Media Mentions
2009
Todd Solomon spoke on December 31 to CCH Federal Tax Weekly regarding Senate committee approval of a bill to provide domestic partner benefits to federal employees. Saying that if the bill became law it “would represent a dramatic sea change and would signal that the prevalence of domestic partner benefits in corporate America has spread to all levels of the public sector,” Mr. Solomon noted that, “contrary to the minimal domestic partner benefits provided to certain government employees earlier this year, this law would provide full benefits, including retirement and pension benefits, to the domestic partners of all employees.” He added that the federal Defense of Marriage Act would require the federal government to tax employees on the value of health benefits provided to domestic partners, just as private sector employers must do.
Todd A. Solomon, Employee Benefits & Pensions
Jeffrey Stone commented for a number of publications, including The National Law Journal (December 21), The Recorder (December 24) and Texas Lawyer (December 28), regarding former Enron CEO Jeffrey Skilling’s appeal of his accounting fraud conviction. At issue in Skilling’s case, now before the U.S. Supreme Court, is his conviction under a 1988 law that makes it a crime to “deprive another of honest services.” “Honest services was an important element of the prosecution’s theory in the case,” said Mr. Stone, who added that the theory has also been invoked in recent options-backdating cases. “If the court redraws the boundaries, it will return prosecutors back to more traditional theories of deprivation of tangible goods.”
Carol Harrington was quoted on the potential 2010 expiration of the federal estate tax due to a 2001 tax cut. "We don't know what to tell our clients.... Nobody...thought Congress would be this irresponsible in dealing with a situation that they had on the horizon for nine years" (Washington Post, Dec. 19). Although Congress may make the tax retroactive, "there are some people who will take that bet" that it won't, which "could be a pretty big advantage if Congress is so dysfunctional" as not to act (Bloomberg, Dec. 21; Denver Post, Dec. 28). Meanwhile, the expiration "bring[s] potential planning opportunities but also dilemmas, because we don't know what will happen" (Wall Street Journal, December 19). In short, she sees "a disaster even if you are in favor of repeal" (Reuters, Dec. 18), because estate planners "may have to change every other client document....The uncertainty is paralyzing" (Forbes, Dec. 17).
Carol A. Harrington, Private Client
Michael Peregrine was interviewed by Corporate Board Member (Dec. 11) concerning the Justice Department's increased effort to hold individual directors accountable for bad corporate behavior. "This is not the beginning of some broad effort by the government to seek strict liability for every possible violation of law," Mr. Peregrine stated, but he added that "on certain types of civil or criminal matters the government is definitely seeking to hold individuals responsible through...strict liability principles." Mr. Peregrine advised corporate boards to "be prepared for an increase in the level of reporting up the ladder of potential violations of the law by corporate employees to come to the general counsel's attention," adding that for effective compliance programs, "boards and senior leadership can take steps to make sure that the tone at the top is clear and unambiguous, that education is strong, and that compensation is structured for compliance."
Michael W. Peregrine, Corporate Responsibility and Governance
Roger Strode, Jr., was mentioned on December 29 by the Chicago Daily Law Bulletin for having joined the Healthcare Advisory Board of Pinstripe, Inc., a human resources and recruitment outsourcing company. Mr. Strode’s practice focuses on health care business transactions.
Paul DeStefano was quoted in a December 28 Daily Journal story that reviewed the possible effect of health reform legislation on business combinations in the health care industry. He noted that reform bills have had little effect on mergers and acquisitions involving large pharmaceutical companies, mainly because those deals take too long to respond to rapidly changing legislative developments. “The cycle on product development is so long, so uncertain and so expensive, you can’t turn that ship based on a change made today,” Mr. DeStefano said.
Paul R. DeStefano, Health, Life Sciences & Medical Device Litigation, Life Sciences - Corporate, Life Sciences - Health
Eric Hargen discussed for FDA Week (December 25) provisions in the final Senate version of the health care reform bill that impose limits and hurdles on the Centers for Medicare and Medicaid Services (CMS) for using comparative effectiveness research (CER) to make reimbursement and coverage decisions. The new provisions “did nothing to disturb the underlying other provisions that guide CMS in using this data,” Mr. Hargen observed. He added that under the provisions “CMS has been given a framework in which to use [CER]. They’ve been given an implicit license to use it as long as they use it in a particular way.”
Edward Leibensperger was quoted by the Boston Business Journal on December 25 concerning a pilot project beginning 2010 in Suffolk Superior Court’s Business Litigation Section to reduce the amount and cost of discovery in each case. “Change is always hard, so getting people to buy into this pilot might be difficult,” Mr. Leibensperger said, but he added: “I personally think it’s a good idea. It would control litigation in a better way … good lawyers will welcome the idea of streamlining and targeting the cases to get results faster and more efficiently.”
Edward P. Leibensperger, Trial
Eugene Goldman was quoted on December 21 by CFO.com concerning the likelihood that recent accounting fraud charges by the SEC indicate more extensive future enforcement actions. “Between the [SEC’s proposed 2010] $1 billion budget and the need to project that [the SEC is] tough, it's reasonable to expect a pretty aggressive enforcement program,” Mr. Goldman stated.
Eugene I. Goldman, SEC Defense, Trial
Carol Harrington was quoted on December 21 by Business Week.com in a Bloomberg News story concerning the 2010 expiration of the federal estate tax. Ms. Harrington noted that, although Congress may reinstate the tax and make it retroactive on those individuals who used the expiration to transfer wealth at a steep tax discount, “There are some people who will take the bet” that this will not happen. “It could be a pretty big advantage if Congress is so dysfunctional that retroactivity is no better than a 50-50 bet,” she added.
Carol A. Harrington, Private Client
David Cifrino was mentioned in the Massachusetts Bar Association web site on December 17 for his election as president of the Eastern New England Chapter of the Society of Corporate Secretaries & Governance Professionals. The Society’s members deal with public disclosure under the securities laws and corporate governance matters. Mr. Cifrino, co-head of McDermott’s Public Companies Group, represents a wide range of companies in securities, governance and other issues.
David A. Cifrino PC, Corporate
Gordon Greenberg was quoted December 16 on Law.com, in an article also carried in The National Law Journal and The Recorder, concerning a California federal judge’s dismissal without prejudice of the Security & Exchange Commission’s stock options backdating case against several Broadcom Corp. executives, including Mr. Greenberg’s client, the company co-founder. Mr. Greenberg called the dismissal “truly a turning point to be heard throughout this country,” noting that several unrelated cases have also recently been dismissed on the grounds of prosecutorial misconduct, such as the court cited in this case. Addressing Judge Cormac Carney on behalf of his client, Mr. Greenberg added, “Your Honor has set the record straight.”
Gordon Greenberg was quoted December 16 on Law.com concerning a California federal judge’s dismissal without prejudice of the Security & Exchange Commission’s stock options backdating case against several Broadcom Corp. executives, including Mr. Greenberg’s client, the company co-founder. Mr. Greenberg called the dismissal “truly a turning point to be heard throughout this country,” noting that several unrelated cases have also recently been dismissed on the grounds of prosecutorial misconduct, such as the court cited in this case. Addressing Judge Cormac Carney on behalf of his client, Mr. Greenberg added, “Your Honor has set the record straight.”
Andrew Liazos was quoted on December 15 by CFO.com in an article about how the coming of the Bush tax cuts, and a likely higher tax rate as a result, could lead to a decrease in executives’ use of deferred compensation arrangements. "It's a bit of a twist,” Mr. Liazos said. “[P]eople usually try to defer compensation as long as possible, but now you see many evaluating how to accelerate it as much as possible because of the fear the tax situation will become much worse." He added that some companies are even planning to do away with their deferred compensation plans entirely, in part for tax reasons.
Andrew C. Liazos, Employee Benefits & Pensions, Executive Compensation
Andrew Liazos discussed issues relating to deferred executive compensation on December 15 for Forbes.com. “There's no question some executives are still deferring [pay], particularly when there is a long time horizon and their employer is stable,” Mr. Liazos said, “but many executives are deciding to take dollars now due to uncertain tax rates, economic conditions and personal cash flow.” One consideration is that the top tax rate on ordinary income may go from 35 percent today to at least 39.6 percent for 2011 as the Bush tax cuts expire. For that reason, Mr. Liazos advised executives that “if you have a large amount of dollars at stake and your time horizon is short, you're better off taking the taxable income in 2010, because otherwise you're looking at least a 5 percent haircut in terms of tax liability in 2011.”
Andrew C. Liazos, Employee Benefits & Pensions, Executive Compensation
Mary Boyle and Eugene Litvinoff were mentioned by The Recorder on December 14 for their promotion to partner in McDermott’s Silicon Valley office. Ms. Boyle focuses on intellectual property litigation, Mr. Litvinoff on white collar defense and internal investigations.
Mary Boyle Ph.D., Eugene S. Litvinoff, Intellectual Property, Trial, White-Collar Criminal Defense
Judith McCue was cited in a December 14 Forbes.com review of important estate planning steps. Concerning the issue of titling financial assets, Ms. McCue warned that married couples whose wills set up credit shelter trusts that preserve the state and federal estate tax exemption of the first spouse to die must hold the assets in the name of each spouse separately. Also, individuals who plan to have their estates distributed through living trusts must retitle their assets in the name of the trust.
Judith W. McCue, Private Client, Trust & Estate Controversy
Christopher Man and Joshua Rogaczewski were mentioned by the Washington Post, the Washington Times and the Washington Business Journal (all December 14) for their promotion to partner in McDermott’s Washington, DC office. Both lawyers are members of the Firm’s Trial Department.
Christopher D. Man, Joshua D. Rogaczewski, Trial
Dennis White commented December 14 for Mergers & Acquisitions Report regarding the latest bi-annual survey of M&A professionals made by the Association for Corporate Growth (which Mr. White chairs). He noted that the survey showed it is “difficult for buyers and sellers to come to agreement on value and see eye-to-eye” regarding transactions in today’s market conditions. “Sellers are pretty cautious these days and don’t want to overpay,” Mr. White said, adding that private equity firms are devoting “quite a bit of their time to pursuing distressed deals.”
Dennis J. White, Corporate, Mergers & Acquisitions, Private Equity
Gregory Heltzer and Ira Mirsky were mentioned by the Washington Post on December 14 for their promotion to partner in McDermott’s Washington, DC office. Mr. Heltzer practices in regulatory and government affairs, Mr. Mirsky in employee benefits.
Gregory E. Heltzer, Ira B. Mirsky, Employee Benefits & Pensions, Regulation & Government Affairs - Germany
Paul DeStefano was cited by Biotech Business Week on December 14 for joining McDermott’s Silicon Valley office as a partner. Calling Mr. De Stefano “one of the nation’s elite attorneys in the biotech industry,” the article noted that he will provide guidance on the formation, financing and operations of companies in the biotech-pharmaceutical sector.
Paul R. DeStefano, Health, Life Sciences & Medical Devices
Michael Peregrine was quoted by Modern Healthcare on December 11 concerning new materials issued by the Internal Revenue Service to help non-profit hospitals and other tax-exempt organizations better understand the IRS tax compliance review process. Mr. Peregrine said he sees the new materials “extrapolating and putting meat on the bones” of the governance section on the Form 990 that charitable organizations must file with the IRS. He added that the questions contained in the materials will give organizations “a better idea of what the IRS is expecting the right answer to be.”
Michael W. Peregrine, Corporate Responsibility and Governance, Nonprofit Organizations
Joshua Buchman was quoted by Corporate Board Member (Dec. 11) about the Justice Department's increased effort to hold individual directors and officers accountable for bad corporate behavior. "What we're talking about is strict liability offenses, primarily under the various environmental laws and under the Food, Drug and Cosmetic Act," he stated. As he described the message of prosecutors to directors, "If you were...in a position of responsibility at a company such that your position would afford you the ability to prevent or do something about...corporate violations of the law, then you could be held responsible...despite having no knowledge...and no intent that the corporation did anything wrong." Mr. Buchman advised officers to create a record showing that their compliance program efforts were "so state-of-the-art and so good that it would not be fair or appropriate" to prosecute them for such offenses.
Joshua T. Buchman, Corporate Responsibility and Governance
Michael Peregrine analyzed for Government and Politics Watch (December 11) new Internal Revenue Service materials for charities regarding their governance practices. He said the materials “demonstrate that, to the IRS, charity governance is a serious matter,” and that “the IRS is expanding on the governance issues it considers of interest.” According to Mr. Peregrine, such issues can include “inability to obtain a quorum for meetings, control centralized in one or two individuals, failure to exercise strong financial oversight, poor conflicts practices, and failure to address the recommendations of the independent auditor.” He added that the new materials can be “a useful tool” for charities to “monitor the effectiveness of existing governance practices,” especially if state attorneys general start to expand their own reviews of charities.
Michael W. Peregrine, Corporate Responsibility and Governance, Nonprofit Organizations
Abbe Lowell was quoted by Law.com on December 11 concerning a decision by a Fifth Circuit panel of judges to vacate the bribery conviction of former Mississippi plaintiff lawyer Paul Minor, who will now be resentenced by a Mississippi federal judge. “Paul has served enough time,” said Mr. Lowell, who is one of Minor’s lawyers. “I think there’s some hope there. But it all depends on the judge.”
Dennis White spoke to CFO.com on December 11 concerning the new survey of merger and acquisition activity by the Association for Corporate Growth (which he chairs). He said that strategic buyers of companies “for the moment have a strong advantage over private equity firms, who have to round up bank financing to get their deals done,” adding that these strategic buyers “are sitting on cash or have pre-negotiated lines of credit” and are often looking for “niche, synergistic businesses, particularly in technology and clean tech.” Mr. White also said sellers and buyers of companies are having difficulty agreeing on valuations. “Sellers try to argue that you shouldn’t look at the current environment when valuing their company, … [b]ut buyers are reluctant to buy that argument,” he noted.
Dennis J. White, Corporate, Mergers & Acquisitions, Private Equity
Amy Ferrer was mentioned by the e-mail newsletter of the Boston Bar Association on December 10 for her promotion to partner in McDermott’s Boston office. Ms. Ferrer is a member of the Firm’s Corporate Department.
Gordon Greenberg was quoted on December 10 by Law.com, which interviewed him concerning a federal judge’s dismissal of Broadcom Corp. co-founder Henry Samueli’s guilty plea in a stock options backdating case. “I’m happy to say it’s true,” said Mr. Greenberg (who represented Samueli) of the dismissal. “It’s a wonderful life and he’s Jimmy Stewart – just like the movie people watch at this time of year.” Mr. Greenberg explained that the judge concluded Samueli’s statement on which his plea had been based “was not materially false,” and added about the decision: “It was truly remarkable; people in the courtroom were crying left and right.”
Dennis White was interviewed December 9 on CNBC’s Power Lunch concerning a new Association for Corporate Growth survey of dealmakers involved in M&A activity. “Buyers are in the driver’s seat in M&A deals according to the survey, and right now they are largely corporate buyers who are looking for strategic opportunities to purchase companies that have synergistic fit with their existing business,” Mr. White stated. He noted that up to 9 percent of current M&A deals are by such corporate buyers, because private equity firms are having difficulty raising cash for their own deals. “Cash is king right now,” Mr. White added, “as virtually all M&A deals are being done as cash transactions – particularly those involving distressed companies that need cash to pay off their creditors.”
Dennis J. White, Corporate, Mergers & Acquisitions, Private Equity
Dennis White was quoted by Private Equity Professional Digest on December 9 regarding the Association for Corporate Growth’s new survey of merger and acquisition activity. “Deal making continues to be caught in the doldrums with limited activity outside of distressed sales and select strategic investments, but the fact that merger professionals express heightened optimism about 2010 is a hopeful sign that a freshening wind will arise,” Mr. White declared.
Dennis J. White, Corporate, Mergers & Acquisitions, Private Equity
Massimiliano Russo provided four articles in the 8-14 December 2009 issue of Il Sole 24 ore, which looked at pharma supply contracts with the Italian government (vaccines against H1N1 influenza) and the comparison with U.S. law.
Massimiliano Russo, Health, Italy
Jennifer Belcher was featured in a December 8 story on SWVAToday.com regarding her first place win in the Virginia Farm Bureau Federation’s annual Young Farmer Discussion Meet. The Virginia Farm Bureau is the state’s biggest farmers’ advocacy group with more than 150,000 members. Participants in the Discussion Meet are judged on their ability to build consensus and work toward solutions. The final-round topic was how farmers can reach out to the public to make people more aware of and supportive of agriculture. Ms. Belcher discussed the producers’ need to share with the public as much information as possible about farming to gain the public’s support. She suggested using the media, Web sites and other tools to educate people and encouraged Farm Bureau members to become part of the state’s Spokesfarmers’ program to connect with other industries.
Bobby Burchfield was quoted by the New Jersey Law Journal on December 7 concerning a federal judge’s ruling that modifies a consent decree that has limited ballot security and poll-watching activities around the country, and that sets a date eight years from now to end the decree. Mr. Burchfield, who represents the Republican National Committee in seeking to have the decree vacated, called the ruling “a step in the right direction” but said that an appeal is a “distinct possibility,” adding that his client will continue to seek a “truly level playing field with the DNC [Democratic National Committee] in terms of election day activities.”
Bobby R. Burchfield, Elections & Political Law, Trial
Eugene Goldman spoke to The National Law Journal on December 7 about cuts that some companies are making in their internal audit and compliance departments. Although he did not feel that such cuts would “necessarily” create more litigation risk, Mr. Goldman advised companies to proceed cautiously. “The [board’s] audit committee, in exercising its oversight function, should weigh in when management is considering cutting the compliance function at a time when extra monitoring should be considered,” he said.
Eugene I. Goldman, Corporate Responsibility and Governance, Trial
Michael O’Neill was quoted in a December 7ChannelWeb story that discussed the role that video gamers have played in demanding faster personal computers and better graphics. Such improvements have benefited all PC users, Mr. O’Neil stated. “Video games are now widely used in all walks of life as educational and training tools,” he observed. “Schools use video games to teach children math, spelling, grammar and geography. The United States military uses video games extensively to train soldiers and pilots. Computer graphics technology is used in the medical field to enhance MRI scans.” The article noted that Mr. O’Neil is co-head of the Video Game Technology section in McDermott’s IP Department.
Michael R. O'Neill, Computer Hardware/Networking, Intellectual Property, Software & IT Services
Stephen Ryan, head of the Firm’s Government Strategies Practice Group, and new group members Lanny Davis and Eileen O’Connor, were profiled in Legal Bisnow/Washington on December 4. Mr. Davis and Ms. O’Connor have been working to facilitate a resolution to the recent transition of power in Honduras and plan to unveil a crisis management blog within the next year. Mr. Davis has also represented a South Korean university as plaintiff in a $50 million lawsuit against his alma mater, Yale. Mr. Ryan stated that the two new group members are helping to realize his vision for the practice as a three-legged stool (public relations, public policy, and litigation), which enables him and other group members to visualize what clients’ litigation strategy should be in case their political approach doesn’t work.
Lanny J. Davis, Eileen M. O'Connor, Stephen M. Ryan, Government Strategies
Stephen Ryan addressed in a December 4 Associated Press story whether the uninvited couple that breached security at a White House state dinner could be prosecuted for their actions. Although he thought criminal prosecution was unlikely, Mr. Ryan said that the government could bring felony charges against the couple for making false statements to the Secret Service, which could bring a maximum sentence of five years in prison. “It would seem to me that could cover this event,” Mr. Ryan said of the possible charge, adding that whether it could be brought would depend heavily on what the couple told the screeners at the White House the night of the dinner. The article also noted that Mr. Ryan, when an Assistant U.S. Attorney, once prosecuted a White House fence jumper.
Stephen M. Ryan, Government Strategies
Michael Keller was profiled by Law360 and mentioned in AmLaw Daily’s “The Churn” (both December 4), as he joined McDermott’s Miami office to become a partner in the Firm’s intellectual property practice. Mr. Keller has more than 17 years of experience in patent prosecution, trademark work, counseling and licensing in the areas of therapeutic, diagnostic and medical device products.
Michael J. Keller, Intellectual Property
Gregory Lawrence was quoted in the Boston Business Journal on December 4 concerning the impact that the new Administration and Congress have had on lawyers and law firms. “The Obama administration and Congress have announced a number of important renewable energy incentives, and those have driven a number of transactional and regulatory projects for our firm,” Mr. Lawrence stated. He added that while the Bush Administration “constrained the Environmental Protection Agency from acting on its potential authority on the Clean Air Act to regulate greenhouse gases,” the Obama Administration and Congress are actively focused on regulating greenhouse gasses – another potential new source of legal work.
Gregory K. Lawrence, Energy & Commodities Government Investigations, Energy and Derivatives Markets, Global Renewable Energy, Emissions and New Products
Stephen Ryan spoke to FederalNewsRadio.com on December 3 concerning new rules that require senior Department of Defense officials to get written approval from a Designated Agency Ethics Official (DAEO) before taking a job with a defense contractor within two years after leaving government service. Speaking of these approvals, Mr. Ryan noted that “some of the people who write them do a terrific job and there's very good, practical guidance to people. However, we've seen a lot of those ethics opinions that it's not real clear. The guidance isn't terribly refined and it leaves the person confused about what it is.” He urged any official needing an ethics ruling to get a private sector opinion to go along with a DAEO opinion. As a provider of such opinions, Mr. Ryan said, “we try and sharpen up that analysis if the designated agency ethics officer didn't do that in the first instance.”
Stephen M. Ryan, Government Contracts and Public Procurement, Government Strategies
Paul De Stefano was mentioned in numerous media outlets on December 2 and 3 as he joined the Health Industry Practice Group and Life Sciences & Medical Devices practice at McDermott’s Silicon Valley office. Mr. De Stefano will focus on strategic planning and legal representation in the formation, financing and operation of biotech and pharmaceutical companies. Coverage appeared in (among others) Intellectual Property Today, BusinessWeek.com, Bizz.Yahoo.com, Law360, National Law Journal, Law.com, USA Today, The Recorder, LawFuel.com and Biovalley.
Paul R. DeStefano, Health, Life Sciences & Medical Devices
Deanna Newcomb was mentioned in the November/December 2009 issue of World-Generation for joining the Energy & Derivatives Markets Practice Group of McDermott’s Houston office.
Deanna L. Newcomb, Energy and Derivatives Markets
John Rhie was quoted on December 2 by Global Arbitration Review in a story about a UK judge’s rejection of an attempt by two ship owners to collect on arbitration awards against Mr. Rhie’s client, a South Korean company. The judge held that the doctrine of separability in arbitration clauses did not apply equally to jurisdiction clauses, which Mr. Rhie said highlights the different standards English courts will use in applying the doctrine of separability for litigation. He stated that parties in UK arbitrations who were accustomed to believe that this doctrine was fundamental “should be aware that this certainly is not the case for English litigation cases, at least at the jurisdiction stage.”
John Rhie, Litigation - London, London, Trial
James Lastowka spoke to EHS Today on December 1 concerning future occupational safety and health issues that companies are facing. He identified “the promised aggressive enforcement by the ‘new sheriff in town’” as the most significant new issue, adding: “There is a need and a place for strong enforcement when and where it is deserved. But a commitment to bring major enforcement actions to ‘send a message’ that does not also include a focused and objective effort to sort out the truly bad actors from those companies that actually do commit resources to safety is misguided.” Mr. Lastowka observed that “OSHA must be careful to not sacrifice the reputation of a company that makes substantial safety efforts to a perceived need for a dramatic headline to demonstrate its toughness and leverage its enforcement clout.”
James A. Lastowka, Labor & Employment, OSHA, MSHA & Catastrophe Response
Joan Polacheck was quoted in the December 2009 issue of Inside Counsel regarding health care reform legislation being considered by Congress. She stated that provisions to fight fraud by strengthening requirements that health care organizations return overpayments quickly will play a key role in funding the overall plan. “There will be enhanced scrutiny of the relationship between health care providers and insurance companies,” Ms. Polacheck stated, which will create increased pressure to identify and refund overpayments.
Joan Polacheck, Health, Health - Insurance, Reimbursement/Fraud & Abuse
Michael Kendall was quoted extensively in a November 2008 Corporate Secretary article on the increased prosecution risks that corporate executives face. He noted that the trend involves "more aggression against corporations and executives, more aggression in who you go after and the theories used to go after them, more aggression in the financial penalties being sought and the length of sentences being imposed on executives." Mr. Kendall ascribed the increased prosecution both to public desire and to what he called "bureaucratic inertia toward continuing aggressiveness by prosecutors – you never hear of penalties becoming less onerous, do you? It is always more, more, more." Mr. Kendall advised board members that "scrupulous adherence to correct process is the best advice" for avoiding trouble, … "as long as the basic touchstones of good governance are applied: appropriate disclosure, experience, expertise and independence."
Michael Kendall, Corporate Responsibility and Governance, Trial
Kari Larsen was cited extensively by Megawatt/Gas Daily on November 30 concerning congressional efforts to regulate over-the-counter energy derivatives trading. Noting that physical power trading by such energy entities as ISOs and RTOs is already “robustly regulated” by the Federal Energy Regulatory Commission (FERC), Ms. Larsen said that “the primary goal will be to protect FERC’s jurisdiction” in any new regulatory scheme. She observed that, given FERC’s stated intent to have sole regulatory control over wholesale energy markets, the goal of the Commission and its allies in Congress will be “to protect FERC’s bailiwick.” However, Ms. Larsen added, given the continued public clamor for an end to purported Wall Street greed, stricter trading regulation “could surprise us all and be the dark horse” that passes the House of Representatives quickly.
Kari S. Larsen, Energy and Derivatives Markets, Global Renewable Energy, Emissions and New Products
Joanne Ludovici-Lint was quoted in a November 30 Law360 examination of how social networking web sites are changing trademark enforcement. Although the risk of trademark infringement on such sites is great, Ms. Ludovici-Lint advises clients to be cautious in pursuing infringers. “Trademark owners have to be more careful how they go after social media users,” she said. “How a company responds can get out so quickly and will be broadcast to millions.” If a site user is just misspelling a brand, not misusing or counterfeiting it, a simple letter pointing out the error often is the best course. “I tell clients to only write what they want to see come back in public,” Ms. Ludovici-Lint said. “You don’t want to alienate your core demographic.”
Joanne Ludovici-Lint, e-Business, e-Business - IP, Intellectual Property
Terrence McMahon was quoted in The Recorder on November 23 concerning a U.S. Magistrate Judge’s reversal of his own preliminary injunction, which initially went against his client in a patent infringement case. The judge said that after more briefing by both sides he decided against issuing the injunction, leading Mr. McMahon to comment: “We said we were going to pursue this vigorously and we did. We are extremely pleased.”
Terrence P. McMahon, Intellectual Property, IP Litigation
Nancy Ross was quoted in a November 23 Chicago Tribune examination of charitable giving programs by businesses. Ms. Ross chaired McDermott’s unified United Way fundraising campaign (which also included volunteer service days), and said the thinking behind the effort was that “people at the firm would be more willing to participate if they felt they were not being asked to donate to a number of charities with every turn they took around the corner.” She emphasized the importance of giving as part of the Firm’s larger role, noting, “Even though as individuals we’re all taking hits in our salary, … relatively speaking we were in a position to be giving back much more than other people.”
Nancy G. Ross, Pro Bono & Community Service, Trial
Mary-Laura Greely was profiled in a November 20 article in Boston Business Journal that reviewed the status of women lawyers in Boston law firms. Ms. Greely she has not had major conflict between work and family obligations. “I missed some vacations, that did happen,” she observed. “There were some late nights where I had a bowl of Cheerios for dinner. But I never had the sense that I wasn’t getting support.” However, Ms. Greely also noted that many women “are caught in the cultural tailspin between the 365-days-a-year, 24-7 world today versus the world we grew up in with traditional stay-at-home moms. A lot of them … don’t know how to make it work.”
Mary-Laura Greely, Corporate, Mergers & Acquisitions
Louis DelJuidice and Paul Zagar were quoted in a November 17 Law360 story that covered their move to the Intellectual Property, Media and Technology group of McDermott's New York City office as partners in the Firm. Both had previously practiced with an IP boutique firm, Mr. DelJuidice in the high-tech sector and Mr. Zagar in biotechnology, and both said they were drawn to the full range of services that McDermott offered to their clients. Mr. DelJuidice cited "a deeper bench of people to draw from … [and] the depth of services we can provide," while Mr. Zagar looked forward to "working with not only the cross-border IP team but also the life sciences and controversy teams to continue to grow our practices" at the Firm. The story also noted that associate Shilpa Patel and scientific advisor Nicole Sullivan had also joined McDermott, both from the same firm where Messrs. DelJuidice and Zagar had practiced.
Louis J. DelJuidice, Shilpa V. Patel Ph.D., Nicole R. Sullivan Ph.D., Paul M. Zagar M.D., Intellectual Property
Thomas Conaghan was cited by the co-chair of Gunster Yoakley & Stewart’s securities and corporate governance practice, in a November 17 Law360 interview, as a lawyer outside of his own firm who had particularly impressed him. “Tom was an excellent lawyer, able to grasp the nuances of a complex deal,” he said of Mr. Conaghan. “I learned from him to be pragmatic and not waste time on inconsequential issues.”
Jerry Sokol was cited by Cataractoutsourcing.com on November 17 on the trend toward more mergers of hospitals and surgery centers. He stated that many of the mergers are aimed at increasing profitability, noting that, with the credit markets opening up and Medicare reimbursements getting squeezed more, surgery centers in particular should be looking at their merger options. Mr. Sokol added that the physician owners of such centers could consolidate the revenues of various facilities, reduce their overhead costs, minimize risks and perhaps increase distributions by means of a merger.
Jerry J. Sokol, Health, Health - M&A, Mergers & Acquisitions
M. Miller Baker was featured on November 17 by Law360 concerning his appellate practice and recent developments in appellate law. He described his approach to a typical case by saying, "After reading and rereading the briefs and cases, I reduce my case to a handful of key points.… My benchmark for successful preparation is to walk out of an argument with the feeling that I was over-prepared for it." Mr. Baker also expressed unhappiness over "the practice of some courts of appeals to simply affirm decisions below without either providing any reasoning or expressly adopting the decision of the district court as its own," and stated that the upcoming U.S. Supreme Court hearing of McDonald v. City of Chicago to determine whether the Second Amendment applies to the states is "a historic opportunity." Click here to read the full article.
