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NEWS FROM 2006
November 19, 2006 - EIGHT HLGR ATTORNEYS NAMED IN SUPER LAWYERS LIST
We are proud to announce that Bill Gary, Glenn Klein, Susan Marmaduke, Frank Moscato, Jim Mountain, Arden Olson, Sharon Rudnick and Mark Wada have been selected as Super Lawyers in Oregon Super Lawyers magazine. The Super Lawyers selection process is a combination of balloting, blue ribbon panel review and independent research. Only 5% of the attorneys in Oregon have been selected for 2006 Oregon Super Lawyers. For more information, check out Super Lawyers online at superlawyers.com.
October 11, 2006 - OREGON COURT OF APPEALS
Jim Mountain obtained an award from the Oregon Court of Appeals on October 11, 2006, ordering the Oregon Employment Department to pay our client, Nancy Kaib, attorney fees and costs totalling $241,991.34. This is one of the largest fee awards under the Administrative Procedures Act in Oregon history. It follows the Oregon Supreme Court's decision directing the Court of Appeals to award fees in a case in which the Court of Appeals had ruled in favor of our client in an unemployment tax matter.
The Oregon Supreme Court's decision, Kaib's Roving R.Ph Agency v. Employment Department, 338 Or 433, 77 P3d 327 (2003) ("Kaib's IV"), is the leading case on awards of attorney fees under Oregon's Administrative Procedure Act. To read the decision, click here.
September 1, 2006 - BEST LAWYERS IN AMERICA
HLGR is pleased to announce that Bill Gary, Glenn Klein, Jerry Lidz, Frank Moscato and Jim Mountain have been named in several categories in The Best Lawyers in America® 2006–2007. Bill is listed again this year in the Appellate and Commercial Litigation sections; Glenn has been added to the Municipal Law section; Jerry has been added to the Municipal Law section; Frank has been added to the Professional Malpractice Law section; and Jim is listed again this year in the Appellate section. The Best Lawyers in America is generally considered the foremost referral guide
to legal professionals in the United States. The current, 12th
edition of Best Lawyers (2007) represents over 50 specialties in all 50 states and Washington, DC, and is based on the results of the confidential evaluations of more than 415,000 top U.S. lawyers by their peers.
September 6, 2006 - OREGON COURT OF APPEALS in Lowe v. Philip Morris, Inc.
The Court of Appeals affirmed the trial court's dismissal of a medical-monitoring tort - a matter of first impression in the state of Oregon. To read the Court of Appeal's decision, click here.
August 2, 2006 - OREGON COURT OF APPEALS in Logan v. D.W. Sivers Co.
On August 2, 2006, Oregon Court of Appeals (in Logan v. D.W. Sivers Co.) ruled that an agreement to negotiate is enforceable if the parties clearly mainfested their intent to be bound by the agreement, and its terms are sufficiently definite. For more information, click here.
May 30, 2006 - U.S. SUPREME COURT GRANTS PM USA'S PETITION FOR REVIEW IN OREGON CASE
NEW YORK--(BUSINESS WIRE)--May 30, 2006--The U.S. Supreme Court today granted Philip Morris USA's petition for review in an Oregon individual smoker's case, known as Williams Branch.
In its petition, PM USA argued that the punitive damages award is grossly excessive and inconsistent with State Farm v. Campbell, the U.S. Supreme Court's landmark 2003 decision which set forth a series of limitations relating to punitive damages. At $79.5 million, the punitive damages award in this case is approximately 152 times the compensatory damages award.
"Philip Morris USA looks forward to an opportunity to explain to the Court why the punitive damages award in this case should be vacated or drastically reduced," said William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel.
The lawsuit, known as the Williams Branch case, was filed in 1997. In 1999, the jury awarded $821,000 in compensatory or actual damages, an amount that was reduced under state law to $521,000. The trial court reduced the punitive damages award to $32 million, but in a June 2002 ruling the Oregon Court of Appeals reinstated the original $79.5 million punitive damage award.
In October 2003, the U.S. Supreme Court granted review of the case and directed the Oregon Court of Appeals to vacate its June 2002 opinion and reconsider the case in view of State Farm.
On reconsideration, the Oregon Court of Appeals reaffirmed its previous decision and upheld the $79.5 million punitive damages award. In December 2004, the Oregon Supreme Court granted PM USA's request for review of the Oregon Court of Appeal's decision. In February 2006, the Oregon Supreme Court upheld the $79.5 million punitive damage award against PM USA.
See Business Wire.
May 17, 2006 - COURT REJECTS $150 MILLION TOBACCO VERDICT
In an opinion relased May 17, 2006, the Oregon Court of Appeals reversed a $100 million punitive damages award against Philip Morris USA, Inc. and remanded the case to the trial court for a new trial on punitive damages. A majority of the court hearing the case en banc - the full court rather than a three judge panel - held that the trial court incorrectly refused to give Philip Morris' requested jury instruction regarding punitive damages as they relate to out -of-state conduct. The court found that the requested instruction correctly stated the law. The Court of Appeals concluded that the trial court's refusal to give the jury instruction was prejudicial error, particularly in light of plaintiff's closing argument which drew upon extensive references to out-of-state conduct. For a pdf of this ruling, click here.
