BLT: February 2018

     

    Featured Articles

    Business & Corporate

    Preparing In-House Counsel and External Lawyer Advocates for Effective, Good-Faith Mediation of Mergers & Acquisitions

    Leslie Ann Berkoff, John Levitske

    When deciding whether to mediate a mergers and acquisitions (M&A) dispute, and then preparing for the mediation, there are a variety of factors that both in-house counsel and external counsel should jointly evaluate. We recently consulted with a panel of experienced business mediation and litigation attorneys, an experienced professional business dispute mediator, and experienced in-house counsels of public companies who considered these topics. Here are some of their key thoughts.

    Business & Corporate

    Harvey Weinstein Tax May Hit Both Plaintiffs and Defendants

    Robert W. Wood

    Harvey Weinstein, Kevin Spacey, Bill O’Reilly, and many other figures in the business and entertainment world have been accused of serious acts of sexual harassment. The torrent that was unleashed came to be known on social media as the #MeToo movement. As 2017 drew to a close, Time Magazine selected the “Silence Breakers” as its person of the year. See Edward Felsenthal, The Choice, Time (Dec. 6, 2017).

    Business & Corporate

    The Revised Uniform Unclaimed Property Act Is an Improvement, but Constitutional Defects Should Be Addressed before Approval

    Ethan D. Millar, Scott J. Heyman, Charolette F. Noel

    In the summer of 2016, the Uniform Law Commission (ULC) adopted a revised Uniform Unclaimed Property Act (the 2016 Act). The 2016 Act is, in a number of respects, a better product than both the 1981 and 1995 versions; unfortunately, the 2016 Act left intact and expanded a number of highly controversial—and likely unconstitutional—provisions from the prior Acts. In particular, the 2016 Act expands states’ jurisdiction to escheat unclaimed property inconsistent with federal common law.

    Business & Corporate

    Protecting the Sacred Writing: The Operating Agreement

    Daniel S. Kleinberger

    My previous column in Business Law Today explained how, “Like Great Britain, a Limited Liability Company May Have an Oral Constitution” and noted some of the resulting dangers. This column shifts focus and provides practical steps toward protecting a written operating agreement from claims of oral or implied-in-fact modification. Such claims undercut the purpose of “reducing the agreement to writing,” replacing definiteness with uncertainty and substituting swearing matches for the written word.

    Business & Corporate

    The Incredibly Compelling Case to Rethink Records Retention in 2018 and Beyond

    Randolph A. Kahn

    I have spent nearly all my career helping companies figure out how to manage information. Over the years, I have found when looking closely enough at any organization that managing data is the corporate equivalent of making sausage. Maybe that gives sausage making a bad name, but it amounts to more stuff from various sources, the identity of which is suspect, and it is all mixed together.

    Business & Corporate

    Some Aspects of the EU’s New Framework for Personal Data Privacy Protection

    Nicolò Ghibellini

    This survey will first briefly describe the role of the Data Protection Officer (“DPO”), introduced by the European Union’s new General Data Protection Regulation (“GDPR”), which will enter into force on May 25, 2018.1 The discussion of DPOs will draw from the Guidelines on Data Protection Officers (“Guidelines”)2 issued by the Article 29 Working Party (“Art. 29 WP”).3 Second, the survey will address the new Privacy Shield framework that governs data transfer from the EU to the United States.

    Business & Corporate

    The Rise and Danger of Virtual Assistants in the Workplace

    Lenore Benessere, Robert D. Lang

    “Don’t ever say anything you don’t want played back to you someday.” This famous quote from Mafioso John Gotti is not the most likely advice that we would think to give to our clients. After all, law school and years of practice have taught us to counsel them on the need for good record-keeping practices to aid in prosecuting a lawsuit or ensuring a meaningful defense. We, especially those who are in-house counsel, are also likely to dispense advice regarding how to avoid litigation altogether by creating processes and providing training to ensure that clients and their employees are aware of their contractual obligations and comply with them.

    Business & Corporate

    The Accord and Guidelines and the Formation of the Section’s Legal Opinions Committee

    Arthur Norman Field, Jeffrey M. Smith

    The Business Law Section’s Legal Opinions Committee was not formed until 1989. By then the TriBar Opinion Committee (TriBar, formed in 1974 and originally comprised of members of the County, City and State Bars of New York) and the California Bar Business Law Section Corporations Committee (CalBar) were six years into a dispute about the proper approach to the remedies opinion.

    Business & Corporate

    Annual Survey of Judicial Developments Pertaining to Venture Capital

    Annual Survey Working Group of the Jurisprudence Subcommittee, Private Equity and Venture Capital Committee

    In this case,3 the Delaware Court of Chancery granted the defendants’ motion to dismiss a complaint brought by The Huff Energy Fund, L.P. (“Huff Energy”), the owner of approximately 40 percent of the outstanding common stock of Longview Energy Company (“Longview”), that challenged the decision of Longview’s board of directors and stockholders to dissolve Longview following a sale of a significant portion of its assets.

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