The BLT: The Blog of Legal Times

Law as a second career?

It’s not unusual for a person to trade in a high-stress career for, say, a part time gig at the local Barnes & Noble. But based on some of Sterne, Kessler, Goldstein & Fox’s recent hires, it appears some folks are choosing second careers as first-year associates. The firm’s electronics practice took on seven first-years this month, two of whom are over the age of 50.

That seems like a heck of a career move, but Donald Featherstone, leader of Sterne Kessler’s electronics practice, says his new, better-seasoned hires are a big asset. “They just have that life experience which allows them to basically hit the ground running.”

Because Sterne Kessler is an intellectual property boutique, Featherstone says law firm experience is not the only thing that counts. The firm also recruits specialists with technical and physical science backgrounds. New associate Ross Hicks, 51, holds a Ph.D. and an undergraduate degree in electrical engineering, as well as an MBA with a high technology concentration. He was the vice president of engineering at Transcept/OpenCell Corporation prior to joining Sterne Kessler. Robert Molitors, 52, has an MBA in finance and a master of science in electrical engineering. Before switching to law, he was an information technology consultant and an entrepreneur.

Featherstone, who is 43, does admit there could be a potential to stigmatize older associates in some situations. For someone more “externally focused on developing new business,” he says a different title could prove advantageous when dealing with clients. Still, he says age is not an issue within the office, and there is no mandated retirement age for associates. At the partnership level, 65 is the mandatory retirement age, though exceptions can be made on a case-by-case basis.

Class Action Against PricewaterhouseCoopers

A motion that seeks to certify a class of all accounting associates and senior accounting associates was filed in California yesterday against Big 4 accounting firm PricewaterhouseCoopers. The plaintiffs are two former associates who claim PwC owes them overtime and benefits. The suit was filed in federal court in the Eastern District of California by William Kershaw of the Sacramento law firm, Kershaw, Cutter & Ratinoff, and has been pending for more than a year. According to the law firm’s website, the action is now the first against one of the Big 4 to reach the class certification stage.

CFO.com reports the plaintiffs are arguing that under current California law, only certified public accountants can be deemed exempt from getting overtime. Since the plaintiffs are not licensed, they say they’re owed big. A hint at the potential damage is broken down on Kershaw, Cutter & Ratinoff’s website: “An associate who earned $42,000 a year and worked approximately 250 hours of overtime per year may be entitled to approximately $40,000 in overtime pay over a 5-year period. This amount does not even include the substantial penalties and interest that would be imposed for the willful failure to pay overtime.”

The law firm’s site says it’s also looking into the rest of the Big 4- KPMG, Ernst & Young, and Deloite & Touche. CFO.com says PwC did not immediately return calls.

Morning Wrap

Southwick is Confirmed: Leslie Southwick, a former Mississippi state appellate judge, was confirmed by the Senate yesterday to the U.S. Court of Appeals for the Fifth Circuit. Nominated in January, Southwick has been criticized by Democrats and civil rights leaders for his track record on racial issues. The Senate confirmed him by a vote of 59 to 38.

More on BP: According to the Wall Street Journal, the Justice Department might indict four former BP traders in conjunction with a propane-trading scheme. Yesterday word began trickling out about BP possibly settling two separate investigations—one on the propane market manipulation and another relating to an explosion in the company’s Texas City oil refinery in 2005.

Taking the "Climate" Out of Climate Change: The Bush administration “heavily edited” written testimony that the director of the Centers for Disease Control and Prevention gave to Congress on Tuesday. Director Julie Gerberding’s testimony went from 24 pages to 12 after the Office of Management and Budget went on an editing spree. Among the omitted passages is “the CDC considers climate change a serious public concern.” The administration says the edited portions contradicted the U.N. Intergovernmental Panel on Climate Change’s report released this year.

No Merger for You: The Federal Trade Commission is not exactly keen on Whole Foods. Perhaps it’s the hippy-dippy atmosphere combined with prices that only the well-to-do can afford that has impelled the FTC to again try to stop Whole Foods' merger with Wild Oats. The feisty commission filed an appeal with the federal appeals court in Washington, saying that the merger could still be undone. The outlook, though, is not so good.

American Life, Act II

Michael Brown, Arabian horse fancier and former director of the Federal Emergency Management Agency, is available to journalists seeking insight about the California wildfires. According to a press release by the Cotton Companies, a disaster response shop that managed to pick up Brown as its director of corporate strategies, "He can offer advice to residents and businesses on proper relief and recovery efforts and provide suggestions for future disaster preparedness."

