Will Congress & the President Strike a Deal to Avoid the Fiscal Cliff? Will the Election Help or Hurt?

DANGER AHEAD:

Dow Lohnes Sports & Entertainment

Retreat for NFL Clients: The Business of Sports and Life

Your inside connection to all of the latest happenings at Dow Lohnes, PLLC

Trouble Ahead, Trouble Behind:A Look at Mandatory Arbitrationin Consumer Contracts

Sneak Peeks: Chairman Len Baxt’s 40th Anniversary Party and Our All Attorney Retreat!

CONTENTS

2

CONTENTSOCTOBER 2012

04 Cover Story: HurtlingTowardsa“FiscalCliff”?

06 Alumni Spotlight: Kathy Payne, Vice President of Content Acquisition, Cox Communications

12 Feature Story: Trouble Ahead, Trouble Behind: Has The Supreme Court Finally Cleared The Tracks for Mandatory Arbitration in Consumer Contracts?

14 All Attorney Retreat

18 Sports & Entertainment: 2012 NFL Player Retreat

20 Congrats to our Chairman: Len Baxt celebrates 40 years with Dow Lohnes!

WELCOME

magazine team

Since it had been 79 years since Washington had a team in post-season contention, it was a lot of fun to watch the city embrace the Nationals and to feel the excitement around town (and the office!) with playoff baseball back in DC. Even though the Nationals were not able to advance, it served as a good reminder of the importance that diversion, sport, and team spirit offer in creating bonds for individuals and communities.

As you will read in the article “Attorney Retreat“ (see page 14), at the beginning of this month we were fortunate to enjoy some firm diversion at an all attorney retreat on the Eastern Shore of Maryland. Spending the weekend with my Dow Lohnes partners and colleagues reminded me of just how special the bond is at our firm and how fortunate I am to work among not only outstanding attorneys, but wonderful friends. These long standing relationships were also on display as we celebrated the 40th anniversary of our Chairman, Len Baxt, in September.

Both of these occasions highlighted for me how inspiring it is to work with people with whom I share a strong sense of collective purpose and history, both of which are based squarely on the interesting and challenging work we are fortunate enough to perform on behalf of our clients. To that end, as we look ahead to the Fall holiday of Thanksgiving, I would like to take a moment to thank all of our clients for continuing to put your trust in our team. We are extremely grateful and appreciate the opportunity you give to us to be a part of your teams.

As always, we welcome any feedback or thoughts you may have on how we’re doing. Send us an e-mail at connect@dowlohnes.com!

Magazine TeamEDITOR: Erin Dwyere: edwyer@dowlohnes.com

HEAD OF DESIGN: Nikki Cipollae: ncipolla@dowlohnes.com

ContributorsAlida BarlettaJoan HendricksNorm LentDavid MillsDaniel PrichardKen SalomonAlyssa Saunders

@dowlohnes

While some of the articles in this magazine contain general legal information, they are not intended as legal advice. Readers should not act on this information without first seeking professional legal counsel addressing the relevant facts and circumstances.

John T. Byrnes

MESSAGE FROM THE

MANAGING PARTNER

3

Contact us:Do you have questions, feedback, or story ideas?

If so, Connect with us at:connect@dowlohnes.com

Hurtling Towards a Fiscal Cliff ?

4 COVERSTORY

BY: Norm Lent & Ken Salomon, Dow Lohnes Government Strategies

December 31, 2012, will see the expiration of approximately $607 billion in Bush and Obama tax cuts and the implementation of spending restraints imposed under the 2011 debt ceiling deal. Many economists believe that this one-two punch of massive tax increases and spending reductions could drive the U.S. economy into another recession or, over a Fiscal Cliff.

The Fiscal Cliff poses a huge challenge for U.S. political and economic leaders. No one knows if the fragile U.S. economy and the recovering -- but still skittish -- financial markets can withstand yet another round of high-stakes Republican versus Democratic brinksmanship. And with the only way to avoid the Fiscal Cliff is for the President and Congress to reach an agreement changing current law, inevitably a hurried negotiating process will be characterized by brinkmanship.

If an agreement is not reached, Bloomberg estimates that the “hit to the economy” would be about 4% of gross domestic product as a result of the increases in capital gains, dividend, individual, payroll and estate tax rates that would go into effect, along with a heightened alternative minimum tax, less generous depreciation, reduced Medicare reimbursements, lower emergency unemployment benefits, dramatically scaled-back federal spending in both the defense and non-defense areas, and other negative tax and spending impacts.

While an agreement could be struck in a post-election “Lame Duck” session this year or in early 2013, it will likely be dependent upon the outcome of the November 6th Presidential and Congressional elections. Our conversations with senior Republican and Democratic members of both the House and Senate indicate hope that somehow Congress and the President will find a path forward at some point, but it will not necessarily be before December 31. And while there seems to be optimism that a deal will be reached, no member could describe what that path looks like with any degree of specificity or confidence.

How Did We Get Here?In August 2011, President Obama and a sharply divided Congress needed to raise the federal government debt ceiling to avert a catastrophic default on U.S. debt obligations. So in the Budget Control Act of 2011 (BCA), the President and the Congress agreed to increase the debt ceiling, impose spending caps (resulting in $917 billion in deficit reduction over ten years), and establish a Joint Select Committee on Deficit Reduction (known as the “Super Committee”) to find at least $1.2 trillion in savings from unspecified entitlement spending cuts and revenue increases over ten years.

In the hope of forcing a successful negotiation before November 2012, the President and the Congress agreed that, absent a compromise, billions in automatic and drastic defense and non-defense spending cuts—known as a “sequester”—would go into effect on January 1, 2013. The BCA sequester provisions and the December 31 expiration of the Bush and Obama tax cuts, unemployment benefits and Medicare reimbursement provisions are inextricably linked and together are known as the Fiscal Cliff -- although in reality the cliff is more of a slope because the cuts will take many months to kick in.

Outlook TodayAs we know, the President and Congress never reached a “grand bargain” on spending cuts and tax increases and the Fiscal Cliff is rapidly approaching. In addition, the debt ceiling will need to be increased in mid-February, and the current Continuing Resolution funding the government expires March 31, 2013.

Most observers see about a 60-70% likelihood that during the post-election one-month Lame Duck session beginning November 13 President Obama and the Congress will, at a minimum, agree to punt on “kick-the-can” legislation addressing the Fiscal Cliff. The legislation likely will postpone all or most of the tax increases and spending cuts until sometime in mid-2013 to give Congress and the President more time to reach a global agreement that could include comprehensive tax and entitlement reform.

The “kick-the-can” legislation likely would include a debt ceiling increase to avert a legislative donnybrook in February. It also could include a modest “down payment” on spending reductions together with an outline of tax changes that would be approximately as progressive as current tax law.

Effects of the Election on Finding a Path Off of the CliffThis punt scenario is more likely to occur if the election maintains the status quo - President Obama wins, the Senate remains under Democratic control, and the House remains under Republican control.

In this scenario however, a stumbling block could arise in the form of a Democratic perspective that “We won and Romney lost,” and therefore the Bush tax cuts for upper-income taxpayers should expire under any agreement, including a kick-the-can bill. House Republicans likely would counter, using their majority in the House and to hold firm to their steadfast opposition to “decoupling” upper-income and middle-income tax cuts.

Several other factors may complicate finding a path to avoid the Fiscal Cliff. First, current election projections indicate a slimmer Republican majority in the House and a narrower Democratic majority in the Senate--making it even more challenging for party leaders to deliver on deals. Second, the composition of the Republican caucuses in both the House and Senate likely will be more conservative and the corresponding Democratic composition likely will be more liberal, providing fewer moderates on both sides as bridge-builders and deal-makers. Third, Republicans probably will likely attribute a Romney defeat to a failure to articulate conservative values and will be even more reluctant to compromise with victorious Democrats.

