An Uncivil Code in the EU?
February 06, 2006
In the wake of the tidal wave of franchise regulation that has hit Europe, in France, Spain, Italy, Belgium, Lithuania and Estonia, there is another tidal swell rapidly approaching. Over the last 3 years, a privately financed group of European academics, working under the title, "The Study Group on a European Civil Code," have been developing a model European Civil Code. One of the Study Group's subgroups (the "Amsterdam Team") has drafted a chapter on Commercial Agency, Franchise and Distribution Contracts, the latest draft of which is dated January 2005.
Law Firm Bankruptcies
February 03, 2006
With globalization and the increasing number of mergers; with the opening of more branch offices by the national firms; and with record number of lawyers leaving law firms, competition in the legal profession has become more intense and cutthroat. As a result, are there more law firm bankruptcies on the horizon? If so, what are the ramifications? What procedures must be followed? The goal of this article is to provide an overview of the basic issues likely to surface in a law firm bankruptcy case.
When Technology Doesn't Work
February 03, 2006
The traditional wisdom, "failing to plan is planning to fail," has been transformed into a rule of thumb for the tech sector: "plan for failure." Firms that do not explicitly anticipate systems failure run the risk of being unprepared for a catastrophe, just as Floridians must plan for hurricanes in August ' and New Orleans must now be prepared for potential dike breaches.
Associate Break-Even: A Matter of Perspective
February 03, 2006
In my role as a consultant, I work with clients who wish to make critical business decisions but sometimes suspect the reliability of their internally generated numbers. Last month, Ed Wesemann wrote about just such a situation, when he referred to the common belief that associates do not make money in their first 3 years. Intuitively, this does not make sense to many law firm managers, yet their reports often support this contention.
Associate Overcompensation?
February 03, 2006
As described in the following article abridgements from A&FP sibling publications, associate salaries and rates are headed up once again, pressures from cost-conscious clients notwithstanding. I have a possibly discomfiting view to offer on this, but first let's take a look at the bandwagon effect now in progress in some major U.S. legal markets.
Flexibility in Flexible Spending
February 03, 2006
The Internal Revenue Service has provided guidance in Notice 2005-86 on the interaction of the 2.5-month grace period for a health flexible spending arrangement (health FSA) (established earlier by Notice 2005-42) and an individual's eligibility to contribute to Health Savings Accounts (HSAs).
Building a State-of-the-Art Anti-Bribery Program
February 03, 2006
Anti-bribery laws have serious consequences for anyone doing business internationally. Violations come to light during routine M&A due diligence, when competitors complain or employees blow the whistle, or when companies voluntarily disclose as a part of their Sarbanes-Oxley reporting obligations. When they do come to light, strong internal controls may shield executives from some liability and restore confidence amongst shareholders and regulators.
IP Transfer and Pricing Considerations for Financial Service Firms
February 01, 2006
Financial service companies make their money primarily through two core intellectual assets. The first is their expert knowledge of ways to create, expose, tranche and protect asset value. The second is their ability to project their expertise as embodied in their brand. Aside from the specialized intellectual asset merchant banks, financial service companies do not know how to value their knowledge nor their brand. Furthermore, historically they have not paid much attention to which of their global affiliates created the intellectual asset nor which of their affiliates deployed the asset — an activity that creates the accounting and financing phenomenon of "transfer pricing." The importance, more specifically the urgency, in rectifying this informational vacuum arises from recent changes in international tax law pertaining to the pricing of intangible assets that are transferred among Multinational Entity ("MNE") affiliates. This article, targeting the financial service industry, briefly summarizes the fears of the industry concerning transfer pricing and intellectual property ("IP"); cites an example of a recent innovation that has led to a revolution in the way bonds are priced identifying possible IP transfer pricing red flags; and concludes with suggestions for process improvements.
Advising a Private Equity Fund
January 26, 2006
As anyone who has advised a private equity fund in connection with the potential insolvency of one of its portfolio companies knows, reconciling the duty of the fund's designated directors sitting on the portfolio company's board with the fund's duties to its investors can feel like a high wire act at times. As fiduciaries for its investors, the fund's managers must act in a manner consistent with maximizing the return on invested funds. Yet, these same managers are often directors of the fund's portfolio companies. While a portfolio company is thriving, the duties to the fund's investors and the fund manager's duties as a director of the portfolio company are typically in harmony. However, when the portfolio company's business turns sour, and it approaches insolvency or is insolvent, the shifting of the directors' fiduciary duties to the company's creditors can cause irreconcilable conflicts of interest along with consternation on how to fund ongoing operations. This article discusses possible structural mechanisms to address and potentially avoid these irreconcilable conflicts while still maintaining the ability to manage the fund's investment and fund the portfolio company's ongoing business.
