Business Law News

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About Business Law News

The Business Law News is the official publication of the State Bar of California's Business Law Section, and is sent automatically to all members of the Business Law Section. To subscribe, simply join the Section.

Tables of contents of recent issues are below. Section members can request copies of articles in our Members Only Area.

For more information about the Business Law News, including how to submit articles and otherwise become involved, see Editorial Board for Business Law News and the Annual Report.

Current Issue

Issue Number 3, 2012

• Governor's Reorganization Plan Met With Reservation
  By Jill C. Kovar and Keith Paul Bishop
  Page 1
  
  

  The California Legislature has approved a plan proposed by Governor Jerry Brown to reduce the number of agencies in the executive branch from twelve to ten. The California Business, Transportation and Housing Agency (BTHA) currently includes both the Department of Corporations (DOC) and the Department of Financial Institutions (DFI). Under the Governor’s plan, the “business” and “housing” parts of BTHA will be absorbed by the newly-created Business and Consumer Services Agency (BCSA), and the “transportation” part will be organized under the new Transportation Agency. DOC and DFI will be merged into a new Department of Business Oversight (DBO) as the Division of Corporations and the Division of Financial Institutions. This article explores the administrative structure of the reorganized entities, the alternate paths available under California law to reorganize the executive branch and the path selected by the Governor, various concerns with the reorganization plan, and the further legislation that will be required to implement the plan.
  
   Jill C. Kovar is a senior associate with Aldrich Bonnefin & Moore, PLC where she focuses on consumer lending compliance. She currently serves as the Vice Chair of Programming of the Consumer Financial Services Committee of the Business Law Section of the California State Bar. She may be contacted at jkovar@abmlawfirm.com. Keith Paul Bishop is a partner with Allen Matkins Leck Gamble Mallory & Natsis LLP.  He previously served as California Commissioner of Corporations, as Deputy Secretary and General Counsel of the California Business, Transportation and Housing Agency, and as Interim Savings and Loan Commissioner. He may be reached at kbishop@allenmatkins.com.

• In Memoriam: Edwin I. Lasman
  Page 2
  
  
• Executive Committee: Message from the Chair
  By Donna Parkinson
  Page 8
  
  
• BLN Editorial Board: Message from the Editor-in-Chief
  By April E. Frisby
  Page 9
  
  
• BLN Editorial Spotlight
  By Megan Callan, Editor
  Page 10
  
  
• Covenants Not to Compete in Limited Liability Company Operating Agreements May Be Enforceable Without Payment for Goodwill
  By Jennifer Redmond, Jessica S. Fairbairn and Eleonor Ignacio
  Page 11
  
  

  This article argues that payment of goodwill should not be required for an LLC to enforce a non-compete provision, whether the member’s departure is voluntary or involuntary.
  
  Jennifer Redmond is a partner in the Labor and Employment Practice Group of Sheppard Mullin Richter & Hampton LLP in the San Francisco office. She may be reach at jredmond@sheppardmullin.com. Jessica S. Fairbairn is an associate in the Labor and Employment Practice Group of Sheppard Mullin Richter & Hampton LLP in the San Francisco office. She may be reached at jfairbairn@sheppardmullin.com. Eleonor Ignacio is a research attorney at the Superior Court, County of San Mateo.

• Rebuttal: LLCs Enforcing Covenant Not to Compete Upon Member Withdrawal Required to Make Goodwill Payment
  By Richard C. Darwin
  Page 16
  
  

  This article argues that when a limited liability company forces a departing member to sell his or her interests back to the company at a penalty price (i.e., a price that does not take goodwill into account), the company cannot simultaneously attempt to enforce a non-compete provision.
  
  Richard C. Darwin is a shareholder in the San Francisco office of Buchalter Nemer. He may be reached at rdarwin@buchalter.com.

• The Supreme Court Opens the Road to Healthcare Reform, But Will California Meet the Challenge
  By Craig B. Garner and Julie A. Simer
  Page 20
  
  

  The U.S. Supreme Court has upheld the constitutionality of the Affordable Health Care Act. This article explores the basis for the Court’s decision that (1) the Act’s individual mandate is constitutional, and (2) although the Medicaid expansion provisions in the Act survive,  the federal government is prohibited from penalizing states that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding. The authors examine the consequences for California of these two provisions of the Act.
  
  Craig B. Garner specializes in health care and is an adjunct professor of law at Pepperdine University School of Law. He may be reached at craig@craiggarner.com. Julie A. Simer is a shareholder of Buchalter Nemer. She currently is the Chair of the Health Law Committee of the Business Law Section of the California State Bar. She may be reached at jsimer@buchalter.com.

• When Is a Director Not a Director?
  By Lisa A. Rundquist
  Page 25
  
  

  This article explains the effect of AB 1233 which amends Corporations Code section 5047 to clarify that (1) if a nonprofit corporation’s bylaws provide that a person does not have the right to vote, that person is not a “director” as the term is used in the Corporations Code, and (2) if a person is referred to as being an ex officio director without any stated limitation on voting rights, that person is a director with the right to vote. The author recommends that any non-profit corporation with bylaws that refer to non-voting directors clarify whether such a person is a director and has a vote or is merely an advisor to the board.
  
  Lisa A. Runquist is a principal of Runquist & Associates. She may be reached at lisa@runquist.com.

• Article 9 -- Foreclosure Sales / A Possible Safe Harbor?
  By Barry V. Freeman
  Page 27
  
  

  This article explores an alternate approach and possible “safe harbor” for a UCC Article 9 foreclosure sale of personal property. The author suggests that a joint sale by the assignee who concurrently conducts the sale of the collateral as assignee in an ABC (assignment for the benefit of creditors) sale and as the sales agent for the secured party, minimizes potential challenges to the sale.
  
  Barry V. Freemen is a partner in the Corporate and Bankruptcy Reorganization Group of Jeffer Mangels Butler & Mitchell LLP, and is the past Chair of the Loan Documentation Committee of the Business Law Section of the American Bar Association. He may be reached at bfreeman@jmbm.com.

• Three Recent Delaware Cases Address LLC and LP Fiduciary Duties
  By Phillip L. Jelsma
  Page 30
  
  

  This article discusses three recent Delaware Chancery Court cases that hold that any waiver or elimination of fiduciary duties requires explicit language in the operating agreement or limited partnership agreement.
  
  Phillip L. Jelsma is a partner in the San Diego office of McKenna Long & Aldrich LLP where he specializes in tax law, and is the immediate past Chair of the Partnerships and Limited Liability Companies Committee of the Business Law Section of the California State Bar. He may be reached at pjelsma@mckennalong.com.

Tables of Contents of Recent Issues

Issue Number 3, 2012 Issue Number 2, 2012 Issue Number 1, 2012 Issue Number 4, 2011 Issue Number 3, 2011 Issue Number 2, 2011 Issue Number 1, 2011

Issue Number 4, 2010 Issue Number 3, 2010 Issue Number 2, 2010 Issue Number 1, 2010 Issue Number 4, 2009 Issue Number 3, 2009 Issue Number 2, 2009 Issue Number 1, 2009 Issue Number 4, 2008 Issue Number 3, 2008 Issue Number 2, 2008 Issue Number 1, 2008

Issue Number 4, 2007 Issue Number 3, 2007 Issue Number 2, 2007 Issue Number 1, 2007 Issue Number 4, 2006 Issue Number 3, 2006 Issue Number 2, 2006 Issue Number 1, 2006 Issue Number 4, 2005 Issue Number 3, 2005 Issue Number 2, 2005 Issue Number 1, 2005

Issue Number 4, 2004 Issue Number 3, 2004 Issue Number 2, 2004 Issue Number 1, 2004 Issue Number 4, 2003 Issue Number 3, 2003 Issue Number 2, 2003 Issue Number 1, 2003 Issue Number 3, 2002 Issue Number 2, 2002 Issue Number 4, 2001 Issue Number 3, 2001

Issue Number 2, 2012

• The Outer Limits of Buyer Protection in a Section 363 Sale
  Richard Brunette
  Page 1
  
  
• Executive Committee: Message from the Chair
  Donna Parkinson
  Page 8
  
  
• BLN Editorial Board: Message from the Editor-in-Chief
  April E. Frisby
  Page 9
  
  
• BLN Editorial Spotlight
  Edwin I. Lasman, Co-Vice-Chair
  Page 9
  
  
• BLN Editorial Spotlight
  Coleman Cannon, Editor
  Page 10
  
  
• Major Securities Exchanges Require Reverse Merger Companies to Add More Seasoning
  Young Jun Kim
  Page 12
  
