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Reed Smith

Leiderman & Fogelman Join Litigation Team in Reed Smith\'s San Francisco Office
Reed Smith, a top 20 international law firm, today announced the addition of Harvey Leiderman and Mark Fogelman as partners in the firm’s San Francisco office, effective July 1. Mr. Leiderman will join the firm’s Northern California Business Trial Group and Mr. Fogelman will join the Regulatory Litigation Group.

Both attorneys come to Reed Smith from the San Francisco office of Steefel Levitt & Weiss. Mr. Leiderman was formerly a member of the Board of Directors and a shareholder in the Litigation Department. He had been with Steefel since 1988, previously serving as its managing partner. Mr. Fogelman was also a shareholder in the Litigation Department and a member of the firm’s Board of Directors. He joined the firm in 1998, after spending 15 years with the California Public Utilities Commission, where he ended his tenure as the PUC’s Assistant General Counsel.

“Mr. Leiderman is a high profile leading litigator and business counselor on fiduciary matters in a hot and growing area involving large scale public and corporate pension funds. This is a uniquely expanding area and we know our clients will welcome this enhanced capability,” said David Thompson, managing partner of Reed Smith’s San Francisco office. “Mr. Fogelman has substantial experience in water and other environmental issues and experience before the CA PUC that we know many of our clients will benefit from as well. We could not be more pleased to welcome them to our ranks.”

Mr. Leiderman specializes in representing pension fund trustees, financial institutions, and private equity funds in fiduciary liability matters and complex business litigation. He serves as fiduciary and litigation counsel to some of the largest public pension funds in California, including the $6 billion Orange County Employees Retirement System, the newly-reformed San Diego City Employees Retirement System, and the boards of the retirement systems of Contra Costa, Santa Barbara, Marin, and Fresno counties. He also has substantial experience in advising corporate boards and in bankruptcy and commercial litigation.

“I am looking forward to being able to expand my pension fund practice at Reed Smith,” said Mr. Leiderman. “The firm’s outstanding tax and ERISA practices, together with its broad and diverse client base, provide an ideal platform from which to serve public agencies and public and private companies in tackling their complex pension issues. As the workforce matures, these issues are increasingly found on the front page of every business journal and newspaper in the country.” Mr. Leiderman received his B.A. from Case Western Reserve University in 1969 with Honors in Government Studies from The American University, Washington, D.C. and his J.D. from Columbia Law School in 1972.

Among his most recent and notable engagements, Mr. Leiderman served as Special Counsel and chief legal strategist to PeopleSoft, Inc. in its response to Oracle Corp.’s $10.5 billion hostile takeover bid. Other clients include national banking institutions, publicly traded technology companies, computer equipment manufacturers, industrial corporations and California agri-businesses.

Mr. Fogelman’s practice focuses on civil, regulatory and appellate litigation with particular emphasis on matters involving energy, telecommunications, water regulation and environmental enforcement issues. He has strong credentials as an appellate specialist and is a member of the prestigious California Academy of Appellate Lawyers (CAAL), as are five other members of Reed Smith’s Appellate Group. Paul D. Fogel, a San Francisco-based partner at Reed Smith, recently assumed the presidency of CAAL. James C. Martin, another Reed Smith partner, served as CAAL president in 2003.

A 1971 graduate of the University of Chicago School of Law, Mr. Fogelman handled many high-profile litigation and appellate matters at the California PUC.

Mr. Fogelman recently served as on of lead counsel in the coordinated antitrust case in which his California corporate clients alleged that El Paso Corporation manipulated prices during the California Energy Crisis – a case resulting in the largest antitrust settlement in California history. He also served as one of the lead counsel in the Hartwell case, in which the California Supreme Court confirmed the scope of immunity of PUC-regulated water utilities from Superior Court damage claims. Mr. Fogelman’s notable cases have included California's appeal of the AT&T Divestiture to the U.S. Supreme Court, the Eighth Circuit cases that overturned the FCC's seminal orders construing the Telecommunications Act of 1996, and the appeal and oral argument before the U.S. Supreme Court in Pacific Gas & Elec. Co. v. PUC, 475 U.S. 1 (1986). Mr. Fogelman served as lead counsel in the Mojave Pipeline Co. matter and successfully defended California against FERC assertions of jurisdiction in major cases in the Ninth and D.C. Circuits. In addition, he handled U.S. Supreme Court proceedings involving preemption of state trucking regulation and was staff co-counsel before the PUC in the Diablo Canyon rate case. Mr. Fogelman recently concluded a closely watched matter for Hillmar Dairies before the Regional Water Quality Control Board.

