The BLT: The Blog of Legal Times

The Morning Wrap

Closing Time: Dewey & LeBoeuf's intellectual property group in Northern California will split and form an 11-attorney boutique, The Recorder reports. The firm's California offices are set to close next week. Meanwhile, the embattled firm was hit with a suit under the Worker Adjustment and Restraining Act, which seeks class certification on behalf of 450 employees terminated this month, The AmLaw Daily reports.

Think Small: Lawyers for Volkswagen Group of America are challenging the award of $30 million in attorney fees given to plaintiffs lawyers in a multidistrict case, The National Law Journal reports. The U.S. Court of Appeals for the First Circuit did not immediately rule yesterday.

Just Beat It: Former federal aviation chief J. Randolph Babbitt beat a drunken driving charge in Virginia after a judge found that a police officer stopped the ex-FAA official's vehicle without good reason, The Washington Post reports. The case led to Babbitt's resignation from the Federal Aviation Administration. Peter Greenspun represented Babbitt.

The Roots: The double-agent in Yemen who disrupted an al Qaeda bomb plot held a European Union passport and was raised in the West, The Wall Street Journal reports. The man's Western upbringing facilitated his travel.

Hill Counsel Uses Perch to Try to Change 'Hearts and Minds' on Abortion

This is part of a series of BLT profiles of Capitol Hill counselors and the work they do.

At a crucial moment in the debate over the Affordable Care Act, when Capitol Hill was as pressure-packed and partisan as it has been in recent history, legislative counsel Nicole Gustafson got the chance to press for the issue she says is written on her heart.

Gustafson, the unplanned daughter of an unwed teenage mother in Iowa, says she and her boss, Rep. Eric Cantor (R-Va.), spent a day in 2009 urging different House members to vote for an amendment to the bill that would prevent government funds from going toward elective abortions.

Some Republicans thought defeating the amendment would make it harder for the overall bill to pass. But Gustafson helped persuade them that defeating the amendment would mean losing the support of Democrats who shared right-to-life concerns – and that would ultimately hasten the passage of President Barack Obama’s sweeping healthcare reform.

“What we did really made a difference that day,” Gustafson said. The House passed what was called the Stupak-Pitts amendment. The ACA stalled for months, turning the elective abortion funding issue into the center of the debate and helping garner support for another abortion funding bill the House passed last year.

The Morning Wrap

Losing Jobs: The legal sector dropped 1,300 jobs in March after it added positions for two straight months, The Am Law Daily reports.

Legend Lost: Longtime "60 Minutes" reporter Mike Wallace died on Saturday, CBS News reports. He was 93.

Still In It: Republican presidential candidate Newt Gingrich said on “Fox News Sunday” that Mitt Romney "is far and away the most likely" GOP nominee for president. But Gingrich isn’t ending his campaign yet.

Questioning Jurors: Jurors in a patent trial in the U.S. District Court for the Eastern District of Texas recently made history, becoming the first jurors to ask questions of witnesses in that court, which is known for cases involving complicated patent litigation, Texas Lawyer reports. "I think it really helps if the truth-seeking role of the jury is more engaged,” Chief U.S. District Judge Leonard Davis said.

Obama’s Easter: President Barack Obama went to an Easter service on Sunday at St. John's Episcopal Church, which is a short walk from the White House, ABC News reports. His wife, Michelle, and daughters, Sasha and Malia, joined him.

Talks Fail Between Chabad and Russian Government Over Return of Religious Texts

Negotiations between the Russian Federation and the Chabad-Lubavitch movement over the return of Jewish texts in the custody of Russian state agencies have failed to date, according to a new filing in U.S. District Court for the District of Columbia.

In a statement (PDF) filed with the court yesterday afternoon, Chabad asked U.S. District Chief Judge Royce Lamberth to begin issuing monetary sanctions against the Russian government until the texts are returned.

Chabad sued the Russian Federation in 2004, seeking the return of about 12,000 books and manuscripts seized during unrest in Russia in the early 20th century and 25,000 pages of handwritten texts stolen by Nazis during World War II and taken by Russian soldiers after the war.

