The BLT: The Blog of Legal Times

The Morning Wrap

Cross Words: A cross erected on federal land in the Mojave Desert of California was the centerpiece of a major establishment clause dispute in the U.S. Supreme Court yesterday. Click here for The National Law Journal report. The cross has stood for more than 70 years as a war memorial. Click here for The New York Times write-up, and here for The Washington Post.

DOJ v IBM: The Justice Department has begun a preliminary inquiry into whether I.B.M. has, according to The New York Times, stymied competition in the mainframe computer market and blocked efforts by competitors and potential partners to license I.B.M.’s software. Justice antitrust regulators this month began seeking information about I.B.M.'s business practices. The Wall Street Journal has this piece on the Justice investigation.

You Lie!: Sex offenders who are on supervision can be ordered to submit to computerized voice stress analysis to determine whether statements are truthful. The New York Law Journal has the story here. The U.S. Court of Appeals for the 2nd Circuit has accepted the use of polygraph examinations as a way to monitor individuals who are under post-release supervision.

Fake Gear: Pennsylvania's highest court struck down the state's trademark-counterfeiting law earlier this week, but that hasn't stopped Major League Baseball officials from searching out and trying to shut down vendors who are pushing counterfeit Phillies gear, the Philadelphia Inquirer reports. Intellectual property lawyers and MLB officials said other civil and criminal laws enable them to fight against counterfeiting, which tends to increase when a team reaches postseason play. (The Phillies beat the Rockies last night 5-1.)

Fraud Suit: Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo is the target of a fraud suit brought by a group of family members and their real estate trusts, The National Law Journal reports. Steven Rosenthal, a former co-managing partner of the firm, is also a defendant. The suit alleges Rosethal misused his position to enrich himself and a friend. A partner at Mintz Levin said the suit is "wholly without merit and makes no sense at all."

Jones Day Partner Swinging to Top of Golf World

Jones Day partner Glen Nager has been nominated for second vice president of the United States Golf Association, continuing a climb to the top that started when he became the group's general counsel in 2006. He is expected to assume his new post in February.

Last year, he was bumped up the group’s leaderboard when he was appointed to the executive committee. He has served on nearly a dozen other committees during his tenure with the USGA, which is the national governing body of golf for the United States and Mexico. Now, as second in line for the presidency, Nager is only few strokes away from the pinnacle of golf governance.

Nager, 51, who chairs the Jones Day’s issues and appeals practice, said he first picked the game up in his 30s. “I love playing golf,” he said. “The game of golf has great traditions where you apply the rules to yourself, so it requires honor and integrity.”

A J.D. is an obvious boon in the general counsel position, being a lawyer helps in other posts too, Nager said. “There are a lot of parallels between being involved in developing the rules of golf and being a lawyer,” he said, because the procedures are similar. “I wouldn’t be shocked if I become chairman of the rules of golf committee.”

But he added that the choice is up to the incoming president, retired banking executive James Hyler. As far as potential rule changes, Nager said: “It’s publicly known that the USGA is looking at a number of different rules, such as the rules of balls lying on hazards. When you would be penalized for a ball lying in the sand and when you wouldn’t, for instance.”

The USGA position is a volunteer post and Nager will remain a full-time partner at Jones Day, but he said he’ll find a way to manage both. “The USGA will take up more and more of my time, no doubt,” he said.

Between the two gigs, when will he find the time to actually play the game he loves? “Well, that is a problem. All who serve on the executive committee, their golf games tend to suffer,” he quipped. “You think you’re going to get to play all these terrific golf courses. Well, you get to see them.”

Nager clerked for Justice O’Connor in the 1983 term and still meets up with her for a round of golf every now and then, he said. She was one of his sponsors when he applied for membership in the exclusive Chevy Chase Club. And much like her reputation on the bench, O’Connor swings right down the middle. “She hits the ball dead straight. It’s sickening,” Nager joked.

Washington Redskins Win Trademark Dispute in D.C. Circuit

The Washington Redskins football team will get to keep its name and trademark, the U.S. Court of Appeals for the D.C. Circuit ruled today in upholding a trial court decision in a case that dates back nearly two decades.

Seven Native Americans who allege the Redskins football trademark is disparaging lost their trademark case against the NFL team today in the appeals court, which found there was too great a delay between when the Redskins mark was registered and when it was first challenged. Click here for a copy of the opinion.

The appeals court, in an opinion written by Judge David Tatel, did not explore the merits of the claim. Instead, the court ruled the Redskins defense of laches—that the team suffered trial and economic prejudice because of the delay in challenging the mark—is justified.

The plaintiffs, including Mateo Romero, did not challenge the mark until 1992—well after it was registered in 1967. On remand after the D.C. Circuit first weighed in on the case, the trial judge set the clock running in 1984, when Romero turned 18.

Between 1984 and 1992, which is called the “Romero Delay Period” in court records, former Redskins president Edward Bennett Williams died—a fact the trial court found hurt the Redskins’ effort to put together a defense. Williams had reportedly met with Native American leaders to garner their views on the team’s mark. The Redskins also expanded the investment of its marks during the delay period.

