CASES HANDLED BY MAYER , BROWN ROWE MAW LLP by smx43008

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									                               CASES HANDLED BY MAYER, BROWN ROWE & MAW LLP
                                   DURING THE 2006 U.S. SUPREME COURT TERM
                                                 July 16, 2007
                                                    FINAL

                                                            Granted Cases

 No.                Caption and Status                 Attorneys                  Description



06-606       Altadis USA, Inc. v. Sea Star Line LLC   A. Frey       This case arose out of the theft of a shipping container during the
             and American Trans-Freight (ATF),        E. Tager      inland portion of a shipment of cigars from Puerto Rico via
             Inc.                                     A. Schapiro   Jacksonville to Tampa. The entire shipment, both ocean and
                                                      B. Willen     surface portions, was covered by a single bill of lading that required,
             Cert. dismissed 2/12/07                                consistent with the Carriage of Goods by Sea Act (“COGSA”), that
                                                                    any claim be made within one year from the date of loss; the
                                                                    petitioner’s suit was not filed within the contractual period of
                                                                    limitations. However, the Carmack Amendment requires that
                                                                    shippers be permitted at least two years to file claims due to loss
                                                                    arising in the course of interstate surface shipments. The question
                                                                    on which the Supreme Court granted review was whether this
                                                                    requirement applies to the inland leg of an intermodal ocean-land
                                                                    shipment when there is a “through bill of lading” that applies to the
                                                                    entire voyage, rather than separate bills of lading for the two legs of
                                                                    the voyage. The Eleventh Circuit and three other Circuits have held
                                                                    that it does not; two Circuits have reached the opposite conclusion.
                                                                    We were retained to defend the Eleventh Circuit’s ruling. The case
                                                                    settled during briefing. Andy Frey (NY/DC), Evan Tager (DC), Andy
                                                                    Schapiro (NY), and Brian Willen (NY) represented respondent ATF.

05-1126      Bell Atlantic Corp. v. Twombly           S. Shapiro    The Court granted certiorari in this case to review a Second Circuit
                                                      K. Geller     decision reversing the dismissal of a complaint alleging that the
             Reversed and remanded 5/21/07            R. Favretto   defendant telephone companies conspired not to offer local
                                                                    telephone service outside their traditional territories and to violate

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                                                                       their obligations under the Telecommunications Act of 1996. By a 7-
                                                                       2 vote, the Court reversed, holding that, to survive a motion to
                                                                       dismiss, a Section 1 complaint must allege “enough factual matter
                                                                       (taken as true) to suggest that an agreement was made.” We were
                                                                       counsel for one of the petitioners, BellSouth Corporation.

05-1120      Commonwealth of Massachusetts v.        E. Jones          We have filed an amicus brief in support of respondent EPA on
             Environmental Protection Agency         R. Eggert         behalf of six prominent economists, arguing that EPA was
                                                     T. Bishop         economically justified in refusing, in response to a petition filed by
             Reversed and remanded 4/2/07            A. Sloane         States and environmental groups, to regulate tailpipe emissions of
                                                                       greenhouse gases under Section 202(a) of the Clean Air Act.

05-1157      Credit Suisse First Boston v. Billing   S. Shapiro        The Court granted our petition to review a Second Circuit decision
                                                     K. Geller         denying antitrust immunity from Sherman Act and Robinson Patman
             Reversed 6/18/07                        T. Bishop         Act claims that challenge 900+ public offerings of securities during
                                                     B. Busby          the market bubble. By a 7-1 vote, the Court reversed the Second
                                                     J. Yount          Circuit, holding that the IPO process is impliedly immune from
                                                     J. Berger         antitrust laws. Steve Shapiro argued the case.

04-1324      Day v. Crosby                           A. Schapiro       The Court granted our cert. petition on behalf of Patrick Day to
                                                     B. Busby          decide whether the one-year statute of limitations for filing a habeas
             Rehearing denied 2/26/07                J. Gaston         petition is an affirmative defense and whether it is error for a court to
                                                     L. Kovarsky       dismiss a petition as untimely after the defense has been forfeited.
                                                     A. Mohan          The Eleventh Circuit held that the district court could dismiss Day’s
                                                                       petition sua sponte even though Florida had expressly conceded
                                                                       that it was timely. The Court affirmed by a 6-3 vote. It agreed with
                                                                       our position that the statute is an affirmative defense, but declined to
                                                                       apply the forfeiture principles of the Federal Rules of Civil
                                                                       Procedure, holding instead that district courts may dismiss an
                                                                       untimely petition sua sponte if doing so would serve the interests of
                                                                       justice. We filed a motion for rehearing, which the Court held
                                                                       pending its decision in Lawrence v. Florida. After rejecting the
                                                                       petitioner’s argument in Lawrence, the Court denied our rehearing
                                                                       petition.



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06-7949      Gall v. United States           B. Willen         We have been asked to prepare an amicus brief for Families Against
                                                               Mandatory Minimums (FAMM) in this matter which presents the
             Cert. granted 6/11/07                             question whether a court of appeals may, consistent with 18 U.S.C.
                                                               3553(a) and the Supreme Court’s decision in United States v.
             Opening brief due 7/26/07                         Booker, adopt a rule that “extraordinary” deviations from the
                                                               advisory guidelines range are unreasonable unless they are
             Amicus brief due 7/26/07                          supported by “extraordinary circumstances.” Our amicus brief will
                                                               argue that such a standard is impermissible.

