“The government waited over a decade to file suit against Lance Armstrong for one reason and one reason only: It got everything it bargained for from Armstrong and his cycling team.”
So began Armstrong’s effort to convince a judge in Washington to dismiss the False Claims Act lawsuit the U.S. Justice Department joined earlier this year.
Armstrong’s attorneys, including Patton Boggs litigation partner Robert Luskin in Washington and Elliot Peters of Keker & Van Nest in San Francisco, filed motions to dismiss on July 23, arguing the government allegations — that Armstrong's drug use violated a U.S. Postal Service sponsorship contract — are time-barred.
The defense lawyers contend the government did nothing to investigate media reports about the use of performance-enhancing drugs in cycling. "The government wanted a winner and all the publicity, exposure, and acclaim that goes along with being his sponsor. It got exactly what it bargained for," Luskin and Peters wrote. "That was more than a decade ago. It is now far too late for the government to revisit its choice to reap the benefits of sponsorship rather than investigate allegations of doping."
In February, U.S. Attorney Ronald Machen Jr. said the Postal Service "has now seen its sponsorship unfairly associated with what has been described as 'the most sophisticated, professionalized and successful doping program that sport has ever seen.' " U.S. District Judge Robert Wilkins will hear the dispute on November 18. — Mike Scarcella
THE SEC BEHIND HIM, KHUZAMI JOINS KIRKLAND
When Robert Khuzami started as the enforcement director for the U.S. Securities and Exchange Commission in 2009, he faced the difficult task of restoring the reputation of an agency that failed to detect the Bernie Madoff Ponzi scheme. During Khuzami's almost four-year tenure, he ­reorganized elements of the division and had record case filings in 2011 and 2012.
"I think the division responded in a way that rivals anything the private sector would do when they are confronted with a crisis," Khuzami said. "It was a difficult time post-Madoff and financial crisis, but the division really excelled during that four year period."
Now Khuzami, who left the agency earlier this year, will start a new chapter as a partner in Kirkland & Ellis' government, regulatory and internal-investigations practice. Khuzami earlier spent seven years as a top in-house lawyer at Deutsche Bank A.G. At Kirkland, he said, he wants to "help build and grow what I hope to be one of the premiere enforcement practices." — Matthew Huisman
The case has dragged on for a decade — and last week's ruling in the U.S. Court of Appeals for the D.C. Circuit isn't likely to end the litigation. The court ruled that Americans born in Jerusalem cannot identify "Israel" as the country of birth on a passport. A three-judge panel — Karen LeCraft Henderson, Judith Rogers and David Tatel — struck down the federal law that allowed that ­designation. The court, ruling against Washington attorney Nathan Lewin's clients, the parents of a Jerusalem-born boy, said that only the president has the power to recognize foreign sovereigns. Lewin and members of Congress, represented by Gibson, Dunn & Crutcher partner Theodore Olson, argued that the law in question did nothing more than regulate passports. The Justice Department's Dana Kaersvang argued for the U.S. State Department, which has refused to enforce the law amid concern about causing strife in the Middle East. "[W]e are not equipped to second-guess the Executive regarding the foreign policy consequences" of the law, Henderson wrote. — Mike Scarcella
Senator Chuck Grassley (R-Iowa) took an unusual route to back up his claim that the U.S. Court of Appeals for the D.C. Circuit needs no more judges. Grassley, the main critic of President Barack Obama's push to fill three vacancies on the court, sent a questionnaire about caseloads to each of the circuit's eight sitting judges and six senior judges. He included a blank envelope. "Kindly refrain from signing or otherwise indicating authorship in order to guarantee anonymity," Grassley wrote. At least two judges responded, said Grassley, the ranking Republican member of the Senate Judiciary Committee. Both of the responses said the circuit did not need any more judges; Grassley revealed no information about the authors. He read from two responses during the July 24 confirmation hearing of Georgetown University Law Center professor Cornelia Pillard. "The judges themselves confirm everything I've been saying about the workload of this court," Grassley said. One judge reportedly said: "If any more judges were added now, there wouldn't be enough work to go around." — Todd Ruger
Nixon Peabody has named a Washington partner as the head of its tax-credit finance and syndication practice. Gregory Doran takes over the role previously held by D.C. managing partner Jeffrey Lesk. Before he joined Nixon Peabody, Doran was an attorney in the IRS Office of Chief Counsel. The majority of the firm's tax practice attorneys reside in the Washington office. Attorneys in the tax controversy and litigation practice in New York work on financing and developing affordable housing, historic preservation projects and real estate in low-income communities. Washington-area residents will recognize the firm's tax-related work on The Yards development along the Southeast waterfront. In that project, Nixon Peabody attorneys represented the development, using the federal New Markets Tax Credit and Low-Income Housing Tax Credit programs to help out. "Now the cranes are moving down there," Doran said. Doran also represented the Educare project, which serves as an early childhood development program in the District's Ward 7. Doran said the firm's tax practice doesn't look like it's slowing down. "While we have seen the economy go one direction, we have seen resurgence in the projects that are getting developed here" in Washington, he said. — Matthew Huisman
A Williams & Connolly team convinced a three-judge panel of the U.S. Court of Appeals for the First Circuit to grant a death-row prisoner a new penalty hearing amid allegations of jury dishonesty. William McDaniels, of counsel, argued for Gary Lee Sampson, who was sentenced to death in 2003 — the first federal capital sentence in Massachusetts. Partner Jennifer Wicht and associate Cadence Mertz were also on the defense. "Few accouterments of our criminal justice system are either more fundamental or more precious than the accused's right to an impartial jury," Senior Judge Bruce Selya wrote last week in a 42-page opinion. "That right is threatened when — as in this case — juror dishonesty occurs during the voir dire process yet is not discovered until well after final judgment has entered on the jury's verdict." U.S. Attorney Carmen Ortiz said prosecutors were reviewing their options. "We remain committed, however, to seeing that justice is done in this case," Ortiz said. — Mike Scarcella
A court opinion last week delivered the latest blow to states that still use the death penalty. On July 23, a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said the U.S. Food and Drug Administration was wrong to allow states to import a "misbranded and unapproved new drug" used in lethal-injection cocktails without examining it first. The case was brought by a group of death row inmates in Arizona, California and Tennessee. Senior Judge Douglas Ginsburg, writing for the court, found that the agency "acted in derogation" of its duty to examine foreign shipments of a drug prepared by a company not registered with the FDA. The drug, sodium thiopental, was used as part of a three-drug protocol that eventually causes death. The FDA declined to take a position on the drug's use, but allowed the imports without review in deference to law enforcement agencies. Eric Shumsky of Orrick, Herrington & Sutcliffe, who argued for the death row inmates, said that given the fact that the drug imports violated federal law, "this always was just a case about whether FDA was going to have to follow the law." — Zoe Tillman
The U.S. Chamber of Commerce pumped about $19.1 million into its advocacy efforts during the past three months, boosting its expenses by roughly $2.3 million from the previous quarter, according to second-quarter lobbying reports filed with Congress as late as last week. From April 1 to June 30, the world's largest business federation deployed more than 100 lobbyists to help it and its Center for Capital Markets Competitiveness, Institute for Legal Reform and Global Intellectual Property Center. Chamber spokeswoman Blair Latoff Holmes said immigration was a leading issue. "The Chamber's lobbying activity reflects that immigration reform is a top priority, as we continue to educate members of Congress on the importance of reform," she said. — Andrew Ramonas