Business Law News Masthead
Business Law News

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.

Tables of Contents of Recent Issues

Issue Number 2, 2014
Issue Number 1, 2014

Issue Number 4, 2013
Issue Number 3, 2013
Issue Number 2, 2013
Issue Number 1, 2013

Issue Number 4, 2012
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, 2014

  • Executive Committee: Message from the Chair
    By Charles E. McKee
  • BLN Editorial Board: Message from the Editor
    By Robert Brayer
  • California Legislature to Consider Amendments to UCC Article 9 Regarding Name of Individual Debtor
    By Neil J. Rubenstein
    This article discusses a proposed amendment to Uniform Commercial Code Article 9, about individual debtor names on UCC financing statements, which is currently pending in the California legislature. It presents a different perspective to that expressed by Harry Sigman in his article published in Issue No. 4, 2013 of Business Law News.
  • The Driver's License Rule Is Not Needed in California
    By Harry C. Sigman
    Mr. Sigman's rebuttal to Mr. Rubenstein's article "California Legislature to Consider Amendments to UCC Article 9 Regarding Name of Individual Debtor."
  • Michael Jackson Tax Case is a Thriller
    By Robert W. Wood
    Representatives for the Estate of Michael Jackson are locked in a bitter court battle with the IRS. Although the pop star's estate continues to pay income taxes, the court battle is over estate tax based on the value of his assets at death. A key disagreement is the worth of his likeness and intellectual property. The estate's lawyers say it may have gone up after the entertainer's death, but it was at a low point when he died.
  • Protecting Tax Refunds of Consolidated Tax Filers in Bankruptcy
    By Jennifer E. Niemann and Paul J. Pascuzzi
    This article reviews recent case law regarding the ownership of tax refunds of consolidated tax filers in bankruptcy. The article also covers issues that counsel to consolidated filers should consider in drafting tax sharing agreements to express unambiguously the intended relationship between the consolidated filers under recent case law.
  • Enforcement of Non-Debtor Releases in International Insolvency Proceedings
    By Reno F.R. Fernandez III and Uzzi O. Raanan
    There is confusion over when a foreign plan of reorganization providing for non-debtor releases can be enforced under the international insolvency rules of Chapter 15 of the Bankruptcy Code. This article analyzes two recent cases illustrating the divergence of approaches, with In re Vitro, S.A.B. de C.V., 701 F.3d 1031 (5th Cir. 2012) applying a strict standard, and In re Sino-Forest Corp., 501 B.R. 655 (Bankr. S.D.N.Y. 2013) applying a flexible approach.
  • Expanding Whistleblower Protection Under The Sarbanes-Oxley Act (Or, George Clooney, Litigious Babysitters, and Enron At The Supreme Court)
    By Shawn M. Larsen
    In the wake of the Enron scandal, Congress enacted the Sarbanes-Oxley Act of 2002. This extensive framework of rules was designed to prevent corporate wrongdoing and protect whistleblowers. The question of extending the rules beyond employees of publicly-traded companies to employees of the contractors with whom those companies work was left open. With its recent decision in Lawson v. FMR, LLC et al., the U.S. Supreme Court answered that question in the affirmative. In doing so, the Court sent a clear message to employers that the Act's purposes take precedence over fears of frivolous lawsuits.
  • Casenote: The Jolley Case
    By William Webb
    In Jolley v. Chase Home Finance, LLC, the California First District Court of Appeal held that a construction lender owes a duty of care to the borrower under certain circumstances. The decision has garnered attention from lenders and borrowers alike. This article takes a close look at the Jolley case and its consequences.

Issue Number 1, 2014

  • The 2013 Mortgage Servicing Final Rules
    By Denyse Jones

    On January 10, 2014, the Consumer Protection Finance Bureau enacted the 2013 Mortgage Servicing Rules to address the abusive practices identified after the 2008 financial crisis.  These Rules amend Regulation X that implements the Real Estate Settlement Procedures Act and Regulation Z that implements theTruth in Lending Act.  Although the Rules are designed to provide consumers with detailed timely information regarding their mortgages, they require mortgage servicers to disclose more information in less time and will likely drive up servicing costs. The new rules address mortgage servicing transfer disclosures, escrow payments, error resolution procedures, force-placed insurance, early intervention, continuity of contract, loss mitigation procedures, ARM disclosures and periodic statements. This article provides a summary of each rule.  Denyse Jones is an attorney at Husch Blackwell LLP and is a resident of its St. Louis office. She specializes in commercial litigation. Her email address is denyse.jones@huschblackwell.com.  

