December 2008
Free Market
Free Market: System by which resource allocation is determined by private individuals on each side of a transaction, free, as much is possible, from government intervention or coercion.
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May The Enforcement Be With You: Copyright Licensing
Ordinarily, Toolbox would send you off for the holiday break with some lofty prose about what a great year it's been, and so on. But who's kidding who? To paraphrase Frank Sinatra, "When Toolbox was six, it was a very strange year." The price of oil climbed so high that people spent so much of their money buying gas that when the price finally fell, they had no money left to buy gas. The Cubs made the playoffs as favorites to win...and still lost; Yankee Stadium saw its last game. And of course, subprime, bailouts and market crashes, oh my. But 2008 wasn't all bad. The election of Barack Obama is a milestone whether you voted for him or not. Shea Stadium saw its last game—major positive. And Toolbox finally found a YouTube video that is clever enough to link to, doesn't violate any copyrights and exemplifies the new entertainment Toolbox spouted about without demonstrating in issues 28 and 42. (Here's a hint—it's a user-submitted music video though not user-authored or sung, i.e. by some kid, and the authors and performers of the music and lyrics, an a cappella comedy group called Moosebutter that doesn't appear visually in the video, is relishing, even advertising, that its work has been "swiped" and viewed nearly three million times.) Huzzah, the new paradigm works! So to close the year, Toolbox has a holiday, pop-culture video treat. But first, a long time ago in a copyright regime that seems far, far away....
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The New Karate Kid...TARP On, TARP Off: EESA Section By Section Analysis
When Mr. Miyagi gave Daniel the chores of waxing his cars, painting his fence and sanding his floors in Karate Kid, Daniel did so grudgingly, not realizing that with every paint-stroke, sand-stroke and wax-on/wax-off motion, he was learning karate. The realization only came later when he was ready to quit Mr. Miyagi's seemingly inept teaching methods, and Mr. Miyagi was forced to demonstrate how waxing cars was karate. Toolbox thinks the experience with the Emergency Economic Stabilization Act of 2008 (EESA) and its now infamous Troubled Asset Relief Program (TARP) are analogous in many respects. Treasury Secretary Paulson and Fed Chair Ben Bernanke keep imploring us to let their credit-thawing mechanism take hold, even as the program keeps changing (TARP On, TARP Off) but the public can't see the impact. Of course, if people followed the TED Spread (as readers of sister publication Pocket MBA do), they would know that the thaw is underway, even if at a glacial pace. For lawyers, on the other hand, the increasing number of companies in seemingly disparate industries trying to make a play for TARP dollars by finding the part of themselves that qualifies as a "financial institution" means more lawyers need to understand the thawing agents.
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The Corporate New Year's Resolution—Revised Codes Of Conduct For 2009
New Year's Resolutions tend toward the possible, yet improbable, in terms of long-term goals: lose weight; go to the gym everyday; never go into debt. For companies, each New Year brings opportunities to snag new and improved business opportunities, to streamline, to be more profitable and offer better shareholder value. Like those personal resolutions, these are not entirely within the control of the entity. The economic and political environments, as well as the plans of competitors can impact the extent to which companies live up to a business plan. So for 2009, the CC thought it would be time to consider something that was totally within a company's (and not coincidentally an individual's) control: codes of conduct.
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Compensation Clawback
Compensation Clawback: Contract or other provision, contingent on particular events, that enables the recoupment of payments made
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Because Someday, There Will Be Another U.S. IPO, And It Might Just Be Your Client Located In France: U.S. IPO Guide For Foreign Companies
From the "if Toolbox had something to sell, it would do an offering" department: In the first nine months of 2007, there were 195 U.S. IPOs in U.S. Markets. This year, for obvious reasons, the number has plunged, with just 54 through September. Visa's big coming out party back in the spring comprised over half the market value of those offerings. Indeed, in the second quarter, there was nary a single, venture-backed IPO in the U.S. Times are tough, and when the going gets tough, the tough look for money from abroad. So it is that Toolbox is proud to report that, according to this report in the Dealbook Blog, your colleagues expect 2009 to be a little better, primarily because Chinese and Indian companies still have their eye on a little slice of the American Dream, or at least a listing on a U.S. exchange.
Congress Ratchets Up The Pressure On Santa: The New Consumer Product Safety Regulations
Imagine the uproar and legal tumult if Santa sleighed in and dumped a bunch of defective toys, toasters and terrycloth in American households this Christmas. And you thought Miracle on 34th Street put St. Nick in a courtroom pickle. That was only a competency hearing; defective products mean tort liability. Well, Santa better watch out for his own naughtiness, or at least that of his elves, during the manufacturing process, because the U.S. government recently passed the Consumer Protection Improvement Act of 2008 (CPSIA), which includes a raft of new consumer protections, especially when it comes to imported products, as if there are any other kind these days. (And what could be more imported than North Pole's finest?) This means that when Santa arrives, he may not be bringing anything but gift cards good for iTunes downloads.
Beyond Chivalry, Sir Walter Raleigh's Cape Made Him A Success In Court And Out—Risk Management Skills For The Lawyers Of Financial Services Companies
After watching the film Elizabeth: The Golden Age recently, the CC read up on the personages of the era (and film) and learned to its horror that Sir Walter Raleigh probably didn't lay his cape down to prevent Queen Elizabeth I from striding through the mud. (See here, although this more scholarly-looking site says that, well, maybe the myth has some truth—the CC always prefers truthful myth to outright debunking.) Anyway, while Raleigh's act has been cited, through the ages, as an exemplar of chivalry, the CC thinks it can be better used to demonstrate the importance of risk management. Sir Walter, explorer though he was, knew that a dirty queen cannot be a successful queen. And while keeping the queen clean was not his primary responsibility, perhaps he concluded that there were negative royal ramifications of the queen becoming known as Muddy Betty, and thus acted to save her from the epithet. In reaching this conclusion, Raleigh also had to determine whether letting the queen step in the mud was a net-net benefit to her reign. That's not really the job of an explorer.
TED Spread
TED Spread: Banking credit/liquidity-risk gauge measured by the difference in the interest rate on three-month T-Bills and that of three-month LIBOR.
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No Smoking; No Trash; Pay The Rent In Biodegradable, Soy-Based Currency: Green Lease Provisions
It will be interesting to see what happens if tenants enter into long-term commercial leases with all manner of green provisions prompted by global warming and then it turns out that we're in for an extended period (30 years or so, just long enough to cover those leases) of global cooling. There weren't any sunspots in August, and apparently that can indicate such a trend, and not just a couple degrees trend, but like Little Ice Age trend. If it's going to get cold, perhaps we need more greenhouse effect, not less. Anyway, Toolbox believes in a clean environment, regardless of the temperature, so it can only be in support of leases that foster a pleasant environment.
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