The BLT: The Blog of Legal Times

District's Post-Heller Firearm Restrictions Are Upheld

Judge Ricardo Urbina of the U.S. District Court for the District of Columbia has just ruled that the D.C. firearm ordinances enacted after the Supreme Court's D.C. v. Heller decision in 2008 "permissibly regulate the exercise of the core Second Amendment right to use firearms for the purpose of self-defense in the home." Urbina dismissed a case brought by Dick Heller, the same plaintiff who challenged the previous D.C. ordinance at the Supreme Court.

Heller challenged the District's firearms registration process, its ban on assault weapons, and its prohibition of "large capacity ammunition feeding devices," claiming they violated the Second Amendment. In analyzing the Supreme Court's Heller decision, Urbina said the Second Amendment right to bear arms "is not unlimited." He cited Justice Antonin Scalia's admonition that the Court's decision, while declaring an individual right to bear arms, did not "cast doubt" on a range of firearms regulations. Urbina said he was applying "intermediate scrutiny" to D.C.'s new ordinances, and under that standard, he concluded the regulations were permissible because they serve the District's "important governmental interest" in public safety.

Gun control advocates applauded the ruling as proof that the 2008 Heller decision did not sweep away all forms of firearm regulation. "Today’s court decision is the latest ruling to make it clear that the Second Amendment allows strong common sense gun laws,” said Paul Helmke, president of the Brady Center to Prevent Gun Violence. “Once again, the courts have rejected the gun lobby’s attempt to transform the core right to guns in the home for self-defense into a mandate for their ‘any gun, anywhere’ agenda. Politicians and legislatures at all levels should stop using the Second Amendment as an excuse for inaction against gun violence. They should follow the District’s example and pass the strong, common sense gun laws Americans need and demand to protect their communities.”

Check back later for further updates and reaction to today's ruling.

UPDATE: D.C. Attorney General Peter Nickles offered this written statement in reaction to the ruling: “I am gratified that the Court repeatedly recognized the reasonable and conscientious efforts that the Council and the Mayor made to strike the proper balance between addressing the legitimate rights of firearm owners, and taking every reasonable action to assure the safety of the District’s residents and visitors.”

Heller's lawyer Stephen Halbrook said this afternoon the decision was disappointing, and "I'd be surprised if we don't appeal." Halbrook, a Virginia lawyer and Second Amendment scholar, commented that even though Urbina said he was using an intermediate level of scrutiny in appraising the D.C. law, he was in fact overly deferential toward the city. "He repeated uncritically whatever the [D.C. Council] committee report said." Halbrook also said the ultimate fate of the D.C. ordinance may depend in part on what the Supreme Court says about how fundamental the right to bear arms is in the pending case of McDonald v. City of Chicago.

Akin Gump Buys Parven Pomper Strategies

Akin Gump Strauss Hauer & Feld has acquired the Democratic boutique lobbying shop Parven Pomper Strategies, adding six lobbyists to Akin’s Washington office.

In a related move firm has also picked up Democratic Leadership Council founder Al From, whose firm, The From Group, has a strategic relation ship with Parven Pomper Strategies. From will be a senior adviser at Akin.

The team from Parven Pomper Strategies and From will officially join Akin in mid-April.

The Parven Pomper team includes Scott Parven and Brian Pomper, who join as partners; Alixandria Lapp, who is a senior policy adviser; and Francine Friedman Grabowski, who is a senior policy counsel. Roger Murry and Sarah Crnkovich will join Akin as policy analysts.

The Parven Pomper Strategies team lobbies on behalf of FedEx, the U.S. Chamber of Commerce, Chevron, Pfizer, Time Warner Cable Inc., and Visa.

Before founding PPS in 2006, Parven was vice president and counsel at Aetna, where he oversaw international public policy. He has also served as vice president for public policy at AOL Time Warner. Prior to going in-house, Parven served as chair of international public policy at Mayer Brown.

Pomper, who was also a co-counder of Parven Pomper Strategies, served as chief international trade counsel for Chairman Max Baucus on the Senate Finance Committee, advising the committee on all aspects of its international trade and economic agenda. Before going into government service, Pomper was an associate at Skadden, Arps, Slate, Meagher & Flom.

From joins Akin from The From Company. He is not listed in the Senate lobbying disclosure database.

The news was first reported by the National Journal.

In an interview, Parven said that joining Akin allows his team to "sit at the big-boy table" because Akin has a much larger platform than Parven Pomper Strategies. "Because of our size, we couldn't be involved in every major policy issue out there. Joining Akin allows us to do that."

Akin currently has about 45 professionals in its public policy practice.

