Practice Areas & Industries: Sutherland Asbill & Brennan LLP

Practice/Industry Group Overview

Litigation is a major part of Sutherland Asbill & Brennan's practice. With offices in Atlanta, Austin, Houston, New York, Tallahassee and Washington, approximately one third of our more than 400 lawyers practice in this area and have tried and/or argued cases in the United States Supreme Court, all thirteen circuits of the United States Court of Appeals, the Court of Federal Claims, the Tax Court and many other federal district and state trial and appellate courts. We also have extensive experience in administrative proceedings and hearings before various federal and state agencies. We represent national, international and regional clients from a broad range of industries -- including securities, insurance, energy, construction, manufacturing, banking, pharmaceuticals, computer, and defense.

Services Available

Accountants' and Professional Liability

Our Practice
Sutherland Asbill & Brennan LLP has more than 425 lawyers, with business litigation comprising approximately one-third of its practice. One of the firm's most important areas of litigation is its representation of accounting and law firms.

We have represented accountants and accounting firms in more than 40 major cases in the last 25 years, in state and federal courts throughout the United States. Our clients have included all of the Big Four accounting firms, as well as other national, regional and local accounting firms, international affiliates of U.S. accounting firms, and local and regional law firms.

We have successfully represented accounting firms with respect to virtually every category of engagement, including audit and assurance services, tax services, and consulting services, in cases involving banking, sub-prime lending, health care, insurance, manufacturing, distribution, retail, internet, real estate limited partnerships, REITs, computer software, leasing, and other industries. These matters have ranged from small malpractice cases to multi-billion dollar class action controversies. We also assist our professional clients in actions and investigations by federal and state agencies, including the Securities Exchange Commission, the Department of Justice and state licensing boards. One of our particular strengths is our ability to coordinate the handling of private litigation and regulatory actions.

Drawing upon the diverse experience and resources of our firm, we have also successfully represented law firms in a variety of disputes ranging from legal malpractice and fraud actions, to securities arbitrations, to claims under workers' compensation statutes.

We have a broad range of experience in representing and counseling clients in securities fraud actions, federal and state RICO actions, SEC and Department of Justice investigations and other regulatory proceedings, professional liability claims, and other complex business litigation. We also assist our clients in responding to third party discovery requests in matters involving their clients.

Our Resources
Our representation of accountants and lawyers is handled by a core group of litigators, including some of our firm's most experienced trial lawyers. Because of our familiarity with the accounting profession, accounting literature and the substantive law applicable to accountants, our "learning curve" on new accountants' liability matters is kept to a minimum, allowing us to assess and defend cases efficiently.

As with all practice areas of Sutherland, the partners in our professional liability group are complemented by outstanding lawyers at all levels of seniority, who have been recruited from the upper ranks of the best law schools in the country and who are trained to be effective and efficient litigators. Our lawyers are supported by a highly skilled staff of paralegals, who are experienced in working with complex, document-intensive cases and accountants' workpapers. We also take full advantage of technological developments that enable us to manage complex litigation and to develop and present our clients' cases more efficiently.

We are acutely aware of the high cost of litigation and the absolute necessity for efficient delivery of legal services. We recognize that litigation and regulatory matters are not profit centers for our clients. As a result, our philosophy is to staff cases leanly. When necessary, however, we can and do call upon the full resources of our firm-wide litigation group of more than 120 lawyers and, indeed, the entire firm.

Our securities enforcement practice, for instance, concentrates on the representation of broker/dealers, securities professionals, public companies, accountants, lawyers, and others in all phases of inspections, examinations, investigations, and litigation initiated by the SEC, securities self-regulatory bodies such as the NASD and the New York Stock Exchange, and state securities regulators. This enables us to assist institutional and individual clients, not only with securities enforcement actions once they are brought, but in providing advice and counseling designed to prevent enforcement problems from arising.

Appellate

From securing basic constitutional rights to parsing arcane regulatory and tax issues, appellate work is one of the central components of Sutherland's litigation practice. Since one of our founding partners, Judge Elbert P. Tuttle, helped establish the right to counsel in criminal cases in Johnson v. Zerbst, 304 U.S. 458 (1938), our lawyers have been centrally involved in major appellate cases, mostly involving complex business issues.

Appellate cases we have handled span practically the entire spectrum of substantive law. During the last five years, for example, we have represented clients in appeals involving antitrust, telecommunications, land use, tax, energy, franchising and distribution, professional liability, securities law, insurance law, education, employment, class actions and many other areas. During that same period, we have represented clients in appeals before the Supreme Court of the United States, all 13 federal circuit courts of appeals and a number of state appellate courts.

An appellate practice demands a specific set of advocacy skills, including an ability to mold often complex substantive law into arguments accessible to generalist courts. The keys to virtually every appeal are to recognize outcome-determining issues and to present those issues in a manner that maximizes the chances of success. Our track record reflects that our lawyers have the talent and experience essential for successful appellate presentation. A high percentage of our appellate lawyers began their careers as law clerks for federal judges or for justices on the Supreme Court of the United States.

Role of Amicus Curiae

We often submit briefs to appellate courts as amicus curiae, usually on behalf of associations or others with interests in important cases. As the recent clamor from appellate courts reminds litigants, an appropriate amicus brief is not simply a ballot or another brief tendered on behalf of a party rehashing or emphasizing that party's arguments. The useful amicus brief - one likely to be considered by the court - brings to the court's attention the broader context and policy implications of the decision at hand where the parties have not done so for one reason or another. The most effective amicus brief often is the "Brandeis" brief presenting economic and other social science data bearing on the issue before the court.

Georgia Appellate Practice

In addition to our federal appellate practice, Sutherland lawyers appear regularly in Georgia appellate courts and have an intimate familiarity with the procedures in those courts and with the Georgia judiciary. We are often called upon to handle an appeal after judgment has been entered in a trial court for or against a client represented by other counsel. Our lawyers include two past presidents of the State Bar of Georgia.

