Tag: Wisdom

Steps Toward More Effective Mediation

By Charles H. Dick

Most civil disputes will be resolved before trial,1 and mediation has become one of the most important phases of every lawsuit. Even so, the informality of mediation induces many less-experienced litigators to take a casual attitude toward the process. Too often, lawyers approach mediation as if it were the easiest phase of a lawsuit; this is serious mistake. If pleadings, discovery and motion practice warrant hours of planning, thought and effort, why treat mediation any differently? Read More

Modes of Contract Review

By William Marshall
Transactional attorneys refer simply to “reviewing” a contract. However, I have identified different modes of review and found that thinking about them can be helpful in improving my review practices. The following are nine modes of review that I, to varying degrees, am adopting as I review an agreement. Some of them overlap and, of course, I very often perform multiple or even all of these modes in a single reading of an agreement. However if time permits, separate readings focused on one or two of these modes at a time can result in a better, more comprehensive assessment and markup of a document. Read More

Following Up on Your First Year

By Marti Worms

Now that Fall has arrived, many of you who graduated from law school last year are approaching one-year of practice or maybe more, depending on whether you had a post-bar position lined up after graduation. This milestone provides an often-neglected opportunity for you, as a new lawyer, to perform some self-assessment and career planning that will help you continue to move forward in your career and prepare for your year-end review.  Whether you are a brand new attorney or a young lawyer with two or three years in practice, consider delving into the following four areas for a do-it-yourself career assessment.

Evaluate Your Work Direction Read More

Client Management in Disclosure Schedules

By Aaron Sokoloff 

The preparation of disclosure schedules is typically one of the most time-intensive aspects of a financing or M&A transaction. In larger firms, this process is often in the hands of a junior associate, since the junior associate is usually the closest to the diligence materials that are the source of much of the information in the schedules. However, this practice gives the misleading impression that disclosure schedules are a straightforward exercise. In fact, the preparation of disclosure schedules often involves some tricky client management issues that can challenge even senior lawyers.

  • Process Management. The division of labor between the company and its counsel in disclosure schedules is not obvious, and the right approach may vary from deal to deal. This is different from many other transaction documents, which are simply drafted by the attorneys subject to the client’s review. Sometimes it may make sense for the attorneys to take the first cut at drafting the disclosures, particularly if the attorneys have significant institutional knowledge of the company. Sometimes it may be appropriate for the company to do the first draft, with the lawyers then taking the role of wordsmithing what the client has prepared. Sometimes the best approach will be for the lawyers to draft some of the disclosures first (e.g. those involving corporate organization, litigation that the firm has handled, etc.), with the company taking the lead on others (e.g. those involving commercial contracts or other operational matters that the outside lawyers are not close to). While the ideal approach varies from deal to deal, it’s crucial that the division of labor is decided early on so that the responsible parties can start making progress on the disclosures. If the company is not familiar with the disclosure schedule process, they may well underestimate the amount of time and effort that a disclosure schedule entails, especially for a mature company. Even if the company offers to take the lead on some or all of the disclosures, the attorney should stay close to the process, to avoid the scenario where the company volunteers to handle the disclosure schedules in an effort to reduce legal fees and then, at the last minute, gets overwhelmed with the process and pushes this project back to the lawyers; this puts the lawyers in the undesirable position of having to complete a disclosure schedule on short notice when they likely haven’t done the necessary underlying review, and may already be fully occupied with negotiating and finalizing other deal documents.
  • Full Disclosure. There is often a tug-of-war between the attorney and the company on the amount of disclosure to provide. The attorney is typically pushing for maximum disclosure, since this gives the client maximum protection by putting the buyer on notice of any issues. The company may desire to limit disclosure, so as to avoid airing out “dirty laundry” for a buyer or investor that they are trying to impress. Attorneys helping their clients with disclosure schedules need to be able to go beyond simply gathering and organizing information, and advise the client on why failure to disclose could lead to the client having to deal with indemnification or even fraud claims.
  • Monday Morning Quarterbacking. One aspect of the “full disclosure” argument that can be a particular flashpoint between attorneys and their clients are disclosures regarding corporate-level matters – e.g. ambiguities or gaps in capitalization documents, non-observance of corporate formalities, etc. Often, the attorneys representing the company on a major transaction have not been closely involved with the company throughout its history, and in the course of their deal work may notice errors or omissions on corporate matters that they believe need to be disclosed. Clients can sometimes take these kinds of disclosures personally, and see them as gratuitous faultfinding by the lawyer who is supposed to be on their side. This kind of issue therefore requires the attorney to exercise some diplomacy in explaining to clients why these disclosures are important, without the client viewing them as a Monday morning quarterback, which can have a negative effect on the attorney-client relationship as a whole.
  • Understanding What a Data Room Does and Doesn’t Do. Clients sometimes have the impression that, if a document is included in the data room (or whatever method by which diligence materials are provided to the buyer/investor), that is as good as disclosing the document in the schedules. This is almost never the case. While posting a document in a data room (or whatever is the manner of providing diligence materials in a particular deal) may be helpful in showing that the company wasn’t trying to defraud the buyer or investor by affirmatively hiding something, the company and its attorney still need to go through the (sometimes arduous) process of preparing a disclosure schedule that is complete and correct in order for it to provide the desired level of legal protection.

