LAWYERSCHILE EL MUNDO INTERNACIONAL DEL ABOGADO

Rodrigo González Fernández y un grupo de egresados de la Facultad de Derecho de la Universidad la Republica en Chile ha decidido poner al alcance de todo el mundo de la profesion legal importantes materias en Ingles para ir practicando el trabajo en materia de Tratados internacionales y que nuestra profesión estará en primera linea. Invitamos a todos a opinar, debatir, participar activamente.Es el primer blog legal en inglés de latinoamerica.

Tuesday, September 30, 2008

Mukasey Appoints Special Prosecutor to Investigate U.S. Attorney Firings

Joe Palazzolo
Legal Times
September 30, 2008

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U.S. Attorney General Michael Mukasey.
Image: Diego M. Radzinschi/Legal Times

Attorney General Michael Mukasey has appointed a special prosecutor to investigate the firings of several U.S. Attorneys in 2006, as a report released Monday by Justice Department watchdogs found "significant evidence" that several of the attorneys fired in 2006 were let go for partisan or political reasons (pdf). The report recommended the appointment of a prosecutor with subpoena powers to continue the investigation.

Top department officials had said the firings were performance-related, but the report, by Justice Department Inspector General Glenn Fine and Office of Professional Responsibility Director H. Marshall Jarrett, found otherwise. It also describes the department's top two officials at the time, Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty, as "remarkably unengaged" in the firing process and cites both for making "inconsistent, misleading and inaccurate" public statements about the firings.

The report found that the White House was involved in three of nine firings, though it could not determine to what extent. Investigators say they were stymied by the lack of cooperation from key witnesses, including former White House adviser Karl Rove and White House counsel Harriet Miers. Both are subjects of congressional subpoenas by committees investigating the matter. The report found the Justice Department "had reasonable concerns" about only two of the fired U.S. Attorneys.

On Tuesday, Gonzales' lawyer, George Terwilliger III, a partner at White & Case, said the report "makes clear that Judge Gonzales engaged in no wrongful or improper conduct while recognizing, as he has acknowledged many times, that the process for evaluating U.S. attorney performance in this instance was flawed." Gonzales released a statement saying that he and his family "are glad to have the investigation of my conduct in this matter behind us and we look forward to moving on to new challenges."

But it isn't clear, especially with the appointment of a special prosecutor, that Gonzales can leave the investigation behind.

Mukasey announced the appointment of career prosecutor Nora Dannehy to investigate the firings as the report was released Monday. Dannehy, currently the acting U.S. Attorney for the District of Connecticut and a veteran of the office's white-collar and public-corruption section, will be able to subpoena witnesses to help her investigation, something the authors of the report couldn't do.

The report specifically recommends that Dannehy investigate whether Justice Department officials made false statements to Congress or to investigators or violated other federal criminal statutes, including obstruction of justice or wire fraud.

The report says Gonzales and McNulty deferred to D. Kyle Sampson, Gonzales' former chief of staff, in the firings, despite their responsibility to oversee the department. The report describes Sampson as the architect of the firing plan, and cites him for inappropriately advocating the use of internal appointments to bypass the Senate confirmation process for U.S. Attorneys.

"We believe that the primary responsibility for these serious failures rest with senior department leaders -- Gonzales and McNulty -- who abdicated their responsibility to adequately oversee the process," the report says.

In the most extreme example of partisan influence cited in the report, David Iglesias, the former U.S. Attorney in New Mexico, was fired after Sen. Pete Domenici, Rep. Heather Wilson and other New Mexico Republicans complained of his refusal to prosecute a local Democrat or and voter fraud cases on the eve of the 2006 elections.

Another U.S. Attorney, Bud Cummins of Arkansas, was sacked because the White House wanted to give the job to its then-director of political affairs, Tim Griffin.

Talk of firing the U.S. Attorneys began shortly after Bush's re-election campaign in 2004, the report says. At different points, Miers, and later White House adviser Karl Rove, asked about firing all 93 U.S. Attorneys, but Sampson argued via e-mail that senators would likely resist the firing of U.S. Attorneys they had recommended for appointment in their home states, and it would draw too much attention.

Instead, Sampson proposed firing a few of the "underperforming" U.S. Attorneys, and after Gonzales was confirmed as attorney general and Miers replaced him as White House counsel in early 2005, Sampson began cobbling together the first of several lists.

