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Allen & Overy LLP

German Competition Group hosts client seminar
On one of the few 'World Cup free' days in July, the German Competition Group hosted a client event to celebrate the launch of the 10th edition of “Langen/Bunte,” a leading German language practitioner commentary on German and EU Competition law.

Of Counsel, Prof. Dr. Hermann-Josef Bunte edited the book and head of German Competition Group, Ellen Braun was one of 20 contributing authors.

Clients’ inhouse counsel, amongst others from Deutsche Bahn, Degussa, Alte Leipziger, SAP, Commerzbank, Audi et al., mingled with representatives from economic consultancies and the German Competition Authority, including president Ulf Böge and several heads of decision-making boards. They were welcomed by Rainer Winkler, director of the Luchterhand Publishing House, publishers of the book, and Dr. Braun and Prof. Dr. Bunte.

A series of 'hot topics' from the amended German Competition Act 2005 were presented by Supreme Court Judge Prof. Dr. Joachim Bornkamm, Prof. Dr. Bunte and Michael Baron, Ministry of Economics.

Discussions over the necessity of an amendment of German merger control following the EU’s new merger control test triggered a lively debate: has Germany's 'structural approach' to competition policy served its time, and should it give way to the more 'modern performance approach' pursued by the EU Commission?

When positions proved irreconcilable without a glass of wine to enlighten the spirited discussion, the the congregation moved into the interior courtyard of the stylish Villa Kennedy in Frankfurt where clients and guests enjoyed German and Austrian wines, canapés and tropical temperatures until after midnight.

07-20-2006

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Manatt, Phelps & Phillips, LLP

George A. Cooke Joins Manatt’s New York Office
Manatt, Phelps & Phillips, LLP, the national law and consulting firm, announced today that George A. Cooke, a prominent entertainment and media lawyer, has joined the firm’s New York office as a Partner. Mr. Cooke joined Manatt from the New York office of O’Melveny & Myers LLP.

Mr. Cooke focuses on motion picture and television distribution and new media, areas in which he represents both domestic and international programmers and distribution platforms. Prior to joining O’Melveny, he spent twenty years with Home Box Office, where he most recently served as Senior Vice President and Chief Counsel. During his tenure, Mr. Cooke was responsible for the legal aspects of HBO's theatrical film production, acquisition and distribution, including its involvement in public and private film financings, coproduction transactions and domestic and foreign licensing arrangements. Mr. Cooke also supervised HBO's corporate and securities matters including mergers and acquisitions and SEC reporting, as well as content review, copyright administration, banking relationships, investments and joint ventures. Prior to joining HBO, he practiced corporate law with Ropes & Gray in Boston. He earlier spent four years as an officer in the U.S. Navy.

“This is an important strategic addition to our entertainment and media practice, and to our New York office,” said Paul H. Irving, Manatt’s Chief Executive and Managing Partner. “George’s background and expertise, combined with his long experience with one of the world’s premier entertainment companies, will strengthen one of our core industry practices. We are very fortunate to have him on our team.”

“George will be supported by other experienced attorneys in New York and Los Angeles with deep expertise in entertainment and media transactional and litigation work,” added William S. Bernstein, Administrative Partner of the New York office.

“I am extremely pleased to be joining Manatt,” said Mr. Cooke. “Manatt has a sophisticated bicoastal entertainment and media practice. I look forward to working with my new colleagues in this endeavor.”

Mr. Cooke received his A.B. from Dartmouth College, cum laude, and Phi Beta Kappa, and his M.A. with First Class Honours from Cambridge University. He earned his J.D., cum laude, from Harvard Law School, and he is admitted to practice in New York and Massachusetts.

Mr. Cooke has served as a member of the Practicing Law Institute faculty and is a frequent speaker for organizations such as the Association of the Bar of the City of New York, the Copyright Society of the U.S.A, the New York State Bar Association, and the Harvard, Columbia and Cardozo Law Schools. In 2003, he served as Co-Chair for the International Film and Television Finance Summit.

07-20-2006

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Ruskin, Moscou & Faltischek, PC

Ruskin Moscou Faltischek Adds New Associate To Its Ranks Erik H. Rosanes Joins Firm's Real Estate Department
Ruskin Moscou Faltischek, P.C. announced today that attorney Erik H. Rosanes joined the firm as an associate. Rosanes is a member of the firm's Real Estate Department.

