Some days recently it feels like we should just cave in and make this the WSJ’s Antitrust Blog, given the amount of news on that front these days. It gets to us. Some nights, Christine Varney, Neelie Kroes, and Herb Hovenkamp float through our dreams talking of the rule of reason, essential facilities and interlocking directorates (our dreams, like most of yours, LBers, typically revolve around discussions of revered federal statues, like the Sherman and Clayton Acts).

In any event, there’s more on this front out Tuesday. U.S. regulators announced today that they were considering updating 17-year-old guidelines used to determine whether proposed business mergers are anticompetitive. It’s a move that could result in both simplified and tougher standards for companies. Click here for the WSJ story; here for coverage from the BLT blog.

The review by the U.S. Justice Department and the Federal Trade Commission is expected to bring the 1992 guidelines more in line with how mergers are reviewed now at the two agencies. Critics say the complicated analysis required in the federal government’s existing guidelines no longer accurately reflects real-world practice at the agencies, which today focus more on the practical impact of a proposed merger.

“It is an appropriate time for the antitrust agencies to conduct a review of the guidelines to determine whether any revisions should be made to better protect American consumers and businesses from anticompetitive mergers,” Christine Varney, the DOJ’s chief antitrust enforcer, said in a written statement.

William Baer, an antitrust lawyer at Washington’s Arnold & Porter law firm, said that with the guideline review, regulators appeared to be headed toward putting more emphasis on the practical impact of a merger on product lines and consumer choice.

“Some of the methods were put on the book a generation ago,” said John Harkrider, of Axinn Veltrop & Harkrider, to the Law Blog. “The world has changed since then.” Harkrider suggested the biggest changes would be to the guidelines of how regulators should analyze the presumptive competitive effects in two different merger scenarios, one involving sellers of large commodities, another involving “differentiated products.”

The first workshop is slated to take place in Washington on Dec. 3. Mr. Leibowitz said the review process will take six to 10 months.

Former Mid-Moraine Municipal Judge John Grundahl is seeking reimbursement of $4,511 in legal fees for a private attorney he hired to defend him against a threatened lawsuit during his second term as judge, municipal court officials said.

In January of this year, the 14 municipalities that are members of the Mid-Moraine Municipal Court authorized a lawyer to sue then judge Grundahl if he continued to refuse to collect certain fees.

Grundahl decided in September 2008 the municipal court did not have authority in state law to collect fees for serving warrants.

The court had collected a $25 fee for the service prior to Grundahl's first election in 2005 and throughout his first term, records show. He halted collection of the fee near the end of his second term.

John St. Peter, a Fond du Lac lawyer representing the court, will recommend that the court's administrative committee reject the reimbursement request simply because no lawsuit was filed, St. Peter said. State law requires legal action be taken before a public official can be reimbursed for legal defense fees, he said.

The administrative committee is scheduled to meet Tuesday to discuss the request.



John Grundahl

The Township Council will meet tonight to authorize special counsel Francis Campbell to institute legal proceedings to stop what the township is calling a "siphon-scheme" to decrease school tax funds payable by Seaside Park to the Central Regional School District.

The proceedings would be against the Seaside Park Board of Education and Michael J. Ritacco, who serves as superintendent of the Toms River Regional School District as well as Seaside Park. The Toms River district recently began accepting some Seaside Park students free of charge.

The council is expected to approve a strongly-worded resolution, which criticizes the Toms River and Seaside Park districts and Ocean County Executive Superintendent Bruce Greenfield, and authorizes the legal action.

The meeting is at 7 p.m. at Berkeley Town Hall on Pinewald-Keswick Road.

Gov. David Paterson has the power to appoint a lieutenant governor, the state's highest court ruled Tuesday.

The ruling, reached in a 4-3 decision by the New York State Court of Appeals in Albany, clears the way for Paterson -- himself a former lieutenant governor who was never elected -- to resign from the office with a successor in place, The Buffalo News reported.

Paterson, a Democrat, appointed Richard Ravitch July 8 as lieutenant governor, but his constitutional authority to do so was challenged in a court by Senate Republican Leader Dean Skelos. Tuesday's ruling means Ravitch is officially lieutenant governor and would ascend to the governorship should the unpopular Paterson resign before his term ends.



New York's highest court ruled that Richard Ravitch's appointment as lt. governor was lawful.

