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Judge Annihilates Feds for Broadcom Prosecution

Federal Judge Cormac Carney of Santa Ana, Calif., has dismissed all charges related to fraud and stock option backdating in connection with the government’s prosecution of Henry Nicholas III, co-founder of Broadcom, and William Ruehle, the company’s former CFO. The decision is not only an enormous win for McDermott Will’s Gordon Greenberg, who represents Nicholas, and Skadden’s Richard Marmaro and Williams & Connolly’s Brendan Sullivan, who defended Ruehle, but also a major indictment of the prosecution, led by Assistant U.S. Attorney Andrew Stolper. http://www.reuters.com/article/idUSTRE5BE4WR20091215

And we don’t use the term ‘major indictment of the prosecution’ lightly. We have taken the liberty of posting a transcript of today’s hearing below (and apologize for the breaks in format, but read on … it’s a real testament not only to Judge Carney but also the fabulous U.S. system of justice, which is still the best in the world. Especially on days like this.)

As Judge Carney noted the Broadcom defenders are true titans of the bar in every sense. Marmaro has long been considered the top dog in California’s white collar bar. Quiet in person, he is devastating in court and commands virtually unanimous acclaim and regard. http://www.skadden.com/index.cfm?contentID=45&bioID=5923 and http://www.skadden.com/index.cfm?contentID=45&bioID=5923 We also need to note the work of Jack DiCanio, Marmaro’s longtime right hand. http://www.skadden.com/index.cfm?contentID=45&bioID=5921 They earlier handled the defense of Brocade’s former CEO Greg Reyes.

 Adjectives are nearly superfluous when it comes to Sullivan, who is DC’s top dog and a master of the courtroom. http://www.wc.com/attorney-BrendanSullivan.html and http://www.lawdragon.com/index.php/newdragon/lawyer_profile/447

Greenberg, meanwhile, is a tough and rapier-like former federal prosecutor who made headlines for convicting ZZZZ Best swindler Barry Minkow. http://articles.latimes.com/1989-03-25/local/me-602_1_barry-minkow He is also the creme of the white collar bar, and a great one-two punch with Marmaro. http://www.mwe.com/index.cfm/fuseaction/bios.detail/object_id/61ceb1e5-35b5-4ce1-a05e-f33b181008ab.cfm and http://www.lawdragon.com/index.php/newdragon/lawyer_profile/704
He had earlier allowed his client, Samueli, to plead guilty, a plea Carney rejected.

Also in court today were a cadre of lawyers who represented David Dull, Broadcom’s unindicted former general counsel. They were led by Quinn Emanuel’s Jim Asperberger (who was on the prosecution of Minkow with Greenberg in the day) http://www.quinnemanuel.com/attorneys/asperger-james-r.aspx
and O’Melveny’s Seth Aronson. http://omm.com/setharonson/

Earning Carney’s contempt were Stolper, Robb Adkins, Greg Staples and George Cardona, who went out of his way to note he had not been closely involved.

Here are a few of the money quotes from the transcript:

“I find that the government has intimidated and improperly influenced the three witnesses critiical to Mr. Ruehle’s defense, the cumulative effect of which distorted the truth finding process and compromised the integrity of the trial,” Carney said, referring to Dull, Nancy Tullos, the former VP of Human Resources, and Dr. Henry Samueli, the co-founder and former Chief Technical Officer. Among other things, the government met with Tullos 26 times and got her fired from her new job; and threatened to prosecute Dull if he testified consistently with his prior testimony to the SEC. 

The judge found that “The lead prosecutor somehow forgot that truth is never negotiable.”

Carney reserved special ire for the government’s treating of Samueli, whom he called a brilliant engineer and man of incredible integrity about whom there was no evidence to indicate he did anything wrong. Despite that, the governmment interrogated him 30 times, falsely stated and improperly leaked to the media he was not cooperating, improperly pressured Broadcom to terminate him, and crafted an unconscionable plea agreement under which he would plead guilty to a crime he did not commit and pay a ‘ridiculous’ $12 million to the government. The government’s treatment of Samueli was “shameful and contrary to American values of decency and justice,” he said.

The judge strongly cautioned the government against going forward with the remaining drug charge against Nicholas, and condemned the U.S. Attorneys for threatening to subpoena his 13-year old son to testify against his father. 

With respect to the stock option backdating claims, Carney said Apple and Microsoft were engaging in the same conduct as Broadcom.

“I have a solemn obligation to hold the government to the Constitution,” he said. “I’m dong nothing more and nothing less.”

We’re not going to give away the reaction of Greenberg, Sullivan and Marmaro, except to note that it involves not only a breathless lawyer and a 35th anniversary celebration of being admitted to the bar, but a reminder of the law’s majesty. 

 Carney, meanwhile, is a Bush appointee who is an Air Force veteran and a former UCLA football standout. http://www.fjc.gov/servlet/tGetInfo?jid=2994 and http://judgepedia.org/index.php/Cormac_Carney
Here is the transcript of today’s truly remarkable proceedings. Happy Holidays Team Broadcom. 

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

THE HON. CORMAC J. CARNEY, JUDGE PRESIDING

UNITED STATES OF AMERICA, )

)

PLAINTIFF, )

)

VS. ) NO. SACR 08-00139-CJC

WILLIAM J. RUEHLE, )

DEFENDANT. )

_________________________________)

REPORTER’S TRANSCRIPT OF PROCEEDINGS

SANTA ANA, CALIFORNIA

TUESDAY,DECEMBER 15, 2009

9:00

MARIA BEESLEY-DELLANEVE, CSR 9132

OFFICIAL FEDERAL REPORTER

RONALD REAGAN FEDERAL BUILDING

411 W. 4TH STREET, ROOM 1-053

SANTA ANA, CA 92701

(714) 564-9259

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1 APPEARANCES:

2 FOR THE PLAINTIFF: GEORGE S. CARDONA

UNITED STATES ATTORNEY

3 BY: ANDREW STOLPER

AND ROBB ADKINS,

4 GREG STAPLES,

ASSISTANT UNITED STATES ATTORNEY

5 411 W. 4TH STREET, 8TH FLOOR

SANTA ANA, CALIFORNIA 92701

6

7

8

9

10 FOR THE DEFENDANT RUEHLE: SKADDEN ARPS SLATE MEAGHER

BY: RICHARD MARMARO, ESQ.

11 AND JACK DICANIO, ESQ.

MATTHEW UMHOFER, ESQ.

12 300 SOUTH GRAND AVENUE

LOS ANGELES, CALIFORNIA 90071

13 (213)687-5535

14 FOR HENRY SAMUELI: MCDERMOTT WILL & EMERY

BY: GORDON GREENBERG, ESQ.

15 2049 CENTURY PARK EAST, SUITE 3800

LOS ANGELES, CALIFORNIA 90067-3218

16 (310) 551-9398

17

FOR HENRY NICHOLAS: WILLIAMS & CONNOLLY LLP

18 BY: BRENDAN SULLIVAN, ESQ.

725 TWELFTH STREET N.W.

19 WASHINGTON D.C. 20005

(202) 434-5460

20

21 FOR DAVID DULL: QUINN EMANUEL URQUHART OLVER & HEDGES

BY: JAMES ASPERGER, ESQ.

