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Torys LLP

Canada Ruling Favors Employers: Court Allows Sponsors Greater Flexibility on Pension Management
In Kerry (Canada) Inc. vs. DCA Employees Pension Committee, the Ontario Court of Appeal overturned a ruling last week that had challenged several common practices in pension plan management.

"It's a huge decision for pension plan sponsors," said Mitch Frazer.

The ruling provides useful guidance to employers.

In administering its defined benefit plan, Kerry (Canada) Inc., based in Woodstock, Ontario, paid administrative expenses from the pension fund and also took contribution holidays after taking into account the actuarial surplus of the plan. In 2000, the plan was amended to add a defined contribution component for new hires and existing members who opted to convert their past service entitlements to the defined contribution plan, with the company intending to use defined benefit plan funds for its contributions to the new plan.

Former employees who were members of the plan objected and asked the Ontario Superintendent of Financial Services to order the company to reimburse the plan for the administrative expenses and contribution holidays, and to deny registration of the amendment.

In March 2006, the Ontario Divisional Court ruled that Kerry (Canada) was not allowed to pay administrative expenses out of the fund because the historical plan documents and trust agreement did not feature language allowing the company to do so.

The divisional court also ruled that Kerry (Canada) could not use the surplus in the defined benefit plan to fund its defined contribution plan contributions because the amendment created two pension funds and the defined contribution members had no connection to the defined benefit plan and could not be legitimately given a beneficial interest in the funds from the defined benefit side.

Last week, the Court of Appeal ruled that the divisional court had erred in finding that the company was not allowed to pay expenses from the fund. The court found that there was no statutory requirement that the employer pay the expenses, and that the language of the plan documentation did not prohibit the payment of expenses from the fund, except those paid to trustees.

However, employers will still have to carefully analyze their historical trust and plan documentation to see if the language permits them to seek reimbursement of expenses from the plan, because some plans have prohibitions against the return of plan assets to the sponsor.

Also important is that the Court of Appeal's finding that amending the Kerry (Canada) pension plan to introduce a defined contribution component did not create two separate pension plans, overturning the divisional court's ruling that the amendments created two plans and that cross-subsidization—the use of surplus funds in the defined benefit plan to fund contributions on the defined contribution side—was impermissible.

The divisional court's ruling was problematic because a number of plan sponsors have converted from defined benefit to defined contribution plans in recent years, and have used defined benefit surplus to fund defined contribution plan contributions.

One of the benefits of making greater contributions to a pension plan than required is that an employer can take a contribution holiday and use surpluses to pay for the administration of the plan, Mitch noted. "The clients I've advised already are all happy, especially those who have converted or plan to convert because they were counting on being able to use the surplus."

If the plan is properly structured, defined contribution members continue to be members of the fund, which allows fund assets to be used to pay for their benefits, according to the Court of Appeal. In its decision, the court also reiterated that plan sponsors are allowed to use surplus to fund their contributions for ongoing pension plans, as dictated by a 1994 Supreme Court of Canada decision in Schmidt vs. Air Products of Canada Ltd.

06-11-2007

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Tharrington Smith, LLP

Jaye Meyer Elected To Board Of Law Examiners
Tharrington Smith family law attorney Jaye Meyer was recently elected by the North Carolina State Bar Council as a member of the Board of Law Examiners of the State of North Carolina. The Board's Liaison, Chief Justice Sarah Parker of the North Carolina Supreme Court, administered Ms. Meyer's oath during the Board's June meeting. The Board of Law Examiners was created for the purpose of examining applicants and providing rules and regulations for admission to the bar, including the issuance of licenses. The Board evaluates applicants' fitness to practice law, and in addition to reviewing applications and administering two bar examinations each year, the Board is empowered to hold hearings, issues subpoenas, and summon and examine witnesses under oath. Ms. Meyer will serve as one of eleven members on the North Carolina Board of Law Examiners.

06-11-2007

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Sonnenschein Nath & Rosenthal LLP

Head of Sonnenschein's Asia Pacific Practice Relocates to Silicon Valley
Sonnenschein Nath & Rosenthal LLP announced today that Yabo Lin, chair of its rapidly expanding Asia Pacific practice, is relocating to the law firm’s recently opened Silicon Valley office in Menlo Park, Calif. The move is spurred by the increased volume of cross-border legal work related to Asia that the firm is handling for clients in the technology, securities, manufacturing and other industries. Lin has been based in Sonnenschein’s Kansas City, Mo., office since joining the firm in 2005.

“The Asian market is increasingly important to our clients across industries, but especially those in the technology sector -- whether members of the venture capital community that are investing ever more heavily in China-based companies or technology and other corporations that are moving operations to Asia or buying companies in the region,” stated Lin. “The decision to move to Silicon Valley is driven by a desire for our Asia Pacific practice to better serve the legal needs of our clients located there and nationally.”