Some of those named in the report, including Sampson, say they have cooperated with the investigation. Sampson is now a partner at Hunton & Williams.

Sampson's lawyer, Bradford Berenson, a partner at Sidley Austin, said: "It is mystifying and disappointing that the Inspector General chose to impugn Mr. Sampson's candor and integrity when, virtually alone among significant participants in this matter, Mr. Sampson at all times cooperated fully and voluntarily with any and all investigators, without preconditions, and provided his best, most honest and complete recollection of these events. He has behaved with honor and dignity throughout this difficult episode and has never attempted to shirk his responsibility for problems in the U.S. Attorney firings."

Gonzales, who has not held a full-time job since resigning, took work in June as an assistant to a special master on a patent casein Texas. McNulty, who resigned in May 2007, joined Baker & McKenzie's Washington office.

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Lawyer Loses Ladies' Night Lawsuit

Lawyer Loses Ladies' Night Lawsuit

LEGAL BLOG WATCH

Someone should buy attorney Roy Den Hollander a drink. No doubt he needs one, after a federal judge threw out his lawsuit seeking to put a cork in ladies' nights at New York nightclubs. The self-professed anti-feminist's complaint alleged that his constitutional rights to equal protection under the law were violated by nightclubs that charge higher admission prices for men than women. But U.S. District Judge Miriam Goldman Cedarbaum wasn't buying that argument. Nightclubs are private establishments that can charge whatever they want, she ruled, dismissing his complaint.

Hollander dismissed the dismissal, calling the judge a feminist and describing her ruling as consistent with the anti-male discrimination embedded in many American institutions. "This lawsuit would have put an end to guys financially subsidizing girls to party at nightclubs," he told the New York Daily News. No doubt, had he succeeded, men everywhere would have owed him a debt of gratitude. As the College on the Record blog commented, "What were these clubs thinking trying to lure hot women into their venues for the benefit of their male customers?"

Meanwhile, Hollander's crusade against women of the world continues on other fronts. In August, he filed a federal lawsuit against Columbia University seeking to shut down its women's studies courses. His lawsuit seeks class action status and alleges that Columbia is using government aid to preach a "religionist belief system called feminism." His complaint calls the women's studies program "a bastion of bigotry against men" that "demonizes men and exalts women in order to justify discrimination against men based on collective guilt." In another lawsuit, he challenges the constitutionality of the federal Violence Against Women Act, alleging that the law "was created by feminist organizations to provide alien wives alleging abuse a fast track to permanent residency by violating the U.S. Constitutional rights of citizen husbands."

Hollander's Web site implores, "Now is the time for all good men to fight for their rights before they have no rights left." Speaking as just one member of the downtrodden but overpaid male gender, I think Hollander has it exactly wrong.

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Posted by Robert J. Ambrogi on September 30

IBM Seeks Patent on Absence of Patents

FROM LEGAL BLOG WATCH

IBM Seeks Patent on Absence of Patents

IBM, it appears, abhors an IP vacuum. By way of news-for-nerds blog Slashdot comes word that IBM is seeking to patent a tool for identifying areas within industries in which little patenting activity is taking place -- thus allowing businesses to step in and fill that IP void. Filed last week with the U.S. Patent and Trademark Office, IBM's application seeks to patent Methodologies and Analytics Tools for Identifying White Space Opportunities in a Given Industry. "White space," as the application explains, "is a term generally used to designate one or more technical fields in which little or no IP may exist."

The need for the invention, the application says, stems from the fact that existing processes for identifying white space -- such as Internet searches -- are labor intensive, time consuming and largely ineffective. Yet rooting out this intelligence could be "critical to the competitive advantage of a business entity," which could use this knowledge "to maximize the value of its IP" within that fallow field of patenting. So how would IBM's invention address this? The abstract provides this description:

A method for analyzing predefined subject matter in a patent database being for use with a set of target patents, each target patent related to the predefined subject matter, the method comprising: creating a feature space based on frequently occurring terms found in the set of target patents; creating a partition taxonomy based on a clustered configuration of the feature space; editing the partition taxonomy using domain expertise to produce an edited partition taxonomy; creating a classification taxonomy based on structured features present in the edited partition taxonomy; creating a contingency table by comparing the edited partition taxonomy and the classification taxonomy to provide entries in the contingency table; and identifying all significant relationships in the contingency table to help determine the presence of any white space.