05-1629      Gonzales v. Duenas-Alvarez      A. Pincus         Under federal immigration statutes, a non-citizen’s conviction of an
                                             C. Rothfeld       “aggravated felony,” including a “theft offense,” triggers a range of
             Vacated and remanded 1/17/07                      extremely hard penalties: automatic expedited removal from the
                                                               country; a permanent bar on becoming a citizen; and ineligibility for
                                                               cancellation of removal or asylum. Working with the Yale Supreme
                                                               Court Advocacy Clinic, we filed an amicus brief on behalf of the
                                                               Immigration Project of the National Lawyers Guild in support of
                                                               respondent, arguing that conviction under a broadly worded state
                                                               criminal statute that reaches a wide array of relatively nonserious
                                                               conduct does not categorically qualify as a “theft offense” triggering
                                                               the aggravated felony penalties. The Court affirmed on narrow
                                                               grounds, avoiding the issue addressed in our brief.

06-157       Hein v. Freedom From Religion   A. Pincus         The issue in this case was whether a taxpayer had standing to raise
             Foundation, Inc.                C. Rothfeld       an Establishment Clause challenge to a series of conferences
                                             E. Oyer           conducted by the White House and various executive agencies
             Reversed 6/25/07                                  pursuant to the Faith-Based and Community Initiative established by
                                                               the President. Representing the respondent, we argued that the
                                                               standing principle recognized in Flast v. Cohen, 392 U.S. 83 (1968),
                                                               and reaffirmed unanimously in Bowen v. Kendrick, 487 U.S. 605
                                                               (1988), permits taxpayers to challenge on Establishment Clause
                                                               grounds an expenditure of funds pursuant to a congressional
                                                               appropriation when that expenditure is fairly traceable to the
                                                               allegedly unconstitutional conduct. By a 5-4 vote, the Court held
                                                               that there was no standing under the facts of this case. Andy Pincus
                                                               argued the case.


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04-1350      KSR International v. Teleflex, Inc.      A. Pincus          We submitted an amicus brief for the Business Software Alliance in
                                                      D. Falk            support of the petitioner’s claim that the Federal Circuit used an
             Reversed and remanded 4/30/01            M. Nemetz          improper standard to determine whether an innovation constituting a
                                                      K. Ranlett         combination of two prior inventions is “obvious,” and thus ineligible
                                                      E. Schultz         for patent protection. The Supreme Court agreed with our position,
                                                                         rejecting the Federal Circuit’s “rigid approach.”

06-1195      Odah v. United States                    P. Lacovara        We filed an amicus brief in support of the petitions for certiorari filed
                                                      J. Schroeder       by several Guantanamo detainees in two companion cases. Amici
             Boumediente v. Bush                      G. Isaac           included federal judges, diplomats, military officers, government
06-1196
                                                      D. Kirschner       officials, bar leaders, POWs, and Karen Korematsu-Haigh (Fred
             Cert. granted 6/29/07                    H. Lewis           Korematsu’s daughter). The core issue in this case is whether
                                                      J. Berger          federal courts have jurisdiction to hear habeas corpus petitions filed
             Opening brief due 8/24/07                C. Bernard         by persons held at Guantanamo Bay. In 2004, the Court ruled that
                                                      S. Kane            federal courts do have jurisdiction to hear such petitions. Since that
             Amicus brief due 8/24/07                                    time, Congress has amended the habeas statute twice in an
                                                                         apparent attempt to strip federal courts of such jurisdiction. Our brief
                                                                         argued that the reasoning behind the Court’s Rasul opinion
                                                                         demonstrates that denying such jurisdiction violates the Constitution.
                                                                         It further argued that habeas corpus, unless it has been validly and
                                                                         constitutionally suspended, ensures prompt substantive review of
                                                                         the basis of detention even in times of war. We will now file an
                                                                         amicus brief on the merits.

05-908       Parents Involved in Community            A. Pincus          The question presented by these cases was whether the
             Schools v. Seattle School District No.   C. Osolinik        Constitution bars a local school board from determining voluntarily
             1                                                           that its educational purposes will be accomplished best by educating
             Meredith v. Jefferson County Board of                       schoolchildren in a racially diverse environment and that, to achieve
05-915       Education                                                   that goal, it is necessary to use race as a factor in assigning children
                                                                         among the school district’s elementary and secondary schools. We
             Reversed and remanded 6/28/07                               submitted an amicus brief for The Leadership Conference on Civil
                                                                         Rights and The Leadership Conference on Civil Rights Education
                                                                         Fund supporting the school districts. By a 5-4 vote, the Court held
                                                                         that the schools’ selection methodologies were unconstitutional.



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06-134       The Permanent Mission of India to the   C. Rothfeld        Under the Foreign Sovereign Immunities Act (FSIA), foreign states
             United Nations v. City of New York      A. Pincus          are immune from suit unless the dispute fits under a statutory
                                                                        exception. This case presented the question whether FSIA's
             Affirmed and remanded 6/14/07                              immovable property exception, 28 U.S.C. § 1605(a)(4), gave U.S.
                                                                        courts jurisdiction to declare the validity of tax liens placed by the
                                                                        City of New York on property owned by India and Mongolia. Working
                                                                        with the Yale Law School Supreme Court Advocacy Clinic, we filed
                                                                        an amicus brief supporting respondent (New York) on behalf of the
                                                                        International Municipal Lawyers Association and the U.S.
                                                                        Conference of Mayors. We argued that the plain text of FSIA, the
                                                                        contemporaneous materials relied upon by Congress, and the post-
                                                                        enactment practice indicated that property tax disputes satisfy the
                                                                        immovable property exception. The Court agreed with our position.

