The BLT: The Blog of Legal Times

Smartphone Manufacturer HTC Signs K&L Gates Lobbyists

Updated at 3:36 p.m.

K&L Gates this week informed Congress that it is lobbying on behalf of smartphone and tablet manufacturer HTC America Inc.

According to a lobbying disclosure, the law firm is advocating for the Bellevue, Wash.-based subsidiary of the HTC Corporation in Taiwan on matters related to spectrum, privacy, broadband development and international trade. The account is handled by six K&L Gates lobbyists, including policy and regulatory practice leader Bruce Heiman and former Rep. James Walsh (R-N.Y.).

Heiman and Walsh didn’t immediately respond to requests for comment. Representatives for HTC didn't have an immediate comment.

HTC America first notified Congress in June that is lobbying in Washington. The company spent $10,000 on lobbying related to spectrum, competition and patent litigation issues during the disclosure reporting period that ran from April 1 to June 30.

Apple Inc., maker of the iPhone and iPad, and HTC are at odds with each other over patents concerning wireless technology.

Last year, Apple filed a patent infringement complaint against HTC with the U.S District Court for Delaware and the U.S. International Trade Commission. The ITC in July made an initial determination that HTC violated two Apple patents. The United States might not allow HTC to import some of its phones into the country if the ruling is upheld.

HTC then filed a complaint this month, also with the Delaware court and the ITC, alleging patent infringement by Apple.

“We are taking this action against Apple to protect our intellectual property, our industry partners, and most importantly our customers that use HTC phones,” HTC general counsel Grace Lei said in a statement earlier this month.

In FCPA Sting Case, Prosecutors Revise Discovery Process

Prosecutors in Washington are revising the government's discovery procedure in a closely watched foreign bribery case here, choosing a third-party vendor to store material for which defense lawyers must pay to access.

The new process, announced in a court filing (PDF) Wednesday night in U.S. District Court for the District of Columbia, will change the way material is produced to more than a dozen arms and equipment industry executives and employees charged in a conspiracy to violate the Foreign Corrupt Practices Act.

Prosecutors, including Laura Perkins and Glenn Leon of DOJ’s Fraud Section and Matthew Graves, an assistant U.S. attorney, said the new procedure is designed to streamline the process of getting information into the hands of defense lawyers. Court papers do not reveal the impetus for the change. A Justice spokeswoman declined to comment.

Trial-related material, including witness statements and subpoena returns, will be produced directly to the relevant defendants in advance of trial at the government’s expense. But other defendants must order the information, at their own cost, from a vendor. DOJ chose Arlington-based CACI International to provide litigation support services.

Four groups of defendants are set for trial in the coming months in Washington, including one case in September. The other trials are scheduled for December, February and May. The February trial is a retrial of the first group. A mistrial was declared in that case in July.

At a hearing in the case Aug. 18, lawyers for the six defendants set for trial next month argued the defense teams should not have to pay for access to information.

Responding to the criticism, prosecutors said the rules of criminal procedure do not require the government to cover the cost of all discovery expenses. The rules, prosecutors said, require the government to make material available for production and copying. But DOJ said the government is not obligated to pay the cost of providing information to defense attorneys.

To aid the defendants, prosecutors said the defense lawyers will receive indexes of the information available at CACI. Prosecutors said CACI will not discuss any defense requests for information with the government.

“[T]he defendants can be assured that their defense theories will not be revealed to the government if they obtain data from CACI,” prosecutors said.

The Justice Department said it has negotiated a pricing framework with CACI “that will provide the defendants a significant saving to what they would normally be charged.” A CACI spokeswoman declined to comment.

In the earlier stages of the case, filed in Washington in January 2010, prosecutors said they turned over, on the government’s dime, thousands of hours of audio and video recording to the defendants.

The authorities seized through the execution of search warrants hundreds of thousands of pages of documents and more than 75 computers. All of the search warrant information will be available at CACI, prosecutors said.

Prosecutors said they’ve developed a process with CACI to ensure any privileged, confidential or sensitive information is protected and that disputes are promptly handled.

Adam Safwat, an assistant chief in the DOJ Fraud Section, is the lead attorney on the government’s filter team, which will examine documents outside the presence of the trial attorneys.

U.S. District Judge Richard Leon is scheduled to meet with prosecutors and defense lawyers on Sept. 1 for a status conference. The next trial in the prosecution is scheduled for Sept. 22.

The Morning Wrap

WikiLeaks Records: The Wall Street Journal reports that, according to WikiLeaks, federal prosecutors obtained a judge's order for account records from WikiLeaks' Web hosting provider as part of an inquiry into the alleged unauthorized disclosure of government documents.

