Blog, Business Litigation
The “Binding” Letter of Intent, Corporate Acquisition Strategy Via Litigation
KGR helped the client enter into a “binding letter of intent (LOI)” with minority shareholders to purchase the minority shares of company. The goal was to acquire the entire target company by enforcing the shareholder agreement rights and obligations. The shareholder agreement contained various triggers for compelling the sale of shares, or the right to purchase shares. The majority shareholder also happened to be terminally ill with serious health and potential capacity issues, thus certain corporate avoidance actions were subject to attack. The successful litigation strategy was based on strict interpretation and enforcement of the shareholder agreement and enforcement of the LOI as a binding unconditional minority shareholder contract, not a mere conditional statement of intent. The result was an industry impacting business resolution and the acquisition of the target company via the LOI strategy and contract enforcement strategies. For a thorough discussion of these issues, or if you have other questions regarding your minority shareholders rights, please contact David Wright and Kevin Koons, or one of our other attorneys here to discuss your situation. It would be our pleasure to assist you.
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David Wright
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Blog, News, Sports and Entertainment Law
Bill Bock and the USADA Team
Kroger, Gardis & Regas partner, Bill Bock, who serves as General Counsel to the United States Anti-Doping Agency (USADA) recently concluded a high profile investigation into anti-doping rule violations engaged in by Alberto Salazar and Dr. Jeffrey Brown, who were affiliated with the well-known distance running group formerly known as the Nike Oregon Project (NOP). Salazar, once regarded as one of the best known running coaches in the world, and Brown, who served for years as a performance consultant to the Nike Oregon Project (NOP), are now suspended from the sport for four years. On September 5, 2019, a AAA arbitration panel found Salazar guilty of trafficking testosterone, tampering with the doping control process and administration of prohibited, over-limit L-carnitine infusions. The arbitration cases against Salazar and Brown were the result of a more than 6 year investigation into the conduct of Salazar and Brown by USADA and a 2 year arbitration process in which Salazar and Brown contested the charges against them and Bock served as USADA’s lead counsel. USADA’s investigation was aided by whistle blowers who came forward with their personal observations and provided USADA with access to their patient records with Brown and their email communications with Salazar. Fallout from the ban has resulted in the NOP being shuttered in an announcement made by Nike the week after the arbitration decisions. “The athletes in these cases found the courage to speak out and ultimately exposed the truth,” said USADA Chief Executive Officer Travis T. Tygart. “While acting in connection with the Nike Oregon…
Banking and Commercial Transactions, Bankruptcy Law, Blog
Indiana’s Dislike of Cognovit Notes
Indiana doesn’t look kindly upon cognovit notes, even though its neighbor, Ohio, routinely uses them. In fact, Indiana’s dislike of cognovit notes is demonstrated by the existence of an Indiana statute providing it’s a Class B misdemeanor to procure, retain possession of, or attempt to recover upon a promissory note with a cognovit provision in it. (see Indiana Code §34-54-4-1.) So, cognovit provisions aren’t just unenforceable in Indiana, they’re illegal. How can two states with a common border disagree so vastly about the legal attributes of the cognovit note? To answer this, it’s important to understand what a cognovit note is. A cognovit provision is a legal device by which a debtor gives advance consent to a noteholder obtaining a judgment against him or her without prior notice or hearing. A cognovit is essentially a confession of judgment included in a note. Should there be a default, the holder can obtain judgment without giving the debtor notice or a hearing. This allows the noteholder to obtain a judgment without the delays inherent in having to serve notice on the debtor or dealing with any defenses the debtor might throw up. This makes the process much smoother and quicker for the noteholder. But, what about the debtor? Doesn’t this fly in the face of constitutional due process? Indiana thinks so, although several states, not just Ohio, think cognovits are okay. The states who agree with Ohio and consider cognovit notes legal are: Delaware, Virginia, Pennsylvania, and Maryland. Why would any borrower agree to this? Simply because a…
Blog, Real Estate
Title Commitments A-Z
