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1999 Term, Number†10 / February 28, 2000

Although the Supreme Court has not granted certiorari in a business case for several weeks, we are distributing this special issue to report on other significant developments during that time. First, we are pleased to announce the launch of the website of the Mayer, Brown & Platt Supreme Court and appellate practice group, www.appellate.net. Second, we report on the Courtís decision in Rotella v. Wood, concerning the statute of limitations for private claims under the Racketeer Influenced and Corrupt Organizations Act (RICO). We conclude this report with a tribute to our retired partner, Robert L. Stern, who recently passed away.

In addition, we note that, on February 22, 2000, the Court invited the Solicitor General to express the views of the United States in one case of interest to the business community, Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hospital, No. 99-905. The central issue in the case is whether the Noerr-Pennington†doctrine may preclude antitrust liability for a defendant accused of making deliberate misrepresentations in an administrative adjudication. The decision below is reported at 185 F.3d 154 (3d Cir. 1999).

Any questions about these matters should be directed to Donald Falk (202-263-3245) or Eileen Penner (202-263-3242) in our Washington office.

Mayer, Brown & Platt Launches Appellate.Net Website

The Supreme Court and Appellate Practice Group at Mayer, Brown & Platt has launched a new website ó "Appellate.net" ó that we hope will be useful to clients, appellate lawyers, law students, and the public. Designed to showcase the firmís distinguished history and unique capabilities in litigating complex and important appellate matters, the appellate groupís website is located at www.appellate.net. We invite you to visit the site, which includes the following features:

! An area entitled "About the Group," which contains materials about the appellate groupís history and current personnel, including (1) a historical piece describing the firmís involvement in Supreme Court litigation, which dates back to the 1890s; (2) a list of all (currently 296) cases MBP lawyers have argued in the Supreme Court; (3) an "Appellate Practice Highlights" piece describing recent interesting cases our lawyers have handled; and (4) a full "Appellate Group Resume" describing our practice and philosophy and providing the individual biography of each partner, counsel and associate who works in the group.

! "Articles and Docket Reports" includes several dozen articles written by MBP partners and associates on Supreme Court and appellate practice and other general topics, interviews with several MBP appellate partners, and past issues of the MBP Supreme Court Docket Report. The latest Docket Report will be posted in this area.

! "Briefs" is a repository of approximately 160 appellate briefs that members of our group have filed in the U.S. Supreme Court and federal and state appellate courts. The permanent brief bank is accessible through a variety of indices, including a listing of briefs by author, subject matter, and case name. Subsections within the brief bank collect briefs in newsworthy cases and amicus briefs filed by business groups and other organizations that are clients of the firm.

! "Supreme Court Oral Arguments" includes links to 28 actual Supreme Court oral arguments presented by current MBP lawyers, which can be heard in digitalized audio format.

! "Resources" includes hundreds of links to useful appellate resources on the Internet, including information about the U.S. Supreme Court (such as its calendar, current docket, recent decisions, and biographical information on the Justices), links to all the federal courts of appeals and all state supreme court sites, links to appellate briefs and oral arguments on the Internet, links to media coverage relating to the Supreme Court, links to groups that regularly file amicus briefs, and many other appellate law links.

! "Treatises" includes excerpts from the Supreme Court Practice treatise co-authored by Robert L. Stern, Eugene Gressman, Stephen M. Shapiro & Kenneth S. Geller, as well as excerpts from two chapters written by MBP lawyers in the ABAís Business and Commercial Litigation in Federal Courts.

The site also collects information about individual lawyers in the appellate group. This information is accessible by adding a forward-slash ( / ) and then the lawyerís last name to the home page address. (e.g. www.appellate.net/attorneyname)

Supreme Court Further Limits RICO Statute of Limitations

Last week, the Supreme Court decided Rotella v. Wood, No. 98-896 (Feb. 23, 2000), a case involving the statute of limitations for civil RICO causes of action. The case is significant both for its holding and for the issue it leaves open.

Until recently, the federal courts had used three different rules for determining when a RICO action accrues and the statute of limitations begins to run: (1) the "last predicate act" rule, under which the statute of limitations begins to run only upon the commission of the last predicate act that was a part of the RICO "pattern"; (2) the "injury-and-pattern-discovery" rule, under which the statute begins to run only when the plaintiff knew, or should have known, about both his injury and the existence of a RICO pattern; and (3) the "injury-discovery" rule, under which the statute begins to run only when the plaintiff knew, or should have known, of his injury.

The Court has granted certiorari three times to address the accrual issue. In each case, the American Council of Life Insurers ("ACLI") (formerly the American Council of Life Insurance), twice joined by the American Honda Motor Company, has filed an amicus brief prepared by Mayer, Brown & Platt, urging the Court to adopt a fourth rule that has not yet been adopted by any court. Under this "Clayton Act" or "injury occurrence" rule, the statute of limitations begins to run upon the actual occurrence of an injury to the plaintiff, regardless of when the plaintiff discovers that injury. The Court dismissed the first case as improvidently granted. Grimmett v. Brown, 519 U.S. 233 (1997).

The Court addressed the accrual issue soon thereafter in Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997). Because the petitioners could win only under the "last predicate act" rule, however, the Court simply considered and rejected that rule. The Court did note that "Congress consciously patterned civil RICO after the Clayton Act" and that, "by the time civil RICO was enacted, the Clayton Actís accrual rule was well established." Id. at 189. Justice Scalia, joined by Justice Thomas, filed a separate concurring opinion endorsing the Clayton Act rule. Id. at 198.