Now You See It: The New York Times reports on a 134-page decision on Wednesday from the New Jersey Supreme Court that could reshape the handling of eyewitness testimony in criminal cases nationwide.

Juice Fight: Pom Wonderful LLC is suing Ocean Spray Cranberries Inc. for trademark infringement. Pom wants to go to trial in November. Ocean Spray wants to go to trial in 2012. The FTC is in the middle. The National Law Journal has the story.

Record Sentence?: Federal prosecutors want a sentence of 12 years and seven months for a former speaker of the Massachusetts House in what they say would be the most severe federal sentence ever in a political corruption case in the commonwealth, The Boston Globe reports.

Animals Knew: The Washington Post reports on the strange behavior of animals in the National Zoo just before Tuesday's earthquake.

Litigator Socarras Joins Chadbourne & Parke's D.C. Office

Michael Socarras has joined the Washington office of Chadbourne & Parke as a partner, the firm announced Wednesday. He'll work with the firm's commercial litigation, international dispute resolution and investigations practices.

Socarras has experience resolving disputes through negotiation, arbitration and litigation. He specializes in public international law, commercial, intellectual property and regulatory matters. Previously, Socarras was a partner at McDermott Will & Emery. He also previously served as a law clerk for U.S. Court of Appeals for D.C. Circuit Judge James Buckley.

“We are very pleased to welcome Mike to the firm. His combination of skills and international experience will provide meaningful insights to our clients and litigation practice generally,” Chadbourne managing partner Andrew A. Giaccia said in a written statement. “The breadth of Mike's professional experience is an important addition to our U.S. and international dispute resolution and investigations practices.”

Nomination for Federal Circuit Required Persistence

A recent nominee for the U.S. Court of Appeals for the Federal Circuit endured multiple White House interviews during a two-and-a-half-year period before he was chosen, according to a Senate questionnaire the nominee filled out.

Judge Evan Wallach wrote in response to the questionnaire that he first interviewed with the White House Counsel’s Office for a federal appellate judgeship in January 2009, the same month President Barack Obama was sworn into office. He interviewed with White House lawyers again in July 2009 and July 2010 before the Justice Department’s Office of Legal Policy picked up the process in February 2011.

Wallach writes that the interviews were for “various circuits.” Last month, Obama nominated him for the Federal Circuit. Since 1995, Wallach has sat on the U.S. Court of International Trade, based in New York.

Wallach credits Senate Majority Leader Harry Reid (D-Nev.), for whom he once worked, for moving the process along. “I have long been interested in public service at the circuit court level, and Senator Reid has been very supportive of this desire,” he writes. He adds in the questionnaire (PDF) that the White House interviews were, “as far as I know, because of [Reid’s] requests.”

It is common for senators to recommend their current or former counsel for federal judgeships. As the Senate’s highest-ranking Democrat, Reid’s recommendation would likely have particular weight. Another recent appellate nominee, Judge Adalberto Jordan for the 11th Circuit, writes in response to the Senate’s questionnaire (PDF) that former Sen. Bob Graham (D-Fla.) gave him guidance on the judicial selection process.

It’s less common for the selection process to take as long as two and a half years. Jordan, a federal district judge, was nominated less than four months after he first contacted the White House.

Wallach has already sat by designation on several federal courts, including the 2nd, 3rd and 9th Circuits. The Federal Circuit, based in Washington, hears appeals from the Court of International Trade. The American Bar Association committee that rates judicial nominees unanimously voted Wallach well-qualified.

Before becoming a judge, he spent two decades as a litigator in Las Vegas, focusing initially on litigation related to the Employee Retirement Income Security Act. His practiced turned toward media law, and he represented outlets including the Nevada Press Association and the Las Vegas Review Journal. He served as Reid’s general counsel in the Senate in 1987-88.

Through a court clerk, Wallach today declined to comment. Spokespeople for Reid and the White House did not immediately respond to requests for comment.

Updated at 3:51 p.m.

LivingSocial Multi-District Litigation Assigned to D.C. Court

A group of consumer class actions filed in federal courts across the country against LivingSocial were consolidated this week into a single multi-district litigation to take place in Washington, according to court records.

In an order (PDF) filed Aug. 22 in U.S. District Court for the District of Columbia, the U.S. Judicial Panel on Multidistrict Litigation granted LivingSocial's motion to consolidate the five cases—filed in federal courts in California (northern and southern districts), D.C., Florida and Washington state earlier this year—into a single action. The request was supported by the plaintiffs in all of the cases.

The multi-district litigation was assigned to U.S. District Judge Ellen Segal Huvelle. The panel noted that Washington was considered the most appropriate forum because LivingSocial is headquartered here.

