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NIKE ON FIRM FOOTING WITH ALL-STAR LEGAL TEAM Nike Inc. is calling in the big guns in trying to persuade the U.S. Supreme Court to review a California free-speech ruling that stunned conservatives and liberals alike. The Oregon-based shoemaker has assembled a star-studded legal team it hopes has the firepower to convince the high court not only to take the case, but also to reverse the California Supreme Court, which held in May that Nike and other companies could be sued for false advertising over policy statements in public relations campaigns. Besides its longtime lawyers at Brobeck, Phleger & Harrison, Nike has called on the services of noted Harvard Law School professor Laurence Tribe and former Acting Solicitor General Walter Dellinger. In addition, Nike hired Goldstein & Howe, a powerhouse Washington, D.C., firm recognized as one of the nation’s best in dealing with the U.S. Supreme Court. “Our client considers this a very important issue and wanted to enhance its California team with people who regularly practice before the Supreme Court,” Brobeck partner and Nike lawyer David Brown said last week. The California Supreme Court shocked the business world and free-speech advocates in May when it voted 4-3 that Nike statements denying allegations that some of its overseas factories are sweatshops were a form of commercial speech not protected by the First Amendment. Liberal groups like the American Civil Liberties Union and conservatives such as Sacramento’s Pacific Legal Foundation were equally appalled by the decision, and Nike soon found itself surrounded by allies. In the past two weeks, the U.S. Supreme Court, in Nike Inc. v. Kasky, 02-575, has been swamped with amicus curiae briefs filed by 32 leading media outlets — including ABC, NBC, CBS, The New York Times Co. and The Washington Post Co. — as well as the California Chamber of Commerce and corporate big hitters such as Microsoft Corp. and Bank of America. All want the high court to grant certiorari and reverse the ruling. But as impressive as the amici are, it’s Nike’s lawyers that stand out. Tribe is a ubiquitous presence before the high court, in the media and before Congress on issues of major importance. Dellinger has published articles on constitutional issues in many major publications, has testified before congressional committees more than 25 times and as assistant U.S. attorney general in the mid ’90s issued opinions on issues ranging from the president’s authority to deploy troops in Haiti and Bosnia to whether the president may decline to enforce statutes he believes are unconstitutional. Goldstein & Howe, meanwhile, is the only firm in the nation devoted principally to litigation before the nation’s highest court. Partner Thomas Goldstein has worked on several important cases, including Bush v. Gore. If they’re nervous facing such an influential gang, though, the lawyers at San Francisco’s Bushnell, Caplan & Fielding, who represent Marc Kasky, aren’t saying. Partner Alan Caplan, the firm’s spokesman on the Nike litigation, didn’t return calls for comment. – Mike McKee DA DREAMS It’s never too early to start raising money for an election, even if it’s nearly a year away. That means the three would-be candidates for San Francisco district attorney have filed their intentions to solicit contributions. First among them was DA Terence Hallinan, who filed his papers with the Department of Elections two years ago. Then defense attorney Bill Fazio, who has twice lost to Hallinan, filed his preliminary paperwork in July. And two weeks ago, Deputy City Attorney Kamala Harris quietly signed her intention to accept donations for a candidacy. Just saying you’re going to solicit funds doesn’t make you an official candidate. It’s just a start. The time to file official nomination papers begins July 15. The window closes Aug. 9. Hallinan said last week that he was definitely running. And to show he’s serious, there’s a combined fund-raiser/birthday party planned for Dec. 4 at Sabella’s on Fisherman’s Wharf. It’ll be Hallinan’s 66th. The most interesting thing about the party is that it will be hosted by Supervisors Tom Ammiano and Gavin Newsom and attorney Angela Alioto, all three probable mayoral candidates. Fazio said he can’t wait to get another shot at Hallinan and welcomes Harris into the race. “She doesn’t make it any more difficult for me, but there may be some hidden benefits,” Fazio said last week. Would that be taking liberal votes from Hallinan? “That’s a possibility,” he acknowledged. Harris remains somewhat a phantom candidate — without high visibility and with a reluctance to talk about why she wants to be district attorney. She is a former Alameda County prosecutor who crossed over to the San Francisco DA’s office. She left two years ago following an unspecified disagreement with Hallinan and joined the city attorney’s staff. Hallinan said, “I assumed she was running against me since the day