Supreme Court Puts Greenhouse Gas Cases on a Diet

Chief Justice John Roberts Jr. once said, "I have yet to put down a brief and say, 'I wish that had been longer.'" The Supreme Court appears to be embracing that sentiment in its management of the upcoming set of cases challenging the Environmental Protection Agency's regulation of greenhouse gases. In an order issued Tuesday, the court told the six petitioners in the consolidated case to keep their legal briefs to 45,000 words total -- a sharp cut, given that the nine parties would otherwise have been able to file nine separate briefs of 15,000 words each, or 135,000 words total. "Ouch, we'll miss those words," said Jack McMackin of Williams & Jensen, who represents a group of plaintiffs led by the Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation. "But who could blame them. I think they already have a headache, just thinking about the briefing. So do I." McMackin added, "There may be an opportunity in it. I think the court is trying to encourage some joint briefs. While that is unlikely for some petitioners, I think there is at least one potentially great—and very useful to the court in straightening this mess out—joint brief that is possible." The court granted review to the six petitions on October 15, then ordered the parties to come up with a plan for consolidating the briefing and avoiding repetitive arguments. A week later, Peter Keisler of Sidley Austin submitted a plan on behalf of both sides. For those challenging the EPA regulations he requested permission for five briefs for a total of 75,000 words. But that apparently was not enough of a cut for the court. Those defending the EPA regulations sought permission for three briefs of 15,000 words each -- one for the EPA, one for environmental groups, and one for states that like the regulations. That also was too much for the court, which gave the SG 15,000 words but the other two groups only 10,000 words each. Keisler told the court that the challengers would have a problem with fewer than five briefs or 75,000 words because parties have staked out positions that are "in tension with others or even possibly mutually inconsistent." Keisler's client the American Chemistry Council, for example, accepts regulation of greenhouse gases from sources that also emit more traditional pollutants like lead or sulfur dioxide. But states led by Texas dispute the EPA's authority altogether and urge the court to overturn or reconsider Massachusetts v. EPA, the high court's 2007 precedent that established EPA power to restrict greenhouse gas emissions by motor vehicles. The court has not scheduled arguments yet, but they are likely to take place in February. The justices said one hour would be allotted for argument, but it is conceivable that the parties will seek expanded or at least divided argument time to present the various positions.

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The Morning Wrap

Hacked: The NSA have secretly broken into links between Google and Yahoo's data centers that, collecting the data and storing it at its Fort Meade, Md. headquarters. The government has denied the allegations. The Washington Post has the story. Chemical Weapons: Syria is said to have destroyed all of its chemical weapon production and mixing facilities, according to an international watchdog. The New York Times reports. Baseball: The Boston Red Sox won the World Series last night at Fenway Park. The Red Sox beat the St. Louis Cardinals 6-1, marking the first time the team has won the World Series at Fenway since 1918. The Boston Globe reports. Identity Theft: In a case of first impression, a Tennessee real estate developer had his identity theft conviction wiped after the Sixth Circuit threw out his conviction. The ruling narrows the scope of aggravated identity theft law. The National Law Journal's Mike Scarcella reports.

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Schiff Hardin Adds Pair of Product Liability Partners

Two Goodwin Procter lawyers, including the leader of the firm's Washington litigation department, are leaving for Schiff Hardin. Elizabeth Geise and Valerie Ross, who focus on toxic tort litigation, join as partners in the product liability group. Their practice includes class actions, commercial litigation and insurance coverage disputes. Geise formerly led Goodwin's Washington litigation team. Geise said in an interview that she and Ross "were looking for a larger and more national products liability practice." Schiff Hardin, Geise said, wanted her and Ross as much as the two lawyers wanted to move to the firm. Geise said she first met Schiff Hardin chairman Robert Riley when the two attorneys were on opposite ends of a case about 25 years ago. "For our work, it's largely been in the asbestos litigation area," Ross said. "Schiff Hardin does work in other areas and we are looking to expand our products liability practice in other areas." Geise said several clients—she declined to name them—will follow her to Schiff Hardin. Goodwin has more than 750 attorneys, compared to Schiff Hardin which has about 300. Goodwin's profits per partner last year were around $1.5 million, compared to $870,000 at Schiff Hardin. The addition of Geise and Ross bring the headcount in Schiff Hardin's Washington office to 36 attorneys, according to the firm website. Schiff Hardin's Washington office has grown steadily this year, due in part to the firm's merger with Bruder, Gentile & Marcoux. In January Schiff Hardin acquired a 10-lawyer team—five partners and five associates—from Bruder. The energy regulatory group of attorneys focus on the electric and natural gas industries. In March, Schiff Hardin added three corporate and securities partners from Cozen O'Connor.

