Author: National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.

Here We Go Again: Another Attempt at Recovery for Ratepayers Resulting from KeySpan-Morgan Stanley Swap

Found recently in the National Law Reviewwas an article by Daniel E. Hemli and Jacqueline R. Java of Bracewell & Giuliani LLP regarding KeySpan-Morgan Stanley:

Another class action lawsuit has been filed against KeySpan Corporation (KeySpan) and Morgan Stanley Capital Group Inc. (Morgan Stanley), claiming damages for antitrust violations resulting from an allegedly illegal swap agreement that allowed KeySpan to manipulate energy prices in the New York City electric generating capacity market (NYC Capacity Market), see Konefsky et al. v. KeySpan Corp., et al., Case No. 1:12-cv-00017. The complaint was filed on January 6, 2012 in the U.S. District Court for the Western District of New York on behalf of electric customers of National Grid, which purchased electric energy and capacity in the NYC Capacity Market from 2006 through 2009. The plaintiffs, two law professors, are seeking on behalf of the class millions in damages and disgorgement of unlawfully obtained profits for alleged violations of Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act, as well as analogous New York state laws.

As described in previous blog entries in February 2010 and February 2011, the underlying actions that led to this complaint involve a 2006 financial swap agreement between KeySpan and Morgan Stanley, which gave KeySpan an indirect financial interest in the sale of generating capacity by its largest competitor, Astoria Generating Company, in the NYC Capacity Market. At that time, approximately 1000 MW of new generation was poised to come online in that market. Previously, due to tight supply conditions, KeySpan, as the largest seller of installed capacity in the market, had been able to bid at or near the applicable bid cap without risking loss of sales. The anticipated addition of new generating capacity threatened to upset the status quo and put downward pressure on prices.

In February 2010, the Department of Justice (DOJ) brought an action against KeySpan alleging that the swap resulted in a violation of Section 1 of the Sherman Act. The DOJ claimed that KeySpan’s financial interest in Astoria’s capacity reduced KeySpan’s incentive to competitively bid its capacity, enabling KeySpan to profitably bid capacity at the price cap, despite the addition of significant new generating capacity that otherwise likely would have caused prices to drop. According to the DOJ, this arrangement led to higher capacity prices in New York City and, in turn, higher electricity prices for consumers than would have prevailed otherwise, thereby violating Section 1 of the Sherman Act. KeySpan agreed to pay $12 million in disgorgement of profits to the U.S. Treasury to settle the matter. The DOJ subsequently also took action against Morgan Stanley, simultaneously filing a complaint and proposed settlement on September 30, 2011 pursuant to which Morgan Stanley agreed to pay $4.8 million in disgorgement.

The latest class action complaint is similar to another class action brought against KeySpan and Morgan Stanley, in the U.S. District Court for the Southern District of New York, see Simon v. KeySpan Corp., et al., Case No. 1:10-cv-05437. That attempt to obtain a judgment on behalf of ratepayers was rejected by the district court in March 2011. In dismissing the Simon complaint, the court explained in its opinion that (i) because the class members were indirect purchasers of electric generation capacity, they had not suffered antitrust injury and therefore lacked antitrust standing to bring the case; (ii) the filed rate doctrine, which bars private actions where a rate has been previously approved by FERC, applied in that case; and (iii) plaintiff’s state law claims were barred by the doctrine of federal preemption. That case is currently being appealed to the Second Circuit.

‘Outsider’ Candidate Santorum Collected Millions in Corporate PAC Money

An article published in the National Law Review recently by Josh Israel and Aaron Mehta of the Center for Public Integrity regarding Candidate Santorum’s PAC Campaign Donations:

Santorum’s corporate backers: Santorum took on ‘special interests’ while collecting millions in corporate PAC money

Who bankrolled Rick Santorum?

Rick Santorum the presidential candidate casts himself as a Washington outsider, “one of the most successful government reformers in our history,” according to his campaign bio, “taking on Washington’s powerful special interests from the moment he arrived in our nation’s capital.”

But Rick Santorum the House and Senate member received more than $11 million in contributions from corporate and other special interest political action committees (PACs) over his career, according to a Center for Public Integrity investigation.

