On this day in 2003, the Supreme Court upheld the University of Michigan Law School’s affirmative action program, expressly relying on an amicus brief prepared by the firm on behalf of 65 major companies. “These corporations are participating in this case because they believe it is essential to their success to be able to hire individuals of all backgrounds who have been educated in a diverse environment,” said Partner David DeBruin, who filed the brief. The brief argued that it is essential for companies to recruit individuals who were trained and educated in a diverse environment that encompasses a broad range of people, backgrounds, cultures and ideas. For today’s students to realize their potential as corporate and community leaders of the next half century, they must, according to the brief, “be educated in an environment where they are exposed to diverse people, ideas, perspectives and interactions.”
The storied “David-and-Goliath” battle between MCI and AT&T literally changed the way we communicate. In the early 1970s, MCI had one microwave system in the Midwest while AT&T was the nation’s “Ma Bell,” the sole provider of telephone service across the country. At issue was a 1971 order by the Federal Communications Commission that opened the way for companies like MCI to launch competitive long-distance service with the Bell System nationwide. AT&T responded by directing its local Bell companies around the country to deny MCI access to local switching systems needed to reach its customers. After nearly going out of business In 1974, MCI sued and complained to the U.S. Department of Justice about these anticompetitive tactics. In turn, the Justice Department brought suit to break up AT&T.
On this day in 1980, a federal court ordered AT&T to pay MCI $1.8 billion after a jury found that Bell had violated federal antitrust laws in denying service to MCI. “The award was stunning to AT&T both monetarily and psychologically,” the New York Times reported, “because the MCI victory could generate other actions against the communications giant.” Because of the victory, it became inevitable that the government would proceed to trial in its divestiture case.
The award would later be reduced after appeal, but the impact of the case could not be overstated. On January 8, 1982, AT&T and the U.S. Department of Justice announced that AT&T would split up its $136.8 billion domain. AT&T and DOJ representatives said the move -- with AT&T relinquishing 22 operating regional subsidiaries -- would lead to increased competition for telephone service and equipment and eventually lower long-distance rates. The move revolutionized the telephone and computer industries.
By the early 1980s, MCI, based in Washington, DC, invited Jenner & Block to establish a presence in the Capital. And in 1982, when the firm opened its Washington, DC office, MCI was its anchor client.
On this day in 2011, former partner Don Verrilli was sworn in as the solicitor general of the United States. Don was nominated by President Barack Obama in January 2011 and confirmed by the U.S. Senate on a 72-16 vote. While at Jenner & Block, Don focused his practice on telecommunications law, copyright law, and First Amendment law. He was the chair of the Telecommunications Practice and co-chair of the Appellate and Supreme Court Practice.
The firm represented William Witherspoon in a case that would have major implications for how juries are selected in capital cases throughout the nation. In 1960, Witherspoon was sentenced to death by a jury. The jury was selected in a process that permitted the prosecution an unlimited number of challenges for cause with respect to any potential juror who expressed qualms about the death penalty. As a result, the jury that sentenced Witherspoon to death was composed only of persons who had no qualms about capital punishment. Jenner & Block represented Mr. Witherspoon on a pro bono basis in a post-conviction review that challenged the constitutionality of this process. The Illinois Supreme Court denied post-conviction relief. In an appeal to the United States Supreme Court, a team led by Albert Jenner, with Tom Sullivan, Jerry Solovy and John Tucker, secured a reversal of Witherspoon’s death sentence. On this day in 1968, the U.S. Supreme Court issued its opinion holding that the method of selection of the jury that sentenced Witherspoon to death was unconstitutional. The Court reasoned: “A jury that must choose between life imprisonment and capital punishment can do little more – and must do nothing less – than express the conscience of the community on the ultimate question of life or death. Yet, in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community.” The Court added: “To execute this death sentence would deprive [Witherspoon] of his life without the due process of the law.” As a result of the Witherspoon decision, more than 350 inmates on death row around the nation had their death sentences lifted.
Witherspoon was subsequently sentenced to life imprisonment. He became a model prisoner. When he became eligible for possible parole, Jerry Solovy, with assistance from associates Mike Seng and Dan Murray, mounted a concerted effort over a number of years to secure Witherspoon’s parole. His parole application enjoyed the support of all of the prison wardens under whom he served and of all of the guards in Old Joliet Prison. The Parole Board ultimately granted him parole. Witherspoon devoted the remainder of his life working at a half-way house in Detroit, helping inmates coming out of prison in their adjustment and re-entry into society.
