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COURT POISED TO DECIDE REACH OF SARBANES-OXLEY Securities lawyers who aren’t keeping an eye on the U.S. Court of Appeals for the 11th Circuit might want to start. The Atlanta-based court is poised to be the first circuit to rule on an important issue about Sarbanes-Oxley, the corporate responsibility measure signed into law last year. At issue: Can aggrieved investors use Sarbanes-Oxley to revive suits against companies for alleged corporate shenanigans that occurred before the law took effect? So far, three federal trial judges have said no � one judge, in Miami, said yes. The Miami case is before the 11th Circuit. The plaintiffs, former Dean Witter investors suing the company for making unauthorized trades in 1998, are being represented by Conor Crowley of D.C.’s Finkelstein, Thompson & Loughran. Last March, Judge Richard Lazzara of the U.S. District Court for the Middle District of Florida found that Section 804 (b) of the law allowed the investors to sue, even though the statute of limitations on their claims had expired by the time Sarbanes-Oxley was signed into law. To support his decision, the judge quoted from a section-by-section analysis of the law entered into the Congressional Record. The author of Section 804 (b), Sen. Patrick Leahy (D-Vt.), wrote that the provision, “by its plain terms, applies to any and all cases filed after the effective date of the Act, regardless of when the underlying conduct occurred.” During the Nov. 21 oral argument, neither Chief Judge J.L. Edmondson nor the other members of the panel � 11th Circuit Judge Stanley Birch Jr. and visiting 9th Circuit Senior Judge Joseph Jerome Farris � sounded convinced by Lazarra’s decision or Crowley’s efforts to defend it. “Congress has to be explicit,” Birch said. Added Edmondson: “You put us in a difficult situation” by asking the judges to pore over what individual senators may have said during a debate. Arguing for Dean Witter’s parent company, Morgan Stanley DW Inc., William Pratt of the New York office of Kirkland & Ellis had a much easier time before the panel. He argued that judges in the Eastern District of Virginia, the Southern District of New York, and the Central District of California reached the opposite conclusion on whether old claims could be revived by Sarbanes-Oxley. In the Eastern District case, Glaser v. Enzo Biochem, which concerns allegations of securities fraud, the plaintiffs are being represented on appeal by Chicago solos Michael Rovell and Lisa Fair, while Robert Vieth of Cooley Godward in Reston, Va., has been retained by the defense. Now pending before the 4th Circuit, the case has yet to be briefed. � Jonathan Ringel, Fulton County Daily Report PARTY’S OVER Dewey Ballantine has canceled its firmwide annual dinner because the event no longer reflects the global outlook and composition of the firm, says co-chairman Sanford Morhouse. A decades-old tradition, the black-tie dinner had long given associates an opportunity to poke fun at the firm and its partners by writing and performing parody songs. But at the last dinner, held in January at the Plaza Hotel in New York, the firm’s closing of its Hong Kong office was lampooned with a version of “Hello, Dolly” that made liberal use of Asian stereotypes. After the New York Law Journal reported on the dinner in March, Dewey Ballantine issued a firmwide apology. Morhouse says the incident “did not enhance the annual dinner in the eyes of management,” which had decided the sophomoric humor typical of the dinner was no longer appropriate. In lieu of the annual dinner, for which the firm flew in scores of lawyers from offices around the world, Morhouse says the firm likely will plan a number of New York events for different practice groups. � Anthony Lin, New York Law Journal GAINFULLY EMPLOYED The D.C. office of Winston & Strawn has picked up prominent employment law specialist Mark de Bernardo from Littler Mendelson. The founder and former managing partner of Littler’s 15-lawyer D.C. office, de Bernardo also launched the Council for Employment Law Equity, where he serves as general counsel. He brings with him clients including Halliburton, 7-Eleven Inc., and Reed Elsevier Group PLC. He says he was drawn to Winston because the firm is “better equipped for big cases, in terms of reputation and expertise in litigation,” compared with employment law specialty firm Littler. He’s also hoping to take advantage of the ability to cross-sell at a full-service firm. “Three of my clients have already referred corporate work to me here,” he says. Also making the move to Winston from Littler is partner Joseph Schuler. � Jenna Greene TATTOO YOU According to Jonathan Katz of Silver Spring, Md.’s Marks & Katz, one of the lessons to be learned from his recent victory on behalf of client Marcie Anna Betts before an administrative law judge is, “People posing nude on the Internet can be anyone, even your next-door neighbor. It’s a personal choice, and it doesn’t harm anyone.” In May 2002, photos of a naked Betts showcasing her tattoos appeared on a Web site dedicated to tattoo and body-piercing culture. Betts and her husband had taken the photos and sold them to the site for $300. In November 2002, Betts was hired by the Roxbury Correctional Institution in Hagerstown, Md., as a prison guard. After a few months on the job, her nude photos came to the attention of prison officials. The warden fired her for conduct unbecoming a correctional