The Am Law Litigation Daily: November 4, 2008

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November 4, 2008 9:00 AM

The Am Law Litigation Daily: November 4, 2008

Posted by Dimitra Kessenides

Edited by Andrew Longstreth

IP
General Practice Firms Dominate IP Survey
The push into intellectual property by full-service firms is a trend that's been going on for years, as anyone who's been following the red-hot market for lateral IP litigators can attest. And according to IP Law & Business's new Who Protects Innovation survey, it looks like the firms that invested in IP practices are reaping nice returns, which has not been welcome news for IP specialty shops.

Among the 22 firms that handled more than three matters for the world's 50 most innovative companies over the last year, only three were intellectual property boutiques, according to IP Law & Business. "Clearly many innovative companies in high-stakes patent litigation believe that IP litigation lawyers at general practice firms are more experienced in e-discovery and pack more overall litigation know-how and firepower," writes IP & Law Business contributor Erik Sherman.

Howrey takes top honors in the survey, with 15 mentions. Following are Fish & Richardson, with 14; Baker Botts and Quinn Emanuel, with 11 each; and Wilmer Cutler Pickering Hale and Dorr, with nine mentions. One bright spot for specialty firms was patent prosecution. Among the top 25 firms IP Law & Business cited in that area, 20 were specialty shops.

APPELLATE
Recapping Wyeth v. Levine: Does a Divided Court Mean a Narrow Ruling?
There was plenty of sound and fury surrounding yesterday's arguments in Wyeth v. Levine, the drug labeling case that addressed the controversial issue of federal preemption. But early reports suggest that the Supreme Court's decision may signify less than the hype that preceded it.

Our man at the Supreme Court, Tony Mauro of Legal Times, writes that after the hour-long argument, the justices appeared "torn." The case, Mauro warns, "could be decided narrowly, giving little guidance about broader preemption issues beyond the drug labeling."

The issue before the court is whether federal law should preempt a Vermont jury's $6.8 million verdict against Wyeth in a case brought by Diana Levine, who lost part of her right arm to gangrene after taking a Wyeth drug that had been approved by the Food and Drug Administration. Wilmer Cutler Pickering Hale and Dorr partner Seth Waxman argued for Wyeth, and David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel argued for Levine.

Although a sweeping decision about federal preemption may not materialize, the justices appeared to accept Waxman's argument that Wyeth acted responsibly, according to Mauro. "If you're telling me the FDA acted irresponsibly, then sue the FDA," Justice Antonin Scalia told Frederick during one exchange that echoed the Court's impatience with Frederick's arguments in the term's previous preemption case, Altria v. Good (scroll down to the fourth item).

APPELLATE
Has the Bush Administration Invaded the Judiciary's Territory?
On this election day, we thought it fitting to remind Litigation Daily readers of the bruising territorial battle between the president and the judiciary that's marked the eight years of the Bush administration. Where is the proper division between executive and judicial power--and has the Bush administration encroached on the judiciary's turf in the name of national security?

The American Lawyer's 2008 Litigation Supplement asked essayists on the right and left to consider that question, specifically in the context of the administration's handling of Guantánamo Bay detainees. Georgetown law professor Neal Katyal, who represented Osama bin Laden driver Salim Hamdan in the groundbreaking Supreme Court case and before a subsequent military tribunal, says only a president guilty of extreme overreaching could manage to suffer five resounding losses at the Supreme Court during a time of armed conflict--like "failing kindergarten," Katyal writes. "The [administration's] losses are occasioned by three significant interrelated legal and policy decisions: an overly exuberant view of the president's commander in chief powers, a willingness to radically depart from American traditions, and a deep distrust of the federal courts."

Not surprisingly, the essayists on the right--Baker & Hostetler partners David B. Rivkin, Jr., and Lee A. Casey--have a different take. Rivkin and Casey say it's the Supreme Court justices, and not the president, who have overstepped their bounds. "Although the president and his advisers have certainly acted assertively in many areas involving the war on terror," Rivkin and Casey argue, "they have done so within the Constitution's text and history, in accordance with past presidential practice and available judicial precedent. In fact, if there has been empire building since September 11, it has been by the U.S. courts, not by the president."

Whichever side you agree with--and whoever wins the election tonight--the next president will have some judicial bridges to repair.

