The BLT: The Blog of Legal Times

State, Federal Wiretap Applications Up 34%

Law enforcement officers are listening. More than ever.

State and local authorities received more than 3,100 wiretap approvals from judges last year, an increase of 34% above the number of authorizations the previous year, according to a report released today.

Federal judges, the Administrative Office of the U.S. Courts report said, approved 1,207 wiretaps, and 1,987 were authorized by state judges. Historical data reveal applications are rarely turned down. Only one application was denied in 2010.

Wiretap applications in California, New York and New Jersey accounted for 68% of all state approvals. The report is here and click here for last year's data.

Drug investigations accounted for the majority of wiretap applications, last year. The report said 84% of all wiretaps (2,675) stemmed from drug cases, with homicide and racketeering investigations following. The largest number of state wiretap requests were made in California and in New York.

Authorities reported they encountered encryption during six state wiretaps. But investigators, the report said, still managed to obtain the plain text of the communication.

Wiretaps that were reported as terminated as of December 31 were responsible for more than 4,700 arrests and 800 convictions, the report said. In one case, a federal wiretap in the Northern District of Georgia led to the seizure of more than $3.3 million in cash, 48 kilograms of cocaine and 60 pounds of crystal methamphetamine. A wire in Kentucky led investigators to $4 million and 42 kilos of coke.

Last year, authorities reported that a total of 2,582 arrests and 2,504 convictions arose from wiretaps authorized in previous years.

Record Number of ITC Cases Filed in First Half of 2011

They just keep coming and coming. The number of intellectual property complaints filed at the U.S. International Trade Commission in the first six months of 2011 is well above the pace set in 2010 - which itself smashed previous caseload records.

Between Jan. 1 and June 30, companies brought 42 cases alleging IP infringement under Section 337 of the Tariff Act of 1930 at the ITC. If the deluge continues, it will be a 50% increase over last year.

The 2010 docket of 56 cases was an all-time high, up more than 75% over 2009, as reported in December.

The biggest spike in 2011 came in June, when 14 new cases were filed. Among them: Samsung Electronics suing Apple Inc. over iPhones, iPods and iPads; AU Optronics Corp. suing Samsung and others over flat panel display devices – and Samsung suing AU over liquid crystal display devices; Honeywell International Inc. suing Furuno Electric Co. over GPS systems; and OSRAM GmbH suing LG Electronics Inc. over light-emitting diodes.

“The whole world seems to be focused on Section 337,” said Tom Schaumberg, a name partner at Adduci, Mastriani & Schaumberg, which last year was involved in more ITC cases than any other firm.

Several factors explain the surge in cases, he said. More foreign-based companies like Samsung, Nokia and Toshiba are using the ITC offensively, as are Fortune 500 companies like Apple, Hewlett-Packard Co., and Microsoft Corp. The disputes often involve high-tech products with short shelf-lives, and the ITC’s 16-month average turnaround is crucial.

Given the volume of cases, it’s not clear whether the ITC’s six administrative law judges can keep up the pace. Increasingly, they’ve encouraged parties to settle or mediate cases, and have been holding Markman hearings on patent claim construction.

Schaumberg said he doesn’t expect the second half of the year to be as busy as the first, but in the meantime, “It’s a tremendous workload for the judges.”

Lawsuit Accuses D.C. Police of Unlawful Stop for Taking Photos

An Alexandria, Va., man is accusing a group of Metropolitan Police Department officers of unlawfully detaining him for taking pictures of police activity, according to a suit filed today in Washington federal court.

Last July, according to the complaint (PDF), Jerome Vorus was taking pictures of a traffic stop in Georgetown. Vorus claims that police officers approached him, asked for his identification and questioned him about why he was taking pictures.

Four different officers allegedly told Vorus that it was illegal to take pictures or recordings of Metropolitan Police Department officers without permission from the public affairs office. The complaint notes, “That is not the law in the District of Columbia.”

Vorus also claims police officers told him that they can stop anyone they want, which, Vorus argues, is also false. Vorus walked away after police returned his identification, although he was never told he was free to leave.

The complaint alleges violations of Vorus’ First Amendment right to take pictures of police in public places and his Fourth Amendment right to be free from unreasonable seizure, since he alleges the officers detained him without any reason to suspect he had committed a crime. Vorus is also suing for false arrest and imprisonment.

