This document summarizes a report on unconscionable conduct in small business and franchising sectors. It outlines the panel's inquiry process and key recommendations. The panel recommended interpretative principles to aid courts in applying statutory unconscionable conduct provisions. It also identified potentially problematic franchising behaviors but said examples should not be legislated. The panel recommended reforms and further research, advocacy, and test cases to develop the law in these areas.
Update on Unconscionable Conduct and Good Faith Developments in Australian Law - Presentation for Prof Justin Malbon's Consumer Law Class, Monash University Faculty of Law, 19.05.10
The document discusses key concepts in US and Indonesian competition law and antitrust legislation. It explains that antitrust laws seek to promote competition by prohibiting anticompetitive business practices that harm consumers. Major US antitrust laws discussed include the Sherman Act of 1890, Clayton Act of 1914, and Federal Trade Commission Act of 1914. The Sherman Act prohibits anticompetitive contracts and monopolies. The Clayton Act addresses early-stage anticompetitive practices, while the FTC Act established the Federal Trade Commission to enforce antitrust laws. The document also discusses key Indonesian competition laws and defines concepts like per se illegality versus the rule of reason analysis.
This document is a letter from several consumer advocacy groups and financial industry organizations to the SEC Chairman regarding a framework for rulemaking around imposing a fiduciary duty on broker-dealers. The groups support extending the fiduciary duty that currently applies to investment advisers under the Investment Advisers Act to broker-dealers providing personalized investment advice. They agree with the approach outlined in the SEC's Section 913 study of applying uniform rules to both broker-dealers and advisers. However, they disagree with concerns from broker-dealers that this would force major business model changes, as the fiduciary duty is already consistent with common broker-dealer practices like commissions and limited product menus. The letter uses a prior SIFMA letter as a
The document discusses how various provisions of the Dodd-Frank Act and proposed Department of Labor rules expand the scope of fiduciary responsibilities for financial entities. Key points include: the Private Fund Investment Advisers Registration Act requiring most hedge fund and private equity fund advisers to register with the SEC; the "Volcker Rule" prohibiting banks from proprietary trading and limiting investments in hedge funds; and the Wall Street Transparency and Accountability Act establishing new regulation of the derivatives market, with some questions around treatment of stable value contracts and regulation of employee benefit plans.
1) CPAs and other financial professionals are now considered fiduciaries under new regulations, requiring them to put their clients' interests first.
2) Record keeping is crucial to demonstrate that all work was conducted within compliance guidelines, including documenting all client meetings and the process for insurance transactions.
3) A lawsuit awarded $14.2 million to a plaintiff after two reputable firms provided dramatically different calculations for life insurance premiums to maintain the same benefits, illustrating the risks of relying on common industry practices. Proper application of prudent investor principles could have avoided litigation.
Public Company Reporting (Series: Securities Law Made Simple (Not Really) Financial Poise
Once public, a company is subject to a continuously evolving landscape of disclosure and reporting requirements. Recent disclosure developments have addressed everything from executive compensation to cybersecurity. In addition, the prevalence of social media has made it such that a company must now consider not only the nuances of what to disclose but also how to deliver that disclosure. Is your company tweeting its earnings reports; are you using your corporate Facebook page to make Regulation FD disclosures?
In this webinar our expert panel provides you with a high-level overview of key public company reporting and disclosure requirements, including the latest developments brought about by the Dodd-Frank Act, JOBS Act, FAST Act and, most recently, the SEC’s Disclosure Effectiveness Initiative, as well as provide you with tangible examples and practical advice on how to comply with the ever-changing means of delivering that disclosure.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/public-company-reporting-2020/
Update on Unconscionable Conduct and Good Faith Developments in Australian Law - Presentation for Prof Justin Malbon's Consumer Law Class, Monash University Faculty of Law, 19.05.10
The document discusses key concepts in US and Indonesian competition law and antitrust legislation. It explains that antitrust laws seek to promote competition by prohibiting anticompetitive business practices that harm consumers. Major US antitrust laws discussed include the Sherman Act of 1890, Clayton Act of 1914, and Federal Trade Commission Act of 1914. The Sherman Act prohibits anticompetitive contracts and monopolies. The Clayton Act addresses early-stage anticompetitive practices, while the FTC Act established the Federal Trade Commission to enforce antitrust laws. The document also discusses key Indonesian competition laws and defines concepts like per se illegality versus the rule of reason analysis.
This document is a letter from several consumer advocacy groups and financial industry organizations to the SEC Chairman regarding a framework for rulemaking around imposing a fiduciary duty on broker-dealers. The groups support extending the fiduciary duty that currently applies to investment advisers under the Investment Advisers Act to broker-dealers providing personalized investment advice. They agree with the approach outlined in the SEC's Section 913 study of applying uniform rules to both broker-dealers and advisers. However, they disagree with concerns from broker-dealers that this would force major business model changes, as the fiduciary duty is already consistent with common broker-dealer practices like commissions and limited product menus. The letter uses a prior SIFMA letter as a
The document discusses how various provisions of the Dodd-Frank Act and proposed Department of Labor rules expand the scope of fiduciary responsibilities for financial entities. Key points include: the Private Fund Investment Advisers Registration Act requiring most hedge fund and private equity fund advisers to register with the SEC; the "Volcker Rule" prohibiting banks from proprietary trading and limiting investments in hedge funds; and the Wall Street Transparency and Accountability Act establishing new regulation of the derivatives market, with some questions around treatment of stable value contracts and regulation of employee benefit plans.
1) CPAs and other financial professionals are now considered fiduciaries under new regulations, requiring them to put their clients' interests first.
2) Record keeping is crucial to demonstrate that all work was conducted within compliance guidelines, including documenting all client meetings and the process for insurance transactions.
3) A lawsuit awarded $14.2 million to a plaintiff after two reputable firms provided dramatically different calculations for life insurance premiums to maintain the same benefits, illustrating the risks of relying on common industry practices. Proper application of prudent investor principles could have avoided litigation.
