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Measures To Curb Emissions Backed
Legal Career News | 2007/09/14 18:34
In a crucial ruling on the global warming issue, a federal judge said Wednesday that regulations adopted by Connecticut and 12 other states to curb greenhouse gas emissions from cars and light trucks don't conflict with federal law. Judge William K. Sessions III, of U.S. District Court in Burlington, Vt., ruled against the auto industry on every point in its attempt to block implementation of the rules, which are aimed at reducing global warming.

Although witnesses for both the auto industry and proponents of the regulations testified that the rules would have only a tiny impact on global temperatures, Sessions said that was no reason not to implement them.

"The fact that global warming will not be solved by changes in any one industry or by regulation of any one source of emissions in no way undercuts the vital nature of the problem or the validity of partial responses," he wrote. "Rather, it points to the necessity of responses, however incomplete when viewed individually, on any number of fronts."

Sessions discounted the automakers' claims that complying with the regulations would be technologically and economically unfeasible. "It is improbable that an industry that prides itself on its modernity, flexibility and innovativeness will be unable to meet the requirements of the regulation," he wrote.

Wednesday's decision was the second federal court victory in recent months for states and environmental groups trying to use federal anti-pollution laws to reduce emissions of carbon dioxide and other gases that cause global warming. In April, the U.S. Supreme Court ruled that the Environmental Protection Agency has a duty to consider whether the gases are harmful air pollutants.

It is unlikely to be the last word, however. Sessions' ruling could be appealed. Similar lawsuits are pending in two other states, and the EPA is now weighing approval of the regulations that were the subject of Wednesday's decision.

The case before Sessions involved regulations established in California in 2004 and later adopted by 12 other states, including all of New England except New Hampshire. The regulations would limit greenhouse gas emissions from cars, SUVs and light trucks beginning with the 2009 model year.

The rules were established under a provision of the federal Clean Air Act that allows California to set more stringent standards for vehicle tailpipe emissions, subject to EPA approval, and permits other states to adopt the California standards.

Automakers, however, sued California, Vermont and Rhode Island to block implementation of the rules, claiming they violate another set of federal laws concerning vehicle mileage. The Vermont case was the first to go to trial, with several environmental groups joining the state as defendants.

The manufacturers argued that the rules amount to mileage standards, which states cannot impose under federal law. That's because emission of carbon dioxide, the principal greenhouse gas, is directly related to the amount of gasoline burned. To reduce carbon dioxide emissions, therefore, manufacturers would have to increase vehicle mileage.

Even if the regulations aren't explicitly pre-empted by federal law, industry lawyers argued, they are contrary to the intent of the law - to spare manufacturers the burden of meeting different mileage standards in different states. Their witnesses said that the industry lacks the technology to meet the requirements, that compliance would add about $6,000 to the cost of a vehicle, and that automakers would be forced to stop selling most of their products in states that adopt the rules.

Sessions rejected the claim that the regulations are really mileage rules. Improving mileage is one way to reduce emissions, he said, but not the only way: Carmakers can get credit for improving air-conditioner efficiency, for example. Nor is better mileage alone sufficient: The California standards also require calculation of the emissions caused by the production of alternative fuels, such as ethanol, propane or natural gas.

And Sessions said he was not persuaded by witnesses who testified that the industry would be unable to comply with the regulations, saying they made overly conservative assumptions about the availability of technology and alternative fuels. Although witnesses testified that alternative fuels would not help automakers meet the regulations, Sessions wrote, top industry executives have publicly touted the use of those fuels as part of their strategies to reduce greenhouse gases. Similarly, he wrote, some technologies dismissed by witnesses as not practical are already in use.

In response to Wednesday's ruling, the lead plaintiff, the Alliance of Automobile Manufacturers, issued a brief statement in the name of president and CEO Dave McCurdy reiterating the Alliance's position and saying it is "studying the decision and considering the options, including an appeal."

