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O'Melveny & Myers, LLP

O'Melveny Scores New Uruguay Arbitration Victory
An O'Melveny-New York team led by Benno Kimmelman and Dana MacGrath prevailed on behalf of a subsidiary of JP Morgan Chase & Co. on both a motion and petition to compel arbitration before the United States District Court for the Southern District of New York (Pauley, J.). On January 24, 2006, the New York federal court ordered the Republic of Uruguay, Banco Comercial S.A. ("Banco Comercial"), and the Banco Comercial S.A. Fund for the Recovery of Banking Assets (the "Fund") to submit any claims they may wish to assert to arbitration in New York. Download the Memorandum and Order.

The New York district court order arises from a continuing dispute between the parties to an agreement under which Chemical Overseas Holdings, Inc. (a subsidiary of JP Morgan Chase & Co.) and two other foreign shareholders of Banco Comercial invested collectively US$100 million in the bank. The first dispute under this agreement resulted in a unanimous ICC arbitration award against the Republic of Uruguay and in favor of the foreign shareholders. Immediately after the ICC award was issued, the Republic of Uruguay, Banco Comercial, and the Fund filed a lawsuit in New York against the foreign shareholders and the former foreign directors of Banco Comercial for US$700 million and also commenced legal proceedings in Uruguay.

In response to this litigation, the foreign shareholders and former foreign directors of Banco Comercial filed a new ICC arbitration against the Republic of Uruguay, Banco Comercial, and the Fund. In the new arbitration, the foreign shareholders and former foreign directors asserted several claims, including claims that the Republic of Uruguay, Banco Comercial, and the Fund had violated the arbitration clause and release in the agreement by commencing litigation.

After filing the new arbitration, Chemical Overseas Holdings, Inc. removed the New York state court lawsuit filed by the Republic of Uruguay, Banco Comercial, and the Fund. Immediately thereafter, Chemical Overseas and other foreign shareholders and former foreign directors of Banco Comercial filed a motion to compel arbitration of all claims asserted by the Republic of Uruguay, Banco Comercial, and the Fund in their New York lawsuit. They also filed a related petition to compel arbitration in New York federal court arguing that any purported claims that the Republic of Uruguay, Banco Comercial, or the Fund may seek to assert against the foreign shareholders in New York, Uruguay, or elsewhere are subject to the arbitration clause in the agreement.

In both proceedings, Chemical Overseas argued that the language of the arbitration clause in the agreement required the district court to refer any issues of arbitrability to the arbitrators. While acknowledging that issues of arbitrability are presumptively for a court to decide, Chemical Overseas argued that where, as here, there is "clear and unmistakable evidence" in the arbitration agreement that the parties agreed to submit questions of arbitrability to the arbitrators, the court should refer the matter to arbitration under Section 206 of the Federal Arbitration Act.

In opposition to the motion and petition to compel arbitration, the Republic of Uruguay, Banco Comercial, and the Fund argued that their claims were not subject to arbitration and also argued that the New York court, rather than the arbitral tribunal, should decide whether their claims are arbitrable.

Judge Pauley rejected the argument made by the Republic of Uruguay, Banco Comercial, and the Fund. The court explained that "[b]ecause the Arbitration Clause provides clear and unmistakable evidence that the parties agreed to submit issues of arbitrability to an arbitral forum, this Court must enforce that agreement." Accordingly, Judge Pauley granted both the motion and petition to compel arbitration and stayed the New York lawsuit filed by the Republic of Uruguay, Banco Comercial, and the Fund.

The New York attorneys who worked on the proceedings to compel arbitration included Benno Kimmelman, Dana MacGrath, Nicole Duclos, Stephanie Sarzana, Melinda McLellan, Bonnie Schriefer, Monte Albers de Leon, Daniel Tan, and Kathyanne Cohen.


01-27-2006

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Nelson Mullins Riley & Scarborough LLP

Hill Honored for Distinguished Public Service by S.C. Bar
GREENVILLE, S.C. (Jan. 27) – Leo H. Hill of Nelson Mullins Riley & Scarborough in Greenville was named the 2005 DuRant Distinguished Public Service Award by the S.C. Bar Foundation Board of Directors.

Mr. Hill along with the Honorable Ernest A. Finney Jr. were honored on Friday, Jan. 27 in Charleston, S.C., at the Bar’s annual convention.

Considered the most prestigious statewide recognition that is bestowed upon an attorney, the DuRant Award recipient is nominated and selected by his or her professional peers. The Foundation established the award in memory of Charlton DuRant, a well-known Manning attorney who served as state senator and special associate justice of the S.C. Supreme Court.

"This award is a great compliment to the service Leo has given to the South Carolina Bar through out his career. Leo has been a wonderful addition to our law Firm and we congratulate him on this worthy recognition," said Marvin Quattlebaum, managing partner of the Firm's Greenville office.

Mr. Hill is of counsel to Nelson Mullins and practices in the areas of government relations, utility regulation, construction and environmental law, litigation, administrative law and alternative dispute resolution.

