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We are experienced, determined and committed. We work together to prove our value every day to our clients and to each other.
Stephanie A. Scharf represents corporate clients on a wide range of complex matters including commercial disputes, insurance coverage for corporate policyholders, class action, defense, product liability defense, environmental torts and employment defense. In three decades of representing clients in federal and state courts, Stephanie has tried civil and criminal jury and bench trials, has managed the pre-trial, trial and appellate phases of litigation, and has overseen the resolution of multiple commercial disputes and complex tort actions. Stephanie frequently counsels companies on ways to avoid litigation and mitigate risks at the product or enterprise level.
Stephanie’s recent engagements include litigation over the scope of a multi-billion dollar facilities use contract; class action defense of distance learning programs; defense of fraud claims involving financial investments; multi-million-dollar insurance disputes for large corporate policyholders; pharmaceutical product liability defense; contract disputes involving global and small businesses; and the defense of non-competition, trademark and copyright litigation. At trial, she is adept at presenting technical issues to judges and juries, bringing to bear her advanced training in statistical analysis and scientific research. Whether as trial counsel, national coordinating counsel, regional counsel, or as a member of a "virtual firm" created to address specific client problems, Stephanie focuses on framing effective legal strategies and achieving results that serve her client's business goals.
Stephanie and the Firm were profiled for the "unique quality of their work" in the November 2014 Chicago Lawyer cover article, "Work at a Very High Level."
A frequent author and CLE speaker, Stephanie created and was the first editor of PLI's Product Liability Litigation: Current Law, Strategy and Best Practices; and has been honored by several other groups for the quality of her legal work. She has been named a Leading Lawyer, was granted the PLAC President's Award, and was selected by Lawdragon Magazine as one of the "500 Leading Litigators in America." She is "AV Preeminent" peer review rated by Martindale-Hubbell, reflecting the highest peer recognition for both ethical standards and legal ability.
Stephanie is one of the nation's leading lawyers for the advancement of women in the profession. She is 2018-2019 Chair of the American Bar Association Commission on Women in the Profession. She also chairs the ABA Presidential Initiative, Achieving Long-Term Careers for Women in the Law. A former President of the National Association of Women Lawyers (2004-2005), and a member of the Advisory Board of DirectWomen, Stephanie founded the NAWL Annual Survey of Women in Law Firms, the National Survey of Women's Initiatives, and the first-ever Survey of Women as Lead Counsel in Litigation. Among many other activities, she designed and chaired NAWL's first General Counsel Institute, its Supreme Court Committee, and its Summit for Best Practices for Advancing Women in Law. She was the 2015-2016 special Advisor to the American Bar Association's Presidential Commission on Diversity and Inclusion 360. She designed the empirical research report, First Chairs at Trial: More Women Need Seats at the Table, which was published by the American Bar Association in 2015.
Stephanie has received many awards in recognition of her work advancing women in the law including: The National Association of Women Lawyers Public Service Award 2017; the Chicago Bar Association Alliance for Women Founder’s Award 2015; the National Law Journal Two Steps Forward Award 2014; and the National Association of Women Lawyers Outstanding Member Award 2002. She was named by Crain’s Chicago 2017 as one of the 50 most influential women lawyers in Chicago.
Stephanie has a Ph.D. in Behavioral Sciences with a focus on social and organizational psychology as well as statistical analysis of large data sets. Before practicing law, she managed large national data-driven initiatives in the areas of health and employment.
Won Illinois Appellate Court decision in favor of Cook County Sheriff and against former officer who sought to invalidate his firing by arguing that he was disciplined by an improperly constituted administrative agency. Appellate held that the de facto officer doctrine overcame plaintiff’s objection that the agency was improperly appointed. Cruz v. Dart et al., 2018 IL App (1st) 170915-U.
Won Illinois Appellate Court decision in favor of Cook County Sheriff and against former officer who was fired for multiple unauthorized absences, and sought to invalidate his firing by arguing that he was disciplined by an improperly constituted administrative agency. Appellate Court affirmed agency’s disciplinary decision, and held that the de facto officer doctrine overcame plaintiff’s objection that the agency was improperly appointed. Lopez v. Dart et al., 2018 IL App (1st) 17-1773-U.
Represented the City of Chicago in a multibillion dollar claim for injunctive relief filed by American Airlines and United Airlines to stop the O'Hare Modernization Program, the largest civil construction program in the United States. After expedited motion practice and discovery, the litigation was successfully resolved, and the Program is proceeding to completion. American Airlines, et al. v. City of Chicago, Circuit Court of Cook County, Illinois.
Represented manufacturer/importer in a royalties and merger contract dispute, involving the importing and sale of products from China. Successfully resolved through mediation conducted under auspices of the court. CCG v. Rubbermaid Commercial Products et al., U.S. District Court for the Northern District of Illinois.
Represented global pharmaceutical company in federal trial of employment discrimination/off-brand marketing issues, resulting in defense verdict on all claims, Northern District of Illinois. Brevoort v. Reliant Pharmaceuticals and GlaxoSmithKline, U.S. District Court for the Northern District of Illinois.
Represented an online education business in obtaining a successful dismissal of class-action, consumer fraud, and breach of contract claims, brought by former Institute students. The case involved allegations that the defendant deceptively marketed a continuing education program. Obtained a dismissal in the trial court before a class was certified, with the result affirmed on appeal by the Illinois Appellate Court. Deweese v. Stratford Career Institute Inc., 2014 IL App (1st) 140074.
Represented global company sued under TCPA for alleged improper sending of invitations to educational seminar. Case dismissed after early briefing and fact-finding. North Suburban Chiropractic Clinic, Ltd. v. Merck & Co., 2013 U.S. Dist. LEXIS 130885 (N.D. Ill. Sept. 13, 2013).
Represented manufacturer in commercial dispute over liability for thousands of underlying tort claims recently arising out of the operation of a business that was acquired and later resold through a series of corporate mergers and transactions. Successful no liability judgment for client, affirmed on appeal. Fisher Controls Int'l, L.L.C. v. Pharmacia Corp., 2008 Iowa App. LEXIS 109 (Iowa Ct. App. Feb. 13, 2008).
Represented pharmaceutical manufacturer in multi-national dispute over commercial supply of contaminated pharmaceuticals. The matter involved litigation in the U.S. against the chemical company supplier and additional claims made by client corporate customers in Japan, Great Britain and other countries. A series of confidential dispute resolutions in the U.S. and Japan resulted in (a) making the client’s customers whole, and (b) recovery from the supplier.
Represented market-leading composite photography company in action filed under the Illinois Trade Secrets Act, for tortious interference and violation of non-competition agreement. Successfully resolved on the eve of preliminary injunction hearing. Digital Pix and Composites LLC v. Vantine Imaging, LLC, Circuit Court of Kane County, Illinois. No.
Represented food manufacturer against claims of fraud and misuse of trademarks and trade names for a consumer food product. After motion practice, the case was dismissed by the trial court, with the dismissal affirmed on appeal by the Seventh Circuit. Hunter v. PepsiCo, Inc., 631 Fed. Appx. 445 (7th Cir. Ill. Nov. 6, 2015).
Represented defendant in Qui Tam action alleging fraudulent claims for payment of a specialty prescription medication. A motion to dismiss was granted, disposing of all claims against client. United States ex rel. McDermott v. Genentech, Inc., 2006 U.S. Dist. LEXIS 90586 (D. Me. Dec. 14, 2006).
Represented manufacturer at trial for coverage of ongoing asbestos bodily injury claims, in dispute between client and multiple excess and umbrella liability insurers. Coverage disputes with various liability insurers were resolved before or during trial; disputes with several other insurers are ongoing. John Crane v. Admiral Insurance Co. et al, Circuit Court of Cook County.
Trial and appellate counsel representing a manufacturer of the anti-miscarriage drug, diethylstilbestrol. Resulted in coverage of defense costs and indemnities for over 1500 diethylstilbestrol personal injury cases, in a trial result affirmed by the California Supreme Court in the first decision by the Court regarding lost insurance policies. Dart Industries v. Commercial Union Ins, Co., California Supreme Court.
Represented manufacturer in commercial insurance disputes over hurricane damage. Obtained a declaratory judgment that a windstorm exclusion did not apply to the insured's business interruption losses and the court awarded full coverage for the losses. Stryker Corp. v. National Insurance Co., U.S. Federal Court for the District of Puerto Rico.
Represented manufacturer in insurance disputes filed in Michigan and Illinois over coverage of an Illinois jury's award of $124 million in punitive damages involving use of a prescription pharmaceutical, obtaining judgment covering both punitive and compensatory damages. Upjohn v. Aetna, et al., Michigan Court of Appeals; Gibraltar Casualty Co. v. Upjohn, Illinois Appellate Court.
Represented Blue Cross and Blue Shield of Illinois in defending various breach of contract and ERISA claims for health insurance benefits to cover treatment of mental and physical illnesses. Cases held in Illinois federal and state courts, and were resolved pre-trial.
Represented the Product Liability Advisory Council (PLAC) as amicus before the Illinois Supreme Court, supporting a successful challenge to an unprecedented $10.1 billion consumer fraud judgment. Price v. Philip Morris, Inc., 2015 IL 117687.
Lead science counsel for chemical company client in development medical defenses to personal injury claims arising from purported ground water contamination by volatile organic chemicals. Personal injury claims were eventually resolved and dismissed before extensive discovery. In re Alleged Environmental Contamination of Pompton Lakes, Superior Court of New Jersey.
Represented a chemical manufacturer in toxic tort actions alleging that emissions from an industrial site caused brain cancer, wrongful death and other serious personal injuries to children living around the site. The case involved a number of community actions and government investigations. After conducting expert discovery, obtained a highly favorable settlement and dismissal of all claims. Victor, et al v. Keil Chemical, United States District Court for the Northern District of Indiana.
Regional counsel/trial counsel in defense of multiple personal injury cases involving first-in-class treatment for diabetes. Focus on developing scientific defenses under Frye/Daubert criteria, depending on jurisdiction. Cases filed in state and federal courts throughout Illinois.
Represented manufacturer of a medical device based on biotechnology in personal injury action, Northern District of Illinois. Heisner v. Genzyme Corp., 2009 U.S. Dist. LEXIS 37322 (N.D. Ill. Apr. 30, 2009).
National Coordinating Counsel for Pfizer Inc. defending claims that thimerosal-based childhood vaccines caused autism and other neurological illnesses. Developed and implemented successful strategy for early disposition of over 60 cases filled nationally in state and federal courts, avoiding expensive and extended fact and expert discovery.
