Law Firm News

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Law Firm News

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Cravath, Swaine & Moore, LLP

CRAVATH REPRESENTS JONES APPAREL IN SALE OF POLO JEANS COMPANY AND SETTLEMENT OF OUTSTANDING LITIGATION
Cravath represented Jones Apparel, Group, Inc. in the sale of its Polo Jeans Company business to Polo Ralph Lauren Corporation and the settlement of outstanding litigation between the two companies for approximately $355 million. The partners involved in this matter are Scott A Barshay and George F. Schoen on corporate issues, Ronald S. Rolfe and David Greenwald on litigation issues, Andrew W. Needham on tax issues and Eric W. Hilfers on employee benefits issues. The deal was announced on January 23, 2006.

01-24-2006

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Cravath, Swaine & Moore, LLP

CRAVATH REPRESENTS JONES APPAREL IN SALE OF POLO JEANS COMPANY AND SETTLEMENT OF OUTSTANDING LITIGATION
Cravath represented Jones Apparel, Group, Inc. in the sale of its Polo Jeans Company business to Polo Ralph Lauren Corporation and the settlement of outstanding litigation between the two companies for approximately $355 million. The partners involved in this matter are Scott A Barshay and George F. Schoen on corporate issues, Ronald S. Rolfe and David Greenwald on litigation issues, Andrew W. Needham on tax issues and Eric W. Hilfers on employee benefits issues. The deal was announced on January 23, 2006.

01-24-2006

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Chapman & Cutler LLP

Chapman and Cutler Adds Securitization Partner Todd Plotner
CHICAGO (January 24, 2006) – Continuing to add to its platform as one of the leading financial
services law firms, Chapman and Cutler LLP announced that Todd Plotner, an attorney with a wealth of
experience in asset-backed securitizations, has joined the firm as a partner.
Mr. Plotner joins from the Chicago office of Sidley Austin. Although he will primarily operate from
Chapman’s Asset Securitization group, his broad transactional background will likely support a number of
the firm’s other finance practices.
Mr. Plotner’s work focuses on structured finance, asset securitization, lease finance and commercial finance,
including the restructuring of troubled transactions. His client representations have likewise been farreaching,
including operating companies, captive finance companies, domestic and foreign banks and
investment banks, major commercial paper conduits, mono-line insurers and other financial institutions.
The 32-year-old finance attorney also has substantial large-deal experience. In the past year, he worked on a
$3 billion auto loan securitization; a $2.5 billion student loan warehouse facility; a $1.7 billion shipping
container securitization; and a $1.1 billion variable funding facility for auto dealers floor plans financings.
“In a relatively short career, Todd has shown exceptional range and execution skills on very sophisticated
transactions – given the diversity of our own practice, we are certain he will contribute significantly,” said
Walter Begley, co-chair of the Asset Securitization group at Chapman and Cutler.
“There is so much change in the institutional marketplace today, with new products, hybrids and revenue
streams being developed on an ongoing basis. We’re pleased to add someone as versatile as Todd, who is
comfortable working with virtually any kind of asset and structured transaction,” Mr. Begley added.
Mr. Plotner has experience in establishing leveraged equity investments, warehouse financings and bridge
loans for affordable housing, as well as new markets tax credit and community development projects. He
has represented the arranger, agent and lead lender in the two largest leveraged equity investments involving
new markets tax credits since the inception of the new markets tax credit program created by the U.S.
Treasury.

01-24-2006

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Cadwalader, Wickersham & Taft LLP

Cadwalader Recognized by Chambers Global
New York, NY, January 24, 2006, The global reach of Cadwalader, Wickersham & Taft LLP has
again been recognized by Chambers Global Guide 2006 which ranked the firm and its
attorneys in the areas of Capital Markets, Corporate/M&A, Bankruptcy, Tax, Energy and Natural
Resources, and Private Client, as well as for expertise in Africa.
Capital Markets
Cadwalader’s renowned Capital Markets team was recognized for strength in debt & equity,
securitization, structured finance and derivatives. The U.S. securitization attorneys are described
as “giants of the CMBS market” while the London practice is billed as “[a] favourite among
issuers and underwriters in the CMBS industry.” The derivatives team is cited for expertise with
structured credit derivatives, exchange rated derivatives and municipal products as well as for
being “adventurous in evolving new structures.” Anna Glick, David Mitchell, and Richard
Schetman of the New York office, Angus Duncan and Christian Parker of the London office, and
James Carroll and Steven Cohen of the Charlotte office were all recognized as leaders in their
fields.

01-24-2006

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Bell, Boyd & Lloyd, L.L.C.

James Daley Appointed to Illinois Compensation Review Board
Chicago, January 24, 2006 -- James P. Daley, Chair of Bell, Boyd & Lloyd's Labor and Employment Group, has been reappointed to the Illinois Compensation Review Board by Illinois House Speaker Michael J. Madigan.

The Compensation Review Board determines compensation for members of the General Assembly, judges, State's attorneys, elected constitutional officers and certain appointed officers of State government. The twelve-member panel serves without compensation and meets as often as necessary, including holding public hearings, before sending its recommendations to the General Assembly.

Mr. Daley, whose practice at Bell, Boyd is devoted to representing employers in their relationship with their employees, was first appointed to the Board by Speaker Madigan in 1990.

01-24-2006

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Stites & Harbison PLLC

Stites & Harbison attorney joins Tennessee Justice Project
Stites & Harbison attorney Bradley A. MacLean has joined The Tennessee Justice Project as assistant director and will coordinate and direct the organization's efforts to reform the state's criminal justice system.

