C-TPAT. Zelenka claimed that C-TPAT participants receive a reduced number of inspections and therefore pay the government a reduced amount of inspection fees. The reverse False Claims Act penalizes one who makes a false statement to “conceal, avoid, or decrease an obligation” to pay money to the government, 31 U.S.C. §3729(a)(7), and Zelenka claimed that Honeywell’s alleged false statements allowed it to avoid paying inspection fees to the government.
Jenner & Block attorneys successfully moved to dismiss the complaint in the U.S. District Court by arguing that the False Claims Act does not apply in this instance because the payment of inspection fees is only a “potential or contingent obligation,” triggered when the government decides to inspect Honeywell’s cargo.
Senior Judge Joseph E. Irenas agreed, and in granting Honeywell’s motion dismiss held that “Honeywell has no obligation to pay inspection fees for inspections that have not occurred, nor does the obligation to pay any such fees arise out of an economic or contractual relationship with the government."
The Third Circuit affirmed this ruling in a short opinion relying on the reasoning of the district court.
D.C. Partner Kali N. Bracey argued the appeal for Jenner & Block. Also participating in the case were D.C. Partners Joseph P. Covington and Julie M. Carpenter.
“This is an important victory for our client and for qui tam defendants in general,” said Ms. Bracey. “It affirms the principle, which three other circuit courts have also articulated, that purely hypothetical or contingent liabilities cannot give rise to liability under the reverse False Claims Act.”
Practice Groups:
Appellate and Supreme Court Practice
Defense & Aerospace
Litigation Department
1/25/2008
Gair Featured in Counsel to Counsel Magazine Discussing the Role of Inside Counsel in Government Investigations
Jenner & Block Partner Chris C. Gair is featured in a Counsel to Counsel magazine article titled, “Handling Government Investigations: What Role Should Inside Counsel Play?”
Mr. Gair told the magazine that companies who face a Department of Justice or Securities and Exchange Commission inquiry should integrally include inside counsel in the investigation, stating, “In-house counsel is in a uniquely strong position to serve as the company’s face and voice to the government. They are on the scene, understand the organization and can speak with authority. Prosecutors may respond positively to a more direct, unfiltered in-house response than one from ‘hired gun’ outside counsel.”
Gair noted that a company’s decision to have in-house counsel take a principal role in government investigations must be made thoughtfully. “The right person who is an integral management team member can give the company effective representation. The wrong person -- particularly someone who lacks decision-making authority or waffles -- can be a disaster,” he told the magazine.
Once the decision is made by a company to work with the government on an investigation, Mr. Gair said companies must cooperate fully with the government. "Once a company decides to cooperate, nothing less than an aggressive effort to ferret out all the facts meets the standard of full cooperation," he told Counsel to Counsel.
“By combining the right mindset with the right process to provide information, the in-house lawyers can be an effective advocate who prosecutors will respect -- to the company’s ultimate benefit,” Mr. Gair concluded.
Practice Groups:
Litigation Department
White Collar Defense and Investigations
1/24/2008
Verrilli Argues Before Supreme Court in Capital Punishment Case
On January 7, 2008, D.C. Partner Donald Verrilli Jr. argued before the U.S. Supreme Court on behalf of condemned killers Ralph Baze and Thomas C. Bowling that the lethal injection procedure used in nearly all U.S. states that have the death penalty poses a significant risk of causing "inhumane executions" and must be examined very strictly under the Eighth Amendment.
Mr. Verrilli said that the three-drug combination used in Kentucky, where Baze and Bowling face execution, can easily be improperly administered, causing "torturous, excruciating pain under any definition."
In the argument in the closely watched case, which the Firm took on as a pro bono matter, Justice Antonin Scalia asked Mr. Verrilli whether the Constitution requires "that you must find the method of execution that causes the least pain."
Mr. Verrilli replied, "We don't make the argument that States are required to choose the least painful method possible. Our standard is grounded on three extremely solid, well-established points of Eighth Amendment doctrine."
Mr. Verrilli said that several executions have been botched in various states under the so-called three-drug protocol. It involves sodium pentothal to cause unconsciousness, pancuronium bromide to paralyze the condemned person, and potassium chloride to stop the heart.
No executions have taken place in the United States since September 2007, pending the outcome of this case. The court will probably hand down a decision by the end of June 2008.
In addition to Mr. Verrilli, the Jenner & Block team on this case included Associates Ginger D. Anders, Carrie F. Apfel, Matthew S. Hellman, and Law Clerk, Kimberley A. Morris.
Pictured: Mr. Verrilli addresses the press after the court proceedings.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here to view the Firm's Merits Brief.
1/23/2008
Associates DiNatale and Polizzi Reach Favorable Pro Bono Settlement
Associates Michael P. DiNatale and Stuart D. Polizzi, in conjunction with the Lawyers’ Committee for Better Housing, recently reached a favorable settlement on behalf of a pro bono client who was involved in a dispute with her landlord regarding back rent and an eviction notice.
The Firm’s client is a single mother who has struggled with diabetes-related disabilities which have significantly impaired her ability to work a full-time job. Despite her complaints to her landlord for several months concerning numerous code violations in her apartment, including a stove that leaked gas, faulty electrical wiring, and a partially collapsed ceiling in her daughter’s bedroom, her landlord refused to make repairs and responded to her complaints with physical and verbal threats. The landlord filed an eviction notice against the client and sued her for unpaid rent.
Messis. DiNatale and Polizzi volunteered to represent Ms. Jimenez, filed a countersuit and also opened settlement negotiations with the landlord.
As part of the settlement agreement, the Firm’s client ultimately paid significantly less than what her landlord initially proposed, surrendering only her $1,000 security deposit along with an additional $200 to satisfy the back rent claims. The eviction complaint was also dismissed.
Messis. DiNatale and Polizzi were supervised by Partner Patricia A. Bronte.
Practice Groups:
Litigation Department
1/18/2008
Smith Argues Case Before Supreme Court on Voting Rights
On January 9, 2008, D.C. Jenner & Block Partner Paul M. Smith argued before the U.S. Supreme Court on behalf of the Indiana Democratic Party in Crawford v. Marion County Election Board, in which the Firm's client is seeking to invalidate an Indiana law that requires a photo ID for people who plan to vote in person. The case is one of the most closely watched in the Court's 2007-08 term.