A less likely alternative to the “punt” post-election Lame Duck scenario is a “grand bargain” on long-term deficit reduction. A bipartisan group of Senators continues to work on a rough outline of “center-out” legislation that includes a $4 trillion deficit reduction target based on tax and entitlement reforms with general instructions to congressional committees to fill out the all-important details, a postponement of the sequestration, and a yet-to-be-negotiated continuation of some portion of the Bush and Obama tax cuts.

The Senate-based center-out/grand bargain path is difficult given that it will generate opposition from both ends of the political spectrum within the Senate. Recently, Senator Chuck Schumer (D-NY) publicly criticized this approach and stated that any extra revenues from loophole closing should go towards deficit reduction rather than lower rates.

Moreover, President Obama and House Republicans are not part of the negotiations. House Speaker Boehner, for instance, has questioned the advisability of a Lame Duck Congress making major decisions on long-term fiscal issues. That said, the bipartisan Senate discussions at least provide a framework for a solution, even if in 2013.

Republican SweepIf Governor Romney wins the presidency and the Republicans narrowly take control of the Senate, Congress and outgoing President Obama may agree on a “punt” bill during the Lame Duck. That scenario assumes that President Obama and outgoing Senate Majority Leader Reid will agree to a continuation of the Bush tax cuts for upper-income taxpayers—something they accepted after the 2010 election but have adamantly opposed doing again. At the same time, the victorious Republicans cannot agree to decoupling middle-income and upper-income tax cuts, even for a short period.

Given this dynamic, the two parties may paradoxically both believe that they’ll have more leverage if the Lame Duck yields no deal. In fact, Senator Patty Murray (D-WA), co-chair of the Super Committee, has said that going over the Fiscal Cliff is better than accepting a “bad deal” in the Lame Duck because the former would spread the pain of deep cuts and higher taxes more equitably. Similarly, a number of Tea Party Republicans already have made clear their opposition to any compromise on revenues and seem willing to accept the Fiscal Cliff to bring about government austerity.

Under the Republican sweep scenario, in early 2013 the new President and the Republican Congress would be under tremendous pressure to agree on a quick, retroactive solution given a likely deteriorating economy and nervous financial markets.

Conservative House Republicans firmly in control of the House, Senate Republicans grappling with a slim majority and Senate rules favoring the minority party, and President Romney facing re-election in 2016 will have to work together on a package—most likely in the face of determined Democratic opposition.

One could see a split in the Republican base, with the corporate and financial sectors willing to accept a more modest bill that provides business certainty going forward while the Tea Party conservatives demand a more sweeping, long-term approach reflecting President Obama’s defeat and the Republican win in the Senate.

Stay Tuned…While the Fiscal Cliff undoubtedly poses an enormous challenge for U.S. political and economic leaders, the irony is that the long-term challenge of balancing revenues and expenditures and reducing the U.S. national debt becomes even more daunting if political uncertainty throws the economy into another recession with resulting lower tax revenues and higher expenditures.

As always, the upshot is “stay tuned.”

For more information on the Fiscal Cliff or other legislative matters, please contact Norm Lent (nlent@dowlohnesgov.com) or Ken Salomon (ksalomon@dowlohensgov.com).

COVERSTORY

5

6 ALUMNIFEATURE

DOW LOHNES ALUMNI

WHERE ARE THEY NOW?

Television programming rights deals used to be relatively simple: cable, satellite and other carriers would strike a deal with networks and content providers to air their programming on a single, analog television channel. These days however, programming is distributed in analog and digital formats, in high definition, in multiple languages, on a live and on-demand basis, and over a myriad of platforms and mobile devices. Not surprisingly this has led to the agreements becoming more contentious, complicated and lucrative. For Dow Lohnes alumni Kathy Payne, who now serves as the Vice President of Content Acquisition for Cox Communications, the changes have presented challenges but have also created a job that allows her to evolve with the space and to use the skills she’s honed as a lawyer and as a business person. “With the surge in demand for streaming on mobile devices and over-the-top-competitors like Netflix, programming agreements are constantly changing and the complexity is incredible. But it’s part of the reason I enjoy my job so much. I get to always be evolving and growing as well.” The irony of the new and complicated landscape for programming agreements is not lost on Payne. When she joined Cox in 1993, she was just the second attorney in the company’s legal department. Shortly after her arrival the small department looked at the work it sent to outside counsel versus what was

done in house. At the time, programming agreements were handled by outside counsel. Being their core business, Payne didn’t think it made sense and recommended Cox keep the agreements in house. “And since it was my idea, I kind of had to volunteer to do it!”

So for years, Cox and Payne did their programming agreements in house, but as the deals have grown in complexity and scope, they once again use outside attorneys, including primarily Dow Lohnes, to assist Cox with the agreements. And Payne now focuses on the business side of the deals. “My main goal is to get my customers the best and most content at the most reasonable price. And on as many platforms as possible so they can use it wherever or whenever they want,” she says. But getting the “best and the most” for her customers is a delicate balancing act. For instance, with the recent announcement of Time Warner Cable’s SportsNet and Deportes

channels that will carry the Lakers and other L.A. sporting events, Payne has to figure out the value for her customers for the programming that will be carried on two channels – SportsNet broadcast in English and Deportes in Spanish – and two different formats (analog and digital). The reported price of the channels, almost $4 per customer, makes them some of the most expensive in the country, meaning finding a way for distributors to justify the cost becomes even more difficult. “It can be particularly tricky when you’re dealing with sports programming to find a solution where both sides can have their business objectives met. We have to figure out a way to balance the needs of a lot of customers who really want to watch the Lakers play, with probably just as many who don’t care about sports or the Lakers. We try and contain the cost and make the best use of our bandwidth. Being able to find creative solutions is crucial.” Payne also underscores the importance of communicating well in her job, a skill she says she learned in her early days at Dow Lohnes. “When you work as a young lawyer at a law firm, you learn quickly to know your stuff and to articulate complicated things in a way that is easy for clients to understand. And that’s invaluable. I recommend that any young lawyer or law student spend time as a practicing attorney

Kathy and her husband, David, at the 2012 Olympics.

7 ALUMNIFEATURE

before doing other things, whether it’s on the business side or in another profession. You learn skills that are very transferable and extremely important in many other arenas.” Payne also credits her Dow Lohnes days with providing her with some great mentors as she was starting out. John Byrnes and many others in the corporate group taught her invaluable corporate attorney skills. David Wittenstein helped her navigate the communications and intellectual property law fields and led her to her current role at Cox. Joyce Gwadz and former Dow Lohnes attorney Donna Gregg, who went on to serve as the chief of the FCC’s Media Bureau, “were great female role models when I was a young attorney. And at that time, there weren’t as many people like me, who had complicated lives that not only included busy jobs, but a husband who also had a demanding career and kids. It was difficult to find people to look up to who could balance being part of their family’s day-to-day successes while also having a really interesting and fulfilling job.” But today Payne sees a more diverse set of role models and career choices for women and young lawyers more generally. One of her passions is helping women in the business. As part of that desire, she has served on the Board of Directors for Women in Cable Telecommunications (WICT) for seven years and is in her second year as Chair of the organization. Her efforts have not gone unnoticed, as she was named a 2009 “Wonder Woman” by Multichannel News and has been honored six times as one of the “Most Powerful Women in Cable” by Cable World/CableFAX.

