June 2004 - Volume 3 - Number 1
     The monthly electronic newsletter of the ABA Section of Business Law
Restatements of Financial Statements: Selected Legal and Accounting Issues

Courts Confused By Pop-Up Ads

Additional Opinions Relating to Limited Liability Companies That Are Special Purpose Entities

Recent Delaware Supreme Court Decision Clarifies Definition of Independence of Directors

Committee on Negotiated Acquisitions

2004 Cyberspace Law Excellence Award Recipients Announced

Proposed Changes to the Model Business Corporation Act

The Business Lawyer Archives Are Now Online!

PLEASE NOTE: Address Change for ABA Chicago Offices

Save Time and Money at the 2004 ABA Annual Meeting with the Business Law CLE Passport



Spotting the Red Flags of Accounting Fraud or Manipulation: What Every Lawyer Needs to Know
  A VIDEOCONFERENCE, TELECONFERENCE and LIVE VIDEO WEBCAST
Tuesday, June 29th, 2004
1:00 - 2:30 p.m. EST

For complete program details, Click Here
To register, call 1-800-285-2221


Minimizing Risk and Prevention of Harm When an Enforcement Agency "Drops In"
  A BLT LIVE TELECONFERENCE
Free for the first 250
Section Members who register
Wednesday, August 11th, 2004
1:00 - 2:00 p.m. EST

For complete program details, Click Here
To register, call 1-800-285-2221


2004 ABA Annual Meeting - Atlanta, GA - August 6-10
  Mark your calendars! The 2004 ABA Annual Meeting will take place August 6-10 in Atlanta, GA.The Section of Business Law will be headquartered at the Atlanta Hilton Hotel. The Annual Meeting will give you the opportunity to attend 50+ information-packed Business Law CLE sessions, and participate in your choice of 200+ committee and subcommittee meetings. Committee meetings allow you to network with colleagues who share your interests and concerns, and get updates on current trends, developments and solutions from the leading authorities in your specific practice area.

Your registration fee of $275 ($150 early bird if you register by 5/28/04) plus your purchase of a Business Law CLE Passport at $195 will give you unlimited access to all 40+ Business Law Section CLE programs held at the Atlanta Hilton, as well as special reciprocal access to CLE programs presented by the Antitrust Law Section and the International Law Section.

To learn more about the ABA Annual Meeting or to register, click Here

If you plan to register, remember to save money by purchasing a Section of Business Law CLE Passport!


Involved in the Area of Employee Benefits?
  The Section is a co-sponsor of the ABA Joint Commission on Employee Benefits (JCEB), which presents a number of CLE programs each month. To view the latest schedule of JCEB program offerings, Click Here.




The ABCs of the UCC (Revised) Article 2: Sales
By Henry D. Gabriel and Linda Rusch
ABA Section of Business Law
Copyright 2004


B. SCOPE OF ARTICLE 2

Article 2 is entitled "Sales." § 2-101. The Official Comment to § 2-101 states, "the arrangement of the present Article is in terms of contract for sale and the various steps of its performance." The scope provision, § 2-102, however, is arguably broader, providing that Article 2 applies to "transactions in goods." Right at the start, then, is a conflict between the idea of a "contract for sale of goods" and "transactions in goods." "Transaction" is not defined in the Code; whereas, a "sale" is defined as "the passing of title from the seller to the buyer for a price." § 2-106(1). A transaction in goods could be construed to encompass ...
More

For the complete excerpt, click here

Click Here to Purchase Online




Message from the Chair, Steven O. Weise

I hope you are planning to attend the 2004 ABA Annual Meeting, August 6-10, in Atlanta. Consider all the Section of Business Law programs and activities you will find:
  • Over 200 committee/subcommittee meetings
  • Over 45 CLE programs
  • Section of Business Law Welcome Reception at the World of Coca-Cola
Where else can you earn an entire year's worth of CLE, keep up-to-date on the latest business law developments and network with leading business lawyers from around the world in a few short days?

Nowhere will you find a stronger network of people and resources to help you realize the highest potential of your practice.

I encourage you to register early to ensure your place at the hotel.

For complete information, click here.

I look forward to seeing you in Atlanta.

Sincerely,

 
      Steven O. Weise
      Chair, Section of Business Law


Restatements of Financial Statements: Selected Legal and Accounting Issues
A financial statement restatement occurs when a company, either voluntarily or under prompting by its auditors or regulators, revises its public financial information that was previously reported. The number and profile of restatements of financial statements by public companies have increased significantly in recent years...
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Taken from "Restatements of Financial Statements: Selected Legal and Accounting Issues" by Meredith B. Cross, Erika L. Robinson, Knute J. Salhus, Jennifer A. Zepralka. The Securities Reporter, the newsletter of the Committees on the Federal Regulation of Securities, Volume 9, Issue 1, Spring 2004.



