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A Selection of Breyer's Hypotheticals
Court Watch | 2008/03/02 14:18
The nine justices in black robes file into the Supreme Court consumed with thoughts about the great legal issues of the day. Only one of them is likely to ask questions involving raccoons, an unruly son, pet oysters or even the dreaded "tomato children."

When Justice Stephen Breyer leans toward his microphone at the end of the bench, lawyers can expect to be asked almost anything. The 69-year-old Breyer is the court's most frequent practitioner of the hypothetical question, a conjurer of images that are unusual and occasionally bizarre.

"The last time I was up there arguing, it was easier for him to wrap his mind around bicycle pedals," said Carter Phillips. The experienced Supreme Court lawyer recalled an exchange with Breyer during arguments over patents for computer chips.

"He kept shifting the focus over to bicycle pedals and I was trying to live with him in that world," Phillips said. "I was taking the bicycle pedals and putting them on my Stair Master."

The hypothetical is a mainstay of Supreme Court arguments. At their best, such questions help justices address what is bothering them after they have pored over hundreds of pages of dense, often dry legal briefs.

"The point is to try to focus on a matter that is worrying me," Breyer said in an interview with The Associated Press. "Sometimes it's easier to do that with an example."

From the lawyer's perspective, the well-constructed example "helps focus the mind," said Roy Englert, a Supreme Court lawyer who studied antitrust law under Breyer at Harvard Law School.

One recent case involved punishment for repeat criminals under a difficult-to-decipher provision of federal law. The image Breyer called to mind was one to which any parent or sibling could relate.

"Suppose with your own children: 'I told you half an hour ago not to interrupt your sister when she is doing her homework. This is the second time you've done it.' Wouldn't you, with your own child — I would with mine — think that the second time he did it was worse behavior than the first time?" Breyer said. "I just told him not to."

The point was succinct and sweet. "It's a familiar example, your honor," conceded Charles Rothfeld, the lawyer for the recidivist whose case was before the court.

The justices generally have distinct styles in the way they ask questions.

Antonin Scalia makes liberal use of sarcasm. John Paul Stevens begins with an unassuming, "May I ask ...?" Then, Phillips said, "it's a dagger through the heart." Ruth Bader Ginsburg digs deep into the case record and is a stickler for following the rules.

Breyer, said Supreme Court specialist Thomas Goldstein, sometimes comes up with a situation "that is so extreme that it makes you think just about the legal principle because the facts are impossible."

Or, as Breyer said, "An odd example can call particular attention to the point."

Goldstein was on the receiving end of such a question in a dispute last year over the patent for a gas pedal.

"Now to me, I grant you I'm not an expert, but it looks at about the same level as I have a sensor on my garage door at the lower hinge for when the car is coming in and out, and the raccoons are eating it," Breyer said. "So I think of the brainstorm of putting it on the upper hinge, OK? Now I just think that how could I get a patent for that?"

Englert said Breyer is still the law professor he knew 30 years ago. "He had to learn how to keep a bunch of 22-to-25-year-olds entertained and interested," Englert said.



Peloton hedge fund to liquidate and close shop
Legal Business | 2008/03/02 12:38
Peloton Partners LLP, a London-based hedge fund that formerly held nearly $3 billion in assets, is liquidating its two funds and shutting down, the firm told investors on Wednesday, according to two people familiar with the situation.

Peloton last week told investors that it was liquidating its $2 billion ABS Fund after lender banks pulled back on credit. It held out hopes that it could salvage its second fund, the $1.6 billion Multi-Strategy Fund, even though some 40 percent of that fund's assets were invested in the ABS Fund.

Today, however, the fund told investors that the Multi-Strategy Fund is being liquidated in coming days, with the proceeds returned to investors, the source said.

It is unclear at this point what proceeds, if any, investors will get from the liquidation of the two funds, the company told investors.



Filing Shines Light On Expert-Witness Payments
Headline Legal News | 2008/03/02 12:37

Court papers filed recently suggest two partners at one of the nation's most active firms for shareholder lawsuits asked a federal court to approve expenses that were improperly inflated.

