http://www.cptech.org/ip/health/politics/revolvingdoor.html


May 10, 2000
Version 1.0

This page highlights the revolving door between U.S. government
agencies, the U.S. Congress, and the pharmaceutical industry. The
following former government officials now work at IFPMA, PhRMA, or
law firms and lobbying firms that represent the pharmaceutical
industry. The information on clients represented by the following
individuals is heavily indebted to the Center for Responsive Politics
website.

Corrections or suggestions to Thiru Balasubramaniam thiru@....


Daniel L. Spiegel 	 US Permanent Representative to the  U.N.,
State, Legislative Assistant to Senator Hubert Humphrey and Senator
Alan Cranston  	 Akin, Gump, Strauss, Hauer & Feld, L.L.P.
American Home Products

  Donald C. Alexander  Commissioner of Internal Revenue,
Department of the Interior  Akin, Gump, Strauss, Hauer & Feld,
L.L.P.  Johnson & Johnson

  S. Bruce Wilson 	 Assistant U.S. Trade Representative for
Intellectual Property, Services and Investment, Assistant U.S. Trade
Representative for Industry and Services, Staff Director-Subcommittee
on Trade (House), Democratic Trade Counsel-Subcommittee on Trade
(House) 	 Akin, Gump, Strauss, Hauer & Feld, L.L.P.
American Home Products

  Edward J. Allera  FDA  Akin, Gump, Strauss, Hauer & Feld,
L.L.P.  Johnson & Johnson

  Frank J. Donatelli 	 USAID, Deputy Assistant to President Reagan
for Public Liaison, Assistant to President Reagan for Political and
Intergovernmental Affairs  Akin, Gump, Strauss, Hauer & Feld,
L.L.P.  Johnson & Johnson

  Barney J. Skladany, Jr.  Department of Justice  Akin, Gump,
Strauss, Hauer & Feld, L.L.P.  Johnson & Johnson, Warner-Lambert

  Thaddeus J. Burns 	 USPTO, U.S. Intellectual Property Attaché-
USTR, Geneva 	 Akin, Gump, Strauss, Hauer & Feld, L.L.P .

  Elizabeth A. Hyman  Special Assistant to Attorney General Janet
Reno, Associate Counsel to Vice President Al Gore, Assistant Counsel-
USTR, 	 Akin, Gump, Strauss, Hauer & Feld, L.L.P  American
Home Products

http://www.commoncause.org/publications/022598chart.htm

Soft Money Contributions to the NRSC
of $10,000 or More, by Industry
1/1/97 - 12/31/97

Lawyers & Lobbyists  $127,775

Akin Gump Strauss Hauer & Feld 10/28/97 $15,000
Akin Gump Strauss Hauer & Feld 4/15/97         $10,000

http://www.commoncause.org/soft_money/study99/chart8.html

GEORGE W. BUSH'S "PIONEERS"
(AS OF FEBRUARY 2000)

Soft money totals include contributions made by associated companies
and/or executives to Republican national party committees between
January 1, 1999 and December 31, 1999.

James Langdon  Washington, DC  Partner, Akin Gump Strauss Hauer &
Feld  $97,550

http://www.hisp.com/may00/roadtopower.htm


Murguia vows Gore won't make the typical Democratic mistake of taking
the Hispanic vote for granted. So does fellow Mexican American José
Villarreal, a 46-year-old attorney who is Gore's national campaign
treasurer. Now a partner at the San Antonio office of Akin, Gump,
Strauss, Hauer & Feld, Villarreal has been involved in Democratic
presidential campaigns since 1988, when he served as Texas political
director for Mike Dukakis.

When Gore asked him in late 1998 to help him raise campaign money,
Villarreal says he "didn't have a choice" but to accept a job
complicated by allegations that, in the past, Gore has resorted to
improper methods of raising campaign money.

"It's not the kind of thing you can turn down," Villarreal explains.

From his post deep in Bush territory, Villarreal has direct access to
the candidate and key decision-makers in Gore's campaign. Villarreal
advises Gore on how best to appeal to the Hispanic community, but
ultimately believes that Hispanics, like most other Americans,
will "vote their pocketbooks" in November. He hopes Latinos remember
that Gore was part of the administration that helped Hispanics, and
everyone else, "enjoy the fruits of a great economic expansion."

http://www.usdoj.gov/criminal/fara/fara2nd99/COUNTRY/COLOMBIA.HTM


Colombia

Akin, Gump, Strauss, Hauer & Feld, L.L.P., #3492

1333 New Hampshire Avenue, N.W.
Suite 400
Washington, DC 20036

Republic of Colombia (Embassy)

The registrant contacted members of Congress to discuss U.S. policy
toward Colombia, prospects of CBI legislation and related Colombia
developments.

$193,479.03 for the six month period ending December 24,1999

http://www.usdoj.gov/criminal/fara/fara2nd97/COUNTRY/BOLIVIA.HTM


Akin, Gump, Strauss, Hauer & Feld, L.L.P., #3492

1333 New Hampshire Ave., N.W.
Suite 400
Washington, DC 20036

Government of the Republic of Bolivia

The registrant communicated with U.S. Government officials regarding
recent election results in Bolivia and their effect on bilateral
policy issues

$109,375.00 for the six month period ending December 24,1997

http://www.akingump.com/practice/interprivate_content.html

Services to the Privatization Industry

Akin Gump provides a wide degree of representation to private parties
and independent sovereigns involved in the transfer of owner ship of
manufacturing or service-providing enterprises from governmental
entities to private parties.

The firm has represented clients in various aspects of privatization
activities in numerous countries, including Argentina, Azerbaijan,
Bolivia, Burundi, Chile, China, Colombia, Ethiopia, Honduras, Ivory
Coast, Mexico, Peru, Russia, Tanzania and Venezuela. These
privatization activities typically are part of larger governmental
efforts designed to convert a historically centrally-planned economy
to a market-based economy. Privatization efforts often result in the
freeing up of capital to reduce foreign debt, to increase service
efficiencies, most often in the utility sector, to control inflation
and to attract new sources of needed foreign capital.

http://www.tompaine.com/opinion/2000/08/03/

CHENEY'S CHIEF OF STAFF

Tyumen could have significant access to the White House should the
Bush-Cheney ticket win in the November presidential elections.
Tyumen's lead attorney at Akin Gump is James C. Langdon Jr., a
managing partner at the firm. He is also one of George W.
Bush's "Pioneers," one of the elite fund raisers who have brought in
at least $100,000 for the Republican presidential hopeful. Last June
in Washington, Langdon helped coordinate a $2.2 million fund raiser
for Bush, and agreed to help recruit 100 lawyers and lobbyists in the
capital to raise $25,000 each. Langdon's secretary told The Public i
that he was away on travel this week and could not be immediately
reached.

from Bartlett and Steele's Philadelphia Inquirer
series, "Who Stole the American Dream?"

http://www.philly.com/packages/america96/subscribers/FRAMES/A/A_ch_8.h
tml

Who Stole the American Dream?

Alexander Platt was associate general counsel of the office from 1983
to 1985. He then became a partner with the Washington law firm of
Akin, Gump, Strauss, Hauer & Feld, whose clients included the
Japanese External Trade Organization, Colombia Flower Council,
Fujitsu America Inc., Matsushita Electric Industrial Co. Ltd., Mazda
Motor Corp., and COECE, the Mexican business consortium.

http://www.akingump.com/library/publications/white_collar/recent_devel
opments.html


Court Dismisses Government's Money Laundering Action

On April 17, 2000, Akin, Gump successfully obtained the dismissal of
the civil penalty money laundering action filed by the U. S.
Attorney's Office against Banco Internacional. Banco Internacional, a
Mexican bank doing business in the United States, is one of 14
foreign banks implicated in DOJ's large-scale undercover money
laundering investigation known as "Operation Casablanca." None of the
other banks obtained such a judicial dismissal; most agreed to
multimillion-dollar settlements. Last fall, Akin Gump convinced U.S.
District Court Judge Audrey Collins to dismiss the government's
forfeiture action against Banco Internacional and to order returned
the $3.9 million in bank funds illegally forfeited and seized by the
government. Stephen Mansfield (Los Angeles) handled the Banco
Internacional case for the firm. Last summer, Akin Gump successfully
obtained the dismissal of the government's case against another
Mexican bank, Banorte, and obtained the return of over $3 million in
seized funds. Terence J. Lynam and Edward L. Rubinoff (Washington)
worked with Mr. Mansfield on the Banorte case for the firm.


Group Unfreezes Assets For New Client In Emergency Proceeding

Akin Gump's criminal litigation defense group was retained by an
international financial advisory firm, which handled investments for
customers from Mexico and Central and South America, to represent its
chairman of the board and its president regarding simultaneous
actions filed by the Securities Enforcement Commission (SEC) in
federal court in San Antonio and the execution of search warrants by
law enforcement agencies. A team that included Michael J. Madigan and
Jeffrey M. King (Washington) and Barry Chasnoff and Neel Lane (San
Antonio) obtained an emergency hearing before the court and
successfully secured the release of its clients' assets - which the
SEC had frozen by obtaining an ex parte order from the Court. The
Court also ordered the SEC's enforcement action stayed, pending
resolution of the ongoing grand jury investigation in which no
charges have been filed to date.

From the Akin Gump web site:

Michael J. Mueller is a partner in the litigation and technology
practice groups of Akin, Gump, Strauss, Hauer & Feld, L.L.P. in
Washington.

Mr. Mueller is experienced in all aspects of civil litigation,
including trial and appeals. He has litigated at all levels of the
federal court system and in the Florida, Connecticut, Delaware,
Maryland and District of Columbia local courts. Mr. Mueller recently
represented Food Lion in its landmark trial against ABC News. He also
litigated a bankruptcy valuation trial, a 73-day labor arbitration,
two federal securities and racketeering trials, and a contracts trial
involving three class-action groups. Mr. Mueller has litigated cases
involving antitrust, contracts, foreign military sales, Foreign
Corrupt Practices Act, labor law, racketeering, securities law and
wage-hour collective actions. He has extensive experience with
complex litigation, including class actions.

Mr. Mueller is a member of the firm's technology practice group. He
has represented technology companies since the early 1990s, including
the original transcript-reducing software vendor and the leading real-
time transcript reporting and software vendor. He has supervised
various issues facing new and young technology companies, including
incorporation, LLC agreements, partnership dissolution, marketing
agreements, high-tech employee immigration visas, trademark
registration, and employment consulting and litigation.

Mr. Mueller received his A.B. with highest distinction in 1982 from
the University of Michigan, where he was elected to Phi Beta Kappa.
He received his J.D. cum laude in 1985 from the University of
Michigan, where he was the Managing Editor of the University of
Michigan Journal of Law Reform. After graduation from law school, Mr.
Mueller was a judicial clerk to the Honorable Avern Cohn in the U.S.
District Court for the Eastern District of Michigan.

Mr. Mueller is a member of the District of Columbia and Illinois Bars
and is admitted to practice before the U.S. Courts of Appeals for the
3rd, 4th and 6th Circuits. He recently served as chair of the Bar
Association of the District of Columbia's Litigation Committee. He is
vice chair of the ABA Antitrust Section's Civil RICO Committee;
management co-chair of the ABA Labor and Employment Law Section's
Antitrust, RICO and Labor Law Committee; and serves as a member of
the editorial advisory board of the Civil RICO Report and the
advisory board of the RICO Law Reporter, for which he has written
various articles on RICO practice. He has written about pleading
practice under RICO and legal technology issues for those and other
publications.

From the Akin Gump web site:

Richard L. Wyatt Jr. is a partner in the Washington office of Akin,
Gump, Strauss, Hauer & Feld, L.L.P., chairs the firm's labor and
employment practice group, and serves on the firmwide management and
strategic planning committees.

Mr. Wyatt represents management in labor and employment issues and
has served as labor counsel for clients in the retail,
telecommunications, auto manufacturing, airline, railroad, hospital
and nursing industries. He has handled administrative and federal
court litigation, collective bargaining and union organizing
campaigns. In 1989 Mr. Wyatt was lead counsel before the U.S. Supreme
Court in a landmark Railway Labor Act case, Pittsburgh & Lake Erie
Railroad v. Railway Labor Executives Association. From 1983 to 1991
he served as outside counsel to Texas Air, Continental Airlines and
Eastern Airlines on litigation ranging from mergers to collective
bargaining disputes.

Mr. Wyatt counsels, writes and lectures on labor law matters,
including unions' increasing use of nontraditional strategies such as
coordinated or comprehensive campaigns. Most recently, he was lead
counsel for the Food Lion grocery chain in defending and prosecuting
a series of lawsuits that arose from a union's corporate campaign.
Mr. Wyatt received his B.A. from Auburn University in 1975 and his
J.D. from the Emory University School of Law in 1979. He is a member
of the Georgia and District of Columbia Bars. He was one of 26
management lawyers listed in The National Law Journal's most
recent "Who's Who of Employment/Labor Lawyers" (July 28, 1997).

From Akin Gump web site profile of
Tom McLish:

"His experience
includes a principal role at both the trial and appellate levels in
Food Lion's landmark lawsuit against ABC arising out of the network's
tortious hidden camera investigation of the company."

FOR IMMEDIATE RELEASE
March 25, 1999

Contact: Greg Denier (202)466-1591 or email press@...

