The Black General Counsel 2025 Initiative has launched a new online portal designed to help get 100 African American lawyers in chief legal officer or general counsel positions at top companies within the next five years, according to a Bloomberg Law report.

“April Miller Boise, a former managing partner of Thompson Hine’s Cleveland office, co-founded the Black GC Initiative in 2017 with Ernest Tuckett III, a former general counsel of Dutch chemical giant Akzo Nobel NV’s Americas arm. Tuckett joined Thompson Hine’s Chicago office as senior counsel late last year,” writes Bloomberg’s Brian Baxter.

Now Boise has taken a new job as executive vice president and general counsel at Eaton Corp. plc, a global power management conglomerate and Thompson Hine client.

Read the Bloomberg Law article.

Newsweek reports that the New York City Bar Association has asked congressional leaders to launch a formal inquiry into Attorney General William Barr’s conduct, claiming it threatened the public’s confidence in the “fair and impartial administration of justice.”

“Mr. Barr’s recent actions and statements position the Attorney General and, by extension, the United States Department of Justice (DOJ) as political partisans willing to use the levers of government to empower certain groups over others,” the letter to the congressional leaders stated.

The letter to the leaders highlighted four public statements the AG made that the association found troubling.

Read the  Newsweek article.

Photo by John Phelan

As Trump reshapes the federal judiciary with staunch conservatives and controversial picks, some Harvard Law School students appear to be thinking twice about applying for clerk jobs with them, and passing up what are generally considered plum positions, reports The Boston Globe.

Some Harvard law students are reluctant to clerk for some recent appointees who have been outspoken opponents of gay rights, antiabortion stalwarts, and who have been deemed “not qualified” by the American Bar Association, said one third-year student.

“But some legal scholars worry that the reluctance of students at one of the nation’s premier law schools to clerk for Trump-appointed judges, first reported by Bloomberg Law, could further polarize the legal profession and do the country more harm than good,” writes the Globe‘s Deirdre Fernandes.

Read the Boston Globe article.

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “American Axle: Does Patent Subject Matter Eligibility Depend on Enablement?,” featuring Fitch Even attorneys Stanley A. Schlitter and Andrew C. Wood.

The event will be on Thursday, January 30, 2020, at 9 am PST / 10 am MST / 11 am CST / 12 noon EST. It will also be available as an on-demand webinar after the presentation.

In American Axle & Mfg. Inc. v. Neapco Holdings LLC, the Federal Circuit affirmed a district court ruling that American Axle’s drive shaft patent is ineligible under 35 U.S.C. § 101 because the claims covered an application of a law of nature. American Axle’s petition for rehearing en banc has attracted several amicus briefs, some of which argue that this decision places in jeopardy the validity of many process patents for making physical structures and adds a § 112 enablement requirement to § 101 subject matter eligibility. In general, the decision has created further uncertainty about what a patentee needs to do to meet the requirements of § 101.

During this webinar, the presenters will discuss the following:
• The district court and Federal Circuit decisions in this case
• Arguments presented in the amici briefs
• How American Axle comports with the USPTO’s patent eligibility guidance
• Strategies for litigators and prosecutors regarding Alice in view of American Axle

Register for the webinar.

By Matt Smith
Opportune LLP

Lower natural gas prices are causing exploration and production companies to get creative with their hedging strategies to lock in near-term cash flows above the dismal levels the market is currently offering. When hedging with options, it’s not uncommon for oil and gas producers to sell options and roll the premium value of the sold option into another hedging instrument.

An example of this is a costless collar. With a costless collar, a company buys a put option to establish a floor price they’ll receive for the sale of their commodity. Rather than pay the premium for buying the put option, the company sells a call option with an equal premium to offset the purchased put premium. The sold call option establishes a ceiling price they’ll receive for the sale of their commodity. The result allows a company to participate in commodity prices above the floor price and below the ceiling price.

With calendar 2020 natural gas swap prices below $2.25/MMBtu, traditional swaps and costless collars aren’t appealing to many companies. This, combined with the fact that the NYMEX natural gas futures prices are in contango—where future prices are higher than the spot prices—has led some companies to sell options in future periods and roll the premium into near-term swaps. A strategy that’s gaining popularity is selling swaptions and rolling the premium into near-term swaps.

For example, let’s assume the current NYMEX swap prices are $2.25/MMBtu and $2.45/MMBtu for calendar years 2020 and 2021, respectively. Rather than hedge with swaps at these prices, a company may decide that it would rather sell an option giving the counterparty the right to enter into a swap for 2021 at $2.50/MMBtu (this is commonly referred to as a swaption as it’s the option to enter into a swap). When this option expires in December 2020 (or whichever expiry date is negotiated), if the swap price is above $2.50/MMBtu, the bank will execute their right to swap at $2.50/MMBtu, and if the prices are below $2.50/MMBtu, the bank will not.