  
• Are You FBAR Serious?
  Marianne H. Man
  Page 18
  
  
• Don’t Let the ERISA Train Derail the Deal: 7 Simple Steps to Help Minimize ERISA Liabilities in an M&A Transaction
  Sherrie Boutwell
  Page 21
  
  
• Guide to Business Law Section Publications
  
  
• Perfecting and Enforcing a Security Interest in “Realty Paper”
  John R. Engel
  Page 30
  
  
• O’Neil v. Crane: The Supreme Court’s Most Recent Pronouncement Concerning If and When A Manufacturer Is Liable for Components Used In or In Connection With its Product
  Efrat M. Cogan and George Stephan
  Page 35

Issue Number 1, 2012

• California Corporations Code Provisions Governing Dividends and Distributions Amended and Streamlined with the Passage of AB 571
  By W. Alex Voxman
  Page 1
  
  In September2011, Californiastreamlined and simplified the legal requirements for distributions to shareholders by California corporations and certain so-called quasi-California corporationsin a manner that brings the California Corporations Code more in line with the law in most other states. One of the principal changes is to replace the rigid and formulaic balance sheet and liquidity test that was contained in the prior statute with a new, simpler balance sheet test. The new balance sheet test, in essence, permits a solvent corporation to make a distribution to its shareholders so long as the value of the corporations assets would exceed its liabilities (and, if applicable, preferred stock preferences) after giving effect to the distribution.
  
  W. Alex Voxman is a partner in the Los Angeles office of Latham & Watkinsand serves as the Co-Chair of the Los Angeles office's Corporate Department. His practice focuses primarily on mergers and acquisitions, private equity and venture capital transactions, and public and private securities offerings.Mr. Voxman is a member of the Corporations Committee of the Business Law Section of the California State Bar.He can be reached at alex.voxman@lw.com.
  
  
• Executive Committee:Message from the Chair
  By Donna Parkinson
  Page 6
  
  
• BLN Editorial Board: Message from the Editor
  April E. Frisby
  Page 8
  
  
• Banking Agencies Challenge California’s Business Judgment Rule: Will This Expand Officer and Inside Director Liability?
  Jonathan D. Joseph
  Page 9
  
  While there is widespread consensus among the courts justifying the deferential treatmentaccorded decisions by corporate directors defending claims for negligence and breach of care based upon the business judgment rule,the liability standard for non-director corporate officers remains relatively unexplored. In 2011, two federal banking agencies brought civil damage actions in the Central District of California against executive officers of failed financial institutions. The agencies asserted that the deference accordedto directors does not apply to good faith decisions by bank officers that didnt turn out well.These cases touch uponsignificant underlying themes in American society today (e.g., Occupy Wall Street) as to who should be responsible for the tremendous costs of bailing out the largest American banks in 2008 and whether bank executives and directors could have anticipated the global financial meltdown in 2008. In many states, including California, Delaware and New York, there has been little dispute that the business judgment rule applies equally to corporate officers and directors. This article explores these pending Central District cases and explains why any final appellate rulings upholding the position asserted by the banking agencies could have severe unintended consequences including the potential to drive businesses out of California.
  
  Jonathan Joseph has focused for over 33 years on regulatory, corporate, securities, and transactional matters for banks and bank holding companies and officers and directors of distressed and failed institutions. He currently serves as the Co-Vice Chair and Secretary of the Financial Institutions Committee of the Business Law Section of the California State Bar (2008 present). He is the founder and managing partner of Joseph & Cohen, Professional Corporation (www.josephandcohen.com) in San Francisco, CA. Mr. Joseph is a member of theCalifornia State Bar, the Washington D.C. Bar and the State Bar of New York. He may be contacted at Jon@josephandcohen.com.
  
  
• Hot Topics in Insolvency Law: Alter Ego Claims
  By Gary M. Kaplan and Thomas R. Phinney
  Page 16
  
  
• Guide to Business Law Section Publications
  
  
• Business Law Section Standing Committees UpdatesCyberspace Committee Update
  By Nicole A. Ozer
  Commercial Transactions Committee Update
  By D.C. Toedt
  
  
• Just Say No to Bankruptcy: Courts Enforce Provisions in Organizational Documents Restricting Ability to Seek Bankruptcy Protection
  By Paul J. Pascuzzi and Christopher D. Crowell
  
  Courts have consistently held that contractual provisions with third parties prospectively waiving a borrowers right to seek bankruptcy protection are void as against public policy. Courts also have refused to enforce state court orders enjoining debtors from filing bankruptcy petitions. This traditional hostility also extends to creditors prepetition efforts to deprive debtors of the benefits of bankruptcy or stymie debtors efforts to reorganize in bankruptcy.Two recent decisions, however, DB Capital Holdings, LLC v. Aspen HH Ventures, LLCand Green Bridge Capital S.A. v. Shapiro,suggest that courts may enforce provisions in a borrowers organizational documents that restrict the borrowers ability to seek bankruptcy protection, at least absent evidence that such provisions were obtained through lender coercion. These decisions point to a potentially powerful strategy for creditors, and are especially welcome news to the creditors bar in the wake of In re General Growth Properties, Inc.which called into question the effectiveness of another commonly-employed bankruptcy-remoteness technique involving special-purpose entities. DB Capital and FKF Madison Park suggest a number of lessons forboth counsel representing a borrowerand counsel representing a lender.
  
  Paul J. Pascuzzi is a partner at Felderstein Fitzgerald Willoughby & Pascuzzi, LLP. He is a former Chair of the Executive Committee and the Insolvency Law Committee of the Business Law Section of the California State Bar. He can be reached atppascuzzi@ffwplaw.com. Christopher D. Crowell is an associate at Felderstein Fitzgerald Willoughby & Pascuzzi, LLP and a former judicial law clerk at the U.S. Bankruptcy Court for the Eastern District of California. He can be reached atccrowell@ffwplaw.com.
  
  
• IRS Lawyer Audits: Review And Best Practices For The Business Lawyer’s Small Or Solo Practice
  By Robert W. Wood
  
  Recently, the IRS released a new audit guide directing its agents on the proper procedures for auditing lawyers, the IRS Attorneys Audit Technique Guide. Although much of the Audit Guide may be read as focusing on contingent fee practices, this article focuses on the business lawyers small or solo practice, and contains interesting points about best practices of record-keeping and audit-related issues. Lawyers should consider taking steps now to protect their practice in the event of an audit. In addition, it may be useful for lawyers to review the Audit Guide in full and test the application of those principles to their own practices record-keeping and document control policies. Many small legal practices would probably discover that they should make some improvements. In that way, they may have a much easier time if the firm is subject to a tax audit. Although lawyers certainly should not fear the IRS, they would be well advised to prepare for such interactions.
  
  Robert W. Wood is a tax lawyer with a nationwide practice (www.WoodLLP.com). The author of more than 30 books, Robert can be reached at Wood@WoodLLP.com.
  
  
• Practical Guidance on How to Conduct FCPA Due Diligence
  By Rebekah J. Poston and David A. Saltzman
  
  This article provides practical guidance and insights for performing Foreign Corrupt Practices Act due diligence, whether on a target in a merger and acquisitionoron thebackground of a third party contractor.
  
  Rebekah J. Poston is a partner with Squire Sanders where she chairs the firm's global FCPA/Anti-Corruption Practice Group. She can be reached at rebekah.poston@squiresanders.com. David A. Saltzman is Of Counsel with Squire Sanders. His principal areas of practice include corporate compliance, mergers and acquisitions, and commercial transactions. He can be reached atdavid.saltzman@squiresanders.com.
  
  
• Measuring Credit Reputation Damages in Business Litigation
  By Georg Finder and David S. Miller

Issue Number 4, 2011

• Anthony Pierno Receives Business Law Section's Lifetime Achievement Award
  Steven O. Weise
  Page 1
  
  The career of Anthony Pierno, this year’s recipient of the Business Law Section’s Lifetime Achievement Award, has included both private practice and government service, including serving as California’s Commissioner of Corporations and Insurance Commissioner of California, where he was key in the creation of legislation such as the Corporate Securities Law of 1968, the Franchise Investment Law (1971) and the Retirement Systems Disclosure Law. Along with numerous other public service activities, Tony served as chairman of the Committee on Corporations of the State Bar of California, where he worked to modernize the Corporations Code.
  
  The Section presents its Lifetime Achievement Award each year to a lawyer who has made significant contributions to the Section or business law generally, or both, over an extended period and who is held in high regard in the profession.
  
  This article profiles Anthony Pierno and his substantial contributions to the development of business law, both as a government official and during private practice.
  