  • Executive Committee: Message from the Chair
    By Charles E. McKee

  • BLN Editorial Board: Message from the Editor-in-Chief
    By Robert Brayer

  • Standing Committee Spotlight: Consumer Financial Services Committee
    By Rita Lin

  • The New Ability-to-Repay and Qualified Mortgage Rules Under Dodd-Frank and Regulation Z: An Overview
    By Robert K. Olsen and Jessica Nguyen

    Effective January 10, 2014, the Consumer Financial Protection Bureau (“CFPB”) implemented new “Ability to Repay” (“ATR”) requirements under Regulation Z in response to reckless lending and the 2008 financial crisis.  The rule requires a creditor to make a “reasonable and good faith determination” that a consumer will be reasonably able to repay a mortgage loan, without resort to refinancing or sale of the property.  One permitted ATR approach is to originate a “qualified mortgage” (essentially a government conforming mortgage), thereby triggering either a safe harbor or presumption of compliance, depending upon the loan’s interest rate.  Other approaches are permitted as well, in a regulatory effort to preserve market flexibility.  Each compliance method brings its own costs and risks, which creditors should evaluate based on their particular risk appetite and target market.  This article briefly summarizes the substance of the new ATR Rule and explores the internal risk and compliance management measures all residential mortgage lenders will need to take to minimize their troubles under the new rule.

    Robert K. Olsen is a principal of Aldrich Bonnefin & Moore, PLC in Irvine, California and head of the firm’s Consumer Practice Group.  He may be reached at rolsen@abmlawfirm.com.  Jessica M. Nguyen is an associate of Aldrich Bonnefin & Moore, PLC.  She can be reached at jnguyen@abmlawfirm.com.

  • A Look at the Consumer Financial Protection Bureau's ECOA "Disclosure and Delivery" Valuations Rule
    By Sanford Shatz

    The Consumer Financial Protection Bureau’s ECOA Disclosure and Delivery Valuations Rule, effective January 18, 2014, is designed in part to ensure transparent lending to informed consumers.  The rule requires that creditors inform credit applicants that they have a right to receive a copy of any property valuation developed in connection with an application for credit that is secured by a first lien on a dwelling, and that the creditor promptly provide a copy of that valuation to the applicant upon completion.  The rule is intended to help borrowers uncover invidious discrimination in the preparation of property valuations. 

    The article explores the requirements and operation of the Rule, the loans that are covered by the Rule, the nature of an extension of credit, the definition of an appraisal or other written valuation, and timing requirements in the Rule.  The article concludes with practice tips for consumers and creditors.

    Sanford Shatz is Of Counsel to McGlinchey Stafford and is resident in its Irvine, CA office.  He specializes in consumer financial services including litigation of mortgage-related issues, and providing regulatory and compliance advice.  His email address is sshatz@mcglinchey.com.

  • The CFPB's Version of the Home Ownership and Equity Protection Act
    By Adam Jaskievic, Esq.

    On January 10, 2014 the Consumer Finance Protection Bureau (CFPB) implemented substantial revisions to the Homeownership and Equity Protection Act (HOEPA).  To accomplish these revisions, the Bureau amended Sections 1026.32 and 1026.34 of the Truth-In-Lending Act (TILA) governing high-cost mortgages as well as Section 1024.20 of the Real Estate Settlement Procedures Act (RESPA) governing homeownership counseling services.  One goal of the Bureau’s amendments was to enhance consumer knowledge and understanding of mortgage products through the expansion of homeownership counseling requirements.   Under the new amendments, the Bureau now requires that lenders provide all borrowers, regardless of product type or risk level with the contact information of counseling services available in their area.  Additionally, the Bureau now effectively requires some borrowers to complete counseling prior to obtaining certain loan products.  While some may argue that such changes may be positive, or at the very least, relatively benign, not all of the HOEPA changes were without negative side effects.  The amendments to TILA’s high-cost coverage removed a previous, long standing exemption afforded to purchase transactions and home equity lines of credit.  The amendments also lowered the APR threshold in one of the tests used to determine whether a loan is considered high cost by 1.5 percentage points, a substantial decrease.  This simultaneous expansion of products subject to high-cost tests along with the lowering of the threshold, coupled with creditors’ historic apprehension to offer high-cost loans, renders it almost certain that a subset of borrowers will now see their access to credit dwindle even further. 

