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Fetured Job Of the Day
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Corporate/Securities Attorney with 3-6 years of capital markets experience

Los Angeles office of our client seeks corporate and securities attorn...
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Date Posted: May 19, 2018

Employer:   BCG Attorney Search

Salary: Not Specified

Nixon & Peabody, LLP > Firm Details


New York
437 Madison Avenue, 
New York City, New York - 10022



Other Offices

+New York +Orange 
+Suffolk +Erie 
+Nassau +Albany 
+Monroe +San Franci... 
+District O... 

Staff Size : 127
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This is a full-service law firm with more than 600 attorneys working in 3 major practice areas. It offers services in complex multijurisdictional and international matters involving antitrust, corporate and business law, bank regulatory law, bankruptcy, commercial lending, commercial litigation, employee benefits and labor and employment, environmental, estate planning and administration, franchising, healthcare, housing and community development and syndication, loan enforcement, project finance, public finance, public utilities and energy, real estate, securities, taxation, and technology and intellectual property.

Law Firm Salaries

Firm location 1st Year 2nd year 3rd Year 4th Year 5th Year 6th Year 7th Year 8th Year Summer Associate
New York $145,000 N/A N/A N/A N/A N/A N/A N/A $2,800/week
Boston $135,000 N/A N/A N/A N/A N/A N/A N/A $2,600/week
Washington $135,000 N/A N/A N/A N/A N/A N/A N/A $2,600/week
San Francisco $135,000 N/A N/A N/A N/A N/A N/A N/A $2,600/week
Stamford $125,000 $135,000 $150,000 N/A N/A N/A N/A N/A $2,400/week
All Southeastern offices $115,000 $120,000 $125,000 $132,000 $142,000 $155,000 $165,000 N/A $2,200/week
All other California Offices $125,000 $135,000 $150,000 N/A N/A N/A N/A N/A $2,400/week

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On August 11, 2006, the Securities and Exchange Commission released final rules regarding the disclosure requirements for executive and director compensation, related party transactions, director independence, and other corporate governance matters. The final rules are designed to provide shareholders with a clearer and more complete picture of director and officer compensation. They are also designed to add transparency to key financial relationships among companies and their executive officers, directors, significant shareholders, and their respective immediate family members. The final rules are available on the Commission’s website.1 We will be releasing a number of Securities Law Alerts that address the changes required by the new rules and highlight the actions you should consider taking now to prepare for next proxy season. This Securities Law Alert will review the amendments to the Form 8-K disclosure requirements, which will be effective sixty days from publication of these rules in the federal register, or approximately mid-October.

Updates to Items 1.01, 1.02 and 5.02 and the General Instructions of Form 8-K
The final rules amend Items 1.01 and 5.02 of Form 8-K (and by reference, Item 1.02 of Form 8-K). These significant changes concern disclosure of material compensation plans, contracts, or arrangements, including plans relating to options, warrants, or rights, retirement, or deferred compensation, or bonus, incentive, or profit sharing plans between a company and a named executive officer. The Commission adopted these modifications to Form 8-K in light of the increased frequency, since the effectiveness of the extensive Form 8-K reforms in August 2004, of disclosure under Item 1.01 and 1.02 of director and officer compensation that falls short of the “unquestionably or presumptively material” standard the Commission intended for the expanded Form 8-K disclosure items.2 The amendments to Form 8-K eliminate employment compensation agreements from the scope of Item 1.01, and instead expand the disclosure required by Item 5.02 to cover only those compensation agreements with named executive officers3 that are clearly unquestionably or presumptively material.

