Inside
1Q2012
2...ACC Embarks on New Strategic Plan
4...Recent Chapter Events
5...Upcoming Events – Save the Date!
6...2012 Strategic Sponsor Firm Profiles
7...Chapter 15: International Bankruptcy: Foreign Debtors Get
Green Light to Sue U.S. Companies
8...Meet the 2012 ACC-Charlotte Board of Directors
9...Chapter News & Welcome New Members!
10...ACC News
focus
President’s Message
Kenneth Wittenauer
Something in the Kitchen
The upcoming year promises to be a very
eventful time for our Charlotte Chapter.
The considerable efforts of the Executive
Committee, Committee chairs and Board
in 2011 have set a table with many delicious entrees and desserts. Of course, the
ACC kitchen runs on the funds provided
by our generous sponsors and for 2012 we
have considerably increased the number
and financial support provided by our ten
law firms. Our Sponsorship Committee
also deserves considerable praise for this
achievement.
Five Gold Level Firm Sponsors include:
Nelson Mullins Riley & Scarborough;
Ogletree, Deakins, Nash, Smoak and
Stewart; Parker Poe Adams & Bernstein;
Smith Moore Leatherwood; and Womble
Carlyle Sandridge & Rice.
Two Silver Level Firm Sponsors include:
McGuireWoods; Shumaker Loop &
Kendrick
Three Bronze Level Firm Sponsors
include:
K&L Gates, Kilpatrick Townsend &
Stockton and Robinson Bradshaw &
Hinson
Some of that additional support will enable
the chapter to hold ten luncheon/CLE
meetings instead of our standard eight
meetings. Additionally, we have at least
five social events that will be scheduled
throughout the year. In an effort to bring
maximum value to your
membership, the 2012
Board also recently decided
to form two Affinity
Groups, which will also
receive firm support:
A women’s group and a
manufacturer’s group,
details to follow.
Look for more information and opportunities to participate in
these social events and Affinity Groups as
the year progresses. Speaking of participation, we are also encouraging members to
consider participating on one of our many
committees. The following lists our committees and their leadership:
Communications Committee
Chair: Robert Wick
Vice Chair: Bill Robinson
Membership Committee
Chair: Dennis O’Brien
Vice Chair: Suzanne Reynolds
Programming Committee:
Chair: Doug DeMoss
Vice Chair: Natasha Alexeeva
Social Committee:
Chair: Kevin O’Brien
Vice-Chair: Ginger Daly
Strategic Sponsorship Committee:
Chair: Peter Barr
Finance & Compensation
Committee:
Chair: Luther Moore
Vice Chair: Christopher
Tucci
Career Development
Committee:
Chair: Andrew Walsh
Vice Chair: Catherine
Stempien
Nominating Committee:
Chair: Tim Nohr
Vice Chair: Ken Wittenauer
Pro Bono Committee:
Chair: Bill Robinson
Vice Chair: Angela Radel
Some of you may be contacted — especially new members — and requested
directly to participate. Hopefully, you
will have the time and interest to become
involved with a committee which generally takes minimal effort but facilitates an
introduction and network opportunity
with other chapter members.
In 2011, we had fifty-seven new members
join our chapter and active integration
will always be a challenge. One goal, along
with growth, is to increase the sense of
value and community in our chapter. The
monthly meetings provide a very narrow
window of opportunity to connect and
become more familiar with each other.
continued on page 10
ACC Embarks on New Strategic Plan, Building Upon A Rich History of Success
Veta T. Richardson, ACC President & CEO
Shortly after I was named the incoming
president & CEO of ACC, I was tasked with
the development of ACC’s new strategic plan.
This leadership transition was the opportune
time to conduct a comprehensive review of the
organization, assess member needs, identify
gaps and set the path forward for ACC’s continued success. Over the course of more than
six months, ACC board members, senior staff,
volunteer leaders and members from around
the world provided input into the strategic
planning process.
For almost three decades, ACC has served the
professional and business interests of lawyers
who practice in the legal departments of corporations, associations and other private-sector
organizations around the globe. With almost
30,000 members employed by over 10,000 organizations in more than 75 countries, ACC is
the world’s largest network of in-house counsel.
ACC serves its members by connecting them
to one another, and to the information and
resources necessary to support their professional growth.
ACC’s market-leading position and high levels
of member satisfaction have set the stage for
exciting opportunities to evolve the organization. However, ACC’s new strategic plan does
not represent a radical change in direction or
focus. Rather, it clarifies and expands upon how
ACC will build upon its strong foundation to
advance its mission over the next five years.
Membership Engagement and
Key Findings
This strategic planning process incorporated
unprecedented levels of member feedback,
thereby providing a clear understanding of the
value drivers that underlie the decision to join
and remain a member of ACC.
