It's hard to tell which best explains a decision by the U.S. Court of Appeals for the Fourth Circuit last week when it shot down retired judge Richard Posner in his first foray as an advocate since leaving the bench. But one thing is clear: The unsigned per curiam opinion by judges William Byrd Traxler Jr., Allyson Duncan and James Wynn Jr. missed the whole point of the appeal—that pro se litigants deserve better. The seven-page decision doesn't even contain the phrase “pro se.” Since Posner stepped down from the Seventh Circuit last year, the most-cited legal scholar of all time has been on a mission to make the justice system more accessible and responsive to pro se litigants. He launched The Posner Center of Justice for Pro Se's to provide pro bono representation, as well as assisting pro se litigants behind the scenes to help them successfully represent themselves. And he took on the case of William Bond, a pro se litigant who had his lawsuit alleging “longstanding misconduct regarding the misuse of the U.S. Marshals Service and the FBI” curtly dismissed. Bond's allegations—convoluted and conspiracy-minded—could well turn out to be without merit. But Posner was more focused on how the trial court judge responded when Bond tried to fix deficiencies in his original complaint. “Twice the district rejected Bond's effort to amend his complaint—both times without any explanation,” Posner wrote in his opening brief. “[T]he present appeal illustrates the errors a trial court too frequently commits when adjudicating a pro se litigant's claims.” Posner continued, “The Supreme Court and this court have repeatedly cautioned that 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' The trial court did not heed this requirement. It instead set the bar too high for a non-lawyer litigant.” (citations omitted) The Fourth Circuit responded with what amounted to a shrug. The panel ruled on Aug. 2 that the trial court judge, Senior U.S. District Judge David Faber in Maryland, didn't abuse his discretion. They pointed to his first ruling, where he tossed Bond's complaint on multiple grounds—failure to state a claim, lack of jurisdiction over defendants in their official capacity, qualified immunity, lack of standing, failure to exhaust administrative remedies. It is, admittedly, a long list, although Posner in a less-than-diplomatic reply brief pointed out that much of it came verbatim from the government's motion. “The district court's laziness leaves a pro se litigant with the perception that the judge did not independently analyze Bond's complaint,” Posner wrote. “The district court's actions create the impression of plagiarism and an abdication of its independent judicial duties." (It's possible Posner was not the most popular colleague on the federal bench.) As far as the Fourth Circuit was concerned, that was good enough. And the panel made this leap: Because Faber said he was relying on his earlier ruling, “we conclude that the only relevant basis for [Faber's] decision was a determination that the proposed second amended complaint was futile”—even if he didn't actually say that. “[T]he district court's failure to specifically articulate that rationale does not amount to an abuse of discretion,” the panel found. The decision amounts to blowing off everything Posner had said about the barriers facing pro se litigants. “The district court's refusal to provide any explanation for its dismissal cannot be condoned,” Posner wrote in his brief. “To do so would run counter to settled precedent. It would send the wrong message to pro se litigants who cannot afford counsel.” The Fourth Circuit in issuing an opinion likewise devoid of explanation just sent a message of its own: If you don't have a JD, too bad. We're not about to give you a break. |

It's a Bird, It's a Plane, It's… Quinn Emanuel Billing Rates

A federal judge in California last week awarded $4 million in legal fees to Quinn Emanuel Urquhart & Sullivan client Tsuburaya Productions in a fight involving Ultraman, one of Japan's most popular superheroes. Among the fee requests: John Quinn for the bargain rate of $960 an hour—although that's purportedly well below his normal hourly rate. The case revolved around whether a 1976 contract was real or forged. According to the firm , a Thai man known as Mr. Sompote in 1996 “claimed that he owned all rights in 'Ultraman' outside of Japan based on a one-page contract that, he asserted, had been executed 20 years earlier by Tsuburaya's former president, Noboru Tsuburaya” (who is now deceased). The dispute has been litigated with varying results in Thailand, Japan and China. In January, a Los Angeles federal jury found the contract was not authentic. Quinn subsequently moved for legal fees in connection with claims stemming from the Copyright Act, which allows recovery of costs. Here's a look at the billing rates, which U.S. District Judge André Birotte Jr. in his order said “were allegedly 20 percent lower than what Quinn Emanuel would typically charge.” The judge also noted that the firm “is a preeminent law firm with extensive experience in intellectual property litigation,” and praised “the quality of defense counsel's lawyering.” Ryan Goldstein, who heads the firm's Tokyo office and has been a partner since 2006, billed between $748 and $804 an hour, again purportedly “well below” his normal rate. Daniel Posner, a partner since 2013, billed between $672 and $780 an hour. Lead associate Zachary Schenkkan billed between $292 and $580 an hour. Paralegals were billed around $240 an hour. The trial graphics specialist cost $250 an hour. |

