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EPA’S EPHEDRA BAN MAY BE A PRESCRIPTION FOR LITIGATION Instead of worrying, dietary supplement industry lawyers say, their clients might actually breathe a sigh of relief now that the U.S. Food and Drug Administration has announced a forthcoming ban on all ephedra products. But lawyers also predict the ban is likely to spark lawsuits challenging the regulation. “The mainstream supplement market is probably thinking it’s not a bad thing because it resolves the controversy regarding the most controversial ingredient,” says Hyman Phelps & McNamara partner A. Wes Siegner Jr., former counsel to industry group the Ephedra Education Council. On Dec. 30, U.S. Department of Health and Human Services Secretary Tommy Thompson announced the FDA will publish a rule concluding that dietary supplements containing ephedra “present unreasonable risks” to consumers. The ban will likely take effect later this year. Faced with multiple lawsuits and skyrocketing insurance costs, as well as declining consumer demand, many companies have voluntarily stopped manufacturing ephedra products. For example, Peter Reichertz, a partner at Sonnenschein Nath & Rosenthal, says his dietary supplement clients such as General Nutrition Centers have all ceased marketing ephedra products. Still, he says, he’ll be “very surprised” if the rule isn’t challenged in court. Siegner agrees, noting that some companies do still make products with ephedra, which is commonly used as a weight loss aid. Further, he says, numerous product liability suits against ephedra makers and marketers are pending (whether or not the companies currently use the ingredient), and the FDA regulation can potentially be used against them as evidence. Perhaps the most publicized suit was filed by the widow of Baltimore Orioles pitcher Steve Bechler, who died last year at age 23. She is seeking $600 million in damages against the dietary supplement company that made the product she claims caused his death. The ephedra ban is the first time the FDA has intervened to prohibit a dietary supplement. The agency has limited authority to regulate the industry under the Dietary Supplement Health and Education Act of 1994. Several bills are pending in Congress to toughen the law, but now that the FDA has taken action, industry lawyers hope that Congress will find it unnecessary to reopen it. “The main message [of the ban],” says Sidley Austin Brown & Wood food and drug law specialist Scott Bass, “is that the FDA is finally using the power that Congress gave it.” � Christine Hines BONUS BONANZA It was a happy New Year for associates at Swidler Berlin Shereff Friedman, Dickstein Shapiro Morin & Oshinksy, and Arnold & Porter. Two-thirds of the associates at Swidler received bonuses last month ranging from $2,500 to $30,000, based primarily on work performance and, to a lesser extent, hours billed. Managing partner Barry Direnfeld says that because the firm had a “better than expected” year, holiday bonuses were awarded to staff as well. Likewise, it was “a very good year” at Dickstein, says deputy managing partner Michael Nannes � almost all associates received a prosperity bonus ranging from $1,000 to $10,000. Staff got bonuses as well. In addition, about 15 percent of Dickstein associates were awarded a “traditional” merit bonus ranging from $8,000 to $23,000, while 40 percent to 50 percent got bonuses of $5,000 to $75,000, based on billable hours, firm building, and pro bono work. At Arnold & Porter, all associates received a bonus of $4,000 to $12,000 at the end of 2003, says managing partner James Sandman. In addition, the firm awarded bonuses ranging from $25,000 to $55,000 to associates billing more than 2,400 hours. � Christine Hines VANISHING BREED Another intellectual property boutique vanished last week when Reed Smith acquired Northern Virginia’s eight-lawyer Shanks & Herbert. Joining the firm’s D.C. office are two partners, five associates, and one of counsel. Although name partners Mark Shanks and Toni-Junell Herbert say they had been approached for a merger by other firms, they first considered dissolving their firm when they spoke with people at 1,000-lawyer Reed Smith. “It is a very nice atmosphere, [and] they have a fantastic client base already,” says Shanks. The duo also acknowledges that general practice firms were tough competition for IP boutiques. “They tend to be more efficient. For us, that was a big selling point,” Herbert says. � Christine Hines MOVING ON Defense Department Deputy General Counsel Paul “Whit” Cobb Jr. stepped down last week to take a job as the No. 2 lawyer for BAE Systems North America, a major DOD contractor. While at the Pentagon, the 39-year-old Cobb oversaw planning for military commissions to try accused foreign terrorists and major litigation involving the Pentagon. His departure comes as DOD officials make final preparations to start military commission proceedings and as the first cases challenging the administration’s detention policies in the war on terrorism reach the Supreme Court. “Those factors certainly make it a difficult time personally to leave . . . but this is a fantastic opportunity,” Cobb says. BAE Systems, formerly known as British Aerospace, is the sixth-largest defense contractor to the U.S. government. Sheila Cheston, a former Wilmer, Cutler & Pickering partner, serves as the company’s general counsel for North