Document Sample
Legal Update ECKERT SEAMANS Powered By Docstoc
					  ECKERT SEAMANS                                                                                                  Web site :
                                                                                                                   E -mail : escm
                                                                                                                                 - c   .esc m .co m
                                                                                                                                       v .c m .oom

                                                                                                                                 Winter 2002

  Legal Update
   Page 1
   Eckert Seamans has
                                FIRMS MOVE TO ECKERT SEAMANS
   added prominent
   attorneys in all its
   offices .
   Page 2
                                 Eckert Seamans executed two major coups in
   Vantage Point
                                Pittsburgh's legal community this year with the
   Legal management tools
   and information tech-        addition of two respected attorneys from the
   nology can help contain      law firms they helped create .
   the cost of litigation and
   promote a successful
                                 William L . Doepken, co-founder of Doepken
   outcome .                    Keevican & Weiss, joined Eckert Seamans in
   Page 3                       August, 2001 . Doepken has more than 25 years'
   Interview with . . .         experience in labor and employment relations
   The Federal Reserve's        law. He has successfully dealt with nearly every
   cuts in the inter-bank       major type of union situation, defended many
   loan rate and new debt
   management tools are         clients in discrimination cases and negotiated        William L . Doepken       John R. McGinley
   changing how bond            employment and other agreements for top
   issuers are structuring                                                             Firm Gains Office in West Virginia
   their financing . Peter      corporate executives .
   Carlucci and Elizabeth        John R. McGinley, Jr., co-founder and chairman         In April 2001, the firm merged with The Fusco
   Lynch discuss what           of the board of Grogan Graffam McGinley                Legal Group, a four-attorney firm founded in
   these developments
                                moved his practice to Eckert Seamans in                1973 in Morgantown, West Virginia, to support
   mean .
                                January, 2002 . McGinley has been a trial              its expanding business in that state .
   Page 4
                                attorney for over 30 years and has extensive            "We have many clients in West Virginia, so it
   Changes in the Law
                                experience in corporate, business, real estate,        made sense to have a physical presence there,"
   In Memoriam :
                                and professional liability matters . Before            said Timothy P . Ryan, chair of the Litigation
   "Mel" Mellott
                                entering private practice, he was an assistant         Division . "Andy Fusco and his highly qualified
                                district attorney for Allegheny County . He is a       attorneys enable us to serve existing and win
                                director of Pittsburgh Steelers Sports, Inc ., a       new clients more cost-effectively"
 "We're attracting              Fellow in the American College of Trial Lawyers         The Fusco Legal Group brings to Eckert
                                and a member of the Academy of Trial Lawyers           Seamans a range of clients including
                                of Allegheny County .                                  universities, government agencies, corporations
topnotch attorneys                                                                     and individuals .
                                 James A . Pellow III, former chair of the
                                Business Transactions Group at Grogan Graffam
because they see the            McGinley, joined Eckert Seamans as a member            Boston Office Expands
                                at the same time as McGinley.                           The Boston office saw the largest attorney staff
                                                                                       growth relative to its size. Six attorneys
  opportunity at                 "We're attracting topnotch attorneys because
                                they see the opportunity at Eckert Seamans to          previously associated with the Boston firm of
                                practice law with an outstanding legal team,"          Lyne Woodworth & Evarts LLP joined Eckert
Eckert Seamans to               said Dennis L . Veraldi, the firm's chief operating    Seamans in March . Three more attorneys joined
                                officer.                                               the firm over the summer and fall .
practice law with                Other attorneys joining the Pittsburgh office as       Of these nine, seven joined the firm as members :
                                members in 2001 were Kathleen Gallagher in the         four in the Corporate Division-John L .
                                Litigation Division, Peter N . Pross in the            Talvacchia, Richard L . Wise, Stephen T . Kunian
  an outstanding                                                                       and Michael J . Owens ; two in the Litigation
                                Bankruptcy and Creditor's Rights Department
                                and Scott R . Dismukes in the Litigation Division      Division-Bruce W. Edmands and Edward S .
    legal team . "              and Environmental Department . Mr. Dismukes            Rooney, Jr. ; and one in the Real Estate and Land
                                is former head of DKW Law Group's                      Use Department-Arthur D . Gold .
                                Environmental Practice Group .                                                                 (continued on page 4)

