The Am Law Litigation Daily: January 8, 2009

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January 8, 2009 9:00 AM

The Am Law Litigation Daily: January 8, 2009

Posted by Dimitra Kessenides

Edited by Andrew Longstreth

REGULATORY
Reid Weingarten Helps His Buddy Eric Holder Prepare for Confirmation Hearing
After reading about Pennsylvania senator Arlen Specter's attack on attorney general nominee Eric Holder, we got to wondering who was helping Holder prepare for his January 15 Senate confirmation hearing, which many are predicting will be a contentious affair.

So we called Reid Weingarten of Steptoe & Johnson, a friend of Holder's since the early seventies, when they both worked in the Justice Department's Public Integrity section. After all, it was Weingarten, now a renowned white-collar litigator, who helped Holder get ready for the 2001 congressional hearing on President Clinton's pardon of fugitive financier Marc Rich, which has turned out to be the most controversial aspect of Holder's AG nomination. Any chance, we asked, that Weingarten was on Holder's prep team?

"Of course," Weingarten said. "I'm a lawyer. I'm smart. I know the facts. And he's like a brother to me."

Weingarten told us he's not surprised by all the attention that Holder's role in the Rich pardon has received. "We saw it coming," he said. "I think much of this is politics."

Weingarten will be on hand when Holder appears before the Senate Judiciary Committee later this month. After that, he said, it's back to preparing his defense of the former president of Monster.com, whose criminal options backdating trial is scheduled to begin January 26 in Manhattan federal court.

PRODUCT LIABILITY / MASS TORTS
Citing Preemption, Minnesota Court Dismisses Defibrillator Suits Against Medtronic
The folks at Drug and Device Law are already calling a Minnesota federal district court judge's ruling to dismiss with prejudice scores of product liability cases involving a Medtronic cardiac defibrillator system "an early entry for one of the top ten decisions of 2009." Judge Richard Kyle's ruling in the Sprint Fidelis consolidated cases is considered to be the first major decision to rely on the Supreme Court's 2008 ruling in Riegel v. Medronic, Inc., which found that suits against medical device makers are preempted by federal law.

Medtronic recalled the Sprint Fidelis leads from the market in October 2007, after some patients implanted with the device died and others reported complications. Soon after the recall, scores of plaintiffs across the country filed suit against Medtronic, claiming, among other things, negligence, fraud, and strict product liability. In February the Judicial Panel on Multidistrict Litigation consolidated 27 of those actions and sent them to Minnesota. (Other cases were subsequently added to the docket in Minnesota.)

In dismissing the complaint, Judge Kyle went to great lengths to show his sympathy for victims of the recalled defibrillators. "Like qualified immunity, the doctrine of federal preemption also leaves some plaintiffs without judicial recourse to pursue claims for damages," he wrote. "In one recent example, hundreds of people injured by the release of noxious gas following a 2002 train derailment in Minot, North Dakota, were left without any remedy because their claims were preempted by the Federal Railroad Safety Act." In the Medtronic suits, the judge wrote, plaintiffs' claims were preempted by the Food, Drug, and Cosmetic Act.

Charles Zimmerman of Zimmerman Reed, chairman of the Sprint Fidelis plaintiffs' steering committee, told Finance and Commerce that he was considering his options.

Medtronic is represented by Mayer Brown attorneys Kenneth Geller and Daniel Ring; Rick Robinson of Fulbright & Jaworski; and George Soule of Bowman and Brooke.

ANTITRUST
New Jersey Judge Dismisses Boies Schiller Antitrust Complaint Against Chinese Magnesite Producers
Magnesite, a crystalline mineral used in slag furnaces and fertilizer, is harder stuff than vitamin C. It's also turning out to be a tougher object of antitrust litigation for Boies, Schiller & Flexner, which has sued Chinese manufacturers of both products in U.S. courts. In November we reported that a Brooklyn federal district court judge denied a motion by Chinese vitamin C producers to dismiss the Boies Schiller suit. But a half-dozen Chinese magnesite manufacturers were more successful: In a 62-page, December 30 order, a New Jersey federal district court judge threw out the Boies Schiller antitrust case against them on subject matter jurisdiction grounds.

