The BLT: The Blog of Legal Times

Sidley Austin Picks Up Former Energy Department General Counsel

Sidley Austin picked up David Hill, former general counsel for the U.S. Department of Energy, to co-head the firm’s global energy practice. Hill joins the firm as a partner.

Hill served as the DOE’s general counsel and regulatory reform officer from Aug. 2005 to Jan. 2009.

Hill was one of the principal authors of the regulations and solicitations for the multi-billion dollar Loan Guarantee Program for innovative energy projects and played a significant role in the DOE’s analysis of the loan and grant programs established by the Energy Independence and Security Act of 2007. He also had a key role in many of DOE’s nuclear programs, including the development of regulations for the program to provide risk insurance for new nuclear power plants.

At Sidley, Hill will join the firm’s global energy team, which includes Roger Martella, who served as general counsel to the Environmental Protection Agency from 2006 to 2008 before rejoining Sidley in July 2008.

“Very few energy lawyers have the experience and have earned the respect that David has,” Carter Phillips, managing partner of Sidley’s Washington, D.C. Office, said in a statement.  “For the past seven years, he has been at the forefront of the major legal and policy discussions involving energy, environment, climate change, clean tech, resource development and financing sustainable and renewable resources from both domestic and global perspectives.”

D.C. Council Special Committee Asks Judge to Enforce Subpoena

UPDATED (3:45 p.m.)

A special D.C. Council committee investigating widespread errors in two primary elections last year asked a D.C. Superior Court judge yesterday to enforce a subpoena against the company that provides voting machines to the District.

Lawyers from Jenner & Block and Hunton & Williams, who are representing the committee, argue that Sequoia Voting Systems voting machines failed during primary elections held on Feb. 12 and Sept. 9, and source code and other voting materials will show whether “sleeper glitches” are to blame for “glaring errors.” One of the errors mentioned in court filings are election returns that showed nearly 4,759 votes were cast in the Sept. 9 primary election in Precinct 141 even though the precinct has only 2,388 registered voters.

Lorelie Masters, a partner at Jenner & Block representing the special committee, tells the BLT that similar errors were replicated in several other precincts. She adds that outside of Sequoia's software failing, "there's no logical explanation for how these anomalies occurred."

On Sept. 18, the special committee slapped Sequoia with a subpoena to obtain documents and other materials, including the source code data. Sequoia, which has provided voting materials and machines to the District for over 20 years, has so far refused to comply with the subpoena, saying that the materials either aren’t relevant or are proprietary.

In court filings, Masters says the special committee has tried to reach a compromise with Sequoia, offering to have the source code data sealed under a protective order. But Sequoia fired back that the District must post a $20 million bond before it would turn over source code data. Masters says, "I've never seen anything like this happen before, and the special committee obviously did not pursue it."

The company has argued previously that the fault lies not with its software or equipment, but on “some type of electrical or static discharge that might have taken place.”

In a statement, Councilmember Mary Cheh, chairwoman of the Council Board of Elections and Ethics Investigation special committee, says “Sequoia has no legal justification for its position.

“Sequoia’s source code is critical to our investigation,” Cheh says. “We can’t move forward without it. The special committee has spoken to all of the people who ran the election, now we need to look at the software that administered it.”

In addition to Masters, the team of lawyers representing the special committee includes Jenner & Block associates Kristina Filipovich, Caroline Lopez, Damien Specht and Nicholas Stephanopoulos. Hunton & Williams has partner Virginia Albrecht and associates Aaron Flynn, and E. Carter Chandler Clements working on the case. Sequoia does not have a lawyer listed on the docket.

UPDATED II (5:58 p.m.) In a statement, Sequoia said, "The petition filed by the District relates only to the District's request to review certain information of Sequoia Voting Systems. It is merely a discovery request and does not assert any claims against Sequoia. Sequoia desires to cooperate with the District and anticipates that the matter will be resolved through the usual means of order containing suitable protections for Sequoia's information."

