Kaye Scholer

The Group advises clients on carbon trading, Green manufacturing and remanufacturing, Green IT and Green Outsourcing, renewable and alternative energy project development and financing (including tax structuring), cleantech investments, and the creation and enforcement of carbon neutral and sustainability policies. It assists clients in creating carbon, renewable energy and/or cleantech funds, climate change-related litigation, renewable energy tax incentives, and corporate compliance for companies with Green reporting. The Group's multidisciplinary practice has an international scope and is practiced out of Kaye Scholer's offices worldwide. The depth and breadth of the Kaye Scholer lawyers' experience in finance and development, derivatives, intellectual property and IT, tax, emissions markets, and their work in assisting clients in coordinating all of the aspects of their Green business objectives distinguish Kaye Scholer's practice. Kaye Scholer's GreenTech Group has built and carefully maintains a reputation for developing innovative solutions for clients in this rapidly evolving area of law.

Primary Areas of Experience

Carbon Trading and Finance in Regulated and Voluntary Markets

• All forms of transactions involving allowances allocated under the EU Emissions Trading Scheme ("EU ETS"), emissions reductions from Clean Development Mechanism ("CDM") and Joint Implementation ("JI") projects, including drafting and negotiating forward contracts in the primary and secondary markets, options and structured products
• Advice on state and regional regulated regimes in the U.S., including the Northeast's Regional Greenhouse Gas Initiative ("RGGI") and California AB 32 (the California Warming Solutions Act of 2006)
• Advice on existing voluntary carbon markets under voluntary carbon standards such as Voluntary Carbon Standard ("VCS") and Gold Standard, including advice on how such voluntary markets will continue in place and operate in parallel with any Federal "cap and trade" system)

Manufacturing and Remanufacturing

• Life-cycle engineering and diagnostics
• Reverse logistics
• Asset recycle management

Green IT and Green Outsourcing

• Upgrading data centers and corporate IT infrastructures to deploy energy-efficient computer equipment and reduce energy requirements for power and cooling needs
• Law firm leader in adapting and improving the EPA/Green Electronic Council's EPEAT computer equipment energy efficiency certification program, the Department of Energy's Save Energy Now and the Data Center Energy Profiler ("DC Pro") data center energy and methodology use in private sector agreements to save costs and reduce electricity usage and emissions outsourced and internal data centers and corporate IT infrastructure
• Data center re-engineering agreements, including server virtualization and application software optimization projects
• Coordinate data center energy improvements with clients' carbon neutral and sustainability policies

Convergence of GreenTech and Data Management for Energy Efficiency

• Use of real-time data management to achieve energy efficiencies, improve efficiencies and save money without changing the underlying technology
• Advice on energy efficiency portfolio standards

Alternative and Renewable Energy Project Development and Finance

• Wind farm development and financing
• Solar power plants and solar installations development and financing
• Biomass project financing
• Qualifying renewable energy and emissions credits
• Advice on U.S. production tax credits and investment tax incentives

Cleantech

• Joint ventures and capitalization of clean fuel technology companies
• Carbon capture and storage
• Early- and late-stage and private equity investments in GreenTech, cleantech and renewable energy technology companies, including waste-to-energy businesses
• Conducting patent and IP due diligence

Carbon Neutrality, Sustainability and Corporate Social Responsibility ("CSR") Policies

• Creation and implementation of CSR policies
• Determining baseline carbon footprint
• Enforcing policies internally
• Requiring supply-chain compliance (including technology service providers)
• Advising suppliers on complying with divergent customer CSR policies

Fund Formation for GreenTech, CleanTech and Renewable Energy

• Establishment of GreenTech funds and fund management groups
• Structuring global fund investments and local operations in investee jurisdictions
• Advise on carbon credit trades of financial institutions
• Advise management teams and investors
  

Investing in GreenTech, CleanTech and Renewable Energy Technology Companies

• Early-stage investing
• Private equity
• Corporate, IP, and regulatory due diligence

Litigation and Dispute Resolution

• Green technology and IP litigation
• Corporate and securities litigation respecting Green technology transactions and business plans
• Arbitration of Green technology disputes
• Advise regarding claims of "Greenwashing"