SOUTH CAROLINA COURT DISMISSES FOOD LION'S SUIT AGAINST UNION UNION'S
COSTS OF DEFENDING AGAINST DISMISSED SUIT

Court Finds No Abuse of Process in UFCW Litigation on Behalf of Non-
Union WorkersGREENVILLE, S.C. — Food Lion's "abuse of process"
lawsuit against the United Food & Commercial Workers Union (UFCW) was
dismissed Tuesday by Court of Common Pleas Judge Joseph J. Watson in
what the Union described as "total and complete vindication for the
UFCW's efforts to assist non-union Food Lion workers in correcting
abuses of their rights."

UFCW officials hailed the decision as "a major victory for workers
seeking the legal and financial assistance of Unions in correcting
employer practices that cheat workers out of their wages and
benefits. The UFCW is proud of its efforts to help non-union workers
obtain what is rightfully theirs."

Food Lion sued the Union in 1993 claiming that a suit filed in 1990,
Rickey B. Bryant et. al. v. Food Lion, was an abuse of process. In
that suit, employees allege that the grocery chain unlawfully
terminated employees to keep them from vesting in the firm's profit-
sharing plan and improperly denied employees their health benefits.

The UFCW provided financial and other assistance to Bryant and other
former employees in bringing the action. Food Lion claimed the UFCW
used the suit to acquire other information from current and former
employees as part of a "corporate campaign" to generate and
successfully prosecute other civil suits and/or administrative
complaints against the Salisbury, N.C.-based grocer. This included a
U.S. Department of Labor investigation of off-the-clock work at Food
Lion, leading to $16 million in back pay and fines in 1993, along
with private suits involving more than 1,000 plaintiffs.

The company's off-the-clock violations were the centerpiece of an ABC-
TV Prime Time Live report in November 1992 that Food
Lion's "effective scheduling system" caused employees to shortcut
safe food handling practices. Food Lion's suit against ABC is
currently on appeal to the Fourth Circuit Court of Appeals.

In a carefully-reasoned 18-page decision, Judge Watson rejected each
of Food Lion's six separate actions it claimed were an abuse of
process: (1) Filing the Bryant complaint as a class action; (2)
amending the suit to add additional named plaintiffs; (3) publicity
about the suit; (4) taking "informal discovery" from other Food Lion
workers; (5) taking formal discovery in the Bryant case; and (6)
filing a motion to release certain depositions from a Confidentiality
Order issued by the federal court. "[N]ot one of those allegations
standing on its own is sufficient to make out a valid cause of action
for abuse of process under South Carolina law. Six separate
allegations none of which is sufficient to make out a valid cause of
action for abuse of process cannot be transformed into a legally-
cognizable abuse of process case by the expedient grouping of those
six separate inadequate allegations together in a single amended
complaint," Judge Watson ruled.

Further, the Court rejected Food Lion's attempt to "invent a new
cause of action" to cover such claims, finding that Food Lion's
allegations "could not be further afield from the kind of conduct"
that would violate South Carolina law. The UFCW is the nation's
largest union of retail employees, with 900,000 of its 1.4 million
members working in the retail food industry.

From the Akin Gump web site presentation
on the Food Lion v. ABC case:

ABC's PrimeTime Live show about Food Lion was the product of a
relentless campaign by the United Food and Commercial Workers
International union (UFCW) to drive the non-union Food Lion out of
business. The UFCW provided ABC with the idea for the story, crucial
assistance in the illegal scheme to gain access to Food Lion stores
with hidden cameras, and with almost all of ABC's "sources." [For
details, click here]


· During the 1980s, the UFCW made several attempts to organize
Food Lion's employees.

· Food Lion's employees resisted the UFCW's efforts to unionize.

· Desperate, the UFCW launched a corporate campaign aimed at
driving Food Lion out of business. [For details, click here]

· The UFCW was instrumental in ABC's preparation of the
PrimeTime Live segment about Food Lion, including the "undercover"
operation that a jury found to be unlawful. The UFCW not only
supplied ABC's producers with the story idea, but also provided key
logistical support in implementing the illegal scheme to use false
employment applications to gain access to Food Lion stores. [For
details, click here]

· When the PrimeTime Live show aired on November 5, 1992, the
UFCW was ready with a media blitz designed to exacerbate the damage
done by the show's allegations.

From the Akin Gump web site, about how it
got jurors to rule against ABC for Food Lion,
a decision that was entirely reversed on
appeal:

· Akin Gump's sophisticated Litigation Support department
imaged and coded over 300,000 pages that Food Lion produced to ABC
during discovery, as well as another 400,000 pages on the UFCW's
corporate campaign that were made available for ABC's inspection.
This data was loaded into a Windows-based networked litigation
support system, which provided the trial team direct desktop access
to images and documents, including depositions and trial transcripts.

· In court, Food Lion's attorneys delivered a high-tech multi-
media presentation to argue their case to the jury more vividly. They
projected documents and videotaped testimony onto computer monitors
throughout the courtroom. They enlarged and highlighted portions of
documents on the monitors as strategically appropriate. Videotaped
testimony was displayed on the same monitor screen that was used to
display crucial written documents, which allowed the trial team to
present the evidence more efficiently and effectively.

From the Akin Gump web site:

http://www.akingump.com

(Akin Gump's promotional materials boast of its
victory in the Food Lion v. ABC case, which it
won at trial. But a year after it lost the case
on appeal, Akin Gump has not corrected the
misinformation on its web site.)

This is what the Akin Gump web site claims:

What was the basis for the judgment against ABC? ABC and its
producers were held liable for fraud, trespass and breaching the duty
of loyalty they owed to Food Lion as its employees. As a result of
the fraud, Food Lion incurred costs for hiring, training and paying
wages. In short, ABC had defrauded Food Lion of money and time.

In the end, twelve average citizens sent a clear signal that fraud is
reprehensible, and awarded both compensatory and punitive damages.
The Court agreed with Food Lion that imposing liability and punitive
damages raised no First Amendment concerns -- the Constitutional
protection of the free press does not include the right to invade the
rights and liberties of others. The torts at issue apply to everyone,
including the media.

Here's where Food Lion ended up last year.

>                                4 of 18 DOCUMENTS
>
>                    Copyright 1999 The New York Times Company
>
>                                The New York Times
>
>
>
>                 October 23, 1999, Saturday, Late Edition - Final
>
> SECTION: Section A; Page 16; Column 1; Editorial Desk
>
> LENGTH: 307 words
>
> HEADLINE: First Amendment Decisions;
>  The Press Wins
>
> BODY:
>
>    The decision by the United States Court of Appeals for the Fourth
> Circuit in
>  the case of Food Lion v. ABC properly preserves the right of the
press to
> report
>  truthful information. First Amendment principles require that a
plaintiff
> like
>  Food Lion suing for libel prove that the news report was false and
was
> made with
>  actual malice. The court wisely says that the plaintiff cannot get
around
> this
>  high standard of proof in trying to recover defamation-like
damages by
> relying
>  on other charges.
>
>    The case arose after ABC's "Primetime Live" program broadcast a
report
>  showing that stores in the Food Lion supermarket chain repackaged
and
> sold
>  spoiled meat and fish. Food Lion sued ABC on grounds of fraud,
breach of
> loyalty
>  and trespass because two ABC reporters had lied to get jobs with
Food
> Lion in
>  order to videotape food-handling practices at the stores.
>
>     Instead of suing for libel, Food Lion sued ABC for the way it
had
> gathered
>  the news. The lawsuit did not challenge the truth of the report,
but
> focused on
>  the actions of reporters. A federal jury in 1997 awarded Food Lion
$5.5
> million
>  in punitive damages, and $1,402 in actual damages. That punitive
award
> was
>  slashed to $315,000 by the district court.
>
>    The appellate court has now reversed the verdict, ruling that
Food Lion
> did
>  not prove all the elements of a fraud claim. Since the punitive
damages
> were
>  awarded based on fraud, it threw out those damages as well. That
left
> only $2 in
>  damages awarded against the two undercover reporters for trespass
and
> breach of
>  loyalty to Food Lion.
>
>    Food Lion had sought to use its tort claims to recover damages
related
> to its
>  reputation, such as loss of good will and sales, from the
broadcast. But
> the
>  court ruled that such a strategy would be an impermissible end-run
around
> First
>  Amendment requirements for libel suits.
>
>    http://www.nytimes.com
>
> LANGUAGE: ENGLISH
>
> LOAD-DATE: October 23, 1999
>
>                                6 of 18 DOCUMENTS
>
>                    Copyright 1999 The New York Times Company
>
>                                The New York Times
>
>
>
>                 October 21, 1999, Thursday, Late Edition - Final
>
> SECTION: Section A; Page 1; Column 4; National Desk
>
> LENGTH: 1019 words
>
> HEADLINE: Appeals Court Rejects Damages Against ABC in Food Lion
Case
>
> BYLINE:  By FELICITY BARRINGER
>
> BODY:
>
>    A divided Federal appeals court yesterday threw out all but $2
of the
> damages
>  that a jury had ordered ABC News to pay to the Food Lion
supermarket
> chain after
>  it reported that the grocery chain sold beef and other food that
was
> unsanitary.
>
>    In the majority opinion, a panel of the United States Court of
Appeals
> for
>  the Fourth Circuit in Richmond wrote that Food Lion's attempt to
win a
>  multimillion-dollar fraud verdict because two ABC employees had
lied
> their way
>  into jobs in Food Lion stores was "an end-run" around First
Amendment
>  protections for journalists.
>
>     In the case, a Federal District Court jury in Greensboro, N.C.,
> awarded the
>  supermarket chain $5.5 million in January 1997 after finding that
ABC had
>  engaged in fraud, though that was later reduced to $315,000. The
case had
> been
>  closely followed by news organizations that feared that plaintiffs
could
> win
>  crippling damage awards without having to prove that the news
reports in
>  question were false or malicious.
>
>    Specialists in media law said the 2-to-1 court ruling yesterday
could
> blunt
>  that line of legal attack by setting high Constitutional hurdles
for
> plaintiffs
>  whose lawsuits focus on news gathering techniques.
>
>    The case was filed after the ABC program "Primetime Live" in 1992
> broadcast a
>  report that Food Lion workers mixed out-of-date beef along with
new beef,
>  bleached rank meat to remove its odor and redated products. The
report
> also
>  included videotapes of the chain's workers secretly made by ABC
employees
> who
>  had obtained jobs with the chain.
>
>    The impact of the television report, which won a journalism
award, was
>  devastating on the company: the value of its stock dropped roughly
$1.3
> billion
>  in the week after the broadcast.
>
>    In its lawsuit, which had sought $2.47 billion in damages, Food
Lion
> accused
>  ABC of conspiring with a hostile labor union to get jobs for the
> network's
>  employees.
>
>    When a Federal District Court struck down most of the $5.5
million in
> damages
>  awarded by the jury in the fraud suit, it did so on narrow grounds
that
> avoided
>  First Amendment issues. The $315,000 damage award the district
court had
> left
>  standing was struck down by the appeals court yesterday.
>
>    Only $2 of the original damage award remained untouched by the
later
> rulings,
>  including the jury's award of $1 to Food Lion because the
journalists
> trespassed
>  on the supermarket chain's property and $1 because they breached
their
> legal
>  duty of loyalty to their employer.
>
>    David Westin, the president of ABC News who was the network's
general
> counsel
>  when the lawsuit was filed -- applauded the ruling, which, he said,
> "should help
>  blunt" an "important and dangerous shift." Instead of plaintiffs
> "challenging
>  what we said, through libel and defamation, they are trying to get
around
>  through the back door, attacking the process we used to get" the
> information
>  used in news reports.
>
>    Mr. Westin and several specialists in media law said that the
high
> hurdles
>  faced by libel plaintiffs have led plaintiffs to attack not the
substance
> of
>  news reports, but the sometimes questionable way journalists
gathered
> their
>  information.
>
>    But in addressing such issues, Judge M. Blane Michael, author of
the
> majority
>  opinion, wrote, "We are convinced that the media can do its
important job
>  effectively without resort to the commission of run-of-the-mill"
breaches
> of the
>  law. Judge Michael was joined by Judge Diana Gribbon Motz.
>
>    Floyd Abrams, a partner at the law firm of Cahill Gordon &
Reindel who
> is a
>  well-known First Amendment specialist, said of the case
yesterday: "What
> people
>  have tried to do is an end run around the First Amendment
protections
> that exist
>  in libel law. This case is a quintessential example. Food Lion
didn't
> care at
>  all that two employees had false information on their applications
for
>  employment. What they cared about was what ABC said about them."
>
>    Food Lion is based in Salisbury, N.C., that is a subsidiary of
the
> Belgian
>  company Etablissements Delhaize Freres et Cie "Le Lion." The
American
> unit has
>  more than 1,100 stores in 14 states and has annual revenue of
about $10.2
>  billion. The company's stock fell 56.25 cents to $18.5625
yesterday.
>
>    Food Lion issued a statement through its lawyer, Richard L.
Wyatt Jr.,
>  saying: "We are disappointed that the Fourth Circuit did not
affirm the
> decision
>  in Food Lion's favor in its entirety. However, the court did
recognize
> that
>  ABC's manipulative illegal tactics caused unwarranted damage to our
> company and
>  our employees."
>
>    The statement continued, "This is a complex legal area, and our
lawyers
> will
>  review the court's decision and advise us of our options."
>
>    ABC, which was acquired by The Walt Disney Company after the
lawsuit
> was
>  filed, has 22,000 employees. Disney, with 117,000 employees
including
> those at
>  ABC, has annual revenue of $22.9 billion.
>
>    The district court had also held that under the applicable state
laws
> in the
>  case, ABC's reporters had defrauded Food Lion by their actions.
This
> fraud
>  finding, however, was overturned by yesterday's appellate ruling.
>
>    In a dissent, Judge Paul V. Niemeyer argued that the two ABC
> journalists,
>  Lynne Dale and Susan Barnett, "applied to Food Lion with the secret
> intent to
>  obtain sensational and damaging evidence to publish against Food
Lion."
>
>    In addition, Judge Niemeyer wrote, "in seeking to 'uncover'
practices,
> the
>  ABC employees baited fellow employees to say and do things that
they knew
> would
>  undermine Food Lion's standing food-handling practices." He parted
with
> his two
>  colleagues by saying that such actions gave the jury "ample
evidence" to
>  conclude that ABC had committed common-law fraud.
>
>    One lawyer who filed briefs on Food Lion's behalf said yesterday
that
> the
>  court's ruling erred in not relying on a different set of legal
> precedents.
>
>    "Food Lion's claim was that we get damages for the illegally
obtained,
> even
>  staged videotape, which is a very live issue," he said.
>
>    But, as Food Lion's formal statement indicated, the lawyer said
the
> company
>  needed time to decide if it would pursue this logic in an appeal,
either
> to the
>  full circuit court or to the Supreme Court.
>
>
>    http://www.nytimes.com
>
> LANGUAGE: ENGLISH
>
> LOAD-DATE: October 21, 1999

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FOOD LION, INCORPORATED,

Plaintiff-Appellee,

v.