“I believe my energy and environmental litigation practice will flourish as a result of the much larger practice platform provided by Reed Smith,” Mr. Fogelman said. “I am also very enthusiastic about combining my appellate expertise with that of my distinguished colleagues in Reed Smith’s appellate practice which is widely recognized as one of the premier appellate practices nationwide.

“These kinds of high quality litigators are just what Reed Smith is looking for,” added Jack Nelson, statewide managing partner for Reed Smith’s four California offices. “As the firm continues to expand and win more high quality work from the country’s top?tier companies, more and more top notch attorneys from other firms are knocking on our door. This is good news for the firm and its clients.

06-26-2006

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Franklin, Weinrib, Rudell & Vassallo, P.C.

Releasing Film First in Theaters
Custom and practice in the motion picture industry; the prerogatives of motion picture distributors to choose video-first release over theater-first release; "implicit obligations" in a rights acquisition agreement; and the covenant of good faith and fair dealing, all flow together in LaHaye v. Goodneuz Group, LLC, 34 Med. L. Rptr. 1390 (9th Cir. 2006, unpublished).

The issue in LaHaye treated in this column is whether a producer/distributor is obligated to release a film initially in theaters as opposed to home video or another small-screen medium. In La Haye, the plaintiff did not obtain that contractual commitment and the producer chose not to distribute in theaters first. But by a 2-to-1 vote, a Ninth Circuit panel said the theater-first obligation could be implied in the parties' contract and reversed a grant of summary judgment in favor of the producer.

The LaHaye Decision
The contract in question was made in April 1997 between plaintiff Tim LaHaye and his co-author Jerry Jenkins with defendant Goodneuz Group. LaHaye and Jenkins had written a series of well-known Christian-themed books based on the authors' conception of the "Rapture" and its aftermath in accordance with the Book of Revelations. The authors knew that the principals of the Goodneuz Group, Joseph E. Goodman and C. Robert Neutz, had limited experience in film production when the contract was made. Under the agreement, the authors conveyed film production rights to Goodneuz in the first and second books in the series, entitled Left Behind and Tribulation Force.

Those rights included "all motion picture, television and allied rights in and to the [two novels]. . .for the development of one or more possible motion pictures." The conveyance embraced all forms of television, videocassette and videodisc rights, as well as interactive and multimedia rights. The District Court found that the agreement gave Goodneuz virtually "sole discretion ... to adapt, use, change and modify the story, characters, plot, theme, scenes and dialog as [Goodneuz] considered necessary." (The only exceptions were not in issue: adherence to the main themes of the two books, a PG-13 or less restrictive rating and no gratuitous swearing.) Moreover the contract explicitly conveyed all distribution rights and the right to assign the foregoing rights in the producer's discretion. The agreement did not specifically require the producer to distribute its production first in theaters, as opposed to video.

Before conveying the rights to Goodneuz, the authors and their agent, Rick Christian, met with Goodman and Neutz on several occasions. The authors and Christian also met with representatives of a video production company to whom they considered granting movie rights in Left Behind. The District Court found that the authors ultimately decided to grant the rights to Goodneuz because of its "shared theology" as well as Goodman's "expressed enthusiasm for the project." They did not rely upon "discussions of the style, scope or medium" of any future production.

