The BLT: The Blog of Legal Times

Womble Carlyle Swipes Biotech Patent Team from Pillsbury

Womble Carlyle Sandridge & Rice has landed a team of four biotech patent lawyers and two patent agents from Pillsbury Winthrop Shaw Pittman.

Thomas Cawley Jr., who joins as a partner, said he started at Womble Carlyle on Nov. 2. The rest of his team has been coming over individually since then to ease in the transfer of clients. The final members of his team started work at Womble Carlyle last week.

Joining Cawley are Linda Hutchinson, who is counsel to the firm; Julie Meigs and Russell Timm, who are both associates; Bernard Brown II, a biotech patent agent; and Nidhi Chotani, a software patent agent.

Cawley said he made the move because the rates at Womble Carlyle are “friendlier” than at Pillsbury and its intellectual property practice is entirely based on the East Coast. The practice has lawyers in Washington, North Carolina, and Atlanta. “It’s a lot easier to work with people who are in the same time zone,” Cawley said.

Cawley, who had been at Pillsbury since 2002, said that his team represents Pfizer Inc. and Syngenta Biotechnology Inc., and that both are coming to Womble Carlyle. He said his clients, like many others, are anxiously awaiting the Supreme Court’s decision in Bilski v. Doll. The case could undermine his clients’ ability to obtain patents on methods of treatment and diagnosis, Cawley said. “We’re waiting to see whether this will help us or whether it hurts us.”

Two Top SEC Officials Leave For Private Practice

Two high-level lawyers in the Securities and Exchange Commission's Division of Enforcement have left the agency to return to private practice.

George Curtis, who previously served as deputy director of the Enforcement Division, returned to Gibson, Dunn & Crutcher yesterday as a partner in the securities enforcement practice. He will work from the firm's Denver and Washington offices. Prior to his three-year stint at the SEC, Curtis had been with Gibson Dunn for more than 30 years.

Also yesterday, Luis Mejia started work in DLA Piper's securities enforcement and litigation practices in the Washington office. Mejia, who joined the firm as a partner, has spent the past 10 years at the SEC, rising to the position of chief litigation counsel of the Enforcement Division. Before joining the agency, Mejia was a partner at Akin Gump Strauss Hauer & Feld.

Curtis said there is no connection between his and Mejia’s decision to leave. Mejia echoed Curtis on that point, saying he has two children about to enter college and returning to the private sector “was a great opportunity at a great time.”

In separate interviews, Curtis and Mejia said they expect the SEC’s enforcement efforts to increase under the Obama administration. Curtis said, “We’re likely to see a more creative focus on penalties that haven’t been used in recent times and even an increase of new guidelines that haven’t been there before.” He said those penalties include nonprosecution agreements, industry-wide enforcement programs, and programs tailored to specific companies.

Mejia said, “The SEC will be continuing to look at issues related to the Foreign Corrupt Practices Act, hedge funds, insider trading, and allegations of financial fraud.”

Civil Rights Lawyer John Silard Dead at 80

John Silard, who along with his law partner Joseph Rauh Jr. was one of the pioneers of civil rights law in the 1950s, '60s and '70s, died on Nov. 29 in Washington. He was 80.

Rauh and Silard represented government officials accused of subversive activities, minority public school students, and Vietnam War protesters. According to Rauh’s 1992 obituary in The New York Times, in 1952, they represented writer Lillian Hellman, who was subpoenaed by the House Committee on Un-American Activities. Four years later, they represented playwright Arthur Miller, who was indicted on contempt-of-Congress charges for refusing to name names of former associates with left-wing sentiments. Miller was convicted of the charges but was later cleared by a federal appeals court after a two-year legal battle.

In a Supreme Court case in the late 1960s, Rauh and Silard won full compensation for Japanese Americans whose assets had been seized by the U.S. government during World War II. According to an oral history given by Rauh for the Historical Society of the District of Columbia Circuit, “That is the only big fee we ever got in our life.”