When asked what unique skills she sees women bring to the table as attorneys, Payne notes that “Women are great at multi-tasking because in addition to having challenging careers, we are moms and wives at home, serve on boards and engage with our communities so we learn to have a lot of skill sets and touch points.” She has noticed that a lot more women have moved into the role of being key negotiators. “I think that’s because we’re often really good at seeing the forest and the trees. And women tend to be a little more consensus driven which helps a lot in building trust and relationships and finding solutions that work for everyone.” Clearly Payne’s own skills in diplomacy have been finely tuned. Having resided in both Washington, DC and Atlanta, where Dow Lohnes’ main offices are, we couldn’t resist asking which city is a better place to live. “Both,” she says without missing a beat. “DC is so international and young, with a great energy. But I love Atlanta because it is a livable city, the weather is great, and I’ve grown fond of the Southern Charm.”

Anatomy of a Wonder Woman

• Payne received her bachelor’s degree in public policy studies, magna cum laude from Duke University, and a J.D., with honors, from the Duke University School of Law. • Her husband, David, SVP and Chief Digital Officer for Gannett, is also “double- Duke” but this year their oldest daughter opted to attend George Washington. Kathy has her fingers crossed that their younger daughter will consider becoming a Blue Devil. • Kathy’s advice for in-house counsel: learn your clients’ businesses. “You are

absolutely invaluable if you truly understand your clients’ industry and business.”• One word to describe herself? “Optimistic. Otherwise I would never do deal work!” She

adds (further providing evidence to support our theory that attorneys can never answer a question in just one word…).

• Her advice for young attorneys and business people: You can’t have it all, all at once. So find a balance that works for you.• If she won the lottery, Kathy says she would travel a lot, starting with a return trip to Italy. “And, as they say on NPR, do some real and lasting good.”

“When you work as a young lawyer at a law firm, you learn quickly to know your stuff and to articulate complicated things in a way that is easy for clients to understand. And that’s invaluable.”

8 NEWSMAKERS

The firm’s movers,

shakers, and newsmakers!DOW LOHNES

NEWSMAKERSQuotedOCTOBER 4, 2012Michael Goldstein was quoted in the article “As Online Course Agreement Forms, Some Worry About State Regulation” in eCampus News.

OCTOBER 1, 2012Rick Kessler was quoted in Law360’s “Senate Energy Panel Shake-Up May Put Gas On Front Burner.”

SEPTEMBER 24, 2012Adam Chase discussed sports programming negotiations with Forbes in an article entitled “Sports Networks Making Risky Bets on Baseball.”

SEPTEMBER 21, 2012Adam Chase was quoted in the International Business Times’ article “NFL and Time Warner Cable Reach Deal on NFL Network.”

SEPTEMBER 14, 2012David Long was featured on Bloomberg TV where he discussed the Samsung and Apple Patent War.

SEPTEMBER 14, 2012Jim Burger was quoted in the Philadelphia Business Journal’s article “Google May Sell Motorola Division”

SEPTEMBER 2012David Wittenstein & Gerald J. Lewis, Vice President and Deputy General Counsel of Comcast, co-authored the article “Infringement and the Scarlet Newsletter” in the September issue of ACC Docket.

AUGUST 28, 2012Rick Kessler was quoted in the AOL Energy article “Energy and the Presidential Race: What’s Real and What’s Politics?”

AUGUST 24, 2012David Long discussed standard-essential patents with Bloomberg News in the article “Apple Counts on iPhone Being Too Cool for US Import Ban.”

AUGUST 15, 2012David Wittenstein was quoted in the ADWEEK article “Aereo Wannabe May End Up Aiding Broadcasters.”

AUGUST 7, 2012Gregory Ferenbach was quoted in The Chronicle of Higher Education article “Despite Halt in Federal Enforcement, States Move Ahead With Regulations for Online Programs.”

JULY 17, 2012Dow Lohnes Sports & Entertainment 2012 NFL Player Retreat was profiled in Sports Illustrated (for more on the retreat, see page 18).

JULY 13, 2012Peter Coffman and Michael Goldstein were quoted in Inside Higher Ed’s “False Statements About a For-Profit.”

July 10, 2012Peter Coffman authored “Pendulum Still Swinging on Consumer Arbitration Clauses” which was published in Thomson Reuters’ News & Insight.

July 10, 2012Michael Pryor’s article “Will the FCC Impose Fees on Smart Grid Connections?” ran in Electric Light & Power’s PowerGrid International.

9 NEWSMAKERS

HonoredJoyce Gwadz Receives 2012 Pro Bono Legal Service AwardJoyce Gwadz, a Dow Lohnes partner in the tax practice, was one of two recipients of this year’s Pro Bono Legal Service Awards for outstanding volunteer legal service to low-income individuals in the Washington region, sponsored by the John Carroll Society. Gwadz has been a regular supporter of the Legal Network, a program of Catholic Charities of the Archdiocese of Washington, as well as an active volunteer with the Advisory Council.

15 Dow Lohnes Attorneys Named Among Best Lawyers in America 2013Dow Lohnes congratulates the 15 members of the firm who were recognized in the 2013 edition of the Best Lawyers in America. According to Best Lawyers, the selections are based on over 4.3 million confidential evaluations provided by leading attorneys throughout the country – the most extensive legal peer-review process.  Dow Lohnes attorneys recognized and their corresponding categories are:  Jim Burger: Copyright Law, Technology Law  Peter Canfield: Bet-the-Company Litigation, Commercial Litigation, First Amendment Law, Litigation – First Amendment, Litigation – Intellectual Property, Media Law  Tom Clyde: Litigation – First Amendment  Peter Coffman: Commercial Litigation  Scott Dailard: Advertising Law  John Feore: Communications Law  Michael Goldstein: Education Law  Todd Gray: Communications Law, Media Law  Jon Hart: First Amendment Law, Information Technology Law, Media Law  John Logan: Communications Law  Kevin Reed: Communications Law  Michael Rothberg: Litigation – First Amendment, Media Law  Anne Swanson: Communications Law  Bruce Wieder: Copyright Law, Litigation – Intellectual Property, Litigation – Patent, Patent Law, Technology Law, Trademark Law  David Wittenstein: Communications Law, Technology Law 

Whitney Becomes Certified NFL Player AgentOn August 29, 2012, Jeff Whitney received his certification from the NFL and is now a certified NFL Player Agent. Congratulations Jeff!

10 ESQAKA

While free time can be hard to come by at law firms, Dow Lohnes has many attorneys who have found ways to fill their non-working hours with interesting and important past times. This column spotlights those attorneys and what they are Also Known As outside of their legal lives.

ESQ.AKA:

Music has been in Dow Lohnes Corporate partner Ed O’Connell’s blood as long as he can remember. Home movies show him glued to American Bandstand as an infant, and he’s been singing and playing guitar and piano most of his life. At Yale, he was a DJ at WYBC (coincidentally, a Dow Lohnes client and where Ed met his wife at a freshman orientation session), and after graduation he worked at WPLR in New Haven and WHCN in Hartford, before finally heading to law school. One might reasonably assume that law school would be the end of O’Connell’s musical ambitions. And although he did take a hiatus from performing when, as an associate, he would find himself rushing from the office to a gig, over the last decade O’Connell picked back up his guitar and dusted off his credentials as a Power Pop1 musician, playing gigs in local roadhouses and the occasional big stage, like the Strathmore Music Center and the Bull Pen at Nationals Park.

At first blush, it’s hard to discern the connection between being a transactional lawyer and a singer/songwriter. But O’Connell tells us that the skills he has acquired as an attorney were very helpful as he prepared his debut album - Our Little Secret - recorded during DC’s

1We had to Google it: Power Pop is a musical genre that draws inspiration primarily from 1960s British and American pop and rock musicians, including The Beatles, The Who, The Byrds, The Beach Boys, and The Kinks. It typically emphasizes relatively compact songs with strong melodic hooks and prominent guitar riffs.