CAPITAL CITIES/ABC, INC.; LYNNE

LITT, a/k/a Lynne Neufes; ABC

HOLDING COMPANY; AMERICAN

BROADCASTING COMPANIES,

INCORPORATED; RICHARD N. KAPLAN;

IRA ROSEN; SUSAN BARNETT,

Defendants-Appellants,

ADVANCE PUBLICATIONS,

INCORPORATED; ASSOCIATED PRESS;

THE ASSOCIATION OF AMERICAN

PUBLISHERS; CBS BROADCASTING,

INCORPORATED; CABLE NEWS

No. 97-2492

NETWORK, INCORPORATED; GANNETT

COMPANY, INCORPORATED; THE

HEARST CORPORATION; KING WORLD

PRODUCTIONS, INCORPORATED;

MCCLATCHY NEWSPAPERS,

INCORPORATED; THE NATIONAL

ASSOCIATION OF BROADCASTERS;

NATIONAL BROADCASTING COMPANY,

INCORPORATED; THE NEWSPAPER

ASSOCIATION OF AMERICA; NATIONAL

PUBLIC RADIO, INCORPORATED; THE

NEW YORK TIMES COMPANY; THE

RADIO-TELEVISION NEWS DIRECTORS

ASSOCIATION; THE REPORTERS

COMMITTEE FOR FREEDOM OF THE

PRESS; INVESTIGATIVE REPORTERS;

EDITORS, INCORPORATED; NATIONAL

GROCERS ASSOCIATION;

INTERNATIONAL MASS RETAIL

ASSOCIATION; WILLIAM E. LEE; JOHN

DEMOTT; ROBERT ELLIS SMITH; MIKE


ROSEN; ACCURACY IN MEDIA; MEDIA

RESEARCH CENTER; ATLANTIC LEGAL

FOUNDATION; SOUTHEASTERN LEGAL

FOUNDATION,

Amici Curiae.

FOOD LION, INCORPORATED,

Plaintiff-Appellant,

v.

CAPITAL CITIES/ABC, INC.; LYNNE

LITT, a/k/a Lynne Neufes; ABC

HOLDING COMPANY; AMERICAN

BROADCASTING COMPANIES,

INCORPORATED; RICHARD N. KAPLAN;

IRA ROSEN; SUSAN BARNETT,

No. 97-2564

Defendants-Appellees,

ADVANCE PUBLICATIONS,

INCORPORATED; ASSOCIATED PRESS;

THE ASSOCIATION OF AMERICAN

PUBLISHERS; CBS BROADCASTING,

INCORPORATED; CABLE NEWS

NETWORK, INCORPORATED; GANNETT

COMPANY, INCORPORATED; THE

HEARST CORPORATION; KING WORLD

PRODUCTIONS, INCORPORATED;

2

MCCLATCHY NEWSPAPERS,

INCORPORATED; THE NATIONAL

ASSOCIATION OF BROADCASTERS;

NATIONAL BROADCASTING COMPANY,

INCORPORATED; THE NEWSPAPER

ASSOCIATION OF AMERICA; NATIONAL

PUBLIC RADIO, INCORPORATED; THE

NEW YORK TIMES COMPANY; THE

RADIO-TELEVISION NEWS DIRECTORS

ASSOCIATION; THE REPORTERS


COMMITTEE FOR FREEDOM OF THE

PRESS; NATIONAL GROCERS

ASSOCIATION; INTERNATIONAL MASS

RETAIL ASSOCIATION; WILLIAM E.

LEE; JOHN DEMOTT; ROBERT ELLIS

SMITH; MIKE ROSEN; ACCURACY IN

MEDIA; MEDIA RESEARCH CENTER;

ATLANTIC LEGAL FOUNDATION;

SOUTHEASTERN LEGAL FOUNDATION,

Amici Curiae.

Appeals from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

N. Carlton Tilley, Jr., Chief District Judge.

(CA-92-592-6)

Argued: June 4, 1998

Decided: October 20, 1999

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Judge

Michael wrote the opinion, in which Judge Motz joined. Judge Nie-

3

meyer wrote a separate opinion, concurring in part and dissenting in

part.

_________________________________________________________________

COUNSEL

ARGUED: Bruce J. Ennis, Jr., JENNER & BLOCK, Washington,

D.C., for Appellants. Richard L. Wyatt, Jr., AKIN, GUMP,

STRAUSS, HAUER & FELD, L.L.P., Washington, D.C., for Appel-

lee. ON BRIEF: Paul M. Smith, Mark D. Schneider, Deanne E. May-

nard, Michelle B. Goodman, Christopher A. Bracey, JENNER &

BLOCK, Washington, D.C.; William H. Jeffress, Jr., Randall J. Turk,

MILLER, CASSIDY, LARROCA & LEWIN, Washington, D.C.;

Alan N. Braverman, Nathan Siegel, ABC, INCORPORATED, New

York, New York; Kathleen M. Sullivan, STANFORD LAW

SCHOOL, Stanford, California; Hugh Stevens, EVERETT, GAS-

KINS, HANCOCK & STEVENS, Raleigh, North Carolina, for

Appellants. Michael J. Mueller, Thomas P. McLish, AKIN, GUMP,

STRAUSS, HAUER & FELD, L.L.P., Washington, D.C.; W. Andrew

Copenhaver, Timothy G. Barber, WOMBLE, CARLYLE, SAN-

DRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for

Appellee. Floyd Abrams, Gail Johnston, CAHILL, GORDON &

REINDEL, P.C., New York, New York, for Amici Curiae Advance

Publications, et al. David B. Smallman, SIMPSON, THACHER &

BARTLETT, New York, New York, for Amicus Curiae Investigative

Reporters. Thomas F. Wenning, Ronald A. Bloch, NATIONAL

GROCERS ASSOCIATION, Reston, Virginia; Christopher A. Weals,

Donald L. Rosenthal, SEYFARTH, SHAW, FAIRWEATHER &

GERALDSON, Washington, D.C., for Amicus Curiae Grocers. Neal

Goldfarb, TIGHE, PATTON, TABACKMAN & BABBIN, L.L.C.,

Washington, D.C., for Amici Curiae Lee, et al. Martin S. Kaufman,

Edwin L. Lewis, Douglas Foster, ATLANTIC LEGAL FOUNDA-

TION, INC., New York, New York, for Amicus Curiae Foundation.

Valle Simms Dutcher, SOUTHEASTERN LEGAL FOUNDATION,

Atlanta, Georgia; Charles J. Cooper, Michael W. Kirk, COOPER,

CARVIN & ROSENTHAL, P.L.L.C., Washington, D.C., for Amicus

Curiae Southeastern Legal.

_________________________________________________________________

4

OPINION

MICHAEL, Circuit Judge:

Two ABC television reporters, after using false resumes to get jobs

at Food Lion, Inc. supermarkets, secretly videotaped what appeared

to be unwholesome food handling practices. Some of the video foot-

age was used by ABC in a PrimeTime Live broadcast that was sharply

critical of Food Lion. The grocery chain sued Capital Cities/ABC,

Inc., American Broadcasting Companies, Inc., Richard Kaplan and Ira

Rosen, producers of PrimeTime Live, and Lynne Dale and Susan Bar-

nett, two reporters for the program (collectively,"ABC" or the "ABC

defendants"). Food Lion did not sue for defamation, but focused on

how ABC gathered its information through claims for fraud, breach

of duty of loyalty, trespass, and unfair trade practices. Food Lion
won

at trial, and judgment for compensatory damages of $1,402 was

entered on the various claims. Following a substantial (over $5 mil-

lion) remittitur, the judgment provided for $315,000 in punitive dam-

ages. The ABC defendants appeal the district court's denial of their

motion for judgment as a matter of law, and Food Lion appeals the

court's ruling that prevented it from proving publication damages.

Having considered the case, we (1) reverse the judgment that the

ABC defendants committed fraud and unfair trade practices, (2)

affirm the judgment that Dale and Barnett breached their duty of loy-

alty and committed a trespass, and (3) affirm, on First Amendment

grounds, the district court's refusal to allow Food Lion to prove
publi-

cation damages.

I.

In early 1992 producers of ABC's PrimeTime Live program

received a report alleging that Food Lion stores were engaging in

unsanitary meat-handling practices. The allegations were that Food

Lion employees ground out-of-date beef together with new beef,

bleached rank meat to remove its odor, and re-dated (and offered for

sale) products not sold before their printed expiration date. The pro-

ducers recognized that these allegations presented the potential for a

powerful news story, and they decided to conduct an undercover

investigation of Food Lion. ABC reporters Lynne Dale (Lynne Litt at

the time) and Susan Barnett concluded that they would have a better

5

chance of investigating the allegations if they could become Food

Lion employees. With the approval of their superiors, they proceeded

to apply for jobs with the grocery chain, submitting applications with

false identities and references and fictitious local addresses.
Notably,

the applications failed to mention the reporters' concurrent employ-

ment with ABC and otherwise misrepresented their educational and

employment experiences. Based on these applications, a South Caro-

lina Food Lion store hired Barnett as a deli clerk in April 1992, and

a North Carolina Food Lion store hired Dale as a meat wrapper

trainee in May 1992.

Barnett worked for Food Lion for two weeks, and Dale for only

one week. As they went about their assigned tasks for Food Lion,

Dale and Barnett used tiny cameras ("lipstick" cameras, for example)

and microphones concealed on their bodies to secretly record Food

Lion employees treating, wrapping and labeling meat, cleaning

machinery, and discussing the practices of the meat department. They

gathered footage from the meat cutting room, the deli counter, the

employee break room, and a manager's office. All told, in their three

collective weeks as Food Lion employees, Dale and Barnett recorded

approximately 45 hours of concealed camera footage.

Some of the videotape was eventually used in a November 5, 1992,

broadcast of PrimeTime Live. ABC contends the footage confirmed

many of the allegations initially leveled against Food Lion. The

broadcast included, for example, videotape that appeared to show

Food Lion employees repackaging and redating fish that had passed

the expiration date, grinding expired beef with fresh beef, and apply-

ing barbeque sauce to chicken past its expiration date in order to
mask

the smell and sell it as fresh in the gourmet food section. The
program

included statements by former Food Lion employees alleging even

more serious mishandling of meat at Food Lion stores across several

states. The truth of the PrimeTime Live broadcast was not an issue in

the litigation we now describe.

Food Lion sued ABC and the PrimeTime Live producers and

reporters. Food Lion's suit focused not on the broadcast, as a defama-

tion suit would, but on the methods ABC used to obtain the video

footage. The grocery chain asserted claims of fraud, breach of the

duty of loyalty, trespass, and unfair trade practices, seeking
millions

6

in compensatory damages. Specifically, Food Lion sought to recover

(1) administrative costs and wages paid in connection with the

employment of Dale and Barnett and (2) broadcast (publication) dam-

ages for matters such as loss of good will, lost sales and profits,
and

diminished stock value. Punitive damages were also requested by

Food Lion.

The district court, in a remarkably efficient effort, tried the case

with a jury in three phases. At the liability phase, the jury found
all

of the ABC defendants liable to Food Lion for fraud and two of them,

Dale and Barnett, additionally liable for breach of the duty of
loyalty

and trespass. Based on the jury's fraud verdict and its special
interrog-

atory findings that the ABC defendants had engaged in deceptive acts,

the district court determined that the ABC defendants had violated the

North Carolina Unfair and Deceptive Trade Practices Act (UTPA).