If I understand it in the least bit -- which I readily admit I may not -- the patent would cover an "intelligent search" tool that would analyze and extract text from within one set of documents or data (such as patents) and look for similar concepts within a second set of documents or data. The result would be to identify concepts and key words that occur with less frequency in the second data set, suggesting the existence of white space. As Slashdot points out, this patent comes from a company that in 2006 made a public commitment to pursuing greater clarity and transparency in patents.

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Posted by Robert J. Ambrogi on September 30

Friday, September 26, 2008

Government Seizes WaMu and Sells Some Assets

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By ERIC DASH and ANDREW ROSS SORKIN

Published: September 25, 2008

Washington Mutual, the giant lender that came to symbolize the excesses of the mortgage boom, was seized by federal regulators on Thursday night, in what is by far the largest bank failure in American history.

Times Topics: Washington Mutual Inc.

Times Topics: JPMorgan Chase & Company

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Regulators simultaneously brokered an emergency sale of virtually all of Washington Mutual, the nation's largest savings and loan, to JPMorgan Chase for $1.9 billion, averting another potentially huge taxpayer bill for the rescue of a failing institution.

The move came as lawmakers reached a stalemate over the passage of a $700 billion bailout fund designed to help ailing banks, and removed one of America's most troubled banks from the financial landscape.

Customers of WaMu, based in Seattle, are unlikely to be affected, although shareholders and some bondholders will be wiped out. WaMu account holders are guaranteed by the Federal Deposit Insurance Corporation up to $100,000, and additional deposits will be backed by JPMorgan Chase.

By taking on all of WaMu's troubled mortgages and credit card loans, JPMorgan Chase will absorb at least $31 billion in losses that would normally have fallen to the F.D.I.C.

JPMorgan Chase, which acquired Bear Stearns only six months ago in another shotgun deal brokered by the government, is to take control Friday of all of WaMu's deposits and bank branches, creating a nationwide retail franchise that rivals only Bank of America. But JPMorgan will also take on Washington Mutual's big portfolio of troubled assets, and plans to shut down at least 10 percent of the combined company's 5,400 branches in markets like New York and Chicago, where they compete. The bank also plans to raise an additional $8 billion by issuing common stock on Friday to pay for the deal.

Washington Mutual, with $307 billion in assets, is by far the biggest bank failure in history, eclipsing the 1984 failure of Continental Illinois National Bank and Trust in Chicago, an event that presaged the savings and loan crisis. IndyMac, which was seized by regulators in July, was one-tenth the size of WaMu.

But fears of the fallout from the government takeover of a big bank were balanced with the removal of one of the largest remaining clouds looming over the banking industry.

"This institution was a big question mark about the health of the deposit fund," Sheila C. Bair, the chairwoman of the F.D.I.C., said on a conference call Thursday. "It was unique in its size and exposure to higher risk mortgages and the distressed housing market. This is the big one that everybody was worried about." She said that the bank's rapidly deteriorating condition prompted regulators to seize it Thursday, and not on a Friday as is typical for bank closures.

For weeks, the Federal Reserve and the Treasury Department were nervous about the fate of WaMu, among the worst-hit by the housing crisis, and pressed hard for the bank to sell itself. Washington Mutual publicly insisted that it could remain independent, but the giant thrift had quietly hired Goldman Sachs about two weeks ago to identify potential bidders. But nobody could make the numbers work and several deadlines passed without anyone submitting a bid.

But as panic gripped financial markets last week after the collapse of Lehman Brothers, WaMu customers started withdrawing their deposits. The government then stepped up its efforts, at points going behind WaMu's back to work privately with four potential bidders on a deal. On Wednesday afternoon, the government solicited formal written bids. On Thursday morning, regulators notified James Dimon, chairman and chief executive of JPMorgan Chase, that he was the likely winner.

"We are building a company," Mr. Dimon said in a brief interview. "We are kind of lucky to have this opportunity to do this. We always had our eye on it."

But the seizure and the deal with JPMorgan came as a shock to Washington Mutual's board, which was kept completely in the dark: the company's new chief executive, Alan H. Fishman, was in midair, flying from New York to Seattle at the time the deal was finally brokered, according to people briefed on the situation. Mr. Fishman, who has been on the job for less than three weeks, is eligible for $11.6 million in cash severance and will get to keep his $7.5 million signing bonus, according to an analysis by James F. Reda and Associates. WaMu was not immediately available for comment.

