Archive for the ‘Law’ Category

Government Complexity and the New Federal Healthcare Mandate

Saturday, October 30th, 2010

As a follow up to my last post (“U.S. government operations can be incredibly complex”), I wanted to provide a chart of the new U.S. health care system.  Healthcare represents 17% of the U.S. economy.  Unfortunately, Obamacare was passed with no one having actually read the bill.

Obamacare is modeled on Romneycare, the system in place in Massachusetts since 2006.  In the several years since Romneycare has gone into effect, healthcare costs have soared far beyond the national average.  Massachusetts now has the highest health insurance costs, the highest medical costs, the fastest rising costs and the longest waits for doctors in the nation.

Complexity itself is a major problem in organizational function.  The chart below does not bode well for the nation as a whole.  A larger version of the chart can be accessed here.

How to Develop, Sell and Maintain Gear for the Military

Wednesday, September 15th, 2010

U.S. government operations can be incredibly complex.  The KISS philosophy (“Keep It Simple Stupid”) doesn’t always apply even when those involved want it to, due to numerous laws and regulations.

The chart below, a summary published by the Pentagon’s Defense Acquisitions University, covers the process for purchasing equipment.  It serves as a pictorial roadmap of key activities in the systems acquisition processes.  It is available here in greater detail (You can click on any box within the chart on that page to zoom in.).  The back of the chart is available here.  This is version 5.3 of the chart; version 5.4 is available, but is not interactive.

Four Excellent Private Resources for Federal Government Information

Sunday, March 29th, 2009

As a follow up to my recent post about federal government resources, I wanted to discuss four useful private resources for accessing federal government information.

GovTrack.us allows one to follow the status of federal legislation using RSS feeds or customized trackers.  One also can research members of Congress, bills and resolutions, roll call votes, the Congressional Record and Congressional committees.

OpenCongress summarizes bills in everyday language and monitors related news.

The libraries of the University of North Carolina at Chapel HIll provide a long list of links to federal websites.  These includes links to the executive, legislative and judicial branches and their respective department, administrations, agencies, commissions, courts, etc.; links to federal laws and regulations; and links to bureaus and agencies providing statistics.

Finally, Project Vote Smart offers biographical information on candidates running for office, as well as their voting records, issue positions, interest group ratings, public statements and campaign finances.

Force Majeure Provisions in Outsourcing Contracts

Tuesday, January 20th, 2009

Last week, I provided a general overview of some of the compelling reasons for outsourcing at E-Solutions Integrator.  Outsourcing contracts need to be carefully negotiated as problems can have a huge impact on the company that outsources.

Lawyers tend to use the same  boilerplate provisions despite the type of contract.  That can be a killer in an outsourcing transaction.  For example, one provision that should be carefully reviewed is the force majeure provision.

Force majeure literally means “greater force.”  Force majeure excuses a party from liability or from performing its obligation if some unforeseen event or circumstance beyond that party’s control prevents it from performing as required under the contract.  Thus, force majeure clauses commonly cover Acts of God, such as natural disasters, war, strikes or labor unrest, riots, and the failure of third parties (e.g., subcontractors, suppliers) to perform their obligations to the contracting party.

When negotiating an agreement to outsource on behalf of a client, one should read and limit the list of categories under which force majeure may be claimed.  Sometimes, the vendor’s contract provides includes an unnecessarily broad list.  Additionally, one should limit the duration of any enforced delay.  Consider how long a force majeure event lasts.  Forever?  If so, no one will provide the service.

A force majeure event for one of the vendor’s other customers should not be a force majeure event for your client.  Further, one should make a distinction between a supplier and a subcontractor, the latter typically being more easily and quickly replaced.  Depending on the type of contract, one should consider whether the failure of a supplier should be a force majeure event.

Force majeure events should not include power or equipment failures.  The vendor should have immediate backups when these events occur.  Similarly, software defects should not be force majeure events.

When a force majeure event occurs, it should not relieve the vendor from implementing its disaster recovery plan.  In fact, it must do so when such an event occurs.  The client should have its own business continuation plan as well.  The client should have insurance If the risk can’t be minimized in a particular area.