  
• Executive Committee: Message from the Chair
  By Donna Parkinson
  Page 4
  
  
• Message from the Editor
  By April E. Frisby
  Page 5
  
  
• A Century of Conflict Over Water: Is There a Solution?
  By Edgar B. Washburn
  Page 6
  
  It is unquestioned that California does not have enough water to accommodate the critical needs of the environment, agriculture and urban users.  The resulting water wars—which date back to the successful efforts of Los Angeles to seize water from the Owens River—have persisted for the better part of the century.  Initially, the shortage was primarily one of location—the water sources exist in the northern portion of the state and the demand was in the urban south and agricultural central valley.  The solution was to spend billions of dollars constructing an intricate system that could capture the water in the north and from the Colorado River and deliver it to where it is needed.  That approach has proven to be a temporary solution which is no longer adequate.  It has been overtaken by an increasing demand coupled with a diminishing supply of water. All of this has been exacerbated by a 19th Century legal system of existing water rights that is not up to the task of fairly and effectively allocating existing supplies between the competing interests.  The California political system has proven incapable of finding a solution and federal environmental legislation has added an inflexible straight jacket to the existing gridlock.
  
  No one seriously doubts that if solutions cannot be found soon the economic and societal costs will be huge.  In the absence of effective legislation, the conflicts over the allocation of water are being resolved in the courts which must apply the laws as they find them.  This is proving to be contentious, expensive and uncertain. 
  
  This article explores the problem, non-judicial solutions, and the judicial challenges that will lead to conflicts between the public trust doctrine, established water rights, and constitutional takings protections.
  
  Edgar B. Washburn is a senior counsel in Morrison & Foerster LLP's Environment and Energy Group where he specializes in natural resource, energy, environmental, water, and real property law. His e-mail address is ewashburn@mofo.com.
  
  
• 10 Social Media Must Haves For Your Corporate Compliance and Ethics Program
  By Michelle Sherman
  Page 11
  
  Companies would be legally remiss not to add a social media component to their corporate compliance and ethics program. Agencies such as FINRA, the FTC, and the NLRB are bringing complaints against companies arising from their social media activity or employee related activity. This article lists som...e of the key areas where companies need to be updating their compliance program, guidance on how to implement these policy changes, and the legal rationale for making changes such as: adopting a social media policy; updating your e-discovery approach and document retention policy; and training your employees so they are not using the Internet in ways that may result in the company being sued by a regulatory agency or a private plaintiff in a civil action.
  
  Michelle Sherman is a special counsel in the Los Angeles office of Sheppard, Mullin, Richter & Hampton LLP where she specializes in complex litigation matters, and advising companies on social media and Internet legal issues. Her e-mail address is msherman@sheppardmullin.com.
  
  
• BAPCPA’s Impact On Application Of The Absolute Priority Rule In Individual Chapter 11 Cases
  By Robert G. Harris (rob@bindermalter.com), Daniel H. Gill (dgill@ebglaw.com) and Martin A. Eliopulos (elio@higgslaw.com)
  Page 17
  
  On April 28, 2005, the Pub. L. No. 109-8, 119 Stat. 23, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA) became law. In enacting BAPCPA, Congress added Section 1115 to the U.S. Bankruptcy Code and thereby expanded the definition of property of the estate in an individual Chapter 11 case so that the estate now includes, in addition to property specified in Section 541," post-petition acquired property and earnings. At the same time, Congress modified section 1129(b)(2)(B)(ii) of the Code to except from the Absolute Priority Rule the "property included in the estate under section 1115." There is a growing split of authority among bankruptcy courts as to what the amendments mean. Certain "broad view" cases hold that the amendments abrogated the Absolute Priority Rule in individual Chapter 11 cases because the amendments now allow an individual Chapter 11 debtor, whose plan does not pay unsecured creditors in full, to nevertheless retain both post-petition acquired property and earnings and non-exempt pre-petition property of the estate under Section 541. An emerging majority of "narrow view" cases, however, hold that the amendments authorize the individual Chapter 11 debtor whose plan does not pay unsecured creditors in full to only retain post-petition property and earnings and exempt pre-petition estate property, not only leaving the Absolute Priority Rule intact but expanding it. With a first case finally set to be argued in February, 2012 before the Ninth Circuit Bankruptcy Appellate Panel and another on direct appeal to the Fourth Circuit, this article provides structured analysis of each of the two views taken, discusses the likely outcomes on appeal, and identifies questions that will remain if one view is adopted over the other.
  
  Mr. Harris is a partner in Binder & Malter LLP in the Silicon Valley; Mr. Gill is of counsel at Ezra Brutzkus Gubner LLP in Woodland Hills; and Mr. Eliopulos is a partner at Higgs Fletcher & Mack LLP in San Diego.  
  
  
• Guide to Business Law Section Publications
  Page 22
  
  
• Business Law Section Standing Committees Updates
  Health Law Committee Annual Report
  By Julie Simer
  Page 24
  Insurance Law Committee Annual Report
  By Kimberley Dellinger-Dunn
  Page 24
  Insolvency Law Committee Annual Report
  By Robert G. Harris
  Page 25
  
  
• Online Content Sharing: Don’t Get Caught in the Copyright Act
  By Joseph Donnini
  Page 27
  
  Imagine that your business is either creating a new website or revamping an existing one.  It can be exciting to think about the various images, text, blogs, streaming video, and other types of content that can help identify your brand, as well as share information about your products or services.  As you begin to assemble the content for your website, you draft some original narratives, coupled with internet searches to find the exact music, photo, or images that will reflect the message you want to convey to your customers.   You see a great article giving background on consumer spending patterns in your industry.  You want to share that information on your site too, or perhaps you just want to create links that refer back to the full text of that article on the site in which you found it.   
  
  Do you need permission to use any of these items? These are the types of questions increasingly asked by business owners trying to navigate the online world of sharing content.  These questions relate to businesses using content, but what also happens when your business’s employees are sharing content?  And if in building or revising your website, your staff do any of the foregoing without your permission, are you liable as their employer if any of the actions constitute infringement?  Additionally, are you liable as an employer for any digital content sharing that is done personally by your employees if it constitutes infringement? 
  
  This article explores answers to these questions by analyzing statutory and copyright case law, ultimately recommending some practical considerations.
  
  Joe Donnini is a Manhattan Beach based attorney whose practice focuses upon business issues, especially in intellectual property, franchise and real estate.  He also is a Visiting Assistant Professor of Law at Whittier Law School. His email is joe@joedonnini.com.
  
  
• Are Settlement Proceeds of An Individual Debtor Exempt From Prejudgment Attachment? A Preliminary Analysis
  By Lubna K Jahangiri
  Page 31
  
  
• Review Of Recent FLSA Class Actions: Businesses Avoid Paying More For Overtime During Tough Economic Times
  By Audra Ibarra
  Page 36

Issue Number 3, 2011

• In Memoriam: Bradbury Clark
  By John B. Power
  Page 1
  
  R. Bradbury Clark, a co-founder of the California Business Law Section, died in July 2011.  He was a leading expert on California corporation laws, a major contributor to the work of the broader legal and charitable communities, a distinguished figure in his law firm, and a wonderful human being.    He received the Section’s lifetime achievement award in 1998.  This memorial testifies to the life of one of California’s greatest corporate lawyers.  
  
  
• Executive Committee: Message from the Chair
  By Mark E. Porter
  Page 4
  
  
• BLN Editorial Board: Message from the Editor
  By Efrat M. Cogan
  Page 5
  
  
• Looking Back: Reflections of a California Securities Lawyer
  By Neal H. Brockmeyer
  Page 6
  
  This article provides an overview of the evolution of the securities practice since the 1960s, particularly as it pertains to registered public offerings.  It first describes changes in the process for registering securities under the Securities Act of 1933 and for qualifying or registering these securities under the state securities laws.  Some of the major regulatory developments are then discussed.  This includes the SEC’s implementation of the integrated disclosure system and scaled disclosure for smaller issuers.  Also discussed are changes in the look and content of prospectuses, including management’s discussion and analysis of financial condition and results of operations, risk factors, executive compensation and corporate governance.
  
  Neal H. Brockmeyer is Of Counsel to Locke Lord LLP, resident in its Los Angeles office.  He specializes in corporate governance, securities law compliance and corporate transactions.  His e-mail address is nbrockmeyer@lockelord.com. 
  
