Law Firm News

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Law Firm News

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Torys LLP

Christine Vogelesang Joins Torys' Toronto Office
Torys is pleased to announce that Christine L. Vogelesang has joined the firm’s Toronto office as a partner.

Christine’s practice focuses on securities registration and self-regulatory organization membership issues. She has extensive experience in obtaining registration in various categories of dealer and adviser under the provincial securities regimes across Canada. Christine has also helped clients obtain membership in such self-regulatory organizations as the Investment Dealers Association of Canada and the Mutual Fund Dealers Association of Canada.

02-08-2007

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Thomason, Hendrix, Harvey, Johnson & Mitchell, PLLC

Five Partners Named Among Tennessee’s “Super Lawyers”
Five Thomason Hendrix Partners were recently chosen as 2006 Mid-South Super Lawyers: Albert C. Harvey, J. Kimbrough Johnson, Jerry Mitchell, Kemper Durand, and Steve Vescovo. To be nominated for this distinction, lawyers must have been practicing five years. Once nominated by their peers, lawyers undergo a rigorous evaluation process, including peer evaluations, before being chosen for this honor. According to the publishers, only 5 percent of the lawyers in Tennessee are chosen to be “Super Lawyers.

02-08-2007

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Thomason, Hendrix, Harvey, Johnson & Mitchell, PLLC

Two Partners Named Among 150 Best Lawyers in Tennessee
Kemper Durand and Rehim Babaoglu were named among the 150 Best Lawyers in Tennessee in the January 2007 edition of the Business Tennessee magazine. Kemper Durand was named for his work in Criminal Defense Litigation, and Rehim Babaoglu was named for his work in Immigration. Each year, Business Tennessee ”polls leading attorneys, judges and corporate executives across the state and beyond to spotlight some of the brightest minds in Tennessee’s legal community” and then publishes the results of the polling in its magazine.

02-08-2007

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Smith Haughey Rice & Roegge

SAEZ JOINS SMITH HAUGHEY
Smith Haughey Rice & Roegge is pleased to announce that Maria T. Saez has joined the firm as an attorney in the firm’s Ann Arbor office. Maria will practice medical malpractice defense and employment law.

Maria received both her Bachelor of Science degree in Anthropology/Zoology and her Master’s of Social Work degree from the University of Michigan. She received her Juris Doctor, cum laude, from the University of Illinois, Urbana-Champaign where she was a Lincoln Scholar, Women’s Bar Association of Illinois Scholarship recipient, and notes editor for the Law Review. Maria’s previous legal experience includes serving as an associate at Neal, Gerber, & Eisenberg, LLP and as a Legal Advocate for Domestic Violence Project/SAFE House.

Maria is admitted to practice in the state courts of Michigan and Illinois, and the federal courts for the Eastern District of Michigan and the Northern District of Illinois. She is a member of the American Bar Association, State Bar of Michigan, and the Washtenaw County Bar Association.

02-08-2007

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Senniger, Powers, Leavitt & Roedel's, P.C.

Senniger Powers Secures Victory for Fleming & Company, Pharmaceuticals
Senniger Powers successfully defended its client, Fleming & Company, Pharmaceuticals in a lawsuit filed by Alliance Security Products, Inc. and Alliance Security International, LLC, both New York companies. The suit included claims of breach of contract, misappropriation of an idea/trade secret, and unfair competition and revolved around Fleming's product, ThyroShield, a liquid potassium iodide (KI) solution used to prevent thyroid cancer in children exposed to radiation.

Alliance originally approached Fleming in 2003 to discuss marketing Fleming's KI solution known as PIMA, but the two parties failed to agree on negotiations. Fleming went on to attain FDA approval and change the name of its KI product to ThyroShield.

In 2005, Alliance filed suit in the United States District Court for the Southern District of New York, claiming that Fleming used confidential business strategies revealed in the parties' negotiations to create and market ThyroShield. U.S. District Judge Lewis A. Kaplan, however, found Alliance's arguments unconvincing and on Jan. 29, 2007, Fleming was granted summary judgment dismissing the complaint.

Fleming has a long history with KI solutions. In 1968, Fleming began producing the KI solution PIMA for use as an expectorant, but later realized its potential for preventing thyroid cancer. In 1986, the company provided the product to those affected by the Chernobyl disaster, and later was awarded a government contract for stockpiling the solution near nuclear power plants.

Senniger Powers attorneys Keith Rabenberg, Mike Hartley, Sara Gillette, Robert Evans and Vince Keil were involved in the case and were instrumental to its successful outcome.

02-08-2007

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Mitchell Silberberg & Knupp LLP

Plan investment advisor rules increase employer obligations
For the first time this year, retirement plans fiduciaries can provide investment advice to participants and get an additional fee for doing so. Plan sponsors and fiduciaries that want to offer this service will have to satisfy new rules enacted as part of the Pension Protection Act of 2006 and Department of Labor guidance issued earlier this month. Prior to 2007, the provision of such advice for an additional advisory fee by a plan fiduciary would have resulted in a prohibited transaction under ERISA and the Internal Revenue Code.

Plan sponsors generally will not be liable for the advice offered to the participants; however, plan sponsors (or some other fiduciary appointed by them) will have substantial responsibility with respect to the appointment of the investment advisor and ongoing monitoring of its services. It is unclear just yet to what extent plans will offer this service. In some cases, plan sponsors may feel that the obligations associated with appointing and monitoring the investment advice provider are too onerous and decide not to offer the service.

