by Lee Gesmer | Apr 8, 2009 | What Were They Thinking
It’s not often that the U.S. Department of Justice prosecutes a sitting U.S. Senator, obtains a conviction at trial, and then concludes it has no choice but to voluntarily dismiss the charges and let the former defendant walk free, totally vindicated. But that’s what happened in United States v. Ted Stevens, the government’s case against the longest-serving Republican in the Senate’s history. If this has ever happened before in the United States, I’m unaware of it.
To quote from today’s New York Times:
Judge Emmet G. Sullivan dismissed the charges against Mr. Stevens, which was expected given the way the case has disintegrated since the conviction in October. But the judge went well beyond that step, declaring that what the prosecutors did was the worst “mishandling or misconduct that I’ve seen in my 25 years.”
Judge Sullivan spoke disdainfully of the prosecutors’ repeated assertions that any mistakes during the trial were inadvertent and made in good faith. He said he had witnessed “shocking and serious” violations of the principle that prosecutors are obligated to turn over all relevant material to the defense.
The judge appointed the attorney Henry Schuelke as special prosecutor to investigate possible criminal contempt charges against the prosecution team.
How could this happen? The article suggests the lawyers may have been grossly overworked, rushed to trial by an aggressive defense (damn good move by the defense, if true), or simply outlawyered by Williams & Connolly, a notoriously tough white collar criminal defense firm and the D.C. “go to” firm for cases like this. Or, of course, the attorneys could have simply gotten carried away and decided to play outside the rules of criminal procedure and legal ethics. In the heat of a high-stakes criminal case, anything can happen.
But with a special prosecutor appointed by a federal judge to investigate the Stevens prosecutors, we may never know exactly how this all unfolded. There will be theories, of course, perhaps even a book or two – John Grisham may be turning this over in his mind right now, trying to figure out if there’s a novel there somewhere (sure there is John!).
The lawyers under investigation will “lawyer up” and perhaps take the Fifth (which is sure to cost them their jobs). Some may cut deals and testify against others, or some may be granted immunity; how could they afford the defense costs if they don’t? In other words, the special prosecutor will use the same tools against them that they were used to using against their targets.
In addition to the risk of criminal contempt, there are serious ethical issues that may have to be investigated by the D.C. and Alaska Bars (some of the lawyers were based in Alaska).
In a very real sense you have to feel sorry for these prosecutors – no one goes to law school and becomes a career prosecutor expecting to get caught up in something like this. And more than almost anyone else, they had to have known the risks they were taking, and the consequences if they were discovered. They took on a very big fish, and that fish was backed by an enormously powerful and resourceful law firm that spared nothing in the defense of its client. And so, the hunters become the hunted.
by Lee Gesmer | Apr 7, 2009 | Copyright
As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to Tenenbaum who downloaded seven songs for personal use, not profit. Over $1 million in damages ($150,000 x 7) seems a bit much for such a violation, and Nesson argues that punitive damages of this magnitiude are unconstitutional.
Nesson is courteously interviewed by Professor Doug Lichtman on the Intellectual Property Colloquium podcast here.
Apart from the legal issue raised by Professor Nesson, this case has a great deal of humor in it, not the least of which is that Nesson and company are defending Joel Tenenbaum. This is kind of like picking on a little kid on the playground, who then shows up with The Hulk, who just happens to be his big brother and refuses to go away until he’s fought the bully to the death. Oh, and Nesson’s team is “immortal” for all practical purposes – I suspect there’s nothing that Nesson would like more than to take the constitutional challenge to the Court of Appeals and then the Supreme Court. I doubt that the RIAA ever expected this, but they can’t exactly back down at this point. I hope to write about this case it in more detail in a future post, and highlight some of the bizarre turns the case has taken with Nesson guiding Tenenbaum’s defense.
A great blog that is following this case in more detail than I could ever have thought possible is Ben Sheffner’s Copyrights and Campaigns.
by Lee Gesmer | Apr 6, 2009 | Antitrust
A new administration often means a new approach to federal agency enforcement of the antitrust laws. And, a shift from Republican to Democrat often means more aggressive enforcement by the DOJ and FTC. The business and legal communities want to know, what can we expect?
James W. Lowe and Thomas Mueller of Wilmer Hale attempt to answer some of these questions in their article Whither US Antitrust?, published in the March 2009 issue of the Global Competition Review.
by Lee Gesmer | Apr 6, 2009 | Trademark
A few days ago I discussed a decision by Massachusetts U.S. District Court Judge Nancy Gertner holding that purchase of a trademarked keyword to trigger a sponsored link on a search engine constitutes a “use in commerce” of the trademark under the Lanham Act (the Federal Trademark statute). (Earlier post here). In that post I mentioned that among cases addressing this issues, only the Second Circuit had held otherwise.
Now the Second Circuit seems to have changed its position on this issue. In Rescuecom v. Google, issued on April 3, 2009, the court reversed a motion to dismiss by the trial court, holding that Rescuecom properly alleged that Google’s keyword ad practices constituted a “use in commerce” under the Lanham Act.
In a somewhat unusual step, the court attached to its opinion an Appendix entitled “On the Meaning of “Use in Commerce” in Sections 32 and 43 of the Lanham Act.” The Appendix, which is described as dicta, discusses at some length the statutory history of the “use in commerce” phrase in the Lanham Act.
This decision appears to be a game-changer for Google, and will require it to modify its policies on selling key word search ads to competitors.
by Lee Gesmer | Apr 6, 2009 | Patents
Judge Marylin Hall Patel, a federal district judge in the North District of California (San Francisco/Silicon Valley) since 1980 and Chief Judge in the District from 1997 – 2004, is a well known federal judge when it comes to intellectual property matters. For example, Judge Patel decided the Grokster case at the district court level, which eventually was affirmed by the Supreme Court, and she has decided many patent cases. When she speaks on IP matters, one would do well to listen
Therefore, her March 26, 2009 decision in Cybersource v. Retail Decisions is of no small significance. In this case Judge Patel applied In re Bilski to invalidate two business method patent claims in U.S. Patent No. 6,029,154, titled “Method and system for detecting fraud in a credit card transaction over the Internet.” The CAFC’s decision in Bilski requires that a process either be tied to a machine or apparatus or involve a transformation, and Judge Patel held that the ‘154 patent failed this “machine-or-transformation” test.
Judge Patel held that a credit card number is not a physical object, thereby failing the “transformation” test, and she rejected the argument that because the claims were tied to the Internet they satisfied the “machine” test, since “one cannot touch the Internet.”
At the conclusion of her opinion she stated:
In analyzing Bilski, one is led to ponder whether the end has arrived for business method patents, whose numbers swelled following the decision in State Street. Without expressly overruling State Street, the Bilski majority struck down its underpinnings. This caused one dissenter, Judge Newman, to write that State Street “is left hanging,” while another dissenter, Judge Meyer, registered “an emphatic ‘yes’” to rejecting State Street, and a third, Judge Rader, queried whether the court was willing to decide that the entire field of business patents is “undeserving of incentives for invention.” 545 F.3d at 995, 998, 1014. Although the majority declined say so explicitly, Bilski’s holding suggests a perilous future for most method patents.
The observations of several Justices suggest that this issue may be expected to receive serious consideration by the Supreme Court . . . The closing bell may be ringing for business method patents, and their patentees may find they have become bagholders.