This from the man who, as New Orleans and the Gulf Coast succumbed to disaster, mismanagement and shoddy evacuations during Katrina, fired off an e-mail reading "Can I go home now?"

So far, a reporter from the District's own WJLA seems to be the first to have taken him up on the offer. In an exclusive interview, Brown suggested that a shortage of national guard troops, due to the war in Iraq, was complicating disaster response.

"The White House needs to recognize that we are overstretched and that there is a problem," he said.

BP Settlements

BP is settling up some of its legal troubles, according to articles in the New York Times and the Wall Street Journal today. The energy company is expected to plead guilty to criminal charges in connection with the Texas City oil refinery explosion two years ago that killed 15 people and wounded 170. And in a separate case, BP will settle up with the Commodity Futures Trading Commission for allegedly fixing prices in the propane market in 2004.

Jones Day partners, Daniel Reidy and Lee Ann Russo in Chicago, and David Miller of the firm’s Houston office, handled the Commodity Futures Trading Commission litigation for BP, which was filed in 2006 in Illinois.

Steven Peikin and Kenneth Raisler of Sullivan & Cromwell represent BP on the criminal investigation of the commodities case.

Still unknown is which lucky lawyer is representing the company in the DOJ’s criminal investigation of the Texas City explosion, but the settlement information should be public later this week, according to news reports. The company is expected to pay a $50 million fine in order to settle the Texas City and $303 million in the commodities matter.

Imitation Is the Sincerest Form...

A lot of ink has been devoted these days to the challenge of intellectual property law in China. But this month’s Wired magazine has a look at a different Asian country and its unusual stance toward copyright, at least where comic books are concerned:

I spent two days at Super Comic City. But an American intellectual property lawyer probably would not have lasted more than 15 minutes. After cruising just one or two aisles, he would have thudded to the floor in a dead faint. About 90 percent of the material for sale — how to put this — borrows liberally from existing works. Actually, let me be blunter: The copyright violations are flagrant, shameless, and widespread.

The world of dojinshi, or fan comics, is a vital part of the Japanese comic book (manga) subculture. Fan comics are rampant for such popular series as "Pokemon" and "Naruto," and they even take on foreign works such as the Harry Potter series and "Star Wars." There are whole conventions of nothing but dojinshi artists, who are almost as famous as the creators of the comics in the first place. And a lot of these books are, shall we say, adult.

But Japanese lawyers are taking a different tack than would American lawyers, who, writer Daniel Pink says, “would have picked himself off the ground, thumbed a cease-and-desist letter on his BlackBerry, and phoned in a temporary injunction to close down the joint. Imagine Disney's response if some huge comics convention in St. Louis or Houston were selling exquisitely rendered, easily identifiable comic book versions of Mickey Mouse and Goofy falling in love.” In the country once known for its concepts of honor and obligation, the way of the samurai seems to still be a force: Pink says he comes up against the concept of an unspoken agreement – anmoku no ryokai - that fan comics help build the market base and draw attention to the original works.

In the Internet age, where the concept of interactive fan bases, or “fandom,” is gaining steam worldwide, what are the implications of this approach for companies and for IP attorneys here in the U.S. and overseas?

Senate to Mukasey: Clarify Position on Waterboarding

After last week's confirmation hearings left more than one senator uneasy with Michael Mukasey's stance on torture methods, the Senate Judiciary Committee on Tuesday sent the attorney general nominee a follow-up letter with a simple question:

"Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S. Law, including treaty obligations?"

Last Thursday, a day after he disavowed an infamous 2002 torture memo and charmed most senators with his answers, Mukasey backtracked and couldn't bring himself to categorically denounce waterboarding as a form of torture.

Earlier this month, The New York Times disclosed the Department of Justice issued two memos in early 2005 -- mere months after it had rescinded the 2002 memo -- sanctioning questionable interrogation practices by CIA officers, including waterboarding.

This is last Thursday's exchange that led to yesterday's letter:

Sen. Sheldon Whitehouse (D-R.I.): Just to finish that thought: So is waterboarding constitutional?
Mukasey: I don't know what's involved in the technique. If waterboarding is torture, torture is not constitutional.
Whitehouse: If water-boarding is constitutional is a massive hedge.
Mukasey: No, I said, if it's torture. I'm sorry. I said, if it's torture.
Whitehouse: If it's torture? That's a massive hedge. I mean, it either is or it isn't. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning -- is that constitutional?
Mukasey: If it amounts to torture, it is not constitutional.
Whitehouse: I'm very disappointed in that answer. I think it is purely semantic.