Prior to the compensatory damages phase, the district court ruled that

damages allegedly incurred by Food Lion as a result of ABC's broad-

cast of PrimeTime Live -- "lost profits, lost sales, diminished stock

value or anything of that nature" -- could not be recovered because

these damages were not proximately caused by the acts (fraud, tres-

pass, etc.) attributed to the ABC defendants in this case. See Food

Lion, Inc. v. Capital Cities/ABC, Inc., 964 F. Supp. 956, 958

(M.D.N.C. 1997) (setting forth rationale for ruling at trial).
Operating

within this constraint, the jury in the second phase awarded Food Lion

$1,400 in compensatory damages on its fraud claim, $1.00 each on its

duty of loyalty and trespass claims, and $1,500 on its UTPA claim.

(The court required Food Lion to make an election between the fraud

and UTPA damages, and the grocery chain elected to take the $1,400

in fraud damages.) At the final stage the jury lowered the boom and

awarded $5,545,750 in punitive damages on the fraud claim against

ABC and its two producers, Kaplan and Rosen. The jury refused to

award punitive damages against the reporters, Dale and Barnett. In

post-trial proceedings the district court ruled that the punitive dam-

ages award was excessive, and Food Lion accepted a remittitur to a

total of $315,000.

After trial the ABC defendants moved for judgment as a matter of

law on all claims, the motion was denied, and the defendants now

appeal. Food Lion cross-appeals, contesting the district court's
ruling

that the damages the grocery chain sought as a result of the

7

PrimeTime Live broadcast were not recoverable in this action. We

now turn to the legal issues.

II.

A.

We must first consider whether the ABC defendants can be held

liable for fraud, breach of the duty of loyalty, and trespass as a
matter

of North Carolina and South Carolina law and whether the North Car-

olina UTPA applies. As a federal court sitting in diversity, we are

obliged to interpret and apply the substantive law of each state. See

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). This process is more

complicated here because neither state's highest court has applied its

law to circumstances exactly like those presented in this case. Thus,

we must offer our best judgment about what we believe those courts

would do if faced with Food Lion's claims today. See Hatfield v.

Palles, 537 F.2d 1245, 1248 (4th Cir. 1976) (noting that when "[t]here

have been no decisions by the South Carolina Supreme Court . . . [a]

federal court must . . . endeavor to decide the issue in the way it

believes the South Carolina Supreme Court would decide it."). In con-

ducting our analysis, we may of course consider all of the authority

that the state high courts would, and we should give appropriate

weight to the opinions of their intermediate appellate courts.

Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967) (noting

that when there is no decision by a state's highest court, federal
court

must apply what it "find[s] to be the state law after giving `proper

regard' to relevant rulings of other courts of the State."); Sanderson

v. Rice, 777 F.2d 902, 905 (4th Cir. 1985) (noting that "[a]n opinion

of an intermediate appellate court is persuasive in situations where
the

highest state court has not spoken"). Finally, we review de novo the

district court's determinations on these questions of state law. Salve

Regina College v. Russell, 499 U.S. 225, 231 (1991).

1.

Food Lion, proceeding under the proof limitations on damages,

sought $2,432.35 in compensatory damages on its fraud claim and the

jury awarded $1,400. According to ABC, the district court erred in

upholding the verdict on this claim because Food Lion did not prove

8

injury caused by reasonable reliance on the misrepresentations made

by Dale and Barnett on their job applications. We agree.

To prove fraud under North Carolina law, the plaintiff must estab-

lish that the defendant (1) made a false representation of material
fact,

(2) knew it was false (or made it with reckless disregard of its truth

or falsity), and (3) intended that the plaintiff rely upon it. In
addition,

(4) the plaintiff must be injured by reasonably relying on the false

representation. See Ragsdale v. Kennedy, 209 S.E.2d 494, 500 (N.C.

1974); Britt v. Britt, 359 S.E.2d 467, 471 (N.C. 1987), criticized on

other grounds, Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 374

S.E.2d 385, 391-92 (N.C. 1988). The elements of fraud in South Car-

olina are essentially the same. See Florentine Corp., Inc. v. PEDA I,

Inc., 339 S.E.2d 112, 113-114 (S.C. 1985). It is undisputed that Dale

and Barnett knowingly made misrepresentations with the aim that

Food Lion rely on them. Thus, only the fourth element of fraud, inju-

rious reliance, is at issue. Food Lion claimed two categories of
injury

resulting from the lies on the job applications: the costs associated

with hiring and training new employees (administrative costs) and the

wages it paid to Dale and Barnett.

The main component of Food Lion's claim for fraud damages

relates to administrative costs resulting from its employment of Dale

and Barnett. These are routine costs associated with any new

employee, including the costs of screening applications, interviewing,

completing forms, and entering data into the payroll system. Also

included are estimated costs attributable to trainees for lower
produc-

tivity and customer dissatisfaction. Food Lion offered testimony that

these costs totaled $1,944.62. It is undisputed that the jobs held by

Dale and Barnett, meat wrapper trainee and deli clerk, were ones with

high turnover. Still, Food Lion claims that because of the reporters'

misrepresentations on their employment applications, it was forced to

"incur these [administrative] costs for two more employees," Appel-

lee's Opening Br. at 15, because the reporters quit their jobs after
one

or two weeks.

As indicated, under North and South Carolina law a plaintiff claim-

ing fraud must show injury proximately caused by its reasonable reli-

ance on a misrepresentation. See Britt, 359 S.E.2d at 471 (requiring

that plaintiff be "injured by reasonably relying on the false
representa-

9

tion."); Florentine Corp., 339 S.E.2d at 114 (same). In this case,

therefore, Food Lion had to show (1) that it hired Dale and Barnett

(and incurred the administrative costs incident to their employment)

because it believed they would work longer than a week or two and

(2) that in forming this belief it reasonably relied on misrepresenta-

tions made by Dale and Barnett.

On their job applications Dale and Barnett did misrepresent matters

such as their backgrounds, experience, and other employment. They

did not, however, make any representations about how long they

would work, and Food Lion did not ask for any. To the contrary, the

applications signed by Dale and Barnett expressly provided that either

side -- company or employee -- could terminate the employment at

any time. Each application contained the same provision, written in

no uncertain terms: "I also understand and agree that if employed,

employment is for an indefinite period of time, and that I have the

right to terminate my employment at any time for any reason, as does

the Company." Food Lion also understood what this meant. As one

of its payroll managers acknowledged on cross-examination, "when

Food Lion hires a new deli clerk or a new meat clerk. . . it assume[s]

the risk that that person might stay only a few days." Dale and
Barnett

were, in short, at-will employees.

Because Dale and Barnett did not make any express representations

about how long they would work, Food Lion is left to contend that

misrepresentations in the employment applications led it to believe

the two would work for some extended period. There is a fundamental

problem with that contention, however. North and South Carolina are

at-will employment states, and under the at-will doctrine it is unrea-

sonable for either the employer or the employee to rely on any

assumptions about the duration of employment. At-will employment

means that (absent an express agreement) employers are free to dis-

charge employees at any time for any reason, and employees are free

to quit. See Kurtzman v. Applied Analytical Indus., Inc., 493 S.E.2d

420, 422 (N.C. 1997) ("in the absence of a contractual agreement

between an employer and an employee establishing a definite term of

employment, the relationship is presumed to be terminable at the will

of either party without regard to the quality of performance of either

party"); Small v. Springs Indus., Inc., 388 S.E.2d 808, 810 (S.C.
1990)

("An individual working for an employer under a contract of employ-

10

ment for an indefinite period can be terminated at will. At-will

employment is generally terminable by either party at any time, for

any reason or for no reason at all.") (citations omitted).

Food Lion's claim for administrative costs attributable to Dale and

Barnett is simply inconsistent with the at-will employment doctrine.

Under that doctrine Food Lion could not reasonably rely on the sort

of misrepresentations (about background, experience, etc.) made by

the reporters to conclude that they would work for any extended

period. As a result, Food Lion did not show that the administrative

costs were an injury caused by reasonable reliance on the misrepre-

sentations.

Food Lion also sought to recover the full amount ($487.73) of the

wages it paid to Dale and Barnett, arguing that it was fraudulently

induced to pay the wages because of the misrepresentations on the

reporters' employment applications. The last (proximate cause) ele-

ment of fraud is again the only one at issue: Food Lion had to show

that it paid the wages in reasonable reliance on the misrepresenta-

tions.

Food Lion relies on the jury's findings on a separate claim, the

finding that Dale and Barnett breached their duty of loyalty to Food

Lion, to argue that it proved fraud damages for the wages it paid.
Spe-

cifically, Food Lion says that "it is apparent[from the disloyalty
ver-

dict] that the jury found Food Lion did not receive adequate services

for the wages it paid Dale and Barnett." Appellee's Opening Br. at 14.

However, proof of the breach of duty of loyalty, for which the jury

awarded nominal damages of $1.00, does not equal proof of fraud

damages for inadequate services. That is because it is possible to
per-

form the assigned tasks of a job adequately and still breach the duty

of loyalty. For fraud damages Food Lion still had to prove reliance

on the misrepresentations.

The question is what was the proximate cause of the issuance of

paychecks to Dale and Barnett. Was it the resume misrepresentations

or was it something else? It was something else. Dale and Barnett

were paid because they showed up for work and performed their

assigned tasks as Food Lion employees. Their performance was at a

level suitable to their status as new, entry-level employees. Indeed,

11

shortly before Dale quit, her supervisor said she would "make a good

meat wrapper." And, when Barnett quit, her supervisor recommended

that she be rehired if she sought reemployment with Food Lion in the

future. In sum, Dale and Barnett were not paid their wages because

of misrepresentations on their job applications. Food Lion therefore

cannot assert wage payment to satisfy the injurious reliance element

of fraud.1 The fraud verdict must be reversed.2

_________________________________________________________________

1 Food Lion cannot rely on Daniel Boone Complex, Inc. v. Furst, 258

S.E.2d 379 (N.C. Ct. App. 1979), to recover administrative costs and

wages as fraud damages in this case. Food Lion argues that under
Daniel

Boone it can recover damages if it simply proves that it was
fraudulently

induced to hire Dale and Barnett. That is an oversimplification. In
Daniel

Boone the plaintiff-borrower was induced to enter into a loan
agreement

based on misrepresentations about the identity of the lenders. The
Court

of Appeals of North Carolina said the borrower had a choice of
remedies:

Ordinarily, a party who has been fraudulently induced to enter

into a contract or sale has a choice of remedies. He may repudi-

ate the contract, and tendering back what he has received under

it, may recover what he had parted with or its value; or he may

affirm the contract, keeping whatever property or advantage he

has derived under it, and may recover in an action for deceit the

damages caused by the fraud.

Id. at 387 (citation omitted). Thus, Daniel Boone says that a party
fraud-

ulently induced to enter a contract in North Carolina has two
options. He

may sue for money damages, keeping whatever benefits he received

under the fraudulent contract. Or, he may repudiate the contract,
tender

back what he received under it, and seek the value of what he parted

with. The latter Daniel Boone remedy cannot apply in this case. We are

dealing with employment contracts, and it is impossible for Food Lion

to tender back what it received under those contracts. In other words,

Dale wrapped meat and Barnett worked at the deli counter. Food Lion

kept those services, and there is no way to tender them back. Because

Food Lion cannot satisfy the "tender back" element of Daniel Boone's

repudiation remedy, it is left with a basic fraud claim for money dam-

ages, which, as we have said, fails for lack of proof of injurious
reliance.

2 Our colleague, in partial dissent, argues that the administrative
costs

attributable to Dale and Barnett should be recoverable as fraud
damages.

To reach that result, the dissent would fundamentally alter the at-
will

employment doctrine by qualifying an employee's right to quit at any

time. According to the dissent, Dale and Barnett induced Food Lion to

12

2.

ABC argues that Dale and Barnett cannot be held liable for a

breach of duty of loyalty to Food Lion under existing tort law in

North and South Carolina. It is undisputed that both reporters, on

behalf of ABC, wore hidden cameras to make a video and audio

record of what they saw and heard while they were employed by Food

Lion. Specifically, they sought to document, for ABC's PrimeTime

Live program, Food Lion employees engaging in unsanitary practices,

treating products to hide spoilage, and repackaging and redating out-

of-date products. The jury found that Dale and Barnett breached their

duty of loyalty to Food Lion, and nominal damages of $1.00 were

awarded.3

_________________________________________________________________

hire them and spend money to train them by impliedly representing (as

at-will job applicants) that (1) they "intend[ed] to work
indefinitely, until

[there was] a change in circumstances" and that (2) there was "a
possibil-

ity that they would become long-term employees." Post at 30. But these

implied representations that the dissent would impute are in essence
rep-

resentations about the potential duration of employment, and here they

would translate into an obligation to work longer than a week or two.

Such an obligation is inconsistent with, and cannot be enforced under,

the at-will employment doctrine. Thus, when Food Lion, as an at-will

employer, incurred the administrative expenses, it took the full risk
that

Dale and Barnett might do what any at-will employee was free to do
(and

what many at Food Lion did) -- quit within a very short time.

Nor can fraud damages be supported by the breach of duty of loyalty

we confirm in the next subpart. The dissent argues that because Dale
and

Barnett (by silence) misrepresented their loyalty, Food Lion was
willing

to spend the money to train them on the chance they might become long-

term employees. See post at 32. Missing out on that "chance" is too
spec-

ulative to form a basis for damages. Even if Food Lion had spent the

money on new hires who were loyal, there is no evidence that the hypo-

thetical new hires would have stayed any longer than Dale and Barnett

in these high turnover jobs. Indeed, Food Lion conceded at trial that
it

could not prove actual damages resulting from the breach of duty of
loy-

alty.

