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Law Firm News

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Morgan Lewis & Bockius LLP

Jury Returns Verdict for Vanguard in Retaliation Case Based Upon Absence of "Reasonable Good Faith Belief"
Mary Pat Russell, an IT Project Manager, challenged the decision of her former employer, The Vanguard Group, Inc., to terminate her employment for insubordination and poor job performance by filing a retaliation lawsuit in the U.S. District Court for the Eastern District of Pennsylvania. In 2003, Russell, who is African American, was considered for a promotion to System Manager. The position ultimately went to another employee, also African American, who became her manager. She was placed on an Oral Warning in May of 2003, a Written Alert in June of 2003, and a Formal Warning in July of 2003. Beginning in June of 2003, Russell complained to the CEO, the VP of HR, and the head of IT, among others, that her manager and his manager (who was white) had discriminated against her on the basis of her race, age, and gender. In her lawsuit filed in 2004, Russell alleged that her termination was motivated by retaliation for making these internal complaints and for filing two EEOC charges against prior managers.

On Friday, March 30, 2007, following a 7-day trial before Judge Louis H. Pollak, the 12-person jury returned a unanimous verdict in favor of Vanguard. The jury was required to answer up to three jury interrogatories, including whether Russell had a reasonable, good faith belief that her complaints related to unlawful discrimination. After deliberating for one hour, the jury came back with the following question: "Does the use of the word 'reasonable' in question number one mean: (a) do we believe that the plaintiff felt her opinions of discrimination were reasonable, or (b) do we believe that a reasonable person in the same circumstances would feel they were being discriminated against?" Judge Pollak instructed the jury that the answer was (b). Ten minutes later, the jury returned its verdict. The jury decided that Russell did not have a reasonable, good faith belief and did not reach the questions of causation and pretext.

The case was tried by Morgan Lewis attorneys Joe Costello and Tamsin Newman. They were supported by Catherine Cugell, Cailin Heilig, Mariann Cheung, and Toni Appel. Prior to trial, the case was also handled by former Morgan Lewis associate Pam Jenoff.

04-02-2007

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McDermott Will & Emery

Tribune ESOP Transaction Structured by McDermott Will & Emery
McDermott Will & Emery client Tribune Company (NYSE:TRB) has announced a transaction which will result in the company going private through a transaction involving an employee stock ownership plan (ESOP). Once the transaction is complete, the company will be privately held, with an ESOP holding all of Tribune’s then-outstanding common stock and Sam Zell holding a subordinated note and a warrant entitling him to acquire 40 percent of Tribune’s common stock.

McDermott assisted in structuring the transaction and advised the Tribune Company on all ESOP aspects of the transaction. McDermott's ESOP team was led by partners William ("Bill") Merten and Paul Compernolle, and included Susan Schaefer, Luis Granados, Joel Bernstein and Andrew Turney.

The Tribune Company is one of the country’s top media companies, operating businesses in publishing, interactive and broadcasting. It reaches more than 80 percent of U.S. households and is the only media organization with newspapers, television stations and websites in the nation’s top three markets. In publishing, Tribune’s leading daily newspapers include the Los Angeles Times, Chicago Tribune, Newsday, Baltimore Sun, South Florida Sun-Sentinel, Orlando Sentinel and Hartford Courant. The company’s broadcasting group operates 23 television stations, Superstation WGN on national cable, Chicago’s WGN-AM and the Chicago Cubs baseball team. For more information visit www.tribune.com.

McDermott Will & Emery lawyers in our ESOP Practice are some of the most experienced in the field and advise clients on all aspects of leveraged ESOP transactions (including their use in acquisitions, management buyouts, equity buyouts, going-private transactions and business succession). Our lawyers have obtained precedent-setting rulings and exemptions from both the Internal Revenue Service and the Department of Labor. We have been involved in landmark ESOP litigation matters and our attorneys have authored and edited leading ESOP books, articles and practitioner guides. We have also been involved in the legislative process, advising and guiding the discussion and creation of the laws governing ESOPs. One of our lawyers drafted most of the ESOP provisions in the original ERISA legislation. Another was the principal lobbyist as to far-reaching changes enacted in the Tax Reform Act of 1984.

04-02-2007

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Lewis and Roca LLP

Tobin and Goldsmith to be Honored as Two of Top 50 Pro Bono Attorneys in Arizona
Ric Tobin and Richard Goldsmith will be honored as two of the Top 50 Pro Bono Attorneys in Arizona for their commitment to pro bono service by the Arizona Foundation for Legal Services & Education on June 28, 2007.

Tobin, Of Counsel with Lewis and Roca’s Environmental and Natural Resources group, has provided over 400 hours of legal services representing abused, abandoned and neglected refugee and immigrant children. He is a co-chair of the Arizona-Mexico Commission Environment Committee and a volunteer at the Crossroads Legal Clinic. Tobin received his L.L.M. from George Washington University Law School (1993), his J.D. from the University of Florida School of Law (1984), and his B.S. from the United States Air Force Academy (1976).

Goldsmith, a partner with Lewis and Roca’s Business Section, has provided over 250 hours of legal services assisting with the Volunteer Lawyers’ Program, whose focus is matching legal personnel with low-income Arizonans in hopes to provide legal services to those who would not normally be able to afford. He is an active member of the American Arbitration Association, serving on the Arizona Panel of Commercial Business Mediators and the Large, Complex Case Arbitration panel and is currently a member of the Board of Trustees at the Phoenix Art Museum. Goldsmith received his J.D. from the University of Arizona, James E. Rogers College of Law (1973), his M.A. from the University of Chicago (1969), and his B.A. from Lawrence College (1964).