Mariners drop legal fight over cabaret near Safeco

The Seattle Mariners are dropping their legal fight to keep a strip club from opening near their ballpark.

In exchange, the owners of the DreamGirls club 400 feet south of Safeco Field have agreed to limit outdoor advertising, window displays and signs. DreamGirls will also provide private security outside the cabaret during hours of operations.

The Mariners sued in King County Superior Court to try to prevent the cabaret from opening. The team argued the strip club's existence would adversely affect families that visit the stadium.

A judge ruled in June that the club's permit was properly issued. The Mariners dropped their appeal on Monday, when the board of the Public Facilities District, which leases the stadium to the team, approved the settlement.



File Photo

Judge Jerry Buchmeyer, the federal district court Carter appointee who gained fame (or notoriety) when he struck down Texas’ anti-sodomy law — only to see it reinstated — has died. He was 76. Buchmeyer was the judge assigned to the Baker case, which challenged the law on equal protection grounds in 1981. In 1982, Buchmeyer declared the law unconstitutional, noting, “Homosexuals are not ill or mentally diseased… Homosexuality is not communicable… There is simply no rational connection between the acts proscribed by [the law] and the claimed interests of morality, decency, health, welfare, safety and procreation.”

He became a hero to the gay community. (It was nice of Buchmeyer to wait until Pride was over to pass — he was often cited during early Pride parades.) But that victory was short-lived, as the Fifth Circuit eventually overruled him and reinstated the law.

Jerry Buchmeyer was perhaps best-known for his handling of a 1985 lawsuit against the Dallas Housing Authority that many say helped desegregate public housing. The case, brought by seven black women over living conditions at a West Dallas housing project, led to thousands of low-income black families moving into predominantly white neighborhoods with the help of government rent vouchers.

In another ruling, Buchmeyer struck down the Dallas County City Council election system, saying it diluted minority power. Roy Williams, a co-plaintiff in that case, told The Dallas Morning News that the judge was a courageous, fair man.



Jerry Buchmeyer

This, frankly, is why people fear jury duty.

The criminal trial of Brooke Astor’s son, Anthony Marshall, and lawyer Francis Morrissey, is expected to get sent to the jury on Tuesday after 19 weeks of courtroom testimony and lawyer talk. That’s right, 19 weeks of talk over whether Marshall and Morrissey essentially swindled Astor out of millions during the waning days of her life. Astor died in 2007 at the age of 105. Click here for our “walk-up” post on the eve of the trial’s beginning, back in March (that’s right, March); here for a NYT article on the trial’s heading to the jury.

So why did the trial take so long? The NYT explains:

Prosecutors contend that Mr. Marshall committed theft by false pretenses by tricking his mother into agreeing to sell a Childe Hassam painting by making her think she was broke. Mr. Marshall ended up selling the painting for $10 million and keeping $2 million as a commission.

To support their contention, the prosecution presented witness after witness who testified that Mrs. Astor told them she could not buy things like dresses because her son told her she had no money. She was still worth tens of millions at the time, prosecutors have said.

“Everybody else tells her, ‘Don’t worry about it. You have. Spend,’ ” Joel J. Seidemann, an assistant district attorney, said in his closing statement. “Only her own flesh and blood takes advantage of this delusion.”

Much of the jury’s deliberations could hinge on Astor’s mental state in her waning years. It was a central topic throughout the trial.

Both men face charges of conspiracy and scheming to defraud. Mr. Marshall, 84, also faces a charges of first-degree grand larceny, the most serious counts on the indictment. A conviction on either count would mean that the judge, Justice A. Kirke Bartley Jr., would have to send him to prison for at least a year. Marshall, 85, and Morrissey, 66, might not have to serve time behind bars if convicted on any other count.

–I want a (bleeping) lawyer, man. I want Bill Kunstler, or Ron Kuby.–The Big Lebowski



Last we checked in with Ron Kuby, the defense lawyer partly known for taking on controversial clients, he was representing the teenage Somali pirate who allegedly aided the hostage-taking of American ship captain Richard Phillips.

Kuby’s back at it today. The lawyer, who repped the first World Trade Center bombers and Long Island Railroad Shooter Colin Ferguson, among other notables, appeared in court for a new client, Ahmand Wais Afzali, an imam in Queens, and stated that his client is innocent and being made a scapegoat by federal authorities.

