The BLT: The Blog of Legal Times

Media Lawyers: The Onion Is Likely In the Clear

The satirical newspaper The Onion caused some confusion on Thursday when its messages on the service Twitter described gunfire in the U.S. Capitol building, but media lawyers said today The Onion probably doesn’t have to worry about any legal fallout.

The Onion is well established as satire, the lawyers said, and even though some readers and commentators have criticized the tweets for not being clear or for lacking taste, the First Amendment would likely preclude any claims against the outlet.

“If there’s liability, perhaps it’s just for not being funny enough,” said Robert Corn-Revere, a partner at Davis Wright Tremaine in Washington.

The tweets promoted a story on The Onion’s website about Congress taking a group of schoolchildren hostage. Some tweets linked to the story, but others simply described gunfire or children taken hostage. Any confusion could be compounded when a reader passes on a tweet to his own followers via a “retweet,” because the original source of the information may not be immediately clear.

It was the retweets that caused the U.S. Capitol Police to investigate the matter briefly on Thursday. A police spokeswoman, Sgt. Kimberly Schneider, wrote in an e-mail today that the inquiry ended quickly after police confirmed the origin of the reports. Schneider wrote that police did not investigate The Onion itself, and so far there have been no reports of any civil claims filed against the newspaper.

Cahill Gordon & Reindel partner Floyd Abrams said it’s difficult to think of any legal consequences.

“If their publication had resulted in cars crashing en route to the supposed place where the kidnappings allegedly occurred, or collapse of parents of children, it’s conceivable that one could think about a civil claim,” Abrams said. One claim, for example, might be intentional infliction of emotional injury, but even such a case “would run into serious First Amendment challenges,” he said.

Corn-Revere said there were civil claims filed after Orson Welles’ 1938 radio broadcast of “The War of the Worlds,” which caused some listeners to believe there was an alien invasion in progress. Those claims failed, he said. “I don’t know how far a satirical publication has to go to remind people that this is satire,” he said. Anyone confused by The Onion’s tweets, he added, could easily confirm they were satire using any number of resources online.

A third lawyer, Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, had a gentle suggestion for The Onion: be a little more obvious in Twitter messages, in case they are retweeted. “I think it would be in The Onion’s interest to make it clear within the text of what they’re tweeting that they are the source,” she said.

The Onion’s editor, Joe Randazzo, released a statement on Thursday saying in part: “If there’s a lesson that can be learned from all of this, it is that the First Amendment in the wrong journalists’ hands is a very dangerous thing. We will continue to report on this incident, as well as the hundreds of more despicable acts Congress commits every day.”

AT&T Urges Court To Dismiss Sprint Nextel's Suit

AT&T Inc. today asked a federal judge in Washington to dismiss the suit Sprint Nextel Corp. filed to block the rival's planned merger with T-Mobile USA.

Sprint sued to block the planned $39 billion deal about a week after the U.S. Justice Department filed an antitrust action in Washington federal district court.

Lawyers for AT&T said in court papers (.pdf) filed today that Sprint does not have standing to sue. “Nothing alleged in its complaint is half so significant as the fact that Sprint filed it,” AT&T’s lawyers said.

The attorneys, including Mark Hansen of Washington’s Kellogg, Huber, Hansen, Todd, Evans & Figel, said Sprint knows the merger will enhance competition and make AT&T a more “formidable” rival.

“What is good for consumers is bad for Sprint, and that is why Sprint has filed suit,” AT&T’s lawyers said.

AT&T’s attorneys said Sprint, represented by Skadden, Arps, Slate, Meagher & Flom, has attempted to “manufacture” standing, arguing that the proposed deal, if it succeeds, will impair the company's access to inputs to provide service. Sprint contends, among other things, the merger will enhance AT&T’s roaming services, increasing Sprint’s costs.

But AT&T argued that Sprint, on a “technologically incompatible” network, doesn’t purchase roaming services from AT&T or T-Mobile.

Sprint, according to AT&T, has not provided any factual basis for alleging the acquisition, announced in March, would hurt Sprint’s ability to buy advanced wireless devices.

Sprint’s attorneys said in the complaint that the proposed deal is “brazenly anticompetitive. In one fell swoop, AT&T’s proposed purchase would eliminate one of four national competitors and marginalize a second (Sprint), pushing the market back toward a 1980s-style cell phone duopoly that would force consumers to endure higher prices and be denied the fruits of vigorous innovation.”

AT&T’s lawyers said Sprint, as a competitors, is "categorically without standing" to complain about any alleged effects of the proposed deal between AT&T and T-Mobile.

Hansen said in court papers that “when a competitor like Sprint sues to prevent a competitor’s merger, it generally reflects anxiety that the transaction will make the market more competitive, not less, reducing the competitor’s profits.”

