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SECURITIES SNIPING IN THE CITY OF BROTHERLY LOVE The Network Associates securities fraud case is back in the spotlight. First, it was noteworthy because of U.S. District Judge William Alsup’s novel handling of the case. The judge gave lead plaintiff status to a Philadelphia pension fund, but refused to appoint its chosen counsel. The fund then backed out of the lead spot. Now, a letter the pension fund sent to Alsup has emerged as a focus of a grand jury probe in the City of Brotherly Love, according to The Philadelphia Inquirer. A recent series of subpoenas there appear to focus on In Re Network Associates Securities Litigation, 99-1729, including whether a law firm engaged in “pay for play” with Philadelphia’s Board of Pensions and Retirements. During a 2001 newspaper interview, City Controller Jonathan Saidel said he received contributions from lawyers at Barrack, Rodos & Bacine and that they should share in the city’s legal work. In 1999, a questionnaire Alsup sent to prospective lead plaintiffs was returned on behalf of the Philadelphia fund by Saidel, who stated that he would have primary responsibility to manage the suit. Alsup later granted lead plaintiff status to the city, but refused to appoint Barrack to litigate the case since the city had not put the legal contract out to bid. He cited articles submitted by another firm questioning Barrack’s political donations to New York Comptroller H. Carl McCall, who controlled large New York pension funds that Barrack represented in court. Alsup also ordered the city to provide a sworn declaration that any contract it gave out was not influenced by political donations. For various reasons, the city backed away from the suit. Alsup later appointed an individual investor to run the suit, and Lieff, Cabraser, Heimann & Bernstein to litigate it. It settled last year. In an apparent contradiction to his quoted comments, however, Saidel signed a letter to Alsup saying that “the board and its members do not know of campaign contributions made to public officials by any of the lawyers and, for obvious reasons, do not want to know.” – Jason Hoppin KNOW YOUR ENEMY Who better to wage a legal battle against the Lawrence Livermore National Laboratory than a lawyer who used to work there? San Francisco solo Anthony Bothwell, who was director of public affairs at the lab from 1983 until 1985, litigates cases against his old boss. In Zipoli v. Regents of the University of California, 02-04858, he represents two lab guards who were allegedly fired when they told managers about security weaknesses. Although one has been rehired, the other is still out of work. This isn’t the first time Bothwell has crossed swords with his old employer. Bothwell, who went to law school after he left the lab, represented another whistle-blower, David Lappa. Lappa filed suit in 1998, alleging that the lab ousted him after he brought attention to plutonium safety issues. Bothwell and Gwilliam, Ivary, Chiosso, Cavalli & Brewer lawyers negotiated a $250,000 settlement for Lappa in 2001. Although Bothwell has other clients — he represents pilots who object to airline rules that call for them to retire at 60 — he is a vocal critic of the lab. He recently wrote a letter to Gov. Gray Davis calling for greater oversight of the facility. He also plays an informal advising role in Doggett v. Regents of the University of California, another lab whistle-blower case litigated by Gwilliam, Ivary. Bothwell’s lab experience is valuable, said Jan Nielsen, a Gwilliam, Ivary, attorney working on Doggett. “Bureaucratic agencies have a mentality that he is familiar with,” Nielsen said. – Jahna Berry DEFENSE SPENDING Santa Clara’s Administrative Office of the Courts spent $47,600 on outside counsel to fight a public records request that evolved into litigation. The San Jose Mercury News filed a federal suit against Santa Clara County Superior Court in 2001 after court administration refused to hand over an electronic copy of the civil case management database. The courts settled the suit in January, agreeing to release a copy in March — the same time the public is scheduled to receive Internet access to the database. The Administrative Office of the Courts retained the California attorney general’s office and Howard, Rice, Nemerovski, Canady, Falk & Rabkin partner Jerome Falk Jr. to fight the federal lawsuit. AOC General Counsel Michael Bergeisen said the serious constitutional questions raised in the suit warranted outside counsel. “The Mercury News alleged the courts violated the First Amendment and the federal Constitution and sought in its complaint to obtain information that the court felt and we agreed was not required to be provided,” Bergeisen said. He said the courts had agreed to hand over much of the information before the suit was filed, but technology issues slowed the exchange of information. “The Mercury News decided it didn’t want to wait any longer and decided to go to court,” Bergeisen said. However, Gray Cary Ware & Freidenrich partner James Chadwick, who represented the newspaper, said they tried for more than a year to obtain the database before filing suit. The newspaper wants the database in electronic form so it can compile court statistics and report on litigation trends. – Shannon Lafferty SUPRISING REVERSAL To David Goodwin, there was only one thing significant about the California Supreme Court’s Feb. 3 ruling in an insurance case. It reversed Justice H. Walter Croskey. Goodwin, an insurance coverage specialist at Heller Ehrman White & McAuliffe, says he believes the ruling marks the first time the Supreme Court has ever overturned the Second District Court of Appeal justice in an insurance matter. “If he writes an opinion [on insurance], it’s going to be very well thought out and very solid,” Goodwin says. “So it’s surprising not to see the court affirm.” It’s easy to understand Goodwin’s reaction. Croskey, 69, literally wrote the book on insurance issues. The Rutter Group’s “California Practice Guide,” the insurance bible used by judges on the appellate and trial benches since 1995, was co-authored by Croskey. In addition, Croskey, who has been on the appellate bench since 1987, has written several articles and authored many rulings on insurance issues. He also was one of the justices who first pushed judicial education on insurance issues. “It’s a particular expertise of his,” says David Ettinger, a partner in the well-known Encino-based insurance defense firm Horvitz & Levy. “And it’s widely known that’s an area of his expertise.” Croskey chuckles when asked whether Henkel Corp. v. Hartford Accident and Indemnity Co., 02 C.D.O.S. 1042 — which held that insurance benefits are not necessarily conferred to a successor corporation in a merger — was his first reversal. “I have no idea,” he says. “I have authored about 2,500 opinions since I came on the court in November 1987 — about 10 percent of which have been published. I have no way of tracking that.” Croskey is proud of helping birth judicial education on insurance issues, saying it’s something that’s not taught in law schools. “California judges now, in my judgment, are as sophisticated and knowledgeable as any judges in the country,” he says. Even so, Croskey refuses to wear the crown of insurance king of the courts. “I don’t regard myself as that much of an expert,” he says. “That’s OK if someone wants to say that, but I’m more modest than that.” – Mike McKee

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