The BLT: The Blog of Legal Times

Judge Blocks Virginia AG in Climate Inquiry

A state judge ruled today that Virginia Attorney General Ken Cuccinelli did not give a sufficient reason when he tried to subpoena records regarding a climate researcher.

Cuccinelli, a Republican, said he wanted the records in order to investigate whether the researcher, Michael Mann, made false claims in connection with state grant funding. Cuccinelli is a skeptic of human causes of global warming, an area that Mann has studied at the University of Virginia and elsewhere. Mann is now a professor at Pennsylvania State University.

In a six-page letter to the parties, Judge Paul Peatross Jr. wrote that the Attorney General’s Office failed to show that it had “reason to believe” that fraud occurred.

“In order for the Attorney General to have ‘reason to believe,’ he has to have some objective basis to issue a civil investigative demand, which the Court has power to review,” Peatross wrote. He added that Cuccinelli’s office must state specifically what it believes was “misleading, false or fraudulent” in Mann’s conduct.

Peatross wrote, however, that Cuccinelli’s office does have authority to investigate the handling of state grant money, so the attorney general could make another request with more detail.

A Cuccinelli spokesman did not immediately respond to a request for comment. A message left with a University of Virginia spokeswoman was not immediately returned. Chuck Rosenberg, a Hogan Lovells partner representing the university and a former U.S. attorney for the Eastern District of Virginia, declined to comment.

UPDATE (1:44 p.m.): In a statement, Cuccinelli said he would issue a new request for information that conforms to Peatross' ruling. "We will also take time to fully examine the decision and all of the available options before deciding whether or not to also appeal aspects of the ruling," Cuccinelli said. He said he was pleased that the judge ruled in favor of his office having the authority to conduct its investigation.

UPDATE (4:33 p.m.): A spokeswoman at the University of Virginia released a statement saying officials there are also pleased with the ruling. "In reaching its conclusion, the court made several important findings: that the attorney general failed to sufficiently support any allegation that Dr. Mann engaged in fraudulent conduct; that academic freedom should inform the propriety of an inquiry into the conduct of University faculty; and that the scope of any future inquiries by the attorney general would have to be substantially more narrow than these" requests, the statement said.

LeBron James's Lawyers Want Judge to Dismiss Suit in D.C.

Updated 3:20 p.m.

The Washington lawyer who claims he is the biological father of basketball star LeBron James is delusional and only seeking fame, James's lawyers said today in court papers urging a federal judge to dismiss the suit.

Leicester Bryce Stovell said in the complaint, filed in June in Washington federal district court, that he has been trying to determine paternity since 2007. DNA test results were falsified, according to Stovell, a solo practitioner who is pro se in the case. The suit was filed against James and his mother, Gloria James, who had LeBron when she was 16.

James’s lawyers, including John Burlingame, Washington managing partner of Squires, Sanders & Dempsey, said today in court papers that Stovell’s suit “comes nowhere close to articulating any facts that, if true, would show how the test was falsified, who falsified it, or that Gloria or LeBron James had anything to do with the alleged falsification.”

Attorneys for James say Stovell’s “fanciful hope for celebrity cannot be brought to life through a court of law.” Click here for a copy of the motion to dismiss and here for earlier coverage of the suit in the U.S. District Court for the District of Columbia.

Burlingame writes in court papers: “Stovell’s claims for millions of dollars from his putative son and Gloria James are based upon rank speculation—that a man who claims that as a twenty-nine year old lawyer he got a 15-year old girl pregnant during a one-night stand and who never contributed a penny in child support would earn millions in commercial endorsements by crawling out of the wood-work after the child he never gave a thought to became an NBA star.”

Stovell, in an e-mail, declined to comment on the defense motion to dismiss.

Stovell said in the suit, pending before Judge Colleen Kollar-Kotelly, that a "comprehensive, sophisticated and well-funded effort” has been ongoing for some time “to frustrate identification of his real father, and that there is a likelihood that the father in question is me.”