05-1256      Philip Morris USA v. Williams           A. Frey            The Oregon Supreme Court upheld a $79.5 million punitive award in
                                                     K. Geller          this case brought by the widow of a smoker. The Court granted our
             Vacated and remanded 2/20/07            E. Tager           petition for certiorari to address two questions: (i) whether the
                                                     A. Schapiro        Oregon Supreme Court erred in holding that a jury in an individual
                                                     L. Goldman         case may punish the defendant for harms suffered by non-parties so
                                                     N. Levin           long as those harms arose from conduct similar to the conduct that
                                                     D. Kirschner       injured plaintiff; and (ii) whether the Oregon Supreme Court erred in
                                                                        holding that a finding of high reprehensibility can “override” the
                                                                        constitutional requirement that punitive damages be reasonably
                                                                        related to the plaintiff’s harm. The Court agreed with us that juries
                                                                        may not punish defendants for harms suffered by non-parties and
                                                                        that courts have a constitutional obligation to guard against the risk
                                                                        of juries doing so. Accordingly, it vacated and remanded without
                                                                        reaching the second issue. Andy Frey argued the case for Philip
                                                                        Morris.

06-179       Riegel v. Medtronic, Inc.               K. Geller          The Court granted certiorari in this case to review of the Second
                                                     D. Gossett         Circuit’s decision holding that petitioner’s state-of-law tort claims are
             Cert. granted 6/25/07                   A. Tauber          preempted by federal law under the Medical Device Amendments to
                                                                        the Food, Drug and Cosmetics Act. We are co-counsel for
             Opening brief due 8/27/07                                  respondent Medtronic, Inc.


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06-457       Rowe v. New Hampshire Motor     E. Tager          The Federal Aviation Administration Authorization Act (FAAAA)
             Transport Association           J. Wilson         provides that states may not enact laws that regulate the prices,
                                                               routes, or services of any motor carrier of property. In an effort to
             Cert. granted 6/25/07                             keep tobacco products out of the hands of children under the age of
                                                               18, Maine has imposed certain requirements on motor carriers that
             Opening brief due 8/23/07                         deliver tobacco products direct to consumers. The question
                                                               presented by this case is whether those laws are preempted by the
                                                               FAAAA. We will file an amicus brief for the American Trucking
                                                               Associations arguing that they are.

05-1575      Schriro v. Landrigan            A. Pincus         This death-penalty case involved the defendant’s right to a
                                             C. Rothfeld       reasonable investigation by counsel of mitigating evidence that
             Reversed and remanded 5/14/07                     might be introduced during the sentencing phase of the proceeding.
                                                               Working with the Yale Supreme Court Advocacy Clinic, we filed an
                                                               amicus brief on behalf of the National Association of Criminal
                                                               Defense Lawyers in support of respondent, arguing that a
                                                               constitutionally defective investigation by counsel is not excused by
                                                               the defendant’s waiver of his right to present mitigating evidence to
                                                               the sentencing decisionmaker because such a waiver cannot be
                                                               knowing and intelligent without advice from the defendant’s attorney
                                                               regarding the range of potentially mitigating evidence that might be
                                                               available, advice that must be informed by the results of the
                                                               attorney’s reasonable investigation. The Court rejected that
                                                               contention.

05-1631      Scott v. Harris                 A. Pincus         This case presented the question whether a police officer’s decision
                                             C. Rothfeld       to use a high-speed chase to effect the seizure of a motorist who
             Reversed 4/30/07                                  was speeding and driving dangerously was reasonable under the
                                                               Fourth Amendment. Working with the Yale Supreme Court
                                                               Advocacy Clinic, we filed an amicus brief supporting petitioner (the
                                                               police officer) on behalf of the National Association of Counties,
                                                               National League of Cities, Council of State Governments,
                                                               International City/County Management Association, U.S. Conference
                                                               of Mayors, and International Municipal Lawyers Association. We
                                                               argued that the generalized impact of certain policing techniques,
                                                               including high-speed chases, entails a degree of public and political
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   No.               Caption and Status                  Attorneys                         Description



                                                                             oversight that helps ensure the reasonableness of the technique.
                                                                             The Court agreed with our position.

 06-1221      Sprint/United Management Co. v.           E. Tager             We filed an amicus brief on behalf of AT&T Mobility LLC (formerly
              Mendelsohn                                A. Parasharami       known as Cingular Wireless LLC) and Honeywell International Inc. in
                                                                             support of Sprint’s petition for a writ of certiorari, which raises the
              Cert. granted 6/11/07                                          question whether a district court must admit “me, too” evidence –
                                                                             i.e., testimony by nonparties who allege discrimination at the hands
              Opening brief due 8/9/07                                       of persons who played no role in the adverse employment decision
                                                                             challenged by the plaintiff. The Court granted the petition, and we
              Amicus brief due 8/9/07                                        will now file an amicus brief on the merits on behalf of the Chamber
                                                                             of Commerce of the Untied States.

  06-484      Tellabs, Inc. v. Makor Issues & Rights,   S. Shapiro           The Private Securities Litigation Reform Act of 1995 (PSLRA)
              Ltd.                                      T. Bishop            requires plaintiffs to “state with particularity facts giving rise to a
                                                        B. Busby             strong inference that the defendant acted” with scienter, i.e., that the
              Vacated and remanded 6/21/07                                   defendant’s intention was to deceive, manipulate, or defraud. 15
                                                                             U.S.C. § 78u-4 (b)(2) (emphasis added). In this case, the Court held
                                                                             that, in order to qualify as “strong,” “an inference of scienter” must be
                                                                             more than merely plausible or reasonable – it must be cogent and at
                                                                             least as compelling as any opposing inference of nonfraudulent
                                                                             intent. We filed an amicus brief for the Securities Industry and
                                                                             Financial Markets Association in support of the petitioner.