Newman, Poppenhusen, Stern & Johnston was primarily a transactional firm in the 1920s, when name partner Jacob Newman represented the Maple Flooring Manufacturers Association, a trade association based in Grand Rapids, Michigan. Members would share weekly statistics showing charges that had been made for the various grades of lumber during the previous week, monthly statements of lumber on hand and other statistical data. In the mid-1920s, the U.S. government complained that those activities, among others, violated the Sherman Act. Newman gave the matter to Edward "The Chief" Johnston, the firm’s principal litigator. "The Chief" took depositions of lumber dealers throughout the country that dealt with the Association to show that “they had not been faced with any monopolistic price situations,” he wrote in his memoirs. The Association, he added, did not list current prices or advise members of changes in prices but disclosed only past transactions. “We contended this was permissible economic information.” On this day in 1925, the Supreme Court agreed in a landmark decision and early appellate victory for the firm. “The natural effect of the acquisition of wider and more scientific knowledge of business conditions on the minds of the individuals engaged in commerce and its consequent effect in stabilizing production and price can hardly be deemed a restraint of commerce or, if so, it cannot, we think, be said to be an unreasonable restraint, or in any respect, unlawful,” the majority opinion read.
On this day in 1984, the court gave final approval to a settlement between firm client UV Industries and Reliance Electric, a subsidiary of Exxon Corporation, ending nearly four years of litigation and relying on an “army” of firm talent. In 1979, Reliance purchased Federal Pacific Electric Company from UV. But around the same time, the Consumer Product Safety Commission investigated the circuit breakers that Federal Pacific manufactured, and Reliance complained that the circuit breakers were faulty and prone to cause fires. In 1980, Reliance sued the liquidating trustees of UV Industries for $345 million in damages or for rescission relating to its purchase of Federal Pacific. The UV Trust retained Jerry Solovy, who soon deployed what he referred to as his “UV Army,” consisting of more than 20 lawyers and numerous paralegals, most of whom spent the majority of their time working on the case for the next two to three years. The lawsuit came after the UV Trust had distributed more than $600 million to unit holders and held up UV’s distribution of another $400 million. Under the settlement, UV refunded Reliance $41,850,000 of the purchase price of Federal Pacific, enabling the UV Trust to distribute its remaining funds.
On this day in 1988, Dan Murray was appointed to serve as trustee in the bankruptcy of Chicago Missouri & Western Railway Company following the death of the first trustee, former Illinois Governor Richard B. Ogilvie. As trustee, Dan supervised operations of the railroad, skillfully preserving passenger rail service. In 2011, Dan received the W. Graham Claytor Award For Distinguished Service To Passenger Rail Transportation for his outstanding work as trustee.
On this day in 2013, the firm won a high-stakes bench trial for firm client Chesapeake Energy Corporation in a declaratory judgment action against Bank of New York Mellon Trust Company, which served as trustee for a $1.3 billion bond offering. The complex civil case unfolded at hyper-speed, as a mere six weeks passed from the time the complaint was filed until the start of the trial. Chesapeake sued BNY Mellon to challenge BNY Mellon’s determination that Chesapeake missed a contractual deadline to issue a notice exercising its right to redeem the $1.3 billion in notes at par. Chesapeake wanted to redeem the notes at par so that it could refinance the $1.3 billion in debt and save approximately $100 million in interest expense. The firm initiated the action in the SDNY on March 8, 2013, to obtain a declaration that a notice issued by March 15, 2013 was “timely and effective” to effect a redemption at par. The Court held that the contract in question was "clear and unambiguous" in giving Chesapeake the right to issue a notice to redeem at par up until March 15. The Court also held that even if the contract was not clear and unambiguous, extrinsic evidence demonstrated that the drafters intended for Chesapeake to have the right to give notice until March 15. The team included Partners Richard Ziegler, Stephen Ascher, Tony Barkow, Toby Knapp and Michael Ross; Associates Anne Cortina Perry and Ali Arain and Prashant Yerramalli; and about 20 other lawyers who were engaged on the matter night and day.
Today is Law Day, celebrating the rule of law and its significance to society. In recognition of the day, we highlight Don Verrilli's successful argument before the U.S. Supreme Court in Wiggins v. Smith in March 2003. Pro bono client Kevin Wiggins had been found guilty of capital murder after a bench trial in 1989; a jury sentenced him to death. But the two public defenders did not thoroughly investigate Mr. Wiggins’ background and, therefore, Don argued, failed to tell the jury of “powerful mitigating evidence” that could have spared him that fate. In its June 2003 ruling, the Court held that the performance of Mr. Wiggins’ attorneys at sentencing violated his Sixth Amendment right to effective counsel. The case reaffirmed the importance of the right to counsel in capital cases and helped to establish meaningful standards for defense counsel’s performance. Mr. Wiggins was resentenced to life in prison and ultimately sent to a state facility for mental health treatment and rehabilitation.
A team of bankruptcy lawyers led the post-bankruptcy sale of Chicago-based Archibald Candy Corporation, which included, among its assets, the Fannie May and Fanny Farmer brands of chocolates, recipes and 31 company-owned retail stores. Archibald had filed for bankruptcy in January 2004. In April 2004, Utah-based Alpine Confections Inc. completed the purchase of the brands and other assets for $38.9 million. The sale was selected as the “Transaction of the Year” by the Chicago chapter of the Turnaround Management Association. And the firm’s Bankruptcy, Workout and Corporate Reorganization Practice was honored by M&A Advisor Magazine for leading the “U.S. Middle Market Deal of the Year.”