Vorus is the only plaintiff in this case, but he also accuses D.C. police of making similarly unlawful stops in the past.

“On many other occasions, MPD officers have unlawfully ordered members of the public to cease taking photographs of police officers or police activities in public places,” he writes in the complaint.

Arthur Spitzer, legal director of the American Civil Liberties Union of the Nation’s Capital, is representing Vorus.

“We filed this case not only because we thought Mr. Vorus’ rights were violated, but because we think this is a widespread and apparently growing phenomenon,” Spitzer said this afternoon. “People have the ability to take spontaneous pictures of what’s happening around them, including police activity, in a way they never did.”

A spokeswoman for the Metropolitan Police Department was not immediately available for comment.

DOJ Conducting Criminal Investigation of Deaths of Two Detainees

Attorney General Eric Holder Jr. said this afternoon that a special prosecutor is conducting a criminal investigation of the death of two detainees in United States custody as part of an examination of CIA interrogation abuses.

The special prosecutor, John Durham, who was initially appointed in 2008 to review the CIA's destruction of interrogation tapes, examined the interrogation of 101 detainees who were taken into custody after the Sept. 11 terrorist attacks.

Durham’s expanded role to review interrogation techniques came at Holder’s request to determine whether any federal laws were violated during the questioning of detainees. Holder said previously the department would not prosecute any individual who acted in good faith and within the scope of interrogation guidance from the Office of Legal Counsel.

Holder said today in a prepared statement that an expanded criminal investigation beyond the death of the two detainees is not warranted.

“Mr. Durham and his team reviewed a tremendous volume of information pertaining to the detainees. That review included both information and matters that had never previously been examined by the Department,” Holder said. “Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals.”

Time magazine reported this month that a federal grand jury in Alexandria, Va., is hearing evidence about the November 2003 death of Manadel al-Jamadi at the Abu Ghraib prison.

In HIV Misdiagnosis Case, D.C. Appeals Court Expands Ground for Emotional Distress Claims

Updated at 4:59 p.m.

A Washington man incorrectly diagnosed with HIV can sue his health clinic for infliction of emotional distress, the District of Columbia Court of Appeals ruled (PDF) today, expanding the ground for similar damages claims for the first time since 1990.

Although previous case law limited claims for emotional damages to cases in which a person was in physical danger and feared for his safety, the en banc court found that "physical endangerment" is too limiting a standard.

"Because care for the body and the emotions are so interlinked, and patients often are dependent on their physicians’ exercise of due care, they therefore are susceptible to suffer emotionally as well as physically as a result of their physicians' negligence," the judges wrote, noting the ruling is not limited to cases involving health care providers.

The judges, who ruled unanimously, expanded on the “zone of physical danger” requirement set up in the court’s 1990 Williams v. Baker decision.

The court’s new “supplemental rule” establishes a three-part test: First, the plaintiff has to show that the defendant’s obligation to the plaintiff is tied to the plaintiff’s emotional well-being; second, that there is an “especially likely” risk that negligence could cause “serious emotional distress;” and third, that negligent actions did cause that distress.

In the underlying case, Terry Hedgepeth went for an HIV test in late 2000 at the Whitman-Walker Clinic, now called Whitman-Walker Health, because he had just learned his girlfriend was HIV-positive. A blood test showed Hedgepeth was not HIV-positive but, due to a “human error,” the lab results form was filled out to mistakenly list him as positive.

Hedgepeth believed he was HIV-positive for the next five years. He suffered from severe depression and suicidal thoughts, and engaged in risky behavior, including sexual intercourse with a woman who was HIV-positive, because he thought “there was no reason for [him] to live.”

In June 2005, a series of new tests revealed he was not HIV-positive. He filed suit against the nonprofit and one of its doctors in District of Columbia Superior Court in August 2005.

The trial judge granted the defendants summary judgment, finding that Hedgepeth had failed to pass the “zone of physical danger” test. The appeals court upheld the lower court’s decision in October 2009. Hedgepeth successfully requested an en banc rehearing, which was held last June.

The ruling today overturns the previous decisions and remands the case back to Superior Court.

Hedgepeth was represented by Washington solo practitioner Jonathan Dailey.