Public Company Reporting (Series: Securities Law Made Simple (Not Really) Financial Poise
Once public, a company is subject to a continuously evolving landscape of disclosure and reporting requirements. Recent disclosure developments have addressed everything from executive compensation to cybersecurity. In addition, the prevalence of social media has made it such that a company must now consider not only the nuances of what to disclose but also how to deliver that disclosure. Is your company tweeting its earnings reports; are you using your corporate Facebook page to make Regulation FD disclosures?
In this webinar our expert panel provides you with a high-level overview of key public company reporting and disclosure requirements, including the latest developments brought about by the Dodd-Frank Act, JOBS Act, FAST Act and, most recently, the SEC’s Disclosure Effectiveness Initiative, as well as provide you with tangible examples and practical advice on how to comply with the ever-changing means of delivering that disclosure.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/public-company-reporting-2020/
Subcontracts_Me-A Fed Govt Contractor or Subcontractor_MN PTAC_06-09-2016_CBa...Chuck Barry
- The document summarizes key issues related to determining if a company is a federal subcontractor and the flow-down of requirements from prime contracts to subcontracts. It discusses common reasons companies claim they are not federal subcontractors and are exempt from compliance obligations. It also outlines mandatory flow-down clauses, including the 14 clauses that must flow down to subcontracts for commercial items. Finally, it warns of potential "subcontractor traps" and discusses new SBA rules on limitations of subcontracting.
Materi Workshop Legal Due Diligence (LDD) yang di selenggarakan oleh EMLI Training. Materi di sampaikan oleh Bapak Dendi Adisuryo, beliau adalah Partner at ADCO Attorneys at Law.
When advising business clients about doing business in Canada, lawyers must turn their minds not only to the kinds of corporate vehicles which Canadian law permits but also the remedies permitted if disputes arise. In this paper, we highlight the range of remedies available in the common law jurisdictions of Canada to protect shareholders and others from abusive corporate action.
This is the fourth update revision of a paper which was first published on the internet in 2005. It has been widely read and has been well-received by clients and other lawyers. We believe that we have been repeatedly quoted by other lawyers. Our paper was used in global corporate law texts in Asia and was including in required reading for a business valuators program in Canada.
This paper begins by discussing the various sources of shareholder rights, including corporate statutes, articles of incorporation and by-laws, and shareholder agreements. Although securities laws will also be briefly mentioned, the securities regime is exceedingly complex and it is beyond the scope of this paper to address it in detail. We then discuss the remedies provided by corporate statute to shareholders who are aggrieved by the manner in which management conducts the business and affairs of the corporation, including voting, court-ordered meetings, derivative actions, the oppression remedy, investigations, appraisals and court-ordered winding-up on the “just and equitable principle”.
The oppression remedy, widely acknowledged to be the most powerful weapon in the shareholder's arsenal of remedies, focusses on two particular points: the broad definition of "complainant" under corporate statutes, and the manner in which the courts have defined the reasonable and legitimate expectations of shareholders and other "proper persons" under the oppression remedy.
The authors are members of ELLYN LAW LLP Canadian Business Litigation & Arbitration Lawyers, a Toronto law firm, specializing in dispute resolution for small and medium businesses and their shareholders. The firm is a member of the International Network of Boutique Law Firms (www.inblf.com), a prestige network of specialized law firms who have demonstrated pre-eminence their practice fields. Ellyn Law LLP is INBLF’s designated Toronto firm for shareholder disputes and arbitration. Igor Ellyn, QC is the Chair of INBLF's Business Litigation & Arbitration Practice Group.
In the seven years since this paper was first published, ELLYN LAW LLP has acted on dozens of complex shareholder disputes. Despite our long experience in this area, each case brings its shares of new twists and surprises. In each revision of this paper, we have added the benefits of our added experiences.
This chapter discusses various legal issues relevant to small businesses. It covers choosing an appropriate business name and legal structure, factors to consider like liability and taxes. The chapter also discusses contracting, negotiating, and addressing potential legal liabilities. Key terms are defined, such as sole proprietorships, LLCs, independent contractors, litigation, arbitration, mediation, noncompete clauses, and more. Attorneys can help with these legal matters for hourly fees or retainers.
The authors explain how a Business Legal Checkup ("BLC") can be useful. BLC is a diagnostic tool small and medium size businesses can use to verify if legal aspects of their operation comply with law and to minimize risk, litigation and expense. When the BLC is completed, the business owner receives a lawyer’s report red-flagging matters which need correction, improvement or further legal advice. Contact the authors for more information.
Non-competition and Non-solicitation ProvisionsKevin Learned
In this seminar we analyzed non-competition and non-solicitation provisions in the contexts of M&A transactions, employee/consultant relationships and subcontracting agreements. We addressed issues that arise in the drafting and negotiation of these provisions, as well as issues related to enforcement and litigation, with a particular emphasis on issues impacting federal service contractors who operate in the DC/MD/VA region.
Private offerings and broker dealer registration exemptionswww.growthlaw.com
This slide deck describes current legislation that would exempt merger and acquisition professionals from broker-dealer registration requirements, lists SEC rules governing raising capital through private securities offerings, and shows the difference the JOBS Act made in those rules
Risk Containment: Tailoring Contract Provisions with Third Parties to Minimiz...Ethisphere
This document discusses risk containment strategies for tailoring contract provisions with third parties to minimize risks under the Foreign Corrupt Practices Act (FCPA) and maximize compliance safeguards. It recommends including core provisions like anti-corruption representations and warranties, audit rights, and termination rights. Government expectations for diligence, oversight and preventative measures with third parties are high given most FCPA cases involve third parties and companies are liable for their actions.
Private Offering Exemptions and Private Placements (Series: Securities Law Ma...Financial Poise
The private capital markets have become an increasingly important source of funding for both private and public companies alike. Today total capital raised through private placements surpasses total capital raised in public offerings. What’s more, in recent years legislation like the JOBS Act has made a number of significant changes to laws and regulations governing private capital markets. Consequently, understanding the myriad private offering exemptions and how to properly conduct a private placement is crucial for not only for lawyers, but also for executives, managers, directors and anyone involved in corporate finance transactions.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/private-offering-exemptions-and-private-placements-2020/
The document summarizes key provisions of the recently passed Financial Reform Law. It discusses regulations that will expand federal oversight of financial institutions, create a new Consumer Financial Protection Bureau, and reform mortgage and lending practices. Major changes include restricting proprietary trading by banks, requiring "skin in the game" for risky asset-backed securities, and new rules regarding debit/credit fees charged to retailers. The full implementation of the law will take years and financial institutions should consult legal counsel on how it affects their practices.
