September 18, 2014

Inside Business Law (Sept. 2014)

The Business Law Section Annual Meeting 

The Business Law Section held its first Business Law Section Annual Meeting at the Hyatt Regency Chicago on September 10–13, 2014. The Annual Meeting was a huge success. Highlights for the event include:

  • More than 1,560 Section members registered for the Business Law Section Annual Meeting.
  • 69 CLE programs were presented by practice-area experts, including the first ever in-person In The Know program. In The Know is a monthly CLE series sponsored by the Business Law Section and is free of charge to all Section members. The September program was titled “Ethics Basics for Business Lawyers” and was sponsored by the Professional Responsibility Committee.
  • 212 committee and subcommittee meetings were held.
  • 527 speakers presented at the Annual Meeting.
  • There were a number of special and well-attended events, including the Section dinner in the Modern Wing of the Art Institute of Chicago, followed by a “suite crawl” with themed suites. 

Selected Program Materials 

The program materials for all CLE programs are available on the Section website and can be accessed here

Some of the excellent programs presented at the Section Annual Meeting are listed below and the program materials can be accessed by clicking on the titles. 

Update on Electronic Contracting Best Practices” was presented by the Consumer Financial Services Committee and co-sponsored by the Cyberspace Law Committee, and was moderated by Mark J. Furletti, Philadelphia, PA. The speakers included Malini Mithal, Assistant Director of Financial Practices – Federal Trade Commission, Washington, DC, and Christine Poulon, Silver Spring, MD. The process by which consumers enter into online contracts is becoming increasingly streamlined. Rare is the case where a consumer is forced to scroll through an agreement before becoming bound to it. The proliferation of mobile browsers has made online contracting even more challenging. The panel examined recent case law on electronic contracting, evolving industry standards, and electronic contracting best practices. 

Data Privacy Trends – Reading the Regulatory Tea Leaves From the White House, the CFPB, and Others” was presented by the Consumer Financial Services Committee, and was moderated by Peter Gilbert, Richmond, VA. The panelists included Doug Smith, Director and Assistant General Counsel of Capital One, Richmond, VA, and David Stein, Director of the Promontory Financial Group, Washington DC. The panelists explored trends in privacy regulation through a discussion of the Executive Office Report on Big Data issued May 2014, the CFPB Notice of Proposed Rulemaking on GLBA Annual Notice Requirements, in addition to proposed legislation, a white paper, and reports from the FTC Department of Commerce, Executive Office, and others which appear to set the stage for a new privacy regulatory landscape. 

The 2014 Annual Review of Developments in Mergers and Acquisitions” was presented by the Mergers and Acquisitions Committee, chaired and moderated by Eric Klinger, Wilmington, DE. The panel included Bradley Aronstam, Wilmington, DE, Beth Flaming, Chicago, IL, John Hughes, Washington, DC, Joni Jacobsen, Chicago, IL, and Thomas Mullen, Wilmington, DE. The program reviewed major developments in M&A law over the past year. Rather than reviewing cases on an individual basis, the panel discussed three broad topics: (1) banker engagement, (2) sales of controlled companies, and (3) M&A litigation, and how M&A practice regarding those three topics has developed in the past year. 

Be Careful What You Wish For! Issues for ABL Commitment Letters in Acquisition Financing” was presented the Commercial Finance Committee and co-sponsored by the Uniform Commercial Code Committee, chaired by David Morse, Chicago, IL, and moderated by Kristi Richards. The panel included David Dranoff, Chicago, IL, and Heather Sonnenberg, Philadelphia, PA. As leveraged finance and asset based lending markets converge, asset-based lenders face increasing challenges to keep up with the expectations of sponsors and other borrowers, as well as understanding the issues and risks that lenders are often expected to take in a complex acquisition financing. The panels discussed such matters as “SunGard,” MAC conditions, Xerox provisions, diligence conditions, solvency conditions, the use of flex, and the impact of the syndication process in putting together the commitment letter for a transaction. 