The documents were filed in federal court last week as part of a guilty-plea agreement for John Torkelsen, a former expert witness on damages who was used by Milberg Weiss LLP and other plaintiffs class-actions firms in the 1980s and '90s. Mr. Torkelsen agreed to plead guilty to perjury for making false statements in federal court.

In connection with the plea agreement, the government submitted a statement, which Mr. Torkelsen attested to as true, saying that on at least three occasions he submitted inflated fee requests to courts, and that the law firm he worked with knew the requests were inflated. That firm, which the plea papers refer to only as a New York firm, was Milberg Weiss, according to a person familiar with the situation.

Two partners at the law firm now called Coughlin Stoia Geller Rudman & Robbins LLP, which spun off from Milberg Weiss in 2004, were involved in a lawsuit mentioned in the plea statement while they were lawyers at Milberg Weiss. Filed in 1995, the lawsuit alleged that Sunrise Medical Inc., a medical-product manufacturer, fraudulently overstated its income. In 1996, Mr. Torkelsen filed a sworn statement that his firm incurred $420,000 in fees in the case. But according to the plea statement, that amount was inflated by $130,000, a discrepancy that both Mr. Torkelsen and the law firm knew about, according to the plea papers.

In 1996, Coughlin Stoia lawyer Keith Park, then at Milberg Weiss, filed a sworn declaration in the Sunrise case that asked the court to reimburse its expenses for experts. Mr. Torkelsen's firm was one of Milberg's experts in the case. Mr. Park asserted that Milberg Weiss had kept an accurate record of its expenses.

Coughlin Stoia name partner Patrick Coughlin, then a Milberg Weiss lawyer, filed a sworn statement asking the court to approve the settlement and to reimburse Milberg Weiss for its expenses in the case. Mr. Coughlin described Mr. Torkelsen's firm and other experts in the case as "instrumental in developing the evidence and quantifying the damages suffered by the class." The expenses were approved, as was the settlement of the case, for $21 million in damages.

It isn't known whether Messrs. Park or Coughlin knew fees were inflated. They aren't named in Mr. Torkelsen's plea papers. "Any suggestion that anyone here did anything improper in this matter is inaccurate and irresponsible," said Coughlin Stoia in a statement. A firm spokesman declined to provide specifics. Through a spokesman, Messrs. Coughlin and Park declined to comment.

Neither of the lawyers, nor the firm, has been accused of wrongdoing, and prosecutors are unlikely to charge any lawyers in connection with Mr. Torkelsen's criminal conduct, according to people familiar with the investigation

"We are not aware of any partner of Milberg Weiss LLP having knowledge of any of the misconduct detailed in Mr. Torkelsen's plea agreement," Milberg Weiss said in a statement.

The government's investigation of Mr. Torkelsen was part of a broader investigation of Milberg Weiss, which was charged in 2006 with paying improper kickbacks to clients. Milberg Weiss and its senior partner, Melvyn Weiss, are fighting the charges. Three other former Milberg Weiss lawyers, including William Lerach, who moved to what is now the Coughlin firm at the time of the 2004 split, have pleaded guilty.

As part of Mr. Lerach's plea agreement, reached last fall, the government agreed not to prosecute Messrs. Coughlin or Park in connection with various matters, including the work of a "Princeton" damages expert for Milberg Weiss or Coughlin Stoia. Mr. Torkelsen's firm was called Princeton Venture Research Inc. No other lawyers were specifically named in Mr. Lerach's plea agreement.

The government said Mr. Torkelsen's inflated fees were part of a broader scheme to help conceal the true nature of "the New York law firm's" payment arrangement with the expert. A person familiar with the matter identified the firm as Milberg Weiss. Mr. Torkelsen would present himself to courts as an independent expert when in fact he was paid on a contingent basis, with his payment depending on the plaintiffs prevailing in the case, the government said. Securities lawyers say that kind of payment arrangement creates a potential conflict, because it could encourage an expert to exaggerate the extent to which plaintiffs have been harmed.

Plaintiffs lawyers typically must front their expenses, such as expert fees, in contingency-fee suits, and they recoup them if the suit is successful. By paying an expert on a contingent basis, a law firm wouldn't have to take that risk.