Prominently affiliated with numerous civic organizations, Mr. Hill was instrumental in the formation of the Legal Services Agencies (now known statewide as the S.C. Center for Equal Justice), the Bail Bond Reform Act, the South Carolina Public Defender System, the Lawyers Referral Service, the South Carolina Bar Foundation, and the Government Law Section of the South Carolina Bar.

Mr. Hill is a member of the American Bar Association, the American Judicature Society, the Association of Trial Lawyers of America, the Greenville County Bar Association and the South Carolina Trial Lawyers Association. Mr. Hill is a fellow of the South Carolina Bar Foundation and a member of the Water and Pollution Control Association of South Carolina. He has been a member of the National Institute of Municipal Law Officers, the Judicial Conference for the Fourth Circuit Court of Appeals, the South Carolina Judicial Council and the Municipal Attorneys Association. He served as president of the South Carolina Bar from 1968-69. In 1991, he received a Distinguished Service Award from the American Arbitration Association. In 1993, he was awarded the Compleat Lawyer Award from the University of South Carolina School of Law and the Tommy Thomason Award from the Greenville County Bar Association.

Mr. Hill is the author of numerous publications and presentations on mediation, construction law, governmental law, civil rights, and the duties and functions of political bodies. Among these are Doing the Public’s Business, with Gary Hill; "Mediation and Why It Works," Outlook 2001; "When the Owner Says ‘Let’s Build a Project’," "The Troubled Construction Project -- A Case Study," South Carolina Bar Association, Continuing Legal Education Division, 1991; "Construction Grants Program -- The Grantee’s Perspective," South Carolina Bar Association, Continuing Legal Education Division, 1983; "The Bill of Rights and Recent U.S. Supreme Court Decisions," Greenville Rotary Club, 1969. He is the author of a volume of poetry entitled, A Few Lines. He has been listed in every edition of Best Lawyers in America since 1992, and he is named to Who’s Who in American Law and the Bar Register of Preeminent Lawyers 2005.

In 1952, Mr. Hill earned a Juris Doctor from the University of South Carolina School of Law. He earned a Bachelor of Arts from Erskine College in 1949. He married Grace Lucile Garrison in 1954 and they have three children, Lillian H. Pinto, Howard Hill and Judge David Garrison Hill, and six grandchildren.

Nelson Mullins, established in 1897, has more than 360 attorneys practicing from offices in Atlanta, Charleston, Charlotte, Columbia, Greenville, Myrtle Beach, Raleigh, Washington D.C., and Winston-Salem. For more information on the Firm, go to www.nelsonmullins.com, or call (803) 255-9794.


01-27-2006

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Mayer Brown LLP

Seventh Circuit Allows Removal of Pre-CAFA Class Action
27 January 2006, Chicago - The United States Court of Appeals for the Seventh Circuit has for the first time permitted removal from state to federal court of a class action lawsuit that was originally filed prior to the enactment of the Class Action Fairness Act of 2005 ("CAFA"). The ruling, announced in an opinion by Judge Frank H. Easterbrook, came in response to a petition filed by Mayer, Brown, Rowe & Maw LLP and Vinson & Elkins LLP on behalf of Liberty Mutual Insurance Company.

The case involves a consumer fraud class action filed against Liberty Mutual in state court in Chicago in 2000, long before CAFA's effective date of February 18, 2005. That statute by its terms applies only to cases "commenced" after that date. In the summer of 2005 the state court judge certified a nationwide class of plaintiffs and, without trial, entered a default judgment in favor of the class. The only remaining issue was determination of the nationwide class damages, potentially in the hundreds of millions of dollars.

In response to broad changes in the class definition that had been proposed by the plaintiffs and accepted by the state court judge, Liberty Mutual removed the case to federal court in Chicago under CAFA, arguing that a new action had been commenced by these changes. Citing three previous Seventh Circuit opinions that had ordered remand of CAFA removals when the underlying case had been filed before the CAFA effective date, the federal district court remanded the case back to state court.

On appeal the Seventh Circuit reversed and ordered that the case remain in federal court. The appellate panel held that removal was proper because "a novel claim tacked on to an existing case commences new litigation for purposes of the Class Action Fairness Act." The Seventh Circuit went on to observe that "the conduct of plaintiffs and the state judge in this litigation . . . illustrates why Congress enacted the Class Action Fairness Act." The opinion specifically directed that the federal district court "need not (and should not) give any weight to the state judge's order of default and the scope of the class certification" and that "these and all other questions are open to an independent resolution in the federal forum."

Mayer, Brown, Rowe & Maw LLP lawyers working on the case included Steven M. Shapiro, Howard J. Roin, Joel D. Bertocchi, John R. Schmidt and Stephen J. Kane. The case is Knudsen v. Liberty Mutual Insurance Co., No. 05-8037 (January 27, 2006).

01-27-2006

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Mayer Brown LLP

Mayer, Brown, Rowe & Maw LLP advises Cosgrave on its first, 120 million Euros UK acquisition
27 January 2006 - Mayer, Brown, Rowe & Maw's London real estate team, led by partner Gary Bownes, has advised Cosgrave Property Group, one of Ireland's leading private property investors, on its inaugural acquisition in the UK and its first outside of Ireland. It has acquired two large retail blocks in Birmingham city centre, known as Caxtongate I & II from Land Securities, for a total of 120 million Euros. The transaction was completed on 16 January, 2006.