ACC owes a debt of gratitude to the 4,130
members who completed an online strategic
plan survey, the 55 members who participated in focus groups held at the 2011 Annual
Meeting, and the 16 members from six
different countries who were kind enough to
be interviewed for their thoughts on ACC’s
mission, vision and past strategies. Respondents
included board, chapter and committee leadership, as well as a broad spectrum of members
— from CLOs to new to in-house members
Charlotte Chapter FOCUS 1Q12
— from small and large departments
worldwide.
The following 10 key findings represent the
most important factors gleaned through the
process and they lay the foundation for this
strategic plan.
1. Members are supportive of ACC’s current
mission and vision, and are highly likely to
recommend ACC.
Both member survey responses and key stakeholder interview input validated that ACC’s
basic mission and vision statements are appropriate because they are aligned with member
needs. In fact, member survey respondents
were asked to rate the extent to which they
believe ACC is currently fulfilling each element
of its vision. All elements of the vision were
rated highly, indicating ACC has been successful in meeting member needs.
Members are also highly likely to recommend
ACC to their colleagues and friends, indicating
that ACC enjoys a high measure of customer
loyalty. This likelihood was even greater among
members who serve (or have served) in leadership positions, either at the committee, chapter
or ACC board of directors level.
2. ACC’s mission attainment principally
relies upon three value drivers: prominent
market leadership, member satisfaction and
retention, and organizational stability.
During the strategic planning process, the
critical capabilities that support ACC’s ability to
attain its mission were identified and mapped
into a “value tree.” The value tree is a visual
representation of how ACC creates value and is
a collection of capabilities, activities, programs
and services required for ACC to be successful. These key success factors were identified
as prominence in the legal marketplace, high
levels of membership satisfaction and renewals,
and the financial and organizational stability of
the association.
3. ACC is effectively meeting member needs
in all key areas, and is most effective in those
areas that are most important to members.
Select value drivers from the above-discussed
value tree formed the basis for an online survey
to collect feedback from all ACC members.
Members were asked to assess the importance
and effectiveness of eight value drivers, or the
key areas that significantly influence their decision to join and remain a member of ACC:
1. Exchanging best practices and practical
resources
2. Educational/professional development
3. Thought leadership
4. Access to networking opportunities
5. Member engagement and visibility
6. Brand value
7. Advocacy efforts
8. Sharing information and creating synergies
All effectiveness ratings for each of the eight
factors were very positive, thereby demonstrating a high level of member satisfaction.
4. Members’ perceptions of ACC’s effectiveness in each of the eight key areas are
aligned with their perceptions of its relative
importance.
The results of the online member survey also
led to the ability to analyze how members’ perceptions of ACC’s effectiveness align with their
perceptions of the importance of the area being
examined. ACC members indicated importance and effectiveness were almost perfectly
aligned, reflecting an accurate understanding of
member needs and preferences. The analysis of
the member survey results did not identify significant gaps (i.e., instances where importance
significantly outpaced effectiveness). Overall,
the survey results indicated that there was substantial alignment among ACC’s effectiveness
relative to the level of importance of the key
capability, activity, program or service.
5. ACC board members and general members agree that ACC is effective, but their
perspectives differed regarding the relative
importance of thought leadership, advocacy,
and sharing information and creating
synergies.
ACC board members rate ACC’s effectiveness
more highly than does the general member
population, especially for the following three
value drivers — Thought Leadership, Advocacy
Efforts and Sharing Information & Creating
Synergies. In addition, board members also
differed from general members in their
importance rankings. Board members place
greater importance on Thought Leadership
and Advocacy and less importance on Sharing
Information & Creating Synergies.
continued on page continued from page 6. Education and professional development
are highly valued by members.
Education and professional development
continue to be highly valued by our members.
“Opportunities for educational and professional
development” was ranked as the most important value driver to members, with 33 percent
of the survey participants rating this as the top
reason why they join and remain members of
ACC. Key stakeholders interviewed during this
process also noted that education is highly valued, and that for most members in the United
States, all or almost all of their Continuing
Legal Education (CLE) requirements are met
through their participation in ACC events.
Similarly, member focus group participants
consistently supported strategic initiatives
related to education and professional
development.
7. Member diversity suggests that ACC cannot be “all things to all members.”
ACC members are extremely diverse — by
position, experience level, department size,
industry and geography. This creates inherent
challenges in the ability to address the needs
and interests of all ACC members and constituencies. Stakeholder interviews and focus groups
indicate the realization that ACC’s success will
require prioritizing some needs over others and
accepting that in some cases, certain member
needs and desires may go unaddressed.
