The Free Press - Volume 3, Fall 2009

REPORT FROM THE CHAIR

By Mark Sheriff, Esq.

I am happy to report that everything is going fairly well in the Creditor's Rights Section. We have some great educational programs lined up for the New York Convention. Additionally, the finances are in excellent shape and our membership and participation by our membership remains strong.

Notwithstanding the above we are always eager to get new volunteers to become active in the Creditor's Rights Section. I would encourage any member who is not active to review the various different committees and if you are interested in serving on one of them, please let me know and I will be glad to appoint you.

I know that a high percentage of our members also handle consumer claims. In that regard I would remind everyone that there has been a significant increase in the number of suits filed under the Fair Debt Collection Practices Act. Accordingly, I would encourage all of the members to remain vigilant and make sure that they have good policies and practices in place in their offices to avoid any potential problems under the FDCPA. There are ongoing recent developments and cases and everyone should try and stay up to date with those through educational seminars. Additionally, please be aware of the new "Red Flag" rules that are in the process of being implemented with respect to identity theft procedures, etc. Everyone should try and get up to speed on that issue as well. For those of you who remember the television series "Hill Street Blues" I will end my comments by saying "be careful out there".

JURISDICTION OVER PROPERTY HOLDER ENABLES JUDGMENT ENFORCEMENT AGAINST EXTRATERRITORIAL ASSETS

By: Jeffrey A. Carlino, Esq.

On June 4, 2009 the New York Court of Appeals issued a significant decision that expands the territorial reach of judgment creditors employing New York enforcement devices, and clarifies that non-party individuals and entities who are subject to personal jurisdiction in New York and hold a judgment debtor's property out-of-state are subject to New York's enforcement devices. The holding and impact of the Koehler v. The Bank of Bermuda Limited, 2009 NY Slip Op 4297; 2009 N.Y. LEXIS 1751 (New York Court of Appeals, June 4, 2009) decision can be best understood after a brief review of relevant New York law.

Generally, New York's judgment enforcement statutes (found in CPLR Article 52) lack express extraterritorial reach insofar and have no effect if issued to individuals or entities that are not subject to jurisdiction in New York. However, this does not mean that out-of-state assets in which a judgment debtor owns or has an interest are immune from enforcement. For instance, CPLR 5225(a) provides that judgment debtors who are subject to the jurisdiction of New York Courts can be compelled to deliver their non-exempt personal property for application to the judgment. Courts have interpreted this rule to hold true even if the property at issue is physically located outside of New York. For example, consider these facts:

  • A judgment is entered in New York by a Judgment Creditor ("JC") against Judgment Debtor ("JD")
  • JD remains subject to personal jurisdiction in New York
  • JD maintains a bank savings account at a New Jersey-only bank that is not subject to jurisdiction in New York.

Here, JC is unable to directly execute against the out-of-state accounts because both the accounts and the New Jersey bank are outside of and beyond the direct reach of New York's enforcement devices. Fortunately for JC, he is not without recourse: a CPLR 5225(a) turnover motion can be brought against JD in New York seeking to compel turnover of his out-of-state assets. Jurisdiction over the JD is sufficient to compel turnover despite a lack of in rem jurisdiction over the property itself and without jurisdiction over the property holder. A judgment debtor who ignores a turnover order is subject to being held in contempt of court.

While CPLR 5225(a) applies when property is in the possession of a judgment debtor, CPLR 5225(b) provides a corollary procedure when the property holder or some other non-debtor party - a "garnishee" - holds or may have some competing interest in the property. There, CPLR 5225(b) requires a judgment creditor to commence a "special proceeding" - an entirely new action, in effect, wherein the judgment creditor is a "petitioner" and the garnishee is a "respondent". Notice of the proceeding must be given to - but personal jurisdiction need not be obtained over - the judgment debtor. This procedure provides the garnishee with notice and an opportunity to raise and support its claimed interest, and an opportunity for the court to weigh, prioritize, and resolve the potentially competing claims. Because it is a new action, in effect, jurisdiction must be obtained over the garnishee.

In Koehler, the Second Circuit considered a CPLR 5225(b) turnover motion with a twist: the garnishee (the Bank of Bermuda, LTD or "BBL") in possession of the judgment debtor's property (stock certificates) and that claimed an interest in the property (collateral for some unspecified obligation) physically held the property in Bermuda. The judgment creditor brought a turnover motion in New York under CPLR 5225(b), and served one of BBL's affiliated entities in New York. Initially (and for nearly 10 years thereafter) BBL contested personal jurisdiction over it by the New York court.  When BBL eventually conceded the jurisdictional defense, just one question remained: under CPLR 5225(b) can a judgment creditor compel a garnishee subject to personal jurisdiction in New York to turnover property that is physically located outside of New York?  Considering the novel issue of New York law, the Second Circuit punted and certified the question to the New York Court of Appeals.