3 As we have already mentioned, Food Lion acknowledged at trial that

it could not quantify actual damages on this claim. The jury was
there-

fore instructed that it could award only nominal damages.

13

As a matter of agency law, an employee owes a duty of loyalty to

her employer. In South Carolina it is "implicit in any contract for

employment that the employee shall remain faithful to the employer's

interest throughout the term of employment." Berry v. Goodyear Tire

and Rubber Co., 242 S.E.2d 551, 552 (S.C. 1978). In North Carolina

"the law implies a promise on the part of every employee to serve

[her] employer faithfully." McKnight v. Simpson's Beauty Supply,

Inc., 358 S.E.2d 107, 109 (N.C. Ct. App. 1987). The courts of North

and South Carolina have not set out a specific test for determining

when the duty of loyalty is breached. Disloyalty has been described

in fairly broad terms, however. Employees are disloyal when their

acts are "inconsistent with promoting the best interest of their

employer at a time when they were on its payroll," Lowndes Prods.,

Inc. v. Brower, 191 S.E.2d 761, 767 (S.C. 1972), and an employee

who "deliberately acquires an interest adverse to his employer . . .
is

disloyal," Long v. Vertical Techs., Inc., 439 S.E.2d 797, 802 (N.C.
Ct.

App. 1994).

ABC is correct to remind us that employee disloyalty issues are

usually dealt with in the context of the employment contract: unfaith-

ful employees are simply discharged, disciplined, or reprimanded. Up

to now, disloyal conduct by an employee has been considered tortious

in North and South Carolina in three circumstances. First, the tort of

breach of duty of loyalty applies when an employee competes directly

with her employer, either on her own or as an agent of a rival com-

pany. See id. at 801-02 (duty breached when employee used current

employer's resources during business hours to develop rival com-

pany); Lowndes Prods., 191 S.E.2d at 767 (duty breached when

employees conspired to take trade secrets and hire away other work-

ers for the benefit of rival company they were forming). Second, the

tort applies when the employee misappropriates her employer's prof-

its, property, or business opportunities. See Sara Lee Corp. v.
Carter,

500 S.E.2d 732, 736-37 (N.C. Ct. App. 1998) (duty breached when

employee bought parts for employer at above market prices from

company partly owned by employee); Construction Techniques, Inc.

v. Dominske, 928 F.2d 632, 636-39 (4th Cir. 1991) (applying South

Carolina law) (employee's ownership interest in one of his employ-

er's suppliers was inherently adverse to interests of employer; duty
of

loyalty was not breached only because employee disclosed this inter-

est to employer). Third, the tort applies when the employee breaches

14

her employer's confidences. See Lowndes Prods. , 191 S.E.2d at 767

(duty breached when employees used employer's trade secrets after

forming competing business).

Because Dale and Barnett did not compete with Food Lion, misap-

propriate any of its profits or opportunities, or breach its
confidences,

ABC argues that the reporters did not engage in any disloyal conduct

that is tortious under existing law. Indeed, the district court
acknowl-

edged that it was the first court to hold that the conduct in question

"would be recognized by the Supreme Courts of North Carolina and

South Carolina" as tortiously violating the duty of loyalty. Food
Lion,

Inc. v. Capital Cities/ABC, Inc., 964 F. Supp. 956, 959 n.2 (M.D.N.C.

1997). We believe the district court was correct to conclude that
those

courts would decide today that the reporters' conduct was sufficient

to breach the duty of loyalty and trigger tort liability.

What Dale and Barnett did verges on the kind of employee activity

that has already been determined to be tortious. The interests of the

employer (ABC) to whom Dale and Barnett gave complete loyalty

were adverse to the interests of Food Lion, the employer to whom

they were unfaithful. ABC and Food Lion were not business competi-

tors but they were adverse in a fundamental way. ABC's interest was

to expose Food Lion to the public as a food chain that engaged in

unsanitary and deceptive practices. Dale and Barnett served ABC's

interest, at the expense of Food Lion, by engaging in the taping for

ABC while they were on Food Lion's payroll. In doing this, Dale and

Barnett did not serve Food Lion faithfully, and their interest (which

was the same as ABC's) was diametrically opposed to Food Lion's.

In these circumstances, we believe that the highest courts of North

and South Carolina would hold that the reporters-- in promoting the

interests of one master, ABC, to the detriment of a second, Food Lion

-- committed the tort of disloyalty against Food Lion.

Our holding on this point is not a sweeping one. An employee does

not commit a tort simply by holding two jobs or by performing a sec-

ond job inadequately. For example, a second employer has no tort

action for breach of the duty of loyalty when its employee fails to

devote adequate attention or effort to her second (night shift) job

because she is tired. That is because the inadequate performance is

simply an incident of trying to work two jobs. There is no intent to

15

act adversely to the second employer for the benefit of the first. Cf.

Long, 439 S.E.2d at 802 (finding disloyalty when employee "deliber-

ately" acquired an interest adverse to his employer). Because Dale

and Barnett had the requisite intent to act against the interests of
their

second employer, Food Lion, for the benefit of their main employer,

ABC, they were liable in tort for their disloyalty.

We hold that, insofar as North and South Carolina law is con-

cerned, the district court did not err in refusing to set aside the
jury's

verdict that Dale and Barnett breached their duty of loyalty to Food

Lion.

3.

ABC argues that it was error to allow the jury to hold Dale and

Barnett liable for trespass on either of the independent grounds (1)

that Food Lion's consent to their presence as employees was void

because it was based on misrepresentations or (2) that Food Lion's

consent was vitiated when Dale and Barnett breached the duty of loy-

alty. The jury found Dale and Barnett liable on both of these grounds

and awarded Food Lion $1.00 in nominal damages, which is all that

was sought in the circumstances.

In North and South Carolina, as elsewhere, it is a trespass to enter

upon another's land without consent. See, e.g. , Smith v. VonCannon,

197 S.E.2d 524, 528 (N.C. 1973); Snow v. City of Columbia, 409

S.E.2d 797, 802 (S.C. Ct. App. 1991). Accordingly, consent is a

defense to a claim of trespass. See, e.g., Miller v. Brooks, 472
S.E.2d

350, 355 (N.C. Ct. App. 1996), review denied, 483 S.E.2d 172 (N.C.

1997). Even consent gained by misrepresentation is sometimes suffi-

cient. See Desnick v. American Broad. Cos., 44 F.3d 1345, 1351-52

(7th Cir. 1995) (Posner, C.J.). The consent to enter is canceled out,

however, "if a wrongful act is done in excess of and in abuse of

authorized entry." Miller, 472 S.E.2d at 355 (citing Blackwood v.

Cates, 254 S.E.2d 7, 9 (N.C. 1979)). Cf. Ravan v. Greenville County,

434 S.E.2d 296, 306 (S.C. Ct. App. 1993) (noting that the law of tres-

pass protects the "peaceable possession" of property).

We turn first to whether Dale and Barnett's consent to be in non-

public areas of Food Lion property was void from the outset because

16

of the resume misrepresentations. "[C]onsent to an entry is often

given legal effect" even though it was obtained by misrepresentation

or concealed intentions. Desnick, 44 F.3d at 1351. Without this
result,

a restaurant critic could not conceal his identity when he

ordered a meal, or a browser pretend to be interested in mer-

chandise that he could not afford to buy. Dinner guests

would be trespassers if they were false friends who never

would have been invited had the host known their true char-

acter, and a consumer who in an effort to bargain down an

automobile dealer falsely claimed to be able to buy the same

car elsewhere at a lower price would be a trespasser in a

dealer's showroom.

Id.

Of course, many cases on the spectrum become much harder than

these examples, and the courts of North and South Carolina have not

considered the validity of a consent to enter land obtained by misrep-

resentation. Further, the various jurisdictions and authorities in
this

country are not of one mind in dealing with the issue. Compare

Restatement (Second) of Torts, § 892B(2) (1965) ("[i]f the person

consenting to the conduct of another . . . is induced [to consent] by

the other's misrepresentation, the consent is not effective for the

unexpected invasion or harm") and Shiffman v. Empire Blue Cross

and Blue Shield, 681 N.Y.S.2d 511, 512 (App. Div. 1998) (reporter

who gained entry to medical office by posing as potential patient

using false identification and insurance cards could not assert
consent

as defense to trespass claim "since consent obtained by misrepresenta-

tion or fraud is invalid"), with Desnick, 44 F.3d at 1351-53 (ABC

agents with concealed cameras who obtained consent to enter an oph-

thalmic clinic by pretending to be patients were not trespassers

because, among other things, they "entered offices open to anyone");

Baugh v. CBS, Inc., 828 F. Supp. 745, 757 (N.D. Cal. 1993) ("where

consent was fraudulently induced, but consent was nonetheless given,

plaintiff has no claim for trespass"); and Martin v. Fidelity & Cas.
Co.

of New York, 421 So.2d 109, 111 (Ala. 1982) (consent to enter is

valid "even though consent may have been given under a mistake of

facts, or procured by fraud") (citation omitted).

17

We like Desnick's thoughtful analysis about when a consent to

enter that is based on misrepresentation may be given effect. In

Desnick ABC sent persons posing as patients needing eye care to the

plaintiffs' eye clinics, and the test patients secretly recorded their

examinations. Some of the recordings were used in a PrimeTime Live

segment that alleged intentional misdiagnosis and unnecessary cata-

ract surgery. Desnick held that although the test patients misrepre-

sented their purpose, their consent to enter was still valid because
they

did not invade "any of the specific interests[relating to peaceable
pos-

session of land] the tort of trespass seeks to protect:" the test
patients

entered offices "open to anyone expressing a desire for ophthalmic

services" and videotaped doctors engaged in professional discussions

with strangers, the testers; the testers did not disrupt the offices
or

invade anyone's private space; and the testers did not reveal
the "inti-

mate details of anybody's life." 44 F.3d at 1352-53. Desnick sup-

ported its conclusion with the following comparison:

"Testers" who pose as prospective home buyers in order to

gather evidence of housing discrimination are not trespass-

ers even if they are private persons not acting under color

of law. The situation of [ABC's] "testers" is analogous. Like

testers seeking evidence of violation of anti-discrimination

laws, [ABC's] test patients gained entry into the plaintiffs'

premises by misrepresenting their purposes (more precisely

by a misleading omission to disclose those purposes). But

the entry was not invasive in the sense of infringing the kind

of interest of the plaintiffs that the law of trespass protects;

it was not an interference with the ownership or possession

of land.

Id. at 1353 (citation omitted).4

We return to the jury's first trespass finding in this case, which

rested on a narrow ground. The jury found that Dale and Barnett were

trespassers because they entered Food Lion's premises as employees

with consent given because of the misrepresentations in their job

applications. Although the consent cases as a class are inconsistent,

_________________________________________________________________

4 Desnick noted in a separate discussion that the test patients were
not

sent in to commit a tort or some other injurious act. 44 F.3d at 1353.

18

we have not found any case suggesting that consent based on a

resume misrepresentation turns a successful job applicant into a tres-

passer the moment she enters the employer's premises to begin work.

Moreover, if we turned successful resume fraud into trespass, we

would not be protecting the interest underlying the tort of trespass -
-

the ownership and peaceable possession of land. See Desnick, 44 F.2d

at 1352; see generally Matthews v. Forrest, 69 S.E.2d 553, 555 (N.C.

1952); Ravan, 434 S.E.2d at 306. Accordingly, we cannot say that

North and South Carolina's highest courts would hold that misrepre-

sentation on a job application alone nullifies the consent given to an

employee to enter the employer's property, thereby turning the

employee into a trespasser. The jury's finding of trespass therefore

cannot be sustained on the grounds of resume misrepresentation.

There is a problem, however, with what Dale and Barnett did after

they entered Food Lion's property. The jury also found that the

reporters committed trespass by breaching their duty of loyalty to

Food Lion "as a result of pursuing [their] investigation for ABC." We

affirm the finding of trespass on this ground because the breach of

duty of loyalty -- triggered by the filming in non-public areas, which

was adverse to Food Lion -- was a wrongful act in excess of Dale

and Barnett's authority to enter Food Lion's premises as employees.

See generally Blackwood, 254 S.E.2d at 9 (finding liability for tres-

pass when activity on property exceeded scope of consent to enter).

The Court of Appeals of North Carolina has indicated that secretly

installing a video camera in someone's private home can be a wrong-

ful act in excess of consent given to enter. In the trespass case of

Miller v. Brooks the (defendant) wife, who claimed she had consent

to enter her estranged husband's (the plaintiff's) house, had a
private

detective place a video camera in the ceiling of her husband's bed-

room. The court noted that "[e]ven an authorized entry can be trespass

if a wrongful act is done in excess of and in abuse of authorized

entry." Miller, 472 S.E.2d at 355. The court went on to hold that

"[e]ven if [the wife] had permission to enter the house and to autho-

rize others to do so," it was a jury question"whether defendants'

entries exceeded the scope of any permission given." Id. We recog-

nize that Miller involved a private home, not a grocery store, and
that

it involved some physical alteration to the plaintiff's property
(instal-

lation of a camera). Still, we believe the general principle is
applica-

19

ble here, at least in the case of Dale, who worked in a Food Lion
store

in North Carolina. Although Food Lion consented to Dale's entry to

do her job, she exceeded that consent when she videotaped in non-

public areas of the store and worked against the interests of her sec-

ond employer, Food Lion, in doing so.

