The BLT: The Blog of Legal Times

Alleged Judge-Stalker Told Her Lawyer to Withdraw

The lawyer representing a 39-year-old convicted felon accused of stalking D.C. Magistrate Judge Janet Albert, who is the defendant's ex-girlfriend, said at a status hearing today that he may not be appearing on behalf of his client much longer.

"Basically, my client has instructed me that she wishes me to withdraw," D.C. solo practitioner A. Kevin Fahey told Judge Russell Canan of D.C. Superior Court on Oct. 30.

But Canan said any action would have to wait until Monday, Nov. 2, as the defendant, Taylar Nuevelle, wasn’t present in court, the trial has been delayed a half-week already and more delays look imminent. After the hearing recessed, Fahey said he would continue representing his client until he could make a formal declaration.

The status hearing was called this afternoon after a medical emergency precluded Nuevelle from appearing in court on Wednesday when opening arguments were scheduled. At that time, Canan postponed the trial until Monday. But Fahey said today that the trial needs to be pushed back further while Nuevelle undergoes and then recovers from an urgent undisclosed medical treatment.

“I think she’s going to be unavailable [on Monday] because she’s going to be in prep,” he said. “Tuesday, she’s going to be heavily sedated because she is having two procedures.”

Judge Canan looked over notes from a doctor detailing Nuevelle’s situation, but found them insufficient to warrant another holdup. He tried to reach the doctor by phone—recessing the court for about an hour in the meantime—but was unable to connect with the physician.

“I really have no information to guide me as to whether this is urgent medically,” the judge said. “If she has indeed legitimate medical concerns, the court is going to honor those. This just hasn’t been shown to my satisfaction at this time.”

Assistant U.S. Attorney Stephanie Brenowitz expressed more pointed skepticism, saying the “latest information just furthers the government’s concerns that the defendant is trying to delay the trial again.”

The judge and the two lawyers agreed to stay in touch over the weekend in case anything develops.

DLA Piper Getting No Love on the Streets

A pickup truck driving around Washington today displayed a large billboard in its bed accusing DLA Piper of lobbying for an Ethiopian dictator.

The American Lawyer reported last year on the firm's 2008 efforts on behalf of Ethiopian Prime Minister Meles Zenawi and his government to keep Congress from imposing sanctions on the country for human rights violations. In April, the firm released a statement to Above the Law saying that it was no longer representing Zenawi’s government in those matters, but is still helping them with pro bono work relating to a school in Addis Ababa.

Apparently, there are still hard feelings--though we're not sure who has them.

(Photo by Daniel Newhauser)

Top DOJ Fraud Section Supervisors Planning to Leave Justice

The government's lead lawyer in the prosecution of Texas financier R. Allen Stanford is taking early retirement as the Justice Department's Fraud Section prepares to undergo big changes under new leadership in the Criminal Division, several sources with knowledge of the decision said. The decision comes as the Fraud Section chief prepares to leave for work in private practice.

Current and former Justice lawyers say there is tension in the Fraud Section as the Justice Department continues its search for a section chief, a premier post in the department. Assistant Attorney General Lanny Breuer, the head of the Criminal Division, has put a renewed focus on the section and its work prosecuting fraud on a number of fronts—including in the health care, securities and mortgage arenas.

Breuer has said he wants a “rock star” leader for the section, a person who careers speculate will be pulled from the ranks of Big Law. (Breuer joined the department this year from the Washington office of Covington & Burling, where he co-chaired the white collar criminal defense and investigations practice.) Career prosecutors want a chief who has deep prosecution experience rather than a criminal defense lawyer who, perhaps, hasn’t been in the trenches for years.

Career prosecutor Paul Pelletier, the Fraud Section’s principal deputy chief for litigation, is planning to stick around on a contract basis at least until he finishes the Stanford case, according to current and former Justice attorneys. The trial could be more than a year away.

Pelletier’s decision comes several months after Steven Tyrrell, the chief of the Fraud Section, announced he was taking early retirement and stepping down to look for work in the private sector. Pelletier and Tyrrell, a veteran prosecutor who took over the section in 2006, declined to comment about their decisions. Tyrrell and Pelletier both worked as federal prosecutors in Miami. Pelletier was acting chief of the Fraud Section for more than a year before Tyrrell took over.

Equal Justice Works Honors Three Lawyers for Public Service Contributions

Last night, Washington lawyers gathered to celebrate one of the finer aspects of the legal profession--the spirit of public service.