M. Miller Baker, Appellate, Trial
Joseph Adams commented on November 16 for BNA Tax Management Weekly Report regarding two documents that the Internal Revenue Service (IRS) has developed to help its agents examine nonqualified plans subject to Tax Code Section 409A, including guidelines to help develop information document requests (IDRs) for cases with potential Section 409A issues during the years 2006-2008. Likening the IDRs to “an information gathering process” to identify areas of noncompliance, Mr. Adams said the IRS is possibly following the same audit development initiatives used to gauge compliance with other Code sections, namely to identify issues and common violations and to train field agents. He added his hope that the IRS audits will focus on “big ticket issues” and not “esoteric issues that minds differ” over concerning interpretation.
Joseph S. Adams, Employee Benefits & Pensions
Bobby Burchfield was quoted by the National Law Journal on November 16 concerning the appointment of Robert Bauer to be White House Counsel. Mr. Burchfield, who opposed Mr. Bauer in Bush v. Gore and other cases over the years, called him “quite a capable attorney. I don’t always agree with him. But I do respect him, and I believe he’s very able.”
Ira Mirsky was quoted by the Business Solutions Outsourcing Blog on November 11 concerning the forthcoming Internal Revenue Service detailed employment-tax examinations of some 6,000 companies beginning in February 2010. Mr. Mirsky urged any company to review their three most recent years of employment tax returns, as well as all supporting documents and records, in light of the criteria to be used in the audits. He added that “good IRS examination-management practices should be followed” by companies that are selected for an audit, including a clear chain of command for audit responses, use of outside advisers from the start of the process, and requesting additional response time when needed.
Ira B. Mirsky, Employee Benefits & Pensions
Jeffrey Reed was interviewed in a November 11 podcast by The Tax Foundation concerning the so-called "Amazon tax" case being heard by New York Superior Court. The case involves whether such online retailers as Amazon.com must collect New York sales tax, and hinges on whether such companies have representatives or affiliates in the state to establish or maintain their market presence. “When we are talking about affiliates of Amazon.com we are not talking about affiliated companies,” Mr. Reed explained. “The case involves representatives who advertise for Amazon on their own web page by linking it to Amazon’s under a contractual agreement. The legal question is whether these people are significantly associated with Amazon’s ability to establish or maintain a market presence in New York.”
Jeffrey S. Reed, State & Local Tax, Tax
Robert Weiner and Lanny Davis were quoted by China Weekly News on November 10 concerning Dongguk University’s lawsuit against Yale University for erroneously confirming a professor’s claimed credentials. Representing Dongguk, Mr. Weiner stated that the university “is shocked that Yale University … has refused to take responsibility for its negligent, reckless and, ultimately, deceitful conduct,” and criticized Yale for “engaging in a smear campaign, in an effort to blame Dongguk for the substantial damage that Yale caused Dongguk.” Mr. Davis added that he found “the misconduct that Yale’s leadership continues to engage in, and the tactics that it is using to avoid responsibility, reprehensible,” and urged the Yale Corporation “to investigate this matter fully.”
Lanny J. Davis, Robert A. Weiner, Trial
John Huang and Jeffrey Stone were quoted in a story about MWE China Law Offices that was carried by Cal Law /The Recorder on November 9. Noting the importance of Mr. Huang and Kevin Qian, co-founders the Shanghai firm that joined with McDermott to form MWE China Law Offices, Mr. Stone said of the venture, "One of the reasons other firms haven't been able to replicate this is that it's pretty hard to replicate John and Kevin." The article called MWE China “an ingenious way for an American law firm to enter local Chinese practice,” although the venture has faced a challenging market. “But, later on,” Mr. Huang stated, more and more people will see that this is the path."
Pamela Marple was quoted in a November 7 New York Times story about a state of Louisiana raid and related investigation of the New Orleans offices of the ACORN activist group. The raid was prompted by accusations of embezzlement and tax fraud. Representing ACORN, Ms. Marple said that the raid was prompted by accusations that former ACORN employees had removed or altered electronic documents and might do so in the future. She added that investigators wanted “virtually every document in the possession of ACORN and any related entity.” The story was carried in numerous other media outlets, including the AP, Yahoo News, NPR, Fox News, Time, Philadelphia Inquirer, Las Vegas Sun and Seattle Times, among others.
Harvey Freishtat was noted by The Jewish Advocate on November 6 as the recipient of the Distinguished Community Leadership Award presented by the Jewish Alliance for Law & Social Action (JALSA). The award recognizes both McDermott for its commitment to community service and dedication to justice, and Mr. Freishstat for his instrumental role in growing the Firm’s highly successful pro bono and community service program and in building a workplace environment that has overcome social barriers.
Harvey W. Freishtat, Pro Bono & Community Service
Todd Solomon was quoted on November 5 by Standard Federal Tax Reports on the domestic partner provisions of The Affordable Health Care for America act expected to be passed by the House of Representatives. The bill would extend the current exclusion for employer-provided health coverage to domestic partners and other persons eligible for coverage under the employers plan, eliminating the current treatment of domestic partner benefits as taxable income. “In addition to providing welcome relief from a significant tax burden on employees and their domestic partners,” Mr. Solomon said, “this proposal would greatly reduce an employer’s administrative burden associated with running a domestic partner benefits program as well as an employer’s payroll taxes.”
Todd A. Solomon, Employee Benefits & Pensions
John Huang was quoted in a story about the success of MWE China Law Offices that appeared in AmLaw Daily (November 3) and The American Lawyer (November 4). Co-founder of the Shanghai firm that joined with McDermott to form MWE China Law Offices in 2007, Mr. Huang said of the venture that "in a short period of time, we've caught up to the best Chinese firms." Mr. Huang called the Chinese market for legal services “very tough,” adding that, for successful firms, "you have to provide higher service. You have to deliver value." Mr. Stone commented that the Firm was lucky to recruit John and Kevin Qian to embark on the alliance with McDermott, "One of the reasons other firms haven't been able to replicate this is that it's pretty hard to replicate John and Kevin," he said.
Stephen Ryan was included in a November 2 story that appeared on Johnhopebryant.com concerning a dinner held by the Australian ambassador to the U.S. in honor of philanthropic entrepreneur John Hope Bryant and his Operation HOPE program to advance financial literacy. Mr. Ryan is a former Mid-Atlantic board chairman for Operation HOPE.
Stephen M. Ryan, Government Strategies
Jason Polevoy was listed by The Metropolitan Corporate Counsel on November 2 as one of the recipients of the Cornerstone Award presented by the Lawyers Alliance for New York. The award honors outstanding pro bono service by members of the New York legal community to New York nonprofit organizations that assist New Yorkers in need.
Jason T. Polevoy, Corporate, Pro Bono & Community Service
Joseph Robinson and Robert Schaffer were featured in a Biotech Business Week story on November 2 that covered their move to McDermott’s New York City office as partners. Both lawyers focus on patent prosecution, patent litigation and transaction work predominantly within the biotechnology and pharmaceutical industries. Similar stories also appeared in Drug Week, Biotech Week and Pharma Business Week.
Joseph R. Robinson, Robert Schaffer, Intellectual Property
Abbe Lowell was mentioned in a Bloomberg.com story (November 2) about the beginning of a corruption trial for a former New York state Senate leader. Mr. Lowell is lead co-counsel for the defendant in the trial, which is being held in U.S. District Court in Albany, NY.
Paul Melot de Beauregard was quoted in Impulse (November 2009) on the reduction of special payments to employees in times of crisis. Employers have to meet high requirements of the Federal Labour Court – a revocable or an optional payment will make a huge difference.
Paul Melot de Beauregard, Employee Benefits & Pensions, Employment - Germany, Germany
Eugene Goldman commented for CFO.com on November 1 concerning an expected increase in the intensity of Securities and Exchange Commission securities law compliance efforts. “Between the $1 billion budget [proposed for 2010] and the need to project that it’s tough, it’s reasonable to expect a pretty aggressive enforcement program” from the SEC, Mr. Goldman said. He cited as an example how the SEC is using a federal judge’s order striking down a settlement with Bank of America over the Merrill Lynch acquisition to seek more information that might result in additional charges against the bank.
Eugene I. Goldman, SEC Defense, Trial
Mary-Laura Greely was featured in an October 31 Investment Weekly News story about move to McDermott’s Boston office as a partner in the Corporate Department. Ms. Greely brings more than 20 years of sophisticated transactional practice to the Firm, as she advises private and public companies in a wide range of industries. “The Firm’s experience across such key practice areas as tax, labor and employment, employee benefits and intellectual property, as well as the Firm’s international platform, will be enormously valuable to my clients,” Ms. Greely said. “I look forward to working with this outstanding team of lawyers and having the benefit of the stellar resources they bring to bear in advising clients on both transactional matters, as well as day-to-day operations.”
Ralf Weisser was cited in Financial Times Deutschland (FTD.de) on October 31 concerning the infringement of copyrights through the internet. Collecting societies and authorities agreed on the importance of a collective rights management. Regarding this Mr. Weisser said, “Otherwise individual rights of several owners would get lost.“
Ralf Weisser, Germany, Intellectual Property
Gary Rosenbaum was quoted by CFO.com (October 15) regarding a panel he participated on. Mr. Rosenbaum advised, "If you have a loan facility that's coming due in the next year, do the lap of the smaller universe of potential lenders — and get out early." He noted that "the world of lenders has shrunk," attributing developments such as the increase of big bank mergers and the disappearance of Collateralized Loan Obligations. He said that corporate executives should look at their prior arrangements to find out if the covenants on three-year or five-year credit facilities arranged before the financial crisis are still accurate. Mr. Rosenbaum agreed with other panelists that corporations should work harder to sell themselves as acceptable risks to their bankers. "If you as a borrower can't present a package to your lender that has that kind of necessary detail, it's going to be harder for the lender to get his or her superiors to approve it," he said.
Gary B. Rosenbaum, Corporate, Finance & Banking, Private Equity
Jean Marie Pechette was cited by AmLaw Daily’s “The Churn” on October 23 for joining McDermott’s Chicago office as a partner in the Health Law Department. Ms. Pechette was previously with Kelley Drye & Warren.
Jean Marie R. Pechette, Health
Robert Weiner and Lanny Davis were quoted in an October 30 New York Times story about a federal court lawsuit by South Korea’s Dongguk University against Yale University for erroneously confirming a Dongguk professor’s claims of receiving a Yale Ph.D. Mr. Weiner, lead attorney for Dongguk, said that Yale’s persistent denial that it had done anything wrong despite the scandal that the false credentials caused in Korea shows “the cultural arrogance of not recognizing the harm you’re doing in Korean culture,” adding that “the documents we have prove that Yale was not only grossly negligent, but lied once they knew the truth.” Mr. Davis added that the university and its president had “dishonored the slogan ‘light and truth’” that can be found in Latin on Yale’s seal. The Business Insider.com carried a condensed version of the article on November 2.
Lanny J. Davis, Robert A. Weiner, Trial
Elizabeth Erickson and Ira Mirsky are co-authors of an article concerning tax rules for employment settlements that appeared October 29 on Employersweb.com. The authors note that, after settlement of an employee lawsuit against a company, “there is a major responsibility that inevitably involves personnel and compensation staff: administering the appropriate tax rules.” A settlement or award can be taxable income to the employee or former employee who made the claim, meaning that the company must issue appropriate tax documentation. The authors describe the complexity of the process for determining taxability, and offer suggestions on how companies can determine the correct tax treatment of employment-related settlement payments.
Elizabeth Erickson, Ira B. Mirsky, Employee Benefits & Pensions, Trial
Brooks Gruemmer was quoted in an October 28 National Law Journal story recognizing the lawyers who were involved in completing the Tribune Company’s sale of the Chicago Cubs baseball team to the Ricketts family. Mr. Gruemmer led McDermott’s work on the deal for the Tribune Company, and said, “It was a complex structure in a tough transactional environment.”
Ira Mirsky was quoted by Human Resource Executive Online on October 28 concerning a planned IRS National Research Program (NRP) to assess companies’ employment tax compliance. Mr. Mirsky advises companies to prepare by assessing their current payroll practices and their past three years of employment tax returns “with a specific focus on the fine areas identified by the NRP initiative, as well as any other known areas of weakness.” If a company is audited as part of the NRP, Mr. Mirsky suggests that “good IRS examination-management practices should be followed,” such as having a clear chain of command for responses to the IRS, using outside advisers early in the process, and asking for more time when needed to respond.
Ira B. Mirsky, Employee Benefits & Pensions
Jason Polevoy was mentioned by the New York Law Journal on October 27 as one of eight individual lawyers to receive the Lawyers Alliance for New York’s 2009 Cornerstone Award. The award recognizes pro bono legal aid to nonprofit groups working to improve low-income neighborhoods in New York City.
Jason T. Polevoy, Corporate, Pro Bono & Community Service
McDermott Will & Emery was cited in the October 27 New York Law Journal as a recipient of the Pro Bono Champion Award from The Door, a New York City youth development agency. The award recognizes law firms providing pro bono services to disadvantaged New York City youth, and McDermott was one of two firms honored by The Door.
James Shein was quoted by The Distressed Debt Report on October 27 concerning the trend by lenders to push distressed companies into early restructurings. “Necessity and fear” are driving this trend, Mr. Shein said. “Necessity, because companies are being cut off from capital more than in previous recessions. Fear, because nobody knows how long or how deep the recession will be.” Mr. Shein likened the worsening plight of companies in poor financial health to that of a skier going down an increasingly steep hill, with the last stages of a company’s decline being like a nearly vertical slope. “At that point,” he added, “it takes an unbelievable yeoman’s effort to put it back together.”
James B. Shein, Corporate, Restructuring & Insolvency
David Cifrino was quoted by Law360 on October 27 on the slow adoption of electronic shareholder communication forums, despite SEC rule changes meant to remove company concerns about liability for postings in such forums. Mr. Cifrino noted that the rule changes still have not assuaged most companies’ wariness about such chat rooms, saying that “[T]here are likely too many concerns about the possibility of inadvertent, insufficiently disseminated disclosures of material nonpublic information for the vast majority of public companies to feel comfortable pushing the envelope in this area.”
David A. Cifrino PC, Corporate
Douglas Mancino wrote about Halloween safety for the Los Angeles Daily News on October 27. “Halloween costumes made of flammable material and holiday decorations can easily ignite if they come into contact with candles or lit jack-o-lanterns,” he warned. Costumes and wigs should be flame resistant or retardant, and candles and lit pumpkins should always be carefully attended. “Halloween is a wonderful time of year for parents to practice stop-drop-and-roll with children in case their costumes catch on fire, and review how to call 911” Mr. Mancino added. “Parents should also ensure that smoke detectors are working, review the family home escape plan, and instruct children on how to locate the exits at a party in case of an emergency.”
Amandeep Sidhu was quoted by The Blog of Legal Times on October 26 for his successful representation of a Sikh-American medical officer admitted to active service with the U.S. Army. Although the admission of the officer without requiring removal of his religiously mandated turban and beard was an individual decision, Mr. Sidhu stated that “the goal was to change the policy to allow all Sikhs to serve in the U.S. armed services,” adding that army representatives “have indicated that they realize the policy issue remains and they need to turn their attention to this issue.” Noting that Congress in 1987 exempted neat and conservative religious garments from its ban on religious expression among soldiers, Mr. Sidhu said, “Our argument has been that the army has been ignoring congressional intent for 22 years. This may not be something that requires any additional legislative change.”
Amandeep S. Sidhu, Pro Bono & Community Service, Trial
Amandeep Sidhu’s role in securing the admission of a Sikh-American medical officer into active service with the U.S. Army was recognized in an October 23 Reuters dispatch that appeared in the Washington Times, Post Chronicle, BizJournals, India Times and Yahoo News. The officer was allowed to maintain is religiously mandated turban and beard, ending a 23-year policy that excluded Sikhs from service. “[W]e have steadfastly asserted that our clients’ religious requirements in no way hinder their ability to serve our nation,” said Mr. Sidhu, who represented the officer in conjunction with the Sikh Coalition. “We are deeply impressed with the Army’s forward-thinking approach in allowing our client to serve with his turban and beard, and we now call upon the Army to consider amendments to its uniform policy that continues to close the doors to other Sikh-Americans from serving in the U.S. Army.”
Amandeep S. Sidhu, Pro Bono & Community Service, Trial
Joseph Robinson and Robert Schaffer were featured in an October 21 Law360 story about their joining McDermott from IP boutique firm Darby & Darby. Both new partners are respected patent litigators with 20 years of experience in the New York market. In addition, Mr. Robinson has strong international experience, while Mr. Shaffer handles patent and trademark portfolios for major corporate and technology clients. Sarah Columbia, vice chair of the Firm’s IP group, called the addition of the two lawyers “a brilliant catch,” and expects them to expand their McDermott work beyond just IP.
Sarah Chapin Columbia, Joseph R. Robinson, Robert Schaffer, Intellectual Property
Gregory Mocek was quoted by the Houston Chronicle on October 21 concerning the impact of efforts by Congress and regulators to put tighter restrictions on energy and commodities trading. Mr. Mocek said he doubts congressional efforts to force other countries with major commodity trading markets to apply similar restrictive rules would work. “Last I looked, other than on one tax issue, Switzerland is not doing much to pay attention to what Congress demands,” he noted, adding that Singapore, another active trading location, also seems unlikely to heed U.S. rules.
Gregory Mocek, Energy - Regulatory and Compliance Advice, Energy and Derivatives Markets, Government Strategies
David Ivill was quoted by Crain’s Health Pulse in an October 20 story about litigation decisions that will enable New York State teaching hospitals to get refunds of FICA taxes that they had paid on medical residents’ stipends. McDermott represented two hospitals that won their challenges against the IRS in the Second Circuit Court, which upheld the student tax exemption for residents and their hospital employers. “The Second Circuit cases should help us shake loose settlements for the taxpayers” covered by the decision, noted Mr. Ivill, who worked on the cases with McDermott partner Thomas Sykes.
David S. Ivill, Thomas D. Sykes, Health, Nonprofit Organizations
Kari Larsen discussed for Bloomberg.com on October 19 the implications of pending Congressional legislation on the trading of energy and carbon derivatives. She stated that the Waxman-Markey bill passed by the House contains “unclear and overlapping” regulatory provisions that make private trading of such derivatives unlikely, adding that the bill would impose tighter controls on carbon trading than would a bill passed by a Senate financial services panel to regulate all derivatives trading. “It’s too early to tell whether the Senate will adopt the effective over-the-counter trade prohibition included in the Waxman-Markey bill or decide that not all of these products are suited to being traded on-exchange,” Ms. Larsen said. “It would be ideal if the broader reforms for derivatives trading and the carbon market regulations were consistently drafted.”
Kari S. Larsen, Energy and Derivatives Markets, Global Renewable Energy, Emissions and New Products
Art Rosen was featured in State Tax Notes (October 19) focusing on current state tax trends. A key issue for Mr. Rosen is "working to encourage Congress to pass BATSA." The BATSA would create a bright-line test to determine when an out-of-state business must pay taxes to a state jurisdiction. "There's considerable logic for congressional support of the legislation," said Mr. Rosen. "Income taxes are supposed to be imposed where a company earns its income - where its capital and labor are located. Income is earned where a company has property and payroll. It makes no sense to try to attribute income to other states simply because you have sales there." The issue impacts everything from e-commerce to international sales, and although there is a strong case for greater tax treatment uniformity. Mr. Rosen noted that "states balk when they have to make significant changes to achieve real uniformity."
Arthur R. Rosen, State & Local Tax, Tax
Mary-Laura Greely was featured by Law360 on October 15, and noted by both the AmLaw Daily and by peHUB on October 16, for joining the Firm’s Boston office as a partner in the Corporate Department. “I am confident that McDermott’s many strengths as a full-service firm will powerfully resonate with my clients” in manufacturing, health care, financial services and consumer products, Ms. Greely stated. She has more than 20 years of experience in mergers and acquisitions, venture capital, private equity, corporate governance and commercial lending.
Michael Peregrine addressed compliance issues affecting corporate boards during a panel discussion at the Advanced Medical Technology Association’s annual meeting, reported by Health Care Daily Report on October 15. Mr. Peregrine noted that it is a challenge for companies to meet compliance goals in the current economic environment, adding that “there is an enormous reality gap” between how board members see their companies’ compliance performance and what the government thinks it should be. He also noted that, because individual board members may ultimately be held responsible for compliance violations, the potential liability may prompt boards to insist on better compliance programs.
Michael W. Peregrine, Corporate Responsibility and Governance
Bernadette Broccolo discussed conflict of interest (COI) concerns for university technology transfer offices (TTOs) in the September 2009 issue of Technology Transfer Tactics. She noted that, particularly in medical research, TTOs must integrate with university compliance officers to ensure that there is no appearance of financial conflicts from consulting arrangements, research grants, company interests, reimbursement, and similar issues. These are "looked at individually and in the aggregate" by regulators, industry associations and the media, Ms. Broccolo stated, "particularly when you're talking about several relationships in the same entity." COI concerns arising from any financial relationship are "variations on a common theme," she added, and COI programs "should not stop with reporting, as so many have done in practice," but instead should actively identify potential problems and monitor compliance throughout the life of a project.
Bernadette M. Broccolo, Conflicts of Interest - Health, Health
Eric Hagen was pictured in The Alliance for Children’s Rights e-newsletter (Summer 2009), recognizing his pro bono participation in the Summer Adoption Day program of The Alliance for Children’s Rights.
Eric W. Hagen, Intellectual Property, Pro Bono & Community Service
Hugh Nineham was recognized in a number of media outlets for his appointment to head McDermott’s London office. Succeeding Doron Ezickson, who returns to full-time practice as leader of the Firm’s international energy and commodities practice, Mr. Nineham stated, “I look forward to continuing Doron’s work to highlight the development and integration of the London practices with others across the Firm, and to focus on the areas that are key to us …” Covering the announcement on October 9 were “The Churn” feature of AmLaw Daily, Law and More and The Lawyer.
Doron F. Ezickson, Hugh Nineham, Corporate, Government Strategies, London
H. Guy Collier was pictured and discussed in an October 8 LegalBisnow story covering a Children’s Law Center function honoring Attorney General Eric Holder. The story noted that Mr. Collier is incoming chairman of the Center, and that he gave an impressive presentation describing the Center’s innovative medical-legal access program. The program identifies children receiving pediatric services who may also need legal help and connects them with the Center’s attorneys or staff members.
H. Guy Collier, Pro Bono & Community Service
Dennis White was quoted by Boardmember.com on October 8 in an examination of what company director and officer (D&O) liability insurance policies may or may not cover. “Many lawyers don’t fully understand the intricacies” of such policies, Mr. White stated, adding that he sees many directors and officers who “hold all too common a misconception that D&O insurance policies are standard. Nothing can be further from the truth.” One proactive strategy that Mr. White suggested is reviewing the indemnification provision in the company’s charter documents. “The charter [often] goes back 10 or 20 years and is not necessarily updated,” he warned. “Be sure the corporate charter provides indemnification to the maximum amount allowed by law.”
Andrew Liazos spoke with Boardmember.com on October 7, warning that corporate board members need to prepare now for pending legislation in the House of Representatives that would give shareholders a vote on pay for top executives at all U.S. public companies. Mr. Liazos suggested that directors find out how management is preparing for this change by asking what the strategy is for handling shareholder communication and disclosure issues. Also, he added, board members should make sure their companies are aligning pay with performance, and jettisoning any poor pay practices that do not emphasize such an alignment. A key risk management consideration is that executives should be compensated for enhancing long-term shareholder value.
Andrew C. Liazos, Employee Benefits & Pensions, Executive Compensation
David A. Cifrino was quoted by Boardmember.com on October 7 regarding the concerns that potential government involvement in management oversight pose for members of corporate boards. “There are lots of bills pending [in Congress]” concerning not only governance, but also healthcare, financial reform, labor management, climate change, and energy, Mr. Cifrino stated. “Directors need to ask about legislation and how it will impact their company.” He added that another concern for board members should be the liquidity of their companies. “Boards should push management to explain what’s the plan now,” he declared. “Develop a strategy to deal with retooling the balance sheet, do what you can to assure liquidity. It’s all about cash generation.”
David A. Cifrino PC, Corporate, Corporate Responsibility and Governance
David Hanselman was quoted in an October 5 Modern Healthcare story about a federal judge’s denial of class action status for a lawsuit by 19,000 Chicago area nurses who alleged that hospitals conspired to depress their wages. The judge held that granting class status based on an “average loss” theory would obscure the wide differences in pay and circumstances among individuals, leading Mr. Hanselman (who represented one of the hospital defendants) to comment: “District judges can no longer rubber-stamp the opinions of plaintiff’s experts at the class certification stage.” Click here to read the full article.
David L. Hanselman Jr., Antitrust & Competition, Class Action, Health Care Litigation, Trial
Gregory Mocek was interviewed on October 5 by CNBC's "Squawk Box Europe" about how the financial crisis has changed government attitudes toward commodity trading. "What you are seeing now is that commodity swaps are being bunched together with credit default swaps, as Washington attempts to curtail any number of trading activities," Mr. Mocek stated. He rejected claims that the Commodity Futures Trading Commission is a "toothless tiger," saying that "nothing could be further from the truth – in the past eight years the Division of Enforcement has assessed over $2.5 billion" in penalties. The big question, Mr. Mocek noted, is on excessive speculation: "The CFTC has a mandate to curb it, but there is no scientific evidence that it exists, and many studies of it are contradictory." Ultimately, he believes, the issue of greater regulation will come down to deciding "how much is too much when it comes to the commodity trading of exchange traded funds and index funds."
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Gregory Mocek was quoted by the Financial Times/FT.com in an October 4 story about draft Congressional legislation to regulate the over-the-counter derivatives markets. Noting that the legislation now contains a provision that the requirement for centralized clearing of OTC swaps would not apply if one of the counterparties to the swap is not a swap dealer or major swaps participant, Mr. Mocek stated that, “This clearly reflects some of the more practical changes that the natural corporate hedgers have lobbied for since the Treasury proposal came out.”
Gregory Mocek, Government Strategies
Todd Solomon was cited in an October 3 New York Times story on the long-term additional cost that gay couples face for health care and medical benefits. With regard to the tax implications of domestic partner benefit coverage, Mr. Solomon noted that a nondependent partner’s coverage is taxable income, and that pre-tax dollars cannot be used to pay the premiums for coverage.
Todd A. Solomon, Employee Benefits & Pensions
David Hanselman was quoted by Global Competition Review on October 2 concerning U.S. District Court Judge John Grady’s refusal to grant certification to a lawsuit by Chicago area nurses alleging that several hospitals conspired to suppress their pay. Mr. Hanselman identified the Judge’s rejection of averages to determine class-wide antitrust impact as the key to the decision. “In this case the [plaintiffs’] expert had used an econometric model that had used a single average percentage of wage suppression,” Mr. Hanselman stated. “The judge was highly critical of the use of averages because it does not show whether each class member had suffered an antitrust injury.” Click here to read the full article.
David L. Hanselman Jr., Antitrust & Competition, Class Action, Health Care Litigation, Trial
Eric Zimmerman discussed how to influence the outcome of Centers for Medicare and Medicaid Services (CMS) regulations in an October 2 story by BNA’s Medicare Report. Noting that there are “many other points of entry” beyond the obvious of submitting comments and engaging Congress on rulemaking, Mr. Zimmerman advised contacting the right people at CMS even before the rulemaking process is too far developed. He recommended meeting with staff at all levels – career policy, senior political leadership, at the office of the secretary, and the office of the general counsel.
McDermott was cited by The Boston Bar Association (October 2009) for having “provided extraordinary pro bono support and resources” to help The Children’s Law Center of Massachusetts complete a recently released study on the impact of the state’s requirement that juvenile offenders convicted of murder receive a life sentence without parole. The Firm’s two-year collaboration with The Children’s Law Center on this project has received both the Massachusetts Bar Association Access to Justice Award and the Citizens for Juvenile Justice 2008 Leadership Award.
Melissa Nott Davis, Pro Bono & Community Service
Former White House Special Counsel Lanny Davis and veteran journalist Eileen O’Connor were mentioned in the National Law Journal (October 1), among other publications, for joining McDermott Will & Emery as part of the Regulatory & Government Strategies Practice Group. Mr. Davis and Ms. O’Connor will focus their practice on litigation and related media strategies and will also advise clients on crisis management linked to public policy and regulatory issues.
Lanny J. Davis, Eileen M. O'Connor, Government Strategies
Domingo Such was quoted in William Blair & Company’s Client Focus (third quarter 2009) concerning the wealth transfer opportunities afforded by the current economic environment to strengthen estate plans. He noted that, with many asset values well below their highs, placing assets in new grantor retained annuity trusts and charitable lead annuity trusts will allow them to appreciate faster than the “hurdle rate” that is tied to today’s extremely low interest rates. “It’s a wonderful time to transfer assets” to these and other trusts, Mr. Such said, because of the current potential to minimize transfer taxes. He also suggested that investors take advantage of the gift tax annual exclusion for gifts to an unlimited number of recipients in 2009.
Domingo P. Such III, Private Client
Deanna Newcomb was mentioned in the October 2009 issue of Futures Magazine, which noted that she has joined McDermott as an energy and derivatives markets analyst. Previously she was first vice president, compliance, for Bank of America/Merrill Lynch Commodities, Inc.
Deanna L. Newcomb, Energy and Derivatives Markets
Lanny Davis and Eileen O’Connor were mentioned in business, legal and political media for joining McDermott as, respectively, partner and counsel in the government strategies group. Both will focus on litigation, media and crisis management strategies involving regulation and public policy. Mr. Davis was formerly Special Counsel to President Clinton, and Ms. O’Connor is a veteran journalist with ABC and CNN. Coverage included American Lawyer, Blog of the Legal Times, CNBC,Corridor Inc., The Hill, JDJournal.com, Politico, Triangle Business Journal and Washington Business Journal (all October 1), as well as the Washington Post and Washington Times (both October 5).
