The BLT: The Blog of Legal Times

D.C. Circuit: Cable Programmers Lack Standing in FCC Fight

D.C. Circuit: Cable Programmers Lack Standing in FCC Fight

Cable operators must provide digital and analog versions of the same program despite concerns from critics that the requirement will eat up space and force some operators to dump channels, a federal appeals court ruled today.

The U.S. Court of Appeals for the D.C. Circuit said the programmers who challenged the Federal Communication Commission—among the group were C-SPAN, A&E Networks, and the Weather Channel—lacked standing to petition the appeals court for review. Here's a Legal Times article on the case.

Judges Judith Rogers, David Tatel, and Brett Kavanaugh said the programmers had not shown how they were injured by the FCC rule or how they would likely be harmed after the switch to digital broadcasting next year. The programmers argued the possibility of limited space on cable line-ups infringed free speech rights—the ability to “speak” to consumers.

But the appellate court noted that cable operators were not participants in the FCC challenge. Cable operators have pledged to carry both the digital and analog versions of the same channel for at least three years. Rogers wrote the opinion.

Bruce Sokler, a partner with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, argued for the programmers. By finding a lack of standing, the D.C. Circuit did not examine the First Amendment arguments. “We’re disappointed our First Amendment claims were thwarted by a procedural approach,” says C-SPAN general counsel Bruce Collins.

FCC Deputy General Counsel Joseph Palmore argued for the government. Jack Goodman, a partner at Wilmer Cutler Pickering Hale and Dorr, argued for the intervenors, which included the National Association of Broadcasters.

"This decision represents a big win for broadcasters,” NAB Executive Vice President Dennis Wharton said in a statement. “We’re pleased the court accepted the FCC’s sensible viewability rules and rejected speculative claims by C-SPAN and other cable programmers that any must carry requirements violate their First Amendment rights."

First Star Honors Judge Josey-Herring and Schiff Hardin’s Ronald Safer

First Star, a D.C.-based children's rights non-profit organization, honored a few of Washington's stars earlier this week for their work in helping to improve the lives of abused and neglected children in the District.

In the organization's first award ceremony in Washington, First Star recognized the work of D.C. Superior Court Judge Anita Josey-Herring, Schiff Hardin managing partner Ronald Safer, and Shalita O'Neale, founder and executive director of the Maryland Foster Youth Resource Center.

Amy Harfeld, First Star executive director, says the award winners were deliberately selected from three different fields to show the diverse ways Josey-Herring, O’Neale, and Safer went about helping children.

Harfeld says Josey-Herring, who presides over the Family Court, was selected because she is a “star in the D.C. legal community” who understands the importance of providing top-notch professionals to children to ensure they are taken care of.

“She does this work every day, and has an exceptionally high standard for any professional who enters her courtroom to deal with children,” Harfeld says.

O’Neale, herself a victim of abuse, was selected because “she puts a face” on First Star’s effort to get a national right to counsel law passed, which would ensure that all child victims of abuse and neglect who receive court action are represented by an attorney in foster care and dependency hearings.

“She had the experience of growing up within the system and saw how powerful it would have been to have access to counsel while growing through such a scary process,” Harfeld says.

Safer, and by extension the rest of Schiff Hardin, was honored for being a “partner” to the organization. Schiff Hardin provides office space for First Star in D.C. and is actively involved in many of its efforts.

“They don’t help us because it’s a nice thing to do. It’s apparent in how they walk the halls and with who they hire that they are completely committed to our cause,” she says.

Board on Professional Responsibility: Former Milberg Partner Should Be Disbarred in D.C.

The Board on Professional Responsibility recommended last Friday that Steven Schulman, a former name partner at the New York-based firm then called Milberg Weiss Bershad & Schulman, be disbarred after he was sentenced to six months in prison earlier this year for his involvement in a scheme to kick back fees to class action name plaintiffs.