The winners were more voluble. Massachusetts lawyer Matt Pawa, who represented several of the intervening environmental organizations, said Sessions had "given extraordinarily thorough consideration to all of the automakers' factual and legal arguments and rejected virtually all of them."

"The automakers have now had their day in court and they've lost," he said. "This a historic win for the planet."


Disappointed Democrats Map Withdrawal Strategy
Law & Politics | 2007/09/14 18:33

Senate Democratic leaders on Wednesday called the administration's plan to keep 130,000 or more troops in Iraq through mid-2008 unacceptable and promised to challenge the approach through legislation next week. Several proposals were being weighed, including one requiring the American military role to be shifted more to training and counterterrorism, in order to reduce the force by more than President Bush is expected to promise on Thursday. Another would guarantee troops longer respites from the battlefield, effectively cutting the numbers available for combat.

Even if those proposals draw the 60 votes needed to overcome a Senate filibuster — a level that has eluded Democrats this year — any real strictures on the president would face a veto, frustrating war critics and raising the prospect that roughly as many American troops might be in Iraq a year from now as were there a year ago.

Still, the Democrats tried to get ahead of President Bush's planned speech on Iraq on Thursday night, and to press what they see as a political advantage in opposing the war in the months before the 2008 elections.

Senator Harry Reid of Nevada, the majority leader, and two party leaders on military issues accused Mr. Bush of embracing "more of the same" and of trying to pass off a routine troop reduction as a significant shift in policy.

"That is unacceptable to me, it is unacceptable to the American people," said Mr. Reid, who was flanked by Senators Carl Levin of Michigan, chairman of the Armed Services Committee, and Jack Reed of Rhode Island, a West Point graduate.

Democratic presidential contenders also assailed the administration's plan.

Senator Barack Obama of Illinois called for the withdrawal of one or two combat brigades a month, starting immediately.

Senator Hillary Rodham Clinton of New York said taking credit for the force reductions that Gen. David H. Petraeus, the commander in Iraq, was recommending, and that Mr. Bush appeared ready to accept, was "like taking credit for the sun coming up in the morning."

With Democrats intensifying their attacks on the strategy outlined this week by General Petraeus, the administration is setting in motion its plans with a prime-time speech by the president on Thursday, a subsequent visit to a military base and continued appearances by General Petraeus and Ryan C. Crocker, the American ambassador in Baghdad.

At a news conference on Wednesday, General Petraeus reiterated that he was unwilling to commit to troop cuts beyond a five-brigade reduction by mid-July, a level he described as prudent. There are 20 combat brigades in Iraq.

He also took issue with claims that such a reduction would not be significantly faster than what had already been scheduled. Combat forces in Iraq serve up to 15-month tours. Under that limit, part of the Pentagon's broad effort to lessen the strains on the military, General Petraeus would not have had to pull out any combat units until April, instead of removing the first brigades in mid-December, he said.

"We are coming out quicker than we had to," he said.

The White House spokesman, Tony Snow, in his last news briefing before leaving the job, rejected Democrats' complaints that the administration's plan was simply a return to the level that existed before more than 30,000 additional troops were sent into Iraq this year, a buildup that the administration pointedly referred to as a surge, suggesting its temporary nature.

"It's a different country," said Mr. Snow of Iraq. "You have the ability to reduce the numbers because there have been changes that reduced the necessity of American involvement."

Senator Reid would not provide details of the legislative proposals that Democrats will pursue. But Mr. Levin and Mr. Reed have been working with some Republicans on a measure that would focus the military mission on counterterrorism, training Iraqis and protecting forces already there — a switch intended to allow large numbers of combat troops to be withdrawn by next spring.

"We have to go ahead and recognize the strain on the military forces and give them the tasks that they can do so well," said Mr. Reed, a former Army captain, "but within the capability of their resources and the best interests of the United States."

They have been exploring the idea of making the withdrawal more of an objective than a requirement in order to attract Republican votes, but that approach could cause defections by Democrats.