Among the largest donors are giants from the telecommunications, tobacco, and banking industries, the analysis found. The Center examined contributions to the Pennsylvanian’s congressional, senatorial and 2012 presidential campaigns — as well as his “America’s Foundation” and “Fight PAC” leadership PACs, entities set up by Santorum to aid others in their political campaigns.

Corporate PACs connected to telecommunications firms that became today’s AT&T Inc. poured more than $98,000 into Santorum’s campaign coffers, making the behemoth his top career patron.

Those donations may have been rewarded with support for the industry; in 1996 Santorum was one of 91 Senators to approve the heavily lobbied rewrite of telecommunications law that deregulated the industry.

Government watchdog group Common Cause decried the industry for “buying” the legislation.

Verizon Communications Inc. (and companies now part of the Verizon empire, including GTE, Bell Atlantic Corp., NYNEX and Verizon Wireless, a joint venture with British wireless giant Vodafone Group PLC), also made the top-ten (No. 6), with more than $75,000 in corporate PAC contributions.

Santorum’s second-highest total came from the Altria Group, including predecessor companies like the Philip Morris Companies and U.S. Tobacco. The makers of Marlboro cigarettes and Skoal tobacco have spent more than $96,000 in PAC funds to advance Santorum’s political career.

Santorum, a member of the Senate Committee on Agriculture, Nutrition and Forestry, opposed increased restrictions on the tobacco industry — joining with 39 other Republicans and two tobacco-state-Democrats to kill the 1998 Universal Tobacco Settlement Act.

The bill aimed to “prevent the use of tobacco products by minors” and to “redress the adverse health effects of tobacco use.” It also would have incorporated a settlement requiring the industry to pay billions of dollars to state governments. After Congress failed to pass it, a narrower settlement was reached between the tobacco companies and state attorneys general.

In addition, documents made public as a result of the tobacco settlement with the states indicate that representatives from Philip Morris communicated with then-Rep. Santorum in 1994 during the debate on the Clinton health care reform proposals.

A March 20, 1994, interoffice memo notes that several company employees attending public meetings with Santorum reported “very positive” conversations aimed at ensuring his opposition to an increase in the federal excise tax on cigarettes.

Santorum’s Nos. 3, 4, 5, 7 and 8 backers were all financial services companies. Bank of America Corp. and companies it has acquired gave more than $92,000; PNC Financial Services Group Inc., a Pittsburgh-based bank, gave more than $87,000; JPMorgan Chase & Co. gave at least $76,000; Wells Fargo & Co. gave more than $73,000; and Bank of New York Mellon Corp. gave more than $69,000.

Santorum served on the Senate’s Committee on Banking, Housing and Urban Affairs and was one of 54 senators to back the Financial Services Modernization Act of 1999 (commonly known as Gramm-Leach-Bliley), a bank deregulation law signed by President Clinton.

That law eliminated several restrictions on the size and scope of banks, precipitating the mergers that allowed these and other financial services giants to merge and grow. The law has been blamed for setting the stage for the financial collapse of 2008 and resulting recession. Despite the banks’ largesse, Santorum has been a vocal opponent of the Troubled Asset Relief Program bank bailout, often using it as a club against other Republican candidates.

Rounding out the top 10 were GlaxoSmithKline PLC (more than $68,000), a pharmaceutical company, and energy powerhouse Exelon Corp. (more than $67,000).

Corporate PACs are funded by employees who may give up to $5,000 per calendar year. The PAC itself may give $5,000 per election to candidates. These PACs are usually controlled by the corporation’s chief lobbyist.

It should be no surprise that Santorum’s donors are among the biggest corporate interests in the country.

The anti-tax lobbying group Club for Growth rates Santorum’s record on economic issues in the U.S. Senate as “above average,” while the U.S. Chamber of Commerce gave him a 100 percent rating for 2005.

And if elected, it is likely Santorum will continue his support for business.

On his website he promises to cut the corporate tax rate in half “to make our businesses competitive around the world,” eliminate the corporate income tax for manufacturers and sharply reduce taxes on repatriated foreign income. The Center recently reported on how the issue of repatriation is currently a cause célèbre for many large corporations.

As Bloomberg reported recently, since his 2006 Senate re-election defeat, Santorum has received hundreds of thousands of dollars in directors’ fees and stock options from Universal Health Services Inc. Though it did not rank among his top patrons, Santorum received at least $11,500 from that company’s PAC.

