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THE VISOR SHOT. Buzz Aldrin is an American legend — Astronaut. Scientist. Explorer. In 1969, Dr. Aldrin, along with his colleagues Neil Armstrong and Michael Collins, bravely piloted into the unknown for the Apollo 11 lunar expe-dition. During that historic mission, Dr. Aldrin became one of only a dozen members of humanity to walk on the surface of the moon. His training and survival skills as an Air Force pilot who flew 66 combat missions in Korea and as an astronaut had allowed him to survive treacherous journeys through some of the most hostile environments on and beyond our planet.

The Astronauts’Lawyer

But there was one environment that Dr. Aldrin knew he could not explore without the guidance and counsel of an experienced wingman. That was the American legal system. And as soon as the famed astronaut knew he needed the services of an attorney of unique skill and talent, he turned to Robert C. O’Brien, the partner-in-charge of Arent Fox’s Los Angeles office.

One of the most iconic photographs in American (and world) history is the “visor shot” of Dr. Aldrin on the moon snapped by his fellow astronaut Neil Armstrong. The “visor shot” shows Dr. Aldrin stand-ing on the lunar surface, with, as he writes in his autobiography Magnificent Desolation, “the curve of the horizon easing into the blackness of space.”

The photo has become one of the most famous in history, capturing the triumph of the American spirit and mankind’s greatest scientific achievement.

“THIS IS A TerrIBLe WAY TO TreAT An AMerICAn HerO.” Years after the Apollo 11 mission, Dr. Aldrin discovered the Bermuda-based liquor company Bacardi-Martini Rum was using the “visor shot” in its advertising campaign. The print ad showed a bottle of rum pouring its contents onto an image of Dr. Aldrin standing on the lunar surface. Moreover, the lower half of the photograph had been altered to portray Dr. Aldrin wearing swim trunks and fins. As he wrote in his memoir, “It made a mockery of this iconic image.”

Dr. Aldrin turned to Robert O’Brien to help protect his right of publicity and, more importantly, the dignity of a great moment in American history.

Robert immediately went to work defending Dr. Aldrin in both a court of law and the court of public opinion. In addition to filing a lawsuit against Bacardi for misappropriation of Dr. Aldrin’s image and identity, Robert, along with Dr. Aldrin, made numerous media appearances to denounce the advertisement’s demeaning portrayal of the legendary astronaut. Appear-ing together on a nationally syndicated news program, Dr. Aldrin said, “I don’t want to become Bacardi’s version of a Joe Camel,” referring to the controversial cigarette company mascot.

Robert told viewers, “Whatever the legal merits of the case are, this is a terrible way to treat an American hero.”

Robert’s efforts on behalf of Dr. Aldrin were successful. The case was settled and Bacardi made a public apology: “By using a portion of the visor shot in the advertisements, Bacardi did not intend to cause the public to recognize Aldrin in the advertisements nor believe that Aldrin endorses, or has ever endorsed Bacardi prod-ucts. …Bacardi has a great amount of respect for Aldrin, is sympathetic to his concerns, and, therefore, has apologized to him for publishing the advertisements.”

UnITeD THeY STOOD. Robert’s success for Dr. Aldrin in the Bacardi case encouraged more of America’s astronaut heroes to seek his assistance in protecting their images and legal rights. After resolving the Bacardi matter, Robert represented Dr. Aldrin, as well as the widows of astronauts Pete Conrad (who commanded the Apollo 12 mission) and Jim Irwin (the Apollo

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15 lunar module pilot) in a case against the toy company Action Products. The company was using photographs of the three astronauts on the packaging of their toy spacecraft models.

In his autobiography, Dr. Aldrin writes what happened next:

“Rob O’Brien represented all of us, and we proceeded on a united front. At one point, intimations were made in the settlement dis-cussions that Action Products was willing to settle only with me and not with the oth-ers. But we stuck together, and after a ruling in our favor by the federal judge in our case, our efforts had a successful outcome.”

With Robert’s guidance and counsel, the case was settled on such amicable terms that Dr. Aldrin and Action Products later did business together by which the famed astronaut licensed his image for use with the toy company’s Saturn V model rocket.

“I have had many proud moments as an attor-ney,” said Robert. “But I was never more proud than when I represented Buzz and the widows of his fellow astronauts in working to preserve the memory of some of the greatest, most treasured accomplishments in American history, as well as the dignity of three national heroes.”

Dr. Aldrin turned to robert O’Brien to help protect the dignity of a great moment in American history.

The Astronauts’Lawyer

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Opening Doors

THE COMMITTEE TO RESTORE DEAlER RIgHTS. It had been widely anticipated for months. But that expectation did not diminish the shock-waves that reverberated through the economic and political landscape in the spring of 2009 when news came that automakers general Motors and Chrysler — two long-time titans of the business world and symbols of American economic power — had filed for bankruptcy. Chrysler llC was the first to file on April 30, 2009. less than two months later, general Motors — the largest automaker in the United States and the world’s second largest — filed a 24-page bankruptcy petition on June 1, 2009. It was the second largest industrial bankruptcy in history.

The Committee to restore Dealer rights

Pundits, commentators and auto industry analysts in the media debated the economic and political impact of the bankruptcies.

Also watching — and waiting — to see what the bankruptcies of Chrysler and GM would mean to them were thousands of Americans who earned their living selling GM and Chrysler vehicles to consumers at auto dealerships all across the country, and workers in the auto parts industry who supplied the dealerships.

Even prior to filing for bankruptcy, General Motors had announced plans to shut down 2,600 of its 6,200 dealerships in the United States. Chrysler had already begun to eliminate nearly 800 dealer-ships. GM and Chrysler claimed that closing the dealerships was necessary for their survival.

Thousands of jobs were being threatened as communities all across the country faced the loss of a large part of their economic base. Dealership owners, salespeople, factory work-ers, and support staff all faced the loss of their livelihoods as GM and Chrysler threatened to terminate dealer franchise agreements.

Not content to sit back and passively watch the destruction of their way of life without a fight, a group of automobile dealers banded together to battle for their businesses and protect their employees.

Thus, in June 2009, the Committee to Restore Dealer Rights was created. “No other group repre-sents the interests of rejected/terminated dealers,” the group’s newly launched website proclaimed.

One dealer who took a leading role in this effort was Jack Fitzgerald, owner of nine Washington, DC, area dealerships — eight of which were set to be shut down by General Motors and Chrysler.

“We formed the Committee in the wake of the Chrysler and GM bankruptcies to protect the rights of thousands of auto dealerships and the 169,000

employees who may lose their jobs, and the cus-tomers and communities they serve,” Fitzgerald told a Congressional committee in July 2009.

Fitzgerald, however, knew he needed to do more than simply criticize the GM and Chrysler plan to shut the dealerships. He needed to offer Members of Congress a solution that would save thousands of American jobs and preserve the economic integrity of hundreds communities.

As he prepared to attend a hearing of the US Senate Commerce Committee, according to The Washington Post, Jack Fitzgerald believed he had that solution in a gray envelope bearing the name “Arent Fox.”

Inside that envelope was an ambitious piece of proposed legislation titled the Automobile Dealer Economic Rights Restoration Act of 2009. The bill, if enacted, would restore the economic rights of dealers whose businesses had been targeted for elimination by requiring that the automakers honor and reinstate the franchise agreements.

The proposed legislation was the first component of an intricate legal, legislative, and communica-tions strategy that would be waged by Arent Fox to roll back the dealer terminations.

THe CAMPAIGn. Teams of Arent Fox attorneys and professionals led by Mary Jo Dowd, a partner in the firm’s bankruptcy practice, and Dan Renberg, co-leader of the Arent Fox government relations department, worked tirelessly with the Committee to Restore Dealer Rights, drafting legislation, advocating on Capitol Hill before Congressional leadership, key committee chairmen and dealer supporters, preparing Congressional testimony, negotiating with GM and Chrysler officials, and researching constitutional issues associated with the legislation.

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The Committee to restore Dealer rights

Hundreds of General Motors dealerships in the United States were saved.

