Practice Insights Newsletter from the Lexis Practice Advisor® service

FINANCE
Negotiating Commitment Papers Resource Kit

This resource kit provides an overview of negotiating financing commitment papers. The commitment letter and its attachments are the starting point of the definitive documentation and the drive to closing, but they are also the end result of significant negotiation over the business and legal terms of transaction. To start, lawyers are generally tasked with translating the business terms of the transaction into a legal term sheet attached to the commitment letter. However, in addition to drafting the commitment papers, lawyers take the lead in negotiating these terms—that is, every major provision other than the pricing itself. This means counsel must be up to date on market conditions and the structure and nature of the transaction itself. Read more.

CORPORATE AND M&A
Bank M&A Practice Guide by Aaron Kaslow, Kilpatrick Townsend & Stockton LLP

Describe the M&A market for banks/financial institutions.
Insured depository institutions (referred to here generically as “banks” and which include national banks, federal thrifts, and state-chartered banks and thrifts) are most often acquired by other banks and bank holding companies. The Bank Holding Company Act of 1956 (12 USCS § 1843) separates the business of banking from other areas of commerce by imposing restrictions on the non-banking business activities of bank holding companies. The activities restrictions in the Bank Holding Company Act prevent the acquisition of banks by manufacturers, retailers, and other non-banking businesses. Read more.

CAPITAL MARKETS & CORPORATE GOVERNANCE
Market Trends 2017/18: International Capital Markets by David Ludwick, Sarah Murphy, and Virginia Flower, Freshfields Bruckhaus Deringer

This market trends article discusses a selection of trends experienced by companies as they raised capital in cross-border securities offerings in the international equity capital markets (ECM) and debt capital markets (DCM). Read more.

LABOR & EMPLOYMENT
Employment Litigation Discovery Resource Kit

This resource kit provides links to forms with drafting notes that give you a starting point in preparing and responding to fact discovery requests in various types of employment litigation including discrimination cases, wage and hour matters, and trade secret misappropriation/breach of restrictive covenant actions. This resource kit also discusses the initial steps that you should take to manage fact discovery and provides links to practice notes containing practical guidance and strategies. Read more.

CORPORATE COUNSEL
Diversity Initiatives at Law Firms and In-House Legal Departments by Alberto Rodriguez, New York City Commission on Human Rights

This practice note provides guidance on implementing strategies to increase diversity at law firms and corporate legal departments. It explains the pitfalls that may exist in implementing certain diversity efforts and provides guidelines on creating a more diverse and inclusive work environment. This practice note utilizes the American Bar Association’s definition of diversity which includes individuals who are racial and ethnic minorities, women, LGBT, and those with disabilities. Read more.

DATA SECURITY & PRIVACY
Confidential Medical Information in the Employee Leaves and Disability Context by Betsy Johnson, Ogletree Deakins, P.C.

This practice note provides guidance on meeting medical recordkeeping and confidentiality requirements under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA). Read more.

TAX
Toll Tax: Proposed I.R.C. Section 965 Regulations Explained

This practice note provides a review of the proposed regulations under I.R.C. Section 965, issued August 1, 2018, and highlights some key issues for practitioners and taxpayers. See 83 FR 39514.

The proposed regulations provide guidance relating to the toll tax due upon the mandatory repatriation of certain deferred foreign earnings. Generally, the proposed regulations combine the provisions announced in three prior IRS Notices (the Section 965 Notices), one Revenue Procedure, various frequently asked questions released by the IRS concerning the payment, and reporting of a taxpayer’s I.R.C. Section 965 inclusion and related tax liability and IRS Publication 5292. In addition, the proposed regulations also set forth additional guidance on a variety of topics. Read more.

REAL ESTATE
Force Majeure Clauses in Construction Contracts by Jed Ruccio, McCarter & English, LLP

A force majeure clause addresses events that are beyond the control of the parties, such as a natural disaster, and defines the parties’ obligations during such events. A well-drafted force majeure clause in a construction contract can minimize or avoid the delay and disputes caused by a significant unexpected occurrence. Read more.

EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION
Compensation Committee Resource Kit

This resource kit provides an overview of the roles and responsibilities of the compensation committee of the board of directors and the applicable corporate governance standards of a company listed on the New York Stock Exchange (NYSE^®) or The Nasdaq Stock Market^® (Nasdaq) as well as guidance as to where relevant practice notes, checklists, and forms can be found in Lexis Practice Advisor. Read more.

INTELLECTUAL PROPERTY & TECHNOLOGY
Divided Infringement Considerations for Process Claims

This practice note identifies the elements of divided infringement that a patent prosecutor should keep in mind when drafting patent claims directed to a process in which the steps may be performed by more than one actor. It also considers how to optimize the written description to support a divided infringement analysis and discusses claim-drafting strategies that may obviate the need to rely entirely on a multi-actor process claim. Read more.

