The BLT: The Blog of Legal Times

JNC Lists Applicants for Superior Court Vacancy

The Judicial Nomination Commission has announced the applicants for the vacancy on the D.C. Superior Court bench that was created when Judge Odessa Vincent retired on April 6.

Of the 21 people with their hats in the ring, eight are magistrate judges at Superior Court. One, Judge Joseph Beshoiri, is relatively new to the bench, having been installed as a magistrate in March 2009.

The other applicants come from the U.S. Attorney’s Office, D.C. Public Defender Service, D.C. Office of Administrative Hearings, D.C. Attorney General’s Office, the Justice Department, and other private practice roles.

The JNC will be taking comments from the public on the applicants through May 20, 2010.

And the applicants are:

• Maria Amato (General Counsel, D.C. Department of Corrections)
• Joseph Beshouri (Magistrate, D.C. Superior Court)
• Diane Brenneman (Magistrate, D.C. Superior Court)
• Claudia Crichlow (Judge, D.C. Office of Administrative Hearings)
• Danya A Dayson (O'Toole Rothwell Nassau & Steinbach)
• Diana Harris Epps (Magistrate, D.C. Superior Court)
• Sharon Goodie (Judge, D.C. Office of Administrative Hearings)
• Jeffrey Gutman (George Washington University Law School Community Legal Clinic)
• Robert Hildum (Deputy Attorney General for Public Safety, D.C. Attorney General’s Office)
• Teresa Howie (Assistant U.S. Attorney for the District of Columbia)
• Karen Aileen Howze (Magistrate, D.C. Superior Court)
• John McCabe Jr. (Magistrate, D.C. Superior Court)
• Aida Melendez (Magistrate, D.C. Superior Court)
• Nathan Neal (Supervising Attorney, D.C. Law Students in Court)
• Lori E. Parker (Magistrate, D.C. Superior Court)
• Maria Raffinan (a supervising attorney in the D.C. Public Defender Service)
• Valencia Rainey (Gephardt & Associates)
• Armando Rodriguez-Feo (Justice Department, Civil Division)
• Mary Ann Snow (Assistant U.S. Attorney for the District of Columbia)
• Sean Staples (Attorney, Children’s Law Center)
• Elizabeth Carroll Wingo (Magistrate, D.C. Superior Court)

Candidates for D.C. Bar President-Elect Make Their Case

Over drinks and appetizers at Annie's Paramount Steak House in northwest Washington on Thursday evening, the two candidates made their case to be chosen president-elect of the D.C. Bar for the 2010-2011 term.

Speaking to about 50 people, Banner & Witcoff partner Darrell Mottley and Gura & Possessky name partner Laura Possessky gave short speeches about their goals for the bar.

Mottley said the D.C. Bar needs to improve its use of social networking to increase discussion about legal developments and to help lawyers link up with pro bono clients. "The need is really high for the disadvantaged in D.C. so we need to increase the funding for their services," Mottley noted earlier that evening.

Possessky said in her speech that she wants to "activate the bar" to help lawyers find jobs. She listed increasing diversity and funding for pro bono services as other priorities.

"I think our members are our greatest asset," she said. "I want to make this the best bar in America."

If elected, either Mottley or Possessky will serve one year as president-elect, one year as president and one year as immediate past president.

Kim Keenan of The Keenan Firm is the current president. Sidley Austin partner Ronald Flagg is the president-elect.

Mottley, the current chair of the D.C. Bar Council on Sections, is an intellectual property lawyer, focused on patent and trademark law.

Possessky, a member of the D.C. Bar’s Board of Governors, practices intellectual property, media and entertainment law. She has also headed the D.C. Bar’s Arts, Entertainment, Media and Sports Law Section.

D.C. Bar members can begin voting on May 5, and the ballot box will remain open until June 4.

