Friday, September 28, 2001
Could Asbestos Have Saved More WTC Lives?
Did Junk Science, Design Error, Fear of Asbestos, and a Cessation of Asbestos Use at 64th Floor in WTC Lead to Pre-mature Collapse?
Asbestos Spray Expert Predicted Tower Collapse From Fire Above Asbestos-Protected 64th Floor
Steven Milloy -- Fox News -- 9/14/01
Until 30 years ago, asbestos was added to flame-retardant sprays used to insulate steel building materials, particularly floor supports. The insulation was intended to delay the steel from melting in the case of fire by up to four hours. In the case of the World Trade Center, emergency plans called for this four-hour window to be used to evacuate the building while helicopters sprayed to put out the fire and evacuated persons from the roof.
The use of asbestos ceased in the 1970s following reports of asbestos workers becoming ill from high exposures to asbestos fibers. The Mt. Sinai School of Medicine’s Irving Selikoff had reported that asbestos workers had higher rates of lung cancer and other diseases. Selikoff then played a key role in the campaign to halt the use of asbestos in construction.
In 1971, New York City banned the use of asbestos in spray fireproofing. At that time, asbestos insulating material had only been sprayed up to the 64th floor of the World Trade Center towers. Other materials were substituted for asbestos. Though the substitute sprays passed Underwriters Laboratories’ tests, not everyone was convinced they would work as well.
One skeptic was the late Herbert Levine who invented spray fireproofing with wet asbestos in the late-1940s. Levine’s invention involved a combination of asbestos with mineral wool and made commonplace the construction of large steel framed buildings.
* * *
Levine’s company, Asbestospray, was familiar with the World Trade Center construction, but failed to get the contract for spraying insulation in the World Trade Center. Levine frequently would say that "if a fire breaks out above the 64th floor, that building will fall down." That appears to be what happened Tuesday, according to Richard Wilson, a risk expert and physics professor at Harvard University.
The two hijacked airliners crashed into floors 96 to 103 of One World Trade Center and floors 87 to 93 of Two World Trade Center. Instead of the steel girders of the towers lasting up to four hours before melting, the steel frames of One World Trade Center lasted only one hour and forty minutes, while the steel frames of Two World Trade Center lasted just 56 minutes before collapsing.
ASBESTOS FIREPROOFING MAY HAVE BEEN REMOVED ENTIRELY:
"Reports have been conflicting about how much asbestos was installed in the twin towers, which were built between 1966 and 1973, or how much might have remained there at the time of the collapse. ... Guy F. Tozzoli, the physicist-engineer who headed overall development of the World Trade Center throughout its construction and remained there until 1987, says asbestos was only used in the first 39 floors of the Tower One, the first building struck Tuesday and the second one to fall. After that, other materials were used at an additional cost of over $400,000, he says. 'There was no asbestos used anywhere else in the buildings,' says Tozzoli, who currently is president of the World Trade Center Association." (David France and Erika Check, "Asbestos Alert", Newsweek/MSNBC, Sept. 14). (Source: OverLawyered.com, 9/20/01)
"Subsequently, the asbestos was encapsulated in a honeycomb of plastic, and in the early '80s, after a 'fastidious, painstaking process,' it was entirely removed, he [Tozzoli] says. 'If they are finding asbestos in the ash, it is not coming from us.'" The Port Authority, the buildings' owner, engaged in prolonged litigation with asbestos manufacturers and its own insurers seeking to shift to them $600 million in costs of asbestos abatement. (British Asbestos Newsletter, Spring 1996, item #2; Mound, Cotton, Wollan & Greenglass, "What's New", "Cases"). Reader Maximo Blake writes to say: "To the best of my knowledge a majority of the asbestos coating the beams and elsewhere was removed in the 1980s. My information comes from a Port Authority employee who supervised the removal." (Ibid.)
And, to add to the controversy, the New York Times quotes specialists with a range of opinions on whether the change in materials might have made a difference. (James Glanz and Andrew C. Revkin, "Did the Ban on Asbestos Lead to Loss of Life?", New York Times, Sept. 18 (reg)).
See Fox News' sequel article "Asbestos Column Raised Awareness," with additional information, by Steven Milloy, Sept. 20.
Read more . . .
Force majeure fights.
Do the events of September 11 constitute a material change in circumstances, thus entitling businesses to get out of merger deals and other contractual obligations?
"Collateral Damage", Michael Freedman and Daniel Kruger, Forbes, 10/15/01
Squabbling over that issue "should keep attorneys busy for years. 'Unfortunately, there will be litigation, whether it's meritorious or not,' says James Salzman, a law professor at American University."
Read more . . .
Insurers Will Pay Big, but Not Without a Fight
Jenna Greene -- Legal Times -- 9/19/01
With billions of dollars in claims on the line, fights over insurance coverage in the wake of the World Trade Center disaster are all but inevitable, most insurance lawyers agree. What remains unclear, though, is how numerous and significant these lawsuits will be and how fast insurers will move to settle claims.
Read more . . .
Calculation of Losses, Liability to Be Major Insurance Issues in Wake of Terrorism
Alan Fisk -- The National Law Journal -- 9/28/01
As the insurance industry braces itself for tens of billions of dollars in claims following the Sept. 11 terrorist attacks, some insurance experts predict there could be considerable litigation over the claims. Although many major insurers say they won't try to avoid payouts by invoking the "act of war" exclusion in policies, lawyers and insurance experts say there are many other gray areas over what losses are covered.
Read more . . .
Pennsylvania Law School Applications on the Rise
Increase comes amid economic downturn
Jeff Blumenthal -- The Legal Intelligencer -- 9/28/01
Pennsylvania law schools, like law schools nationwide, are seeing an upswing in both the number of students accepting offers of admission for the current year and applications for the coming year. And most school officials agree the current economic downturn is largely responsible. Says one dean, "I think people hope they can wait out the recession in law school for three years" and be more marketable with a law degree.
Read more . . .
Delta Airlines to Ask Outside Counsel to Cut Fees
In-housers Seek to Avoid Layoffs by Eliminating "Discretionary Legal Work"
Janet L. Conley -- Fulton County Daily Report -- 9/28/01
Rather than immediately cutting jobs in its in-house legal department, Delta Air Lines will ask its outside counsel to cut their fees. Walter A. Brill, Delta's vice president-associate general counsel and one of the company's 44 in-house lawyers, says the legal department has recommended to senior executives that there be no layoffs or furloughs as part of the 13,000 jobs cuts announced Wednesday. The department instead will attempt to eliminate as much in-house and outside discretionary legal work as possible.
"Our philosophy is that we can do work a lot more efficiently and less costly in-house than outside. The way we manage our costs typically is to limit our use of outside counsel," he says. "One thing we will probably do is seek some rate reductions."
Those reductions will be spread equally among the company's outside law firms, Brill says. They'll be based on Delta's relationship with each firm and the type of work.
Read more . . .
Thursday, September 27, 2001
Attacks Likely to Spur Chapter 11 Bankruptcies
More bankruptcies are probable in a year already full of troubles
Maureen Milford -- The National Law Journal -- 9/27/01
Even before the Sept. 11 terrorist attacks, bankruptcy and insolvency practices were booming, with record Chapter 11 bankruptcy filings during the second quarter of this year. Now, with concerns of an even weaker economy, legal experts predict that bankruptcy law is moving into an unprecedented era resulting in firms raiding other firms, higher salaries for partners and brutal work schedules.
