March 2010 - Volume 8 - Number 4
Section-Sponsored Events 2010 Spring Meeting April 22-24, 2010 Denver, CO 2010 Institute for the Young Business Lawyer April 22, 2010 Denver, CO Spring Meeting Public Service Project Hunger Free Colorado  2010 ABA Annual Meeting August 6-9, 2010 (Business Law Dates) Fairmont/InterContinental Mark Hopkins San Francisco, CA 
Avoiding the Accidental Franchise Malpractice Traps. April 14, 2010 | 1:00 PM EST Webcast/Teleconference Multi-site 
Negotiating Indemnification Provisions in Acquisition Transactions: A Drill-Down Featuring the Private Target Deal Points Study March 17, 2010 | 1:00–2:30 PM EST Webcast/Teleconference Multi-site The New ABA Model Intercreditor Agreement: Dealing with Intercreditor Issues between First and Second Lien Lenders March 25, 2010 | 1:00–2:30 PM EST Webcast/Teleconference Multi-site HIPAA HITECH Update for Group Health Plans March 25, 2010 | 1:00–2:30 PM EST Webcast/Teleconference Multi-site Internal Corporate Investigations and Forum for In-House Counsel 2010 May 5-7, 2010 National Institute St Regis Hotel Washington, DC Banking Law II May 20-21, 2010 Grand Hyatt Washington Washington, DC Negotiating Business Acquisitions 2010 November 4-5, 2010 Mandarin Oriental Las Vegas, NV For information on future programs, check out the Section Meetings Calendar. 
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Message from the Chair, Nathaniel L. Doliner
Congratulations to Carol Hansell, Chair of our Section's Corporate Governance
Committee, who was interviewed in Business Week recently on how boards
of directors can better understand and effectively deal with shareholder issues.
Click here
to read this insightful interview. The Corporate Governance Committee, with more than 2,200 members, is one of our Section's most active committees with members from the U.S., Canada and many other parts of the world. It is truly an international committee. Follow what our Corporate Governance Committee is doing through their Web site.
Registrations for the 2010 Spring Meeting are brisk, and, if you have not done so, I urge you to register online soon for what promises to be a tremendous Spring Meeting. I also encourage you to review the great list of sponsors for the Spring Meeting. In addition to our wonderful law firm and corporate sponsors, we are honored to welcome as sponsors this year a number of non-profit industry or membership organizations, including the Association for Corporate Growth-Denver Chapter, the Turnaround Management Association, and the National Association of Corporate Directors. The Business Law Section's association with these very important organizations will enrich our Section greatly.
At each Spring Meeting, our Section sponsors a public service project benefiting a charity in the host city. This year, our Section will partner with the Colorado Coalition to End Hunger to provide food and good nutrition to children from low-income families who typically lose access to school meal programs during the summer months. If you wish to donate to this very worthy cause, please click here.
Franchise issues can present traps for the unwary business lawyer. A BLT Live program on April 14 will focus on how to avoid these traps. Please visit the Section Web site for more information about this important program. While you are there, please note some of the other great upcoming Business Law Section programs.
Nathaniel L. Doliner
Chair, Business Law Section
Practice Points
Note from the Editor
eSource is interested in practice pointers that you want to share with the members of the Business Law Section, and so we are expanding the scope of this section of eSource to include member submitted practice pointers. These member submitted practice pointers will be in addition to featuring interesting and timely programs and materials produced by the committees of the Business Law Section. Please send your submissions to the eSource editor via email. · · · · ·
All submissions must be through email and must include the author's full contact
information and affiliations. The eSource editor has sole discretion regarding the
decision to publish any member submitted practice pointer. Authors of selected
submissions must sign the ABA's standard copyright release prior to publication.
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A Trap for the Unwary - Corporate Aggregation Rules in the States for Political Contributions.
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| 2. |
The Hatch Act - It's Not Just for Federal Employees Anymore.
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| 3. |
U.S. Companies Beware - Canada's Tough New Lobbying Act.
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The inaugural newsletter of the newly-formed
Government Affairs Practice Committee
has just been published. In addition to an introduction to the Committee and its
aspirations, there are three featured articles:
- "A Trap for the Unwary - Corporate Aggregation Rules in the States for Political Contributions;"
- "The Hatch Act - It's Not Just for Federal Employees Anymore;" and
- "U.S. Companies Beware - Canada's Tough New Lobbying Act."