    Adam Jaskievic is Counsel at Ocwen Financial Corporation and is based out of its Massachusetts office.  He specializes in mortgage banking regulatory compliance.  His email address is adam.jaskievic@ocwen.com.

  • An Overview Of The CFPB's Higher-Priced Mortgage Loan Escrow Rule
    By Kristina A. Del Vecchio

    The Higher-Priced Mortgage Loan Escrow Rule is among the numerous rules that the Consumer Financial Protection Bureau (“CFPB”) has promulgated affecting the mortgage market.  The rule became effective on June 1, 2013 and implemented statutory changes made by the Dodd-Frank Act to amend provisions of Regulation Z that require creditors to establish escrow accounts for higher-priced mortgage loans (HPMLs).  This article provides a detailed discussion of the major provisions of the new rule, which (1) lengthens the time for which a mandatory escrow account must be maintained from one year to five years, (2) creates an exemption from the escrow requirement for small creditors operating predominately in rural or underserved areas, and (3) extends an existing exemption from the escrow requirement for insurance premiums for condominium units to other types of properties which are covered by a master insurance policy.   The article also address relevant provisions of the CFPB’s new TILA-RESPA rule, which was released on November 20, 2013.  It is imperative that creditors thoroughly understand and implement the requirements set forth by rules (along with the myriad other new mortgage-related rules recently promulgated by the CFPB) and work to begin implementing the related disclosure changes set forth in the TILA-RESPA rule.

  • A Look at the Consumer Financial Protection Bureau's TILA Rule Regarding Appraisals for Higher-Priced Mortgage Loans
    By Sanford Shatz

    The Consumer Financial Protection Bureau’s TILA rule regarding appraisals for higher-priced mortgage loans, effective January 18, 2014, is designed to protect lenders from over-loaning on a specific property to avoid catastrophic losses if borrowers default or property values decline.  The rule is also designed to promote the informed use of consumer credit by requiring disclosures about its costs and terms. 

    This article explores the Rule’s requirements imposed on lenders who originate higher priced loans, where the annual percentage rate exceeds the average prime offer rate by specified amounts.  These requirements include providing additional disclosures, mandating that property valuators meet certain licensing standards, and that the appraisals include an interior inspection of the subject property.  The article also discusses the disclosure requirements a lender must meet to comply with the rule. 

    Where properties are resold within a short period of time at a higher price, or “flipped,” the article explains the additional requirements imposed on lenders, including obtaining an additional higher-priced appraisal of the property at no additional charge to the borrower.  Finally, this article compares the CFPB’s TILA appraisal rule with the CFPB’s ECOA valuations rule. 

    Sanford Shatz is Of Counsel to McGlinchey Stafford and is resident in its Irvine, CA office.  He specializes in consumer financial services including litigation of mortgage-related issues, and providing regulatory and compliance advice.  His email address is sshatz@mcglinchey.com.

Issue Number 4, 2013

  • Mike Halloran Receives the Business Law Section's Lifetime Achievement Award
    by Steven O. Weise

  • Executive Committee: Message from the Chair
    by Charles E. McKee

  • BLN Editorial Board: Message from the Editor-in-Chief
    by Robert Brayer

  • When is a Settlement Agreement Litigation by Other Means?
    by David J. Cook

    In litigation, nirvana settlements end the conflict between the parties. Peace in our time. Through inadvertence, error or trickery, some settlements spawn Sisyphean disputes that dump the parties back into court A wishy-washy settlement enables a defendant to litigate through the gaps, holes and traps doors of a poorly drafted settlement agreement. The defendant sings "Free at Last," while the plaintiff sings the blues. Untangled from the onerous settlement terms, the defendant exits the maelstrom reasonably unscathed.