11 ESQAKA

Ed O’ConnellPartner - Corporate Practice

EMAIL: eoconnell@dowlohnes.com

And there are other ties between O’Connell’s legal life at Dow Lohnes and his life, as he puts it wryly, as “an international pop superstar.” In 1982, when O’Connell was a summer associate at Dow Lohnes, he met Peter Gilstrap, who worked as a messenger in the firm’s mailroom and was a fellow music lover. Gilstrap eventually moved to Los Angeles to become a writer but he and O’Connell have remained friends, with Gilstrap co-writing (via email) five of the thirteen tracks on Our Little Secret. Their collaborations and O’Connell’s other songs have not gone unnoticed by music critics and power pop aficionados. Noted Huffington Post rock scribe David Wild reviewed the album, calling it a “sparkling debut

…whose grown up power pop work reminds me of the great Tom Petty, but has a stately

charm all its own.” And it wasn’t just music lovers in the United States who found the album

to be a promising debut. O’Connell’s songs received a good amount of radio play in Spain – a power pop hot spot

– and Ed heard from fans as far away as Japan, Scandinavia and Brazil. “The most rewarding part of doing the album was connecting with people all over the world who had somehow discovered the music. As a self-released CD, the record wasn’t initially on anyone’s radar and then, very quickly, once reviews started appearing in the blogosphere, it was being bootlegged on file-sharing sites from Seoul to Serbia. I knew I had arrived,” O’Connell jokes, “since, after all, bootlegging is the second sincerest form of flattery.” ...continued on page 28

Snowmageddon and released in 2010. The record resulted in multiple Wammie nominations (D.C.’s answer to the Grammys) in 2011, including best new artist, songwriter of the year, best pop rock record, best debut and best pop rock vocalist, as well as songwriting awards and inclusion on leading power pop websites as one of the year’s best releases. “Doing a deal and making an album actually have a lot in common,” O’Connell says. “They both are very process-oriented and require a great deal of planning, attention to detail and organization. As with a corporate transaction, when you record and promote an album, you have to coordinate a team of musicians and other professionals and navigate through a lot of moving parts and deadlines. Being a deal lawyer really helped in keeping to the schedule and executing the plans involved in creating a record.” He might be on to something: Francis Scott Key, writer of the Star-Spangled Banner, Italian tenor Andrea Bocelli, and Spanish crooner Julio Iglesias are all attorneys. O’Connell doesn’t think that’s unusual, pointing out that there are a lot of lawyers in Washington, D.C. who moonlight as musicians - including Dow Lohnes Communications partner Gary Lutzker, who plays guitar in local jazz bands.

Over the past few terms, a divided United States Supreme Court has barreled a path through state doctrines that would invalidate private arbitration clauses in favor of judicial class actions in consumer contract disputes, preempting state law that hinders federal policy favoring arbitration. Could the argument that mandatory arbitration prevents consumers from vindicating statutory rights stop the pro-arbitration train in its tracks?

The Supreme Court’s Pro-Arbitration TrendOver the past several years, bilateral arbitration clauses (clauses that require arbitration and waive class proceedings) have received a great deal of judicial attention. In fact, over the past two terms, the Supreme Court significantly strengthened the enforceability of private arbitration agreements in consumer and employee disputes. In 2010, the Supreme Court held in Stolt-Neilson S.A. v. AnimalFeeds International Corp. that a corporation could not be compelled to submit a dispute to class arbitration absent its consent in the arbitration agreement, despite perceived inefficiency and expense of requiring bilateral arbitration. Then, in Rent-A-Center, West, Inc. v. Jackson, the Supreme Court upheld an arbitration agreement in an employment contract that required the arbitrator to determine the enforceability of the agreement, despite the plaintiff’s challenge to the contract as a whole based on the parties’ unequal bargaining power. This year, in CompuCredit Corp. v. Greenwood, the Court upheld enforcement of an arbitration agreement containing a class waiver, where the claim arose under a federal statute that was silent as to the arbitrability of claims.

Most significant is the Supreme Court’s landmark 2011 decision, AT&T Mobility LLC v. Concepción, which solidified the Court’s pro-arbitration approach by rejecting the argument that a class waiver in a wireless telephone customer service contract’s arbitration provision was invalid as unconscionable because only a class action could vindicate small-value consumer claims. The Court held that the Federal Arbitration Act (“FAA”) preempted California state law that invalidated arbitration agreements containing class waivers in such cases, because that law stood as an obstacle to the FAA’s goal of giving effect to the terms of arbitration agreements.

The Court examined the ways in which class arbitration differed from bilateral arbitration, found the differences to be material and substantive, and held that parties had good reasons to decline to participate in class arbitration.

The Post-Concepción Arbitration LandscapeMany companies are wondering whether the dust has settled enough to redraft their arbitration agreements once and for all. The Supreme Court has certainly provided substantial comfort that courts will enforce private agreements to arbitrate. Nevertheless, consumers continue to challenge arbitration agreements in the commercial context on a number of grounds, some of which might find their way to the Supreme Court for another round.

First, plaintiffs have attempted to identify distinctions between the California law that the FAA preempted in Concepción and other state laws that would invalidate class action waivers in arbitration agreements. Several federal appellate courts have rejected this argument and applied Concepción to analogous state laws and doctrines, including the Eleventh Circuit in a recent case in which Dow Lohnes prevailed on behalf of a consumer service provider (see ‘A Win for Dow Lohnes’). This approach has had some minor successes, including in a Massachusetts trial court that distinguished the arbitration agreement in Concepción due to its “pro-consumer incentives,” and a North Carolina trial court that distinguished the characteristics of the arbitration proceedings at issue. On the whole, however, merely distinguishing Concepción has not proved fruitful.

Second, plaintiffs have attempted to avoid the Concepción decision by attacking arbitration agreements at the contract formation level. For example, the Missouri Supreme Court revoked an arbitration clause not because of a perceived defect in an agreement to arbitrate, but rather because the plaintiff “demonstrated unconscionability in the formation of the agreement” under state contract law principles. And the Kentucky Supreme Court recently held that Concepción “constrained” it to find a contract with an arbitration clause and class action waiver enforceable, but cautioned that an adhesion contract

Trouble Ahead, Trouble Behind: Has The Supreme Court Finally Cleared The Tracks for Mandatory Arbitration in Consumer Contracts?

BY: David Mills - Partner dmills@dowlohnes.com

Daniel Prichard - Senior Counsel dprichard@dowlohnes.com

Alyssa Saunders - Associate asaunders@dowlohnes.com

FEATURESTORY

12

with inadequate disclosure of these limitations would be procedurally unconscionable. Other courts have held that agreements containing arbitration provisions were unenforceable because they were illusory owing to provisions allowing the contracts to be changed without notice. One possible response is that where a plaintiff attacks the enforceability of a contract as a whole, the arbitrator rather than a court should consider the issue.

Third, Plaintiffs recently have embraced a strategy based on the Supreme Court’s 1985 decision in Mitsubishi Motors Corp. Although the Court upheld judicial enforcement of an international arbitration agreement governing a dispute arising under American antitrust law, it noted that “so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,” the antitrust statute would continue “to serve both its remedial and deterrent function.” Plaintiffs’ class action lawyers have used this language to argue that, if consumers can demonstrate that they cannot vindicate their statutory rights, an agreement to arbitrate should not be enforced. They argue that bilateral arbitration is prohibitively expensive for any individual consumer because the cost of pursuing an individual arbitration often exceeds the potential recovery in the arbitration, and only class proceedings (in court or in arbitration), which allow for shared costs, can effectively vindicate consumers’ statutory rights.

