Venable LLP - Notable Transactions and Representations

Notable Transactions and Representations

• Secured a precedent-setting victory on behalf of nearly 5,000 abused and neglected children in a nearly three decade-long case involving the long-troubled Baltimore, Maryland foster care system. The defendants in the case, both Maryland state agencies, had argued that, as a result of a 2009 Supreme Court decision, foster care children had no rights to enforce federal child welfare laws. In the first ruling by an appellate court on this issue, Circuit Judge Allyson K. Duncan disagreed and found that the state agencies were misinterpreting the Supreme Court decision. Judge Duncan's decision ensures that federal child welfare laws will be enforced in the state of Maryland, meaning that a Baltimore federal court will be allowed to enter a decree negotiated between Venable's attorneys and two Maryland state agencies to compel needed reforms to the foster care system. As a result of the decision, Maryland must comply with 28 separate outcomes for the foster children, which are measured by over 100 performance measures.

• On behalf of Hornbeck Offshore Services, helped secure a series of victories rebuffing the government's efforts to implement a moratorium on offshore drilling in the Gulf of Mexico in 2010 in response to the Deepwater Horizon explosion. Venable obtained a preliminary injunction against the moratorium in the U.S. District Court of the Eastern District of Louisiana on June 22, 2010, when U.S. District Judge Martin Feldman found that the moratorium had been rashly implemented and would irreparably harm Hornbeck and other plaintiffs whose businesses were dependant on deepwater drilling. The decision was upheld by the Fifth Circuit Court of Appeals on July 9, 2010, which found that Secretary of the Interior Ken Salazar had "failed to demonstrate a likelihood of irreparable injury if the stay is not granted; he has made no showing that there is any likelihood that drilling activities will be resumed pending appeal." The Obama Administration subsequently sought to dismiss the lawsuit filed by Hornbeck and other plaintiffs, arguing that a second moratorium implemented by the Administration in July superseded the original moratorium, and thus the lawsuit challenging the original moratorium was moot. U.S. District Court Judge Martin Feldman denied the Administration's request, finding that "in reality, the new moratorium covers precisely the same rigs and precisely the same deepwater drilling in the Gulf of Mexico as did the first moratorium."

• Secured a jury verdict in excess of $36 million on behalf of The Penrose Group for breach of contract claims arising out of the development of a two-tower, high-rise luxury apartment complex in Bethesda, Maryland. The case was noted by the Maryland Daily Record as the largest verdict within the state of Maryland during 2010.

• Won a unanimous Supreme Court decision on behalf of Wal-Mart Stores in a case that had significant intellectual property ramifications. In the case, a jury found that Wal-Mart had infringed Samara's copyrights and "inherently distinctive" designs for a product line of children's clothing. The Second Circuit Court of Appeals upheld the jury's verdict on appeal, relying not upon any "factors" or "tests," but rather upon the testimony of a Samara executive who claimed that the consistent design elements were "inherently distinctive" because Samara intended for them to be identified with the company and build brand loyalty. The Supreme Court overturned the Second Circuit's decision, and in doing so further established the circumstances under which a design is protectable under the Lanham Act. The Court found that product design and product color, by themselves, are insufficient attributes for meeting the threshold of being "inherently distinctive." As a result of this decision, in order to gain trademark protection for a product design, the manufacturer must prove that consumers believe that the look of a product automatically identifies its creator.

• Secured a reversal of a lower court ruling in the case of Lockshin v. Semsker. In this particular case, a jury had awarded the plaintiffs over $5.8 million in damages, including $3 million in noneconomic damages, in a medical-malpractice case. The defendants, a group of doctors, asked the trial court to apply Maryland's long-standing statutory cap on noneconomic damages, which would limit those damages to $812,500. The trial court, however, ruled in favor of the plaintiffs. Venable, representing the doctors on appeal, argued that the trial court had misread Maryland's Health Care Malpractice Claims statute. Maryland's highest court agreed, holding that the cap on noneconomic damages applied to all health care malpractice claims, whether or not arbitrated.

• Represented Perot Systems in its $250 million acquisition of the QSS Group in 2007.