Goodneuz assigned another production company, defendant Cloud Ten Productions, a 50% interest in its rights under the contract. Several months later, a principal of Cloud Ten informed the authors that he intended to release the film first as a video and then theatrically. The District Court found that, notwithstanding this disappointing news, the authors continued to cooperate with both production companies, periodically reviewing proposed treatments. The authors' agent cashed a check in the amount of $350,000 -- with which the producers exercised their option to make a movie of Left Behind -- and after deducting his commission, he distributed the funds to the authors. And in an interview, co-author Jenkins noted that Goodneuz had kept the authors "in the loop throughout the production process."

The authors were not pleased with the quality of the film, however, and chose to have their names removed from the film's credits. LaHaye subsequently sued the producers alleging, among other claims, that Goodneuz breached the implied covenant of good faith and fair dealing in their contract by failing to release the film initially in theaters. The District Court granted summary judgment to the defendants. On appeal to the Ninth Circuit, however, the grant of summary judgment on this claim and others was reversed. The Court held that the contract itself as well as surrounding circumstances required the reinstatement of the plaintiff's claim that defendants breached the covenant of good faith and fair dealing by failing to release the film initially in theaters.

First, the Court drew attention to one paragraph from the contract which sets forth the consideration the producer must pay for each type of production. That provision, noted the Court, "exclusively prescribes consideration for a 'theatrical motion picture' – not for any other kind of motion picture." Further, another provision provided that the purchase price set forth in the first provision pertained to a "theatrical motion picture." The Court held that these terms suggested "an implicit obligation to release the film theatrically."

In addition to the contractual terms, the Court reviewed the circumstances surrounding the making of the contract, interpreting the facts presented by the plaintiff in the light most favorable to him. It held that a material question was raised as to whether "the video-first distribution strategy breached the implied covenant." The Court said the facts suggested that distribution initially in theaters was what "the parties intended and expected the contract to require," if the option were exercised and the film produced.

Further, the Court held that a material question of fact was raised as to whether a theater-first release of a film was "so integral to film distribution that it was understandable not to include an express contractual term requiring a theater-first release, and whether the producers could have in good faith chosen to distribute the film initially on video." Lastly, the Court decided that parol evidence could be considered to explain the terms of the agreement.

First in Theaters or Video?
There are many reasons why the holders of underlying rights, like the authors of Left Behind, would prefer to see their work in theaters prior to a home video release. A film that is first released theatrically usually achieves greater recognition than one licensed initially for home video exhibition or television broadcast. The advertising, promotion and marketing expenditures for a theatrical release elevate public awareness and enhance the stature of those who wrote, acted in, produced, and directed it. Such promotional efforts also serve to increase the value of the film for subsequent exploitations, like home video and television. Some motion picture executives have referred to the theatrical release of a film as the primary means of advertising home video releases. Because the home video revenue from a film plays an increasingly greater role in its overall success, this factor can prove to be important.

Producers and creative talent associated with a film that is initially released in home video may see their bargaining power diminished in subsequent negotiations. Further, those entitled to contingent compensation derived from a picture that is not released theatrically would lose, in most instances, whatever slim chance they initially had to receive contingent payments. It is difficult to conceive of a film that, without an initial theatrical release, could generate enough gross proceeds to trigger a participation for anyone sharing in net proceeds. For these reasons, rights holders, creative talent in all categories, producers, and sometimes investors, would prefer to be associated with a film that has as its first exploitation a theatrical release.

Though mindful of the advantages of a theatrical release, producers and distributors still prefer having a choice as to how to exploit a project. Their ultimate decision could depend on a film's quality, marketing prospects, and other considerations that cannot be foreseen before the film is made. Accordingly, they will usually try to reserve the right to choose the medium for initial exploitation despite the objections of investors and creative talent.

If an agreement is to provide for a theatrical release, or for additional compensation triggered by such a release (e.g. bonuses based on the occurrence of a U.S. or foreign theatrical release), the meaning of the word "release" itself may come to the fore. The variables in such a definition may include the number of markets in which the film must be released, whether the release schedule includes a minimum number of "major" markets, and the amount of advertising monies that must be spent in connection with each. Releasing a film in major markets requires significant advertising expenditures; a full page advertisement in a large circulation newspaper is costly.