“Having strong capabilities in China and throughout Asia is critical to achieving the firm’s strategic objectives,” noted Elliott Portnoy, Sonnenschein chairman. “Yabo’s relocation to our new Silicon Valley office will accelerate the development of the Asia Pacific practice and help position us to become one of the leading law firms doing business in the region.”

Lin has counseled clients on domestic and international mergers and acquisitions, securities matters, venture capital and licensing transactions exceeding $5 billion in value. Born and raised in China, he was a licensed attorney in China before coming to the United States. Among his numerous China-related projects, he assists U.S. companies in the venture capital, investment banking, high tech and manufacturing business sectors, providing counsel in matters involving their acquisitions, funding, licensing, joint ventures, operations, intellectual property issues and cross-border disputes in China.

Lin serves on the six-member board of the American Bar Association’s Asia Rule of Law Initiative Council. In 2006, he received the National Asian Pacific American Bar Association’s Trailblazer Award, the highest honor given by the organization, for “making substantial and lasting contributions to the Asian-Pacific American community.” Lin also is an adjunct professor at Sun Yat-Sen University in Guangdong, China, and an advisor to the government of Guangdong Province.

Sonnenschein’s Asia Pacific practice currently numbers 20 attorneys, many of whom have lived and practiced law in Asian countries. They regularly counsel Asian, European and U.S. clients in a wide range of both inbound and outbound business dealings in China, Japan, Korea, Malaysia, Taiwan, Singapore, India and other parts of the Asia Pacific region.

06-11-2007

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Lommen, Nelson, Cole & Stageberg, P.A.

Causation Portion of Thimerosal/Autism Vaccine Proceeding Starts on June 11
After nearly five years of preparation, the first test case for claims in the Omnibus Autism Proceeding in the United States Court of Federal Claims began on June 11, 2007 in the U.S. Federal Circuit Courthouse in Washington, D.C. The Omnibus Autism Proceeding was established in July 2002 as a means to address the common issues of causality in claims brought under the National Vaccine Injury Compensation Program ("Program")1. Claimants allege that certain childhood vaccines and/or components of those vaccines (thimerosal in particular) cause neurotoxicity and other auto-immune reactions leading to neurodevelopmental disorders including autism. Under the Program, persons who have sustained an injury because of the receipt of certain vaccines can seek compensation for their injuries. Initiated in 1986, it is intended to be a no-fault, non-adversarial means for vaccine-injured persons to seek redress. Lommen Abdo became involved in "vaccine litigation" in 2002 when the firm filed its first thimerosal-related claim. The theory is that thimerosal, a mercury-containing preservative added to multi-dose vials of childhood vaccines, causes neurotoxicity in certain susceptible populations, which in turn leads to autism, developmental delays and other such neurological conditions. Lommen Abdo has 31 thimerosal cases filed under the program. Altogether there are more than 4,800 thimerosal-related cases filed.

Attorneys from around the country who represent thimerosal-injured persons with claims in the program have formed a Petitioners’ Steering Committee (PSC). The "Vaccine Court," the Court of Federal Claims, Office of Special Masters, charged with hearing these claims, established the Omnibus Autism Proceeding in July 2002. This was done to permit the PSC to first litigate the issue of general causation – does thimerosal cause neurotoxicity – before the merits of each individual claim is determined. Sheila Bjorklund, a Lommen Abdo attorney, is on the executive committee of the PSC and co-chairs the legal subcommittee.

The PSC has retained national experts in the areas of epidemiology, cell science, toxicology and medicine. Many of these experts have already published results of studies indicating a causal connection between thimerosal exposure and neuro injury. Research is ongoing. Additionally, the PSC and its experts are in the process of obtaining vaccine injury data in the control of the Centers for Disease Control, some of which was used and relied on by government researcher to pooh-pooh any connection.

Two theories of causation will be presented by the Petitioners’ Steering Committee, beginning in June 2007. One involves the synergistic effect between thimerosal containing vaccines and the MMR ,when given in close proximity, on the immune system and brain cells. The second theory addresses the multi-system effect of thimerosal on the body including the immune system and brain cell metabolism.

In the initial round of hearings, the thimerosal/MMR causation theories will be presented. The first test case will be presented in June, with two additional test cases to be presented by the end of 2007. The first hearing is expected to last approximately three weeks. While all of the final details regarding the hearing have not been ironed out yet, the courtroom will be open to the public. The proceedings will also be webcast via approximately 10,000 lines for persons around the country who wish to listen to the hearings without having to travel to DC to attend. The audio-feeds will be password-protected. The Office of Special Masters, Court of Federal Claims website will also likely have each day’s proceedings saved as a downloadable audio file, and this would be available to the public without a password.