• Currently representing Redwood Capital in its proposed acquisition of bankrupt Erickson Retirement Communities. Venable client Redwood Capital Investments, LLC received broad media coverage when it announced that it had signed an agreement to acquire substantially all the assets of Erickson Retirement Communities, LLC, which filed for Chapter 11 bankruptcy.

• Represented CWCapital Asset Management in litigation related to the foreclosure of the Stuyvesant Town – Peter Cooper Village in New York City. After months of litigation, the case was resolved when junior debt holders Pershing Square Capital Management LP and Winthrop Realty Trust agreed to sell their debt to CWCapital for $45 million. The deal gave CWCapital additional options to recoup the $3.7 billion it was owed on the property.

• Represented Tishman Speyer in its $22.2 billion acquisition and subsequent privatization of real estate investment trust Archstone-Smith Trust.

• Closed a $40 million stock-for-stock acquisition by SafeNet, Inc. (SFNT) of Cylink Corporation (CLYK).

• On behalf of American Mensa, settled a trademark dispute with Carlton Publishing over the use of the Mensa trademark which provided American Mensa with monetary compensation as well as control over the quality of all books associated with the “MENSA” name distributed in the United States.

• Represented Modern Woodmen of America, one of the largest fraternal life insurance societies in the United States, in chartering MWABank.

• Represented Perdue Farms, Inc. in successfully dismissing a class action lawsuit for failure to plead with sufficient specificity.

• Venable Partner and former U.S. Attorney General Benjamin R. Civiletti served as Special Compliance Counsel and successfully negotiated settlement for Publishers Clearing House with 26 state Attorneys General.

• Drafted Self-Regulatory Principles for Online Behavioral Advertising, and currently serves as counsel to coalition of marketing and trade associations.

• Represented Boat America Corporation (BoatU.S.) in the sale of its retail boating equipment division to West Marine Products, Inc. for $72 million.

• Represented the State of Utah in its settlement with the Sierra Club and other environmental groups for the construction of the Legacy Parkway in northern Utah.

• Represented SafeNet, Inc. (SFNT) in a closed public offering of its shares for approximately $84 million.

• Represented Mercantile Bankshares Corporation in Mercantile's $543.4 million acquisition of Frederick-based F&M Bancorp and its principal banking subsidiary Farmers & Mechanics Bank.

• Represented the plaintiffs in a case involving e-discovery that has resulted in at least one controversial ruling, Mt. Hawley Ins. Co. v. Felman Production, Inc. In response to a production request, the plaintiffs produced 346 gigabytes of data; the defendants argued that approximately 30% of this production was irrelevant; however, subsequent analysis showed the actual irrelevant amount to be closer to 4%. The production also included 377 documents that, largely due to a technical glitch caused by a third-party vendor's software, should have been withheld as privileged (an error rate of 0.0006%). Among those documents was an email message that was used by the defendants to move to amend their complaint to add a fraud claim, despite the fact that the email noted that a Venable attorney was advising against a potentially fraudulent course of action. Federal magistrate judge Mary E. Stanley ruled that in spite of the technical glitch, the plaintiff's claims to privilege had been waived. Following a thorough analysis of the findings of fact in the case, noted e-discovery practitioner, author and educator Ralph Losey called Judge Stanley's decision "bad and ugly."

• Obtained approximately $800 million in relief from labor and long-term pension and health care obligations on behalf of former coal producer Horizon Natural Resources Co., which paved the way for the sale of $786 million of Horizon's assets to an investment consortium led by Wilbur Ross Holdings.

• Represented Anteon International Corporation (NYSE: ANT) in its acquisition of Milestone Group, LLC, a privately held provider of IT services to U.S. government clients.

• Represented Science Applications International Corporation (SAIC) in its acquisition of substantially all the assets of iMAPS, LLC.

• Represented Ecolochem, Inc. in patent litigation against Southern California Edison for patent infringement in field of water purification.

• Represented former baseball star Steve Garvey in a significant case that limits the circumstances under which an advertising spokesperson can be held responsible for product claims.

• Successfully defended Maryland private accountant and consultant, Paul L. Wright, in his criminal prosecution for conspiracy to commit bribery, bribery, and conspiracy to commit theft of government funds.