Alleged Gunman in Pittsburgh Gym Shootings Was K&L Gates Staffer

Negative news coming out of the legal industry has occasionally crossed over from word of business troubles to serious personal troubles and tragedy. The latest such instance comes out of Pittsburgh.

K&L Gates was hesitant to say much Wednesday about an employee who police said went on a shooting rampage Tuesday at a suburban-Pittsburgh L.A. Fitness, killing four people, including himself, and injuring nine others.

"K&L Gates is deeply saddened by last night's events, and offers its condolences to the families and friends of all who were involved in this terrible tragedy," the firm said in a statement.

K&L Gates is offering on-site counseling for employees through the firm's employee assistance program, a firm spokesman said.

The spokesman confirmed that the alleged shooter, George Sodini, 48, was a systems analyst in the finance department and had worked at K&L Gates since 1999. Prior to that, according to media reports and his profile on LinkedIn, Sodini worked at Development Dimensions International.

He left behind an online diary that has since been taken down. The at-times explicit entries began on Nov. 5, 2008, discussing how his plan -- allegedly to carry out the shooting -- had been delayed. It was in an April 2009 entry that he first mentioned he worked at K&L Gates and that the firm had recently completed a second round of layoffs. After complaining about the firm making cuts "unnecessarily," Sodini went on to praise the firm but suspected he wouldn't survive the next round of layoffs.

"Most people there are OK and I would never have a shoot 'em up there," he wrote. "They paid me for 10 years so far!"

It seemed from his entries that Sodini's job was one thing keeping him going and preventing him from carrying out the shooting earlier.

"I predict I won't survive the next layoff," he wrote. "That is when there is no point to continue. Right now, life is bearable and I can get by indefinitely. Something bad must happen. The pay check is all I have left."

In a later July entry, Sodini said he had been promoted and received a raise and his LinkedIn profile said he was now a programmer/analyst at the firm. K&L Gates spokesman Mike Rick said he couldn't discuss whether Sodini had recently been promoted and could only confirm that he worked at the firm at the time of the incident.

He also confirmed that a man listed by name in Sodini's blog under the category "idiots" was an employee of the firm. That man's LinkedIn profile shows he is the director of information systems planning and development at K&L Gates. The Legal Intelligencer has chosen not to publish the employee's name.

All of those killed or wounded were women attending an aerobic workout class at the club Tuesday night, Allegheny County Police Superintendent Charles Moffatt said at a press conference. Sodini was a member at the gym, and there was no reason to stop him when he walked in. Moffatt said Sodini was dressed in workout clothes and carrying a gym bag. It was later reported that the gym bag contained a note and the guns used in the shooting. Moffatt said there were 52 rounds of ammunition missing and presumed to have been shot. The shooting took place around 8 p.m. Tuesday.

"I don't think anybody could have stopped him," Moffatt said at the press conference, which was made available on the Pittsburgh Post-Gazette's Web site. The majority of Sodini's diary entries discussed how alone he felt and how he hadn't had a girlfriend in years. A Jan. 6, 2009, entry said he had walked into the gym that day with loaded guns but "chickened out."

His final entry was posted Aug. 3, the day before the shooting. At the top of the diary, where it listed his name and place of residency, Sodini had his birth date, Sept. 30, 1960, and death date, Aug. 4, 2009, listed.

"I took off today, Monday, and tomorrow to practice my routine and make sure it is well polished," Sodini wrote in the final entry. "I need to work out every detail, there is only one shot."

He said he wouldn't add any more entries because the "computer clicking" distracted him. Sodini said the "practice papers" and notes in his gym bag could be freely published.

"I will not be embarrassed, because, well, I will be dead," he wrote.

The shooting occurred in Collier, Pa.; Sodini is from neighboring Scott Township.

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Testimony at Sotomayor Hearing Opens Bloomberg to Deposition

Citing New York City Mayor Michael R. Bloomberg's testimony during the U.S. Senate confirmation hearings of 2nd Circuit Judge Sonia Sotomayor, a federal judge on Wednesday ordered the mayor to attend a three-hour deposition in a discrimination case claiming that two entry-level tests for city firefighters were flawed.

Bloomberg's remarks at the Senate Judiciary Committee's hearing on Sotomayor's nomination to the U.S. Supreme Court indicated that he had a "personal involvement in the events at issue" in the discrimination case, Eastern District of New York Judge Nicholas G. Garaufis concluded in , 07-cv-2067.

Connie Pankratz, a spokeswoman for the Corporation Counsel's Office, said the city "intends to honor the court's order."