The plaintiffs have accused LivingSocial of placing unlawful expiration dates on the “daily deals” at local businesses that are sold through the company’s Web site. The lawsuits allege violations of local consumer protection laws and the Credit Card Accountability Responsibility and Disclosure Act, which bars expiration dates of less than five years on gift certificates.

“LivingSocial and its retail partners offer these gift certificates with illegal expiration dates well aware that many consumers will not use the gift certificates before the expiration date,” the complaint (PDF) originally filed in D.C. states. “LivingSocial’ s deliberate and systematic use of abbreviated expiration dates harms and deceives consumers in the District of Columbia and throughout the United States.”

A LivingSocial representative could not immediately be reached for comment.

The plaintiffs are being represented by Charles LaDuca and William Anderson of Washington’s Cuneo Gilbert & LaDuca and Christopher Ellis of Bolen, Robinson & Ellis of Decatur, Ill. LivingSocial is being represented by a team from Cooley’s Washington, San Francisco and San Diego offices, according to court records. None of the attorneys could immediately be reached for comment.

Similar class actions were also filed earlier this year against Living Social competitor Groupon Inc., another daily deal site. Those cases were converted in June to a multi-district litigation, which was transferred to the U.S. District Court for the Southern District of California.

DOJ To Oppose $90.8M Fee Request In Black Farmers Class Action

The U.S. Justice Department is planning to oppose the $90.8 million legal fee request in the black farmers' loan discrimination case in Washington federal district court.

Justice lawyers said in a recent court filing the government will litigate the plaintiffs' attorneys assertion that they should receive 7.4% of the $1.25 billion settlement.

The settlement, reached in February 2010, set the fee range between 4.1% and 7.4%. The deal between the government and farmers resolved claims among people who missed a court-imposed deadline to participate in an earlier settlement that involved discrimination allegations.

The U.S. Department of Agriculture has called the settlement fair and reasonable. But that doesn’t mean the government is entirely on board with the plaintiffs’ lawyers, who include Gregorio Francis of Morgan & Morgan, Andrew Marks of Crowell & Moring and Henry Sander of Chestnut, Sanders, Sanders, Pettaway & Campbell.

“Although the USDA submits that this settlement agreement provides potential class members an opportunity to obtain meaningful relief for their claims while fairly resolving the parties’ respective litigation positions, the government does not agree with every point made by plaintiffs in support of final approval of this settlement agreement,” DOJ lawyer Tamra Moore of the federal programs branch said in court papers.

Moore did not articulate why the government will oppose the $90.8 million fee request. DOJ lawyers have not yet filed a formal opposition to the fee petition.

In two other recent large class actions in Washington where the plaintiffs’ lawyers asked for the maximum fee allowed, DOJ called the petitions excessive. DOJ argued in those cases the class members should receive as much of the settlement fund as possible.

The Morning Wrap

Rock n Roll: It was not a killer quake, nor even a particularly injurious one. But if yesterday's 5.8-magnitude earthwuake didn't add up to a natural disaster, it was still a startling geological event, the strongest East Coast tremor in 67 years, and it effectively blew up the workday in Washington, the Washington Post reports.

Death or Victory: A beleaguered Muammar Gaddafi vowed on Wednesday to fight on to death or victory after jubilant rebels forced him to abandon his Tripoli stronghold in an apparently decisive blow against the Libyan leader's 42-year rule, Reuters reports.

Charges Dropped: The sexual-assault case against Dominique Strauss-Kahn was dismissed Tuesday, bringing an abrupt end to what had been a three-month episodic criminal investigation, each chapter offering a sensational twist on the underlying storyline, according to The New York Times.

9/11 Families: Attorney General Eric Holder is set to meet Wednesday with the families of several victims of the Sept. 11 attacks to update them on his investigation into whether their relatives’ phones were hacked by Rupert Murdoch’s News Corporation, according to Politico.

Pro-Foreclosure: Financially troubled condo associations are taking banks to court as foreclosure delays enable delinquent homeowners to stay in their buildings for years, often without paying dues that keep boards running, Bloomberg reports.

Linklaters Partner to Head New Swaps Oversight Office at CFTC

The head of Linklaters U.S. structured finance & derivatives practice has been named director of the Commodity Futures Trading Commission's new Division of Swap Dealer and Intermediary Oversight.

Gary Barnett, a specialist in the global swaps market, joins the CFTC at a crucial time, as the agency works to implement the first regulation of the $600 trillion market for over-the-counter derivatives. The commission’s expanded oversight comes under the Dodd Frank Act, which was signed into law in July 2010.

