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April 2012

April 2012
From the Colorado Bar Association Business Law Section
Ed Naylor, Editor
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In this issue...
The JOBS Act for Business Lawyers
By Herrick K. Lidstone, Jr., Burns, Figa & Will, P.C.

On April 5, 2012, President Obama signed the “Jumpstart Our Business Startups Act” (H.R. 3606; the “JOBS Act”), a bipartisan effort to ease burdens on capital formation by start-up companies. Much attention has been paid to the crowdfunding provisions of Title III of the JOBS Act and the potential it creates for fraud. (See Chuck Jaffe in the March 29, 2012, online version of the Wall Street Journal “Market Watch” entitled: “JOBS Act benefits financial criminals” and DU Professor Jay Brown’s posts in starting with his March 28, 2012 post entitled “The JOBS Act and the Capital Raising Process (Crowdfunding and the Consequence of Gambling.)”) The good news for business lawyers is that there is significantly more to the JOBS Act than crowdfunding. Here are the changes enacted (or to be enacted) by the JOBS Act in the order of importance, at least in my opinion.

Title II – General Solicitation Under Rule 506; Limited Broker-Dealer Exemption
(not effective immediately; dependent on SEC rulemaking)

For business lawyers and their clients, perhaps the most significant portion of the JOBS Act is found in Title II, “Access to Capital for Job Creators.” Section 201(a)(1) requires the Securities and Exchange Commission (SEC) to revise Rule 502(c) of Regulation D to permit general solicitation in Rule 506 offerings provided that the purchasers of the securities are accredited investors. The rules to be adopted by the SEC will require the issuer of the securities offered “to take reasonable steps to verify that such purchasers of the securities are accredited investors” using such methods as the SEC may determine. Some commentators have suggested that mere reliance on representations from the purchaser may not be sufficient, but the amount of issuer due diligence should be set forth in the SEC’s rules. Similar changes will be made to Rule 144A, a trading exemption for qualified institutional buyers. § 201(a)(2) of the JOBS Act).

To provide some consistency in interpretation, Sections 201(1)(b) and (c) of the JOBS Act also amend Sections 4 and 5 of the Securities Act of 1933 (the “1933 Act”).

The amendment to Section 5 provides that offerings under Rule 506 conducted with general solicitation will not be deemed to be a public offering for the purposes of the 1933 Act.

The amendment to Section 4 is more substantive. It provides that any person assisting an issuer with a Rule 506 offering (whether or not with general solicitation) will not be subject to registration as a broker or dealer solely because:

(i) That person provides an online (or other) platform that permits offers, sales, and negotiation of Rule 506 securities;
(ii) That person co-invests in Rule 506 securities; or
(iii) That person provides “ancillary services” in connection with a Rule 506 offering.

To be eligible for the broker-dealer exemption, the person (including any associated person) must not receive any compensation in connection with the purchase or sale of such securities, must not possess customer funds or securities, and must not be subject to the statutory disqualification defined in § 3(a)(39) of the 1934 Act (the “bad boy disqualification”). “Ancillary services” means due diligence services and document preparation services, with certain limitations.

The importance of the changes to Rule 506 is to ensure that the general solicitation provisions also pre-empt state law that may be to the contrary. 1933 Act § 18(b)(4) provides that a “covered security” includes any security issued pursuant to a rule adopted under 1933 Act § 4(2) (now § 4(a)(2)). That includes only Rule 506. As a covered security, the application of state law is limited. When effective, these general solicitation provisions are likely to significantly change the method of seeking investors by hedge funds, private equity funds and venture capital funds from the “one on one” method that is in place today.

These provisions will be defined further by SEC rulemaking to occur within 90 days (that is, before July 5, 2012).

