- Dealing with the Mandates
Lawdragon occasionally draws attention to a new book in the legal world, and this time it’s The New Health Care Reform Law: What Employers Need to Know (A Q&A Guide), written by Proskauer lawyers Paul Hamburger and James Napoli. Hamburger is a partner and head of the firm’s Employee Benefits, Executive Compensation and ERISA Litigation Practice Center, while Napoli is senior counsel in the group. The lawyers also lead the firm’s Health Care Reform Task Force, a multi-practice-group team designed to help employers keep track of deadlines and comply with all the provisions.
Avid readers may recall we did a Q&A Lawyer Limelight with Hamburger earlier this year. He had recently joined the firm from McDermott Will & Emery with a team of lawyers to establish an employee-benefits presence for Proskauer in DC. In the press release announcing the book, Hamburger said: “This book is a natural extension of the Task Force’s efforts to help managers make well-informed, strategic decisions for their companies and employees as the new health care regulations take effect.”
|
|
| 08:10 AM Aug 27, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Major Setback for Feds
Not surprisingly, one can look to the Chicago Tribune for a comprehensive set of stories on the failed trial of former Illinois Gov. Rod Blagojevich, who was found guilty on just one charge – lying to the FBI – with the federal jury deadlocking on the remaining 23 counts. The paper points out in its main news story that Blago and his attorneys used the verdict to taunt 2010 Lawdragon 500 member Patrick Fitzgerald, the U.S. attorney in Chicago. Defense attorney Sam Adam Sr. did not mince words: "This guy Fitzgerald is a master at indicting people for noncriminal activity.” He called the prosecutor “nuts.” The other defense attorney, Sam Adam Jr., chimed in: “We didn't even put a defense on, and the government couldn't prove his case."
Both sides, the paper points out, are already preparing for the retrial. Fitzgerald did not reply to the taunts, and instead said that “for all practical purposes, we are in the mode of being close to jury selection for a retrial.” Blago, meanwhile, is looking forward to proving that he is innocent of lying to the FBI.
As part of its package, the Tribune also runs a story based on juror interviews. Apparently, they came as close to 11-1 on several counts, but were more evenly split on others. One guy said he would have convicted on all counts. Another juror who is in college studying criminal justice, said the government’s case was too confusing: "They didn't follow a timeline. They jumped around."
|
|
| 05:18 AM Aug 18, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Problems with Gitmo Evidence
For the first time, the National Law Journal has partnered with non-profit investigative news organization ProPublica. The esteemed pair has co-published an in-depth article about the problems the federal government is having with evidence obtained from Guantanamo Bay detainees through questionable interrogation tactics. According to ProPublica’s review of decisions resolving lawsuits filed by detainees: “The government has lost eight of 15 cases in which Guantanamo inmates have said they or witnesses against them were forcibly interrogated. “ The article concludes that in the seven cases won by the government, it wasn’t because the judges endorsed aggressive tactics but because “the detainees' stories of abuse simply weren't credible or were irrelevant to the outcome.”
ProPublica reporter Chisun Lee explains that judges are even rejecting evidence in “clean,” non-coercive interrogations on the grounds that fear generated in harsher sessions tainted the so-called clean sessions in preparation for trials. The Obama administration is appealing to the D.C. Circuit in five cases.
Lee’s article is a helpful summary of the broader issue and contains interesting tidbits from specific rulings in a number of cases.
|
|
| 08:53 AM Aug 16, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- New Orleans to Get Spill Cases
The U.S. Judicial Panel on Multidistrict Litigation has given the BP oil spill cases to U.S. District Judge Carl Barbier in New Orleans. The panel reasoned in its order that New Orleans was the “geographic and psychological center of gravity" for the group of actions that include suits for wrongful death, economic damage and environmental damage. According to the National Law Journal story, there are 77 actions so far and “more than 200 potential tag-along cases” with additional defendants like Halliburton and Transocean.
Earlier this month, news reports covered the MDL panel hearing in Boise as lawyers from around the country argued for different venues. Lawdragon 500 member Russ Herman, of New Orleans' Herman Herman Katz & Cotlar, was one of those who pushed for New Orleans. Interestingly, Barbier is the judge who earlier had refused to recuse himself from spill cases despite previously having corporate bonds issued by Halliburton and Transocean. The 5th Circuit last month declined to order him to recuse himself.
