Law Firm News

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Law Firm News

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Husch Blackwell Sanders LLP

Changes in Patent Law: In re Seagate New standard for Willfulness -- only when defendants position is objectively unreasonable
The Federal Circuit recently made it more difficult for patent owners to recover enhanced damages in patent infringement cases. Unique to patent law, enhanced damages, sometimes referred to as "treble damages" (because a court has discretion to award up to three times the amount of actual damages), are akin to punitive damages awardable in other civil matters. Under the new standard, a patent infringement plaintiff will need to prove by clear and convincing evidence that the defendants actions of infringement were "objectively reckless" before a jury can award enhanced damages. A reckless infringer is one who goes forward with its alleged acts of infringement in the face of an "unjustifiably high risk of harm that is either known or so obvious that it should be known."

In August, 2007, the U.S. Court of Appeals for the Federal Circuit issued the, In re Seagate decision. Seagate overturned 24 years of legal precedent by expressly overruling the 1983 decision of Underwater Devices which had set a lower threshold for willful infringement, more akin to negligence. As noted above, the old "negligence" standard has been replaced with the higher standard of "objective recklessness." Combined with another prior en banc decision, Knorr-Bremse, the Federal Circuit has raised the bar of establishing willful infringement -- the pathway to enhanced damages.

In prior practice, it was perceived that a sure-fire way for a defendant in a patent infringement suit to avoid a willfulness finding was to obtain a competent opinion from patent counsel that the patents at issue were either invalid, unenforceable or not infringed by the defendants acts. Reliance on such opinions, however, triggers a waiver of the attorney-client privilege, at least as it relates to the subject of the opinions relied upon. Questions remained as to whether the waiver extended to communications between trial counsel and the client. Seagate answered that question, holding that waiver does not extend to trial counsel.

08-28-2007

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Stites & Harbison PLLC

Employers who review their hiring practices can avoid lawsuits
Employers who take a careful look at their hiring practices stand a good chance of avoiding legal problems down the road.

A good first step is to take a look at existing employees. While there is no legal obligation for employers, except for certain federal contractors, to diversify, a diverse workforce can be a powerful counterargument if someone claims discrimination.

If the workforce is not as diverse as the population in the area, it could pay to know why. Perhaps the applicant pool is skewed. I had a client with many jobs that were basically agricultural. A huge percentage of the applicants for those jobs were men. When this client was sued for sex discrimination, the gender gap was not an issue.

If the reasons for lack of diversity are not obvious, a company can take a look at the method for publicizing job opportunities. If all of the workers are from one group and word of mouth is the only way job openings are communicated, any disparity can continue indefinitely. In that case, the employer could consider other ways of posting or advertising jobs.

Review application form

The hiring process usually starts with an application form. A company should review its form to see what information is requested and decide whether the information is important.

Remember that employers cannot discriminate on the basis of race, gender, age, ethnic origin, religion or disability. Companies should avoid asking questions about that information, or even questions that elicit that information. Once an employer has gathered the information, it's harder to claim that it wasn't used in the hiring process.

To use an obvious example, there is no need to ask an applicant about his or her race or ethnicity.

A trickier problem involves questions that ask an applicant to disclose physical or mental disabilities. The question: "Are you disabled?" is obviously a problem. But questions about the applicant's health history or prior workers' compensation claims can also come back to haunt the employer.

Employers are not required, though, to hire applicants who cannot perform the essential functions of the job. If the job requires lifting 50 pounds frequently, the company can ask applicants if they can do that.

The form should contain a statement that all of the answers given are true and correct and that false information can result in discharge. The applicant should be required to sign.

If the application form asks for references, the company should be prepared to follow up and keep records. If references are not contacted, a plaintiff injured by that employee might claim negligent hiring.

Supervisors who interview applicants should be carefully coached on what questions they can ask and what statements they should avoid making. They should be taught to focus on the education and skills required for the job. Stray remarks about such topics as age and gender are unacceptable.