                                 by Bruce W. Edmands

                                  Civil litigation is slow, time consuming and    • The kinds and purpose of the discovery
                                 expensive, but legal management tools can         tools to be used ; and
                                 help contain the cost of litigation and          • Whether and for what purpose motions
                                 promote a successful outcome .                      will be filed .
                                  Forming the heart of an effective litigation     An effective litigation work plan assigns
                                 strategy is a comprehensive plan with three      timeframes to tasks so that the client can
                                 distinct components :                            forecast cash flow requirements .
                                 • Strategic plan ;                                 The work plan should make separate
                                 • Work plan; and                                 provision for offensive and for defensive
                                 • Budget .                                       discovery. Offensively, the discovery plan
                                  These three documents provide a frame-          should identify the primary documents,
                                 work for organizing the litigation and the       their sources and the witnesses whose
Bruce W. Edmands                 basis for regular discussions between            depositions will be required . Defensively, it
                                 attorney and client about the scope and cost     should identify categories of potentially
                                 of the project .                                 relevant documents and friendly witnesses
Bruce W. Edmands is an                                                            who have pertinent information to
                                  The strategic litigation plan provides the
attorney specializing in civil
and criminal litigation at       client and the attorneys with a mechanism to :   contribute in preparation for the initial
Eckert Seamans Cherin and        • Describe the goals of the litigation and the   disclosures required by the federal rules of
Mellott, LLC. Phone :              strategy to be used to achieve them ;          procedure .
617.342 .6800; email :           • Summarize the facts that led to the dispute      Litigation is a dynamic process . As new
bruce .edmands@escm .com .         and the legal and factual positions of the     evidence develops, the positions of the
                                   parties; and                                   parties may evolve and the focus may shift
                                 • Outline the principal legal and evidentiary    to new areas of dispute and investigation .
                                   objectives of the case and the key findings    Client and attorney should meet regularly
                                   and rulings that the attorney will urge the    to discuss possible changes in the direction
                                   ultimate decision-maker, i .e ., the court,    and scope of the litigation, the cost implica-
                                   jury, arbitrator or mediator, to accept .      tions of those changes and necessary
                                  A key component of the strategic plan is        revisions to the litigation work plan . How
                                 the discovery plan . Discovery, the process by   often the meetings take place depends on
                                 which one side investigates and unearths         the specifics of each case, but they should
                                 evidence in the hands of the other, is most      occur at least quarterly.
                                 often the most expensive phase of litigation .     In the heat of litigation it is easy to
                                 For the most part, attorney and client can       become distracted from what appear to be
                                 control only the discovery they initiate and,    mundane housekeeping chores such as
                                 under our current discovery rules, must          reviewing and revising plans and budgets .
                                 yield to the demands of the opposition           Unless client and counsel consistently
                                 unless the parties negotiate reasonable limits   perform these chores, however, cost can
                                 to the scope of discovery. The discovery plan    easily spiral out of hand and miscommuni-
                                 outlines the propositions and conclusions for    cations can arise that could jeopardize
                                 which evidence must be developed and             a case .
                                 where that information and admissible              Not every law firm uses these manage-
                                 evidence can be obtained .                       ment tools or uses them to maximum
                                  Once attorney and client have defined the       effect. While every case requires individual
                                 overall goals in the strategic plan, they can    handling and no attorney can control the
                                 outline the specific tasks necessary to          actions of the opposing side, sound
                                 achieve those goals in a litigation work plan,   litigation management tools are a necessity,
                                 and the associated costs in a litigation         regardless of the size and complexity of the
                                 budget . The work plan should outline :          case . They can be particularly helpful to
                                 • The scope of the initial investigation and     allay client concerns about fees .
                                   fact development;