Silard’s son Timothy said that as a labor law litigator in the 1960s and 1970s, John Silard won major cases on behalf of Walter Reuther’s United Automobile Workers and other unions. Silard and Rauh also represented Joseph “Jock” Yablonski, the challenger to W. A. “Tony” Boyle's corrupt leadership of the United Mine Workers of America. Yablonski was killed within weeks of losing a union election to Boyle. The two lawyers worked with Miners for Democracy, a protest faction within the UMWA that unseated Boyle in 1972. A federal investigation later concluded that Boyle had ordered the assassination of Yablonski, and in 1974 he was convicted of first-degree murder.

Silard and Rauh filed suit against the Nixon administration for failing to enforce civil rights laws against racially segregated school. “My father was the kind of lawyer who fought hard for those in the labor and African American movements,” said Timothy Silard, who as president of the Rosenberg Foundation is a civil rights lawyer himself. “We grew up around the major players in those movements. It was always around us. I remember people like Thurgood Marshall calling on Joe Rauh and my dad.”

Silard retired from legal practice in the late 1980s.

He was born in Vienna, Austria, in 1929 and was raised in Budapest, Hungary, until his family fled the Nazi invasion. He emigrated to New York in 1938. Silard graduated from Columbia College and Columbia Law School. During the Korean War, he served in the Air Force Judge Advocate General’s Corps.

Federal Appeals Court Rules Against Former Government Lawyer

A former government lawyer who successfully sued the Federal Energy Regulatory Commission for age discrimination missed his shot to seek interest on the award he received for back pay, a federal appeals court in Washington said Tuesday.

John Winslow sued FERC for age discrimination and, after a bench trial, a judge found in his favor. The ruling was in 1987. FERC paid Winslow nearly $180,000 in full back pay without interest, court records show. More than two years later, Winslow filed court papers seeking prejudgment interest under the Back Pay Act.

Magistrate Judge John Facciola of the U.S. District Court for the District of Columbia ruled against Winslow in June 2008, saying his motion for prejudgment interest was untimely filed. Citing Supreme Court precedent, Facciola said Winslow had a 10-day window in which to file the motion. Winslow appealed. Winslow's lawyer said the interest is at least $100,000.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously agreed yesterday in an opinion written by Judge Brett Kavanaugh. The panel noted the Supreme Court’s ruling in 1989 in Osterneck v. Ernst & Whinney, where the Court said a motion for discretionary prejudgment interest must be filed within 10 days of the judgment. The Supreme Court suggested in a footnote said that a motion seeking mandatory prejudgment interest also must follow the 10-day rule.

A lawyer for Winslow at Swick & Shapiro in Washington argued in the D.C. Circuit in September that the Supreme Court footnote should not be controlling since it is dicta—an aside that doesn’t address the specific facts of the case before a court. At oral argument in September, Richard Swick, arguing for Winslow, urged the panel judges to go beyond dicta, saying that Winslow has a statutory right to the interest.

Chief Judge David Sentelle, sitting with Judges Thomas Griffith and Kavanaugh, were not so moved. Sentelle said in court “[w]e’re biting off an awful lot if we tell the Supreme Court, we know what you think but we’re not going to follow it because it’s dicta.” Kavanaugh said in court that he doubted the footnote was overlooked in the Supreme Court’s unanimous opinion.

“We decline Winslow’s invitation to flout the Supreme Court decision in Osterneck,” Kavanaugh wrote in yesterday's opinion.

Swick said there's been no immediate decision to challenge the D.C. Circuit opinion.

The Battle for Laterals

Forgive the shameless plug, but if you're in Washington on Dec. 14, we hope that you will check out a National Law Journal and Legal Times panel with a group of legal business power players on the hunt for lateral partners. Our panelists include J. Warren Gorrell, chair of Hogan & Hartson; R. Bruce McLean, who chairs Akin Gump Strauss Hauer & Feld; legal recruiter Lynn Mestel; and Thomas Milch, chair of Arnold & Porter. NLJ Editor in Chief David Brown will moderate. The panel will be held at the Willard InterContinental Hotel. Registration begins at 3 p.m., with the panel at 3:45 and a cocktail reception to follow. For more information or to register, visit www.almevents.com/laterals.

