Lexis Practice Advisor® Practice Insights—June 18, 2015

Lexis Practice Advisor® Practice Insights—June 18, 2015


LexisNexis partners with leading practitioners from across the country to develop Lexis Practice Advisor® practical guidance for transactional matters. Periodically InfoPro highlights the practical insights developed by these attorneys on specific topics in their area of expertise. These insights can be shared with your attorneys, used in your newsletters and on your intranet.  

Cross-Border Lending
Banking & Finance Insights by Sherry Mitchell

Cross-border lending has increased significantly over the last couple of decades. As the global lending markets have developed, demand for capital in emerging markets is continuing to rise. Whether the transaction involves developed economies or emerging markets, banking and finance lawyers who practice in the cross-border lending space need to understand the challenges and risks for lenders making loan facilities available to a borrower in a particular jurisdiction. These include the jurisdiction’s requirements for the taking of guarantees and security from foreign borrowers and guarantors.

Learn more about cross-border lending:

Sherry Mitchell, Esq., head of Lexis Practice Advisor® Banking & Finance, brings eleven years of experience to LexisNexis®, joining the team from Clifford Chance U.S. LLP.

Setoff Rights

Bankruptcy Insights by Cody Tray

There are several matters to consider involving contracts establishing setoff rights in the context of a Chapter 11 case. The primary issue is that the contract providing for the setoff rights must be drafted so as to be enforceable in bankruptcy. This will avoid a creditor anticipating payment in full due to setoff rights and then ultimately receiving only an unsecured claim. Specifically, a setoff right may not be enforceable in bankruptcy if the court declines to recognize mutuality when the contract involves multiple related entities such as with a master netting agreement. When representing creditors in these types of situations, it is key for you to have a full understanding of these matters in order to protect your creditor-clients’ interests and ensure they receive payment in full.

Learn more about setoff rights:

Cody Tray, Esq., head of Lexis Practice Advisor® Financial Restructuring & Bankruptcy, brings nine years of bankruptcy experience to LexisNexis®, including experience at Davis Polk & Wardwell LLP and a clerkship with the Honorable Robert E. Gerber, SDNY Bankruptcy Judge.

Dissolution of Delaware Limited Liability Companies

Business Insights by Eric Bourget

The LLC agreement generally governs the circumstances under which an LLC will dissolve. An LLC dissolves under any of the following circumstances: 1. expiration of a duration set forth in the LLC agreement; 2. occurrence of an event specified in the LLC agreement as causing dissolution; 3. by vote or written agreement of a number of members holding greater than a 2/3 interest in the LLC, unless the LLC agreement provides otherwise; 4. after the departure of the LLC’s last member, unless that member agrees in writing to continue the LLC and nominates a replacement within 90 days or otherwise in accordance with the agreement; or 5. by judicial decree of the Court of Chancery.

Learn more about the dissolution of Delaware limited companies:

Eric Bourget, Esq., Lexis Practice Advisor® Team Lead and Group Director of Specialized and Corporate offerings, brings ten years of both private and in-house practice experience to LexisNexis®.

Exploring the Nuances of Drafting vs. Reviewing Commercial Leases in California

Business Insights by Eric Bourget

Attorneys will generally be retained in connection with commercial leasing transactions in one of two basic contexts: lease drafting and lease review. The primary distinction between these two types of roles is the attorney’s ability to influence the actual terms and conditions of the lease. When participating in the original drafting, the attorney (typically landlord’s counsel) can draft or modify the initial lease document before it is presented to the other party, thereby influencing to a great extent the form and content the final lease will ultimately assume. Because of the importance of this initial draft in setting the expectations of the parties, counsel performing this function should take great care to ensure that this document fully and accurately expresses the intentions of the parties, as reflected in the letter of intent, and deals with issues not addressed in the letter of intent equitably so as to create a working relationship with the other party and its attorney that is both cordial and devoid of adversarial positioning that might interfere with the ability of the parties to successfully conclude the transaction with a mutually acceptable set of lease documents. Conversely, when conducting a lease review, an attorney is typically presented with existing lease documents and is limited to providing his/her client with advice, counsel and a document critique in the context of a set of documents that is less malleable than that attorney would otherwise wish. At this point, the real challenge for the reviewing attorney is both to formulate positions concerning requested document revisions that are logical, fair and defensible and to support those positions with explanations and illustrations of the likely effects of the requested changes that are clear, concise and compelling.

Learn more about exploring the nuances of drafting vs. reviewing commercial leases in California:

Eric Bourget, Esq., Lexis Practice Advisor® Team Lead and Group Director of Specialized and Corporate offerings, brings ten years of both private and in-house practice experience to LexisNexis®.

