July 16, 2015

Inside Business Law

This month, Inside Business Law highlights the In The Know and Business Law Basics webinars to be offered in July and the Section’s Annual Meeting from September 17–19 in Chicago, with links to registration information. Summaries of the articles published in the Summer Edition of The Business Lawyer and several recent Committee newsletters, with links to each, are also included in this issue of Inside Business Law. 

Upcoming Events

In The Know (webinars on hot business law topics) and Business Law Basics (programs focused on the fundamentals of key practice areas) are free CLE webinar series available exclusively to Business Law Section members. A brief description of the next program in each of these series follows: 

In the Know:  “Deal Point Considerations in Venture Backed M&A”
Date: July 9, 2015
Time: 1:00 p.m. to 2:30 p.m. ET
Presented by the Private Equity and Venture Capital Committee

The panelists will discuss their recent experiences representing buyers, sellers, and major stockholders in venture backed exits.

Business Law Basics: “Basics of Delaware Corporate Law”
Date: July 30, 2015
Time: 1:00 p.m. ET
Presented by the Corporate Governance Committee

Section Annual Meeting

The Business Law Section Annual Meeting will be held September 17–19, 2015, in Chicago, Illinois, at the Hyatt Regency Chicago. The Section Annual Meeting provides comprehensive business law programming, including:

  • More than 70 CLE programs prepared and presented by practice-area experts.
  • Many Committee and Subcommittee business meetings, many of which will include up-to-the-minute topical discussions covering the latest business law issues relevant to your practice.
  • Social events – including various receptions and Committee dinners and the Section Lunch and Dinner – to help members build an international network of business law thought leaders and reconnect with old friends.
  • A Young Lawyer Track to help young lawyers and new lawyers to the Section’s Annual Meeting navigate the Meeting’s offerings.

We hope to see you there! 

Summertime Reading 

The Business Lawyer

The Summer Issue of The Business Lawyer, Volume 70, No. 3, was recently published by the Business Law Section. If you have not received your hard copy in the mail, you can access an electronic copy here. The Summer Issue includes the following articles:

  • Documenting the Deal: How Quality Control and Candor Can Improve Boardroom Decision-Making and Reduce the Litigation Target Zone, by Leo E. Strine, Jr. Chief Justice Strine of the Delaware Supreme Court discusses what legal and financial advisors can do to conduct an M&A process in a manner that (1) promotes making better decisions; (2) reduces conflicts of interests and addresses those that exist more effectively; (3) accurately records what happened so that advisors and their clients will be able to recount events in approximately the same way; and (4) as a result, reduces the target zone for plaintiffs’ lawyers.
  • Proceedings of the 2014 Delaware Business Law Forum: Director-Centric Governance in the Golden Age of Shareholder Activism, by Diane Holt Frankle, Holly J. Gregory, Gregory V. Varallo, and Christopher H. Lyons. In October 2014, leading corporate governance practitioners from around the United States convened at the biennial Delaware Business Law Forum, along with current and former jurists of the Delaware Supreme Court and Court of Chancery, as well as academics, representatives of “activist” investors, institutional investors, and public company directors and their counsel, to discuss and debate developing topics in corporate law governance. The participants considered and debated the extent to which corporate governance remains “board-centric,” the extent to which the rise of shareholder activism is changing that paradigm, and what implications such changes may have for the future. This article reports on the key questions discussed at the forum and attempts to summarize the discussion and consensus (if any) reached with respect to these questions.
  • Corporate Bankruptcy Tourists, by Oscar Couwenberg and Stephen J. Lubben. Foreign corporations facing financial distress have a choice: restructure in their home jurisdiction or file for bankruptcy in the United States. Some foreign corporations do file bankruptcy petitions in the United States, but besides the occasional anecdotal account, how frequently this actually happens or what types of foreign firms are apt to file in the United States is almost completely unstudied. American firms that file under Chapter 11 and foreign firms that file under Chapter 15 are the frequent objects of study, but what of the foreign firms that file under Chapters 7 or 11? The authors address this gap in the literature by constructing a database of foreign corporate debtors. By analyzing this new dataset, the authors conclude that the United States Bankruptcy Code is used by foreign debtors in a way that is diametrically opposed to most of the extant thinking on transnational insolvency. In particular, they found that foreign debtors use the American bankruptcy system to impose a global discharge on assets, without the cooperation of any jurisdiction beyond the United States, in contrast with the efforts of UNCITRAL to facilitate cross-border cooperation among jurisdictions.
  • What’s So Bad About Insider Trading Law?, by Peter J. Henning. The author notes that the law of insider trading has been called everything from a “theoretical mess” to “astonishingly dysfunctional,” with calls for change from Congress and the Securities and Exchange Commission to clarify the scope of the prohibition. The author explores whether the law is really so bad, as the elements are now well established, despite some gray areas around the edges, and Congress and the general public appear to have embraced insider trading as something clearly wrongful. If the law needs to be changed, the author discusses the most likely ways in which it might be changed.
  • The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act, by Kenneth C. Kettering. In 2014, the National Conference of Commissioners on Uniform State Laws approved a set of amendments to the Uniform Fraudulent Transfer Act. Among other changes, the amendments renamed the act the Uniform Voidable Transactions Act. In this article, the reporter for the Committee that drafted the amendments describes the amendment project and discusses the changes that were made to the act.
  • The Summer Issue also includes a Survey – Federal Regulation of Securities, by the Subcommittee on Annual Review, Committee on Federal Regulation of Securities, ABA Business Law Section. The survey covers significant developments in federal securities law and regulation during 2014, and is divided into three sections: regulatory actions, accounting statements, and case law developments. The survey is written from the perspective of practitioners in the fields of corporate and securities law, with an emphasis on significant developments under the federal securities laws relating to companies, shareholders, and their respective counsel. The survey is limited to those developments that are of greatest interest to a wide range of practitioners. 

