Business and Corporate Litigation Committee Newsletter - Spring 2019

 

Message from the Chair

Featured Articles

Business & Corporate

Pennsylvania Requires Insurers to File Annual Corporate Governance Disclosures

Pennsylvania has adopted uniform annual corporate governance disclosure requirements for domestic insurers and insurance groups of which the Commonwealth is the lead state (each, an “Insurer”) in Senate Bill 1205 of 2018, now known as Act 163 (the “Act”). Those national standards were approved November 18, 2014 by the National Association of Insurance Commissioners (“NAIC”) and are required to be implemented by the Pennsylvania Insurance Department (“Department”) for the Department’s continuing certification by the NAIC. Under the Act, beginning January 1, 2020, and annually thereafter, Insurers must file with the Department written disclosures of confidential governance practices and policies, each known as a “Corporate governance annual disclosure” or “CGAD”. The effect of the Act and similar legislation to be adopted in states throughout the United States is to establish uniform standards for the monitoring of the risk decision process of insurers and insurance groups with a goal of minimizing insolvencies in the insurance industry.

Business & Corporate

ABA Section of Business Law & Business Courts – A 25 Year Connection

The American Bar Association’s Section of Business Law (the Section) has long supported establishing business court divisions or programs within existing court systems, where appropriate. The Section has also regularly published articles and presented programming on the subject of business courts, included business court judges within its fold, and helped law students of diverse backgrounds serve as business court clerks.

Business & Corporate

Quality of Lawyering

Throughout one’s education teachers endlessly pronounce that there is no such thing as a stupid question. Is there truly no such thing as a stupid question though? Perhaps asking the judge the same question that your co-counsel just asked minutes before at the end of a seven-hour long pre-trial conference is a stupid question. Although losing an oral argument will undoubtedly happen throughout the career of even the most adept orator, being meticulous and generally attentive can prevent embarrassing and unnecessary gaffes and help to build a reputation as a competent litigator. Being careless and lazy can destroy that reputation in an instant.

Business & Corporate

Change of Leadership in West Virginia’s Business Court Division

Circuit Court Judge Christopher C. Wilkes served admirably as Chair of West Virginia’s Business Court Division until his retirement last week, effective January 31, 2019. West Virginia Chief Justice Elizabeth D. Walker issued an Order outlining the transition, and appointing Business Court Division Judge Michael D. Lorenson to serve as the new Business Court Division Chair. Judge Lorenson began his tenure as chair last Friday, February 1, 2019.

Business & Corporate

2019 Business Court Representatives

Each year, the Judges Initiative Committee invites commercial-court judges to spend two-year terms as Business Court Representatives to the Business Law Section. In 2019, we welcome Judge Lita Popke from Wayne County, Michigan, and Justice Saliann Scarpulla from New York County, New York, as the latest class of Business Court Representatives. In their new roles, Judge Popke and Justice Scarpulla will attend the ABA Business Law Section meetings in 2019 and 2020. There, they will speak on panels, mingle with conference attendees, and become essential parts of the Business Law Section. As co-chair of the Judges Initiative Committee, I encourage you to introduce yourself to these two esteemed jurists. I have no doubt that you will find them engaging and informative. We are truly fortunate to have them as new members of our section. To more fully introduce themselves to you, they have provided us with biographical statements and photographs. Please join me in welcoming them!

Business & Corporate

California Consumer Privacy Act

It is obvious to even the most tech illiterate by now that regulations over data are becoming more onerous and intrusive against what was more of a wild west type scenario in the early days of data sharing. The latest proof of this is in the newly enacted General Data Protection Regulation (GDPR) in the European Union effective on May 25, 2018 (it happens to be my birthday), and in the shadow of the pending U.S. Encrypt Act, and the most recent state’s effort to tighten the data screws for which the poster child currently is California’s new regulation, California Consumer Privacy Act (CCPA) that sets the bar higher than ever before for U.S. companies regarding data privacy regulation. If the bill comes into law in its present form, which this author believes it will not, then companies doing business in the U.S. will require almost the same data privacy controls and capabilities that multinationals need to do business in the European Union require today with some rather ideological exceptions. As always, “failure to protect the data” signals the same need GDPR has for end-to-end encryption, portability, conformity, and data residency.