Dissolution of Delaware Limited Liability Companies

In-House Insights by Eric Bourget

The LLC agreement generally governs the circumstances under which an LLC will dissolve. An LLC dissolves under any of the following circumstances: 1. expiration of a duration set forth in the LLC agreement; 2. occurrence of an event specified in the LLC agreement as causing dissolution; 3. by vote or written agreement of a number of members holding greater than a 2/3 interest in the LLC, unless the LLC agreement provides otherwise; 4. after the departure of the LLC’s last member, unless that member agrees in writing to continue the LLC and nominates a replacement within 90 days or otherwise in accordance with the agreement; or 5. by judicial decree of the Court of Chancery.

Learn more about the dissolution of Delaware limited companies:

Eric Bourget, Esq., Lexis Practice Advisor® Team Lead and Group Director of Specialized and Corporate offerings, brings ten years of both private and in-house practice experience to LexisNexis®.

Identifying Relevant and Precedential TTAB Decisions
IP & Technology Insights by Lindsay Bringardner

It is important to cite precedential Trademark Trial and Appeal Board (TTAB) decisions or Federal Circuit cases when submitting arguments to the U.S. Patent and Trademark Office or the TTAB. However, since most of the decisions and cases issued by the TTAB and Federal Circuit are actually considered “not precedential,” locating relevant precedential decisions and cases can feel like finding a needle in a haystack. The Lexis Practice Advisor TTAB Decision Tracker helps you easily pinpoint appropriate precedential decisions and cases by organizing precedential decisions by type of issue (e.g., likelihood of confusion, descriptiveness, etc.) and disposition and distills important facts via an easy-to-read chart detailing the parties, trademarks at issue, relevant goods and services, and a case description.

Learn more about identifying relevant and precedential TTAB decisions:

Lindsay Bringardner, Esq., head of Lexis Practice Advisor® Intellectual Property & Technology, brings twelve years of legal experience to LexisNexis®, including experience at Latham & Watkins LLP and Pryor Cashman LLP.

Preparing Answers to EEO Complaints
Labor & Employment Insights by Carrie Wright

Defendants may waive certain defenses that they fail to raise in their answers. Thus, when answering a litigation complaint on behalf of an employer facing a discrimination claim, it is important to consider all potential defenses and assert any that may apply. Each antidiscrimination statute has unique defenses. Additionally, certain other defenses often arise in employment litigation that you should also assess for inclusion in the answer.

Learn more about preparing answers to EEO Complaints:

Carrie Wright, Esq., head of Lexis Practice Advisor® Labor & Employment, brings nearly fifteen years of legal experience to LexisNexis®, including experience at Epstein Becker & Green, P.C., Paul, Weiss, Rifkind, Wharton & Garrison LLP and Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.

Public Merger Agreement Basics

M&A Insights by Dana Hamada

If your client is involved in a public company merger, drafting and negotiating the merger agreement will present different drafting issues than those that arise in a private company merger. Because public companies are subject to ongoing disclosure obligations under federal securities laws, the representations and warranties and disclosure schedules will usually be less detailed than in a private merger. Moreover, public mergers generally do not provide for post-closing survival of representations, warranties, indemnification or post-closing purchase price adjustments.

Learn more about public merger agreement basics:

Dana Hamada, Esq., head of Lexis Practice Advisor® Mergers & Acquisitions, brings a wealth of legal experience to LexisNexis®, joining the team from Jenner & Block LLP and Gibson, Dunn & Crutcher LLP.

Real Estate Brokerage Laws in the United States

Real Estate Insights by Richard J. Sobelsohn

The real estate brokerage profession is primarily regulated by the laws of the state in which the subject property is located. State laws govern licensing requirements for real estate brokers and salespersons, brokerage agreements and mandatory broker disclosures. It is important for real estate brokerage professionals, as well as individuals engaging their services, to understand their respective rights and duties under the applicable state laws.

Learn more about real estate brokerage laws in the United States:

Richard J. Sobelsohn, J.D., GGP, LEED Accredited Professional, Team Lead and Group Director of Lexis Practice Advisor® Financial Practice Area Modules, brings almost sixteen years of both private and in-house practice experience to LexisNexis®.

Registering Investment Companies with the SEC

Securities Insights by Ron Llewellyn

Investment companies or funds organized under U.S. law are required to register under both the Investment Company Act of 1940 and the Securities Act of 1933. Counsel advising an investment company as to registration should be familiar with the steps involved in registering an investment company with the SEC, including preparing, filing, delivering and maintaining disclosure required for the purpose of offering its securities.

Learn more about registering investment companies with the SEC:

Ron Llewellyn, Esq., head of Lexis Practice Advisor® Securities & Capital Markets, brings a wealth of expertise to LexisNexis®, including experience at Skadden, Arps, Slate, Meagher & Flom LLP, MasterCard Incorporated and Saks Incorporated.