E-mail not displaying properly? Click here to view it in your web browser.
Newsletter of the ABA Business Law Section Committee on
  Business and Corporate Litigation
Summer 2012
Join the Committee Online

Message from the Chair

Updates
  Compelling Arbitration:
Who Knows the Rules to Apply?
  Rules for Avoiding the Pitfalls of Filing Inadequate Affidavits by Custodians of Business Records
  Are SEC Equity Receiverships "Foreign Proceedings" Within the Meaning of UNCITRAL's Model Law on Cross-Border Insolvencies?

Subcommittee Updates
  Membership
  Sports-Related Disputes
  Securities Litigation
  Pro Bono and Public Service
  Corporate Counseling and Litigation

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
Fall Meeting
November 16 - 17, 2012
Washington, D.C.
  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 -

It was wonderful to see so many of you in Chicago during the recent Annual Meeting - old friends and new friends/first-time attendees. Thanks also to those of you who dialed in for various meetings when you weren't able to attend in-person. (And sorry for some of the dial-in kinks that are still being worked out.)

This is to offer some highlights from the Annual Meeting, to share other news of importance to BCL Committee members, and to flag dates for upcoming meetings.

Annual Meeting

To re-cap some highlights of the Annual Meeting:

*CLE programs. Our Committee sponsored two CLE programs and co-sponsored five CLE programs, all outstanding. Special thanks to BCL Committee members who organized and presented the two sponsored programs - one of Supreme Court arbitration cases and the other on preferred stock.

*BCL Committee Meeting. We had our best-ever-attended Committee meeting, with many new faces and with subcommittee, task force, and working group leaders presenting reports on recent and anticipated activities.

*Meetings of our Subcommittees, Task Forces, and Working Groups. Many BCL Committee subcommittees, task forces, and working groups convened during the Annual Meeting. The Corporate Counseling and Litigation Subcommittee and the Indemnification and Insurance Subcommittee met jointly to discuss key considerations when litigation is filed in multiple jurisdictions.

*BCL Committee Dinner. We had a sell-out, largest-ever for an Annual Meeting gathering of our Committee members at Bin 36. The company, food, beverages, and service were excellent even if the AC wasn't (sorry about that, and thanks again for the kind indulgence). Thanks again to Gary Zhao and his law firm, SmithAmundsen LLC, for their generous sponsorship of the reception portion of the dinner.

*Public service project. Our Committee's Pro Bono and Public Service Committee partnered with the Business Law Section's Young Lawyer Committee and Junior Achievement of Chicago to present "Ask an Expert Day." Volunteers met with students from local high schools to discuss career paths and preparatory education. There were numerous volunteers, and the program was well-received. Special thanks to Subcommittee Co-Chairs Kristin Gore and Victoria Newman.

*Various gatherings. BCL Committee members also attended the Section Welcome Reception, the Diversity Networking Reception, the Section Luncheon, and the 22nd Annual Margaret Brent Women Lawyers of Achievement Awards Luncheon. I know from speaking with attendees that our Committee members were out in force -- networking, recruiting new Committee members, and encouraging active involvement with the BCL Committee. Thanks to all!

*Increase in BCL Committee Membership. During the Annual Meeting, we learned that membership recruitment efforts have been paying off. Year-to-year, we have seen our Committee increase in size from 1,768 members to 1,922 members - an increase of 154. That means that we currently are the fifth largest of the fifty committees in the Business Law Section. Larger committees include: Mergers and Acquisitions (4,131); Federal Regulation of Securities (2,658); Corporate Governance (2,325); and Commercial Finance (2,034). Of note is that the increase in BCL Committee membership was surpassed by only two committees, Legal Opinions (263) and Mergers and Acquisitions (163). Also of note is that numerous other committees have seen de minimis growth or even a decline in membership. Bottom line: please continue to reach out to other Business Law Section members and encourage them to join our Committee. We of course are not interested in "cannabilizing" from other BLS committees. But the fact is that many Section members enjoy membership in multiple committees of the Section. In addition, recent analysis has shown that only about 20% of Business Law Section members currently belong to a committee of the Section. And, of course, please remember your family and friends who may not yet belong to the Section or even to the ABA!