PRIVATE EQUITY & INVESTMENT MANAGEMENT
Middle Market Private Equity Loans: Increasing Flexibility by Ellen M. Snare, King & Spalding LLP

The middle market private equity leveraged loan market (middle market) has undergone significant changes during recent years as a result of larger, more sophisticated sponsors engaging in transactions in that space and importing the flexibility that they are accustomed to in their more traditional market, the large corporate loan market (large cap). Generally speaking, the middle market consists of credit party groups with consolidated EBITDA in the range of $20 million to $50 million, with consolidated EBITDA in excess of $50 million being the entry point for the large cap market. Given the reduction in transactions with truly marketable creditworthiness in the middle market and the uptick in recent years in the formation of alternative sources of capital, there is a glut of lenders with capital to allocate chasing a smaller pool of deals. This gives private equity sponsors greater leverage now than they have exercised at any other period other than during the leveraged lending boom of the mid-2000s. Sponsors have used this leverage to introduce significant flexibility in debt, lien, investment, and restricted and junior payment baskets. Read more.

Related content:

  •  Practice Note: Private Equity Investment Structures by Carolyn J. Vardi, White & Case LLP
  •  Practice Note: Preferred Equity in Buyouts by Robert F. Kennedy, Milbank, Tweed, Hadley & McCloy LLP
  •  Practice Note: Real Estate Private Equity Investments: Types of Structures by Debbie Klis, Polsinelli PC
  •  Practice Note: Growth Equity Investments by Brien Wassner, Shearman & Sterling LLP
  •  Practice Note: Co-investments Guide: Issues to Spot and Raise When Making a Private Equity Direct Co-investment by Christopher Henry, Lowenstein Sandler LLP
  •  Practice Note: Stock Option Awards Treatment in Sale Event Transactions by James Mattus, Goodwin Procter LLP, with assistance from Natascha George, Goodwin Procter LLP

COMMERCIAL TRANSACTIONS
Apostilles, Legalizations, and Notarizations

This practice note discusses the self-authentication process of evidence through the use of an apostille, which authenticates foreign public documents, or a notary public certificate of acknowledgement. Both types of self-authentication, on their face, appear to be simple formalities. However, sloppiness or technical deficiencies can result in a challenge to the document’s status as self-authenticating. Read more.

ANTITRUST
Healthcare Providers and Insurers: FTC Approach to Provider Mergers and Acquisitions by Alexis J. Gilman, Joseph M. Miller, and Angel Prado, Crowell & Moring LLP

This practice note explains how antitrust enforcers, primarily the Federal Trade Commission (FTC), analyze healthcare-provider mergers, including hospital, outpatient, and physician-group mergers. After federal and state antitrust enforcers lost seven straight hospital-merger challenges in the 1990s, which put their hospital-enforcement approach in doubt, the FTC conducted a series of hospital merger retrospective studies that analyzed the competitive effects of several mergers. As a result of one of those studies, the FTC successfully challenged in its administrative court the consummated merger of Evanston Northwestern Healthcare and Highland Park Hospital. Since then, the FTC has won every fully litigated challenge to block or unwind a hospital and other healthcare-provider merger, including several recent cases at the circuit court level. Additionally, in several non-litigated enforcement actions, the FTC has required remedies to approve the merger. Read more.

BANKRUPTCY
Bankruptcy 101 for Commercial Litigators

Title 11 of the United States Code, commonly known as the federal Bankruptcy Code, provides an orderly process to efficiently and equitably administer and settle claims against an insolvent individual, corporation, or municipality. The Bankruptcy Code is a statutory scheme that sets forth the relief available to debtors and creditors. The Federal Rules of Bankruptcy Procedure (Bankruptcy Rules) and Federal Rules of Evidence govern bankruptcy proceedings in bankruptcy courts, district courts, and bankruptcy appellate panels. Many, but not all, of the Bankruptcy Rules are similar to or incorporate the Federal Rules of Civil Procedure. Additionally, every jurisdiction has local rules of bankruptcy procedure that supplement or modify the Bankruptcy Rules. Practitioners must consult both the Bankruptcy Rules and the applicable local bankruptcy rules regularly throughout a bankruptcy proceeding. Read more.

GENERAL PRACTICE
Conflicts of Interest for Directors of Venture-Backed Companies by Kaiser Wahab, Riveles Wahab LLP

For venture and investor-backed companies, board members often serve multiple interests: the company itself and the investor or investment group (e.g., hedge fund/private equity fund) that put the director there. This type of director is referred to as a designated, representative, or constituency director. The key feature of their role is that they have at least two constituencies to whom they answer, creating a complex relationship. Read more.