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November 2008 - Volume 7 - Number 1 |
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Message from the Chair, Karl J. Ege
The first week in November finds the Nation with a new leader, an economy in recession, and our
clients and profession facing a world-wide global economic slowdown. These events will have
profound effects on our profession and Section of Business Law is planning programs and
services that address these dramatic changes. I mentioned in my last message the creation of a
Section Study Group on Financial Services Reform. At the meeting of the ABA Board of Governors last
month, upon the recommendation of ABA President Tommy Wells, the Study Group was elevated to an ABA
Presidential Task Force. This will enable the group to have the full resources of the American Bar
Association at its disposal as it analyzes likely changes to the legal and regulatory governance
and oversight structure of the financial marketplace and its participants. I will keep you apprised
regularly on the work of the Task Force as it helps to reshape the regulatory landscape in a manner
that will be in the best long-term interests of all participants in the financial marketplace.
Many of our Section committees are planning programs during the next two months that focus on the financial crisis and its impact on our members and their clients. Below, you will find a sneak peak at a paper to be presented at the Committee on Commercial Finance Meeting next week in San Francisco. At the Fall Meeting in DC, the ABA Task Force on Financial Markets Regulatory Reform will host a program entitled "Meltdown! Perspectives on the Future of Financial Services Regulation" examining the questions of what caused the current crisis, what are the implications of the government response, how should the system change and will it do so. If you cannot attend this program in person on November 21, I strongly encourage you to take advantage of the live broadcast of the program available through ALI-ABA. Given the current state of the economy and the stress that it places on all organizations, whether for-profit or non-profit, I thought it would be appropriate to share with you the state of your Section's finances. I am pleased to report that under Charlie McCallum's able leadership and our successful publications and CLE programs, the Section ended its 2007-08 fiscal year with an operating surplus. The Section currently enjoys reserves of over $7.4 million, which represents the cumulative operating surpluses generated over the Section's 70-year history, as well as a prudent and disciplined investment program that has enabled our reserves to grow steadily over the years. Each year your Section Officers and Council allocate 5% of the Section's reserves to the operating budget; this enables the Section to support its many outreach programs without increasing Section dues. We often allocate an additional portion of our reserves to the operating budget as a cushion against unexpected financial results. The Section's 2008-09 budget reflects anticipated revenues and expenses of approximately $7,600,000 as follows:
As you can see, we have been able to increase the programs and projects supported by our Section without an increase in member dues, primarily through our effective and highly-regarded publications and legal education programs. More than 80% of Section expenses are directed toward supporting you, our 60,000 members. We are committed to adhering to that model for the determinate future.
Karl J. Ege Chair, ABA Section of Business Law |
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Practice Points
Lender liability and bankruptcy issues are of increasing interest to lenders in the current economic environment.
This presentation addresses current lender concerns including (i) lender liability issues in the issuance of
commitment letters, (ii) "traditional" lender liability claims - breach of commitment, fraud in the
inducement, misrepresentation, lack of good faith and damage theories, (iii) intercreditor issues relating to
DIP financing/cash collateral, asset sales, voting rights, and other matters, (iv) recharacterization or subordination
of indebtedness, (v) cram-down of secured debt under a plan of reorganization (value, modification of terms), and (vi)
disallowance of prepayment premiums.
The changes to IRS Form 990, the required annual reporting form for nonprofits, contain many new governance
requirements that need to be tackled before the time for the next report needs to be filed. This short article
gives a summary of the important changes and steps that need to be taken to ensure compliance.
This article discusses the application and interpretation of the typical materiality
scrape provision and the buyer's basic arguments in favor of the provision. The article
then proceeds to highlight several potential issues that sellers and their counsel should
consider when reviewing and negotiating the provision.
This article discusses omissions or procedural in Delaware corporations' stock records which raise questions as
to the valid authorization of some of the outstanding stock and the Delaware Supreme Court cases in which the court
has determined that failure to comply with such formalities renders the stock in question void, i.e., not curable by
ratification. This article analyzes the cases and proposes that the Delaware courts apply the policy underlying Article
8 of the Delaware Uniform Commercial Code to validate stock in the hands of innocent purchasers for value in determining
whether stock is void or voidable.
This article discusses the recent BAP decision in Clear Channel Outdoor, Inc. v. Nancy Knupfer, 391
B.R. 25 (B.A.P. 9th Cir. 2008) where the court held that 11 U.S.C. § 363(f) required a sale price above
the amount of debt absent consent. More disturbing, the panel held that a buyer who relied in good faith on the
sale order had very limited protection and could have a junior lien reimposed on the property in the buyer's
hands. This decision may significantly decrease buyers' willingness to rely on bankruptcy court orders.
Alternative entities are used instead of the corporate structure in an array of transactions ranging from private
equity funds to property financings. The distinctions among such entities and the flexibility afforded to them must be
understood in order to identify the issues that should be addressed in the transaction documents. The issues include
applicable fiduciary duties, management consent issues and governing law provisions. This program addressed these issues
so that practitioners can prepare transaction documents which accurately reflect the intent of the parties.
Ethics CornerEthics Corner: Negotiation Ethics.
You may not lie, and you may not assist your client's fraud.
Committee SpotlightTo learn more about or join the committees that contributed to this month's practice points, just click on the committee name below.Section NewsNominations Sought for Section Leadership Positions
Do you know anyone who has what it takes to be a good Section leader? Well, the Nominating
Committee of the Section needs your recommendations for leadership positions for the 2009-2010
association year. Nominees will be selected for: Chair-elect (who automatically assumes the
position of chair the following year); Secretary (who automatically assumes the position of
vice chair the following year); one Section Delegate to the ABA House of Delegates; and five
additional Council members for a four-year term expiring in 2013 . The Nominating Committee
will take into account the following principles in making its selections. It will: select
nominees who have been substantial and active contributors to the Section; seek geographic
diversity in the leadership of the Section; strive for representation from a broad cross-section
of the areas of law represented in the Section; and seek to draw leaders from a broad cross-section
of the various sectors of practice, including corporate law departments, government, academia and
private law firms; and actively recruit nominees that reflect the diversity of the Section. Please
send your nominations by email to suedaly@staff.abanet.org
no later than December 12.
The Section is now accepting nominations for the Jean Allard Glass Cutter Award.
The Section's Committee on Diversity is seeking nominations for its 17th Annual Jean Allard Glass Cutter
Award. The Award will be presented during the Section Luncheon at the
2009 Spring Meeting
in Vancouver, Canada. 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.
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