Legal Pad

Recorder's 'At the Podium' Column Now With Video

[Scott Graham]

We're trying something new today with sibling publication The Recorder. We're presenting an edited highlight reel from a Ninth Circuit hearing to accompany today's At the Podium column on the argument.

In CTIA v. City and County of San Francisco, a trade association is trying to stop the city from forcing cellphone retailers to warn customers about the health risks from RF energy. After suggesting some revisions Judge William Alsup OK'd San Francisco's law last fall.

Andrew McBride and Vince Chabbria brought passion and energy to their arguments -- McBride so much that he spoke over the judges several times, while Chhabria drove one judge to a sarcastic rant .

The full hour-long hearing, which was recorded by the Ninth Circuit, can be viewed at the court's website here. The judges, left to right, are Mary Schroeder, Consuelo Callahan and Edward Korman.

Federalist Society Mourns the One That Got Away

[Scott Graham]

A sense of gloom hung over this week's meeting of the San Francisco chapter of the Federalist Society.

"I think it's appropriate to talk about the five stages of grief," said chapter president David DeGroot, introducing the society's annual U.S. Supreme Court roundup on Monday.

The reason for the angst could be summed up simply: Chief Justice John Roberts' opinion in National Federation of Independent Business v. Sebelius, the Affordable Care Act case.

"This is the first meeting I've been at where somebody other than me is being hung in effigy," said UC-Berkeley law Professor John Yoo, one of the panel presenters.

Yoo and DeGroot were exaggerating, of course. But not by a lot. The disappointment and sense of betrayal among the 150-plus conservative/libertarian lawyers in the room was palpable.

Yoo said his takeaway from the ruling is that "the growth of the welfare state will not stop. There has been no fundamental change in the boundaries." Although a majority of the court did narrow Congress' power under the commerce clause, it unwound that holding by broadening Congress' power to influence behavior via taxes. So while the government may not be able to force people to buy solar panels, for example, it could say, "If you do not buy solar panels we will tax you $10,000 a year until you do," Yoo said.

Yoo's Berkeley colleague, Professor Jesse Choper, said he counted 33 Supreme Court opinions last term with constitutional implications. Excluding 10 that were unanimous or could not be characterized as liberal or conservative, Choper said the court's conservative wing prevailed in 14 and the liberal side won nine.

"I'd say that's fairly good for a liberal minority," said Choper, who describes his own politics as independent.

"I think conservatives lost all the major cases of the term," said Yoo, "which I agree is extraordinary."

Ninth Circuit Kicks Prop 8 Video Issue to Ware

[Ginny LaRoe]

The weighty issues of the Prop 8 case may be at the appellate courts, but the spotlight is about to shine on the judge inheriting the historic gay marriage case in the court below.

The first order of business for U.S. District Chief Judge James Ware? Judging the Prop 8 judge. Ware is being asked to scrutinize some of the work of his former colleague on the bench, Vaughn Walker, who left earlier this year after striking down the ban.

Web Has Made First Amendment an Anachronism, Kozinski Says

[Scott Graham]

Alex Kozinski came to Golden Gate University School of Law on Monday to praise the First Amendment — and to bury it.

Appearing as part of the school's Distinguished IP Speaker series, the Ninth Circuit's chief judge argued that technology has rendered the First Amendment obsolete. As incidents ranging from Wikileaks disclosures to Barbra Streisand's house have demonstrated, it's no longer possible for the government or individuals to suppress speech in an age of distributed self-publishing via blogs and social networks.

"How do you sue a blogger who may be anonymous, or may be posting from Uzbekistan?" Kozinski asked. "And assuming you somehow get service of process and prove that he acted with malice, so what? How do you collect a judgment against a guy whose principal assets are an iMac and a genuine autographed poster of ZZ Top?" (See a video clip of Kozinski making his point here and Monica Bay's report on the lecture here.)

Email 'Oops' Ends with Gordon & Rees Being Booted from Case

[Greg Mitchell]

It’s great the way email software autocompletes addresses for you. Except when it puts in the wrong one.

That’s what happened to Braun Hagey partner J. Noah Hagey. But it wasn't a total disaster, as it kicked off a chain of events that culminated last week with an eye-popping protective order (read it here) booting his opposing counsel and in-house lawyers off a case in federal court.

Here’s what happened. Hagey represents a handful of engineers in Oakland who in September left engineering and design firm Arcadis to start their own shop. Apparently worried their former employer would try to interfere, they hired Braun Hagey and later conferred by email -- with autocomplete inserting an old Arcadis address for one of the former employees. So four message threads, including one attaching a draft declaration, were delivered to Arcadis, where an email monitoring system routed them to legal.

In a declaration, Hagey said the plaintiffs didn’t realize their emails had been intercepted until lawyers at Gordon & Rees filed a counterclaim that references the day the former employees held a meeting -– a date, he said, Gordon & Rees could only have learned from the emails. Reached Wednesday, Hagey declined to comment publicly.

In a declaration, Elizabeth Spangler, an inhouse lawyer at Arcadis, acknowledged receiving the threads and reviewing the draft complaint -- at which point she says she realized the material was probably privileged. She says, however, that there were no great revelations in the material, and she didn’t share it with anyone. She did say, though, that she must have inadvertently given Gordon & Rees the date on which the exiting employees met. She also said she later learned her boss, Arcadis’ General Counsel Steven Niparko, had also briefly reviewed the email.  

