• Dell’s $3.9 billion acquisition of Perot Systems in September
• Walt Disney’s $4 billion tie-up with Marvel in August
• Exxon Mobil’s $41 billion all-stock buy of XTO Energy in December
• AIG offloading its Asian life insurance business to the U.K.’s Prudential for $35.5 billion

While these deals certainly make headlines, I don’t think they do much for main street American business and more importantly, I don’t think you can declare that merger and acquisition activity is back based on these deals alone. The article argues that these deals signal change  and explains that companies are looking to invest the cash they accumulated through the significant cost-cutting measures in 2009.

However, what the article fails to address is the significant strain many companies still feel, those that did not have the luxury of accumulating significant cash reserves through cost-cutting.  On the contrary, for many businesses, cost-cutting was not a strategy employed to accumulate cash — it was a drastic measure taken to ensure survival.  As such, these businesses are not in a position to simply spend the cash reserves to restart the engine, they need their market to rebound.

Perhaps some of the rebound can come from the larger players who have these cash reserves through a “trickle down” process.  But most of this growth will drive from continued consumer confidence and growth.  So, yes, these large deals are important to signal a sea change, but the real recovery is going to require a much larger economic and environmental change over time.

Perhaps the best nugget of the article came in the last paragraph:  “In his latest letter to Berkshire shareholders, Buffett said, ‘Directors should hire a second advisor to make the case against the proposed acquisition, with its fee contingent on the deal not going through.’ Absent that drastic measure, his advice remains ‘Don’t ask the barber whether you need a haircut.’”

The basic business model is simple — outside general counsel services typically work with small to midsize businesses that have few or no in-house lawyers and act as an in-house lawyer without the cost or commitment of full-time employment. They can parachute into a company, even as a C-level executive, and stay for as long or as briefly as needed.  Outside general counsel are perfectly suited to triage and solve your day-to-day legal needs at a fraction of the cost of traditional legal solutions.  Here are just some of the benefits that outside general counsel provide when compared with traditional law firms:

• They are key business advisors, not just legal technicians
• They have significant in-house executive legal experience, and often times advanced business education
• They share a business-centric and practical approach, grounded in the company’s business objectives
• They can work in your office, along side your team
• They provide proactive legal risk management, helping avoid problems before they arise
• They communicate better with business constituents
• They provide another executive on your team, without the commitment of hiring a new employee
• They free you from worrying about the 6-minute bills
• They offer low overhead costs, meaning more affordable rates

An outside general counsel can handle your day-to-day legal needs in a manner that is more relevant to you than a traditional law firm and at a more compelling cost. In addition, they can work with law firms, and manage them, to get the most out of high-priced specialists when needed. Large companies rely on in-house counsel for these reasons. With an outside general counsel, you can too.

Some of the interesting attributes of Cash Balance Plans include:

• Are a type of defined benefit plan governed by the Employee Retirement Income Security Act (ERISA).

• May be well-suited for high income-earning professionals and owners of small, closely-held businesses.

• Feature deferral of more pre-tax income than 401K or profit sharing plans.

• Can often be layered on top of a 401K or profit sharing plan.

I recently saw a research article here that provided a great summary of Cash Balance Plans.  This was put together by Bernstein Global Wealth Management and was sent to me by Paul Borowski, one of their advisors (Paul.Borowski@bernstein.com).  Take a look and see if this might be right for you.

Russell Herder and Ethos Business Law conducted a groundbreaking study with C-suite executives regarding corporate use of social media, as well as on the need for internal policies and training. The firms were contacted last month for permission to share key findings at the global event in a session entitled “The Growing Influence of Social Networks,” which featured the CEOs of LinkedIn, MySpace, Ning and Twitter, among others.

“Corporations need to recognize that the social Web has the potential to become a new mode of production and the new “operating system” of a business,” the Forum reported. “But companies face a crisis of leadership. Too many companies are reticent about incorporating social media into either the organization’s internal process or its customer strategy, viewing social networks instead as a threat to employee productivity, or a source of transparency for which some organizations feel unready.”

Russell Herder and Ethos Business Law have participated in numerous speaking engagements since the original research was released a few months ago. A free copy of the research white paper is available at here.

Unfortunately, Minnesota Nice isn’t really about being “nice” at all. It’s more about keeping up appearances and avoiding confrontation.  Moreover, it can also be used as a negotiation tool, which causes confusion, misunderstanding and frustration among other participants.  So, what do you do when you are in a negotiation and you are confronted with “Minnesota Nice?”  Here are a few tips:

• Keep the negotiation focused on the issues, not the people.  This will help diffuse any potential personal confrontation.
• Be open and upfront, and expressly ask the same of other participants.
• Think bigger than the pie.  You don’t just have to cut the pie into pieces — expand the pie so that everyone is satisfied.
• Make sure you understand where each negotiator is coming from — their frame of reference.  This will give you insight into how to effectively negotiate with them.
• Plan properly for the negotiation.  Make sure you are prepared to deal with various scenarios prior to the actual negotiation.

Keep in mind the ultimate goal, to have a successful result to your negotiation. To accomplish this goal, all parties must “win.”  While each party will independently define what a “win” is to them, these negotiating tips may help you work through your next encounter with Minnesota Nice.

Please share your negotiating experiences and tips.

I find one of the best way for a client to leverage value from its corporate counsel is through regular, proactive interaction.  Simply spending time discussing a client’s business and future goals can prove quite productive.  I often work as outside general counsel for clients on a retainer basis — not by hourly fees.  This encourages clients to spend time working with their attorney on proactive strategies and removes the “time” concern.  Moreover, this fosters a better relationship between the parties and allows the attorney to have a better institutional knowledge of the client.  If you are still paying for every minute of your corporate attorney’s time, consider implementing a different business model.

If you do not timely file annual registrations, you run the risk that the Secretary of State may administratively dissolve your entity.  More importantly, if you do not follow proper corporate formalities, such as holding annual meetings, keeping accurate minutes and updating other corporate records, you subject your personal assets to potential liability through corporate veil piercing.  The veil of a company’s separate existence is pierced and the owners exposed to personal liability when a court determines a debt is not really a debt of the company, but ought, in fairness, to be viewed as a debt of the owner.  While there are many factors for piercing the corporate veil, failure to follow corporate formalities is a typical factor.

Annual corporate maintenance is certainly something you can do on your own, if you like.  Alternatively, you can engage your corporate attorney to assist.  It should not cost a fortune — in fact, I typically offer a flat fee annual maintenance package.  Whether you do it yourself or engage an attorney, I suggest you spend a few minutes thinking about annual corporate maintenance before the year ends.  It is also a good opportunity to do a general check-in with your corporate counsel on other business and legal matters.  You will then be ready to ring in the new year!

In the past, most courts have treated corporate computers, and anything on them, as company property. However, in recent rulings, courts have begun to investigate the circumstances around disclosure of policies to employees and other factors. For example:

• In New Jersey, an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn’t be read.
• In San Francisco, a federal appeals court ruled that employers that contract with an outside business to transmit text messages can’t read them unless the worker agrees.

While it is probably too early to make any sweeping generalizations about this trend, it certainly suggests that employers need to review their policies, practices and training to make sure they do not run afoul of this evolving issue.