Legal analysis of servicer safe harbor

The Helping Families Save Their Homes Act (H.R. 1106) has been passed by the U.S. House of Representatives and is now under consideration in the U.S. Senate. It is aimed at preventing mortgage foreclosures and enhancing mortgage credit availability.

The bill, and the concept of servicer safe harbor, also is now the subject of a free audio webcast and white paper from securitization litigation expert Talcott J. Franklin, co-author of two noted legal treatises on securitization from West.

In addition to Franklin, the webcast features:

• Aline van Duyn, U.S. Markets Editor, Financial Times
• Eric J. Brenner, partner, Boies, Schiller & Flexner LLP
• Micah S. Green, partner, Patton Boggs LLP, and former President and CEO of The Bond Market Association
• Hamish P. M. Hume, partner, Boies, Schiller & Flexner LLP
• Katherine M. Porter, associate professor, The University of Iowa College of Law

The free webcast, titled The Next Scandal in the Credit Crisis, is available here.

The free white paper from Franklin, titled Mortgage Servicer Safe Harbor: A Legal and Policy Analysis, is here.

Franklin is the co-author of , Emergency Economic Stabilization Act Handbook and Mortgage and Asset Backed Securities Litigation Handbook, published by West Legalworks.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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Doing deals in China

The practice of law in the People’s Republic of China can be a challenge for any attorney working on behalf of companies doing business with the Chinese.

China, now the world’s third-largest economy and the recipient of more foreign investment each year than any other country, can be a bit intimidating. Its business laws and the practice of deal-making have long been a source of confusion or mystery.

But it doesn’t have to be that way.

I recently talked with Owen D. Nee Jr., of counsel with Jones Day, for a Westcast podcast (Listen to the audio).

Nee told me the failure of many joint ventures is linked to basic misunderstandings of the deal-making process, which too often occur because the investor or its counsel fail to study the applicable legal ground rules.

Nee wrote the new Shareholder Agreements and Joint Ventures in China from West, and co-authored Mergers and Acquisitions in China with Jingzhou Tao, partner at Jones Day.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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Westcast: Marketing Professional of the Year

Timed for release this week from the LMA Conference in National Harbor, Maryland, the latest Westcast podcast features a discussion on legal marketing with someone who certainly knows the impact marketing can have on a law firm’s success.

Hubbard One named Deborah Roth Grabein, director of marketing at Andrews Kurth LLP, as its Marketing Professional of the Year in the 2009 Hubbard One Excellence in Legal Marketing Awards.

Roth Grabein has more than 25 years of experience in the legal industry. By leveraging leading marketing and business development technologies, she has built an impressive track record of working with her firm’s attorneys to develop and retain clients.

One of Grabein’s recent accomplishments was the implementation of an enterprise relationship management (ERM) system that reviews existing data sources to uncover valuable information about the firm’s network of relationships with clients and prospective clients. The initiative was delivered on time, on budget and has surpassed expectations, due in large part to Deborah Roth Grabein’s leadership, her team, and her partnership with other firm leaders.

Listen to the Westcast podcast with Deborah Roth Grabein.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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West author confirmed to DOJ post

The U.S. Senate unanimously confirmed David Kris as assistant attorney general for the Justice Department’s National Security Division.

Kris is the co-author of National Security Investigations and Prosecutions, published by West.

His confirmation yesterday is the subject of this article on Law.com.

Kris spent the last six years as senior vice president and deputy general counsel at Time Warner. From 2000 to 2003, he was associate deputy attorney general. In that role, his unclassified responsibilities included supervising the government’s use of the Foreign Intelligence Surveillance Act (FISA).

To hear some of his insight on national security, listen to this Westcast podcast.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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Challenging times for immigration law

Attorney – and West author – Careen Shannon recently paid a visit to the headquarters of the legal businesses of Thomson Reuters to help get the word out about a new book.

Shannon, along with Austin Fragomen and Daniel Montalvo, wrote the State Immigration Employment Compliance Handbook.

Shannon is with Fragomen, Del Rey, Bernsen & Loewy. She also is an adjunct professor at at the Benjamin N. Cardozo School of Law.

In this video interview, she told us there’s a real need for attorneys and businesses to pay closer attention to state immigration laws and the consequences of violating them:

Shannon, along with Fragomen and Montalvo, also is featured in this Westcast audio podcast, discussing the reason for the rise in state immigration laws and the challenges for abiding by them.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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State immigration laws

Noted immigration attorney and author Austin T. Fragomen Jr. says the increase in states enacting their own laws about the employment of unauthorized foreign workers requires businesses to learn more about those regulations and their relationship to federal laws.

