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Kaye Scholer LLP

Kaye Scholer Wins Appeal of Top Defense Verdict
The California Court of Appeal unanimously affirmed the judgment in favor of our client Novartis Consumer Health, Inc. in O'Neill and Lutz v. Novartis Consumer Health, Inc. after a four-month jury trial involving two plaintiffs who claimed they suffered strokes from products containing phenylpropanolamine (PPA). The Court found that the jury could properly consider the FDA's action or nonaction in determining whether the drugs were safe and that the standards in California for determining the admissibility of new scientific techniques did not apply to limit the defense challenge to the conduct of a published, peer-reviewed study at the heart of plaintiffs' case. The dual trial verdicts were recognized by the National Law Journal as one of the top 10 defense verdicts of 2004. The team responsible for the appellate victory includes Randolph Sherman, Aton Arbisser (who argued the appeal), Jan Dodd, and Joshua Stambaugh.

02-27-2007

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Jones Day, P.C.

Sixth Circuit Affirms Summary Judgment For R. J. Reynolds, Ruling That RJR’s Share-Based Discount Incentive Program Did Not Violate The Robinson-Patman Act
in Smith Wholesale Co., Inc. v. R.J. Reynolds Tobacco Co., Case No. 05-6053 (6th Cir. Feb. 27, 2007) ("Smith"), the Sixth Circuit affirmed the district court's grant of summary judgment to R.J. Reynolds Tobacco Company ("RJR") on a claim by eighteen wholesalers that RJR’s share-based discount incentive program violated the Robinson-Patman Act (the "Act"). The Sixth Circuit held that RJR offered its market share discounts "to all wholesalers using a non-discriminatory formula" (Slip Op. at 24), and that RJR's prices were therefore functionally available. The Court rejected "plaintiffs' invitation to re-engineer" RJR's program "to make it more reasonable for some participants." (Id. at 22.) Tracking closely the positions urged by Jones Day on behalf of RJR, the Court clarified that the functional availability doctrine is not an affirmative defense, but instead negates an essential element of a plaintiff's claim, i.e., the existence of a discrimination in price, and that, particularly following the Supreme Court's decision in Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006), courts must construe the Act consistent with the antitrust laws' primary goal of addressing conduct that threatens to injure inter-brand competition.

In Smith, the wholesalers charged that RJR's wholesale program, which granted higher discounts and rebates to wholesalers willing to devote a certain percentage of their business to the promotion and sale of RJR savings (i.e., discount) brands – and even higher discounts and rebates to those willing to devote even higher percentages to those brands – violated the Act. The wholesalers argued that RJR's higher level discounts and rebates were not "functionally available" to them because their retail customers primarily sold to lower income consumers who "demanded" cigarettes priced at a lower level than any brand available from RJR. Arguing that their role was to fill orders, not influence purchasing decisions, the wholesalers claimed that it was "impossible" (as they described it in the Complaint) for them to meet the percentage of their savings brand sales required to qualify for RJR's higher level discounts and rebates. The Sixth Circuit flatly rejected that assertion, finding that "[t]he capacity of plaintiffs to qualify for the [wholesale program's] best discount was a matter of marketing strategy and brand prioritization, a choice inherent and unavoidable in multi-brand incentive programs." (Slip Op. at 24.) In short, the Sixth Circuit accepted the position urged by Jones Day that the Act did not bar RJR from using share-based incentive targets to influence its customers' marketing behavior in favor of RJR's brands.

In upholding summary judgment for RJR, the Sixth Circuit ruled that the Robinson-Patman Act does not protect a customer from having to make difficult choices. So long as that choice is available to, and made known to, all competing customers, the Act is not violated, and the Sixth Circuit recognized exactly that in holding that "the Robinson-Patman Act neither ensures success nor excuses purchasers from making difficult decisions about which competing brands to carry, market or promote." (Slip Op. at 16; see also id. at 10.) The wholesalers claimed the "choice" presented by RJR's wholesale program was effectively no choice at all "because most retailers prefer to buy their stock from a single distributor, [and] if plaintiffs curtail the sale of fourth-tier cigarettes, their customers will take their entire business elsewhere" (id. at 19), but the Sixth Circuit found "no evidence that anything other than plaintiffs' marketing decisions impacted their ability to obtain the . . . best prices [from RJR]. * * * Plaintiffs could alter their sales mix at any time so as to qualify for the varying discount levels." (Id. at 22.)