Lanny J. Davis, Eileen M. O'Connor, Government Strategies
The National Law Journal quoted David Hanselman (October 1) concerning a Chicago federal court decision that denied class certification to a group of nurses who had alleged that hospitals had conspired to depress their wages. The Illinois plaintiffs sought over $1 billion in lost wage claims, but U.S. District Court Judge John Grady held that they did not demonstrate that common questions of law or fact predominated. Mr. Hanselman, who represented one of the hospitals, called the decision "a significant victory for the defendants because often in class actions the denial of class certification sounds the death knell of the litigation." He also represents defendants in several similar cases being heard in other federal courts, "We are hopeful that Judge Grady's well-reasoned opinion has persuasive impact on those courts." Click here to read the full article.
David L. Hanselman Jr., Antitrust & Competition, Class Action, Health Care Litigation, Trial
David Hanselman was noted by West’s Andrews Litigation Reporter – Antitrust in October 2009 as counsel for one of several Chicago area hospitals in a federal antitrust case where the court denied class certification to a group of nurses that alleged a conspiracy by the hospitals to keep wages low. Mr. Hanselman said the ruling may provide guidance in nurse wage-fixing class actions pending in federal courts in New York, Michigan, Tennessee and Texas, adding that the ruling shows that courts beyond the Third Circuit are looking to the “rigorous analysis” standard of In re Hydrogen Peroxide Antitrust Litigation when making class certification rulings.
David L. Hanselman Jr., Antitrust & Competition, Class Action, Health Care Litigation, Trial
M. Soledad Galmarini spoke in the September 2009 issue of Chicago Lawyer about her experience in Northwestern University School of Law’s International Team Project program to familiarize law school students with international cultures. Ms. Galmarini visited South Africa and Vietnam as a participant in the program while at Northwestern, and she emphasized her appreciation for her involvement. “It’s a very real world experience in terms of what you’re learning,” she said. “As opposed to interpreting cases that have been in the law books for years, decades, you’re interpreting current events – laws, and what’s going on today.”
Shelia Walcoff is quoted in a September 30 Genomeweb.com story concerning a California bill seeking to legally set apart consumer genomics firms from clinical laboratories. Ms. Walcoff believes that the language in SB 420 could have implications for the bioinformatics field. As she noted, consumer genomics “is a new industry, and should California statutorily define and regulate it in a new or different manner, it could, at least at the state level, have an unanticipated impact on the regulatory requirements for the broader bioinformatics industry.”
Sheila D. Walcoff, Government Strategies, Life Sciences & Medical Devices
Edward Leibensperger was noted in a September 30 story on the Children’s Rights web site (www.childrensrights.org) for his role in reforming the troubled Michigan child welfare system. Mr. Leibensperger was counsel for Children’s Rights in filing the Dwayne B. v. Granholm child welfare reform class action lawsuit in August 2006, which two years later resulted in a sweeping settlement agreement that was signed by Michigan Governor Jennifer Granholm and subsequently approved in federal court.
Edward P. Leibensperger, Class Action, Trial
David Cifrino was cited in a September 2009 CFO Magazine story about companies that use the Twitter social networking site for communication. He urged the creation of effective policies that clearly state who has authority to speak on behalf of companies, particularly publicly held ones that are subject to Regulation FD’s requirements about disclosing material, non-public information. Mr. Cifrino suggested that, given the potential liability of disclosure problems, companies should only use Twitter if there is a compelling business reason for doing so.
David A. Cifrino PC, Corporate
Leigh Martinson was quoted in a September 29 Law.com examination of the increasing amount of time required by the Patent & Trademark Office Appeals Board to resolve patent filing appeals. Mr. Martinson cited the problems that such long timeframes can cause, saying that while waiting for an appeal to be resolved, “You could get a change in the law that affects the arguments that you’ve made. You could get a new ground of rejection that you hadn’t faced before.” He added that such developments could send the case back to the examiner, with the result that a possible new rejection would mean another appeal. Mr. Martinson provided similar comments to the Broward Daily Business Review on September 30.
Leigh J. Martinson, Intellectual Property
David Hanselman, Jr., spoke to Law360 on September 29 about a federal judge’s denial of class certification to a group of nurses who alleged that four Chicago area hospital systems violated antitrust law by colluding to suppress the nurses’ wages. The judge ruled that the plaintiffs did not have a viable method of showing classwide injury, which Mr. Hanselman, who represented one of the hospital systems, said “constitutes the death knell” for the litigation. “I can’t say that this effectively ends the case because plaintiffs’ lawyers can be creative,” he noted, “but it certainly is a significant blow to the plaintiffs’ case, and we’ll be anxious to see what they do from here.” Click here to read the full article.
David L. Hanselman Jr., Antitrust & Competition, Class Action, Health, Health Care Litigation, Trial
Matthew Jacobs was mentioned in a September 24 story on Law.com concerning a health care fraud trial involving a biotechnology company in U.S. District Court for the Northern District of California. Mr. Jacobs represents the company's former head of sales and marketing. After McDermott attained immunity from prosecution, the client was one of the major witnesses at the trial, which recently ended in a conviction of the defendant.
Joel Michaels was quoted in a September 24 American University American Today summary of a panel discussion, held at the Washington College of law, which discussed the health care reform debate. Mr. Michaels discussed the political opposition that the issue has generated, and noted, “When you talk about the public option, people say this is the government’s first step into creating a national health care system, and we don’t like it.”
Nancy Ross was quoted in Chicago Lawyer’s blog, Around the Water Cooler, on September 23 regarding the four Day of Caring projects that the Firm has participated in with United Way of Metropolitan Chicago. One project that McDermott volunteers participated in was to bag and distribute food, delivered by the Greater Chicago Food Depository, to the North Lawndale YMCA. “It was just a wonderful feeling,” Ms. Ross said. “We were able to look them in the eye and provide them with their groceries. It was a terrific feeling of giving back to the community and providing our actual physical labor and assistance.” Ms. Ross continued, “The feedback has been terrific, but the reward for doing it is just tremendous.”
Nancy G. Ross, Pro Bono & Community Service
Jonathan Flynn was quoted in Law360 (September 22) regarding international efforts to regulate carbon emissions and other environmental issues. In June 2009 the U.S. House of Representatives passed the American Clean Energy and Security Act which proposes national renewable energy, efficiency and greenhouse gas emission standards as well as a cap-and-trade system to control carbon emissions. Now, the U.S. Senate is back to work on climate change legislation. However, there are still questions as to how the U.S. will enforce, measure and regulate these measures, particularly with respect to international trade and competitiveness. Mr. Flynn commented, "U.S. importers and exporters could see reams of new regulations, many of which remain up to the EPA’s and customs officials' discretion." He added, "Questions will be asked at every level on every product."
Jonathan H. Flynn, Energy and Derivatives Markets, Global Renewable Energy, Emissions and New Products
Raquel “Rocky” Rodriguez was quoted in a September 22 Broward Daily Business Review story about Florida governor Charlie Crist’s use of shadow panels to help him vet judicial appointments. Ms. Rodriguez, who was general counsel to former Florida governor Jeb Bush in his second term, noted that Mr. Bush sometimes relied on guidance from outside attorneys to make judicial selections. “They were people who knew the governor and what he was looking for,” such as strong legal background and belief in the separation of powers, she stated. Ms. Rodriguez added that Mr. Bush personally interviewed all nominees given to him to fill court vacancies.
Jonathan Boyles was quoted by Standard Federal Tax Reports on September 17 concerning new Internal Revenue Service procedures by which multiemployer plans that have critical financial problems can request automatic revocation of a Section 204 election to freeze funded status. IRS guidance formerly did not address whether plan sponsors could revisit their previous elections, and the new rules allow such an election to be revoked, but not revised. “The new guidance will allow plan sponsors additional time to consider their elections,” Mr. Boyles stated, “although the time for revoking the election is limited.”
Jonathan J. Boyles, Employee Benefits & Pensions
Michael Peregrine was quoted in The Wall Street Journal’s Health Blog (September 16) concerning Sen. Max Baucus’ healthcare overhaul. Nonprofit hospitals are relieved that Sen. Baucus doesn’t include an excise-tax measure that had been recently contemplated for hospitals not offering enough charity care. “What the Baucus Bill proposes is a supplement to, rather than a replacement of, the community benefit standard and without the controversial excise tax and minimum patient charity care standards originally proposed by Senate Finance last May,” said Mr. Peregrine.
Michael W. Peregrine, Health, Nonprofit Organizations
Arthur Rosen was quoted by Sales & Use Tax Monitor on September 15 concerning possible state efforts to apply sales tax to legal service bills. He noted that if details can be worked out on who the billing attorney is and where the service was provided, “then the tax is administrable. Whether it is a good idea or not is really another question.” From the government’s standpoint, Mr. Rosen added, “If you’re looking to tax every service and expand the [tax] base, then I don’t see why you wouldn’t tax legal services … If all services should be taxed, then attorney services should be, too. We’re not all that special.”
Arthur R. Rosen, State & Local Tax, Tax
Jennifer Chen was profiled in a September 15 Law360 story about her return to McDermott after five years as patent and licensing counsel in Tokyo for electronics giant Hitachi. Ms. Chen, who had been in the Washington, DC office and is now a partner in the Firm’s Silicon Valley office, will focus on patent licensing and asset management matters. Noting that “McDermott has a global practice,” she stated that “I believe my in-house experience, which involved working with regional and multinational technology companies in Asia, the United States and the European Union, fits McDermott’s current and future plans.”
Jennifer C. Chen, Intellectual Property
J. Peter Rich spoke at length to HealthLeaders Media on September 15 regarding disruptive physician treatment of staff members. "In some cases the physicians are good at dealing with patients," he noted, "but when it comes to staff they can't keep their temper and they don't know how to treat people properly." Mr. Rich recommends that provider organizations hiring new physicians do a full due diligence screening of their past work history for signs of disruptive behavior. "It's easier to keep out a disruptive physician than to keep one out," he asserted. He also recommended writing into physician contracts that failure "to act in a civil manner toward colleagues, patients and others" is grounds for termination. Should there be disruptive behavior, Mr. Rich advised creating signed, dated documentation of it. "If this is a pattern that needs to be dealt with, it is important to have a paper trail," he said.
Robin Greenhouse was quoted by Compliance Week on September 15 concerning the First Circuit’s ruling in U.S. v. Textron, which reduced work product protection for documents in tax litigation. Ms. Greenhouse noted that other Circuit Courts have generally afforded tax accrual work papers more protection, but companies generating them should still take protections. “Companies need to look at how they prepare their tax accrual work papers to satisfy the FIN 48 requirement,” she stated. “They obviously need to meet the requirement, but not put more in those papers than is required.”
Paul Devinsky and Robert Walters were featured in Law360 (September 15) examining the unique procedures for U.S. ITC cases. Compared to patent litigation in U.S. district courts, Mr. Walters said, ITC proceedings move much quicker: "There's an extremely short discovery period, and you get to the trial very quickly. None of the [district courts] will get you to trial that quickly." Mr. Devinsky added that ITC complaints must be much more detailed than those filed in federal court. "A very well prepared team for a district court case would be a very poorly prepared team for an ITC case," he observed," adding that if there is not sufficient documentation when seeking to bar a class of product imports, "your chance of getting a general exclusion order diminishes to near zero." In short, Mr. Devinsky said, lawyers who approach ITC cases like district court ones "are going to find themselves in some difficult spots."
Paul Devinsky, Robert J. Walters, Intellectual Property, International Trade Commission, IP Litigation
Kari Larsen was quoted in a September 15 Platt’s Megawatt Daily story on a recent Commodity Futures Trading Commission (CFTC) move to oversee a cash carbon dioxide contract traded on the Chicago Climate Exchange (CCX). “I think there’s no doubt this is a flexing of regulatory muscle and sticking a flag in the ground in the cash carbon market,” said Ms. Larsen, a former counsel with the CFTC’s Enforcement Division. She added that while some may question the CFTC’s authority to regulate trading of a contract on an exempt commercial market (ECM), the agency itself “would argue that if it’s traded on an ECM they can look at what’s traded on ECMs. Since CCX is an ECM, that’s their jurisdiction.”
Kari S. Larsen, Energy and Derivatives Markets
Thomas Conaghan was quoted in a September 14 Dow Jones News Service story (also carried by MarketWatch) that discussed the increased pressures on corporate compensation committee members by activists who allege excessive executive pay. One compensation practice that activists may target is the practice of granting big stock option awards each year to executives who already own substantial stakes in a company. “Comp committees may think more before doing that,” Mr. Conaghan said.
Robert Schreck and John Tamisiea were both quoted in a September 11 Law360 story about the implications of a possible upturn in hostile takeover activity as the economy improves. Mr. Tamisiea recommended that board members be fully up to date on activities in their company’s industry and by competitors, in order to better assess a potential takeover threat. “You really need to know the risk profile of a company in order to know how to respond” to a hostile offer, he asserted. There are certain steps that companies can consider to protect against a hostile bid, such as instituting a shareholder rights plan, but Mr. Schreck warned that a sudden adoption can spotlight an impending threat. “It looks bad if you do it when storm clouds are on the horizon,” he observed.
Robert A. Schreck PC, John P. Tamisiea, Corporate
Martyn Gowar and Andrew Vergunst were mentioned in The AmLaw Daily (September 11) for joining McDermott and establishing a new private client practice group in the Firm’s London Office. Mr. Gowar was formerly with Lawrence Graham, and Mr. Vergunst had been with Maitland.
International Private Client, Private Client
Doron Ezickson, Martyn Gowar and Andrew Vergunst were mentioned in The Lawyer (September 11) regarding the launch of a London private client practice that will align with the services the U.S. offices are providing. Mr. Ezickson commented, “Our view is that private wealth is increasingly a global business and we’re a leader in the U.S. and internationally.” He continued, “We think it makes sense to serve our clients from both sides of the Atlantic. The two places where the law is most accommodating of [the necessary] vehicles are New York City and London.”
Doron F. Ezickson, International Private Client, Private Client
Dennis White was cited in a Plain Dealer story also carried on Dow Jones Factiva (September 10) concerning a two-day conference of six Midwest chapters of the Association for Corporate Growth. The conference brought together executives from private equity firms and investment banks, and Mr. White, global chairman of ACG, said that generating leads on private equity transactions was one purpose of the gathering.
Dennis J. White, Corporate, Private Equity
Peter Kreindler was cited in the New York Law Journal (September 10), The AmLaw Daily (September 11) and the Washington Business Journal (September 14) for joining McDermott as senior counsel, practicing in the Firm’s New York City and Washington, DC offices. Formerly senior vice president and general counsel at Honeywell International, where he was responsible for all the company’s legal affairs, Mr. Kreindler will focus his practice on strategic litigation management, internal investigations and corporate crisis management.
Peter M. Kreindler, Corporate, Trial
Henry Christensen, Martyn Gowar and Andrew Vergunst were featured in the Times Online (September 10) regarding their move to McDermott build an international private client practice. Mr. Christensen said, "For many clients, international estate planning is a key concern. The addition of Martyn and Andrew to the team means that McDermott is now the first major US firm to put in place an international private client team in London."
Henry Christensen III, International Private Client, Private Client
Martyn Gowar and Andrew Vergunst were featured in Legal Week (September 10) regarding their move to McDermott to launch a private client practice in the Firm’s London office. Doron Ezickson commented, “In recent months we have been focusing our efforts on building the London practice with high-calibre partners in our key areas of strength. Private wealth has become a global business and it makes sense to serve clients on both sides of the Atlantic.”
Doron F. Ezickson, International Private Client, Private Client
Scott Clark discussed for the Houston Business Journal (September 7) the intellectual property impact that the push for renewable energy sources will have on energy technology. He stated that “because renewable energy from wind, solar and tidal energy is intermittent, it poses reliability challenges to grid operators” who will face “a unique set of intellectual property challenges … as new technologies are developed to integrate renewable energy generation and transmission.” Mr. Clark added that renewable energy projects also “will need to evaluate potential patent infringement risks, which may be resolved through appropriate licensing agreements.”
Scott W. Clark, Intellectual Property, Life Sciences - IP
David Cifrino was featured in an article on CorporateBoardMember.com (September 3) regarding board members and the concerns they face heading into 2010. Government involvement is one of the major concerns for boards. Mr. Cifrino commented, “There are lots of bills pending. Directors need to ask about legislation and how it will impact their company.” Economic uncertainties and preparing for the future are also among concerns for board members. Mr. Cifrino noted that cash is crucial during these uncertain economic times. “Companies need to be vigilant about liquidity. I find that [public] companies need to be proactive in ensuring liquidity for their companies. Lenders are not in a mood to be generous in terms of lending. Boards should push management to explain what’s the plan now. Develop a strategy to deal with retooling the balance sheet, do what you can to assure liquidity. It’s all about cash generation,” he said.
David A. Cifrino PC, Corporate
Gregory Mocek was quoted by Reuters on September 3 concerning the effect of the Commodity Futures Trading Commission’s push for stricter position limits on energy futures contracts. The CFTC’s action has pushed some vendors to scale back their exchange-traded products for fear of violating limits, and Mr. Mocek believes that “if CFTC continues its pursuit to crack down on exchange-traded funds and index funds, we can assume that, although they’ll still exist, their size will be dramatically reduced.” He added that this would be a negative, because exchange-traded products are an important source of liquidity in commodity markets.
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Robert Zelnick is quoted in the September 1 issue of Inside Counsel, addressing how social media create risks for trademark holders because there is little jurisprudence on whether using another’s trademark in a social media subdomain can be infringing. Mr. Zelnick notes that there are clear rules and legal procedures for resolving cybersquatting and other domain name disputes on the Internet, but the law has not yet caught up to social media. “This is somewhat uncharted territory,” he stated.
Robert W. Zelnick, Intellectual Property, Trademark/Brand Protection & Enforcement
Dennis White gave PEI Manager (August 2009) a detailed analysis of new accounting standards for the “earnout” method of supplemental payments to bridge a pricing gap between buyer and seller. Previously earnouts were booked at the time of payment, but under the new standard the buyer has to record the fair value at the time of closing. “The rationale is that it affords a more accurate picture of the real economic impact of doing these transactions and provides more transparency,” Mr. White said. He added, however, that “earnouts are difficult to do to begin with,” and the new standards might make accounting for earnouts so complex that “many buyers are saying [that] … it’s more trouble than it’s worth” to close a valuation gap.
Gregory Mocek was quoted in an August 2009 EnergyRisk.com analysis of Commodity Futures Trading Commission (CFTC) efforts to implement federal position limits on trading in all commodities with finite supply, particularly energy products. A former head of enforcement for the CFTC, Mr. Mocek believes that position limits could negatively impact market liquidity. “Depending upon how far the CFTC decides to go and how restrictive those limits are, you could see a dramatic reduction in speculation,” he stated.
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Joel Grosberg was quoted by the Financial Times on August 29 concerning Apple Computer’s online App Store to sell approved programs for its iPhone. Mr. Grosberg, a former Federal Trade Commission lawyer, stated that it would be difficult to make a case in U.S. courts that the App Store gives Apple a monopoly because the company has a small share of the market for Internet-capable phones. “You would have to establish that the iPhone is some sort of essential utility,” he noted, “but the Supreme Court has cut down on that theory.”
Joel R. Grosberg, Antitrust & Competition, Intellectual Property
Kari Larsen was featured in a Greenwire story on August 28, concerning plans by the Commodity Futures Trading Commission (CFTC) to regulate voluntary carbon credit trading on the Chicago Climate Exchange. Ms. Larsen believes that the CFTC’s move shows that the agency wants to regulate both the cash and derivatives markets of any cap-and-trade carbon credit program proposed by Congress. In this way, she noted, the CFTC “is establishing their presence as a regulator of carbon, not just strictly the futures contracts.”
Kari S. Larsen, Energy and Derivatives Markets
Gregory Mocek was cited in a Dow Jones Energy Service story on August 6 that assessed possible Commodity Futures Trading Commission position limits on futures traders. Mr. Mocek noted that if the CFTC position limits unilaterally reverse the hedge exemptions now in place, it would be highly problematic for the futures markets. He explained that traders who currently have exemptions would be damaged if the markets know the exemptions have been pulled.
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Peter Townshend spoke to the Silicon Valley/San Jose Business Journal about his use of the Twitter social networking tool. “It’s a fantastic way to keep up with clients on a personal level – to know what’s going on in their lives,” he said. Mr. Townshend advises private equity investors and emerging technology companies. The story notes that neither McDermott nor other major law firms have fashioned specific guidance on the use of social media.
Peter N. Townshend, Corporate, e-Business, Intellectual Property
Kari Larsen was quoted in a Bloomberg story on August 27 the regulation of the Chicago Climate Exchange Inc.’s voluntary carbon credit trading program by the Commodity Futures Trading Commission (CFTC). According to Kari the Chicago Climate Exchange’s trading program has, “provided the opportunity for companies to coluclate their carbon emissions and get some experience in trading before there was a mandatory requirement to do so.” Kari also told Bloomberg that because carbon credits are traded on the Chicago Climate Exchange, the CFTC’s interest in the trading program demonstrates that it wants to regulate the cash and derivatives markets under any cap-and –trade program established by Congress.
Kari S. Larsen, Energy and Derivatives Markets
Steven Scholes was cited in an August 27 Plan Advisor story about how the Securities & Exchange Commission and other financial regulators view the use of social networking sites by financial advisors and brokers under advertising and communication rules. Mr. Scholes stated his belief that the SEC would take the position that advertising is advertising, regardless of the medium. However, a problem could arise if what an SEC lawyer considers advertising is not seen that way by employees of financial firms.
Neal Minahan was quoted in a National Law Journal story on August 26, concerning a U.S. First Circuit Court decision to uphold a lower court ruling that required Massachusetts prison officials to allow two Muslim inmates access to televised prayer services. The trial court appointed McDermott as pro bono counsel for the inmates, and Mr. Minahan, as part of the pro bono team, said that the ruling fleshes out the First Circuit’s case law on the Religious Land Use and Institutionalized Persons Act (RLUIPA). “Once a plaintiff has established a substantial burden on his or her religious exercise, then the burden shifts to the government,” Mr. Minahan said, commenting on the policies that the inmates had protested. “They [the government] need some compelling reason to substantially burden a plaintiff's access to religious services, to burden their sincere religious beliefs.”
Neal E. Minahan, Pro Bono & Community Service, Trial
Blake Rubin commented for Law360 (August 24) on the Tribune Company’s transfer of the Chicago Cubs to a partnership owned 95% by a family of financial entrepreneurs. Mr. Rubin represented Tribune Co. in what he called “a very challenging transaction, which involved implementing an intricate, highly leveraged structure through a bid process in a difficult credit market and navigating it through Major League Baseball’s debt service restrictions.” He added that Tribune helped complete the deal by being “extremely creative, resourceful and persistent.”
Thomas Ryan was quoted in an August 24 Law360 story about a ruling by the U.S. District Court for the District of Colorado that dismissed counterclaims of antitrust violations in breach of contract litigation brought by Total Renal Care Inc. against a rival kidney dialysis clinic. Mr. Ryan, who represented Total Renal Care, was pleased with the ruling, and stated, “[A]t the end of the day we believe that our case has merit and the antitrust claims against us lack merit.”
Thomas A. Ryan, Health Care Litigation, Trial
Mark Itri spoke to American Medical News (Amednews.com) on August 24 about the problems that using open-source software in health IT systems could pose for medical professionals. Because such software is often written anonymously, Mr. Itri said, there is “no one for you to hold liable at the end of the day” if there are such problems as a “back door” that releases patient data back to the authors, or a system that is not HIPAA-compliant. Although the attraction of open-source is that it is essentially cost-free, Mr. Itri added that hiring someone to solve the problems could ultimately cost more than buying a proprietary system from a company that could be held accountable to solve problems if necessary.
Mark J. Itri, Intellectual Property
McDermott Chicago Office employees were mentioned by the Chicago Daily Law Bulletin on August 20 for their participation in three “Days of Caring” projects sponsored by United Way of Metropolitan Chicago in June and July. The projects included bagging and handing out produce to the indigent, preparing and serving breakfast at the Inspiration Café to people with low incomes, and reading to and playing with children at two day care/youth centers.
Nancy G. Ross, Pro Bono & Community Service
Dennis White discussed in The New York Times “Deal Book” (August 20) a variety of issues that principals of private equity firms should consider if they serve as directors of portfolio companies that the firms wish to sell. Mr. White examined a recent Delaware Chancery Court case in which the court ruled in favor of common shareholders suing directors who had approved the sale of a company in a deal that benefitted only preferred shareholders, holding that the directors were not shielded by the business judgment rule because they were employees of private equity firms that were preferred shareholders. “Private equity designees to portfolio company boards should recognize that they represent deep pockets for litigious … shareholders,” Mr. White stated, “and, given the potential for conflicts of interest arising from their positions, they are vulnerable to suit and potential personal liability.”
Dennis J. White, Corporate, Private Equity
Andrea Macintosh Whiteway was quoted in BNA Daily Tax Report on August 18 concerning the inclusion of a partial election option in new IRS guidance for making the tax code Section 108(i) election to defer the recognition of cancellation of indebtedness income. Ms. Whiteway said the guidance makes Section 108(i) “more workable and appealing” for partnerships, adding that the new guidance enables partners to, in effect, make an individual election even though the partnership will administer it.
Andrea Macintosh Whiteway, Tax
Michael Peregrine was quoted in Modern Healthcare on August 17 concerning a federal district court ruling that the interim CEO of a failing hospital was personally liable for $2 million in payroll taxes that were not paid during his tenure. Although this and a similar case had unique circumstances, Mr. Peregrine said that their idiosyncrasies should not obscure the basic lesson for any hospital: “When you’ve really got cash flow problems, board members and senior managers have to make sure they walk the [payroll tax] check to the mailbox.”
Jeffrey Stone participated in a Chicago Lawyer Magazine (August 2009) roundtable concerning the economy and its impact on the legal profession. Mr. Stone stated that law firms must focus on “understanding the stresses that our clients are under, and making sure that the services we deliver and the manner in which we deliver them makes sense to our clients.” He believes that firms must change to accommodate client needs by looking hard at their services, staffing levels, locations and skill composition. Mr. Stone added that young lawyers should “think about investing in their careers and…about how they develop a set of skills that’s really going to help them add value to clients.” He cited strategic thinking, decisiveness, communication and integrity as key skills for law firm leaders. Click here to read the full article.
Adam Rogers analyzed for Report on Medicare Compliance (August 17) recent steps by the Centers for Medicare and Medicaid Services (CMS) to reduce Medicare fraud and abuse by home health agencies (HHAs). He noted that a recent government report brought HHAs to light "as a hotbed for potential problems," in such areas as the sharing practice locations among Medicare-enrolled HHAs. Mr. Rogers believes that banning space sharing "can have a positive impact to the extent that it ferrets out providers who may just be using an address and a billing number and [are] not actually…providing quality services to Medicare beneficiaries." He noted that this proposal and others are still preliminary, and that "most, if not all, of the proposals will change in some form," but added that they show CMS is focused on "making sure that those in the business of providing home health care are truly committed to that business."
Abbe Lowell was quoted on August 15 by WFAA.com regarding a court’s release of bribery allegations against two former Dallas City Council members and a Texas state representative. Mr. Lowell is an attorney for a low-income housing developer implicated in the allegations. “They are not charges,” Mr. Lowell said of the allegations. “They have not been reviewed by a grand jury. And they are far from proven events.”
Robin Greenhouse commented for Tax Analysts (August 14) on the First Circuit's en banc U.S. v. Textron ruling, which reversed an earlier panel decision and held 3-2 that tax accrual workpapers are not subject to work product protection. She said the majority's new work product rule "is directly in conflict with the Second Circuit's decision in Adlman and is even more restrictive than the Fifth Circuit's 'primary motivating purpose' standard." She noted that the dissent would support a petition for certiorari by Textron: "There are significant nontax ramifications from this decision, and all litigators and general counsel should be concerned. This decision opens the door for one part in litigation to discover an opposing party's litigation reserve fund." She made similar points for Bloomberg.com, where she observed that the ruling was "a very results-oriented decision. The court wanted to find that this was not privileged."
Matthew Jacobs was cited by The Recorder on August 14 as being one of three lawyers chosen as candidates to be Northern California’s top federal prosecutor. The selection was made by a committee vetting potential nominees for U.S. Senator Barbara Boxer. Mr. Jacobs is a former federal prosecutor and a member of the Firm’s white collar practice. Once Senator Boxer makes her recommendation to the President, the candidate chosen must be interviewed by U.S. Justice Department officials and approved by the U.S. Senate.
Lisa Linsky was cited in the August 13 issue of New York Lawyer for being named diversity liaison to the lesbian, gay, bisexual and transsexual community for the board of the National Association of Women Lawyers.
Michael Peregrine was quoted by Tax Analysts on August 11 concerning plans by the IRS Tax Exempt/Government Entities (TE/GE) Division to set up a “corporate” approach with centralized oversight to identify tax fraud in tax-exempt organizations. He noted that exempt organization (EO) audit and compliance committees will need details on what kind of tax fraud the TE/GE Division is targeting. “It will be incumbent on the agency to increase EO community awareness as to the specific indicia of criminal fraud – what kind of conduct are we talking about, specifically, beyond the obvious,” Mr. Peregrine stated. “The EO community will need details.
Michael W. Peregrine, Tax Exemption
Thomas Sykes commented for Tax Analysts (August 10) on the District of Columbia Circuit’s decision in the Cohen v. Commissioner tax case. The decision revived a taxpayer’s claim that the telephone excise tax refund process used by the IRS does not comply with the Administrative Procedures Act (APA). Mr. Sykes considers the case to be “unusual” because “[i]t’s a rare thing for a court to brush aside the Anti-Injunction Act, brush aside the Declaratory Judgment Act, and proceed under the APA to examine an IRS pronouncement.” Plaintiff Cohen claimed that the IRS procedures wrongfully limited refunds and Mr. Sykes agreed, calling the IRS settlement terms “a low-ball.” He added, “When I read … that only half the money that government experts thought was attributable to this [IRS refund formula], I was not at all surprised.”