8. Members believe that it is important for
ACC to build and develop a strong global
presence and international network of inhouse counsel.
Member survey participants were asked to rate
the extent to which it is important for ACC to
build and develop a strong global presence and
international network of in-house counsel. 81
percent of members responded that these matters are important to a moderate, great or very
great extent. In fact, 45 percent of members
strongly support developing a global presence
whereas only 19 percent responded that they
are not supportive, or supportive only to a
small extent. 9. Members recognize the potential of social
media, but do not believe ACC should evolve
its platform at this time.
During the interviews, key stakeholders were
asked to share their perspectives regarding
social media and its potential as a growth
opportunity for ACC. Almost every key
stakeholder described social media as an area
they believed to be important to other (likely
younger) members. Many indicated they were
not experienced users and did not personally
see a need for social media offerings beyond
what ACC offers today.
10. CLOs of large law departments can
significantly impact ACC’s success and are
interested in offerings that better meet
their needs.
ACC currently provides significant resources
to small law departments through committees,
chapters, and other resources and services.
These members play a critical role to ACC and
to the profession.
In an effort to serve the full in-house community, it is critical that ACC also make large
law CLOs more aware of the value of ACC.
Key stakeholders and large law CLO focus
group participants highlighted the need to
more effectively serve this segment, especially
as the group is at a greater risk of joining other
associations that compete with ACC for this
sector of the in-house community. Given their
ability to sign up multiple members at once and
positively add to ACC’s visibility and stature by
virtue of their prominence, engaging CLOs of
large law departments will contribute to ACC’s
growth.
Strategic Themes and Approaches
The cornerstones of ACC’s new Strategic Plan
are three simple, powerful themes that will
guide decision-making and be consistently
reinforced with ACC’s key constituents. These
strategic themes describe what ACC will do
over the next five years to advance its mission
and vision, as well as the specific approaches for
pursuing these themes.
THEME 1: Combine and focus resources to
streamline the exchange of information.
• Create and provide easy access to relevant,
high-quality, and timely resources and
information.
• Create opportunities for chapters and committees to share resources and best practices
to more efficiently serve members’ needs.
THEME 2: Optimize services and experiences to
retain and engage members.
• Create meaningful connections between
members that contribute to their professional success.
• Identify and pursue strategic alliances to
deliver services to members and represent
their interests.
• Strengthen the position and capabilities of
in-house counsel as business professionals.
THEME 3: Position ACC for continued relevance
and impact.
• Develop targeted offerings to increase Large
Law CLO participation and engagement.
• Evolve internationally to maintain ACC
market leadership.
• Understand, monitor and act upon the
needs of the next generation of in-house
counsel.
• Be the voice of the in-house bar.
Revision of ACC’s Mission and Vision
to Reflect Globalization Strategy
More than a decade ago, ACC’s leadership
decided to pursue becoming a global association and several steps were taken in furtherance
of that goal. The association changed its name,
chartered four new chapters outside the United
States and expanded its membership base to
encompass more than 75 nations — representing approximately 13 percent of all members.
In recognition of these advancements and the
value members place on globalization, the
ACC Board unanimously approved amending
ACC’s mission and vision to reflect the strategy
to build and develop a strong international
network and global presence.
Mission
ACC is a global bar association that promotes
the common professional and business interests
of in-house counsel who work for corporations,
associations, and other private-sector organizations through information, education, networking opportunities and advocacy initiatives.
Vision
ACC aims to be the premier global bar association serving the diversified needs of in-house
counsel by:
• Anticipating and understanding the
needs of the in-house bar
• Helping members deliver services to their
corporate clients efficiently and promote
the value of in-house services
• Influencing the practice of law as it
affects the in-house bar
• Delivering a mix of relevant, timely services, including information, education,
networking and advocacy.
Recent Chapter Events
On December 7, 2011, the Charlotte
Chapter conducted its Annual Meeting
and hosted a social networking lunch. This
event had great attendance with over 90
participants and was an opportunity for
the Charlotte Chapter to express appreciation to our 2011 Strategic Sponsors. All
of our Strategic Sponsors were present to
mingle and enjoy lunch with Charlotte
Chapter members and guests. This Annual
Meeting included the election of five officers for 2012:
President—Ken Wittenauer (Britax Child
Safety),
President Elect—Doug DeMoss (General
Dynamics ATP),
Treasurer—Christopher Tucci (EquiFirst/
Barclays Bank),
Secretary—Anna Blackwelder (SGL
Carbon),
Past President—Tim Nohr (Rack Room
Shoes).