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Reed Smith Joins Fight Over D.C. Attorney General Election

Lawyers from Reed Smith are stepping in pro bono to fight the D.C. Council's decision to delay the city's transition to an independent, elected attorney general. The council voted Oct. 1 to push the election back from 2014 to 2018. Paul Zukerberg, a lawyer and former D.C. Council candidate, challenged the delay in court, arguing the council unconstitutionally ran afoul of the charter amendment approved by voters in 2010 calling for the first election to take place in 2014. Zukerberg was serving as his own lawyer until last week, when Reed Smith partner Gary Thompson entered the case as Zukerberg's attorney. Reed Smith partner Marc Kaufman joined the case yesterday. Zukerberg said that when he started asking law firms earlier this month about taking the case, Reed Smith expressed interest and "was ready to jump up on such short notice." U.S. District Judge James Boasberg is scheduled to hear arguments on Zukerberg's motion for a preliminary injunction on Nov. 7. Thompson is an insurance recovery attorney, but pro bono is a significant part of his practice, according to his law firm bio. He was listed on the local court system's pro bono honor roll for performing at least 100 hours of service last year. Zukerberg said the firm brought election law experience that would be useful. "I'm a solo practitioner, they have 1,500 lawyers worldwide," Zukerberg said. "It's like the cavalry comes at the last minute." Councilmembers who supported delaying the election cited uncertainty about the scope of an elected attorney general's authority-attorneys general currently are appointed by the mayor-and the lack of declared candidates. The council initially voted to delay the election in July. Zukerberg filed his lawsuit in D.C. Superior Court on Sept. 30, and the city moved the case to federal district court shortly after. Mayor Vincent Gray (D) and Attorney General Irvin Nathan were opposed to the delay, but Nathan has said he believed the council did have the authority to postpone the election. Thompson said in an email that the council "should respect the will of the DC Voters: we want an elected [attorney general] to improve the checks and balances on our city government." Zukerberg acknowledged he might be interested in running for attorney general when the election finally does take place, but said was pursuing the case as a concerned voter. Zukerberg unsuccessfully ran for the D.C. Council earlier this year on a platform of decriminalizing marijuana. His criminal defense practice has specialized in controlled substances cases.

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Tech Counsel Show Support for 'Patent Troll' Reform

Tech companies SAP AG and Vizio Inc. have a friend in Representative Bob Goodlatte (R-Va.), the sponsor of a patent lawsuit reform bill to fight so-called "patent trolls." Speaking Tuesday at the Association of Corporate Counsel's Annual Meeting in Los Angeles, SAP senior IP counsel Lisa Buccino and Vizio general counsel and legal affairs vice president Jerry Huang signaled their support for the Innovation Act [PDF], which Goodlatte introduced last week. The legislation is intended to make it more difficult for patent trolls—also known as patent assertion entities (PAEs)—to file abusive lawsuits, without weakening the overall U.S. patent system. SAP and Vizio constantly face attacks by patent trolls, Buccino and Huang said. The patent system, the lawyers said, is skewed toward PAEs, which they said have little to lose when pursuing infringement claims. Affiliate publication Corporate Counsel has more.

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Eleven Lawyers, Judges Vie for D.C. Court of Appeals Seat

Judges, law firm partners and local and federal government attorneys are among the 11 lawyers vying for a seat on the D.C. Court of Appeals. The judicial hopefuls want to replace Judge Kathryn Oberly after she steps down Dec. 15. The local group that vets judicial applicants, the D.C. Judicial Nomination Commission, will recommend three lawyers to the White House. The president's nominee goes before the U.S. Senate for confirmation proceedings. The nine-member D.C. Court of Appeals is the city's equivalent of a state supreme court. It has one of the busiest appellate dockets nationwide. The city doesn't have intermediate appellate courts, meaning the appeals court takes a broad array of cases from the D.C. Superior Court and local administrative hearing judges. Two Superior Court judges and a magistrate judge are interested in Oberly's seat: Judge Craig Iscoe, a member of the bench since 2003; Judge Neal Kravitz, who joined the court in 1998; and Magistrate Judge Karen Howze, who was appointed in 2002. The former top lawyer for the D.C. government, Robert Spagnoletti, applied. Spagnoletti, a partner at Schertler & Onorato, chairs the D.C. Board of Ethics and Government Accountability. Todd Kim, who serves as solicitor general for the District of Columbia in the city attorney general's office, applied as well. Three other lawyers from private practice applied: Geoffrey Klineberg, a partner at Kellogg, Huber, Hansen, Todd, Evans & Figel; Harold Lester Jr., of counsel at Vedder Price; and Paul Wolfson, a partner at Wilmer Cutler Pickering Hale and Dorr. Four federal government lawyers applied: Alan Burch, an assistant appellate counsel in the civil division of the U.S. attorney's office in Washington; Deborah Jeffrey, inspector general for the Corporation for National and Community Service's Office of Inspector General; and Vijay Shanker, acting deputy chief of staff in the U.S. Department of Justice's criminal division. Most of the applicants for Oberly's seat have applied for local judgeships in the past. The nomination commission is accepting feedback on the applicants through Nov. 22.

