Navigating Issues for Investment Bankers

Synopsis

The presenters of this course look at the increased scrutiny of investment bankers and the rising allegations of aiding and abetting claims against financial advisors. Among the topics discussed are the elements of an aiding and abetting breach of duty and some case law that surrounds these claims.  In addition, the presenters look at the way that companies are valued and provide strategic tips for avoiding the possibility of an aiding and abetting allegation.

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Outline

I. Investment Banker Issues and How to Address Them
   A. The Rise of Claims Against Financial Advisors
   B. The Four Elements of an Aiding and Abetting Breach of Fiduciary
        Duty Claims
   C. Exculpation Under 102(b)(7) of the Delaware General Corporate
        Law  
   D. How Do You End Up Under Delaware Law? 
   E. Staple Financing 
   F. Breach of Fiduciary Predicate Element of Aiding and Abetting 
       Claims  
   G. Breach of Fiduciary Duty Where Board is Fully Informed 
   H. Keep Records of Board Involvement 
   I. Financial Interest in Deals 
   J. Banks and Their Fee Structure 
   K. Walls Within Banks 
   L. Valuation Methodologies
       1. Publicly Traded Guideline Companies
       2. Guideline Transactions  
   M. Strategic Tips
       1. How Banks Can Protect Themselves and Their Board
       2. Good Faith and Banker Involvement 
   N. Using Comparable Companies              
   AfterWords®



Content Provided
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The Penn State Dickinson School of Law

Founded in 1834 by Judge John Reed, The Dickinson School of Law is the oldest law school in Pennsylvania and the fifth oldest in the nation. Throughout its history, the law school has trained distinguished graduates who have gone on to become leaders of the bar, of the judiciary, of government, and of business. These alumni include the first secretary of the U.S. Department of Homeland Security, five governors, three U.S. senators, and more than 100 federal, state and county judges and countless prominent lawyers and civic leaders. In 2000, the law school merged with Penn State, one of the country’s premier research universities, and stepped into a new era of legal excellence.

Penn State Dickinson School of Law Center for the Study of Mergers and Acquisitions

The center, headed by Samuel C. Thompson Jr., former director of the UCLA Center for the Study of Mergers and Acquisitions, examines corporate, securities, tax, antitrust, and other legal and economic issues that arise in mergers and acquisitions. An important part of the center’s mission is to sponsor continuing legal education programs addressing these issues.

The Association of the Bar of the City of New York

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.





Speakers / Authors:

Photo of C. Stephen Bigler

C. Stephen Bigler

C. Stephen Bigler counsels corporations, officers, directors, board committees, stockholders and investors on matters involving the General Corporation Law of the State of Delaware and related issues of fiduciary duty arising in a wide variety of transactional and operational contexts. Steve's practice also includes entity formation, mergers, acquisitions, divestitures, defensive planning, capital-raising transactions and stockholder meetings. A member of the firm's Corporate Advisory and Governance Group, he also represents special committees in transactional matters and renders legal opinions on Delaware corporate law issues.

Mr Bigler was president of the firm from July 2008 to July 2011 and executive vice president from July 2006 to July 2008. 

Active in the legal community, Steve was one of a group of venture capital lawyers who participated in the drafting of model financing documents for the National Venture Capital Association. Steve is a member of the American Bar Association Business Law Section Mergers and Acquisitions and Corporate Process and Documents Committees. He has participated in the drafting of a model merger agreement by the Public Companies Subcommittee of the Mergers and Acquisitions Committee, and in the drafting of a model certificate of incorporation, bylaws and preferred stock designation by the Corporate Process and Documents Committee.

Mr. Bigler also participated in the drafting of the Special Report of the TriBar Opinion Committee: Duly Authorized Opinions on Preferred Stock, and the Report of the Corporation Law Committee of the Association of the Bar of the City of New York regarding the Enforceability and Effectiveness of Typical Shareholder Agreement Provisions. He has written numerous articles on aspects of Delaware corporate law appearing in The Business Lawyer, Insights and other legal publications, and is a frequent speaker regarding Delaware corporate law practice and developments.

Mr. Bigler received his J.D. from the University of Virginia School of Law in 1984, and his B.S., magna cum laude, from Washington and Lee University in 1981.