May 4, 2006 - PDC PROJECT FREE FROM WAGE RULES
Prevailing wage - A judge says the law doesn't cover private contractors who get public help Thursday, May 04, 2006
Ryan Frank - The Oregonian
A redevelopment project run through Portland's urban renewal agency is not required to pay state-imposed minimum wages and benefits for construction workers, a Multnomah County Circuit judge ruled Wednesday.
Judge Henry Kantor took just minutes in a hearing to strike down arguments from the Oregon Bureau of Labor and Industries.
The labor bureau had said private construction projects that receive taxpayer subsidies and include government control over the work should pay prevailing wages.
But in this case, Kantor agreed with the Portland Development Commission. The agency said it didn't control construction because a private company managed the $3.4 million renovation on a Northeast Portland building.
The cash at stake wasn't much -- $225,000 according to the labor bureau. The bigger deal is the precedent the case may set for future government subsidized redevelopment and affordable housing projects.
Labor Commissioner Dan Gardner, a former union leader, has aggressively pursued prevailing wage cases to provide what his staff says are fair wages for workers. But the rulings also have made some developers skittish about the costs the standard wages would add.
Wednesday's ruling brought smiles and handshakes among PDC executives and their lawyer, Caroline R. Guest of the Portland firm Harrang Long Gary Rudnick, and unhappiness from labor bureau officials.
"On first blush, we find it hard to believe that a public agency can spend more than a quarter-billion (dollars) a year on construction projects and doesn't have to pay fair wages and benefits," said Annette Talbott, deputy labor commissioner. "That's one of the reasons we'd consider an appeal."
The state's 1959 prevailing wage law was intended to ensure that public works projects would be performed by contractors who didn't undercut standard wages and training, which would give them an advantage in contracts awarded to the lowest bidder.
The standard wages and benefits are set through annual surveys by the Oregon Employment Department. The state asks all Oregon contractors what they paid each craft during their peak week. The labor commissioner's prevailing wage is the rate that the majority of workers were paid. If there is no majority rate, the prevailing wage is set by the average wages paid. The rates vary by 14 regions across Oregon, said Christine N. Hammond, an administrator in the labor bureau.
The law requires prevailing wage for projects that use public funds and are "contracted for" or "carried on by" a public agency.
That clearly covers government work such as roads and fire stations. But there's a debate among union leaders and government officials about whether public-private projects should pay prevailing wage.
The PDC sued the labor bureau after the bureau wanted to require prevailing wage on a project the PDC subsidized but didn't own or, in its words, manage,
The case centers on a $1.4 million subsidy to renovate a former bakery on Northeast Martin Luther King Jr. Boulevard into the new headquarters for Henry V, a corporate events planning company.
The PDC had a written agreement with Henry V to provide the financial support. But Henry V held the construction contract. With his decision, Kantor said that separation meant the project didn't equal a public work under the law.
It's not clear whether Kantor's ruling clears up what has been a murky state law.
Talbott said she's not sure how the decision will affect the labor bureau's interpretation of the law. "It's still our goal to make the law as clear as possible," she said. "We will work on that."
At the PDC, four more construction projects have been hung up by the prevailing wage debate. Rochelle Lessner, policy director, said she didn't know whether the ruling would lift any uncertainty but that her office would get to work on it today.
Ryan Frank: 503-221-8564; ryanfrank@news.oregonian.com
For pdf version, click here.
June 2006 - Mountain Tops Portland’s Best Lawyers List
Jim Mountain has been chosen as one of the top appellate lawyers in Portland.
Portland’s Best Lawyers list, which appears in the June 2006 issue of Portland Monthly magazine, wascompiled by Woodward/White, Inc. which uses a comprehensive peer review process to rate top legalprofessionals in cities across the US. To see the full list, click here
March 22, 2006 - OREGON FEDERAL COURT RULES IN PROVIDENCE'S FAVOR ON ANTITRUST CLAIMS
Providence Health Plan decided to change providers for outpatient diagnostic imaging in early 2005, favoring some new joint ventures in which Providence Health System has an ownership interest to two clinics owned by others. The clinics sued, claiming that Providence could not terminate their contracts because doing so would violate several antitrust principles. After HLGR  and co-counsel Davis Wright Tremaine filed motions for summary judgment, the clinics withdrew all but one claim and dismissed all other co-defendants, limiting their case to a contention that by terminating their contrcts Providence was attempting to monopolize outpatient imaging markets. On March 22, 2006, the US District Court for Oregon rejected that claim, granting summary judgment in favor of our client by accepting our argument that Providence had no power to monopolize the markets in question even if it had wanted to do so. To read the opinion, click here.
Oregon Courts News
October 13, 2005 - Oregon Court of Appeals recognizes local governments' right to defend actions
When landowners propose to subdivide their land for development, they apply for a permit to partition the land. If the proposed development will burden the public, the government may condition its approval on some concession by the landowner to mitigate that burden. For example, local governments commonly require the landowner to concede some interest in the land for street improvements or the placement of public utilities. The interest that the local government exacts must, in the words of the US Supreme Court in Dolan v. City of Tigard, be "roughly proportional" to the impact of the proposed development.
HLGR represents the City of Eugene in Hammer v. City of Eugene. The plaintiff, Mr. Hammer, applied to the city to partition his land into three parcels. The city's planning director approved the application subject to certain conditions, including the requirement that plaintiff convey to the city either title to, or an easement on, portions of the property. Plaintiff gave those concessions without objections, and the city approved the partition in 1998. In 2000, plaintiff sued the city, seeking compensation for the concessions and arguing that the city was precluded from showing, after the fact, that the concessions were roughly proportional to the impact of the proposed development.
The Oregon Court of Appeals rejected plaintiff's argument and agreed with HLGR's position in defense of the City of Eugene. The appellate court held that the the government must be permitted to make its case for rough proportionality after the fact. The court concluded:
"Plaintiff's proposed rule tells us nothing about whether justice requires compensation. In fact, in cases in which there is rough proportionality, the rule would saddle taxpayers with the burden of paying compensation that justice does not require."
Press Release from the City of Eugene
(Below is an excerpt from Oregon Courts News, 2005-12, Willamette Law Online - Willamette University College of Law)
April 28, 2005, the Oregon Supreme Court
April 28, 2005 - Kaib's Roving R.Ph. Agency v. Employment Dept.
Case No.: S551165
http://www.publications.ojd.state.or.us/S51165.htm
AREA OF LAW: ATTORNEY FEES
HOLDING: (Opinion by Gillette, J.) When a court finds that a state agency acted without a reasonable basis in fact or law, ORS 183.497(1)(b) imposes a mandatory obligation to award attorney fees and costs.
This dispute arises out of a judicial review proceeding in which the Court of Appeals vacated and remanded for reconsideration an order of the Employment Department (Department) that affirmed an unemployment tax assessment against Kaib's Roving R.Ph. Agency (Kaib's). The Court of Appeals denied Kaib's request for attorney fees and costs under ORS 183.497(1). The Supreme Court found that under ORS 183.497, attorney fees and costs may be awarded "if the court finds in favor of the petitioner." The Department argued that "in favor" only refers to victories on the merits of the claim, not procedural matters. The Court determined that a decision of the court may be "in favor of" a party, even if it addresses only procedural matters. The Court then turned to Kaib's argument that because the Court of Appeals misconstrued its reading of ORS 183.497(1)(b), it erred in failing to award attorney fees. The Court agreed. Under ORS 183.497(1)(b) the court "shall allow...attorney fees and costs" if the court finds that a state agency "acted without a reasonable basis in fact or in law." Contrary to the Court of Appeals' reading, the statute goes beyond merely allowing court discretion to award fees but, instead, requires the court to award fees under the circumstances described. Since this case fits the other criteria in ORS 183.497(1)(b), Kaib's request for an award of attorney fees was mandatory. Reversed and remanded to award reasonable attorney fees and costs. [Summarized by Laura Watts.]
For more information, see Kaib's Roving R.Ph. Agency v. Employment Dept., Case No.: S51165."
Client Alerts 2001 to 2005
Employment:
- Abusive Behavior by Office Bully Can Create Liability for Sexual Harassment (December 9, 2005)
- Minimum Wage Will Be $7.50 As Of January 1, 2006 (October 5, 2005)
- Hurricane Katrina Relief: Leave Donation Programs (September 30, 2005)
- Highlights and Lowlights for Oregon Employers from the 2005 Legislative Session
(August 16, 2005)
- HB2800: New Responsibilities for Hospitals (July 25, 2005)
- Employee Identity Theft: New Responsibilities for Employers (May 26, 2005)
- Disability Discrimination: When is a Job Offer a "Real" Offer? (May 20, 2005
- Minimum Wage Will Be $7.25 As Of January 2005 (January 29, 2004)
- NLRB Overrules Prior Decision and Finds That Weingarten Rights Do Not Extend to Non-union Employees (July 23, 2004)
- Investigations of Workplace Misconduct and Employee Credit Reports Just Got Easier (June 18, 2004)
- New Department of Labor Regulations for Exempt Employees Under The Fair Labor Standards Act (June 18, 2004)
- Minimum Wage Will Be $7.05 As of January 1, 2004 (September 17, 2003)
- "Mixed Motive" Lawsuits under Title VII (July 21, 2003)
- Oregon and Washington State Courts Address Hostile Work Environment (July 21, 2003)
Estate Planning:
Municipal Law:
Other Alerts:
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