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September 2008 - Volume 6 - Number 11


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Past Issues


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Section Sponsored Events


Committee on Business Bankruptcy 2008 Fall Meeting
September 24 - 27, 2008
Scottsdale, AZ



Committee on Mergers and Acquisitions 2008 Fall Meeting
October 17 -18, 2008
Carlsbad, CA




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



BLT Live
Weird Collateral: Benefits and Challenges of Novel Sources
October 8, 2008 | 1:00 PM EST
Webcast/Teleconference
Multi-site




CLE Connection
What 401(k) Plan Fiduciaries Must Tell Participants about Their Investment Options: New DOL Guidance
September 17, 2008 | 1:00–2:30 PM EST
Webcast/Teleconference
Multi-site

HRAs and HSAs: The Basics and New Developments
September 25, 2008 | 1:00–2:30 PM EST
Webcast/Teleconference
Multi-site

New IRS Form 990 Focus on Nonprofit Governance: Is Your Board Ready?
October 1, 2008 | 1:00–2:30 PM EST
Webcast/Teleconference
Multi-site

Securities Fraud
October 2 - 3, 2008
National Institute
Hyatt Regency-Crystal City
Arlington, VA



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

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


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Best of Business Law Books

Smell Test: Stories and Advice on Lawyering
By James C. Freund
ABA Section of Business Law
Copyright 2008

Book Excerpt

The following excerpt is taken from Smell Test: Stories and Advice on Lawyering, by James C. Freund, Copyright 2008 by 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


Click Here to Purchase Online



Message from the Chair, Karl J. Ege

Message from the Chair Maintaining Relevance

For a membership organization to thrive and grow, particularly in dynamic times, it must remain relevant to the day-to-day challenges faced by its members. The ABA Section of Business Law is keenly focused not only on maintaining relevance to you as a business lawyer but also enhancing the value you receive as a member.

In January 2008, the Section's leadership engaged in a strategic planning exercise, the third in a series of such exercises conducted by the Section since 1994. At this year's session, a cross-section of members and Section leaders examined the changing nature of business law and the manner in which these changes impact our members and our mission. The end product was a strategic plan (click here to review the executive summary) that will guide the Section's priorities in the coming years.

One of the key issues identified in the plan is the need for the Section to continue to evolve in form and substance as the practices of our members respond to the rapidly changing legal, economic and social dynamics that characterize the modern practice of business law. The Section has formed a Council-level planning committee that will focus on identifying developing areas of business law and legal practice and recommending those changes in committee, subcommittee and organizational structures that are necessary to best address these changes.

The new Council Planning Committee will be implementing another important recommendation from the strategic planning session, the development of an annual "business plan" for the Section. We are, after all, the American Bar Association Section of Business Law, and it therefore seems appropriate that the Section be managed and operated in a "business-like" fashion. Notwithstanding the relatively short time between the approval of the strategic plan by the Section Council at the Spring Meeting in Dallas in April, a core group of Council members and the Section Officers developed a Section Business Plan for the coming year. That Plan, which was adopted by the Section Council at the ABA Annual Meeting in August and is available for your review on the Section's Web site, provides goals and performance benchmarks which will guide the Section officers as we manage your Section in the coming months. I will provide members with periodic reports throughout the year on our progress toward achieving the goals set forth in the Section's Business Plan.

A key initiative which was identified in our strategic planning exercise, incorporated in our strategic plan and fleshed out in this year's Business Plan was developing a comprehensive management plan for the vast volume of intellectual capital produced by the Section, its committees and its members. As recommended by the Business Plan, a new officer-level position of Content Officer has been created and a Content Committee has been established with the task of organizing the Section's content and determining the best way to deliver it to our 60,000 members in a variety of media, whether through print, electronic, streaming video, audio, or internet-based applications. The Section's leadership intends to provide easy and cost-effective access to the intellectual capital produced each year by the Section, especially to the vast majority of our members who are unable to attend our meetings. The Content Committee is a key element in achieving that goal. I am pleased to announce that Scott Ludwig of Birmingham, Alabama, former Chair of the Section's Publications Board, has agreed to serve as our first Content Officer, subject to final approval of this new officer position by the ABA Board of Governors.