Last month, Garaufis found that the two tests, which controlled the Fire Department's hiring of new firefighters from 1999 to 2008, had a disparate impact on black and Hispanic applicants.

During the confirmation hearing, opponents of Sotomayor's appointment questioned her qualifications based on her participation in an unsigned 2nd Circuit ruling upholding the decision of officials in New Haven, Conn., to throw out the results of a firefighter test because no blacks had passed it.

The Supreme Court in June reversed the 2nd Circuit, finding in Ricci v. DeStefano, 129 S.Ct. 2658, that New Haven's discarding of the results discriminated against white applicants who had passed the exam.

In his July 16 testimony in Washington, D.C., Bloomberg referred to the lawsuit against the city after stating that he disagreed with the way New Haven officials had handled that city's test.

The mayor added that he had chosen to fight the suit against New York City.

"I think that in fact the tests were job related and were consistent with business necessity," he said. However, he also endorsed Sotomayor's nomination.

About a week after the confirmation hearing, Garaufis ruled in the New York City case that the tests administered by the Fire Department in 1999 and 2002 had a disparate impact on blacks and Hispanics.

According to the plaintiffs expert, the use of the tests resulted in the disqualification or delayed appointment of about 540 minority applicants.

Each test had a threshold score that an applicant had to meet in order to be eligible for appointment. Those who met the threshold were then selected from a list based on their scores.

TWO CRITERIA MET

Garaufis found that the two criteria governing when a high public official could be ordered to attend a deposition had been met: The mayor had information relevant to the case that could not be obtained from any other source and three hours of questioning would not interfere with his official duties.

The mayor has previously been examined at two deposition sessions, lasting a total of eight hours, in a suit brought by 80 women employees of the media company he founded, Bloomberg L.P. The discrimination in that case was alleged to have taken place after Bloomberg left the company to run for mayor in 2001, and he testified as a witness, not a defendant.

The mayor is named as a defendant in the Eastern District case, which was initiated by the U.S. Equal Opportunity Commission in 2007. Garaufis subsequently allowed the Vulcan Society, a professional organization of black firefighters, and three minority firefighters to intervene.

Although Garaufis has ruled that the city tests had a disparate impact, he has yet to determine a second claim that has only been raised by the intervenors: that the use of the two tests reflected an intention on the part of city officials to discriminate.

If the plaintiffs can demonstrate intentional discrimination, they will be able to seek compensatory damages for minority applicants who took the two tests, said Darius Charney, a staff attorney at the Center for Constitutional Rights, who represents the intervenors.

Bloomberg's testimony is needed to prove the intervenors' claim of intentional bias, Charney said. The 2002 test was administered after Bloomberg took office, he added, and the intervenors will seek to elicit information he had as to the tests' discriminatory impact, and why his administration decided to continue using the test.

The city started using a new test in 2008, Charney said.

The finding of disparate impact discrimination permits the plaintiffs to seek a priority in future appointments and an order requiring the city to use a nondiscriminatory process, Charney said.

Pankratz, the Corporation Counsel's spokeswoman, said that discovery has yet to be completed.

A conference with Garaufis is scheduled for this afternoon to chart the course of the litigation.

The city was represented by Georgia Pestana, chief of the Corporation Counsel's labor and employment division, and William Fraenkel and James Lemonedes, both senior counsels.

Special Litigation Counsel Sharon A. Seeley, of the U.S. Justice Department's Civil Rights Division in Washington, D.C., was the lead counsel for the EEOC.

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Bank of America to Pay $33 Million in Merrill Bonuses Case

Bank of America agreed on Monday to pay $33 million for charges of allegedly misleading investors about billions in bonuses it agreed to pay Merrill Lynch & Co. executives when it was on the verge of acquiring Merrill for $50 billion in a 2008 merger.

The payment settles a civil suit filed in the Southern District of New York by the Securities and Exchange Commission. The SEC charged that proxy materials sent to Bank of America shareholders on the proposed acquisition stated that Merrill Lynch had agreed not to pay performance bonuses and other compensation to executives prior to the closing of the merger when, in fact, Bank of America had already contractually authorized Merrill Lynch to pay up to $5.8 billion.

Robert Khuzami, director of the SEC's Division of Enforcement, released a statement saying, "Companies must give shareholders all material information about corporate transactions they are asked to approve. Failing to disclose that a struggling company will pay out billions of dollars of performance bonuses obviously violates that duty and warrants the significant financial penalty imposed by today's settlement."

Bank of America agreed to the settlement without admitting or denying the allegations.