Upon review, the Court of Appeals answered the question in the affirmative, and held that post-judgment enforcement only requires jurisdiction over "persons", not property. In the absence of any express territorial limitations within New York's judgment enforcement laws, the Court considered legislation enacted in 2006 that clarified the scope of a post-judgment subpoena duces tecum.  Specifically, the legislation clarified that a post-judgment subpoena duces tecum served within the state - whether upon a judgment debtor or any other person or entity - requires the person or entity served to provide full disclosure ". . . whether the materials sought are in the possession, custody or control of the subpoenaed person, business or other entity within or without the state. "  CPLR 5224 (a-1). Thus, a non-party subpoena recipient in New York can now be compelled to deliver records into New York that are stored or maintained elsewhere.  From this amendment, the Court inferred legislative intent to give Article 52 enforcement devices "extraterritorial reach".

The Court also noted recent First Department authority that interpreted CPLR 5225(a) and confirmed that out-of-state property held by a judgment debtor is subject to turnover so long as the court has personal jurisdiction over the debtor. The Court held that jurisdiction over the property holding "person" - whether the debtor or a garnishee - is sufficient; jurisdiction over the property itself is unnecessary.

On the heals of and in tandem with the 2006 amendment of CPLR 5224 (a-1), the Koehler decision confirms the expanded scope of CPLR 5225(b) and the willingness of New York Courts to expand or at least expansively interpret the rights of judgment creditors. For judgment creditors, the decision will further complicate creative attempts to secrete or protect non-exempt assets by merely taking or placing them outside of the physical boundaries of New York State. Assets held by a judgment debtors' out-of-state, offshore, or foreign accomplices (witting or unwitting) are now undeniably vulnerable to execution so long as that person or entity is otherwise subject to personal jurisdiction in New York.

The decision has implications for garnishees with a jurisdictional presence in New York and who hold or have an interest in a judgment debtor's property outside of New York. Whether a mere out-of-state holder of property (i.e. a safety deposit box), a stake holder (i.e. a creditor holding collateral as security and to perfect an article 9 security interest), or an apparent co-owner (i.e. as with a joint bank account) such garnishees are now subject to the expanded reach of CPLR 5225(b), and the obligation, if a turnover order is issued, to deliver extraterritorial debtor property into New York for application to any outstanding judgment.

The holding and implications of Koehler will, no doubt, leave some interesting questions for future courts to resolve. For instance, if a garnishee is ordered to deliver out-of-state property into New York, who will bear the expense of transportation (the cost could be significant if the property is substantial, for instance, a luxury car)? Who will bear the risk of loss or damage to the property during transportation? What if the value of the property is inextricably reliant upon its out-of-state location, such as might be the case with co-op shares (personal property) for a Florida co-op (for instance, their execution sale in New York may be unlikely to generate a reasonable bidding pool or a fair sale price). CPLR 5240 may hold the key to some of these scenarios insofar as it allows "any interested person" to seek an order modifying any enforcement device. As always, judgment debtors and especially garnishees faced with undue risk, burden, expense or prejudice from a 5225(b) turnover proceeding should be aware of and willing to employ CPLR 5240 to seek whatever terms and conditions of turnover that may be necessary or appropriate.

Editor's Note: Jeffrey A. Carlino is an attorney with Goldberg Segalla LLP in the firm's Buffalo, New York office. He concentrates his practice in commercial and business litigation, debtor/creditors rights, collections, bankruptcy and personal injury litigation. Mr. Carlino can be reached at: jcarlino@goldbergsegalla.com

SUCCESSOR LIABILITY

By: Robert M. Singer, Esq.

"The mere transfer of the assets of one corporation to another corporation or individual generally does not make the latter liable for the debts or liabilities of the first corporation except where the purchaser expressly or impliedly agrees to assume the obligations, the purchaser is merely a continuation of the selling corporation, the companies merged or the transaction is entered into fraudulently to escape liability.'' 19 C.J.S. 314, Corporations § 657 (1990); see also Libutti v. United States,178 F.3d 114, 124 (2d Cir. 1999). (Under common law). (There may be successor liability imposed by statute, such as for environmental claims).