The recommendation will be sent to the D.C. Court of Appeals, which will ultimately make the decision.

Schulman consented to being disbarred in D.C. on Oct. 8, and he is already disbarred in New York.

Schulman took part in a conspiracy that earned Milberg and seven of its partners $251 million in attorney fees through secret and illegal payments to lead plaintiffs in shareholder and class action securities cases.

Several other partners at the firm received prison time for their involvement in the scheme. William Lerach, who left the firm in 2004 to form his own firm, now called Coughlin Stoia Geller Rudman & Robbins, was sentenced to 24 months, and Melvyn Weiss, co-founding partner of Milberg, was sentenced to 30 months. David Bershad was sentenced to six months.

GOP Opposes NAACP Bid to Extend Polling Hours in Va.

With Virginia shaping up as a heavily contested state in Tuesday’s election, a lawyer for Republicans has filed a motion to dismiss an NAACP lawsuit that seeks to extend polling hours, re-allocate voting machines, and provide paper ballots to voters in Norfolk, Richmond, and Virginia Beach.

The NAACP filed the lawsuit Tuesday, alleging that the cities’ election officials have not adequately prepared for the expected surge among newly-registered voters, especially in communities of color. It alleges the defendants – Democratic governor Tim Kaine and city election officials – have acted with the intent to discriminate against the African-American plaintiffs in those cities.



Chris Ashby, government relations partner at LeClairRyan’s Washington office, has filed a motion to intervene and dismiss the lawsuit on behalf of local Republican committees and a collection of individual voters. The motion argues that extending polling hours would confer special privileges on voters in three cities, thus infringing the constitutional rights of those Virginians who do not have the benefit of voting later in the evening.

Ashby says the extension of voting hours is not authorized under Virginia law. “Anyone who is waiting in line at 7 p.m. gets to vote, no matter how long they’ve had to wait in line,” he said. “The law already provides a remedy.”

Justice Alito, Phillies Phanatic

Supreme Court Justice Samuel Alito Jr. has turned his desk at the Court into a mini-shrine to the Philadelphia Phillies.

There’s a Phillies towel, the front page of the Oct. 30 Philadelphia Inquirer with a headline proclaiming “CHAMPS!” and a baseball hat marking the team’s playoff win. The World Series hat, he says, “is on the way.”

Alito, a Phillies fan since he was 4 or 5 years old, granted a rare in-chambers interview Friday to convey his enthusiasm about the World Series victory after a 28-year drought. “Like millions of other fans, I feel like we did it,” Alito said.

And, like millions of other fans, Alito also thought the final rain-soaked game should have been called earlier than the middle of the sixth inning on Oct. 27. “It was very frustrating,” Alito said. “The weather was terrible, and they shouldn’t have had to play the last half-inning.”

Alito continued, “I know it’s gratuitous advice, but they need to have a rule on that before the game.” But he added with a smile, “It worked out OK.” The rest of the tied game was played Oct. 29 and the Phillies won 4-3.

Ted Olson Wins Supreme Court Showdown

After weeks of dispute, and just three days before oral argument, the petitioners in the case of Carcieri v. Kempthorne agreed late this morning that former solicitor general and Gibson, Dunn & Crutcher partner Theodore Olson will be their advocate before the Supreme Court on Monday. Olson's tenacious adversary Joseph Larisa will sit silently at the counsel's table. But to hear Larisa tell the story, the decision was not reached until after a dramatic phone call to the squabbling attorneys this morning from Court Clerk William Suter.

At its private conference this morning, the Court rejected for the second time the motions before it for divided argument time in the case, which involves a dispute over Indian land in the town of Charlestown, Rhode Island. That, in effect, returned the issue back to the lawyers for them to decide which one lawyer would argue. Rhode Island Gov. Donald Carcieri wanted Olson and no one else, while Larisa, a private attorney for the town of Charlestown who handled the case for a decade in courts below, offered to flip a coin.

