News from the world of BigLaw: Bingham McCutchen and McKee Nelson are headed to the altar. The firms announced Monday morning that the firms will be one as of August 1. The firm will retain the Bingham McCutchen name, not entirely surprising given that the deal doesn’t exactly represent a marriage of equals: Bingham has 1000 lawyers in 12 offices; McKee Nelson has 120 lawyers in New York and D.C.

Something else that’s not entirely surprising: that a deal involving McKee Nelson is happening at all. The firm was hit hard by the recession; especially in the steep dropoff in work related to mortgage-backed and asset-backed securitizations, practices in which the firm had created a nice niche. Click here for a blog post from last November on layoffs at McKee.

“This is the right combination at the right time,” said Bingham chair Jay Zimmerman, noting McKee Nelson’s strength in tax, financial regulation and capital markets. “Legal and regulatory lines are being redrawn and are intersecting in ways they never have before. . . . The opportunity for us to add McKee Nelson’s market-leading practices in financial institutions litigation, capital markets and tax is extraordinary. These are quite simply some of the finest lawyers in the profession.”

ADA, Okla., July 1, 2009 /PRNewswire-FirstCall via COMTEX/ -- Pre-Paid Legal Services, Inc. (PPD), reported new memberships produced and new sales associates enrolled for the 2009 second quarter. During the 2nd quarter of 2009, new sales associates enrolled decreased 3.6% compared to the second quarter of 2008. Memberships produced decreased by 9.1% while new membership fees written decreased by 9.3% and our active membership base decreased 3.9% compared to the comparable period of the previous year.

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MarketWatch.com Story

By this time next year, Omahans may be able to purchase fireworks within the city's limits, according to a city official.

There has been movement in city government to bring Omaha's fireworks laws on par with state regulations, said Ron Gerard, a spokesman for Mayor Jim Suttle.

State law permits consumer fireworks to be sold between June 25 and July 4, with restrictions. The state regulates the types of fireworks that can be sold — they can't be hot or in flames when they hit the ground.
In Omaha, all fireworks sales are prohibited. Omahans go to neighboring communities such as Papillion, Bellevue, Ralston and La Vista to purchase fireworks — or to Missouri to get the types that aren't legal in Nebraska.

AdvertisingIn the face of a tough economy and a city budget crisis, Omaha officials are considering allowing fireworks sales.

“If we could keep dollars here, why not?” Gerard said.

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Omaha.com - The Omaha World-Herald: Metro/Region

If you plan to shoot off some fireworks to celebrate the Fourth, you should follow the laws in your state. Otherwise, your celebration could come to an abrupt halt.

Warnings will most likely be issued for the first offense, depending on the severity of the complaint, and the fireworks are seized," said Columbia County sheriff's Capt. Steve Morris.

Richmond County police respond in a similar way.

On a second violation, citations carry a maximum $1,000 fine and year in jail, depending on a magistrate judge's order.

Police, however, say a first warning is usually all that's needed.

Georgia law allows sparklers, snappers, party poppers, glow worms and snakes. But fire*******s, torpedoes, Roman candles and any fireworks that shoot into the air before exploding are prohibited.

In the unincorporated areas of Aiken County, it's legal to shoot Class C fireworks, which include most items sold to consumers.

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Fireworks laws differ in Georgia, South Carolina 070309 - The Augusta Chronicle

Fireworks activities increase this time of year, and before you make purchases there are things you should consider. The National Fire Protection Association reports that there are more fires reported on July 4th than any other day in the year and that half of them are because of fireworks. Kentucky state law prohibits any item that produces a report, or has wings or fins intended to cause the device to fly, unless a display permit is obtained. Any device that has the terms “explosive,” “emits flaming pellets,” “flaming balls,” “fire*******,” “report,” or “rocket,” is illegal for the public to possess, sell or use in Kentucky.

A city of Elizabethtown ordinance details the requirements for those wishing to sell or use “display” fireworks and this information is available by calling the fire department at (270) 765-2121. Retail stands, wholesalers and all who wish to use “display” fireworks must have a permit and are inspected by fire department officials. Most people are unlikely to qualify for a permit in the area of training, and they often don’t have sufficient space for a compliant display.