  
• Use, Confusion, Mistake, or Deception: When Does the Bidding of Trademarks Key Words From a Search Engine Company or Inclusion of Trademarked Key Words in Online Ad Texts Constitute Trademark Infringement?
   By Marianne H. Mann
  Page 13
  
  Imagine that you have a website, and you would like to generate more traffic for it.  One way to accomplish this objective is through auction-style bidding on “key words” from popular internet search engines for first page, high priority advertisement space on users’ search results screens.  This article addresses when the bidding and use of trademarked key words from a search engine for online advertising purposes triggers trademark infringement for purposes of the Lanham Act.  It also discusses a precedent-setting 2009 court case and its implications for trademark infringement law, and explores general landmines to consider when using trademarked key words in the online advertising context. 
  
  Marianne Man is an attorney at The Tax Counsel, a law firm located in Irvine, CA.   Marianne focuses her legal practice on corporate governance, business and personal tax planning, and tax controversy, as well as mergers and acquisitions.   Marianne is a member of the California State Bar Partnerships and Limited Liabilities Companies Committee.  She was named ‘Southern California SuperLawyers - Rising Star’ By Los Angeles Magazine in 2010.   Her e-mail address is Marianne@TheTaxCounsel.com
  
  
• California Transparency in Supply Chains Act
  By Peter M. Menard
  Page 17
  
  On January 1, 2012, the California Transparency in Supply Chains Act will become effective. The Act requires every large retailer and manufacturer doing business in California to publicly disclose whether it has taken specified actions to eliminate slavery and human trafficking from its product supply chain. The Act does not require a company to make any effort to eliminate slavery or human trafficking, but only to disclose the extent, if any, to which it has taken the actions listed in the Act. The impact of the Act ultimately will depend on the extent to which consumers, investors and activists use the required disclosure to pressure companies to monitor and eliminate abuses in their supply chains. This article contains a comprehensive analysis of the Act, including the companies to which it applies, the disclosure obligations it imposes, penalties for noncompliance, how companies can and should respond to the statute, and the public relations implications of a minimalist approach to compliance.
  
  Peter M. Menard is a partner in the Los Angeles office of Sheppard, Mullin, Richter & Hampton LLP where he specializes in corporate governance, securities law compliance, and corporate transactions. He has taught securities regulation at the University of Southern California Gould School of Law. His e-mail address is pmenard@sheppardmullin.com.
  
  
• Change at the Top: Are Recent Legal Reforms Aimed at Improving Board Accountability to Shareholders on Target?
  By Lance A. McKinlay and Christine B. Wessel
  Page 25
  
  On the heels of the Great Recession, shareholders, regulators and corporations alike have looked more closely at a fundamental governance issue: the accountability of corporate boards to shareholders. This article considers the relative strengths and weaknesses of recent legal reforms at the state and federal levels aimed at improving accountability to shareholders. At the federal level, reforms include an attempt to empower shareholders of public companies with the right to nominate directors in limited circumstances, and giving them a say (albeit non-binding) on the compensation of directors and executive officers. With regard to director elections, state law amendments have accommodated a significant shift away from a plurality voting standard toward a majority voting standard.  The article finds that some reforms intended to improve accountability to shareholders may prove to be less effective than intended, or worse, may backfire on shareholders.  
  
  Lance McKinlay is a founding partner at Manderson, Schafer & McKinlay LLP in Newport Beach, where he specializes in securities law compliance and corporate transactions. His email address is lmckinlay@mandersonllp.com.  
  
  Christine Wessel is an attorney at Manderson, Schafer & McKinlay LLP who specializes in compliance and regulatory affairs, financial services and corporate transactions. Her email address is cwessel@mandersonllp.com.
  
  
• Crashworthy Contract
  By David Cook
  Page 33
  
  What  are  the scariest words to describe a contract:  “Not worth the paper it 's  written on.”  The expression kicks open the door to the discussion of contract terms that assure a party of accessible rights and  remedies enabling the party to effectively recover the benefit of the bargain in the event of a default or escape a catastrophe.  Contracts that  are crashworthy enable the aggrieved party to emerge reasonably unscathed from the unfolding disaster.  These remedies are commonplace, but become crucial in infusing the contract with value.  Acceleration clauses permit the party to sue on the total due if the payments are spread over time.  Damage limitations, such as repair or replacement, shear a claim of consequential and incidental damages and avoided at all costs, or sought By the seller selling high risk products.  Attorney’s fees clauses protect parties from a calculated default, as the absent attorney’s fee clause tempts a party to default if freed of the adverse fee claim in the enforcement litigation.  Mediation clause accrues enormous expense and near smothers simple collection actions.  Arbitration hobbles most prejudgment remedies plus runs up a huge bill.  Arbitration compels  a  premium payment to a  premium retired judge.  Forum selection clauses if relegating a party to distant or offshore forum degrades the contract given secondary enforcement in another domicile.   A forum selection clause providing for offshore arbitration is “unsafe at any speed.”   Choice of law clauses, while innocent of their face, upsets a party’s commercial expectations absent advice By counsel familiar with the chosen law.  [Did Louisiana ever abandon the Napoleonic Code?  Is Delaware warm and fuzzy to minority  shareholders?  How about New York law in the enforcement of a California deed of trust?  Most frightening:  Choice of law for a state that allows deficiency judgments in a multi-million dollar real estate deal that craters]  Absent these critical terms, the contract is degraded and the ability to recover diminished.  Never even pass the blinking light test.  
  
  David J. Cook is the founder and senior attorney of Cook Collection Attorneys, PLC. He practices in the area of enforcement of judgments and collection of debts. His e-mail address davidcook@cookcollectionattorneys.com.

Issue Number 2, 2011

• California Legal Issues Affecting Mergers and Acquisitions
  By David M. Hernand and Nicole Miller
  Page 1
• Executive Committee: Message from the Chair
  By Mark E. Porter
  Page 9
• Message from the Editor
  By Efrat M. Cogan
  Page 10
• The Expedited Jury Trials Act: An Alternative to Form Arbitration Clauses
  By Michael Geibelson
  Page 12
• The Bank Secrecy Act: What’s so Secret?
  By Cheryl Marie Lott and Robert S. Addison, Jr.
  Page 16
• Guide to Business Law Section Publications
  Page 20
• Business Law Section Standing Committees Updates
  Nonprofit and Unincorporated Organizations Committee Annual Report
  By Rebecca Eggeman
  Page 22
  Corporations Committee Annual Report
  By John Oehmke
  Page 22
  Consumer Financial Services Committee Annual Report
  By Caryn Becker
  Page 23
• The High Stakes of Misclassifying Employees and Independent Contractors
  By Robert W. Wood
  Page 24
• Investment Adviser Registration Post Dodd-Frank
  By Yoni Tuchman
  Page 27
• Failed Banks and The Controversy Over Tax Refunds
  By Benedict Kwon
  Page 33 

Issue Number 1, 2011

• MCLE Self-Study Article Mediation Confidentiality and Legal Malpractice: Cassel v. Superior Court
  By Joel M. Grossman
  Page 1
• Executive Committee: Message from the Chair
  By Mark E. Porter
  Page 2
• Message from the Editor
  By Efrat M. Cogan
  Page 2
• The Dodd Frank Act: A Guide to the Corporate Governance, Executive Compensation, and Disclosure Provisions
  By Peter Menard
  Page 3
• The Power of Writs of Attachment
  By Russell Allyn
  Page 5
• The IRS Issues Long-Awaited Regulations on Series LLCs
  By Phillip L. Jelsma
  Page 7
• Guide to Business Law Section Publications
  Page 18
• Business Law Section Standing Committees Updates
• Agribusiness Law Committee Annual Report
  By Chris Passarelli
  Page 20
• Franchise Law Committee Annual Report
  By Calvin E. Davis
  Page 21
• Partnerships and LLCs Committee Annual Report
  By Phillip L. Jelsma
  Page 21 

Issue Number 4, 2010

Special Joint Issue with the Real Property Law Section

• Message from the Editors
  By Randall Block and Efrat M. Cogan
• Business Law Section: Message from the Editor
  By Efrat M. Cogan
• Real Property Section: Message from the Editor
  By Randall Block
• Business Law Section: Message from the Chair
  By Mark E. Porter
• MCLE Self-Study Article: Loan Modification 101 – Everything You Always Wanted to Know About Loan Modification but Were Afraid to Ask
  By Suzan Anderson
• Game Change in Business Real Estate: It’s Not Just the Economy
  By Elaine Andersson
• Impact of Real Estate Downturn on Private Investment Funds and Their Investors
  By David A. Riley
• The Acquisition of Distressed Real Estate Debt: Lifecycle of a Transaction
  By Patrick Valentino
• Loan Workout Negotiations and Creditor Rights Issues in Today’s Commercial Lending Environment
  By Gregg D. Josephson
• Lenders Beware of the True Test for Enforcing Personal Guaranties of Commercial Loans: What Would a Jury Think?
  By William H. G. Norman
• Lender Perils and Pitfalls: How to Use Receivers Effectively to Manage Foreclosed Upon Properties in the Current Market
  By Matthew L. Seror
• Law of Intended Consequences?
  By Seth Weissman
• George Coombe Receives Business Law Section’s Lifetime Achievement Award
  By Steven O. Weise

