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Law Firm News

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Weil, Gotshal & Manges, LLP

Weil Gotshal Crafts Award-Winning Deal Structure for Hertz Rental Car Securitization
Weil Gotshal News - Friday, January 13, 2006
Weil Gotshal's groundbreaking $4.3 billion rental car fleet securitization for the Hertz Corporation was named US ABS Deal of the Year for 2005 by Sourcemedia’s Asset Securitization Report. The transaction, which represented the asset-backed securities portion of the $15 billion leveraged buyout of Hertz, included two separate $2.15 billion deals, and was one of the largest asset-backed securities offerings ever completed. According to the Asset Securitization Report, the deal was selected not only for its impressive size, but also for its complexity and its creative and cost-effective use of asset-backed securities as a means to finance an M&A transaction.

The firm also provided legal counsel to Lehman Brothers, Deutsche Bank Securities and Merrill Lynch & Co., who served as structuring advisors and joint book-running managers; to Goldman Sachs & Co. and JP Morgan, who served as joint book-running managers; and to BNP Paribas, RBS Greenwich Capital and Calyon Securities (USA), who served as co-managers, all in connection with the securities offering.

The award was announced in the article “Hertz Captures US ABS Deal of the Year,” which appeared in the Asset Securitization Report on January 9, 2006.

For more information regarding Weil Gotshal’s Corporate practices, please contact Rod Miller or Frank Nocco in the firm’s New York office.

01-13-2006

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Warner, Norcross & Judd, LLP

Privacy in China



The Economist has an article about an emerging concept of privacy in China. According to the article, evidence that privacy – or “yinsi” – has not been traditionally valued is visible everywhere, from communal bathrooms to social interactions with strangers who think nothing of asking for information that Westerners would jealously guard. The article recounts the repressive measures imposed by China’s communist rulers to micromanage the lives of the Chinese people, even going so far as to monitor the menstrual cycles of women of childbearing age to ensure they did not get, or remain, pregnant without state permission. According to the Economist, “the worst of that is now long past.” The magazine notes that while many state controls remain over politics, religion and free expression, many in China are beginning to speak out against “the intrusiveness of nosy employers, data-mining marketers and ubiquitous security cameras.” “The long march to privacy,” http://www.economist.com/world/asia/displayStory.cfm?story_id=5389362



An article in BusinessWeek Online, however, illustrates how tenuous the Chinese claim to privacy is, at least with regard to the Internet. According to BusinessWeek, the Chinese government maintains a “vast security network,” in which “All Internet traffic entering or leaving China must pass through government-controlled gateways – that is, banks of computers – where e-mail and Web-site requests are monitored. E-mail with offending words such as "Taiwan independence" or "democracy" can be pulled aside and trashed.” The government also requires Western Internet companies to adhere to the party line if they wish to do business in China. Companies are given lists of banned terms they must use to censor Internet traffic. Recently, Microsoft’s MSN capitulated to a government request to shut down a site of a Chinese blogger. The Chinese government employs 30,000 people to scour the Internet looking for content that the government deems offensive. BusinessWeek says that podcasts and video blogs are creating a crack in the Chinese wall around the Internet, since it is much harder to examine audio and video files than text files. But, BusinessWeek suggests, the Chinese formula of requiring private companies to censor the Internet may enable the government to maintain its grip on the Internet. “The Great Firewall of China,” http://www.businessweek.com/technology/content/jan2006/tc20060112_434051.htm?campaign_id=rss_tech





Defining Spyware



The Anti-Spyware Coalition, an alliance between technology companies and public interest groups, has issued a definition of “spyware.” Defining spyware has become important to Internet marketing companies and the manufacturers of anti-spyware products who have wrestled over whether there are legitimate uses for spyware and adware and, if so, what they are. According to Cnet News:



The Anti-Spyware Coalition's guidelines, or risk model description, aim to provide a common way to classify spyware, based on risks a piece of software poses to consumers. They also suggest ways to handle software, based on those risk levels.



Among the behaviors the group considers high-risk are programs that replicate themselves via mass e-mails, worms and viruses. Also, programs that install themselves without a user's permission or knowledge, via a security exploit, are also deemed high-risk, as are programs that intercept e-mail or instant messages without user consent, transmit personally identifiable data, or change security settings.



