Oil, oil, oil, oil ….

As has been reported in the Wall Street Journal, Lawyer Weekly and various other sources, companies that potentially face civil or criminal liability for the Gulf of Mexico oil spill have hired a large cast of outside legal help, including former high-level government attorneys and a top product-liability lawyer.  BP has tapped former U.S. deputy attorneys general Jamie Gorelick and Mark Filip to represent the oil company before Congress and the Justice Department, respectively.  Transocean Ltd. has retained John Beisner of Skadden, Arps, Slate, Meagher & Flom LLP, who represented Ford Motor Co. in litigation involving Explorer sport-utility vehicles and exploding Firestone tires.  He also helped Merck & Co. in litigation over its prescription pain killer, Vioxx.

Legal bills for BP, Transocean, contractor Halliburton Co. and others are mounting as the companies navigate the preliminary stages of a Justice Department criminal inquiry as well as myriad suits filed by fishermen, shrimpers and others who say their livelihoods have been harmed by the spill. 

Gorelick, who now is at WilmerHale, worked at Justice during the Clinton administration and also is a former general counsel for the Defense Department.  She has represented BP before Congress in recent years and will do so now as the company faces a thicket of regulatory and congressional hearings. 

Filip worked at Justice under Bush II.  He and Richard Godfrey, both partners at Kirkland & Ellis, will represent BP in matters concerning the Justice Department as well as the U.S. Marine Board of Investigations. 

Thomas Milch at Arnold & Porter is representing BP on environmental issues. 

Transocean’s team includes Ned Kohnke and Edwin Preis Jr. of Preis & Roy PLC in New Orleans, Ivan Schlager of Skadden and David Wochner and Rachel Clingman of Sutherland Asbill & Brennan. 

There has also been an oil slick of articles concerning the various e-discovery issues such as this one from LegalWeek.com (click here to download)  which quotes some of the major players in e-discovery:  Jim Wagner (CEO of DiscoverReady), Laura Kibbe (senior vice president of document review services at Epiq Systems), Craig Carpenter (general counsel of Recommind), Wendy Curtis (chair of Orrick Herrington & Sutcliffe’s e-discovery Working Group), Amor Esteban (a partner at Shook Hardy & Bacon with expertise in e-discovery and data management), and Sanjay Bhandari (partner at Ernst & Young in London).  

Plus the talk that BP is a take-over candidate (click here).   

Meanwhile, on Capitol Hill, a private consultant for energy companies told Congress that any effort to rewrite oil spill liability laws retroactively would likely face a legal challenge based on breach-of-contract claims.  If  successful, those breach-of-contract claims could cost the federal government billions of dollars in payments to the oil and gas industry.  The Senate Judiciary Committee is considering legislation to lift limits on damage awards.   For the full story from law.com click here.

Data/document collection has begun in the U.S., and in Europe.  Several sites are tracking all of this litigation and we will keep you posted.  It appears the litigation may be situated in Houston (click here) although a few law firms we spoke with said the doc reviews will be across the U.S.  Given the law firms mentioned in the first paragraph of this post (Skadden, WilmerHale, A&P) we can assume (granted, assumptions are always dangerous in doc review predictions) that D.C. will get a good chunk of the work since these firms use D.C. doc review centers for most of their work. 

And let’s not for get all that subprime/financial crisis litigation 

And on top of The Oil Follies we have all the financial litigation we have previously chronicled: the increase in U.S. government data requests from the DOJ and the SEC, compliance audits and investigations at both the state and federal level, hundreds of private litigations, etc.  Most of this work has been in DC with a chunk in NYC.  In fact the DC agencies have been screaming for bodies with the busiest agencies being  Compliance, Hudson Legal, Kelly Law Registry, Legal Assets, Legal Placements, and Pat Taylor.  You can find their contact email by clicking here.   

Over in Europe we have seen the launch of the first large doc reviews involving European banks and financial institutions (projects in Brussels, Geneva, London, Luxembourg, Munich) with more to come. 

