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Davis Polk & Wardwell

Caremark Shareholders Approve CVS Merger
Davis Polk & Wardwell is advising CVS Corporation on its merger with Caremark Rx, Inc. in a $27 billion transaction to form a new Fortune 20 company named CVS/Caremark Corporation. Caremark is one of the nation’s leading pharmaceutical services companies, providing comprehensive prescription benefit management services to over 2,000 health plans, including corporations, managed care organizations, insurance companies, unions and government entities. CVS is the nation’s largest retail pharmacy chain, with approximately 6,200 stores across 43 states. At closing, the combined company will have formed the nation's largest pharmacy services provider.

Shareholders in both CVS and Caremark have now approved the merger, successfully defeating a competing hostile offer by Express Scripts, Inc. The transaction is expected to be completed next week.

The Davis Polk corporate team includes partners Louis L. Goldberg and John D. Amorosi and associates Scott D. Mitnick, Jason Rubin Sussman and Joanna A. McGinley. Partner Michael Mollerus and associate Neil Weinberg are providing tax advice. Partner Edmond T. FitzGerald and associates Ada Dekhtyar Karczmer and Ann Becchina are providing employment advice. Counsel Loyti Cheng and associate Heather Daly are providing environmental advice. The litigation team includes partners Lawrence Portnoy and Thomas P. Ogden, associates Eric B. Halper, Michael L. Simes, Ciaran P.A. Connelly, Lindsay H. Tomenson, Una A. Dean, Chiawen Clement Kiew and Brooke A. Tucker and legal assistant Michael P. Thaler. Partner Karin S. Day and associate Vivian Yin Mei Wong are providing credit advice. Shelley Hoffman is the legal assistant on the transaction. All members of the Davis Polk team work in the New York office.

03-16-2007

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Manko, Gold, Katcher & Fox, L.L.P.

Manko, Gold, Katcher & Fox, LLP Nets $5.6 M Judgement for Chesco Site Redevelopers
Manko, Gold, Katcher & Fox, LLP (MGKF), an environmental and land use law firm, announced today that it secured a $5,631,075 partial judgment against Kemper Environmental, Ltd., Kemper Insurance Companies and Lumbermens Mutual Casualty Company (collectively “Kemper”) in favor of its client, Frazer Exton Development, L.P. (FED), the redeveloper of the 79-acre Foote Mineral Superfund Site (the “Site”) in Chester County, Pennsylvania.

The judgment arises from FED’s prior victory over Kemper at trial, which resulted in the first-ever federal decision regarding the scope of coverage provided by a “cost-cap” environmental insurance policy. In 2004, Judge Harold Baer, Jr., of the U.S. District Court for the Southern District of New York, held in Frazer Exton Development, L.P. v. Kemper Environmental, Ltd., 2004 WL 1752580 (S.D.N.Y. 2004) that the Kemper policy at issue “was set to cover any remediation the EPA would eventually mandate” and that the policy unambiguously covered FED’s investigation costs. Judge Baer’s decision was affirmed on appeal to the U.S. Court of Appeals for the Second Circuit. Frazer Exton Development, L.P. v. Kemper Environmental, Ltd., 153 Fed. Appx. 31 (2d Cir. 2005).

“Today, despite the EPA’s issuance of a remedy in the form of a Record of Decision [ROD] on March 31, 2006, Kemper has refused to pay any of Frazer’s costs,” wrote Judge Harold Baer, Jr. of the U. S. District Court for the Southern District of New York. “Kemper’s reasoning, essentially, is that the Second Circuit, when it affirmed this Court’s judgment, somehow limited this Court’s holding…. Kemper’s argument is wholly meritless. It is hornbook law that an affirmance by an appellate court ratifies, confirms and declares that the trial court judgment was correct, as if there had been no appeal.” Judge Baer continued: “[as] such, this Court’s declaratory judgment that Kemper’s environmental insurance company provides broad cost-cap coverage for ‘whatever remedy the EPA may issue [and] all pre-ROD investigation costs incurred after the October 31, 1998 inception of the Policy’… remains in effect with the full force of law.”

From 1942 to 1991, the Site produced lithium products for the United States Government, including the Department of Defense, which caused contamination of the Site. FED, a local real estate development partnership, acquired the Site in 1998 to remediate and redevelop it as a “brownfields” site. At the time it acquired the Site, FED purchased a “cost cap” environmental insurance policy from Kemper to ensure against cost-overruns during the investigation and cleanup of the Site. The Kemper policy had a deductible of $3.5 million and a limit of $16.5 million. The purchase of the cost-cap policy was essential to FED’s acquisition of the Site, as the U. S. Environmental Protection Agency (EPA) had yet to issue a ROD setting forth its required cleanup remedy for the site. Following issuance of the ROD, it is now estimated that the remedy will exceed the policy limits of $16.5 million. The Site is slated for redevelopment as a Continuing Care Retirement Community.

The $5.6 million partial judgment must be paid within 20 days. Judge Baer assigned a Magistrate Judge to prepare a report and make recommendations concerning the balance of FED’s current $11.3 million claim. It is anticipated that the total amount of the claim will soon reach the $16.5 million coverage limits of the policy, plus interest. FED had also asked that Kemper be held in contempt for not paying the claim consistent with the Court’s prior ruling. Judge Baer wrote the he “decline(s) to enter a contempt order at this time.”

MGKF partner and litigation chair Neil S. Witkes has represented FED throughout these proceedings with MGKF associate Michael C. Gross.

03-15-2007

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Hodgson Russ LLP

Hodgson Russ partner Pamela Davis Heilman elected to Shaw Festival board of governors
Pamela Davis Heilman, a partner in Hodgson Russ's Corporate & Securities and Nonprofit Law Practice Groups, has been elected to the board of governors of the Shaw Festival, one of the largest repertory companies in North America.

Ms. Heilman follows in a long tradition of Hodgson Russ partners who have served on the board of governors, which produces each season's plays. Most recently, Thomas Hyde served as board chair; preceding him were James Wadsworth, John Barber, and Jack Hahn.

The Shaw Festival is the only theater in the world that specializes in plays written by Bernard Shaw and his contemporaries (1856-1950). Shaw productions run from April to November of each year in Niagara-on-the-Lake, Ontario. As an art theater rather than a commercial theater, it is a nonprofit, charitable organization. More information can be found at www.shawfest.com.

Ms. Heilman practices out of the firm's Buffalo and Toronto offices. She is one of the lead lawyers in Hodgson Russ's cross-border Canada/U.S. practice and regularly counsels Canadian organizations and businesses considering expansion into the United States. She also has extensive experience counseling nonprofit organizations and closely held businesses. Ms. Heilman is a member of the board of directors and treasurer of the Canadian American Business Council.

03-15-2007

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Squire, Sanders & Dempsey, L.L.P.

TAKING FLIGHT; SQUIRE SANDERS COUNSELS IN HISTORIC AVIATION TRANSACTION IN CHINA
Lawyers throughout global law firm Squire, Sanders & Dempsey L.L.P. counseled Mesa Air Group, Inc. when the US-based regional airline joined with China-based carrier Shenzhen Co. to create China’s first commuter airline.

The new airline, expected to launch by late 2007, in time for the 2008 Olympics hosted by Beijing, with 20 50-seat regional jets, represents China’s first passenger airline joint venture.

“This historic transaction is an example of Arizona-based business’ increasing interest in doing business in China,” said Gregory R. Hall, a corporate lawyer who led the Squire Sanders team. Squire Sanders lawyers from the firm’s offices in Beijing, Phoenix and Washington DC collaborated to assist Mesa Air.

“China’s continuing deregulation of the aviation industry has created the fastest growing aviation market in the world as well as great opportunities for both non-China-based investors and Chinese business,” said Hall. “Aviation is just one sector of Arizona business with an eye on China.”

The volume of Arizona-made products exported to China is steadily increasing, according to statistics maintained by the US Census Bureau. According to the Bureau, the value of exports nearly doubled from 2002 to 2005, with US$649 million in exports sent in 2005, with particular growth in telecommunications, digital circuits and agriculture.

“It’s clear that Arizona companies want to do more business in China, and Squire Sanders is one of the few firms in this region that can provide on-the-ground legal counsel here and in China,” Hall said.

03-15-2007

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Carlton Fields

Carlton Fields Shareholder, Kevin J. Napper, Named a Fellow in the American Bar Foudnation
Carlton Fields is pleased to announce that Shareholder and White Collar Crime and Government Investigations Practice Group Leader, Kevin J. Napper, has been named a Fellow in the American Bar Foundation. The American Bar Foundation is the premiere research institute dedicated to the empirical study of law, legal institutions, and legal processes. The Fellows of the American Bar Foundation form a vital link between practitioners, judges, and scholars who conduct innovative socio-legal research.

Napper practices in the areas of white collar criminal defense, governmental investigations, internal investigations, corporate compliance under Sarbanes Oxley and general civil trial law. He has represented public companies and executives in Foreign Corrupt Practices Act (FCPA) investigations involving allegations of kickbacks and bribery to governmental officials in developing countries. He has conducted internal investigations for public and private companies involving allegations of financial mismanagement, theft, fraud and other violations of criminal law. Napper has worked extensively with forensic accountants and accounting Firms in internal and compliance audits and investigations. In addition he has represented executives of public companies in Grand Jury investigations conducted by the Department of Justice involving criminal antitrust issues, criminal environmental enforcement issues, defense contractor fraud and violations of Customs laws, the Food and Drug Act and the FTC. Napper also has represented physicians, nurses, other healthcare professionals and hospitals in medical negligence lawsuits, licensing and administrative actions. He has extensive experience representing physicians, hospital administrators and other healthcare professionals in governmental and grand jury investigations. He received his J.D. from the University of North Dakota School of Law in 1984 and his B.A., with honors, from Moorhead State University in 1981.

03-15-2007

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Tarlow, Breed, Hart & Rodgers, P.C.

Warren Kirshenbaum appointed to the Sharon Housing Partnership
Congratulations to Warren Kirshenbaum who was recently appointed to the Sharon Housing Partnership by the Board of Selectmen for the Town of Sharon. The Sharon Housing Partnership is dedicated to the production and preservation of affordable housing in Sharon. Warren will maintain this position until December 31, 2009.

03-15-2007

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Lewis Brisbois Bisgaard & Smith LLP

Daniel v. Safeway and G.A. Communications
Bill Steffin and Deborah Sirias were victorious in a case involving the misappropriation of Plaintiff’s image and likeness where Plaintiff claimed damages in excess of $10 million. On summary judgement, Judge Shook in Department 53 of the Los Angeles Superior Court ruled that there was no evidence that our client G.A. Communications ("GA"), the photographer, as distinguished from its customer Safeway, had "used" Plaintiff’s image as required by Civil Code Section 3344 and all of the other causes of action pled. As a result, GA is out of the case and a motion for attorneys’ fees is being prepared. Judge Shook also granted Safeway’s Motion for Summary Adjudication rejecting Plaintiff’s "false light" cause of action which was reluctantly brought by Safeway after Lewis Brisbois’ strong urging that fact issues were not present.

03-15-2007

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