The Black Book of Outsourcing: How to Manage the Changes, Challenges, and Opportunities and The Outsourcing Handbook: How to Implement a Successful Outsourcing Process are good places to start when considering an outsourcing arrangement.

What is the VIX?

Wednesday, October 29th, 2008

The VIX is a measure of market risk, sometimes called the fear index.  It is used to gauge investor sentiment – whether the broad stock market in the United States is bullish or bearish.  VIX actually stands for volatility index.  it is the ticker symbol for one of the volatility indexes created by the Chicago Board Options Exchange (the “CBOE”).  In fact, the VIX is the most widely used volatility index, and was introduced by Duke University Professor Dr. Robert Whalley in 1993.

Volatility is the fluctuation in the market price of an underlying security.  The VIX measures market expectations of near-term volatility conveyed by S&P500 near-term options prices.  Specfically, the VIX presently is calculated by measuring the volatility of out-of-the-money put and call options on S&P500 stocks for the two nearest expiration months.  It anticipates the volatility of the S&P500 over the next 30 days.  A VIX of 30 means, roughly, that over the next 30-day period, the S&P500 will move 30% on an annualized basis (i.e., more info

8.66% over the next 30 days).

Typically, the VIX is inversely related to market tops and bottoms.  For example, a high VIX implies pessimism and usually means a market is bottoming.  Low values imply optimism.  However, using the VIX solely to determine a market bottom or top doesn’t work because the method isn’t foolproof.  However, there’s no cap on how high the VIX can go.  Historically, a VIX reading of 30 has been a high number. but the VIX has traded over 70 in October, 2008.   Consequently, It should not be used in a vacuum, but is best used with other indicators in order to provide investment guidance.

On March 26, 2004, the CBOE began offering futures contracts on the VIX for trading.  On February 24, 2006, the CBE listed options on the VIX for trading.

VIX and More is a blog that follows the VIX.  Volatility Trading is a new book with a CD-ROM on trading the VIX.

Foreclosure and Two Ways to Avoid Going Through It

Tuesday, October 21st, 2008

Foreclosure means that a borrower can not make the required principal and/or interest payments on a loan secured by an interest in property.  Because of the borrower’s default, the lender has a right to terminate the borrower’s interest in the property.  The procedures vary from state to state, but the end result is that the lender either can take ownership of the property or sell it and the borrower’s equitable or statutory right to redeem the property is barred forever.

Approximately 95% of all residential mortgages in the United States are being paid on time.  That means that there are problems with about 5% of mortgage loans.  If mortgagors (e.g., the homeowners / borrowers) do not pay their mortgage loans, they will lose their homes.

Two other options exist for those facing foreclosure.  First, the borrower can offer a deed in lieu of foreclosure.  This means that instead of waiting for the foreclosure process to occur, the lender consents to accepting the borrower’s property interest immediately.  If the value of the property is below the remaining mortgage debt, the lender usually agrees to forgive the difference.

The second option is known as a “short sale.”  In this case, the borrower sells the property for less than the remaining mortgage debt.  The lender’s consent is required and, as in a deed in lieu situation, the lender usually agrees to forgive the excess owed on the debt.

In both options, the homeowners lose their homes.  Yet, this still can be preferable than going through foreclosure.  First, it takes less time, so the home owner who knows there is no way he can keep his home can shorten the process and the pain.  Second, the home owner also will no longer be legally obligated to pay the debt.  Third, if a foreclosure occurs and the home is later sold for less than the amount owed on the debt, some states allow a lender to pursue the unpaid amount.  However, with deed in lieu or a short sale, the lender almost always consents to forgive any remaining debt.

How a Company May Legally Make a Campaign Contribution to a Candidate for Federal Office

Tuesday, October 14th, 2008

The Federal Election Commission is charged with administering and enforcing the financing of federal elections.  The states individually govern financing law for non-federal, state elections.  For a local election, state law and local ordinances govern.

For a federal election, both profit and non-profit corporations, membership organizations, trade associations and labor unions are prohibited from contributing to or spending money on behalf of a candidate.  However, they may establish or contribute to a political action committee (“PAC”).

