The BLT: The Blog of Legal Times

Appeals Court: Some Speedy Drivers Can Be Arrested In D.C.

If a police officer in the District of Columbia catches you speeding more than 30 mph above the posted limit, you could end up in handcuffs. But if a camera records you blasting along, you'll probably end up with a civil fine.

Two motorists sued the District of Columbia last year over the disparate treatment of speeding offenses, arguing that the city's traffic enforcement policy denies motorists equal protection of law.

The drivers' class action failed in Washington federal district court, and now a federal appeals court has upheld the dismissal of the suit. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit yesterday unanimously rejected the class action.

“There is no question that D.C. has a legitimate interest in deterring speeding to ensure public safety,” Senior Circuit Judge Harry Edwards said in the court’s opinion. “Moreover, it is rational for D.C. to conclude that it can best achieve this interest through the combination of individualized, targeted enforcement” that includes officer stops and camera monitoring.

The District’s traffic enforcement policies “neither burden a fundamental right nor target a suspected class,” said Edwards, joined by senior judges A. Raymond Randolph and Douglas Ginsburg.

The appeals court said the District’s “variable enforcement scheme increases the likelihood that speeding motorists will be detected, and, as a result, it serves as a greater deterrent to violations of traffic laws.”

Lobbying Reform Measures Clear D.C. Council

A bill that would place constraints on lobbyists who try to influence District of Columbia officials cleared the D.C. Council Tuesday.

The Council voted 12-1 in favor of a wide-ranging ethics reform bill that includes provisions that would bar D.C. officials or their staffers from receiving discounted or free legal representation from lobbyists, and would forbid lobbyists from making contributions to committees officials may set up to help them pay for legal defense.

“This is a huge step forward for the Council and the city,” Council Chairman Kwame Brown (D) said in a written statement.

The measure contains several reform proposals that came as a result of ethics allegations against D.C. officials, including Brown and Councilmember Harry Thomas Jr. (D-Ward 5).

Federal agents this month raided Thomas's house as part of an investigation of D.C. officials. In July, Thomas agreed to pay $300,000 as part of a settlement with the city over money he allegedly diverted from the city for mostly personal use. And in June, the D.C. Office of Campaign Finance lodged a complaint against Brown, alleging campaign violations stemming from his 2008 re-election bid.

Councilmember Tommy Wells (D-Ward 6) cast the dissenting vote after two amendments he offered failed to win the Council’s support. The amendments would have increased the transparency on contributions made to elected D.C. officials and candidates for elected office in the city. 

The bill still must receive the signature of D.C. Mayor Vincent Gray and survive a 30-day congressional review period before becoming law. The mayor is reviewing the bill and is expecting to sign it, Gray spokeswoman Ayan Islam said.

The Morning Wrap

Stalemate: The House rejected a Senate compromise to extend a payroll tax break and jobless pay on Tuesday, setting the stage for a showdown that, as The New York Times reports, would have significant financial consequences for nearly every American household.

Ethics Overhaul: The D.C. Council voted yesterday to approve a comprehensive overhaul of the city's ethics laws. The Washington Post reports that the vote caps a six-month effort by the council to respond to a series of ethical controversies and federal investigations.

Breakdown: The Wall Street Journal explores the collapse of AT&T Inc.'s $39 billion acquisition of T-Mobile USA and what it says about the Justice Department under the Obama administration.

Protection: The U.S. Court of Appeals for the 9th Circuit has affirmed a Central District court opinion that a file-sharing provider isn't liable for damages caused by users transmitting copyrighted material. The Recorder has the story.

Denied: The American Bar Association has denied provisional accreditation to the Lincoln Memorial University, Duncan School of Law, The National Law Journal reports.

Amended 3M Complaint Accuses D.C. Lobbyist of Coercion; Davis Calls Charges 'Absurd'

Updated 12/21 12:25 p.m.