The case was transferred from U.S. District Court for the Central District of California to Washington in June 2005. Lamberth ordered the Russian government to return the texts in August 2010, but Chabad asked for a delay in enforcing the judgment to attempt negotiations.

In yesterday’s statement, Chabad informed Lamberth that it made “good faith efforts to negotiate” during meetings at the Russian embassy in Washington. Chabad wrote that the Russian government had refused to comply with the court order or turn over part of the collection in the interim as a sign of good will.

Chabad asked Lamberth to begin issuing daily or weekly monetary sanctions against the Russian government as long as it refuses to return the texts. Chabad wrote that it will begin efforts to enforce the judgment, but reaffirmed an earlier pledge not to seize Russian art or cultural objects in the United States. Last year, Russian officials expressed fear of such an attachment, ordering a ban on art loans and the return of art already on loan.

Sudanese Bishop Granted Asylum in U.S., with Covington's Help

Lawyers with Covington & Burling in Washington helped to secure asylum for a Sudanese Episcopalian Bishop after he became a target for his support of South Sudan, the firm said Friday.

Bishop Andudu Adam Elnail is a native of the Sudanese province of South Kordofan, which borders South Sudan to the north.

Elnail came to the U.S. seeking medical treatment in May 2011. In June 2011, a conflict broke out between the Army of Sudan and the Sudan People’s Liberation Army/Movement in South Kordofan. About the same time, Covington began representing Elnail’s quest for asylum pro bono. Associate Arjun Singh Sethi was the lead attorney representing Elnail, supported by partner Gerald Masoudi.

“It was an extremely urgent situation and within the span of a few days, his home was destroyed and looted, his office was destroyed and looted and his church was destroyed and looted,” Sethi said. “We also had evidence that the Sudanese government had a list of individuals who were targeted for execution.”

Sethi argued that if Elnail returned to his home, he would be persecuted for his political beliefs in support of South Sudanese independence. Covington prepared Elnail’s asylum application, his personal affidavit and an expert affidavit. Now that his asylum has been granted, Elnail, living in Denver, is trying to bring his family to the U.S. as derivative asylees.

“Asylum is the way for me to advocate for the people of South Kordofan,” Elnail said in a written statement. “I can do more for my people here than if I was in Sudan.”

Sethi said that many asylum seekers face the harsh reality that they may never again step foot in their homeland.

“As much as he is a wonderful advocate here, there is a part of him which is in Sudan,” Sethi said, referring to Elnail. “That is where he was born and that is where his heart remains.”

D.C. Settles Lawsuit Over Election Held During Passover

Updated at 10:52 a.m.

City officials agreed Friday to settle a lawsuit filed by a local Orthodox rabbi over the scheduling of a special election during a Jewish holiday.

According to the settlement agreement (PDF), Washington Mayor Vincent Gray (D) will introduce and support legislation to the D.C. Council within three months that would give the D.C. Board of Elections and Ethics more flexibility in scheduling elections.

Instead of requiring that special elections take place the first Tuesday more than 114 days after a council seat becomes vacant, the new legislation (PDF) would give the board a window of between 100 and 130 days.

“The proposed legislation, when enacted by the city council, will specifically give the board of elections the authority and direct them to schedule elections so they do not occur on religious holidays,” said Steven Lieberman of Washington’s Rothwell, Figg, Ernst & Manbech, who represented Herzfeld."This is a win for everybody," he added.

In a written statement, Ted Gest, a spokesman for the Office of the Attorney General, said that, "we are pleased that this case was settled on a sensible basis, without any financial cost to the city and with limited court involvement." Representatives of the mayor’s office and the Board of Elections and Ethics did not immediately return a request for comment.

Herzfeld, who leads Ohev Shalom-The National Synagogue in Northwest Washington, failed to secure an emergency injunction in April that would have forced the city to reschedule or extend hours during a special election on April 26. That day was the eighth and final day of Passover; observant Jews are prohibited from signing their name or completing an electronic circuit, in effect barring them from casting a ballot.

Herzfeld pursued his lawsuit in U.S. District Court for the District of Columbia after the election; the court denied the injunction because early voting was already underway and the city was offering alternative absentee voting options.

