The BLT: The Blog of Legal Times

In Fourth Circuit, a Spotlight on Warrantless GPS Tracking

There's no dispute that the traffic stop one morning in May 2009 was legitimate. The driver of a Pontiac Grand Prix failed to use a signal before turning into an exit lane to leave Interstate 95 in South Carolina.

The authorities initiated a traffic stop on the exit ramp that morning near Charleston. The passenger, police would later say, was nervous. His arms and legs were shaking, according to court records.

The stop wasn't random. Local and federal investigators, working on a drug case, secretly were monitoring the movement of the car via a global positioning device—one that had been attached without a warrant.

TV Broadcasters Sue Internet Streaming Service

Updated at 2:37 p.m.

Television broadcasters filed a copyright infringement lawsuit yesterday against FilmOn.com Inc., a company that allows users to stream live television programs online. The networks are seeking a court injunction, accusing FilmOn of "exploiting…some of the most valuable intellectual property created in the United States."

The lawsuit is the latest stage of litigation playing out in courts on both coasts over the technology employed by FilmOn and another company offering the same service known as Aereo Inc. Aereo and FilmOn previously butted heads in trademark disputes—FilmOn founder Alki David adopted the name Aereokiller for his service—but recently reached a settlement, allowing them to focus on the larger challenges brought by the networks. David agreed to stop using the Aereokiller name, according to sibling publication Am Law Litigation Daily.

The plaintiffs include the ABC, CBS, Fox and NBC television networks, as well as Telemundo, Disney and local affiliates of the big networks that air programming around the Washington region. Jenner & Block partner Paul Smith, co-chair of the firm's media and First Amendment practice, is lead counsel for the Fox plaintiffs. Arnold & Porter intellectual property partner Robert Garrett is lead counsel for the other plaintiffs.

Two Senate Aides Tapped for SEC Commissioner Seats

Two U.S. Senate aides have been nominated to serve as commissioners of the Securities and Exchange Commission.

President Barack Obama tapped Democrat Kara Stein, legal counsel and senior policy advisor to Senator Jack Reed (D - R.I.) and Republican Michael Piwowar, who is the chief economist for the Committee on Banking, Housing and Urban Affairs.

Stein has worked on Capitol Hill in various jobs since 1997, but spent a year as an associate at Wilmer Cutler Pickering Hale and Dorr. If she's confirmed, that means Wilmer alums will occupy two out of five SEC commissioner seats. (Commissioner Daniel Gallagher is a former partner at the firm.)

Senate Confirms Two to D.C. Superior Court

If only every judicial nominee were this lucky. A little over a week after appearing before a U.S. Senate committee for a confirmation hearing, the Senate voted yesterday to confirm two local attorneys to the District of Columbia Superior Court.

President Barack Obama nominated solo practitioner Michael O'Keefe and federal prosecutor Robert Okun to the court in March and they appeared before the Senate Committee on Homeland Security and Governmental Affairs on May 15. They faced no opposition, and the committee gave them a favorable vote on May 22.

Nominees to the city's local courts—who, unlike other state and local court judges, are picked by the White House and confirmed by the Senate—tend not to get caught up in partisan gridlock that can snag nominees to the federal trial and appellate courts. However, the nominations are never a sure thing: senators put holds on at least two nominees during Obama's first term and the Senate returned three nominees to the White House in January, including Okun, after senators failed to take action before the end of the term.

The Morning Wrap

New rules: President Obama vows the development of new criteria for the use of drones in attacks against alleged terror targets, saying the United States is at a "crossroads" in the global fight against terrorism, The Washington Post reports. “As our fight enters a new phase, America’s legitimate claim of self-defense cannot be the end of the discussion,” Obama said in a speech Thursday. “To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance.” In today's New York Times: "C.I.A. to Focus More on Spying, a Difficult Shift." Reuters examines pending lawsuits around the country that are rooted in the government's targeted killing program. Obama in his speech called on the Justice Department to review its rules on subpoenas that target the media.

