Law Firm News

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Law Firm News

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Crowell & Moring LLP

“State Department Takes Stand Against Falun Gong”
Stuart H. Newberger is featured for his comments on the governments stand against the Falun Gong religious group.

08-07-2006

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Ruskin, Moscou & Faltischek, PC

Benjamin Weinstock Appointed Adjunct Professor at Hofstra University School of Law
Ruskin Moscou Faltischek, P.C. announced today that Benjamin Weinstock, partner and co-chair of the firm's Real Estate Department, has been appointed to Hofstra University School of Law’s faculty as a Special Professor of Law.

Beginning on August 28, 2006, with the fall semester at Hofstra, Weinstock will teach a four-credit course on real estate transactions. Hofstra University Dean Aaron Twerski recommended Weinstock for this position based on his personal and professional reputation as well as the reputation of Ruskin Moscou Faltischek. Weinstock previously served as an adjunct professor of Real Estate Law at Yeshiva University’s Sy Syms School of Business.

""I am excited and honored to join the adjunct faculty of Hofstra University School of Law,” said Weinstock. “Hofstra is a tremendous institution, and I look forward to working with bright and passionate students studying the field of real estate law.""

Weinstock’s breadth and depth of experience representing clients in an array of real estate matters has led to his appearance in court to testify as an expert witness in several real estate matters. In recognition of his knowledge and contributions to the real estate industry, Governor Pataki named Weinstock to the prestigious New York State Real Estate Board, where he was elected Secretary. He is one of only 13 real estate experts from across the state to serve on the Board.

Weinstock is a member of the legal advisory boards of Chicago Title Insurance Company and First American Title Insurance Company of New York, is a board member of C.W. Post’s Real Estate Practitioner’s Institute, and serves on the Real Property Law Committees of the Nassau County Bar Association and the American Bar Association. He also serves on the Executive Committee of the Real Property Law Section of the New York State Bar Association as well as the Committee on Problems Affecting Title and Transfer and the Commercial Leasing Committee. He is a frequent lecturer on real property law matters, having chaired several educational programs for the New York State Bar Association and others. In the community, Mr. Weinstock currently serves as Deputy Mayor of the Incorporated Village of Cedarhurst, where he resides, and was previously the Deputy Village Attorney.
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.

Hofstra University School of Law was founded in 1970 and is accredited by the ABA, boasting an alumni body of approximately 8,500 graduates. The school is located on campus at Hofstra University. In addition to its full-time juris doctor (J.D.) degree program, Hofstra Law School offers part-time day and evening J.D. programs as well as graduate degree programs in American Legal Studies and International Law.

08-07-2006

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McDermott Will & Emery

FEDERAL DISTRICT COURT RULES AGAINST SEC IN CASE INVOLVING GATEWAY'S FORMER CONTROLLER, ROBERT MANZA
In November 2003, the U.S. Securities and Exchange Commission (SEC) brought civil securities fraud charges against Robert Manza, former controller of Gateway, Inc. The SEC contended that Manza had engaged in fraud as a result of his involvement in seven transactions that were recorded on the books of Gateway during the third quarter of 2000. The SEC alleged that these transactions were improperly recorded because they violated generally accepted accounting principles and were not properly disclosed.

The SEC filed a summary judgment motion with respect to three of these transactions contending that there were no triable issues of material fact precluding a finding of liability against Manza. On August 2, 2006, U.S. District Court Judge, Roger Benitez (S.D. Cal.), denied this motion in its entirety and granted Manza’s cross-motion for partial summary judgment. Manza was granted partial summary judgment with respect to five of the seven transactions in question, including two of the three transactions that had formed the basis for the SEC's summary judgment motion. In granting Manza's motion on the five transactions, the court held that the SEC had provided no evidence establishing Manza's alleged liability. With respect to the single remaining transaction upon which the SEC moved for summary judgment, Judge Benitez ruled that genuine factual issues existed as to Manza's alleged liability and denied the SEC's motion on that ground.

The McDermott team representing Manza included trial partners James Sanders and Brandon Roker. McDermott’s Trial Department delivers full litigation services throughout all of our offices. Our lawyers provide clients with trial skills and experience which are effectively used in the many areas of law and business where disputes arise. We are regularly engaged in all aspects of civil, regulatory and white-collar criminal defense litigation in U.S. and international forums. The Firm's Los Angeles office opened in 1987 in its Century City location. There are approximately 90 lawyers in this office servicing our local markets, multinational corporations, both public and private, as well as private individuals.

08-07-2006

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Pillsbury Winthrop Shaw Pittman LLP

MiFID and Outsourcing in the UK
MiFID is the Markets in Financial Instruments Directive 2004/39/EC and replaces the Investment Services Directive (which was adopted in 1993). It is part of the European Union's ongoing Financial Services Action Plan , which aims to harmonize all Financial Services in the European Internal Market. MiFID seeks to regulate investment firms and provide a level playing field, thus ensuring greater consumer choice and protection. However, its regulations on outsourcing have caused a degree of concern, as the regulations place a potentially cost-heavy burden on investment firms to ensure that any such outsourcing does not jeopardise their quality of services.

