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November 2008 - Volume 7 - Number 1


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Past Issues


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Section Sponsored Events

Upcoming Committee Meetings

Commercial Finance
November 12, 2008
San Francisco, CA


Banking Law
November 13-15, 2008
Baltimore, MD


LLCs, Partnerships and Unincorporated Entities
November 14-15, 2008
Washington, DC


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


Save the Date

Upcoming Meeting
2009 Spring Meeting
April 16-18, 2009
Vancouver, BC


Upcoming Meeting
2nd Annual Global Business Law Forum
June 10-12, 2009
Hong Kong, China



BLT Live
Deal or No Deal? Transacting in Native America
December 10, 2008 | 1:00 - 2:00 PM ET
Webcast/Teleconference
Multi-site




CLE Connection
Section 403(b) Compliance Countdown
November 11, 2008 | 1:00–2:30 PM ET
Webcast/Teleconference
Multi-site


Is the San Francisco Health Care Security Ordinance a Roadmap for States to Avoid ERISA Preemption?
November 18, 2008 | 1:00–2:30 PM ET
Webcast/Teleconference
Multi-site


Getting the Business Deal into the Contract - Choosing the Right Words
November 20, 2008 | 1:00–2:30 PM ET
Webcast/Teleconference
Multi-site


Limited Liability Company Update: Issues to Think About in Uncertain Times
December 9, 2008 | 12:00–1:30 PM ET
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, Karl J. Ege

Message from the Chair 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:

Revenues:
Member Dues $2,060,000 27.0 %
Publications 1,700,000 22.3
Membership Services 600,000 7.9
Meetings 1,880,000 24.7
Committees 360,000 4.7
Transfer from Reserves 940,000 12.3
Miscellaneous    80,000    1.1
Total Revenues $7,620,000 100.0 %
Expenses:
Staff $1,010,000 13.2 %
Leadership Activities 280,000 3.7
Memberhip Services 1,710,000 22.5
Meetings 2,380,000 31.2
Committees 550,000 7.2
Publications 1,160,000 15.2
Outreach, Pro Bono and Special Programs    530,000    7.0
Total Expenses $7,620,000 100.0 %


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.
Signature
Karl J. Ege
Chair, ABA Section of Business Law

Practice Points

1. Nightmare on Main Street - What Keeps Lenders Up at Night?
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.
Presented by the Committee on Commercial Finance at the Committee Fall Meeting, Novermber 12, 2008.
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2. Governance Challenges for Nonprofits Posed by the New IRS Form 990.
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.
From the Subcommittee on Nonprofit Governance a Joint Subcommittee of the Committees on Nonprofit Organizations and Corporate Governance.
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3. Seller Beware: Potential Pitfalls and Unintended Consequences of the 'Materiality Scrape'.
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.
From the newsletter of the Committee on Corporate Counsel, August 2008.
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4. Void or Voidable? - Curing Defects in Stock Issuances Under Delaware Law.
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.
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5. BAP Opinion in Clear Channel Likely to Chill Credit Bids.
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.
From the Commercial Law Newsletter, newsletter of the Committees on Commercial Finance and Uniform Commercial Code, October 2008.
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6. LLCs, LLPs, DSTs, LPs: Why and How are Alternative Entities Used in Cross-Border Transactions?
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.
Presented by the Committees on LLCs, Partnerships and Unincorporated Entities and International Business Law at the 2008 Global Business Law Conference, May 29-30, 2008.
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Ethics Corner

Ethics Corner: Negotiation Ethics.
You may not lie, and you may not assist your client's fraud.
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

Nominations 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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For more news and updates visit the Section's newsletter index.
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