The accounting standard establishes requirements for disclosure of related party relationships and transactions between a reporting enterprise and its related parties. It defines related parties as those able to exercise control or significant influence over the enterprise. Disclosures include the nature of relationships, types and amounts of transactions, and outstanding balances. The standard aims to highlight the possibility that related party relationships may not reflect arm's length transactions.
Unincorporated Business Entities Section - Limited Liability Partnershipbrighteyes
1. The document discusses limited liability partnerships (LLPs), including their statutory foundation, formation, foreign qualification requirements, differences from general partnerships, and potential situations where partners may lose the limited liability shield.
2. Key points include that LLPs provide limited liability to partners for obligations incurred after the partnership becomes an LLP, but partners remain liable for pre-conversion obligations and those to which they provided personal guarantees. Partners may also be liable under narrow non-liability statutes or if directly involved in actions leading to liability.
3. Hypothetical examples are provided to illustrate scenarios where partners could lose limited liability protection, such as if mandatory contribution requirements in the partnership agreement are not followed.
The webinar featured a discussion of the Supreme Court’s current docket and how it may impact securities professionals. It was jointly presented by Linda Coberly, former Supreme Court clerk and chair of the firm’s appellate and critical motions practice, and partner Jim Junewicz, who focuses on securities offerings, M&A, and corporate governance and frequently lectures on issues relating to capital markets. Participants received both general and Professional Responsibility CLE credit.
This unique program combined information about trends at the Court and specific cases of interest to business, including a discussion about what securities professionals can learn from those cases. Of particular interest was the Court’s recent decision in Omnicare, which provides explicit guidance for issuers preparing securities offering disclosure documents and periodic reports. Ms. Coberly was one of the lawyers representing Omnicare before the Supreme Court.
Alex Howard and Neil Beaton discussed valuations in dissenter’s rights and oppression actions in a webinar sponsored by the AICPA Business Valuation Web Seminar Series: Core Competencies from the Nation’s Leading Experts.
This document discusses the ethical and practical considerations for lawyers wanting to start a side law practice in addition to their primary job. It notes that lawyers must carefully screen for potential conflicts of interest between the side practice and their other job. It also addresses issues like advertising, solicitation, fee sharing and ensuring proper liability insurance is in place. The document concludes that starting a side practice may not be worth the significant costs and effort involved if it becomes nearly as complicated as running a full-time practice. Lawyers should consult with their state bar association if considering a side practice.
Factoring is a financial arrangement where a business can sell its outstanding invoices or accounts receivable to a third party at a discounted rate in exchange for immediate cash flow. This allows businesses access to cash quickly to meet financial obligations when cash flow is tight. The document discusses how factoring works, the types of factoring arrangements, and analyzes how factoring is treated under UAE law. Factoring is considered an assignment of debt under UAE law and certain requirements must be met, such as consent from all parties, for the assignment to be valid. While factoring can be a beneficial way to access cash, businesses must ensure the legal technicalities of any factoring agreements comply with UAE law.
Small Business, Franchising, Leasing, and Consumers - Relevant Australian Leg...Professor Bryan Horrigan
Update on Australian Legal Developments in Unconscionable Conduct and Good Faith Affecting Small Business, Leasing, and Franchising - Presentation for Monash University Faculty of Law research seminar series 24.05.10
'Unconscionable Conduct and Good Faith in the Small Business, Leasing, and Franchising Sectors - The Way Ahead' - Presentation by Professor Bryan Horrigan for Monash University Law Faculty's research seminar series on 24 May 2010
Subcontracts_Me-A Fed Govt Contractor or Subcontractor_MN PTAC_06-09-2016_CBa...Chuck Barry
- The document summarizes key issues related to determining if a company is a federal subcontractor and the flow-down of requirements from prime contracts to subcontracts. It discusses common reasons companies claim they are not federal subcontractors and are exempt from compliance obligations. It also outlines mandatory flow-down clauses, including the 14 clauses that must flow down to subcontracts for commercial items. Finally, it warns of potential "subcontractor traps" and discusses new SBA rules on limitations of subcontracting.
Materi Workshop Legal Due Diligence (LDD) yang di selenggarakan oleh EMLI Training. Materi di sampaikan oleh Bapak Dendi Adisuryo, beliau adalah Partner at ADCO Attorneys at Law.
When advising business clients about doing business in Canada, lawyers must turn their minds not only to the kinds of corporate vehicles which Canadian law permits but also the remedies permitted if disputes arise. In this paper, we highlight the range of remedies available in the common law jurisdictions of Canada to protect shareholders and others from abusive corporate action.
This is the fourth update revision of a paper which was first published on the internet in 2005. It has been widely read and has been well-received by clients and other lawyers. We believe that we have been repeatedly quoted by other lawyers. Our paper was used in global corporate law texts in Asia and was including in required reading for a business valuators program in Canada.
This paper begins by discussing the various sources of shareholder rights, including corporate statutes, articles of incorporation and by-laws, and shareholder agreements. Although securities laws will also be briefly mentioned, the securities regime is exceedingly complex and it is beyond the scope of this paper to address it in detail. We then discuss the remedies provided by corporate statute to shareholders who are aggrieved by the manner in which management conducts the business and affairs of the corporation, including voting, court-ordered meetings, derivative actions, the oppression remedy, investigations, appraisals and court-ordered winding-up on the “just and equitable principle”.
The oppression remedy, widely acknowledged to be the most powerful weapon in the shareholder's arsenal of remedies, focusses on two particular points: the broad definition of "complainant" under corporate statutes, and the manner in which the courts have defined the reasonable and legitimate expectations of shareholders and other "proper persons" under the oppression remedy.