MacLean, who has chaired The Tennessee Justice Project board since 2004, will remain of-counsel to Stites & Harbison, where he will continue to be involved in death penalty cases. In 1996, he took on Abu-Ali Abdur'Rahman's death penalty case, which has played a major role in lethal injection challenges throughout the country. MacLean also was lead counsel in a commercial free speech case successfully appealed before the U.S. Supreme Court. He is listed in The Best Lawyers in America® and was named a 2006 Mid-South Super Lawyer by Law & Politics Magazine.

"I've had the opportunity to be co-counsel with Brad on a death penalty case for eleven years," said Bill Redick, Tennessee campaign director for The Justice Project. "Brad has the knowledge, experience, and expertise to be a great asset to the Tennessee Justice Project. With his help, I am confident that we will be able to satisfy our mission to educate lawmakers and the public to bring about change where it is needed in order to insure a fair and reliable criminal justice system in Tennessee."

"We are pleased that a lawyer of Brad's abilities is joining the Tennessee Justice Project," said Stuart Campbell, managing member of Stites & Harbison's Nashville office. "For over 25 years, Brad has been an outstanding advocate for many of Stites & Harbison's clients, and we are excited that he will continue to be a resource for the benefit of our clients."

Based in Washington, D.C., The Justice Project is a nonpartisan organization dedicated to fighting injustice and to creating a more humane and just world. Through communications, research and policy initiatives, The Justice Project's Tennessee Campaign is working to ensure that the state of Tennessee provides adequate counsel to indigent capital defendants, as well as advancing other critical criminal justice reform proposals that will help to prevent wrongful convictions and executions.

MacLean is a member of the American Bar Association, Death Penalty Moratorium Implementation Project, the Tennessee Bar Association, and a fellow of the Nashville Bar Foundation.

01-23-2006

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Stites & Harbison PLLC

Could you be held responsible for consequential damages?
In a recent case a subcontractor thought that it was insulated from liability for any costs suffered by a general contractor beyond the bare, direct cost of correcting any defects with the subcontractor's work. It was not.

Construction owners often find themselves on the other side of the same coin . . . they are held liable for damages suffered by a contractor that don't seem at all related to the owner's project.

Could this happen to you?

What we are talking about here is something called "consequential damages" — not a direct cost over-run on a job-gone-wrong — but a cost that is a down-the-road, off-the-job consequence of that job having gone wrong.

Whether an owner or a contractor can recover its consequential damages is a function of the factual tie between the action that caused the job to go wrong and the consequential damages suffered and the precise wording of the written agreement between the owner and the contractor.

In the recent case referenced above, Dynamic Air, Inc. v. Downey, Inc., 2006 U.S. Dist. Lexis 54766, Dynamic Air, a subcontractor, thought that it was protected from all consequential damages that might be incurred by the general contractor and owner as a result of any defective performance on its part. It relied upon restrictive language barring recovery of consequential damages in a contract warranty provision.

In this particular instance, the project general contractor alleged that the warranty provision took effect only after the work was completed; but that the general contractor and owner suffered consequential damages before completion of the project. The judge reviewing a motion by Dynamic Air to throw out the general contractor's law suit, agreed that the language barring all consequential damages, restrictive as it was, only applied after work was completed, and ruled for the general contractor and against the subcontractor as to consequential damages incurred before contract completion.

So, in this instance, even though the subcontractor thought that it was protected it was not; and it may well have to pay.

If nothing in the contract addresses the possibility of recovery of consequential damages, then, under an ugly set of facts, both the owner and the contractor are both potentially at risk to pay the other such legitimate consequential damages as can be proven in court.

The Dynamic Air case is only the latest in a long line of cases that address consequential damages in a construction setting.

The law books are full of examples where contractors have recovered from owners for the consequences of job site delays that are not of the contractor's making. Examples of this variety of consequential damages include loss on the contractor's bonding capacity and decrease in the absorption of the contractor's home office overhead. To combat this species of consequential damages, owners often insert "no damage for delay" clauses in their contracts. The enforceability of these clauses varies from state to state depending upon the exact factual scenario that gave rise to the project delay.

On the other side of the coin we find Perini v. Great Bay Casino, Inc., 129 N.J. 479 (1992). Delay in opening an Atlantic City casino (actually, delay in completing a connector bridge linking the casino to the Board Walk) allegedly caused the casino owner to lose $14,500,000 in revenue (consequential damages — many times the value of the underlying construction contract — $600,000). A court in New Jersey affirmed an arbitration award holding the contractor liable to the owner for this sum.

The Perini case led the American Institute of Architects to enact a standard form "Mutual Waiver of Consequentical Damages" clause [Section 4.3.10] in its family of construction contract documents in an attempt to insulate future contractors and owners from liability for these sorts of recoveries. However, in our practice we have seen many contracts in which this clause has been significantly modified . . . modified in a manner that may place the protection and/or enforcement of the underlying intent of the AIA drafters in doubt.

What lessons are to be learned from all this? There are at least three:

* Make sure that you understand what your contract says. If you don't understand it, don't sign it.

* If your company can't live with what the contract says, don't sign the contract.

* In most instances be certain that your contracts contain provisions that protect you from consequential damages. The one notable exception to this policy arises where an owner absolutely has to have its project up and running by a particular date and wants monetary assurance from the contractor that this date is met. This assurance is most frequently provided through a liquidated damages provision and not by a blanket indemnity for all consequential damages.

01-23-2006

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