Once the test cases on causation have been presented and ruled upon by the Special Masters, the remaining individual cases will be heard.

06-11-2007

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Flaster Greenberg

Flaster/Greenberg Launches Podcasts With Professional Podcasts LLC
Flaster/Greenberg has launched an audio "podcast," an Internet-distributed audio program, produced in cooperation with Cherry Hill-based Professional Podcasts LLC, a wholly owned subsidiary of Lubetkin Communications.

The podcast program was produced from a seminar presentation held May 22, 2007, at the Pyramid Club in Philadelphia, entitled "Strategies for Managing Personal Wealth Through Planned Giving."

Speakers included Michael P. Spiro, a tax, corporate and estate-planning attorney at the Cherry Hill office of Flaster/Greenberg. The program explores how recent changes in the tax laws, particularly the recently enacted Pension Protection Act, created new gift opportunities and financial incentives for charitable giving. The program also identifies and discusses the benefits of traditional tactics for managing personal wealth through charitable giving, including the use of charitable trusts and foundations.

“This effort reinforces our belief that podcasting is a very cost-effective way for us to provide important information about our capabilities and expertise. For more than a year, Professional Podcasts has been producing audio programs of the Rutgers Quarterly Business Outlook seminar that our firm sponsors, resulting in a tremendous response,” said Janet Levine, marketing and business development director.

06-11-2007

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Damon & Morey LLP

Damon & Morey Opens A Fourth Office In Clarence: Well Known Local Attorney Jeffery Palumbo Joins the Firm
Damon & Morey LLP announces the opening of a fourth location in Clarence, New York. The office, located at 9276 Main Street, joins three other offices in Western New York - the firm’s headquarters in Buffalo, as well as others in Batavia and Rochester.

“The new office offers convenience for our clients in the Northtowns, and it provides Damon & Morey with another opportunity to broaden our existing practice,” said Christopher Greene, Firm Chairman. The Clarence office will extend the reach of the firm’s Real Estate, Construction, Zoning & Land Use and Environmental Practice Groups - with opportunities for continued expansion in other key areas.

Well-known Western New York attorney Jeffery D. Palumbo has joined the firm and will act as the office’s local liaison. Mr. Palumbo will serve as Special Counsel in the firm’s Real Estate Department while also acting as the Chair of the firm’s Zoning and Land Use Practice Group. With over 20 years experience, Mr. Palumbo concentrates his practice on a wide variety of environmental and real estate issues, including real estate development, land use planning, use and area variances, zonings, site plan and subdivision approvals, residential and commercial sales, and State regulatory procedures.

“We are very excited that Jeff and his team are joining Damon & Morey. This is a great opportunity for all involved,” said Peter Marlette, Managing Partner. “We gain Jeff’s experience and expertise in a growing area of the firm’s practice, and he can offer his clients the resources that a full-service law firm can provide.”

In addition to Mr. Palumbo, the office will employ associate Brad J. Davidzik and three other team members.

The Clarence expansion represents the most recent development in the firm’s 90-year history. Recognized as the third largest law firm in Buffalo by Business First of Buffalo, Damon & Morey now has eighty-eight attorneys on staff and employs 196 people in Western New York. One of the fastest growing firms in Western New York, the firm has added 14 attorneys since October of 2006.

06-11-2007

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Bell, Boyd & Lloyd, L.L.C.

Bell Boyd Attorneys Volunteer for Women Everywhere
Attorneys from Bell, Boyd & Lloyd participated in the 8th Annual WOMEN EVERYWHERE (WE) Community Service Day on Friday, June 8, continuing the firm's support of the organization.

Volunteers helped the Little Village Boys and Girls Club on Chicago's west side where they spruced up the interior of the building. The Boys and Girls Clubs of Chicago serve over 17,500 young people in low income communities each year through their after-school and summer programs.

Women Everywhere organizes hundreds of volunteers each year to support 30 agencies across Chicago through education and service programs. The Community Service Day is organized through the efforts of nine women's Bar groups who plan and coordinate volunteer activities on behalf of high school girls, women and children in need.

Bell Boyd volunteers who participated in the program this year include: Carolyn Grunst, Amari Hatcher, Ben Jones, Rekha Hanu, Heather Boice, Carol Cachey, Jennifer Ambuehl, Kara Cenar and Claire Mariano.

Bell, Boyd & Lloyd has a rich tradition of public service, charitable and community involvement. Our founders one hundred years ago were devoted advocates for the underprivileged and civic reform, setting an admirable example for generations of dedicated Bell Boyd lawyers.

06-11-2007

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