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School of Law
1045 W. Maple St.
Robert A. Leflar Law Center
Waterman Hall
University of Arkansas
Fayetteville, AR 72701

Phone: (479) 575-5601

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University of Arkansas School of Law

Arkansas Law Notes

Business Law

Blue Penciling Noncompete Agreements in Arkansas and the Need for a Public Policy Exception

In today’s workplace environment, there is increasing pressure for employees to sign noncompete agreements. Depending on a state’s laws or noncompete jurisprudence, these agreements may or may not be enforceable, regardless of the presence of overbroad language that may be harmful to employees. As employers seek to protect their business interests, more businesses are using noncompete agreements to assert control over employees at all levels of the business employment structure. This means that these agreements will restrict the mobility of even low-wage employees, unless otherwise stated.

Selected Construction Contract Clauses: From the Routine to the Cutting Edge

This article discusses nine topics that present special challenges for attorneys negotiating and drafting construction contracts. Most of these involve standard issues that come up in practically every construction project. A few involve developments that are just beginning to attract the special attention of the construction bar.

Trading With Cuba: What is in it for Agribusinesses in Arkansas?

Without doubt, food and agricultural products will feature strongly in Cuba’s unfolding trade relations with the West and the rest of the world. With U.S. Secretary of Agriculture Tom Vilsack predicting that U.S. trade with Cuba could rebound from its current $300 million to close to $500 million, agribusinesses in Arkansas stands to benefit. Although U.S. businesses already export some food and agricultural products to Cuba, normalized trade relations with the island nation has the potential to significantly boost economic exchanges between the two countries. This paper offers an assessment of the potential role of food and agriculture in Cuba’s external trade and foreign investment considerations.

Governor Hutchinson’s Trade Mission to Cuba: Key Legal and Policy Developments that the Arkansas Business Community Should be Aware Of

This article provides a broad overview of the state of play in the U.S.-Cuba diplomatic relations starting from December 17, 2014, when the landmark change in policy was announced. Subsequent articles will assess the implications of normalized trade relations with Cuba for food and agricultural companies in Arkansas, provide more detailed analysis of relevant regulations from the U.S. Department of State (“State Department”), the U.S. Department of Commerce (“Commerce”) and the U.S. Department of the Treasury (“Treasury”), and will offer more robust analysis of the legal aspects of a potential U.S.-Cuba trade and investment. Subsequent articles will also take a closer look at the risks involved in investing in Cuba and how businesses in Arkansas can mitigate those risks if and when they are allowed to enter the Cuban market. An analysis of the factors that prompted U.S.-Cuba rapprochement is beyond the scope of this article.

Shannon v. Wilson and the Arkansas Dramshop Act of 1999

On January 28, 1995 two young men (both age thirteen) were passengers in a Ford pickup truck driven by another young man age sixteen. The three of them drove up to a drive through window of a liquor store in Fayetteville, Arkansas and purchased a six pack of beer as well as a six pack of malt liquor. They were not asked to provide any proof of age. Sometime later the party stopped at a pool hall in St. Paul, where the sixteen year old exited the vehicle. The remaining boys stayed in the vehicle drinking the rest of the liquor. Eventually they departed. Shortly after 9:00 PM the Arkansas State Police were notified of an accident in Madison County. Upon their arrival at the scene they observed a pickup truck which had left the road, hit a fence, a telephone pole, and finally came to rest after hitting a tree. The two occupants were pronounced dead on the scene.

Chapter 12 Bankruptcy: Family Farm Restructuring

This overview of Chapter 12 Bankruptcy is written to provide an introduction to the basic Chapter 12 process, highlighting some of the issues that distinguish it from other types of bankruptcy and explaining how it may be useful to family […]

Defalcation by a Fiduciary – A New Standard

I am writing about a bankruptcy case from the Supreme Court. This changes cases from the Eighth Circuit and this is why I am discussing it. The case is Bullock v. BankChampaign.[1]. The issue concerns whether a debt is dischargeable when the debtor obtains a bankruptcy discharge. The phrase in the Bankruptcy Code is “defalcation by a fiduciary”. If the fiduciary has done this, the debt is not discharged. This issue does not come up frequently, but when it comes up, this is an important change.

The Credit CARD Act of 2009 – Four Years Later

The Credit Card Accountability Responsibility and Disclosure Act of 2009 (the “Credit CARD Act”), was signed into law by President Obama on May 22, 2009. As described by the Senate Report, its purpose was “to implement needed reforms and help […]

The (Limited) Allure of Delaware

Delaware is known as “The First State” for its primacy in adopting the United States Constitution in 1787.[2] More recently, Delaware has become the first state of U.S. corporations, despite being the second smallest state in terms of territory and the sixth least populous state.[3] Why is Delaware the most attractive jurisdiction for incorporation? This piece will discuss the unique blend of law, institutions, and reputation that have combined to make Delaware the most sought after jurisdiction for corporate enterprise, and will consider what that means for Arkansas legal practitioners and lawmakers.