America. Cobb, who assumes his post Jan. 26, will be prohibited from working on matters he directly handled for the Pentagon. On Dec. 30, DOD officials named four civilians to serve on review panels for military commissions: Griffin Bell, William Coleman, Edward Biester, and Frank Williams. Retired Gen. John Altenburg Jr. will serve as the primary administrator for the commissions. Meanwhile, DOD General Counsel William “Jim” Haynes II may also be on the way out. Haynes awaits a Senate vote on his nomination to the U.S. Court of Appeals for the 4th Circuit. � Vanessa Blum AFTER MANATT Greenberg Traurig says it has landed four international trade lawyers � partners Donald Stein, Jeffrey Neeley, and Irwin Altschuler, and counsel David Amerine � as well as trade adviser Arturo Jessel from the D.C. office of Manatt, Phelps & Phillips. And with the new year, four other Manatt lawyers, led by former telecom practice head Robert Rini, broke off to form Rini Coran, a law and lobbying boutique for telecom, media, and technology companies, Rini says. Joining him are partners Stephen Coran and David O’Neil and associate Jonathan Allen. It’s a revival of the firm Rini and his group disbanded in September 2001 to build Manatt’s telecom practice. Los Angeles-based Manatt announced in July that it would shed its D.C. telecommunications and international trade practices as part of a restructuring effort, saying that they were not “related to core strategies.” For Manatt, the new year brings 12 new lawyers from Parcher Hayes & Snyder in New York, giving the firm 65 lawyers in the Big Apple. “They’re a really great addition for us and for our clients,” says Manatt’s managing partner, Paul Irving. Parcher has a list of clients that includes celebrities Bruce Springsteen and Robin Williams, and media conglomerate Time Warner Inc. � Lily Henning and Christine Hines FRIENDLY FACES Just a month into his tenure as deputy attorney general at the Department of Justice, James Comey Jr. is stocking his office with known and trusted former colleagues from his prosecutorial career. Comey ran the Richmond, Va., division of the U.S. Attorney’s Office for the Eastern District of Virginia before taking the helm of the Southern District of New York in 2002. Joining Comey as advisers on Jan. 5 are John Davis and Robert Trono of the Eastern District’s Richmond office. Davis is best known for prosecuting American Taliban John Walker Lindh. And Trono has been in the news recently for prosecuting the participants in a Richmond city council bribery scheme. And, of course, Comey last week turned to another trusted former colleague to handle one of the most politically sensitive matters facing Justice. He tapped Patrick Fitzgerald, the U.S. attorney for the Northern District of Illinois, to lead the investigation into who leaked the name of an undercover CIA operative to the press. Comey and Fitzgerald launched their prosecutorial careers together as AUSAs in the Southern District of New York in the late 1980s under then-U.S. Attorney Rudolph Giuliani and have remained close friends. � Siobhan Roth LUMP OF COAL FOR AOL On Christmas Eve, Chief Judge Claude Hilton of U.S. District Court for the Eastern District of Virginia delivered a memorandum opinion that may trim the sails on a raft of anti-spamming suits filed in April by America Online Inc., the Dulles, Va.-based arm of Time Warner. In addition to targeting companies and individuals who send spam, AOL named as defendants people and companies that helped the spammers do their business. In this case, AOL claimed that Connor Miller Software Inc., a Florida-based computer service company, and its two principals aided and abetted an alleged Ocoee, Fla.-based spam operation by setting up and maintaining the outfit’s computer network. Hilton wrote that Connor Miller Software had no connection to Virginia and, thus, the Alexandria-based court lacked jurisdiction. (However, Hilton did allow AOL’s suit against the actual spammers to proceed.) Seth Berenzweig, a partner in Arlington’s Albo & Oblong who argued Connor Miller’s case, says the decision is important for technology companies because it addresses the ongoing issue of venue in Internet-related matters. AOL, for its part, “is prepared to amend its complaint in Virginia to include additional details showing these defendants are subject to suit in Virginia,” AOL spokesman Nicholas Graham said in a statement. Jon Praed, of Arlington’s Internet Law Group, is handling the case for AOL. � Siobhan Roth ANGLING FOR VOTES A long-running New York legal saga is nearing its final chapter before the U.S. Supreme Court. Political gadfly and frequent electoral candidate John O’Hara, a former lawyer from Brooklyn, is fighting his 1996 conviction on seven counts of illegal voting � a charge last levied successfully against suffragette Susan B. Anthony in 1876, he says. O’Hara’s offense: using his girlfriend’s address as his residence for voting purposes. He claims he was prosecuted because of his frequent criticism of the local district attorney. O’Hara’s case, O’Hara v. New York, No. 03-669, is on the Court’s agenda for its Jan. 9 conference. He knows getting the Court to agree to hear it is a long shot, but he hopes the uniqueness of his plight will get the Court’s attention: “I am the first American to be convicted for registering to vote.” � Tony Mauro

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