Read more . . .
Saturday, September 22, 2001
Managing Law Firms' Self-Generated Documents -- Storing Electronic Data, Awareness of Documents' Associated Change Histories, and More
Preparation and Procedures Can Avoid Countless "Where's Waldo?" Expeditions
Jennifer U. Baker -- Texas Lawyer -- 9/24/01
While electronic information has greatly enhanced the speed and proficiency of corporate operations, it has opened a Pandora's box of issues that have plagued corporate litigation and regulatory investigation response procedures.
Electronic records, if haphazardly managed, can expose a corporate legal department [and law firm] to compounded discovery costs and potential sanctions in a litigation or regulatory environment. To reduce such risks, it is important to understand how electronic documents differ from hard copy documents [and to prepare in advance].
Read more . . .
The 2001 General Counsel Salary Survey -- What Your Clients' Top In-house Lawyers Earn
law.com -- 9/24/01
And the Winners Are...
The Salary Survey of 349 GCs
The Grass is Greener
GC Cash Compensation by Industry
A Piece of the Action
GC Cash Compensation as a Percentage of Company Revenue
Top Ten Salaries
Top Ten Bonuses
Top Ten Options
Top Ten Take-Home Pay
Law Firms' Computer Systems can be the "Weakest Link" in Client Information
Hackers Focusing on Law Firms Computers to Exploit Security Vulnerabilities
David Brauer -- The American Lawyer -- 9/24/01
On the TV show "The Weakest Link," contestants go after the most vulnerable fellow player. Hackers play a similar game, but it's neither trivial nor televised. Frustrated by corporations' strong security defenses, hackers are probing for a weak link, and they may have found it: law firms. If they can't break through the corporate walls in cyberspace, perhaps they can attack the counselors to corporate America.
* * *
Law firms have a long tradition of maintaining client confidences, but not necessarily in the online world. According to the 1999 ABA Legal Technology Survey Report (the latest available), more than half of firms surveyed did not take any security precautions when communicating online. Legal ethics rules don't require lawyers to encrypt e-mail, but that doesn't mean that lawyers shouldn't. As Alan Brill, senior managing director of New York-based investigative agency Kroll Associates, notes, "E-mail is more like a postcard than a letter. As it traverses the Net, every node it passes through has the capability to read it."
* * *
Eric Steele, a lawyer and technology consultant with Chicago's Steele Scharbach Associates, says "Law firms are much more conservative [about technology] -- and they're all small business, by corporate standards," he says. "They tend to be less sophisticated, less protected."
They also tend to be cheap about things that they can't expense to clients, like computer security. "I see trouble all over L.A. The partnership model precludes spending a lot of money on IT -- any dollar spent [there] does not go into the partner's pocket," says Lee Schwing, director of information technology at Century City, Calif., entertainment boutique Ziffren Brittenham Branca.
* * *
One of the greatest vulnerabilities for firms is lawyers who work from home. It's not the stodgy partner with the slow dial-up connection who's at risk but the propeller head with high-speed Internet access. High-speed home Internet accounts (whether they are offered via cable modem or DSL service) are different from regular dial-up accounts in two respects: (a) they are always on, and (b) their Internet address [the "IP" number] doesn't change. These give hackers both time and opportunity to hack away. Unless the home user has a firewall in place, it is relatively easy to access his or her hard drive and possibly the given firm's servers, too.
* * *
Clients are partly to blame. "I would think clients would have insisted on checking [firm security precautions], but I've been shocked no one has," says Ziffren Brittenham's Schwing, whose firm represents Microsoft Corporation, DreamWorks SKG, and other otherwise tech-savvy companies. [Look for that to change in the wake of recent events, including the NIMDA virus that disrupted Internet communications this past week and infiltrated computer systems running Microsoft Windows operating systems and servers running Microsoft's IIS, which many law firms' servers do.]
* * *
A large firm can easily drop $250,000 on buffing up its security systems. [John Tredennick Jr., a former litigator and current chief executive of Denver's CaseShare Systems, a firm automation and collaboration vendor] says that a professional security audit (including "friendly" hackers hired to probe system's weaknesses) runs $40,000-$120,000. For bulletproof security, there ought to be two firewalls and three servers -- including a dataless "demilitarized zone" in the middle -- separating lawyers from the outside world. The setup can cost $100,000, and that's before the expense of software to patrol for hack attacks.
For firms with more modest aspirations, many of the strongest security measures are free. The best defense is an ugly password -- composed of lots of random characters. The second best is a password that changes every month, or more often.
* * *
It also pays to keep an eye on the real world. Are temporary employees given passwords that let them look at key documents? Says Roster: "We go through this craziness of conflict checks on the lawyer side, but no one screens the support staff who are moving around all the time." It sounds like time for some due diligence.
Read more . . .
Thursday, September 20, 2001
Corr Cronin Wins Big for ExxonMobil
Defeats Dealer Class Action and Consumer Class Action
9/18/01
Corr Cronin was successful this week in winning a total summary judgment of dismissal of all claims in a class action case filed against Exxon. Essentially the plaintiffs were trying to claim that for years in Eastern Washington Exxon had sold misbranded gasoline (e.g., charged premium prices for regular gasoline). Corr Cronin partner Guy Michelson handled the case and argued the motion for Exxon; associate, Kelsey Joyce, assisted with the briefing.
Corr Cronin client ExxonMobil sells gasoline in Washington State through independent distributors. Gasoline is sold to independent distributors at commercial "racks" which may also sell a number of other brands of gasoline. The distributors are then free to sell the gasoline to branded Exxon service stations with whom it establishes contracts. British Petroleum follows the same practice.
One such independent distributor in Eastern Washington was Ed Glenn Distributor, Inc. ("EGD"). EGD was an independent distributor for both ExxonMobil and BP gas. Plaintiffs alleged that EGD misbranded gas by delivering BP gas to Exxon branded stations and visa versa, and by delivering low octane gas to high octane pumps. A disgruntled former truck driver for EGD reported this "misbranding" in March 1999. ExxonMobil investigated the allegations, found them to merit attention, and immediately attempted to terminate EGD's distributorship.
In January 2000, plaintiffs filed a class action lawsuit in Chelan County Superior Court, seeking to certify a dealer class consisting of 20 to 30 Exxon/BP service station owners purchasing gasoline from EGD, and a consumer class of several thousand consumers who purchased gasoline from these stations over the past 10 years, seeking to recover millions of dollars in alleged damages. The suit named EGD, and also named ExxonMobil and BP for failing to adequately monitor and audit EGD's activities in order to prevent or detect misbranding. Causes of action were asserted against ExxonMobil/BP under a potpourri of legal theories including agency, breach of express and implied warranties, fraud, criminal profiteering, negligence, and alleged violations of the Washington Consumer Protection Act.
Following targeted written and deposition discovery, and prior to the hearing on class certification, ExxonMobil and BP filed a motion for summary judgment seeking to dismiss all of plaintiffs claims against them, leaving EGD in the litigation. The thrust of the motion was that ExxonMobil was under no legal duty to monitor or audit the independent distributor, and that plaintiffs had failed to demonstrate any actual damages as a result of misbranding. On September 18, 2001, following 2 and 1/2 hours of oral argument on the motion, the Honorable John E. Bridges dismissed plaintiffs claims against ExxonMobil and BP in their entirety. Needless to say, the client is pleased.
