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Bingham McCutchen, LLP

Bingham Appellate Team Wins Significant Appeal for Variable Annuity Life Insurance Co.
Bingham McCutchen LLP, led by Hartford Financial Institutions Litigation partner G. Eric Brunstad Jr. and Boston of counsel Rheba Rutkowski, won a significant appeal yesterday for Variable Annuity Life Insurance Co. (VALIC) in a decision that upholds the enforceability of voluntary prepayment premiums. The ruling is expected to have broad impact on commercial lending.

The U.S. Court of Appeals for the Seventh Circuit ruled in River East Plaza LLC v. Variable Annuity Life Insurance Co. that a Treasury-flat voluntary prepayment provision in a commercial loan was not an unenforceable penalty, remanding the case to the U.S. District Court for the Northern District of Illinois. Typical voluntary prepayment premiums, known as yield-maintenance formulas, require the borrower to compensate the lender for the interest that the lender will not receive if the borrower repays the loan before the maturity date.

“This is an important victory for commercial lenders and will have a wide impact on the industry as a whole,” said Brunstad. “Prepayment protection is a vital feature of commercial loan documents for lenders. The prepayment premium protects the lender against reinvestment risk, and this ruling reinforces this basic principle.”

The Bingham team, which was hired on appeal, also included Boston associates Alison Hickey, Christopher Hurld, Michael Moran and Samuel Rowley.

Yesterday's ruling overturns the district court's finding that the prepayment provision should be analyzed as a form of liquidated damages penalty in the context of a voluntary prepayment. The lower court determined that the fee in this case was not reasonably related to the damages that the lender suffered and that the parties did not agree to it in advance, so it was an unenforceable penalty. VALIC was ordered to refund nearly $3.7 million.

The Bingham team argued that the district court's use of a liquidated damages analysis was inappropriate in the context of a voluntary prepayment and that the provision was not a penalty. The Seventh Circuit agreed and ruled that the Treasury-flat prepayment premium was not a disguised penalty, entered a ruling in favor of VALIC, and remanded the case to the district court for determination of ancillary issues, including VALIC’s entitlement to its attorneys’ fees.

River East Plaza had borrowed money against real estate on a fixed rate for 20 years, secured by a mortgage. Three years later, River East Plaza wanted to prepay the loan in order to sell the property, but it wanted to avoid the prepayment premium. River East Plaza sued VALIC, seeking declaratory judgment that a voluntary prepayment premium in a commercial note was an unenforceable penalty.

The loan required a prepayment fee equal to either 1 percent of the proposed prepayment or the difference between the value of the remaining principal and interest from the date of prepayment to the maturity date discounted by the reinvestment rate, whichever was greater. The reinvestment rate was defined as the yield on a U.S. Treasury bond having a maturity date equal to the outstanding maturity date of the loan, known as a Treasury-flat prepayment fee.

08-23-2007

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Barnes & Thornburg LLP

Firm's Elkhart Office Adds Longtime Corporate Attorney, Community Leader
Glenn E. Killoren, an attorney with nearly 25 years of legal experience and significant involvement in the Elkhart community, is joining Barnes & Thornburg LLP’s Elkhart office as a partner in the firm’s Business Department.

Killoren, who previously was a partner at Baker & Daniels, will join Barnes & Thornburg on Sept. 1. He concentrates his practice on general corporate matters, including mergers and acquisitions, succession and tax planning, and corporate finance, among other areas. He also has experience counseling clients on estate planning and commercial real estate matters.

“We’re excited to have Glenn join our Elkhart office,” said J. Scott Troeger, managing partner of the Elkhart office. “His experience in representing the business interests of area companies and his active role in the community make him a good fit for our office, which provides legal services to clients in various industries in business matters in Indiana and worldwide.”

Killoren has considerable experience working in the recreational vehicle industry. He counsels RV manufacturers on a variety of issues, including product liability, intellectual property, regulatory compliance and warranty claims.

In addition to his legal work, Glenn is an active community volunteer, serving on the boards of Elkhart General Hospital, Oaklawn Psychiatric Center, Inc. (executive committee) and WNIT Public Television. He also is immediate past chairman of the Trinity United Methodist Church Administrative Board. Because of his past community service efforts, he received 1st Source Bank’s Ernestine M. Raclin Community Leadership Award.

He is a member of the Elkhart City, Indiana State, Illinois State and Michigan State bar associations. Killoren also is on the legal committee of the Recreational Vehicle Industry Association. He earned a B.B.A. (Accounting) in 1980 from the University of Notre Dame and his J.D. in 1983 from the Notre Dame Law School.

08-23-2007

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Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Baker Donelson Adds to Real Estate and Tax Practice Groups
The law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC announces the addition of attorneys Brett McCall and Nathan Smith to its Jackson office.