We do not have a case comparable to Miller from South Carolina.

Nevertheless, the South Carolina courts make clear that the law of

trespass protects the peaceable enjoyment of property. See Ravan, 434

S.E.2d at 306. It is consistent with that principle to hold that
consent

to enter is vitiated by a wrongful act that exceeds and abuses the
priv-

ilege of entry.

Here, both Dale and Barnett became employees of Food Lion with

the certain consequence that they would breach their implied prom-

ises to serve Food Lion faithfully. They went into areas of the stores

that were not open to the public and secretly videotaped, an act that

was directly adverse to the interests of their second employer, Food

Lion. Thus, they breached the duty of loyalty, thereby committing a

wrongful act in abuse of their authority to be on Food Lion's prop-

erty.

In sum, we are convinced that the highest courts of North and

South Carolina would hold that Dale and Barnett committed trespass

because Food Lion's consent for them to be on its property was nulli-

fied when they tortiously breached their duty of loyalty to Food Lion.

Accordingly, as far as North and South Carolina law is concerned, the

jury's trespass verdict should be sustained.

4.

Dale worked in a Food Lion store in North Carolina. Based on the

jury's finding of fraud and a special interrogatory, the district
court

determined that ABC and Dale were liable under the North Carolina

UTPA, N.C. Gen. Stat. § 75-1.1. Because Food Lion elected to take

damages on the fraud claim, the district court awarded no damages on

the UTPA claim. ABC argues that the Act does not apply to the cir-

cumstances of this case, and we agree.

20

North Carolina's UTPA prohibits "[u]nfair methods of competi-

tion" and "unfair or deceptive acts or practices" that are "in or
affect-

ing commerce." N.C. Gen. Stat. § 75-1.1(a)."Commerce" is defined

to include "all business activities, however denominated." N.C. Gen.

Stat. § 75-1.1(b). Food Lion contends that Dale's misrepresentations

on her job application were "deceptive acts""in or affecting com-

merce" because they were made to further the production of

PrimeTime Live, a business activity.

Although the UTPA's language is quite broad, "the Act is not

intended to apply to all wrongs in a business setting." HAJMM Co.

v. House of Raeford Farms, Inc., 403 S.E.2d 483, 492 (N.C. 1991).

The Act's primary purpose is to protect the consuming public. See

Skinner v. E.F. Hutton & Co., Inc., 333 S.E.2d 236, 241 (N.C. 1985).

It gives a private cause of action to consumers aggrieved by unfair or

deceptive business practices. See Marshall v. Miller, 276 S.E.2d 397,

400 (N.C. 1981). In addition, businesses are sometimes allowed to

assert UTPA claims against other businesses because"unfair trade

practices involving only businesses" can "affect the consumer as

well." United Labs., Inc. v. Kuykendall, 370 S.E.2d 375, 389 (N.C.

1988). But one business is permitted to assert an UTPA claim against

another business only when the businesses are competitors (or poten-

tial competitors) or are engaged in commercial dealings with each

other. See, e.g., Winston Realty Co. v. G.H.G., Inc., 331 S.E.2d 677

(N.C. 1985) (UTPA applies when temporary personnel agency falsely

claims to have conducted background checks of workers it sends to

companies); Harrington Mfg. Co. v. Powell Mfg. Co., 248 S.E.2d 739

(N.C. Ct. App. 1979) (UTPA applies when manufacturer passes off

its competitor's goods as those of its own); Concrete Serv. Corp. v.

Investors Group, Inc., 340 S.E.2d 755, 760-61 (N.C. Ct. App. 1986)

(UTPA covers acts intended to deceive suppliers into extending

credit). In any event, the fundamental purpose of the UTPA is to pro-

tect the consumer, and courts invariably look to that purpose in
decid-

ing whether the Act applies. See Lindner v. Durham Hosiery Mills,

Inc., 761 F.2d 162, 165-67 (4th Cir. 1985).

The district court found an UTPA violation because ABC is a busi-

ness that engaged in deception. However, the deception -- the mis-

representations in Dale's application -- did not harm the consuming

public. Presumably, ABC intended to benefit the consuming public by

21

letting it know about Food Lion's food handling practices. Moreover,

ABC was not competing with Food Lion, and it did not have any

actual or potential business relationship with the grocery chain. The

UTPA, therefore, cannot be used here because there is no competitive

or business relationship that can be policed for the benefit of the
con-

suming public. The North Carolina statute has not been applied to a

circumstance like this, and we believe the Supreme Court of North

Carolina would hold that it should not be. We therefore reverse the

district court's judgment that the ABC defendants, including Dale,

were liable under the North Carolina UTPA.

B.

ABC argues that even if state tort law covers some of Dale and

Barnett's conduct, the district court erred in refusing to subject
Food

Lion's claims to any level of First Amendment scrutiny. ABC makes

this argument because Dale and Barnett were engaged in newsgather-

ing for PrimeTime Live. It is true that there are "First Amendment

interests in newsgathering." In re Shain, 978 F.2d 850, 855 (4th Cir.

1992) (Wilkinson J., concurring). See also Branzburg v. Hayes, 408

U.S. 665, 681 (1972) ("without some protection for seeking out the

news, freedom of the press could be eviscerated."). However, the

Supreme Court has said in no uncertain terms that"generally applica-

ble laws do not offend the First Amendment simply because their

enforcement against the press has incidental effects on its ability to

gather and report the news." Cohen v. Cowles Media Co., 501 U.S.

663, 669 (1991); see also Desnick, 44 F.3d at 1355 ("the media have

no general immunity from tort or contract liability").

In Cowles, Cohen, who was associated with a candidate for gover-

nor of Minnesota, gave damaging information about a candidate for

another office to two reporters on their promise that his (Cohen's)

identity would not be disclosed. Because editors at the reporters'

newspapers concluded that the source was an essential part of the

story, it was published with Cohen named as the origin. Cohen was

fired from his job as a result, and he sued the newspapers for
breaking

the promise. The question in the Supreme Court was whether the First

Amendment barred Cohen from recovering damages under state

promissory estoppel law. The newspapers argued that absent "a need

to further a state interest of the highest order," the First Amendment

22

protected them from liability for publishing truthful information,
law-

fully obtained, about a matter of public concern. Id. at 668-69 (quot-

ing Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979)). The

Supreme Court disagreed, holding that the press"has no special

immunity from the application of general laws" and that the enforce-

ment of general laws against the press "is not subject to stricter
scru-

tiny than would be applied to enforcement against other persons or

organizations." Id. at 670 (quoting Associated Press v. NLRB, 301

U.S. 103, 132 (1937)).

The key inquiry in Cowles was whether the law of promissory

estoppel was a generally applicable law. The Court began its analysis

with some examples of generally applicable laws that must be obeyed

by the press, such as those relating to copyright, labor, antitrust,
and

tax. Id. at 669. More relevant to us, "[t]he press may not with impu-

nity break and enter an office or dwelling to gather news." Id. In
ana-

lyzing the doctrine of promissory estoppel, the Court determined that

it was a law of general applicability because it"does not target or
sin-

gle out the press," but instead applies "to the daily transactions of
all

the citizens of Minnesota." Id. at 670. The Court concluded that "the

First Amendment does not confer on the press a constitutional right

to disregard promises that would otherwise be enforced under state

law." Id. at 672. The Court thus refused to apply any heightened scru-

tiny to the enforcement of Minnesota's promissory estoppel law

against the newspapers.

The torts Dale and Barnett committed, breach of the duty of loyalty

and trespass, fit neatly into the Cowles framework. Neither tort
targets

or singles out the press. Each applies to the daily transactions of
the

citizens of North and South Carolina. If, for example, an employee of

a competing grocery chain hired on with Food Lion and videotaped

damaging information in Food Lion's non-public areas for later dis-

closure to the public, these tort laws would apply with the same force

as they do against Dale and Barnett here. Nor do we believe that

applying these laws against the media will have more than an "inci-

dental effect" on newsgathering. See Cowles , 501 U.S. at 669, 671-72.

We are convinced that the media can do its important job effectively

without resort to the commission of run-of-the-mill torts.5

_________________________________________________________________

5 Indeed, the ABC News Policy Manual states that "news gathering of

whatever sort does not include any license to violate the law."

23

ABC argues that Cowles is not to be applied automatically to every

"generally applicable law" because the Supreme Court has since said

that "the enforcement of [such a] law may or may not be subject to

heightened scrutiny under the First Amendment." Turner Broad. Sys.,

Inc. v. FCC, 512 U.S. 622, 640 (1994) (contrasting Barnes v. Glen

Theatre, Inc., 501 U.S. 560 (1991), and Cowles). In Glen Theatre

nude dancing establishments and their dancers challenged a generally

applicable law prohibiting public nudity. Because the general ban on

public nudity covered nude dancing, which was expressive conduct,

the Supreme Court applied heightened scrutiny. Glen Theatre, 501

U.S. at 566. In Cowles a generally applicable law (promissory estop-

pel) was invoked against newspapers who broke their promises to a

source that they would keep his name confidential in exchange for

information leading to a news story. There, the Court refused to apply

heightened scrutiny, concluding that application of the doctrine of

promissory estoppel had "no more than [an] incidental" effect on the

press's ability to gather or report news. Cowles , 501 U.S. at 671-72.

There is arguable tension between the approaches in the two cases.

The cases are consistent, however, if we view the challenged conduct

in Cowles to be the breach of promise and not some form of expres-

sion. In Glen Theatre, on the other hand, an activity directly covered

by the law, nude dancing, necessarily involved expression, and

heightened scrutiny was applied. Here, as in Cowles, heightened scru-

tiny does not apply because the tort laws (breach of duty of loyalty

and trespass) do not single out the press or have more than an
inciden-

tal effect upon its work.

C.

For the foregoing reasons, we affirm the judgment that Dale and

Barnett breached their duty of loyalty to Food Lion and committed

trespass. We likewise affirm the damages award against them for

these torts in the amount of $2.00. We have already indicated that the

fraud claim against all of the ABC defendants must be reversed.

Because Food Lion was awarded punitive damages only on its fraud

claim, the judgment awarding punitive damages cannot stand.

III.

In its cross-appeal Food Lion argues that the district court erred in

refusing to allow it to use its non-reputational tort claims (breach
of

24

duty of loyalty, trespass, etc.) to recover compensatory damages for

ABC's broadcast of the PrimeTime Live program that targeted Food

Lion. The publication damages Food Lion sought (or alleged) were

for items relating to its reputation, such as loss of good will and
lost

sales. The district court determined that the publication damages

claimed by Food Lion "were the direct result of diminished consumer

confidence in the store" and that "it was[Food Lion's] food handling

practices themselves -- not the method by which they were recorded

or published -- which caused the loss of consumer confidence." Food

Lion, Inc. v. Capital Cities/ABC, Inc., 964 F. Supp. 956, 963

(M.D.N.C. 1997). The court therefore concluded that the publication

damages were not proximately caused by the non-reputational torts

committed by ABC's employees. We do not reach the matter of prox-

imate cause because an overriding (and settled) First Amendment

principle precludes the award of publication damages in this case, as

ABC has argued to the district court and to us. Food Lion attempted

to avoid the First Amendment limitations on defamation claims by

seeking publication damages under non-reputational tort claims, while

holding to the normal state law proof standards for these torts. This

is precluded by Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

Food Lion acknowledges that it did not sue for defamation because

its "ability to bring an action for defamation . . . required proof
that

ABC acted with actual malice." Appellee's Opening Br. at 44. Food

Lion thus understood that if it sued ABC for defamation it would have

to prove that the PrimeTime Live broadcast contained a false state-

ment of fact that was made with "actual malice," that is, with knowl-

edge that it was false or with reckless disregard as to whether it was

true or false. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-

80 (1964). It is clear that Food Lion was not prepared to offer proof

meeting the New York Times standard under any claim that it might

assert. What Food Lion sought to do, then, was to recover

defamation-type damages under non-reputational tort claims, without

satisfying the stricter (First Amendment) standards of a defamation

claim. We believe that such an end-run around First Amendment

strictures is foreclosed by Hustler.

In Hustler a popular liquor advertisement prompted the magazine

to run a parody of the ad, labeled as such, that featured the Reverend

Jerry Falwell "discussing" an incestuous sexual act he had undertaken

25

while drunk in disgusting circumstances. Falwell sued the magazine

and its publisher, Larry Flynt, seeking damages for libel and inten-

tional infliction of emotional distress. At trial the jury held
against

Falwell on the libel claim, specifically finding that the ad parody

could not reasonably be understood as describing actual facts about

Falwell or actual events in which he participated. The jury, however,

found for Falwell on the emotional distress claim and awarded com-

pensatory and punitive damages.

It was clear that Falwell, in asserting the claim for intentional

infliction of emotional distress, sought "damages for emotional harm

caused by the publication of an ad parody offensive to him." Hustler,

485 U.S. at 50 (emphasis added). In the Supreme Court the question

was whether Falwell had to satisfy the heightened First Amendment

proof standard set forth in New York Times. After concluding that the

ad parody was protected expression, the Court, in an opinion by Chief

Justice Rehnquist, held that the constitutional libel standard applied

to Falwell's emotional distress claim:

We conclude that public figures and public officials may

not recover for the tort of intentional infliction of emotional

distress by reason of publications such as the one here at

issue without showing in addition that the publication con-

tains a false statement of fact which was made with"actual

malice," i.e., with knowledge that the statement was false or

with reckless disregard as to whether or not it was true.

Hustler, 485 U.S. at 56.

Hustler confirms that when a public figure plaintiff uses a law to

seek damages resulting from speech covered by the First Amendment,

the plaintiff must satisfy the proof standard of New York Times. Here,

Food Lion was not prepared to meet this standard for publication

damages under any of the claims it asserted. Unless there is some way

to distinguish Hustler (we think there is not, see below), Food Lion

cannot sustain its request for publication damages from the ABC

broadcast.

Food Lion argues that Cowles, supra, and not Hustler governs its

claim for publication damages. According to Food Lion, Cowles

26

allowed the plaintiff to recover -- without satisfying the constitu-

tional prerequisites to a defamation action -- economic losses for

publishing the plaintiff's identity in violation of a legal duty
arising

from generally applicable law. Food Lion says that its claim for dam-

ages is like the plaintiff's in Cowles, and not like Falwell's in
Hustler.

This argument fails because the Court in Cowles distinguished the

damages sought there from those in Hustler in a way that also distin-

guishes Food Lion's case from Cowles:

Cohen is not seeking damages for injury to his reputation or

his state of mind. He sought damages . . . for breach of a

promise that caused him to lose his job and lowered his

earning capacity. Thus, this is not a case like Hustler . . .

where we held that the constitutional libel standards apply

to a claim alleging that the publication of a parody was a

state-law tort of intentional infliction of emotional distress.

Cowles, 501 U.S. at 671. Food Lion, in seeking compensation for

matters such as loss of good will and lost sales, is claiming reputa-

tional damages from publication, which the Cowles Court distin-

guished by placing them in the same category as the emotional

distress damages sought by Falwell in Hustler . In other words,

according to Cowles, "constitutional libel standards" apply to damage

claims for reputational injury from a publication such as the one
here.

Food Lion also argues that because ABC obtained the videotapes

through unlawful acts, that is, the torts of breach of duty of loyalty

and trespass, it (Food Lion) is entitled to publication damages
without

meeting the New York Times standard. The Supreme Court has never

suggested that it would dispense with the Times standard in this
situa-

tion, and we believe Hustler indicates that the Court would not. In

Hustler the magazine's conduct would have been sufficient to consti-

tute an unlawful act, the intentional infliction of emotional
distress,

if state law standards of proof had applied. Indeed, the Court said,

"[g]enerally speaking the law does not regard the intent to inflict
emo-

tional distress as one which should receive much solicitude." Hustler,

485 U.S. at 53. Notwithstanding the nature of the underlying act, the

Court held that satisfying New York Times was a prerequisite to the

recovery of publication damages. That result was"necessary," the

27

Court concluded, in order "to give adequate `breathing space' to the

freedoms protected by the First Amendment." Id. at 56.

In sum, Food Lion could not bypass the New York Times standard

if it wanted publication damages. The district court therefore reached

the correct result when it disallowed these damages, although we

affirm on a different ground.

IV.

To recap, we reverse the judgment to the extent it provides that the

ABC defendants committed fraud and awards compensatory damages

of $1,400 and punitive damages of $315,000 on that claim; we affirm

the judgment to the extent it provides that Dale and Barnett breached

their duty of loyalty to Food Lion and committed a trespass and

awards total damages of $2.00 on those claims; we reverse the judg-

ment to the extent it provides that the ABC defendants violated the

North Carolina UTPA; and we affirm the district court's ruling that

Food Lion was not entitled to prove publication damages on its

claims.

From El Financiero (the Wall Street Journal type daily newspaper in Mexico
City), November 24, 1999

“The Firm”

Robert S. Strauss, an old friendship

Washington DC, November 22, 1999: In tenth place among the most influential
and expensive lawyers in the American Union, according to the National Law
Journal, Akin Gump, Strauss, Hauer and Feld is the Capitol firm of the Hank
family.

The key man is Robert S. Strauss, an old politician that has been leader of
the Democratic Party, Ambassador to the Soviet Union and the Russian
Federation, commercial representative of Jimmy Carter and Middle East peace
negotiator.

Strauss doesn’t hide his old friendship with Carlos Hank González, a
friendship that’s beginnings are unknown, but has survived the years.

“Carlos Hank González is a very dear friend, one for whom I have a great
respect and admiration,” Strauss told this correspondent last May.

Strauss shields himself in the confidentiality privilege that unites clients
and attorneys to decline to confirm if he is legal representative of Hank
González.

In recent days, Akin Gump Strauss…, also was contracted by Carlos Hank Rohn
to represent him in his problems with the Federal Reserve.

The attorney in charge of the case is John M. Dowd, who specializes in civil
and criminal crime and who has the fame of representing “complicated cases.”

According to his resume, he has “succesfully” represent a district court
judge, a prosecutor, an Air Force colonel in the Irangate trials, two
senators and, recently, the governor of Arizona.

Akin Gump, Strauss, Hauer and Feld have a total of 780 lawyers with starting
salaries of between 74 and 95 thousand dollars a year, depending on the
city.


--

Original in Spanish:

La firma. Robert S. Strauss, una vieja amistad

WASHINGTON, DC, 22 de noviembre.-- En el décimo lugar entre los 250
despachos de abogados más influyentes y caros
de la Unión Americana, según The National Law Journal, Akin, Gump,
Strauss, Hauer & Field es la firma capitalina de los
Hank.

El hombre clave es Robert S. Strauss, un viejo político que ha sido
líder del Partido Demócrata, embajador en la Unión
Soviética y la Federación Rusa, representante comercial de Jimmy Carter
y negociador de la paz en el Medio Oriente.

Strauss no oculta su vieja amistad con Carlos Hank González, cuyos
inicios se desconocen, pero que ha sobrevivido a través
de los años.

"Carlos Hank González es un amigo muy querido, uno al que tengo gran
respeto y admiración", dijo Strauss a la
corresponsal en mayo pasado.

Strauss se escuda en el privilegio de confidencialidad que une a
clientes y abogados para declinar confirmar si es
representante legal de Hank González.

En fechas recientes, Akin, Gum, Strauss..., también fue contratada por
Carlos Hank Rhon para que lo represente en sus líos
con la Reserva Federal.

El abogado a cargo del caso es John M. Dowd, que se especializa en
delitos del orden civil y criminal y que tiene fama de
representar "casos complejos".

Según su currículum, ha representado "exitosamente" a un juez de
distrito, un fiscal, un coronel de la Fuerza Aérea en las
audiencias sobre el Irangate, a dos senadores y recientemente al
gobernador de Arizona.

Axim, Gum, Strauss, Hauer & Feld tiene un total de 780 abogados con
salarios iniciales de entre 74 y 95 mil dólares
anuales, dependiendo de la ciudad.

FECHA: 19991124

_________________________________________________________________________
Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com.

Book about Carlos Hank mentions Strauss

This is a translation from pages 231 and 232 of Las Enseñanzas del
Profesor (The Teachings of the Professor, 1999, Oceano) by José
Martínez M., a book about Professor Carlos Hank González.

The Chapter is on former Tabasco state governor Roberto Madrazo
Pintado, titled: "Madrazo: Hank's Puppy"

"But the most important support for the projection of Madrazo Pintado
is Hank González, inside and outside of the federation.

"Lacking connections in the high spheres of power in the United
States, the politician from Tabasco returned to the contacts of the
Professor with one of the elites of the US establishment. In mid
March 1999 was held the first meeting between Madrazo Pintado and
Robert Strauss, one of the most influential politicians in the
Democratic Party and who occupied important cabinet posts in various
administrations. Strauss made gestures so that he would be received
by the senior Democrat Robert Toricelli, the Republicans Tom Delay
and Benjamin Gilman. On the governmental level he was received only
by John Leonard, assistant subsecretary of American Affairs.

"The US government has seen Madrazo Pintado with distrust for being
connected with (prosecuted narco banker Carlos) Cabal Peniche and
other presumed money launderers like Paul Karam Kassab, Nicholas
Nassif, Máximo Haddad Abed, Alberto Murguía Orozco, Arturo Lomelí
Villalobos and Eduardo Hernández Triana. All of them are under
investigation - according to the classified reports of the National
Drug Intelligence Center (NDIC) - and are related by this
organization with Carlos Hank González, mentioned for being connected
with drug trafficking.

"Although Strauss accepted to intercede in Washington for Madrazo
Pintado, the firm Akin, Gump and Strauss, in which he is a partner,
strongly denied that it lobbies in favor of the Tabasco
politician..."

Akin Gump represented the Mexican government
before the US Congress under the ruling PRI party.

Here is the quote from the Mexican daily La Jornada, in Spanish, and
then a translation:

La Jornada 10 de septiembre de 1998
Empresarios de EU han gastado 250 mil mdd comprando favores de
congresistas, dice ONG

Pero se sabe que, por ejemplo, el gobierno mexicano --junto con
muchos otros-- no ha permanecido al margen y que por lo menos uno de
los bufetes de abogados contratados por la embajada de México a
principios de los 90, Akin, Gump, Strauss, Hauer and Feld, fue
señalado en el informe como uno de los cinco principales donantes de
miembros del Senado.

La Jornada, Sept. 10 1998

US Businessmen spent 250 billion buying favors from congressmen, says
NGO

...But it is known that, for example, the Mexican government - along
with many others - has not stayed on the sidelines and that at least
one of the law firms contracted by the Mexican embassy in the early
1990s, Akin, Gump, Strauss, Hauer and Feld, was mentioned in the
report as one of the five major donors to members of the senate.

From the Akin Gump web site:

Vernon E. Jordan Jr. is of counsel at Akin, Gump, Strauss, Hauer &
Feld, L.L.P. and practices general, corporate, legislative and
international law.

Prior to joining Akin Gump in January 1982, Mr. Jordan served as
president and chief executive officer of the National Urban League,
Inc.; executive director of the United Negro College Fund, Inc.;
director of the Voter Education Project of the Southern Regional
Council; attorney-consultant at the U.S. Office of Economic
Opportunity; assistant to the executive director of the Southern
Regional Council; Georgia field director of the National Association
for the Advancement of Colored People; and an attorney in private
practice in Arkansas and Georgia.

A graduate of DePauw University and the Howard University Law School,
Mr. Jordan is a member of the Bars of Arkansas, the District of
Columbia, Georgia and the U.S. Supreme Court. He is a member of the
American Bar Association, the National Bar Association and The
Bilderberg Meetings. Mr. Jordan serves on the board of governors of
the Joint Center for Political and Economic Studies, and is a member
of the Council on Foreign Relations and the Trilateral Commission.
His directorships include: American Express Company; AMFM, Inc.;
Callaway Golf Company; Dow Jones & Company, Inc.; Howard University;
J.C. Penney Company, Inc.; Revlon Group; Ryder System, Inc.; Sara Lee
Corporation; Union Carbide Corporation; Xerox Corporation; LBJ
Foundation; Daimler-Benz; Fuji-Wolfensohn; and Barrick Gold.

Mr. Jordan's presidential appointments include: the President's
Advisory Committee for the Points of Light Initiative Foundation; the
Secretary of State's Advisory Committee on South Africa; the Advisory
Council on Social Security; the Presidential Clemency Board; the
American Revolution Bicentennial Commission; the National Advisory
Committee on Selective Service; and the Council of the White House
Conference "To Fulfill These Rights." In 1992 Mr. Jordan served as
the chairman of the Clinton Presidential Transition Team.

Mr. Jordan has received numerous honorary degrees and awards in
recognition of his accomplishments. In addition, he has authored a
weekly newspaper column that appeared in over 300 newspapers, has
broadcast commentaries on current issues for the Westinghouse
Broadcast Network, and has been a frequent guest on major national
television broadcasts, including "Meet the Press," "Issues &
Answers," and "Face the Nation."

From the Akin Gump web site:

Robert S. Strauss' business, community and public service activities
cover a broad spectrum. Raised in the small West Texas town of
Stamford, he served as a special agent of the FBI after earning his
law degree from the University of Texas. In 1945 he entered private
law practice and founded the firm that became Akin, Gump, Strauss,
Hauer & Feld, L.L.P., which today has offices in Washington, Texas,
New York, Philadelphia, Los Angeles, Northern Virginia, Denver,
Brussels, Moscow and London.

Mr. Strauss served as chairman of the Democratic National Committee
from 1973 to 1976. He also served as chairman of President Carter's
election campaigns in 1976 and 1980. In 1977 Mr. Strauss entered the
Cabinet of President Carter, serving as special trade representative.
Over the next two and one-half years, he successfully concluded the
Tokyo Round of Multilateral Trade Negotiations and directed its
passage through Congress, which culminated in the Trade Act of 1979.

Following completion of the trade agreements, President Carter asked
Mr. Strauss to serve as his personal representative to the Middle
East Peace Negotiations. In 1981 Mr. Strauss was awarded the
Presidential Medal of Freedom, the nation's highest civilian award.