Wednesday, September 19, 2001
Insurers fret over who will be liable for losses
Otago Daily Times -- 9/18/01
London: Insurers could be pushed to the limit by billions of dollars in claims from Tuesday's attacks on the United States, while airlines could face potentially crippling liability costs, experts say. The insurance industry is trying to assess the cost of damage from the hijacked aircraft that demolished New York's World Trade Centre and slammed into the Pentagon on Tuesday.
But there is confusion over who will foot the bill. Experts said the unprecedented nature of the attacks raised questions about liability - whether the buck should stop with the airlines or airports, airport security firms or the US government. It is not clear whether United Airlines and American Airlines could be liable for the havoc caused by the collisions.
"Are the aviators responsible through their liability policies for the building damage?" Robert Hiscox, chairman of Lloyd's of London underwriter Hiscox Plc, asked. "Nothing is clear. There is no legal precedent for how it's paid." The view is it will end up in the courts and possibly take years to untangle the complex web of insurance claims. * * * The total cost has been estimated to be $10 billion to $15 billion or more.
Read more . . .
Paxil -- 2nd Class Action Lawsuit
USA Today -- 9/18/01
Los Angeles (AP) — A second lawsuit seeking class action status has been filed against the makers of the anti-depressant Paxil. The lawsuit alleged that the drug is addictive and that GlaxoSmithKline failed to warn users of serious side effects suffered after discontinuing its use. It seeks to create "a court-supervised fund to provide medical services to assure that class members receive prompt and proper diagnosis and treatment in order to get off of Paxil safely."
* * *
Court documents also allege the company has "known for years" that the drug is prone to causing withdrawal reactions, but because it has suppressed that information many physicians mistakenly believe the symptoms are due to a relapse and sometimes increase the drug's dosage. People who have stopped taking Paxil claim they suffered symptoms ranging from electric-like shocks, pain, dizziness, nausea and fever to anorexia after discontinuing use of the drug. In June, a jury in Wyoming awarded $8 million in damages to the family of a man after determining that Paxil caused him to kill his wife, daughter and granddaughter before committing suicide. A federal judge last month denied a request for a new trial in the wrongful death lawsuit.
Read more . . .
Tuesday, September 18, 2001
ATLA Calls for Lawsuit Restraint in Attacks' Aftermath
Howard Mintz -- Mercury News -- 9/17/01
The grim aftermath of this week's terrorist attacks on New York and Washington inevitably will include one trademark American response to tragedy: lawsuits. Mindful of the nation's open wounds, the American Trial Lawyers Association, the country's largest group of personal injury attorneys, last week issued an unprecedented call for at least a temporary moratorium on any lawsuits related to the attacks. But legal experts, and particularly lawyers who specialize in airline disaster suits, anticipate that the families of the victims ultimately will go to court to seek redress.
Read more . . .
Saturday, September 15, 2001
Eight Missing From Law Firms After Attack in New York
The National Law Journal -- 9/17/01
Attack Has Widespread Impact on Legal System
Margaret Cronin Fisk -- The National Law Journal -- 9/17/01
Two of the hardest hit agencies Tuesday were the New York offices of the Securities and Exchange Commission and the Equal Employment Opportunity Commission. Both were housed in 7 World Trade Center -- the third building to fall on Sept. 11. The loss of documents is expected to mean months of extra work by the SEC and the EEOC to replicate or retrieve lost notes, depositions and interviews.
Read more . . .
A New Landscape as U.S. Seeks to Protect Itself
Marcia Coyle and Bob Van Voris -- The National Law Journal -- 9/17/01
The terrorist attacks in New York and the Pentagon shut down federal and state courts throughout the nation, stranded lawyers in towns far from their home offices and destroyed untold thousands of legal documents. But what will the legal landscape resemble once the debris is collected? Predictions and speculations are already mounting as to what measures lawmakers will take, and what price freedom will pay.
Read more . . .
The New Electronic Demonstrative Evidence Winning Cases
Trial lawyers increasingly are wowing judges and jurors with computerized graphics and other high-tech exhibits
Sue Reisinger -- Miami Daily Business Review -- 9/17/01
Eugene E. Stearns believes his use of computerized exhibits helped win his client a $500 million verdict against ExxonMobil earlier this year. "This is the future of litigation," he says. Actually, that future is already here. Courtrooms across the country are being outfitted with a wide array of electronic tools, which raises perplexing questions about the admissibility of simulated evidence and re-enactments.
Read more . . .
Friday, September 14, 2001
Disaster Displaces 14,000 New York Lawyers
Daniel Wise -- New York Law Journal -- 9/14/01
More than 14,000 lawyers have not been able to get to their offices since a terrorist attack obliterated the twin World Trade Center towers Tuesday, according to data released by the Office of Court Administration. The OCA data revealed a staggering amount of disruption in the ability of lawyers to function. The 14,000 displaced lawyers make up 10.3 percent of attorneys in the state and 19 percent of the lawyers in New York City.
Read more . . .
Thursday, September 13, 2001
Waiting for the Dust to Settle
law.com -- 9/13/01
In the somber aftermath of Tuesday's tragedy, law firms in the World Trade Center and their affiliates had a single priority: making sure everyone was safe and accounted for. Many firms have already found other office space, while others vow to rebuild "from the ground up." Meanwhile, the ripples are felt nationwide, as legal communities in California and Florida struggle to regain their balance.
Wednesday, September 12, 2001
Map of Courts and Some Firms in the Vicinity of WTC
Largest Law Firms in the World Trade Center Towers
List of WTC Tenants
Law firms indicated on the list are (with floor):
NORTH TOWER:
Anne Pope, Law Offices of Attorneys 35
Berel & Mullen Attorneys 33
Brown & Wood, L.L.P. Attorneys 54,56-59
China Patent & Trademark USA Attorneys 29 -- website
David Peterson Attorneys 84
Drinker Biddle & Reath Attorneys 89 -- website
Geiger & Geiger Attorneys 78
Hill Betts & Nash LLP Attorneys 52 -- website
Jun He Law Office, LLC Attorneys 77
Keenan Powers & Andrews Attorneys 53
Law Offices of Roman V. Popik Attorneys 21
Leeds & Morrelli Attorneys 52
Richard A. Zimmerman, Esq. Attorneys 52
Serko & Simon Attorneys 33 -- website
SOUTH TOWER:
Abad, Castilla and Mallonga Attorneys 18
Harris Beach & Wilcox LLP Attorneys 85 -- website
James T. Ratner, Law Office of Attorneys 15 -- website
Law Office of Joseph Bellard Attorneys 28
Thacher, Proffitt & Wood Attorneys 20,38-40 -- website
Also, see the WTC Register -- Legal Services.
Law.com coverage of the WTC Disaster
Law Firms Account for Employees at World Trade Center
American Lawyer Media -- 9/12/01
Anecdotal accounts of what happened at law offices in the WTC.
Specific Firms
Harris Beach's website carries the following news:
The law firm of Harris Beach LLP was shocked earlier today with the news of the attack on the World Trade Center towers in New York City. Harris Beach operated an office on the 85th floor at Two World Trade Center, the second tower struck in the attack. A total of 113 employees, including 50 attorneys, worked in the firm's New York City office.