The state of Indiana defended the law on the grounds that it is a reasonable step to prevent voter fraud. Mr. Smith responded by telling the justices that there is no evidence of in-person voter fraud in Indiana and that the law is a subtle way ''to skew the outcome on election days" in favor of Republicans by preventing some people without photo IDs, who tend to be largely indigent people and members of minority groups, from voting.
"Those Indiana voters who lack the identification now required by the new photo ID law must overcome substantial practical and financial burdens before they can continue to exercise their constitutional right," Mr. Smith contended.
"The statute imposes a range of burdens on people from quite severe to less severe, and these burdens vastly outweigh any incremental state interest that is being served," Mr. Smith said in response to a question from Associate Justice Anthony Kennedy.
Many observers have termed the case the most significant election-law case to reach the Supreme Court since the Bush v. Gore ruling that decided the 2000 election.
In addition to Mr. Smith, the Jenner & Block team on this case included Partner Sam Hirsch and Associates Jessica Ring Amunson, Carrie F. Apfel, Luke P. McLoughlin, and Sharmila Sohoni.
Pictured: Mr. Smith addresses the press after the case.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here to view the Firm's Merits Brief.
1/14/2008
Firm Wins Pro Bono Appeal in the Seventh Circuit
In a victory for a Jenner & Block pro bono client who had been sentenced to twenty years in prison for drug-related charges, a federal appeals court recently ruled that law enforcement officers violated the client’s Fourth Amendment rights. The court reversed his conviction and vacated his sentence. Associate Brian C. Haussmann argued the case before the U.S. Court of Appeals for the Seventh Circuit.
The Firm’s client, Gregory McNeal, was convicted in 2005 based on evidence allegedly gathered during covert surveillance set up by agents and officers of the Chicago Police and the Federal Drug Enforcement Agency (DEA). Law enforcement agents alleged they observed co-defendant Keith Collins leaving McNeal’s residence to get in his car holding illegal contraband, or what appeared to be crack cocaine. After agents interrogated Collins, they then returned with him to McNeal’s home with the intent to search the premises and also arrest McNeal.
According to the Firm’s legal team, despite having the opportunity to obtain a search warrant via telephone, law enforcement agents made no attempt to do so. Using a battering ram, agents forcefully made entry into McNeal’s home and used evidence found from that search and seizure against him in trial.
The district court found that the search performed by officers, although without a warrant, was justified by “exigent circumstances” because police were concerned that evidence may be destroyed before they could obtain a warrant. The court also found that McNeal consented to the search.
The Firm in its appeal argued primarily that the forced entry into McNeal’s home without a warrant violated his constitutional rights under the Fourth Amendment, that it was not justified by exigent circumstances and that, because of that, any evidence found in the home should not be admissible in court.
Closely tracking the Firm’s argument, the appeals court ruled “In short, if police hear a crime being committed within a house (and spoliation of evidence is a crime), then they can enter immediately, without knocking; if they do not hear a crime (more precisely, if they do not have probable cause to believe a crime is in progress), they have to get a warrant. The government has failed to show that in this case the police had probable cause to believe that evidence was being, or was about to be, destroyed when they entered (United States v. Collins, 7th Cir., No. 05-4708, 12/14/07).”
Mr. Haussmann argued the case before the court and was supervised by Partners Michael A. Doornweerd and Barry Levenstam. Associates Marisa K. Perry, Justin C. Steffen, former summer associate Katherine Neff and paralegal Julie H. Shaw also worked on the appeal.
Practice Groups:
Appellate and Supreme Court Practice
Litigation Department
Related Document(s):
Please click here to view a copy of the Firm's brief.
Please click here to view a copy of the court decision.
1/14/2008
Jenner & Block Secures Appellate Win for SPX Corporation in ERISA Case
Jenner & Block recently achieved a victory for client SPX Corporation when a federal appeals court affirmed a district court’s ruling that rejected a suit by a former employee who alleged that the terms of the SPX Individual Account Retirement Plan violated the Employee Retirement Income Security Act (ERISA).
The three-judge panel of the U.S. Court of Appeals for the First Circuit found that the district court had correctly determined that the plaintiff’s already accumulated early retirement benefit was not improperly reduced because it was figured into the calculation of his SPX accrued benefit, which yielded the greatest benefit for the participant. According to the appeals court, the participant was attempting to have his early retirement subsidy counted twice, which was not allowed under the plan.
In addition, the appeals court rejected the participant’s premise that the plan sponsor violated the notice requirements of ERISA Section 204(h), which mandates that sponsors provide notice of a plan modification if it is “reasonably expected that the amendment will reduce the amount of the future annual benefit commencing at normal retirement age.”
The court concluded that the plaintiff had the burden of showing that the conversion from a defined benefit plan to a cash balance plan reduced his future benefits, yet the participant presented no evidence showing that his benefits were reduced by the plan conversion.
The plaintiff, a former SPX employee, had filed a multi-count complaint against SPX in 2002 alleging that the Plan violated ERISA’s anti-cutback, merger and age discrimination provisions in the way it calculated his retirement benefit. He also claimed that SPX failed to properly calculate his lump sum distribution amount and breached its fiduciary duty by not paying his claim and by not providing him documents he had requested in a timely manner.
The Plan, a cash balance plan and the main retirement plan for SPX’s salaried employees, had been amended to incorporate alternative benefits for employees of General Signal Corporation (GSX), a company SPX had acquired in 1998. Under the amended Plan, the participants were entitled to receive the greatest of three alternative benefits upon retirement: (1) the GSX Accrued Benefit, (2) the SPX Accrued Benefit, or (3) the “Transition Benefit.” The Transition Benefit had been created by SPX to provide a subset of merged participants the value of an early retirement subsidy even though they had not yet earned that subsidy under their former plan.
The former employee, who had signed a termination agreement waving all “known claims” against the company, had already earned an early retirement subsidy under the GSX Plan. Therefore, in 2002 when the Plan calculated his Transition Benefit, it excluded the value of his early retirement subsidy. The former employee however claimed that he was entitled to the Transition Benefit with his already earned early retirement subsidy included into the benefit’s calculation. SPX denied his appeal and refused to pay his claimed benefit amount.