A Sustainability Disclosure Debate: The Future of Reporting, Transparency, and Multiple Forms of Capital” was presented by the Corporate Governance Committee and co-sponsored by the Corporate Compliance Committee, the Corporate Social Responsibility Task Force, the Environmental Committee, and the Federal Regulation of Securities Committee. The program was co-chaired by Nancy Cleveland, Devon, PA, and Katayun Jaffari, Philadelphia, PA. The speakers included Nancy Israel, Boston, MA, David Lynn, Washington, DC, Wendy Mahling, Minneapolis, MN, Douglas Park, San Francisco, CA, and Kathrin Winkler, Hopkinton, MA. Sustainability is a megatrend: companies face many global, national, and local challenges to incorporating sustainability practices into management and operations. The list of issues related to social, environmental, and economic capital is long. This program took a deep dive into the range of sustainability issues, how publicly traded companies are managing sustainability reporting and disclosure, and the legal implications of this fast-evolving area. Panelists explored existing and emerging national and global sustainability reporting and disclosure standards, such as the GRI Reporting Framework and SASB’s new disclosure standards, and engaged in a lively debate about the future of sustainability disclosure, whether mandatory or voluntary. 

Diverse Attorneys, Women, and Millennials: Successful Paths to Leadership” was presented by the Diversity and Inclusion Committee and co-sponsored by the Corporate Counsel Committee, the Corporate Governance Committee, and the Mergers and Acquisitions Committee. The program was co-chaired by Sylvia Chin, New York, NY, and Christine Young, Tucson, AZ, co-moderated by David Morrow, Washington, DC, and Jenna Nand, Seattle, WA, and the speakers included Jane Pigott, Chicago, IL, Stuart Pixley, Redmond, WA, Lauren Rikleen, Boston, MA, and Helen Wan, New York, NY. This program explored ways to create an inclusive environment to encourage all attorneys to succeed. The panelists discussed what tools can best assist diverse lawyers in reaching their professional goals. Topics included how to foster collaborative efforts among all attorneys including millennials, attorneys of color, women, LGBT attorneys, and attorneys with disabilities, to achieve win-win results. 

Exploration, Transportation, and Exportation of Liquefied Natural Gas: Current Challenges and Potential Responses” was presented and sponsored by the Energy Business Committee and co-sponsored by the Project Finance and Development Committee. The program was co-chaired by Erlyne Nazaire, New York, NY, and Shon Ramey, Lake Oswego, OR, and was moderated by Arthur Cohen, Washington, DC. The speakers included Jay Costan, Washington, DC, Stephen Davis, Houston, TX, Christopher Kulander, Lubbock, TX and Cynthia Stroman, Washington, DC. The evolving state of liquefied natural gas exploration and recovery is creating opportunities and challenges for energy clients and their lawyers. This panel explored the current state, existing and future challenges, and the geopolitical landscape of global LNG. 

The Future of Claims Trading: What You Don’t Know Can Hurt You and Your Client” was sponsored by the Business Bankruptcy Committee and co-sponsored by the Commercial Finance Committee and the Uniform Commercial Code Committee. The program was chaired and moderated by James Patton, Wilmington, DE, and the speakers included Susan Balaschak, New York, NY, Kevin Eckhardt, Charlotte, NC, Thomas Moers Mayer, New York, NY, Norman Powell, Wilmington, DE, and Vincent Roldan, New York, NY. Recent decisions in KB Toys and Fisker have called into question, and stimulated intense debate about, the nature and extent of the risks facing a purchaser of a claim in bankruptcy. Does the purchaser of a secured claim have the right at auction of its collateral to credit bid the full value of the claim or just what it paid for the claim? How does the UCC inform the answer to these questions, and why do the courts seem to disregard the UCC? The panel discussed these and many related topics vital to buyer and sellers of claims in today’s marketplace.