Democrats have been picking up new Republican support for a measure that requires troops to spend at least the same amount of time at their home bases as they did in Iraq before returning — a requirement that could reduce troop numbers because the Pentagon would not have as many eligible for deployment.

"I think that might be a good way to accelerate a troop reduction," said Senator Gordon Smith, Republican of Oregon, who noted that it was also popular with strained military families.

That measure attracted 56 votes this summer, and some Republicans who opposed it then, including George V. Voinovich, Republican of Ohio, have expressed new interest. Senator Arlen Specter, Republican of Pennsylvania, said Wednesday that he was considering the proposal, and Democrats were also trying to persuade Senator Lisa Murkowski, Republican of Alaska.

Mr. Reid said Democrats also planned to vote on more aggressive legislative challenges to the war, which could help appease critics who are demanding that Democrats take tougher action.

Democrats say they may also be more willing to try to attach conditions to coming Pentagon spending requests. (Democrats have been reluctant to limit money for the war unilaterally.) "I think the American people are getting tired of sending the money with no end in sight," said Senator Charles E. Schumer, Democrat of New York.

The struggle to settle on a party alternative illustrates the problems Democrats are having finding a way to take on the president that unites their party and avoids criticism that they are weak on national security.

As Democrats huddled Wednesday to prepare for the floor debate, a group of leading House Republicans arrived in Iraq to demonstrate their backing for the president. The lawmakers, led by Representative John A. Boehner of Ohio, the Republican leader, had been in Iraq less than five hours, but in a conference call with reporters they said their initial briefings had already confirmed improvements.

"Clearly what's happened over the last three months has been real success," said Mr. Boehner, who previously visited Iraq in July 2006.

In an interview on "The Today Show" on Wednesday, Secretary of State Condoleezza Rice said stabilizing Iraq was part of "a long process of dealing with what the president called a long time ago a generational challenge to our security brought on by extremism, coming principally out of the Middle East."

Speaker of the House Nancy Pelosi, a California Democrat, said Ms. Rice's comment represented an acknowledgment that the United States would be engaged in Iraq for "years to come."

"We need a new direction that redeploys our troops from Iraq, rebuilds our military and refocuses on fighting terrorism across the world," Ms. Pelosi said.



Kirkpatrick & Lockhart moving Pittsburgh offices
Law Firm News | 2007/09/14 14:41


The city's largest law firm plans to move its offices and, in turn, alter the city's skyline. Kirkpatrick & Lockhart Preston Gates Ellis is moving to One Oliver Center, a 39-story building that now features lighted signs for Ariba, a software firm.

The law firm signed a letter of intent to move by early 2010 and the building will be renamed K & L Gates Center because the firm will become its largest tenant. The building will also remove the Ariba signs and replace them with K & L Gates signs as part of the transition.

Ariba, based in Sunnyvale, Calif., extended its lease at the building to 2017 earlier this year, but it also cut the amount of space it will use from 10 to five floors.

Kirkpatrick & Lockhart will occupy 13 floors of the building.

The law firm has 235 lawyers and 650 employees in the city, and maintains 21 other offices in the United States, Europe and Asia.



Law firms rethinking retirement age
Headline News | 2007/09/14 14:40

How old is too old?

That's an issue facing lawyers across the country as the American Bar Association and state organizations consider proposals to eliminate mandatory retirement ages at many of the biggest and most prestigious law firms.
 
Forced retirement at an arbitrary age -- as early as 60 in some cases -- creates openings for new partners and helps firms avoid tough decisions on whether an older partner is still performing up to standards.

"It's easier to have a bright-line test" -- a clearly defined rule -- said Drew Berry, chairman of the executive committee at McCarter & English, New Jersey's largest law firm.

That way you avoid the difficult problem of making distinctions between two partners, he said. "How do you tell one he can stay and one that he can't?"

But forced retirement can also cost firms some of its most skilled and productive members, including some who might take clients with them, Berry said.