The multi-pronged Arent Fox strategy began paying dividends almost immediately. The Automobile Dealer Economic Rights Restoration Act of 2009 garnered 284 co-sponsors in the US House of Representatives and 48 co-sponsors in the US Senate. Arent Fox directed and implemented a government relations effort that involved flying in hundreds of dealers to meet with Congressional leaders and holding a press conference at the Capitol with House Majority Leader Steny Hoyer and numerous other key Members of Congress who supported the dealers in the wake of their rejection by the automakers.

The media soon took note of Arent Fox’s work on behalf of the other beleaguered car dealers.

On June 4, 2009, The Washington Post ran a lengthy article detailing Jack Fitzgerald’s whirl-wind of media interviews, strategy meetings and Congressional testimony. Mary Jo Dowd was interviewed at the Fox News studios in Washington, DC, to discuss GM and Chrysler’s plans and the federal legislation that Arent Fox had crafted to save the dealerships. The Washington Times, Bloomberg and The Hill also reported on the proposed legislation.

Renberg and Dowd served as the primary negotiators for the Committee to Restore Dealer Rights during three months of behind-the-scenes negotiations with senior executives from Chrysler and General Motors, facilitated by senior Members of Congress.

In December 2009, after months of negotiations and public hearings, Congress approved the legislation to assist more than 3,000 auto dealers terminated earlier in the year by General Motors and Chrysler. President Obama signed the provi-sions into law as part of a catch-all federal funding bill on December 17, delivering an early and

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The media soon took note of Arent Fox’s massive efforts on behalf of the be-leaguered car dealers.

much-needed Christmas present to thousands of American workers who faced the loss of their jobs and businesses.

The legislation established a unique binding arbitration process that would take place in the first half of 2010, giving dealers the opportunity to regain their franchises. Thanks to the legislation designed by Arent Fox, the dealers would have the unprecedented opportunity to make the case to neutral arbitrators that their dealerships should remain open.

THe “TrIUMPH.” Passage of the landmark legislation was the result of sustained extraordi-nary efforts by Arent Fox. Arent Fox’s campaign on behalf of the Committee to Restore Dealer Rights was later selected as one of the “Top 10 Lobbying Triumphs” of 2009 by The Hill, the highly respected Washington, DC, newspaper dedicated to covering the US Congress.

On March 5, 2010 — three months after the bill was passed — General Motors announced that it would reinstate 600 of the dealerships it had planned to close.

“I’m very pleased because the dealers have had their property taken from them improperly and now they’re getting it back,” said Jack Fitzgerald. “GM is doing the right thing.”

Upon hearing the news of GM’s plans to reinstate the dealerships, Mary Jo Dowd said, “It was a true honor working on this matter. We were not only working on behalf of a wonderful client who fer-vently and passionately believed that he needed to tell the world that something very unfair was taking place. We were also working on behalf of thou-sands and thousands of hard-working Americans who faced an enormous amount of hardship had the original dealership closure plans been enacted.

The fact that we played a role in protecting the jobs and livelihoods of so many people is a source of tremendous pride to all of us at Arent Fox.”

Dan Renberg agreed. “Having been in public service, I know how gratifying it can be to help one’s fellow citizens retain their jobs or improve their quality of life. General Motors and Chrysler had all the funding and lengthy histories of substan-tial Congressional support. In this David vs. Goliath tale, David came out the winner and it fell to us to help develop the right slingshot. The collegial nature of our firm made it possible to go from zero to 60, to use an automotive phrase, and to provide legal and policy advice in a seamless manner across numerous areas of law, which sets us apart from many other firms or lobbying boutiques.”

The Committee to restore Dealer rights

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TAlKINg CARS, SUpERHEROES, MONSTERS, A lONEly ROBOT AND A gOURMET RODENT–ARENT FOx HAS SOME INTERESTINg ClIENTS. The Eiffel Tower is one of the most recognized structures in the modern world. located on the Champs de Mars in paris, the tower has become the international symbol of France. It has been sketched, painted, photographed, and filmed countless times since it first opened in 1889. The Eiffel Tower has been featured in dozens of motion pictures, either in the background or as a scene location. James Bond and Super-man have been portrayed on the big screen as visiting the iconic tower. Nearly 7 million tour-ists travel there each year, taking snapshots to show their family and friends back home. So, who knew using a picture of the Eiffel Tower in a movie could be against French law?

SomeInteresting Clients

Arent Fox’s Anthony Lupo knew. And it was his job to inform his client — one of the most success-ful motion picture studios in the world — before it released a movie featuring a scene showcasing an illuminated Eiffel Tower on a beautiful Paris night.

Pixar Animation Studios is an Academy Award®- winning computer animation studio that has pro-duced some of the highest-grossing and critically acclaimed films in motion picture history, including Toy Story and its sequels, Finding Nemo, A Bug’s Life, Cars, Monsters, Inc. and The Incredibles. The films have grossed nearly $7 billion combined and won numerous Oscars.

In 2007, Pixar (which had been purchased in 2006 by the Walt Disney Company) was preparing to release its next blockbuster animated feature, Ratatouille, about a determined young rat living in Paris named Remy who dreams of becoming an esteemed French chef. One scene in the film featured Remy staring into the Paris night with the Eiffel Tower lit up in the distance.

The scene, as sketched out in the script and pre-production storyboards, would undoubtedly appear stunning on the big screen as portrayed by Pixar’s world-renowned animators.

There was only one problem.

French law protected images of the light patterns on the Eiffel Tower at night. Thus, while there are no restrictions on publishing a picture of the Tower

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Who knew using a picture of the eiffel Tower could be against the law?

by day, photos taken at night when the lights are aglow could be subject to protection. Fees for the right to publish must be paid to the SNTE (Société nouvelle d’exploitation de la tour Eiffel).

Anthony worked closely with Pixar to make certain that the scene as portrayed on the screen com-plied with all applicable intellectual property laws.

Ratatouille was released in the summer of 2007 to both critical acclaim and financial success, earning more than $200 million at the box office. In 2008, it won the Academy Award for Best Animated Feature.

AnIMATeD LAWYerS. Pixar later went on to release three more modern day masterpieces – Wall-E, about a lonely robot who falls in love in outer space, Up, about an elderly widower who seeks adventure by flying to South America in a house suspended by hundreds of helium balloons, and Toy Story 3, the further adventures of Woody and Buzz Lightyear. Each of the films broke box-office records, with Wall-E and Up winning Best Animated Feature Oscars in 2008 and 2009, respectively. (Seven Pixar films released since the creation in 2001 of the Academy Award for Best Animated Feature category have been nominated for the award).

The release of Disney-Pixar animated films has become an annual event, eagerly anticipated by moviegoers around the world.

Few of the millions of moviegoers who attend the films, however, realize that before the movie can be released, each frame needs to meet the exacting approval of a team of lawyers in Wash-ington, DC — Arent Fox’s intellectual property group led by partner Anthony Lupo, and includ-ing attorneys Jennifer Donohue, Emily Mechem, and Grace Applefeld.

Sitting in a darkened screening room or huddled over a desk with a magnifying glass, Anthony and attorneys from the intellectual property practice scrutinize each frame of every Pixar production before the film is finally released.

Indeed, Anthony and Arent Fox have been respon-sible for giving the legal “go-ahead” to each of the classic, award-winning Disney-Pixar films released over the last dozen years. Anthony and his team monitor every phase of film production, making certain that the studio’s films are free and clear of potential legal hazards, including any inadvertent copyright and trademark infringements.

Over the years, Arent Fox has served as Pixar’s legal counsel during the production of movies that have grossed nearly $7 billion worldwide.

For Disney-Pixar, the road to box-office gold begins at the little-known cross-section of Hollywood and Washington, DC, at the law offices of Arent Fox.

