Supreme Court Spinners

Lobbying&Law Supreme Court Spinners

By Bara Vaida

hen Mark Corallo opened that includes Apple Computer, Intel, Mi- I What’s Washington’s latest his copy of The New York crosoft, Micron Technology, and Oracle, PR trend? It’s pitching reporters Times on March 28, the supported eBay’s position challenging street-smart Republican spin the appeals court’s ruling. on Supreme Court cases. dWoctor did a little touchdown dance. Corallo says his communications firm, The paper had published an editorial Corallo Media Strategies, was hired to ex- I Experts say that strong media supporting the legal position of several plain eBay’s position and garner media of Corallo’s clients in a high-tech patent attention because “the justices read the coverage can influence the case before the Supreme Court. newspapers.” Former Justice Sandra Day justices and their clerks. The editorial appeared the day before O’Connor was the best example of that, the case was to be argued, and it came af- he says, noting that during oral arguments ter weeks of work by a team of lawyers and she would ask the dueling lawyers, I Some practitioners shy away consultants that included the 40-year-old “‘Where are the people?’ on issues of law.” Corallo, a former Justice Department Corallo’s confidence that the nine jus- from talking about their work. spokesman. The many phone calls to re- tices and their clerks pay attention to porters and newspaper editorial boards what the media say about cases chal- explaining the case—in which a small Vir- lenges conventional wisdom. Justices ginia company called MercExchange had aren’t elected, and ethics rules dictate won a federal appeals court decision in its that no special-interest group can direct- suit against Silicon Valley giant eBay— ly lobby them. Famed lobbyist Tommy had paid off. Corallo’s client, a coalition Corcoran found that out three decades ago when he tried to press Justices Hugo L I Z Black and William Brennan into support- L Y

I Mark Corallo N C ing his client, El Paso Natural Energy. His H efforts were rebuffed, and the pressure ultimately backfired against his client, as Bob Woodward and Scott Armstrong re- counted in their book The Brethren. At the same time, the opaqueness of the Court’s decision-making process means that no one can say for certain what influences the justices. “The Court floats on a kind of sea of public opinion,” Justice Stephen Breyer said at a re- cent Georgetown University Law Center conference. That’s why the idea of including a public-relations campaign in an overall strategy for winning at the Supreme Court can’t be dismissed, say a number of lawyers, academics, and, of course, the spin doctors themselves. “Since we don’t know what makes a dif- ference, if you have enough resources to hire a public-relations consultant, then why not?” says Lawrence Baum, a political I “I’m hoping to be the guy that people turn to when they have these cases scientist at Ohio State University and the before the Supreme Court,” says the former Justice Department spokesman. author of The Puzzle of Judicial Behavior.

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Though Supreme Court-targeted PR H jury” without an injunction, be-

