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Drivers are absolutely, positively employees In a decision expected to spur wage-and-hour suits in the courier industry, a judge recently ordered FedEx Corp. to pay $5.3 million to a group of drivers he found had been improperly classified as independent contractors. He also ordered FedEx to end the practice, instructing it to provide drivers with a copy of his order. Los Angeles County Superior Court Judge Howard Schwab said FedEx had violated California law by classifying all of its single-route drivers as independent contractors and forcing them to incur expenses that the company should have covered, including paying for fuel, oil, tires, repairs and liability insurance. Estrada v. FedEx, No. BC 2110130. Retardation defined by Pa. court in capital cases The Pennsylvania Supreme Court announced standards last week for evaluating in collateral proceedings whether a capital defendant is mentally retarded and, thus, ineligible for the death penalty. The ruling in Commonwealth v. Miller relies on definitions of mental retardation from the American Association of Mental Retardation and the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. The court declined to adopt “a cutoff IQ score for determining mental retardation.” Home Depot slammed by class action over fee A new class action filed recently in Florida alleges Home Depot automatically adds a 10% charge to all rental equipment to cover possible damage to tools without telling customers that the charge is optional. The suit seeks class action status for the estimated thousands of customers in Florida who rented equipment from Home Depot during the last five years. It claims that Home Depot is violating Florida’s Deceptive and Unfair Trade Practices Act. The suit was filed by Weston, Fla., lawyer Lawrence Klitzman and Chicago lawyer Jonah Orlofsky. On Dec. 20, Home Depot petitioned to remove the suit to U.S. district court in Miami. Home Depot’s defense counsel, Kansas City, Mo.-based Shook, Hardy & Bacon’s Miami office, did not return calls for comment. A Home Depot official said the company does not comment on pending litigation. Gold Coast Racing Inc. v. The Home Depot USA Inc., No. 05-61931. Burns & Levinson links with Perkins Smith Boston’s legal landscape will further consolidate as Perkins Smith & Cohen, including members of its science and technology group, will join Burns & Levinson. The addition of the Perkins Smith lawyers, who will make the move by mid-2006, will raise Burns & Levinson’s head count from about 100 to 140 attorneys. Boston-based Burns & Levinson specializes in business law, finance, business litigation, real estate, bankruptcy, intellectual property and private client representation. It has four offices in New England as well as one in Washington, and plans to open an office in Shanghai, China, in early 2006. Burns & Levinson managing partner David Rosenblatt said that what attracted his firm to Boston’s Perkins Smith is that “they’re a very strong science and technology practice with a very good intellectual property group.” Clifford Chance reforms ‘lockstep’ pay system Clifford Chance partners have voted to reform the 2,500-lawyer firm’s lockstep compensation system to better account for differences in partner pay across geographic markets. The London-based firm, whose lockstep system currently allocates 40 compensation units to its most junior partners and 100 to its most senior partners, will branch the lockstep into three “ladders.” The second ladder will continue to mirror the current firmwide lockstep and be the default system for the firm. But the new system will permit all firm offices in a single country to opt into either the first or third ladders by majority vote. The first ladder, where compensation will begin at 28 units and top out at 70, is aimed at developing economies where legal fees are lower. The third ladder is intended for markets, chiefly the United States, where the current lockstep is regarded as inadequate to recruit and retain talent. The third ladder of the lockstep would also start at 40 units but would permit partners who meet certain criteria in terms of their contribution to the firm to be awarded either 125 units or 150 units.

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