Early today the US Supreme Court requested that the Solicitor General file a brief in the case of ORTHO BIOTECH PRODUCTS, L.P. V. UNITED STATES, EX REL. DUXBURY.

A copy of the order is available here.

This case, as outlined in todays Wall Street Journal law column, and also discussed on The SCOTUS Blog, is about the desire by Johnson & Johnson to get clarity on some technical questions related to the False Claims Act, or Qui Tam law, and hopefully spike one of the largest whistleblower cases in US history if it proceeds ahead to trial.

(Full disclosure, two of the principals of The Legal Broadcast Network, Attorney Jan Schlichtmann and Mark Wahlstrom are involved in this case as lead counsel and consultant to the litigation group.)

This case, which has been previously covered by The Wall Street Journal, and was thought to be dead thanks to a lower court ruling, was brought back to life by the US Court of Appeal in August and is now being aggressively argued on both sides as the relators in the case continue to press for trial so the full extent of the alleged scheme of rebates, kickbacks and illegal payments can be exposed, accounted for and the taxpayers reimbursed for the billions in alleged over charges.

On today's Speaking of Justice, lead attorney Jan Schlichtmann joins Scott Drake to discuss today's ruling by the Supreme Court, the implications on the case and the next steps for the whistleblowers as they continue to press the US government to join this case. Estimates of the over charges are between $3 billion and $10 billion and you would think with healthcare and government control of expenses being a hot political item, that the Obama Justice Department will be carefully watched as to how they approach this potentially huge case.

AP – This undated image provided by James Ray International, shows James Arthur Ray.FLAGSTAFF, Ariz. – Motivational speaker James Arthur Ray was arrested Wednesday afternoon on three counts of manslaughter for deaths that happened after a sweat lodge ceremony he led in northern Arizona last year. Ray was taken into custody on an indictment at his attorney's office in Prescott, and was to be booked into the Yavapai County jail in Camp Verde, sheriff's officials said. His bond was set at $5 million.

Ray's attorneys said Wednesday he surrendered to authorities but that the charges were unjust and they were confident he would be exonerated in court.

"This was a terrible accident, but it was an accident, not a criminal act," Ray attorney Luis Li said. "James Ray cooperated at every step of the way, providing information and witnesses to the authorities showing that no one could have foreseen this accident."

The Oct. 8 sweat lodge ceremony was intended to be the highlight of Ray's five-day "Spiritual Warrior" event at a retreat he rented just outside Sedona. He told participants, who paid more than $9,000 each to attend, that it would be one of the most intense experiences of their lives.

About halfway through the two-hour ceremony, some began feeling ill, vomiting and collapsing inside the 415-square-foot structure. Despite that, Ray urged participants to push past their physical weaknesses and chided those who wanted to leave, authorities and participants have said.

Two people — Kirby Brown, 38, of Westtown, N.Y., and James Shore, 40, of Milwaukee — passed out inside the sweat lodge and died that night at a hospital. Liz Neuman, 49, of Prior Lake, Minn., slipped into a coma and died a week later. Eighteen others were hospitalized.

Neuman's daughter, Andrea Puckett, said Wednesday she was pleased with Ray's arrest and the effort authorities put into the investigation.

"It helps that he is, for now, being stopped from doing what he's doing, from harming anyone else, and that's the biggest relief for me and my family right now," said Puckett, of Bloomington, Minn.

Participant Beverley Bunn previously told The Associated Press that Ray did nothing to help the sick during the October sweat lodge ceremony. Following Ray's arrest Wednesday, she said she had "many tears of joy."

"It's kind of a strange feeling," said Bunn, who was not among the hospitalized. "We've been waiting a long time."

Ray's attorneys have said he took all necessary safety precautions and wasn't aware of any medical problems until the ceremony was over. Ray declined to speak with authorities that night, on the advice of his attorneys, public records have shown.

Authorities said they quickly determined the deaths were not accidental and focused their investigation on Ray. They conducted hundreds of interviews that reached into Ray's past ceremonies and events, including one in which a man fell unconscious during a 2005 sweat lodge ceremony at the same retreat near Sedona.

The self-help superstar who teaches people about financial and spiritual wealth uses free seminars to recruit followers to more expensive events. His company, James Ray International, is based in Carlsbad, Ca.

Ray's representatives have said there was no way Ray could have predicted the night's tragic events. Had he heard any pleas for help inside the pitch-black sweat lodge, he would have stopped the ceremony immediately, Ray's attorneys said.

Documents released in the investigation showed that some people lost consciousness and others suffered broken bones at past Ray-led events and that Ray largely ignored medical problems that arose.

