The BLT: The Blog of Legal Times

Smithsonian Goes to Court Over Bugs

The Smithsonian Institution has an insect problem. Not the kind that requires an exterminator, though—this one involves lawyers.

The Smithsonian wants a federal judge to alter the terms of an endowment left by Carl Drake, a professor of entomology and zoology who became a researcher at the Smithsonian in the late 1950s. The institution filed a petition in the U.S. District Court for the District of Columbia on Dec. 30.

When Drake died in 1965, he left a collection of an order of insects known as hemiptera-heteroptera to the Smithsonian, as well as an endowment designated primarily for buying more bugs.

This Week in The National Law Journal

The Abortion Docket: Senior Washington correspondent Marcia Coyle reports: "In the past two years, anti-abortion groups have seeded state laws with abortion restrictions. Challengers to court rulings for and against those laws now are knocking on the doors of the U.S. Supreme Court."

Targets: The Consumer Financial Protection Bureau is taking on lawyers, filing more suits against attorneys almost more than any other group, Jenna Greene reports this week. "When the consumer agency opened its doors in July 2011, banks, mortgage companies and other lenders braced for lawsuits — and loudly complained about the new agency's powers. But lawyers were quiet, seemingly unaware that they, too, could find themselves in the CFPB's cross hairs," Greene writes.

The Bureau: Former FBI general counsel Andrew Weissmann talks with Andrew Ramonas about the experience as one of the top government lawyers in the country. Weissmann, who's now teaching at New York University School of Law, discusses the challenges of building financial crimes cases, and he talks about surveillance and privacy.

Malpractice Suit Against McDermott Dismissed

A District of Columbia Superior Court judge dismissed malpractice claims against McDermott, Will & Emery on Friday, finding the plaintiffs were trying to re-litigate issues already decided in a related case in California.

A former McDermott client, Theranos Inc., accused the firm of failing to take steps to prevent a former firm partner, John Fuisz, from accessing confidential information. Theranos claimed Fuisz, who didn't represent the company, provided confidential intellectual property information from Theranos' files to family members pursuing competing patents. The firm said it wasn’t aware of any misconduct by its attorneys.

Theranos sued Fuisz and his family members in U.S. District Court for the Northern District of California, but a judge dismissed claims against Fuisz in June 2012, finding California's one-year statute of limitations had expired. The lawsuit filed in Washington was against McDermott, and not Fuisz, but Superior Court Judge Craig Iscoe found the two cases were based on the same "nucleus of facts." As a result, Iscoe wrote, the California decision represented a final judgment on issues raised in the D.C. litigation.

Import of Lethal Injection Drug Blocked by D.C. Circuit

The U.S. Food and Drug Administration was wrong to allow states to import a "misbranded and unapproved new drug" used in lethal injection cocktails without first examining it, the U.S. Court of Appeals for the D.C. Circuit ruled today.

In a unanimous ruling, a three-judge panel upheld a trial judge's order blocking the FDA from allowing continued imports of sodium thiopental. The court found the agency "acted in derogation" of its duty to examine foreign shipments of a drug prepared by a company not registered with the FDA. The court rejected the agency's argument that it had discretion in deciding whether to review the shipments and could permit unreviewed imports in deference to law enforcement agencies.

The case was brought by a group of death row inmates in Arizona, California and Tennessee. Eric Shumsky of Orrick, Herrington & Sutcliffe, who argued for the death row inmates on appeal, said today that given the fact that the drug imports violated federal law, "this always was just a case about whether FDA was going to have to follow the law."

Court Denies SLAPP Motion Against Scientist's Libel Suit

Climate scientist Michael Mann's libel suit against National Review has survived an effort to dismiss the case brought under the District of Columbia law barring strategic lawsuits against public participations, or SLAPPs.

Mann, director of the Earth System Science Center at Pennsylvania State University, accused the conservative publication of defaming him by running an article last summer that accused him of fraud in his research. The piece drew comparisons between a Penn State investigation into his research and the school's investigation of former assistant football coach Jerry Sandusky, who was convicted of child molestation.

