The BLT: The Blog of Legal Times

A Dozen Years Later, Navajo Nation and Utilities Settle Suit

After more than 12 years of litigation, Washington-based BuckleySandler partner Sam Buffone earlier this month successfully negotiated a multi-million-dollar settlement between the Navajo Nation and Peabody Energy, Salt River Project and Southern California Edison.

The settlement resulted in the dismissal of a pending lawsuit against the utilities.

In 1999, the Navajo Nation filed a lawsuit over the royalty rates of coal leases granted to Peabody by the U.S. Department of Interior more than 40 years ago.

As part of the settlement, the Navajo will receive an immediate payment of $50 million and Peabody has committed to provide $15 million toward infrastructure over the next 10 years. The Navajo will also receive $3.5 million annual bonus payments in addition to the existing 12.5 percent royalty rate. Retroactive increases to scholarships for Navajo students will be paid along with a one-time bonus of $1.55 million.

Buffone said he was pleased that both parties could resolve their differences.

“It brings an end to what was a complex piece of litigation that required a lot of resources and attention,” Buffone said.

“At the time, the Navajo had no authority to lease their mineral resources,” Buffone said. “Overall royalties increased dramatically over the last 20 years while the Navajo were getting paid next to nothing.”

The royalty rates were re-evaluated at the request of the Navajo by former Secretary of the Interior William Clark, who tentatively approved a 20 percent rate. Buffone said that Peabody sent a crony of the newly-elected Secretary of the Interior, Donald Hodel, to renegotiate the royalty rate in a “private, backroom deal.”

“This entire lawsuit has been about those actions,” Buffone said. “This settlement is a culmination in what has been a lot of activity in a number of courts.”

Guards Investigated for Accepting Baseballs Signed by Clemens

Updated at 2:54 p.m.

Security guards in the Washington federal courthouse are under investigation for accepting free baseballs signed by former baseball star Roger Clemens after a mistrial was declared last month in Clemens' perjury trial.

First reported this morning by the Washington Post, the U.S. Marshals Service has confirmed that between five and six security officers are under investigation after allegations surfaced that they accepted the gifts from Clemens' defense team in violation of their contract.

Inter-Con Security Systems Inc., a Pasadena, Calif.-based company that employs the guards and contracts with the court to provide security, is handling the investigation, according to U.S. Marshals Service spokeswoman Lynzey Donahue. A representative for Inter-Con could not immediately be reached.

A preliminary finding from Inter-Con indicated that one guard received up to six baseballs signed by Clemens the same day U.S. District Judge Reggie Walton declared a mistrial in the case on July 14, according to Donahue. The guard then distributed the baseballs to between four and five other officers also working in the courthouse.

The investigation began on Aug. 9, after the U.S. Marshals Service became aware of the exchange and asked Inter-Con to investigate. Donahue declined to say who first brought the allegations to their attention.

Lance Mueller, chief operating officer for Inter-Con, confirmed that an investigation is ongoing but declined to discuss any details. He did say that the company “has very high ethical standards with our officers against accepting gratuities or gifts in any manner.”

Clemens' lead counsel, Rusty Hardin, could not immediately be reached for comment.

Walton declared a mistrial after federal prosecutors presented evidence that had already been ruled inadmissible at trial. Clemens' attorneys have argued against a retrial, and prosecutors are expected to file an opposition brief this month.

Morning Wrap

On the Rise: Malpractice claims against lawyers are increasing in the sour economy, with real estate practices the main target, according to a story in The AmLaw Daily.

Full Circle: One of the early outsourcers of legal services to India is bringing the work back to the U.S., our Sheri Qualters reports. The new locale for the operation: Rapid City, South Dakota.

Not Guilty: Either you followed the murder trial of Casey Anthony or you didn't, but either way, here's an analysis from The New York Daily News suggesting that she would have been found guilty if the verdict had been rendered by CSI, not 12 jurors.

Deficit Talks: President Barack Obama is calling congressional leaders to the White House Thursday in hopes of moving the ball forward on the deficit and the debt ceiling. 

Law Firm Bands Gear Up for Battle

By day, they practice law, but by night, at least this week, they are practicing music. We're talking about members of the dozen music groups competing in the seventh annual Battle of the Law Firm Bands, a fundraiser for D.C. homeless, on Thursday night.

