The BLT: The Blog of Legal Times

Judge Awards $77M in Back-to-Back Rulings Against Iran for 1983 Bombing

U.S. District Chief Judge Royce Lamberth yesterday ordered (PDF) a $44.6 million judgment against the Iranian government for its role in the 1983 terrorist bombings at the U.S. Marine barracks in Beirut, Lebanon. The ruling came a week after Lamberth issued a $33.3 million judgment against Iran in a similar case.

In both cases, Lamberth found Iran liable for the bombing in 2010. Since then, a special master has been sorting out the damages claims. Lamberth has handled a number of civil claims in U.S. District Court for the District of Columbia related to the 1983 bombings; he issued a $1.2 billion judgment against Iran in one of those cases in December.

The bombing killed 241 people and injured many more. Iran was accused of supporting the militant Lebanese group Hezbollah, which was believed to have carried out the attack.

The two most recent rulings in D.C. federal court, Anderson v. The Islamic Republic of Iran and O’Brien v. The Islamic Republic of Iran, involved service members who were severely injured in the attacks.

Lamberth awarded (PDF) $33 million in compensatory and punitive damages to the families in the Anderson case on March 20. He awarded $44 million yesterday to the families in the O’Brien case.

A lead attorney in both cases, Joseph Peter Drennan of Alexandria, Va., said that he has a few more cases pending related to the 1983 bombing. Drennan said he and other attorneys working on these cases want “justice and accountability against Iran, on behalf of all the Marine families.”

Former Federal Prosecutor In D.C. Accused of Misconduct

A legal ethics committee in Washington is recommending the public reprimand of a former federal prosecutor here who is accused of concealing favorable information from a man charged in an aggravated assault case.

The D.C. Office of Bar Counsel alleged that former assistant U.S. attorney Andrew Kline violated a local rule of professional conduct that says prosecutors cannot intentionally fail to disclose evidence that would benefit a person’s defense.

A committee of the D.C. Board on Professional Responsibility on Wednesday issued a report (PDF) that said Kline kept secret information that would have aided a man’s defense on charges tied to a drive-by shooting in Washington.

The committee said Kline knew that the shooting victim initially told a police officer that he did not know the identity of the man who fired at him. The committee’s recommendation of censure marks a rare case of disciplinary proceedings in Washington against a prosecutor.

“A prosecutor’s violation of his duties to the criminal justice system is a profoundly serious matter,” the committee said. “The prosecutorial obligation to disclose exculpatory information is inexorably intertwined with defendant’s right to due process, and hence determines the integrity of the trial process.”

Kline, the committee’s report said, held onto that information “unilaterally,” notwithstanding the encouragement for prosecutors in the U.S. Attorney’s Office for the District of Columbia to confer with supervisors or appellate attorneys on such matters.

“Had he undertaken even the most cursory consultation, (Kline) undoubtedly would have been advised to disclose the information,” considering that supervisors all later concluded that defense counsel was entitled to it, the hearing committee said.

Kline said in an interview this afternoon that the Office of Bar Counsel is “over-reaching” with the misconduct allegation. He said the victim statement at issue was not “material” to the shooter’s defense given the accounts of two other witnesses.

“I didn’t intentionally withhold evidence that I thought tended to negate the defendant’s guilt,” said Kline, a member of the D.C. Bar since 1994 who has spent most of his career as a public servant. “I don’t want to call it a mistake. I didn’t violate a rule.”

Johnson Remembered for Tough Courtroom Demeanor, and for Breaking Barriers

Two Washington courts met in a joint session yesterday to remember the life and legacy of Norma Holloway Johnson, the former chief judge of U.S. District Court for the District of Columbia. After a 33-year judicial tenure on that court and District of Columbia Superior Court, she died last September.

Matt Olsen, who served as a law clerk for Johnson, remembered her stern courtroom demeanor. He recalled how, during one of the first sentencings he witnessed, "she glared at the defendant over the top of her glasses."

"I wasn't scared for the defendant ­ I was scared for myself," Olsen said, before turning to address both courts' current chief judges.

"You really didn¹t have anything on Chief Judge Johnson," he jested.