Oh, yes.  There are the EU target investigations of the energy, tech, and drug markets (the EU has stepped up antitrust enforcement in the technology, energy, drug and transportation sectors); the LCD makers cartel investigation, etc. 

And the continuing surge in foreign language document review projects 

As we have indicated in numerous posts over the last year, foreign language document reviews have dominated the U.S. contract attorney market due to the continuing increase in FCPA cases and IP litigation.  It has provided a steady stream of work from firms such as A&P, Baker & McKenzie, Finnegan Henderson, Kirkland & Ellis, WilmerHale, etc. who have strong FCPA practices, and IP practices. 

For some of our new members, FCPA doc review work in a nutshell:

▪  Foreign language document reviews made up 78% of Posse List postings last year, and over 40% of those were FCPA related.   And we use the term FCPA broadly because it isn’t only FCPA violations per se.   These cases include money laundering, wire fraud, antitrust laws, private party civil litigations, etc.   

▪  As we have previously reported, the DOJ brought a record 26 actions in 2009; the SEC brought another 14, its second-most ever. The DOJ cases included prosecutions of 44 individuals—a huge surge from just nine in 2008, 10 in 2007, and six in 2006.  There are 130+ cases on track in 2010. 

▪    In Europe we have seen a surge in multi-jurisdiction prosecutions with co-operations between countries.  And we have seen increased industry and sector-wide investigations which has cross-border implications. 

In the U.S., that flood of requests for CJK (Chinese Japanese Korean) fluent attorneys (especially Japanese) on our various job lists is due not only to the Toyota litigations but also the continuing increase in IP cases and “case specific” investigations such as the one resulting from the FBI raids in various Michigan locations of Japanese suppliers. 

We have 1,800 Posse List members on the CJK lists (attorneys and paralegals) and based our market research and feedback from Posse List members there are 15-20 CJK projects in the major CJK document review markets:  Boston, Chicago, Detroit, DC, LA, NYC, and San Francisco.  

Note: the highest paying agency for Japanese fluent contract attorneys with a continuing demand in DC, NYC and elsewhere: Merrill Brink.  They are paying $63 an hour plus OT.  They also offer a signing bonus and completion bonus.  They also have a need for other languages.  Contact: Vanessa.Vidunas@merrillcorp.com 

And there is boatload (iPad load?) of litigation brewing involving Google, Apple and some other high-tech stalwarts.  We have attended several telecom/media conference in the U.S. and Europe and we’ll post more on that in a later edition.

One of the side benefits to LegalTech is your immersion in a “let’s get it done, here’s the technology, here’s how to do it” environment and attitude.  Well, that’s just New York, I guess.  As a native son growing up in New York I lived that attitude everyday.  But the week at LegalTech (we had a series of follow-up interviews Thursday and Friday) was a welcome respite from America’s increasingly dysfunctional governmental mechanisms and increasingly rancorous political culture.  Having lived in Europe these past 5 years I don’t miss that 24/7 mindless media coverage.  Sometimes I think the problems the U.S. faces are intractable and beyond the capacities of our ramshackle political mechanisms.  But this visceral and nihilistic “us vs. them” mentality is deafening and infantile. 

Sorry, I digress. 

New York is an internationally influential media capital, and includes some of the most important newspapers, largest publishing houses, most prolific television studios, and biggest record companies in the world. It is a major global center for the television, music, newspaper, book and magazine publishing industries.  It is also the largest media market in North America (followed by Los Angeles, Chicago, and Toronto).  Some of the city’s media conglomerates include Time Warner, the News Corporation, the Hearst Corporation, and Viacom. Seven of the world’s top eight global advertising agency networks are headquartered in New York.  And three of the “Big Four” record labels are also based in the city, as well as in Los Angeles.  Plus, one-third of all American independent films are produced in New York. 

