ALM Research (News) http://www.alacrastore.com/publisher-rss/alm-research Wednesday, July 23, 2008 9:50:53 PM 296 en AlacraStore RSS Builder 1.0 30 Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745243almnews/745243ALBANY ? A judge is calling on the Legislature to correct what he referred to as a loophole in state law that allows sex offenders to avoid a felony charge for sexually abusing mentally disabled young people.Sullivan County Judge Frank J. LaBuda wrote that he had no choice but to dismiss a first-degree sexual abuse conviction against defendant Daniel MacLean because the requisite showing that Mr. MacLean acted with forcible compulsion was not made.Dismissal of...in response to Mr. MacLean#;s Criminal Procedure Law ?### motion to vacate the jury verdict on the first-degree sexual abuse charge.Mr. MacLean, a former official with the Liberty Little League in Sullivan County, was accused of abusing his then-##-year-old girl in June #### in Liberty...in Sullivan County, was accused of abusing his then-##-year-old girl in June #### in Liberty. The girl was described by Judge LaBuda as four-feet tall, weighing ## pounds and being so severely disabled with cerebral palsy that she had the mental capacity of a second- or third-grader.First-degree sexual abuse, Penal Law ?###.##, prohibits sexual contact with a person by forcible compulsion, or if the victim is "physically helpless" or under age ##. Sullivan County prosecutors argued that forcible compulsion lies not only...in the disparity in size between Mr. MacLean and his victim.Judge LaBuda ruled that the testimony was simply insufficient to demonstrate forcible compulsion."Not a scintilla of evidence was presented at trial showing that defendant used physical force or a threat which placed the victim, or another person, in fear of immediate death or physical injury," the judge wrote. "Indeed, the victim was never questionedNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745242almnews/745242Milberg Firm Defends Pay Deal With WeissSecurities class action law firm Milberg yesterday defended at a court hearing a pay deal with co-founder Melvyn I. Weiss, who was sentenced last month to ## months in prison for orchestrating a scheme to pay kickbacks to individual plaintiffs in shareholder suits. The October #### agreement to pay Mr. Weiss ## percent of fees on matters being...shareholder suits. The October #### agreement to pay Mr. Weiss ## percent of fees on matters being handled by the firm was sharply criticized in a Wall Street Journal editorial Monday as a sweetheart deal that would pay the convicted felon far more than the roughly $## million he disgorged or was fined. But following a brief hearing on the agreement yesterday, Milberg partner Matthew Gluck took issue with the editorial, saying the deal had proceeded with the government#;s full...Gluck took issue with the editorial, saying the deal had proceeded with the government#;s full knowledge and contained no litigation release that might forestall a potential effort by Milberg to collect from Mr. Weiss some of the $## million the firm itself agreed to pay last month in exchange for...in exchange for dropping criminal charges against it. The deal was struck shortly after Mr. Weiss was indicted last fall and marked his stepping down as managing partner of the firm. As an active senior partner, Mr. Weiss would likely have received closer to ## percent of fees, said Mr. Gluck. Represented by Leslie D. Corwin ofNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745240almnews/745240New York state#;s highest court has been asked to resolve uncertainty over a law that penalizes attorneys who deceive state courts.The U.S. Court of Appeals for the Second Circuit, in an opinion by Judge Robert Sack...of Appeals for the Second Circuit, in an opinion by Judge Robert Sack, yesterday certified two questions to the New York Court of Appeals in a case involving attorney Armand Rosenberg and his representation of a man who allegedly stripped his family#;s business of millions of dollars.The subject is Judiciary Law ?###, which in part forbids an attorney from...in part forbids an attorney from engaging in deceit or collusion with the intent to deceive the court or any party.In addition to being a misdemeanor, violation of ?### also calls for a civil remedy, in which an attorney can be ordered to forfeit to the injured party treble damages.Mr. Rosenberg was taken to court for attempted...and ## of their ## restaurants by diverting millions of dollars from the business and forging signatures of family members.The money allegedly went into a "palatial" apartment on Central Park West and was used to cover his losses in options trading.Mr. Rosenberg helped dissuade the brothers from seeking criminalNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745235almnews/745235By Norbert Ehrenfreund, Palgrave Macmillan, New York, N.Y. ### pages, $##.##In February, the Bush administration launched a campaign aimed at drumming up support for its controversial plan to try certain detainees held at Guantanamo Bay before special military commissions. In order to...administration invoked the legacy of the Nuremberg trials of leading Nazi war criminals that followed World War II.According to The Economist (Feb. ##), in a memo circulated to U.S. embassies, the State Department urged the diplomatic corps to issue public statements favorably comparing the military commissions to Nuremberg. The...embassies, the State Department urged the diplomatic corps to issue public statements favorably comparing the military commissions to Nuremberg. The comparison is not entirely new; as reported in The Nation (Feb. ##), in August ####, then-Pentagon general counsel William Haynes asserted that the military commissions "will be the Nuremberg of...War Crimes Trials Changed the Course of History," is an excellent place to start.Ehrenfreund is well-placed to deliver an informed analysis of Nuremberg. A Jewish-American whose maternal grandfather was a victim of the Holocaust, Ehrenfreund fought his way through Germany as a forward observer attached to General George Patton#;s Third Army, covered Nuremberg as a journalist for the Stars and Stripes, and ultimately returned to the United States to embark on a distinguished legal career that included ## years of service as a judge on the Superior Court of California. Ehrenfreund successfully weaves personal anecdote, historical record, and legal analysis into his account of the trials and theirNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745234almnews/745234Lawyers#; AssociationAll events held at ## Vesey St. Call ###-###-#### or visit www.nycla.org.? CLE: Bankruptcy Court: Electronic Case Filing System, ## a.m.-##:## p.m.? CLE Video Replay Marathon: Civil Trial Practice Institute ####, first of a two-day video replay, #:##-# p.m. Practising Law InstituteAdvanced Seminar on Trademark Law ####, # a.m.-##:## p.m., PLI Center ### Seventh Ave. Call ###-###-#PLI or visit www.pli.edu. Tomorrow Nassau Academy of LawCLE: Introduction...p.m., PLI Center ### Seventh Ave. Call ###-###-#PLI or visit www.pli.edu. Tomorrow Nassau Academy of LawCLE: Introduction to Elder Law: A beginning to intermediate program that will cover basic planning and document drafting, #:## a.m.-#:## p.m., ##th & West streets, Mineola. Call ###-###-#### or visitHYPERLINK "http://www.nassaubar.org"www.nassaubar.org. New York County...York County Lawyers#; AssociationAll events held at ## Vesey St. Call ###-###-#### or visit www.nycla.org.?CLE: Bloomberg Professional introductory class, ## a.m.-##:## p.m.?CLE: Video Replay Marathon: Civil Trial Practice Institute ####, second of a two-day video replay, #:##-# p.m. New York State Association Of Criminal Defense LawyersCLE: DOCS Fought the Law and the Law Won...Brooklyn. Call ###-###-#### or visit www.nysacdl.org. Practising Law InstituteDoing Business in China: Resolving the Challenges in Today#;s Environment ####, # a.m.-#:## p.m. PLI Center ### Seventh Ave. Call ###-###-#PLI or visit www.pli.edu.NewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745232almnews/745232War Crimes Trials Changed the Course of History#; by Norbert Ehrenfreund ? # International Banking : The Committee on Foreign Investment in the United States, by Kathleen A. Scott ? # Outside Counsel: Great Success! #;Borat#;s#; Release Agreement Averts Liability, by Kent Raygor and Bardia Bakhtari ? #Real Estate Trends ? # Financing: Pre-WorkoutNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745231almnews/745231and Staten Island are citing the ruling in challenges to New York state#;s gun-licensing laws.Other challenges are expected, said Richard D. Willstatter, a vice president of the New York State Association of Criminal Defense Lawyers. In fact, Mr. Willstatter said he intends to question the law on behalf...president of the New York State Association of Criminal Defense Lawyers. In fact, Mr. Willstatter said he intends to question the law on behalf of a retired police officer who has been charged with having an unlicensed gun in his home.In the Staten Island case, Felix Harris moved four days...after the high court issued its ruling, Heller v. District of Columbia, ### S.Ct. ####, to withdraw his guilty plea to attempted possession of a firearm with a promise that he would be sentenced to no more than two years in prison.The motion is a "very simple" one, said Mr. Harris#; attorney, James J. Hasson, because it is "on all fours" with Heller.Nine of the ## counts in the...Mr. Harris accuse him of possessing firearms or ammunition in his apartment, Mr. Hasson said. The Heller ruling took "the criminality out of possession of a gun within one#;s house," he added.Staten Island District Attorney Daniel M. Donovan Jr. declined to comment on any pending case but said theNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745229almnews/745229WEST Harlem business owners opposed to Columbia University#;s highly controversial ##-acre expansion plan into Manhattanville will gain access to documents that a government agency maintained were exempt from public disclosure laws.In a #-# decision, the Appellate Division, First Department, has held that the agency exemption to the Freedom of Information Law did not apply to communications...the FOIL exemptions are designed to protect."The dispute over the scope of the agency exemption arose in connection with Columbia#;s plan to develop a campus in Manhattanville, a manufacturing area of West Harlem. The proposal, which has provoked significant opposition from individuals and community groups who contend they would be displaced by the...West Harlem. The proposal, which has provoked significant opposition from individuals and community groups who contend they would be displaced by the plan, includes building a seven-story deep structure, referred to in the decision as a "bathtub," that would lie underneath the new campus.The completion of the project depends on the cooperation of the Empire State Development Corporation, which must...####, Columbia hired Alee, King, Rosen and Fleming to prepare an environmental impact statement and help it secure approvals from agencies, including the development corporation.A month later, Columbia contracted to cover the development corporation#;s expenses in connection with the expansion plan. As part of the agreement, the university paid the agency to retain Alee King as a subconsultant to undertake a blight study.In ####, the West Harlem Business Group and one of its members, Tuck-It-Away Associates, made separate FOIL requests seeking documents fromNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745220almnews/745220its inception in ####. Founding partner Alan Russo said the deliberately short move will keep his firm#;s ## attorneys and ## staff members in a close proximity to Brooklyn as well as to state and federal courthouses."Our lease was expiring and we would have had to stay on two floors," Mr. Russo said. "Compared to our...and we would have had to stay on two floors," Mr. Russo said. "Compared to our current building, [## Whitehall St.] is more modern, with a nice lobby." Peter Figdor, a partner at Salans, represented the tenant. Richard Berney of Cozen O#;Connor represented the landlord, Broad Financial Center LLC.The move marks an expansion of...the landlord, Broad Financial Center LLC.The move marks an expansion of at least #,### square feet, and Mr. Russo said consolidating floors was a top priority when selecting new space."We#;re trying to build in for future growth and consolidate on one floor," he said. "We should be...constructed in #### and contains ###,### square feet over ## floors.Managing director Scott Cahaly and associate Daniel Suozzi of the Staubach Company acted as the tenant#;s broker.The landlord retained CB Richard Ellis#; Edward Goldman, executive vice president, and Julian Cope, first vice president, as its brokers."Broad Financial wanted to diversify its tenant base by adding a strong law firm to the roster, as the building predominantly houses financial and technology firms," Mr. Cope said.Mr. Russo said the landlord is contributing toward the gut renovation of his newNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745191almnews/745191In November ####, British comedian Sacha Baron Cohen released a film based on his popular television character, Borat Sagdiyev, entitled "Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan" (Twentieth Century Fox...television character, Borat Sagdiyev, entitled "Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan" (Twentieth Century Fox, ####).In the film, Borat, a fictional journalist from Kazakhstan, travels across America to learn more about American culture, interacting along the way with numerous individuals who