"This is a tragedy that has shocked this firm and the entire nation," said Gunther K. Buerman, managing partner of Harris Beach. "Our hopes and prayers are with all our fellow employees, their families, and with everyone that may have been in or around the buildings this morning. Right now, for all of us, people are first, business is secondary. It is indeed a time when we need to lock arms and get through this difficult time together."
The firm has established a phone tree and has been working all day to locate or determine the whereabouts of the 113 employees associated with the World Trade Center office. Those efforts will continue until the firm can account for all employees. At this time, the firm has received no confirmed reports of casualties among Harris Beach employees.
"Everyone here is absolutely devastated by this terrible act of violence," said Frederick H. Fern, managing partner of the New York City office of Harris Beach. "These are people that we work with every day. People that are our colleagues and friends. It has shaken all of us in ways that are difficult to even put into words."
Sidley Austin Brown & Wood's 312 lawyer office was one of several law offices destroyed yesterday in the collapse of NYC's WTC. They report: "Our office in the World Trade Center has been destroyed, but based upon our current information, which we must stress is preliminary, we are unaware of any of our personnel who were casualties of this terrible tragedy. Similarly, and again on a preliminary basis, we believe that none of our people worldwide have been casualties in any of the related acts of terrorism."
Thatcher Proffitt's website carried no news of the whereabouts of its 135 attorneys and additional employees as of this morning, nor did Drinker Biddle's website (8 attorneys).
Tuesday, September 11, 2001
50 Tips To Help You Win Client Competitions
Ann Lee Gibson, Ph.D. Ann -- Ann Lee Gibson Consulting -- El Prado, NM
Competitions to select outside legal counsel are heating up again. For law firms, the outcomes of bigger contests drastically affect revenues. For individual lawyers, the result of a single competition can be a make-or-break career event.
The resurgent interest is largely driven by companies’ need to control legal costs in a time of declining economic growth. Corporate counsel are holding so-called convergence competitions to reduce the number of law firms they work with from "many" to "few" (usually by a factor of 10—from 100 firms to 10, or from 10 firms to 1). And, as in the mid-1990s, in-house counsel know that reducing the number of outside firms also improves professional intimacy and efficiency. Substantive shelf-life issues are arising as well. Legal departments that held convergence competitions three to seven years ago are asking, would a different grouping of law firms make more sense today?
It’s quite a coup to take the crown in one of these contests. What are the secrets to victory? Be they large, midsize or small law firms, the big winners in high-stakes competitions triumph because they understand how the game is played and they play to win. Here are the rules they play by.
ESTABLISH A COMPETITIONS PROCESS
1. Create and follow a firmwide competitions process. Base it on a one-size-fits-most set of competition best practices. Make this roadmap available to everyone in the firm— especially lawyers, paralegals and legal support staff. Without such a process, the well-intentioned efforts of lone rangers in your firm will result in chaos, procrastination, secret information silos and lost business.
2. Recognize procrastination as a worst practice. To avoid last-minute scrambles, adopt the following policy: "Within 24 hours of receipt, every lawyer in our firm who receives a request for proposal (RFP) must send a copy of the RFP to the firm’s marketing director and the managing partner."
3. Become selective and strategic about the competitions you enter. Don’t respond to an RFP unless you believe the work will be strategic, enjoyable and profitable. Moreover, don’t respond unless your firm is qualified and available to do the work.
4. Don’t compete in competitions that are wired. Ditto for competitions that require repetitive rounds of open bidding—unless your firm is prepared to compete only on the basis of price. Doing so will deplete your lawyers’ energy and willingness to compete for good work in bona fide contests.
GATHER INFORMATION ABOUT THE CLIENT
5. Parse the RFP carefully. What does it tell you about the prospective client’s goals, selection criteria, terms, language, style and culture? What questions does it raise but not answer?
6. Have the most accurate information about the client’s goals, culture, challenges and legal needs. This is the secret to winning a bona fide competition. It will cost you nothing to guess about these topics—but to guess wrong could be really expensive.
7. Do your homework. Learn more than the RFP tells you. Research the client company’s Web site and other publicly available information sources.
8. Interview the client in advance. Gain an even greater competitive edge over other law firms by interviewing the prospective client to gather more information and confirm the information you have gathered in your research. Most clients that are serious about finding the best law firm will talk to firms that request an interview before submitting a proposal. Firms that won’t meet with you probably are signaling that the competition is a sham.
DEVELOP A WINNING SERVICE STRATEGY
9. Explain how you can solve the client’s problems. Clients want to learn much more from your proposal than your qualifications. They want you to propose solutions. Most firms fail to propose solutions—they confuse a "request for proposal" with a "request for qualifications."
10. Custom-tailor each plan. Each service strategy should be tailored for the client and should include (a) a legal strategy, (b) a staffing plan, (c) a service plan and (d) a pricing plan.
11. Develop a legal strategy for this client. Using the information you have gathered about the prospective client’s needs (from the RFP, your research and interviews with the prospective client), determine the legal and legal management strategies that will best help this client meet its needs.
12. Walk the talk when you present your strategy. Clients will look favorably on your firm when they find specific legal and business solutions, hypotheticals, legal work product and creative problem solving in your proposal.
13. Develop a staffing plan for this client. Based on the client information you have gathered, select the appropriate lawyers and staff to help the client in this engagement.
14. Don’t bait and switch with senior partners. In other words, don’t promise to staff the client’s matters with senior partners who are too busy to work for this client. Clients will see through this ruse, knowing they’ll probably deal most often with younger partners and associates.
15. Carefully choose your team leader. The client relationship manager should be someone who has the right expertise, is available to do the work and can establish rapport with this client. The other lawyers who will work with this client should have the right expertise for the role they’ll play, understand the client’s industry and business and be available to do the work.
16. Develop a service plan for this client. Based on the client information you have gathered, determine how this client would like to be served. What kind of feedback and communication schedule does the client need? What technology tools and services is the client looking for? What added values can the firm offer that this client will appreciate, and even prize?
17. Leverage your firm’s technology. The larger corporate clients view your firm’s technological tools—client extranets, legal knowledge bases, case management software, document automation software, videoconferencing resources, secure e-mail communication, document transmission capabilities — as more critical than ever before.
18. Remember that high-touch is just as important as high-tech. Clients will appreciate it when you offer lawyers’ home and mobile phone numbers. Many clients also respond well to invitations to kickoff retreats and face-to-face client satisfaction interviews conducted by the firm’s management or marketing department.
19. Develop a pricing plan for this client. Based on the client information you have gathered, what pricing will work for both the client and your firm? One of the worst results you could get in a competition would be to win work that is unprofitable.
20. Respond to requests for alternative pricing strategies with specific proposals. When clients ask for alternative pricing strategies these days, they are most often interested in fixed fees and shared-risk fee arrangements. Fixed-fee proposals typically include adjustment mechanisms, so neither the client nor the law firm is unduly penalized or rewarded if legal workloads vary considerably from initial expectations.
DRAFT THE PROPOSAL
21. Tailor the document to this client’s specific needs. Winning proposals are built to order for each client. In post-competition debriefings, in-house counsel commonly complain, "Many of the proposals contained what looked like off-the-shelf materials. Instead, we were looking for proposals tailored to our issues, questions and needs."
22. Remember that the executive summary is the most important chapter in your proposal. It’s the only chapter you can be sure the prospective client will read. Most reviewers visually scan proposals; they don’t read every word. You can be sure that the more proposals that are submitted in a competition, the less any of the proposals get read.