1. EXPRESS OR IMPLICIT ASSUMPTION OF OBLIGATIONS

Express assumptions are clear assertions that can be found in a written document such as a contract or a letter, or, under appropriate circumstances, in a statement. Motorsport Engineering, Inc. v. Maserati, S.p.A. , 183 F.Supp.2d 209 at 220 (D. Mass, 2001). The mere fact that the new corporation has voluntarily paid some of the debts of the old corporation is no ground for inferring that it assumed the latter's debts. Glynwed, Inc. v. Plastimatic, Inc. 869 F. Supp. 265 at 276 (D. New Jersey, 1994). At least one court has held that contractual indemnity for liabilities and assumption of liabilities under the doctrine of successor liability are very different. Vine Street v. Keeling ex Rel. Estate of Keeling, 460 F.Supp.2d 728 (E.D. Tex. 2006), Footnote 3. The Court in Vine Street looked for specific language evidencing an intent, by purchasing company, to assume the obligations of the selling corporation. In evaluating if there is an implicit assumption of obligation (liabilities) of another a possible predecessor corporation, courts generally consider whether or not the buyer's assumption of liabilities are ordinarily necessary for the uninterrupted continuation of the seller's business. See e.g. Kenneth Carroll, et al. v. LeBoeuf, Lamb, Green & MacRae, L.L.P. , et al. , 392 F. Supp. 2nd 621 at 627 (S.D. N.Y. , 2005).

As for implied liability, "[w]hile no precise rule governs the finding of implied liability, the authorities suggest that the conduct or representations relied upon by the party asserting liability must indicate an intention on the part of the buyer to pay the debts of the seller. " Ladjevardian v. Laidlaw-Coggeshall, Inc. , 431 F.Supp. 834, 839 (S.D.N.Y.1977), citing 15 Fletcher, Cyclopedia of Law of Private Corporations § 7124 (1961 Rev. Vol. "The presence of such an intention depends on the facts and circumstances of each case. " Id.

2. MERE CONTINUATION

The issues of whether a purchaser is a mere continuation of the selling corporation is a question of fact. Patin v. Thoroughbred Power Boats, Inc. , 294 F.3d 640, 649 (5th Cir. 2002). There are two theories used to determine whether the purchaser is merely a continuation of the selling corporation. "Under the common law mere continuation theory, successor liability attaches when the plaintiff demonstrates the existence of a single corporation after the transfer of assets, with an identity of stock, stockholders, and directors between the successor and predecessor corporations. '' Graham v. James, 144 F.3d 229, 240 (2d Cir.1998). Under the "continuity of enterprise'' theory, a mere continuation exists "if the successor maintains the same business, with the same employees doing the same jobs, under the same supervisors, working conditions, and production processes, and produces the same products for the same customers. '' B.F. Goodrich v. Betkoski, 99 F.3d 505, 519 (2d Cir. 1996). Other courts have found five traditional factors to consider in mere continuation analysis: (1) the divesting corporation's transfer of assets, (2) payment by the buyer of less than fair market value, (3) continuation by buyer of the divesting corporation's business, (4) common officer instrumental in the transfer, and (5) an inability of the divesting corporation to pay its debts after the asset transfer). K.C.1986 Ltd. Partnership v. Reade Mfg.472 F.3d 1009 at 1025 (8th Cir. 2007).

The extent of similarity of ownership between the original corporation and successor corporation for successor liability to attach may vary by state. Similarly, the requirements and extent of the assets transferred, to prove successor liability, may vary by state.

3. DE FACTO MERGER

A de facto merger occurs when a transaction, although not in form a merger, is in substance "a consolidation or merger of seller and purchaser. " Schumacher, 59 N.Y.2d at 245, 451 N.E.2d at 198, 464 N.Y.S.2d at 440. The hallmarks of a de facto merger include: [1] continuity of ownership; [2] cessation of ordinary business and dissolution of the acquired corporation as soon as possible; [3] assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and,[4] continuity of management, personnel, physical location, assets and general business operation. Id. , 286 A.D.2d at 574, 730 N.Y.S.2d at 71 (citing Sweatland v. Park Corp. , 181 A.D.2d 243, 245-46, 587 N.Y.S.2d 54, 56 (4th Dep't 1992).

Under New York law, "[n]ot all of these elements are necessary to find a de facto merger. " Id. , 286 A.D.2d at 574-75, 730 N.Y.S.2d at 71. Some Courts have held that a de facto merger requires some continuity of ownership. For example, Pennsylvania law holds that a "de facto merger or consolidation cannot exist unless the shareholders of the predecessor become shareholders of the successor through the successor's use of stock in payment for the predecessor's assets. " Glynwed, Inc. v. Plastimatic, Inc. , 869 F Supp. 265, 277 (D.N.J. 1994). A transaction in which a corporation acquires the assets of another corporation by (1) purchasing the assets of the seller with its stock; (2) assuming the liabilities of the seller; and (3) continuing the operations of the seller through itself but dissolving the seller would likely be treated as a de facto merger. Cf. Beck v. Roper Whitney, Inc. , 190 F.Supp.2d 524, 535 (W.D.N.Y.2001) ("The classic example of a de facto merger is a transaction in which the purchasing corporation pays for the acquired assets with shares of its own stock.

