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The Big Picture

2 January 2012
American Lawyer Media

by Susan Beck

We've seen some sweeping pro-business U.S. Supreme Court rulings of late, but there's a good argument that no decision will have more impact on the business community than Mayer Brown's victory last year in AT&T v. Concepcion. The court's 5-to-4 ruling, which allowed AT&T Mobility LLC to enforce an arbitration contract with its customers, paves the way for companies to avoid class actions in a range of contractual situations, from consumer matters to employment disputes.

"We feel pretty passionately that this decision will be felt broadly across our litigation system and will be positive for the litigation system," says Mayer Brown partner Andrew Pincus, who made the Supreme Court argument (and has 21 other high court appearances under his belt).

As a first-time finalist, Mayer Brown impressed us with its range of far-reaching victories. Along with its win for AT&T, the firm successfully defended Google's YouTube in a critical Internet copyright case, won a crucial preemption appellate ruling for medical device maker Medtronic, Inc., helped win the largest Fair Labor Standards Act case ever tried to verdict for Quicken Loans Inc., litigated the largest NAFTA award ever for Cargill Inc. ($77 million), and beat back challenges to permit Rahm Emanuel to be elected mayor of Chicago.

"Our secret weapon is our exceptional group of appellate lawyers," says partner Steven Wolowitz, one of the litigation group's practice leaders. "We have argued more Supreme Court cases than any other litigation department, and we have the most lawyers from the solicitor general's office. The real key to our approach is that appellate lawyers get involved in our cases from the outset."

AT&T v. Concepcion stands as a textbook example of that approach. The court's ruling last April—which The Wall Street Journal called a "body blow to consumer class actions"—was the culmination of a nine-year collaboration between Mayer Brown and AT&T to craft a strategy to resolve consumer disputes through arbitrations. The Mayer Brown team, led by partner Evan Tager, was hired in 2002 after a beauty contest. Part of the firm's appeal was its Supreme Court expertise, says Neal Berinhout, associate general counsel–litigation for AT&T Mobility & Consumer Markets. (The original client, Cingular Wireless, was later acquired by AT&T.)

The path to the Supreme Court was a long one. Although most courts upheld AT&T's arbitration clause, the firm expected trouble from the U.S. Court of Appeals for the Ninth Circuit. But before the Ninth Circuit evaluated the agreement, Mayer Brown had to deflect the Supreme Court's attention away from a rival case by T-Mobile USA, Inc., raising similar issues, which it viewed as weaker. The firm filed an amicus brief opposing a certiorari petition by T-Mobile in 2008, arguing that the Court should wait to review a new generation of arbitration agreements, like the one adopted by AT&T. The Court didn't take the T-Mobile case.

Then, in 2009, the Ninth Circuit held that AT&T's ban on class actions was unconscionable under California law, setting up the Concepcion case for high court review. The Supreme Court held that the Federal Arbitration Act preempts California law, thereby upholding AT&T's arbitration agreement. Since then, dozens of companies have reaped the benefits of the ruling: More than 50 federal and state courts have cited Concepcion in favorable arbitration rulings for companies.

"The briefs I get from Mayer Brown are uniformly great from the first draft," says AT&T's Berinhout. "Their writing is superb." He notes that while the firm was working on the Concepcion case, it also led a business coalition to defeat the Arbitration Fairness Act, an effort by the plaintiffs bar to rein in arbitration. "That showed its versatility," he says.

Another far-reaching case on Mayer Brown's docket is Viacom v. YouTube, which tests the limits of copyright law on the Internet. Mayer Brown came into the case nine months after it was filed, replacing Bartlit Beck Herman Palenchar & Scott, and joining Wilson Sonsini Goodrich & Rosati as cocounsel. Viacom claimed that YouTube was violating copyright law when users posted clips from Viacom television shows, such as South Park. The company, represented by Jenner & Block, demanded $1 billion, plus equal punitive damages.

In a key early victory, YouTube's lawyers convinced Manhattan federal district court judge Louis Stanton to change his position and find that punitive damages can't be awarded in copyright cases. (He had ruled the other way in a different case.) In June 2010 Judge Stanton granted YouTube summary judgment, finding that it had acted quickly enough to take down infringing material to be entitled to the safe harbor protections of the Digital Millennium Copyright Act. Viacom has appealed. "If the case had gone the other way, the Internet might be a very different place," says Wolowitz.

Catherine Lacavera, Google's director of litigation, calls Mayer Brown's work "terrific," and praises the firm for working so well with Wilson Sonsini. "This was a huge case and required a lot of cooperation," she says. Lacavera uses a company term of art to compliment Mayer Brown, calling them "Googley"—meaning they're nice and cooperative and follow the company's motto to "Do no evil."

In October, however, Mayer Brown lost the lead lawyer on the Google case when Andrew Schapiro joined Quinn Emanuel Urquhart & Sullivan. Mayer Brown partner John Mancini, who is working on this case, says Mayer Brown continues to be involved, working with Schapiro and Wilson Sonsini.

Most appellate cases take years, but Mayer Brown's successful efforts to show that Rahm Emanuel satisfied residency requirements to run for mayor of Chicago were compressed into three months. Led by Pincus, and assisted by election law specialists, the firm researched residency cases dating back to the nineteenth century. In a marathon hearing before the Chicago Board of Elections in December 2010, Pincus focused on the fact that Emanuel had left some possessions, including his wife's wedding dress, in his Chicago residence after he joined the Obama administration in 2009. The argument worked until an appellate court reversed a lower court ruling. With ballots already being printed without Emanuel's name, Pincus filed an emergency appeal with the Illinois Supreme Court, worked all night, and won a 7-to-0 reversal. "It was one of the most satisfying things I've done in 30 years," says Pincus.

And for Mayer Brown, it's been a satisfying run, too. 

Department Size: Partners: 178, Associates: 245, Other: 21

Department as Percent of Firm: 29%

Percent of Firm Revenue: 30%

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