“Anti-spyware guidelines get final version,” http://news.com.com/Anti-spyware+guidelines+get+final+version/2100-7349_3-6026632.html The guidelines can be found at http://www.antispywarecoalition.org/documents/RiskModelDescription.htm.





Site for Government Contractors Was Open to Corporate Espionage and Bid Tampering



The General Services Agency, a federal agency responsible for procuring goods and services for the government, has shut down a website used by government contractors, after a consultant reported that the he was able to modify information on the site submitted by vendors. According to the New York Times, “Computer security consultants said the flaws could have had consequences ranging from corporate espionage to bid tampering. They also said the agency now faced the challenge of cerifying the accuracy of contracting data.” The General Services Agency has said is has begun an “intensive search” for “possible irregularities.” The site, called eOffer, was used by 1,200 government contractors. “Web Site of Agency Is Called Insecure,” http://www.nytimes.com/2006/01/13/technology/13secure.html





01-13-2006

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Varnum LLP

Varnum Labor Presentations and Articles
Tim Tornga is presenting on "Consumer Driven Healthcare Options" at the Michigan Chamber Health Care Seminar in Lansing on February 7, 2006 and Novi on February 16, 2006.

Dick Hooker submitted an article on SUTA Dumping, with a focus on illegal immigrants, to The College of Labor & Employment Lawyers, Inc. newsletter.

Alison Reuter is presenting at the Grand Rapids Bar Association Labor and Employment Law Section meeting on February 7, 2006 on privacy issues (including discussion of the Social Security Number Privacy Act, HIPAA, ADA, and FCRA).

Varnum is sponsoring January Series, January 18, at Calvin College. The speaker is Paul Rusesabagina, the hotel manager featured in the movie "Hotel Rawanda." His one hour lecture begins at 12:30 p.m.

01-13-2006

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Varnum LLP

FMLA: New Certification Rules
The U.S. Department of Labor – Wage and Hour Division has released an opinion letter clarifying whether employers are permitted to request a new medical certification when an employee seeks to take FMLA-qualifying leave for the first time in a new FMLA leave year. The letter was drafted in response to an employer's question about whether it may ask an employee to provide a new medical certification, not just a recertification, for the first FMLA absence in a new leave year even though the employee's serious health condition was previously certified. The DOL opinion letter states that:

"An employer may reinstate the medical certification process with the first absence in a new twelve month leave year. A second and third medical opinion, as appropriate, could then be requested in any case in which the employer has reason to doubt the validity of the new medical certification. This is the case despite the fact that the employer had requested recertification in the previous 12-month leave year."

The DOL opinion letter provides employers who are having difficulties managing persistent FMLA leaves, or have ongoing questions concerning the legitimacy of an employee's serious health condition the opportunity to require employees to obtain a new medical certification in order to continue their FMLA leave. However, the opinion letter has limited application in that it only applies to those employees who are on FMLA leave for their own serious health condition. Thus, an employer cannot require an employee to furnish a new certification where the employee is utilizing FMLA leave to care for a spouse, son, daughter, or parent with a serious health condition.

For more information on this topic contact attorney Kurt Graham at (616) 336-6720.

01-13-2006

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Varnum LLP

Department of Labor Issues Regulations For USERRA
The Department of Labor has issued regulations interpreting the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Enacted after the first Gulf War, the Act applies to employees who are returning from service in the "Uniformed Services" and their employers. Generally, USERRA requires reinstatement of service men and women to a position with the employer that they would have achieved but for their service in the Uniformed Services. The Act also protects covered employees from discrimination or retaliation as a result of their service.

The regulations become effective January 18, 2006. They represent the first regulations promulgated pursuant to USERRA. As such, they offer much needed guidance to employers attempting to understand their obligations under the Act. The regulations are drafted in "plain English" in a reader-friendly "question and answer" style, similar to the regulations interpreting the Family and Medical Leave Act (FMLA).

The regulations do not impose any obligations not already contained in the Act itself. However, they do refine and explain some of the Act's existing provisions and include the Department of Labor's position on enforcement issues.

