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Leonard, Street and Deinard

Utility, Energy and Regulatory Law ALERT
With Chairman Joseph Kelliher stating that the Federal Energy Regulatory Commission (FERC) is "now an enforcement agency capable of effective oversight," on January 18, 2006, FERC imposed penalties totaling $22.5 million on five companies.

This is the first time FERC has exercised the civil penalty authority given to it by Congress in 2005 and represents the largest civil penalties ever imposed by FERC. Four of the five cases involved the utilities' self-reporting their violations of tariffs, rules and standards of conduct, while the fifth involved violations of the company's tariff and the Commission's Business Practices Standards that were uncovered in a FERC-initiated investigation. While the penalties imposed are significant (including $9 million and $10 million penalties), they pale in comparison to the maximum penalties that FERC could have sought. In imposing the penalties and settling these matters, FERC made it clear that when determining the level of civil penalties it will impose, it will reduce penalty amounts where a company has a "culture of compliance," self-reports violations and cooperates in investigations.

FERC's Penalty Authority. In the Energy Policy Act of 2005, Congress granted FERC enhanced authority to assess civil penalties for violations of the Federal Power Act, Natural Gas Act and Natural Gas Policy Act, raising the maximum civil penalty that FERC may assess from $10,000 to $1 million per violation for each day that such violation occurs. Similarly, Congress expanded the scope of the criminal provisions (enforced by the Department of Justice) of the Federal Power Act, Natural Gas Act, and Natural Gas Policy Act by increasing maximum fines and maximum imprisonment time.

The Importance of Self-Reporting, Cooperation and Compliance. In its January 18 Orders approving settlements of enforcement investigations, FERC remained true to its commitments to consider a company's remedial behavior in determining the appropriate remedy for a violation. For example, with respect to one of the five investigated entities, FERC recognized that 329 identified violations occurred after the enactment of the Energy Policy Act of 2005 each of which could be subject to a penalty up to $1 million (for a total of $329 million!). However, FERC in that case accorded "great weight" to the company's self-reporting of the violations and "exemplary cooperation" and approved a $10 million civil penalty. Similarly, with respect to the other four penalty cases, FERC recognized such cooperation and self-reporting as well as proactive measures taken by the company such as the voluntary disgorgement of profits and the implementation of a compliance program. In this regard, Chairman Kelliher pointed out that "regulated companies receive credit for self-reporting violations," but warned that "the credit for self-reporting will diminish if a regulated company does not make a strong commitment to develop a compliance culture.

01-22-2007

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Kaye Scholer LLP

Smart, De Sevo and Tepper Author Article on the Importance of Venue in Trademark and Dilution Actions
Thomas A. Smart, partner, Richard A. De Sevo, of counsel, and Michelle R. Tepper, associate, all of the firm's Trademark, Copyright and False Advertising Group, published the article titled "The Advantage of Venue in Trademark and Dilution Action." The article was published in the January 22, 2007 issue of New York Law Journal in a special Intellectual Property section. The article discusses how procedural and substantive law differences in the circuit courts must be fully evaluated in order to choose the best venue for trademark and dilution actions.

01-22-2007

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Jenner & Block LLP

Sullivan Argues for the Protection of Homeowners’ Due Process Rights Before Illinois Supreme Court
In a case argued orally before the Illinois Supreme Court last week, Jenner & Block Partner Barry Sullivan advocated for the protection of a mentally ill homeowner’s due process rights against a judicial order that permitted title to her home to be transferred to a “tax scavenger,” notwithstanding the scavenger’s failure to provide the homeowner with actual notice of the hearing at which the transfer was ordered. The transfer caused the homeowner to lose her home for failing to pay $110.65 in taxes.

Mr. Sullivan argued that the scavenger who took possession of client Mary Lowe’s home through judicial action while she was mentally ill and hospitalized failed to provide Ms. Lowe with constitutionally adequate notice of the tax hearing.

After failing to personally notify Ms. Lowe that she was in danger of losing her home for failing to pay $110.65 in property taxes, Apex Tax Investments, Inc. sent a notice by certified mail to Ms. Lowe’s home. When Apex received the notice back as “undelivered” with a notation stating that “person is hospitalized” and reflecting the route carrier’s initials and route number, Apex took no further action to locate Ms. Lowe. Instead, the tax purchaser proceeded to ask the court to transfer title to the sick woman’s home, which the court did based on the scavenger’s payment of $347.61.

The Due Process Clause of the U.S. constitution required that the scavenger undertake a “diligent inquiry” to locate Ms. Lowe and serve her with notice of the proceeding, Mr. Sullivan argued. Earlier this year, the U.S. Supreme Court granted Jenner & Block’s petition for a writ of certiorari and summarily vacated and remanded a previous Illinois Supreme Court decision that upheld the constitutionality of Apex’s attempt to notify Ms. Lowe. Specifically, the U.S. Supreme Court ordered the Illinois Court to reconsider the matter in light of the U.S. Supreme Court's April decision in Jones v. Flowers, which held that further inquiry is constitutionally required when a notice is returned unclaimed.

According to the Firm’s brief, the Supreme Court emphasized in Jones that the means used to give notice must be such that “one desirous of actually informing the absentee might reasonably adopt.”