are unaware that Borat...journalist from Kazakhstan, travels across America to learn more about American culture, interacting along the way with numerous individuals who are unaware that Borat is a fictional character and that much of what Mr. Cohen says and does is loosely scripted. Instead, the filmmakers informed these people that they were being...and that much of what Mr. Cohen says and does is loosely scripted. Instead, the filmmakers informed these people that they were being filmed for a documentary on American culture to be shown in Kazakhstan or Belarus. Several of the people Borat meets with share opinions with the purported journalist thatNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745190almnews/745190Client of the Same Brokerage Firm Had Bid on the Same Property ? Court Cites Realities of Marketplace and Buyer#;s Reasonable ExpectationsThe plaintiff had contacted a Century ## brokerage firm that was owned by "A" and "B" (brokerage firm) and spoke with an associate broker ("C") about a property that was listed for sale at $###,### by another Century ## franchise. The plaintiff thereafter authorized "C" to submit an offer for $##...of such offers, there had been no counter-offers by the sellers. The plaintiff asked "C" if he thought that the $##,### offer was "a fair offer" and "C" indicated that it was. The plaintiff claimed that he told "C" that he was "willing to go up to the asking...told "C" that he was "willing to go up to the asking price."The plaintiff signed an acknowledgement that he had "received, read and understood," a Disclosure Regarding Real Estate Agency Relationship which conformed with Real Property Law (RPL) Art. ##A. The disclosure provided, inter alia:buyer#;s agent acts solely...on behalf of the buyer" and has "without limitation, the following fiduciary duties to the buyer: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and a duty to account.A few days before the plaintiff had spoken to "C," two other buyers, "D" had contacted "B," the co-owner of the brokerage firm. When "BNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745189almnews/745189called Exon-Florio Provision (Exon-Florio), the president of the United States has the authority to suspend or prohibit the acquisition, merger or takeover of a U.S. "person engaged in interstate commerce" by a non-U.S. ("foreign") person that might threaten the national security of the United States if he or she finds that there is credible evidence...S. companies also potentially are subject to review under Exon-Florio.This month#;s column will discuss recent legislation and proposed regulations that could affect a potential investment in the United States by a non-U.S. bank. CFIUSThe Committee on Foreign Investment in the United States (the CFIUS), originally established by executive order in ####, is an interagency...States (the CFIUS), originally established by executive order in ####, is an interagency committee that reviews either potential or completed acquisitions, mergers or takeovers of a U.S. person engaged in interstate commerce by a foreign person. Regulations may be found in Part ### of Title ## of the Code of Federal Regulations. The U.S Treasury Department#;s Web...Regulations may be found in Part ### of Title ## of the Code of Federal Regulations. The U.S Treasury Department#;s Web site contains a Web page devoted to CFIUS matters at http://www.treas.gov/offices/international-affairs/cfius/. FINSAExon-Florio was amended in #### by the Foreign InvestmentNewsALM Research (News)Jul 16, 2008http://www.alacrastore.com/storecontent/almnews/745188almnews/745188Representation of a lender during the workout of a troubled commercial real estate loan requires an attorney to protect the client from unanticipated consequences and material miscalculations. In addition to negotiating and documenting the...the prospective workout agreement, an attorney must preserve the client#;s rights and remedies during business-level negotiations to protect against prejudice in the event a final agreement cannot be reached. By entering into a timely and properly drafted "pre-workout agreement," a lender may insure that any and all discussions or draft agreements exchanged between the parties are neither enforceable prior to final execution of a settlement agreement (be it a forbearance agreement or an amendment to the loan documents) nor admissible in any court proceeding. Lender#;s counsel should effectively safeguard the client#;s existing...should effectively safeguard the client#;s existing rights and remedies under the loan documents by advising the lending client to refrain from workout negotiations with a borrower until a pre-workout agreement is executed.While the operative provisions of pre-workout agreements vary, prudent drafting will include certain key clauses that New York courts...drafting will include certain key clauses that New York courts consistently find dispositive of the parties#; intent not to be bound prior to execution of a written settlement or workout agreement. Initially, the pre-workout agreement should confirm the borrower#;s indebtedness (and, ideally, any guarantor#;s obligations) to the lenderNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745147almnews/745147events held at ## W. ##th St. Call ###-###-#### or visit www.nycbar.org.? In-House Women Lawyers Networking Event, #:##-## a.m. Contact Ayala Deutsch at adeutsch@nba.com.? CLE: Securities Litigation: Stoneridge, Tellabs ? Recent Developments and Decisions, #-# p.m. New York County Lawyers...New York County Lawyers#; AssociationAll events held at ## Vesey St. Call ###-###-#### or visit www.nycla.org.?CLE Westlaw: Intermediate, ##-## a.m.?CLE Westlaw: Litigation Research, ##:## a.m.-##:## p.m.?Committee Meeting: Law and Literature ("The Book of Daniel" by E.L. Doctorow), # p.m. Practising Law InstituteNinth Annual...The Book of Daniel" by E.L. Doctorow), # p.m. Practising Law InstituteNinth Annual Private Equity Forum ####, second of two-day event, # a.m.-## p.m. PLI Center, ### Seventh Ave. Call ###-###-#PLI or visit www.pli.edu. Tomorrow Federal Bar Association Eastern District of...CountyLawyers#; AssociationAll events held at ## Vesey St. Call ###-###-#### or visit www.nycla.org.? CLE: Bankruptcy Court: Electronic Case Filing System, ## a.m.-##:## p.m.? CLE Video Replay Marathon: Civil Trial Practice Institute ####, first of two-day video replay, #:##-# p.mNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745144almnews/745144Union an electronic database containing records of more than ###,### civilian stops. In May, Acting Supreme Court Justice Marylin G. Diamond of Manhattan rejected a claim that release of the information would jeopardize the safety of officers, and directed the NYPD to make public a redacted version of the database. Her order came in the wake of a two-year battle by the group to gain access to the database, which it claims will shed light on alleged racial profiling tactics by the...to gain access to the database, which it claims will shed light on alleged racial profiling tactics by the department. While the RAND corporation issued a study on the data last year, Christopher Dunn, associate legal director of the NYCLU, characterized the report as "deeply flawed" in terms of both substance and process (NYLJ, June #). In its notice of appeal filed earlier this month to the Appellate Division...Over Theft ChargesA disbarred Hewlett attorney pleaded guilty yesterday in Nassau County Court to stealing more than $###,### from clients. Joseph C. Levine had a plea deal revoked in February after one of his victims implored County Court Judge John Kase to "not allow Mr. Levine to con you the...of his victims implored County Court Judge John Kase to "not allow Mr. Levine to con you the way he conned me" and give him a longer sentence than one-to-three years behind bars. Judge Kase offered Mr. Levine the option of either taking a new deal of three to nine years or withdrawing his guilty plea and going to trial (NYLJ, Feb. ##). In March, Mr. Levine opted toNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745143almnews/745143TIFFANY and Co. cannot blame eBay for the proliferation of counterfeit jewelry hawked on the online auction site, a federal judge ruled yesterday.Southern District Judge Richard Sullivan, following a bench trial, rejected several claims by the New York-based jeweler and dealer in luxury goods, most importantly a claim that eBay was guilty of contributory trademark infringement because of its failure to aggressively pursue counterfeiter sellers.In Tiffany (NJ) Inc. v. eBay, Inc...that the use of Tiffany trademarks by eBay in its advertising, on its home page and in sponsored links purchased through Yahoo! and Google is a "protected, nominative fair use of the marks."On the more difficult question of contributory trademark infringement, the judge said the standard was not whether eBay...of this standard is that Tiffany must ultimately bear the burden of protecting its trademark," said Judge Sullivan. "Policymakers may yet decide that the law as it stands is inadequate to protect rights of owners in light of the increasing scope of Internet commerce and the concomitant rise in potential trademark...and rejected his proposal to ban sellers of five or more Tiffany items.But Judge Sullivan said he was unpersuaded by Tiffany#;s allegation that "a seller listing five or more pieces of Tiffany jewelry is presumptively trafficking in counterfeit goods."Judge Sullivan said the Inwood case "can and has beenNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745142almnews/745142A DEFENDANT facing the death penalty for shooting and dismembering two fellow drug dealers may assert self defense at his upcoming murder trial, a federal judge in Brooklyn has ruled.In a decision yesterday, Eastern District Judge Jack B. Weinstein held that the evidence supporting Humberto Pepin Taveras#; claim that he believed he was in danger may...claim that he believed he was in danger may be flimsy, but the irreversibility of the potential penalty requires flexibility in the law."Were this a litigation where defendant#;s life was not at stake, the probable evidence of self defense might be deemed insufficient to warrant a jury charge on the subject," Judge Weinstein wrote in USA v. Taveras, ##-CR-###. "One of the collateral aspects of capital punishment is, however...###. "One of the collateral aspects of capital punishment is, however, application of the rules of relevancy and other evidentiary principles to maximize protections ? imperfect as they may be ? against inappropriate executions by the state."The impending death penalty trial of Mr. Pepin has already demanded much attention from both the...to two long-cold murders, the #### and #### shootings of Jose Rosario and Carlos Madrid. According to prosecutors, Mr. Pepin admitted to both killings, as well as to using his skills as a trained butcher to carve up and dispose of the bodies.An appeal addressing a half-dozen separate issues was decided earlier this year by the U.S. Court of Appeals for the Second Circuit (NYLJ, Feb. #). The appellateNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745141almnews/745141of other agencies or back in the community, an upstate appeals court has ruled.In other decisions last week, the Appellate Division, Third Department, reversed a jury#;s determination that a sex offender did not require continuing in-patient treatment at a facility for the developmentally disabled, and threw out a prison sentence imposed by a judge on a defendant who had agreed to probation under a plea agreement for driving while intoxicated.In the civil confinement case, People ex rel. David NN. v. Hogan, ######, the court said the state#;s...prison system and the Office of Mental Health. While agencies have ### days to notify the attorney general#;s office of the impending release of a sex offender, the civil confinement law sets no penalties for the failure to do so.In addition, the mental health agency review teams that examine...or remedies if the time frames are not met, the court noted.The sex offender in the case before the court last week, identified only as David NN., had sought a writ of habeas corpus, contending that the Office of Mental Health did not have the authority to pursue a civil confinement declaration against him because he was not in the office#;s custody when the petition was filed.He had been held in a secure Office of Mental Health facility in St. Lawrence County under a voluntary Correction Law ?### commitment. When his commitment expired on Oct. #, ####, a civil confinement evaluation had not been completed and no recommendation made about pursuing a confinement proceeding against him.The agency refused to release him, although the Third Department panel noted last week that the agency had "no legal authority...to the Division of Parole.The next day, however, Supreme Court Justice Robert C. Mulvey, sitting in Chemung County, where David NN. had found a residence, ordered him back into custody in another Office of Mental Health facility as the attorney general and the agency asked for a probable cause hearing under the civil confinement process.David NN. contended that the agency had no jurisdiction over him because he was in the custodyNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745138almnews/745138THE STATE owes damages to a jailed man who became "essentially lost" in the criminal justice system after not being given preliminary or final hearings for allegedly violating parole, a Court of Claims judge has determined.In a separate case involving an improper confinement claim, another Court of Claims judge recently decided that judicial immunity shielded an Albany judge and his staff from...claim, another Court of Claims judge recently decided that judicial immunity shielded an Albany judge and his staff from liability for allegedly failing to inform a defendant or his attorney about the defendant#;s required appearance at a hearing. The defendant spent a night in jail on a bench warrant issued by the judge when the man failed to appear in court.In the parolee case, Arnold Joseph Hardy contends he was illegally...not the longer time frame urged by Mr. Hardy.Ruling from White Plains in Harding v. State of New York, ######, Judge Scuccimarra ordered that a trial be held expeditiously to set damages.Mr. Hardy, who used the alias Joseph Harding, served about one year in prison starting in #### for...