"Bank of America believes that the settlement ... represents a constructive conclusion to this issue," company spokesman Scott Silvestri said in an e-mailed statement.

New York Attorney General Andrew Cuomo, who referred the case to the SEC in April, said his investigation is continuing. The SEC said its probe also is ongoing.

Lewis J. Liman of Cleary Gottlieb Steen & Hamilton represented Bank of America. David Rosenfeld, associate regional director for the New York regional office, was lead counsel for the SEC.

The Associated Press contributed to this report.

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3rd Circuit Upholds 10-Year Internet Ban in Child Porn Case

A man who was indicted as the leader of a child pornography ring in Delaware has lost an appeal that challenged both his 20-year prison term and a ban on using the Internet for another decade after he is released.

Paul Thielemann, 26, pleaded guilty to one count of receiving child pornography and claimed in the appeal that his punishment was premised on conduct for which he was never formally charged -- encouraging others to commit acts of child molestation.

The appellate panel flatly rejected Thielemann's challenge to the length of his prison term, concluding that it was within the range suggested by the sentencing guidelines and not out of line with the sentences imposed on other leading members of the ring.

But the decision in United States v. Thielemann is legally significant because it helps define a still emerging area of the law that trial judges have found perplexing: how far judges can go in crafting the "conditions of release" that restrict a criminal defendant's behavior in the period just after a prison term.

In prior decisions, the 3rd U.S. Circuit Court of Appeals has overturned some restrictions as too harsh, such as a lifetime ban on using computers or barring a defendant from possessing all forms of pornography, including legal adult pornography.

But in the case of Thielemann, the 3rd Circuit concluded that the conduct was far worse and justified the harsh restrictions imposed by U.S. District Judge Sue Robinson because the evidence showed that Thielemann not only traded child pornography with nine other men, but also encouraged some of the men to engage in acts of child molestation and to share images of those acts on Web cams.

Senior U.S. Circuit Judge Leonard I. Garth concluded that Robinson hadn't violated Thielemann's First Amendment rights when she barred him from possessing any "sexually explicit" materials.

"We hold that there is a significant nexus between restricting Thielemann from access to adult 'sexually explicit' material and the goals of supervised release, and that the restriction here is not overbroad or vague considering the content of the instant record," Garth wrote in an opinion joined by 3rd Circuit Judge Marjorie O. Rendell and visiting U.S. District Judge Thomas I. Vanaskie of the Middle District of Pennsylvania.

Garth also found that Robinson had properly tailored a restriction that bans Thielemann from accessing the Internet for 10 years after his release unless he gets permission from his probation officer.

"Thielemann can own or use a personal computer as long as it is not connected to the Internet; thus he is allowed to use word processing programs and other benign software," Garth wrote.

Garth found there were sharp contrasts between Thielemann's case and that of Daniel Voelker, whose lawyers successfully argued in June 2007 that the trial judge had gone too far in imposing a lifetime ban on using computers.

According to court papers, Voelker was nabbed during an FBI investigation of another man, Wyndell Williams, when agents were monitoring a computer "chat" between Williams and Voelker.

During the online chat, Voelker briefly exposed the buttocks of his 3-year-old daughter over a webcam that was connected to his computer, and, when confronted by the FBI, admitted to downloading child pornography and to exposing his daughter. But Voelker insisted that statements he had made in the chat about sexual contact with minors or offering his daughter for sex were merely gratuitous statements in the nature of "role-playing."

Voelker pleaded guilty and was sentenced to 71 months in prison, but argued on appeal that the lifetime ban on using computers was too harsh.

In overturning the restriction, 3rd Circuit Judge Theodore A. McKee wrote: "Although Voelker's conduct was reprehensible, he did not use his computer equipment to seek out minors nor did he attempt to set up any meetings with minors over the Internet."

McKee found that the trial judge failed to tailor the restriction because "computers and Internet access have become virtually indispensable in the modern world" and a "lifetime ban on all computer equipment and the Internet is the functional equivalent of prohibiting a defendant who pleads guilty to possession of magazines containing child pornography from ever possessing any books or magazines of any type during the remainder of his/her life."

But in Thielemann's case, Garth found that the restrictions were less harsh because the ban lasts 10 years as compared to a lifetime ban, and that Robinson was justified by Thielemann's conduct, which went beyond mere possession of pornographic images.

"The parameters of the computer restriction in this case are far less troubling than those in Voelker," Garth wrote.