After Pat: From today's Chicago Tribune: "The lawyer picked Thursday to succeed Patrick Fitzgerald as Chicago's U.S. attorney is a former federal prosecutor best known for taking on corrupt politicians and powerful institutions such as the University of Notre Dame." The nominee, Zachary Fardon, oversees the Chicago litigation department at Latham & Watkins.

Confirmed: Sri Srinivasan, a top appellate lawyer at the U.S. Justice Department, will become the newest member of the U.S. Court of Appeals for the D.C. Circuit. The National Law Journal has this report. The confirmation was the first for the prominent appeals court in seven years, NPR reports. The Wall Street Journal has this report on Srinivasan.

Court Rules Cooperating Inmate Not A 'Government Agent'

As part of a plea deal with federal prosecutors in the late 1990s, Charles Bender agreed to cooperate with law enforcement authorities in future investigations. Several months later, Bender reported to the FBI that a fellow prison inmate, William Watson, confessed to a fatal shooting and Bender testified as a prosecution witness against Watson at trial.

Watson appealed his conviction, arguing his Sixth Amendment right to counsel was violated because Bender was acting as a government agent when the two spoke, given his relationship with law enforcement. Today, the District of Columbia Court of Appeals upheld Watson's conviction, finding that although Bender was serving in other capacities as a government informant, he wasn't acting at their behest in Watson's case.

Watson's attorney on appeal, D.C. solo practitioner Jenifer Wicks, argued Bender's agreement to cooperate with the authorities represented an implicit direction by the government to collect information from other prisoners if he had the opportunity.

Firms to Update Congress on Black Farmers' Claim Money

The lead class attorneys who helped secure a $1.25 billion settlement in 2011 for black farmers in a high-profile discrimination case have called on Crowell & Moring and Stinson Morrison Hecker for help on Capitol Hill, according to lobbying registration paperwork filed with Congress on Wednesday.

The firms are keeping members of Congress abreast of the status of the claims process, said Crowell partner Florence Prioleau, who is handling the work with Stinson partner Phillip Fraas. Plaintiffs should start receiving payments from the settlement in about two months, she said.

The settlement, which Congress approved in November 2010 and President Barack Obama signed off on that December, gives money to tens of thousands of black farmers who missed out on an earlier deal with the U.S. Agriculture Department over claims of discrimination in loan processing.

DOJ’s Tony West Defends Record on Whistleblowers

Acting Associate Attorney General Tony West defended the U.S. Department of Justice's record with whistleblowers Thursday, testifying on Capitol Hill that his leadership led to the recovery of more taxpayer money than at any other time in American history.

"The fact is that whistleblowers have a friend in this Justice Department," West, nominated for third-in-command at DOJ, said at his confirmation hearing. The government, West said, recovered more than $11 billion taxpayer funds recovered during his 3½ years as the chief of the Civil Division.

"When you look at the number of whistleblower suits filed under my leadership in the civil division, it went up 50 percent," West said. "That's because whistleblowers believe they will be fairly heard by this Justice Department."

D.C. Superior Court Nominees Voted Out of Committee

The U.S. Senate will consider two nominees for District of Columbia Superior Court following a favorable vote yesterday by a Senate committee.

Nominees Robert Okun and Michael O'Keefe appeared a week ago before the Senate Committee on Homeland Security and Governmental Affairs for their confirmation hearing. They faced no opposition.

There are five current or expected vacancies on the Superior Court bench. Okun and O'Keefe are the only nominees before the Senate. The White House is weighing possible nominees for the other judicial seats recommended by the local body that vets applicants for the local courts, the District of Columbia Judicial Nomination Commission.

The Morning Wrap

Drones: President Obama is expected to announce in a speech Thursday that the U.S. will be restricting the use of unmanned drones. The announcement comes a day after it was revealed that four Americans were killed outside of Iraq and Afghanistan by drones. The New York Times reports.