District Court Chief Judge Royce Lamberth remarked that Johnson's life saw "a lot of firsts." She became the first black woman to graduate from Georgetown University Law Center when she earned her law degree in 1962, and, in 1997, became the first black female chief judge of the U.S. District Court in Washington.Several speakers noted that Johnson's life did not begin in high places. Born in 1932 in Lake Charles, La., Johnson briefly worked at the town's first black-owned drugstore after graduating high school. Her mother, who Pamela Bethel of the Washington Bar Association described as a woman who "understood the importance of having a dream," sent Johnson to live in D.C. with an aunt so she could attend a better college than she could in Louisiana.

After graduating from the District of Columbia Teachers College in 1955, Johnson taught eighth-grade students at the District's Taft Junior High School before going to law school, an experience she wove into her later life in the courtroom.

"Many of us sitting in this room benefited from her counsel," Bethel said.

While she was characterized as a firm hand in the courtroom, Olsen remembered Johnson displaying a lighter attitude elsewhere. In particular, he remembered a time when she spent half an hour offering encouragement to the young daughter of the custodian cleaning her chambers.

"Looking back, I can't help but think that Chief Judge Johnson didn't see a bit of herself in that little girl," he said.

Annice Wagner, a senior judge with the District of Columbia Court of Appeals, who Lamberth described as being "thick as thieves" with the late judge, spoke mainly about how Johnson's life was a continual series of hurdles.

Wagner said it was not uncommon for others to mistake Johnson for "anything but a lawyer" during her early years, at one point even being denied the right to represent a client before the same federal court she eventually headed.

Wagner closed by saying that Johnson's legacy is "a permanent part of the fiber of the administration of justice in this jurisdiction and beyond."

House Panel Grills Consumer Protection Chief on What Defines 'Abusive' Lending Practice

Members of the House Financial Services Committee pressed Consumer Financial Protection Bureau head Richard Cordray on the definition of "abusive" lending practices in an oversight hearing today.

"How can companies comply with this law?" asked Rep. Sean Duffy (R-Wis.), who called it "a subjective standard with no bright line.”

The Dodd-Frank Act that created the CFPB gives the agency the authority to police lending practices that are unfair and deceptive – both familiar terms from other consumer protection statutes – but added a new standard: abusive. In Section 1031 of the law, abusive practices are defined as those that “materially interfere” with a consumer’s ability to understand a product or service and/or take “unreasonable advantage” of the consumer’s lack of understanding.

Cordray stressed repeatedly that “Congress defined [abusive], not us…My job as director is to enforce the law Congress enacted.” But he acknowledged that “we’ve been trying to puzzle through how a pretty straightforwardly defined term in the law should be applied.”

“Will you use your enforcement authority rather than rulemaking authority to set standards of what is abusive?” asked Rep. Spencer Bachus (R-Ala.), who chairs the Financial Services committee.

Cordray didn’t answer directly, but said the CFPB was trying to be “careful, measured and thoughtful.” He later added, “There’s a gray area and a core. Within the core, there’s no question people are perpetuating acts they know are wrong but are doing it anyway… Enough misconduct is occurring in the core that we’d be well served to focus on that at the outset.”

Could a lender or institution be liable “anytime a consumer simply doesn’t understand a product or service?” Bachus asked. Cordray said no – the key, he said, was taking “unreasonable advantage,” adding that companies “often have a pretty good sense of whether they’re doing this or not.”

Cordray also stressed that “’reasonable’ is a common term in the law,” and that the “reasonable person standard” is a cornerstone of tort law.

Cordray did acknowledge it was possible that a product or practice could be abusive without also being unfair. For example, if a lender convinced an 80-year old widow who had nearly paid off her mortgage to refinance her home with an exotic loan, that could be considered abusive, but if the same loan was offered to a more sophisticated investor, it might not be.

That didn’t sit well with Duffy, who noted that the same practice “because of a person’s background, education, or experience may be abusive” in one case, but not another. “The standard isn’t a reasonable person, but an individual,” he said.

“It’s a facts and circumstances test,” Cordray said. “Most good businesses know an abusive practice when they see it.”

Rep. Brad Miller (D-N.C.) defended the statutory language. “I’m puzzled by the complaints over the use of subjective language in the statute,” he said. “Subjective terms are used throughout the law. That’s been viewed as a strength of our legal system…Clarity can lead to inflexibility. There needs to be some subjectivity to reach new circumstances.”

Former Thompson Hine Litigator Opens D.C. Boutique

A former Thompson Hine partner in Washington has opened his own shop, forming a private practice with one other attorney.