The government has dealt with troubled financial institutions differently. Lehman Brothers and Washington Mutual, which were less entangled with the rest of the financial system, were allowed to collapse. But the government took emergency measures to stabilize Goldman Sachs, Morgan Stanley and the American International Group, the insurance giant.

Federal regulators had been trying to broker a deal for Washington Mutual because a takeover by the F.D.I.C. would have dealt a crushing blow to the federal government's deposit insurance fund. The fund, which stood at $45.2 billion at the end of June, has been severely depleted after suffering a loss from the sudden collapse of IndyMac Bank. Analysts say that a failure of Washington Mutual would have cost the fund as much as $30 billion or more.

The deal will end WaMu's 119-year run as an independent company and give JPMorgan Chase branches in California and other markets where it does not have a big presence.

Until recently, Washington Mutual was one of Wall Street's strongest performers. It reaped big profits quarter after quarter as its then chief executive, Kerry K. Killinger, enlarged its presence by buying banks on both coasts and ramping up mortgage lending.

His goal was to transform what was once a sleepy Seattle thrift into the "Wal-Mart of Banking," which would cater to lower- and middle-class consumers that other banks deemed too risky. It offered complex mortgages and credit cards whose terms made it easy for the least creditworthy borrowers to get financing, a strategy the bank extended in big cities, including Chicago, New York and Los Angeles. With this grand plan, Mr. Killinger built Washington Mutual into the sixth-largest bank in the United States.

But underneath the hood, the bank's machinery was failing.

Then the housing market began to crumble. Like so many other financial institutions, the bank tried to hedge its mortgage bets — but did so poorly. It retrenched on its branch-building ambitions. But none of that was enough to deflate ballooning losses on mortgage loans, nor defuse ticking time bombs like interest-only and pay-option amortization products that had reeled in bottom-grade borrowers.

With rising mortgage payments and higher gas and food bills, WaMu's losses in its big credit card loan portfolio also surged.

By then, however, WaMu's troubles had set off alarm bells on Wall Street, which ground its share price down daily.

With options narrowing, WaMu frantically reached out to several banks and big private equity firms, including the Carlyle Group and the Blackstone Group.

In March, JPMorgan Chase saw an opportunity and urged WaMu in a letter to consider a quick deal. On the same weekend that Mr. Dimon negotiated his daring takeover of Bear Stearns, he secretly dispatched members of his team to Seattle to meet with WaMu executives. When JPMorgan Chase offered WaMu $8 a share, largely in stock. But Mr. Killinger balked at the deal.

In April, David Bonderman, a founder of the TPG private equity firm, and a group of institutional investors agreed to infuse $7 billion of capital into the bank. Mr. Killinger kept his job, and Mr. Bonderman, who had served as a WaMu director from 1997 to 2002, returned with a board seat and 176 million WaMu shares priced at about $8.75 each — steep discount of more than 25 percent to that day's share price.

While the deal was sweet for Mr. Bonderman, it eroded the value for existing shareholders, enraging them. They moved on June 2 to strip Mr. Killinger of his chairmanship. Mr. Bonderman, meanwhile, watched his golden bet turn to dross. In a statement Thursday, TPG said: "Obviously, we are dissatisfied with the loss to our partners from our investment in Washington Mutual."

Talks Implode During a Day of Chaos; Fate of Bailout Plan Remains Unresolved

Mitch Dumke/Reuters

Representative Barney Frank, the chairman of the House Financial Services Committee, left, and Senator Christopher J. Dodd, chairman of the Senate banking committee, spoke to reporters.

By DAVID M. HERSZENHORN, CARL HULSE and SHERYL GAY STOLBERG

Published: September 25, 2008

News Analysis: McCain Leaps Into a Thicket (September 26, 2008)

Political Memo: In a Time of Crisis, Is Obama Too Cool? (September 26, 2008)

Checkpoint: Taking On the Mortgage Giants (September 26, 2008)

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Why It's Not Socialism

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This article was reported by David M. Herszenhorn, Carl Hulse andSheryl Gay Stolberg and written by Ms. Stolberg.

