Law Firm News

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Law Firm News

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Hunton & Williams, LLP

Fuhr and Carlson author article on corporate liability under the securities law
Hunton & Williams partners Ed Fuhr and Curtis Carlson were published in the February 12 issue of Daily Deal/The Deal. In "Scienterology," the two lawyers discuss the question: "If a corporate officer makes a statement he reasonably believes is true, but a former sales employee believes is false, has the corporation acted with an intent to defraud investors?"

To answer this question, they point to a closely watched appeal by Dynex Capital Inc. and Merit Securities Corp. in the 2nd Circuit Court of Appeals, summarizing: "The doctrine of collective scienter has been rejected for sound legal and practical reasons by every federal appeals court that has expressly considered it. The 2nd Circuit ought to expressly reject it as well.

02-12-2007

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Foster Pepper PLLC

Recent Developments Under The Public Records Act
The Court of Appeals (Division I) has held the nearly $300,000 in penalties ($15 a day) the trial court ordered a local government to pay for its mishandling a Public Records Request was too lenient. See Yousoufian v. King County, No. 57112-5-1 (February 5, 2007). The Court of Appeals instructed the trial court to use tort standards of culpability ranging from good faith negligence to bad faith willful misconduct when determining where on the $5 to $100 a day statutory range this penalty should fall. The court found that it was undisputed the local government had been “grossly negligent.” As a result, the Court of Appeals determined that a $15-per-day penalty was insufficient. The decision fills a gap in Washington law left by the Supreme Court’s prior decision in the case where the Supreme Court held the “existence or absence of [an] agency’s bad faith is the principal factor” trial courts should consider when deciding penalty amounts.

This decision stems from public records requests Armen Yousoufian made to the local government almost 10 years earlier. The trial court had originally imposed a $5-a-day penalty,; however, on appeal the State Supreme Court rejected this penalty as too lenient, noting the minimum penalty should be reserved for situations where a public entity acts in good faith, not when the entity is grossly negligent. The trial court subsequently increased the daily penalty from $5 to $15, which Yousoufian appealed as inadequate in this latest decision. Based on the trial court’s complaints, the Court of Appeals agreed the Supreme Court’s blanket bad faith standard did “little more than suggest what the two poles are on the penalty range” and provided no guidance “in locating violations that call for a penalty somewhere in the middle of the” $5 to $100 a day statutory penalty range.

In creating a new standard, the Court of Appeals first evaluated (and rejected) the factors proposed by Justice Sanders in his Supreme Court dissent. Instead, the Court of Appeals used the Washington Pattern Jury Instructions (WPI) as a guide for measuring penalties. The WPI define levels of culpability, from negligence to willful misconduct, which the trial courts can use when applying the facts of an agency’s alleged bad faith. Under this new standard, the court explained that “instances where the agency acted with ordinary negligence would occupy the lower part of the penalty range. Instances where the agency’s actions or inactions constituted gross negligence would call for a higher penalty than ordinary negligence. Finally, instances where the agency acted willfully and in bad faith would occupy the top end of the scale.”

While the Court of Appeals decided not to attach monetary values to the WPI standards, the decision appears to provide more concrete guidelines and may potentially result in higher penalties for infringing agencies.

State Audits Planned For Public Records Act Compliance

In 2005, the legislature enacted a significant overhaul of the Public Records Act, adding several new requirements, and recodifing the Act at chapter 42.56 RCW. With the passage of Initiative 900, the state auditor is planning performance audits, which will include audits of local governments’ compliance with the Public Records Act. The goal of these audits is to improve government transparency consistent with the Act.

The express objectives of these audits will be to:

* Evaluate compliance with public records laws
* Evaluate response times to public records requests
* Control costs charged to citizens for copies of public records

The auditor is seeking to ensure local governments maintain effective compliance with public records laws and improve their timeliness in their responses to public records requests. More detailed information about the full scope of the performance audits can be found on the auditor’s website at: http://www.sao.wa.gov/PerformanceAudit/default.asp.

The 2005 legislation made changes to exemptions, added new requirements for the timely production of documents, added new guidelines for an agency’s public records act rules and the appointment of a public records officer, changed the statute of limits and added a new venue provision.

