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Mason, Hayes & Curran

Data Protection Commissioner Warns Mortgage Intermediaries
The Data Protection Commissioner announced on 21 December 2006 that he was issuing a guidance note to mortgage intermediaries nationwide.
This announcement followed investigations launched subsequent to RTÉ’s Prime Time programme of 12 December which made allegations that mortgage intermediaries were breaching the Irish Data Protection Acts 1988 and 2003. Prime Time’s undercover reporter had claimed that some brokers disclosed details of their clients’ financial information, including mortgage limits, to estate agents offering to sell property to those clients. Allegedly, the agents then used the knowledge of the potential buyer’s mortgage limits to raise the offer price of the property.

In his guidance note, the Commissioner noted that the Prime Time programme and the Office of the Data Protection Commissioner’s investigations had “highlighted a sectoral lack of awareness amongst mortgage brokers in relation to the full extent of their responsibilities under the Acts.” The guidance note re-iterates the eight fundamental rules of data protection, stressing that the principle that use and disclosure of data should only be made in ways compatible with the specified, explicit and lawful purposes for which they are obtained is of “great significance” in relation to mortgage intermediaries.

The Commissioner further emphasised that where financial information was given by an individual to a mortgage intermediary for the sole purpose of obtaining a mortgage, the obligation fell on the intermediary to ensure such information remained confidential.

The Commissioner advised that, in the future, mortgage brokers should take “a transparent and balanced approach in collecting and using personal data”. Significantly, the guidance note stresses that there should be a clearly assigned data protection compliance function within mortgage brokerage firms and clearly defined rules about the use of personal data. The Commissioner also advised the Financial Regulator of the content of the guidance note.

The Commissioner warned that the programme of random inspections of mortgage brokers would continue.

01-30-2007

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King & Spalding

King & Spalding's Ralph Levy Receives the Georgia State Bar's Commitment to Equality Award
King & Spalding partner Ralph Levy received the State Bar of Georgia Women and Minorities in the Profession Committee's 2007 Commitment to Equality Award at a ceremony January 23 at the State Bar of Georgia Building in Atlanta.

The Commitment to Equality Award is presented annually to individuals in the State of Georgia that have shown and continue to show a strong commitment to promoting diversity in the legal profession. The award recognizes the efforts of lawyers and legal employers who are committed to providing opportunities that foster a more diverse legal profession for women and lawyers of color.

Ralph Levy is a senior partner in the firm's Business Litigation Practice Group. He joined the firm as an associate in 1974, was admitted to the partnership in 1979, and served as the firm's Managing Partner from 1993 to 1999. Levy has expended considerable effort to promote diversity in the legal profession, spearheading the establishment of King & Spalding's own diversity committee and serving as its first Chairman. He was the driving force behind the creation of the Atlanta Large Law Firm Diversity Alliance, soliciting startup funding and serving as steering committee chairman. Levy is also a charter member of the Atlanta Legal Diversity Consortium, Inc.

01-30-2007

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King & Spalding

King & Spalding Earns Significant Victory for GlaxoSmithKline In Denial of Certification of Proposed Nationwide Class Action
King & Spalding, a leading international law firm, announced today that it has earned a significant victory for its client GlaxoSmithKline, by earning the denial of certification of a proposed nationwide class action brought on behalf of pediatric users of the prescription anti-depressant Paxil(r) (Pamela Blain, et al. v. SmithKline Beecham Corp.). The plaintiffs alleged Paxil caused pediatric patients to either commit suicide or engage in self-injurious behavior.

Federal Judge Timothy Savage of the Eastern District of Pennsylvania denied certification on January 25 on the grounds that, given the overwhelming predominance of individual issues, the plaintiffs were not adequate or typical representatives of the class, and could not satisfy the predominance and superiority requirements of Rule 23(b)(3). The court also found that the plaintiffs "failed to define a class capable of ascertaining membership without individualized fact finding."

In denying class certification, the court addressed and rejected two arguments advanced by the plaintiffs that were designed to sidestep the many problems created by the individualized nature of their claims.

First, the plaintiffs sought only to certify discrete "common" issues under Rule 23(c)(4), leaving the remaining individual issues to be decided in separate trials. According to their theory, such "issue" certification obviates the need to satisfy the predominance requirement of Rule 23(b)(3) (and individual issues can be ignored) because only the "common" issues will be certified. In rejecting this argument, the court explained that "[t]he better view is that issue certification under 23(c)(4) does not obviate the need to evaluate predominance." "Using subsection 23(c)(4) to certify a putative class that is otherwise improper for certification would bypass the 23(b)(3) predominance requirement." The court's opinion adds to the line of cases that have rejected this reading of Rule 23(c)(4).

Second, the plaintiffs attempted to evade the many choice of law problems implicated by their proposed nationwide class by urging the court to invoke "depecage," a choice of law doctrine that, under certain circumstances, permits application of the law of different states to different issues in the same case. Specifically, the plaintiffs argued that under this doctrine the court could apply Pennsylvania law to the so-called "common issues" and the law of the putative class member's home state to the individual issues. In rejecting this argument, the court noted that it would require splitting up elements (and sub-elements) of a single claim. The court concluded that liability cannot be determined in this "piecemeal" manner. Instead, it must be decided "by taking into consideration all parts of the question, including defenses."

This ruling is the latest in an increasingly unbroken line of federal cases that have declined to certify class actions in product liability cases involving prescription drugs and medical devices.

The King & Spalding team that successfully represented GlaxoSmithKline in this case was led by partner Chilton D. Varner and included partners Todd P. Davis and Stephen B. Devereaux.