Mr. McCall, who joins the Firm as associate, concentrates his practice in commercial real estate and lending. Before joining Baker Donelson, Mr. McCall was associate Mississippi state counsel for First American Title Insurance Company, where his responsibilities included title claims litigation and underwriting. He was previously a clerk at the Mississippi Court of Appeals for the Honorable David Ishee.

Mr. Smith also joins the Firm as associate and focuses his practice on federal taxation, state and local taxation and estate planning. While at Mississippi College School of Law, he served as the Chief Executive Editor of the Law Review, and was the recipient of the West Outstanding Scholastic Achievement Award and the Law Review Best Casenote Award. Prior to obtaining his LL.M. in taxation from the University of Florida, Mr. Smith was a judicial clerk at the Mississippi Court of Appeals for the Honorable Donna Barnes.

Mr. McCall and Mr. Smith are the latest in a number of recent additions to Baker Donelson's Jackson office, which has grown from 50 attorneys to more than 75 in the last year. "We plan to keep adding talented associates like Brett and Nathan so we can continue to serve our clients in Mississippi and throughout the region," said William S. Painter, managing shareholder of the Firm's Jackson office.

08-23-2007

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Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P.

Three Important Victories for Broadcom in Litigation with Qualcomm
WilmerHale’s client Broadcom Corporation recently received three victories in its ongoing legal battles with Qualcomm Inc. First, on August 6, the Bush administration declined to reverse the US International Trade Commission (ITC) ruling that bans imports of new models of cell phones containing certain Qualcomm semiconductor chips found to infringe a Broadcom patent. Keker & Van Nest was counsel to Broadcom in the remedy phase of this matter.

The same day, in a patent case in San Diego, US District Judge Rudi Brewster ruled that two Qualcomm patents (as well as certain related patents) concerning to video-compression technology cannot be enforced because the company deliberately concealed the patents from a standards-setting group. The District Court also found that Qualcomm and its trial counsel committed “gross litigation misconduct” by withholding crucial evidence in Qualcomm’s patent infringement case against Broadcom. Qualcomm was ordered to pay all Broadcom’s litigation fees.

WilmerHale has represented Broadcom in its ongoing legal battle. To date, Qualcomm has been found to infringe four different Broadcom patents, one tried in the ITC and three others tried before a federal jury in May in Santa Ana, Calif. The Santa Ana jury found Qualcomm’s infringement of the three Broadcom patents to be willful, and on August 13, the US District Court judge ordered Qualcomm to pay double damages of $39.3 million for past infringement of the three patents.* The judge also ordered Qualcomm to pay Broadcom’s attorneys’ fees in the litigation, rounding out the third and final victory for Broadcom in its series of legal disputes with Qualcomm.

The WilmerHale team involved in the representation of Broadcom in this week’s developments includes: William Lee, James Quarles, John Regan, Richard O’Neill, Cynthia Vreeland, Dominic Massa, Mark Selwyn, Donald Steinberg, Michael Diener, James Lampert, Joseph Mueller, Vinita Ferrera, Timothy Jezek, Elizabeth Reilly, Elizabeth Rogers, Colin Rushing, Victor Souto, Maria Vento, Brad Bedingfield, Heath Brooks, Danielle Conley, Lawrence Cogswell, Danielle Conley, Will Crossley, Lauren Fletcher, Luba Greenwood, Alicia Hunt, Juliana Mirabilio, Gregory Noonan, Clark Petschek, Kate Saxton, Carrie Seares, Louis Tompros, Ang Xia and Teneshia Lewis. Those assisting the team included: Linda Byam, Lanta Chase, Nattha Chutinthranond, Jennifer Doig, Gina Ecolino Timothy Lyons, Deborah Maw, Rebecca McNew, Robert Ooi, Ellen Richardson, and Katharine Valente.

08-23-2007

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Roetzel & Andress A Legal Professional Association

Roetzel & Andress Taps Attorneys for Leadership Positions
The law firm of Roetzel & Andress named four partners to firm management positions, effective August 1, 2007. Assuming new positions are Robert E. Blackham, Ohio Practice Group Manager; Ronald S. Kopp, Administrative Partner; Bradley A. Wright, City Manager, Akron Office; and Diana M. Thimmig, City Manager, Cleveland Office.

As Ohio Practice Group Manager, Mr. Blackham is responsible for overseeing implementation of the firm’s strategic growth plans in all five of the firm’s Ohio offices. Along with his new responsibilities, Mr. Blackham will continue to focus on his practice of workplace injury, OSHA, workers’ compensation, intentional tort, non-compete agreements, and employee discrimination matters.

As Administrative Partner, Mr. Kopp will oversee the day-to-day operational functions of the firm. In addition to this role, Mr. Kopp will maintain his practice focusing on business litigation, including product liability matters, commercial disputes, legal malpractice, fraud, breach of contract disputes, and intellectual property litigation.