Other News

In other news:

*Gary Zhao. Hearty congratulations to Gary Zhao on becoming President of the Chinese American Bar Association of Greater Chicago!

*Michael Bernasconi. Michael Bernasconi, Co-Chair of our Sports-related Disputes Subcommittee, has again done us proud by serving as judge of the Court of Arbitration for Sport on anti-doping, selection and other matters in the Olympics in London!

*New Task Force of the Business Law Section. Our Committee was asked by the Business Law Section to take the lead in forming a Task Force on the Development of Business Conduct Standards Directed to Human Trafficking. We have done so, and Brad Newman and Denise Kraft are serving as Co-Chairs of the Task Force (which will work closely with an ABA trafficking task force established by new ABA President Laurel Bellows).

*Our Newest Subcommittee. I am delighted to report that the BCL Committee's newest subcommittee will soon be the Trial Practice Subcommittee. Co-Chairs will be Judge Gail Andler and Dan Formeller. Co-Vice Chairs will be Michaela Sozio and Charmagne Sutherlin. Many thanks to these four leaders for their vision and their energy!

*Section Strategic Planning Efforts. Business Law Section leadership is currently pursuing renewed strategic planning efforts, known as "Advance IV." Leaders are identifying and examining in-depth issues related to membership, content delivery, and technology. Immediate Past BCL Committee Chair Pete Walsh is serving as Co-Chair of the overall effort.

*Invitation to Submit Ideas for Programs. Please submit to Meetings and Programs Co-Vice Chair Stuart Riback (SRiback@wilkauslander.com) any ideas for programs to be presented either during meetings and/or through webinars or podcasts.

*Invitation to Submit Material for Publication. Please keep in mind the opportunity to submit material for publication in our Annual Review of Developments in Business and Corporate Litigation, our Network newsletter, Business Law Today, and/or The Business Lawyer. Please also keep in mind the opportunity to submit material to the Publications Board of the Business Law Section (either as an individual author or as a member of a committee or subcommittee).

Upcoming Meetings

Finally, please mark your calendars for, and plan to attend the following meetings:

*2012 Fall Meeting (Washington, D.C. Nov. 15-16, 2012)

*2013 Spring Meeting (Washington, D.C. Apr. 4-6, 2013)

*2013 Annual Meeting (San Francisco, CA Aug. 8-10, 2013).

• • •

Thank you for your involvement in - and support of - the Business and Corporate Litigation Committee, and please let me know if I can lend a hand in any way (wjohnston@ycst.com or (302) 571-6679).


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.


back to top ↑

  
  Updates
   
 Compelling Arbitration: Who Knows the Rules to Apply?
By Judge William F. Highberger

Trial courts continue to receive very inconsistent direction from the U.S. Supreme Court, the California appellate courts and the National Labor Relations Board regarding the proper interpretation and application of the Federal Arbitration Act, 9 U.S.C. § 1 et seq., to state trial court cases. Because the arbitration alternative has so much impact on case value and because it is also intimately tied up with whether or not a case can proceed on a class or "representative" basis, this is a highly important topic.

The Supremacy Clause

As discussed by the latest U.S. Supreme Court cases on the topic, with respect to many aspects of arbitration, the U.S. Constitution and laws adopted by Congress are supreme as to any inconsistent enactments by any of the several states. In Marmet Health Care Center, Inc. v. Brown (Feb. 21, 2012) 132 S.Ct. 1201, the Supreme Court rejected West Virginia's Supreme Court's reliance on "public policy" to prohibit mandatory arbitration of personal injury claims against nursing homes and to decide whether the arbitration clauses in its case were unenforceable under state common law principles that were not specific to arbitration and preempted by the FAA.


More...

