Law Firm News

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Law Firm News

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Ross, Dixon & Bell, LLP

Chambers USA Ranks Ross, Dixon & Bell, LLP as a Leading Insurance Law Firm
Chambers USA: America ’s Leading Business Lawyers, 2006-2007, has ranked Ross, Dixon & Bell, LLP as a leading insurance law firm in the United States. Six attorneys from RDB’s Washington office were also honored as leading lawyers in their respective fields.

The Chambers guides are highly respected around the world. The rankings in Chambers USA are based on in-depth interviews with attorneys, clients, and corporate counsel. The qualities on which rankings are assessed include technical legal ability, professional conduct, client service, commercial awareness/astuteness, diligence, commitment, and other qualities most valued by the client.

According to the guide, RDB maintains a “spectacular insurance practice” with an “impeccably professional team.” Chambers USA highlighted the firm’s “well-established and highly respected D&O practice and also professional liability and employment practice liability teams.” Chambers USA notes that “interviewees believe that the firm offers the kind of top-level service that is usually the centerpiece of far larger - and more expensive - firms, and appreciate the fact that the firm’s high degree of internal organization and consistent client focus are key assets.”

Once again, Gary Dixon, a founding partner, was named as a leading lawyer. He is recognized by the guide as “one of the best attorneys in his field” and as a “recognized authority on D&O liability litigation.”

Recognized for their D&O work were partners David Gishe, Leslie Ahari, and John Duchelle. Wallace Christensen was included for his work with both D&O and E&O coverage. Partner Cathy Simon was included for her work with professional liability insurers.

07-11-2006

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Henson & Efron, PA

Christopher Burns Joins Henson & Efron, P.A.
Christopher Burns has joined the Minneapolis law firm of Henson & Efron, P.A. as an Officer and a member of the firm’s Estate, Probate and Trust Administration practice group.

Christopher focuses his practice on estate planning, business succession planning, elder law, and estate administration. He also devotes a significant amount of his practice to the taxation of trusts and estates. He frequently presents on these topics to individuals and business groups. Christopher is a member of the Minneapolis Rotary (#9), the Financial and Estate Planning Council of St. Paul, the Minnesota State Bar Association and the Hennepin County Bar Association. Christopher is currently the Program Chair for the Minneapolis and St. Paul Estate Planning Councils and past Chair of the Hennepin County Bar Association’s Probate and Trust Law Section. In addition to numerous pro bono efforts and other civic involvements, Christopher was appointed by Governor Tim Pawlenty to the Board of Minnesota Academic Excellence Foundation and served as its Chair. Christopher is a columnist for Good Age newspaper, a mentor for St. Thomas Law School students, and a member of the Woodbury Economic Development Commission. He was also named a 2006 “Rising Star” by Minnesota Law & Politics magazine. Prior to joining Henson & Efron, Christopher was a partner at Rider Bennett, LLP.

Christopher received his J.D., cum laude, from Syracuse University College of Law and his undergraduate degree from the University of Wisconsin - River Falls. He is admitted to practice in Minnesota and the U.S. District Court, District of Minnesota.

07-10-2006

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Buckingham, Doolittle & Burroughs, LLP

DAVID W. WOODBURN APPOINTED CHAIRMAN OF TRUSTS & ESTATES PRACTICE GROUP AT BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP
Buckingham, Doolittle & Burroughs, LLP (“BDB”) is pleased to announce the appointment of David W. Woodburn to Chairman of the Trusts & Estates Practice Group. He is a Shareholder, resident in the Akron office.

President and CEO Nick George said, “BDB is grateful to have David’s experience, knowledge, and leadership. As a leader in his practice area, we are confident that he will lead the Trusts & Estates Practice Group with dedication and determination, and continue our high standards and ethics.”

Mr. Woodburn focuses his practice in all facets of trusts and estates, estate administration, estate planning, guardianships, probate litigation (including will contests and intentional interference with inheritances) and related tax issues. He represents clients in residential and commercial sales transactions, commercial leases, and construction disputes.