Thomas D. Sykes, Tax, Tax Cases
Peter Faber was quoted in an August 5 broadcast report on NPR Marketplace concerning the efforts of creditors, particularly New York City, to secure settlements in the Lehman Brothers bankruptcy. New York’s effort to collect unpaid corporate and rent taxes from the bankrupt company has been time-consuming, but Mr. Faber stated that it is not unusual for audits assessing what creditors are owed to take many years. He added that the amount of time needed for the audits does not imply any wrongdoing by Lehman Brothers. “The tax laws are very complicated and companies and tax administrators very often disagree about what they mean,” Mr. Faber explained. “And very often those disagreements end up in court.”
Neil Kawashima commented for The Wall Street Journal on August 8 concerning a bill introduced in the U.S. Senate to make it easier for wealthy collectors to donate artwork for museums. The bill, introduced by New York Senator Charles Shumer, attempts to reverse recent declines in donations by allowing donors 20 years to complete their gift and letting them take a tax deduction on some of the appreciation. “This bill remedies some of the problems with respect to the current law, but it doesn’t go far enough,” said Mr. Kawashima.
Neil T. Kawashima, Private Client
Sergio Pozzerle was mentioned in Solar Industries (August 7) as having joined McDermott’s Houston office. Formerly with another major firm in Houston, Mr. Pozzerle is recognized by Chambers USA as one of the nation’s top renewables and alternative energy lawyers, and represents a variety of U.S. and European renewable power developers as well as other energy industry clients.
Sergio A. Pozzerle, Corporate, Energy and Derivatives Markets
Veronica Pinotti is quoted in the August 7 issue of Global Competition Review in a piece which looks at Intesa Sanpaolo’s extension from the Antitrust Authority.
Cheng Tan was quoted by Law360 on August 7 concerning a ruling by the European Court of Justice that a beer collective’s trademark did not impede another beer’s protected geographic indication (PGI) rights. The collective, Bayerischer Brauerbund, won approval for its protected use of “Bavaria” under a PGI filing approved in 2001, despite the fact that plaintiff Bavaria NV has sold beer under the “Bavaria” name since 1925. Mr. Tan said other companies should not repeat Bavaria NV’s mistake and “need to monitor what’s happening out there. Bavaria NV did not submit objections to the PGI application, but after this PGI was granted to Bayerischer Brauerbund they felt its full force.”
Cheng Foong Tan, Intellectual Property, Trademark/Brand Protection & Enforcement
Peter Resnik was featured in an August 7 broadcast story on the CBS Evening News that highlighted his efforts to create the Homeless Book Club, a discussion group that enables homeless individuals in Boston to meet in a church conference room and discuss books and short stories that Peter provides. The club had its genesis when Peter struck up an acquaintance with Rob, a homeless man he crossed paths with regularly on Boston Common while heading to work. After Peter gave Rob a book that they enjoyed discussing, and Rob passed it on to other homeless persons he knew, “[I]t occurred to us that there was an interest out here that could draw people together," Peter said. The book club has been replicated in other cities – and Rob, with Peter’s help in resolving a legal issue, is now housed and working as a church custodian.
Gregory Mocek was quoted in The Wall Street Journal (August 6) concerning the Commodity Futures Trading Commission (CFTC) placing limits on speculators in the energy markets. Speculators have caused volatile commodity prices in recent years and as a result the commission is leaning towards federal position limits. However, it would be difficult for the CFTC to unilaterally reverse hedge exemptions that are in place. According to Mr. Mocek, “Traders who currently have exemptions would be damaged if the market knows the exemptions are pulled.”
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Sergio Pozzerle was mentioned by The Deal on August 6 for joining McDermott’s Houston office as a partner in the Energy and Derivatives Markets group. Mr. Pozzerle focuses on renewables and alternative energy, and previously was with another major firm in Houston.
Sergio A. Pozzerle, Energy and Derivatives Markets
Patrick Nordhues was interviewed in Financial Times Deutschland online (FTD.de) on August 04 concerning the compensation of debtors in the case of creditor’s insolvency.
Patrick Nordhues, Corporate - Germany, Finance & Banking, Germany
John Kocoras was mentioned in Chicago Lawyer’s “Firm Life” column (August 4) for joining McDermott’s white collar and criminal defense practice.
John C. Kocoras, Trial, White-Collar Criminal Defense
Gregory Mocek discussed the potential impact of stricter U.S. commodity trading regulation on foreign commodity markets for the Financial Times (FT.com) on August 4. Mr. Mocek said aggressive U.S. regulatory action could “have a positive impact on foreign exchanges,” particularly rapidly growing commodities hubs. As he explained, “There are numerous exchanges and over-the-counter venues around the globe, including the hot domiciles like Brazil and the vulnerable markets of Dubai that could dramatically benefit from the regulatory arbitrage that could result from aggressive U.S. regulatory action.”
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Thomas Jones was quoted by Modern Healthcare in an August 3 story about an Arizona-based health system that is one of the first not-for-profit hospital operators to win U.S. Department of Labor approval for reinsuring employee benefits through a captive insurance company. Such expanded use of captives has been allowed in limited circumstances since 2000, but has not been widely adopted. “This is cutting edge,” Mr. Jones said of the system’s program, “This is not garden variety.”
Thomas M. Jones PC, Captive Insurance and Reinsurance, Nonprofit Organizations, Tax
Andrea Macintosh Whiteway was quoted in the August 3 Tax Analysts concerning the recent Court of Federal Claims ruling in Murfam Farms v. U.S. that reg. section 1.752-6 is invalid. Tax practitioners say the ruling may not significantly damage the IRS fight against abusive tax shelters because the government’s position that the kind of partnership in Murfam Farms has not yet been tested by the courts under the economic substance doctrine. Ms. Whiteway agrees with this assessment, advising taxpayers to “query whether you need the reg to prevent abuse given this doctrine.” She added that “taxpayers in the son-of-BOSS [tax shelter] transactions need to prevail on economic substance in any event, with or without application of this regulation.”
Andrea Macintosh Whiteway, Tax
Russell Hayman discussed for Inside Counsel (August 2009) the implications of the Fraud Enforcement and Recovery Act (FERA), which amends the federal fraud statutes and was passed to address potential fraudulent activity by individuals at financial institutions that receive federal government assistance. Because FERA does not define key terms that determine whether a contract or claim is fraudulent, Mr. Hayman’s belief is that “I don’t think there’s going to be great restraint in the cases that are brought under these new provisions, because most of the cases will be brought by whistleblowers that are looking to get rich quick.” He added that, because qui tam actions under FERA can be accompanied by administrative or criminal actions against companies and executives, “The new FERA amendments make it even more likely that we will have these types of parallel proceedings.”
Thomas Jones was quoted in Bermuda Insurance Update (2009 vol. 3) concerning SUMIT, the captive insurance company for Stanford University’s hospitals. SUMIT and its cells elected “disregarded entity” status to maintain onshore federal tax status, and Mr. Jones stated that, “As far as I know, SUMIT is the first captive to use this otherwise common procedure to achieve hybrid onshore tax/offshore regulatory status.” In a second article Mr. Jones stated that the IRS is moving “inexorably” toward treating every cell in a segregated cell company as a separate taxpayer. “While this IRS position involves quite a bit of ‘tax fiction’ given that nonvoting preference shares or even mere contract rights associated with a cell will be deemed equivalent to ownership of voting shares, such outcomes are common in other areas of federal taxation,” he said.
Thomas M. Jones PC, Captive Insurance and Reinsurance, International Tax
Monica Wallace was profiled in NIU Business (Summer 2009) as the recipient of the inaugural Executive Club scholarship award at Northern Illinois University College of Business. Ms. Wallace graduated summa cum laude and first in her class at NIU before attending the University of Iowa College of Law and entering practice at McDermott, where today she counsels clients in every major sector of the health care industry on regulatory issues and business transactions. She continues her contributions to Northern Illinois University by serving as a board member of the NIU Executive Club, helping plan the annual shadowing program for College of Business students, and doing on-campus recruiting for McDermott.
Gregory Mocek was quoted by Financial Times (July 31) regarding a recent meeting between the Financial Services Authority and leading oil companies, banks, hedge funds and oil brokers to review regulation in oil and commodities markets. Irregular oil prices have drawn attention from policymakers worldwide. Mr. Mocek predicts that there will be, “pressure on foreign regulators to change their regulatory landscape to come in line with their American counterparts."
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Massimo Trentino was quoted in the July/August issue of TopLegal commenting on the Italian legal market and the future growth plans for the Rome office.
Michael Peregrine was quoted in BNA’s Health Law Reporter (July 30) concerning new Internal Revenue Service training materials for the leaders of nonprofit organizations. He called the best practices described in the materials “a good resource for nonprofit boards and their governance advisors,” saying that the materials address “governance ‘areas of interest’ that have not been as publicly pronounced before,” such as size, composition, authority allocation and key policies of boards. Mr. Peregrine asserted that “while the IRS may not be able to mandate specific governance practices, it is clearly extending its governance reach,” and added that the new training materials demonstrate that “the IRS is in it for the long haul as it relates to governance scrutiny.”
Michael W. Peregrine, Health, Nonprofit Organizations
Gregory Mocek was quoted July 28 by Bloomberg.com concerning efforts by the Commodity Futures Trading Commission (CFTC) to expand its oversight of commodity trading in over the counter markets. “Changing the regulatory field is like a referee changing the rules in the middle of the game,” stated Mr. Mocek, former head of enforcement at the CFTC. “We can only hope that the U.S. Congress and the CFTC do not overplay their hands in their quest to find a scapegoat for the financial crisis.”
Gregory Mocek, Energy & Commodities Government Investigations, Energy and Derivatives Markets, Government Strategies
Veronica Pinotti and Martino Sforza were quoted in the July 28 issue of Global Competition Review in a piece which covers Italy's Competition Authority raising the turnover thresholds at which companies must notify planned mergers and acquisitions.
Veronica Pinotti, Martino Sforza, Italy
Nancy Ross was quoted in a July 27 story on United Way of Metropolitan Chicago web site (www.uw-mc.org) detailing McDermott’s participation in the organization’s Day of Caring program. Earlier this year 27 persons from the Firm helped package food at the Greater Chicago Food Depository for distribution to the needy, and up to 70 more individuals from McDermott are scheduled to participate in activities of three other United Way agencies. “Unanimously, everyone found the [food packaging] experience quite enriching. … We are all extremely busy in our lives but there is no better reward than volunteering, in my view,” Ms Ross stated. She added that “United Way doesn’t focus on one important facet. They span across a multitude of critical issues that affect communities throughout the region. That’s an important mission that we are happy to support.”
Nancy G. Ross, Pro Bono & Community Service, Trial
Andrew Liazos was quoted by Dow Jones Newswires in a July 27 story about recent U.S. Tax Code changes that prohibit deferral of taxes on compensation paid to managers of offshore hedge funds. Mr. Liazos said the new rules will pose significant compensation issues, especially for funds based in tax havens. As he noted, when such funds and their managers use deferred compensation strategies, “They control when they pay the tax. That means there’s a huge amount of compensation that isn’t being taxed for periods of time.” He added that issues to be addressed in these instances include whether the fund is “tax indifferent” under IRS rules, and whether the specific compensation is subject to the Section 457A tax rule.
Andrew C. Liazos, Employee Benefits & Pensions, Executive Compensation
Eugene Goldman was quoted in a June 17 Law360 story on President Obama’s proposed overhaul of the nation's financial regulatory structure. Mr. Goldman believes that the Securities and Exchange Commission fared well in the proposal because the agency did not end up losing a great deal of power to the Fed or consolidating with the CFTC. “If you look back four months ago, when people predicted doom and gloom for the agency's future, we now see the president's proposal as a declaration of confidence in Chairman Schapiro's ability to get the SEC back on its feet,” Mr. Goldman said.
Eugene I. Goldman, SEC Defense, Trial
Keith Pattiz was cited in a July 23 New York Times story about an old factory in New York’s former meatpacking district that had attracted attention for the colorful flowers planted there. Mr. Pattiz represented the owner of the building, who had purchased it a year ago intending to redevelop it into office and retail space. The owner, who previously had not been publicly identified, was a noted New York City party planner who died early in July.
Andrew Liazos was quoted in Corporate Board Member on July 23 regarding impending legislation that would require public companies with annual meetings occurring on or after December 15, 2009 to give their shareholders a say on executive compensation. Mr. Liazos noted that directors should determine how management is preparing for this change. He stated that directors should, “Ask what the shareholder communication strategy is—who handles shareholder inquiries and the fair disclosure issues that may arise? Also, make sure your company is aligning pay with performance. If your company participates in poor pay practices, now is the time to jettison them….Finally, consider risk management. Are executives compensated for long-term shareholder value?”
Andrew C. Liazos, Employee Benefits & Pensions, Executive Compensation
Paul Melot de Beauregard was quoted in Financial Times Deutschland on July 21 concerning the voluntarily payment of bonuses during a financial crisis.
Paul Melot de Beauregard, Employee Benefits & Pensions, Employment - Germany, Germany, Labor & Employment
Lazar Raynal was mentioned in the July 2007 issue of Chicago Lawyer for his appointment to lead McDermott’s Trial Department, while Laurence Bronska and Andrew McCune were both noted in the same publication for their moves to the Firm’s private equity practice after previously practicing at DLA Piper.
Laurence R. Bronska, Andrew W. McCune, Lazar P. Raynal, Corporate, Private Equity, Trial
Amy Gordon spoke to CFO.com (July 14) regarding a little-known provision in the Emergency Economic Stabilization Act of 2008, which as of January 2010 will require many employers to change their health plans to ensure equality between physical and mental health benefits. Ms. Gordon noted that “there are many plans that cap mental health and substance abuse [treatment] visits,” and that many other plans “do not provide access to out-of-network providers, although they do on the medical and surgical side …” She added that many employers “are really concerned that there will be no limits on out-of-network visits, which can make it hard to keep a handle on costs. Noting that plan equality may lead more people to seek mental health care, Ms. Gordon concluded that “it’s hard to quantify the impact of the change because there are so many unknowns.”
Amy M. Gordon, Employee Benefits & Pensions
Susan Nash was quoted in Business Week on July 16 concerning legislation proposed in Congress that would require employers to offer health insurance benefits to their employees or pay a fine. Ms. Nash suggested that companies may prefer to pay fines for part-time employees rather than incur the cost of insuring them. But, she said, “there is a hugely paternalistic culture among employers in this country when it comes to health benefits,” given that most companies with 50 or more employees offer them. Ironically, Ms. Nash added, companies with 25 or fewer employees would be exempt from fines, and “the bulk of the uninsured are in those small companies.”
Susan M. Nash, Employee Benefits & Pensions
Dennis White commented for Forbes.com (July 14) concerning likely trends in merger and acquisition transactions. He stated that he foresaw potential activity in such business sectors as health care, life sciences and manufacturing, with numerous sales of distressed assets to firms that have the capital in-house to make the acquisition. Mr. White also noted that credit markets have stabilized, if not loosened, which will also support M&A activity.
Dennis J. White, Corporate, Mergers & Acquisitions
Eric Zimmerman was quoted in Modern Healthcare (July 13) concerning an agreement that three hospital lobbying groups reached with Congress and the White House to reduce hospital reimbursement during the next 10 years and to make changes in physician self-referral to hospitals in which they have an ownership interest. “It looks like a lot for a little,” Mr. Zimmerman said of the agreement. “Physician ownership has been the top priority for the hospital lobby. It’s always confused me why that’s the top priority. It’s a little confounding that they would sacrifice so much to get assurance on this issue.”
Konstantin Günther was quoted in Handelsblatt on July 13 as the legal advisor of Honeywell International Inc. on the acquisition of the RMG Group.
Konstantin Günther, Corporate - Germany, Germany, M&A - Germany
Kari Larsen assessed for the July 13 issue of GHG Transactions/Technologies proposed legislation to establish federal oversight authority over cap-and-trade carbon credit markets. The Feinstein-Snow bill would give the authority to the Commodity Futures Trading Commission, and Ms. Larsen believes the CFTC has “the management and the ability to train people in this area, and I think it would be a smoother transition with the CFTC as the oversight agency” than if authority were split with the Federal Energy Regulatory Commission as the Waxman-Markey bill proposes. “We need the market to be successful in order for the [greenhouse gas] reductions to be real – in order for it to have the meaning both environmentally and financially that we want it to. And confusing regulation will not help create that robust market,” Ms. Larsen added.
Kari S. Larsen, Energy and Derivatives Markets
Gregory Mocek suggested to Reuters on July 10 that the Commodity Futures Trading Commission is poised to do as much reform in the commodity markets as possible using its current powers, in hopes of avoiding the legislative process. “I’m sure they’ve done the research,” stated Mr. Mocek, a former head of the CFTC’s enforcement division. “Position limits could be implemented without the legislative process. [Whether] they do that remains to be seen.”
Gregory Mocek, Energy & Commodities Government Investigations, Energy and Derivatives Markets, Government Strategies
Eugene Goldman was quoted in Securities Regulation and Law Report (July 10) concerning the securities enforcement implications of the Obama Administration's financial regulatory overhaul plan. "It was a very good day for the SEC when the administration announced its plan," Mr. Goldman said. "If you think back four or five months, there were predictions of doom and gloom for the SEC in light of Madoff and other issues, yet this package of proposals, which will expand the commission's powers in various respects, … appears to be a vote of confidence in Chairman Schapiro and her ability to get the commission back on its feet." With the proposed 2010 SEC budget topping $1 billion for the first time, "All the signals coming out of the administration are for a proactive SEC," and he singled out recommended legislation to allow the SEC to prohibit mandatory arbitration in favor of litigation for claims against broker-dealers.
Eugene I. Goldman, Corporate Responsibility and Governance, SEC Defense, Trial
The AmLaw Daily interviewed William Schuman (May 29), discussing the increase in lateral movement and how partners can make a graceful exit. Mr. Schuman said that the most important thing for partners to remember is that they're not allowed to solicit clients or associates of their firm while they're still there. "Once you're gone you can solicit your old clients." He noted that some clients may have a need to know what their lawyers intentions are. "Some clients have a need to know, especially if they've got an urgent matter....In an emergency circumstance, you're allowed to call your client and tell them you're leaving. You can give them three options: come with you to your new firm, stay at the old firm, or go with another firm entirely. You just tell them those options so they can evaluate them." To read the entire article click here.
William P. Schuman PC, Professional Responsibility, Trial
Gregory Mocek said on Forbes.com (July 8) that plans by the Commodities Futures Trading Commission to consider speculative limits on trading in oil and other energy products may be difficult to implement. “Excess of speculation is a phrase that has yet to be defined by judges or a jury,” Mr. Mocek, former head of enforcement at the CFTC, observed. “The legal challenges to the government's potential pursuit of excessive speculation would be interesting to watch.”
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Leigh Martinson commented for Law.com (July 6) on the decrease in patent allowance rates and resulting sharp increase in patent appeals at the U.S. Patent & Trademark Office. Mr. Martinson noted a growing reluctance by patent examiners to suggest changes that address concerns about a patent application. “You stopped getting that negotiating feeling with examiners,” he said. “The only way you can get past them is to go to the [appeals] board.” Mr. Martinson added that appeals are more expensive than continuing an application: “It becomes a much more involved response. You’ve really got to point out everything the examiner has done incorrectly.”
Leigh J. Martinson, Intellectual Property, IP Litigation
Eric Hargan was quoted in BioWorld Today on July 6 regarding a recommendation by the Institute of Medicine that comparative effectiveness research (CER) should be a top priority for government-funded health care programs. Mr. Hargen stated that if CER is not handled “very carefully and delicately,” any negative findings from its broadly based sampling may have a chilling effect that could limit or deny individual access to a treatment. He added that if CER “tugs against very promising new techniques, drugs and devices that are rising to treat smaller populations,” that would “be a problem.”
Bernadette Broccolo was quoted in the July 6 issue of Modern Healthcare regarding the assertion by new IRS commissioner Sarah Hall Ingram that the IRS will more closely scrutinize governance practices of not-for-profit hospitals to ensure that they do not abuse their tax exemption. Noting that Ingram is building on the policies of her predecessor in pursuing once-controversial governance oversight, Ms. Broccolo said of the IRS: “They are going forth with confidence in that position. We’re not going to see a reversion to circumspection.”
Bernadette M. Broccolo, Health, Nonprofit Organizations, Tax Exemption
Gregory Mocek was quoted extensively by Platts Metals Week (July 6) on the government’s push for more regulation of futures trading. Mr. Mocek said that “off-exchange issues in the credit-default swap market obviously contributed” to the recent financial meltdown, but added that “without those [futures] markets, the world would be much worse off as it attempts to manage its risk. … I agree that there may be more speculators, but that only offers more liquidity.” No matter what shape future regulation takes, Mr. Mocek warned that “it will be absolutely necessary for the U.S. to do everything in its power to curtail the regulatory arbitrage that could result from this anti-markets mania …. These markets are portable, and they could easily move offshore.”
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Robert Stephens was mentioned in the July 6 Texas Lawyer for his appointments as co-partner-in-charge of the Firm’s Houston office and as a member of the McDermott Management Committee.
Robert G. Stephens, Corporate, Energy and Derivatives Markets
Michael Anthony told Lab Law Weekly (July 3) that the newest rankings for McDermott in Chambers USA, “particularly our position as the only Band 1 health care practice in Illinois, are a great honor.” He noted that because the Chambers researchers in part base their rankings on client feedback, “these results indicate that our dedication to legal excellence and industry knowledge is having a direct, positive impact on those we serve.” McDermott Illinois health law lawyers receiving Band 1 individual rankings, in addition to Mr. Anthony, are Bernadette Broccolo and Michael Peregrine. Ralph DeJong received “well regarded” recognition, while Kerrin Slattery was identified as “up and coming.”
Michael F. Anthony, Bernadette M. Broccolo, Ralph E. DeJong, Michael W. Peregrine, Kerrin B. Slattery, Health
José Luis Vittor was quoted by Energy Economist (July 2009) regarding Evo Morales’, Bolivia’s president, model for the gas industry and the four challenges the model faces if it is to increase output and encourage investment. One of the four challenges Morales’ model faces is to transform Yacimientos Petroliferos Fiscales Bolivianos (YPFB), the state oil company that controls the industry and its vast reserves, into a skilled company capable of delivering new projects. “If you have an experienced, well-run and capably managed company and you are having a tough time developing reserves anywhere in the world, how much harder is it for YPFB to do it without a structure or expertise,” said Mr. Vittor.
José Luis Vittor, Energy and Derivatives Markets, Global Energy & Infrastructure Projects, Global Renewable Energy, Emissions and New Products
Paul Melot de Beauregard was quoted in Financial Times Deutschland, FTD.de, and Capital.de regarding the dismissal of managers and their right of compensation in a financial crisis.
Paul Melot de Beauregard, Employee Benefits & Pensions, Employment - Germany, Germany, Labor & Employment
Michael Anthony was quoted by Business & Finance Week regarding the launch of the Firm’s HealthCareLawReform.com blog. Mr. Anthony noted McDermott’s decades-long leadership in breadth and depth of health industry knowledge and stated, “This blog is designed to help bring that critical insight to stakeholders in the most immediate and useful way possible as we approach an era of unprecedented change in our nation’s health care system.”
Geoffrey Raicht was mentioned in INSOL World (Third Quarter 2009) for his role chairing an expert panel discussion on the state of the health care sectors in the U.S., U.K. and South Africa. The panelists agreed that, although there are substantial differences between the countries (with no government-owned health facilities in the U.S, and mainly public funding of the health care sector in the latter two), the key issues of access to care and cost of care are common in all three. The quality and fairness of health care, and the rights of access to it, are issues across the world.
Geoffrey T. Raicht, Health, Private Equity, Restructuring & Insolvency
Steven Scholes was quoted extensively in Compliance Week (June 30) about the substantial increase in class action securities lawsuits related to the financial crisis. Mr. Scholes stated that such an increase “was only to be expected given the market dislocations we’ve had over the last 18 months or so,” adding that “a tremendous amount of litigation” involves structured financial products such as collateralized debt obligations. He also predicted there is “a significant likelihood there will be more” litigation over credit default swaps. An increasing number of lawsuits are targeting asset management firms, and Mr. Scholes attributed that to the “unprecedented size, scope and number of the alleged Ponzi schemes, which seem to be coming to light as a result in the decline in asset values. I think that wave is still building and has yet to crest.”
Steven S. Scholes, Class Action, Securities Litigation, Trial
Andrea Kramer was quoted in a WomenLegal Magazine (June – August 2009) story that presented comments by participants in the publication’s 2009 forum discussion among gender diversity thought leaders. Ms. Kramer, chair of McDermott’s Gender Diversity Committee, urged women lawyers to be more forceful in communicating what they have achieved with their firms. She noted that as a Compensation Committee member, “I read several thousand self-evaluations. But it didn’t take me long to notice a pattern. After reading a handful of self-evaluations, I saw that too many women were reticent to claim credit for their accomplishments. Most men weren’t.”
Sandra Urban-Crell was interviewed by the Financial Times Deutschland (June 30) concerning the consequences for companies after resigning from the employers’ association.
Sandra Urban-Crell, Employee Benefits & Pensions, Employment - Germany, Germany, Labor & Employment
Nathan Coco was quoted on June 30 by Law360 in an article regarding credit default swaps that are now taking heat for adding new layers of complexity to bankruptcy proceedings and out-of-court restructurings. Mr. Coco told Law360 that while it was certainly possible that credit default swaps were changing the incentive structure for some parties, it was impossible to gauge just how big an impact the derivative transactions were having compared with a range of other common complicating factors. “There are always in restructuring situations creditors who have different interests, different motivations, who are taking different strategies in an effort to collect more. It’s part of the process,” said Mr. Coco. He continued, “If you were to get rid of credit default swaps tomorrow, you wouldn’t see a world in which all creditors hold hands with debtors and sing kumbaya.”
Nathan F. Coco, Corporate, Restructuring & Insolvency
Stephen Ryan commented for the McClatchy-Tribune News Service (June 29) on a U.S. Supreme Court ruling that states can enforce their own banking laws on discrimination and predatory lending, even if that crosses into areas under federal regulation. Mr. Ryan declared that the decision “will have a significant, negative impact on the ability of a national bank to offer financial products uniformly throughout the country.” He predicted “a crazy quilt of conflicting legal instructions” and a “confusing situation of shared enforcement responsibilities for financial services."
Stephen M. Ryan, Government Strategies
John Kocoras was cited in both Crain’s Chicago Business (June 18) and the National Law Journal (June 29) for having joined McDermott’s Trial Department as a partner in the Chicago office. Mr. Kocoras, formerly a managing director and regional counsel at risk consultancy Kroll, Inc., will focus on internal investigations and white-collar criminal defense.
John C. Kocoras, Trial, White-Collar Criminal Defense
Anne Hance was quoted by BNA’s Health Care Daily Report on June 29 regarding stepped up surveillance and enforcement actions by the Centers for Medicare and Medicaid Services (CMS). “The environment is really starting to change,” Ms. Hance noted, adding that she sees an “ever-increasing uptick” in CMS enforcement activities. Given that the health care reform bill before Congress expands penalties for Medicare/Medicaid coverage marketing violations, Ms. Hance warned companies in the health care sector that the climate will only get “tougher for all of you trying to do the right thing.”
Lazar Raynal’s appointment to head McDermott’s Trial Department was covered in the June 25 edition of Wilmette Life. The article noted that Mr. Raynal was named to American Lawyer’s 2007 “Fab Fifty Young Litigators” list as a result of his successes in significant commercial lawsuits.
Marc Sorini was quoted in the June 19 issue of Modern Brewery Age Weekly, concerning the legal and regulatory challenges facing the beer industry. “The overarching issue, of course, is the threat of massive excise tax increases, and this is a very real threat at state and federal level,” Mr. Sorini asserted. “Most of the time proponents will cast about in various places for revenue sources, but these are people who want to tax alcohol higher, and they see it in the public interest, so they will keep after it.” The article also noted that Mr. Sorini and McDermott’s Alcohol Beverages & Products have received top national ratings by Chambers and Partners.
Marc E. Sorini, Alcohol Regulatory & Distribution
Joshua Buchman and Ankur Goel were both quoted in a June 19 Law360 story on recent changes to the False Claims Act. Mr. Buchman noted that companies no longer must deal directly with the U.S. government to have False Claims Act liability. “The bottom line is, just because you're one or two or even three levels removed from the entity doing business with the U.S. government, you're not safe,” he said. Mr. Goel thus urged companies to review their compliance programs to demonstrate “the kind of diligence the law contemplates … to show that they are aware of what they're supposed to be doing and have made a reasonable effort to put a system in place,” he said.
Joshua T. Buchman, Ankur J. Goel, Corporate Responsibility and Governance, Health, Trial
McDermott Will & Emery was mentioned in the Chicago Daily Law Bulletin on June 17 for the launching of healthcarelawreform.com, a blog covering the various reform proposals. The article noted that McDermott lawyers will use the blog to comment on current and future reform proposals and to analyze their effect on the health care industry.
Gregory Mocek was quoted in a June 18 Dow Jones Newswire report concerning the head of the Commodity Futures Trading Commission’s call for new powers to regulate derivatives trading in the over-the-counter markets. Mr. Mocek headed the CFTC’s enforcement division when it effectively undertook a previous case against OTC traders, and he noted, “I don't see the CFTC lacking any tools to pursue fraud and manipulation."
Gregory Mocek, Energy & Commodities Government Investigations, Energy and Derivatives Markets
Karen Sealander is mentioned in a June 23 Washington Post article about advocacy efforts to include dental care in the Obama Administration’s health care reform plan. She noted that dental hygienists, as represented by the American Dental Hygienists' Association (a client of the Firm) foresee a bigger role for themselves in preventive dental care to the poor and under-served. The story described the Capitol Hill advocacy efforts by ADHA members from 39 states, under the slogan of “Put Teeth in Health Reform.”
Stephen Ryan was quoted in a June 19 Reuters video report on the federal charges that Texas billionaire Allen Stanford orchestrated a massive fraud through his Antigua bank that bilked investors out of billions of dollars. Mr. Ryan, a former federal prosecutor, said of the charges that “generally, if it’s a Ponzi scheme, it is an easy case for the government to win.” He added that, although Stanford claims innocence, the Bernard Madoff conviction creates a difficult situation for him. “Mr. Stanford is very unlucky that a person like Madoff preceded him and created public resentment,” Mr. Ryan said. “That’s a very difficult problem for him when and if he goes to trial.”
