Construction Contracts: Drafting Issues, Spotting Red Flags and Allocating Risk, Part 2 - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: October 26, 2022
Accreditation Expiration Date: May 3, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Construction contracts are among the most difficult agreements to draft or review and negotiate. At every stage, building is fraught with substantial risk – timely regulatory approvals, cost containment and price certainty, financing contingencies, building deadlines, and a host of other risks. If these risks materialize, as is common, the bargained for exchange among the parties and their expectations are radically unsettled. Construction contracts are a careful allocation of risks, a compromise between flexibility and price/cost certainty, and establish procedures for resolving disputes short of costly litigation. This program will provide you with a practical guide to drafting the most important provisions of construction contracts.

Day 2:
  • Insurance and indemnification provisions of construction contracts
  • Role of subcontractors and mechanics and materialmen liens
  • Anticipating disputes between property owners and builders, and building in cost-effective dispute resolution
  • Role and limitations of different type of damages


Speaker:

John Miller is the principal of John R. Miller, PLLC in the Charlotte, North Carolina and was for 39 years a partner with Robinson, Bradshaw & Hinson, P.A. His practice encompasses corporate and securities law, mergers and acquisitions, banking and finance, and construction law. He was selected by his peers for inclusion in "The Best Lawyers in America" and for inclusion in Business North Carolina Magazine's "Legal Elite" as one of the top business lawyers in North Carolina. He received his A.B. from Duke University and his J.D., with distinction, from Duke University School of Law.

Construction Contracts: Drafting Issues, Spotting Red Flags and Allocating Risk, Part 1 - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: October 25, 2022
Accreditation Expiration Date: May 3, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Construction contracts are among the most difficult agreements to draft or review and negotiate. At every stage, building is fraught with substantial risk – timely regulatory approvals, cost containment and price certainty, financing contingencies, building deadlines, and a host of other risks. If these risks materialize, as is common, the bargained for exchange among the parties and their expectations are radically unsettled. Construction contracts are a careful allocation of risks, a compromise between flexibility and price/cost certainty, and establish procedures for resolving disputes short of costly litigation. This program will provide you with a practical guide to drafting the most important provisions of construction contracts.

Day 1:
  • Reviewing and drafting essential provisions of construction contracts
  • Use and common mistakes in using AIA contacts in negotiations with builders
  • Defining the scope of a project and planning for modifications
  • How fees and costs are structured – and allocating risk of modification
  • Tying performance standards and timelines to payments
 

Speaker:

John Miller is the principal of John R. Miller, PLLC in the Charlotte, North Carolina and was for 39 years a partner with Robinson, Bradshaw & Hinson, P.A. His practice encompasses corporate and securities law, mergers and acquisitions, banking and finance, and construction law. He was selected by his peers for inclusion in "The Best Lawyers in America" and for inclusion in Business North Carolina Magazine's "Legal Elite" as one of the top business lawyers in North Carolina. He received his A.B. from Duke University and his J.D., with distinction, from Duke University School of Law.

Releasing Employees & Drafting Separation Agreements - A National Perspective

Presented by the ISBA


0.75 hour MCLE credit


Original Program Date: October 21, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 3, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


When an employee leaves a company voluntarily or involuntarily employers often fear the worst. Departing employees may have had access to very important and confidential information of the employer – client/customer lists, vendor information, pricing information. How can it protected? Employees may allege they are due additional salary, bonuses or commissions. Might they sue? There may have been issues involving suspected or alleged harassment or discrimination. What’s the risk of liability? Employees might be disgruntled. Can anything be done to prevent disparagement of the company? Drafting separation agreements are complex and as important as employment agreements. This program will provide you with a practical guide to drafting employee separation agreements.
  • Salary and benefit issues, severance payments, and payments tied to future performance
  • Identifying points of potential liability in both voluntary and involuntary separations
  • Drafting enforceable waivers of liability – scope, length and payment issues
  • Post-separation commission issues for sales employees
  • Preserving the confidentiality of important business information post-separation
  • Non-disparagement, non-competition and non-solicitation provisions
  • Mediation and other dispute resolution provisions

 
Speaker:

Jerrold F. Goldberg is a partner in the New York City office of Greenburg Traurig, LLP, where he has more than 35 years’ experience practicing in virtually all aspects of labor and employment. His expertise includes employee leave under federal and state law, traditional labor/union-management issues, employment discrimination, executive employment, severance agreements and wage and hour laws. He represents clients before the EEOC, the FRLB, and federal and state courts. Mr. Goldberg received his B.S. from Cornell University and his J.D. from New York University School of Law.