04-02-2007

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Lewis and Roca LLP

Gilson Named to Leadership Position in the American Bar Association's Section of Litigation
Lewis and Roca is pleased to announce that Thomas Gilson has been selected as a Co-Chair of the Criminal Litigation Committee of the American Bar Association’s Section of Litigation. In this nationally prominent position, Mr. Gilson will assume a leadership role in the ABA’s Section of Litigation.

Mr. Gilson has been active in the Criminal Litigation Committee since 2004. He has served as the Editor-in-Chief of the Committee’s Criminal Litigation Newsletter since 2005, and has written articles for the Newsletter and the Section of Litigation’s web site.

Mr. Gilson is Of Counsel in the firm’s Commercial Litigation Practice Group as well as its Criminal Defense, Government Regulation and Corporate Compliance Practice Group. He has represented clients in large-scale bankruptcy, securities and class action litigation. He also has substantial experience representing corporate clients in grand jury and government agency investigations. Prior to joining Lewis and Roca, Mr. Gilson was with Skadden, Arps, Slate, Meagher & Flom LLP in Washington, D.C.

Mr. Gilson received his J.D. from Northwestern University School of Law (1993), his M.M. from the Juilliard School in Piano Performance (1987), and his B.A. from Harvard College (1985, cum laude).

The ABA is the largest voluntary professional association in the world. With more than 400,000 members, it provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public. The Section of Litigation is the ABA’s largest specialty section, with approximately 57,000 members.

04-02-2007

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Kaye Scholer LLP

Kaye Scholer's Patent Litigation Group Ranked #1 by The Legal 500
Kaye Scholer's Patent Litigation group and five partners were recognized in the 2007 edition of The Legal 500. The publication named Kaye Scholer as a top firm in Patent Litigation for life sciences. The five partners mentioned in the Litigation Department are Gerald Sobel, Alan Fisch, Milton Sherman, Richard Greco and Leora Ben-Ami. The publication cited Kaye Scholer as the "go-to law firm for pharmaceutical and other life sciences manufacturers.

04-02-2007

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Kaye Scholer LLP

Kaye Scholer Closes $315 Million Private Equity Placement
Kaye Scholer represented CDP Infrastructures Fund, G.P., a subsidiary of Caisse de dépôt et placement du Québec, which has approximately $185 billion of funds under management, and Tortoise Energy Infrastructure Corporation and Tortoise Energy Capital Corporation, investment companies managed by Tortoise Capital Advisors, L.L.C., in a $315 million private placement of Class C Units in Enbridge Energy Partners, L.P. Enbridge Partners is a Texas-based natural gas gathering, processing and transmission company and owner of the U.S. portion of the world's longest liquid petroleum pipeline. The Kaye Scholer team, which included partners Roger W. Rosendahl and Kenneth G. M. Mason, and associate David Anthony Tice, all of the Corporate & Finance Department, closed the placement on April 2, 2007.

04-02-2007

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Jorden Burt LLP

COURT STRIKES DOWN RULE 202(a)(11)-1 UNDER THE ADVISERS ACT
The U.S. Court of Appeals for the D.C. Circuit ruled in favor of the Financial Planning Association, striking down the highly contentious Rule 202(a)(11)-1 under the Investment Advisers Act of 1940. The court’s action may require many brokerdealer firms – including those distributing insurance products – to re-evaluate key practices.

The Rule prescribed certain terms and conditions governing availability of the Advisers Act exclusion of certain broker-dealer activities from regulation under the Advisers Act (the “Broker-Dealer Exclusion”). The court held that the SEC overstepped the bounds of its authority, where Congress had already legislated on the area. The Rule prescribed several terms and conditions, but the court vacated the entire Rule, effective immediately.

Significant issues may be raised for firms that have been relying on the Broker-Dealer Exclusion. For example, the Rule had resolved difficult interpretive questions about whether the Broker-Dealer Exclusion was unavailable where a broker-dealer receives asset-based compensation (rather than transaction-based compensation) from a brokerage customer or discounts its brokerage commission rates to customers to whom the broker-dealer does not provide investment advice. The Rule permitted these types of compensation structures (subject to certain conditions); but now, firms relying on this aspect of the Rule will again be faced with the question of deciding, as an interpretive matter, whether their practices fall within the Broker-Dealer Exclusion.

The Rule also had addressed long-standing questions about the extent to which the Broker-Dealer Exclusion is available where the broker-dealer engages in “financial planning” activities. This question is important to broker-dealers and their registered representatives who offer financial plans or similar needs analyses that identify long-term economic goals and prepare comprehensive financial programs to achieve those goals.

In essence, the question is whether, in providing financial planning-type services, registered representatives are providing advice that is “solely incidental” to their conduct in selling securities products. If not, the Broker-Dealer Exclusion is unavailable. The Rule specifically provided that financial planning is not solely incidental.

Since adoption of the Rule, the SEC has been in the position of defending the Rule and the broker-dealer industry has been adjusting business practices in order to comply. In particular, broker-dealers have found it necessary to analyze whether different types of needs-based selling practices, including examining a customer’s long-term financial needs, are in fact financial planning subject to regulation under the Advisers Act. It is as yet unclear how the court’s action in striking down the Rule will affect this analysis.

Stay tuned for further word from the SEC. The SEC could ask the entire D.C. Circuit to rehear the case, or ask the Supreme Court to hear the case and request the D.C. Circuit to stay its order. Or the SEC may issue other guidance.

04-02-2007

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