Two types of PACs exist, separate segregated funds (“SSFs”) and nonconnected committees.  SSFs, which the afore-mentioned types or organizations can form and administer, may only solicit contributions from individuals associated with the sponsoring organization.  They may absorb the costs of establishing and administering the PAC.  By contrast, nonconnected committees are financially independent and must pay for their expenses using the money they raise.  PACs must register with the Federal Election using FEC Form 1 and have reporting requirements regarding their receipts and disbursements.   Downloadable campaign guides for both types of PACs are available on the FEC website.

All political commitees, such as a PACs, that register and file reports with the FEC are considered 527 organizations.  They are organized under Section 527 of the U.S. Tax Code.  However, the concept of a 527 organization is broad and not all 527 organizations are required to file with the FEC.

The federal contribution campaign limits for 2007-08 are as follows:

Emergency Economic Stabilization Act of 2008

Tuesday, October 7th, 2008

Congress passed, and President Bush signed on October 3, the Emergency Economic Stabilization Act of 2008, H.R. 1424 (the “Act”).  The purposes of the Act are twofold:  It authorizes the Secretary of the Treasury (the “Secretary”) to restore stability and liquidity to the U.S. financial system and to do so in a manner that protects home values, college funds, retirement accounts and life savings; preserves home ownership and promotes jobs and economic growth; maximizes overall returns to American taxpayers; and provides public accountability to the exercise of that authority.

That’s a tall order.  The key provision involves a Troubled Asset Relief Program (“TARP”).  Under this program, the Secretary, through an office of Financial Security that is to be established, may purchase up to $700 billion in financial institution assets.  The assets must be residential or commercial mortgages or securities, obligations or other instruments relating to such mortgages originated on or before March 14, 2008 or other financial instruments that the Treasury determines necessary.  They may be purchased from all U.S. institutions of all sizes, including the licensed U.S. branches and agencies of foreign banks.  The Treasury can manage and sell the assets or enter into financial transactions regarding any purchased asset.

Some other provisions that sought to increase financial stability include an increase in FDIC deposit insurance from $100,000 per account to $250,000 per account until December 31, 2009 and an authorization for the SEC to suspend mark-to-market accounting.

The Act also included a number of unrelated provisions relating to tax relief, tax cut extensions, an R&D tax credit,  tax incentives, mental health and creating environmentally-friendly jobs, among others.

The House Majority Leader, Steny Hoyer, offers a section-by-section summary of the legislation here.

Federal Government Resources

Tuesday, September 30th, 2008

It can be very helpful at times to anticipate what the law will be, not what it is.  A change in the laws, rules or regulations affecting your industry can have a dramatic effect, for example, on how your company operates or the success of a transaction or even of your entire business.

Being a member of industry organizations will help keep your company abreast of potential changes in the law.  But given what’s happened in Washington the past week with a proposed bailout or other solution to address the credit crunch in the U.S., tracking legislation directly via the source can be more timely.

To that end, there are some excellent federal resources available online.  The Library of Congress offers Thomas, which provides easy access to federal legislative and other information.  I primarily have used Thomas to search for specific text in Bills under discussion and Committee Reports, but it includes links to access current activity in Congress, Public Laws since 1973, House and Senate roll call votes since 1989, Presidential nominations, and treaties entered into by the U.S. since 1990, among many other options.  Thomas also has links to other House, Senate, Executive and Judicial Branch resources.

Another useful federal resource is USA.gov, the official U.S. gateway to all government information.  There’s so much information that it can be overwhelming, but the U.S. government has done a good job of providing it on the Internet.  In my opinion, their websites are better organized and easier to use than those of many private companies.

Copyright Flowcharts and Checklists

Tuesday, September 23rd, 2008

I am a big fan of flow charts, process maps and checklists in streamlining and organizing work.  While the downside is that you might miss important detail, I believe that the gains usually outweigh the costs in time saved and energy expended.

I previously highlighted Erik Heels’ excellent drawing that explains copyright law in my post here.  IP law firm Bromberg & Sunstein has a useful flowchart for determining when U.S. copyrights in fixed works expire.  Federal copyright law states that a work is “fixed” when it is embodied in a tangible medium of expression.  If a work is not fixed, it is not eligible for federal copyright protection, although it may have protection under state law.

Cornell University has posted a chart, Copyright Term and the Public Domain in the United States, that details copyright duration in a different format.  The Copyright Advisory Network of the American Library Association offers a Digital Copyright Slider to determine if copyright protects a work that first was published in the United States.

