The BLT: The Blog of Legal Times

McGuireWoods Lobbying for Private Sector College Group

Updated at 1:42 p.m.

Former Rep. L.F. Payne (D-Va.) of McGuireWoods Consulting is lobbying for an association of private, postsecondary schools that offer career-training programs, according to registration paperwork submitted to Congress Thursday.

The Association of Private Sector Colleges and Universities has Payne, the president of McGuireWoods Consulting, and Frank Donatelli, an executive vice president and director of the firm, advocating for it on financial aid for veterans and other postsecondary education matters. The organization has more than 1,800 members that include DeVry Inc., Kaplan Higher Education Corp. and ITT Educational Services Inc.

Payne said McGuireWoods is pleased to lobby for an organization that represents an “important part” of higher education and complements his firm’s work on education matters.

Brian Moran, interim CEO and president of the Association, said in a statement that he is "delighted" to have McGuireWoods, as well as Patton Boggs, help his organization with its government relations work.

"Our goal is always to help lawmakers and policy officials to understand the critical role our schools play in assisting students to achieve their career dreams, helping the nation reach President Obama’s 2020 higher education goal, and, in the process, building a more globally competitive workforce and more vibrant economy," Moran said. "These firms will help us pursue a policy agenda that puts students first, promotes postsecondary choice and eliminates barriers to career education."

The Association spent $657,000 on lobbying during the first three quarters of this year, according to congressional records. Association staff and Podesta Group lobbyists engaged in advocacy work for the organization during that period. But Podesta Group, which received $380,000 this year for its advocacy efforts, stopped lobbying for the organization in August.

New Senior Leaders at SEC Prepare to Undertake Dodd-Frank Oversight Duties

The Division of Trading and Markets at the U.S. Securities and Exchange Commission has two new senior leaders - Peter Curley as associate director for clearance and settlement and Brian Bussey as associate director for derivatives policy and trading practices.

A former partner at Allen & Overy, Curley most recently was an attorney fellow in the Division of Trading and Markets. Prior to joining the SEC, he was head of corporate strategy and IPO regulation with Hong Kong Exchanges and Clearing Ltd.

The Office of Clearance and Settlement has been given significant new duties under the Dodd-Frank Act to oversee security-based swap data repositories.

“I am pleased to welcome Peter to this important role,” said Robert Cook, director of the Division of Trading and Markets, in a news release. “His significant expertise in both the securities and derivatives markets together with his senior management experience in the exchange industry makes him a tremendous asset for the clearing and settlement program.”

Bussey since September 2009 has served as associate director for trading practices and processing in the trading and markets division, where he led efforts to establish an Office of Derivatives Policy and expand the clearance and settlement program.

In his new job with the Office of Derivatives Policy and Trading Practices, he’ll help oversee implementation of new Dodd-Frank rules related to short selling and market manipulation.

Prior to joining the SEC in 1998, Bussey was an associate at Kirkland & Ellis in Chicago.

“Brian played a transformative role during his tenure as associate director for trading practices and processing through his leadership, vision, creativity, and drive,” Cook said. “His ability to identify and recruit talent and build teams has resulted in a new derivatives policy program and a revitalized and significantly expanded clearance and settlement program within the division.”

Appeals Court Rules For Circus In Elephant Dispute

Updated 3:14 p.m.

A federal appeals court in Washington today upheld the dismissal of claims challenging the alleged mistreatment of elephants at the Ringling Brothers and Barnum & Bailey Circus.

The U.S. Court of Appeals for the D.C. Circuit unanimously ruled that the plaintiffs in the case, a former barn helper for the circus and a non-profit group that advocates for animal rights, cannot proceed with their claims that Ringling Bros. mistreats circus elephants.

The plaintiffs, Tom Rider and the Animal Protection Institute, alleged in Washington federal district court that Ringling Bros.’ use of bullhooks and chains, to handle Asian elephants, violated the Endangered Species Act. Rider and API sued Feld Entertainment, Inc., the circus' parent company. Click here for the complaint.

U.S. District Judge Emmet Sullivan ruled in December 2009 for the circus following a six-week bench trial. Sullivan found Rider was “essentially a paid plaintiff and fact witness” who lacked credibility. The judge also dismissed the injury claim from the animal rights group, which said it had to spend money to combat the circus’ alleged mistreatment of elephants.

Writing for the appeals court, Judge David Tatel noted that Rider “complained publicly about the elephants’ mistreatment only after he was paid by activists to do so.” Rider, the appeals court said, received $190,000 from the organizational plaintiffs in the suit against the circus.