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Protecting Protectors

THE ATTACKS. It was one of the darkest days in American history. On the morning of September 11, 2001, 19 terrorists from Al Qaeda hijacked four American civilian airliners and turned them into weapons of mass destruction that would take nearly 3,000 lives that day. At 8:46 am, terrorists deliberately crashed American Airlines Flight 11 into the north tower of the World Trade Center in downtown Manhattan. less than 20 minutes later, a second hijacked airplane, United Airlines Flight 175, was flown into the World Trade Center’s south tower. At 9:37 am, a third airplane crashed into the pentagon outside Washington, DC. Half an hour later, the fourth plane, United Flight 93, crashed in a field in Shanksville, pennsylvania, as the passengers attempted to take back the aircraft, successfully preventing the terrorists from destroying the US Capitol.

The City of new York

In New York, the flames of enormous heat and intensity, fueled by tons of aircraft fuel, raged through the World Trade Center complex.

At 9:59 am, the south tower, structurally weakened from the crash and the subsequent fires, collapsed. Approximately half an hour later, the north tower also collapsed.

More than 2,500 people, including the passen-gers on the hijacked planes, people who worked at the Twin Towers, police officers, firemen, and emergency workers, perished in lower Manhattan that morning.

The collapse of the Twin Towers unleashed tons of steel and concrete, which rained down on the sur-rounding buildings, causing enormous damage.

The fires that caused the collapse of the Twin Towers spread to 7 World Trade Center (7WTC), an adjacent 47-story office building.

The fires in 7WTC continued all day. Approximately seven hours after the Twin Towers fell, 7WTC itself collapsed at 5:21pm.

Miraculously, there were no fatalities at 7WTC, as the building had been fully evacuated shortly after the planes had hit the Twin Towers.

THe LAWSUIT. The destruction of 7WTC destroyed a power substation operated beneath the building by the Consolidated Edison Company of New York, Inc. (Con Ed). This included nine transformers and related equipment housed in the substation.

On September 10, 2002, Con Ed filed a lawsuit in the Southern District of New York against the Port Authority of New York and New Jersey and the City of New York, alleging that the City’s negligence

contributed to the collapse of 7WTC and the destruction of Con Ed’s substation.

Specifically, Con Ed alleged that the City of New York — which leased premises at 7WTC for its Office of Emergency Management — had incorrectly designed, built and maintained an emergency gen-erator system, including backup diesel fuel tanks in the building, and the fuel in those tanks contributed to the fires and collapse of the tower, destroying the Con Ed substation beneath.

DeFenDInG neW YOrk. To defend against Con Ed’s claims, the City of New York turned to two of the leading construction law litigators in the nation, Gene Scheiman and Jamie Frankel.

Gene and Jamie, together with Mark Bloom, all now partners in Arent Fox’s construction law, real estate and litigation practice groups, immediately tackled Con Ed’s allegations to prove to the court that the suit against the City should be dismissed because the City established the Office of Emer-gency Management at 7WTC in the 1990s as a civil defense measure in anticipation of an enemy attack. The Arent Fox attorneys argued that New York State Defense Emergency Act, passed in 1951, provided statutory immunity to the gov-ernment from any lawsuits arising out of certain actions taken by the state or local governments related to civil defense.

Arent Fox attorneys argued that the creation of New York City’s Office of Emergency Management (OEM) at 7WTC was a protected “civil defense” measure under the State Emergency Defense Act designed to “minimize the effects upon the civilian populations caused by an attack.” Indeed, the statute defined “civil defense” as including the construction of “command centers” created in anticipation of an attack.

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THe MAYOr ACTeD “reASOnABLY AnD WITH reSPOnSIBLe FOreSIGHT.” The US District Court for the Southern District of New York agreed with Arent Fox and dismissed the suit against the City.

“The creation of the OEM command center and its backup generator system qualifies as a civil defense measure,” wrote US District Judge Alvin Hellerstein. “It is clear that the City created its OEM command center in anticipation of an ‘attack.’”

Although Mayor Giuliani may not have been aware of “any particular imminent threat” when he ordered the creation of the command center at 7WTC, the judge wrote, “he nevertheless concluded, reason-ably and with responsible foresight, that a terrorist attack of some sort in New York was foreseeable.”

In conclusion, the judge held that the construction of the command center, the backup generator sys-tem, and the installation of the diesel fuel tanks at 7WTC were “good faith efforts” taken by the City of New York to provide for the civil defense of New York. “The Complaint against the City is dismissed,” the judge ruled, granting the City of New York a complete victory.

Arent Fox’s Gene Scheiman reflected on the court’s decision: “The holding affirms the rights of state and local governments, in good faith, to plan and provide for the protection of their citizens in times of danger from foreign and domestic attack, as well as other emergencies, without fear of being second guessed. It was, and is, a privilege to work with the City’s attorneys to achieve this result.”

The City of new York

The fires that collapsed the Twin Towers spread to an adjacent 47-story office building.

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Improving Information

A DANgEROUS pROSECUTION. The Washington Post called it a “dangerous prosecution” that “could radically diminish the openness of the US government while criminalizing huge swaths of academic debate and journalism.” The Wall Street Journal wrote that the prosecution had “suspicious political beginnings” and warned the case threatened a kind of “prior restraint” on the press, which is “alien to the American legal tradition of First Amendment rights.” The two venerable newspapers, along with numerous other journalistic organizations, were referring to the US Justice Department’s unprecedented prosecution under the 1917 Espionage Act of two former officials of the American Israel public Affairs Committee (AIpAC), a nonprofit organiza-tion dedicated to improving relations between the United States and Israel.

TheespionageAct

The two AIPAC staffers had been indicted in 2005 under a World War-I era espionage statute for allegedly repeating information that they had learned from a Department Defense analyst about US policy towards Iran. The prosecution did not allege any covert acts of spying or that the defen-dants had stolen classified documents. Rather, the indictment alleged the defendants had merely repeated to a journalist and an Israeli embassy official some information they had heard during informal conversations with a US Defense Depart-ment employee.

The indictment detailed a series of phone calls and meetings between the defendants and the Defense Department employee. Some of the meetings were over breakfast and lunch. One was at a baseball game, and another was at a commuter train station. Regardless, the Justice Department was making the extraordinary claim that by orally repeating information they had learned during these conver-sations, the defendants had committed espionage.

“They thus stand accused of doing exactly what hundreds of journalists do in Washington to make a living,” wrote The Wall Street Journal in an editorial denouncing the indictments, warning the prosecu-tion of both men “are dangerous to more than the media. The [Espionage Act] is notably vague, meaning it is ripe for selective prosecution and misuse against political and partisan enemies.”

If convicted of violating the Espionage Act, the defendants faced severe penalties, including substantial prison terms.

Arent Fox, which represented one of the indicted AIPAC officials, fully understood what was at stake for their client. Moreover, they recognized their conviction could — as The Washington Post would later write — “herald a dangerous aggran-

dizement of the government’s power not merely to prosecute leaks but to force ordinary Americans to keep its secrets.”

Accordingly, Arent Fox, along with their co-counsel, devised a bold and innovative legal strategy that challenged the government’s case every step of the way over a period of four years.

A rAre rULInG. One of the primary themes of the Arent Fox defense strategy was to prove that the Bush administration, like prior administra-tions, routinely discussed sensitive information with AIPAC as part of a sanctioned, back-channel relationship between the United States and Israel.

To prove their case, the legal defense team undertook the extraordinary step of asking the court for permission to subpoena some of the highest-ranking officials of the United States government and senior members of the American foreign policy establishment.

Prosecutors strongly opposed the motion and many observers thought the move was a legal “Hail Mary” that had little chance of succeeding.

But Arent Fox, along with co-counsel from another firm, made a compelling argument to the court that the testimony of these senior foreign policy officials was essential to the defense of their clients.

Accordingly, in a decision that stunned the legal and foreign policy world, the judge presiding over the case granted the defense motion to subpoena then-Secretary of State Condoleezza Rice, then-National Security Adviser Stephen J. Hadley, former Deputy Secretary of Defense Paul Wolfowitz; and former Deputy Secretary of State Richard Armitage.

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TheespionageAct

The prosecu-tion did not allege that the defendants had stolen classified documents.

The Washington Post called it “a rare ruling,” with legal experts saying “it would be highly unusual for such a parade of senior officials to testify at a criminal trial. Judges usually decline to grant such subpoenas on the grounds that high-level officials are too busy or that the information can be obtained from other sources.”