The Times' story refers to the order as “a significant defeat for BP” and the other defendants because they had wanted the cases consolidated in BP’s Houston base, which may have been a more defendant-friendly environment. The MDL panel in a separate decision, however, chose Houston as its venue for the consolidation of claims by BP shareholders. The judge there will be U.S. District Judge Keith Ellison.
|
|
| 06:11 AM Aug 11, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Feds Pursue Cycling Case
Get ready for a possible ruining of one of the most impressive and heartwarming sports accomplishments in modern history. The New York Times reports that federal authorities have intensified their criminal investigation into Lance Armstrong’s alleged doping activities. Apparently, this goes beyond Floyd Landis’ public claims made earlier this year, as the feds have now talked to many former Armstrong teammates and associates, some of whom have gone before the grand jury in Los Angeles. The person in charge of the case is FDA agent Jeff Novitzky, also the lead investigtor in the BALCO steroids case.
According to the Times, the criminal theory behind the case is that Armstrong and his team may have “conspired to defraud their sponsors by doping to improve their performance and win more money and prizes.” Armstrong continues to deny any doping. His lawyer is Bryan Daly, a former federal prosecutor who co-chairs the white collar group at Shepphard Mullin. Daly also has been a Finalist for one of our Lawdragon 500 guides.
Daly said he was concerned that the feds were “ caught up in the pursuit of a celebrity to catch him in a lie.” A 10-year statute of limitations will run out next year on some of the charges.
|
|
| 06:51 AM Aug 5, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Time to Find a Venue
Not surprisingly, the MDL meeting in Boise to discuss where to consolidate the federal oil-spill cases against BP and other likely defendants was well attended by members of our 2010 Lawdragon 500 guide. For example, Elizabeth Cabraser, who also worked on the Exxon Valdez case, told the panel judges that she felt the cases should be heard in Gulfport, Miss. According to the story in the New York Times, 23 lawyers made presentations over 90 minutes about where they think the cases should wind up – “the judicial equivalent of speed dating.”
New Orleans lawyer Russ Herman made an argument in favor of holding cases in his home state, which he said has suffered the most. “You have the opportunity to focus the world and the country on the disaster, so it will not happen again — and assist us,” he told the panel. Texas lawyer Mark Lanier is one of several lawyers favoring Houston. Herman told a reporter on scene that Lanier was one of the best lawyers in the country and that he was “going to be so happy to see him ply his trade in Louisiana.”
|
|
| 04:59 AM Jul 30, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Conservative, Liberal and Justice Roberts
The NY Times ran an interesting and lengthy analysis of the Roberts Court on Sunday, including a computer analysis that purports to show the court is the "Most Conservative in Decades.”
It brought to mind the quotation of Andrew Lang about the drunken man who used a lamppost for support, rather than illumination.
According to the Times, “In [the five years since John G. Roberts Jr. replaced Chief Justice William Rehnquist], the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”
The report offers interesting reflections from Justice John Paul Stevens as well as Justice Sandra Day O’Connor on changes they have seen in the court. It also highlights the political reality that all the recent replacements have been a zero-sum game except for Justice Samuel Alito’s replacement of O’Connor. O’Connor was a Westerner who had served in a variety of representative capacities before taking the bench, as opposed to the Easterners who have primarily ascended to the bench from the ranks of the judiciary in recent years.
The report undercuts itself a bit, boldly anchoring its Sunday front page with the pronouncement on the conservatism of the Roberts’ court, while noting well inside that, “the rightward shift is modest.”
The bigger problem, however, is the Times’ reliance on a bi-modal analytic model – assigning a value of either ‘conservative’ or ‘liberal’ to Supreme Court decisions and votes of individual justices.
The piece relies on a database created by Harold J. Spaeth with the support of the National Science Foundation. A link to the Judicial Research Initiative at the University of South Carolina is here.
The database assigns a value of “liberal” to votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights. It assigns a value of “conservative” to decisions striking down economic regulations and favoring prosecutors, employers and the government. The approach may shed some dim light, but seems particularly out of step with justices capable of tremendous nuance, who bear little resemblance to their “liberal” or “conservative” forbears. No moment is given to the selection of the docket, or its shifting nature, including the plentiful business cases that now populate it, among many other issues.