In 2007, the U.S. District Court for the District of Massachusetts ruled that SPX’s use of alternative benefit options in its retirement plan was lawful as long as participants’ accrued benefits are not reduced under any of the alternatives. The court also held that where a participant claims a specific benefits amount that he or she is not entitled to, the company does not have a fiduciary duty under ERISA to pay even the undisputed amount absent a proper application for that benefit. In addition, the court held that an employee can waive claims for penalties under ERISA if he or she knowingly signs a general release that waives all claims against the employer.
Partner Ross B. Bricker led the Firm’s team on this matter which included Partner Paul M. Smith, who argued the case before the court, Partner Andrew A. Jacobson and Associate Andrew W. Vail.
Practice Groups:
Appellate and Supreme Court Practice
ERISA Litigation
Litigation Department
1/14/2008
Firm Wins Music Royalties Case for UMG Recordings, Inc.
Jenner & Block Partner Andrew H. Bart and Associate Carletta F. Higginson recently won a victory for client UMG Recordings, Inc. when a federal court granted their motion for summary judgment and dismissed a lawsuit by The Allman Brothers Band that alleged the recording company had breached its contract by failing to pay royalty sums owed to the band.
The Allman Brothers Band’s contract with UMG Recordings, Inc. required UMG Recordings, Inc. to render semi-annual royalty statements to The Allman Brothers Band. The Agreement stated that if the band did not file written objections to the statements within two years from the date the statements were rendered, they would be deemed incontestable. The Agreement also prohibited the band from filing a complaint arising from a dispute over a statement more than three years after the date a statement was rendered.
The Allman Brothers Band sent two separate objection letters to UMG. However, in light of the time requirements set forth by the incontestability and limitations provisions in the agreement, both objection letters were found to be untimely by the court.
The Incontestability Provision of the 1985 agreement “serves as a complete bar to Plaintiff’s claims regarding those statements,” the U.S. District Court for the Southern District of New York ruled.
Relying primarily on precedent from California, the plaintiffs also argued that because UMG Recordings, Inc. allowed an audit of the statements and provided further information as part of that audit, plaintiffs were “misled” into believing that this matter would be settled and forced into filing an untimely suit.
The court concluded that, under New York law, “UMG’s permitting plaintiffs to conduct the audit, to the extent that plaintiffs had a right to review UMG’s books and records under the Audit Provision, did not reasonably mislead or lull plaintiffs into filing an untimely action.”
Practice Groups:
Creative Content
Litigation Department
Related Document(s):
Please click here to view the court’s decision.
12/13/2007
Gray Appointed to TechLaw Group, Inc.’s New Executive Board
Jenner & Block Partner Richard J. Gray was recently appointed to the 2008-2009 Executive Board for TechLaw Group, Inc., an international network of law firms dedicated to enhancing the practice of technology law. The purpose of the organization is for its member firms to share best practices, provide a mechanism for referrals when it is mutually advantageous to do so, and build membership carefully in order to preserve a small group of non-competitive firms that can foster productive relationships in the field of technology law.
Mr. Gray will serve as Treasurer, and be joined on the board by President, Jacques Salès of Denton Wilde Sapte in Paris, France, President-Elect, Wolter Wefers Bettink of Houthoff Buruma in Amsterdam, and Vice President, Craig C. Thorburn of Blake, Cassels & Graydon LLP in Toronto.
In the past, Mr. Gray has helped coordinate TechLaw seminars here at Jenner & Block’s offices, including the seminar, “Doing Business and Doing Battle in the Digital Age,” a day long conference in 2005, that hosted nearly 100 attorneys, corporate executives and legal scholars from around the world to discuss the risks and rewards of the newest electronic advances in transactions and litigation.
TechLaw Group, Inc. was formed in 1986 by five large U.S. law firms and since then has expanded to include 18 law firms with more than 6,000 lawyers and offices in more than 25 countries.
Practice Groups:
Intellectual Property
Litigation Department
12/5/2007
Firm Represents Pac-West Telecomm, Inc. in its Successful Reorganization
Jenner & Block represented Pac-West Telecomm, Inc. in the company’s successful reorganization and emergence from Chapter 11 bankruptcy. In a November 19 hearing, the U.S. Bankruptcy Court for the District of Delaware confirmed Pac-West Telecomm, Inc.'s Chapter 11 plan.
Under the plan, Pac-West exited Chapter 11 bankruptcy protection on November 30 with Pac-West Acquisition Company LLC, an affiliate of private equity firm Columbia Ventures Corp., as its new owner. Among other things, during its Chapter 11 proceedings, the wholesale provider of telecommunication service infrastructure restructured its balance sheet, shut down its telecommunications network and discontinued operations in 24 eastern states and the District of Columbia, groomed the remainder of its telecommunications network to reduce its operating costs, and consummated the strategic sales of several facilities. The company reorganized around its West Coast telecommunications network and business.
Led by Partner Michael S. Terrien, the Jenner & Block team that successfully reorganized Pac-West included members of the Firm’s Bankruptcy, Workout and Corporate Reorganization Practice, its Litigation Department, and its Corporate, Corporate Finance, Labor and Employment, Securities and Tax Practices. In addition to Mr. Terrien, the team was comprised of Partners Geoffrey M. Davis, Jerry L. Switzer Jr., Anthony C. Porcelli, Edward J. Neveril, Elizabeth A. Davidson, Michael T. Wolf and Terence G. Banich, Of Counsels Darren M. Mungerson and Lisa M. Eddington, and Associates Melissa M. Hinds, Thomas P. Monroe, Christine L. Childers, Nada Djordjevic, Wendy L. Fritz, Kathleen A. Hanley, Phillip W. Nelson, Mercedes M. Davis, Alexandra E. Dowling and Michael J. Kelly.
