Lawyers are scrambling following the U.S. Supreme Court’s decision on October 15 to grant review in six separate challenges to the U.S. Environmental Protection Agency’s greenhouse gas regulations. Here’s the catch: The court consolidated the cases and allotted only one hour for argument, even though the various parties have views that are “pretty close to inconsistent” with each other, said one key lawyer in the case.
“It’s a dilemma, but an exciting dilemma to have,” said Shannon Goessling, executive director and chief legal counsel for the Southeastern Legal Foundation, one of the plaintiffs. The Supreme Court followed up with an email later in the week ordering the parties to consolidate briefing and “avoid repetitive arguments.”
Lawyers will focus on how to meet that request before they jostle over who will argue the case in February. “It’s going to be horrible. The egos involved!” said another lawyer who’s involved in the dispute. Thirty attorneys participated in the briefing before the high court.
The early betting is that the argument prize will go to Peter Keisler of Sidley Austin, who argued part of the case before the U.S. Court of Appeals for the D.C. Circuit last year. The former Anthony Kennedy clerk is “certainly the most prominent of the tangle” of lawyers for the parties, said another lawyer in the case. — Tony Mauro
COOLEY, DOW LOHNES OFFICES TO MERGE
For Dow Lohnes, the merger with Cooley’s Washington office, announced last week, marked the end of a yearslong search for a partner. Dow Lohnes, founded in 1918, was struggling to compete. The firm wasn’t a boutique, and it wasn’t large enough to capture work outside of its focus area.
“We might be there for a regulatory matter, but we were losing out in lots of other significant areas, whether it was corporate or litigation,” Dow Lohnes managing partner John Byrnes said in an interview after Cooley announced the firm would hire 54 lawyers from Dow Lohnes.
The merger will transform the Palo Alto, Calif.-based Cooley into one of the 35 largest firms by headcount — now at 130 lawyers — in the Washington market.
Many Dow Lohnes partners have remained together for years, Byrnes said. “We concluded early on that we would be stronger as a group rather than separately,” he said.
Cooley, led by Ryan Naftulin in Washington, provided a national presence — and the firms meshed culturally. “We thought, we can really continue to practice law the way we like to,” Byrnes said. Dow Lohnes, he said, wants to be an “integral” part of Cooley — not just a “silo” of lawyers within a larger firm. The merger takes effect in January.
“We saw a strategic opportunity and we decided that what we had done for all these years was great, but the world was changing and we had to change with it,” Byrnes said. — Matthew Huisman
‘BOOM BOOM, OUT WENT THE LIGHTS AT THE CFTC’
The government shutdown didn’t stop the Commodity Futures Trading Commission from reaching a $100 million settlement last week with JPMorgan Chase Bank N.A. over massive trading losses by the so-called London Whale.
Commissioner Bart Chilton, a Democrat known for delivering speeches peppered with references to everything from Star Trek to Taoism to March Madness, offered his own spin on the deal, suggesting that the agency should be allowed to keep the penalty. The day before the shutdown began on October 1, he wrote, the agency returned $1 billion to the U.S. Treasury that it had collected from fines and settlements.
“The following day, boom boom, out went the lights at the CFTC,” wrote Chilton, who served as chief of staff and vice president for government relations at the National Farmers Union before joining the CFTC. “All it would take to keep the agency open and on the job is for Congress to approve one single sentence to allow the CFTC use of the types of funds we returned. We have at least $100 million sitting there right now, unused.”
Chilton praised agency enforcers for insisting on an admission of wrongdoing from JPMorgan. Without it, he said, he would not have supported the deal. Commissioner Scott O’Malia, a Republican, dissented from the settlement, writing that the CFTC “should have taken more time to investigate whether the company is liable for a more serious violation, namely price manipulation.” — Jenna Greene
REPORTER LOSES CHALLENGE
The U.S. Court of Appeals for the Fourth Circuit last week declined to revisit a July ruling forcing a New York Times reporter to testify in a CIA leak case in Alexandria, Va., federal district court. The court — voting 13-1 — ruled for the Justice Department’s effort to use the testimony of James Risen, represented by Cahill Gordon & Reindel partner Joel Kurtzberg. The lone dissent? Circuit Judge Roger Gregory, who was on the panel that sided with Risen this summer. “An independent press is as indispensable to liberty as is an independent judiciary,” Gregory wrote on October 15. “For public opinion to serve as a meaningful check on governmental power, the press must be free to report to the people the government’s use (or misuse) of that power.” — Mike Scarcella
THE L WORD
A campaign within the American League of Lobbyists to remove the often-maligned word “lobbyists” from its name is on the verge of succeeding. The League’s board has recommended to the group’s 1,300 ­members that they adopt the “Association of Government Relations Professionals.” League President Monte Ward last week said the group’s membership has changed since its founding in 1979. “The new name and brand is meant to fully recognize that today’s professional in this industry rarely, if ever, wears a single hat in their ­diversified portfolio of responsibilities,” Ward said. Howard Marlowe, a former president of the group, said changing the name is an effort to “avoid the stigma” of “lobbyist.” Ward said the group isn’t abandoning its defense of lobbyists. He said he wants the group to remain the “premier organization for the entire government-relations profession.” — Andrew Ramonas
Judges by day, rock ‘n rollers by night. The ­members of Deaf Dog and the Indictments — seven District of Columbia Superior Court judges and a psychologist — are going strong after eight years. Judge Russell Canan, aka “Top Dog,” said the band first got together for a judicial retreat talent show. The bandmates had so much fun they kept playing, performing around Washington and even taking their show on the road — never for money, said Canan, who plays rhythm guitar. On October 20, they’ll perform at a club in Bethesda, Md. The other band members are judges A. Frank Burgess Jr. (“Professor”), John Campbell (“Trashcan”), John McCabe (“Cartwheel”), and William Jackson (“Dawgg”); magistrate judges Joseph Beshouri (“Deputy Dog”) and William Nooter (“Blue Dog”); and psychologist Marc Feldman (“Hound Dog”). — Zoe Tillman
SHERROD SUIT MOVES ON
The late conservative blogger Andrew Breitbart’s wife, Susannah Breitbart, will take his place in a defamation case in Washington federal district court. Former U.S. Department of Agriculture official Shirley Sherrod accused Breitbart and others of posting online a “deceptively edited” version of a speech she gave and falsely implying that she discriminated against a white farmer. Breitbart died in March 2012 without a will, leaving uncertainty about how Sherrod’s claims would proceed. Breitbart’s widow, represented by Reed Smith partner Eric Dubelier, objected to the effort to bring her into the case.
On October 16, U.S. District Judge Richard Leon granted Sherrod’s request to substitute Breitbart’s widow as a defendant. Sherrod’s lawyer, Thomas Clare of Kirkland & Ellis, told Leon the plaintiffs didn’t “have the intention of requiring Susannah Breitbart to attend or devote time to this case.” Leon said he would hold Clare to his word. — Alex Zank