The Copyright Management Center at Indiana University offers a Checklist For Fair Use.  U.S. copyright law basically defines “fair use” to mean that one can use a copyrighted work without infringing on the copyright.

Finally, on a more general level, Professor Lionel S. Sobel has produced a flowchart, a Copyright Navigator, a digital annotated concept map of the fundamentals of U.S. copyright law.

Real Estate Investment Trusts

Monday, September 15th, 2008

As a follow up to my last post noting that hard assets, such as real estate, tend to be good inflation hedges, I wanted to provide some basics on real estate investment trusts (“REITs”).  A REIT is an investment vehicle that owns either mortgage notes, real estate or a hybrid that both mortgage notes and real estate.

REITs came into being in 1960.  Most REITs at that time were mortgage REITS – they owned mortgage notes on real estate assets.  However, today, real estate and hybrid REITS are common.  Via securities, a REIT allows one to invest in large, income-producing real property.  That said, REITs come in a variety of flavors and can be sliced and diced a number of ways.

In the United States, three types of REITs as securities exist.  Publicly-traded REITs register with the U.S. Securities and Exchange Commission (the “SEC”) and trade on national stock exchanges.  The are also non-exchange-traded REITs, which also register with the SEC, but which don’t trade on a stock exchange.  Finally, private REITS neither register with the SEC nor trade on a stock exchange.

Additionally, REITs may be distinguished by the type of real estate they invest in.  This can be either broad or narrowly-focused.  For example, there are office REITs, multifamily property REITs, hotel REITs, shopping center REITs, warehouse REITS and storage facility REITs.

Another way a REIT may differentiate itself is for it to focus on a specific state or geographical region.

Companies must qualify to be classified as a REIT.  To do so, they must meet specific requirements of the Internal Revenue Code.  These requirements include the following:

* The REIT must be managed by a Board of Trustees or a Board of Directors.

* The REIT must be taxable as a corporation.

* The REIT must have 100 different shareholders.

* No more than 50% of the REITs shares may be held by five or fewer individuals.

* REIT shares must be fully transferable.

* At least 75% of the REIT’s gross income must be real estate-related, such as from rents or mortgage interest.

* At least 75% of the REIT’s total assets must be real estate assets.

* The REIT’s stock in its taxable subsidiaries may not be more than 20% of its total assets.

* A REIT must distribute at least 90% of its taxable income to shareholders as dividends.

These are some, but not all, of the main limiting characteristics of a REIT. A good book on real estate syndication in general, including REITs, is Samuel K. Freshman’s Principles of Real Estate Syndication.

Technological Change and Software for Boards of Directors

Saturday, August 30th, 2008

What is amazing about technological change is how quick it is in today’s world.  It seems as if the rate of change in human history can be compared to a snowball that grows bigger and bigger and rolls faster and faster down a hill as time marches on.

Only 25 years ago, printed material permeated our lives.  Today, electronic data has largely complemented or supplanted the print medium for many routine processes.  New software applications seek out niches to exploit like water seeping through the earth to fill all the cracks in a rock.

One niche in which electronic means are taking hold is in software for Boards of Directors.  New software for corporate governance allows for worldwide, instantaneous, 24/7 access via easy-to-use interfaces.  It means that printed materials don’t have to be dragged around or distributed.  Confidentiality and security are enhanced.

State corporate law statutes regarding Board meetings have evolved to reflect this technological change by allowing for meetings by remote communication and remote participation (See, e.g., Massachusetts Bus. Corp. Law ch. 156D, § 8.20).

Companies that offer software or online applications for Boards of Directors include BoardVantage (Director Suite) and Diligent (Boardbooks).  Collaborative content management software, such as that produced by EMC (Documentum eRoom.net), also could be used, although it is not specifically designed for corporate governance.

Practical Advice About Confidentiality Carve-Outs

Thursday, August 21st, 2008

Many different types of agreements include confidentiality provisions.  These provisions define the information that is deemed to be confidential.  I recently reviewed a consulting agreement and it had a flaw common to provisions that discuss confidential information:  the lack of any specificity regarding when information might not be considered confidential.