"It's a tremendous victory six years in the making, not only for Mr. Hedgepeth, but for all those who suffered emotional distress at the hands of a negligent party," Dailey said this afternoon.

Marc Fiedler of Washington's Koonz, McKenney, Johnson, DePaolis & Lightfoot filed an amicus brief for the Trial Lawyers Association of Metropolitan Washington, D.C., on Hedgepeth's behalf. He said he was pleased the court unanimously adopted the bulk of the association's recommendations.

Alfred Belcuore, also a Washington solo practitioner, argued for Whitman-Walker Health. In a written statement, Belcuore and his client said they were reviewing the decision.

"The Opinion demands committed attention and thoughtful analysis...Once we have completed this study, we will decide what our next steps may be regarding this pending legal matter," they said.

Children’s National Medical Center filed an amicus brief on Whitman-Walker Health's behalf, but a representative there could not immediately be reached.

Updated with additional reporting.

Morning Wrap

Health care win: A panel of the U.S. Court of Appeals for the 6th Circuit upheld the health care reform law on Wednesday. Our Marcia Coyle reports that the main opinion in the first appellate level ruling on the law was authored by former Supreme Court advocate and Bush appointee Jeffrey Sutton.

Confirmation Changes: The Senate confirmation process is still broken, but the Senate voted Wednesday to subject fewer nominees to it. By a 79-20 vote, the Senate reduced the number of executive branch appointees that need to be confirmed, according to The New York Times.

Coulda been: Richard Poff, the Virginia congressman who turned down an offer to be nominated to the Supreme Court in 1971, has died. As The Washington Post reports, Poff wanted to spare his family controversy over his past civil rights views. Lewis Powell Jr. ultimately got the nod.

Unfriending a Facebook Challenger: DLA Piper withdrew from representation of businessman Paul Ceglia, who claimed he owns more than 80 percent of Facebook. Facebook's lawyers at Gibson, Dunn & Crutcher have accused Ceglia of "amateurish forgery" of documents that were supposed to support the claim, according to a report by The AmLaw Daily. 

Ted Stevens Prosecutors Urge Appeals Court To Vacate Contempt Order

Updated 6:01 p.m.

Two federal prosecutors who were held in contempt for allegedly flouting court orders in the Ted Stevens public corruption case in Washington today asked an appeals court to vacate the finding, calling the trial judge's ruling defective.

The prosecutors, William Welch II and Brenda Morris, former supervisors in the U.S. Justice Department's Public Integrity Section, are challenging the contempt finding issued in February 2009 during post-trial litigation in the Stevens case.

Last October, Judge Emmet Sullivan of U.S. District Court for the District of Columbia removed Morris and Welch from under contempt. But Sullivan refused to vacate his initial contempt order. The judge did not impose sanctions against the prosecutors.

“It is no solace to Ms. Morris and Mr. Welch that the court did not follow through with its stated intent to impose further sanctions or that it later characterized the contempt as civil, for they remain adjudicated contemnors,” attorneys for Morris and Welch said today in a filing in the U.S. Court of Appeals for the D.C. Circuit. “Without review by this court, the personal and professional records of Ms. Morris and Mr. Welch will forever include a conviction of criminal contempt.”

Hogan Lovells partners Catherine Stetson and Chuck Rosenberg, who represent Morris, declined to comment this afternoon. Welch’s lawyers—Covington & Burling’s Mark Lynch and William Taylor III, a Zuckerman Spaeder partner—also declined to comment. The joint submission in the D.C. Circuit is here.

Welch and Morris remain under criminal investigation stemming from the botched prosecution of Stevens, who was charged in Washington federal district court with making false statements on Senate financial disclosure reports.

The prosecution was thrown out in the post-conviction stages after the Justice Department determined the trial attorneys did not turn over certain documents to the defense that would have undermined the testimony of a key witness.

One big question is whether Sullivan’s finding was criminal or civil. The judge characterized it as civil in his October 2010 ruling. But lawyers for Welch and Morris said today it was a criminal contempt finding. The prosecutors would not be able to challenge a civil contempt finding on appeal.

Former Wealth Manager Sentenced To Probation In Campaign Contribution Case

A former wealth manager who lied about the source of tens of thousands of dollars in campaign contributions for Hillary Clinton's presidential bid was sentenced today to three years of probation.