Suter, according to Larisa, got Olson, Assistant Rhode Island Attorney General Neil Kelly, and Larisa on the phone together at 11 a.m., following the Court conference. He gave them one hour to come back to him with a single name. Failure to do so, he said, would result in "default of oral argument." That, apparently, would have meant that only the respondent, represented by the solicitor general's office, would argue on Monday, with no input from a representative of the state or locality -- an extraordinary scenario.

"At that point, I zoomed over to the governor's office," Larisa says, ready to agree to a three-way drawing between the governor, the attorney general, and himself. But they said no, telling Larisa the only choice was between Olson or default. "I asked, 'You're willing to throw it all away?'" After further discussion, Larisa says, "I concluded they were not bluffing." Consulting with Charlestown officials, Larisa decided to go along with Olson "rather than killing the oral argument." Olson called the Court clerk with the news that he, not Larisa, will be arguing. The argument is set for 1 p.m. Monday.

New Details Emerge in Wone Murder Case

D.C. lawyer Robert Wone was restrained, incapacitated, sexually assaulted, and fatally stabbed in a Dupont Circle townhome in 2006, police say in an arrest affidavit released today.

Investigators say three men in the home at the time of the murder—Joseph R. Price, Victor Zaborsky, and Dylan Ward—obstructed the homicide investigation by "altering and orchestrating the crime scene, planting evidence, delaying the reporting of the murder to the authorities, and lying to the police about the true circumstances of the murder."

Ward, 38, was arrested on an obstruction charge Wednesday at a home in Miami Shores belonging to Price and Zaborsky, who are domestic partners. Price is an Arent Fox lawyer in the firm's litigation and intellectual property departments. Ward will be extradited to the District. He is being held in federal custody.

Price and Zaborsky have not been charged with a crime, but according to the police affidavit "there exists overwhelming evidence, far in excess of probable cause" that all three obstructed justice. A spokesman for the U.S. Attorney's Office declined to comment. "The investigation is clearly continuing, though," spokesman Channing Phillips said.

Police say three stab wounds found on Wone's body were inflicted when Wone was incapacitated. Investigators found needle puncture marks on Wone's body "that were not the product of any legitimate medical treatment." Police say Wone was drugged. The neat, clean room in which Wone was found is inconsistent with the theory that an intruder killed him, police say. Police found an insignificant amount of blood on the bed where Wone was found.

Shackles, metal and leather collars, wrist/ankle restraints, mouth gags, black spandex hoods, and other items were found in Ward's bedroom, according to police reports. A New Yorker magazine on the floor was opened to an article titled "Late Works, Writers Confronting the End."

Stay tuned to the BLT for more updates.

Dylan Ward Ordered Held in Federal Custody

UPDATED: 1:15 p.m.

Dylan Michael Ward, arrested this week on an obstruction charge in Miami-Dade County, Fla., in connection to the murder of D.C. lawyer Robert Wone, was ordered held this morning in federal custody. There is no bond.

Ward, 38, appeared before U.S. Magistrate Judge Andrea Simonton in U.S. District Court for the Southern District of Florida. Ward's lawyer in Florida, Peter Raben, agreed to pre-trial detention with the right to revisit detention following Ward's extradition to the District of Columbia, a court official said. Raben was not immediately available for comment.

The Florida Department of Law Enforcement arrested Ward in Miami Shores on a fugitive warrant. Wone, 32, a former Covington & Burling associate who became general counsel for Radio Free Asia, was killed in 2006 in an townhouse in Dupont Circle. Three other people were in the home—including Ward—at the time Wone was fatally stabbed.

Ward was arrested at the Miami Shores home of Joseph Price and Victor Zaborsky, domestic partners who owned the town home in Dupont Circle where Wone was killed. Price is an Arent Fox lawyer who works in the firm's litigation and intellectual property departments.