The complaint alleged that the 13 biggest producers and exporters of magnesite in China conspired to keep prices artificially high. The case was brought in 2005, but for two years the defendants did not file responses. In 2007 Boies Schiller moved for default judgment.

Six of the defendants then decided to respond. Represented by Kramer Levin Naftalis & Frankel, they asked Chief Judge Garrett Brown to dismiss the case. In his December 30 order, the judge granted the producers' motion to dismiss and denied Boies Schiller's motion for default judgment. (He did rule that the plaintiffs could amend their complaint.)

Kramer Levin partner Jonathan Caplan told us he was still studying the opinion, but that he was pleased with the result. Judge Brown, he said, "took a close look at the issues."

David Stone of Boies Schiller (not surprisingly) offered a different view. Stone told us he believes the decision is wrong, and his team is considering whether to amend the complaint or appeal Judge Brown's ruling.

APPELLATE / SPORTS
Covington Lawyer Defends Pat Downs at Niners Games
If the San Francisco 49ers had as much spirit and talent as their outside counsel, they might not have gone 7-9 and missed the playoffs again.

On Tuesday, Covington & Burling partner Sonya Winner (not a bad name for a litigator, right?) showed some quick thinking in oral arguments before the California Supreme Court in a case challenging pat downs of football fans at Candlestick Park, the 49ers' stadium. The plaintiffs in the case, two 49ers season ticket holders represented by Ann Brick of the American Civil Liberties Union, claim that the searches violate a privacy clause in California's state constitution.

The justices had some tough questions for Winner, but she stayed on her feet. At one point, according to the San Francisco Chronicle, Chief Justice Ronald George asked the Covington partner: "How would you feel if, every time you came into this building, you had to undergo a pat-down search?" Winner responded that the scenario George posited would involve "the coercive power of government," and that avoiding places in the private marketplace is easier than avoiding government buildings.

At another point, according to The Recorder, Justice Marvin Baxter asked Winner about the possibility of 49ers personnel conducting strip searches. In that case, Winner replied, the team "would be committing economic suicide" and "playing their games to an empty stadium."

Despite Winner's efforts, the California justices appeared to be inclined to send the case back down to the trial court, according to The Recorder. "This case should be going back where each of the sides can come up with evidence," Justice Joyce Kennard said. "We simply do not have that at this point in the proceedings."

PRO BONO
Sullivan & Cromwell Teams up with ACLU to Challenge Arkansas Unwed Parenting Ban
Like so many gays and lesbians, Sullivan & Cromwell partner Stacey Friedman viewed the 2008 election as tragic. Her happiness at Barack Obama's victory was overshadowed by her dismay at the passage of measures banning same-sex marriages in California, Florida, and Arizona.

After the election, Friedman got in touch with her friends at the American Civil Liberties Union's Lesbian Gay Bisexual Transgender Project to see how she could fight some of the antigay laws. Her assignment: challenge a new Arkansas law that makes it illegal for unmarried couples to adopt children or serve as foster parents.

With the help of S&C, the ACLU filed suit on behalf of 29 adults and children challenging the law, arguing that it violates federal and state constitutional rights to equal protection.

Friedman says Arkansas's adoption law, which was the subject of a recent editorial in The New York Times, is a not-so-thinly-veiled attack on gays. According to Garrard Beeney, another S&C lawyer who's working on the case, the law was prompted by a 2006 Arkansas Supreme Court decision that found no basis to deny gays and lesbians the right to adopt. Antigay activists then mobilized to reverse the impact of the ruling.

One of the most tragic stories mentioned in the ACLU complaint is that of an infant girl named W.H., who was removed from her parents by Arkansas's Department of Human Services after she was found to have suffered serious injuries indicating abuse. Her grandmother, a registered nurse in Oklahoma who has lived with a same-sex partner for nine years, wants to take custody of W.H. But under Arkansas's new law, she would be barred from taking custody.

"It's the most needy children who are hurt most by this," said Friedman.

CORRECTION
In yesterday's item "Patent Aggregator Offers a Third Way to IP Defendants," we said that Sanyo North American, a defendant in an infringement action brought by Acacia Research, had accepted a deal offered by RPX, the anti-patent troll company that purchased licenses from Acacia in the midst of the litigation. A Sanyo spokesperson says the company is not, in fact, a member of RPX.

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