Courts Confused By Pop-Up Ads
[W]ebsite operators have tried to fight back, asserting traditional notions of trademark laws and copyright before the U.S. District Courts for the Eastern District of Virginia and the Eastern District of Michigan. On all theories, these district courts disagreed with the website operators. However, the U.S. District Court for the Southern District of New York has sided in part with the website operators. Furthermore, in the wake of these cases, industry and the legislature have tried to remedy the situation.
More
 
Taken from "Courts Confused By Pop-Up Ads" by Howard M. Gitten. CIPerati, the newsletter of the Intellectual Property Subcommittee of the Committees on Cyberspace Law, Volume 1, Issue 2, June 2004.



Additional Opinions Relating to Limited Liability Companies That Are Special Purpose Entities
The use of unincorporated business entities in commercial transactions has proliferated following the widespread enactment of state laws authorizing the formation of limited liability companies and limited liability partnerships. As a result, lawyers are now frequently asked to render third- party legal opinions in connection with transactions in which the participants are unincorporated entities.
More
 
From "Third Party Opinions on Unincorporated Entities" presented by the Committee on Partnerships and Unincorporated Business Organizations of the Section of Business Law during the 2004 Section of Business Law Spring Meeting in Seattle.



Recent Delaware Supreme Court Decision Clarifies Definition of Independence of Directors
The independence of a member of the board of directors of a company has always been an important issue under Delaware law, but the issue has gained increasing national importance based on the recent requirements for New York Stock Exchange and Nasdaq-listed companies, as well as the recent Sarbanes- Oxley Act.
More
 
Taken from "Recent Delaware Supreme Court Decision Clarifies Definition of Independence of Directors" by Francis G.X. Pileggi. Network the newsletter of the Committee on Business and Corporate Litigation, Volume 12, Issue 2. Spring 2004.




Committee on Negotiated Acquisitions
This Committee focuses on the role played by lawyers in negotiating and documenting business acquisitions and related transactions. The Committee's principal activities are:
  • Discussing and debating issues of current relevance to practitioners in the mergers & acquisitions ("M&A") area;
  • Presenting educational programs on M&A-related topics; and
  • Preparing and publishing model agreements (with commentary), practice manuals and other reference works and resource materials.
The Committee has already produced and published the Model Stock Purchase Agreement and the Model Asset Purchase Agreement (both with extensive commentary), and is currently preparing additional resource materials for publication, including:
  • A model public company merger agreement, with commentary;
  • A model joint venture agreement, with commentary;
  • A "dealmakers' dictionary" of M&A terms; and
  • A manual on acquisition practice and process (a practical, "how-to" publication directed at lawyers who do not have significant experience in M&A matters).
Earlier this year, the Committee's Task Force on Acquisitions of Public Companies held an extraordinary meeting in Wilmington with members of the Delaware Supreme Court and the Delaware Court of Chancery, to discuss Delaware law issues of particular importance to M&A practitioners.

At the annual meeting of the American Bar Association in Atlanta this coming August, the Committee will present two educational programs of interest to M&A lawyers - a program titled "Earnouts in Business Acquisitions: A Practical Solution or a Trap for the Unwary?" and a "committee forum" program titled "What You Should Know About Stock Options in M&A Transactions." The Committee will also co-sponsor a program titled "Buyer Beware: Changing Laws on Environmental Liability for Successor Corporations."

To learn more about the work of the Committee on Negotiated Acquisitions, click here

To join the Committee on Negotiated Acquisitions, click here .

Section members are eligible to join the Section's committees at no additional cost. Become involved or simply stay in the information flow.


2004 Cyberspace Law Excellence Award Recipients Announced
The recipients of the 2004 Cyberspace Law Excellence Award are Michael Baum, Amy Boss, Patricia Fry, Thomas McCarthy, Philip Otero and Jeffrey Ritter. Each are being recognized collectively as a group for their seminal work "The Commercial Use of Electronic Data Interchange - A Report and Model Trading Partner Agreement." The Model Trading Partner Agreement was first published by the ABA in 1993, and has been a widely-used resource for establishing electronic contracting practices worldwide.

Sponsored by the Committee on Cyberspace Law, the Cyberspace Law Excellence Award recognizes substantial contributions to the development of the law of cyberspace. Nominees must have made a substantial contribution through scholarship, participation in the legislative process or litigation. The Nominating Committee also identifies people instrumental in earlier cyberspace developments that may have seemed small at the time, but have emerged as fundamental.