In February, 2009, the defense scored another key tactical pre-trial win when a federal appeals court denied the government’s effort to limit the defendants’ use of classified information as evidence at trial. Following the court’s decision, Arent Fox attorneys told The New York Times they hoped the government would “reconsider its prosecution of the case.”

Leading news organizations agreed and continued to call on the government to drop its prosecution of the two AIPAC officials. The Washington Post wrote, “Attorney General Eric H. Holder Jr. should put an end to a criminal case that should never have been brought.” The Post wrote the prosecu-tion “risks profound damage to the First Amend-ment” and “in effect criminalizes the exchange of information.” The Wall Street Journal wrote the case was a “misfire” by the Justice Department and “Attorney General Eric Holder can do the country a favor by dropping it.”

And that is precisely what happened.

CASe DISMISSeD. On May 1, 2009, the US Justice Department announced it was moving to

It was wrong to apply the espionage Act to people who clearly were not spies.

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drop all charges against the defendants in the four-year old, high-profile case, earning Arent Fox a historic victory.

In moving to dismiss all charges against the defendants, the prosecutors specifically noted that the defense’s pre-trial victories before the district and appellate courts had “diminished the likelihood the government will prevail,” saying the “landscape has changed significantly since the case was first brought.”

Four days later, Judge T.S. Ellis III of the US District Court for the Eastern District of Virginia granted the government’s motion and formally dismissed all charges against the defendants.

The conclusion of the case and Arent Fox’s victory generated headlines and editorials across the country and around the globe, from The Washing-ton Post to The New York Times to the BBC to the Jerusalem Post to Al Jazeera. The Los Angeles Times wrote, “The decision by the Justice Depart-ment to drop its case was a wise one,” saying the prosecution was “misconceived from the start.”

Following the government’s announcement, Arent Fox issued a joint statement with their co-defense counsel, saying, in part:

“It was wrong for the government to single out AIPAC and our clients and allege wrongdoing when all they ever did was their job of helping the United States create better foreign policy; it was

wrong to apply the Espionage Act to people who clearly were not spies; it was wrong to invent a new application of a 1917 law to non-government officials; it was wrong to seek to chill debate about American foreign policy by charging foreign policy advocates and threatening that these charges could be brought against journalists; and, it was especially wrong not to see the many flaws in the case so that these two men and their families had to live under this unfair cloud for so long. We are thankful that the First Amendment values of our country have been recognized.”

What started in 2005 as a “dangerous prosecution” that threatened to “radically diminish” the openness of American society had instead in 2009 become a landmark victory for the First Amendment.

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ForgingBonds

OpINION COUNSEl. In 2003, Arent Fox patent attorney Rich Berman received a phone call from a litigator at another firm. The lawyer said he was calling on behalf of par pharmaceutical, one of the nation’s leading manufacturers and distributors of high-quality generic pharmaceuticals. He asked if Rich would be willing to prepare an “opinion letter” for par in anticipation of a patent infringement lawsuit to be brought by a large brand pharmaceutical company.

ParPharmaceutical

Typically, when a generic pharmaceutical company wishes to market a generic version of a brand-name drug, the company seeks to obtain an opinion letter from an outside counsel to analyze the validity of any patents on the drug and evaluate the risk of possible infringement. Often, such companies seek an opinion letter before they apply for clearance with the US Food and Drug Administration to establish a good-faith basis for their application.

Opinion letters are prepared by an outside patent attorney rather than a company’s in-house counsel in order to obtain the most objective analysis. Generally, generic pharmaceutical companies use opinion letters at trial as evidence to rebut charges of willful infringement and demonstrate they took great care to ensure they did not willfully infringe on the brand-name company’s patent claim.

Opinion letters by outside patent counsel are often highly detailed, complex documents contain-ing meticulous analysis of the law, the patent file history, which includes all written correspondence between the patent applicant and the US Patent and Trademark Office, and the product itself.

In accepting the offer to prepare the opinion letter, Rich informed Par that it would likely take a number of billable hours, stretching over several days, to research, draft and finalize the document. The cost of preparing the document could reach and even exceed $20,000.

Rich shut his office door, rolled up his sleeves and got to work, anticipating a long stretch of review and drafting.

And then Rich made a remarkable discovery.

eFFICIenCY AnD InTeGrITY. After one hour of research, reading the relevant statutes and

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He was living up to the finest traditions and highest standards of the firm’s goals and values.

reviewing the patent at issue, Rich found in this instance Par did not even need an opinion letter. Par was free to operate without risk of patent infringement.

Rich immediately phoned the litigator who had originally contacted him to inform the lawyer about what he had discovered. Rich told him, “I could still go ahead and prepare a full-fledged opinion letter for Par. But, quite frankly, given the law and the patent application, Par does not need one. And to prepare one would require me to bill Par approxi-mately $20,000 or more. That’s money they really don’t need to spend.”

The litigator gratefully accepted Rich’s advice and Par ultimately opted not to solicit an opinion letter.

Rich’s bill to Par for his hour of research was less than $500.

Weeks later, Rich’s phone rang again. It was a representative from Par contacting Rich directly. The Par representative told Rich that the company was greatly pleased with Rich’s work on the earlier project and very much appreciated the honest and forthright way in which Arent Fox did business. Accordingly, he asked Rich if he would represent Par in another matter.

Today, Par Pharmaceutical stands as one of Arent Fox’s largest and most valued clients. Led by Rich Berman, along with his colleague, partner Larri Short, Arent Fox performs much of Par’s intellectual property and patent litigation work, including coun-seling the company on US Food and Drug Admin-istration compliance and regulatory issues and government price reporting matters with respect to operations of the company’s generic and branded pharmaceuticals businesses.

When Rich Berman first informed Par that it did not require an opinion letter and there was no need for the company to spend $20,000, he was living up to the finest traditions and highest standards of Arent Fox as expressed in the firm’s statement of goals and values: “To our clients we pledge the highest level of service, at a fair price, delivered with integrity, imagination, insight and efficiency. To ourselves, we pledge the highest ethical standards.”

In adhering to those timeless principles of integ-rity and professionalism and working in the best interests of the client, Arent Fox forged a special relationship with Par Pharmaceutical – a relation-ship that continues to this day.

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FindingTruth

TO RENDER QUAlITy HEAlTH CARE WITH A SpECIAl FOCUS ON THE pOOR AND THE VUlNERABlE. In the late 19th century, a community of nuns dedicated to the care of the sick and the poor opened a small, 12-bed hospital in a city in the Northeast region of the United States. By 1900, just 30 years after it opened, the hospital was treating more than 1,500 patients with doctors performing 300 operations that year.

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Over the course of the 20th century and beyond, the hospital grew into a major regional health care center. By 2008, the health care system was composed of a large medical center, a children’s hospital, a nursing home, home health services, and nearly 30 ambulatory care and other clinical sites. With more than 1,400 physicians, 5,000 employees, including nurses and other health care providers, the health care system today serves close to 1,000 beds, treating more than 1.6 mil-lion patients.

Additionally, a major expansion of the health care system’s facilities had been announced. More than ever, the health care system was fulfilling its mission to render quality health care with a special concern for the poor and underserved.

But in 2005, the health care system, its hospitals, its expansion and its mission were unexpectedly placed in serious financial and legal jeopardy.

CLAIMS OF FrAUD. That year, a so-called “whistleblower” had filed suit in federal court claim-ing that the hospital had violated the False Claims Act by improperly inflating its Medicare claims. Specifically, the whistleblower had alleged the hospital system had over-billed the government for “outlier payments,” which are special Medicare pay-ments made to hospitals that incur unusually high expenses when treating acutely ill patients who require extraordinary treatment or highly complex procedures, such as heart bypass surgeries that lead to complications.

In his suit, the whistleblower — a hospital consultant who had already sued numerous other hospitals making similar claims — sought $75 million dollars plus penalties from the hospital.