James's lawyers said that “Stovell may truly believe that he is the father of LeBron James, even though a DNA test has told him otherwise. But his delusions do not give rise to a cause of action against either Gloria or LeBron James.”

This Week in The National Law Journal

Five years after Hurricane Katrina devastated the city of New Orleans and much of the Gulf Coast, lawyers in the Crescent City are still feeling the effects of the storm. Leigh Jones reports that many of the thousands of attorneys who saw their practices upended by Katrina maintain a powerful devotion to New Orleans.

Amanda Bronstad takes a look at the $20 billion compensation fund for victims of the Deepwater Horizon oil spill and whether it will deter litigation. Hint: Probably not.

Tony Mauro and Carrie Levine teamed up to examine the video game industry's push to win the hearts and minds of state attorneys general in the run-up to a major Supreme Court case testing the constitutionality of limits on the sale of violent video games. Representatives of the video game industry, with $10 billion in annual sales nationwide, have been in contact with state AGs to persuade them to support the industry by filing a brief in the case, set for argument on Nov. 2. At issue: whether California's 2005 law banning sale or rental of violent video games to minors violated the First Amendment.

This week's edition of The National Law Journal also includes a special report on how small and midsize firms weathered the economic storm. The report found that rough economic winds battered small and midsize firm revenues during 2009 — though cuts in expenses helped those firms eke out small increases in profits.

In Washington, Jeff Jeffrey has a story about McDermott Will & Emery's $24 million suit against its client Eastman Kodak Co. over what the firm says are unpaid contingency fees. McDermott represented Kodak on a long-running tax matter that resulted in Kodak receiving a $581 million tax refund related to an unsuccessful business venture the company had made.

In Inadmissible, Clemens can't talk, Walton can; long line for NBC/Comcast merger; Nickles' assistant AG faces disciplinary hearings; assigned seats in Metro crash hearing; law student challenges accrediting system; a class in upfront flat fees; and shell-shocked egg lobbyists wait and see in this week's column..

As Schaumber Leaves, NLRB Drops From Five To Four Members

The National Labor Relations Board, plagued by years of vacancies, enjoyed just a brief two months at full strength this summer before losing another member with the departure last week of Peter Schaumber.

Schaumber’s second term on the board expired Aug. 27. The board’s membership now drops from five to four: three Democrats and one Republican.

Schaumber and Board Chair Wilma Liebman were the only members for 27 months—a situation which led to numerous lawsuits challenging whether two members were a quorum for deciding labor cases. The Supreme Court in New Process Steel v. NLRB ruled in June that federal labor law required a quorum of three. That decision potentially put at risk roughly 600 rulings by the two-member board.

Schaumber, nominated by President George W. Bush, first took his seat on the board in December 2002. He served as chairman from April 2008 until January 2009. Schaumber began his legal career as an assistant corporation counsel for the District of Columbia. He subsequently was appointed assistant U.S. attorney for the District of Columbia and served in that office's Criminal and Civil divisions. After leaving that office, he became senior trial attorney and associate director of a law department division in the Office of the Comptroller of the Currency.

Schaumber said in a statement that it was his “good fortune” to have served with Liebman during the 27-months when they were the entire board.

“Our shared commitment to collaboration and the agency’s mission enabled us to process scores of cases to resolution, despite our ideological differences,” he said. “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future boards.”

During a farewell ceremony last week, Liebman called Schaumber’s chairmanship “his finest hour.”

Schaumber, a graduate of Georgetown University Law Center, said he has no immediate plans. “I look forward to taking time off to spend with family, then returning to work in traditional labor law, government affairs and the legislative arena.”

Besides Liebman, a Clinton appointee, the board now consists of three appointees by President Barack Obama: Democrat Craig Becker, a recess appointee who can serve until December 2011; Democrat Mark Pearce, serving until August 2013, and Republican Brian Hayes, serving until December 2012.

The Morning Wrap

BP Report Finds Evidence of Wrongdoing: An internal investigation conducted by BP has found that the company made mistakes when finishing the oil well that went on to cause the worst natural disaster in American history when it exploded. Among those mistakes Bloomberg reports, was misreading pressure data that indicated a blowout was imminent. In a separate story, The New York Times explores the risks that arise out of the oil industry's push to drill deeper. Also, The Wall Street Journal examines the legal strategies that are emerging in the BP hearings.