The authors are members of ELLYN LAW LLP Canadian Business Litigation & Arbitration Lawyers, a Toronto law firm, specializing in dispute resolution for small and medium businesses and their shareholders. The firm is a member of the International Network of Boutique Law Firms (www.inblf.com), a prestige network of specialized law firms who have demonstrated pre-eminence their practice fields. Ellyn Law LLP is INBLF’s designated Toronto firm for shareholder disputes and arbitration. Igor Ellyn, QC is the Chair of INBLF's Business Litigation & Arbitration Practice Group.
In the seven years since this paper was first published, ELLYN LAW LLP has acted on dozens of complex shareholder disputes. Despite our long experience in this area, each case brings its shares of new twists and surprises. In each revision of this paper, we have added the benefits of our added experiences.
This chapter discusses various legal issues relevant to small businesses. It covers choosing an appropriate business name and legal structure, factors to consider like liability and taxes. The chapter also discusses contracting, negotiating, and addressing potential legal liabilities. Key terms are defined, such as sole proprietorships, LLCs, independent contractors, litigation, arbitration, mediation, noncompete clauses, and more. Attorneys can help with these legal matters for hourly fees or retainers.
The authors explain how a Business Legal Checkup ("BLC") can be useful. BLC is a diagnostic tool small and medium size businesses can use to verify if legal aspects of their operation comply with law and to minimize risk, litigation and expense. When the BLC is completed, the business owner receives a lawyer’s report red-flagging matters which need correction, improvement or further legal advice. Contact the authors for more information.
Non-competition and Non-solicitation ProvisionsKevin Learned
In this seminar we analyzed non-competition and non-solicitation provisions in the contexts of M&A transactions, employee/consultant relationships and subcontracting agreements. We addressed issues that arise in the drafting and negotiation of these provisions, as well as issues related to enforcement and litigation, with a particular emphasis on issues impacting federal service contractors who operate in the DC/MD/VA region.
Private offerings and broker dealer registration exemptionswww.growthlaw.com
This slide deck describes current legislation that would exempt merger and acquisition professionals from broker-dealer registration requirements, lists SEC rules governing raising capital through private securities offerings, and shows the difference the JOBS Act made in those rules
Risk Containment: Tailoring Contract Provisions with Third Parties to Minimiz...Ethisphere
This document discusses risk containment strategies for tailoring contract provisions with third parties to minimize risks under the Foreign Corrupt Practices Act (FCPA) and maximize compliance safeguards. It recommends including core provisions like anti-corruption representations and warranties, audit rights, and termination rights. Government expectations for diligence, oversight and preventative measures with third parties are high given most FCPA cases involve third parties and companies are liable for their actions.
Private Offering Exemptions and Private Placements (Series: Securities Law Ma...Financial Poise
The private capital markets have become an increasingly important source of funding for both private and public companies alike. Today total capital raised through private placements surpasses total capital raised in public offerings. What’s more, in recent years legislation like the JOBS Act has made a number of significant changes to laws and regulations governing private capital markets. Consequently, understanding the myriad private offering exemptions and how to properly conduct a private placement is crucial for not only for lawyers, but also for executives, managers, directors and anyone involved in corporate finance transactions.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/private-offering-exemptions-and-private-placements-2020/
The document summarizes key provisions of the recently passed Financial Reform Law. It discusses regulations that will expand federal oversight of financial institutions, create a new Consumer Financial Protection Bureau, and reform mortgage and lending practices. Major changes include restricting proprietary trading by banks, requiring "skin in the game" for risky asset-backed securities, and new rules regarding debit/credit fees charged to retailers. The full implementation of the law will take years and financial institutions should consult legal counsel on how it affects their practices.
The accounting standard establishes requirements for disclosure of related party relationships and transactions between a reporting enterprise and its related parties. It defines related parties as those able to exercise control or significant influence over the enterprise. Disclosures include the nature of relationships, types and amounts of transactions, and outstanding balances. The standard aims to highlight the possibility that related party relationships may not reflect arm's length transactions.
Unincorporated Business Entities Section - Limited Liability Partnershipbrighteyes
1. The document discusses limited liability partnerships (LLPs), including their statutory foundation, formation, foreign qualification requirements, differences from general partnerships, and potential situations where partners may lose the limited liability shield.
2. Key points include that LLPs provide limited liability to partners for obligations incurred after the partnership becomes an LLP, but partners remain liable for pre-conversion obligations and those to which they provided personal guarantees. Partners may also be liable under narrow non-liability statutes or if directly involved in actions leading to liability.
3. Hypothetical examples are provided to illustrate scenarios where partners could lose limited liability protection, such as if mandatory contribution requirements in the partnership agreement are not followed.
The webinar featured a discussion of the Supreme Court’s current docket and how it may impact securities professionals. It was jointly presented by Linda Coberly, former Supreme Court clerk and chair of the firm’s appellate and critical motions practice, and partner Jim Junewicz, who focuses on securities offerings, M&A, and corporate governance and frequently lectures on issues relating to capital markets. Participants received both general and Professional Responsibility CLE credit.
This unique program combined information about trends at the Court and specific cases of interest to business, including a discussion about what securities professionals can learn from those cases. Of particular interest was the Court’s recent decision in Omnicare, which provides explicit guidance for issuers preparing securities offering disclosure documents and periodic reports. Ms. Coberly was one of the lawyers representing Omnicare before the Supreme Court.
Alex Howard and Neil Beaton discussed valuations in dissenter’s rights and oppression actions in a webinar sponsored by the AICPA Business Valuation Web Seminar Series: Core Competencies from the Nation’s Leading Experts.
This document discusses the ethical and practical considerations for lawyers wanting to start a side law practice in addition to their primary job. It notes that lawyers must carefully screen for potential conflicts of interest between the side practice and their other job. It also addresses issues like advertising, solicitation, fee sharing and ensuring proper liability insurance is in place. The document concludes that starting a side practice may not be worth the significant costs and effort involved if it becomes nearly as complicated as running a full-time practice. Lawyers should consult with their state bar association if considering a side practice.
Factoring is a financial arrangement where a business can sell its outstanding invoices or accounts receivable to a third party at a discounted rate in exchange for immediate cash flow. This allows businesses access to cash quickly to meet financial obligations when cash flow is tight. The document discusses how factoring works, the types of factoring arrangements, and analyzes how factoring is treated under UAE law. Factoring is considered an assignment of debt under UAE law and certain requirements must be met, such as consent from all parties, for the assignment to be valid. While factoring can be a beneficial way to access cash, businesses must ensure the legal technicalities of any factoring agreements comply with UAE law.
