The BLT: The Blog of Legal Times

In Clemens Retrial, Prosecutors Seek Secrecy Over Witness Issue

At the U.S. Justice Department's request, a federal judge in Washington today kept sealed a court document that addresses issues involving a key witness for the government in the perjury case against Roger Clemens.

Judge Reggie Walton of U.S. District Court for the District of Columbia said this afternoon at a hearing he was concerned about how disclosure of the information could affect his ability to pick an impartial jury.

Jury selection is scheduled to begin Monday in the prosecution of Clemens, who was charged in August 2010 with lying to Congress when he denied using performance enhancing drugs during his baseball career.

Clemens’ attorneys and prosecutors spent the bulk of the hearing going over the scope of what evidence should be allowed and the items that should be prohibited. For instance, Hardin will not be allowed to tell jurors that Clemens faces prison time if he is convicted.

The Morning Wrap

Some Assembly Required: North Korea's launch of a multistage rocket Friday proved a global embarrassment after it exploded less than two minutes into flight, The Wall Street Journal reports. The New York Times has coverage here. The failed effort to put a satellite in space is raising international concern, The Washington Post reports.

Extra Innings: Jury selection is scheduled to begin Monday in the retrial of former pitching great Roger Clemens, charged with lying to Congress about steroid use. The New York Times' Juliet Macur previews challenges for the government, whose legal team botched the first trial. U.S. District Judge Reggie Walton is presiding over a motion hearing this afternoon in Washington.

Sentenced: A man convicted in Boston federal district court of conspiring to support Al Qaeda will serve more than 17 years behind bars, Sheri Qualters of The National Law Journal reports. The man, Tarek Mehanna, a U.S. citizen, was accused in a conspiracy to provide personnel and advice to Al Qaeda.

Taking a Break: Scott Graham of The Recorder digests the high profile wage-and-hour ruling by the California Supreme Court. The court ruled employers must permit meal breaks for employees but not ensure that those breaks are actually taken.

Protest: On the heels of the shooting death of Trayon Martin, advocacy groups are criticizing major corporations that provided financial support to the conservative organizations that encouraged "Stand Your Ground" legislation, according to a report by Tom Hambuger in The Washington Post. Peter Overby of NPR has coverage here on the backlash against major companies.

Leaked: Former CIA officer John Kiriakou, charged with disclosing classified information to the press, is expected to plead not guilty today in Alexandria federal district court. Carrie Johnson of NPR reports on the challenges facing the government.

Clemens Quarrels With DOJ Over Access To Law Firm's Notes

As the trial of Roger Clemens approaches, federal prosecutors in Washington and lawyers for the former pitching star are quarreling over documents the law firm DLA Piper created amid its review of drug use among baseball players.

Prosecutors with the U.S. Attorney's Office in Washington said recently they want to review notes that DLA Piper attorneys took during interviews with witnesses who are now central to the prosecution against Clemens.

Clemens is charged in U.S. District Court for the District of Columbia with lying to Congress when he denied ever using performance-enhancing drugs. The first trial ended abruptly when the presiding judge, Reggie Walton, declared that prosecutors presented prohibited evidence.

Before the first trial, Clemens’ defense team, led by Russell Hardin Jr. of Houston, fought hard in court to get their hands on information from DLA Piper, which published its investigative report in December 2007 on baseball and steroids.

Prosecutors took no position as Clemens’ attorneys tried to squeeze documents from the firm. But the government now wants to see the information that Walton ordered DLA Piper to turn over to the Clemens defense.

In court papers filed last night, Clemens’ attorneys accuse the government of “a back-door effort to obtain copies of materials it originally sought to keep hidden before the first trial.”

Hardin said Clemens “fought tooth and nail” to obtain documents from DLA Piper about government witnesses Brian McNamee and Kirk Radomski. Prosecutors, Clemens’ attorneys said, “did not lift a finger” to assist in getting the documents from DLA Piper.

The Morning Wrap

Fees, Please: It costs a lot to go bankrupt if you are the biggest company to ever do so. Lehman Brothers' three-year-old Chapter 11 has been lucrative for lawyers and consultants, with $1.6 billion in fees generated so far in the case, CNNMoney reports. Lehman Brothers' primary law firm, Weil, Gotshal & Manges, is set to collect $383 million for its work.

Today is Super: It's the busiest day of the primary season -- Super Tuesday -- with 10 states holding contests to find a Republican challenger to President Barack Obama. Mitt Romney can seize command of the Republican presidential race today with big wins in states like Ohio, but his challengers hope to take a few states away from him, Reuters writes. Meanwhile, Obama plans to steal a little of the political spotlight with his first formal news conference since last year, CNN reports.

Salty Dispute: An avid moviegoer in Michigan has filed a class-action lawsuit against AMC Theaters in that state over the price of popcorn and other concessions, the L.A. Times reports. The suit will test the boundaries of Michigan's price-gouging law, and could spark similar lawsuits across the nation if successful, the lawyers say.

Supreme Court Insider: The Supreme Court newsletter launched a series Monday that examines each of the four issues the Supreme Court will consider later this month while weighing the constitutionality of the Affordable Care Act. In Monday's newsletter, we have an analysis of the threshold question of jurisdiction, as well as a profile of Covington & Burling's Robert Long, who will argue the issue March 26. The newsletter also has pro and con columns on jurisdiction by Alan Morrison of George Washington University Law School and the Cato Institute's Ilya Shapiro. Click here for a look at the newsletter and more information on subscribing.

Big Hits: NFL players and coaches could theoretically be prosecuted in the U.S. for battery as part of the New Orleans Saints "bounty" scheme, where defensive players were paid money to intentionally injure opposing players. But that's not likely for two main reasons, a Tulane University School of Law associate professor writes in a legal analysis of the scheme for NFL.com.

Dickstein Shapiro Signs on to Lobby for Amateur Athletic Union

Updated 3/2 at 3:15 p.m.

Dickstein Shapiro on Monday revealed that one of its lobbyists, a former senator, is advocating for the Amateur Athletic Union.

Former Sen. Tim Hutchinson (R-Ark.), a senior adviser at the firm, is advocating for the nonprofit, volunteer sports organization based in Lake Buena Vista, Fla. He is following "legislative and federal action related to youth sports," according a lobbying registration filing.

Hutchinson couldn’t immediately be reached for comment. But AAU spokesman Ron Sachs said the organization hired Dickstein to help it with federal grants, among other matters in Washington.

The AAU hasn’t had a federal lobbyist before, according to congressional lobbying records that date back to 1999.

Founded in 1888, the organization promotes and develops amateur sports and physical fitness programs across the United States for individuals of all ages. The AAU sanctions 34 sports programs.

The Morning Wrap

Avoiding: The Securities and Exchange Commission has allowed Wall Street's biggest firms to avoid punishment targeted specifically for fraud cases, The New York Times reports. The agency has repeatedly granted exemptions to laws and regulations that serve as a deterrent to fraud.

Twitter Tiff: A dispute in California federal district court is brewing over ownership of a Twitter account. The National Law Journal reports the ownership question--between an employee and his former company--remains unresolved. But a federal magistrate judge is allowing the company's legal claims to the account to move forward. The company, PhoneDog, sued the former employer for, among other things, alleged misappropriation of trade secrets.

Banned: The U.S. Senate overwhelmingly passed legislation that bans insider trading among members of Congress. The new law would prohibit lawmakers from trading stocks based on information the member of Congress learned on Capitol Hill. The Washington Post has coverage here.

Blocked: The U.S. Court of Appeals for the 9th Circuit has overturned a judge's ruling to unseal the video recording of the Proposition 8 trial. California's The Recorder has the story here. The appeals court said the trial judge had promised the recording of the proceedings would be used only in chambers.

Charged: Federal prosecutors have charged Switzerland's oldest bank on allegations it helped Americans hide more than a billion dollars in secret accounts, The Wall Street Journal reports. The prosecution of Wegelin & Co. is the first time prosecutors have charged a foreign bank, rather than account holders, in a tax evasion case.

Game Face: The New York Giants face the Patriots of New England on Sunday in Indianapolis for Super Bowl XLVI (46). If you are more into the ads than the action, The Wall Street Journal has this look at the crop of Super Bowl commercials. Perhaps to the delight of the Federal Communications Commission, Madonna, who is scheduled to perform during halftime, has promised "there will be no wardrobe malfunctions."

Judge Dismisses American University Wrestler's Suit Over Lost Scholarship

A Washington federal judge today dismissed (PDF) a lawsuit that had accused American University officials of mistreating a former star wrestler and reneging on an oral agreement to give him a full four-year scholarship.

Finding that Adam LoPiccolo failed to file his lawsuit within the three-year statute of limitations, U.S. District Judge Amy Jackson dismissed the case against the university and LoPiccolo's former coach, Mark Cody.

LoPiccolo claimed that the university recruited him under the guise of the full scholarship, only to pressure him into signing a reduced agreement after two years. The complaint also accused Cody of mistreating LoPiccolo and threatening to revoke his scholarship if he complained.

In June 2010, LoPiccolo first filed suit against the university in U.S. District Court for the Eastern District of Pennsylvania, alleging breach of contract. In May, a Philadelphia federal judge transferred the case to Washington.

Jackson wrote that because LoPiccolo first learned that his scholarship would not be renewed in January 2007, he had until January 2010 to file a timely lawsuit. By filing in June of that year, she wrote, the door had closed.

“Even in cases where a plaintiff files an appeal challenging the decision, the statute of limitations begins to run at the time of the alleged breach and not after the conclusion of the appeals,” she wrote.

A spokesperson for American University was not immediately available for comment. The university was represented by attorneys from Marshall, Dennehey, Warner, Coleman & Goggin in Philadelphia. An attorney for Cody, Jason Garber of Reger Rizzo & Darnall in Towson, Md., said Jackson “correctly decided that the complaint was untimely.” Robert Foster of the firm’s Philadelphia office also represented Cody.

An attorney for LoPiccolo could not immediately be reached. He was represented by Ellen Flynn and M. Celeste Bruce of Rifkin, Livingston, Levitan & Silver in Bethesda, Md.

Jackson did not address the merits of LoPiccolo’s lawsuit. The university had denied any wrongdoing. The judge granted LoPiccolo time to file an amended complaint, but wrote that, “A motion for amend may be of dubious utility given the fact that plaintiff was on actual notice of both his removal from the team and the revocation of his scholarship as of January 29, 2007, at the latest.”

Covington Scores Win in Match Against Comcast

The Tennis Channel, represented by attorneys from Covington & Burling, has won a case against Comcast, marking the first time an independent programming network has won a discrimination case against a cable or satellite company.

The ruling, handed down Tuesday by Federal Communications Commission Chief Administrative Law Judge Richard Sippel, opens the door to future court challenges to claims of discrimination.

Stephen Weiswasser, a Covington partner who worked the case, said that independent channels are hesitant to challenge the will of the networks because of the time and financial cost associated with fighting a court battle. He said that Covington had been working on this for two years leading up to the eight-day bench trial.

“It is good for the program industry and ultimately the public because it will almost certainly make it easier for similarly situated programmers who are being discriminated against to litigate for their rights,” Weiswasser said. “Diversity in ownership produces diversity in content.”

Covington attorneys showed how Comcast favored its wholly owned sports networks Golf Channel and Versus by assigning the Tennis Channel a listing further away from other sports channels. Comcast was ordered to remedy the listing and pay a $375,000 penalty to the government. Once remedied, this will dramatically increase the availability of Tennis Channel to subscribers.

Weiswasser worked alongside Covington partners William Phillips and Paul Schmidt and associates Robert Sherman, Leah Pogoriler and Neema Trivedi.

Weiswasser said the FCC is considering rule changes that would clarify the burden of proof to argue discrimination, a change he supports.

“The best thing the commission can do is clarify the rules and speed up the decision making process,” he said.

Covington Assists Big East in Addition of Five Schools

Two Washington-based Covington & Burling attorneys assisted the Big East in adding five schools to the conference, the firm announced late Wednesday.

Covington partner Peter Zern and associate Scott Roades represented the Big East with its agreements to bring the University of Central Florida, University of Houston, Boise State and San Diego State into the conference. Boise State and San Diego State will be eligible to compete in the 2013 football season. The other three schools will be eligible beginning with the 2013-14 academic year.

Syracuse, West Virginia and Pittsburgh will depart from the conference in the coming years, eventually bringing the total number of Big East teams to 12. The hope is that the additions will allow the conference to stage an annual conference football championship game.

Zern, who focuses his practice on sports and media transactions, finance and mergers and acquisitions, is a partner in the firm’s corporate finance practice.

“Our legal relationship with Covington & Burling has been extremely beneficial and integral to our expansion discussions as well as our television planning,” Big East commissioner John Marinatto said in a written statement.

On Cyber Monday, Feds Shut Down 150 Web Sites

Federal authorities on Monday announced the seizure of 150 domain names for Web sites that featured alleged knock-offs of authentic jerseys, handbags, sports equipment and other items.

The results of the undercover operation "In Our Sites" top last year's crackdown, when investigators shut down 82 web sites.

In most cases, the person or people operating the commercial sites do not challenge the domain name seizure in court, Lanny Breuer, the assistant attorney general for the Justice Department’s criminal division, told reporters.

“The sale of counterfeit goods cheats consumers and robs legitimate businesses – both large and small – of the fruits of their hard-earned work,” Breuer said in a statement today. “We will not tolerate those who seek to profit by abusing the Internet and stealing intellectual property at the expense of authors, artists and inventors.”

John Morton, who heads the U.S. Immigration and Customs Enforcement agency, told reporters on a conference call: “We want to promote a lawful online environment as much as we can and that means going after the small but significant number of Web sites that are engaged in frauds on consumers.”

Morton and Breuer said law enforcement officers worked with copyright holders in an undercover sting to determine whether any targeted Web site was offering counterfeit goods for sale. Investigators bought sports jerseys, golf equipment, DVDs, shoes, sunglasses and other items.

DOJ officials said in most of the cases the goods were shipped to the United States from a supplier in another country. China was a main source for much of the goods, according to law enforcement officials.

The domain name becomes the property of the federal government if no person challenges the seizure. Since 2010, federal authorities have shut down 350 domain names through “Operation In Our Sites.” Of the 350, 116 sites are now the property of the government.

The authorities post a banner on any site the government has seized. “MyJerseyShop.com,” for instance, is no longer up and running. The banner on the site notifies the visitor of the seizure and provides the penalties for willful copyright infringement.

Click here for a list of the web sites the authorities seized. A sampling form the list: louisvuitton-bags-forcheap.com, mlbjerseyswell.com, texansjerseystore.com and shopsbag.com.