On Dec. 17, U.S. District Judge Jeffrey White ordered that Arcadis replace Gordon & Rees with new, untainted counsel. He also ordered Spangler off the case, and said the GC must be “removed from all aspects of the day-to-day management." And he ordered Arcadis to pay fees and costs of $40,000.

Kenneth Strong, one of the Gordon & Rees partners on the case, said he couldn’t comment. Arcadis is now represented by John Picone III at Hopkins & Carley, who didn’t immediately return a call Wednesday.

Arizona's Murguia Confirmed to Ninth Circuit

[Scott Graham]

U.S. District Judge Mary Murguia of Arizona was among the five latest judicial nominees gaining Senate confirmation as the lame duck session of Congress wound down Wednesday, our sibling publication The Blog of Legal Times reports.

Murguia, who was nominated to the Ninth Circuit U.S. Court of Appeals in April, will fill the vacancy created when Judge Michael Daly Hawkins took senior status.

Also of note, U.S. District Judge Kathleen O'Malley of Ohio was confirmed to the Federal Circuit.

 

Liu, Chen Are Dealt Out in Confirmation Deal

[Ginny LaRoe]

President Obama’s judicial nominees from the Bay Area are too controversial for confirmation.

That’s the word from Washington, the Associated Press is reporting.

In a deal with Senate Republicans, at least 19 of the president’s picks will win approval before Congress breaks. In exchange, Democrats won’t call for a vote on four of the picks that conservatives have groused most about.

San Francisco Magistrate Judge Edward Chen and UC-Berkeley School of Law professor Goodwin Liu are among the four.

Cyrus Sentencing Closes Book on Page Street Gang Case

[Ginny LaRoe]

The Joseph Russoniello days are over, but the way certain criminal prosecutions were handled under his tenure still gets defense attorneys fired up.

That was evident today during the sentencing of convicted Page Street gang member Dennis Cyrus. While U.S. District Judge Maxine Chesney worked her way through complicating sentencing matters involving numerous life terms and disputes over newly discovered evidence, gang prosecutors and the a pair of defense attorneys mostly kept things civil and moving along.

But when Chesney noted she wasn’t convinced Cyrus had accepted responsibility for his actions, defense attorney James Scott Thomson seemed to erupt. “He offered to give up his life so that no one would have to go trial,” the defense attorney said, before engaging in a little rant about Russoniello’s handling of gang cases.

Prosecutors Want to Ditch Remainder of Economic Espionage Case

[Ginny LaRoe]

Looks like the U.S. attorney’s office wasn’t willing to risk another loss in a novel economic espionage case that ended badly for prosecutors last year.

The office today moved to dismiss the remaining charge against two Silicon Valley engineers, Lan Lee and Yuefei Ge, who were accused of stealing trade secrets from their employer, NetLogic Microsystems, and trying to commercialize them with venture funding from the Chinese government.

After a three-week trial last November, a jury acquitted the pair on two counts and deadlocked on three others, prompting U.S. District Judge James Ware of San Jose to later junk two of the three lingering counts. Ware kept in play one trade secret count, on which jurors had divided 6-6. With Ware’s approval, that count will now be history too.

Ge’s attorney, Edward Swanson of San Francisco’s Swanson & McNamara, said: “This is the right result, and we appreciate the prosecutor being willing to take another look at the case.”

Of course, there’s a new U.S. attorney in charge now.

State Bar Notebook: Starr and Amar on Scotus

[Scott Graham]

Samuel Alito had the most successful term of any U.S. Supreme Court justice last year, when measured by 5-4 opinions authored, according to Baylor University President Kenneth Starr.

"He may not be your MVP, but he was the term's MVP," Starr, the former D.C. Circuit judge and Whitewater prosecutor, told a roomful of California lawyers at the State Bar convention Saturday in Monterey.

Starr and UC-Davis constitutional law professor Vikram Amar broke down recent developments at the court, with the two agreeing that Justice John Paul Stevens' departure won't have as much impact as some observers have suggested.

When he clerked at the court in the early 1990s, Amar said, he didn't think of Stevens as a liberal or a leader. Rather, he regarded him as intellectually independent, and more of a maverick than a coalition builder. Plus the current court is "the most intellectually confident" he's seeing during his career, meaning it's unlikely there are any votes to be wooed via charm offensive.

Starr noted that Stevens, who served on the court for 35 years, succeeded William Douglas, who served for 36. "So if history is any guide," Starr half-joked, Stevens' successor, Elena Kagan, "will serve until the year 2045." He applauded President Barack Obama for reaching outside the federal courts for a nominee, a move he said was overdue.

Looking ahead, both academics expressed doubt that recently enacted health care legislation would be struck down by the court. Starr said he expected a fight within the court, but that right now the vote would probably be for upholding.

Amar noted that the two big federalism decisions of the Rehnquist court, striking down the Violence Against Women Act and a gun-free zone around schools, didn't implicate interstate commerce as broadly as health insurance does. While he said he wasn't predicting what the court would do, "if they strike this down that will be somthing very differnt than the Rehnquist court ever did."