Judge Greenlights Securities Suit Against Sidley Client KPMG

Accounting giant KPMG remains on the hook in a securities class action stemming from its work as the independent auditor of Miller Energy Resources, Inc. The plaintiffs, represented by Cohen, Milstein, Sellers & Toll, claim that Miller Energy grossly overstated the value of its oil and gas interests in Alaska—and that KPMG let them get away with it. Last week, Chief U.S. District Judge Thomas Varlan in the Eastern District of Tennessee refused to dismiss the case against KPMG, which is represented by Sidley Austin and Waller, Lansden, Dortch & Davis. One sign that the Alaska assets weren't so hot: Before Miller bought them, a bankruptcy court tried and failed to auction them off. The bankruptcy court approved the abandonment of the assets because they were “of no value or other benefit” to the former owner. And yet, Miller in its reserves report estimated the assets were worth $368 million. The company also claimed $110 million for acquired fixed assets, even though that figure was counted in the (already dubious) $368 million estimate. Miller went on to declare bankruptcy and settled with the SEC late last year. But KPMG is still on the hook. The team that did the Miller audit had no oil or gas experience—and to hear Varlan tell it, they weren't exactly whizzes at accounting either. “Because of the number of alleged red flags, and because defendant admits to knowing of several alleged red flags, plaintiffs have sufficiently pled scienter to survive the motion to dismiss stage in the proceedings,” he wrote. The suit follows a record $625 million award against PricewaterhouseCoopers for professional negligence after the accounting giant failed to detect fraud when it audited now-defunct Colonial Bank. |

Latham in the Lead

You learn something new every day. You know those air-filled plastic pouches that pad the contents of just about every box you get in the mail? They're called dunnage. And two companies that make them are involved in a big patent fight. Latham & Watkins represents Free-Flow Packaging International Inc., which was sued in 2014 for infringing six patents owned by Automated Packaging Systems, represented by Hughes Hubbard & Reed; Morrison & Foerster and Calfee, Halter and Griswold. In January, Latham lawyers got the case transferred from the Northern District of Ohio to the Northern District of California (thanks TC Heartland!). On Thursday, they kept the momentum going when U.S. District Judge Edward Chen issued a claim construction order that appears to favor Free-Flow. The Latham team includes partners Richard Frenkel, Max Grant, and Marc Zubick, and associates Brett Sandford, Kyle Virgien, Nicholas Yu, Maureen Long and Ravi Antani. A jury trial is scheduled for July 8, 2019 in San Francisco. Meanwhile, Latham's client is proceeding with its own patent suit against Automated Packaging Systems—this one still pending in Ohio. |

What I'm Reading

In Wachtell Malpractice Suit Deposition, Carl Icahn Gets Testy “I don't think you have a right to come in and ask me questions. Why don't you say how are you getting along with your wife, and we can discuss that now?” Icahn told Wachtell's counsel in the deposition. Litigator Cris Arguedas on 'What It Takes to Be a Trial Lawyer if You're Not a Man' The star litigator pens a powerful response to a recent article in The Atlantic writing, “Put simply, it is not the end of the world if a juror doesn't like you. If, as a juror once said to me, 'I thought you were a bitch, but that witness was a liar'—I have won.” Hospital Chain Prime Healthcare to Pay $65M to Settle Fraud Claims The nation's fifth-largest hospital chain has agreed to pay the federal government $65 million to settle a long-running whistleblower lawsuit. A Writ and a Prayer: Greenberg Traurig, Attorneys General File Briefs in Suit Over Prayer on the Football Field Are a high school football coach's on-field prayers a private religious action, with free-speech protections under the U.S. Constitution, or do they amount to a public display by a government employee? Judge Spurns Trump Agency's 'Hodgepodge' Reasons for Ending DACA U.S. District Judge John Bates in Washington, D.C. has ruled for the second time that the Trump administration's move to end the DACA immigration program was unlawful. New York AG Investigating Trump for In-State Emoluments Violations When the crown prince of Saudi Arabia booked a five-day stay at Trump International Hotel and Tower in Manhattan, it was reportedly enough to boost the hotel's entire quarterly earnings. Why This Quinn Emanuel Litigator (and His Corporate Clients) Are Fighting for LGBT Workers Check out the latest Legal Speak podcast, featuring New York litigator Todd Anten talking about the long fight for LGBT employment protections, why courts are so divided, and what's changed with the retirement of Justice Anthony Kennedy.