In Rotella, the Court rejected the "injury-and-pattern-discovery" rule. Noting in footnote 2 of its opinion that amicus ACLI had argued for the Clayton Act rule, but that the parties had largely ignored it, the Court announced that it would leave for another day the choice between that rule and the injury-discovery rule.

Rotella is a solid victory for the business community. Only three years ago, the injury discovery rule was vying with two far more plaintiff-friendly rules for predominance in the federal courts. It is now the only one of the original three rules left standing, and a strong possibility remains that the Supreme Court will adopt the even more favorable "Clayton Act" rule. After Rotella, the business community should be aware of the existence of the Clayton Act rule and be prepared to press for its adoption in the lower courts.

* * * * *


We note with sadness the passing last month of our retired partner, Robert L. Stern, at the age of 91. Bob Stern argued approximately 60 cases before the Supreme Court during his long career in government service and in private practice in Chicago at Mayer, Brown & Platt, where he helped to build one of the nationís first, modern appellate practices. He served for 13 years in the Office of the Solicitor General, including several stints as Acting Solicitor General and service as the First Assistant from 1950-1954. In that position, he supervised the federal governmentís Supreme Court litigation and briefed and argued some of the most important cases of his generation.

Those cases included landmark antitrust cases, such as Parker v. Brown, cases construing the Commerce Clause, such as Southern Pacific Co. v. Arizona, and major criminal law cases such as the Rosenberg espionage case. As a brief writer, Bob Stern participated in many of the major cases of the New Deal Era which defined the power of the federal government to regulate interstate commerce.

One of Bob Sternís first arguments was a criminal case from Louisiana, in which the defendant was represented by Thurgood Marshall. This case was the beginning of a long friendship with the future Supreme Court Justice. Later, but long before he became Solicitor General or a judge, Marshall sought to have the Department of Justice file amicus briefs on behalf of his clients, usually in cases involving racial discrimination. In 1954, Bob was instrumental in persuading the Attorney General to file a brief for the federal government in opposition to school segregation in the case of Brown v. Board of Education.

Bobís Reminiscences of the Solicitor Generalís Office were published in the Journal of Supreme Court History in 1995, but by that time his more serious publications had long since established him as a legal scholar as well as an appellate litigator. As an outgrowth of his work in the Solicitor Generalís Office, Bob published numerous articles on constitutional and administrative law, many of which were carried in the Harvard Law Review. In 1950, he wrote the first edition of a treatise entitled Supreme Court Practice, with Professor Eugene Gressman; the treatise is now in its seventh edition, with additional co-authors Stephen Shapiro and Kenneth Geller. This volume is regarded as the standard reference work on litigation before the Supreme Court. Indeed, upon meeting Bob for the first time, one Justice observed that he kept one copy of Supreme Court Practice in chambers and another at home.

Bobís second treatise on appellate practice, Appellate Practice In The United States, has also assisted countless practitioners and judges engaged in appellate litigation. In 1983, he received the American Bar Foundationís annual award for excellence in legal research. He served as advisor or member of national study groups that evaluated the Supreme Courtís workload during the 1960s and 1970s. He also served on the American Bar Associationís amicus brief committee, in which capacity he once shared with future Supreme Court Justice Ruth Bader Ginsburg the unenviable task of rewriting an ABA amicus brief for the Supreme Court on a rush schedule.

In his numerous writings on appellate advocacy, Bob Stern recommended the use of straightforward, conversational writing and speaking that would ease the work of overburdened appellate judges. His conversational approach during oral argument was appreciated by the Justices who sometimes engaged in humorous dialogues with him. One morning he explained that he hoped the Justices would forgive him for any unaccustomed signs of fatigue, because he had stayed up all night awaiting the birth of his third child. Chief Justice Stone responded: "Mr. Stern, it is your job to keep the Court awake, not the other way around." He gave his usual unflagging presentation.

In private practice, Bob Stern attended not only to briefing and argument, but also to the training of young lawyers whom he entertained with colorful anecdotes about the careers of Justices Felix Frankfurter, Robert Jackson, and Thurgood Marshall, and his many other friends in Washington, including the "afternoon teas" which he attended at the home of Justice Brandeis. While at the Justice Department, Mr. Stern persuaded his colleagues to adopt an "Honors Program" that authorized the hiring of high-ranking law students before graduation from law school, a program still in effect today.

Bob Stern was born in New York City in 1908. In high school he was the smallest boy in his class, but had the highest grades. He was named Valedictorian of Williams College. He graduated magna cum laude from Harvard Law School in 1932. In his depression-era law school class of 738 students, Bob was one of 12 magna cum laude graduates. The class produced two Supreme Court Justices, Harry Blackmun and Lewis Powell, with Justice William Brennan graduating a year later.

Despite his academic achievements, Bob did not qualify for the major New York law firms, most of which then discriminated against Jewish students. He was offered and gladly accepted a position in a small office at a salary of $25 per week. He moved to the Justice Department in 1933 and eventually rose to what he described as "the best non-political career position in the government." After twenty years of public service, Bob joined Mayer, Brown & Platt. He remained with the Firm for more than 40 years, retiring in 1995.

Robert Stern is survived by his wife, Helen, three sons, Lawrence, Kenneth, and Allan, four grandchildren, and two great-grandchildren. He will be sorely missed by his family, his partners, and the appellate bar.

This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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