 05-1345      United Haulers Association v. Oneida-     E. Tager             The Court granted our cert. petition to decide whether a county’s
              Herkimer Solid Waste Management           M. Nemetz            requirement that all waste collected within its borders be disposed of
              Authority                                 E. Volokh            at a county-owned waste management facility violates the dormant
                                                        J. Wilson            Commerce Clause. It proceeded to hold, by a vote of 6-3, that there
              Affirmed 4/30/07                                               is no Commerce Clause violation when the preferred facility is
                                                                             publicly owned. Evan Tager argued the case.

06-5754       United States v. Rita                     B. Willen            This case presented significant questions arising out of the Supreme
                                                                             Court’s decision in United States v. Booker, 543 U.S. 220 (2005),
              Affirmed 6/21/07                                               regarding the application of the Federal Sentencing Guidelines. We
                                                                             filed an amicus brief on behalf of Families Against Mandatory
                                                                             Minimums, arguing that federal courts engaged in the sentencing
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                                                                    process should pay particular attention to the “parsimony principle”
                                                                    developed by Enlightenment-era thinkers such as Beccaria and
                                                                    Bentham. We also argued against erecting a presumption in favor
                                                                    of a Guidelines sentence and contended that appellate review of
                                                                    sentencing decisions should focus primarily on ensuring that district
                                                                    courts have considered their obligations thoroughly and articulated
                                                                    their reasons fully. The Court held that in conducting the review
                                                                    required under Booker, it is not impermissible for the federal courts
                                                                    of appeals to adopt a non-binding presumption that a sentence
                                                                    imposed within the range called for by the Federal Sentencing
                                                                    Guidelines is reasonable.

05-1657      Washington v. Washington Education   D. Falk           In many states, a union that is the bargaining representative at an
             Association                          E. Volokh         employer may force employees who are not members to pay agency
                                                                    shop fees in lieu of union dues to cover collective bargaining costs.
             Vacated and remanded 6/14/07                           A Washington state statute forbids unions to use a non-union
                                                                    member’s fees for political activity unrelated to collective bargaining
                                                                    without obtaining the non-member’s consent (i.e., an opt-in system
                                                                    rather than the opt-out system that, under Supreme Court
                                                                    precedent, is the minimum required to protect the non-member’s
                                                                    First Amendment rights). The Court granted certiorari in this case to
                                                                    review a Washington Supreme Court decision holding that the opt-in
                                                                    statute violated the First Amendment rights of unions. We filed an
                                                                    amicus brief on behalf of the American Legislative Exchange Council
                                                                    in support of the petitioner. The Court agreed with our position.

05-381       Weyerhaeuser Co. v. Ross-Simmons     A. Pincus         The Court granted our cert. petition to decide whether the two-part
             Hardwood                             C. Rothfeld       test for evaluating predatory pricing claims established in Brooke
                                                  N. Levin          Group Ltd. v. Brown & Williamson Tobacco Co., 509 U.S. 209
             Vacated and remanded 2/20/07                           (1993), applies to predatory buying claims too or whether liability
                                                                    instead may be based simply on a jury finding that the defendant
                                                                    paid a higher price for inputs than necessary. Agreeing with us that
                                                                    the Brooke Group standard applies equally to predatory buying
                                                                    claims, the Court vacated and remanded. Andy Pincus argued the
                                                                    case.


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                                                      CERT. PETITIONS AND APPEALS

 No.                     Caption and Status            Attorneys                        Description

05-1606           ANR Pipeline Co. v. Louisiana Tax   A. Pincus           We filed an amicus brief for the Interstate National Gas
                  Commission                          C. Rothfeld         Association of America (“INGAA”) in support of petitioners’ position
                                                      D. Lisitza          that Louisiana’s re-valuation of the refund due from payment of an
                  Cert. denied 10/2/06                                    unconstitutional tax violated interstate pipelines’ right to a “clear
                                                                          and certain remedy” under the Due Process Clause.

06-144            BASF Corp. v. Peterson              S. Shapiro          In this national class action, BASF was held liable under state law
                                                      K. Geller           for engaging in an “unconscionable” commercial practice; the
                  Cert. denied 11/13/06                                   plaintiffs’ theory was that BASF acted wrongfully when it declined
                                                      C. Rothfeld
                                                                          to make one of its herbicides available for use on certain crops,
                                                      M. Nemetz           which resulted in the plaintiffs having to purchase a more
                                                      E. Volokh           expensive herbicide for use on those crops. Plaintiffs established
                                                      A. Tauber           their claim of “unconscionability” by pointing, among other things,
                                                      N. Stephanopoulos   to a truthful article sponsored by BASF that outlines penalties for
                                                      (S.A.)              off-label use of herbicides and to accurate reports by a BASF
                                                                          employee alerting state regulatory authorities to possible off-label
                                                                          use of BASF’s herbicide. A prior petition for certiorari was granted,
                                                                          the Minnesota Supreme Court judgment affirming liability vacated,
                                                                          and the case remanded for further consideration in light of Bates v.
                                                                          Dow Agrosciences, LLC, 554 U.S. 1012 (2005), which held that
                                                                          state regulation of pesticide labels is preempted by the Federal
                                                                          Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). After
                                                                          remand, the Minnesota Supreme Court reinstated its prior
                                                                          judgment. We filed a second petition for certiorari, arguing that (i)
                                                                          the state-law claim is preempted by FIFRA and (ii) the use of
                                                                          truthful speech to establish liability violates the First Amendment.

