The BLT: The Blog of Legal Times

The Morning Wrap

Surveillance reform: President Obama this morning will deliver a speech at the U.S. Department of Justice that outlines reform of government surveillance efforts. Obama is expected to announce an overhaul of the controversial National Security Agency bulk phone data collection program. Sens. Richard Blumenthal, Ron Wyden and Mark Udall wrote an op-ed for POLITICO trumpeting the push to reform the Foreign Intelligence Surveillance Court.

Voting rights: Federal lawmakers Thursday unveiled their effort to fix the Voting Rights Act following a U.S. Supreme Court ruling that gutted a key provision, The National Law Journal reports. Coverage in NPR here, and USA Today here.

Cell phone searches: The U.S. Supreme Court today could announce whether the justices will review the scope of Fourth Amendment protection concerning police searches of cell phones. The Associated Press reports: "The Supreme Court decided 40 years ago that police don't need a search warrant to look through anything a person is carrying when arrested. But that was long before smartphones gave people the ability to take with them the equivalent of millions of pages of documents or thousands of photographs."

The Morning Wrap

Quiet times: "The surprising silence coming from the Supreme Court over the last week on a challenge to Obamacare by a group of Colorado nuns suggests justices are divided over what to with the complicated dispute," the Los Angeles Times reports. The U.S. Department of Justice is opposed to the stay Justice Sonia Sotomayor issued on New Year's Eve.

No women: The Am Law Daily has this story today: "No New Women Partners at Five Am Law Firms This Year." From the report: "Scores of Am Law 200 lawyers have celebrated achieving a long-sought career goal in recent weeks as their firms announce the latest class of new partners. In some cases, however, the crowd of revelers is surprisingly homogeneous."

Missing: Tens of thousands of Indians who are owed money under a landmark settlement over land royalties cannot be found, The New York Times reports. “Historically, there is no question that the government mismanaged these accounts and should have known where these people were,” David Smith, a lawyer involved in the case, told the Times.

Still looking: Pattons Boggs, The New York Times reports, "is not immune to the broader forces sweeping the legal field, where law firms long accustomed to operating like exclusive clubs are finding that they have to be nimble business strategists as well." Earlier coverage here and here in The Am Law Daily on Patton Boggs' now-ended merger talks with Locke Lord.

Prosecutors Fight to Keep Documents Secret in Lobbyist's Case

Federal prosecutors are fighting a request by convicted lobbyist Kevin Ring to unseal plea negotiation documents in his case.

Ring's lawyers at Miller & Chevalier in December asked a federal trial judge in Washington to unseal portions of a PowerPoint presentation prosecutors showed him before he was indicted in 2008 on corruption charges.

The defense lawyers contend the documents would bring "greater transparency to, and public scrutiny of, the daily workings of the criminal charging, plea and sentencing process." Ring's attorneys said in their petition that the information would shed light on the so-called "trial penalty"—the harm that flows from insisting on one's right to stand trial.

Ring didn't take a plea offer. He went to trial—and lost. U.S. District Judge Ellen Segal Huvelle sentenced Ring, caught up in the Jack Abramoff scandal, to 20 months in prison. The U.S. Court of Appeals for the D.C. Circuit in January 2013 upheld the conviction. The Supreme Court turned down Ring's request to hear the case.

DOJ Surveillance Law Memo Can Remain Secret, Court Says

The U.S. Department of Justice can keep secret a legal memo that addresses the authority and legality of the FBI's ability to acquire phone records without legal process, a federal appeals court in Washington ruled today.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, including one of the court's newest members, Sri Srinivasan, said the "deliberative process" legal privilege shields the document from public scrutiny. Read the opinion here.

The appeals court said the privilege—which can protect information that's shared among government officials as agencies develop policy and make decisions—applies to the entire Office of Legal Counsel memo. The D.C. Circuit panel, which included senior judges Harry Edwards and David Sentelle, declined to dig into whether any part of the document can be publicly disclosed.

The challengers, the Electronic Frontier Foundation, sued in 2011 under the Freedom of Information Act to try to obtain a copy of the memo, which addresses the FBI's pursuit of information from telecommunications companies. The FBI in late 2009 sought advice from the Office of Legal Counsel to respond to an internal review of the bureau's effort to collect phone records.

The Morning Wrap

Defended: The U.S. Department of Justice is expected this morning to defend the Affordable Care Act's contraceptive mandate in a dispute that reached the U.S. Supreme Court on New Year's Eve. Justice Sonia Sotomayor then granted a temporary injunction in the suit, brought by a group of nuns. She ordered the government to respond by 10 a.m. today.

Licensed: The Recorder reports: "In First for Nation, Undocumented Immigrant to Become Lawyer in California." The Los Angeles Times has coverage here and The New York Times here. The applicant, Sergio Garcia, wrote this op-ed in September for The National Law Journal.

Departed: The New York Times spotlights Gary Gensler's leadership of the Commodity Futures Trading Commission. "Even as Mr. Gensler’s aggressive streak thrust the once-backwater agency into the front lines of reform, it also maddened colleagues and complicated his legacy. And now that his tenure is ending on Friday, the agency has reached an inflection point, prompting Wall Street to hope for a friendlier regulator," The Times reported. Timothy Massad was nominated in November to replace Gensler as chairman.