At the annual Equal Justice Works awards dinner, held in the atrium of the Ronald Reagan Building, the organization honored three lawyers who have dedicated themselves to putting their legal skills to work for some of society's least well off.

Equal Justice Works provides two-year fellowships to young lawyers who implement public works projects in under-served communities. At last night’s dinner, David Stern, who serves as chief executive officer of the organization, announced that this year's awards dinner raised over $1.43 million.

Scott Burrill, a University of Iowa College of Law 3L, received the Exemplary Public Service Award for a Law Student for his work representing indigent clients as part of his internship at the Alaska Public Defender Agency. Burrill, who was introduced by Judge Ann Claire Williams of the U.S. Court of Appeals for the 7^th Circuit, said his work for the Public Defender Agency reminded him of “why I went to law school in the first place.”

Equal Justice Works also honored Stanford Law School Dean Larry Kramer with the John R. Kramer Outstanding Law School Dean award for his leadership of Stanford’s effort to make the law school more public service oriented. Under Larry Kramer’s watch, Stanford has expanded its clinical education program, pushed law students to pursue public service after they graduate, and built the international law program to support the increasing globalization of law practice.

Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit presented Larry Kramer with the award, calling him an “outstanding” law school dean who has overseen “a dramatic explosion in public interest programs.”

The final award of the evening, and Equal Justice Work’s highest honor, was presented to D. Bruce Sewell, who received the Scales of Justice Award for his work in founding Intel Corp.’s pro bono legal program. That program has helped thousands of Intel employees put their skills to use as volunteers helping improve their communities. In September, Sewell stepped down as senior vice president and general counsel of Intel to join Apple Inc. as general counsel and senior vice president of legal and government affairs.

The Scales of Justice Award  was presented by Sen. Kirsten Gillibrand of New York, herself a lawyer who left her lucrative partnership at Boies, Schiller & Flexner to go into government service.

In his remarks, Sewell took time to acknowledge the fact that despite the increasing commitment to pro bono work at both law firms and in corporate legal departments “the legal profession is one of the least diverse portions of society in the world, particularly at the senior partner and general counsel level.” According to this year’s National Law Journal diversity special section, the number of minority lawyers at some of the country’s largest law firms has remained relatively flat.

Sewell closed by challenging the lawyers in attendance to “look at ourselves and ask whether we are creating opportunities for young, diverse lawyers.”

“We have the opportunity to share the potential and passion of diverse lawyers, so that one day we may transcend the diversity of race, gender, and religion,” he said.

Former PMA Lobbyists Have Started New Firms

The implosion of lobbying firm PMA Group continues to make news.

Today, The Washington Post reported that leaked documents from congressional ethics investigators show that seven members of a House subcommittee that controls defense spending are under investigation because of their ties to now-defunct PMA.

Of course, just because the lobbying firm is no more doesn't mean that PMA's former lobbyists or their clients have gone away. Back in March, Legal Times reported that several former PMA Group lobbyists had started new firms.

One such new firm, Flagship Government Relations, begun by former PMA Vice Chairwoman Kaylene Green, reported receiving $585,000 in lobbying fees during the third quarter, lobbying disclosure reports show. Another new firm mentioned in that story, Federal Business Group, Inc., registered its first client at the end of March, and since then, has filed a total of 18 new client registrations, lobbying disclosure reports show.

The Morning Wrap

Congressional Ethics Probe: House ethics investigators have been examining more than 30 lawmakers and several aides on issues related to defense lobbying and corporate influence peddling, according to a confidential House ethics committee report prepared this summer and obtained by The Washington Post.

Hogan-Lovells Talks: Also in The Post is a quick look at the ongoing merger discussions between Hogan & Hartson and U.K.-based Lovells. Peter Zeughauser of the Zeughauser Group is advising Lovells.

A President Returned: The de facto government of Honduras has reached a deal that would allow the country's deposed president Manuel Zelaya to return to office, The New York Times reports. The deal would allow Zelaya to serve out the remaining three months of his term.

Deferred, Sort Of: Kaye Scholer is taking an interesting approach to its deferred associates, The New York Law Journal reports. The firm plans to split up its incoming first-year deferred associates, with half working on pro bono work for a reduced salary.

In International News: Now wouldn't this be fun to prosecute? Reuters reports that Bulgarian prosecutors are investigating a new gambling game, dubbed Russian Road Roulette, in which drivers defy death by speeding through red lights for bets of up to $7,400.