“Eight years is a long time—a delay made only more unreasonable by Romero’s acknowledged exposure to the various Redskins trademarks well before reaching the age of majority,” Tatel wrote for the panel, which included Chief Judge David Sentelle and Judge Karen LeCraft Henderson.

Quinn Emanuel Urquhart Oliver & Hedges partner Robert Raskopf, who has represented the Redskins in the dispute since 1992, says the D.C. Circuit ruling “totally vindicates” the Redskins. “It’s a great win,” says Raskopf, a trial and appellate lawyer who specializes in intellectual property disputes in the sports, media and entertainment bars.

Counsel for the plaintiffs, Philip Mause, a partner at Drinker Biddle & Reath in D.C., says his clients look forward to resolution on the merits of the claim against the Redskins. “I was hoping we would get to the point where we could get to a decision on the merits,” Mause says. “But we are still in the laches swamp. At some point this will have to be resolved on the merits. I think that’s inescapable.”

Mause says there is a pending claim against the Redskins at the Trademark Trial and Appeal Board, where a group of younger Native Americans filed a recent challenge against the football team’s trademark.

Negligence Verdict Upheld Against NBA's Iverson

There was no reverse slam dunk for basketball star Allen Iverson today.

Iverson, a guard for the Detroit Pistons, unsuccessfully contested a negligence case in the U.S. Court of Appeals for the D.C. Circuit.

Iverson is liable for an attack committed by a bodyguard at a night club in the District, a three-judge panel ruled unanimously in upholding a verdict against Iverson for negligent supervision.

The plaintiff, Marlin Godfrey, who sued Iverson and his bodyguard Jason Kane, was a VIP patron at the Eyebar the night of July 20, 2005, when a fight broke out. Godfrey suffered a concussion, ruptured eardrum, and a torn rotator cuff, among other injuries, according to court records.

A jury in July 2007 found Iverson and his bodyguard guilty and awarded $260,000 to Godfrey after the trial in the U.S. District Court for the District of Columbia. Most of the money was for pain and suffering. Kane, accused of kicking and punching Godfrey, was found guilty of assault and battery.

The appeals court said Iverson failed to adequately supervise an employee that Iverson knew or should have known had behaved dangerously.

“The evidence in this case supported the jury’s finding that Kane attacked Godfrey in a fight that lasted several minutes, and that Iverson stood and watched without attempting to do anything to stop the beating,” Senior Circuit Judge A. Raymond Randolph wrote for the panel, which included Judges Karen LeCraft Henderson and Merrick Garland.

Gregory Lattimer, who argued the case for Godfrey, says he is elated by the ruling. “I think it sends a clear message that when you are present you can’t sit there and say nothing and do nothing,” Lattimer says. “It sends a message to Mr. Iverson, who really needed to be sent a message.”

Iverson’s lawyer, William “Billy” Martin, a partner at Sutherland Asbill & Brennan, could not immediately be reached for comment. Martin argued last fall in the D.C. Circuit that there was insufficient evidence to hold Iverson accountable for negligent supervision.

SEC Goes After NBA Owner

The owner of the NBA’s Dallas Mavericks, Mark Cuban, now has another court to be worried about. 

The Securities and Exchange Commission charged Cuban, 50, with insider trading today. The SEC filed a complaint in the U.S. District Court for the Northern District of Texas, alleging that in June of 2004 Cuban called his broker and told him to sell all 600,000 of his shares of stock in Mamma.com, an Internet search engine company, after he allegedly knew the stock price would become diluted before the company announced it was issuing more shares. The agency estimates Cuban avoided more than $750,000 in losses. 

Cuban is being represented by Dewey & LeBoeuf’s Ralph Ferrara, who is based in Washington, D.C. Cuban, who maintains a blog, posted a statement earlier today from his lawyer that says, “This matter, which has been pending before the Commission for nearly two years, has no merit and is a product of gross abuse of prosecutorial discretion. Mr. Cuban intends to contest the allegations and to demonstrate that the Commission’s claims are infected by the misconduct of the staff of its Enforcement Division.” 

Cuban writes, “I wish I could say more, but I will have to leave it to this, and let the judicial process do its job.” 

The deputy director of the SEC’s Division of Enforcement, Scott Friestad, told Legal Times that the division had been investigating Cuban since early 2007. Friestad declined to say specifically what had triggered the investigation, but says they learned about Cuban’s “trading issues through normal investigative work.” Friestad says the agency will pursue these charges aggressively and Cuban’s celebrity status will have no impact “whatsoever.” 

Cuban, who purchased a majority stake in the Mavericks in 2000 after making billions through the sale of Broadcast.com to Yahoo, is anything but the typical sports-franchise owner. Rather than sitting in an owner’s box suite in a suit, Cuban is often seen donning Mavericks apparel and jeans among the fans at games. He has also been the subject of several league-wide controversies involving public criticism of the league and its officials and openly criticizing opposing players.