This “vindication of statutory rights” argument has gained traction in some courts. Prior to Concepción, the First Circuit applied this argument to bar arbitration in a federal antitrust case that also included state claims, finding that a class mechanism ban was prohibitively expensive and would deter the plaintiffs from pursuing recovery. After Concepción, the Second Circuit held in In re American Express Merchants’ Litigation (“AmEx III”) that an arbitration agreement containing a class waiver was not enforceable because a class action was the “only economically feasible means for plaintiffs” to enforce their federal statutory rights. And the Ninth Circuit just last month decided to rehear a case en banc in which a panel had reversed a trial court decision that arbitration prevented effective vindication of broad public rights. Some other courts appear receptive to the argument that prohibitive costs of bilateral arbitration might bar enforcement of an arbitration agreement, although the plaintiffs in those particular cases had marshaled insufficient evidence of costs.

However, there are a number of reasons why an attack on arbitration clauses under the Mitsubishi “vindication of statutory rights” theory is likely to fail. First, as the Ninth Circuit and other courts have held, whatever the scope of the doctrine, it applies only to federal statutory claims and does not reach state statutory claims. While some courts have declined (or failed) to address this

limitation, it seems compelling. While the FAA preempts state law that conflicts with congressional objectives, under the Mitsubishi argument, a court might find that competing congressional objectives underlying another federal statute would prevail over the objectives of the FAA. That cannot be true for state statutes.

Second, the Supreme Court has never applied the Mitsubishi argument to prohibit the enforcement of arbitration agreements requiring bilateral arbitration, and its recent decisions in Stolt-Nielsen and Concepción suggest it would be unwilling to do so. Given its skepticism about class arbitration, it would appear inconsistent for the Court to invalidate an arbitration agreement on federal law grounds because it does not provide for class arbitration.

Looking ForwardAll of these issues are before state and federal courts today, and we are likely to see a multiplicity of decisions and rationales in the coming months. American Express has petitioned the Supreme Court to grant certiorari of AmEx III, which has already visited the Supreme Court and squarely raises Mitsubishi as a basis to invalidate a mandatory arbitration agreement. This case would give the Court the opportunity to define the contours ...continued on page 28

A Win For Dow LohnesDow Lohnes Litigation attorneys David Mills and Daniel Prichard recently prevailed in an Eleventh Circuit case affirming a trial court’s decision to compel arbitration of a customer claim in accordance with the terms of his service contract. See Pendergast v. Sprint Nextel Corp., 691 F.3d 1224 (11th Cir. 2012). The hard-fought decision came after the case had bounced from the Eleventh Circuit to the Florida Supreme Court on certified questions concerning the enforceability of class waivers, and back to the Eleventh Circuit when the Florida Supreme Court declined jurisdiction on Sprint’s motion following the Supreme Court’s Concepción ruling. In a straightforward application of Concepción and its progeny, the Eleventh Circuit accepted Dow Lohnes’ argument that, even if Florida state law might render class waiver provisions unenforceable, the Federal Arbitration Act preempted any state law that would do so. However, in earlier certifying questions to the Florida Supreme Court, the Eleventh Circuit had found it would be difficult to hold the arbitration agreement substantively unconscionable because of the multiple avenues it provided consumers to resolve their claims.

FEATURESTORY

13

14 ATTORNEYRETREAT

2012ATTORNEY RETREAT

In a firm with a history that spans nearly a century and with partners whose tenures average 20+ years, we think Dow Lohnes has a culture that makes it a very special place to work. And since the majority of our day-to-day focus is placed squarely on providing the best legal service to our clients, we were excited to spend the first weekend of October getting all of the firm’s attorneys together outside of the office for some strategic planning…and a little bit of fun. 

The fresh air of the Chesapeake Bay in Cambridge, MD, provided a perfect backdrop for Dow Lohnes attorneys to connect with one another and discuss trends in the legal market, the goals of the firm and to engage in some friendly competition. Since the photos from our business meetings are top secret (ok, not really, they’re just boring!), we bring to you some highlights of the Dow Lohnes 2012 All Attorney Retreat.

1. The Green Team – aka Dow Lohnes General Counsel Mary Qualiana, Jason Rademacher, Nadia Mozaffar, Fred Beerman and Stacy Carroll – checking off a scavenger hunt item.

2. The Light Blue Team borrows a golf cart to help expedite their hunting. Back (l to r) Matt Parrish, Jim Burger/Diane Hantz, Jay Vaughan, Judy Mather.

3. The Yellow Team dons its rally caps (perhaps paying homage to all of the Dow Lohnes home teams - the Braves, Nationals AND Orioles – that made the play-offs). Michael Hepburn, Claire Werner, David Mills, Jeff Hunter, Adisa Bakari and Marc Rivera.

4. The Tan Team is all smiles, perhaps indicating they knew then that they were on their way to becoming the 2012 Scavenger Hunt Champions. Jason McCarter, Robert Brown, JD Shipman, Stephanie Loughlin, Kristin Leavy.

5. Rob Folliard, Matt Johnson, Managing Partner John Byrnes, Larry Humphreys and Camille Ward are pleased to find the refueling station at the marina before the storm clouds roll over.

6. With the movie Wedding Crashers filmed just miles away from our retreat, it was only fitting the Navy Team crashed a wedding. Lori Beth Ouzts, Paul Thompson, Michael Hayes, Corinne Antley and Brad Christmas.

1 2 3

54 6

15 ATTORNEYRETREAT

7. The White Team – Michael Basile, Michael Goldstein, Katie Blaszak, Norm Lent, and Joe Craven – find the portraits of firm founders Dow, Lohnes & Albertson, who made a special appearance at the retreat.

8. Contestants faced off in a special edition of Dow Lohnes Family Feud. The Winning Team captured the title by winning the round with the survey board asking which attorney best embodies the spirit of the firm.

9. Dow Lohnes Government Strategies CEO Stephen Sayle, Communications Partner John Feore, Managing Partner John Byrnes, Litigation Partner David Mills and Communications Partner Michael Basile.

10. Firm Chairman Len Baxt and Communications Partner David Wittenstein enjoy the outdoor welcome dinner.11. Atlanta Partners Matt Block and Randy Smith catch up with Managing Partner John Byrnes.12. Education Practice Chair Michael Goldstein shows off his expert S’mores making abilities.13. Corporate Associate Marc Samuel and Litigation Senior Counsel Parker Erkmann face off in the Sip & Swing Mini-Golf Tournament.14. Dow Lohnes’ Team Blonde relaxes after the Scavenger Hunt: Lori Beth Ouzts, Kristin Leavy, Erin Dwyer, Emily Luke, and Katy

McConnell.

7

8

9

10

11

12

13

14

16 INTHECOMMUNITY

Supporting our Communities

The f irm was pleased to sponsor:Pillars of Justice Awards Reception at the Newseum Dow Lohnes is pleased to sponsor the Pillars of Justice Awards Reception at the Newseum in Washington, DC on October 24. The Awards are sponsored by Appleseed, a nonprofit network of 17 public interest justice centers in the U.S. and Mexico dedicated to building a society in which opportunities are genuine, access to the law is universal and equal, and government advances the public interest.

Powerbrokers Breakfast hosted by Women in Cable Telecommunications Honoring its outstanding members, Dow Lohnes was pleased to sponsor the Powerbrokers Breakfast hosted by Women in Cable Telecommunications on October 19. The event celebrates women who embody the group’s Touchstones of Leadership in areas including public service, communications, emerging leadership, inspiration and fearlessness.

JetBlue2012 Swing for Good Golf ClassicOn October 9, the fourth JetBlue 2012 Swing For Good Golf Classic took place at Bethpage State Park in New York. The event provided a great mix of fun, camaraderie and competition while simultaneously raising over $800,000 since 2009 for KaBOOM! and PBS KIDS. KaBOOM, is a national non-profit dedicated to saving play for American’s children by creating play spaces in communities, and PBS KIDS, is the number one educational media provider for kids. Dow Lohnes was delighted to sponsor and participate in this event again this year.

