The BLT: The Blog of Legal Times

Cosmetics Industry: Regulate Us - Better That than 50 Different State Standards

It's not often that industry representatives go before Congress to ask for more federal regulation, but that's what cosmetics makers want from the Food and Drug Administration.

"Even though FDA has repeatedly stated that cosmetics are the safest products they regulate, it is time to bring FDA’s statutory authority up to date,” said Covington & Burling senior counsel Peter Barton Hutt, testifying today before a House subcommittee on behalf of the major cosmetics industry trade association.

For cosmetics makers — a $60 billion category that includes not just lipstick and eyeshadow, but products like shampoo, deodorant, toothpaste and sunscreen — the newfound enthusiasm for federal oversight comes down to this: it’s better than 50 different state standards.

Faced with a growing number of new and inconsistent regulations at the state level, the cosmetics industry has concluded that a uniform national standard enforced by the FDA is preferable — so long as agency rules pre-empt state laws.

“Myriad diverse state regulations would substantially increase the cost of producing and distributing personal care products,” Curran Dandurand, chief executive officer of men’s personal care products company Jack Black, told the Energy and Commerce subcommittee on health. “The consequences for small business owners would be disastrous.”

Insurance firm Nelson Levine de Luca & Horst opens D.C. office

Nelson Levine de Luca & Horst, a Pennsylvania insurance law firm, today announced the opening of a Washington office in response to recent moves to expand the federal government's regulatory role in the industry's modernization.

Speaking by phone on a train en route to the District, Michael Nelson, a partner with the Blue Bell, Pa.-based firm, pointed to the "evolving discussion of how the federal government and insurance industry intersect," including a pending report from the Federal Insurance Office, as the main driving force behind the new location.

The "biggest focal point" he sees is "how much the federal government will involve itself in the insurance industry's day-to-day operations" through the FIO report. Authorized by the Dodd-Frank Act, the FIO acts as the primary contact between the insurance industry and the government, providing information to Congress and federal departments but not actively making policy or engaging in regulation.

Under the Dodd-Frank Act, the FIO report on how best to modernize insurance regulation was supposed to be submitted on Jan. 21, 2012, but has been delayed. To date, the Treasury Department has not said when the report will be released.

While he would not divulge any specific names, Nelson said the firm's clientele list is long on the biggest names in the insurance business.

"I doubt there would be an insurer of any substance that we would not have represented," he said.

According to Nelson, the firm employs 66 attorneys in offices from New York to London. Located at 1455 Pennsylvania Ave. N.W., the Washington office will initially be home only to Susan Stead, a partner in the firm's insurance regulatory and transactional practice. As the date for the FIO report to be released draws nearer, Nelson said, the firm likely will hire several attorneys with federal experience.

Pillsbury Adds Two Communications Lawyers in Washington

Pillsbury Winthrop Shaw Pittman has added two attorneys to its communications practice in Washington, the firm announced Monday.

Lew Paper and Andrew Kersting, formerly a partner and counsel at Dickstein Shapiro, respectively, will retain their respective titles at Pillsbury.

Paper is a former associate general counsel at the Federal Communication Commission and legislative counsel in the U.S. Senate. He has handled matters facing broadcasters, wireless carriers, lenders, investors and industry stakeholders. Paper’s client list has included Chase Manhattan Bank, CIT, Cumulus Media, Royal Bank of Scotland, Wachovia Securities and The WB Television Network, among others.

Paper said that he was attracted to Pillsbury because of its large communications practice and the ability to attract new clients while offering a deeper bench to his existing clients, many of which he said, followed him to the new firm.

“We would be in a position to provide better service to our existing clients and be in a better position to attract new clients,” Paper said.

Judge Blocks Shipment of 'Unapproved' Drug Used in Lethal Injections

A District of Columbia federal judge today ruled in favor of a group of death row inmates seeking a court order to stop the shipment of a "misbranded and unapproved" drug used in state legal injections.

U.S. District Judge Richard Leon found (PDF) that the Food and Drug Administration acted "arbitrarily and capriciously and abused its discretion" in approving shipments of sodium thiopental, commonly known as thiopental, which is used to induce general anesthesia during the lethal injection process.

The FDA had argued that it allowed the shipments out of deference to law enforcement officials when it came to lethal injections. Leon rejected that argument, writing that federal law clearly requires the FDA to review and approve all drugs.

“In the final analysis, the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle,” Leon wrote. “How utterly disappointing!”

Lead counsel for the plaintiffs, Bradford Berenson of Sidley Austin in Washington, said in a phone interview today that Leon’s decision was “gratifying.”

“He saw that the agency was behaving in a clearly unlawful way and took steps to make sure that even the most despised members of society got the benefit of the protections that Congress put in place,” he said.

The FDA, through a spokeswoman, declined to comment.

The inmates, who are in jails in Arizona, California and Tennessee, sued the FDA in U.S. District Court for the District of Columbia in February 2011, accusing officials of approving shipments of thiopental without first reviewing and approving the drug in accordance with the federal Food, Drug, and Cosmetic Act.