A company is able to take the premium from selling the swaption and roll this value into a swap to get an above-market 2020 swap price. In this example, let’s assume the premium was $0.25/MMBtu, and the company would roll the $0.25/MMBtu premium into their 2020 swap to get an above-market swap price of $2.50/MMBtu, rather than $2.25/MMBtu. The downside is that the swaption doesn’t provide any price protection in 2021 if natural gas prices continue to go down and it limits upside potential if natural gas prices increase. However, it has become a viable alternative for many in this tough energy market.

Swaptions can create financial reporting complexities when it comes to determining the appropriate fair value to record in financial statements. Implied volatility inputs for NYMEX options are generally readily available. However, implied volatilities for swaptions are not. Determining appropriate volatility is calculation-intensive and requires consideration of various inputs.

The uniqueness of these trades often leads to a significant amount of attention from auditors, the need for valuation specialists and generally requires additional financial statement disclosures. Opportune’s professionals offer the unique understanding of hedging and financial reporting processes that allow us to add value to clients and meet their fair value reporting needs.

About the Author:
Matt Smith is a director in Opportune LLP’s financial instruments group. He assists companies with their accounting for complex financial instruments under both U.S. GAAP and IFRS. He has experience in derivative valuation and hedge accounting, stock-based compensation, debt and equity financing activities, embedded derivative assessments, Dodd-Frank compliance and SEC reporting. Smith has an undergraduate degree in accounting from Oral Roberts University. He is also a member of the American Institute of Certified Public Accountants.

Steven Zager has joined King & Spalding’s Trial and Global Disputes practice as a partner in the Austin office.

In a release, the firm said Zager is a jury trial lawyer who represents clients in industries including medical devices, telecommunications, computer hardware and software, professional services, transportation, food and beverage, and chemicals.

Zager joined from Akin Gump Strauss Hauer & Feld, where he was based in New York and led that firm’s Intellectual Property practice for many years. He is returning to Austin where he practiced earlier in his career.

Zager has been named a National Law Journal Intellectual Property Trailblazer, one of the top trial lawyers in America by the National Law Journal, and the Go To Lawyer for Litigation in Texas by Texas Lawyer. He was also named a Trial Ace by Law360.

Zager obtained his undergraduate degree and his JD from Vanderbilt University.

Brett Marston of Gentry Locke has been selected by the American Arbitration Association (AAA) to serve as an arbitrator on its Construction Panel. In addition to his role at the firm, Marston will handle AAA arbitration on construction-industry disputes.

The not-for-profit American Arbitration Association (AAA)-International Centre for Dispute Resolution (ICDR) is the largest private global provider of alternative dispute resolution services in the world. The AAA-ICDR aims to move even the most complicated, multi-faceted cases through mediation and arbitration fairly and cost effectively, with the goal of getting parties back to business as soon as possible. The AAA-ICDR Roster of Arbitrators and Mediators is composed of distinguished former judges and leaders in the legal and business communities with industry-specific knowledge and expertise.

Marston chairs the firm’s Construction Law practice group and has experience in construction contract negotiations and preparation, payment disputes, mechanic’s liens, bond claims, construction defects, delay claims, insurance and OSHA matters. He handles construction matters in federal and state courts, arbitration and mediation for general contractors, subcontractors, owners, design professionals and suppliers.

Marston was inducted into the Virginia Law Foundation Fellows Class of 2019, and is consistently selected for inclusion in the annual Virginia Super Lawyers list, has consecutively made their Virginia “Top 10” and “Top 100” lists, and has thrice been named Roanoke Lawyer of the Year for Construction Law by The Best Lawyers in America. Marston was named to the 2018 class of “Leaders in the Law” by Virginia Lawyers Weekly.

He earned his B.A. from the University of Virginia and his J.D., with distinction, from the George Mason University School of Law.

Moore & Van Allen PLLC announced that the four attorneys have been elected as the firm’s newest members: Amanda Carrano Franklin, Andrew R. Price, Nader S. Raja and Nick C. Russell.

Their new designation went into effect on Jan. 1, 2020. All four attorneys are based in Charlotte.

Amanda Carrano Franklin practices in the areas of business immigration and immigration related employer compliance. She works with large multinational corporations, mid-sized employers, and small business start-ups on the full range of employment-based nonimmigrant visas and permanent residence applications. Franklin additionally provides advice to employers on I-9 completion and retention, E-Verify, and H-1B and LCA compliance.

Andrew R. Price practices in the area of financial services. His practice focuses on representing banks, other financial institutions, and private equity sponsors in the structuring and documentation of secured and unsecured syndicated, club and bilateral credit facilities for companies in a wide variety of industries. His experience includes the representation of administrative agents and participant lenders in a broad range of corporate and commercial lending transactions, including acquisition-related financings, leveraged recapitalizations, and working capital facilities.