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Know fireworks laws, safety rules - www.thenewsenterprise.com

The New York State Police has planned an Independence Day Traffic Safety Initiative to heighten the public’s awareness of the dangers posed by speeding, impaired driving and failure to properly use safety restraints. Starting today and running through Monday, July 6, patrols will pay close attention to motorists who may be violating any of these traffic laws.

“We have a commitment to protect all who are traveling on the highways this holiday weekend," said Major Christopher L. Cummings, Troop “A” commander. “If you are caught drinking and driving you will be arrested. We will not tolerate irresponsible driving behavior that puts others in danger."

Throughout the holiday weekend motorists should expect sobriety checkpoints and roving patrols committed to DWI enforcement.

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http://www.thebatavian.com/blogs/bil...fireworks/7418

If you're thinking about shooting off fireworks or firing your gun at random this Independence Day weekend, be warned: both the Dallas Police and Fire departments will be looking for you.

Extra police and fire prevention officers will be out in neighborhoods and at city parks and lakes looking for anyone with illegal fireworks or shooting off their guns.

Here is the press release explaining what authorities plan to do. Consider yourselves warned and Happy Fourth!

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CRIME Blog | The Dallas Morning News

Gov. Jon Corzine has formally joined the legal effort to overturn a federal ban on sports betting in New Jersey and 45 other states.

Corzine in June said he was throwing his support behind the lawsuit filed in March by Sen. Raymond Lesniak (D-Union), which claims the federal prohibition of sports betting discriminates against the 46 states where it is imposed.

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Gov. Corzine joins legal fight to overturn federal ban on sports betting - NJ.com

Michael Jackson's ex-wife Debbie Rowe is reportedly considering whether to fight for custody of the couple's two children.

The BBC News website asked Professor Scott Altman, an expert in family law from the University of Southern California, to explain the legal issues surrounding the custody battle.

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BBC NEWS | Americas | Jackson custody case: the legal issues

We’re going to round out the week, and send you LBers off to your weekend of fireworks, grilled meats and 30-SPF lotion, with a curious little tale from, appropriately enough, the Sunshine State.

The Florida Supreme Court ruled on Friday that Governor Charlie Crist (pictured), violated the state Constitution when he refused to fill an appeals court vacancy because all of the potential picks are white. Click here for the story, from the Miami Herald.

The somewhat strange outcome seems to have been largely the product of state constitutional procedure. ”The governor lacks authority under the Constitution to seek a new list of nominees from the JNC and has a mandatory duty to fill the vacancy,” Justice Jorge Labarga, a Crist pick, wrote on behalf of the court. ”While we applaud the governor’s interest in achieving diversity in the judiciary — an interest we believe to be genuine and well-intentioned — the Constitution does not grant the governor the discretion to refuse or postpone making an appointment to fill the vacancy on the Fifth District Court of Appeal.”

Crist said in a written statement that he was ”disappointed” with the ruling. But he would comply with the court’s opinion and choose a judge from the original list.

The kerfuffle began after appeals court judge Robert J. Pleus had to retire from the Daytona Beach appeals court due to his age. The nominating commission then interviewed potential candidates to replace Pleus and forwarded six names so that Crist could pick one to fill the vacancy. All six finalists are white — four males and two females. Every other judge on that bench is white.

Crist later wrote the commission chairman and asked for more candidates with a diverse background. The JNC responded by sending back the same six names. After Crist refused to act, Pleus sued and hired attorney Talbot ”Sandy” D’Alemberte, the former president of Florida State University, to press the case.

Justice Fred Lewis echoed the plain language of the Constitution during the arguments. ”I’m having difficulty, because the Constitution says shall,” Lewis said.



Law Blog You Tube Video of the Day: Of all the songs with Fourth of July in the title, (U2 has one; Aimee Mann has one; as do Mariah Carey and Galaxie 500), our favorite is X’s “Fourth of July.” Click here for a solo performance of the song, from the band’s frontman John Doe.



Have a happy one!

We haven’t done all that much on former Orange County, Calif., sheriff Michael Carona (click here, here), but a recent development in the saga struck us as interesting enough to highlight.