Joel Jankowsky, a senior executive partner at Akin, said that the firm wanted to make the pick ups because it would add "an experienced team of young, energetic public policy professionals with a great deal of expertise." He declined to comment the cost of the deal.

"This was such a good combination that it seemed like a natural fit," Jankowsky said.

Freshfields Sued in Racketeering Case

British mega-firm Freshfields Bruckhaus Deringer is facing a federal racketeering suit that claims the firm participated in a scheme to deprive a Colorado energy company of its oil exploration rights in the Caribbean.

The suit, filed March 17 by Denver-based RSM Production Corp. at the U.S. District Court for the District of Columbia, alleges that the law firm, which represented the island nation of Grenada in an international arbitration against the company, “had knowledge that their retainer was being paid through [a] corrupt relationship.”

According to the complaint, the arbitration involved a dispute over the exclusive rights to search for oil off Grenada’s coast, which RSM had won in 1996. Grenada challenged the deal in 2004, claiming that RSM had missed the deadline for submitting its license. A panel with the International Centre for Settlement of Investment Disputes agreed, and the decision is now pending in an annulment proceeding, according to the complaint.

But RSM claims that the arbitration was in fact funded by a company with corrupt ties to the Grenadian government called Global Petroleum Group. The company, according to the complaint, was formed by two Russian nationals, including a convicted felon, for the purpose of bribing Grenadian officials and wanted the oil rights for itself. After RSM lost at arbitration, the complaint states, Global Petroleum was handed the rights.

RSM claims that Freshfields knew exactly what was going on. It says that the firm was likely aware that DLA Piper turned the arbitration down after due diligence and that it would have been clear that “an extremely cash-poor” country such as Grenada could not have afforded Freshfields’ services. RSM also alleges that Freshfields was aware that Global Petroleum was paying its fees and that it would have likely known that Global Petroleum’s CEO had a felony conviction after a basic check.

As of now, RSM is represented by Kelly Pride Hebron of Largo, Md.’s Pride Law Office. New York solo practitioner Daniel Abrams is awaiting admission pro hac vice. The suit seeks at least $500 million and names Freshfields as well as partner Brian King and principal consultant Jan Paulsson. Neither the firm nor King or Paulsson immediately responded to requests for comment.

“We certainly think that they knew of enough facts that would at some point put a reasonable attorney on notice that they were being funded through a corrupt relationship,” Abrams said.

Funeral Home Companies Win FTC Merger Approval

Living or dead, the Federal Trade Commission has got your back.

In approving a merger between the nation's largest and fifth-largest funeral and cemetery services providers, the agency today said it would require multiple divestitures.

Funeral giant Service Corporation International, which owns 1,073 funeral homes in 43 states and the District of Columbia, and 357 cemeteries in 31 states, announced a deal to buy Keystone North America Inc. for about $200 million in October. Keystone owns 196 funeral homes and 15 cemeteries.

To win agency approval of the deal, the combined company must sell 22 funeral homes and four cemeteries to a FTC-approved buyer within 90 days. According to Service Corp., the properties generate annual revenue of $25 million.

In requiring the sale, the FTC charged that the merger would unlawfully increase market concentration in 19 local markets.

In Yuma, Ariz., for example, it would decrease the number of funeral service providers from three to two.

The agency argued that the market has a high barrier of entry for new companies because customers tend to use the same funeral home for multiple generations, plus “the availability of suitable land, and local zoning, health and environmental regulations impact significantly the ability of firms to enter with new cemetery service locations.”

The FTC also noted that, “There are no products or services that are reasonably interchangeable with or viable substitutes for cemetery services. “

The commission vote approving the order was 4 – 0.

Service Corporation was represented by James Weiss at K&L Gates, and Keystone North America was represented by Alan Rutenberg of Foley & Lardner. Weiss declined to comment without consulting his client and Rutenberg did not immediately return a call.

FTC lawyers who worked on the case include Andrea Ryan, Matthew Reilly, Richard Feinstein and Norman Armstrong Jr.

Citing Precedent, Panel Upholds Soft-Money Ban

Updated at 4:37 p.m.

A three-judge panel in Washington ruled today that the Federal Election Commission can enforce a federal ban on so-called “soft money” contributions to political parties, in a case that’s being closely watched because of its potential to reach the Supreme Court.

The decision is one of two important campaign-finance rulings today. In the other, a case involving SpeechNow.org, the U.S. Court of Appeals for the D.C. Circuit ruled unanimously en banc that the federal government cannot limit donations to independent political groups.