The rabbi and his co-plaintiffs claimed that by requiring observant Jews to take more steps to vote than other residents, the board violated their First and Fifth Amendment rights. The board had argued that its hands were tied by the 114-day rule set out in D.C. Home Rule Act.

Rabbi, D.C. Officials in Settlement Talks Over Election Scheduled During Passover

A new filing today in U.S. District Court for the District of Columbia shows that attorneys for a local rabbi and the District of Columbia Board of Elections and Ethics are in settlement talks over the handling of a local election scheduled during a Jewish holiday.

Rabbi Shmuel Herzfeld sued (PDF) the board over a special election that took place on April 26, which was also the eighth and final day of Passover. The eighth day is one of several when observant Jews are barred from signing their name or completing an electronic circuit, which, Herzeld said, meant they couldn’t vote.

U.S. District Judge Emmet Sullivan denied a last-minute request for an emergency injunction to reschedule the election, but gave Herzfeld a green light to pursue other claims against the city over their handling of the situation. The board said that their hands were tied by law from changing special election dates except in extreme circumstances.

On Monday, both sides filed a joint motion to stay (PDF) proceedings for another month, telling the court that they had drafted language of a written settlement and “are in the process of negotiating the terms of the agreement.”

Herzfeld’s attorney, Steven Lieberman of Washington’s Rothwell, Figg, Ernst & Manbech, declined to comment on settlement talks. A representative of the board wasn’t immediately available for comment.

The settlement, according to the motion, would make it unnecessary for the court to decide several other pending motions. The city had filed to strike language from Herzfeld’s amended complaint accusing city officials of falsely stating that even if the election had fallen on Christmas Day, they would not have been able to change the date.

The case was reassigned in September from Sullivan to U.S. District Judge James Gwin of the U.S. District Court for the Northern District of Ohio. The court occasionally reassigns cases to judges outside of the district in order to ease the docket.

Freedom Watch Founder's $1B Suit Against Facebook Dismissed

A Washington federal judge dismissed a $1 billion lawsuit today filed by Washington attorney Larry Klayman, the founder of Freedom Watch Inc., against Facebook founder Mark Zuckerberg.

Klayman filed suit (PDF) against Zuckerberg and Facebook in May, accusing the social networking site and its officers of taking too long to remove a Facebook page that called for violence against Jews. The page was eventually removed, but Klayman, who is Jewish, had alleged that by allowing the page to stay up for several days, he was personally put at risk.

In the complaint, Klayman accused Zuckerberg and Facebook officers of purposefully keeping the page up to boost revenues and get attention. He pointed to the recent portrayal of Zuckerberg in the biopic The Social Network as lacking "strong ethical and moral character.”

Facebook, represented by Craig Primis of Washington’s Kirkland & Ellis, filed a motion to dismiss (PDF) in late July calling Klayman’s lawsuit “a publicity stunt.” Facebook argued that the lawsuit was frivolous, since Klayman had suffered no injury and, “in any event, Facebook had no duty to shield him from the offensive speech of other Facebook users.”

The $1 billion damages request, Facebook added, was “outrageous.”

Finding that Klayman had failed to file an amended complaint in accordance with an Aug. 19 court order, U.S. District Judge Reggie Walton issued an order Friday morning dismissing Klayman’s lawsuit with prejudice.

Reached by phone Friday morning, Klayman said he planned to ask for reconsideration, since he wasn’t aware that he was required to file an amended complaint.

“[Walton] should have made a ruling on the original complaint that had been fully briefed,” Klayman said.

Primis did not immediately return a request for comment. His co-counsel at Kirkland & Ellis, K. Winn Allen, declined to comment.

D.C. Circuit to Consider Case of Art Taken by Nazis

The Hungarian government is appealing the denial of its bid to dismiss a lawsuit filed by heirs to a Jewish Hungarian art collector demanding the return of art taken by the Nazis and Hungarian officials during World War II.

U.S. District Judge Ellen Segal Huvelle denied the bulk of the Hungarian government's motion to dismiss on Sept. 1, finding that the descendants of Baron Mor Lipot Herzog could sue for the return of pieces of Herzog’s collection currently in the possession of Hungarian cultural institutions.