Under the False Claims Act, a private citizen is permitted to sue individuals and entities for fraud on behalf of the government (a “qui tam” case). Once the lawsuit is filed, the federal government may decide to join the whistleblower in the lawsuit. If the defendant is found to have engaged in fraud or if the case settles, the whistleblower is entitled to be paid a percentage of the damages.

Thus, the whistleblower in the case stood to pocket millions of dollars for pressing his allegations against the hospital and health care system.

THe STAkeS. The hospital’s management was stunned by the suit and the allegations. For nearly 150 years, the hospital had dedicated itself to con-ducting its work in the most ethical manner, with fairness and honesty.

The suit threatened not only the health care sys-tem’s good name and its reputation for integrity and excellence, but, more importantly, its financial ability to continue to serve its patients and those who depended on it for their health and well-being.

PreSenTInG ITS FInDInGS. To defend itself against the allegations of fraud, the health system turned to Arent Fox, one of the most respected Medicare and Medicaid False Claims defense firms

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in the nation, a firm with a well-earned reputation for tackling the thorniest allegations of health care fraud around, aggressively but quietly defending its clients while simultaneously working to protect the client’s reputation and preserve its confidentiality.

The lead attorney on the case was Arent Fox partner Linda Baumann, a nationally recognized authority in the field of health law.

With her years of experience, Linda knew immedi-ately what was at stake for the client. Aside from legal liability that potentially ran into the tens of millions of dollars and the loss of its reputation, in a worst case scenario, the health care system poten-tially faced the dire consequence of exclusion from the Medicare program, which would likely mean the hospital would be forced to close its doors.

Linda and the Arent Fox health care legal team knew that despite their client’s strong defenses, the plaintiffs have tremendous leverage in False Claims Act litigation. (In one notable case, after failing twice to convince a jury that the defendant hospital had violated the law, the government threatened to exclude the hospital from participation in federal health care programs. Since exclusion is a financial death sentence for health care providers, the hospital ultimately agreed to settle the case.) Under these circumstances, and depending on the spe-cific facts at issue, reaching a settlement early on in False Claims Act litigation can be the most prudent course for a health care provider, assuming you are able to negotiate favorable settlement terms.

In this case, Linda looked to save the client tens of millions of dollars in liability, costs and fees, and prevent hospital personnel from having to divert their attention from providing quality patient care to engaging in litigation.

Linda and her team went to work to examine the charges and claims involved to show the US Jus-tice Department and the whistleblower’s counsel that the client had strong defenses it could assert to rebut allegations of Medicare reimbursement fraud. Arent Fox worked closely with the client in the painstaking collection and analysis of the hos-pital’s policies, procedures, claims and other docu-ments for the period when the improper billing of Medicare was alleged to have taken place. Using the information collected in conjunction with the complex formula Medicare uses to calculate outlier payments, Arent Fox attorneys presented their findings and defenses to government investigators, Justice Department lawyers and the whistleblow-er’s counsel.

In light of the findings and defenses Linda and the Arent Fox team were able to establish, the whistle-blower’s law firm recognized that its chances of winning had been significantly reduced. Con-sequently, the whistleblower and his attorneys entered into negotiations with Arent Fox to settle the lawsuit with Justice Department oversight.

COnTInUInG THe MISSIOn. In October 2008, Arent Fox’s Linda Baumann and a team of attorneys from the firm’s health care and litiga-

THE WHISTlEBlOWER SOUgHT $75 MIllION FROM THE HOSpITAl

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THE CASE WAS SETTlED FOR $1.75 MIllION

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tion groups finalized an extraordinarily favorable settlement agreement for their client. Indeed, the agreement negotiated by Arent Fox was one of the lowest amounts reportedly paid to the whistleblower in his various suits against other hospital systems.

Whereas the whistleblower had initially sought $75 million plus penalties from the hospital, Arent Fox won a settlement for its client, which ended the case for a fraction of that amount: $1.75 million. At the time of the settlement, Linda noted that “Our client was extremely pleased that we were able to settle the litigation for far less than any other hospital in an outlier case to date. While there have been numerous outlier cases, including a $265 million settlement, the settlement in this case is by far the lowest.” Perhaps most impor-tantly, the settlement agreement did not involve any admission of wrongdoing by the health care system. Nor did it require that the client enter into an expensive and burdensome corporate integrity agreement with the federal government, as is frequently required in False Claims Act cases.

While all of the other hospitals named in the same lawsuit ultimately settled the cases against them, the settlement amounts generally were far larger and the hospitals incurred substantial additional legal fees and disruption to their operations as a result of the ongoing litigation.

“Our client had devoted nearly 150 years of service to its patients with an emphasis on treat-

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nothing was more important than making certain their reputation remained intact.

ment of the poor,” Linda said. “Nothing was more important to them than making certain their good name and reputation remained intact. As the settlement recognized, our client maintains it did nothing improper. While our client would have pre-ferred the case go to trial and have a court of law declare the hospital completely innocent of any improper activity, they recognized that litigating this type of case would have been extraordinarily costly and consumed an inordinate amount of the hospital’s resources. Moreover, the likelihood of success is very slim. (When one hospital tried to take this outlier case to trial, the government intervened in the case, and the hospital settled soon thereafter.) As a result, our client decided the most prudent course was to seek settlement to put the litigation behind them so they could again focus on their mission to serve the most vulnerable members of our society.”

Lowell Brown, chair of Arent Fox’s health law prac-tice agreed. “In the area of False Claims defense work, often times the most important accomplish-ment is preventing the case from going to trial. Such was the case here. Demonstrating that our client had strong defenses to the whistleblower’s claims and negotiating a settlement that was acceptable to both the whistleblower and the gov-ernment for a fraction of the amount they originally claimed was a monumental accomplishment by Linda and the Arent Fox team. This result enabled our client to settle the case at a remarkably low cost with its well-earned reputation for decency and integrity intact.”

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Arent FoxIs

Thinking Big

Theno-WinScenario

A SURpRISINg pHONE CAll. Arent Fox’s Carol Connor Cohen, head of the firm’s ERISA litigation practice, was in her Washington, DC, office in October, 2004, preparing for a meet-ing with the senior benefits counsel of W. R. grace & Co., a premier specialty chemicals and construction materials company, which conducts business in 41 countries and more than 20 currencies, employing approximately 6,500 full-time people worldwide. grace’s top ERISA lawyer was on his way to discuss defense strategy for a class action lawsuit recently filed in federal court in Massachusetts by two former employees who claimed the company’s 401(k) plan had breached its duty to retirees by failing to sell grace stock before the price dropped.

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The suit, known as Evans v. Akers, alleged that the decision by managers of the Grace’s 401(k) plan (including Grace’s Board of Directors and various officers and other employees) to hold off selling the stock until early 2004 was impru-dent, and cost participants a significant share of their retirement savings. In filing suit against Grace, the plaintiffs sought hundreds of millions of dollars of damages they claimed they incurred because the plan managers (or “fiduciaries”) had not sold the stock a few years earlier.

As she reviewed some of the complex documents involved in the case, Carol’s phone rang. Grace’s benefits counsel was on the line. He had two messages. First, he was stuck in downtown DC traffic and would be a little late to the meeting. But it was the second message that would substan-tially impact Arent Fox’s representation of Grace.

The benefits counsel said he had just received word that another group of employees had filed a class action suit in federal court in Kentucky claiming that Grace breached its duty to 401(k) plan participants. Except these employees were arguing that Grace violated the law, not because it held on to the stock too long, but rather because the company did not hold on to the stock long enough and had sold it prematurely. The plaintiffs in the second suit — titled Bunch v. W. R. Grace & Co. — were alleging the plan should have retained the Grace stock absent evidence the company faced imminent collapse, and that plan managers failed to consider the stock’s potential increase in value before sell-ing to a third-party at a price of $3.50 a share.

In other words, the company was being hit with two different class actions from two groups of

employees (with a substantial overlap among the groups) who were making diametrically oppo-site claims about the same Grace stock. One side said Grace breached its duty because the company should have sold the stock sooner. The other side said Grace breached its duty because it should have held on to the stock longer.

Whatever it had done, Grace seemingly could not win... Seemingly.