Lawyers for Evan Snapper, who pleaded guilty to a false statements charge in January in Washington federal district court, had fought against the imposition of a prison sentence. Snapper faced a guideline sentencing range of between 10 and 16 months.

Senior Judge Paul Friedman of U.S. District Court for the District of Columbia today ordered Snapper to pay a $3,000 fine. A lawyer for Snapper, Steptoe & Johnson partner Evan Barr, said today his client “looks forward to moving on to the next chapter in his life.”

Prosecutors alleged Snapper “knowingly and willfully” caused the Hillary Clinton for President Committee to file false campaign contribution reports with the Federal Election Commission. The reports falsely showed that more than $48,000 in contributions to Clinton came from 21 people when the source was Patricia Cornwell, the crime novelist.

Snapper, who has since resigned from the New York accounting firm Anchin, Block & Anchin, managed Cornwell’s account from 2004 through 2009. In court papers earlier this year, Barr said Snapper “deeply regrets his lack of judgment that led him to commit this offense.”

The Justice Department’s Public Integrity Section did not oppose a sentence of probation, according to court papers filed this month. Much of the government’s sentencing memo is blacked out. In earlier court papers, prosecutors said Snapper had cooperated with the government.

Divided Appeals Court Rules Against FBI In Death Penalty Case

A divided federal appeals court in Washington has ruled against the Federal Bureau of Investigation's refusal to provide a death row inmate information about the men he believes committed a quadruple homicide in Texas in 1983.

The U.S. Court of Appeals for the D.C. Circuit ruled 2-1 this week in ordering the bureau to provide documents to the inmate, Lester Bower Jr., about three Oklahoma drug dealers whom Bower alleges are the real killers. In the alternative, the court said, the agency must at least search for records and argue why any document should not be released.

The court said lawyers for Bower proved the public’s interest in knowing whether the FBI is keeping records secret that could exonerate a man on death row outweighs the government’s concern over protecting the privacy of the men whom Bower blames for the murders.

“The fact that Bower has been sentenced to the ultimate punishment strengthens the public’s interest in knowing whether the FBI’s files contain information that could corroborate his claim of innocence,” Judge David Tatel said for the panel majority, which included Judge Judith Rogers. The court's opinion is here.

Bower, represented pro bono by Morgan, Lewis & Bockius in the appeals court, was convicted and sentenced to death in 1984. Since the conviction, two witnesses have come forward to implicate four Oklahoma drug dealers in the murder. A state judge has stayed Bower’s execution and granted a motion for DNA testing of crime scene evidence. The state proceedings are pending.

Bower’s attorneys in January 2008 filed Freedom of Information Act requests with the FBI and the Executive Office for United States Attorneys seeking information about the bureau’s investigation of the killing of four men at a ranch near Sherman, Texas. The shooter used a silencer, according to markings on the 11 bullets pulled from the victims’ bodies.

FTC Wins Fat Settlement Over Skinny Lotion Ads

Rubbing lotion on your skin will not make you thin, the Federal Trade Commission today reminded us all in a $900,000 settlement involving ads for Nivea Skin Cream.

The FTC busted lotion maker Beiersdorf, Inc for falsely claiming in nationwide television commercials that Nivea My Silhouette! with Bio-Slim Complex “helps redefine the appearance of your silhouette.”

The ad shows a woman getting dressed after applying the lotion to her stomach and thighs. She digs through her closet and finds a pair of old jeans which now - amazingly - fit her. “You can rediscover your favorite jeans. And how they still get his attention,” according to the ad.

The company also allegedly purchased sponsored search results from Google so that when consumers searched phrases like “stomach fat” or “thin waist,” they got Nivea ads suggesting the lotion could tone their stomachs and thin their waists.

Under the proposed settlement, Beiersdorf is barred from claiming that any product applied to the skin causes substantial weight or fat loss or a substantial reduction in body size. If the company does want to claim Nivea (or anything else) will make you lose weight, it has to back it up with two randomized, double-blind, placebo-controlled human clinical studies.

In February, the company settled a class action over ads for its Good-bye Cellulite products for $3.175 million.

FTC Chairman Jon Liebowitz in a press release offered this advice. “The real skinny on weight loss is that no cream is going to help you fit into your jeans,” he said. “The tried and true formula for weight loss is diet and exercise.”