Justices, Law Enforcement Officials Pay Tribute to Assassinated Italian Judge

A high-level gathering at the Supreme Court paid tribute on Thursday to Giovanni Falcone, an iconic Italian judge who was assassinated in 1992 as he waged legal war against the Mafia.

Chief Justice John Roberts Jr., along with Justices Antonin Scalia and Samuel Alito Jr., Homeland Security Secretary Janet Napolitano, Deputy Attorney General David Ogden, Deputy FBI Director John Pistole, and former FBI Director Williams Sessions, spoke at the tribute, which was co-hosted by the Italian Embassy. Judge Arthur Gajarsa of the U.S. Court of Appeals for the Federal Circuit, who was a driving force behind the event, also spoke. 

Falcone, instrumental in some of the most important prosecutions against the Mafia in the 1980s and early 1990s, was driving with his wife in Palermo, Italy in 1992 when lookouts spotted his car and triggered a bomb that killed them both along with three bodyguards. He was remembered Thursday for developing the "follow the money" strategy that helped expose Mafia operations.

Roberts opened the tribute, saying "Grazie!" when spectators applauded. "Many in America think the best things in life can be traced back to Italy," he said, citing Scalia and Alito as proof of that proposition. More seriously, Roberts said Falcone had "died in a very real struggle to protect the innocent and stop violence," and deserved to be honored.

Italian Ambassador Giulio Terzi called Falcone a "true interpreter" of the meaning of individual freedoms and the rule of law. "Italy has become a different country" in the years since Falcone's death, Terzi said, in part because of his legacy in reducing the influence of the Mafia. 

Alito, who was U.S. attorney for New Jersey while Falcone was alive, remembered being briefed with a "glowing account" of Falcone's anti-Mafia tactics. "The international community lost a very great man" when Falcone was killed, Alito said. He accused the media of using the Mafia to "slander Italian-Americans." The justice took a swipe at the entertainment industry for the "perversely romantic" image of the Mafia it has "shamefully promulgated."  

Scalia recalled meeting Falcone not long after he became a justice  in 1986. "He was obviously a marked man, and he knew it," said Scalia. Falcone's death caused nationwide "revulsion" in Italy that spurred anti-Mafia efforts, Scalia said. He concluded, "Glory and honor to his name."

Gajarsa recalled Falcone telling him that "a country ruled by law will last forever, but  a country ruled by man will crumble." Gajarsa announced creation of a new organization in Falcone's honor that will promote exchanges between Italian and American judges. The event at the Court was attended by several Italian-American leaders, including Philip Piccigallo and Joseph DiTrapani of the Order Sons of Italy in America, a national organization for people of Italian heritage.

Napolitano praised Falcone as a symbol that even in the face of the "most entrenched criminality," an individual can make significant inroads. She drew parallels between the Mafia and the Mexican drug cartels. Napolitano, who has been mentioned as a possible Supreme Court nominee, sat next to fellow Italian-Americans Scalia and Alito during the event. 

Ogden said many colleagues at the Justice Department still have "extraordinarily fond and strong memories" of Falcone. His strategies have become even more useful, Ogden said, in the "unprecedented explosion" in the use by organized crime of technology and globalization in recent years. Ogden also paid tribute to the three Drug Enforcement Agency employees who died Monday in a military helicopter crash in Afghanistan.

FTC Clears Merger of Schering-Plough and Merck, but Requires Divestitures

The Federal Trade Commission today cleared the way for Schering-Plough's $41.1 billion acquisition of Merck & Co., but required both companies to make significant divestures.

Under the terms of the FTC's consent order, Merck must sell its interest in Merial Limited, an animal health joint venture with Sanofi-Aventis, and Schering Plough must sell its assets related to drugs that treat nausea and vomiting in humans.

The animal joint venture, Merial, generated global revenues of $2.6 billion in 2008, according to the FTC. Merck will sell its interest to Sanofi-Aventis. The FTC was concerned that the combined companies would dominate the market for poultry vaccines - Merial and Schering-Plough together account for about 75 percent of U.S. sales of such vaccines. The two companies are also leaders in medication treating cattle follicular cysts.

The deal also raised concerns related to human drugs. At the time of the merger, Schering-Plough was working on a nausea drug, rolapitant, that would have competed with Merck’s drug, Emend. Both are known as NK 1 receptor antagonists, used for chemotherapy patients and for post-operative nausea and vomiting.

The transaction “likely would have reduced the combined firm’s incentive to launch rolapitant, delaying or eliminating a future entrant to the market,” according to the FTC. Schering Plough must sell its rolapitant-related assets to Opko Health Inc. within 10 days of acquiring Merck.

