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Wiley, Rein & Fielding, L.L.P.

WRF Represents Amicus in Briefing that Leads to Key Victory in Massachusetts High Court
The Supreme Judicial Court of Massachusetts, applying Massachusetts law, has refused an effort by policyholder advocates to apply to insurance contract disputes a broad exception to the longstanding American Rule that each side in litigation must bear its own attorneys fees. Wilkinson, et al. v. Citation Insurance Co., et al., SJC-09683 (Mass. Nov. 17, 2006). On behalf of WRF client the Complex Insurance Claims Litigation Association (CICLA), WRF attorneys Laura A. Foggan and John C. Yang filed an amicus curiae brief in support of the insurer with respect to the attorneys’ fees issue. Many of the arguments made in WRF's brief were adopted by the Massachusetts high court in its important ruling in this case.

In Wilkinson, the court first ruled that auto racing equipment damaged in a fire was not used for a "business purpose," and therefore was not subject to a separate, lower coverage limit under a homeowners policy. Having found an indemnity obligation that the insurer had disputed, the court then turned to the question of the policyholders' recovery of attorneys’ fees. In a closely-watched case, which the Massachusetts Supreme Judicial Court took for review directly from the trial court on its own motion, the court ruled that policyholders were not entitled to attorneys’ fees associated with establishing the insurer’s duty to indemnify, even though an exception to the American Rule had been recognized under Massachusetts law for policyholder fees in cases involving litigation of an insurer's wrongful failure to defend a suit against the policyholder.

After affirming the court below on the coverage issue, the Massachusetts high court then reversed the trial court’s extension of the exception to the American Rule (under which each litigant bears his own legal expenses) in duty to defend insurance cases to cases concerning the duty to indemnify. In particular, the court rejected the policyholders’ suggestion that they were entitled to attorneys’ fees given the "special relationship" between an insurer and its policyholder. The court agreed that litigating to obtain coverage could reduce benefits, but noted that "the converse is also true; an insurer who successfully litigates a decision to deny coverage also loses contract value because of the need to expend funds to keep from paying for coverage it did not agree to provide." The court recognized that, with the application of the American Rule, there is always a chance that "one or both parties will come out less than economically whole."

Further, the Wilkinson court reasoned that, in light of the well-established American rule, an exception in insurance cases would need to rely on a "significant distinction" between insurance and other contracts—a distinction the court could not find. The court rejected the policyholders’ contention that bargaining power differences would support such a distinction, observing both that other commercial relationships involved unequal bargaining power and that many insurance transactions involved highly sophisticated buyers. The court also noted the significant statutory and regulatory mechanisms governing insurance transactions and cautioned against judicial modification of these mechanisms. In response to policyholder arguments that, under the American rule, the could be incentives for an insurer to deny coverage where it believed the policyholder would not challenge the decision in court, the court noted that: (1) there were "other statutory and regulatory avenues" available to counter such practices; and (2) most courts confronting the issue had not extended exceptions to the American Rule to actions concerning an insurer’s duty to indemnify. It therefore refused to abandon the American Rule for all insurance coverage matters, as policyholders had urged.

11-20-2006

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Wiley, Rein & Fielding, L.L.P.

Wiley Rein & Fielding Partner Nominated to U.S. Court of Appeals for the Armed Forces
President Bush has nominated Wiley Rein & Fielding partner Margaret A. Ryan to be a judge on the United States Court of Appeals for the Armed Forces. A litigator with extensive experience handling civil and criminal matters, Ms. Ryan’s impressive background includes service as a military officer and prosecutor. Over the course of her distinguished military career, Ms. Ryan was an Aide de Camp to the 31st Commandant of the Marine Corps, Chief Trial Counsel at U.S. Marine Corps installations at Okinawa, Japan and Quantico, Virginia, and a Communications Officer, Company Commander and Platoon Commander with the U.S. Marine Corps’ II and III Marine Expeditionary Forces.

Prior to joining private practice, Ms. Ryan served as a law clerk for Justice Clarence Thomas on the U.S. Supreme Court and Judge J. Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit.

If confirmed, Ms. Ryan would serve for a term of 15 years.

11-20-2006

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Smith Anderson Blount Dorsett Mitchell & Jernigan LLP

Pfizer Animal Health Announces Intention to Acquire Research Triangle Park-Based Embrex, Inc.
Pfizer Animal Health, a division of Pfizer Inc., will acquire Research Triangle-based Embrex, Inc. both companies announced. Under the Agreement, Pfizer will acquire 100% of Embrex’s equity for $17.00/share in cash, making Embrex a wholly-owned subsidiary of Pfizer, Inc. The total equity purchase price approximates $155 million. Pfizer and Embrex anticipate completion of the acquisition in the first quarter of 2007, subject to approval by Embrex’s shareholders, Hart-Scott-Rodino Antitrust Improvements Act clearance and other closing conditions.

