Law Firm News

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Law Firm News

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Hahn, Loeser & Parks, L.L.P.

Alan Kopit discusses consumer issues about internet based businesses.
Alan Kopit advises to be careful when getting involved with internet based businesses that reach out to you with email or direct mail solicitations. They usually advertise by having you purchase equipment, "how to" books, and more with promises that you will make a lot of money. The majority of the time they are out there trying to scam people out of money. He discusses how its important to get the claims the businesses make in writing and also to check out the companiea at the Better Business Bureau or through consumer hotlines.

08-03-2006

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Kramer, Levin, Naftalis & Frankel, LLP

Weinberger Quoted in New York Law Journal about CIBA-Johnson & Johnson case
Harold Weinberger was quoted in an article entitled ""Order Unclear; Judge Finds No Contempt"" in the New York Law Journal about CIBA Vision Corporation not being held in contempt of court for violating an agreement not to print statements comparing its product with Johnson & Johnson’s contact lenses. Judge Swain who penned the ruling also denied CIBA’s motion for partial summary judgment.

The decision stems from a lawsuit filed by Johnson & Johnson in September 2004 under the Lanham Act in which it challenged CIBA’s marketing of its new line of contact lenses. Weinberger obtained a judgment on behalf of Johnson & Johnson enjoining CIBA from making false claims comparing its new O2OPTIX® contact lens product with ACUVUE® lenses and also awarding corrective advertising.

After CIBA issued new materials comparing its product to Johnson & Johnson’s, Kramer Levin argued that the new ad violated the 2004 injunction, and asked the court to grant it “immediate relief” to compensate it for lost customers caused by the CIBA claim.

Weinberger said he was pleased Judge Swain denied CIBA’s request for summary judgment, paving the way for a trial. Jonathan Wagner and Norm Simon were also mentioned in the article as representing Johnson & Johnson.

08-03-2006

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Holland & Hart, L.L.P.

Pension Protection Act - Automatic Enrollment And Fiduciary Provisions
Just when you thought it was safe to go back in the water, Congress has passed another major piece of legislation that will have significant impact on retirement plans. The Pension Protection Act (H.R. 4) was passed on August 3, 2006, and President Bush is expected to sign it into law.

The Pension Protection Act covers a massive amount of territory in over 900 pages. In order to reduce it to manageable parts, the Benefits Law Group plans to issue four News Alerts summarizing the features that are most likely to be relevant to employers and their retirement plans. This first News Alert highlights the automatic enrollment and fiduciary provisions of the Pension Protection Act. We anticipate the second News Alert will cover remaining defined contribution plan topics, followed by two News Alerts addressing provisions of the Act that affect defined benefit plans.

Most of the provisions are effective for plan years beginning in 2008 and later. Consequently, the Act states that plans must be formally amended to include any and all necessary Pension Protection Act provisions by December 31, 2009 (for calendar year plans).

Automatic Enrollment

Automatic enrollment (sometimes called “negative deferral elections”) has been a part of the 401(k) landscape since 2000, when the IRS issued guidance permitting employers to make default deferral elections of 3% for new employees. Since that time, the IRS has issued additional guidance making clear that automatic enrollment could be applied to existing employees, and that the default percentage could be more than 3%.

In addition to the social policy issue of encouraging private retirement savings, automatic enrollment is attractive to employers because it can be effective in boosting nonHCE participation levels, making it easier to pass nondiscrimination testing. Nevertheless, many employers were reluctant to implement it. The Pension Protection Act contains many provisions clearly intended to encourage even more plans to automatically enroll participants.

The Act removes any concern that state garnishment laws might prohibit automatic enrollment by creating a clear exemption in ERISA permitting it. This provision is effective immediately.

The Act provides relief for fiduciaries who must select the default investment for automatic enrollment.

As an incentive to implement automatic enrollment, the Act will allow automatic enrollment plans that meet certain basic requirements up to 180 days after the end of the plan year to return excess 401(k) deferrals to HCEs (compared to the current rule of 2 ½ months).

A new type of ADP/ACP safe harbor is created for plans that include a “qualified” automatic enrollment arrangement. To take advantage of this safe harbor:

The plan must automatically enroll all participants who have not made a written election in the past to participate or not to participate.

The initial enrollment percentage must be at least 3-10%, and must gradually increase (if necessary) until a contribution rate of 6% in the fourth year of automatic participation.

The employer must match 100% of the first 1% of pay deferred, and 50% of the next 5%, to a maximum of 3 ½ %. Alternatively, the employer may make a 3% nonelective contribution to all eligible employees. This employer contribution must be 100% vested after two years.