Further, even these criteria -- such as the one relating to advertising monies -- can be drafted at heightened levels of refinement. Advertising monies may include only third party media purchases, or may include the costs of creating the advertising. Another issue is whether advertising costs include internal charges by the distributor or only those paid to outside third parties.

Conclusion
The negotiations concerning a contractual obligation to release a film initially in theaters may pit a rights holder or actor who has the leverage to demand such a provision against a producer/distributor eager for as much flexibility as possible in connection with its handling of a film. The distributor who believes that the cost of releasing the film theatrically could outweigh its potential revenue benefits will want the right to license the project for initial exploitation by any means it chooses. However, the implications of being involved in a film that is not released in theaters may prove so unacceptable to rights holders and talent of a certain status that they will insist on a clause requiring initial release in theaters.

As in most agreements involving difficult and sensitive subjects, the respective leverage of the parties will play a decisive role in resolving the question. But as the La Haye decision demonstrates, deferring or ignoring the issue may prove to be costly.

06-23-2006

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Baron & Budd, P.C.

Baron & Budd, P.C. Attorney Russell Budd Elected to ATLA Board of Governors
Russell Budd, managing shareholder and co-founder of Baron & Budd, P.C., has been elected to serve on the Board of Governors of the Association of Trial Lawyers of America (ATLA). He is one of seven Texas attorneys elected by the Texas Trial Lawyers Association (TTLA) to serve a three-year term on the 148-member board.

Mr. Budd is widely recognized as one of the most prominent attorneys in the country representing victims of mesothelioma and other asbestos-related diseases. He has also served on the Board of Directors and Executive Committee of TTLA.

06-23-2006

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Foley & Lardner

Foley & Lardner LLP Names Chair of National Pro Bono Legal Services Committee
Foley & Lardner LLP announced today that Edmund T. Baxa Jr. has been named chair of the firm's national pro bono initiative. In this role, Baxa will lead Foley & Lardner's firmwide commitment to providing pro bono legal services to individuals, legal aid societies, civil rights organizations and nonprofit organizations that do not have the financial resources to retain legal counsel.

“Foley & Lardner has a longstanding commitment to good citizenship in the communities in which we practice and live by participating in community, civic and charitable activities,” said Ralf Boer, chairman and CEO of Foley & Lardner. “That commitment defines our values and the firm, and Ed's appointment to this important position, which reports directly to the chairman and CEO, reflects the dedication of our senior leadership to pro bono, community and charitable activities, and our drive to be a leader in our profession by giving back to our communities.”

Foley & Lardner has long been committed to the principle of pro bono service and logged more than 30,800 pro bono hours in 2005. The firm has provided significant representation in matters referred to it by public interest firms such as the AIDS Legal Clinic, Pro Bono Advocates, and Public Counsel. A substantial portion of these matters has included immigration and asylum law as well as civil and children's rights. Foley & Lardner was one of the founders of the Public Interest Law Initiative (PILI), an organization that facilitates the provision of pro bono services to legal aid organizations by law students and recent law school graduates. The firm also is a signatory to the American Bar Association Law Firm Challenge, which requires firms meet a goal of 60 hours per attorney per year devoted to pro bono matters.

Traditionally, the firm's pro bono work has centered around partners' involvement in litigation matters. Baxa plans to expand the firm's pro bono activities to include matters that impact attorneys working in intellectual property and corporate law. He also will create programs and incentives to attract associates and senior counsel to pro bono work. Baxa will expand the portion of the firm's orientation and training program devoted to pro bono and will continue to develop alliances with law school pro bono programs in order to share the firm's philosophy and resources.