Paid: The Washington Post reports: "Virginia taxpayers may continue to foot the bill for two private law firms representing Gov. Robert F. McDonnell and his staff in connection with state and federal criminal investigations, even after the governor leaves office Jan. 11." Lawyers from Jones Day and Holland & Knight have advocated for McDonnell.

This Week in The National Law Journal

Court Revives Claim to Art: Amanda Bronstad looks at the U.S. Court of Appeals for the Ninth Circuit ruling that breathed new life into a dispute over claims of art taken by the Nazis. "A panel concluded the claims, brought under a California law, did not infringe the federal government's exclusive power to conduct foreign affairs — the so-called foreign affairs doctrine," according to the report.

Second Thoughts on False Claims: Advocates for amending the False Claims Act -- a powerful tool for the U.S. Justice Department -- are pitching reforms on Capitol Hill, Andrew Ramonas reports. Among those lawyers who are pushing for change was a familiar face at the Justice Department: David Ogden, a former deputy attorney general under Eric Holder Jr. "I hope you look at [the FCA amendments] hard, think about them and do the right thing," Ogden said at a recent discussion on the Hill.

Banks Draw Out Their Knives: Legal challenges to the new Volcker Rule appear certain, Jenna Greene reports this week. "When federal financial regulators last week adopted the massive Volcker Rule, it didn't mean their work was finished. If anything, lawyers say the work is just beginning," Greene writes. One lawyer remarks: "The implications [for] banks are so widespread that it is highly likely there will be challenges to the final rule on a number of grounds."

Justice Dept. Fights $2M Fee Request in Voting Rights Case

The U.S. Department of Justice is fighting a request from the lawyers for Shelby Co., Ala., for more than $2 million in legal fees and costs tied to their challenge of the constitutionality of a provision of the Voting Rights Act.

The government on Dec. 6 in Washington federal district court filed its opposition to the attorney fees and litigation expenses that Shelby County's lawyers—led by Bert Rein of Wiley Rein—contend they should receive for their work.

The U.S. Supreme Court in June, in a 5-4 decision, struck down the provision of the Voting Rights Act that established the formula for determining which jurisdictions were required to give the Justice Department or a federal court the authority to review certain electoral changes before they were implemented.

Justice Department lawyers argue in their papers that Shelby County—despite prevailing in the high court—is not entitled to legal fees from the federal government. The department's court filing is here.

The Morning Wrap

Touting: The Am Law Daily reports today: "Amid Merger Talks, Patton Boggs MP Touts Strategic Plan." Patton Boggs managing partner Edward Newberry says the firm's at the "due diligence" stage in talks with Locke Lord. Increasing the firm's presence in New York, he says, is tops on the Patton Boggs agenda.

Reforming: "As the Justice Department seeks new ways to reduce the burgeoning U.S. prison population, its success is likely to depend on community programs such as the one in this small city in America’s heartland," The Washington Post reports.

Reviewing: The U.S. Attorney's Office for the District is sparring with the local Attorney General's office over access to documents in a corruption probe, The Washington Post reports. Irvin Nathan, the District's attorney general, says he's open to allowing a federal trial judge here to look at the information in dispute to determine whether prosecutors can examine the documents.

Kind Words for 'No Admit' Securities Settlements

The former head of enforcement for the U.S. Securities and Exchange Commission today defended settlements that allow financial institutions to forego admissions of wrongdoing, saying they permit quicker resolution of cases and put money back in investors pockets.

Robert Khuzami, who spent four years as enforcement director, defended the commission's long-standing "no admit, no deny" practice. Any person reading a newspaper article about a big SEC settlement, he said, would not walk away with the notion the company making the deal did nothing wrong. Khuzami described what he called the "whole package" of enforcement actions.

"I didn’t think there was much doubt in most cases that a defendant engaged in wrongdoing when you had a 20-page complaint, you had them writing a big check, you may well have prosecuted an individual in the wrongdoing," Khuzami said while addressing the state of securities enforcement during The National Law Journal Regulatory Summit in Washington.

Khuzami, who joined Kirkland & Ellis this year as a partner in the firm's government and internal investigations practice, didn't make a resounding endorsement of the SEC's new position that companies, in certain instances, now will be required to admit wrongdoing. The move, he said, raises a myriad of questions and could pose significant challenges.

The Morning Wrap

Declined: From The National Law Journal today: "LSAT Numbers Decline for Fourth Straight Year." The October test-taking numbers dropped by 11 percent, bolstering concern that any turnaround isn't likely to happen soon. More here on the drop in numbers from The Wall Street Journal.

Removed: Citing the "appearance of partiality," the U.S. Court of Appeals for the Second Circuit has removed U.S. District Judge Shira Scheindlin from presiding over the stop-and-frisk case, The New York Times reports. The New York Law Journal has coverage here. Reuters reports: "Analysis: In removing stop-and-frisk judge, U.S. court enters rare territory." Read the Second Circuit ruling here.

Reversed: "Only three days after a federal judge blocked a new Texas law that threatened to shut down many of the state’s abortion clinics, the United States Court of Appeals for the Fifth Circuit, in New Orleans, reversed the decision, saying the rule should take effect while the case is argued in the months to come," The New York Times reports. Coverage here in the Dallas Morning News. The court's ruling is here.