In addition, the following Board Members
were elected for three, two and one year
terms:
Colleen Jones (ACN, Inc.),
Jane Lewis-Raymond (Piedmont Natural
Gas Co.),
Steve Millsap (Polymer Group),
Luther Moore (Belk Store Services),
Dennis O’Brien (Maersk, Inc.),
Kevin O’Brien (Goodrich Corporation),
Bill Robinson (Montgomery Insurance);
and
Catherine Stempien (Duke Energy
Company).
Tim Nohr was recognized for his great
service and efforts as President of the
Charlotte Chapter FOCUS 1Q12
Charlotte Chapter in 2011,
and was presented with an
engraved gift as a token
of our appreciation for his
efforts. The “recognition”
included an entertaining
power point presentation
by President-Elect Ken
Wittenauer, which summarized the highlights of
Tim’s service as President.
Please join the Charlotte
Chapter in congratulating
Tim on his service and
dedication to the Charlotte
Chapter in 2011.
On Friday, January
20, 2012 the Charlotte
Chapter held the 8th
Annual Winter Gala at the
Mint Museum UPTOWN
at the Levine Center for
the Arts. The event was
very well attended, with
over 196 attendees, which
included members, guests
and our strategic sponsor
representatives. Everyone
enjoyed an elegant evening,
which included great food,
drinks, conversation and
the opportunity to tour the
Mint Museum. The Winter
Gala has become the
premier social event of the
Charlotte Chapter and the
ever-increasing attendance
at the Gala demonstrates
the strength and growth of
our Chapter.
continued on page continued from page This Annual Gala is complimentary for members
and would not have been
possible without the most
generous support of our
sponsors. Thank-you to
our sponsors and all that
attended!
On Wednesday, February
1, 2012, at Byron’s South
End, Nelson Mullins
Riley & Scarborough LLP
sponsored a panel presentation of local in-house IP
practitioners and Nelson Mullins IP attorneys. This panel discussion focused on the
key changes in Federal patent law brought
about by the America Invents Act, which
was signed into law by the President on
September 16, 2011. The speakers included
Kevin O’Brien, Senior IP Counsel at
Goodrich Corporation, Chris McAvoy,
IP Counsel at Husqvarna, Ryan Probst,
Associate General Counsel at Gilbarco
Inc., Craig Killen, Partner in the IP Group
at Nelson Mullins and was moderated by
Lance Lawson, Partner in the IP Group at
Nelson Mullins.
the Boss of Me!, Regulating Employee
Conduct On and Off of the Job.” Our sponsors Ogletree, Deakins, Nash, Smoak and
Stewart provided us with an elegant setting
and a delicious reception following the
event.
On Wednesday, March 7, 2012, at Byron’s
South End, Smith Moore Leatherwood
LLP sponsored “Product Liability:
Proposed Strategies for Minimizing
Associated Risks,” a panel presentation of
in-house corporate attorneys and attorneys
at Smith Moore Leatherwood LLP. The
panelists included Peter Barr, GC at Rack
Room Shoes, Steve Millsap, Associate GC
at Polymer Group, Jon Berkelhammer
and Mike Bowers of Smith Moore
Leatherwood LLP.
On Thursday, March 22, 2012, at The
Ritz-Carlton in Charlotte, our chapter enjoyed a CLE entitled, “You’re Not
On Thursday, March 29, 2012, the
ACC Charlotte Chapter, along with the
sponsorship of Parker Poe, Adams &
Bernstein LLP, hosted a cocktail reception with a charitable twist, “Our Cause,
Your Cause.” Charlotte Chapter members
brought donations of school supplies to
benefit Classroom Central, and a few lucky
Charlotte Chapter members had a donation made by Parker Poe to the charity of
their choice!
On Wednesday, April 4, 2012, at Byron’s
South End, Kilpatrick Townsend &
Stockton sponsored “Social Media and
Corporate Espionage — How to Protect
Your Company from Trade Secret Theft.”
Kilpatrick’s attorneys Audra Dial and
Clay Wheeler presented a very timely
program offering practical guidelines and
best practices on protecting trade secrets
and social media policies.
Upcoming Events – Save the Date!
April 12, 2012 – Please join us at the
offices of our event sponsor, Womble
Carlyle Sandridge & Rice, PLLC for
the presentation, “Eight Big Litigation
Pitfalls of Companies That Don’t Often
Get Sued.”
April 19, 2012 – The Women’s Affinity
Group along with our sponsors, Parker
Poe Adams & Bernstein will host a social
event: “Good Eats and Sweet Treats” at
Osso Restaurant & Lounge.
April 20, 2012 – Please join us at Vivace
for a New Member Lunch, sponsored by
Shumaker, Loop & Kendrick, LLP.
May 2, 2012 – Please join our chapter at Byron’s South End for a “2012
Employment Law Update” presented by
Keith Weddington of Parker Poe Adams &
Bernstein.