The Council, Committee Chairs and Section Officers will all join me in the coming year to meet our goal of maintaining the Section as a nimble, agile and opportunistic organization, at all times focusing on the need to remain "relevant" to its members in a dramatically changing legal and business environment. I have inherited the leadership of a Section that is as dynamic and relevant today as at any time during its nearly 70-year existence. I am indebted to our former Chair, Charlie McCallum for his foresight in expanding our horizons to the global marketplace. It is his legacy to the Section and we, the current leadership, intend to carry that vision further as we position the Section of Business Law as the recognized and respected resource for business lawyers worldwide.
Signature
Karl J. Ege
Chair, Section of Business Law

Practice Points

1. Protecting the Corporate Attorney-Client Privilege and Related Ethical Considerations
This program explores strategies for protecting the corporate attorney-client privilege in several different contexts, including governmental investigations, internal corporate investigations and litigation involving former directors and officers, with a focus on recent state and federal case law.
Presented by the Committee on Business and Corporate Litigation at the 2008 ABA Annual Meeting.
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2. Ugh! The Investigation Reveals Misconduct: Advice, Ethical Considerations, Revelations and Pearls of Wisdom to Corporate Counsel on Next Steps (and Missteps!)
An expert panel discusses what happens after an investigation shows that there is a problem: what steps should be taken, how to respond to claims from regulatory agencies claims, what evidence must be preserved, how is D & O coverage preserved, and practical tips on surviving the experience. The panel reviews counsel's ethical dilemma balancing assertive advocacy for the client and avoiding personal liability in the toxic cocktail of multiple criminal, regulatory and civil proceedings.
Presented by the Committees on Corporate Counsel, Corporate Compliance, Federal Regulation of Securities, and White-Collar Crime at the 2008 ABA Annual Meeting.
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3. Securitonomics II/ Cheat Sheet on Asset and Mortgage Backed Lending
This paper clearly explains the effect (i) pricing off swap spreads, (ii) securities ratings; and (iii) the impact of credit default swaps on the asset and mortgage backed securities market.
From "Topsy Turvy Markets? When Lenders and Credit Providers are in Financial Trouble," a program presented by the Committees on Commercial Finance, Securitization and Structured Finance and Uniform Commercial Code at the 2008 ABA Annual Meeting.
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4. Bridge Financings of Emerging Growth Companies - What Lawyers Representing Investors and Companies Need to Know in Structuring Bridge Loans to Fund a Company Before a Series A Round or Bridging From One Series of Preferred to the Next
Bridge financings are often critical for the survival of emerging growth companies - particularly in challenging economic times. This program covers what lawyers representing investors and companies need to know in structuring bridge loans to fund an emerging growth company before its Series A round or from one financing round to the next. Panelists focus on key issues and pitfalls to consider in these transactions. Sample bridge documents are presented.
Presented by the Committee on Private Equity and Venture Capital at the 2008 ABA Annual Meeting.
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5. Structuring the M&A Deal - Tax & Legal Considerations
The program focuses on structuring the purchase and sale of a closely held business by either a private equity firm or a public company. Both buyer and seller considerations are addressed from legal, tax and investment banking standpoints.
Presented by the Committees on Taxation and Mergers and Acquisitions at the 2008 ABA Annual Meeting.
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6. Can the Creditors Do It?: A Pan-Circuit Review of Creditors' Rights to Derivative Standing Under Chapter 11
This article reviews the decisions addressing whether a creditor is able to obtain permission from the bankruptcy court to pursue avoidance actions on behalf of the estate when the trustee (or debtor in possession) is unable or unwilling to pursue those actions.
From the Business Bankruptcy Newsletter, the Newsletter of the Committee on Business Bankruptcy, June 2008.
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Ethics Corner

Lawyer Serving on Board of Client
There can be obvious advantages for a lawyer to sit on the board of a corporate client, particularly if the client is a large, successful, respected entity. In such a case it is likely the other board members are successful and powerful people who can be sources of much business for the lawyer/director's law firm.
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!
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For more news and updates visit the Section's newsletter index.
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