22 AND SETH ARONSON, ESQ.

865 S. FIGUEROA ST 10TH FL

23 LOS ANGELES, CALIFORNIA 90017

24

25

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1 SANTA ANA, CALIFORNIA; TUESDAY, DECEMBER 15, 2009

2 -OOO-

3 THE CLERK: ITEM NUMBER ONE, SACR 08-139-CJC. UNITED

4 STATES VERSUS WILLIAM J. RUEHLE.

5 COUNSEL, PLEASE STATE YOUR APPEARANCES FOR THE RECORD.

6 MR. ADKINS: GOOD MORNING, YOUR HONOR. ROBB ADKINS,

7 GEORGE CARDONA, ANDREW STOLPER, AND GREG STAPLES ON BEHALF OF THE

8 UNITED STATES.

9 THE COURT: GOOD MORNING, GENTLEMEN.

10 MR. MARMARO: GOOD MORNING, YOUR HONOR. RICHARD MARMARO

11 AND JACK DICANIO FOR MR. RUEHLE, WHO IS PRESENT.

12 THE COURT: GOOD MORNING.

13 AND I THINK WE HAVE SOME OTHER LAWYERS; RIGHT? AND

14 PARTIES?

15 MR. SULLIVAN, I SEE YOU THERE, SIR.

16 MR. SULLIVAN: BRENDAN SULLIVAN OF WILLIAMS AND CONNOLLY

17 FOR DR. HENRY NICHOLAS.

18 MR. ASPERGER: GOOD MORNING, YOUR HONOR. JIM ASPERGER

19 AND SETH ARONSON FOR MR. DULL.

20 MR. GREENBERG: GORDON GREENBERG ON BEHALF OF DR. HENRY

21 SAMUELI, WHO IS PRESENT BEFORE THE COURT.

22 THE COURT: GOOD MORNING TO ALL OF YOU.

23 WHAT I THOUGHT I WOULD DO IS READ INTO THE RECORD MY

24 DECISION, AND THEN I’LL GIVE EVERYONE A NOTICE AND OPPORTUNITY TO

25 SAY WHATEVER THEY WANT TO SAY ON THE RECORD.

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1 I HEARD ALL THE EVIDENCE PRESENT AT MR. RUEHLE’S TRIAL

2 AND AT THE EVIDENTIARY HEARINGS. I NOW KNOW THE ENTIRE STORY OF

3 WHAT HAPPENED. THIS DECISION SUPERSEDES ANY PRIOR FINDINGS,

4 RULINGS OR CREDIBILITY DETERMINATION THAT I HAD MADE ON A PARTIAL

5 RECORD WITHOUT THE BENEFIT OF ALL THE FACTS.

6 BASED ON THE COMPLETE RECORD NOW BEFORE ME, I FIND THAT

7 THE GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED THE THREE

8 WITNESSES CRITICAL TO MR. RUEHLE’S DEFENSE. THE CUMULATIVE EFFECT

9 OF THAT MISCONDUCT HAS DISTORTED THE TRUTH-FINDING PROCESS AND

10 COMPROMISED THE INTEGRITY OF THE TRIAL.

11 TO SUBMIT THIS CASE TO THE JURY WOULD MAKE A MOCKERY OF

12 MR. RUEHLE’S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS AND A FAIR

13 TRIAL. THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

14 GUARANTEES THE ACCUSED THE RIGHT TO COMPULSORY PROCESS FOR

15 WITNESSES IN ITS DEFENSE. FOR THIS CONSTITUTIONAL RIGHT TO HAVE

16 TRUE MEANING, THE GOVERNMENT MUST NOT DO ANYTHING TO INTIMIDATE OR

17 IMPROPERLY INFLUENCE WITNESSES. SADLY, GOVERNMENT DID SO IN THIS

18 CASE.

19 MR. RUEHLE’S PRIMARY DEFENSE HERE HAS BEEN THAT HE HAD

20 NO CRIMINAL INTENT TO VIOLATE THE SECURITIES LAWS. TO SUCCEED, IT

21 WAS IMPERATIVE FOR MR. RUEHLE TO CALL THE THREE AVAILABLE

22 WITNESSES WHO HAD KNOWLEDGE OF BROADCOM’S STOCK-OPTION GRANTING

23 PRACTICES. THOSE THREE WITNESSES WERE NANCY TULLOS, THE VICE

24 PRESIDENT OF HUMAN RESOURCES; DAVID DULL, THE GENERAL COUNSEL; AND

25 DR. HENRY SAMUELI, COFOUNDER AND CHIEF TECHNICAL OFFICER. FOR

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1 WHATEVER REASON, THE GOVERNMENT INTIMIDATED AND IMPROPERLY

2 INFLUENCED EACH OF THEM.

3 LET ME FIRST FOCUS ON MS. TULLOS. AFTER MS. TULLOS

4 DECLINED TO COOPERATE WITH THE GOVERNMENT, THE LEAD PROSECUTOR

5 CALLED THE GENERAL COUNSEL OF MS. TULLOS’ NEW EMPLOYER AND MADE

6 INAPPROPRIATE STATEMENTS TO HIM THAT CAUSED MS. TULLOS TO LOSE HER

7 JOB.

8 AFTER THOSE EVENTS IN A REVERSE PROFFER SESSION THAT

9 LEFT HER UNDERSTANDABLY SCARED, MS. TULLOS ENTERED INTO AN UNUSUAL

10 COOPERATION PLEA AGREEMENT CONTAINING A QUESTIONABLE FACTUAL

11 BASIS, THAT SEVEN YEARS BEFORE ANY GOVERNMENT INVESTIGATION

12 COMMENCED INTO BROADCOM, MS. TULLOS OBSTRUCTED JUSTICE BY ASKING

13 AN EMPLOYEE TO DELETE AN E-MAIL THAT MS. TULLOS HERSELF NEVER

14 DELETED AND, IN FACT, COPIED TO ANOTHER PERSON.

15 THE GOVERNMENT ALSO TOLD MS. TULLOS THAT SHE WOULD HAVE

16 TO PLEAD TO A FELONY BECAUSE IT LOOKED MORE CONVINCING TO A JURY.

17 AND, MOST TROUBLING, THE GOVERNMENT MET WITH MS. TULLOS ON 26

18 SEPARATE OCCASIONS AND SUBJECTED HER TO GRUELING INTERROGATION

19 DURING WHICH THE GOVERNMENT INTERJECTED ITS VIEWS OF THE EVIDENCE

20 AND, AT LEAST ON ONE OCCASION, TOLD HER THAT SHE WOULD NOT RECEIVE

21 THE BENEFITS OF COOPERATION UNLESS SHE TESTIFIED DIFFERENTLY THAN

22 SHE HAD INITIALLY IN AN EARLIER SESSION.

23 NOT SURPRISINGLY, MS. TULLOS’ TESTIMONY AT TRIAL CAME

24 OFF SCRIPTED AND NOT CONSISTENT WITH THE EXTENSIVE E-MAIL TRAIL

25 BROUGHT OUT DURING CROSS-EXAMINATION.

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1 I HAVE ABSOLUTELY NO CONFIDENCE THAT ANY PORTION OF MS.