2012 Meeting Calendar
May 3, 2012 – Please join us in WinstonSalem for a satellite CLE event, “You’re
Not the Boss of Me!, Regulating
Employee Conduct On and Off of the
Job” along with our sponsors Ogletree,
Deakins, Nash, Smoak and Stewart at
the beautiful Graylyn International
Conference Center.
May 2nd, June 6th, July 11th, August 1st,
September 5th, October 3rd, November
7th and December 5th.
Please mark your calendars with the
chapter meeting dates for 2012 at Byron’s
South End. We will provide further details
regarding those other events soon.
Please save the following dates for our CLE
events at our sponsor’s locations on:
July 25th, August 23rd, September 27th,
and October 17th.
May 15, 2012 – Please join us and our
sponsors, Smith Moore Leatherwood, for
our next chapter social event at Vivace in
Charlotte for “Delicious Italy: A Food &
Wine Pairing Reception.”
2012 Strategic Sponsor Firm Profiles
Shumaker, Loop & Kendrick, LLP is a
National Law Journal Top 250 Law Firm,
with over 220 attorneys, 55 paralegals, and
450 employees in its five offices located
in Charlotte, North Carolina; Columbus
and Toledo, Ohio; Sarasota and Tampa,
Florida.
In each of our markets, Shumaker is a
premier provider of quality legal services
to our core constituency: individuals, small
businesses, health care providers, nonprofit
organizations, Fortune 500 and international corporations. Our mission is to
work on our clients’ timetable and budget,
focus on results and keep our clients ahead
of the curve.
Several of our lawyers have advanced
degrees in disciplines related to their practices and a number have clerked for federal
and state trial and appellate court judges. A
number of our lawyers have received honors from various prestigious publications.
70 are listed in Best Lawyers in America,
With six offices in North Carolina, South
Carolina and Georgia, Smith Moore
Leatherwood LLP has been serving clients
throughout the Southeast, the nation,
and abroad since 1919. Smith Moore
Leatherwood boasts more than 180 experienced attorneys with excellent reputations
for quality, and responsive client service in
five core areas: business, litigation, commercial real estate, labor and employment,
and healthcare.
Our Charlotte office is home to some of
the firm’s most experienced and well-recognized commercial litigators. Our team
is comprised of trial lawyers who have
handled cases in forums throughout the
Southeast and the United States including
state and federal trial and appellate courts,
as well as arbitrations, both domestic
and international. Our clients’ businesses
are diverse, covering a wide range of
industries, such as technology, consumer
products, chemical, manufacturing, health
Charlotte Chapter FOCUS 1Q12
communities, benefit our most economically disadvantaged citizens, and promote
the arts and other sources of economic
development. We hope to make a positive
difference in the communities in which we
work and live.
28 are Board Certified, 16 are Board
Certified Mediators & Arbitrators, 99 are
AV Peer Review Rated by Martindale, and
54 are Super Lawyers or Rising Stars.
Shumaker has a long history of community
support. The firm is a strong supporter of
nonprofit organizations in each of its five
locations and it firmly believes in giving
back to the communities it serves.
The Leadership Shumaker program
enables and encourages attorneys and staff
to contribute both time and money to
various public, private and not-for-profit
organizations that promote the general
improvement of our neighborhoods and
care, banking, insurance, and real estate.
We pride ourselves on listening, and
understanding our clients’ businesses;
working with them to achieve their unique
goals. We also routinely advise clients on
preventative measures, and regularly work
in the less formal environment of alternative dispute resolutions.
Our experience in commercial litigation
matters, includes:
• Antitrust
• Commercial and Consumer Fraud
• Consumer Finance
• Contract
• Corporate Control
• Fiduciary Duty
We understand that when selecting a law
firm, most clients are primarily looking for
four things:
• A high level of quality, sophistication,
and experience
• A creative and imaginative approach
that focuses on finding solutions, not
problems
• Accessible attorneys who give their
clients priority treatment and extraordinary service
• A fair, cost-effective price
•
•
•
•
•
•
•
Franchises
Intellectual Property
Professional Liability
Securities
Trade Secrets
Toxic Torts
Unfair Trade Practices
Additionally our Charlotte office boasts
a prestigious tax and wealth transfer
planning group that works not only with
individuals and families, but also with
corporations. We regularly work in tax and
business transactions that include structuring purchases and sales of closely-held
business interests and real estate, partnership agreements, operating agreements
for limited liability companies, corporate
bylaws, and shareholders’ agreements for
corporations.
