October 20, 2014

Inside Business Law (Oct. 2014)

Selected Program Materials and Audio from the Business Law Section Annual Meeting

The Business Law Section Annual Meeting, held at the Hyatt Regency Chicago on September 10–13, 2014, included 69 CLE programs. The program materials and the audio recording of those programs can be accessed here

Highlights include the following programs. 

“AVOIDING DISCOVERY AND TRIAL PRACTICE DISASTERS – TALES FROM THE BENCH AND TRENCHES” was presented by the Business and Corporate Litigation Committee. This program illuminated and discussed, in an interactive format, mistakes made in discovery and at trial from the bench’s point of view. It addressed civility and ethical issues confronted during trial and best practices for avoiding disasters in the courtroom. The program was chaired by Daniel R. Formeller, Chicago, IL, and moderated by Paul Masinter, New Orleans, LA. Speakers included Honorable Audrey J.S. Carrion, Baltimore, MD, William D. Johnston, Wilmington, DE, Honorable Clifton Newman, Kingstree, SC, and Arnold A. Pinkston, Irvine, CA.

“CASES DO MATTER: JUDICIAL FORCES SHAPING M&A DEAL TERMS” was presented by the Mergers and Acquisitions Committee, and co-sponsored by the Knowledge Strategy Interest Group of the ABA Law Practice Division This program discussed (1) recent judicial decisions affecting M&A deal terms, such as those interpreting merger agreements or state law applicable to constituent entities, successor liability, or fiduciary duty, (2) some market trends from the 2013 Deal Points Studies, and (3) how law firms can effectively share this kind of information among its lawyers to better serve clients. The program was chaired by Craig Menden, Palo Alto, CA, and speakers included Jack Bostelman, San Francisco, CA, Melissa DiVincenzo, Wilmington, DE, Michael O’Bryan, San Francisco, CA, and Scott Whittaker, New Orleans, LA.

A consortium of committees presented a symposium on alternative dispute resolution in finance transactions. 

“COMMERCIAL DISPUTE SYMPOSIUM PART 1 – TAKE THE FIGHT OUTSIDE! DISPUTE RESOLUTION IN COMMERCIAL FINANCE: PROTECTING THE VALUE OF THE DEAL,” was presented by the Commercial Finance Committee, and co-sponsored by the Business Bankruptcy Committee, the Dispute Resolution Committee, and the Project Finance and Development Committee. What dispute resolution mechanism is best for achieving a resolution of disputes with business deals? What role can the business lawyer continue to play to restore the economics of the deal? This panel addressed the different alternatives and included an in-house lender, borrower’s counsel, and neutral dispute resolution expert. This portion of the symposium was chaired and moderated by Jeremy Friedberg, Baltimore, MD, and speakers included Pamela Corrie, Norwalk, CT, Judith Greenstone Miller, Southfield, MI, and Stuart M. Widman, Chicago, IL.

“COMMERCIAL DISPUTE SYMPOSIUM PART 2 – THE POWER OF DISPUTE REVIEW BOARDS: DRAFTING AND NEGOTIATING PROVISIONS TO USE DISPUTE REVIEW BOARDS & OTHER DISPUTE AVOIDANCE AND RESOLUTION TECHNIQUES,” was presented by the Project Finance and Development Committee, and co-sponsored by the Commercial Finance Committee and the Dispute Resolution Committee. Dispute review boards (DRBs), a dispute resolution process that is part of project administration, are finding increasing favor in the United States as a lower cost, less adversarial manner to manage disputes. DRBs are a creature of contract, and issue, generally, non-binding recommendations. This panel discussed different DRB and other dispute avoidance and resolution techniques, different DRB provisions and alternatives, pros and cons of different alternatives, and provided samples of DRB provisions that have been used with great success nationally and internationally. This portion of the symposium was chaired and moderated by Sarah B. Biser, New York, NY, and speakers included Deborah Bovarnick Mastin, Miami, FL, and Thomas J. Welsh, Meriden, CT.