Title I – Emerging Growth Companies
(Effective immediately without SEC rulemaking)

Title I of the JOBS Act is entitled Reopening American Capital Markets to Emerging Growth Companies. Title I includes amendments to the 1933 Act and to the Securities Exchange Act of 1934 (the ’1934 Act”), starting with a definition of an “emerging growth company” in 1933 Act § 2(a)(19) and 1934 Act § 3(a)(80). Under these definitions, an emerging growth company has annual gross revenues of less than $1 billion (to be indexed for inflation every five years). An emerging growth company continues to be an emerging growth company until the earlier of:

Section 102(a) of the JOBS Act goes on to exempt emerging growth companies from the requirements in 1934 Act § 14A(e) for companies with a class of securities registered under the 1934 Act to hold shareholder votes typically referred to as “say on pay,” “say when on pay,” and “say on golden parachutes.”

Several sections of Title I of the JOBS Act are colloquially named the “IPO on-ramp,” and are intended to reverse the decrease in domestic initial public offerings (IPOs) that have occurred over the last decade since the enactment of the Sarbanes-Oxley Act of 2002 (SarbOx). Section 106 of the JOBS Act permits emerging growth companies to submit 1933 Act registration statements on a confidential basis provided that the registration statement and all amendments are publicly filed at least 21 days before the issuer conducts any road show. This is intended to allow the emerging growth company to explore the IPO option without disclosing to the market the fact that it is seeking to go public or disclosing the information contained in its registration statement until the company is ready to conduct a roadshow. This will also allow the company to work through the registration statement process with the SEC staff on a “confidential, non-public” basis, although that may not lead to better public disclosure, since this provision could result in hidden disclosure initially made in a filing with the SEC but not thereafter made publicly. 1933 Act Rule 406 and 1934 Act Rule 24b-2 provide for confidential treatment but require paper submission. Under the SEC Division of Corporation Finance’s April 5, 2012 policy statement (available here), until an electronic submission system has been created, eligible emerging growth companies may submit draft registration statements for confidential treatment in a text-searchable PDF on CD or DVD, or in paper.

Section 102(b)(1) of the JOBS Act amends 1933 Act § 7(a) to add a provision exempting emerging growth companies from presenting more than two years of audited financial statements in a 1933 Act registration statement or selected financial information including more than two years of numbers. This provision also exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a 1933 Act registration statement declared effective or do not have a class of securities registered under the 1934 Act) are required to comply with the new or revised financial accounting standard.

The 1934 Act amendments also limit the disclosure requirements for emerging growth companies under Item 303 (management’s discussion and analysis) and define an emerging growth company to be within the “smaller reporting company” class of issuers for the purpose of the 1934 Act reporting requirements under Item 402 of Regulation S-K (executive compensation) – regardless of the market cap for the emerging growth company. (“Smaller reporting companies” are defined as those with a market value of voting and non-voting common equity held by non-affiliates of less than $75 million.)

Section 103 of the JOBS Act amends § 404(b) of SarbOx (codified at 15 U.S.C. § 7262(b)) to exempt emerging growth companies from the requirement that auditors attest to the audit client’s internal controls over financial reporting. Smaller reporting companies are also exempt from this requirement, but by SEC rule, not by statute.

Section 104 of the JOBS Act provides that the auditor rotation requirement imposed by § 103(a)(3) of SarbOx does not apply to emerging growth companies, although these rules do apply to smaller reporting companies. Furthermore, any new rules adopted by the Public Company Accounting Oversight Board (PCAOB) will not apply to emerging growth companies unless and until the SEC determines that the new rules are “necessary or appropriate in the public interest.”

Among the more significant changes applicable to emerging growth companies, is a change designed to facilitate an emerging growth company’s ability to test the market before announcing a registered offering. Section 105(a) amends 1933 Act § 2(a)(3) to permit broker-dealers to publish research reports about emerging growth companies even if the broker-dealer is participating in or will participate in a registered offering for the emerging growth company. Under existing 1933 Act Rule 137, such a publication would only be permitted if the broker-dealer publishing the report were not participating in the offering and receives no direct or indirect compensation from the issuer or any broker-dealer participating in the offering. Rule 137 will not, therefore, apply to emerging growth companies. Section 105(b) of the JOBS Act amends 1934 Act § 15D similarly, preventing the SEC or FINRA from adopting any rules contrary to the Section 105(a) amendments. Section 105(d) similarly prevents the SEC or FINRA from adopting rules regulating broker-dealer communications relating to an emerging growth company after the offering period.

