By Carlyn Kolker
Dotcom's expanding legal team
4/3/12
It is a real live U.S. criminal case, but it also reads like
a novel: Kim Dotcom, the swaggering founder of file-sharing site
Megaupload, has been accused by U.S. prosecutors in a sweeping
copyright infringement case that promises to be a showdown on
the scope of U.S. enforcement powers over online file-sharing.
Dotcom, who is also known by the names Kim Schmitz and Kim
Tim Jim Vestor, is currently under house arrest in New Zealand
as he battles a U.S. extradition effort. His assets, reportedly
totaling more than $65 million, have been frozen.
Summary Judgments just got an inkling of what Dotcom's U.S.
legal team may look like: Dotcom wants to hire Sidley Austin, a
big firm which has handled high-stakes criminal, civil and
constitutional litigation. (Dotcom has also been represented by
Ira Rothken, a California lawyer specializing in technology
cases, since the beginning of the case. Robert Bennett, a
Washington lawyer who once represented Bill Clinton, stepped
down from the case in January due to client conflicts, Reuters
reported.)
Sidley's role at least for now is quite limited. According
to March 30 court filings, Sidley wants U.S. District Judge Liam
O'Grady to let the firm, at least at the outset, to represent
Dotcom solely for two specific purposes: seeking the release of
some of the frozen assets so Dotcom can pay for legal
representation, and to litigate issues about the preservation of
evidence that could be key at trial.
"After securing the indictment, the government procured ex
parte seizures of all of the defendants' assets on the theory
that every dime Megaupload ever earned was forfeitable," Sidley
lawyers wrote in March 30 court papers. "These seizures made it
impossible for Megaupload and Mr. Dotcom to pay for counsel of
their choice to defend them on the merits, to seek preservation
of data needed for a full and fair trial, or even to challenge
the seizures."
Team Sidley includes some veteran litigators well-known in
Washington. According to court records, there is Thomas Green,
who represented clients in the Watergate and Whitewater affairs;
Griffith Green, a former clerk to Supreme Court Justice Antonin
Scalia; and Brad Berenson, a former White House associate
counsel during the George W. Bush administration. A firm
spokeswoman was not immediately available for comment.
In its motion, Sidley doesn't specify its fee arrangement
with Dotcom, although it did offer to show its engagement to the
judge for review in chambers. Citing 4th Circuit legal
precedent, Sidley says it should have the "option" of
withdrawing from the case if the frozen funds aren't released.
(Typically, in criminal cases, lawyers can only withdraw from a
case with the court's permission). The government, Sidley says,
has opposed Sidley's request to make a limited appearance.
A spokesman for Neil MacBride, the U.S. attorney for the
Eastern District of Virginia, declined to comment.
(Reporting by Carlyn Kolker and Jeremy Pelofsky)
SCOTUS Lawyer: I'm a loser
4/3/12
"One of the lawyers who argued before the Supreme Court in
the landmark health care case last week is fairly sure that not
a single justice will adopt the position he espoused," writes
the BLT: Blog of the Legal Times. Who is it?
Robert Long is the Covington & Burling partner appointed by
the Supreme Court justices to argue that the Court couldn't rule
on the health care challenge now because of the federal
Anti-Injunction Act. Instead, it would have to wait until 2015
when the provision requiring individuals to buy insurance is
scheduled to go into effect. But Long told an audience at the
Georgetown University Law Center on Monday that no justice
seemed to accept that position, BLT reports. Because Long was
appointed to argue that position and didn't represent a
particular client's viewpoint, he said, he wasn't "crushed or
depressed."
For more on Long's role in the health care argument, read
Summary Judgments' story on how Long and fellow Washington
lawyer Bartow Farr III were selected to take on the unusual task
of arguing on behalf of positions that had no clients.
Belated birthday wishes
4/3/12
She's 100 years old, does the daily New York Times crossword
puzzle, and she still practices law in Alabama - making her, the
oldest practicing lawyer in the state, according to the Daily Beast. Her name is Alice Finch Lee, and she is the older sister
of Nelle Harper Lee, author of the Pulitzer Prize-winning novel
To Kill a Mockingbird. While the elder Lee is deaf, she still
goes to her law office at Barnett, Bugg, Lee & Carter, a firm
where her father once practiced. "Nearly everyone who has bought
property or drawn up a will in Monroe County has relied on her
services," Daily Beast writes. Happy (belated) century birthday,
"Miss Alice."
Prickly relations
4/3/12
And now, from the files of the topsy-turvy world of
regulation vs. politics: Relations between the Food and Drug
Administration and the Obama administration are anything but
hunky dory, the New York Times writes in a front-page story
that's a gripping read that's steeped in Washington politics,
regulatory law or the healthcare world. The administration has
been more cautious than the FDA when it comes to new rules,
which has led to "tussles" over regulations on everything from
asthma inhalers to sunscreen to calorie counts in popcorn to
contraceptives. While Obama's predecessor meddled in the
regulatory world, too, expectations were high for a new era of
distance between the agency and the administration. "Much of the
agency's staff assumed that the Obama administration would
restore the agency's independence," the Times writes. But many
career staffers have been disappointed; the White House, by
contrast, has described the skirmishes as part of the normal
inside-the-Beltway politics.
Rear view window
4/3/12
What should Verrilli have done? During last week's health
care arguments before the Supreme Court, Donald Verrilli, the
U.S. solicitor general defending the federal government's
position, choked up a bit in court. Since then, Twitter and the
blogosphere have debated his performance endlessly, with
political pundits, and even Republicans -- weighing in on the
topic. Some lawyers have chimed in, too, adding thoughts on
missteps by the Supreme Court justices. Here's a round-up:
-Above the Law has an interview with Carter Phillips, the
Sidley Austin partner and uber-veteran of the Supreme Court bar
(Phillips has argued 75 cases in the high court, including one
about the constitutionality of strip searches that he won on Monday). While Clement did a "spectacular" job, Verrilli "made
all the points he had to make and answered the tough questions
effectively," Phillips says diplomatically. Phillips does say he
would have answered "a little differently" the justices'
questions about the burden that the government had to show. "I
would've accepted the premise and said 'We recognize we have a
burden here. But we are happy to assume it and go from there,'"
Phillips told Above the Law.
-Jeffrey Toobin, who famously (we think it's pretty famous
by now) said that Verrilli gave an "awful" performance and that
the argument was "a train wreck for the Obama administration"
writes that the Justice Anthony Kennedy asked the wrong
questions about the government's burden in defending its case.
"Every premise of that question was a misperception," Toobin
writes. Kennedy, he says, was grounded in pre-1935 legal
precedent.
-Verrilli could have saved himself by bringing up one
argument he never made, Jeffrey Rosen writes in The New Republic. The argument centers on the limits of the federal
government's power to require citizens to do certain things
(like buy health insurance) -- a question that Justice Kennedy
struggled with during oral arguments. "In previous cases denying
Congress the power to regulate local activities such as guns in
schools or violence against women, the court has drawn a
distinction between activity that is truly local and activity
that is truly national..." Rosen says. "When it comes to providing
insurance guarantees for the uninsured, any state would be worse
off if it tried to solve the problem on its own, because it
would end up attracting uninsured people from other states
seeking to take advantage of its benefits." This is the argument
Verrilli never made, although it had been made in some
lower-court briefs, says Rosen.
(Reporting by Carlyn Kolker)
Summary Judgments for April 2
Summary Judgments for March 30
Summary Judgments for March 29
Follow us on Twitter: @ReutersLegal