The amendments to Form 8-K:

Add a new Item 5.02(e) to Form 8-K that requires the disclosure of the adoption, material modification or amendment of, or material grant or award that is made or materially modified under any compensatory plan, contract or arrangement in which a principal executive officer, principal financial officer, or named executive officer participates. Disclosure under this new Item 5.02(e) is required whether or not the occurrence is in connection with a triggering event specified in Item 5.02 (the appointment, retirement, resignation or termination of a covered officer or director). However, grants or awards under or modifications made to these agreements do not have to be disclosed in a Form 8-K if the awards, grants, or modifications thereto are consistent with the original terms of the agreement, and the award or grant is disclosed the next time Item 402 reporting is required. For example, if a named executive officer enters into an employment agreement that contemplates future option grants, such grants would not have to be disclosed in a Form 8-K at the time of the grant so long as this information is provided the next time Item 402 information is required (i.e. a company’s annual proxy statement).
Add a new Item 5.02(f) to Form 8-K requiring disclosure of the payment, grant or award of a named executive officer’s salary or bonus for the most recently completed fiscal year, if that information was omitted from the Summary Compensation Table because it was not available at the time of filing the company’s Item 402 disclosure in its annual report or proxy. Such Form 8-K also must include a new total compensation figure for the named executive officer, based upon information that was previously provided in the Summary Compensation Table.4
Add an instruction to Item 5.02 of Form 8-K that clarifies that disclosure regarding compensatory arrangements is not required under Item 5.02 to the extent that such arrangements do not discriminate in favor of executive officers or directors and are generally available to all salaried employees.
Expand the persons to which the retirement, resignation or termination provisions of Item 5.02(b) apply to include all named executive officers for the company’s previous fiscal year in addition to the persons to whom Item 5.02(b) previously applied: principal executive officer, president, principal financial officer, principal account officer, principal operating officer or any person performing similar functions (referred to here as simply, “covered officers”), and directors.
Expand the disclosure presented in connection with the appointment of a covered officer or director (except by shareholder vote) under Items 5.02(c)(3) and new Item 5.02(d)(5) beyond a brief description of the material terms of any employment agreements to also require a brief description of any material plan, contract or agreement to which a covered officer or director is a party or participant that is entered into or materially amended in connection with their appointment.
Add an instruction to Form 8-K permitting companies to omit the currently required Item 1.01 heading in a Form 8-K that also discloses information under any other heading so long as the disclosure mandated by Item 1.01 is included within the form.
Extension of Limited Safe Harbor under Section 10(b) and Rule 10b-5 to Item 5.02(e) of Form 8-K and Exclusion of Item 5.02(e) from Form S-3 Eligibility Requirements
The Commission recognized that new Item 5.02(e) requires companies and their counsel to make rapid materiality judgments with respect to whether a particular compensation arrangement with a principal executive officer, principal financial officer, or named executive officer requires disclosure. As a result, the Commission expanded the safe harbors for Form S-3 eligibility and liability under Section 10(b) of the Exchange Act and Rule 10b-5 to new Item 5.02(e). Therefore, if a company does not timely file a Form 8-K to report a compensation arrangement under Item 5.02(e), it will not lose Form S-3 eligibility so long as it discloses this information in its next periodic report on Form 10-K or Form 10-Q.


2.Much of this increased disclosure is the result of the incorporation of the Item 601(b)(10)(iii) standards from Regulation S-K for filing employment compensation agreements into Form 8-K, Items 1.01 and 1.02. The final rules uncouple Item 601(b)(10)(iii) from the Form 8-K disclosure requirements.

3.The amendments define the term “named executive officers” in a revised Item 402(a)(3) of Regulation S-K to include the principal executive officer, the principal financial officer and the three most highly compensated executive officers other than the principal executive officer and principal financial officer.

4.Prior to the addition of new Item 5.02(f) to Form 8-K, if a named executive officer’s salary or bonus for the most recently completed fiscal year was not available at the time of filing a company’s annual report or proxy, then such amounts were generally not reported until the filing of the annual report or proxy for the following fiscal year.

The U.S. District Court for the District of Columbia has dismissed a putative class action against various dairy producers in Mills v. Giant of Maryland.1 The court ruled that the plaintiffs’ claim that the producers failed to warn consumers about the potential dangers of lactose intolerance was preempted by federal law.