D.C. Lawyer Preps for Election Day in Ohio

Kirkland & Ellis partner Andrew Clubok has lived in Washington since the early 1990s, but his roots are still in his home state of Ohio.

That's why, on Election Day, you won't find him in his 15th St. N.W. office, just across the street from the White House, where he's currently representing investment banks against shareholder litigation and antitrust claims. He'll instead be at a polling station in Columbus, ready to handle any voter fraud or voter intimidation issues that may arise during what promises to be record-breaking turnout in the all-important swing state. "We'll look for pretty much everything, anything that in any way looks like voter suppression," says Clubok, a native of Athens, Ohio. Though Clubok has been an active fundraiser for Obama, he is not going to Columbus in an official role for the campaign. 

As predicted in this New York Times story today, lawyers in Ohio could be in for a hot bed of litigation in the wake of a tight race this Tuesday. That would be familiar territory for Clubok. During the 2004 election, he litigated in Ohio against independent candidate Ralph Nader and ultimately got him taken off the state's ballot. He also manned a polling place in Columbus on Election Day in 2004, and ended up putting his legal expertise to use. "We actually did file litigation to keep some of the polling places open and distribute paper ballots where the lines were extremely long."

Clubok says instances of true voter fraud are rare. What are far more likely to arise, he says, are efforts to strictly interpret voting laws in an attempt to find ways to disqualify voters. On Election Day this year, though, he hopes to leave the legal work back at the office. "My biggest hope is that it is an extremely quiet, happy day in which everyone gets to vote peacefully...I hope not to pick up a law book or get out a piece of paper." 

Obama Wins at the Supreme Court (Hypothetically)

The decision is in: Barack Obama has won in the hypothetical case of McCain v. Obama, argued before a prestigious panel of former judges on Oct. 20, as we reported here.

The case posited a severe snowstorm hitting Denver on Election Day that snarled traffic and made it impossible for many voters to reach the polls by the state-required closing time of 7 p.m. Denver officials unilaterally kept the polling places open until 9 p.m., allowing 50,000 voters to cast provisional ballots. With the national outcome of the election hanging in the balance, John McCain goes to court, asserting that the Denver action is an equal protection violation -- shades of Bush v. Gore -- and also violates Article II of the U.S. Constitution.

At the moot courtroom at Georgetown University Law Center, Jones Day's Glen Nager argued for McCain, and O'Melveny & Myers' Walter Dellinger argued for Obama, before former D.C. Circuit chief judge Patricia Wald, former California U.S. District Judge David Levi, and former Texas Chief Justice Thomas Phillips. 

In a unanimous per curiam ruling of the mock Supreme Court issued earlier this week, the panel decided that the equal protection claim made on behalf of McCain was insubstantial and that Denver election officials had acted reasonably to serve the needs of voters in their district. "While it is certainly true, as Petitioners argue, that uniform voting rules within a state are highly desirable, and purposeful deviations without cause may in some circumstances rise to the level of a constitutional violation, the realities of holding elections in 64 districts will occasionally mean that unexpected events like severe weather, power outages, and voting machine breakdowns may require immediate adjustments to general rules of time and place to serve the overarching goals of equal access to the ballot box and facilitation of maximum voter participation." The panel also rejected McCain's Article II claim that by allowing the ballots cast after the normal closing time to be counted, the Colorado Supreme Court usurped the state legislature's constitutional role in setting election rules.

Edward Foley, the Ohio State University College of Law election law expert who conceived the idea for the exercise, pronounced it a successful demonstration of how politically charged, election-deciding legal disputes can be handled convincingly if the panel making the decision is -- and is perceived to be -- nonpartisan. "This unanimous decision surely meets this criterion of demonstrable non-partisanship. It stands as a model for how 'the rule of law' can operate in highly polarized election cases," Foley wrote in a post-decision analysis. Foley's goal was to test the feasibility of using special nonpartisan election courts to resolve such disputes, or at least to help the regular courts evaluate the issues.