The BLT: The Blog of Legal Times

Morning Wrap

Same-sex Unions: Following a May 14 directive issued by New York Gov. David Paterson’s legal counsel, state agencies have been instructed to revise their policies to recognize same-sex unions from other jurisdictions, says the NYT.

A Recruiter Scorned: The New York Law Journal via Law.com reports that a New York judge has rejected a legal recruiter’s attempt to collect fees from Blank Rome after the law firm completed a merger proposed by that recruiter, but used another recruiting service.

Asbestos: A ruling issued yesterday in the 4th Circuit Court of Appeals gives new life to thousands of asbestos-related lawsuits, reports the Daily Business Review via Law. com.

War Crimes: The WSJ reports that a U.N.-backed war crimes court has doubled prison sentences for two Sierra Leone ex-militia leaders convicted of overseeing hundreds of killings during the country’s 11-year war.

Fashion: Perhaps it’s a good time to assess the fashion at your firms — The WSJ’s “On Style” column questions whether “Sex and the City,” the hit HBO series and soon-to-be-released movie, has inspired too-sexy workplace attire that pushes past appropriateness.

This Week in Points of View

How do we define marriage? The California Supreme Court recently made its choice, saying yes to same-sex marriage. This week in Legal Times, two supporters of that ruling try to put it in context.

Lara Schwartz of the Human Rights Campaign praises the ruling as a "lesson in bread-and-butter constitutional principles." The decision is not a radical departure from prior law, she argues. Rather, it is "simply a departure from prior resistance to acknowledging that gay people are equal to everyone else."

Lawrence Levine, a professor at McGeorge School of Law in Sacramento, contends that the decision was largely preordained by California's legal landscape. The state had already granted gays and lesbians the right to form domestic partnerships that had virtually all the rights of marriage, which made withholding actual marriage hard to defend. Levine suggests that a similar result could happen in states such as Vermont and New Jersey that also embrace a marriage equivalent for their gay citizens.

Sullivan & Worcester Announces Climate Practice

When Sullivan & Worcester lost it's energy law and lobbying practice to Sonnenschein, Nath & Rosenthal last month, the firm said it intended to rebuild — with a slightly different focus. Now it's announced the formation of a new climate change practice.

The group, composed entirely of lawyers already working within the firm’s environmental, regulatory, and securities practices, will focus on issues like carbon trading and venture capital investments in sustainable energy. The full announcement can be viewed here.

Blackwater's Suit Against Wiley Rein Dismissed

D.C. Superior Court Associate Judge Judith Retchin yesterday threw out the $30 million legal malpractice suit brought by Blackwater Security Consulting against Wiley Rein and the firm’s former partner Margaret Ryan. Blackwater sued the Washington law firm in January, alleging that Wiley lawyers neglected critical case law and statutes while defending it in a 2005 wrongful death case brought on behalf of four Blackwater guards brutally killed in Fallujah, Iraq in 2004. Legal Times initially reported on the case here.

In her May 27th order to dismiss the case, Judge Retchin also disagreed with Blackwater’s malpractice claims, but ultimately threw out the suit on damages grounds. “The Court finds Plaintiffs’ alleged damages to be speculative,” she wrote. “Thus, there is no compensable injury for the alleged legal malpractice.”

The Wiley team that defended Blackwater in the underlying case consisted of Fred Fielding, now White House counsel; Barbara Van Gelder, now a partner at Morgan, Lewis & Bockius; Scott McCaleb, still a partner at Wiley; and Margaret Ryan, now a judge for the U.S. Court of Appeals for the Armed Forces. Blackwater’s malpractice suit named Ryan as a separate defendant because, according to the complaint, she led the defense team.

In the malpractice complaint, Blackwater contended the wrongful death suit would have been dismissed if it were heard in federal court, where the defense could have relied on similar cases where claims against battlefield contractors were thrown out. But the 2005 case was kept in Wake County Superior Court in North Carolina, despite a motion filed by the Wiley team to get it moved to the U.S. District Court for the Eastern District of North Carolina. The malpractice complaint alleged the motion failed predominantly because the Wiley lawyers failed to invoke the federal officer removal statute, which gives federal jurisdiction to claims involving federal officers.