Afzali on Monday appeared in a Brooklyn federal court to be arraigned. He was arrested on Saturday and is being accused of lying to federal agents about communications he had with a terrorism suspect named Najibullah Zazi. Click here for the NYT story; here for the LA Times story.

Zazi and his father, Mohammed Wali Zazi, were expected to appear in court in Denver, Colo. on Monday to respond to charges that they lied to federal agents in connection with a probe of a possible bombing plot.

Investigators last week asked Afzali to “find out where Mr. Zazi is and where he was going to,” Kuby said. Investigators had been tipped off that Zazi had trained in an Al Qaeda terrorist camp. According to Kuby, Afzali then made calls, which he knew were being monitored by agents, to friends of Zazi’s father and Zazi’s father himself. Afzali eventually reached Zazi, who had driven from his home in Colorado and was then in the New York City area.

In the complaint, federal authorities say Afzali, a popular imam in Queens and, reports the NYT, a “source of information for local and federal authorities on the alert for any criminal activity,” appeared to tip off Zazi that the authorities were asking questions about him. Zazi then flew home on Sept. 12, breaking up the investigation.

In its complaint, the government said that during a meeting at the Brooklyn U.S. attorney’s office, he lied about his conversation with Zazi by denying that he told Zazi that authorities were asking about him.

Kuby said he believed government investigators “were angry that their investigation got blown and they can’t wrap their heads around the fact that they themselves blew it.”

“Why in the world–if he knew the conversation was being monitored–why would he lie about the conversation?” Kuby said.

Before the shadows have gotten too long on this day, let us blog Sunday’s story in the NYT about John Edwards. It’s largely a political story, granted, but one woven through with a handful of interesting legal threads.

The headline on the story: A federal grand jury in Raleigh is weighing whether campaign laws were broken in Edwards’s effort to hide his affair with Rielle Hunter during and shortly after his presidential campaign.

The Times reports that, according to people familiar with the grand jury investigation, prosecutors are considering filing charges based on a novel legal issue: whether hush money paid to Hunter by Edwards supporters (paid in order to maintain the viability of Edwards’s candidacy) should be considered campaign donations and thus whether they should have been publicly reported.

According to the story, investigators are looking into the the benefits Hunter received from the two Edwards supporters, Fred Baron, the pioneering Texas trial lawyer who has since died, and Rachel Mellon, a 99-year-old heiress to the Mellon fortune. Before his death, Baron said in a statement that he paid Hunter and helped move her and an Edwards aide, Andrew Young to California and other places on his own initiative, without informing Edwards. Edwards has asserted that he knew nothing of the benefits provided to Hunter by Baron or Mellon.

In a book proposal by Andrew Young, however, Young depicts Baron as going to great lengths to help Edwards conceal from the public both his affair with Hunter and his paternity of her daughter. At one point, Young wrote, Edwards asked Baron if he could find a doctor who would falsify a DNA report.

Wade M. Smith, a Raleigh lawyer who represents Edwards, declined to comment on the paternity issue directly, or on any of Young’s other allegations.

So what’s the likelihood of an indictment against Edwards or others? Joe Sinsheimer, a former Democratic consultant who has monitored the Edwards investigation, said it would be difficult for prosecutors to make a case because “the law probably doesn’t anticipate payments to a mistress during a campaign.”

While violations of campaign finance regulations are not necessarily crimes and may be punished by fines from the Federal Election Commission, they can also break criminal laws if there is evidence of willful deception.

We’re not sure if what follows is our “favorite” detail from the story, but it’s certainly the most jarring, on several levels. According to the Times story, Edwards once calmed Hunter by promising her that after his wife died, he would marry her in a rooftop ceremony in New York with an appearance by the Dave Matthews Band. So Much to Say, indeed.

Aside from the drama expected to take place this weekend — would Mad Men and 30 Rock clean up at the Emmy’s? (a: pretty much); would the Cowboys reign supreme in their new stadium’s christening? (a: no) — we were also treated to a less predictable weekend storyline: one congressman’s rather aggressive push into the BacMerSaga.

The chairman of the House Committee on Oversight and Government Reform on Friday told Bank of America that it has questions concerning disclosures made surrounding the bank’s purchase of Merrill Lynch. The panel’s chairman, Edolphus Towns (D-NY), told the bank it can’t use the attorney-client privilege when dealing with Congress. Click here for more, from the NYT; here for earlier coverage of BacMerSaga, from the LB.