Lead defense counsel in over 100 pharmaceutical or device actions, involving serious illnesses and/or death, with expert defenses from multiple fields of medicine, psychiatry, epidemiology and toxicology. Cases filed in state and federal courts throughout Illinois.
Lead Science Counsel in multiple product liability and toxic tort engagements in different state jurisdictions. Some matters involved developing a package of science-based defenses in advance of anticipated litigation. Other matters involved developing scientific expert defenses for ongoing litigation and in coordination with firms playing different litigation roles in defending a mass tort or consumer fraud claims.
Represented manufacturer of a commercial pesticide against product liability claims for failure to warn about the personal injury risks of exposure. Successfully moved to transfer claims from Chicago to the venue where plaintiff's farm was located, on grounds of forum non conveniens. Dispute with plaintiff was resolved and claims against client were dismissed with prejudice shortly after venue transfer. Circuit Court of Cook County, Illinois.
Represented a global pharmaceutical company against failure-to-warn product liability claims in a wrongful death action in Illinois. The matter was resolved using early case assessment. Philipps v. The University of Chicago Hospitals et al., Circuit Court of Cook County.
American Bar Association: Chair, Commission on Women in the Profession, 2017-2018; Presidential Commission on Diversity and Inclusion 360, 2015-2016; Commissioner, Commission on Women in the Profession, 2012-2015; Task Force on Gender Equality, Co-Chair Compensation Committee, 2012-2014.
National Association of Women Lawyers (NAWL): (President, 2004-2005; Member, Board of Directors, 2000-2008; Chair, Committee for Evaluation of Supreme Court Nominees, 2005-2006; Chair, Survey of Retention and Promotion of Women in Law Firms, 2006-Present). Outstanding Member Award, 2002.
NAWL Foundation: (President & Board Member, 2009-2014). Founding President of the Foundation. Organized structure, strategic plan and fundraising. Designed, analyzed and reported on multiple studies of how lawyers advance in the legal profession.
American Bar Association Products Liability Committee: (Co-Chair, 2005-2007; Co-Chair, Subcommittee on Experts, 1997-2004; Co-Chair, 2000 Mid-Year Meeting; Co-Chair, National Institute on E-Commerce, Fall 2000; Co-Chair, Regional Institute on Preparing the Expert Case, May, 1999; Co-Editor, Product Liability National Newsletter, 1997-2000; Co-Chair, Women in Products Liability Regional Institute, Fall 2000, Fall 2001; Mass Torts Committee (Editor, Mass Torts Newsletter, 2001); Special Committee on Bioethics and the Law, Member, 2005-Present).
Illinois Bar Foundation (Member, Board of Directors, 2005-2007).
Product Liability Advisory Council (PLAC): (Sustaining Member, Member, PLAC Case Selection Committee, 2005-Present).
National Institute for Trial Advocacy (Faculty Instructor, 1992-1995).
The Economic Club of Chicago (Member, 2006-Present).
University of Chicago Women's Business Group (Member, 2004-Present).
The Youth Campus (Member, Board of Directors, 2000-2009).
Museum of Science and Industry (Member, President's Council, 2001-2005).
Chicago YWCA - Leadership Circle (Board Member, 2001).
Circuit Court of Cook County (Chief Judge's Public Guardian Committee, 1997-2000; Chair, Best Interest of the Child Sub-Committee, 1995-1996).
Chicago Senior Businesswomen's Forum (Steering Committee, 1996-2000).
"Product Liability Litigation: Current Law, Strategies and Best Practices." Practising Law Institute (PLI). Lead Editor. Original publication 2009, and updated annually through 2015.
"Expert Evidence - Law, Strategies and Best Practices." Co-author. Published in Product Liability Litigation: Current Law Strategies and Best Practices. Practicing Law Institute, 2015.
"Update on the Law: Illinois Imposes Strict Liability for Sexual Harassment by Any Supervisor," S. Scharf, Client Alert, April 2009.
"FDA Proposes Revised CBE Rules and Reiterates Preemptive Authority," FDLI's UPDATE, Issue 2, March/April 2008.
"Punitive Damages in the Supreme Court: How Much is Too Much?" FDLI's UPDATE, Issue 3, May/June 2007.
"Foreign Plaintiffs Battle to Keep Class Claims in U.S. Courts," Co-Author, FDLI's UPDATE, Issue 1, January/February 2007.
"New Rulings in Drug Cases Highlight Debate Over Preemption," Law.com, October 2006.
"FDA's Comments Herald New Strength for Preemption Defense in Drug Product Litigation," Co-Author, FDLI's UPDATE, Issue 5, September/October 2006.
"The Use of Toxicology in Tort Litigation: A Survey of Federal and State Jurisdictions," Co-Author, American Bar Association, May 2005.
"FDA Issues Final Guidances for Pharmaceutical Risk Assessment and Risk Management," Jenner & Block Client Alert, March 2005.
"A Business Approach to Minimizing Product Liability Litigation," Minimizing Product Liability Litigation (Aspatore Books), 2005.
"Direct-to-Consumer Advertising of Prescription Pharmaceuticals and Medical Devices," presented at TechLaw Group, Inc. International CLE Session, April 2004.
"The Use of Epidemiology in Tort Litigation: A Survey of Federal and State Jurisdictions," American Bar Association, July 2003.
"Secondary Evidence Need Not Recreate Language of Missing Insurance Policy, California Supreme Court Rules," Jenner & Block Insurance Newsletter, 2003.
"Marketing Pharmaceutical Products on the Internet: Managing Risks and Limiting Liabilities in the World of E-Commerce," Products Liability, American Bar Association, Vol. 12, No.2, 2001.
"Communications Specialists Help With Damage Control," U.S. Business Litigation Magazine, February 1997.
"Sexual Harassment in the Legal Profession" (Moderator), ABA Commission on Women in the Profession, Chicago, IL, May 2018.
"Religious Liberty in the United States and Israel" (Moderator), Jewish Lawyers Conference, Chicago, Illinois, May 2016.
"GC's Question If Partners Are Worth The Cost, " LAW360, New York, New York, May 28, 2014.
"Jury Selection: How to Find the Needle in the Haystack," DRI Women in the Law Seminar, Miami, Florida, March 2013.
"Update on the Law of Expert Evidence," Practicing Law Institute's Federal Civil Update, Chicago, Illinois, October 2012.
"Unconscious Bias in Jury Selection," Product Liability Advisory Council 2012 Spring Conference, Asheville, North Carolina, April 2012.
"Update on the Law of Expert Evidence," Practicing Law Institute's Federal Civil Update, Chicago, Illinois, October 2011.
"Changing Demographics of Jury Pools", Product Liability Advisory Council Fall Conference, October 2009.
"Best Practices for Managing the Risks of Nanotech Medical Products," Food and Drug Law Institute's First Annual Conference on Nanotechnology Law, Regulation and Policy, February 2008.
"Risk Management Strategies for Prescription Medical Products," Central Business Intelligence, December 2007.
"Post Sale Duty to Warn, Recall, and Retrofit: Prescription Devices and Pharmaceuticals," American Bar Association, August 2007.
"Appellate Advocacy in Illinois: Best Practices for Written and Oral Argument," National Association of Women Lawyers, July 2007.
"Drug/Device Co-Development: Litigation Risk Management Strategies," 50th Annual FDLI and FDA Conference, April 2007.
"Post-Marketing Event Reports and Clinical Trial Data: Potential Uses and Abuses in Litigation," American Conference Institute, June 2006.
"Psychology of Expert Testimony," Product Liability Advisory Council, April 2006.
"Assess the Current Regulatory Environment for Risk/Benefit Communication," The Center for Business Intelligence, November 2005.
"Damage Control: Corporate Counsel's Role in Containing and Resolving Corporate Crises," Lexis/Nexis Counsel to Counsel Seminar, May 2005.
"Risk Assessment and Risk Management Before the Product Launch," Food and Drug Law Institute, January 2005.
"Consumer Fraud Litigation in Illinois," Product Liability Advisory Council, October 2004.
"Consumer Fraud Litigation: Law and Defenses in Illinois," Product Liability Advisory Council, September 2004.
"Risk Analysis and Resource Allocation: The Art of Managing Costs," Corporate Legal Times Super Conference, June 2004.
"Post Sale Responsibilities: Impact of Agency Activities on Product Litigation," Product Liability Advisory Council (PLAC), April 2004.
"Our Federalism: Court Problems and Potential Solutions in Multi-District Litigation," Class Actions and Consolidated Mass Tort Litigation, American Bar Association Joint Seminar of the Environmental Products Liability & Mass Torts Litigation Committees, March 2004.
"Mealey's Fundamentals of Insurance Coverage Law Conference," October 2003.
"Mealey's Trial Preparation Skills for Paralegals," April 2003.
"Evolving Asbestos Coverage Issues in an Era of Exponential Growth in the Number of Defendants," Mealey's Advanced Insurance Coverage Conference: Top 10 Issues for Practitioners, January 2003.
"Class Action Defense, Chicago Bar Association Class Litigation Committee," October 2002.
"Post-Sale Duties to Warn, Recall and Retrofit: A Midwest Survey: Manufacturers Face Differing Duties in the Midwest," American Bar Association, March 2002.
"Use of Foreign Experts and Foreign Studies," American Bar Association Products Liability Committee Annual Meeting, March 2002.
"Marketing Products on the Internet: Managing Risks, Limiting Liabilities and Litigating Disputes," Co-Chair, American Bar Association National Institute, September 2000.
"Identifying and Managing Risks of Product Liability Litigation from Internet Sales," Hackers-Spammers-Cyber-Squatters-Business Torts on the Electronic Frontier, American Bar Association Annual Meeting, July 2000.
"Product Liability.com-New Issues and New Solutions," American Bar Association Section of Litigation/Products Liability Committee Midyear Meeting, February 2000.
"After Kumho Tire: The Court as the Gatekeeper of Expert Testimony," Deloitte & Touche Annual Meeting, September 1999.
"After Kumho Tire: The Court as the Gatekeeper of Expert Testimony," Deloitte & Touche National Consulting Conference, Chicago, Illinois, August 26, 1999.
"Crisis Management," Joint ACCA/Chicago Bar Association Seminar, April 1999.
"The Court as the Gatekeeper of Expert Evidence," Chair, American Bar Association Regional Institute, May 1999.