06-1111           Brooks v. Vassar                    A. Pincus           Working with the Yale Supreme Court Advocacy Clinic, we filed a
                                                      C. Rothfeld         cert. petition challenging the constitutionality of two aspects of
                  Cert. denied 5/14/07                                    Virginia’s wine regulation. Virginia law provides that Virginia
                                                                          residents may purchase unlimited quantities of wine at in-state
                                                                          liquor stores, but may carry into the state for personal use only one
                                                                          gallon of wine purchased at out-of-state retailers. In addition,
                                                                          Virginia operates its own ABC stores, which are the exclusive in-
                                                                          state sources of hard liquor; those stores also sell wine, but by

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                                                                               statute are limited to selling only wine produced in Virginia. We
                                                                               argued that both of the provisions violate the Commerce Clause,
                                                                               that the first is not saved by the Twenty First Amendment because
                                                                               it is blatantly protectionist, and that the second is not saved by the
                                                                               market-participant exception to the Commerce Clause because
                                                                               Virginia uses its monopoly power over the sale of hard liquor to
                                                                               unfairly encourage the sale of Virginia wine.

05-431            Burke v. Wachovia Bank, N.A.            C. Rothfeld          In this case, the Second Circuit held that Connecticut statutes
                                                                               regulating national bank operating subsidiaries are preempted by
                  Cert. denied 4/23/07                                         the National Bank Act and regulations of the Office of the
                                                                               Comptroller of the Currency. We assisted in preparation of the
                                                                               brief opposing the cert. petition filed by Connecticut's
                                                                               Commissioner of Banking. The Court held the case pending its
                                                                               decision in Watters v. Wachovia Bank, N.A., No. 05-1342, after
                                                                               which it denied certiorari..

05-1138           Corzine v. American Trucking            C. Rothfeld          We have opposed certiorari in this case in which the Third Circuit
                  Associations, Inc.                      E. Tager             held that New Jersey’s restrictions on the activities of large trucks
                                                                               violated the dormant commerce clause.
                  Cert. denied 10/12/06


05-1157           Credit Suisse First Boston v. Billing   S. Shapiro           On behalf of Merrill Lynch and another dozen leading investment
                                                          K. Geller            banks and asset management firms, we urged the Court to review
                  Cert. granted 12/7/06                   T. Bishop            a Second Circuit decision denying antitrust immunity from
                                                          J. Yount             Sherman Act and Robinson Patman Act claims that challenge
                                                          J. Berger            900+ public offerings of securities during the market bubble. In
                                                          B. Busby             response to the Court’s invitation to file a brief expressing the
                                                                               views of the United States, the Solicitor General recommended
                                                                               granting certiorari, which the Court thereafter did.

06-478            Dow Chemical Co. v. United States       S. Shapiro           We sought review of a court of appeals decision that gave de novo
                                                          J. Williamson        review to the question whether an investment program was a
                  Cert. denied 2/20/07                    T. Bishop            “sham” designed to create tax deductions rather than to achieve
                                                                               legitimate investment goals. The district court found the program
                                                                               to be bona fide and sustained the tax deductions. We also argued
                                                                               that the court of appeals erred when it created an exclusionary rule
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                                                                           that removed from consideration evidence showing a bona fide
                                                                           investment intent.

06-1068           Ford Motor Co. v. Buell-Wilson       E. Tager            We filed an amicus brief for the Product Liability Advisory Council
                                                       C.J. Summers        to file an amicus brief in support of Ford’s certiorari petition, which
                  Granted, vacated, and remanded                           asks the Court to decide (i) whether California punitive liability law
                                                                           is unconstitutional as applied in this case because it deprives
                                                                           manufacturers of fair notice of how to design products so as to
                                                                           avoid punishment and (ii) whether the California courts improperly
                                                                           assessed the reprehensibility of the conduct in this product-liability
                                                                           case by disregarding objective indicators that the product’s design
                                                                           was reasonable and placing inappropriate emphasis on the
                                                                           reprehensibility factor identified in previous cases involving
                                                                           economic torts. The Court GVR’ed the case for further
                                                                           consideration in light of its decision in Philip Morris USA v.
                                                                           Williams.

06-543            Illinois Public Telecommunications   J. Muench           The Illinois Public Telecommunications Association (IPTA”) filed a
                  Association v. Illinois Commerce     R. Dow              cert. petition seeking review of an unpublished decision of the
                  Commission                                               Illinois Appellate Court in which the court affirmed an Illinois
                                                                           Commerce Commission (“ICC”) order denying the IPTA’s claim for
                  Cert. denied 2/20/07                                     refunds. The IPTA contended that it was entitled to refunds
                                                                           because our client, Illinois Bell (not AT&T Illinois), allegedly
                                                                           charged excessive rates in violation of the “new services test”
                                                                           established by Section 276 of the Federal Telecommunications Act
                                                                           of 1996 (“FTA”) and the Federal Communications Commission
                                                                           (“FCC”) implementing regulations. The ICC and the Appellate
                                                                           Court held that, although the rates charged violated the “new
                                                                           services test,” because those rates were Commission-approved,
                                                                           any award of refunds would violate the prohibition against
                                                                           retroactive ratemaking. We filed a brief in opposition on behalf of
                                                                           Illinois Bell.

06-1307           Jones v. Peralta                     C. Rothfeld         Under Heck v. Humphrey, 512 U.S. 477 (1994), a civil rights action
                                                       A. Pincus           brought by a prisoner seeking damages cannot proceed under 42
                  Cert. denied 6/25/07                                     U.S.C. 1983 if success by the prisoner would demonstrate the
                                                                           invalidity of his confinement or affect the length of his sentence; in

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                                                                           such a case, the prisoner must first seek habeas corpus relief
                                                                           before bringing a Section 1983 damages action. In this case, a
                                                                           prisoner challenged the constitutionality of a prison disciplinary
                                                                           proceeding that affected both the conditions and the length of his
                                                                           confinement. The state moved to dismiss the action under Heck,
                                                                           arguing that the constitutional claims first had to be considered by
                                                                           a habeas court because, if successful, they would shorten the
                                                                           length of the prisoner’s confinement. The Second Circuit rejected
                                                                           that argument, holding that the prisoner could proceed immediately
                                                                           with his Section 1983 action so long as he permanently waived
                                                                           any relief affecting the length of his confinement. The State then
                                                                           sought certiorari, arguing that this decision is inconsistent with
                                                                           Heck. Working with the Yale Supreme Court Advocacy Clinic, we
                                                                           filed a brief in opposition to the petition.