The quick backstory: In January, a federal jury acquitted Carona on mail fraud and conspiracy charges concerning allegations that he used his office to enrich himself. Carona was, however, convicted on witness tampering charges — specifically, that he urged a former assistant, Don Haidl, to give false grand jury testimony. Carona was sentenced to 66 months in prison in April, and ordered to start serving his sentence on or by July 24.

The main piece of evidence in the case was an audiotape that had been secretly recorded by Haidl in a meeting between the two men in August 2007. (In preparation for the meeting, federal investigators working alongside Haidl prepared bogus subpoena papers. Haidl brought them to the meeting, presumably to enhance the credibility behind the meeting’s ostensible purpose.)

The trial court judge, Andrew Guilford, ruled that the communication violated a California Rule of Professional Responsibility called the “no-contact rule,” which states that “[w]hile representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.” Judge Guilford, however, declined to order any remedy for the violation.

On appeal to the Ninth Circuit, Carona’s lawyer, Jones Day’s Brian Sun has argued that Guilford’s decision not to apply a remedy presents at least a “substantial question” on appeal — one which weighs in favor of keeping Carona out of jail pending his appeal and would presumably create the foundation of his substantive appeal. Click here for Sun’s motion.

On Monday, the government offered up its response, in which it claims that the meeting between Haidl and Carona fell into an exception to the no-contact rule. Click here for the government’s filing.

We’ll keep you posted on how this motion gets resolved; things could get interesting out in our native land, the O.C. (aka, “Behind the Orange Curtain,” as the haughty multitudes from LA and beyond sometimes say).

Our own Amir Efrati today delivered a nice Law Journal column, which asks the question: should immigrants who act in ways that seem ordinary in their homeland but are illegal in the U.S. be cut some slack by our criminal-justice system?

Once upon a time, the old rule seemed to be that ignorance of the law is no defense. But increasingly, some defense lawyers and academics are thinking norms from a defendants native culture should be factored into a defense.

Consider the example of Nary Chao (pictured). Prosecutors in Las Vegas charged the Cambodian mother with a felony after someone reported that she kissed her infant son’s genitals. After she argued her behavior was a sign of affection and was an accepted practice in her native country, prosecutors let her plead to a misdemeanor last year.

“Cultural issues are arising more frequently in the courts, and judges and lawyers need to be sensitized to recognize them,” says Delissa A. Ridgway, a federal judge on the U.S. Court of International Trade.

But critics of the defense say the law should be applied equally to all U.S. citizens and that juries shouldn’t be asked to assess immigrants’ guilt based on the defendants’ own standards. It is wrong for prosecutors “to treat one class of people differently from another class of people just because of their national origin,” says Cristina Johnson, deputy district attorney in Monterey County, Calif.

To date, state and federal appellate courts have provided little guidance on how lower courts should treat such defenses, and many trial judges continue to be skeptical. As a result, such defenses often don’t work.

“It’s very rare that you have a solid cultural defense for a case,” says Robert Langford, who represented Chao. Even he advised her to plead guilty to a misdemeanor despite having what he considered a valid defense. “I couldn’t afford to take it to trial, because of the prejudices of people in the United States.”

Yet, a jury can be convinced that heritage should be considered. In 2004, Yer Vang, a member of the Hmong ethnic group who emigrated to the U.S. from Laos, was charged with opium trafficking after police found more than 300 grams of the substance in his Rock Hill, S.C., home. His lawyer presented evidence that that amount of opium was less than an average Hmong tribesman from his country smokes in a year.

“It’s their version of Advil. They’ve been using this for 1,000 years,” says Mr. Vang’s lawyer, Chris Wellborn, argued.

It worked. “An all-white, predominantly Republican, South Carolina jury found him not guilty,” Wellborn said.

LBers, we’d love to hear your thoughts on this, but in light of the subject matter, would just ask you to keep your comments on the G-rated side.

Our old friend Dan Slater (who, for those new to our work, used to write this very Law Blog), a few minutes ago published a piece on the NYT’s Dealbook site entitled “In Praise of Law Firm Layoffs.”