23. Make the executive summary a true summary of everything in your proposal. This means your legal strategy, service plan, staffing plan and pricing plan. It should not be the storied history of your law firm and the now-deceased men who founded it.
24. Keep your proposal short. When asked which proposals they read first, corporate counsel almost always say, "The shortest ones."
25. Create an eye-catching package. The proposals that clients read first will probably be the ones they remember most. Fashion proposal covers and packaging that are attractive and attention grabbing. Your proposal cover should persuade reviewers to pick up your proposal (often from a stack of 20, 50 or more) and read it first.
26. Remember that the work approach chapter is the second most important chapter. Your proposal’s work approach chapter needs to tell how you’re going to help the client solve its problems through the service strategy you tailored for this specific client. Give it the priority treatment it deserves.
27. Try to focus on the client. Draft your proposal to home in on the prospect’s needs, wants and preferences and your solutions for this client— rather than focusing overly much on your firm’s boilerplate qualifications. This may sound counterintuitive, but the client would much rather learn specifically how you propose to help solve its problems, not how many of your lawyers were law school journal editors decades ago.
28. Be specific when you do describe your firm’s and lawyers’ qualifications. Clients care little that you think your lawyers are "highly-educated, cost-effective and collegial" or that your experience is "unique, complex and leading-edge." When you talk about qualifications, specifics persuade and sell. Foggy generalities raise doubts. Don’t confuse and irritate the client with puffery.
29. Describe the lawyers who will really be working on the matter. Clients will want to read about these people and meet them at the beauty contest interview.
30. Bring your proposals to life with vibrant verbs and readable language. Most law firms’ proposals—and firm marketing materials, for that matter—discourage even valiant readers.
31. Write your proposals in straightforward, easily readable language. Use active verbs. Sentences in your proposal should average 15 to 20 words in length. Tell your story using simple language instead of ornate, long-winded prose.
32. Avoid legalese. When in-house lawyers are debriefed after competitions, many complain that proposals contain "too much legalese." They say, "I didn’t know what the writers were saying, and I got the feeling they didn’t know either."
33. Remember—proposals are marketing documents. They shouldn’t look like contracts or briefs. Many winning proposals use color, graphics and photographs and have plenty of white space.
34. Make the writing, spelling and punctuation above reproach. Design well-written, attractive proposal templates and persuasive boilerplate language. Create a comprehensive proposal database free of typographical errors.
MAKE THE INTERVIEW A DIALOGUE AND A DEMONSTRATION
35. Have a two-way conversation. A good beauty contest interview is a dialogue between your lawyers and the client about the client’s issues. It’s not a deposition by the client. And it’s not a filibuster by your firm’s team.
36. Know when to hold your tongue. Your team should talk less than 50 percent of the time during an interview. (Really. I’m not kidding.) Did you know that the most successful sales people in other professions and industries talk no more than 15 percent of the time they are "selling"?
37. Demonstrate how your firm’s lawyers would perform as the client’s legal advisers. Clients will judge you by how you behave during the interview, not by what you say about yourselves. Do you ask good questions? Listen well? Do you offer creative solutions? Can you walk the talk of being a good advisor?
38. Send younger partners, associates and paralegals. You might even consider sending IT staff, marketing staff or the lead attorney’s secretary. When firms send an inappropriate team to the interview, it’s usually because only corner office partners were chosen. Most clients want to meet the people who will be working on their matters.
39. Establish an affinity with the client. During the interview, the team leader in particular should establish rapport by demonstrating confidence (not arrogance), enthusiasm, authenticity, active listening and a communication style compatible with the client’s style.
40. Mirror the client’s team. Your firm’s interview team should mirror the client team in number, gender, spoken language, body language, communication style and dress.
41. Avoid most of your impulses to tell war stories. Your firm’s team members should concentrate on this client’s issues, not other clients’ issues. Prospective clients are much more interested in their problems than in someone else’s tribulations.
42. Draw relevant lessons from prior experiences. When members of your team do talk about their past experiences with other clients, they should always bridge back to this client’s situation. For example, you might say, "The lesson we took away from that experience is that we must learn early on what is most important to you in handling and disposing of your case."
43. Ask the client worthwhile questions. Throughout the interview, your firm’s team should ask worthy questions about client issues—not questions that could be answered if you had bothered to visit the client’s Web site. By asking questions, you deepen the level of dialogue between you and clients about their legal and business issues.
44. Organize your materials for clarity. Your interview visuals and handouts can be safely organized around the structure of the RFP or the client’s evaluation criteria.
45. Don’t confuse beauty contest visual aids with speakers’ notes. Words on a screen are seldom as communicative or memorable as pictures, schematics, diagrams, timelines and charts.
46. Present to clients using the same visual media they use internally. Ask the prospective client: "When you’re presenting to each other at XYZ Corporation, what kinds of audiovisual aids do you use? Why? Because we’re thinking of using PowerPoint [or foam boards or overhead transparencies or a video or interactive DVD or Shockwave/ Flash Web-based presentation] during our interview presentation. We’re wondering if you’d be comfortable with that?"
47. Use visual aids to explain your strategies for solving the client’s problems. Using visuals at this point in the discussion will clarify your proposed strategies and focus the client’s attention on the discussion. "In this next slide, you’ll see the specific steps we propose to take diligence about the target company in your upcoming acquisition." This is when visual aids are most powerful.
48. Rehearse with the full team. Rehearsal with feedback is the key to your team’s successful interview. This means actually role-playing the interview with mock interviewers. Most teams are nervous about rehearsing and must be coaxed to do so; otherwise, they will sit around and jawbone about the interview. Less successful are those teams who avoid rehearsing by revising and re-revising the presentation slides.
DEBRIEF THE CLIENT AND YOUR TEAM
49. Debrief the interview team and the client after every competition. Follow this procedure win or lose. Only by learning what the firm did well and what it needs to do better can the firm improve its performance in future high-stakes competitions. Losing a big competition and not debriefing the client is like losing the Super Bowl and failing to watch the game film afterward.
50. Have someone who wasn’t a member of the firm’s interview team debrief the client. Another lawyer or a member of the firm’s marketing department can do this. It’s easy to get clients to agree to give you this feedback—especially if you ask for this favor early on, when you first accept their invitation to compete.
Cash In on Opportunity
After five years of go-go economic and legal activity, corporate counsel perceive that the pendulum is swinging back toward the "oversupply" side of the arc for outside counsel capacity. Many are taking this opportunity to look around for new players and alternatives in legal services. If you know the rules of the game, your firm stands to win big.
New Jersey Shifts Burden of Proof in Auto Design Cases
Once plaintiff shows defect was a cause of injury, manufacturer must show how much of the harm would have occurred anyway
Charles Toutant -- New Jersey Law Journal -- 9/11/01
The New Jersey state judiciary has issued model civil jury charges that implement a new standard of proof in automobile crashworthiness cases, requiring automakers to prove their vehicles provide occupants adequate protection. The model instruction, which comes amid an upswing in crashworthiness claims, asks the jury to determine whether the vehicle as designed was crashworthy based on the principles of reasonable, safer alternative designs.
Read more . . .
Sunday, September 09, 2001
Do Autism and Vaccines Have a Connection?
Portland, Oregon (KPTV) -- More children are being diagnosed as autistic than ever before, and with the numbers rising, parents are looking for answers. The Mead family of Beaverton is one of them. Their two-year-old son William was bright and happy, talking and walking last year. But they say he began to dim, like a light bulb slowly going out. Finally, they say, he began to spin and grunt, and was diagnosed as autistic.
