The Am Law Litigation Daily: November 21, 2008

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November 21, 2008 9:00 AM

The Am Law Litigation Daily: November 21, 2008

Posted by Dimitra Kessenides

Edited by Andrew Longstreth

LITIGATOR OF THE WEEK
Eric Holder, Jr., of Covington & Burling
Last spring, when we were interviewing Eric Holder for our June cover story in The American Lawyer, we asked him about the scandals that had broken out in Attorney General Alberto Gonzales's Justice Department. "The Department of Justice is a unique place," Holder told us. "It's a cabinet department, obviously. And you have to be part of the president's team. But the DOJ is unlike any other department in the executive branch. ... Because of the power the Justice Department has, it has to be not only part of the team, but also separate at the same time. I think that was the failing that Attorney General Gonzales had."

We also asked Holder whether Gonzales's close relationship with President Bush should have disqualified him from the job. Holder told us that the problem wasn't their friendship, but Gonzales's failure to distinguish between his responsibilities to the president and to the Justice Department. "I don't think he made the transition he needed to make," Holder said. "It would have been a more difficult transition for him given his long history with the president. But a transition could have been made. But I don't think he did. I don't think Alberto Gonzales is a venal man. I don't think he's corrupt or anything. [But] I don't think he understood at a kind of fundamental level what's expected of an attorney general. You can be an adviser but you really do have to be separate and apart in significant ways."

Holder may soon be making the same points at confirmation hearings. This week Newsweek broke the news that President-elect Barack Obama has asked Holder to be his AG, and Holder has accepted the offer. Based on our reporting, we expect the appointment to be welcomed by federal prosecutors. Holder spent most of his career as one. He was one of the first hires at Justice's Public Integrity section during the early 1970s, which is where he met some of his closest friends. He told us that his favorite job, "hands down," was serving as the U.S. attorney for Washington, D.C. He liked seeing the impact of such initiatives as the creation of a domestic violence unit. And while he told us he also enjoyed some aspects of his service as deputy attorney general under Janet Reno, he also missed being in charge.

It looks like our Litigator of the Week will soon have the chance to be in charge again, running the biggest lawyers' show in town.

FIRMS
King & Spalding Wins Paul Clement Sweepstakes
You've probably heard by now that former solicitor general Paul Clement is returning to King & Spalding. It's a big deal--the equivalent of snagging a left-handed, Cy Young Award-winning free agent. When he resigned as SG in June, Clement became the most eligible lateral hire from the Bush administration. On top of his vaunted intellect and all his experience--seven years in the SG's office and 49 arguments before the Supreme Court--he's only 42 years old. (Here's an American Lawyer profile of Clement by Tony Mauro.)

Eight years ago, before he became deputy solicitor general, King & Spalding gave an even younger Clement the opportunity to develop and expand its appellate practice. After a long interruption, he now has the chance to restart that process.

K&S managed to restrain its glee in the statement announcing Clement's return. "We are very pleased to welcome our former colleague and friend Paul Clement back to King & Spalding," said J. Sedwick "Wick" Sollers, the firm's D.C. managing partner. "Our clients and growing appellate practice will benefit greatly from Paul's vast knowledge and experience before the U.S. Supreme Court, and before appeals courts nationwide."

So who lost out in the Clement sweepstakes? At Legal Times, Tony Mauro is reporting that Latham & Watkins and Skadden, Arps, Slate, Meagher & Flom were possibilities. So, too, was Kirkland & Ellis, where Clement had worked before King & Spalding. A knowledgeable source told Legal Times that Clement's choice came down to K&E versus K&S. In the end, K&S swayed him with the idea of returning home.

Mauro also cites a source who says Clement received some "eye-popping" offers--$5 million is the number some are hearing. Clement would only tell Mauro that his salary at K&S is "a little more than my last job."