Nader S. Raja works with clients facing complex and high-stakes litigation, regulatory and reputational issues. He focuses on commercial litigation and white-collar criminal defense. In addition, Raja serves as chair of the firm’s Housing Rights Pro Bono Project, as co-champion of the Charlotte Triage Eviction Project, and is a member of the firm’s Recruiting Committee, Diversity Committee and Public Service Committee.

Nick C. Russell handles intellectual property matters, with a focus on patent preparation, prosecution, patent portfolio management, and patent investigations, such as freedom-to-operate, non-infringement and invalidity investigations.

Bloomberg Law takes a look at the hundreds of Kirkland & Ellis hard-working, non-share partners who live in a sort of limbo—a solid step above associate status, but still well-short of achieving the coveted position of equity partner, where they are able to share in the firm’s largesse.

Bloomberg’s Roy Strom explains:

“It’s an exchange that helps fuel the bottom line at one of the world’s richest law firms: Kirkland gets non-share partners’ blood, sweat, and tears, and billable hours. And in return, non-share partners bank on the experience and contacts gained at Kirkland in hopes that despite the significant blow of not getting coveted Kirkland shares, they can land well elsewhere.”

Read the Bloomberg Law article.

Bloomberg Law is reporting that Troutman Sanders and Pepper Hamilton have voted to merge, creating a 1,100-lawyer firm with offices in 23 cities known as Troutman Pepper Hamilton Sanders.

Current Troutman managing partner Steve Lewis will become chair and CEO of the combined firm, and Pepper Hamilton chair Tom Gallagher will become vice chair.

“Troutman is the larger of the two firms, taking in nearly $525 million in revenue in 2018—good for 68th most among U.S. law firms, according to the latest AmLaw rankings,” writes Bloomberg’s Roy Strom.

Read the Bloomberg Law article.

The U.S. Justice Department says the Equal Rights Amendment can no longer be ratified because its deadline expired decades ago, throwing a barrier in the path of activists who want the amendment enacted if ­Virginia’s new, majority Democratic legislature approves it, reports The Washington Post.

Thirty-eight states are required to pass a constitutional amendment, and only 35 had approved it before the 1979 deadline and a subsequent extension to 1982, explains the Post‘s Patricia Sullivan. Two more states ratified the ERA since 2017, and Virginia would be the 38th.

The ERA Coalition said it “strongly disagrees” with the DOJ’s memo.

Read the Washington Post article.

Eileen Brown has been named the managing partner of Thompson Coburn’s Washington, D.C., office effective Jan. 1, 2020. Brown serves as a co-chair of Thompson Coburn’s national Transportation and Project Finance group and is a member of its Management Committee.

Brown is the second female managing partner of the D.C. office; she succeeds partner Margie Krumholz, who has led the office since 2008. Nearly 50 percent of the lawyers in Thompson Coburn’s D.C. office are women.

Brown represents government entities, financial institutions, and publicly traded companies in international, asset-based and project finance transactions, government guaranteed finance, and equipment leasing. She also represents local and regional transportation agencies, companies buying, selling and operating aircraft, and lenders and lessors to marine operating companies.

She has served as outside counsel to the Export-Import Bank of the United States (Ex-Im Bank) for 14 years, and has helped facilitate financings for transportation, energy, agricultural, mining and development projects around the world.

Brown joined Thompson Coburn’s Management Committee in 2019. She has been an active member of the Firm’s Total Commitment Women’s Initiative, led programming efforts in the D.C. region on behalf of the initiative, and served as a mentor to female attorneys.

Before joining Thompson Coburn, Brown was an attorney with the U.S. Maritime Administration, focusing on the Title XI loan guarantee program. She also served as counsel for International Registries, Inc. (IRI) when the IRI served as the corporate and maritime administrator for the Republics of Liberia and the Marshall Islands.

She is a member of the Maritime Law Association and a longtime member of the Equipment Leasing and Finance Association (ELFA), which recently appointed her to the organization’s national Legal Committee.

A resident of Arlington, Virginia, Brown earned her J.D. from Catholic University of America Columbus School of Law and obtained a B.A. from Villanova University.

“As of January 1, 2020, California became the first state to permit residents whose personal information is exposed in a data breach to seek statutory damages between $100-$750 per incident, even in the absence of any actual harm, with the passage of the California Consumer Privacy Act (“CCPA”). The class actions that follow are not likely to be limited to California residents, but will also include non-California residents pursuing claims under common law theories.” advises Jena M. Valdetero in Bryan Cave Leighton Paisner’s Insights.

“A successful defense will depend on the ability of the breached business to establish that it implemented and maintained reasonable security procedures and practices appropriate to the nature of the personal information held.  The more prepared a business is to respond to a breach, the better prepared it will be to defend a breach lawsuit.”