U.S. District Judge Ellen Segal Huvelle said Sprint must respond to the motion to dismiss by Oct. 13. The judge said she will hear the dispute on Oct. 24.

Prosecutors Back Off Request For Defense Notes in Clemens Case

Federal prosecutors today abandoned their legal challenge to review the notes a defense investigator for Roger Clemens took with jurors after a mistrial in the obstruction case.

The investigator for Clemens' defense team spoke with jurors after the prosecution of of the former baseball pitcher collapsed over prosecutorial missteps in Washington federal district court.

On the second day of trial in July, U.S. District Judge Reggie Walton declared a mistrial. The government’s lawyers played for jurors a video that contained evidence the judge had earlier said could not be presented.

Prosecutors recently reached out to Walton seeking permission to speak with the jurors as the government prepares to retry Clemens on charges he lied to Congress when he denied ever using performance enhancing drugs.

Court rules, Walton said, require a judge to permit the parties involved in a case to speak with jurors after they are discharged. Walton said the defense investigator violated those rules. The judge, however, did not issue sanctions. Walton sent a letter to the former jurors asking whether any one had a desire to discuss the case with the lawyers.

Prosecutors also asked Walton earlier this month to require Clemens’ attorneys, led by Russell Hardin Jr., to provide to the government the defense investigator’s notes with jurors. Clemens’ defense attorneys opposed the request.

Walton told prosecutors that they can file a motion to compel the defense to turn over the notes. The deadline to file any such request was today.

In a one-paragraph filing this morning, prosecutors said they will not file a motion to compel Clemens’ attorneys to turn over the notes. An assistant U.S. attorney, Daniel Butler, did not provide an explanation of why the government would no longer seek the information.

Two white-collar defense lawyers in Washington said the government would likely have faced a high hurdle to review the Clemens documents. Clemens’ defense could have argued the papers are confidential through the attorney work-product privilege. Walton has set the Clemens retrial for April.

D.C. Judge Behind Updated Judicial Science Guidelines

The Reference Manual on Scientific Evidence may sound dry, but considering that it's used by judges across the country in weighing expert testimony and scientific evidence produced at trial, the release of a new edition for the first time in 10 years is big news.

Now in its third edition since 1994, the manual is developed by the Federal Judicial Center and National Research Council. The latest edition, which is available for free online, is 1,038 pages, and features several new chapters on scientific evidence that weren't available 10 years ago.

U.S. District Judge Gladys Kessler, of the U.S. District Court for the District of Columbia, served as co-chair of the committee that oversaw the new manual's production. She said the text is designed to serve as a go-to-guide for judges presented with requests to enter expert testimony.

“The point is to give judges enough undisputed scientific background so that when the lawyers start filing all those motions, to either admit expert testimony or exclude expert testimony, that judge has the fundamentals under her belt, on the basis of proper science,” she said in a phone interview.

Kessler said the latest edition includes new chapters detailing advances in neuroscience research and on the especially hot topic of forensic science. The forensic science chapter details new advances in research on handwriting, microscopic hair and fingerprint evidence.

“It raises very significant questions about…some of the specific tests on which we have relied in the judiciary for many, many years,” she said.

Kessler co-chaired the committee with Jerome Kassirer, a professor with the Tufts University School of Medicine. The manual went through an “incredible review process,” according to Kessler, including a review by the committee, by internal reviewers at the National Academy of Science, an external review by experts outside of the academy, and a final review by U.S. District Judge D. Brock Hornby, of the U.S. District Court for the District of Maine.

The Legal Times’ sister publication, Law Technology News, reported yesterday that the committee decided against including a chapter on computer science, but aims to include one the next time around.

The Morning Wrap

American in Yemen: The New York Times reports that a missile fired from an American drone aircraft in Yemen has killed Anwar al-Awlaki, a radical American-born cleric who was a leading figure in al Qaeda's affiliate there.

Epic Term?: USA Today previews the upcoming U.S. Supreme Court term and makes the case that the justices "could roil debate in the 2012 presidential election campaign" over health care, immigration and other issues.

Beyond Arizona: Lawyers at the U.S. Justice Department are reviewing four new state immigration laws to determine whether to challenge them in court, in what law professor Jonathan Turley calls a very aggressive approach in The Washington Post.

Slaughtering and Antitrust Law: More than half a million cows have been slaughtered in order to raise the price of milk in the United States, two new class-action lawsuits allege as reported in The National Law Journal.

Drugs on the Job: The Wall Street Journal reports on the raid of a Boeing Co. plant in Pennsylvania where employees allegedly bought and sold prescription drugs to take while working.