Aaron Sokoloff  is an attorney at Procopio, Cory, Hargreaves & Savitch LLP.

This article is for information purposes only and does not contain or convey legal advice.  The information herein should not be relied upon in regard to any particular facts or circumstances without first consulting an attorney. Any views expressed are those of the author only and not of the SDCBA or its Business & Corporate Law Section.

This article originally appeared as part of the 

SDCBA Business & Corporate Law Section’s column series Read More

The Why, What and How of Working with a Fractional CFO

By James Wheeler

According to California’s Employment Development Department, San Diego is home to more than thirty thousand small businesses of between five and fifty employees.[1] As a trusted advisor to these growing businesses, you may have observed that one of your clients would benefit from a level of financial expertise beyond the capabilities or capacity of their existing leadership.  Most of these small to medium-sized companies are not large enough to justify a senior financial leader on a full-time basis and may not have considered retaining with a fractional CFO (“fCFO”).  As an attorney and advisor, you may want to learn about what a fractional CFO can do to help their business.

A fractional CFO is a Chief Financial Officer who is contracted to provide financial leadership and oversight in a part-time capacity. The fractional CFO is also known as part-time CFO, outsourced CFO or virtual CFO.

Once on board, a fractional CFO can:

  • Create additional alignment—the fractional CFO will often be an important advocate for your point of view, particularly where risk mitigation is concerned. This alignment particularly relevant as fractional CFOs are often more closely integrated into the business than the CPA or outside counsel.
  • Call for additional counsel—like their full-time counterparts, fractional CFOs often work closely with outside counsel on transactional work, litigation and even labor issues.
  • Cement your relationship and expand your influence—you may not be McKinsey & Co., but you can still develop your business like them by effectively placing senior leadership.

What does a fractional CFO do?

The fCFO operates similarly to a full-time CFO by providing financial leadership, financial expertise, and financial credibility.