Chapter 15: International Bankruptcy:
Foreign Debtors Get Green Light to Sue U.S. Companies
David H. Conaway, Shumaker, Loop & Kendrick, LLP
Recent court decisions, in the context of
Chapter 15 of the U.S. Bankruptcy Code,
signal the U.S.’s “open door” policy to
lawsuits by foreign debtors.
Chapter 15 of the U.S. Bankruptcy Code
relates to international insolvency proceedings. Specifically, Chapter 15 regulates bankruptcy proceedings filed in the
U.S. that are “ancillary” to an insolvency
proceeding in another country. The need
for Chapter 15 arises from the reality that
many insolvent companies have assets,
liabilities and claims in multiple countries, including in the U.S. Based on the
United Nations’ Model Law on CrossBorder Insolvencies, Chapter 15 was
enacted to promote cooperation between
U.S. courts and foreign courts during
international insolvency proceedings
and to promote greater legal certainty for
trade and investment.
What rights or remedies a foreign debtor
may have in a Chapter 15 proceeding
depends primarily on whether the foreign
insolvency proceeding is considered
by the U.S. Bankruptcy Court to be a
“foreign main proceeding” or a “foreign
non-main proceeding”. While the difference between these two is beyond the
scope of this article, if the foreign debtor’s
“center of main interest” or COMI, is in
the country where the foreign insolvency
case is pending, the U.S. Bankruptcy
Court will conclude that the foreign
proceeding is a “foreign main proceeding”. COMI is analogous to a company’s
principal place of business.
Once the Chapter 15 is determined to be
an ancillary to a “foreign main proceeding”, the foreign debtor has certain rights
and powers available to it in the Chapter
15 case.
Right to Pursue Avoidance
Actions in Chapter 15
Chapter 15 specifically provides that a
foreign debtor may NOT pursue recovery
actions in a Chapter 15 proceeding under
Sections 547 (preferences) and 548
(fraudulent conveyances) of the
Bankruptcy Code. To gain those rights,
a foreign debtor would have to file a
Chapter 11 or Chapter 7 proceeding in
U.S. Bankruptcy Court. Debtors in U.S.
bankruptcies frequently sue their prepetition vendors to recover payments
made for goods supplied by the vendors,
often considered avoidable as preference
payments.
However, in the Condor Insurance Ltd.
case, the U.S. Fifth Circuit Court of
Appeals ruled that a foreign debtor could
sue third parties in a Chapter 15 case,
using the avoidance provisions under
the laws of the foreign country where
the “foreign main proceeding” is pending. Condor Insurance was a Caribbean
corporation organized under the laws
of Nevis that operated an insurance
and surety bond business. A creditor of
Condor initiated “winding up” proceedings (similar to a Chapter 7 proceeding)
against it in Nevis. The Nevis liquidators in turn commenced a Chapter 15
proceeding in the U.S. Bankruptcy Court
for the Southern District of Mississippi,
based on the Nevis proceeding being the
“foreign main proceeding.”
The Nevis liquidators sought to recover
$313 million in assets that allegedly were
transferred to third parties in the U.S.
and to this end commenced an adversary
proceeding in the Chapter 15 case to
recover the assets that were fraudulently
transferred. The defendant in this action
argued that the Nevis liquidators were
prohibited from pursuing avoidance
actions in Chapter 15. The Fifth Circuit
Court of Appeals ruled that Condor
could pursue the avoidance actions to
recover transferred assets. In so ruling,
the Court agreed that the Nevis liquidators could not use the avoidance powers
in the U.S. Bankruptcy Code (including
Sections 547 and 548). However, the
Court ruled that Chapter 15 allowed the
Nevis liquidators’ to use the avoidance
provisions of Nevis law.
Tolling of Statutes of Limitation
On a related topic, in the Fairfield Sentry
Ltd. 1 case, the United States Bankruptcy
Court for the Southern District of New
York recently ruled that the tolling provisions of Chapter 11 and Chapter 7 that
allow a debtor an additional two years to
sue third parties also apply to Chapter
15 debtors. Fairfield Sentry and related
entities were the leading “feeder funds” to
Bernard L. Madoff Investment Securities,
LLC. After Madoff ’s fraud was exposed,
the Fairfield Sentry funds entered liquidation proceedings under the laws of the
British Virgin Islands, where the funds
were organized and operated. In connection with the BVI proceeding, the BVI
liquidators filed more than 200 “redeemer
actions” to recover almost $6 billion.
