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Playing the Long Game: Mayer Brown, Finalist for Litigation Department of the Year

19 December 2017
American Lawyer

Mayer Brown leads the charge in industry-changing litigation, earning it a spot as finalist for the Litigation Department of the Year.

Spokeo was less than four years old when it faced a class action with the potential to destroy the budding person-search company. The suit, filed in 2010, alleged that Spokeo Inc. violated the Fair Credit Reporting Act by providing incorrect information about certain individuals. The company turned to Mayer Brown.

From the start, the defense team saw the potential for broad-reaching precedent. “What really stuck in the Spokeo C-suite’s mind when we made this decision was the nature of this case where the plaintiff had no injuries,” says general counsel Jason Matthes, who joined the company when the litigation had reached the appellate stage.

Instead of settling to avoid class certification, Mayer Brown took its “no-harm” argument—that the alleged FCRA violations hadn’t caused actual damages—all the way to the U.S. Supreme Court, where the justices ruled in Spokeo’s favor. The decision was a game-changer for class actions, setting the precedent that litigants must show actual injury, not just a statutory violation. Since the ruling in May 2016, Spokeo has been cited in more than 500 cases, with 40 percent of courts finding no standing, according to the firm.

Mayer Brown has found success in out-of-the-box arguments that shape not just the client’s path forward, but an entire industry’s practices, making the firm a clear finalist for Litigation Department of the Year.

In Rapid Litigation Management v. CellzDirect, Mayer Brown, along with co-counsel at Loeb & Loeb, fought for their client’s right to patent a new process for re-refreezing donor liver cells. The appellate win in Illinois was a victory not just for CellzDirect, but for any owner of life science patents for innovative processes.

The firm took on the practice of gerrymandering in Maryland in Shapiro v. McManus: After the plaintiffs’ losses at the district court and U.S. Court of Appeals for the Fourth Circuit, Mayer Brown jumped in at the U.S. Supreme Court with a new approach, contending that gerrymandering practices were a form of First Amendment retaliation. The justices agreed, and while the case is ongoing, the Supreme Court win has laid a foundation for future arguments.

“We try to focus on the long game,” said Michael Lackey, head of Mayer Brown’s global litigation and dispute resolution practice. The firm keeps appellate arguments in mind at each level of litigation, sometimes resulting in industry-shaping precedent.
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Department Size and Revenue

Partners: 179
Associates: 238
Other: 30

Department as Percentage of Firm: 28%

Percentage of Firm Revenue, 2017: 30%
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In another appellate showdown, Mayer Brown took the reins for Impression Products in the Supreme Court, after Avyno Law lost Impression’s Federal Circuit appeal over the sale of used ink cartridges. Lexmark International Inc. had sued Impression for patent infringement after learning that Impression buys used Lexmark cartridges, refurbishes them and resells them at a discount.

A Supreme Court loss could have created an intellectual property headache not just for Impression, but for various other sellers of used goods. Mayer Brown persuaded the justices that Lexmark had exhausted its patent by selling the cartridges, allowing Impression to continue its sales in the United States and abroad.

When Nestlé Purina PetCare Co. faced severe reputational damage—allegations that its Beneful dog food was toxic—the company chose not to back down from a hard fight. Mayer Brown was ready. The accusations had spread across social media, and attracted the attention of traditional media. In their motions for summary judgment, Mayer Brown took almost 50 depositions to show that plaintiffs had no evidence connecting Beneful to any dog injuries or deaths.

“It’s hard to prove a negative, especially when people get so emotional about their pets,” says Purina PetCare chief legal officer Susan Denigan. “It’s not just the legal side of the case, but it’s also the corporate reputation that goes along with it.”

But Mayer Brown will forgo a courtroom fight for a settlement if the client’s interests call for it. When client Virgin America aimed to merge with Alaska Air Group, Mayer Brown not only steered the airlines through regulatory hoops, but saw them through a California plaintiff’s lawyer’s eleventh-hour antitrust suit, reaching an agreement with the plaintiffs in time for the merger to close.

With the upcoming matters on the firm’s docket, it’s clear that Mayer Brown will keep taking on the high stakes. The firm is defending water engineering company Veolia against claims stemming from Flint, Michigan’s lead contamination problem. And in Hall v. DirecTV, a Fair Labor Standards Act suit involving overtime pay, the firm is seeking to argue before the Supreme Court that the Fourth Circuit created improper requirements for commonplace contracting arrangements.

Reprinted with permission from the December 19, 2017 edition of American Lawyer © 2017 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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