April 22, 2014

Inside Business Law (Apr. 2014)

Business Law Section Spring Meeting 

The Business Law Section held its 2014 Spring Meeting in Los Angeles, California, from April 10–12. The Section dinner at Universal Studios was an enormous hit, as was the Diversity Networking Reception. Judge Jean FitzSimon received the Jean Allard Glass Cutter Award at the Section luncheon. Numerous committees and subcommittees within the Section held productive working and organizational meetings. The Young Lawyers Committee presented another engaging and informative iteration of the Business Law Institute, a series of CLE programs focusing on the information that young business lawyers need to succeed. Numerous other committees within the Section presented fantastic CLE programs, all of which are available through the Business Law Section’s website and a few of which are highlighted below. 

Corporate Governance Issues for Insolvent Entities: 

Two separate committees presented CLE programs addressing the legal issues and trends related to the need for and use of independent directors for troubled companies. 

Trouble in Portfolio Paradise: Governance and Board Liability Issues of Financially Distressed Portfolio Companies 

Rolin Bissell and J. William Boone co-moderated “Trouble in Portfolio Paradise: Governance and Board Liability Issues of Financially Distressed Portfolio Companies,” a panel consisting of the Honorable Donald F. Parsons, Jr., the Honorable Elizabeth S. Stong, Joe Meeks, and Amit Patel, with program co-chairs K. Tyler O'Connell and Brett Amron. The panel discussed the conflicts of interest facing corporate boards as their corporations become financially troubled and then insolvent. Both judges on the panel emphasized the importance of independent and disinterested fiduciaries and advisors for corporations involved in actions before the Bankruptcy Court or the Delaware Court of Chancery. The panel was presented by the Corporate Governance Committee under the auspices of the Governance Issues of Distressed Companies Task Force, and was co-sponsored by the Business Bankruptcy Committee. 

The Appointment of Independent Directors on the Eve of Bankruptcy: Why the Growing Trend 

The Business Bankruptcy Committee presented “The Appointment of Independent Director on the Eve of Bankruptcy: Why the Growing Trend?,” a panel discussing the corporate governance issues with respect to struggling companies and a growing trend of such companies appointing independent directors to navigate these difficult situations. Regina Stango Kelbon moderated the panel of speakers former Chief Justice Myron T. Steele, Keith Maib, Mary E. McCutcheon, and Martin A. Sosland, which was co-chaired by Bruce Borrus, Judith Ross, David Waguespack, and Rafael X. Zahralddin-Aravena. 

Information Security Issues for Lawyers 

Another hot topic at the Spring Meeting was data management and security. Four different committees within the section presented panels on the topic, with co-sponsorships from three additional committees. 

Big Data, Privacy, and Information Security: Legal and Risk Management Issues 

The Banking Law Committee presented and the Consumer Financial Services Committee co-sponsored “Big Data, Privacy, and Information Security: Legal and Risk Management Issues,” a panel moderated by Michael A. Mancusi, with speakers Peter Foster, Jan Neiditz, and Anwesa Paul. The panel discussed the regulatory and other concerns facing institutions handling “big data,” including the need for appropriate governance programs, appropriate meta-data tagging, and a defensible disposal program balancing legal risks with the new value of various data stores. 

Board Portals, Virtual Meetings, and Electronic Records 

John Mark Zeberkiewicz chaired the panel “Board Portals, Virtual Meetings, and Electronic Records,” which included Jack Van Arsdale, Erik L. Kantz, K. Tyler O'Connell, and Janine M. Salomone. The Corporate Documents and Process Committee presented and the Corporate Governance and the Cyberspace Law Committees co-sponsored the panel. 

Calling All Toasters: Risk Management for the Internet of Things 

Calling All Toasters: Risk Management for the Internet of Things,” presented by the Cyberspace Law Committee, raised and discussed the problems created by the emerging “Internet of things,” including the privacy, security, contract formation, and potential for tort liability arising when formerly unconnected devices begin collecting, processing, and managing data. Richard Balough moderated the panel of Diane Burke and Gail Slaughter, which was co-chaired by Ted Claypoole. 

