The BLT: The Blog of Legal Times

Thompson Coburn's New Lobby Shop Gets Busy

Thompson Coburn's government affairs shop in the past five days has registered to lobby for its first three clients since it opened its doors in February.

The firm's lobbying and policy group in Washington is advocating for Overstock.com Inc., semiconductor manufacturer STMicroelectronics Inc. and the Association for Information Communications Technology Professionals in Higher Education, according to paperwork the shop filed with Congress.

The organizations in 2012 were clients of Dow Lohnes Government Strategies, which Thompson partners Kenneth Salomon, James Burger and Christopher Murray, as well as senior manager of government affairs Haley Davis, left to form Thompson's lobbying and policy group. Prior to the shop's opening, Thompson this year only was registered to lobby for the Los Angeles County Metropolitan Transportation Authority.

K&L Gates Lobbyists Add Asteroid Miners to Client Roster

Updated at 3:13 p.m.

K&L Gates has registered to lobby on an out-of-this-world matter: asteroid mining.

The firm notified Congress last week that it is advocating for Planetary Resources Inc. on issues related to quarrying the celestial bodies, but not on any particular legislation. The Seattle-based company says on its website it is "establishing a new paradigm for resource discovery and utilization that will bring the solar system into humanity's sphere of influence."

Former Representative Bart Gordon (D-Tenn.), a K&L Gates partner, is handling the account with firm partners Daniel Ritter and R. Paul Stimers, as well as associate Stephen Roberts.

Convicted Lobbyist Asks Full D.C. Circuit to Review Prosecution

Earlier this year, in upholding the conviction of prominent former lobbyist Kevin Ring, a federal appeals court in Washington called the distinction between legal lobbying and criminal conduct "subtle." The court went on to say that the line "spells the difference between honest politics and criminal corruption."

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that heard Ring's case was unanimous in its late January ruling in the high-profile prosecution, which flowed from the Jack Abramoff lobbying scandal in Washington. Still, the judges said "this case is nothing if not close."

Ring's lawyers at Miller & Chevalier on Monday asked the full D.C. Circuit to review the panel decision, arguing that the ruling conflicts with U.S. Supreme Court precedent and decisions in other federal appellate courts. Ring's petition is here.

Miller white-collar defense partners Timothy O'Toole and Andrew Wise said the panel opinion incorrectly resolved two issues of "exceptional importance"—the role of campaign contributions in an honest services case and whether such a prosecution requires proof of a bribery agreement.

Faegre Baker Daniels' Lobbying Arm Signs Health Care Lobbyist

The lobbying arm of Faegre Baker Daniels in Washington has picked up a health care lobbyist who most recently worked at Podesta Group.

Anne Marie Polak has joined FaegreBD Consulting as a vice president in the shop's health and biosciences group. A onetime aide to former House Majority Leader Dick Armey (R-Texas) and George W. Bush's 2004 presidential campaign, Polak spent five years at Podesta.

"This is just an awfully nice group of people to work with," Polak said of her FaegreBD colleagues.

Covington Bolsters Lobbying Practice with Addition of Former Senator

Updated 6:03 p.m.

Former Senator Jon Kyl (R-Ariz.) has joined the lobby shop at Covington & Burling, the firm announced Wednesday.

Kyl, who retired in January as the second-highest ranking Republican in the Senate, joins as senior adviser in the public policy and government affairs practice. He will advise clients on the policy aspects of tax, health care, defense, national security and intellectual property. During the two-year lobbying ban on former senators, which does not extend to the executive branch, he said he'll primarily be advising clients on these issues.

"I practiced law for almost 20 years in Phoenix before my career in politics," Kyl said. "The skills that I acquired as the minority whip and other leadership positions convinced me that I can offer to clients a lot of judgment and wisdom that is difficult to come by otherwise."

Prior to joining Congress, Kyl spent his legal career with Arizona-based firm Jennings, Strouss & Salmon. During his tenure with the firm, he said he worked on a variety of matters related to everything from real estate to insurance defense to water law, as well as legislative lobbying.

DOJ Takes Swipes at D.C. Circuit's Recess Appointment Ruling

The U.S. Justice Department this week offered its first extended, public analysis of the controversial court ruling in Washington that invalidated President Barack Obama's recess appointments to a federal labor board.

Top DOJ officials have until March 8 to decide whether to ask the U.S. Court of Appeals to reconsider its conclusion that Obama overstepped his authority last year when he used his recess appointment power to install three members on the National Labor Relations Board.

On Thursday night, DOJ, in a pending labor dispute in a federal appeals court in Philadelphia, offered a glimpse of legal arguments the government could make in asking the full D.C. Circuit to overturn the three-judge panel decision in Noel Canning v. NLRB.

