Law Firm News

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Law Firm News

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Smith, Gambrell & Russell, LLP

SGR ATTORNEY ELECTED AS CHAIR OF THE REAL PROPERTY LAW SECTION
Smith, Gambrell & Russell partner David Burge was elected as the Georgia State Bar’s Chair of the Real Property Law Section. He was also the moderator of the Real Property Law Institute that was held on May 4-6 in Sandestin, Florida.

The attorneys who comprise the Real Property Law Section practice in the areas of commercial and residential real estate. The section has almost 2,500 attorneys and is the State Bar’s largest section. The Real Property Law Section monitors and proposes legislative issues. It also sponsors six annual legal seminars with the ICLE and promotes continuing education of the bar in this field.

Mr. Burge is partner in SGR’s Real Estate practice. His area of expertise is in commercial real estate lending transactions, capital markets real estate transactions and general real estate sale, purchase and leasing transactions. His clients include Wachovia Bank, Flag Bank and College Partners, Inc. He previously served as Chairman of the Real Estate Section of the Atlanta Bar Association and is a member the Urban Land Institute. Mr. Burge earned his B.A., magna cum laude, from Vanderbilt University and he earned his J.D. degree, with honors, from the University of North Carolina.

07-07-2006

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Milbank, Tweed, Hadley & McCloy LLP

MILBANK WINS DISMISSAL OF SECURITIES ACTION IN PRECEDENT-SETTING MUTUAL FUND EXCESSIVE FEE SUIT
In a case that is certain to have widespread industry impact, one of the largest mutual fund excessive fee securities actions ever filed was voluntarily dismissed by the plaintiffs in their case against American Century Investment Management, Inc., the international law firm Milbank, Tweed, Hadley & McCloy, LLP announced today.

Milbank represented American Century in the suit and has represented the company for more than 15 years. The Milbank litigation team included New York-based partners James N. Benedict, Sean M. Murphy and Andrew E. Tomback, and New York-based associates Michael A. Berg, Ryan Miller, Mia Korot, Andrew W. Robertson and Eric Fishman.

Following the dismissal, Mr. Benedict stated, “The result here is nothing short of a complete vindication for American Century and its mutual fund board. The case was the first legal test of plaintiffs’ new legal theories challenging the level of mutual fund fees.” Mr. Benedict added, “The plaintiffs failed miserably. Hopefully, the result here will send a loud and clear message to the plaintiffs bar.”

Mr. Murphy added, “The dismissal could have far reaching effects on other pending mutual fund law suits because the American Century case was one of 12 copy-cat cases filed against different mutual fund advisors, and the first to be resolved. We are currently defending some of the largest investment advisors in the United States in similar actions challenging investment advisory fees.”

Case background:
The case, Baker v. American Century Investment Mgmt., Inc., No. 04-4039-CV-S-ODS (W.D. Mo.), alleged that American Century Investment Management charged excessive management fees to three of its largest mutual funds in violation of Section 36(b) of the Investment Company Act of 1940. The action challenged over $1 billion in fees paid by the funds from March 2003 through July 2006, and was scheduled to go to trial on Monday, August 7, 2006 before United States District Court Judge Ortrie D. Smith in the United States District Court for the Western District of Missouri.

One of the plaintiffs’ main allegations in the case was that American Century charged lower prices to institutional clients than to its retail mutual funds. Significantly, Milbank won a key pre-trial ruling that any evidence relating to institutional accounts was irrelevant and therefore inadmissible at trial.

On July 31, 2006, one week before trial, plaintiffs stipulated to the dismissal of the action with prejudice. The Stipulation, signed by plaintiffs’ counsel, states that after prosecuting the action, “it is likely that the Defendant will prevail on most of [the relevant] issues,” and that “if the case were tried, the Court would likely determine that the compensation Defendant received for managing the Funds was fair and reasonable.”

Consequently, the Stipulation states, “Plaintiffs have concluded that the Defendant has not violated its fiduciary duties under Section 36(b) of the Investment Company Act of 1940.” The court ordered the case dismissed with prejudice.

The team of Milbank litigators represented American Century through two-and-a-half years of intense litigation, including a large-scale document production, depositions of dozens of senior American Century personnel and the independent directors of the mutual funds, expert discovery involving eleven industry and economic experts, and extensive briefing on evidentiary and procedural issues.

