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The following excerpt is taken from A Practical Guide to Software Licensing for Licensees and Licensors: Analyses and Model Forms
by H. Ward Classen, Copyright 2006 by ABA Section of Business Law. Reprinted here with permission. The material contained herein represents the
opinions of the authors and editors and should not be construed to be the action of either the
American Bar Association or the Section of Business Law unless adopted pursuant to the bylaws of
the Association. Nothing contained herein is to be considered as the rendering of legal advice for
specific cases, and readers are responsible for obtaining such advice from their own legal counsel.
To request reprint permission, contact the Manager, Copyrights and Licensing, at (312) 988-6102.
For the complete excerpt, click here
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Message from the Chair, Alvin W. Thompson
"As a member of a learned profession, a lawyer should cultivate
knowledge of the law . . ."
Implicit in the statement, in the preamble to the Rules of Professional
Conduct, that "[a]s a member of a learned profession, a lawyer should
cultivate knowledge of the law beyond its use for clients . . .," is
the principle that a lawyer has the duty to cultivate knowledge of the law
in order to use it for the benefit of his or her clients. If you are a
more experienced business lawyer who is now developing and training new
business lawyers, I ask you to take a moment to think about how much
knowledge of substantive law you have accumulated over the years and what a
benefit it has been to you and your clients as you serve their needs. In
order to help new business lawyers gain a perspective on some basic areas
of substantive law that will encompass areas they are likely to encounter
in their own practice settings, the Section has developed an Annual
Institute for the Young Business Lawyer. This one-day Institute, now in
its third year, provides a setting in which young business lawyers can
obtain quality, introductory CLE at an affordable price. It has the added
benefit of being held at the beginning of the Section's Spring Meeting,
which provides new lawyers the opportunity to stay into the weekend to
learn first-hand about the Section's substantive law committees and the
benefits new and experienced lawyers can obtain from the work product those
committees produce to help keep their members current on the latest
developments in their practice areas.
The Institute will include seven "business law basics" programs,
as follows:
- Almost Everything You Want to Know About the Business Provisions Under the
New Bankruptcy Act
- The Alphabet Soup of the Unincorporated Business Organizations - The ABCs
of the LPs, LLPs, LLLPs, and LLCs
- Banking Law 101 - A Survey Course for New Lawyers
- Ethical Issues Facing the Young Business Lawyer
- The Five Hottest Topics in Employment Law - What Every Young Lawyer Should
Know
- Nuts and Bolts of Mergers and Acquisitions
- Understanding and Documenting Commercial Loans - A Beginner's
Guide
I encourage you to provide the younger lawyers you are developing and
training with, first, the opportunity to participate in the one-day
Institute and, second, the opportunity to stay and learn how joining the
Section's substantive law committees can assist them in their professional
development and help them serve your clients better.
Click here to review the full program and registration information.
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Alvin W. Thompson
Chair, Section of Business Law
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Letters Rogatory in Canada. An analysis of the Canada Evidence Act
and the ability of American lawyers to compel the production of evidence by
a Canadian resident for a proceeding in the United States.
Uniform Debt-Management Services Act. In 2005 the National
Conference of Commissions on Uniform State Laws approved the Uniform
Debt-Management Services Act to address problems in the credit counseling
business. This new act will be introduced later this year in state
legislatures to address the need for credit counseling mandated by the 2005
Bankruptcy Code Amendments prior to a Chapter 7 filing.
California Decision Holds State Preempted By NSMIA In Action Over Mutual
Fund Prospectus Disclosures.
By Alan M. Parness, Cadwalader Wickersham & Taft LLP
In what appears to be a case of first impression, a California
Superior Court judge recently issued an as-yet unpublished decision,
sustaining the defendants' demurrer to an action brought by the California
Attorney General against the distributor and investment manager of a family
of mutual funds, and held that the state was preempted by the National
Securities Markets Improvement Act of 1996 ("NSMIA") from asserting that
certain disclosures were omitted from the funds' prospectuses and
statements of additional information, in violation of the California
Corporate Securities Law of 1968.
Earnout Provisions in Acquisition Agreements. The 10th Circuit
Court of Appeals, applying Delaware law in Horizon Holdings, LLC v.