Few would dispute that Justice Roberts is conservative, however, the texture of that conservatism is no more apparent after reading the Times.
So with the power of the NY Times, and the nation's best computer modeling on the Supreme Court, what have we learned?
That when the Republicans control the White House and Supreme Court appointments, the court becomes more conservative, and, presumably, when Democrats do, it becomes less so. We officially learned that the Supreme Court under Chief Justice Roberts is conservative (for those who hadn't noticed), but we also learned that a simplistic analysis of whether an opinion or decision is “conservative” or “liberal” is reductionist and possibly a disservice to the Supreme Court and its justices.
For a take with more breadth, it’s worth the time to read Akin Gump’s estimable Tom Goldstein, who used a rather finer trowel in his own analysis a month back.
Among his conclusions, “[I]t is inaccurate to describe the Court as methodically on the march to the right.” And, “[M]y point is that the broad brush with which the Court is frequently characterized tends to obscure rather than illuminate. It is a far more complicated institution.”
|
|
| 04:37 PM Jul 26, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- MGA Triumphs over Mattel
MGA Entertainment won a huge appellate victory over Mattel Thursday, reclaiming the rights to the popular Bratz doll line.
Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski overturned a lower court decision that essentially transferred rights in the Bratz line of dolls to Mattel, finding that “America thrives on competition; Barbie, the all-American girl, will too.”
Thomas J. Nolan of Skadden Arps, who represented MGA, said the decision is an important one for the creative community, as well as copyright law and contract interpretation. He also credited Isaac Larian, the CEO of MGA, for standing behind his company’s claim to the Bratz dolls.
“I’m doing very well today,” said Nolan, who tried the underlying case against John Quinn of Quinn Emanuel, who represented Mattel. “We believe the 9th Circuit got it right in finding that MGA took a risk on and stood behind the Bratz dolls, and that Mattel has no claim to those properties.”
Kozinski, in his ruling, agreed with that assessment, saying, “Even assuming that MGA took some ideas wrongfully, it added tremendous value by turning the ideas into products and, eventually, a popular and highly profitable brand. The value added by MGA’s hard work and creativity dwarfs the value of the original ideas [Carter Bryant, who conceived the dolls while working at Mattel] brought with him, even recognizing the significance of those ideas.”
Bratz are the wildly popular dolls that morph the 39-18-34 measurements of lovely Barbie, the doyenne of 1950s America, into a decidedly new millennium contraption with a bobblehead and oversized lips and facial features, but spindly anatomy.
They were the brainchild of Bryant, who worked at Mattel designing fashion and hair styles for high-end Barbies. In August 2000, he pitched his idea for the Bratz line to two MGA employees, with a follow-up meeting with Larian. Shortly after he met with Larian, he signed a consulting agreement with MGA and gave notice at Mattel.
When Mattel found out that Bryant had taken his idea to MGA, it sued, claiming ownership of the Bratz line.
While the lower court jury in Riverside found against Bryant and MGA, it awarded Mattel just $10 million of the $1 billion in copyright damages it sought.
However, Judge Stephen Larson also granted Mattel a wide-ranging constructive trust on the Bratz properties that essentially transferred the Bratz trademark portfolio to Mattel. He also enjoined MGA from producing or marketing virtually every Bratz female fashion doll.
In a potentially important elucidation of copyright law, Kozinski found that any copyright claim Mattel had to the sketches and a sculpt Bryant rendered while in its employ did not extend to the fundamental idea of a bratty doll.
“Otherwise, the first person to express any idea would have a monopoly over it. Degas can’t prohibit other artists from painting ballerinas, and Charlaine Harris can’t stop Stephanie Meyer from publishing Twilight just because Sookie came first. Similarly, MGA was free to look at Bryant’s sketches and say, “Good idea! We want to create bratty dolls too!”