"Moreover, the restriction is not disproportionate when viewed in the context of Thielemann's conduct," Garth wrote. "Thielemann did more than simply trade child pornography; he utilized Internet communication technologies to facilitate, entice, and encourage the real-time molestation of a child."

As a result, Garth said, "the restriction on computer and Internet use therefore shares a nexus to the goals of deterrence and protection of the public, and does not involve a greater deprivation of liberty than is necessary in this case."

Thielemann was represented in the appeal by attorney Larrick B. Stapleton of Ardmore, Pa.

Assistant U.S. Attorney Edmond Falgowski argued the appeal for the government.

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Two More 'Iqbal' Dismissals Emerge in Product Liability Cases

The Supreme Court's May 2009 ruling in Ashcroft v. Iqbal (pdf) is quickly becoming the best thing to happen to the products liability defense bar since Daubert. We told you a couple of weeks ago about the dismissal of a false-marketing suit involving AstraZeneca's anti-psychotic drug Seroquel because it didn't meet the new, tougher pleading standard the Court laid down in Iqbal. Now we have word of two other recent Iqbal dismissals involving controversial products. No wonder Sen. Arlen Specter is on the warpath against Iqbal.

On July 23, Judge Herman Weber tossed manufacturing and design defect claims in Frey v. Novartis Pharmaceuticals Corp., in which Amanda Frey sued Novartis when she developed multi-organ failure after taking an epilepsy drug called Trileptal. In his 13-page opinion (pdf), Weber concluded that Frey's lawyers at O'Connor Acciani & Levy "have failed to allege any facts that would permit the court to conclude that a manufacturing defect occurred and that the defect was the proximate cause of Amanda Frey’s alleged injuries." Lead counsel for Novartis was Michael Junk of Hollingsworth LLP, who didn't immediately return our call. [Hat tip: Drug and Device Law.]

The Mass Tort Defense blog, meanwhile, has news of the July 24 dismissal of a class action against Playtex, alleging excess lead in baby bottle coolers. Chicago federal district court Judge Joan Lefkow wasn't as explicit in her reliance on Iqbal as Judge Eber, but she did cite the ruling in her discussion of the pleading standard she applied. Plaintiffs lawyers Mary Jane Feit and John Tangren of Wolf Haldenstein Adler Freeman & Herz told the Litigation Daily that Lefkow's ruling actually demands that they meet an even higher pleading standard than that required by Iqbal because their class action alleges fraud. They said they will "probably" file an amended complaint against Playtex, and noted that they are awaiting Lefkow's rulings on motions to dismiss two related class actions, in both of which defendants have asserted that their complaints did not meet Iqbal standards.

Meanwhile, the plaintiffs lawyer representing Amanda Frey in the Novartis case, had plenty to say about the Supreme Court's Iqbal pleading standard. "What a mess they have created with that," Alissa Magenheim of O'Connor Acciani told us. "I think it's going to become an insurmountable [pleading] standard if we're not careful." The problem, she said, is that the standard demands specificity that plaintiffs can't often show until they've been permitted discovery. "How do you have the facts unless you're an insider?" Magenheim said. "How do you get there if you're not allowed to go there?"

This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.

Google Rebounds in AdWords Lawsuits

Suits over the use of trademarks in Google ads appeared to have the glimmer of a new gold mine for plaintiffs lawyers, but the luster may be fading.

A favorable ruling for Rescuecom Corp. in April in a long-running case against Google Inc. has fueled more suits, including would-be class actions, against the search giant for selling trademarked keywords that trigger ads alongside its search results.

But in the last two weeks, two AdWords lawsuits -- from Daniel Jurin and Ascentive LLC -- have folded. It highlights the difficulties of the suits, experts say: It's a hard case to make and it's expensive to litigate against Google.

"We're starting to see some of these lawsuits crack," said Eric Goldman, a Santa Clara University School of Law professor who follows the AdWords litigation closely on his Technology & Marketing blog. "My current hypothesis is that they never made sense in the first place -- the plaintiffs got all excited to go take down Google, but suing Google is a loser's bet because Google's going to fight to the death."

In these suits, advertisers accuse Google of selling trademarked keywords to anyone, including competitors. They claim that constitutes infringement because Google users could be confused by links to competitors' ads that appear alongside Google search results for the company's trademarked name.

Jurin sued Google in June in the Central District of California, claiming the company infringed on his StyroTrim trademark (it's a type of building material) by allowing competitors to "buy" the word -- meaning rival ads would appear when someone searched for Jurin's product. But on July 15, Jurin's lawyer, Scott Burroughs of L.A.'s Doniger Law Firm, filed a motion to withdraw because of "irreconcilable differences" over strategy and finances. Jurin dropped the case the next week.