2 TULLOS’S TESTIMONY WAS BASED ON HER OWN INDEPENDENT RECOLLECTION

3 OF EVENTS AS OPPOSED TO WHAT THE GOVERNMENT THOUGHT HER

4 RECOLLECTION SHOULD BE ON THOSE EVENTS.

5 LET ME NEXT FOCUS ON MR. DULL. THE GOVERNMENT BELIEVED

6 THAT MR. DULL WAS A COCONSPIRATOR YET IT DECIDED NOT TO SEEK

7 CHARGES AGAINST HIM FOR SECURITIES FRAUD. IN EFFECT, THE

8 GOVERNMENT LEFT MR. DULL HANGING IN THE WIND AND UNCERTAIN OF HIS

9 FATE FOR ALMOST TWO YEARS. DURING TRIAL, I GRANTED MR. DULL

10 IMMUNITY SO HE COULD TESTIFY FOR THE DEFENSE.

11 AFTER I HAD DONE SO, THE LEAD PROSECUTOR CONTACTED

12 COUNSEL FOR MR. DULL AND THREATENED TO PROSECUTE MR. DULL IF HE

13 TESTIFIED CONSISTENTLY WITH HIS PRIOR TESTIMONY BEFORE THE SEC.

14 COMPOUNDING HIS MISCONDUCT, THE LEAD PROSECUTOR ATTEMPTED TO

15 NEGOTIATE THE TESTIMONY OF MR. DULL BY, AMONG OTHER THINGS,

16 PROMISING A SOFT CROSS IF MR. DULL INCRIMINATED OR DISPARAGED MR.

17 RUEHLE. THE LEAD PROSECUTOR SOMEHOW FORGOT THAT TRUTH IS NEVER

18 NEGOTIABLE.

19 FINALLY, LET ME FOCUS ON DR. SAMUELI. THE

20 UNCONTROVERTED EVIDENCE AT TRIAL ESTABLISHED THAT DR. SAMUELI WAS

21 A BRILLIANT ENGINEER AND A MAN OF INCREDIBLE INTEGRITY. THERE WAS

22 NO EVIDENCE AT TRIAL TO SUGGEST THAT DR. SAMUELI DID ANYTHING

23 WRONG, LET ALONE CRIMINAL. YET, THE GOVERNMENT EMBARKED ON A

24 CAMPAIGN OF INTIMIDATION AND OTHER MISCONDUCT TO EMBARRASS HIM AND

25 BRING HIM DOWN.

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1 AMONG OTHER WRONGFUL ACTS THE GOVERNMENT, ONE,

2 UNREASONABLY DEMANDED THAT DR. SAMUELI SUBMIT TO AS MANY AS 30

3 GRUELING INTERROGATIONS BY THE LEAD PROSECUTOR.

4 TWO, FALSELY STATED AND IMPROPERLY LEAKED TO THE MEDIA

5 THAT DR. SAMUELI WAS NOT COOPERATING IN THE GOVERNMENT’S

6 INVESTIGATION.

7 THREE, IMPROPERLY PRESSURED BROADCOM TO TERMINATE DR.

8 SAMUELI’S EMPLOYMENT AND REMOVE HIM FROM THE BOARD.

9 FOUR, MISLED DR. SAMUELI INTO BELIEVING THAT THE LEAD

10 PROSECUTOR WOULD BE REPLACED BECAUSE OF MISCONDUCT.

11 FIVE, OBTAINED AN INFLAMMATORY INDICTMENT THAT REFERRED

12 TO DR. SAMUELI 72 TIMES AND ACCUSED HIM OF BEING AN UNINDICTED

13 COCONSPIRATOR WHEN THE GOVERNMENT NEW, OR SHOULD HAVE KNOWN, THAT

14 HE DID NOTHING WRONG.

15 AND SEVEN, CRAFTED AN UNCONSCIONABLE PLEA AGREEMENT

16 PURSUANT TO WHICH DR. SAMUELI WOULD PLEAD GUILTY TO A CRIME HE DID

17 NOT COMMIT AND PAY A RIDICULOUS SUM OF $12 MILLION TO THE UNITED

18 STATES TREASURY.

19 ONE MUST CONCLUDE THAT THE GOVERNMENT ENGAGED IN THIS

20 MISCONDUCT TO PRESSURE DR. SAMUELI TO FALSELY ADMIT GUILT AND

21 INCRIMINATE MR. RUEHLE OR, IF HE WAS UNWILLING TO MAKE SUCH A

22 FALSE ADMISSION AND INCRIMINATION, TO DESTROY DR. SAMUELI’S

23 CREDIBILITY AS A WITNESS FOR MR. RUEHLE.

24 NEEDLESS TO SAY, THE GOVERNMENT’S TREATMENT OF DR.

25 SAMUELI WAS SHAMEFUL AND CONTRARY TO AMERICAN VALUES OF DECENCY

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1 AND JUSTICE.