08-07-2006

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Manatt, Phelps & Phillips, LLP

Caveat Preemptor: Laws v. Sony Music Entertainment, Inc.
The “right of publicity” is a state law doctrine which protects a person’s name, likeness, or other aspects of his or her “identity” from commercial exploitation. “Copyright” is a federal law which protects a work of authorship that has been reduced to a tangible medium of expression.

So far, so good. The problem is that specific expressions of an individual’s “identity” are almost always contained in copyrightable works. Copyright law contains a preemption clause. Does this mean that copyright law preempts right-of-publicity claims whenever an alleged infringement of the right of publicity involves a copyrighted work?

For years, the answer to that question was, clearly, “no.” Aside from one idiosyncratic and heavily criticized decision, Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n., 805 F.2d 663 (7th Cir. 1986), criticized in, inter alia, Melville B. Nimmer and David Nimmer, Nimmer on Copyright, § 2.09[F] at 2-166-2-170.1 (Matthew Bender 1999), virtually every court to consider the question held that right-of-publicity claims are not preempted, because the “identity” which was infringed is not a work of authorship and is separate from the specific expression of that identity contained within copyrighted works. See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 567 (1977); Toney v. L’Oreal U.S.A., Inc., 406 F.3d 905, 908 (7th Cir. 2005); Downing v. Abercrombie & Fitch, 265 F.3d 994, 1003-1005 (9th Cir. 2001); Landham v. Louis Golub Toys, Inc., 227 F.3d 619, 624 (6th Cir. 2000); Brown v. Ames, 201 F.3d 654, 658 (5th Cir. 2000); TNB Enters. v. Matthews, 78 Cal. App. 4th 362, 374 (2000).

Two courts nonetheless found preemption where a right-of-publicity claim arose from an authorized recording of an individual’s performance. See Baltimore Orioles, supra; Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (1996).

The U.S. Court of Appeals for the Ninth Circuit recently accepted a preemption argument in Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006). Laws involved a singer, Debra Laws, whose contract granted copyright in her master recordings to her record company, but provided that the recordings could not be used in subsequent audiovisual works, or to promote other artists, without her permission.

The record company later licensed “samples” of the master recording in another artist’s compact disc and music video without Laws’s permission. Laws filed a right-of-publicity suit, a federal trial court in Los Angeles, CA granted summary judgment against her on copyright preemption grounds, and she appealed.

On appeal, the Ninth Circuit evaluated the copyright preemption argument by examining whether Laws’s right-of-publicity claim fell within the “subject matter” of and was “equivalent” to copyright. 448 F.3d at 1137-38. It concluded that Laws’s claim did fall within copyright subject matter because “the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium.” Id. at 1141. It also found that Laws’s right-of-publicity claim was “equivalent” to copyright law because the publicity claim’s requirement of “commercial use” did not “transform the nature of the action.” Id. at 1144.

The decision is noteworthy because it is the first new federal circuit court to accept a copyright preemption argument to a right-of-publicity claim in 20 years. It also is, to a large extent, at war with itself. The Laws Court was careful to “recognize that not every right of publicity claim is preempted by the Copyright Act,” 448 F.3d at 1145, and it attempted to distinguish some of the contrary authority cited above. Id. at 1141-42.

However, the logic of Laws would wipe out most right-of-publicity claims if it were applied consistently, and its distinctions arguably are not persuasive. Virtually all right-of-publicity claims involve an aspect of an individual’s identity that “is contained within a copyrighted medium,” whether it be an image in a photograph, name on a poster, likeness in a drawing, or voice in an audio recording. Evoking a person’s identity, not the particular expression of that identity embodied in a copyrighted work, is the essence of a right-of-publicity claim, and is the reason why most courts reject copyright preemption defenses. The Laws Court found copyright preemption because it accepted an argument that virtually all other courts, including another panel of the Ninth Circuit, rejected.

The Laws Court attempted to distinguish Downing and Toney by pointing out that they involved “photographs” rather than audio recordings, and were used for “advertising purposes,” which implied an “endorsement.” 448 F.3d at 1141-42. However, it is difficult to see why copyright preemption should apply differently to copyrighted photographs than to copyrighted sound recordings. Endorsement is irrelevant to right-of-publicity claims, and, in any event, the Laws sample was used in another artist’s music video, which is arguably an “advertisement” for the other artist’s music.

The Laws Court’s underlying concern appears to be its belief that “the developing right of publicity could easily supplant the copyright scheme.” 448 F.3d at 1145. However, the feared result is impossible. No publicity case rejecting copyright preemption has eliminated copyright protection for the work in which a person’s identity is expressed. Given the U.S. Constitution’s Supremacy Clause, no court could do so. Any person who seeks to use a copyrighted work in a prohibited way will have to obtain the copyright owner’s permission regardless of any right-of-publicity protection that might be afforded the person depicted in the copyrighted work.