Attorney General Bill May Expand Liability Under The Public Records Act

Attorney General Rob McKenna has submitted legislation that has the potential to expand governmental liability under the Public Records Act (chapter 42.56 RCW). House Bill 1446 (and companion Senate Bill 5436) would make it clear a requester can file suit if an agency fails to respond to a request at all. The bill goes on, however, to add the statute of limits runs from “any other violation of this chapter”, implying that a cause of action exists for any violation of the Act. This would increase potential exposure for both State agencies and local governments. It has already been voted out of committee in the House and Senate.

The Attorney General’s proposal makes two changes to the statute of limitations provision. First, it clarifies an ambiguity by codifying what everyone assumed — that an agency violates the act by doing nothing in response to a request. RCW 42.56.520 already requires some response by an agency within five days, so this change does not add any new right. The second change would potentially create a new basis for liability. Previously, the statute only allowed for lawsuits based on the failure to provide records and for providing unreasonable time estimates for responding. RCW 42.56.550. News media interests urged the legislature to expand liability in 2005 by expressly applying the penalty and attorney-fee provisions to lawsuits seeking “to enforce any of the requirements” of the Public Records Act. That proposal was rejected, particularly after sponsors stated that this would allow for lawsuits when, for example, agencies fail to “provide the fullest assistance” or fail to keep an index. The implication of the AG’s new proposal, by applying the statute of limitations to “any other violation of this chapter”, could be there is a right to sue for any other violation — a substantive change from the current statute that would potentially increase exposure for both State agencies and local governments.

Please contact Ramsey Ramerman (206-447-4674), chair of the Public Records Response Squad, or any member of Foster Pepper’s Municipal Group, if you have any questions.

Public Records Response Squad

* Ramsey Ramerman, Chair (school districts, housing authorities)
* Rosa Fruehling-Watson (labor and employment)
* Katie Carder (electronic records)
* Sven G. Peterson (health care)
* Maureen Wallace

02-12-2007

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Dechert LLP

Corporate and Securities Lawyer Derek M. Winokur Joins Dechert LLP
Dechert LLP announced today that Derek Winokur has joined the firm as a partner in the corporate and securities group. He is based in the firm's New York office, and was previously at Cleary Gottlieb Steen & Hamilton LLP.

Winokur focuses on public and private mergers and acquisitions representing private equity sponsors as well as strategic buyers, special committees and management, both domestically and internationally. His experience spans a wide range of industries including technology, telecom, pharmaceutical and manufacturing.

"Derek has an impressive portfolio of deals involving complex M&A transactions," said Henry Nassau, partner and co-chair of Dechert's corporate and securities group. "His successful track record of counseling clients through such high-stake transactions combined with his keen business sense is an asset to the group. We welcome him to the firm."

Dechert was recognized as a top M&A law firm in the year-end league tables of The American Lawyer Corporate Scorecard, Corporate Control Alert, Thomson Financial, Bloomberg and Mergerstat, and one of the top law firms in private equity according to the annual league tables of The American Lawyer Corporate Scorecard, Private Equity Analyst, and mergermarket.

"Dechert's M&A and private equity lawyers have a well deserved reputation for providing the highest quality legal services with strong commercial instincts," said Winokur. "My experience in advising on complicated M&A transactions, combined with my interest and focus on the business aspects of the transaction are a great match with the Dechert approach, and I look forward to helping the firm enjoy continued growth and success."

Winokur is a graduate of Cornell University (B.A. History, 1991) and the University of Pennsylvania Law School (J.D., magna cum laude, 1997), where he was articles editor of the University of Pennsylvania Law Review. He is admitted to the Bar of the State of New York.

02-12-2007

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Clausen Miller PC

CM Seeks U.S. Supreme Court Determination in Product Liability Actions
Clausen Miller Appellate Practice Group partner Melissa Murphy-Petros has recently sought U.S. Supreme Court review and determination of which personal jurisdiction standard applies in product liability actions where a product defendant’s minimum contacts with the forum state are sought to be established through the placement of the product into the stream of commerce. In Tokai Corporation v. Saia, et al., CM is asking the high court to resolve a recurring national conflict in federal and state courts as to which test should be applied: the “stream of commerce” test under which a product defendant is subject to jurisdiction in any state in which its product is found regardless of defendant’s role in getting it there, or the “stream of commerce plus” test under which a product defendant must take some affirmative action regarding the placement of the product in the forum state before jurisdiction can be found. Melissa has advanced the defense position that the “stream of commerce plus” test should be adopted as the most fair and equitable method of determining where a product defendant may be sued. A copy of CM’s petition is on our website, and we can also send you a hard copy upon request.

