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FTC NOMINEE LOCKED IN SENATE LIMBO It’s not personal. If there is a message for President George W. Bush’s nominee to head the Federal Trade Commission from the senator blocking her confirmation, that could be it. Sen. Ron Wyden (D-Ore.) has said his hold on Deborah Majoras‘ nomination is over concerns about whether the FTC is doing enough to ensure competition in the oil industry and protect consumers from high gas prices, which have reached $3 per gallon in his home state this year. The hold could prevent the Senate from taking a final vote to confirm Majoras. But members of the antitrust bar following Majoras’ Capitol Hill travails say the crusade could have another consequence: a dangerous leadership vacuum at the agency. With outgoing FTC Chair Timothy Muris already set to start teaching again in mid-August at George Mason University School of Law and Congress in recess for all but three weeks until the beginning of September, time is running out, says one former high-level FTC official. What’s more, Senate Republicans have tied Majoras’ confirmation to that of Democratic commissioner nominee Jonathan Leibowitz, who would replace Mozelle Thompson, a Democrat whose term expired in 2003. GOP Commissioner Orson Swindle’s term is up in September. That means if Muris and those two commissioners exit their posts, it would leave the five-member commission with just two voting members. The panel can still make decisions with just two votes, but would be severely undermanned, says Janet McDavid, a Hogan & Hartson antitrust partner: “It is important that the commission have a full complement of commissioners to resolve the issues before it.” Majoras, 40, a Jones Day partner in the District and the former deputy assistant attorney general who helped to broker the controversial Microsoft antitrust settlement, said she could not comment. She could be appointed during the congressional recess, but observers say that is unlikely to happen this summer. For Wyden, who is up for re-election in November, this is just one chapter in a long-standing battle with the FTC over gasoline. He has said that until Majoras provides a plan to address rising prices, his hold on her nomination will remain. Sen. Barbara Boxer (D-Calif.), a fellow member of the Senate Commerce Committee, has had a similar beef with the FTC, but hasn’t said yet whether she will place a hold on the nomination. At Majoras’ confirmation hearing, Boxer said it was a “bombshell” to discover that while at Jones Day, Majoras had represented the oil giant ChevronTexaco Corp., whose general counsel, Charles James, was once her boss at DOJ’s Antitrust Division. — Lily Henning CONFLICTED San Francisco-based Orrick, Herrington & Sutcliffe and D.C.’s Swidler Berlin Shereff Friedman have called off merger discussions, according to senior officials at both firms. Two sources close to the discussions say client conflicts were discovered during the due diligence process. They say both firms are disappointed by the outcome. A merger of the two would have given Swidler, with nearly 260 lawyers and offices in the District and New York, a national presence. Orrick, whose chairman, Ralph Baxter Jr., last year told Legal Times‘ San Francisco affiliate The Recorder he wanted to make Orrick “one of the greatest law firms in the world,” has about 640 lawyers and 14 offices firmwide, but only a 50-lawyer outpost in the District. Swidler isn’t the first firm Orrick has mulled marrying: In 2003, the firm tried to merge with Palo Alto, Calif.’s Cooley Godward and technology boutique the Venture Law Group. The firm also explored a merger with London’s Bird & Bird. While Orrick has gained about 100 lawyers since 2000, Swidler has lost more than 50 during the same period. Baxter and Swidler managing partner Barry Direnfeld did not return calls for comment. — Marie Beaudette JOB OPENING The nine-member D.C. Court of Appeals is about to have its first vacancy since May 1999. Judge John Steadman, who has served on the court since 1985, will reach the court’s mandatory retirement age when he turns 74 on Aug. 8. The D.C. Judicial Nomination Commission is soliciting applications for the judgeship, with a deadline of July 23. By early October, the commission will forward a list of three names to President George W. Bush, who will select one. The judgeship requires Senate confirmation. Although he will be replaced as an active judge, Steadman is expected to continue hearing cases as a senior judge of the court. — Jonathan Groner JAILED The U.S. Attorney’s Office recommended no jail time. D.C.’s Pretrial Services Agency called for community service. But last week, D.C. Superior Court Judge Brian Holeman sent Elena Sassower to prison for six months — the maximum penalty for disrupting Congress. Sassower, a judicial ethics advocate who was arrested last year after requesting to testify at a Senate Judiciary Committee hearing, has filed an emergency appeal requesting a stay of her sentence. The June 28 sentencing surprised many in the courtroom. Holeman, one of the court’s newest judges, ordered that Sassower be taken into custody immediately. Mark Goldstone, Sassower’s attorney adviser and a veteran protest lawyer, calls the sentence unfair. Holeman initially sentenced Sassower to 92 days and suspended that term, placing her on two years’ probation. But as Holeman ticked off a long list of probation requirements, including staying away from all federal buildings on Capitol Hill and cutting off nearly all communication with various senators and staffers, Sassower became visibly agitated. Sassower rejected probation after Holeman said she would have to write letters of apology to certain senators and a federal judge, whose nomination Sassower opposed. — Tom Schoenberg LITERARY LICENSE Former President Bill Clinton’s My Life is setting all sorts of sales records, but one federal judge is registering a dissent. Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit issued a statement last week objecting to a brief reference to him in Clinton’s book. When mentioning Sentelle’s appointment in 1994 to head the special court that appointed independent counsel, Clinton called the judge “an ultra-conservative protege of Senator Jesse Helms.” Clinton also wrote that Sentelle had “decried the influence of ‘leftist heretics’ who wanted America to become a ‘collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and socially permissive state.’ ” Sentelle says that although he wrote those words in a book review, they didn’t express his personal views on “ leftist heretics” but rather those of Robert Bork, whose book Sentelle was reviewing in the Harvard Journal of Law and Public Policy. “I had decried no such thing. . . . Like any book reviewer, I was describing the views of the book I was reviewing,” Sentelle says. A spokesman for Clinton’s publisher was unavailable for comment. — Jonathan Groner SENTENCING SCRAMBLE Criminal justice officials nationwide are trying to understand the impact that the June 24 U.S. Supreme Court decision in Blakely v. Washington will have on their sentencing programs. Blakely held that any fact that increases a sentence — even an aggravating factor within a statutory maximum — must be proved to a jury. In the District, two felons had their sentences reduced last week when federal judges agreed time added to their sentences was based on factors not considered by a jury. Channing Phillips, principal assistant U.S. attorney in the District, says his office is expecting more challenges and is awaiting direction from Main Justice on how to react. Justice spokesman John Nowacki says, “The department is currently reviewing the decision and its ramifications.” Blakely was handed down days after D.C. Superior Court implemented its own sentencing guidelines. D.C. officials, however, say the ruling should not have much effect on them, because its guidelines are voluntary and give judges leeway in sentencing. — Tom Schoenberg CHART ATTACK The nation’s 100 highest-grossing law firms saw profits per partner increase nearly 10 percent in 2003, according to the annual ranking of the nation’s top-grossing law firms by Legal Times‘ sister publication The American Lawyer. The magazine found that while equity partners at the biggest firms brought home giant paychecks in 2003, non-equity partnership classes at the firms have increased in tandem with jumps in profits per partner. Last year, the number of non-equity partners jumped 11 percent, while the equity partner ranks increased only 4 percent. D.C. firms fared well last year, according to the survey. Eleven firms based in the District made the list, but only one, Akin Gump Strauss Hauer & Feld, with gross revenue of $585 million firmwide, made the top 20. Both Dickstein Shapiro Morin & Oshinsky and Howrey Simon Arnold & White shot up the list of 100. Dickstein, which brought in profits per partner of $1.935 million in 2003, went from 76 to 66 on the list. Howrey, whose profits per partner passed the $1 million mark in 2003, went from 58 to 44. Shaw Pittman dropped from 87 to 99. — Marie Beaudette PARIS MATCH Piper Rudnick is going continental. The firm announced last week it gained a Paris contingent when 16 lawyers from Hogan & Hartson abandoned its office in the French capital. It’s Piper’s first overseas outpost. Partners joining Piper are led by Alan Cariddi and include Bruce Mee, Fabrice Rue, Christine Bougis, Bijan Eghbal, and Carol Umhoefer. Piper co-chairman Francis Burch Jr. says the firm is recruiting more lawyers in Paris and will send some of its U.S. attorneys there as well. It also plans to open a London office sometime in the next year. The move leaves Hogan with one partner in its nearly 10-year-old Paris office. Hogan chairman J. Warren Gorrell says the firm and its Paris lawyers had “different views on the direction and structure” of the office. — Lily Henning TOSSED A federal appeals court June 23 threw out a class action seeking overtime pay for more than 9,000 Justice Department attorneys because the lawyers didn’t get the proper written approval before putting in extra hours. The three-judge Federal Circuit U.S. Court of Appeals panel was unanimous in its decision. The largely anonymous class sought $500 million in overtime pay for work performed between 1992 and 1999, when Congress passed a law barring overtime pay. Robert Van Kirk of D.C.’s Williams & Connolly, an attorney for the plaintiffs, says he plans to seek the full court’s reconsideration. — Jeff Chorney, The Recorder

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