The BLT: The Blog of Legal Times

NBC News Reporting Souter to Retire

NBC News reporter Pete Williams has just reported that Supreme Court Justice David Souter is planning to retire. Williams cites several unnamed government officials and notes that Souter has not hired law clerks for next term.

Souter ordinarily hires his clerks late, but with the starting date for next term's clerks roughly two months away, his tardiness was causing increasing buzz in recent weeks that his retirement was near. Souter, 69, has long been said to be eager to return to New Hampshire, and has lamented that he has the best job in the world in the worst city in the world.

UPDATE: National Public Radio's Nina Totenberg is also reporting that Souter plans to retire at the end of the term. She says his timing also represents a calculation on Souter's part that neither John Paul Stevens nor Ruth Bader Ginsburg will retire soon. Justices try to avoid multiple vacancies at the same time, if possible.

Dueling Marriage Marketers Gear Up for Court Fight

Sometimes love just isn’t enough, especially when economic times are trying. A trademark feud has been brewing between two marriage counseling services, and it’s starting to get ugly.

An April 20 complaint filed in the U.S. District Court in Alexandria, Va., by Marriage Savers Inc., a nonprofit group based in Potomac, Md., charges that Tennessee-based LovePath International Inc. has been selling competing products and services through its Web site with the confusingly similar domain name “marriagesaver.com” (singular).

According to the complaint, Marriage Savers, which owns the “Marriage Savers” trademark, has sold a “wide variety” of educational materials and services under that name since the early 1990s. The nonprofit contends that Joe Beam, the founder and president of LovePath International whose personal Web site boasts of his appearances on The Today Show and other talk shows, “is well aware” of Marriage Savers and its Web site “marriagesavers.com” (plural). The nonprofit says Beam has spoken at some of its conferences.

Marriage Savers seeks an injunction to stop the alleged infringement, triple damages, and a court order for LovePath to destroy any infringing products and production equipment. Marriage Savers is also charging false designation of origin, unfair competition, false advertising, cybersquatting, and unjust enrichment.

LovePath was not immediately available for comment. The marriagesaver.com site has been taken down.

Stevens Judge Urges Changes to Rules of Criminal Procedure

He’s already savaged the Justice Department in court and launched a criminal contempt probe into the wreckage of the Ted Stevens trial. So what’s next for U.S. District Judge Emmet Sullivan? Apparently a little lobbying.

Sullivan, who sits on the U.S. District Court for the District of Columbia, sent a letter to the Judicial Conference Advisory Committee this week urging it to make changes to the Federal Rules of Criminal Procedure that would require prosecutors to hand over all exculpatory information in a case to the defense lawyers.

The change would essentially inscribe the Supreme Court’s holding from Brady v. Maryland into the federal rulebook. According to his letter, the Judicial Conference considered a similar change in 2006, but met resistance from the Justice Department.

Brady issues, of course, turned out to be the undoing of the Stevens prosecution.

“An amendment to rule 16 that requires the government to produce all exculpatory information to the defense serves the best interests of the court, the prosecution, and, ultimately, the public,” Sullivan wrote. “Such a rule would eliminate the need for the court to enter discovery orders that simply restate the law in this area, reduce discovery disputes, and help ensure the integrity and fairness of criminal proceedings.”

Vodka Maker Gets Second Shot at Trademark

Champagne, cordon bleu, and vodka. The U.S. Court of Appeals for the Federal Circuit was ready for a dinner party.

The court yesterday ruled that Spirits International, the maker of Stolichnaya vodka, should get a second chance in its effort to register the trademark “Moskovskaya” for a brand of vodka.

The Trademark Trial and Appeal Board last year had rejected the mark because “Moskovskaya” has nothing to do with its namesake Moscow and thus would deceive consumers as geographically deceptively. The Federal Circuit disagreed and remanded the case for further evaluation.

At issue in the case is whether a substantial number of the potential consumers will likely be influenced in purchasing decisions thinking the vodka is “from Moscow.” The Federal Circuit noted only 0.25 percent of the U.S. population speaks Russian. But the court said this question remains: Are Russian speakers a greater percentage of the vodka-drinking public?

Judges Randall Rader, Richard Linn, and Timothy Dyk ruled unanimously in favor of Spirits International.