Rosanes has an extensive background in real estate law, having represented regional and national institutional lenders as well as individuals in the residential real estate property industry. He also represented several Long Island-based businesses in commercial transactions, commercial litigation, and employee relations.

While attending the University of Maryland School of Law he served as a law clerk for the Maryland Office of Administrative Hearings and as a law clerk for a prominent mid-sized law firm in Baltimore.
Mr. Rosanes is a member of the Suffolk County Bar Association, the Chaminade High School Alumni Association, the Chaminade Alumni Lawyer's Association and the Ancient Order of Hibernians.

""We are very pleased to welcome an attorney with Erik's valuable background to our team,"" noted Eric Rubenstein, Partner and Co-Chair of the firm's Real Estate Department. ""His talent and exceptional capabilities and experience will benefit our clients well and are representative of the superior service for which Ruskin Moscou Faltischek is known.""

For more than 35 years, Ruskin Moscou Faltischek, headquartered in Uniondale, has built a reputation as one of the region's leading providers of innovative legal services. Its attorneys are practical, experienced advocates who measure their success by their clients' success. Cornerstone groups in all major practice areas of the law are represented at the firm, including corporate & securities, financial services, commercial litigation, intellectual property, health care, real estate and trusts & estates. Through its independent arm, Island Strategies, lobbying services are provided at all governmental levels. Clients include large and mid-sized corporations, privately held businesses, institutions and individuals.

07-20-2006

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Arthur Cox

Arthur Cox Northern Ireland appoints four new partners and a consultant to the firm
Arthur Cox Northern Ireland is pleased to announce the appointment of Judith Brown, Anne Donnelly, Catriona Gibson and Anne Gilroy as partners, and David Flinn as consultant, in the firm.

Judith Brown becomes a partner in the Banking Department. Judith trained with Arthur Cox and has worked in the Banking Department since qualifying as a solicitor in 1999. She practises in the area of secured lending, development and acquisition finance and banking law generally.

Anne Donnelly becomes a partner in the Private Client Department. She has been with Arthur Cox for eight years and graduated from Queen’s University, Belfast. Anne will deal mainly with conveyancing and probate matters. Anne is a committee member of the Belfast Solicitors’ Association.

Catriona Gibson joins as a partner in the Banking Department from Shoosmiths where she was a partner and Head of Banking Litigation. Catriona, who qualified with City firm Lovells, will deal with all aspects of banking litigation.

Anne Gilroy is appointed as a partner in the Corporate and Commercial Department. She joins Arthur Cox from Cardiff-based firm Morgan Cole where she managed the Cardiff corporate team. Anne, who qualified from the University of Cardiff, will work on mergers and acquisitions, private equity transactions, corporate finance and projects.

David Flinn is a Consultant in the Corporate and Commercial Department, specialising in energy work. David was the former Group Solicitor in Viridian Group plc, having provided legal advice to Northern Ireland Electricity as a solicitor for over 20 years. He is a former Chairman of the Belfast Solicitors’ Association and the Northern Ireland Employment Lawyers Group. David provides advice in the areas of energy law, general commercial and employment law.

Arthur Cox is the only “all-Ireland” law firm, with full-service offices in Dublin and Belfast. The firm also has offices in London and New York. The Arthur Cox Northern Ireland practice encompasses all aspects of corporate and business law. Earlier this year, Arthur Cox was awarded European Law Firm of the Year 2006 at the prestigious Legal Business Awards in London.

07-20-2006

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Calfee, Halter & Griswold LLP

Denise Slazyk Joins Calfee
Calfee welcomes Denise Slazyk as an associate with the firm's Corporate group. She earned her J.D. and B.S. from the University of Saskatchewan.

07-20-2006

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Rothgerber Johnson & Lyons

Is Employment Insurance Right for My Business?
More and more, employers are trying to limit the high (and increasingly higher!) cost of employment litigation by obtaining insurance policies designed to insure against the most common claims filed by former employees. The policies are commonly referred to as Employer Practices Liability policies, or EPL policies for short.

Generally speaking, EPL policies cover employment claims, including claims of discrimination, sexual harassment, and wrongful discharge. Some policies will not cover any punitive award that is issued; others will. If approached in a knowledgeable fashion, EPL coverage can be very useful. However, employers should do their homework and establish important coverage goals before obtaining EPL coverage.

