I am delighted to have this opportunity to write my first column as Chair of the Committee. There is much to discuss, but first, I would like to extend a heartfelt "thanks" to our former Chair, Mitch Bach.

As many of you know, Mitch stepped down as Chair of the Committee at the conclusion of the Annual Meeting in San Francisco. At the Committee dinner, we presented Mitch with a token of our appreciation, but that small gift cannot begin to express our gratitude for his commitment to the Committee. Under Mitch's leadership, the Committee substantially increased its membership and added several new subcommittees. Most importantly (in my view), Mitch is responsible for attracting many young and dynamic members to the Committee, many of whom have become quite active and have taken on leadership positions, including chairing subcommittees. This bodes well for the future of the Committee. And let's not forget the fun factor; Mitch would always be the first to raise a glass to the many successes of our Committee and its members. That is a tradition we will most definitely continue in his honor. Thanks Mitch.

As I am quickly learning, there is a considerable amount of behind-the-scenes planning and administrative work required to make the Committee run smoothly. As Mitch would be the first to tell you, his assistant, Ann Delaney was instrumental in this process and deserves special recognition. On behalf of the Committee, I want thank Ann for her invaluable service to us.

I would also like to take this opportunity to thank Chief Justice Steele for his service as a judicial representative to the Committee. The Chief Justice never hesitated to take on any Committee-related task, large or small, and he represented the Committee with distinction in serving on (and enlivening) numerous panels over the years. The Chief Justice is now a Judicial Advisor to the Business Law Section, and so hopefully we will continue to enjoy his company at Section meetings. The good news on this front is that the Chief Justice's colleague on the Supreme Court of Delaware, Justice Henry duPont Ridgely, has agreed to serve as one of our new judicial representatives. Welcome, Justice Ridgely.


Looking Back: The San Francisco Annual Meeting

As of this writing, we are just coming off the Annual Meeting in San Francisco and by all accounts it was an excellent meeting for us. The Committee sponsored several well-attended programs and forums, including: "Taming The Stock Option Beast: The Cause, Prevention and Remediation of Stock Option Improprieties;" "When Different Cultures Meet: Mastering Cross-Cultural Considerations in Business and Litigation;" "An Introduction to Business Courts and Complex Litigation Courts: What Works Best and Why;" and "Hot Topics in Commercial and Indian Gaming Law."

Although I had a conflict and could not attend the Cross-cultural program, I heard it was top-notch. As some of you may know, one of the initiatives of the new Chair of the Business Law Section (Charles McCallum) is to address the globalization of business law through programs, projects and the like. The Cross-cultural program, chaired by Bob Gegios, served as a fitting kick off to that initiative, and is the kind of cutting-edge program that we should strive to present and/or sponsor as a Committee.


Looking Ahead

Plans are well underway for our Committee's Fall Meeting, to be held at the Ritz Carlton in Washington, D.C. on November 16-17, 2007. As usual, we'll have a reception and dinner on Thursday evening (the 15th), and programs on Friday and Saturday. "Bankruptcy for Breakfast" is on the menu again for Friday morning, and later that day members of our Appellate Subcommittee will be taking the lead in presenting a program on whether and when to retain appellate counsel. As perhaps the epicenter of appellate counsel practice, Washington seems a fitting place to feature this topic. I hope you can join us for the meeting, and please watch for further details.

Finally, looking a bit further out, the Spring meeting in Dallas is just around the corner. Several of our Committee members call Dallas home, and they have graciously come forward with some intriguing ideas for the Committee dinner. Block out April 10-13, 2008, on your calendar, as you will want to be in Dallas then. Perhaps the best news about the Spring meeting is that we already have first-rate programming shaping up, in addition to our always popular "Recent Developments" program. I will be updating you on happenings for the Spring meeting later this year.

I look forward to seeing you in Washington. And, as always, please feel free to bring a friend or colleague.

Peter J. Walsh, Jr.
Chair, Committee on Business and Corporate Litigation
Potter Anderson & Corroon LLP
pwalsh@potteranderson.com

A golden age for white collar criminal prosecutions has dawned. Since mid-2002, the Department of Justice ["DOJ"] has charged more than 900 individuals in more than 400 corporate-fraud cases and more than 500 of those defendants have been convicted.

The Key Document in this area is the DOJ's memorandum entitled "Federal Prosecutions of Corporations." Apart from other usual factors in determining whether to charge a corporation, the following factor plays a prominent role in deciding the "proper treatment" of a corporate target:

"the corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents..."

Typically, for company counsel, the game begins when the company receives a grand jury subpoena or one of its officers or employees receive a subject letter. A grand jury subpoena means that serious inquiries are being made regarding potential criminal liability (notwithstanding the Assistant United States Attorney's [AUSA] assurances) of the corporation and / or its senior management. For a public corporation, this may mean that it has a duty to report the investigation to the SEC - a duty to report any proceedings "known to be contemplated by government authorities." Whether this includes grand jury proceedings is an open question.


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The Subcommittees on Corporate Litigation and Counseling and Directors and Officers' Liability and Indemnification held their customary joint meeting at the ABA Annual Meeting. Topics discussed included recent decisions involving private equity transactions, derivative suits and the corporate attorney-client privilege, as well as the D&O coverage and indemnification implications for each. We also discussed possible topics for presentations at future meetings.

We have co-authored the "Environmental Litigation" chapter in the past several editions of the Annual Review, and recently were appointed the new Co-Chairs of the Environmental Litigation Subcommittee.

We welcome your ideas about future Subcommittee programs, as well as possibilities for collaboration with other subcommittees or groups within the Committee, Section, or ABA. For information about the Subcommittee, or environmental litigation practice, please do not hesitate to contact John Fehrenbach, Subcommittee Co-Chair, at (202) 282-5925, or jfehrenbach@winston.com, or Susan MacIntyre at (202) 282-5840, or smacintyre@winston.com.

The Tribal Court Litigation Subcommittee is pleased to have published the Tribal Court Litigation chapter to the 2007 edition of Annual Review of Developments in Business and Corporate Litigation.

The chapter is hands down the most comprehensive discussion of cutting edge tribal transactional and litigation issues that exists in Legal America. If - or when - an Indian legal issue comes across your desk, you'll want to turn to it.

The Subcommittee is also excited to have co-sponsored a "Hot Topics in Commercial and Indian Gaming Law" program at the Annual Meeting in San Francisco, along with our close friends, the Gaming Law Committee.

We welcome your ideas about possibilities for collaboration with your subcommittee or groups within the Committee, Section or ABA. For information about the Subcommittee, or tribal business or litigation practice, please do not hesitate to contact Heidi Staudenmaier ((602)382-6366 or hstaudenmaier@swlaw.com) or yours truly ((206) 628-2780 or ggalanda@wkg.com).

The Subcommittee on Business Courts has a new vice-chair, Cory E. Manning of Nelson Mullins Riley & Scarborough LLP. Rick Gross and Lee Applebaum, the past chair and vice-chair, will continue as co-chairs. During the Annual Meeting in San Francisco, the Subcommittee presented a program at the Business and Corporate Litigation Committee's Committee Forum: "An Introduction to Business Courts and Complex Litigation Courts - What Works Best and Why." The Subcommittee also provided original materials to accompany the panel discussion. We are assisting with a business court program being presented on October 5, 2007 at the Young Lawyers Division Fall Meeting in Charlotte, North Carolina. The Subcommittee has also provided information in connection with South Carolina's development of a business court pilot program and has expanded the scope of its work on the Business Courts chapter in the Annual Review of Developments in Business and Corporate Litigation.

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