Last month, the ABA endorsed a recommendation from the New York State Bar Association that calls upon law firms to discontinue the practice. Law firms should evaluate senior partners individually based upon the performance criteria used to evaluate other lawyers in the firm, the ABA said.

"Senior lawyers should not be forced to leave their firms solely on the basis of age when they have many productive years left and are still making valuable contributions to the firm," said Mark Alcott, a past president of the New York bar association.

"Forcing lawyers to retire solely because of age, regardless of performance, regardless of objective criteria, is not an acceptable practice and not in the interests of the legal profession," he said.

Because law firms are partnerships, the partners are owners, not employees. As a result, firms can have mandatory-retirement policies despite laws that make them illegal for some of their clients.

But change may be coming.

"While young lawyers represent our tomorrow, we also have a cadre of experienced lawyers who still have much to offer our association and our profession," Lynn Fontaine Newsome, president of the New Jersey State Bar Association, said in a statement on the association's Web site.

She has endorsed a program to explore ways to "reengage senior lawyers so that we can all benefit from their accumulated knowledge and expertise, and enable them to continue to be active bar members."

That's what has happened at Hackensack-based Cole Schotz Meisel, Forman & Leonard, Bergen County's largest law firm, which has no mandatory retirement age.

"What we have is a very flexible arrangement," partner Steven Leipzig said. "We recognize that partners and senior members of the firm continue to make valuable contributions to the firm well into their 60s and 70s."

Name partners Morrill Cole and Edward Schotz are both in their 70s "and continue to practice law vigorously and make a valuable contribution to the firm," Leipzig said.

Absent forced retirement, the firm can attract older partners from smaller firms that will give them and their clients continuity, he said. "That certainly benefits the firm."

Practical considerations prompt some firms to rewrite their rules, as happened at Newark-based McCarter & English this year.

"Like many law firms, we are in transition," Berry said. "We have had for many, many, many years -- try 35 years -- a mandatory retirement age for equity partners of 70. That meant after age 70, you would cease being an equity partner. You could be 'of counsel,' meaning you kept your desk and secretary. But it was all very informal, and you didn't get paid" by the firm.

That system "seemed to work for the firm for a long, long time," but when faced this year with the loss of a highly regarded litigator, simply because he turned 70, the firm decided to change its policy, Berry said.

Attorneys must still retire as equity partners at age 70, but if they are "still in the game, want to keep working, and the law firm wants them to keep working," they can remain on an annual contract basis, he said. They no longer share in earnings and don't vote on firm matters, but are expected to continue practicing at high levels.

"Without falling over into cliches, compared with 25 years ago, some people are active and healthy and 'in the game,' " Berry said. "That's the relevant phrase for me as chairman of the firm. If they're in the game and they're engaged and they're doing well, what are you going to do?"



China to reduce death penalty use
Legal World News | 2007/09/14 13:37

China's Supreme Court has ordered judges to be more sparing in the imposition of the death penalty. An order on its website said execution should be reserved for "an extremely small number of serious offenders". It said the death penalty should be withheld in certain cases of crimes of passion or economic crimes. Amnesty International says China carried out two-thirds of the world's executions last year, but China says it expects a 10-year low this year.

The Supreme Court said murders triggered by family disputes should not always result in the death penalty. Crimes of passion should take into account the offender's payment of compensation, it said.

Similarly, those convicted of economic crimes should be treated more leniently if they help to recoup money that was defrauded. The court suggested greater use of two-year suspensions on death penalties - allowing them to be converted to imprisonment. However, it continued to back capital punishment as a deterrent.

"We must hand down and carry out immediate capital punishment in regard to heinous cases, with iron-clad evidence that result in serious social damage," its statement said.

The most high-profile execution this year was of the former head of the State Food and Drug Administration, Zheng Xiaoyu, for taking 6.5m yuan ($860,000; £430,000) in bribes and for dereliction of duty.

In 2005, an estimated 1,770 executions were carried out and nearly 4,000 people were sentenced to death, human rights group Amnesty International says.