    A poorly drafted settlement agreement topples the plaintiff's settled expectation under agreement. If litigation was dismissed with prejudice in exchange for the signed settlement agreement, but fails to request that the court retain jurisdiction, plaintiff might find itself on the courthouse curb. Settlements bear their own statute of frauds of a writing signed by both parties or orally before the court. Bring a court reporter. Absent the return "E" ticket to court, a party would have to file a new, separate action to enforce the settlement agreement and would face the impediments of the statute of limitations, venue, and other evils of litigation. The nightmare is round #2 of protracted litigation (or arbitration if so agreed). Original trial counsel might even have to be a witness in such an action, as disputes over settlement agreements sometimes revolve around "who said what to whom." This is very ugly. The prospect that counsel might be a witness could compel the party to hire substitute counsel at enormous expense, and the party might blame the original trial counsel for this turn of events. The article offers oodles of remedies to compel the parties to perform their respective covenants, warranties and promises to ameliorate the risk that the settlement may continue the litigation by other means. Settle for money, and do not settle just to settle.

  • Corporations for the 99%: California's New Social Enterprise Corporations Legal Reform in Two Acts
    by Spencer W. Weisbroth, Esq.

    On January 1, 2012, California authorized two new types of corporation: the "Benefit Corporation," and the "Flexible Purpose Corporation" (FPC). In so doing, California became part of a growing number of states that have authorized hybrid corporations: for-profit corporations with some hallmarks traditionally associated with non-profit corporations. The objective in creating these two new hybrid corporate entities is to allow for-profit corporations who elect to be governed under these statutes to consider criteria in the public good when making corporate decisions. In California, a Benefit Corporation is defined as a stock corporation that has elected to become a Benefit Corporation to pursue "public benefits." The "benefits" that a Benefit Corporation pursues must be for the general public benefit, meaning, "a material positive impact on society and the environment, taken as a whole, as assessed against a third-party standard, from the business and operations of a benefit corporation." The FPC allows a corporation to operate as a for-profit while taking into consideration special social purposes or missions traditionally in the realm of non-profit corporations. An FPC is organized for the purpose of promoting positive short-term or long-term effects, or minimizing adverse short-term or long-term effects, of the flexible purpose activities. The ability of a company to consider short-term effects is one of the distinctions between FPCs and Benefit Corporations. For progressive or forward thinking corporations, these new entity forms provide an exciting opportunity to forge a "third way," freeing corporations to pursue social good, with assurance, transparency and accountability.

  • Two Steps Forward, One Step Back: Comparing Benefit Corporation Laws in Delaware and California
    by Frank Vargas and Michael Vargas

    Delaware recently began allowing companies to incorporate in that state as Benefit Corporations, which in Delaware are called "Public Benefit Corporations." Interestingly, Delaware chose not to adopt the Model Benefit Corporation Legislation ("MBCL"), which had served as the template for legislation in other states, most notably California and New York. Commentators, especially those supportive of the MBCL, have chastised Delaware's move as "hedging their bets" and "a watered-down" version of earlier statutes. However, the authors of the article believe the Delaware statute represents more than "hedging their bets" or a "watered-down" version of earlier statutes. It represents a choice between two competing visions for encouraging socially conscious entrepreneurs. California, one of the first states to adopt the MBCL, seeks to promote socially conscious entrepreneurship through a strict statutory and regulatory scheme. By contrast, Delaware's new law encourages innovation by giving entrepreneurs extensive flexibility and wide latitude to pursue an ever-growing cache of public causes. The article argues that Delaware's new Public Benefit Corporation statute is an improvement on the MBCL adopted in California by identifying specific provisions that encourage innovation in the Delaware law, but acknowledges that the Delaware statute still leaves a number of important issues unresolved.

  • Dissociation: A New Concept for a New LLC Act
    by Phillip L. Jelsma

    The new California Revised Uniform Limited Liability Company Act, which took effect on January 1, 2014, introduced the concept of member dissociation, which was not found in the prior Beverly-Killea Limited Liability Company Act. Previously, if a member died or was adjudged incompetent, the member's executor, administrator, guardian, conservator, or other legal representatives could exercise all of the member's rights for purposes of settling the estate or administering the member's property. This included any power that the member had under the articles of organization or operating agreement to give the assignee the right to become a member. The New LLC Act provides that a member has the power to dissociate at any time either rightfully or wrongfully by express will of the dissociating member. In addition to describing what will trigger a dissociation, the New LLC Act also provides for what happens following dissociation. The new dissociation provisions present an opportunity for drafters of the operating agreement to consider what affect, if any, a bankruptcy, death, or dissolution should have on the member's status as a member. Practitioners should review the statutory default provisions concerning dissociation to better help clients and their advisors decide whether to keep, modify, or eliminate the statutory dissociation provisions.