"The Media and Products Litigation," For The Defense Magazine, Defense Research Institute, October 1996.
"Immigration Reform and the Federal Law of Employment Discrimination," The New Simpson-Rodino Immigration Law of 1986 (S. Mailman, ed.), pp.202-223, Prentice Hall, New York, 1986.
"The Power of Partnering" Authors: Stephanie Scharf, N. Nate Saint Victor and Antonio C. Castro, December 2016.
"First Chairs at Trial: More Women Need Seats at the Table," Authors: Stephanie Scharf and Roberta D. Liebenberg, American Bar Foundation July 2015.
"The Strategy, Structure and Scope of Women's Initiatives in Law Firms," NAWL Foundation, Chicago, Illinois 2012.
"How General Counsel Can Impact Pay Equity for Women Lawyers," Authors: Lauren Rikleen, Roberta Liebenberg and Stephanie Scharf, American Bar Association, Chicago, Illinois 2012.
"NAWL Annual Survey of Retention and Promotion of Women in Law Firms," Authored or co-authored each annual report from 2006-2014. NAWL Foundation and NAWL, Chicago, Illinois 2006-2014.
"My Start Story," Start TV, November 2018.
"May It Please the Court," Symposium at the U. S. Distric Court for the Northern District of Illinois, April 2018.
"ABA National Summit on Achieving Long-Term Careers for Women in the Law," ABA, Cambridge, MA, November 8, 2017.
"Women, Influence and Power in the Law Conference," Panelist, Washington, D.C., October 10-12, 2017.
“Women Lawyers in the Courtroom,” Empirical Data on Women Lawyers as Lead Counsel, Women Lawyers Leading Cases in the Courtroom, Boston, MA, June 7, 2017.
“The Certification Question,” Chicago Lawyer, Chicago, IL, June 2017.
"Addressing Gender Bias and Advancement and Retention of Women in Law Firms, the Profession, and the Courts,” New Jersey State Bar Association, Atlantic City, NJ, May 17, 2017.
“Surveys on Women Lawyers as Lead Counsel and Trial Counsel in Complex Litigation,” Center for Women in Law, Houston, TX, February 23, 2017.
“What Every In-house Lawyer Needs to Know About Compliance,” Walmart, Bentonville, AR, January 31, 2017.
“Current Issues,” ABA WIPL Regional CLE Joint Networking ABA. Association, Philadelphia, PA, November 3, 2016.
"First Chairs at Trial: More Women Need Seats at the Table," Stephanie Scharf with Co-Panelist Roberta D. Liebenberg, American Bar Association Webinar, November 2016.
“Session an Alternative Fee Arrangements,” NAMWOLF 2016 Annual Meeting, Houston, TX, September 14-17, 2016.
“How I Got My First Big Break!” Coalition of Women’s Initiatives in Law, Chicago, IL, September 2016.
“First Chair at Trial,” National Associating of Women Lawyers, New York, NY, July 12, 2016.
"Rainmakers: Born or Bred?" Women Legal 2016, Chicago, Illinois, June 2016.
“Rainmakers: Born or Bred?,” Women Legal 2016, Chicago, IL, May 19, 2016.
“Religious Liberty in the United States and Israel,” Moderator, Jewish Lawyers Conference, Chicago, IL, May 18, 2016.
“Women Lawyers in the Courtroom,” The United States District Court for the Northern District of Illinois and the Chicago Bar Association, Chicago, IL, April 21, 2016.
"Women's Mentoring Program," University of Chicago Law School, Chicago, Illinois, April 7, 2016.
"You Hit Like a Girl: Overcoming the Challenge of Unconscious Bias." American Bar Association/Section of Litigation, Chicago, Illinois, November 2015.
"Breaking into the Boardroom: The Pathways and The Process," DirectWomen, Chicago, Illinois, November 17, 2015..
“Hit Like a Girl,” ABA Women of the Section of Litigation Meeting, American Bar Association, Chicago, IL, November 11-13, 2015.
“First Chairs at Trial More Women Need Seating at the Table,” Chicago Bar Foundation, Chicago, IL, October 8, 2015.
“Women as Leaders in Law: Where Are We Now,“ Phillip Corboy Law Center, Loyola University Chicago School of Law, Chicago, IL, September 25, 2015.
"The Minority/Majority Partnership Report," NAMWOLF, Hollywood, CA, September 18, 2015.
“Women as Lead Counsel at Trial: What You Can Do to Take the Lead,” American Bar Association, Chicago, IL, August 1, 2015.
“Negotiating Scenarios for Women Lawyers,” Thompson Reuters Confererence, Chicago, IL, May 28, 2015.
"Solutions and Best Practices for Diversity in the Legal Profession," Diversity Summit, St. Louis, Missouri, May 20, 2015.
“Problems, Solutions and Best Practices: Roundtable on Diversity in the Legal Profession,” Missouri Bar Diversity Summit, St Louis University School of Law, St. Louis, MO, May 20, 2015.
“Defining a Successful Women’s initiative,” National Association of Women Lawyers, West Point, NY, May 1, 2015.
“Negotiating Your Own Compensation: It’s Not About the Money,” American Bar Association, Chicago, IL, February 17, 2015.
"The Diversity Discussion," Chicago Lawyer Magazine, Chicago, IL, July 2014.
"Female Lawyers Still Battle Gender Bias," The Wall Street Journal, May 4,2014.
“30 Women Blackstones,” ISBA seminar, Chicago, Illinois, August 22, 2013.
"The Role of Women's Initiatives in Advancing Women Lawyers," National Association of Women Lawyers National Webinar, April 2013.
"Capture Your Power: Your Role in Advancing Yourself and Other Women in the Legal Profession," American Bar Association, Chicago, Illinois, March 2013.
"Breaking the Class Ceiling," New York University School of Law Symposium, March 2013.
"Results of the First National Survey of Women's Initiatives," National Association of Women Lawyers Annual Meeting, New York, New York, July 2012.
"Women and Minorities: Willing Partners or Reluctant Allies?" NAWL Annual Meeting, New York, New York, July 2012.
“Women in Law: The Path to Partner," Today's Chicago Woman Magazine, Chicago, Illnois, May 2012.
"Flex Time Work Policies, Walmart Conference," Bentonville, Arkansas, June 2010.
"What Am I Worth? Attorney Compensation and Law Firm Billing in the New World Order," Duff & Phelps CLE seminar, Chicago, Illinois, June 2010.
"What Should You Do? Lessons Learned and Lessons to Be Learned About Business Development," Women Lawyers Alliance Inaugural Member Meeting, Chicago, Illinois, May 2010.
"Women in the Profession: Where We Were, Where We Are, Where We Should Be," Ohio Women Bar Association's Annual Meeting, Dayton, Ohio, May 2010.
"National Association of Women Lawyers Annual Survey on the Retention and Promotion of Women in Law Firms," American Bar Association on Women in the Profession, July 2009.
"Managing Diversity Expectations Between In-House and Outside Counsel," Martindale-Hubbell and Lexis Nexis, Washington, District of Columbia, April 2009.
"Managing and Developing Your Legal Career," ABA Women in Products Liability Ninth Annual Regional CLE Workshop, New York, New York, November 2008.
"Increasing the Use of Diverse Suppliers," Westchester and Fairfield County ACCA Diversity Summit Conference, October 2008.
"Impact of Attrition on Women in Large Firms on Judicial Diversity and Judicial Independence," National Association of Women Judges Mid-West Regional Conference, August 2008.
"Bridging the Gap: Disparity in Compensation and the Gender Equation," Young Lawyers Section of the Chicago Bar Association, March 2008.
"Negotiating Your Compensation and Severance," Minority Corporate Council Association's 7th Annual CLE Expo, March 2008.
"2007 National Survey on Retention and Promotion of Women in Law Firms," National Conference of Women's Bar Association, February 2008.
Partner Stephanie Scharf moderated DirectWomen’s regional program, “Breaking into the Boardroom: the Pathways and the Process.” The seminar was held on April 3, 2019 and was hosted by Kirkland & Ellis LLP.
Stephanie Scharf, Chair of the ABA Commission on Women in the Profession, discussed a new project aimed at giving actionable advice to law firm leaders and women lawyers about engaging male colleagues in new strategies for leveling the legal playing field.
On December 17, 2018, the Appellate Court of Illinois (First District) held that the de facto officer doctrine should be applied to bar a challenge by a correctional officer to the constitution of the Cook County Sheriff’s Merit Board. Steven Cruz v. Thomas J. Dart, et al., 2018 IL App (1st) 170915-U.
Partner Stephanie Scharf is featured in two interviews aired on Start TV, a new national network targeting women viewers. The vignettes offer network viewers stories about influential women and how they got their start.
Partner Stephanie Scharf, Chair of the ABA Commission on Women in the Law, spearheaded the adoption of Resolution 300 by the House of Delegates at the ABA Annual Meeting in Chicago, August 6, 2018. The Resolution urges law firms to end mandatory arbitration of sexual harassment claims.
Stephanie Scharf, Partner and Chair of the ABA Commission on Women in the Profession, served as panel moderator for the ABA webinar, “The Shameful Truth: Sexual Harassment in the Legal Profession.” The webinar, held May 23, 2018, was the fourth of six webinars in the ABA’s six-part series on different aspects of sexual harassment, sexual assault and evolution of the law.
On April 12, 2018, Partner Stephanie Scharf addressed an audience of over 450 attorneys attending the “May It Please the Court” Symposium at the U.S. District Court for the Northern District of Illinois. The program, which featured notable members of the judiciary, chief legal officers and law firm leaders, addressed strategies and best practices to empower women as lead counsel and trial counsel in litigation.
In her first “Perspectives” newsletter column Partner Stephanie Scharf, Chair of the ABA Commission on Women in the Profession, describes some recent actions that the Commission has taken to blunt the impact of sexual harassment at work, along with research and publications that help women lawyers advance in their careers.
The American Bar Association has adopted a new Resolution about the policies and procedures for all employers, including legal employers, to prevent sexual harassment in the workplace. Resolution 302 became an official policy of the ABA on February 5, at its 2018 Midyear Meeting, where it was passed unanimously by the ABA House of Delegates.
Distinguished lawyers from all sectors of the legal profession gathered at Harvard Law School on Nov. 8, 2017 to discuss a problem that has affected the legal profession for decades —experienced women leaving the legal profession in substantial numbers.