While not dispositive, the factor that typically tips the scales in favor of finding a merger is continuity of ownership, usually taking the form of an exchange of stock for assets. Crawford Harbor, 661 F.Supp, at 884. Similarly, under Tennessee Law, the court stated that a de facto merger has occurred when there is a sale of substantially all of one corporation's assets in exchange for the stocks and bonds of the purchasing corporation. See Jennings Neff & Co. v. Crystal Ice Co. , 159 S.W. 1088, 1089-90 (Tenn.1913). However, under New Jersey law a broader standard of successor liability deemphasizes continuity of shareholder interest. See, e.g. , Woodrick v. Jack J. Burke Real Estate, 306 N.J. Super. 61, 74-77, 703 A.2d 306 (App. Div. 1997). This line of cases elevates the intent of the contracting parties to primary importance, and may disregard entirely whether the selling corporation continues in business, see Koch Materials Co. v. Shore Slurry Seal, Inc. , 205 F. Supp. 2d 324, 337 (D.N.J. 2002).

4. FRAUD

Absent state law to the contrary, common law fraud for successor liability should provide substantive rights to creditors, in addition to rights under a states Fraudulent Transfer Act. Federal Rule of Civil Procedure 9(b) provides: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. " Fed.R.Civ.P. 9(b). Therefore, at least under federal procedure law, the plaintiff must plead with specificity. This common law exception provides for successor liability if "the transaction is entered into fraudulently to escape liability." As such, there appear to be three requirements:

a. proof of actual fraud (the rule seems to preclude proof of "constructive fraud")

b. the fraud occur when the transaction was entered into (if there is a contract, the time of contract is the relevant point in time)

c. the transaction occur for the fraudulent purpose of escape liability

Depending on state law, one may argue that this exception applies if there is a transaction with fraudulent intent to escape liability.

The Ohio Supreme Court identified inadequate consideration and lack of good faith as two indicia of fraud for the purposes of imposing successor liability. See 67 Ohio St.3d at 349, 617 N.E.2d 1129 (citing Turner v. Bituminous Cas. Co. , 397 Mich. 406, 244 N.W.2d 873, 887 (1976).

"[A] transaction is void for lack of good faith when 'one or more of the following factors is lacking (1) an honest belief in the propriety of the activities in question; (2) no intent to take unconscionable advantage of others; and (3) no intent to, or knowledge of the fact that the activities in question will hinder, delay, or defraud others. The term "good faith" does not merely mean the opposite of the phrase 'actual intent to defraud. ' ' "

Id. , quoting Southern Industries, Inc. v. Jeremias, 66 A.D.2d 178, 182, 411 N.Y.S.2d 945, 949 (2d Dept.1978).

The court should consider the sufficiency of consideration paid for the transfer of the predecessor's assets or product line, as well as any other indicia of fraudulent intent in the creation of the second entity. Material Supply Int'l, Inc. , 62 F.Supp.2d at 19-20; Valley Finance v. United States, 629 F.2d 162, 172 (D.C.Cir. 1980).

Fraudulent intent can be inferred from certain indicia called 'badges of fraud. ' Some of the badges from which fraudulent intent can be inferred include: 1) the transfer of property by a debtor during the pendency of a suit; 2) a transfer of property that renders the debtor insolvent or greatly reduces his estate; 3) a series of contemporaneous transactions which strip the debtor of all property available for execution; 4) secret or hurried transactions not in the usual mode of doing business; 5) any transaction conducted in a manner differing from customary methods; 6) a transaction whereby the debtor retains benefits over the transferred property; 7) little or no consideration in return for the transfer; and 8) a transfer of property between family members. When there is a concurrence of several badges of fraud an inference of fraudulent intent may be warranted. However, no one badge of fraud constitutes a per se showing of fraudulent intent. Rather, the facts must be taken together to determine how many badges of fraud exist and if together they constitute a pattern of fraudulent intent. See Indianapolis Ind. Aamco Dealers Adver. Pool v. Anderson, 746 N.E.2d 383, 390-391 (Ind.Ct.App.2001). In addition, in many, if not all jurisdictions, fraud must be proven by clear and convincing evidence. Garrigus v. Viarengo, 112 Conn. App. 655 at 660 (2008)

5. THE PRODUCT LINE EXPECTION

Many (but not all) states have adopted rules expanding successor liability in products liability cases. See Dawejko v. Jorgensen Steel Co. , 290 Pa.Super. 15, 434 A.2d 106, 111 (Pa. Super. 1981); Ramirez v. Amsted Industries, Inc. , 86 N.J. 332, 431 A.2d 811, 824-825 (N.J. 1981); see also Ray v. Alad Corp. , 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977). Under the so-called "product line" theory, the successor corporation remains strictly liable in tort for the defective products of its predecessor. Berg Chilling Systems, Inc. v. Hull Corp. .435 F.3d 455 at 465 (3rd Cir. 2006) (emphasis added).