Tax and Tax Incentives

• Tax advice regarding production tax credits and business energy tax credits and other incentives
• Taxation of gain from sale of carbon credits under anticipated federal cap and trade system
• Tax-efficient structuring of carbon credit projects and investments
  

Corporate Compliance and Risk Management for Potential Emission Liability

• SOX
• SEC filings
• Accounting issues

Intellectual Property

• Protecting IP of emerging company technologies
• Performing IP due diligence for investments and corporate transactions
• Avoiding the legitimate IP rights of others
• False advertising litigation concerning carbon-neutrality and offset claims

Regulatory Affairs

Representing Foreign Companies in U.S. Business Activities

Green Buildings

• LEED certification issues
• Representing buyers and sellers of technologies used to satisfy LEED and make buildings energy efficient

Representative Transactions

• Drafted and negotiated the first-of-its-kind voluntary emissions reduction transactions involving U.S. voluntary carbon standards and new voluntary registration schemes
• Structured financial products for carbon aggregation and monetization models
• Structured and advised on equity and debt financing for large-scale wind farm projects and solar power plants in the U.S. and other countries
• Extensive representation of wind farm developers, employing U.S. product tax credits to enhance financing
• Negotiated and drafted primary and secondary market document for sale and purchase of emissions credits in both EU ETS CDM markets and voluntary emissions markets
• Formed joint ventures and strategic alliances in the alternative and renewable energy sectors
• Extensive experience representing Green programs in litigation, including, for example, defending the San Pedro Ports Clean Air Action Plan from legal challenges brought by affected industries, which is one of the largest Green litigations brought to date
• Extensive experience developing large infrastructure projects and Green programs that attain Federal and State environmental requirements and energy conservation goals such as NEPA, CEQA, Clean Air Act, SIP and RCRA requirements, including, for example, acting as lead counsel to the San Pedro Ports Clean Air Action Plan for control of long-term environmental impacts from operations at the Ports of Los Angeles and Long Beach and acting as lead counsel to the Los Angeles World Airports in the development of their 20-year Master Plan for air and surface transportation projects
• Substantial working relations with major national U.S. environmental organizations, including working cooperatively with them to secure agreement support for major Green projects
• Representation of State of Maryland in energy conservation program
• Advised on intellectual property aspects of Green technologies
• Advised on data center energy efficiency
• Advised an international financial institution in the formation of a European carbon emissions fund with sovereign and private participants
• Structured one of the first carbon credit related forestry funds in the U.K.
• Advised the management team of pan-European solar photovoltaic park developer on institutional buy-out by major private equity fund
  

Leadership Contributions of Kaye Scholer GreenTech Lawyers

• William A. Tanenbaum founded and chairs PLI's first annual Green Technology legal conference
• Monthly "Tanenbaum on Green Technology" webcasts sponsored by WestLaw and Celesq
• Kaye Scholer Partners will be monthly columnists for Bloomberg Energy and Sustainability publications
• Monthly GreenTech seminars co-sponsored by Kaye Scholer and the New York Chapter of the Association of Corporate Counsel
• William A. Tanenbaum delivered Green IT presentation on U.S. government-developed data and computer technology energy efficiency standards at semi-annual leadership conference of Sourcing Interest Group; presented with the Executive Director of EPEAT, the product certification program
• Kaye Scholer co-sponsored seminar in London with PricewaterhouseCoopers on "Global Emissions Markets and Investing in CDM Projects"
• William A. Tanenbaum delivered Green Outsourcing presentation at PLI's annual outsourcing conference
• Kaye Scholer is a member of an organization formed by IBM to use advanced IT to address problems of water scarcity
• William A. Tanenbaum delivered a presentation covering Green IT at the November 17, 2008 ACI Pharmaceutical Outsourcing conference
• Madeleine M. L. Tan is a frequent speaker at Global Warming and Climate Change conferences
• Madeleine M. L. Tan is a frequent speaker on Carbon Markets and related transactional issues at conferences
• Steven Rosenthal has successfully defended clients in some of the first and largest Green litigation to date.