Metro Fights to Keep Documents Sealed in Crash Litigation

The Washington Metropolitan Area Transit Authority is asking a District of Columbia federal judge to keep recent filings and proceedings in litigation surrounding a fatal June 2009 Metro rail crash under seal.

Metro, in a brief (PDF) filed yesterday with U.S. District Judge Reggie Walton, outlined its opposition to a request by plaintiffs' counsel to unseal court documents filed under seal by Metro and its co-defendants since February. The filings are "replete with references to confidential settlement communications of the defendants-only mediation," Metro wrote.

Earlier this month, a lawyer for one of the plaintiffs moved to unseal the filings, arguing that the plaintiffs were being unfairly kept out of the loop.

The June 22, 2009 crash of two Red Line trains at the Fort Totten station in Northeast Washington killed nine people and wounded dozens more. The victims and their families filed civil wrongful death and personal injury claims in U.S. District Court for the District of Columbia against Metro and a group of private corporations that supplied rail system equipment.

The bulk of the cases, including seven of the nine wrongful death lawsuits, settled. Four cases – two wrongful death and two personal injury – are still pending. Starting in February, the defendants received court permission to file briefs under seal.

The documents, according to subsequent filings and statements made in court, relate to settlement talks with plaintiffs as well as a dispute among the defendants. Walton acknowledged at a hearing that “a problem” had come up among them, but the details are unknown. On March 13, Patrick Regan of Washington’s Regan, Zambri & Long – a lead counsel for plaintiffs in one of the wrongful death cases – moved to unseal (PDF) those documents.

Crowell Agribusiness Lobbyist Moves to Bergeson & Campbell

Updated 3/29 at 11:21 a.m.

A Washington law firm that specializes in matters concerning chemical products has added a senior agribusiness lobbyist from Crowell & Moring to its public policy practice.

Bergeson & Campbell announced on Monday that John Thorne is serving as senior government affairs counsel at the firm, and as policy and government affairs vice president at its consulting affiliate, The Acta Group. Thorne had been a senior policy adviser at Crowell since 2004, when it acquired Capitolink, a government relations firm he founded in 1993. He previously was a scientist and group leader at E. I. du Pont de Nemours and Co. from 1980 to 1991.

Thorne last year lobbied for nine Crowell clients, including Dow Chemical Co., the Pesticide Policy Coalition and the biofuels division of BP PLC, according to congressional records.

The lobbyist said Crowell was an "absolutely wonderful place to work," but its focus on agriculture had diminished over his time at the firm. Thorne said his new colleagues at Bergeson are "renowned experts" in agribusiness issues.

"I'm looking forward to it," he said.

Justices Seem Skeptical of Individual Mandate in Supreme Court Health Care Arguments

By Tony Mauro

Conservative justices put the Obama administration's top lawyer on the defensive on Tuesday, possibly forecasting a closer-than-expected Supreme Court decision on the constitutionality of the Affordable Care Act dividing along ideological lines.

For a full hour, Solicitor General Donald Verrilli Jr. fielded tough and sometimes hostile questions from Justices Antonin Scalia, Samuel Alito Jr. Chief Justice John Roberts Jr. and Anthony Kennedy, suggesting that they have strong concerns if not doubts about the law's individual mandate requiring most Americans to buy a minimum level of health care coverage.

Kennedy, often a swing vote on the court, said the mandate is "unprecedented" and requires a "heavy burden of justification" from the government as to its constitutionality, because it forces individuals to buy a product. The law changes the relationship between government and the individual, Kennedy said. Verrilli repeatedly portrayed the mandate as a valid regulation of the health care market, but several justices appeared unconvinced. Justice Scalia likened the law to a requirement that people buy broccoli or do regular exercises.

Bancroft partner Paul Clement and Jones Day partner Michael Carvin, by contrast, were hit with fewer questions, except from liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Breyer said Congress was addressing "a national problem" in a way that he seemed to believe was constitutional.

Under the individual mandate, all citizens — except for prisoners and those who have a religious objection — must purchase a minimum level of health insurance, though for those who cannot afford it, the law would provide subsidies to pay for it. The U.S. Court of Appeals for the 11th Circuit declared this provision unconstitutional, because it forces individuals to enter into commerce, rather than regulating existing commercial activity. The purpose of the requirement was to widen the revenue base for health care to help pay for other reforms in the law.

Tomorrow, the Court will consider the fate of the rest of the health care law if the individual mandate is struck down. It will also hear arguments over the law's expansion of the Medicaid program for the poor and disabled. Private plaintiffs and 26 states claim the Medicaid provision, which would subsidize the costs the states would incur, intrudes on the power of states by coercing them to accept a federal program they do not want. On Monday, the Court weighed the threshold question of whether it had jurisdiction to rule on the challenges to the individual mandate.

For continuing updates and background on the arguments, visit our health care hub at www.nlj.com/healthcare.