The candidate event was sponsored by GAYLAW, the Lesbian, Bisexual, Gay and Transgender Bar Association of Washington, D.C.; the Asian Pacific American Bar Association of the Greater Washington, D.C., Area; the Greater Washington Area Chapter of the National Bar Association’s Women Lawyers Division; the Hispanic Bar Association of D.C.; the South Asian Bar Association of Washington, D.C.; the Vietnamese American Bar Association of the Greater Washington, D.C., Area; the Washington Bar Association; and the Women's Bar Association of D.C.

Steptoe Adds Two to Homeland Security Practice

Steptoe & Johnson has added two to its Homeland Security practice in Washington. Stephen Heifetz, who joined Steptoe as a partner, and Marc Frey, who joined as senior director, were previously in the Homeland Security Department’s Office of Policy. They started work at the firm on April 19.

At DHS, Heifetz was deputy assistant secretary and, during the transition to the new administration, acting assistant secretary for the Office of Policy Development. He worked on security screening policies for people and cargo and developed new laws and regulations for the Committee on Foreign Investment in the United States, and he reviewed hundreds of proposed acquisitions of U.S. companies by foreign investors.

At Steptoe, Heifetz and Frey will advise companies on homeland security matters as well as anti-money laundering regulations, the Foreign Corrupt Practices Act, export controls, and economic sanctions laws.

Prior to serving as chief of staff for the Office of Policy Development under Arif Alikhan, the office's assistant secretary, Frey spent three years overseeing the Visa Waiver Program and led government negotiations on security and law enforcement agreements with the 36 countries participating in the program. Frey also served as a senior adviser from 2005 to 2007 in the DHS Office of Security, where he shaped counterintelligence, law enforcement, facility protection, contingency planning, and other security-related policies and programs.

Heifetz said he and Frey made the move to Steptoe to join their old boss Stewart Baker, who left DHS in March 2009 as assistant secretary for policy and now heads the three-professional Homeland Security practice at Steptoe.

“Steptoe has the exact kind of platform we were looking for because it has existing strengths in a number of areas like international regulation and compliance, CFIUS and FCPA, where our experience at DHS will be a good benefit for clients,” Heifetz said. “Homeland security policies increasingly require companies to understand how the department works.”

A Documentary Preview of the Next Confirmation Battle

Even before he or she is named, the looming fight over the successor to Supreme Court Justice John Paul Stevens is already being described in epic terms -- as in "epic battle," according to this report by Kenneth Walsh in US News & World Report.

If you want to get ready for battle, you might check out a new documentary called "Advise & Dissent," premiering at the E Street Cinema Wednesday, May 5, as part of the "Politics on Film" festival. The documentary takes you behind the scenes of the confirmation battles of 2005-6 involving John Roberts Jr., Harriet Miers, and Samuel Alito Jr. We saw a rough-cut preview in 2008, and it brought back vivid memories of the fast-moving events from all sides. Sens. Arlen Specter and Patrick Leahy play major roles, as do advocates Ralph Neas and Manuel Miranda.

"The film definitely has new resonance as everyone gears up around Justice Stevens' replacement, said filmmaker David Van Taylor of Lumiere Productions in New York. You can preview a trailer of the film here.

DOJ Dispatches Attorneys to New Orleans to Monitor Oil Spill

As the plaintiffs' bar gears up in response to the oil spill in the Gulf of Mexico, the Justice Department is sending its own team of attorneys to New Orleans to meet with federal prosecutors and response teams.

Assistant Attorney General Ignacia Moreno of the Environmental and Natural Resources Division, who will head the DOJ team, is joining Assistant Attorney General Tony West of the Civil Division, the Justice Department said today. Moreno and West are expected to meet with U.S. Attorney Jim Letten of the U.S. Attorney’s Office for the Eastern District of Louisiana.

“The British Petroleum oil spill has already cost lives and created a major environmental incident,” Attorney General Eric Holder Jr. said in a statement today. “The Justice Department stands ready to make available every resource at our disposal to vigorously enforce the laws that protect the people who work and reside near the Gulf, the wildlife, the environment and the American taxpayers.”

