The BLT: The Blog of Legal Times

DOJ Wants Full D.C. Circuit To Hear Retaliation Claim

Updated 12:40 p.m.

A businessman who has fought in Washington for two decades to hold the government responsible for its botched fraud prosecution of him will have to wait a little longer for trial.

The U.S. Justice Department this week asked a federal appeals court (PDF) to rehear the dispute in the hope the full court will overturn a panel decision in July that went against the government.

The U.S. Court of Appeals for the D.C. Circuit ruled the businessman, William Moore Jr. of Texas, should be allowed to have a trial on the merits of his complaint. Moore’s case has been up and down from the trial court to the appeals court since he filed suit in 1991. Part of the case reached the U.S. Supreme Court.

Along the way, the heart of Moore’s case—that the government brought criminal charges against him in retaliation for speaking out about U.S. Postal Service policy—has survived appellate rulings. Indicted in 1988, Moore was acquitted in Washington federal district court during a bench trial.

In July, one judge on the appeals court expressed frustration that Moore’s dispute has dragged on.

“It has taken twenty-five years, a criminal trial, eleven appellate judges as well as all participating members of the United States Supreme Court—not one of whom has rejected his claim as a matter of law—to get to the point that a jury will finally hear and decide if government officials engaged in pay-back because the plaintiff sought to do business with the government,” Circuit Judge Karen LeCraft Henderson said in the court’s opinion. “To say that this has not been the government’s finest hour is a colossal, and lamentable, understatement.”

Patton Boggs Attorney Leaving Firm to Join Charter Communications

A Patton Boggs partner in Washington will assume a top leadership role at a Missouri-based cable company called Charter Communications Inc. early next month, the company announced Monday.

Robert Quicksilver, who is in the firm's technology and communications practice, will serve as Charter's executive vice president and chief administrative officer, starting Sept. 6. He will direct the company's government affairs, legal, advertising sales and human resources operations.

"Bob brings to Charter a rare combination of law, policy and executive-level media experience," Charter President and Chief Executive Officer Mike Lovett said in a statement. "His broad range of industry knowledge and strong leadership skills complement Charter's executive team. Bob will play a key role in helping Charter continue to build on its recent successes."

Quicksilver didn’t immediately respond to a request for comment.

He joined Patton Boggs in November after working for several media companies.

Before coming to the firm, Quicksilver was the chief content officer of TidalTV Inc., which provides targeted video advertising. He also was a consultant for Yahoo! Media Group and other media businesses.

From 1999 to 2005, Quicksilver was the network distribution president for Fox Broadcasting Co. In that position, he managed the company’s business relationships with its broadcast affiliates and lobbied Congress and the Federal Communications Commission on broadcast issues. Quicksilver also spent a stint as the interim leader of the government affairs office for Fox parent company News Corp., working on cable, satellite, broadcast and Internet matters.

Prior to his time at News Corp., he was vice president and general counsel of Sinclair Broadcast Group and River City Broadcasting, both of which own local broadcast stations.

The Morning Wrap

Updated at 12:25 p.m.

Punitive Damages: The New Orleans federal judge overseeing multidistrict litigation stemming from the April 2010 oil spill in the Gulf of Mexico has ruled that private plaintiffs can seek punitive damages against BP and other defendants for economic and property loss. Am Law Litigation Daily has the story.

'Horrible' Case: A District of Columbia Superior Court jury couldn't reach a unanimous verdict on a murder charge, but the Washington Post reports that the trial judge sentenced the defendant to 74 1/2 years for his other convictions in the case. The judge said he had "no doubt" the defendant committed the murder and that it was one of the most horrible cases he had heard.

Lost Tax Case: Bloomberg reports that the U.S. Tax Court has rejected the I.R.S.' bid to collect $3.9 million from the estate of the former Enron chief Kenneth L. Lay and his wife.

Family Feud: The Chicago Tribune has the story of two adult children who, represented by their attorney father, unsuccessfully tried to sue their mother for "bad" parenting. An Illinois appeals court dismissed the complaint, which included allegations that the mother failed to include money in one child's birthday card and forced one child to wear a seatbelt in the car.

No Sanctions: The Miami Herald reports that an appeals court threw out sanctions imposed on two prosecutors accused of ethical violation in their handling of a case involving a Miami Beach doctor acquitted of peddling pain killers.

A previous version of this article incorrectly sourced the article on the I.R.S. case in U.S. Tax Court.

In Securities Class Action, Washington Post Co. Defends Kaplan Reporting

The Washington Post Company wants a Washington federal judge to dismiss a securities class action filed by dissatisfied investors, arguing that the company accurately reported the financial health of its for-profit educational services arm, Kaplan Inc., before its stock value dropped.