The Sixth Circuit thus concluded that RJR's lower prices were "functionally available" to the plaintiffs, and, as a result, there was neither price discrimination nor any violation of the Act.

Tom Demitrack successfully argued the appeal to preserve the summary judgment that he, Bob Walker, Michelle Fischer, Eric Berlin, and David Debord had secured for RJR.

02-27-2007

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Jenner & Block LLP

Listrom Addresses Corporate Counsel on Tort Liability for Data Security Breach at ABA Seminar
Jenner & Block Partner Linda L. Listrom addressed recent developments affecting corporate liability for failure to protect the confidentiality of personal information collected or stored within a company’s databases in a session entitled, ““Data Security Breach – Claims and Defenses When Personal Information Gets Loose,” at the 25th annual American Bar Association Section on Litigation Committee on Corporate Counsel CLE Seminar.

During mock arguments concerning a hypothetical case involving a data security breach, Ms. Listrom presented arguments on behalf of 30 plaintiffs whose credit card information had been compromised when the defendant company’s vendor suffered a cyber attack. Alleging that the defendant breached its general tort duty of care to the plaintiffs to ensure the security of the systems used by its vendor, Ms. Listrom disputed the various claims set out in the defendant's motion for summary judgment.

Ms. Listrom also joined a panel of prominent attorneys from across the country for a discussion on this emerging area of law. “With so much identity theft, it is not surprising that there are now several pending cases where plaintiffs are attempting to hold companies liable for failure to protect their confidential financial information," said Ms. Listrom.

Among other things, the panelists debated the claim that certain companies that maintain databases encompassing sensitive personal duty owe an affirmative duty of care to safeguard the confidentiality of stored information. According to Ms. Listrom, this affirmative duty may stem from a company’s routine dealings or from its voluntary assumption of the duty through its representations or services rendered.

The panel also addressed the applicable standard of care in these cases and the significant obstacles plaintiffs may face in trying to demonstrate proximate cause and an actionable injury in data security breach cases.

“Identity theft and data security has become a growing concern for corporations that maintain databases encompassing sensitive personal information,” Ms. Listrom concluded. “While there are still many unresolved questions regarding the extent of a company’s affirmative duty to protect consumer data, corporate counsel must be aware of their potential liability for data security breaches.”

The ABA’s 2007 Committee on Corporate Counsel CLE Seminar took place on February 15-18 at Amelia Island, Florida. Held jointly with the ABA’s Business Torts Committee, Minority Trial Lawyer Committee, and Women Advocate Committee, the seminar addressed a variety of topics tailored to the needs and issues of corporate in-house counsel, and featured industry leaders from Wal-Mart, Shell, Monsanto, Dupont, Waste Management and other companies.

Ms. Listrom Co-Chairs the Firm’s Defense and Aerospace Industry Practice and is a member of the Firm’s Litigation Department and Business Litigation Practice. She currently serves as a Co-Chair of the ABA Section of Litigation’s Trial Evidence Committee.

02-27-2007

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Jaeckle, Fleischmann & Mugel, LLP

Michael D. Mulloy Joins Jaeckle Fleischmann's Intellectual Property Practice Group
Jaeckle Fleischmann & Mugel, LLP, a law firm with offices in Rochester, Buffalo and Amherst, New York, and Phoenix, Arizona, is pleased to announce that Michael D. Mulloy has joined Jaeckle Fleischmann as an associate in the Firm's Intellectual Property practice group. Mr. Mulloy will practice from the Firm's Rochester office.