Some of the more notable aspects of the new regulations include the following:

•A clarification of the types of military service that are covered by USERRA. USERRA applies to employees in multiple forms of military service, both in the traditional "Armed Forces," as well as the National Guard and Reserve. The regulations clarify that USERRA also applies to other categories of persons designated by the President in times of war or national emergency, such as federally-activated disaster-response appointees under the National Disaster Medical System.

•A restatement of the Act's requirement that eligible returning service members must be "promptly" re-employed when they return from a period of service, and guidance regarding the effect or lack of effect of various circumstances, such as intervening employment with another employer or lack of documentation of the service period, on the employer's re-employment obligations. The regulations define "prompt re-employment" to mean "as soon as practicable under the circumstances of each case," and provide examples to serve as guidance as to how that definition will be applied.

• An explanation of the Act's "escalator" principle as it regards the terms and conditions of employment to which eligible returning service members are entitled. In short, covered employees are "entitled to re-employment in the job position that [they] would have attained with reasonable certainty if not for the absence due to [their service]". Also, covered employees are subject to both positive (promotions, wage increases, etc.) and negative (demotions, layoffs, etc.) fluctuations in their terms of employment, if they would have experienced them but for their service.

•A clarification of the Act's requirements concerning pension plan rights of eligible returning service members.

• A statement indicating employers are not precluded from offering more rights than required by the Act. The new regulations state that USERRA merely provides a "floor," not a ceiling, for rights and benefits conferred upon returning service members.

• A clarification of the burden of proof applicable to alleged violations of the Act. The individual alleging a violation has the initial burden to prove that a status or activity protected by USERRA was "one of the reasons that the employer took action against him or her." If the individual is successful in making such a showing, the burden shifts to the employer to prove "that it would have taken the action anyway."

• Guidance regarding the limitations period applicable to USERRA claims. The regulations specify that USERRA does not have its own statute of limitations, and that state statutes of limitations may not be applied. The regulations at least contemplate the possible applicability of the general, four-year, federal statute of limitations, however, and further state that the equitable doctrine of laches may preclude recovery in cases of unreasonable delay.

Employers who employ members of the Uniformed Services (including the National Guard and Reserve) should become familiar with their obligations under USERRA. In her remarks introducing the new regulations, Labor Secretary Chao expressed her hope that, especially given the "easy to read" format, the new regulations would "provide employers with the authoritative information they need to ensure USERRA rights are implemented without unnecessary delays." Information on USERRA, its new regulations, and the regulations themselves can be found at www.dol.govvets.

Finally, employers should also remain mindful that many states, including Michigan, have enacted their own laws governing the employment protections to be afforded to military service members. Employers are obligated to comply with applicable state laws, as well as USERRA, in their treatment of service member employees.

For more information on this topic contact attorney Stephanie Setterington at (616) 336-6466 or Jeff Canfield at (248) 567-7404.

01-13-2006

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Varnum LLP

Proposed Michigan Legislation
On September 27, 2005, a bill was introduced in the house to amend the Elliott-Larsen Civil Rights Act. House Bill 5234 seeks to add "the ownership or operation of a motorcycle, or the wearing of clothing associated with motorcycle ownership or operation" to the current list of protected characteristics, including religion, race, color, national origin, age, sex, height, weight, familial status and marital status. The bill was referred to the Committee on Government Operations.

01-13-2006

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Varnum LLP

United States Supreme Court Resolves Compensible Time Issues Under the FLSA
On November 8, 2005, the United States Supreme Court ruled in IBP, Inc. v. Alverez that the time spent by employees walking between a locker room and a production area is compensable under the Fair Labor Standards Act if the employees are required to don and remove protective and safety gear in that locker room.

The Supreme Court stated that the donning and removing of the protective gear are integral and indispensable to the work of those employees who wear such equipment. These activities define the outer limits of an employee's work day. Since the compensable work day begins when an employee starts his first principal activity (in this case donning protective gear) and ends when an employee completes his last principal activity (removing such protective gear), the Court ruled that the time spent walking to and from the locker room is also compensable.

For more information on this topic contact attorney Kelley Stoppels at (616) 336-6471.

01-13-2006

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