Santorum later received a consulting contract with Consol Energy Inc., reportedly worth more than $140,000. The Pennsylvania-based company donated almost $20,000 to Santorum while he was in office. The Center previously reported on Consol’s long-wall mining operations in southwestern Pennsylvania.

Santorum’s campaign did respond to a request for comment on this story.

Here is a list of Santorum’s top 10 political action committee donors:

AT&T – at least $98,603

Altria – at least $96,500

Bank of America – at least $92,250

PNC – at least $87,805

JPMorgan Chase – at least $76,000

Verizon – at least $75,165

Wells Fargo – at least $73,050

Bank of New York Mellon – at least $69,374

GlaxoSmithKline – at least $68,305

Exelon – at least $67,589

Source: Center for Public Integrity analysis of contributions from political action committees to Rick Santorum’s congressional, senatorial, and presidential campaign committees and leadership PACs: “America’s Foundation” and “Fight PAC.” Data was obtained from subscription-only CQ-MoneyLine, and covered Santorum’s first campaign, in 1989-1990. The data was retrieved Jan. 4, 2012.

Republican presidential candidate, former Pennsylvania Sen. Rick Santorum speaks during a town hall meeting in South Carolina.David Goldman/AP

7th Drug & Medical Device Litigation Forum, 7-8 Mar 2012, Philadelphia

The National Law Review is pleased to inform you of the 7th Drug & Medical Device Litigation Forum: Implementing Appropriate Litigation Readiness and Costs Management Policies That Ensure An Effective Defense at Trial

Event Date: 7-8 Mar 2012

Location: Philadelphia, PA, United States

Key conference topics

Mitigate and maintain costs associated with litigation

Gain judical insight on drug and medical litigation and its recent developments

Build better relationships with outside counsel in order to reduce the miscommunciation factor

Understand the limitations of marketing and advertising as it relates to emerging social media issues

Learn the latest on medical device product liability

Conference focus

Pharmaceutical and medical device manufacturers have faced a growing array of legal challenges this year. With the increase of mass tort litigation, as it relates to product liability, pharmaceutical and medical device manufacturers must be prepared to defend the increasingly sophisticated, well-funded and multi-jurisdictional product liability campaigns against their companies.

The 7^th Drug and Medical Device Litigation Conference will be a two-day, industry focused event specific to those within Drug & Medical Device Litigation, Product Liability and Regulatory Affairs in the Medical Device, Biotech and Pharmaceutical industries.

By attending this event, industry leaders will share best practices, strategies and tools on incorporating litigation readiness, utilizing cost efficient litigation strategies and accurately managing policies to ensure an effective defense at trial.

Attending This Event Will Enable You to:
1. Review the current landscape of drug and medical device litigation
2. Learn strategies in settlements and mass tort issues
3. Manage litigation expenses in order to effectively manage costs
4. Review recent case rulings, including the Mensing and Levine cases
5. Take a view from the bench: explore drug and medical device litigation
from a judicial point of view
6. Tackle product liability issues and challenges
7. Uncover the risks for drug and medical device companies when leveraging social media for marketing and advertising campaigns

With a one-track focus, the 7^th Drug and Medical Device Litigation Conference is a highly intensive, content-driven event that includes case studies, presentations and panel discussions over two full days.

This is not a trade show; our Drug and Medical Device Litigation conference series is targeted at a focused group of senior level leaders to maintain an intimate atmosphere for the delegates and speakers. Since we are not a vendor driven conference, the higher level focus allows delegates to network with their industry peers.

Testimonials:

“Great selection & breadth of speakers. Uniformly high quality of presentations. Intimate nature of meeting provided excellent opportunities for networking” – Abbott

“Great venue to learn and exchange best practices. More importantly how to leverage lesions learned from others.” – Baxter

“One of the best meetings I’ve attended. Excellent organization, topics and speakers. Overall extremely well done.” – Sanofi Aventis

marcusevans

Affordable Care Act Holding Insurers Accountable for Premium Hikes

Featured recently in the National Law Review an article by the U.S. Department of Health & Human Services regarding Health Care Premium Hikes:

Health insurance premium increases in five states have been deemed “unreasonable” by the U.S. Department of Health and Human Services, HHS Secretary Kathleen Sebelius announced today.