Practice Groups:
Bankruptcy, Workout and Corporate Reorganization
Corporate
Corporate Finance
Labor and Employment
Litigation Department
Securities
Tax Practice
12/3/2007
Weissmann Named to Ethisphere Magazine’s 100 Most Influential People in Business Ethics
Jenner & Block Partner Andrew Weissmann was recently recognized by Ethisphere Magazine as one of their 100 Most Influential People in the field of Business Ethics for 2007. Mr. Weissmann and other honorees were selected based on their history of "inspiring change in business ethics."
"These individuals deserve tremendous praise for their efforts to advance the public discourse on issues relating to business ethics," said Ethisphere Magazine Editor Stefan Linssen in a statement. "These finalists represent many different industries and organizations- large and small, public and private-but what unites them is an unwavering commitment to promoting ethical best practices and stimulating corporate social responsibility."
Mr. Weissmann was selected by a panel of top ethics experts from universities including New York University, Pennsylvania State University, University of Delaware, and Arizona State University. Research was conducted in cooperation with analysts from the Ethisphere Institute.
Mr. Weissmann and the other honorees were rated on nine categories that influence corporate ethical responsibility including, impact on government rules and enforcement trends, business leadership, contribution to a company’s or industry’s design and sustainability on critical ethics issues, thought leadership, impacting the ethical culture and conduct in corporate affairs, influencing corporate behavior through investor relations and shaping litigation that involves corporate compliance and governance.
Mr. Weissmann 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 joined Jenner & Block after serving as the Director of the Enron Task Force, the Chief of the Criminal Division of the United States Attorney's Office for the Eastern District of New York, and the Special Counsel to the Director of the Federal Bureau of Investigation. As Enron Task Force Director, Mr. Weissmann oversaw the prosecution of more than 30 individuals in connection with the company’s collapse, including the indictments of Kenneth Lay, Jeffrey Skilling, and Andrew Fastow.
Previously, Mr. Weissmann served as Chief of the Criminal Division in the U.S. Attorney’s Office for the Eastern District of New York where he supervised over 110 prosecutors. Mr. Weissmann oversaw a wide array of white collar crime investigations involving, among others, securities, FCPA, health care, environmental, computer crime and tax fraud. In addition, Mr. Weissmann personally prosecuted dozens of corrupt brokers and short sellers for stock market manipulation.
Mr. Weissmann was also recently appointed by two federal courts to serve as a Special Master overseeing gun dealers that had been sued by the City of New York as part of its effort to curtail the flow of illegal firearms into the City.
He has also written and lectured widely on compliance and other white collar matters, and has testified before the U.S. House and Senate on an array of topics related to corporate fraud.
For more information, please click here to view the Ethisphere website.
Practice Groups:
White Collar Defense and Investigations
Litigation Department
11/28/2007
Firm Wins Case for General Dynamics
The Firm has won a major victory for its client General Dynamics in Final Analysis Communications Systems, Inc. v. General Dynamics, a complex breach of contract and tort case. Final Analysis sued General Dynamics for more than $500 million over the failure of the companies’ satellite telecommunications venture. In 2005 a federal court jury in Maryland awarded Final Analysis $138 million and awarded General Dynamics $8 million on its counterclaim. Later, the federal district court judge reduced the verdict against General Dynamics to $19 million. Both parties appealed. This month the Fourth Circuit Court of Appeals exonerated General Dynamics by affirming the $8 million judgment in its favor and reversing the $19 million judgment against the company. Jenner & Block Partner Linda L. Listrom led the trial team and Donald B. Verrilli, Jr. argued the appeal. The team also included partners Iris E. Bennett, Michael A. Doornweerd, Elaine J. Goldenberg, Susan C. Levy, Craig C. Martin, Ronald R. Peterson, and Matthew J. Thomas and Jack Quinn from the Rockville, Maryland firm of Ethridge, Quinn, McAuliffe, Rowan & Hartinger.
Practice Groups:
Appellate and Supreme Court Practice
Government Contracts
Litigation Department
11/28/2007
Jenner & Block Attorneys Participate in IBA Annual Conference in Singapore
Jenner & Block Managing Partner Gregory S. Gallopoulos and Partners Lawrence S. Schaner, David M. Greenwald, John H. Mathias Jr., and Joseph P. Covington spoke at the International Bar Association’s Annual Conference held October 14-19 in Singapore.
Mr. Schaner spoke at a special October 13th IBA Training Course for Young Lawyers which was held to give an international perspective on the basic concepts of legal business practice. Mr. Schaner presented an “Introduction to International Arbitration” at the event.
Mr. Gallopoulos spoke at an October 15th session entitled, “Where to draw the line? Ethical issues that law firms may ignore at their peril.” The panelists debated on a variety of law firm practices and ethical issues, including topics such as not disclosing premium billing, overstaffing files, offering different rates for the same services to different clients, abusive tactics during litigation, the law firm holding an interest in an entity which provides ancillary services to clients, surcharges on disbursements and advising clients respecting backdating documents.
Mr. Greenwald spoke at an October 15th session entitled, “Resolving international insurance and reinsurance disputes.” A joint session of the IBA Litigation and Insurance Committees, the panelists addressed the global reach of the re/insurance industry and discussed a number of cross-border issues in the context of large multinational disputes. Mr. Greenwald made a presentation entitled, "Obtaining Discovery In The United States For Use In Foreign Legal Proceedings -- The Expanded Role of 28 USC Sec. 1782."
Mr. Mathias spoke at an October 16th session entitled, “Corporate Governance and Evolving Directors' and Officers' Liability Insurance.” The panelists discussed the East Asian financial crisis and how corporate scandals in the United States and Europe such as Enron, WorldCom, AOL, Daimler Chrysler, Parmalat and others highlight the fact that corporate governance compliance is an international cross-border problem. They examined how D&O insurers transform and transmit the corporate governance risk and securities law in underwriting D&O coverage; pricing D&O risks and exposures according to the risk profile of each individual entity; and increasing focus on corporate governance in assessing the risk.
Mr. Covington spoke at an October 18th session entitled, “Partners in Crime? The Risks Facing Lawyers in Today's World.” The panelists discussed to what extent lawyers can get into trouble, and even go to jail, as a result of the activities of their partners, staff or clients. Using hypothetical instructions, the panel explored the range of liability, reputational, regulatory and criminal risks arising from the conduct of others, which lawyers face these days in international practice including: civil liability for professional negligence; dishonest assistance/aiding and abetting, and breach of fiduciary duty; the role and impact of professional regulation; the lawyer's role in the prevention of money laundering and other financial crime; and the prospect of lawyers being extradited across borders.