After setting the stage with the backstory on the troubles experienced by BigLaw in the past 16 months or so, Slater gets to it, and really doesn’t hold back, calling the layoffs, salary-slashings and start-date deferrals “the best thing to happen to the legal industry in years.” Writes Slater: “Call it a blessing amid a recession.”

For starters, writes Slater, there’s a benefit to corporate counsel, “who for too long have been bilked by a law firm compensation model that leads lawyers to prioritize their “hourly quotas,” which determine year-end bonuses, over quality service.” He goes on: “Unfortunately, the same bar presidents and law firm managing partners who are in a position to do away with the billable-hour format are happy to write op-eds decrying the miserable tradition, yet are unwilling to lead the pack when it comes to taking action.”

But the real lucky ones, writes Slater, are the law-firm associates who’ve, yes, been laid off.

And what about all those 20- and 30-something associates who can no longer formulate excuses — * But I’m paying off my law school debt while I figure out what I want to do! — * to remain in the kinds of jobs that so many of my law firm friends describe as “soul-crushing”? For many lawyers at law firms, particularly those who spent the early part of their careers toiling in structured finance departments and contributing, in the end, nothing to nothing, this recession may be the thing that delivers them from more 3,000-hour years of such drudgery as changing the dates on securitization documents and shuffling them from one side of the desk to the other.

Like a relationship gone bad, clearly hopeless to everyone but the imprisoned, it often takes a forced exit to break the leash of inertia that collars so many smart law graduates to mind-numbing work. So don’t pity these people. What they needed all along was liberation. Now they have it.

U.S. District Court judge Deborah Batts followed up on her temporary restraining order from last month, and permanently banned publication of an unauthorized sequel to J.D. Salinger’s uber-famous novel, Catcher in the Rye. Click here for the NYT article; here for the opinion; here and here for previous LB coverage of the case.

Judge Batts ruled that the novel, penned by an American living in Sweden who used the pseudonym J.D. California, did not fit into the fair use exception in copyright law because the book did not constitute a critical parody that “transformed” the original. The book imagines a grown up Holden Caulfield, the protagonist of the original, wandering the streets of New York after having escaped from a retirement home.

Wrote Batts:

To the extent Defendants contend that 60 Years and the character of Mr. C direct parodic comment or criticism at Catcher or Holden Caulfield, as opposed to Salinger himself, the Court finds such contentions to be post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.

“I am pretty blown away by the judge’s decision,” said California, ne Fredrik Colting, in an e-mail message to the NYT. “Call me an ignorant Swede, but the last thing I thought possible in the U.S. was that you banned books.” His lawyer, Edward Rosenthal, said they would appeal. The lawyer for Salinger, Davis Wright Tremaine’s Marcia Paul, declined to comment to the NYT.

Add Orrick to the list of firms rethinking the associate experience.

The firm announced today it will no longer promote associates in lockstep fashion, according to their start date. Instead, junior lawyers will now be fitted into one of three slots: the “partner” track for gunners; the “custom” track for lifestyle-minded associates who plan to make partner in their own sweet time, or not at all, and finally the “career attorney” track for those who will focus on more mundane work, such as document review. (For the visually inclined, click here for a graphic of the three-tiered associate model.)

The way it would work is this: Most law grads will begin in the “partner” track, where they will toil for some period of time. Later, some percentage will either choose or be encouraged by the firm to move to the “custom” track. Many “career attorney” track lawyers will be hired into that role.

We caught up with Siobhan Handley, Orrick’s Managing Partner for Innovation (cool title!) and Laura Saklad, the firm’s Chief Lawyer Development Officer (ditto!), to learn a little more about what’s afoot at Orrick.

For starters, the new associate scheme may mean some “some reduction in how many people make partner,” Handley says.

The firm, however, is not immediately altering its associate compensation scale, even for associates who are bumped off the partnership track. But Orrick will adopt a new comp schedule in 2010. The “custom” track lawyers will be paid some amount less than the “partner” track lawyers. In addition, Handley says, bonuses will make up a larger percentage of associates’ overall compensation. Bonuses, she says, will not be tied as directly to hours billed as they were in the past. “Productivity will be considered [in awarding bonuses], but it will be considered along with other factors, such as efficiency and overall contribution to the firm,” Handley says. “The goal [of the new program] is not a reduction in associate compensation.”