“The ordinary American consumer would not translate VEUVE CLICQUOT because its literal translation would be irrelevant to even those ordinary Americans who speak French,” Dyk wrote by way of explanation. “Similarly, CORDON BLEU has such a well established alternative meaning that the literal translation is irrelevant because even French speakers would not translate the mark.”

Toast a win for Covington & Burling senior counsel Bingham Leverich, who argued the case for Spirits International. Asked whether he speaks Russian, Leverich responded: “The answer is nyet.” And Leverich, co-chair of the firm’s trademark and copyright group, admitted he has not consumed Moskovskaya vodka, which he says is a big seller in Europe.

Argument in the Moskovskaya trademark case happened to land on a panel where one of the three judges speaks Russian.

Rader, in fact, says he speaks three languages—Russian, Finnish, and a “little English.” Here's how Rader explains it to The BLT: “My Russian does not enable me to give long technical speeches, but I can carry on a conversation quite fluently. My Finnish is 'rusty,' but I was once a translator for that language. My English gets more criticism than either of the other two, especially in legal opinions.”

Kilpatrick Stockton Confirms Mark Levy's Death

After the firm initially limited its comments to confirming an attorney death in the D.C. office, Kilpatrick Stockton co-managing partner Bill Dorris issued the following e-mailed statement through a firm spokesman: 

"With sadness we confirm that Kilpatrick Stockton attorney Mark Levy died this morning. Mark Levy was well known and highly respected for his successful appearances before the Supreme Court of the United States. We offer our deepest condolences to his family, friends and colleagues. Out of respect for his family, we cannot offer additional comments at this time." 

Kilpatrick Stockton's Mark Levy Dead

Mark Levy, Washington-based counsel and chair of Kilpatrick Stockton's Supreme Court and Appellate Advocacy practice, died in the firm's D.C. office this morning, the BLT has confirmed with lawyers both inside and outside the firm.  

"We in the legal community are losing someone who is hard to replace,” says solo practitioner Dennis Gingold, who has worked with Levy and calls him one of the District’s finest appellate lawyers. “This is a tough time.”

According to the Metropolitan Police Department, a male individual committed suicide this morning at the 600 block of 14th Street N.W. Kilpatrick's offices are located at 607 14th Street N.W.

A man who works in the building, but not at the firm, tells the BLT that by 7:45 this morning, two ambulances and a fire truck were on the scene. 

Lawyer Dead in Kilpatrick Stockton D.C. Office

Kilpatrick Stockton spokesman John Page has confirmed in a statement that a lawyer at the firm died this morning:
 
“There was a death at Kilpatrick Stockton earlier today. At this point, it is inappropriate for us to comment further. Our thoughts and prayers go out to the attorney's family and colleagues.”
 
Earlier today, Above the Law posted an internal email sent to firm employees in the D.C. office, stating that the Metropolitan Police Department was responding to “an unconscious male with a gunshot wound to the head on the 11th floor." 
 
The Fulton County Daily Report, a BLT sibling publication, reported yesterday that Kilpatrick Stockton had laid off 24 associates and counsel across U.S. offices.

More details to come.

The Morning Wrap

Debating Preclearance: Opponents of Section 5 of the Voting Rights Act invoked the election of President Barack Obama in briefing their case before the Supreme Court, but Obama was not mentioned by name during Wednesday’s oral argument, Tony Mauro reports on LegalTimes.com and NLJ.com. Still, conservative justices found other ways to express their unease with the provision. Justice Anthony Kennedy, whose vote will be crucial, voiced deep concern about the differential treatment of states under the law.

Kelo Fallout: The Wall Street Journal reports on the efforts of local and state governments to limit “eminent domain,” four years after the Supreme Court’s ruling in Kelo v. City of New London. The ruling upheld the constitutionality of takings for the purpose of economic development. In the latest reaction to the ruling, property-rights advocates are pushing legislatures to revise the definition of “blight.”

New Focus for ICE: The New York Times reports that Immigration and Customs Enforcement field offices are set to receive guidelines today instructing agents to take aim at employers and supervisors for prosecution “through the use of carefully planned criminal investigations.” The guidelines could lead to a change from the Bush administration, under which ICE agents rarely developed the evidence necessary to show whether businesses were knowingly using illegal labor, the Times reports.