Wiley’s motion to dismiss the malpractice suit against it contended that Blackwater could not have been considered a “federal officer” in the underlying case because the guards killed did not contract directly with the U.S. government, were not providing security for U.S. military personnel, and were not overseen by the U.S. military.

In her dismissal, Judge Retchin said Blackwater’s claims that it was entitled to remove the wrongful death case to federal court under the federal officer removal statute, and that “dismissal was the only appropriate remedy” for the case in federal court were “legal conclusion[s] couched as factual allegation[s].”

“The judge’s opinion lays bare a fundamental problem in Blackwater’s case—namely that the state court would rule differently than the federal court,” says Mark Foster, one of the Zuckerman Spaeder partners who represented Wiley in the malpractice suit. Zuckerman partner Elizabeth Taylor also represented Wiley, and Barry Nace of D.C.’s Paulson & Nace represented Blackwater.

The underlying wrongful death case against Blackwater is still pending in Wake County Superior Court. As for the malpractice case, Foster acknowledges that because it was dismissed without prejudice, Blackwater could file suit again. “We’ll see what happens,” he says.

Morning Wrap

Double Trouble: Former Baker & McKenzie partner Martin Weisberg has been indicted for a second time, reports the New York Law Journal via Law.com. Weisberg was charged with securities fraud last fall, and yesterday, prosecutors added another indictment for stealing from a client escrow account.

Patent Problem: Morgan, Lewis & Bockius is facing a malpractice suit brought by former client Landmark Screens, reports The Recorder via Law.com. Landmark claims the firm botched a patent application and then failed to disclose the mistake quickly enough.

Dell Ruling: The New York State Supreme Court released its ruling yesterday against Dell Inc. and the company’s financing arm for participating in deceptive business practices, reports the WSJ.

Voter Rights: The NYT reports on the voter rights cases currently gripping Texas, including one headed to trial today against Texas’ attorney General Greg Abbott and secretary of state Phil Wilson. In that suit, the Texas Democratic Party alleges intimidation against minority, predominantly Democratic voters.

Bratz:The federal copyright trial between Mattel and rival toymaker MGA Entertainment over the popular Bratz doll franchise began yesterday in California. The WaPo has more.

Judicial Nomination Commission Has Vacancies to Fill

The Judicial Nomination Commission will be busy filling vacancies on the Superior Court of the District of Columbia — after it fills one of its own.

The commission has begun receiving applications to fill the vacancy left in the wake of Judge Mary Terrell’s May 30 retirement. The commission is also starting to look for a successor for Chief Judge Rufus King III, who announced that he will retire after Sept. 30.

The commission itself has a vacancy and is awaiting an appointment from the D.C. Council.

Vacancies on the court are fairly common. Between 1995 and 2006 there were three vacancies a year. This year, the court has already had two announced vacancies.

Chief judge vacancies are much less common. King has served as the court's chief judge for the past eight years.

Though the commission will appoint a new chief judge from within the ranks of the Superior Court judges, the court will be accepting applications from the District’s legal community to fill Terrell’s spot.

Qualified applicants must be active members of the D.C. Bar and must be residents of the District of Columbia. The must also be actively practicing law, on the faculty of a D.C. law school, or be working as an attorney for the United States or the District of Columbia government for the past five years.

DOJ Settles Suit With National Association of Realtors

Update:
The Antitrust Division this afternoon announced it will settle a suit filed in 2005 against the National Association of Realtors that challenged the trade group’s practice of limiting discount Internet brokers' access to its listings, averting a bench trial scheduled for July.

Justice Department officials say consumers should benefit from increased competition, more choices and lower commission rates as a result of the 10-year agreement, which will be overseen by U.S. District Judge Matthew Kennelly of Chicago.

“The National Association of Realtors will enact a new policy that has been vetted by the Department of Justice that guarantees that Internet-based brokers will not be discriminated” when they compete with traditional brick-and-mortar real estate brokers, said Deputy Assistant Attorney General Deborah Garza of the Antitrust Division. “What we’ve done is achieve a very lasting and important change in the conduct of NAR and its affiliated Multiple Listing Service members and affiliates.”