####. That period was extended to February #### due to Mr. Hardy#;s parole violations, including testing positive for illegal drugs and failing to keep a steady job, although Mr. Hardy contended he was never informed about the extension of supervision.An arrest warrant for Mr. Hardy was issued in SeptemberNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745137almnews/745137no matter where the lender is in the foreclosure process. The lender and referee should verify that the bankruptcy petition was filed by obtaining either a file stamped copy of the petition or a copy of the electronic filing receipt for the petition. An electronic search of the bankruptcy court#;s docket can also be performed. If there is...electronic filing receipt for the petition. An electronic search of the bankruptcy court#;s docket can also be performed. If there is any doubt whatsoever as to the existence of the filing, the foreclosure process should not proceed because, if the homeowner in fact filed for bankruptcy, the post-petition foreclosure...homeowner in fact filed for bankruptcy, the post-petition foreclosure proceedings will be void and the lender and referee exposed to the imposition of damages.A recent decision of the Bankruptcy Court in the Southern District of New York highlights the perils for a referee and lender that go forward with a foreclosure sale in the face of unverified information that the homeowner filed for bankruptcy. See In re Judith Anne Crawford, #### Bankr. LEXIS #### (June...unverified information that the homeowner filed for bankruptcy. See In re Judith Anne Crawford, #### Bankr. LEXIS #### (June #, ####) (appeal filed).In Crawford, a referee was informed of a bankruptcy filing the day before the foreclosure sale. Uncertain as to whether the bankruptcy filing would stay the sale (the referee was not familiar with the bankruptcy process and believed a court order might be needed to stay the sale), the referee proceeded with the foreclosure sale. The referee chose to find out later whether thereNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745136almnews/745136BETWEEN ### and ### tax certiorari cases could be back on the docket in Nassau County, practitioners estimate, after a ruling by a Long Island judge resurrecting the proceedings in a matter that was "one of the thousands" marked off the calendar between #### and ####.In Transtechnology Corp. v. The Assessor of the County of...marked off the calendar between #### and ####.In Transtechnology Corp. v. The Assessor of the County of Nassau, ######/##, Supreme Court Justice Stephen A. Bucaria of Nassau County dismissed claims by the county that "fiscal chaos" would ensue if the case from the ####-## tax year were returned...claims by the county that "fiscal chaos" would ensue if the case from the ####-## tax year were returned to the trial calendar.In a #### attempt to relieve a logjam of tax certiorari cases, Justice Leo F. McGinity, the county#;s then administrative judge, enacted monthly calendar calls of ### cases at a time, said Jon N. Santemma, an attorney with Garden City-based Jaspan Schlesinger Hoffman, who was not involved with the case."The concept was simply...with Garden City-based Jaspan Schlesinger Hoffman, who was not involved with the case."The concept was simply that this would move the cases along ? a number of cases were tried but some of the cases just fell into a state of limbo for one reason or another," said Mr. Santemma, who focuses on tax certiorari cases.When the cases were called, a representative from the county would appoint an appraiser. At that point, each side could attempt to negotiate or settle the matter, Mr. Santemma said. AlthoughNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745135almnews/745135commission) have, from time to time, exhibited somewhat comparable characteristics. The Star Chamber derived its power from the Crown; an administrative complaint is initiated by a vote of the majority of the five FTC commissioners who will ultimately hear an appeal of the decision following the administrative hearing.The Star Chamber...Chamber issued writs based on hearsay and rumor from biased and secret accusers; the commission applies the ethereal standard of "reason to believe" to issue a complaint. The proceedings of the Star Chamber were not governed by common law; the FTC#;s Part # discovery and its procedural rules regarding the...PWHS). In order to wrest jurisdiction over the merger#;s merits from the district court, the FTC determined that one of its commissioners would preside as the administrative law judge (ALJ) at the hearing that would begin without delay.Less than a month later, Inova abandoned its acquisition of PWHS. The deal#;s failure was a response not simply to the FTC#;s challenge but also, according to the hospitals, to the "unusual process changes" employed by the FTC.# FTC...according to the hospitals, to the "unusual process changes" employed by the FTC.# FTC#;s Record Before Inova-PWHS DealLikely, the process changes were a response to recent setbacks the FTC has suffered in trying to oppose mergers or acquisitions it believed violated the antitrust laws. The authority to contestNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745134almnews/745134tax professionals is how to deal with individuals and businesses who have not complied with prior tax reporting and payment obligations.Such persons fall into a variety of categories. Some honestly were unaware of their obligations (such as out-of-state individuals and companies who did not believe they had nexus to New York or were unaware of the statutory residency provisions of...or thought that they could get away with noncompliance (sometimes on the theory that "everyone does it").Eventually, many of these individuals and companies want a way to clean up these situations. Sometimes, the knowledge that they could be found out creates psychological strains on them; other times their income or...on them; other times their income or prominence has increased to the point where the risk of being caught has grown.In analyzing these cases, a tax professional and the individual or business are faced with difficult problems. Particularly when there has been noncompliance for many years, the potential liability, including...compounded because records for prior years are often missing or inadequate to determine the tax liability.The New York State and City Tax departments have a problem as well. Despite periodic declarations that they have bolstered their audit and investigation staffs and are making every effort to track down tax evaders, it isNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745131almnews/745131A Nassau County judge has multiplied by ## the amount of money he awarded to a construction company in a breach of contract lawsuit after the firm contested his original award as unsupported by the evidence.Astoria ophthalmologist Anthony Pilavas hired EMCO Tech Construction Corp. to build a $#.# million home in Plandome Manor. In EMCO Tech Construction Corp. v. Pilavas, ######/##, Supreme Court Justice Ira B. Warshawsky adjusted his computation...Justice Ira B. Warshawsky adjusted his computation of the money owed the contractor to $###,### from $#,###.It is the latest chapter in a lengthy and complex case that moved the judge in his original decision to quote an ancient Greek playwright to illustrate the opacity of the proceedings...the proceedings."#;Everything will be made clear in the end,#;" Sophocles wrote in "Oedipus Rex," the judge said in his April # decision, which capped a ##-day trial held over three months. "Regretfully, in this trial, such clarity was never quite achieved." (NYLJ, April ##).In that ruling, the judge...down payments on principle due to his belief that an "honest contractor" should not need cash up front.EMCO began work on the home without a down payment in May ####. As a result of irregular cash flows and other disagreements, the parties ended their business relationship in February #### with the house approximately two-thirds complete. ByNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745120almnews/745120the Law Journal on July # which comments upon my April ## column (NYLJ at page #)Mr. Scheinberg argues that the equitable distribution law, as enacted by the Legislature, intentionally creates a form of, if I may, "quasi-community property." I admire many of the insights in his column (particularly when he gets to the dissent in...I admire many of the insights in his column (particularly when he gets to the dissent in, and other aspects of Chapin ), but I disagree as to the key lynchpin of his argument.He begins by stating that: "The traditional thesis posits that equitable distribution is an inchoate right. He looks...thesis posits that equitable distribution is an inchoate right. He looks to the dictionary definition of "inchoate" and concludes that the equitable distribution right is a real one throughout the marriage. He concludes that "it is immediately apparent that the statutory infrastructure and decisional authority contemplates a system wherein the inchoate right becomes instantly activated upon the nuptials rather than at the tail end of the marriage: it is precisely the marital...Brien )".However, if there is really an inchoate right established upon marriage, then the right to equitable distribution of that inchoate right should not require a divorce to come into effect. Yet, the courts have consistently held that, absent the granting of a divorce (as when the cause of action fails, or one party dies pre-judgment), there is no right to an equitable distribution. See, e.g. Cornell vNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745118almnews/745118The U.S. Supreme Court handed America#;s workers a significant victory on June ##, #### by stripping away many of the procedural protections that once inappropriately immunized insurance carriers and employers from liability in...Co. v. Glenn, ### S.Ct #### (####), requires courts across the country to abandon the "arbitrary and capricious" standard of review in favor of a much less restrictive "abuse of discretion" review. As part of that review, an employer or insurer acting as a claim fiduciary is presumed to possess a conflict of interest and courts must weigh that conflict in assessing the validity of the claim determination. The natural sequelae from the Court#;s holding...discretionary authority to determine eligibility for benefits or to construe the terms of the plan," and #) if the entity exercising discretion is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.Just how to "factor" in a conflicted fiduciary#;s inherent financial conflict of interest was left open by Firestone. It became the hobgoblin of Second Circuit ERISA jurisprudence resulting, ironically, in...hobgoblin of Second Circuit ERISA jurisprudence resulting, ironically, in the deprivation of the very procedural protections that ERISA was enacted to enhance. Many circuits factored a fiduciary#;s inherent financial conflict of interest by adopting a more reasoned, "sliding scale" approach, which calibrated the intensity of the arbitrary and capricious standard of review with the "intensity" of the conflict. The SecondNewsALM Research (News)Jul 15, 2008http://www.alacrastore.com/storecontent/almnews/745117almnews/745117It is a paradox of business technology that the more important it becomes to an organization, the harder it is to control. Most modern businesses of any substantial...business technology that the more important it becomes to an organization, the harder it is to control. Most modern businesses of any substantial size have a computing architecture that includes, at the very least, a central server or servers for storing important company (and/or client) documents.These systems are usually password protected and often include various other levels of...from prying eyes. Of course, if the prying eyes are inside the company, all of that security is essentially useless.When employees decide to leave a company, either to work for a competitor or to start their own competing business, they may decide to take sensitive corporate documents with them. Not so long ago, that meant printing...the company took to protect them, the uses the employees made of them and the trust the company placed in those employees, to name just a few factors. In addition, state law may sharply limit the scope of trade secret protection and may even prevent the enforcement of some kinds ofNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745054almnews/745054the Law Office of Edward H. Wolf, Bronx Defense Attorney: Anthony Tomari, assistant attorney general, New York Facts & Allegations: On Jan. ##, ####, Joseph Muto, a lawyer, was terminated from his position as a human-rights specialist at the New York Division of Human Rights. When he applied for the position about a year earlier, Muto wrote that he had practiced law in New York but was not admitted to the New York bar at that time. During...in New York but was not admitted to the New York bar at that time. During his interview, he explained that he had been disbarred as a result of negligence in the representation of his clients. Muto claimed the disbarment stemmed from his fear of flying, which prevented his appearance at out...appearance at out-of-state cases. On March #, ####, Muto was hired for the position, with his stint at the division to begin with a one-year probationary period.During the probationary period, the division#;s senior staff reviewed Muto#;s personnel file, and it determined that he had not...division#;s former commissioner and, possibly, others, were aware of the reason. He claimed his termination was an arbitrary, bad-faith, capricious act that was a product of a grudge one of the division#;s employees harbored. He also claimed that positive probation reports, his department-leading number of case acquisitions and his popularityNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745044almnews/745044Don#;t sue banks.It#;s a simple policy, and many firms that cater to the financial industry have long followed it. In return for declining the occasional case, top firms were...and many firms that cater to the financial industry have long followed it. In return for declining the occasional case, top firms were rewarded with a steady stream of transactional, defense, and regulatory work.But with the onset of the credit crunch last August, the financial rationale behind the rule began...waiving the rule, though so far, more firms have stuck with defending banks, not suing them. And in one highly publicized case, suing backfired, prompting a high-profile divorce between Linklaters and longtime client JP Morgan Chase. That#;s been enough to give some firms pausethough even the most conservative acknowledge...not sue financial institutions," says Robert Dombroff, co-chairman of Bingham McCutchen#;s financial institutions practice. But Bingham is now willing to consider exceptions on a case-by-case basis, Dombroff says, so long as the firm believes that winning wouldn#;t set a negative industry-wide precedent that would aggrieve other clients. The firm is considering three such cases, though Dombroff wouldn#;t say who the parties wereNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745043almnews/745043Leone is introducing its own brand of hybrid?and it#;s attracting significant attention from, well, lawyers and politicians.In its drive to justice following a decade of civil war, Sierra Leone is betting on a special international court with strong national ties. The Special Court for Sierra Leone has already built a promising track record of five convictions for war crimes and crimes against humanity.Now it is revving up for its biggest challenge: the next phase...actively supported rebel forces in neighboring Sierra Leone during the latter country#;s bloody conflict. His trial before the special court resumed this year after a postponement to give a new defense team time to prepare.The true test of Sierra Leone#;s hybrid court will be the degree to which the Taylor trial and...court will be the degree to which the Taylor trial and others help close the chapter on the atrocities that befell the West African country. A NEW DESIGNIt#;s proof of the yearning for peace that in the years after a civil war, people turn to courts to mete out justice. But designing a court system that can help mend the tattered social fabric or bring ordinary citizens together to build a better future is no easy task.Purely national tribunals run the risk of being?and being seen as?biased, retaliatory, and divisive. Defendants may receive support from their remaining loyalists. Trials can become circuses. And in the worst case, bloodshed erupts again.International...from their remaining loyalists. Trials can become circuses. And in the worst case, bloodshed erupts again.International tribunals sometimes fare no better. Perceived by locals as a form of distinctly pro-Western meddling, such proceedings may lack the on-the-ground credibility essential to heal deep wounds.Enter the Special Court forNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745042almnews/745042COOLEY GODWARD KRONISH David Fischer, ##, has joined Cooley Godward Kronish as a partner in the firm#;s Washington office in its tax group. Previously, Fischer was head of tax litigation in Baker & Hostetler#;s Washington office. He...Washington University Law School. D.C. LAW STUDENTS IN COURT PROGRAM Mary Clark Brittingham, ##, has joined the D.C. Law Students in Court Program as executive director. Previously, Brittingham was an associate professor of clinical law at Georgetown University Law Center. She earned her J.D. from Antioch School of...federal and state courts. She earned her J.D. from Loyola University, Chicago School of Law. JENNER & BLOCK Eric Jackson, ##, has joined Jenner & Block as a partner in the firm#;s Washington office. Previously, he was a managing partner of Robins, Kaplan, Miller & Ciresi#;s D.C. office. He earned his J.D. from the University of Wisconsin Law School. JONES DAY...He earned his J.D. from the University of Wisconsin Law School. JONES DAY M. Carter DeLorme, ##, has joined Jones Day#;s Washington office as a partner in its labor and employment practice. Previously, DeLorme was a partner with Winston & Strawn in Washington. He earned his J.D. from Georgetown University Law Center. KELLEY DRYE & WARREN Jeffrey Kauffman, ##, has been promotedNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745041almnews/745041s no transparency in how the monitors are selected for these often lucrative contracts," Sanchez told Legal Times. "There#;s no reporting requirement. You have a potential for abuse there."The practice of hiring outside consultants to oversee corporate compliance programs has been under scrutiny since The Star-Ledger of Newark...in November that U.S. Attorney Christopher Christie of New Jersey helped the Ashcroft Group?the consulting firm of ex-Attorney General John Ashcroft?obtain a contract worth between $## million and $## million to monitor Zimmer Holdings, a medical supply company accused of Medicare fraud.The General Accountability Office, at the request of Senate Democrats, has an ongoing investigation into the use of...the new guidelines was not undertaken in response to the publicity generated by the Zimmer contract.In January, Rep. Frank Pallone (D-N.J.) introduced a proposal to codify the DOJ practices, but the bill did not get very far. Among other things, it would have required court approval of the...that at least ## of ## monitor contracts issued since #### have gone to former Justice officials or prosecutors. Others hired for such work include a former federal judge, ex-Securities and Exchange Commission officials, and corporate compliance consultants.The use of monitors also increased from a single case in #### to ## last year. This year, three agreements involving monitors have been announced since the March guidelines went into effect. HoweverNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745040almnews/745040marketplaces is becoming increasingly popular in law firms. Intelligence is being used to support and guide business development efforts, while market research has long been a cornerstone of marketing.Yet few firms evaluate the long-term growth of competitive intelligence (CI) in firm business development, and even fewer have sought to...even fewer have sought to build systematically on current efforts to create an intelligence function that can predict opportunities.This article seeks to illustrate how a law firm can build a robust intelligence function, gathering both competitive and business intelligence that will provide the greatest strategic benefit over the short and long terms. THE ONE-OFF...ONE-OFF REPORTThe most common bit of CI done in professional service firms is the one-off report.In its simplest form, it may be a pre-packaged report from a vendor, such as one of the various litigation reports available or a Dun & Bradstreet report for a smaller company. These tend to give a narrowly focused, one-dimensional view of a client, market, or industry, based on a specific practice area and in response to a business opportunity. They are reactive and can be classified more as information (informative in nature) than intelligence (a catalyst).At their most complex, one-off reports include data from multiple sources. Intelligence pertaining to several practice areas, time periods, and subjects has been...At their most complex, one-off reports include data from multiple sources. Intelligence pertaining to several practice areas, time periods, and subjects has been included as it relates to a specific inquiry.The most important element of these richer reports is the analysis: A research professional has responded to a question by collating and analyzing research derived from various sources and paradigms to support a conclusion. Competitive intelligence (intelligence concerning competitors) has been combined with business intelligence (firm-internal information, such as financial data) to give a holistic picture of the industry, market, client, firm, competitors, and their interrelationship. The report is the summation of the answer to the research question andNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745039almnews/745039When sailing ships ruled the seas, sailors were very familiar with the act of kedging. If a ship was trapped on a becalmed sea, the captain would order the crew to kedge the ship?move it in the desired direction by dropping a small anchor ahead and pulling the ship forward. This act was repeated until the wind again filled its sails.Kedging helped the ship continue its...until the wind again filled its sails.Kedging helped the ship continue its forward progress and required teamwork of both the sailors aboard the ship as well as those carrying the anchor forward. It was a true partnership.Can law librarians encourage a similar relationship between their law firm libraries and legal information vendors?The librarian/vendor relationship has historically been antagonistic. It often appears to the law...without any collaboration. Law librarians then react, often bitterly. They lament the perceived control the vendors exercise over the information world. It appears to be a situation of "big" vendors and "little" law libraries, with little constructive communication between the parties.Rather then lament the situation, would it not be better...big" vendors and "little" law libraries, with little constructive communication between the parties.Rather then lament the situation, would it not be better to take a proactive business approach?where both sides simply seek better product? Where both parties recognize that they share the same goals?such as reasonable profit, excellent service, and timely information at a fair price? OUT OF STASISLaw librarians, by kedging or improving legal information vendors#; product, also kedge themselves. Similar to the kedging sailors on a quiet sea, the legal information world can move forward if it recognizes its common and shared goals. A constructive partnership is a key to success for both law libraries and their vendors.To kedge both enterprises out of stasis and into the future, ideas must be sharedNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745038almnews/745038MCNULTY MEMO CHANGES COMINGThe McNulty memo, which addresses how federal prosecutors should treat suspected corporate wrongdoers and assess a company#;s cooperation, has long been called unfair by corporations. So last week#;s letter from Deputy Attorney General Mark Filip to the Senate Judiciary...last week#;s letter from Deputy Attorney General Mark Filip to the Senate Judiciary Committee announcing major revisions was largely viewed by the defense bar as a positive?if not perfect?step. In the letter, Filip says the Justice Department would no longer require companies to waive attorney-client privilege as a condition of cooperation, and federal prosecutors wouldn#;t demand attorney-client communications or attorney work product. "That was the point I stood up and said...federal prosecutors wouldn#;t demand attorney-client communications or attorney work product. "That was the point I stood up and said, #;Hallelujah,#;?" says Michael Ettinger, a partner in Skadden, Arps, Slate, Meagher & Flom #;s white collar and government enforcement practice. "It was a recognition of the sanctity of attorney-client privilege." But defense lawyers don#;t think Filip#;s letter is a full victory. "They came some distance on the issue, but it#;s too little too late," says Stephanie Martz, director of the White Collar Crime...Lawyers. Martz says in the past ## years, there have been five different DOJ policies covering how corporate investigations are run. "Every time you get a new deputy attorney general, it seems like you get a new policy. It#;s hard to keep up," says W. Neil Eggleston, a partner at Debevoise & Plimpton.Sen. Arlen Specter (R-Pa.), ranking member of the Senate Judiciary Committee, wasn#;t impressed. In a July ## letter to Filip, he called the revisions "unsatisfactorily vague." "My recommendation to Chairman [Patrick] Leahy is that we move ahead .?.?. to either comeNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/745037almnews/745037AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE David Cole, a professor at Georgetown University Law Center, received the Lifetime Commitment to Justice Award from the American-Arab Anti-Discrimination Committee on June ##. Cole was...Center, received the Lifetime Commitment to Justice Award from the American-Arab Anti-Discrimination Committee on June ##. Cole was honored for his work defending a group of immigrants known as the LA #. Members of the group were arrested in #### for associating with and distributing the magazines of a Palestine Liberation Organization faction. Cole defended the group pro bono for ## years. D.C. BAR BOARD OF GOVERNORS Sabine Curto, director of administration at...group pro bono for ## years. D.C. BAR BOARD OF GOVERNORS Sabine Curto, director of administration at Jenner & Block#;s Washington office, was appointed as a nonlawyer member of the Board of Governors of the District of Columbia Bar. Her term will run through June ##, ####. MINORITY CORPORATE COUNSEL ASSOCIATIONThe...at Freddie Mac in Washington received the Minority Corporate Counsel Association#;s Employer of Choice Award on June ##. The corporation was chosen for demonstrating a commitment to diversity and creating and maintaining an inclusive workplace.Also, Arnold & Porter received the Thomas L. Sager Award for demonstrating sustained commitment to improvingNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744965almnews/744965Bush, two judges on the U.S. District Court for the District of Columbia last week expressed their resolve to move the Guantanamo Bay cases as quickly as possible, invoking the high court#;s admonition that "the cost of delay can no longer be borne by those who are held in custody."But...pending in the appeals court and deep disagreements over the government#;s evidence in the cases underscored the challenges the judges face in bringing about a swift resolution.Senior Judge Thomas Hogan, who is coordinating the majority of the approximately ### habeas cases pending in the court, said in a July # status hearing that the Justice Department should "set aside every other case that#;s pending in the [Civil Division] and address this case...this case first.""The time has come to move these forward," Hogan said to an audience of about ### lawyers in the ceremonial courtroom.In a hearing two days later, Judge Richard Leon said he wanted the ## cases in his court resolved by the next administration?to prevent them from...by the next administration?to prevent them from falling into "the black hole of transition.""Be prepared. Nights. Weekends. Roll up your sleeves," Leon told a group of lawyers, some assembled in his courtroom and others listening on the phone. "The Supreme Court has spoken. They want this done and, byNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744964almnews/744964to request new arrest warrants based on alleged crimes in Darfur against senior Sudanese officials, reportedly including the Sudanese president. Those are real accomplishments for a judicial institution whose underlying statute is now seeing only its ##th birthday.Ten years ago in Rome on July ##, after five intense weeks of...seeing only its ##th birthday.Ten years ago in Rome on July ##, after five intense weeks of negotiations, lawyers from nearly ### governments achieved a historic breakthrough. They helped extend the rule of law to those individuals responsible for the mass slaughter of civilians and for the use of rape...historic breakthrough. They helped extend the rule of law to those individuals responsible for the mass slaughter of civilians and for the use of rape as a weapon of war. They agreed on a treaty creating the International Criminal Court.The ICC is the world#;s first permanent court mandated to bring to justice the perpetrators of war crimes...####, ## judges were sworn in. The prosecutor took office in June #### after his election by the statute#;s state parties. The ICC, once a distant aspiration, began to become a reality.The U.S. government has had a stormy relationship with the court. The Clinton administration, though initially championing the ICC, voted against the treaty in Rome, but then still signed it inNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744959almnews/744959Finance and Securities Law Section and its Estates, Trusts and Probate Law Section present "Effective Drafting for the Business Lawyer." The class begins at # a.m. Faculty: Ross Guberman, Legal Writing Pro. Location: D.C. Bar Conference Center, #### H St. N.W., B-# Level. Cost: $### co-sponsoring...Witcoff and George Mason University School of Law present the "Seventh Annual Symposium on Hot Topics in Patent Law." The conference begins at #:## a.m. Speakers: U.S. District Judges T.S. Ellis III, Leonie Brinkema, and John Anderson, all of the Eastern District of Virginia; Senior Judge SNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744958almnews/744958It was a deal that could shape the future of Arent Fox.Firm Chairman Marc Fleischaker handpicked six young D.C. partners to spearhead the project. The team...project. The team spent several Sundays in the office, recording hundreds of hours. Despite the grueling schedule, one of the partners, Jeremy Fox, recalls it as "a seven-day-a-week chore of love."That#;s because the work wasn#;t for just any client. The team, led by partner Mark Katz, was responsible for...That#;s because the work wasn#;t for just any client. The team, led by partner Mark Katz, was responsible for closing the deal on a high-profile new building for its own ###-lawyer Washington office.Committing to office space is a sensitive, high-risk undertaking for any firm, since it#;s one of the biggest items on the balance sheet.For Arent Fox, that could be...the balance sheet.For Arent Fox, that could be especially true. The firm has slipped in revenue and prestige in Washington in recent years, making a splashy real estate deal more than just a chance at additional space. It was a prime opportunity to re-elevate the firm#;s brand in its native market. Of course, there#;s a practical consideration, too: The firm is on pace to outgrow its current #### Connecticut Ave. N.W. location by the time its lease is upNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744957almnews/744957For several years, members of the corporate defense bar have been bellyaching about an erosion of attorney-client privilege.Now, as a result of the Bush administration#;s aggressive stance on corporate crime, consternation has reached a fevered pitch. Defense attorneys are concerned that their ability to adequately represent their clients will be compromised by allowing government investigators access to confidential material...attorney-client privilege arms plaintiffs lawyers with potentially damaging evidence to use against companies in civil litigation. In response, the white collar bar is backing a legislative proposal that would allow corporations to turn over privileged material to the Securities and Exchange Commission, without fear that it will wind up being...longer," says O#;Melveny & Myers partner Alejandro Mayorkas, former U.S. attorney for the Central District of California in Los Angeles.DOJ officials maintain that a company#;s willingness to waive attorney-client privilege is simply one of many considerations prosecutors weigh when deciding whether to seek charges against a business organization. "DOJ policy does not require a waiver," Southern District of New York prosecutor Shirah Neiman said when addressing the ABA conference. "Defense counsel can work with prosecutors to get them the...many white collar defense attorneys report having been asked to waive attorney-client privilege in an initial meeting with prosecutors."That topic is now raised as one of the first series of requests made by prosecutors, before any discussion of the facts," says Skadden, Arps, Slate, Meagher & Flom partner Keith KrakaurNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744955almnews/744955Jr. of counsel), for petitioner. Edward Z. Menkin, Syracuse, for respondent. Per Curiam ? Respondent was admitted to practice by this Court in ####. He maintained a law office in the City of Ogdensburg, St. Lawrence County.On Jan. ##, ####, respondent pleaded guilty to felony mail fraud in violation of ##...of imprisonment, three years supervised release and restitution, which he has paid in full. According to the plea agreement, respondent drafted an irrevocable trust for a ##-year-old, legally blind individual, and subsequently made a series of fraudulent loans from the trust without that individual#;s knowledge.Petitioner moves for an order striking respondent#;s name from the roll of...s knowledge.Petitioner moves for an order striking respondent#;s name from the roll of attorneys and disbarring him pursuant to Judiciary Law ?##(#)(a) and (b) based upon respondent#;s federal felony conviction. In reply, respondent submits an affidavit in which he tenders his resignation in substantial compliance withNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744951almnews/744951Vesey St. Call ###-###-#### or visit www.nycla.org. Practising Law InstituteNinth Annual Private Equity Forum ####, first of two-day forum, # a.m.-# p.m. Day two will be held tomorrow. PLI Center, ### Seventh Ave. Arrive with enough time to register. Call ###-###-#PLI...held at ## W. ##th St. Call ###-###-#### or visit www.nycbar.org.?In-House Women Lawyers Networking Event, #:##-## a.m. Contact Ayala Deutsch at adeutsch@nba.com.?CLE: Securities Litigation: Stoneridge, Tellabs ? Recent Developments and Decisions, #-# p.m. New York County Lawyers...New York County Lawyers#; AssociationAll events held at ## Vesey St. Call ###-###-#### or visit www.nycla.org.?CLE Westlaw: Intermediate, ##-## a.m.?CLE Westlaw: Litigation Research, ##:## a.m.-##:## p.m.?Committee Meeting: Law and Literature ("The Book of Daniel" by E.L. Doctorow), # p.m. Practising Law InstituteNinth Annual...The Book of Daniel" by E.L. Doctorow), # p.m. Practising Law InstituteNinth Annual Private Equity Forum ####, second of two-day forum, # a.m.-## p.m. PLI Center, ### Seventh Ave. Call ###-###-#PLI or visit www.pli.edu.NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744948almnews/744948Outside Counsel: CAFA ####: Rise in Employment Class-Action Litigation, by Stephen M. Prignano and Stephen J. MacGillivray ? # Disciplinary Proceedings ? #Special Section?#-## A New Regime in Europe for Registration of Chemicals Lenders, Foreclosure and the Superfund Safe Harbor ?and moreCalendar of Events ? #Classifieds ? ##Court Calendars ? ##Court Notes ? ##DecisionsNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744936almnews/744936AN ATTORNEY who included a provision in a retainer agreement providing that any future fee disputes with his client would be subject to "binding" arbitration, may nonetheless pursue litigation to reverse an arbitration...client would be subject to "binding" arbitration, may nonetheless pursue litigation to reverse an arbitration award that cut his claim for fees by $##,###, a Manhattan judge has ruled.Supreme Court Justice Carol Robinson Edmead ruled attorney Richard L. Gold was not bound by the award because the retainer agreement...ruled.Supreme Court Justice Carol Robinson Edmead ruled attorney Richard L. Gold was not bound by the award because the retainer agreement did not contain a prescribed waiver of both his and his client#;s right to litigate anew the issues resolved in the arbitration.Granting clients a right to take fee disputes in the range of $#,### to $##,### to mandatory arbitration was one of a series of reforms initially recommended in #### by a commission appointed by Chief Judge Judith S. Kaye to restore "public confidence in the entire legal system" that had become "seriously eroded."The requirement for...their lawyers, however, could agree to mandatory arbitration, and many county bar associations ran programs for the arbitration and mediation of fee disputes.The rule as finally adopted contained a provision allowing either attorneys or their clients to seek a de novo review. That requirement was adopted to add a measure of comfort and an element of protection, then-Chief Administrative Judge Jonathan Lippman said in introducing the program in #### (NYLJ, Jan. ##, ####NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744935almnews/744935The authors of anonymous online posts that accused a former congressman of paying $##,### to the mayor of Mamaroneck in connection with a home renovation project may soon find themselves the named defendants in a defamation action.Westchester County Court Judge Rory J. Bellantoni held that after Richard Ottinger and his wife notified the online contributors of their right to...Court Judge Rory J. Bellantoni held that after Richard Ottinger and his wife notified the online contributors of their right to intervene anonymously and stated a prima facie case of defamation against the fictitiously named defendants, the couple had sufficiently satisfied the standard necessary to pierce the free speech rights of...couple had sufficiently satisfied the standard necessary to pierce the free speech rights of the writers who allegedly posted false comments about the Ottingers on a Web site operated by The Journal News.The posts appeared under the names "hadenough," "SAVE#####" and "aoxomoxoa."Mark A. Fowler of Satterlee Stephens Burke & Burke, who represented the newspaper, said that while an Internet service provider cannot be held liable for the defamatory statements...Internet service provider cannot be held liable for the defamatory statements of its subscribers, many providers traditionally would turn over identifying information of users in a "knee-jerk fashion." By requiring a plaintiff to make a heightened showing before obtaining the identity of anonymous posters, Judge Bellantoni#;s ruling sets forth "important safeguards" for the entire online community, where speech sometimesNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744934almnews/744934the state when members#; ballots are counted Wednesday. If approved, the union would become the ##th and last bargaining unit representing court employees to approve a new contract.Though provisions vary according to the location of the non-judicial employees and their job titles, all the contracts provide for a # percent raise retroactive to April #, ####, and another # percent increase retroactive to April #, ####. The contracts also call for a # percent raise on April #, ####, and a # percent raise on April #, ####.The contracts also require that the salaries of non-judicial court workers making $###,### or more be...are calculated, it will take the state comptroller until September to write the first checks reflecting the retroactive pay and new salary levels. Governor David A. Paterson has signed a bill approved by the Legislature in the final hours of its regular #### session, A#####/S####, authorizing OCA to implement the labor agreements with its...unions.Once the pay raises go into effect, Mr. Marks said #,### non-judicial employees represented by unions will be at the $###,###-a-year salary level or above and will have their pay capped pending a judicial pay increase. The courts have about ##,### non-judicial employees.In addition, ### OCA employees who are not represented by unions will make...increase. The courts have about ##,### non-judicial employees.In addition, ### OCA employees who are not represented by unions will make $###,### a year or more if the OCA extends the raises to them, as the office typically does when entering into new contracts with its unionized employees, according to Mr. Marks. The office will impose the salary cap requirementNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744928almnews/744928State Bar to Study Courthouse ConditionsA New York State Bar Association task force has begun a study of courthouse conditions across the state. President Bernice K. Leber said the goal will be to find ways to make courthouses more user-friendly...access the courts and attorneys better able to serve clients. Some of the questions she said task force members will be asking are, "Is there a place to hang your coat? Can you get a cup of coffee? Is there a computer you can look at?" Made up of members of the Commercial and Federal Litigation Section, the task force is chaired by Gregory K. Arenson...Gary Condit#;s defamation suit against Vanity Fair contributor Dominick Dunne for comments about murdered Washington, D.C., intern Chandra Levy has been dismissed by a federal judge. Mr. Condit claimed Mr. Dunne slandered him during a #### interview with Bob Costas on "Larry King Live," in part by saying Mr. Condit "knows more than he has ever told" about Ms. Levy...Condit claimed slander per se against the author for comments he made on talk shows, at dinner parties and to newspapers. The two sides reached a confidential settlement in that case in ####. Condit v. Dunne, ## Civ. #####, will be published tomorrow. ? Mark Hamblett Man Loses Bid to Recoup TaxNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744923almnews/744923decision will be published Wednesday.Jeffrey G. Huvelle of Covington & Burling in Washington, D.C., who represented the Verizon defendants, called the circuit#;s ruling "a nail in the coffin for plaintiffs#; lawyers attempting to invalidate cash balance plans."Judges Dennis Jacobs, Amalya Kearse, and Robert Katzmann decided the appeals, with...Robert Katzmann decided the appeals, with Judge Katzmann writing for the circuit.The Employment Retirement Income Security Act (ERISA) recognizes two kinds of retirement plans: a defined contribution plan such as a ###(k), where the employee bears investment risks, and a defined benefit plan, which generally promises a specific benefit regardless of how the market performs.In a cash balance plan, the circuit explained in Esden v. Bank of Boston, ### F.#d ### (#d Cir. ####), "a hypothetical account" is established in an employee#;s name and "Benefits are credited to that #;account#; over time, driven by two variables: (#) the employer...name and "Benefits are credited to that #;account#; over time, driven by two variables: (#) the employer#;s hypothetical #;contributions,#; and (#) hypothetical earnings expressed as interest credits."Judge Katzmann explained that "cash balance plans are often described as #;hybrid#;: they create a benefit structure that simulates that of a defined contribution plan, but employers do not deposit funds in actual individual accounts, and employers, not employees, bear the market risks."And because "the individual...that the plans survive scrutiny under ?###, and the Second Circuit said it was now joining the others in so holding.Section ### states that "a defined benefit plan shall be treated as not satisfying the requirements of this paragraph if, under the plan, an employee#;s benefit accrual is ceased, or the rate of an employee#;sNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744920almnews/744920Alarmed by the dramatic rise in housing foreclosures across the nation, judges have taken a variety of actions to slow the pace, ranging from outright dismissals for incomplete work to mandated mediation to threatening attorneys with sanctions.While attorneys hold...to threatening attorneys with sanctions.While attorneys hold "boot camps" to train colleagues on how to handle foreclosures, judges have been closing down shortcuts, such as telephone hearings.Judges and bar associations in several states have also issued a call to all lawyers asking them to represent pro bono thousands of distressed homeowners.A number of suits have accused banks of allegedly taking shortcuts to rush foreclosures through, often using so-called "foreclosure mills" -- law firms that handle a high volume of foreclosure actions -- to handle the cases, according to foreclosure defense lawyers, bankruptcy lawyers and consumer rights groups.They claim that banks -- so...cases, according to foreclosure defense lawyers, bankruptcy lawyers and consumer rights groups.They claim that banks -- so-called "securitization lenders" that bought scores of mortgages as investments -- are filing foreclosure actions without the original paperwork and sometimes, without ensuring that homeowners are properly notified.Judges around the country are getting the...to take away someone#;s home, it should be done properly."#;Political environment#;Tom Deutsch, deputy executive director of the Washington-based American Securitization Forum, a group that represents banks, major law firms and financial companies, acknowledged that judges are becoming "sticklers" for proper paperwork in foreclosure actions. But he assertsNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744919almnews/744919WASHINGTON -- For Karen Sutton, her twin sister Kimberly Hinton, and Ella Williams, the U.S. Supreme Court was a hostile environment from #### to #### because of a series of employment decisions during those years that left the three women and countless others outside the protections of the landmark Americans With Disabilities Act...of employment decisions during those years that left the three women and countless others outside the protections of the landmark Americans With Disabilities Act.Nearly a decade later, Congress appears on the verge of undoing much of the high court#;s handiwork.The names of Sutton and Williams, enshrined in Supreme...the high court#;s handiwork.The names of Sutton and Williams, enshrined in Supreme Court case reports, will take on additional prominence if the Senate, as seems likely, follows the lead of the House and adopts the ADA Amendments Act of ####.The legislation, approved on June ## by an overwhelming...in Sutton v. United Air Lines, ### U.S. ### (####), and Toyota Motor Mfg. v. Williams, ### U.S. ### (####). The culmination of a remarkable joint effort by disability advocates, business community leaders and members of Congress, the bill attempts to push federal courts off a path that has led, by one group#;s study, to the rejection of ##% of plaintiffs#; ADA-related job bias claims in #### alone."ThereNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744918almnews/744918A web site featuring "hot" young female associates at several prominent law firms pulled the plug last week after some of the women on the site...that their photos and profiles were posted.The Web site, HotAttorney.com, included photos and biographical information of young women associates at law firms such as K&L Gates, DLA Piper, Cozen O#;Connor, Latham & Watkins and others. The Web site gathered information from the law firms#; Web sites.Following attention...down earlier today," said an unidentified source responding to an e-mail requesting an interview. The person writing the e-mail did not respond to a request to reveal his or her identity. The Web site did not include the name of a contact.Some of the women who were featured on the site were unaware that their photos and profiles were posted and were angry when they...associate at Cozen O#;Connor who said on July # that she did not know that she was included on HotAttorney.com until contacted by a reporter from The National Law Journal. "I think we should sue them."NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744917almnews/744917KANSAS CITY, MO.-based law firms Polsinelli Shalton Flanigan Suelthaus and Shughart Thomson & Kilroy are considering a merger with each other in a move that would knit together their eastern and western U.S. networks.The boards of directors of the two firms "have agreed to explore a possible merger" and have recently begun a due diligence process to review the proposed merger, the firms said in a joint press release. The firms are focused on examining the strategic value of combining their expertise and geographic reach, they said.Polsinelli, which specializes inNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744916almnews/744916BRINKS HOFER GILSON & Lione, a Chicago intellectual property law firm, is opening an office in Raleigh/Durham, N.C., with the hiring of two local patent attorneys who the firm...two local patent attorneys who the firm hopes will help expand its existing client ties there.Brinks Hofer is hiring Allen Baum and Josh Elliott as partners from the Raleigh-based Hutchison Law Group, and the new office will open on July ##, the firm said in a press release.Brinks Hofer already has clients in the area, and opening the Southeastern U.S. outpost will allow it to address "increasing demand" from...outpost will allow it to address "increasing demand" from those clients, the firm#;s president, Gary M. Ropski, said in the release. The expansion comes as the firm has been looking to gain more clients in the pharmaceutical/biotech area, Ropski said.NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744915almnews/744915to Dean Erwin Chemerinsky, former professor at Duke Law School, founding faculty members of Irvine#;s self-described "dream team" include Dan L. Burk, formerly a professor at the University of Minnesota Law School; Joseph F.C. DiMento, director of the Newkirk Center for Science and Society; Catherine Fisk, formerly ofNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744914almnews/744914Chief Executive Officer Thomas L. VanKirk will be handing over the reins of the firm in June #### to Chief Diversity and Integration Officer John A. "Jack" Barbour.Barbour was the president and managing shareholder of Klett Rooney Lieber & Schorling before it merged into Buchanan Ingersoll in July ####. He became...it merged into Buchanan Ingersoll in July ####. He became an executive shareholder at the combined firm, where he focused on integration and cross-selling as well as his real estate development and financing practice. Barbour said VanKirk made it clear at his last election to another term as CEO that he wouldn#;t look to serve after ####."I think it was always known it was a possibility [that I would take over as CEO,] but when we did the merger, I did not come here with the intention of succeeding Tom," Barbour said.NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744913almnews/744913clients who are often working in different parts of the world.The firm is taking ###,### square feet of space in the Met# project, a $# billion real estate development in downtown Miami that will include two high-rise towers, a luxury hotel and offices. The entire complex has an energy-efficient "green" design.NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744912almnews/744912THE U.S. SUPREME COURT has asked Exxon Mobil Corp. to respond by July ## to a recent filing by the Alaskan fishermen, families and others whose $#.# billion punitive damages award for the Exxon Valdez oil spill was cut to...partner in the Anchorage, Alaska, office of Seattle#;s Davis Wright Tremaine, asked the high court last week to make clear in its judgment that a court rule on interest on certain money judgments does not apply to this case, or, in the alternative, that his clients are entitled to interestNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744911almnews/744911tech digsBuchanan Ingersoll to get new leadershipNew Calif. law school names founding facultyChicago-based IP firm opens N.C. officeKansas City, Mo.-based firms consider a mergerThe U.S. Supreme Court has asked Exxon Mobil Corp. to respond by July ## to a recent filing by the Alaskan fishermen, families and others whose $#.# billion punitive damages award for the Exxon Valdez oil spill was cut to...partner in the Anchorage, Alaska, office of Seattle#;s Davis Wright Tremaine, asked the high court last week to make clear in its judgment that a court rule on interest on certain money judgments does not apply to this case, or, in the alternative, that his clients are entitled to interest...clients who are often working in different parts of the world.The firm is taking ###,### square feet of space in the Met# project, a $# billion real estate development in downtown Miami that will include two high-rise towers, a luxury hotel and offices. The entire complex has an energy-efficient "green" design.After six years of leadership that led to dramatic growth at Buchanan...chief Executive Officer Thomas L. VanKirk will be handing over the reins of the firm in June #### to Chief Diversity and Integration Officer John A. "Jack" Barbour.Barbour was the president and managing shareholder of Klett Rooney Lieber & Schorling before it merged into Buchanan Ingersoll in July ####. He becameNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744910almnews/744910It#;s the truth: It may be getting tougher to lie in court.A wide range of tests designed to catch liars is starting to gain some respect in court, including the much abused polygraph, voice stress analyzers and...wide range of tests designed to catch liars is starting to gain some respect in court, including the much abused polygraph, voice stress analyzers and a newer test that tries to tell if someone is faking an illness or injury.In recent years, courts have expanded the use of polygraphs in...is faking an illness or injury.In recent years, courts have expanded the use of polygraphs in particular, allowing lie detector results to be admitted as evidence, and subjecting more individuals to mandatory testing, including parolees, sex offenders and police officers.Many lawyers cite technological advancements and increased use of lie...more individuals to mandatory testing, including parolees, sex offenders and police officers.Many lawyers cite technological advancements and increased use of lie detectors in general as reasons for their growing acceptance. As the tests get more reliable, and more people use them, they say, more judges are willing to consider them as evidence."Nobody could spell polygraph five years ago. But as the technology gets better and better, judges are feeling more comfortable with at least eyeballing the results, " said Susan Moss of New York#;s matrimonialNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744907almnews/744907On June ##, the U.S. Supreme Court decided Exxon Shipping Co. v. Baker,# a ruling likely to fortify the view that, as a matter of common law decision-making and as a matter of constitutional due process, an award of punitive damages should not exceed the amount of the compensatory award.In other words, a punitive-to-compensatory ratio of #:# should thus yield the maximum punitive damages in a given case.To be sure, some will argue that there are, may be or ought to be, exceptions; some will argue that the Court was...will argue that there are, may be or ought to be, exceptions; some will argue that the Court was only deciding federal common law in a maritime case and not the limits of state common law; and some may say that nuanced readings of Exxon, together with past Supreme Court decisions...of Exxon, together with past Supreme Court decisions, coupled with various splits among the justices, still leaves some room for accepting punitive awards that exceed a #:# ratio.Although such ruminations certainly are arguable and we can expect a swell of scholarly debate in the law reviews, for the most part, for now, the nation#;s High Court has sent a strong signal, by a vote of #-# (Justice Samuel Alito Jr. did not participate), that punitive damages should not exceed the compensatory damages in a given case. This particular decision is framed within a common law motif but the Court#;s opinion also hints strongly that, for the most part, due process considerations should usually lead to the same...usually lead to the same result.The correct question to ask is whether the Court#;s exposition about common law limits on punitive damages in a maritime case will be embraced by state courts. A subsidiary question is, how quickly? The "stealth bomber" question is what will be the effect upon state statutes now permitting ratios higher than #:#NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744906almnews/744906the number of class actions filed in, or subsequently removed to, federal court. For many defendants, this newly available federal forum has been viewed positively, as many prefer federal courts to state courts because of federal courts#; generally more strict application of discovery rules, among other reasons.Of course, employment litigation...of discovery rules, among other reasons.Of course, employment litigation claims have not been immune to the trend toward class actions. In fact, according to a recent report from the Federal Judicial Center concerning the impact of CAFA, a rise in labor and employment class actions has been at the forefront of the overall increase in such actions.CAFA redefined the requirements for diversity...jurisdiction in all cases formerly was premised on the concept of complete diversity between all parties, with the result that if even one plaintiff was a citizen of the same state as any defendant, federal courts would have no diversity jurisdiction.CAFA has created a new standard requiring only minimal diversity for certain class actions. In cases where the amount in controversy exceeds $# million, not including interest and costs...not including interest and costs, federal courts now have diversity jurisdiction in any class action where:(#) any single member of the plaintiff class is a citizen of a U.S. state different from any defendant named in the action;(#) any single member of the plaintiff class is a foreign state or a citizen thereof and any named defendant is a citizen of a U.S. state; or(#) any single member of the plaintiff class is a citizen of a U.S. state and any named defendant is a foreign state.There are exceptions where a federal court is permitted, or even is required, to decline jurisdiction over class actions in certain circumstances, such as where a large percentage of the class members are citizens of the same state as the primary defendants and/or a defendant from whom significant relief is sought. Moreover, certain types of class actions, such as securities class actions and state-law corporate governance class actions, are excluded from CAFA altogether.However, there can be no doubt that CAFA has thrownNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744781almnews/744781VIRTUALLY every financial institution is aware that a borrower#;s contaminated assets can give rise to significant environmental liability in the workout and foreclosure context. To a certain extent, however, lenders may have been lulled into a false sense of security after Congress amended the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in #### to clarify and expand a statutory safe harbor for lenders. Although that amended safe harbor provides banks with considerable comfort, it has not been fully tested, especially in hard economic...banks with considerable comfort, it has not been fully tested, especially in hard economic times, and the case law interpreting its limits is surprisingly sparse. A recent enforcement action brought against a major bank in New York, which resulted in a settlement of nearly $# million, highlights the need for vigilance and caution.With the current economic down- turn, the increased volume and pace of workout...exemption. Now more than ever financial institutions should be certain that they understand the subtleties and limits of CERCLA#;s safe harbor requirements and, just as importantly, that their workout professionals proceed with an acute awareness that their actions and inactions could attract environmental liability if they are not carefully calibrated...the safe harbor. Risk Under SuperfundSince its enactment in ####, CERCLA has imposed joint and several liability on owners and operators of contaminated facilities. Even as originally enacted, however, CERCLA included an exemption from liability for any lender that "without participating in the management of a?facility, holds indicia of ownership primarily to protect his security interest."# This broad but vague exemption provided little practical guidance and in fact createdNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744780almnews/744780The onset of summer has seen rising temperatures and a steady flow of productivity by the courts throughout the state as they continue to render opinions significant to the practice of trusts and estates. Attorney-fiduciary disclosure, fiduciary eligibility, and discovery are but a sampling of the issues confronted over the past two months, which will serve as the focus of this month#;s column. Disclosure Under SCPA ####-aIn an uncontested probate proceeding, the court was confronted with the issue of whether...confronted with the issue of whether the acknowledgement of disclosure submitted by the nominated attorney-fiduciary was in compliance with the dictates of SCPA ####-a.In support of his appointment, the petitioner submitted an acknowledgement executed by the decedent. The court noted that while the statements contained in the acknowledgment...executed by the decedent. The court noted that while the statements contained in the acknowledgment did not comply with the current requirements of SCPA ####-a, they did appear to comport with those required by the statute at the time the acknowledgment was executed. Citing Matter of Griffin, ## Misc#d ###...the material requirements of the acknowledgment will deprive an attorney-fiduciary of the full statutory rate. To this extent, the court held that inasmuch as both model statements included in the statute contained a line for the witness#; signature, the signature was a substantial component of the statutory requirement that could not be overlooked. Since the statute failed to provide any remedy for failure to include the signatureNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744760almnews/744760A NEW European regulatory regime for the registration and assessment of chemicals known as REACH# is now coming into effect, including an initial compliance phase which closes on Dec. #, ####. REACH replaces a complicated patchwork of EU Regulations and Directives with one comprehensive regulation. Critically, companies around the world, including the United States, will need to comply in...United States, will need to comply in order to continue to sell or use chemicals in Europe unless their substances are specifically exempted. REACH is a part of the new vanguard in environmental regulation. Traditional environmental laws have focused principally on command-and-control approaches that levy fines or penalties for...among other things, contamination, releases of hazardous substances into the environment, waste and materials management, environmental performance reporting, and health and safety issues. REACH, like a growing number of other new environmental regulations, is focused instead on what we make and how we make it, and on finding ways to use...that minimize impacts on human health and the environment.While fines and penalties can be imposed for noncompliance, the principal sanction for noncompliance can be a ban on the sale or use of nonconforming products or materials. Companies selling their products in multiple markets around the world need to navigate throughNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744759almnews/744759THE ENACTMENT of New York#;s Brownfield Cleanup Act in October #### was hailed as a breakthrough by governmental officials, environmental groups, community activists and the business community. Enthusiasm for the Brownfield Cleanup Program (BCP or "program"), authorized under the act...from strengthened liability protection, acceptance of use-based cleanup standards, inclusive eligibility criteria, and generous tax credits.Fast forward to the spring of ####, with a moratorium on acceptance of sites into the program, legal challenges to the eligibility criteria, the projected disbursement of $#.