Tab For The Ted Stevens Misconduct Report: $981,842

The Washington lawyer appointed to investigate alleged prosecutorial misconduct in the Ted Stevens case received almost a million dollars for his work since April 2009, the Administrative Office of the U.S. Courts reported this morning.

The $981,842 payment to Henry “Hank” Schuelke III and his law firm, Janis, Schuelke & Wechsler, is based on compensation at $200 per hour, up until March 2012. The total amount includes reimbursed expenses. The administrative office did not immediately identify the law firm’s expenses.

With Janis attorney William Shields, Schuelke submitted a 525-page report about the collapse of the Stevens case, closely tracking management issues and prosecutorial discovery obligations. Schuelke was appointed in April 2009, when the Justice Department sought the dismissal of the Stevens case.

Schuelke and Shields determined that two assistant U.S. attorneys intentionally withheld evidence from Stevens’ lawyers at Williams & Connolly. Lawyers for the two prosecutors deny the allegation.

The presiding trial judge, Emmet Sullivan of Washington federal district court, described the Schuelke report in a recent ruling as an “exhaustive investigation.” Sullivan refused to keep the report confidential, rejecting requests from four Stevens prosecutors to not publish the document.

Schuelke is scheduled to testify Wednesday morning before the Senate Judiciary Committee about the report. He said in his report, released on March 15, that the Stevens prosecutors cooperated in the probe.

For many years, Schuelke has served as special counsel to the D.C. Commission on Judicial Disability and Tenure. That work has included investigating complaints of judicial misconduct in local courts. Janis, Schuelke & Wechsler has received tens of thousands of dollars for this work, commission records show.

The Morning Wrap

It's Lin-sanity, Bud: Washington D.C. law firm Arent Fox is sending cease-and-desist letters on behalf of new NBA sensation Jeremy Lin, who had a strain of marijuana named after him. As USA TODAY writes: "The lawyers for Jeremy Lin have a message for those dealing 'Linsanity' medical marijuana: you are one toke over the line."

Supremely Heard: All of The National Law Journal's ongoing coverage of this week's healthcare hearings on the Affordable Care Act can be found here. The NLJ's Chief Washington Correspondent Marcia Coyle created a video that analyzes the case and the justices' reactions to arguments just after leaving the high court Monday afternoon. Hearings getting to the heart of the issue start today.

Lott Testifies: Former Senate Majority Leader Trent Lott testified Monday that former Oxford lawyer Richard "Dickie" Scruggs was not a "gatekeeper" when it came to nominees to the federal bench from Mississippi, the Commercial Appeal in Memphis reports. Scruggs is trying to overturn his seven-year prison sentence on attempted bribery charges.

Standing  His Ground: The state legislator who was the main sponsor of Florida's controversial "Stand Your Ground" Law explains why he wrote the statute to NPR. On the Trayvon Martin fatal shooting case,  Florida State Representative Dennis Baxley says: "If anything, this law would have protected the victim in this case; it could have."

Toothless Defense: A DUI defendant in Kansas argued that his dentures may have trapped alcohol in his mouth, causing him to blow a too-high reading on a police breath tester, the Kansas City Star reports. An appeals court disagrees that police should have let him remove them before testing him on the Intoxilyzer 8000.

DOJ to D.C. Circuit: Don't Tell The State Department What To Do

U.S. Justice Department lawyers today urged an appeals court in Washington to shut down a legal dispute over the government's designation of a fringe Iranian resistance group as a foreign terrorist organization.

The U.S. Court of Appeals for the D.C. Circuit in 2010 asked the State Department to take another look at the designation of the group, called the People’s Mojahedin Organization of Iran.

Since then, State officials have not publicly said whether the government will revoke the designation. Lawyers for the Iranian group in February said they were tired of waiting for the State Department to make a decision.

The attorneys, including Viet Dinh of Bancroft and Andrew Frey of Mayer Brown, petitioned the D.C. Circuit to force the State Department to rescind the PMOI terrorist designation or to compel the State Department to act one way or the other within 30 days.

Justice Department lawyers Douglas Letter and Matthew Collette of the Civil Division said today in a court filing (PDF) that the appeals court should deny the PMOI’s petition.

“Secretary Clinton is assiduously carrying out the remand from this Court, which requires the State Department to analyze highly classified and complicated information, and make an extremely challenging, expert predictive judgment about whether the PMOI retains the capability and intent to continue to engage in terrorism, as it has done to deadly effect on many occasions in the past,” Collette wrote.

The decision to revoke the terrorism designation involves “extremely sensitive national security judgments and difficult decisions concerning the best way to avoid possible serious human rights violations,” Letter and Collette said.

The DOJ lawyers said a successful petition demanding Secretary of State Hillary Clinton to act on the PMOI designation raises “serious concerns given her unique international responsibilities.” Clinton travels the world, Letter said, to be on the ground to handle rapidly changing events.

“Any interference by a court with the Secretary’s ability to carry out these absolutely critical duties would set a seriously troubling precedent,” Letter said.