2012 ABA Annual Meeting

Rick Alexander, Ken Nachbar, Lou Hering and Tarik Haskins served as program speakers for The Business Law Section of the American Bar Association (ABA) at the 2012 ABA Annual Meeting in Chicago, August 3-5, 2012.

Rick’s program, Dual Class Stock: Value Enhancer or Corporate Governance Killer? discussed the rational for the Dual Class structure, the relation of the structure to effective corporate governance and economic benefits and related costs, and proposals to replace structure with one share one vote regime. He was joined by Hon. Myron T. Steele, Chief Justice, Supreme Court of Delaware, Stephen L. Brown, Senior Director of Corporate Governance & Associate General Counsel, Advocacy & Oversight, TIAA-CREF Financial Services, Spencer G. Smul, Senior Vice President, Deputy General Counsel and Secretary, The Estée Lauder Companies Inc., Christianna Wood, Director, H&R Block, Janice Hester-Amey, Portfolio Manager, California State Teachers Retirement System, and Charles M. Elson, Director, John L. Weinberg Center for Corporate Governance, University of Delaware.

Ken’s program, Structuring and Enforcing Rights and Preferences of Preferred Stockholders: What Recent Delaware Case Law Means for Issuers, Preferred Stockholders and Common Stockholders - How Much Can Preferred Be Preferred?, discussed several Delaware cases from the perspective of an issuer, a preferred stockholder, and a common stockholder to illustrate how valuation professionals value preferred stock, the relationship between contract rights and preferences of preferred stockholders, and the interplay of contract law and fiduciary duty in determining the rights and duties affecting holders of preferred stock, based on the seminal decisions from the Delaware courts in the last several years. Ken was joined by Hon. Myron T. Steele, Chief Justice, Supreme Court of Delaware, Stephen P. Lamb, Partner, Paul Weiss Rifkind Wharton & Garrison LLP, Teri Lynn McMahon, Partner, Alston & Bird LLP, Jennifer Muller, Director, Houlihan Lokey, and Howard S. Zeprun, Chief Administrative Officer and General Counsel, Trident Capital.

Lou’s program, Issues Confronted in Local Counsel Opinions, examined the types of legal opinions that are typically requested of and given by local counsel in multistate financing and corporate transactions. The panelists discussed the appropriate allocation of opinions between local counsel and lead counsel to the borrower, and the expectations of recipient’s counsel as to local counsel opinions, the trend toward unbundling the opinions of lead counsel and local counsel instead of issuing opinions in reliance on the opinions of one another, local counsel opinions on corporate matters such as entity status, power and authority and qualification to do business as a foreign entity in the local jurisdiction, including opinions as to Delaware entities, Exhibit 5 opinion practice involving local counsel, local counsel opinions as to real estate collateral, including the recordability of mortgages, mortgage taxes and the validity and perfection of mortgage liens in the local jurisdiction, local counsel opinions as to perfection of UCC security interests (including fixture filings) in the local jurisdiction, other frequently requested local counsel opinions, including no violation of laws, government approvals, choice of law, the necessity of lenders to qualify in the local jurisdiction, the liability of lenders for taxes in the local jurisdiction and anti-deficiency laws, and opinions to be avoided by local counsel, including no violation of contracts, no litigation and all customary provisions. Lou was joined by Donald W. Glazer, Attorney, Newton, MA; Edward J. Levin, Partner, Gordon Feinblatt LLC, and Lydia C. Stefanowicz, Partner, Edwards Wildman Palmer LLP.

Tarik served as speaker for two programs: The Tax Gobbledygook in LLC Agreements: How Business Lawyers Can Make Sense of “Capital Accounts” and “Allocations” and Why It Matters focused on how LLCs are being used in deals today and how the “tax language” of the LLC agreement can have real non-tax business consequences and showed how the provisions on contributions, allocations, distributions, and capital accounts, though scattered around the typical LLC agreement, fit together like pieces of a puzzle and can affect both tax and non-tax aspects of the deal. He was joined by Christopher M. Rosselli, General Attorney - Corporate Transactions, Delta Airlines.

Tarik’s second program, Splitting Up the Pie - Equity Compensation in Alternative Entities, discussed the tax, state and federal securities, and document drafting issues associated with granting equity interests as compensation to owners, employees, and contractors by LLCs, partnerships, and other unincorporated entities and contrasted these issues with the corresponding issues arising in the corporate context. He was joined by Robert Keatinge, Of Counsel, Holland & Hart LLP, and Bonnie J. Roe, Partner, Cohen & Gresser LLP.