Section 105(c) of the JOBS Act adds a new subsection (d) to 1933 Act § 5 which permits an emerging growth company to engage in oral and written communications with qualified institutional investors and institutions (but not individuals) that are accredited investors during what is usually the “quiet period” before and after filing the registration statement but before effectiveness.

Section 108 of the JOBS Act requires the SEC to review the provisions of Regulation S-K to determine how to modernize and simplify the registration requirements for emerging growth companies. This review must result in a report to Congress within 180 days (October 2, 2012). The review may also result in changes to Regulation S-K for other companies as well.

Notwithstanding the exemptions provided to emerging growth companies in the JOBS Act, Section 107 gives emerging growth companies the right to opt out of the JOBS Act provisions and into the requirements applicable to companies that are not emerging growth companies. As noted above, Title I of the JOBS Act is effective immediately, but the provisions do not fit within existing SEC rules. To assist in the application of Title I, on April 16, 2012, the SEC issued seventeen FAQs (available here) to interpret a number of issues relating to emerging growth companies under the JOBS Act.

Title IV – Small Company Capital Formation
(Not effective immediately; dependent on SEC rulemaking)

SEC Regulation A (adopted under 1933 Act § 3(b)) has been on the books for years, but has been little used since the late 1980s. Section 401 of the JOBS Act requires the SEC to adopt rules for a new § 3(b) exemption (referred to in some commentary as Regulation A+) for sales of up to $50 million of securities in any twelve month period (Regulation A is limited to $5 million). Similar to 1933 Act Rule 254 under Regulation A, the JOBS Act amendment specifically permits issuers utilizing this new exemption to “test the waters” before filing any offering statement and making a public offering of the underlying securities.

Perhaps the principal deficiency of Regulation A offerings was that they were not exempt from state blue sky regulation since they were not a “covered security” as defined in 1933 Act § 18(b)(4). Section 401(b) of the JOBS Act resolves this issue by defining securities issued under this exemption (1933 Act § 3(b)(2)) to be “covered securities.” This may make this provision more attractive.

Titles V and VI – Shareholder Thresholds for Registration
(In material part effective immediately)

Section 501 of the JOBS Act amends 1934 Act § 12(g)(1)(A) to require 1934 Act registration under § 12(g) when an issuer has assets of more than $10 million (formerly $1 million) and a class of security held of record by more than 2,000 persons or 500 persons who are not accredited investors (formerly 500 persons without regard to accredited investor status). Section 502 of the JOBS Act excludes from the shareholder calculation employees who received shares pursuant to an employee compensation plan that was exempt from registration under the 1933 Act. This could include stock issued pursuant to a variety of exemptions, including Rules 506 and 701.

A significant issue that needs to be addressed in SEC rulemaking is how an issuer can determine whether existing shareholders, who may have been accredited at the time they acquired the shares, remain accredited investors. Where transferability restrictions have been lifted under SEC Rule 144, an issuer may not have control over to whom the shares are transferred and will need to continually monitor its shareholder base – perhaps an impossible job.

Similarly, Section 601 increases the registration threshold for banks and bank holding companies from 500 to 2,000 shareholders of record without regard to whether the shareholders are accredited investors. The threshold for terminating 1934 Act registration for banks and bank holding companies (going dark) was increased from 300 shareholders to 1,200 shareholders of record.

The balance of Title V requires SEC rulemaking to redefine the term “held of record” under Rule 12g5-1 and study whether new enforcement provisions are necessary.