Judicial Review: Washington's federal district court will have to review hundreds of arrest and warrant dockets after it was discovered this week that the clerk's office failed to publicly file an unsealed warrant document in a high-profile government leak case. Our own Zoe Tillman reports.

Tornado: The Oklahoma attorney general is already cracking down on price gouging, identity theft and charitable fraud in the wake of the deadly tornado. More than 30 investigators have descended on the town of Moore. Our own Jenna Greene reports.

Judge Says Filing Errors May Prompt Review of 'Hundreds' of Cases

The chief judge of Washington's federal district court said he expects the court will have to review hundreds of arrest and search warrant dockets after learning this week that the clerk's office failed to publicly file an unsealed search warrant in a high-profile government leaks case.

In an order entered today, U.S. District Chief Judge Royce Lamberth apologized for a series of administrative errors that resulted in the continued secrecy of materials that had been previously unsealed in the case against Stephen Jin-Woo Kim, a former government adviser accused of leaking classified information about North Korea. The order was first reported by The Washington Post. As part of the leaks investigation, prosecutors obtained a search warrant to review Fox News reporter James Rosen's e-mails.

In an interview today, Lamberth said the mistakes were the result of human error in the clerk's office and he had no sense yet of whether similar problems occurred in other cases. "We're a public institution, we're accountable to the public," Lamberth said. "We shouldn't allow this to happen."

Civil Liberties Group Asks Secret Court to Release Opinion

Six years ago, the Justice Department fought a civil liberties group's effort to obtain documents directly from a secretive Washington court that hears government surveillance requests. The American Civil Liberties Union, the government said, was trying to make an "end run" around federal public records laws.

Then another group, the Electronic Frontier Foundation, went to court to try to get a copy of an opinion from the Foreign Intelligence Surveillance Court. The advocacy group sued the Justice Department last year under the Freedom of Information Act. In that case, the government said prosecutors are not permitted, by the surveillance court's own rules, to disclose the requested opinion.

The DOJ legal positions left spinning heads—at least those of the challengers. Today, the Electronic Frontier Foundation said it was filing papers in the surveillance court asking it to release the requested opinion—an 86-page ruling in which the court found surveillance activity violated the law. Alternatively, the advocacy group asked the court for a determination that its rules don't bar the release of the requested material.

"EFF asserts the government cannot have it both ways," wrote David Sobel and Mark Rumold, lawyers for the group, in their motion in the surveillance court. "The argument DOJ seeks to advance in the district court would, if accepted, impose a 'Catch 22' preventing any judicial review of access rights to this court's materials."

DOJ Official Defends Financial Fraud Enforcement

Banks and other large financial institutions are not immune from federal prosecution because of the potential collateral consequences to the economy, a top U.S. Department of Justice official testified Wednesday on Capitol Hill.

"Size does not equal immunity," Mythili Raman, the acting assistant attorney general of the criminal division, told the House Financial Services Committee. While the Justice Department considers the possible economic impact of filing criminal charges against a bank, Raman said, "It's never the dispositive factor."

Subcommittee Chairman Representative Patrick McHenry (R-N.C.) called the hearing—"Who Is Too Big to Fail: Are Large Financial Institutions Immune from Federal Prosecution?"—to clarify the Justice Department's stance on the issue.

Zuckerman Lawyer Counsels IRS Official in Congressional Probe

It's not every day a witness testifying on Capitol Hill invokes the Fifth Amendment right against self-incrimination. But that's what IRS official Lois Lerner did this morning at the advice of her attorney, William Taylor III, a Zuckerman Spaeder white-collar defense partner in Washington.

"I have not done anything wrong. I have not broken any laws," Lerner said in her opening statement to the House Committee on Oversight and Government Reform.

Seated directly behind Lerner was Taylor, a founding partner of Zuckerman Spaeder. Taylor is no stranger to headline-grabbing cases. His client list includes prominent names such as Dominique Strauss-Kahn, the former head of the International Monetary Fund accused of sexual assault; Kenneth Langone, the former chair of the New York Stock Exchange, and William Welch II, the former U.S. Department of Justice official investigated for prosecutorial misconduct in Ted Stevens case.

