Legal Pad

Sonoma Attorney Sanctioned $20,000 in Bankruptcy Case

[Ginny LaRoe]

A Sonoma lawyer is in hot water for his handling of a bankruptcy case.

Gregory Orton was hit with a $20,000 sanction after a U.S. Trustee turned up a Chapter 7 debtor's undisclosed asset of $61,250.

Oopsie.

On Heels of Deal with Toshiba, Rovi Goes After Sharp

[Amy Miller]

Looks like Rovi Corp. is serious about its patents.

Attorneys from McDermott Will & Emery in Menlo Park and Washington D.C. filed a complaint Tuesday for Rovi asking the International Trade Commission to begin an investigation against Sharp Corp. and two U.S. subsidiaries for patent infringement.

Santa Clara-based Rovi develops and licenses technology used in interactive program guides for televisions, set-top boxes and other devices. Rovi claims that several LCD televisions and Blu-ray players made by Sharp infringe three patents related to its guides and parental control technology and wants the ITC to ban imports of those products.

The complaint comes on the heels of a settlement agreement between Rovi and Toshiba Corp. announced July 12. Rovi, again represented by McDermott Will & Emery, had sued Toshiba last October in both Delaware federal court and in the ITC for infringement of three patents, one of which is also being asserted in the ITC complaint against Sharp.

The multi-year agreement resolved the suits and lets Toshiba use Rovi’s interactive program guide patent portfolio in its televisions, and Blu-ray players and recorders, as well as mobile devices. Details of the licensing agreement were redacted in court documents, and Rovi spokesperson Linda Quach declined to provide additional details.

Meanwhile, Rovi is also suing Amazon.com, Inc. and IMDB.com, Inc. in Delaware federal court for infringing five patents related to its electronic program guide technology. Attorneys from Durie Tangri in San Francisco are representing Rovi in that matter.

9th Circuit sides with felon in FOIA fight over confidential informant

[Ginny LaRoe]

A chemist turned convict sent to the pen in a big LSD bust got the Ninth Circuit U.S. Court of Appeals to side with him in a Freedom of Information Act fight over information about a confidential informant.

A panel on Wednesday, in a case of first impression, defined when a confidential informant is "officially confirmed" and therefore subject to disclosure under the FOIA.

The inmate, William Pickard, made an FOIA request in 2005, asking for all the dirty details -- criminal history, cooperation in other cases, any history of getting in trouble for lying -- of the CI who testified against him.

Despite the informant's identity having been revealed in open court during Pickard's trial, the DOJ denied the records request, refusing to acknowledge the existence of the CI.

"The government basically argues that federal law enforcement agencies should be able to develop a case for the United States Attorney, have their agents and confidential informants testify at trial in open court about the identity and activities of those confidential informants, but then refuse to confirm or deny the existence of records pertaining to that confidential informant," Judge Barry Silverman wrote.

The court, he said, "cannot abide by such an inconsistent and anomalous result."

However, the ruling doesn't mean the feds don't have other grounds on which to deny release of further information on the informant. The court said only that in this case, since the "cat is out of the bag," the government must proceed to the next step of the FOIA request by issuing an index of records. Then it can lodge any further objections to disclosure.

In a concurrence, Senior Judge Clifford Wallace chided the government for its silence on the meaning of "officially confirmed," saying had it promulgated a rule or regulation, the court could have afforded DOJ more deference.

Instead, the court has ruled in a way that could create a conflict between the interests of federal agents and prosecutors regarding an informant's privacy, Wallace wrote. The majority's holding means a prosecutors simple question in open court -- "did you serve as a confidential informant?" -- eliminates the privacy interest.

Wallace also beefs with the the DOJ's position that a press release is the only way to officially confirm a confidential informant. "To the DOJ¹s knowledge, no confidential informant has ever been officially confirmed in this manner. It is difficult to believe that Congress intended [the law] to be effectively inoperative," Wallace wrote.

Kim Zeldin of Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor in Sacramento handled the case pro bono for Pickard. San Francisco Assistant U.S. Attorney Neill Tseng argued the case for the Northern District.

San Berdoo Corruption Scandal Features Balking Lawyers, Willing Mediator

[Greg Mitchell]

Fascinating coverage from the Riverside Press-Enterprise on a corruption scandal stemming from litigation between the county and a land developer. The paper reports on grand jury transcripts in which Bill Postmus, the former president of the county board of supervisors, essentially says he took bribes to push for a huge payout to Colonies Partners at a time when he was trying to keep concealed his sexuality and growing addiction to meth.

The county's lawyers apparently fought the 2006 settlement every step of the way, arguing the claim was worth nothing or very little, and the Riverside paper says three law firms quit rather than be a party to it.

In the end, the paper reports, former California Supreme Court Justice Edward Panelli was brought in to mediate the dispute and got the parties to agree to a $102 million settlement, which was later approved by the board on a 3-2 vote. Several officials have been indicted and accused of taking hundreds of thousands of dollars of contributions from the developer in exchange for the settlement.

Panelli told the paper he'd done nothing wrong in mediating the settlement agreement, but said he could tell county representatives didn't see eye to eye. "It was a strange dynamic to see how the county operated," he said. "It seemed to me the county didn't have their act together. They weren't getting along, as I recall. They couldn't agree among themselves as to what they wanted to do. I said, 'Hey, you've got attorneys, talk to the lawyers.' "

Several witnesses testified that Panelli said he didn't want to hear the facts, but he told the paper that wasn't his job as mediator. He also defended his decision to return from the mediation on the developer's private jet, saying he had to cancel a commercial flight to continue a productive mediation session, and they'd agreed to pay his travel costs.

Visa Problem Can't Stop Lawyer From Addressing Asylum Access

[Scott Graham]

From 4,000 miles away in Quito, Ecuador, Nora Quinonez spoke of what it's like to be a refugee and a lawyer.

An attorney in her native Colombia, Quinonez began getting death threats and then an attempt on her life after she became involved in her hometown politics. She fled to Ecuador, and now works as a community legal adviser with Asylum Access, a San Francisco-based nonprofit dedicated to refugee rights, while also operating a local tourism business.

Quinonez had been scheduled to tell her story in person Thursday evening at Asylum Access' annual reception for staff and supporters at The Fairmont hotel. But because, like so many refugees, she doesn't have a passport or a bank account, she was denied a visa by the U.S. embassy. "In my reality, how could I have a bank account?" she said in Spanish via video message.

Ninth Circuit Reinstates "Don't Ask," but With Conditions

[Ginny LaRoe]

The Ninth Circuit U.S. Court of Appeals -- responding to an emergency motion by the Department of Justice — has temporarily reinstated a portion of a stay of an injunction barring the U.S. military from enforcing its nearly defunct "Don't Ask, Don't Tell" policy.

But the court specifically authorized the part of the injunction that halts the military from “investigating, penalizing or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”

Chicago Firm Spins Broad Porn Piracy Web

[Petra Pasternak]

A Chicago law firm is going after grandma and her alleged online porn habit.

The San Francisco Chronicle reports that Steele Hansmeier has filed a lawsuit against “Does 1-46” -– including one the Chronicle describes as a Bay Area widow in her 70s -- in U.S. District Court in San Francisco on behalf of Hard Drive Productions.

Steele Hansmeier accuses the Bay Area woman and scores of other “digital pirates” across the country of downloading porn illegally over BitTorrent. They’re being urged by Steele Hansmeier attorneys to settle with the originators of the content by ponying up several thousand dollars by credit card.

The Bay Area Jane Doe tells the Chronicle she has never downloaded porn and doesn’t even know what a BitTorrent is. She can’t afford an attorney to make her case, but she won’t settle either, she told the Chronicle. The Electronic Frontier Foundation describes such lawsuits as "copyright trolling," and EFF attorney Matthew Zimmerman said the porn allegations add a further "coercive element," the Chronicle reported.

Steele Hansmeier, which describes itself as a law firm dedicated to eradicating digital piracy, says on its website (wefightpiracy.com) that it focuses on representing content producers and creative professionals. It’s unclear how many lawyers it employs.

 

Judge Fogel Reversed, but Gently

[Ginny LaRoe]

If you're going to get overturned by the Ninth Circuit, it must be nice when it's done almost apologetically.

The court today reversed San Jose U.S. District Judge Jeremy Fogel's ruling in an education suit in which he had upheld a school's decision to deny special education to a struggling student, with two judges saying Fogel hadn't considered pieces of relevant information.

"This appeal comes to us after careful consideration by an able district judge," Senior Judge John Noonan wrote. "We disagree with his assessment only to the extent that we find one claim not addressed and one report not measured for its relevance."

Governor taps AG's J. Matthew Rodriquez to head CalEPA

[Cheryl Miller]

Gov.  Jerry Brown has turned once again to the attorney general’s office in his selection today of J. Matthew Rodriquez to head the state’s Environmental Protection Agency.

Rodriquez, 59, the chief deputy attorney general under AG Kamala Harris, will have a wide portfolio as the CalEPA secretary. The agency oversees water issues, air pollution programs -- including efforts to regulate greenhouse gases -- and toxics control.

Brother, Can you Spare a Dime?

[Cheryl Miller]

We’re still weeding through the Administrative Office of the Courts' staff recommendations for doling out $350 million in budget cuts. In the meantime, action is afoot at the Capitol in an attempt to ease some of the pain.

Lawmakers are working on a budget trailer bill that will ensure the judicial branch can keep collecting surcharges on civil filings that help fund courthouse construction. A poison “trigger” inserted in last year’s budget said that if the state grabs any of that money for non-construction purposes then the fees would be reduced proportionately. And this year the state grabbed plenty of that money -- $310 million to be precise.