Inflating fees in successful cases allowed the New York firm to make up for fees not paid out to Mr. Torkelsen in unsuccessful cases, the plea papers say. The costs of these makeup payments were borne at least in part by class-action plaintiffs, who in some instances paid for work that Mr. Torkelsen didn't perform in their cases.

Mr. Torkelsen is in federal prison after being convicted on unrelated charges. His lawyer didn't respond to a request for comment.

Mr. Torkelsen once was one of the top damages experts in the securities-fraud field, according to securities lawyers. From 1993-96, he billed class-action firms more than $60 million, according to the papers accompanying his plea agreement.

Coughlin Stoia is one of the nation's leading firms in securities class actions, in which shareholders typically blame stock losses on misleading statements by corporate executives. The firm topped the charts in terms of total settlements in such cases in 2006, the most recent year for such data, according to RiskMetrics Group Inc.

Coughlin Stoia has been particularly active of late in the area of securities class actions related to the subprime-lending meltdown. According to a report last month by Navigant Consulting, it has filed more such suits than any law firm -- more than a dozen. Mr. Coughlin is the lead lawyer in the Enron Corp. securities-fraud litigation, in which Coughlin Stoia seeks almost $700 million in fees for itself and other plaintiffs lawyers in the case.



Fulbright & Jaworski L.L.P. Announces 11 New Partners
Press Release | 2008/03/02 12:35
HOUSTON - Fulbright & Jaworski L.L.P. has selected 11 lawyers from within the international firm to join Fulbright's global partnership.

Fulbright's new partners include: Michael Thomas Clark, Antony James Corsi, Denise Webb Glass, Richard D. Hill, Matthew H. Kirtland, Christopher J. Lallo, Michael S. McCoy, Oscar Rey Rodriguez, David A. Rosenzweig, Bryn Alan Sappington and Paul Trahan.

"We are delighted to welcome this outstanding group of lawyers to join us as partners during an exciting time in our firm's history," said Steven B. Pfeiffer, Chair of Fulbright's Executive Committee. "We are strategically adding talented and experienced lawyers to our worldwide offices. Our newest partners have long been a part of our core practice areas, including corporate, IP, energy, health, litigation and tax. They share in our culture of placing the utmost importance on client service and anticipating our clients' needs. Through them, we know the future is bright for our firm and our clients."

AUSTIN:

Paul Trahan is Austin's newest partner. Trahan handles complex commercial litigation in a variety of industries including the technology, construction, motor vehicle, real estate, and health care industries. He has first chair jury trial, bench trial, and arbitration experience. Before joining Fulbright, Trahan was a commercial banker in Houston, serving as a lender in Bank One's Energy Group. He later joined the team at Southwest Bank of Texas (now Amegy), where he served as a Vice President in Commercial Lending. Trahan received his J.D. in 1997 from The University of Texas School of Law. He received his M.B.A. in 1988 from The University of Texas and his B.A. cum laude in 1985 from Texas A&M University.

DALLAS:

Denise Webb Glass is a new partner in Dallas. She has worked in Fulbright's health law section since 1997. She concentrates on operational, business and related regulatory issues affecting the health care services industry. In addition to receiving her J.D., cum laude, from the University of Houston Law Center in 1996 and her B.A., cum laude, from The University of Texas at Austin in 1993, Glass has completed the course work for a Masters of Public Health from the University of Texas Health Science Center in Houston. She was admitted to practice law in Texas in 1996 and is certified in health law by the Texas Board of Legal Specialization.

Oscar Rey Rodriguez also is a new partner in Dallas, where he previously served as senior counsel. As a member of Fulbright's appellate practice group and litigation department, Rodriguez focuses on state and federal appellate and trial litigation. He graduated as his law school class valedictorian from Southern Methodist University's Dedman School of Law in 1993 and went on to work as a judicial clerk to Justice Nathan L. Hecht of the Supreme Court of Texas. Among other honors, Rodriguez holds the distinction of having earned the highest score on the July 1994 Texas Bar Examination. He received his B.B.A., Honors Program Certificate in 1989 from The University of Texas at El Paso, where he received numerous honors. Admitted to practice law in Texas in 1994, Rodriguez is certified by the Texas Board of Legal Specialization in Civil Appellate Law.