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"I think there's enough evidence here to warrant a serious look at this," says Dr. Jim Laidler, who works at OHSU, and has two autistic boys himself. Laidler explains some of the emerging theories, still unproved and controversial. One theory, he says, is that children receive vaccines with a small amount of mercury in them as a preservative, often within hours of birth. Some believe the mercury attacks the brain, possibly causing the symptoms of autism. Some believe there is another step in the theory: The measles-mumps-rubella vaccine, also known as the MMR, given around the second birthday.
Some believe the measles virus can cause damage to the intestines, possibly contributing to the symptoms of autism. The Meads say tests show that William had high levels of mercury in his system. Now parents around the country are joining in a class action lawsuit against pharmaceutical companies, claiming the companies sold unsafe vaccines without warning parents.
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Meanwhile, the Food and Drug Administration has asked pharmaceutical companies to stop making vaccines with mercury in them.
Read more . . .
Insurance Defense Trial Lawyers Seen Moving to Plaintiff Side
Restrictive litigation management policies, non-responsiveness by claims managers, disallowance of fees and disbursements, nit-picking, pressure to conform to claim adjusters' view of cases, amateurish managerial decisions, and bullying seen as reasons for departures
Henry Gottlieb -- New Jersey Law Journal -- 9/10/01
The frustrating days of working for insurance carriers are over for New Jersey attorney Steven Horn. He has joined that cadre of longtime defense lawyers who have switched to plaintiffs' work amid complaints that insurers have become more stingy and less willing to give lawyers latitude to make litigation decisions.
Read more . . .
Class Certification Requires Two Steps, Texas Supreme Court Holds
Court Gives Strategic Objectors ("Pay me or I'll foul up your settlement class action") a New Weapon
Mary Alice Robbins -- Texas Lawyer -- 9/10/01
The "certify now and worry later" approach won't cut it when a trial court is considering a proposed settlement of claims against a defendant in a class action, according to the Texas Supreme Court. In a unanimous decision on Aug. 30, the high court cited a previous ruling in Southwestern Ref. Co. v. Bernal that requires a trial court to perform a "rigorous analysis" to determine whether all requirements for class certification have been met before certifying a class.
"We see no reason why settlement-only classes should merit less rigorous treatment," wrote Justice Harriet O'Neill, author of the court's opinion in McAllen Medical Center Inc. v. Ramiro Cortez Jr., et al.
The supreme court held that the hospital, which declined to settle, has standing to appeal the trial court's conditional certification of an "opt-out" class and that its appeal is ripe for review. The case was remanded to Corpus Christi's 13th Court of Appeals, which dismissed the hospital's appeal last year.
Roger Hughes, the hospital's attorney and a partner in Harlingen, Texas' Adams & Graham, says the ruling is significant because the supreme court held that a nonsettling defendant has standing to object to the way a settlement is being done if it can show that it's being hurt by the process. It's also significant, Hughes says, because more evidence will have to be presented before a settlement class can be certified and notice sent to its members.
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Charles Silver, another professor at the UT law school, says the decision also could benefit "strategic objectors." Silver says strategic objectors use class actions to extort money by threatening to appeal class certification orders -- thereby taking a case out of the trial court's hands -- unless they're paid a fee. Notes Silver, "This opinion puts a very powerful weapon in their hands."
Read more . . .
Eli Lilly Sends E-Mail to Prozac Users Accidently Identifying Them to Each Other
How can your company avert similar fiascos -- and keep the lawsuits at bay?
Alan Charles Raul -- Business 2.0 -- October 2001 Issue
Talk about depressing. On June 27, Eli Lilly sent an e-mail to every person enrolled in a Prozac electronic reminder program typically used to alert them to refill their prescriptions. Unfortunately, each message included the addresses for all the other patients on the list; the online identities of some 600 people were thus revealed. Given patients' sensitivity about disclosures of medical information, such as the fact that they're taking a drug prescribed for mental illness, the privacy breach was particularly galling.
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Other recent unintentional data spills have revealed the tax return information of some H&R Block clients and opened up confidential corporate data sent to the U.S. Department of Commerce (that problem was on the agency's privacy-regulation website, which is comforting).
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To protect against data spills -- and lawsuits -- companies should undertake data vulnerability assessments, implement appropriate administrative controls, and educate employees about the need to shield personal data and tell them how to do it. Beef up that encryption and those firewalls, develop contingency plans for data security breaches, and make some corporate official personally responsible for data security. Those that don't take steps like these will be sitting ducks when the plaintiffs' lawyers come calling.
Read more . . .
Arguments heard in $1.2 billion Propulsid trial, nation's first
30 million prescriptions written for drug linked to deaths and taken off market
Associated Press -- 9/7/01
Port Gibson (AP) - Janssen and Johnson & Johnson were negligent in dispensing Propulsid, an attorney said in opening arguments in the nation's first lawsuit against the heartburn drug. Attorney James Upshaw said in Claiborne County court Thursday that Janssen and parent company Johnson & Johnson delayed reviews by the FDA, didn't keep doctors up to date on its latest findings and promoted "off label" sales of the drug to children.
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The case is being heard in a cramped, rural courthouse in an area of Mississippi known for high jury verdicts.
Read more . . .
Expert Links Cancer Victims Suing DuPont to Tainted Water
Andrea Gurwitt -- Herald News -- 9/8/01
Pompton Lakes, NJ - Seven of the youngest people suing DuPont contracted cancer from swimming in contaminated water or living on top of a toxic groundwater plume, according to an expert hired by attorneys for the residents. Bruce Molholt, a toxicologist and visiting professor at the University of Pennsylvania, said Friday that residue from cleaning solvents used by DuPont workers at its explosives production facility caused a variety of cancers in the seven current or former residents, who range in age from 2 to 31. Five lived within a couple of blocks of the Wanaque River, he said. Two lived in the pathway of a pool of contaminants that slowly made its way from the DuPont facility on Cannon Ball Road down to Pompton Lake.
Read more . . .
Pfizer Experiment Spurs Criminal Probe
Joe Stephens -- Washington Post -- 9/8/01, p. A15
The Washington Post reports as follows: Federal regulators have opened a criminal inquiry into alleged improprieties in a 1996 medical experiment that Pfizer Inc. researchers conducted on perilously ill children in Nigeria, according to a source close to the investigation. Martha B. Hughes, a special agent with the U.S. Food and Drug Administration's Office of Criminal Investigation, reportedly has been collecting information about Pfizer's trial of a then-unapproved antibiotic, known as Trovan. FDA criminal investigators develop cases and, when warranted, refer them to U.S. attorneys for possible prosecution.
The Nigerian experiment was first detailed in a Washington Post series last year that examined the rapid increase in the exportation of American drug trials to the developing world. Last week, lawyers filed a lawsuit in New York on behalf of 30 Nigerian families, charging that their children were unwitting participants in the "secret testing" and suffered injuries ranging from brain damage and paralysis to death. The suit contends Pfizer's methods violated FDA regulations and international laws and that the researchers' actions constituted torture and inhuman punishment.
The lawsuit alleges that Pfizer used a falsified document to assure the FDA that the clinical trial, conducted at a squalid epidemic camp, had been approved by a Nigerian ethics committee. It also said Pfizer tested the children, some as young as a few months old, without getting the consent of parents or telling them alternative treatment was available. A class action lawsuit pending in Nigeria levels similar charges and, according to media accounts there, has sparked street protests by as many as 2,000 Nigerians. The Nigerian government also is investigating.