3M Corp. has amended its complaint against Washington lobbyist Lanny Davis and other co-defendants, including allegations of blackmail and threats to harm the company’s business with the United Kingdom.

A London court ruled Nov. 7 that 3M must pay $1.3 million in damages for failing to develop an infectious diseases test kit for the U.S. market called BacLite. Since the ruling, 3M and its attorneys have turned their sights on Davis and Porton Group, the original developer of the BacLite technology.

The amended complaint, filed Dec. 9, accuses Porton Group CEO Harvey Boulter and Davis of allegedly demanding payment in excess of $30 million to settle the suit.
3M contends that its business with the U.K. Ministry of Defence has declined by 25% this year. Additionally, the company claims that its sales to the Central Government sector has dropped by 44%.

The complaint specifically names Davis as the mastermind who orchestrated the alleged plot.

“Davis’s offices in Washington, D.C. served as the ‘nerve center’ of a campaign to coerce and intimidate 3M into paying the Boulter Defendants tens of millions of dollars under the guise of ‘settling’ a lawsuit then pending in the U.K. between the Boulter Defendants and 3M,” the complaint said.

The defendants subsequently filed a motion to strike the amended complaint. That motion was rejected by U.S. District Judge Robert Wilkins.

Davis, who said this is the fourth time that 3M has attempted to bring this case against him, called the allegations an “absurd, baseless charge, without the slightest shred of evidence and without alleging a single fact supporting the charge – not one.”

Davis’ attorney, Blank Rome partner Raymond Mullady Jr., said 3M's attacks are unfounded.

"This is 3M’s fourth attempt in six months to file a complaint against Mr. Davis or the Porton companies that can pass the straight face test," Mullady said. "It doesn’t, and we will be asking the Court to dismiss it in its entirety."

William Brewer III, a partner at Bickel & Brewer and lead counsel for 3M, said the evidence in the amended complaint will back up the allegations of blackmail and coercion. 

“The case is unusual in that it so plainly reveals the hubris that sometimes attaches to those in high places who come to believe that they are above the law," Brewer said in a written statement. "As the amended complaint demonstrates, defendants' not only got caught attempting to put inappropriate pressure on 3M and its chairman to pay tens of millions to settle a case with no value, but they continue to deny their plan in the face of almost daily disclosures of new evidence."

Judge Rules Veteran D.C. Defense Attorney Doesn't Qualify as Sentencing Expert

In a long-pending lawsuit against the District of Columbia over the 2002 fatal stabbing of Mikal Gaither as he awaited sentencing in jail, a Washington federal judge ruled (PDF) that a veteran defense attorney could not testify as an expert on what Gaither would have been sentenced to had he survived.

Gaither was stabbed by a fellow inmate as he awaited sentencing on a drug distribution charge. Gaither's family sued (PDF) the city and had tapped long-time defense attorney Michele Roberts, now a partner at Skadden, Arps, Slate, Meagher & Flom, to testify about what Gaither's sentence might have been.

In 2008, U.S. District Magistrate Judge Alan Kay, who was handling pretrial matters, ruled (PDF) that Roberts’ report that Gaither would have received probation didn’t meet the standard for expert testimony. Gaither requested a review from U.S. District Judge Colleen Kollar-Kotelly, the presiding judge.

Yesterday, Kollar-Kotelly affirmed Kay’s order, but said that Roberts could testify generally about the factors that could go into the sentencing of a criminal defendant.

The felony cocaine distribution charge that Gaither pleaded guilty to carried a penalty ranging from probation to 30 years in jail, according to Kollar-Kotelly’s opinion. Roberts’ testimony would go to the family’s $10 million damages request, since his lost earnings potential would be based in large part on how long he was in jail.

Roberts was with the D.C. Public Defender Service from 1980 to 1988 and then in private practice from 1988 and 2001. According to the opinion, Roberts estimated she was involved in between 1,500 to 2,400 criminal drug cases between 1988 and 2001 alone. Since 2001, she has served on the Sentencing Commission for the District of Columbia.

