eSource

July 2008 - Volume 6 - Number 10


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Section Sponsored Events


Upcoming Meeting
2008 Annual Meeting
August 8-11, 2008
New York, NY



Upcoming Meeting
2008 Fall Meeting
November 21-22, 2008
Washington, DC


BLT Live
The Subprime Crisis and Credit Crunch: Legislation, Regulation, and Litigation on the Rise
August 13, 2008 | 1:00 PM EST
Webcast/Teleconference
Multi-site



For information on future programs, check out the
Section Meetings Calendar.
Calendar

For more information on upcoming Committee Meetings contact ruppr@staff.abanet.org.



Message from the Chair, Charles E. McCallum

Message from the Chair It has been a privilege and an honor for me to serve as Chair of the Section of Business Law over the last year. I am confident that the Section will enjoy continued growth and success under the leadership of my successor, Karl Ege. The Section Officers have all worked closely and collegially with the Council, the Committee Chairs, and our superb Staff to develop sound plans and a solid foundation for the Section's future.

This is a good time to become more actively involved in the Section. It will not only improve your knowledge and skills and build important networking relationships with practice leaders around the world, but will also deepen your professional satisfaction. How can you get involved? Nothing could be easier. Just click here.


A Year of Progress

In my September 2007 eSource Message, I outlined three initiatives we would pursue during my term as Section Chair:

  • Committee Empowerment - empowering our Committees to take the lead in achieving the Section's mission;

  • Globalization - expanding our perspective from domestic business law to global business law, and expanding Section membership targets from primarily North American business lawyers to business lawyers from all over the world; and

  • Professionalism - renewing and pursuing our commitment to the ethical foundations of the business law practice.

During the year there has been significant progress on all three initiatives:

Committees

We have conducted a series of focused Committee membership recruitment campaigns. The results are dramatic. For example, our Committee on Corporate Governance is now at 1,900 members, up 62% after its recruitment campaign, while the Committee on Business and Corporate Litigation grew to over 1,800 members as a result of its campaign. And most recently, the Committee on Negotiated Acquisitions surpassed 3,000 members.

These increases in Committee membership have translated to growth in overall Section membership, both through new members and better retention. The Section has posted year-over-year increases in overall membership for the last 4 months, and is on track to hit the 60,000 member level by the end of August.

There is palpable excitement in our Committees, all of which have become more active than ever, tackling big and important projects, staging excellent programs, and producing outstanding publications, including many excellent Committee eNewsletters.

At the Annual Meeting next month we will launch new Committees on Securitization and Structured Financing, Project Finance, and Governmental Corporations, and a new Joint Task Force on Governmental Anti-Money Laundering and Anti-Terrorism Initiatives. We now have 74 Committees, more than 50 of them substantive Committees addressing all aspects of global business law.

Global Business Law

Virtually all of our substantive Committees have active subcommittees with a global/transnational focus. Our Committee on International Business Law, which plays a leading and coordinating role continues to grow; more than 20% of its almost 1,100 members are lawyers who live and work outside the United States.

We held our first ever Global Business Law Conference in Frankfurt, Germany, at the end of May. The well-attended Conference featured more than 20 programs on such topics as cross-border legal opinions, international standards of corporate governance, current developments in global mergers and acquisitions, and issues in global derivatives trading and regulation.

A second Global Business Law Conference is being planned for Hong Kong in June 2009, and the Section Officers are thinking about London as a possible venue for a third Conference in the Fall of 2009. These Conferences target lawyers living and working outside of North America in addition to North American-based practitioners with transnational practices. Programming at our Spring, Annual, and other meetings makes similar substantive content readily accessible to our North American membership.

As a result of our expanded focus on global business law, we are seeing significant growth in Section membership from the ranks of Associate International Members of the ABA (non-U.S. lawyers) and U.S. lawyers living and working outside the United States. These categories now account for 2,000 members of our Section.

Professionalism

The Section's Committees on Professional Responsibility, Pro Bono, and Diversity continue to play active and vital roles in the Section. Our Committees on Corporate Counsel (currently with 1,251 members) and Corporate General Counsel are both growing and expanding their reach. The Section is the administrative home for, and well-represented on, the critically important ABA Task Force on Attorney-Client Privilege.
Signature
Charles E. McCallum
Chair, Section of Business Law