And it is the U.S. base for Thompson Reuters whose Chief Strategy Officer, David Craig,  was on Wednesday’s keynote presentation “I3: The New Convergence of Intelligence, Intuition and Information” with Malcolm Gladwell and Dr. Lisa Sanders (see, I did have a LegalTech tie-in).  The three speakers recounted the myriad ways in which technology can be used to help supplement the innate decision-making capabilities of experts in their respective fields.  For our post on that presentation click here. 

The audience was filled with media folks and we had the opportunity to chat with several including some from Thompson Reuters.  We chatted about the internet, traditional media, social media — and Google.  All of these topics we have posted about on The Posse List and we have Tweeted about, especially social media vis-à-vis e-discovery issues, and its use as a propagation platform for information about the legal biz.  

We discussed the fact that the internet may kill newspapers but it is not clear if that matters. For society, what matters is that people should have access to news, not that it should be delivered through any particular medium; and, for the consumer, the faster it travels, the better.   But the trouble is nobody knows how to make money in this new environment.  So that raises questions about how much news will be gathered. 

So an interesting announcement came out on Monday regarding an agreement that had been reached by Associated Press and Yahoo regarding the licensing terms by which Yahoo will pay AP for the right to continue to post AP contents on the Yahoo site.  The terms of the arrangement were not revealed.  The full press release click here. 

According to those we interviewed, AP has yet to reach a parallel licensing agreement with either Microsoft or Google.  And it appears that Google has for the moment suspended posting new AP contents on its site. 

Neil Wilkof, a partner at Herzog, Fox, and Neeman who heads the intellectual property and information technology team, has analyzed this development and he makes the following points: 

1. Yahoo, rather than Google or Microsoft, has the largest Internet audience for news (as opposed to social networking or Internet search).
2. AP has provided content for Yahoo since 1998. That said, AP is the not the sole source of news contents for Yahoo, which also makes use of contents from Reuters as well as from Yahoo’s own news staff.
3. The problem for AP is that a material portion of its revenues has come from the print media and broadcasting. AP has yet to find the financial structure that can compensate for the loss of revenue from these traditional sources of income in an age of the migration of news to various on-line platforms.
4. Hence, the importance of reaching financially satisfactory licensing arrangements with the leading on-line platforms for the distribution of AP-generated contents.  Short-hand:  finding ways to pump internet companies for more money.  That said, Yahoo is less financially robust than either Google or Microsoft.
5. While the details of the license were not made available, the report did mention that AP wants “greater cooperation” to ensure that its contents are not being used in an unauthorized manner and is contemplating a multi-tiered arrangement (at least in the future) whereby stories containing exclusive contents might charged more than news items, the contents of which are available from other sources as well.
6. Separately, Yahoo has reached agreement with U.S. newspapers that own AP in an arrangement to sell more advertising.

 And Then There is Google.  Quoting Neil:  “The AP report ends with an interesting juxtaposition. On the one hand, the report quotes a statement from Yahoo that the company “has always recognized the value and importance of original, authoritative news. We are pleased Yahoo and AP will continue that valued relationship” and then on the other hand the report concludes with the following comments about Google: (i) many publishers believe Google has profited unfairly from their newspapers by drawing upon snippets of their stories to draw traffic so it can sell more of its ads; (ii) AP and Google quarrelled for several years about the way that Google summarized AP news items; and (iii) Google believes that it in fact drives traffic to newspaper sites. Reaching agreement with Yahoo is one thing, reaching an arrangement with Google may be quite another.” 

So we have companies like AP fighting a declining print media and a challenging online environment and trying to find a role for themselves in a Google-dominated world. 

We hope to have a longer interview with Neil in the coming weeks but in the meantime some links of note: 

Does journalism exist? 

Social media chiefs converge in Davos, finding big profits still elusive despite heavy use

“Social Networking: Learn the Rules of Engagement” (from ILTA)

A World of Connections  (special report on social media from The Economist)