Lexis Practice Advisor Practice® Insights—January 21, 2016

Lexis Practice Advisor Practice® Insights—January 21, 2016

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.  

Legal Opinions—Financing Transactions
Banking & Finance Insights by Sherry Mitchell

Most lenders require that borrower’s counsel deliver one or more legal opinions before it is willing to fund the deal. In many firms, preparing the initial draft of the opinion letter is expedited by using examples of prior similar opinions given by the firm with the same assumptions and qualifications used in the past. However, although this seems routine, it is important for lawyers being asked to give an opinion to carefully consider and satisfy the responsibilities and due diligence required to deliver the opinion.

Learn more about legal opinions—financing transactions:

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.

Formation of a New York LLC
Business/In-House Insights by Eric Bourget

In New York, a limited liability company is formed by the delivery of articles of organization to, and filing of such articles by, the Department of State. The Articles set forth basic information regarding the LLC, including its name, location, purpose, effective date, duration and who will manage the entity. All limited liability companies formed under the New York limited liability company law must also have a written operating agreement, which sets forth, among other things, the rights and obligations of the members and how the company will be operated. The articles of organization and the operating agreement may also include any other provision, not inconsistent with law, that the members elect to include for the regulation of its internal affairs.

Learn more about formation of a New York LLC:

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®.

Appeals in Bankruptcy
Bankruptcy Insights by Cody Tray

During most Chapter 11 cases, a bankruptcy lawyer will at some point face the issue of deciding whether to appeal from an opinion by the bankruptcy court that goes against his or her client. Making this decision involves first determining whether the bankruptcy court’s decision is immediately appealable, which is not as simple an issue as it sounds. The bankruptcy lawyer will also have a host of other considerations to take into account as well, assuming that the decision is indeed immediately appealable. Understanding the complexities of the pros and cons of filing an appeal, along with the practical details of how to effectuate and pursue such an appeal in bankruptcy, is critical to successfully representing your client.

Learn more about appeals in bankruptcy:

Cody Tray, J.D., 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.

Establishing a Business Website

Business Insights by Eric Bourget

Advising a client who is considering starting a business on the Internet can be a daunting challenge. In addition to all of the usual corporate formation, taxation and employment law issues, the Internet raises special issues and challenges. These issues include items that should be addressed before the launch of any Web-based business (such as Website Development Agreements and Linking Agreements) in order to avoid unwanted long-term consequences. Additionally, the existence of a website creates ongoing obligations and risks for clients with respect to user privacy, CAN-SPAM, intellectual property infringement, rights of publicity and free speech.

Learn more about establishing a business website:

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®.

Negotiating Effective Cloud Computing Agreements
IP & Technology Insights by Lindsay Bringardner

Cloud computing involves accessing a provider’s software and infrastructure remotely and often includes storing the customer’s data with that provider. As such, when negotiating a cloud computing arrangement, it is crucial to fully understand the legal and business implications surrounding service availability, performance (i.e., service levels), and data security and control. However, traditional licensing provisions such as insurance, indemnity, intellectual property, limitations of liability and warranties also remain important.

Learn more about negotiating effective cloud computing agreements:

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.

Restrictive Covenants
Labor & Employment Insights by Carrie Wright

There are various types of restrictive covenants, including non-compete, non-solicitation and confidentiality/non-disclosure agreements. Although employers use these agreements for one purpose—to protect the company’s confidential and trade secret information—the various agreements accomplish that purpose in decidedly different ways. Understanding the practical and legal nuances of these agreements will help you select and draft the restrictive covenants that most suit the employer’s needs.

Learn more about restrictive covenants:

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.

M&A Auctions
M&A Insights by Dana Hamada

Sellers may choose to sell a company through a negotiated sale or an auction process. An auction may prove more advantageous to a seller, since the seller is more likely to achieve a higher price than it would in a negotiated deal; the auction would also offer the seller more negotiating leverage and perhaps an accelerated timetable. A sale process also presents some drawbacks, however, including increased litigation risk and potential antitrust issues.

Learn about M&A auctions:

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.

Statutory Landlord’s Liens
Real Estate Insights by Richard J. Sobelsohn

A landlord’s lien is a lien asserted by a landlord over a tenant’s property to secure payment of rent and other obligations. A statutory landlord’s lien exists in about half of the 50 states and the District of Columbia. Landlord’s lien statutes vary from state to state regarding the type of property encumbered by a lien and the enforcement procedure; landlords and tenants should familiarize themselves with the applicable lien law to understand their rights and obligations.

Learn more about statutory landlord’s liens:

Richard J. Sobelsohn, Esq., GGP, LEED Accredited Professional, Product Manager – Real Estate, brings more than seventeen years of both private and in-house practice experience to LexisNexis®.

Overview of Shareholder Rights Plans

Securities Insights by Ron Llewellyn

Poison Pills (or Shareholder Rights Plans) are one of the most useful takeover defenses that a company can use against an unsolicited bidder. Under a typical Shareholder Rights Plan, shareholders may purchase additional shares of the company’s common stock for a fraction of the market price, if a prospective bidder acquires a certain percentage of the company’s stock without board approval. Public companies and their counsel must understand all of the issues surrounding drafting and implementing a shareholder rights plan.

Learn more about overview of shareholder rights plans:

Ron Llewellyn, J.D., 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.

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