05-1496          Knudsen v. Liberty Mutual Insurance   S. Shapiro          The Class Action Fairness Act (“CAFA”) permits the removal to
                 Co.                                   J. Schmidt          federal court of certain class actions “commenced” after its
                                                       H. Roin             effective date. The Seventh Circuit held that Liberty Mutual
                 Cert. denied 10/2/06                  J. Bertocchi        properly removed this putative nationwide class action even
                                                       S. Kane             though the plaintiffs filed their complaint before CAFA’s effective
                                                                           date because the state court’s post-CAFA class certification order
                                                                           so expanded the case that it amounted to the “commencement” of
                                                                           a new action. The plaintiffs sought review of the Seventh Circuit’s
                                                                           decision, and we filed a brief in opposition on behalf of Liberty
                                                                           Mutual, arguing (among other things) that the courts of appeals
                                                                           uniformly hold that post-CAFA conduct can commence a new
                                                                           action and that the small and decreasing number of pending class
                                                                           actions filed before CAFA’s effective date limits the importance of
                                                                           the issue presented.

06-11            Leclerc v. Webb                       J. Sarles           We filed a petition for certiorari challenging, on equal protection
                                                       E. Volokh           and preemption grounds, a Louisiana rule that bars lawfully
                 Cert. denied 6/25/07                  H. Germann          admitted nonimmigrant aliens from admission to the state Bar. A
                                                       H. Lewis            divided Fifth Circuit panel upheld the rule, holding that state laws
                                                                           discriminating against this category of aliens are not subject to
                                                                           strict scrutiny, that the rule passes muster under the rational basis
                                                                           standard, and that federal immigration law and policy do not

        DCDB01 20860964.1 16-Jul-07 12:17                             12
 No.                     Caption and Status           Attorneys                        Description

                                                                         preempt the rule. There were seven dissents from denial of
                                                                         rehearing en banc. The Court invited the Solicitor General to file a
                                                                         brief expressing the views of the United States. The Solicitor
                                                                         General recommended that the Court deny certiorari.

05-1294           McLane Western, Inc. v. Colorado   C. Rothfeld         This case involved a Commerce Clause challenge to a state tax
                  Department of Revenue              E. Tager            that makes use of a shifting tax base. Colorado imposed a tax on
                                                                         certain tobacco products that is assessed as a percentage of the
                  Cert. denied 10/2/06                                   price paid for the products by the first in-state distributor. Because
                                                                         the price goes up as products move along the distribution chain,
                                                                         the effect of this structure is to impose a higher tax on products
                                                                         that are distributed across state lines than on those that stay
                                                                         exclusively in Colorado. The Colorado courts upheld the tax
                                                                         against the constitutional challenge. We filed a brief supporting
                                                                         the petition on behalf of the American Trucking Associations, Inc.
                                                                         and the U.S. Chamber of Commerce.

06-643            Miller v. United States            D. Melton           We filed an amicus brief on behalf of the Chicago Council of
                                                     J. Sarles           Lawyers in support of a petition for certiorari filed by Stacy Miller.
                  Cert. denied 3/19/02                                   We contended that a Seventh Circuit panel’s refusal to permit oral
                                                                         argument – over the objections of one panel member – violated
                                                                         F.R.A.P. 34(a)(2) which provides that oral argument “must be
                                                                         allowed” unless the panel unanimously deems it unnecessary.

06-345            MiPro Homes, LLC v. Mount Laurel   K. Geller           We have filed a petition for certiorari to the Supreme Court of New
                  Township                           T. Bishop           Jersey challenging as a violation of the public use requirement of
                                                     J. Sarles           the Takings Clause an ad hoc and pretextual exercise of eminent
                  Cert. petition filed 4/6/07                            domain power that was not based on comprehensive planning.

                  Opposition filed 6/6/07

                  Reply brief filed 6/19/07


06-1195           Odah v. United States              P. Lacovara         We filed an amicus brief in support of the petitions for certiorari
                                                     J. Schroeder        filed by several Guantanamo detainees in two companion cases.
                  Boumediente v. Bush                G. Isaac            Amici included federal judges, diplomats, military officers,
06-1196
                                                     D. Kirschner        government officials, bar leaders, POWs, and Karen Korematsu-
         DCDB01 20860964.1 16-Jul-07 12:17                          13
 No.                     Caption and Status                 Attorneys                         Description

                  Cert. denied 4/2/07                      H. Lewis            Haigh (Fred Korematsu’s daughter). The core issue in this case is
                                                                               whether federal courts have jurisdiction to hear habeas corpus
                  Rehearing granted, order denying cert.                       petitions filed by persons held at Guantanamo Bay. In 2004, the
                  vacated, and cert. granted 6/29/07                           Court ruled that federal courts do have jurisdiction to hear such
                                                                               petitions. Since that time, Congress has amended the habeas
                                                                               statute twice in an apparent attempt to strip federal courts of such
                                                                               jurisdiction. Our brief argued that the reasoning behind the Court’s
                                                                               Rasul opinion demonstrates that denying such jurisdiction violates
                                                                               the Constitution. It further argued that habeas corpus, unless it
                                                                               has been validly and constitutionally suspended, ensures prompt
                                                                               substantive review of the basis of detention even in times of war.