The Orrick move is motivated in part by the same sorts of client pressures that prompted Howrey and Drinker Biddle to alter the way they train, compensate and bill associates, at least in the near term. (Here’s a post on Howrey and one on Drinker.)

Companies, in short, increasingly are fed up with associates. The young ‘ens just don’t provide enough bang for the buck, according to some in-house counsel, who grouse that they have been forced to bear too much of costs of training associates. The main culprits, of course, are law firms, which traditionally have viewed young associates as a profit center and have billed them out at more than they are worth. Firms, in short, now seem resigned to make less off the back of associates.

In late May, shortly after the California Supreme Court upheld Proposition 8, the voter-approved ban on same-sex marriage, two same-sex couples filed suit in San Francisco federal court, challenging Prop. 8 on grounds that it violated the U.S. Constitution. The lawyers in the case: heavyweights David Boies and Ted Olson.

At the time, as we blogged, the mere filing of the complaint stirred up some controversy, even among other Prop. 8 opponents, who fear that setting a case on the path to the U.S. Supreme Court may not be the best strategic move.

Well, on Tuesday, the case took a baby step closer to the Supreme Court when the judge assigned to the case, San Francisco federal judge Vaughn Walker, said that while he was inclined not to issue an injunction halting the application of the law, he was eager to set the case on a fast track to trial. Click here for the SF Chronicle article.

Trial? Trial, you say? We had the same question — figuring if there was ever a case that could be disposed of by motions, it was this one. But, according to this article in the San Francisco Chronicle, Walker said the case raises numerous issues that may need to be considered at a trial, including the history of discrimination against gays and lesbians and the intent and effects of the state constitutional amendment.

Attorney Brian Raum of the Alliance Defense Fund, representing sponsors of Prop. 8, said he sees no need for a trial. “We think this is an issue of law” that does not depend on disputed evidence, Raum said. For example, he said, questions of past persecution of gays and lesbians are irrelevant because Prop. 8 allows them to marry, as long as they wed someone of the opposite sex.

Olson and Boies argue that Prop. 8 violates the U.S. Constitution by violating both the Fifth Amendment’s Due Process right as well as the Fourteenth Amendment’s Equal Protection Guarantee.

Olson said he was pleased with Walker’s approach, even though the ballot measure will remain in effect.

“He’s taking the case very seriously,” Olson said. “We’re prepared, willing and able to move as fast as the judge is willing to go.”

When Richard Posner writes (which he does a bit more often than most federal appellate judges), people tend to sit up and listen. Which is why a recent post he did on the Becker-Posner Blog sent shudders down the Law Blog’s spine.

The topic that Posner tackles in a June 23 post is the newspaper industry. That is, why it’s struggling and what can possibly be done to save it.

At the end of the post, Posner writes:

As newspaper revenues decline, newspaper content becomes thinner and thinner–but by the same token so does the linked or paraphrased newspaper content found in web sites that have no affiliation with a newspaper. If eventually newspapers vanish, online providers will have higher advertising revenues (because newspaper advertising will have disappeared) and may decide to charge for access to their online news, and so the critical question is whether online advertising revenues will defray the costly news-gathering expenses incurred at this time by newspapers. Imagine if the New York Times migrated entirely to the World Wide Web. Could it support, out of advertising and subscriber revenues, as large a news-gathering apparatus as it does today? This seems unlikely, because it is much easier to create a web site and free ride on other sites than to create a print newspaper and free ride on other print newspapers, in part because of the lag in print publication; what is staler than last week’s news. Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

As you might imagine, it’s that last sentence which makes us a bit nervous, as such a regime — which would likely hinge on cutting back on the fair-use exception to copyright law — would, in turn, make our job vastly more difficult, and possibly lead to the end of the Law Blog, at least in its current form (as well as other popular blogs we imagine you frequent, like Above the Law, How Appealing, the ABA Journal).

For instance, in order to do this post, we’d have to check in with Posner not only for permission to link to his, but for permission to even paraphrase his argument.

