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GLOBAL WARMING TURF TIFF CAN BE SEEN FROM YOSEMITE YOSEMITE — Gov. Arnold Schwarzenegger’s point woman on global warming told a gathering of environmental lawyers on Saturday that Attorney General Jerry Brown’s intense focus on climate change “is perhaps getting too far ahead of the process.” Mary Nichols, the governor’s newly appointed chairwoman of the Air Resources Board, didn’t actually attend the Environmental Law Conference at Yosemite, even though she was scheduled to give Saturday’s keynote speech. Organizers said a canceled flight ended her plans to travel to the event. Instead, Paula Daniels, a commissioner on the Los Angeles Board of Public Works, read a copy of Nichols’ prepared remarks. The Air Resources Board has been charged with developing new rules to comply with AB 32, the sweeping 2006 law that will require California to cut its greenhouse gas emissions to 1990 levels by 2020. While the board, appointed by the governor, has been hosting a slew of hearings to come up with those new rules, Brown has grabbed headlines by critiquing � and, in one case, suing over � local governments’ land-use plans and their potential contributions to global warming. Nichols, who served on the ARB during Brown’s gubernatorial administration, said linking land-use decisions to global warming is “a necessary and inevitable challenge” that “must be driven by regulation and, in this case, by guidelines” that have not been written yet. “That’s where Jerry Brown, [my] old boss, despite his best intentions, has perhaps not been as helpful as he might have been,” Nichols wrote in her speech. “He has set the tone and highlighted the necessity to address this issue. But he is perhaps getting too far ahead of the process.” Brown did not attend the conference, hosted by the environmental section of the State Bar. But Richard Frank, a top official in former Attorney General Bill Lockyer’s administration, defended the office’s recent environmental litigation as “well motivated” and “well thought out.” “Litigation … is not in and of itself a policy statement,” said Frank, who now directs the Center for Environmental Law & Policy at Boalt Hall. But the AG’s cases, he said, “have really advanced the law.” Nichols’ criticisms reflect the ongoing turf squabble between the governor and attorney general over global warming politics. State Senate Republicans held up the budget for months this summer until Democrats signed on to a bill that Republicans contend will stop Brown from filing global warming lawsuits over state bond projects. Schwarzenegger then signed a budget that sliced more than $1 million from the attorney general’s office and urged lawmakers to shift some of Brown’s environmental litigation authority to executive branch agencies. Brown has continued to focus on climate change, however, and most recently petitioned federal regulators to curb the emissions of cargo ships entering California’s ports.

Cheryl Miller

SANCTIONED LAWYER GETS VINDICATION Jean-Marc Zimmerman is going out of his way to talk about a recent court victory. A year after the New Jersey patent attorney was sanctioned for filing cookie-cutter infringement complaints � and ordered to spread word of that punishment � he’s now making sure the fact that the order was vacated last month also makes the rounds. When Western District of Washington Judge Marsha Pechman sanctioned Zimmerman and his firm, she awarded their opponent almost $142,000 in fees and costs. She also ordered Zimmerman and his client, Eon-Net, to notify other targets of its infringement claims about her ruling. On Sept. 27, the Federal Circuit U.S. Court of Appeals vacated the sanctions (.pdf), and Zimmerman made sure The Recorder � which had written about Pechman’s order � knew the score. “I felt it important to get it out there � that there was no basis for the sanctions,” Zimmerman said last week. “There was support for the plaintiff’s position.” His firm, Zimmerman, Levi & Korsinsky, had sued Flagstar Bancorp Inc. on behalf of Eon-Net. Flagstar was represented by Quinn Emanuel Urquhart Oliver & Hedges. Pechman concluded Zimmerman had, among other things, failed to conduct a “reasonable pre-filing inquiry.” She wrote (.pdf) that she was concerned that Eon-Net’s filings against various companies � near-identical complaints that sought quick, relatively inexpensive settlements � presented “indicia of extortion.” Federal Circuit Chief Judge Paul Michel, Judge Alvin Schall, and U.S. District Judge Elaine Bucklo, who sat by designation, found Pechman’s assessment of the evidence “clearly erroneous.” “There is really no dispute that Eon-Net’s counsel did examine portions of Flagstar’s Web site and, based on his experience, concluded that it worked in a manner that infringed [the patent],” their unpublished opinion reads. The circuit sent the issue back to Pechman to reconsider. (Eon-Net had asked to have the case remanded to someone else.) The appellate court also said that, while filing nearly identical complaints against companies then offering to settle on the cheap might indicate an improper purpose, there could be a more innocent explanation. “A company may hold a patent on a widely used device or process that many different types of companies use,” the appellate opinion said. Los Angeles-based Quinn Emanuel partner Jon Steiger reacted to the ruling by saying that “we are confident that with further proceedings the judge is going to come again to the same conclusion.” The Federal Circuit panel also vacated Pechman’s summary judgment ruling in favor of Flagstar, but affirmed a denial of sanctions against Flagstar.

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