2 IN LIGHT OF MY FINDING OF GOVERNMENT MISCONDUCT AND

3 DENIAL OF MR. RUEHLE’S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS,

4 I MUST NOW EXERCISE MY SUPERVISORY AUTHORITY AND ISSUE THE

5 FOLLOWING ORDER:

6 NUMBER ONE, I’M GOING TO DISMISS, WITH PREJUDICE, THE

7 STOCK-OPTION BACKDATING INDICTMENT AGAINST MR. RUEHLE AND ENTER A

8 JUDGMENT OF ACQUITTAL. THIS DISMISSAL AND JUDGMENT ARE BASED ON

9 TWO SEPARATE, BUT RELATED GROUNDS.

10 FIRST, AS I PREVIOUSLY STATED, THE GOVERNMENT MISCONDUCT

11 HAS DEPRIVED MR. RUEHLE OF THE RIGHT TO COMPULSORY PROCESS AND A

12 FAIR TRIAL. AND SECOND, THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN

13 A CONVICTION AGAINST MR. RUEHLE. BECAUSE THE GOVERNMENT

14 IMPROPERLY INFLUENCED MS. TULLOS, HER TRIAL TESTIMONY IS

15 UNRELIABLE AND MUST BE STRICKEN.

16 WITHOUT MS. TULLOS’ TAINTED TESTIMONY THERE IS

17 INSUFFICIENT EVIDENCE THAT MR. RUEHLE HAD THE CRIMINAL INTENT

18 NECESSARY TO VIOLATE ANY OF THE LAWS ALLEGED IN THE INDICTMENT.

19 I SHOULD NOTE THAT THIS LATTER GROUND PROHIBITS THE

20 GOVERNMENT FROM PROSECUTING MR. RUEHLE AGAIN FOR ANY CRIME RELATED

21 TO THE STOCK OPTION PRACTICES AT BROADCOM. TO DO SO WOULD VIOLATE

22 THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT.

23 NUMBER TWO, I’M GOING TO DISMISS, WITH PREJUDICE, THE

24 STOCK-OPTION BACKDATING INDICTMENT AGAINST DR. NICHOLAS. THE

25 THREE WITNESSES THAT MR. RUEHLE NEEDED TO PROVE HIS INNOCENCE ARE

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1 THE SAME THREE WITNESSES THAT DR. NICHOLAS NEEDS TO PROVE HIS

2 INNOCENCE. CONSEQUENTLY, DR. NICHOLAS IS DENIED HIS RIGHT TO

3 COMPULSORY PROCESS AND HE CANNOT RECEIVE A FAIR TRIAL.

4 NUMBER THREE, I’M GOING TO ORDER GOVERNMENT TO SHOW

5 CAUSE, ON FEBRUARY 2, 2010, AT 9:00 A.M. WHY THE DRUG DIRECTION

6 INDICTMENT AGAINST DR. NICHOLAS SHOULD NOT BE DISMISSED. THE

7 THREE MATERIAL WITNESSES IN THE STOCK-OPTION BACKDATING CASE WILL

8 UNDOUBTEDLY BE WITNESSES IN THE DRUG DISTRIBUTION CASE, BUT I’M

9 NOT SURE WHETHER THE DIFFERENT NATURE OF THE DRUG CHARGES REDUCES

10 THE PREJUDICE TO DR. NICHOLAS SO HE CAN STILL EXERCISE HIS RIGHT

11 TO COMPULSORY PROCESS AND RECEIVE A FAIR TRIAL.

12 I DO ASK THAT THE GOVERNMENT KEEP IN MIND TWO ISSUES IN

13 ITS DECISION WHETHER TO GO FORWARD WITH THE DRUG DISTRIBUTION CASE

14 AGAINST DR. NICHOLAS. FIRST, THERE WILL BE OTHER EVIDENCE OF

15 GOVERNMENT MISCONDUCT INTRODUCED AT THAT TRIAL, SUCH AS THE

16 GOVERNMENT’S THREAT TO ISSUE A GRAND JURY SUBPOENA TO DR.

17 NICHOLAS’ 13-YEAR-OLD-SON AND FORCE THE BOY TO TESTIFY AGAINST HIS

18 FATHER.

19 AND SECOND, DR. NICHOLAS’S E-MAIL TO HIS FORMER WIFE

20 ENTITLED “BRETT’S HOME RUN” WILL NOT BE ADMITTED AT TRIAL UNDER

21 ANY CIRCUMSTANCE. THE E-MAIL IS VERY PRIVATE AND PERSONAL AND

22 WILL NOT BE PUBLICLY AIRED IN THIS COURT AGAIN.

23 FOUR, I’M GOING TO LIFT THE STAY IMPOSED IN THE SEC

24 CIVIL STOCK-OPTION BACKDATING CASE AND DISMISS THAT COMPLAINT

25 WITHOUT PREJUDICE. THE SEC HAS 30 DAYS TO FILE AN AMENDED

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1 COMPLAINT. I DO, HOWEVER, DISCOURAGE THE SEC FROM PROCEEDING

2 FURTHER WITH THE CASE.

3 THE GOVERNMENT’S MISCONDUCT HAS COMPROMISED THE

4 INTEGRITY AND LEGITIMACY OF THE CASE AND THE EVIDENCE AT MR.

5 RUEHLE’S TRIAL ESTABLISHED THE SEC WILL HAVE GREAT DIFFICULTY

6 PROVING THAT THE DEFENDANTS ACTED WITH THE RECKLESS SCIENTER.

7 THE ACCOUNTING STANDARDS AND GUIDELINES UP WERE NOT

8 CLEAR, AND THERE WAS CONSIDERABLE DEBATE IN THE HIGH-TECH INDUSTRY

9 AS TO THE PROPER ACCOUNTING TREATMENT FOR STOCK OPTION GRANTS.

10 INDEED, APPLE AND MICROSOFT WERE ENGAGING IN THE EXACT SAME

11 PRACTICES AS THOSE OF BROADCOM.

12 NOW, I’M SURE THERE ARE GOING TO BE MANY PEOPLE WHO ARE

13 GOING TO BE CRITICAL OF MY DECISION IN THIS CASE AND ARGUE THAT

14 I’M BEING TOO HARD ON THE GOVERNMENT. I STRONGLY DISAGREE. I

15 HAVE A SOLEMN OBLIGATION TO HOLD THE GOVERNMENT TO THE

16 CONSTITUTION. I’M DOING NOTHING MORE AND NOTHING LESS. AND I ASK

17 MY CRITICS TO PUT THEMSELVES IN THE SHOES OF THE ACCUSED.

18 YOU ARE CHARGED WITH SERIOUS CRIMES AND, IF CONVICTED ON

19 THEM, YOU WILL SPEND THE REST OF YOUR LIFE IN PRISON. YOU ONLY

20 HAVE THREE WITNESSES TO PROVE YOUR INNOCENCE AND GOVERNMENT HAS

21 INTIMIDATED AND IMPROPERLY INFLUENCED EACH ONE OF THEM. IS THAT

22 FAIR? IS THAT JUSTICE? I SAY ABSOLUTELY NOT.

23 I’D LIKE TO CONCLUDE WITH THE POWERFUL AND INSIGHTFUL

24 PASSAGE FROM THE U.S. SUPREME COURT IN THE CASE OF BERGER V.

25 UNITED STATES.

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1 “THE UNITED STATES ATTORNEY IS THE REPRESENTATIVE, NOT

2 OF AN ORDINARY PARTY TO A CONTROVERSY, BUT OF A SOVEREIGNTY WHOSE

3 OBLIGATION TO GOVERN IMPARTIALLY IS AS COMPELLING AS ITS

4 OBLIGATION TO GOVERN AT ALL, AND WHOSE INTEREST, THEREFORE, IN A

5 CRIMINAL PROSECUTION IS NOT THAT IT SHALL WIN A CASE, BUT THAT

6 JUSTICE SHALL BE DONE. AS SUCH, HE IS IN A PECULIAR AND A VERY

7 DEFINITE SENSE THE SERVANT OF THE LAW, THE TWOFOLD AIM OF WHICH IS

8 THAT GUILT SHALL NOT ESCAPE OR INNOCENT SUFFER.

9 HE MAY PROSECUTE WITH EARNESTNESS AND VIGOR. INDEED, HE

10 SHOULD DO SO. BUT WHILE HE MAY STRIKE HARD BLOWS, HE IS NOT AT

11 LIBERTY TO STRIKE FOUL ONES. IT IS MUCH HIS DUTY TO REFRAIN FROM

12 IMPROPER METHODS CALCULATED TO PRODUCE A WRONGFUL CONVICTION AS IT

13 IS TO USE EVERY LEGITIMATE MEANS TO BRING ABOUT A JUST ONE.”

14 I SINCERELY REGRET THAT THE GOVERNMENT DID NOT HEED THE

15 RIGHTEOUS WORDS OF THE SUPREME COURT.

16 MR. MARMARO, I’LL HEAR FROM YOU FIRST, SIR, IF THERE IS

17 ANYTHING YOU OR MR. RUEHLE WOULD LIKE TO STATE ON THE RECORD.

18 MR. MARMARO: YOUR HONOR, IT’S VERY DIFFICULTY

19 OBVIOUSLY, HAVING HEARD THE COURT’S COMMENTS, TO GIVE A COMPOSED

20 RESPONSE OR A STATEMENT, BUT I JUST WANT TO SAY ONE THING, YOUR

21 HONOR. YOU HAVE SAID ALL ALONG THAT YOU WANTED TO HEAR THE WHOLE

22 STORY. BUT IF IT WEREN’T FOR WHAT YOU DID, WE WOULD NOT HAVE

23 HEARD THE WHOLE STORY. IF IT WEREN’T FOR YOUR DECISION TO GRANT

24 DEFENSE WITNESSES IMMUNITY, WE WOULD NOT HAVE HEARD FROM DR.

25 SAMUELI AND MR. DULL. AND YOU WOULD HAVE BEEN STUCK WITH ONLY

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1 PART OF THE STORY.

2 SO IN A VERY LARGE SENSE, YOUR HONOR, WHAT HAPPENED,

3 WHAT YOU ANNOUNCED TODAY IS THE DIRECT RESULT OF WHAT YOU DID.

4 AND I HAVE TO TELL YOU, YOUR HONOR, 34 YEARS AGO TODAY,

5 TO THE DAY, DECEMBER 15, 1975, I PASSED THE BAR. WHAT HAPPENED IN

6 THIS COURT WAS VERY DIFFICULT TO WATCH, BUT WHAT HAPPENED TODAY

7 RESTORES MY FAITH AND I CAN HONESTLY SAY I HAVE NEVER BEEN MORE

8 PROUD TO BE A LAWYER.

9 THE COURT: MR. SULLIVAN, I KNOW I’M PROBABLY CATCHING

10 YOU A LITTLE OFF GUARD, BUT GIVEN THE MANY ORDERS THAT I HAVE

11 ISSUED, I DON’T KNOW IF THERE IS ANYTHING YOU WOULD LIKE TO SAY ON

12 THE RECORD, SIR.

13 MR. SULLIVAN: OF COURSE, MR. MARMARO IS A YOUNG LAWYER.

14 I HAVE BEEN DOING THIS 42 YEARS, BUT I ADOPT HIS MOVING WORDS.

15 I GUESS THAT WHEN I WAS A YOUNG LAWYER, I WAS NAIVE AND

16 I THOUGHT THAT FAIRNESS WAS ASSURED IN OUR COURTROOMS BECAUSE OUR

17 FOUNDING FATHERS HAD DEVISED THIS MAGICAL CONSTITUTION AND THIS

18 MAGICAL BILL OF RIGHTS, AND SOMEHOW IF THE GOVERNMENT LIVED BY

19 THAT, THAT WE WOULD ALWAYS BE JUST FINE. BUT I WAS NAIVE. I

20 LEARNED IN SHORT ORDER THAT THE ONLY THING THAT ASSURES FAIRNESS

21 IN THE COURTROOM ARE JUDGES WITH COURAGE TO KEEP THEIR EYES OPEN,

22 WATCH WHAT IS HAPPENING, KEEP AN OPEN MIND AND MAKE FAIR

23 DECISIONS, FAIR TO BOTH SIDES.

24 AND, YOUR HONOR, I STAND IN AWE OF WHAT YOU HAVE DONE

25 HERE TODAY BASED UPON THE MANY DAYS OF TEDIOUS TRIAL THAT WE HAVE

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1 SEEN.