Earnouts: Taking a Wait and See Approach to Valuation of Closely Held Companies - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: October 18, 2022
Accreditation Expiration Date: May 3, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


The most highly negotiated provision of most transactions is price. Sellers want to maximize the value of the deal, putting the most optimistic spin historical and forward-looking projections. Sellers take a more skeptical view, questioning the sustainability of growth and the accuracy of forecasts. When differences over valuation cannotbe bridged, the parties may use an earnout, which allows them to both take a wait-and-see approach and still close the transaction. Earnouts generally involve a current payment from buyer to seller together with ongoing payments to the seller if the company performs as the seller projected. But there are many drafting and operational traps when using earnouts. This program will provide you with a practical guide to structuring and drafting earnouts to later disputes and litigation.
  • Most highly negotiated and litigated provisions in earnout agreements
  • Post-closing operations – control by buyer, but informational access to seller
  • Defining key metrics – objective, measurable and potential traps
  • Relationship of earnouts to senior debt and other preferential returns
  • Debt issues and how it impacts financial results – and post-closing payments
  • How earnouts are different than escrow and holdbacks


Speakers:

Frank Ciatto is a partner in the Washington, D.C. office of Venable, LLP, where he has 20 years’ experience advising clients on mergers and acquisitions, limited liability companies, tax and accounting issues, and corporate finance transactions. He is a leader of his firm’s private equity and hedge fund groups and a member of the Mergers & Acquisitions Subcommittee of the ABA Business Law Section. He is a Certified Public Accountant and earlier in his career worked at what is now PricewaterhouseCoopers in New York. Mr. Ciatto earned his B.A., cum laude, at Georgetown University and his J.D. from Georgetown University Law Center.

Daniel G. Straga is an attorney in the Washington, D.C. office of Venable, LLP, where he counsels companies on a wide variety of corporate and business matters across a range of industries. He advises clients on mergers and acquisitions, capital raising, venture capital, and governance matters. Mr. Straga earned his J.D. from the George Washington University Law School and his B.A. from the University of Delaware.

James DePaoli is an attorney in the Washington, D.C. office of Venable, LLP, where his practice focuses on corporate and commercial matters. He represents clients in the acquisition and disposition of assets and securities, mergers, and other business combinations and reorganizations. Mr. Paoli earned his B.S/B.A., magna cum laude, from Georgetown University and his J.D. from Duke University School of Law.


Subtenants in Commercial Leasing: How to Protect Your Client - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: October 17, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 3, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Subleases are by their very nature filled with substantial risk. A sub-tenant agrees to take space – office, retail, or industrial – from a sub-landlord, pay the sub-landlord rent, and perform certain services. But without between the sub-tenant and the senior landlord, the sub-tenant has no rights to assert against the senior landlord even though the sub-tenant’s use of the space may depend on the actions of the senior landlord. This sub-tenant is also at substantial risk of losing the space if either the senior or sub-landlord goes bankrupt. The relationship of these parties is highly complex. This program will provide you with a practical guide protecting subtenants in leasing.
  • Counseling sub-tenant clients about the range of risks in subleases
  • How to read master leases to spot red flags for tenants
  • Types of subleases – what works for bigger/smaller clients and spaces?
  • Identifying master lease’s control of subleasing and sublease terms
  • Master lease money provisions, use restrictions, attornment provisions, and termination
  • Determining whether sublease risks outweigh the benefits


Speaker:

Anthony Licata is a partner in the Chicago office of Taft Stettinius & Hollister LLP, where he formerly chaired the firm’s real estate practice. He has an extensive practice focusing on major commercial real estate transactions, including finance, development, leasing, and land use. He formerly served as an adjunct professor at the Kellogg Graduate School of Management at Northwestern University and at the Illinois Institute of Technology. Mr. Licata received his B.S., summa cum laude, from MacMurray College and his J.D., cum laude, from Harvard Law School.

Income and Fiduciary Tax Issues for Trust and Estate Planners, Part 2 - A National Perspective

Presented by the ISBA


1.0 hour MCLE credit


Original Program Date: October 12, 2022
Accreditation Expiration Date: May 3, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Understanding fiduciary income taxation – the taxation of grantor and non-grantor trusts, complex and simple trusts – is essential to trust planning. It impacts the type of trust chosen, how it’s structured and administered. Recently changes to federal tax law have added to the complexity of fiduciary income taxation. The tax treatment of trust income and accounting for distributions and expenses varies depending on the type of trust involved and how “Distributable Net Income” is allocated. This program will provide you with a real-world guide to the essential rules, timeframes, planning techniques and traps of the taxation of trusts.


Day 2:
  • Practical income allocation for simple, complex and grantor trusts
  • Specific allocation rules for DNI – Tier System, Separate Share Rule, 65 Day Rule, specific bequests
  • Charitable giving – tax treatment and practical impact
  • Treatment of depreciation, administrative expenses, and allocation to income
  • Trust terminations – capital loss carryover and excess deductions


Speaker:

Jeremiah W. Doyle, IV is senior vice president in the Boston office of BNY Mellon Wealth Management, where he provides integrated wealth management advice to high net worth individuals on holding, managing and transferring wealth in a tax-efficient manner. He is the editor and co-author of “Preparing Fiduciary Income Tax Returns,” a contributing author of Preparing Estate Tax Returns, and a contributing author of “Understanding and Using Trusts,” all published by Massachusetts Continuing Legal Education. Mr. Doyle received his B.S. from Providence College, his J.D. form Hamline University Law School, and his LL.M. in banking from Boston University Law School.