The Judiciary Committee's letter, signed only by all ten Democratic members of the judicary committee, further states:

"We are deeply troubled by your refusal to state unequivocally that waterboarding is illegal...We want to give you an opportunity to clarify your views on this important question.

"It is surprising that you are unfamiliar with waterboarding since it has been the subject of much public discussion in recent years."

Quid Pro Quo?

Members of the Senate and House judiciary committees are none too pleased they have been shut out of the White House's selective release of documents related to the warrantless surveillance program.

On Monday, Sens. Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.) fired off yet another letter to White House Counsel Fred Fielding, asking for the same treatment their counterparts in the Senate intelligence committee got last week when they reviewed the long-sought records.

"You have now had more than ample time to collect and process the relevant documents...but no such information has yet been provided," wrote Leahy and Specter. "Instead, we read that a White House spokesperson has now conditioned the production of information on prior Senate agreement to provide retroactive immunity from liability for communications carriers."

Last week, White House officials said the reason Senators from the intelligence committee got to see records related to the controversial program was because they had agreed to include blanket immunity to the telecom industry in a Senate FISA reform bill.

Indeed, the legislation introduced last Thursday by Sen. John Rockefeller (D-W.Va.) does exactly that and goes beyond the now-defunct House Judiciary measure, the RESTORE Act of 2007, in granting the government broader foreign-intelligence surveillance powers.

Courting the Anti-Immigration Vote

How do you get attention for your long-shot Republican presidential bid when you're consistently left out of campaign news coverage? Well, in Tom Tancredo's case, you call in la Migra on Senator Dick Durbin's press conference.

Tancredo informed Immigration and Customs Enforcement that he believed there would be illegal immigrants at the event promoting the DREAM Act, legislation which would create a path to citizenship for undocumented immigrants who serve in the military or attend college. Despite Tancredo's call for the enforcement of law and order in the capitol, the agency seems to have decided his proposed raid wasn't a priority -- a spokesman told The New York Times that it's still reviewing Tancredo's request.

Also today, The Boston Globe highlights another Republican contender's addition to the immigration debate: Fred Thompson wants a crackdown. Opposed to any form of immigration amnesty, the former senator is suggesting stripping states and cities of federal funds if they fail to report undocumented immigrants to federal authorities. The plan, the Globe says, may be a dig at opponents John McCain, Mitt Romney and Rudy Giuliani, who haven't been as strident on the issue.

Southwick Confirmed

The Senate has confirmed Leslie Southwick to a seat on the bench of the U.S. Court of Appeals for the 5th Circuit, despite firm opposition from some Democrats who questioned the judge’s racial sensitivities. Read the AP story here. Congress has been thrashing over his nomination for months, so there's plenty of history. Check out our stories here and here.

Southwick, a law professor, judge and Iraq war veteran, passed on a 59-38 vote, ending the back-and-forth over his qualifications and record on civil rights. Some Democrats argued that his writings were racially insensitive and that Southwick, who is white, is a bad fit for a region still shadowed by civil rights struggles.

According to the AP, “The question of whether to send the law professor, judge and Iraq war veteran to the 5th U.S. Circuit Court of Appeals tested a fragile agreement in the Senate to block the president's judicial nominees only in extraordinary circumstances. Some Democratic opponents, backed by the Congressional Black Caucus, the NAACP Legal Defense fund and the AFL-CIO, said some of Southwick's writings met that standard. But Democrats said they did not have the votes to filibuster, or block, Southwick's nomination.”

Supporters said the vote wasn't about the history of the 5th Circuit, which includes Mississippi, Louisiana and Texas, but Southwick's qualifications.

``If he was up for any other circuit, there would be no hesitancy,'' said Pennsylvania Sen. Arlen Specter, the ranking Republican on the Judiciary Committee.

People For the American Way was one the first groups to respond (expect many, many more) to the confirmation, sending out a news release, shrilly headlined, "Senate Confirms Nominee Unfit for Federal Bench."

“Following the 2006 election, President Bush pledged to move ahead in a cooperative and bipartisan manner. But mere days after the new Congress was sworn in, he submitted the controversial nomination of Leslie Southwick.”