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October 2008 - Volume 6 - Number 12 |
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Message from the Chair, Karl J. Ege
The last few weeks have certainly been among the most dramatic in the lives
of business lawyers, particularly those practicing in the financial
services industry and those whose clients depend on effective and efficient
equity and debt markets to support their businesses. The Emergency
Economic Stabilization Act of 2008 has been adopted by Congress, signed by
the President, and has become law. However, we will not know for some time
whether this Act will provide the necessary liquidity to the credit markets
to enable them to return to some semblance of normal activity.
Sensing the gathering storm of the economic crisis, and in response to the Treasury Department's March 2008 "Blueprint for a Modernized Financial Regulatory Structure", in August, the Section created a Study Group on Financial Services Reform, co-chaired by Giovanni Prezioso of Cleary Gottlieb, former General Counsel of the SEC, and Bill Kroener of Sullivan & Cromwell, former General Counsel of the FDIC. Members of the Study Group were drawn from among the most experienced of our Section's members with a wide range of backgrounds and expertise in financial services. The Study Group will be focusing on legislative proposals that call for changes in the regulatory framework for financial institutions, whether based on the Treasury Department's Blueprint or otherwise. I will ask each of our Section's committees to assign an individual as liaison to the Study Group to ensure that all views and positions are heard and considered as legislation and regulatory changes are proposed. The work of the Study Group will be shared broadly with Section members through periodic reports and online access. Several of our committees with responsibility for financial services are holding meetings within the next few months. Each plans to devote considerable attention to the current economic crisis, the Economic Stabilization Act, and the impact of these events on the practices of business lawyers. We are in an unprecedented period of our Nation's history, and the bold measures currently being taken by government and the private sector will have dramatic long-term consequences for our members and their clients. It is the goal of the Section to remain as relevant as possible to our members as these developments occur. As we move full-speed into the election season, the American Bar Association has created an online resource for lawyers, bar associations and the public to ensure that elections are conducted in a fair and lawful manner. You may access this resource from the ABA Web site at www.abanet.org/vote/2008/. It has been said that to live in interesting times is both a blessing and a curse. We are certainly living in interesting times; let's hope that it proves to be a blessing for all concerned.
Karl J. Ege Chair, Section of Business Law |
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Practice Points
Credit default swaps and widespread concern about the extent to which CDSs
and various types of derivatives will necessitate restructuring billions of
dollars of debt is a subject of the evening news. This panel of experts
explains "safe harbors" and special rights and limitations of
non-debtor counterparties, including commodities and securities contracts,
forward contracts, repos, swap agreements and master netting agreements.
The panelists discuss specialized categories of these agreements being
used in current restructurings, including those of insurance companies that
offered default protection for massive amounts of asset backed securities
that have plunged in value, and energy commodities suppliers. The dollars
at issue are as staggering as the transaction complexity. This program will
help you make sense of it all, and guide your clients when they are affected
by such transactions.
Instability in the credit markets has lead to a variety of
terms and conditions in exit financing. The panel addresses
several of these terms in recent chapter 11 cases. Each
case and relevant terms will be analyzed, highlighting the
positives and negatives of the various forms of exit
financing. The panel also discusses feasibility of
the different forms pursuant to 11 U.S.C.
§1129(a)(11) as well as strategies for confirmation.
A discussion of the subprime, liquidity and capital issues of the past year
have changed how market participants are doing business. Issues addressed
include fair value accounting, civil and SEC litigation, and regulatory
initiatives.
This program presents a panel discussion relating to federal, state, and
industry initiatives on hedge funds and their regulation, including the
Best Practices Report of the Asset Managers and Investors' Committee, the
use of derivatives by hedge funds, the Treasury Blueprint, and private
offerings of securities.
After the Bear Stearns bailout, unprecedented liquidity shortages and asset
write-downs at commercial and investment banks, pressures to raise capital
and worries about what's ahead, this program addresses whether the federal
safety nets are adequate, and how they work - the Federal Reserve, FDIC, housing
GSEs and others. What are the benefits and risks of using these facilities
and how can they be deployed most effectively? How are regulators
approaching the current crisis? What should officers, directors and company
counsel be thinking about?
Practitioners from Canada, the EU and elsewhere compare and contrast to the
US experience, deal protection measures used in public company takeover
bids, including exclusivity (no shop/no talk), matching rights, break fees,
lock-up arrangements, defensive tactics (poison pills; staggered boards;
restructuring), forcing the vote, etc.
Notwithstanding current market conditions, securitization remains an
important and necessary financing tool for residential and other types of
mortgage loans and receivables. Securitization experts (1) give a primer on
what asset securitization is and why it is important, (2) discuss what went
wrong in the securitization process in recent years and what aspects of
this key financing tool need to be fixed and (3) explore the possible
changes that will be made to securitization programs and documents for
future transactions, including such matters as enhanced loan due diligence,
third party review for breaches of loan representations and warranties,
additional reporting and disclosure requirements and more detailed
servicing requirements.
The Uniform Law Commission (formerly known as the National Conference of
Commissioners on Uniform State Laws) is undertaking a drafting effort to
respond to the concern that the lack of business entity ownership
information in state filing records impeded law enforcement efforts to
combat money laundering, terrorism, and other criminal activity. This
drafting effort is ongoing and will probably result in amendments to entity
formation statutes that will identify entity ownership information in some
manner.
Committee SpotlightTo learn more about or join the committees that contributed to this month's practice points, just click on the committee name below. |
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