Business Transactions

Every business needs to understand its legal obligations and be aware of the potential risks associated with the advertising and marketing of products and services. Regardless of whether a company utilizes an agency to conceptualize and design advertisements and marketing materials, it is ultimately the responsibility of the advertiser to ensure it is compliant with the various federal and state statutes and regulations. Violations for non-compliant advertisements can incur hefty fines and other actions by the Federal Trade Commission (FTC), and potentially the Attorney General’s Offices, which can be detrimental to a company’s operations and reputation.

The FTC oversees and regulates advertising, marketing, and interstate trade practices in the United States. It enforces truth-in-advertising laws, which state that advertising must be truthful, not be misleading and, when appropriate, should be backed by scientific evidence. Advertising claims for products and services that impact consumer health or finances, such as food, drugs, tobacco, alcohol, vehicles, and banking, are strictly regarded by the FTC. The truth-in-advertising laws apply regardless of how and where advertisements appear, including radio, television, print, internet, direct mailers, billboards, affiliate marketing product placement, social media, and sweepstakes offers.

Jennings Strouss attorneys work with clients to ensure all forms of advertising are compliant before being published and distributed, as well as assist clients that find themselves the target of a deceptive advertising investigation.

We serve clients in virtually every aspect of advertising, marketing, and promotions law, including:

• advertising litigation
• advertising substantiation and claim clearance
• advertising regulatory investigations and litigation
• affiliate marketing business agreements
• competitor litigation and advertising challenges
• consumer class action defense
• consumer protection and fraud defense
• direct marketing
• environmental (green) marketing
• food, drug, dietary supplement, cosmetic and medispa advertising
• intellectual property and licensing
• internet, email, and mobile marketing
• privacy
• social media advertising and marketing
• sweepstakes, contests, and promotional marketing
• technology
• telecommunications
• telemarketing
• Telephone Consumer Protection Act (TCPA) defense

Our goal is to assist businesses with the implementation of advertising and marketing campaigns that conform to the laws and regulations of federal, state, and local agencies to avoid issues that could have a devastating impact on the company. We work with clients to help achieve their advertising and marketing goals without violating laws and putting the business at risk. Should your business find that it may be at risk of violating advertising and marketing laws, Jennings Strouss attorneys are well-versed in working with regulatory agencies to resolve issues.

The automotive dealership industry is exceedingly competitive and unpredictable. Jennings Strouss understands that dealerships and owners have more on their plate to worry about than just selling vehicles. They are presented with unique daily challenges related to the ownership and operation of a motor vehicle dealership, such as the collaboration of its various departments, relationships with manufacturers and vendors, consumer disputes, economic pressures, recalls, and ever-increasing federal and state regulation.

Our attorneys have developed a sophisticated understanding of all aspects of automotive dealership operations and recognize that the legal representation of the industry requires a multi-disciplinary approach. They have substantial experience with advising clients from a legal and practical business perspective regarding the multitude of issues encountered by motor vehicle dealerships and their owners, including:

• Advertising Compliance
• Acquisitions, Expansions, and Sales
• Attorney General/State Investigations
• Automobile Trade Associations
• Consumer Complaints
• Consumer and Commercial Litigation
• Employment
• Factory Audits
• Financing
• Licensing
• Manufacturer and Vendor Relations
• Real Estate
• Recalls
• Regulatory Compliance
• Structure and Succession Planning

Automobile dealerships are among the most highly regulated industries in the United States. To assist its clients with their continually growing obligations, Jennings Strouss conducts compliance audits, form reviews, and training sessions for personnel to ensure dealerships are compliant with the complex, and often times confusing, federal and state regulations, such as the Red Flags Rule, Federal Trade Commission (FTC) Privacy Rule, Safeguards Rule, Truth-In-Lending Act, Fair Credit Reporting Act, and the impact of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) on the lending aspect of the dealership’s operations.

Our goal is to provide preventative counseling to help dealership clients avoid disputes; however, in the event a dealership or owner faces consumer or class action complaints, manufacturer or vendor disputes, real estate, employment, or other litigation matters, our attorneys have the experience to assist either through alternative dispute resolution or by providing an aggressive litigation strategy.

In addition to representing dealerships and owners, Jennings Strouss attorneys often serve as general counsel to dealership groups and trade associations. They are also actively involved in the National Association of Dealer Counsel, an organization designed to educate its membership on the legal issues affecting motor vehicle dealers while facilitating a forum for dealer attorneys to share best practices from across the country.

Our attorneys regularly help clients navigate the myriad of issues involved in forming and growing their business. The first step in forming a business is to determine the type of entity it will be, such as a C or S corporation, limited liability company, limited partnership, general partnership, limited liability partnership, etc. Our attorneys advise clients on how to structure their business and assist in protecting valuable intellectual property and business assets. They also help draft and negotiate contractual arrangements among business owners, as well as with their customers, suppliers, and others. Jennings Strouss utilizes our attorneys’ experience and knowledge to help guide companies through all phases of their business cycle, from simple business matters to complex corporate transactions.