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The Morning Wrap

Hot Seat: Health and Human Services secretary Kathleen Sebelius appears today before the House Energy and Commerce Committee. House Republicans are expected to be harsh in their questioning at the hearing, which will help determine her future and perhaps whatever post-Obama administration public life she might have, Politico reports. Jury Duty: Prospective jurors who take the subway to D.C. Superior Court and exit near the National Building Museum see these words: "Good jurors nullify bad laws" and "You have the right to 'hang' the jury with your vote if you cannot agree with other jurors." Since the billboard went up, District prosecutors have been worried that the message could sway their cases, The Washington Post reports. Artistic License: The heirs of sculptor Alexander Calder have sued his trusted art dealer, claiming he surreptitiously held on to hundreds of Calder's works and swindled the artist's estate out of tens of millions of dollars, The New York Times reports. JPM Snag: Settlement talks between JPMorgan Chase and the government stalled after prosecutors rejected a deal that would allow JPMorgan to attempt to recover part of the costs from the Federal Deposit Insurance Corp., Bloomberg reports. Full House: The U.S. Senate on Tuesday confirmed venture capitalist Thomas Wheeler to head the Federal Communications Commission, and, as a commissioner, Mike O'Rielly, who had been an advisor to Senate Minority Whip John Cornyn, R-Tex., USA Today reports. Top Secret: Google has a mysterious project taking shape on a barge in San Francisco Bay - and wants so badly to keep it secret that it's required U.S. government officials to sign confidentiality agreements, Reuters reports.

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On Capitol Hill, Intelligence Officials Defend Surveillance

By Alex Zank Intelligence officials defended NSA surveillance during a House committee hearing on Tuesday. NSA employees "have taken an oath to defend this nation and protect our privacy," NSA director Keith Alexander said. "It's a privilege and an honor to work next to them every day." In a discussion similar to one conducted by the Senate Intelligence Committee in September, Alexander, along with director of intelligence James Clapper and deputy attorney general James Cole and others, testified before the House permanent select subcommittee on intelligence. Several protesters holding signs and wearing large sunglasses, representing what they considered the NSA's intrusive surveillance methods, were escorted out of the room. This comes only days after a rally was held on the National Mall, where thousands of people demanded an investigation and reform of the NSA. These events are all centered around the leaking of information earlier this year by NSA contractor Edward Snowden that revealed the intelligence organization was gathering phone record information of U.S. citizens. Snowden is in Russia, evading U.S. prosecution. The NSA took even more heat recently amid the contention the U.S. had tapped German Chancellor Angela Merkel's phone for at least a decade. Clapper, answering questions regarding espionage activities on U.S. allies, said it's expected that intelligence agencies in any nation will spy on other nations. Contact Alex Zank at azank@alm.com.

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Democrats, Republicans Spar Over D.C. Circuit

The day before the Senate votes on the first of President Obama's three nominees to a key federal appeals court, Republicans and Democrats held dueling events on Capitol Hill about whether appeals lawyer Patricia Millett should be confirmed to the bench. Democrats in the Senate held a press conference today to focus the debate on Millett's legal experience and character, arguing that the Akin Gump Strauss Hauer & Feld partner is well-qualified to sit on the U.S. Court of Appeals for the D.C. Circuit. Republicans in the House held a hearing to highlight the workload of the current D.C. Circuit judges, restating their view that Millett and two other nominees to the bench are not needed. Republicans in the Senate say Obama wants to tilt the balance of the court, whose non-senior judges are split evenly now between judges appointed under Democratic and Republican presidents. A vote set for Oct. 30 will reveal whether Republicans can block the Senate from voting on Millett, or whether Democrats have enough votes to overcome a filibuster. The result ultimately could determine the size of the imprint Obama's presidency leaves on the nation's courts. Millett needs 60 votes in the Senate to overcome a block and get an up-or-down confirmation vote, which means Democrats will need several Republican senators to join them. Senator Chuck Grassley (R-Iowa), who often leads the push against judicial nominees as the ranking member on the Senate Judiciary Committee, said today he does not know whether Democrats will have 60 votes. "I should know by tonight because they're taking a whip count, but I don't know that whip count. But I have reason to believe they won't get cloture," Grassley said. "That's my gut feeling. I'll have a better answer for you later on." At a press conference on the Hill today, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) stood next to a poster with a photo of a smiling Millett embracing her husband, who is wearing a Navy uniform. If confirmed, Millett, an Akin partner since 2007, would be the sixth woman to sit on the D.C. Circuit—a bench that's often considered the nation's second highest court. Leahy praised Millett's legal experience, which includes arguing 32 times in the U.S. Supreme Court. "If we were dealing with logic and honesty and what's best for the court, we'd have 100 votes," Leahy said. "I think it would be one of the worst black marks against the court, against the Senate, and a total disregard to the life of this woman if there were no votes." Leahy said a Republican block on the Millett vote could compel the Democrats to turn to the so-called "nuclear option." Under that scenario, Democrats would try to change long-standing Senate rules to strip the ability of Republicans to filibuster nominations. "I don't believe it will be, but if it were successfully filibustered, I think that the pressure to change the rules would be almost insurmountable," Leahy said. Republicans elaborated on their theory that President Barack Obama is trying to stack the D.C. Circuit—the court has three vacancies—to win more favorable rulings on federal agency administrative actions. Although the House Judiciary Committee does not have a say in the judicial confirmation process, Chairman Rep. Bob Goodlatte (R-Va.) held a hearing titled "Are More Judges Always the Answer?" and invited Grassley to testify. Goodlatte suggested that Obama and Senate Democrats view the courts as an opportunity to advance a political agenda. "When the Senate Majority Leader said, 'We're focusing very intently on the D.C. Circuit' and 'We need at least one more. There's three vacancies. And that will switch the majority,' he clearly wasn't referring to the court's needs," Goodlatte said.

