Legal Pad

Bea Takes One for the Team at Antitrust Debate

[Scott Graham]

Say this for Ninth Circuit Judge Carlos Bea: The man honors commitments.

A former Olympic athlete, Bea owns box seats to the San Francisco Giants. But on the same night Pablo Sandoval was making history in Game One of the World Series, the judge made good on a promise to moderate a debate on antitrust law at the Federalist Society.

If Bea didn’t seem quite as cheerful as his usual self, joked San Francisco chapter president David DeGroot, it was because he’d sacrificed his ninth row tickets.

“Thank you David,” Bea smiled, “and we won’t say anything more about those tickets.”

While the debate could never compare with an 8-3 thrashing of the Tigers, it was pretty lively. The subject was the FTC’s antitrust investigation of Google for allegedly using its dominant position in search to manipulate results for profit.

Ronald Cass, a former dean of Boston University School of Law and ex-ITC commissioner, said it’s folly for regulators to try to predict where competitive forces will lead. Until just recently, nobody imagined that the markets for cellphones and cameras would converge, for example. “This is the nature of change,” said Cass, of Virginia's Cass & Associates. So its counterproductive to penalize Google for building a top search franchise when it just as likely might get disrupted by Facebook, Siri or some other technology yet to be envisioned.

Covington & Burling partner Thomas Barnett said that may be true in the long run, but “in the long run, as Keynes said, we’re all dead.” In the meantime, Google should not be allowed to use its dominant position to deceive users by directing them to paid advertisers or Google affiliates like YouTube, while threatening to shut out rivals like Yelp who object to Google scraping their content, said Barnett, a former assistant attorney general for antitrust who acknowledged that he now represents some Google competitors.

As for Judge Bea’s choice of venues, Barnett joked that he was “honored but saddened to question the judgment of a U.S. Court of Appeals judge. It is indeed an honor to be here and I very much appreciate your sacrifice.”

It's All About the Cheese

[Cynthia Foster]

Eighteen residents of tiny Del Norte County crammed into a State Bar Court waiting room Thursday morning, waiting their turn to be called to testify to the character of their district attorney, who’s been accused by the bar of corruption.

The crew of small-town politicians, farmers and community activists traveled the 355 miles from Crescent City, which one local reporter called “the Wild West,” to tell State Bar Judge Lucy Armendariz that DA Jon Alexander is a good man who doesn’t deserve to be disbarred for personal financial dealings with local law enforcement and members of the Del Norte bar.

Alexander, a former meth addict, has done worlds of good for the poor and embattled county, witnesses said, in helping free it from the clutches of pervasive meth abuse.

“We have a lot of people that are not productive in society and don’t function well. When I heard Jon Alexander’s story, and I saw him rising through the ranks in our community, I think he’s a bit of a godsend,” said Blake Alexandre, a local dairy farmer who testified fourth.

But State Bar prosecutor Donald Steedman appeared to try to poke holes in Alexandre’s familiarity with the DA on a topic close to the farmer’s heart — cheese.

“Do you know Mr. Alexander’s favorite kind of cheese?” Steedman asked Alexandre, who is not related to the DA.

Alexandre guffawed from the witness stand. “I don’t have any idea,” he said.

Another member of the folksy group seemed anxious to counter Steedman’s attempts to paint Alexander’s loans among members of the legal community as signs of corruption, but prosecutors didn’t appear to be aware of her readiness. Despite the fact that local activist Martha McClure had already told Armendariz that she’d read closely through the bar’s charges against Alexander and the corresponding rules of professional conduct, prosecutor Linda Yen asked McClure what she’d done to prepare for the hearing.

McClure took the opportunity to go point by point through the prosecutor’s charges and the rules of professional conduct, disputing at every turn that Alexander’s behavior rose to the level of misconduct. The testimony went on for several minutes, uninterrupted.

According to Alexander and his lawyers, led by Kurt Melchior of Nossaman, the bar has unfairly taken the side of Alexander’s political rival in a fight for power that dates back many years.

Alexander is scheduled to take the stand on Monday to testify that he was not trying to thwart the outcome of criminal cases when he made a $14,000 loan to a local probation officer or took a $7,000 loan from a local defense attorney for hair transplant surgery. In the meantime, 18 more character witnesses are scheduled to take the stand on Friday.

Alexander could face disbarment if the charges are upheld. He’s filed suit against the bar alleging defamation in San Francisco Superior Court and is seeking unspecified damages.

 

Percolating Problem: Appeals With No Trial Records

[Scott Graham]

The big legal issues du jour get thrashed out at the concurrent State Bar and California Judges Association conventions each year. But what will be the issues of the next jour?

A potential big one that surfaced a couple of times at the conferences in Monterey this weekend were the disappearing court reporters phenomenon and the monkey wrench it could throw into appeals.