Kip Schwartz, formerly vice chair of Thompson Hine’s litigation practice in D.C., is being joined by one of the firm’s former associates, Eric Heyer, to form Schwartz & Associates.

Schwartz, who focuses his practice on complex commercial litigation, employment, and fiduciary liability, said he's wanted to open his own shop for a number of years. He added that he'll be looking to add attorneys.

“We offer the talent and experience that other firms have and the flexibility and ultra-competitive rates of boutiques firms,” Schwartz said. “There was anxiety about leaving the safety of a large national law firm practice, but that anxiety was overcome by the desire to get into an environment where I could offer my quality legal service at much more market-compatible rates.”

Schwartz said that he maintains a loyal client base that understands that when “settlement is just not practical,” it requires an experienced trial lawyer. He said there has always been “an inverse relationship" between the robustness of a litigation practice and the state of the economy.

Amid Signs of Continued Slowdown, Senate Panel Approves Three Judicial Nominees

Updated 12:24 p.m.

The Senate Judiciary Committee approved three judicial nominees today on Capitol Hill, among hints that a dispute about President Barack Obama’s controversial recess appointees could stall their confirmations by the full Senate.

Nominees Richard Taranto for the U.S. Court of Appeals for the Federal Circuit, and Robin Rosenbaum for the Southern District of Florida were approved with a voice vote, and only one vote against each. The committee also voted 10-6 to approve Gershwin Drain for the Eastern District of Michigan, despite Republicans expressing concerns about his views on gun ownership rights and the death penalty.

The "no" votes on Taranto and Rosenbaum were from Sen. Mike Lee (R-Utah), whose opposition led to a political standoff on judicial nominees last month. Lee has said he will vote against all Obama’s nominees until the president rescinds his recess appointments, which were made during a two-day break in January. Several Republicans and even some Constitutional lawyers have concluded that the time frame Obama used to make the appointments doesn't qualify as an actual recess.

To end that standoff, Senate leaders came to an agreement to give confirmation votes on 12 federal district court judge picks and two circuit court selections before the summer. As part of the deal, the Senate on Wednesday confirmed Susie Morgan to the Eastern District of Louisiana by a 96-1 vote, and Miranda Du to the federal bench in Nevada, by a 59-39 vote.

But it's unclear when the Senate will act on other nominees. Taranto and Rosenbaum now join other relatively non-controversial judicial nominees who have been passed through the Judiciary Committee but are still waiting for confirmation votes in the full Senate.

Ranking Minority Member Sen. Chuck Grassley (R-Iowa) said Drain wrote an article about the Second Amendment in which he envisioned a day when the National Rifle Association would lose influence and a person with a gun would be looked on as a coward.

Grassley said Drain also wrote an article calling the death penalty barbaric and said it did not deter crime, although he testified that he has changed his mind since that was published.

D.C. Federal Courts Honor Pro Bono Work at Local Firms

Twenty-nine law firms in Washington were honored this morning for their commitment to public service, meeting a benchmark of having at least 40 percent of their attorneys performing 50 hours or more of pro bono work.

Seven firms were also recognized for having 50 percent or more of their lawyers do at least 50 hours of pro bono work, and Jenner & Block received a special nod for having 45 percent of its partners meet the 50-hour benchmark.

The ninth annual "40 at 50 Judicial Pro Bono Recognition Breakfast" is organized by the D.C. Circuit Judicial Conference Standing Committee on Pro Bono Legal Services.

Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit said in his remarks that pro bono work remains as important as it was during the peak of the economic downturn.

“The problems that cause people to need pro bono services do not vanish when the economy gets better,” he said. He added that law firms “owe a service to the whole of society” in return for the right to function as an “oligopoly.”

More than 100 firms were eligible for consideration this year; to be eligible, firms must have a D.C. office and at least 25 attorneys.

The Morning Wrap

Supreme Ending: As three days of oral arguments wrapped up, the fate of the Affordable Care Act seemed uncertain as ever amid divisions between the justices. The National Law Journal's Tony Mauro and Marcia Coyle report.

Charged: The JetBlue pilot who had a mid-air meltdown on a Las Vegas-bound flight was charged with interfering with a flight crew, Associated Press reports.

Apology: Spike Lee has apologized for tweeting what he thought was the address of George Zimmerman, the man who gunned down 17-year-old Trayvon Martin. Lee issued an apology on Twitter after he transmitted the address of an elderly couple instead. The Wall Street Journal reports.

