Law Firm News

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Law Firm News

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Akin Gump Strauss Hauer & Feld, L.L.P.

SEC Grants Limited Class-Wide Relief for Dual Offer Structures in Global Tender and Exchange Offers
On June 22, 2006, the SEC granted class-wide relief from Rule 14e-5 of the Securities Exchange Act of 1934, as amended, to allow dual tender or exchange offer structures as part of a global tender or exchange offer so long as six conditions are satisfied.

07-24-2006

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Thacher Proffitt & Wood LLP

New Developments in Bank Lending Preemption: The State Farm and Watters Cases
We are writing to alert you to two recent developments in the treatment of federal preemption of state lending regulations arising from decisions in State Farm Bank, FSB v. Burke and Wachovia Bank, N.A. v. Watters.

07-24-2006

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Pillsbury Winthrop Shaw Pittman LLP

United States v. Stein: DOJ Policy Threatening Companies with Indictment Based Upon Advancement of Employee Legal Fees Ruled Unconstitutional
On June 27, 2006, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York ruled that certain guidelines set forth in the Justice Department's so-called Thompson Memorandum violated the constitutional rights of 16 former partners and employees of the accounting firm KPMG who, along with the firm, were accused of selling fraudulent tax shelters in what has been described as the largest tax fraud case in U.S. history. At issue were guidelines issued in 2003 by former U.S. Deputy Attorney General Larry D. Thompson stating that, in reaching a determination of corporate wrongdoing, prosecutors can interpret a company's willingness to advance legal fees to its employees during a criminal investigation as a sign of lack of cooperation. The Court held that such guidelines violated the KPMG partners' and employees' Fifth Amendment right to a fair trial and Sixth Amendment right to legal representation.

07-24-2006

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Pillsbury Winthrop Shaw Pittman LLP

Hard Times for Soft Dollars
On July 12, 2006, the Securities and Exchange Commission (the "SEC") voted to publish an Interpretive Release (the "Release") that provides guidance on money managers' use of client commissions to pay for brokerage and research services under the "soft dollars" safe harbor in Section 28(e) of the Securities Exchange Act of 1934.

07-24-2006

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Sheppard, Mullin, Richter & Hampton, LLP

California Supreme Court Clarifies Standard For Employment "Discharge" For Imposition Of Waiting Time Penalties
On July 10, 2006, the California Supreme Court issued its long-awaited decision in Smith v. L'Oreal. The Court found that an employee is ""discharged"" for purposes of Labor Code Section 201 (requiring immediate payment at discharge) and Section 203 (waiting time penalties) not just when an employee is involuntarily terminated from an ongoing employment relationship, but also when an employee is released after completing a job assignment or time duration for which the employee was hired.


Amanza Smith was hired by L'Oreal to be a hair model for one day in a show featuring L'Oreal products. L'Oreal agreed to pay her $500 for her one day of work. However, L'Oreal did not pay Smith until more than two months after the day of the show. Smith filed a class action lawsuit alleging, among other claims, that L'Oreal violated Labor Code Section 201 when it did not pay her or the other models ""immediately"" upon discharge, as required by Labor Code Section 201. (Labor Code Section 201 states, ""If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately."") Smith also sought waiting time penalties under Labor Code Section 203 in the amount of $15,000, representing 30 days of the applicable daily wage rate ($500).

Both the trial court and the court of appeal found that Smith could not recover waiting time penalties under Labor Code Section 203 because the job termination that occurred when Smith completed her one day assignment did not constitute a ""discharge"" under Labor Code Sections 201 and 203. The California Supreme Court granted Smith's petition for review and reversed the decision.

The Supreme Court held that Smith was, in fact, “discharged” for purposes of Labor Code Sections 201 and 203. Citing public policy and legislative intent, as well as relying on the overall statutory scheme and legislative history of the Labor Code Sections, the Court concluded that ""an employer effectuates a discharge within the contemplation of sections 201 and 203, not only when it fires an employee, but also when it releases an employee upon the employee's completion of the particular job assignment or time duration for which he or she was hired."" Accordingly, the Court found employees in either group must be paid all wages earned and unpaid immediately upon the cessation of employment. Failure to do so will subject the employer to waiting time penalties.

This decision is especially troubling for employers that regularly hire employees for designated time periods. Based on a strict reading of the Court's decision in this case, an employer that hires an employee for a specific job assignment or duration of time will be required to pay the employee ""immediately"" upon completion of that assignment or time period. Any delay can result in the employer having to pay waiting time penalties under Labor Code Section 203. To minimize the risk of late payments and claims for waiting time penalties, employers should carefully review their payment practices in connection with the cessation of an employee's employment to ensure compliance with the L'Oreal decision.

07-24-2006

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Sheppard, Mullin, Richter & Hampton, LLP

USPTO To Provide New Accelerated Examination Program For Patent Applications
The U.S. Patent and Trademark Office (“USPTO”) has announced that it is implementing a new accelerated examination program in which it hopes to provide patent applicants with a final decision on whether a patent application will be granted or denied within 12 months of the filing date of the application.


Jon Dudas, Under Secretary of Commerce for Intellectual Property, stated that the program should “provide innovators with the early certainty they may need to attract investors or protect their inventions against infringers.” The accelerated examination program is actually a revision of the USPTO’s existing procedures for filing petitions to make special. The new accelerated examination program will apply to petitions to make special filed on or after August 25, 2006.

In order to take advantage of the new accelerated examination program, the following requirements must be met:

The application must be filed electronically and be accompanied with a petition to make special, with appropriate fees;
The application must be a non-reissue utility or design patent application;
The application must be complete and in condition for examination (e.g., all fees must be paid and the executed oath or declaration must be included);
The application must contain three or fewer independent claims and twenty or fewer total claims. The claims must be directed to a single invention. Dependent claims must not be argued separately from the independent claims;
Applicant must agree to an interview if requested by the Examiner;
Applicant must conduct a prior art search;
Applicant must provide an accelerated examination support document that includes an information disclosure statement, citing each reference deemed most closely related to the subject matter of each of the claims.
For each cited reference, the accelerated examination support document must identify all the limitations in the claims that are disclosed by the cited reference, and specify where the limitation is disclosed;
The accelerated examination support document must include a detailed explanation of how each of the claims are patentable over the cited references;
The accelerated examination support document must explain why the claimed invention is useful (unless it is a design patent application);
The accelerated examination support document must explain how the written description supports the claimed invention.
The USPTO stresses that the 12-month time frame is a goal, and will be considered achieved when any of the following is issued:

the mailing of a notice of allowance;
the mailing of a final Office Action;
the filing of an RCE; or
the abandonment of the application. The final disposition might occur later than the 12-month period due to other factors (e.g., an IDS citing new prior art). The USPTO’s failure to meet the 12-month goal is neither petitionable nor appealable.
Other restrictions and limitations apply. For example, applicants are given only a one-month non-extendible statutory period to reply to Office Actions. If an application becomes involved in proceedings outside the normal examination process (e.g., a secrecy order, national security review or an interference proceeding), the PTO will not treat the application as accelerated during those proceedings.

The new accelerated examination program might not be suitable for all patent applicants and it is recommended that applicants review the rules thoroughly.

07-24-2006

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Proskauer & Rose, LLP

District Court Denies Motion To Dismiss ERISA Claims Based on Alleged FLSA Violations
On June 12, 2006, the U.S. District Court for the Northern District of California denied IBM's motion to dismiss two ERISA claims arising out of IBM's alleged violation of the overtime requirements of the Fair Labor Standards Act ("FLSA").

07-24-2006

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