Caxtongate was developed by Land Securities to create an upmarket fashion destination within Birmingham city centre. The development is situated on the busiest pedestrian location in Birmingham city centre, close to the recently opened Bullring Shopping Centre and opposite New Street train station.

01-27-2006

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Klett, Rooney, Lieber & Schorling, P.C.

Why Every Company Should Conduct Key Exit Interviews'
An article by Joseph Dougherty on the importance for every company to conduct exit interviews of key employees to prevent the loss of confidential information and trade secrets.

01-27-2006

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Kilpatrick Stockton LLP

BLUE RIBBON COMMISSION PUBLISHES RECOMMENDATIONS TO REDUCE RISK OF DIRECTORS’ PERSONAL LIABILITY
ATLANTA (January 27) – The Blue Ribbon Commission of the National Association of Corporate Directors (NACD) has published its Report on “Director Liability: Myths, Realities, and Prevention.” Kilpatrick Stockton Partner Neil Falis was a member of the prestigious 23-person Commission, and an active participant in preparing the Report.
“The Commission’s members included directors, general counsel and executive officers of some of the largest companies in the country, many of whom are leaders in the corporate governance arena,” said Mr. Falis. “As a result, the Report reflects the perspectives of people who grapple with director liability issues on a daily basis.”
The Commission’s report separates myths from realities concerning directors’ liability exposure, and recommends a series of best practices for directors to limit that exposure.
The NACD established the Commission to assess current trends in litigation against directors, and to consider more generally recent developments in stockholder litigation, its impact on the fiduciary duties of directors at both the federal and state levels, and to recommend practices that may allow directors to move beyond compliance to focus on creating value for stockholders.
Mr. Falis added, “The Commission’s Report is unparalleled in its clear assessment of where and how real risks have increased for directors, and debunks myths that have resulted from misinterpretations of recent events in the media and elsewhere. It is highly readable for the busy director or executive, as well as informative for an experienced corporate lawyer.”
The Commission was chaired by Norman Veasey, former chief justice of the Delaware Supreme Court and, along with Mr. Falis of Kilpatrick Stockton, included legal and corporate leaders from companies across the country, including: American Express, Black & Decker, Conoco-Phillips, DuPont, ExxonMobil, General Electric, General Motors, Pfizer, Inc., Proctor & Gamble, TIAA/CREF, Tyco International, Wells Fargo and others.
About the National Association of Corporate Directors
The National Association of Corporate Directors (NACD) is an independent not-for profit membership organization devoted exclusively to improving corporate board performance. Founded in 1977, NACD conducts educational programs and standard-setting research, and provides information and guidance on a variety of board governance issues and practices. Membership is comprised of individual directors and
entire corporate boards from U.S. and overseas companies ranging from large publicly held corporations to small over-the-counter, private, and closely held firms. Institutions such as the U.S. Congress, SEC, NYSE and NASDAQ recently have called upon NACD to provide input and recommendations on standards of good corporate governance. www.nacdonline.org.
About Kilpatrick Stockton
Kilpatrick Stockton LLP is a full-service international law firm with more than 470 attorneys in nine offices across the globe: Atlanta and Augusta, GA.; New York, New York; Charlotte, Raleigh and Winston-Salem, N.C.; Washington, D.C.; London, England; and Stockholm, Sweden. Kilpatrick Stockton's delivery of innovative business solutions provides results-oriented counsel for companies, from the execution of myriad financing arrangements and complex business transactions to the protection and management of intellectual property. Kilpatrick Stockton's corporate, litigation, intellectual property and specialty-practice attorneys collaborate seamlessly to provide proactive and efficient counsel and guidance to companies at every stage of the business life cycle. For more, go to www.kilpatrickstockton.com.

01-27-2006

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K & R Law Group

Three Lawyers from K&R Law Group Named as 2006 Southern California Super Lawyers
Three partners from K&R Law Group LLP, a Los Angeles-based law firm that has one of the nation’s largest groups of experienced attorneys dedicated to serving the health care industry, have been named to the list of 2006 Southern California Super Lawyers.

Kevin Kroeker, Jon Manzanares and Peter Roan were nominated as Super Lawyers by their peers in the legal profession and were selected by a blue ribbon panel of independent researchers and industry analysts. The list was published in the February 2006 issue of Los Angeles magazine and in the annual edition of Southern California Super Lawyers magazine.

“All of us at K&R are very proud of these three talented attorneys, each of whom has distinguished himself with an extraordinary dedication to the representation of our clients’ interests,” said Michael C. Foster, managing partner of K&R Law Group. “These gentlemen are a tribute to our profession because they combine the highest legal ethics with exceptional legal judgment and skills. They are well-deserving of this honor and recognition from their peers in Southern California.”

Founded in 1977, K&R Law Group LLP is a key advisor to the health care industry. K&R specializes in representing quality health care organizations and companies, such as health plans, health facilities and hospitals, physician groups and pharmacy benefit managers. For more information, visit www.krlawgroup.com.

01-27-2006

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