Background

In recent years, it has become increasingly common for individual account plans, such as 401(k) plans, to provide participants with a choice of investment options and leave it to the participant to determine how his or her account is invested. Although these investment decisions will have a major impact on the amount of retirement income participants will receive, many plan participants lack the knowledge necessary to make informed decisions. As a result, employers and financial services companies that act as the plan fiduciaries sought changes in the law so that greater levels of investment advice could be provided to plan participants.

New law

Under the new law, a fiduciary investment advisor can receive an additional fee for providing investment advice to participants as to the allocation of his or her plan contributions among different investment options provided certain requirements are met including the following:

# Either the fees received by the fiduciary must not vary depending on the investment option selected or the advice must be provided through a computer model under an investment advice program.


# If the computer model is used, it must: apply generally accepted investment theories that take into account historic returns of different investment classes as well as the participant’s age, life expectancy, risk tolerance, retirement age and other personal information; use objective criteria; and operate without bias toward investments affiliated with the advisor.


# The arrangement with the investment advisor must be approved by another plan fiduciary who is unrelated to the investment advisor or the provider of any of the plan investment options.


# The arrangement must be audited to assure compliance with these requirements.


# Participants must receive detailed disclosure including: information on any relationship between the investment advisor and the investment options under the plan; past performance of the investment options; fees payable to the advisor and other information.


# The compensation paid to the advisor must be reasonable and the transaction costs must be at least as favorable as would apply under an arm’s length transaction.


# The appointment of the investment advisor and ongoing monitoring of the investment advisor’s performance are treated as fiduciary acts by the plan sponsor or other fiduciary that are subject to the prudence standards of ERISA.

Obligations of plan sponsors

This last requirement warrants special attention from plan sponsors, which in most cases will be doing the appointing and monitoring, and was fleshed out in the recent guidance from the DOL.

Plans are not required to offer these investment advice services. If the plan sponsor wishes to offer the service, the plan sponsor must prudently select and monitor the investment advice provider in order for the plan sponsor to avoid being liable for the advice provided. In making the decision whether this is a service they wish to offer to plan participants, plan sponsors should take into account their ongoing obligations with respect to appointment and monitoring of these advisors. (Although plan sponsors can designate other fiduciaries to handle the selection and monitoring process, in most cases the plan sponsor will bear this responsibility. Therefore, when I refer to the obligations of the plan sponsor below, I am also including the obligations of any fiduciary appointed by the plan sponsor to carry out these functions.)

The DOL prescribes the following process for the appointment of the investment advice provider:

# First, the plan sponsor must assess the provider’s qualifications, quality of services offered and reasonableness of fees charged.


# The process must avoid self-dealing, conflicts of interest or improper influence.


# The process should take into account the advisor’s experience and qualifications, the advisor’s registration in accordance with applicable securities laws, the willingness of the investment advisor to assume responsibility under ERISA and the extent to which the advice is based on “generally accepted investment theories.” To accomplish this, plan sponsors will need to understand the “investment theories” on which the advice provided will be based.


Then, as part of the ongoing monitoring process:

# Plan sponsors will be expected to monitor changes in the information that served as the basis for the initial selection of the advisor, including continuing compliance with applicable securities laws and whether the advice was based on the “generally accepted investment theories” first stated.


# Plan sponsors will also have to take into account the extent to which the advisor is complying with the terms of its agreement, utilization of the advice services by participants in relation to the cost of the services, and participant comments and complaints about the service. These complaints will in many cases need to be investigated and, to the extent that the comments and the questions raise issues about the advice offered, the plan sponsor may have to review the specific advice with the advisor.


The selection and monitoring of advisors providing investment advice to participants will require procedures on the part of plan sponsors to assure that the above requirements are satisfied. Plan sponsors will have to determine whether the burdens of these procedures are worth the possible benefits to plan participants.

02-08-2007

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Milberg, Weiss, Bershad & Schulman, L.L.P.

WAL-MART AGREES TO COVER PRESCRIPTION CONTRACEPTIVES UNDER ITS HEALTH INSURANCE PLAN
Milberg Weiss & Bershad LLP is pleased that Wal-Mart, the nation's largest private-sector employer (with some 1.3 million employees), has decided to provide coverage for prescription contraceptives through its employee health plan, effective as of January 1, 2007. This momentous change in Wal-Mart’s policy followed five years of litigation initiated by this firm, in which a class of female Wal-Mart employees had asserted that Wal-Mart’s denial of health insurance coverage for prescription contraceptives violated Title VII of the Civil Rights Act of 1964. The litigation brought significant public attention to the issue.

Wal-Mart’s decision was hailed by women’s groups across the country as a substantial consumer victory. Nancy Keenan, president of NARAL Pro-Choice America, called it "a victory for thousands of American women" and applauded "the women who had the courage to file a lawsuit against Wal-Mart and bring public attention to this disparity."

Shortly after Wal-Mart’s announcement, Plaintiffs decided to make a motion to voluntarily dismiss their lawsuit, since Wal-Mart's new policy provided company employees with the principal relief sought in the case. The court subsequently granted that motion. The firm determined that the lawsuit should be pro bono and has not sought attorney fees or reimbursement of expenses.

02-08-2007

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