Mr. Woodburn earned his J.D. from The University of Akron School of Law, Akron, Ohio in 1996. In addition, he received his Bachelors and Masters degrees from Miami University, Oxford, Ohio and The University of Akron College of Business Administration, Akron, Ohio in 1993 and 1996, respectively. Mr. Woodburn is a member of the American, Ohio State, and Akron Bar Associations.

Mr. Woodburn resides with his family in Copley.

07-10-2006

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Kaye Scholer LLP

Kaye Scholer's Chicago Office Welcomes Robert C. Davis, III
Kaye Scholer has announced the arrival of Robert C. Davis, III in the Corporate and Finance Department of the Chicago office.

Mr. Davis joins Kaye Scholer from Kirkland & Ellis LLP, where he focused primarily on private equity leveraged buyouts, mergers, acquisitions, divestitures and minority equity investments. Mr. Davis has handled transactions ranging from several million dollars to over $1 billion and has represented closely held companies, public companies and numerous private equity funds including: Code, Hennessy & Simmons; Summit Partners; Liberty Partners; Goense Bounds & Partners; Pfingsten Partners; and Chicago Growth Partners.

Mr. Davis attended Duke University where he received an A.B. in Public Policy Studies. He graduated magna cum laude and Order of the Coif from the University of Georgia School of Law where he was the founder of the Business and Corporate Law Association and an editorial member of the Georgia Law Review. In addition, he received an MBA from the University of Georgia's Terry College of Business where he was the recipient of the Terry Scholarship, the highest honor awarded to MBA students.

Gary Silverman, head of Kaye Scholer's private equity practice in Chicago, welcomed Mr. Davis saying, ""The addition of Rob Davis to our Chicago private equity team is reflective of our continued commitment to growth in this area. Rob's expertise and client relationships will be a great addition to our practice.""

Michael Solow, head of Kaye Scholer's Chicago office added, ""We are excited that Rob is joining our team. His wealth of experience brings high caliber growth to the Chicago office and we welcome individuals of his stature

07-10-2006

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Kauff, McClain & Mcguire, LLP

Jeff Polsky to Appear as Panelist on Sexual Harassment Litigation
Continuing Education of the Bar – California (CEB) has invited Jeff Polsky to be a panelist at a seminar entitled “Preventing & Dealing with Sexual Harassment Claims.” Jeff will speak at the seminars in Sacramento ( July 14, 2006) and San Francisco ( August 11, 2006). Jeff is also a co-author of the CEB Action Guide, “Bringing and Defending a Sexual Harassment Action,” which will be provided to program participants. For more information about the program, click here. For information about the Action Guide, click here. Founded by the University of California and the State Bar of California, CEB provides educational programs and materials for California lawyers.

07-10-2006

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Womble Carlyle Sandridge & Rice, PLLC

Hart-Scott-Rodino Notifications Can Now Be Filed Electronically
Parties who are required to file pre-merger notifications under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 no longer have to make numerous copies of voluminous attachments before they file the notification. They can now make those filings electronically via the Internet if they want to. On June 23, 2006, the Federal Trade Commission (the ""FTC"") published amendments to the pre-merger notification rules to allow the electronic filing. 71 Fed. Reg. 35995 (2006) (to be codified at 16 CFR Part 803). The new rules are effective immediately upon publication.

The Clayton Act, 15 U.S.C. 18a, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. 94-435, requires all persons contemplating certain mergers or acquisitions to file notification with the FTC and the Antitrust Division of the Department of Justice (the ""DOJ"") and wait a designated period of time before consummating such transactions. Under the new rules, a filing person now has three options when filing such notification. It can file the entire package (the notification form and all attachments) the traditional way – send one original and one copy of the entire package to the FTC and three copies to the DOJ. It can also file the entire package electronically. Or, it can do a combination of both – submit the notification form electronically, but send in the documentary attachments in paper copies.