07-07-2006

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Ruskin, Moscou & Faltischek, PC

Supreme Court of Nassau County Decides In Favor of RMF Client, Chase Partners, in Proposed Rockville Centre Development Plan
Ruskin Moscou Faltischek, P.C. announced today that its client, Chase Partners, LLC, the proponent of a multi-family residential development in the Village of Rockville Centre, has received a favorable decision from the Supreme Court, Nassau County. The decision has groundbreaking implications for land use planning and development on Long Island.

The Court held that proposed amendments to the local zoning ordinance that prohibited residential growth in the downtown area were adopted in bad faith and, in an attempt to defeat Chase’s particular proposal, would not apply to the project proposed by Chase. The issues related to the Chase Partners project have generated considerable controversy within the Village over the last several years.

“The decisions are a stunning victory for the development of commuter housing in downtown areas, a much-needed component for the continued growth of the region,” said Michael L. Faltischek, lead counsel for Chase Partners, LLC and a senior partner at the law firm Ruskin Moscou Faltischek, P.C. “It is a vindication of the decision rendered by the Nassau County Planning Commission nearly two years ago and fosters the position advocated by leading planning groups of the region, including the Long Island Association, the Long Island Partnership for Housing, Vision Long Island and the Neighborhood Network.”

Chase Partners will be permitted to proceed with the project as originally designed, which called for the construction of 349 luxury rental units in what is currently an underutilized industrial area of the Village. The industrial area is within walking distance of the Rockville Centre train station, thereby providing future residents with easy access to public transportation within a suburban community setting. The project was awarded a Smart Growth Award by Vision Long Island and the Village had previously been awarded a Smart Growth Award for legislation that fostered residential development in its downtown center.

However, by allowing the project to proceed without further interference, the Court has also supported the New York State Brownfield Cleanup Program, which encourages volunteers to clean up contaminated sites. The industrial site selected by Chase Partners currently has contamination and could only be cleaned up expeditiously through the voluntary Brownfield Cleanup Program if the development proposed by Chase Partners was allowed to proceed. By delaying site plan approval of the project over these many years, the Village stalled the ability to proceed with a clean-up, since only a volunteer would be eligible for the program and any volunteer could not expend the many millions of dollars required to affect the clean-up without certainty as to its ability to proceed with the project contemplated.

“I am extremely pleased by the decision of the Court,” said Clark Hamilton, the principal of Chase Partners. “When we first met with the Village, we laid out a plan that would provide for redevelopment of an industrial area that impacted the Village with heavy traffic, trucks, noise and an existing contaminated site condition. Our development will clean up and significantly enhance the property, add a much-needed component to the housing stock of both the Village and the region, afford people alternatives in housing options, generate new tax revenues for various municipalities and school districts and stands as encouragement to developers that good projects that address local and regional needs can overcome unsubstantiated and unreasonable local opposition.”

In accordance with the Court’s order, the Village is required to issue building permits for the project upon completion of the environmental clean up under the Brownfield Cleanup Program. The Village Planning Board can no longer interfere with the process, nor can the Village Board of Trustees, by the adoption of new legislation, prevent this development from proceeding. The result represents a breakthrough in the development logjam, which has traditionally been created as a result of an ever-expanding not-in-my neighborhood mentality.

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. Cornerstone groups in all major practice areas of the law are represented at the firm. Through its independent arm, Island Strategies, lobbying services are provided at all governmental levels. Clients include large and mid-sized corporations, including Fortune 500 companies, privately held businesses, institutions and individuals.

07-07-2006

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McDermott Will & Emery

MCDERMOTT HELPS DEGUSSA INCREASE ITS LEAD IN THE SAP BUSINESS
McDermott Will & Emery represented Degussa AG in its acquisition of the superabsorbent polymers (SAP) business of The Dow Chemical Company, strengthening Degussa’s position as the leading SAP manufacturer in the world. The Dow SAP business acquired by Degussa includes its manufacturing facility located in Rheinmünster, Germany, worldwide customer contracts and intellectual property rights.

McDermott Will & Emery managed the global merger notification process, which included obtaining approval from the European Commission. The transaction was notified to the European Commission under Article 4(5) as the merger would have required notification in seven Member States. The transaction was also subject to approval in Brazil and Turkey and was reviewed by the FTC.

