2020 Advanced Business Law

Bankruptcy filings will inevitably be on the rise given the uncertain economic environment. If your client’s company is a creditor involved in a bankruptcy, there is no substitute for being prepared for and seeking outside bankruptcy counsel to advise on proper strategy. You may want to advise your client to proactively hiring counsel to strategically structure vendor contracts; analyze sale opportunities, particularly of distressed assets; restructure your own client’s corporate debt; if involved in a large Chapter 11, hire counsel to advise upon the benefits of having representation upon the creditors’ committee; and, advise your client’s company, if applicable, on the bankruptcy impacts of oil and gas and intellectual property issues.

The number of private companies in the U.S. continues to grow, and this growth curve has resulted in an increase in conflicts and litigation among business partners. Much of this conflict could be avoided if potential partners would engage in planning and then enter into agreements between them that address issues related to both corporate governance that more clearly define their roles in the business and also provide for the exit of a partner from the company. In partners decline to adopt bylaws or LLC agreements spelling out their roles in management, and they neglect to enter into buy sell agreements that provide for partner exits, we can expect that Business Divorce litigation will remain a hot topic for years. In the private company context, this is likely to involve additional cases presenting breach of fiduciary duty claims under the derivative statute that applies to closely held Texas companies.

The structure of the project and the content of the governing documents used by POAs in commercial developments varies with the needs, purposes, and desires of the developer as well as the nature of the purpose and the market it serves. Whether the development is a multi-hundred-acre warehouse center or five-unit condominium office park, separate ownership coupled with shared common areas, easements, and other interests make it necessary for an efficiently operating POA to be in place to keep it thriving. Administrative success and minimizing liability require comprehension of the concepts and interrelationships intrinsic to a commercial POA. The desired balance that optimizes the derived benefit of the community concept to owners of commercial sites calls for insight and prescience provided by its professional support team.

This is the PowerPoint slide deck for the presentation.

As the COVID-19 pandemic spreads across the globe, companies are experiencing unprecedented business interruption losses as they cancel events, curtail travel, and shutter retail establishments in compliance with government mandates and shelter-in-place orders. While some jurisdictions have only social distancing warnings in place, many organizations have voluntarily cancelled events and closed stores to reduce transmission of the novel coronavirus, SARS-CoV-2. The NBA, SXSW, Apple, and Nordstrom are high profile examples. Supply chains are disrupted, as manufacturers close facilities, cancel orders and postpone shipments.

This is the PowerPoint slide deck for this panel presentation.

The National Institute of Standards and Technology (“NIST”) which is part of the US Commerce Department began its efforts to manage Cybersecurity in 2013 and in 2018 established the Framework for Improving Critical Infrastructure Cybersecurity, Version 1.1 (https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP. 04162018.pdf) (the “Framework”) which sets guidelines for private sector companies to follow to be better prepared in identifying, detecting, and responding to Cyberattacks.

This is the PowerPoint slide deck of the presentation.

Texas civil litigators have a powerful tool available to seek prompt dismissal of adverse claims: A motion to dismiss under the Texas Citizens Participation Act (TCPA). This paper focuses on the TCPA, covering its history, 2019 legislative amendments, burden-shifting analysis (including a suggested revision to the familiar score), monetary awards, and fast-paced procedures. More broadly, I analyze the trends and statistics in TCPA jurisprudence, and discuss the shifting tide that has occurred over the last two years. Although this paper provides updates about many opinions issued in 2019 and 2020, it is not a comprehensive research document and should not be relied upon as such. Especially considering that multiple TCPA opinions are issued each week, updated research should always be conducted in this area before proceeding.

The basic principle of non-compete law is reasonableness, and that’s a pretty fuzzy concept. That means there will almost always be some argument that no matter how well the non-compete is drafted, it is unreasonable. Still, there are ways to draft a non-compete to maximize the chance that a court will enforce it later. So here are the key questions that come up when you’re drafting a typical Texas non-compete.

It is clear that the 2020 proxy season will be dominated by environmental, social and governance (ESG) issues. The level of scrutiny being given to this topic is not surprising given the public statements of several large influential investors and the revised statement of the Business Roundtable. It has been suggested that the revised BRT Statement on the Purpose of a Corporation represents a paradigm shift towards a more stakeholder-driven approach to governance. A public company’s ESG performance presents “important opportunities to mitigate risk and to drive long-term value by integrating material ESG topics into corporate strategies, elevating board acumen, improving governance quality, and enhancing communication with shareholders and stakeholders.

The PDF has links to useful resources, which are provided herein.

Statutory developments beginning in the 1990s have impacted the analysis of fiduciary duties in the Texas business organizations context. The duties of general partners are now defined by statutory provisions that delineate the duties without referring to them as “fiduciary” duties and specifically provide that partners shall not be held to the standard of a trustee. Whether limited partners in a limited partnership have fiduciary duties is not well-settled, but the Texas Business Organizations Code (BOC) clarifies that a limited partner does not owe the duties of a general partner solely by reason of being a limited partner. While the fiduciary duties of directors are still principally defined by common law, various provisions of the corporate statutes are relevant to the application of fiduciary-duty concepts in the corporate context. Because limited liability companies (LLCs) are a relatively recent phenomenon and the Texas LLC statutes do not specify duties of managers and members, there is some uncertainty with regard to the duties in this area, but the LLC statutes allude to or imply the existence of duties, and managers in a manager-managed LLC and members in a member-managed LLC should expect to be held to fiduciary duties similar to the duties of corporate directors or general partners. In each type of entity, the governing documents may vary (at least to some extent) the duties and liabilities of managerial or governing persons. The power to define duties, eliminate liability, and provide for indemnification is addressed somewhat differently in the statutes governing the various forms of business entities.

A number of employers across Texas, and their attorneys, are facing some of the most difficult decisions that they ever faced in the workplace: an ever changing legal environment full of risk. The COVID-19 pandemic has upended employment law. Many companies have been unprepared for the changes that have occurred. Some employers have adapted well to the new working environment, but that does not mean that they will be safe from the oncoming tidal wave of employment and labor law related lawsuits and administrative actions. There are a number of major issues that these businesses and the attorneys that advise them will face. These issues will also be among the most common claims that are brought by employees and their counsel. All businesses need to do their best to address the issues below to avoid legal liability and protect employees.

Under the Texas Constitution, the Texas Legislature must meet in regular session every two years for a period not to exceed 140 days. The Texas Constitution also sets out specific timelines for the order of business for the Texas Legislature during those 140 days. Given these constitutionally limited time frames along with those prescribed by legislative rules, the Legislature must set its priorities carefully. In short, while bills may be filed, referred to committee, and even heard in a public hearing, the system is largely designed to ensure that only a small percentage of the bills that are filed ultimately become legislation (subject to gubernatorial response under the Texas Constitution, of course). For example, last session, over 7,500 bills were filed. 1,429 of those bills made it to the Governor’s desk and of those, 1,323 were signed, 56 were vetoed, and 144 were enacted without the Governor’s signature.

How to use Zoom (or something like it) effectively in a mediation.