Law Firm News

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Gardere Wynne Sewell LLP

GARDERE WELCOMES NEW CHIEF FINANCIAL OFFICER
Gardere Wynne Sewell LLP announces that Robert Swayze Jr. has joined the law firm as its Chief Financial Officer. Mr. Swayze, A 1976 graduate of Westminster College and a CPA, brings 24 years of accounting and financial experience to Gardere, including 16 years working in the legal industry. At Gardere, he will be responsible for overall financial and accounting management, including strategic planning, reporting, budgeting and financial analysis.

Mr. Swayze has served in leading financial positions at several AmLaw 100 firms. Most recently, he served as Director of Practice Management at Perkins Coie, LLP. He was CFO at Gray Cary Ware & Freidenrich (now known as DLA Piper US LLP) and was Management Administrator and Controller at Baker & McKenzie.

“We are very pleased to welcome Robert to our firm,” says Gardere Managing Partner Steve Good. “We feel comfortable turning over these responsibilities to Robert. He is first and foremost a highly qualified professional, and his background working with law firms allows him to provide insight that is invaluable, while at the same time allowing him to step into this role without experiencing a significant learning curve.

11-17-2006

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Davis Polk & Wardwell

Davis Polk Advised Comcast on a Notes Offering
Davis Polk & Wardwell advised Comcast Corporation on its SEC-registered debt offering of $900 million aggregate principal amount of 5.875% notes due 2018 and $600 million aggregate principal amount of 6.45% notes due 2037.

Based in Philadelphia, Comcast is the largest cable television operator in the United States.

The Davis Polk corporate team included partner Bruce K. Dallas and associates Michael Nordtvedt and Robert J. Maynes. Partner Rachel D. Kleinberg provided tax advice. Cari M. Hebel was the legal assistant on the transaction. All members of the Davis Polk team work in the Menlo Park office.

11-17-2006

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Davis Polk & Wardwell

ACA Capital Holdings IPO
Davis Polk & Wardwell advised Credit Suisse Securities (USA) LLC, J.P. Morgan Securities Inc. and Bear, Stearns & Co. Inc. as representatives of the underwriters on the $89.7 million SEC-registered initial public offering of ACA Capital Holdings, Inc.

ACA Capital Holdings is a holding company engaged in the business of providing asset management services and financial guaranty insurance products to participants in the global credit derivatives markets, structured finance capital markets and municipal finance capital markets.

The Davis Polk corporate team included partner Ethan T. James and associates Amber D. Derryberry and Keren Tal. Partner Nora M. Jordan and associate Jodi B. Ganz provided Investment Company Act advice. Lisa Garmong was the legal assistant on the transaction. All members of the Davis Polk team work in New York.

11-17-2006

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Jenner & Block LLP

Amicus Brief Challenges Government Plan to Curtail Guantánamo Habeas Rights
Jenner & Block attorneys recently authored an amicus brief on behalf of seven retired federal judges in an appeal contesting the constitutionality of federal laws governing the rights of “enemy combatants” to challenge their detentions in U.S. Courts. The brief contends that the government’s interpretation of the laws would inhibit the judiciary’s ability to investigate claims made by Guantánamo Bay detainees that evidence supporting their enemy combatant status was obtained through torture.

The U.S. Court of Appeals for the District of Columbia Circuit is set to review two consolidated cases challenging the constitutionality of the Military Commissions Act of 2006 (MCA) and the Detainee Treatment Act of 2005 (DTA). The laws purport to remove the right of habeas corpus for non-citizens labeled “enemy combatants” and to substitute a limited appellate court review of military hearings conducted at Guantánamo between August 2004 and January 2005. In those military hearings, prisoners had no right to counsel or to view the evidence against them, and the government’s charges were presumed “genuine and accurate.”

The brief notes that the military tribunals found over ninety percent of the prisoners to be “enemy combatants,” including many prisoners who, according to the government’s public records, told the tribunals that their confessions were false and had been coerced from them through torture and other inhumane treatment. The government has maintained that it was not the tribunals’ role to investigate allegations of mistreatment and that the federal courts are limited to reviewing the record of the tribunal proceedings. Because no habeas court would affirm detention based on coerced evidence, the brief contends that this scheme “fails to provide an adequate or effective substitute for habeas.”

“The Court [of Appeals] should not be made to accept evidence wrung from the prisoner by the simple expedient of brute force,” the brief concludes.

In an unusual move, on December 29, 2006, the Court of Appeals denied the retired federal jurists permission to file the amicus brief. The reason given by the Court was that the brief was submitted on behalf of former judges. Judge Rogers dissenting, noting that the federal rules and the Court's practice permitted the filing, and denying it "may itself create an appearance of partiality."

Jenner & Block Partner Patricia A. Bronte and Associate Douglas A. Sondgeroth, along with attorney Agnieszka M. Fryszman of Cohen, Milstein, Hausfeld & Toll, PLLC, filed the amicus brief on behalf of the retired federal jurists

11-17-2006

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McGuireWoods LLP

IRS Announces Formula for Businesses to Claim Telephone Excise Tax Refund
The IRS has announced a formula that will allow businesses and tax-exempt organizations to estimate their Federal telephone excise tax refunds. According to IRS Commissioner Mark E. Everson, “The formula is designed to provide a less burdensome option than gathering up to 41 months of old telephone records.”