A new website, https://www.hsr.gov has been set up to accommodate the electronic filing of the pre-merger notifications. Because of the highly sensitive nature of the HSR filings, the FTC has taken several steps to ensure the confidentiality and security of the online filings. All filers are required to have an ECA Digital Certificate prior to making any filing. This certificate works as the party’s electronic signature and can be obtained from VeriSign (through https://www.hsr.gov). The HSR website warns that this process can take up to four business days. To avoid delaying the filing, parties should apply for the ECA digital Certificate when they start preparing the notification package. Another security feature is that the notification package is encrypted when electronically filed. Also, once the package is received by FTC’s sever, several security measures, such as authentication via digital certificates, permanent ID tags, and secure storage, will come into play to maintain the security of the documents filed. The system will also automatically generate a return e-mail, informing the filing party of the receipt of the notification package.

There are several new concerns raised by this new filing method that any filing person should be aware of.
Currently, the new electronic filing system is limited by what formats of electronic files it can view. The HSR website has a list of all acceptable file formats. The filing party must use one of those acceptable formats when submitting their filing electronically. If an unacceptable format is used, the filing party will receive a notice of deficient filing, and this will delay the running of the mandatory waiting period.

The new electronic filing system has a restriction on the size of the file that can be submitted. According to the FTC, the limitation is high enough it is unlikely to be problematic for most filers. The new HSR website has information about the current maximum submission size. It is the filer’s responsibility to make sure the filing is within the size limitation. As technology improves, the maximum submission size should increase and become even less problematic.

The mandatory waiting period starts to run when the entire filing package is received by the FTC. For the electronic filing, this means when the delivery of the electronic filing is effected to the FTC server. The filing system usually sends the filer an automatic e-mail, notifying the filer of the receipt of the filing. If no e-mail is received, the party making the filing should confirm receipt of the filing with the FTC by e-mail at SRhelp@hsr.gov or by phone at 202-326-3100. Electronic filings made after 5:00 p.m. on a business day or at any time on any day other than a business day are considered effected on the next business day. If a party files the notification form electronically but submits the attachments in paper, the waiting period does not start until both the notification form and the attachments are received. Even though the automatic return e-mail shows the time the filing is received by the FTC server, such e-mail is not the official receipt of the filing. As with the traditional paper filing, a written notice will be sent to the parties to the transaction notifying them when the waiting period starts.

It is important to remember that as with any other computer server, the FTC server can become unavailable. If timing of the closing is sensitive for a particular transaction, parties should not wait till the last minute to electronically file the HSR notification and run the risk that the FTC server may not be available. This is particularly important in the next few months when the electronic filing system is still new. Parties should time the filing as if it would be done with the traditional paper filing method so that if there is problem with the electronic filing, they can always fall back on the traditional paper filing.

07-10-2006

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Womble Carlyle Sandridge & Rice, PLLC

Retaliation is in the Eye of the Beholder, Supreme Court Says
When Supreme Court Justices asked counsel in oral argument of Burlington Northern & Santa Fe Railway v. White whether an “adverse employment action” could be something as simple as not inviting an employee to lunch, the discussion seemed to highlight how petty some retaliation claims have become. It was, therefore, a surprise when a unanimous court concluded that virtually anything may be enough to form a basis for a federal court case.

Sheila White was the only woman working in the Maintenance of Way department at BNSF’s Tennessee Yard. She had been hired based in part on her previous experience operating forklifts, but her job title was “track laborer,” a physically demanding assignment encompassing a variety of tasks. From the beginning, White was assigned to operate the only forklift in the yard because another employee, Ellis, elected to forego forklift duties in order to receive higher per diem pay on a “mobile crew.” Forklift operation was White’s primary, but not sole, duty.