Small Business, Franchising, Leasing, and Consumers - Relevant Australian Leg...Professor Bryan Horrigan
Update on Australian Legal Developments in Unconscionable Conduct and Good Faith Affecting Small Business, Leasing, and Franchising - Presentation for Monash University Faculty of Law research seminar series 24.05.10
'Unconscionable Conduct and Good Faith in the Small Business, Leasing, and Franchising Sectors - The Way Ahead' - Presentation by Professor Bryan Horrigan for Monash University Law Faculty's research seminar series on 24 May 2010
This document discusses the delegation of tasks by lawyers to non-lawyer staff, particularly in the context of real estate law. It makes three key points:
1) Unlike paralegals, law clerks are not independently regulated but are indirectly regulated through the supervising lawyer, who is responsible for their actions. The lawyer has a duty to properly train and supervise any delegated work.
2) The rules of professional conduct set limits on what tasks can be delegated for real estate work, like prohibiting non-lawyers from reviewing title documents or signing documents requiring legal compliance statements. The lawyer retains ultimate responsibility.
3) While delegation is allowed and necessary, lawyers must ensure delegated work is properly
Insider Lease Agreements (Series: Fairness Issues in Real Estate-Based Bankru...Financial Poise
It is a common play in real estate to create a separate operating entity to serve as a tenant and execute a lease between the owner of the property and himself. Typically, this happens in assets which serve as a real estate-based business, such as a retail property. The structured enables the operator to reduce the taxable income of the business and also provide a liability shield for the property owner.
This arrangement can lead to some ethical issues, should the property owner become distressed. For example, is the lease amount above market and therefore being used to inflate the property valuation? Is rent actually being paid? Is there a proper lease in place or just an internal handshake? Attorneys need to understand the set-up in order to know what is in bounds and what is outside the lines.
To view the accompanying webinar, go to:https://www.financialpoise.com/financial-poise-webinars/insider-lease-agreements-2021/
Dr. Antoine Maurice Roussety is Executive Consultant at DST Advisory. He lectures in small business and franchising at Griffith University, Queensland, Australia
It is a common play in real estate to create a separate operating entity to serve as a tenant and execute a lease between the owner of the property and himself. Typically, this happens in assets which serve as a real estate-based business, such as a retail property. The structured enables the operator to reduce the taxable income of the business and also provide a liability shield for the property owner. However, this arrangement can easily lead to some ethical issues, should the property owner become distressed. Where is the line between a savvy real estate strategy and unethical behavior? This webinar presents practice pointers on how to use the ABA Model Rules as a guide to navigating ethical issues in Insider Lease Agreements. Model Rules addressed include those that govern the client-lawyer relationship (Rule 1.7: Conflict of Interest: Current Clients); those that speak to the need for candor toward the tribunal and fairness to an opposing party and counsel (Rule 3.3 through 3.4); and the necessity for truthfulness in statements to others and issues surrounding unrepresented persons (i.e. Rule 4.3).
Part of the webinar series: ETHICAL ISSUES IN REAL ESTATE-BASED BANKRUPTCIES 2022
See more at https://www.financialpoise.com/webinars/
The document summarizes key information for motor vehicle dealers regarding franchise agreements and the current legislative landscape in Australia. It notes that while there is no ideal franchise agreement, recent and proposed changes to laws such as the Franchising Code of Conduct may help improve protections for dealers. It outlines challenges facing the Australian automotive industry and reviews existing legal protections for franchise agreements from unfair contract terms and unjust conduct. The presentation provides an overview of relevant laws and regulations regarding franchise agreements in Australia.
Avoiding Costly Fines: A 2013 Guide to Compliance MandatesSage HRMS
For more than 30 years, Sage has been a leader in the development of Human Resource Management Systems (HRMS) software. Thousands of midsized businesses nationwide have implemented our popular Sage HRMS solutions. From those experiences, we’ve learned that compliance is one of the top challenges facing any human resources department. It can be difficult to stay on top of all of the state and federal workforce laws, regulations, and reporting requirements.
It’s up to HR to ensure that hiring, discipline, and termination practices are compliant with the law. Otherwise, you could put your company at risk of incurring fines, penalties, and employee lawsuits. And mistakes can be costly. More than one-third of private companies surveyed by Chubb Insurance had experienced an employment-law event (EEOC charge filed or employee lawsuit), at an average cost of $74,400 per incident.
Sage created this guide to help you stay informed about the latest workforce compliance laws and regulations that may affect your organization. Staying abreast of current mandates enables you to communicate with and train management and employees so that the company is not at risk of expensive employee lawsuits. As with all issues with legal circumstances, the use of this material is not a substitute for the advice of a lawyer and when in doubt or for advice with respect to any specific human resources mandate please contact your lawyer. Additionally, this material is provided for informational purposes only and not for the purpose of providing legal advice.
Presentation to UNSW School of Taxation and Business Law May 2016 Jason Harris
This presentation discussed the current state of insolvency law reform within the context of insolvency practitioner regulation in Australia and the pending Insolvency Law Reform Act 2016 (Cth).
This document summarizes an article that addresses ethics in litigation in the context of Singapore's Legal Profession (Professional Conduct) Rules, 1998. It discusses the scheme and application of the Rules, the general conduct of proceedings in court, and how the Rules affect the process of cross-examination. Specifically, it outlines the advocate's duties to the court, clients, opposing counsel, and the public. It also discusses obligations related to honesty, confidentiality, professional independence, fairness to others, and more.
The document discusses the terms of reference for the HIH and Banking Royal Commissions and compares their focus on governance issues, potential legal contraventions, performance of regulatory agencies, and policy development. It also provides background on the HIH failure, including its business profile, reasons for collapse relating to financial and governance issues, and consequences. Finally, it discusses ongoing corporate failures and debates around increasing regulation versus focusing on fiduciary duties and accountability.