Rules for Avoiding the Pitfalls of Filing Inadequate Affidavits by Custodians of Business Records
By Robert L. Rogers III

Courts routinely grant dispositive motions based upon business records when such records are accompanied by affidavits establishing their admissibility under the business records exception to hearsay. The rules permitting Courts to do so are key features that contain the cost of business litigation. However, litigators should not take these rules for granted. In several recent opinions, Florida's appellate courts have reversed judgments based upon the improper admission of records custodian affidavits when the affiants or proffered witnesses lacked sufficient knowledge about how the records were maintained. These cases highlight the importance of selecting the correct persons to act as records custodians and the need to assure that their affidavits contain all the elements required under the law governing the business records exception. This article analyzes the lessons to be learned from these cases and offers a list of "dos" and "don'ts."


More...

Are SEC Equity Receiverships "Foreign Proceedings" Within the Meaning of UNCITRAL's Model Law on Cross-Border Insolvencies?
By Insolvency and Creditors' Rights Practice Group

A federal district court in Texas has recently concluded that an SEC equity receivership is collective in nature as that term is used in the definition of a "foreign proceeding" in section 101(23) of the Bankruptcy Code, which is based on the Model Law on Cross-Border Insolvency (the "Model Law") developed by the United Nations Commission on International Trade Law ("UNCITRAL"). This decision may assist equity receivers appointed in the United States in their efforts to marshal assets and obtain information in foreign jurisdictions around the world.


More...

back to top ↑

  
  Subcommittee Updates
   
Membership
Elizabeth Stong, Chair

The Membership Subcommittee serves as the Committee's liaison to the Section on matters related to member recruitment and retention. Our recent efforts include targeted e-mail campaigns to prospective members, participation in the Section's monthly Membership Committee conference calls, and support of the Section's plans to tailor the way in which it participates in the ABA Annual Meeting to the evolving needs of Section members, including members who practice in areas that touch on the subjects addressed by other ABA Sections. For the upcoming year, the Membership Subcommittee is pleased to invite all Committee members to participate in several outreach initiatives, including a new member mentoring program and further law student involvement in Committee programs and activities.

Subcommittee Vice Chair Caroline Pham provided the Membership Subcommittee's report at the ABA Annual Meeting in August. As of June 2012, the Committee had the second largest year-over-year membership increase in the Section, with 154 new members, representing an 8.7% gain. This was exceeded only by the Mergers and Acquisitions Committee, with 163 new members reflecting a 4.1% gain. Section-wide, the Committee is now the fifth-largest committee in terms of membership numbers, with 1,922 total members. The five largest Section committees are now:

  1. Mergers and Acquisitions (4,131 members)
  2. Federal Regulation of Securities (2,658 members)
  3. Corporate Governance (2,325 members)
  4. Commercial Finance (2,034 members)
  5. Business and Corporate Litigation (1,922 members)
The strong increase in Committee membership numbers is due in part to two successful email campaigns launched in November and December 2011. The campaigns were targeted to law students and lawyers/associate members, with 1.8% and 2.6% gains year-over-year in each class of membership, respectively. Overall, as of June 2012, the Section saw a year-over-year increase of 3.3%, from 52,526 to 54,241 members. The ABA currently has over 377,000 members in total.

The Committee also actively participates in the Section's membership initiatives, including the inaugural Law Student Speed Mentoring event at the Annual Meeting and the annual Law Student Program at the Section's standalone Fall Meeting, and recruitment of underrepresented groups. Section retention initiatives include the Essentials Podcasts series and the Business Breakfast Club.

In the upcoming year, the Membership Subcommittee plans to continue and expand its participation in Section membership efforts. We are also excited to assist in the launch of a new Committee initiative targeted at providing mentors for new Committee members. This program will match up new members of the Committee with existing members who have indicated a willingness to share their knowledge and experience as mentors. These Committee mentors can, among other things, introduce the new members to Committee leadership, structure, and activities, and serve as a guide or "buddy" at Section meetings. Stay tuned for more details and instructions on signing up to be a mentor as this new initiative is rolled out.