California's Rules of Court require that a transcript of proceedings be filed with writ petitions, noted Susan Horst, a senior writ attorney at the First District Court of Appeal, during a Saturday program on writ practice. It's unclear how the appellate courts will treat the rule when proceedings weren't transcribed, she said. In the meantime, she encouraged counsel to bring a reporter to court whenever appellate review could be in the offing.

A similar concern was aired at a CJA program on making record for the appellate courts. When former Supreme Court Justice Carlos Moreno emphasized the importance of putting settlements on the record, a judge in the audience asked what he would do if there's no reporter on hand to create the record.

He and Moreno, who is now of counsel at Irell & Manella, agreed that the parties would probably need to type up an agreement and sign it.

New CJA President Hungers for Judicial Unity

[Cheryl Miller]

Maybe it was the approaching lunch hour. Maybe he was just hungry when he wrote his speech. Whatever the reason, new California Judges Association President Allan Hardcastle delivered an inaugural address Saturday that was well-spiced with dining analogies.

On the judiciary’s shrinking budget: “My mother used to tell me that the table manners changed when the pie got smaller. That’s so true,” the Sonoma County Superior Court judge told a receptive gathering of State Bar and CJA leaders in Monterey. “And that pumpkin pie we used to have? It’s looking like a three-day- old Pop-Tart to me right about now.”

And on the need for judges to “unite” against state budget cuts: “Like a family coming home for Thanksgiving, we must ensure that the front door is open, and we must ensure that everyone gets a seat at the table. And once they’ve gotten that seat at the table, we need to ensure there’s adequate food on the table to feed everyone.

“Once we win that goal, then there’ll be time to discuss whether two years ago mom should have used the stainless steel flatware or the sterling silver flatware,” Hardcastle continued. “Only when everyone’s at the table and their needs are met should we have a debate about whether the dinner fork goes on the right or the left.”

Some judges may not find Hardcastle’s message so palatable. Critics, most notably the Alliance of California Judges, have described the call to quell dissent as stomach-churning. Hardcastle, a Harley-riding Army veteran, has the next 12 months to make his plea bear fruit.

 

Perfecto Evening for Cigar-Loving Jurists

[Scott Graham]

It was easy to find the Blacksmoke cigar appreciation event at the California Judges Association meeting Friday evening. All you had to do was follow your nose.

The pungent gathering drew about 50 judges to a hotel plaza overlooking Monterey Bay. At least, we think it was about 50 -- it was hard to see through the haze. (OK, we exaggerate. Somewhat.)

The festivities were held in abeyance momentarily as the group honored the memory of Matthew Manoukian -- son of one of the Blacksmoke organizers, Santa Clara County Superior Court Judge Socrates "Pete" Manoukian. Matthew Manoukian died last summer while serving as a Marine captain in Afghanistan. Just six months ago, he had shared a smoke with many of the same jurists at CJA's mid-year meeting in Indian Wells.

Los Angeles Superior Court Judges Tim McCoy and Lance Ito presented Judge Manoukian with a statue of a Marine bearing a flag, and about 15 jurists wore t-shirts emblazoned with the younger Manoukian's likeness.

Judge Manoukian said his son didn't try to draw a lot of attention to his service, but was especially proud that millions more Afghan girls are going to school now than under the Taliban regime.

 

Tech Workers Challenging Anti-Poaching Pacts Petition Koh

{Amy Miller]

Lawyers for a group of software engineers accusing Apple, Google and five other tech stalwarts  of entering into "gentlemen's agreements" not to compete for each other's employees filed a heavily redacted class certification motion on Monday. 

The former employees asked U.S. District Judge Lucy Koh of San Jose to certify a class of more than 100,000 salaried workers employed by the companies between 2005 and 2009.

“Plaintiffs have evidence capable of demonstrating that the compensation of all class members was suppressed due to the alleged conspiracy,” wrote plaintiffs attorney Kelly Dermody, a partner at Lieff Cabraser Heimann & Bernstein, in the 33-page motion.

The motion also asked Koh to certify Lieff, Cabraser and the Joseph Saveri Law Firm as co-lead class counsel.

The suit was filed on the heels of a 2010 settlement between the defendants and the U.S. Department of Justice, which found that their agreements not to cold-call each other's workers did violate federal antitrust law. The companies admitted no wrongdoing, but they agreed not to enter into similar agreements in the future.

'Bridges' Star Is Saved by the Toll

[Scott Graham]

If it seems like ages since the TV show Nash Bridges was airing regularly, that's because it is. The last regular season episode aired in 2001.

So when show star Don Johnson sued in 2009, saying he was still owed millions of dollars, the production company quite naturally raised the statute of limitations. Unfortunately for Rysher Entertainment and subsequent owners Mark Cuban and Todd Wagner, Rysher had agreed to toll the statute of limitations way back in 2002.

Although the California Code of Civil Procedure requires that waivers of the statute of limitations be renewed every four years, the same rule does not apply to tolling agreements, a divided California Court of Appeal ruled Monday in Don Johnson Productions v. Rysher Entertainment.