Strict liability should be imposed upon a successor to a manufacturer if three circumstances were shown: '(1) the virtual destruction of the plaintiffs remedies against the original manufacturer caused by the successor's acquisition of the business, (2) the successor's ability to assume the original manufacturer's risk-spreading rule, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer's good will being enjoyed by the successor in the continued operation of the business. Kradel v. Fox River Tractor Co. 308 F.3d 328 (3rd Cir. 2002).

CONCLUSION

The first basic common law theories of successor liability, in collection cases (without a personal injury component) are based on an express or implied assumption of liabilities, mere continuation of the predecessor corporation, a de facto merger, and a fraudulent transaction. Many of the theories of recovery have similar elements. In addition, the general elements for recovery remain the same in each state, however the specific standards for recovery vary by state, so it is vital to review state law to determine the proof needed to make out a prima facie case.

Editors Note: Robert M. Singer is a principal of Law Offices of Robert M. Singer, LLC in Hamden, CT. Mr. Singer can be reached at 203-248-8278

SPOLIGHT ON THE PRESIDENT: RICK THOMAS

Interview by Liviu Vogel, Esq.

Full Name: Ernest Vincent Thomas, III

Residence/Hometown: Cincinnati, OH

Education: K-6 St. Ursula Villa, Cincinnati, OH (1971); High School Covington Latin School, Covington, KY (1975); Undergrad (BA) Thomas More College, Crestview Hills, KY (1979); JD University of Cincinnati (1982).

Family: Wife, Kim. 4 Children: Amanda 23, Richard 22, Holli 18, William 8.

Areas of practice and specialties: Creditors Rights, Commercial and Consumer Collections.

What year did you join CLLA? I was in College, probably around 1977.

What other offices have you held in the CLLA?
Executive Council and all offices of Young Members (Chair, 1998 - 1999); Executive Council and Chair Midwest Region (2002 - 2003); Co-chair Consumer Committee (2006 - 2009); Recording Secretary (2002 -2003) Attorney Board Member (2004 - 2007).

Tell us about your life activities away from the office:
I like to spend time with my son, William. I am currently Treasurer of his Cub Scout Pack, and like to help at Den meetings. I teach First Grade Sunday School, and really enjoy working with the students to establish a good foundation for their faith. My hobbies (which I seem to get less time for) include golf, reading, cooking and wine making.

Tell us about the path you followed within the League that helped to get you to this position:
I started by getting involved with Young Members. In the late 1980's and early 1990's, YMS did a lot at the summer meetings, family parties, fun run and mini Olympics, which helped establish a lot of friendships, and got newer members involved socially. Working through the chairs of YMS, I got a good look at the governance of the League, as YMS was (and is) very active in education and social activities at all the League meetings. After service on the Board as YMS representative, I saw the opportunity to help serve in a national capacity. Over the years, I guess I've just tried to fill whatever gap there may be to help with leadership.

What qualities do you feel that you will bring to the job of President of the CLLA? While I feel I have a good grounding in the recent history of the League (last 25 years or so), I think I recognize the need for the leadership to be open to new ideas - both opportunities and directions, to keep the organization vital and relevant in the industry. I think I have the ability to preserve what is important, while encouraging others to have the fortitude to try something new.

What goals would you like to achieve for the League during your term in office?
By far, carrying forward strategic planning and implementation.

What advice would you give to young attorneys who join the League, and who aspire to a leadership role such as yours?
Determine whether or not you can afford the time to volunteer, and, if so, look for a committee or council to serve on. While we are fortunate to have a lot of volunteers in the CLLA, many have numerous other time commitments. The leaders who give a little extra time and effort are easily recognized for their achievements, and will soon find their talents to be in great demand.

When you're not practicing law, or tending to League matters, what do you do for fun and relaxation?
Lose golf balls.

If you did not become a lawyer, what do you think would have become your life's work?
Probably a youth counselor or teacher.

What one thing do you think we would be surprised to know about you that most people don't already know?
I meet with a men's group twice a month to pray and reflect.

What is your favorite quote or "words to live by?"
"Our lives begin to end the day we become silent about things that matter," Martin Luther King, Jr.