Business & Corporate

Environmental Liabilities Now Enjoy Super-Priority in Canada

On January 31, 2019, the Supreme Court of Canada released its decision in Orphan Well Association et al v Grant Thornton Limited et al, which was an appeal by the Alberta Energy Regulator (AER) and the Orphan Well Association (OWA) arising from the receivership and bankruptcy of Redwater Energy Corp. (Redwater), a small publicly traded oil and gas producer in Alberta. The decision addresses the treatment of environmental regulatory obligations in insolvency proceedings and has significant implications for Canada’s natural resources and financial services sectors. In several important respects, it marks a new and less certain direction for insolvency law and what has been referred to as its untidy intersection with regulatory law.

Subcommittee Reports

Leadership

Business & Corporate

ABA Business Law Section Leadership Academy

To assist members interested in honing their leadership skills and their understanding of leadership, the ABA Business Law Section is developing a new member benefit -- a Leadership Academy designed to provide its members with the knowledge and skills to enhance their efforts to attain leadership roles in the ABA, charitable, community and civic organizations, and their places of employment. The Section’s Leadership Academy is an alternative to leadership development and training programs offered by many universities and for-profit organizations. Unlike other programs, the Section’s Leadership Academy will be integrated into regular Spring and Annual Meeting programs in concert with participating substantive and administrative committees, and supplemented by webinars and/or conference calls.

Past Meetings

Business & Corporate

Fall 2018 Meeting Recap

This past November, BCLC presented three CLE programs at the Fall CLE Meeting in Washington, DC, on November 16, 2018. The day started with “Bankruptcy for Breakfast,” which discussed significant insolvency cases from the prior year. Katherine Good of Whiteford, Taylor & Preston LLC in Wilmington, Delaware moderated the program. The panelists were Judge Elizabeth Stong of the US Bankruptcy Court for the Eastern District of New York, Michael Rubenstein of Liskow & Lewis in Houston and Erin Diers of Hughes Hubbard & Reed LLP in New York. Christopher Samis of Whiteford, Taylor was the program chair.

Upcoming Meetings

Business & Corporate

BCLC Committee Dinner at Stanley Park

The BCLC, along with the Dispute Resolution, Judges Initiative, and Sports Law Committees, will host our ever-popular Committee Dinner and Women’s Business & Commercial Advocates Reception on Thursday March 28, 2019, with reception beginning at 7:00 p.m. and dinner at 8:00 p.m. The venue is less than two miles from the meeting hotel. Attendees should plan to take taxi or other ride-hailing service to the event. There will be optional shuttle bus transportation available for the return only back to the hotel for a small fee.

Publications

Business & Corporate

The Business Lawyer

The Business Lawyer Editorial Board invites Business Law Section committee, subcommittee, and task force submissions as well as topical, scholarly submissions, including case law analyses and commentary on developing trends, that may be of interest to business lawyers generally and other members of the Business Law Section. An editorial decision is made on lead articles typically within two to four weeks after submission, with detailed substantive editing thereafter. We are looking for interesting, well-researched submissions on areas of topical interest. Lead time with full peer review and professional staff editing is approximately four to six months.

Business & Corporate

Business Law Today

Is it your New Year’s resolution to become a published author in 2019? The Section’s recently re-imagined web publication, Business Law Today (BLT), provides several opportunities for Business and Corporate Litigation Committee members to become internationally published authors. With a worldwide readership of nearly 50,000 business law practitioners, BLT is the fastest and easiest way for Section members to get noticed by the audiences that matter the most. Introductory-level content written by and/or for younger lawyers is welcomed and encouraged!

Business & Corporate

Recent Developments

The 2019 Annual Review of Recent Developments in Business and Corporate Litigation will be published by early April 2019. The Annual Review comprises 25 chapters that provide practical analysis along with 2018 case citations organized by specific areas of corporate litigation. This year’s edition will be published in an e-book format, and certain Chapters will be available on an individual basis. Over 150 experienced attorneys from across the country have contributed to this publication. They offer concise commentary on key issues, detailed outlines, and useful summaries of recent cases, legislation, trends, and developments during the past year.

Members in the News & Notes