Title III – Crowdfunding
(Not effective immediately; dependent on SEC rulemaking)

Title III adds § 4(a)(6) and § 4A to the 1933 Act to establish a crowdfunding exemption from registration. Because the effectiveness of this exemption is dependent on SEC rulemaking (which must be accomplished within 270 days (January 2, 2013), this is a topic for a future article.

The SEC’s Concerns and Potential Impact of Rulemaking

The SEC’s opposition to, or “concern” over, many provisions within the JOBS Act is no secret. When the Act becomes law, will this opposition effectively lead the SEC to kill provisions of the JOBS Act through the rulemaking process? In particular Title II (General Solicitation Under Rule 506; Limited Broker-Dealer Exemption) and Title III (Crowdfunding) are dependent on rules to be adopted by the SEC.

Typically, rules add detail and aid in the interpretation or implementation of the law. The SEC could delay issuing the required rules or issue rules that are consistent with the letter, but not the spirit of the JOBS Act. For example, the JOBS Act requires issuers to take reasonable steps to verify that purchasers of securities are accredited in order to use general solicitations in connection with securities offerings (discussed under Title II, above). The SEC could easily make the verification requirements so onerous that compliance would be too burdensome, expensive, or simply not practical.

Time and SEC rulemaking will tell.

  • The last day of the fiscal year in which it first exceeds $1 billion (as adjusted) in gross revenues;
  • The last day of the fiscal year following the fifth anniversary of the first sale of common equity under an effective 1933 Act registration statement;
  • The date on which the issuer has issued more than $1 billion (not to be adjusted) in non-convertible debt during the preceding three year period; and
  • The date on which the issuer becomes a “large accelerated filer” as defined in 1934 Act Rule 12b-2.
Signatures, Fraud, and Legal Opinions
By Beat U. Steiner, Holland & Hart LLP

Marc Dreier, who once headed a 250-lawyer New York law firm in which he was the only equity partner (making him the envy of many) was sentenced to 20 years in federal prison in 2009 for an audacious financial fraud, one which calls to mind the schemes of Bernie Madoff. On his way to issuing $200 million dollars of forged notes, which he sold to hedge funds, Dreier was forced to establish his credibility repeatedly. He spared no expense. He once even hired a former SEC enforcement lawyer as an impersonator for $100,000, and borrowed a conference room at Solow Realty, his main client and the putative note issuer, to meet a banker who insisted on seeing the principals in person.

Needless to say, obtaining a legal opinion from Dechert LLP, a major national law firm, addressed to Fortress Credit Corp., a major hedge fund subsidiary, opining that a $50 million note was “a valid and binding obligation” was relatively easy. When the $50 million disappeared and Fortress was looking for defendants, Dechert rose to the top of the list. The New York lawsuit against Dechert claimed fraud, legal malpractice, negligent misrepresentation, and a few other things.

Even though the case against Dechert failed (the Appellate Division, First Department, in a Slip Opinion issued on November 29, 2011 (2011 NY Slip Op 08626), affirmed the trial court’s dismissal of the case on a motion for summary judgment), it is instructive on a number of points for those who give legal opinions.

The first lesson is the importance of knowing your client. From a distance, Dechert easily can be forgiven for not smoking out Dreier – he was a prominent lawyer with a good reputation and obviously a very good swindler. Clearly however, there are enough bad people out there that lawyers who want to avoid nasty situations like this will be prudent whenever agreeing to represent someone who is totally unknown to them. In the Dechert case, the fraud claim failed specifically because the allegation that Dechert acted recklessly in failing to confirm that Solow Realty was in fact involved in the loan transaction was not sufficient scienter to support the claim, and there was no allegation that Dechert knowingly made false statements or was a knowing participant in the fraud.

Second, the Dechert case makes clear the importance of identifying the client in the opinion. Dechert escaped liability on legal malpractice grounds because Fortress was not its client.