Instead of determining the actual long-distance telephone excise taxes paid from March 2003 through July 2006, businesses and tax-exempt organizations may use a formula. The formula first figures the telephone excise tax as a percentage of the April 2006 telephone bills (which include the excise tax for both local and long-distance service) and the September 2006 telephone bills (which only include the tax on local service). The difference between these two percentages is then applied to the quarterly or annual telephone expenses to determine the amount of their refunds.

The refund is capped at two percent of the total telephone expenses for businesses and tax-exempt organizations with 250 or fewer employees, and one percent for those with more than 250 employees.

The IRS News Release contains the following example to illustrate application of the formula:

If a business has an April 2006 telephone bill of $1,000, which includes Federal telephone excise tax of $28, the tax percentage is 2.8 percent. If the September 2006 bill is $1,100 including Federal telephone excise tax of $16.50, the tax percentage is 1.5 percent. The business' long-distance excise tax percentage is 1.3 percent (2.8 percent for April minus 1.5 percent for September). The business multiplies 1.3 percent by its total phone expenses over the 41-month period to arrive at the amount of its refund. If this business had more than 250 employees, its refund would be limited to 1 percent of its total phone expenses for the period. If the business had 250 or fewer employees, the 2-percent cap would apply and would not limit the amount of the refund.

As discussed in our September 1, 2006 article (for prior coverage see below), the IRS has already provided individual taxpayers with the option to use standard refund amounts based on the number of exemptions allowed to that taxpayer. Individual taxpayers can request a $30 refund with one exemption, $40 for two exemptions, $50 for three exemptions, and $60 for four or more exemptions.

Sole proprietors have the additional option to use a calculation tied to the gross income reported on their Schedule C. Sole proprietors who report gross income of $25,000 or less on their Schedule C have two options: (1) use the standard amounts; or (2) request a refund based on their actual expenses. Sole proprietors who report more than $25,000 of gross income have three options: (1) use the standard amounts which cover both personal and business expenses; (2) use the formula for their business expenses and actual for their personal ones; or (3) choose to use actual amounts for both business and personal.

Farmers and individual owners of rental property apply similar rules, depending on the amount of gross income reported on Schedule F or Schedule E. Trusts and fiduciaries may not use the standard amount available to individuals. They should use the formula to figure their refunds, or request the actual amount paid.

Businesses (including sole proprietors, corporations, and partnerships) and tax-exempt organizations must complete Form 8913, Credit for Federal Telephone Excise Tax Paid, to claim a refund. Businesses should attach Form 8913 to their regular 2006 income tax returns. Tax-exempt organizations must attach it to Form 990-T.

11-17-2006

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McGuireWoods LLP

Ed Flippen Speaks on Retail and Wholesale Electric Markets in the U.S.
Ed Flippen (Richmond) spoke on "Retail and Wholesale Electric Markets in the U.S.: A 2006 Update" at the 2006 EDA Executive Symposium in Canada.

11-17-2006

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Baker & Hostetler, L.L.P.

New York Times: Conservatives: Keep Gay Marriage Out of the Courts
partners David Rivkin and Lee Casey authored an opinion column for the November 17 edition of the New York Times titled, "Conservatives: Keep Gay Marriage Out of the Courts."

The authors contend that state "marriage amendments," which "generally prevent recognition of gay marriages by defining marriage as a 'union between a man and a woman' in the state constitutions," may not be something conservatives really want. They go on to detail, "some very good reasons conservatives should oppose this approach."

Rivkin and Casey state that "the question of who may marry and under what conditions has been the province of the state legislatures. And it should have remained that way. The justifications for stripping the legislatures of authority in this area and settling the matter in a state’s constitution are wanting. It’s true that courts in certain states — for example, Massachusetts — have interposed themselves in this debate, misconstruing 'equal protection' guarantees as requiring recognition of gay marriages. But errant or aggressive judges can be corrected by amendments that simply deny the state courts authority over this issue, reserving the definition and regulation of marriage to the legislatures alone."

The authors continue: "Cluttering state constitutions with the disposition of many difficult social issues — and this process will probably go on, and even accelerate, especially if all of the states choose to define marriage in their constitutions — is likely to empower the judiciary more. This paradoxical and unwelcome result would arise because some of the newly enshrined constitutional definitions and guarantees are sure to conflict with one another, leaving the courts the only venue for resolving the tension. Conservatives should find this outcome highly unpalatable."

Rivkin and Casey go on to state that "leaving the marriage issue to the state legislatures has many benefits," and explain those benefits. In conclusion, the authors believe that "a constitutional amendment resolves a policy issue with a sufficient finality to prompt a more or less permanent sense of injustice and bitterness on the losing side . . . In Roe v. Wade, the Supreme Court granted victory on constitutional grounds to the abortion-rights position in the abortion debate, and that decision has polarized American politics for nearly two generations. America does not need another such issue. The wave of marriage amendments — at least those that go beyond removing the issue from judicial resolution — should stop."

11-17-2006

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