WASHINGTON — The day began with an agreement that Washington hoped would end the financial crisis that has gripped the nation. It dissolved into a verbal brawl in the Cabinet Room of the White House, urgent warnings from the president and pleas from a Treasury secretary who knelt before the House speaker and appealed for her support.

"If money isn't loosened up, this sucker could go down," President Bush declared Thursday as he watched the $700 billion bailout package fall apart before his eyes, according to one person in the room.

It was an implosion that spilled out from behind closed doors into public view in a way rarely seen in Washington.

By 10:30 p.m., after another round of talks, Congressional negotiators gave up for the night and said they would try again on Friday. Left uncertain was the fate of the bailout, which the White House says is urgently needed to fix broken financial and credit markets, as well as whether the first presidential debate would go forward as planned Friday night in Mississippi.

When Congressional leaders and Senators John McCain and Barack Obama, the two major party presidential candidates, trooped to the White House on Thursday afternoon, most signs pointed toward a bipartisan agreement on a grand compromise that could be accepted by all sides and signed into law by the weekend. It was intended to pump billions of dollars into the financial system, restoring liquidity and keeping credit flowing to businesses and consumers.

"We're in a serious economic crisis," Mr. Bush told reporters as the meeting began shortly before 4 p.m. in the Cabinet Room, adding, "My hope is we can reach an agreement very shortly."

But once the doors closed, the smooth-talking House Republican leader, John A. Boehnerof Ohio, surprised many in the room by declaring that his caucus could not support the plan to allow the government to buy distressed mortgage assets from ailing financial companies.

Mr. Boehner pressed an alternative that involved a smaller role for the government, and Mr. McCain, whose support of the deal is critical if fellow Republicans are to sign on, declined to take a stand.

The talks broke up in angry recriminations, according to accounts provided by a participant and others who were briefed on the session, and were followed by dueling news conferences and interviews rife with partisan finger-pointing.

Friday morning, on CBS's "The Early Show," Representative Barney Frank of Massachusetts, the lead Democratic negotiator, said the bailout had been derailed by internal Republican politics.

"I didn't know I was going to be the referee for an internal G.O.P. ideological civil war," Mr. Frank said, according to The A.P.Thursday, in the Roosevelt Room after the session, the Treasury secretary, Henry M. Paulson Jr., literally bent down on one knee as he pleaded with Nancy Pelosi, the House Speaker, not to "blow it up" by withdrawing her party's support for the package over what Ms. Pelosi derided as a Republican betrayal.

"I didn't know you were Catholic," Ms. Pelosi said, a wry reference to Mr. Paulson's kneeling, according to someone who observed the exchange. She went on: "It's not me blowing this up, it's the Republicans."

Mr. Paulson sighed. "I know. I know."

It was the very outcome the White House had said it intended to avoid, with partisan presidential politics appearing to trample what had been exceedingly delicate Congressional negotiations.

Senator Christopher J. Dodd, Democrat of Connecticut and chairman of the Senate banking committee, denounced the session as "a rescue plan for John McCain," and proclaimed it a waste of precious hours that could have been spent negotiating.

But a top aide to Mr. Boehner said it was Democrats who had done the political posturing. The aide, Kevin Smith, said Republicans revolted, in part, because they were chafing at what they saw as an attempt by Democrats to jam through an agreement on the bailout early Thursday and deny Mr. McCain an opportunity to participate in the agreement.

The day seemed to hold promise as it began. On Wednesday night, Mr. Bush had delivered a prime-time televised address to the nation, warning that "our country could experience a long and painful recession" if lawmakers did not act quickly to pass a huge Wall Street bailout plan.

After spending Thursday morning behind closed doors, senior lawmakers from both parties emerged shortly before 1 p.m. in the ornate painted corridors on the first floor of the Capitol to herald their agreement on the broad outlines of a deal.

They said the legislation, which would authorize unprecedented government intervention to buy distressed debt from private firms, would include limits on pay packages for executives of some firms that seek assistance and a mechanism for the government to take an equity stake in some of the firms, so taxpayers have a chance to profit if the bailout plan works.

"I now expect we will indeed have a plan that can pass the House, pass the Senate, be signed by the president, and bring a sense of certainty to this crisis that is still roiling in the markets," said Robert F. Bennett, Republican of Utah, a member of the banking committee.

Elisabeth Bumiller contributed reporting.