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Litigation Daily
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Jenna Greene
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Good morning! It’s March 8 and I’m Lit Daily editor JennaGreene, here with your Daily Dicta.Reach me at jgreene@alm.com or find me on Twitter @jgreenejenna.
We had some stellar nominations for Litigator of the Week.
Our runners up include Sean Hecker of Kaplan Hecker & Fink, who scored a huge win on behalf of Robert Bogucki. A former senior foreign exchange trader at Barclays, Bogucki was charged with criminal market manipulation for a 2011 transaction. But mid-way through what was supposed to be a two-week trial, U.S. District Judge Charles Breyer of the Northern District of California ruled from the bench and acquitted Bogucki, citing a “massive due process problem.”
Wow.
We were also impressed with Covington & Burling’s Marney Cheek, David Pinsky and Erin Thomas, who secured a significant victory on behalf of Ukraine’s state-owned oil and gas company, NJSC Naftogaz, in an international arbitration against the Russian Federation. A tribunal in The Hague found that Russia unlawfully expropriated Naftogaz’s assets in Crimea, which have been valued at $5 billion. There will be another phase of the proceeding to determine how much compensation Naftogaz is owed.
John Libby of Manatt, Phelps & Phillips and co-counsel from The Lawyers’ Committee for Civil Rights Under Law and Public Counsel led a successful challenge in California on behalf of the city of San Jose and a nonprofit immigration organization to the 2020 Census citizenship question. U.S. District Judge Richard Seeborg of the Northern District of California became the second judge to rule that adding the census question was arbitrary and capricious—and the first to side with plaintiffs on constitutional claims.
Bob Gunther and Chris Noyes of Wilmer Cutler Pickering Hale and Dorr won a jury verdict in the Southern District of New York for luxury watchmaker Omega SA and its parent company Swatch. The company sued a landlord in Manhattan for contributory trademark infringement, alleging that it allowed its building to be used for years as a haven for counterfeiting activity. What made the win extra-impressive is that Swatch’s prior counsel was found to have filed false declarations in opposition to a motion for summary judgment and the Wilmer team had to clean up the mess.
Finally, Mark Perry of Gibson, Dunn & Crutcher prevailed at the U.S. Supreme Court on behalf of Rimini Street in a dispute with Oracle over a copyright statute that permits an award of “full costs.”
But our winner this week is McGuireWoods partner George Terwilliger III for a win that the Washington Post described as a “stunning reversal for the government” and the Chicago Tribune called “virtually unheard of in a high-profile corruption case.”
Terwilliger represented Aaron Schock, a former Republican congressman from Illinois who was indicted in 2016 on 24 felony counts including wire fraud, mail fraud, theft of government funds and filing false tax returns. (You might recall him as the congressman who lavishly decorated his office a la “Downtown Abbey.”)
On Wednesday, federal prosecutors in Chicago offered a deferred prosecution agreement. If Schock pays his back taxes—about $40,000, according to CNN—and reimburses his campaign $68,000, the feds will drop all criminal charges.
How the heck did that happen?
Terwilliger discussed the case with Lit Daily.
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Litigator of the Week: A Shocking Win for Terwilliger in Ex-Congressman’s Corruption Case
Lit Daily: Who is your client and what was at stake?
George Terwilliger: Our client is former U.S. Rep. Aaron Schock, whose liberty was at stake. In addition, unfounded charges rob a person of their reputation. As former Labor Secretary in the Reagan Administration Ray Donovan famously said after winning a hard fought battle against criminal charges: “What office do I go to to get my reputation back?”
When and how did you come to be involved in the case?
Another member of Congress referred Aaron to me in March 2015. Aaron called me to talk about the situation, we met over the next couple of days and he decided McGuireWoods was the best firm to represent him.
How broad were the government’s original allegations? What sorts of conduct were they zeroing in on?
One of the most fundamental challenges in the case was that the government’s criminal investigation was not focused at all. It was an unjustifiable investigation of a person in search of a crime.
The allegations included challenging reimbursements by the House of Representatives for official expenses based on prosecutors’ interpretations of ambiguous House rules that are the exclusive authority under the Constitution for what is, in fact, reimbursable and charging as a false statement an expenditure report to the FEC that categorized a vehicle purchase as a “transportation expense.”
Mr. Schock’s agreement with the government to resolve the case explicitly acknowledges that as a result of not keeping adequate documentation of miles driven subject to reimbursement, for example, that resulted in him being reimbursed for more miles than were actually driven.
What were the overarching themes of your defense?
The dominant theme is that there is a difference between mistakes and crimes. Juries across the country are instructed every day on criminal intent and told that things that occur because of mistakes, inadvertence or accident are not criminal. Objective review of the relevant conduct in this case put it in that category.
Who were the members of your team and how did you work together?
Christina Egan, Bob Bittman and Ben Hatch, all former prosecutors, were the government investigations & white collar litigation partners on the team with me. Associates Nate Pittman and Rebecca Gantt also did truly outstanding work, especially on appellate matters in the 7th Circuit and the U.S. Supreme Court.