Legal Services Corp. Adds Sidley Pro Bono Chairman

The head of Sidley Austin's pro bono and public interest law committee is heading to the Legal Services Corp. in Washington, the firm and the federal agency announced Tuesday.

The LSC's board of directors yesterday unanimously approved Sidley senior counsel Ronald Flagg as the agency's vice president for legal affairs, general counsel and corporate secretary. He starts his new job June 3.

Flagg said he is "very sad" to leave Sidley. But he said he’s "very excited" to join LSC, which doles out more money for civil legal aid than any other U.S. organization.

The Morning Wrap

Taking the Fifth: Internal Revenue Service official Lois Lerner plans to assert her constitutional right not to answer questions from a congressional committee on Wednesday, Reuters reports. Lerner is the chief of the IRS tax-exempt unit, which targeted conservative groups for extra tax scrutiny.

Keystone Push: Canadian energy producers lobbying for U.S. approval of the Keystone XL pipeline are targeting undecided Democratic lawmakers in Washington in advance of a decision on the $5.3 billion project, Bloomberg reports.

Immigration Reform: A Senate committee approved a sweeping immigration reform bill Tuesday that would provide a path to citizenship for up to 11 million illegal immigrants, setting the stage for the full Senate to consider the landmark legislation next month, the Washington Post reports.

Evidence Raises New Questions in Chandra Levy Case

Updated at 4:39 p.m.

Federal prosecutors are again under fire for their handling of evidence in a high-profile case, with defense lawyers saying they never received critical evidence about a prosecution witness in the Chandra Levy murder case.

After months of sealed proceedings, District of Columbia Superior Court Judge Gerald Fisher today revealed the subject of recent post-conviction hearings for the first time in open court: the existence of information about a prosecution witness' history of cooperating with law enforcement. The information was not disclosed to defense lawyers before trial.

Lawyers for Ingmar Guandique, the man convicted of killing Levy, a former congressional intern, have said the new information is proof Guandique's conviction was "predicated on a lie." The attorneys spent much of today's hearing pushing for disclosure of more evidence about the witness, Armando Morales, particularly the extent of his previous attempts to serve as a government informant.

Senators Question IRS Over Targeting Conservative Groups

"Unacceptable." "Intolerable." "Almost unbelievable."

Both Democrat and Republican members of the U.S. Senate Finance Committee in a hearing today piled on the Internal Revenue Service for subjecting conservative groups seeking tax-exempt status to heightened scrutiny.

But some committee members also suggested that the root of the problem lies in the wording of a 54-year old Treasury Department regulation that allows ostensibly charitable groups to engage in political activity while keeping their donors anonymous.

"This is a clarion call to Congress," said Senator John Cornyn (R-Tex.). “We’ve asked the IRS to do much more than its core function….It’s not surprising all these problems have arisen.”

Daily D.C. Lateral Roundup

Wiley Rein has expanded its environment and safety practice in Washington with the addition of partner Steven Richardson.

Before joining Wiley Rein, Richardson was a partner at Van Ness Feldman. His practice focuses on regulation, public policy and litigation in matters related to water, wetlands, hydroelectric, energy and environmental law.

From 1993 to 2000, Richardson also served as an advisor to U.S. Department of the Interior Secretary Bruce Babbitt.

Sullivan & Worcester has added a lateral partner to its environment, energy and natural resources practice.

Elias Hinckley, previously a partner and clean energy practice chair at Kilpatrick Townsend & Stockton, focuses his energy practice on tax, specifically policy and financing. Hinckley brings experience in a number of energy sectors, including wind, geothermal, hydroelectric and coal, among others.

Conservative Group Sues IRS Over Tax-Exempt Status

The emerging controversy over how the Internal Revenue Service applied greater scrutiny to conservative groups is headed to federal court in Washington.

