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O'Melveny & Myers, LLP

Recent DOJ \"Gun-jumping\" Suit Spotlights Merger Agreement Terms
On April 13, 2006, the Department of Justice (DOJ) announced a $1.8 million settlement with QUALCOMM Incorporated and Flarion Technologies, Inc. for alleged ""gun jumping"" prior to the consummation of their merger in January 2006. Gun jumping is a violation of the Hart-Scott-Rodino (HSR) Act of 1976, which requires that combining entities observe a statutory waiting period before consummating a transaction in order to give federal antitrust agencies an opportunity to investigate and intervene, if necessary. Significantly, as the basis for the gun-jumping violation, the DOJ's complaint cites not only QUALCOMM's actual operational control of Flarion, but also the terms of the merger agreement. The case is a useful reminder that outside antitrust counsel should not only police parties' pre-merger conduct, but also should actively monitor the drafting of merger agreement control provisions.

The two wireless technology companies announced their intention to merge in July 2005 and, following a DOJ Second Request (extending the HSR waiting period), closed the deal in January 2006. The DOJ's complaint alleged that the merger agreement required Flarion to obtain QUALCOMM's consent before undertaking a variety of competitively significant business activities, such as presenting business proposals to customers. In addition, Flarion sought and followed QUALCOMM's guidance before undertaking routine activities, such as hiring employees.

Somewhat troubling is the inclusion of some standard merger covenants in the complaint's recitation of problematic merger agreement terms. For example, the complaint cited the requirement that the target must obtain the buyer's consent before entering into ""any material contract"" or before hiring any employee outside the ordinary course of business in accordance with its standard past practice. The complaint also cited the requirement that the target could not enter into any agreement to incur liabilities above a certain dollar amount or dispose or acquire intellectual property rights without the buyer's approval.

The inclusion of these standard merger terms in the DOJ's complaint should not be interpreted as a new enforcement posture. The DOJ alleged that QUALCOMM illegally exercised actual influence and control well beyond the power conferred by the literal terms of the merger agreement. Indeed, in a recent speech, FTC General Counsel William Blumenthal suggested that outside antitrust counsel may be acting with excessive caution regarding these types of merger agreement terms.

This case differs in some respects from the DOJ's last two gun-jumping actions against Computer Associates International in 2001 and Gemstar-TV Guide International in 2003. In those cases, the merging parties were direct competitors, and the DOJ alleged that the defendants' conduct harmed competition in contravention of Section 1 of the Sherman Act, in addition to violating the HSR Act. Here, the complaint notes that QUALCOMM and Flarion merely had ""competing technologies,"" and the DOJ only alleged a violation of the HSR Act, and not a harm to competition. Moreover, because QUALCOMM and Flarion self-reported and voluntarily amended portions of their merger agreement, the DOJ imposed only the $1.8 million civil fines (less than the $11,000 per day allowed by law) and did not impose an ongoing antitrust monitoring requirement or impose restrictions on future conduct. Thus, not only does this case demonstrate the need for outside counsel to actively participate in the drafting of target control covenants, it also shows how outside counsel can stand in good stead directing self-reporting and corrective conduct to minimize penalties in the event of inadvertent violations.

To read the DOJ press release, please see: http://www.usdoj.gov/atr/public/press_releases/2006/
215617.htm

To request additions or deletions to our mailing list, or to request further information about this Alert, please contact Jeff Chappelle at 213-430-6651 or jchappelle@omm.com. Please state from which e-mail list you would like to be removed (or, if you wish, all lists) and provide your e-mail address.


This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Darren Tucker, an O'Melveny counsel licensed to practice law in Washington, D.C., and Steve Chasin, an O'Melveny associate licensed to practice law in Washington, D.C. and California,
have contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

04-18-2006

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Ice Miller LLP

Ice Miller LLP Recognized Among \"Go-To Law Firms of the Top U.S. Companies\"
Ice Miller LLP Recognized Among ""Go-To Law Firms of the Top U.S. Companies""

Labor and Employment Practice Nominated by Fortune 500 Company

Indianapolis – Ice Miller LLP announced today they have been recognized by The American Lawyer magazine as one of the ""Go-To Law Firms of the Top U.S. Companies."" The Firm was nominated for its work in labor and employment law.

""The American Lawyer's recognition is particularly noteworthy since it's based on feedback from the largest Fortune 500 companies,"" stated Byron Myers, Co-Managing Partner, Ice Miller LLP. ""It is part of our Firm's strategy to develop close working partnerships between our clients and our attorneys to help address the clients' needs.""