Issue Number 3, 2010

• Federal Health Care Reform Measures of 2010: A Business Lawyer’s Guide to the New and Enhanced Compliance Mandates Affecting Physicians
  By Christine Covert Cohn
• Executive Committee: Message from the Chair
  By Paul J. Pascuzzi
• Message from the Editor
  By Alan M. Insul
• Introduction to The Form 990 Policy Series Showcase: Document Retention and Destruction Policy and Memorandum
  By Lani Meanley Collins and Joel S. Corwin
• The Enforceability of Covenants Not to Compete in Limited Liability Company Operating Agreements
  By Richard C. Darwin
• The Curious History of Full Payment Checks in California
  By Janice E. Kosel
• Tax And Liability Dictate Business Form
  By Robert W. Wood and Christopher A. Karachale
• Use of Captive Insurance in Estate and Business Planning: Part II
  By Gordon A. Schaller and Scott A. Harshman
• Securities Laws Governing Private Offerings in California Appendix A: Federal and California Private Offering Exemptions
  By Lee R. Petillon

Issue Number 2, 2010

• The Top Ten Things Corporate Attorneys Should Know About California Employment Law
  By Nancy Yaffe
• Executive Committee: Message from the Chair
  By Paul J. Pascuzzi
• Message from the Editor
  By Alan M. Insul
• The Limits of “Bankruptcy Proofing” in the Wake of General Growth Properties
  By Michael du Quesnay, Jim Robertson, and Walter Oetzell
• MCLE Article: Ethical Issues for the In-House Transactional Lawyer
  By Neil J Wertlieb and Adam S. Bloom
• Foreign Companies Doing Business in the United States: Choice of Entity Considerations
  By Philip D. W. Hodgen
• Use of Captive Insurance in Estate and Business Planning: Part I
  By Gordon A. Schaller and Scott A. Harshman
• Home Workers and the Debate Over “Who’s a Statutory Employee” Under the Internal Revenue Code
  By Robert W. Wood and Christopher A. Karachale
• Securities Laws Governing Private Offerings in California
  By Lee R. Petillon
• BLN MCLE Test Number 10: Ethical Issues for the In-House Transactional Lawyer
• MCLE Test Instructions -- Test Number 10

Issue Number 1, 2010

• Opportunity and Risk—The New California Electronic Discovery Act
  By Will Hoffman
• Executive Committee: Message from the Chair
  By Paul J. Pascuzzi
• Message from the Editor
  By Alan M. Insul
• Recognizing the Champions of the Business Law Section
  By Paul J. Pascuzzi
• Winning and Losing: The Battle Over D&O Insurance in Bankruptcy
  By James P. Menton, Jr. and Julian I. Gurule
• The Brave New World of Eworkplace Privacy Policies
  By Robert D. Brownstone
• The Business Divorce
  By Michael Gold
• A Primer on Mergers Involving Unincorporated Entities
  By Donald M. Scotten
• Understand the Economics Before You Fly Solo
  By Edward Poll
• All Lawyers Need to Know: Independent Contractor Basics
  By Robert W. Wood
• BLN MCLE Test Number 9
  The New California Electronic Discovery Ac

Issue Number 4, 2009

• Denis T. Rice Receives Business Law Section's Lifetime Achievement Award
  By Steven O. Weise
• Executive Committee: Message from the Chair
  By Paul J. Pascuzzi
• Message from the Editor
  By Alan M. Insul
• Corporate Risks in a Climate Change Cap and Trade Program
  By Peter C. Mieras
• Six Questions for Your Section 2000 Appraiser
  By Gregory A. Barber
• Pitfalls of Limited Liability Company Loss Allocations for Non-Tax Practitioners
  By Ronald P. Wargo
• Recovering Attorneys’ Fees in Bankruptcy Litigation Post Travelers
  By Megan A. Lewis and Daniel L. Egan
• The FCPA: Learn it (and Teach it to Your Employees) Before it Teaches You a Lesson
  By Patrick O. Hunnius
• Addiction: The Equal Opportunity Destroyer
  By Greg Dorst
• BLN MCLE Test Number 8
  Addiction: The Equal Opportunity Destroyer

Issue Number 3, 2009

• Involuntary Dissolution: The Nuclear Option
  By Carol K. Lucas and Karen L. Stevenson
• Executive Committee: Message from the Chair
  By Peter C. Bronson
• Message from the Editor
  By James P. Menton, Jr.
• Bridging the (Working Capital) Gap: An Annotated Convertible Promissory Note Term Sheet
  By Louis R. Dienes and Ekong I. Udoekwere
• In Re Tobacco Cases II: The Supreme Court’s “Last Word” on Standing in Class Actions Under Business & Professions Code Section 17200
  By Efrat M. Cogan
• BigLaw to C Suite—Observations from the Other Side
  By Charles L. Crouch, III
• In a Real Estate Downturn: Section 1111(b)(2) or Not (b)(2)? That Is the Question
  By Tobias S. Keller and Michaeline M. Correa
• Comedy Club, Inc. v. Improv West Associates: The Ninth Circuit Limits Franchisors’ Use Of In-Term Non-Competition Covenants To Those Situations Where The Covenant is “Narrowly Tailored”
  By Robert B. Milligan and James D. McNairy
• Alternative Structures for “Social Businesses”
  By Jennifer Kassan
• Phantom Home Mortgage Deductions on Chapter 7 Means Tests: Why Bankruptcy Courts’ Treatment of Secured Debt Payments is Contrary to Legislative Intent and Against Public Policy
  By Ali Matin
• BLN MCLE Test Number 7
  In a Real Estate Downturn: Section 1111(b)(2) or Not (b)(2)? That Is the Question

Issue Number 2, 2009

• Preserving Trade Secrets in California: Best Practices
  By Michael A. Sands and Saundra L. M. Riley
• Executive Committee: Message from the Chair
  By Peter C. Bronson
• Message from the Editor
  By James P. Menton
• The State Bar’s Former Chief Prosecutor Explains: How to Avoid Common Disciplinary Complaints
  By Scott J. Drexel
• BLN MCLE Test Number 6
  How To Avoid Common Disciplinary Complaints
• Series LLCs: An Organizational Form That Should Be Used Cautiously (For Now)
  By Donald M. Scotten
• Chasing Dollars: The Basic Landscape of Commercial Collection Litigation
  By Joseph N. Demko and Matthew S. Kenefick
• New Age Scrutiny On Employee Vs. Contractor Liabilities
  By Robert W. Wood
• Complex Collateral for Workouts and Deals: Security Interests in Deposit Accounts, Securities Accounts and Equity Interests
  By James S. Cochran

Issue Number 1, 2009

• A First Look at What May Be California’s New Limited Liability Company Act
  By Donald M. Scotten and Phillip L. Jelsma
• Executive Committee: Message from the Chair
  By Peter C. Bronson
• Message from the Editor
  By James P. Menton
• MCLE Article: Ex Parte Communications in a Transactional Practice
  By Neil J. Wertlieb and Nancy T. Avedissian
• BLN MCLE Test Number 5
  Ex Parte Communications in a Transactional Practice
• The Unfair Competition Law And Its Evolving Standing Requirements
  By Efrat M. Cogan
• Bankruptcy Sales: A Recent Decision Illustrates Some Risks and Opportunities
  Clear Channel Outdoor, Inc. v. Knupfer (In re PW, LLC), 391 B.R. 25 (B.A.P. 9th Cir. 2008)
  By Neil Bason
• Lessor Update: What Commercial Landlords Should Understand About Bankruptcy
  By Jeffrey L. Schaffer and Gary M. Kaplan
• Launching and Managing Your Business in China—Issues to Consider Regarding Regulation of the Employment Relationship
  By Alan S. Gutterman and Tiffany Lau