What is your favorite:

Car: 1959 Cadillac Convertible, Red with white interior.
Food: Yes
Vacation spot: Traverse City, Michigan
Actress/Actor: Sean Connery
Movie: The Borne (all of them)
Holiday: Christmas
Musical group/Singer: Many
Book: The Trilogy of the Rings
Sports figure: None

SPOLIGHT ON BEST FEATURE ARTICLE AWARD WINNER: ROBERT L. POLLAK

Interview by Eva Engelheart, Esq.

Full Name: Bob Pollak

Residence/Hometown: San Rafael, California

Education: B.A. , UCLA (1975); J.D., Hastings College of the Law (1978).

Work History: Partner, Glassberg, Pollak & Associates, San Francisco.

Areas of practice and specialties: Commercial Collection and Litigation; Construction litigation and mechanic's lien enforcement; enforcement of judgments; creditor representation in bankruptcy. I am certified as a specialist in Creditors' Rights by the American Board of Certification and serve on the Board of Directors of that organization.

Family: I am married to Ellen Judell and we have one son, Jake, age 20, who is a Junior at UC Santa Barbara.

What year did you join the CLLA? 1982

What offices or committee chairmanships have you held in the CLLA?
I am presently serving on the Board of Directors of the Western Region.

Tell us about your home life away from the office:
Ellen and I enjoy traveling, fine dining, concerts, movies and playing with our Portuguese Water Dog and Golden Doodle.
What was your reaction when you were informed that the Free Press judges selected your article, "The Demise of the Carrot and the Stick in California" as the winner?
I was surprised and honored.

Have you written other articles besides the writing you have done for CLLA?
No, this was my first article.

Have you received other recognition for the writing you have done?
I was selected to the Hastings Constitutional Law Quarterly on the basis of a writing competition and was a Note and Comment Editor for that law journal in my third year of law school.

What would your advice be to other League members who may be thinking of submitting an article to the Free Press for consideration for the Best Feature Article Award?
It is a great way to delve more deeply into topics that affect our law practices and share ideas with colleagues. Although finding the time to research and write is challenging, it is well worth the effort.

When you're not practicing law, or tending to League matters, what do you do for fun and relaxation?
I play golf, read, work out and take our dogs to the park.

If you did not become a lawyer, what do you think would have become your life's work?
I have no idea since I have known that I wanted to be a lawyer since Middle School.

What is your favorite quote or "words to live by"?
Treat others the way you would want to be treated and always try to understand the other person's perspective.

Did you have any role models when you were growing up and in your career in practicing law? If so, who are they and why were they your role models?
My Dad was an influential role model because he insisted upon excellence and was honest and ethical in his business dealings.

If you could have dinner with one famous person in history, and one famous person alive today, who would they be, and why?
Lenny Bruce because he was a comic genius well ahead of his time and Barack Obama because it would be exciting to discuss all of the issues and challenges facing our country at the present time.

What is your favorite:

Car: Astin Martin DB9
Food: Osso Bucco
Vacation spot: Italy
Actress/Actor: Meryl Streep/Phillip Seymour Hoffman
Movie: Pulp Fiction/The Big Lebowski
Holiday: Labor Day
Musical group/Singer: Ronnie Earl & the Broadcasters/Diana Krall
Book: The Autobiography of Malcolm X
Author: Lee Child
Sports figure: Tiger Woods

"THE NEW KID ON THE BLOCK": THE COMPLEX COMMERCIAL LITIGATION COMMITTEE

By: Walid J. Tamari, Esq.

In 2009, the CLLA established a new practice group committee, the Complex Commercial Litigation Committee (CCLA). The Committee is comprised of attorneys across the country who practice in the area of complex commercial litigation. Complex commercial litigation, as defined by the CCLA, is "litigation involving contested commercial breach of contract, business torts and other matters concerning business disputes. " The CCLA was formed to provide a forum for league practitioners to brainstorm, attend education seminars and network. To accomplish these goals, the CCLA intends to hold committee conferences at the League's Chicago and New York annual meetings.

The CCLA is proud to announce that its first conference will be held at the New York meeting on November 12, 2009, from 9:30 a.m. to noon. Join us for breakfast networking and great speakers. Three speakers will discuss commercial litigation trends, describe the subject matter of cases presently being litigated across the country, and explain the financial and accounting impact that these types of lawsuits impose on party litigants. Richard P. Romeo, a partner with the New York law firm of Salon Marrow Dyckman Newman & Broudy, LLP, will give a presentation called "How to Protect Your Business When Employees Leave the Company. " Alan Schachter, a business valuation partner from the accounting firm of Citrin Cooperman, will present "How to Cross-Examine a Financial Expert. " Walid J. Tamari, a partner with the Chicago law firm of Tamari & Blumenthal, LLC will present "Legal Issues Relevant to Business During Tough Economic Times. "

Editors Note: Walid J. Tamari, Esq. is Chair of the Complex Commercial Litigation Committee and a partner in the firm of Tamari and Blumenthal in Chicago, Illinois.