Mr. Mulloy is a registered patent attorney and has extensive experience in the preparation and prosecution of patent applications, patentability searches and opinions and other related searches with an emphasis in electrical engineering. He has also successfully prosecuted several plant patents for asexually reproduced plant life cultivars. Mr. Mulloy received a B.S. in Electrical Engineering from Clarkson University and a J.D. from Syracuse University, College of Law.

Prior to earning his law degree, Mr. Mulloy served as an Electrical Engineer for Acushnet Company (Titleist Golf Balls), Polaroid Corporation and Kimberly-Clark Corporation. Mr. Mulloy has over ten years experience in the design and programming of industrial equipment and integrated manufacturing system controls, including robotic servo motion controls and associated mechanical elements, AC and DC electrical motor drive systems, programmable logic controllers, instrumentation and process control systems, machine vision systems, sensors, production data acquisition systems, facilities equipment control and monitoring systems and pneumatic systems.

Jaeckle Fleischmann & Mugel, LLP is a full-service business law firm with more than 80 legal professionals practicing from offices in Rochester, Buffalo and Amherst, NY and Phoenix, Arizona. The Firm's clients include Fortune 500 companies, publicly and privately held businesses, financial institutions, governmental entities, universities, traditional and high tech start ups, as well as individual business owners.

02-27-2007

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Howard Rice Nemerovski Canady Falk & Rabkin, P.C.

Howard Rice Promotes Five To Director And One To Special Counsel
Howard Rice Nemerovski Canady Falk & Rabkin announced today that Ellen Kaye Fleishhacker, Christopher Kao, Jin H. Kim, Anita K. Krug and Celia P. Van Gorder have been elevated to directors at the firm, effective March 1, 2007.

Chairman and Managing Director Lawrence Rabkin commented, "We have an incredibly talented group of attorneys joining the directorship this year, and each of them embodies the dedication, excellence and extremely high standards that define Howard Rice."

New Directors:
Ellen Kaye Fleishhacker focuses on real estate transactions, including private equity funds, purchases and sales, leasing, secured financings and the use and structuring of limited liability entities. She also specializes in advising families and individuals with complex business and personal legal needs.

Ms. Fleishhacker received her J.D. from University of California at Berkeley, Boalt Hall School of Law in 1996, where she was Managing Editor of the California Law Review. She also holds an M.B.A. from University of California at Berkeley, Haas School of Business, which she completed in 1996. In 1989, Ms. Fleishhacker graduated with a B.A. with high honors and Phi Beta Kappa, also from University of California at Berkeley.

Christopher Kao represents clients in complex business and commercial litigation. He also specializes in intellectual property disputes, including patent and copyright cases.

Mr. Kao graduated cum laude with a J.D. from Harvard Law School in 1999, where he was President of the Harvard Journal on Legislation. He graduated magna cum laude with a B.A. from Dartmouth College in 1996. Mr. Kao was a law clerk for Judge Carol B. Amon, U.S. District Court, Eastern District of New York.

Jin H. Kim is a member of the firm's Litigation Department. She specializes in securities litigation and regulatory and disciplinary investigations and proceedings brought by the SEC, NASD and NYSE. Ms. Kim also represents companies in intellectual property matters, including trademark and anti-counterfeiting litigation.

Ms. Kim earned a J.D. in 1999 from University of California at Berkeley, Boalt Hall School of Law, where she was the Articles Editor of the California Law Review. She also received an M.A. in 1996 and a B.A. in 1994, both from University of California at Berkeley. Ms. Kim was a law clerk for Judge Jane Roth, United States Court of Appeals for the Third Circuit.

Anita K. Krug is a member of the firm’s Investment Management and Private Funds Group. Her practice focuses on advising investment management firms on securities law compliance and other regulatory matters, structuring and forming private pooled investment entities (so-called "hedge funds") and negotiating investment advisory arrangements.