2 I’LL ADD ONLY ONE THING TO YOUR SUPREME COURT ARGUMENT.

3 AND WE ALL KNOW, WITHOUT SAYING, THAT THERE ARE MANY, MANY FINE

4 MEN AND WOMEN IN GOVERNMENT SERVICE, IN PROSECUTOR’S OFFICES AND

5 ALSO IN THE FBI. AND WE APPLAUD THEM. AND SOMETIMES WE DO SEE

6 THE KIND OF MISCONDUCT ON THE PART OF AN INDIVIDUAL OR SEVERAL

7 INDIVIDUALS.

8 BUT I’M REMINDED WHEN I HEARD YOUR SUPREME COURT QUOTE,

9 HOW SIMILAR IT WAS TO THE QUOTE I HEARD EIGHT MONTHS AGO, APRIL 8,

10 2008, FROM THE ATTORNEY GENERAL HIMSELF, A MESSAGE THAT WAS

11 DELIVERED TO ALL STATE DEPARTMENT U.S. ATTORNEYS. AND I QUOTE

12 HIM.

13 “YOUR JOB AS U.S. ATTORNEYS IS NOT TO CONVICT PEOPLE,

14 YOUR JOB IS NOT TO WIN CASES. YOUR JOB IS TO DO JUSTICE. YOUR

15 JOB IS IN EVERY CASE, EVERY DECISION THAT YOU MAKE, TO DO THE

16 RIGHT THING. ANYBODY WHO ASKS YOU TO DO SOMETHING OTHER THAN THAT

17 IS TO BE IGNORED. ANY POLICY THAT IS AT TENSION WITH THAT IS TO

18 BE QUESTIONED AND BROUGHT TO MY ATTENTION.”

19 THE MESSAGE DELIVERED BY THIS COURT TODAY HAD BEEN HEARD

20 THROUGHOUT THE COUNTRY BY ALL WHO ENFORCE THE LAW, AND WE ARE ALL

21 BETTER OFF AND THE SYSTEM OF JUSTICE WILL BE BETTER OFF FOR THE

22 COURAGE DEMONSTRATED IN THIS COURT ON THIS DATE. THANK YOU.

23 THE COURT: MR. GREENBERG, IS THERE ANYTHING YOU WOULD

24 LIKE TO SAY ON BEHALF OF DR. SAMUELI?

25 MR. GREENBERG: THANK YOU, YOUR HONOR.

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1 I’M IN A DANGEROUS POSITION, A LAWYER WHO IS BREATHLESS.

2 I REALLY — MY BREATH IS TAKEN AWAY BECAUSE, ECHOING THE

3 SENTIMENTS OF MY COLLEAGUES HERE, THIS TRULY IS A TURNING POINT, I

4 BELIEVE, THAT WILL BE HEARD THROUGHOUT THE COUNTRY.

5 I SAT AT THAT TABLE AS A PROSECUTOR AND ENJOYED IT. IT

6 WAS THE GREATEST JOB I HAD IN MY LIFE. THE MOST ENJOYABLE BECAUSE

7 THE PRESUMPTION OF CREDIBILITY, YOU ARE CLOAKED WITH IT FROM THE

8 MOMENT THAT YOU WALK INTO THE COURTROOM. USUALLY, FROM THE

9 JUDGE’S PERSPECTIVE, FRANKLY FROM THE CLERK’S PERSPECTIVE, IT’S

10 YOUR CREDIBILITY TO LOSE.

11 AND IT’S A TREMENDOUS BURDEN DOING IT ON THE OTHER SIDE

12 OF THE EQUATION, YOUR HONOR, TO PIERCE THAT. AND TODAY THE

13 COURT’S ACKNOWLEDGMENT, ESPECIALLY IN LIGHT OF WHERE WE STARTED IN

14 THIS CASE, YOUR HONOR, WHICH I CAN ONLY SAY TO YOUR HONOR, THAT

15 IT’S REMARKABLE BECAUSE IN A PUBLIC SETTING, YOUR HONOR HAS SET

16 THE RECORD STRAIGHT AND INDICATED INITIALLY THAT IT WANTED TO HEAR

17 THE FACTS OF THIS AND REJECTED OUR PLEA, AND I COULD ONLY BE

18 THANKFUL FOR THAT.

19 I SAY THAT TO YOU SINCERELY BECAUSE IT TAKES NOT ONLY A

20 TREMENDOUS JUDGE, BUT A TREMENDOUS HUMAN BEING TO RECOGNIZE THAT

21 THAT WAS, FRANKLY, THE WRONG DECISION, IF I MAY SAY SO, YOUR

22 HONOR, AT THE TIME IN TERMS OF HOW IT WAS POSTURED AT THAT TIME.

23 AND I THANK YOUR HONOR FOR LISTENING CAREFULLY AND

24 KEEPING AN OPEN MIND, AND TRULY LOOKING AT THE EVIDENCE, AND

25 UNDERSTANDING AND GETTING TO THE POINT OF EXACTLY WHAT HAPPENED

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1 HERE.

2 AND I THINK THAT OUR JUSTICE SYSTEM WILL EMBRACE THIS.

3 THERE HAVE BEEN MANY CIRCUMSTANCES AROUND THE COUNTRY MOST

4 RECENTLY WHERE A NUMBER OF CASES HAVE BEEN TOSSED BECAUSE OF

5 PROSECUTORS PLACING THEIR THUMB ON THE SCALES OF JUSTICE. AND

6 SADLY, THE OFFICE THAT I LOVED SO MUCH, HERE, WHICH IS A

7 TREMENDOUS OFFICE, THE U.S. ATTORNEY’S OFFICE, DID SO IN THIS

8 CASE.

9 AND I THANK YOUR HONOR FOR THE COURAGE TO GO FORWARD AND

10 SET THE RECORD STRAIGHT. I HAVE REPRESENTED A HUMAN BEING HERE

11 THAT I HAVE NEVER HAD MORE RESPECT FOR, OF ANYONE I HAVE

12 REPRESENTED. AND NO DISRESPECT TO ANYONE ELSE. HE TRULY IS A

13 WONDERFUL HUMAN BEING. AND I HAVE WATCHED THE FAMILY GO THROUGH

14 THIS PROCESS FOR THREE AND A HALF YEARS. AND IT’S BEEN UGLY. AND

15 IT JUST GOT UGLIER AND UGLIER UNTIL TODAY IN WHICH WE CAN ALL GO

16 HOME AND CELEBRATE.

17 THANK YOU, YOUR HONOR.

18 THE COURT: MR. ASPERGER?

19 MR. SLOAN: THANK YOU, YOUR HONOR.

20 AS THE COURT KNOWS, MR. ARONSON AND I AND MR. DULL HAVE,

21 IN MANY WAYS, BEEN BYSTANDERS TO THESE CRIMINAL PROCEEDINGS, BUT

22 THIS HAS NONETHELESS BEEN EXTREMELY CHALLENGING AS I’M SURE THE

23 COURT IS WELL AWARE, FOR MR. DULL AND HIS FAMILY. AND WE APPLAUD

24 THE COURT. WE ECHO WHAT OUR COLLEAGUES HAVE SAID AND APPLAUD THE

25 COURT FOR THE GREAT COURAGE THAT THE COURT HAS SHOWN IN ITS RULING

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1 TODAY.