Web Store Featured Product:-
Increased Regulation of Lobbying and Other Political Activities
(Audio CD Package)
Government affairs and lobbying have become a critical component of most corporations, trade associations, and other non-profit associations. Lobbying not only protects an organization, it is also an effective tool to create competitive advantages. But with the scandals surrounding lobbyists like Jack Abramoff, and increasing state and federal restrictions, how can you be sure your clients will emerge unscathed? What about other political activities beyond lobbying, like campaign financing? Do you know the latest ethics rulings and how these will affect your clients? -
Election Law Primer for Corporations, Fifth Edition
This new and updated 5th edition of The Election Law Primer for Corporations is a popular
and respected practical guide to the laws that regulate politics and lobbying. It contains
up-to-date information and expert interpretation to help business leaders and lawyers keep
pace with the rules on corporate political activities, lobbying, PACs, and gifts.
| 4. |
The Commercial Real Estate Loan Workout: Strategies for Minimizing Losses in a Troubled Market
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| 5. |
2009 Developments in FDIC Failed Bank Resolutions
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In the November 2009 issue of the
Banking Law Committee Journal,
featured articles included
"The Commercial Real Estate Loan Workout: Strategies for Minimizing Losses in a Troubled Market," and
"2009 Developments in FDIC Failed Bank Resolutions."
These two articles alone would be worth the price of admission, but the teaser is a
test of your banking knowledge with the question, "What do Alan Greenspan and the
late Ernesto 'Che' Guevara have in common?" The Editor promises to publish
the names of the first five correct respondents in the next issue of the Journal.
Perhaps Alan Greenspan will be willing to donate a signed version of his famous Congressional
testimony in which he first uttered the memorable phrase "irrational exuberance"?
Web Store Featured Product:-
Commercial Loan Workout Collection
(CD-ROM)
Learn the ins and outs of loan workouts with this comprehesive CD-ROM featuring the following bestselling CLE programs: -
Commercial Lending Law: A State-By-State Guide
Commercial Lending Law: A State-By-State Guide is a practical, easy-to-use compendium that outlines the essential information about commercial lending law in all 50 states. This is an especially valuable resource for lawyers negotiating or reviewing commercial lending laws outside their own jurisdiction. This compilation of state surveys covers all aspects of commercial lending laws for each state.
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Post-Cuomo - The Floodgates Have Not Opened and Watters Still Predominates.
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The November-December 2009 newsletter of the Consumer Financial Services Committee
contains several articles of broad appeal. Two recent decisions of the Supreme Court
and the U.S. Court of Appeals for the Second Circuit have revolved around the ability of
the Federal banking laws through the Commerce Clause in the US Constitution to preempt
state laws and/or the enforcement thereof. The newsletter contains a thoughtful
analysis of the law of preemption:
"Post-Cuomo - The Floodgates Have Not Opened and Watters Still Predominates."
This is a useful exercise for a business lawyer involved in any aspect of consumer finance.
| 7. |
Professional Reflections from Business Law Advisor Jerry Hyman.
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Jerry Hyman is an extraordinary person who has lived through very interesting times and has
represented some of the most demanding clients. His dedication to the Bar, to public service,
and to the civil rights movement cannot be questioned. Those present when Jerry gave his remarks
at the Midwinter Council Meeting were moved by his grace and insight. The Section has been
blessed by those who have accepted our offer to be Business Law Advisors and share their
wisdom and experience with us.
Business Law Advisors are distinguished leaders of the profession who the Section has chosen to involve in the Section's activities at its expense. Each year, three outstanding business lawyers are chosen for this honor for a two-year term. Business Law Advisors are individuals who have distinguished themselves as practitioners, teachers, or government officials in one or more of the areas in which committees of the Section are active. Click here for more information on the Advisors Program and nomination process.
Business Law Advisors are distinguished leaders of the profession who the Section has chosen to involve in the Section's activities at its expense. Each year, three outstanding business lawyers are chosen for this honor for a two-year term. Business Law Advisors are individuals who have distinguished themselves as practitioners, teachers, or government officials in one or more of the areas in which committees of the Section are active. Click here for more information on the Advisors Program and nomination process.
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.The Business Lawyer
February 2010 · Vol. 65 · No. 2
Published quarterly, The Business Lawyer is the premier business law journal in the country, circulating to approximately 60,000 readers.
It contains articles of significant interest to the business lawyer, including case law analysis, and developing trends.