A Texas-based conservative group called True the Vote, Inc. filed suit Tuesday against the IRS in U.S. District Court for the District of Columbia. The complaint for declaratory action against the agency echoes revelations last week that the IRS used political criteria to target conservative groups for extra scrutiny on applications from tax-exempt organizations.

True the Vote says the IRS targeted its application—which has been pending for three years—because of the its political affiliation with Tea Party organizations. The group wants a judge to declare the IRS policy of targeting groups unconstitutional and enjoin the agency from the behavior in the future.

D.C. Circuit: Bin Laden Death Images Can Remain Secret

Updated 1:30 p.m.

More than 50 images of Osama bin Laden taken after his death in Pakistan in 2011 can remain secret, exempt from public disclosure under public records laws, a federal appeals court in Washington said today.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said 52 post-mortem images were properly classified as Top Secret. The panel upheld a trial judge's ruling that blocked the release of images. The appellate court ruling is here.

The U.S. Justice Department argued in the trial and appellate courts that the disclosure of graphic images of bin Laden—including a gunshot wound to his head—could expose the United States to retaliation. The plaintiff, Judicial Watch, rejected the notion that less gruesome images—for instance, bin Laden's burial at sea—would incite violence.

"As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al Qaeda could cause exceptionally grave harm," the D.C. Circuit panel said in its per curiam decision.

The Morning Wrap

Updated 11:33 a.m.

BP Charges Tossed: Washington white collar defense attorney Reid Weingarten calls it a huge victory: U.S. District Judge Kurt Engelhardt has thrown out the key obstruction of Congress charge against a former BP executive, The Associated Press reports.

Mad Judge: U.S. District Judge Richard Kopf wrote on his blog that he is "seriously contemplating" whether to drop a number of criminal immigration cases because of sequestration cuts, The Omaha World-Herald reports. "If a banana republic is what members of Congress want," Kopf writes on herculesandtheumpire.com, "I may help them get it." The post is here.

Holder's Future: The Christian Science Monitor ponders whether President Barack Obama will fire Attorney General Eric Holder Jr., before deciding he won't and giving three reasons why not.

Scalia Fumes Over Name of Telecom Trade Group

Add "orphan acronyms" to the list of Supreme Court Justice Antonin Scalia's pet peeves. Those are acronyms that used to stand for something -- like BP, formerly known as British Petroleum, or KFC, once Kentucky Fried Chicken -- but now stand without explanation as official names.

The acronym Scalia went after in a footnote on Monday was CTIA - The Wireless Association. That is the official name of the trade group that once used the acronym to stand for Cellular Telecommunications Industry Association, then the Cellular Telecommunications & Internet Association. But in 2004, as explained on the association's blog in 2009, the group went with CTIA - The Wireless Association, which it said "better represents our diverse membership of service providers, manufacturers, wireless data and Internet companies, as well as other contributors to the wireless universe."

But Scalia would have none of that in his majority opinion in City of Arlington, Texas v. FCC. He mentioned the group as an early participant in the dispute before the court, then dropped this footnote:

In Leak Case, DOJ Considered Reporter 'Co-Conspirator'

Updated 7:34 p.m.

With the U.S. Department of Justice under fire for secretly obtaining Associated Press phone records, a newly unsealed court document in Washington revealed that federal prosecutors seized far more than phone records in one pending leak case.

The Justice Department's investigation into leaks about classified information about North Korea in 2009 also looked at a Fox News reporter's security badge access records at the State Department building and his personal emails, according to a search warrant affidavit.

An investigation into government adviser Stephen Jin-Woo Kim also targets the news reporter for a criminal statute related to “gathering, transmitting or losing defense information,” which is punishable by up to 10 years in prison. The Washington Post, which first reported on the affidavit that was unsealed in 2011, identified the reporter as James Rosen of Fox News.

Q&A: McKenna Long & Aldridge's Joanne Zimolzak

Joanne Zimolzak took over as the managing partner of McKenna Long & Aldridge's Washington office in November. She not only oversees about 114 attorneys (according to our most recent Legal Times 150 survey) but also serves as head of the firm's insurance practice.