Stephen M. Ryan, Government Strategies, Trial
Eric Zimmerman commented on the Obama health care reform proposal in a June 22 blog post for Healthcarelawreform.com. He noted that many of the anticipated Medicare program payment reductions and revisions are absent from the initial proposal draft, but added that “providers should not draw too much comfort from that. President Obama has called for more than $600 billion in savings from Medicare, and … [p]roviders should still expect significant savings provisions to be added later.” Mr. Zimmerman added that the proposal means health care service providers will “face new systems, obligations and incentives that will dramatically alter how providers furnish services and interact with Medicare and its beneficiaries.”
Jonathan Boyles was quoted by Standard Federal Tax Reports on June 25 concerning the new IRS Schedule M, which some pension recipients must file with their Forms 1040/1040A. The Schedule reflects new and optional withholding adjustment procedures for pension plans, and Mr. Boyles advised that “plan sponsors are not required to contact pensioners regarding the revised tables, although the IRS has encouraged plan sponsors to be proactive and contact pensioners … to ensure the[ir] withholding intent is properly effected. He added that “whether or not plan sponsors and their vendors implement the new tables, plan sponsors should be prepared to respond to participant inquiries.”
Jonathan J. Boyles, Employee Benefits & Pensions
Michael Peregrine commented in a June 17 Wall Street Journal story about a recent federal appeals court decision supporting an IRS penalty against a nonprofit hospital board chair for unpaid payroll and related taxes. The ruling, combined with increased IRS oversight of the tax-exempt sector, shows the extent to which board members can be held personally liable for a charity's decisions. As Mr. Peregrine observed, “This stuff is starting to spread like wildfire in boardrooms, and people are starting to get nervous.”
Michael W. Peregrine, Health, Nonprofit Organizations
Joseph Selby and Robin Greenhouse were quoted in a June 18 Tax Analysts story on Valero Energy v. U.S., a Seventh Circuit case that broadly constructed the tax shelter promotion exception to the section 7525 federal tax practitioner privilege, upholding the government right to documents that Valero claimed were privileged. Mr. Selby took exception to the ruling, saying that “the word ‘promotion’ when used in connection with ‘tax shelter’ is a term of art that comports with Valero’s definition.” The Court explained why its ruling differed from the district court in a similar case, U.S. v. Textron, but ignored the fact that it also was contrary to a Tax Court ruling in Countryside Ltd. Partnership v. Commissioner, which Ms. Greenhouse felt was because “it would have been more difficult to distinguish Countryside.”
Robin L. Greenhouse, Joseph H. Selby, Tax
Veronica Pinotti is quoted in the 22 June 2009 edition of Global Competition Review which covers Italy’s Competition Autority’s investigation into a pact between Italian back Intesa Sanpaolo’s two principle investors, France’s Credit Agricole and Italian insurer Assicurazioni Generali.
Veronica Pinotti, EU Competition and Regulatory - Italy, Italy
Robin Greenhouse commented in Tax Analysts (June 19) regarding a U.S. district court’s use of the Regions Financial Corp. v. U.S. to hold that a taxpayer’s claim of work product privilege was not waived by disclosing documents to an accounting firm. “The Regions decision continues to have legs with respect to analysis of waiver of work product,” Ms. Greenhouse said, but she added that in another case “the DOJ does not seem to have the same policy” of restraint toward work product production. “It is unclear whether this is the result of a new DOJ policy,” she stated, “or the unusual circumstances of a particular case.”
Robin L. Greenhouse, Tax, Tax Cases
Arnold Pamplona was quoted in a June 18 Reuters dispatch concerning the Philippine American Bar Association’s stance on same-sex marriage in California. Mr. Pamplona is President of the Association, and he said the organization at first found it difficult to endorse same-sex marriage “because being Filipino American, the great majority of our members are Roman Catholic.” However, the organization has come to support the concept because of past discrimination against the Filipino community. “Until not too long ago it was illegal for Filipinos and whites to marry,” Mr. Pamplona said, “and a lot of our board members are married to Caucasians.”
William Schuman was quoted in a June 10 story by the ABA/BNA Lawyers Manual of Professional Conduct Current Reports, summarizing his presentation on loyalty and confidentiality to the ABA National Conference on Professional Responsibility. Mr. Schuman commented on a federal court ruling that outside counsel had breached their duty of loyalty to a corporate executive by not stating during an internal investigation interview that they represented the executive’s employer and not him.
William P. Schuman PC, Professional Responsibility, Trial
Eric Hargan appeared June 17 on Fox Business News "Money for Breakfast," where he spoke about the potential impact of the Obama Administration's health care reform proposal. "There is a problem with adding a new public plan to the existing public plans," Mr. Hargan stated. "We already have a large governmental health insurance system [Medicare and Medicaid] and it is going bankrupt. The idea that we fix a government plan by adding tens of millions more people to the plan seems to me to be the height of folly." Click here for clip.
David Rogers was interviewed June 11 by Law360 concerning key employee benefits trends. “There is a constant stream of new regulatory guidance and, nearly every year or so, significant legislative changes” that impact benefits issues, he noted, citing new IRS changes to deferred compensation plans maintained by foreign corporations as a recent example. “We have advised our clients through the legislative process, and now the regulatory process, to assist them with these significant changes,” Mr. Rogers added. “While Treasury is quickly attempting to draft guidance in this area, the effective date of the legislation, as well as the various types of plans subject to the new rules, have made it challenging to provide advice.”
David E. Rogers, Employee Benefits & Pensions, Welfare Benefit Plans
Jeffrey Jung and John Tamisiea examined the increasing use of royalty financing techniques with respect to pharmaceutical and biotech assets as a source of capital in their article that appeared in The Deal Magazine on June 15. “As more market participants use royalty financing techniques as an alternative financing tool, and as the transactions continue to increase in size, there is likely to be a corresponding continued increase in transactional complexity,” the authors stated. Such transactions include investments in the anticipated future revenues from late development stage or precommercial launch products (“revenue interest” or “synthetic royalty” transactions), and various hybrid financing structures.
Jeffrey A. Jung, John P. Tamisiea, Corporate, Health, Healthcare Royalty Sales
Michael Peregrine was quoted in a June 15 ModernHealthcare.com story about a Denver arbitrator’s recent ruling that a Catholic health system could buy out its secular sponsor in a disputed merger and acquisition transaction. Mr. Peregrine stated that many not-for-profit sponsors would feel that they have rights to assets upon dissolution of an M&A transaction, and that such disputes are likely to become more common due to the recession. “The economy is going to breed more disputes between merger partners,” Mr. Peregrine noted.
Michael W. Peregrine, Nonprofit Organizations
Sarah Chapin Columbia was quoted in The National Law Journal on June 15, for a story about an increase in motions to transfer patent infringement cases out of the plaintiff-friendly Eastern District of Texas in the wake of two decisions by the U.S. Court of Appeals for the Federal Circuit that chastised the Texas federal court for not transferring cases. Ms. Columbia noted that, before the Federal Circuit rulings, she often advised clients that fighting for a transfer out of the district would not be money well spent. Now she is advising clients to try transferring when they can make a case that parties or evidence are concentrated outside of the Eastern District of Texas. "I suspect we're all going to be thinking of that possibility [more often]," Ms. Columbia said. The NLJ story also appeared in Law.com and Corporate Legal Times.
Sarah Chapin Columbia, Intellectual Property, Patent Prosecution
Terence Healey wrote an article for Law360 that appeared on June 11, concerning evolving legislation aimed at reducing greenhouse gas emissions in the United States through an emissions credit trading system. “Key differences exist between the cap-and-trade scheme proposed by the Waxman-Markey Bill and Phase II of the EU Emissions Trading Scheme (EU ETS), from 2008-2012, and Phase III of the EU ETS, from 2013-2020,” the author stated. “The differences, particularly the different targets set by the Waxman-Markey Bill, may affect the EU ETS emissions reduction target.”
Terence Healey, Energy and Derivatives Markets
Gregory Mocek was quoted June 15 on Guardian.co.uk concerning investor expectations of tighter regulatory oversight on oil and commodities trading as price volatility returns to the markets. "Speculators are a good scapegoat for a commercial who failed to hedge, for a producer who wants a high-priced physical commodity monkey off its back, or for legislators who need a quick market answer for their constituents back at home," said Mr. Mocek, a former chief of law enforcement at the CFTC. His remarks also were carried by Reuters, Forbes, worldofrenewables.com, Forex Pros and Alibaba News Channel.
Gregory Mocek, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice, Energy and Derivatives Markets, Government Strategies
McDermott Will & Emery was mentioned by The Agenda on June 11 for the Firm’s inclusion in Pride in My Workplace: Best Practices Guide for New York State Businesses to Support Lesbian, Gay, Bisexual and Transgender Employees. The Guide was originally published in 2006, and was recently released as a second edition in connection with the Empire State Pride Agenda’s sixth annual Equality@Work Awards.
John Kocoras was profiled in a lengthy June 15 interview by Corporate Crime Reporter. A former prosecutor with the U.S. Attorney’s office in Chicago and now a member of the Firm’s white-collar defense practice, Mr. Kocoras observed that “the government has tremendous resources at its disposal to investigate companies. And those resources appear to be growing in international cases, because cooperation seems to be improving with other countries. That increased cooperation has been an factor in the increase in Foreign Corrupt Practices Act cases that the Department of Justice is bringing.” Mr. Kocoras added that he joined McDermott because of his regard for “the talent level of the professionals here. They have a tremendous amount of experience. And they approach each case in a practical and intelligent manner.”
John C. Kocoras, Trial, White-Collar Criminal Defense
Gregory Mocek told Reuters on June 15 that advocates of tighter regulatory oversight for oil and commodities trading are unfairly targeting the activities of speculators in those markets. “Speculators are a good scapegoat for a commercial who failed to hedge, for a producer who wants a high-priced physical commodity monkey off its back, or for legislators who need a quick market answer for their constituents back at home,” said Mr. Mocek, former head of enforcement at the CFTC.
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Lisa Linsky is quoted in Transgender Issues in the Workplace concerning McDermott's inclusive policy toward transgender persons. "If we were going to create a culture that was committed to inclusion and equality, we had to expand our policies to include protections for employees based on gender expression and identity as well as sexual orientation," Ms. Linsky stated, adding "it was not a hard sell at our firm. There was a willingness to look at transgender workplace issues and acknowledge that this is the right thing to do." She noted that "law firms are increasingly paying attention to issues involving sexual orientation and gender expression and identity in the workplace," because "transgender workers bring the sort of diversity of opinions and creative problem-solving skills that clients want from their legal providers." To view the publication click here.
Daniel Curto and Melissa Nott Davis were cited by the Massachusetts Bar Association Lawyers Journal (June 2009) for their leadership of the pro bono effort in the Firm's Boston office, as recognized when the Bar Association gave McDermott its Access to Justice Pro Bono Law Firm Award. Harvey Freishtat, who accepted the award on behalf of the Firm, said of McDermott's extensive pro bono activity: "Much of the impetus of what we have done Firm-Wide originated out of our Boston office. We are committed to serving public interests."
Daniel A. Curto, Melissa Nott Davis, Harvey W. Freishtat, Pro Bono & Community Service
Dennis Duchene is quoted in Law360 concerning his return to McDermott as an intellectual property partner in the San Diego office, after serving as vice president and senior intellectual property counsel at a wireless communication company. "I enjoyed being in-house for a while," he said, "but I really enjoy being in the law firm environment more, and working with a variety of clients. Not to mention that the team here and nationwide, the IP team, is just outstanding." Mr. Duchene had originally joined the Firm in 2004.
Dennis A. Duchene, Intellectual Property
Dennis White was quoted by VC Experts on May 27 on a survey of the M&A environment by the Association for Corporate Growth and Thomson Reuters. He stated that "the credit crunch remains a major roadblock to economic growth and an uptick in M&A volume. [But] with the bank stress tests behind us, there is guarded optimism that the worst is over and that in the coming months credit will at least begin to start flowing again." Mr. White noted that currently many PE firms "do not want to abandon their investment discipline by doing deals with troubled companies that turn out to be fundamentally flawed. [However], the current economy almost demands that PE firms take a more hands-on approach with their portfolio companies, … coming to difficult decisions as to what companies they will continue to actively support and those they will leave to their own devices. This phenomenon will ease once the economy improves."
Dennis J. White, Corporate, Mergers & Acquisitions
Published by Law360 on June 9, 2009, "Q&A with McDermott’s David Rosenbloom,” is an interview in which David S. Rosenbloom, chair of McDermott’s White-Collar Criminal Defense practice, discusses developments and trends in his practice area. Mr. Rosenbloom believes that the most important need in white-collar litigation is to distinguish pervasive criminal conduct within an organization from the actions of a few employees who made bad choices that went against company policy, adding that the lack of such a distinction is one reason why the government will likely continue to focus on the more successful companies that can pay fines, rather than the ones that have done the most harm. Click here to read the full article.
David S. Rosenbloom, Trial, White-Collar Criminal Defense
Published by Law360 on June 9, 2009, "Q&A with McDermott’s Michael Pope,” is an interview with Michael A. Pope, in which he gives his perspective as head of the Firm’s product liability practice concerning past developments and future trends in the practice of product liability and consumer fraud law. Mr. Pope believes that, despite reforms in class action litigation, there remains a lack of legal standards governing both punitive damage claims and the duty of state court trial judges to dismiss cases that obviously do not state a cause of action; and he believes that consumer fraud claims will continue to increase, largely due to outdated state statutes. Click here to read the full article.
Michael A. Pope PC, Product Liability, Trial
Robin Greenhouse discussed for Tax Analysts on June 9 the U.S. Tax Court’s ruling in Countryside Limited Partnership v. Commissioner. The Court held that a taxpayer’s meeting minutes did not have to be disclosed to the IRS because the government failed to show that a tax exception applied, and Ms. Greenhouse noted that the ruling could affect the Seventh Circuit appeal of a contrary district court ruling in Valero Energy Corp. v. U.S. “Based on the legislative history,” she stated, “the [tax] court rejected the broad definition of [tax shelter] promotion applied by the district court in Valero, which defined promoter as one who organizes or assists in organizing a tax shelter.” She added, “I expect that the taxpayer will act promptly to send a letter to the Seventh Circuit reporting on this favorable Tax Court decision.”
Robin L. Greenhouse, Tax, Tax Cases
Bernadette Broccolo discussed for Medical Research Law & Policy Report (June 9) a proposal by the National Institutes of Health to expand its management and oversight of conflict-of-interest policies for its grantees. Ms. Broccolo said that the proposal would identify conflict of interest by asking questions that “are very thorough and reflective of all the key considerations that have become part of the guidance we’ve been receiving from nongovernmental sources. And that’s important – very important....because the law has been perhaps at best a minimum standard.” Ms. Broccolo cited such points as the proposal’s focus on institutional conflicts of interest to demonstrate that it is “a really good effort to strike a balance between bringing things up to date but not being too prescriptive and recognizing that organizations need to have … flexibility for judgment.”
Bernadette M. Broccolo, Conflicts of Interest - Health, Health
Steven Scholes addressed in a June 8 Law360 story the breach of contract lawsuits that several monoline insurers have filed against financial institutions over subprime-related losses. He stated his belief that, because the insurers are suing for breach of contract, they could win on their misrepresentation claims, and even if their fraud claims are not upheld, they could help fend off claims from investors. "It's almost a backdoor defense of the claims made in the class case" against the insurers, Mr. Scholes said. He added that getting a court to recognize that they made investment decisions based on misstatements from CDO securities originators and marketers could provide a significant boost in the insurers' public perception.
Steven S. Scholes, Subprime and Credit Markets, Subprime and Credit Markets Litigation, Trial
Gregory Mocek spoke to National Gas Intelligence on June 8 about the Commodity Futures Trading Commission (CFTC) proposal to require mandatory, regulated central clearing of derivatives trading. Mr. Mocek, former head of CFTC enforcement, said the proposal “at first glance … sounds like a prudent way to reduce systemic risks. [But] in reality, mandatory clearing for non-standardized illiquid OTC contracts could actually create more problems.” He explained that forcing clearing houses “to handle a concentration of illiquid non-standardized contracts could ultimately endanger the financial integrity of the clearing houses and dramatically increase systemic risk.”
Gregory Mocek, Energy and Derivatives Markets, Government Strategies
Todd Solomon assessed in Echelon Magazine on June 6 the effect of the California Supreme Court decision upholding the Proposition 8 ban on gay marriage in California. The Court unanimously ruled that such marriages already performed were valid under California law, and Mr. Solomon wrote that, "In deciding so, the Court concluded that there was insufficient evidence that voters intended for Proposition 8 to have a retroactive effect." He also noted that, "Despite the significant loss of the right to marry, same-sex couples in California can still obtain the same legal rights and protections as spouses by entering into domestic partnerships. California enacted a domestic partnership law in 1999; this law remained in effect throughout the short-lived legalization of same-sex marriage." To view the entire article click here.
Todd A. Solomon, Employee Benefits & Pensions
William Schuman, chair of McDermott's Professional Responsibility Committee, spoke to Law.com about how lawyers should properly leave their firms. For partners, he said, "The first thing to remember is you're not allowed to solicit clients or the associates of your firm while you're still there. The right way to go about this is to at least let your firm know you're planning on moving before you tell your clients." Mr. Schuman noted that the economic downturn has made some lawyer departures from their firms messier, but he advises departing lawyers to "always err on the side of caution. These people [at the previous firm] are not only your partners, but often your friends. The more open you are, the better. If things get nasty, you still have a duty to protect the client's interests."
Sandra Urban-Crell was quoted by Financial Times Deutschland concerning reduced compensation for elder employees in social plans.
Sandra Urban-Crell, Employee Benefits & Pensions, Employment - Germany, Germany
Peter Bauschatz, Dirk Pohl, Arndt Raupach, Wolfgang Freiherr Raitz von Frentz, Christian von Sydow and Ralf Weisser were mentioned in Legal Success, the special law edition from Handelsblatt, as leaders in their field in Germany. Photos of the group were printed on the front page cover. This list of attorneys was determined by "Best Lawyers."
Peter Bauschatz, Dirk Pohl, Arndt Raupach, Wolfgang Freiherr Raitz von Frentz, Corporate - Germany, Germany, IP, Media & Tech - Germany, Tax - Germany
Gregory Mocek was quoted in a June 4 Dow Jones Newswires story about new Commodity Futures Trading Commission initiatives to regulate OTC commodity market traders. Although some feel that the CFTC has budgetary constraints in pursuing market manipulation, Mr. Mocek, former head of enforcement for the agency, stated, "I don't see the CFTC lacking any tools to pursue fraud and manipulation."
Gregory Mocek, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice, Energy and Derivatives Markets, Government Strategies
Joseph Selby commented for Tax Analysts on June 3 concerning the First Circuit's rehearing of U.S. v. Textron and the issue of whether tax accrual workpapers are protected under the work product doctrine. Mr. Selby believes that the full court will affirm a panel's earlier holding that the workpapers are protected. "I'm anticipating a 3-2 decision either way," he said, "but I am optimistic that the en banc court will agree" that a tax adviser's assessment of the likelihood that a taxpayer will prevail on a legal issue reasonably expected to be disputed by the IRS is the type of "core work product that should be protected by the work product doctrine."
Joseph H. Selby, Tax, Tax Cases
William Weld's appointment as an international business advisor on political and government relations for Ivanhoe Capital Corporation was noted by Yahoo! Finance Canada on June 2. Ivanhoe Capital is a private company specializing in venture capital and project financing from bases in Singapore and Beijing. Ivanhoe Capital cited Mr. Weld's extensive experience in law and government, and success as a trade group leader.
William F. Weld, Government Strategies
Abbe Lowell was quoted in a Legal Bisnow June 2 feature on the Department of Justice's dropping of all charges against two former staffers at the American Israel Public Affairs Committee (one of whom Mr. Lowell represented) for violating the Espionage Act. Mr. Lowell said the prosecution was the first time the Act had been used against a non-government official for merely receiving and talking about information he learned as a foreign policy professional. Framing the defense as a First Amendment matter, Mr. Lowell believes the Bush Administration "was not courageous enough" to bring the case directly against the press, although the charges against the two staffers could have led to prosecutions against reporters.
Douglas Mancino's comments to the Senate Finance Committee concerning proposals to mandate national minimum tax-exemption standards for nonprofit hospitals were quoted by The Bond Buyer on June 1. Mr. Mancino warned that a possible mandated level of charity care would be particularly negative for nonprofit hospitals. "Mandated charity care levels will erode operating margins, which will have the effect of degrading bond ratings, which will in turn increase costs of capital," he stated, adding that measuring charitable care by the amount of money spent on it could result in "potentially bad policy decisions."
Douglas M. Mancino, Health, Nonprofit Organizations, Tax, Tax Exemption
William Gaede and Paul Devinsky were both quoted in Law360 on June 1 concerning the U.S. Supreme Court's decision to hear an appeal of In re: Bilski, in which the Federal Circuit Court limited business method patentability. "The position the Supreme Court will have to address," Mr. Gaede said, "is whether the test for patentability of processes or methods defined by the Federal Circuit is too rigid a reading of Supreme Court precedent that could result in stifling innovation in emerging industries." Mr. Devinsky noted that a key question was whether the Court would let the Federal Circuit "down easy" or deliver a strong reversal, adding: "The patent world will soon learn just how high a threshold Section 101 presents to patent-eligible subject matter."
Paul Devinsky, William Gaede, Intellectual Property, IP Litigation, Patent Prosecution
Christian von Sydow, Anja Kiewitt and Andrea Schwimmbeck were mentioned in the June 2009 issue of Juve Rechtsmarkt as legal advisors of Clinical data in a deal announcement about the acquisition of Cogenics, before part of Clinical data, by Beckman Coulter.
Anja Kiewitt, Andrea Schwimmbeck, Christian von Sydow, Corporate, Corporate - Germany, Germany
Eric Hargan was featured in a question-and-answer session on Seafoodsource.com concerning China's new food safety law, which took effect June 1. Noting the "bewildering" array of companies producing food items in China, Mr. Hargen said that the new law is "creating standards that will drive a lot of people [out of business] and will allow for greater safety - it's an unmitigated good for China and the United States" with regard to Chinese food exports. Mr. Hargen noted that the prospect of profitable Chinese seafood exports to the U.S. is attracting "producers who aren't sensitive to what they're doing, including family-owned fish farms that don't have the education and wherewithal to participate in the U.S. market in the way that they need to." He added that the new food safety law shows that "China is working toward a [food safety] system that is more stringent, regular, practical and centralized - that's a big deal."
Eric D. Hargan, Chinese Products, Health, Health - Product Regulation
Lazar Raynal was mentioned in a June 1 Chicago Daily Law Bulletin summary of his appointment to head the Firm's Trial Department. The article notes that Mr. Raynal also heads McDermott's Trust and Estate Controversy practice.
Lazar P. Raynal, Trial, Trust & Estate Controversy
Robin Greenhouse was interviewed in the June 1, 2009, Tax Analysts Tax Notes concerning key tax law issues. Ms. Greenhouse stated that the
Robin L. Greenhouse, Tax, Tax Cases, Tax Controversy
Lisa Linsky, Todd Solomon and Brian Tiemann are quoted in a June 2009 Chicago Lawyer article on diversity that includes McDermott's strong commitment to inclusiveness of lawyers regardless of their sexual orientation. Ms. Linsky noted that the Firm's 100 percent score from the Human Rights Campaign for workplace equality and inclusion of LGBT individuals "demonstrat[es] that we are mirroring our commitment to LGBT diversity much like our clients and prospective clients are." Mr. Solomon also emphasized that "the Firm is supportive of diversity," citing its sponsorship of and presence at Lavender Law recruiting events for LGBT law students. Mr. Tiemann described his recruitment for McDermott through Lavender Law, adding that the Firm's participation in the event offers assurance "indicating that they promote diversity and that diversity for LGBT lawyers is important to them."
Lisa A. Linsky, Todd A. Solomon, Brian J. Tiemann, Trial
Anne Hance gave an extensive interview to Medicare Part D Compliance Rules (June 2009) on new Medicare draft guidelines regarding Medicare Advantage (MA) and Part D plans. Ms. Hance said of the draft document overall that "it's not so much a huge directional shift. Rather, the changes that they've incorporated are really more minor tweaks and tend to offer clarification on issues that have been outstanding." However, the guidelines on compensation for plan-employed agents and brokers are "a pretty big deal because all of a sudden [companies] would have to completely modify" compensation structures for such persons. She also noted that the draft guidelines have other confusing provisions on the marketing of MA and Part D plans. Ms. Hance advised companies not to make immediate changes "given the fact that it's draft guidance, not final guidance," but suggested that they submit comments to CMS asking for clarification.
Harvey Freishtat, Jeffrey Stone and Peter Sacripanti were mentioned in the June 2009 issue of Juve Rechtsmarkt regarding the appointment of Mr. Stone and Mr. Sacripanti as co-chairmain of the Firm effective January 1, 2010.
Harvey W. Freishtat, Peter John Sacripanti, Jeffrey E. Stone, Trial
Fred Ackerson was quoted by State Income Tax Monitor on May 31 concerning various state tax provisions that make companies add back to taxable income any deductions taken for royalties and interest to affiliates. Mr. Ackerson predicted that states will embrace the logic of recent court decisions holding that challenges to addbacks must prove that they result in a disproportionate appointment of income." "You've got two standards that are at loggerheads for the interpretation of the unreasonable vs. reasonable addback," he said, and warned companies not to pay any tax that they may later challenge as an unreasonable addback. "It's always harder to ask for it back through an amended return," he noted.
Fred M. Ackerson, State & Local Tax, Tax
Keith Staats was quoted on May 31 by State Income Tax Monitor on so-far unsuccessful attempts to roll back Cook County's 10.25 percent sales tax. If a rollback does happen, he noted, "it's going to change all the sales tax returns and rate schedules for the state." Right now, Mr. Staats added, "taxpayers registered there are just having to wait and see what happens."
Keith Staats, State & Local Tax, Tax
Peter Faber was quoted in a May 30 New York Times article about companies that establish shell entities in Delaware to take advantage of that state's low taxation. He noted that in some cases a single clerk in a Delaware office may tend to dozens of shell companies. "I've seen a lot of companies with solid structures, and more with not," Mr. Faber said of the Delaware entities.
Peter L. Faber, State & Local Tax, Tax
Gregory Mocek was mentioned in Energy Weekly News on May 29 and in Resource Week on May 31 for his presentation to GasMart 2009 concerning the developing regulatory landscape for futures, over-the-counter trading and derivatives. His talk was titled, "Loophole Carpet Bombing, Market Mutations and Trader Liability."
Gregory Mocek, Derivatives, Structured Finance and Financial Products, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice
Stefan Schmitz was quoted in the May 2009 issue of Legal Business concerning the prospects for the renewable energy market in Europe. Commenting on renewable energy use requirements, Mr. Schmitz declared that "the EU will remain a strong market because the targets can't be abandoned. In fact, renewables is one of the few, if not the only, growing markets at the moment."
Stefan Schmitz, Corporate, Corporate - London, London
Paul Devinsky commented favorably for Law360 on May concerning the possible nomination of Q. Todd Dickinson, executive director of the American Intellectual Property Law Association, to head the U.S. Patent & Trademark Office. "Dickinson is well equipped to return us to a time when people felt less combative, when customers and members of the patent office did not always feel so much at war," Mr. Devinsky said. He added that the new director will face substantial challenges in implementing policy changes being considered by Congress: "The USPTO does not have enough staff to handle them. This is going to be a big resource allocation issue."
Paul Devinsky, Intellectual Property
Massimo Trentino is mentioned in the 28 May issue of TopLegal in for his advice in the creation of joint venture Orizzonte Solare which will construct 50 MWp photovoltaic fields for an investment of over Euro 250 million by the end of 2010.
Massimo Trentino, Banking & Finance - Italy, Italy, M&A and Corporate - Italy
Linda Doyle commented in the May 28 Chicago Tribune about an ongoing controversy over whether lawyers' courtroom attire has become too lax. "I think younger people see business casual … and that's what comes to court," she observed. Given that some judges object so such casualness, Ms. Doyle advised lawyers not to take unnecessary risks: "You should strive not to be distracting … except in your argument."
Raquel Rodriguez was interviewed on CNN Lou Dobbs Tonight (May 27) concerning the nomination of Judge Sonia Sotomayor to serve on the U.S. Supreme Court. Having previously been involved in the appointment process for many judges as general counsel to former Florida governor Bush, Ms. Rodriguez explained why she is withholding support from Judge Sotomayor's nomination at this time. "My focus is judicial philosophy, not political philosophy," Ms Rodriguez explained. "[T]he Senate needs to exam[ine] whether or not there is going to be any possibility of judicial interpretation through any kind of ethnic or gender-based lens. … Is this going to be a judge who is going to expand rights into the Constitution that are not there?" Ms. Rodriguez emphasized that she supports "a full and searching inquiry" on Judge Sotomayor's record, adding "I think she deserves to be interviewed on the merits."
Michael Peregrine was quoted in The Wall Street Journal on March 27 concerning the impact that the furor over executive compensation at financial firms will have on executive compensation at nonprofit organizations. "The train of greater focus on nonprofit executive compensation has left the station, and charity boards better get on, or they will suffer greatly for noncompliance," he declared. Mr. Peregrine added that nonprofits should start reviewing their compensation practices in light of the current political environment, noting that, "It just cannot be business as usual."
Michael W. Peregrine, Corporate Responsibility and Governance, Nonprofit Organizations
Todd Solomon discussed in Echelon Magazine (May 26) the California Supreme Court's upholding of the Proposition 8 ban on same-sex marriage. "Despite the loss of the right to marry, the impact for same-sex couples may not be that significant since California law still permits same-sex couples to register as domestic partners and receive all of the legal rights and protections of marriage but without the title," Mr. Solomon noted. He added that "the most significant impact" of the ruling "may be felt by couples who would have married in California and had their relationship recognized by one of the five states where same-sex marriage is legal."