02-12-2007

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Bullivant Houser Bailey

Bullivant hires Director of Professional Development, Recruiting and Diversity
The law firm of Bullivant Houser Bailey PC announced today that Sandra G. Gronfein has joined the firm as Director of Professional Development, Recruiting and Diversity.

Gronfein previously served as the manager of Lawyer Recruiting and Professional Development at Stoel Rives LLP. At Bullivant, her responsibilities include the development and implementation of an attorney professional development and mentoring program, leading the firm’s recruiting efforts and overseeing the firm’s diversity initiatives.

Gronfein earned her J.D. from the University of California, Hastings College of the Law, and her A.B. from Stanford University. She is a member of the Washington State, King County, and American Bar Associations; the State Bar of California (on inactive status); the National Association for Law Placement; SALRA (Seattle Area Legal Recruiting Administrators); and OLRA (Oregon Legal Recruiting Administrators).

02-12-2007

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Baker Botts LLP

Grace Returns to Baker Botts as Partner in Government Relations
James Grace Jr., who has developed a broad range of government relations expertise in handling federal, state and local issues, has returned to Baker Botts L.L.P. as a partner.

“Jim’s wealth of experience in the complex world of government relations will further strengthen this key practice area for the firm,” said Baker Botts Managing Partner Walt Smith. “Rejoining the firm at this time means Jim will be spending considerable time in Austin during the current legislative session. He will also be working with clients on local and national issues as we continue to grow this practice area in our Houston office.”

Grace was an associate with Baker Botts for seven years, starting in 1993. Prior to that, he served as a law clerk to the Honorable Samuel B. Kent of the United States District Court for the Southern District of Texas. Texas Super Lawyers has recognized him as a “Rising Star” for three consecutive years, starting in 2004.

Before returning to Baker Botts on February 1, Grace was a shareholder at Winstead Sechrest & Minick P.C. He also worked at CenterPoint Energy, Inc., as director of Texas State Relations in the government affairs department, and senior counsel in the company’s legal department.

Grace earned his Juris Doctor with honors (cum laude) from the University of Houston Law Center, where he served as articles editor on the Houston Law Review. He earned his undergraduate degree in history from the University of Notre Dame. He was named an Outstanding Young Houstonian in 2006 and is currently a member of the board of directors of the Texas Lyceum.

02-12-2007

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Weil, Gotshal & Manges, LLP

Weil Gotshal Advises Providence Equity Partners and the Carlyle Group on the Acquisition of APN News and Media Limited
International law firm Weil, Gotshal & Manges is advising Providence Equity Partners and The Carlyle Group as part of the bidding consortium comprising Providence, Carlyle and Independent News & Media PLC, on their bid for APN News & Media Limited, Australia's fourth-largest media company, in a deal valuing APN at A$3.8 billion (US$2.95 billion).

The consortium raised their original offer by 5 cents per share to A$6.10 to acquire the 58% not already held by Independent News & Media PLC through a scheme of arrangement. Dublin-based Independent News and Media, which publishes 175 newspaper and magazine titles worldwide, will reduce its stake in APN News and Media to 35% from 42%, while Providence and Carlyle will hold 37.5% and 27.5%, respectively.

The Weil Gotshal team was led by corporate partner Jonathan Wood, assisted by corporate associate James Swan. Tax advice was provided by New York and Washington partners Marc Silberberg and David Bower, respectively.

"We are delighted to have worked with Providence and Carlyle on this transaction which is one of the first to seize upon opportunities created by recent changes to Australian laws on ownership of media assets. The international flavour and complexity of the transaction played to our core strengths in private equity and helped us cement our relationship with Providence's European deal team and to get to know Carlyle a little better." (Jonathan Wood).

02-12-2007

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