Mattel has allegedly spent more than $200 million in legal fees pursuing its claims to the Bratz doll line, reopening the long running question of the company’s litigation tactics. To some, the case was reminiscent of Mattel v. Walking Mountain Productions, in which the global toy company sought to enjoin a Utah artist’s renderings of Barbie with kitchen appliances in 78 photos titled “Food Chain Barbie.” Mattel was sanctioned $1.6 million in that case.
Kozinski remanded the case to the trial court. Judge David Carter will oversee the next stage of the litigation.
Kozinski was joined in his decision by Judges Stephen Trott and Kim McLane Wardlaw.
Joshua Rosenkranz of Orrick also represented MGA on appeal. Daniel Collins of Munger Tolles joined Quinn in representing Mattel.
|
|
| 10:22 AM Jul 23, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- No Charges in U.S. Attorney Probe
Predictably, the questionable removal of U.S. attorneys for political reasons is not going to result in criminal charges for any of the people responsible. Special prosecutor Nora Dannehy led the nearly two-year probe that involved FBI agents interviewing 60 people, according to the National Law Journal story. Dannehy’s investigation focused on the removal of David Iglesias, who had been the U.S. attorney in New Mexico, and on statements about his firing made by then-Attorney General Alberto Gonzales and his chief of staff to Congress and the Justice Department.
Assistant Attorney General Ronald Weich explained in a letter to House Judiciary Chairman John Conyers that “Dannehy concluded that there was insufficient evidence to establish that persons knowingly made material false statements to OIG and OPR or Congress or corruptly endeavored to obstruct justice.” Conyers nevertheless then issued a statement in response saying that the letter “reaffirms DOJ’s prior finding that Alberto Gonzales and Kyle Sampson made 'inaccurate and misleading' statements,” only that there was insufficient evidence for pursuing a criminal case.
Perhaps more light will be shed on this topic by an upcoming documentary called InJustice, which is currently in production.
|
|
| 10:49 AM Jul 22, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Calif. High Court Chief to Step Down
The Los Angeles Times has reported that California Supreme Court Chief Justice Ronald George, a perennial member of our Lawdragon 500 guides, plans to retire at the start of next year – while he is still "in the prime of physical and mental health." George is now 70 years old and has served as chief judge for 14 years. He recently is best known for his May 2008 ruling allowing gays to marry, which voters later reject in the Prop. 8 ban. The Times’ Maura Dolan notes that George, a moderate Republican, was often the swing vote deciding whether the conservative or liberal holding would prevail, and he also oversaw important administrative reforms for the state court system, such as transferring the courts from county to state judiciary control.
George’s decision surprised his colleagues. He is likely to be remembered as one of the top judges in the state’s history. He made his decision to improve his quality life and spend more time with his family. He said of his administrative burdens: "It was getting difficult to get more than five minutes of pleasure reading before I went to bed.” Gov. Arnold Schwarzenegger will appoint a new chief justice in the next few months.
|
|
| 07:05 AM Jul 15, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Another Twist in Gay-Marriage Fight
Much of the attention on gay-marriage battles in the courts has been focused on the Proposition 8 case in San Francisco federal court, including some of our own coverage here when we posted the transcripts of the trial. Now comes the ruling by U.S. District Judge Joseph Tauro, a veteran judge in Boston, that the Defense of Marriage Act violates the Constitution by intruding “on a core area of state sovereignty, the ability to define the marital status of its citizen,” according to the Boston Globe story.
One of the court challenges was brought by Massachusetts AG Martha Coakley, who said the decision will allow the state’s 16,000 married same-sex couples to get federal benefits received by married heterosexuals. The Globe story notes that both sides of the issue expect the Obama administration’s Justice Department to appeal the decision and that the matter will ultimately go to the Supreme Court.
A helpful reference on the gay-marriage issue is the article written for us by Todd Solomon and Brian Tiemann of McDermott, Will & Emery, who summarized the different legislation going on in the states related to same-sex unions and benefits.
|
|
| 12:08 PM Jul 9, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Celador Prevails Over Disney
A federal jury in California this week slammed Walt Disney Co. with a $269.2M verdict in favor of British TV production company Celador International over Disney’s once-popular TV game show “Who Wants to Be a Millionaire.” Celador created the show and claimed in a 2004 suit that it didn’t get a fair share of the profits enjoyed by Disney. The Riverside jury bought the case laid out by Lawdragon 500 member Roman Silberfeld, who contended that Disney used accounting gimmicks to hide profits from the show.