The team had to analyze thousands of transactions and millions of pages of records in order that we master the relevant facts in a wide-ranging investigation. Then we had to take that information and build a complete understanding of a factual narrative and legal analysis of the matters claimed to be possible violations of law. Finally, we had to delve deeply into what and how the government investigated the case to ferret out facts supporting legal challenges to various aspects of the case.
In your motion to dismiss for prosecutorial misconduct filed on August 1, 2017, you accused the government of asking “inappropriate and highly invasive questions about Mr. Schock’s sexual orientation and relationships.” Did you have any hesitation about making this argument--which was then widely reported by the press?
We considered carefully including that in our filings. We included them because it was relevant to an objective assessment of the government’s conduct in the grand jury investigation. That line of questioning was one part of a wide array of questioned conduct on the part of the government.
From the beginning, this was a high-profile case with intense media interest. What was your strategy for dealing with that?
To be simple and straightforward with the media, fashioning our message with the facts and relevant law. On the last day, we said exactly what we said on the first day: yes, mistakes on financial matters were made, but those mistakes were not crimes.
We also realized from the start that we needed top professional media help, and we found it right in our own house. Mark Hubbard, a senior vice president with the firm’s public affairs subsidiary, McGuireWoods Consulting, provided excellent help working with Aaron and the legal team to shape the coverage.
Your client said of assistant U.S. Attorney Timothy Bass, who originally led the prosecution, “I do feel like I’ve been wronged in this process by a prosecutor who saw me as his ticket to stardom and who was allowed to go unchecked for many years.” What’s your take on this?
My take is that the facts of the conduct of one prosecutor in particular speak for themselves. I leave it to others to make judgments about that.
Last summer, the presiding federal judge, Colin Bruce in Springfield, was removed from hearing all criminal cases for alleged improper contact with the prosecutor’s office in another case. Schock’s case was re-assigned to Judge Matthew Kennelly in Chicago. Not long after, the prosecution team was also replaced. What impact did this have? Was it a turning point?
It was definitely a turning point because the prosecutors in Chicago told Judge Kennelly that they were going to take a fresh look at the case. Over the course of several months they did just that. They should be commended for doing a thorough review and for having the courage to use their own best judgment as to what was an appropriate resolution.
The Washington Post called the government’s decision to dismiss all charges a “stunning reversal.” What were some of the keys to your ability to resolve the case on such favorable terms?
We knew what the facts of the case were and we knew that under the law the allegations in the indictment were either very weak or non-existent.
Most importantly, the evidence did not support establishing criminal intent. Staying focused on that as well as attacking the result on the government’s unforced errors on constitutional issues added up to demonstrating a case with little merit and a lot of problems for the government.
What do you hope will be the legacy of this case?
I truly hope that the government will look closely at how this case proceeded from investigation forward and recognize the need for better supervision of the prosecution function and, where needed, a process for meaningful reviews of field cases at DOJ headquarters.
Using weak cases to bring splashy indictments is a formula for undermining the credibility of law enforcement. I have said repeatedly that the vast majority of federal prosecutors do important work to the highest standards of conduct and I admire them for doing so. But where there is a deviation from those standards and the public sees untoward conduct, it diminishes respect for both the prosecution function and the rule of law.
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What I’m Reading
Michael Cohen Sues Trump in State Court Seeking Recovery of Legal Fees and Costs
Cohen claims that, as of Jan. 25, he had incurred more than $1.9 million in costs for his work for the Trump Organization that was supposed to be covered by an indemnification agreement with the company, and said that he continues to incur legal fees related to various ongoing cases in state and federal courts, as well as preparation for testimony before two congressional committees.
Manafort Gets 47 Months, But Second Sentencing Awaits
The term falls more than 15 years short of the minimum recommended by the special counsel’s office—but he faces a separate sentencing in Washington on charges related to his past lobbying work for the pro-Russian government of former Ukrainian President Viktor Yanukovych.
Huawei Picks Jones Day, Morgan Lewis in Challenge to US Defense Law
Crazy coincidence, the Chinese tech juggernaut has turned to two U.S. law firms with ties to the Trump administration, Jones Day and Morgan, Lewis & Bockius, in its lawsuit against the government and several Trump cabinet members.
Yet Another Jones Day Alum Snags Sixth Circuit Seat
Eric E. Murphy is the second Jones Day alum to be confirmed this week. (I’m starting to get the feeling that Jones Day and Kirkland & Ellis veterans are now running the country.)
Labor Judge Warns Lawyers About 'Tone' in Oracle Discrimination Case
“I remind the government particularly that, ‘counsel for the government has an interest only in the law being observed, not in victory or defeat in any particular litigation,’” the Labor Department ALJ wrote, adding "Going forward, I caution all counsel to be cognizant of the tone and manner in which they pursue their arguments."
Trio of Lawyers Sue Over 'Coerced' Mandatory Texas Bar Membership
The object to the bar’s “diversity” initiatives “based on attorneys’ race, gender, and sexual orientation” and the promotion of programs seeking to “prevent the deportation of individuals who entered the United States without authorization through the southern border.”
In case you missed it…
Daily Dicta: ACTL Adds 73 New Members—Here’s Who Made the Grade
The newest members of the elite group include some familiar names.
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