But then Arent Fox went to work.

THe STOCk FUnD. W. R. Grace’s 401(k) plan offered participants the opportunity to invest their retirement savings in some 28 dif-ferent investment options, including the Grace Stock Fund, which invested in company stock.

In 2001, Grace filed for bankruptcy to resolve multi-billion dollar, industry-wide asbestos claims asserted against it. Two years later, as the company began to consider negotiations with its creditors and shareholders over the terms of a plan of reorganization, Grace decided to retain an independent fiduciary to take charge of the Grace Stock Fund. In February 2004, after consulting with outside financial consultants and legal coun-sel, the independent fiduciary informed 401(k) plan participants that it had determined that keep-ing the Grace stock was no longer prudent, and it began a program to sell the stock. By May 2009, all of the stock in the Grace Stock Fund was sold.

And then the lawsuits began.

Whatever it had done, W.r. Grace could not win...

Theno-WinScenario

Seemingly.

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THe TWO-FrOnT WAr AnD THe “PrU-DenT MAn.” The Arent Fox ERISA litigation team knew what was at stake and what they needed to do. They knew that the most effective and efficient way to show that Grace had done nothing improper, but rather had done every-thing legally and ethically possible to protect its 401(k) plan participants, was to shift the two-front war onto a single battlefield. Accord-ingly, Carol, together with partner Caroline English, argued to the courts that the cases should be combined so that they could be heard and adjudicated by one judge. Although opposed by the plaintiffs in both suits, Arent Fox was successful in having the cases consoli-dated and transferred to the US District Court for the District of Massachusetts in 2005.

After the two suits were consolidated into one case, Arent Fox began to systematically prove to the court that Grace had properly man-aged the 401(k) fund and had done everything possible to protect the plan’s participants. Adding a third Arent Fox ERISA litigation part-ner, Nancy Heermans, the Arent Fox team reviewed (and produced to the plaintiffs) reams of documents, while working hard to craft effective and persuasive legal arguments.

In January 2009, after years of litigation, including an argument before the US Court of Appeals for the First Circuit, Arent Fox prevailed. The appeals

court examined the steps taken before the stock was sold in 2004, and concluded that the plan’s investment managers had “unquestionably met” ERISA’s “prudent man rule” with regard to investment diversity, market conditions, and risk management and, therefore, did not breach their duties to the class members in the Bunch suit.

Arent Fox’s victory then rippled through the claims filed against Grace in the Evans suit, which had also made a trip to the US Court of Appeals for the First Circuit. Shortly after the appellate and trial courts in the Bunch case found that Grace acted properly and prudently in managing the sale of the Grace stock, the plaintiffs in the Evans case agreed to settle their claims for a fraction of the amount of money they were seeking.

Arent Fox’s successful defense of Grace in this uniquely complex set of ERISA lawsuits provides testament to the fact that, when the stakes are high for the client, there is virtually no shortage of innovation, creativity, energy, and talent that Arent Fox brings in successfully resolving the most Byzantine of cases.

Theno-WinScenario

Arent FoxIs

SavingLegacies

Arent Fox represents the rights of these deceased celebrities and assists their estates with any con-flicts or negotiations with motion picture, televi-sion and music producers, advertising agencies, licensing companies and stock photo houses that may want to use images or recordings of these legendary figures.

These deals incorporate a variety of niche areas of the law, including understanding the applicable principles of publicity, e-commerce, advertising, First Amendment, estate and intellectual prop-erty laws. The representative deals often extend

beyond US borders and require Arent Fox lawyers to be able to consider restrictions imposed inter-nationally, such as the publicity rights in Germany or the trademark laws in Italy.

Arent Fox has served as counsel in a variety of landmark right of publicity cases in California and other jurisdictions.

As a result, the Arent Fox team has become the leading law firm on issues involving post-mortem publicity rights.

THE WORlD OF DECEASED CElEBRITIES. What do Albert Einstein, the Three Stooges, Maria Callas, Steve McQueen and the Marx Brothers have in common? Arent Fox.

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ComingTogether

RUBICON pARTNERS. Since its formation two decades ago, london-based private-equity firm Rubicon partners has purchased more than 50 companies worldwide, and has turned profits, on average, of more than 30 percent a year. Over the years, Arent Fox has worked side-by-side with Rubicon, offering advice, counsel and legal services during many of these transactions.

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Rubicon has become a leader in at least 15 specialized-industry sectors. Its portfolio of com-panies produce a variety of technologies including precision micro-components for the aerospace and medical industries, compressed-air products for the automotive industry, advanced photo-graphic equipment for sale worldwide, and more. Rubicon owns production plants and out-sourcing companies in Shanghai, China, and manufacturing and distribution companies throughout Europe and the United States.

Arent Fox partner Jay Halpern looks forward to every Rubicon deal because they are always multifaceted, multinational and sophisticated. Still, even Jay acknowledges that the transaction Rubicon brought Arent Fox’s way in May 2009 was a challenge.

The phone call came just before Memorial Day weekend. One of Rubicon’s portfolio companies — Calumet Photographic — wished to change its borrowing basis from cash flow to asset-backed. Calumet supplies and sells imaging products, darkroom and studio equipment and other advanced photographic equipment through its stores in the United States and Europe. Liquidity from Calumet’s proposed financing was slated to replace a broader Rubicon loan from the Royal Bank of Scotland.

The deal required several transactions to happen simultaneously, with each transaction dependent on the success of the others, or the whole arrange-ment would crater. Even more daunting: the dead-line was June 30, less than five weeks away.

every part needed to fit together perfectly in order to close on time — and it did.

Arent Fox’s mission was to coordinate financing from Calumet’s Ireland-based lender, arrange a transfer of funds to Rubicon in London and orches-trate a pay-down to the Royal Bank of Scotland of a large chunk of Rubicon’s $55 million loan. All these moving parts had to fuse together concur-rently for the respective debts to be satisfied. On top of that, Calumet had been served with a lawsuit in California from an earlier business dealing that had to be resolved before any of the current trans-actions could occur.

“There were a myriad of moving parts,” Jay recalls. “But it was really the tight timeframe that made it so challenging.”

Rubicon’s deal involved entities all over the world, including two international banks, several European governments, a manufacturing plant in Asia and more than 30 Calumet affiliates throughout Europe and the United States. Not only did the transaction involve resolving subordinated debt in the United States and navigating an array of foreign laws over several continents, but also negotiating with land-lords at each of Calumet’s locations.

“It was like dumping a thousand piece jigsaw puzzle onto a conference room table and trying to assemble it as fast as possible,” Jay explains.

Rubicon had local counsel in each of the countries involved, but it chose Arent Fox to lead the deal. Rubicon knew from past experience that Arent Fox’s strategic vision and practical, solution-ori-ented approach would get the project completed competently and quickly.

“We had teams from corporate, real estate, intel-lectual property, litigation, tax, employment and more,” Jay said. “We had to pull in multiple areas of skill, knowledge and experience from all three Arent Fox offices in Washington, New York and Los Angeles. And we had to work seamlessly between the departments and the offices in order to close on time.”

Arent Fox attorneys working on the deal with Jay included partners Steven Bledsoe, Wib Chesser, Alan Dubin, Quana Jew, David Gryce, counsel Juliana Haydoutova and associates Michael Gibson, Kelli Scheid, and Jim Shipe.

The Washington office quarterbacked the bulk of the deal, the New York office handled a complex piece of the Royal Bank of Scotland pay-down and the Los Angeles office successfully squashed Calumet’s dispute in California.

“When the deadline came, everything was in place for a simultaneous and seamless close,” Jay recalled. “It was an extraordinary challenge to manage the various aspects of the deal during a tight timeframe in a very fluid environment. Even greater than the challenge, however, was the sat-isfaction we all felt when the deal came together exactly as the client had wanted.”

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ClearingLanes

SWISH!! At 11:59 pm on Friday, February 26, 2010, with the clock ticking down the final seconds, Michael Jordan took a long jumper from the corner over former Houston Rockets president and CEO george postolos and scored the winning basket, clinching the title of majority owner of the Charlotte Bobcats NBA franchise.