Holland & Knight Lobbying for Another FAA Contractor

Holland & Knight this week told Congress it is lobbying for a government contractor on aviation issues, marking the second time this month the firm has revealed it is advocating for a company interested in federal contracts related to airplane travel.

According to a lobbying registration filing submitted to Congress this week, the firm is representing Fairfax, Va.-based CPS Professional Services on matters involving "contracting at the Federal Aviation Administration."

The firm also disclosed in lobbying paperwork last week that it is advocating for Raytheon Co. on air traffic control and airport security matters. David Whitestone, a Holland partner, is the lobbyist on both of the accounts.

Whitestone said aviation is a core practice at Holland and the timing of the lobbying registrations was “completely coincidental.”

CPS is “just trying to do more business with the FAA,” he said.

The company is a service-disabled veteran-owned small business, a classification that allows federal agencies to award it contracts from a special pool of funds. The Veterans Entrepreneurship and Small Business Development Act of 1999 urged agencies to give at least 3% of their contracting money each year to companies owned by veterans who became disabled during the course of their military service.

According to FAA data, the agency has awarded $97.9 million in contracts to service-disabled veteran-owned small businesses from Oct. 1, 2010, to Sept. 28.

CPS already has contracts with the Defense and Agriculture departments, according to the company’s Web site. The company provides training, planning and other services through the contracts.

DOJ Report Urges Enhanced Screening Of Prison Bureau Applicants

The federal prison system, grappling with a rise in officer misconduct investigations, should devise a plan to better assess job candidates to eliminate potentially unsuitable applicants, a U.S. Justice Department watchdog report concluded.

The report, published today by the DOJ’s inspector general office, examined the hiring practice at the federal Bureau of Prisons amid the increasing number of misconduct investigations and arrests.

The prison bureau's internal affairs office opened more than 4,600 misconduct investigations last year, double the number from a decade ago. Thirty-four corrections officers were arrested in fiscal year 2010, up from 18 reported arrests in 2001.

“While most of the BOP’s 16,000 Correctional Officers never engage in misconduct or commit crimes, those who do jeopardize the safety and security of other staff and inmates and undermine public confidence in the BOP,” the report said.

In one recent case, a 26-year-old corrections officer pleaded guilty in U.S. District Court for the Southern District of Illinois to accepting bribes and smuggling contraband that included cigarettes. The officer accepted a $2,000 cash payment—money that the man later gambled, and lost, at a casino in Illinois, prosecutors said.

The inspector general’s investigation revealed that although prison bureau officials individually examine job candidates' previous employment discipline, education and credit histories, the Bureau of Prisons does not conduct a “systematic evaluation of combinations of characteristics.”

The report said more than half of the corrections officers who were disciplined for misconduct violated rules in the first year or two of service. DOJ investigators said the prisons department should develop a “composite scoring mechanism” to assess the suitability of applicants. BOP leaders agreed with the recommendation.

Thomas Kane, the acting director of the Bureau of Prisons, said in a letter to the inspector general’s office that the bureau is in the process of developing a “core value assessment exam.” The pilot exam began earlier this month.

The exam, Kane said, will measure integrity, respect and “correctional excellence.”

Audit Questions $8.1M in Treasury Department Legal Fees

A new audit report says that four major law firms failed to justify $8.1 million in legal fees that they charged the U.S. Treasury Department for work related to the financial crisis.

The report indicates that billing problems at law firms working for the Treasury Department have been more widespread than previously known. An earlier audit report in April spotlighted “vague and inadequate” fee bills submitted by a fifth law firm, Venable, but that report questioned a smaller amount, $677,000.

The latest report is especially critical of Simpson Thacher & Bartlett. Auditors looked at $5.8 million in fees that the firm received under three Treasury Department contracts, and they called into question all of it. The firm, the report says, “provided no detail of work performed in its fee bills, and did not provide receipts or proper documentation for expenses.”

On one day, the report says Simpson Thacher submitted two fee bills, one for $200,000 and another for $300,000, that “contained only the total dollar amount owed” with no detail of the work performed, the hours worked or labor rates. Later, the firm was able to provide the names of lawyers and their hours and rates but no detail of what work they did.

“No invoice contained enough information to justify [Treasury officials] paying Simpson Thacher,” the report says.

Asked for comment on the report, a Simpson Thacher spokeswoman e-mailed a statement saying the firm’s lawyers were “honored” to work with the Treasury “during an unprecedented and extremely challenging time.” The statement added that “our team of highly qualified lawyers worked closely with the Treasury staff on a daily basis to structure and implement [the Troubled Asset Relief Program] that played a key role in stabilizing the US financial system.”