In a letter on Friday, Towns (pictured) said the bank must divulge when it became aware of the enormous losses at Merrill last year, when it received a commitment from the federal government for a second round of bailout money and what legal advice its management received about whether it had to disclose those developments to the bank’s shareholders. (Legal advice? Yipes! It means that, at least for the moment, the roles of Wachtell, Lipton and Shearman & Sterling will likely stay firmly in the spotlight.)

Towns gave the bank until noon on Monday to provide answers.

“We appreciate and take very seriously the committee’s important oversight role and have nothing but the strongest intent to work with the committee to help it understand these events,” Kenneth D. Lewis, the bank’s chief executive, said in a letter to Towns.

For now, according to the NYT, Bank of America has turned to some high-powered lobbyists. It recently hired the Podesta Group, run by Tony Podesta, a prominent Democratic lobbyist, to contact Towns’s staff.

Bank of America acknowledged that Congress had the authority to disregard attorney-client privilege. That said, the bank’s Washington law firm, WilmerHale, argued that that would set a bad precedent. It’s a sentiment shared, writes the NYT, by the Association of Corporate Counsel, which came to BofA’s defense this month when the New York attorney general Andrew Cuomo asked the bank to give up its claim that its legal advice should remain private. The group issued a statement saying that it would be an “outrageous precedent” for other public companies if the bank had to give up its right to legal privacy.

Two new crime dramas debut on Tuesday nights.

Beginning Sept. 22, the 9 p.m. hour will be the setting for two battling case-of-the-week legal procedurals on television. Here are brief reviews of "The Good Wife" and "The Forgotten."

"The Good Wife" (KUTV Ch. 2) » Julianna Margulies, of "ER" fame, tries her hand at playing another attorney (she was last seen in the failed series "Canterbury's Law") in a one-hour courtroom drama with only slight variations from the norm.

"The Forgotten" (KTVX Ch. 4) » Of course this new drama from producer Jerry Bruckheimer is going to be a legal procedural. Along with blowing up things on the big screen (the "National Treasure" and "Pirates of the Caribbean" movies), he's also one of the top producers of television crime dramas (the "CSI" franchise, "Cold Case" and "Without a Trace"). Each of his standalone series seem to revolve around that formula of cracking the case of the week.

In "The Forgotten," the cases are those of unidentified murder victims, and the protagonists are not police but average citizens volunteering their time.

More...

More law and order comes to television - Salt Lake Tribune

The case of a black female Army reservist who police say was beaten by a white man in front of her 7-year-old daughter could renew the call for a hate crime law in Georgia.

The state is one of five without a hate crime law on the books after the Georgia Supreme Court in 2004 struck down legislation passed four years earlier, ruling it "unconstitutionally vague." Advocates lobbying for a new law have been met with opposition, but Tashawnea Hill’s beating could be a rallying cry in the upcoming legislative session.

Groups like the Anti-Defamation League and state NAACP have pointed to the incident as proof such a law is needed in the state.

The city proposes to spend $170,000 in legal expenses this upcoming year - more than four times the amount spent in the 2006-07 budget year.

That's not the highest jump in recent years, however.

The budgeted amount for the 2007/08 legal expenses was $45,000. In actuality, more than $226,000 was spent - almost six times the amount budgeted the year prior.

The rise in the budget coincides with the city contracting with the Hogan Law Firm, following the resignation of the city attorney David LaCroix in 2007.

The Hogan Law Firm was contracted in October 2007 for a $2,500 monthly retainer and 14 hours of work. Work done over that amount would be billed at $185 per hour, to be charged in a 10th of an hour increments, or six minutes.

City leaders say they are aware of the spikes in legal expenses but it is money well-spent.

The city is suing in court for more than $400,000 in bonds to be returned.

The city manager and attorneys have outlined 15 projects and goals that they want to accomplish in the coming year. These include revising land development code and revamping personnel policies.

The case in New Orleans stems from the city’s post-Katrina desire to put cameras in high-crime areas. Two companies, Southern Electronics Supply and Active Solutions, claim they had contracted with the city in 2004 to supply the crime camera equipment, but that city officials—including Mayor Ray Nagin—reneged on the deal and misused the companies’ technology.

The companies also claim that technology officials in New Orleans conspired with Dell to allow the computer maker to sell their system commercially.

Officials with both Dell and New Orleans denied the accusation.

The trial, which began this week with jury selection, reportedly could run as long as two to three weeks.