This document summarizes a new federal securities registration exemption for M&A brokers and how it affects registration requirements under Illinois state law. The SEC issued a no-action letter called MAB that creates an exemption allowing M&A brokers to facilitate transactions without federal registration if they meet 10 requirements. While the MAB exemption affects federal registration, it does not change state registration requirements. In Illinois, brokers must register under the Illinois Securities Law or the Business Brokers Act depending on whether they take the MAB exemption or maintain federal registration. Attorneys must understand how the MAB exemption interacts with state laws to properly advise clients on registration options.
The document discusses criticisms of Australia's Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 and its impact on resource joint ventures. Specifically, it argues that the Bill fails to provide legal and commercial certainty for joint ventures by requiring that cartel provisions be contained within a contract and removing the competition test from the joint venture exceptions. This limits the exceptions' application to informal agreements and day-to-day operational decisions of joint ventures. The document advocates adopting the US approach of evaluating joint ventures based on their competitive effects rather than contractual requirements alone.
The document discusses public procurement in India, including key principles and challenges. It makes the following main points:
1. Public procurement involves acquisition of goods, services, and works by the government and constitutes a significant portion of GDP in India.
2. The Constitution provides the legal framework for public procurement, with articles guaranteeing equality of opportunity and prohibiting arbitrary state action. Procurement must be fair, transparent and follow due process.
3. Key principles of good public procurement include economy, efficiency, fairness, transparency, and accountability. However, flaws in the Indian system include lack of clear laws, unfair practices, low MSME participation and delays.
Auto Injury Litigation From Start to Finish (Ethics)Woodrow Glass
The document discusses Oklahoma Rules of Professional Conduct regarding preventing conflicts of interest, establishing attorney fees, and maintaining client confidentiality. It notes that the rules address conflicts with current and former clients and prohibit representing clients with adverse interests. It also outlines requirements for contingency fee agreements including putting them in writing and specifying the fee calculation method. Additionally, it discusses lawyers' duty to maintain client confidentiality under the rules.
The document analyzes how the Consumer Financial Protection Bureau (CFPB) has used its authority to prohibit abusive acts or practices under the Dodd-Frank Act. It finds that the CFPB has brought 16 cases alleging abusive conduct since 2010. The CFPB most often relies on two prongs of the abusiveness definition - those prohibiting taking unreasonable advantage of a consumer's lack of understanding or inability to protect their interests. Nearly all abusive claims also allege unfair or deceptive practices. The CFPB has rarely used the prong prohibiting interfering with a consumer's understanding and never alone. Overall, the CFPB's use of abusiveness claims has not clearly distinguished what conduct is abusive but not unfair or de
Background TLG has explained to the GC owners that it is vital to ucameroncourtney45
Background: TLG has explained to the GC owners that it is vital to understand the legal system and processes, including the court system and jurisdiction of the courts. This is especially important as GC plans to conduct business over the internet and thus, will have potential transactions throughout the U.S. and, possibly, globally.
For an in initial meeting between GC owners and TLG, Winnie and Ralph asked you to present an overview of the law and the legal system. You explained federalism, common law, and the court system.
In addition, your presentation discussed the nature of law and the legal process. Some of the points included in your presentation are:
(1) the primary purpose of law is to establish a set of rules and guidelines for Society to promote order and to create parameters for acceptable and prohibited behavior;
(2) laws are inevitably subject to interpretation and reinterpretation by courts;
(3) laws must be reasonably specific, and yet sufficiently general, with an inherent flexibility, to withstand the rigors of interpretation and the "test of time";
(4) laws that strike a balance as described in (3) above, usually endure as relevant, applicable rules, even with societal changes and reinterpretations;
• example: arguably, the U.S. Constitution has withstood the test of time, partly because of an inherent balance of specificity, generality, and flexibility
(5) laws are promulgated and interpreted by human beings, and thus, are imperfect;
(6) some laws have a worthy purpose, but are difficult to adequately enforce, i.e., speed limit laws;
(7) all laws are not necessarily ethical; some conduct can be legal, but considered unethical;
(8) U.S. law has a very dominant protective purpose – protecting all citizens, as well as providing special protections for certain groups of people, in certain circumstances, i.e., minors;
(9) fairness to all is a primary goal of law, but what is fair to one group may be unfair to another group; what is fair in one situation may be unfair in another situation - every right granted to an individual or group, to some extent, impinges on the rights of another individual or group;
(10) legislatures enacting laws, and courts interpreting laws, must weigh and balance the right(s) granted v. the rights restricted by a specific law to determine if the law is justifiable and fair - this weighing and balancing involves determining if there a compelling public interest or purpose for the law that justifies granting certain rights while restricting other rights;
• example: highway speed limit laws protect everyone (drivers, passengers, and pedestrians), but also restrict the freedom of drivers to drive at a speed of their choice - on balance, the restriction is easily justified as there is an important purpose in protecting drivers, passengers, and pedestrians
• example: laws that prohibit alcohol consumption/purchase by minors grant rights to those 21 years and older, and restr ...
1Legal Issues for Managers 2007GIRLecture 9(Week 10)M.docxfelicidaddinwoodie
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Legal Issues for Managers: 2007GIR
Lecture 9
(Week 10)
Module 3 (Part 2):
The Law of Business Associations
Law of Agency &
Law of Partnership
1
Administration
Ensure that you check the announcements on [email protected] ([email protected]) and your marks in My Marks.
You should now have your Mid-Semester Exam marks available in My Marks. If you want genuine feedback (not simply checking your grade as they have been scanned), you can see your exam papers this week during the times provided on [email protected] course site. A time will also be made available for the Deferred Mid-Semester Exams when we have received them back from scanning.
A notice about the time, date & place of the Deferred Mid-Semester Exam is now available on the course website.
IF you want to do well on the FINAL EXAM, in addition to making a genuine effort on the ASSIGNMENT continue practising your ILACs before you attend your seminars, add a few notes to your answers, download the seminar slides and try to attempt the answer again on your own. If you did not have a satisfactory answer, see your tutor in consultation and bring along your ILAC homework attempts. This is the most effective way to prepare for the Final Exam.
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2
Recap of Last Week
The Law of Companies/Corporations
Summary
The essential characteristics of a ‘company’ and why they are important.
The different types of business structures available, in particular companies, and when can they be used to meet the needs of business & society.
