Lexis Practice Advisor® Practice Insights—February 18, 2016

Lexis Practice Advisor® Practice Insights—February 18, 2016

LexisNexis teams up 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.

Perfection and Priority

Banking & Finance Insights by Robyn Schneider

One of the primary goals of any secured creditor in a lending transaction is to make sure that its collateral is properly perfected so that it is binding on third parties. The Uniform Commercial Code (and the various state codes implementing the UCC) provides very specific rules regarding perfection and priority. Thus, creditors should take care to make sure that the proper method of perfection is followed with respect to its collateral. Otherwise, a creditor could lose its priority position in that collateral to other third parties.

Learn more about perfection and priority:

Robyn Schneider, J.D., head of Lexis Practice Advisor® Banking & Finance, brings over twelve years of experience to LexisNexis®, including experience at King & Spalding, Pillsbury Winthrop Shaw Pittman LLP and an in-house position at MetLife® Insurance Co.

Drafting a Prenuptial Agreement in New York

Business/In-House Insights by Eric Bourget

A prenuptial agreement (colloquially known as a “prenup” and more formally known as an antenuptial agreement) is a contract made in anticipation of marriage. This is essential for counsel and clients to remember. The challenge, of course, is that prenuptial agreements are contracts between two people who care about each other and are being asked to imagine what might happen if they grew to despise each other. As a result of this, prenuptial agreements can be some of the hardest contracts to negotiate and draft. Your task as the drafting attorney is to consider every possibility, both in the marriage and in the theoretical future divorce.

Learn more about drafting a prenuptial agreement in New York:

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®.

Conversion 

Bankruptcy Insights by Cody Tray

Although a bankruptcy case must originally be filed under one specific chapter of the Bankruptcy Code, it is possible for the various parties-in-interest to move the case from that initial chapter to another one through the process of conversion. Conversion may be beneficial for various reasons at various points in the case, depending on the particular facts of the case in question. Recently, courts have been stricter about ensuring that a request to convert was filed in good faith and does not constitute an abuse of the bankruptcy process. Because conversion has extensive effects on the future of the bankruptcy case, having a full understanding of the nuances and implications of conversion is critically important.

Learn more about conversion:

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.

Understanding Blue Sky Laws

Business Insights by Eric Bourget

In addition to complying with federal securities laws, each transaction in securities must comply with state securities laws, which are often referred to as “Blue Sky” laws. Each state has its own set of Blue Sky laws and regulatory or administrative agency that, among other things, regulates the offer and sale of securities and the licensing of securities intermediaries such as broker-dealers. As with federal securities regulation, counsel will be expected to advise clients on potential Blue Sky law issues, including the process for registration and any available exemptions from registration. This advice may often require the preparation of a Blue Sky memorandum which will provide details regarding the Blue Sky law requirements for each state in which the securities are being sold.

Learn more about understanding Blue Sky Laws:

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®.

Forming a California Benefit Corporation

Business Insights by Eric Bourget

The California Benefit Corporation (“CBC”) is a new type of business entity which was enacted in October 2011, and became effective January 1, 2012, pursuant to Cal. Corp. Code § 14600 et seq. (the “CBC Act”). A CBC is a hybrid corporate entity type that allows a corporation to simultaneously advance both shareholder interests and non-financial or public benefit interests. The greatest advantage offered by the CBC entity is that CBCs engage in the simultaneous pursuit of both shareholder interests and non-financial or public benefit interests. Unless expressly provided otherwise, the provisions of California General Corporation Law guide the formation and operation of a CBC. The CBC Act outlines several provisions which are only applicable to CBCs, and which differentiate a CBC from a traditional California for-profit or a traditional California non-profit entity.

Learn more about forming a California Benefit Corporation:

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®.

Developing Effective Claim Construction Arguments

IP & Technology Insights by Angela Bozzuti

Claim construction is an important and often necessary aspect of patent litigation. How the patent claims are construed impacts not only the infringement analysis, but also the viability of invalidity defenses such as anticipation, obviousness or indefiniteness. As such, when developing claim construction arguments for either the patent owner or accused infringer during patent litigation, it is crucial to fully understand the legal requirements governing claim construction and how to assess the intrinsic and extrinsic evidence in the case.

Learn more about developing effective claim construction arguments:

Angela Bozzuti, Esq., head of Lexis Practice Advisor® Intellectual Property & Technology, brings twelve years of legal experience to LexisNexis®, including experience at Heller Ehrman LLP and Davis & Gilbert LLP.

EEO Protections

Labor & Employment Insights by Carrie Wright

A variety of federal laws prohibit discrimination based on an individual’s membership in a protected class. For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination in private and public employment on the basis of race, color, religion, sex (including pregnancy) and national origin. The Age Discrimination in Employment Act of 1967 prohibitions discrimination based against employee age forty and over. The Americans with Disabilities Act of 1990 prohibits employers from discriminating against individuals with disabilities. Section 1981 of the Civil Rights Act of 1866 prohibits racial discrimination in the making and enforcement of contracts, including employment contracts. Additionally, the Equal Pay Act prohibits wage discrimination based on gender. The Immigration Reform and Control Act of 1986 and Section 525 of the Bankruptcy Code also contain anti-discrimination provisions.

Learn more about EEO protections:

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.

Environmental Due Diligence and the AAI Standard

M&A Insights by Dana Hamada

If a buyer can qualify as a “bona fide prospective purchaser” that has made an “all appropriate inquiry” to determine whether real property was contaminated prior to the acquisition, the buyer may be able to avoid CERCLA liability for any preexisting contamination discovered post-closing. Accordingly, it is critical to work closely with environmental counsel to ensure that the due diligence exercise satisfies the “all appropriate inquiry” standard, and to understand how best to tailor the scope of due diligence to uncover environmental risks.

Learn about environmental due diligence and the AAI standard:

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.

Landlord Protections Relating to a Tenant’s Bankruptcy

Real Estate Insights by Richard J. Sobelsohn

There are certain steps a landlord can take to protect itself from the risks associated with a tenant’s bankruptcy. A tenant who enters a Chapter 11 bankruptcy case and becomes a debtor in possession can either assume or reject its unexpired lease. To maximize its claim in the event of either an assumption or rejection of lease by a debtor tenant, the landlord should negotiate lease terms that maximize the tenant’s obligation to cure and compensate the landlord for damages in a bankruptcy scenario.

Learn more about landlord protections relating to a tenant’s bankruptcy:

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®.

Understanding the Regulatory Scheme for Investment Advisers

Securities Insights by Jamshaid N. Khan

While the Investment Advisers Act of 1940 applies to registered investment advisers, portions of it apply to all investment advisers, even those not registered with the SEC. Investment Advisers are subject to additional state regulation, which may be preempted by federal regulation. Attorneys counseling investment advisers should be knowledgeable of the broad fiduciary duties applicable to all investment advisers to pursue the best interests of their clients.

Learn more about understanding the regulatory scheme for investment advisers:

Jamshaid N. Khan, head of Lexis Practice Advisor® Securities and Capital Markets, brings a wealth of legal experience to LexisNexis®, joining the team from Davies Ward Phillips & Vineberg LLP and Locke Lord LLP.