“The Commission analyzed the likely impact of this proposed transaction and is confident that its order will ensure continued competition in the relevant human and animal health care markets,” said Bureau of Competition Director Richard Feinstein in a statement.

The FTC vote was 2 – 0, with commissioners Pamela Jones-Harbour and William Kovacic recused.

The two companies announced the deal in March of 2009, and the post-merger company will be called Merck.

Schering Plough was represented by William Henry of Howrey, and Merck retained Peter Guryan of Fried, Frank, Harris, Shriver & Jacobson and Thomas Barnett of Covington & Burling.

Top DOJ Official Rejoins Jones Day

Gregory Katsas, who spent the past eight years in high-level posts in the Justice Department's Civil Division, will rejoin Jones Day on Nov. 9. Katsas returns to Jones Day as a partner in the issues and appeals practice.

Katsas (Princeton and Harvard Law) served as assistant attorney general for the Civil Division from June 2008 to January 2009, rising to that position after stints as deputy assistant attorney general, principal deputy associate attorney general, and acting associate attorney general.

While at Justice, Katsas handled or supervised most of the leading civil appeals taken or defended by the federal government, allowing him the chance to argue in every federal appellate court, including the Supreme Court.

His cases have run the gamut of hot-button issues, including the detention of enemy combatants at Guantanamo Bay, the use of national security letters in major counterterrorism investigations, the applicability of the state secrets privilege in litigation about covert CIA activities, the closure of immigration hearings for suspected terrorists, and the constitutionality of federal statutes on subjects ranging from the Pledge of Allegiance to partial-birth abortion. 

As assistant attorney general, Katsas also oversaw all of the Civil Division's enforcement activities under statutes such as the False Claims Act and the Food, Drug and Cosmetics Act.

“You name it. If it was controversial civil litigation, I argued it,” Katsas said in an interview today.

On Tuesday, Katsas was on the Hill representing the only witness opposing legislation that would overturn the Supreme Court’s ruling in Ashcroft v. Iqbal, which held that government officials could not be held liable for the unconstitutional conduct of their subordinates and that a plaintiff must show that each government-official defendant’s individual actions violated the Constitution.

During his testimony to the House Judiciary Committee, Katsas, a former clerk for Justice Clarence Thomas, said that Iqbal and the court’s prior ruling in Bell Atlantic Corp. v. Twombly were “consistent with the vast bulk of prior precedent, and strike an appropriate balance between the legitimate interests of plaintiffs and defendants.”

“Overruling these decisions would threaten to upset pleading rules that have been well-settled for decades, and thereby open the floodgates for what lawyers call ‘fishing expeditions’ – intrusive and expensive discovery into implausible and insubstantial claims,” Katsas testified.  

In a statement, Mary Ellen Powers, managing partner of Jones Day’s Washington office said, "We are very pleased to have Greg back. He was already a great lawyer, but the experience of running DOJ's entire Civil Division obviously adds an extra dimension to his ability to help the firm's clients in a wide variety of matters."

Judge: FTC Cannot Make Lawyers Comply With Identity Theft Laws

The Federal Trade Commission cannot force practicing lawyers to comply with new regulations aimed at curbing identity theft, a federal judge ruled today at the U.S. District Court for the District of Columbia.

The decision offers a reprieve to law firms across the country, which faced a deadline this weekend to put in place programs to meet so-called “Red Flags Rule” requirements. The rules would have forced firms to verify the identities of potential clients.

The American Bar Association, represented by a Proskauer Rose team led by partner Steven Krane, argued that the rules would impose a serious burden on law firms, and sought an injunction and declaratory judgment finding that lawyers were not covered by the rule. The FTC contended that lawyers should be covered, because many of their billing practices, such as charging clients on a monthly basis rather than up front, made them “creditors.”

Judge Reggie Walton said he had trouble accepting the FTC’s definition of a creditor. He said that under their interpretation, a plumber who charges a customer after working on a toilet for two days would be also be considered a "creditor."

“I have a real problem with concluding that Congress intended to regulate lawyers when these statutes were enacted,” Walton said.

Proskauer’s Krane said the judge’s ruling granted all of the relief the ABA sought in the case, but that he expected the FTC to try and appeal.

Asked whether they would appeal the ruling, FTC General Counsel Willard Tom said, “It’s safe to assume the commission is going to consider its options very seriously. We think there is no reason lawyers should be exempt.”