After independent expert review, HHS determined that Trustmark Life Insurance Company has proposed unreasonable health insurance premium increases in five states—Alabama, Arizona, Pennsylvania, Virginia, and Wyoming. The excessive rate hikes would affect nearly 10,000 residents across these five states.

To make these determinations, HHS used its “rate review” authority from the Affordable Care Act (the health care law of 2010) to determine whether premium increases of over 10 percent are reasonable.

“Before the Affordable Care Act, consumers were in the dark about their health insurance premiums because there was no nationwide transparency or accountability,” said Secretary Kathleen Sebelius. “Now, insurance companies are required to disclose rate increases over 10 percent and justify these increases. It’s time for Trustmark to immediately rescind the rates, issue refunds to consumers or publicly explain their refusal to do so.”

In these five states, Trustmark has raised rates by 13 percent. For small businesses in Alabama and Arizona, when combined with other rate hikes made over the last 12 months, rates have increased by 27.2 percent and 18.1 percent, respectively. These increases were reviewed by independent experts to determine whether they are reasonable. In this case, HHS determined that the rate increases were unreasonable because the insurer would be spending a low percent of premium dollars on actual medical care and quality improvements, and because the justifications were based on unreasonable assumptions.

In addition to the review of rate increases, many states have the authority to reject unreasonable premium increases. Since the passage of the health care reform law, the number of states with this authority increased from 30 to 37, with several states extending existing “prior authority” to new markets.

Examples of how states have used this authority include:

In New Mexico, the state insurance division denied a request from Presbyterian Healthcare for a 9.7 percent rate hike, lowering it to 4.7 percent;
In Connecticut, the state stopped Anthem Blue Cross Blue Shield, the state’s largest insurer, from hiking rates by a proposed 12.9 percent, instead limiting it to a 3.9 percent increase;
In Oregon, the state denied a proposed 22.1 percent rate hike by Regence, limiting it to 12.8 percent.
In New York, the state denied rate increases from Emblem, Oxford, and Aetna that averaged 12.7 percent, instead holding them to an 8.2 percent increase.
In Rhode Island, the state denied rate hikes from United Healthcare of New England ranging from 18 to 20.1 percent, instead seeing them cut to 9.6 to 10.6 percent.
In Pennsylvania, the state held Highmark to rate hikes ranging from 4.9 to 8.3 percent, down from 9.9 percent.

Today’s announcement comes the same week that a report showed that health care spending has grown at remarkably low rates. According to an analysis done each year by the Centers for Medicare & Medicaid Services, U.S. health care spending experienced historically low rates of growth in 2009 and 2010. A recent study released by Mercer Consulting also showed a slow-down in the average employee health benefit cost to businesses.

The Affordable Care Act includes several policies, including rate review, to continue this slow growth. By fighting fraud, better coordinating care, preventing disease and illness before they happen and creating a new state-based insurance marketplace, it helps keep health care cost growth low.

For more information on the specific determinations made today, please visit http://companyprofiles.healthcare.gov/

ISS Updates Proxy Voting Guidelines for 2012

Recently found in the National Law Review an article by David A. Cifrino, PC, Thomas P. Conaghan, Andrew C. Liazos, Anne G. Plimpton and Heidi Steele of McDermott Will & Emery regarding Proxy Voting Guidelines:

ISS has released its annual update to its proxy voting guidelines for the 2012 proxy season. The update reflects changes in ISS’s pay-for-performance evaluation methodology, responses to say-on-pay votes and say-on-pay frequency votes and a number of social and environmental policies.

Institutional Shareholder Services Inc. (ISS) has issued its annual update to its proxy voting guidelines, which have important implications for companies preparing for the 2012 proxy season. The updated policies apply to shareholder meetings held on or after February 1, 2012. The annual update reflects changes in ISS’s approach towards the evaluation of executive compensation, responses to say-on-pay votes and say-on-pay frequency votes and a number of new or updated social and environmental policies. The full text of the policy updates may be accessed here.