  • Test Your Knowledge: Recent Developments in Insolvency Law
    by Tom Phinney and Paul Pascuzzi

    This article uses an engaging format to test your knowledge of significant recent developments in the area of insolvency law. The authors survey seven leading cases on issues such as bankruptcy jurisdiction, relief from the automatic stay, and the "absolute priority rule" in individual chapter 11 cases. The article also discusses legislative developments concerning the naming of individual debtors in UCC-1 financing statements. The authors provide a summary of the facts and issues in each case and then ask you to choose the answer(s) that reflects the holding of the court. The article also provides a short commentary on each holding. Good luck!

  • Individual Debtor Names on California UCC Financing Statements (A Bullet Dodged, So Far)
    by Harry C. Sigman

    This article analyzes in depth the rule enacted in California last year, scheduled to become effective on July 1, 2014, with respect to individual debtor names on UCC-1 financing statements, and argues that this rule is better, and, in particular, more appropriate for California, than the driver’s license rule adopted by most other states.  In addition, it presents a detailed explanation of how the filing and search practice actually functions in California, which has a modern, low cost and efficiently operated Secretary of State’s UCC filing office.  The author asserts that there is no need to depart from the individual debtor name rule that has worked so well in California for many decades, and notes that; unlike the driver’s license rule, the modified rule does not oblige California lawyers to change the naming practice with which they have long been familiar.

     

    Harry C. Sigman enjoys an international reputation for his expertise in commercial law.  He conducts a consulting practice, specialized in commercial law, in Los Angeles.  He can be reached at hcsigman@aol.com.

Issue Number 3, 2013

  • Gun Control Legislation: An Interview With Randy Barnett
    By Nina A. Ortega
    Page 1

    Business Law News (Issue 3 2013): Gun Control Legislation:  An Interview with Randy Barnett.  Professor E. Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center,  responds to the legal and personal viewpoints expressed by Dean Erwin Chemerinsky (UC Irvine School of Law) in the interview with Dean Chemerinsky  that appeared in Issue 2.  Professor Barnett talks to Business Law News Editorial Board Member Nina Ortega, pointing out what he considers to be common misconceptions about the Second Amendment to the United States Constitution and the proper legal interpretation of certain words and phrases regularly appearing in discussions of the Second Amendment.  Professor Barnett addresses his own understanding of the meaning of the Second Amendment in historical context and as interpreted by the United States Supreme Court in more recent times; explains why he thinks that the term "assault weapons" is too ambiguous to use as a legal standard and that recent proposals to ban certain types of guns and high-capacity magazines are unconstitutional; and expresses his concern over what he sees as according greater protection to some constitutional rights over others.

    Nina Ortega is Deputy General Counsel with American AgCredit, located in Santa Rosa California, and can be reached at nortega@agloan.com

  • Executive Committee: Message from the Chair
    By James P. Menton, Jr.
    Page 7

  • BLN Editorial Board: Message from the Editors-in-Chief
    By Robert Brayer and Marianne Man
    Page 8

  • Interview With Patrick M. Kelly
    By James Menton
    Page 9

    James Menton, outgoing chair of the Business Law Section, interviews Patrick M. Kelly, the 88th President of the State Bar, as his one-year term as president comes to a close.  Mr. Kelly, a veteran trial lawyer and regional managing partner at Wilson Elser Moskowitz & Dicker LLP, talks about the mission and work of the State Bar (addressing, among other things, how the State Bar works to protect the public--including handling admissions to the Bar, disciplining members, providing continuing legal education and securing funding for Legal Aid); the importance of the State Bar's Sections in assisting the State Bar to achieve its goals--for example, by undertaking mentoring programs such as the one sponsored by the Business Law Section; his goals and experiences as president for the past year; his love of music and the effect that has had on his legal career; and the benefits he has realized through his service to the Bar.