The third lesson is the importance of stating the assumptions of the legal opinion, as well as its limitations. Dechert was not held liable for negligent misrepresentation because the opinion expressly assumed the genuineness of all signatures and the authenticity of the documents, and stated that Dechert made no independent inquiry into the accuracy of factual representations or certificates and undertook no independent investigation in ascertaining those facts. Moreover, the opinion, by its terms, provided only legal conclusions.

The final lesson is the importance of defining the scope of the engagement. The court held that Fortress could not sustain a claim for breach of the duty of care because Fortress did not inform Dechert that (a) its obligations were not limited solely to a review of the relevant and specified documents (which, presumably, the opinion stated was the scope of Dechert’s work to give the opinion) and (b) Dechert was to investigate, verify and report on the legitimacy of the transaction (the court apparently concluding that such an undertaking had to be expressly requested and was not implicit in giving the opinion).

The response among law firms that deal in legal opinions has been interesting. Opinion givers have taken note, and, if this has not been their practice already, are adding genuineness of signatures and authenticity of documents assumptions to their opinions. Many firms requesting legal opinions, on the other hand, have gone to opinion givers and insisted that these assumptions be removed from the opinions. Some have even insisted that an opinion be given as to the genuineness of signatures, at least as to the opinion giver’s client. These requests are inappropriate on at least two grounds. First, the genuineness of signatures is always a statement of fact and not a legal opinion, and legal opinions are supposed to be just that, not guaranties or factual opinions. Second, such a request violates the “golden rule” – you should not ask for an opinion that you would not give.

If an opinion giver has the proverbial “gun to the head,” and must give a genuineness of signatures opinion (some governmental agencies absolutely will not allow the assumption), the opinion giver should carefully consider what level of due diligence is required to give the opinion responsibly. Certainly, an incumbency certificate should be obtained, but a certificate generally is not enough, as signatures on it can as easily be forged as on the documents covered by the opinion. Preferably, the documents should be signed in the opinion giver’s presence, and the opinion giver either should know the signatory personally or establish the signatory’s identity with a driver’s license or other appropriate documentation (copy to the file). Now that many closings take place without the signers physically appearing, and separate signature pages (sometimes with nothing but signatures on them – not even a reference to the document being signed), transmitted electronically and then attached to documents by a paralegal, establishing certainty as to the genuineness of signatures can be quite an undertaking.

The Dechert case leaves an important question unanswered. Would the case have come out the same way if Dechert had not expressly assumed the genuineness of signatures in its opinion? If the American Bar Association TriBar report and the reports of most state bar associations are any indication, the answer should be yes. The genuineness of signatures is one of the assumptions that, by common practice, is implicit in every legal opinion. The assumption need not be stated.

Indeed, including the assumption has the disadvantage of making legal opinions lengthier and more complicated, and mentioning some customary practice assumptions may allow someone relying on the opinion to argue that other customary practice assumptions which are not specifically mentioned were not intended.

So, what’s an opinion giver to do? Some will continue to follow the bare bones (perhaps, “purist”) approach and not state in their legal opinions any of the assumptions made by customary practice. Some will add to their opinions a blanket qualification that the opinion is based on all of the assumptions made in customary practice, referring perhaps to a standard like the ABA TriBar report. The most cautious opinion givers will state the genuineness of signatures assumption, perhaps because the Dechert opinion has convinced them of the value of doing so.

Tablet Tech Corner – Security Issues
By Herrick K. Lidstone, Jr. and Elizabeth C. Lewis

This is the fifth in a series of articles for business lawyers who use, or who want to use, tablets in their practice, and applies equally to our iPhones, Blackberries, and Android phones.

We would venture a guess that most readers of this newsletter have lost or misplaced a wallet or a purse at least once. In our experience, once is all it takes to not want to lose it a second time. The difficulty in notifying credit card accounts, obtaining a new driver’s license, and replacing keys and the other very personal information in our wallets and purses is very painful. The loss can also cause personal embarrassment.