Broad, generic drafting creates potential flash points.  Instead of protecting both parties by clarifying the details, its broadness makes a potential dispute more likely.  I don’t argue the point that, in some cases, one party purposely will leave a clarifying section (AKA a carve-out) out of the agreement because it is advantageous to do so. But often, it’s just sloppy drafting without carefully crafting what is appropriate in the circumstance.

Here are some carve-outs that I suggested be added to the consulting agreement:

1. Information that, at the time of disclosure, is generally known in the pertinent field or is in the public domain;

2. Information that, after disclosure, becomes generally known in the pertinent field or becomes part of the public domain without breach of the provisions of this Agreement by either party;

3. Information that either party can show it possessed at the time of disclosure and did not acquire, directly or indirectly, from the disclosing party;

4. Information that either party can show it independently developed after disclosure without reference to the other party’s Confidential Information;

5. Information that Contractor can show it received from a third party which did not acquire it, directly or indirectly, from Company under an obligation of confidentiality and which did not require Contractor to hold it in confidence;

6. Information that Company can show it received from a third party which did not acquire it, directly or indirectly, from Contractor under an obligation of confidentiality and which did not require Company to hold it in confidence;

7. Information that is required to be disclosed by applicable law, by rule or regulation of a court or government agency of competent jurisdiction, or pursuant to legal process; provided, however, that the party required to make such disclosure shall (a) use its best efforts to limit such disclosure, (b) use its best efforts to promptly provide the other party with advance notice of any such request for disclosure so that said other party may seek a protective order or such other appropriate remedy as said other party deems necessary, and (c) make such disclosure only to the extent so required.

Number 7 is an interesting provision, in that, without it, a party could be stuck between being in violation of the law or breaching the contract.  Let’s say Company is sued by a third party and confidential information, as defined by the Company-Contractor Agreement, is or becomes an issue in the lawsuit.  If the third party’s lawyer deposes Contractor, but the Company-Contractor Agreement doesn’t include # 7, then if Contractor testifies in the deposition, he is in breach of the Agreement – and could then be subject to suit by Company.  Yet if he does not testify, he is in violation of the law.  Clearly, it is in Contractor’s interest to include this provision in the Agreement.

The Legal Underpinnings of Annual Meetings

Thursday, July 24th, 2008

A corporation in the United States is a legal entity that typically is formed to conduct business.  Its internal affairs are governed by the law of the state in which it is incorporated.  That means that under state law, a company’s shareholders must annually elect directors and transact other business that may be appropriate at the time.  This may be done at an annual meeting.  However, it is not only state corporate law that governs annual meetings.

The corporation’s organizational documents – the articles of incorporation (AKA certificate of incorporation) and by-laws – also control annual meetings.  For example, they may allow action to be taken without a meeting, upon the written consent of the shareholders.  Organizational documents provide the skeleton of the annual meeting, in that that may provide for the meeting time, date and place (or the way to determine the meeting time, date and place), setting the record date to determine the shareholders who will be eligible to vote and the voting rights of various classes of securities if there is more than one class.

Corporations with securities registered on a national securities exchange also must comply (unless they are exempted securities) with proxy rules, the rules and regulations enacted by the Securities and Exchange Commission (SEC) under Section 14 of the Securities Exchange Act.  Broadly stated, a proxy is a consent or authorization to act for another.  Regarding an annual meeting, the SEC’s proxy rules govern the form of the proxy and the form of the annual report provided to shareholders, regulate the information to be presented in the proxy statement, address the procedures pursuant to which shareholders receive the proxy and annual report before a meeting, and also mandate certain filing requirements.

Finally, national stock exchanges  (e.g., the New York Stock Exchange) have listing requirements which include rules addressing annual meetings.  Corporations with securities listed on a national stock exchange must comply with such rules.

Securities Class Actions

Wednesday, June 18th, 2008

I once read that 1/3 of all publicly-traded U.S. technology companies had been involved in securities class action litigation. This has trended down this decade, but such cases still are being filed.

Stanford Law School, in cooperation with Cornerstone Research, a firm that consults to attorneys involved in complex business litigation, maintains a securities class action clearinghouse. It provides a wealth of information regarding individual federal class action cases alleging or involving securities fraud. This includes copies of litigation documentation as well as the prosecution, settlement and defense of cases, as well as statistical information.