The plaintiffs’ attorneys, including Sidley Austin partner Carter Phillips said Rider should not have been required to show a “single-minded, all-consuming obsession” with elephants but, instead, a personal attachment to the animals.

The appeals court said the “extensive findings” in the case supported Sullivan’s determination that Rider “failed to prove an emotional attachment to any particular elephant.”

The Animal Protection Institute made two arguments in the appeals court to try to convince the D.C. Circuit the group has standing to proceed with the suit. The group first said it suffered “informational” harm. The circus, the animal rights group argued, is depriving the public of information contained in permit applications.

API also said it must spend resources on public education to “counter the misimpression” that the circus’ treatment of animals is permissible. The general impression that the use of bullhooks and chains do not harm the elephants, the advocacy group said, makes it more expensive to educate the public.

The D.C. Circuit said there is nothing in the record supports the group’s claim the circus’ practices has created a public sense that the treatment of elephants is harmless.

Phillips, the group’s attorney and Sidley's managing partner in Washington, said in an e-mail this afternoon: "It is a disappointing decision because I thought we had shown enough for organizational injury with respect to reallocation of resources and should have had a chance to prove that Feld’s actions clearly violate the Endangered Species Act. The Court found our proof just a little short on causation."

The lead attorney for the circus, John Simpson, a partner in the Washington office of Fulbright & Jaworski, said this afternoon that the ruling was a "significant victory."

The D.C. Circuit's findings, Simpson said, will aid Feld Entertainment's pursuit of a civil racketeering case against several animal advocacy groups. That case, filed in 2007, is pending in Washington federal district court. It alleges, among other things, bribery, money laundering and wire fraud.

It wasn't immediately known whether Rider and the Animal Protection Institute will ask the full court to hear the case. Simpson said any effort to challenge the panel holding is "a waste of judicial resources."

Barry Lynn: Twenty Years of Policing the Church-State Border

Americans United for Separation of Church and State threw a party Thursday night for Barry Lynn to mark his 20th year as its executive director. Before the Supreme Court, Congress and the public, Lynn has advocated the view that religious freedom is best preserved by keeping government and religion separate. Posters commissioned for the party at a downtown hotel drew a direct connection between Lynn and Thomas Jefferson, which radio host Bill Press said admiringly took a lot of chutzpah.

But amid the celebration there was a touch of despair in the air. In a conversation moderated by Press, Lynn and feminist Eleanor Smeal assessed the mostly bleak current state of their issues and causes.

The presidential race, Lynn said, is “religion-saturated in a way we have never seen before.” Three Republican candidates, he noted, have said God told them to run. The Supreme Court has used “standing” doctrine to limit the ability of litigants to challenge violations of the Establishment Clause, he said. And the Obama administration has “done more than Bush,” Lynn added, in supporting religious organizations with taxpayer money through “faith-based initiatives.”

For her part, Smeal, president of the Feminist Majority Foundation, said that after decades of progress for women, “I cannot believe we are fighting a right-wing takeover” in the coming election. “Some of the techniques we are using are not working.” In Mississippi and elsewhere, she said, ballot initiatives are being proposed that would restrict abortions further and define life as beginning at conception – which would threaten most forms of contraception. “Republicans are seeing how far they can go on abortion,” she said, asserting that some candidates are taking what amounts to a “women don’t count” position.

The bright spot for Smeal has been the Obama administration, which she said has been “the most inclusive White House we have ever seen.” Close to half of President Barack Obama’s judicial appointees have been women, she said: “strong women, feminists, progressives.” The Affordable Care Act, she added, is “amazing for women” in terms of benefits and equal treatment.

Asked if the nation is ready for a Mormon president, Lynn said probably so, even though a significant percentage of evangelical Christians say they would not vote for a Mormon. But he joked that those are probably the same voters who still think Obama is a Muslim, so for them, the choice is “Mormon or Muslim,” and they would likely opt for Mormon Mitt Romney over Obama.

By Tony Mauro

The Morning Wrap

Close Ties: Prominent supporters of President Barack Obama who are raising millions of dollars for his campaign have close ties to the lobbying industry, The New York Times reports. The so-called "bundlers" are not registered as lobbyists with the Senate, allowing Obama to avoid breaking his pledge to not take money from lobbyists.

Second Thoughts: The Wall Street Journal reports some big banks are choosing not to impose new fees on consumers for use of debit cards. Consumers and politicians chided Bank of America in recent weeks for its imposition of a monthly fee on card use for purchases.