    James Menton is a Partner at Peitzman Weg LLP, in Los Angeles. He is a litigation attorney, whose practice is primarily focused on business litigation, bankruptcy and creditor's rights.  His email address is jmenton@peitzmanweg.com.

  • California Supreme Court Overrules Pendergrass and Permits Evidence of Promises at Variance with the Terms of a Contract
    By Kathleen Kizer and Donna Parkinson
    Page 17

    In Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass'n, 55 Cal.4th 1169, 1180-81 (2013), the California Supreme Court reversed long-standing precedent established in Bank of Am. Nat'l Trust and Sav. Ass'n v. Pendergrass, 4 Cal.2d 258 (1935), by holding that evidence of broken oral promises that contradict the express terms of an integrated contract are no longer barred by the parole evidence rule. Courts and commentators have long criticized Pendergrass because of its questionable foundation and rationale, principally because it squarely contradicted the statutory exception to the parol evidence rule permitting evidence of fraud and other matters that call into question the very validity of the contract. In Riverisland, the California Supreme Court analyzed the authorities pro and con, noted its own contrary decisions and the difficulties courts experienced trying to apply Pendergrass' rationale, and determined that even in 1932, "Pendergrass was plainly out of step with established California law." Because it was "ill-considered," it "should be overruled." This article explains the parole evidence rule, the fraud exception, the Pendergrass limitation, and the decision overruling Pendergrass, which will likely have a marked impact on business disputes and, in particular, disputes between lenders and borrowers.  It concludes with an exploration of the potential effects of the decision. 

    Kathleen S. Kizer is an attorney with DLA Piper LLP (US) in San Francisco. She specializes in resolving complex commercial disputes in state and federal court and in arbitration.  Her email address is kathleen.kizer@dlapiper.com.

    Donna Parkinson is the managing partner of Parkinson Phinney in Sacramento. She represents financial institutions, secured and unsecured creditors, creditors' committees, trustees in bankruptcy cases and workouts. Her email address is donna@parkinsonphinney.com.

  • Tax Implications of the Use by Tax Exempt Organizations of Limited Liability Companies in California
    By J. Patrick Whaley
    Page 23

    This article explains the federal and California tax consequences of use of an LLC by a tax-exempt entity to hold assets or carry on an activity.  The federal income tax implications and many of the California franchise and income tax implications of operating an LLC are relatively well known.  However, there are some California tax implications of operating an LLC that are less well known and that can lead to unwelcome surprises.

    In California, tax-exempt organizations may hold assets or conduct activities through a single-member or multi-member LLC without incurring any state or federal income taxes except on unrelated business taxable income.  Such an LLC will also be exempt from California property tax if all its members are exempt under Internal Revenue Code § 501(c)(3) or California Revenue and Taxation Code § 23701d and satisfy the requirements of the welfare exemption.  The LLC, however, will be obligated to pay special California $800 annual franchise taxes and California annual fees unless it is a qualifying title-holding entity that is exempt under either Cal. Rev. & Tax Code § 23701h or 23701x.  

    J. Patrick Whaley is a Partner at Musick, Peeler & Garrett LLP in Los Angeles, whose practice is primarily focused on nonprofit, tax-exempt organizations.  His e-mail address is p.whaley@mpglaw.com.

  • Ten Things You Should Know About Setoff and Recoupment in Bankruptcy
    By Holly A. Estioko and Paul J. Pascuzzi
    Page 29

    Setoff and recoupment are powerful tools that parties can use in debtor-creditor relationships, both in and out of bankruptcy.  This article discusses ten things every business attorney should know about the use of these tools in bankruptcy, including: (1) The right of setoff is preserved in bankruptcy; (2) Creditors must obtain relief from the automatic stay to effect setoff; (3) The strict requirements of Bankruptcy Code section 553 must be met; (4) A creditor with a right of setoff is a secured creditor in the amount of its right of setoff; (5) The right of setoff may be waived or denied; (6) A debtor may set off against a creditor as well; (7) The right of recoupment is recognized in bankruptcy; (8) The Ninth Circuit follows the "logical relationship" test in its recoupment analysis to determine whether relevant claims arise from the "same transaction"; (9) Some of the strict requirements of setoff do not apply to recoupment in bankruptcy; and (10) Common situations in which a creditor may assert a right of setoff or recoupment in bankruptcy.  Business attorneys should familiarize themselves with the specific requirements and potential uses of the doctrines of setoff and recoupment for the benefit of their clients in a bankruptcy case.

