Law Firm News

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Wade, Clark & Mulcahy, Attorneys At Law

WCM Victorious in New York Second Department Contruction Appeal
Associate Alexis Leist successfully defended a New York Second Department appeal. In Swiderska v. NYU, the plaintiff, a house cleaner, was cleaning a dormitory room when she fell off of a bed and suffered various physical injuries. The dormitory room was located on premises owned by the co-defendant and leased by our client. The plaintiff’s case was premised upon N.Y. Labor Law §240, which imposes strict liability upon owners, general contractors and their agents for gravity related risks and falls.

At the close of discovery, we moved for summary judgment. We argued that, by virtue of the work she was performing – house cleaning and not construction work – the plaintiff was not entitled to the protection of Labor Law §240. The trial court agreed with our analysis and dismissed the plaintiff’s case.

The plaintiff appealed. Plaintiff argued that cleaning work on a large-scale project triggered the protections Labor Law §240. The First Department disagreed with plaintiff’s contentions. It affirmed the lower court’s decision, thereby ending the case against our client.

12-08-2006

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Wade, Clark & Mulcahy, Attorneys At Law

WCM Presents Insurance Seminar to the London, UK International Underwriting Association
Senior Partner Dennis Wade, Partner Robert Cosgrove and of Counsel Michael Bono presented a seminar to the International Underwriting Association of London entitled “Defending the Insurance Professional in Coverage and Bad Faith Litigation.” The seminar provided tips and strategies for Underwriters and claims professionals to successfully testify in contested coverage matters. Specific topics included: preparation for testimony, local rules of court, responses to the most common underwriting and claims questions, and tactics for selling the case to the judge or jury.

12-08-2006

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Shapiro Sher Guinot & Sandler

SOX Relief Coming for Small Companies, but Challenges Remain
In 2002, as a response to a number of major corporate and accounting scandals, the Public Company Accounting Reform and Investor Protection Act – more popularly known as the Sarbanes-Oxley Act – was enacted. Four years later, the Securities and Exchange Commission is still deliberating how to execute it.

The uncertainty surrounding Sarbanes-Oxley and its implementation with regard to smaller companies – when and how they will have to comply with Section 404, in particular – has lingered so long that small companies have struggled to understand if and how they need to comply.

This year has been one of much regulatory debate about the law; however, that deliberation is hopefully coming to an end. In the spring an SEC small company advisory panel recommended that the Commission exempt certain smaller public companies from Section 404 altogether.

The SEC Commissioners declined to do so but proposed to once again postpone the compliance deadline. They also signaled that the SEC would revise the auditing standards and issue further guidance for small companies.

Commissioner Chairman Christopher Cox has reportedly promised to offer this much-anticipated guidance by December 13, 2006. The key goal of any regulatory changes will be to reduce the costs associated with Section 404 compliance. Separately, there has been talk that Congress may revisit the law.

According to the most recently proposed compliance deadline, “non-accelerated filers” will be required to assess and report on their internal controls for fiscal years beginning after December 15, 2007. They will also have to begin providing an auditor’s attestation regarding these controls in the annual reports for fiscal years beginning after December, 15, 2008. The new standards and guidance will likely make meeting these requirements less burdensome. The changes are eagerly awaited by smaller public companies and their lawyers and accountants.

Section 404 calls for a series of internal controls, involving corporate managers and auditors, to prevent financial fraud. The Public Companies Accounting Oversight Board (PCAOB), a private non-profit company created by SOX to regulate accounting firms, drafted lengthy standards by which these internal controls would be audited. It is these standards that are now under scrutiny and will likely be revised.

Additionally, the Committee of Sponsoring Organizations of the Treadway Commission, a private group of experts that develops financial reporting guidance for public companies and their auditors, at the request of the SEC small company advisory committee, recently issued its latest guidance for smaller public companies on Section 404 internal controls requirements. The document is designed to help management with establishing and maintaining effective internal control over financial reporting and assessing the effectiveness of these controls.

Regardless of the changes soon to be announced by Chairman Cox, other challenges to the Sarbanes Oxley Act may continue to cloud the waters. Rep. Patrick McHenry (R-NC), a member of the House Financial Services Committee, has indicated there is interest in the House to reexamine Section 404’s requirements, and Rep. Ron Paul (R-TX) introduced a bill last year that would repeal the provision altogether.

In addition, a lawsuit that threatens the entire Sarbanes-Oxley regime has been filed by plaintiffs who claim that the establishment of the PCAOB violates the separation of powers principal under the Constitution. The plaintiffs, led by the Free Enterprise Fund, claim the PCAOB wields executive power but is “immune from presidential supervision or control” because its board members are appointed by the Commissioners.

It is highly possible that Congress will demure, and that the constitutional challenge will fail in the courts. If so, there is an argument to make for exempting specific industries from internal controls requirements. The biotechnology sector, in particular, has been hard hit by the law. Biotech executives have insisted that the overall compliance effort amounts to an unmerited distraction from their companies’ real mission – to become profitable and creative entities that produce products that improve, and sometimes save, peoples’ lives.