Three other law firms come in for criticism: Cadwalader, Wickersham & Taft; Locke Lord Bissell & Liddell, now known as Locke Lord; and Bingham McCutchen along with Bingham predecessor firm McKee Nelson. Those firms’ fee bills were plagues by inadequate detail and block billing, the report said.

A spokesman for Cadwalader, which worked on Treasury's investment in General Motors Co. and the Chrysler Group, wrote in an e-mail that the firm does not comment on specific matters for clients “but we are very proud of the work we did in record time and under incredible pressure to restructure these two critical auto companies.”

The two other firms did not respond to requests for comment today.

The Treasury Department’s Office of Financial Stability received blame in the report, too. Auditors wrote that the office’s contracts with the law firms were inadequate because they had little direction for how detailed the firms’ fee bills should be, and the office had inadequate and inconsistent policies for reviewing legal fee bills once they came in.

In a written response to the audit, a Treasury official downplays its significance. Timothy Massad, the assistant secretary for financial stability, wrote that the contracts in question relate to the fallout from 2008 financial crisis, when government officials were desperate to save world markets. “Our entire economy was on the verge of a catastrophic collapse, markets had ceased to function, and almost every major financial institution was at risk of failure,” Massad wrote in a two-page letter attached to the audit report.

D.C. Appeals Court Weighs in On Law Firm Employment Dispute

The District of Columbia Court of Appeals delved in to the finer points of law firm management this morning, issuing a decision (PDF) that explores what makes a worker - in this case, a legal secretary - an employee entitled to certain benefits, as opposed to an independent contractor.

Washington solo practitioner Robert J. Hickey, arguing on his own behalf, challenged an administrative ruling awarding his former legal secretary, Mary Bomers, unemployment compensation. The appeals court sided with Hickey and reversed the administrative decision, but, over Hickey’s objections, upheld Bomers' employee status.

Hickey hired Bomers in January 2006, agreeing to pay her $18 per hour. Bomers did not receive any benefits and was responsible for filing her own quarterly tax returns. Her salary was reported on Hickey’s tax return as “contract labor.” Hickey fired Bomers in January 2009, citing the fact that she had missed too much work without notifying him or making other arrangements.

Bomers filed for unemployment benefits with the city’s Department of Employment Services, which denied her request based on Hickey’s claim that she had been an independent contractor, and not an employee. Bomers appealed to the Office of Administrative Hearings, which not only found that Bomers was an employee, but that she was eligible for benefits since she wasn’t fired for misconduct.

On appeal to the city’s highest local court, Hickey argued that because Bomers was responsible for handling her own tax returns – the form she used, Form 1099, is known as the “independent contractor’s tax return,” the court pointed out in a footnote – the evidence pointed to her being an independent contractor.

The court disagreed, finding that all signs pointed to Bomers being Hickey’s employee: Hickey hired Bomers directly, paid her an hourly rate and controlled her performance on a daily basis. However, the court found that Bomers’ behavior did meet the criteria for simple misconduct, since Bomers was repeatedly out of work, failed to give timely notice when she would be absent and also failed to give Hickey a sense of when she might be coming back.

Hickey did not immediately return a request for comment.

Bomers was represented by James Klimaski of Washington’s Klimaski & Associates, who said he thought the court overlooked the fact that his client’s absenteeism was because of medical issues. However, Klimaski said the court’s ruling on Bomers’ status as an employee was “quite important.”

“There are an awful lot of people in that situation who are pushed into the idea that they’re independent contractors, when of course they’re employees,” Klimaski said. “It’s a very abusive situation for the employees.”

The Morning Wrap

High Court Pitch: The U.S. Supreme Court is ever more likely to review, in its upcoming term, the constitutionality of the Obama administration's health care reform law. The National Law Journal reports the Justice Department has asked the high court to examine a ruling in August in which the U.S. Court of Appeals for the 11th Circuit struck down a key provision of the law. More coverage here.

Unsolved: Attorney General Eric Holder Jr. is asking for the public's help for clues to solve the murder of assistant U.S. attorney Thomas Wales. The Seattle Times reports on the $1 million reward in the case, one that has frustrated the authorities for years.

Accused:A Massachusetts man is accused of plotting a drone attack on the Pentagon and Capitol, The Washington Post reports. The authorities arrested the man in an undercover sting.

More Treatment: Jared Loughner, the man charged in the Arizona shooting rampage that killed six people, including a federal judge, will undergo four more months of treatment in a psychiatric center. Loughner's attorneys had been calling on the trial judge to end any additional effort, through treatment, to make Loughner understand the charges against him.

Thriller Night: The Cardinals of St. Louis soundly grabbed a playoff spot, and the Tampa Bay Rays edged past the Red Sox in the standings to claim an after-season post in a wild, wild night of baseball. More coverage here.