D.C. Circuit Hears Arguments in Comcast v. FCC

During arguments this morning in Comcast, et al. v. FCC, lawyers for cable companies asked the U.S. Court of Appeals for the D.C. Circuit to vacate a cap imposed by the Federal Communications Commission that limits any single cable company from controlling more than 30 percent of cable subscribers.
 
The cable companies, including Comcast, represented by Gibson, Dunn & Crutcher, and Time Warner Cable, represented by Jenner & Block, say the limit restricts their ability to communicate with consumers, and thus constitutes a First Amendment violation. 
 
At least one member of the three-judge panel hearing today’s arguments appeared sympathetic to that argument. Judge Brett Kavanaugh, who has previously been critical of the FCC, asked the FCC’s lawyer, James Carr, whether the government could ever tell Barnes & Noble that it could only sell books to 30 percent of consumers, or whether the D.C. Council could prohibit the Washington Post from being distributed to more than 30 percent of homes in the District. Carr conceded that neither situation was likely.
 
Senior Judge A. Raymond Randolph and Judge Douglas Ginsburg also presided over today’s hearing, which lasted for more than an hour and a half and drew a crowd that filled nearly every seat in the courtroom.
 
The arguments were just the latest installment in a case that spans more than a decade. It dates back to 1992 when Congress passed the Cable Television Consumer Protection and Competition Act, which gave the FCC the authority to limit subscribers in order to foster competition.  In 2001, the D.C. Circuit reversed and remanded the 30 percent cap back to the FCC for further review. Last year, the commission published new rules that reinstated the 30 percent limit.
 
Gibson, Dunn  partner Miguel Estrada, arguing for Comcast, said the Federal Communications Commission misinterpreted the study it relied on when setting the 30 percent limit. A correct interpretation of the data, he said, would lead to a 61 percent cap. In other words, his client, which holds about 27 percent of the cable market, would not qualify as a threat to the success of competitors.
 
Estrada’s spirited arguments, particularly his pop culture references, elicited laughs from the crowd on a number of occasions. At one point, Estrada had to explain his reference to a group of shows “about crazy wives” to a puzzled, but amused Judge Ginsburg. (The BLT assumes he was referring to series like this one on Bravo.)

Jenner & Block partner Mark Schneider argued for Time Warner Cable, and Andrew Schwartzman from the Media Access Project argued as an intervenor supporting the FCC. Other firms involved in the case include Davis Wright Tremaine; Paul, Weiss, Rifkind, wharton & Garrison; Wiley Rein; Sheppard, Mullin, Richter & Hampton; Davis Polk & Wardwell; and Wilkie Farr & Gallagher. 

Supreme Court Rally Planned Next Wednesday

Next Wednesday marks President Barack Obama's 100th day in office, and it's also the final day of oral arguments for the Supreme Court term. What joins those two seemingly disparate events is that on that day, a landmark Supreme Court case on voting rights will be argued, case in which Obama's election has been invoked.

Northwest Austin Municipal Utility District Number One v. Holder is the name of the case, and it's a challenge to the preclearance provisions in Section 5 of the Voting Rights Act. The challengers claim it's no longer necessary for covered jurisdictions to seek pre-approval from the Justice Department for changes in voting procedures and election laws that could dilute minority voting power. One of their prime arguments for saying Section 5 is unneeded, and unconstitutional, is that, as their brief states, "The country has its first African-American president."

But supporters of the law counter that the election of Obama came in spite of numerous voting rights violations, and assert that preclearance is still very much needed to keep making progress in empowering minority voters. 

Civil rights groups will make that point in a demonstration in front of the Court before, during and after the oral argument Wednesday. The NAACP and the NAACP Legal Defense and Educational Fund are joining to stage the demonstration. "If the Supreme Court is to declare Section 5 of the Voting Rights Act to be unconstitutional, our country will take a giant step backwards," says NAACP president and CEO Benjamin Todd Jealous in a statement. "It will seriously undermine the very expansion of democracy that helped us reach the landmark election of the nation's first African American president, whose 100th day in office" will be that day. 

The legal defense fund will be represented inside the Court as well. Debo Adegbile, the fund's litigation director, will have argument time on behalf of African-American intervenors in the case.