We Can Work It Out?: Apparently not. The Beatles' Apple Corps blocked a Dutch wheelchair manufacturer from producing a 'Beatle' mobility device. Bloomberg reports that a European court blocked the trademark sought by the manufacturer.

At Least One Candidate May Be Eyeing Top-Level Vacancy at Patton Boggs's Lobby Shop

With Nicholas Allard, Patton Boggs's lobbying, political and election law practice chairman, set to become the dean of Brooklyn Law School, at least one of his firm's lobbyists is eyeing his office.

Allard, who will start at the law school on July 1, declined to comment on whether Kevin O’Neill, the firm's public policy department deputy chairman, is his likely successor as chairman. But Allard joked that he was "a little disturbed" to see O'Neill take measurements of his office this week.

“He is certainly looking at my office,” said Allard, who intends to stay on as a senior attorney at Patton when he starts at Brooklyn Law School.

Patton Managing Partner Edward Newberry said O’Neill “certainly could be a good candidate to fill that role.” But he also declined to comment on who the leading candidate for the post is, saying the firm has yet to discuss who will assume the job.

Neither O’Neill nor Darryl Nirenberg, the lobbying practice’s deputy chairman, immediately responded to requests for comment.

O’Neill, a onetime Republican U.S. House candidate in Virginia, focuses on matters related to education, transportation and health care at the firm. He lobbied last year for Patton clients that included Richmond, Va.; Baylor University; and pharmaceutical manufacturer Genetech Inc., according to congressional records. O'Neill, who was on The National Law Journal's "40 under 40" list in 2009, joined Patton in 2000.

Whoever will take Allard’s post will help oversee one of the biggest lobbying practices in Washington.

Patton last year placed second on The National Law Journal’s Influence 50 list of top lobby shops, including those within law firms. The firm’s 121 lobbyists helped bring $88.5 million in gross revenue from lobbying work in 2010, according to the data used for last year’s Influence 50 list. Patton’s 2010 revenue posting was a 13.3 percent increase from 2009.

News of Allard's departure broke today. The National Law Journal's Karen Sloan examines what his presence at Brooklyn Law School means for the institution here.

FCPA Bar Anticipating New Justice Department Guidance

A lively panel discussion Wednesday on the Foreign Corrupt Practices Act, which included former Attorney General Michael Mukasey, offered insights into an anticipated FCPA guidance from the Department of Justice.

The panelists at the Dow Jones Global Compliance Symposium agreed that while it’s hard to predict what the DOJ will recommend, there was a general consensus that much of the pressure for the clarification was coming from outside the United States.

Butler University business law professor Mike Koehler said that the Justice Department should take it further and aggregate the guidance into a single document that could clarify FCPA enforcement. The other panelist was Paul, Weiss, Rifkind, Wharton & Garrison partner Mark Mendelsohn.

“I’m hoping that it is going to be far more specific than what it is now,” Mukasey said. He said that while he doesn’t know what reforms are going to be made, one resolution should be the clarification of compliance defenses for companies. A rogue employee should not be used against an entire company with a robust internal compliance program. He said that this would likely result in a tightening of standards.

“If it turns out that a rogue employee gets past [the compliance program], the company ought not to be liable,” Mukasey said. “There are in fact companies that are making decisions that are not to the advantage of the economy or the country.”

Not addressing these issues of compliance force some companies to decline to do business in certain parts of the globe because policing the matters become too hazardous. That opens the door to “folks like the Russians and the Chinese who are a less delicate” when it comes to compliance enforcement, Mukasey said.

But Mendelsohn countered, saying that the statute should explicitly spell out what a company’s liability was rather than having to defend itself later.

“My clients, companies, don’t want to be indicted and then mount an affirmative defense to rebut the presumption of liability,” Mendelsohn said.

The panel also discussed the recent failure of FCPA cases brought by the government, including an Africa sting that was dismissed in February.

“These were astounding failures on behalf of the DOJ,” Koehler said. “They ruin real people’s lives. They empty people’s wallets.”

But Mendelsohn disagreed with the notion that there was a problem with the statutes. He said that FCPA cases are incredibly time consuming and difficult to bring due to the expansive nature of the fraud.

“I don’t think any of the difficulties that the government has had in the several cases that have gone to trial are problems with FCPA,” Mendelsohn said. “None of them go to an element of a statute or the way the statute was enforced.”