As City Managers, Ms. Thimmig and Mr. Wright will direct and manage the growth of their respective offices, including the broadening of the firm’s client base and the recruiting of attorneys to serve the firm’s regional and national client base.

Additionally, they will further promote the collaborative environments of their offices, in keeping with the firm’s philosophy of collegiality and client service.

Ms. Thimmig focuses her law practice on complex business and commercial litigation, bankruptcy cases, and insolvency proceedings and will maintain her practice.

Mr. Wright will continue to maintain his law practice, which focuses on transportation litigation, business litigation, retail representation, product liability defense, insurance law, and alternative dispute resolutions.

08-23-2007

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Pillsbury Winthrop Shaw Pittman LLP

Best-Selling Author Wins Summary Judgment in $200 Million Trademark Case
A Los Angeles federal judge has granted summary judgment and dismissed all claims against Pillsbury Winthrop Shaw Pittman client T. Harv Eker, a New York Times best-selling author and motivational speaker, in a case alleging trademark infringement, breach of contract and other causes of action. Eker, who was represented by Pillsbury intellectual property partner Richard H. Zaitlen, prevailed in this high-profile case alleging $200 million in damages for trademark infringement and breach of contract.

It was affirmed that Harv Eker is, and always has been, the owner of the mark Millionaire Mind and did not infringe on the rights allegedly owned by the plaintiff. The court affirmed the right of Harv Eker to sell the book title Secrets of the Millionaire Mind which was based on his popular seminar, “Millionaire Mind Intensive.”

“We are gratified that the court agreed with all of our arguments and essentially threw out the plaintiff’s multi-million dollar claims with a finding that they were without merit. This ends a saga that lasted for years with a plaintiff who essentially stalked our client in the guise of a lawsuit,” Zaitlen said.

The case was originally filed in Oct. 2006 by the plaintiff, author and former real estate agent Angelica Wagner. She claimed Eker infringed on her own book title, Secrets of the Millionaire Mind: Excellence: A Relentless Pursuit, when he published his own book under the title, Secrets of the Millionaire Mind: Mastering the Inner Game of Wealth. His book ultimately was translated into 26 languages and hit #1 on the nonfiction New York Times best-seller list.

Wagner, a former student of Eker’s course “Millionaire Mind Intensive,” sued Eker and two of his companies, Peak Potentials Training, Inc., and True Power International, Ltd., in U.S. District Court Central District of California (Los Angeles).

Judge Percy Anderson, in an Aug. 20 decision, ruled that Wagner’s “claims fail because there are no trademark rights in the title of a book.” He also noted that the plaintiff provided “no evidence that defendants breached either a contract or a promise.” Wagner’s claims for breach of confidence and negligence were denied because she had publicly disclosed the title of the book before publication and had exceeded the two-year statute of limitations in bringing her claims.

“What’s interesting was that the plaintiff was one of Harv’s students,” Zaitlen said. “But rather than use the concepts of the Millionaire Mind to develop her own business, she acted in bad faith to sue the person who taught her for hundreds of millions of dollars.”

08-23-2007

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Nixon Peabody LLP

Nixon Peabody LLP Expands Its Business Practice in New England; Lawrence Thomas Joins the Firm’s Venture Capital, Emerging Growth & Technology Group
Jonathan Karis, leader of Nixon Peabody’s Venture Capital, Emerging Growth & Technology practice said, “We’re pleased to welcome Larry to Nixon Peabody. Our technology clients will especially benefit from his knowledge as he has negotiated thousands of technology-related contracts throughout his career. Larry has a keen appreciation of the strategic counsel and business processes needed to maximize the value of technologies being distributed, developed, or acquired.”

Prior to joining Nixon Peabody, Mr. Thomas founded and managed a boutique law firm before joining Fidelity Investments and Investors Bank and Trust Company. He has provided strategic counsel to clients in the health care, financial services, government, insurance, high-tech, and manufacturing sectors, from start-ups to multinational corporations, and his law firm served as primary technology transactions counsel for the Mayo Clinic nationwide.

Andrew Glincher, managing partner of Nixon Peabody’s Boston office, noted, “Larry is an important part of a strategy to grow our business practice in areas that will continue to benefit our high-tech clients here in Boston area and nationwide. We welcome Larry to Nixon Peabody.”

Mr. Thomas is a frequent guest lecturer on technology-related topics. He received his B.A. from Iowa State University and earned his J.D. from Marquette University.
About Nixon Peabody’s Venture Capital, Emerging Growth & Technology Group

Nixon Peabody represents technology-based companies and the investors who provide capital to those companies. Clients include venture capital firms and other private equity investors, investment banks, and venture-capital-backed businesses in areas such as computer software and hardware, cleantech, life sciences, and medical device

08-23-2007

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