Bloomberg News

Gibson Dunn, Shearman & Sterling: Business of Law

December 11, 2012

The U.S. Supreme Court will take up the issue of gay marriage for the first time, agreeing to rule on a California ballot measure banning the practice and a federal law defining marriage as solely an opposite-sex union.

The California dispute will address whether gay marriage is legal in the most populous U.S. state, home to more than 37 million people. The case also gives the justices a chance to go much further and tackle the biggest issue: whether the Constitution guarantees same-sex marriage rights nationwide.

That question is “perhaps the most important remaining civil rights issue of our time,” said Theodore Olson, a Washington partner at Gibson, Dunn & Crutcher LLP, leading the legal fight against the California measure.

In addition to the California case, the justices said Dec. 7 that they will review the U.S. Defense of Marriage Act, a 1996 law that two federal appeals courts said impermissibly treats legally married gay couples differently than heterosexual couples. DOMA, as the measure is known, blocks gays from claiming the same federal tax breaks and other marriage benefits that opposite-sex spouses enjoy.

California voters approved Proposition 8, banning gay marriages, in 2008. The ballot initiative reversed a decision by the California Supreme Court, which five months earlier had said the state constitution guaranteed the right to gay marriage.

In challenging the law, Olson joined forces with David Boies, a partner at Boies Schiller & Flexner LLP and his opponent from Bush v. Gore, the Supreme Court case that resolved the 2000 presidential election deadlock. The pair set out to win a Supreme Court ruling establishing same-sex marriage as a constitutional right.

Olson said in an interview before the court acted that he would make California-specific arguments as well as broader contentions that could establish same-sex marriage rights nationwide. Marriage, Olson said, is a “fundamental right that cannot be taken away from citizens on the basis of their sex or sexual orientation.”

Gay marriage is on hold in California while the litigation plays out. More than 18,000 same-sex couples were married in the state before the ballot initiative passed.

Supporters of the law say it promotes traditional marriage -- and by extension makes it more likely that children will grow up in a nurturing environment.

“Traditional marriage protects civil society by encouraging couples to remain together to rear the children they conceive,” 15 states led by Indiana argued in court papers. “It creates the norm that potentially procreative sexual activity should occur in a long-term, cohabitative relationship.”

The cases the court will review are U.S. v. Windsor, 12-307, and Hollingsworth v. Perry, 12-144.

For more, click here.

News

SEC Accuses Lawyer of Forging Attorney Opinion Letters

The Securities and Exchange Commission said it is suing a Florida-based securities lawyer for issuing fraudulent attorney opinion letters that resulted in more than 70 million shares of microcap stock becoming available for unrestricted trading by investors.

Guy M. Jean-Pierre, of Pompano Beach, was banned by the Pink Sheets, now OTC Markets Group, in April 2010 from issuing attorney opinion letters due to “repeated missing information and inconsistencies” about the issuers and his lack of due diligence in his past letters, SEC said Dec. 7 in a statement.

Jean-Pierre has since engaged in a scheme to continue writing and issuing attorney opinion letters in the name of his niece by applying her signature without her consent, the SEC said.

State Department Adviser Koh and Pentagon GC Johnson to Depart

Two high-profile government lawyers announced plans to leave their posts.

State Department lawyer Harold Hongju Koh is returning to Yale Law School where he was the dean, the Wall Street Journal reported.

Koh was nominated by President Barack Obama in 2009. He was dean at Yale since 2004. He served as assistant secretary of state for democracy, human rights and labor from 1998 to 2001 during the Clinton administration.

As the State Department’s legal adviser, he provided counsel on international law to the secretary of state and embassies around the world. He headed an office of almost 200 lawyers.

Pentagon General Counsel Jeh Johnson has also announced plans to leave, the Wall Street Journal said. Johnson is a former partner at Paul Weiss Rifkind Wharton & Garrison LLP.

Deals

Shearman Advises Bunge on Brazilian Fertilizer Sale to Yara

Shearman & Sterling LLP partner Clare O’Brien led a team advising Bunge (BG:US) Ltd., on the sale of its Brazilian fertilizer business for $750 million to Yara International ASA (YAR), the largest publicly traded nitrogen-fertilizer maker.

Souza Cescon Barrieu & Flesch Advogados advised Bunge on Brazilian law matters.

Yara sees annual synergies of at least $25 million from the cash deal, the Oslo-based company said in a statement Dec. 7. Bunge has 22 blending units in Brazil that produced 4.8 million metric tons of fertilizers in 2011, Yara said. Bunge had revenue of $2.65 billion from the business and adjusted earnings before interest, taxes, depreciation and amortization of $77 million.

Industry producers are seeking acquisitions as the cost of raw materials increases and higher food prices spur farmers to plant more crops, boosting consumption of fertilizers. World demand is poised to climb 3 percent to a record in the 2011-12 season, driven by “attractive” crop prices, the International Fertilizer Industry Association said in February.

Bunge, the world’s second-largest oilseed processor, based in White Plains, New York, and Yara have agreed to a long-term fertilizer supply accord, enabling the U.S. company to continue to provide fertilizer to farmers. Bunge will retain and operate its fertilizer terminal at the port of Santos.

For more, click here.