In August 1991 he was sworn in as the U.S. ambassador to the Soviet
Union. Following the dissolution of the Soviet Union, Ambassador
Strauss became the U.S. ambassador to the Russian Federation. He
resigned from the Foreign Service on November 19, 1992, and again
returned to private practice at Akin Gump.

A popular lecturer, Mr. Strauss speaks extensively in the United
States and abroad and has authored many papers for professional
journals, newspapers and magazines. He has served on the boards of
directors of numerous U.S. corporations and public institutions. Mr.
Strauss has occupied the Lloyd Bentsen Chair at the LBJ School of
Public Affairs at the University of Texas, where he lectured to
students of law, business and public affairs. He serves as chairman
of the U.S.-Russia Business Council, is a member of the Council on
Foreign Affairs and is a trustee of the Center for Strategic and
International Studies.

From the Akin Gump web site:

Michael J. Madigan is a partner and a senior trial lawyer at Akin,
Gump, Strauss, Hauer & Feld, L.L.P. in Washington. He returned to the
firm in January 1998 after serving as Chief Counsel to Senator Fred
Thompson, where he supervised a staff of sixty lawyers and
investigators to prepare and present the televised Congressional
Hearings on campaign finance abuse and reform.

At Akin Gump, Mr. Madigan has been principally engaged in complex
civil trial and white collar criminal litigation. He is listed in The
Best Lawyers in America and his clients have included Fortune 100
companies, corporate officers and directors, and individual
plaintiffs. In his 25 years of experience, Mr. Madigan has
successfully defended members of Congress and other clients in
Koreagate, IranContra and other congressional investigations. He has
litigated in federal and state courts throughout the country.

Mr. Madigan is actively involved in the D.C. Bar and was elected to
two terms as a member of the D.C. Bar Board of Governors. He has
served as a member of the District of Columbia Federal Judicial
Nominating Commission, which nominates candidates for judicial
appointments to the United States District Court for the District of
Columbia, and as a member of the District of Columbia Judicial
Nomination Commission, which selects all local judges. Mr. Madigan
served as Vice Chairman of the Magistrate-Judge Selection Committee
and as a member of the D.C. Conference on Opportunities for
Minorities in the Legal Profession. He also served as a member of the
D.C. Circuit Task Force (with judges from the District Court and
Court of Appeals) to study gender, race and ethnic bias and is a
longtime appointed member of both the Judicial Conference of the
District of Columbia Circuit and the Judicial Conference of the
District of Columbia. He is a member of the Barristers and the
Counselors.

Prior to joining Akin Gump, Mr. Madigan served as Assistant Minority
Counsel to the Senate Watergate Committee, counsel to Senator Howard
Baker on the Church Committee and Minority Counsel on the Senate
Intelligence Committee. He tried over 100 cases and conducted
numerous grand jury investigations as an Assistant U.S. Attorney for
the District of Columbia. Upon graduation from Catholic University
law school, Mr. Madigan clerked for the Honorable Edward A. Tamm at
the U.S. Court of Appeals for the District of Columbia Circuit.

Mr. Madigan teaches trial advocacy at National Institute of Trial
Advocacy (NITA) programs and serves as a television commentator with
several networks.

Mr. Madigan is the father of two daughters (Molly and Shana). His
outside interests include running, tennis, skiing and Republican
politics.

From the Akin Gump web site:

Shari L. Fleishman is counsel in the litigation and technology
practice groups of Akin, Gump, Strauss, Hauer & Feld, L.L.P. in
Washington. Her practice is primarily devoted to commercial and
complex civil litigation, including breach of contract, business
torts, trade secrets, False Claims Act and Fair Labor Standards Act
litigation.

Ms. Fleishman is experienced in all aspects of civil litigation
before state and federal tribunals. As a member of the firm's
technology practice group, she represents mature and start-up
technology and Internet companies in litigation matters ranging from
complex fraud and breach of contract to employment-related issues.

Currently, Ms. Fleishman represents one of the nation's largest
online information services companies in litigation under the Fair
Labor Standards Act, and has represented the company in several other
matters, including litigation under state and federal computer fraud
statutes, complex contract claims against companies providing
consumer content for the service and a variety of business torts.

Ms. Fleishman was one of the lawyers who represented the owners of a
Sudanese pharmaceutical plant in successful litigation brought
against the Office of Foreign Assets Control and the Bank of America
to release approximately $25 million in assets that were frozen
subsequent to the bombing of the plant by the U.S. government in
August 1998.

Recently, as counsel to a plaintiff in a trade secrets case, Ms.
Fleishman successfully concluded the matter with the seizure and
return of all confidential documents. She was on the team of lawyers
who obtained a successful settlement for Volkswagen A.G. in the
RICO/trade secrets litigation brought by General Motors that involved
the departure of a GM purchasing executive who was hired by
Volkswagen. In addition, Ms. Fleishman has litigated a variety of
securities claims in federal court as well as before an arbitration
panel. She also has extensive litigation experience in federal court,
advocating international, federal and state law in the area of
international child abduction.

Before joining Akin Gump, Ms. Fleishman was a law clerk to the
Honorable Frank A. Kaufman, U.S. District Court for the District of
Maryland, from 1992 to 1993.

Ms. Fleishman received her A.B. summa cum laude from Duke University
in 1989, where she was elected to Phi Beta Kappa. She received her
J.D. from Harvard Law School in 1992. She is a member of the District
of Columbia and Maryland Bars, and is also admitted to practice
before the U.S. Court of Appeals for the 4th Circuit, the U.S.
District Court for the District of Maryland, the U.S. District Court
for the District of Columbia, and the U.S. District Court for the
Western District of Michigan. Ms. Fleishman is also a member of the
American Bar Association and the Women's Bar Association.

From the Akin Gump web site:

Sean E. O'Donnell is an associate in the litigation practice area in
the New York office of Akin, Gump, Strauss, Hauer & Feld, L.L.P.

Mr. O'Donnell focuses on complex commercial litigation, including
securities actions, contract disputes, corporate raiding, partnership
disputes, trademark infringement and banking litigation. Most
recently, he was involved in a dispute between shareholders, an
issuer and an underwriter concerning the suitability of floorless
convertible preferred share financing.

Prior to joining Akin Gump, Mr. O'Donnell was an associate at
Bachner, Tally, Polevoy & Misher LLP. He received his B.A. in 1993
from the State University of New York at Oswego and his J.D. in 1997
from the Fordham University School of Law. During law school, Mr.
O'Donnell was a summer clerk for the Honorable Francis X. Alitmari of
the U.S. Court of Appeals for the 2nd Circuit and was actively
involved in Fordham's Moot Court Board. Mr. O'Donnell judges moot
court competitions and is the co-author of "Trademark Dilution Proof
in Flux," New York Law Journal (February 14, 2000).

From Akin Gump web site:

Thomas P. McLish is a partner in the litigation practice group of
Akin, Gump, Strauss, Hauer & Feld, L.L.P. in Washington. Since
joining the firm in 1995, he has focused on complex litigation in
state and federal courts.

With extensive trial and appellate experience, Mr. McLish
concentrates primarily on complex commercial litigation, including
securities fraud, trade secrets, government contracts, white collar
defense, labor law matters and media-related disputes. His experience
includes a principal role at both the trial and appellate levels in
Food Lion's landmark lawsuit against ABC arising out of the network's
tortious hidden camera investigation of the company. Mr. McLish has
also represented clients in grand jury, independent counsel,
congressional and media investigations into such matters as alleged
campaign finance abuses and improper gifts to government officials.

From 1990 to 1995 Mr. McLish was a trial attorney with the U.S.
Department of Justice, Civil Division, Commercial Litigation Branch.
In that position, he handled civil contract, fraud and federal labor
law disputes, including major weapons system procurement,
construction and Fifth Amendment "takings." From 1989 to 1990, he was
a law clerk to the Honorable Robert P. Patterson Jr. of the U.S.
District Court for the Southern District of New York.

Mr. McLish received his B.A. cum laude in psychology and literature
in 1986 from Claremont McKenna College and his J.D. in 1988 from
Columbia Law School, where he was an Editor of the Columbia Law
Review. Mr. McLish is a member of the Bars of the District of
Columbia and New York and is admitted to practice before various
federal trial and appellate courts.

"Understanding How Governments Work"

an promotional essay from the Akin Gump Web Site
that takes on interesting contexts given their
international effort to prosecute journalists
on behalf of the largest bank in Mexico:

http://www.akingump.com/

The last half century has seen an explosion of government at every
level.

Akin Gump was born in the midst of this trend.

To work effectively with government, you need to understand the
rhythms, personalities and idiosyncrasies of Washington and other
capitals.

When an industry is threatened or legislative and political reform
warrant strategic positioning, we help shape the issues and structure
a rational approach. Akin Gump lawyers understand how decisions are
made, which arguments will work, how to assemble coalitions, how to
advocate legislative action - and when to litigate.

Akin Gump lawyers understand how events shape markets.

Most of the issues that clients bring us involve change.

Our growth has come by understanding client problems and solving them
with a unique combination of legal, practical and political skills.
Our lawyers know how to coordinate local, national and international
strategies to solve problems that require action on several fronts

 	 	       When Russia's largest oil company, LUKOIL,
needed to privatize 11% of its shares, Akin Gump offered an
international team of attorneys from Moscow, Brussels, New York,
Washington and Houston. As a result, the largest convertible bond
offering in Russia to date was completed-a transaction that raised
$460 million. Akin Gump also advised LUKOIL through negotiations with
Atlantic Richfield Company (ARCO) that resulted in a $5 billion joint
venture and formation of LUKARCO.

        More recently, 11 multinational oil companies and three
governments signed agreements to restructure the Caspian Pipeline
Consortium to build a pipeline through Russia to the Black Sea. The
consortium had been unable to secure financing under a previous
arrangement. Akin Gump played a central role in successfully
restructuring the consortium to finance the $2.2 billion pipeline
project. This infrastructure project is the largest privately funded
infrastructure project in Russia's history.

Litigation as a strategy or necessity.

We are used to the bright lights and high pressure that comes when a
case is hyped by the media.

Over the years, we've handled a number of cases that have captured
national attention. As a result, we know how to guide events in the
press as well as in the courtroom.

One in every four Akin Gump lawyers is a litigator. Each of our
offices provides full-service litigation capabilities. We are
frequently in federal and state courts and counsel clients involved
in major commercial disputes, in sensitive confidential inquiries and
investigations, or when regulation and enforcement policies change.

 	 	       Akin Gump served as lead counsel to Volkswagen
in its well-publicized trade secret dispute with General Motors. Akin
Gump attorneys assisted the client in obtaining a unique settlement
to bring the long-running controversy to an end. Under the agreement,
VW paid GM a small fraction of the potential damages, and resolved
all civil litigation in the United States and Germany.

      We successfully defended Archer Daniels Midland Company in one
of the longest-running Clayton Act Section 7 cases brought by the
Department of Justice Antitrust Division. The government attacked
ADM's long term lease of two corn wet milling plants as an
anticompetitive acquisition in the nationwide high fructose corn
syrup market. After a two-month trial in federal court, one of the
longest merger trials in the past 15 years, the court ruled in favor
of our client. The government did not appeal.

We operate as 1 firm.

Akin Gump clients have access to our firm's lawyers in any one of our
11 offices.

We assemble teams to resolve complex matters that cross national
borders.

 	 	       More than 75 Akin Gump lawyers coordinated to
make three of the largest SEC filings ever for New York Life
Insurance. Lawyers from Dallas, Houston, San Antonio, New York,
Philadelphia and Washington handled securities filings and
litigation, and helped the company exit from limited partnerships.

       A refinery privatization in North Africa involved our London
and Brussels offices, while a major Korean electronics firm relies on
Akin Gump lawyers from Washington and Los Angeles to handle
litigation and corporate matters. Akin Gump lawyers from Moscow, New
York, Washington and Houston completed one of the biggest investment
deals in Russian history.

Seeing the world as one market.

Today, business opportunities have an international overlay.
Action in one country won't suffice – you need to work in countries
on all sides of a transaction at the same time.

Akin Gump lawyers have the cultural understanding, language
capabilities and business experience needed to penetrate new markets.

       Akin Gump clients are active throughout the world: improving
mineral extraction methods in the CIS and China, developing port
facilities in Central America, building a global satellite network
and investing in virtually every emerging market.

 	 	       Korea's largest industrial conglomerate, the
Samsung Group, requires skilled legal counsel on issues that affect
its worldwide enterprises. Akin Gump's lawyers resolved antidumping
proceedings before the Department of Commerce, the International
Trade Commission and the World Trade Organization that saved Samsung
considerable money. EC trade disputes, domestic and international tax
matters, patent litigation, employment issues and international
commerce questions are just some of the issues our attorneys monitor
for Samsung.

NY TIMES: Espionage by Akin Gump in Food Lion case

"Private Sleuths Find High Tech Facts On-Line"

New York Times, September 15, 1997

Full text at:

http://www.mapinc.org/drugnews/v97/n406/a01.html

Key excerpt:

By NINA BERNSTEIN

…Food Lion Corp., for example, this year won damages for trespass
after ABC News reporters secured jobs at its stores to film a report
about sales of spoiled meat.  But unpublicized is the fact that the
food company itself, through private investigators working for its
law firm Akin, Gump, Strauss, Hauer & Feld secretly acquired the
private telephone records and credit information of former employees
and potential witnesses, court records show.