Judge Questions Conspiracy Charge in Wone Case

D.C. Superior Court Judge Frederick Weisberg didn’t have promising words today for the three men charged in the Robert Wone case.

None of the men—Joseph Price, Victor Zaborsky, and Dylan Ward—are likely to ever be told with any specificity from the government exactly what each person did to contribute to the conspiracy to obstruct justice after the stabbing death of Wone.

Defense lawyers Thomas Connolly, Bernie Grimm, and David Schertler, say the government has failed to provide specific overt acts to substantiate the conspiracy, obstruction, and evidence tampering charges against the men. The lead prosecutor, Glenn Kirschner, says the defendants are in a position to tell the government more about what went down the night of Aug. 2, 2006.

Price, a former Arent Fox litigation partner who was fired in January, Zaborsky, and Ward have maintained since the murder—and since then—that they’ve provided to the government all that they know about the circumstances of Wone’s death. Prosecutors say Wone was restrained, incapacitated, sexually assaulted, and stabbed in the Swann Street home of Price and Zaborsky on Aug. 2, 2006.

Weisberg, addressing the defendants and their lawyers at an hourlong status conference today, said the fairness of the government’s case will be litigated in the coming months. Weisberg today did not set a trial date. A motions hearing is scheduled for May 22 at 2 p.m.

Comcast v. FCC Expected to Draw Crowd at D.C. Circuit

The U.S. Court of Appeals for the D.C. Circuit is expecting a crowd this morning to hear argument in Comcast Corp. v. FCC, where the cable company is challenging a cap that restricts the number of subscribers any one company can amass. The dispute spans more than a decade and has drawn in some of D.C.’s biggest firms.

The Justice Department’s Antitrust Division and the non-profit Center for Media and Democracy are supporting FCC lawyers in arguing that Comcast, and other cable companies, should not be allowed to control more than 30 percent of the cable market.

Comcast, which does not operate cable service in New York and California, for instance, has about 27 percent of the market.

Gibson, Dunn & Crutcher partner Miguel Estrada is arguing for Comcast today before Senior Judge A. Raymond Randolph and Judges Douglas Ginsburg and Brett Kavanaugh. James Carr is scheduled to argue for the FCC. Jenner & Block partner Mark Schneider is arguing for Time Warner Cable and, among other groups, the National Cable Television Association, in support of Comcast. Verizon, represented by Kirkland & Ellis, is supporting Comcast. Argument is expected to last at least an hour.

The case goes back to 1992 with the passage of the Cable Television Consumer Protection and Competition Act. Congress gave the FCC power to limit the overall number of subscribers to foster competition. The D.C. Circuit in 2001 reversed and remanded the 30 percent horizontal ownership limit to the FCC for further review. The FCC in 2008 published new rules that incorporated the 30 percent cap.

Lawyers for the cable companies and intervenors supporting the companies say the case presents at its core a free speech issue—the ability of a cable company to “speak” to consumers. The FCC, the lawyers argue, is ignoring competition in the market that includes satellite television and Internet-based video.

“The FCC persists in its effort to turn logic and common sense on their heads,” Estrada said in an appellate brief Feb. 25. “In its latest defense of the subscriber cap, the Commission simply asks this Court to trust that it has drawn the lines in the right places.”

Other firms participating in the litigation include Davis Wright Tremaine; Paul, Weiss, Rifkind, Wharton & Garrison; Wiley Rein; Sheppard, Mullin, Richter & Hampton; Davis Polk & Wardwell; and Wilkie Farr & Gallagher.

Morning Wrap

Motor City Madness: The Ford Motor Company posted a $1.4 billion loss in the first quarter of the year, but the company says it still does not plan to seek a federal bailout like its fellow auto companies, The New York Times reports. The company's loss, which comes to 60 cents a share, is a far cry from the $70 million profit Ford posted in the first quarter of last year. While Ford continues to beat expectations, Chrysler hasn't been so lucky. In a separate story, The Times reports that the Treasury Department will direct Chrysler to prepare a Chapter 11 bankruptcy filing as early as next week. The Washington Post reports that a bankruptcy filing by any of the Big Three auto companies could cause retirees to see their pensions and health care funds slashed.

