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Cleary, Gottlieb, Steen & Hamilton, L.L.P.

Kindred Healthcare in Proposed Spin-Off and Merger of Leading Institutional Pharmacy Businesses
Cleary Gottlieb is advising long-time client Kindred Healthcare in its efforts to combine its institutional pharmacy business, Kindred Pharmacy Services, with PharMerica Long-Term Care, the institutional pharmacy business of AmerisourceBergen Corporation, as a new publicly traded company that would be the second largest in the institutional pharmacy services market, with expected revenues of approximately $1.9 billion.

Kindred and AmerisourceBergen publicly announced the signing of a non-binding Letter of Intent on Monday, August 7, 2006. They expect to sign a definitive agreement on or about September 30, 2006, and anticipate completion of the transaction in the first quarter of 2007.

The combined company will arise from a merger that immediately follows simultaneous, tax-free spin-offs by Kindred and AmerisourceBergen. The shareholders of AmerisourceBergen and Kindred will each hold 50 percent the combined company’s shares. In addition, PharMerica and Kindred Pharmacy Services will each borrow approximately $150 million and distribute it to their respective parents immediately before the spin-offs. The new company will assume the $300 million in debt.

08-07-2006

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Shearman & Sterling LLP

IP Partner Gives New Meaning to 'Soccer Mom'
The Recorder featured Partner Vicki Veenker (MP-IP) and her involvement with the Women's Soccer Initiative, Inc., a nonprofit organization that is working to re-launch a women's professional soccer league in the United States. After the women’s professional soccer league was suspended in 2003, disappointing Veenker's now 10-year old daughter, Veenker contacted WSII. With the backing of partner Creighton Condon (NY-MA), head of the Firm's sports law practice, the firm offered pro bono legal representation to the organization and is currently advising WSII on the legal aspects of launching the league.

08-07-2006

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Seyfarth Shaw LLP

Ken Dolin Published in The National Law Journal
Ken's article, ""Labor Law: Work Rules and § 7 Rights,"" in the August 7, 2006 issue of the National Law Journal highlights the challenge the National Labor Relations Board (NLRB) has in regulating conduct from workers attending union organizing activities. ""In Lutheran Heritage Village-Livonia, the NLRB upheld work rules prohibiting ""abusive and profane language,"" ""harassment"" and ""verbal, mental, and physical abuse"" - - all of which were intended to maintain order in the workplace and none of which explicitly or implicitly prohibited § 7 activity-while finding a nonsolicitation rule and a no-loitering rule unlawful.""

He writes: ""In regulating conduct attending union organizing activities, the board's primary concern is to protect the statutory rights of employees, but in doing so it must balance those rights against the rights of the employer. Hardin & Higgins, 1 The Developing Labor Law (BNA Fourth Ed. 2001) at 76. Section 7 of the National Labor Relations Act (NLRA) provides: ""Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities."" 29 U.S.C. 157 (2006). Section 8(a)(1) of the NLRA forbids employers to ""interfere with, restrain or coerce"" employees in the exercise of § 7 rights. 29 U.S.C. 158(a)(206).""

""In Lafayette Park Hotel, 326 NLRB 824, 825 (1998), the board explained that to determine whether the mere maintenance of certain work rules is unlawful, ""the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their § 7 rights."" . . . In Adtranz ABB Daimler-Benz Transp. N.A. Inc. v. NLRB, the U.S. Circuit Court of Appeals for the District of Columbia found that the board had misapplied its traditional analytic framework as set forth in Lafayette Park in concluding that an employer's rule banning ""abusive or threatening language"" was unlawfully overbroad. The court held that the rule was lawful because it was clearly intended to maintain order and avoid liability for workplace harassment and could not reasonably be read to prohibit activity protected by § 7. . . . Following guidance from the D.C. Circuit in Adtranz, the board majority in Lutheran Heritage Village-Livonia announced how it will determine whether the maintenance of a challenged rule is unlawful. If the rule explicitly restricts activities protected by § 7, the rule will be found unlawful. If the rule does not explicitly restrict activity protected by § 7, a violation is dependent upon a showing of one of the following: The employee would reasonably construe the language to prohibit § 7 activity; the rule was promulgated in response to union activity; or the rule has been applied to restrict the exercise of § 7 rights.

Ken adds: ""It is difficult to reconcile the Lutheran Heritage Village-Livonia majority's test for evaluating the legality of a challenged rule with the application of this test in the context of evaluating the employer's no-loitering rule. Four of the five board members found the employer's no-loitering rule unlawful because ""employees could reasonably interpret the rule to prohibit them from lingering on the employer's premises after the end of a shift in order to engage in [protected] activities, such as the discussion of workplace concerns."" Chairman Robert J. Battista, on the other hand, concluded that the no-loitering rule was lawful because it did not explicitly forbid protected activity; it was not promulgated in response to protected activity; it had not been applied to protected activity; and employees did not ordinarily nor reasonably refer to their organizing activities as ""loitering."" It could also be argued that, post-Sept. 11, 2001, prohibiting employees from remaining in or near a workplace in an idle or apparently idle manner serves a legitimate security purpose, and therefore the promulgation of such no-loitering rules should be permitted. Following the D.C. Circuit's view in Adtranz, Lutheran Heritage Village-Livonia recognizes the legitimate right of employers, as well as employees, to have a civil and decent workplace. Contrary to the views of the dissenting members in Lutheran Heritage Village-Livonia, the current board will not protect unreasonable interpretations of rules; merely because a rule can be interpreted to apply to protected rights is an insufficient basis for overturning the rule. The facial validity of the rule, however, will immunize neither its promulgation from challenge when the rule was promulgated in response to union or other protected activity nor its application from challenge when the rule has been applied to restrict the exercise of protected rights.