she resigned.” City Attorney Dennis Herrera said Harris will have to obey his policy of no politicking on the job. After hours is OK. But come Aug. 8, the official end of filing for office, “she would have to take a leave,” Herrera said. “I don’t anticipate that there will be any problem.” Despite Hallinan’s insistence that he will run for a third term, some city officials think he may be a stalking horse for Assistant District Attorney James Hammer. Hammer earned Hallinan’s gratitude by winning the high-profile dog mauling case. He was rewarded with a promotion to head the homicide unit. Hammer does make the political rounds in the city, according to others who attend these functions. But is he running? “I would never run against my boss,” he said, “and you can underline that.” – Dennis J. Opatrny EMOTIONAL ISSUE Michael Newdow’s whirlwind (some might say “desperate” or “futile”) defense of his win in the 9th Circuit U.S. Court of Appeals’ controversial Pledge of Allegiance ruling continued Thursday. After a morning flight back from the East Coast following an appearance on MSNBC, Newdow walked seemingly unfazed into a hornet’s nest — a debate at the conservative Federalist Society’s luncheon, held at the swanky Banker’s Club on California Street. Newdow squared off against constitutional scholar and conservative professor Michael Uhlmann. Later, moderator and former U.S. Attorney Joseph Russoniello joined in the fun, a discussion that was one — maybe two — notches below an all-out shouting match. Newdow spent a good deal of time spouting legal arguments in defense of the ruling that the words “under God” violated the Establishment Clause, but he more than held his own otherwise. He came up with easily the best line of the day when he said he was upset by the expression, “There are no atheists in foxholes.” “They’re all atheists in foxholes!” he shouted. “That’s why they keep their heads down!” Uhlmann, on the other hand, spent little time debating Newdow directly, other than shooting some electrified zingers his way. Instead, he spent most of his time lambasting the Supreme Court’s jurisprudence in the Establishment Clause area. “This body of law is a mess, if not a disgrace,” Uhlmann said, blithely adding that even the members of the Supreme Court don’t take it seriously anymore. That led to Newdow’s primary victory: a concession from Uhlmann that he couldn’t find fault with Senior Judge Alfred Goodwin’s ruling under current Supreme Court precedent. “I can’t do it while sticking to the baggage of modern Supreme Court theory,” Uhlmann said. He had plenty to say about that theory though, offering a searing critique that pulled no punches from the justices — particularly Sandra Day O’Connor, whom he said changes her mind about what test to use practically every time the court gets a new religion case. Russoniello also criticized Newdow’s standing in the case (which rests on his 9-year-old daughter) and suggested that Newdow’s true agenda was to make America godless. He told the crowd of about 50 diners that the absence of the recognition of a Supreme Being is the same as saying that there is no God. – Jason Hoppin INVESTIGATION THREAT On the heels of U.S. Magistrate James Larson’s injunction ordering the nation’s largest disability insurer to follow the law, California Insurance Commissioner-elect John Garamendi says he wants to launch an investigation into the company. UnumProvident, which issues one out of every four employment disability policies in the country, was ordered to stop using biased medical examiners, destroying medical records and denying legitimate claims following a $7.67 million jury verdict in favor of a Berkeley chiropractor suffering from chronic pain. “There will be a serious investigation. There’s not just smoke here, there’s fire,” Garamendi said. “There’s a pattern. The courts have found the company acted improperly.” Garamendi said he will inquire about the company in upcoming transition meetings with the staff of outgoing Insurance Commissioner Harry Low. The commissioner’s office has said it is looking into the company, but that its audit was routine. The company has recently been hit with a wave of lawsuits and negative publicity. NBC’s “Dateline” and CBS’ “60 Minutes” have aired stories with allegations by former employees that the company pressured them to deny claims. Larson was the first federal judge to issue an injunction against the company. In doing so, he refused to disturb the jury’s verdict, including $5 million in punitive damages. “If there were one case, that would be one thing,” Garamendi said. “But there are far too many cases.” The company would not respond to threats of an investigation. “We’re very proud of our organization and would appreciate the opportunity to discuss the facts about our company with Mr. Garamendi face to face, rather than through the media,” said Tom White, spokesman for UnumProvident. – Jason Hoppin

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