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March 9, 2010 – California Lawyer Magazine announced today that Altshuler Berzon LLP partner Michael Rubin has been named a 2010 “California Lawyer of the Year” award recipient in two separate categories, for his successful representation of a former death row inmate who is being released from prison after 27 years of incarceration, and for his efforts in obtaining the largest False Claims Act case settlement in Department of Education history.
The award summaries stated:
“Category: CRIMINAL LAW. RUBIN won a rare reversal – of both a death sentence and the defendant’s original conviction – which will set James Horton II free later this year. The employment attorney began working on the case in 1985, getting the California Supreme Court to overturn Horton’s death sentence in 1996 – breaking a string of 110 straight affirmations, and then pursuing numerous state and federal appeals of the original conviction.”
“Category: FALSE CLAIMS ACT. These lawyers won a $78.5 million whistleblower settlement, the largest in U.S. Department of Education history, for a case involving improper incentive pay to recruiters at the University of Phoenix. In addition, the department has begun reviewing its rules on incentive compensation with an eye to reforms.”
Click here for California Lawyer Magazine article on these awards.
The death penalty case began in 1985, when the California Supreme Court appointed Rubin and former Altshuler Berzon partner Marsha Berzon to represent James Horton II, who had been convicted of murder the previous spring and sentenced to death in the San Quentin gas chamber. Over the next quarter century, several generations of Altshuler Berzon attorneys and staff members under Rubin's direction worked tirelessly to overturn Horton's sentence and conviction and to secure his eventual freedom. The legal team obtained a death penalty reversal on direct appeal in People v. Horton, 11 Cal.4th 1068 (1996), the first such reversal by the California Supreme Court after 110 straight affirmances since People v. Holloway, 50 Cal.3d 1098 (1990). (The Court held that defendant’s prior juvenile murder conviction in Chicago in 1973 was unconstitutionally obtained). After one state and two federal habeas appeals, the team then obtained a conditional reversal of defendant’s conviction in Horton v. Mayle, 408 F.3d 570 (9th Cir. 2005), establishing that the People’s failure to disclose an immunity deal with its “star witness,” if proven, was a “material” nondisclosure under Brady v. Maryland. Because the People disputed whether any deal was offered, Altshuler Berzon (assisted by attorney Bill Genego from Santa Monica) pursued an evidentiary hearing and won an outright reversal of defendant’s conviction, which the district court affirmed, without further appeal by the State. Horton v. Mayle, No. CV 97-7298-MRP (SH)( C.D. Cal. 2005). The L.A. District Attorney then decided to pursue retrial despite the passage of years. Again, Altshuler Berzon attorneys responded (this time, assisted by attorney Andy Stein from Bellflower), with a series of innovative pretrial motions in Norwalk Superior Court alleging prejudice to defendant’s due process rights resulting from the extraordinary State-caused delays in certifying the appellate record and in setting the case for retrial. These motions were supported with 144 exhibits, 101 stipulations, and transcripts from four more days of evidentiary hearings. On November 3, 2009, the Superior Court judge granted those motions in part by ruling that the People could not call its former “star witness” (described by the Ninth Circuit as “the glue that held the prosecution’s case together,” 408 F.3d at 579-80 & n.4) or refer to any of his prior testimony. The court also took Altshuler Berzon’s other pretrial motions under submission. Two days later, the People gave up seeking an LWOP sentence and offered defendant a plea deal that will result in his release from prison in late 2010 – after 27 years of imprisonment, 10 on death row. According to experienced criminal defense attorneys, the Horton case is the only case in California history in which an inmate condemned to death has won his freedom as a result of the efforts of a single lawyer and law firm that stuck with the defendant throughout the entire appellate, habeas, and retrial process.
The False Claims Act case was United States ex rel. Hendow v. University of Phoenix, a case alleging that the University of Phoenix obtained billions of dollars in federal student loans and Pell Grants while making improper incentive payments to admissions recruiters. That False Claims Act case settled for $78.5 million, making it the largest False Claims Act settlement ever, and the second largest settlement of any whistleblower case in which the U.S. government declined to intervene. California Lawyer Magazine selected the University of Phoenix case as one of 27 matters for which CLAY awards were given in 2010 (along with the state and federal Horton litigation), and honored the four co-lead counsel with CLAY awards: Altshuler Berzon's Michael Rubin; solo practitioner Nancy Krop, Cliff Palefsky of McGuinn, Hillsman & Palefsky, and Robert Nelson of Lieff, Cabraser, Heimann & Bernstein. Also working with Rubin on the case were Altshuler Berzon partner Jonathan Weissglass and associate Peter Leckman.
In addition to receiving two CLAY awards in 2010, Rubin also received a previous CLAY award in 2002 for his successful representation of 30,000 Chinese, Bangladeshi, and Filipino garment workers in precedent setting litigation challenging sweatshop conditions in the Saipan garment factories. Rubin is one of only 15 lawyers in the history of California Lawyer Magazine to have received two “California Lawyer of the Year” awards, and is believed to be the only lawyer ever to have received three of these prestigious awards.