2 ONE OF THE THINGS THAT STRUCK ME IN THE LAST TWO WEEKS

3 WAS WHEN THE COURT SAID THAT YOU’RE HERE TO DO JUSTICE, TO DO THE

4 RIGHT THING, AND THAT’S WHY YOU TOOK THE BENCH. THAT’S WHY I WAS

5 A FEDERAL PROSECUTOR FOR 10 YEARS, YOUR HONOR, AND WAS PROUD TO BE

6 ABLE TO SAY I REPRESENT THE UNITED STATES OF AMERICA. IT’S WHY,

7 IN REPRESENTING MR. DULL AND TRYING TO SUPPORT HIM AND HIS FAMILY,

8 WE’RE VERY PROUD TO BE REPRESENTING A MAN OF SUCH INTEGRITY WHO

9 WAS ALWAYS THERE TO DO THE RIGHT THING.

10 AND THIS WILL BE A GREAT RELIEF OF THE BURDENS AND

11 TRYING CIRCUMSTANCES THAT HE HAS HAD TO GO THROUGH.

12 AND I WILL ECHO WHAT, AGAIN, MR. MARMARO AND

13 MR. SULLIVAN AND MR. GREENBERG HAD SAID. IT’S JUDGES LIKE YOU WHO

14 HAVE SHOWN THE COURAGE TO MAKE THE RULING THAT YOU HAVE MADE; TO

15 DO THE RIGHT THING; TO LOOK AT THE FACTS WITH AN OPEN MIND; AND TO

16 BE OPEN TO CHANGING YOUR VIEW OF THE FACTS AND COMING UP WITH

17 DOING THE RIGHT THING AND DOING FAIRNESS THAT RESTORES OUR FAITH

18 IN THE SYSTEM OF JUSTICE.

19 AGAIN, IT STRUCK ME THAT THE BIGGEST DISAPPOINTMENT FOR

20 MR. DULL, WHEN THE EVENTS THAT HAPPENED OCCURRED IN THIS CASE, WAS

21 HIS PROFOUND DISAPPOINTMENT IN OUR JUSTICE SYSTEM. I’M SURE I

22 SPEAK FOR HIM AS FOR ALL OF US THAT YOUR RULING TODAY DOES RESTORE

23 THAT FAITH, AND WE’RE VERY GRATEFUL FOR IT, YOUR HONOR.

24 AS THE COURT IS WELL AWARE, WE HAVE A PROPOSED ORDER

25 THAT WHENEVER YOU FEEL IT APPROPRIATE TO TAKE UP, WE CAN, BUT I

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1 REALIZE TODAY IS NOT THE TIME.

2 THANK YOU, YOUR HONOR.

3 THE COURT: VERY WELL.

4 I SINCERELY APPRECIATE ALL THE COMPLIMENTS THAT COUNSEL

5 HAVE GIVEN, ESPECIALLY THEY’RE FROM THE TITANS IN THE LEGAL

6 PROFESSION. SO THEY MEAN A LOT TO ME. BUT IT’S REALLY IMPORTANT

7 I THINK, TO ME, THAT YOU AND MR. RUEHLE, DR. NICHOLAS, MR. DULL,

8 AND DR. SAMUELI REALIZE, I DON’T NEED TO BE COMPLIMENTED. THE

9 WISDOM, THE BRILLIANCE WAS IN THE FRAMERS OF OUR CONSTITUTION.

10 I’M JUST DOING MY JOB.

11 MR. ADKINS, IS THERE ANYTHING THE GOVERNMENT WOULD LIKE

12 TO SAY? MR. CARDONA?

13 MR. CARDONA: YOUR HONOR, VERY BRIEFLY. FIRST, AS YOU

14 KNOW, THIS IS THE FIRST TIME I HAVE BEEN DOWN HERE IN THIS CASE.

15 I APOLOGIZE FOR NOT HAVING BEEN OVER HERE THE LAST TWO WEEKS WHEN

16 THESE EVENTS WERE GOING DOWN. I WOULD HAVE HOPED I COULD HAVE

17 SAID SOMETHING THAT MIGHT HAVE CONVINCED THE COURT TO RULE

18 DIFFERENTLY THAN IT DID TODAY.

19 I DON’T KNOW IF YOU WERE TOLD, BUT I WAS OUT OF, FIRST

20 THE STATE AND OUT OF THE COUNTRY SO COULD NOT BE HERE.

21 THE COURT: I WAS.

22 MR. ADKINS: WITH THAT, YOUR HONOR, OBVIOUSLY WE HAVE

23 HEARD YOUR DECISION. RESPECTFULLY, WE DISAGREE WITH IT. I DON’T

24 THINK THAT WILL COME AS A SURPRISE TO YOU. WE HAVE SUBMITTED OUR

25 PAPERS. WE BELIEVE WE HAVE SET FORTH OUR POSITION IN OUR PAPERS

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1 AND THE OTHER PLEADINGS. AND I DON’T BELIEVE THERE IS ANY POINT

2 IN SAYING ANYTHING FURTHER HERE. YOU UNDERSTAND OUR POSITIONS. I

3 UNDERSTAND YOU DISAGREE WITH THEM. I HOPE YOU UNDERSTAND WE

4 DISAGREE WITH YOUR RULING AND WE WILL NEED TO DECIDE WHAT WE DO

5 NEXT. THANK YOU.

6 THE COURT: AND I APPRECIATE THAT, SIR.

7 ALL RIGHT. I DON’T THINK ANYTHING NEEDS TO BE SAID

8 FURTHER OTHER THAN, MR. RUEHLE, YOU ARE A FREE MAN.

9 THE DEFENDANT: THANK YOU, YOUR HONOR.

10 (WHEREUPON THE PROCEEDINGS WERE ADJOURNED AT 9:33.)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

2 -OOO-

3

4 CERTIFICATE

5

6 I HEREBY CERTIFY THAT PURSUANT TO SECTION 753, TITLE 28,

7 UNITED STATES CODE, THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT

8 OF THE STENOGRAPHICALLY REPORTED PROCEEDINGS HELD IN THE

9 ABOVE-ENTITLED MATTER.

10

11 DATE: DECEMBER 15, 2009

12

13

__________________________________

14 MARIA DELLANEVE, U.S. COURT REPORTER

CSR NO. 9132

Kirkland Taps Hammes to Replace Yannucci

Kirkland & Ellis has chosen dealmaker Jeffrey Hammes to replace longtime chairman Thomas Yannucci. http://www.chicagotribune.com/business/chi-tue-chicago-law-1208dec08,0,5601902,print.story and  http://amlawdaily.typepad.com/amlawdaily/2009/12/new-chair-at-kirklanda-corporate-lawyer.html

Hammes specializes in private equity and splits his time between Chicago, where he started in 1985, and San Francisco and Palo Alto. http://www.kirkland.com/sitecontent.cfm?contentID=220&itemID=7879 He has served as vice chair of the firm’s 15-member management committee for the past year, in anticipation of his inheriting the top slot from Yannucci http://www.kirkland.com/sitecontent.cfm?contentID=220&itemID=8058. Yannucci, a longtime Lawdragon 500 member and standout litigator in Washington, D.C., is approaching the age of 60, and Kirkland prohibits partners past that age from serving on the management committee.

U.S. to Pay $3.4 Billion in American Indian Trust Saga

The federal government has agreed to pay $1.4 billion in damages and set up a $2 billion fund for American Indians who claimed the U.S. mismanaged trust accounts from Indian land that date to the 19th Century.  http://www.nytimes.com/2009/12/09/us/09tribes.html?_r=1&hpw

The settlement caps a 13-year litigation saga that spanned three presidencies, seven trials covering 192 trial days, 22 published judicial opinions, and 10 federal appeals court hearings, according to the New York Times. Federal Judge Royce C. Lamberth found two secretaries of the interior in contempt for their handling of the lawsuit before the Bush administration complained of bias in 2006, and he was removed from the case. http://www.washingtonmonthly.com/features/2001/0204.mencimer.html

Washington, D.C. Judge James Robertson http://www.dcd.uscourts.gov/robertson-bio.html has handled the case since.

The Interior Department manages about 56 million acres of Indian trust land, parts of which are leased for mining, livestock grazing, timber harvesting and oil and gas drilling. It then distributes the revenue raised by those leases to the American Indians. In the 2009 fiscal year, the Interior Department collected about $298 million for more than 384,000 individual Indian accounts.

The settlement is a huge victory for Keith Harper of Kilpatrick Stockton, which reportedly has spent more than $20 million on the case. http://www.law.com/jsp/tal/digestTAL.jsp?id=1202436181268&src=EMC-Email&et=editorial&bu=The%20American%20Lawyer&pt=Am%20Law%20Litigation%20Daily&cn=AmLaw_LitigationDaily_20091209&kw=more&hbxlogin=1

Harper http://www.kilpatrickstockton.com/attorneys/detail.aspx?ID=13797 has worked on Corbell v. Kempthorne since he joined Kilpatrick in 1994 from the Native American Rights Fund http://www.narf.org/. The ABA published Harper’s article from Human Rights Magazine, “Cobell v. Norton: Redressing a Century of Malfeasance.” http://www.abanet.org/irr/hr/spring06/harper.html

Among many others working on the case were longtime Lawdragon 500 member David Hayes of the Interior Department http://www.doi.gov/bio/hayes_bio.html, Associate Attorney General Thomas Perrelli http://en.wikipedia.org/wiki/Thomas_J._Perrelli (formerly of Jenner & Block) and sole practitioner Dennis Gingold. Mark Levy, the well-respected former appellate head at Kilpatrick who killed himself in April, had also done significant work on the case.