The Biotechnology Industry Organization has rightly advocated for change. While there is broad consensus that Section 404’s internal controls are valuable deterrents to fraud and, therefore, benefit investors, the costs of Section 404 – for individual companies, financial markets, and ultimately investors – outweigh the benefits on the whole. This is especially true in the life sciences industry, where companies are compelled to devote as much of their resources as possible to research and development.

Thus, while some uncertainty remains, it is not necessarily unwelcome. The delay in implementation has given regulators time to recalibrate this important statute. In the meantime, companies that are not yet required to comply with Sarbanes-Oxley will want to follow all regulatory developments before implementing any costly compliance efforts in the coming fiscal year.

12-08-2006

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Schnader Attorney At Law

Fourteen Schnader Attorneys Named ‘Pennsylvania Rising Stars’
Fourteen Schnader attorneys have been recognized as ‘Pennsylvania Rising Stars’ for 2006 by the publishers of Law & Politics and Super Lawyers. The special supplement, which was included in the December 2006 issue of Philadelphia Magazine, recognized the following attorneys for outstanding achievement in their respective practice areas:

Linda B. Alle-Murphy (Business Litigation)
Christina Glise Alt (Estate Planning and Probate)
Michael Barrie (Bankruptcy and Creditor/Debtor Rights)
Jennifer A. L. Battle (General Litigation)
Kevin S. Blanton (Real Estate)
Meredith Brennan (Family Law)
Jeffrey L. God (Business/Corporate)
Thomas W. Hazlett (Civil Litigation Defense)
Jonathan S. Liss (Business Litigation)
Robert A. McKinley (Intellectual Property Litigation)
Bruce Merenstein (Appellate Law)
Joanne Noble (Business Litigation)
Stephen J. Shapiro (General Litigation)
Janette D. Simmons (Business Litigation)

“It is an honor to have our firm and these individuals recognized for their exceptional talent and outstanding professional achievements,” said Chairman Ralph Wellington. “On behalf of the entire firm, I’d like to congratulate each of them for this notable accomplishment.”

‘Rising Stars’ is an annual publication of Law & Politics and Super Lawyers that was first published in Minnesota in 1998 to recognize the state’s top up-and-coming attorneys. To determine who is chosen as a ‘Rising Star,’ the editors of Law & Politics solicit nominations from the publication’s most recent group of ‘Super Lawyers’ – attorneys licensed to practice five years or more, who are recognized as the top in their field – and then conducts extensive independent research on all of the nominees and their professional credentials.

12-08-2006

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Preti, Flaherty, Beliveau, Pachios & Haley, L.L.P.

Attorney Michael K. Mahoney to be Governor John Baldacci's Chief Legal Counsel
Preti Flaherty announced today that Michael K. Mahoney, a partner who has practiced with the firm’s Legislative Group since 2000, has been appointed Chief Legal Counsel to Governor John E. Baldacci. Mahoney will replace Tom Federle, who will return to private practice.

12-08-2006

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Perkins Coie LLP

Mike Gallagher Presents at CLE INTERNATIONAL
Perkins Coie Partner, Mike Gallagher, former Assistant Secretary of Commerce and top telecommunications advisor to President Bush, will be presenting at the Continuing Legal Education Telecommunications Law Conference December 8, 2006 at 1:30 p.m.

12-08-2006

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Lieff, Cabraser, Heimann & Bernstein, L.L.P.

Alaska settles with AOL, Time Warner
The state of Alaska has settled a securities fraud case for $50 million against America Online, Inc., Time Warner Inc. and Historic TW Inc. The state filed the lawsuit in 2004 in Juneau Superior Court, claiming that the companies misrepresented advertising revenues and growth of AOL and AOLTW, along with the number of AOL subscribers.
The state claimed the effect was to artificially inflate the stock price of AOL and AOLTW to the detriment of Alaska state investment funds. Under the terms of the settlement, Time Warner did not admit liability or wrongdoing. The lawsuit was filed on behalf of the Alaska Department of Revenue, the Alaska State Pension Investment Board and the Alaska Permanent Fund Corporation. The Alaska funds that invested in AOL, Time Warner, and Historic TW stock include the permanent fund and state pension funds.
Alaska officials estimated losses of $70 million when they filed the lawsuit, said Department of Law spokesman Mark Morones. The Alaska Department of Law retained the law firm of Lieff Cabraser Heimann & Bernstein, LLP, to lead the litigation efforts.
Alaska's new Revenue commissioner, Patrick Galvin, said protecting Alaska's financial assets is a key priority for the state. "The corporate scandals on Wall Street in the past several few years required us to seek recovery of the millions of dollars the state of Alaska lost from its investment portfolios," Galvin said. "Today's settlement represents a substantial recovery of those losses.

12-08-2006

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