With the passage of the Sarbanes-Oxley and Dodd-Frank Wall Street Reform and Consumer Protection (Dodd-Frank) Acts, the responsibilities of officers and directors of public companies have changed significantly. Jennings Strouss attorneys work with our clients’ directors and executive officers to help ensure compliance with these regulations. They develop and implement disclosure review processes consistent with the client’s business and management practices, and help them identify the appropriate corporate governance model, resolve issues, and prevent future disputes. The firm’s corporate governance experience includes the representation of numerous nonprofit institutions, including universities, charitable organizations, foundations, and hospitals.

Our attorneys assist clients with:

• managing issues of compensation and benefits
• advising distressed companies
• monitoring the conduct of board and shareholder meetings
• preparing board materials and minutes
• representing independent board members
• assisting with the development of board and committee responsibilities and structure
• customizing board and committee charters, corporate governance policies, codes of ethics, and disclosure controls and practices
• overseeing board consideration of raising capital, mergers, and acquisitions
• navigating, evaluating, and implementing legislation and regulations adopted by the Securities Exchange Commission (SEC)
• recommending governance best practices
• developing, implementing, and enforcing company-wide policies and procedures to assure integrity and the accuracy, completeness and reliability of financial and other public disclosures
• assisting director, board, and committee evaluation procedures and conducting and compiling the results in a confidential manner
• establishing policies and procedures regarding document retention to comply with corporate governance laws and governmental regulations
• providing practical and clear advice about disclosure issues
• conducting comprehensive corporate governance audits, legal compliance assessments, and fraud inquiries to identify existing or potential noncompliance issues
• preparing compliance manuals to minimize the risk of future criminal exposure
• defending against allegations of wrongdoing
• counseling managers and equity owners on their fiduciary duties to other stakeholders
• assisting in the resolution of disputes among business owners, executives or others in the organization
• counseling on governance issues arising from significant company transactions
• serving as counsel to independent committees of the board in conflict transactions
• serving as expert witnesses in corporate governance disputes
• drafting legislation on corporate governance matters

Jennings Strouss provides counsel to businesses, governmental entities, nonprofit organizations, and individuals in the areas of finance, private equity and capital formation, and securities offerings. Our clients include:

• domestic and foreign banks
• insurance companies
• real estate developers
• domestic and international commercial businesses
• governmental issuers
• private borrowers in conduit transactions
• underwriters
• indenture trustees
• credit enhancers

Our attorneys recognize the challenges associated with securing financing in today’s economic climate and work strategically to help clients identify and utilize innovative means to meet their capital needs. Our attorneys are knowledgeable on the full spectrum of business finance options and work closely with businesses in various industries to identify the type of finance that best serves their needs, such as:

• lines of credit
• revolving credit
• small business loans
• venture capital
• private equity
• fund formation
• other forms of debt and equity financing

Jennings Strouss also represents both lenders and borrowers in secured and unsecured financings, including:

• mortgage loans
• mezzanine finance
• venture capital investing
• capital equipment leases
• receivable and inventory financing

Our attorneys are well-versed on the various municipal financing structures, including variable rate financings, industrial development bonds, governmental leasing, and improvement district financings.

Financings for 501(c)(3) nonprofit organizations are a niche in which our attorneys have an extensive and somewhat unique experience. Our clients in this area include healthcare providers, associations, charitable and educational foundations, and churches of many denominations. Jennings Strouss attorneys serve as general or special counsel for nonprofit clients, as well as disclosure and underwriters’ counsel in 501(c)(3) financings.

In the area of securities finance, Jennings Strouss has extensive experience in helping private companies “go public” and public companies “go private” through public and private offerings of all sizes. Our attorneys also advise companies that are pursuing or resisting takeover attempts and represent clients in dealings with securities and banking regulators at both the state and federal level. They are often called upon to assist public companies and their affiliates with adhering to regulatory compliance and meeting the reporting requirements of federal securities laws.

Our attorneys practice before SEC, the Securities Division of the Arizona Corporation Commission (ACC), and the Arizona State Department of Financial Institutions. Should the need arise, the firm’s commercial litigation department includes attorneys with extensive experience in securities litigation involving large companies and their directors.