08-07-2006

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Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.

Adams Presents at the South Texas College of Law Employment Law Conference
On July 13, 2006, H. Mark Adams served as a panelist on the When Disaster Strikes: The Legal and Human Resources Response panel during the South Texas College of Law Employment Law Conference in Houston, Texas. As the result of Adams' presentation, he has been invited to speak on the same topic at the Annual Meeting of the Texas Association of Defense Counsel this Fall in New Orleans and at the University of Houston Law Center's Annual Employment Law Conference for Employers in Dallas in November and in Houston in December.

08-07-2006

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Howrey, LLP

Congratulations: Hispanic Bar Association
The Hispanic Bar Association (HBA) of the District of Columbia has been named the Affiliate Organization of the Year by the Hispanic National Bar Association (HNBA), and will receive an award marking this honor at the HNBA’s national convention, according to the D.C. Bar. "'We are very pleased to be recognized through the HNBA's Affiliate Organization of the Year Award for our contributions to Hispanic lawyers as well as the broader Hispanic community,' said HBA President Christina Guerola Sarchio (DC)." “Our association works hard on behalf of its members, and we look forward to sharing our efforts with other affiliate organizations at the convention.

08-07-2006

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Edwards & Angell, L.L.P.

Partner Paulette Brown Co-Chairs the American Bar Association Commission on Women in the Profession’s Study on Women of Color in Law Firms
On August 4, 2006, the Commission on Women in the Profession of the American Bar Association (ABA) released a report entitled ""Visible Invisibility: Women of Color in Law Firms."" Litigation partner Paulette Brown serves as a member of the Commission and as Project Co-Chair of the Report, and co-authored the report's Introduction. "" The ABA Commission on Women in the Profession embarked upon a research initiative to examine the experiences of women of color in the legal profession and address questions of job satisfaction, hindrances by legal employers and equality in the workplace. The ABA recently held its Annual Meeting in Honolulu, Hawaii, at which the Commission of Women in the Profession presented their findings from the Women of Color Research Initiative, and provided an educational forum for ABA leaders and other parties interested in using the study to effect positive change in the profession.

Forbes.com, The Washington Post, and The Houston Chronicle published an article on August 6, 2006 entitled “ABA: Women of Color Leaving Big Firms,” which discusses the findings of the Commission with regard to discrimination in the workplace and how it has affected women of color who are leaving the private practice of law. Paulette Brown and Litigation partner Elaine Johnson James were interviewed for comment in the article, which also appeared on the front page of Diversity Inc. News on August 7, 2006.

08-07-2006

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Wolf Haldenstein Adler Freeman & Herz, LLP

Wolf Haldenstein Announces Final Approval of Settlement of In Re CNL Hotels Securities Litigation
On August 1, 2006, the Federal District Court located in Orlando, Florida granted final approval of the settlement of the class action lawsuit captioned In re CNL Hotels & Resorts, Inc. Securities Litigation, Case No. 6:04 cv 1231 Orl-31KRS. The law firms of Wolf Haldenstein Adler Freeman and Herz LLP, Chimicles & Tikellis and Labaton Sucharow & Rudoff LLP represented the Proxy Class and Purchaser Class as Co-Lead Counsel. (Collectively, “Plaintiffs’ Counsel.”)

Following a final approval hearing held on July 26, 2006, the Court approved the Settlement as fair, reasonable, and adequate, and in rendering its approval of an award of attorneys’ fees and costs to Plaintiffs’ Counsel, the Court noted that “Plaintiffs’ counsel pursued this complex case diligently, competently and professionally” and “achieved a successful result.” More than 100,000 class members received notice of the proposed settlement and no substantive objection to the settlement, plan of allocation or fee petition was voiced by any class member.

The Settlement resolves federal securities law and state law claims that were filed against CNL Hotels & Resorts, Inc. (f/k/a CNL Hospitality Properties, Inc.)(“CNL Hotels”) and other individual and entity defendants (“Settling Defendants”) in August, 2004. The Action was filed on behalf of: (a) CNL Hotels shareholders entitled to vote on the proposals presented in CNL Hotels’ proxy statement dated June 21, 2004 (“Proxy Class”); and (b) CNL Hotels’ shareholders who acquired CNL Hotels shares pursuant to or by means of CNL Hotels’ public offerings, registration statements and/or prospectuses between August 16, 2001 and August 16, 2004 (“Purchaser Class”). The Settling Defendants have denied and continue to deny liability or any act of negligence or misconduct.

The Proxy Class claims were settled by (a) CNL Hotels having entered into an Amended Merger Agreement which significantly reduced the amount that CNL Hotels paid to acquire its Advisor, CNL Hospitality Corp., compared to the Original Merger Agreement approved by CNL Hotels’ stockholders pursuant to the June 2004 Proxy; (b) CNL Hotels having entered into certain Advisor Fee Reduction Agreements, which significantly reduced certain historic, current, and future advisory fees that CNL Hotels paid its Advisor before the Merger; and (c) the adoption of certain corporate governance provisions by CNL Hotels’ Board of Directors. In approving the Settlement, the Court concluded that in settling the Proxy claims, “a substantial benefit [was] achieved (estimated at approximately $225,000,000)” and “this lawsuit was clearly instrumental in achieving that result.”

The Purchaser Class claims were settled by Settling Defendants’ payment of $35,000,000, payable in three annual installments (January 2007 to January 2009). These monies, after payment of fees and expenses, will be distributed pursuant to a Plan of Allocation to all eligible members of the Purchaser Class.

08-07-2006

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