The operative concept in the preceding paragraph is “personal.” Generally a loss of a wallet or purse will be a personal loss that does not involve clients or client information. Where it does involve client information, such as losing or misplacing a briefcase, smartphone or tablet with client files, a number of other considerations come into play. These involve the Colorado Rules of Professional Conduct that govern our practice, including the potential compromise of confidential information (Rule 1.6) and whether the loss of the information is an error that must be communicated promptly to the client (Formal Opinion 113).

The capacity of a tablet or a smart phone is significantly greater than any person can carry in a briefcase, wallet or purse. Most of us receive and send emails, text messages, and other communications on our tablets and smart phones, store contact information, and store, work on, and share documents for client matters. The potential loss of a tablet computer or smart phone can be debilitating, not only because of the loss of personal and client information, but more importantly because of the risk that the information may be accessed by another person without authority to do so. As reported on March 9, 2012, two employees of computer security firms set up an experiment called, “The Symantec Smartphone Honey Stick Project” to see how many “lost” smartphones would be returned and if the data would be accessed. They planted 50 smartphones in five cities: New York City, Washington, D.C., Los Angeles, San Francisco and Ottawa, Canada. Each phone was set up with simulated personal and corporate data and equipped so that the employees could monitor what was accessed on the phones.

The study found that “people are curious creatures.” Six out of 10 finders tried to access the social media and email accounts on the phones, but perhaps they were trying to find the owner’s contact information. However, eight out of 10 finders attempted to access files marked “HR Salaries” and “HR Cases.” And nearly half of the people who found the phones tried to access the phone owner’s bank account. Only about half of the persons who found the smartphones attempted to return them. You can likely expect the same results were you to lose your smartphone or tablet with all of its information.

How do you protect yourself from these risks? Most importantly, you must install a passcode to open your smartphone or tablet. The Apple products (iPhone and iPad) allow a four character passcode or a more complex passcode. (For information on how to set up a complex passcode, click here). The more complex the passcode is, the better. The experts say that adding a space between two words (golf club) is better than a one-word passcode (golfclub). The complaint we have heard from avid smartphone users is that ”I access my phone hundreds of times a day. It would be inconvenient to require a passcode each time.“ Our only response is that it would be much more inconvenient to lose or misplace an unprotected smartphone or tablet.

There are other built in features to the iPhone and the iPad which can also help in these circumstances. “Find My iPhone” is an app available with iOS5, the new operating system for the iPhone and iPad. (This app also works with the iPod Touch and Mac computers.) This uses the GPS feature to locate the device. The precision is not great, but it can tell you when the device is moving, and where it is located. (There is a similar app, “Find My Friends,” that will tell you when your friends are close by, but that goes beyond this article.)

With the “Find My iPhone” app, you can also display a message or play a sound on your missing phone. If it is in your house, that might allow you to find it. “Find My iPhone” also allows you to remotely lock the device or completely wipe all data from your missing device. Both locking the device and remotely wiping the data will protect personal and client confidences.

Another valuable feature of the iPhone and iPad is the password lock – erase data. If turned on and the incorrect password is attempted ten times in a row, the data in the device will be erased. While this is a valuable tool, for those of us who have children or grandchildren who like to play with electronic devices, you have to be careful. As Herrick has found, it is easy for a two-year-old to get to the passcode screen and punch in random numbers. Failure. Let’s do it again! Too many times and you lose your data. It can be restored – as long as it has been backed-up to your computer, iCloud, or another cloud solution – but that takes time and patience.

The three words that are important to remember for any device carrying personal or confidential information are: Security, Security, and Security. None of us is immune from a careless moment. With the proper security measures, the careless moment may result in time and frustration, but not embarrassment or compromise of client information.