Todd A. Solomon, Employee Benefits & Pensions
Raymond Jacobson was interviewed by Law360 on May 26 concerning his antitrust practice and the direction he sees for antitrust law. "What's exciting about antitrust law is that it is a blend of economic principles, industry developments and politics," he explained. "To be successful you need to understand all three disciplines and be able to convince the regulators and the courts that there are many factors, outside your client's control, that will prevent your client's conduct from being anti-competitive." Mr. Jacobson said he believes the next wave in antitrust enforcement will involve "more cases relating to 'reverse payments' in the drug industry; standard setting; bundling and price signaling. Those all remain 'gray areas.'" To view the entire Q&A click here.
Raymond A. Jacobsen Jr., Antitrust & Competition
Henry Litong Chen of MWE China Law Offices was interviewed by Dow Jones Newswires on May 26 concerning proposed regulations to implement China's new Anti-Monopoly Law (AML). Mr. Chen believes the Chinese government is using the AML to protect small and medium-sized businesses as key generators of jobs and economic growth, and he added that the government's AML enforcement mechanism has been criticized for lacking transparency. "The problem is whether or not in China there is a mechanism to rectify, to clarify ambiguity" in enforcement, he said, particularly with regard to proposed acquisitions of smaller companies by larger ones. "[T]he task of the AML … should be to promote competition," Mr. Chen declared. "If you try to read other objectives into the AML, there could be negative consequences."
Kari Larsen was interviewed by AgriTalk on May 26 regarding a wide range of commodities-related issues affecting the agriculture industry. She stated that cap-and-trade legislation now before Congress "should be a net winner for agriculture," especially since the industry is not included in mandatory emissions caps; but details on how much growers will be paid for carbon offsets have yet to be settled. Ms. Larsen also said that the volatile ethanol market "is very tied to oil prices, but what we should see is a general increase in demand, which should provide some ethanol price stability." Although both Congress and U.S. and foreign regulators have taken aim at commodities market price volatility and increased regulation is likely, Ms. Larsen asserted that "Congress has confused speculation with manipulation. Markets need speculators to provide risk protection for those who need to hedge their risks."
Kari S. Larsen, Derivatives, Structured Finance and Financial Products, Energy and Derivatives Markets, Global Renewable Energy, Emissions and New Products
Abbe Lowell was cited in the Dallas Morning News on May 23 for his representation of a prominent Dallas developer accused in a public corruption trial of bribing a former Dallas City Council member. The article noted that Mr. Lowell represented Steven J. Rosen, a lobbyist whose prosecution for allegedly leaking classified documents was recently dropped by the Justice Department.
Gregory Mocek's GasMart 2009 comments were also covered in Platt's Gas Daily (May 22), which quoted him as saying that commodities dealers should brace themselves for a "carpet bombing" of new regulations from Washington. Mr. Mocek believes that "the most active groups at the CFTC right now are … the various interest groups who think that volatile markets and high energy prices are to blame for America's woes … [and] who think the derivatives markets and derivatives in general are a bad word." He added that the end result will be more OTC trades moving to electronic platforms with significant record-keeping requirements, creating a regulatory burden that will "take a CFTC the size of the Securities and Exchange Commission" to handle.
Gregory Mocek, Derivatives, Structured Finance and Financial Products, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice
Kenneth Irvin was quoted in the second quarter edition of Corporate Board Member regarding the new duties and responsibilities directors face in light of the current economic storm. However, there are steps that directors may take to reduce their legal risk in this economy. For example, lawyers commented that directors should not only track trends that may affects sales and profits, but also track trends that could threaten your company's existence. "You may be fine and relatively healthy today," said Mr. Irvin, "but if your big customer goes under, or if a vendor goes under and you can't get critical supplies, the vortex that creates can draw you down with it."
Michael Peregrine was quoted in the May 21 BNA Daily Health Care Report concerning proposed federal legislation to codify the requirements for determining if a hospital qualifies for tax-exempt status. Noting that the battle for hospital tax exemption standards has now been joined, although the details are not yet clear, Mr. Peregrine believes one clear component that will be defined is the concept of a minimum level of charitable patient care. "The other requirements don't necessarily carry the same level of concern as does the minimum level of care," he said, "although the annual community needs analysis could become somewhat of a burden if not precisely drawn." Mr. Peregrine added that the interesting debate will be over the definitions of "minimum level" and "charitable patient care."
Michael W. Peregrine, Health, Tax Exemption
Gregory Mocek is quoted extensively in the May 21 NGI Daily Gas Price Index summary of his remarks to the GasMart 2009 Conference. "Over the last year the credit default markets have taken all the deregulatory air out of over-the-counter (OTC) trading" in the natural gas markets, Mr. Mocek observed. "[T]he whole landscape is changed, … and probably permanently." He noted that there are approximately 60 pieces of legislation before Congress, pointing toward having all OTC markets, standard or non-standard, cleared. If it is not possible to clear customized products in the natural gas markets, he added, it is likely parties will likely be forced to report trades to the Commodity Futures Trading Commission – which may not have the resources to handle the new requirements.
Gregory Mocek, Derivatives, Structured Finance and Financial Products, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice
Dennis White commented in SNL Financial (May 21) on a survey of the merger and acquisition environment by the Association for Corporate Growth and Thomson Reuters. Mr. White said the M&A market is "bottoming out," particularly with regard to middle-market companies, and added: "There is at least a guarded optimism that things are going to improve, at least in terms of deal volume, in the next six months."
Dennis J. White, Corporate, Mergers & Acquisitions
Andrew Liazos was quoted in a Law360 story on May 20 regarding a Securities and Exchange Commission proposal to give shareholders the right to nominate their own corporate board candidates. Noting that similar proposals were twice made during the Bush Administration but did not get past Republican opposition, Mr. Liazos stated that “the difference now is you have a Democratic administration and you have three Democratic appointees and two Republican appointees.”
Andrew C. Liazos, Employee Benefits & Pensions
Molly Plimpton was also quoted in a Law360 story on May 20 regarding a Securities and Exchange Commission proposal to give shareholders the right to nominate their own corporate board candidates. Ms. Plimpton cited a recent change to Delaware Corporation Law that gives shareholders greater proxy access, saying the SEC proposal enables Delaware law rather than conflicting with it. She added that the SEC initiative has no timeline for the submission of shareholder directors, which could make it difficult for corporations to include such nominees on their required proxy forms. "They're going to be nervous about that," Ms. Plimpton said.
Lawrence Bronska and Andrew McCune were featured in Chicago Daily Law Bulletin (May 18) and Law360 (May 19) concerning their move to McDermott. Mr. McCune told the Law Bulletin that he prefers the way the McDermott corporate and private equity practices are structured, calling them "a very cohesive group," while Mr. Bronska praised the Firm's "collaborative environment" and "high quality resources." For Law360 Mr. Bronska noted that the two lawyers "were really attracted to McDermott on a number of levels," while Mr. McCune singled out the Firm's "extremely well-rounded and highly regarded corporate practice, supported by equally exceptional tax, benefits, health care, energy and finance practices, among others." Brooks Guemmer commented, "Larry and Andrew have been extremely active in the private equity area for more than 20 years and enjoy exceptional reputations as leading transactional attorneys."
Laurence R. Bronska, Brooks B. Gruemmer, Andrew W. McCune, Corporate
Scott Clark was cited in a May 17 Houston Chronicle story about the economic conditions in the Houston legal services market. Mr. Clark said that patent law practices are suffering, but that his own practice stayed health enough to prompt McDermott to hire him away from his previous firm.
Scott W. Clark, Intellectual Property
Arthur Rosen was quoted in Sales and Use Tax Monitor on May 15 regarding possible New York State taxation of software downloaded from the Internet. Although such software used to be tax-exempt, Mr. Rosen said, "The state is now saying that downloading software that you use [and] that's connected to a server somewhere else is the same thing as getting a license … [and getting] a copy of the software. I don't believe that's the right way to look at it," he added.
Gregory Mocek was quoted by Reuters News (May 15) regarding the Obama administration's plan to restructure derivatives trade, which may pose a risk for the commodities markets. Experts expect the regulation to require significant data reporting that will increase transparency, but it could also include more burdensome regulations limiting positions that can be held by large players. According to Mr. Mocek, regulators "have to move carefully, because if they don't there is going to be a kind of regulatory arbitrage."
Gregory Mocek, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice, Energy and Derivatives Markets, Government Strategies
Bernadette Broccolo commented for BioWorld Today on an agreement between President Obama and a coalition of industry, insurance, health care and labor leaders to cut health care costs by $2 trillion over 10 years. "The failure of health care reform in the past was all of these constituencies taking a siloed, self-interest approach," she stated. Ms. Broccolo said that many details have to be worked out on such key issues as health IT and comparative effectiveness research, adding, "the devil is in the details." But she also noted that the agreement is evidence that the President has been able to "break the log jam" that has impeded health reform in the past.
Bernadette M. Broccolo, Health
Dennis White was quoted in a story that appeared in several city versions of The Business Journal (May 13) and other publications concerning the current merger and acquisition outlook. Commenting on a survey by the Association for Corporate Growth and Thomson Reuters, Mr. White said that "the M&A environment is clearly stalled, but there is a growing sense that we are at or near the bottom." He added that an anticipated increase in activity "will be led by sales of distressed companies to bargain-seeking private equity firms and strategic buyers. Deal normalcy will have to await a genuine loosening of the credit markets an overall improvement in the economy."
Dennis J. White, Corporate, Mergers & Acquisitions, Private Equity
Dennis White was quoted by the CFO.com on May 13 regarding the slowdown of deals. Mr. White said that some companies have few options for getting on their feet beyond selling in a distressed state or liquidating. He told CFO.com that reasons for the slowdown in deals include buyers' ability to get financing and price. According to the Association for Corporate Growth and Thomson Reuters biannual survey the industry expects merger and acquisition activity to increase in 2009.
Dennis J. White, Corporate, Mergers & Acquisitions, Private Equity
Dennis White was quoted in Business Week and by the Business Wire (May 13) in response to a biannual survey of private equity firms, law firms, and investment banks by the Association for Corporate Growth and Thomson Reuters. Of those surveyed, more than 50 percent expect the merger and acquisition activity to increase this year. "Dealmakers are cautiously optimistic," Mr. White told Business Week. He elaborated for the Business Wire, "The M&A market is clearly stalled, but there is a growing sense that we are at or near the bottom….The anticipated increase in activity will be led by sales of distressed companies to bargain-seeking private equity firms and strategic buyers. Deal normalcy will have to await a genuine loosening of the credit markets and an overall improvement in the economy."
Dennis J. White, Corporate, Mergers & Acquisitions, Private Equity
Andrew Liazos was cited on May 12 in BNA Pensions & Benefits Daily as he spoke at an ABA Section on Taxation panel concerning IRS rules governing Section 457A that applies to compensation that is deferred under a nonqualified deferred compensation plan of a nonqualified entity. Mr. Liazos noted that Treasury Department interpretation is uncertain regarding a certain unusual "side pocket" arrangement in hedge funds. This is a single asset investment that Section 457A carves out and treats as an exception.
Andrew C. Liazos, Employee Benefits & Pensions, Executive Compensation
John Hankins commented on the U.S. Patent & Trademark Office (PTO) "hoteling" program, which allows nearly a quarter of its patent examiners to work from home, for Law360 on May 12. Mr. Hankins noted that the program's goals of improving examiner morale, increasing retention and reducing PTO costs can benefit the patent applicant community, but such problems as securing in-person interviews with examiners, and ensuring that junior examiners remain in the PTO enough to get experience, still need to be addressed. And, he added, still more can be done to reduce PTO filing backlogs. "Examiners should provide applicants with first office actions that give good hints on what is patentable and be more receptive to interviews. They also should be more willing to work as a partnership with applicants to allow a patent that is valid to be granted."
John A. Hankins, Intellectual Property
Dennis White was quoted by the Wall Street Journal on May 12 regarding the Association for Corporate Growth and Thomson Reuters biannual survey. According to the survey results, more than half of private equity firms have portfolio companies that have violated loan covenants. "These are really extraordinary times," Mr. White said. "Private equity firms find it necessary to exercise more supervisory power."
Dennis J. White, Corporate, Mergers & Acquisitions, Private Equity
Bernadette Broccolo told Business Week (May 12) that the agreement between President Obama and major health care sector players to cut health care costs by $2 trillion "is very significant. It shows a dimension to the reform effort that no prior Administration was able to achieve. Ms. Broccolo said the importance of the agreement reflected the fact that "every one of the key constituencies is on the record. We all have a cynical side, but I think there is a real difference time in how serious all sides are."
Bernadette M. Broccolo, Health
Thomas Jones addressed in a May 11 Business Insurance story the implications for the property/casualty insurance industry of the Obama Administration's plan to curb the deferral of taxes on profits earned offshore. Mr. Jones noted that for property/casualty insurers "there is deferral available for certain situations," as when a U.S. insurance subsidiary in another country that underwrites risk in that country can defer taxes on the income. "A substantial erosion of deferral could be a negative factor," he stated, adding, "at this point it's too difficult to quantify until we see how this all plays out."
Thomas M. Jones PC, International Tax, Tax
Thomas Jones was also quoted in Business Insurance on May 11 that the Obama plans to curb offshore tax breaks contain "nothing specific . . . that would seem to impact offshore captives in any particular manner." Mr. Jones explained that for 20-plus years IRS rules have blocked U.S. tax deferral by offshore captive insurers. "Tax deferral and tax avoidance in captives don't mix," he stated. "Almost never do captives enjoy tax avoidance or tax deferral by going offshore."
Thomas M. Jones PC, International Tax, Tax
Daniel Jocelyn was quoted by the New York Law Journal on May 8 concerning Johnson v. Chapin, a case in which Mr. Jocelyn represented the defendant and in which the New York Court of Appeals ruled that divorce settlements should focus on equitable distribution of marital assets without second-guessing economic decisions made by spouses when they were married. Mr. Jocelyn said of the case that the Court "struck the right balance in respecting the decisions that married people make within the sanctity of their marriage with respect to how they spend their money." In endorsing equitable distribution at the time of divorce, Mr. Jocelyn added that the courts should not have the opportunity to "reanalyze" financial decisions made by a couple leading up to their divorce.
Robert Nicholas analyzed the Seventh Circuit's decision in U.S. v. Farinella in a May 8 Washington Legal Foundation Legal Opinion Letter. The decision held that the Food & Drug Administration cannot merely rely on its own assertion and opinion when claiming that food or drug labeling is misleading and in violation of the law. Mr. Nicholas concluded that "one can make a compelling argument based on Farinella that . . . both the [Food & Drug] Act and the Constitution demand more than an assertion by the FDA about what something means . . . without any authoritative support whatsoever."
Robert B. Nicholas, Health, Life Sciences & Medical Devices, Life Sciences - Health
Daniel Curto and Melissa Nott Davis, co-chairs of McDermott's Boston Office Pro Bono & Community Service Committee, were featured in a May 2009 Massachusetts Bar Association Lawyers Journal story about the office's selection to receive the Massachusetts Bar Association's Access to Justice Pro Bono Award. More than half of the Firm's Boston office lawyers do 50 or more hours of pro bono work a year, and 87 percent have some pro bono activity. Mr. Curto said the office's support for pro bono work "empowers our folks to find something they really love, and this has hade it a great success." He added that "we have a handful of pro bono partners [organizations] that we work closely with, but we don't limit our attorneys to working with them. We look to expand our partnerships as appropriate."
Daniel A. Curto, Melissa Nott Davis, Pro Bono & Community Service
Gregory Mocek was quoted in CommodityOnline (May 8) as saying that the "overarching issue" in proposed new legislation to limit commodity market speculation is whether it will fix perceived problems without creating new ones. If U.S. regulatory actions are not coordinated with those of other countries, Mr. Mocek said, it could create a situation of "jurisdictional arbitrage . . . resulting in the loss of a significant derivatives market" to offshore trading.
Gregory Mocek, Derivatives, Structured Finance and Financial Products, Energy & Commodities Government Investigations
M. Miller Baker was named Litigator of the Week by the Am Law Litigation Daily (May 7) for McDermott's victory in the U.S. Supreme Court in Arthur Andersen v. Carlisle. The U.S. Supreme Court ruling affirmed that litigants not party to an arbitration agreement can invoke federal law to seek and obtain a stay pending arbitration, if state law allows for non signatories to have access to arbitration. The decision reversed an earlier appeals court ruling and remanded the case, brought by the former Arthur Andersen accounting firm, for review. Mr. Baker said, "The court clarified and gave a very clean and crisp test for appellate jurisdiction, eliminating widespread confusion in the courts of appeals." To view the entire Litigator of the Week article click here.
M. Miller Baker, Appellate, Trial
Jonathan Boyles commented for CCH Standard Federal Tax Reports (May 7) on the IRS extension of the deadline for employers to make elections on strengthening underfunded multiemployer defined benefit plans. Mr. Boyles said the extension will give plan fiduciaries "additional time to consider their options." In particular he cited "the option of entering 'yellow zone' endangered status or 'red zone' critical status and making an election to extend the funding improvements or rehabilitation plan by an additional three years."
Jonathan J. Boyles, Benefits Plan Compliance, Employee Benefits & Pensions
Domingo Such is quoted in a May 6 story by Lawyers USA about the booming demand for trust and estate planning work in today's economic climate. Mr. Such attributed his strong volume of work to "the perfect storm of events: low valuations, low interest rates, expected changes in federal tax policies – it just creates a tremendous estate planning environment."
Domingo P. Such III, Private Client
Michael Peregrine was quoted by The Wall Street Journal on May 5 regarding more detailed disclosure on executive and trustee compensation that charities must make using new Form 990 annual reports to the Internal Revenue Service. Mr. Peregrine believes that the IRS intended the new form to involve board members more in the reporting process, stating that "The IRS feels the more the board is familiar with what's in the form, the more effective they will be in governance and oversight." He added that, for this reason, board members should be alert to and ask questions about potential conflicts of interest, excessive compensation or insider transactions revealed on the form.
Michael W. Peregrine, Conflicts of Interest - Health, Corporate Responsibility and Governance, Health
Gregory Mocek was quoted extensively by Natural Gas Intelligence/GasMart in a May 5 feature on new commodity market regulations being considered by Congress. Mr. Mocek, former head of enforcement for the CFTC, predicted passage of some form of legislation opening the over-the-counter markets to government scrutiny. He also said of an effort by Senators Levin and Collins to repeal the current prohibition on regulating the swaps market, "If they repeal those anti-regulation provisions, it will dramatically change the way that people do business" – possibly fostering "jurisdictional arbitrage and resulting in the loss of a significant derivatives market" to offshore trading because of the disadvantage from more stringent U.S. laws.
Gregory Mocek, Corporate Responsibility and Governance, Derivatives, Structured Finance and Financial Products, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice
James Riedy noted on May 5 in CFO.com that President Obama's proposal to tighten the expense-deferral rule in the taxation of U.S. corporate foreign income would be the first such effort since one made by President Kennedy. Mr. Reidy said that many details on the proposal have yet to be released, including what kind of expenses will be included in the deferral proposal, which can be anything from interest on loans and real estate taxes to CEO salaries and travel expenses. He also said that it is "grossly misleading" for the administration to call the passive income rule a loophole, especially since it was originally set up during the Clinton Administration.
James A. Riedy PC, International Tax, Tax
Katrina Crafton, Todd Solomon and Stephanie Poulos were named by the Chicago Daily Law Bulletin on May 4 as recipients of the Pro Bono Award from the Chicago Legal Clinic, Inc.
Katrina A. Crafton, Stephanie L. Poulos, Todd A. Solomon, Pro Bono & Community Service
Jennifer Geetter was quoted by AISHealth.com on May 4 in a story about the Institute of Medicine's new recommended conflict of interest policies governing the relationships between health care institutions and pharmaceutical and medical device companies. "One of the challenges in management [of conflicts of interest] right now is most people recognize that they need to do it, but there are a lot of question marks around the how," Ms. Geetter said. "Now institutions are looking for matches between individual interests, imputed interests and institutional interests," which makes the process more inter-related and complex. She added concerning such relationships, "This is not just a compliance issue – it is a process issue. You [must] have a process in place that is flexible and elegant enough, that can handle all your problems, but is simple and transparent. And it has to be integrated into the other parts of your organization."
Jennifer S. Geetter, Conflicts of Interest - Health, Health
M. Miller Baker was cited in a May 4 Law360 story on a U.S. Supreme Court ruling which affirmed that litigants not party to an arbitration agreement can invoke federal law to seek and obtain a stay pending arbitration, if state law allows for non signatories to have access to arbitration. The decision reversed an earlier appeals court ruling and remanded the case, brought by the former Arthur Andersen accounting firm, for review. "We are obviously very pleased," declared Mr. Baker, who had argued the case on behalf of Arthur Andersen.
M. Miller Baker, Appellate, Trial
Abbe Lowell was cited May 1-2 in leading newspapers, including the Los Angeles Times, New York Times, Washington Post and Wall Street Journal, when the U.S. Department of Justice announced it would drop all charges of violating the Espionage Act against two former staffers at the American Israel Public Affairs Committee for allegedly passing along classified information on Iran to unauthorized individuals, including Israeli Embassy officials. Mr. Lowell served as defense counsel to Steve Rosen, one of two staffers who had faced trial in U.S. District Court. Both the Post and the Journal noted Mr. Lowell's belief that the government's action could in part be attributed to the Obama Administration, "We are extremely grateful that this new Administration . . . has taken seriously their obligation to evaluate cases on the merits."
Peter Faber told CFO.com on May 1 that states will likely increase their tax enforcement efforts on businesses in order to raise revenue. "We're seeing an intensification of audit activity for corporations, which is where I think the states feel the big money is," he declared.
Peter L. Faber, State & Local Tax, Tax
Lisa Linsky was cited in Diversity & The Bar (May/June 2009) for her appointment to lead McDermott's diversity initiatives and programs as first partner-in-charge of firm-wide diversity. The article noted that Ms. Linsky created and has chaired McDermott's innovative Lesbian, Gay, Bisexual, and Transgender (LGBT) Diversity Committee since 2006, and will continue to do so.
Arthur Rosen told Sales and Use Tax Monitor on April 30 that it is not a new phenomenon for governmental entities to make "temporary" tax increases permanent. "It's always been that way. The 1913 federal excise tax on phones was passed to fund the war and was never repealed," he explained. "It's much more common than not for temporary taxes not to be repealed."
Arthur R. Rosen, State & Local Tax, Tax
Rick Mitchell discussed in an April 2009 International Financial Law Review article the negotiation of exchange offers by companies that need short-term cash and debt restructuring. "An exchange offer cuts through all jurisdictional conflicts because it is not a compulsory proceeding like an insolvency – it's entirely consensual," he explained. "It's super-charged cash, because you're not only reducing your debt, you're changing the terms of that debt." He added that exchange offers are likely to become more common. "We'll start to see people who are clever, and courageous in some cases, buying in at 15 cents on the dollar and selling to the company at 30."
Richard Mitchell, Banking and Finance - London, Corporate, Corporate - London, Finance & Banking, London, Restructuring & Insolvency
Eugene Goldman described for Law.com on April 28 the challenges of defending and advising overseas clients that are faced with white-collar crime investigation and prosecution by the U.S. Securities & Exchange Commission and Department of Justice. Mr. Goldman travels to offshore clients' companies to prepare them for an SEC investigatory visit, or even a conference call with the SEC. "The foreigner is not familiar with the aggressiveness of an SEC investigation," he explained. "You need to make sure there is no false comfort because they're in a foreign country."
Link to: Eugene , Washington, D.C., Trial,
Eugene I. Goldman, SEC Defense, Trial
David Beckwith discussed the recession's effect on patent filings and litigation for The Daily Transcript "Law Week" on April 28. He noted that cost concerns have "led many companies to be more selective in pursuing patent protection for their core technologies, and [to] be more discriminating in the jurisdictions where patent protection is sought." Mr. Beckwith added that companies are also being more selective in pursuing infringement litigation, instead being "more willing to entertain licensing arrangements, so as to avoid the financial statement impact of the significant attorney's fees typically required to pursue a patent infringement lawsuit."
David M. Beckwith, Intellectual Property, Trademark/Brand Protection & Enforcement
Abbe Lowell was quoted on Timesunion.com on April 27 concerning his representation of former New York State Senator Joseph Bruno in a federal criminal trial. Mr. Lowell filed a letter with the U.S. District Court, requesting an additional three months to prepare an oversize defense memorandum challenging the government's case. "The United States has produced more than 43,000 documents, amounting to dozens of boxes worth of materials that must be reviewed," Mr. Lowell stated in his letter, adding that his client "is in the process of getting an additional 50 to 70 boxes of documents."
Bernadette Broccolo was quoted in an April 27 Modern Healthcare story about a healthcare communication systems company that formed an advisory board of seven nurse executives from hospitals that use the company's products. Ms. Broccolo believes that the advisors could still ethically discuss the company's products at their hospitals, but that they should disclose their advisory relationships and refrain from voting on product decisions to avoid any impression of bias. "What everyone is clamoring for first and foremost is . . . that any kind of participation in advisory groups of these kind[s] be made in the sunshine," she stated.
Bernadette M. Broccolo, Conflicts of Interest - Health, Health
Scott Clark was called "a key hire" and "a considerable" gain for McDermott's Houston office in an April 27 Law360 story stating that he has joined the office as an intellectual property partner. Mr. Clark, who joined the Firm from Howrey, said that "McDermott offered me a great opportunity to come in at a very exciting time, when the firm is a couple of years into developing an outstanding office in Houston." He added that McDermott's "highly desirable, worldwide IP scope and stellar rankings within the industry will launch opportunities for me and my practice."
Scott W. Clark, Intellectual Property
Jeffrey Stone spoke to the Chicago Daily Law Bulletin (April 25) about McDermott's separate career track for full-time staff lawyers who are a cost-effective resource for clients. Mr. Stone said that the staff lawyers provide support services to litigation around the country and also do due diligence on corporate transactions, and added about the concept: "We think we have priced it in a way very attractive to our clients."
Doron Ezickson was quoted extensively in the "Global London Firms and the Legal 500" feature in the April 2009 Legal Business. McDermott's 79-lawyer office continues to rank among the top 20 of the global firms listed, and Mr. Ezickson, seeing "more opportunities in this market," said of future growth, "It's more likely we'd hire groups of partners rather than undertake a merger." He also noted of London that "this market is undergoing a restructuring," and that McDermott is adjusting to that by focusing the London office on corporate practice plus such internationally important practices as IP. Mr. Ezickson added, speaking of the recession, "Right now . . . we're just helping our clients get through this."
Doron F. Ezickson, Government Strategies
Jeffrey Stone was included in an April 25 Chicago Daily Law Bulletin story about former Chicago federal prosecutors who now have a white-collar defense practice. The story noted that Mr. Stone is McDermott's co-chair elect, and placed him among the former prosecutors who have maintained the integrity and peer respect that they had developed as prosecutors. "When I was at the U.S. Attorney's Office," Mr. Stone explained, "one of my mentors always said, 'If you wouldn't be comfortable seeing it on the front page of the Chicago Tribune, or you wouldn't be comfortable having your mother read about it the next morning, don't do it.' [I]t's . . . a simple aphorism, but it's true."
Jeffrey E. Stone, Trial, White-Collar Criminal Defense
Massimo Trentino and Francesca Viggiani are mentioned in the 24 April edition of TopLegal for their work for Barclays Global Investors in the registration and listing of a brand new ETF belonging to the iShares family bearing the name of iShares III plc. McDermott also assisted in the launch on the Italian Exchange of a new sub-fund of iShares II plc.
Massimo Trentino, Francesca Viggiani, Banking & Finance - Italy, Italy, M&A and Corporate - Italy
Mark Itri noted on April 24 for Law360 that unanticipated problems can arise for companies that use open source software. One example is if company management is unaware that software engineers have attempted to meet development deadlines by plugging open source programs and applications into larger proprietary products without proper licensing. The result could be violation of a license and copyright infringement. "Although open source software is free to use," Mr. Itri said, "it will come at a price if a company has to remove it. If a company has violated an open source agreement, it may be stopped from using its whole program or may have to sell its program for free." He added that companies "are not policing [open source] use as well as they can, and are not thinking out the consequences of their use to the furthest extent."
Mark J. Itri, Intellectual Property, Licensing
Robert Nicholas analyzed the U.S. Seventh Circuit's decision in United States v. Farinella for Health Lawyers Weekly (April 24). The decision rejected the Food & Drug Administration's assertion that "misleading" product labeling violates the "misbranding" provisions of federal law. Although the case related to a food product, Robert noted that it has "significant potential applications" for prescription drug and medical device advertising and promotion, where "the FDA often relies only on its own expertise in deciding what meaning to ascribe to otherwise ambiguous and undefined representations."
Robert B. Nicholas, Health, Life Sciences & Medical Devices, Life Sciences - Health, Life Sciences - Medical Device & Technology
José Luis Vittor was quoted by GlobeSt.com on April 24 concerning whether the National Infrastructure Bank planned by the Obama Administrations 2010 Budget will dramatically boost U.S. infrastructure development. The Bank is intended to facilitate public/private infrastructure projects, but, as Mr. Vittor observed, "[T]here are not that many projects ready to put up for public private mechanisms. A lot of local governments are not ready, or have not done the necessary process, to have a project that could be viable or attract private sector financing." Mr. Vittor sees private investments continuing to flow to Canada and Latin America, "not because of lack of interest in the U.S. but because of lack of projects and lack of a regulatory apparatus."
José Luis Vittor, Corporate, Latin America
Abbe Lowell was mentioned in an April 19 Washington Jewish Week story for his role as defense counsel to Steve Rosen, one of two former staffers at the American Israel Public Affairs Committee who are charged with violating the World War I-era Espionage Act for allegedly passing along classified information on Iran to unauthorized individuals, including Israeli Embassy officials.
Filippo Mazza and Carsten Steinhauer are mentioned in the 15 April 2009 edition of TopLegal for their advice to ERGO Insurance Group in the sell-out and squeeze-out procedures aimed at the delisting from the Milan Stock Exchange of one of ERGO’s Italian subsidiaries ERGO Previdenza S.p.A..