The competition team was led by Clive Stanbrook QC (Brussels) and Joel Grosberg (Washington). Thomas Sauermilch (New York) led the global transaction for Degussa and advised on the corporate aspects of the acquisition. McDermott Will & Emery fielded a multi- disciplinary team out of Brussels, London, Düsseldorf, New York and Chicago.

07-07-2006

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Jenner & Block LLP

Third Circuit Holds That Class Certification Orders Must Contain a 'Readily Discernible, Clear, and Complete' List of Issues, Claims, or Defenses to be Treated on a Classwide Basis
The United States Court of Appeals for the Third Circuit recently decided a matter of first impression in federal class certification law -- what federal district courts must do to comply with Federal Rule of Civil Procedure 23(c)(1)(B) when certifying a class action.

07-07-2006

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Jenner & Block LLP

Supreme Court Broadens Anti-Retaliation Standards
Historically, the Courts of Appeals have been split on whether an employee must demonstrate that a term or condition of employment has been adversely impacted to establish a claim of retaliation. On June 22, 2006, the United States Supreme Court decided the issue, holding that while an employee must meet that threshold to state an actionable claim for discrimination under Title VII, to state an actionable claim of retaliation, an employee need only show that the challenged action is ""materially adverse."" See Burlington Northern & Sante Fe Railway Co. v. White, No. 05-259, 2006 WL 1698953 (2006). In doing so, the Court clarified that the scope of actions that trigger Title VII's anti-retaliation provisions are broader than those that trigger Title VII's non-discrimination provisions.

With regard to what constitutes a ""materially adverse"" action that would support a claim for retaliation, the Court stated that the definition would include any action that may ""dissuade"" a reasonable worker from making or supporting a charge of discrimination."" The Court clarified that the ""materiality"" requirement prevents petty slights and minor annoyances from supporting claims of retaliation. The Court also clarified that the reasonable person standard applies when determining if an action is materially adverse, to eliminate uncertainties and unfair discrepancies that can occur when courts must ascertain a plaintiff's subjective feelings. In addition, the Court stated that whether a challenged action may support a claim of retaliation will depend on the context of the situation, whereby a schedule change or a supervisor's refusal to invite an employee to lunch may constitute materially adverse actions in some cases, but not in others. The Court explained that the schedule change may be sufficiently adverse in the case of a ""young mother with school age children,"" and that exclusion from lunch may support a claim of retaliation if the employee is not invited to ""a weekly training lunch that contributes significantly to the employee's professional advancement."" Prior to this decision, some courts had held that actions such as schedule changes and exclusions from lunches or meetings were insufficient to support a claim of retaliation.

The Supreme Court remanded the White case for a determination of whether reassignment of duties and a 37-day suspension constituted materially adverse actions under the facts of the case, indicating that such determinations must be made by a jury.

07-07-2006

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Jenner & Block LLP

NLRB Rules That Mandatory Arbitration Clause Constituted Unfair Labor Practice
On June 8, 2006, the National Labor Relations Board (""NLRB"") held that an employer committed an unfair labor practice when it adopted a mandatory arbitration provision that covered ""all disputes relating to or arising out of an employee's employment with [the company] . . . [including] any . . . legal or equitable claims and causes of action recognized by local, state or federal law or regulations."" See U-Haul Co. of California, (NLRB 6/8/2006). The NLRB explained that without an exception for charges filed with administrative agencies, an employee could reasonably believe that she was precluded from filing an unfair labor practice charge with the NLRB, and instead had to pursue such claims through the company's mandatory arbitration procedures. In reaching this determination, the NLRB rejected the company's defense that it committed no unfair labor practice because the cover memo sent to employees announcing the policy explained that arbitration was limited to disputes that a court of law would be authorized to entertain.

In the same decision, the NLRB held that a provision in the company's employee handbook stating that employees could raise complaints with their supervisors without union involvement, and that employees were ""expected to see [the company's president]"" if their ""supervisor cannot resolve [their] problems"" was not unlawful. The NLRB found that such language could not reasonably be interpreted as requiring employees to resolve their workplace problems through internal measures rather than exercising their rights under the National Labor Relations Act. The NLRB reasoned that the language invited, but did not require, employees to raise workplace problems internally. The NLRB further reasoned that the handbook language did not foreclose employees from raising issues with their union, even if employees felt that they were required to raise issues internally.

07-07-2006

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