Environmental Groups Losing Ground: The Washington Post reports that a year after environmental groups reached the peak of their influence, many are finding that their opponents are pressing their advantage and trying to undo the Obama administration's climate efforts. At two events last week in Wisconsin, environmental groups seemed to be trying two strategies: defiance and pleading for sympathy. Neither event drew enough people to fill a high school gym.

Europe's Economic Optimism: Bloomberg reports that European confidence in the economic outlook improved to the highest level in more than two years in August after surging exports helped the economy expand at the fastest pace in four years in the second quarter.

Microsoft Co-Founder Sues 11 Companies for Patent Infringement: The Recorder reports via Law.com that billionaire Paul Allen, co-founder of Microsoft Corp., filed suit Friday in federal court against 11 Internet search and e-commerce companies, including Apple Inc., Google Inc. and Facebook Inc., alleging that they're using technology developed at his now-shuttered Palo Alto, Calif., laboratory, Interval Research Corp. The suit was filed by Allen's company, Interval Licensing, in U.S. District Court in the Western District of Washington. Interval Licensing is represented by Susman Godfrey and Heim Payne & Chorush.

DOJ Picks up Support in Prosecution of Former Congressman

A watchdog group in Washington is supporting the U.S. Justice Department in the prosecution of former Rep. Richard Renzi (R-Ariz.), charged in an extortion case in Arizona that is raising constitutional issues of separation of powers.

Citizens for Responsibility and Ethics in Washington wants to file a friend-of-the-court appellate court brief backing the government in its effort to keep the prosecution of Renzi moving forward in the U.S. District Court for the District of Arizona. The prosecution has stalled—the case is pending in the U.S. Court of Appeals for the 9th Circuit—as the government and Renzi’s defense lawyers appeal trial court rulings.

DOJ is challenging the dismissal of wiretap evidence stemming from taped phone calls that a judge said violate the attorney-client privilege. Renzi’s lawyers, who have the support of lawyers for the U.S. House of Representatives, want the indictment dismissed on the ground that prosecutors impermissibly used protected legislative activity in building the case.

CREW focuses its proposed amicus brief—a copy was filed Aug. 25 for the court’s review—on the issue of protected legislative activity. The speech or debate clause of the Constitution protects members of Congress from prosecution of legislative activity—including, for instance, bills that have been introduced.

Renzi’s lawyers, according to CREW, oppose the filing of the proposed amicus brief. The Justice Department has agreed to it. Steptoe & Johnson partners Reid Weingarten and Brian Heberlig, among the lawyers who represent Renzi, were not immediately reached for comment today.

Central in the Renzi case is the extent to which activity associated with the preparation of legislation—for instance, where a congressman discusses potential future legislation with a citizen—is protected under the speech or debate clause. The extortion case against Renzi centers on his role in a land deal that required congressional approval.

“Congressman Richard Renzi is asking this Court to broaden the protection of the Speech or Debate Claim well beyond the parameters set by the Supreme Court,” CREW director Melanie Sloan said in the amicus brief. “In no case has the Court ever treated the Clause as protecting all conduct relating to the legislative process.”

Sloan said in court papers the speech or debate clause “must be interpreted narrowly to prevent members of Congress from being rendered virtually immune from a wide range of crimes simply because the acts in question were peripherally to their holding office.” The clause was never meant to give “blanket protection,” Sloan said.

In June, Renzi’s lawyers said in appellate court papers that the government “used constitutionally protected evidence to shape every aspect of its investigation against Congressman Renzi.” The attorneys said the government secretly questioned Renzi’s aides about legislative activity and that aides stole documents from Renzi’s office.

Earlier this month, federal prosecutors defended the case against Renzi. DOJ lawyers said Renzi’s attorneys have a “fundamental misunderstanding” of the protections of the speech or debate clause. Acts of extortion “are not legislative acts protected by the Clause,” prosecutors said in the Justice Department appellate brief, signed by Andrew Levchuk, a Public Integrity Section trial attorney.