An ounce of prevention before hiring any more applicants can be worth a pound of cure in court.

08-28-2007

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Stites & Harbison PLLC

Alex L. Scutchfield elected president of Fayette County Bar Association
Stites & Harbison announced today that Alex L. Scutchfield has been elected president of the 2007-2008 Fayette County Bar Association. He was named FCBA President on May 1, 2007 after serving on the Board since 2002.

Scutchfield is a member in the Lexington, Ky., office and a member of the Torts & Insurance Service Group. His practice focuses on defending manufacturers, businesses and insurance companies in a variety of liability claims, defending professional liability cases and commercial collections.

08-28-2007

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Porzio Bromberg & Newman, P.C.

John S. Mairo Receives National Certification in Business Bankruptcy Law from The American Board of Certification
The American Board of Certification announced that John S. Mairo, a principal of Porzio, Bromberg & Newman, has successfully completed the requirements for national certification in business bankruptcy law.

To become certified, Mr. Mairo satisfied several requirements, including at least five years in full-time practice of bankruptcy, evidence of his knowledge based upon a review of his cases, and completion of numerous bankruptcy courses. In addition, he passed a comprehensive written examination.

Mr. Mairo is co-chair of the firm’s Bankruptcy Department and concentrates his practice in the areas of bankruptcy, workouts, financial reorganizations and creditors' rights in both New Jersey and New York. Mr. Mairo represents creditors’ committees, secured creditors, administrative agents for syndicates of lenders, debtors, landlords, equipment suppliers and other parties in large and small bankruptcy cases.

The American Board of Certification (ABC) is a non-profit organization dedicated to serving the public and improving the quality of the bankruptcy bar. The rigorous ABC certification standards are designed to encourage bankruptcy practitioners to strive toward excellence and to recognize those attorneys who are experts in the bankruptcy field.

08-28-2007

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Mintz, Levin, Cohn, Ferris, Glovsky & Popeo P.C.

Mintz Levin Financial Advisors Named to Barron's List of America's Best Independent Financial Advisors
Mintz Levin Financial Advisors (MLFA), LLC, an affiliate of the law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., has been named one of the top 100 independent financial advisors in the United States, according to Barron's.

The listing was compiled by financial-industry consultant R.J. Shook and is based on each advisor's assets under management, his or her contribution to the firm's revenues and profits and indications of service quality. Through interviews with the advisors and analysis of their data, Shook determined asset levels and made judgments about the quality of service provided. He also reviewed regulatory records. Investment performance was not a criterion because many advisors do not have audited track records.

"This recognition by Barron's speaks to the talented team of professionals who work tirelessly to help our clients achieve their goals," said Robert J. Glovsky, President of MLFA. "We are proud to be considered recognized for the quality of the service we provide."

MLFA provides high net worth individuals and families with comprehensive, holistic wealth management services. MLFA is an SEC Registered Investment Adviser, overseeing more than $1 billion of client assets. Its mission is to be the best organization at offering high level, customized, and objective wealth management services to high net worth individuals and families with a minimum of $1 million of investment assets.

In 2004, 2005, and 2006, Bloomberg Magazine chose MLFA as one of the nation's Top Wealth Management firms. MLFA was also included in the June 2006 edition of Financial Advisor magazine in its inaugural list of leading firms, and the Boston Business Journal recently listed MLFA as one of its top independent wealth management firms. Mr. Glovsky and Managing Director Cary P. Geller are regularly listed as two of the top wealth advisors in the country by such publications as Worth magazine.

08-28-2007

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White & Case, LLP

White & Case in $7.6 Billion Project Finance Treble
The London office of White & Case has closed three project finance transactions, with a combined financing package value of more than $7.6 billion, in the space of a month. The project finance market saw impressive levels of activity in the first half of 2007, including 31 transactions with a value of $1 billion or more, according to Infrastructure Journal's Report, 'Global Project Finance Review First Half 2007.'