In addition, the BVI liquidators filed a
Chapter 15 in the U.S. Bankruptcy Court
for the Southern District of New York
seeking recognition of the BVI proceedings as a “foreign main proceeding”. The
BVI liquidators’ strategy was to utilize
the Chapter 15 proceeding to commence
additional lawsuits in the Chapter 15 case
against various third parties, arising from
the Madoff fraudulent activities. Given
the magnitude and complexity of such
potential claims and lawsuits, the BVI
liquidators needed more time to investigate and initiate such claims. However,
there was a concern that the statute of
limitations on such claims would expire,
thus barring recovery against third parties. Accordingly, the BVI liquidators
sought to take advantage of the two-year
tolling provisions of Chapter 11. These
provisions provide that if a Chapter 11 or
Chapter 7 is filed prior to the expiration
of any applicable statute of limitation,
the debtor or trustee has an additional
two year period after the filing to initiate
claims.
The question presented by Fairfield
Sentry is whether a foreign debtor could
take advantage of the tolling provisions in
continued on page continued from page a Chapter 15 case. The Bankruptcy Court
in Fairfield Sentry ruled that in fact the
tolling provisions do apply in a Chapter
15 case, thus giving the BVI liquidators
until July, 2012 to investigate and file
additional claims or lawsuits.
The rulings in these cases will no doubt
encourage foreign debtors to pursue
claims against third parties in the U.S.,
and to utilize Chapter 15 for this purpose.
Parties that do business with foreign companies now face the prospect that their
foreign business partners file insolvency
proceedings in their “home” jurisdictions,
then commence Chapter 15 proceedings
in the U.S. Moreover, such parties face the
possibility that they will be sued by such
Chapter 15 debtors under the laws of a
foreign jurisdiction.
©David H. Conaway, Shumaker, Loop &
Kendrick, LLP
[email protected]
The contents of this Update are offered
as general information only and are not
intended for use as legal advice on specific
matters.
Strategic 2012
Strategic Sponsors:
GOLD:
Nelson Mullins Riley & Scarborough, LLP
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
Parker Poe Adams & Bernstein LLP
Smith Moore Leatherwood LLP
Womble Carlyle Sandridge & Rice, PLLC
SILVER:
McGuireWoods LLP
Shumaker, Loop & Kendrick LLP
BRONZE:
K&L Gates LLP
Kilpatrick Townsend & Stockton LLP
Robinson Bradshaw & Hinson, P.A.
Meet the 2012 ACC-Charlotte Board of Directors
Left to right: Dennis O’Brien, Bill Robinson, Colleen Jones, Tim Nohr, Christopher
Tucci, Anna Blackwelder, Ken Wittenauer, Jane Lewis-Raymond, Doug DeMoss, Kevin
O’Brien and Steve Millsap. Those not pictured are Luther Moore and Catherine
Stempien.
Charlotte Chapter FOCUS 1Q12
Chapter News
Charlotte Chapter Donates
Scholarship to Charlotte School
of Law
For the second consecutive year, the
Charlotte Chapter’s Board of Directors
authorized a donation of a needs-based
scholarship in the amount of $500.00 to
the Charlotte School of Law (“CSL”), to
assist a law student with his or her bar
review course.
The chapter submitted the donation to
CSL’s Law and Community Foundation in
December, and requested CSL to develop
criteria for selecting the recipient of the
scholarship. Once a recipient is selected,
the Officers will reach out directly to congratulate the student.
The Board first authorized the scholarship
award in 2010. The concept of awarding
a scholarship was originally proposed by
the Officers as way to increase the chapter’s
community outreach by donating money
within the confines of chapter resources
to help defray the costs associated with
enrolling in a bar review course.
The chapter has an on-going collaborative
relationship with CSL, which has hosted
our Pro Bono Forums and our GC Panel
events. For 2012, the Chapter Officers
have proposed doubling the number of
recipients to two, each receiving a $500.00
scholarship.
Member Announcements!
Congratulations to Julie Mueller at
Polymer Group on the birth of her son,
William “Bo” Frederick Mueller on
November 28, 2011!
We want to hear about your latest professional and personal accomplishments or
exciting events in your life. Please send
these to Jane Nohr, Chapter Administrator
at [email protected].
2012 Chapter Committee Chairs
Thank you to our committee chairs and
committee members for 2012:
Communications Chair: Robert Wick
Membership Chair: Dennis O’Brien
Programming Chair:Doug DeMoss
Social Chair: Kevin O’Brien
Strategic Sponsorship Chair: Peter Barr
Pro Bono Chair: Bill Robinson
Career Development Chair: Andrew Walsh
Nominating Chair:Tim Nohr
Finance & Compensation: Luther Moore
Chapter Website Update
Please check out the Charlotte
Chapter website, which now includes a
Membership Directory, which will be more
convenient when trying to find Charlotte
ACC members. This feature is only accessible to ACC members and it is automatically updated when we have new members
or other changes occur. In addition, there
is a new calendar feature on our webpage
with information on all our events. By
clicking on a particular event you can add
the date to your own Outlook or Google
calendar. Log in and check it out at http://
charlotte.acc.com.