Perkins Coie Taps Marc Elias to Succeed Robert Bauer as Political Law Practice Chair

For Perkins Coie, the announcement that its own Robert Bauer had been named to replace Gregory Craig as White House counsel meant the firm needed to find someone else to chair its political law practice group. Enter Marc Elias.

Elias, who has been a partner at the firm since 2001, will take over Bauer's role as chair of the firm's political law practice when Craig's resignation becomes official on Jan. 3.

While at Perkins Coie, Bauer, who has served as President Barack Obama’s personal lawyer since 2005, turned its political law practice into one of the most highly regarded in the field. The practice boasts an impressive list of clients, including the Democratic Senatorial and Congressional Campaign committees, and the Democratic National Committee. The firm also advises numerous congressional candidates, non-profit organizations and political action committees on compliance issues related to campaign finance laws, lobbying disclosure rules, and legislative and executive branch ethics codes. The practice comprises 10 lawyers and nine non-lawyer compliance specialists.

Elias said he and Bauer have already begun transitioning leadership responsibilities. “One of the great things Bob did was to ensure clients had relationships with all of the other lawyers in the practice,” Elias said in an interview last night. “We have already started talking to clients, making sure they are informed of what is going on and ensuring that their needs are being met.” He added that he doesn’t expect Bauer’s departure to affect the practice’s client portfolio.

Elias grabbed headlines earlier this year when he served as lead counsel for now-Sen. Al Franken (D-Minn.) during the recount dispute launched by former Sen. Norm Coleman. Elias argued and won a unanimous ruling from the Minnesota Supreme Court which affirmed that Franken had received the highest number of votes. “It was an unbelievable experience,” Elias said. “I spent six months in Minnesota during the course of the litigation. As much fun as Minnesota is, it’s very nice to be back in Washington.” (Click here for The NLJ’s Q&A with Elias after the Minnesota Supreme Court’s ruling.)

Elias’s past clients also include the Kerry-Edwards presidential campaign in 2004 and Chris Dodd for President during the 2008 primary campaign. More recently, Elias represented New Jersey Gov. John Corzine during his unsuccessful bid for reelection.

Elias said Perkins Coie’s political law practice is already gearing up for the 2010 midterm elections. “I’m excited to take over as chair of the practice,” Elias said. “It’s been growing a lot in recent years as our client base has grown, and it’ll be exciting to continue providing them with high-quality service.”

Online Federal Clerkship Applications at All-Time High

The federal judiciary saw a huge spike in online applications for clerkships from last year, according to a release from the judiciary.

The Web site used by about two-thirds of all federal judges to find clerks saw 401,576 electronic applications between Oct. 1, 2008 and Sep. 30, 2009. That’s a 66 percent increase from that time period last year, when 241,529 applications were turned in.

The applications came from only 10,722 applicants this year, meaning each applied for an average of about 38 clerkships. That’s a 42 percent increase over last year’s applicant pool, which was 7,556. Last year, each clerk hopeful applied for an average of about 31 jobs.

The increases make sense, said Kirsten Solberg, a Harvard Law School clerkship advisor. She said law firms and public-interest employers have been slashing positions because of the state of the economy.

“Clerkships have been relatively stable as an alternative and are attracting people who had not previously considered them,” Solberg said. “Given the increased competition, applicants have cast wider nets in their search for clerkships, applying to various types of judges in various locations.”

Fifty-two percent of this year’s applicants were law school graduates and 48 percent were third-year law students. But 68 percent all the applications were generated by third-year law students, meaning they applied for more clerkships on average than their graduated peers.

It’s definitely not an increase in the number of participating judges that accounts for the spike, said Dick Carelli, a spokesman for the federal courts. There were 1,244 clerkships advertised this year. While that’s more than last year, the rise was modest compared to the boost in applications.