In the weeks after the deaths, lawsuits accused Ray and the owners of the Angel Valley Retreat Centerwhere the sweat lodge was held of negligence and fraud. Ray's publisher postponed two book releases, and Ray canceled his appearances amid heavy criticism from survivors.

Amayra Hamilton, one of the Angel Valley owners, has said the staff had minimal contact with Ray over the seven years he held sweat lodges there, and that other groups had used the same lodge for ceremonies without any problems.

Bunn said she believes the "Spiritual Warrior" events should be called off indefinitely.

"It frightens me that I didn't stand back a little more," she said.

Scott Drake interviews Columbia Law Professor Conrad Johnson (Video)

(NYT) While law schools added about 3,000 seats for first-year students from 1993 to 2008, both the percentage and the number of black and Mexican-American law students declined in that period, according to a study by a Columbia Law School professor.

What makes the declines particularly troubling, said the professor, Conrad Johnson, is that in that same period, both groups improved their college grade-point averages and their scores on the Law School Admission Test, or L.S.A.T.

“Even though their scores and grades are improving, and are very close to those of white applicants, African-Americans and Mexican-Americans are increasingly being shut out of law schools,” said Mr. Johnson, who oversees the Lawyering in the Digital Age Clinic at Columbia, which collaborated with the Society of American Law Teachers to examine minority enrollment rates at American law schools.

However, Hispanics other than Mexicans and Puerto Ricans made slight gains in law school enrollment.

The number of black and Mexican-American students applying to law school has been relatively constant, or growing slightly, for two decades. But from 2003 to 2008, 61 percent of black applicants and 46 percent of Mexican-American applicants were denied acceptance at all of the law schools to which they applied, compared with 34 percent of white applicants.

“What’s happening, as the American population becomes more diverse, is that the lawyer corps and judges are remaining predominantly white,” said John Nussbaumer, associate dean of Thomas M. Cooley Law School’s campus in Auburn Hills, Mich., which enrolls an unusually high percentage of African-American students.

Mr. Nussbaumer, who has been looking at the same minority-representation numbers, independently of the Columbia clinic, has become increasingly concerned about the large percentage of minority applicants shut out of law schools.

“A big part of it is that many schools base their admissions criteria not on whether students have a reasonable chance of success, but how those L.S.A.T. numbers are going to affect their rankings in the U.S. News & World Report,” Mr. Nussbaumer said. “Deans get fired if the rankings drop, so they set their L.S.A.T. requirements very high.

“We’re living proof that it doesn’t have to be that way, that those students with the slightly lower L.S.A.T. scores can graduate, pass the bar and be terrific lawyers.”

Margaret Martin Barry, co-president of the Society of American Law Teachers, said that while she understood the importance of rankings, law schools must address the issue of diversity. “If you’re so concerned with rankings, you’re going to lose a whole generation,” she said.

The Columbia study found that among the 46,500 law school matriculants in the fall of 2008, there were 3,392 African-Americans, or 7.3 percent, and 673 Mexican-Americans, or 1.4 percent. Among the 43,520 matriculants in 1993, there were 3,432 African-Americans, or 7.9 percent, and 710 Mexican-Americans, or 1.6 percent. The study, whose findings are detailed at the Web site A Disturbing Trend in Law School Diversity, relied on the admission council’s minority categories, which track Mexican-Americans separately from Puerto Ricans and Hispanic/Latino students.

“We focused on the two groups, African-Americans and Mexican-Americans, who did not make progress in law school representation during the period,” Mr. Johnson said. “The Hispanic/Latino group did increase, from 3.1 percent of the matriculants in 1993, to 5.1 percent in 2008.”

Mr. Johnson said he did not have a good explanation for the disparity, particularly since the 2008 LSAT scores among Mexican-Americans were, on average, one point higher than those of the Hispanics, and one point lower in 1993.

Over all, Mr. Johnson said, it is puzzling that minority enrollment in law schools has fallen, even since the United States Supreme Court ruled in 2003, in Grutter v. Bollinger, that race can be taken into account in law school admissions because the diversity of the student body is a compelling state interest.

“Someone told me that things had actually gotten worse since the Grutter decision, and that’s what got us started looking at this,” Mr. Johnson said. “Many people are not aware of the numbers, even among those interested in diversity issues. For many African-American and Mexican-American students, law school is an elusive goal.”

The ACC Value Challenge is based on the concept that firms can greatly improve the value of what they do, reduce their costs to corporate clients and still maintain strong profitability.