The selection was based on survey data collected by The American Lawyer's sister publication, Corporate Counsel magazine for its annual ""Who Represents America's Biggest Companies"" issue. Representatives from Corporate Counsel asked General Counsel's from each of the top companies which outside law firms they turned to for assistance in litigation, corporate transactions, labor and employment, intellectual property, corporate governance, and the European Union. The winners will be profiled in a special section in the May 15, 2006 issue of Fortune magazine.

Ice Miller was among 648 law firms named in six practice areas. According to The American Lawyer, that is fewer than one half of one percent of all the firms in the United States and abroad.

The American Lawyer is one of the nation's leading monthly magazines for lawyers. The publication counts among its readers managing partners and partners at the largest law firms in the United States as well as General Counsel at the Fortune 500. Its mission is to cover the business of law as well as to profile some of the most successful law firms in the nation and their practices, biggest deals and cases.

Ice Miller's lawyers and business professionals, through their understanding of businesses, industries, and government entities, help simplify the complexities faced by its clients. Ice Miller is committed to helping its clients achieve their legal and business goals. The Firm has offices in Indianapolis, Indiana; Chicago, Illinois; Naperville, Illinois; and Washington, D.C. For additional information, visit them online at www.icemiller.com or call the Indianapolis headquarters at 317-236-2100.

04-18-2006

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Howrey, LLP

Mark D. Wegener Admitted to American College of Trial Lawyers
Mark D. Wegener has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in America.

The induction ceremony at which Mark D. Wegener became a fellow took place recently before an audience of 460 persons during the recent 2006 Spring Meeting of the College in Hollywood, FL.

Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only and only after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship.

Membership in the College cannot exceed one per cent of the total lawyer population of any state or province. There are currently approximately 5,500 members in the United States and Canada, including active Fellows, Emeritus Fellows, Judicial Fellows (those who ascended to the bench after their induction) and Honorary Fellows.

The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the legal profession. Qualified lawyers are called to Fellowship in the College from all branches of trial practice. They are carefully selected from among those who customarily represent plaintiffs in civil cases and those who customarily represent defendants, those who prosecute accused of crime and those who defend them. The College is thus able to speak with a balanced voice on important issues affecting the legal profession and the administration of justice.

Mark D. Wegener is a partner in the firm of Howrey LLP and has been practicing in the city for 33 years. The newly inducted Fellow is an alumnus of Rutgers Law School.

He is Vice Chairman of the firm, member of the Executive Committee and Co-Chairman of the Global Litigation practice group. He is one of Howrey’s most experienced and active trial lawyers and has been has been recognized in various publications and surveys for his trial and litigation work.

Mr. Wegener’s practice is typically focused on “high stakes” litigation for major corporations in the United States and globally. His work encompasses a broad array of substantive matters, with emphasis in the areas of intellectual property, complex commercial disputes, securities, antitrust, international and class actions.

He has handled jury and bench trials and appeals, for both plaintiffs and defendants, in federal and state courts throughout the United States, as well as domestic and international arbitrations.

Mr. Wegener is a frequent author and speaker on topics related to multi-jurisdictional disputes, securities enforcement and litigation, protection of intellectual property rights, jury trial strategy and tactics, and use of technology in the courtroom.

For further information please contact Dennis Maggi
American College of Trial Lawyers
Tel: 949-752-1801
Email: dmaggi@actl.com
www.actl.com

04-18-2006

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Goodwin Procter, LLP

Best Lawyers in America Ranks Nine Goodwin Procter Partners in Washington, DC as Leaders in Their Field
Goodwin Procter LLP, one of the nation’s leading law firms with offices in Boston, New York and Washington, DC, today announced that The Best Lawyers in America 2007 named nine of its Washington, DC partners as leaders in their field.

Following are the partners who were included in this prestigious listing and the category of law in which they were placed:

John D. Aldock, Bet-the-Company Litigation and Commercial Litigation
Robert T. Basseches, Maritime Law
David Booth Beers, Commercial Litigation
James R. Bieke, Environmental Law
David B. Cook, Maritime Law
Michael S. Giannotto, Mining Law
Thomas M. Hefferon, Banking Law
Lawrence J. Latto, Commercial Litigation
Stephen J. Pollak, Antitrust Law and Commercial Litigation
Attorneys named to The Best Lawyers in America directory are done so based solely on a vote of their peers. Results are compiled from confidential evaluations submitted by approximately 1.8 million of the top attorneys in the country.

04-18-2006

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McLane, Graf, Raulerson & Middleton Professional Association

McLane Attorney Sarah Knowlton Named Chair of State Bar Association\'s Section on Telecommunications, Energy and Utilities Law
Sarah Knowlton, a corporate and regulatory attorney with McLane, Graf, Raulerson & Middleton, Professional Association, has been re-elected chair of the New Hampshire State Bar Association's Section on Telecommunications, Energy and Utilities Law.

