legal odds & ends crazy legal odds & ends contracts that drive in-house counsel crazy april...

Legal Odds & EndsContracts that Drive

In-House Counsel Crazy

April 22, 20153:30 pm – 6:00 pm

Your Hosts• Kate Molamphy, Senior Counsel

• Bunge North-America

• Alan Farkas, Partner• Chicago• Aviation – SmithAmundsen LLC

• Brad Goss, Partner• St. Louis• Real Estate – SmithAmundsen LLC

• Jack Walsh, Partner• St. Louis• Commercial Litigation – SmithAmundsen LLC

• Eric Lamb, Partner• Indianapolis• Intellectual Property – SmithAmundsen LLC

Association of Corporate Counsel

Kate Molamphy Senior Counsel, Bunge North-America

www.acc.com

• CCI – April 29th – Ritz Carlton• General Counsel Dinner (GCs Only) – April

29th • Career Development Lunch – May 27th

Upcoming ACC Events

AviationAlan Farkas

Partner, Chicago – Aviation – SmithAmundsen LLC

Unmanned Aerial Systems (UAS)aka Drones

• Oh, This is Just a Toy, Pirker and his Friends• So, what is the FAA doing?• What has been approved?• What is next?• How do we use UAS in our business?• Risks/what risks?

Use of Private Aircraft – Do You Need a Corporate Policy?

• Great way to visit the clients out in the sticks• Who is the owner/Who is the operator?• Part 91 v. Part 135 of the FAR

• Is there Vicarious Liability, Why not?• Tragedy Strikes Morgan Stanley

• Charter v. Fractional

A Few Tidbits about Buying and Selling Aircrafts

• BUYING: • It’s all about the Inspection & history• Might have to learn about overhauls, heavy inspection

schedule, engine maintenance programs, and maintenance tracking

• Liens – FAA, Title Insurance, and International Registry• Contract must address delivery, acceptance, warranties, and

indemnity• Taxes – Sales, Use, Flyaway, Rolling Stock, Hobby Loss v.

Business Expense, 1031, Accelerated Depreciation• How will it be owned/Operated? Back to that 91 v 135 issue…

Real EstateBrad Goss

Partner, St. Louis – Real Estate – SmithAmundsen LLC

Three Hot Topics• Leases• Development Agreements• Municipal Regulation

Leases• Don’t lease the atrium – Air should be free• Uses matter and Radii/Exclusives• Assignments – Breadth and Carve Outs• Insurance – Who, What and Quality of

Insurer

Leases• All CAM Isn’t Equal – Overhead, Capital,

Timing and Calculations• Indemnity - Sauce for the Goose• Improvements and Surrender – In Leases as

In Life, Timing is Everything

Development Agreements• Taxing Districts – Burdens and Benefits• Restrictions – Access, Uses, Utilities and

Gates• Incentives – Disgorgement?

• Assignment or Personal?• Architectural Review• Utility Services – Capacity and Charges

Development Agreements

Municipal Regulation• Zoning – Permitted Use, Conditional Use or

Nonconforming Use• Setbacks, FAR and Green Space• Detention, Storm Water and BMP’s

Municipal Regulation• Parking – Offsite, Capacity and Easements• Dedications and Exactions• Escrows and Bonds

Commercial LitigationJack Walsh

Partner, St. Louis – Commercial Litigation – SmithAmundsen LLC

Three Hot Topics• ERISA• New Business Lines• Executives

ERISA• Seems to befuddle the uninitiated• ERISA litigation falls into the cracks between

Labor, Benefits and Commercial Litigation• Not as hard as it seems

ERISA• Some ERISA Litigation is common• Benefit Disputes

• These cases go to specialists that see them all the time• Uncommon types of litigation are the

problem

ERISA• Fiduciary/service provider litigation - much less

common/not well understood even by people who deal with ERISA regularly

• Fiduciary = Function• Even the best documents won’t save you• Fiduciaries cannot turn a blind eye

New Business Lines• Contracts are an allocation of risk -duh!• It's hard to allocate risk when you've never

done something before.

New Business Lines• Protect against uncertainty with:• Boilerplate• Dispute Resolution clauses• Limit your downside even if it limits your upside

Executives• Senior management can turn a run of the

mill case into something special• The stakes are high when your boss (or her

boss) is the bad guy• Nothing is more fun than Executive v.

Executive

Executives• The Rules are the Rules• Covering up never works or helps• It may not be as bad as the boss thinks it is

Intellectual PropertyEric Lamb

Partner, Indianapolis – Intellectual Property – SmithAmundsen LLC

IP Assignments• IP is almost always owned by the

independent contractor, not the company that paid for the work• Exception – written assignment

IP Assignments• Sale of business• Do you really own what you are selling?

IP Assignments• Copyright Infringement• Do you really own your own website?

• Copyright Enforcement• Do you really own what you want to enforce?

IP Assignments• Unintended assignments• Did you accidently assign your IP?• Bad assignments can be worse than ineffective

Thank You!Questions?