As we approach the Holiday Season, I want to first and foremost wish you Season's Greetings and all the best for the New Year!

Personally, I am very excited about what the New Year holds for our Committee. Before I talk about some of the key dates and events to keep in mind for 2008, let me briefly recap the highlights from the Fall meeting.

By historical standards, the Fall Meeting came early this year -- November 16-17, 2007. Despite little time to plan and prepare, your fellow Committee members came through with flying colors on the programs. Friday morning kicked off with "Bankruptcy for Breakfast: The Top Ten Developments in Bankruptcy Law and Litigation in 2007." Michael Rubenstein, Bill Zewadski and Judge Stong provided an excellent overview of the year in bankruptcy litigation, including an interesting discussion on the Supreme Court's new-found interest in bankruptcy cases. By most accounts, 2008 could be a very active year in the world of bankruptcy litigation. And so, subject to your input and guidance, I think the Committee would most certainly want to continue, and possibly expand, this program for Fall 2008.

Later that morning the Committee presented "Wingman or Backseat Driver? Retaining Appellate Counsel to Maximize 'Mission Critical' Business Litigation Strategies." Kendyl Hanks did a wonderful job moderating the program, which featured exceptional speakers who provided sage advice to any litigator engaged in appellate practice. On behalf of the Committee, I want to thank again Judge Ambro, Justice Ridgely, Beth Brinkman and Lynne Liberato for serving as panelists on this terrific program.


Spring Meeting

The Spring Meeting will be held April 10-12, 2008 in Dallas, Texas. Once again Rick Lambert will be heading up the Recent Developments Program. Bob Gegios is chairing a program that will examine the impact of the Supreme Court’s much-cited decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), and Greg Varallo is chairing a committee forum on material adverse change (MAC) clauses in merger agreements. In addition to programs and subcommittee meetings, we will have our Committee dinner, although the format will be a bit different this year but equally fun and entertaining. More on this later, once plans are finalized. If you are planning on attending the Spring Meeting, now is the time to commit and register early. I hope to see you there.


Section Global Business Law Meeting

The Section is planning a Global Business Law Meeting to be held in Frankfurt, Germany, on May 28-30, 2008. Among the purposes for this meeting are the advancement of the Section’s position as a leader in global business law, as well as the recruitment of new members among expatriate U.S. lawyers residing in Europe and European lawyers. There will be CLE programs, and our Committee has been encouraged to participate. If you are interested in attending and/or have program ideas, please let me know at your earliest convenience. I would very much like to support the Section in this initiative.


Annual Meeting

The Annual Meeting is scheduled for August 8-12, 2008 in New York. We are actually in very good shape in terms of our program readiness, although we still have available a committee forum slot. If you have an appropriate topic in mind and would like to present in New York, please let me know and I will take it up with our Program Chairs.

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This tends to be a very busy time for litigators and non-litigators alike. I hope each of you finds the time to enjoy the holiday season and to take a "breather" as we approach the New Year. In reflecting upon the past year, think about some of the successes and/or achievements you may have experienced in your practice. And, of course, feel free to share them with us. After all, one of the objectives of the Committee is to share our professional good fortune so that others, especially our younger members, may learn from their Committee involvement.

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

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The Delaware Chancery Court recently issued an opinion that should be of interest to the many non-Delaware lawyers around the country who routinely provide advice on Delaware law to Delaware corporations and their directors. In Sample v. Morgan, 2007 WL 4207790 (Del. Ch., Nov. 27, 2007), the Chancery Court provided a thorough analysis of Delaware's long-arm statute, and determined that a non-Delaware lawyer at a non-Delaware law firm who provided advice on Delaware law to a Delaware corporation, and who caused a charter amendment to be filed with the Delaware Secretary of State, are both subject to personal jurisdiction in Delaware courts. See Sections 3104 (c)(1) and 3104 (c)(3) of Title 10 of the Delaware Code. This opinion also addresses the issue about when a corporate officer or its advisors may satisfy the prerequisites for engaging in a conspiracy with the corporation that they serve, and under what circumstances a corporate act can also create liability for those who caused the corporation to act.


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At the ABA Section of Business Law Fall Committee Meeting in Washington, D.C. in November, 2007, the Appellate Subcommittee of the Business and Commercial Litigation Committee presented a well-attended and highly successful Committee Forum entitled Wingman or Backseat Driver: Retaining Appellate Counsel to Maximize "Mission Critical" Business Litigation Strategies.

Chair of the Appellate Subcommittee Kendyl T. Hanks (Senior Associate in the Appellate Practice Group of Haynes and Boone, L.L.P. in New York and Dallas), moderated the panel, which consisted of two of the country’s top appellate advocates who provided a practitioner’s perspective on the value of appellate counsel: Beth S. Brinkmann, Partner and Chair, Appellate Practice Group, Morrison & Foerster LLP, Washington, D.C., and Lynne Liberato, Partner in the Appellate Practice Group and Member of the Board of Directors of Haynes and Boone, LLP in Houston, Texas. Providing a "view from the bench" were esteemed jurists Hon. Judge Thomas Ambro, Third Circuit Court of Appeals and Hon. Justice Henry DuPont Ridgely, Delaware Supreme Court. These panelists shared with the audience their extensive experience in both state and federal courts, and at both the trial and appellate levels, as they discussed the variety of ways appellate counsel can help business and industry clients maximize long-term and "mission critical" business litigation strategies before and after the appeals process begins.


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We hope you can join us in Dallas for the next ABA Spring Meeting (April 10-12). Our last spring meeting topic was "Hedge Funds in Chapter 11 Cases", which was presented by a panel lead by the new Vice Chair of the Creditors’ Rights Subcommittee, Shannon Lowry Nagle. Shannon is a partner in the New York office of O’Melveny and Myers and specializes in financial restructuring and bankruptcy. We also met at the National Conference of Bankruptcy Judges in November, where we discussed claims trading in bankruptcy, including issues negotiated between a buyer and a seller, and the new Enron decision in which the appellate court did not allow equitable subordination of a lender's claim to extend to third parties who bought the lender's claims. Shannon also lead that discussion, which was followed by an update from Tampa, Florida bankruptcy lawyer, Bill Zewadski, on how debtors residing in Florida can utilize the Florida homestead exemption, which is unlimited in amount, following the Bankruptcy Reform Act’s amendments to Section 522(b)(3) of the Bankruptcy Code (which impact the amount a debtor can claim as a homestead exemption).

At the Committee's fall meeting in Washington, DC, we again presented Bankruptcy for Breakfast. Those who made it to this early session heard Hon. Elizabeth Stong, U.S. Bankruptcy Court, E.D.N.Y, William K,. Zewadski, Trenam Kemker, Tampa, FL, and Michael D. Rubenstein, Liskow & Lewis, Houston, TX discuss the hottest developments in bankruptcy law and litigation. As usual, Judge Stong's insight from the bench was the highlight of the program.

The Subcommittee on Business Courts (Co-Chairs Rick Gross and Lee Applebaum and Vice-Chair Cory Manning) assisted with a business court program presented on October 5, 2007 at the Young Lawyers Division Fall Meeting in Charlotte, North Carolina entitled "An Introduction to Business Courts." Rick Gross moderated the program and former Subcommittee Chair and immediate past Committee on Business and Corporate Litigation Chair Mitchell Bach acted as one of the panelists.

The Subcommittee has also provided information in connection with Missouri's development of a business court pilot program and the development of a business court pilot program in Florida's 17th Judicial Circuit for Broward County, Florida. It is continuing its work on the Business Courts chapter in the Annual Review of Developments in Business and Corporate Litigation. In addition, Lee Applebaum and Mitchell Bach represented the Section in speaking at the third annual meeting of the American College of Business Court Judges on October 24-25, 2007, at a judicial education program sponsored by AEI-Brookings Joint Center for Regulatory Studies, and provided materials gathered from prior seminars presented by the Subcommittee.

The Subcommittee has also assisted in organizing a set of articles as part of a mini-theme issue on Business Courts for the upcoming edition of Business Law Today, with Applebaum contributing one of the articles on the development of modern business courts, the other articles being by Professor Ralph Peeples of Wake Forest University, Professor Lawrence Sung of the University of Maryland, the Honorable Donald Parsons of the Delaware Court of Chancery and the Honorable Joseph Slights of the Superior Court of Delaware and Ronald S. Gellert, Esquire.

The Subcommittee on ERISA Litigation will present a short program titled, "Everything You Always Wanted To Know About State Medical Plan Mandates, But Were Afraid To Ask" at the Dallas meeting.

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