So you’re buying your first apartment building or commercial property and you receive a copy of title commitment. Now what? A title commitment shows the current state of title as identified by the title examiner. It consists of three parts: Schedule A: This part of the commitment represents the basic facts of the transaction, including the effective date, the proposed insureds (purchaser and lender), the types and liability amounts of the policies to be issued, the estate being insured, how the title to the state is currently vested, and the legal description and address of the subject property. Schedule B-1: This section lists the requirements that must be met before a title policy will be issued, including any or all of the following items: releases of mortgages, releases of tax liens, entity or estate documentation, releases of judgments, correction deeds, and warranty deeds. Schedule B-2: This section lists the title insurance exceptions. The items not being insured by the title company will initially include standard exceptions, taxes not yet due and payable, and further burdens such as covenants, conditions, and restrictions, easements, and/or mineral reservations Obtain complete copies of each exception document identified in Schedule B-2. An experienced real estate attorney will perform a thorough analysis of the Title Commitment. With respect to Schedule A, the attorney will ensure the Owner’s name and Lender’s name are spelled correctly and the policy is the correct amount (which may vary depending on cross-collateralization). With respect to Schedule B-1, the attorney—if representing the owner—will ensure that all documents requested…
Blog, Business, Employment Law
“Announcing” Employee Departures – A Practical, Nitty-Gritty Guide To Minimizing Disclosures About Former Employees
Clients frequently ask me what the “best” way is to announce a particular employee’s departure from their organization, and – as you might expect – that question gets asked more often when the departing employee is leaving under “less than ideal” circumstances. Sometimes it’s because the employee has done something “sensationally” wrong (bad behavior towards coworkers or clients, using the company Internet for things you’d have been happy never to hear about, criminal activity, etc.); sometimes the employee’s transgressions are objectively ho-hum but they’re a long-tenured or popular fixture with colleagues or customers who undoubtedly will be upset by their exit. Whatever the specifics, the same risks and recommendations generally apply. Legal Considerations Indiana has no specific statute or regulation governing how to “announce” an employee’s departure. Indiana does have a “service letter law” that requires employers to provide certain information in writing to the departing employee, but only in response to a qualifying request from that employee. That’s not the sort of “announcement” most employers ask about (though you should be aware of that law and consult counsel if you ever receive anything you think might be a qualifying request from a former employee). Indiana also has a statute that gives a certain amount of immunity (read: “protection”) to employers who provide truthful information in response to requests from other prospective employers, but that too usually doesn’t apply to the situations causing employers to ask questions about “announcements.” Most often, employers want to know what they can/should tell the rest of their workforce and/or customers,…
Blog, Construction Law
Indiana is No. 1!
For the best infrastructure in the nation. Wait, what? CNBC’s America’s Top States for Business ranked Indiana’s infrastructure as No. 1 in the country. The rankings were put together using data from the Census Bureau, the Environmental Protection Agency and the U.S. Department of Transportation. The condition of each state’s roads, bridges, railways, waterways and ports, airports and other utilities were considered, along with how much of the country’s population is within a day’s drive of the state. Four major interstates criss-cross the Crossroads of America. Kentucky was ranked No. 2, just ahead of No. 3 Kansas and No. 4 Ohio. Tennessee and Georgia tied for No. 5. The data indicated that Indiana’s bridges are in good condition (just 6.2% in poor condition). That combined with Ohio River and Lake Michigan ports earned big point in the rankings. And in news that may surprise some Indianapolis drivers, just 9.4% of roads were listed as in unacceptable condition. Our first thought is if Indiana’s infrastructure is the best in the country, we’d like to see the worst. They are, in order: Rhode Island, Hawaii, Massachusetts, Maine and Alaska. CNBC rankings of overall business climate ranked Indiana No. 11 nationwide, with good rankings across the board but room for improvement in quality of life.
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