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Two Attorneys Emerge in Detroit Mayor Case
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2008/04/09 08:53
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pLawyers Kym Worthy and Dan Webb are a pair of ferocious competitors in the courtroom. That's both good news and bad news for the mayor./ppWorthy, a prosecutor, and Webb, a defense attorney, have emerged as the legal faces of a text-messaging sex scandal that has embroiled Mayor Kwame Kilpatrick and his former top aide./ppWorthy, the first black attorney and first woman to head the Wayne County prosecutor's office, is seeking to prove Kilpatrick lied under oath. Webb is a high-priced litigation gunslinger aiming to keep the mayor out of prison./ppSlight of build, the 62-year-old Webb is considered a legal heavyweight in the courtroom, ranked among the nation's top trial lawyers by several publications./ppI hate failing. That's more of my driving force, why I work as hard as I do, he said last week while preparing other cases in San Francisco, Las Vegas and St. Louis./ppA big part of Worthy's success is her focus. That's what she preaches to the team of assistant prosecutors preparing for Kilpatrick's next court hearing./ppI spent most of my weekends and holidays here in the library, said Worthy, 52, looking back at her career. I tried to cross every 'T' and dot every 'I.' Too many things can go wrong in a trial./ppKilpatrick has been besieged since late January, when the Detroit Free Press published excerpts of sexually explicit and embarrassing text messages left on the city-issued pager of his then-Chief of Staff Christine Beatty./ppThe messages contradict testimony both gave last summer during a whistle-blowers' lawsuit when Kilpatrick and Beatty denied having a romantic relationship in 2002 and 2003. Kilpatrick also is accused of lying under oath about his role in the firing of a top police official./ppThe text messages also were referenced in a confidential agreement that led to the city settling that lawsuit and a second whistle-blowers' suit for $8.4 million./ppAfter a two-month investigation, Worthy filed multiple felony perjury, misconduct and obstruction of justice charges against Kilpatrick and Beatty. Convictions could send each to prison, and force Kilpatrick from his perch as Detroit mayor./ppThe embattled mayor is the latest of Webb's high-profile clients. He's represented tobacco giant Philip Morris on racketeering charges and computer giant Microsoft in an antitrust trial./ppFormer U.S. Attorney Patrick Collins crossed swords with Webb in a six-month corruption trial of former Illinois Gov. George Ryan, who is serving a prison sentence on a fraud and racketeering conviction./ppDan is a tenacious competitor, said Collins, now a defense attorney. He's a competition junkie, and I think he loves the action and he's very good at his craft./ppWorthy, who moved often while growing up with her military father and earned her law degree from the University of Notre Dame, pursued a law career because of what she didn't see./ppI can only say my father told me I could do anything I wanted, she said. There were no lawyers in my family. When I watched TV, I didn't see any African American lawyers. They didn't even have black police officers on TV back then./ppAfter two years as a contract worker for the Wayne County prosecutor's office, she was hired on as an assistant prosecutor in 1986. In 1992, an unemployed black steel worker named Malice Green was beaten to death during a confrontation with several white Detroit police officers./ppThe case put the young, black, female assistant prosecutor on the nation's stage and in the daily glare of cable television. She won second-degree murder convictions against two of the officers./ppShe is highly skilled and she could work the courtroom. She prepares as well, if not better, than anybody, Detroit defense attorney Carole Stanyar said./ppWebb also is no stranger to the spotlight. He's cross-examined former President Ronald Reagan and won a conviction against U.S. Navy Admiral John Poindexter in the Iran-Contra affair./ppAlthough he would have preferred playing second base for the St. Louis Cardinals, Webb said he discovered his love for law growing up in the small farming community of Bushnell, Ill., about 170 miles southwest of Chicago./ppSomewhere before I got out of high school, I decided I was going to be a trial lawyer come hell or high water, said Webb, who took law classes at night at Loyola University while holding full-time banking jobs./ppI didn't have any money. I was broke, Webb joked. That's why I worked my way through law school. I knew I didn't want to do banking work.
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Discovery Across Borders
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2008/04/09 08:51
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pYou are a United States company but a global citizen. Your shares are traded on U.S. exchanges. You have sales forces in Europe, manufacturing in Asia, and your eyes on the Middle East. It used to be that only the largest companies had a broad international reach. Now, it seems corporations of all sizes, in order to be competitive, must carefully consider overseas operations. While technology has made transition into the new global economy easier, it also creates special risks./ppImagine the following: You wake up one morning to a flurry of activity in France, where regulators have raided your main sales office seeking documents and information regarding alleged kickbacks to a key customer. You are asked to turn over hard drives, backup tapes and access to your servers. A reporter from Le Monde picks up the story, and by the time the U.S. opens for business there is a story on WSJ.com. Your stock price falls throughout the day; by the end of the week a leading class action law firm has announced the filing of a securities fraud case. The Securities and Exchange Commission (SEC) asks for information about your global sales practices and accounting policies.