  1. Financial leadershipWorking with the CEO
  • Strategic ‘north star’ – Ensures that financial statements are actionable at a strategic level. E.g. Articulate what the balance sheet needs to look like if the CEO wants to acquire another company, and plan the best way to ‘get there’.
  • Sophisticated analysis – Provides forward-looking analysis beyond the capability of existing staff. E.g. Forecasting cash flow to help the business plan for and avoid cash shortfalls.
  • Best practices, process and oversight – Bring best practices to the various financial functional areas and incorporate internal checks for current processes. E.g. Establish appropriate controls over disbursements and payables reducing the risk of fraud and error.
  • Strengthen skill set of existing resources– Mentors the internal team. E.g. Develop the controller; increasing their productivity and value to the organization.
  1. Financial expertise – Working with Banks
  • Product selection –Select the optimal mix of treasury management, deposit, and debt products (an esoteric exercise with hundreds of institutions each offering different products). E.g. Access debt for the business without the owner/operator pledging their personal assets to secure it, resulting in reduced risk for the owner and potentially better credit for the business.
  • Process navigation – Navigate the unique language, regulations, and process under which most banks and financial institutions labor. E.g. Knowing when to negotiate with the credit department vs the legal department, or the company size at which different institutions move a relationship out of the retail or deposit office.
  • Relationship management – Maintain relationships with the right financial institutions to advocate for the business. E.g. Ensure lenders are messaged appropriately regarding any business changes to maintain or extend existing credit terms.
  1. Financial credibility – Working with investors
  • Curating financial data – Set policy and infrastructure to yield the quality and presentation of financial data investors are accustomed to seeing. E.g. Guiding the organization of the chart of accounts to support the company’s financial objectives.
  • Crafting financial narrative – Assist the CEO to craft an appropriate financial narrative for investors. E.g. Crafting communication to show how different sources of capital are being used to generate a return for investors

Limitations of the fractional CFO

Fractional CFOs are, by their very definition, limited in their ability to engage with an organization. Understanding this and working closely with an fCFO to ensure their limited time is utilized on the highest-value activities will yield the best outcome for the client. Clients who ask fractional CFOs to take on too many tactical activities or operational responsibilities may not get the value they’re paying for and end up frustrated.  The CEO and fCFO should engage in an ongoing dialogue to review initiatives and priorities to ensure alignment.

Working with your client to select an optimal fractional CFO

Companies have numerous options in selecting a fractional CFO, and a client’s expectations, needs, and style should be discussed early in the fCFO selection process. It’s helpful to consider how they want to work with their fCFO, and have a clear picture of what they want that individual to accomplish through the engagement.  The areas below are additional considerations to ensure the best fit.

  • Aligned experience – While an outside perspective can yield tremendous benefits, a lack of familiarity with an industry can be a source of inefficiency. Companies considering an fCFO should consider someone with experience in their space or an adjacent one.
  • Business model options – There are different models for delivering fCFO services, each with their own strengths and weakness depending on the needs and style of your client.
    • Team based – many fCFO offerings are part of a service provider that includes an outsourced accounting team and has multiple teams. The advantages of this type of delivery, as you might imagine, may include greater bench depth and service continuity that is less dependent on individuals. The downside may be higher client load resulting in less mindshare per client, and can be more complex by design to increase client retention. This model will also offer a different feel relative to the next model.
    • Individual practice – The individual practitioner may work with an internal accounting team or a different outsourced provider. The advantages of this type of delivery is that discrete segments of a client’s finance ‘stack’ can be individually changed out with less disruption and there is often greater mindshare per client. The downside may be less redundancy or bench depth than with a larger provider.

    Style/fit – fCFOs will be a strategic partner to the CEO, offering a uniquely valuable perspective. It’s a close working relationship and if stylistic differences, or a lack of shared values, erode trust or make communication too costly between the CEO and fCFO, it may not work.
    Fee structure – Some engagements provide for an fCFO to spend fixed day(s)/week in a client’s office. Other engagements are virtual. Some are fixed fee, some hourly. Some are stand-alone, some are bundled with other team members. Some fCFOs do project work or interim roles, others do not.

    Selecting a fCFO is not unlike hiring a full-time CFO, although it does offer the unique benefit of allowing both parties to get to know each other with reduced economic risk to the company if the selected individual isn’t a good fit.

    Final thoughts- the benefits of fCFOs for Outside Counsel

    Deciding to utilize a fractional CFO allows senior leaders to focus on their business and can fill both known and unrealized gaps in the leadership team. Even in a limited capacity, this role can bring tremendous value to the small business and to its working relationship with outside counsel.

    James Wheeler is CFO at Narrative Financial Management.

    [1] http://www.labormarketinfo.edd.ca.gov/LMID/Size_of_Business_Data.html accessed July 23, 2018 Read More