Founding Partner Stephanie Scharf was a panelist at the Women, Influence and Power in the Law conference October 10-12, 2017 in Washington, D.C. The conference, sponsored by InsideCounsel and Corporate Counsel magazines is a global forum facilitating women-to-women exchange on leadership and legal issues.
Stephanie Scharf was selected by Crain’s Chicago Business as one of Chicago’s Most Influential Female Lawyers. Crain’s highlighted Ms. Scharf for her skill as a trial lawyer and her role as a national bar leader.
Partner Stephanie Scharf has been appointed Chair of the American Bar Association’s Commission on Women in the Profession starting in August 2017.
Congratulations to partner Stephanie Scharf for receiving the National Association of Women Lawyers (NAWL) 2017 Public Service Award.
Congratulations to Stephanie A. Scharf and Theodore L. Banks and George D. Sax, for being named mong top Illinois lawyers.
Partner Stephanie Scharf was an invited panelist at two conferences in November 2016, where she discussed her innovative research, First Chairs at Trial: More Women Need Seats at the Table.
Partner Stephanie Scharf along with N. Nate Saint Victor, Executive Director of Morgan Stanley’s Legal Department and Antonio C. Castro, Managing Partner of Zumpano Castro, LLC have authored a new publication for the National Association of Minority and Women-Owned Law Firms.
Stephanie Scharf, founding partner, was featured in the recent University of Chicago Law School Record as one of 8 lawyers in the Class of 1985 who took varied career paths.
Stephanie Scharf just completed her service as an Advisor to the ABA Diversity and Inclusion 360 Commission, a special ABA Presidential Commission formed by 2015-2016 President Paulette Brown.
Partner Stephanie Scharf speaks about women trial lawyers at special Federal Court Symposium. Women Lawyers in the Courtroom.
Partner Stephanie Scharf was the featured speaker at a reception held by the Women’s Mentoring Program of the University of Chicago Law School on April 7, 2016.
Partner Stephanie Scharf has been featured in the University of Chicago Law School Online Magazine for the innovations she has brought to the practice of law and for advocating for the advancement of women in the law.
Congratulations to Stephanie A. Scharf and Theodore L. Banks, who have been selected to the 2016 Illinois Super Lawyers list by Super Lawyers Magazines.
Partner Stephanie Scharf moderated a special program sponsored by DirectWomenin Chicago.
Partner Stephanie A. Scharf has been appointed as Advisor to the American Bar Association’s new Presidential Commission on Diversity and Inclusion 360.
A first-of-its-kind empirical study about the significant disparities between women and men as lead trial counsel in civil and criminal litigation has been written by Stephanie A. Scharf, partner at Scharf Banks Marmor LLC, and Roberta D. Liebenberg, senior partner at Fine, Kaplan and Black, R.P.C.
The Chicago Bar Association’s Alliance for Women has named Scharf Banks Marmor LLC founding partner Stephanie A. Scharf the recipient of its prestigious Founder’s Award for 2015.
The June 2015 edition of Inside Counsel interviews several lawyers, including partner Stephanie Scharf, about the prospects for securities class actions.
Stephanie Scharf was an invited faculty member for the Diversity Summit held by the Missouri Bar Association on May 20, 2015 in St. Louis.
On February 27, 2015, Inside Counsel published an interview with partner Stephanie Scharf regarding the future of securities class actions.
Congratulations to Stephanie A. Scharf and Nina Stillman who have been recognized as 2015 Illinois “Super Lawyers” by Super Lawyers Magazine.
On January 21, 2015 the Firm filed one of two amicus briefs accepted by the Illinois Supreme Court on behalf of the manufacturer-defendant in Price v. Philip Morris, an Illinois consumer fraud case that awarded class plaintiffs $10.1 billion (including $1.8 billion in fees to the plaintiffs’ trial lawyers)--the largest judicial award in Illinois history.
Partner Stephanie Scharf moderated the opening plenary session of the first-ever American Bar Association Section of Litigation conference directed to women trial lawyers.
Stephanie Scharf, now a partner at Scharf Banks Marmor LLC, founded the General Counsel Institute (“GCI”). Scharf targeted the meeting to senior corporate counsel who had the goal of advancing to the role of chief legal officer.
Sarah Marmor, Stephanie Scharf, and Ted Banks presented a seminar to the North Shore Labor Counsel meeting June 13, 2014. Topics discussed were the implications for employment lawyers of the recent repeal of the Illinois' anti-eavesdropping law.
Chicago Lawyer interviewed partner Stephanie Scharf in its July 2014 issue about the challenges that firms face to enhance diversity in the workplace.
On May 28, 2014 as part of a series of articles on the changing paradigm for outside legal services, Law360 interviewed partner Stephanie Scharf about law firm rates.
Partner Stephanie Scharf was honored on May 13, 2014 by the National Law Journal, who awarded Ms. Scharf and four other lawyers NLJ's first-ever Two Steps Ahead Award for contributions to advancing women in the law.
Partner Stephanie Scharf was interviewed by the Wall Street Journal about law firm billing rates.
Congratulations to partners Stephanie A. Scharf and Theodore Banks, who have been recognized as 2014 Illinois “Super Lawyers” by Super Lawyers Magazine.
Stephanie Scharf was a featured speaker at the “30 Women Blackstones” seminar held on August 22, 2013 in Chicago.
Stephanie Scharf has been appointed to the Board of Directors of the Chicago Bar Foundation.
Stephanie Scharf spoke at a DRI Seminar in Miami on "Jury Selection: How to Find the Needle in the Haystack."
Partner Stephanie Scharf spoke on March 1, 2013 at the New York University School of Law Symposium, "Breaking the Glass Ceiling."
Congratulations to Stephanie A. Scharf, who was recognized as a 2013 Illinois "Super Lawyer."
American Bar Association President Laurel Bellows has appointed Stephanie Scharf, to the ABA’s Commission on Women in the Profession.
Partner Stephanie Scharf spoke to an invitation-only group of law firm leaders in New York City on July 18 on the effectiveness of Women’s Initiatives for advancing women in law.

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05.02.16 | IP Alert: U.S. Supreme Court Will Weigh in on Star Athletica LLC v. Varsity Brands Inc.
Today, the U.S. Supreme Court agreed to review an August 2015 ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Star Athletica LLC v. Varsity Brands Inc. as to whether Varsity’s two-dimensional graphic designs are entitled to copyright protection as “pictorial, graphic, and sculptural works” under the copyright law. It is the first time the U.S. Supreme Court will address copyright protection for apparel.
Fashion is part of the creative economy. The fashion and apparel design sector brings together fashion creatives, executives and entrepreneurs in more than 200 countries. According to industry reports, fashion is over a $1.2 trillion global business with more than $250 billion spent yearly in the United States. Blogs and social media like Twitter cover the fashion industry as part of their international news coverage, focusing on the ever-changing world of creative designer expressions. Intellectual property rights are an essential tool to protect new innovations and developments in the fashion design business. Copyright protection can be the appropriate avenue of protection for certain aspects of apparel, but so far it has proven to be a problematic strategy for fashion designers.
Copyright protection for fashion design has been difficult to obtain and is very limited, mainly due to copyright rulings that clothing designs are utilitarian or functional. In Fashion Originators Guild v. FTC, 114 F.2d 80, 84 (2d Cir. 1940) (L.Hand, J.), aff’d, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), dresses were determined to be merely useful articles not protectable by the Copyright Act. In other words, clothing design is a useful article because its function is to cover or enclose the human body of the wearer. However, many clothing designs and accessories have ornamental, artistic value that probably should be entitled to copyright protection because they are artistically expressive rather than solely utilitarian in nature. Ideally, as new expressive mediums evolve, the law should steer toward providing designers adequate protection for their creative works.
The difficult hurdle for copyright protection of clothing designs as useful articles is to pass the so-called “separability” test. The separability test permits copyright protection only if, and to the extent that, the design incorporates graphic, pictorial, or sculptural features that are conceptually or physically separable from the utilitarian aspects of the article. 17 U.S.C. §101. Courts have struggled to formulate an effective test for determining conceptual separability.
The ruling in Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015), appears to be instructive for design-driven apparel companies seeking to overcome the obstacle of separability and obtain copyright protection. However, the U.S. Supreme Court will now have last word on copyright protection of apparel. Plaintiff Varsity Brands is a manufacturer of apparel including cheerleading uniforms. Despite the general reluctance to grant copyright protection to apparel designs, Varsity received U.S. copyright registrations for several of its cheerleading uniform designs for “two-dimensional artwork.” The Varsity designs included graphical elements such as stripes, chevrons, zigzags, and colorblocks.
Defendant Star Athletica also sold cheerleading uniforms. Star advertised cheerleading uniforms that were strikingly similar in appearance to Varsity’s designs, and so Varsity sued for copyright infringement based upon their registered designs.
At the district court, Star asserted that the Varsity copyright registrations were invalid because clothing is a useful article and therefore ineligible for copyright protection. The district court applied the separability framework that pictorial, graphic, or sculptural features are protectable if they are conceptually separable from the utilitarian function of the article, even if the features cannot be physically removed. Id. at 483. Subsequently, the district court entered summary judgment for Star by defining Varsity’s uniforms as having a utilitarian function as uniforms for cheerleading so as “to clothe the body in a way that evokes the concept of cheerleading.” (emphasis provided) Varsity Brands, Inc. v. Star Athletica, LLC, No. 10-2508, 2014 WL 819422, at *8 (W.D. Tenn. Mar. 1, 2014).
Simply put, the court reasoned that in order to be a cheerleading uniform, the clothing must have certain essential graphical features that make it look like cheerleading apparel to the observer so that the observer recognizes that the wearer is a cheerleader and/or a member of a cheerleading team. For this reason, the district court concluded that the aesthetic ornamental elements (e.g., stripes, chevrons, zigzags, and colorblocks) in Varsity’s cheerleading uniforms were not separable from the clothing’s utilitarian function of identifying the wearer as a cheerleader. Dissatisfied with the result, Varsity appealed the district court’s entry of summary judgment to the U.S. Court of Appeals for the Sixth Circuit.
If the design is a pictorial, graphic, or sculptural work, then is it a design of a useful article?
Can the viewer of the design identify “pictorial, graphic, or sculptural features” separately from the utilitarian aspects of the useful article?
Can “the pictorial, graphic, or sculptural features” of the design of the useful article exist independently of the utilitarian aspects of the useful article?
Varsity, 799 F.3d at 476.
