BS&F is lead counsel to the Bank of New York Mellon in a multi-billion dollar suit brought by the Russian Federal Customs Service against the Bank in the Moscow State Arbitrazh Court. This is the same court in which the Russian Government previously brought actions against Yukos and PricewaterhouseCoopers.

The lawsuit seeks $22.5 billion in damages from the Bank under the United States

BS&F Defends $22 Billion Litigation Brought by Russian Customs Service Against Bank of New York Mellon

lion—the largest antitrust recovery ever in U.S. history.

The case arose out of an agreement by Visa, MasterCard and their member banks to adopt and abide by rules that prohibited banks from issuing American Express and Discover cards in the United States. Both American Express and Discover filed private damages actions in late 2004.

FIRM REPORT

NEW YORK WASHINGTON DC FLORIDA CALIFORNIA NEW HAMPSHIRE NEW JERSEY NEVADA

Jonathan Schiller

David Boies

continued on page 4

continued on page 5

On February 19, 2008, BS&F obtained a unanimous victory from a New York intermedi-ate appellate court. The appeal breaks new ground on privi-lege law in New York. It was filed on behalf of Maurice R. “Hank” Greenberg, the for-mer Chief Executive Officer

and Director of American In-ternational Group, Inc. (AIG). Nick Gravante argued the appeal.

On June 5, 2008, the New York Court of Appeal dis-missed AIG’s motion to ap-peal the February ruling.

Nick Gravante

BS&F Wins Appellate Victory on Ground Breaking Privilege Issue

BS&F Negotiates Second Historic Antitrust Settlement for American Express

Just seven months after the $2.25 billion settlement of American Express’s antitrust claims against Visa, BS&F, led by David Boies and Donald Flexner, negotiated a $1.8 billion settlement with Visa’s co-defendant, MasterCard. The settlement was announced on June 25, 2OO8. The combined settlements bring the total re-covery the Firm obtained on behalf of American Express to more that $4 bil-

RICO statute. The case arises out of alleged lost tax revenues caused by a money transfer scheme during the 1990s run by a rogue Bank employee, her husband, and her Rus-sian contacts unaffiliated with the bank. The employee was bribed by certain Russian banks to help facilitate the transfers, without the knowledge of the Bank. In 2005, the Bank entered into a non-prosecution agree-ment with the United States Attorney in

JULY 2008

INSIDE THIS ISSUE

Litigation Highlights 2 Expert View Column 7 Pro Bono Highlights 9 New Firm Partners & Counsel 10 Summer Associates 13 Legal Talk 14

continued on page 5

In March 2008, a Florida court granted summary judgment for the Firm’s cli-ent Florida Power & Light Company (FPL) in a de-claratory judgment action brought by FPL against JEA, the municipal electric utility in Jacksonville, Flor-ida. In response to the deci-sion, Vice President and As-

sociate General Counsel of FPL Robert Sendler stated, “I’m thrilled. Summary judgments, particularly in cases of this magnitude, are few and far between.”

In April 1982, FPL and JEA, then known as Jacksonville Electric Authority, entered into an agreement for the ownership, construction, and operation of two coal-fired electric generating units known as the St. Johns River Power Park (the Generators).

As part of the contract, FPL agreed to purchase a por-

Page 2 JULY 2008

BS&F Obtains Summary Judgment for Plaintiff Florida Power & Light in $358 Million Contract Dispute

tion of JEA’s ownership share for a forty-year period in order to obtain 50% of the Generators’ total output. Because JEA financed its share of the construction costs with tax-exempt bonds, however, Treasury regula-tions restricted FPL’s cumulative purchases to a per-centage of JEA’s ownership interest in the Generators’ “nameplate capacity.”

The key dispute turned on what the contract meant by using the term “nameplate capacity.” Were JEA’s in-terpretations to prevail, FPL projected that it would receive all of its purchase entitlement approximately two years earlier than would be the case if FPL’s posi-tion prevailed. This, in turn, would have required a substantial near term cash investment ($358 million, according to JEA) by FPL.

On March 25, 1998, the Court ruled for FPL, adopting verbatim its definition of “nameplate capacity.”

Gary Harris of the Orlando Office wrote the briefs and argued the motion for FPL in this matter.

On March 31, 2008, BS&F attorneys achieved a signifi-cant victory on behalf of a national class of plaintiffs charging Quixtar Corporation (formerly known as Am-way) with operating an illegal pyramid scheme when Judge Samuel Conti of the Northern District of California denied Quixtar’s motion to dismiss or stay and compel arbitration. The district court was highly critical of Quixtar’s Alter-nate Dispute Resolution (ADR) program, finding it pro-cedurally and substantively unconscionable and “too tainted to be saved.” It condemned nearly all of Quix-tar’s ADR provisions, such as Quixtar’s training of arbi-trators and its unilateral power to amend or apply the ADR rules, finding that “the ADR deck could not possi-bly be stacked more in Quixtar’s favor than it is here.” Quixtar has appealed the decision to the Ninth Cir-cuit. Judge Conti has stayed discovery pending resolu-tion of the appeal, recognizing the significance of his

decision and that it is contrary to some other courts’ conclu-sions about Quixtar’s ADR processes. Quixtar/Amway, according to the complaint, is a recruitment-driven marketing scheme which attracts members with tales of profits that are rarely

ever achieved, is facing increased scrutiny world-wide. The Indian and British governments have launched investigations of Amway’s operations in their countries, and multiple actions are pending against Quixtar across the United States. The BS&F team includes Stuart Singer, David Shapiro, Carlos Sires, Bill Dzurilla, Sigrid McCaw-ley, Gera Peoples, and Josh Riley.

Gary Harris

LITIGATION HIGHLIGHTS

BS&F Obtains Win in Nationwide Class Action over Pyramid Marketing Scheme

David Shapiro

JULY 2008 Page 3

In January 2008, BS&F filed an Amicus Curiae brief in the Su-preme Court in District of Co-lumbia v. Heller, the important Second Amendment case re-cently decided by the Court.

The brief, filed on behalf of nineteen members of Congress,

asked the Supreme Court to overturn a decision by the United States Court of Appeals for the D.C. Circuit which struck down the District of Columbia’s ban on handguns, and offered an important Congressional perspective on the Second Amendment and the ap-propriate resolution of the case.

The Court affirmed the D.C. Circuit’s ruling in June, by a 5-4 vote. The Court’s decision is expected to give rise to a wave of new lawsuits presenting Second Amendment challenges to existing laws and regulations.

The brief was prepared by Scott Gant, Ellen Blanchard, Chris Hayes and Mike Mitchell, with valuable guidance and assistance from David Boies, Don Flexner and David Barrett.

Scott also participated as a panel member in a mock Su-preme Court argument for the attorney representing the District of Columbia, which was the subject of a Washing-ton Post article on March 18, 2008.

BS&F Files Amicus Brief in Supreme Court in Second Amendment Challenge to D.C.’s Handgun Ban

Third Circuit Affirms BS&F Victory Dismissing $9 Billion Case Against Qwest On June 10, 2008, the United States Court of Appeals for the Third Circuit affirmed a New Jersey federal judge’s dismissal of litigation seeking $9 billion in damages from the Firm’s longtime client, Qwest Com-munications International, Inc.. (See Firm Report, “BS&F Wins Dismissal of $9 Billion Claim against Qwest,” November 2006, page3.) On July 14, the Court denied a petition for rehearing or rehearing en banc. Jonathan Sherman argued the appeal for Qwest.

The suit arose from the 2002 bankruptcy of KPNQwest, a Dutch company that provided fiber op-tic data services, which was partially owned by Qwest. The plaintiffs were trustees appointed by the Dutch court overseeing the KPNQwest bankruptcy. They asserted claims against Qwest and three individ-

ual defendants on behalf of the KPNQwest estate under both Dutch law for mismanagement and under U.S. RICO law. By suing in the United States, the trustees hoped to avail themselves of treble damages under RICO and of more liberal U.S. discovery procedures. The lower court dismissed on grounds of for-eign non conveniens—that the case belongs in the Netherlands.

In a decision it denominated “precedential,” the Third Circuit affirmed the trial court’s discretionary decision to dismiss—breaking a string of some 25 years of reversing judges who had dismissed cases in the circuit on grounds that a more convenient forum existed for the case. The

LITIGATION HIGHLIGHTS

Ellen Blanchard

Jonathan Sherman

continued on next page

Bloomberg and Reuters reported, “’The highest Court in the State of New York has recognized that AIG has been improperly withholding documents from Mr. Greenberg for over three years,’” according to Nick Gra-vante.

In the February ruling, five judges of the Appellate Di-vision of the New York Supreme Court held that Mr. Greenberg has the unequivocal right of access to privi-leged documents in AIG’s files created during his ten-ure as a director and officer of AIG. The decision represents ground-breaking precedent concerning the rights of former corporate directors and officers to ob-tain access to otherwise privileged corporate records for use in litigation about the exercise of their duties and it is a major victory in Mr. Greenberg’s defense to civil claims filed against him by former New York State Attorney General Eliot Spitzer.

The Attorney General’s complaint against Mr. Green-berg alleges that a handful of the hundreds of thou-sands of transactions AIG entered during Mr. Green-berg’s tenure into which were misrepresented in the company’s financial disclosures. As a part of his de-fense, Mr. Greenberg sought the production of docu-ments from AIG that would demonstrate that he had

consulted with or overseen those who consulted with attorneys who advised AIG and signed off on the trans-actions at issue. Although AIG did not contest that Mr. Greenberg has been entitled to access privileged materi-als during his tenure at AIG. AIG refused to allow him continued access to the documents, citing both the at-torney-client privilege and the attorney work product doctrine. In September 2006, the trial court agreed with AIG and held that Mr. Greenberg was not entitled to access any of AIG’s privileged documents created dur-ing his tenure at the company.