Extra Juice: POM Wonderful LLC is bolstering its trial team with the addition of litigator Bertram Fields as the juice maker prepares to take on rival Ocean Spray Cranberries Inc. The National Law Journal reports Fields, a senior partner in entertainment litigation at Greenberg, Glusker, Fields, Claman & Machtinger, is also representing POM in a case before the Federal Trade Commission.

Conviction Upheld: A Brooklyn appellate court has upheld the murder conviction of a doctor who arranged to have her husband killed, The New York Law Journal reports. Dr. Mazoltuv Borukhova was convicted in 2009 for the death of her husband. Borukhova, sentenced to life in prison without parole, hired a gunman to kill her husband.

Paper Tiger Attack: The legal dispute over the troubled EpiCentre complex in uptown Charlotte, N.C., continues. The Charlotte Observer reports a federal bankruptcy judge has appointed a trustee to oversee the companies that own the entertainment, retail and office complex. The project's developer said he was frustrated with the legal wrangling. "This is what it feels like for a deer to be attacked by a tiger," he said.

On Ethics And Colbert: Retired U.S. Supreme Court Justice John Paul Stevens, in an interview with USA Today, dismissed as meritless calls for changes to the high court's practices on potential conflicts of interest. Stevens also said he is entertaining a possible appearance on Comedy Central's "Colbert Report," saying of the host: "I like him. I think he is a clever guy."

Safe Haven: The New York Times reports Turkey is providing safe haven for fighters opposed to Syrian president Bashar al-Assad. The shelter allows anti-Assad commanders to plot attacks inside a camp the Turkish military is guarding. Meanwhile, international aid continues to arrive in eastern Turkey following last weekend's earthquake that toppled buildings and killed hundreds of residents.

Drug Take Back Day: Saturday marks the federal Drug Enforcement Administration's third annual Prescription Drug Take Back Day, allowing residents to dispose of medication in cities across the country. No questions asked. Scientists are urging participation in the program, noting the problems caused when medication seeps into waterway.

Let It Snow: The first snow of the season fell in parts of Boston yesterday, bringing three inches to some areas, The Boston Globe reports. The city could see one to three inches tomorrow.

Judge Approves $1.25B Settlement In Black Farmers Class Action

A federal judge in Washington late Thursday granted final approval for the $1.25 billion settlement in the black farmers' class action that alleged government wrongdoing in loan processing.

U.S. District Judge Paul Friedman noted in his ruling “overwhelming indications of support for an interest in this settlement and the comparatively miniscule number of objections to it.”

The settlement resolves claims from farmers who did not participate in an earlier agreement with the government to receive compensation for allegations of discrimination in the processing of loans. Friedman held a fairness hearing in September.

“Although, like any compromise, the settlement agreement before the court will not satisfy everyone, it offers class members their best option for obtaining meaningful redress of longstanding injuries,” Friedman said.

Friedman said “the overall context of this litigation confirms the court’s belief that class counsel will provide adequate representation.” The case, the judge said, with its many separate legal complaints and dozens of attorneys, did not devolve “into an endless series of squabbles between rival attorneys.”

No compensation award will be paid to any claimant, Friedman said, until there has been a determination on all claims. The claims process is expected to take a year.

Friedman said after the claims process wraps up, he will award legal fees between $50.3 million and $90.8 million, which represents 4.1% to 7.4% of the settlement. The legal fees, he said, will be divided among class counsel according to a separate contact the attorneys executed among themselves.

Crowell & Moring partner Andy Marks, in addition to Henry Sanders of Selma, Ala.’s Chestnut, Sanders, Sanders, Pettaway & Campbell and Gregorio Francis of Morgan & Morgan, served as lead class counsel.

Friedman earlier this year granted preliminary approval for the deal.

Child Sex Assault Conviction Reversed on Improper Evidence

A local man accused of sexually assaulting a high school student had his conviction reversed in an opinion (PDF) published Thursday morning by the District of Columbia Court of Appeals. The appeals court found that the trial judge erred in letting prosecutors introduce evidence accusing the man of making suggestive comments to other students in the past.

A District of Columbia Superior Court jury convicted Barry Harrison in September 2009 on charges of enticing a child and child sexual abuse during his time as a mentor at Spingarn Senior High School. He was sentenced to six years in prison.

Harrison, according to the opinion, was working at Spingarn in April 2009 for several weeks as an intern with Peaceaholics, a local nonprofit that does mentoring work for at-risk young people. He was tasked with mediating conflicts, and also came into contact with other students. Three students claimed that he made inappropriate overtures, and a fourth student accused him of sexually assaulting her in a stairwell.