Call for Articles
If you would like to publish an article in
the newsletter, or know an in-house lawyer
who has made a difference in the community, please consider publishing the
information in our newsletter. If you are
interested, please contact us at [email protected].
Welcome New Members!
We welcome 14 New Members who have joined our chapter from November 2011 to January 2012:
Lawrence Brundick with Wells Fargo
& Company
Stephen Liccione with Continental
The Americas
Samuel Wade Sheek with IngersollRand Company
Ben Cassarino with The Catellus
Group, LLC
Kattie Liska with Ingersoll-Rand
Company
Heather Smith with Duke Energy
Corporation
Patrick Fogarty with OpenSource
Solutions Group, LLC
John McCally with TIAA-CREF
Goran Stojkovich with Babcock &
Wilcox Nuclear Energy, Inc.
John Heuer Jr. with Balfour Beatty
Construction
Hannah Lee with Wells Fargo &
Company
Phyllis Golden Morey with IngersollRand Company
Kevin Murphy with Goodrich
Corporation
Nancy Wright with Duke Energy
Corporation
Board Members and Contacts
President
Kenneth Wittenauer
Britax Child Safety, Inc.
704.583.8706
[email protected]
President Elect
Program Chair
Douglas DeMoss
General Dynamics Armament and Technical Products, Inc.
704.714.8005
[email protected]
Secretary
Anna Blackwelder
SGL Carbon, LLC
704.593.5282
[email protected]
Treasurer
Christopher Tucci
EquiFirst Corporation
704.494.9107
[email protected]
Immediate Past President
Timothy Nohr
Rack Room Shoes, Inc.
704.501.4674
[email protected]
Membership Chair
Dennis O’Brien
Maersk Inc.
704.571.5212
[email protected]
Communications Chair
Robert Wick
Schaeffler Group USA Inc.
803.802.4095
[email protected]
Board of Directors
Colleen Jones
Jane Lewis-Raymond
Steven Millsap
Luther Moore
Kevin O’Brien
William Robinson
Catherine Stempien
Chapter Administrator
Jane Nohr
704.999.0814
[email protected]
10 Charlotte Chapter FOCUS 1Q12
continued from page We hope to enhance your membership at the monthly meetings by creating
an atmosphere that is both relaxed and personable. My experience is that
everyone enjoys sharing a laugh, and so the voices from the podium may
offer some surprises at our luncheon meetings.
By the time that you read this newsletter, you should have attended our
Annual Gala this year at the Mint Museum Uptown. It had outstanding
attendance and the smiles at the tables and the reluctance to leave at the
close were indicative of a successful event. The ability to view the galleries
and the open, airy atmosphere also lent itself to a very interesting and fun
evening. Look forward to more such diverse events in unexpected venues.
Finally, as the Board President, I hope to facilitate a chapter that you feel
not only offers valuable substance, but more importantly offers a sense of
in-house community. In this ever changing economic/employment arena,
the ability to build and foster a community of similarly situated professionals is vital and necessary to our collective and individual security and job
satisfaction. I very much look forward to getting to know you all better as
the year progresses.
ACC News
Sharpen Your Business Skills in Less Than Three Days
Business insight and knowledge are critical for in-house practitioners. The
Mini MBA for In-house Counsel Program, offered by ACC and the Boston
University School of Management, will enhance your management skills
and help you make smart and savvy business decisions.
Several program dates for you to choose from:
• Apr 25–27, Los Angeles
• Jun 4–6, Boston
• Jun 6–8, Boston
For more information on these programs and other programs developed by
ACC and BU, visit www.acc.com/businessedu.
ACC’s 2012 Annual Meeting: Register Now and Get the
Lowest Rate!
Reserve for your spot by March 7 for ACC’s 2012 Annual Meeting
(September 30–October 3, Orlando, FL) and take advantage of the early
bird rate. It’s a $200 saving off the regular rate! Offering a year’s worth of
CLE/CPD credits and top-notch educational programs, this meeting is the
one-of-a-kind event for you to enhance your legal skills, meet leading legal
service providers, and expand your professional networks. Learn more and
register at am.acc.com.
Learn to Drive Value at ACC’s Legal Service Management
Workshop
Working on controlling outside counsel spending? Be sure to attend ACC’s
Legal Service Management Workshop (May 2–3, 2012, Minneapolis, MN).
This two-day, intensive executive workshop brings together law department
and law firm leaders who are committed to driving value for clients, and
uses a blend of instruction, practical tools and business school style case
exercises to develop skills in implementing value-based fee structures and
management practices to improve efficiency. Take your career to the next
level, learn more and register at www.acc.com/legalservicemanagement.