Baxa is a member of the firm's Management Committee and is the managing partner of its Orlando office. He is a member of the Construction and the White Collar Defense & Corporate Compliance Practices. For the past 22 years, he has served as a guardian ad litem for abused and neglected children and received the Orange County Legal Aid Society Award of Excellence for his work in 2000. He also was an assistant public defender in Orange County, FL, and was co-director of the legal aid society at the Western State Psychiatric Hospital in Staunton, VA. Baxa is a graduate of the University of Virginia and its School of Law. Following his two-year tenure as senior law fellow at the University of Virginia's Center for Law and Medicine, he was awarded an LL.M.

He was introduced as the new chair of the national Pro Bono Legal Services Committee during Foley & Lardner Cares Week, a weeklong celebration of the firm's spirit of volunteerism, pro bono work and community service held June 19-23. The Week also was an opportunity for the firm's attorneys to educate themselves on how they can get involved in pro bono and community service projects.

Foley & Lardner LLP provides the full range of corporate legal counsel. Our attorneys understand today's most complex business issues, including corporate governance, securities enforcement, litigation, mergers and acquisitions, intellectual property counseling and litigation, outsourcing and information technology, labor and employment, and tax. The firm offers total solutions in the automotive, emerging technologies, energy, entertainment and media, financial services, food, golf and resort services, insurance, health care, life sciences, nanotechnology, and sports industries.

06-23-2006

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Fenwick & West, LLP

Public Company Directors Rank Fenwick & West Top Firm for Northern California
Fenwick & West was voted one of the top five corporate law firms in the San Francisco Bay Area by corporate directors of publicly traded companies. The ranking is based on responses of almost 1,400 directors at NASDAQ, NYSE or American Stock Exchange listed companies who participated in this year’s annual survey conducted by Corporate Board Member magazine.

Directors are asked to vote for top corporate law firms nationally and in each of the 25 largest metropolitan areas in the U.S. This is the first year Fenwick & West was ranked by the survey, reflecting the firm’s growing status as a “go to” firm for publicly traded companies in Silicon Valley, San Francisco and beyond.

06-23-2006

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Levenfeld Pearlstein, LLC

Levenfeld Pearlstein Bolsters Securities Group with Addition of David W. Porteous as Partner
Levenfeld Pearlstein LLC is pleased to announce the addition of David W. Porteous as a partner in its Litigation Practice and Securities Service Group.

Mr. Porteous, 37, comes to the firm from Gardner, Carton & Douglas LLP’s Chicago office, where he was an attorney in the Financial Markets Litigation Practice. Previously, he served as a staff attorney at the Securities and Exchange Commission’s Division of Enforcement in New York, and also worked under regional counsel for NASD regulation in Chicago and New Orleans.

“We are thrilled to welcome David to our securities team,"" said Aaron S. Kase, who leads the Securities Service Group at Levenfeld Pearlstein. ""His extensive experience litigating a broad array of securities matters and advising clients on regulatory compliance issues will make him a valuable addition to the group and the firm.”

Mr. Porteous concentrates his practice on complex disputes involving the securities, commodities, and futures markets in litigation, arbitration, enforcement proceedings and investigations, as well as advising broker-dealers and other financial institutions on compliance issues. He is a member of the National Society of Compliance Professionals, and frequently writes and speaks on regulatory and compliance issues.

Mr. Porteous earned his Bachelor of Arts degree from the University of Wisconsin-Madison and his juris doctor from Tulane University Law School.

06-23-2006

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Freshfields Bruckhaus Deringer

International ACT group appoints new leaders
David Aitman and Helmut Bergmann have been appointed joint practice group leaders (PGLs) for international law firm Freshfields Bruckhaus Deringer's leading antitrust, competition and trade (ACT) group.

They take over on 1 August 2006 from Frank Montag and Deirdre Trapp, who have led the group since August 2000. Under Frank and Deirdre's leadership, the group has achieved enormous success in both professional and business terms. The firm was recently ranked as having the top international competition law practice for the third consecutive year in PLC Cross Border magazine's 'Competition Super League'; in April it was named Global Competition Law Firm of the Year 2006 for the second consecutive year in the Who's Who Legal Awards; and in January it topped this year's 'GCR 100' international survey for preferred law firms according to corporate counsel, compiled by Global Competition Review.