"The average size of project financings continues to increase, with a $2 to $4 billion financing now quite commonplace in today's market. This has clear implications for advisors of all types, who may be called upon to work on a number of these large-scale, highly complex financings simultaneously," explained White & Case partner Philip Stopford, head of the Firm's Energy, Infrastructure, Project and Asset Finance Practice in London.

The project finance treble comprised the following:

* Representing Qatar Petroleum and Hydro Aluminium AS in connection with the $2.6 billion financing for the construction of a new aluminium plant, located within the Mesaieed Industrial City, South of Doha. The plant will have the capacity to produce 585,000 metric tonnes of primary aluminium and its facilities will include a 1250 MW captive power plant, a modern casthouse, carbon plant and a new port for unloading raw materials. The financing facilities comprised a $2.25 billion commercial bank term loan facility raised from a syndicate of 30 banks and Export Development Canada and an additional $350 million Export Credit Agency facility with GIEK of Norway. Financing agreements were signed on 23 August 2007. The White & Case team advising Qatar Petroleum and Hydro Aluminium was again led by Philip Stopford, working with partner Craig Nethercott and associates Nick Collins, Ed Hills, Charlotte Allan, Joseph Varghese and Elizabeth Kimura.

* Representing Spanish Egyptian Gas Company ("SEGAS") in connection with the $1.02 billion refinancing, on a non-recourse project financing basis, of the Damietta LNG complex in Egypt. The refinancing consists of a term-loan facility and a guarantee facility provided by over twenty international banks, together with a syndicated working capital facility. The Damietta LNG complex is situated approximately 60km west of Port Saïd on the Mediterranean coast of Egypt and is one of the world's largest capacity single train LNG facilities. The refinancing documentation was signed on 27 July 2007, with financial close achieved on 16 August 2007. The White & Case team advising SEGAS was also led by Philip Stopford, working closely with senior associate Euan Pinkerton, associates Nneka Okonkwo and Michael Brennan and trainee solicitors Anna Blest and Rhian Williams, with assistance from partner Jason Kerr and local partner George Degenhardt.

* Representing project sponsors Qatar Petroleum and Shell in relation to the financing of the Qatargas 4 Liquefied Natural Gas ("LNG") project, the financing documents for which were signed on 27 July. The total amount of financing raised is in excess of $4 billion. The financing consists of different facilities provided by 30 international, regional and Qatari banks, as well as a co-financing facility provided by a wholly-owned subsidiary of Shell. All the facilities have a maturity of 15.5 years. It is expected that when completed the facility's production capacity of 7.8 million metric tonnes of LNG per annum will be mainly available to the North American markets. The White & Case team advising the sponsors was led by partner Philip Stopford, working alongside partners David Baker and Craig Nethercott and associates Mark Castillo-Bernaus, Carina Radford, Claire Sellars and Ronan Lambe.

White & Case's Energy, Infrastructure, Project and Asset Finance Practice in London numbers more than 60 lawyers, including 13 partners. The team has been active in London for two decades working on market-leading deals. The Firm's work on the Qatargas series of LNG financings, along with its role on the ongoing $20 billion Sakhalin II (Phase 2) project and on the Brass LNG Project in New York make it the world's premier legal advisor for LNG project financings.

08-28-2007

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Le Boeuf, Lamb, Greene & McRae, L.L.P.

Landmark Settlement Announced in Federal Lawsuit Challenging Conditions at Immigrant Detention Center in Texas
LeBoeuf, Lamb, Greene & MacRae LLP announced yesterday a landmark settlement with U.S. Immigration and Customs Enforcement (ICE) that greatly improves conditions for immigrant children and their families inside the T. Don Hutto detention center in Taylor, Texas. Dozens of children were released from the facility with their families as a result of the litigation. The settlement is expected to be approved shortly by Judge Sam Sparks of the United States District Court for the Western District of Texas.