Barnett, who did not return a call seeking comment, has been a partner at Linklaters in New York since 2004. Before that, he was co-head of the securities and derivatives practice at Shearman & Sterling.

“Gary Barnett comes to the CFTC with a vast knowledge of the swaps market,” said commission Chairman Gary Gensler in a news release. “His derivatives expertise will be essential to leading the CFTC’s new division, which will be integral to implementing the Dodd-Frank provisions that will lower the risk of the swaps market to the overall economy.”

Barnett will have his work cut out for him. According to Davis Polk & Wardwell, which issues monthly reports tracking agency Dodd Frank rulemaking, the commission as of July had finalized 11 rules and missed the deadlines for 39 others.

The 600-person agency has also been far more heavily lobbied than other regulators implementing Dodd Frank, the firm’s analysis suggests. In the year since the financial overhaul passed, outside parties have met with commission staff 978 times, compared to 354 meetings with Federal Reserve officials, 322 meetings with the Securities and Exchange Commission, and 127 at the Federal Deposit Insurance Corp.

Earthquake Shakes D.C.; Courts and Law Firms Shut Down for the Day

View from the U.S. District Court for the District of Columbia, courtesy of court officials.

Updated at 6:02 p.m.

A 5.8-magnitude earthquake shook Washington this afternoon, shuttering most of the city's legal institutions.

The earthquake hit just before 2 p.m. News reports place the epicenter in a region northwest of Richmond, Va., but tremors could be felt along the East Coast, as far north as Maine and as far south as North Carolina. The Associated Press reported that a D.C. fire department spokesman said there were numerous injuries, but none initially serious. The temblor struck at 1:51 p.m.

The city’s federal and local courts were evacuated shortly after the earthquake hit. The federal courts will remain closed for the remainder of the day, with the expectation that they will reopen tomorrow morning. At least two trials underway in U.S. District Court for the District of Columbia were interrupted, including a Colombian narcotics case and a fraud case.

The local courts will also remain closed, with the exception of adult arraignments and new juvenile referrals, according to court spokeswoman Leah Gurowitz. Gurowitz said that jurors in the process of jury selection have been asked to return tomorrow morning at 10 a.m. to the appropriate courtroom. Anyone with a pending matter scheduled for Tuesday afternoon are also being asked to report back on Wednesday.

A Justice Department spokeswoman, Jessica Smith, said shortly before 3 p.m. that department employees had returned to the Main Justice building and business had resumed. Justice Department employees were outside for about 20 minutes before heading back inside.

On Capitol Hill, activity was already at a minimum because of the August recess, so the earthquake didn’t disrupt any hearings. The Senate, though, had been scheduled for a pro forma session at 2:30 p.m. The session was postponed.

Staff members said the Capitol building and all office buildings on the House and Senate sides were evacuated. Staff had not been allowed back in as of 3:20 p.m. Beth Levine, spokeswoman for Republicans on the Senate Judiciary Committee, said her office’s staff “all got out just fine.”

Workers across downtown Washington streamed out of office buildings as soon as the tremors were felt.

Workers evacuating in downtown D.C., courtesy of Michael Scarcella.

Several of the city’s law firms reported closing for the day. Rebecca Carr, a spokeswoman for Covington & Burling, said that firm had shut down for the day. Carr said the firm’s building, which also has Sutherland Asbill & Brennan as a tenant, was completely evacuated.

Other firms evacuated temporarily but were back at work when reached later this afternoon. Hogan Lovells managing partner J. Warren Gorrell Jr., said attorneys there “evacuated but are back in the office and back to normal as if nothing ever happened.” Gorrell said the building shook and the lights flickered for about 15 seconds.

McDermott Will & Emery spokesman Chad Torbin said the firm is “back to business, more or less.” Torbin said staff could leave if they wanted to go home, however, so the office is operating “around half capacity at the moment, maybe a little less.”

Cozen O’Connor partner Bernie Grimm said that when the earthquake hit, he was “reading a Supreme Court opinion that was poorly written and had a bad result.”

“I was looking for any distraction and I got one,” he said. “Spent the next hour in Farragut Park on a perfect day. Unfortunately when I came back the opinion was still on my desk.”

Local law enforcement reported damages at several buildings. The Associated Press reported that at least three of the four pinnacles at the National Cathedral in Northwest Washington fell off and that a central tower appears to be leaning.

D.C. Police Chief Cathy Lanier said in a statement that city police officers were maintaining a “heavy presence” in the community and that a helicopter was flying over the District for a visual assessment of damage.

This post was reported by Jenna Greene, Matthew Huisman, David Ingram, Andrew Ramonas, Mike Scarcella, Karen Sloan and Zoe Tillman, and was written by Tillman.