The AT&T Nation’s Football Classic Dow Lohnes was proud to serve as the official law firm for the second annual AT&T Nation’s Football Classic (NFC) on September 1. Held at RFK Stadium in Washington, DC, the game featured a win by local university Howard, over Morehouse College, 30-29. The NFC is an annual black college football game created to celebrate the passion and tradition of the college football experience, recognize the history of service to others by the students, faculty and alumni of historically black colleges and universities, highlight the unity of African American culture, and honor the heritage and excellence of these proud institutions.

AARP Legal Counsel for the Elderly (LCE)Dow Lohnes is a proud supporter of AARP Legal Counsel for the Elderly (LCE). For 35 years, LCE has championed the dignity and rights of Washington, DC’s elderly by providing free legal social work services to those in need.

Kevin Mills & David Mills hit the greens at the JetBlue 2012

Swing for Good Golf Classic.

17 INTHECOMMUNITY

Dow Lohnes kicked off its 2012 Generous Associates Campaign for the Legal Aid Society of D.C. on June 7th with a hugely successful

Battle of the Bartenders event. Dow Lohnes partners John Byrnes (Managing

Partner), Linda Fritts (Tax), David Mills (Litigation), Ed O’Connell (Corporate), Paul Lang (Labor & Employment), Ken Salomon (Government), Anne Swanson (Communications), Jay Vaughan (Education) and Sue Underwald (Media & Information Technology) represented

their respective practice groups as master mixologists.

The competition and the drinks were stiff, but Higher Education partner Jay Vaughan’s “Mitigating

Margarita” received the most votes (i.e., tips!). We’re not sure if Jay’s former days as a

bartender gave him an unfair advantage but, either way, we think all of our bartenders were winners and the biggest winner of all was the Legal Aid Society that depends on the campaign to raise 20-25% of its operating budget for the year. Legal Aid provides legal services to individuals, families and communities

who could not otherwise afford to hire a lawyer.

In addition to the nearly $3000 in cash and pledges Dow Lohnes raised through Battle of the

Bartenders, the Dow Lohnes attorneys and the firm’s matching contribution resulted in over $23,000 in donations to the campaign making Dow Lohnes the second highest fundraiser in D.C. for firms our size. Total donations to the 2012 Generous Associate Campaign reached nearly $900,000 – over $100,000 more than Legal Aid’s record breaking campaign the previous year.

Congratulations to the Legal Aid Society on an outstanding campaign and on its exceptional service providing meaningful

access to justice for members of our community who otherwise would not be able to afford it.

2012 Generous Associates Campaign for the Legal Aid Society of D.C

Photos (top to bottom): Gerry Muir - Generous Associates campaign coordinator and EDU associate; Sue Underwald - Media & Information Technology partner; David Mills - Litigation partner; John Byrnes - Managing Partner; Joyce Gwadz - Tax partner and a member of Legal Aid’s Board of Trustees.

18 SPORTS&ENTERTAINMENT

On July 12, Dow Lohnes Sports & Entertainment (DLSE) kicked-off a three day retreat for its NFL client roster. The goal of the retreat was to provide the players with programming focused on how to succeed as players and as businessmen, and included a tour of the White House, a meeting with the head of the NFL Players Association (NFLPA), and presentations on the use of social media, financial fraud, endorsements and interaction with the media. “We want our clients to learn what it means to be a professional and to reaffirm what we tell them in the very beginning of the recruiting process, that they’re no different than corporate executives,” stated DLSE President, Adisa Bakari. “The fact that they play football does not make them less of a business person than a traditional executive.”

NFLPA Executive Director DeMaurice Smith welcomed the group to the NFLPA’s headquarters for a breakfast and discussion centered on the business of football. In addition to Smith, NFLPA’s George Atallah, Jason Belser and Tim Christine spoke to the group about a range of subjects from finance and personal safety to the multitude of benefits available to current and retired NFL players. The day continued with panel discussions including Athletes and the Media, featuring Sports

SPORTS & ENTERTAINMENT

NFLRETREAT

DLSE President, Adisa Bakari (l), and Justin Durant (r) of the Detroit Lions, listen in during the player panel.

The players head off for dinner & social media training.

“The fact that they play football does

not make them less of a business person

than a traditional executive.”

19 SPORTS&ENTERTAINMENT

Pictured Above:Front Row (l to r): Chris Carter (Steelers), Evan Royster (Redskins), Marcus Harris (Lions), Dominque Davis (Falcons), Ron Leary (Cowboys), Marvin McNutt, (Eagles) Don Carey (Jaguars), Lawrence Wilson (Saints), Jonathan Dwyer (Steelers)

Back Row (l to r): Pat Ramey (DLSE Executive Assistant), Maurice Jones-Drew (Jaguars), Davin Meggett (Texans), Antoine Bethea (Colts), Justin Durant (Lions), Kendall Langford (Rams), Adisa Bakari (DLSE President), Justin Hickman (Colts), Matt Forte (Bears), Jeff Whitney (DLSE Vice President), Jaiquawn Jarrett (free agent), David Carter (Cardinals), Josh Barrett (Patriots), Tyrod Taylor (Ravens), Keith Tandy (Buccaneers), Katrina Leonce (DLSE VP PR & Marketing), Andrea Williams (DLSE PR Coordinator)

Illustrated’s Jim Trotter, NFL Network’s Steve Wyche and ESPN’s Adam Schefter. The panelists gave players rare insight into the media’s relationship with athletes, from the writers’ and reporters’ perspective. SI’s Trotter was so impressed with the retreat that he highlighted the event in his Inside the NFL column. The retreat wrapped up with a panel featuring veteran players, Maurice Jones-Drew, Antoine Bethea, Matt Forte, Kendall Langford, Justin Durant and Josh Barrett. The purpose was to have a very candid discussion between the experienced players and the younger players with special emphasis geared toward the rookies. Players discussed common mistakes, fame, contracts and their fitness routines among other topics.

The players head off for dinner & social media training. Sports Illustrated’s Jim Trotter (l) and ESPN’s Adam Schefter (r) speak to the players.

20 BAXTANNIVERSARY

LEN BAXTC ongratulations on 40 years with Dow Lohnes! On September 6, Dow Lohnes feted the 40th anniversary of our Chairman Len Baxt. Since we knew Len wouldn’t want us to make a big deal of it, we had to use a little bit of trickery to get him to the party, claiming he was needed for an important client meeting. We even got Len’s wife, Joy, in on the act to help us convince him to skip a dinner with one of the SCOTUS justices in Michigan that same day.

In addition to the many Dow Lohnes attorneys who were on hand to wish Len well, Washington Jesuit Academy president Bill Whitaker and director of development Merry Cavanaugh and USO Metro DC president Elaine Rogers came to salute Len, who has been very active in volunteering and fundraising for both organizations.

While many of us at the firm can’t imagine a time when Len was anything other than our esteemed and distinguished Chairman, Communications Partner John Feore tells us that his favorite memory of Len is from when John came to interview with the firm in 1973 and asked for Mr. Baxt, whose name was on the letterhead and he was slated to meet with. “Out came this kid who looked like he was 16, with long, curly hair that was all over the place. It was my first interaction with a live person at Dow Lohnes, and I was thinking, who is this guy!?!”

John also recalls, with a twinkle in his eyes, the years he and Len would dress up as Santa and his elf at the old Broadcasters Club and for the firm holiday party. Unfortunately, he wouldn’t provide us with any photo documentation of those appearances and since it was pre-internet, we haven’t been able to use e-discovery. But we’re going to keep looking!