At trial, Harrison’s attorney had argued that the students made up the allegations to get him in trouble because he wouldn’t let them cut class or roam the hallways.

During the trial, the prosecutor presented witnesses who testified Harrison had made sexually suggestive comments to them in the past, and again referenced that testimony in closing arguments. The judge instructed the jury to consider this evidence in terms of whether Harrison was motivated to engage in a sexual relationship with the student in question.

The three-judge panel found that the trial judge erred in letting the jury hear the testimony, and that there was enough prejudice to warrant a new trial. The testimony contributed little to the question of motive, the court found, and would have likely been taken by the jury as proof of Harrison’s bad character, making it inadmissable.

“The jury was invited to infer from Harrison’s remarks…that he had a sexual interest in teenage girls, and (the forbidden inference) that he acted in conformity with that bad character trait by committing the charged offenses,” the court wrote.

Harrison’s attorney, Washington solo practitioner Steven Kiersh, said he was pleased with the decision and that “we look forward to completely vindicating Mr. Harrison in a new trial.” The U.S. attorney’s office, through a spokesman, declined to comment.

Wilmer Hires Former Fraud Prosecutor Leotta

A former assistant U.S. attorney has joined the Washington office of Wilmer Cutler Pickering Hale and Dorr, the firm announced this week.

Michael Leotta, who was Appellate Chief and Assistant U.S. Attorney for the District of Maryland, has joined as a counsel in the litigation/controversy department and as a member of the investigations and criminal litigation practice group.

As a prosecutor, Leotta investigated charges of fraud involving government contracts and procurement, Congressional corruption, mortgage fraud, health care fraud, tax evasion and embezzlement from federal programs.

As an assistant U.S. attorney, Leotta served in a detail to the White House Counsel’s Office as deputy associate counsel. Leotta was also part of the prosecution team that convicted Kevin Ring in connection with the Jack Abramoff lobbying scandal. On Wednesday, Ring was sentenced to 20 months in federal prison.

Google's Lobbyist Hiring Spree Continues

A San Antonio-based law firm informed Congress this week that it is lobbying on behalf of Google Inc.

Tuggey Fernandez is advocating for the Mountain View, Calif.-based company on "advocacy and education for issues relating to information technology," according to a lobbying registration filing. Partners Tim Tuggey and Wallace Henderson, who splits his time between the firm's Washington and Austin offices, are handling the account.

Neither of the lobbyists immediately responded to requests for comment.

Tuggey is the first firm to submit lobbying registration paperwork for Google since this summer, when 15 lobby shops registered to advocate for the Internet giant. Google hired the 15 firms as the company started facing more scrutiny in Washington over its privacy policies and online domination.

Google spokeswoman Samantha Smith has said in a statement that the company’s lobbying is intended to help lawmakers "understand our business and the work we do to keep the Internet open, to encourage innovation, and to create economic opportunity."

The company’s overall federal lobbying spending for the third quarter was $2.4 million, about $300,000 more than the last quarter and almost $1 million more than the first quarter of this year, according to congressional records.

Slocumb Case Could be Heading Toward Settlement

A case brought by an Alabama law firm that accuses three of its former Washington-office attorneys of stealing confidential client information could be heading toward a settlement.

Earlier this month, Slocumb Law Firm filed a civil complaint in U.S. District Court for the District of Columbia against three of its former attorneys, Zeke Roeser, Morgan Whitlock and Kevin Gracie. Since then, Gracie has been dismissed from the case.

Roeser and Whitlock stand accused of stealing confidential information from Michael Slocumb’s Washington office and using it to poach clients to establish a competing firm.

Slocumb’s attorney, Rodney Sweetland III, filed a motion for a temporary restraining order but later withdrew his motion. The matter has since been referred to Magistrate Judge John Facciola for settlement discussions.

“The Slocumb Law Firm is always willing to engage in settlement discussions that have a possibility of resolving these serious claims of his former associates while at the same time protecting the interest of its clients,” Sweetland said. “As an attorney I’m always hopeful that my clients can informally resolve the dispute, but given the serious nature of the allegations and the complexity of what happened, I’m not optimistic.”

Roeser and Whitlock’s attorney noted that partners and associates regularly jump to new firms or strike out on their own, often times taking existing clients with them.

“Roeser and Whitlock properly communicated their departures to their clients,” said Robert Salerno, a partner at Morrison & Foerster. “Clients are not property. They are free to choose their lawyers, and many have chosen to be represented by Roeser & Whitlock.”