“Companies frequently don’t understand the consequences of these state immigration laws,” said Fragomen. “This is a very fast-changing area of the law.”

Fragomen co-authored the newly-released State Immigration Employment Compliance Handbook, published by West, with Careen Shannon and Daniel Montalvo.

All three also participated in this Westcast podcast discussion about state immigration laws and the challenges for businesses and attorneys who need to understand them.

They also discuss the resources contained in their book which includes the full text of relevant state laws and state regulations for employing noncitizens and in-depth analysis of those laws.

“The specter of a state revoking a corporation’s license to do business in that state is a pretty profound and significant penalty,” says Fragomen. “So, this in an important area for a new publication.”

Austin Fragomen is chairman, Fragomen, Del Rey, Bernsen & Loewy, P.C; Careen Shannon, of the same firm, also is an adjunct professor at the Benjamin N. Cardozo School of Law; and Daniel Montalvo is an immigration lawyer and author.

In addition to the State Immigration Employment Compliance Handbook, Fragomen, Shannon and Montalvo wrote the Immigration Employment Compliance Handbook, which covers federal immigration laws. 

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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LegalTech’s “Ten Tech Stars”

Bob Ambrogi, who we talked to at LegalTech New York for this post, has offered up a recap of the show on Legal Blog Watch.

He’s also posted the latest Lawyer2Lawyer podcast, with J. Craig Williams, titled “LegalTech NY 2009 Ten Tech Stars.”

The podcast features an interview with Preston McKenzie, vice president, Client Development, Thomson Reuters.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters 

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409A and executive compensation

Ask attorney Garth Gartrell what keeps him up at night – when it comes to thinking about executive compensation, that is – and you’re likely to hear about Section 409A of the Internal Revenue Code.

Created by the Internal Revenue Service (IRS) in the wake of the Enron scandal, 409A regulates the tax treatment of nonqualified deferred compensation, which includes supplemental executive retirement plans and supplemental defined contribution plans (such as those that wrap-around and supplement qualified 401(k) plans), whether paid to executives or any other employees.

“409A dominates the field of executive compensation right now, particularly in severance agreements but also in many aspects of compensation in a merger,” says Gartrell, shareholder, Greenberg Traurig, LLP.

Gartrell says Enron changed everything for executive compensation.

“Enron drove these fundamental changes that we’re going to have to be dealing with that are going to be changing the landscape of executive compensation for years to come,” Gartrell says. Hear more from Gartrell about Enron’s impact on executive compensation (1:54).

In addition to 409A, Gartrell monitors the IRS for other developments in executive compensation.

“I’m paying attention to anything that the IRS might have to say especially with the executive compensation wrinkles that have arisen out of the banking rescue plans,” Gartrell says.

Gartrell says executive compensation remains a varied and challenging area of the law. “The field touches so many complex areas, like securities, corporate law, tax, and accounting rules,” says Gartrell.

Gartrell is the co-author of Executive Compensation for Emerging Growth Companies, 3d, with Steven Lapidus, the founder and co-chair of Greenberg Traurig’s Global Benefits and Compensation group.

Their book, published by West, has a special emphasis on annotated forms that Gartrell and Lapidus have developed over many years of practicing in the field, including many ideas and forms since the first edition was published.

Executive Compensation for Emerging Growth Companies, 3d is available on the West Web site.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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New risks lead to changes in insurance coverage

As insurance law changes to address the issues of privacy, intellectual property and technology, lawyers face new challenges and the rise of new liabilities and policies.

“The law really hasn’t developed to cover a lot of these things and providing advice with regards to those types of activities is a challenge,” says Christopher Keegan, senior vice president and national resource for Errors and Omissions insurance coverage for Willis of New York, Inc.

“I think keeping up with the intellectual property risks themselves is probably the biggest challenge,” says Keegan. ”We in the insurance industry are following those developments and trying to pinpoint what the risks might be.” He cites social networking as one of the areas where assessing IP risks is difficult.

I interviewed Keegan, Robert Chesler, and Tod Zuckerman for a Westcast podcast about their book from West, Assets and Finance: Insurance Coverage for Intellectual Property and Cyber Claims, the 2008-2009 edition.

Chesler, chair of the Lowenstein Sandler Insurance Practice Group, explains some of the history in this area. 

“Over the past decade, creative forces within the insurance industry designed new types of policies to protect from claims of intellectual property infringment, invasion of privacy, loss of data and system disruptions,” Chesler says. “We’re really now in a period of the creation of an entirely new insurance paradigm. One that’s designed to address the risks that corporate America now faces.”

Since the early 2000s, there’s been a specific exclusion for intellectual property risks that eliminates coverage for most, but not all of these, according to Tod Zuckerman, a solo practitioner in San Francisco. “It’s a moving target for the practicing attorney who represents policyholders.”