Firm News

Baker & Hostetler Names New Heads of E-Discovery Group

Baker & Hostetler LLP named litigation partners Gilbert Keteltas and Karin Scholz Jenson national co-heads of its e- discovery advocacy and management team.

Jenson recently took over leadership of the firm’s Madoff Discovery Management Team, a subgroup of the E-Discovery Advocacy and Management Team, which oversees issues arising from the firm’s role as counsel to the SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities, according to the firm’s publicist.

The Madoff bankruptcy and fraud matter has spawned more than 1,000 separate pieces of litigation, and generated more than 28 million documents, the firm said.

Keteltas is a trial lawyer who has directed electronic discovery on major cases. He is on the faculty of the E- Discovery Institute at Georgetown Law School.

Moves

Covington & Burling Hires CFTC Lawyer Julian Hammar

A former assistant general counsel at the U.S. Commodity Futures Trading Commission, Julian E. Hammar, joined Covington & Burling LLP’s corporate, securities, and energy regulation groups as special counsel in Washington.

Hammar will focus on advising clients on the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

During his 13 years at the CFTC, Hammar worked with the Securities and Exchange Commission to draft regulations required by the Dodd-Frank Act. Hammar also provided technical legislative assistance and briefed the Treasury Department and House and Senate Committee staffs regarding aspects of the Commodity Exchange Act, the firm said.

Covington & Burling LLP has more than 800 lawyers at nine offices in the U.S., Europe and Asia.

International Tax Lawyer Joins DLA Piper in Los Angeles

DLA Piper LLP announced that Patrick Connolly joined the firm’s tax practice as a partner in the Los Angeles office. He joins the firm from PricewaterhouseCoopers LLP, where he was a principal in the international tax services group, the firm said.

Connolly focuses his practice on complex international tax matters and transactions for various industries with a strong emphasis on the technology sector.

DLA Piper has 4,200 lawyers in 31 countries and 77 offices throughout the Americas, U.K., Continental Europe, Middle East, Asia and Australia.

Mintz Levin Hires Corporate & Securities Member in San Diego

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC (1367L:US) hired former U.S. Marine Corps officer and DLA Piper LLP partner Marty B. Lorenzo as a member in the corporate and securities practice in San Diego, the firm said.

Lorenzo has experience assisting public and private emerging growth companies in domestic and international transactions involving private equity and venture capital financings as well as mergers and acquisitions. He also advises his international clients on expansion and consolidation projects, reorganization of assets, and cross-border business law matters, the firm said.

Mintz Levin has 500 lawyers in eight offices in the U.S. and London.

Real Estate Lawyer Joins Herrick Feinstein in New York

Herrick, Feinstein LLP hired real estate lawyer Richard R. Kalikow as a partner in the firm’s New York office. Kalikow joins Herrick from Diamond McCarthy LLP where he was a partner, and before that was a partner with Skadden Arps Slate Meagher & Flom LLP for 25 years, the firm said.

He has experience representing U.S. and international clients, including institutional and private investors in acquisitions, financings, leasing, development, joint ventures, real estate funds and other real estate-related matters. He also specializes in representing both lenders and borrowers in connection with workouts and restructurings.

Herrick, Feinstein has 170 lawyers in three U.S. offices.

Bankruptcy

AMR Creditor Lawyer Said to Warn Pilots of Contract-Failure Risk

The lawyer for AMR Corp. (AAMRQ:US)’s unsecured creditors committee warned American Airlines pilots of the risks of rejecting a tentative contract that would allow the carrier’s post- bankruptcy plan to be weighed against a US Airways Group Inc. (LCC:US) merger, three people familiar with the matter said.

Jack Butler of Skadden, Arps, Slate, Meagher & Flom LLP told members of the Allied Pilots Association in meetings in three cities that pilots would lose a 13.5 percent stake in a restructured AMR if the deal isn’t approved, said the people, who asked not to be identified because the talks were private.

A successful vote would help the creditors panel evaluate AMR’s preferred strategy to leave bankruptcy on its own and US Airways’ takeover push. Fort Worth, Texas-based AMR needs a contract with the pilots, the only union without a new accord, to determine its future costs.

Since reaching the tentative agreement on Nov. 9, the union has urged ratification in meetings in eight cities that began Dec. 1, according to the APA’s website.

The sessions to which Butler was invited included a forum Dec. 5 near the airline’s headquarters, the APA said in a message to members on its website.

The case is In re AMR Corp., 11-15463, U.S. Bankruptcy Court, Southern District of New York (Manhattan).

For more, click here.

Video

Sporkin Calls Netflix CEO’s Facebook Post ‘Minor Gaffe’

Thomas Sporkin, a partner at BuckleySandler LLP, talks about the possibility that Netflix Inc. (NFLX:US) and Chief Executive Officer Reed Hastings may face a U.S. Securities and Exchange Commission civil claim over a July Facebook post that coincided with the stock’s biggest gain in almost six weeks.

Sporkin talks with Deirdre Bolton on Bloomberg Television’s “Money Moves.”

The July 3 post by Hastings said Netflix viewing “exceeded 1 billion hours” of videos in June. The shares rose 6.2 percent that day.

SEC staff alleges Netflix and its CEO violated rules governing selective disclosure, according to a company filing Dec. 6.

To read a related story, click here.

To contact the reporter on this story: Elizabeth Amon in Brooklyn, New York, at eamon2@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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