Suddenly, you are faced with a swirl of information demands and document preservation obligations. French regulators want to cart your computers away-but the SEC wants the information they contain. American plaintiffs' lawyers will want it as well, and there's no telling whether additional regulators or litigants will become involved./ppIn today's business, all information is electronic. Paper may have been heavy, hard to store, and time-consuming to review-but it was a tangible thing, easy to inventory, and it tended to be limited in volume, even in the largest cases. More importantly, identifying relevant documents for preservation or production was relatively easy: Either a document was in your possession or custody, or it wasn't, and if it wasn't, either you controlled the people who had it, or you didn't. Electronic communication has led to exponential increases in the amount of data that companies store, and the locations where the information is stored: desktops, laptops, servers, PDAs, BlackBerries™, smart phones, optical drives, thumb drives, iPods™ and more./ppUnless you spend a great deal of time talking shop with your IT managers, you probably don't know how many e-mail or file servers your company uses. You probably don't know exactly where your electronic documents are stored, what happens to your e-mails after you delete them, or how frequently your company's servers are backed up to tape. Are you prepared for information discovery across borders? Do you understand how to preserve, collect and analyze data in a way that will meet the requirements of foreign as well as U.S. courts and regulatory bodies? Are you sure?/ppIf you operate internationally, you must be cognizant not only of a patchwork of laws and regulations-many of which could conflict-but also of cultural differences that affect your response to requests for electronic information./ppThe initial stage in any litigation or regulatory effort is to ensure preservation of relevant materials. But an international scope makes this far more complicated than just issuing a directive to employees to stop deleting e-mails or drafted documents. You need to know where information is located, how it is stored, when it is backed up, and whether backups are rotated or destroyed. Automatic deletion or rotation policies mean that if you do nothing, you may lose files that are subject to a regulatory or litigation request./ppData collection also is far more complicated in an international context than in a purely domestic one. Local laws may prohibit an employer from searching employee e-mail files. As a cultural matter, most Americans are accustomed to the idea that an employee's computer and e-mail account belong to the employer. Outside of the U.S., the cultural understanding is frequently just the opposite: An employee's computer and e-mail account are considered private, and it may be a criminal offense to invade that privacy. Collection of data outside the U.S. may be seen as coercion by an employer, and it may lead to labor union grievances or complaints./ppOnce the information is collected, getting it reviewed and produced to a U.S. regulator or litigant is also no simple matter. Data privacy and blocking statutes in Europe, Asia and South America may forbid the transfer of personal data outside of their borders to an unprotected jurisdiction like the United States-and personal data include names, e-mail addresses and office phone numbers. Indeed, special procedures may be required before individuals outside a company-including the company's outside counsel-may review the data. And local laws may dictate that only data specifically responsive to a request may be exported, requiring counsel to review materials locally rather than shipping them to the U.S. to one centralized location, as is normally done in U.S. litigation/ppDo not expect, however, any sympathy from U.S. regulators or plaintiffs' lawyers. U.S. regulators are skeptical of data protection laws and may take the view that international companies hide behind them to avoid cooperating with the regulators' investigations. U.S. courts may not be more understanding. The Supreme Court has held that U.S. discovery rules presumptively apply in civil litigation involving an international company, even if producing data in response to a discovery request would be unlawful in the international company's host jurisdiction.
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Appeals court may let NSA lawsuits proceed
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2008/04/07 08:07
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pA federal appeals court on Wednesday appeared unwilling to end a pair of lawsuits that claim the Bush administration engaged in widespread illegal surveillance of Americans. /ppThe 9th U.S. Circuit Court of Appeals repeatedly pressed Gregory Garre, the Bush administration's deputy solicitor general, to justify his requests to toss out the suits on grounds they could endanger national security by possibly revealing state secrets.
Judge Harry Pregerson wondered: We just have to take the word of members of the executive branch that it's a state secret. That's what you're saying, isn't it?
A moment later Judge Michael Hawkins suggested that granting the request could mean abdication of our duties.
At the heart of both cases is the U.S. Justice Department's argument that any lawsuit claiming illegal activity on behalf of ATamp;T and the National Security Agency--even if the eavesdropping is known to have taken place--cannot proceed because it could let enemies and terrorists know how the government's surveillance apparatus works.
It could compromise the sources, methods and operational details of our intelligence gathering capabilities, Solicitor General Garre said.