The information in this and previous Tablet Tech Corner articles have been focused on the iPad, which is what Herrick and Elizabeth use. Android- and Windows-based tablets are coming out on almost a weekly basis, and applications for them are being developed to compete with the iPad. We recognize our narrow focus. If you would like to comment on these articles or offer your own advice and suggestions on an iPad or any other tablet that you are using, please email the Newsletter editor, Ed Naylor directly.

Business Law Section Activities
New Lawyers Subsection – Luncheons
Presented by: Jackie Benson, Moye White

Date/Time: Friday, May 11, 2012 – Noon

Location: CBA Offices, 1900 Grant Street, 9th Fl., Denver, CO 80203 Call-in available.

Prices: (includes lunch) Business Law Section Member $15.00; Non-Member $20.00; Call-in $5.00

CLE Credit: CLE credit applied for

RSVP: Call 303.860.1115, X727 or E-MAIL, Please include your name and “Business Law New Lawyers Luncheon” in your e-mail. Vegetarian meals must be requested when making reservation.


M&A Breakfast CLE Series
IP Due Diligence in M&A – Insights from IP Attorneys – Tuesday, May 1


Presented by: Karin Sullivan and Michael Dulin, Polsinelli Shughart PC


Learn tips from IP attorneys on what to look for and issues to be aware of in the due diligence of a company's intellectual property in an M&A transaction. The speakers will share their points of view from the perspectives of a transactional attorney who has been involved with IP due diligence in M&A transactions and a litigator who has litigated cases involving intellectual property issues that arose from an M&A transaction. Click here for more information.

CLE Information
From Colorado Bar Association

Primer and 21st Annual Institute on Advising Nonprofit Organizations in Colorado — May 10–11

This program will present a comprehensive analysis of legal issues of concern to nonprofit organizations. This year’s institute includes a morning primer designed to introduce practitioners to more general aspects of the laws governing the formation and operation of nonprofit organizations, and the institute will cover a range of issues, including an annual update of recent federal and state tax law developments, emerging issues of employment law that affect nonprofit organizations, real estate issues unique to nonprofits, and ethical obligations of attorneys. Primer Submitted for 4 General Credits and Institute Submitted for 8 General Credits and 1 Ethics Credit. Click here for more information.


Better Appellate Writing, Briefing, and Oral Argument—Thursday, May 24

Colorado Court of Appeals Judge John Webb will show you how to:

  • Express yourself clearly and effectively in your briefs
  • Use well-built guideposts to make it easy for the appellate court judges to follow your position
  • Give a powerful oral argument, including how to handle questions from the bench
  • Deal with ethical questions unique to appellate practice

This includes an interactive in-class writing exercise. Submitted for 4 General Credits, Including 1 Ethics Credit. Click here for more information.


10th Annual Rocky Mountain Intellectual Property & Technology Institute—May 31–June 1

This year’s Institute will provide you with new information, new ideas, new resources, and new energy! You’ll leave with additional insights, knowledge, and practice tips that you can use to be a better practitioner. You’ll receive materials from every session – but you get to choose the sessions that are most relevant and important to you. Want to expand your knowledge base? With over 30 sessions to choose from, this is your opportunity to learn about developments in IP and tech law. Submitted for 14 General Credits, Including 1 Ethics Credit. Click here for more information.

Federal Contracts 2012: Acquisition, Performance and Compliance Fundamentals—June 14

Federal contracts remain a significant source of potential revenue for Colorado businesses. Attend this practical and useful program to get an overview of federal government contract law important for any company considering or currently performing federal contract work. The program will focus on providing a review of key government contract legal requirements throughout the lifecycle of the government contracting process from acquisition through contract closeout. Submitted for 6 General Credits. Click here for more information.

Federal Contracts 2012: Acquisition, Performance and Compliance Fundamentals—June 14

Federal contracts remain a significant source of potential revenue for Colorado businesses. Attend this practical and useful program to get an overview of federal government contract law important for any company considering or currently performing federal contract work. The program will focus on providing a review of key government contract legal requirements throughout the lifecycle of the government contracting process from acquisition through contract closeout. Submitted for 6 General Credits. Click here for more information.