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Who would buy the Bobcats? George Postolos or Michael Jordan?

Arent Fox GoesOne-on-OneWith Michael Jordan

It was the last minute of the last day of Jordan’s 60-day right of first negotiation period when the Arent Fox team of Rich Gale, Amy Donnelly, and Liz Mullen, representing Robert L. Johnson the majority owner of the Bobcats, confirmed with Jordan’s lawyers at Wachtell Lipton Rosen & Katz that the last terms of the deal had been resolved and signature pages were released.

The legendary “MJ” had just completed purchase of the Charlotte Bobcats, becoming the first former NBA player to buy a majority interest in an NBA franchise.

In 2001, Robert Johnson became the first African-American billionaire when he sold Black Entertain-ment Television (BET), the premier cable network he founded and launched in 1980, to Viacom for $3 billion. Johnson would go on to form The RLJ Companies, LLC a diversified holding company that owns interests in businesses operating in banking, private equity, hospitality, automobile dealerships, entertainment, professional sports and video lottery terminal (VLT) gaming. Arent Fox has been fortunate to be part of this exciting period of Mr. Johnson’s business career.

In 2002, Mr. Johnson turned to then Arent Fox partner Van Sinclair (now President of The RLJ Companies) when he was awarded the Charlotte Bobcats NBA expansion franchise. The Bobcats debuted in 2004, and two years later played its first home game at the new state-of-the-art Time Warner Cable Arena. Two years later, Mr. Johnson persuaded Jordan to join him as a minority owner and head up basketball opera-tions for the Bobcats.

Jordan quickly made his mark with the Bobcats. To lead the team in the 2008-2009 season, he

hired Larry Brown, one of the most respected and successful coaches in the history of the sport. Over the next two seasons, Jordan engineered a number of trades that in 2010 transformed the Bobcats – for the first time ever – into a playoff team.

When Johnson decided to sell his majority interest in the Bobcats, it quickly came down to two lead-ing candidates – a group led by former Houston Rockets president and CEO George Postolos and Michael Jordan.

Initially all eyes were on the group led by Posto-los, which had a head start in negotiations and served as the trigger in starting the time clock on Jordan’s right of first negotiation. With just a few weeks before the period was set to expire, Jordan made the decision to pursue the team, and his representatives charged forward in an effort to catch up with the Postolos group through round-the-clock due diligence, negotiations and discussions with Johnson’s representatives, the NBA and the team’s lenders. The deal garnered heightened media attention as the competition for the team intensified in early February 2010.

The Arent Fox team negotiated the two transac-tions – with the Postolos group and with Jordan – simultaneously, and from day to day the lead continued to change hands. Jordan, as a minor-ity owner of the team since 2006, the current head of the team’s basketball operations and a former University of North Carolina Tar Heel, was declared to be favored by coach Larry Brown, who commented: “I’m hopeful that at the end of the day (after a sale) Michael will be running the Bobcats.” Yet the Postolos group was already fur-ther down the road with the negotiation of defini-tive documents and completion of due diligence. Adding another layer of complexity, the transac-

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tion could not be effective without the blessing of the NBA. Jordan, as a former player and with ties to player sponsorship companies such as Nike, would have additional hoops to jump through to comply with the NBA’s ownership transfer rules and restrictions.

TeAMWOrk. The deal teams on all sides continued to work diligently around the clock, and the NBA worked closely with the parties to evaluate and vet each potential buyer. Definitive documents were finalized with both the Posto-los group and Jordan on February 26th, the last day of Jordan’s negotiation period, with Jordan emerging as the winner.

Less than three weeks later, the NBA Board of Governors met on March 17th to unanimously approve the $275 million transaction, and Arent Fox and Wachtell closed the transaction that day. Mr. Johnson handed over majority control to Jordan, stating: “The best decision I made since acquiring the Bobcats was to convince my friend Michael to become an investor in the Bobcats and to appoint him as managing member of basketball operations,” saying he looked forward to Jordan taking the Bobcats to new and exciting heights as majority owner. Jordan is the first former player to become an NBA owner and the second African-American majority owner of a major professional sports team. Mr. Johnson retained a minority own-ership interest in the team and continues to serve as the Bobcats’ governor to the NBA.

The NBA echoed Mr. Johnson’s sentiments, with Commissioner David Stern commenting: “We are pleased that Michael Jordan’s purchase of major-ity ownership of the Bobcats was approved by the NBA’s Board of Governors and closed in such a smooth and expeditious fashion. We look forward

to the continued growth of the Bobcats, on and off the court, under his leadership.”

Johnson, Jordan and their respective deal teams, including the attorneys from Arent Fox, gathered to celebrate the closing in Charlotte at a rousing and packed home game where the Bobcats came from 16 points behind to beat the Oklahoma City Thunder 100 to 92, marking Jordan’s first victory as team owner. “Purchasing the Bobcats is the culmination of my post-playing career goal of becoming the majority owner of an NBA fran-chise,” Jordan said in a statement. “I am especially pleased to have the opportunity to build a winning team in my home state of North Carolina.”

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DevelopingWorlds

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DevelopingWorlds

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Justicereform InAfghanistan

THE ROAD THROUgH KABUl. Increased chatter prompted worries among security officials that Al Qaeda and Taliban operatives were planning attacks on the roads through-out Kabul. Those concerns were now being conveyed directly into the radio earpieces of the US Bureau of Diplomatic Security team as they drove a convoy of four armored Toyota land Cruisers through the streets of Afghanistan’s capital city on the way to Kabul International Airport. The main road to the airport had been the scene of numerous improvised explosive device (IED) attacks in the past, so security agents made the last-minute decision to change the route of the convoy and take an alternative course to the airport to reduce the threat of attack. There was a chance that the terrorists had learned the identities of those being transported in the convoy

Traveling inside one of the armored SUVs, wearing a flak jacket, was Robert C. O’Brien, partner-in-charge of Arent Fox’s Los Angeles office and co-chair of the US State Department’s Public-Private Partnership for Justice Reform in Afghanistan. Sitting alongside Robert was his colleague in the Partnership, US District Judge David O. Carter. Both men had traveled to Kabul, along with State Department official Tim Nusraty to consult with Afghanistan’s political and legal leaders on strengthening the rule of law in a nation torn apart by decades of war, tyranny, religious strife and tribal divisions.

THe rULe OF LAW AnD A BATTLe OF IDeAS. Arent Fox’s O’Brien was appointed co-chair of the Public-Private Partnership for Justice Reform in Afghanistan by then-Secretary of State Con-doleezza Rice at a State Department reception in December 2007. “This historic partnership will benefit not only the people of Afghanistan but the people of the United States as we assist our friends in building a rule of law-based society in that critical region of the world,” said Robert as he spoke before the distinguished international gathering of diplomats, journalists and attorneys, including Secretary Rice and the then-Attorney General of Afghanistan, Abdul Jabbar Sabit. “The Afghan people face a great challenge — reestab-lishing the rule of law throughout their country to ensure that all members of Afghan society — both citizens and rulers — are bound by a set of clearly defined and universally accepted laws. This effort is not without risk for Afghan prosecutors, judges and lawyers. Some have already paid the ultimate sacrifice in this noble cause to bring justice and equality to their people.”

Since his appointment, Robert has spearheaded the Partnership’s efforts to assist the democrati-cally elected Afghan government in creating a new legal system that embraces fundamental

rights such as access to defense counsel and clearly defined rules of evidence and procedure.

The Partnership, which includes a number of the nation’s leading law firms, has planned and held several training workshops for Afghan judges, prosecutors and defense attorneys, including a historic two-week program held in Los Angeles and Washington, DC, for 14 women lawyers from Afghanistan. Among the workshop’s key-note speakers were former US Supreme Court Justice Sandra Day O’Connor and Secretary of State Hillary Clinton.