Recent Committee Newsletters

A number of Committees have recently published newsletters, including the following:

The Spring 2015 issue of In Our Opinion, the newsletter of the Legal Opinions Committee, contains the following articles:

  • Reports on the meetings of the Legal Opinions Committee, by James F. Fotenos, and the Law and Accounting Committee, by Randall D. McClanahan, at the Section’s Spring Meeting in San Francisco in April 2015.
  • Two articles, one by John K. Villa and Craig D. Singer, and another by Stanley Keller, discussing the potential implications for litigation concerning closing opinions of the U.S. Supreme Court’s Omnicare decision. 

This issue of In Our Opinion can be found here

The Commercial Financial Services and Uniform Commercial Code Committees’ joint Commercial Law Newsletter (April 7, 2015) features the following articles:

  • Revised Article 1 Enactments, by Scott J. Burnham
  • The Perils of UCC-3 Terminations, by Whang-Ki Josh Jang, Shawn Bagdasarian, and Steven E. Economou
  • Secured Lending to Series of LLCs: Beware What You Do Not (and Cannot) Know – Part I, by Norman M. Powell
  • Absolute and Unconditional Guaranties under New York Law, by Glen F. Strong
  • UCC Article 9 Update: 2015 Legislation and Administrative Rules, by Paul Hodnefield 

The April 2015 issue of Commercial Law Newsletter can be found here

The Corporate Governance Committee’s In Sight newsletter (April 2015) provides updates on recent developments in the following areas:

  • Securities and Exchange Commission recent rules, regulations, and enforcement actions
  • Proxy access and voting matters
  • Institutional Shareholder Services’ 2015 U.S. Compensation Policies FAQs on Executive Compensation
  • Delaware Law Developments – the 2015 proposed amendments to the DGCL and fee-shifting bylaw provisions for Delaware corporations
  • Litigation developments – First Circuit Defers to Conclusions of Independent Committee in Rejecting Derivative Claims
  • International Developments—Recent actions of the Ontario Securities Commission and the Canadian Securities Administrators 

The April 2015 issue of The LLC & Partnership Reporter, the newsletter of the LLCs, Partnerships and Unincorporated Entities Committee, includes the following articles:

  • Round-Up of Recent Business Divorce Cases from Across the Country, by Peter Mahler
  • An Interesting Decision on Diversity Jurisdiction and “Who is a Member?,” by Thomas E. Rutledge
  • Disagreement Over the Requirements for Issuing a Charging Order, by Thomas E. Rutledge
  • Virginia LLC Update: Bankruptcy Court Refuses to Impose Fiduciary Duty of Loyalty on a Manager of a Virginia LLC, by Sean P. Ducharme
  • The Duty of Loyalty Under the New Jersey Revised Uniform Limited Liability Company Act, by Gianfranco A. Pietrafesa
  • Operating Agreement, Executory Contracts and Denman, by Jay Adkisson
  • Selected Recent LLC Cases, by Elizabeth S. Miller 

The LLC & Partnership Reporter is available only to members of the LLCs, Partnerships and Unincorporated Entities Committee, which you can join here

The June 2015 issue of The Business Tax Quarterly, published by the Taxation Committee, includes the following articles:

  • Avoiding Tax Inefficiencies in M&A Integration, by Elan P. Keller
  • IRS Publishes Final Regulations Under Section 162(m)
  • Proposed US Treasury Regulations Attempt to Distinguish “Active” Insurance Companies from Hedge Funds
  • King v. Burwell: The Supreme Court Hears the Case About Health Insurance Subsidies, by Paula Stannard, Colin Roskey and Danielle White
  • Treasury’s New Proposed Regulations May Cause Problems for MLPs, by Timothy J. Devetski 

This issue of The Business Tax Quarterly can be found here.