The facts about EPL policies

Before obtaining an EPL policy, an employer should evaluate the purpose for obtaining the coverage. For example, some employers obtain EPL coverage so that they do not have to deal with employment claims, and are content to have a third party, the insurance company, directing the defense of any employment claims that are asserted. Other employers view EPL coverage as a stopgap for a catastrophic award only and would prefer to handle most other employment matters internally.

In my practice, I have seen employers who are interested in using EPL coverage only for large verdicts refuse to take advantage of their coverage for fear that they will not be entitled to control the litigation and that they will not be entitled to have the counsel of their choice defend them. Obviously, paying for, but not using EPL coverage, is not cost effective. To avoid that scenario, an employer who seeks to use an EPL policy only for cases that have significant liability attached should consider three things:

the retention amount,
who has choice of counsel, and
who is entitled to control and settle the litigation.
Retention amounts

All insurance policies have a retention amount, or premium, that the employer is obligated to pay before the insurance kicks in. The retention amount can vary greatly and may impact how employment litigation is handled. For example, when the retention amount is low, an insurance company is more likely to insist upon having the right to pick legal defense counsel. This is due to the fact that the insurance company will have already negotiated the hourly rates of those attorneys whom it has approved to handle its referrals. By contrast, an employer who is agreeable to a higher retention amount may be able to negotiate for the right to choose its own defense counsel, on the premise that it is bearing a substantial portion of the defense costs and should therefore be able to have the defense counsel of its choice.

The right to pick defense counsel can be particularly important to employers who have well-established relationships with their counsel and trust their counsel to act in the employer’s best interest. While any attorney retained by the insurance company to handle an employment matter is ethically bound to represent the employer, including an attorney chosen by the insurance company, an employer may feel that the counsel it has used over the years will more zealously and more efficiently represent it than counsel that is hired for a onetime matter.

Practical significance

EPL coverage is becoming more and more common. Policies can be a source of security or a source of great stress. Before signing on the dotted line, an employer would do well to review any EPL policy it is considering with its existing employment attorney to ensure that the policy is comprehensive and meets the employer’s needs and coverage expectations.

Susan S. Sperber is a partner in RJ&L's Denver office. She provides assistance and counsel to clients on employment-related issues and has tried cases in both state and federal courts, before federal administrative agencies, and before arbitration panels in disputes involving the Americans with Disabilities Act, the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act. She can be reached at 303-628-9563 or by email at ssperber@rothgerber.com.

07-20-2006

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Rothgerber Johnson & Lyons

Is NAD's "Face-to-Face Fairness" for Real?
Many have long believed that anti-farmer bias is prevalent in the federal farm program appeal process. That process is conducted by the National Appeals Division, referred to as “NAD.”

Two individuals have served as director of NAD since 1995. The first was Norman Cooper, who served from 1995 until October 2002. The second and current NAD director is Roger Klurfeld. The approaches taken by these two individuals have been strikingly different. The good news for farmers is that Director Klurfeld’s promise of “face-to-face fairness” appears genuine.

NAD appeals process

Disputes are common between the government and farmers participating in federal farm programs such as the Conservation Reserve Program. When producers have not been treated fairly, they have the right to an administrative appeal, including hearings on the county, state, and national levels.

The first two levels of appeals are handled by the resident County Farm Service Agency (FSA) Committee and State FSA Committee. Hearings at the national level are conducted by NAD. There are two steps in the NAD appeals process: the first is an evidentiary hearing before an NAD hearing officer; the second consists of a review of the hearing officer’s written decision by the NAD director.

Concerning the first step, the presiding NAD hearing officer issues a written decision, typically within 30 days of an evidentiary hearing. Thereafter, the losing party can request that the NAD hearing officer’s decision be reviewed by the NAD director. During the late 1990s, many believed that the NAD director frequently and unfairly reversed pro-farmer decisions rendered by his hearing officers.

Director Cooper’s tenure, bias allegations

In 1999, Justin Cumming of RJ&L requested a federal court order requiring the U.S. Department of Agriculture (USDA) to produce Director Cooper’s record of decisions for fiscal years 1997 and 1998. During that time, more than 1,400 written decisions were rendered by the NAD director and his assistants. RJ&L believed that if it could obtain and review these decisions, a pattern of bias against farmers could be demonstrated.