As to the first question, the court ruled the Varsity uniform designs have two-dimensional graphic works. For the second question, they held that it was clear the cheerleading uniform designs are useful articles. For the third question, the Sixth Circuit deviated from the district court’s view of the definition of utility. The Sixth Circuit determined that Varsity’s uniforms had a utilitarian function to cover the body, to wick away moisture and withstand athletic movements of the wearer. It rejected the definition of utility that the uniforms convey information to the observer that merely identifies the wearer as a cheerleader or member of cheerleading team. The court reasoned, by the statutory definition, a useful article must not only convey information (e.g., identifying the wearer) but must have a useful function, such as “to clothe the body.” The court also rejected the argument that the graphical elements in the clothing only serve a utilitarian function of decorating clothing for a cheerleading uniform. The court notes that this definition of “decorative function” as a utility would “render nearly all artwork unprotectable.” Varsity at 490.
For the fourth question, the court noted that the graphic features can be identified separately from the parts of the uniform design as “the record establishes that not all cheerleading uniforms must look alike to be cheerleading uniforms.” Id. at 491. The graphic features of the design, including the stripes, chevron, zigzags, and color-blocking, are separately identifiable because customers can identify differences between the graphic features of each of Varsity’s designs, and thus a graphic design and a blank cheerleading uniform can appear “side by side.” Id.
On the fifth question, the court observed that the arrangement of the stripes, chevrons, color blocks, and zigzags can exist independently of the cheerleading uniform; these designs are interchangeable on articles of clothing that can be incorporated on the surface of other types of garments, such as practice athletic wear, warmups, and jackets. Finally, the court articulated the opinion that Varsity’s graphical elements are more akin to protectable “fabric designs” imprinted on fabric rather than generally unprotectable “dress designs,” which primarily pertains to the cut or silhouette of an article of clothing. Id. at 490.
The dissent in Varsity notes that separability analysis has been a metaphysical quandary for the courts and “[t]he law in this area is a mess—and it has been for a long time.” Varsity at 496-97. “[C]ourts will continue to struggle and the business world will continue to be handicapped by the uncertainty of the law.” Id. at 497.
Under this uncertainty, to present a stronger case of copyright protection for an article of apparel, seek to clearly identify the pictorial, graphic, or sculptural feature in the work of art, and make sure that the utility function of the clothing can be defined separate and apart from any graphical, pictorial or structure features. In most cases, high-value fashion designs will need a blend of copyright, trademark, and design patent protection to combat fashion piracy. Given the current ambiguity highlighted by Varsity, clients and attorneys will need to carefully consider the best routes for intellectual property protection of each article to determine which is most consistent with the client’s business objectives. Hopefully, the U.S. Supreme Court will provide more certainty in this area of the law.
We will continue to monitor the developments in this case.


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Impaired cutaneous wound repair remains a great clinical challenge which not only gives rise to tremendous pathological issues such as persistent symptoms, infection, and scar healing, but also brings an estimated annual economic burden at a magnitude of billions of dollars, as well as psychological stress.1,2 However, optimum treatment options are still lacking, demanding the development of novel strategies to accelerate wound healing.
As significant progress has been achieved in understanding the underlying mechanisms of wound repair recently, a variety of cytokines, chemokines and growth factors involved were identified. Among them, nitric oxide (NO) is one of the most important factors in the regulation of the three cascaded and overlapping phases, inflammation, proliferation and remodeling, of the wound healing process, exerting biological effects including antibacterial properties, enhancing collagen synthesis and deposition, promoting angiogenesis, etc.3–5 The importance of NO in wound healing has been proved at different levels and from different perspectives.3 For instance, the levels of nitric oxide metabolites correlate with the healing trajectory,6 indicating the tendency of recovery or exacerbation. The topical application of exogenous gaseous NO or the nitric oxide synthase (NOS) stimulator,7 the transfer of the NOS gene,8,9 and the systemic supply of the NOS substrate10 are all capable of elevating the local NO concentration, and consequently, promoting wound recovery. On the other hand, a blockade or knockout of NOS, or the clearance of NO by a scavenger impairs wound healing.11,12 Furthermore, the inhibition of arginase, the enzyme which hydrolyses arginine substantially faster than NOS and consequently depletes the substrate for NO synthesis, accelerates wound healing.13,14 The beneficial effects of nitric oxide make the modulation of the NO signal pathway an attractive approach for the promotion of wound healing.
In this work, a novel diazeniumdiolate nitric oxide donor was prepared using propylene oxide (PO) modified polyethylenimine (PEI) and gaseous NO. The obtained polymer (PEI-PO-NONOate) was characterized by Fourier transform infrared (FTIR) spectroscopy, UV-vis absorption spectra, and nuclear magnetic resonance (NMR). The storage stability of PEI-PO-NONOates was studied under anhydrous conditions at different temperatures (−18 °C, 4 °C, and 35 °C), and the release profiles were investigated in PBS of different pH values and within the polyethylene glycol (PEG) mixture system. The cytotoxicity assay was performed on mouse fibroblast cells (L929). The effect of PEI-PO-NONOates on wound healing was investigated in vivo using a mouse full-thickness cutaneous wound model. Wound areas and the wound closure of the NO treatment group and the control group were determined and compared. Histological analysis including hematoxylin–eosin (HE), Masson trichrome and Sirius Red staining, as well as immunohistochemistry and immunofluorescence studies of CD31 and VEGF, were performed to investigate and elucidate the underlying mechanisms.
Branched polyethylenimine (PEI, MW 1800, 99%), propylene oxide (PO, ≥99%) and sodium methoxide (≥97%) were purchased from Aladdin Industrial Corporation (Shanghai, China). Ethanol, methanol and tetrahydrofuran (THF, AR) were obtained from Nanjing Chemical Reagent Co., Ltd (Nanjing, China). The nitric oxide assay kit (Griess reagent) was obtained from Beyotime Institute of Biotechnology (Shanghai, China). NO gas (≥99.9%) was obtained from Nanjing Tianze Gas Co., Ltd (Nanjing, China). Mouse fibroblast cells (L929) were purchased from the American Type Culture Collection (ATCC, Manassas, VA, USA). Roswell Park Memorial Institute 1640 (RPMI 1640, containing L-glutamine) was purchased from Gibco (Thermo Fisher Scientific, Waltham, MA, USA). Fetal bovine serum (FBS) was purchased from Zhejiang Tianhang Biological Technology Stock Co., Ltd (Hangzhou, China), and was heated for 30 min at 56 °C for sterilization, and then cryopreserved at −20 °C for later use. The cell counting kit-8 (CCK-8), polyethylene glycol (PEG, MW 400) and pentobarbital sodium (>99%) were purchased from Dojindo China Co., Ltd (Shanghai, China), Sigma-Aldrich (Saint Louis, MO, USA) and MSD China (Shanghai, China), respectively. The anti-VEGF antibody (rabbit polyclonal IgG, 1 : 200 dilution, Cat. no. GB11034), anti-CD31 antibody (rabbit polyclonal IgG, 1 : 400 dilution, Cat. no. GB11063), Cy3 conjugated goat anti-rabbit IgG (heavy + light chain, 1 : 300 dilution, Cat. no. GB21303), Tris–EDTA buffer antigen retrieval solution (pH 9.0, Cat. no. G1203), and 4′,6-diamidino-2-phenylindole (DAPI, Cat. no. G1012) were purchased from Servicebio (Wuhan, China).
The synthetic route of PEI-PO-NONOates is shown in Fig. 1. Polyethylenimine (PEI) was dissolved in absolute ethanol, and propylene oxide (PO) with equal moles of the primary amine on PEI molecules was added to the solution in an ice-water bath while stirring. After reacting for 2 days, the solution was dried under vacuum for another 2 days to obtain the PEI-PO sample. Then the sample was dissolved in an absolute methanol/tetrahydrofuran mixture (volume ratio 1 : 1). Sodium methoxide/methanol solution (33 mg mL−1) was added and the mixture was charged in a 50 mL micro-autoclave (Senlong Company, Beijing, China) and deoxidized using pure nitrogen. Subsequently, the micro-autoclave was filled with NO gas until the pressure reached 0.55 MPa and was maintained for 3 days.19,20 After that, the crude product was washed with cold diethyl ether and methanol repeatedly at least 3 times. Finally, the PEI-PO-NONOate polymer was obtained and cryopreserved at −18 °C.
Fig. 1 Synthetic route of PEI-PO-NONOates.
Fourier transform infrared (FTIR) spectroscopy was used to study the changes in the structures of PEI, PEI-PO and PEI-PO-NONOates using a PE GX Fourier transform infrared spectrometer (PerkinElmer, Boston, MA, USA). The UV-vis absorption peak strength of [N(O–)N O]– at a wavelength of 250 nm was measured by immersing PEI-PO-NONOates in PBS (0.15 mg mL−1) using a UV-1800PC spectrophotometer (MAPADA, Shanghai, China). Subsequently, the chemical structures of PEI, PEI-PO and PEI-PO-NONOates were further determined by nuclear magnetic resonance (1H-NMR and 13C-NMR) in D2O using a 500 MHz NMR spectrometer (Bruker ARX 500, Germany).
where NOreleased, NOoriginal and NOresidual are the released, original and residual amounts of NO, respectively.
In order to evaluate the stability of PEI-PO-NONOates under specified storage conditions, certain amounts of samples were sealed in polypropylene containers and stored in an oven at 35 °C, in a refrigerating chamber at 4 °C and in a freezing chamber at −18 °C, respectively. At scheduled timepoints, the samples were dissolved in PBS. The amounts of residual NO were measured by the Griess reagent method.
where OD is the optical density value recorded using a microplate spectrofluorometer RT-6000 (Rayto, Shenzhen, China) and the subscripts (sample, control and blank) represent the sample groups, control groups and the blank groups, respectively.
All animal study protocols were reviewed and approved by the Animal Care Committee of Sun Yat-sen University, and the experiments were performed in accordance with the National Institutes of Health's guidelines for the use of experimental animals. Male BALB/c mice weighing 20 to 30 g were purchased from the Laboratory Animal Center of Sun Yat-Sen University. Six mice were anesthetized by intraperitoneal injection of pentobarbital sodium (50 mg kg−1). The dorsal portions of the mice were shaved and then the skin was sterilized with iodine followed by a rinse with 70% (vol/vol) ethanol. After that, the mice were placed on sterile sheets and the dorsal portion of the skin was pulled from the midline with tweezers. Full-thickness cutaneous wounds were created symmetrically on both sides using a Harris Uni-Core Punch (a 5.0 mm coring device, GE Healthcare, Piscataway, NJ, USA). Self-adhesive film dressings (SOFIT® 3000, Beijing, China) were applied for the wounds and the mice were then placed on a heating blanket until complete recovery.