The Associated Press story quoted Silberfeld, a partner at Robins Kaplan, as saying: “At a time when (Disney-owned) ABC was ranked last among the networks and desperately needed a hit, it entered into an agreement with Celador to put 'Who Wants to Be a Millionaire' on the air and share the profits of success — if there was success — with Celador 50-50.”
Silberfeld said he expected the appeals process to take a few years. Disney called the verdict “fundamentally wrong.” The LA Times blog notes that case has been seen as an example of "Hollywood accounting" techniques that have hit shows somehow never turning profits.
|
|
| 04:06 PM Jul 7, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Judges on Lawyers
Almost 20 percent of all cases taken up by the U.S. Supreme Court last term involved “how lawyers do their jobs,” according to an article by Marcia Coyle of the National Law Journal. The story quotes Michigan State University College of Law Prof. Renee Knake who says the lawyer-focused docket was “nothing short of a revolution” and that lawyers need to take note of the 16 cases that dealt in some way with the practice of law. The cases covered areas such as attorney fees and ineffective assistance of counsel. For example, in Perdue v. Kenny A, the 5-4 majority reversed a fee enhancement award for extraordinary results by lawyers, and in Padilla v. Kentucky, the Court held that lawyers had to inform defendants of the immigration consequences of a guilty plea.
Roy Englert of Robbins Russell suggested it was difficult to speculate on larger trends possibly reflected in the cases. He said perhaps the high court believes that the ineffective-assistance precedent of Strickland v. Washington, a decision now 26 years old, is too abstract and no longer provides enough guidance to lower courts.
|
|
| 09:43 AM Jul 6, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Sen. Leahy’s Thoughts on Kagan
The National Law Journal posted a Q&A article with Sen. Patrick Leahy (D-Vt.) about the upcoming confirmation hearings for U.S. Solicitor General Elena Kagan, a member of this year’s Lawdragon 500 guide. The article notes that Leahy, the chairman of the Senate Judiciary Committee, has participated in all Supreme Court nomination hearings since Sandra Day O’Connor’s in 1981. Leahy told the NLJ that there is not “a great deal left” to learn about Kagan given that she went through a confirmation process to become solicitor general.
The NLJ’s David Ingram asked Leahy about whether Kagan’s personal life (i.e., her dating habits) would come up during the confirmation hearings, given that they’ve occupied much of the blog and TV chatter in recent weeks. Leahy said no way: “I think that's totally irrelevant, and I don't see what that has to do with her abilities as a judge.” He added that he didn’t think Repbulicans or Democrats would go down that road. Leahy said he prepares for the hearings by going back to his Vermont farm and reading truckloads of documents: “where I can sit in my chinos and a T-shirt and just read.” Leahy also said that Kagan’s handling of military recruitment issues during her tenure as dean of Harvard Law School was “a tempest in a teapot” but conceded that some Senators would make this an issue.
|
|
| 05:08 PM Jun 27, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
- Oil Lawsuits Accumulate
The Times summarized much of the litigation and related activity going on around the country in reaction to the BP oil spill. Lawyers are positioning themselves in ads and informational seminars, and they have purchased site addresses like GulfOilSpillLawFirm.com. The Times story notes that the federal lawsuits are likely to be consolidated into multidistrict ligation, a decision that will be made by a panel of judges meeting next month in Boise, Idaho. The article also describes some tensions between generalist mass tort lawyers and specialists who focus on environmental and maritime matters. One firm we know will play a leading role is New Orleans-based Herman, Herman, Katz & Cotlar, which already has filed class actions against BP on behalf of restaurants and hotels.
Tampa Online also reported that Lawdragon 500 member Steve Yerrid has been named special counsel by Florida Gov. Charlie Crist to develop a legal strategy against BP. Yerrid, a veteran of the big tobacco wars, is now assembling a legal team for the oil disaster: "This was a manmade disaster. And we're going to get to the bottom of this whole deal.'' A few years ago we did an article one of Yerrid's record-setting cases.
|
|
| 03:31 AM Jun 14, 2010 | Email the Daily Dragon | Email this Article | Post Comments |
|
|
