Message from the Chair
William D. Johnston
Chair, Business and Corporate Litigation Committee
Fellow Members of the Business and Corporate Litigation Committee -
Here's a quick update in connection with the upcoming Spring Meeting of the Business Law Section and six other important matters (webinars in the
works; applications to become Business Law Section Fellows, Ambassadors, and Diplomats; new ABA/Section membership referrals; submissions to "Network"
newsletter, Business Law Today, and the Business Lawyer; other future meetings; and the new "photo" Leadership Roster).
- Spring Meeting (Caesars Palace, Las Vegas, March 22-24)
If you haven't yet registered for the Spring Meeting, please consider doing so. As always, the Meeting will offer outstanding CLE programs, committee
and subcommittee meetings, networking opportunities, and enjoyable time with friends new and old. Please see the Section's webpage at www.americanbar.org/groups/business_law.html for on-line registration and for the
To highlight Section-wide gatherings as well as certain programs and meetings sponsored by our Committee (with some of the inevitable overlaps):
Weds, Mar. 21
*6:30 p.m. - 8:00 p.m. Diversity Networking Reception
Thurs., Mar. 22
*8:00 a.m. - 10:00 a.m. CLE "Maps to the Social Media Minefield Part I: Brand Protection, Marketing, Workplace and Litigation Policies to Avoid
*8:45 a.m. - 4:00 p.m. Young Lawyer Institute Program, including our Committee-presented "Strategic Planning and Case Assessment for the Newer Lawyer"
(8:45 a.m. - 10:00 a.m.)
*10:00 a.m. - noon Meeting of our Committee's newest subcommittee, the Sports-Related Disputes Subcommittee, featuring a first-ever presentation re the
workings of international means to address sport-doping, etc.
*2:00 p.m. - 5:00 p.m. CLE "The 2012 Annual Review of Developments in Business and Corporate Litigation"
*6:00 p.m. - 7:30 p.m. Section's Welcome Reception
*7:00 p.m. Business and Corporate Litigation Committee Reception and Dinner (Aquaknox Restaurant, at The Venetian), with special thanks to the Eckert
Seamans firm for its sponsorship of the Reception. (Please contact Toyin Alaka at Toyin.Alaka@americanbar.org. to sign up for the dinner if you haven't already done so.)
Fri., Mar. 23
*7:30 a.m. - 9:00 a.m. Pro Bono Breakfast
*8:00 a.m. - 9:00 a.m. "Coffee with the Chair Meet and Greet"
*8:00 a.m. - 10:00 a.m. CLE "A Spoonful of Sugar: Educating Boards of Directors About Class and Derivative Action Exposure, Avoidance, and Procedures"
*10:30 a.m. - 12:30 p.m. CLE "Business Judges Speak: How to Litigate a Case in Business Court"
*12:30 p.m. Section Lunch
*2:30 p.m. - 3:30 p.m. Meeting of the Business and Corporate and Litigation Committee (all members and prospective members welcome)
*4:30 p.m. - 5:00 p.m. Meeting of Business and Corporate Litigation Committee leaders (all members and prospective members welcome)
*5:00 p.m . - 7:00 p.m. Women's Business and Commercial Advocates Subcommittee's Reception and Awards Ceremony, honoring Judge Linda Riegle of the
United States Bankruptcy Court for the District of Nevada (with special thanks to Snell and Wilmer for their sponsorship)
*7:00 p.m. Section Dinner
Sat., Mar. 24
*8:00 a.m. - 10:00 a.m. CLE "Strength in Diversity: Empowering All Lawyers to Thrive in the Workplace"
*2:30 p.m. - 4:30 p.m. CLE "Defending Public Companies in High Stakes Criminal Trials: Lessons from U.S. v. Xcel Energy, Inc."
Webinars in the Works
Our Committee, through the Meetings and Programs Subcommittee, is working to prepare and present various webinars. Please let us know what would be of
Applications for the Business Law Section Fellows, Ambassadors, and Diplomat Programs
The BLS Fellows, Ambassadors, and Diplomat programs are designed to involve young lawyers, lawyers of color and lawyers with disabilities in the
substantive work of the Section. The Section funds the two-year term of five Fellows, five Ambassadors and one Diplomat, including their participation
in three Section meetings each year. Applications are due April 27. For more about the programs, please see the Section's webpage (above).
New Member Referrals
Please continue to encourage your practice/judicial colleagues to join the Business and Corporate Litigation Committee if already members of the ABA
and the Business Law Section. And, as a lawyer or associate member, you can recruit new ABA members by offering a free trial ABA and Business Law
Section membership and having a chance to win an iPad® or iPodtouch®. The campaign runs through May 31. Please see the Section's webpage
Submissions to our "Network" Newsletter, to Business Law Today, and to the Business Lawyer
With thanks to fellow Committee members Peter Valori and Gary Zhao, and to BLS staff member Frank Hillis, we have the benefit of this issue of the
"Network" newsletter. As always, please consider submitting an article of interest - no footnotes required! Peter can be reached at email@example.com, and Gary can be reached at GZhao@salawus.com.