President Barack Obama said today that the spill, which followed the April 20 explosion of a drilling rig 130 miles southeast of New Orleans, is worsening. Obama said BP is “ultimately responsible under the law for paying the costs of response and cleanup operations, but we are fully prepared to meet our responsibilities to any and all affected communities.”

On Thursday, plaintiffs’ lawyer Daniel Becnel Jr. filed a class action in New Orleans federal district court over damages caused by the rig explosion. The suit was filed on behalf of Louisiana shrimpers, fisherman and commercial boaters. Becnel said he anticipates the class will grow since oil is still leaking and winds are driving the slick. "Every hour, it's going to get bigger," Becnel said Thursday of the class.

Report Shows 26 Percent Increase in Wiretap Applications

More than 2,370 applications for wiretaps were filed and granted last year in state and federal courts across the country, marking a 26 percent increase above the previous year, according to a report issued today by the Administrative Office of the U.S. Courts.

The report, which captures applications filed between January and December last year, shows that 86 percent of all wiretap applications targeted drug crimes. Homicide cases were the second most frequently cited crime.

Federal authorities accounted for 663 applications, and state authorities made up the rest (1,713 applications) of the 2,376 wiretaps orders. Wiretap applications in California, New York and New Jersey made up 71 percent of the applications that state judges approved. The AO report said no applications were denied in either state or federal court. (Last year's numbers topped 2007, in which 2,208 applications were approved.)

The top five federal district courts with the most intercept orders in 2009: Arizona (72); Northern District of Illinois (51); Southern District of Texas (37); Northern District of Texas (32); and the Northern District of Georgia (31). There were 16 orders filed in the District of Columbia, and eight applications in both Maryland and the Eastern District of Virginia.

The wiretap report examines, among other things, the average length of wiretaps, the cost associated with a wire intercept and the impact: arrests and convictions. Click here for a copy of the report.

Two Suits Challenge Heart of Voting Rights Act

Two lawsuits attacking the constitutionality of the heart of the nation’s landmark Voting Rights Act are now underway in federal district court with an ultimate eye on the U.S. Supreme Court.

The challenges, one filed April 27 and the other earlier this month, are before U.S. District Judge John Bates in Washington’s federal court. And both suits are being handled by some major league veterans in this area of the law.

Bert Rein and William Consovoy, partners in Washington’s Wiley Rein, are representing Shelby County, Ala., in its April 27 suit: Shelby County, Ala. v. Holder. Michael Carvin, partner in the Washington office of Jones Day, is lead counsel to a group of residents from Kinston, N.C., in LaRoque v. Holder.

The Project on Fair Representation, a Virginia-based, conservative nonprofit legal defense fund that supports challenges to racial and ethnic classifications, is funding the Alabama lawsuit, according to its director, Edward Blum. And the North Carolina suit is receiving similar support from the Center for Individual Rights, a Washington conservative public interest law firm.

Both suits focus on constitutional questions left unanswered by the Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. One v. Holder. That case involved a direct challenge to section 5 of the Voting Rights Act, which Congress reauthorized in 2006. Section 5 was extended for 25 years.

Section 5 prohibits certain state and local jurisdictions—mostly in the south-- from changing voting procedures without first obtaining federal preclearance that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.

In Northwest Austin, the justices avoided answering the question of Section 5’s constitutionality by deciding the case on other grounds, but Chief Justice John Roberts Jr., in his majority opinion, voiced strong skepticism about its constitutionality, essentially warning Congress to fix it before another lawsuit reached the high court.