The 2012 updates require attention by issuers before the start of upcoming proxy season. An issuer that benefitted from a favorable ISS say-on-pay voting recommendation in 2011 may receive a negative ISS say-on-pay voting recommendation in 2012 despite no change to its corporate performance or executive pay program. At the same time, some issuers with total shareholder return performance less favorable than in 2011 may be able to secure a favorable ISS say-on-pay voting recommendation. To do so, it may be necessary to address additional corporate performance and executive pay matters for the first time in upcoming proxy statements. If an issuer secured less than seventy percent shareholder support for the 2011 say-on-pay vote, failure to address the issuer’s response to that vote consistent with the 2012 updates may result in an against or withhold voting recommendation by ISS with respect to compensation committee members (or, in egregious cases, the entire board).

Key changes reflected in the 2012 updates are summarized below.

Pay-for-Performance

One of the most important changes in the updated ISS proxy guidelines is the change in the manner of analyzing pay-for-performance to provide a “more robust view of the relationship between executive pay and performance” from both a short-term and long-term perspective. The updated ISS policy, as reflected below, is more detailed in its analysis.

	2011 ISS pay-for-performance analysis	2012 ISS pay-for-performance analysis
Peer Group Alignment:	Total shareholder return (TSR) over a one- and three-year period compared to a company’s peer group	The alignment of a company’s TSR and the CEO’s total pay with that of its peers over a one-year and three-year period
		CEO total pay as compared to the peer group median
CEO pay aligned with Total Shareholder Return:	The relationship between CEO pay and TSR over recent and long-term periods	The degree of alignment between the trend in CEO pay and the trend in annualized TSR over a five year period.

Under the revised guidelines, ISS will identify a company’s peer group as 14-24 companies selected based on market capitalization, revenue (or assets for financial firms) and Global Industry Classification Standard (GICS). In most, if not all, cases this group will be different than the peer group a company uses in its determination of executive compensation.

If ISS finds that pay and performance are “misaligned” based on the above new criteria, it will evaluate additional qualitative factors such as performance goals in relation to overall compensation, time-based versus performance equity awards, financial results of the company and any other relevant factors to determine whether the compensation practices support long-term value creation and are aligned with shareholder interests. Mitigating factors may be considered as well, such as the mix of performance- and non-performance-based pay, biennial grant practices, impact of a newly hired chief executive officer (CEO) and the rigor of performance programs.

The revised guidelines state that in general, a new CEO will not exempt the company from consideration under the analysis “as the compensation committee is also accountable when a company is compelled to significantly ‘overpay’ for new leadership due to prior poor performance.”

While the new policy provides more detailed criteria for ISS’s analysis, the new policy does little to provide predictability for companies in assessing where they will land on ISS’s evaluation spectrum for pay-for-performance. ISS will continue to evaluate pay-for-performance on a case-by-case basis. ISS expects to provide additional guidance on is pay-for-performance methodology in December 2011.

Compensation Committee Members and 2012 Say-on-Pay Vote

ISS’s 2012 Policy Survey indicates that shareholders expect explicit responses from companies describing measures to improve their pay practices where the prior year’s say-on-pay proposal failed to garner “meaningful support” (i.e. opposition vote greater than 30 percent). If a company’s 2011 say-on-pay proposal received less than 70 percent of the votes cast, ISS will recommend votes on a case-by-case basis for compensation committee members (and in extreme cases, for the full board) and management say-on-pay proposals.

ISS’s recommendation will take into account a company’s disclosure as to its response to the say-on-pay voting results, including substantive disclosure of company discussions with major institutional investors regarding the reasons behind the low levels of support and specific board actions taken to address the compensation practices that prompted the lack of support.

In the wake of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) and ever-increasing scrutiny on executive pay, ISS’s updated policy is a reflection of the growing demand for engagement by companies with their shareholders regarding compensation practices and policies. It is important to remember that this change in ISS policy is occurring at the same time as SEC proxy rules require issuers to disclose the extent to which the compensation committee has taken into account the say-on-pay voting results from the 2011 proxy season. It is prudent for issuers with relatively low levels of support from shareholders to take special care in disclosing the compensation committee’s response to the 2011 “say-on-pay” vote, particularly with respect to outreach efforts with investors. Issuers may also want to consider if any additional action by the compensation committee is appropriate prior to its 2012 proxy filing.

Company Response to Frequency of Say-on-Pay Votes

U.S. Securities and Exchange Commission (SEC) rules require companies to provide shareholders the opportunity to vote on the frequency with which advisory say-on-pay votes will be held. ISS will recommend voting against any incumbent director on a board that implemented a say-on-pay vote less frequently than the frequency which received the greatest number shareholder votes.