In 1991, Embrex became the first biotechnology company in North Carolina to complete an initial public offering. Smith Anderson, led by Corporate practice group head Gerald F. Roach, served as counsel to Embrex in its initial public offering and subsequent financings and transactions, including the process which led to the Pfizer Acquisition.

11-20-2006

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Saul Ewing, LLP

MEIGS NAMED TO WORTH MAGAZINE’S 100 TOP ATTORNEYS LIST
John F. Meigs, a Partner in Saul Ewing LLP’s Personal Wealth, Estates and Trusts Department and Co-Chair of the Firm’s Charitable Giving Practice Group, has been named to Worth Magazine’s “Top 100 Attorneys” list for the second year in a row. The list of top U.S. attorneys serving affluent families is intended to assist individuals in their search for professionals who provide exceptional legal services.

In determining their selections for the second annual list, Worth’s editors researched attorneys specializing in trust and estates, philanthropy, elder care, matrimonial and other private practice areas. They solicited recommendations from wealthy individuals and the financial advisors, accountants and lawyers who serve them. Each nominee also completed a detailed questionnaire and provided their approaches to solving complex situations that arise when dealing with a client who has significant wealth.

Mr. Meigs has more than 30 years of experience in estate planning and estate and trust administration. He concentrates his practice in planning and problem solving for wealthy individuals and their families and property interests. He focuses particularly on certain federal tax aspects of planning for substantial estates and closely held businesses, including the generation-skipping transfer tax, and the taxation of transfers of interests in such businesses. Mr. Meigs is well-versed in complex estates litigation, as well as asset protection strategies and techniques.

Mr. Meigs received his B.A. from Yale University and earned his J.D. degree from the University of Pennsylvania School of Law.

11-20-2006

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Saul Ewing, LLP

SAUL EWING LLP ASSOCIATE TESTIFIES AT JUDGMENT ON GENOCIDE: THE INTERNATIONAL CITIZENS’ TRIBUNAL FOR SUDAN
Charles N. Curlett, Jr, an Associate in Saul Ewing LLP’s Litigation Department, testified as a witness for the prosecution at the International Citizens’ Tribunal for Sudan, a trial to hold Sudanese President Omar al-Bashir and his regime accountable for genocide and crimes against humanity.

At the United Nations Church Center in New York City on Monday, November 13, 2006, Mr. Curlett provided testimony based on his experience as a member of the U.S. Department of State’s 2004 Atrocities Documentation Project. In July and August 2004, a team of investigators including Mr. Curlett conducted more than 1,100 interviews in the refugee camps of eastern Chad of survivors from Darfur, Sudan about crimes committed by the al-Bashir regime. The results from the Project led the United States government to declare that the Darfur atrocities constitute genocide.

Mr. Curlett was among the more than 20 scholars, law professors and lawyers, foreign policy specialists and non-governmental organizations to aid in the tribunal. Survivors of genocide, including refugees from Sudan, also presented evidence in support of the indictment.

Presiding Judge and Nobel laureate Wole Soyinka found the Sudanese President guilty on Monday of crimes against humanity, genocide and violations of human laws and customs of war. Although Judge Soyinka's ruling is not legally binding, it confirmed the previous findings of organizations around the world regarding the atrocities in Sudan.

11-20-2006

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Saul Ewing, LLP

Lampert Says New General Counsel Rules Provide Certainty
Michael A. Lampert, a Partner in and Vice Chair of the Litigation Department, was quoted in this article about the new rules that require general counsel to have a limited license to practice law in states where they work but have not taken the bar exam.

The rules, which were implemented because the American Bar Association wanted to update licensing requirements as more attorneys relocate to a different state when changing jobs, have been passed in 26 states, most recently in Utah. The Utah law took effect on November 1, 2006.

In order for general counsel to obtain limited licenses, they must complete a thorough registration process, involving lengthy paperwork and registration and annual fees. The process varies from state to state.

"The big thing that in-house lawyers got from these rules is certainty," Mr. Lampert said. "But they've traded convenience.

11-20-2006

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Quarles & Brady

Quarles & Brady Streich Lang LLP Names New Partner
Quarles & Brady Streich Lang LLP elected Sandra J. Creta to partnership effective October 1, 2006

11-20-2006

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