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Many U.S. companies are exporting their human medical experiments to the Third World, where costs are lower and regulations are lax. During the 1996 meningitis epidemic, Pfizer researchers hurriedly assembled a Trovan experiment in a sub-Saharan medical camp in Kano, Nigeria. Over two weeks, Pfizer researchers gave 100 children Trovan and another 100 children a comparison drug. Eleven of the children died, and others suffered deafness, lameness and other permanent injuries. Pfizer has said none of the problems were related to its experiment. In January, the Nigerian doctor who oversaw the experiment for Pfizer said in an interview that a key ethics approval document was created as long as a year after the trial concluded, and then backdated so it would appear to have been issued before the experiment began.
Trovan was never approved for sale to children in the United States. Shortly after its marketing release for adults, Trovan was associated with fatal liver failures and its use was severely restricted. The European Union banned Trovan altogether. Earlier this year, the U.S. Department of Health and Human Services created an office to oversee experiments conducted on foreign patients by U.S. researchers. A presidential panel recently urged additional safeguards to prevent U.S. researchers from unethically testing medicines in developing nations.
Read more . . .
Saturday, September 08, 2001
New Internet Domains Mean Companies Must Act Now to Protect Trademarks; Filing Applications Much Like Lottery
PRNewswire -- Bloomfield Hills, Mich.-- 9/5/01
The introduction of two new top level domains -- .info and .biz -- means that companies need to act now if they want to register their own domain names on the Internet, according to Internet and trademark law attorney Michael Lisi. The application process started in August for .biz and begins September 12 for .info.
The registration process is a complicated series of lottery-style drawings and random selections. It is further complicated by the fact that multiple businesses often file for the right to use the same domains. The risk is that a business may lose the right to register domain names incorporating company trade names and trademarks. Even though a company's trademark may be registered in the existing top-level domains such as .com or .net, someone else can easily register the same name in .biz or .info.
Read more . . .
Starbucks Sued on Ephedrine in Tea Claims
Dan Whitcomb -- Los Angeles (Reuters) -- 9/8/01
A California public interest group has sued Starbucks Corp., claiming that America's largest coffee retailer secretly spikes its Tazo Chai Tea with ephedrine, an herbal stimulant banned in food by U.S. regulators. Seattle-based Starbucks strongly denied the allegation on Friday as it celebrated its 30th anniversary, promising a vigorous court fight. The Council for Education and Research on Toxics claimed in its Los Angeles Superior Court lawsuit that Starbucks has been putting ephedrine, which has been linked to deaths, heart attacks, strokes and other health problems, in its tea at least since 1996.
Audrey Lincoff, a Starbucks spokeswoman, said in a statement that while the company does not comment on pending litigation it wanted to ``confirm for our customers that ephedrine has never been used as an ingredient in Tazo's Chai Tea or any other Tazo product.'' ``We have tested Chai Tea for the presence of ephedrine and the results have been conclusively negative,'' Lincoff said in the statement. ``There is no basis for the claims raised by the plaintiff and we intend to vigorously defend the lawsuit.'' ``Starbucks is, and always will be, devoted to providing high quality, safe products,'' she added. ``We are confident that the outcome of this litigation will only further demonstrate Starbucks' adherence to that commitment.''
The lawsuit, which was which was filed late on Thursday and claims violations of the California Health and Safety and Business and Professional codes, seeks to stop Starbucks from putting ephedrine in the tea and to make restitution to the state of California. It was filed on the same day that a consumer group asked the U.S. government to ban dietary supplements that contain ephedra based on similar health risks.
Plaintiff's lawyer Raphael Metzger said ephedrine and ephedra, also known as ma huang, both are derived from the same alkaloids, which are considered toxic.
SUIT FOLLOWED BREAKDOWN OF PRIVATE MEDIATION
Metzger, a lawyer for the Council for Education and Research on Toxics, which he described as a recently formed public interest group, said they did not file the lawsuit to make money and decided on the litigation only after private mediation with Starbucks broke down. ``The goal was to get them to take ephedrine out of the tea without filing suit,'' Metzger said. ``To get it out (of the tea) to protect public. We had no choice but to file this suit.'' Metzger said the group approached Starbucks after ''extensive'' testing by an independent laboratory showed ephedrine in the tea.
Asked why the coffee chain would put ephedrine in its tea, Metzger said: ``I don't have a clue why its in there. There's no legitimate reason why its in there. It gives people a rush and that may be why, but I wouldn't want to speculate.''
Starbucks currently owns or operates more than 4,600 coffee shops, including 3,700 in North America, and opened more than 1,100 in the year ending Aug. 26. It plans to extend its espresso empire to more than 20,000 stores in coming years.
Friday, September 07, 2001
Passengers launch $30M suit against Air Transat
Transport Canada imposes $250,000 fine on the airline
theStar.com -- From Canadian Press -- 9/6/01
Saying they will suffer for the rest of their lives from the terror of landing in a jet without fuel, Air Transat passengers filed a class-action lawsuit today hours after the discount airline was slapped with the biggest fine in Canadian aviation history. "The plaintiffs. . . were severely traumatized by their experience to the point of being physically ill and will likely continue to suffer the results of this physical and psychological injury for the rest of their lives," said the suit's statement of claim, which was filed in Ontario Superior Court.
The suit, which names three people, seeks $30 million in damages on behalf of the 291 passengers who endured a terrifying emergency landing in the Azores on Aug. 24.
Read more . . .
Second Silicon Valley Firm Announces Layoffs
Renee Deger -- The Recorder -- September 7, 2001
Fenwick & West laid off some 32 associates and 15 paralegals Thursday, becoming the second Silicon Valley firm to downsize because of the falloff in tech-related business. The cuts take effect Sept. 14. The lawyers who were laid off will be paid through the end of the year and will continue to receive health benefits. The severance for paralegals varies by length of service. * * * Last month, Cooley Godward laid off 86 associates, or 17 percent of its junior ranks. It also cut 50 staff positions. That layoff, the first by a law firm since the early 1990s, deeply rattled the ranks of Valley associates and spurred speculation over which major tech law firm would be next. * * * The 32 associates who were cut came mostly from the firm's corporate group, although some intellectual property and litigation associates also got the ax. The patent and tax groups were untouched. Younger associate classes were the hardest hit by the cuts. Since 1998, the firm has increased its ranks of lawyers by 50 percent and its revenues by 67 percent.
Last year, the 298-lawyer Palo Alto firm landed for the first time among the nation's 100 top-grossing law firms. In the list compiled by The American Lawyer, Fenwick was in 97th place. Fenwick grossed $148 million and the firm's 65 partners each took home an estimated average of $800,000 in profits. In 1998, the firm grossed $88.5 million and profits per partner were $614,000.
Read more . . .
Wednesday, September 05, 2001
Problems with the Domain Name Dispute Resolution Process
Eric J. Sinrod -- Law.com -- September 5, 2001
Thousands of domain name disputes have been resolved in less than two years under the Uniform Domain Name Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned Names and Numbers (ICANN). This alternative dispute resolution process has been hailed as a model to be replicated for other types of Internet legal disputes, given its speed, low cost, and international scope. However, a recent study reveals some apparent inequitable results resulting from the composition of arbitrator panels in domain name disputes.
