BLT: April 2014

This article addresses a corporate governance arrangement under which the skill set of the board of directors is supplemented by individuals who are appointed to serve in an observational capacity. It sets forth some of the key issues that parties documenting board observer arrangements should consider.

This article is intended to provide insights and tools that practitioners can use to advise their clients who may currently use advisors or may be considering using them.

Practitioners have been looking forward to a day when court decisions or administrative rulings will have answered some of the outstanding questions about Series LLCs. Thus, it was disappointing when the Fifth Circuit Court of Appeals passed up an opportunity to bring clarity to certain questions and may also have given incorrect guidance for the district court to follow on remand.

In Law v. Siegel, the U.S. Supreme Court clarified the limits on a court’s equitable powers under Section 105 of the Bankruptcy Code. The Court, in denying a bankruptcy trustee’s request to surcharge a debtor’s exemptions to pay the trustee’s costs for uncovering the debtor’s wrongdoing, held that a court can never use its equitable powers to contravene a specific Bankruptcy Code mandate.

On April 4, 2014, the United States Department of Justice’s Antitrust Division announced the first extradition of a foreign national to the United States to stand trial for alleged criminal antitrust law violations. He will now face charges under the Sherman Act for allegedly participating in an international cartel involving sales of marine hoses.

A string of recent Delaware decisions demonstrates that the fiduciary insider trading claim – known as a “Brophy” claim – is anything but antiquated and warrants attention by not only traditional corporate insiders (i.e., directors and officers), but also significant stockholders with board representation or observation rights.

What's the ideal work experience to become the Director of the SEC's Division of Corporation Finance? Easy. Keith Higgins’ resume: 30 years as a corporate and securities lawyer, over 50 IPOs, an abundance of mergers and acquisition deals. After all, Higgins was called the dean of Boston lawyers in IPOs and the securities area.

The Business Law Section held its 2014 Spring Meeting in Los Angeles, California, from April 10–12. Numerous committees and subcommittees within the Section held productive meetings to discuss current and future issues, programs, and topics, and to update their members on emerging trends. And, as always, Section-members presented a plethora of high-quality, engaging CLE programs. The materials for those programs are available through the Business Law Section's website. A few of the programs are highlighted in this month's “Inside Business Law.”



Nominations Sought for Section Leadership Positions

Do you know anyone who has what it takes to be a good Section leader? The Nominating Committee of the Section needs your recommendations for leadership positions for the 2017-2018 association year. Nominees will be selected for: Chair-elect (who automatically assumes the position of chair the following year); Secretary (who automatically assumes the position of vice chair the following year); Content Officer; two Section Delegates to the ABA House of Delegates; and five additional Council members for a four-year term expiring in 2021. The Nominating Committee will take into account the following principles in making its selections. It will: select nominees who have been substantial and active contributors to the Section; seek geographic diversity in the leadership of the Section; strive for representation from a broad cross-section of the areas of law represented in the Section; and seek to draw leaders from a broad cross-section of the various sectors of practice, including corporate law departments, government, academia and private law firms; and actively recruit nominees that reflect the diversity of the Section. Please send your nominations by email to susan.tobias@americanbar.org no later than November 18.

Question: Between November 2, 2015 and November 4, 2015, Harris Poll conducted an online survey of 2,017 adults ages 18 and older on behalf of NerdWallet, Inc. to understand U.S. consumers’ credit card payment habits and feelings around different types of debt. The results of this study were published in the 2015 American Household Credit Card Debt Study. According to the 2015 American Household Credit Card Debt Study, what percentage of U.S. adults would be more embarrassed to tell others about credit card debt than any other type of debt?
A. 10%
B. 35%
C. 55%
D. 90%

Question: From the late 1600s to the early 1800s, “debtors’ prisons” were commonplace with many cities and states operating brick-and-mortar detention facilities that were designed for incarcerating individuals who were unable or unwilling to pay their debts. Imprisonment for indebtedness was so commonplace that two signatories of the Declaration of Independence were jailed for failure to pay their debts. Can you name those two signatories?

The November issue of Business Law Today will focus on Nonprofits. Articles will range from the “Delaware Advantage” to nonprofit organizations needing nonprofit lawyers. In addition, other features include keeping pace with disruptive technological change, insurance bad faith recoveries, and constitutional issues in granting Americans a “Right to Dispute.”

Do you have a great idea for a BLT article? Would you like to see more of a featured column? Let us know how we can make Business Law Today the best resource for you and your clients. We welcome any suggestions. Please send us your feedback here.

Business Law Section Fall Meeting
November 18-19, 2016
Washington, DC

Business Law Section Spring Meeting
April 6-8, 2017
New Orleans, LA

Miscellaneous IT Related Legal News (MIRLN) 25 September - 15 October 2016 (v19.14)

BLT is a web-based publication drawing upon the best of the Section's resources, including featured articles and other information from around the Section. Stay informed on the latest business law practice news and information that will benefit you and your clients.