The main duties imposed upon the directors of a company.
The concepts of insolvency and insider trading.
The way companies can be wound-up.
Quick Question:
The Corporations Act 2001 (Cth) prohibits trading in shares with the advantage of information that is not publicly available. This offence is also known as …………………………… and is prohibited by section ..........
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3
Business Structures
BUSINESS
STRUCTURES
Sole
Trader
Partnership
Joint
Venture
Incorporated
Associations
Trust
Company
Proprietary
Company
Public
Company
Large
Small
4
Seek the advice of a good accountant & lawyer when considering what form of business structure you may want to set-up. The main consideration should be liability – Not taxation. Thus, this message applies to today’s lecture and next weeks! Strategic planning is the key to business success.
44% of businesses fail in the first 3 years
Failing to plan, is planning to fail!
See separate mind-map on the types of companies in those lecture slides when available
http://www.business.gov.au/business- ...
Ethics In Negotiations Article - Landman Mag Jan-Feb 2016Greg Jessup
The document discusses the ethical responsibilities and obligations of landmen in their negotiations and dealings with clients, employers, and other parties in the oil and gas industry. It notes that landmen have a duty to promote honesty and fairness while representing their clients' interests and maintaining competition. The document examines scenarios where a landman may have conflicting obligations to multiple clients, and how negotiating in good faith with transparency can help balance these duties. It also provides guidance on landmen's responsibilities during negotiations, including fully disclosing parties' rights and avoiding conflicts of interest.
This document provides an overview of commercial law and related topics. It defines commercial law as the set of laws related to trade and sales, including contract law, property law, business regulations, corporate law, intellectual property law, and tax law. It also discusses the key elements of a valid contract, common legal issues in commercial law such as contract violations, and the components of an effective internal control system.
Similar to monash research seminar series 24.05.10 (20)
1. ‘Unconscionable Conduct and Good Faith in the Small Business, Leasing, and Franchising Sectors – The Way Ahead’ By Professor Bryan Horrigan Report Co-Author, Strengthening Statutory Unconscionable Conduct and the Franchising Code of Conduct, Australian Treasury, 2010 Louis Waller Chair of Law, Monash Law Faculty Associate Dean (Research), Monash Law Faculty Consultant, Allens Arthur Robinson Author, Corporate Social Responsibility in the 21st Century (Edward Elgar, 2010) 1
2. Overview Lead-up to the Panel’s inquiry and appointment Focus and conduct of inquiry Outcomes of inquiry Government’s response Flow-on regulatory impact and work Lessons for lawyers Caveats up front 2
3. Terms of Reference Clarifying role v ‘clean slate’ review of statutory unconscionable conduct (ie unfinished business from previous governmental inquiries) Whether ‘a statement of principles concerning unconscionable conduct’ or ‘a list of examples that all parties agree constitute unconscionable conduct’ should be included in the TPA Whether Franchising Code of Conduct needs anything more to address five identified and potentially problematic franchising behaviours 3
4. Unconscionability Relates to … Various equitable (and some common law) causes of action and bases for relief Statutory unconscionability under Trade Practices Act Statutory unconscionability under Fair Trading Acts Statutory unconscionability in financial services under ASIC Act Unconscionable financial services licensee conduct under Corporations Act Unjust contracts laws (eg some Fair Trading Acts, NSW Contracts Review Act) Related consumer credit laws Industry codes (eg Banking/Franchising Codes) State retail/commercial leasing laws 4
13. Unconscionability Under TPA s51AA & ASICA s12CA “A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.” “A corporation must not, in trade or commerce, engage in conduct in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.” 6
14. FSR Legislation & Unconscionability (s991A(1) CA) “A financial services licensee must not, in or in relation to the provision of a financial service, engage in conduct that is, in all the circumstances, unconscionable.”
15. Unconscionability Under TPA s51AB & ASICA s12CB TPA: “A corporation shall not, in trade or commerce, in connection with the supply [but not supply for purposes of re-supply or using up / transforming in trade or commerce] .. of goods or services [of a kind ordinarily acquired for personal, domestic, or household use or consumption] engage in conduct that is, in all the circumstances, unconscionable” ASICA: supply of financial services
16. Unconscionability Under TPA s51AC (cf s12CC ASIC Act) “A person/corp must not, in trade or commerce, in connection with (a) the supply .. of goods or services to a corp/person (other than a listed corporation) [for purposes of trade or commerce] or (b) the acquisition or .. goods or services from a corp/person (other than a listed corporation) [for purposes of trade or commerce], engage in conduct that is, in all the circumstances, unconscionable.” (s51AC TPA) ASICA: supply of financial services
17. Unconscionability under TPA s51AB & AC & s12CB & CC ASIC Act – indicators Parties’ relative bargaining strengths Whether conditions extend beyond what is reasonably necessary to protect legitimate interests Understanding of the documents Any undue influence, pressure, or unfair tactics by a party or someone acting on their behalf Comparative prices and terms for availability of goods and services elsewhere Sections 51AC & s12CC only: Consistent with treatment of similar parties/transactions Compliance with any relevant industry codes Unreasonable failure to disclose (i) intended conduct which might affect the other party’s interests and (ii) risks to the other party arising from that conduct which reasonably they might not foresee Willingness to negotiate terms and conditions Whether parties act in good faith Whether contractual right exists to vary unilaterally a term or condition of a contract
21. Others (egBridgewater v Leahy)[4] Unconscionability as a direct ground of relief in its own right, unmediated by conventional doctrines (egLenah Game Meats v ABC) 11
22. Full Fed Ct in ACCC v Samton Holdings (2002) Unconscientious exploitation of a party’s special disadvantage (egAmadio) Defective understanding, relationship of influence, and absence of independent explanation (egGarcia) Unconscionable departure from previous representation (egestoppel – Verwayen, Waltons Stores v Maher) Relief against forfeiture and penalty (egLegione v Hateley and Stern v McArthur) Rescind contracts for unilateral mistake (egTaylor v Johnson) 12
23. Important High Court Instruction Affecting Statutory and Non-Statutory Interpretation Farah Constructions v Say-Dee [2007] HCA 22 at [135]: ‘Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.’ 13
24. ACCC v CG Berbatis Holdings Pty Ltd [2000] FCA 1376 The [tenants] suffered what might be called a ‘situational’ as distinct from a ‘constitutional’ disadvantage. That is to say it did not stem from any inherent infirmity or weakness or deficiency. It arose out of the intersection of the legal and commercial circumstances in which they found themselves. That disadvantage, not being constitutional in character, was not able to be mitigated by the fact of legal representation which they had available to them at all material times.