06-1380           Parker v. Sedona Golf Resort             K. Geller           This case involves a circuit split over when a party should be
                                                           D. Gossett          judicially estopped from changing a position it has previously taken
                  Cert. petition filed 4/18/07             M. Paisner          in litigation. The underlying dispute is over the ownership of a
                                                                               private road connecting the main highway to various real estate
                  Opposition filed 6/15/07                                     developments in Sedona, Arizona. The plaintiff, a golf resort
                                                                               abutting the road, sought to quiet title in the road against the
                  Reply brief filed 6/26/07                                    claims of the defendant, our client. The bankruptcy court initially
                                                                               ruled in favor of the plaintiff, but that ruling was thereafter reversed
                                                                               on appeal to the district court. On remand, the bankruptcy court
                                                                               again quieted title in favor of the plaintiff, this time based on factual
                                                                               and legal arguments inconsistent with those the plaintiff had
                                                                               previously asserted. The bankruptcy court, as well as the district
                                                                               court and Ninth Circuit, rejected the defendant’s argument that the
                                                                               plaintiff should have been judicially estopped from asserting that
                                                                               inconsistent position. We have petitioned for certiorari on the
                                                                               ground that the Ninth Circuit erred in holding that judicial estoppel
                                                                               does not apply to bar the assertion of a later inconsistent position
                                                                               solely because a judgment based on that prior position was
                                                                               thereafter reversed on appeal.

06-937            Quanta Computer, Inc. v. LG              A. Pincus           We have filed an amicus brief on behalf of several computer
                  Electronics, Inc.                        C.J. Summers        manufacturers in support of the certiorari petition, which asks the
                                                                               Court to decide whether the Federal Circuit has abandoned the
                  Cert. petition filed 11/30/06                                traditional doctrine of patent exhaustion – according to which all
                                                                               patent claims in a patented article are exhausted upon the first

         DCDB01 20860964.1 16-Jul-07 12:17                                14
 No.                   Caption and Status                  Attorneys                       Description

                Opposition filed 3/9/07                                      authorized sale of the article – by allowing a patent owner to
                                                                             restrict use and enjoyment of a patented article after an authorized
                Amicus brief filed 3/9/07                                    sale through a license to manufacture and sell the article that
                                                                             purports not to authorize use of the article by the purchaser. The
                Reply brief filed 3/20/07                                    Court has invited the Solicitor General to file a brief expressing the
                                                                             views of the United States.
                Order requesting the views of United
                States 4/16/07


05-1586         Reid v. Spazio, SpA and Finmeccania,      C. Frost           We filed a cert. petition asking the Court to decide whether the
                SpA                                       W. Knull           Constitution permits Texas to assert personal jurisdiction over
                                                          B. Busby           respondents, which in turn raises three issues: (i) whether courts
                Cert. denied 10/2/06                      J. Gaston          may ignore a defendant’s imputed or actual participation in a
                                                                             conspiracy to harm a forum business in the forum state; (ii)
                                                                             whether courts may weigh a defendant’s forum contacts in
                                                                             isolation from each other; and (iii) whether courts may ignore a
                                                                             defendant’s voluntary business activities in a forum because
                                                                             another party initially chose the forum as the site for those
                                                                             activities.

06-1204         Republic of the Philippines v. Pimentel   K. Geller          This case involves the appropriate disposition of $35 million – the
                                                          C. Rothfeld        so-called “Arelma assets” – that is alleged to be money Ferdinand
                Cert. petition filed 3/5/07               D. Gossett         Marcos unlawfully acquired while President of the Republic of the
                                                          S. Bray            Philippines. The money is claimed by several parties, including
                Opposition filed 4/2/07                   D. Lisitza         the Republic, and also is the subject of ongoing litigation in the
                                                                             Philippine courts. The Ninth Circuit held that the Republic
                Reply brief filed 4/17/07                                    appropriately could assert sovereign immunity in this litigation, and
                                                                             also held that it is a “necessary” party to the case (as that term is
                Order requesting the views of the                            used in Federal Rule of Civil Procedure 19(a)). It thereafter held
                United States 4/16/07                                        that the Republic was not an “indispensable” party under Rule
                                                                             19(b), however, largely on the ground that the Republic’s claim to
                                                                             the Arelma assets would fail on the merits. We have petitioned for
                                                                             certiorari (on behalf of the Republic, its Presidential Commission
                                                                             for Good Government, and our client, the Philippine National
                                                                             Bank), arguing that the Ninth Circuit erred in looking to the merits
                                                                             of the Republic’s claim to the Arelma assets, thus in effect
                                                                             negating its valid claim to sovereign immunity. The Court has
       DCDB01 20860964.1 16-Jul-07 12:17                                15
 No.                     Caption and Status              Attorneys                       Description

                                                                           invited the Solicitor General to file a brief expressing the views of
                                                                           the United States.

06-179            Riegel v. Medtronic, Inc.             K. Geller          On behalf of Medtronic, Inc., a manufacturer of medical devices,
                                                        D. Gossett         we opposed review of the Second Circuit’s decision holding that
                  Cert. granted 5/25/07                 A. Tauber          petitioner’s state-law tort claims are preempted by federal law
                                                                           under the Medical Device Amendments to the Food, Drug and
                                                                           Cosmetics Act. The Court invited the Solicitor General to file a
                                                                           brief expressing the views of the United States. The Solicitor
                                                                           General recommended that the Court deny certiorari, yet the Court
                                                                           nonetheless granted the petition.