Jennings Strouss provides comprehensive legal services to banks, institutional lenders, investors, mezzanine funds, venture capital firms, commercial and consumer finance companies, mortgage brokers and bankers, insurance companies, and pension funds to meet their needs concerning:

• government regulations
• mergers and acquisitions
• debt
• equity and “hybrid” financing
• asset-based lending
• workouts and enforcement of troubled loans
• bankruptcy and creditors’ rights
• sales and leases of real estate
• corporate governance
• labor and employment
• dispute resolution, including litigation, arbitration, mediation or negotiation

Our attorneys have extensive knowledge and experience representing clients in the following areas:

Commercial Lending and Real Estate Finance

• All types of lending and financing transactions, secured and unsecured, senior and subordinated, interim and long-term, including senior term and revolving credit arrangements, subordinated debt and mezzanine investments, leveraged acquisitions, participations, convertible loans, asset-backed securities, and accounts receivable and inventory financing
• Specialized financing instruments, including adjustable rate notes, guarantees, letters of credit and other credit enhancements, interest rate swaps and other hedging arrangements, bankers acceptances, pledges, mortgages, cash management arrangements, and security agreements
• Purchases, sales, and leases of real estate and financing and securitization thereof, including management, development, construction, condominium, syndications and joint ventures, and related transactions

Risk Assessment and Loss Prevention

• Lender liability prevention and defense
• Environmental risk assessment
• Loan enforcement and realization on collateral, receiverships, creditors’ arrangements, and bankruptcy
• Dispute resolution, including litigation, arbitration, mediation, negotiation, and early-stage neutral case assessment

Representative Transactions

• Assistance in dealing with regulatory agencies, including compliance with federal and state regulations, enforcement proceedings, and strategies for meeting regulatory requirements
• Representation of institutions and their licensed or registered representatives before federal and state regulatory agencies
• Purchases, sales, and mergers involving finance companies, banks, bank holding companies, savings institutions, and credit unions
• Applications for new financial institution charters, branch bank authorization, and bank holding company and other regulatory requirements
• Registered and unregistered securities offerings and bond transactions

Other Related Services

• Review of employment practices and policies and defense of wrongful termination and Employee Retirement Income Security Act (ERISA) claims
• Preparation and updating of retirement plans
• Representation before legislative bodies and boards and commissions, including the Arizona State Department of Financial Institutions
• In-house training and seminars on such topics as banking law, lender liability crisis management, regulatory compliance, loss prevention, and employment
• Advice to management and directors regarding the scope of their respective roles in a highly regulated environment

Jennings Strouss attorneys have provided counsel and assistance to businesses, small and large, local and global in the areas of mergers and acquisitions. The complexity of these transactions and their time-intensive nature requires expertise from several areas of the law, led by experienced counsel that can coordinate the transactional team’s efforts.

Our attorneys work collaboratively to help clients identify and utilize innovative solutions to meet their needs. They assist clients with:

• uniform and complex mergers and acquisitions
• stock and asset purchases and sales
• leveraged buyouts
• recapitalizations
• acquisitions of assets from bankruptcy entities

Our attorneys also handle the corporate, securities, corporate governance, tax, intellectual property, antitrust, banking and finance, employee benefits, real estate, labor and employment, products liability, and litigation aspects of those transactions, among others.

The firm’s mergers and acquisitions representation includes a broad range of industries and businesses, both domestic and foreign. Our attorneys apply this experience and knowledge to help our clients meet their expectations and move efficiently through the process. Our clients include:

• buyers and sellers
• investment bankers
• buyout funds
• bankruptcy trustees
• special committees

Jennings Strouss regularly guides clients throughout all phases of a merger or acquisition matter, from the early evaluation of a transaction, through due diligence, negotiation, documentation, and closing of the deal. We also assist with the integration of employees and assets into the purchasing or newly formed organization. We regularly prepare:

• letters of intent
• acquisition, merger, confidentiality, standstill and similar agreements
• financing documents
• proxy statements
• legal opinions

Jennings Strouss attorneys help clients defend against unwanted acquisitions and protect company interests in the event of a change-in-control. Also, they counsel boards and senior management on their legal and fiduciary duties in responding to potential transactions and implementing appropriate measures.

Representative Engagements

• Represented clients in numerous acquisitions of companies and assets in transactions ranging up to $1.8 billion, and represented sellers of assets and divisions in transactions ranging up to $11 billion
• Represented an SEC-registered commercial finance company in restructuring its $11 billion of debt and related corporate transactions
• Represented seller of multi-state landscaping materials company in a transaction valued at over $120 million
• Counseled corporate clients on defensive measures to protect against hostile takeovers
• Represented Fortune “100” company in federal multi-district litigation concerning failed corporate merger and acquisition
• Represented parties in the following mergers: Helifly/Boeing, Boeing/MD Helicopters, Sikorsky/MD Helicopters, Flight Trails Acquisition
• Counseled several financial institutions in acquisitions, including Chase Manhattan Corp. in $89 million cash acquisition of the stock of Continental Bancorp and its subsidiary Continental Bank of Scottsdale, Arizona
• Counseled corporations in purchases and sales in amounts involving traditional asset-based financing, bond financing, and purchases from the sale of assets from entities in Chapter 11 bankruptcy
• Represented party in an acquisition of a chemical producing plant with assets about $29 million for this acquisition
• Represented buyers and sellers of businesses in numerous industries, including automotive dealerships, manufacturing, insurance, product testing, services, construction, finance, telecommunications, radio, legal services, and other fields