I A Robert Bork Jr. R is an inexact science, it is a small but D cause it didn’t have a business us- A . emerging part of the established B ing the patents. L O O public-relations and litigation fields. M The U.S. Court of Appeals for While many people are reluctant to the Federal Circuit, which hears talk about it on the record, citing the patent appeals, reversed the district sensitivity surrounding any legal dis- court, saying that a permanent in- pute, signs abound that the practice junction should be issued when may be picking up steam. infringement has been found. Linda Greenhouse, the veteran Lawyers for eBay appealed that de- Supreme Court reporter for The cision to the Supreme Court, charg- New York Times, says she has noticed ing that the appeals court ignored a “new phenomenon, which is the existing patent law, which gives hiring of PR firms to position judges leeway to weigh the circum- clients” hoping to get the Court to stances in making a decision. agree to hear their cases. “I was in- High-tech companies thought the undated with calls all summer from case could have far-reaching effects PR people saying they wanted pub- because of a trend in the patent licity for a pending case,” she says. world called “patent trolling.” It’s a In addition to Corallo Media pejorative term to describe patent Strategies, firms that confirmed to holders whom some accuse of abus- National Journal that they have ing the legal system to extract mon- worked on Supreme Court cases I “If a case is getting some notoriety in the ey from alleged patent violators include APCO Worldwide, the press … one can only think that [the information] rather than using patents to create Bork Communication Group, the seeps into the thinking of the clerks and justices.” products. The companies, fearing Brunswick Group, and Ogilvy Pub- that the MercExchange ruling lic Relations Worldwide. How lucrative investigated the Clinton White House on might accelerate the trend, filed an amicus the business may be isn’t clear. But various issues. Corallo was part of George curiae brief in support of eBay. Corallo, the newest entrant, says he and W. Bush’s team in Florida during the 2000 To write the brief, they hired former his team split a fee of $200,000 to recount, and he has represented Karl Solicitor General Ted Olson and former $300,000 for their work on the eBay Rove during the government’s investiga- Independent Counsel Kenneth Starr. case. tion into the leak of former CIA operative Delrahim reasoned that drumming up “It’s increasingly important for interest Valerie Plame’s identity. some media attention on the brief would groups to build a political case in addition In early March 2006, Corallo got a call help to foster an environment favorable to their Court case,” says Jamie Moeller, from Makan Delrahim, a lawyer with to his client’s policy goals. Congress has managing director for public affairs at Brownstein Hyatt & Farber and a former been considering changes to patent law, Ogilvy Public Relations, because Supreme deputy assistant attorney general for an- and the Court’s decision was likely to Court decisions have a political impact. titrust. Delrahim, who had worked with have an impact on lawmakers’ decisions. Corallo at Justice, was representing high- Delrahim also thought that the attention ere’s a look at the business tech companies lobbying on patent re- might help in his effort to persuade So- through the eyes of two people— form; his clients were interested in Merc- licitor General Paul Clement to submit a HCorallo and Robert Bork Jr., the Exchange’s suit against eBay. Like many brief to the Supreme Court in support of son of Supreme Court nominee Robert aspects of the legal system, patent law eBay’s position. “I think the solicitor Bork. A former journalist and aide to has been under stress as the result of general’s policy position can be animat- then-U.S. Trade Representative Carla new technology, and the case offered an ed by public opinion—[that is] colored Hills, the younger Bork specializes in opportunity for the Court to clarify a and enlightened by the public debate, public affairs related to litigation. murky area of the law. once a legal error has been found,” he When Corallo left Justice in early 2005 At issue was whether judges should au- said, when asked whether he thinks that after three years as chief spokesman for tomatically enjoin companies that in- Clement pays attention to news stories. then-Attorney General John Ashcroft, he fringe upon another firm’s patents from Delrahim knows the process that leads took a Rolodex filled with the phone continuing to engage in business related the solicitor general to write a brief. At numbers of editorial writers, cable and to that patent, or whether awarding Justice, he searched for interesting lower- broadcast news producers, and print re- monetary damages is a sufficient penal- court rulings that he thought the Bush porters who had called him with ques- ty. A federal district court had found administration might want to support at tions. “I was good at translating legal is- that eBay had infringed upon MercEx- the Supreme Court and then coordinat- sues to reporters,” he says. He’s also well change’s patent on a method for con- ed with other government agencies to connected to Washington’s political estab- ducting fixed-price auctions. The court develop a comprehensive argument that lishment. Before going to Justice, Corallo ordered eBay to pay damages, but didn’t Justice should take a position in a case. handled press at the House Government grant MercExchange’s request for an au- As the government’s lead attorney, the Reform and Oversight Committee under tomatic injunction, ruling that MercEx- solicitor general carries so much weight then-Chairman Dan Burton, R-Ind., who change wouldn’t suffer “irreparable in- with the justices that whoever holds that