06-1545           R.J. Reynolds Tobacco Co. v. Howard   A. Frey            In this class action involving 700,000 Florida smokers, the Florida
                  A. Engle                              K. Geller          Supreme Court held that certain highly general findings made by
                                                        A. Schapiro        the jury relating to the conduct of various cigarette manufacturers
                  Cert. petition filed 5/21/07          B. Willen          over a 50-year period would have res judicata effect in each of the
                                                                           potentially thousands of cases yet to be brought by individual class
                  Response due 8/6/07                                      members. The Court also upheld compensatory damages awards
                                                                           on behalf of two individual plaintiffs, ignoring the defendants’
                                                                           arguments that plaintiffs’ claims were expressly preempted by the
                                                                           Federal Cigarette Labeling and Advertising Act, as construed by
                                                                           the Supreme Court in Cippollone v. Liggett Group, 505 U.S. 504
                                                                           (1992). We have filed a cert. petition on behalf of Philip Morris
                                                                           challenging the Florida Supreme Court’s ruling. We argue, first,
                                                                           that the court’s res judicata holding violates the long-standing rule
                                                                           – incorporated into the Due Process Clause – that a court may not
                                                                           give preclusive effect to findings whose generality make it
                                                                           impossible to determine precisely what facts the jury found.
                                                                           Second, we argue that the Florida courts misapplied express
                                                                           preemption in allowing plaintiffs’ failure-to-warm and label-
                                                                           neutralization claims.

06-929            Rodriguez-Zapata v. Gonzales          B. Busby           We filed a cert. petition on behalf of Antonio Rodriguez-Zapata
                                                        A. Mohan           arguing that lawful permanent residents convicted of an
                  Cert. denied 6/11/07                                     aggravated felony in a jury trial prior to passage of IIRIRA remain
                                                                           eligible for Section 212(c) discretionary relief from removal. The
                                                                           Fifth Circuit held that denial of the right to seek Section 212(c)

         DCDB01 20860964.1 16-Jul-07 12:17                            16
 No.                     Caption and Status                  Attorneys                          Description

                                                                                  relief is not a violation of due process. The cert. petition presented
                                                                                  two questions that have divided the courts of appeals: (i) is a
                                                                                  showing of reliance on the prior state of the law required to
                                                                                  establish that a statute creates an impermissible retroactive effect
                                                                                  and, if so, what type of reliance is required, and (ii) is the right to
                                                                                  seek discretionary relief from removal under former Section 212(c)
                                                                                  protected by the Due Process Clause of the Fifth Amendment.

06-1221           Sprint/United Management Co. v.           E. Tager              We filed an amicus brief on behalf of AT&T Mobility LLC (formerly
                  Mendelsohn                                A. Parasharami        known as Cingular Wireless LLC), and Honeywell International Inc.
                                                                                  in support of Sprint’s petition for a writ of certiorari, which raises
                  Cert. granted 6/11/07                                           the question whether a district court must admit “me, too” evidence
                                                                                  – i.e., testimony by non-parties who allege discrimination at the
                                                                                  hands of persons who played no role in the adverse employment
                                                                                  decision challenged by the plaintiff.

06-484            Tellabs, Inc. v. Makor Issues & Rights,   S. Shapiro            We filed an amicus brief for the Securities Industry and Financial
                  Ltd.                                      T. Bishop             Markets Association in support of Tellabs’ certiorari petition, which
                                                            B. Busby              asks the Court to decide whether a court must weigh competing
                  Cert. granted 1/5/07                                            inferences when it determines whether Section 10(b) pleadings
                                                                                  establish a “strong inference” of scienter under the PSLRA

06-267            Turkmenistan, Government of v.            J. Sarles             We filed a petition for certiorari on behalf of the Government of
                  Bridas                                    W. Knull              Turkmenistan. The Fifth Circuit upheld an arbitration award
                                                            T. Tyler              against the Government, a nonsignatory to the underlying
                  Cert. denied 11/27/06                     J. Gaston             arbitration agreement, on the ground that it is the alter ego of a
                                                            L. Kovarsky           signatory state enterprise. We contended that this ruling
                                                                                  improperly overrode the presumption of independence to which
                                                                                  jurisdictionally independent state enterprises are entitled under
                                                                                  Supreme Court precedent.

05-1345           United Haulers Association v. Oneida-     E. Tager              The Court granted our cert. petition to decide whether a county’s
                  Herkimer Solid Waste Management           M. Nemetz             requirement that all waste collected within its borders be disposed
                  Authority                                 E. Volokh             of at a county-owned waste management facility violates the
                                                            J. Wilson             dormant commerce clause.
                  Cert. granted 9/26/06


         DCDB01 20860964.1 16-Jul-07 12:17                                   17
 No.                    Caption and Status    Attorneys                       Description

06-73            Wilk v. United States       A. Pincus          The federal death penalty statute requires that the government file
                                             C. Rothfeld        a notice of its intent to seek the death penalty “a reasonable time
                 Cert. denied 3/19/07                           before trial.” There is a conflict among the courts of appeals
                                                                regarding the meaning of this requirement and, in particular, as to
                                                                whether delaying the trial can render a notice reasonable
                                                                regardless of when it was filed in relation to the previously-
                                                                scheduled trial date. Working with the Yale Supreme Court
                                                                Advocacy Clinic, we filed an amicus brief on behalf of the Florida
                                                                Association of Criminal Defense Lawyers in support of the
                                                                certiorari petition, arguing that the issue is an important one that
                                                                the Court should address both because of the arbitrariness in
                                                                administration of the death penalty that results from the application
                                                                of different interpretations of the statute in different circuits and
                                                                because of the waste of resources that results from uncertainty
                                                                about the proper standard.




        DCDB01 20860964.1 16-Jul-07 12:17                  18

								
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