Of course, the Law Blog might still exist under such a system, but it would likely have to rely solely on originally reported material and originally generated opinion. Not that that would be a bad thing, necessarily, but we’d likely sacrifice some breadth for depth. And we’re not even sure that what we could provide at that point would even be a blog, per se, but something more akin to a web-based publication. Again, not that that would be a bad thing . . .

LBers, any thoughts?

A judge has revoked bond for Texas financier R. Allen Stanford, who’s charged with swindling investors out of $7 billion. Click here for the AP story.

U.S. District Judge David Hittner on Tuesday approved a request by prosecutors to overturn a magistrate judge’s decision to allow Stanford freed on $500,000 bond pending his trial.

Prosecutors argue that Stanford’s international ties make him a serious flight risk. Stanford holds dual U.S. and Antiguan citizenship, has an international network of wealthy acquaintances who would help him and possibly access to vast wealth hidden around the world.

But Dick DeGuerin, Stanford’s attorney, says his client is penniless, has never tried to flee and wants to fight the charges against him.

While much of the legal world had its eyes trained either on all-things Madoff or all-things Scotus on Monday, the attention of two groups of lawyers down in Marshall, Texas were presumably focused elsewhere, namely, on whether a jury would return with a verdict in a huge patent case involving Johnson & Johnson and Abbott Laboratories.

When the jury did hand down its verdict, the collective anxiety presumably turned to glee for the J&J lawyers, a group from Woodcock Washburn, led by Dianne Elderkin, and disappointment for the Abbott Labs crew, from WilmerHale, led by Bill Lee. The jury awarded a unit of J&J, called Centocor, $1.67 billion for infringing a patent on J&J’s drug Remicade that helped Abbott create the Humira arthritis drug. The verdict represented one of the largest damages awards in U.S. history. Click here for the WSJ story; here for a report from the WSJ’s Health Blog; and here and here for reports from Bloomberg and the AP, respectively.

In the lawsuit, filed in 2007, J&J accused Abbott of using patented technology that had been exclusively licensed to J&J from New York University, claiming that Abbott had developed Humira with it. Abbott argued that Humira was novel and fully derived from human DNA, whereas J&J’s Remicade is partially derived from mouse DNA.

According to Bloomberg, Humira is approved for six conditions, including the skin disease psoriasis and Crohn’s Disease, an inflammation of the bowel. The largest number of prescriptions is for rheumatoid arthritis.

Abbott said it would appeal the verdict.

Let’s take care of some unfinished business this morning, and revisit just one of the half-dozen or so interesting things to happen at the Supreme Court on Monday, the last day of the 2008-2009 term. First, click here and here for the letters read aloud on Monday by Chief Justice Roberts and David Souter concerning Justices Souter’s retirement. (The Robert Frost allusions are a nice touch, wethinks.)

When the smoke lifted yesterday, some commentators seem to think that one of the biggest decisions was not, in a strict sense, a decision at all: the court’s decision to rehear the Citizens United case in the late summer.

Narrowly construed, the case involves whether a documentary made by Citizens United, a conservative group about Hillary Rodham Clinton, violates the McCain-Feingold campaign-finance law. The film, made during the runup to the 2008 presidential election, aired in some theaters, but not widely, due to an adverse ruling from the FCC.

But rather than rule on that rather narrow question, the court asked the parties to argue a much broader question: whether recent precedents upholding restrictions of corporate spending on political advertisements should be overruled. In the pronouncement, the court hinted at a willingness to overrule much of the existing law on campaign finance. Click here and here for the WSJ and NYT’s take, respectively. For more, check out Rick Hasen’s comprehensive coverage over at the Election Law blog.

“The court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics,” said Nathaniel Persily, a law professor at Columbia, to the NYT.

According to the NYT, the court has increasingly shown a willingness to shoot down campaign-finance laws on First Amendment grounds. Indeed, the Roberts court has struck down every campaign finance regulation to reach it, and it seems to have on board even more justices prepared to do more. Indeed, last year, in Federal Election Commission v. Davis, Justice Alito, writing for the majority, said leveling the electoral playing field was not a matter for the courts or constitutional.