Genmar Holdings, Inc., upheld a jury award to the seller of a
manufacturer business who the jury believed was deprived by the buyer of an
opportunity to achieve the earnout even though the actions taken by the
buyer were not prohibited in the agreement.
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Committee Spotlight
To learn more about or join the committees that contributed to this month's practice points, just click on the committee name below.
Section members are eligible to join the Section's committees at no
additional cost. Become involved or simply stay in the information
flow. It's FREE!
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At the Section's Fall CLE Meeting, the SEC Enforcement Subcommittee of the
Committee on Federal Regulation of Securities held its annual question and
answer session with senior members of the Securities and Exchange
Commission Enforcement Division. The enforcement representatives provided
statistical information on the Division's caseload and speculated about
what, if any, changes they anticipated would be made by Chairman Cox. They
also shared their perspectives on many topics of interest to public
companies and broker dealers, including financial penalties, Regulation FD,
the benefits of cooperation with the SEC staff, and the burdens of e-mail
discovery.
to view Program Materials
to listen to the audio recording of this program 
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In remarks at the Section's Council at its meeting in Phoenix, retired D.C.
Circuit Chief Judge Patricia Wald, recently selected as one of the
Section's Business Law Advisers, reflected on her career and on the role of
business lawyers in enhancing business and investment opportunities in
underdeveloped regions.
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The Committee on Corporate Laws has released a Preliminary Report detailing
possible amendments to the Model Business Corporation Act relating to
voting by shareholders for the election of directors. The amendments that
the Committee is considering would, if ultimately adopted, address the
issue of majority voting, which has been prominently and actively debated
in many circles.
The Committee believes that the matter of voting by shareholders for the
election of directors is a vitally important aspect of the Model Act, and
therefore the Committee is seeking further comment on the amendments it is
considering before publishing them as proposed amendments. Accordingly, the
Committee is releasing the Preliminary Report and Annex that includes
proposed amendments to the Model Act and Official Comments, with the
request that interested persons submit their comments by February 20, 2006.
Such comments should be addressed to E. Norman Veasey, Chair, Committee on
Corporate Laws, 1201 N. Market Street, Suite 1402, Wilmington, DE 19801, or
sent to him by email at e.normanveasey@weil.com.
Before making a final decision on any substantive amendment to the Model
Act, the Committee publishes the proposal and explanatory material in The
Business Lawyer and invites comment. In this case, the Committee will
follow its traditional procedure by publishing in The Business Lawyer its
proposed amendments and Official Comments, after taking further action in
light of comments received by February 20, 2006.
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The Committee on Nonprofit Corporations is calling for nominations for the
2006 Outstanding Nonprofit Lawyer Awards. Awards are given annually in
the following categories: Academic, Attorney, Nonprofit In House Counsel,
Young Attorney (under 35 or in practice less than 10 years) and Vanguard
Award (lifetime commitment/achievement.) For a nomination form, go to
http://www.abanet.org/dch/committee.cfm?com=CL580000.
Nominations are due
by February 28, 2006, and the Awards will be announced at the Spring
Meeting in Tampa.
The Section's Committee on Diversity is seeking nominations for its 14th
Annual Jean Allard Glass Cutter Award. The Award will be presented on April
7, 2006 during the Section Luncheon at the 2006 Spring Meeting in Tampa,
FL. The Jean Allard Glass Cutter Award is presented to an exceptional woman
business lawyer who has made significant contributions both to the
profession and to the Section of Business Law. The Award is named for Jean
Allard, the first woman to chair the Section. For more information
and to submit a nomination, please click here.
The Committee on Pro Bono annually presents two
National Public Service Awards. One recognizes
the pro bono contributions of an individual and
the other recognizes those of a firm/company.
The Awards recognize significant pro bono legal
services that demonstrate a commitment to
providing services to the poor in a business
context and the achievements resulting from the
public service work for the clients and the
client groups represented. The recipients of
the Award will have undertaken a significant
public service project(s) that provided free
business law representation to the poor or to
an organization that predominantly serves the
poor, or improves the provision of such
services. The Award will be presented on April
7, 2006 during the Section Luncheon at the 2006
Spring Meeting in Tampa, FL . A complete
nomination package must be submitted to the
Section office by February 10, 2006. For more
information on the Award or to submit a
nomination, please click here. Please
help us solicit nominations by forwarding this
information to your colleagues.
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