But China says the number has fallen since an amendment came into force this January requiring the Supreme People's Court to approve all death sentences.



An anxious wait for EU court ruling on Microsoft
Legal World News | 2007/09/14 13:36

After a three-year legal battle, the European Union's Court of First Instance is set to rule Monday on EU regulators' antitrust case against Microsoft. Because the ruling will have significant implications for consumers, computer makers, Microsoft's competitors and the ability of the European Commission to regulate technology companies, the stakes are unusually high.

The main topics of interest are expected to be decisions relating to two issues raised by the Commission's March 2004 order against Microsoft, which included a $613 million fine and determinations that the company engaged in a number of anticompetitive practices.

One issue to be addressed by the court deals with whether Microsoft stifled competition by bundling its Media Player with Windows, the market's dominant operating system. The other issue focuses on whether Microsoft provided adequate interoperability protocol information to competitors.

If the court hands the Commission an overwhelming defeat on both the interoperability and Media Player issues, the Commission could find itself neutered, say legal experts.

In recent years, the Commission has aggressively pursued or investigated other technology industry titans, including chipmaker Intel, which faced allegations the company wooed customers with marketing dollars in exchange for their exclusive use of Intel chips. The Commission also took on mobile-phone chipmaker Qualcomm over antitrust issues surrounding its patents for its 3G chipsets, and recently began an antitrust review of Google's proposed $3.1 billion acquisition of online ad company DoubleClick.

Given the Commission's fearlessness in taking on major technology companies over competitive issues, a major defeat in court may leave it with the "wind taken out of its sails," noted Thomas Vinje, an antitrust attorney with Clifford Chance in Europe. The Commission, as a result, may temper the pace and energy with which it pursues cases, he noted.

But should the Commission soundly defeat Microsoft, legal observers say, it's doubtful European regulators will suddenly go on a rampage and pursue marginal antitrust cases.

"The effect of a really big loss would be greater than the effect of a really big win for the Commission," Vinje said.

The $613 million fine called for in the March 2004 order was increased by $357 million last year, after the Commission alleged the software giant had not complied with its original ruling. The Court of First Instance will also issue a decision on the multimillion-dollar fines.

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The court's decision is also expected to have some affect on the Commission's view toward other Microsoft products it is currently investigating, such as the Vista operating system, said Michael Reynolds, an antitrust attorney with Allan & Overy in Europe. The software giant announced in October that it made changes to Vista to accommodate concerns raised by antitrust regulators in Europe and South Korea.

"There already has been some intervention by the Commission," Reynolds said. "But everyone wants to see what the court says, before (finalizing) negotiations with the Commission."

While the court's ruling may have an affect on how antitrust cases are addressed by the EC, one legal expert said it is unlikely Google, Intel, Rambus or Qualcomm will be affected by the Microsoft decision next week.

Google's market share is far lower than that of Microsoft and no barriers exist to prevent users from migrating to another search engine, said Maurits Dolmans, an antitrust attorney with Cleary Gottlieb Steen & Hamilton in Europe.

And while Intel chips are in a majority of all computers, it has a rival, Advanced Micro Devices, and allegations that the chipmaker engaged in predatory pricing in Europe are far different from the issue Microsoft is facing over bundling its Media Player and the interoperability of its server protocols, said Dolmans.

Nonetheless, antitrust attorneys say the decision will be closely watched by a number of parties, from high tech companies to the legal community to other antitrust agencies around the world.

"As a practical matter, I think a lot of the smaller competition jurisdictions will put a lot of weight behind what the Court of First Instance does," said Chris Compton, an antitrust attorney with Wilson Sonsini Goodrich & Rosati. "Korea and Japan may either feel embolden to take action against companies like Microsoft or Intel, or it will constrain them."

As a result, Compton noted, the decision by the Court of First Instance is expected to the most closely watched antitrust decision on a global scale.

"This is a decision," said Compton, "that will have hundreds, if not thousands, of lawyers who'll want to take it apart."



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