Alternatively, the plaintiffs’ claims (based on negligence and strict liability) were subject to dismissal for failure to state a claim. Because there was no duty to warn consumers about common food allergies, there was no duty to warn consumers about the potential dangers of lactose intolerance.

Food, Drug, and Cosmetic Act Expressly Preempts Claim
The defendants argued that the plaintiffs’ common law claims were precluded by the National Labeling & Education Act of 1990 (“NLEA”), which added Section 403A to the Federal Food, Drug, and Cosmetic Act (“FDCA”). Section 403A provides:

Except as provided in subsection (b), no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce – (1) any requirement for a food which is the subject of a standard of identity established under section 341 of this title that is not identical to such standard of identity or that is not identical to the requirement of section 343(g) of this title...2

Under 21 CFR 131, milk and cream are subject to a “standard of identity.” Defendants contended that any common law claim “would have the effect of mandating particular cautionary statements on milk labels...”3 The defendants argued that this runs “afoul” of the statute.4 The district court agreed, dismissing the plaintiffs’ complaint based on the express preemption clause in the FDCA.

Court Rejects Plaintiffs’ Argument Based on Bates v. Dow Agrosciences
The court rejected the plaintiffs’ argument, based on Bates v. Dow Agrosciences,5 that their common law claims were not preempted by section 403A of the FDCA.

The court explained that Bates involved a different federal statute, the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), and a different set of facts and circumstances.

Nothing in Bates categorically defeats defendants’ argument that plaintiffs’ claims are precluded by FDCA’s preemption clause. Rather, Bates underscores the need to pay close attention to the scope of the FDCA’s preemption clause and assists the court in framing the questions to be addressed: first, whether the duty imposed by the relief which plaintiffs seek is “a requirement for a food which is the subject of a standard of identity,” and second, whether this duty “is identical” to the labeling requirements of the FDCA.6

Here, the court answered both questions in the affirmative. Milk is subject to a standard of identity and the label mandated by the standard of identity has a distinct list of information that must appear on the label—“conspicuously absent from this list is a warning against the dangers of lactose intolerance.”7

The court also rejected the plaintiffs’ attempt to save their claims by arguing that a “safety” exception applies in this circumstance. The FDA has concluded that the risk of gastrointestinal symptoms similar to those experienced by the lactose intolerant does not implicate “safety” concerns, as defined by 21 CFR 170.3(i).8 Thus, there is no need to invoke the safety exception to Section 403A of the FDCA.9

Lastly, although the defendants raised implied conflicts preemption, the court declined to address the issue, as it had reached a decision on express preemption grounds. And, even if the FDCA did not preempt the state law claims, “plaintiffs’ complaint would nevertheless be dismissed as it failed to state a claim under District of Columbia law.

Primary Practice Areas

Antitrust, Class Actions, Corporate Governance & Regulatory, Corporate Transactions, Corporate Trust, Environmental, Equipment Finance, Estate Planning and Administration, Fda Regulatory, Financial Restructuring & Bankruptcy, Franchise & Distribution, Global Finance, Government Contracts, Government Investigations & White Collar Defense, Health Care, Immigration, Intellectual Property, International, International Arbitration, Labor & Employment, Litigation & Dispute Resolution, Private Equity, Products: Class Action, Trade & Industry Representation, Project Finance, Public Finance, Real Estate, Securities, Syndication, Tax.

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Dec 09,2010 USA-NY-New York City Summer Associate/Law Firm/New York City, New York

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Summer Program, Nixon Peabody, New York, NY. Applications are accepted from 2Ls and 1Ls. Salary: $3,100 per week.Firm Description:

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Summer Program, Nixon Peabody, Jericho, NY. Applications are accepted from 2Ls and 1Ls. Salary: $2,200 per week.Firm Description:

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Dec 09,2010 USA-NY-Rochester Summer Associate/Law Firm/Rochester, New York

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Summer Associate Program, Nixon Peabody, Rochester, NY. Applications are accepted from 2Ls and 1Ls. Salary: $1,825 per week.


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