Less than three months after she began work, White complained that her foreman, Bill Joiner, “had repeatedly told her that women should not be working in the Maintenance of Way department” and had “made insulting and inappropriate remarks to her in front of her male colleagues” on two occasions. (Joiner admitted this was so; he had never supervised a woman and believed women should not work on a railroad.); Joiner was suspended for ten days and ordered to attend a sexual-harassment training session. When this outcome of her complaint was communicated to White, she was also informed that she was being removed from forklift duty because of co-worker complaints that “a more senior man should have the less arduous and cleaner job of forklift operator.”; Ellis, who had been one of the complainants, resumed the forklift duties because he was the only other employee qualified to do so. Two weeks later, White filed her first EEOC charge, claiming that the reassignment of her duties was both sex discrimination and retaliation for her complaint about her supervisor.

Two months thereafter, she filed a second retaliation charge with EEOC, asserting; she had been placed under “surveillance” with her daily activities being monitored. Three days after the EEOC mailed the charge to BNSF, White and her new foreman, Percy Sharkey, disagreed about whether White could ride with him on a trip to a work site in Arkansas; White insisted she was entitled to ride with Sharkey due to her seniority. Sharkey reported the incident to higher management, and White was immediately suspended without pay due to “insubordination.” White filed a grievance through her collective bargaining representative, resulting in her reinstatement and back pay for the 37 days she had been suspended. Notwithstanding this “make-whole” remedy, White filed a third retaliation charge with the EEOC. All of these events, from White’s first complaint to her third charge, occurred in less than four months.

A federal court jury in Tennessee awarded White $43,500.00 in compensatory damages, including $3,250 in medical expenses, for the retaliatory conduct of changing her job responsibilities and suspending her for 37 days without pay. A three-judge panel of the Sixth Circuit, in a 2-1 decision, reversed the result below and found in favor of BNSF, following which the full 13-judge court upheld the verdict below but strongly disagreed as to the appropriate standard to apply. The majority of the 13 judges, using the same test for retaliation as that which applies to a disparate treatment discrimination case, held that a plaintiff in a retaliation case must show an “adverse employment action,” defined as a “materially adverse change in the terms and conditions” of employment. BNSF sought Supreme Court review, pointing to conflicts between federal appellate courts concerning two issues:; (1); must action claimed to be retaliatory be “employment or workplace related,” and (2); how harmful must this action be to constitute retaliation?

The Court reached three sweeping conclusions:

Retaliation Claims Are Broader than Discrimination Claims. The provisions of Title VII which forbid retaliation aren’t limited to employment–related conduct.; Anything which might dissuade employees from complaining about discrimination is against the law; the two examples the Court gave are the FBI’s refusal to investigate death threats by a person toward an FBI agent and his wife, and filing false criminal charges against an employee. Cases dealing with employment discrimination in general are therefore not controlling. Anything which might chill employee complaints to EEOC is enough to trigger statutory protection.

“Harm” Doesn’t Always Involve Money. Although attempting to stress that “material” adversity is necessary as a basis for a retaliation claim, because courts must “filter out complaints attacking ‘the ordinary tribulations of the workplace,’” and warning that a discrimination charge creates no immunity from “those petty slights and minor annoyances that often take place at work”, the Court makes it clear that the circumstances will determine whether retaliation exists; “context matters.” Schedule changes are important to mothers of young children; excluding an employee from “a weekly training lunch” could deter that person from complaining about discrimination. But context focuses on the impact the retaliatory act would have on a reasonable person who is similarly situated to the plaintiff – which may mean that in the scheduling example the zone of comparison is limited to reasonable mothers of small children.

One Plus One Makes $43,500 – Plus Attorneys’ Fees and Costs. Given the first two conclusions, the train followed those tracks to its inevitable destination:; The reassignment of duties within a single job classification was “materially adverse,” and the fully-remedied suspension was nonetheless retaliatory because “White and her family had to live 37 days without income,” a time period including the Christmas holidays, and White “obtained treatment for her emotional distress.” Case closed.