ACC believes that many traditional law firm business models and many of the approaches to lawyer training and cost management are not aligned with what corporate clients want and need: value-driven, high-quality legal services that deliver solutions for a reasonable cost and develop lawyers as counselors (not just content-providers), advocates (not just process-doers) and professional partners.  

ACC has launched an initiative to reconnect value and costs for legal services and which will:  

• Promote dialog among corporate counsel, law firms, law schools, and others who are interested in driving an alignment and focus on value;  
• Develop methodologies and metrics that corporate counsel can use to assess the strengths and weaknesses of law firm vendors;
• Create tools that in-house counsel and firms can share to drive change in the performance of value-based legal services; and  
• Enhance awareness and communicate success stories in achieving value and alignment.

 
We plan to think in a revolutionary fashion, but work in an evolutionary and inclusive manner, with the goal of helping foster a (r)evolution in the legal services marketplace.

A national dialog about the need to reconnect value to costs, especially within the law firm community, with a common language and framework that ACC will have helped define.
 
Tool kits for use by in-house and outside counsel that contain leading practices, management tools, models for managing to value, and networks by which ACC members can communicate their experiences and ask questions of each other, including “who do you use and how do you do this?”
 
Recognition by senior management that GCs and in-house counsel are taking the lead, rather than simply being reactive, and that they are exercising strong business skills in balancing their inside and outside legal spend – targeting results and outcomes, rather than just hoping to manage an unpredictable process.
 
A client community that supports law firm efforts to implement change, including a willingness to reward those efforts.  
 
Law firms that are better focused on retaining the talent and rewarding the skills that are valued by clients; training at law schools and law firms that develops the needed skills; and matter management that is driven by client expectations and needs.  
 
Greater satisfaction and pride in their work for both inside and outside lawyers – less time spent bickering over costs, greater focus on solving client problems, and greater satisfaction with what is accomplished and how it is accomplished.
 
A core group of identified leaders in the in-house and outside communities (firms, consulting houses, media, etc.) who are our partners in promoting the need for change.
 
A better alignment of interests of the corporate client and the outside firms, leading to a professional culture and market that is focused on delivering high value.

Under the terms of the Settlement in Cobell v. Salazar, the federal government will create a $1.4 billion Trust Accounting and Administration Fund and a $2 billion Trust Land Consolidation Fund. The Settlement also creates a $60 million federal Indian Education Scholarship fund to improve access to higher education for Indian youth, and it includes a commitment by the federal government to appoint a commission that will oversee and monitor specific improvements in the Department's accounting for and management of individual Indian trust accounts and trust assets, going forward. This Settlement is believed to be the largest ever against the federal government and dwarfs the combined value of all judgments and Settlements of all Indian cases since the founding of this nation.

The legal team for the Plaintiffs is headed by Dennis M. Gingold, an attorney in private practice in Washington, D.C., with support from Keith M. Harper, Bill Dorris, David Smith, and Elliott Levitas, attorneys at Kilpatrick Stockton LLP.

Keith Harper is a partner in the Litigation department and heads the Native American Affairs practice group. In 2008, the National Law Journal selected Mr. Harper as one of 50 “Most Influential Minority Lawyers in America” (5/26/08)

Brad Bernstein, President of the Law Offices of Spar & Bernstein and new LBN Commentator talks about his New York, immigration law practice and radio show with LBN host Scott Drake.

Go to his LBN Commentator Profile

Hidden data embedded in electronic public records must be disclosed under Arizona's public records law, the state Supreme Court said Thursday in a groundbreaking ruling that attracted interest from media and government organizations.

The Supreme Court's unanimous decision, which overturned lower court rulings, is believed to be the first by a state supreme court on whether a public records law applies to so-called "metadata."

"This is at the cutting edge -- it's the law trying to catch up with technology," said David R. Merkel, a lawyer for a municipalities group that urged the justices to rule that metadata doesn't have to be disclosed.

Metadata can show how and when a document was created or revised and by whom. The information isn't visible when a document is printed on paper nor does it appear on screen in normal settings.

The Arizona ruling came in a case involving a demoted Phoenix police officer's request for data embedded in notes written by a supervisor. The officer got a printed copy but said he wanted the metadata to see whether the supervisor backdated the notes to before the demotion.

"It would be illogical, and contrary to the policy of openness underlying the public records law, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public records," Justice Scott Bales wrote.

Disclosing metadata shouldn't be overly burdensome on public entities, Bales wrote.

Dan BarrArizona's law generally requires governmental entities to release public records, but they don't have to create them to meet a request.