Banking Litigation

The attorneys in the Litigation Group have extensive experience litigating issues growing out of the lender-borrower relationship. In recent years, we have handled on behalf of lenders a significant number of cases involving alleged breaches of loan commitments, asserted both as defenses to actions brought by the lender and as claims asserted against the lender. We have also litigated numerous cases involving other types of lender liability claims, including business torts, bad faith dealing, violations of the anti-tying amendments to the Bank Holding Company Act and assertions that the lender is a potentially responsible person under the Comprehensive Environmental Response Compensation and Liability Act. We represent lenders in various intercreditor disputes, including issues relating to the perfection and priority of security interests and the interpretation of lien or payment subordination agreements, and in disputes with the lead lender in major syndications, and have represented the lead lender in disputes with its participants.

We have represented lenders and insurers in the defense of consumer class actions filed in state and federal courts throughout the Southeast. These cases typically have been premised on fraud, fraudulent suppression, RICO, breach of contract and statutory violation theories. Challenged practices have included "force-placed" collateral insurance, credit life insurance coverage, non-filing insurance, insurance subrogation, consumer insurance commissions and usury.

Our attorneys handle all forms of bankruptcy litigation, from preference and fraudulent conveyance claims, and assertions that lenders should have their claims equitably subordinated to automatic stay litigation, including issues of adequate protection and the likelihood of successful reorganization. We also have substantial experience representing lenders in connection with attempts to confirm "cram down" plans in Chapter 11 cases.

Class Actions

One of the most striking developments in civil litigation during the last decade is the explosive growth in class action filings, especially -- but not exclusively -- in the state court systems. The growth has been fueled by settlements in mass tort and product liability litigation; by the Supreme Court's validation of multi-state class actions in state court, in some circumstances; by shifts in political control of some state judicial systems; and by a wave of unprecedented attorneys' fees awards in class actions. In securities cases, meanwhile, the Private Securities Litigation Reform Act of 1995 has changed the ground rules.

Battling against a putative class action requires, obviously, a thorough knowledge of class action procedures, but also requires a command of current issues in subjects such as removal, arbitration, and appealability, as well as practical experience with the mechanics of class actions. Pushing for an early disposition on the merits, before a class is certified, is often the best approach. Educating the court on just what a class trial would be like is often the key to defeating class certification.

Sutherland has a broad portfolio of experience in class actions of all types including the following areas:

• Securities - Peter Anderson, Larry Polk
• Accountants' & Professional Liability - John Chandler, Beth Tanis
• Consumer & Insurance - Tom Byrne, Steuart Thomsen, Nick Christakos
• Antitrust & Franchise - Carey DeDeyn, Jim McGibbon, John Fleming
• ERISA & Employee Benefits - Steuart Thomsen, Nick Christakos

Construction

Sutherland Asbill & Brennan has been extensively engaged in construction industry problem-solving and litigation for more than 40 years, representing contractors, owners, architects, engineers, material and equipment suppliers, bonding companies, lending institutions and real estate developers. Lawyers in the firm have successfully litigated and arbitrated hundreds of construction cases throughout the United States, Canada and overseas. In addition to successfully litigating many of the largest and most visible construction disputes, our practice encompasses all facets of construction law, including negotiating and preparing contracts, project financing, bid submissions, bonding issues and bid protests. Our approach emphasizes the anticipation, avoidance and early resolution of construction problems, and our attorneys have been among the industry leaders in developing and utilizing a wide array of Alternative Dispute Resolution ("ADR") procedures to accomplish this goal.

First and foremost, however, we are an experienced and aggressive group of trial lawyers who have focused their individual careers on the construction industry. Sutherland's construction attorneys not only understand the construction industry, they are committed to understanding the "business" of each and every one of our clients. We know that the process of planning, designing and building a construction project is unique in the business world. It requires the intermeshing of dozens of parties with different talents and often conflicting interests. These parties must combine forces and talents to deliver ¿ on time and within budget ¿ a completed project. We understand this process and are committed to finding the most productive and cost-effective solutions to your construction problems. The appropriate solution in each case must be tailored to meet the specific needs of a specific client within a particular set of facts and circumstances. Mass-produced "off-the-shelf" solutions are simply not acceptable.

If the appropriate solution in your case is litigation or arbitration, or if you find yourself a defendant in litigation or a respondent in arbitration, our construction attorneys are remarkably qualified to achieve your goals in any forum. We also fully understand and appreciate that pursuing or defending claims is costly, and that controlling those costs requires keen litigation management. At the outset, we will provide you with a candid appraisal of your case and will work with you to formulate a budget consistent with your goals and with economic realities. Because of our knowledge of construction, we are able to manage outside consultants efficiently and will make use of your internal resources whenever possible.

We have had personal experience with literally hundreds of construction consultants and expert witnesses over the years, and are thus able to offer personal opinions and valuable insights in the process of selecting outside assistance. The result for our clients has been highly successful and cost-effective litigation before federal and state courts, government boards of contract appeals, government agencies, and industry arbitration panels, both in the U.S. and abroad.

In addition to our capabilities in the litigation/arbitration arena, we have developed important insights and skills designed to help our clients avoid or minimize disputes and problems. Our attorneys seek to be advisors and counselors, helping clients to structure their contracts and project relationships in ways that will prevent problems, and helping them to anticipate and solve potential problems before they become adversarial. Sutherland has the experience to provide on-site assistance to safeguard the client's interests by establishing proper contracts and procedures for scheduling, record keeping and claim notification. Our practice also focuses on the latest developments in preventing disputes, and in resolving disputes at the earliest possible moment. We sometimes recommend partnering and project team building at the initial stage of a project to foster cooperation among the project members, which can help to eliminate or drastically reduce disputes over the course of completing the project.

We are pleased to provide details on our experience and abilities throughout the United States and abroad. For more information, please contact Bill Wildman at 404.853.8406 or Lew Wiener at 202.383.0140.

Consumer Financial Services

Sutherland has a wide-ranging consumer financial services litigation practice, with special emphasis on the defense of consumer class actions in state and federal courts. In the past five-year period, our lawyers have defended such cases in Illinois, Georgia, Florida, North Carolina, West Virginia, Alabama, Mississippi, New York, Tennessee, Arkansas, Louisiana, Pennsylvania, Kentucky and Texas.

The defense of consumer financial services litigation requires not only mastery of the substantive law, with its interrelated, overlapping statutes and regulatory regimes, but also a command of current issues in subjects such as class certification, removal, arbitration, and appealability. In addition, we bring to the defense a familiarity with the business context, which is often vital to identifying and minimizing vulnerabilities.

Our areas of substantive concentration include:

• Automobile lending and leasing
• Enforcement of consumer arbitration provisions
• Insurance and ancillary products sold in connection with consumer loans
• Fair lending, including ECOA
• Truth-in-Lending compliance
• State UDAP laws
• Fair Debt Collection Practices Act
• So-called "predatory" or subprime lending
• Bankruptcy discharge and other class actions
• State attorney general enforcement actions
• Remedies under the UCC and state retail finance statutes

For more information, please contact Tom Byrne at 404.853.8026 or tom.byrne@sablaw.com.

Dealer and Franchise

Sutherland has one of the nation's premier practices in dealer, distributor and franchise litigation, with a special focus on the automotive industry, but also including many other industries.

The relationships between automobile, truck and motorcycle manufacturers and importers and their dealers are regulated by federal statute and by the laws of virtually every state. Typically, the state agency with responsibility for licensing dealers also hears disputes between manufacturers and their dealers concerning the appointment of additional dealers and the relocation of existing dealers, the termination of dealers by manufacturers, and the transfer of ownership in dealerships. These disputes are litigated before administrative law judges, whose decisions are subject to review by the state agency, and ultimately by the courts of the state. In disputes involving the addition and relocation of dealerships, existing dealers of the same line may file a protest which requires the manufacturer to prove the need for the additional or relocated dealer. In termination cases, a dealer receives a notice of intent by the manufacturer or importer indicating its intent to terminate the dealer, together with the grounds for that termination. The dealer may contest the proposed termination. Ownership transfers are also litigated, with the manufacturer being required to prove appropriate grounds for the rejection of a proposed new owner or manager. Civil litigation, in state and federal courts, involving damages and injunctive relief, often arises as a result of or an adjunct to the disputes.

For additional information, please contact Dean Bunch at 850.894.0015, Nick Christakos at 202.383.0184 or John Fleming at 404.853.8065.

Education, Government and Civil Rights Litigation

Sutherland lawyers have successfully represented state and local governments and executive officials in a variety of complex matters ranging from school funding and adequacy litigation to voting rights and desegregation cases.

Among the major cases in which we have played a leading role are:

• New York "adequacy" case, CFE v. State of New York. Along with the New York attorney general's office, we represented the State and Governor of New York in a seven-month trial in a case challenging the constitutionality of the State's education financing system and the adequacy of the New York City Public Schools.
  
• St. Louis and Kansas City, Missouri school desegregation cases, Jenkins v. State of Missouri, et al. and Liddell v. The Board of Education of the City of St. Louis, Mo., et al. We served as co-counsel with the state attorney general's office in representing the State of Missouri in its successful efforts to be released from federal court supervision. Prior to our involvement, the State had paid over $2.6 billion in extraordinary desegregation funding to those two school districts. One of our lawyers successfully argued the Jenkins case before the United States Supreme Court, achieving a result that saved the State of Missouri hundreds of millions of dollars. Missouri v. Jenkins, 515 U.S. 70 (1995).
  
• Florida adequacy case, Honore v. Bush, et al. We represented the Florida legislature in a statewide lawsuit alleging that the state's system of K-12 education did not meet state constitutional standards.
  
• Michigan school desegregation case, Berry v. Benton Harbor. Along with the state attorney general's office, we represented the State and Governor of Michigan in a long-running school desegregation case involving the Benton Harbor School District. After a four-week trial, the court granted the State's motion for unitary status, resulting in a phase-out of extraordinary state funding for the districts and an end to the 35-year-old case.
  
• Minnesota adequacy cases, St. Paul School District v. State of Minnesota, et al. and Minneapolis Branch of the NAACP v. State of Minnesota, et al. We represented, along with the state attorney general's office, the State and Governor of Minnesota in a lawsuit challenging the constitutionality of the state's funding system as it related to the St. Paul and Minneapolis School districts. Both cases were settled on a basis very favorable to the State.
  
• Connecticut adequacy case, Sheff v. O'Neill. This was the first of the major cases challenging the adequacy of educational programs under state constitutional law. We and the state attorney general's office represented the State at trial and were able to obtain a judgment of dismissal from the trial court based on factual determinations in the State's favor, although the case was later reversed by the Supreme Court on a 4-3 vote as a result of its interpretation of the Connecticut constitution.
  
• Los Angeles school desegregation case, Los Angeles NAACP, et al. v. Los Angeles Unified School District, et al. We represented the State of California, along with the state attorney general's office, in successfully getting all claims against the State dismissed.
  
• Other major school adequacy, funding and/or desegregation matters that we have tried, appeared or consulted in for either states, local governments or school districts include: Prince George's County, Maryland; Savannah-Chatham County, Georgia; Charleston County, South Carolina; Fulton County, Georgia; Knox County, Tennessee; DeKalb County, Georgia; Cincinnati, Dayton and Cleveland, Ohio; Madison, Wisconsin; Dallas, Texas; Wayne County, North Carolina; Darlington, South Carolina; Yonkers, New York; Palm Beach County, Florida; Milwaukee, Wisconsin; and the States of Arizona, South Carolina, Texas and Ohio.
  
• Missouri Non-Partisan Court Plan Voting Rights Act case, African American Voting Rights Legal Defense Fund, Inc. v. State of Missouri et al. One of our lawyers successfully represented the State of Missouri in the three-week long trial and appeal of this case in which plaintiffs challenged the Missouri Non-Partisan Court Plan on Voting Rights Act and constitutional grounds. (Several states use the so-called "Missouri Plan" as their system for selecting judges.) The State of Missouri prevailed at trial and on appeal in this case.
  
• Sutherland attorneys have also represented governmental bodies in a variety of other constitutional and statutory cases involving prison conditions, the operation of various government programs such as state foster care and mental health services and in employment matters, including large class-action cases.

For more information about our Education, Government and Civil Rights Litigation practice, please contact Al Lindseth, John Munich or Rocco Testani.

Employment Litigation

Employee issues threaten to reduce employee productivity and increase employer litigation costs. At Sutherland Asbill & Brennan LLP, we work with a broad range of clients to manage labor and employment issues with a practical, results-oriented approach tailored to our clients' objectives. Our clients include Fortune 100 companies from California to New York. Our employment practice ranges from major litigation to day-to-day problem solving for our clients in industries from automotive to telecommunications to retail, high-tech, and banking.

Lawyers in our Employment Group include members of the American Law Institute, two former Emory Law School professors, the authors of "Model Employee Policies for Georgia Employers, With Legal Commentary," Georgia Chamber of Commerce (1997), and the authors of "Covenants Not to Compete, Non-Disclosure Covenants, and Other Restrictive Covenants Under Georgia Law" (to be published Fall 2006). Many of our attorneys have been law clerks to federal judges, including a United States Supreme Court Justice.

We address the full range of employment-related issues encountered by our clients. We are skilled advocates who have successfully tried cases across the country, but we also realize that full-blown litigation may not always be in our clients' best interests. With our problem-solving approach and results-oriented practice, we can help your company manage its employment issues effectively and in a cost-efficient manner.

Litigation: The Benefit of Experience

Our employment litigation practice is nationwide and includes representation of employers in virtually every industry. In hundreds of cases nationally over the past 25 years, including class action litigation, the firm has experiece in virtually every type of case faced by employers. Our experience covers a broad spectrum of issues including:

• Hiring, promotion, testing, termination, and discipline
• Discrimination based on race, sex, religion, national origin, age, and disability
• Reasonable accommodations
• Harassment
• Retaliation
• Family and medical leave
• Seniority systems
• Reductions in force

Our lawyers also have handled a wide variety of cases nationally involving:

• Post-employment covenants, breach of contract, and breach of fiduciary duty
• Intentional infliction of emotional distress, invasion of privacy, and defamation
• Misappropriation of trade secrets or confidential business information
• Tortious interference with contractual or business relationships
• Employee raiding
• Various other employment-related claims in executive, industrial, and commercial setting

Representative Cases

The firm has extensive experience with alternative methods of dispute resolution, such as arbitration and mediation, and has an impressive track record of obtaining summary disposition of cases prior to trial. Inevitably, however, some cases cannot be resolved short of trial. The following provides a sampling of cases we have tried:

• We recently successfully defended a major automotive manufacturer in a trial in New Jersey federal court against claims of race discrimination and retaliation.
• The firm obtained a jury verdict in favor of a Fortune 50 company in a case in Nashville, Tennessee involving allegations of physical sexual harassment allegedly occurring over an eight-year period.
• We tried a sexual harassment case in Rome, Georgia on behalf of a major railroad involving an alleged sexual battery by a high level executive. The plaintiff offered to settle the case midway through what was expected to be a two-week jury trial for less than what her lawyer had billed in legal fees.
• We tried a race discrimination and harassment case for a large manufacturer before a jury in Norfolk, Virginia, resulting in a complete dismissal of the former employee's $7M claim.
• In two recent cases, we successfully defended one of the largest school systems in Georgia in trials involving claims of reverse race discrimination and age discrimination.

In addition, the firm has experience successfully defending against class certification in employment discrimination actions throughout the country. Our lawyers also are recognized for their work regarding trade secrets, non-competition and related matters, and we have handled numerous injunction and TRO hearings in trade secrets, non-competition, and employment agreement cases nationally.

Employee Benefits Litigation

We have long had an active practice in the area of employee benefits and executive compensation, which began as a natural outgrowth of the firm's tax practice. As the regulation of employee benefits expanded beyond tax issues, our benefits experience likewise expanded to include the entire regulatory scheme administered by federal and state agencies.

The firm has developed particular knowledge in the litigation of employment and benefit issues arising under ERISA, COBRA and other benefits-related litigation, including significant "cutting edge" cases centering upon the emotional and sensitive issue of health insurance coverage for AIDS and related illnesses. Our firm has litigated a wide variety of other employee benefits issues, including benefits eligibility, fiduciary and non-fiduciary liability, health insurance continuation coverage under COBRA, valuation, preemption, and available remedies. We have litigated ERISA cases - including several nationally prominent cases - in Arkansas, Georgia, New Jersey, and New York, among other states.