Before a panel of Illinois Supreme Court Justices, Mr. Sullivan argued that Apex’s efforts to provide notice to Ms. Lowe “fell far short of the constitutional due diligence requirements stated in Jones.” He urged that for “the constitutional adequacy of notice [to] be measured in a realistic way,” the reasonableness of further available steps should be assessed “from the perspective of one interested in collecting a debt,” rather than one with hopes of reaping a substantial windfall by not finding the missing person.

Under this standard, the Firm argued that Apex failed to take “actions calculated to lead to the discovery of Ms. Lowe’s whereabouts,” as Jones requires.

Among other things, Mr. Sullivan also countered the scavenger’s arguments that Jones applies only to government officials. The Firm’s brief notes that Illinois precedent has recognized scavengers as state actors to whom the requirements of the Due Process Clause necessarily applies, and adds, “If anything, given the scavenger’s obvious self-interest, the scavenger should be subject to more exacting standards than public employees.”

While Ms. Lowe is now deceased, the outcome of this case could help protect elderly individuals in Illinois from losing their homes due to unknown debts. According to Charles Golbert, Deputy Cook County Public Guardian, whose office is co-counsel in this case, the situation in Lowe occurs “quite frequently.”

Mr. Golbert stated that over half of the individuals under the ward of the Public Guardian are elders who are isolated from the community and suffering from Alzheimer’s and age-related dementia. “These individuals pay all of their mortgage and tax payments for thirty years, and then end up losing their homes - which are often their only assets - to tax scavengers for next to nothing,” he said.

The Jenner & Block team on the case is being led by Mr. Sullivan and includes Chairman Jerold S. Solovy and Associates Denise Kirkowski Bowler and Benjamin M. Vetter. Co-counsel on the matter are Cook County Public Guardian Robert F. Harris, Mr. Golbert, and Kass Plain.

The Firm’s arguments were supported by an amicus brief submitted by the University of Chicago’s Edwin F. Mandel Legal Aid Clinic and the Mental Health Association of Greater Chicago.

01-22-2007

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Howrey, LLP

Howrey Expands London Office
According to Managing Intellectual Property, “US firm Howrey has hired the former head of Linklaters’ IP practice, Jeremy Brown, as a partner in its London office…. His appointment comes in the same month that Howrey opened an office in Munich, headed by former Clifford Chance partner Joachim Feldges, and six months after the firm raided NautaDutilh to hire a trio of senior lawyers to boost its Brussels IP practice.

01-22-2007

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Howrey, LLP

Howrey Promotes Two to Partner
Connie Ramos and Mike Resch joined the San Franciso and Los Angeles offices, respectively,” according to Los Angeles/San Francisco Daily Journal.

01-22-2007

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Dykema Gossett PLLC

Lisa Mueller Joins Dykema
Dykema announces that Lisa V. Mueller has joined the firm as Of Counsel in the firm’s Intellectual Property practice group. Ms. Mueller’s practice focuses on intellectual property law, including drafting and prosecuting patent applications in the biotechnology, chemical, pharmaceutical and agricultural fields. She has prosecuted patent applications in the United States and abroad in the areas of genomics, proteomics, immunology, diagnostic assays, pharmaceutical compositions and formulations, agricultural products, polymer science, and nutritional products.

Ms. Mueller is experienced in preparing and prosecuting trademarks, plant and design patents. She also has experience in licensing and preparing patentability, infringement and freedom to operate opinions. She has spent extended periods of time on site in IP departments within large pharmaceutical companies assisting with patent matters, including preparing and prosecuting patent applications in the United States and assisting foreign associates in the prosecution of patent applications throughout the world.

A resident of Buffalo Grove, Illinois, Ms. Mueller received her B.S. and J.D., magna cum laude, from Valparaiso University.

01-22-2007

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Bracewell & Giuliani LLP

Jonathan Halpern Joins Bracewell & Giuliani as Partner in New York
Jonathan N. Halpern, who led the Major Crimes Unit in the United States Attorney’s Office for the Southern District of New York as an Assistant U.S. Attorney, has joined Bracewell & Giuliani LLP as a partner in the firm’s New York office. Mr. Halpern will focus on white-collar criminal defense, corporate internal investigations, trials, appeals and complex commercial litigation, and he reunites with former colleague Marc Mukasey, who joined Bracewell as a partner in 2006 after eight years as an Assistant U.S. Attorney in the SDNY.

Mr. Halpern, most recently a partner at Winston & Strawn, represents individuals and companies in investigations and prosecutions by the Department of Justice, various U.S. Attorney's Offices, the Securities and Exchange Commission, and other law enforcement and regulatory agencies.

As Chief of the SDNY’s Major Crimes Unit, Mr. Halpern supervised 25 attorneys responsible for investigating and prosecuting large-scale and complex white-collar criminal matters. During his 15-year tenure as a prosecutor, he tried a wide variety of federal criminal cases in matters involving corruption, extortion and tax, financial institution and health care fraud. He has handled all phases of grand jury, trial and appellate work, and served as lead prosecutor in numerous high-profile cases.

Mr. Halpern is a recipient of the Department of Justice Director’s Award for Superior Performance.

He received an A.B. in Government, cum laude, from Cornell University in 1980, and a J.D. from Boston University School of Law in 1984, where he was editor-in-chief of the Boston University International Law Journal. He is a frequent speaker on matters involving criminal and civil litigation, has provided legal analysis on television news programs, and his legal commentary has appeared in The New York Times, The Wall Street Journal and The San Francisco Chronicle, among other publications.

01-22-2007

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