BLT: January 2019


Featured Articles

Business & Corporate

Obamacare under the Trump Administration: A Discussion of the Healthcare Challenges Employers and Business Attorneys Face in Today’s Political Environment

Introduction. The Patient Protection and Affordable Care Act and related statutes passed in 2010 (collectively the Affordable Care Act or ACA) created a complex but comprehensive approach to closing gaps to availability and affordability of major medical coverage.[1] The ACA was passed by a Democratic majority in Congress and signed into law by President Obama. Although the health care and health insurance industries came to the negotiating table and impacted the final version of the bill, Republicans almost unanimously opposed the bill in Congress and have continued to oppose key parts of it.

Business & Corporate

The Critical Importance of Renewable Energy

In December 2015, the Conference of the Parties (COP21) to the U.N. Framework Convention on Climate Change convened in Paris to address threats posed by climate change. During the conference, 195 nations signed an agreement (the Paris Agreement) and pledged to limit the global average temperature rise to as close as possible to a maximum two degrees Celsius. The Paris Agreement is seen as the cornerstone of a global approach to preventing catastrophic climate change.

Business & Corporate

Akorn: Establishing a Material Adverse Effect

Material adverse effect (MAE) or material adverse change (MAC) clauses are common in acquisition agreements, and yet until recently, no Delaware court has determined that a buyer had ever validly terminated a merger agreement pursuant to such a clause. That all changed on October 1, 2018, when the Delaware Court of Chancery in Akorn, Inc. v. Fresenius Kabi AG, a blockbuster, 246-page opinion, determined for the first time that such a clause was properly evoked.

Business & Corporate

Planning Beyond the Sale of a Business: Understanding Working Capital Adjustments

Planning for the sale of a business must extend beyond the close of the actual transaction. Preparations must be made to simplify the resolution of disputes that could arise between buyers and sellers. Litigation in connection with the sale may occur over a variety of reasons, including breaches of the seller’s representations and warranties, or determining post-sale milestones that trigger contingent purchase price payments. The most common post-sale dispute, however, involves determining the working capital of the sold business.

Business & Corporate

On to Greener Pastures: The Landscape of Impact Investing, Divestment Strategies, and How Investors Are Combatting Climate Change

As individuals and institutions around the world are implementing a variety of strategies to combat climate change, investors are contributing to those efforts with their capital. Although not an exclusive list, two investor-led strategies that seek to combat climate change include impact investing and divestment. The following highlights the key aspects of these approaches.

Business & Corporate

Five Simple Rules for In-House Counsel to Avoid the Most Hidden Insolvency Risks in Commercial Transactions

In-house counsel is responsible for advising internal clients on a wide variety of risks associated with day-to-day business operations, including the insolvency and bankruptcy of a business partner. These risks are inherent—and often hidden—in nearly every transaction. It is important that in-house counsel is familiar with certain fundamental bankruptcy concepts to effectively counsel their business teams and, if at all possible, mitigate those risks.

Business & Corporate

Institutional Investors Petition the SEC to Require ESG Disclosures

On October 1, 2018, two law school professors—Cynthia Williams of York University and Jill Fisch of the University of Pennsylvania—together with numerous institutional investors that collectively manage more than $5 trillion in assets submitted a petition for rulemaking to the Securities and Exchange Commission (“SEC”) calling for the SEC to develop a standardized comprehensive framework under which public companies would be required to disclose identified environmental, social, and governance (“ESG”) factors relating to their operations.

Business & Corporate

Meditation on Model Rule 5.4

The Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 464 in 2013 interpreting Model Rules 1.5 and 5.4: Lawyers subject to the Model Rules may work with other lawyers or law firms practicing in jurisdictions with rules that permit sharing legal fees with nonlawyers. Where there is a single billing to a client in such situations, a lawyer subject to the Model Rules may divide a legal fee with a lawyer or law firm in the other jurisdiction, even if the other lawyer or law firm might eventually distribute some portion of the fee to a nonlawyer, provided that there is no interference with the lawyer’s independent professional judgment.

Business & Corporate

Attorney-Client Privilege in Government and Congressional Investigations: Key Considerations and Recent Developments

Most attorneys are familiar with the basics of the attorney-client privilege, the attorney work product doctrine and attorney ethics rules to maintain client confidentiality. Although these precepts are governed by the law of the jurisdiction, the general protections are similar regardless of the jurisdiction. The attorney-client privilege protects communications between a client and an attorney when the communication was made for the purpose of the client obtaining legal advice.