Hogan Lovells, POM Wonderful May Avoid Trial In Fee Dispute

According to court records, Hogan Lovells and juice maker POM Wonderful are trying to work out their fee dispute without going ahead with a trial. In D.C. Superior Court filings, POM has said it is engaged in “intensive discussions” with Hogan to resolve their dispute over $666,000 in allegedly unpaid legal fees.

Hogan’s suit against POM stems from work the firm performed on a 2009 Federal Trade Commission inquiry. Hogan alleges in its Feb 22 complaint that POM has failed to pay for that work. POM has fired back at the firm in court filings, attacking Hogan’s work and calling its fees "exorbitant."

POM has also tried to keep the identity of the agency looking into the company from being disclosed. After The National Law Journal obtained court records that identified the FTC as the agency and tried to publish that information, POM obtained a temporary restraining order against the newspaper, barring it from publishing the agency's name.

POM asked Judge Judith Bartnoff, who is presiding over the case, to drop the TRO on Aug. 2 after the NLJ filed an emergency appeal with the D.C. Court of Appeals.

On Aug. 6, POM’s lawyer Barry Coburn of Coburn & Coffman asked for a two-week extension to the deadline for filing an answer to Hogan’s complaint, citing ongoing discussions between Hogan and POM about how to resolve the case.

Coburn wrote in that request that “the possibility of mediation is actively being discussed” and that his client has filed a formal request to move the case into arbitration.

Bartnoff has also agreed to postpone a scheduling hearing twice as those discussions continue. The first was to be held on Aug. 20, but because Bartnoff granted Coburn’s request for a two-week extension to file his answer, she pushed back the hearing date until today.

Bartnoff then agreed to postpone the hearing again because Coburn had a prior engagement in New Jersey and wouldn't be available today. The hearing has been rescheduled for Sept. 24.

So far, Hogan has consented to POM’s requests to postpone the hearings and the date by which POM would file its answer to Hogan’s complaint, court records say.

But lawyers in the case are staying mum on its status.

Both Randell Ogg, a Washington-based solo practitioner representing Hogan in the POM case, and the firm’s general counsel George Mayo, declined to comment when reached by phone today. Coburn also declined to comment.

Federal Circuit Rules No Link between Autism and Vaccine

"We are obviously extremely disappointed. Michelle has a very strong case. The facts in her medical records speak for themselves. Our lawyers are currently reviewing the decision to see what legal options are available." The U.S. Court of Appeals for the Federal Circuit has just upheld lower court findings that reject a causal connection between childhood vaccines and the onset of autism.

The ruling came in Cedillo v. Secretary of Health and Human Services, which was the first of a series of test cases heard by special masters for the U.S. Court of Federal Claims in 2007. The claims court picked several such cases to test different theories of causation advanced in the roughly 5,000 cases alleging a link to autism filed under the National Childhood Vaccine Injury Act of 1986.

"We see no legal error in the standards applied by the special master" in determining there was no causal connection between the mercury-based preservative in the measles-mumps-rubella vaccine administered to Michelle Cedillo in 1995 and the autism and retardation symptoms she began to show afterward.The claims court upheld the special master's findings last year, and the federal circuit decision today affirmed that ruling.

As we wrote in 2007, the case of Michelle Cedillo was like many that have resulted in vaccine claims, with healthy babies changing drastically after vaccines were administered. "Words alone cannot explain the trauma of watching your only child's health deteriorate to such a degree before your eyes," her mother Theresa told Legal Times before the court proceeding began.

Judge Timothy Dyk, writing for a three-judge federal circuit panel, said that "Michelle's development was indeed very abnormal," but not right after the vaccine was administered. Much of the ruling deals with the scientific evidence offered by both sides in the lengthy proceeding before the special master. Dyk said the government's failure to seek documentation of one expert's findings was "troubling," but "does not justify reversal." 