“COMMERCIAL DISPUTE SYMPOSIUM PART 3 – DISPUTE RESOLUTION AND FINANCE: DID YOU EVEN SEE THE ETHICS ISSUES?” was presented by the Commercial Finance Committee, and co-sponsored by the Dispute Resolution Committee and the Project Finance and Development Committee. Mediation and arbitration can be trickier processes than they may first appear. Various professional and state-based bodies have promulgated rules, statutes, guidelines, canons, and other ethical pronouncements whose application in ADR processes may not always be apparent. This panel posed hypothetical examples of situations that may appear benign on their face, but pose hidden risks for professional error for clients, representatives, and neutrals. This portion of the symposium was chaired and moderated by F. Peter Phillips, Montclair, NJ, and speakers included Sandra C. McCallion, New York, NY, and Stanley Sklar, Northbrook, IL.

“DRAFTING A STRONGER PREFERRED STOCK: RESPONSES TO RECENT CASE LAW DEVELOPMENTS” was presented by the Private Equity and Venture Capital Committee and co-sponsored by the Corporate Documents and Process Committee. In recent years, preferred stockholders have found that rights they believed they had secured are ineffective or unenforceable, largely as a result of gaps in drafting. The panel discussed recent cases addressing the rights of preferred stockholders as a backdrop for exploring best practices in drafting preferred stock instruments. The program was chaired an moderated by John Mark Zeberkiewicz, Wilmington, DE, and speakers included David Gammell Boston, MA, James D. Honaker, Wilmington, DE, and Megan W. Shaner, Norman, OK.

“ETHICS – THE RESPONSIBILITIES AND LIABILITIES OF THE LAWYER IN INTERNATIONAL TRANSACTIONS” was presented by the International Business Law Committee, and co-sponsored by the Mergers and Acquisitions Committee, the Professional Responsibility Committee, the Project Finance and Development Committee, and the White-Collar Crime Committee. This program included an examination of the ethical challenges in understanding and executing instructions when there are practice, political, cultural, and legal differences among jurisdictions (ABA Model Rules 1.1), and addressed considerations in dealing with conflicts and whistle blowing in jurisdictions which may not have been familiar to the audience (ABA Model Rules 1.7 to 1.11). The program was chaired by Alison R. Manzer, Toronto, ON, and the speakers included Franziska Ruf, Montreal, QC, Brian T. Sumner, New York, NY, Roland Trope, New York, NY, and Amy Walsh, New York, NY.

Upcoming In The Know Programs

In the Know programs are remote CLE programs presented by the Business Law Section and presented free of charge to Section members. Registration for two up-coming programs is available now. 

On October 29, 2014; 1:00–2:30 p.m. Eastern (12:00–1:30 p.m. Central), the LLCs, Partnerships, and Unincorporated Entities Committee will present “Drafting of LLC Operating and LP Agreements.” In many transactions, the prospective members and partners have differing negotiation power and conflicting and different business and economic interests which are the nuts and bolts of the deal and not the tax-driven provisions. In this webinar, experienced practitioners will outline the principal business issues and how they affect clients, including governance, control, exit strategies, and dispute resolution. The presenters will discuss how and why they address the issues in their practice from various viewpoints and in various business situations, and will provide sample provisions. Panelists will include Edward L. Wender (Moderator), Baltimore, MD, Frank Ciatto, Washington, DC, Joseph W. Boucher, Madison, WI, and Carmen Fonda, Baltimore, MD.

On November 5, 2014; 1:00–2:30 p.m. Eastern (12:00–1:30 p.m. Central) the Corporate Governance Committee will present “Hot Corporate Governance Issues Facing General Counsel.” General counsel are being called upon to advise their management on matters far beyond the traditional suite of issues. This CLE program will provide an overview of the current landscape of corporate governance issues facing general counsel, including shareholder activism, cybersecurity, executive compensation, the impact of proxy advisory firms, director tenure and qualifications, exclusive forum by-laws, enterprise-wide risk management, compliance, and government enforcement and investigations. We will discuss these issues and the key role general counsel play in developing and implementing strategies to address them. Panelists include Randall Ebner (Moderator), Irving, TX, Robert Bostrom, New Albany, OH, Ellen Grady, Wayne, PA, and Ning Chiu, New York, NY.