Given the strong inhibition effect of NO upon coagulation,21 the treatment was started one day after wounding, allowing the formation of blood clots. The PEI-PO-NONOate polymer was mixed with PEG at a concentration of 5 mg mL−1 right before each treatment. The lesions on one side were treated with the PEI-PO-NONOate/PEG mixture whereas the wounds on the other side were subjected to PEG alone as the control.
where A is the percentage of wound closure, Apre is the wound area 1 day after wounding, and Apost is the wound area on days 7, 11 and 14 after wounding.
Three mice were sacrificed by cervical dislocation 7 days post wounding. The wounds and the adjacent normal skin were collected and fixed with 4% paraformaldehyde for histological examinations. Then the samples were subjected to hematoxylin–eosin (HE) staining to study the states of wound healing. Masson trichrome and Sirius Red staining were carried out to determine the synthesis and deposition of collagen. Meanwhile, immunohistochemical and immunofluorescence examinations were performed to investigate angiogenesis as determined by the expressions of CD31 and VEGF. The stained samples were surveyed and the images were obtained using a Nikon Eclipse TI-SR microscope with a DS-U3 image-capturing system (Nikon, Japan), or an Olympus BX51WI microscope with an UIS2 optical system (Olympus, Japan).
The results were calculated by averaging the data from multiple measurements and presented as mean ± standard deviations. A one-tailed unpaired t-test was used to analyze the statistical significance for a comparison of the results and the level of significance was set at p < 0.05.
Fig. 2 Chemical characterization of PEI-PO-NONOates. (A) FTIR spectra, (B) UV-vis curves, (C) 1H-NMR spectra and (D) 13C-NMR spectra of PEI, PEI-PO and PEI-PO-NONOates in D2O.
The UV-vis spectra of PEI, PEI-PO and PEI-PO-NONOates are shown in Fig. 2B. The absorbance at a wavelength of 250 nm was attributed to the specific peak of the [N(O–)N O]– group in PEI-PO-NONOates, which also verified the success of the synthesis. Fig. 2C shows the 1H-NMR spectra in D2O of the samples. In the spectrum of PEI, the resonance peak at 4.7 ppm represented the protons from the residual H2O while the multiple peaks at 2.7 ppm represented the hydrogen atoms in the methylene groups (–CH*2–). The addition of PO introduced the CH3 groups which presented the resonance peak at 1.1 ppm (–CH*3) while the –CH*(OH)CH3 groups showed the resonance peak at 3.6 ppm, and the OH groups showed the resonance peak at 3.8 ppm. Further reactions with NO did not introduce any new hydrogen-containing group but the changes in the chemical environment widened and shifted the resonance peaks of the existing groups which appeared at 1.8, 3.3, 4.2 and 8.4 ppm. The 13C-NMR spectra of the samples are shown in Fig. 2D. As compared to the 13C-NMR spectrum of PEI, the new peaks at 16.8 ppm and 20.4 ppm on the curve of PEI-PO reflected the existence of carbon atoms in the CH3 groups, and the difference in the chemical shifts was caused by the different sites on the branched PEI. The other two new peaks at 65.3 ppm and 66.2 ppm were due to the resonance of the carbon atom in the CH3C*H(OH)CH2– groups introduced by PO. Similar to the 1H-NMR spectra, the 13C-NMR of PEI-PO-NONOates did not exhibit any new resonance peak as compared to PEI-PO. However, the widening and the shifting of the resonance peaks can also be observed due to the changes in the chemical environments.
As a NO donor, high loading efficiency is one of the most outstanding properties of the PEI-PO-NONOate compound and the evaluation results are shown in Fig. 3. It was found that a total of 0.57 μmol NO was released from 1.0 mg PEI-PO-NONOates (Fig. 3A). Besides, around 65% of NO was released in the first hour when in contact with PBS of pH 7.4 while the remaining NO (35%) was released in the following 29 hours (Fig. 3B). Therefore, the releasing profile can be divided into two stages and a majority of NO was released in the first stage due to the hydrophilicity of the PEI structure and the water-soluble properties of the diazeniumdiolate structure. Under acidic conditions, 72% of NO was released within the first hour because the diazeniumdiolate structure decomposed rapidly in the acidic environment (Fig. 3B), which demonstrated a proton-driven release pattern.
Fig. 3 NO releasing profiles and stability of PEI-PO-NONOates. NO releasing profiles in (A) 0.1 mol L−1 PBS of pH7.4 at 35 °C, (B) 0.1 mol L−1 PBS of different pH values at 35 °C, and (C) in the PEG mixture system at 25 °C; and (D) stability evaluation of PEI-PO-NONOates under various storage conditions.
Furthermore, the PEI-PO-NONOate samples were mixed with polyethylene glycol (PEG, MW 400), which is one of the most widely used materials used for making ointments, in order to modulate their consistency for a smooth application on wounds. The NO releasing profile in the PEG mixture system at room temperature was also determined and the results were converted into micro mole per milligram (μmol mg−1) of net PEI-PO-NONOates (Fig. 3C). It displayed a much slower releasing pattern in the PEG mixture as compared to those in PBS. Within the first 12 hours, only about 0.4 μmol NO (70%) was released from 1.0 mg of net PEI-PO-NONOates when the rest of the 30% NO was released gradually in the following 24 hours. The difference obviously stems from the distinct releasing conditions. In PBS, the PEI-PO-NONOate samples dissolved and NO was released fast with the diazeniumdiolate structure decomposing quickly. However, the PEI-PO-NONOate samples did not dissolve in PEG and the decomposition of the diazeniumdiolate structure was much slower, resulting in the slow release of NO. The slow releasing profile of NO in the PEG mixture system is believed to be beneficial for wound healing because of the continuous biological effects as described below.
In order to evaluate the storage stability of the PEI-PO-NONOate compounds, three groups of PEI-PO-NONOate samples were sealed in vials and stored at 35 °C, 4 °C and −18 °C, respectively. It was found that the PEI-PO-NONOate samples remained stable in a cool, dry, and sealed environment for at least 7 days. However, higher ambient temperatures might cause the slow decomposition of diazeniumdiolates which was reflected in the slight decrease of the residual NO contents of the group stored at 35 °C (Fig. 3D).
Fig. 4 presents the results of the cytotoxicity assay of PEI, PEI-PO, and PEI-PO-NONOates against L929 cells after incubation for 24 hours. As the dosages ranged from 5 to 100 μg mL−1, PEI showed obvious dosage-dependent cytotoxicity while PEI-PO presented a certain degree of reduction in cytotoxicity. By contrast, PEI-PO-NONOates exhibited no significant cytotoxicity even at a high dosage of 100 μg mL−1. It is known that PEI, particularly with a high molecular weight (e.g., 70 kDa), exhibits cytotoxicity because of the destructive effect of its cationic property on the cell membrane.23,24 However, PEI with a low molecular weight (e.g., 600 Da) exerts a significantly lower cytotoxic effect.23,24 Furthermore, after being modified by the addition reaction with PO and NO gas, the cytotoxic effect of PEI-PO-NONOates was substantially reduced which ensured the potential of their application in vivo. These results also suggested the cytoprotective effect of NO.
Fig. 4 Cytotoxicity assay of PEI, PEI-PO, and PEI-PO-NONOates against L929 cells, * p < 0.05, ** p < 0.01.
The wound areas subjected to NO treatment were 0.167 ± 0.021 cm2, 0.087 ± 0.024 cm2, 0.037 ± 0.007 cm2, and 0.017 ± 0.021 cm2 on days 1, 7, 11, and 14 post-surgery, whereas those subjected to PEG as the control were 0.172 ± 0.014 cm2, 0.107 ± 0.015 cm2, 0.054 ± 0.006 cm2, and 0.019 ± 0.012 cm2, respectively (Fig. 5 and 6). The corresponding percentages of wound closure with NO treatment were 48.4 ± 10.5%, 77.1 ± 6.32%, and 88.6 ± 14.1% on days 7, 11, and 14 post-surgery, when those of the control group were 37.2 ± 13.6%, 68.7 ± 1.72%, and 88.9 ± 7.06%, respectively (Fig. 6). These results revealed an apparent tendency that NO treatment accelerated wound repair, although the difference did not achieve statistical significance at some time points. We speculated that these results may be derived from, at least in part, the relatively small wounds created by a punch of 5.0 mm in diameter in view of minimizing the suffering of experimental animals, resulting in a quick recovery trend, overlapping or covering up the therapeutic effect to some degree. This phenomenon was also observed in previous studies.25 Nonetheless, the histopathological experiments further validated and supported the beneficial effects of PEI-PO-NONOates upon wound healing which will be discussed subsequently.
Fig. 5 Nitric oxide accelerated wound healing. Representative images of wounds treated with PEI-PO-NONOates (A) 1, (B) 7, (C) 11, and (D) 14 days post-surgery; and the wounds of the control group (E) 1, (F) 7, (G) 11, and (H) 14 days post-surgery, respectively.
Fig. 6 Nitric oxide promoted wound closure. (A) Wound areas (cm2) and (B) wound closure (%) of treatment and control groups, * p < 0.05.
Granulation tissue formation, collagen deposition, and angiogenesis are critical processes in wound recovery, which can be promoted by the exogenous supply of NO.25–28 In this study, hematoxylin–eosin (HE), Masson trichrome and Sirius Red staining were employed to investigate the aforementioned processes. As shown in HE staining images, wounds subjected to PEI-PO-NONOate treatment presented better granulation tissue formation as compared to the control (Fig. 7A and D). Furthermore, Masson trichrome and Sirius Red staining images showed an evident enhanced deposition of collagen in a tight and ordered structure in the wounds treated with PEI-PO-NONOates (Fig. 7B and C). In contrast, collagen deposition in the wounds of the control group exhibited a lower density with a loose arrangement (Fig. 7E and F).
Fig. 7 Nitric oxide promoted granulation tissue formation and collagen deposition. Representative images of (A) HE, (B) Masson trichrome, and (C) Sirius Red staining of wounds treated with PEI-PO-NONOates 7 days after surgery, and images of (D) HE, (E) Masson trichrome, and (F) Sirius Red staining of control wounds 7 days after surgery. Scale bars indicate 50 μm.
