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Briggs and Morgan, Professional Association

Briggs Attorney is One of Eight Minnesota Uniform Law Commissioners to Draft New Laws
Briggs and Morgan Attorney Harry J. Haynsworth IV is one of 250 lawyers from across the United States and beyond who participated at the 2006 Annual Meeting of the National Conference of Commissioners on Uniform State Laws (NCCUSL), hosted in July 2006.

It is a privilege to be involved in drafting statutes that are comprehensive, well written and cover subjects that need to be addressed by state legislature,” Haynsworth says. “This conference reflects a culmination of several years of work dedicated to each act, yet it is the necessary step before approaching states like Minnesota for adoption.”

A revision to the existing Uniform Anatomical Gift Act (UAGA) regarding organ donations was among eight acts approved at this year’s conference. According to Haynsworth, UAGA¯an update in light of recent changes in federal law and regulations that expands on the number of individuals authorized to make anatomical gifts¯has the greatest chance for consideration in upcoming legislation. Several additional uniform acts, promulgated in prior years, will also be introduced during the 2007 Minnesota legislative session.

Haynsworth has been a uniform law commissioner for more than 14 years. He was appointed in Minnesota in 1995 and is currently one of eight commissioners in the state. Serving in this pro bono public service capacity, Haynsworth donates approximately a month’s worth of time to the effort per year.

Haynsworth’s professional background has encompassed commercial and corporate law, closely held businesses, and legal ethics and professionalism issues. He has served in a number of capacities for various law schools, most recently as president and dean of William Mitchell College of Law. He is a member of Briggs’ business law section, as well as the firm’s governance and compliance practice group.

The NCCUSL, in its 115th year, is designed for the purpose of drafting and promoting the enactment of uniform laws common to all states. The 2006 conference also resulted in the approval of: the Uniform Power of Attorney Act, Uniform Volunteer Health Care PractitionersAct, Uniform Limited Liability Company Act, Uniform Prudent Management of Institutional Fund Act, Uniform Representation of Children in Abuse, Uniform Child Abduction Prevention Act, Neglect and Custody Proceedings Act, and the Model Registered Agents Act.

NCCUSL comprises more than 300 commissioners (attorneys, judges, law professors, legislators and state officials) appointed by every state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands. Since its inception in 1892, the organization has promulgated more than 200 acts (of which Minnesota enacted 120), among them are the Uniform Commercial Code, Uniform Probate Code, Uniform Partnership Act, Uniform Securities Act, Uniform Child Custody Jurisdiction and Enforcement Act, and the Uniform Interstate Family Support Act. For more information, visit www.nccusl.org.

Briggs and Morgan, Professional Association, established in 1882, is a trusted name in legal services with a long-standing tradition in providing business and trial law counsel to clients nationwide. As a founding member of Lex Mundi, the world’s leading association of independent law firms, Briggs and Morgan is the exclusive member firm for Minnesota with offices in Minneapolis and St. Paul. The firm has more than 150 attorneys committed to partnerships centered around leadership, diversity and economic success. For more information, visit www.briggs.com.

08-09-2006

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LeClairRyan

LeClair Ryan Part of Winning Team in Bench Trial on Infringement, Validity and Enforceability of Altace® Patent
On July 17, 2006, Judge Robert G. Doumar of Norfolk Division of the U.S. District Court for the Eastern District of Virginia, held that United States Patent No. 5,061,722 (""the '722 patent""), is valid. The '722 patent covers ramipril (substantially free of other isomers), which is sold in the United States under the brand name Altace®. Altace® had worldwide sales in 2005 exceeding $800 million. The case was begun when generic drug manufacturers, Lupin Ltd. and Lupin Pharmaceuticals, Inc. (""Lupin""), filed an Abbreviated New Drug Application seeking FDA approval to sell a generic copy of Altace® before the expiration of the '722 patent. Before the trial began, the District Court granted summary judgment finding that Lupin's proposed generic product would infringe the '722 patent. During the trial, the District Court also ruled as a matter of law that the '722 patent is enforceable.