Proxy Access

Earlier this year, the SEC lifted its stay on its 2010 amendments to Securities Exchange Act Rule 14a-8, restricting the exclusion of proxy access bylaw proposals in proxy statements in 2012. Because the debate on proxy access is still fluid, ISS’s policy is intended to provide ISS with flexibility on proxy access proposal recommendations and does not provide guidance on specific elements of proposals that it would support. ISS will continue to recommend votes on these proposals on a case-by-case basis, but will focus on specific factors in its analysis, such as the percentage and duration thresholds for stock ownership, the maximum proportion of directors that shareholders may nominate each year and the method of determining which nominations will be included on the ballot if multiple shareholders submit nominations. ISS expects to issue additional guidance in January 2012 on this matter, based on its examination of the texts of specific proposals.

Risk Oversight for Directors

ISS notes that a number of failures in risk oversight by boards in recent years have given rise to greater emphasis on the board’s risk oversight function, and points to recent well publicized corporate scandals as examples of such failures. As a result, ISS revised its list of failures that could lead to a recommendation to vote against an incumbent director in an uncontested election to explicitly include risk oversight.

ISS’s criteria for determining whether a corporate disaster or scandal has a causal nexus to a board’s oversight function is unclear. Nevertheless, companies should ensure that their board’s risk oversight policies are up-to-date and clearly described in their public filings.

Social/Environmental Policy Updates

ISS also adopted or updated several social and environmental policies. These reflect the increased “traction” of shareholder initiatives seeking more transparency on corporate governance processes with respect to certain social and political issues. Among the new/updated policies are:

Political Spending– the updated ISS policy provides for a general recommendation to vote in favor of proposals that request disclosure of a company’s political contributions and trade association spending policies and activities rather than recommending votes on a case-by-case basis as had been the previous ISS policy.

Lobbying Activities –the updated ISS policy recommends a vote in favor of proposals relating to any effort by a company to inform or sway public opinion as opposed to recommendations only for formal political lobbying activities as had been the previous ISS policy.

Hydraulic Fracturing – a new policy regarding the natural gas extraction technique, typically called fracking, to vote in favor of proposals that request greater disclosure of a company’s fracking operations and measures taken to mitigate community and environmental risks. The recommendation will take into account several factors, including (i) the company’s disclosure compared to its peers and (ii) controversies, fines or litigation related to its fracking operations.

Workplace Safety – a new policy recommendation to vote in favor of proposals requesting workplace safety reports, including reports on accident risk reduction efforts.

Water Issues – a new policy to recommend, on a case-by-case basis, voting on proposals that request a company establish a new policy regarding or provide a report on water-related risks and concerns.

The 15th Annual ABA National Institute on the Gaming Law Minefield Feb 24-25 LasVegas

The 2011 Gaming Law Minefield program is specifically designed to provide in-depth coverage and discussion of the cutting-edge legal, regulatory, and ethical issues confronting both commercial and Native American gaming. Attorneys, compliance officers, Native American leaders, regulators, and legislators will all provide invaluable insights into current trends, opportunities and obstacles in the gaming industry. The program’s subject matter includes new gaming technology, increased IRS CTR and SAR compliance audit activity, Internet gaming, Native American gaming, breaking hot topics in the gaming industry, latest developments in dealing with problem gamblers, and a two-hour CLE-certified ethics program.

The Gaming Law Minefield program constitutes one of the most comprehensive, state-of-the-law gaming programs available. Program attendees have consistently rated the program as a valuable educational experience that provides participants with the opportunity to meet and talk with a wide variety of gaming law experts and leading state and Native American regulators.

Early Bird Registration ends January 24th. For More Information: Click Here:

Pepsi to Pay $3.13 Million & Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans

Recently the National Law Review published an article by the U.S. Equal Employment Opportunity Commission regarding Hiring Discrimination by Pepsi towards African-Americans:

Company’s Former Use of Criminal Background Checks Discriminated Based On Race, Agency Found

MINNEAPOLIS – Pepsi Beverages (Pepsi), formerly known as Pepsi Bottling Group, has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed in the Minneapolis Area Office of the U.S. Equal Employment Opportunity Commission (EEOC). The monetary settlement will primarily be divided among black applicants for positions at Pepsi, with a portion of the sum being allocated for the administration of the claims process. Based on the investigation, the EEOC found reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964.