The Memo Divide: The decision to release the now-infamous torture memos was far from an easy call, with many of President Barack Obama's top advisers sharply divided on the issue, The Washington Post reports. Five CIA directors, including Leon Panetta and his four predecessors, and Obama's top counterterrorism adviser were strongly against releasing the memos. In the end, Obama sided with Attorney General Eric Holder Jr., Director of National Intelligence Dennis Blair and White House counsel Gregory Craig, who argued that releasing them could help fix U.S. detainee policy. Word came out yesterday that the move to release the memos was also supported by Defense Secretary Robert Gates, whose argument was that they were going to come out anyway. So what's next? The Los Angeles Times reports that the Obama administration has agreed to release dozens of photographs depicting alleged abuses at U.S. prisons in Iraq and Afghanistan during the Bush White House.

In Case You Missed It: Late last night, the BLT reported that Crowell & Moring has approached several attorneys at the firm and cut their salaries to adjust for the reduced number of hours they are able to bill amid the ongoing economic downturn. Following similar moves by Hogan & Hartson and Wiley Rein, Crowell's salary adjustments show that at least three major Washington firms are no longer able to remain above the fray when it comes to cutting salaries.

Back from the Dead: A California appeals court has resuscitated a legal malpractice claim against Perkins Coie in a protracted battle between the law firm and one of its former clients, The National Law Journal reports via Law.com. A lower court in 2007 dismissed the malpractice action, which claimed that the law firm charged excessive fees and mishandled the case. The former client is claiming about $1 million in actual damages and seeks punitive damages, said the attorney representing the company.

Kids and Their Rock Music: Who knew? As one small Nevada town has discovered, rock 'n' roll cranked to high volumes can be a successful defense against the annual invasion of Mormon crickets, The Wall Street Journal reports. For the past three years, the 13 residents of Tuscarora, Nev. have gotten out their extension cords, placed their stereos in a quarter-circle, and played high voltage rock 'n' roll, full blast, from dawn to dusk. Apparently, the crickets aren't big fans of Led Zeppelin and the Rolling Stones.

Crowell & Moring Marks Third Major D.C. Firm to Confirm Salary Adjustments

Hogan & Hartson did it. Wiley Rein did it. And now Crowell & Moring has confirmed that they’re doing it as well. 

Ellen Dwyer, Crowell & Moring’s managing partner, tells the BLT that Crowell has approached several lawyers at the firm to adjust their salaries to better fit the reduced hours that they are able to bill amid the ongoing economic downturn.

While Dwyer says the firm has so far only had to do it for “fewer than 20 lawyers across the firm,” Crowell’s salary adjustments show that at least three major Washington firms are no longer able to remain above the fray when it comes to cutting salaries. Last year, Crowell ranked No. 7 on the Legal Times 150.

Dwyer says that Crowell requires at least 1,900 billable hours from all of its lawyers, and if they aren’t on track to get close to that figure, “changes sometimes have to be made.”

“If someone is annualizing 1,800 hours, I’m not going to be that concerned. But if they’re annualizing at 1,600 hours, I would be a little concerned,” Dwyer says. She says in those instances, lawyers face a two-step process. They are first approached to see whether their reduced hours are a result of a personal situation or whether it’s because they’re not finding enough work. If that’s the case, Dwyer says the firm will work to guide more work to the affected lawyer. When that’s not possible because of a reduced work flow, she says salary adjustments are taken as a last resort.

“It’s really about retaining our best lawyers, and right now we have a great team of lawyers who are working as hard as they can,” she says. “We just don’t want to get to a place where some of our peers are that have had layoffs or taken other draconian steps.” Crowell has so far been able to avoid catching the layoff bug.

The salary adjustments have only affected lawyers who have been at the firm for at least a year because, Dwyer says, the firm looks at trends over a period of six months. First years have not been affected. “An off month here or there is not going to count against you. Things happen,” she says.

