Feds Prevail in Spat with Former Acting Solicitor General

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Written By admin at Monday, May 21st, 2012

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Neal Katyal

The Justice Department has won its bid to bar former acting Solicitor General Neal Katyal from representing an electronics executive seeking to overturn his conviction in an important criminal price-fixing case.

The two sides had been locked in an unusually public—and testy—dispute over the reach of an ethics law that restricts the activities of former government officials.  They disagreed vehemently over whether Mr. Katyal, now with the Hogan Lovells law firm, was seeking to switch from the prosecution team to the defense team.

At a hearing Friday, U.S. District Judge Susan Illston in San Francisco ruled Mr. Katyal could not represent former AU Optronics Corp. executive Hui Hsiung because he had already participated in the case while serving as the government’s top lawyer at the Supreme Court.  She is not expected to issue a written opinion.

As solicitor general, Mr. Katyal’s name automatically appeared on a Supreme Court brief last year in which the government opposed efforts by AU Optronics and others to quash grand-jury subpoenas over alleged price fixing on LCD screens used in computers and other electronics.  The Justice Department said documents obtained from those subpoenas helped convict Mr. Hsiung in March.

Both sides agreed Mr. Katyal had no personal involvement in the subpoena dispute, but the department said that didn’t matter because he supervised other government attorneys who did participate.  The department said Mr. Katyal could advise other attorneys for Mr. Hsiung behind the scenes, but could not argue the case himself.

Mr. Katyal, who left the department in June, said the subpoena case and the prosecution of Mr. Hsiung were two different matters.  He argued the government’s effort to keep him out of the case was unprecedented and lacking in common sense.

Mr. Katyal and the Justice Department both declined to comment on the judge’s ruling.

In seeking to overturn their convictions, Mr. Hsiung and AU Optronics are making sweeping legal arguments that could narrow the reach of U.S. antitrust law.

Mr. Katyal, a seasoned appellate lawyer, would have added significant firepower to the defense.  This time last year, he was a key player in the Justice Department’s defense of the Obama administration’s health care law.

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