Jenner & Block also hosted a breakfast reception for about 250 people on October 17 at the Ritz-Carlton, Millenia Singapore for conference guests.
Pictured, top: Mr. Schaner
Pictured, top middle: Mr. Gallopoulos
Pictured, middle: Mr. Greenwald
Pictured, bottom middle: Mr. Mathias
Pictured, bottom: Mr. Covington
Practice Groups:
Litigation Department
International Arbitration
11/12/2007
Firm Achieves Major Victory for Client IAP Worldwide Services
In a major victory for Jenner & Block client IAP Worldwide Services, the Government Accountability Office recently upheld the Firm’s challenge to the Army’s decision not to award IAP a $50 billion Logistics Civil Augmentation Program (LOGCAP IV) contract for logistical support of U.S. forces.
The LOGCAP contract to house, feed and provide other logistical support to U.S. military troops in Iraq, Afghanistan and Kuwait is considered “one of the biggest deals in the contracting services industry,” according to a recent Washington Post article. The contract spans 10 years and was awarded in June to three companies.
On behalf of IAP, the Firm alleged that the bids were evaluated improperly by the Army Sustainment Command and that the agency's evaluation of proposals was unreasonable.
The GAO issued a ruling last week sustaining the challenge to the contract award. The GAO held that the Army violated procurement law or regulations to the detriment of the protesting companies. Among other things, the GAO found evidence of unreasonable and unequal treatment in how proposals were evaluated.
In its decision, the GAO advised that the Army reopen the evaluation process to determine which companies are rightly entitled to the contract.
The Jenner & Block team on this matter included Partners J. Alex Ward and Edward Jackson, Of Counsel Kathy C. Weinberg, and Associates Bradley A. Areheart, Jammey L. Kligis, Joshua Rafsky and Jessica Tillipman.
Practice Groups:
Defense & Aerospace
Government Contracts
Litigation Department
11/7/2007
Gray Speaks at Investiture Ceremony for Honorable Joseph Van Bokkelen
On behalf of the American Bar Association’s Standing Committee on the Federal Judiciary, Jenner & Block Partner Richard J. Gray provided introductory remarks at the Investiture Ceremony for Joseph Van Bokkelen, who was sworn in as a Federal District Judge for the Northern District of Indiana on October 5 at the Hammond Federal Court House in Hammond, Indiana. Mr. Gray serves as the Seventh Circuit representative on the Committee.
“The best part of my job as a Committee member is the opportunity to meet men and women who, by virtue of their achievements in life, at the bar, and on the bench have been found deserving of a nomination to the federal court,” Mr. Gray said at the ceremony.
“I am very pleased to report, as a result of its review, the Committee finds Joseph Van Bokkelen well qualified for membership on this court,” Mr. Gray added in his remarks. “The Committee did not confer this well qualified rating. Joe Van Bokkelen earned it.”
The ABA Standing Committee on 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 only 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.
Practice Groups:
Litigation Department
Complex Commercial Litigation
Insurance Litigation and Counseling
Intellectual Property
11/5/2007
Merrick Speaks to Chicago-Kent Law Students
Jenner & Block Associate Andrew F. Merrick spoke at the Chicago-Kent College of Law “Take A Break” program held October 23 at the Chicago-Kent College of Law campus.
Mr. Merrick addressed a group of approximately 80 Chicago-Kent law students about his experiences as an attorney at Jenner & Block. In addition to Mr. Merrick, Angela Frye of Kirkland & Ellis, Brian Fern of Skadden, Lori Fanning of Miller Law LLC, Michelle Krause of Levenfeld Pearlstein, and Barbara A. Erickson of Hodges, Loizzi, Eisenhammer, Rodick & Kohn spoke at the program and answered student questions.
Mr. Merrick is a member of the Firm’s Litigation Department and its Class Action Litigation and Securities Litigation Practices. In 2006, Mr. Merrick graduated with high honors from Chicago-Kent College of Law and was inducted into the Order of the Coif. While in law school, Mr. Merrick served as the Executive Notes and Comments Editor for the Chicago-Kent Law Review. In addition, Mr. Merrick was a member of the Chicago-Kent Moot Court Honors Society where he competed as a semi-finalist in the Ilana Diamond Rovner Appellate Advocacy Competition. Mr. Merrick also competed as a finalist in the Charles Evan Hughes Moot Court Competition and participated in the Conrad B. Duberstein Moot Court Competition in New York City.
Practice Groups:
Class Action
Litigation Department
Securities Litigation
10/31/2007
Suskin Comments on Company Management of Question Queues on Quarterly Earnings Calls
While most firms now manage the question queues on quarterly earnings calls, companies should be conscious of the investor and public relations concerns surrounding the practice, according to a recent article in IR Magazine.
The article says that conferencing companies doing high-end, operator-assisted IR calls have invested heavily in queue management tools in the past five years, enabling the firms to move questioners to the front of the question queue, push them to the back, or exclude them altogether.
Among other things, the article says this practice allows companies to take important questions first, push repeat questioners down the queue, and shut out employees, reporters and other ‘unqualified’ callers. However, the article states, this practice can also frustrate analysts who believe they are being shut out of communications.
Jenner & Block Partner Howard S. Suskin, Chair of the Firm’s Class Action Litigation Practice and Co-Chair of its Securities Litigation Practice, noted that while there’s likely no legal basis for an analyst to take action for being bumped from a call, the practice can create problems with investor and public relations. “Even just appearing to freeze out an analyst can generate negative publicity,” he said.
To help avoid investor criticism and negative exposure, the article advises companies not to ‘freeze out’ analysts with negative ratings, and to accept callers with difficult questions. In addition, the article encourages firms to bump down analysts who are first to ask questions on every call, and to welcome brand-new analysts with a fast track to the front of the queue.