Practice Points

1. The Subprime Mortgage Mess and Its Potential Effect on Communities and Community Development.
The program provided an overview of the mortgage lending process, addressed the mortgage system collapse and resulting high foreclosures, and examined the complexities associated with remedying the short-term and long-term ill effects of the mortgage crisis.
Presented by the Committees on Community Economic Development, Banking Law, and Consumer Financial Services at the Spring Meeting, April 2008.
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2. LLC or Not LLC - What Should be the Question: Consequences of Entity Choice.
This program featured a scenario based discussion regarding multiple business formation circumstances, such as start-ups, acquisitions or mergers. It addressed a) the level of fiduciary responsibility desired or required in the new or resulting entity; b) tax and liability issues that often affect formation decisions, and c) the practical and ethical problems if financial difficulties or bankruptcy ensue.
Presented by the Committees on Business Bankruptcy, LLCs, Partnerships and Unincorporated Entities, and Middle Market and Small Business at the Spring Meeting, April 2008.
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3. When Bad Things Happen to Good Lawyers: Ethical and Practical Issues.
This committee forum explored the situations that can cause good lawyers to make bad decisions that cumulatively can lead to serious personal and professional consequences under applicable standards for business and professional conduct and applicable ethics requirements. Practical situations and ways to recognize and avoid potential problems were discussed.
Presented by the Committee on Corporate Counsel at the Spring Meeting, April 2008.
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4. Earth, Wind and Soybeans: The State of Alternative Energy Finance.
This program explored the important questions in the alternative energy legal sphere: Is America finally serious about building alternative power facilities? What issues and problems arose over the past year in connection with financing these projects? What are the main economic drivers of alternative energy development? What financing structures are being used most often? What challenges and opportunities are likely in 2008?
Presented by the Committees on Commercial Finance, Business Financing, Energy Business, and Uniform Commercial Code at the Spring Meeting, April 2008.
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5. Digging for Dirt: Uncovering the Compliance Risks in an Organization.
A discussion of the legal context for and the process of identifying compliance risks in a business organization, followed by an in-depth examinations of the process of identifying compliance risks related to product manufacture and international trade-and customs-related operations.
Presented by the Committee on Corporate Compliance at the Spring Meeting, April 2008.
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6. Top Ten LLC Federal Tax Authorities.
There are many hundreds of federal tax authorities potentially critical to tax accountants and lawyers handling federal tax issues for their LLC clients. These authorities take many forms, from Internal Revenue Code provisions to decisions by the Tax Court and other federal courts to IRS revenue procedures and private letter rulings. In this article, a practitioner discusses the 10 individual authorities and closely related pairs of authorities that he believes every accountant and lawyer who handles LLC federal tax matters should know about.
From Tax News for Business Lawyers, the Newsletter of the Committee on Taxation, Summer 2008.
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7. The Forthright Negotiator Principle and the Legitimate Role of Ambiguity in Contracts.
When drafting a contract, it's always best to minimize ambiguity, right? As with so much in the law, the answer, it turns out, is a clear "it depends." There has been much recent discussion of the so-called forthright negotiator principle. Some of it seems to misapprehend the principle, suggesting it gives rise to an affirmative duty to eliminate ambiguity. It does not. It is simply one of a number of principles of contract interpretation used by, among others, the Delaware courts.
From The Commercial Law Newsletter, the joint Newsletter of the Committees on Commercial Finance and Uniform Commercial Code, July 2008.
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8. Three Recent Significant N.Y. Court of Appeals Decisions.
In a period of three months, the N.Y. Court of Appeals (the state's highest court) issued decisions in three significant cases involving unincorporated entity law. The first case decided an issue of LLP law; the second, one of LLC law; and the third, one of limited partnership law. In all three cases there were strenuous dissents.
From Pubogram, the Newsletter of the Committee on LLCs, Partnerships and Unincorporated Entities, July 2008.
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9. Responsible and Reasonable Gaming Programs.
The Merriam-Webster Dictionary defines "entertainment" as an "amusement" or "diversion." Gaming in the United States exceeds all other forms of entertainment combined, with revenue in excess of fifty billion dollars. The primary objective of Responsible Gaming programs is to keep gaming within the parameters of "amusement" by providing a safety net. Responsible Gaming programs are often a result of legislative requirements that are attached to the gaming regulatory statutes and rules in the various gaming jurisdictions.
From Gaming Law Gazette, the Newsletter of the Committee on Gaming Law, June 2008.
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Ethics Corner

Doing Business with Clients; Taking Securities in Lieu of Fees.
Suppose a lawyer wishes to purchase a house from a client or wants to start a non-law business in partnership with a client - a saloon, perhaps. Or, suppose a lawyer wants to take securities from a client in lieu of fees. The analysis starts with ABA Model Rule 1.8(a), of which every state has a version.
Presented by the Committee on Professional Responsibility, William Freivogel, Chair.

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!

Section News

The ABA's Zip Code Has Changed.
Effective immediately, the zip code of the ABA's Chicago office will be 60654-7598. Mail using the old zip code will continue to be delivered for one year after the change goes into effect. Please update your contact information.
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For more news and updates visit the Section's newsletter index.
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