If anything, the opposite concern is more realistic. Acceptance of the doctrine of the Laws Court will, “left to creative legal arguments,” risk supplanting the right of publicity with copyright law, eviscerating the right of publicity in the process.

The Laws decision has thus injected considerable uncertainty into copyright preemption analysis involving right-of-publicity claims. At a practical level, it is likely to encourage more copyright preemption disputes, and more varying decisions, as litigants and courts struggle to understand Laws’s proper application.

08-07-2006

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Dorsey & Whitney, L.L.P.

Age Discrimination -- A Summary for UK Employers
The Employment Equality (Age) Regulations 2006 will come into force on 1 October 2006.

They represent a major change which requires employers to examine both their employment contracts and their working practices to ensure that they will be compliant.

Who is covered?
Employees, contract workers and persons undergoing vocational training (including unpaid work experience) are all covered.

What is covered?
The Regulations will outlaw discrimination on grounds of age. This will include direct discrimination, i.e. by applying less favourable treatment to a worker on grounds of age (or apparent age), and indirect discrimination, i.e. by application of a provision, criterion or practice which on the face of it applies equally to all workers but in practice puts workers in a certain age group at a particular disadvantage.

Both direct and indirect discrimination may be objectively justified if the employer can demonstrate that it is a “proportionate means of achieving a legitimate aim”.

Workers are also protected from victimisation arising from any claim that the Regulations have been broken and from harassment on the grounds of age. The definition of harassment protects workers from actions which have the purpose or effect of violating their dignity or creating a hostile, offensive or humiliating environment for the worker. If this was the effect, then it does not matter that it was not intentional. In practical terms, this may mean that light-hearted but unwelcome banter, for example as a colleague approaches a milestone birthday, may constitute harassment.

It is important to note that, although there is a natural emphasis on the rights of older workers, the discrimination provisions apply equally to younger workers who believe that they have been disadvantaged for age-related reasons. For example, if an employer advertises a job requiring a particular number of years of experience, this may indirectly discriminate against younger workers, unless the employer can demonstrate an objective justification for that level of experience.

Specific exceptions
The Regulations provide some general exceptions from the obligation to justify the application of age-related criteria, including:

Service-related employment benefits such as company sick pay and holidays are permissible without the requirement to objectively justify them, provided that any service-related provisions apply only to the first 5 years of employment. Benefits reserved for employees with longer periods of service may be legitimate if the employer can show that they fulfil a business need, e.g. by encouraging loyalty or motivation, or rewarding experience.

Enhanced redundancy payments, provided that payments are calculated in the same way for all employees. (In relation to statutory redundancy payments, the government has decided to remove the lower and upper age limits on qualification for payments, but to retain the two year qualification period and the age-related multiplier in the formula for quantifying entitlement)

Where there is a “genuine occupational requirement” for applying an age-related requirement, but this will be applicable only in exceptional circumstances.

Certain types of positive action intended to “prevent or compensate for disadvantages linked to age.

08-07-2006

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Kirkland & Ellis

Kirkland & Ellis International LLP Advises on £1.46 Billion Caudwell Communications Acquisition
Kirkland & Ellis International LLP announced today that it has advised private equity firm Providence Equity Partners on its joint acquisition of Caudwell Communications for £1.46 billion. Providence Equity Partners agreed the purchase late last Friday along with private equity fund manager Doughty Hanson. It is the largest UK deal Kirkland & Ellis has advised on to date.

The acquisition of Caudwell Communications includes the independent mobile phone retailer Phones4U, together with other telecommunication and distribution companies within the group. Providence Equity Partners will take the Phones4U retail chain, a business-to-business operation and an insurance division called Lifestyle Services. Doughty Hanson will purchase the logistics, handset distribution and mobile phones accessories divisions, including 20:20 Logistics and Dextra.

Providence Equity Partners is an international private investment firm specialising in equity investments in communications and media companies around the world. It has invested in more than 80 companies operating in over 20 countries.

Kirkland & Ellis advised the client on all corporate aspects of the deal, as well as on tax and intellectual property issues. The Kirkland team is being led by private equity partner Matthew Hurlock who commented: “The deal was agreed within a tight timeframe but we are very pleased to have helped achieve a successful acquisition agreement for Providence, especially since this was the first time we have advised the client from London.”

The Kirkland & Ellis team also included fellow partners Ian Taplin, Pierre Andre Dubois and John Baldry with assistance from associates Ross Allardice, Michel DeBolt, Christopher Field, Tai Hsia, Wen Liao, Jillian McKeown and Nicola Wiles.

Kirkland & Ellis LLP is a 1,100-attorney law firm representing global clients in complex corporate, restructuring, tax, litigation, dispute resolution and arbitration, and intellectual property and technology matters. The Firm has offices in London, Munich, Chicago, Los Angeles, New York, San Francisco and Washington, D.C.

08-07-2006

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