C. Peter Carlucci, Jr. is the Chair of the firm's
                                                           What projects are municipalities
Municipal Finance Department . His practice is
                                                           financing today?
concentrated in the area of municipal and public
finance as bond counsel and counsel to municipal
and private issuers, lenders, trustees, and            CPC : We're seeing a wide range of projects
underwriters of municipal securities .                 being financed . School districts and munici-
Phone : 717.237 .6021 ; email cpc@escm .com            palities have been borrowing for their
                                                       ongoing capital needs . Government environ-
Elizabeth L . Lynch is a Member in the firm's          mental agencies are requiring that water and
Municipal Finance Department . She has extensive       sewer authorities improve their systems .
experience representing issuers, underwriters and      We're working on a large number of health-
trustees in municipal bond offerings and other types
                                                       care financings for hospitals and long-term
offi'nancings . Phone : 412 .566 .1255;                                                                     C . Peter Carlucci, Jr.
                                                       care facilities . As interest rates have declined,
(' m ail : ell of e scnt .co m .
                                                       we are working more on refundings .

    What are the current trends in municipal
                                                           Are there new types of products on the
CPC : The Federal Reserve's cuts to the
inter-bank loan rate have had a dramatic effect
                                                       ELL: The sophisticated debt management
on short-term interest rates . Interest rates on
                                                       tools that corporate borrowers have used for a
variable-rate transactions-those on which
                                                       number of years are finding applications in
interest rates are set daily or weekly, are at his-
                                                       public finance . These tools include interest
torically low levels . Interest rates on long-term
                                                       rate hedge products such as "swaps ." In an
obligations such as 20- or 30-year fixed-rate
                                                       interest rate swap, an issuer who has fixed-
bonds of the kind typically issued by municipal
                                                       rate debt outstanding can exchange-or
entities have also come down a bit, but not                                                                 Eli:    to L. Lynch
                                                       swap-its fixed-rate payment with another
nearly as dramatically as the short-term interest
                                                       party, called a counterparty, who agrees to
rates . Issuers face the decision whether to take
                                                       pay the issuer an identical fixed-rate payment .
advantage of the historically low short-term
                                                       In exchange, the issuer pays the counterparty
rates, knowing that they are going to go up
                                                       a variable-rate payment . This arrangement
eventually, or opt for good, but not great, long-
                                                       can be for any number of years, and the issuer
term rates .
                                                       can structure many variations . For example, a
                                                       swap can also be from a variable rate to a
    What challenges do bond issuers face in
                                                       fixed rate . A swap gives the issuer the ability
    current financial markets?
                                                       to take advantage of both variable-rate and
                                                       fixed-rate debt .
ELL : They have to find better-yielding invest-
                                                         These interest rate hedges are very compli-
ments . Traditionally, a municipal issuer issues
                                                       cated, however, and may not be the right tool
fixed-rate long-term bonds for a capital project
                                                       for any but the most sophisticated municipal
and invests the moneys it receives from the sale
                                                       entities . Since municipal entities are dealing
of the bonds into short-term investments until it
                                                       with public funds, there are restrictions in the
spends the money for the project . Because of the
                                                       law (as well as prudent investment policies)
dramatic decline in short-term interest rates, the
                                                       that limit their use of these tools . Although
investments that municipalities typically use are
                                                       they may be financially attractive, there are a
not providing issuers with the investment
                                                       number of both legal and financial issues to
returns they are used to . Issuers are now
                                                       consider before entering into these types of
looking for new investment alternatives that are
                                                       transactions .
safe-and legal-and provide a decent return .
We are constantly receiving questions about
whether specific investments are legal for
municipalities .


Changes in the Law                                                            IN MEMORIAM
                                                                              %I   AVr1     O   R   I   I   ATr
Recent court cases, regulatory decisions or new law .