Investment Advice

All plans that permit participants to direct the investment of their own accounts provide some measure of investment education so that participants can make informed investment decisions. But only a limited number of those plans take the next step of offering investment advice. Many have pointed to the lack of investment advice as a cause of low participation (employees are reluctant to contribute without more assistance in making investment decisions).

ERISA provides that anyone who provides investment advice to participants for a fee is a fiduciary to the plan, which means that the prohibited transaction (self-dealing) rules of ERISA apply to investment advisors. This was perceived as one of the barriers to plans offering investment advice. To alleviate this concern (and continuing the theme of encouraging private retirement savings), the Pension Protection Act creates a new statutory prohibited transaction exemption called an “eligible investment advice arrangement.”

An eligible investment advice arrangement must either use an objective computer model of investment alternatives, or the arrangement must not permit the investment adviser’s compensation to vary with the investments selected. In either circumstance, an independent fiduciary must approve of the eligible investment advice arrangement.

This provision has an effective date of January 1, 2007, so plans that want to implement an eligible investment advice arrangement will need to act soon.

Default Investment Selection

ERISA section 404(c) provides limited protection to fiduciaries where participants are allowed to direct their own investments. Fiduciaries have historically been on thin ice, however, where participants fail to make affirmative elections. The Pension Protection Act directs the Department of Labor to issue regulations in the next six months that will extend 404(c) protection to the fiduciary’s selection of default investments.

This provision is scheduled to take effect January 1, 2007, so plans will want to be poised to take whatever actions are necessary after the DOL issues regulations.

08-03-2006

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Dechert LLP

It's Hammer Time
For a few days this July and August, Philadelphia lawyers are abandoning their well-trod office hallways for hotter and dirtier territory. Lawyers from firms like Morgan Lewis & Bockius and Dechert are volunteering with Habitat for Humanity - a nondenominational Christian organization that builds simple and affordable homes for deserving families - through a program called "Buildable Hours." Buildable Hours is a Washington, D.C.-based nonprofit organization of law firms that works in conjunction with local Habitat chapters. According to Dechert partner Suzanne Turner, investing in a day at a Habitat building site is a great way for summer associates to meet, greet and bond with their co-workers and superiors. The money would typically be spent on a cocktail party or some other social event, she said. Spending it on Habitat is a worthier and more productive way to interact with co-workers outside of the office. "You take people out of their ordinary work context and put a hammer in their hands, it puts everyone on an equal footing," Turner said. It has a "great leveling effect," she said and is, fundamentally, "a lot of fun." Buildable Hours can be a great way to unify both the office and the community, participants said. Lawyers work alongside law firm employees, summer associates, Habitat project managers, Habitat beneficiaries and community volunteers. It's "a team-building exercise," Turner said. "You can't build a house by yourself," she said. The "long-term goal" of the program, Turner said, would be to "build a house from start to finish" in conjunction with Habitat and other Philadelphia law firms. It would "really be our own home," she said. And it would be great to see all the firms in the city "collectively working on a project" for the greater good. "We really didn't want this to be Dechert-driven," Turner said. "We were thrilled to launch it, but we're intent on making it a collective, citywide initiative." Caroline Olson added, "A home is something so many of us take for granted. We're pretty lucky here working in the Cira Centre. . . . It gives you a good sense of perspective to get out and help those who are less fortunate," she said. Associates noted it was an occasion to get to know members of the firm while also doing some valuable community service. "Even cocktail parties get old after a while," said Zach Smith, a Dechert summer associate. Fellow summer associate Dean Krishna agreed. "It's a welcome change after the usual," he said. "It's good to get out and mix with people in the community." Besides, joked summer associate Shevon Rockett, "at the end of the day you feel a lot better than [I did] after last night's party.

08-03-2006

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Bullivant Houser Bailey

Talking And Driving Don't Mix -- Employer Responsibility For Business Cell Phone Use
The use of cell phones in the United States is at an all time high. More and more, employers are finding cell phones to be essential tools which help boost productivity and keep their employees connected to the office and to clients.

With this increased reliance on cell phones to conduct business outside the office comes an increase risk of liability for employers. This is especially true where employees use their cell phones to conduct work-related business while they are driving. When an employee gets into a vehicle accident while using a cell phone for work-related business, both the employer and the employee may be found liable. In fact, employers in several jurisdictions have already been hit with lawsuits allegedly caused by employees driving and talking on the phone.