You can hear from Chesler, Keegan and Zuckerman in this Westcast podcast. 

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters 

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Law School Exchange connects law profs

Law School Exchange , a new online networking and content sharing site from West and Foundation Press, takes the term “knowledge sharing” to a new level for law school faculty in the United States.

With its debut this week, professors now can use Law School Exchange to publish and distribute articles, books and other materials for research, teaching and scholarly purposes – and also search and download the work of their colleagues – across campuses.

We talked about it in this Westcast podcast with Steve Nickles, C.C. Hope Chair in Law and Management, Wake Forest School of Law. “For law faculty around the country, you might think of Law School Exchange as a combination of Facebook, the Social Science Research Network (SSRN) and Amazon.com. There’s really nothing like it generally or specifically out there in any market,” says Nickles, who helped develop the ideas within Law School Exchange. “It creates an entirely new relationship between faculty, authors and publishers.”

Material on Law School Exchange includes text, PDFs, photos, PowerPoint presentations, links to videos and more. Professors also can pull content from selected West Academic Publishing and Foundation Press books, teacher’s manuals and supplements.

Registration and use of Law School Exchange is free.

Beyond the unique ease of publishing and online collaboration that it provides for professors, Nickles says Law School Exchange will enhance the education of law students in the long run.

“The purpose of this in the end is to make better legal education and faculty will be able to find materials on Law School Exchange that they can then adopt and make available to their students in several ways, including through TWEN (The West Education Network),” says Nickles (who also helped West develop TWEN).

“Law School Exchange will allow professors to really mix and match not only materials coming from West and from Foundation Press but those and all kinds of other materials for the subject that you’re teaching that have been added by law faculty across the country. It’s going to allow us to have the richest set of teaching materials that have ever been available for legal education.”

Nickles invites faculty who are interested in learning more about Law School Exchange to e-mail him at snickles@wfu.edu. Or, send an e-mail to west.lawschoolexchange@thomsonreuters.com or call 1-800-486-4876. You also can read the news release for more information.

Again, there’s also a Westcast podcast with Nickles explaining the development of Law School Exchange and its benefits.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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Continued law market weakness, says latest Peer Monitor Index

Law firms continue to struggle with weak demand and productivity as a result of the economic slowdown. 

The Peer Monitor Economic Index (PMI) from West fell two points in the third quarter of 2008 despite a rebound in demand late in the quarter. PMI is a composite index of law firm market performance using real-time data drawn from major law firms in the U.S. and key international markets.

As the economy slows, PMI has been trending lower, dropping in five of the last seven quarters.

The complete PMI analysis for the third quarter can be downloaded here.

You also can listen to a Westcast podcast discussing the Q3 PMI results.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters 

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The Headnote of the Day

Last October, West launched the Headnote of the Day as a way to highlight West headnotes that are especially “humorous, profound or interesting.”

Using the text of the headnote – plus, an illustration especially suited to it – the Headnote of the Day is designed to offer a diversion during a legal professional’s day.

Headnotes, of course, summarize points of law in judicial rulings. They are written by West attorney editors and classified within the exclusive West Key Number System®.

The Headnote of the Day is the brain child of Al Maleson, a senior copywriter at West, who in addition to writing advertising during his workday also gets to choose which headnotes to publish.

But it’s not easy.

“I am continually trolling for headnotes,” Maleson says. “I go into ALLCASES on Westlaw and enter various search terms in the Headnote (HE) field. I enter search terms likely to dredge up headnotes that are amusing, serious or profound. I also enter random combinations of words. My goal is to bring up a wide variety of issues thus increasing the odds that I will find a variety of interesting headnotes.”

Maleson says a good Headnote of the Day has one or more of the following qualities – though, obviously, no single headnote will have them all:

• It is clear and easy to understand
• It is amusing
• It states a fundamental principle or value of American law
• It has strong appeal to a specific segment of the population (Californians, baseball fans, bankruptcy lawyers, etc.), which might encourage people to forward the headnote
• It lends itself to a good illustration
• It doesn’t deal with matters that are especially morbid, depressing, violent or otherwise likely to be offensive or upsetting to readers

Maleson estimates he’s received between 75 and 100 suggested headnotes from West customers and fellow West employees. Most months, he uses up to five of these suggested headnotes.

Illustrations for the Headnote of the Day are done by Curt McAloney.

You can subscribe to the West Headnote of the Day by email or click on the Headnote of the Day page on the West website, or check out the archives back to last October. A Westcast podcast with Maleson also is available.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters 

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Westcast: The importance of a great quote

“It is the trade of lawyers to question everything, yield nothing and talk by the hour” – Thomson Jefferson.