The concert is set for 7 p.m. to midnight July 7 at The Black Cat at 1811 14th Street, NW, and is presented by Gifts for the Homeless, a lawyer-led charitable organization now marking its 25th anniversary. Money is raised by "Chicago-style" voting -- one vote for each dollar donated -- and the winner, declared at the end of the evening, is the one that raises the most money. All of the money goes toward buying clothing and other winter items that are distributed to 35 shelters in the D.C. area. Last year, the event raised $120,000. Fifty law firms, associations and individuals (including The National Law Journal and Legal Times) are helping sponsor the benefit.

One of the bands is making its debut this year: Jazz Ipsa Loquitor, which speaks for itself and is populated by lawyers from Foley & Lardner. With seven instrumentalists and five singers, the band is planning on a mix of Motown and jazz pieces. "We're very excited," said Foley partner Richard Peet. "We're the first jazz group to play in the event."

Most of the others are relying on rock and blues numbers, including Larry and the LandLawyers, organized by, you guessed it, a real estate law firm named Walsh Colucci Lubeley Emrich & Walsh in Arlington, Va. "It's a good release, something for us to do, for a great cause,' said H. Mark Goetzman (above, center,) a shareholder of the firm.

The latest information about the event can be found at the Gifts for the Homeless web site and on its Facebook page.

Photo by Christine Kieffer

Merry Christmas and Happy Holidays

The National Law Journal will not publish to The BLT for the next several days in observance of Christmas. We wish you plenty of holiday cheer.

Sidley Austin is Lobbying for China's Largest Search Engine

Lawyers from Sidley Austin have registered to lobby on behalf of Baidu Inc., marking the Chinese search engine's entry into Washington's influence market.

Baidu is hoping to have a say in the development of what’s known as the Special 301 Report, according to a lobbying registration filed with the U.S. Senate. The report is an annual look at what the U.S. government considers to be unfair trade practices, and it’s written by staff in the Office of the U.S. Trade Representative.

The 2010 Special 301 Report took aim at Baidu directly under a section titled “notorious markets.”

“The U.S. music industry reports that the vast majority of all illegal downloads of music in China are associated with Baidu,” the report (PDF) said. “Baidu is the target of ongoing infringement actions by both domestic and foreign rights holders. Baidu executives continue to deny responsibility for content hosted by other websites. Several rights holders are pursuing legal action in Chinese courts.”

The company is widely described as the dominant search engine in China, accounting for three-quarters or more of the market there. As of July, it was the fourth-largest search provider globally, after Google, Yahoo and Microsoft, according to Reuters.

Listed on the lobbying registration are James Mendenhall, a counsel in Sidley Austin’s Washington office who’s a former general counsel to the USTR, and lawyers in the firm’s Palo Alto, Calif., and Beijing offices. Mendenhall did not immediately return a call requesting comment. The registration was effective Nov. 18 and was posted online this week.

Baidu has not previously registered with a lobbyist or registered to lobby on its own, according to a search of Senate records.

UPDATE: Click here for a profile of Baidu general counsel Victor Liang from Corporate Counsel, a National Law Journal affiliate.

Morning Wrap

Prosecutors Misbehaving: A major USA TODAY investigation published yesterday examined hundreds of cases of prosecutors hiding exculpatory evidence or lying to judges and jurors. 

Enforcing Deadlines: A New Jersey judge, fed up with a law firm's disregard for filing deadlines, is imposing a $500-a-day fine for late briefs and says court personnel will no longer call the firm with polite reminders. The New Jersey Law Journal tells the story.

Virginia Executes Lewis: Teresa Lewis sang, prayed, and laughed on her final day before being executed in Virginia Thursday night, according to her lawyer James Rocap. The Washington Post had this report.  

'Outlaw' Should be Outlawed: Dahlia Lithwick, writing in Slate, weighs in on NBC's faux Supreme Court drama "Outlaw." She says "it is so terrible it makes your face hurt." Our similar take on the show is here.  

Eddie Fisher Dead at 82: Eddie Fisher, a music icon in the 1950s, and a serial husband of movie stars, including Elizabeth Taylor, died in Berkeley Wednesday night.

Supreme Court May Tune In To Music Download Case

The Supreme Court has asked a record company to file a brief in a case that asks the justices to weigh in on a wave of copyright lawsuits filed by the recording industry against college students and others for unpaid music downloads.