Herein, the pro-angiogenesis effect of PEI-PO-NONOates was investigated by the immunohistochemical and immunofluorescence staining of VEGF as the cytokine which promotes neovascularization and CD31 as the biomarker of vascular endothelial cells.29,31 As shown in Fig. 8 and 9, the immunohistochemical and fluorescence images indicated an incremental expression level of both VEGF and CD31 in wounds subjected to PEI-PO-NONOates as compared to the control. These results demonstrated the effects of the PEI-PO-NONOate polymer on promoting VEGF expression and subsequent new vessel development.
Fig. 8 Nitric oxide promoted VEGF expression. (A) VEGF, (B) DAPI, and (C) merged fluorescence images, and (D) immunohistochemical staining of VEGF of samples treated with PEI-PO-NONOates; (E) VEGF, (F) DAPI, and (G) merged fluorescence images, and (H) immunohistochemical staining of VEGF of samples of the control group. Scale cars indicate 50 μm.
Fig. 9 Nitric oxide promoted angiogenesis as indicated by CD31 expression. (A) CD31, (B) DAPI, and (C) merged fluorescence images, and (D) immunohistochemical staining of CD31 of samples treated with PEI-PO-NONOates; (E) CD31, (F) DAPI, and (G) merged fluorescence images, and (H) immunohistochemical staining of CD31 of samples of the control group. Scale cars indicate 50 μm.
In summary, a novel polyethylenimine based diazeniumdiolate nitric oxide donor (PEI-PO-NONOate) with a high loading efficiency (0.57 μmol NO per 1.0 mg polymer) was designed, prepared and characterized. The PEI-PO-NONOate polymer was stable under anhydrous and sealed conditions with a wide range of temperatures. It presented proton-driven releasing profiles in PBS and displayed a controlled and slow releasing pattern sustaining for over 30 hours in the PEG mixture system. The cytotoxicity analysis indicated that PEI-PO-NONOates exhibited good biocompatibility. The effect of PEI-PO-NONOates on promoting wound healing was investigated on full-thickness excisional cutaneous wound models of mice. The results demonstrated that PEI-PO-NONOates promoted cutaneous wound healing and closure with enhanced granulation tissue formation, collagen deposition, and angiogenesis. Our work demonstrated the great potential of the PEI-PO-NONOate polymer as a nitric oxide donor for the acceleration of cutaneous wound healing. Further investigation is warranted for the determination of the optimal polymer compositions and delivery algorithms.
This work is supported in part by the Ph.D. Programs Foundation of Ministry of Education of China (20130171110044), the National Natural Science Foundation of China (81671792), the National Key R&D program of China (2016YFC0104100), the Overseas Study Program of Guangzhou Elite Project (GEP, 11YB18), the Medical Scientific Research Foundation of Guangdong Province of China (A2017025), the Fundamental Research Funds for the Central Universities and the Natural Science Foundation of Guangdong Province of China (2018A030310285). This work is also a part of the Project Funded by the Priority Academic Program Development of Jiangsu Higher Education Institutions (PAPD).
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William C. Chanler, New York City (Winthrop, Stimson, Putnam & Roberts, New York City, Johnston, McCall & Johnston, Samuel M. Johnston, and Dan T. McCall, Jr., Mobile, Ala., Elliott E. Vose, Gerard Thomas, and William W. Karatz, Natchitoches, La., on the brief), for petitioner, Mobile Gas Service Corp.
William J. Grove, Washington, D. C. (Willard W. Gatchell, Gen. Counsel, Washington, D. C., Louis L. DaPra, Washington, D. C., Louis C. Kaplan, Rogers Heights, Md., Sherman S. Poland, Washington, D. C., on the brief), for respondent, Federal Power Commission.
Thomas Fletcher, Houston, Tex. (Wilbert O. Crain, Gen. Counsel, George D. Fiser, Shreveport, La., Vinson, Elkins, Weems & Searls, William T. Fleming, Jr., Houston, Tex., Wilkinson, Lewis & Wilkinson and C. Huffman Lewis, Shreveport, La., on the brief), for intervener, United Gas Pipe Line Co.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
In this proceeding to review an order of the Federal Power Commission the basic question is whether the Commission is correct in holding that under the Natural Gas Act1 a natural gas company can in effect wipe out a filed rate contract simply by filing an increased rate schedule. Substantially that is what the Commission considers to have happened to petitioner's contract with intervener.
Mobile Gas Service Corporation, the petitioner, is an Alabama distributor of natural gas. It receives its entire supply of that fuel from the intervener, United Gas Pipe Line Company, a Delaware corporation.2 By a 1936 contract between it and United's predecessor and an agreement entered into in 1941 with United itself certain of Mobile's gas for resale industrially was to be supplied by United for 90% of Mobile's gross resale revenues. The contract provided that the gas was not to be resold industrially for less than 16¢ per MCF (1,000 cubic feet) without United's consent. This agreement as amended by the 1941 contract was to continue in effect until 1962. Both contracts were filed with the Commission and became United's Gas Rate Schedule No. 20 and Supplement to that Schedule No. 7.
On June 24, 1953, United filed with the Commission proposed increased rates, including a rate of 14.5¢ per MCF for industrial use gas for Mobile. On July 10, 1953, the Commission ordered a hearing on the lawfulness of those rates, suspended them pending the hearing with the exception of the new Mobile rate, and ordered that hearing to be consolidated with an earlier proceeding investigating all of United's rates. The new rate for Mobile being for industrial use was not subject to suspension under Section 4(e) of the Act. As a result it became operative July 25, 1953. Mobile, on July 16, 1953, attempted to intervene in the consolidated proceeding. On August 4, 1953, it filed a petition with the Commission setting up the above situation and asking the Commission to amend its order of July 10 so that United's new filing in so far as it affected the Ideal contract would be rejected and the 14.5¢ rate would not be permitted to take effect. In the alternative it requested a hearing on the lawfulness of the filing of that rate and asked that if Mobile was obligated to pay United the increased rate, United be directed to hold those payments subject to refund to Mobile in the event the new rate was ultimately determined to be unlawful. At that stage no action had been taken on Mobile's application to intervene and the new rate had been governing since July 25th. As a consequence Mobile amended its petition and urged the Commission that it be made a separate cause. That prayer was granted as was United's later petition to intervene in the new proceeding. On December 7, 1953 the Commission on the pleadings denied the prayers of Mobile's petition and dismissed it. On February 4, 1954, the Commission refused rehearing to Mobile. This petition for review of the Commission's decision followed.
Mobile's main point is that its United contract with respect to Ideal is a valid agreement which cannot be set aside by United's unilateral action of filing an increased rate schedule. It frankly recognizes the Commission's paramount authority and concedes that if after a proper proceeding the Commission found the contract rate to be against the public interest it could modify it or set it aside entirely.
The Commission contends that where a natural gas company files a rate schedule under 4(d) of the Act that rate is to be charged unless suspended initially or disapproved finally by the Commission after investigation and hearing; rates for industrial use not being subject to suspension when filed become effective thirty days thereafter until finally passed upon by the Commission. The latter insists that even where as here the rate conflicts with an admittedly preexisting filed contract the distributor is given no chance to defend its contract, on which it has made approved commitments, before that contract is to all practical purposes abrogated.
"* * * At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the natural-gas company, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible."
In other words if in the pending hearing United can show that its new filed rate for Mobile is reasonable that ends the matter and the new rate stands. No consideration will be given to the accepted contract, the circumstances under which it was entered into, the long term commitments sanctioned by the Commission and whether the rate fixed by it is unreasonable and against the public interest under the facts. What petitioner is endeavoring to do is have its contract passed upon in the first instance prior to authorization for filing of United's new rate and the consideration of whether that rate is currently reasonable.
The Commission maintains that 4(d) of the Act4 upholds its stand. That section provides, as far as we are primarily concerned, that "no change shall be made by any natural-gas company in any such rate * * * or contract relating thereto, except after thirty days' notice to the Commission and to the public." (Emphasis supplied.) This means, according to the Commission, that since under 4(e) it does not have the power to suspend an industrial use gas rate, United can fundamentally cancel the Mobile contract despite the fact that as of now Mobile is bound for its duration to Ideal, subject only to the Commission later passing finally upon the rate. And in the Commission thought this can take place without any statutory notice to Mobile or an opportunity for Mobile to be heard regarding its contract rate. The practical result of this is that Mobile in living up to its contract with Ideal is supplying natural gas to that company for 12¢ per MCF and may well be forced to continue to do so until the expiration of its contract in 1956. Meanwhile Mobile must pay United 14.5¢ per MCF for the same gas it delivers to Ideal though its contract with United has never been questioned by the Federal Power Commission or in any way construed to be against the public interest.
The Commission and intervener rely to a large extent upon Union Dry Goods Co. v. Georgia P. S. Corp., 1919, 248 U.S. 372, 39 S. Ct. 117, 63 L. Ed. 309, and Midland Realty Co. v. Kansas City Power & Light Co., 1937, 300 U.S. 109, 57 S. Ct. 345, 81 L. Ed. 540. The first case is quoted by the Commission as holding in 248 U.S. at page 375, 39 S. Ct. at page 118: "That private contract rights must yield to the public welfare, where the latter is appropriately declared and defined and the two conflict, has been often decided by this court." The principle stated is of course sound law and is expressly uncontroverted by petitioner. In the Union litigation there had been a hearing before the Georgia Commission on the question of the reasonableness of the contract rates. The Commission found that they were unlawfully discriminatory. Here, as we have seen, Mobile had no opportunity to defend the contract rate prior to the new rate coming into being.
Midland does lend some support to the position of the Commission and the intervener. But there the rates filed by the utility were not opposed and were permitted by the Missouri Utility Commission without hearing.5 Far more important than that the decision is based upon a state court interpretation of a state statute. The question litigated and passed upon was whether a Missouri statute as construed by the Missouri Supreme Court violated the federal constitution. That sort of problem is not presented in this action.
"* * * The passage of the act did not automatically overthrow contracts, nor set aside schedules of rates which had been agreed upon. Neither did the fact that the defendant published and filed a schedule of rates with the public utilities commission abrogate the contract. In any event, rates previously agreed upon between utilities and patrons will continue in force until the commission has found them to be unreasonable and has prescribed other rates."
"Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order: Provided, however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discriminatory, preferential, otherwise unlawful, or are not the lowest reasonable rates."