# billion in tax credits,#...when compared with the state#;s earlier Voluntary Cleanup Program,# and the buzz was no longer so positive. In response, the state Legislature enacted a series of amendments to the act that were designed to remedy its perceived flaws.The principal focus of the amendments to the statute is to...focus of the amendments to the statute is to provide tax credits in proportion to the remedial effort expended. However, the statute did not address a key concern that many observers and legislators believe has hamstrung the BCP for the past several years ? the restrictive criteria that the New York StateNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744758almnews/744758NEW YORK#;S Navigation Law regulates petroleum discharges, making dischargers strictly liable for all necessary cleanup and removal costs. If a discharger fails to promptly remediate a contaminated site, the state will conduct cleanup and removal activities and seek indemnification. The ability of a discharger to challenge the reasonableness of cleanup and removal costs incurred by the state has been the cause of much consternation on the part of...much consternation on the part of environmental practitioners. To date, courts have not allowed dischargers to challenge the state#;s expenditures in the context of a Navigation Law action, holding either that the discharger lacked a legal right to assert a challenge or that the attempt to do so was untimely. It is abundantly clear ? that a discharger cannot contest the reasonableness of cleanup and removal costs in the context of the state#;s action for reimbursement. The Court of Appeals and...the state#;s action for reimbursement. The Court of Appeals and the Third Department have clarified that the proper vehicle in which to raise such a challenge is an Article ## proceeding.While the current guidance provided by the courts is less than logical, it at least sets forth a procedure to preserve the ability to challenge cleanup and removal costs. Standard ProcedureGenerally, after a discharge has occurred, the New York State Department of Environmental Conservation (NYSDEC) will send a "liability letter" to the property owner and other potentially liable entities directing the discharger to remediate the spill. If NYSDEC cannot identify any potential dischargers...potential dischargers or convince identified dischargers to conduct the remediation, it will utilize the New York Environmental Protection and Spill Compensation Fund ("Fund") to retain a state contractor to undertake remediation efforts.Once remediation is completed, NYSDEC transfers the matter to the Attorney General#;s Office for recovery of the expendituresNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744756almnews/744756MIAMI -- Wal-Mart Stores Inc. is deploying new software to keep a watchful eye on its law firms and make sure the attorneys working on its matters are diverse.The world#;s largest retailer has developed new...Mart will drop law firms that don#;t meet diversity benchmarks, he said.Rivera spoke at the Florida Bar#;s diversity symposium last month on a panel of four in-house attorneys who discussed their commitment to diversity and the pressure they apply to outside law firms to become more diverse...Wal-Mart has been demanding more diversity among the relationship partners managing its work at law firms, and company leaders have taken work away from a handful of firms they didn#;t think fully embraced diversity.The company works with ### law firms on a regular basis and another ### periodically."We severed relationships with four firms because we didn#;t think they had the commitment," Rivera told the audience...minorities and more women are staffing their outside legal assignments.Different approachesHow far companies go to ensure diversity often depends on the internal philosophy of a company and the amount of money it can spend on the effort, said Steven Sibner, president of the South Florida chapter of the Association ofNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744755almnews/744755for promoting diversity, monitor how credit for business development is meted out and teach senior male attorneys to be less fearful of mentoring women in a new report aimed at advancing women#;s legal careers.The group hopes the report, released this week, will increase the percentage of women in top...nearly equal numbers.The recommendations focus on creating transparency so junior lawyers know how to climb the leadership ladder, financially rewarding senior attorneys who mentor a diverse group of lawyers and holding people accountable for women being treated fairly and given opportunities.It also calls on firms to measure and track...women."The focus is on actions -- what specific actions the firms can take to advance women and enhance their own leadership structure," said Stephanie Scharf, a partner in New York-based Schoeman Updike & Kaufman#;s Chicago office who chaired the committee that assembled ### legal leaders last November in Washington to...be more effective and suggest that firms need to use more of the tools than they have in the past. The report gives firm leaders a blueprint to effect change, said Holly English, NAWL#;s president."The single most important thing is that leaders at the top of law firms endorseNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744754almnews/744754their march to the altar in the second quarter of ####, but just how many mergers occurred depends on whom you ask. Altman Weil announced a sharp increase in merger activity during the second quarter. It pegged law firm mergers at ##, compared with ## in the first quarter.At the...pegged law firm mergers at ##, compared with ## in the first quarter.At the same time, competitor Hildebrandt International announced steady merger activity, with a total of ##, compared with ## mergers in the first quarter of ####.The discrepancy stems from how the two consultancies count the pairings. LisaNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744753almnews/744753A BAR COMPLAINT has been filed against Georgia attorney James W. Smith, who was scolded by a judge for dissing a military gold star pin that his opposing counsel wore to honor a son killed in Iraq.Atlanta attorney William G. McDaniel filed the complaint, which references a reprimand Georgia Circuit Judge David R. Sweat handed down on June ## for his remarks in two depositions in a personal injury case he litigated against attorney Andrew Marshall.In one deposition, Smith asked, "What#;s the little pin on your shirt mean?" Marshall responded...litigated against attorney Andrew Marshall.In one deposition, Smith asked, "What#;s the little pin on your shirt mean?" Marshall responded, "It means I had a son that was killed in action serving his country." Smith said, "So that gives you the right to browbeat my client?"Later in the same...So that gives you the right to browbeat my client?"Later in the same case, Smith asked Marshall, "Why don#;t you go jump in a lake, Drew? Why don#;t you go over there -- Where#;s your pin today?""The idea of losing a ##-year-old son and then being ridiculed by a piece of slime, it made my blood boil," McDaniel said. "I#;m not so crazy about the war myself but...you don#;t tell a father something like that about his son who was killed."NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744752almnews/744752WHAT HAPPENS when you invite a first-year associate to appear on your reality television show? Your lawyers get a rookie attorney quibbling over every jot and tittle in his contract."I spent more time trying to edit their contract than I spent in the...I felt sorry for the [show#;s lawyers]. I kept calling them back saying, #;When you said this, did you mean this? You might consider a revision of this contract.#;"The law review veteran explained, "I was very picky on editing and grammar and defined terms, so it was very awkward...veteran explained, "I was very picky on editing and grammar and defined terms, so it was very awkward reading the contract. It got passed around a long time."On the program, a flock of bachelors competed for the affections of bachelorette DeAnna Pappas. Anderson lasted longer than most, but was eliminated on June ##.He#;s got...because I am getting dumped on national TV -- that day was the day the bar results came out, and I didn#;t have access to a computer. I could have had a really bad day."NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744751almnews/744751could be the right moment to revive that anthem for corporate lawyers. For the very first time since that memorable year, Silicon Valley has gone a whole quarter without a venture-backed company going public.Still, John W. Larson, a corporate lawyer in Morgan, Lewis & Bockius#; San Francisco office who actually lived through those dark times when gasoline, musical taste and venture capital slowed to...corporate lawyer in Morgan, Lewis & Bockius#; San Francisco office who actually lived through those dark times when gasoline, musical taste and venture capital slowed to a trickle, believes #### is not close to being as bad as ####."The difference is enormous -- it#;s not even #/###th the same," he said.Following the oil crisis, venture funding was in the toilet...same," he said.Following the oil crisis, venture funding was in the toilet between #### and ####. It was so bad that Larson thought about a move that would send a chill down any dealmaker#;s back: "I thought about becoming a litigator."David Bell, a partner at Fenwick & West in Mountain View, Calif., doesn#;t think the Valley is headed for another dot-com bust -- the measuring stick of doomNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744750almnews/744750Lawyer in loveWhat happens when you invite a first-year associate to appear on your reality television show? Your lawyers get a rookie attorney quibbling over every jot and tittle in his contract."I spent more time trying to edit their contract than I spent in the...I felt sorry for the [show#;s lawyers]. I kept calling them back saying, #;When you said this, did you mean this? You might consider a revision of this contract.#;"The law review veteran explained, "I was very picky on editing and grammar and defined terms, so it was very awkward...veteran explained, "I was very picky on editing and grammar and defined terms, so it was very awkward reading the contract. It got passed around a long time."On the program, a flock of bachelors competed for the affections of bachelorette DeAnna Pappas. Anderson lasted longer than most, but was eliminated on June ##.He#;s got...because I am getting dumped on national TV -- that day was the day the bar results came out, and I didn#;t have access to a computer. I could have had a really bad day."— Texas LawyerSilicon Valley is freaking outRemember the #### disco chart-topper Le Freak by the band Chic?Now could be theNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744749almnews/744749PHILADELPHIA -- The maker of Splenda, the nation#;s best-selling sugar substitute, has won an injunction that bars the manufacturer of a generic version of its product from continuing to distribute store-brand products that mimic Splenda#;s packaging.U.S. District Judge John R. Padova rejected...baked goods, fruit, and/or cereal, these depictions do not diminish the inherent distinctiveness of the Splenda trade dress when we consider the trade dress as a whole."In the first round of the litigation, Padova refused to issue any injunction, finding that McNeil Nutritionals had failed to prove that consumers wereNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744748almnews/744748CLEVELAND (AP) -- A suburban Cleveland man won a lawsuit against a former employer he claimed fired him and later doctored his employment record to justify it.A Cuyahoga County, Ohio, jury gave ##-year-old Ronald Luri a $##.# million verdict from the Republic Services Inc. waste-collection company.Luri#;s lawyer said it is the largest verdict in the state#;s...history.Luri said his bosses wanted him to fire three older employees, all about ## years old. Luri said he feared the company could face a lawsuit for age discrimination and refused.In turn, Luri#;s bosses fired him, he claimed in county court.Luri#;s attorneys said Republic retaliated and...retaliated and forged documents critical of his job performance. The jurors said they were especially dismayed by testimony of evidence-tampering."We wanted to send a clear message that this was unjustly done and that they tried to ruin his career," jury foreman Brian Wildman said.NewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744747almnews/744747generic drugsVerizon settles lawsuit over termination feesATLANTA -- After eight years of litigation, The Coca-Cola Co. will pay $###.# million in cash to settle a securities fraud class action brought in #### by Coke shareholders.The Atlanta-based company will pay shareholders who bought Coke common stock between Oct. ##...notice filed on July # in U.S. district court in Atlanta.The suit alleged that former Coke executives in the late ####s engaged in a massive securities fraud based on a practice known as "channel-stuffing."The practice allegedly involved pressuring soft drink bottlers into buying at least $### million worth of excess concentrate syrup to bolster sales artificially...at least $### million worth of excess concentrate syrup to bolster sales artificially. The goal was to mask faltering Coke revenues.COLUMBIA, S.C. (AP) -- A federal judge on July # ordered a drug manufacturer to pay $## million in connection with fraud.U.S. District Judge Joseph F. Anderson Jr. fined Leiner Health Products LLC $# million...on expiration dates for its medications, South Carolina U.S. Attorney Walt Wilkins said.The now-bankrupt Leiner, based in Carson, Calif., is one of a few major companies that produce off-brand over-the-counter medications like pain relievers, antacids and decongestants.The Food and Drug Administration suspended operations atNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744746almnews/744746BUSINESS LAWCoke settles fraud litigation for $###MATLANTA -- After eight years of litigation, The Coca-Cola Co. will pay $###.# million in cash to settle a securities fraud class action brought in #### by Coke shareholders.The Atlanta-based company will pay shareholders who bought Coke common stock between Oct. ##...notice filed on July # in U.S. district court in Atlanta.The suit alleged that former Coke executives in the late ####s engaged in a massive securities fraud based on a practice known as "channel-stuffing."The practice allegedly involved pressuring soft drink bottlers into buying at least $### million worth of excess concentrate syrup to bolster sales artificially...excess concentrate syrup to bolster sales artificially. The goal was to mask faltering Coke revenues.Manufacturer fined $##M over dodgy generic drugsCOLUMBIA, S.C. (AP) -- A federal judge on July # ordered a drug manufacturer to pay $## million in connection with fraud.U.S. District Judge Joseph F. Anderson Jr. fined Leiner Health Products LLC $# million...on expiration dates for its medications, South Carolina U.S. Attorney Walt Wilkins said.The now-bankrupt Leiner, based in Carson, Calif., is one of a few major companies that produce off-brand over-the-counter medications like pain relievers, antacids and decongestants.The Food and Drug Administration suspended operations atNewsALM Research (News)Jul 14, 2008http://www.alacrastore.com/storecontent/almnews/744677almnews/744677Sanders, whose practice includes intellectual property issues, said he will continue to monitor the bill because he has U.S. clients with businesses in Canada, as well as Canadian clients. If the proposed