There are numerous lessons to be learned from the White decision; not all of them are obvious:

Separate functional responsibilities. The pivotal figure in the White scenario was the department head in that facility, Roadmaster Marvin Brown. Brown, along with HR Manager Cathy McGee, interviewed White for her job. (The; Court simply stated that Brown hired White.); Brown assigned White to operate the; forklift. Brown received the complaint that White had been treated differently from male employees by Joiner, her foreman. (McGee investigated the complaint, but this isn’t mentioned by the Court.); Brown removed White from the forklift assignment and gave it back to Ellis. Brown received the complaints from White’s co-workers before White complained about Joiner but he did not remove White from the forklift until after her complaint. Brown was the target of White’s second charge, which contended he had placed her under surveillance and checked on her daily activities. The EEOC mailed a copy of the second charge to Brown three days before her suspension for insubordination. Brown made the determination that White had been insubordinate based on a statement from White’s new foreman, Sharkey. ; Brown was involved in every aspect of BNSF’s dealing with White for the entire period in question. This is a recipe for disaster. Allowing a manager who has been accused of discrimination to continue to deal with the accuser on a day-to-day basis cannot help but create tension and an environment in which further complaints will flourish. It is, therefore, critical that employers ensure that complaints are presented to an objective party.

Don’t weigh the merits of the underlying complaint. The White decision stresses that the court will look at the employer’s reaction to a complaint in determining whether the employer was out of bounds, without worrying about whether the complaint had merit. Complaints to the EEOC are presumed to be made in good faith; whether or not the employer believes a charge to be frivolous, it should be extremely careful in taking any adverse action, no matter how slight, which could later be argued to be retaliatory. While you may be able, somewhere down the road, to contend successfully that your reaction was warranted or that the charge was objectively meritless, such an approach can be guaranteed to produce yet more charges. The filing of a grievance under a union contract takes on a separate form of protection, that provided by §8(a)(4) of the National Labor Relations Act. Again, even a foolhardy grievance should be treated as serious, with the saving grace that the union may well adopt a more reasonable attitude toward the grievance than you would expect from an EEOC investigator. Finally, true “internal” complaints presented through a “chain of command” or through a special complaint procedure should be dealt with in a manner which is objectively fair.

Think of principle, not principal. It is readily apparent that the jury verdict in White’s favor, even when added to the 37 days of back pay her union got for her, would have cost BNSF far less than the attorney’s fees, expenses, time and trouble devoted to litigating this case through to the Supreme Court. BNSF probably believed this was a “no harm, no foul” case, and that the courts would conclude that White had not been injured. But the Supreme Court’s resolution of the issue means that non-monetary claims can be litigated, with the real exposure to the employer being the potential for paying the plaintiff’s attorney’s fees and costs in addition to paying to defend itself. Moreover, following the Civil Rights Act of 1991, all sorts of compensatory damages, expert witness fees and the like may be borne by a losing defendant. Add to that the prospect of potentially crippling litigation costs in cases where email and other electronic communications are at issue and you have a threatening landscape indeed. Look at the facts again:; The employee worries about getting her job back and “obtains treatment for emotional distress.” Apparently that’s all it takes – and anyone can claim worry and seek treatment. In practice, it may not be that easy, but plaintiffs’ attorneys have already begun to contend that the bar is so low as to be nonexistent.

CONCLUSION

We predict that the implications of the White decision will not be resolved for years to come. Trial courts may be reluctant to dismiss cases on summary judgment no matter how little is at stake. Unique factual situations will be dealt with case-by-case until a set of standards eventually emerges. Until that time, dealing with “squeaky wheels” in the workplace will entail extremely careful maintenance; policies, internal complaint procedures, disciplinary actions, evaluations, and every aspect of the employment relationship will need to be scrutinized to minimize exposure to retaliation claims. Supervisory training will take an even more crucial role in risk avoidance.

If you have further questions about this topic or related topics, please feel free to contact the Labor & Employment Practice Group at Womble Carlyle.

07-10-2006

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