Jessica Rich Tapped to Head FTC's Financial Practices Division

The Federal Trade Commission announced today that Jessica Rich has been tapped to head the Division of Financial Practices. Rich, who joined the FTC in 1991, is currently deputy director of the agency's Bureau of Consumer Protection.

The financial practices division, which is part of the Bureau of Consumer Protection, has become increasingly high-profile since the 2008 financial crisis, and its portfolio continues to expand.

Along with Rich’s promotion, the FTC announced that the “Mobile Team,” led by Patricia Poss, will move under the umbrella of the division as the agency increases its focus on mobile commerce and mobile payment systems.

The financial practices division was previously headed by Peggy Twohig, who moved to the new Consumer Financial Protection Bureau a year ago, where she leads the nonbank supervision team. FTC Chairman Jon Leibowitz praised Rich, who earned her law degree from New York University School of Law, as “exceptionally well-qualified“ for the job.

“A 20-year veteran of the agency, she is a nationally recognized expert in the fields of privacy, data and identity protection, and emerging technologies,” Leibowitz said in a news release. “She has extensive experience in all facets of the agency's practice. Americans will be well-served by someone as smart, fair and tenacious as Jessica."

Daniel Kaufman will replace Rich as acting deputy director of the Bureau of Consumer Protection. Kaufman joined the FTC in 1998 as a staff attorney in the Division of Advertising Practices.

D.C. Circuit Divided Over Fee Dispute In Clean Air Act Case

The lawyers for the Native American tribes and associations that participated in a challenge of rules controlling mercury emissions from power plants are entitled to legal fees and costs for participating in the litigation, a divided appeals court in Washington said today.

The U.S. Court of Appeals for the D.C. Circuit said in a 2-1 ruling that the tribes, which intervened in the litigation on behalf of more than a dozen states, are entitled to collect fees.

But the court declined to weigh in on an appropriate amount. Lawyers for the tribes, represented by Ann Arbor, Michigan’s Kanji & Katzen, are seeking more than $305,000 in fees and costs. Click here here for the fee petition.

The U.S. Environmental Protection Agency said the tribal intervenors are ineligible for fees, saying that the participation in the case did not influence the outcome of the litigation.

Justice Department lawyers, including Matthew Oakes of the Environment and Natural Resources Division, argued in court papers that Congress did not intend to allow intervenors to receive legal fees as nearly automatic as it is for a prevailing plaintiff in certain types of cases.

Legal claims that the tribes raised about treaty rights remain unresolved, the Justice Department said. DOJ lawyers also argued that the tribes’ fee demand is exorbitant. The government said the appeals court should reduce any fee to about $65,000.

Lawyers for the tribal groups urged the D.C. Circuit to award legal fees “for this costly and time-consuming litigation that was unfortunately rendered necessary by the EPA’s intransigence and disregard of its own fundamental obligations.”

Writing for the majority, Judge David Tatel, joined by Judge Judith Rogers, said the tribal groups contributed to the implementation of the Clean Air Act and otherwise served the public interest.

“EPA‘s view, embraced by the dissent—that we should allow fee shifting only where an intervenor affected the outcome of a case as determined after the fact—would discourage interventions that play a useful role,” Tatel said in the court’s ruling.

Judge Janice Rogers Brown voted to block the fee petition. Brown said she was concerned about encouraging fee-seeking interventions. She described as “few and frail” the tools the courts have to prevent individuals and groups from jumping into a case to get legal fees.

Steptoe's Lobby Shop Picks Up GOP House Staffer Caron

Steptoe & Johnson has picked up a Republican senior staffer from the House for its lobbying practice, the firm announced Monday.

Christopher Caron, who most recently served as deputy chief of staff to Rep. Tom Cole (R-Okla.), joined the firm as a senior government affairs adviser in Steptoe's government affairs and public policy group. Caron said that after more than 10 years on Capitol Hill, he wanted some change.