Issue Number 4, 2008

• Melvin A. Eisenberg Receives Business Law Section’s Lifetime Achievement Award
  By Ann Yvonne Walker
• Executive Committee: Message from the Chair
  By Peter C. Bronson
• Message from the Editor
  By James Menton
• State Bar President Asks the Business Law Section for Help in Accomplishing Her Initiatives
  By Holly Fujie
• Facilitating Disclosure Through Company Websites: If You Blog it, They Will Come
  By David Zaheer
• MCLE Article: Addressing Conflicts of Interest in a Transactional Practice
  By Neil J Wertlieb and Nancy T. Avedissian
• BLN MCLE Test Number 4
  Addressing Conflicts of Interest in a Transactional Practice
• Contracting With Minors: How California Lawmakers and Courts Deal with Adults Who Enter Contracts with Minors
  By Robert N. Pafundi
• Municipal Chapter 9 Bankruptcy
  By Barry S. Glaser
• New State and Federal Laws Created to Alleviate the Current Foreclosure Crisis and Provide Relief to Homeowners
  By Paul J. Pascuzzi and Holly A. Estioko

Issue Number 3, 2008

• A Shot Not Heard—The Court of Appeal Holds that an Issuer’s Directors and Officers Must Be Licensed as Securities Broker-Dealers
  By Keith Paul Bishop
• Executive Committee: Message from the Chair
  By Carol K. Lucas
• Message from the Editor
  By James Menton
• Intellectual Property Issues To Consider When Conducting Due Diligence in Mergers and Acquisitions
  By Stuart L. Pardau
• Ninth Circuit Finds General Partner Voting on Self-Dealing Transactions “Manifestly Unreasonable”
  By Phillip L. Jelsma
• What Savvy Businesses Know About Disability Rights
  By Paula Pearlman
• BLN MCLE Test Number 3: What Savvy Businesses Know About Disability Rights
• Best Practices for Keeping the “Limited” in Limited Liability Company
  By Donald M. Scotten
• Conjunction Junction, What’s Your Function? How a Narrow Reading of Section 362(d)(4) of the Bankruptcy Code Permits Abusive Bankruptcy Filings
  By Ali Matin

Issue Number 2, 2008

• Leveling the Playing Field When a Civil Litigant Asserts the Fifth in California State Court
  By Mark W. Robertson and Ryan W. Rutledge
• Executive Committee: Message from the Chair
  By Carol K. Lucas
• Message from the Editor
  By James Menton
• Letter to the Editor
  By Bill Holden
• A Primer on Chapter 11 for the Non-Bankruptcy Lawyer Part III
  By Lawrence Peitzman
• The Future of Single Asset Real Estate Cases In Bankruptcy
  By Steven H. Felderstein and Joan S. Huh
• MCLE ARTICLE: Law Firm Divorces: Departing Partners: Economics & Ethics
  By Jan Christensen
• BLN MCLE Test Number 2
  Law Firm Divorces: Departing Partners: Economics & Ethics
  1 Hour MCLE Ethics Credit
• New Age Scrutiny of Employee vs. Contractor Liabilities
  By Robert W. Wood
• Proposed Online Behavioral Advertising Principles
  By Françoise Gilbert, CIPP
• Data Wrangling, Lassoing, and Roping at the M&A Corral
  By Robert D. Brownstone and Todd R. Gregorian

Issue Number 1, 2008

• Truth or Dare: California’s New Ethics Standards for Private Arbitrators
  By Rebecca Callahan
• Taking Stock in Your Client: Strengthening the Client Relationship and Avoiding Pitfalls
  By Young J. Kim and Jeffrey L. Braker
• Executive Committee: Message from the Chair
  By Carol K. Lucas
• Message from the Editor
  By James Menton
• A Primer on Chapter 11 for the Non-Bankruptcy Lawyer Part II
  By Lawrence Peitzman
• New Adventures in Fee Collection: Drafting and Enforcing Attorneys’ Fee Clauses After Travelers
  By Lisa Hill Fenning, William Heuer, Gary Kaplan, and Michael St. James
• A Rose By Any Other Name is Called Unperfected
  By Janice E. Kosel
• BLN MCLE Test Number 1
  Truth or Dare: California’s New Ethics Standards for Private Arbitrators

Issue Number 4, 2007

• Steven O. Weise Receives Business Law Section's Lifetime Achievement Award
  By Ann Yvonne Walker
• Executive Committee: Message from the Chair
  By Carol K. Lucas
• Message from the Editor
  By James Menton
• A Primer on Chapter 11 for the Non-Bankruptcy Lawyer Part I
  By Lawrence Peitzman
• Mergers And Asset Sales In California: Who Wants to Be a Majority Shareholder?
  By Samuel C. Dibble
• Counseling the Licensee through a Licensor’s Chapter 11 Sale
  By Tobias Keller
• Enforcement of a Judgment Can Include Intangible Property
  By Craig McLaughlin

Issue Number 3, 2007

• Due Diligence Review for Compliance in Transactions with Health Care Providers
  By Christine Cohn
• The Federal False Claims Act: When Does A Healthcare Provider Cross the Line, and What Should it Do About it?
  By John P. Krave
• Executive Committee: Message from the Chair
  By Neil J Wertlieb
• Message from the Editors
  By Kazuhiko (Kazu) Sano and R. Michael (Mike) Scarano Jr.
• A Lesson from the Failure of the Nation’s Longest Running Attempt to Create an Electronic System for Sharing Medical Records
  By Kazuhiko (Kazu) Sano
• Daniel Jacob Weiser 1959 - 2007
  By Neil J Wertlieb
• Physician-Assisted Suicide in California: The Legal, Ethical, and Political Issues
  By Noam Glick
• National Developments in Legal Opinions Practice
  By Morris W. Hirsch
• Underground Regulations—Can’t Live With ‘Em, Can’t Live Without ‘Em
  By Robert W. Peterson

Issue Number 2, 2007

• The State Bar of California’s Business Law Section: Celebrating The Section’s 30th Year
  By Charles L. Crouch, III
• Executive Committee: Message from the Chair
  By Neil J Wertlieb
• Message from the Editor
  By Albert Maggio and James P. Menton, Jr., Co-Editors
• The Business Law Section: Leading the Technology Charge into the 21st Century
  By Daniel L. Appelman and Susan Orloff
• Interview With R. Bradbury Clark, Pioneer of the Business Law Section
  By Jim Menton
• An Interview with Anthony R. Pierno, former California Commissioner of Corporations
• Arbitration and Insolvency: Attacking and Defending Arbitration Provisions in Bankruptcy Proceedings
  By Jaime Dodge Byrnes
• Security Deposits And Insolvent Landlords: Not A Matter Of Trust
  By Christopher Alliotts

Issue Number 1, 2007

• Arbitration & Insolvency: Attacking and Defending Arbitration Provisions in Bankruptcy Proceedings
  By Jaime Dodge Byrnes
• Executive Committee: Message from the Chair
  By Neil J Wertlieb
• Is Arbitration the Cure for the Perceived Ills of Litigation? A Conversation
  By Charles Berwanger
• Best Practices in Stock Option Grants
  By Paul David Marotta
• Mediation: A Path To Expeditious Case Resolution
  By John E. Nordin II

Issue Number 4, 2006

• Roland E. Brandel Receives Business Law Section's Lifetime Achievement Award
  By Ann Yvonne Walker
• Executive Committee: Message from the Chair
  By Neil J Wertlieb
• Message from the Editor
  By David M. Pike
• Risks for California Businesses in Drafting and Enforcing Customer and Employee Non-Solicitation Agreements
  By Russell I. Glazer and Jeffrey W. Kramer
• Small Business Bankruptcies and Single Asset Real Estate: An Update and Analysis of Recent Amendments to the Bankruptcy Code
  By Mary Jo Wiggins
• Copyrights in Attorney Work Product - Panacea or Pandora’s Box?
  By Greg Victoroff
• Conflict of the Security Interests: Can One Protected Purchaser Cut Off Another Protected Purchaser
  By Keith Pearson
• Using “Private Eyes” in Employee Investigations
  By Michael Baroni

Issue Number 3, 2006

• Mergers & Acquisitions Roundtable 2006
  By Lee Weinberg, Jeri Harman, John E. Mack III, Gary Rabishaw, Steve Sebastian, Douglas B. Schreier
• Executive Committee: Message from the Chair
  By Mark A. Moore
• Message from the Editor
  By Nina Yablok
• Using Early Exercise Stock Options to Attract, Motivate, and Retain Employees of Emerging Growth Companies: Pitfalls and Practical Considerations
  By Troy Foster
• The Ease in Merging and Reorganizing LLC’s From a Federal Income Tax Perspective
  By Benedict Kwon
• A Review of Fiduciary Duties in California and Delaware Corporations
  By Edward Gartenberg
• Telecommuting: Advising Clients – Providing an Option for Law Firms
  By Nina Yablok
• Was That Mediation or Arbitration? Two New California Cases Beg the Question Again
  Ruth V. Glick