Practice Groups:
Litigation Department
Securities Litigation
10/23/2007
Rozycki Speaks at Large Law Firm Symposium
Jenner & Block Partner Carla J. Rozycki recently spoke at Aon’s Large Law Firm Symposium held October 16-18 in Chicago.
Ms. Rozycki spoke at a session entitled, “Employment Practices Liability: Ever Present and Ever Threatening.” Ms. Rozycki, along with moderator Michael L. Matula of Ogletree Deakins Nash Smoak & Stewart P.C. and panelist Bettina P. Plevan of Proskauer Rose, discussed the types of claims brought against law firms by partners, associates and staff. They spoke about the risks that occur both reputationally and financially and how the law firm environment influences these risks. They also discussed loss prevention suggestions.
Ms. Rozycki is Chair of the Firm’s Labor and Employment Practice. Ms. Rozycki also serves as Co-Chair of the Firm’s Positive Work Environment Committee and as Firm Counsel (Employment). Ms. Rozycki has represented public and private employers in employment discrimination, harassment, wage/hour, ERISA benefits, restrictive covenants, and state common law claims brought by individuals, government agencies and as class actions, as well as First Amendment, due process and equal protection claims, before federal, state and appellate courts and in administrative proceedings before the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, the Department of Labor and a variety of other federal, state and local administrative agencies. She also write a regular column for Law.com on Labor Law issues.
Practice Groups:
Labor and Employment
Litigation Department
10/11/2007
Firm Secures Pro Bono Victory in Landlord-Tenant Court
Associate Matthew Hersh and Partner Julie M. Carpenter recently won a trial on behalf of a pro bono client seeking to expel an unwelcome individual from her basement apartment.
The Firm’s client and her husband, who do not speak English, had been renting the apartment to a tenant for less than two months when the tenant was sent to jail on an unrelated matter. Despite the client’s express refusal to permit an acquaintance of the tenant to live in the apartment, a woman took possession of the defendant’s key, moved in and changed the apartment locks.
When the woman failed to leave the apartment after the client’s continued protests, the client sought legal assistance from the DC Bar Pro Bono Program Law Firm Clinic to remove the trespasser from her premises. The Firm took on the case and successfully expedited the trial date for their client. Mr. Hersh and Ms. Carpenter then worked to secure a sworn statement from the jailed tenant that supported their claims against the defendant.
At the trial in the Landlord and Tenant Branch of the Superior Court of DC, Mr. Hersh delivered a statement of the Firm’s case and examined the client and her husband. Following the Firm’s submission of the previous tenant’s statement and their cross-examination of the defendant, the judge ruled from the bench that there was no tenancy and the defendant had no right to be in the apartment. In addition, the court ordered the defendant to pay the client as compensation for the wrongful use her property.
Practice Groups:
Litigation Department
10/11/2007
Corporate Secretary Think Tank Provides Lively Discussion for Attendees
Jenner & Block Partners John H. Mathias, Jr., Matthew J. Renaud and Lawrence S. Schaner joined a select group of senior-level corporate secretaries and in-house counsel to discuss the latest corporate governance and risk issues at the 2007 Corporate Secretary Think Tank event held at Jenner & Block’s Chicago office on September 20.
The Think Tank included three presentations that were each followed with a lively discussion of various industry challenges and provided an opportunity for attendees to share relevant experiences and their own best practices.
Mr. Schaner chaired a panel entitled, "Global Legal Risk," which examined the current state of the rising tide of class action litigation, settlements and legislation in the United Kingdom, Germany, the Netherlands and other European jurisdictions. Joining Mr. Schaner was Odell Guyton, Director of Compliance and Senior Corporate Attorney of Microsoft and Burkard Göpfert, Attorney of Gleiss Lutz.
Forms of international group litigation are on the rise, said Mr. Schaner, and many differences exist between the nature of class action lawsuits within the U.S. and that of European jurisdictions. For example, one critical difference is that in the U.S., one must take affirmative action to remove oneself from a group in a class action lawsuit, while in Europe, one must take action, or "opt-in," to place oneself within the class action group.
The other panelists also referenced their experiences with cross-cultural legal differences. Mr. Göpfert stated that the number and severity of cases is growing, because the U.S. courts are much more liberal in admitting lawsuits. He also said that in European nations, there is often a "disincentive to bring nuisance lawsuits" to court, as the European nations’ courts are less liberal than the U.S. in admitting lawsuits.
Mr. Guyton stressed the importance of an effective compliance program to manage and mitigate international litigation risk, while still remaining compliant to local law. A program should have "accountability, awareness, training and procedures that can be tested for efficiency," he said.
Joining Mr. Renaud in the second session, entitled "Executive Compensation," was Marc Howze, Corporate Secretary and Associate General Counsel of Deere & Company, Adam Ross, AVP of Directors Desk, and Matthew Stinner, Managing Director of Pearl Meyer & Partners.
New disclosure requirements are requiring corporate secretaries and other management to provide increased amounts of information about executive compensation plans and incentive arrangements, said Mr. Renaud. He discussed the recent SEC comment letters sent out to 300 publicly-traded companies, and the discussion focused on the disclosure of performance targets.
Mr. Stinner described how executive compensation consultants can be helpful in determining effective performance measures, and also discussed recent concerns regarding the independence of these consultants. Often the perception of a conflict of interest exists, and Mr. Howze questioned the attendees to gauge the use of executive compensation consultants within the companies they represented. Consultants can be helpful, as it is becoming increasingly difficult to document and retain boardroom happenings, said Mr. Ross, yet it is important to analyze a board’s work flow in order to help corporate processes gain efficiency.
A third session discussed shareholder communications and was led by panelists Robert Folinus, Vice President of The Bank of New York Mellon, Maria Green, Associate General Counsel & Assistant Secretary of Illinois Tool Works, David Prichard, Director of Investor Relations of Corn Products International, and Bob Stensby, Vice President Sales/Marketing of Merrill Corporation. The panelists discussed the increasing impact that shareholders, and the new firms that advise them, have on corporate governance, including the new distribution and analysis systems that are shifting the shareholders’ role.
Corporate Secretary is a leading publication for corporate secretaries, governance professionals and general counsel.
Pictured:
Top (from left to right): Mr. Schaner, Mr. Guyton, and Mr. Göpfert discuss global legal risk.