“It was getting to the point where I was looking for new challenges,” Caron said. The former staffer added that he plans to help the firm expand its work on military issues. Throughout his eight years with Cole, Caron served as the congressman’s military legislative assistant, in addition to holding several other posts.

Caron in 2007 became Cole’s deputy chief of staff, directing the day-to-day operations of the congressman’s legislative shop. As deputy chief of staff, he also was Cole's appropriations associate, working to ensure appropriations work was done in compliance with House rules, and acted as the Republican leadership liaison for the National Republican Congressional Committee chairman. Cole has served as a member of the House Appropriations Committee since 2009 and was the NRCC chairman during the 2008 election cycle.

Before he became Cole’s deputy chief of staff, Caron spent four years working for the congressman in capacities that included legislative director, House Rules Committee associate and senior policy adviser.

Caron held legislative assistant positions for then-Reps. Jo Ann Davis (R-Va.) and Helen Chenoweth-Hage (R-Idaho) before working for Cole.

“Chris’s experience on Capitol Hill, particularly his advisory role on the Rules Committee and as a liaison for the NRCC chairman, will provide our clients with a deep understanding and insider’s perspective of how the leadership works,” Steptoe Chairman Roger Warin said in a written statement.

The Morning Wrap

No Deal: AT&T on Monday ended its effort to buy T-Mobile USA, acknowledging that it could not overcome stiff opposition by the Obama administration to form the nation's biggest cellphone service provider, The New York Times reports.

Lobby Pay: The sluggish economy hasn’t stemmed the flow of cash into Washington’s influence industry, where the heads of many special interest groups still take home hefty pay packages — even some who were at the helm when their group suffered a major political loss, Politico reports

Fading: Former House of Representatives Speaker Newt Gingrich's status as the front runner for the 2012 Republican presidential nomination is fading after weeks of attacks by rivals and intense media scrutiny of his political record and personality, Reuters reports.

Undercover: Police officers in Washington posing as gangsters, crooked businessmen and bodyguards helped snag $7.2 million in cocaine, PCP and other drugs, buy and capture 161 weapons, and make 70 arrests in what authorities said was one of their most important weapons investigations in recent history, The Washington Post reports.

Amnesia?: R. Allen Stanford, accused of defrauding investors of more than $7 billion, has claimed he can’t recall family vacations, his business dealings or romantic encounters with women because “59 years were stolen” by a jailhouse beating and anxiety drugs. Prosecutors will argue that his memory loss is faked, Bloomberg reports.

Amid Antitrust Fight, AT&T Drops T-Mobile Deal

AT&T announced this afternoon the company is abandoning its planned $39 billion acquisition of rival T-Mobile USA, a decision that comes just days after asking a federal judge in Washington to postpone antitrust proceedings.

The U.S. Justice Department sued in August in U.S. District Court for the District of Columbia to block the proposed merger, and the Federal Communications Commission recently issued a staff report that criticized the deal.

Lawyers for AT&T, represented by Kellogg, Huber, Hansen, Todd, Evans & Figel, joined DOJ antitrust prosecutors in asking Judge Ellen Segal Huvelle on Dec. 12 to stay the antitrust proceedings. The judge approved putting the government’s suit on hold. She then set a Jan. 18 hearing.

AT&T issued a statement that said in part: “The actions by the Federal Communications Commission and the Department of Justice to block this transaction do not change the realities of the U.S. wireless industry. It is one of the most fiercely competitive industries in the world, with a mounting need for more spectrum that has not diminished and must be addressed immediately.”

The company said it will take a pretax accounting charge of $4 billion this quarter. AT&T said it will enter a “mutually beneficial” roaming agreement with Deutsche Telekom, T-Mobile’s parent company.

The Justice Department did not immediately comment on AT&T’s announcement. A lawyer for AT&T, Mark Hansen, a Kellogg Huber name partner in Washington, was not immediately reached for comment this afternoon.