"This is a huge victory not only for the children and families that have been released from Hutto, but for every detainee held at the facility, now or in the future," said Sean R.D. Gorman, a partner in LeBoeuf Lamb's Houston office. "Since the filing of these lawsuits conditions have drastically improved in areas like education, recreation, medical care, and privacy."

The settlement is the result of extensive litigation and mediation in consolidated lawsuits filed earlier this year against Michael Chertoff, Secretary of the U.S. Department of Homeland Security (DHS), and six officials from ICE on behalf of 26 immigrant children. The children are between the ages of 1 and 17, and were detained at Hutto with their parents who, in almost all cases, were awaiting determinations on their asylum claims. LeBoeuf Lamb, the ACLU, the ACLU of Texas, and the University of Texas School of Law Immigration Clinic brought the lawsuits.

Since the original lawsuits were filed in March 2007, all of the 26 children represented by LeBoeuf Lamb and co-counsel have been released. The final six children were released days before the settlement was finalized, and are now living with family members who are U.S. citizens and/or legal permanent residents while pursuing their asylum claims.

For the children, the release day was very emotional. Andrea Restrepo, a 12-year-old child from Colombia, had been held in Hutto in a small cell for nearly a year with her mother and 9-year-old sister.

"I feel much better, I feel tranquil, I can do things now I couldn't do there," said Restrepo. "I am trying to forget everything about Hutto. I feel free. It was a nightmare."

Conditions at Hutto have gradually and significantly improved as a result of the groundbreaking litigation. Children are no longer required to wear prison uniforms and are allowed much more time outdoors. Educational programming has expanded and guards have been instructed not to discipline children by threatening to separate them from their parents.

"The litigation has achieved enormous results," said Stephen J. Lable, an associate in LeBoeuf Lamb's Boston office. "Instead of punishing asylum seekers by treating them like criminals, the settlement requires ICE to treat children more like children - with the care and compassion that exemplify American values."

Soon after the litigation commenced, ICE instituted a policy of detaining at Hutto only families placed in expedited removal proceedings and began to issue bonds for asylum seekers who passed their credible fear interviews.

"Imprisoning families who have fled their home countries under fear of persecution from their own governments, and detaining them in jail-like conditions, was an indescribable trauma for many of the children we represented," said Carol A. Lafond, an associate in LeBoeuf Lamb's New York office. "We are hopeful that by limiting the population at Hutto to families in expedited removal except in exigent circumstances, and adopting more meaningful release procedures, that the length of stay for children will be significantly reduced."

Additional improvements ICE will be required to make as a result of the settlement include allowing children over the age of 12 to move freely about the facility; providing a full-time, on-site pediatrician; eliminating the count system so that families are not forced to stay in their cells 12 hours a day; installing privacy curtains around toilets; offering field trip opportunities to children; supplying more toys and age-and language-appropriate books; and improving the nutritional value of food. ICE must also allow regular legal orientation presentations by local immigrants' rights organizations; allow family and friends to visit Hutto detainees seven days a week; and allow children to keep paper and pens in their rooms. ICE's compliance with each of these reforms, as well as other conditions reforms, will be subject to external oversight to ensure their permanence.

Despite the tremendous improvements at Hutto, the facility remains a former medium security prison managed by the Corrections Corporation of America, a for-profit adult corrections company. In recent years, Congress has repeatedly directed DHS to keep immigrant families together, either by releasing them or using alternatives to detention. Where detention is necessary, Congress has said immigrant families should be housed in non-penal, homelike environments.

"We are thrilled at what we were able to accomplish through litigation and mediation," said Lisa Graybill, Legal Director of the ACLU of Texas. "But the fact remains that our government should not be locking up innocent children - period. That is not what America is about. It is time for Congress to intervene and end the policy of family detention."

08-28-2007

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