                                                                                                                    Cloyd R . Mellott,
 In Kalamazoo River Study Group v. Rockwell International                                                         one of the first part-
Corporation, the Sixth Circuit recognized that a party may be liable                                              ners of Eckert
under the Superfund Act (CERCLA), but not responsible for                                                         Seamans Cherin and
response costs . The court did not establish a specific allocation                                                Mellott, passed away
approach, but recognized that the trial court has a great deal of
discretion in deciding the equitable allocation of response costs . The                                           October 31, 2001 .
court further acknowledged that it is not improper for a trial court                                                A native of
to allocate a zero share when a party's contribution is insignificant .                                           McConnellsburg,
The court did recognize that it is improper to consider a party's                                                 Pennsylvania, "Mel"
cooperation with the government as a factor favoring allocation of
an equitable share when none of the parties "fully" cooperated .                                                  Mellott earned his
- Kathryn L . Hunter                                                                                              B .S . in electrical
                                                                                                                  engineering from
                                                                                                                  Carnegie Institute of
                                                                             Cloyd R . Mcllott
 Subject to certain exceptions, all United States patent applications                                             Technology and a law
are now published 18 months after the earliest filing date for which                                              degree from the
benefit is sought . As a result, under certain conditions, patent            University of Pittsburgh . He specialized in antitrust,
applications will be published before a patent issues and, frequently,       commercial law and product liability law, serving
before the applicant has a guarantee that a patent will issue .
 A U .S . applicant can request that the application not be published        clients such as Gulf Oil, Alcoa, Westinghouse, Williams
provided that the invention has not been and will not be the subject         Co . and Georgia Pacific . Although he retired from full-
of an application filed in another country that provides for                 time practice in 1993, he maintained an office at the firm
18-month publication . - Arnold B . Silverman
                                                                             and had a frequent presence in the offices .
                                                                              "He had a brilliant legal mind, a very strong and
                                                                             engaging personality and great tenacity on behalf of his
 New Department of Labor regulations define categories of claims             clients," said Bill Mallin, special counsel to the firm .
under group benefit plans and detail new procedures and
timetables for handling each kind of claim and the reviews and                Mel served as an Army bombardier in World War II
appeals that might result if the claim is denied .                           and was awarded the Distinguished Flying Cross and
 The regulations apply to all plans covered by the Employee                  the Purple Heart . He passed away during his return
Retirement Income Security Act (ERISA), regardless of the size of            from a trip to Minnesota to visit members of his
the employer and whether the plan is insured or self-insured .
  The compliance date for pension and welfare plans other than               Bombardment Group .
group health plans was January 1, 2002 . Group health plans must
comply as of the first plan year beginning after July 1, 2002 .
- Paul M . Yenerall

Law Firm Founders Move to                                                                               in-house counsel for CIGNA
Eckert Seamans                                                                                          Corporation and ARCO
(continued from page 1)                                                                                 Chemical Company and
                                                                                                        general counsel for ARCO
 Distinguished Litigator Joins Washington, D .C . Office                                                Chemical Europe, Chou has
  An attorney with a large nationwide civil litigation                                                  significant experience in
 practice joined the firm's Washington, D .C . office as a                                              securities, finance, acquisitions
 member last spring . Edward J . Longosz 11 has nearly 20                                               and divestitures .
 years' experience in business torts, insurance litigation,                                               The Philadelphia office also
 contract disputes, defense of toxic torts, HIV blood                                                   established a relationship with
 transfusion litigation, asbestos, product liability and                                                respected attorney and certified
                                                                             John G . Call              public accountant Sidney
 medical malpractice .
                                                                             Margulies, who serves as outside counsel to the firm . In a
 Counsel for ARCO Chemical Joins Philadelphia Office                         career spanning more than 40 years, Mr. Margulies has
  In late 2000, John G . Chou joined the firm's Philadelphia                 focused on estate planning and administration, employee
 office as a member in its Corporate Division . Previously                   benefits law, and tax issues .

 OlI ISI3URGH                HARRISRFRG             P HII .A M I .I'HIA    MoRGANTOwN, WEST VIRGINIA
 412 .566 .6000              717 .237 .6000         215 .851 .8400         304 .594 .1000
 Fax : 412 .566 .6099        Fax : 717 .237 .6019   Fax : 215 .851 .8383   Fax : 304 .594 .1181

 856 .427 .6240              617 .342 .6800         202 .659 .6600
 Fax : 856 .427 .0611        Fax : 617 .342 .6899   Fax : 202 .659 .6699

Shared By: