White and Williams LLPExecutive Newsletter Fall 2008

by Randy J. Maniloff and Taryn B. Kindred

The Fair and Accurate Credit Transaction Act (FACTA) litigation and all its abusiveness have been chronicled in detail by the legal media. Here’s the elevator pitch. Identity theft is a serious problem. So Congress set out to reduce the amount of financially sensitive paper floating around by prohibiting merchants from printing identifying credit and debit card information on receipts. But FACTA went awry.

When it comes to identity theft, the receipts to worry about are those that contain more than the last five digits of a customer’s card number. However, the law was drafted in such a manner that it is violated if a merchant prints a receipt containing nothing more than a card’s expiration date — even if the card numbers were properly truncated. It turned out that many merchants assumed that they were in compliance with FACTA by simply truncating their customers’ card numbers on receipts, and didn’t realize they needed to omit the expiration date as well. That seems like an honest mistake, and one without likely consequences most of the time. After all, knowing the card’s expiration date will not enable identity theft if the thief lacks access to sufficient accompanying card numbers. But the statute says what it says. As a result, many thought-to-be-compliant merchants found themselves being sued for issuing non-compliant receipts.

The question here was not whether stores would pay for someone’s actual experience of identity theft. FACTA eliminates the need to prove actual injury by allowing for an award of statutory damages in an amount between $100 and $1,000 for a willful violation. That doesn’t sound like much. But the law also allows for the recovery of attorney’s fees — the magic provision that can turn lawyers into social activists. Not to mention that where there is one FACTA violation there are sure to be many (many, many). Enter the class action lawyers, coupon settlements and six-figure attorney’s fees awards. See, for example, Palamara v. Kings Family Restaurants, 2008 U.S. Dist. LEXIS 33087 (W.D. P.A. April 22, 2008) (court approves FACTA settlement that

awards each class member their choice of ice cream, soup, salad or homemade pie from the defendant’s restaurant, with a value of

up to $4.68. As for the plaintiffs’ attorney’s fees: an amount not

to exceed $75,000). FACTA has been the

Olympics of gaming the system. In many instances,

it serves no purpose whatsoever.

Insurance CoverageThe Heat is On . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Litigation U .S . Supreme Court Again Limits Recovery for Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . .3

International Business How China’s First Antitrust Law Will Impact Foreign Investors . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Business: Forebearance Agreements Forbearance Agreements and Waiving the Protections of Automatic Stay . . . . . . . . . . . . . . . . . . . .5

Income Tax Alert Tax Alert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

New and Notable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

2008 Coverage College™ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Delaware Insurance Law Delaware Extends the Duty to Provide Notice of Limitation Periods to Property Insurers . . . . . . 11

Products Liability: Intended Uses Marathon Products Case Ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Table of Contents

CommerCial litigation: insuranCe

Whole Enchilada, Inc. v. Travelers: Taking a Bite Out of FACTA Litigation

From the Chair…George J. Hartnett Chair, Executive Committee

New Addition: Tom FiddlerIt is with great pride that I warmly introduce

Tom Fiddler, the newest partner to join the Firm’s Commercial Litigation Department. For 20 years, Tom has represented clients in disputes arising out of a wide range of business matters. His cases have involved contractual breaches, complex financial transactions, investment fraud, real estate acquisition and development, and trade secrets. He also has litigated matters of bank fraud, accounting malpractice, commercial foreclosures, commercial landlord-tenant relationships, franchise and distributorship relationships, and restrictive covenants. Tom received his Bachelor of Arts, magna cum laude, from Indiana University of Pennsylvania, and he earned his Juris Doctor at the University of Pittsburgh School of Law. Tom is located in our Philadelphia office and can be reached at 215.864.7081 or fiddlert@whiteandwilliams.com.

Expansion and RelocationWhite and Williams’ presence in the New York legal

marketplace is growing. Sixteen attorneys now handle sophisticated business transactions, and litigate high-stakes cases both at the trial and appellate levels. The growth led us to move into larger office space in our home of One Penn Plaza. In early October, we began the first stage of our relocation from the 18th floor to the 41st floor of the landmark building. The move will be completed by the beginning of 2009.

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White and Williams LLPWhite and Williams LLPPage 2

insuranCe Coverage

The Heat is On Insurance Coverage For Global Warming Claims Steams Up

by Gregory S. Capps

Global warming is a subject of growing public concern as we continue to hear weekly reports about the adverse consequences our society faces as a result of this phenomenon. Consequently, in the last several years, a wide range of plaintiffs have sued various defendants alleging diverse claims purportedly resulting from global warming. These suits have included state and local government and environmental groups challenging the inactivity of federal regulatory agencies. In other cases, companies have sued state governments that have adopted greenhouse gas emission standards more stringent than the federal law requires. There also have been suits against large manufacturers or major utilities claiming that plant emissions have contributed to global warming. These suits trigger novel insurance coverage questions.

A conflict arising out of Alaska illustrates many of the issues. The native village of Kivalina and the city of Kivalina, Alaska, initiated an action against 24 large U.S. and international oil and power companies alleging that their actions substantially contributed to global warming, which, they allege, is a nuisance causing severe harm to their communities. The plaintiffs allege that the defendants contributed to global warming through their emissions of greenhouse gases. They further allege that some of the defendants created a false scientific debate about global warming in order to deceive the public.

The complaint in the Kivalina lawsuit alleges that global warming is melting the Arctic sea ice that formerly protected the village from winter storms. The plaintiffs complain that buildings and other critical infrastructure is imminently threatened with permanent destruction. From that, the plaintiffs seek a declaratory judgment for future monetary expenses and damages in connection with the nuisance of global warming. They also seek costs of relocating the village — estimated to be from $95 million to $400 million.

One of the defendants in the Kivalina lawsuit, AES Corporation (AES), owns fossil fuel-fired electric generating facilities throughout the country. Upon being served with the Kivalina lawsuit, AES turned to its insurer, Steadfast Insurance Company (Steadfast), for coverage. Steadfast had issued primary commercial general liability insurance to AES from 2003 to the present. In response to the tender, Steadfast agreed to defend AES in the Kivalina lawsuit under a reservation of rights, but it also filed a declaratory judgment action seeking a determination that it is not obligated to defend or indemnify the Kivalina lawsuit. Steadfast contends that it does not owe coverage because global warming is not the result of any “accident” (given AES’s long-

standing knowledge of risks associated with greenhouse gases). It also contends that the damage alleged in the Kivalina lawsuit incepted prior to the effective date of the Steadfast policies, and therefore constituted a “loss in progress” for which there is no coverage. Finally, Steadfast contends that the emission of greenhouse gases is “air pollution” subject to a total pollution exclusion contained in Steadfast policies.

The Steadfast case presents complex questions relating to occurrence and known loss which issues are specific to the language in the Steadfast policies. However, with respect to the pollution exclusion issue, the parties hotly dispute whether greenhouse gases are considered a “pollutant.” The policyholder may argue that this issue was already addressed in other forms of coverage litigation, such as Donaldson v. Urban Land Interests, Inc., 564 N.W.2d 728 (Wis. 1997), where the court held that exhaled carbon dioxide in an office building was not a pollutant, finding that the gas is “universally present and generally harmful” and a “necessary part of life.” Conversely, the insurer may argue that the pollution exclusion does apply, especially in light of Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007), where the United States Supreme Court held that greenhouse gases are in fact “air pollutants” under the Clean Air Act.

As plaintiffs continue to file lawsuits relating to the alleged adverse consequences of global warming, future insurance claims and declaratory judgments in this area will present even more questions. For example, there will likely be questions raised as to whether the underlying global warming claims involve “damages”

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litigation

U.S. Supreme Court Again Limits Recovery for Punitive Damagesby Edward M. Koch and Kimberly P. Verruso

On March 23, 1989 at 9:12 p.m., a massive tanker carrying 53 million gallons of crude oil left the port of Valdez, Alaska and sailed through the Valdez Narrows in its journey to the lower 48 states. Less than three hours later, the 900-foot long vessel ran aground, tearing open its hull and spilling 11 million gallons of crude oil into Prince William Sound. Nearly twenty years later, the account of the ill-fated voyage of the supertanker Exxon Valdez is a well-known calamity of global proportion, yet judicial resolution of its effects has been out of reach — at least until the U.S. Supreme Court’s ruling in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008).

Prior to Exxon v. Baker, the Supreme Court’s review of punitive damage awards had been limited to constitutional issues that were brought under state law. In Gore v. BMW, 517 U.S. 599 (1996), the Court developed a three-part test in an effort to curtail the award of arbitrary punitive damages and to impose limits on a jury’s discretionary authority. In 2003, the Court again addressed the excessiveness of punitive damage awards and determined that “few awards exceeding a single-digit ratio between punitive damages and compensatory damages . . . will satisfy due process.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).

Recognizing the need to protect against the possibility of unpredictable and unnecessary punitive awards, the Supreme Court in Exxon v. Baker established a set ratio for assessing punitive damages. The ruling comes several years after the initial multiphase class action lawsuit was brought where, in 1994, a jury in Anchorage, Alaska, awarded $287 million in compensatory damages to the class and $5 billion in punitive damages. Several appeals later, in December 2006, the Ninth Circuit ultimately remitted the punitive damage award to $2.5 billion,

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reasoning that the amount was more in line with legal precedent and that, in assessing Exxon’s reprehensible conduct, there were several mitigating factors among which included Exxon’s prompt efforts to clean up the spill and to compensate certain plaintiffs for economic loss. Challenging the size of the punitive award yet again, Exxon appealed to the United States Supreme Court arguing that “the award exceeds the bounds justified by the punitive damages goal of deterring reckless (or worse) behavior and the consequently heightened threat of harm.”

In adjudicating this claim, the high court conducted an exhaustive review of the doctrine of punitive damages and principles of punishment in modern civil law. Justice Souter examined comprehensive surveys of awards from abroad and throughout the United States and found that “[t]he real problem, it seems, is the stark unpredictability of punitive awards.” This was most apparent when the Court discovered inconsistent results in punitive awards, not only among cases involving a wide range of circumstances where such a variation might be acceptable or even desirable, but in cases with strikingly similar facts (citing to one of its own leading cases on punitive damages where an Alabama jury awarded $4 million in punitive damages, and to a second Alabama case with markedly similar facts that awarded no punitive damages at all).

Recognizing that the twin interests of punitive damages — retribution and deterring harmful conduct — are the same as those advanced in criminal law, the high court determined that its “experience with attempts to produce consistency in the analogous business of criminal sentencing leaves us doubtful that anything but a quantified approach will work” in producing uniformity among punitive awards. The Court rejected the idea of setting a statutory cap as in criminal law, noting that there is no ‘standard’ tort or contract injury, in favor of “pegging” punitive damages to compensatory damages through the use of a ratio. The high court’s use of a ratio also addresses the effects of inflation over time as a “court cannot say when an issue will show up on the docket again.”

Relying on case studies throughout the United States reflecting punitive awards deemed reasonable by judges and juries, the Court found that the median ratio of punitive to compensatory awards has remained at less than 1-1, or approximately 0.65-1. This means that, in most cases, the compensatory damage award is greater than the punitive award. Justice Souter then concluded “that a 1-1 ratio, which is above the median award, is a fair upper limit in such maritime cases.”

Although the majority opinion maintained that it was deciding Exxon v. Baker strictly as a matter of federal

maritime law subject to congressional revision, the opinion

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by Chunsheng (Tony) Lu

For many foreigners, the 2008 Olympic Games was the most exciting event in China this summer. But for companies or investors looking to do business in China, a new antitrust law may have a much longer effect than the Olympics.

China’s new antitrust law went into effect on August 30, 2008 — approximately 15 years after various attempts and efforts by the Chinese government in establishing a comprehensive antitrust legal framework. The antitrust law consists of eight chapters and 57 articles. Similar to most antitrust laws in other jurisdictions such as the United States and European Union, the Chinese antitrust law addresses traditional antitrust issues, including trade cartels, restrictive trade agreements, monopoly power, and market concentration through mergers and acquisitions. Unlike many antitrust laws, however, China’s law contains a chapter specifically addressing the monopolistic actions by the administrative bodies.

Concentration of UndertakingsThe provisions in the antitrust law regarding the review and

approval of a Foreign Mergers and Acquisitions are set forth in Chapter Four (The Concentration of Undertakings). The term “concentration” is defined as: (1) mergers between undertakings; (2) acquisition of control over other undertakings by way of equity or assets acquisition; (3) acquisition of control over other undertakings by contract or other means. Concentrations that reach a certain threshold level are required to notify the Antitrust Enforcement Authority (an agency newly set up under the State Council pursuant to the antitrust law — the AEA) and cannot be consummated without the AEA’s prior approval. The antitrust law itself does not provide the threshold standards (the Standards); rather, it states that the State Council will promulgate them.

The State Council of China recently released standards to provide guidance on the review of concentrations. The standards specify the thresholds that will trigger the notification requirement. According to the standards, the notification is required whenever: (1) the worldwide sales revenue during the previous fiscal year of the companies involved in the concentration exceeds RMB 10 billion and two or more of the companies involved had sales revenue in China during the previous fiscal year over RMB 400 million; or (2) the sales revenue in China during the previous fiscal year of the companies involved in the concentration exceeds RMB 1.2 billion and two or more of the companies involved had sales revenue in China during the previous fiscal year in excess of RMB 400 million. It is notable that the standards differ from the “old standards” for antitrust review set forth in the regulations for merger with and acquisition of domestic enterprise (effective September 8, 2006, commonly referred to

as the No. 10 Decree), which included lower thresholds. In effect, the standards will supersede and replace the requirements of the No. 10 Decree.

Required Documentation for NotificationPursuant to the antitrust law, the acquirer or all of the

merger parties should submit the notification to the AEA and the notification shall include the following: (1) the timing of the anticipated transaction, the involved parties’ names, domiciles, and their business scopes; (2) a description of the effects of concentration on the competition status in the relevant market; (3) the concentration agreement or other written arrangement (such as a stock purchase agreement or an asset purchase agreement); and (4) a financial accounting report of the undertakings for the previous accounting year, which shall be audited by an independent accounting firm. In addition, the antitrust law has a catch-all provision which allows the AEA to request “other documents and information” as it deems necessary.

Review Procedure and TimingThe antitrust law provides that within 30 days from the date

of receipt of the complete notification materials from the involved party, the AEA shall make an initial decision as to whether to conduct a further review. If the parties to the transaction do not receive any further review notice upon expiration of the 30 day period, the transaction is deemed to be approved. If the AEA determines to proceed with the further review, it shall notify the parties in writing and complete the review within 90 days of the determination date. The antitrust law also provides three situations under which the AEA can extend the 90 day review period, but such extension cannot exceed 60 days: (1) where the parties agree to extend the review period; (2) where the documents submitted are inaccurate and require further verification; or (3) where the circumstances have significantly changed after the notification by the parties.

international Business

How China’s First Antitrust Law Will Impact Foreign Investors

The decision to enforce such waivers is by and large left to the discretion of the court, which looks to the totality of the circumstances, but more particularly is based on four relevant factors: (1) the sophistication of the party making the waiver; (2) the consideration given for the waiver, including the lender’s risk and the length of time of the waiver; (3) whether other parties are affected, including unsecured creditors and junior lienholders; and (4) the feasibility of the borrower’s plan.

In Bryan Road, the court stated that the borrower’s representation by an experienced bankruptcy lawyer, capable of understanding the forbearance agreement, satisfied the sophistication requirement. Second, the consideration given by the lender for the waiver need not be great, so long as it is what the borrower wanted at the time the agreement was signed (a two-month forbearance period was found to be sufficient). The third and fourth factors are more situation-specific factual determinations. Based on the analysis of the above factors, the court found that stay relief was warranted “for cause” under 11 U.S.C. §362(d)(1).

Therefore, with some care, the first two factors can be easily established. By using the four factors laid out in Bryan Road, lenders may determine with greater accuracy the likelihood that waivers of the automatic stay in prepetition forbearance agreements will be enforced, recognizing that the treatment of such waivers can vary from court to court.

Tim Davis is a partner in the Real Estate and

Institutional Finance Practice Group and has

a broad-based structured real estate finance practice.

He can be reached at 215.864.6829 or

davist@whiteandwilliams.com.

Nancy Sabol Frantz is a partner in the Real Estate

and Institutional Finance Practice Group, and

focuses her practice on finance issues and represents

institutional investors as well as entrepreneurs in

complex commercial real estate and structured finance

transactions. She can be reached at 215.864.7026 or

frantzn@whiteandwilliams.com.

Jefferson Kim focuses his practice on the

representation of various clients in transactions

involving real estate acquisitions, real estate finance,

secured and unsecured lending and asset based

financing. He can be reached at 215.864.7138 or

kimj@whiteandwilliams.com.

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by Timothy E. Davis, Nancy Sabol Frantz and Jefferson K. Kim

Under the current “credit crisis,” we can expect that more commercial loans will become non-performing. These loans will require restructuring through appropriate forbearance and loan modification agreements. One key aspect in preparing these agreements is the inclusion of a waiver of the protections of the automatic stay under the bankruptcy code in the event the borrower subsequently files for bankruptcy.

It was recently reaffirmed in In re Bryan Road, LLC, 382 B.R. 844 (Bankr. S.D. Fla. 2008), that, under certain circumstances, forbearance agreements with waivers of automatic stay provisions are enforceable, even when generally, such waivers are not enforceable when part of an initial loan transaction. In Bryan Road, the borrower, with assistance of experienced counsel, agreed to waive the protections of the automatic stay of the bankruptcy code in a prepetition forbearance agreement in exchange for rescheduling a foreclosure sale in order to afford the borrower additional time to complete a possible refinancing. The borrower subsequently filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code, and the lender sought stay relief from the court. Following its analysis, the waiver was found to be enforceable and the lender’s motion for relief from the automatic stay was granted.

Business: ForeBearanCe agreements

Forbearance Agreements and Waiving the Protections of Automatic Stay

New York Managing Partner Bob Wright reports that White and Williams’ reputation has helped both to attract experienced lateral attorneys and to retain valuable colleagues. Attorneys in the New York office practice in commercial litigation, corporate and securities law, real estate and bankruptcy, and represent a broad cross section of industries, both foreign and domestic. These attorneys seamlessly draw upon all of our practice groups throughout our network of seven other offices to provide effective legal solutions to business challenges. Our new address is:

White and Williams LLPOne Penn Plaza250 W. 34th StreetSuite 4110 New York, NY 10119

Our phone number (212.244.9500) and fax number (212.244.6200) remain unchanged.

If you have not already done so, I hope you will stop by and visit our new New York home.

From the Chair… (Continued from page 1)

inCome tax alert

Tax Alert by William C. Hussey and Ryan P. Flynn

On October 3, 2008, President Bush signed the Emergency Economic Stabilization Act of 2008 (the Stabilization Act) into law. It was principally designed to carry only the $700 billion financial “bailout” plan. In order to increase the odds of passage, the bill was amended to include a number of tax provisions. This past summer also witnessed the enactment of the Housing and Economic Recovery Act of 2008 (the Housing Act) with several tax provisions designed to ease the ailing housing market. Among the tax provisions in these two pieces of legislation that may be of interest to many individuals and business owners are:

• Under theHousingAct,a federal income taxcreditequal to10 percent of the purchase price of a principal residence is now available to first-time homebuyers. In order to qualify as a first-time homebuyer, the taxpayer must not have owned an interest in a principal residence in the United States during the prior three years. The credit is generally available only for homes purchased between April 8, 2008 and July 1, 2009. The maximum allowable credit of $7,500 begins to phase out for joint filers with adjusted gross incomes (AGIs) exceeding $150,000 ($75,000 for single filers), and is not available to joint filers with AGIs exceeding $170,000 ($95,000 for single filers). This new credit, like other tax credits, reduces a person’s tax liability on a dollar-for-dollar basis, and if the credit is more than the tax you owe, the difference is refundable. Unlike other tax credits, however, the new credit must be paid back to the Government ratably over a period of 15 years without interest. Thus, the new credit for first-time homebuyers is the equivalent of an interest-free loan from the Government.

• Thestandarddeductionforthe2008taxyearis$10,900forcouples filing jointly ($5,450 for singles). Under the Housing Act, homeowners who utilize the standard deduction will also receive a deduction equal to the lesser of 100 percent of the state and local property tax paid or $1,000 for joint-filers ($500 for singles). Prior to the Housing Act, homeowners who did not itemize deductions received no federal income tax benefit for state and local property taxes paid. Now, those taxpayers will be able to deduct at least some of their state and local property taxes. The Stabilization Act extended this deduction to 2009 as well.

• The Stabilization Act includes a three-year extension to 2012 for home mortgage debt forgiveness relief under Code Section 108. Traditionally, when a lender forgives any mortgage debt, the cancelled debt is treated as taxable income. The new bill extends a temporary provision that would otherwise expire soon, which allows taxpayers to exclude

taxable income up to $2 million of cancelled home mortgage debt. However, the forgiven debt must be attributable to the purchase, building or upgrading of a primary residence. Thus, the provision does not apply to other indebtedness which may be forgiven, such as a home equity loan that was used for another non-qualified purpose.

• The Stabilization Act boosts Alternative Minimum Tax(AMT) exemption amounts for individuals for 2008. For this tax year, the exemption levels increased to $69,950 for married individuals filing jointly and surviving spouses (up from $66,250 for 2007); $46,200 for unmarried individuals (up from $44,350 for 2007); and $34,975 for married individuals filing separately (up from $33,125 for 2007). The Act further provides that certain nonrefundable credits, including the dependent care credit, the adoption credit and the mortgage credit, may now also be used to offset both AMT and regular income tax liability. The Act also liberalizes the AMT refundable credit amount rules. Specifically, for tax years beginning after 2007, the Act generally allows long-term unused Minimum Tax Credits to be claimed over a two-year period (rather than five years) and eliminates the AGI phase-out limits for such refundable credit.

• Under the Stabilization Act, more than 30 tax breaks thateither expired at the end of 2007 or were soon set to expire are extended. Included are the following individual tax provisions (that are retroactively applicable for the 2008 tax year and also extend to the 2009 tax year):

o The election to deduct state and local general sales tax which is most useful to those taxpayers who live in a state with no income taxes, such as Florida;

o The above the line deduction for higher education expenses (subject to certain restrictions and phaseouts for higher income earners); and,

o Taxpayers age 70 1/2 or older can continue to make non-taxable IRA distributions to eligible charities.

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Federal judges have said so; but they have also said that they are powerless to do anything about it.

FACTA: The Congressional FixFACTA is unique for another reason. Avoiding the political

divisiveness that so often accompanies any effort at tort reform, Congress stepped in relatively quickly to close the loophole that allowed for basing liability on nothing more than an expiration date violation.

This summer, President Bush signed the Credit and Debit Card Receipt Clarification Act (Public Law No. 110-241) into law. The Act states that any person who printed an expiration date on a receipt that was provided to a consumer between December 4, 2004 and June 3, 2008, but which otherwise complied with the card number truncation requirement, shall not be deemed in willful noncompliance with FACTA.

The Act does not do away with the basing of FACTA violation solely on expiration dates. Rather, by deeming that an expiration date violation taking place during this window will not be considered “willful,” it does away with the customer’s ability to recover statutory damages (which, of course, are the only damages that matter since actual damages can’t be sustained). The Act went into effect and, poof, a boatload of FACTA cases disappeared.

FACTA — The Insurance FixAny merchant that commits an expiration date violation after

the Act’s effective date of June 3 is back in the soup, subject to statutory damages if “willfulness” can be proven.

So despite Congress’ efforts, FACTA lives on and the possibility of a second wave of litigation looms. At this point, however, those retailers that are still printing expiration dates on receipts are the proverbial mom and pops. The national franchise retailers and restaurants have already been put through the drill. If the remaining FACTA malefactors are small retailers and restaurants (which, small though they may be, might have printed thousands of non-compliant receipts at $100 to $1,000 a pop), then the availability of insurance to fund the litigation will likely become a crucial factor in determining how FACTA litigation evolves from here.

Because this litigation is driven by attorneys’ economic self-interest, there will be far less enthusiasm for pursuing it if insurance proceeds are not available for FACTA damages and in particular for the attorney’s fees needed to settle. But if insurance money is available, FACTA will remain, as it has been, low-hanging litigation fruit. Therefore, resolution of the insurance coverage questions will likely go a long way toward determining FACTA’s future.

That process has now begun. A Pennsylvania federal court recently issued what is apparently the first decision to address insurance coverage for a FACTA action. On September 29, the Western District of Pennsylvania issued a decision in Whole Enchilada, Inc. v. Travelers Property and Casualty, No. 2:07-cv-1533, finding that no coverage was available to a

policyholder under a commercial general liability (CGL) policy for an alleged violation of FACTA. The business in question, a restaurant in Pittsburgh, had provided the plaintiff in the underlying putative class action with an electronically printed receipt that included the expiration date of his credit or debit card.

The question addressed by the court was whether coverage was available under the “Personal Injury” section of a CGL policy issued by Travelers Insurance. The Travelers policy was amended by endorsement to define “personal injury” as “injury, other than ‘bodily injury’ arising out of one or more of the following offenses:... Oral, written or electronic publication of material that appropriates a person’s likeness, unreasonably places a person in a false light or gives unreasonable publicity to a person’s private life.” (emphasis added).

The Whole Enchilada court concluded that, based on the nature of a FACTA violation — stemming for a one-on-one transaction between customer and merchant — it does not involve the kind of public communication to which the terms “publication” and “publicity” refer.

The Whole Enchilada court addressed coverage under a non-standard definition of “personal injury.” But most FACTA claims will test whether coverage is available for “personal injury” that is defined as oral or written publication, in any manner, of material that violates a person’s right of privacy. However, while it addressed “publicity,” the Whole Enchilada court also concluded that FACTA does not violate a person’s “privacy right,” when such policy language was not even before it. For this reason, and others, Whole Enchilada is broad enough to encompass those claims that are brought under the standard ISO definition of “personal injury.” That is the take-away point from the case.

If a second wave of FACTA claims is on the horizon aimed at small companies that have done no real injury to consumers, then the lack of insurance availability may help to prevent the claims from being brought in the first place.

This is an excerpt of an article that originally appeared on the Manhattan

Institute’s Point of Law website in October. The full version is available at

http://www.pointoflaw.com/columns/archives/2008/10/whole-enchilada-

inc-v-traveler.php.

Randy Maniloff is a partner in the Business Insurance

Practice Group and concentrates his practice on the

representation of insurers in coverage disputes. He can

be reached at 215.864.6311 or

maniloffr@whiteandwilliams.com.

Taryn Kindred represents insurers in various coverage

disputes involving general liability. She can be reached

at 215.864.6308 or kindredt@whiteandwilliams.com.

Whole Enchilada, Inc. v. Travelers: Taking a Bite Out of FACTA Litigation (Continued from page 1)

White and Williams LLPPage 8

New and Notable John Balaguer, Managing Partner of the Wilmington

office, was admitted to the Delaware Chapter of the American Board of Trial Advocates.

Merritt Cole, Chair of the Securities Law Practice Group, served as course planner and moderator for the program, Proxy Contests — Hot Topics and Trends, sponsored by the Business Organizations Committee of the Philadelphia Bar Association. He will appear as a panelist for The SEC and the Small Company program at the 14th Annual Business Lawyers’ Institute sponsored by the Pennsylvania Bar Institute later this month. Merritt was also appointed to serve on the ABA Advisory Panel, which advises the American Bar Association regarding its direction and issues facing the legal profession.

Mary Dixon, of our Litigation Department, serves as co-chair of the Publicity/Newsletter Committee of the Third Circuit Bar Association.

John Encarnacion, of our Subrogation/Property Department, spoke on behalf of the Philadelphia Bar Association during the naturalization ceremonies at the U.S. District Court for the Eastern District on September 18.

Dick Kolb, of our Healthcare Law Group, was elected to the Board of the Arthritis Foundation, Eastern Pennsylvania Chapter.

Chunsheng (Tony) Lu, of our China Business Practice Group, was one of 35 lawyers honored as a 2008 Lawyer on the Fast Track during a dinner reception at the Crystal Tea Room in Philadelphia.

Randy Maniloff, of our Commercial Litigation Department, recently published “Litigation Alchemy: Will ‘FACTA’ Amendment End Conjuring of Cash from Credit Card Receipts?” for The Washington Legal Foundation and “Whole Enchilada, Inc. v. Travelers: Taking a Bite Out of FACTA Litigation” for The Manhattan Institute’s Point of Law website. Randy was also recently selected by his peers for inclusion in The Best Lawyers in America 2009.

Wes Payne, of our Litigation Department, authored an essay “Gardner v. State Farm Fire and Cas. Co.: A Proper Investigation Eliminates Bad Faith Claim” for the Pennsylvania Defense Institute and co-authored an article with Jennifer Wojciechowski entitled, “Punitive Damages Rejected When Insurer Makes ‘Extremely Close Call,’” for the Washington Legal Foundation. Wes also gave a number

of presentations to various local and national associations and was appointed to the Executive Committee of the Philadelphia Association of Defense Counsel (PADC).

Gaetano Piccirrilli, of our Litigation Department, was elected and appointed to serve a five-year term on the Pennsylvania Real Estate Commission.

Chuck Roessing, Managing Partner of the Berwyn office, is teaching “The Law of Healthcare Administration,” in the MBA program at DeSales University.

Tony Salvino, of our Litigation Department, spoke to the PMA Insurance Group and its insured on the issue of Aging Workforce and Pennsylvania Workers’ Compensation in Harrisburg, Allentown and Philadelphia on September 24, October 3 and October 24, respectfully. Tony will also speak at the Orthopedic Associates of Allentown Client Seminar on December 4, 2008 on the issue of Pennsylvania Workers’ Compensation, the Defense Perspective.

Jim Scott, of our Litigation Department, presented a program on October 14 entitled Pending Products Liability Cases Before the Pennsylvania Supreme Court at the Annual Conference of the Pennsylvania Defense Institute in Annapolis, Md.

Judy Sullivan, of our International Law Group, was one of 50 professionals invited to attend a two-day retreat in September with New Jersey Governor Jon Corzine and other state leaders of industry, education, business and government to plan a strategy for the future of the state.

Bill Taylor, of our Commercial Litigation Department, presented on the subprime mortgage crisis in the United States at the annual General Assembly meeting of the Pan American Surety Association (PASA) in Rio de Janeiro, Brazil. In addition to the presentation, Bill prepared a lengthy paper, which he also presented at the meeting.

Gale White, Chair of the Business Insurance Practice Group, was elected Director of the Federation of Defense & Corporate Counsel. She will serve a two-year term.

Dave Zaslow, of our Professional Liability, Healthcare, and Transportation Practice Groups, was awarded the Pennsylvania Stars of Life Award by the Ambulance Association of Pennsylvania for his dedication and contribution to emergency medical services.

Page 9

Factors Considered in the Review ProcessThe antitrust law directs the AEA to consider the following factors in determining

whether the concentration exists: (1) market share and the ability to control the market; (2) concentration degree of the relevant market; (3) possibility of eliminating or restricting competition; (4) effect on market access and technology advancement; (5) effect on consumers and other relevant undertakings; and (6) effect on the development of the national economy.

Based on these factors, the AEA shall make a decision as to whether to allow the concentration. Even if the AEA concludes that the concentration has the effect of eliminating or restricting competition, the concentration can still be permitted if it can be proven that the positive effects of such concentration significantly outweigh the negative effects or if the allowance of the concentration serves the public interest.

RemediesThe remedies against concentrations formed in violation of the antitrust law include:

(1) an imposition of an administrative fine up to RMB 500,000; (2) injunction of execution or consummation of the concentration; or (3) order to dispose shares or assets, to transfer certain business, or to adopt any other necessary measures to revert the market competition condition back to the condition before the transaction.

National Security CheckIn addition to the concentration examination, when national security is involved in the

case of acquisition of a domestic enterprise by foreign capital or the participation by foreign capital in the concentration of undertakings by other means, a national security review will be conducted in accordance with the relevant antitrust laws and regulations. The antitrust law does not address whether the AEA or other government agencies shall have the power of such review. Further, it is not clear whether such national security review is subject to the time limitation discussed earlier.

ConclusionDespite having many uncertainties and ambiguities, the antitrust law is a significant

step forward in China’s efforts to establish its first comprehensive antitrust law. It is imperative for companies doing business in China to familiarize themselves with the antitrust law with respect to potentially monopolistic business practices and restrictive trade agreements. For those companies intending to merge with or acquire Chinese companies, a thorough understanding of the antitrust law and the standards is necessary to consummate a problem-free transaction.

Chunsheng (Tony) Lu is a member of the China Business Practice Group where

he focuses his practice on corporate and business matters in the U.S. and

abroad. He can be reached at 215.864.7006 or luc@whiteandwilliams.com.

Gary Biehn is Chair of the Business Department and focuses his practice

on corporate matters relating to mergers and acquisitions, emerging

businesses and global transactions. He can be reached at 215.864.7007 or

biehng@whiteandwilliams.com.

How China’s First Antitrust Law Will Impact Foreign Investors (Continued from page 4)U.S. Supreme Court… (Continued from page 3)

included a footnote that, on the record before it, “the constitutional outer limit may well be 1-1,” suggesting that the Court intends its holding to have a much broader application. This is further supported through the Court’s use of state law damages schemes that did not involve claims brought under maritime law, yet were used to determine the proper ratio of punitive to compensatory damages in this case.

Notably, the Court did not draw any bright lines. Instead, it left the door open for higher punitive damage ratios in cases involving willful or malicious conduct, or with behavior driven primarily by the desire to augment profit, all of which demonstrate an enhanced degree of punishable culpability. Consequently, while the 1-1 ratio serves as a more accurate prediction of punitive awards where such awards are warranted, it seems clear that the Exxon v. Baker ruling does not impose an automatic limitation on punitive damage awards.

Ed Koch is Chair of the

Appellate Practice Group.

He can be reached at

215.864.6319 or koche@

whiteandwilliams.com.

Kim Verruso focuses her

practice on matters involving

products liability, premises

liability, construction

defects, insurance defense,

and general negligence

law. She can be reached at 215.864.6242 or

verrusok@whiteandwilliams.com.

White and Williams LLPPage 10

Tax Alert (Continued from page 6)

• The Stabilization Act also retroactively modifies the rulesfor tax return preparer penalties. For returns prepared after May 25, 2007, the act revises the definition of an “unreasonable position” and changes the standards for imposition of the tax return preparer penalty. The preparer standard for undisclosed positions is reduced to “substantial authority,” which conforms to the taxpayer standard. The preparer standard for disclosed positions is set at “reasonable basis.” This retroactive change should help reduce tension between preparers and their clients with respect to the proper reporting of questionable items that was previously introduced by the return preparer standards included in the Small Business and Work Opportunity Tax Act of 2007.

• TheStabilizationActextendstheresidentialenergyefficientproperty credit. In 2009 (but not 2008), a taxpayer may qualify for a credit up to $500 for qualified improvements to make a home more energy efficient, which may include adding insulation, replacing windows or buying an energy-efficient water heater or expenditures for solar or wind power. However, the credit is allowed one-time only and therefore, taxpayers who previously took the credit under prior law cannot do so again.

If you would like to discuss how any of these changes may affect your

financial, tax or estate planning, or have any other tax or estate planning

questions, please contact Scott Borsack (215.864.7048), Bill Hussey

(215.864.6257), Ryan Flynn (215.864.7188) or Kevin Koscil (215.864.6827).

Bill Hussey practices in the Business Department

where he focuses on taxation and estate planning

issues. He can be reached at 215.864.6257 or

husseyw@whiteandwilliams.com.

Ryan Flynn practices in the Business

Department where he focuses on taxation

and estate planning issues. He can be reached at

215.864.7188 or flynnr@whiteandwilliams.com.

IRS Circular 230 Notice: To ensure compliance with certain regulations promulgated by the U.S. Internal Revenue Service, we inform you that any federal tax advice contained in this communication is not intended or written to be used, and cannot be used, by any taxpayer for the purpose of (1) avoiding tax-related penalties under the U.S. Internal Revenue Code, or (2) promoting, marketing or recommending to another party any tax-related matters addressed herein, unless expressly stated otherwise.

2008 Coverage College™

Over 400 insurance claims professionals from 130 companies went “back to school” on September 17, 2008 at the White and Williams Coverage College™ held at the Pennsylvania Convention Center. The “students” spent their day in classes where 25 White and Williams lawyers served as “faculty” for the College. The classes included topics like emerging issues in insurance coverage, as well as “Master’s Classes” in intellectual property, bad faith, reinsurance, insurance coverage for construction defect claims, “additional insured” issues, insurance declaratory judgment actions and class actions. In all, 14 Masters Classes were presented. Students also benefited from a session presented by renowned jury consultant David S. Davis, Ph.D. of R&D Strategic Solutions, LLP in Lexington, MA. The day concluded with a graduation and awards ceremony, followed by a cocktail reception where everyone enjoyed networking and socializing.

Page 11

White and Williams LLPwww.whiteandwilliams.com

PennsylvaniaThe Frederick Building

3500 Winchester Road, Suite 200Allentown, PA 18104Phone: 610.435.8414

One Westlakes 1235 Westlakes Drive, Suite 310

Berwyn, PA 19312Phone: 610.251.0466

1800 One Liberty PlacePhiladelphia, PA 19103Phone: 215.864.7000

The Frick Building437 Grant Street, Suite 1001

Pittsburgh, PA 15219Phone: 412.566.3520

New JerseyLibertyView

457 Haddonfield Road, Suite 400Cherry Hill, NJ 08002Phone: 856.317.3600

The AtriumEast 80 Route 4

Paramus, NJ 07652Phone: 201.368.7200

Delaware824 N. Market Street, Suite 902

Wilmington, DE 19899Phone: 302.654.0424

New YorkOne Penn Plaza

250 W. 34th Street, Suite 4110New York, NY 10119Phone: 212.244.9500

This newsletter is a periodic publication of White and Williams LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have. For further information about these contents, please contact the Editor.

Editor: William D. Kennedy 610.240.4703 kennedyw@whiteandwilliams.com

Page 11

Delaware insuranCe law

Delaware Extends the Duty to Provide Notice of Limitation Periods to Property Insurersby John D. Balaguer and Timothy S. Martin

Casualty insurers in Delaware have long been required to provide notice to their insureds of the applicable limitations period for claims. 18 Del. C. § 3914. In 2008, Delaware extended this burden to property insurers. A new statute, 18 Del. C. § 4129 requires property insurers to provide “prompt and timely” written notice to policyholders of the applicable limitation period for filing an action for damages under any property insurance contract. The new law applies to statutes of limitation as well as any contractual period of limitation established in the insurance policy.

The requirements of the new law governing property insurance contracts will likely be interpreted consistently with the existing statute covering casualty insurance contracts. Under the section applicable to casualty insurers, a claimant has the initial burden to place the casualty insurance carrier on notice of a potential claim. Delaware courts interpreting section 3914 have held, however, that even constructive notice of a claim may trigger the carrier’s statutory obligation to provide notice of the applicable limitations period. If a casualty insurer fails to comply with section 3914, Delaware courts have held that the insurer will not be able to raise as a defense that the claim is time-barred. Thus, where the claimant complies with the requirements of section 3914 and the casualty insurance carrier does not, the statute or contractual period of limitation is tolled.

Due to the similarities between sections 4129 and 3914, property insurers are cautioned that failure to provide prompt and timely notice will likely also preclude them from asserting applicable statutory or contractual periods of limitation. The new law also prohibits a property insurance contract from shortening the contractual period of limitations to any period less than one year from the date of the denial of the claim by the insurer. The new law applies to property insurance policies issued or renewed on or after January 1, 2008. Policies with terms inconsistent with the new law will not be nullified, but rather they will be construed in a manner consistent with the new statute.

If you would like to discuss these changes, or have any other questions related to property insurance coverage in Delaware, please contact John Balaguer or Tim Martin in our Delaware office.

John Balaguer is the Managing Partner of the Firm’s Wilmington office.

He can be reached at 302.467.4501 or balaguerj@whiteandwilliams.com.

Tim Martin focuses his practice on complex civil litigation,

including construction litigation and insurance coverage matters.

He can be reached at 302.467.4509 or martint@whiteandwilliams.com.

White and Williams LLPPage 12

covered under the subject policy (e.g., where a global warming claim seeks only injunctive relief, restitution or the imposition of statutory penalties, most courts hold that there is no duty to defend or indemnify such claims). Other issues include the scope of the insurer’s duty to defend such claims and whether a particular general liability policy is triggered by the subject claim.

With respect to the trigger issue, general liability policies are typically occurrence-based policies that provide indemnification and defense costs if the “bodily injury” or “property damage” took place during the term of the policy. When the injury took place is determined by the applicable trigger-of-coverage theory. Because global warming has developed over decades, similar to pollution claims and asbestos claims, the applicable trigger could have significant consequences as to the number of policies and amount of coverage that might be available with regard to a particular claim, and will undoubtedly create significant debate, not only between policyholders and their insurers, but also between the insurers. A trigger theory that could apply is the exposure theory (which would trigger only those policies on the risk when the property was first exposed to the damage-causing condition). Another trigger could be the injury-in-fact theory, which holds that insurance obligations arise when injury can be shown to have occurred, in retrospect, during a policy period. Some litigants will rely on the manifestation theory, which triggers those policies in effect at the time the property damage is known or when it should have been known. Others will try to pull the triple-trigger (or continuous trigger), which

activates all policies from the date of first exposure until the date of manifestation. The choice of trigger theories can affect the number of policies that may be required to respond (and consequently, the amount of insurance that might be available to cover a particular claims), so the determination of which trigger theory applies will be significant.

In addition to issues under commercial general liability policies, industry observers anticipate that questions will also arise under directors and officers (D&O) liability insurance policies. These policies, and questions relating thereto, will likely arise as a result of possible securities class action lawsuits alleging that an officer or director failed to adequately report global warming claims with the U.S. Securities and Exchange Commission, or in the event a shareholder derivative claim is filed against an officer or director alleging mismanagement based on the failure to take prudent action with respect to reducing greenhouse gas emissions. The significant question that will arise under D&O policies will be whether the pollution exclusion extends to misrepresentation and mismanagement type claims. The courts have reached different conclusions in this regard when dealing with traditional environmental claims.

For example, in National Union Fire Ins. Co. of Pittsburgh v. US Liquids, Inc., 88 Fed. App. 725 (5th Cir. 2004), the United States Court of Appeals for the Fifth Circuit held that the pollution exclusion applied to an underlying claim by a shareholder against the insured that the insured improperly concealed polluting activities in its reports because, “the factual allegations of the securities and derivative suits bore more than an incidental relationship to the broad polluting conduct excluded in the policy and that ‘but for’ such illegal activities those underlying claims would not exist.” Id. at 731. Conversely, in Owens Corning v. National Union Fire Ins. Co. of Pittsburgh, 1998 U.S. App. LEXIS 26233 (6th Cir. Oct. 13, 1998), the court held that an asbestos exclusion in a D&O policy did not exclude claims regarding misleading statements about the company’s exposure to asbestos claims. Cases like these are just the start of the debate under directors and officers policies.