Zimolzak, who joined McKenna in 1994, focuses her business litigation practice on representing multi-national insurance carriers. She also has experience on matters related to regulatory compliance, internal investigations and fraud reporting.

Legal Times sat down with Zimolzak in the firm's K Street N.W. office to discuss what's keeping McKenna attorneys busy these days, growth in northern Virginia and women and diversity in the legal industry.

Former U.S. Attorney To Face Ethics Review

The U.S. Department of Justice's legal ethics division will look at whether a former U.S. attorney violated department rules when he disclosed information to a news reporter, an inspector general report released Monday states.

Dennis Burke, who was the U.S. Attorney for the District of Arizona during the leak in June 2011, admitted to releasing a memorandum related to the Operation Fast and Furious gun-trafficking program to a Fox News producer, the inspector general report found.

At that time, the Fast and Furious program was the focus of oversight hearings on Capitol Hill and inspector general investigations, and led to intense criticism for the Obama administration and Burke’s office.

After Controversy, Ex-Congressman Registers to Lobby

Former Representative Ron Klein (D-Fla.) has registered with Congress as a federal lobbyist at Holland & Knight for the first time since he left congressional lobbying rolls in February 2012 amid controversy.

Klein, a Holland & Knight partner who maintains offices in Florida and in Washington, in January 2012 registered as a lobbyist for Spirit Airlines Inc. while he was a bundler for President Barack Obama's re-election campaign. Obama had pledged not to accept donations from federally registered lobbyists.

Following news reports about Klein's registration, Holland & Knight filed paperwork with Congress saying he wasn't a lobbyist for the Florida-based airline. Klein helped raise between $200,000 and $500,000 for Obama's re-election, the president's campaign website shows.

Klein told NBC News in February 2012 that his registration for Spirit was a colleague's "clerical error." In the interview then, Klein said: "I'm not a lobbyist."

This Week in The National Law Journal

Holder Takes Fire: Attorney General Eric Holder Jr., had been mostly out of the spotlight since President Barack Obama's re-election. Todd Ruger takes a look at how that all changed last week as the Justice Department came under fire for secretly obtaining phone records from the Associated Press.

Law for Laymen: Karen Sloan reports on the growing number of law schools offering master's degrees. While the movement is in its early stages, it could represent a promising counterpoint to waning interest in the traditional three-year J.D. degree.

Judgments Pile Up: A review of records in Washington federal court since 2008 show the Iranian government owes nearly $18 billion in judgments for supporting terrorist activity. But Zoe Tillman reports Iran has yet to pay a dime, and victims' lawyers are expressing frustration at their lack of options.

Federal Judiciary Seeks Funding: Federal courts officials have appealed to Congress for emergency funding, saying the judiciary lacks the budget flexibility to absorb the large mandatory spending cuts that have forced furloughs in the nation's federal public defender and court offices. Todd Ruger has the story.

The Morning Wrap

IRS: Receiving little direction, the Internal Revenue Service's Cincinnati outpost faced difficulties handling groups seeking tax exemptions, The New York Times reports. "The IRS is pretty dysfunctional to begin with, and this case brought all those dysfunctions to their worst," said Paul Streckfus, a former IRS employee who runs a newsletter devoted to tax-exempt organizations.

Obama Plans: President Barack Obama on Thursday will discuss how he plans to bring the drone program and the Guantanamo Bay, Cuba, military prison in line with the legal framework he said he would follow after taking office, The Washington Post reports.

Roberts Trip: U.S. Supreme Court Chief Justice John Roberts Jr. was in Jamestown, N.Y., on Friday for the 10th anniversary of a center dedicated to the late Justice Robert Jackson, The Associated Press reports. Jackson's grandchildren gave Roberts a life-size bronze bust of Jackson. "It will occupy a place of great prominence at the court," Roberts said, "just as his portrait does."