Photo of Stephen M. Kotran

Stephen Kotran

Stephen M. Kotran was is a partner at Sullivan & Cromwell LLP and is a member of the firm’s Managing Partners Committee, and is head of the firm's Insurance Mergers and Acquisitions practice. Mr. Kotran represents participants and financial advisors in connection with mergers and acquisitions transactions, including negotiated and hostile acquisitions of public companies, negotiated sales of private companies, subsidiaries and divisions, private equity transactions, leveraged buyouts, formation of joint ventures, and asset sales.

Mr. Kotran is a frequent speaker on mergers and acquisitions matters. He is a member of the Committee on Negotiated Acquisitions and the Committee on Federal Regulation of Securities of the Business Law Section of the American Bar Association and of the Special Committee on Mergers, Acquisitions & Corporate Control Contests of the Association of the Bar of the City of New York. Mr. Kotran has been recognized as a leading mergers and acquisitions lawyer in Chambers USA – America’s Leading Lawyers for Business (2007), The Best Lawyers in America (2008 - announced), New York Super Lawyers (2007), The Lawdragon 500 - Leading Lawyers in America (finalist, 2007), The Lawdragon 500 – Leading Dealmakers in America (2007) and The Lawdragon 500 – New Stars, New Worlds (2006) and as a leading insurance transactional lawyer in Chambers USA - America’s Leading Lawyers for Business (2007).

Mr. Kotran’s mergers and acquisitions assignments have spanned a wide range of industries, with particular emphasis on insurance companies and other financial institutions and technology companies.

Mr. Kotran recieved his J.D. from University of Virginia Law School, Order of the Coif, in 1990 and his A.B. from Harvard University in 1985.

Photo of Kevin Miller

Kevin Miller

Kevin Miller is a partner in Alston & Bird's Corporate Transactions & Securities Group and the head of Alston & Bird's Financial Advisors Practice. The firm is regularly ranked by The American Lawyer and Corporate Control Alert among the leading counsel to investment banks acting as financial advisors, and over the last year, Alston & Bird has advised large and midsized financial advisors on over $40 billion of M&A transactions. Mr. Miller is also the co-head of Alston & Bird’s M&A Practice Quality Team.

Prior to joining the firm he served as the head of Credit Suisse First Boston’s Investment Banking Division’s legal group for the Americas. He is a frequent author and speaker on M&A topics, including recent legal and regulatory developments, fairness opinions, stapled finance and the role of investment bankers. Kevin is a member of the advisory boards of DealLawyers.com and the Deal Lawyers newsletter. He is also a frequent contributor to the DealLawyers.com Blog and PLI Securities Law Practice Center.

Mr. Miller received his J.D. from Rutgers University in 1990, his M.A. from the University of Michigan in 1985, and his A.B. from the University of Michigan in 1981. He is admitted to practice in New York.

Photo of Jennifer Muller

Jennifer Muller

Ms. Muller is a Managing Director at Houlihan Lokey, where she heads Financial Advisory Services for the San Francisco Bay Area, as well as the firm’s Technology Group. She is also a member of the firm’s Financial Advisory Services, Fairness, Solvency and Technical Standards Committees. She is responsible for business development and reviews financial opinions for the firm’s clients, including analyzing and valuing closely held and publicly traded businesses, securities and intangible assets for leveraged buyouts, M&A, and general corporate planning. Her clients typically are boards of directors, special committees and other fiduciaries and have included Google, Ciena Corp., Broadcom Corp., NVIDIA Corp., Brocade Communications, Flextronics International and VMware, Inc. She is based in the firm’s San Francisco office.

Ms. Muller speaks frequently at corporate and legal symposiums and seminars on corporate finance and valuation, and she provides commentary in various business publications. Before joining Houlihan Lokey, Ms. Muller was a senior consultant at both Tucker Alan and Peterson Consulting, where she performed litigation consulting services that included analyzing economic damages for trial purposes. 

Ms. Muller graduated cum laude with a B.A. from Claremont McKenna College. 

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Price (USD)

Standard Rate: $124.00
Subscribers: FREE
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Details

Course Code : 776466

Release Date: 7/16/2014 12:00:00 AM
Recorded Date: 9/27/2013
Length: 1hr 7min
Format Type: Video

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