The BLT: The Blog of Legal Times

Justices Still Silent on Whether They Will Take Up Gay Marriage

Gay rights and other organizations, anxiously awaiting Supreme Court action on an array of same-sex marriage petitions, will have to wait a little longer. The justices emerged from their Friday conference without any word on whether they will take up one of the most important civil rights issues in a decade.

The justices had 10 petitions for review on their Friday conference list. In anticipation of some action on one or more of the petitions, same-sex marriage advocates and opponents had prepared teleconferences and other means of getting out a quick reaction.

Listing a petition for a particular conference is not a guarantee of immediate action by the Court. With 10 petitions coming from three federal appellate courts and several district courts, the justices may have needed more time to decide not just whether to step into the controversial issue, but which petition or petitions offered the best vehicle for resolving the constitutional questions raised.

The Court is expected to grant review in at least one of the petitions challenging Section 3 of the federal Defense of Marriage Act. Review is likely because two federal appellate courts—the U.S. Courts of Appeals for the First and Second Circuits—have held that Section 3 of the act is unconstitutional as applied to same-sex couples legally married under their state laws. That section defines marriage for all federal purposes as between one man and one woman. An estimated 1,000 federal laws, ranging from tax to employment benefits, are affected by the definition.

Former Latham & Watkins D.C. Managing Partner Retires After 40 Years

After nearly 40 years in the legal profession, Latham & Watkins partner Eric Bernthal is calling it quits.

The communications law partner and former D.C. managing partner is retiring from Latham after 26 years with the firm. Friday is his last day.

"For me, leaving Latham is really hard because I've absolutely loved my 26 years at the firm," Bernthal said in an interview. "It's really been a glorious ride."

Bernthal plans to spend his retirement wearing two hats: serving as chairman of The Humane Society of the United States and working alongside his actor son on a theatrical productions business.

Energy Department Lawyer Named GC for University of Michigan

U.S. Department of Energy deputy general counsel for litigation and enforcement Timothy Lynch has been named general counsel of the University of Michigan.

Lynch, who since April 2010 has led DOE's litigation efforts and served as the point person for the massive case involving radiation leaks from the Hanford Nuclear Reservation, will start his new job on January 7.

He'll oversee a 20-plus lawyer legal department, serving as senior legal counsel to the Board of Regents and university administration and will manage relationships with outside counsel.

D.C. Judge Sides with J.P. Morgan in Spat Over Redacted Emails

Updated 2:58 p.m.

A federal magistrate judge in Washington has ruled against federal energy regulators, saying J.P. Morgan doesn't have to produce 25 unredacted emails in an investigation about manipulation in power markets.

Lawyers for the Federal Energy Regulatory Commission turned to Washington's federal trial court this summer to seek the enforcement of an administrative subpoena. The attorneys challenged J.P. Morgan Ventures Energy Corp.'s assertion of attorney-client privilege.

Magistrate Judge Deborah Robinson said she inspected, in chambers, the redacted portions of the 25 emails in dispute. In a ruling published Thursday evening, Robinson said the attorney-client privilege shields the information from disclosure. Her ruling is here.

Lawyers from the firms Sutherland Asbill & Brennan and Skadden, Arps, Slate, Meagher & Flom represent the bank. Skadden partners Michele Roberts and William Scherman are among the lawyers who represent the bank.

FCC Gives Marketers Cover from Text-Message Claims

In a move that seems likely to shut down a hot new category of class actions, the Federal Communications Commission has ruled that companies can send a one-time text message confirming a consumer's request to opt out of receiving more text messages.

It sounds innocuous enough, but Barclays Banks paid about $8 million to settle a class action earlier this year stemming from the following text: "You will no longer receive text alerts from Barclaycard to this number. If you have questions, call 866-408- 4070" (the bank did not admit wrongdoing). Other entities including Citibank, American Express; NASCAR Holdings; the National Football League; Redbox Automated Retail and GameStop face similar class actions.

The FCC in a declaratory ruling issued yesterday found that a text confirming a consumer's request that no additional text messages be sent does not violate the Telephone Consumer Protection Act of 1991. However, the FCC stressed that the ruling applies only when the company received prior expressed consent to send the consumer text messages.