The Wikipedia article on the case is here http://en.wikipedia.org/wiki/Cobell_v._Salazar.

$103 Million in Punitives Awarded in Breast Cancer Cases

Pfizer was slammed with $103 million in punitive damages in Philadelphia last week in the cases of two women from Central Illinois who took hormonal drugs and later developed breast cancer. http://www.nytimes.com/2009/11/24/business/24wyeth.html?_r=1&scp=1&sq=berezofsky%20&%20breast%20cancer&st=cse and http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202435798726&M_Hit_for_Pfizer_Two_Huge_Hormone_Replacement_Therapy_Verdicts

Those decisions follow a devastating decision by the 8th U.S. Circuit Court of Appeals, Scroggins v. Wyeth (now owned by Pfizer), that details Wyeth’s “dismiss and distract” strategy of the last three decades to maintain its lucrative franchise in hormone replacement drugs – decades after a connection between doses of estrogen and breast and other gynecological cancers were discovered. http://www.ca8.uscourts.gov/opndir/09/11/082555P.pdf The decision was written by Circuit Judge Roger Wollman. http://jama.ama-assn.org/cgi/content/full/288/3/321

The cases are just the tip of the iceberg of breast cancer litigation, which is estimated to have reached 10,000 cases nationwide, including 1,500 in Philadelphia. 

Leading Pfizer’s defense is general counsel Amy Schulman, perhaps the leading product liability defense counsel in the country; before she joined Pfizer, she had a book of business estimated at $65 million when practicing at DLA, where she was the highest paid partner.http://blogs.wsj.com/law/2006/09/21/hbs-studies-dla-pipers-amy-schulman/ and http://blogs.wsj.com/law/2008/05/28/dlas-amy-schulman-lands-top-legal-job-at-pfizer/

In the Philadelphia cases, Houston’s Littlepage Booth http://www.littlepagebooth.com/
led the charge alongside Esther Berezofsky of Williams Cuker & Berezofsky http://www.wcblegal.com/attorneys.php?action=view&id=2. They won $75 million in punitives and $3.75 million in compensatory damages for Connie Barton of Peoria, IL.

Littlepage Booth, comprised of Zoe Littlepage and Rainey Booth, currently represents more than 1,000 women who have been injured by Hormone Replacement Therapy.

Littlepage, Ron Rosenkranz of Finkelstein & Partners and Tobias L. Millrood of Pogust Braslow Millrood http://www.pbmattorneys.com/millrood.php
won $28 million in punitives and $6.3 million in compensatory damages for Donna Kendall of Decatur, IL, whose breast cancer was found after she had taken hormone drugs for 11 years.

The litigation could be enormous given longstanding belief in the breast cancer community that hormonal treatment triggered breast cancer – beliefs that were denied by pharmaceutical companies and some medical writers, whose work was funded by those companies. A study by the Women’s Health Institute in 2002 linked hormone replacement therapy with breast cancer. http://jama.ama-assn.org/cgi/content/full/288/3/321

Hormonal drugs are still used by millions of women to treat menopause. The drugs at issue in the Philadelphia litigation both deliver estrogen; Premarin and Prempro are made by Wyeth, while Provera is made by Pharmacia and Upjohn. Pfizer acquired Pharmacia in 2003 and Wyeth in January 2009.

The recent decision by Judge Wollman, joined by Senior Circuit Judge John R. Gibson http://en.wikipedia.org/wiki/John_R._Gibson
 and Judge Diana Murphy http://en.wikipedia.org/wiki/Diana_E._Murphy
 upheld compensatory awards to Donna Scroggins against Wyeth and Upjohn, as well as a punitive award against Upjohn, but awarded a new punitive phase against Wyeth.  The court found “there was sufficient evidence upon which a jury could conclude that Wyeth acted with reckless disregard to the risk of injury.” Scroggins won #27.1 million against Wyeth and Upjohn in March 2008. http://www.bloomberg.com/apps/news?pid=20601087&sid=aHJ8LaF1INvE&refer=home

Scroggins was represented by Austin lawyer James A. Morris Jr. of The Morris Law Firm.  http://www.jamlawyers.com/index.php?option=com_content&view=article&id=6&Itemid=4  Lyn Pruitt of Little Rock’s Mitchell Williams defended the pharmaceutical companies.http://mitchellwilliamslaw.com/bio.asp?bioID=48

The Philadelphia cases, also, required a finding of “wanton and reckless” conduct, which the jurors found because Wyeth paid consultants and ghostwriters of medical journal articles to downplay the risks of estrogen.

George McDavid of Reed Smith defended Wyeth in the Barton case. http://www.reedsmith.com/our_people.cfm?widCall1=customWidgets.content_view_1&cit_id=879 while a team of product liability defenders handled the Kendall case, including Reed Smith’s Barbara Binis http://www.reedsmith.com/our_people.cfm?cit_id=1350&widCall1=customWidgets.content_view_1
and Michael Scott, Charles Goodell of Goodell DeVries http://www.gdldlaw.com/content/bio_goodell.htm
 and Gita Rothschild of McCarter & English. http://www.mccarter.com/new/homenew.aspx?searchlink=showbionew&show=893

The Day Westlaw & Lexis Kissed Their Asses Google-bye!

We all knew this day was coming. And on November 16, 2009, it did.

Google Scholar is publishing legal caselaw. http://www.scotxblog.com/news-and-links/google-wades-into-free-legal-research-for-texas-too/ That’s right: Google’s in the legal publishing game. The Law. Free. Online.

Here’s a post from Rick Klau, a member of the Google team, that just destroyed Westlaw and Lexis. http://tins.rklau.com/2009/11/us-caselaw-in-google-scholar.html His report includes lots of commentary on the importance of Google freeing “the law” from proprietary organizations that have made money for decades on the product of judges and courts, which are public institutions. And here’s the popular Ernie the Attorney, with a smart take on what Google has accomplished. http://www.ernietheattorney.net/ernie_the_attorney/2009/11/google-now-helps-with-legal-research.html

The law belongs to us all, and it may truly now be free. Thrilling.

Google engineer Anurag Acharya led the effort. He was motivated by making the law accessible to all http://www.allheadlinenews.com/articles/7017021931?Need%20Legal%20Information?%20There’s%20A%20Cite%20For%20That.

Not surprisingly, the legal establishment is not quite as delirious. Here’s the post by Robert Ambrogi, who has become the arbiter of the ever colliding worlds of law and the Internet http://legalblogwatch.typepad.com/legal_blog_watch/2009/11/the-google-gorilla-enters-the-research-game.html. And here, Carolyn Elefant weighs in with her thoughtful view of its impact http://legalblogwatch.typepad.com/legal_blog_watch/2009/11/the-google-gorilla-enters-the-research-game.html. Monica Bay also offers a smart take, including canned releases from LexisNexis and Thomson Reuters http://commonscold.typepad.com/commonscold/2009/11/google-scholar-posts-cases-.html .

From LexisNexis:

“Free case law is not new to the Internet and is included on some of our own sites like lexisONE, LexisWeb and lawyers.com.  However, our legal customers generally require more than raw, unfiltered content to inform their business decisions. They look to LexisNexis to find needles in the ever-growing information haystack, not the haystack itself.

Not only do we provide the most complete portfolio of public and proprietary legal content, but LexisNexis enables legal professionals to conduct their research more efficiently, effectively, and with the assurance of accuracy.  The LexisNexis legal research service provides critical analysis and commentary such as Mathew Bender, citation analysis like Shepard’s, deep online linkages built over time to relevant content, and unique functionality such as pinpoint searching by topic or by complex legal phrases.

Our goal is to deliver relevant, reliable results that enable our customers to make informed decisions faster.”