Please also consider submissions to Business Law Today and to the Business Lawyer. Thanks to the authors from the forthcoming, two-volume Annual Review of Developments in Business and Corporate Litigation who participated in the BLT "mini-theme"!
Other Future Meetings
Please be sure to have on your calendar the 2012 Annual Meeting (August 3-6, in Chicago) and the 2012 Fall Meeting (November 15-17, in
New "Photo" Leadership Roster
Many thanks to fellow Committee member Mac McCoy for our first-ever "photo" Leadership Roster. Please check it out (as part of this newsletter, and on
the Committee's webpage). We hope that the roster literally will help Committee members "attach a face to a name" in communicating with leaders of our
subcommittees, working groups, and task forces. And we hope to expand the effort to create a Committee-wide photo directory.
* * * *
As always, please let me know if you have any questions, concerns or suggestions, or if I can be of assistance in any way. Hoping to see you in Las
Bill Johnston is a partner in the Wilmington, Delaware-based law firm of
Young Conaway Stargatt & Taylor, LLP. He is a past chair of the firm's
Corporate Counseling and Litigation practice group.
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BlackRock Financial: Jurisdictional Standing of a Class Action Suit Challenging an Administrator of a Trust
By Jesse A. Oppenheim
Any first-year law student worth his or her weight in caffeinated beverages can recite that a federal district court has subject matter jurisdiction
over any case where there is diverse citizenship of parties and the amount-in-controversy exceeds $75,000. Many will also know that class actions
receive special treatment that "get them around" the diversity requirement. The U.S. Court of Appeals for the Second Circuit, however, recently
highlighted an exception to this well-known rule.
In BlackRock Fin. Mgmt. Inc. v. Segregated Account of Ambac Assur. Corp., 11-5309-CV L, 2012 WL 611401 (2d Cir. Feb. 27, 2012), the
Second Circuit addressed the exception to federal subject matter jurisdiction contained in 28 U.S.C. §§ 1332(d)(9)(C) and 1453(d)(3), which
state that a district court lacks original jurisdiction in class action cases where the amount in controversy exceeds $5,000,000 and the case "relates
to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section
2(a)(1) of the Securities Act of 1933)." 28 U.S.C. § 1332(d)(9)(C).
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Michael D. Rubenstein, Chair
We presented the "Bankruptcy for Breakfast" seminar at the Fall Section Meeting in Washington, DC, for which we had a packed room.
Class and Derivative Actions
Although we elected not to organize a program for the Spring meeting, our Subcommittee will assist the Opinion Subcommittee (of which Carolyn Richter is Chair) with plans to put together a program on legal isolation under FASB and trends in true sale opinions for the Spring 2013 meeting in Washington DC. Coordination with other committees is being solicited.
Members of our Subcommittee have also drafted the Bankruptcy Litigation chapter for the Annual Review, which is currently in the editing stages, for release later this year.
Joseph Ianno Jr, Mac Richard McCoy, Co-Chairs
The Class and Derivative Actions Subcommittee is pleased to present a CLE program entitled "A Spoonful of Sugar: Educating Boards of Directors About
Class and Derivative Action Exposure, Avoidance and Procedure," during the Spring Meeting in Las Vegas. The program will take place from 8:00-10:00 AM
on Friday, March 23 in Milano VII, Promenade Level, Caesars Palace. The program will explore the ways in which lawyers who regularly counsel boards can
proactively educate directors about potential corporate exposure to class and derivative actions, with an eye toward prevention. Please join us for
this very practical and engaging program. If you are unable to attend our CLE program, please consider joining us for the Subcommittee's administrative
meeting on Friday, March 23 from 2:30-3:30 PM in the Verona Room, Promenade Level.
Corporate Counseling & Litigation
The Subcommittee was pleased to contribute an article to the January 2012 issue of Business Law Today, "Taming the Kraken: The Supreme Court Weighs in
on Class Actions in 2011." The article describes the Supreme Court's seminal holdings in Wal-Mart v. Dukes, AT&T Mobility LLC v. Concepcion, and Smith v. Bayer Corp. in 2011.
Additionally, the Subcommittee has finalized its updates to the chapter on Class Action Law for the forthcoming 2012 edition of the Annual Review of Developments in Business and Corporate Litigation, which includes new sections relating to Canadian class action law and
U.S.-Canadian cross-border class actions.
Lastly, the Subcommittee will have two open Vice Chair positions beginning after the 2012 ABA Annual Meeting in Chicago. If you or anyone you know
would like to be considered for one of these appointments, please contact Subcommittee Chair Mac McCoy (firstname.lastname@example.org) for more information.