King & Spalding has teams of class action lawyers in Atlanta, Houston, New York and Washington D.C., and has successfully handled literally hundreds of high-stakes class actions in both federal and state courts throughout the United States.

01-30-2007

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Holland & Hart, L.L.P.

Holland & Hart Welcomes Three New Attorneys To Salt Lake City Office
Holland & Hart is pleased to announce that Chris Jones, Michael Thatcher and Joel Wright have joined the firm's Salt Lake City office.

Mr. Jones is a partner in the firm's Natural Resources Department. His practice concentrates on oil and gas, mining, banking and commercial finance, real estate, and other real property focused transactions. Mr. Jones has represented oil, gas, and mining clients with respect to various transactional matters, title opinions, administrative proceedings, finance transactions and matters involving Indian Tribes and Tribal Lands. He received his J.D. (1998) from the University of Utah College of Law and his B.A. (1995) magna cum laude from the University of Utah.

Mr. Thatcher is as a member of the Natural Resources Department, concentrating on oil and gas, mining, public lands, and Native American natural resources law. While in law school, Mr. Thatcher interned with the Tort/Litigation Division of the Wyoming Attorney General, where he defended the State of Wyoming in an appeal before the Wyoming Supreme Court. He received his J.D. (2006) from the University of Wyoming College of Law, his M.A. (2003) from Texas A&M University, and his B.A. (1998) from the University of Utah.

Mr. Wright is a member of the firm's Real Estate practice group. He represents private companies, lenders, and governments in connection with virtually every phase of the development, financing, and acquisition of real estate, energy, and infrastructure projects. Mr. Wright was also recently appointed to the Utah State Charter School Board by Governor Huntsman. Prior to joining Holland & Hart, Mr. Wright was the General Counsel of DynamicCity, Inc., which manages the nation’s largest community broadband project, UTOPIA, covering 14 cities in Utah. He received his J.D. (1999) from New York University School of Law and his B.A. (1996) from Brigham Young University.

01-30-2007

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Holland & Hart, L.L.P.

Holland & Hart Welcomes Tarek Saad To Denver Office
Holland & Hart welcomes Tarek Saad as a partner in the firm's Denver office.

Mr. Saad joined the firm's Business Litigation practice group in October 2006. He has substantial experience in a wide variety of litigation matters and frequently counsels and litigates on behalf of clients in a variety of commercial contexts, including intellectual property, employment issues, business torts and liabilities, consumer protection statues, and contract disputes.

Before joining Holland & Hart, Mr. Saad was a partner with Morrison & Foerster LLP in Denver and an associate with Hughes & Luce LLP in Dallas, Texas. He received his J.D. from the University of Texas School of Law and his B.A. from the University of Michigan.

01-30-2007

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Gray, Plant & Mooty

Radisson Hotels International, Inc. Obtains Summary Judgment in Excess of $1 Million and Calls Into Question Continued Impact of Postal Instant Press v. Sealy
In Radisson Hotels International, Inc. v. Majestic Towers, Inc., et al., Case No. CV 06-4956 SVW (RCx), the U.S. District Court for the Central District of California granted Radisson Hotels International, Inc. summary judgment in the amount of $1,006,714.55 for past fees and liquidated damages. In doing so, the court held that Radisson’s contractual liquidated damages clause was reasonable and enforceable. The Court also determined that California's leading case on a franchisor's ability to collect future profits in the context of a termination, Postal Instant Press, Inc. v. Sealy, 43 Cal. App. 4th 1704 (1996), was inapplicable to the facts of the case and decided in error.


In an Order dated January 25, 2007, U.S. District Judge Judge Stephen V. Wilson granted Radisson's motion for summary judgment after finding that its Los Angeles based franchisee breached its License Agreement, causing Radisson to terminate the contract. The Court found that Radisson was entitled to $338,552.64 for past due fees and $668,181.91 in liquidated damages. The court determined that the franchisee had not met its burden of proving that the liquidated damages clause -- which provided for the payment of two years of royalties in the event of termination due to a default by the franchisee -- was unreasonable.



The franchisee urged the Court to follow the holding in the 1996 California Court of Appeals decision in Postal Instant Press v. Sealy -- that if a franchisor terminates the license agreement for non-payment by the franchisee, it cannot recover royalties following the date of termination – even when the license agreement included a liquidated damages provision. The court found Sealy to be inapplicable to the facts of the case and suggested, in the alternative, that the Sealy case was decided in error.


Radisson's lead counsel, Kirk Reilly of the Minneapolis office of Gray Plant Mooty, notes that "[t]he merits and continued legacy of the Sealy decision have been hotly debated by the franchise legal community for years, and its effect on cases involving liquidated damage clauses has been uncertain. This decision clearly holds that the use of a well-drafted liquidated damages clause will allow franchisors to collect future lost royalties as damages -- even in cases where the franchisee's failure to pay required fees is the basis for the franchisor's termination of the license agreement. This well-reasoned decision calls into question Sealy’s continued viability in California and across the nation. This is a great decision for franchisors everywhere.

01-30-2007

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Frost, Brown & Todd, L.L.C.

Frost Brown Todd Attorney Meets with Albright
Frost Brown Todd attorney Joseph Dehner, in his capacity as Chairman of the Foreign Policy Leadership Council of Greater Cincinnati, hosted an evening with former United States Secretary of the State Madeleine Albright on January 30, 2007.

From Left to Right: Hamilton County Commissioner, David Pepper, Secretary Albright, Joseph Dehner and his wife, Noel Julnes-Dehner.

01-30-2007

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