"The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc," Beth Brinkmann, a top DOJ Civil Division appellate lawyer, said in the brief in the U.S. Court of Appeals for the Third Circuit. The ruling's constitutional conclusions, Brinkmann continued, "threaten a serious disruption of the separation of powers."

The Morning Wrap

Filed: The U.S. Justice Department has asked the Supreme Court to strike down California's ban on gay marriage, saying the Constitution projects the right for gays and lesbians to marry. The Los Angeles Times has this report. More coverage here and here.

Arrived: Congress and the White House haven't yet reached a deal to avoid across-the-board automatic cuts. From The Washington Post: "One day before automatic spending cuts were due to hit the Pentagon and other federal agencies, Congress on Thursday abandoned efforts to avert the reductions and left town for the weekend. The sequester is here, and policymakers have no plans to end it."

Merged: From Corporate Counsel today, this story: Most Big M&A Deals Faced Legal Challenges in 2012. "It was a rare merger or acquisition deal in 2012 that escaped legal challenges from shareholders, according to a study released Thursday by Cornerstone Research, which specializes in analyzing financial issues in commercial litigation and regulatory proceedings," the report said.

Dear Congress: Patricia Wald, a former chief judge of the U.S. Court of Appeals for the D.C. Circuit, is urging Congress to fill vacant slots on the Washington-based appeals court. Wald has this op-ed in The Washington Post.

States, Private Plaintiffs Press Suit Against Wall Street Reform Law

Updated 10:09 a.m.

The plaintiffs that are challenging the constitutionality of the Wall Street reform law and the leadership of the Obama administration's new consumer protection agency are fighting to keep alive a suit in Washington federal district court.

The private plaintiffs, including the advocacy group Competitive Enterprise Institute and Texas-based State National Bank of Big Spring, late Wednesday responded to the U.S. Justice Department's effort to end the litigation. The eleven states that have joined the suit include Texas, South Carolina, Oklahoma, Michigan, Oklahoma and Ohio. (The states' response is here.)

The attorneys for the private plaintiffs, including O'Melveny & Myers partner Gregory Jacob and C. Boyden Gray, said in their court papers that the plaintiffs have presented sufficient evidence that the Dodd-Frank Wall Street Reform and Consumer Protection Act gave "unchecked and unprecedented powers" to federal agencies, including the newly created Consumer Financial Protection Bureau.

"[T]he government has manufactured a jurisdictional challenge by mischaracterizing, fabricating and ignoring" the plaintiffs' evidence, the lawyers for the private plaintiffs said in their response to DOJ's insistence the suit should be thrown out. The states that joined the lawsuit are only challenging the government's ability to liquidate the largest banks. The states are not challenging the composition of the consumer protection bureau.

D.C. Circuit Appears Skeptical of FCC in Tennis Channel Case

A federal appeals court in Washington today appeared poised to strike down a Federal Communications Commission decision that found the country's largest cable television provider discriminated against the Tennis Channel by restricting its distribution to a sports package.

A lawyer for the commission, Peter Karanjia, faced tough questions from a panel of the U.S. Court of Appeals for the D.C. Circuit, where Comcast Cable Communications LLC is fighting the FCC order. The agency ruling was the first-ever in two decades under a provision of federal communications law that Congress enacted to promote competition and diversity in cable television programming.

Judges on the D.C. Circuit panel expressed concern about whether the Tennis Channel's complaint is time-barred and whether the agency order could expand the power of the government to regulate the speech of other entities. One judge, Brett Kavanaugh, said the FCC "has a serious problem with the First Amendment here."

The appeals court didn't immediately rule in the closely watched case. Bloomberg L.P. filed papers in support of the FCC. On the other side, the National Cable & Telecommunications Association wants the FCC order vacated. A team from Gibson, Dunn & Crutcher represents Comcast.

Wisconsin Health Official, Fresh off of Affair Allegation, Lands at McKenna Long

Amid an allegation of an affair, Wisconsin's top health official is stepping down to join the health policy practice of McKenna Long & Aldridge in Washington.

Dennis Smith, who has served as the secretary of the Wisconsin Department of Health Services since January 2011, will start at McKenna on March 1 as a managing director, the firm announced on Friday. On Tuesday, a man who allegedly tried to kill his wife, then the top lawyer at the agency, filed an affidavit in his case claiming that she professed her love for Smith in an email exchange with the secretary, the Wisconsin State Journal reported. Smith previously dismissed Andrew Spear's affair allegation when it first surfaced in August, saying he and Spear's wife, Mary, are only friends.

Smith is traveling and unavailable for comment, according to McKenna spokeswoman Courtney Smith. But he told the State Journal that his resignation isn't related to the Spear case.

"The timing of the announcement and what he filed in court are complete coincidences," Smith said. He added that his new job "has been in the works for some time."