LeClair Ryan attorneys Dana J. Finberg and Alan D. Albert represented the owner of the ‘722 patent, Aventis Pharma Deutschland GmbH, as well as King Pharmaceuticals, Inc., which has an exclusive license to sell ramipril pharmaceutical products in the United States under the ‘722 patent. LeClair Ryan worked closely with Jones Day, also representing Aventis, and Kaye Scholer, L.L.P., also representing King.

08-09-2006

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Healy & Baillie, L.L.P.

Case Note-Sompo Japan Insurance Company of America, v. Union Pacific Railroad Company United States Court of Appeals For The Second Circuit; Wesley and Hall, Circuit Judges, and Trager, District Judge; 2006 U.S. App. LEXIS 17385; July 10, 2006
The United States Court of Appeals of the Second Circuit held that the Carmack Amendment to the Interstate Commerce Act of 1887 applies to the domestic rail portion of a continuous intermodal shipment originating in a foreign country, thus, denying the rail carrier the benefit of the limitation per freight unit under the US Carriage of Goods by Sea Act, 1935 (“COGSA”).

DMC Category Rating: Developed
This case note has been prepared by Michael P. Smith, an attorney with the firm of Healy & Baillie, LLP in New York. Healy & Baillie are the International Contributors to this website for the United States.

Background
Plaintiff, Sompo Japan Insurance Company, as subrogated underwriters of a cargo owner’s claim with respect to a shipment of thirty-two tractors from Tokyo, Japan to Swanee, Georgia, brought suit in the Southern District of New York against defendant, Union Pacific, the rail carrier for the land portion of the journey, for the full value of the tractors which were damaged when the train derailed. The bills of lading were “intermodal” “through” bills. Hence, they covered the entire journey, including ocean and rail carriage. The bills of lading included a “period of responsibility clause” extending COGSA’s package limitation to the carrier “whether the loss or damage to the Goods occurs at sea or not” and a “himalaya clause” extending protections and limitations contained in the bill of lading to third party carriers.

The district court granted partial summary judgment in favor of the defendant, giving effect to the contract of carriage incorporating the COGSA limitation of US$500 per tractor, for a total amount of US$16,000. Plaintiff argued on appeal that the Carmack Amendment governed defendant’s liability and, accordingly, that defendant was liable “for the actual loss or injury” to the tractors (US$479,500). The Interstate Commerce Act (“ICA”) applicable to railroads did not initially address liability for cargo damage. The Carmack Amendment to the ICA imposed a strict liability standard upon rail carriers. Regarding limitation of liability, the ICA permits a carrier to limit its liability only to a value established by written declaration of the shipper or by a written agreement between the shipper and the carrier.

Judgment
The Second Circuit Court of Appeals set aside the order of the district court. In an issue not considered previously in the Second Circuit, the Court rules that the Carmack Amendment applied to the domestic rail portion of a continuous intermodal shipment of goods, shipped under a through bill of lading, originating in a foreign country for a destination in the United States. Noting there was a split among the circuits on this issue, the Court traced the legislative history of the Carmack Amendment and determined that it was the intent of Congress that the statute should apply to the domestic inland portion of a foreign shipment regardless of the shipment’s point of origin.

Recognizing that both the Carmack Amendment and COGSA applied to the domestic interstate leg of the shipment, the Court ruled that the Carmack Amendment superseded COGSA. The Court cited well-established Second Circuit precedent holding that since COGSA applied to the rail carriage as a matter of contract (period of responsibility and himalaya clauses), it did not have the force of a statute. Therefore, the Court determined that COGSA must yield to the Carmack Amendment, which was a federal statute. Accordingly, the rail carrier’s liability was governed not by COGSA but by the Carmack Amendment.

Comment
If the decision is appealed, it may provide the Supreme Court with an opportunity to decide definitively the issue of whether the Carmack Amendment applies to a through bill of lading covering a shipment of goods originating in a foreign country.

