Legal Pad

Scalia Is a Hit at Hastings

[Kate Moser]

From the start of a Q&A with Justice Antonin Scalia tonight at Hastings College of the Law, he kept his rapt law school crowd in stitches.

Introduced as having long awaited his title of senior associate justice of the Supreme Court, Scalia quipped: "And that plus 75 cents gets you into the New York subway."

Prompted by Hastings constitutional law professor Calvin Massey, Scalia weighed in on a range of issues, including affirmative action, Bush v. Gore, televising Supreme Court arguments, and the role of his religious faith in his life and work. Hundreds of students, like 3L Trey Marshall (above right), packed the Louis B. Mayer auditorium for the talk.

One of the livelier themes was Scalia's defense of the textualist approach to the Constitution. The approach isn't perfect, he acknowledged. But he added it offers easy answers on issues as big as the death penalty and abortion. "I don't even have to read the briefs, for Pete's sake," he said. "If you are an evolutionist, you don't have any answers. Every day's a new day for the evolutionists ... Originalism isn't perfect, but it's so much more perfect than evolutionism."

"You do not need the Constitution to reflect the current society," he said later. If the current society wants to change something "... all you need is a legislature and a ballot box."

In a revealing moment, Massey asked Scalia about his saying once that certain times in human history are eras of genius. Eighteenth century America was an era of genius in government, he said, for example. What is our era's genius, Massey asked.

"Not every era is an era of genius," Scalia said. "The thing I worry most about is that we will never be a distinguished age if we don't believe in excellence."

Scalia seemed to enjoy himself throughout the talk. And he didn't appear to worry about his detractors. When Massey asked him why he seems to inspire great love or hate, he said: "I think my views are often misrepresented, and people have a misrepresentation of what I would do. As a result of which I often make a terrific impression because people expect me to have horns and a tail."

After Scalia left the stage flanked by uniformed officers and U.S. marshals, emcee and Hastings law professor Evan Lee  told the audience he was very proud of them. (Perhaps he had in mind other less copacetic law school receptions of the justice.) 

First Prop 8 Amicus Brief Raises Walker's Orientation

[Ginny LaRoe]

Before gay marriage foes filed their first brief to the Ninth Circuit U.S. Court of Appeals seeking to restore Proposition 8, both parties agreed to open up the matter to amicus curiae briefs.

Who would have the first say? A guy named Robert Wooten who wastes no time in making things personal, at least for Northern District Chief Judge Vaughn Walker, who in August delivered the landmark ruling calling Prop 8 unconstitutional.

“If the allegation that Judge Walker is a homosexual is true, [then] he has a personal interest in the outcome of the trial” and should have recused himself, the brief states.

And with that, the speculation over Walker’s sexual orientation is now apparently for the first time part of the court record.

Walker has not discussed his orientation publicly. And for the duration of the Prop 8 trial, the parties had stayed away from the topic — at least inside the courtroom.

So will the judge’s personal life be relevant in the appeal? One of the chief opponents of the ban thinks not.

“It’s a ridiculous issue,” says San Francisco Chief Deputy City Attorney Therese Stewart, who said it’s like saying a black judge shouldn’t preside over cases involving discrimination or race or a female judge hearing gender issues.

Wooten, who provides no address, phone number or indication of group affiliation in his two-page, typo-laden brief, says homosexuality is a “moral issue” of public interest, which “negates the requirement of ‘standing’ in the matter.”

Judge Chesney, Are You A Nerd?

[Dan Levine]

Just happened to be perusing one of Northern District Judge Maxine Chesney’s summary judgment orders today (as with copies of the New Yorker and the Economist, I know we all have a pile of Chesney opinions we’ve been meaning to catch up on). It is an employment discrimination case, and Chesney was evaluating whether a supervisor’s reference to “the dark side” had racial overtones.

Chesney thought not.

"'The dark side' is a well-known phrase in popular culture, having its origin in the first, 1977, ‘Star Wars’ film and pertaining to a dualistic philosophy,” she wrote. "See, generally, http://en.wikipedia.org/wiki/Dark_side_(Star_Wars) ("The dark side is portrayed as the evil aspect of the Force (by the Jedi Knights, who instead advocate using the light side of the force), the Manichean mystical energy which permeates the universe.")."

Fair enough, but Chesney’s recitation of Jedi theory seems a little earnest, don’t you think? Could this former prosecutor/state court judge/Northern District veteran have a secret vice? We’re not sure, but in case you feel the urge, Judge, check out Stormtroopers 365: One Year of Stormtrooping Action.

Judge's Single Sentence on EFF's Fred von Lohmann Causes a Stir

[Pam Smith]

CNET has a thought-provoking story -- you can tell because it's got one of those question-mark headlines -- about the head scratching and hand wringing prompted by this sentence in a recent decision by New York federal Judge Kimba Wood:

"[LimeWire founder Mark] Gorton states that another attorney, [von Lohmann], gave [LimeWire], including [former company CTO Greg] Bildson, confidential legal advice regarding the need to establish a document retention program to purge incriminating information about LimeWire users' activities," Wood wrote in her decision.

CNET says this all went down in the granting of summary judgment to the Recording Industry Association of America, in its long-running copyright fight against file-sharing service LimeWire. According to CNET, the ruling was 59 pages and ...

"Wood doesn't offer any further explanation or mention von Lohmann elsewhere in her decision. It's hard to say what she meant exactly. But to critics of EFF and von Lohmann, who come mostly from the pro-copyright camp, Wood's description of his advice confirms what they've suspected for years. They say von Lohmann has long provided tutorials to file-sharing services on how to break the law and get away with it."

