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Monday, April 10, 2006

Law - Yet more on: Those fighting over wine fees include Indiana law professor

Updating this March 28th ILB entry about disputes between the winning lawyers in the U.S. Supreme Court wine shipping case, Granholm v. Heald, is a story today by Tony Mauro in Legal Times. Some quotes:

A fee dispute broke out among lawyers earlier this year over how much money the winning team, which included Kirkland & Ellis’ Kenneth Starr and former Stanford Law School Dean Kathleen Sullivan, should receive from the state of Michigan, which lost the case. At stake: more than $1.5 million in fees. * * *

The wine dispute, fueled by the growth of small wineries and Internet sales, was an uphill challenge to the entrenched system of alcohol sales and regulation that has been in place in states since the end of Prohibition. In 1998, Indiana University School of Law professor James Tanford and Indianapolis lawyer Robert Epstein, a former wine critic, devised a strategy to challenge the bans by filing cases in federal circuits nationwide.

Their hope for a split among the circuits that would propel the issue to the high court came to fruition with a 6th Circuit ruling in 2003 that struck down Michigan’s ban and a 2nd Circuit decision six months later that upheld New York’s. The New York case had been filed separately by the Institute for Justice on behalf of Virginia wine maker Juanita Swedenburg, who wanted to sell her wines to fans in New York.

When Michigan appealed to the Supreme Court, the wineries’ legal team grew to include Starr, the former solicitor general. Starr had already worked on the issue on behalf of the Coalition for Free Trade, a group representing California wineries.

But disagreements soon broke out, according to filings in the fee dispute. Even though Starr had undertaken what Kirkland described as “the Herculean effort” of coordinating the litigation strategy, Tanford produced his own brief for the Court, which Kirkland found inadequate. “Mr. Tanford’s unilateral draft came as a shock to the legal team,” Kirkland told the Michigan judge. After “significant persuasion,” Tanford relented and agreed that another draft written by Kirkland lawyers and Kathleen Sullivan, who had also joined the team, would be the one to go to the Court. * * *

The biggest dispute among the lawyers was yet to come — over who should present oral argument to the Court. Tanford said in his brief that as the original lawyer for the Michigan plaintiffs, he planned to argue the case. But he agreed to participate in a “beauty contest” in which he and other contenders would mock-argue the case before clients and other lawyers. In addition to Tanford, Starr, and Sullivan, the Institute for Justice’s Clint Bolick also participated.

Bolick said last week that the Coalition for Free Trade, Starr’s client, undertook a “ruthless effort to get rid of Tanford and me as advocates. It was the most perverse instance of Supreme Court gamesmanship I’ve ever seen.” The beauty contest, he says, was “completely bogus.”

Bolick adds, oddly enough, that it was Sullivan, not Starr, who was the “preordained beneficiary” of the pressure. But it was not Sullivan who elbowed the others aside, he says. The California winery owners, Bolick says, wanted Sullivan — a former protégé of liberal Harvard Law School professor Laurence Tribe — not Starr, to argue for political reasons. Sullivan could not be reached for comment. * * *

It was only after the victory that disagreements surfaced again, in contentious discussions between Tanford and Kirkland over how much to ask for from the state of Michigan. Under federal law, prevailing parties in certain suits can recover legal fees from government agencies. With little notice to Kirkland, Tanford filed a motion on his own seeking $1.2 million for all the attorneys involved, including only $65,812.50 for Starr and the rest of the Kirkland team. He asked for $418,480 for himself and $304,940 for Epstein.

And there is much more.

Posted by Marcia Oddi on April 10, 2006 07:45 PM
Posted to General Law Related