Under Robert’s leadership, the partnership has placed an Afghan judge into a graduate law pro-gram in California and currently has a number of Afghan lawyers pursuing LLM degrees at Harvard and Washington and Lee law schools. The Partner-ship has secured commitments from more than a dozen US law schools to provide tuition-free train-ing to Afghan lawyers, who will then return to their country, to bravely rebuild their country’s justice sector in the face of threats from the Taliban. These future leaders of Afghanistan will help bring their nation into the international legal community.

In March 2008, Robert spoke at the United Nations headquarters in New York City to report on his fact-finding mission to Afghanistan and his meetings with Chief Justice of the Afghanistan Supreme Court Abdul Salam Azimi; Afghani-stan’s Attorney General; the executive director of the Legal Aid Organization of Afghanistan; members of the Afghan Prosecutors Association; and other officials.

“The Dag Hammerskjold Conference Room at the U.N.’s headquarters was overflowing that day with diplomats, legal experts and reporters,” recalls Robert. “People are keenly interested in what is going on in Afghanistan. Everyone

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Justicereform InAfghanistan

knows that it is essential to international security that we succeed in that nation and that it does not fall back into the hands of the Taliban and their Al Qaeda allies.”

“The war on terror is more than a military conflict. It is also a battle of ideas. The Public-Private Partnership for Justice Reform in Afghanistan through low cost/high impact justice reform projects seeks to undermine the tyranny that terrorism represents with the universal ideals of equal justice under law and respect for human rights,” Robert said. “I am proud to be a member of a firm that generously supports the coura-geous men and women of Afghanistan’s legal profession as they seek to build a better nation and a better life for their fellow countrymen.”

Photograph of Robert C. O’Brien (r.) and US District Court for the Central District of California Judge David O. Carter (l.) in Kabul, Afghanistan

Photograph of O’Brien (l.), Afghan Attorney General Abdul Jabbar Sabit (center) and US District Court Judge Carter.

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Justicereform InAfghanistan

WASHINGTON, DC — DECEMBER 13, 2007 — Robert C. O’Brien, managing partner of Arent Fox’s Los Angeles office, speaks at a ceremony held at the US State Department in Washington, DC, to launch the Public-Private Partnership for Justice Reform in Afghanistan. O’Brien was appointed by Secretary of State Condoleezza Rice to co-chair the partnership. Also pictured (L-R): (i) Afghanistan Attorney General Abdul Jabbar Sabit; (ii) US Secretary of State Condoleezza Rice; (iii) Ambassador Thomas A. Schweich, US Coordinator for Counternarcotics and Justice Reform in Afghanistan.

Inside one of the armored SUVs, driven by armed agents, wearing a flak jacket, was robert O’Brien.

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Breaking DownBarriers

A lONg RUNNINg BORDER WAR OVER TIMBER. The first salvo in the lumber Trade Wars between the United States and Canada was launched in 1982. The roots of the conflict, however, extend all the way back to the early 19th century during America’s great Westward Expansion.

More than 70 percent of the productive timber land in the United States is owned or controlled by private interests. This is the legacy of massive land grants given to pioneers in the mid and late 1800s to encourage westward development. Just across the 39th parallel to the north in Canada, however, an opposite reality exists. In Canada, more than 70 percent of productive forest lands, including the world’s largest boreal forest, reside in public hands. The Canadian forests are owned and controlled by provincial governments in perpetual trust for the benefit of current and future generations.

TheTimberWars

More than 70 percent

of timber land in the

United States is

owned or controlled by private interests.

In Canada, more than 70 percent of forest-lands are owned and controlled by local govern-ments.

This distinction in the historic, political and econo-mic development of each nation and the treatment of their respective forestlands planted the seed of what has become one of the most significant, pro-tracted trade disputes in modern times.

STUMPAGe FeeS. For decades, US timber and lumber interests have argued that the public ownership of Canadian forest lands and Canada’s use of the so-called “stumpage fee” system amount to a de facto subsidization of Canada’s lumber producers, giving Canada an unfair advantage in the US market.

“Stumpage fees” are payments made by Canadian lumber companies for the right to harvest timber on public land. The fees are set by the provincial gov-ernments that own the forest. In the United States, stumpage fees and log prices are determined through negotiations between private landowners and lumber mills. This difference between the US and Canadian pricing systems has been at the heart of a trade war over lumber waged by the two nations over the past 30 years.

Claiming that Canada’s stumpage fees are set too low, amounting to an improper government subsidy of the Canadian lumber industry, protectionist US lumber producers have brought numerous trade actions challenging Canadian timber pricing and management systems, seeking the imposition of onerous duties on Canadian softwood lumber. The goal of these duties? To limit the volume of lumber imports from Canada, raise the price of those imports, trigger an increase in US lumber prices, all of which would ultimately raise the cost of housing in the United States, which consumes 80 percent of all the lumber sold in the US market.

For nearly 20 years, Arent Fox has represented the Province of Québec, Canada’s second largest lumber producing region, in the many facets of this

critical international trade dispute, responding to new assaults on the Canadian lumber trade and protecting the interests of US homebuilders, American consumers, and Québec.

In the most recent iteration of this long running dispute, six years of aggressive advocacy by Arent Fox’s international trade group led to unanimous appellate findings that lumber producers in Canada are not subsidized and that imports of softwood lumber from Canada do not threaten material injury to US lumber producers. The Arent Fox team authored and presented the decisive arguments leading to the appellate ruling that no actionable subsidies were provided to Canadian lumber producers.

In 2010, Canada won decisive victories in a novel arbitral proceeding brought by the United States government against forestry measures in Qué-bec and Ontario. Again, a number of US lumber interests sought to limit imports and raise the cost of lumber in the US market. On behalf of Québec, Arent Fox succeeded in having a majority of the US claims dismissed and the scope of eventual remedies, if any, limited to a small fraction of the original claim.

Ever since the 1980s, Canada has responded to each legal challenge in the Lumber Trade War with an impressive series of victories in US courts, North American Free Trade Agreement tribunals, and before the World Trade Organization.

And the architect behind many of these victories has been – and continues to be – Arent Fox.

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On October 30, 2009, president Barack Obama entered the Diplomatic Reception Room in the White House to sign the Ryan White HIV/AIDS Treatment Extension Act of 2009 into law.

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Standing beside the President as he signed the bill was Jeanne White-Ginder, the mother of Ryan White, the courageous youth who, after contracting HIV through blood-based products used to treat his hemophilia, had become the nation’s leading voice urging an end to discrimination against those with AIDS.

In signing the legislation, the President autho-rized a four-year extension of the Ryan White Program, the largest federal program specifically dedicated to providing HIV care and treatment. Since its creation in 1990, following Ryan’s death earlier that year from an AIDS-related respiratory infection, the program has assisted heavily impacted metropolitan areas, states, and local community-based organizations across the United States. The Ryan White Program has provided life-saving medical care, medica-tions, and support services to more than half a million people each year, with an emphasis on the uninsured and underinsured, racial and ethnic minorities, and low-income families.

Arent Fox partners Hunter Carter and Jon Bouker represented the Communities Advocat-ing Emergency AIDS Relief (CAEAR) Coalition — a national organization formed in the early 1990s to advocate on behalf of people liv-ing with HIV/AIDS — and worked closely with Members of Congress, their staffs and admin-istration officials, to help guide the bill through the US House of Representatives and Senate.

Upon President Obama signing the bill into law, Jon Bouker, who is co-manager of Arent Fox’s government relations practice, reflected on the firm’s role in helping secure passage of the legislation. “Just weeks after Ryan passed away in 1990, Sen. Ted Kennedy, who intro-duced the original Ryan White Care Act, spoke to his Senate colleagues as they prepared to vote on the legislation, ‘This courageous young man, stricken with a terminal illness, first fought against unfounded fears and prejudice in his attempt to continue going to school with his peers. Then through his tireless efforts he sought to educate and explain the realities of his illness. Such courage for a young man. Such a mark he has left on his fellow man. Together, we learned a lot. It is, in my opinion, a very fitting tribute that this bill be dedicated to him.’ In following Sen. Kennedy’s lead and assisting CAEAR in advocating for this life-saving program that bears Ryan’s name, Arent Fox is proud to have played a role in honoring Ryan White’s legacy.”

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