Bryn Alan Sappington also joins the partnership in Dallas, where he was a senior associate. Sappington advises publicly and privately held companies in mergers and acquisitions, offerings of securities and other corporate matters. He received his J.D. cum laude in 1998 from the University of Michigan, where he was the over-all runner up in the 1998 Campbell Moot Court competition. Sappington received his B.A. in biology from Baylor University in 1992 and was admitted to practice law in Texas in 1998.

HOUSTON:

Christopher J. Lallo joins the partnership in Fulbright's Houston office, where he had been a senior associate in tax. Lallo has been associated with the firm since 1999. He concentrates on domestic and international tax matters, has broad-based experience in the area of tax planning related to domestic and cross-border mergers and acquisitions, and advises clients on the U.S. federal income tax consequences of various transactions, including merger and acquisitions, tax-free reorganizations, spin-offs and other divestitures, cross-border investments, and financing structures. Lallo received his J.D. in 1999 with honors from The University of Texas School of Law, where he was a member of the Order of the Coif and an editor of the Texas International Law Journal. He received his B.B.A. in accounting, magna cum laude, from Texas A&M University in 1996.

Michael S. McCoy also is a new partner in Houston. McCoy handles intellectual property and technology-based litigation. Additionally, he counsels a varied clientele about securing, managing and maximizing profit from intellectual property, in addition to identifying and protecting intellectual property assets through filing and prosecuting patent, copyright and trademark applications. McCoy received his J.D. from the University of Houston Law Center and his B.S. in aerospace engineering in 1989 from Texas A&M University. McCoy is registered to practice before the U.S. Patent and Trademark Office.

LOS ANGELES:

Michael Thomas Clark joins Fulbright's partnership in the Los Angeles office, where he has been a senior associate. He handles corporate and securities law matters with an emphasis on mergers and acquisitions. He received his J.D. in 1998 from George Mason University School of Law, where he was Editor-in-Chief of The Journal of International Legal Studies. He received his B.A. in 1994 from The Master's College in Santa Clarita, California. Clark was admitted to practice law in California in 1998.

LONDON:

Antony James Corsi is a new partner in Fulbright's London office, where he has been a senior associate since 2006. Corsi handles dispute resolution - primarily complex commercial litigation, alternative dispute resolution, risk assessment and internal and regulatory investigations. His international dispute resolution experience involves diverse locations, including North America, the Caribbean, Europe, the Middle East, Africa and Asia. As a member of the London Solicitors Litigation Association and the Solicitors Association of Higher Court Advocates, Corsi is a qualified solicitor advocate with rights of audience in the civil High Court. Corsi received his LLB with honours from the University of Bristol in 1994 and completed his legal practice course at the College of Law in 1995. He was admitted as a solicitor in England and Wales in 1997.

Richard Hill joins the partnership in Fulbright's London office, where he had been a senior associate since 2005. He practices in Fulbright's international arbitration group, and handles commercial litigation and alternative dispute resolution. Hill has been involved in major international arbitrations in England, Ireland, France, Switzerland, Italy, the Czech Republic, the United States, Mexico, Hong Kong, Singapore and China, and provided counsel under the ICC, ICDR, ICSID, LCIA and UNCITRAL rules. Additionally, Hill has extensive litigation experience in the English High Court, Court of Appeal, House of Lords and Privy Council, and in the courts of certain commonwealth jurisdictions. He is also experienced in mediation and other forms of ADR. He is co-editor of the Leading Arbitrators' Guide to International Arbitration (Juris, 2003) a new edition scheduled to be published in March 2008. Hill received a post-graduate diploma in law from City University, London, in 1995, and graduated with honours from Cambridge University in 1993. He was admitted as a barrister in England and Wales in 1996, receiving the Prince of Wales Award, and as a solicitor-advocate in 1999.

Fulbright & Jaworski L.L.P. Media Relations Manager Pam Easton, 713-651-8480 peaston@fulbright.com



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