WHITE-COLLAR
Bill for Hollinger Defendants: $117 Million
We're creeping toward that eleventh hour of the Bush administration and you know what that means: pardons and commutations. Yesterday we learned that the Office of the Pardon Attorney (who knew there was such an office!) has received an application from former Hollinger International CEO Conrad Black, who has asked for a commutation of his six-and-a-half-year sentence.

The work for the application, which was submitted by Chicago attorney Carolyn Pellign Gurland, is apparently being billed to the Sun-Times Media Group, formerly known as Hollinger. According to the Toronto Globe and Mail, lawyers for Black and three former Hollinger executives who were convicted of fraud have submitted bills to Sun-Times Media for $117 million! We'll say it again, while noting that the Chicago Sun-Times is struggling to survive: $117 million. As we've reported before, Sun-Times has tried to stop paying those defense bills (fifth item), but has been ordered to continue.

And there will be more bills to come. The conviction of Black and his codefendants was upheld by the Seventh Circuit, but Black's appellate attorney, Mayer Brown's Andrew Frey, told us he will be filing a cert petition with the Supreme Court.

IP
Trash Talkin' in 50 Cent v. Taco Bell
When Taco Bell used 50 Cent's name in a promotion to sell tacos over the summer, the gangsta rapper talked tough and threatened legal action. "When my legal team is finished with them," he said, "Taco Bell is going to have a new corporate slogan: 'We messed with the bull and got the horns.'" Oh, snap!

Fifty, whose real name is Curtis Jackson, wasn't just fronting. He hired an IP lawyer, Peter Raymond of Reed Smith, who filed a $4 million suit in the Southern District of New York against Taco Bell, claiming the restaurant chain infringed 50 Cent's trademark.

At issue is a letter sent by Taco Bell's president to 50's agent (but also distributed to the media). In the letter, available here, Taco Bell offered to donate $10,000 to a charity of 50 Cent's choice if he would temporarily change his name to 79 Cent, 89 Cent, or 99 Cent and rap at a Taco Bell drive thru. In 50 Cent's complaint, his lawyers claim the letter was in reality an advertisement and that Taco Bell did not have permission to use the artist's name.

Taco Bell's lawyers at Patterson Belknap Webb & Tyler have been talking smack, too. In the restaurant chain's response, filed in September, they begin by declaring that "Jackson is a self-described former drug dealer and hustler." Oh, no they didn't! "Jackson has used his colorful past to cultivate a public image of belligerence and arrogance and has a well-publicized track record of making threats, starting feuds, and filings lawsuits," they continue. "This lawsuit is another of Jackson's attempts to burnish his gangsta rapper persona by distorting beyond all recognition a bona fide, good faith offer that Taco Bell made to Jackson."

Fifty's lawyer, Reed Smith's Raymond, told us that he "disagrees with all the false allegations" of Taco Bell's lawyers. He also said he found it "curious" that Taco Bell describes 50 Cent as such a disreputable character, given that the restaurant was once so eager to be associated with him.

IP
Facebook Slapped with Another Suit--This Time, It's Patent Infringement
Facebook just can't stay out of court. On the heels of the resolution of a trade secrets case that claimed the Harvard wunderkind who created the social networking site had stolen the idea for it (third item), Facebook was slapped with a patent infringement suit this week. The plaintiff is an Ohio-based company called Leader Technologies, which claims Facebook infringes a patent that "generally relates to a method and system for the management and storage of electronic information." The Leader Tech complaint, filed in Delaware federal district court by Paul André of King & Spalding and Philip Rovner of Potter Anderson & Corroon, seeks unspecified damages and injunctive relief.

Pretty standard stuff. The question we have: Which of Facebook's law firm friends will defend it? Facebook spokesperson Barry Schnitt told us that the company just received the suit yesterday morning and has not decided which outside firm it will use. He also said the suit was without merit.

Earlier this year, The Recorder ran an excellent story on Facebook's shifting law firm lineup as it transitions from start-up to tech mainstay. We'll keep our eye on who makes an appearance for Facebook in this case. Given that Facebook is likely to see similar suits in the future, it could to be an important client relationship to watch out for.