Ms. Krug received her J.D. cum laude from Harvard Law School in 1997, where she was Articles Editor of the Harvard Law Review. She earned an M.A. and a Ph.D. from Harvard University in 2000, where she was a Jacob K. Javits Fellow. A Fulbright Scholar in the early nineties, Ms. Krug earned her B.A. from Kansas State University in 1991, graduating summa cum laude and Phi Beta Kappa. She was a clerk for Judge Norman H. Stahl, United States Court of Appeals for the First Circuit.

Celia P. Van Gorder focuses on merger and acquisitions and other strategic transactions, as well as software licensing and services agreements. Ms. Van Gorder first joined the firm in 1997 and returned in January 2004. In the interim, she was Senior Corporate Counsel to Wind River Systems, Inc. (Nasdaq: WIND).

Ms. Van Gorder earned a J.D. in 1995 from Columbia Law School, where she was a Senior Editor of The Columbia Law Review, as well as a Stone Scholar. She graduated magna cum laude with an A.B. from Harvard University in 1990. Ms. Van Gorder was a law clerk for the Honorable Zita L. Weinshienk of the United States District Court for the District of Colorado.

The firm also announced that Stephanie W. Coutu has been elevated to special counsel, effective March 1, 2007. Ms. Coutu is vice chair of the Emerging Companies Group. Her practice focuses on the representation of emerging growth companies, venture capital, mergers and acquisitions and intellectual property transactions.

Ms. Coutu received her J.D. cum laude in 1997 from Boston University School of Law, where she was Editor of the Boston University Law Review. She graduated with a B.A. from University of California at Los Angeles in 1993.

02-27-2007

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Gibson, Dunn & Crutcher, LLP

Gibson Dunn Announces Annual Pro Bono Award Winners
Gibson, Dunn & Crutcher LLP is pleased to announce the firm's annual Frank Wheat Memorial Award recipients in recognition of outstanding pro bono work at the firm. The award is given to a Gibson Dunn case team and an individual attorney who displayed leadership and initiative, obtained significant results and served as a source of inspiration to others through their pro bono work.

This year, the team award will be presented to a team of associates in the firm’s Orange County office for their work on behalf of low-income tenants of a dilapidated apartment complex in Santa Ana, Calif., and the individual award will be presented to a former New York associate for his work in facilitating legal guardianships for people with mental retardation and developmental disabilities. The recipients of the team award will receive $5,000 to be donated to a pro bono organization of their choice.

In addition, Gibson Dunn has increased its annual number of pro bono hours by 81 percent, to 64,949 donated attorney hours in 2006.

"We are very proud of the recipients of this year’s Frank Wheat Memorial Award," said Scott Edelman, Chair of Gibson Dunn’s Pro Bono Committee. "We have a long tradition at Gibson Dunn of giving back to the community, one best exemplified by the work of this year's award winners. Their dedication and commitment serves as an example for all of us."

"We are also proud of our collective efforts as a firm, which resulted in a substantial increase in our pro bono hours this year," added Edelman. "With this achievement, we have met Pro Bono Institute’s Pro Bono Challenge, which asks law firms to donate 60 hours per attorney to pro bono work, in the first full year since we signed the Challenge. We could not have accomplished this without the support, commitment and enthusiasm of our lawyers.

02-27-2007

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Bracewell & Giuliani LLP

America's Top Companies Name Bracewell & Giuliani as "Go-To Law Firm"
Bracewell & Giuliani LLP named as a "Go-To Law Firm" based on an American Law Media and Corporate Counsel survey of top general counsel. Results will appear in Fortune magazine, May 2007.

General counsel of the nation's largest corporations listed their top outside counsel in six key legal practice areas, including corporate transactions, intellectual property patent counseling, labor and employment and litigation.

Bracewell was identified by the following U.S. companies as their go-to law firm in these categories.

Corporate Transactions
Constellation Energy Group Inc.

Intellectual Property Patent Counseling
CenterPoint Energy Inc.

Labor and Employment
Sysco Corporation
Valero Energy Corporation

Litigation
Sysco Corporation
Valero Energy Corporation

02-27-2007

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