The online application system has been in use since 2005, when it saw 94,693 applications from 4,902 applicants. In 2006, 5,614 applicants submitted 174,363 applications and the next year 7,556 applicants submitted 180,832 applications.

DOJ Taps Denis McInerney as Fraud Section Chief

By Mike Scarcella

The Justice Department announced today that it has tapped a Davis Polk & Wardwell partner to serve as its new Fraud Section chief.

The Department has been searching for a new chief since this summer, when Steve Tyrrell announced he was stepping down. The new section chief, Denis McInerney, accepted the position today, according to Assistant Attorney General Lanny Breuer. Breuer said today that McInerney brings an “extraordinary career as a lawyer” to the section.

According to McInerney’s online biography, he was as an assistant U.S. attorney for the Southern District of New York from 1989 to 1994, and served as a deputy chief of the Criminal Division from 1993 to 1994. In 1994, he served as an associate independent counsel in the Whitewater Investigation alongside independent counsel Robert Fiske Jr.

Stay tuned to The BLT for more info.

Details Leak on Hogan Lovells Structure

Updated (6:08 p.m.)

We already knew Hogan & Hartson and Lovells intended to merge their names into Hogan Lovells if the proposed combination is approved by the two firms' partnerships, but Legal Week has more details on the proposed merger. According to Legal Week, Hogan Lovells would have two partnerships and two profit pools.

Lovells' U.S.-based partners would join Hogan's partnership, and Lovells would take on Hogan's international partners.

Hogan Lovells would, however, bring the compensation structures of the two firms into closer alignment, with Lovells implementing a structure similar to Hogan's merit-based model for partner pay. Legal Week reports that 85 percent of Lovells’ profits for equity partners would be allocated on a point-based system.

The changes to Lovells’ pay structure, Legal Week reports, would mark the latest step taken by the firm to move away from the lockstep approach traditionally used by U.K.-based firms. Lovells has already made significant changes to its lockstep structure, rewarding revenue contributions over seniority. There are also expected to be some minor adjustments to Hogan's current pay model.

Read the full Legal Week story here.

Gibson Dunn Promotes 11 to Partner

Gibson, Dunn & Crutcher has announced its new class of partners and with 11 lawyers being promoted, including three in Washington, this year's class is down slightly from last year. In 2008, the firm promoted 13 lawyers to partner.

Jeffrey Thomas, who chairs Gibson Dunn's partner evaluation committee, said the dip in the number of partner promotions was a result of the economic downturn. But Thomas said that despite the recession, the demand for work in the majority of the firm’s practices has been "pretty much business as usual."

“In some of our practices, like M&A, private equity, and securities, work has slowed a bit, so for an individual who practices in one of those areas, the workload may factor into whether they were promoted,” Thomas said. “There were probably cases were an individual was deferred a year to see how that practice is doing a year from now.”

Thomas said that Gibson Dunn begins evaluating associates in their seventh year at the firm to see whether they will make partner after their eighth year. The firm does not have an “up or out” policy, Thomas says, so it is not unusual for an associate to have their promotion deferred one or two years to keep practice headcount in line with workloads. “We look at each case individually and do an in-depth evaluation. Obviously, the first consideration is the skill set of an individual," Thomas said. "But the second step is the practice area. It’s definitely possible that there were one or two individuals who were asked to wait a year that might have made it if the corporate world was going gangbusters." He added that for those who were promoted, “It really speaks to the quality of these people.”

The associates who were promoted in Washington are Elizabeth Ising, whose practice focuses on corporate and Securities and Exchange Commission regulatory matters; Benjamin Rippeon, who does tax work; and Geoffrey Sigler, who is a member of the firm’s litigation and health care practices. This year’s class also includes four promotions in Los Angeles and one promotion each in the firm’s offices in San Francisco, New York, Paris, and Century City, Calif. offices. The promotions take effect on Jan. 1.