The soft-money case was heard by a special three-judge panel, under a provision in the 2002 McCain-Feingold campaign-finance law that allows for expedited review of constitutional challenges to that law. The panel consisted of Judge Brett Kavanaugh of the D.C. Circuit and U.S. District Court Judges Rosemary Collyer and Richard Leon of the District of Columbia

The panel’s decision turns aside a challenge to the law from the Republican National Committee and local GOP affiliates, who want to be able to solicit unlimited donations from individuals.

In a 20-page opinion, the panel did not attempt to sort out completely the First Amendment questions in the case. Instead, the judges ruled unanimously that they were bound by the Supreme Court’s 2002 ruling in McConnell v. FEC, in which the Court upheld Congress’ attempt to restrict large donations from individuals to parties.

“As a lower court, we do not possess the authority to clarify or refine McConnell in the manner suggested by plaintiffs,” the judges wrote in granting summary judgment to the FEC.

But, in their analysis, the judges did note a new “disparity” as a result of the Supreme Court’s recent ruling in Citizens United v. FEC striking down limits on what outside groups can spend in a campaign.

“Under current law,” the panel wrote in a footnote, “outside groups — unlike candidates and political parties — may receive unlimited donations both to advocate in favor of federal candidates and to sponsor issue ads. We recognize the RNC’s concern about this disparity, which, it argues, discriminates against the national political parties in political and legislative debates. But that is an argument for the Supreme Court or Congress.”

James Bopp Jr., who represents the RNC and other plaintiffs, said he was heartened by the panel’s analysis. Bopp said he is anticipating an appeal, but that his clients have not made a final decision. “I would say that the case is set up very favorably for review by the U.S. Supreme Court,” said Bopp, a name partner in Indiana’s Bopp, Coleson & Bostrom.

The McCain-Feingold law requires the Supreme Court "to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal."

An FEC spokeswoman said the commission was still studying the opinion.

UPDATE (1:36 p.m.): Marc Elias, who represented the Democratic National Committee in siding with the FEC, said today’s two campaign-finance rulings reaffirm existing precedent “in a straightforward fashion.”

“SpeechNow basically says: We are bound by and will follow the Supreme Court decision in Citizens United. And the RNC decision basically says: We are bound by and will follow the Supreme Court decision in McConnell,” said Elias, chair of the political law practice at Perkins Coie.

Foley Hoag Lands Michael Wyatt from Hogan & Hartson

Michael Wyatt has left Hogan & Hartson ahead of its May 1 merger with Lovells to join Foley Hoag as a partner in Washington.

Wyatt, who was a partner at Hogan, focuses on advising small business investment companies on structuring, fund formation, licensure, regulatory, operational, taxation, transactional, restricted operations, liquidation, receivership matters.

Wyatt served as general counsel of the Small Business Association from 1991 through 1993. He is also a former associate deputy secretary at the Labor Department. In private practice, Wyatt has previously worked at Semmes, Bowen & Semmes and Proskauer Rose

In a statement, William Kolb, Co-Managing Partner of Foley Hoag, said, “Mike has spent his career building a true specialty serving the needs of SBICs and SBLCs. His government experience allows him to navigate the complexities involved in serving these entities, and he is widely regarded as one of the country’s foremost experts in SBA matters.”

Wyatt could not be reached for comment.

D.C. Circuit Strikes Down Limits on Donations to Independent Political Groups

In the first major campaign finance decision since the U.S. Supreme Court tore down restrictions on corporate spending during elections, a federal appeals court ruled today that the government also could not limit donations to independent political groups.

The case, SpeechNow.org v. Federal Election Commission, was the first serious test of the justices’ ruling in Citizens United v. FEC. In that case, the high court found that bans on independent expenditures by corporations that did not coordinate with campaigns were unconstitutional. Today’s decision by the U.S. Court of Appeals for the D.C. Circuit essentially expanded the bounds of that ruling.

In an opinion written by Chief Judge David Sentelle, the unanimous en banc court found that because Citizens United held there was no corruption-fighting purpose in limiting independent spending, there was also no reason to cap the donations to groups that would be doing that spending.

“[T]he First Amendment cannot be encroached upon for naught,” Sentelle wrote.

The suit was brought by nonprofit group SpeechNow, represented by Institute for Justice lawyer Steven Simpson. The group challenged an FEC opinion that would have forced it to organize as a political committee and abide by certain reporting and funding requirements, such as caps on the amount given by individual donors.

The FEC had tried to argue that Citizens United did not apply in the case because the earlier decision involved spending limits, not contribution limits. It said restrictions on the latter should be subject to a less stringent standard of review.

The court said the standard of review did not matter, because the government simply had no interest in limiting contributions to independent groups. The court emphasized that its decision applied only to independent groups like SpeechNow and would have no effect on limits on direct contributions to candidates.

