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Newsletter of the ABA Business Law Section Committee on
  Business and Corporate Litigation
Join the Committee Online

Message from the Chair

Case Summary
  BlackRock Financial:
Jurisdictional Standing of a Class Action Suit Challenging an Administrator of a Trust


Subcommittee Updates
  Bankruptcy Litigation
  Class and Derivative Actions
  Corporate Counseling & Litigation
  Pro Bono and Public Service
  Sports-Related Disputes

Committee Leadership Roster

Editorial Board:
  Peter F. Valori
  Editorial Chair
  Damian & Valori LLP
  305-371-3960
  www.dvllp.com

  Gary Zhao
  Editorial Vice Chair
  SmithAmundsen LLC
  312-894-3210
  www.salawus.com


2012 Business Law Section
Spring Meeting

March 22-24, 2012
Las Vegas, NV
  Message from the Chair
   
William D. Johnston, Committee 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).

  1. 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 master schedule.

    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 Explosive Missteps"

    *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."

  2. 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 particular interest!

  3. 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).

  4. 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 (above).

  5. 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 pvalori@dvllp.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"!

  6. 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 Washington, D.C.)

  7. 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 Vegas!





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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  Case Summary
   
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).


More...

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  Subcommittee Updates
   
Bankruptcy Litigation
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.

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.

Class and Derivative Actions
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.

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 (mmccoy@carltonfields.com) for more information.

Corporate Counseling & Litigation
Denise Seastone Kraft, Chair

The Corporate Counseling and Litigation Subcommittee (the "Subcommittee") is pleased to report on recent developments and important upcoming events.

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.

Pro Bono and Public Service
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 kgore@carltonfields.com or Victoria Newman at victoria.newman@hklaw.com.

Sports-Related Disputes
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 (m.bernasconi@baerkarrer.ch) or the Vice-chair (goldie90@sbcglobal.net).

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 London.

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  Committee Leadership
   
William D. Johnston, Committee Chair
William D. Johnston, Committee Chair

Heidi McNeil Staudenmaier,
Committee Co-Chair

Patrick Thomas Clendenen,
Committee Co-Chair

Peter J. Walsh, Jr.,
Immediate Past-Chair



Complete Committee Photo Roster...

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