On this day in 1976, John Tucker argued Elrod v. Burns before the U.S. Supreme Court. The case involved the City of Chicago’s time-honored party patronage system that typically governed how non-civil service positions were staffed. In this case, the new Democratic sheriff had been discharging employees who were “sponsored” by appointees of the previous Republican sheriff. On June 28, 1976, the Court struck down the patronage system, ruling that the First Amendment protects state and local government employees from being fired for partisan political reasons. While dissenters complained that the 5-to-3 vote dismantled a “practice as old as the Republic,” Justice William J. Brennan wrote for the majority that “the process functions as well without the practice, perhaps even better.” The Washington Post noted the significance of the ruling, observing that “the decision struck directly at the political machine of Mayor Richard J. Daley of Chicago, but it is expected to safeguard the jobs of thousands of public employees across the nation.”
In recognition of “National Library Week,” we recall Bruce Ennis’ successful challenge of the Federal Communications Decency Act on behalf of the American Library Association and other clients before the U.S. Supreme Court. The Act made it a crime to provide “indecent” material to minors over what was then a fairly new medium: the Internet. In March 1997, the Court heard arguments in Reno v. American Civil Liberties Union – a case the Washington Post called the Court’s “first venture into cyberspace.” Bruce argued that the Act infringed on the First Amendment rights of adults across the country. Readily available software blockers would be far more effective than the government in protecting children from adult material, he said. As for the Act’s impact on the First Amendment, he wrote in a brief that "it is hard to imagine a criminal standard that provides less guidance, or to conceive of a speech prohibition that would have a broader chilling effect.” On June 26, 1997, the Court ruled that free speech protections apply just as much to the fast-growing digital universe as to books and newspapers. The Act, wrote Justice John Paul Stevens, "threatens to torch a large segment of the Internet community."
Jenner & Block opened its 11,000-square-foot Los Angeles office on this day in 2009. Launched by two lateral hires from Kirkland & Ellis, Rick Richmond and Brent Caslin, the new office in the landmark U.S. Bank Tower has since grown to 33 attorneys. At the time, the Los Angeles Daily Journal quoted firm leadership saying that the recession then gripping the country would not derail plans for its West Coast expansion -- a long-term goal prompted by client needs. Rick, the office’s managing partner, recalled that his interest in Jenner & Block dated back to when he clerked at the Seventh Circuit in 1987 and saw then-partner Barry Sullivan in practice. “I had an epiphany. I said, ‘Wow, that’s how lawyers make their argument.’ I was totally transfixed,” he said at the time. Today, the office includes several federal appellate law clerks, a former White House associate counsel, a former Justice Department counsel and award-winning lawyers in their areas of focus. With their location on the Pacific Rim, attorneys in the Los Angeles office represent clients from Asia in U.S. legal matters and manage international arbitration proceedings around the Asia-Pacific region.
April has been dubbed “First Amendment Awareness Month” by some universities; in recognition, we recall Jerry Solovy’s successful argument before the Supreme Court in Bolger v. Youngs Drug Products Corp. Jerry defended Youngs Drug Products Corp, which in the early 1980s wanted to send unsolicited advertisements for contraceptive devices through the U.S. mail. Unfortunately for Youngs, its plan ran afoul of the 1865 Comstock Act, a federal law that made it a crime to sell or distribute materials that could be used for contraception or abortion or to send materials or information about such materials through the mail. Calling the Act “antediluvian,” Jerry argued that it was an unconstitutional restriction of commercial speech. In June 1983, the Court ruled that the government’s interest in purging mailboxes of contraceptive advertisements was outweighed by the harm that results from denying mailbox owners the right to receive truthful information on birth control.
The firm played a key role in placing Louisiana’s only land-based casino on solid ground. The history of the casino dates back to the 1990s, when several developers – Harrah’s, now part of our firm’s client Caesar’s; a prominent real estate developer; and a group of Louisiana investors– conceived of the facility near the foot of Canal Street in New Orleans. They formed a joint venture, and Harrah’s Jazz Casino opened as a temporary facility in May 1995. Unfortunately, luck was not with the casino, and by that November, it filed for bankruptcy – its first. As a debtor in bankruptcy, Harrah’s Jazz was represented by a Jenner & Block team that included Dan Murray, Ron Peterson, Larry Wolfson and Tim Chorvat. The casino subsequently emerged from a Chapter 11 bankruptcy proceeding and reopened on October 28, 1999 under the name of Jazz Casino Co. According to the New Orleans Times-Picayune, it lost $130 million in its first year of operation and fell short in its obligations to pay creditors. It filed for bankruptcy again, with a team including Dan, Vince Lazar and Tom Monson representing the debtors. In March 2001, the Louisiana legislature met in special session and agreed to give the casino a number of concessions, among them, cutting its minimum tax liability from $100 million a year to $50 million the first year and $60 million thereafter. On this day in 2001, the bankruptcy court in New Orleans confirmed the casino’s plan of reorganization, and the state gambling board officially approved its new contract with the casino as it emerged from its secondbankruptcy. Harrah’s New Orleans Casino, as it is now called, has remained open ever since – save for a brief period following Hurricane Katrina when the facility served as a command center for the federal government’s rescue operations in New Orleans.