Issue Number 2, 2006

• Was it Mediation or Arbitration? Be Sure Everyone is on the Same Page
  By Ruth V. Glick
• Family Farmer Bankruptcy and the New Bankruptcy Law: Chapter 12 will be more Useful to California Farmers
  By Riley C. Walter
• Executive Committee: Message from the Chair
  By Mark A. Moore
• Message from the Editor
  By Catherine E. Bauer and David R. Haberbush
• You Think you Own your Web site?…Think Again: The Work-for-Hire Doctrine, Eisenhower’s Memoirs, and the Unsettled State of Copyright Protection When a Company Hires Consultants to do Work
  By Richard E. Korb
• Are California LLC Management Rights Assumable or Assignable Under 11 U.S.C. §365?
  By Robert Isaac Brayer
• The Jurisdictional Quagmire Continues - Calpine’s Bankruptcy Proceedings
  By Marc S. Cohen and Corrine J. Rebhun
• What is a Non-Equity Partner?
  By Phillip L. Jelsma
• Subrogation for Priority Taxes: An Unfair Advantage
  By Len Shulman and Philippe Melin

Issue Number 1, 2006

• Pricing Private Company Stock Options to Avoid the Pitfalls of IRC 409A
  By John Heber
• California Supreme Court Issues Landmark Decision in Jury Waiver Case
  By Robert S. Gillison
• Executive Committee: Message from the Chair
  By Mark A. Moore
• Message from the Editor
  By Albert B. Maggio Jr. and James P. Menton
• California Courts Render Key Pro-Employer Rulings In 2005—A Year In Review
  By Sharon B. Bauman
• Highlights of the 2005 Bankruptcy Reform Legislation of Interest to General, Business, and Family Law Practitioners
  By Colin W. Wied
• The Sarbanes-Oxley Act: This is Not Your Parent’s Whistleblown Statute—Private Companies, Criminal Liability and Other “Hidden” Treasures
  By Niall A. Paul, James A. Walls, and Adam L. Maynard
• Directors’ And Officers’ Insurance: Don’t Leave Home Without It!
  Gia Honnen Weisdorn, Melanie Stallings Williams, & Linnea Bernard McCord

Issue Number 4, 2005

• Information Security: Litigation Risks and Developments
  By Robert V. Hale II, Esq
• The Business Lawyer’s Ten Commandments to Live By in a Criminal Tax Investigation
  By David B. Porter
• Executive Committee: Message from the Chair
  By Mark A. Moore
• Message from the Editor
  By Nina Yablok
• UCC Financing Statements—What’s In A Name?
  By Neil J. Rubenstein, Esq.
• Partner Guarantees
  By Robert S. Gillison, Esq.
• Manufacturers And Distributors Beware: If You Don’t Have A Written Contract With Your Sales Representatives, You May Be Liable For Treble Damages And Attorney’s Fees
  By Richard E. Korb, Esq.
• The New Servicemembers’ Civil Relief Act – Protecting Those Who Serve
  By Stefan Sven Lawrence
• Changes To The Bankruptcy Code Affecting Small Business Reorganizations
  By Paul J. Pascuzzi
• California Supreme Court Issues Landmark Decision in Jury Waiver Case
  By Robert S. Gillison, Esq.
• This Is No Generic Decision—Discussing the Implications of the Brand X Case on Cyberspace
  By Paul E. Ambrosio, Esq.
• Business Law Section Web sites Index: CLE, Practice Tips, Guides, Forms, Legislation And More…

Issue Number 3, 2005

• Mergers & Acquisitions Roundtable 2005
  By Lee Weinberg
• Executive Committee: Message from the Chair
  By Suzanne S. Graeser
• Message from the Editors
  By Leslie Ravestein and Lee Weinberg, Co-Editors
• Harry C. Sigman Receives Business Law Section's Lifetime Achievement Award
  By Roland E. Brandel
• The Challenge of Earnout Provisions In Acquisition Agreements
  By Mark A. Bonenfant
• The California Fairness Hearing and The Exemption from Registration under Section 3(a)(10) of the Securities Act of 1933
  By Russell J. Wood
• State vs. State: The Delaware Supreme Court Declares Unconstitutional a California Statute That Applies California Law to Delaware Corporations
  By John A. Laco
• Advising the Board of Directors in Acquiring a Business
  By Stewart M. Landefeld, S. Paul Sassalos and Ryan A. Arai
• Is Your M&A Checklist Obsolete? Leading Edge Data Privacy And Security Issues
  By Francoise Gilbert
• Business Law Section Web sites Index: CLE, Practice Tips, Guides, Forms, Legislation And More…

Issue Number 2, 2005

• The Bankruptcy Auction Block: A Primer for Acquiring Assets
  By Jeffrey S. Shinbrot
• Bad Faith Filings And Solvent Tenant Bankruptcies
  By Phillip K. Wang
• Executive Committee: Message from the Chair
  By Suzanne S. Graeser
• Don’t Take for Granted the Drafting of a“Simple” Assignment Provision, Especially in a Non-Exclusive Intellectual Property License, You May End Up in a Bankruptcy Court
  By Robbin L. Itkin and Katherine C. Piper
• Calculation of Holdover Rent in a Claim for Commercial Lease Rejection Damages
  By Christopher V. Hawkins
• Insights on a Mega-case: An Interview With Judge Montali on the PG&E Case
  Interview Conducted By Catherine Bauer
• The Aftermath And Jurisdictional Quagmire Following California’s Energy Crisis
  By Marc S. Cohen and Corrine J. Rebhun
• Don’t Be An Impediment To A Mediated Settlement
  By Gerald F. Phillips and Susan Keenberg
• “Houston, We Have A Problem" -- A Review of Courting Failure: How Competition For Big Cases Is Corrupting The Bankruptcy Courts, By Professor Lynn M. Lopucki
  By Rodger M. Landau
• Business Law Section Web Sites Index: CLE, Practice Tips, Guides, Forms, Legislation and More…

Issue Number 1, 2005

• The Remedies Opinion Re-Examined
  By The Business Law Section Opinions Committee
• Executive Committee: Message from the Chair
  By Suzanne S. Graeser
• BLN Editorial Board: Message from the Editor
  By David M. Pike
• California Corporate Disclosure Act
  By David S. Caplan
• Significant Revisions to the California Franchise Investment Law
  By David E. Holmes
• Calendar of Events
• BLS Web site Guide

Issue Number 4, 2004

• An Interview With William R. Hambrecht
  By Tim Hoxie
• The Sarbanes-Oxley Act: Implications And Recommended Best Practices For Emerging-Growth Companies Grooming Themselves As Acquisition Candidates
  By Richard J. Maire, Blase P. Dillingham, And Daniel M. Friedland
• Executive Committee: Message from the Chair
  By Suzanne S. Graeser
• Message from the Editor
  By Louis R. Dienes
• California Legislature Passes Law Exempting Commercial Bridge Loans Made By Venture Capital Companies to Operating Companies From California Finance Lenders Law
  By Sandra L. Shippey
• What Happens After “Seed” Capital? Understanding the Series A Preferred Stock Term Sheet
  By Mercedes G. Salomon
• John B. Power Receives Business Law Section's Lifetime Achievement Award
  By Roland E. Brandel
• The Knorr-Bremse Case: The Attorney-Client Privilege And Attorney Work-Product Waiver Dilemma Resulting From Producing Exculpatory Legal Opinions In Patent Litigation
  By Anthony Russo And James R. Stewart
• Trademark Licensing-Watch Out for the Minefields
  By Scott Hervey
• LLC’s For Start-Ups: Yes or No?
  By David L. Keligian, J.d., Mba, Cpa
• Understanding the New Form 8-K: An Overview of the New Disclosure Requirements
  By Lee Kolodny And Elena Dubinsky
• Immigration Solutions for New Businesses
  By Matthew J. Martinez
• Investing In Your Client and Other Ethical Problems in Representing Early-Stage Companies
  By Jonathan T. Rubens
• The 2003 Revision of Article 7, Ucc: Bringing Documents of Title into the 21st Century
  By Prof. Arnold S. Rosenberg
• Business Law Section: Calendar of Important Dates

Issue Number 3, 2004

• In Memoriam: Jeff Turner
  By Steven O. Weise
• Secrets and Liens: What You Need To Know
  By Peter C. Bronson
• Executive Committee: Message from the Chair
  By Charles L. Crouch, III
• Message from the Editor
  By Robert Stempler
• An Approach to Valuing the Closely Held Company
  By James H. Schilt
• War Stories: Arguing Before the Supreme Court
  By David Haberbush
• Ronald Wilson Reagan, 1911-2004 A Business Oriented Retrospective
  By Edward B. Driscoll, Jr.
• Some Thoughts on Fiduciary Duties to Non-Shareholder Constituencies
  By Daniel J. Weise