The only man convicted in the 1988 Lockerbie bombing posted his legal defense to the Web on Friday, saying he hopes it will help convince people he had nothing to do with the terrorist attack that killed 270 people.

Abdel Baset al-Megrahi said the 353 pages of legal arguments are part of an appeal of his conviction that was dropped shortly before he was released from a Scottish jail last month. The documents are particularly aimed at Scots and the families of the bombing's victims, he said.

All 259 people on board Pan Am Flight 103 — mostly Americans — and 11 people on the ground died on Dec. 21, 1988 when a bomb exploded mid-flight as the plane flew over Scotland.

"I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence," the terminally ill al-Megrahi said in a statement. "I hope that this can assist in the understanding of my case, especially for those who have been most profoundly affected by it."

Al-Megrahi, who was given only about three months to live by doctors, was freed last month by Scottish authorities on compassionate grounds.

Lifesaving law in Kansas goes unused

By JOE LAMBE
The Kansas City Star

A mother hides her pregnancy and kills the newborn.

To most of us, it’s an unthinkable crime. Yet prosecutors allege it’s happened three times this year in Kansas.

One case was in Johnson County, officials say, and together the three killings are the most such cases known to have happened in a single year since four Kansas infants died in 2001.

That prompted Kansas Attorney General Steve Six last week to call attention to the Kansas law that allows people to abandon infants to certain authorities and not face a penalty.

All 50 states have enacted some version of “safe haven” laws. Experts say more than 2,800 children have been turned in nationwide since Texas passed the first one a decade ago.

But in Kansas, no baby has been surrendered since that state’s law took effect two years ago, officials said. Mothers have allegedly killed four newborns in Kansas since the law was enacted. Thirteen cases have surfaced since 1994.

More...

Lifesaving law in Kansas goes unused - Kansas City Star

Hey, we need some cool GovTrack apparel, right? Design a GovTrack t-shirt or send me a funny expression related to GovTrack to put on a t-shirt, and if I get some good responses I’ll pick a winner and send back a $100 gift certificate to somewhere. Email your submissions to operations@govtrack.us.

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An Indiana appellate court on Thursday struck down a state law requiring voters to show identification — a law that the United States Supreme Court declared constitutional just last year.

The court said the law violated the Indiana constitution by not treating all voters impartially.

The state legislature passed the voter ID law in 2005, and it was challenged in federal court. The Supreme Court found the law constitutional in April 2008. In July of that year, however, the League of Women Voters brought a new suit in state court.

Thursday’s decision, then, had a sense of déjà vu for some, but with a different outcome. “The court here accepted a lot of the arguments that were rejected by the U.S. Supreme Court,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles, “so it’s like a second bite of the apple.”

The major difference between Thursday’s state court decision and the Supreme Court’s decision in Crawford v. Marion County Election Board is that the state court was interpreting the state constitution, while the Supreme Court interpreted the Constitution of the United States. Generally, state courts are given the last word in interpreting their own constitutions.

New York Gov. David Paterson signed 60 bills into law on Sept. 17, including new reporting requirements for hospitals and the creation of a state energy planning board.

Paterson signed a bill requiring hospitals to publicly disclose the number of licensed and unlicensed nursing personnel providing patient care, and the methods they use to determine and adjust staffing levels. Hospitals had lobbied against the bill.

He also signed a bill requiring state agencies to publish contracting plans for hiring minority- and women-owned businesses, in an effort to ensure better oversight and accountability in that program.

US asks court to dismiss challenge to marriage law

The Justice Department on Friday asked a federal judge in Boston to dismiss a lawsuit that claims a federal law defining marriage as a union between a man and a woman is unconstitutional because it denies gay couples access to federal benefits given to other married couples.

In court documents, the Justice Department makes it clear the Obama administration thinks the law is discriminatory and should be repealed. But the department said it was defending the statute because the law is "constitutionally permissible."

The 1996 federal Defense of Marriage Act, known as DOMA, bars federal recognition of gay unions and denies gay couples access to pensions, health insurance and other government benefits.

The law was passed by Congress at a time when it appeared Hawaii would become the first state to legalize same-sex marriage. Opponents worried that other states would be forced to recognize such marriages.

Since then, six states have enacted laws or issued court rulings that permit same-sex marriage, including Massachusetts, Maine, Vermont, Connecticut and Iowa. New Hampshire's law takes effect Jan. 1, 2010.