Law Library

New ABA book provides guidance for navigating the M&A process

The American Bar Association Business Law Section has published a new book titled “The Role of Directors in M&A Transactions: A Governance Handbook for Directors, Management and Advisors” that gives directors, management and legal and financial advisors a framework for providing effective oversight of merger and acquisition deals. The book is a project by the Business Law Section’s Joint Task Force on Governance Issues Arising in Business Combination Transactions and the Mergers and Acquisitions and Corporate Governance Committees.

By exploring the important aspects of a good board process and describing the practical implementation of the directors’ legal duties, this handbook will provide invaluable guidance to boards and management, and the lawyers and bankers advising them, as they plan for and oversee M&A transactions. Concise and practical, this roadmap provides clarity and insight into the complex process of M&A transactions and outlines the courts’ expectations of both the target and the buyer board at key points in the M&A process. In addition, the book discusses:

• Key governance issues in M&A and the board’s central role in the M&A process

• Identifying and managing conflicts

• Exploring strategic alternatives, including preparing for a potential transaction and dealing with the pressure to sell

• Board process in engaging deal counsel and financial advisors, and key components of the sales process

• Negotiation of confidentiality and standstill agreements

• When and how to form a special committee

• The board’s continuing role after signing and before closing

• “The Role of Directors in M&A Transactions” was edited by:

Diane Holt Frankle, retired partner with Arnold & Porter Kaye Scholer LLP. Her M&A career includes over 100 deals, valued at more than $12 billion, with a wide variety of technology, life sciences, health care and education companies. As a senior governance advisor, she provides boards and management corporate governance advice.

Michael J. Halloran, partner of Halloran Farkas + Kittila LLP. He has spent most of his career working on M&A transactions, including as general counsel of Bank of America, where he completed 29 acquisitions. He has also served as counselor to the chairman and deputy chief of staff of the Securities and Exchange Commission.

Lawrence A. Hamermesh, professor emeritus at Widener University Delaware Law School and executive director of the University of Pennsylvania Law School Institute for Law and Economics. He is the reporter for the Business Law Section’s Corporate Laws Committee, which handles drafting and revision of the Model Business Corporation Act.

Patricia O. Vella, partner of Morris, Nichols, Arsht & Tunnell LLP, where she provides advice on corporate governance matters and a variety of corporate transactions for publicly traded and privately held corporations. Vella is often called to advise on mergers and acquisitions, ?nancings, asset sales and other significant transactions.


New ABA book shares accounts from legal ­professionals working  in international law

Newly released by the American Bar Association, the fifth edition of “Careers in International Law” is an essential resource for law students, attorneys and nonlawyers interested in expanding into all aspects of the global arena of law practice.

The book is intended to guide a broad audience, including lawyers and public- and nonprofit-sector workers, by presenting a diverse lineup of authors who describe their experiences of how they transitioned into international legal practice. These 15 contributors share their career trajectories in different varieties of practice and geographical locations. Each describes their backgrounds, the evolution of their careers and how their goals influenced their decision to take this path.

Despite their different backgrounds, the contributors provide similar blueprints for aspiring international lawyers: Create a plan and timeline for your efforts; find supportive and trustworthy mentors; prioritize face-to-face connections and networking groups; and join bar associations and engage as an active member.

“Careers in International Law” serves as an invaluable resource that offers insiders’ perspectives and a clear plan of action for those who aim to uphold the rule of law and be of service to the international community.
Editor Marcelo E. Bombau is a partner in the BOMCHIL firm in Buenos Aires, Argentina, and is part of its mergers and acquisitions and telecommunications and media law departments. The 2014-15 chair of the ABA Section of International Law, he was the first non-U.S. qualified lawyer to be selected for such a position.


New ABA book addresses fear in the legal profession and strategies  to work through it

Just published by the ABA, “Untangling Fear in Lawyering: A Four-Step Journey Toward Powerful Advocacy” acknowledges feelings of self-doubt in a field often known for confidence and presents grounded, authentic solutions to manage them. Author Heidi K. Brown moves past outdated mantras by encouraging lawyers and law students to confront and understand their fear, so they can harness its useful properties and break down its manifestations as anxiety and depression.

For law students, junior lawyers and even established attorneys, a perceived fear of failure and other threats can override assurance in their earned abilities and expertise. “Untangling Fear in Lawyering” helps legal professionals ensure that anxieties do not block learning or performance by discussing:

• The reality, causes and consequences of fear and the ability to handle mistakes;

• Cognitive and emotional roots of fear that fester when unacknowledged;

• Guidance, education and training from various professional fields that can transfer to the legal arena;

• The four-step program that will reframe attitudes and approaches to controlling fear.

This guidebook aims to make the practice of law accessible, meaningful and fulfilling by easing stress for those striving intellectually but struggling emotionally in the profession. It includes helpful checklists, appendices and recommendations for educators, managers, discussion groups and workshops.

Brown is a law professor at Brooklyn Law School and a former litigator in the construction industry. Having struggled with anxiety and fear through law school and nearly 20 years of law practice, she now champions the power of law students and lawyers to be impactful advocates. Brown is also the author of “The Introverted Lawyer: A Seven-Step Journey Toward Authentically Empowered Advocacy” and “The Mindful Legal Writer.”


ABA publishes book on best practices to negotiate and draft cloud computing agreements

The American Bar Association Business Law Section has published a new guide, “Cloud 3.0: Drafting and Negotiating Effective Cloud Computing Agreements” that provides best practices to effectively review, evaluate, draft and negotiate cloud computing agreements.

The one-sided, standard boilerplate agreements for cloud computing are slowly evolving to meet regulatory and legal environments, and not all cloud agreements are created equal. This guide, edited by Lisa R. Lifshitz and John Rothchild, will help lawyers create agreements that are more clearly expressed and better suited to their customers’ needs, taking into account the technological, business and legal considerations of an organization’s use of cloud computing technologies.

“Cloud 3.0” is intended to teach lawyers and others to understand cloud agreements, providing best practices when drafting and negotiating cloud computing agreements, including:

• How to evaluate vendors and recognize agreements that heavily favor the vendor

• Detailed analysis of service levels in cloud agreements, enabling you to negotiate for guarantees that will serve your clients’ needs

• Warranties, indemnities and limitations of liability in cloud contracts

• Best practices for cloud privacy and maintaining security

• Tips for effective cloud negotiations to better arm you to create “win-win” agreements

• Alternative dispute resolution, litigation strategies and bankruptcy considered in the context of cloud agreements

• Mitigating risk through cyber-liability insurance

Negotiating the exit from a cloud contract and ensuring successful transition, whether to another provider or an in-house solution

Lifshitz is a partner in Torkin Manes’ Business Law Group in Toronto and is the leader of the firm’s Technology, Privacy & Data Management and Emerging Technology Groups. She has expertise in preparing and negotiating technology agreements, including cloud and managed services, mobile payment, system acquisition and master services agreements. She also advises on privacy, data security and cybersecurity legal matters and provides guidance on IoT, AI/smart contracts, blockchain and open source issues.

Rothchild is a professor at Wayne State University Law School in Detroit. He specializes in intellectual property and technology law, teaching courses including The Law of Electronic Commerce, Copyright Law, Constitutional Law and Trademarks and Unfair Competition. He is editor of the ABA Cyberspace Law Committee’s annual Survey of the Law of Cyberspace, and has edited several books about technology law.