Denise Seastone Kraft, Chair
The Corporate Counseling and Litigation Subcommittee (the "Subcommittee") is pleased to report on recent developments and important upcoming events.
Pro Bono and Public Service
The Subcommittee's Chairperson, Denise Seastone Kraft, Esq. will head from Wilmington, Delaware to Las Vegas, Nevada for the upcoming
Business and Corporate Litigation Committee Spring Meeting. Ms. Kraft will lead a panel discussion of important corporate law decisions from 2011.
Other panelists will include Delaware Supreme Court Justice Henry duPont Ridgely and Mark Frietas, Esq., who is Corporate Counsel for Axia, Ltd., a
global consulting firm. The panel discussion, which is expected to last approximately 30 minutes, will be part of the Annual Review of Developments in
Business and Corporate Litigation presentation, scheduled for 2:00 p.m. to 5:00 p.m. on Thursday, March 22. The presentation materials will include
brief summaries of significant 2011 corporate law decisions as well as an article by Paul D. Brown, Esq. and
K. Tyler O'Connell, Esq., recently published in Business Law Today, regarding 2011's notable stockholder victories in the
Delaware courts. Messrs. Brown and O'Connell are Subcommittee members, and Mr. O'Connell currently serves as a Co-Vice Chairperson.
Kristin Gore and Victoria Newman, Co-Chairs
On Wednesday, March 21st, prior to the kickoff of the Business Law Section's Spring Meeting, the Pro Bono and Public Service Subcommittee,
along with the Business Law Section's Young Lawyer Committee, will partner with Junior Achievement of Southern Nevada, Inc. for an afternoon of
financial literacy, business ethics, or similar instruction. The volunteer team will meet with local high school students and teach a scheduled Junior
Achievement lesson from prepared materials. The experience will be patterned after the volunteer effort that took place during the Section's 2011
Spring Meeting in Boston. We are seeking twelve volunteers for this effort. If you have any questions about this year's JA volunteer experience, the
plans for 2012 or would like to volunteer, contact Kristin Gore at email@example.com or Victoria Newman at
Michael Bernasconi, Chair
A new Subcommittee is born
The Subcommittee SPORTS-RELATED DISPUTES started its operation at the Fall 2011 Meeting in Washington DC, with Michael A.R. Bernasconi as Chair
and Hon. J. Allen S. Goldberg, as Vice-chair of the Subcommittee.
New members (membership can be entered online), as well as any person interested in getting
involved in the preparation of future programs as well as additional officers are more than welcome. Any questions, please contact either the Chair (firstname.lastname@example.org) or the Vice-chair (email@example.com).
Session at the Spring Meeting in Las Vegas, March 2012
The Subcommittee will hold its first meeting at the Spring Meeting of the ABA Business Law Section in Las Vegas on Thursday, March 22, 10:00 a.m.-12:00 p.m. The meeting will focus on doping disputes.
During this meeting, the Subcommittee will host a program entitled: Star Athletes and Players before the Judge - New Challenges for Lawyers: How to Litigate a Doping Case before the Court of Arbitration for Sport.
The meeting will be chaired by Michael A.R. Bernasconi and by Hon. J. Allen S. Goldberg.
The speakers for this meeting will be John W. Ruger, Athlete Ombudsman of the United States Olympic Committee, Colorado Springs, Colorado, and Howard L. Jacobs, Attorney-at-law in Westlake Village, California.
In his role as Athlete Ombudsman of the US Olympic Committee, John W. Ruger has gained a unique experience in counseling and assisting athletes
in connection with disputes at several levels. His main function is in fact to provide independent advice to elite athletes and national governing
bodies, to assist in mediating disputes and to develop and implement USOC policies aiming at securing the rights and interests of athletes. He will
report on some of the cases of US athletes he has had direct involvement.
Howard L. Jacobs
has been identified by the Los Angeles Times and other national publications as one of the leading sports lawyers in the United States. Mr. Jacobs is
not a sports agent. His law practice focuses on the representation of athletes in all types of disputes, with a particular focus on the defense of
athletes charged with doping offenses. He has represented professional athletes, Olympic athletes and amateur athletes in disputes involving doping,
endorsements, unauthorized use of name and likeness, salary issues, team selection issues, and other matters.
Michael A. R. Bernasconi, Chair of the Subcommittee, attorney-at-law in Zurich, Switzerland, and member of the CAS, the Court of Arbitration for Sport, will give an
introduction to the history and the function of this arbitral institution which is considered to be, worldwide, the most important arbitral court for
sport matters. Particular attention will be given to the resolution system of the ad-hoc chamber that CAS will have at the 2012 Summer Olympic games in
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