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November 17, 2008 9:00 AM

The Am Law Litigation Daily: November 17, 2008

Posted by Ed Shanahan

Edited by Andrew Longstreth

JUDICIARY
Does D.C. Circuit Court Judge Merrick Garland Have Supreme Potential?

When speculating about who might become the next Supreme Court justice, it's a good idea to check out the U.S. Court of Appeals for the D.C. Circuit, former home of four of the justices (Roberts, Ginsburg, Thomas, and Scalia) serving on the high court today. This week, Legal Times profiles Washington, D.C., circuit court judge Merrick Garland, who has been getting buzz as a potential Supreme Court nominee following Barack Obama's victory. Beltway insider Jamie Gorelick of Wilmer Cutler Pickering Hale & Dorr partner told Legal Times that Garland, a 56-year-old Clinton appointee, is the Democratic equivalent of John Roberts, Jr. The appellate court judge has Justice Department experience, was a partner at Arnold & Porter, and is considered an intellectual respected by both Democrats and Republicans.

We remember well his recent opinion in Parhat v. Gates, in which Garland cited Lewis Carroll's nonsense poem, "The Hunting of the Snark," in rebuking the government for accepting assertions about detainees simply because the allegations appeared in multiple intelligence reports. "Lewis Carroll notwithstanding, the fact that the government has 'said it thrice' does not make an allegation true," he wrote. Garland and two other D.C. appellate court judges ruled in the case that Parhat, an ethnic Uighur, had not received a fair hearing before a military tribunal and ordered the government to release, transfer, or retry him.

"If you look at his opinion in the Uighur case [Parhat], he brought along judges from very different parts of the political and judicial spectrum," Gorelick told Legal Times. "That is precisely what one would want on the Supreme Court."

Of course, Garland isn't the only name being floated for the high court. Legal Times reports that some appellate specialists from The Am Law 100 are also getting attention: Wilmer's Seth Waxman and Sidley Austin's Virginia Seitz.

WHITE-COLLAR
Attorney Who Worked with Jenkins & Gilchrist Indicted in Tax Shelter Scheme

Despite its disastrous performance in the KPMG case (second item), the Manhattan U.S. attorney's office continues to press on with its investigation of fraudulent tax shelters. Dow Jones reported Friday that prosecutors have indicted John Ohle II, a former lawyer and co-owner of the Dumaine Group in Chicago. Ohle is charged with conspiracy, tax evasion, and interfering with the administration of internal revenue laws. Prosecutors claim that he conspired with lawyers at the defunct Jenkins & Gilchrist to market a tax shelter that helped wealthy investors avoid paying taxes.

Ohle appears to have chosen his lawyer wisely. David Spears of Spears & Imes represented Jeffrey Stein, the lead defendant in the KPMG case. Spears was instrumental in persuading Manhattan federal district court judge Lewis Kaplan to dismiss the indictment against his client in a landmark 2007 ruling that was upheld by the Second Circuit in August. Spears is promising an equally spirited defense for Ohle. "[He] did not commit any crimes and we're going to defend vigorously against these charges," the lawyer told Dow Jones.

IP
King Estate Mulls Lawsuits over Obama Memorabilia

Because we live in perhaps the bluest city in the country, we've seen just about every Obama-themed piece of merchandise that's out there. Business appears robust, and you know what that means: litigation over the spoils. On Saturday, The New York Times reported that Isaac Newton Farris, Jr., a nephew of Martin Luther King, Jr., and the president of the King Center in Atlanta, is considering suits against vendors who sell unauthorized images juxtaposing Obama and King.

"It's not about the money," Farris told the Times. "The law says that if you don't assert and protect the right to an image you can lose that right." On the other hand, he added, it is about the money. "We do feel that if somebody's out there making a dollar, we should make a dime," Farris said.

The Times reports that Kilpatrick Stockton's Joseph Beck represents the King estate. According to Beck's bio, the Kilpatrick partner has represented the King estate in previous disputes with CBS and Gannett over the copyright of King's "I Have a Dream" speech. He also reports winning a summary judgment against a manufacturer and distributor of magnets displaying a likeness of King's image.

Vendors: You've been warned.

WHITE-COLLAR
Fraud Trial of Art Patron Features Younger Naftalis

At the Litigation Daily, we know one Naftalis well. And that would be Gary, cochair of Kramer Levin Naftalis & Frankel, who's a great white-collar defense lawyer and a thoroughgoing mensch. But we recently learned that there are a couple of other Naftalis lawyers to look out for.

Gary's son Benjamin Naftalis is one of the Manhattan assistant U.S. attorneys prosecuting the fascinating case of opera buff and accused fraudster Alberto Vilar. Vilar, an aggressive investment manager who made untold fortunes before the tech bubble burst in 2000, was also an arts devotee who pledged millions of dollars to opera houses throughout the country. In 2005, he and his business partner, Gary Tanka, were indicted for stealing money from their clients--and prosecutors say that some of the stolen funds went to fulfill Vilar's promises to the opera companies. (Here's James Stewart's utterly absorbing New Yorker piece about Vilar's rise and fall.)

The case went to the jury Friday. Vilar has been represented by Herald Price Fahringer, and Tanka has had Glenn Colton of Wilson Sonsini Goodrich & Rosati. The elder Naftalis told us he's been down to the federal courthouse to check out his son's performance, which he described as "one of the great thrills" of his life. "He's got a real nice style," said Gary about Benjamin.

Gary also informed us that his other son, Joshua, is a litigator at Wachtell, Lipton, Rosen & Katz. "Two best lawyers in the family," said Gary. Like we said, the man's a mensch.

WHITE-COLLAR
Supporters of Indicted Miami Attorney to Hold Fundraiser

The Miami defense bar's support for indicted attorney Ben Kuehne has been unwavering since prosecutors first charged Kuehne--who okayed legal fees paid by a drug kingpin--with money laundering in February.  Lawyers were outraged that Kuehne, who worked for Vice President Al Gore during the recount and is well respected in Miami, had been targeted for doing his job. "It's now official: It's a crime to be a criminal defense attorney," Miami lawyer Milton Hirsch told the Daily Business Review at the time of Kuehne's indictment.

Kuehne's defense--mounted by Howrey--is getting more expensive by the day. To help defray the costs, Kuehne's supporters are holding a fundraiser this Thursday at the Miami restaurant Christabelle's Quarter. According to The National Law Journal's report previewing the fundraiser, the minimum contribution is $200. (Here's the e-mail invitation.) Kuehne's supporters are also expected to be on hand for arguments on Howrey's motion to dismiss the indictment. Those will take place before Miami federal district court judge Marcia Cooke on November 25.

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