A group of investors sued the Post Co., in U.S. District Court for the District of Columbia in October, accusing company officers of misleading investors by releasing false information on Kaplan’s health. The value of the company's stock dropped after the U.S. Department of Education released new data in August 2010 indicating Kaplan could be at risk of losing its federal financial aid.

The Iron Workers Local No. 25 Pension Fund, which held more than 2,000 shares of the company’s stock at the time and claimed losses of about $245,000, is lead plaintiff. The class is being represented by a team from Robbins Gellar Rudman & Dowd. Attorneys there could not immediately be reached.

The Post Co. is being represented by Williams & Connolly’s Kevin Baine and Steven Farina. Neither could immediately be reached on Monday.

In the Post Co.’s motion to dismiss (PDF) filed Friday, the company said it always disclosed in its securities filings that Kaplan “operates in a highly regulated environment… and that changes in government regulations could have a significant negative impact on its operating results.”

The Education Department’s report hit for-profit schools hard across-the-board, the Post Co. argues, noting that its stock value later returned to pre-report levels. The company is claiming that the complaint lacks any specific allegations of deliberate fraud on the part of the Post Co. or its officers, and that any financial losses were the result of changes in the regulatory environment surrounding Kaplan and other similar companies.

“In short, there is no securities fraud in this case—only a plaintiff seeking to secure a windfall based on a temporary drop in stock price that cannot be pinned to anything approaching fraud by any of these defendants,” the company argues.

The case is before U.S. District Judge Paul Friedman.

Akin Gump Signs Pharma Giant Novartis

Akin Gump Strauss Hauer & Feld last week notified Congress that it is lobbying for a Swiss pharmaceutical giant.

Basel-based Novartis hired the firm to "educate members of [C]ongress and the administration regarding the importance of vaccines," according to a lobbying disclosure filing. Akin Gump's Kris Ekdahl, Francine Friedman and Scott Parven are lobbying on behalf of the company, which manufactures pharmaceuticals and other health care products.

An Akin Gump spokeswoman didn’t have an immediate comment. A Novartis spokeswoman didn’t immediately respond to requests for comment.

Novartis spent $3.6 million on lobbying Congress and federal agencies during the first half of this year, according to congressional records. The company used an in-house lobbying team and lobbyists from a dozen firms, including Williams & Jensen and Ice Miller Strategies. During the second quarter of 2011, the company disclosed that it lobbied on a litany of bills, including measures related to Medicare, Medicaid, drug safety and patent reform.

The company says it spent $9.1 billion last year on research and development. The net income for Novartis in 2010 was $10 billion.

The vaccines and diagnostics section of Novartis has more than 20 marketed products, including pharmaceuticals that provide protection from influenza and meningitis. Another 15 products are in clinical development.

Akin Gump advocated for several heath care companies and organizations during the first half of 2011, according to lobbying disclosures. Drug company Prasco and the Pharmaceutical Research and Manufacturers of America are among the firm’s lobbying clients.

FBI Agent's Lawyers Want D.C. Circuit Ruling Left Alone

Lawyers representing an FBI agent in a retaliation suit against the agency have asked a federal appeals court in Washington to keep intact its ruling that sent the case back to the trial court for further proceedings.

The plaintiff, Wilfred Rattigan, who’d won a $300,000 judgment in Washington federal district court on claims that the FBI retaliated against him, said the appellate ruling in the case, while flawed, should not be overturned.

A divided U.S. Court of Appeals for the D.C. Circuit in June remanded the case for further proceedings, vacating the judgment but not blocking a second trial.

In his complaint, Rattigan, a former legal attaché in Saudi Arabia, alleged the FBI retaliated against him for his complaints about race and national origin discrimination. Rattigan, a Jamaican-born Muslim, said supervisors created a report about him and sent it to the agency’s security division to investigate his security clearance.

Rattigan’s lawyers, Jonathan Moore of New York’s Beldock Levine & Hoffman and James Klimaski & Associates, in Washington, said in court papers (PDF) filed Aug. 26 that the U.S. Justice Department has taken an “extreme” position in the litigation.

Under the DOJ scheme, Rattigan’s attorneys said, an executive branch employee at any level “would be free to discriminate and retaliate against their colleagues as long as they characterize their discrimination or retaliation as related to a security clearance.”

“Vast categories of people would lose their right to be free from discrimination and retaliation in the workplace,” Rattigan’s lawyers said.

D.C. 'Safe Surrender' Brings in 764 with Outstanding Warrants

Updated at 3:36 p.m.

Hurricane warnings cut short the final day of the District of Columbia Superior Court's Safe Surrender program, but participation still topped turnout from the last time the court sponsored the program in 2007.

Over the course of three Saturdays in August, court officials reported that 673 people with outstanding warrants for nonviolent felonies and misdemeanors turned themselves in, with nearly 99 percent going home the same day. Including weekday surrenders, 764 people have voluntarily surrendered this month.