MEMBERSHIP COMMITTEE REPORT

By: Doug Evans, Esq.

The Committee welcomes suggestions as to how to increase our membership and participation in the Section. Please provide the Doug Evans, Membership Committee Chairman, with the names and contact information of any CLLA members that you believe would be interested in or would benefit from membership in the Section. Suggestions and prospective member information should be submitted to Doug at: dse@evansgreenlaw.com.

Editor's Note: Doug Evans is a principal of Evans & Green in Springfield, MO and is a board certified creditors rights attorney as certified by the American Board of Certification. Accredited by the American Bar Association. Neither the Missouri Supreme Court nor Missouri Bar review or approve certifying organizations or specialist designations.

 WASHINGTON LEGISLATIVE REPORT

Excerpts from recent Washington Hot News distributions

By David P. Goch, Esq.

Check in at the CRS meeting in New York for any updates.

Editor's Note:  David P. Goch, Esq. , is the CLLA Washington Legislative Counsel.

CRS PROMOTION AND MARKETING COMMITTEE

By: Nicholas D. Krawec, Esq.

Check in at the CRS meeting in New York for any updates.

Editor's Note: Nicholas D. Krawec, Esq. , CRS Secretary and Chair of the CRS Marketing and Promotion Committee, is a partner in Bernstein Law Firm, P.C. , in Pittsburgh, PA, where he concentrates his practice in the fields of creditors' rights, collection and commercial litigation throughout the Commonwealth of Pennsylvania.

REPORT ON THE STRATEGIC PLANNING AND LEADERSHIP MEETING

By: Beau Hays, Chair

The League's Strategic Planning process took its next step forward at meeting held August 7 - 9 in Baltimore. The participants wrapped up several of the Strategic objectives for 2008-09 and developed six new strategic goals for 2009-10.

The new strategic goals are:

  1. Implementation of EVP Control of all Core Functions of CLLA and EVP supervision, coordination and leverage of volunteers.
  2. Maximize member benefits to retain and attract new members
  3. Consolidate finances and financial management.
  4. Establish plan to organize CLLA under practice areas
  5. Re-examine and optimize functionality and role of National Committees, Sections and Regions
  6. Coordinate and enhance branding and marketing

As with last year's process, members volunteered to serve as the Champion for each of these goals. During the ensuing three months, these members have worked with their teams to get started on the tasks necessary to achieve the goal.

There will be a review and re-load session in conjunction with the New York meeting on November 12 at 8:00 am. At that time, the Champions for each goal will report on the steps taken so far and challenges encountered along the way.

Editor's Note: Beau Hays is a partner in Hays & Potter, PC in Atlanta, GA.

EDUCATION COMMITTEE REPORT

By: Lorna Walker, Esq. , Jordan Humphries, Esq. and Ken Rozich, Esq.

The Education Committee is very pleased with the education programs that are planned for the 89th Annual New York Meeting scheduled for November 12, 2009 - November 15, 2009 and is currently working on the programs for Chicago 2010.

For the New York meeting, the CRS is continuing their litigation skills programming and will present a seminar called "The Amazing Case" by Mike Cash and Tom Mauet. These renowned trial lawyers and instructors will invigorate the way you approach and execute litigation and will show you how to persuade a jury when your fight for justice involves a seemingly emotionless commercial case. These speakers will demonstrate how to present both the complexities and the mundane aspects of a commercial matter in an appealing and engaging manner. From either side of the bar, you will gain tips to educate and persuade the jury. Their direct and cross-examination of the financial expert alone will return dividends on your CLE investment. Bettie Sousa, of Smith Debnam Narron Drake Saintsing & Myers, LLP, will present a program called "Trials and Tribulations. Tips on Procedure, Evidence, and Substantive Law". The presenter, who has a wealth of experience in state and federal courts, including bankruptcy courts, at both trial and appellate levels, will provide tips on trial procedure and evidence and every litigator should attend this program.

Finally, the CRS will present a program called "Forget the Money, Save Your Law License!" The panel includes Jonathan Greystone of Spector, Gadon & Rosen, PC, Emil Hartleb of the Commercial Collection Agency Association, Manuel Newburger of Barron, Newburger, Sinsley & Wier, PLLC, and Alan Weinberg of Weltman, Weinberg & Reis, Co., LPA. The four panelists will talk about keys issues that are important to adhere to and be aware of while practicing collections law. You will learn what to do if the collection agency is fired by the client and whether it creates a potential conflict for the attorney that is handling the matter. You will hear what might happen when a collection agency fails to pay a client and whether the law firm can be held responsible.  You will discover whether an attorney must defend a client on a counterclaim under the contingent fee arrangement  and whether a conflict arises if the attorney is also named in the suit. These issues and more will be discussed by the panelists so you will not want to miss this program.