The awards will be presented during the upcoming Cyberspace Law Committee Dinner on August 7th at Pura Vida in Atlanta during the 2004 Annual Meeting.

Click here to sign-up for the dinner


Proposed Changes to the Model Business Corporation Act
The Committee on Corporate Laws is requesting comment on four proposed changes to the Model Business Corporation Act. Below is a summary of the proposed changes as well as links to the complete text from the February 2004 issue of The Business Lawyer.

Part I. Subchapter F of Chapter 8
Proposed amendments to Subchapter F (sections 8.60-8.63) of the Act pertaining to directors' conflicting interest transactions.
Click here for full text

Part II. Subchapter G
Proposed new provision to be designated Subchapter G (section 8.70) of Chapter 8 of the Act pertaining to business opportunities.
Click here for full text

Part III. Role and Responsibilities of Corporate Directors
Proposed revisions to sections 8.01,8.25 (Official Comment only), 8.30 and a number of related provisions of the Act (mostly relating to the definition of "public corporation").
Click here for full text

Part IV. Functions of Officers
Proposed amendments to sections 8.41 and 8.42 of the Act. The same upheavals that gave rise to the proposals to revise provisions dealing with the responsibilities of directors also have drawn particular attention to the appropriate role of officers in the corporate governance arena.
Click here for full text

Comments should be addressed to Mary Ann Jorgenson, Chair, Committee on Corporate Laws, 4900 Key Tower, 127 Public Square, Cleveland, Ohio 44114-1304, or sent to her by email at MJorgenson@ssd.com.

The original comment period has been extended. In order to be considered by the Committee before adoption of the changes, comments must be received no later than August 21, 2004.


The Business Lawyer Archives Are Now Online!
Beginning with the February 2004 issue, complete searchable articles and text for The Business Lawyer journal are now online in the Section members-only area. Access to the members-only area requires that you enter your ABA ID number. If you do not know your ABA ID number, simply check your ABA ID card or call 1-800-285-2221.

In the coming months, archives of past issues will be added to the Section website.

To access The Business Lawyer online, click here


PLEASE NOTE: Address Change for ABA Chicago Offices
On May 17th, all ABA Offices in Chicago moved into a new headquarters along the Chicago River at 312 North Clark Street. Please note our new mailing address:
American Bar Association
321 North Clark Street
Chicago, IL 60610-4714
All phone and fax numbers will remain the same as will all e- mail addresses.


Save Time and Money at the 2004 ABA Annual Meeting with the Business Law CLE Passport
As you begin to make your Atlanta ABA Annual Meeting Plans, remember to simplify your life and further reduce your cost of attending Business Law Section CLE programs with a Section of Business Law CLE Passport. Your Business Law CLE Passport is good for unlimited access to all 50+ Business Law Section CLE programs held at the Section's headquarter hotel, the Atlanta Hilton.

The Section of Business Law CLE Passport will be priced as follows:

  Section of Business Law Members: $195
  Non-Business Law Section Members: $245
  Young Lawyers: $125
  Government Lawyers and Judges: $125
  Law Students: FREE
Additional Passport Value! The Section of Business Law has also entered into an agreement with the Antitrust Law Section and the International Law Section whereby each section will recognize the passport of the other Section and allow its holders admission to any CLE program sponsored by either Section.

To purchase your Business Law CLE Passport for the 2004 ABA Annual Meeting, click here.


Committee Developments
Dialogue with the Director of the SEC Division of Corporation Finance
On April 2nd, the Committee on the Federal Regulation of Securities conducted an interactive discussion with Alan Beller, Director of the SEC Division of Corporation Finance. Notes from this dialogue cover topics ranging from disclosure operations to shell companies. Click here for a complete summary.

Taken from "Notes of the ABA Committee on Federal Regulation of Securities - Securities Registration Subcommittee" The Securities Reporter the newsletter of the Committee on the Federal Regulation of Securities. Volume 9, Issue 1, Spring 2004.


Remarks by Herbert Allison, Jr. Chairman and CEO - TIAA-CREF
On June 4th, the Committee on Corporate General Counsel hosted the 2004 General Counsel Forum. During the Forum, the following remarks were delivered by Herbert, Allison, Jr., Chairman and CEO - TIAA-CREF:

"To me, the General Counsel is a guardian of corporate conscience. You, along with your CEO and your Board, have primary responsibility for ensuring the integrity - and reputation - of your companies. And that reputation has never been more vulnerable than today. Today, we're seeing a growing gap between those who think the remedial actions have gone too far, and those who think that they haven't gone far enough."

Click here for the full text of Mr. Allison's remarks.




The Section of Business Law of the American Bar Association
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  eSource Editor Linda C. Hayman - Copyright © 2004



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