Alabama has been a so-called covered jurisdiction under the Voting Rights Act since 1965. In its lawsuit, Shelby County contends that Section 5 and its trigger mechanism in Section 4(b) exceed Congress’ enforcement powers under the 14th and 15th Amendments. In reauthorizing the act in 2006, the county says, Congress lacked evidence of intentional discrimination that warranted the act’s enactment in 1965 and its three subsequent extensions. There also was no evidence, it says, that discriminatory voting practices would be resurrected if Section 5 were eliminated.

“This is the third lawsuit that I have turned to Wiley Rein to litigate,” said Blum of the Project on Fair Representation. The firm, he added, also is handling a lawsuit challenging what he contends is the reintroduction of racial preferences in admissions by the University of Texas.

Blum, however, follows Voting Rights Act activity closely. “Every denial of preclearance, every Section 5 objection that DOJ issues, I eventually find out,” he said. “I’m like a whale going through plankton.”

Jones Day’s Carvin is representing the Kinston, N.C., residents on a pro bono basis. Last year, Attorney General Eric Holder Jr. refused to approve a Kinston voter referendum to switch from partisan to non-partisan voting in city council elections. The referendum had been approved by a 2-1 margin. The lawsuit notes that blacks constitute 64.6 percent of registered voters in the city.

The Justice Department stated in its objection letter that “elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.”

The Kinston suit, which focuses solely on Section 5, contends the preclearance requirement for voting changes exceeds Congress’ authority under the Fifth, 14th and 15th amendments.

No response has been filed yet to the suits by the Justice Department.

DOJ Racks Up Another $100 Million in Pharmaceutical Settlements

The U.S. Department of Justice announced two settlements with pharmaceutical companies yesterday for a total of more than $100 million in penalties under the False Claims Act and the Food, Drug and Cosmetic Act. The announcements came two days after the department reached a $520 million settlement with AstraZeneca for similar violations involving unapproved uses of drugs.

In one settlement, two Johnson & Johnson subsidiaries, Ortho-McNeil Pharmaceutical LLC and Ortho-McNeil-Janssen Pharmaceuticals Inc., will pay more than $81 million for the off-label promotion of the epilepsy drug Topamax, according to a DOJ statement.

The U.S. Food and Drug Administration approved the drug for the treatment of partial onset seizures. However, the manufacturers also allegedly promoted the drug for psychiatric uses.

Ortho-McNeil-Janssen Pharmaceutical's promotion of the drug caused false claims to be submitted to government health care programs. The company will pay more than $75 million to settle civil allegations under the False Claims Act.

It will also enter into a corporate integrity agreement with the Department of Health and Human Services to ensure the alleged violations aren’t repeated.

Ortho-McNeil Pharmaceutical will pay more than $6 million in criminal fines for violating the Food, Drug and Cosmetic Act. The company allegedly marketed the sale of Topamax by hiring outside physicians to join sales representatives on sales calls and speak at events promoting the drug for off-label uses.

In the other settlement, Schwarz Pharma Inc., a subsidiary of Belgium-based UCB S.A., will pay $22 million for violations of the False Claims Act regarding the drugs Deponit and Hyoscyamine Sulfate Extended Release. The company allegedly failed to tell the Centers for Medicare and Medicaid Services that the two products, neither of which were approved by the FDA, did not qualify for coverage under federal health care programs.

Deponit is a skin patch used to prevent angina. Hyoscyamine Sulfate Extended Release treats various stomach, intestinal and urinary tract disorders. Neither product is now on the market, according to the DOJ statement.

Both cases began as whistleblower lawsuits filed under the False Claims Act.

Ted Olson Honored By Time Magazine

Theodore Olson of Gibson, Dunn & Crutcher can now count himself in the company of President Barack Obama, Justice Sonia Sotomayor, Conan O'Brien, Jet Li and Lady Gaga. All of those people, including Olson, have been named to Time magazine's annual list of 100 people who "most affect our world."

The list recognizes game changers in four categories: leaders, heroes, artists, and thinkers. Olson was named to the latter category along with David Boies, who is working with Olson on the constitutional challenge to a California law that bans marriage between same-sex couples.