For the 2010 Chicago meeting, the CRS will present a program by Professor William Henning on the complexities of Article 9. Professor Henning will explore the ins, outs, tricks, and traps of Article 9 and will explain practical steps you can take to safeguard the integrity of your clients' transactions. He also will provide an overview of the proposed changes to Article 9.

We are still in the planning stages right now for programs for the 2010 Chicago and 2010 New York meetings and are currently looking for speakers and programs. As always, the Committee welcomes input on past, present, and future education programs from all CRS members. We encourage you to approach us with an idea for a program or to volunteer to speak at an upcoming convention. Speaking at a convention is a great way to raise your profile in the League, which can lead to more business for you and your firm. Please feel free to contact one of us with your ideas.

Editor's Note: Lorna Walker, Esq. is a principal in the firm of Sweet & Walker in San Francisco, CA, specializing in commercial collection. The firm handles all collection matters, including insurance premiums collections, trucking claims, etc. Lorna has been practicing for 15 years and has specialized in collections litigation for the last 13 years. Jordan Humphries, Esq. is a partner in the firm of Ford Parshall & Baker LLC where he practices in the area of collections, bankruptcy and creditor's rights, insurance subrogation, foreclosures, and commercial litigation. Jordan joined the CLLA in 2003 and is on the Executive Committee and Education Committee of the Creditor's Rights Section, and was formerly on the Executive Committee and Education Committee of the Young Member's Section. Ken Rozich, Esq. is a principal in the firm of Jacobs & Rozich, LLC in New Haven, CT where he practices in the area of commercial litigation, construction law, creditor's defense, and personal injury.

NEWSLETTER COMMITTEE REPORT

By: Liviu Vogel, Esq. and Eva Engelhart, Esq.

The newsletter is circulated three times per year electronically in the Spring, Summer and Fall (and via fax for those rare few who are not online). Liviu Vogel and Eva Engelhart are Co-Chairs of the Committee. This issue features the annual newsletter award winner for The Best Feature Article. We give special thanks to our judges of the Best Featured Article Award this year: Jeffrey Maidenbaum, Kevin Posen and Britt Rudman. The award and gift will be presented at the CRS meeting in New York.

Members, including members of the Executive Council, are encouraged to submit articles of interest or letters to the editor for inclusion along with a short bio for publication.

Editor's Note: Liviu Vogel, Esq.is a partner in the New York City based law firm of Salon Marrow Dyckman Newman & Broudy LLP. He heads the commercial collection department of his firm and his practice includes civil and commercial litigation, construction, real estate, and corporate transactions as well as business formations. Eva Engelhart, Esq.  has been an associate with Ross Banks for 11 years. She focuses her practice on commercial and business litigation, primarily commercial collections. Eva's practice includes representing clients through trial involving collection of business accounts, contract payments, note payments, and post-judgment collections. She received her J.D. from the University of Houston Law Center in 1996 and received her B.A. from Brandeis University in 1993, Magna Cum Laude.

LETTERS TO THE EDITOR

Letters or comments can be sent to LVogel@salonmarrow.com. In case you haven't received the word, The Free Press has instituted a "Letters to the Editor" column. If you don't want to take time out of your busy schedule to do research for a scholarly article, if you have a suggestion, recommendation, or constructive criticism to direct to the Section leadership or the Free Press editorial board, or if you just want to "vent" (in a non-abusive manner, of course), you  now have a forum. You can submit a letter any time it suits your fancy, and you need not wait until just prior to the publication of an edition of the Free Press. Submissions will be kept on file for future publication.

NOMINATIONS SOUGHT FOR 2010 AWARD OF EXCELLENCE

The Creditors' Rights Section of the Commercial Law League of America is seeking nominations for its Award of Excellence, which was established to recognize outstanding contributions in the field of law affecting creditors' rights. The first recipient of this award, in 2005, was Professor James J. White who, along with Robert Summers, published the most widely recognized treatise regarding the Uniform Commercial Code. The recipient must be a lawyer, legislator, professor of law, or judge, whose work has substantially and positively made an impact on creditors' rights. The recipient will be selected for presentation of the Award at the Annual Meeting of the League held in Chicago in April, 2010. Nomination forms are available at www.clla.org.

CALENDAR OF EVENTS

November 12, 2009 - November 15, 2009
89th Annual New York Meeting: Sheraton New York Hotel and Towers

April 29, 2010 - May 2, 2010
80th Annual Chicago/Spring Meeting: Westin Michigan Avenue, Chicago, IL

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