    Paul J. Pascuzzi is a partner at Felderstein Fitzgerald Willoughby & Pascuzzi LLP in Sacramento.  Mr. Pascuzzi's practice focuses on all aspects of business bankruptcy and insolvency law.  His e-mail address is ppascuzzi@ffwplaw.com.

    Holly A. Estioko is an associate practicing business bankruptcy law at Felderstein Fitzgerald Willoughby & Pascuzzi LLP.  Her e-mail address is hestioko@ffwplaw.com.

  • An Overview of the Process for the Attorney General's Review of Nonprofit Hospital Transactions
    By Charles E. Slyngstad
    Page 34

    This article describes the process by which the Attorney General's office reviews applications for the sale of assets, such as hospitals, by nonprofit entities.  It explains the statutory framework that governs the AG's review and the core concerns that must be addressed:  the effects of such sales on the charitable use of assets and the availability to the community of healthcare services.  It explains how those core concerns inform the sales process, and addresses (i) the form that the notice to the AG must take (sections describing the transaction, the fair market value of the assets involved, issues of inurement and self-dealing, the use to be made of the proceeds of sale, the impact of the transaction on health care services and competition, and other public interest factors, as well as a variety of specific information relating to the sale); and (ii) the evaluation process itself.  Finally, the article discusses both the availability of judicial review of the AG's determination and the standard of review that will apply.  The author explains the bases for seeking both administrative and traditional mandamus review, but finds the case law to date inconclusive as to which review should apply.  He concludes that the AG's review process has become sufficiently predictable so as to make litigation extremely rare, and is likely to remain unchanged for years to come.

    Charles E. Slyngstad is a Partner at Burke, Williams & Sorensen, LLP, in Los Angeles.  He represents hospitals, healthcare companies and health plans, and public entities, and is certified by the Board of Legal Specialization of the State Bar of California as a specialist in legal malpractice law.  His email address is cslyngstad@bwslaw.com.

Issue Number 2, 2013

Issue Number 1, 2013

Issue Number 4, 2012

  • Lifetime Achievement Award
    By Steven O. Weise
    Page 2

  • Executive Committee: Message from the Chair
    By James P. Menton, Jr.
    Page 5

  • BLN Editorial Board: Message from the Editor
    By Peter M. Menard
    Page 6

  • The U.N. Guiding Principles on Business and Human Rights: The Legal Context and Operational Implications
    By John G. Ruggie, Amy K. Lehr and Elizabeth M. Holland
    Page 7

  • CalSTRS and Corporate Governance
    By Anne Sheehan
    Page 14

  • Human Rights Due Diligence: A New Trend in Federal and State Legislation
    By Sarah A. Altschuller
    Page 20

  • The Effect of Kiobel v. Royal Dutch Petroleum on Doing Business Overseas
    By Anne Richardson
    Page 25

  • Efficiency, Competition, and Capital Formation: Assessing the SEC in Rulemakings
    By Daniel J. Davis
    Page 29

  • Guide to Business Law Section Publications
    Page 33

  • When a City Files Bankruptcy: Chapter 9 Basics for Business Attorneys
    By Jennifer E. Niemann and Paul J. Pascuzzi
    Page 35

  • Stern v. Marshall: The End of Bankruptcy Courts as we Know Them, or Just a Minor Correction to the Bankruptcy Code?
    By Monica Jewett-Brewster and Alan Vanderhoff
    Page 41

  • Dealing in Data: Business and Legal Considerations Respecting Data Transactions
    By Brian Anderson and Rachel Tarko Hudson
    Page 46

  • Legislative Activities of the Corporations Committee
    By Philip W. Peters
    Page 52

  • Recent Cases of Interest
    By Richard Burt
    Page 55

  • The ABA Business Law Section: Great Legal Minds and Cutting Edge Issues
    By Bruce Dravis
    Page 60

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.

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

 


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.