Top Middle: Mr. Schaner in a breakout discussion group.
Middle (from left to right): Mr. Renaud, Mr. Howze, Mr. Stinner, and Mr. Ross on the executive compensation panel.
Bottom Middle: Mr. Renaud in a breakout discussion group.
Bottom: Mr. Mathias in a breakout discussion group.
Practice Groups:
Employee Benefits and ERISA Counseling
Litigation Department
International Arbitration
10/9/2007
Suskin Comments on Courts’ Expanded Scrutiny of Class-Action Suits
Federal courts across the country are increasingly demanding more evidence and scrutinizing expert witnesses prior to allowing plaintiff claims to be certified as a class action, according to a recent article published in the Chicago Tribune.
The article says the expanded scrutiny at the class certification stage is designed to weed out frivolous suits that have drawn the scorn of businesses and inspired federal legislation imposing limits on class actions.
Jenner & Block Partner Howard S. Suskin, Chair of the Firm’s Class Action Litigation Practice and Co-Chair of its Securities Litigation Practice, told the Tribune that “class certification is a very critical stage of litigation,” especially because class actions rarely go to trial. The vast majority of class actions are settled, often for massive amounts that include large fees for plaintiffs' lawyers, the article says.
“The impact to a defendant of facing a class action versus an individual case can mean the difference of millions of dollars," said Mr. Suskin.
The article notes that several multibillion-dollar settlements and high-profile cases have drawn criticism from influential business groups in recent years, spurring political reaction. According to the article, legislation passed in 2005 expanding the federal jurisdiction of class actions and two recent federal appellate securities fraud decisions have toughened the standard for class certification.
In this “highly charged environment,” the article says it is becoming more common for paid expert witnesses to face off at class certification hearings, and that parties are also increasingly challenging the reliability of expert witnesses at this stage.
Practice Groups:
Class Action
Litigation Department
Securities Litigation
9/28/2007
Bisceglia Honored by Justinian Society of Lawyers with Award of Excellence
The Justinian Society of Lawyers honored Jenner & Block Partner and Illinois State Bar Association President Joseph G. Bisceglia with its Award of Excellence at its annual installation and awards gala September 20.
Mr. Bisceglia, who is a former President of the Justinian Society, was honored for his many years of distinguished service to the community and for his leadership within the ISBA.
In addition to Mr. Bisceglia, Anthony J. Fornelli was honored at the event with the with the Justinian Society’s Moses W. Harrison Award of Recognition. Mr. Fornelli is the publisher of Fra Noi and a past president of the Justinian Society of Lawyers. He is a previous recipient of the Award of Excellence.
Mr. Bisceglia was installed as the 131st President of the Illinois State Bar Association at the organization's Annual Meeting in June. During his one-year term as President, Mr. Bisceglia plans to focus on the public image of lawyers, educating the public about the lawyer's role in our justice system and creating more diversity in the legal profession.
Mr. Bisceglia is the 6th Italian-American and 3rd past Justinian president to serve as the President of the Illinois State Bar Association.
Pictured:
Top: (from left) Mr. Bisceglia, Justinian Society of Lawyers President, Franco A. Coladipietro and Mr. Fornelli at the event.
Below: Mr. Bisceglia and Jenner & Block Partner Thomas P. Sullivan, who introduced Mr. Bisceglia at the event.
Practice Groups:
Real Estate and Construction Litigation
Litigation Department
9/27/2007
Jenner & Block Helps Cameroon Refugee Obtain Asylum
Jenner & Block recently secured asylum in the United States for a Cameroon man who fled his country to escape political persecution.
The client was discriminated against for being an English-speaking Southern Cameroonian after the unification of North Cameroon (which is largely French-speaking) and South Cameroon. After being forced to leave college due to persecution and the threat of arrest, the client became an active member and regional Youth Publicity Secretary of the South Cameroons National Council (SCNC), an organization that advocates for governmental transparency and the equality of English-speaking Southern Cameroonians. The group has become a target of the reigning power in Cameroon, the Cameroon People’s Democratic Movement (CPDM), led by dictator Paul Biya.
According to the Jenner & Block team, the client was detained while distributing fliers about SCNC events to villagers in Southern Cameroon. He was taken to a remote prison and tortured repeatedly. He escaped and went to Germany on a temporary student visa eventually fleeing to the United States.
The case proved to be difficult, according to the Firm’s team, because an asylum officer might view the client’s stay in Germany as demonstrating a “firm resettlement” there negating his ability to receive asylum in the U.S. The client also suffered from post-traumatic stress syndrome because of the torture he experienced in Cameroon. Despite these difficulties, the Firm’s team was successful in presenting credible testimony about the client’s ordeal and demonstrating that he had no significant social or economic ties to Germany.
Jenner & Block Partner Charlotte L. Wager and Associates John R. Schleppenbach and Reena R. Bajowala represented the client in this matter.
Practice Groups:
Litigation Department
9/27/2007
Mascherin Honored at NLJ 50 Most Influential Women Lawyers in America Dinner
Jenner & Block Partner Terri L. Mascherin was honored by The National Law Journal as one of the 50 “most influential women lawyers in America” at a special ceremony held September 10 in New York City.
Readers of The National Law Journal were asked to nominate female attorneys who “have had a national impact in their fields and beyond during the last five years” and who have “demonstrated the power to change the legal landscape, shape public affairs, launch industries and do big things.”
The National Law Journal honored Ms. Mascherin for both her business litigation practice and her extensive pro bono work. The National Law Journal commented, “By day a contract and corporate transactions litigator and partner on her firm’s management committee, Mascherin has dedicated much of her career to pro bono cases, particularly representing indigent clients on death row." The Journal noted that she has “first-chaired jury and bench trials, argued appeals in state and federal court and arbitrated both domestic and international disputes.” The publication highlighted Ms. Mascherin’s role in a 2006 case for Honeywell International Inc., which resulted in a $100 million win in arbitration and declaratory relief for the company over the breach of a petrochemical supply agreement.
The newspaper also cited Ms. Mascherin’s work in defending former Illinois Governor George Ryan’s clemency orders commuting death sentences of everyone on death row in Illinois.