From Thomson Reuters:

“Google has shared with us their plans to expand Google Scholar to include the search of publicly available caselaw and some legal journals. We believe that government-authored information should be accessible to the public, and Google joins existing sites such as FindLaw, the Legal Information Institute at Cornell University Law School and scores of others as sites that offer this information free of charge.

Our customers rely on us for very specialized information and legal insight, and use Westlaw to find exactly the right answer on very specific points of law.”

It’s certainly true that practitioners will not readily abandon the tried and true, and that the fulsomeness of the LexisNexis and Thomson suites has a certain repellant value. Here’s an interesting take from the IT side: http://arnoldit.com/wordpress/2009/11/18/google-squeezes-lexisnexis-and-westlaw-hard/.

Expect lots of continuing discussion and development. But bottom line: the power of Google, free and the majesty of the law is a site to behold.

And now you don’t even need a password.

Here are links to some old interviews with Acharya:  http://newsbreaks.infotoday.com/nbReader.asp?ArticleId=37309 and http://timesofindia.indiatimes.com/world/us/Now-Google-goes-scholarly/articleshow/929365.cms.

In the Times of India article, he noted, “If I have seen further, it is by standing on the shoulders of giants.”

O’Donnell Wins Massive Hurricane Liability Ruling

Los Angeles trial lawyer Pierce O’Donnell has pulled off a mammoth ruling against the Army Corps of Engineers on behalf of residents of New Orleans whose homes were damaged and destroyed when the Mississippi River-Gulf Outlet channel was overwhelmed in the wake of Hurricane Katrina. http://www.nytimes.com/2009/11/19/us/19orleans.html?_r=1&hpw and http://www.nola.com/hurricane/index.ssf/2009/11/post_16.html

The ruling is the first holding the government liable for any of the flooding that occurred after Hurricane Katrina.

The decision, which itself applies to just six residents of St. Bernard Parish and the Lower 9th Ward of New Orleans, portends billions of dollars in liability against the government. There are already more than half-a- million Hurricane Katrina related claims pending against the government, and damages could tally $500 billion, according to one report.

Federal Judge Stanwood R. Duval Jr. http://www.fjc.gov/servlet/tGetInfo?jid=669 and http://en.wikipedia.org/wiki/Stanwood_Duval issued a blistering ruling against the Corps, finding its negligence in maintaining the Canal was not policy but “insouciance, myopia and shortsightedness.” The Judge had earlier declined to find the Corps liable for construction of the Canal, so the battle was over liability for its maintenance.

O’Donnell is a fascinating and brilliant L.A.-based trial lawyer http://www.pierceodonnell.com/ who has pulled off a string of astounding victories, representing Art Buchwald against Paramount Pictures  in the Coming to America case and playing a key role securing $1.9 billion from Sempra and $1.7 billion from El Paso National Gas in the California Energy Litigation. The victory is an amazing comeback for O’Donnell, who had been investigated in L.A. for campaign finance violations and cleared earlier this year.

A Lawdragon 500 member (as is Judge Duval), O’Donnell is noted for his intellectual firepower, which allowed him to surmount the government’s protection from litigation over flood control projects. O’Donnell convinced Duval the MR-GO channel was a navigation channel, opening the Corps to liability. He is part of a group of the top plaintiff’s lawyers from New Orleans and the nation who have formed the Katrina Justice Litigation Group http://katrinajustice.com/.

New Orleans standout Joe Bruno http://www.jbrunolaw.com/ worked with O’Donnell in securing the victory, which awards $719,000 to the six plaintiffs.

Here are links to the court’s order http://www.osdbx.com/Katrina/PDF/Trial_Order.pdf, as well as the complaint http://www.osdbx.com/Katrina/PDF/D_Complaint.pdf and injunction complaint http://www.osdbx.com/Katrina/PDF/I_Complaint.pdf. O

If Imitation is Flattery, Thanks Super Lawyers!

Super Lawyers released its first law school rankings this week with a methodology taken straight from the Lawdragon playbook.

When Lawdragon released its first law school ranking in 2007, http://www.lawdragon.com/index.php/lawdragon/fullstory/law_school_update/, we came up with a new twist on the controversial formula used by U.S. News & World Report. Rather than give points for number of library volumes or the vague ‘reputation’ criteria, we tallied the law schools attended by the members of our annual Lawdragon 500 Leading Lawyers in America. It’s a fresh, practice-oriented approach that looks at the producers of leading practitioners, corporate counsel and judges.

Both Above the Law http://abovethelaw.com/2009/11/super_law_school_rankings.php and the Wall Street Journal Law Blog offered their take on the Super Lawyers Law School ranking. http://blogs.wsj.com/law/2009/11/16/harvard-tops-first-ever-super-lawyers-ranking-of-law-schools/ While both questioned the need for another law school ranking, we’d like to note that after a decade or so of discussing the U.S. News & World Report rankings with practitioners, judges and academicians nationwide, it’s clear that it is considered at worst a flawed system and at best one in sore need of alternatives.

Here is the link to the Super Lawyers Law Schools http://www.superlawyers.com/toplists/lawschools/united-states/2009/.

While we have our differences with Super Lawyers’ overall methodology and approach to selecting its list of lawyers, the resulting law school list is quite similar to Lawdragon’s – a distinct reflection of schools producing top practitioners.

We compared the top 30 law schools for Lawdragon and Super Lawyers and found only four differences.

Lawdragon includes: University of Southern California http://lawweb.usc.edu/, St. John’s http://www.stjohns.edu/academics/graduate/law, Tulane http://www.law.tulane.edu/index.aspx and University of Houston http://www.law.uh.edu/. Super Lawyers includes: University of Minnesota http://www.law.umn.edu/, University of Wisconsin http://law.wisc.edu/, Temple (link currently down) and University of North Carolina http://www.law.unc.edu/. Many of the discrepancies in the lists are based on Super Lawyers’ inclusion of 5 percent of lawyers from most U.S. jurisdictions compared to Lawdragon’s inclusion of just 500 lawyers and judges nationwide. Super Lawyers is also based in Minnesota, while Lawdragon is based in California and New York.

Sure to add fuel to the fire over the law school ranking debate, the much-maligned U.S. News’ 2009 rankings has 10 schools in its top 30 not included in either Lawdragon or Super Lawyers: Washington University in St. Louis http://law.wustl.edu/, Emory University http://www.law.emory.edu/, Indiana University – Bloomington (Maurer) http://www.law.indiana.edu/, University of Illinois-Urbana-Champaign http://www.law.illinois.edu/prospective-students/ , Notre Dame http://law.nd.edu/, University of Iowa http://www.law.uiowa.edu/, College of William and Maryhttp://law.wm.edu/?svr=www, University of Alabama http://www.law.ua.edu/, University of Washington http://www.law.washington.edu/ and Washington and Lee University http://law.wlu.edu/. http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/rankings  (US News has five schools tied at 30, hence the hefty number.)

Here are the 21 schools on the top 30 lists of all three. They are listed in Lawdragon order:

1. Harvard http://www.law.harvard.edu/index.html

2. Yale http://www.law.yale.edu/

3. Columbia http://www.law.columbia.edu/

4. New York University http://www.law.nyu.edu/index.htm

5. University of Texas http://www.utexas.edu/law/

6. Georgetown http://www.law.georgetown.edu/

7. University of California at Berkeley, Boalt Hall http://www.law.berkeley.edu/

8. University of Chicago http://www.law.uchicago.edu/

9. University of Virginia http://www.law.virginia.edu/html/index.htm

10. University of Michigan http://www.law.umich.edu/Pages/default.aspx

11. UCLA http://www.law.ucla.edu/home/Default.aspx

12. University of Pennsylvania http://www.law.upenn.edu/

13. Stanford http://www.law.stanford.edu/

14. Northwestern http://www.law.northwestern.edu/

15. George Washington University http://www.law.gwu.edu/Pages/Default.aspx

16. Duke http://www.law.duke.edu/

17. Fordham http://law.fordham.edu/

18. Boston University http://www.bu.edu/law/

19. Vanderbilt http://law.vanderbilt.edu/index.aspx

20. Boston College http://www.bc.edu/schools/law/home.html

21. Cornell http://www.lawschool.cornell.edu/