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position is regarded by Court observers environment apart from a cert petition,” ing that getting pre-cert publicity is hard as the “10th justice.” Bork says. “One doesn’t know how much as well. In June, Microsoft hired the Corallo, who hopes to write a novel influence it has, but if a case is getting Corallo-Neusner team to work on a someday, is passionate about intellectual- some notoriety in the press, then it’s an patent case that the software company property issues. He quickly signed onto important case, and one can only think hopes the Supreme Court will hear. Delrahim’s team. He called Noam Neus- that it seeps into the thinking of the AT&T has sued Microsoft’s non-U.S. op- ner, a former domestic-policy speech- clerks and justices. It won’t make a differ- erations over software code shipped writer for President Bush who describes ence in itself, but it might provide that abroad that allegedly violates a U.S. his talent as writing opinion editorials little extra help.” Carter Phillips, a man- patent. The suit raises questions about that “boil complex arguments down to aging partner at Sidley Austin who once the scope of U.S. patent law. their core.” Corallo, Neusner, and Del- served as a law clerk to then-Chief Justice rahim went to work promoting the eBay Warren Burger, agrees. “When you are orallo says he’s been calling his case to the media. seeking Supreme Court review, you can usual sources in the media, and al- Fortunately for Corallo’s team, patent cite it [an article] in a petition,” he said. Cthough they express interest in the infringement already had reporters’ at- Even better is the news story that spurs case, “they say it isn’t news.” Call back tention. Weeks earlier another patent a group to file an amicus brief in support when the Court agrees to hear the case, dispute, this one involving the popular they say. Corallo also has to try to per- BlackBerry wireless device, was headline suade journalists who are already busy news; in early March, BlackBerry’s mak- writing about cases the Court has agreed er agreed to pay $612.5 million to settle I understand to hear. Times reporter Greenhouse said a patent dispute that also raised ques- she won’t write about a case until the tions about the clarity of the law. “that these public- Court grants cert. “I understand that Whether it was fortuitous timing or the relations people these public-relations people want pub- work of Corallo, Neusner, and Delrahim, licity for a pending cert, as there are so more than 150 stories on the eBay case want publicity few cases that the Court takes,” she says. appeared in March, including editorials for a pending cert.… “But I say to them, ‘I don’t want to be in The New York Times and The Wall Street used that way.’ ” Journal. The solicitor general weighed in But I say to them, Corallo and Neusner keep making calls on the case, arguing that although eBay ‘I don’t want to be to the technology and legal press, as well had violated MercExchange’s patents, the as to business-related publications and appeals court didn’t apply the correct used that way.’ television shows. Neusner has made some legal test in considering whether to issue —New York Times reporter”Linda Greenhouse connections in a new realm of litigation an injunction. public relations where he hopes to create On May 15, the Supreme Court sent some buzz: Internet blogs. He argues that the case back to the district court, noting the AT&T suit involves “economic nation- that an injunction doesn’t have to be is- of a client’s request for a Supreme Court alism,” because the outcome of the case sued if an infringement violation has hearing, because so few petitioners com- could encourage U.S. companies to send been found, and ordered the court to re- bine their request with an amicus brief. their design and manufacturing process- consider MercExchange’s request for an “It’s a solid indication that this is an issue es overseas rather than face potential liti- injunction. “I think the editorials had an of greater significance,” Phillips says. gation in the United States. The PR duo impact,” Corallo says. Bork represented Festo, the U.S. unit of hopes to spark interest by tying the case a German magnetic cylinder manufac- to national policy. “We are knocking our- ork has employed a similar strategy turer, in a 2001 patent dispute involving selves out with this, and it’s been the low- in terms of reaching out to editori- SMC, a Japanese-owned cylinder maker. est yield” in terms of the number of sto- Bal writers and reporters. He de- Festo wanted the Supreme Court to re- ries published for hours worked, Corallo scribed an effort to get a case reviewed by view its case, and the company turned to says. the Supreme Court. The Court grants a Bork for help. At the end of September, Solicitor review, “a writ of certiorari,” to only a “Everyone said we wouldn’t get cert, General Clement recommended that small percentage of the petitions filed so what we tried to do was position it as the Supreme Court review the AT&T- each term. For example, when the the biggest patent issue known to Microsoft case because of its broad Court’s current term began on October mankind with important implications, patent implications. The recommenda- 2, the justices denied certiorari to 1,900 whatever the outcome,” Bork explains. tion makes it more likely that the Court cases and agreed to hear 37. As part of His work led to numerous stories in the will grant cert, a decision that could the process of “getting cert,” lawyers file business press and several editorials, in- come by the end of October. petitions outlining their argument, and cluding one in The Wall Street Journal, “I really like sinking our teeth into this some Supreme Court lawyers believe that “which is rare, because people don’t like work,” Corallo says. “Little by little, I’m if they can convince the Court that the to write about cert petitions,” Bork says. hoping to be the guy that people turn to case is of broad national interest, they The Court agreed to hear the case in when they have these cases before the stand a better chance that the justices will June 2001. Supreme Court.” I hear it. Getting the Supreme Court to hear a “It’s helpful to create an information case is difficult, and Corallo is discover- [email protected]

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