Ms. Mascherin is a member of the Firm’s Litigation Department and Business Litigation, Domestic and International Arbitration, Telecommunications, and Trade Secrets and Unfair Competition Practices and a member of the Firm’s Management Committee. She received her A.B. degree, magna cum laude, from Duke University. She received her J.D. from the Northwestern University Law School, cum laude. Ms. Mascherin is a member of the bars of the United States Supreme Court, the State of Illinois, the Seventh Circuit Court of Appeals, the United States District Court for the Northern District of Illinois and several other federal district courts and courts of appeals.
Please click here to view Ms. Mascherin's profile in The National Law Journal.
Pictured:
Top: (from left) Jenner & Block Partner Barbara S. Steiner, Ms. Mascherin, Managing Partner Gregory S. Gallopoulos and Partner Susan C. Levy at the ceremony.
Bottom: The recipients of NLJ’s 50 Most Influential Women Lawyers in America Award
Practice Groups:
International Arbitration
Complex Commercial Litigation
Communications
Litigation Department
Unfair Competition, False Advertising and Lanham Act
9/17/2007
Firm Secures Appellate Victory in Bankruptcy Case for First American Bank
In a victory for Jenner & Block client First American Bank, the U.S. District Court for the Middle District of Florida summarily affirmed a bankruptcy court’s prior disallowance of an opponent creditor’s claim. The district court decision cites the bankruptcy court’s “well reasoned” order and states that the "factual findings contained in the [bankruptcy court's] order were supported by the evidence.”
When Titan Cruise Lines filed for Chapter 11 relief in August 2005, First American Bank asserted a timely secured claim against the debtor’s estate. Subsequently, the opponent filed an untimely unsecured claim for an alleged personal injury that was the subject of a state court lawsuit.
In early 2006, the bankruptcy court permitted the opponent’s unsecured claim and also approved a sale of “substantially all” the debtor’s property. As negotiated by the parties, the sale order provided that a portion of the sale proceeds would be carved out from the Bank’s lien for the estate’s unsecured creditors, while the remainder of the proceeds would be placed in an account for secured creditors.
At issue in this dispute was a second claim filed by the opponent after the property transaction closed, which recharacterized his original unsecured claim as a secured lien “that took priority over the Bank’s ship mortgage and over the Bank’s interest in the account for secured creditors.” According to the Firm’s brief, the claim was “not grounded in fact,” but was a “bait-and-switch” borne out of “cynical opportunism” that would prejudice both the Bank and the other parties involved in the debtor’s reorganization.
Evaluating the opponent’s secured claim under factors set forth in United States v. International Horizons, Inc. (11th Cir. 1985), the bankruptcy court agreed that the Bank relied to its detriment on the unsecured status of the opponent’s claim and that the reliance was justified under the circumstances. The bankruptcy court disallowed the claim and the federal court affirmed the ruling in favor of First American Bank.
Partners Ronald R. Peterson and Terence G. Banich led the Jenner & Block team representing First American Bank in this matter. According to Mr. Peterson, “this decision properly gives effect to the parties’ complex set of compromises that took place prior to the sale of the debtor’s vessels.”
“If bankruptcy courts allowed deals to be undone as casually as the opponent wanted, the collaborative, resolution-minded atmosphere of most successful reorganization cases would be irreparably chilled,” said Mr. Banich.
Practice Groups:
Bankruptcy, Workout and Corporate Reorganization
Litigation Department
Related Document(s):
Please click here to view the Court’s Order.
Please click here to view the Firm’s Brief.
9/12/2007
Washington Business Journal Recognizes Fabrizio as Top Intellectual Property Lawyer in DC
Steven B. Fabrizio, a partner in the Firm's Washington, DC office, has been named the winner of the Washington Business Journal's 2007 "Top Washington Lawyer" award in the Intellectual Property category.
Mr. Fabrizio, who has represented owners of copyrighted content in the highest-profile, most complex pieces of national litigation, received his award at a reception at the Four Seasons Hotel in Georgetown on Sept. 11, 2007. Among Mr. Fabrizio's recent cases were those brought by the recording industry against Kazaa and other online file-trading services. Those cases led to extremely favorable results for the Firm's clients, including a $115 million settlement paid by Kazaa in 2006 to members of the worldwide recording industry. Mr. Fabrizio was also part of the Jenner & Block team that represented the major motion picture studios and record companies in the landmark U.S. Supreme Court case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, which held that online services can be held liable for inducing copyright infringement.
Mr. Fabrizio is currently representing the major United States motion picture studios in their litigation against the operators of pirate “BitTorrent” websites – sites that unlawfully encourage and facilitate the widespread infringement of the world’s most popular entertainment content, including movies and television programs.
Each year, the Washington Business Journal announces its "Top Washington Lawyers" in more than a dozen categories. This year, the winners were selected from nearly 500 nominees from firms throughout the Washington region.
Thomas J. Perrelli, managing partner of the Firm's DC office, said, "This award is incredibly well deserved. Steve is a great lawyer who understands his clients' needs and has achieved remarkable results for them both in court and at the settlement table. His cases have helped shape fundamental principles of copyright in an often unsettled Internet environment."
Practice Groups:
Creative Content
Intellectual Property
Litigation Department
9/11/2007
Best Lawyers in America Recognizes Jenner & Block Partners
Over two dozen Jenner & Block Partners were recently designated for inclusion in the 2008 edition of The Best Lawyers in America. The Firm was also recognized as ranking #1 in Chicago and the State of Illinois with the most attorneys featured for the "Bet-the-Company Litigation" and "White-Collar Criminal Defense" categories.
Published biennially, the 2008 edition marks the 25th year of The Best Lawyers in America listing. This edition of Best Lawyers is based on over 1.8 million 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 28 Jenner & Block partners included in the 2008 edition are:
Appellate Law
Paul M. Smith
Donald B. Verrilli, Jr.
Banking Law
Carter H. Klein
Bankruptcy and Creditor-Debtor Rights Law
Daniel R. Murray
Ronald R. Peterson
Catherine L. Steege
Bet-the-Company Litigation
Lee A. Freeman, Jr.
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