In the first case, called Hepting v. ATamp;T, the Electronic Frontier Foundation and other attorneys had filed a class action lawsuit against ATamp;T saying it unlawfully opened its networks to the NSA. Last summer, U.S. District Judge Vaughn Walker in San Francisco ruled that it could proceed.
The second case, Al-Haramain Islamic Foundation v. President Bush, is unique: it involves a classified document that the U.S. Treasury Department accidentally turned over to an attorney for the foundation. The top-secret document showed, according to the group, Al-Haramain and its attorneys had been subjected to warrantless surveillance in violation of (federal law). They responded by filing another lawsuit in February 2006 alleging violations of the Foreign Intelligence Surveillance Act.
The Justice Department says the Al-Haramain case must be thrown out because it, too, could endanger state secrets. The foundation's attorneys must not even be allowed to refer to it, government attorney Thomas Bondy said Wednesday, because their mental recollections of the documents are also out of the case.
I'm feeling like Alice in Wonderland, replied Judge M. Margaret McKeown.
While no decision was announced Wednesday, and a final ruling might not be reached for months, a three-judge panel of the 9th Circuit pressed prosecutors to justify asking that the case be dismissed based on declarations submitted by senior Bush administration officials. (All three judges are Democratic appointees.)
The bottom line here is that once the executive declares that certain activity is a state secret, that's the end of it? Pregerson asked. No cases, no litigation, absolute immunity? The king can do no wrong?
The conversation occasionally took bizarre turns, such as when the attorneys and the judges knew the contents of confidential documents they had all reviewed--but could not discuss those contents in a courtroom with reporters and the public in the audience.
Another odd twist was the repeated reference to the Bush administration's public claim that there is no widespread surveillance of Americans--meaning a kind of suspected electronic dragnet that would permit the NSA to sift through a large chunk of Internet communications. Last April, retired ATamp;T employee-turned-whistleblower Mark Klein described just that kind of arrangement at an ATamp;T switching facility in downtown San Francisco on Folsom Street.
But administration officials have never been willing to deny a dragnet program in a signed affidavit made under penalty of perjury. That might derail the lawsuit against ATamp;T for now, but on the other hand, it could carry threat of criminal prosecution if the affidavit turned out to be a lie.
What would be wrong with a simple affidavit denying that the government has intercepted the telephone conversations of American citizens without a warrant, Hawkins asked.
In December 2005, after The New York Times reported the existence of the NSA eavesdropping program, the president replied by saying: I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.
McKeown suggested this wording for an affidavit: Without admitting or denying that the government has a relationship with ATamp;T, I, Mr. or Mrs. So-and-So from the executive branch under oath, essentially affirm what President Bush said. The judge also said that because the government denies the dragnet program and says they do not do any such surveillance without a warrant and there is no such program, the affidavit should be no problem.
Garre replied that such an affidavit is unnecessary because the president has already made a public statement.
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Climate Work Heating Up at Law Firms
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2008/04/04 08:01
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| pKenneth Berlin and his team at Skadden, Arps, Slate, Meagher amp; Flom have been working on climate-related matters for years. He headed the Justice Department's Environmental and Natural Resources Division, chaired the Environmental Law Institute and has shepherded a mountain of environmental litigation for major corporations. /ppSkadden hadn't needed a climate change group before: It simply tapped environmental, energy regulatory, intellectual property and tax lawyers to help out when the need arose. Partners, however, at the nation's highest-grossing law firm have changed their minds: This week, they were scheduled to launch a 23-lawyer group specifically devoted to climate change issues. /ppThe whole area is changing, says Berlin, who will head the group. The area is developing so quickly now that it now merits a practice area. /ppThe firm is joining an ever-growing list of major firms that are creating a climate change brand. Akin Gump Strauss Hauer amp; Feld, for example, debuted its climate change practice in November. Vinson amp; Elkins announced its climate change practice last spring, and many others have organized groups in recent months. In fact, 26 Am Law 100 firms tout some form of a climate change practice. A handful of others hype clean technology groups. /ppClimate is hot in a way that nothing else has been before, says Latham amp; Watkins partner Robert Wyman Jr., the firm's lead counsel for Clean Air Act matters. We're talking about transforming the energy and transportation economy. /ppUnlike other fleeting law firm trends -- remember those Y2K practices? -- there appears to be real work to be done here. Heightened regulation of companies releasing carbon dioxide and other greenhouse gases has led to a host of new legal questions. Although Congress is still working out federal emissions limits, corporate clients are facing state and regional emissions caps as well as standards outside the United States set by the Kyoto Protocol. The work, mainly, falls into two categories: helping