The case is Harper v. Maverick Recording, the first to reach the high court from the 40,000 legal actions the industry took in recent years to combat illegal downloads. The petition, which we wrote about here in our new newsletter Supreme Court Insider, asserts that the downloaders should be viewed as "innocent infringers" subject to smaller fines than record companies sought. Whitney Harper was a high school cheerleader when she was sued for downloading songs through KaZaA.

After Kiwi Camara of Camara & Sibley in Houston filed the petition in May, Maverick in August waived its right to respond, which often occurs in Court practice. But on Sept. 15, according to the Court's online docket, the Court  requested a response from Maverick.

The Court's unusual action is a sign of the Court's interest in the case. A recent study indicated that the Court's request for a response significantly increases the chances the Court will ultimately grant review -- which could turn into a major contest for the music industry. Maverick's lawyer in the case Eve Burton, senior counsel at Holme Roberts & Owen in Denver, declined comment.

High Notes at the High Court

The chandeliers were on the verge of rattling in the Supreme Court's East Conference Room on Thursday as the powerful voices of tenor Lawrence Brownlee and mezzo-soprano Denyce Graves rang out during the Court's annual musicale.

The late justice Harry Blackmun started the tradition of a springtime musical interlude at the Court in 1988 -- it was every other year the first few times -- and then Justice Sandra Day O'Connor and now Justice Ruth Bader Ginsburg have become the impresaria for the unique event. Musical stars including Bobby Short, Michael Feinstein, Marian McPartland, and Leonard Slatkin, as well as some of the best operatic names, have played the coveted gig. Thursday marked Graves' second appearance at the Court, and Brownlee's debut. Betty Bullock was at the piano.

Ginsburg, a longtime opera buff who, by legend, sometimes reads briefs by flashlight while at the theater, was in her glory emceeing the event. She introduced Graves as "my cherished friend," and praised Brownlee's performances. Four other current justices, by our count, joined Ginsburg in attending: Chief Justice John Roberts Jr., Stephen Breyer, Antonin Scalia, and Samuel Alito Jr. Retired Justice Sandra Day O'Connor was also on hand. Dozens of other guests of the Court filled the wood-paneled conference room.

Roberts closed out the event by thanking Ginsburg and praising the singers for holding the attention even of the "non-cognoscenti" in the room. Roberts then noted the imminent anniversary -- it's today, actually -- of the Court's first decision relating to opera: Benson v. McMahon, decided May 14, 1888. It involved a fraud committed against Adelina Patti, labeled in the opinion as "the wonderful songstress," and described elsewhere as the preeminent opera diva of her time.

A con man had printed up fake tickets to a forthcoming Patti concert in Mexico City, defrauding customers out of $30,000. The issue was whether the common law definition of forgery included printed fakery, or was limited to handwritten items. The Court ruled in favor of the broader definition.

Thursday's event was sponsored by a group called Friends of Music at the Supreme Court, chaired by Douglas Wheeler, with assistance from the Supreme Court Historical Society and the Washington Performing Arts Society.

Morning Wrap

Wall Street Jitters: Positive economic news due out today may help the markets recover from Thursday's wild plunge and rebound, but it will still be a tense day, CNNMoney reports. The New York Times recounts how Thursday went for Treasury Secretary Timothy Geithner, traders, and the media.

Cobell Settlement in Jeopardy: The settlement agreed to last December to end the massive Indian trust litigation may be toast because of a dispute over legal fees. This American Lawyer article via law.com pulls together the latest on the dispute, including earlier BLT posts.

Nomination News: Nothing concrete yet about when President Obama will name his pick for the Supreme Court. But the tight lid on news is no accident, according to this New York Times profile of White House counsel Bob Bauer. Even before he took the job, Bauer was developing a new strategy for the process, including strict secrecy and more aggressive response to attacks on potential nominees -- all to keep the president's options open.

Family Services Calamity: D.C. budget cuts triggered layoffs Thursday of more than 100 workers at the city's Child and Family Services Agency, The Washington Post reports. Hardest hit were social service assistants who aid already overwhelmed social workers. All 57 were laid off. "This is like a hospital, and they just cut all the nurses," said one.

NPR Does Lady Gaga: Okay, it's Friday, so here's something casual. For unknown reasons, National Public Radio personalities decided to spoof a Lady Gaga song, with fairly hilarious results on YouTube. Lawyerly readers will especially want to look out for Nina Totenberg, NPR's Supreme Court correspondent, and Ari Shapiro, formerly the DoJ reporter and now at the White House. (Hat tip to Kathleen Cullinan.)