On Saturday, the court received 268 surrenders, despite closing early around noon in anticipation of Hurricane Irene hitting the region.

Superior Court Chief Judge Lee Satterfield said staff and partner agencies are still calculating the cost of running the program this month, but added that he was pleased with the turnout and high level of public interest.

Satterfield said he doesn't expect the court will host the program again in the immediate future, though, since "our view is that people should turn themselves in immediately if they have a bench warrant outstanding."

"It's an event that costs - although its not unreasonable given the return, in my view - and people are responsible for turning themselves in and being held accountable," he said.

The first time the program took place in October 2007, 530 people participated. The court takes voluntary surrenders year-round, but the program was created to make a dent in the number of outstanding warrants and also give fugitives a safe place to turn themselves in.

About 16,000 outstanding bench warrants remain, according to the court’s most recent list posted online Friday.

The program was a partnership between the Court Services and Offender Supervision Agency, Criminal Justice Coordinating Council, D.C. Public Defender Service, D.C. Superior Court, Metropolitan Police Department, Office of Attorney General, Pretrial Services Agency, U.S. Attorney’s Office and the U.S. Marshals Service.

A previous version of this article incorrectly stated the number of outstanding warrants.

This Week in The National Law Journal

Cereal Killers: Jenna Greene reports on the four federal agencies trying to curb childhood obesity. The agencies are asking manufacturers of "unhealthy" food and drinks to voluntarily cease all advertising efforts directed at children.

Stock Scam Ensnares Attorneys: Federal prosecutors in Washington allege that a California businessmen used lawyers to perform nonlegal services for illegal purposes. Mike Scarcella reports.

Lobbying for Reform: Washington lobbyists are gearing up to make their cases to Congress this fall for lobbying reform. Andrew Ramonas reports.

Making Their Mark in D.C.: A crop of law firms specializing in trademark filings has popped up in the Washington area during the past few years, and they've quickly become important players in the field. Matthew Huisman reports.

The Morning Wrap

Hurricane Irene: Cities across the East Coast are cleaning up Monday following former hurricane Irene, The Washington Post reports. The storm caused at least two dozen deaths.

Disclosure Issues: A lawyer for a Kansas man accused of taking part in the 1994 Rwandan genocide says the U.S. Justice Department dropped its case against her client after she and other members of his legal team said they would request sanctions against prosecutors for failing to disclose information, The Associated Press reports. Prosecutors previously had acknowledged that they accidentally withheld information in the case against Lazare Kobagaya.

Judge's Call: A federal judge in San Francisco on Friday ruled that Barry Bonds’ obstruction of justice conviction will stand, the San Francisco Chronicle reports. The former baseball slugger also will not get a new trial on that count, the judge ruled.

Loughner Ruling: Officials can medicate Jared Loughner against his will in an effort to make him mentally competent to stand trial, a federal judge ruled Friday, The Arizona Republic reports. Loughner in May was found mentally incompetent to stand trial on charges stemming from the Tucson shooting in January.

Outside Investors: Jacoby & Meyers took a shot at a New York court rule prohibiting firms from allowing outside investments, the New York Law Journal reports. "The new realities of the global legal marketplace should be recognized and Rule 5.4's absolute bar of non-lawyer investments in law firms should be struck down as unconstitutional," Jacoby & Meyers said in a memorandum filed Friday with the U.S. District Court for the Southern District of New York. The memorandum was a response to a motion filed this summer by New York Attorney General Eric Schneiderman, who is asking the court to throw out a suit the firm brought to bring down the rule.

Srinivasan Leaving O'Melveny to Become Deputy Solicitor General

O’Melveny & Myers partner Sri Srinivasan has been named principal deputy Solicitor General, the firm said on Friday.

Srinivasan, the chair of O’Melveny’s appellate and Supreme Court practice, was appointed to replace Neal Katyal, who will be joining Hogan Lovells.

O’Melveny partner Walter Dellinger talked about one of the first times he saw Srinivasan argue a case.

“I knew from that point on, he was going to be a truly great Supreme Court advocate and has indeed become one,” Dellinger said. “One of the things that the firm has prided itself on are the people who come into and out of government service.”

Srinivasan has argued 17 cases before the Supreme Court, chalking up wins in Hertz Corp. v. Friend and Skilling v. US during the 2009 term. Scotusblog first reported the news.

“I am very pleased Sri will be returning to the Solicitor General’s office in this important role," Solicitor General Donald B. Verrilli Jr. said in a statement. "He is one of the country’s leading advocates before the Supreme Court, and will bring to his new position both a deep knowledge of the Supreme Court and of the office and its responsibilities and traditions.”  

Updated 4:56 p.m.

Photo by Diego Radzinschi