Cybersecurity and Data Breaches in Health Law Facilities: Crisis Management for GCs and Outside Counsel 

The Health Law and Life Sciences Committee presented “Cybersecurity and Data Breaches in Health Law Facilities: Crisis Management for GC's and Outside Counsel,” with co-sponsors the Corporate Counsel Committee and the Cyberspace Law Committee. Konrad L. Trope moderated the panel, consisting of James Spertus, Lillie Werner, and Ken Yood, for a spirited discussion of the legal and regulatory enforcement consequences of data breaches and cybersecurity lapses by health care providers. The panel also outlined practical steps that can be taken to help manage this immense and growing risk. 

Crisis Management 

Six committees also collaborated to present two CLE programs addressing the roles, concerns, and best practices of attorneys helping clients manage high profile crises. 

The Court of Public Opinion: Best Practices for Attorneys in High Profile and Crisis Situations 

The Middle Market and Small Business Committee presented “The Court of Public Opinion: Best Practices for Attorneys in High Profile and Crisis Situations,” which was co-sponsored by the Business and Corporate Litigation, Corporate Counsel, and Intellectual Property Committees. The panel explored the best practices for business lawyers with clients involved in a high profile litigation or business transaction or a crisis such as a product recall or criminal investigation. Thomas J. Walsh, Jr., chaired the panel, consisting of Andrew M. Apfelberg, Jim McCarthy, Aaron Moss, Sloane S. Perras, and Christopher Riley. 

Scandal Scarred: Managing Your Client Through a Political or Government Scandal 

Amy Kellogg chaired and moderated the program “Scandal Scarred: Managing Your Clients Through a Political or Government Scandal,” with panelists Jonathan Bing, Barry McLoughlin, Laura Peck, and Jennie Skelton. The panel discussed the importance of the relationship between a client's lawyer and media consultant during a scandal, the importance of confronting a scandal head on, how a scandal can affect what a client can expect to accomplish, and how to best navigate a scandal from a legal perspective. The program was presented by the Government Affairs Practice Committee and co-sponsored by the Business and Corporate Litigation and Career and Practice Developments Committees. 

Reviews of Recent Developments 

In addition to many CLEs targeted to specific topics, many committees presented CLEs providing general annual updates on the recent developments in their areas of the law. The materials from each of these programs are available through the Business Law Section website. 

The 2014 Annual Review of Developments in Business and Corporate Litigation”; presented by the Business and Corporate Litigation Committee, co-sponsored by the Intellectual Property Committee; moderator Bret C. Cohen; speakers Melanie Emmons Damian, Jay A. Dubow, Danielle Gibbs, Bradford K. Newman, Mark Trachtenberg, Peter Valori, and Robert Wittee; materials coordinator Kyle Crawford. 

32nd Annual Review of Developments in Business Financing”; presented by the Business Financing Committee; moderator David C. Lee; speakers Michale J. Halloran, Denis T. Rice, Andrew D. Thorpe, and Annemarie Tierney. 

Commercial Law Developments 2013–2014”; presented by the Commercial Finance Committee, co-sponsored by the Uniform Commercial Code Committee, the American College of Commercial Finance Lawyers, and the Association of Commercial Finance Attorneys; co-chairs and speakers Teresa Wilton Harmon and Steven O. Weise; materials coordinator Susan R. Goldfarb. 

LLC Case Law Update 2013–2014”; presented by the LLCs Partnerships and Unincorporated Entities Committee; moderator Elizabeth S. Miller; speakers Louis G. Hering and Gerald V. Niesar. 

Planes, Trains and Automobiles: Current Issues in Transportation Projects”; presented by the Project Finance and Development Committee; co-sponsored by the Business Financing, Commercial Finance, Community Economic Development, Environmental, and International Business Law Committees; moderator Sarah Biser; speakers Arthur Cohen, Deborah Mastin, Joyce L. Miller, and Charles Newman; co-chair Alison R. Manzer; program materials coordinator Ben Elliott. 

Current Securities Law Issues for Small Business”; presented by the State Regulation of Securities Committee; co-sponsored by the Federal Regulation of Securities, Middle Market and Small Business, and Private Equity and Venture Capital Committees; moderator Keith Paul Bishop; speakers David N. Feldman, Jan Lynn Owen, Ann Yvonne Walker, and Gregory C. Yadley. 

Financial Institution Enforcement Trends”; presented by the Banking Law Committee; moderator John M. Geiringer; speakers A.T. Dill III, Bradford S. Fleetwood, Ori Lev, Scott Rebein, and Ellen M. Warwick.