Filippo Mazza, Carsten Steinhauer, Corporate, Italy, M&A and Corporate - Italy, Mergers & Acquisitions
Mark Opper spoke to Financial Crisis Advisor (April 13) about the impact that the American Recovery and Reinvestment Act (ARRA) will have on bank acquisitions. Prior to the ARRA's passage, acquiring banks could rely on IRS Notice 2008-83 to use a target bank's pre-existing built-in losses to shelter the acquirer's income. However, Congress repealed the Notice in the ARRA, meaning that it is not relevant for any deal agreed to or announced after January 16, 2009. Mr. Opper noted that acquisitions with a "written binding contract" entered on or before that date or a "written agreement" made public by that date can still get the tax benefits and savings provided by Notice 2008-83.
David Marx, Jr., was quoted April 13 on AmericanLawyer.com concerning antitrust litigation against four major candy manufacturers. Referring to price-fixing allegations against the companies, Mr. Marx declared, "You can't just infer the existence of a price-fixing conspiracy from the fact that independent competitors in concentrated industries independently chose to raise their prices."
David Marx Jr., Antitrust & Competition, Trial
Michael Kendall was cited in Massachusetts Lawyers Weekly (April 13) for his nomination to the BTI Client Service All-Star Team.
Stephen Ryan was quoted in The National Journal on April 11 concerning the dismissal of charges brought by the U.S. Justice Department against former U.S. Senator Ted Stevens. Mr. Ryan said the dismissal means that Justice Department prosecutors "will be subjected to more adult supervision and will face greater scrutiny" as they prepare cases for trial. He also stated that the flaws in the prosecutors' handling of the case will make defense lawyers more aggressive, adding, "The defense in the Stevens case offers a textbook example for other lawyers on how to find a procedural flaw that gets you a get-out-of-jail-free card for your client."
Stephen M. Ryan, Government Strategies, Trial
Jeffrey Stone and Peter Sacripanti were quoted by Legal Week and The Am Law Daily on April 4, discussing their election as the Firm's new co-chairs and commenting on McDermott's strengths and global position. Mr. Stone noted that the Firm "has been going through a [Firm-wide] strategic planning process for the past year, and we're well positioned to build on that vision through our platform of offices around the world." He also cited the fact that McDermott has no bank debt, to which Mr. Sacripanti added, "Our profit pool that's generated by our partners is our bank. And that's how we finance ourselves, and it’s given us enormous flexibility in these tough economic times." To read the entire article click here.
Peter John Sacripanti, Jeffrey E. Stone, Trial
Kate Feola was quoted in ePharmaceuticals (April 2009) about the Massachusetts Pharmaceutical and Medical Device Manufacturer Conduct regulations. Pharmaceutical and medical device companies must annually disclose to the Massachusetts Department of Public Health any payment or economic benefit with a value of at least $50 made for sales or marketing. Ms. Feola said that the disclosure requirements are not new to pharmaceutical companies. However, Ms. Feola said that Massachusetts is the first state to require financial disclosure by medical device companies which will increase compliance challenges facing the manufacturers. "Device manufactures have never had to think through what systems, whether manual or electronic, are necessary to ensure the company is accounting for all of the expenses that must be reported to the state, what accounts are those expenses coming from, and to whom they are being paid."
Kate W. Feola, Health, Life Sciences & Medical Devices, Life Sciences - Health, Life Sciences - Medical Device & Technology
Neil Kawashima is mentioned in an April 7 story by The Wall Street Journal concerning defective grantor trusts. The trusts can be used to move money out of taxable estates and transfer gains to heirs tax-free, and despite their risks have seen increased interest in the wake of the market declines in real estate and stocks. Mr. Kawashima expects that he will increase the number of these transactions he executes this year by nearly one-third.
Neil T. Kawashima, Private Client
Jeffrey Stone and Peter Sacripanti were also quoted in a Legal Week story on April 6 summarizing their election as the Firm's new co-chairs. Mr. Stone said of the unique co-chair arrangement, "We thought that the two of us working together could achieve more and give us a greater capacity to address the challenges that exist in today's economic world. We also believed that our complementary skills made both of us stronger than either of us would be individually." Mr. Sacripanti pointed out the additional benefit from the fact that the co-chairs are based in two different offices. "We want to be able to project in different places at the same time, and Jeff and I are in constant communication on a daily basis. Chicago is our largest office and New York is our third-largest office, so we are looking at this [union] as a strength."
Peter John Sacripanti, Jeffrey E. Stone, Trial
Gregory Mocek was quoted extensively in an April 6 story by Energy Metro Desk concerning new final rules that will increase oversight of the exempt commercial markets (ECMs) by the Commodity Futures Trading Commission (CFTC). Mr. Mocek, former head of CFTC enforcement, says that the "most earth-shifting aspect" of the final rules is "the breadth of the new core principles that will apply to electronic trading facilities." He noted that commodity exchanges will now be required to monitor significant price discovery contracts (SPDCs) to ensure they are not subject to manipulation, but added that "until Congress decides to properly fund and staff the CFTC, you will not see many changes" in overall enforcement.
Gregory Mocek, Energy - Regulatory and Compliance Advice, Government Strategies
Robert Nicolas was quoted April 3 in Dickinson's FDA Webview concerning the Seventh Circuit Court of Appeals reversal in a jury conviction of a food manufacturer for misbranding food. The conviction had hinged on the FDA's unfounded assertion that a "best when purchased by" date was the same as an "expiration date" that could raise freshness or safety concerns for consumers. The attorney said that the FDA's interpretation lacked empirical support about the term's meaning, and added: "Surely the First Amendment demands at least some reliable extrinsic evidence . . . before FDA can simply assert, in the absence of any otherwise controlling authority, that consumers comprehend ambiguous advertising and labeling claims in the way the agency alleges."
Robert B. Nicholas, Health, Health - Product Regulation, Life Sciences & Medical Devices, Life Sciences - FDA
Jeffrey Stone and Peter Sacripanti were cited in an April 3 Chicago Tribune story about their election as McDermott's co-chairs. The story called McDermott "one of the nation's largest and most profitable firms," and noted that the new co-chairs are both former federal prosecutors who have become top trial lawyers at the Firm.
Peter John Sacripanti, Jeffrey E. Stone, Trial
Christopher Jedry was cited in April 2 press reports on Business Wire and M2 Presswire concerning his online seminar, "Foundation Model Proposal for a Hospital." The seminar presentation is viewable on computer or iPod, and offers innovative ideas and best practices for structuring such a proposal.
Abbe Lowell is cited in stories that appeared April 1 in the [Biloxi] SunHerald, April 2 on HuffingtonPost.com and April 3 on OpEdNews.com concerning the latest developments in the appeal of the case against Paul Minor, formerly a top trial lawyer in Mississippi who was convicted of judicial bribery. The appeal is being heard by the Fifth Circuit Court, and shortly before the latest proceedings began, Priscilla Owen, one of the three judges hearing the appeal, announced her recusal. As Minor's attorney, Mr. Lowell asked the panel to consider releasing Minor while they deliberate the appeal, a request which Minor's legal team has repeatedly argued is required by law, and which Owen had denied.
Jeffrey Webb was quoted by Law360 on April 1 regarding a U.S. Supreme Court decision in 14 Penn Plaza LLC v. Pyett that held that collective bargaining agreements that require union members to arbitrate Age Discrimination in Employment Act (ADEA) claims are enforceable. Mr. Webb believes that the decision is a victory for those who believe that arbitration is preferable to the courts for resolving disputes. He also said, "Before this decision, companies were often subjected to double jeopardy – first they would have to defend against a discrimination claim in a arbitration with a union, and then they could be subjected to the very same claim again in a discrimination case in court, even if they had prevailed in an arbitration."
Jeffrey F. Webb, HR & Employment Litigation, Labor & Employment, Trial
Eric Zimmerman was extensively quoted in BNA's Daily Health Care Reporter on March 30 regarding final rules for the Centers for Medicare and Medicaid Services (CMS) to reimburse ambulatory service centers (ASCs). Mr. Zimmerman said the new rules "are really shaking up the industry" by more closely aligning ASC reimbursement with hospital outpatient surgical services. However, because of statutory budget constraints, CMS pays ACSs considerably less than hospitals. "It's outrageous to think that ACSs can furnish procedures for that little money," Mr. Zimmerman stated. ACSs seeking reimbursement must also submit quality and performance data, but Mr. Zimmerman noted that "there is no indication" that CMS will adopt industry suggestions for what this data should contain.
Eric Zimmerman, Health, Life Sciences & Medical Devices, Reimbursement/Fraud & Abuse
T. Reed Stephens was quoted in a March 30 story in The National Law Journal concerning letters about marketing practices sent by the Food & Drug Administration (FDA) to pharmaceutical companies. State attorneys general increasingly use the letters to sue those companies for false advertising. Mr. Stephens urged companies who receive such letters to assess their marketing practices for compliance problems, adding that "[w]hen you get this type of regulatory action from the FDA that's public, you do need to take proactive measures to better understand what's going on under the hood of your car."
T. Reed Stephens, Government Strategies, Health, Life Sciences & Medical Devices, Life Sciences - Health
William Gaede was quoted in a detailed BNA Life Sciences Law and Industry March 27 report on the impact that bills introduced in Congress to "reform" the patent law system could have on life science/medical device companies. He focused specifically on the reasonable royalty measure of damage provisions for infringement in the pending S. 515, saying that they "put a level of rigidity into the analysis that ultimately may fail to capture the value of patent contributions to the overall value of infringing product or process." He noted that a patented composition or process "may be a small component of a product, but without that composition or process the product may not be operable, have sufficient value, or even be able to be produced," and that by not giving them due weight S. 515 may “potentially encourage infringement."
William Gaede, Intellectual Property, Life Sciences & Medical Devices, Life Sciences - IP
Stephen Bernstein's article, "Appeals Court Ruling Severely Undermines Speech Rights" was republished in March 2009 in the American Health Lawyers Association Practice Groups Member Briefing.
Stephen W. Bernstein, Health, Life Sciences - FDA, Life Sciences - Health
Gregory Mocek, former chief of law enforcement at the Commodity Futures Trading Commission (CFTC) was quoted on March 27 in The Wall Street Journal and in a subsequent report on Dow Jones Newswires Energy Service concerning new CFTC anti-speculation rules that could cap the positions that certain financial traders take. "Initially it'll reduce the liquidity in the derivatives market, but the markets are going to adapt to it," Mr. Mocek said. He added for Dow Jones Newswires that the change will not necessarily make commodities markets more transparent. "Millions of times each year, people trade through other people, who trade through others, and the CFTC has no ability to perform surveillance."
Gregory Mocek, Derivatives, Structured Finance and Financial Products, Energy & Commodities Government Investigations, Government Strategies
Abbe Lowell is quoted in the Albany Times-Union concerning his defense of former New York Senate Majority Leader Joseph Bruno against criminal charges. Bruno allegedly violated federal law by denying the public of 'honest services,' but Mr. Lowell asserts that the charges are "an unprecedented expansion of the 'honest services' theory that should trouble every part-time legislator because of its attempts to make criminal a person's need to have an outside job."
Michael Peregrine was quoted in the March 2009 issue of Trustee magazine regarding the increased scrutiny on board of director members as the result of the Sarbanes-Oxley Act and other regulations. "The job is not harder than before [and] Sarbanes-Oxley should not frighten people away," Mr. Peregrine said of potential directors. "Board work is not more risky, it just requires more self-reflection on the qualities of a good board and a better job of managing those duties. Liability is not greater than before, it's just the prism of how the board is looked at that has changed." Mr. Peregrine recommended that board members "be able to explain your fiduciary responsibilities," adding, "If you are informed and alert and do your homework, you should have no problem."
Michael W. Peregrine, Corporate Responsibility and Governance, Health
William Gaede was quoted in the March 27 BNA Life Sciences Law and Industry regarding the Federal Circuit Court of Appeals decision in Tafas v. Doll. The decision upheld several new Patent & Trademark Office rules intended to limit the number of an applicant's requests for continued examinations and the number of independent claims. Mr. Gaede observed that Tafas struck down Rule 78, which limited continuations to two, but upheld Rule 75, which limits independent claims and total claims to five and 25 respectively. "The limits on the number of claims and the practical effect that subject matter will have to be pursued in continuations to obtain comprehensive coverage will delay the ability of an entity to obtain comprehensive coverage," he said, and because of that delay "a cloud could be put on the financing efforts" to monetize or license patents, since investors cannot be confident a patent will be granted.
William Gaede, Intellectual Property, Life Sciences & Medical Devices, Life Sciences - IP, Life Sciences - Medical Device & Technology
Gregory Mocek was quoted in a March Energy Metro Desk story on the new personnel and resulting expected emphasis on enforcement at the CFTC. Mr. Mocek, former head of enforcement at the CFTC, says that the Commission will face "a tremendous task to define how to regulate such a nebulous concept as speculation or excessive speculation." He asserts that in its increased enforcement push, "Congress continues to confuse manipulation and speculation. Manipulation is illegal and distorts markets. . . . Speculation is both legal and necessary for properly functioning markets." Mr. Mocek warns that, if U.S. regulators unilaterally step up enforcement of global commodities trading, "going it alone will only create more risk," plus "significant revenues in derivatives trading will be lost." To that end, he urges against giving the CFTC the criminal prosecution authority now exercised by the Justice Department.
Gregory Mocek, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice, Energy and Derivatives Markets, Government Strategies
Astrid Spain told Law 360 on March 27 that the Federal Circuit's Tafas v. Doll decision is a shock to everybody in the Patent Office customer community. "Practitioners consider these rules drastically altering to their practice of obtaining thorough patent coverage for their clients' technology," she stated. The court decision held that the rules were merely procedural and thus within PTO authority, but Ms. Spain asked, "If these rules are procedural, what else can the patent office do? How much more drastic do they have to be so that they are substantive?" She added that they create delays that "could be a huge problem for a computer company, because of how important it is to get protection for its technology fast out of the gate."
Astrid R. Spain, Intellectual Property, IP Litigation, Patent Prosecution
Eugene Goldman was quoted in a March 26 Law360 story on the potential for stricter securities law enforcement by the Financial Services Authority (FSA), the United Kingdom's financial market regulatory body. He noted that the FSA web site increasingly carries press releases covering agency lawsuits over fraud and market abuses, adding that "It's starting to resemble the SEC web site."
Eugene I. Goldman, SEC Defense, Trial
Katie Clark is featured in a March 24 question-and-answer session by Personnel Today, concerning the UK's statutory holiday entitlement. The Working Time Regulations (WTR) give employees in the UK a statutory right to take a minimum of 24 days in annual paid leave, and that increases to 28 days effective April 1. "There is no legal obligation on an employer to insist that workers take their statutory holiday entitlement," Ms Clark says. "The obligation is to allow a worker to take holiday if he or she wishes to. There are, however, motivational and health and safety reasons for an employer to encourage annual holiday to be taken."
Katie L. Clark, Employment - London, Labor & Employment, Labor Relations
Lisa Linsky was quoted in an April 24 story in Echelon Magazine about McDermott's successful pro bono effort, in conjunction with Lambda Legal, to reverse the Social Security Administration's denial of insurance benefits to the children of a disabled gay father who had fulfilled all prerequisites for the benefits. Noting that a number of McDermott Trial and Employee Benefits lawyers had participated in the effort as part of the Firm's commitment to pro bono and diversity, Ms. Linsky said that the Social Security Administration's reversal "validated fundamental principles of law and public policy," and that it "confirms the rights of all parents and children, regardless of the parents' sexual orientation." Other McDermott lawyers on the team included Amy Gordon, Elizabeth Philpott and Todd Solomon.
Amy M. Gordon, Lisa A. Linsky, Elizabeth P. Philpott, Todd A. Solomon, Employee Benefits & Pensions, Pro Bono & Community Service, Trial
Michael Wilder was cited in the March 23 Washington Post for being named a partner in the Firm's Tax Department. Mr. Wilder is a former lawyer with the Office of Chief Counsel of the Internal Revenue Service.
Byron Kalogerou is quoted in a March 23 Business Wire release concerning the announcement by LexisNexis that it will provide access to a wide range of online resources from its M&A Practice Center directly into a market leading enterprise software solution developed by XT2 Systems. McDermott is an XT2 Systems client, and Mr. Kalogerou says that the firm "expect[s] to increase the value of our M&A legal advisory services through the use of this combined solution." He states his belief that McDermott "will have a strategic advantage over other law firms with similar advisory services since we are leveraging technology to increase the value of our services to our clients and providing our clients with crystal clear visibility into all aspects of their M&A transactions."
Byron S. Kalogerou, Corporate, Mergers & Acquisitions, Telecommunications
Gregory Mocek was quoted in a March 20 Reuters news report concerning increased federal efforts to control alleged commodities speculation. Mr. Mocek, former chief of law enforcement at the Commodity Futures Trading Commission, believes that in such efforts "Congress has confused speculation with manipulation." He added that "there is no doubt that if Congress overreacts and places too many restrictions on speculating in these markets, the markets could be damaged and potentially move offshore" – which, he noted, would be the opposite of what lawmakers want.
Gregory Mocek, Energy & Commodities Government Investigations, Energy - Regulatory and Compliance Advice, Energy and Derivatives Markets, Government Strategies
Ryan Smethurst was quoted on March 18 by Law360 regarding a Swiss Re report that economies and businesses in Asia face a high risk of catastrophic losses. China had tremendous financial losses in 2008 due to natural disasters, causing great financial risks to governments in Asia. These risks will give rise to the development of insurance...to cope with the financial consequences of catastrophes. Mr. Smethurst said, "Unmet first- and third-party insurance needs in Asia are on the rise….The tragic 2008 earthquake in Sichuan...may have provided last year's most stark example of uninsured first-party risk, as Swiss Re notes, but the liability insurance market in China also remains underdeveloped and underutilized….As with the need for increased capacity, the development of refined policy provisions and a broader acceptance of insurance as a hedge against loss are needed to help restore recent damage to the Chinese economy."
Ryan S. Smethurst, Insurance Disputes, Trial
Eric Hargan, Robert Nicholas and Sheila Walcoff's article, "President Obama Announces FDA Commissioner and Deputy Commissioner Appointments" was mentioned in a March 17 story by Dickinson's FDA Webview.
Eric D. Hargan, Sheila D. Walcoff, Health, Life Sciences & Medical Devices, Life Sciences - Health
Gregory Lawrence is quoted in Your Industry News on March 17 concerning the renewable energy incentives in the federal stimulus package. "It is to be seen how this money is delivered to the economy." Mr. Lawrence states.
Gregory K. Lawrence, Energy and Derivatives Markets, Global Renewable Energy, Emissions and New Products, Government Strategies
Abbe Lowell was quoted in a March 16 story by the Legal Times regarding a move made by Congress to strengthen a law restricting gifts to public officials. On March 12 the Senate Judiciary Committee approved legislation to broaden the ban on the giving or receiving of illegal gratuities. The bill would also extend statues of limitation and increase potential prison time for some crimes, and appropriate $100 million over four years for corruption charges. Two D.C. cases however limited the existing gratuities ban; precedent the white-collar defense bar doesn't want erased. Mr. Lowell commented, "When courts rule that certain minimums are required to protect citizens in criminal law, Congress shouldn't then try to legislate away those protections."
Abbe D. Lowell, Trial, White-Collar Criminal Defense
Marc Sorini was quoted in a March 16 Los Angeles Times story regarding the taxation of flavored malt beverages, which California authorities reclassified as liquor for tax purposes, increasing tax rates. California has collected far less revenue than expected, as manufacturers reformulated their products to qualify as simple beers not subject to the tax increase. Mr. Sorini, attorney for the Flavored Malt Beverage Coalition said, "What happened is exactly what we said was going to happen….We told them over and over again at the hearings that this is what we would do."
Marc E. Sorini, Alcohol Regulatory & Distribution, Excise Taxation - Alcohol Regulatory & Distribution, Labeling - Alcohol Regulatory & Distribution, Product Formulation - Alcohol Regulatory & Distribution
Mark Pearlstein, Thomas Ryan, Jeffrey Stone, Charles Weir and Gregory Jones were mentioned in the March issue of American Lawyer for their representation of DaVita, Inc. McDermott has represented DaVita for ten years as regular outside litigation counsel.
Gregory R. Jones, Mark W. Pearlstein, Thomas A. Ryan, Jeffrey E. Stone, Charles E. Weir, Trial
Latonia Haney Keith was quoted in a Chicago Lawyer Magazine Q&A feature on March 16, speaking about her pro bono and community service practice. She noted that the most interesting part of the practice is "finding innovative ways in which McDermott Will & Emery, as well as law firms in general, can address the unmet legal needs of low-income individuals and communities throughout the United States and abroad. Ms. Keith added that the current recession "is dramatically affecting the public interest law firms and agencies that serve our communities' most needy individuals, who are themselves faced with greater legal issues as a result of the economy.
Latonia Haney Keith, Pro Bono & Community Service
Arthur Rosen is quoted on March 15 in the State Income Tax Advisor concerning the difference between ethical and legal behavior in corporate tax matters. "Many times people equate ethics with organizational requirements and whether what they will do would cause bad press for the company," Mr. Rosen observes. He adds that while such a perspective is not wrong, "You shouldn't think about getting away with something. You should do what's right, no matter the monetary amount at issue. You should deal with government the same way you deal with society."
David Ivill was quoted in Crain's Health Pulse on March 13 concerning the easing of federal restrictions on stem cell research. Speaking of companies that are tissue banks and clinical laboratories in the state of New York, Mr. Ivill noted that "many of my clients say this promises more opportunities." He added that although New York imposes very strict regulation on the business practices of these companies, it is one of the few states funding millions of dollars in stem cell research.
Astrid Spain was quoted in a March 10 Law360 story that discussed congressional hearings on the latest version of a bill to overhaul the U.S. patent system. Ms. Spain noted that reform must be approached in light of key decisions by the U.S. Supreme Court and the Federal Circuit Court of Appeals, which have made it much more difficult to secure as well as to defend patent rights. As she stated, "Even ardent supporters of the reforms have to admit that the proposed changes must be re-evaluated against the backdrop of a drastically different economic and legal landscape than the one in which the reforms were initially contemplated."
Astrid R. Spain, Intellectual Property, IP Litigation, Patent Prosecution
Steve Ryan was interviewed on March 10 by FederalNewsRadio regarding President Barack Obama's measure to reform the government procurement process. Mr. Ryan said that this measure could go either way, "It could be quite meaningful if it's carried out to fruition….On the other hand, there's not much guidance on what it really means." President Obama called for an end to no bid contracts, and called for greater competition for contracts. Mr. Ryan said that this is the opposite of many of the procurement reforms made in the 1990s. To hear the entire interview click here.
Stephen M. Ryan, Government Contracts and Public Procurement, Government Strategies
Greg Lawrence was quoted in a March 10 Dow Jones Newswires column which predicted that the U.S. economic stimulus plan could spur U.S. investments by European renewable energy companies. The plan allows companies to receive money up front to help build new renewable energy generation, rather than having to sell tax breaks to banks in exchange for project financing. "It's money in the pocket today," Mr. Lawrence observed, "as opposed to a series of transactional relationships."
Gregory K. Lawrence, Energy and Derivatives Markets, Government Strategies
Jeffrey E. Stone was mentioned March 9 on Eight Forty Eight regarding the Chicago Bar Foundation's (CBF) Investing in Justice Campaign. Mr. Stone, partner and head of McDermott's Trial Department, will chair CBF's 3rd Annual Investing in Justice Campaign this March. CBF states that there are fewer than 300 legal aid attorneys in the region for more than one million low-income residents who qualify for their services. To hear the entire interview click here.
Jeffrey E. Stone, Pro Bono & Community Service, Trial
Geoffrey Vance was quoted in the March 2009 issue of Chicago Lawyer regarding the use of online social networking sites. The multitude of social networking sites such as LinkedIn, Facebook and Legal OnRamp has connected lawyers with colleagues, clients and friends. These networking sites have created an outlet for lawyers to expand their network dramatically. Mr. Vance uses social networking to gather facts about opponents in trials. Mr. Vance said, "I make it a practice to use as many sources as I can come up with to find information about the other side." He continued, "We used to run LexisNexis; we still do that. We always look at cases, and now we use the Internet – Google, and social networking sites."
Geoffrey A. Vance, Trial, White-Collar Criminal Defense
Eric Hargan was quoted on March 3 by The U.S. News & World Report regarding President Obama's appointments of Nancy-Ann DeParle as the director of the White House Office of Health Reform and Kathleen Sebelious as secretary of health and human services. Mr. Hargan, former deputy secretary at HHS, said that the Obama administration was "doing themselves a real service by splitting those offices up." Mr. Hargan was originally quoted by The Washington Times on March 2.
Eric D. Hargan, Health, Life Sciences & Medical Devices
McDermott Will & Emery's March 3 webinar titled "The Stimulus Package and What It Means to You" was mentioned on March 4 by Taxanalysts. The webinar covered hot tax topics in the stimulus bill and how they affect business. Key topics included, spending and tax credits for energy efficiency and renewable energy; health IT incentives and infrastructure, HIPPA amendments and comparative effectiveness studies; and procurement and appropriations.
Eric Hargan was quoted on March 2 by The Washington Times regarding President Obama's appointment of Nancy-Ann DeParle as the director of the White House Office of Health Reform. President Obama also announced the appointment of Kansas Gov. Kathleen Sebelius to be secretary of health and human services. Mr. Hargan, former deputy secretary at HHS under President Bush, commented that "the Obama administration was 'doing themselves a real service by splitting those offices up." He continued, "It's too much. Sebelius would be handing the largest civilian department in the fed government. It's a quarter of the federal budget, an enormous place….And to add to that to try to handle all the White House things herself, it was a recipe for disaster."
Eric D. Hargan, Health, Life Sciences & Medical Devices
Neil Kawashima was quoted on March 2 in The Chronicle of Philanthropy regarding President Obama's proposal to reduce the value of the charitable deduction for wealthy Americans. Mr. Kawashima commented that people who are considering types of giving that offer one-time, upfront charitable deductions on their federal taxes may especially be tempted to consider acting before the deduction rate falls. Although, Mr. Kawashima said that fund raisers may have a difficult time enticing donors to give more due to the bad economy, "Most people are feeling tapped out already," he said.
Neil T. Kawashima, Nonprofit Organizations, Private Client, Tax Exemption
Jon Dean was quoted on March 2 in The National Law Journal regarding the spike in employment litigation. In 2009, job layoffs and a sharp rise in unemployment rates will likely increase employment litigation. Mr. Dean is seeing a rise in the number of employment cases brought in tandem with False Claims Acts suits. "There seems to be an increasing number of whistleblower claims combined with employment litigation, particularly in health care," he said. He continued, "Medicare regulations are very complicated. As you have more people who know the inner workings of a company who are laid off in a soft economy, you will see more of them piecing together circumstances to support a whistleblower claim."
Jon Dean, Health Care Litigation, HR & Employment Litigation, Trial
Andrew Liazos was quoted on March 2 in The National Law Journal regarding public corporations seeking guidance from lawyers regarding the restructuring of executive bonuses, salaries and employee stock-option plans. Mr. Liazos commented, "Companies now feel compelled to more thoroughly justify and explain their compensation structure in proxy statements, much as they felt obliged to explain their stock-options backdating problems, or lack of problems, in SEC filings when that was a hot issue." He continued by noting that companies are also, "coming around to the view that clawbacks are not unreasonable." Mr. Liazos said, "Clawbacks date back to the Sarbanes-Oxley Act of 2002, but those provisions only applied to the chief executive officer or chief financial officer if he or she engaged in misconduct related to a financial statement."
Andrew C. Liazos, Employee Benefits & Pensions, Executive Compensation
Neil Kawashima was quoted on March 1 in The Wall Street Journal regarding nonprofit organizations criticism of the proposed limits to charitable deductions in President Barack Obama's budget plan. Critics argue that the decreased deduction rates will be an additional hindrance to nonprofits already struggling with a steep drop-off in donations. However, the change could cause an increase in donations before the new law takes effect. Mr. Kawashima said, "The only silver lining out of this is charities can try to argue that donors should prepay pledges now so that they can take advantage of the deduction sooner rather than later."
Neil T. Kawashima, Nonprofit Organizations, Private Client, Tax Exemption
Kari Larson, Gregory Lawrence and Brian McGill's article "EPA Releases Greenhouse Gas Proposal" appeared in the February 28 issue of The Lawyer's Brief.
Gregory K. Lawrence, Brian A. McGill, Energy and Derivatives Markets, Global Renewable Energy, Emissions and New Products
Art Rosen was quoted on February 28 by Sales & Use Tax Monitor regarding ethical guidelines in corporate tax. Many associations, such as the Institute for Professionals in Taxation/Atlanta, require ethics training each year. However, many tax practitioners are not required to followed any ethical guidelines. Mr. Rosen said, "Many times, people equate ethics with organizational requirements and whether what they will do would cause bad press for the company….I'm not saying that's wrong, but I look at it differently." He continued, "You shouldn’t think about getting away with something. You should do what's right, no matter the monetary amount of the issue. You should deal with the government the same way you deal with society."
Philip Tingle is quoted in a February 27 Forbes.com story about the economic stimulus package's new federal tax incentives to make "green" energy home improvements. Specifically citing the removal of the dollar caps on the 30 percent tax credit available for these improvements, Mr. Tingle says that, "If you're predisposed to going green, this is a benefit worth capturing."
Philip Tingle, Energy Tax, Tax
Michael Peregrine was quoted on February 26 in The Chronicle of Philanthropy regarding the criticism of Obama's plan to reduce charitable deductions for the wealthy. Mr. Peregrine said charities now face three factors that could cut into their deductions including, the bad economy, the proposed charitable-deduction limits and proposals by President Obama to end tax cuts for wealthy people that were introduced by President Bush. Mr. Peregrine is concerned that charities that are hurting for donations will be more susceptible to fund-raising scams. He said, "What is certain is that the perception that this will reduce charitable donations in the short term is going to draw out the fraudsters."
Michael W. Peregrine, Health, Nonprofit Organizations, Tax Exemption
Veronica Pinotti is mentioned in the 26 February 2009 edition of TopLegal for her work with De Matteis in the recent pasta cartel investigation.