Despite scrapping the donation limits, the court ruled that SpeechNow still has to organize as a political committee and fulfill the FEC’s financial reporting requirements. The court said that complying with those rules would place a minimal burden on the group’s First Amendment rights.

“[T]he public has an interest in knowing who is speaking about a candidate and who is funding that speech,” Sentelle wrote. “Further, requiring disclosure of such information deters and helps expose violations of other campaign finance restrictions, such as those barring contributions from foreign corporations or individuals.”

Institute for Justice lawyer Bert Gall said that critics of Citizens United who believed it would give large corporations too much leverage in politics should celebrate today’s decision. He said it would now make it easier for less wealthy individuals to pool their resources.

“Now free speech in America is free for everyone,” Gall said.

An FEC spokeswoman said the commission was still studying the opinion.

ACS Adds to Board, Loses Goodwin Liu as Chair

The American Constitution Society has brought on eight new board members, including frequent U.S. Supreme Court advocate Andrew Pincus of Mayer Brown, the co-head of the securities-litigation practice at Latham & Watkins, and a former president of the Hispanic National Bar Association.

In addition, Goodwin Liu has stepped aside as chair of the board after his nomination to the U.S. Court of Appeals for the 9th Circuit, a spokesman for the liberal legal organization said. Liu, a law professor and associate dean at the University of California at Berkeley, faces a difficult confirmation process in part because of his membership in advocacy organizations. He remains an ACS board member.

ACS has strong ties to the Obama administration. Lisa Brown, the White House staff secretary, is a former executive director of the group, and Attorney General Eric Holder Jr. is a former board member.

The new board members, besides Pincus, are: Lisa Blue-Baron, a name partner at Baron & Blue in Dallas; David Brodsky, a partner at Latham & Watkins and co-chair of its securities-litigation group; Elizabeth Cabraser, a name partner at Lieff Cabraser Heimann & Bernstein; Shauna Marshall, a law professor and academic dean at the University of California Hastings College of Law; Ramona Romero, corporate counsel for logistics and energy at Dupont and former president of the Hispanic National Bar Association; Philippa Scarlett, a partner at Kirkland & Ellis; and Daniel Tokaji, an associate law professor at Ohio State University.

Antonia Hernández, president of the California Community Foundation, is serving as acting chair.

ICE Opens New Airport Facility

U.S. Immigration and Customs Enforcement (ICE) has opened a new facility to hold illegal immigrants being sent back to their home countries - a 25,000 square foot converted airport hangar near the Phoenix-Mesa Gateway Airport.

ICE has been under fire in recent months for the conditions in some facilities where suspected illegal immigrants are detained pending hearings on their cases and removal to their home countries. ICE head John Morton has pledged to overhaul the system and add new facilities.

The new Arizona Removal Operations Coordination Center can hold 157 detainees, though none are likely to be there long – it’s intended for people awaiting ICE-chartered flights back to Honduras, Guatemala or El Salvador.

This year, ICE’s Arizona office expects to send more than 22,000 people back to Central America – twice as many as in 2006.

“ICE's goal has been to fly out persons who are here illegally as quickly as possible after a judge's final order of deportation or removal," said Mark Lenox, deputy assistant director of the Office of Detention and Removal Operations Removal Management Division in a statement. "This state-of-the-art facility in a critical area like Mesa in one of the busiest states in the union for alien removals is very important for my program and for ICE."

Morning Wrap

Bauer's Power: In the Washington Post's Style section, check out this profile of Bob Bauer, the new White House counsel. He's won praise for his diplomacy that helped win over anti-abortion Democrats in the health care debate, but other challenges lie ahead. 

Name Game: Late yesterday, the White House announced the names of new judicial appointees for the D.C. Superior Court and for the U.S. Court of Appeals for the 9th Circuit, all with D.C. connections. Our BLT posts are here and here.  

Bopp on Top: We haven't heard the last of James Bopp Jr. by any means, according to this story in the Washington Post. Bopp, who launched the Citizens United case, has expanded staff to keep up legal attacks on campaign finance restrictions.

Stevens' Leavin': The New York Times surveys the landscape of possible replacements if Supreme Court Justice John Paul Stevens retires, as many expect he'll do in coming weeks. D.C. Circuit judge Merrick Garland is portrayed as the safest choice, but given President Barack Obama's post-health care momentum, he might try for a more liberal option. Our take on the state of play from Monday is here.

Place Race: Lawyers crowded a San Diego courtroom Thursday to debate over the proper venue for the growing number of class action and other suits being filed against Toyota over safety issues. Our Amanda Bronstad has the story.