We welcome the input of all Committee members in our outreach efforts and look forward to the coming year.

Sports-Related Disputes
Michael Bernasconi, Chair

After the successful launch of the Subcommittee at the Spring Meeting 2012 in Las Vegas, the Subcommittee has now turned its attention to the planning of the Olympic Session that will take place at the 2013 Spring meeting in Washington DC.

Subcommittee Chair, Michael Bernasconi, was selected and attended the London Olympic Games as one of the 12 judges of the Ad hoc Division of the Court of Arbitration for Sport, i.e. the Court that had jurisdiction to judge any kind of dispute arising out or during the Olympic Games, in relation with all disciplines.

Subcommittee Vice-Chair, Hon. Judge Goldberg, attended the ABA Annual Meeting.

At the Fall Meeting 2012 in Washington DC, both Michael Bernasconi and Hon. Judge Goldberg will be happy to answer any questions from Committee members interested in participating in the activity of the Subcommittee and in planning the 2013 Spring Olympic session.

Securities Litigation
Sarah Cave, Chair

The Securities Litigation Subcommittee held a meeting of at the Annual Meeting. It was lightly attended, but we resolved to do the following:

  1. Obtain and maintain a current membership list and hold quarterly teleconferences to stimulate interest in the group.
  2. Work on a CLE program for the Spring Meeting focused on M&A litigation issues and trends.
  3. Develop a plan to increase membership and actual participation in the subcommittee.
  4. Solicit authors and participation in the ABA Annual Review for the Securities Litigation Chapter.

Pro Bono and Public Service
Kristin Gore and Victoria Newman, Co-Chairs

On Thursday, August 2nd from 3:00 p.m. 4:30 p.m. prior to the start of the Business Law Section's meetings at the ABA Annual Meeting in Chicago, the Pro Bono and Public Service Subcommittee, along with the Business Law Section's Young Lawyer Committee, will partner with Junior Achievement of Chicago for "Ask an Expert Day." The volunteer team will meet with students from local high schools to discuss their career paths and education. The program is intended to assist students in understanding the relationship between obtaining an education and the working world. We are seeking 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.

Corporate Counseling and Litigation
Denise Kraft, Chair

Members of the Corporate Counseling and Litigation Subcommittee enjoyed a busy and productive Annual Meeting in Chicago. On August 4, Subcommittee Co-Vice Chair Lewis H. Lazarus led a CLE panel presentation entitled "Structuring and Enforcing Rights and Preferences of Preferred Stockholders: What Recent Delaware Case Law Means for Issuers, Preferred Stockholders and Common Stockholders -- How Much Can Preferred be Preferred?" The CLE's attendees benefitted from the thoughts of Delaware Supreme Court Chief Justice Myron T. Steele, among others, on this increasingly important topic. The following day, the Subcommittee held a joint meeting with members of the Indemnification and Insurance Subcommittee. The meeting featured a roundtable discussion, led by Michael A. Pittenger, Danielle Gibbs and Tyler O'Connell, of important considerations when stockholder class actions challenging public company M&A transactions are brought in multiple jurisdictions. The Subcommittee is currently considering whether to seek to sponsor a CLE on this topic.

Looking forward to the Business Law Section's Fall Meeting in Washington, D.C., the Subcommittee will again meet jointly with the Indemnification and Insurance Subcommittee. It is currently anticipated that the meeting will feature a guided discussion on business valuation disputes. The meeting may also include updates on recent corporate law developments and issues for future panel presentations. Anyone with an interest is welcome to attend and participate.

back to top ↑

  
  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...

back to top ↑

  
Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.
Update your profile | Unsubscribe | Privacy Policy
American Bar Association: 321 N Clark | Chicago, IL 60654 | 800-285-2221
Business Law Section: 312-988-5588 | Section Staff | businesslaw@abanet.org | www.ababusinesslaw.org
Copyright © 2011