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Reed Smith Adds Two Partners to Insurance Practice

Two Dickstein Shapiro insurance partners are leaving the firm to join Reed Smith. John Schryber and Andrew Weiner represent corporate policy holders in disputes against insurance companies. Schryber and Weiner have represented clients in a range of disputes—from environmental coverage, asbestos and professional liability to directors and officers liability, products liability and bankruptcy. In an interview with Legal Times, Schryber said Reed Smith offered a broader platform to better serve clients. Reed Smith reached out to Schryber about his interest in joining the firm, he said. Schryber said he'd earlier asked a Reed Smith lawyer "how things were going over there and by the time I was talking with people they had a good interest in me, so it was a bit of a coincidence." Schryber is taking clients—including Estee Lauder Inc., Ford Motor Co. and American Capital Ltd.—to Reed Smith. Schryber recently represented Estee Lauder in a breach of contract dispute with its insurer, OneBeacon Insurance Co. The cosmetic company was seeking $40 million in damages plus legal fees. "My basic philosophy is that every business problem should be covered by some insurance policy," Schryber said. "Corporate America leaves billions of dollars on the table every year in insurance money it did not know it had the right to." Reed Smith, like Dickstein, represents policy holders against insurance companies. "Our clients never have to worry about looking over their shoulder and wondering whether we have an agreement with an insurance company," Schryber said. "Clients are understandably nervous about law firms who simultaneously represent insurance companies and policy holders." Before joining Dickstein in 2010, Schryber was a partner at Patton Boggs in Washington, where he established the indemnification and cost recovery practice. Weiner formerly headed up Dickstein's fidelity and crime insurance practice. Several partners have left Dickstein in recent months. In July, five energy lawyers—including Larry Eisenstat, who led Dickstein's practice—joined Crowell & Moring. One month later, partner Richard Lehfeldt, who focused on energy and environment issues, and senior counsel Irving Yoskowitz, left Dickstein for Crowell. In February, Legal Times reported that Dickstein's 2012 gross revenue dipped 3.2 percent to $258.5 million. Last year, profits per partner increased by 3.8 percent to $950,000. "What I am particularly proud of as an organization from 2011 to 2012 we reduced our gross revenue and size and increased profitability," Dickstein chairman Michael Nannes said in an interview in September. "We were definitely smaller but more profitable." Reed Smith, which has about 1,500 lawyers—five times as many as Dickstein—posted profits per partner of a little more than $1 million for 2012. The firm's gross revenue exceeded $1 billion, which was up by 2 percent.

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The Perils of Keeping FCPA Infractions Under Wraps

Charles Duross, the deputy chief of the U.S. Justice Department's Foreign Corrupt Practices Act Unit, delivered an ominous message Monday to in-house lawyers at the Association of Corporate Counsel's Annual Meeting in Los Angeles: Failure to report potential bribery is more perilous than ever. Duross, who is based in Washington, D.C., said DOJ is handling a "pretty steady stream of cases," with every major U.S. attorney's office investigating alleged violations of the FCPA, which prohibits bribery of foreign officials. "The risk of getting caught . . . is greater today than any point previously," Duross said. "I think that's kind of a no-brainer." Affiliate publication Corporate Counsel has more.

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