A Washington state appellate court ruled last year that metadata in e-mail received by a city's deputy mayor was a public record. Unlike Arizona's law, the Washington law specifically says the data is subject to disclosure. That case is pending before the Washington Supreme Court.

The League of Arizona Cities and Towns and other governmental entities filed briefs citing burdens of complying with requests for metadata and urging the justices to uphold a Court of Appeals ruling.

Meanwhile, media organizations, including The Associated Press, cited the media's watchdog role and asked the court to rule that the public records law applies to metadata.

The Arizona decision likely will have a "persuasive effect" on other states' courts, said Dan Barr, an attorney who filed a brief on behalf of the Society of Professional Journalists and other media organizations.

"If there's metadata in there, that's public record," he said.

The ruling also means requested electronic records must be provided in that form rather than paper printouts, which makes them difficult and costly to search, Barr said.

The opinion said some metadata, like other public records, could be withheld for privacy or other reasons.

The Federal Aviation Administration on Tuesday revoked the licenses of the two Northwest Airlines pilots who overshot their Minneapolis destination by 150 miles.

The pilots — Timothy Cheney of Gig Harbor, Wash., the captain, and Richard Cole of Salem, Ore., the first officer — told safety investigators they were working on their personal laptop computers and lost track of time and place.

The pilots, who were out of communications with air traffic controllers for 91 minutes, violated numerous federal safety regulations in the incident last Wednesday night, the FAA said in a statement. The violations included failing to comply with air traffic control instructions and clearances and operating carelessly and recklessly, the agency said.

"You engaged in conduct that put your passengers and your crew in serious jeopardy," FAA regional counsel Eddie Thomas said in a letter to Cheney. Northwest Flight 188 was not in communications with controllers or the airline dispatchers "while you were on a frolic of your own. ... This is a total dereliction and disregard for your duties."

A similar letter was sent to Cole.

The pilots said they were brought back to awareness when a flight attendant contacted them on the aircraft's intercom. By then, they were over Wisconsin at 37,000 feet. They turned the Airbus A320 with its 144 passengers around and landed safely in Minneapolis.Aviation Lawyer Charles Brewer

The revocations of the pilots' commercial licenses are effective immediately, FAA said.

The pilots have 10 days to appeal the emergency revocations to the National Transportation Safety Board. If that fails, they can apply for a new certificate after one year.

The pilots' union at Delta Air Lines, which acquired Northwest last year, had cautioned against a rush to judgment. The pilots told investigators who interviewed them on Sunday that they had no previous accidents or safety incidents.

Delta spokesman Anthony Black said in a statement: "The pilots in command of Northwest Flight 188 remain suspended until the conclusion of the investigations into this incident."

Phone messages left with the union and at the homes of the pilots were not immediately returned Tuesday.

One passenger, Lonnie Heidtke of Chippewa Falls, Wis., said he thought it was a stiff penalty for the pilots.

"I feel that the FAA pulling their license seems a little severe, I guess. But at the same time, I think they should not be flying airplanes at least for a while so they have an opportunity to think about this."

The NTSB has not taken or examined the laptops that the pilots were using, spokesman Ted Lopatkiewicz said Tuesday.

"The pilots said they were using them. So I don't know what any examination of them" would do to further the investigation, Lopatkiewicz said.

The pilots failed to respond to numerous radio messages from controllers in Denver and Minneapolis. Other pilots also tried to raise the Northwest pilots, and their airline's dispatchers sent text messages by radio.

Cole and Cheney said they both had their laptops out while the first officer, who had more experience with scheduling, instructed the captain on monthly flight crew scheduling. They said they weren't listening to the radio or watching cockpit flight displays during that period. The plane's radio was also still tuned to the frequency used by Denver controllers after the San Diego-to-Minneapolis flight had flown beyond their reach.

The incident comes only a month after Transportation Secretary Ray LaHood held a meeting in Washington on distracted driving, bringing together researchers, regulators and safety advocates in response to vehicle and train accidents involving texting and cell phone use.

Pilots and aviation safety experts said the episode is likely to cause the NTSB and the FAA to take a hard look at the use of laptops and other personal electronic devices in the cockpit.

There are no federal rules that specifically ban pilots' use of laptops or other personal electronic devices as long as the plane is flying above 10,000 feet, said Diane Spitaliere, an FAA spokeswoman.

Delta said in a statement that using laptops or engaging in activity unrelated to the pilots' command of the aircraft during flight is strictly against the airline's flight deck policies. The airline said violations of that policy will result in termination.

(The Associated Press)

Phoenix, Arizona Aviation law expert Charles Brewer says the pilots' laptops likely blocked the navigation instruments.