The Section provides a forum for members of the bar to discuss issues relating to the utility and telecommunications industries.

Ms. Knowlton has served as the Section's chair for the past two years. She has been recognized by Best Lawyers in America for 2006 and 2007 in the area of Energy Law.

Ms. Knowlton received her undergraduate degree, summa cum laude, from the University of Pennsylvania. She received her J.D. degree from Emory University School of Law. She can be reached at (603) 334-6928 or sarah.knowlton@mclane.com .

About the McLane Law Firm
Founded in 1919, the McLane Law Firm has grown to the largest full-service law firm in the state of New Hampshire, with offices in Manchester, Concord and Portsmouth. Driven by the firm's depth of sophisticated legal expertise and an unwavering commitment to client service, McLane has built collaborative and lasting relationships with a broad spectrum of domestic and international clients.

04-18-2006

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Jaeckle, Fleischmann & Mugel, LLP

John T. Kolaga To Present At Pro Bono Conference
Jaeckle Fleischmann & Mugel, LLP, a law firm with offices in Buffalo, Amherst and Rochester, New York and Phoenix, Arizona, announces that partner John T. Kolaga will present at a New York State Bar Association conference entitled ""Conference on Law Firm and In-House Counsel Pro Bono."" This conference takes place on Thursday, April 27, 2006 at the JP Morgan Chase Building, One Chase Square, 26th Floor, Rochester, NY from 9:30 a.m. to 5:30 p.m. For further information or to register visit www.nysba.org.

Mr. Kolaga is a partner in the Firm's Environmental practice group and serves as Chair of the Firm's Pro Bono committee. He has extensive experience in complex environmental litigation involving Superfund, the New York State Oil Spill Act, and common law and environmental insurance claims in state and federal courts. A member of the Leadership Buffalo Class of 2003, Mr. Kolaga practices from the Firm's Buffalo office.

Jaeckle Fleischmann & Mugel, LLP is a full-service business law firm with more than 80 legal professionals practicing from offices in Buffalo, Rochester and Amherst, NY and Phoenix, Arizona. For over a century the Firm's clients have included Fortune 500 companies, publicly held businesses, financial institutions, governmental entities, universities, traditional and high tech start ups, as well as individual business owners. The Firm's experienced attorneys and legal staff provide its clients with timely and efficient legal advice and litigation support related to Bankruptcy, Board Governance, Business and Corporate, Economic and Land Development, Employee Benefits, Environmental, Estates & Trusts, Healthcare, Immigration, International Trade, Labor & Employment, Litigation, Nonprofit, Patent & Intellectual Property, Real Estate, Securities/Finance and Tax matters. For more information, visit our website at www.jaeckle.com.

04-18-2006

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Bond, Schoeneck & King, LLC

New Department Chair And Deputy Chair Named At BS&K
Joseph Zagraniczny has been appointed Chair and Virginia C. Robbins has been appointed Deputy Chair of the firm's Real Estate, Environmental and Finance Department.

Mr. Zagraniczny has a full range of real property experience involving real estate development, zoning, real estate assessments, foreclosures, commercial leasing, and commercial financing. He is also Co-Chair of the firm's Business Restructuring, Creditors' Rights and Bankruptcy Practice Group. Mr. Zagraniczny has more than 25 years' experience representing Chapter 11 debtors and landlords, purchasers of distressed businesses, unsecured creditors and lenders in Chapter 7, 11 and 13 bankruptcy proceedings. He is listed in "The Best Lawyers in America®".

Mr. Zagraniczny received his B.A. degree from the State University of New York at Cortland in 1971 and his law degree, magna cum laude, from Syracuse University in 1978. Order of the Coif.

Ms. Robbins is Chair of the firm's Environmental Law Practice Group. She is experienced in advising clients on state and federal regulatory compliance issues, particularly in the areas of air and water pollution control and waste management. She has developed expertise in the requirements promulgated under the federal Clean Air Act Amendments of 1990. Ms. Robbins has counseled clients involved in power generation and development projects on the management of the environmental impact review process. She has also advised clients extensively on real estate transactions involving "Brownfields" redevelopment. Ms. Robbins is listed in The Best Lawyers in America®.

Ms. Robbins received her B.A. degree, magna cum laude, from Rutgers University in 1971; her law degree, with honors, from Rutgers University in 1986; and her Master's Degree from Middlebury College in 1972. Phi Beta Kappa.

04-17-2006

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