08-09-2006

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Kirkpatrick & Lockhart Preston Gates Ellis LLP

SEC Offers Further Relief for Smaller Public Companies and Many Foreign Private Issuers from Section 404 Compliance
Today, the SEC issued two releases in its effort to grant smaller public companies, many foreign private issuers, and newly public companies additional time for compliance with Section 404 of the Sarbanes-Oxley Act of 2002. The relief is in furtherance of the ""next steps for Sarbanes-Oxley implementation"" announced by the SEC on May 17, 2006, and includes some new initiatives not previously announced. See SEC Press Release 2006-13. http://www.sec.gov/news/press/2006/2006-136.htm

The actions that are described in these releases reflect an effort by the SEC to be cognizant of the burdens placed on smaller public companies and foreign private issuers with respect to Section 404 compliance for internal control over financial reporting. The releases also emphasize the SEC’s commitment to full compliance with Section 404 (with adaptations to reflect the special circumstances of different groups of issuers), rather than wholesale or particular exemptions from compliance. The extensions will allow time for COSO to provide guidelines for small issuers and for the SEC to determine if new rules should be adopted to provide guidance for management of small issuers and foreign private issuers. A brief summary of the subject matters of the two releases is set forth below. Please note that while the relief described for smaller public companies and newly public companies in items 1 and 3 below is not final and subject to changes from the SEC, we anticipate that such relief will be adopted substantially in the form proposed.

1. Proposed Relief from Section 404 Compliance Dates for Smaller Companies (Non-Accelerated Filers). The SEC is proposing to grant relief to smaller public companies by extending the date by which non-accelerated filers must start providing a report by management assessing the effectiveness of the company's internal control over financial reporting. The initial compliance date for these companies would be moved from fiscal years ending on or after July 15, 2007, until fiscal years ending on or after Dec. 15, 2007. The SEC also proposes to extend the date by which non-accelerated filers must begin to comply with the Section 404(b) requirement to provide an auditor's attestation report on internal control over financial reporting in their annual reports. This deadline would be moved to the first annual report for a fiscal year ending on or after Dec. 15, 2008. This proposed extension would result in all non-accelerated filers being required to complete only the management's portion of the internal control requirements in their first year of compliance with the requirements. The SEC is seeking public comment on this proposal within 30 days of its publication in the Federal Register. http://www.sec.gov/rules/proposed/2006/33-8731.pdf

2. Relief from Section 404(b) Compliance Date for Certain Foreign Private Issuers. The SEC is granting relief from Section 404(b) compliance for foreign private issuers that are accelerated filers (but not large accelerated filers), and that file their annual reports on Form 20-F or 40-F. These companies will have their compliance deadline extended for an additional year, so that they will not begin complying with the Section 404(b) auditor attestation report requirement until fiscal years ending on or after July 15, 2007. However, these issuers will be required to comply only with the Section 404 requirement to include management's report in the Form 20-F or 40-F annual report filed for their first fiscal year ending on or after July 15, 2006.

The release does not change the date by which a foreign private issuer that is a large accelerated filer must comply with both the Section 404(a) and (b) requirements. These large accelerated filers are required to include both a report by management and an attestation report by the issuer's registered accounting firm on internal control over financial reporting in their Form 20-F or 40-F filed for a fiscal year ending on or after July 15, 2006.

This extension is a final Commission action and will be effective shortly, as soon as it is published in the Federal Register. http://www.sec.gov/rules/final/2006/33-8730.pdf

3. Proposed Transition Relief for Newly Public Companies . In the same release in which it proposes an extension of the Section 404 compliance dates for non-accelerated filers, the SEC also proposes a transition period for newly public companies. This transition relief would apply to any company that has become public (i.e., through an IPO, registered exchange offer, or that otherwise becomes subject to the Exchange Act reporting requirements) and would include a foreign private issuer that is listing on a U.S. exchange for the first time. These new public companies would not be required to provide either a management assessment or an auditor attestation report until they had previously filed one annual report with the SEC. This relief is being proposed in recognition of the fact that preparation of a newly public company's first annual report can be a time and resource intensive process that may quickly follow an IPO or initial listing.

08-09-2006

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McGuireWoods LLP

Nathan Kottkamp Speaks at Foundation in Healthcare Ethics Consultation Seminar
Nathan Kottkamp (Richmond) spoke on "Law and Ethics in Heathcare" at the Foundation in Healthcare Ethics Consultation seminar on June 22 in Hampton. More than 75 people attended from hospitals in Virginia and North Carolina.

08-09-2006

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Foley Hoag LLP

Massachusetts Division of Health Care Finance and Policy Issues Proposed Regulations Regarding the New Health Care Reform Law
The Massachusetts Division of Health Care Finance and Policy has issued proposed regulations relating to several provisions of the new Massachusetts Health Care Reform Law. If promulgated, these regulations would impose a number of additional requirements upon employers which may be onerous, particularly for large employers.