Litigation Avoidance: Partnering to Prevent Employment Disputes

An employment case is often the product of a poor employment decision or an employee relations failure. Many labor and employment problems arise without prior warning and require immediate legal advice. Accordingly, we place special emphasis on being readily available and always responsive when our clients call for advice that may help prevent a lawsuit. We partner with our clients to identify the client's primary objective and regularly provide assistance on the following matters:

• Personnel policies and employee handbooks
• Dispute resolution systems
• Drug testing programs
• Family and Medical Leave Act policies
• Employee misconduct investigations
• Workforce reductions and plant closings
• Wage and hour issues
• COBRA and state continuation-of-coverage laws
• Employment, non-compete, and separation agreements
• Employment issues arising from mergers, acquisitions, and joint ventures

Because we believe that personnel problems often can be avoided or reduced when managers and supervisors are properly trained in the legal aspects of employment, we frequently conduct training programs for our clients at their facilities. The firm also conducts group seminars and provides employment law "alerts" for our clients on new developments in employment law.

Energy

Attorneys in Sutherland's Energy Practice represent every major sector of energy industry in sophisticated transactional, regulatory, finance, tax and litigation matters. Our clients are industrial end-users and end-user groups; independent power producers and electric cooperatives; petroleum, power and natural gas marketers; domestic and multinational traders; hedge funds and financial institutions; refiners and crude oil producers; leading companies in the nuclear energy business and energy lenders. More than fifty of our attorneys regularly serve the legal needs of Sutherland's energy industry clients in domestic and international business transactions and litigation. Teaming with our energy clients and their other business advisors for over thirty years, we have made our clients' success our own.

Energy Litigation/Dispute Resolution

The firm's energy litigation and dispute resolution practice draws on the experience of the firm's energy and litigation groups in representing energy companies in litigating and resolving complex commercial and regulatory disputes. We have litigated on behalf of energy clients -- including energy trading and marketing companies, electric utilities, cooperatives and oil companies -- and industry trade groups and their members before numerous state and federal courts. We also have significant experience in resolving such disputes in alternative manners -- through mediation, arbitration, and negotiated settlements. In addition, we regularly represent clients in administrative litigation before state and federal agencies, such as the Federal Energy Regulatory Commission. Our attorneys have been working with participants in the energy markets for many years, and we understand the business environment and market in which they operate. This marriage between the business of energy and litigation results in a dynamic and effective team of lawyers to help resolve difficult energy commercial disputes. We have advised, and litigated on behalf of, clients involving complicated commodities, commercial and regulatory issues, including:

• Procedures for terminating, liquidating and valuing forward physical and financial positions with insolvent counterparties;
• The evaluation of long-dated tolling agreements;
• The enforceability of one-way termination provisions in physical and financial master agreements;
• The enforceability of book-outs, absent consent of all the parties;
• The connection, if any, between price curves of physical spot and forward markets;
• Whether certain contracts and transactions qualify as forward commodity contracts;
• The pre-emptive effect of federal jurisdiction over regulated energy companies versus state courts and agencies; and
• Direct connections and bypasses by industrial and generating end-users to interstate natural gas pipelines.

We have represented energy and related clients in numerous disputes, including:

• Five energy trading companies and utilities in litigation with the Power Company of America, LP in the PCA bankruptcy;
• More than ten counterparties in disputes with Enron Corporation, Enron North America, and Enron Power Marketing, Inc. and related entities in the Enron bankruptcy;
• A group of energy trading companies in their bankruptcy;
• A large energy trading company in arbitration regarding the termination and liquidation of all transactions between company and counterparty;
• An oil company in antitrust litigation against other oil companies;
• Individuals and companies in investigations by various federal agencies;
• Amicus curiae briefs before U.S. Courts of Appeals and the Supreme Court of the United States; and
• Sophisticated commercial disputes between energy companies.

In short, our energy litigation and dispute resolution practice involves the full range of litigation, arbitration, mediation and negotiation activities on behalf of energy companies, with the experience of lawyers that have been working with participants in the energy markets for many years.

ERISA Litigation

The explosion in litigation by employees against employers, insurance companies, and other defendants under ERISA has created difficult problems for many companies, plan sponsors, plan administrators and individual fiduciaries. Sutherland has extensive experience in handling the full range of ERISA litigation matters, including several nationally prominent cases.

Diverse Issues

The cases that we handle typically involve diverse issues, including:

• The applicability of ERISA to various compensatory arrangements
• Benefit eligibility
• COBRA rights and duties
• Fiduciary status
• Allegations of ERISA fiduciary or non-fiduciary liability
• Available remedies against fiduciaries and non-fiduciaries
• Valuation of employer stock
• Preemption
• Tax issues
• Fiduciary liability insurance coverage

Our work has generally been on behalf of the employer or other type of plan sponsor, insurer or an alleged fiduciary involved in the transaction in question.

Financial Services Litigation

For financial services companies, the legal, regulatory and business landscapes have dramatically changed over the last few years. In the wake of recent financial accounting scandals and attempted reforms, regulators and prosecutors at the state and federal level are conducting investigations and bringing enforcement actions at an unprecedented rate. Close behind the government is a wave of private plaintiffs' attorneys, looking for any opportunity to capitalize on the regulatory scrutiny with class actions and other suits. As a result, government subpoenas, criminal investigations and class action complaints have become commonplace.

At Sutherland, we are uniquely positioned to assist our financial services clients in defending this new wave of litigation. Our multi-disciplinary financial services litigation team combines extensive experience in litigating complex financial services matters with our leading national practice in the sale and distribution of mutual funds and insurance and other investment products. In short, few firms can match our combined understanding of both the litigation process and the underlying products and distribution mechanisms that are at issue.

Our financial services litigation team is regularly involved in:

• Representation of insurers and other financial services clients in a wide range of significant litigation matters in federal and state courts;
• Class actions on a variety of issues for financial services clients;
• SEC, NASD and NY Attorney General investigations into alleged market timing and late trading activity;
• SEC, NASD and state securities and insurance department investigations of products and sales practices;
• NY Attorney General's insurance and similar industry investigations;
• Litigation and arbitration of reinsurance and insurer insolvency disputes; and
• Managing electronic data discovery in large complex cases.

We can develop litigation strategies to assist your company in reaching your business goals. After all, it's not about the litigation -- it's about getting you back to business.

Intellectual Property Litigation

Sutherland's Intellectual Property Group handles all areas of intellectual property litigation. We represent both plaintiffs and defendants in patent infringement, patent interference, and patent-related antitrust suits; trade secret, trademark and trade dress suits; copyright infringement suits; federal and state unfair competition controversies; and false advertising and other Lanham Act claims. More than 20 of the attorneys in the Intellectual Property Group are litigators who devote 100 percent of their time to Intellectual Property litigation. In addition, our Intellectual Property litigators can draw on the resources of the firm's other groups, including Tax, Corporate and Litigation, as needed. The Litigation Group in particular includes more than 120 attorneys, many of whom also have intellectual property litigation experience.

We have litigated intellectual property matters in federal, state and administrative trial and appellate courts throughout the U.S. We also have represented clients in Section 337 proceedings and other types of proceedings before the U.S. International Trade Commission and in numerous inter partes proceedings before the U.S. Trademark Trial and Appeal Board, and we have served as Special Master in patent infringement actions.

Internationally, we have represented clients in arbitration proceedings before the International Chamber of Commerce; the London College of International Arbitration; the Zürich, Stockholm, Paris and Finland Chambers; the World Intellectual Property Organization "WIPO"; and in mediation and/or arbitration proceedings in venues throughout Europe and the Americas. We also oversee trademark litigation matters handled by foreign counsel, engaged by us all over the world on behalf of our clients. These matters are handled in court proceedings in countries from China to Germany to Uruguay and in administrative proceedings in numerous foreign jurisdictions.

Representative matters handled by our IP litigators include:

Patent

• Representing a worldwide generic pharmaceutical company seeking to enter the U.S. market with new products. Under FDA procedures for filing abbreviated new drug applications (ANDAs), certification of non-infringement or invalidity must be made with respect to patents listed in the Orange Book. In those cases where our client is threatened by the patent holder, we defend it in vigorous litigation to demonstrate invalidity or non-infringement of the patents. We are currently handling several such cases.
  
• Representing a defendant in three jury trials involving allegations of patent infringement relating to wavelength division multiplexing telecommunication systems. The case settled favorably after favorable post-trial rulings were received from court.
  
• Representing a defendant in patent infringement action involving cross connect switches and add drop multiplexers used in telephone networks.
  
• Representing the plaintiff in multi-defendant patent infringement action alleging infringement of five patents relating to LCD technology.
  
• Representing plaintiff in patent case involving magnetic resonance imaging injector system and other types of imaging technology. We are currently handling several such cases.
  
• Representing a leading global media and technology company in a series of over 10 patent cases (including antitrust allegations) relating to interactive program guide technology.
  
• Representing a manufacturer of calcium carbonate products in cases involving patent, trade secret, unfair competition and antitrust claims.
  
• Representing a developer of innovative electronic coupon technology in a patent suit against two nationally known companies.
  
• Representing an inventor of manufacturing technology used in the assembly of smart cards.
  
• Representing a manufacturer of CNC devices and software.

Trade Secret

• Representing a cutting-edge furniture manufacturer in a case against a key competitor and former officer.
  
• Representing a computer healthcare system company in connection with a number of intellectual property matters, including the trial of a trade secret matter and an AAA arbitration with one of its hospital customers.
  
• Representing software manufacturer in trade secret suit involving allegations of theft of information by ex-employee who joined competing software manufacturer in Silicon Valley.
  
• Representing a specialty industrial chemicals manufacturer in a trade secret action in the field of emulsion polymerization.

Trademark

• Representing a party in a Section 337 trademark infringement action before the United States International Trade Commission. After a four-week trial and a remand for further fact finding, the ITC issued its determination finding no violation of Section 337 by our client and the other respondent importers. In the Matter of Certain Bearings and Packaging Thereof, No. 337-TA-469 (I.T.C. May 24, 2004) aff'd, skf USA, Inc. v. Int'l Trade Commission (Fed. Cir. Sept. 14, 2005). This was an extremely hard-fought case and is believed to be the first time that importers have ever prevailed in a Section 337 parallel import case at the ITC. The determination was recently affirmed by the United States Court of Appeals for the Federal Circuit.
  
• Representing a large financial services company and its subsidiaries in trademark, service mark and trade dress infringement suits throughout the United States involving company names, product names, service names, word marks, design marks, color marks and slogans and supervising litigation and enforcement activities for this client worldwide.
  
• Representing the owners of One and Two Times Square in a Lanham act unfair competition suit relating to the replacement of signs with other advertising in the movie Spiderman.
  
• Representing various franchisors in trademark infringement claims involving continued use of their marks by former franchisees.
  
• Representing both applicants and recipients in trademark opposition and cancellation proceedings before the U.S. Trademark Trial and Appeal Board.
  
• Representing trademark holders in Internet domain name dispute arbitration proceedings before the World Intellectual Property Organization.

Copyright

• Representing a large carpet manufacturer in various copyright infringement suits concerning carpet designs.
  
• Representing a large hunting apparel manufacturer in various copyright infringement actions related to the company's camouflage patterns. Numerous actions have been brought in the U.S. and throughout the world.
  
• Representing a distributor of computer chips and devices in litigation alleging copyright infringement and violation of the Digital Millennium Copyright Act.
  
• Handling copyright infringement suits involving works such as photographs, computer software, graphic designs, architectural designs, educational materials and Web pages.

Product Liability Litigation

Product liability and technical litigation is one of the areas in which the firm practices. We have defended corporations in a broad spectrum of cases involving significant questions of science and technology, including toxic tort, product liability, and design defect controversies. This work has included not only direct liability litigation and insurance defense, but also advice on insurance and reinsurance coverage issues, regulatory rulemaking and legislative programs.

The Firm's Approach to Litigation

Our goal in every case is to obtain the best possible outcome at the lowest reasonable cost. We are aware of the high cost of litigation and the necessity for efficient and effective delivery of legal services. We employ the leanest possible staffing of cases (usually with one partner and one associate); we make extensive use of technology for organizing, retrieving, communicating, and utilizing information in litigation; and we work closely with our client in planning and monitoring a cost-effective strategy. When the needs of the client call for a substantial commitment of legal resources, we have the depth and experience to handle the largest and most complex cases. With more than 90 litigators, we can assign as many lawyers to a case as a client requires.

While our compensation is often based on the time invested in the case, there are many situations in which an hourly fee arrangement may not be suitable. We have employed a variety of alternative fee arrangements and welcome the opportunity to discuss them in appropriate cases.

Case Management in Product Liability Lawsuits

For years, traditional product liability cases turned on expert testimony, usually resulting in a swearing contest between forensic consultants. More recently, however, this ritualistic approach has changed. The plaintiff's bar, at its most aggressive and sophisticated levels, now often seeks to prove liability focusing primarily on a defendant's own documents and witnesses. Cases are won or lost depending upon the outcome of discovery disputes, and efforts are often made to mischaracterize internal debate over product design or testing as suppressed dissent. Former agents or employees of defendants are converted into experts for the plaintiff's side. Aggressive case management and an ability to comprehend and maintain control over a document intense lawsuit are absolute prerequisites to effective product liability defense. Sutherland has that ability. For more information about Sutherland's product liability practice, please contact James A. Orr at 404.853.8578.

Real Estate Litigation

Sutherland Asbill & Brennan LLP has significant experience in real estate related litigation and an extensive construction litigation and alternative dispute resolution practice. We have represented owners and developers for many years in disputes and lawsuits between the various entities involved in the development process (i.e., developer-owners, contractors, management companies, brokers, lenders, sureties, architects and engineers, local and state governments and investors). These matters include:

• Rezoning and permitting appeals, both administratively and in state and federal courts
• Suits relating to long-term management agreements
• Joint-venture and partnership disputes
• Commercial, office and industrial leasing disputes
• Brokerage commission claims
• Complex guarantor litigation
• Restrictive covenant/boundary disputes
• Condemnation, including "business loss" cases
• Negotiating and preparing contracts
• Project financing
• Bid submissions and protests
• Bonding issues
• Anticipation, avoidance and early resolution of construction problems

A representative sampling of such cases includes the following:

• Suits on behalf of owners to terminate long-term management contracts and to recover damages for mismanagement. This has included, for example, the successful representation of the owner of a large luxury hotel which terminated its management company under a long-term management agreement and took back possession of the hotel through self-help. We planned and directed the successful takeover of the hotel, successfully defended resulting lawsuits for damages and the return of possession of the hotel, and recovered over $1 million in damages for mismanagement.
• Successful defense of a suit by an alleged owner of a part interest in a large real estate project, who was seeking to prevent the sale of the project to a third party. We have handled several suits involving similar claims, where one party claims a partial interest in a project by virtue of an alleged joint-venture agreement or some other arrangement.
• Defense of several suits by real estate brokers for commissions in connection with the sale of real estate. Although normally we have defended against such commission claims, we recently tried a case in which we recovered a substantial commission for a broker.
• Successful suits on behalf of owners to recover amounts due under complex management and guarantee agreements, where the managers/guarantors tried to avoid their obligations to make cash flow and other guaranteed payments to the owner once their management contracts were terminated.
• Suits on behalf of owners and developers to recover damages for defective work and construction delays. For example, on behalf of an owner we recently obtained an arbitration award for approximately $1 million against a management company/contractor for defective work in connection with a large apartment project.

Securities Enforcement and Litigation

Sutherland Asbill & Brennan securities lawyers defend broker/dealers, issuers, investment advisors, investment bankers, underwriters, accountants and other capital-markets professionals in all types of securities-related proceedings and disputes:

• in enforcement investigations and administrative proceedings brought by the SEC, NASD Regulation, Inc., the New York Stock Exchange and state securities regulators
• in arbitrations of investor complaints before the NASD, NYSE, National Futures Association and American Arbitration Association
• in litigation arising out of securities transactions.

In addition, we provide advice and strategy that enables broker/dealers, brokerage firms, investment advisors and other professional clients to operate efficiently within the complex rules and regulations of the more than 60 agencies and organizations that oversee the securities industry.

Enforcement: the benefit of experience

We represent clients confronted with examination and investigations, as well as disciplinary and administrative proceedings brought by the SEC, self-regulatory organizations such as the NASD, NYSE, Chicago Board Options Exchange, the NFA and the Municipal Securities Rulemaking Board, as well as state securities commissions.

Our enforcement experience includes:

Because we are involved in enforcement matters every day, we know the rules and "hot issues" on the minds of the regulators. Our securities group includes lawyers who have held prominent posts in government with both federal and state regulators.

Our experience includes investments such as:

• IPOs
• options
• commodities
• private placements
• variable insurance products
• mutual funds
• derivatives
• stocks
• bonds
• limited partnership interests.

In Atlanta, Washington and New York, our securities group includes lawyers who understand the dynamics within each regulatory agency and the strategies that lead to efficient resolution of the concerns of regulatory staff. In recent matters, we have:

• defended the chief legal and compliance officer of a major brokerage entity in an administrative proceeding brought by the SEC for failure to supervise the activities of a registered principal engaged in mutual fund switching
• represented a broker/dealer affiliated with a life insurance company in an SEC investigation involving an alleged failure to supervise the activities of a registered representative who defrauded dozens of clients of millions of dollars
• represented an investment advisor in an SEC investigation of alleged insider trading based on information the advisor learned from a relative who was the director of a public company
• represented a bank president in a SEC insider trading investigation where it was alleged the president traded in the bank's stock when he was in possession of material non-public information
• defended a municipal bond markup case brought against a broker/dealer by NASDR District 7
• represented auditors from Big 5 accounting firms in SEC and related investigations involving financial reporting, revenue recognition and internal controls
• appealed a NYSE disciplinary sanction to the SEC and obtained a dismissal based on the NYSE's delay in filing charges
• represented a telecommunications company and its officers in connection with an SEC investigation relating to internet fraud, financial fraud and disgorgement
• represented a multi-level marketing organization in investigations by the SEC, the NASDR and state securities regulators regarding sales practices, advertising and suitability.

Arbitrations: industry knowledge

We have represented brokers, broker/dealers and brokerage firms in arbitrations of hundreds of customer claims -- including misrepresentations and omissions, suitability, churning, unauthorized trading and other federal and state securities law claims.

From that experience, we understand the law and the rules and customs of each arbitration body -- but also the preferences and tendencies of the arbitrators. This combination of legal and practical knowledge leads to success in matters such as:

• defending a New York broker/dealer and its California-based representative against a securities fraud claim brought by their customers
• defending the subsidiary of a major financial services company in actions arising from the activities of a Florida-based representative
• representing a broker/dealer accused of fraud in connection with a representative's recommendation of a bond transaction
• representing a New York-based brokerage firm in a series of arbitrations arising from a managed-options program
• defending a representative of a Colorado-based broker/dealer in several customer arbitrations alleging securities fraud.

In other securities-industry arbitrations, we represent broker/dealers, managers and representatives in employment and compensation disputes.

Litigation: the resources to prevail

We defend clients in class actions brought under the 1933 and 1934 Acts and state laws including these examples:

• White v. BDO Seidman: 249 Ga. App. 668 (2001) Our client prevailed on all claims on summary judgment in a class action on behalf of hundreds of purchasers of promissory notes. The trial court's decision was affirmed in an important decision interpreting the reliance element in accounting malpractice cases.
• Yadlosky v. Grant Thornton: 197 F.R.D. 292 (E. D. Mich. 2000) We defended a broker/dealer in class actions alleging securities fraud. The trial court denied class certification.
• In re Musicmaker.com: 00-02018 CAS (MANx) Our lawyers defended an underwriter in a class action alleging material misrepresentations in the prospectus and registration statements. The case was dismissed as to our client.

We have litigated matters involving:

• failure to disclose
• sales practice abuses
• insider trading, market manipulation and penny stock cases
• ERISA violations and proxy contests
• mutual fund switching, soft dollar and directed brokerage
• Internet abuses
• unregistered securities
• proxy issues
• financial fraud
• "Fraud on the market" class actions, "mass actions" and RICO claims.

We also represent broker/dealers and insurance companies in cases brought by individual plaintiffs involving sales practices. For example, we are currently representing American General in a Georgia case brought by individuals who opted out of the settlement of a "vanishing premium" class action.

Advice and strategy: building trust, maintaining credibility

The trend towards increased scrutiny by the SEC, NASD Regulation, Inc., and state agencies makes compliance a major concern for everyone in the industry.

A solid reputation is the key to fair treatment in regulatory matters. Thus our first goal is building trust with regulators -- by helping clients build and maintain a well-documented track record of compliance.

We understand our clients' operations -- which enables us to evaluate procedures and systems, identify deficiencies and anticipate regulators' concerns.

As a first line of defense, we review clients' policies and procedures -- either as mandated by an SEC order or in confidential, voluntary investigations -- to build safeguards in areas such as business acceptance and review, market manipulation and insider trading. And, when matters escalate, we respond immediately to represent clients faced with regulatory examinations and investigations. The results are practical recommendations that are sensitive to the each client's business.

They may include:

• streamlined procedures that efficiently document compliance
• methods that update systems to comply with changing rules, regulations and industry trends.

Our clients include:

• broker/dealers
• brokerage firms
• investment advisors
• mutual funds
• insurance brokers
• insurance companies
• corporate officers and directors
• professionals.

Securities Litigation

Litigation: the resources to prevail

We defend clients in class actions brought under the 1933 and 1934 Acts and state laws including these examples:

• White v. BDO Seidman: 249 Ga. App. 668 (2001) Our client prevailed on all claims on summary judgment in a class action on behalf of hundreds of purchasers of promissory notes. The trial court's decision was affirmed in an important decision interpreting the reliance element in accounting malpractice cases.
• Yadlosky v. Grant Thornton: 197 F.R.D. 292 (E. D. Mich. 2000) We defended a broker/dealer in class actions alleging securities fraud. The trial court denied class certification.
• In re Musicmaker.com: 00-02018 CAS (MANx) Our lawyers defended an underwriter in a class action alleging material misrepresentations in the prospectus and registration statements. The case was dismissed as to our client.

We have litigated matters involving:

• failure to disclose
• sales practice abuses
• insider trading, market manipulation and penny stock cases
• ERISA violations and proxy contests
• mutual fund switching, soft dollar and directed brokerage
• Internet abuses
• unregistered securities
• proxy issues
• financial fraud
• "Fraud on the market" class actions, "mass actions" and RICO claims.

We also represent broker/dealers and insurance companies in cases brought by individual plaintiffs involving sales practices. For example, we are currently representing American General in a Georgia case brought by individuals who opted out of the settlement of a "vanishing premium" class action.

Our clients include:

• broker/dealers
• brokerage firms
• investment advisors
• mutual funds
• insurance brokers
• insurance companies
• corporate officers and directors
• professionals.