Commenting on the new appointments, outgoing joint PGL Deirdre Trapp said, 'The last six years have been immensely rewarding. Our group has been honoured by the trust and loyalty of our clients on their most challenging mandates and has repeatedly been voted the world's best antitrust team. This is a testimony to the terrific team of people I have had the privilege to lead since 2000. It has been an unforgettable experience for me personally and I know that in David and Helmut we will be leaving the group in great hands'.

Frank Montag added, 'I have really enjoyed the last six years at the helm of our competition group, in particular as we ventured further into international waters by establishing our practices in Washington and Asia. In doing so we are meeting the growing requirements of our international clients by providing a global antitrust service from a single, integrated firm. It's been a pleasure working with Deirdre and the other members of the group. I am certain that David and Helmut will be great leaders, and the group will continue to maintain its pre-eminent position under their leadership.'

Profiles
David Aitman
David Aitman has practised in London and Brussels since 1980. David established the competition department at Denton Hall in the early 1980s and joined Freshfields Bruckhaus Deringer as a partner in July 2001. He has managed Freshfields' London ACT department since May 2002. David has advised in all areas of competition law, specialising in advice to the media and telecoms companies, to regulated industries and in the consumer products and retail sectors. Recent experience includes advising O2 on its merger with Telefonica, Industri Kapital in its disposal of Dyno Nobel, Rockware in its acquisition of Rexam's UK glass business and English Welsh and Scottish Railway Limited in acquiring Marcroft: advising on a series of joint ventures in the media sector (including establishing joint ventures between Sony, Disney and others); advising on sector inquiries in the financial services, retail and advertising sectors; acting on price control cases in the water and airports sectors; and advising on major cartel cases (including in the steel sector and for the Football Association in the replica football kit cartel). David has published and lectured frequently on European competition law. He is the author of the chapter in Butterworth's Encyclopaedia of Competition Law on licensing and intellectual property; of the chapter in Bellamy & Child on telecommunications; of the chapter in Practical Intellectual Competition Law on competition law; and of the annual reports on competition law in the media sector in the Yearbook of Media Law (1995 - 2001).

Helmut Bergmann
Dr. Helmut Bergmann has been a partner of Freshfields Bruckhaus Deringer since 1996 and managing partner of the firm's Berlin office since 1998. He specialises in European and German competition law with a special focus on international mergers and acquisitions, including multi-jurisdictional filings. He has particular experience in the healthcare, chemicals, consumer products, automotive, media, telecommunications, software, financial services, and energy sectors. His recent work includes advising Hoffmann-La Roche on the acquisitions of Disetronic and of Chugai; Smiths Medical in respect of its acquisition of Medex; Fresenius on its acquisition of Clinico; Dow Chemical on its merger with Union Carbide; Lanxess on its divestiture program; Mars on the acquisition of Doane Petcare; Sumitomo Electric on its acquisition of VW Bordnetze GmbH; Advent on the acquisition of RWE Solutions; Apax Partners, Goldman Sachs and Providence on the acquisition of Deutsche Telekom's TV cable business; and advising on major cartel cases. Helmut was born in Nürnberg in 1961. He received his legal education at the universities of Würzburg, Geneva and Tübingen. His international experience includes working as a ""stagiaire"" with the European Commission's DG Competition and spending one year with a US law firm in New York. He is author and co-author of several books and articles on antitrust law and he frequently lectures on competition law topics.

Notes for editors
Freshfields Bruckhaus Deringer* is a leading international law firm providing a comprehensive worldwide service to national and multinational corporations, financial institutions and governments.

The firm's antitrust, competition and trade group practice comprises 245 specialists in Europe, the US and Asia. The group's lawyers advise on a complete range of competition/antitrust, regulatory and trade issues including merger control, licensing and distribution, restrictive practices, market dominance, state aid, cartel investigations, liberalisation, privatisation, public procurement and trade, including WTO matters. The group has a substantial litigation practice, regularly appearing in the European and national courts on EU law, competition and trade cases.

06-23-2006

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