The new Health Care Reform Law requires employers and employees to complete a new form called the Health Insurance Responsibility Disclosure (“HIRD”). The proposed regulations outline how employers are expected to comply with this requirement:

Every employer in Massachusetts must submit an Initial Employer HIRD form by May 15, 2007. In this form, the employer must set forth its total number of employees, whether the employer offers employees access to an employer-sponsored health plan and the nature of that plan, and whether the employer maintains a cafeteria plan. Further, for every employee, the employer must state whether that employee was offered access to employer-sponsored health insurance, whether the employee accepted or declined the insurance, and whether the employee has access to alternative coverage.

After submitting the Initial Employer HIRD, employers with at least 50 employees must submit a new HIRD form every quarter regarding any changes to the information contained in the Initial Employer HIRD form.

Every employer must submit an Annual HIRD update by May 15 of each year.

The Division of Health Care Finance and Policy may request information or audit employers regarding their HIRDs. The proposed regulations would obligate employers to comply with such requests.

Note that the Division of Health Care Finance and Policy has not yet created the HIRD form.

The proposed regulations also address what constitutes an employer’s “fair share” contribution towards the premiums costs of health insurance. Under the new Health Care Reform Law, an employer that fails to make a “fair and reasonable” contribution can be subject to a fee of up to $295 per employee per year. Under the proposed regulations, employers will be deemed to have made a fair and reasonable premium contribution if they (a) have at least 25% of their employees enrolled in the employer’s group health plan, or (b) the employer offered to pay at least 33% of the premium cost. In determining whether at least 25% of the employees are enrolled, the proposed regulations provide that employers must count all employees who work at least 35 hours per week, including seasonal employees who work at least 16 weeks per year and temporary employees who work at least 90 days per year.

The proposed regulations are scheduled to take effect on October 1, 2006. Interested parties may send written comments to the Division of Health Care Policy and Finance on the proposed regulations relating to the employer’s “fair share” contribution until August 18, 2006 and until August 25, 2006 for the HIRD regulations.

08-09-2006

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Ruskin, Moscou & Faltischek, PC

Ruskin Moscou Faltischek Named General Counsel by Bethpage Federal Credit Union
Ruskin Moscou Faltischek, P.C. announced today it has been retained to represent Bethpage Federal Credit Union, one of the largest credit unions on Long Island and in the nation, as general counsel. Ruskin Moscou Faltischek’s Co-Managing Partner, Douglas A. Cooper, heads the Bethpage Federal Credit Union client service team. The Firm will provide comprehensive services to meet the full complement of Bethpage Federal Credit Union’s legal needs.

“We are very pleased to have been engaged by Bethpage Federal Credit Union,” said Cooper. “This relationship is very important to our firm. We will be providing legal services on a broad scale, from regulatory and compliance work to employee relations, drawing on our own wide-ranging legal experience.”

Bethpage Federal Credit Union (Bethpage), headquartered in Bethpage, New York, has assets of over $2.3 billion with a broad membership base of more than 137,000 members nationwide. Their members represent a diverse cross-section of the Long Island economy, including many high-tech, manufacturing, pharmaceutical, legal and service industries.

""In the last few years, Bethpage has grown from a select membership to a community-wide credit union representing individuals, businesses, and institutions"" noted Bethpage President and CEO Kirk Kordeleski. ""In moving Bethpage forward to become one of the region's premier financial services provider, I've every confidence in the legal credentials, expertise and astute guidance of the Ruskin Moscou Faltischek team as our strategic partner.""

For more than 35 years, Ruskin Moscou Faltischek, headquartered in Uniondale, has built a reputation as one of the region's leading providers of innovative legal services. Its attorneys are practical, experienced advocates who measure their success by their clients' success. Cornerstone groups in all major practice areas of the law are represented at the firm, including corporate & securities, financial services, commercial litigation, intellectual property, health care, real estate and trusts & estates. Through its independent arm, Island Strategies, lobbying services are provided at all governmental levels. Clients include large and mid-sized corporations, privately held businesses, institutions and individuals.

08-09-2006

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