The EEOC’s investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment. Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense.

Pepsi’s former policy also denied employment to applicants from employment who had been arrested or convicted of certain minor offenses. The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.

“The EEOC has long standing guidance and policy statements on the use of arrest and conviction records in employment,” said EEOC Chair Jacqueline A. Berrien. “I commend Pepsi’s willingness to re-examine its policy and modify it to ensure that unwarranted roadblocks to employment are removed.”

During the course of the EEOC’s investigation, Pepsi adopted a new criminal background check policy. In addition to the monetary relief, Pepsi will offer employment opportunities to victims of the former criminal background check policy who still want jobs at Pepsi and are qualified for the jobs for which they apply. The company will supply the EEOC with regular reports on its hiring practices under its new criminal background check policy. Pepsi will conduct Title VII training for its hiring personnel and all of its managers.

“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office. “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

“We obtained significant financial relief for a large number of victims of discrimination, got them job opportunities that they were previously denied, and eradicated an unlawful barrier for future applicants,” said EEOC Chicago District Director John Rowe. “We are pleased that Pepsi chose to work with us to reach this conciliation agreement and that through our joint efforts, we have been able to bring about real change at Pepsi without resorting to litigation.”

The EEOC enforces federal laws against employment discrimination. The EEOC issued its first written policy guidance regarding the use of arrest and conviction records in employment in the 1980s. The Commission also considered this issue in 2008 and held a meeting on the use of arrest and conviction records in employment last summer. The EEOC is a member of the federal interagency Reentry Council, a Cabinet-level interagency group convened to examine all aspects of reentry of individuals with criminal records.

The Minneapolis Area Office is part of the EEOC’s Chicago District. The Chicago District is responsible for investigating charges of discrimination in Minnesota, Illinois, Wisconsin, Iowa and North and South Dakota. Further information is available at www.eeoc.gov.

Inside Counsel presents the 12th Annual Super Conference in Chicago

National Law Review is pleased to bring you information about the upcoming 12th Annual Super Conference sponsored by Inside Counsel .

Reasons why you should Attend This Year’s Event:

Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.

Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:

Chief Legal Officers
General Counsel
Corporate Counsel
Associate General Counsel
CEOs
Senior Counsel
Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

New Generic Top-Level Domain Names Available

An article featured recently in the National Law Review by Lori S. Meddings and Laura M. Konkel of Michael Best & Friedrich LLP discussed The Availability of Generic Top-Level Domain Names:

On June 20, 2011, the Internet Corporation for Assigned Names and Numbers (“ICANN”) approved the

implementation of a new generic top-level domain (“gTLD”) program that will allow businesses, organizations and other institutions to obtain their own domain name extensions, such as .library or .brand. Registration of a .brand gTLD is an attractive option for some brand owners, affording greater control over the brand’s online presence. Generic gTLDs, like .library, can be operated for the benefit of multiple organizations with an interest in the term or several companies within a particular industry.

Applications for new gTLDs will be accepted via an online interface from January 12, 2012 through April 12, 2012. There is $185,000 application fee and significant additional costs and obligations may be incurred during the application process, which is expected to take at least one year. Several companies are available to assist with the application process and other obligations of the gTLD owner should the application be approved, such as hosting and management of the gTLD. While ICANN plans to offer additional application periods in the future, the exact dates are not yet available and may end up being several years out.mentation of a new generic top-level domain (“gTLD”) program that will allow businesses, organizations and other institutions to obtain their own domain name extensions, such as .library or .brand. Registration of a .brand gTLD is an attractive option for some brand owners, affording greater control over the brand’s online presence. Generic gTLDs, like .library, can be operated for the benefit of multiple organizations with an interest in the term or several companies within a particular industry.

If you choose not to register a .brand gTLD, you can still monitor the program for potentially infringing applications and oppose those applications, for a fee, through ICANN’s dispute resolution service providers.

Detailed information about ICANN’s gTLD program, the application process and an applicant’s financial and legal commitments can be found here:http://newgtlds.icann.org.

Author: National Law Forum

Here We Go Again: Another Attempt at Recovery for Ratepayers Resulting from KeySpan-Morgan Stanley Swap

Like this: