Client Alert - Gibson Dunn

Client Alert

The Ninth Circuit Holds That Potentially Responsible Parties May Seek Cost Recovery Under Section 107(a) of CERCLA (Kotrous v. Bayer CropScience, Inc., et al.)

On April 17, 2008, the United States Court of Appeals for the Ninth Circuit issued its opinion in Kotrous v. Bayer CropScience, Inc., et al., No. 06-15162, holding that a potentially responsible party (“PRP”) may bring an action for cost recovery under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.

April 21, 2008

The European Commission Goes 2 for 2 in the Telecoms Abusive Pricing Cases

The 10 April 2008 Court of First Instance (“CFI”) judgment in Deutsche Telekom AG v Commission of the European Communities upheld the Commission’s 2003 decision finding that Deutsche Telekom (“DT”) had been abusing its dominant position on the markets for access to its fixed network by creating a margin squeeze between the prices charged to its competitors for wholesale access and its own retail access charges.  DT argued that the Commission erred in finding that it had infringed Article 82 EC because: (i) DT’s conduct was not abusive, since it did not have sufficient scope of action to avoid the margin squeeze; (ii) the methodology adopted by the Commission to establish margin squeeze was unlawful; (iii) the Commission’s margin squeez

April 15, 2008

Recent Ninth Circuit Court Decision Reiterates DOJ and SEC Broad Freedom to Conduct Parallel Criminal and Civil Investigations

On April 4, 2008, the United States Court of Appeals for the Ninth Circuit reversed the much-discussed Oregon federal court decision, United States v. Stringer, which had dismissed a criminal indictment due to the government's violation of the defendant's due process rights resulting from "egregious" behavior in conducting a parallel civil-criminal investigation.

April 14, 2008

Subprime-Related Securities Litigation: Where Do We Go From Here?

A WHITE PAPER FROM THE SUBPRIME WORKING GROUP OF GIBSON, DUNN & CRUTCHER LLPNOTE:  This also appeared in the April 2008 issue [PDF] of Insights.I.          INTRODUCTIONIn the last six months, numerous originators, syndicators, insurers and rating agencies involved in the purchase and sale of subprime mortage-backed securities, collateralized mortgage obligations (“CMOs”) and collateralized debt obligations (“CDOs”) have announced significant write-downs or other adverse financial impacts stemming from the ever-widening “credit crunch.”  One published report states that as of early January 2008, over a hundred companies had announced writedowns totaling more than $150 billion, and eventually could approach $300 billion.[

April 1, 2008

Legal Privilege in the EU: Is the Balance Right? Akzo Nobel v Commission

Brussels Partner David Wood is the author of "Legal Privilege in the EU: Is the Balance Right? Akzo Nobel v Commission" [PDF] which appeared in the Utilities Law Review, published by Lawtext Publishing Limited

March 31, 2008

Developments in the online advertising world: Merger approval of the Google/DoubleClick transaction

by David Wood*Technology sectors have been remarkable not only in terms of their growth and the value they have contributed to the global economy but by the appearance of perpetual motion they bring to the markets they touch.  Change is ever present in the online world.  Acquisitions and consolidation have meant there has been a constant spur to product development and innovation arising from the integration of previously separate companies, and start-ups and new entry have provided a seemingly endless source of new ideas and talent.It is fair to say that, overall, this activity has raised regulators' eyebrows but has generated relatively few concrete antitrust concerns.  In particular, the markets have seemed to be too fragmented and dynamic to raise concerns about excessiv

March 25, 2008

Learning from High-Profile Perjury Cases

New York Partner Lee Dunst is the author of "Learning from High-Profile Perjury Cases" [PDF] published in the March 24, 2008 issue of The National Law Journal.

March 24, 2008

So You Want To Sue For Trade Secret

Denver Of Counsel Gregory Whitehair is the author of "So You Want To Sue For Trade Secret" [PDF] published in the March 24, 2008 issue of Law Week Colorado. 

March 24, 2008

Proving it – The standard and burden of proof in article 82 cases

Brussels Partner David Wood is the author of "Proving  it - The standard and burden of proof in article 82 cases" [PDF] published in the 11 March 2008 issue of Competition Law Insight.

March 11, 2008

An Injunction too Far: C v D

Gibson Dunn partner Cy Benson is the author of author of "An InjunctIon too Far: C v D" [PDF] published in Vol 3, Issue 1, of the Global Arbitration Review, page 38,

March 7, 2008

White Collar Defense Roundtable 2008

Los Angeles partners Michael Farhang and Debra Wong Yang were panelists in the "White Collar Roundtable 2008" [PDF] published in the March 2008 issue of California Lawyer.

March 3, 2008

German Federal Cartel Office Imposes Fine for Sharing of Sensitive Information Among Cartelists

At the end of last week, the German Federal Cartel Office (FCO), Germany’s competition authority, fined several manufacturers of personal care products for price-fixing.

February 28, 2008

U.S. Supreme Court Holds That the Federal Arbitration Act Supersedes State Laws Lodging Primary Jurisdiction in Another Forum

On February 20, the Supreme Court of the United States issued an 8-1 decision in Preston v. Ferrer, which held that when parties agree to arbitrate all questions arising under a contract, the Federal Arbitration Act (FAA) supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative.

February 27, 2008

Supreme Court Addresses First of Numerous Issues Arising in ERISA “Stock Drop” Litigation

The Supreme Court's decision last week in LaRue v. DeWolff, Boberg & Associates, No. 06-856, slip op. (U.S. 2008), addressed the first of several issues that have divided the courts in ERISA "stock drop" cases, which concern losses to company 401(k) plans resulting from downturns in the company's stock.The defendant employer in the case, DeWolff, maintained a 401(k) plan in which plaintiff LaRue had been a participant.

February 25, 2008

IRS Provides Transition Relief on Controversial Section 162(m) Issue

In reliance on the IRS's view as expressed in private letter rulings in 1999 and 2006, many public companies have taken the position that amounts can qualify as “performance-based compensation” under section 162(m) of the Internal Revenue Code if the amounts are payable in connection with an executive’s termination of employment without “cause” or for “good reason” regardless of whether the performance goals have been satisfied.  However, in a controversial private letter ruling issued in late January, the IRS reversed its longstanding position that such provisions are permissible in performance-based arrangements, thereby calling into question deductions that many companies have taken in prior years and the attendant financial reporting, as well as the deductibility of

February 22, 2008

U.S. Supreme Court Holds That Federal Law Preempts State-Law Claims Challenging the Design and Labeling of FDA-Approved Medical Devices

On February 20, the Supreme Court of the United States issued an 8-1 decision in Riegel v. Medtronic, Inc., which held that federal law preempts state-law products liability claims challenging the design and labeling of medical devices that the federal Food and Drug Administration ("FDA") has found to be safe and effective.

February 22, 2008

SEC Proposes Numerous Changes to Foreign Issuer Disclosure and Reporting Requirements

At its open meeting on February 13, 2007, the SEC voted to propose several amendments to its disclosure and reporting requirements for foreign private issuers.

February 20, 2008

English Court of Appeal Clarifies Economic Tort of Conspiracy

In a previous client update ("UK House of Lords confirms the limitations of the economic torts of intentionally causing economic loss"), we discussed the landmark judgment handed down on 2 May 2007 by the UK Judicial Committee of the House of Lords in three separate appeals involving claims for economic torts (OBG v Allan)1 "Economic torts" or "intentional torts" are perpetrated by a party (D) if D causes economic loss to another (P) in situations where D is in neither a contractual nor other legal relationship with P.  In their May 2007 judgment, whilst their Lordships specifically considered, and clarified, the economic torts of (i) procuring or inducing a breach of contract between P and a third party (T); and (ii) unlawful interference with P's trade

February 19, 2008

2008 Securities Litigation Reform Forecast: Cloudy, Chance of Rain

New York partners Jonathan C. Dickey and Aric Wu and associate Ross Wallin are authors of "2008 Securities Litigation Reform Forecast: Cloudy, Chance of Rain" [PDF] published in the February 2008 issues of Securities Litigation Report.

February 15, 2008

Supreme Court Reaffirms Narrow Scope of Primary Liability Under Section 10(b): Stoneridge Investment Partners v. Scientific Atlanta, Inc.: The Supreme Court Rejects “Scheme” Liability, Insights, Vol. 22, No. 1

New York partner Jonathan C. Dickey, Washington, D.C. partner Mark A. Perry, and Los Angeles partner Julian W. Poon are authors of "Stoneridge Investment Partners v. Scientific-Atlanta, Inc.: The Supreme Court Rejects 'Scheme' Liability" [PDF] published in the January 2008 issue of Insights.

February 10, 2008