October 2009
Julia K. Cowles (Davis Polk & Wardwell) explains the primacy of document review to the due diligence process
PLI: You've helped develop a practical approach for planning, and
undertaking, securities offering document review that revolves around
ten key points. And point one is that a lawyer, particularly one new to
the process, must understand the purpose of document review. Is there
one, single purpose?
JULIA K. COWLES: Lawyers undertake document review in
connection with securities offerings for a number of reasons. The
principal purposes are to ensure the accuracy of a disclosure document
and to assist the underwriters in establishing their "due diligence"
defense to liability under the federal securities laws.
Labe M. Richman (Adjunct Professor, New York Law School) urges criminal defense lawyers to consider all their options when representing immigrants
PLI: Obviously, pending or past criminal processes can complicate
greatly an individual's immigration status. But that doesn't mean
lawyers should simply assume "there is nothing to be done." How can
criminal defense lawyers better represent immigrants?
LABE M. RICHMAN: Over the past few years I have spent a great
deal of time representing aliens who wish to undo convictions which are
causing immigration problems. As a result of this experience, I have
some observations which I hope will help criminal defense lawyers
protect the rights of their immigrant clients.
Repurchase Agreement (Repo)
Sale and repurchase contract between two parties under which one party sells a security to a buyer and agrees to buy it back for a higher price later.
Continue reading "Repurchase Agreement (Repo) "
I Used To Have To Fly To New York To Get My Brolex Watch...Now I Just Go Online: Cost-Effective Anti-Counterfeit Enforcement In A Digital (And Challenging) Economy
You can still troll the streets of Manhattan and find knockoff bags,
watches and just about everything else. It used to be the joke that the
bags were by Blendi and the watches by Brolex — not anymore. The
knock-offs use the actual brand names and even the design, that being
easier in an era where anyone with a decent computer can rip off a
trademark. Worse yet, although tourists still make the New York
pilgrimage to buy bags, now you can go online and get the same thing
and save on the airfare. It's bad enough trying to put the street
urchins out of biz, it's even tougher for your producer clients and for
you as well when the same folks are hawking their wares on eBay or
craigslist. And in a tough economy, well how much do your clients want
to spend, really? Then again, if you quit, the free market will become
the chaos market. So how do you "prosecute" counterfeiters in a digital
age and in a tough economy to boot?
"Made In China" Applies To M&A, As Well: The New Home For Reverse Mergers
It's cliché to say everything is "made in China," even if it's true.
Talk about a steep learning curve. Economically, China is moving so
fast, from manufacturing into services, well, there might not be
anything left for the rest of the world to do soon. OK, maybe that's an
exaggeration — there'll be tons of work for lawyers representing
American shell companies that want to merge with Chinese companies.
That's right — the reverse merger has made it to Beijing. As China has
begun to encourage foreign direct investment, this tool of the deal
landscape has taken off, with numerous Chinese businesses having
completed reverse mergers into US shell companies since 2003. So if
you're looking for a little deal action, think about heading Far East.
Continue reading ""Made In China" Applies To M&A, As Well: The New Home For Reverse Mergers"
Truth Or Dare? False Claims Act Amendments Hit Home
Two issues back, the CC discussed whistleblowing aspects of ARRA. This
week, we'll revisit the subject with a review of the recent enactment
of the Fraud Enforcement and Recovery Act of 2009 (FERA). It included
amendments to the False Claims Act (FCA), an 1863 law that has rarely
been touched in its nearly 150-year history. The FCA is, in essence, a
whistleblower statute that allows citizens who have evidence of fraud
committed against the government in contracts and programs to sue to
recover taxpayer dollars. The
FCA Legal Center
calls the law "the single most important tool U.S. taxpayers have to
recover the billions of dollars stolen through fraud by U.S. government
contractors every year."
As concerns your clients, the FCA is most relevant insofar as
it covers billing for goods, services, tests and other work that is
never actually performed. It can also apply in cases where a client is
overpaid for government contracts and the overpayment is not reported.
The FCA imposes treble liability, so it is quite onerous, and it has
been used to trip up a business by "competitors, disappointed bidders,
disgruntled employees, and antagonistic agencies could use...to punish
and destroy those who opposed them." Still, the new FERA expands
potential liability even further. So how do you spread the truth that
your clients don't dare run afoul of FERA and the "new and improved"
FCA?
Continue reading "Truth Or Dare? False Claims Act Amendments Hit Home "
Peter A. Sarasek (Quarles & Brady LLP) explains how the transactional lawyer can aid the non-real estate litigator once a loan ends up in court
PLI: How can a deal lawyer provide value to the litigators who are engaged to commence a mortgage foreclosure proceeding?
PETER A. SARASEK: Let's examine the typical stages of the mortgage loan
foreclosure process. The mortgage loan foreclosure process varies from
state to state, and the procedural laws of each applicable state need
to be consulted and followed in foreclosing any mortgage loan. Some
states, such as Illinois, see 735 ILCS 5/15 §§1501-1512, for example,
have an explicit mortgage foreclosure statute which sets forth the
requirements for a mortgage foreclosure complaint, and addresses the
different issues involved in foreclosing a mortgage loan; other states
may not have a single, comprehensive piece of legislation, but may
require the lender's counsel to be familiar with many statutes and the
substantive case-law of that jurisdiction for guidance.
Peter A. Sarasek (Quarles & Brady LLP) urges transactional attorneys to get more involved in client mortgage foreclosures
PLI: You think deal lawyers need to "get their hands dirty" when it
comes to mortgage loan foreclosures. Can you explain what you mean?
PETER A. SARASEK: When a client asks the real estate
transactional attorney to help with the foreclosure of a mortgage loan,
the tendency of many deal lawyers is to bring in the litigators and let
them take over, with the deal lawyer barely involved in the effort
thereafter. This can be a major mistake on the part of the
transactional lawyer for a number of reasons. First, the deal lawyer
knows the client best, and has gained the trust of the client and knows
its concerns. The client's business people are often afraid of
litigation, especially mortgage foreclosures, often because they do not
understand how the foreclosure process works and what is involved in
it. Loan officers, like most people, have also heard or experienced in
the past some of the horrors of litigation, including the delays,
costs, and sometimes adverse rulings from a third party judge in black
robes whom they've never known before. At the same time, the lender's
staff is under constant pressure to get this troubled loan off its
books as quickly as possible. Clients often need a known and trusted
advisor to hold their hand through the litigation process, and the deal
lawyer who made the loan is probably the best person to serve in that
role.
FedBizOpps.Gov
According to the U.S. General Services Administration, "the single
government-wide point-of-entry for federal government procurement
opportunities over $25,000."
Continue reading "FedBizOpps.Gov "
Some Things Just Ain't Meant To Be Cheap, So A Two-For-One Is Probably Out Of The Question: Managing Patent Litigation Costs
Nobody ever walked into a Rolls Royce showroom expecting to drive out
in a new model without taking a hit in the wallet. (Of course, if
you're in the Rolls showroom, you can probably afford the hit.) Ditto
that yacht, house, or even a really nice bottle of
Chateau Montelena Cabernet. (And if you want to know why Chateau Montelena is so expensive, see Bottle Shock.)
Good legal representation also costs, and with very good reason that
you, in particular, don't need a movie to explain. And patent
litigation, because it is extra specialized, complicated and takes a
really long time, can be über expensive. Still, both lawyers and
clients struggle to come up with ways to keep those costs from making
that Rolls Royce seem like a Chevy Nova.
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