Veronica Pinotti, EU Competition and Regulatory - Italy, Italy
Michael Peregrine was quoted on February 26 in The Chronicle of Philantrophy regarding the new Internal Revenue Service report on tax-exempt hospitals and executive compensation. Mr. Peregrine commented that, "charities need to take heed: Lawmakers and the American public today are questioning any institution that receives government assistance – whether it's bailout money or beneficial tax treatment." He continued, "They are saying, In this environment, with huge economic problems and deficits, tell me again why we are providing certain groups with tax exemptions….The IRS is saying, Everybody here play by the rules. And the broader charitable sector should say, All right, let me understand again what are those rules and double-check we are complying with them."
Michael W. Peregrine, Health, Nonprofit Compensation, Nonprofit Organizations, Tax Exemption
Lisa A. Linsky was mentioned on February 25 by Echelon Magazine regarding her appointment as McDermott Will & Emery's first partner-in-charge of firm-wide diversity. Ms. Linsky created and has chaired McDermott's innovative Lesbian, Gay, Bisexual and Transgender (LGBT) Diversity Committee since 2006, and will continue to do so. To view the entire article click here.
Jeffrey E. Stone was quoted on February 25 in The Chicago Daily Law Bulletin regarding the Chicago Bar Foundations (CBF) Investing in Justice Campaign. Mr. Stone, partner and head of McDermott's Trial Department, will chair CBF's 3rd Annual Investing in Justice Campaign this March. Mr. Stone asked, "If not us, who?" He continued, "Lawyers and the legal community in general probably have the greatest insight into the need for the provision of legal services."
Jeffrey E. Stone, Pro Bono & Community Service, Trial
Dennis White was mentioned on February 25 in The Deal/Daily Deal regarding his appointment as the Association for Corporate Growth's (ACG) 2009-2010 Board Chairman after serving as ACG Vice Chairman. Mr. White will assume the role as Board Chairman on July 1, 2009. Mr. White is a partner in the Firm's Corporate Department based in the Boston office. His appointment was also mentioned in Investment Business Weekly, Investment Business News, Business & Finance Week, Hedgeweek, Marketing Business Weekly, Real Estate & Investment Business, Real Estate & Investment Week and Mergers & Acquisitions Business.
Dennis J. White, Corporate, Corporate Responsibility and Governance
Abbe Lowell was quoted on February 25 by the Associated Press regarding a decision by the U.S. Court of Appeals for the 4th Circuit that allows former AIPAC lobbyists, Steven J. Rosen and Keith Weissman, to use evidence from two classified government documents at their trial. The unanimous decision is a setback in the government's prosecution of Rosen and Weissman. Mr. Lowell, Rosen's lawyer, noted that the materials Rosen and Weissman want to use at trial is crucial to their defense because it shows the information the defendants are accused of disclosing "was not classified, was not national defense information and its disclosure did not violate the law." Mr. Lowell was also quoted by The Washington Post, The Jewish Daily Forward, The Jerusalem Post and The Jewish Telegraphic Agency (JTA).
Abbe Lowell was quoted on February 23 by CNN.com in an article regarding 2001 disappearance of Chandra Levy. Mr. Lowell served as Representative Gary Condit's lawyer during the investigation. Washington police officials announced they are close to making an arrest in the killing of Chandra Levy. Mr. Lowell blamed police and media attention on Condit for delays in the arrest. He said, "It is a tragedy that the police and media obsession with former Congressman Condit delayed this result for eight years, and caused needless pain and harm to the families involved." Mr. Lowell was also quoted by The Los Angeles Times, The Hill, The Salt Lake City Tribune, The San Diego Union-Tribune, and Times-News.
Jeffrey E. Stone was mentioned on February 23 in The Chicago Tribune regarding the Chicago Bar Foundation's (CBF) Investing in Justice Campaign. Mr. Stone, partner and head of McDermott's Trial Department, will chair CBF's 3rd Annual Investing in Justice Campaign this March.
Jeffrey E. Stone, Pro Bono & Community Service, Trial
Gregory G. Mocek was quoted in the February 21 issue of The Chicago Tribune in an article regarding allegations of Ponzi schemes in the commodity markets. Mr. Mocek, former enforcement director of the Commodity Futures Trading Commission, noted that Ponzi schemes involving foreign currency trading have increased to the point that they could "eat up all of the commission's investigation and litigation resources, and there will be nothing left to protect the integrity of legitimate markets."
Gregory Mocek, Energy and Derivatives Markets
Abbe D. Lowell was quoted in the February 19 issue of Newsday in an article regarding former State Senate Majority Leader Joseph Bruno, who faces prosecution under the "honest-services fraud" federal statute. Bruno's lawyers, including Mr. Lowell, argue that the U.S. attorney is unjustly stretching a state ethics violation into a major felony fraud case. "It is scary. It puts into jeopardy a lot of public officials who work on the outside of their public service," he said.
Dennis White was mentioned on February 19 by the Business Wire regarding his appointment as the Association for Corporate Growth's (ACG) 2009-2010 Board Chairman after serving as ACG Vice Chairman. Mr. White will assume the role as Board Chairman on July 1, 2009. ACG is the premier professional organization focused on corporate growth, corporate development, and mergers and acquisitions. "I look forward to serving as the ACG Chairman," said Mr. White. "ACG is a thriving organization offering its members truly unparalleled value. I look forward to working with the Board of Directors and Gary [LaBranche, ACG President & CEO] to continue to create opportunities for ACG members around the world to network, share best practices, source deals and grow their businesses."
Dennis J. White, Corporate, Corporate Responsibility and Governance
Jeffrey E. Stone was quoted on February 18 in The Am Law Litigation Daily regarding the Chicago Bar Foundation's (CBF) Investing in Justice Campaign. Mr. Stone, partner and head of McDermott's Trial Department, will chair CBF's 3rd Annual Investing in Justice Campaign this March. Mr. Stone commented, "The need for legal aid is skyrocketing," he continued, "and the sources are increasingly stressed." To view the entire article click here.
Jeffrey E. Stone, Pro Bono & Community Service, Trial
Michael Peregrine was quoted on February 18 in the Chronicle of Philanthropy in an article regarding the recent report issued by the Internal Revenue Service regarding tax-exempt hospitals and executive compensation. Mr. Peregrine warned that charities need to take notice—lawmakers are paying particular attention to any institutions receiving government assistance. "They are saying, In this environment, with huge economic problems and deficits, tell me again why we are providing certain groups with tax exemptions," Mr. Peregrine said. "The IRS is saying, Everybody here play by the rules. And the broader charitable sector should say, All right, let me understand again what are those rules and double-check that we are complying with them," he added.
Michael W. Peregrine, Health, Nonprofit Compensation, Nonprofit Organizations, Tax Exemption
Michael Peregrine was quoted on February 16 in Modern Healthcare in an article regarding the Internal Revenue Service (IRS) report on nonprofit hospital executive pay and community benefits. The IRS found that executive pay at nonprofit hospitals is uneven compared to the community benefits provided by nonprofit hospitals. Mr. Peregrine noted that "the reports release amid public outcry over payouts to executives at failed corporations could put not-for-profit hospitals on the defensive." He added that the unfortunate timing may overshadow positive survey results that show hospitals largely comply with regulations, "The report makes it clear that hospitals have been playing by the rules," Mr. Peregrine noted. Mr. Peregrine provided similar comments regarding the IRS report to BNA's Health Care Reporter and EO Tax Today.
Michael W. Peregrine, Health, Nonprofit Compensation, Nonprofit Organizations, Tax Exemption
Michael Peregrine was quoted on February 13 in the Wall Street Journal in an article regarding a report issued by the Internal Revenue Service claiming that a small amount of nonprofit hospitals provide the most charity care and that the same nonprofit hospitals are overcompensating their top executives. "For the hospital sector, it's really unfortunate, the timing of this report, because this gets dropped into a real toxic environment," commented Mr. Peregrine. He continued, "You've got people really upset about government subsidies to organizations." Mr. Peregrine noted that many consider tax exemptions a form of subsidy.
Michael W. Peregrine, Health, Nonprofit Compensation, Nonprofit Organizations, Tax Controversy
Abbe D. Lowell was quoted in the February 11 issue of the Albany Times Union in an article regarding the trial of Senate Majority Leader Joseph L. Bruno, who has been indicted on allegations that he made millions of dollars through his senatorial position. Bruno's lawyers, including Mr. Lowell, noted that they would file pretrial motions challenging the indictment and a case built on federal theft of honest services statutes. "It's a controversial theory," said Mr. Lowell. He added that "we [Bruno's lawyers] will be filing motions that address three issues, (including) the impartiality for the grand jury, and the process by which the indictment occurred, more to do with whether this was a case brought in the press."
Abbe D. Lowell, Trial, White-Collar Criminal Defense
Stephen Bernstein was quoted in the February 10 issue of Health Law360 in an authored article discussing IMS Health Inc. v. Ayotte.
Stephen W. Bernstein, Health, Life Sciences & Medical Devices, Life Sciences - Health
Roger Strode was quoted in the February 9 issue of The Milwaukee Journal Sentinel in an article regarding physician-patient relationships once a physician departs from a health care system and cannot disclose to their patients where they will be practicing. "The rationale is that health care systems invest time and money in helping a doctor build his or her practice. In some cases, the health care system may have bought the practice for the potential revenue," Mr. Strode said.
Link to: Roger Strode, Health, Hospital and Health System Transactions
Roger D. Strode Jr., Health, Hospital and Health System Transactions
Den White was quoted on February 7, 2009 in Middle East and Africa Pharma and Healthcare Insights on an article regarding the resilience of the pharmaceutical sector in terms of M&A, with corporate activity continuing in spite of the global financial situation. "In healthcare and life sciences there are still some positive things happening. We have an ageing population and so favorable demographics continue to drive healthcare, and then on top of that we have the Obama administration, looking to roll out universal healthcare in the US," said Mr. White. "There continue to be breakthrough advances in medical devices that are impacting the delivery of medical care and impacting information technology in the healthcare industry," he added.
Dennis J. White, Corporate, Life Sciences - Corporate
Sarah Columbia was interviewed in the February 6 issue of Mass High Tech in an article regarding what questions entrepreneurs should ask their lawyers. Ms. Columbia noted that, "The first question I am typically asked by the smart entrepreneur is: 'How can you grow with us?' This is code for several different questions. Can you help us as we get started with limited resources (i.e. can you work with us to limit our expenses in the early days)? Can you grow with us as we move along our business plan?" She added that, "It is not easy to find a legal team that will work with you in the early days yet has the depth and expertise to grow with you as you realize your goals and objectives. But it is essential to find a legal team that has exactly this fit."
Sarah Chapin Columbia, Intellectual Property
Gregory G. Mocek was quoted on February 6 by Platts in an article regarding regulation of the futures market. Mr. Mocek noted that U.S. lawmakers should pass legislation that "works for Wall Street as well as Main Street." He warned, however, that too much regulation could push trading into unregulated markets offshore, and that he didn't "know if the CFTC has the resources to deal with anything other than what it has on its plate now." There are "dozens of bills pending, some more draconian than others," he added.
Gregory Mocek, Energy and Derivatives Markets
Marc E. Sorini was quoted in the February 5 issue of the Burlington Free Press in an article regarding proposed legislation that would clarify the tax and regulatory status of flavored malt beverages. The article quoted Mr. Sorini's submission to the Department of Liquor Control opposing any change in the current classification of such products.
Marc E. Sorini, Alcohol Regulatory & Distribution, Regulatory Development - Alcohol Regulatory & Distribution, Tax - Alcohol Regulatory & Distribution
Sarah Columbia was quoted in Law360's 2009 Litigation Almanac in an article regarding patent trends. Ms. Columbia noted that the Federal Circuit's decision in In Re Bilski could significantly impact both patent prosecution and litigation. "I think that it is first going to have an impact on patent prosecution, in terms of what patents are getting through the patent office, but then it will have an impact on patent litigation in terms of what kinds of claims patent holders are going to be able to assert," she said.
Sarah Chapin Columbia, Intellectual Property, IP Litigation, Patent Prosecution
Gregory G. Mocek was quoted in the February 4 issue of Financial Times in an article regarding proposed legislation that would limit speculation in the credit derivatives market by placing limits on futures trades and banning credit default swaps trading. Some brokers argue that the legislation would decrease market liquidity and discourage trading. "I realise that this is a 'Main Street' issue now, but Congress needs to be careful not to over-react," said Mr. Mocek.
Gregory Mocek, Energy and Derivatives Markets
Margaret H. Warner was quoted on February 4 by Law360 in an article regarding whether federal funding should be provided for national catastrophe funds. Ms. Warner noted that the idea of a fund draws from an age-old insurance concept. "Any insurance-related mechanism is about spreading the risk. By definition, there is always going to be some type of subset subsidizing some others. That is the very nature of spreading the risk," she said. She added that because catastrophes are unusual, they may require an unusual solution. "There certainly are many unique aspects of catastrophes, and absolutely the extent of the resources that are called upon in these situations make it important to do things outside the norm. We have to find a mechanism to handle these large catastrophe situations so that there can still be an incentive to do business in some of these prone locations," she said.
Margaret H. Warner, Insurance, Trial
George Heisler was quoted in the February issue of The Chicago Lawyer about how the work of legal aid organizations is vital to making pro bono programs possible for law firms. "They're out there picking and choosing the kinds of situations that merit our attention. They are our partners. Without them, we would not have a pro bono program," said Mr. Heisler. "We could put our sign out on the corner and say: 'Free legal services for the indigent,' but it wouldn't be the same thing," he added.
Quentin G. Heisler Jr., Pro Bono & Community Service
M. Miller Baker was quoted on March 3 in Law360 regarding the Arthur Anderson LLP et al. v. Wayne Carlisle et al., 08-146, in the U.S. Supreme Court. The appeal was brought by Arthur Anderson LLP and others on the issue of whether a litigant not party to an arbitration agreement can appeal a federal court decision refusing to stay the litigation pending arbitration. Mr. Baker, who represented Arthur Anderson in the appeal, "said the courts have long recognized that litigants who are not party to an arbitration agreement but are 'otherwise entitled to enforce the agreement' are able to seek and obtain stays under Section 3. Under that section, litigation must be stayed if the issue in suit is 'referable to arbitration under such an agreement.'"
M. Miller Baker, Appellate, Trial
Gregory G. Mocek was quoted on February 3 by Bloomberg in an article regarding speculation that the Commodity Futures Trading Commission may merge with the Securities and Exchange Commission. Mr. Mocek noted that the idea of a merger "probably has made some members in Congress nervous about losing their respective jurisdiction. America should know that merging the two regulators will not cure the underlying causes of the financial crisis."
Gregory Mocek, Energy and Derivatives Markets
Paul Devinsky was quoted on February 2 by Law360 in an article regarding an International Trade Commission (ITC) case brought by Saxon Innovations LLC, a suspected patent troll, against Nokia Corporation, Research in Motion Ltd. and several other companies. The ITC has not traditionally been a popular forum for nonpracticing entities because the commission can award only exclusion orders on the importation of infringing goods and not monetary damages. Mr. Devinsky noted that an exclusion order, however, is functionally equivalent to an injunction issued by a district court. "A respondent, facing an exclusion order, is likely to agree to a coercive settlement in order to avoid disruption in its business since it is unlikely to get a stay of an exclusion order pending its appeal to the Federal Circuit," he said.
Paul Devinsky, Intellectual Property, International Trade Commission
Yuichiro Takayanagi was mentioned in the February 2 issue of theOrange County Business Journal in an article regarding his move to McDermott. Mr. Takayanagi recently joined the Firm as a partner in the Intellectual Property, Media & Technology Department.
Yuichiro Takayanagi, European Telecom, Media & Technology, Intellectual Property
Eric Zimmerman was quoted in the February 2 issue of Modern Healthcare in an article regarding physician-owned hospitals being worried about the priorities of the Federation of American Hospitals and the SCHIP bill that was passed. "It is likely that the House will take up the Senate bill – making a conference not necessary – and send it to the president. With that said, if this provision is not included in what is sent to the president, it will re-emerge again. Those who object to physician ownership of hospitals have made it clear that this is a priority and one they want to purse until they achieve their objective," Mr. Zimmerman said.
Eric Zimmerman, Health, Health Ventures/Physician Transactions
Ankur Goel was quoted in the February 2 issue of Modern Healthcare in an article regarding Attorneys General authorities and their abilities to garner change and achievement. "If there's any connection, it's one of timing and the broad array of authorities attorneys general possess. In general, the intense political focus and concern about healthcare, as well as the increasing role of healthcare in the economy, are likely to be reflected in the level of government activity," Mr. Goel said.
Ankur J. Goel, Health, Health Care Litigation
Andrew Liazos was quoted in the February 2 edition of Law360 about how companies are starting to reflect on their compensation practices and prepare for increased public scrutiny. Mr. Liazos said public companies are also increasingly thinking about how compensation decisions will be perceived by their shareholders. "For companies that have had a difficult time, I think they're going to have to work hard to make the case that they have a real retention need, or that it makes sense to pay even though they didn't meet the pre-established performance goals," Mr. Liazos said.
Andrew C. Liazos, Employee Benefits & Pensions, Executive Compensation
Russell Hayman and Jon Dean were quoted in the February 1 issue of Corporate Counsel in their co-authored article regarding how employers should handle the departure of an employee with caution.
Jon Dean, Russell Hayman, Health, Trial
Gregory G. Mocek was quoted on January 30 by Reuters in an article regarding efforts to overhaul the Commodity Futures Trading Commission (CFTC). There has been some speculation that the CFTC will merge with the Securities Exchange Commission (SEC), but Mr. Mocek believes that a merger would create more problems if Congress does not first make changes to the regulatory environment. "There is a lot of talk out there that somehow by merging the two agencies that's going to cure the problem that resulted in the current financial turmoil. It would not have, and it won't in the future," he said.
Gregory Mocek, Energy and Derivatives Markets
Gregory G. Mocek was quoted in the January 30 issue of The Desk in an article regarding OPEC, which wants U.S. regulators to halt oil trading by hedge funds and speculators. "A cartel blaming speculators is like a bandit blaming a victim for striking back," said Mr. Mocek.
Stephen Bernstein was quoted in the January 30 issue of the Washington Legal Backgrounder in an authored article discussing IMS Health Inc. v. Ayotte.
Health, Life Sciences & Medical Devices, Life Sciences - Health
Abbe D. Lowell was quoted on January 30 by The Blog of Legal Times in an article regarding the indictment of Joe Bruno, former New York state senator, on charges of public corruption. Bruno is accused of mixing together his private business and public office in business deals. Mr. Lowell, one of Bruno's lawyers in the case, said that the charges represent "an unprecedented expansion of the 'honest services' theory that should trouble every part-time legislator because of its attempts to make criminal a person's need to have an outside job. After 40 years of great public service, Sen. Bruno deserves a lot better than he received from the prosecutors."
Stephen Bernstein was quoted in the January 29 issue of FDA Webview in an article regarding a New Hampshire law that violates the Firm Amendment because it prohibits the transfer of prescriber-identifiable information for use by drug companies field representations. "If the transfer of the information was the target of the conduct restraint, then, at a minimum, all the information transfers for all commercial uses would have been forbidden, instead of just those having to do with the ensuing commercial use in influencing physician behavior," Mr. Bernstein said.
Stephen W. Bernstein, Health, Life Sciences - FDA
Astrid R. Spain was quoted in the January 30 issue of Intellectual Property Watch in an article regarding the difficulties IP owners may face in 2009 as U.S. courts continue to cut back on patent rights. The Federal Circuit is expected to decide In Re Kubin, in which the USPTO rejected a patent application for rights to a DNA sequence on grounds that the invention was obvious to try. "If the [USPTO] decision is upheld, it would have far-reaching effects," said Ms. Spain. "If the Federal Circuit overturns Deuel [in which the Federal Circuit held that DNA sequences are not made obvious by knowledge of a desired protein sequence], that would call into question a lot of [biotech] patents that have been issued, especially recently issued patents," she added.
Astrid R. Spain, Intellectual Property, IP Litigation, Life Sciences & Medical Devices, Life Sciences - IP, Patent Prosecution
Gregory G. Mocek was quoted on January 28 by Bloomberg in an article regarding U.S. Commodity Futures Trading Commissioner Bart Chilton's request that Congress authorize the addition of 150 people to staff his agency. "It is simply pathetic that the CFTC does not have the funding to keep up with its mission. In recent times, the CFTC enforcement staff litigated as many cases as the Securities and Exchange Commission, with about 70 percent fewer people," said Mr. Mocek.
Gregory Mocek, Energy and Derivatives Markets
Read Moore was quoted in the January 27 issue of Chicago Daily Law Bulletin about how people are passing their businesses on to their children because the business is probably worth less in these economic conditions and the gift tax is based on the value of a business. "People figure if they're going to pay tax, they might as well pay it when it's lower. So we've seen a lot of that," said Mr. Moore. "If you don't own assets, creditors can't get them. Everybody thinks the party's over with low tax rates and all that. But it remains to be seen," Mr. Moore added.
M. Read Moore, Private Client, Trust & Estate Controversy
Gregory G. Mocek was quoted on January 27 by InvestEgate in an article regarding the Commodity Futures Trading Commission's (CFTC) investigation into manipulation of the silver futures market. Mr. Mocek noted that the commission initiates investigations only when it receives legitimate tips, and that the investigation is most likely not politically motivated "since you don't hear U.S. politicians crying about silver prices being too low." He added that the "CFTC will look to the source of the allegations and the conduct involved to determine whether a tip is in fact legitimate. If it is, then the government will pursue a matter and use government resources to investigate the facts. However, a tip and a subsequent open investigation do not indicate illegal conduct. It just means that the CFTC saw smoke."
Gregory Mocek, Energy and Derivatives Markets
Yuichiro Takayanagi was mentioned in the January 26 issue of Pharma Business Week in an article regarding his move to McDermott. Mr. Takayanagi recently joined the Firm as a partner in the Intellectual Property, Media & Technology Department.
Yuichiro Takayanagi, Insurance
Carol Harrington was quoted in the January 26 issue of the Private Asset Management about how families with $30 million in assets have been looking to set up their own private trust companies. Carol noted that a trust company can share resources and infrastructure with a pre-existing single or multi-family office and the family can also bundle both investment advisory fees and trustee fees to further reduce costs.
Carol A. Harrington, Private Client, Trust & Estate Controversy
Robin Greenhouse was quoted in the January 23 issue of the Daily Tax Reporter in an article about how the First Circuit on January 21 held that tax accrual workpapers are protected by the work product privilege even if the documents are required by financial reporting rules, but it remanded the case to the district court for a determination of whether Textron might have waived the privilege in its case through disclosure to its outside auditor. "If there had been some indication or reference to the taxpawyers tax accrual workpapers in the auditor's workpapers, the auditor would claim privilege," said Ms. Greenhouse. "That is exactly what happened in the Regions Financial [Corp. & Subsidiaries v. United States] case," she added.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the January 23 issue of The National Law Journal and on January 26 on Law.com's In-House Counsel on how Textron Inc. can withhold some documents related to tax shelters from the IRS. For taxpayers, the ruling by the 1st U.S. Circuit Court of Appeals in U.S. v. Textron, No. 07-2631, is a "significant victory," said Ms. Greenhouse.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the January 22 issue of Tax Notes in an article about how the First Circuit on January 21 held that tax accrual workpapers are protected by the work product privilege even if the documents are required by financial reporting rules, but it remanded the case to the district court for a determination of whether Textron might have waived the privilege in its case through disclosure to its outside auditor. "While the auditor's workpapers may generally be subject to disclosure, to the extent they contain or reflect Textron's work product, the auditor would likely redact that privileged material and claim work product," said Ms. Greenhouse.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the January 22 issue of Bloomberg on how Textron Inc. can withhold some documents related to tax shelters from the IRS. "It's a big decision," Ms. Greenhouse said. "It doesn't end the case," she added.
Robin L. Greenhouse, Tax, Tax Controversy
Nancy G. Ross was quoted on January 21 by Law360 in an article regarding the number of ERISA lawsuits in 2008, which leveled off after steadily declining since 2004. Many lawyers suspect that the decline in filings over the years may be due to plan administrators' good management. "They are paying more attention to administrative appeals, reconsidering denials, and I think that may be one area where there has been a decline," said Ms. Ross. Ms. Ross noted, however, that as plans allow participants more control over investment choices, the number of ERISA suits will increase as stock values drop. "If people are given a lot more options, you will have some people who want to blame someone for poor returns," she said.
Nancy G. Ross, Employee Benefits Litigation, Trial
Blake Rubin was quoted in the January 21 issue of Tax Notes in an article about how practitioners were pleasantly surprised to find that Treasury on January 16 withdrew the highly criticized proposed regs on the treatment of disguised sales of partnership interests between partners under section 707(a)(2)(B). "The regulations were deeply flawed and possibly invalid. The Service did the right thing in withdrawing them," Mr. Rubin said. "I was a little surprised that they were withdrawn. The official word was that they would be re-proposed. Candidly, I thought that they would just linger in their proposed form indefinitely," he added.
Blake D. Rubin, Pass-Throughs, Tax
Jeffrey F. Webb was quoted on January 20 by Law360 in an article regarding the rise in Americans with Disabilities Act (ADA) cases filed in the U.S. courts over the past several years. Some lawyers attribute the increase to anticipation of the ADA Amendments Act, legislation that will overturn several Supreme Court rulings that narrowed the class of people considered disabled by the law. "Even if the changes weren't more pro-employee, the fact that they are including new language in the statute encourages lawyers to litigate and get the court to interpret the new language," said Mr. Webb.
Jeffrey F. Webb, HR & Employment Litigation, Trial
Lazar P. Raynal was interviewed on January 19 by Chicago Lawyer. Mr. Raynal noted that the biggest legal news right now relates to the fallout from the financial crisis. "[The crisis] is exposing significant companies to bankruptcy and default issues, as well as suits for negligence and lack of due diligence. McDermott is particularly busy assisting companies with these thorny issues," he said. When asked what he finds most interesting about his practice, he noted, "My practice allows me to learn new things about businesses and industries. I take the new things I've learned, then figure out how to use that information to win for my clients."
Todd Solomon was quoted in the January 16 issue of CCH Tax Journal in an article about how the IRS has provided guidance with regard to allocating the new first-time homebuyer credit between unmarried co-purchasers of a principal residence pursuant to Code Sec. 36(b)(1)C). Mr. Solomon told CCH, "By offering a valuable tax credit to taxpayers who are not married, Notice 2009-12 provides an important federal tax benefit for unmarried domestic partners. As domestic partnerships are not recognized under federal law, a benefit of this sort is rare."
Todd A. Solomon, Employee Benefits & Pensions, Welfare Benefit Plans
Paul J. Pantano was mentioned on January 16 by Law360 in an article regarding the publication's creation of a 2009 energy editorial advisory board. Mr. Pantano is a member of the board.
Paul J. Pantano Jr., Energy and Derivatives Markets
Art Rosen was quoted in the January 15 issue of Sales & Use Tax Monitor about the potentially higher taxes in New York on items such as non-diet soft drinks. As for Gov. David A. Paterson's request to tax digital downloads of media such as books and music, "we went through this with Streamlined over the past four years," said Mr. Rosen. "The business community was able to convince the SSTP powers-that-be that each digital product needed to be examined individually. We hope to do the same in New York," he added.
Arthur R. Rosen, State & Local Tax, Tax
Steven S. Scholes was quoted on January 14 by Law360 in an article regarding the decreasing number of securities litigation cases filed over the past few years. Mr. Scholes noted that the 1998 Securities Litigation Uniform Standards Act (SLUSA) pushed securities class actions into federal courts, thereby eliminating many follow-on state court securities claims. "That phenomenon has made the process much more efficient," said Mr. Scholes. He noted, however, that the number of cases filed will likely increase due to the financial crisis. "I think that it's increasing and will continue to increase. And frankly, I don't think there's much doubt about that," he said.
Steven S. Scholes, Securities Litigation, Trial
Eric Gordon was quoted in the January 13 issue of Modern Healthcare in an article regarding the HHS's inspector general's office moving forward with a rural multiple-ownership deal. "The OIG is saying here that you need to be foursquare within the group practice definition—or very close to it—for us to bless this type of arrangement. They're saying 'We mean it, to be protected you need to qualify as a group practice,'" Mr. Gordon said.
Eric B. Gordon M.D., Health, Reimbursement/Fraud & Abuse
Todd Solomon was quoted in the January 9 issue of CCH Tax Journal about the fact that the non-spouse beneficiary rollover provisions were made mandatory in technical corrections that were made to the Pension Protection Act. The Worker, Retiree and Employer Recovery Act also makes another very significant change related to plans and plan beneficiaries, Mr. Solomon told CCH. "The new law makes the nonspouse rollover provision mandatory," he said. "This is a key benefit and provides an important tax deferral opportunity for domestic partners as well as other nonspouse beneficiaries," Mr. Solomon explained. "Although many employers have been allowing nonspouse beneficiary rollovers beginning in 2007, many had not focused on this change given all of the other plan administration changes that resulted from the Pension Protection Act," he concluded.
Todd A. Solomon, Employee Benefits & Pensions, Welfare Benefit Plans
Eric Zimmerman was quoted in the January 9 issue of BNA’s Medicare Report in an article regarding Medicare legislation in 2009. "Congress will consider comprehensive Medicare legislation, including significant program payment reforms in 2009. There is enormous pent-up demand to address several systemic problems, including the physician payment update," Mr. Zimmerman said.
Blake Rubin was quoted in the January 8 issue of Tax Notes in an article about how section 1001 lacks a definition of recourse or nonrecourse debt, so such a classification can be based on state law, according to practitioners at a January 7 District of Columbia Bar luncheon on classification of partnership liabilities. "That was the thinking that we had all signed onto until we read this case," said Mr. Rubin, referring to Great Plains Gasification Associates et al. v. Commissioner, T.C. Memo. 2006-276, No. 10578-01 (Dec. 27, 2006).
Blake D. Rubin, State & Local Tax, Tax
Jeffrey E. Stone was quoted in the January 5 issue of Inside Counsel regarding in-house counsel's role in detecting and preventing corruption within their organizations. He noted that the penalties are harsh for corporate individuals found guilty of corruption. "It could be jail time for individuals—massive fines and even debarment for the company. If you're a health care company and you lose your Medicare provider number, it's pretty tough to exist," he said. "Experienced lawyers know that the way to take the sting out of an