That issue of first impression will be worth $15 million to Johnson, who claims 50 percent ownership of the copyright, along with his guaranteed income of $167,000 per episode and 50 percent of the show's profits.

Silence on the line

[Cynthia Foster]

San Mateo Superior Court has $9 million in the bank, but court officials are announcing their intent to lay off court commissioners and shutter courtrooms all the same. If state funding to county courts doesn’t increase by July 2013, they say, they’ll have no choice but to make dramatic cuts that echo those already made by neighboring counties like San Francisco.

The proposed cuts, detailed in a press release circulated Thursday, include plans to shut six courtrooms and lay off all but one of the court’s seven commissioners.

According to new state law, courts are required to spend down any reserve funds by 2014, a point that is particularly sore with San Mateo Presiding Judge Beth Freeman.

“We saved that money; it’s not like an inheritance,” Freeman said in an interview Friday. “Those reserves allowed us to be an innovative court.”

According to Court Executive Officer John Fitton, San Mateo Superior “would’ve had a balanced budget if the cuts had not continued and deepened” during the last legislative session. Since the 2010-2011 fiscal year, Fitton said, the court’s revenue has dropped nearly $9 million.

Fitton said the court announced its budget cut proposal so far ahead of time in part to make the public aware of the court’s future financial straits before Californians vote on Gov. Jerry Brown’s tax plan in the November general election.

Freeman said although she believes the Administrative Office of the Court and Judicial Council have taken steps toward being better, more responsible advocates for trial court funding, “we haven’t gotten the results we wanted.” Like many other judges throughout the state, Freeman points to “mistakes” made by previous AOC administrations in spending decisions. When asked if she was referring to the court’s controversial efforts to centralize electronic court records through the computerized California Case Management System, Freeman said unequivocally that she was.

“I have great respect for the direction the chief justice is going,” she said, “but I say that in full recognition that the AOC has made very serious misjudgments in the past.”

Both Fitton and Freeman said the cuts will have serious impact on citizens of the county. Fitton said that budget gaps are already noticeable around the court. In the traffic division, for instance, it formerly was “standard” for staff to pick up the phone by the third ring. Now, he says, the public waits up to 45 minutes to speak to someone, because court staff has shrunk 30 percent in four years.

“We used to take great pride” in picking up the phone, he said.

Now, court officials caution, there may be even longer silence on the line.

Patent Myths Debunked

[Amy Miller]

There’s a perception among patent litigators that speedy patent trials, especially in the Eastern District of Texas, usually wind up favoring the party that is suing for infringement.

But it turns out, the length of a trial has no effect on the outcome, Stanford Law School Professor Mark Lemley reveals in his latest patent litigation study, “Rush to Judgment? Trial Length and Outcomes in Patent Cases,” which he presented Friday at the first annual Empirical Patent Law Conference at Cornell Law School.

It’s just one of several findings that Lemley made after collecting data on every U.S. patent trial between Jan. 1, 2000 and June 30, 2011.

Trials that ended in favor of patent owners took on average 7.76 days, while those ending in favor of defendants took 7.74 days.

“The biggest surprise was that trial length doesn't make any difference at all, even though patent lawyers all seem to think it does,” Lemley said.

The study, which has yet to be published, also found that juries are more favorable to patent owners than judges are.

It also uncovered some variations from district to district, such as that patent owners win more often before juries in the Eastern District of Texas and the District of Delaware than they do in the Northern District of California. But the differences weren’t enough to conclude that the district where a case is tried significantly affects the likelihood that the jury will find in favor of the plaintiff.  

“If the length of a trial doesn’t skew outcomes, one might reasonably argue that long trials are a waste of party and judicial resources,” Lemley wrote. “Far from a rush to judgment, a quick patent trial may produce the same outcome more quickly and cheaply.”

Arizona AG: Request to Recuse Graber Untimely, Unfounded

[Scott Graham]

The Arizona attorney general's office is defending Judge Susan Graber -- and its most recent death penalty win -- saying there's no reason the judge should recuse herself from the case of murderer Kevin Miles.

The Arizona federal defender moved for Judge Graber's recusal last week, saying the facts of Miles' case bear a strong similarity to the 1974 carjacking murder of Graber's father, Julius. A lay observer would "entertain a significant doubt as to Judge Graber's impartiality," Assistant Public Defender Timothy Gabrielsen wrote.

Assistant Attorney General Jonthan Bass fired back Wednesday, saying the motion was untimely -- coming a month after Graber and another judge denied Miles' petition for habeas corpus -- and unfounded.

"Miles did not move to disqualify Judge Graber until the panel ruled against him on the merits," Bass wrote. "The delay suggests that Miles is misusing the recusal statute for strategic purposes."

There's no authority for a judge's duty to recuse when a close relative has been a victim of a similar crime, Bass added. In any event, the murder of Judge Graber's father occurred "almost 40 years ago, 24 years before she was confirmed to this court" and 14 years before her appointment to the Oregon Supreme Court. "Since assuming the bench, she has ruled impartially in countless murder cases."