Photos courtesy of Legal Bisnow (l to r): 1. Dow Lohnes partners David Mills and Michael Basile, USO Metro DC president Elaine Rogers, and Dow Lohnes partner John Feore. Len is on the USO board of directors. 2. Scott Dailard didn’t mind playing the role of the bait – he made sure Len attended the “very important client meeting”. 3. Washington Jesuit Academy’s Bill Whitaker and Merry Cavanaugh with Dow Lohnes COO, Brad Christmas. 4. Dow Lohnes Sports & Entertainment VP Jeff Whitney and President Adisa Bakari. 5. Dig in! Len cuts the cake that bears his likeness! 6. Partners Linda Fritts and Michael Hepburn enjoy the party. Far right: Dow Lohnes Managing Partner, John Byrnes, congratulates Len.

BAXTANNIVERSARY

21

22 ATTORNEYSPOTLIGHT

After serving as a Summer Associate at Dow Lohnes in 1998, Shannan Higgins joined the firm’s Media and Information Technology (MIT) practice as an Associate the following year. But after six years at Dow Lohnes, Shannan left the firm to join fellow Dow Lohnes alum Elizabeth McFadden at the U.S. Department of Education. Recently however, Shannan decided to return to her roots and rejoined Dow Lohnes as Counsel in the MIT group this August. We caught up with her to find out what it’s like to be back at the firm after almost a decade away. Thomas Wolfe famously wrote that You Can’t Go Home Again. But decades later, Bon Jovi questioned the premise in his hit song Who Says You Can’t Go Home. Shannan Higgins falls squarely in the Bon Jovi camp finding that you can, in fact, go home to Dow Lohnes. “It’s been incredibly meaningful to come back and have so many people – from administrative staff to attorneys in other groups I hadn’t worked with much – welcome me in ways that demonstrate they are genuinely happy to have me back. It feels like coming home. It feels right.” After her initial stint at Dow Lohnes from 1999-2004, Shannan spent eight years at the Department of Education where she served as Deputy Assistant General Counsel for the Division of Regulatory Services. In this capacity, Shannan helped lead the development and clearance of the Department’s regulations and other documents published in the Federal Register, gave legal advice on rulemaking law, drafted regulations, and participated in government-wide and Department-wide regulatory groups. “It was challenging work for a number of reasons, not the least of which was because of where we sat in the development and clearance process

for regulatory documents. By the time a regulatory document or grant announcement got to our division, the policy and program folks responsible for developing the document had already spent a tremendous amount of time and effort on it and often hoped that they were ‘almost done’. Not only would staff have a lot invested in the documents they worked on, but they were usually up against a statutory deadline to get the documents published. Given all this pressure, there was often resistance to making changes to documents,” Higgins says. “So one of the things I enjoyed most in my role was helping to make the clearance process meaningful and as least burdensome as possible. To do this, it was very important to build relationships with people across the Department, so that even when the pressure was on, we could work together to get the best document published in the most timely and efficient manner. Ultimately, my goal was to do my part to have a final product that was legally supportable, easy to understand and consistent with the mission and message of the Department.” And it was relationships that ultimately brought Shannan back to Dow Lohnes. Not only has she enjoyed working with many of the attorneys she previously worked with, but she notes that many of the Dow Lohnes clients she worked with are still clients of the firm and she’s enjoyed getting to work with them again. “It’s been really interesting to think about issues I haven’t thought about in eight years and experiencing the feeling of recall. It’s like I have a filing cabinet in the back of my brain, and little by little I’m pulling out these old files that are still there and dusting them off. It’s been really fun!”

ATTORNEY SP TLIGHTSHANNAN HIGGINS

• The best decision Shannan ever made was to have children. Her daughter, Ariana, is six and her son, Aidan, is 9.

• Shannan just completed yoga teacher training to help her better understand the philosophy behind the practice and proper alignment of poses.

• One of her favorite responsibilities at the Department was working with a little known department within Ed – the National Institute on Disability and Rehabilitation Research (NIDRR) – whose work supports applied research, training and development to improve the lives of individuals with disabilities.

• Shannan enjoys growing orchids, but leaves the rest of the gardening to her husband, who she met while enrolled in Georgetown University Law Center.

Four Fast Facts

Counsel - Media and Information Technologies EMAIL: shiggins@dowlohnes.com

DOW LOHNES

AROUND TOWNOCTOBER 17, 2012Jim Burger moderated the Over the Top Platforms - TV, iPad - Tablet - SmartPhone - PC - Connecting into the Future panel at the Digital Hollywood Fall Conference.

OCTOBER 10, 2012Jay Vaughan presented at the California Association of Postsecondary Private Schools 28th Annual Conference at a session entitled Tilting the Triad – The Program Integrity Rules and the Impact on Accreditation. Dow Lohnes was also a sponsor of the event.

SEPTEMBER 14, 2012

Christy Burrow & Peter Canfield presented at the 2012 Media Law Conference. Burrow presented during the session entitled The Future of Political Advertising: Citizens United and Beyond and Canfield facilitated during the breakout session on defamation.

SEPTEMBER 13, 2012

Dow Lohnes was pleased to sponsor the Public Knowledge 9th Annual IP3 Awards. The IP3 awards are given to individuals who have promoted the public interest in the three areas of “IP” in which Public Knowledge works: intellectual property, internet protocol, and information policy.

AUGUST 9, 2012

Jeannie Yockey-Fine was a panelist at the Distance Teaching & Learning Annual Conference forum entitled Managing State Authorization Requirements.

JULY 26, 2012

Jeannie Yockey-Fine conducted a “State Authorization Boot Camp” at the Florida Association of Postsecondary Schools & Colleges (FAPSC) Annual Conference.

JULY 26, 2012

Michael Goldstein, Jonathon Glass and Greg Ferenbach spoke on panels at the Capital Roundtable Conference - Private Equity Investing In For-Profit Education Companies in New York City. Dow Lohnes was proud to co-host the event with the Parthenon Group.

JULY 25, 2012

Christy Burrow & Derek Teslik presented a webinar for Television Broadcasters entitled New Rules for Online Public Inspection Files.

JULY 22, 2012Dow Lohnes Higher Educationwere out in force at the National Association of Student Financial Aid Administrators (NASFAA) National Conference. Blain Butner presented on a panel entitled Program Reviews: Maximizing Your Ability to Minimize Your Liabilities, while Gerry Muir and Marjorie Arrington presented during the session entitled From Presence to Participation: Navigating the Department of Education’s New Online Attendance Standard.

AROUNDTOWN

23

Dow Lohnes Partners Serve on Faculty of Law School for Digital Journalists

On September 20, Dow Lohnes partners Jonathan Hart, Corinne Antley, and Scott Dailard served as faculty at the 2012 Online News Association’s Law School for Digital Journalists. The program was presented in conjunction with the Stanford Law School Center for Internet and Society and the U.C. Berkeley Graduate School of Journalism and had classes covering the full range of legal issues that impact the professional lives of digital journalists.

Hart, who served as co-director of the program, also taught a class on copyright while Dailard joined forces with Deirdre Sullivan, Senior Counsel of The New York Times to teach a class on running a digital news business. Antley served as faculty for a class on launching a digital news business, with co-panelist Neil Budde, the founder of WSJ.com and CEO of the Philadelphia Public Interest Information Network.

Peter Coffman looks like a pro, hitting the

water on Lake Burton in northeast Georgia.

Mary Qualiana and her son, Eli, spent time

admiring the beauty of Montreux, Switzerland.

Tom Clyde and his family explored the highest highs and lowest lows in Hawaii this summer. Tom and his kids braved the chill atop Mauna Kea volcano...

Ever wanted to tell your attorney to go fly a

kite…while in Cape May, NJ, J.G. Harrington

did just that.

DOW LOHNESSummer Vacations

...and Tom made a new friend while scuba diving!

SUMMERVACATIONS

24

Jason McCarter and his wife, Tiffany, journeyed to Italy where they visited the Coliseum and also spent time in Rome, Florence and Stresa on Lake Maggiore.