Section 5(a) was before the Tenth Circuit in Colorado Interstate Gas Co. v. Federal Power Commission, 1944, 142 F.2d 943, 954, affirmed 1945, 324 U.S. 581, 65 S. Ct. 829, 89 L. Ed. 1206. In that case on complaint of the City and County of Denver and the State of Wyoming the Commission held that existing rates and contracts were unreasonable. The gas companies claimed that the finding was not founded on substantial evidence.
"* * * The passage of the Act did not automatically overthrow the contracts into which these companies had previously entered. Neither did it ipso facto set aside the schedules of charges upon which they had agreed. Such rates and charges could be modified only after an express finding of unreasonableness. Wichita R. & Light Co. v. Public Utilities Commission, 260 U.S. 48, 43 S. Ct. 51, 67 L. Ed. 124; Allen W. Hinkel Dry Goods Co. v. Wichison Industrial Gas Co., 10 Cir., 64 F.2d 881. And the right of the Commission to make a finding of unreasonableness depends upon the existence of the fact. In the absence of substantial evidence to show that the rates and charges in existence are unreasonable, a finding to that effect constitutes the arbitrary exercise of power by administrative fiat and cannot stand. Interstate Commerce Commission v. Louisville & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 L. Ed. 431."
"* * * We find nothing in the Federal Water Power Act justifying such an interpretation. Neither it, nor the license issued under it, expressly abolishes any existing proprietary rights to use waters of the Niagara River. * * * On the contrary, the plan of the Act is one of reasonable regulation of the use of navigable waters, coupled with encouragement of their development as power projects by private parties."
So here, the Natural Gas Act does not expressly permit existing contract rights to be abolished by a mere unilateral filing of new rates. The plan of the Natural Gas Act is likewise one of reasonable regulation, as evidenced by the fact that the Commission itself cannot change an existing contract rate under Section 5 (a) without first finding that such rates are unreasonable.
"* * * a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory."
See Shaw v. Railroad Co., 1879, 101 U.S. 557, 565, 25 L. Ed. 892; American District Telegraph Co. v. Kittleson, 8 Cir., 1950, 179 F.2d 946, 953; 3 Sutherland, Statutes and Statutory Construction (3rd ed. 1943) 164-182.
Nor is a rate contract automatically nullified merely because the return is low. In this instance there seems no doubt but that the Ideal Cement account represented important new business to Mobile and to United and that the long range price concession was made in order to obtain it. Cf. Arkansas Natural Gas Co. v. Arkansas Railroad Commission, 1923, 261 U.S. 379, 43 S. Ct. 387, 67 L. Ed. 705; Wichita Railroad & Light Co. v. Court of Industrial Relations, 1923, 113 Kan. 217, 214 P. 797. And the fact that the Commission can change the contract does not render it void for lack of mutuality. Southern Utilities Co. v. City of Palatka, 1925, 268 U.S. 232, 45 S. Ct. 488, 69 L. Ed. 930; Hinkel Dry Goods Co. v. Wichison Industrial Gas Co., 10 Cir., 1933, 64 F.2d 881.
"Mr. Halleck. Of course, it is your idea that if this bill should pass and the Commission be given the authority contemplated in this bill, that the contract could be superseded or invalidated insofar as attempt to fix the rates of charges is concerned?
Hearings, House Committee on Interstate and Foreign Commerce, 75th Cong. 1st Sess., on H.R. 4008, at page 43.
"The reports of the Federal Trade Commission on the natural-gas industry abound with references and data concerning the contracts of gas companies most of them for long terms. It was at the time of the passage of the Act, and is now, a common and usual practice for such gas companies to contract for all sales or transportation of natural gas. Those companies which sold otherwise were exceptions."
The Commission also makes much of the provision in Section 4(e) which prohibits the Commission from suspending rates for the sale of natural gas for resale for industrial use. The purpose of this provision, however, as stated by the Congressman who introduced the amendment, was "to prevent suspension in cases of industrial use where there are short term contracts * * *."15 (Emphasis supplied.) The clear implication is that Congress saw no purpose in temporarily protecting purchasers who had agreed contractually to an increase in rates. The implication is equally clear that Congress did not visualize the present circumstances where one of the contracting parties is attempting under the cover of the Act to avoid its contractual duties.
In view of the above language in the Commission's own Regulations and of the complete absence of suggestion in the statute or in the legislative history that the Act was intended to authorize the abrogation of existing contract rights by means of the unilateral substituted rate procedure, we hold that the Commission erred in not rejecting United's Revised Sheets Nos. 39 and 40 in so far as they affected the Ideal contract. To do otherwise would be an attempt by us to legislate judicially since the construction of 4(d) as contended for by the Commission and the intervener is not warranted by the statutory language. F.P.C. v. Niagara Mohawk Power Corp., supra. Any changes in 4(d), particularly of the radical nature urged, would be for the consideration of the Congress, not for this court.
With this holding it becomes unnecessary for us to consider Mobile's alternative contention that even if the revised schedule be accepted for filing a subsequent separate hearing be held on the lawfulness of the filing at which time the reasonableness of the prior contract rate would be passed upon. Nor do we reach Mobile's contention that the Commission should have ordered under Section 4(e) that any monies collected after the acceptance of such filing be held subject to refund. Since we are specifically holding that the pertinent part of the order of July 10, 1953 was void because the Commission had no right to accept the filing of the new schedule without first determining the reasonableness or unreasonableness of the existing contract rates any monies, if any, collected on the basis of the erroneous order were unlawfully collected and should be returned to Mobile. Baltimore & O. R. Co. v. United States, 1929, 279 U.S. 781, 49 S. Ct. 492, 73 L. Ed. 954; Restatement, Restitution, Section 74 (1937); cf. Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co., 1919, 249 U.S. 134, 39 S. Ct. 237, 63 L. Ed. 517.
Those parts of the Commission's order which dismissed Mobile's petition and which denied Mobile's request that the order of July 10, 1953 be amended to reject the filing of the Revised Sheets in so far as they affected the Ideal contract and which rejected Mobile's request for the Commission to issue an order amending Paragraph D of its order of July 10, 1953, which paragraph permitted the revised schedule to take effect, will be reversed.
The Commission's order of July 10, 1953 was lawful and proper under the terms and scheme of the Natural Gas Act. This court now is requiring that order to be changed in a way which, in my view, causes the Commission to exceed its authority under the Act. Accordingly, I dissent.
In that suit there was a denial of an application for an injunction to prevent United from moving before the Commission for permission to collect its new rate for domestic use gas until the reasonableness of that rate had been finally determined by the Commission. There was a contract involved but it had already been modified in what seems to have been an adversary proceeding. According to the opinion of the district judge the "* * * plaintiffs concede that the Commission on final hearing may fix the rates at a figure which it determines to be reasonable, which may be at variance with and in complete disregard of the contract rates, * * *." The all important question before us of whether there should be a hearing on the reasonableness of an existent unchanged approved contract prior to the acceptance for consideration of the new rate and prior to the determination of the reasonableness of that new rate was not before the court.
It should be emphasized also that the fact that Tyler concerned a rate for sale of gas for domestic use of itself sets that action apart from the issue of this appeal. In Tyler under Section 4 (e) the Commission could and did suspend the effective dates of the increased rates for five months after which period it could order any subsequent collections to be held subject to refund in the event the new rates were ultimately found to be unlawful.
"Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days' notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published."
"There are the usual provisions. Without attempting to go into detail, what I call usual provisions are those such as we find in all regulatory measures enacted by the Congress. This bill contains, for instance, administrative provisions; for rules affecting just and reasonable rates; for the power of the Commission to fix maximum or minimum rates or a specific rate after hearing; for the rule against discriminations and preferences as between consumers or localities; for the requirement that the schedules be kept open for public inspection; for the power of the Commission to suspend the rates where deemed unduly high. The bill covers the question of accounting, following standard lines; of giving the Commission the power to control the accounts, including the depreciation account; and of requiring the gas companies under the regulation of this bill to conform to those accounting practices.
"The bill makes provision for complaints and provides for hearings and has the usual provisions in reference to the production of testimony and rehearings by the Commission on petition, court review of the orders of the Commission, and, a rule, that the findings of the Commission, if supported by substantial testimony, are conclusive upon courts in connection with questions that may be taken to courts.
"Those are what might be called the principal provisions of the bill."
"Mr. Mapes: Mr. Chairman, as far as I know, there is no opposition to this bill. I do not know of any member of the House or anyone else who opposes it. It is supported by the public utility commissions of the States and by all public bodies, as far as I know, who have anything to do with or have given any particular attention to the question of the distribution and sale of natural gas to the consuming public. As a matter of fact, my attention has not been called to any opposition to it, even on the part of the gas companies themselves."
"Section 154.24 Rejection of material submitted for filing. The Commission reserves the right to reject any material submitted for filing which fails to comply with the requirements set forth in this part [Section 154]."

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§ 100.010 Citation of Code.
§ 100.020 Definitions and Rules of Construction.
§ 100.030 Administrative Copies of Code.
§ 100.040 Approval of Reprints or Digests Purporting to Give Law.
§ 100.050 Codification of Municipal Ordinances, Contents — Supplements Authorized — Code to Be Evidence in All Courts.
§ 100.060 Effect of Amendments to Code.
§ 100.070 Catchlines of Sections.
§ 100.090 Interpretation of Code.
§ 100.100 Passage of Ordinances.
§ 100.110 Form of Ordinances.
§ 100.120 Numbering of Sections in Ordinances.
§ 100.130 Effective Date of Ordinances.
§ 100.150 General Penalty — Continuing Violations.
§ 100.160 Amendment of Section for Which Specific Penalty Not Provided.
§ 100.170 Disposition of Fines and Costs Collected for Violations.
Section 100.010 Citation of Code.
Section 100.020 Definitions and Rules of Construction.
Section 100.030 Administrative Copies of Code.
Section 100.040 Approval of Reprints or Digests Purporting to Give Law.
Section 100.050 Codification of Municipal Ordinances, Contents — Supplements Authorized — Code to Be Evidence in All Courts.
Section 100.060 Effect of Amendments to Code.
Section 100.070 Catchlines of Sections.
Section 100.090 Interpretation of Code.
Section 100.100 Passage of Ordinances.
Section 100.110 Form of Ordinances.
Section 100.120 Numbering of Sections in Ordinances.
Section 100.130 Effective Date of Ordinances.
Section 100.150 General Penalty — Continuing Violations.
Section 100.160 Amendment of Section for Which Specific Penalty Not Provided.
Section 100.170 Disposition of Fines and Costs Collected for Violations.