(
Note: access to articles requires membership in the ABA Business Law Section -- to join,
click here.)- Private Ordering and the Proxy Access Debate
This Article examines two "meta" issues raised by opponents of the SEC's proposal to provide shareholders with rights to place director candidates on the company's proxy materials. First, opponents argue that, even assuming proxy access is desirable in many circumstances, the existing no-access default should be retained and the adoption of proxy access arrangements should be left to opting out of this default on a company-by-company basis. This Article, however, identifies strong reasons against retaining no-access as the default. There is substantial empirical evidence indicating that director insulation from removal is associated with lower firm value and worse performance. Furthermore, when opting out from a default arrangement serves shareholder interests, a switch is more likely to occur when it is favored by the board than when disfavored by the board. We analyze the impediments to shareholders' obtaining opt-outs that they favor but the board does not, and we present evidence indicating that such impediments are substantial. The asymmetry in the reversibility of defaults highlighted in this Article should play an important role in default selection. Print Article
- The SEC's Proposed Proxy Access Rules: Politics, Economics, and the Law
The U.S. Securities and Exchange Commission has proposed proxy rules that would mandate shareholder access under conditions that could be modified by a shareholder majority to make proxy access easier, but not more difficult. From a legal perspective, this Mandatory Minimum Access Regime is so riddled with internal contradictions that it is unlikely to withstand review under the arbitrary and capricious standard of the Administrative Procedure Act. In contrast, a fully enabling opt-in proxy access rule is consistent with the administrative record developed to date and can be implemented with little delay. Print Article
- Reforming the Regulation of Broker-Dealers and Investment Advisers
A key component of financial regulatory reform is harmonizing the law governing broker-dealers and investment advisers. Historically, brokers charged commissions and were regulated under the Securities Exchange Act of 1934. Advisers charged asset-based fees and were subject to the Investment Advisers Act of 1940, which contains a special exclusion for brokers. In recent years, brokers have changed their compensation structure and many now market themselves as advisers, raising questions about whether they should be treated as such. The Obama Administration's 2009 white paper on regulatory reform and draft legislation call for a fiduciary duty to be imposed on brokers that provide advice. This Article explores the debate over regulating brokers and advisers, and makes four key claims. First, changes in brokers' compensation and marketing methods vitiate application of the broker-dealer exclusion and should subject brokers to the Advisers Act. Second, changes in the nature of brokerage, spurred by changes in technology, make the broker-dealer exclusion unsustainable and Congress should repeal it. The third claim is that imposing fiduciary duties on brokers is incompatible with their historical roles as dealers and underwriters. To resolve this tension, this Article suggests a compromise that enhances brokers' duties but does not hobble their ability to perform their traditional functions. Finally, regulating brokers as advisers would overburden the U.S. Securities and Exchange Commission. This Article offers alternatives to alleviate the strain. Print Article
- Attacking the Classified Board of Directors: Shaky Foundations for Shareholder Zeal
The practice of dividing the corporate board into classes, with each class up for election in successive years, has venerable roots in corporate practice. However, it has recently come under concerted attack by institutional shareholders that fear its misuse as a takeover defense. Examining the issue from several perspectives, this Article argues that the possible misuse of the classified board as a takeover defense justifies no more than case-by-case consideration. A separate concern is that the classified board may constitute a barrier to a minority shareholder voice. While this concern has some merit, this Article argues that the classified board is a redundant barrier to a minority shareholder voice that has importance only if preceded by other reforms to enfranchise minority shareholders. Print Article
- Annual Survey of Consumer Financial Services Law
The "credit crisis" began in 2007 and built up steam in 2008, leading to an inexorable urge to enact more laws and regulations governing consumer fi nancial services. Whether or not the deep recession fueled by the crisis is over, the aftereffects will remain with attorneys, judges, and policymakers for years to come. As the pieces in this Survey highlight, federal and state legislators, regulators, and judges are more active than ever in the fi eld of consumer fi nancial services. The sheer volume of new laws, regulations, and court decisions in this field is virtually unprecedented. Print Article
- Annual Survey of Judicial Developments Pertaining to Mergers and Acquisitions
The primary charge of the Annual Survey Task Force is to summarize annually signifi cant judicial decisions in the area of mergers and acquisitions ("M&A") and to publish the summaries as a service to American Bar Association members who practice in the M&A area. The Annual Survey is written from the perspective of the practicing M&A lawyer. The summarized cases are limited to those we believe to be of greatest interest and signifi cance to a wide range of M&A practitioners. Print Article
Section News
The Section is Now Accepting Applications for the Business Law Fellows, Ambassadors and Diplomats Program.
The goal of the Business Law Fellows, Ambassadors and Diplomats Program is to increase the participation of
young lawyers, lawyers of color and lawyers with disabilities in Section activities. The Section is committed to
investing dollars in these individuals who are expected to participate actively in the substantive work of the
Section and to grow into future leadership positions.. The Program is designed not only to
develop future Section leaders but also to enhance the image of the Section among members of the
Young Lawyers Division and national bars of color in order to attract these individuals into Section membership.
The Section will select five Fellows, five Ambassadors and one Diplomat and will fund their expenses to participate
in Section activities for two years. Applications are due April 30, 2010. For more information about the program,
click here.