companies navigate emissions caps issues and litigating disputes arising from emissions limits or from problems caused by greenhouse gases. /ppThat said, there's still a marketing ploy at work: Climate change groups, primarily, rely upon lawyers from existing practice areas, such as corporate, energy, tax and, of course, environmental. Labeling a multidisciplinary group as a climate change practice is shorthand for clients who are genuinely fearful about regulation and litigation. I don't think there's a single Fortune 100 company who has not had a board-level conversation about their exposure to climate change regulation, says Todd Glass, chair of Heller Ehrman's energy practice and a partner in the climate change group. /ppNaturally, there's money to be made here, too. /ppCovington amp; Burling's Rubén Kraiem, who co-chairs the firm's carbon markets, climate change and clean technology practice, says the 17-lawyer area has generated $1.5 million annually since its inception in 2005. /ppKraiem estimates that at least 250 of the hours Covington lawyers spent for clients Kohlberg Kravis Roberts amp; Co. and Texas Pacific Group on their $45 billion leveraged buyout of TXU Corp. in 2007 were billed as climate change work. (Partner Stuart Eizenstat is the Covington group's other co-chairman. During the Clinton administration, Eizenstat led the U.S. delegation that negotiated the Kyoto Protocol.) /ppDuring the TXU buyout, investors became concerned about opposition from environmental groups because of the Texas energy company's coal-powered generation of electricity. The buyers wanted the deal to include a number of policies addressing climate change issues. Covington, Kraiem says, helped structure those commitments, which included increasing TXU's investments in renewable energy and creating an advisory board with representatives from environmental groups. /ppLatham's Wyman says his firm's global climate change practice, which started in 2004, is generating serious revenue. He says one of his current climate projects alone has brought in more than $1 million in fees. He declined to disclose the name of that client. /ppClaudia O'Brien, a partner in Latham's Washington office and a member of the global climate change practice, says she can recall at least 30 recent deals at the firm that have involved climate change. /ppWyman, a partner in the firm's Los Angeles office, organized the California Climate Coalition and now counts it as one of his major clients. The coalition's 18 members include Shell, Chevron, General Electric, Northrup Grumman and a number of startup clean-technology companies. The startups can potentially provide the carbon-emitting members with ways to reduce their emissions, and, in turn, those members can invest in and help expand the startup companies. /ppWyman formed the coalition in anticipation of the 2006 enactment of the California Global Warming Solutions Act, which mandates that greenhouse gas emissions from major industries are reduced to 1990 levels by 2020. /ppAmerican Honda Motor Co. Inc. belongs to the carbon-emitting side of Wyman's coalition. David Raney, senior manager of environmental and energy affairs for Honda, says he sought out Latham, and specifically Wyman, for the firm's expertise on carbon trading. We're breaking new ground, Raney says. This is fundamentally asking some new legal questions. /ppOne of the key business drivers for firms is the Kyoto Protocol. Though the United States has never adopted it, Kyoto took effect in much of the rest of the world in 2005 -- and U.S. companies are bound by it when they operate in international markets. /ppThe protocol requires developed countries to reduce greenhouse gas emissions to below-1990 levels and allows companies to invest in clean energy projects in other countries in exchange for credits to offset emissions. The European Union, for example, has set up a cap-and-trade system under which companies are assigned emissions limits. They can then trade for carbon credits if they exceed their caps. Pending legislation in the United States could set up the same type of scheme here. (U.S. companies also engage in voluntary carbon trading, often in response to shareholder concerns.) /ppAnd that's where the carbon lawyers come in. Alston amp; Bird partner Kipp Coddington, for instance, helps his greenhouse gas-emitting clients navigate the carbon market by advising them on emissions trading issues. He says 90 percent of the practice's clients are new to Alston and were, specifically, looking for climate change expertise. /ppCoddington proudly declares himself a carbon lawyer. In many ways his practice bears the markings of traditional corporate work. The Washington partner leads the climate change and carbon management group and says Alston has 10 to 15 lawyers working full time for the practice. /ppFirms are also anticipating eventual federal regulation in the United States. Clifford Chance created its environmental and climatic trading group back in 2003. Washington counsel William Thomas says his energy and manufacturing clients are increasingly aware that the Securities and Exchange Commission may soon require companies to comply with climate-related disclosures. The firm is helping companies craft appropriate communications in their financial statements and in their voluntary sustainability reports, Thomas says. /ppThe Senate Committee on Banking, Housing and Urban Affairs, led by Sen. Christopher Dodd, D-Conn., has held hearings on getting the SEC to require public companies to disclose the financial impact of climate regulation. In September, a number of states and investors petitioned the SEC to expand and further explain disclosure requirements related to climate change. So far, the SEC hasn't taken definitive action. /p |
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