Piercing the Corporate and LLC Veil – The Law and the Proof— Wednesday, June 20

Piercing the veil of a limited liability entity allows a court to hold equity owners liable for the obligations of the entity. Courts make clear that disregarding the entity form should be considered a drastic remedy, and that entity veils should be pierced only reluctantly and cautiously. You know the basic parameters of the law, but do you know how to prove or defend an alter ego case with the necessary and relevant facts and burden of proof from both legal and forensic accounting perspectives? Submitted for 3 General Credits. Click here for more information.

Business Valuation Fundamentals: Applications and Models, and Critical Issues and Hot Topics—Thursday, June 21

Morning Program includes:

  • Introduction to business valuation including the various purposes and uses of business valuation services and reporting.
  • Standards and premises of value and their impact on the value conclusion
  • The three standard valuation approaches and methodologies
  • Normalizing financial statements
  • Discounts and premiums and their impact on the value conclusion


Afternoon Program:

  • Evaluation of continuing attacks by the IRS on family limited partnerships
  • Buy/sell agreement war stories and how to prevent or minimize the battle
  • Uses and Abuses of the Joint Expert
  • Valuations of S corporations and other pass through entities
  • Valuation issues in family law matters
  • Key issues in valuation of intellectual property

Attend either or both programs. Application and Models submitted for 3 General Credits and Critical Issues and Hot Topics submitted for 3 General Credits. Click here for more information.

Save the Date

Bankruptcy Update 2012—Friday, June 22

Changes have been made to the rules that govern how bankruptcy cases are managed. Do you know about the new amendments this year? Do you know what types of bankruptcy cases and Rules will be affected? Participate in this year’s Bankruptcy Law Update, where you’ll learn the answers to these questions, and much more. Call 303-860-0608 or 800-860-2531 for more information.


Financial Institutions Subsection Monthly Luncheons—Beginning in July

The Subsection will begin hosting monthly CLE lunches on the 3rd Wednesday of the month beginning July 18. Call 303-860-0608 or 800-860-2531 for more information.

CBA-CLE Featured Publications

Guide for Colorado Nonprofit Organizations, First Edition

There are more than 19,000 nonprofit organizations in Colorado that represent a vital part of the state’s economy. The laws affecting nonprofit organizations have become increasingly complex and are rapidly changing. With the passage of the Pension Protection Act of 2006, Congress enacted sweeping reforms affecting the charitable sector – the most significant legislation since 1969. More legislation is likely. A Guide for Colorado Nonprofit Organizations was prepared to serve as a resource (with forms) for attorneys to assist them in understanding and addressing the legal and tax issues facing Colorado nonprofit organizations.
Click here to order the book or call 303-860-0608 or 800-860-2531.

2011 Annual Survey of Law: Includes Chapters on Bankruptcy and Taxation!

Each year, author/practitioners from across the spectrum of legal practice areas provide their time and expertise to help produce The Annual Survey of Colorado Law, a yearly compilation of updates of Colorado case law, statutory, and regulatory developments. This 2011 edition is no exception: 35 authors provided updates in 24 areas of the law. The 2011 Annual Survey of Law chapter on Bankruptcy was authored by Kimberley H. Tyson, Ireland Stapleton Pryor & Pascoe; Holly R. Shilliday, Snell & Wilmer; and Robert J. Shilliday III, Shilliday Law. The Taxation chapter was written by leading tax practitioner Norman H. Wright, N.H. Wright & Assoc. The Annual Survey is available not only in a soft cover print version, but you can purchase and download individual chapters. The price of the Annual Survey print version is only $49 for CBA members.
Click here to order the book or call 303-860-0608 or 800-860-2531.


Contributions for future newsletters are welcome –
Contact Ed Naylor at or 303-292-2900

This newsletter is for information only and does not provide legal advice.

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