On July 19, District of Columbia Superior Court Judge Natalia Combs Greene denied motions to dismiss brought under the anti-SLAPP law by National Review and the Competitive Enterprise Institute, a think tank Mann sued over a related article published on the organization's staff blog, OpenMarket.org. Combs Greene found the statements at issue had crossed the line from protected opinion to factual assertions that Mann could attempt to prove false at a later stage of the case.

After Wrongful Conviction, Suit Seeks ID of Likely Suspect

Updated at 11:33 a.m.

After enduring more than 30 years of punishment for a sexual assault he didn't commit, Kirk Odom was exonerated by DNA testing and declared innocent last summer. Yesterday, Odom's attorneys sued the U.S. Department of Justice to try to learn the identity of the likely true perpetrator.

Reviewing crime-scene DNA, prosecutors found a match in a law enforcement database. But the government has refused to tell Odom’s attorneys the identity of the person, saying only that the DNA belongs to a convicted sex offender, according to the lawsuit filed Wednesday in U.S. District Court for the District of Columbia.

The Justice Department denied a Freedom of Information Act request filed by Odom's lawyers at the D.C. Public Defender Service. According to the complaint, the department cited the privacy interest of the person identified. Odom's lawyers argued in the complaint that there was an "overriding public interest" in uncovering the results of the DNA analysis.

Court Affirms Ruling that D.C. Water Didn't Corrode Pipes

Washington's public water system has faced its share of bad press in the past, but the city recently fended off a lawsuit claiming the water was so corrosive it caused leaks in copper piping.

The owner of residential apartment buildings in Northwest Washington sued D.C. Water in 2003, accusing the agency of delivering water to the public that was so excessively corrosive that it caused small leaks in the buildings' copper piping. The trial judge found in favor of D.C. Water.

A three-judge panel of the District of Columbia Court of Appeals on July 3 upheld the lower court ruling, which said the plaintiff failed to present enough evidence that D.C. Water's actions caused the leaks. D.C. Water supplies drinking water and wastewater collection in Washington.

Court Strikes 1892 Case Law on Contracts with Mentally Ill

Replacing precedent dating back to 1892, the District of Columbia Court of Appeals ruled today that contracts entered into with mentally incapacitated individuals will no longer be considered automatically void.

Under the new standard, those contracts will be voidable, as opposed to inherently void. According to the ruling, a contract will be binding unless the incapacitated person or someone approved to act on his or her behalf takes steps to cancel it. If an incapacitated person or the representative does want to cancel a contract, they can only do so if it would be fair to the parties involved.

Judge Anna Blackburne-Rigsby, writing for the court, said the new standard, which is used in the majority of jurisdictions in the United States, "better comports with modern contract law and modern understandings of mental illness."

K&L Gates Lobbyists Add Asteroid Miners to Client Roster

Updated at 3:13 p.m.

K&L Gates has registered to lobby on an out-of-this-world matter: asteroid mining.

The firm notified Congress last week that it is advocating for Planetary Resources Inc. on issues related to quarrying the celestial bodies, but not on any particular legislation. The Seattle-based company says on its website it is "establishing a new paradigm for resource discovery and utilization that will bring the solar system into humanity's sphere of influence."

Former Representative Bart Gordon (D-Tenn.), a K&L Gates partner, is handling the account with firm partners Daniel Ritter and R. Paul Stimers, as well as associate Stephen Roberts.

Plaintiffs to Appeal Dismissal of 'Plan Colombia' Lawsuit Against DynCorp

Lawyers for several thousand Ecuadorian citizens suing DynCorp International over alleged exposure to toxins through an aerial herbicide spraying operation are preparing to appeal a recent order dismissing the case.

In 2001, more than 2,000 Ecuadorians sued DynCorp in Washington federal court, claiming that the herbicide made them sick, hurt their animals, and ruined their land. In a February 15 opinion that was unsealed last week, U.S. District Judge Richard Roberts excluded testimony from the plaintiffs' sole expert. Without that testimony, Roberts found that the plaintiffs couldn't prove that DynCorp's actions caused their injuries and dismissed the case.

Terry Collingsworth, managing partner for Conrad & Scherer's Washington office and lead counsel for the Ecuadorian plaintiffs, confirmed today that his team is "assessing which of the many possible appealable issues they will pursue in the Court of Appeals."