The write-up, which was penned by Joel Klein, the chancellor of the New York City public-school system, begins, “David Boies and Ted Olson, both 69, are lions of America's legal establishment — Boies, a darling of the left; Olson, the right. Time and again they've clashed, most famously in Bush v. Gore, in 2000. Olson won that battle, and given how high the stakes were, the two lawyers might be forgiven any lasting bitterness. Instead, they've become great friends.”

Klein’s article, available here, goes on to note Olson and Boies’ work on the Prop 8 case, which the article calls an “extraordinary case” that could further their “long-shot mission” to secure the right to marry for gay and lesbian couples across the country.

Olson said in an interview this morning that he first heard he was to be honored by Time in February. “I have no idea how this came together. . . . I’m doubtful that I deserve to be on the list, but I am happy that I am.”

He said he did not speak with Klein for the article, but that he has known him for years and has “a great respect for the man.” While serving as the Justice Department’s antitrust chief in 1999, Klein hired Boies to handle the trial of landmark antitrust charges against Microsoft Corp.

The list includes some people who Olson said he hasn’t heard of, particularly in the artistic world. But he said he is looking forward to reading about them in the issue. (He hasn’t read all of it yet.) Of those he has heard of, Olson said he was particularly pleased to join a list that included Obama, Sotomayor, and Prince. “It’s pretty cool,” Olson said.

On Tuesday, Time will host a celebratory gala at the Lincoln Center in Manhattan, which Olson said should be interesting. “There is one artist on the list, Banksy, who hasn’t revealed his identity. He wears a paper bag on his head in the magazine. I’ll be interested to see if he does the same thing at the gala.”

The Prop 8 case, Olson said, has been set for closing arguments on June 16. Olson said much of his and Boies’ time has been spent preparing for that. Olson was also recently hired to lead the Republican National Committee’s challenge to bans on "soft money" donations to political parties. That case is a follow up to Olson’s Supreme Court win in Citizens United v. Federal Election Commission.

Olson said the Prop 8 case and the soft-money challenge have kept him busy enough that he hasn’t had a chance to talk to Boies about the Time honor. “But I guess I’ll be seeing him on Tuesday,” Olson said.

Federal Prosecutors Retreat from Life Sentence Recommendation in Rubashkin Case

Federal prosecutors in Iowa have backed off their push for a life sentence for Sholom Rubashkin, the slaughterhouse manager who was convicted last year on charges that included money laundering and bank fraud.

The 25-year sentence the prosecution recommended this week, during Rubashkin’s sentencing hearing in the U.S. District Court for the Northern District of Iowa, is tantamount to a life sentence, a lawyer for Rubashkin said today.

“It’s a step in the right direction but for all practical purposes it’s still a life request,” said Grefe & Sidney partner Guy Cook of Des Moines. Cook, a lead trial attorney for Rubashkin, 51, said no more than a six year sentence is just punishment. Rubaskin, convicted of a non-violent crime, is a first-time offender.

More than 20 witnesses testified in support of Rubashkin over the two-day hearing, which wrapped up yesterday. Chief Judge Linda Reade, who presided over Rubashkin’s trial last October and November, is expected to announce sentencing May 27. Click here and here for earlier coverage of the case from The National Law Journal.

Rubashkin, jailed since the jury’s guilty verdicts in November on 86 counts of financial and related charges, appeared in court Thursday in orange jail garb, his wrists and legs shackled, Cook said. Reade allowed the handcuffs to be removed.

“I guess this is the time to apologize to my community, and especially to my dear wife and children, for the harm I have caused them,” Rubashkin said in court, according to The Des Moines Register. “There are no words to express the grief that I feel and have caused them.”

Cook said there were hundreds of supporters, many of them Orthodox Jews, at the courthouse over the past couple of days. Court officials set up an overflow courtroom with a closed-circuit television to accommodate the crowd of court observers.