Attorneys for the Hungarian defendants filed notice (PDF) Monday that they intend to challenge Huvelle’s ruling before the U.S. Court of Appeals for the District of Columbia Circuit.

Nixon Peabody partner Thaddeus Stauber, lead counsel for the Hungarian government, said in a statement that his client anticipates “asking the U.S. appellate court to acknowledge that the relevant international agreements and compensation programs in Hungary and the U.S. long ago resolved any modern day claims to the remaining artworks.”

The Hungarian government had argued in its motion to dismiss that it already settled claims to art and other items taken during World War II over the last few decades, including the Herzog collection.

Huvelle did dismiss part of the heirs’ complaint, deferring to a previous ruling by a Hungarian court finding that 11 of the more than 40 pieces in question from the collection did belong to the Hungarian defendants, which include the Hungarian government as well as the Hungarian National Gallery, the Museum of Fine Arts, the Museum of Applied Arts and the Budapest University of Technology and Economics.

Michael Shuster of New York’s Kasowitz, Benson, Torres & Friedman, who is representing Herzog’s heirs, said Tuesday morning that “the issues that Judge Huvelle dealt with in her opinion are all well-grounded in…other precedents.”

“It’s unfortunate that they continue to want to avoid addressing the merits,” he said.

Judge Rules Hungary Can Be Sued for Return of Art Seized by Nazis

Updated at 3:14 p.m.

A Washington federal judge ruled late Thursday that the descendants of Baron Mor Lipot Herzog, a wealthy Jewish Hungarian art collector, can sue the Hungarian government for the return of art seized by Hungarian officials and the Nazis during World War II.

In denying (PDF) the bulk of Hungary's motion to dismiss, U.S. District Judge Ellen Segal Huvelle found that Herzog's heirs offered "substantial and non-frivolous" claims that Hungarian officials at the time violated international law in taking the paintings, meaning the Hungarian government is not immune against litigation under the Foreign Sovereign Immunities Act.

Governments are given wide berth to take property from its citizens, Huvelle wrote, but in this case, the Hungarian government was accused to taking property from Jewish individuals whose citizenship rights had already been stripped away under anti-Semitic laws in effect at the time.

Hungary’s other arguments for dismissing the lawsuit included invoking the act of state doctrine, which prevents U.S. courts from passing judgment on the public acts of foreign governments. Huvelle wrote that when it comes to the actions of Nazi Germany and its allies during World War II, the courts have consistently ruled that this statute doesn’t apply.

Huvelle did grant Hungary a partial dismissal on claims to 11 of the more than 40 pieces of art in question, on the grounds that a Hungarian court had already issued a ruling that the government was entitled to keep those paintings.

Michael Shuster of New York’s Kasowitz, Benson, Torres & Friedman, who is representing Herzog’s heirs, said in a statement that he was pleased with the ruling.

"The Court’s decision rightfully rejects Hungary’s attempts to avoid dealing with the merits of this case, which overwhelmingly favor the Plaintiffs," Shuster said. "We look forward to proceeding with discovery of the Hungarian government’s shameful conduct in taking and refusing to return the family’s artworks.”

Thaddeus Stauber of Nixon Peabody, an attorney for the Republic of Hungary, said in an e-mail that he was pleased the court recognized Hungary’s claim to 11 of the paintings, based on the previous ruling from the Hungarian court.

"As the district court recognized the fairness and legitimacy of the Hungarian courts, we expect as the case proceeds that the Republic of Hungary's rightful ownership of the remaining artworks will likewise be confirmed,” he said.” We also anticipate asking the appellate court to acknowledge that the various international agreements and compensation programs long ago resolved any claims."

According to the complaint (PDF), Herzog's heirs had unsuccessfully tried to hide the art collection after Hungary allied with Nazi Germany. The collection was discovered and handed over to the Hungarian government. The complaint notes that before the art was turned over, high-ranking Nazi official Adolph Eichmann first selected several pieces as personal "trophies."

The plaintiffs in the case are three of Herzog's great-grandchildren, who are suing on behalf of all of his heirs.