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2020 Virtual Fall Annual Meeting and Education Conference
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October 14-15, 2020
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ACIC Private Notes                     September 2020
Welcome to the September 2020 edition of the ACIC Private Notes Newsletter! This edition brings you:
  • A note from our 2020 ACIC Fall Conference co-chairs, Patti Boss (Voya) and Michael Robson (Greenberg Traurig)
  • An article by Chiraag Kumar (MetLife) providing a summary and discussion regarding force majeure provisions and related investor concerns
  • The bi-annual edition of the ACIC Committee Reports courtesy of Mikhel Schecter (Paul, Weiss, Rifkind, Wharton & Garrison LLP)
  • Recent case law summaries from the New England Region, contributed by Kevin Braun and Greg Norman (Morgan Lewis) and from the Southern Region, provided by Jeff Dutson (King & Spalding LLP)

In Memoriam
Linda Ingols Dole passed away on August 5, 2020.  Linda had a remarkable career, and was highly respected Fellow of the ACIC. She will be dearly missed by all who knew her.  A celebration of Linda's life took place on Sunday, August 16 at the Bradshaw-Carter in Houston, Texas. Click here to read Linda's obituary.

ACIC 2020 Fall Conference
On behalf of the Board of Trustees and the Education Committee, we invite you to join us for the ACIC's 2020 Virtual Fall Annual Meeting and Education Conference on October 14
th and 15th. This inaugural virtual event will explore a variety of issues facing us in the current unique environment in the private placement world.  We have assembled a great list of distinguished speakers and moderators that include both external and internal specialists and practitioners. We will start with a discussion of public-private partnerships, then transition to a market update that will include current NAIC developments and the LIBOR transition, and then finish the educational part of the day with a panel that explores the ethical obligations and challenges in working from home.  We will later gather for the first ever virtual ACIC Wine Tasting where we can network with our colleagues over a glass of vino from the comfort of our own homes! Day Two will start with a panel on both the short-term and long-term impacts of COVID-19 on the private placement market and then move to a panel discussing the challenges to consider in third-party asset management. We will conclude the conference with a discussion on diversity in the workplace and policies we as lawyers can pursue to promote inclusion.  We are very much looking forward to this conference and getting together with our colleagues and friends, particularly after the Spring Conference was canceled. Please keep an eye out for the full agenda and, in the meantime, register.  Please note that the wine tasting registration closes on September 28 in order to give sufficient time for delivery of wines. We hope to see you (virtually) next month. 

Patti Boss and Mike Robson

Force Majeure Clauses

As the adverse impact of the coronavirus pandemic continues to be felt across sectors, project finance investors have begun to revisit force majeure clauses due to recent increases of notices of force majeure being provided by project finance companies. Clichere to review a discussion of potential investor concerns. 

Bi-annual Committee Reports

We commend each of the members of the ACIC's Committees for their ongoing efforts to keep the College educational, accessible, entertaining, and a place to build great relationships while staying up to date on pertinent issues during our new normal. Clichere to learn more about the mandate of each the ACIC's Committees, where you can get involved, and a few projects that the TPMC has on the horizon!

Recent Case Law Summaries
New England Region
In Huntington Technology Finance., Inc. v. Neff, a New York court upheld a Guarantor's waiver of defenses in relation to a guaranty of a lease since the Guarantor failed to show that the lease constituted a security interest. Click here to learn more
In Goddard v. Loosigian, the Massachusetts Appeals Courts affirmed that a principal debtor has no right of contribution against a guarantor in connection with a business loan and two promissory notes.Click here to learn more.
In Finance Authority of Maine v. Grimnes, the Supreme Judicial Court of Maine ruled that the commercially reasonableness requirement of §9-1607(3)(a) of the Maine U.C.C did not apply to a secured lender 's claim against a guarantor since such party decided to sue on the personal guaranty of the guarantor rather than pursue collateral. Click here to learn more.
Southern Region
In Synovus Bank v. Kelley, theGeorgia Supreme Court ruled that a judgment creditor's lien on real property is created the day the judgment is recorded, not the day the judgment is issued. Click here to learn more.
In Wells Fargo Bank, N.A. v. Highland Constr. Mgmt. Servs.,the Fourth Circuit held that a pledge of security interest in a Virginia LLC does not include debtor's indirect membership interests in such LLC absent explicit language in a security agreement. Click here to learn more.
In Wilson v. Gandis, the Supreme Court of South Carolina affirmed the lower court's opinion to require the majority members buy out the membership interest of a minority member due to a revealed plot by the majority members to squeeze out the minority member. Click here to learn more.
In The Rainmaker Group Ventures, LLC v. Bellack, the Court of Appeals of Georgia held that the implied covenant of good faith and fair dealing is inapplicable when an issue is expressly covered by a contract. Click here to learn more.
In ING Bank, N.V. v. M/V Charana Naree, the Louisiana federal court ruled in favor of a secured lender of a global supplier of fuel oil which entitled such parties to enforce past filed liens against a vessel and its current owner related to unpaid fuel invoices of a prior owner of the vessel. Click here to learn more.