David Wittenstein and his wife, Lee, traveled to Maine’s Mt. Battie and Jordan Pond in the Acadia National Park.

JD Shipman fed the local wildlife while hiking at

Zion National Park in Utah.

While newborns aren’t exactly a vacation,

how could we resist including this cutie! Katie

Wendel, an Associate in our Education Practice,

welcomed Nora Jayne on July 9 – congrats Katie!

Kevin Mills, his wife and DL alum, Franny

Peale, and their kids enjoy ice cream and a

sunset at Niagara-on-the-Lake, Ontario.

SUMMERVACATIONS

25

Judy Mather and her son, Mike, at a champagne

tasting at Domaine in Haute Villiers in France.

DOW LOHNES

NEW HIRES

Matt Rizzolojoined the Litigation group on September 4th as a Litigation Associate with a specific focus on patent litigation. Matt is a 2008 graduate of George Washington University Law School and earned his undergraduate degree in Interdisciplinary Engineering and Management from Clarkson University in 2003. Matt has worked extensively with technology and telecommunications companies to both enforce clients’ intellectual property rights and defend clients from patent infringement claims. Prior to joining Dow Lohnes, Matt practiced for several years as an associate with Ropes & Gray in DC where he gained experience in all facets of complex patent litigation. Prior to law school, Matt worked in various technical and engineering positions for Cooper Industries, an electrical products manufacturer, as part of Cooper’s Operations Leadership Program.

WELCOME TO THE

Rebecca Givner-Forbesjoined the Media & Information Technologies practice group on September 5th. Rebecca graduated from the Georgetown University Law Center in May and took the Virginia Bar examination at the end of July. Rebecca was a summer associate with the firm in 2011 and worked with us during her last year of law school as a Law Clerk. Rebecca earned a Master of Science in Strategic Studies in 2009 from Nanyang Technological University, Rajaratnam School of International Studies in Singapore and Bachelor of Science from Georgetown in 2004. Previously, Rebecca worked for seven years as a counterterrorism analyst, focusing on analyzing and countering terrorist activities online.

TEAM

26 NEWHIRES

Marion Cooper Kennedyjoined Dow Lohnes on August 13th as a Risk Management Attorney. In this role, she will focus on firm-wide conflicts, professional responsibility, litigation supervision, and general risk management. Prior to joining the firm, Marion was an attorney with Hunton & Williams in Richmond working in a similar capacity for over six years. Previously, she held positions with the Virginia Department of Professional and Occupational Regulation, the Office of the Attorney General for the Commonwealth of Virginia (Opinions Section and Finance Section), and the Virginia Department of the Lottery. Marion is a 1981 graduate of T.C. Williams School of Law at the University of Richmond.

Nadia Mozaffar began her legal career with the Higher Education practice group on August 27th. Nadia graduated from Vanderbilt Law School in May and took the Maryland Bar examination in July. Nadia was a summer associate with Dow Lohnes in 2011. In 2010, Nadia worked as a legal clerk for the Office of the General Counsel, Tennessee Board of Regents and as a legal clerk for the Disability Law and Advocacy Center of Tennessee.

Liz Thomsenjoined Dow Lohnes on July 16th as an Associate with the Media & Information Technologies practice group. Liz graduated from Duke University School of Law in 2009 and earned a Bachelor of Science from Cornell in 2006. Before joining Dow Lohnes, Liz was an Associate with Dewey & LeBoeuf’s Intellectual Property and Technology Transactions Group in New York. Liz also worked as a Law Clerk for Jazz at the Lincoln Center, Inc. in 2009 and for Paramount Pictures in 2007, and in 2005, she interned for MTV Networks.

Meredith O’Learyjoined Dow Lohnes on September 17th as Senior Counsel with our Labor & Employment practice group. Meredith specializes in employee benefits and executive compensation matters, namely in connection with corporate transactions and plan design, qualification, compliance, termination, and correctional matters. Meredith is a 2004 graduate of Cornell Law School and a 2000 graduate of the University of Pennsylvania. Meredith started her legal career with Latham & Watkins in New York and also worked with Holland & Knight in Miami before moving back to the DC area in September.

NEWHIRES

27

28 CLIENT NEWS & WRAP UP

Continued from page 7 - ESQ. AKA: With his encyclopedic knowledge of pop music, we were curious who his primary musical influences were. “All roads lead to The Beatles,” he says. “But I also like The Who, The Kinks, the Beach Boys and Elvis Costello.” And his favorite show out of the hundreds of concerts he’s seen over the last few decades? “It was August 17, 1975 – the final night of Bruce Springsteen’s epic, career-making stand at the Bottom Line in New York. He was just exploding onto the national music scene with the release of “Born To Run,” and it was an unforgettable performance.” Nils Lofgren (who would later go on to play in Springsteen’s E Street Band and with whom O’Connell subsequently once jammed in a Bethesda basement) was sitting at Ed’s table, directly across from him. “After just a few songs, he mysteriously got up and abruptly left. It wasn’t until reading an interview many years later that I learned Nils was to be the next performer at the Bottom Line. After seeing Springsteen perform a few songs, the thought of having to play next at the venue was so daunting, he had to leave and rethink his approach to performance.” We wondered if the prospect of a putting an album out for all the world to review was daunting to O’Connell. “Music is a very personal thing, so you put it out there with a lot of trepidation. You never know how people will respond, but I was terribly lucky in that my record struck a chord with fickle tastemakers who received it warmly. It was very gratifying.” So does that mean that power pop fans should be expecting a sophomore album from O’Connell? “It’s in the works – which means you can expect a snowy winter,” he says.

Continued from page 17 - Trouble Ahead, Trouble Behindof Mitsubishi this term and is worth watching along with others bubbling up to various state and federal appellate courts. Congress could also reverse the Supreme Court’s pro-arbitration jurisprudence by passing legislation to curtail the Court’s broad interpretation of the FAA. Several bills were introduced post-Concepción but stalled in committees. One possible outcome of these developments is that Congress would use the Mitsubishi rationale to insert into new statutes clear statements of intent to grant class action rights or to prohibit mandatory arbitration in certain cases. The Consumer Financial Protection Bureau (“CFPB”) also could weigh in pursuant to its authority under the Dodd-Frank Act to restrict the use of mandatory pre-dispute arbitration agreements in certain cases, following a public inquiry on arbitration that the CFPB launched in the spring of 2012. The Court’s interpretation of the FAA and corresponding support of agreements to forgo the courthouse for a private arbitral forum seem unwavering. Nevertheless, plaintiffs have been persistent and creative in attacking arbitration agreements, and it seems likely that we have not yet reached the last stop on the line.

HATS OFFCox Communications for landing the top spot in J.D. Power and Associates’ annual residential telephone satisfaction survey. The survey measured different attitudes toward residential telephone local and long-distance service that included performance, cost, billing, offers and customer service.

DeVry University: Professor Abhay Ghiara was selected as a Fulbright-Nehru Senior Research Scholar. Ghiara joins a distinguished group of grantees that includes heads of state, CEOs and university presidents, as well as 43 Nobel Prize recipients.

Gannett::Barbara Wall, vice president and senior associate general counsel, was among the First Amendment Awards winners honored by the Reporters Committee for Freedom of the Press.

JetBlue for being named the Official Domestic Airline Partner of the USC Trojans.

Matt Forte: The NFL Pro Bowl running back signed a four-year contract with the Chicago Bears valued at approximately $32 million dollars ($18.1 million guaranteed).

Maurice Jones-Drew for being selected by ESPN the Magazine to appear in the renowned, Body Issue. The highly anticipated annual feature celebrates the physiques of the best athletes in the world.

USA TODAY on its 30th anniversary. The Nation’s Newspaper first was published on Sept. 15, 1982, in the Washington, D.C., market.