What lawyer, or anyone for that matter, hasn’t needed to find a memorable, stirring or funny quote for a speech?

A great quote can certainly come in handy when you’re looking to inspire people, make them laugh or  – in the case of a lawyer - persuade people to believe in a particular point of view.

Here to help is Thomas J. Vesper’s Uncle Anthony’s Unabridged Analogies: Quotes and Proverbs for Lawyers and Lecturers, published by West.

Vesper has collected more than 25,000 proverbs, quotations and other famous sayings and has organized them by topic and author. He’s been writing them down, with a little help here and there, for 30 years. They include quotes from the Bible, and many famous names including William Shakespeare, Winston Churchill and Will Rogers.

Of course they also come from a not-so-famous name, Vesper’s Uncle Anthony. Here’s a sampling of his wisdom, regarding justice:

“I always heard that Justice was blind, but I didn’t think she was lame too! I seen her blindfolded, but where’s her crutches? She needs crutches!”

And this quote, an appropriate one for the purpose of Vesper’s book:

“Quotations found in books of that stuff are like bullpens for lawyers, when you find yourself in a jam you can go to your best quote like a good closer or middle relief pitcher.”

Vesper says he sees his book helping lawyers find quotes that can make their arguments and points “a lot more credible.”

So, just how important are words to a lawyer’s work? Well, Vesper answers that question with a quote, of course, from Mark Twain:

“The difference between the right word and the almost-right word is the difference between lightning and a lightning bug.”

Vesper offers more insight into his love of quotes in this Westcast podcast.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters 

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E-discovery expert offers advice

Electronic discovery’s rise as a critical component of civil and criminal cases has been swift.

Mistakes in the records management process can prove costly to the bottom line, and in the courtroom, after e-discovery efforts get underway.

“The problem comes not just in searching for electronic material, it’s the searching for it in dozens of locations,” says Jay Grenig, professor of law at Marquette University Law School. “The costs can become exceptional because of the difficulty in determining where those locations are.”

Grenig says the major part of the cost is in the review of the electronic information that is discovered and logged.

“The real cost comes from the privilege and relevance review, going through these documents to make sure that you have not disclosed something that is privileged or protected by work product,” says Grenig.

Grenig says organizations need to ask three questions:

• What is a record?
• How long are we required to retain them?
• What do we do when it comes time to preserve or protect our records?

Grenig is a co-author of “Electronic Discovery and Records Management Guide: Rules, Checklists and Forms, 2008-2009 ed.” from West LegalWorks, with Mary Pat Poteet and Browning E. Marean. Their book takes a proactive approach to discovery of electronically stored information, with an emphasis on proper planning.

“About a third of the book is devoted to records management,” says Grenig. “If you’re going to control these costs you have to think about it at the beginning. You have to have a program to determine when you should destroy documents. You’ve got to cull. You’ve got to get rid of stuff that you don’t need to keep. Because if you don’t, when the lawsuit comes, you’re going to be going through a lot of overburden in order to get to the vein of ore.” Hear from Grenig about how long records should be kept and the need to stop automatic delete systems (1:20).

“Electronic Discovery and Records Management Guide: Rules, Checklists and Forms, 2008-2009 ed.” is available on the West Web site.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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The future for hedge funds

Hedge funds have been an important part of capital markets for the last several years. When the capital markets were healthy and flourishing, hedge funds were very active in encouraging companies to increase shareholder value.

In the last few months hedge funds have not fared as well, leaving investors and the counsel that represent them looking for answers in the courts.

“With the capital markets in a downturn, hedge funds have faced new problems,” says Stephen Fraidin, partner at Kirkland & Ellis LLP and co-chair of a West LegalEdcenter conference coming up Dec. 11 in New York.

“Hedge Funds: Issues and Opportunities in Today’s Capital Markets” will examine current Issues affecting hedge fund activism, the response to activism, how to prepare and respond to a hedge fund attack, and distressed hedge funds.

“People want guidance and we’re gonna try to give them some guidance,” says Fraidin. “I’m hoping that the various participants on the panels, some of whom typically represent hedge funds and some of whom typically represent companies that are the target of hedge fund activism, are going to be able to have a healthy interchange of views so that the people who attend the conference will get a sense of the two sides of the story.” Hear more from Fraidin in this audio clip (:50).

Conference attendees include hedge fund COOs, CFOs, general counsel, portfolio managers and attorneys representing hedge funds.

To register for “Hedge Funds: Issues and Opportunities in Today’s Capital Markets” call 800-308-1700 or go to West LegalEdcenter.com.

Posted by Kevin Hunt, senior communications specialist, Thomson Reuters

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