Ascentive, a software company, had sued Google on June 25 in federal court in Pennsylvania. It accused Google of infringement and unfairly dropping it from the AdWords program. But on Thursday, Ascentive dismissed the case.

Jordan LaVine, a trademark lawyer with Flaster Greenberg in Philadelphia representing Ascentive, said his client and Google had resolved things, but there was no settlement.

"We came to an understanding and they agreed to reaccept our application for admission into the AdWords program," said LaVine (who does trademark work for Recorder parent company Incisive Media).

Google spokesman Andrew Pederson said that Ascentive didn't get paid for dropping the suit.

"We're pleased that Ascentive decided to voluntarily dismiss their claims against Google, which were meritless from the start," Pederson said in an e-mail. "There was also no money paid or value given to Ascentive by Google in order to resolve this dispute."

Google had suffered a setback in its AdWords case against Rescuecom when the 2nd U.S. Circuit Court of Appeals reversed a lower court's dismissal of the case. Google had persuaded the lower court to toss the case, arguing that its use of Rescuecom's trademark was internal and not a "use in commerce," which constitutes trademark infringement.

The 2nd Circuit's reversal inspired more AdWords suits, including two in Texas that aspire to be class actions. One, FPX v. Google, is being brought by a company owned by Audrey Spangenberg, the wife of famed "patent troll" Erich Spangenberg, The Prior Art Blog reported.

But professor Goldman said the trademark cases will prove more difficult than patent infringement cases for plaintiffs. Even with the Rescuecom ruling, plaintiffs still have to prove the other elements of trademark infringement, including confusion, in which the appearance of the ad next to the search term would lead consumers to believe the two products or companies were connected. This has yet to be proven in any of the cases, said Goldman, adding that there are now seven pending AdWords cases, following the two dismissals.

But there have been some apparent successes on the plaintiff side. American Airlines reached a confidential settlement in an AdWords trademark case against Google and felt good enough about it to go after Yahoo in a case that is still pending.

Google's Pederson said that Google's trademark policy is a fine one.

"We believe that our trademark policy properly balances advertisers' and users' interests, and we'll continue to vigorously defend it."

Ratings Agencies Hit With Suit Blaming Them for Economic Meltdown

Well, no need to worry that Floyd Abrams will be sitting around twiddling his thumbs if newspapers go out of business. For the foreseeable future, the Cahill Gordon & Reindel partner and famed defender of the free press will be busy trotting out First Amendment arguments on behalf of ratings agencies accused of contributing to the economic meltdown via overly rosy evaluations of drecky high-risk securities. A couple of weeks ago we told you that the California Public Employees' Retirement System had thrown its $173 billion of muscle into the litigation against Moody's, Standard & Poor's and Fitch. Now, a second pension fund, the Public Employees' Retirement System of Mississippi, has joined the fight. On Friday the Mississippi fund filed a securities class action against the ratings agencies in federal district court in Brooklyn.

The complaint claims that Moody's, Standard & Poor's and Fitch had a practice of misleading investors by bestowing high ratings on pools of high-risk subprime mortgage-backed investment entities. But unlike the CalPERS case, which was filed in California state court and focuses on only the pension fund's losses, the Mississippi class action purports to represent "all persons or entities who purchased mortgage pass-through certificates" sold by J.P. Morgan Acceptance Corp.

We should note that the MissPERS class action against the ratings agencies is related to a pending class action against JPMAC in Brooklyn federal district court; MissPERS has moved to be lead counsel in that case, which was originally filed by a pension fund represented by Coughlin Stoia Geller Rudman & Robbins. JPMAC is represented by Sidley Austin; defense counsel for the ratings agencies in the MissPERS case are not yet listed on the docket.

MissPERS counsel Marian Rosner of Wolf Popper declined to comment to the Am Law Litigation Daily on the suit against the ratings agencies, but it looks to us like the Mississippi pension fund complaint anticipates the First Amendment defense that has worked well for the agencies in the past. (We love the headline on Wall Street Journal reporter Nathan Koppel's story: "Credit Raters Plead the First.") But the MissPERS complaint contends Moody's, Standard & Poor's and Fitch didn't merely tout the securities but actually worked with J.P. Morgan Acceptance to create them. "Since only the rating agencies knew how to structure the [mortgage-backed securities] deals so they could maximize the number of 'AAA' tranches produced," the complaint alleges, "the ratings agencies held the key to creating salable [securities]."

This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.