In spite of lengthy government objections, a Colorado federal court judge granted the producer’s request. The information subsequently produced by NAD and the USDA provided compelling evidence of biased decision-making. For instance, of the more than 1,400 written decisions issued by the NAD director and his assistants in 1997 and 1998, less than 4 percent favored farmers.

In a later court action, RJ&L obtained a court order requiring production of Director Cooper’s decisions in 1999. Those documents revealed that if the NAD hearing officer’s decision was in the government’s favor, the affirmation rate by Director Cooper was as high as 97 percent. Conversely, if the hearing officer’s decision was in the producer’s favor, Director Cooper’s affirmation rate fell as low as 11 percent.

When deposed by RJ&L in 2000, Director Cooper could not explain the statistical disparity. Indeed, it is difficult to envision a good-faith explanation as to how the same set of hearing officers were almost always correct, according to Director Cooper, when ruling in favor of the government, but were seldom correct when siding with producers. Even Director Cooper conceded that there was no basis to conclude that NAD hearing officers err more often when ruling for producers than when ruling for the government. One possible explanation for the striking disparity is the taint of impermissible bias.

The question of equitable relief

Critical to farm program appeals is the issue of equitable relief. Equitable relief can be invoked to help honest farmers who made an honest mistake. The Secretary of Agriculture and the NAD director both have the authority to grant equitable relief to farmers when the producers acted upon inaccurate guidance provided by FSA representatives. However, Director Cooper exercised this authority on only two occasions that he could recall out of the 2,000 decisions rendered from 1997 to 1999.

Director Klurfeld’s tenure and his

promise of “face-to-face fairness”

Roger J. Klurfeld was appointed director of NAD in June 2002. Prior to the appointment, he was the assistant director for Legal Analysis, Office of Hearings and Appeals, U.S. Department of Energy. He had previously served as a hearing officer in cases involving personnel security clearance revocations and the DOE’s whistle-blower program. He also is a founder and president of Nutrition News Focus, publisher of a Web site and newsletter that provide analysis and comment on nutrition stories in the media.

Under Director Klurfeld’s guidance, NAD’s approach in dealing with producers quickly changed for the better. Shortly after his appointment, NAD began releasing written decisions of NAD hearing officers and the director on its Web site (www.nad.usda.gov). The Web site even includes a search engine allowing for quick identification of all decisions mentioning certain key terms. The Web site also includes a hearing guide, applicable USDA laws and regulations, and easy-to-follow instructions for filing an appeal. This type of information has aided producers with smaller claims in pursuing their own appeals. For those with larger disputes, retention of an attorney is still strongly warranted.

More recently, NAD began circulating pamphlets promising “Face-to-Face Fairness” for producers in NAD appeals. A review of several decisions written by Director Klurfeld suggests that his promise is sincere. Director Cooper could recall exercising equitable relief in only two of the 2000 decisions rendered from 1997 to 1999. In stark contrast, Director Klurfeld granted relief in favor of the farmer in 8 out of the 50 randomly selected equitable relief determinations. Even when equitable relief was denied, Director Klurfeld’s reasoning suggests that he was making a sincere good-faith effort to understand and analyze key issues. Many believe that type of effort was not evident in NAD decisions rendered prior to Director Klurfeld’s tenure.

Is NAD’s “face-to-face fairness” for real? Yes, it is. Though producers may still not prevail as often as warranted, NAD’s current approach is clearly more fair than in prior years. This is especially good news for those producers who find themselves in a dispute with the FSA. Should you have any questions concerning the NAD appeal process or disputes involving federal farm programs, please contact Justin Cumming.

Justin Cumming is an RJ&L partner whose litigation practice emphasizes agricultural, real estate, and probate issues. Justin currently serves as a trustee for the Colorado Cattlemen's Foundation and the Colorado FFA Foundation. He is also a member of the Junior Livestock Auction Committee for the National Western Stock Show and the American Agricultural Lawyers' Association, and a past chair of the agricultural Law Section of the Colorado Bar Association. Justin can be reached at 303-628-9526 or by email at jcumming@rothgerber.com

07-20-2006

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