Income and Fiduciary Tax Issues for Trust and Estate Planners, Part 1 - A National Perspective

Presented by the ISBA


0.75 hour MCLE credit


Original Program Date: October 11, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 3, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Understanding fiduciary income taxation – the taxation of grantor and non-grantor trusts, complex and simple trusts – is essential to trust planning. It impacts the type of trust chosen, how it’s structured and administered. Recently changes to federal tax law have added to the complexity of fiduciary income taxation. The tax treatment of trust income and accounting for distributions and expenses varies depending on the type of trust involved and how “Distributable Net Income” is allocated. This program will provide you with a real-world guide to the essential rules, timeframes, planning techniques and traps of the taxation of trusts.


Day 1:
  • Fiduciary income taxation framework and rules for estate and trust planners
  • How fiduciary and income tax planning differ from each other
  • Planning for fiduciary taxation v. planning for individual and corporate tax purposes
  • Types of trusts – simple, complex, grantor – and differing tax rules for each
  • Treatment of “Distributable Net Income”
  • Understanding “Trust Accounting Income,” and impact of Prudent Investor Rule


Speaker:

Jeremiah W. Doyle, IV is senior vice president in the Boston office of BNY Mellon Wealth Management, where he provides integrated wealth management advice to high net worth individuals on holding, managing and transferring wealth in a tax-efficient manner. He is the editor and co-author of “Preparing Fiduciary Income Tax Returns,” a contributing author of Preparing Estate Tax Returns, and a contributing author of “Understanding and Using Trusts,” all published by Massachusetts Continuing Legal Education. Mr. Doyle received his B.S. from Providence College, his J.D. form Hamline University Law School, and his LL.M. in banking from Boston University Law School.

Planning with Single Member LLCs, Part 2 - A National Perspective

Presented by the ISBA


0.75 hour MCLE credit


Original Program Date: October 5, 2022
Accreditation Expiration Date: ­­­­­­­­­­­­­­­­­­­­­­­­­May 3, 2025 (You must certify completion and save your certificate before this date to get MCLE credit)


Single Member LLCs are among the most flexible vehicles in business and real estate transactions. Creatures of state law, they are “nothing” for federal income tax purposes. They can be used to minimize tax and liability with maximum organizational flexibility. They may be used in conjunction with S Corps and general partnerships in business and real estate transactions. But there are also substantial limits and traps. Among the traps is that their limited liability can be pierced more easily through equitable doctrines to personal liability. There are also many potential tax traps. This program will provide you with a real-world guide to organizing and using Single Member LLCs in transactions.


Day 2:
  • Changes in tax classification of Single Member LLCs
  • Single Member LLCs and general partnerships – which may own which?
  • Piercing the veil of a Single Member LLC
  • Compensation issues and traps
  • Use of charging orders against Single Member LLC distributions
  • Use of SMLCCs in real estate transactions, including Like-Kind Exchanges
  • State tax and excise tax overview

Speakers:

Paul Kaplun is a partner in the Washington, D.C. office of Venable, LLP where he has an extensive corporate and business planning practice, and provides advisory services to emerging growth companies and entrepreneurs in a variety of industries. He formerly served as an Adjunct Professor of Law at Georgetown University Law Center, where he taught business planning. Before entering private practice, he was a Certified Public Accountant with a national accounting firm, specializing in corporate and individual income tax planning and compliance. Mr. Kaplun received his B.S.B.A., magna cum laude, from Georgetown University and J.D. from Georgetown University Law Center.

Elizabeth Fialkowski Stieff is an attorney in the Baltimore, Maryland office of Venable, LLP, where her practice focuses on corporate advisory matters, including mergers, acquisitions, and joint ventures, as well as tax controversies. Prior to joining Venable, she was an associate in corporate and securities practice at a national law firm, where she advised clients on a variety of federal and state tax issues. Before entering private practice, she served as a judicial clerk to Judge L. Paige Marvel of the United States Tax Court. Ms. Stieff earned her B.A. from John Hopkins University and her J.D. and LL.M. from Georgetown University Law Center.

When Something’s Not Right

Posted on April 12, 2023 by Celeste Antoinette Niemann

A client calls and says they need your help with a complaint that has been filed against an employee. Or, maybe it’s one of your own employees who is in the hot seat. Sometimes, employees screw up and lawyers are asked to conduct investigations on behalf of clients or give the third degree to someone in their own office.