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The following excerpt is taken from The M & A Process: A Practical Guide for the Business Lawyer by the Committee on Negotiated Acquisitions, Copyright 2005 by the 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, Linda C. Hayman
The use of e-mail and the Internet has spawned new international issues for
almost every business lawyer. For instance, an American company posting
contract terms on the Internet can no longer be assured of the validity of
those terms if the company does business with consumers in other countries.
For example, as noted in the November, 2005 "Annual Survey of
Internet Contracting Cases" published in The Business Lawyer, a
French court struck down 31 terms in AOL's standard form consumer agreement
as unfair or illegal. In addition, countries differ in their approaches to privacy and
data protection and in their protection of intellectual property
rights.
Numerous organizations around the globe are addressing the international
business issues raised in Internet transactions. The United Nations,
through the U.N. Commission on International Trade Law
("UNCITRAL"), has developed model laws on electronic commerce and
electronic signatures and a Convention on the Use of Electronic
Communications in International Contracts. The U.N. is
also involved in Internet governance issues through the Internet Governance
Forum. The Internet Governance Forum
convened pursuant to the Tunis Agenda for the Information Society, seeks to
bring together representatives from civil society, academia, government and
the private sector to discuss matters such as privacy, intellectual
property, trade, cybercrime and freedom of information. To stay abreast of
these issues, you should join the Subcommittee on Internet Jurisdiction and Global E-Commerce
co-chaired by Michael Geist and John Gregory, a subcommittee
of the Committee on Cyberspace Law, chaired by Candace Jones.
A number of committees in the Section of Business Law are involved in a wide
variety of cross-border business law initiatives in commercial, insolvency,
securities, cross-border acquisitions and other business law areas.
Typically these issues are monitored and analyzed by the various
subcommittees of our substantive committees. To help you identify the
various subcommittees focusing on international business issues, the
Committee on International Coordinating maintains a list of those
subcommittees whose focus is on international business issues. Click here
for that list.
In order to be certain that all of our committees and subcommittees are
focused on those international issues of most importance to the business
community, the Section also has a Committee on International Coordinating,
co-chaired by Roberta Karmel and Juliet Moringiello. The Committee on International
Coordinating is an administrative committee working with and
through liaisons from the various substantive committees of the Section of Business
Law. The role of the Committee on International Coordinating is not
to expand the mission of the Section to embrace all global issues, but
rather to help us identify with precision those that may impact the
business community.
All Section of Business Law members with an interest in the global issues of
importance to the practice of business law, and especially our
international associate members, are encouraged to follow the progress of
the many projects underway in our Section by joining the committees or
subcommittees that are working in this area.
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Linda C. Hayman
Chair, Section of Business Law
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Enterprise Wide Compliance for Large Complex Banking Organizations.
These slides cover some of the key issues in improving enterprise
compliance in Large Complex Banking Organizations—i.e., nationally or
globally oriented diversified financial institutions with a broad range of
products and services, multiple delivery channels, multiple supervisors,
significant on and off-balance sheet exposures, etc.
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Presented at the Committee on Banking Law Fall Meeting, November
2006, in Washington, D.C.
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Practice Pointers After the Bankruptcy Reform Legislation: Avoiding the Landmines.
A variety of topics concerning the bankruptcy reform legislation are
covered by these extensive materials, including the healthcare amendments,
selected consumer issues, key commercial real estate issues, and tips to
avoid the landmines.
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Presented at the Committee on Business
Bankruptcy Fall Meeting, November 2006, in San Francisco.
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Managing a Security Breach.
What happens when a company suffers a security breach of its customers' or
clients' personal data? Find out how to how to respond to the breach and
what to expect after the company has given notification to customers or
clients. Catch up on some of the recent litigation in this area. Discover
how the company can better protect the personal data of customers and
clients.
The Newest, Latest and Greatest Issues Facing Corporate Counsel Today.
Learn about the various roles played by inside corporate counsel, how they
add value to their companies, key issues for corporate counsel in U.S. and
global document retention programs, the role of corporate counsel regarding
compliance, and the importance of becoming a leader within the company.
Doing M&A Deals in Germany.
Germany is a very important market for mergers and acquisitions. These
materials outline some of the key points in doing an acquisition in
Germany.
Interference with M&A Agreements.
Exclusivity agreements, most acquisition/merger agreements and some letters
of intent include "deal protection" provisions to protect the
buyer from unsolicited competitive bids for the target. Third-party
bidders, however, sometimes enter the scene in an effort to compete for
ownership of a target company in spite of the target company's agreement,
including exclusivity covenants, with the original bidder.
Freedom of Contract and the Necessity of Careful Scrivening.
Led by Delaware, a bevy of states have inserted "Contract is God"
provisions into their LLC statutes. Proving that freedom has its risks, a
trio of recent cases demonstrates that a lawyer, especially a transactional
lawyer, who lives by the contractarian sword can get skewered by that
sword.
Federal Securities Law Reform for Smaller Companies.
A useful summary of the recommendations of the SEC Advisory Committee on
Smaller Public Companies, which was established to examine the impact of
the Sarbanes-Oxley Act and other aspects of the federal securities laws on
smaller public companies.
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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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The Section's Committee on Diversity is seeking nominations for its 15th
Annual Jean Allard Glass Cutter Award. The Award will be presented on March 16, 2007
during the Section Luncheon at the 2007 Spring Meeting in Washington, DC.
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 March 16, 2007
during the Section Luncheon at the 2007
Spring Meeting in Washington, DC. A complete
nomination package must be submitted to the
Section office by January 19, 2007. 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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