--Alison Frankel

WHITE-COLLAR
McDermott's Abbe Lowell Helps Clear Nevada Governor in Corruption Probe
After spending years representing disgraced Republican lobbyist and convicted felon Jack Abramoff, McDermott, Will & Emery's Abbe Lowell can now point to a happier ending for a politico client. The government's corruption probe of Lowell's client, Nevada governor Jim Gibbons, has concluded without charges being filed against Gibbons.

"The prosecutors in the case confirmed what the governor has been saying for the past two years--that he did nothing wrong and there was no basis for any allegations against him," Lowell told the Las Vegas Review Journal.

In an interview with Zach Lowe at The Am Law Daily, Lowell detailed his defense tactics. The investigation centered on Gibbons's relationship with Warren Trepp, a defense contractor from Reno, during Gibbons's five terms in Congress; a former Trepp employee alleged that Gibbons earmarked contracts worth millions of dollars for Trepp's software company in exchange for campaign contributions and a Caribbean cruise. Lowell said he showed prosecutors evidence obtained by Trepp's attorneys from Steptoe & Johnson that proved the ex-employee had fabricated e-mails to support his story. (It didn't hurt, Lowell told the Am Law Daily, that the Steptoe team was led by his longtime pal Reid Weingarten.) And when the government said it wanted to interview Gibbons before dropping the investigation, Lowell insisted on strict ground rules to protect the governor.

"These allegations," Lowell said, "were absurd from the beginning."

ANTITRUST
Last Call: Yahoo! and Google Make Final Appeal to Justice for Proposed Partnership
The smart money seems to be betting against Department of Justice approval for an advertising-search partnership between Yahoo! and Google. But The Deal (subscription required) reports that lawyers for both companies are likely to make one final argument to antitrust regulators this week. Google and Yahoo have already limited the scope of their proposed deal, but it may not be enough to appease the government's concerns that any arrangement between two of the top three search engine companies would curtail competition.

The proposed transaction has attracted legions of lawyers on all sides. In September it was widely reported that Sandy Litvack, former vice-chairman of the Walt Disney Company, had been hired by the Department of Justice to help review the deal. The Deal reports that Yahoo! has brought on R. Hewitt Pate of Hunton & Williams (who recently represented Delta Air Lines in its merger with Northwest) and Latham & Watkins's Dan Wall to assist Michael Weiner of Skadden, Arps, Slate, Meagher & Flom. Google has turned to David Gelfand of Cleary, Gottlieb, Steen & Hamilton and attorneys at Wilson Sonsini Goodrich & Rosati.

Meanwhile, Microsoft--the search-advertising player that would be left in the cold if Google and Yahoo! ally--has been lobbying hard against the deal. In testimony to Congress, general counsel Brad Smith has warned that the deal could drive up prices for online advertisers. And according to The Deal, Microsoft's outside counsel, antitrust expert Rick Rule of Cadwalader, Wickersham & Taft, has argued at every opportunity that the deal would violate antirust laws.

SPORTS
Simpson Scores Another Win in America's Cup Litigation
Big-time sailing is apparently not a sport for the litigation-averse. In July we reported that Simpson Thacher & Bartlett client Société Nautique de Genève, whose syndicate Team Alinghi is the current holder of the America's Cup, won a ruling from the New York State Supreme Court's Appellate Division that it could race against the challenger of its choosing in the next America's Cup (scroll down to the fifth item). The Golden Gate Yacht Club, whose BMW Oracle Racing team is owned by Oracle CEO Larry Ellison, had challenged SNG's right to choose a challenger for the cup. On behalf of GGYC, Latham & Watkins has appealed the July ruling to the New York State Court of Appeals, where it's pending.

But SNG was also sued by Team New Zealand in both New York State Supreme Court and New York federal district court. TNZ, represented by Boies, Schiller & Flexner, claimed, among other things, that SNG had rigged the rules for the next America's Cup in its favor.

Simpson removed TNZ's state case to federal court, then filed a motion to dismiss both suits under the Federal Arbitration Act. The motion was argued in September before Manhattan federal district court judge William Pauley III. (Here's the transcript.) But before the judge issued his ruling, Boies Schiller abruptly dismissed both of TNZ's cases with prejudice last week.

Did Team New Zealand sense which way the wind was blowing in Judge Pauley's courtroom? Simpson Thacher partner Jonathan Youngwood, who argued the motion to dismiss for SNG, would only tell us that the hearing before Pauley "went very well" for SNG.

Boies Schiller partner Philip Bowman, who represented TNZ at the hearing, told us in an e-mail that the decision to withdraw the complaints was part of a compromise in which Alinghi will participate in an upcoming race organized by TNZ.

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