officer, contending that Betts’ photographs represented an increased security risk should they fall into inmates’ hands. Betts appealed her firing to the Maryland Office of Administrative Hearings, where she was represented in August and September proceedings by Katz and Lawrence Walters of Altamonte Springs, Fla.’s Weston, Garrou & DeWitt, who participated from his office via speakerphone. On Nov. 12, the administrative law judge, Harrison Pratt, ruled that Betts’ “right to take photographs of herself and publish them far outweighs the minimal impact that such activities ‘might’ have on the [prison system's] ability to protect staff and inmates and to efficiently operate its facilities.” Pratt declared that Betts should be reinstated with full pay and benefits. The state was given 30 days to decide whether it will file for judicial review. � Joel Chineson POACHED Clifford Chance has lost another top partner to a rival firm. Leora Ben-Ami, the firm’s intellectual property group leader in the Americas, and two partners, Thomas Fleming and Patricia Carson, are leaving the London-based firm’s New York office for the patent litigation group at Kaye Scholer in Manhattan. For Clifford Chance, the exits follow the October departure of antitrust rainmaker Steven Newborn and three other partners for the D.C. office of Weil, Gotshal & Manges. � Christine Hines CLOSING DOWN K STREET “K Street,” the HBO series that melded quasi-lobbyists and political consultants with real-life advocates and politicians, is dead after 10 episodes, according to Daily Variety. An HBO official confirmed the story’s accuracy. “I’m told I’m the only one who really liked it,” says Cynthia Merifield Tripodi, a lobbyist at Public Strategies who helped advise actress Mary McCormack on her character. The show, whose season finale aired Nov. 23, also featured guest appearances by several real-life lobbyists and lawyers. Williams & Connolly partner Howard Gutman and Cadwalader, Wickersham & Taft partner Michael Horowitz made appearances. � T.R. Goldman, Influence PYRRHIC PATENTS There was some good news � and some bad � for the U.S. Philips Corp. in a recent decision from an International Trade Commission administrative law judge. The electronics company, which owns patents related to recordable compact discs, sued the Taiwanese CD makers Gigastorage Corp. and Princo Corp. for patent infringement. Philips won, but Judge Sidney Harris also ruled that the company engaged in patent misuse, rendering the patents unenforceable. Philips counsel Garrard Beeney, a Sullivan & Cromwell partner in New York, stresses the positive: “We were very pleased that the administrative law judge decided all 28 claims of all six patents [were] infringed.” Still, Philips has asked the ITC to review the decision. Philips’ patents were part of a pool, a common practice in the electronics industry, where multiple companies group their patents together and license them collectively. But Harris disapproved of the royalty rates for licensing the patents. Also, says Alexander Hadjis, a Fish & Richardson D.C. partner who represented the Taiwanese companies, “There was an illegal tie to unnecessary patents in the pool.” � Christine Hines AT LEAST THEY DIDN’T ANSWER ‘ERIK’ How quickly they forget � or maybe they never knew in the first place. On an episode of the quiz show “Jeopardy!” aired Nov. 25, contestants were asked to identify the Hispanic lawyer whose nomination to a federal appeals court was blocked this year. None of the three participants buzzed in, and host Alex Trebek, with a hint of disappointment, gave the correct question: “Who is Miguel Estrada?” Estrada would have been worth $2,000 if anyone had identified him. In the same category, “Bush Men,” contestants correctly identified Vice President Dick Cheney and former spokesman Ari Fleischer. For Estrada, a D.C. partner at Gibson, Dunn & Crutcher, his place in pop culture obscurity is secure. � Jonathan Groner THE OLD GANG Like a lot of people at their 30-year reunions, Joseph Connolly was having a little trouble recognizing the faces of some of the people milling around him. “We don’t really get to see each other that much,” said Connolly, now a partner in the Philadelphia office of Pittsburgh’s Eckert Seamans Cherin & Mellott, of his fellow attendees, about 80 of whom had come from all over the country to attend the cocktail reception and dinner party. One face standing near the bar was easily recognizable, though. “Hi, Stephen,” Connolly said casually to Supreme Court Justice Stephen Breyer. So it went at a recent assemblage of the old Watergate prosecution team. The meeting was held Nov. 1 at the Grand Hyatt Hotel in D.C. to commemorate the 30th anniversary of the “Saturday Night Massacre,” when President Richard Nixon fired special Watergate prosecutor Archibald Cox. Attorney General Elliot Richardson and Chief Deputy William Ruckelshaus refused Nixon’s order and resigned, leaving Solicitor General Robert Bork to do the deed. Within days of Cox’s firing, scores of articles to impeach Nixon were introduced in the House. The highlight of the reunion came when the 91-year-old Cox, too sick to attend, called in on a speakerphone to congratulate his once fair-haired team now gone gray. “It was great just to hear his voice,” says Richard Davis, now a partner with New York’s Weil, Gotshal & Manges. “It made you remember what it was all about.” � Douglas McCollam, The American Lawyer

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