The Steadfast declaratory judgment action is one of the first insurance coverage actions arising out of global warming claims. Insureds and insurers are watching closely to determine whether the case signals a new era of coverage litigation between policyholders and their insurers (similar to asbestos and traditional environmental claims).

Greg Capps, of counsel in the Commercial Litigation

Department, focuses his practice on insurance

coverage litigation. You can reach Greg at

215.864.7182 or cappsg@whiteandwilliams.com.

The Heat is On (Continued from page 2)

Page 13

A ruling by the Pennsylvania Supreme Court finally has ended an epic products liability case in favor of Monsanto Company. The Court affirmed a jury’s defense verdict, thereby reaffirming that any alleged defectiveness of a product must not be evaluated in the abstract (where any product potentially may be harmful). Instead, the jury must focus on whether the product is safe when used as intended. The decision is the second straight Pennsylvania Supreme Court victory for Monsanto, represented by White and Williams LLP’s Thomas M. Goutman.

In the first appeal (“Marathon Environmental Suit May Finally End After Defense Wins Second High-Stakes Jury Trial.” White and Williams Executive Newsletter. Summer 2007: 1-2.), the Court reversed a $60 million judgment for the plaintiff; the Court ruled that the accidental incineration of a product in a building fire could not be “intended use” under strict products liability.

The lawsuit began in 1990 as an asbestos abatement action by various Pennsylvania government agencies against U.S. Mineral Products Company, the manufacturer of sprayed, asbestos insulation used in the mid-1960’s construction of the 12-story Transportation & Safety building (the home of several state government agencies in Harrisburg). In 1994, a fire erupted in the building. A post-fire investigation found polychlorinated biphenyls (PCBs) on building surfaces, as well as in various building products (such as caulk and adhesive). In 1997, the plaintiffs joined Monsanto, which manufactured PCBs, as well as a number of building product manufacturers which had incorporated PCBs into their products. In 1998, the Commonwealth demolished the building and erected a new office tower in its place.

With the asbestos defendant near bankruptcy, plaintiffs set about transforming what had been for years an asbestos case into a PCB case, theorizing that PCBs volitalized from PCB-containing building products, causing health risks to the building’s occupants, and necessitating the demolition and replacement of the building and its contents. The damages claim exceeded $225 million. In May 1999, the first trial began and did not end until August 2000, making it the longest jury trial in Pennsylvania history. The Philadelphia jury, after 13 days of deliberation, and two hours after advising the court that it was hopelessly deadlocked, returned a $90 million verdict against Monsanto (later reduced because of a pre-verdict settlement by a co-defendant).

After a six year appeal, the Supreme Court reversed. It held that judgment notwithstanding the verdict should have been awarded on various claims, and a new trial was required as to

others. The Court explained that strict liability is available only for harm that occurs in connection with a product’s “intended use” by an “intended user,” and that the incineration of building materials is not an intended use as a matter of law.

In 2007, on retrial, the jury returned a defense verdict, finding that PCBs were not defective. On appeal, plaintiffs claimed that the defense verdict was against the weight of evidence of harmful health effects allegedly shown in animal and epidemiological studies. Monsanto responded that the plaintiff’s evidence of harmfulness in the abstract did not establish that PCBs, when used as intended in building products, were unsafe.

By affirming the jury’s verdict, the Supreme Court has confirmed that even though all products may be unsafe in certain circumstances, a manufacturer cannot be held strictly liable if the product is safe when used as the manufacturer intended. The Supreme Court’s affirmation of the verdict finally relieves Monsanto of any liability. The case highlights the benefits of persistence, and the benefits of the seamless teamwork between trial and appellate attorneys.

Tom Goutman is Chair of the Products Liability

Practice Group. He headed the White and Williams

team, which represented Monsanto Company on the

two trials and two appeals. Tom can be reached at

215.864.7057 or goutmant@whiteandwilliams.com.

ProDuCts liaBility: intenDeD uses

Marathon Products Case EndsSupreme Court Affirms Verdict for Monsanto Company by Thomas M. Goutman

The Transportation & Safety building in Harrisburg before it was demolished in 1998 .

White and Williams LLPPage 14

White and Williams LLP1800 One Liberty Place

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paidBellmawr, NJpermit No. 64

Virginia Barton Wallace AwardNearly 300 women leaders in law and business,

including state and federal judges, gathered to honor Emmy-Award winning journalist and radio personality Cokie Roberts with the Virginia Barton Wallace Award at the Rittenhouse Hotel on October 8, 2008.

The award, established by White and Williams, honors Virginia (“Ginny”) Barton Wallace, the Firm’s first female partner, and one of the first women to become a partner in a major law firm in Philadelphia. We annually present the award to a professional woman who embodies the same qualities that Ginny possessed — leadership, drive, exemplary work ethic, and an ability to inspire other women to succeed.

In addition to the award, White and Williams donates $10,000 to a charity of the honoree’s choice. Roberts chose Stone Ridge School for the Sacred Heart, an all-girl’s school in Bethesda, Maryland, because she believes, “Stone Ridge captures the same spirit of Virginia ‘Ginny’ Wallace.”

This year’s event included a two-course breakfast, followed by an award ceremony. JoAnn Epps, Dean of Temple University’s Beasley School of Law, provided a thoughtful snapshot of the state of women in the law. Roberts then shared an inspiring account of her career with National Public Radio, ABC News, and many other media. She also signed copies of her latest work, Ladies of Liberty: The Women Who Shaped our Nation.

Past recipients of the Virginia Barton Wallace Award include Pulitzer Prize-winning author and historian Doris Kearns Goodwin (2007) and Philadelphia news anchor Renee Chenault-Fattah (2006).

Members of the Virginia Barton Wallace Award Committee (From L to R) Eileen Monaghan, Jennifer Wojciechowski, Elizabeth Venditta, Michelle Coburn, Nancy Conrad, Judith Sullivan, Gale White, Mary Dixon, and Rosemary Schnall with the 2008 honoree, Cokie Roberts (center) .