All posts by Jeff Berns

Scholars Argue Defamation Suit Should Proceed

August 8, 2018

Spiegel & McDiarmid attorneys Katie Mapes and Kat O’Konski served as amicus counsel to First Amendment and media law scholars who urged the U.S. District Court for the Western District of Virginia to allow a defamation suit to proceed against Infowars’ Alex Jones and others.  The brief was featured in an August 8, 2018, New York Times article.  Gilmore v. Jones, Case No. 3:18-cv-00017, arises out of the riots in Charlottesville, Virginia in August 2017, where Plaintiff Brennan Gilmore filmed James Alex Fields, Jr. deliberately driving into a crowd of peaceful protestors, killing Heather Heyer and injuring many others.  After hearing that media outlets were suggesting that the attack was an accident or an act of self-defense, Mr. Gilmore shared his account of the attack with the public via Twitter.  In response to Mr. Gilmore’s eyewitness account, Defendants targeted Mr. Gilmore with publications alleging false and absurd conspiracy theories implicating Mr. Gilmore in the planning of the attack.  Mr. Gilmore filed a defamation suit in federal district court in March 2018.

First Amendment and media law scholars Lyrissa Lidsky, Tamara Piety, David Strauss and Carlos Ball urged the court to reject the Defendants’ motions to dismiss, and argued that the Defendants’ publications are not protected by the First Amendment because they were written with the intention of destroying Mr. Gilmore’s reputation for the benefit of their own political agenda.  While they acknowledged that the protection of speech is “a priority of the first order,” the First Amendment and media law scholars argued that the Supreme Court has never endorsed the view that knowingly false statements causing direct, legally cognizable harm to another should be protected.  Not allowing the suit to proceed, they said, would create a dangerous precedent by granting undue privilege to malicious and false statements of fact at the expense of a private individual who stepped forward with newsworthy information in the wake of a troubling event.

A copy of the brief is linked below.

Federal Appeals Court Upholds FERC Order Requiring Equitable Treatment of Mississippi Ratepayers

June 1, 2018

In the attached opinion issued June 1, 2018, by the U.S. Court of Appeals for the D.C. Circuit, Judge Sentelle affirms FERC’s decision to require Entergy Arkansas to continue sharing with its Mississippi and Louisiana affiliates, notwithstanding its withdrawal from the Entergy System Agreement, the benefits of a settlement agreement with the Union Pacific railroad.  The settlement arose from a train derailment that increased fuel costs paid by all three states’ ratepayers.  Spiegel partner David Pomper argued the case for multiple state commission intervenors supporting FERC; Steve Pearson also worked on the case.

You may access the decision here or at the link below.

Port of Portland Prevails in Dispute over Payment of PDX’s Utility Bills

May 24, 2018

The Federal Aviation Administration rejected claims brought against the Port of Portland by the Air Transport Association of America d/b/a Airlines for America and the airlines serving the Portland International Airport.  At issue was whether the Port, which owns and operates PDX, is violating federal law when paying certain utility charges to the City of Portland as part of PDX’s operating costs.  The FAA’s Final Agency Decision is linked below.

PDX sits within City limits and receives water and sewer services from the City.  The dispute arose when the City’s combined sewer/stormwater/water bill began breaking out separate charges to cover the cost of managing stormwater on public property throughout the City, and the cost of participating in the environmental investigation and cleanup of a Superfund site on the banks of the Willamette River.  These costs are allocated by formula to all City water and sewer utility ratepayers, including the Port as PDX’s owner.

The airlines argued that airport revenue cannot be used to pay for the disputed utility charges because they are being imposed to pay for things that are not directly or substantially related to PDX, in violation of the federal airport revenue use restrictions.  Alternatively, the airlines argued that the disputed utility charges are an impermissible tax or fee on air transportation at PDX, in violation of the federal Anti-Head Tax Act.

FAA adopted the Port’s legal reasoning, concluding that “payment of customary utility fees that do not target the airport, that constitute normal operating costs of any entity operating in the jurisdiction, that convey value upon all of the community, including the airport, and that transparently allocate costs on a reasoned basis do not violate Federal law or obligations as they relate to the FAA.”

Pablo Nüesch, Peter Hopkins, and Jessica Bell represented the Port of Portland before FAA.

Spiegel Attorney Speaks on Panel at EBA Annual Meeting

May 7, 2018

Cindy Bogorad participated in a panel discussion at the Energy Bar Association’s 2018 Annual Meeting and Conference, Monday, May 7. The panelists explored the recent impacts of mergers and acquisitions on energy markets and the energy industry as a whole. Special attention was paid to FERC’s 2016 Notice of Inquiry on assessing (among other things) market power in transactions under Federal Power Act § 203.  Joining her on the panel were Mark Niefer from the Department of Justice’s Antitrust Division, FERC’s Amery Pore, and Mike Naeve, of Skadden, Arps, Slate, Meagher & Flom. For more information about the conference, please visit EBA’s conference page (http://www.eba-net.org/education-events/2018annualmeetingconference/).

Chambers Again Recognizes Spiegel & McDiarmid LLP as a Leading Law Firm

May 3, 2018

Bogorad, Pomper and Strauss Also Ranked

We are pleased to announce that in its 2018 rankings Chambers & Partners has once again recognized Spiegel & McDiarmid LLP as one of the nation’s leading law firms.  In writing about the firm, Chambers quotes respondents as categorizing our lawyers as “an excellent team who work very well together; they are proactive, excellent writers and quickly provide briefs and memos of a superior quality.”  Chambers also states that our clients “rely on [Spiegel attorneys] for the depth of their expertise and the resources they bring to the table.”

Chambers recognizes Cynthia S. Bogorad, David E. Pomper and Scott H. Strauss individually as among the top lawyers in the United States for 2018 in the area of “Energy: Electricity (Regulatory & Litigation) — Nationwide.”

Chambers ranks “the world’s best lawyers and law firms based on in-depth, objective research” and extensive interviews with clients and colleagues.  Their guide is considered the premier survey of attorneys and law firms in the country.

Bogorad, Mapes, Schwarz, Strauss Recognized by “Super Lawyers”

April 24, 2018

Spiegel & McDiarmid LLP is proud to announce that partners Cindy Bogorad, Jeff Schwarz and Scott Strauss have been selected as 2018 Washington DC Super Lawyers and partner Katie Mapes has been named a “Rising Star.”  Super Lawyers, a Thomson Reuters business, is a rating service of outstanding attorneys from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  Super Lawyers are selected through a process involving independent research, peer nominations and peer evaluations.