She provides a list that the organization’s WISP should include at a minimum.

Read the article.

Miller & Chevalier Chartered announced the elections of Ann Sultan and James R. (Jim) Gadwood as Members of the firm. The promotion was effective Jan. 1.

The firm said Ann Sultan focuses her practice on internal and government investigations, international corporate compliance, and white collar defense, particularly the Foreign Corrupt Practices Act and anti-money laundering laws and regulations. Sultan also advises public companies and senior executives on compliance assessments, due diligence, risk management, U.S. Department of Justice and U.S. Securities and Exchange Commission enforcement actions, and interactions with external auditors in the context of accounting and financial reporting matters.

Jim Gadwood has a federal tax practice, including tax accounting, transfer pricing, opportunity zones, the non-deductibility of fines and penalties, debt-versus-equity determinations, and earnings-stripping rules. He regularly assists clients with special industry tax issues, including insurance companies, investment funds, and investor-owned utilities. He has represented taxpayers in connection with Internal Revenue Service (IRS) examinations, conferences with the IRS Independent Office of Appeals, and requests for advance pricing agreements, changes in accounting method, technical advice memoranda, and private letter rulings.

Parthiv Rishi has joined Sidley Austin LLP’s Singapore office as a partner in its global M&A and Private Equity practice. Rishi was previously a partner at Linklaters LLP, where he led the firm’s financial sponsor and private equity practice in Southeast Asia.

Rishi has advises major corporates and large financial institutions on all forms of corporate transactions, including M&A, joint ventures and corporate restructurings. In particular, he focuses his practice on advising private equity funds and financial sponsors, as well as their portfolio companies. Additionally, he is experienced in advising on renewables and infrastructure M&A. Rishi has an active cross-border client base extending across Europe and Asia. Most recently, he advised on deals in Singapore, Hong Kong, Indonesia, Cambodia, Vietnam, Malaysia and India.

“Clauses in employment contracts may appear benign when a contract is signed, but then later balloon into serious problems.” warns Devin R. Bates and Lauren Grinder in Mitchell Williams’ Between the Lines.

This article addresses several commonly litigated issues. They caution that “There is no one-size-fits-all solution for employment contracting, but it would be wise to heed the old adage that an ounce of prevention is worth a pound of cure.”

Read the article.

“Limitation of liability provisions place limits on the amounts that the parties would otherwise be able to recover in court.” Rob Scott of Scott Technology Attorneys in the blog discusses how “Broad limitations of liability in IT contracts have given way to more balanced approaches where certain types of claims are carved out from the limitation altogether.”

“Limitations of liability clauses in AI contracts are particularly important given the unsettled nature of the law in this area.”

Read the article.

A suspect has been arrested in connection with the stabbing murder of a prominent Illinois litigator.

The victim, Randy Gori, practiced asbestos, benzene and personal injury litigation in both Illinois and Missouri, according to the Belleville News-Democrat.

According to charging documents, Timothy Banowetz, 28, of Missouri, bound the hands of Gori and two minors in Gori’s home before using a knife to stab Gori, killing him. Banowetz stole cash and two cell phones from the victims before fleeing in the stolen car, investigators said.

The commander of the investigation team said that Gori’s last acts “likely saved the lives of others,” referring to the minors who were in the home at the time of the attack.

Investigators have not established a connection between Gori and Banowetz.

Read the News-Democrat article.

HP Inc. was awarded $439 million in damages against Quanta Storage Inc. and its U.S. subsidiary after a federal judge tripled a jury’s 2019 award for damages caused by a widespread scheme to inflate the price of optical disk drives, Bloomberg reports.

Sony, Panasonic and some other disk-drive makers settled with HP over the past decade. Only Taiwan-based Quanta chose to go to trial.

Quanta lost that trial in October when a Houston jury ordered Quanta to pay HP $176 million in damages. Now the federal judge in the case has tripled the damages award, as authorized under antitrust law, to $528 million before deducting $89 million in settlements paid by the other companies.

Read the Bloomberg article.

A suspended Rhode Island lawyer has admitted to illegally collecting more that $200,000 in pension funds for a deceased client for nearly a dozen years after the man’s death, reports the Providence Journal.

Oleg Nikolyszyn, 65, pleaded guilty to two counts of mail fraud and one of theft from an employee benefit pension fund for collecting $234,586 from December 2003 through September 2015 in the name of a former employee of the City of Providence, the report explains.

In a separate case,  Newsday reports that an attorney from Long Island was indicted on a grand larceny charge for stealing more than $300,000 from an elderly client.

Peter Rand stole funds from an irrevocable trust created by the client, a man in his 80s, between April 1, 2014, and Feb. 3, 2015, officials said.

Read the Providence Journal article.

Read the Newsday article.