Issue Number 2, 2004

• DeCSS Code on the Internet
  By G. Keith Roberts
• Gender Identity
  By Richard D. Schramm
• Executive Committee: Message from the Chair
  By Charles L. Crouch, III
• P&P Committee: Message from the Editor
  By Albert B. Maggio, JR.
• Corporate Officer’s Fiduciary Duty
  By Paul J. Pascuzzi and Christa K. McKimmy
• Developments in Cyberspace Law
  Compiled By Daniel L. Appelman and Nina Yablok
• Joint Ventures and Strategic Alliances
  By Louis R. Dienes
• Jury Trial Waivers
  By David W. Thil
• Book Review
  By James H. De Meules
• Calendar of Events
• Executive Committe Retreat Photos
• CLE Opportunities and Legal News Available Free from Your Committees

Issue Number 1, 2004

• Online Privacy Protection Act of 2003
  By Daniel Appelman
• Due Diligence
  By John W. Brooks
• Executive Committee: Message from the Chair
  By Charles L. Crouch, III
• P&P Committee: Message from the Editor
  By Nina Yablok
• California's Privacy Revolution
  By Behnam Dayanim and Patrick Togni
• Can You Spam After Anti-Spam?
  By Delphine Guerre-Larrouilh and Marla Hoehn
• Internal Investigations
  By Darryl P. Rains and Ryan G. Hassanein
• Turnaround Law
  By Richard H. Zahm
• OPPA Annotated Form
  By Daniel Appleman
• Spring Meeting
• Standing Committees Application
• Calendar of Events

Volume XXIII, Issue 4, 2003

• Organizing a California Professional Corporation
  By Carl K. Lucas and Leslie R. Ravestein
• Executive Committee: Message from the Chair
  By Chalres L. Crouch, III
• Message from the Editor
  By Robert Stempler, Co-Chair of the Programs and Publications Committee and Co-Editor
• AB 1294: Debt Collection and Identity Theft
  By Scott J. Hyman and Laura Greco
• A Public Commentary From the Corporations Committee: "At Every Peril" New Pressures on the Attorney-Client Relationship
  By Keith Paul Bishop, Steven K. Hazen, Nancy H. Wojtax and Daniel J. Weiser (Drafting Committee)
• New Rules For Telemarketers: FTC "Do Not Call Regulations"
  By David Lawson
• New Privacy Rights for Californians
  By Elizabeth A. Huber and Alicia H. Tortarolo
• Making Jury Trials A Thing of the Past?
  BY Debra Lewis
• A Refresher on Corporate Revivor
  By John F. Nobbs

Volume XXIII, Issue 3, 2003

• Taking a Closer look at the “Golden State”
  By Allan Zaremberg
• California State Unemployment Insurance: 2004 Rate Increase and a Surcharge
  By Rebecca Harshberger
• Executive Committee: Message from the Chair
  By Timothy Hoxie
• Message from the Editor
  By Wayne Johnson
• Business Law Section Legislative Proposals
  By Jerome A. Grossman
• William M. Burke Receives Business Law Section's Lifetime Achievement Award
  By Roland E. Brandel
• The Ethics of Non-Equity Partners at California Law Firms
  By Phillip L. Jelsma
• Protecting Consumer Privacy During Credit Card Purchases
  By Neil Fineman
• Business Law News Interview With California Chamber of Commerce General Counsel Fred L. Main
  By Steven Kaufhold
• 2003 Business Law News Questionnaire
• Business Law Section: Calendar of Important Dates

Volume XXIII, Issue 2, 2003

• California's New Corporate Disclosure Law
  By David Caplan
• Personal Liability for In-House Legal Opinions - Is It Worth the Risk?
  By Carolyn Harris
• Executive Committee: Message from the Chair
  By Timothy Hoxie
• Hard Times Ahead for Counterfeiters: How Tough Legislation Aims to Foil the Counterfeiting Industry
  By H. Kim and Sean O'Neill
• "Orphaned" Public Companies and the Going Private Alternative
  By Christopher Ivey and Timothy Stickle 
• Reforming California's Unfair Competition Law
  By Franklin D. Kang

Volume XXIII, Issue 1, 2003

• Recent U.S. and International Developments in Online Liability
  By Louis R. Dienes
• Identity Theft: Consumers, Creditors & Criminals Civil and Criminal Enforcement
  By Elizabeth Huber
• Executive Committee: Message from the Chair
  By Timothy Hoxie
• Protecting Your Firm and Clients From Identity Theft
  By Mari Frank
• New Stock Plan Disclosure Rules
  By Kirk Maldonado
• The Bankruptcy Trustee's Standing to Pursue Alter Ego Claims
  By Thomas R. Phinney
• Employee Covenants Not to Compete: The Myth of Enforceability and Alternative Protective Measures Available to California Employers
  By Ross E. Shanberg 
• BusinessLaw Section 4th Annual Spring Meeting: Corporate Governance and Ethics

Volume XXII, Issue 3, 2002

• Marshall L. Small Receives Business Law Section Outstanding Achievement Award
  By John B. Power and Roland E. Brandel
• California vs. Delaware: A Corporate Law Comparison
  By Cynthia Ribas
• Executive Committee: Message from the Chair
  By Edith R. Warkentine
• Sarbanes-Oxley Act of 2002
  By Edward Gartenberg and Shirley Hayton
• The First Anniversary of Revised UCC Article 9: Traps for the Unwary
  By Neil J. Rubenstein
• Legal Opinions Under Revised Article 9, or How Do I Write A Delaware Law Opinion?
  By James D. Prendergast
• Trends and Observations in Private Company M&A
  By Bradley D. Schwartz and Daniel C. Burnham
• Cybersquatter Problem! Litigate or Arbitrate?
  By G. Keith Roberts
• Legislative Update: Covenants Not to Compete
  By John J Camozzi

Volume XXII, Issue 2, 2002

• Multijurisdictional Practice Of Law Or Unauthorized Practice Of Law – Survey Of The Issue
  By Jonathan L. Block, John M. Dab & Amy Gustafson Finch
• Your Business Law Section Goes Electronic: E-news And More
  By Roland E. Brandel
• Executive Committee: Message From The Chair
  By Edith Warkentine
• Developments In Tax Law 2001: The Top Ten Things Every California Business Lawyer Should Know
  By Mark R. Siek 
• UCC Committee: Sample Forms Of Deposit Account Control Agreements

Volume XXI, Issue 4, 2001

• Executive Committee: Message From The Chair
  By Edith Warkentine
• Overcoming The Statute Of Frauds Defense To Electronic Contracts Through Application Of E-sign, Ueta, Or Other Relevant Law
  By Ruth A. Strauss
• Privacy Update: The Ftc Privacy Regulations Under Title V Of Gramm-leach-bliley – Part I
  By Elizabeth A. Huber and Alicia H. Petrarca
• Legislative Update: Partnerships And Limited Liability Companies Committee
  By William F. Webster
• - Special Section -
  Consumer Financial Services Committee: Recent Developments In Consumer Class Action Litigation
  By Julia B. Strickland and Andrew W. Moritz
• Recent Developments In Consumer Financial Services Arbitration
  By Julia B. Strickland, Scott M. Pearson and David W. Moon

Volume XXI, Issue 3, 2001

• Security Interests In Patents After Cybernetic Services
  By Jeffrey S. Turner
• California’s Adoption Of The Federal Fair Debt Collection Practices Act
  By Scott J. Hyman
• Executive Committee: Message From The Chair
  By Twila L. Foster
• Statement Of The Business Law Section Of The State Bar Of California
• George Richter Receives Business Law Section Outstanding Achievement Award
  By John B. Power
• Business Law Section Members Invited To Join New Ad Hoc Committee On Adr
  By Gerald F. Phillips and James A. Hayes, Jr
• Special Feature - Pull Out Insert
  Working Capital Financing In The New Economy: Current Legal Issues and the Need for Federal Legislative Reforms
  A Report By The Uniform Commercial Code Committee

 

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The Business Law News is distributed at no charge to members of the Business Law Section of the State Bar of California. The statements and opinions in the Business Law News are those of the editors and contributors and not necessarily those of the State Bar of California, the Business Law Section, or any government body. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered and is made available with the understanding that the publisher is not engaged in rendering legal or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.