D.C. Bar Begins Annual Judicial Evaluations

Hoping to boost participation this year from government lawyers, the D.C. Bar Judicial Evaluation Committee has announced the beginning of its annual survey of District of Columbia judges.

This year's survey – January 11 is the last day lawyers can submit comment – covers nine judges on the District of Columbia Court of Appeals and 23 judges on the District of Columbia Superior Court. The committee evaluates judges on the two courts in their 2nd, 6th, 10th and 13th years on the bench, or at the halfway point for senior judges serving four- or two-year terms.

Feedback from lawyers is needed to support the city's merit-based process for picking and reappointing judges, said local attorney Steven Berk, who chairs the judicial evaluations committee. "If you're going to appoint judges and reappoint by merit, you need some mechanism to evaluate them," he said.

D.C. Circuit Chief Judge Sentelle to Take Senior Status

Updated 3:27 p.m.

Judge David Sentelle, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, will be taking senior status in February, according to the U.S. Courts website.

The move opens a fourth vacancy on the 11-judge court for President Barack Obama to try to fill during his second term. Obama did not get any judges confirmed to the D.C. circuit during his first term, and his nomination of Caitlin Halligan has met with strong resistance from Republicans in the Senate.

Sentelle, appointed by President Ronald Reagan in 1987, became chief judge in 2008, at the beginning of Obama's first term. At the time, there already was a vacancy on that court when John Roberts Jr. was elevated to the U.S. Supreme Court in 2005. Since then, Judge Raymond Randolph took senior status in November 2008 and Judge Douglas Ginsburg also took senior status in October 2011.

Sidley Austin Adds FDA Lawyer to Food and Drug Practices in D.C.

Updated at 2:33 p.m.

Sidley Austin has strengthened its food, drug and medical device practices with the addition of a new partner.

William McConagha has joined the firm from the Food and Drug Administration, where most recently, he was on detail as health and policy adviser to the U.S. Senate Committee on Health, Education, Labor and Pensions.

"After I had this great opportunity on the Hill, the detail was coming to a close, and I was considering what to do next," McConagha said. "It just seemed like it was a natural transition point to try and do something new."

The Morning Wrap

Confined: "An Army private charged in the biggest leak of classified documents in United States history testified Thursday that he felt like a doomed, caged animal after he was arrested in Baghdad and accused of sending the military and diplomatic documents to the secret-spilling Web site WikiLeaks," the Associated Press reports. More coverage here and here.

Payday: The AmLaw Daily reports on year-end associate bonuses today. "When it comes to year-end associate bonuses, it appears the legal industry's top tier still follows Cravath, Swaine & Moore." So far, four Am Law firms--Paul, Weiss, Rifkind, Wharton & Garrison; Proskauer Rose; Simpson Thacher & Bartlett; and Skadden, Arps, Slate, Meagher & Flom--say they will match the bonus scale Cravath established.

Snared: A senior editor at TheStreet.com is cooperating with federal authorities in an insider-trading probe, The Wall Street Journal reports. The editor hasn't been charged in the alleged criminal scheme.

Waiting: From the Los Angeles Times today: "At San Francisco City Hall, officials are awaiting their moment in history, but they just don't know when it will come." The U.S. Supreme Court today is prepared today to take up the issue of gay marriage, choosing whether or not to review pending disputes, including California's Proposition 8 case.

Appliance Company to Pay Feds $4.6M After DOE Probe

Consumer appliance giant GD Midea Holding Co. has agreed to pay a $4.6 million fine after tests by the Department of Energy found that four of the company's freezers or refrigerator-freezers didn’t meet federal energy conservation standards.

Two of the freezer models were sold under the Kenmore brand. One of the freezers, a Kenmore 6.9 cubic foot chest model, used 55 percent more energy than the federal standard allows, according to DOE tests. More than 83,000 units were sold.

Another Kenmore freezer, a 5.1 cubic foot model with sales of 191,00 units, consumed 28 percent more energy than federal standards permit.

The agreement bars Midea from importing or distributing the models. Also, the company must export or destroy all units in its possession in the United States within the next 120 days.