DIVIDENDS

USINESS INFORMATION FOR CLIENTS AND FRIENDS OF SHUMAKER, LOOP & KENDRICK, LLP
SUMMER 2010

KNOW THYSELF AND IT WILL WORK OUT:

Workout of Commercial Real Estate Loans In Today’s Economy

By: Moses Luski

I. THE PROBLEM: Lack of Liquidity in the Banking System Results in a Tightening of Credit and Creates a Severe Recession

The unprecedented recession that befell the American economy commencing in the Fall of 2007 and from which we are just beginning to emerge has created extraordinary problems for all commercial enterprises that rely on the use of credit to conduct business operations. The present calamity manifested itself in a bank liquidity freeze which reduced lending to a trickle. The lack of credit in turn affected general economic activity, reducing the revenue streams which businesses rely upon to pay existing indebtedness, including indebtedness secured by commercial real estate. This destabilizing feedback loop has put both prudent and recklessly managed businesses under extreme economic pressure which in most cases could not have been anticipated. The discussion which follows deals with the workout of loans secured by commercial real estate.

II. HOW THE PROBLEM IS ADDRESSED: Self-Knowledge and Succinct Analysis Establishes a Game Plan for the Favorable Workout of Existing Commercial Indebtedness

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IS YOUR COMPANY COMPLIANT?

Antitrust Enforcement to Increase Significantly

By: Michael M. Briley

The current Administration in Washington, D.C. has announced that it intends to significantly increase the level of federal investigation and review of antitrust issues ranging from unlawful collusion to mergers. The heads of both federal enforcement agencies (the Department of Justice and the Federal Trade Commission) have already increased dramatically their agency’s efforts in this area. In 2009 alone, the Department of Justice collected over $1 billion in fines for antitrust violations and prosecutions have resulted in prison sentences for a number of executives. With Congress approving the ten year reauthorization of the Antitrust Criminal Penalty Enhancement and Reform Act (”ACPERA”) this year, criminal prosecutions for antitrust violations are expected to increase dramatically. The ongoing civil litigation suit liability cost to companies that violate the antitrust laws will likely also increase dramatically in 2010-2011. Accordingly, it is more important now than perhaps ever before that companies have in place a good corporate antitrust compliance program that meets all of the required elements for federally qualified compliance programs.

A properly designed and implemented corporate antitrust compliance program has the benefit not only of educating employees regarding lawful and unlawful conduct (thereby helping to protect the sponsor company from criminal investigation and subsequent civil suits) but, moreover, properly qualified programs will serve to substantially reduce any fines awarded against a company which is found to have violated the law.

Shumaker, Loop & Kendrick, LLP has substantial experience in designing and implementing qualified antitrust compliance programs for its clients. While certain elements of each compliance program are mandated (for example, the creation of a compliance policy and written direction for employees, training and audit protocols, etc.), our firm has been successful in working with its clients to design compliance program for each client that meets not only its legal objectives, but its budget as well.

We would be happy to put our over 35 years experience in the area of criminal and civil antitrust law to work for you.

Michael M. Briley is a partner in Shumaker’s corporate practice group in the firm’s Toledo Office. His principal areas of practice are antitrust and trade regulation and transportation law.

Joseph (Jack) Santaniello
First Citizens Bank Building
128 S. Tryon Street, Suite 1800
Charlotte, NC 28202-5013
Phone 704-375-0057 Ext. 2141
Fax 704-332-1197
jsantaniello@slk-law.com
www.slk-law.com
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ANOTHER RED FLAG FOR THE RED FLAGS RULE

By: Jack Santaniello

Last month, the Federal Trade Commission (FTC) announced that enforcement of the anti-fraud identity theft rule, otherwise known as the Red Flags Rule, would again be delayed. The rule became effective on January 1, 2008 with full compliance for all covered entities originally required by November 1, 2008. The FTC has delayed enforcement several times - the most recent deadline prior to this extension was June 1, 2010. The new enforcement date is December 31, 2010.

The rule requires creditors to develop programs identifying, detecting and responding to the warning signs of identity theft. These programs work by responding to patterns, practices or specific activities that could indicate identity theft - hence, the term “red flags”. A “creditor” is defined as any entity that regularly extends, renews or continues credit; any entity that regularly arranges for the extension, renewal or the continuation of credit; or any assignee of an original creditor who was involved in the decision to extend, renew or continue credit.

For a more detailed discussion of the Red Flags Rule, please see the Winter 2009 Dividends article “Are You Ignoring Red Flags?“.

The FTC also provides guidance through materials posted on their website, and a compliance guide for businesses here.

IS IT NOW SAFE TO TWEET?

Press Release From The Federal Trade Commission Dated June 24, 2010

Twitter Settles Charges that it Failed to Protect Consumers’ Personal Information; Company Will Establish Independently Audited Information Security Program

Social networking service Twitter has agreed to settle Federal Trade Commission charges that it deceived consumers and put their privacy at risk by failing to safeguard their personal information, marking the agency’s first such case against a social networking service.

The FTC’s complaint against Twitter charges that serious lapses in the company’s data security allowed hackers to obtain unauthorized administrative control of Twitter, including access to non-public user information, tweets that consumers had designated private, and the ability to send out phony tweets from any account including those belonging to then-President-elect Barack Obama and Fox News, among others.

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JACK’S PRACTICE AREAS

The contents of this Dividends newsletter are offered as general information only and are not intended for use as legal advice on specific matters. IRS Circular 230 Notice: We are required to advise you no person or entity may use any tax advice in this communication or any attachment to (i) avoid any penalty under federal tax law or (ii) promote, market or recommend any purchase, investment or other action.

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