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
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
! "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
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.
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.
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.
* * * * *
ROBERT L. STERN
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
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
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.