Crowell does not have a tiered compensation structure like Wiley and Hogan, Dwyer says, so the adjusted hour levels are crafted on an individual basis to best meet the needs of the affected lawyers.

So far the reaction to the program has been positive, Dwyer says. “These lawyers that we’ve had to have these conversations with have been appreciative, in part because they’ve seen what has happened to their friends at other firms,” she says. “They don’t want to be in a place where they’re not meeting expectations any more than we want them to be.” Dwyer adds that if lawyers are able to bring in the minimum level of hours after their salaries have been adjusted, “The firm will cut them a check for the difference.”

Holder Won't Rule Out Torture Prosecutions

Attorney General Eric Holder Jr. reiterated today that he would not criminalize policy differences over CIA interrogation methods but left open the possibility that Bush administration officials who sanctioned their use may still be held to account.

In a congressional hearing ostensibly on the Justice Department’s 2010 budget, conversation turned to what critics say was the CIA’s use of torture on suspected terrorists, controversy surrounding the release last week of four legal opinions describing the interrogation methods in detail, and the possibly of trying Guantanamo Bay detainees in federal court.

A coalition of advocacy groups, including the American Civil Liberties Union and the Center for Constitutional Rights, sent petitions to Holder today demanding that he appoint an independent prosecutor investigate the interrogation program.

Holder himself has called one of the interrogation methods, waterboarding, a form of torture, though the attorney general said CIA officers who stayed within the four corners of Justice Department opinions endorsing its use, as well as the use of other harsh methods, are immune from prosecution. He gave no such assurances to the lawyers who authored them, CIA officers who stepped outside the boundaries of the opinions, or officers who may have used the techniques before receiving guidance from the Justice Department. Holder deflected questions about possible criminal prosecutions, but didn't rule them out, either.

"If I see wrongdoing, I will pursue it to the full extent of the law," Holder told members of the House Appropriations Committee’s Subcommittee on Commerce, Justice, Science, and Relate Agencies.

Rep. Frank Wolf (R-Va.), echoing comments by former Vice President Dick Cheney and others, asked Holder to release any legal opinions or memorandums showing the efficacy of the interrogation methods in producing intelligence. Holder said that he was not aware of any such documents and that he only had control of opinions produced within his department.

The Obama administration does not intend to "play hide and seek" with Bush-era legal opinions to advance a political agenda, Holder said, adding that he hoped to release more of them from the department's Office of Legal Counsel after careful review.

Wolf also urged Holder not to prosecute Guantanamo Bay detainees in federal court -- and especially not in the Eastern District of Virginia -- recalling the trauma the community endured during the trial of Zacarias Moussaoui. Holder said no determinations had been made as to where detainees would be tried. But at a speech last week at the U.S. Military Academy at West Point, the attorney general seemed to state as fact that some detainees would face trial in Article III courts.

“There are some detainees who we will likely conclude no longer pose a threat to the United States and can be released or transferred to the custody of other countries. There are others who we will decide to prosecute in federal court,” he said. A third category of detainees -- those who are too dangerous to release, yet present “insurmountable obstacles” to prosecution in federal court -- poses the greatest challenge to the Justice Department, which is leading a review of the detainees, Holder said.

Chadbourne & Parke Cuts Salaries

Andrew Blum, media relations manager at Chadbourne & Parke, has confirmed that the firm will be cutting the base salaries of all non-partner attorneys, administrative personnel and other staff for the rest of the year, starting with the May pay period. He says the firm informed its employees in an e-mail memo earlier today.

Blum says the cuts were necessary because “the current global recession is proving to be longer and more severe than most had forecast."

Blum would not disclose the amount by which salaries would be reduced, and would not comment other than to say that it would affect only Chadbourne’s U.S. offices.

Last month, the firm laid off 25 associates and counsel across its 13 offices worldwide. In he e-mail sent out to the firm, Chadbourne’s management committee says, “We are hopeful that this action will avoid the need for additional reductions in our work force.”

The cuts were first reported on Above the Law.

Read the firm's e-mail after the jump.