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. Wdoctor 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 in- cluding 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. 52 N A T I O N A L J O U R N A L 1 0 / 2 1 / 0 6 R I C 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 1 0 / 2 1 / 0 6 N A T I O N A L J O U R N A L 53 Lobbying &Law 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.

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