Grand Tour: Attorney General Eric Holder Jr. continued his diplomatic trip through Europe with a speech Wednesday publicly asking for Europe’s assistance to close the Guantanamo Bay detention center. “The story of the last half-century is one of each side of the Atlantic turning to the other for help in times of need, and today is no different,” Holder told about 100 policy experts, academics, and journalists, The Associated Press reports.

Pot Tax: As Benjamin Franklin would say, this was probably certain to happen. The city of Oakland, Calif., is considering a tax on medical marijuana, which federal law still bans. Prospects for the tax “were made brighter,” The Wall Street Journal reports, when Holder said in February that the government would no longer raid state-approved dispensaries. Lawyer James Anthony says the tax would prove “that government-regulated dispensaries are good neighbors.”

In New Courthouse, En Banc Hearing Draws Crowd

A bucket of paint held a door to the ceremonial courtroom open for visitors this morning, and the first words out of a clerk’s mouth were not “All rise,” but rather instructions on how to leave in the event an alarm sounds. Evidently some things are still being ironed out at the new home of the D.C. Court of Appeals, which opened its doors April 20 at the Old Courthouse across the street from D.C. Superior Court.

But the smell of fresh paint didn’t seem to bother the 75 or so visitors who filed in to watch the court’s first en banc sitting in the newly renovated courthouse. One woman in the crowd joked about getting popcorn. The show began at 10 a.m. and ran a little more than 90 minutes.

Argument was lively in the case, which explores whether a D.C. Superior Court judge acted outside the scope of her authority when she discharged a sitting juror based on questions he’d asked of witnesses in a drug possession case. Judge Zoe Bush found the juror’s questions “strange” and believed, ultimately, that he would not be able to follow the law in deliberation.

“My concern is that he’s a strange person and that he won’t be able to deliberate fully because of his strangeness,” Bush said, according to court records. The prosecution requested the juror be dismissed; the judge obliged and installed an alternate. The defendant, Novel Hinton, was convicted.

Last year, a three-judge panel of the appeals court found the trial judge abused discretion in discharging the juror.

Today Jaclyn Frankfurt, who argued for the D.C. Public Defender Service as amicus in the Hinton case, said the juror was clearly paying attention during the trial and should have been allowed to try to persuade fellow jurors about his thoughts on the case. Judges cannot interfere without the composition of the jury without cause, Frankfurt said. “It strikes at the very core of the jury trial right,” she said. Arguing for Hinton was solo practitioner Walter Booth of Bethesda.

Assistant U.S. Attorney Mary McCord countered that there was no prejudice against Hinton because a properly seated jury deliberated and, after reaching consensus, found him guilty.

Moreover, the jury Hinton would get on remand would be no different—in any fundamental way—than the one that heard his case the first time, McCord said. Judge Stephen Glickman questioned that argument, saying there’s always the possibility another juror eager to question witnesses—resembling the juror who was discharged—would be sworn in to sit on the panel.

Judge Inez Smith Reid had her eyes on the future: “If we don’t reverse in this case, what about the next case?” Reid offered up scenarios in which judges would be forced to decide whether “strange” or “bizarre” behavior—such as laying out and counting pennies—would be grounds for dismissal from a jury.

Morgan, Lewis & Bockius Adds More Lawyers From Sonnenschein

Morgan, Lewis & Bockius announced yesterday that the firm had picked up a second installment of health care lawyers from Sonnenschein Nath & Rosenthal.

Earlier this month, Morgan Lewis added five partners to its Washington office and one to its San Francisco office from Sonnenschein. The addition of two partners and five associates in Washington announced yesterday brings the number of lawyers who left Sonnenschein for Morgan Lewis this month to 13.

"These additions allow us to provide fuller services on the health care front than we had been able to do before," says Kathleen Sanzo, who chairs Morgan Lewis' health care regulation practice. With the additions, that practice has grown to about 30 lawyers.

Sonnenschein spokesman Jeffrey Mutterperl says the firm does not usually comment on departures, though he notes that Sonnenschein's health care practice has added at least six lawyers of its own since the beginning of 2009.