[Forum shopping (2 of 3 approved dispute resolution services have a decidedly pro-plaintiff track record and have garnered the vast majority of new filings) and number of arbitrators (when service providers select the arbitrator, which happens for all single panel cases, complainants win 82% the time, but when parties select one arbitrator each, complainants' winning percentage drops to 60%) are two problem areas.]
Read more . . .
Mandatory Employment Dispute Arbitration Provision Not Mandatory if Employee Can Show Likelihood of Higher Costs, Federal Judge Rules
John Caher -- New York Law Journal -- September 5, 2001
In an apparent ruling of first impression, a federal judge in Utica, N.Y., has held that an arbitration agreement which an employee was forced to sign when her company was acquired is unenforceable where that employee can show a likelihood of incurring significant costs in arbitration that would not be incurred in a judicial forum
Judge Hurd said that while the U.S. Supreme Court's decision this year in Circuit City Stores Inc. v. Adams, 121 S.Ct. 1302, established that an employee's Title VII claims are subject to arbitration under the Federal Arbitration Act, it left unsettled the question of "what, if any, minimal fairness requirements must be met in order for a court to conclude that an employee is not being compelled to forfeit [substantive rights] in agreeing to the mandatory arbitration."
Read more . . .
Sunday, September 02, 2001
Vaccine Manufacturers Sued Over Preservative Thimerosal Allegedly Connected with Neurological Disease
30 Million Children May Have Been Exposed
(This story ran on page A1 of the Boston Globe on 9/1/2001)
Alice Dembner -- Boston Globe -- 9/1/2001
Parents of three autistic Massachusetts children have filed a class action lawsuit against the nation's major vaccine manufacturers, putting the state at the forefront of a dispute over whether a widely used preservative in vaccines causes neurological disease. The suit alleges the children ''were poisoned with toxic mercury'' contained in the preservative, thimerosal, that is used in a range of childhood vaccines, including hepatitis B, Haemophilus b, and diphtheria/tetanus. The complaint says as many as 500,000 children in Massachusetts may have been ''unnecessarily exposed to dangerously high doses of toxic organic mercury'' from 1990 through this year because of stepped-up vaccination campaigns.
The Massachusetts lawsuit is the second of at least 15 suits a team of lawyers in Medford and Portland, Ore., are planning to file across the nation. Altogether, lead attorney Robert Bonsignore said, as many as 30 million American children may have been injected with vaccines containing thimerosal in the last 10 years.
Read more . . .
Saturday, September 01, 2001
Lowenstein Sandler Intellectual Property Litigators Score Big Win In Third Circuit
The Lowenstein Sandler firm successfully represented Emerson Radio Corp. in an intellectual property dispute in the Third Circuit. David L. Harris, who the New Jersey Law Journal recently ranked as one of the top 10 trial lawyers in New Jersey, argued the case with help from Paul Carvelli from McCusker, Anselmi, Rosen, Carvelli & Walsh. Emerson had entered into a three-year exclusive agreement with Orion Sales, Inc. pursuant to which Orion was allowed to use the Emerson brand on television sets, VCRs, and other consumer electronic products sold to Wal-Mart. As part of the Agreement, Orion also agreed to assume responsibility for all returned merchandise beginning in July 1995. Emerson was to receive a royalty on all sales, but was guaranteed a minimum royalty of $4 million a year. According to evidence introduced by Emerson, Orion had secretly planned to use the exclusive license to market its own brand to Wal-Mart in place of Emerson-branded products.
Orion would essentially replace Emerson by the end of the three-year license period. Orion’s business plan succeeded, resulting in dramatic declines in the sale of Emerson products to Wal-Mart from $330 million at the beginning of the license period to $78 million in the last 12 months. Orion’s sales to Wal-Mart correspondingly increased from $3 million to $275 million. The district court granted summary judgment to Orion. One of the key issues was the interpretation of the granting language in the license: Emerson granted Orion “a license to UTILIZE AND EXPLOIT.” The district court held that the term “exploit” was ambiguous and could have meant that Orion could exploit the license for its own benefit, to Emerson's detriment. In addition, the court found that the $4 million annual royalty was all that Emerson had really bargained for. The firm’s litigation team, David L. Harris and J. Creighton Drury, argued that the term “exploit” required Orion to exercise reasonable diligence to promote the sale of Emerson products. The Third Circuit agreed with Emerson’s position in a very thorough opinion. The district court had also ruled that Orion's conduct did not constitute a breach of the covenant of good faith dealing. The Third Circuit again rejected entirely the district court's reasoning in this issue.
PAPER: What To Do When the Government Knocks On Your Door
R. Scott Thompson and Stefanie P. Tavaglione -- Lowenstein Sandler -- April 2001
This article discusses the need for an investigation management plan in advance covering everything from employee preparedness, receiving and handling government investigators, educating current and former employees as to their right to refuse to talk to investigators but avoiding instructing them to refuse (obstruction), the need to identify in advance a criminal attorney to be called immediately, the benefit of having counsel present during any questioning and making a record, post-interview de-briefing, copying the search warrant, reading it carefully and limiting intrusion to the items covered in the warrant, keeping a record of materials investigated and taken, the need for centralized management of investigations, the advantage of sending some/most employees home immediately, the need to copy all information taken so the business can continue. The article is a useful overview of the area.
Download article.
PAPER: Which Insurance Coverage Issues Still Remain?
Chemical Waste Litigation Reporter -- Lynda A. Bennett, Robyn Ann Valle, Christian E. Jarecki, Jennifer Jack Kurywczak, and Alexander J. Anglim -- Lowenstein Sandler -- August 2001
"After nearly twenty years of environmental insurance coverage litigation, it would seem that there are few, if any, battles left that are worth fighting. However, neither side of the environmental coverage war has waived the white flag just yet. While it is true that the law in many of the states that blazed the trail for coverage actions, like New Jersey, New York, California, Washington, and Pennsylvania is now well settled, the supreme court (and in some instances the appellate courts) in many other states have not established how environmental claims will be addressed by insurance. Accordingly, both sides of the insurance coverage dispute are now using the foundation laid by trailblazers to win favorable decision in those 'undecided' states.
"This article surveys some of the notable decisions rendered over the past few years that have addressed the key issues that arise in almost every insurance coverage case: choice of law, the 'sudden and accidental' and the so-called 'absolute' pollution exclusions, allocation, the 'suit' requirement, the 'as damages' clause, late notice, known loss, and concurrent causation."
Download article.
Pfizer Sued in SDNY Over Nigerian "Trovan" (trovafloxacin) Drug Study
CNN (Associated Press) -- August 31, 2001
NEW YORK (AP) -- Pfizer Inc. denied Thursday that a drug study it conducted in Nigeria in 1996 during a deadly meningitis epidemic was to blame for deaths or brain damage in children. Read full Pfizer statement.
On Wednesday, a lawsuit was filed in U.S. District Court in New York on behalf of 30 children who participated in a study of the drug Trovan. The suit seeks unspecified damages.
The children were among 200 youngsters who took part in the testing of Trovan, which was carried out during an epidemic that killed more than 15,000 Africans. The families of seven of 11 children who died after participating in the test were among plaintiffs. The lawsuit claims Pfizer hurried plans to carry out its tests, taking a variety of steps that violated international law, federal regulations and medical ethics.
Read more . . .