25. Unconscionable Conduct Senate Economics Committee outcomes Government’s response Implications of TPA reforms for ASIC Act and cognate state laws on statutory unconscionable conduct Pros and cons of legislated examples Different kinds of principles Pros and cons of different kinds of principles 15
26. Recommendation on Examples ‘In many circumstances, statutory unconscionable conduct can be difficult for stakeholders to understand and for the courts to apply, which contributes to a lack of certainty and confidence surrounding the effect of the provisions.’ ‘A list of examples will not improve understanding or implementation of the provisions.’ Scope for the ACCC, ASIC, and state regulators under a single national law on statutory unconscionable conduct (ie ACL) to include examples and other guidance. 16
27. Recommendation on Principles ‘Interpretative principles, as an aid to interpretation of the provisions, would assist the courts in interpreting the provisions, stakeholders in understanding them, and regulators in enforcing them.’ ‘The principles should recognise that section 51AC (and, arguably, section 51AB) of the TPA and equivalent provisions of the ASIC Act are intended to go beyond the scope of the equitable and common law doctrines of unconscionability, and are not confined by them.’ 17
28. Recommendation of Principles of Interpretation Sections 51AB and 51AC go beyond common law and equity AND not limited by them Apply to terms and progress of a contract – ie not just what happens at execution Apply to systems/patterns of business behaviour – ie not just particular incidents Amadio-like special disadvantage not needed to access the statutory provisions/remedies 18
29. Other Unconscionability-Related Reforms Harmonisation of sections 51AB and 51Ac to be considered by Government Given single national ACL + increased regulatory enforcement powers, need for uniform national regulatory guidance by ACCC, ASIC, and state regulators on statutory unconscionable conduct (similar to proposals under unfair contracts regime) Nature of the regulatory guidance on unconscionable conduct Regulators to bring more test cases on the interpretative principles and other reforms Non-government test case support/encouragement too (see later advocacy, pro bono, and research recommendations) 19
30. Five Identified Franchising Behaviours Unilateral variation (eg via operations manual) Unforeseen capital expenditure End-of-term changes/arrangements Attribution of legal costs Confidentiality agreements 20
31. Getting the Right Balance Availability of evidence/expertise Availability of sample clauses Connection between identified behaviours Spectrum of cost recovery circumstances Spectrum of regulatory options: Absolute ban Contingent ban Compensation/consultation right Structure for opening/closing relationships Benefits/limits of enhanced disclosure 21
32. Other Franchising Matters Additional ‘Plain English’ up front disclosure document Treatment of ‘Good Faith’ ACCC’s function as regulator v mediator Need for Cth/State governmental attention to wider issue of mechanisms for early dispute resolution intervention Attribution of legal costs to be examined more extensively within that review process Government and ACCC to work with franchising sector to develop better education, training, and research on franchising 22
33. Research, Advocacy, and Pro Bono Work Pro bono legal work to support further research, advocacy, and test cases for small business on both statutory unconscionability and franchising Alignment with existing government policies and processes on pro bono work by lawyers and consumer research and advocacy Evidence-based research needed to inform next review of these reforms and all other recent TPA/FCC changes Allow period of 3-5 years for current changes (including those arising from the Panel’s Report) to take effect 23
34. Some Lessons for Lawyers in All Arms of the Profession Solutions to most major regulatory problems require more than doctrinal legal skills and knowledge Significance of representative bodies as stakeholders in legal regulatory reform process and assistance to them Realities and sophistication of the policy and reform development process Importance of legal submissions to public inquiries: Influencing the ‘rules of the game’ for big/small business Practical legal expertise beyond governmental expertise Insights into problems/traps beyond governmental expertise Meaningful examples of clauses/practices/safeguards Connections to CSR, pro bono, government procurement, business regulation impact, and other ‘business case’ issues for lawyers as client services providers Non-submission and post-submission complacency traps Non-submission avenues of influence Significance of legal/public commentary/analysis Insights on the internal governmental processes for major reforms Gap between research needs of one arm of government and what other arms of government recognise in research funding/rankings 24
35. Future Regulatory Guidance, Advice, and ‘Test Case’ Litigation Flow-through impact of everything in the context of a changed regulatory landscape: Pre-report governmental decisions to reform statutory unconscionable conduct and FCC One single national law on statutory unconscionable conduct Enhanced regulatory powers (eg infringement notices) Recent ACCC/ASIC court wins and renewed impetus for test cases Ongoing test cases on scope of statutory unconscionability in other contexts (eg share margin calls – Goodridge case; excessive bank charges as penalties: current litigation) Framing regulatory guidance beyond decided cases Potential harmonisation and impact of business/consumer provisions on unconscionable conduct Further judicial rationalisation of unconscionability doctrines (flagged by French J in Berbatis) Academic/judicial development of framework for statutory unconscionable conduct transcending existing non-statutory bases for relief Unresolved legal questions for ‘test case’ advice/litigation about: Spread of unconscionability doctrines across ss51AA-51AC Statutory extensions beyond those doctrines Application of ‘special disadvantage’ to B2B contexts (egBell Group v Westpac and Optus v Telstra litigation) Existence, scope, and application of ‘situational’ forms of special disadvantage Meaning, scope, and application of good faith as an indicator of statutory unconscionability Interaction with ongoing academic/judicial disputes about the content and tests for good faith under contract law 25
36. Good Faith Issues Twin tracks in commercial matters – contract + TPA Content of good faith? Matter of implication of terms or construction through doctrine? Tests for good faith? Current judicial position on good faith Related obligations (eg cooperation, best endeavours, not hinder etc) Relevant clauses (eg entire agreement, negation of implied terms, sole discretion, etc) Negotiating and drafting options on good faith 26