A recent study found that drivers who maneuver through traffic while talking on the phone are more than 5 times more likely to get into an accident than non-distracted drivers. Surprisingly, the study also found that drivers engaging in cell phone conversations can be more dangerous than drunk drivers. Whereas drunk drivers tend to be more aggressive, drivers tend to be more sluggish and have a reduced reaction time when talking on the phone. The study also showed that driver performance remained the same whether the driver was holding the phone or using a hands-free device.

Tips for Employers

To reduce their risk of liability, employers should update their employee manuals and policies to include a specific policy limiting or prohibiting the use of cell phones while driving - as well as other hand-held devices (such as Blackberries, Treos, and Palm Pilots) - for work-related purposes. To afford the most protection, the policy should prohibit employees from talking on the phone or using hand-held devices for work-related purposes while driving. The policy should further state that employees who are in an auto accident or charged with traffic violations resulting from talking on the phone or using a hand-held device while driving will be solely responsible for any resulting liability.

Where it is not practical to completely prohibit employees from using cell phones or other hand-held devices while driving, employers should adopt a policy which provides specific parameters for such use. For example:

* as much as possible, pull over and safely stop the vehicle before using the phone
* keep calls short while driving
* always dial when the car is not moving
* use speed-dialing as much as possible
* avoid looking up phone numbers while driving
* use a hands-free options as much as possible
* avoid using the phone or hand-held device in heavy traffic or bad weather
* avoid stressful or emotional conversations while driving
* keep your eyes on the road

Contact your Bullivant employment lawyer if you would like to review your company's policies regarding cell phone use while driving.

08-03-2006

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Mayer Brown LLP

New Reinsurance Partner for Mayer, Brown, Rowe & Maw
International law firm Mayer, Brown, Rowe & Maw LLP is pleased to announce the appointment of partner Peter Schwartz to its Insurance & Reinsurance Group in London. He joins the firm from Baker & McKenzie LLP on 1 September 2006.

Recommended in both the Legal 500 and Chambers UK, Peter specialises in non-marine reinsurance and liability insurance on behalf of the international insurance and reinsurance market. His multi-jurisdictional expertise will blend well both with the global firm's existing insurance and reinsurance, corporate, finance, securitisation and regulatory capability and with the well established firm-wide client and industry development programme.

He joins the London Litigation and Dispute Resolution Group made up of 30 partners, which includes the Insurance & Reinsurance Group in London. Peter will have support across all practices but specifically a total of more than 450 lawyers worldwide specialising in different aspects of litigation and dispute resolution as well as corporate insurance areas, securitisation and finance groups and the insurance and reinsurance regulatory practice.

The size of the Insurance & Reinsurance Group based in London has steadily increased. Reinsurance dispute resolution partner Ian McKenna joined the firm in 2003 and insurance insolvency partner Richard Gregorian in 2004. Additionally, Jane Childs was promoted to partner in January 2006. Over the course of 2005/6 the Group has taken on an additional ten solicitors adding further strength to the firm's capabilities.

The full service practice encompasses all major areas of the London and international insurance and reinsurance markets, including high value claims in the areas of professional indemnity (including construction), financial institutions, directors' and officers', public and product liability, political risks and terrorism, insurance restructuring and insolvency and reinsurance. The firm also advises insurance and reinsurance companies on corporate and commercial issues including mergers and acquisitions, securitisation, competition / anti-trust, tax, outsourcing, employment and regulatory matters.

Head of Reinsurance in London, Karen Abbott, commented: ""The Insurance & Reinsurance Group at Mayer, Brown, Rowe & Maw remains a strength of the firm in London and will continue to be a major area of focus in the future. We are delighted to welcome Peter Schwartz to our team as he will enhance our reinsurance offering to clients, as well as adding strength to the firm's cross-practice success for the insurance and reinsurance market. As a highly regarded individual in the industry, Peter's arrival comes at an exciting time as we help our clients in an increasingly challenging environment.

08-03-2006

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Jackson Walker L.L.P.

Chris Thompson - Accepted to Participate in Leadership Dallas
Chris Thompson has been accepted to participate in Leadership Dallas, a program sponsored by the Greater Dallas Chamber of Commerce. Leadership Dallas, a 10-month community leadership program, trains participants in civic responsibilities by providing education on issues in the Dallas community such as economic development, criminal justice, education, health care, human services, government and politics. This training forum also provides participants with the history of the area. Since 1975, Leadership Dallas has been committed to developing a network of leaders with a strong awareness of their community. The class is made up of approximately 55 people with diverse backgrounds and runs from September till June.

08-03-2006

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