Joined by Judges Pauline Newman and Richard Linn, Dyk concluded that the special master's report in the Cedillo case was "rationally supported by the evidence, well-articulated, and reasonable." In May, the federal circuit issued a similar ruling in another of the autism test cases, Hazlehurst v. HHS.

UPDATE: Theresa Cedillo, the mother of the plaintiff in the case decided today sent this comment on the ruling:  "We are obviously extremely disappointed. Michelle has a very strong case. The facts in her medical records speak for themselves. Our lawyers are currently reviewing the decision to see what legal options are available."

Groups Oppose PAC Request to Raise Unlimited Contributions

Updated

The Campaign Legal Center and Democracy 21 are opposing a political action committee's request for a Federal Election Commission advisory opinion that would let it raise unlimited contributions for independent expenditures.

The National Defense PAC submitted the request to the FEC earlier this month. The agency must rule by Oct. 15. In a letter, Dan Backer, counsel and assistant treasurer to the PAC, said the National Defense PAC was seeking to confirm that it would be lawful for it to accept unlimited contributions to offset administrative costs and independent expenditures even though it makes direct contributions to candidates. The FEC has allowed groups such as the Club for Growth, which make independent expenditures, to accept unlimited contributions.

In the request, Backer said the Supreme Court's ruling in Citizens United v. FEC and a case from the U.S. Court of Appeals for the D.C. Circuit, SpeechNOW v. FEC grant "greater protection and range of opportunities." On its web page, the National Defense PAC says it is "dedicated to supporting the election of balanced-budget-committed Military Veterans to the U. S. Congress."

Backer said his clients believe "human beings should have at least as strong a set of political rights as corporations and unions currently enjoy in the wake of Citizens United." The PAC would still be subject to contribution limits on money used for direct contributions to candidates, he said.

Paul Ryan, a lawyer for the Campaign Legal Center, said the Supreme Court explicitly ruled that PACs such as the National Defense PAC are subject to contribution limits in a 1981 case, California Medical Association v. FEC, and the more recent decisions don't change that. "I certainly hope they do what the law requires them to do" and reject the request, Ryan said.

The Campaign Legal Center and Democracy 21 filed joint comments with the FEC today.

Sotomayor on Growing Up Stubborn

Justice Sonia Sotomayor is stepping out more in public in her sophomore year on the Supreme Court. She spoke in Denver Thursday, one of several talks she has given this summer after declining most invitations last term. Her Denver talk was co-sponsored by the Colorado Campaign for Inclusive Excellence. She was on her way to the U.S. Court of Appeals for the 10th Circuit's conference being held in Colorado Springs today and tomorrow.

According to this Denver Post article, Sotomayor gave some rare glimpses into her childhood as well as her first year on the high court. When she was a toddler, she said she had a stubborn streak that has lasted all her life. She said she would puff out her cheeks when her mother tried to feed her, and when her mother poked her cheeks, she would resist even more.

"I keep getting knocked down and I keep getting up," Sotomayor told her audience at the University of Denver's Sturm College of Law. She recalled that when President Bill Clinton first nominated her to the U.S. Court of Appeals for the 2nd Circuit, she was reluctant to leave the trial bench. But when she learned there was opposition to her nomination, her stubbornness kicked in."If they hadn't fought so hard, I would have given up earlier," she said. "I didn't want to let them beat me."

She also indicated that she viewed some of the criticism of her nomination to the Supreme Court as related to her ethnic background "People kept accusing me of not being smart enough. Can anyone explain other than I am Hispanic why that would be?"

Her only comment about cases she has participated in came when an audience member asked if the Court was chipping away at Miranda rights in a case last term in which Sotomayor dissented -- a reference to Berghuis v. Thompkins, decided June 1. The Court ruled 5-4 that a suspect must unambiguously invoke his or her Miranda right to remain silent before police can be required to stop questioning.

According to the Denver Post account, Sotomayor replied,"I do think I was right. I think the (majority) were wrong. But I don't think they did it with intent to erode Miranda." She recalled a bit of advice her predecessor David Souter had given her: "This job will be infinitely easier for you if you believe the people you work with are acting in good faith."