The unanimous decision reversed the trial court. The documents to which the ruling permits access will be relevant to Mr. Greenberg’s de-fense that, as the chief executive of-ficer of a company with almost 100,000 employees, he relied upon the direct and indirect approval of AIG’s counsel and accountants in entering into the transactions. In an

interview with the New York Times, Nick Gravante stated, “’These documents will show that Mr. Greenberg relied on in-house and outside counsel.’”

In addition to Nick Gravante, lawyers responsible for this win include Amy Neuhardt and Stephen Larson.

Amy Neuhardt

JULY 2008

Ground Breaking Privilege Issue , continued from page 1

court started from the proposi-tion that plaintiffs who reside outside the United States (with adequate alternative fora where they reside) but who choose to sue in the United States are not entitled to receive the default rule of deference accorded to plaintiffs’ forum choice. Going on from there, the Court stressed the existence of parallel proceedings, witnesses, docu-ments in Europe, all concerning the KPNQwest bankruptcy, and

that the trial court did not abuse its discretion in weighing the bal-ance in favor of Qwest.

In addition to Jonathan Sherman, BS&F lawyers who worked on the appeal included Jonathan Schiller, Jim Denvir, Jonathan Shaw, Scott Gant, Louis Smith, Ellen Blanchard, Melissa Felder, Melissa Kho and Aaron Snow.

Third Circuit Affirms BS&F Victory, continued from page 3

LITIGATION HIGHLIGHTS

Page 4

Stephen Larson

Louis Smith

Page 5 JULY 2008

The Wall Street Journal described the twin settlements as "among the largest ever for an individual company," and quoted David Boies as saying they "dwarf" any previous class action antitrust settlement. The New York Times called them "the richest settle-ments in corporate history."

The settlement with MasterCard resolves all remaining claims in the case.

In addition to David Boies and Donald Flexner, key team members included: Philip Bowman, Cynthia Christian, Robert Cooper, John Cove, Steven Davis, Richard Drubel, Richard Feinstein, Damien Mar-shall, Kieran Ringgenberg, Alanna Rutherford, Jack Simms, Jack Stern, Todd Thomas, Marcy Lynch, Kimberly Schultz, Hershel Wancjer, Edward Baker, Stephen Bourtin, John Clifford, Mikal Condon, Mi-chael Favretto, Matthew Henken, Matthew Tripolit-siotis, and Theodore Uno.

Historic Antitrust Settlement, continued from page 1

LITIGATION HIGHLIGHTS

Donald L. Flexner

New York and agreed to forfeit $14 million.

Purporting to rely on al-leged admis-sions in the non-

prosecution agreement, the Federal Customs Service filed litigation in 2007, nearly a decade after the un-derlying events. It argues that—despite its admission that it cannot prove actual damages—it is enti-tled to more than three times the amount of money transferred un-der RICO. The Russian court is now considering whether it can apply a U.S. public law like RICO.

On April 7, 2008, the Bank filed a

motion to dismiss the case for lack of jurisdiction. Jonathan Schiller led a team of lawyers from the Firm, along with former Attorney General Dick Thornburgh and Former U.S. Court of Appeals Judge Abner Mikva, to Moscow to assist Russian counsel in arguing the Bank's position that the case should be dismissed under prin-ciples of international and U.S. law. The Court heard testimony from the Customs Service's experts in two days of hearings on June 30 and July 3. An additional hearing on jurisdic-tion is scheduled for July 28.

In a Financial Times article leading up to the hearings in Moscow on June 30, Jonathan Schiller explained, “The US will not permit, and has not for 200 years, the application of a for-eign government's tax laws in the

United States. Just as Russia would-n't expect the US to collect taxes over there.” The FT article charac-terized the case as a test of Presi-dent Dmitry Medvedev's pledges to strengthen the Russian judiciary's independence.

In addition to Jonathan Schiller, the BS&F team includes Todd Tho-mas, Da-mien Mar-

shall, Lee Wolosky, Paul Kunz, Heather King and Alec Schultz. Mike Brille, Jonathan Sherman, Amy Neuhardt and Dean Kawa-moto have provided assistance.

Bank of New York Mellon, continued from page 1

Todd Thomas

Damien Marshall

On July 17, 2008, the U.S. Dis-trict Court for the Western Dis-trict of Wisconsin awarded a summary judgment in favor of BS&F client FPL Energy Point Beach (FPL Energy) in a dispute with Australian uranium pro-ducer Energy Resources of Aus-tralia (ERA) The dispute arose in connection with FPL Energy’s purchase of two nuclear plants in September 2007 from Wisconsin Electric Power Company. ERA maintained that it had not con-sented to the assignment of the full rights to purchase uranium covered by agreements it had in place with Wisconsin Electric.

A BS&F team led by Stuart Singer, which included William D’zurilla, Justin Fitzdam and Lauren Fleischer, filed suit in the Western District of Wiscon-sin—one of the “rocket docket” jurisdictions. ERA, part of Rio Tinto, one of the largest mining companies in the world, repre-sented by Baker & McKenzie, vigorously defended and filed counterclaims.

The matter was originally set for trial in May 2008, but was contin-ued to September 2008 when the case was transferred to US Dis-trict Judge Barbara Crabb. An expeditious schedule of discovery proceeded, including the taking of a number of depositions by videoconference from Australia,

with BS&F lawyers participating from Florida and ERA’s lawyers participating from Chicago.

In the Spring, BS&F briefed a motion for summary judgment, raising several independent grounds on which the court could find that ERA either con-sented to the full assignment of rights, had no power under the contract to prevent the assign-ment, an, in any event, had acted unreasonably. BS&F’s litigation team consulted with BS&F cor-porate partners Christopher Boies and Robert Leung on crafting its arguments.

In its order on July 17th, the Dis-trict Court agreed with BS&F’s first argument that the assign-ment was in fact unconditional and covered all of the rights to purchase uranium provided for in the contract with Wisconsin Electric. The Am Law Litigation Daily, continuously updated cov-erage from The American Lawyer’s newsroom, reported on the Firm’s win for FPL Energy, and in a play on words, ran the head-line, “More Power to Boies, Schiller and Flexner Client In Contract Dispute."

Page 6 JULY 2008

LITIGATION HIGHLIGHTS

BS&F Wins Summary Judgment for FPL Energy in Uranium Assignment Case

Stuart Singer

William D’zurilla

Lauren Fleischer

EXPERT VIEW

RECENT MONTHS have seen a wave of litiga-tion spawned by the so-called “credit crisis.” Ac-tions between financial insti-

tutions regarding the “failure” of transactions involving derivative securities, such as credit default swaps (CDS) or mortgage-backed securities (MBS), are of particular note and the focus of this writing.

At the core of some of the more interesting lawsuits is a default declaration of some sort, which generally stems from an assertion that the value of the security at issue has declined to or below a point that triggers margin obliga-tions or early termination rights.

Many core legal principles about valuation flow from an assump-tion that the price of a security reflects its fair market value. There is an assumption—or at least a presumption—that the capital markets are efficient and that the observed price of a secu-rity reflects all publicly available information. For example, the

JULY 2008 Page 7

Derivative Securities In the Credit Crisis Is all fair without market value?

fraud-on-the-market doctrine ab-solves individual investors bringing a 10b-5 claim from having to prove personal reliance on specific, alleg-edly false statements in purchase or sale decisions, thereby paving the way for class action adjudication of such disputes. See Basic Inc. v. Levin-son, 485 U.S. 224 (1988). Damages analyses in securities litigation simi-larly proceed from the view that price reactions upon a news an-nouncement reflect the “value” of that announcement.

Over-the-counter (OTC) deriva-tives are generally not traded on a public exchange, but are instead, creatures of private contract. In contrast to an exchange-traded stock, the value of an OTC deriva-tive contract cannot be determined by reference to a closing price on an exchange. Indeed, OTC deriva-tives may not trade at all after their initial creation. How then should such instruments be valued in the litigation context? Is “mark to market” valuation legitimate in the context of a liquidity crisis such as the markets recently witnessed? What legal principles govern whether it is appropriate to use such valuations to determine the propriety of a margin call, the mag-nitude of margin owed, or appro-

Robin Henry

By Robin Henry BS&F’s Armonk Office

priate termination values?

LITIGATION EXPOSURE Recent months have seen substan-tial hedge fund losses and in some cases hedge fund failures precipi-tated by counterparty margin calls on leveraged trades involving CDS and MBS (or other asset-backed securities (ABS)). Most of the ensu-ing litigation has focused on fraud-in-the-inducement or other com-mon law theories aimed at unwind-ing or reforming the trades that pre-cipitated the failure. While valid as abstract legal theories, such argu-ments will be hard to prove up as courts are generally loath to release parties from contracts. The argu-ment of the complaining institution can almost always be character-ized—whether fairly or not—as “sour grapes” over a trade that went against it. Every trade has a winner and loser and courts are not in the business of absolving trading coun-terparties of bad bets. Framed in that manner—and it will almost always be possible to charac-terize the debate that way—such arguments seem unlikely to succeed. It is perhaps worth noting that the governing agreements generally in-clude jury trial waivers, but not ar-bitration provisions. “Jury risk” is

continued on next page

JULY 2008 Page 8

thus typically not an issue in these cases. It is equally unlikely, though, that litigation will come to a halt. What other arguments might be made? It is a virtual certainty that future litiga-tion will surround the validity of margin calls on highly leveraged trades and resultant liquidations and close-out valuations. While the in-dustry standard Master Agreement of the International Swaps and Deriva-tives Association or the Master Re-purchase Agreement of the Bond Market Association (collectively, the Master Agreements) provide a mechanism for determining trade values in contested situations, they do not foreclose— and indeed may be characterized to permit— argu-ments relevant to the current circum-stance. Specifically, the valuation provisions of the Master Agree-ments—whether Market Quotation, Loss or the newly adopted Close-out Amount provision— may be suscep-tible of an argument that they pre-suppose the existence of a market or at least readily observable inputs into a mark to model valuation.

Some will argue that much of the recent “devaluation” in CDS, MBS and other ABS stemmed from a de-cline in market liquidity rather than a change in their expected future cash flows, or what might be called, at least by some, “fundamental value” as might, for instance, be precipitated by a change in the yield curve. The

ing documents, or under more gen-eral standards of commercial reason-ableness, it is likely that some chal-lenges will also invoke common law doctrines of economic duress and other theories of lender liability in which one party to the trade alleges that its counterparty sought to create pressure that would allow it to buy assets at distressed prices. These tend to be difficult theories to prove, but if they survive summary judgment they will create risk for creditors

Reprinted and excerpted with permission from the July 7, 2008 edition of the New York Law Journal. © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

For the full article please go to www.bsfllp.com/news/

in_the_news/000068

The Expert View is a new addition to our Firm’s newsletter. Submis-sions for the Expert View column should be emailed to

newsletter@bsfllp.com.

EXPERT VIEW

market for these securities effec-tively dried up. With no market, many of these assets were valued and reflected as so-called “Level 3 assets” on the books of dealers, precisely because no actual trades were being done and the data in-puts necessary to value them were not observable in the market.

If a court were to find that the contractually specified valuation provisions are dependent upon the existence of a market—or at least the ability to observe the necessary data inputs in the mar-ket—it follows that many current mark to market valuations do not meet these requirements. Use of such valuations, one could then argue, is a breach of the governing contract. It seems likely that courts would then require a com-mercially reasonable valuation, a contractual term that could exist either expressly or by implication. The amorphous nature of this concept could itself lead to litiga-tion as debtors challenge actions on that ground alone.

CONCLUSION These uncertainties in valuation measurements are likely to lead to litigation challenging the validity of default declarations and margin calls (which are dependent upon legitimate, good faith valuations). If default declarations can be suc-cessfully challenged either under the express terms of the govern-

Page 9 JULY 2008

On January 18, 2008, Chief Judge Steven McAuliffe of the District of New Hampshire denied the New Hampshire Attorney General’s motion to dismiss our pro bono client Robert Breest’s section 1983 complaint seeking post-conviction DNA testing. The Court held that “there is a federal constitutional right to post-conviction access to genetic material evidence for DNA testing purposes – a right that is rooted in procedural and substantive due process rights pro-tected by the Fifth and Fourteenth Amendments, though the contours and reach of that right remain imprecise.” The Court’s decision is just the fourth – all of them district court decisions – to hold that such a right exists under the Constitution.

In denying the motion to dismiss, Judge McAuliffe rejected the conclusions of the three U.S. Courts of Appeals that declined to find a federal constitutional right to post-conviction access to biological evidence for the purpose of DNA testing. BS&F represented the plaintiff in one of those cases in Alabama – Dar-rell Grayson, who was executed by the state on July

26, 2008, less than a year after the Eleventh Circuit denied his section 1983 appeal. The Breest Court disposed of the Grayson opinion with a “but see” citation.

The Breest Court’s opinion contains broad and eloquent language, which seems likely to be quoted by attorneys and courts for years to come. The legal discussion begins this way:

Elusive as it may sometimes be, truth is the proper object of the justice system. Crimi-nal juries are routinely instructed not to be concerned about whether the government wins or loses a particular case, because the government always wins when the truth prevails and justice is done, whether the verdict be guilty or not guilty. Prosecutors, especially, are duty bound to ascertain the truth, whatever it might be, and not merely to pursue criminal convictions. Therefore, it is, or ought to be, axiomatic that the truth is never untimely and never to be feared by the government.

New Hampshire Federal Judge Permits Post-Conviction DNA Testing to Show Actual Innocence of BS&F Pro Bono Client

On January 8, 2008, BS&F obtained a significant ap-pellate win in the Ninth Circuit for its pro bono client Darin Greene concerning the rights of maximum se-curity inmates to freely exercise their religion while in custody.

While Mr. Greene was detained at the Solano County Jail in California awaiting trial, he was classified as a maximum security inmate. As a matter of policy, the jail forbids group worship services for all maximum security inmates. Mr. Greene claimed that the policy violated his rights to free exercise of religion under the First Amendment, 42 U.S.C. § 1983, the federal

Religious Land Use and Institutionalized Persons Act (RLUIPA), and the California State Penal Code.

Mr. Greene represented himself in the United States Dis-trict Court for the Eastern District of California, where the Solano County Jail successfully moved for summary judgment. The court held that Mr. Greene could not show that the jail’s policy substantially burdened his exer-cise of religion given the availability of alternative forms of worship. The court further held that the policy was per-missible under the First Amendment because it had a rea-sonable relationship to legitimate penological objectives, and was permissible even under the more exacting

BS&F Prevails on Appeal in Ninth Circuit Free Exercise of Religion Case

continued on page 12

PRO BONO HIGHLIGHTS

continued on page 12

JULY 2008

BS&F Acquires Prominent Family Law Practice BS&F is pleased to announce the ac-quisition of Miller, Schwartz & Miller LLP (MSM), a Hollywood, Florida law firm specializing in matrimonial and family law as well as real estate and probate. Founded in 1968 by James Fox (Jim) Miller, MSM is a small practice with high-profile cli-ents and numerous important wins

to its credit. Its matrimonial attorneys Charles Fox Miller, A. Matthew Miller, and Robert M. Schwartz are members of The American Academy of Matrimo-nial Lawyers, as well as members of the International Academy of Matrimonial Lawyers. These attorneys have played a primary role in resolving matrimonial dis-putes and other complex litigations throughout Florida and the United States. Jim, in particular, has partici-pated in many cases in other states, including Califor-nia, Massachusetts, New Jersey, New York, West Vir-ginia, and Tennessee. The Firm’s real estate and probate practice is headed up by Joseph L. Schwartz. Joe, a Harvard Law graduate, is a member of Real Property, Probate and Trust Sec-tion of The Florida Bar, as well as a Board Certified Real Estate Lawyer. He is considered one of the best

real estate and probate lawyers in Florida. According to Jim, “David Boies and I have talked about practicing law together for many years. Matrimo-nial specialists, as a general rule, practice in small bou-tiques and not in large firms. However, over the years, David and I have found that our litigation practices are not so different and that a family law practice would add

value at BS&F.” When asked how he feels about joining BS&F, Jim says, “I feel great because it gives me and my son Charles, who may be the best matrimonial lawyer in the country under forty-five, a chance to build a national matrimonial practice for the best firm I know. Of course, I am very excited about practicing with David, my best friend since law

school; with Steve Zack, whom I followed as President of The Florida Bar; and with others whom I have con-sidered good friends for years.” Considered one of the premiere family law attorneys in the United States, Jim served on the Board of Gover-nors of The Florida Bar for five years (1988-1991), and is one of the few family law attorneys to serve as Presi-

James Fox Miller

Joseph L. Schwartz

NEW FIRM PARTNERS & COUNSEL

Page 10

BS&F Attracts New Partner Bill Ohlemeyer Bill Ohlemeyer, former Asso-ciate General Counsel of Altria Group Inc., joined BS&F as a partner in April 2008. Effective early September, Bill will com-mence a full schedule at the Firm, dividing his time between the New York and Armonk

offices. A graduate of the University of Missouri and the Uni-versity of Missouri School of Law, Bill has coordinated Altria’s tobacco litigation since 1999. After graduation from law school, Bill joined Shook, Hardy & Bacon LLP in Kansas City, Missouri, making partner in 1991.

At Shook Hardy, he won many of the dozen or so cases he tried on behalf of Lorillard Tobacco Co. and Philip Morris USA. In August 1999, following the tobacco industry’s $206 billion settlement with 46 state governments, Altria hired Bill to orchestrate the company’s U.S. tobacco litigation strategy and dampen the threat of escalating lawsuits. Altria’s defense strategy, which Bill managed, involved defending cases on the merits through the appellate process, and resulted in a significant reduction of suits filed against Altria. “Bill is a great trial lawyer,” stated David Boies. “At Al-tria he really had a unique set of experiences, both in

Bill Ohlemeyer

continued on next page

continued on page 12

JULY 2008 Page 11

Former Dean of Yale Law School Arrives at BS&F Tony Kronman, regarded as one of the country's leading experts in legal ethics, the study of the legal profession and corporate governance, joined the Firm in June 2OO8. Tony will be lo-cated in the Armonk office. Building on the existing working relationships he shares with David and Christopher Boies, Phil Korologos and Robert

Silver and intent on developing new working relation-ships with attorneys in BS& F's corporate and litigation practice areas, Tony will put his expertise to work in

commercial litigation and corporate governance matters. Tony has often served as an expert consultant in con-tract litigation, including the massive Texaco-Pennzoil case and acted as the lead director of Adelphia Commu-nications for 4 years. Tony held a PhD in philosophy before earning a law degree from Yale Law School. And for the past thirty years, Tony was on faculty at Yale Law School, which included serving as Dean for ten years from 1994 to 2004.

New Counsel Eric Jaso Brings Wealth of DOJ and Private Practice Expertise to BS&F

Eric Jaso joined the Firm's Short Hills, New Jersey office as Counsel in April 2008. At BS&F, Eric will focus on complex litigation, includ-ing appeals. He intends to draw on his government experience in working on False Claims Act cases, securities fraud and criminal mat-

ters, and both government and internal corporate in-

vestigations. A 1992 graduate of the University of Chi-cago, Eric has devoted significant parts of his career to both public service and private practice. He served as an official of the Department of Justice and Education Departments in Washington, D.C., and as a federal prosecutor in Newark, New Jersey; his law firm experi-ence included Cravath, Swaine & Moore and Latham & Watkins.

Tony Kronman

Eric Jaso

NEW FIRM PARTNERS & COUNSEL

preparing cases for trial, and in case management. In the product-liability area, you can have tens, hundreds, thousands of lawsuits at the same time. Just the logis-tics of managing those cases in a sensible and cost-effective way is a challenge,” commented David. He further said, “Nobody in the country has had the kind of experience that Bill has. I think we already have one of the better product-liability practices in the country. And I think with Bill here, we’ll have a unique advan-tage over any other firm in terms of product liability.” As for his decision to join BS&F, Bill says, “I wasn't concerned about having a title or being the general

counsel somewhere just to say I’m the general counsel. This opportunity reminds me of what I found twenty years ago when I left law school: great people who have a variety of really interesting and complicated legal issues, and who really put a premium on working together to solve problems. That's a great day at the office.”

Bill Ohlemeyer, continued from page 10

Page 12 JULY 2008

RLUIPA standard because the policy furthered a com-pelling governmental interest by the least restrictive means. Applying the same reasoning, the court granted the jail summary judgment on Mr. Greene’s other claims as well. On appeal, the Ninth Circuit appointed BS&F to repre-sent Mr. Greene pro bono. In January 2008, in a pub-lished decision, Greene v. Solano County Jail, 513 F.3d 982

(9th Cir. 2008), a unanimous Ninth Circuit panel re-jected all of the jail’s arguments, reversed the district court, and remanded the case for further proceedings on all of Mr. Greene’s claims. The Firm will continue to represent Mr. Greene on re-mand. Mr. Greene’s case is being handled by Fred Norton, who was assisted in the appellate phase by summer associate Meredith Dearborn.

In the wake of the decision, BS&F reached a favorable settlement with the Attorney General’s office under which the potentially exculpatory crime scene evidence from Mr. Breest’s 1971 murder trial was sent to a private laboratory for DNA testing. The Firm also recovered $18,000 in attorneys’ fees in the settlement, and it do-nated $10,000 of that amount to the Innocence Project.

BS&F was Mr. Breest’s only counsel in the litigation, but the firm consulted with the Innocence Project from the outset. Attorneys at BS&F who worked on this matter include Chris Green and John Clifford.

Free Exercise of Religion Case , continued from page 9

PRO BONO HIGHLIGHTS

NEW FIRM PARTNERS & COUNSEL

dent of The Florida Bar or any state bar. He is also a Charter member of the College of Family Law Trial Lawyers. He has been named in all 25 editions of Best Lawyers and one of 500 leading lawyers in America ac-cording to Lawdragon. In addition to his many other ac-complishments, Jim has written a number of highly re-garded articles. He was one of the first commentators to write in favor of “value billing.” His article on that topic, The Curse of the Legal Profession, has been repub-lished in full or in part in many law school texts, includ-

ing Regulation of Lawyers: Problems of Law and Ethics (7th ed. 2005), by Stephen Gillers, the Emily Kempin Pro-fessor of Law at NYU School of Law. Charles Fox Miller and A. Matthew Miller are also named in Best Lawyers. Joseph L. Schwartz was an edi-tor of the Harvard Law Review.

Prominent Family Law Practice, continued from page 10

New Hampshire Federal Judge, continued from page 9

2008 Summer Associates Listed By Office

BS&F Welcomes 42 Summer Associates

thinking necessary to succeed at a top law school with a passion for excellence that is essential to success in the most competitive areas of pri-vate practice. The firm recruits on campus at the leading law schools, including Yale, Stanford, Harvard, Columbia, New York University, Chicago, University of Virginia, Berkley, University of Pennsylvania, Georgetown and other top-tier schools, which are well represented among our partners and associ-ates. Many of our associates and younger partners participated in the Firm’s summer program and re-turned as full-time associates follow-

BS&F recruits the most talented law school students in the country by providing them with professional opportunities they will not find else-where, including hands-on experi-ence in some of the most high-profile cases in the country. The Firm’s summer associate program is designed to provide realistic expo-sure to the firm’s practice and law-yers, while the relatively small num-ber of summer associates in each of the firm’s offices allows for close mentoring and training in an infor-mal and collegial environment. The best candidates combine the intel-lectual curiosity and disciplined

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2008 SUMMER ASSOCIATES

JULY 2008

Armonk Amy Adams Daniel Bryan Stan Barrett Andrew Carnabuci Christopher Fenlon Alexander Ibrahim Michael McDuffie Marshall Shaffer Benjamin Simler Warren Tusk Chad Albert Kami Lizarraga

New York City Isaac Beerman Brad Brodie Paul Chan James Jimmerson Joshua Kass Joshua Libling Jeremy Licht Jeffrey Major Gabriel Mendlow Elan Nehleber Marc Rotter Andrew Saal Joshua Stillman

Oakland Meredith Dearborn Matthew Dickman Tai Milder Brent Nakamura Matthew Pincus Will Riffelmacher Josh Sheptow

Washington, DC Wyatt Lipman Ed Takashima Barbara Thomas

ing graduation from law school or appellate and district court clerk-ships.

Alan Vickery, co-chair of the Firm’s Recruiting Committee said, “The Firm’s summer associate program is the foundation of our recruiting program, and is of central impor-tance to the future of our firm. The very high quality of our 2008 sum-mer associates reflects our contin-ued success at recruiting the best law students in the country.”

Ft. Lauderdale Anthony Arsali Beth Griffin Katz Jonathan Pollard

New Hampshire Ethan Frechettemas

Luke Thara Christopher Terranova

In this year’s edition of Legal 500, a well-respected directory of the country’s pre-eminent law firms and whose selection is based solely on merit, BS&F was featured in a laudatory article, which cited Jonathan Schiller as “one of the premier international arbitration lawyers in the world,” and praised Bill Isaacson as “incredibly well pre-pared and exceedingly talented.”

ARMONK OFFICE: Who's Who Legal honored David Boies by giving him its 2008 Lawyer of the Year award in the area of Commercial Litigation. David along with Robin Henry were recognized in the 2008 edition of "The Best Lawyers in America;" David was recognized for his work in the areas of Antitrust, Commercial Litigation, and Bet-the-Company Litigation, and Robin in the area of Securities Law. Olav A. Haazen was recently interviewed by Dutch Radio and television for programs concerning whistleblower protection statutes and proposed U.S.-style litigation. The television program aired on April 20 and is available at www.zembla.tv.” Betsy Turner was one of five alumni honored in 2008 by The Purdue University College of Liberal Arts. On July 14, Chris Green received a Thurgood Marshall Award for Capital Representation from the Committee on Capital Punishment of the Asso-ciation of the Bar of the City of New York. This award recognizes New York area attorneys and law firms who have contributed their legal expertise to represent death row inmates across the nation.

FT. LAUDERDALE OFFICE: Stuart H. Singer was recognized in the 2008 edition of The Best Lawyers in America for his work in the area of Antitrust and Commercial Litigation. In April, Damien Marshall was elected as a Member of the National Law Alumni Board at Georgetown University. His term starts in October.

HOLLYWOOD OFFICE: James Fox Miller, Charles Fox Miller and A Matthew Miller were all recognized in the 2008 edition of The Best Lawyers in America for their work in the area of Family Law.

MIAMI OFFICE: Stephen N. Zack was awarded the President’s Award of Merit at this year’s Florida Bar Conven-tion. In 2010, Steve is slated to become the first Cuban-American president of the American Bar Association.

NEW YORK CITY OFFICE: As reported in the Miami Herald, The University of Miami has named Paul Verkuil new interim dean of its law school on July 22, 2008. The recently released practice guide “Corporate Governance and Compliance Client Strategies,” (2007; Aspatore Books), includes a chapter entitled “Corporate Governance: A Balanced Approach to Best Practices” written by Christopher Boies. On April 11, Nick Gravante spoke at a forum hosted by the New York State Senate Democratic Task Force on Criminal Justice Reform. Nick’s commen-tary at the forum, which included his work in overturning the wrongful conviction of Frank Esposito, was cited in a New York Times blog http://cityroom.blogs.nytimes.com/2008/07/03/changes-encouraged-to-prevent-false-confessions/. In May, Harlan Levy was named Vice Chair of the White Collar Committee of the National Asso-ciation of Criminal Defense Lawyers.

WASHINGTON OFFICE: Tanya Chutkan appeared in the January edition of the National Association of Women Lawyers newsletter. The article examines the balance between family and work and is available In The News section at www.bsfllp.com. In April, Scott Gant a guest lectured at Columbia Law School and Princeton University about his book entitled “We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age.” Donald L. Flexner and Jonathan Schiller were recognized in the 2008 edition of The Best Law-yers in America for their work in the area of Antitrust Litigation and International Trade and Finance Law respec-tively. William C. Jackson was appointed to the Board of Directors of the Columbia Law School Alumni Asso-ciation of Washington, D.C.. Bill Isaacson was awarded the “Rock of the Law Award” on June 17 by the Jewish Foundation for Group Homes for his commitment to pro bono work.

TO KEEP CURRENT ON ALL FIRM DEVELOPMENTS, PLEASE VISIT OUR WEBSITE AT www.bsfllp.com.

LEGAL TALK

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