The BLT: The Blog of Legal Times

In Public Records Suit, No Extra Time for the FBI

A federal judge today refused to allow the U.S. Justice Department to put on hold, for more than a year, a suit that seeks information about the FBI's use of technology to collect mobile phone data.

U.S. District Judge Colleen Kollar-Kotelly said the government failed to convince her that "exceptional circumstances" exist to temporarily stop the litigation. The Electronic Privacy Information Center in Washington sued the FBI in April 2012 over access to documents about the bureau's use of "StingRay" technology.

"The large volume of requests that the FBI must process, as well as the size and complexity of those requests and the limited resources available to process them, present exceptional circumstances," Kimberly Herb, a Justice Department lawyer, argued in court papers.

Kollar-Kotelly didn't buy the argument. The bottom line, the judge said, is that the FBI didn't show that the bureau is "deluged" with so many public records request to justify a delay in the court action. Click here for the opinion.

Judge Cuts Fees for Plaintiffs' Lawyers in LivingSocial Settlement

Citing inefficient staffing and high hourly rates, U.S. District Judge Ellen Segal Huvelle slashed attorney fees in half for plaintiffs' lawyers in multi-district litigation against daily deal company LivingSocial.

In a March 22 opinion approving a settlement between consumers and LivingSocial over expired deals, Huvelle awarded $1.35 million in fees to the 12 law firms that represented the plaintiffs, instead of the $3 million they asked for as part of the settlement. Co-lead plaintiffs' counsel at Cuneo Gilbert & LaDuca and Robbins Geller Rudman & Dowd did not immediately return requests for comment.

LivingSocial spokesman Andrew Weinstein said in a statement that the company was "pleased to have brought this litigation to a conclusion, so we can focus all of our efforts on creating great local experiences for our customers." The company was represented by a team from Cooley; lead attorneys Michael Rhodes and Christopher Durbin were not available this morning to comment.

At Arent Fox, New Highs in Revenues and Profits in 2012

Arent Fox, bolstered by a strong year in the firm's intellectual property, civil litigation and government contracts practices, saw revenue per lawyer increase 2.7 percent to $750,000 in 2012 and profit per partner rise to $850,000, a 2.4 percent increase over last year, our reporting shows.

"The year that wrapped up was another very good year, a record year, for Arent Fox," said the firm's managing partner, Matthew Clark, whose practice focuses on international trade proceedings. "We had strong performances all across the firm."

Gross revenue at Arent Fox increased to $242.5 million, up 5.2 percent from the previous year. Net income stayed relatively flat, inching up less than 1 percent to $85 million. The firm increased to 323 total lawyers, eight more than our reporting showed in the previous year.

Clark said regulatory work in the import-export control and health care arenas was "up pretty significantly" for the firm. Food and drug litigation was strong, he said. Arent Fox had a "spectacular" year on the intellectual property front, he added.

Language Access Advocates Call for Greater State Court Coordination

In the year since the American Bar Association adopted new guidelines for language access in the courts, proponents said today that although there's been progress, court systems nationwide can do much more to ensure all litigants understand what's happening when they step inside a courthouse.

Leading a panel on language access at the National Consortium on Racial and Ethnic Fairness in the Courts' annual conference, District of Columbia Court of Appeals Senior Judge Vanessa Ruiz said that the cost of services is always the "big elephant in the room." But Ruiz and other panelists urged court administrators to not only consider the cost of expanding services, but also the costs of not doing so – staff resources needed to handle case delays or appeals, for instance.

"Justice is resource-intensive," Ruiz said.

FCC Chairman Genachowski Announces Resignation

Julius Genachowski, the chairman of the Federal Communications Commission, today announced his plan to resign from the agency he's led since September 2009.

"Over the past four years, we've focused the FCC on broadband, wired and wireless, working to drive economic growth and improve the lives of all Americans," Genachowski said in a statement issued this morning. "And thanks to you, the Commission's employees, we've taken big steps to build a future where broadband is ubiquitous and bandwidth is abundant, where innovation and investment are flourishing."

The FCC said Genachowski plans to leave his post "in the coming weeks." President Barack Obama has not named his pick for a successor. Genachowski did not identify his post-FCC plans.

Earlier this week, Robert McDowell, a Republican member of the commission, and the FCC chief counsel, Sherrese Smith, announced their intent to leave the agency in the next several weeks.

Federal Government, Courts Close for Snow

If you have to ask, it's probably closed. As a major snow storm picked up around the metropolitan Washington region this morning, government workers (and many others) prepared for a day at home.

The federal government is closed. The U.S. District Court, U.S. Bankruptcy Court, and U.S. Court of Appeals for the District of Columbia are closed. The U.S. District Courts in Maryland are closed, although according to the courts' website one civil trial before U.S. District Judge Marvin Garbis in Baltimore will proceed as scheduled. The federal courthouse in Alexandria, Va., is closed.

Lawyers can still file documents with the courts electronically, but case processing – assigning case numbers and judges to new cases, for instance – won't take place until the courts and clerks' offices reopen.

D.C. Forensic Sciences Department Facing Transition Challenges

For Washington's new independent forensic sciences department and laboratory, which launched in October, the honeymoon period appears to be over. Appearing before the D.C. Council last week for the agency's first-ever annual performance oversight hearing, Director Max Houck faced questions about the lab's efficiency, communication with other law enforcement agencies, and management of the transition to independent forensic testing.

The $220 million facility in Southwest Washington is home to the forensic sciences lab, public health lab, and the Office of the Chief Medical Examiner, although only the forensic sciences and public health labs fall under the control of the newly created Department of Forensic Sciences. The department and lab were designed to make forensic testing independent of law enforcement, a key recommendation of a 2009 report on forensic science by the National Research Council of the National Academies.

During the oversight hearing on February 27, Houck said the department was making good progress in hiring and reorganizing how the city managed forensic testing. Councilmember Tommy Wells (D-Ward 6), chair of the judiciary and public safety committee, asked about previous testimony from D.C. police Chief Cathy Lanier that some testing was taking longer to complete, pointing out that the state-of-the-art lab was built with the expectation that it would speed up investigations. Houck said that he expected turnaround times to improve as they figured out lab procedures and protocols.

Federal Magistrate Judge Facciola Up for Reappointment

U.S. Magistrate Judge John Facciola is up for a third term this summer, and a panel of local attorneys and community members is seeking public feedback on his potential reappointment.

Facciola was first appointed as a federal magistrate judge in 1997. His second, eight-year term will expire in August. The eight-person panel that will vet Facciola for reappointment is accepting public comment through March 29.

In addition to his duties on the bench, Facciola is widely known as an expert on electronic discovery issues and speaks regularly on the topic. He's a member of the Sedona Conference Advisory Board and the advisory board of Georgetown University Law Center's Advanced eDiscovery Institute.

Patent Lawyers Urge Congress to Act on Trolls

A group of patent lawyers in Washington said at a panel discussion today that Congress should solve the problem that patent trolls pose to innovation, and urged legislators to pass the SHIELD Act to protect American companies from meritless lawsuits.

Organized by the Computer & Communications Industry Association, the event was held on Capitol Hill a day after representatives Peter de Fazio (D-Ore.) and Jason Chaffetz (R-Utah) introduced a bill to force patent trolls, more formally known as non-practicing entities, to take financial responsibility for what their many critics say are their frivolous lawsuits. According to a recent Boston University study, trolls cost operating companies $29 billion in direct costs in 2011.

"The dramatic rise in abusive patent litigation…imposes significant costs on American businesses, threatens innovation, and is ultimately detrimental to economic growth,” said Senator Mike Lee (R-Utah) at the event.

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.