According to Garza, the realtors trade group had enacted anti-competitive rules in 2003 and 2005 so that 1.2 million members could “opt out” from sharing their listings with non-traditional, web-based realty services. Another policy in question prevented a broker from educating home buyers through their websites and making ferrals to other brokers for a fee. The group will agree to repeal such rules and require that their affiliates do the same.

“This is clearly a win-win for the real estate industry and the consumers we serve,” said NAR President Richard F. Gaylord in a prepared statement. Gaylord said the "DOJ's settlement compromise" does not mean his group admits liability or wrongdoing.

The Antitrust Division will hold a 60-day public comment period before Kennelly considers a final judgment. The agreement was reached by veteran trial attorney Craig Conrath of the division’s Litigation III section and Jack Bierig, a Sidley Austin partner in Chicago.

Mayer Brown's New D.C. Partner-in-Charge

Legal Times has learned that Mayer Brown partner Mark Ryan will replace Peter Scher as partner-in-charge of the D.C. office.

WaPo columnist Jeffrey Birnbaum today detailed Scher’s upcoming departure from Mayer Brown to become executive vice president in charge of global government affairs for J.P. Morgan Chase. Scher replaced partner Kenneth Geller as head of the D.C. office after Geller became firmwide vice chairman last year.

Ryan is currently chairperson of the firm’s D.C. litigation practice. He joined Mayer Brown in 1981, and focuses on complex commercial litigation and administrative proceedings. You can read his entire firm bio here.

A spokesman from Mayer Brown said an official announcement of Ryan’s appointment will come soon.

Supreme Court, Inside and Outside

As usual, the Supreme Court is saving its biggest opinions until last. The Court issued three opinions today, and none were among the blockbusters that will be decided before the end of June (on the Second Amendment, punitive damages, Guantánamo detainees, and the death penalty.) Two of the decisions issued Tuesday (Gomez-Perez v. Potter and CBOCS West v. Humphries,) affirmed that federal workplace anti- discrimination statutes protect workers from retaliation for reporting bias. The third, Riley v. Kennedy, offered a narrow view of Voting Rights Act preclearance rules. The Court won't sit again until next Monday to issue opinions.

At about the same time the Supreme Court was issuing its decisions, an important trial about the Supreme Court was getting underway at the D.C. Superior Court. Thirty-five antiwar demonstrators who were arrested inside and outside the Supreme Court on January 11 went on trial for violating 40 U.S.C. 6135, which makes it unlawful to "parade, stand, or move in processions or assemblages" in the Court building or grounds or to display a "flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement." That unusual wording has been defended by the government as serving the goal of not giving the public the idea that the Supreme Court can be swayed in its decision-making by public opinion or protests.

Most of the defendants in court Tuesday were dressed in orange jumpsuits — not government-issued prison garb, but rather suits meant to symbolize Guantánamo detainees. As the defendants' names were called, each one stood and said he or she was there to symbolize a named Guantánamo detainee. One defendant Malachy MacBride, said he was there to advocate shutting down "Guantánamo Concentration Camp." All are representing themselves pro se, but they are aided by lawyer Mark Goldstone, a veteran defender of demonstrators arrested at the Supreme Court. Judge Wendell Gardner Jr. discouraged speechifying, but allowed some opening remarks that went beyond the facts of the case.

In her opening statement Assistant U.S. Attorney Magdalena Acevedo said flatly, "This case is not about Guantánamo. This case is not about free speech." Instead, she said, it was about the defendants violating a law about where they could demonstrate, even after repeated warnings. Demonstrations are allowed on the public sidewalk in front of the Court, but the forbidden activity began when the protestors went up the eight marble steps onto the Court's plaza. (For photos of the demonstration, check the Witness Against Torture Web site.) The trial is expected to last several days.

Robert Jones Lands at Alston

Robert Jones, the former head of Patton Boggs' transportation lobbying practice, is headed for a new destination: Alston & Bird. At his new firm, Jones will head the legislative affairs practice. The announcement, complete with complimentary quotes from former Senate Majority Leaders Tom Daschle (D-N.D.) and Bob Dole (R-Kan.) can be viewed here.

Its Jones first move since he became a lobbyist 18 years ago. Prior to coming downtown, he served as an aide to Sen. John Stennis (D-Miss.) and Barbara Mikulski (D-Md.)