But Fred von Lohmann denied any wrongdoing, CNET reports. And EFF wants the decision tweaked to get off his back, already.

"Providing advice to clients about document retention is something lawyers do all the time," von Lohmann said. "In discovery, there are a lot of documents, and clients need to understand what obligations they have about keeping documents and not keeping them based on what the law requires. That's a conversation lawyers have with clients who fear litigation is a possibility. I don't see anything particularly nefarious about this kind of a conversation with a potential client."

On Tuesday, Cindy Cohn, EFF's legal director, sent a request to Judge Wood asking her to modify her written decision in regards to von Lohmann. "We believe the materials in the record do not support the inclusion of the phrase 'to purge incriminating information,'" Cohn wrote. "As you may imagine, Mr. von Lohmann and EFF are concerned that his professional reputation has been put at risk."

We'll see what Judge Wood is willing to do when you ask nicely.

Holder Tours East Oakland

[Dan Levine]

Attorney General Eric Holder went deep into East Oakland Tuesday morning to promote the administration’s anti-gang efforts. Flanked by lots of uniformed cops -- and guys with earpieces -- Holder toured Youth UpRising, a facility that offers Oakland youth outlets like a dance and recording studio, career building classes, a skate park, and other positive services.

Holder held a short presser after his tour. Given that San Francisco’s drug lab woes are now causing problems in a federal death penalty case Holder personally authorized, will that give him pause before green-lighting another capital case based on state police work?

“That’s the toughest decision I have to make as attorney general,” said Holder, who personally opposes capital punishment but enforces it in his job. He didn’t deliver that talking point though. Instead, he pointed out that the Justice Department has a thorough review process in which defense lawyers are allowed to participate.

“To the extent there are problems with the investigation, those are obviously things we would take into consideration,” he said.

Prosecutors sought death for San Francisco gang member Dennis Cyrus due to three murders he committed. But a jury opted to give him life behind bars instead. Cyrus’ lawyers are asking for a new trial because some of the evidence came from San Francisco’s drug lab.

The government must also soon decide whether to seek the death penalty against six alleged MS-13 gang members. That case too was compiled with help from the city.

Novartis Pays Up, But Doesn't Admit to Bilking Government

[Cynthia Foster]

Big pharm giant Novartis has agreed to pay the federal government and 10 states a total of $72.5 million to settle a false claims lawsuit that was pending in San Francisco.

According to SF Appeal, the three-year-old lawsuit stemmed from a statement made by 3 former employees of Chiron Corp., which was acquired by Novartis prior to the whistle-blowing.

The lawsuit accused Novartis of submitting false bills to government health care programs for unauthorized (or "off-label") use of certain drugs.

California and nine other states will divide $29 million of the settlement between them. It's unknown how much California will receive.

Novartis confirmed the settlement, but did not admit any wrongdoing.

The False Claims Act (.pdf), passed to combat health care fraud, has enabled the Justice Department to recover approximately $2.3 billion since early 2009.

Judge Beeler Throws Most Excellent Party

[Dan Levine]

No surprise the Northern District of California needed an overflow room to house all the well-wishers who turned up for Laurel Beeler’s induction onto the magistrate bench Wednesday afternoon. Fifteen years as a federal prosecutor and service on enough professional committees to fell a lesser lawyer makes for a lot of contacts. 

But as speaker after speaker came forward to extol Beeler, it became clear the turnout had as much to do with what they described as her honesty, compassion and sense of justice -– along with some salsa dancing talent.

Bank Defends Overdraft Fee Policy, Lawyer Plays Along With Alsup

[Dan Levine]

Wells Fargo got to tell its side of the story this morning in consumer class action over the overdraft fees it charges.

Plaintiff lawyers from Lieff Cabraser accuse the bank of shuffling debit card buys and checks so that hapless customers’ highest transactions post first. That leads to way more fees Wells can slap on when accounts go into the red. But Covington & Burling partner Sonya Winner told U.S. District Judge William Alsup that plaintiffs have to prove bad faith, and that there were plenty of reasons other than getting fees that the bank operates the way it does.

ACLU Secures Release of Two Disabled Immigrants

[Cynthia Foster]

The ACLU has successfully jockeyed for the release of two disabled immigrants who had been detained by the government, illegally according to the ACLU, for five years.

After the ACLU filed suit against Immigration and Customs Enforcement in federal court last week, ICE officials determined it "appropriate" to release Jose Antonio Franco-Gonzalez and Guillermo Gomez Sanchez. Sanchez is a diagnosed schizophrenic and Franco-Gonzalez has "the mind of a child," according to the Orange County Local News Network.

Among other allegations, the ACLU claimed the two were denied due process during their detainment.

Ex-Brocade CEO Greg Reyes Found Mostly Guilty in Backdating Retrial

[Pam Smith]

A federal jury in San Francisco just came back with a backdating verdict against former Brocade CEO Gregory Reyes: Guilty on nine counts (everything but one conspiracy count).

It was the second backdating trial against Reyes: After he was convicted of 10 felony counts in August 2007 for backdating employee stock options at San Jose-based Brocade, he was sentenced to 21 months in prison and given a $15 million fine. But then the Ninth Circuit U.S. Court of Appeals threw out the conviction last year, saying prosecutors had misled jurors with false assertions during closing arguments.

Cooley Godward Kronish Chairman Stephen Neal led Reyes' defense team this time around. During the first trial, that role had been filled by Skadden, Arps, Slate, Meagher & Flom partner Richard Marmaro.

Reporter Kate Moser's still at court, but tells us the defense is planning to file a motion for a new trial, and will appeal if that's denied. We'll have a full story on The Recorder's Web site later this afternoon.