SEC Lifts Ban on General Solicitation, Adopts “Bad Actor” Rules and Proposes Changes to Regulation D and Form D

On July 10, 2013, the Securities Exchange Commission (“SEC”) adopted and released a number of highly anticipated amendments to Rule 506 of Regulation D of the Securities Act of 1933, as amended, that (i) effectively lift the ban on general solicitation and general advertising of securities in certain private offerings under Rule 506, as mandated by Section 201(a) of the Jumpstart Our Business Startups Act (the “JOBS Act”), and (ii) disqualify securities offerings involving certain “bad actors” from relying on the exemption under Rule 506, as mandated by Section 926 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank”).[2]

The Supreme Court and Capital Gains Taxes in Bankruptcy and Credit Bidding in Cramdown Auctions

Two cases are mentioned here that came down in May 2012 from the Supreme Court. The first case, Hall, is important if you have a client with appreciated property who is in financial stress.[1] The second case, Radlax Gateway Hotel, is relevant if your client is a secured creditor who wishes to credit bid in a bankruptcy auction organized by the debtor.[2] Since you might represent the debtor or the creditor in bankruptcy both cases might be of interest. Hall is more likely to come into your life, perhaps. It will be discussed first.

SCOTUS Adopts a Workable Definition of “Supervisor” Under Title VII

The following is an excerpt from the author’s blog: In Vance v. Ball State University, a 5-4 decision authored by Justice Alito and delivered on June 24, 2013, the U.S. Supreme Court held that, for the purpose of determining an employer’s liability […]

The Impact of the 2012 National Mortgage Settlement’s Servicing Standards

In February 2012, after a lengthy investigation, the attorneys general of forty-nine states (all but Oklahoma), the District of Columbia and the federal government reached an agreement with five large banks and mortgage servicers to address widespread problems in the […]

Counterfeit Checks — What Rules Should Cover These?

Let’s start with the facts of a Seventh Circuit case, Wachovia Bank, N.A. v. Foster Bancshares, Inc. Last year I wrote to say we in Arkansas should not follow an Ohio case. Here I argue that we should not follow the reasoning of a Seventh Circuit case. Even worse, part of its reasoning is used in an earlier Texas case. I would think that Arkansas courts would follow cases from the Seventh Circuit and the Texas Court of Appeals. I hope they do not. What follows are some arguments you can use to try and convince a court not to follow either of these cases. I guess I have a bit of chutzpah!

Go Figure

The Supreme Court last January decided that a Chapter 13 debtor with above the median income could not deduct car expenses under the IRS rules when he did not owe any debt on the car. This case is important for us because the Court of Appeal for the Eighth Circuit had ruled the other way allowing the deduction.

A Review of Piercing the Veil Cases in Arkansas

Piercing the veil is an equitable doctrine developed at common law, which under certain circumstances allows a court to order that the separate legal existence of a business entity be disregarded. Originally, the doctrine was designed to allow creditors and […]

Bankruptcy Flow Charts

Recently I realized that each year in my class I would cover the chalkboard with various charts and time lines and diagrams in an attempt to help my students understand certain provisions of the bankruptcy code. I like to think […]

Money, Money, Money: Banks, Customers, and the Writing of Checks — a Practitioner’s Primer

If money makes the world go round, and checks are a simple and commonly used means of passing money from one party to another, it follows that checks also make the world go round. And yet many Arkansas lawyers have […]

Gambling in Arkansas in the Post Lottery Environment

On November 4, 2008, the voters of the state of Arkansas amended the state constitution to permit the institution of a state lottery. Arkansas thereby became the 43rd state with a state lottery. Previously, the general assembly enacted legislation which legalized bingo when conducted by charitable entities. […]

Courts Beware: Do Not Follow This Ohio Case

A case came down from the Ohio Supreme Court several years ago. I have not had time before now to discuss its possible impact on the law of Arkansas. Those of you who represent secured creditors and those who represent the state and its departments […]

Non Compete Agreements in Arkansas: Can They Be Enforced?

It is not uncommon for employers to insist that certain of their employees sign “non compete” agreements1 as a condition of their being hired or as a condition of their continued employment. Such agreements typically prohibit an employee (after he or she is no longer […]

The Model Registered Agents Act – A Word (or two) to the Wise

In 2007, Arkansas became one of the very first states to adopt the Model Registered Agents Act, (the “Act”), a piece of model legislation that had recently been proposed by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) and the American Bar Association (the “ABA”). […]

Single Asset Real Estate and the Bankruptcy Abuse and Consumer Protection Act

This article discusses the single-asset bankruptcy change made by the Bankruptcy Abuse and Consumer Protection Act. I mentioned this change at the 2006 Mid-Year Meetings in Memphis (at the end of my talk and not related to it) and have not seen any discussion […]

Learning From Real Estate Lore

[E]very once in a while, the law can be fun!  Not loud, frolicking fun—but the quiet fun of intellectual games. Not the exhilaration of biking and hiking—but the excitement of exploring and discovering. In form, this is a book review. More essentially, however, […]

How Does the Arkansas Trust Code Affect Real Estate Transactions?

The Arkansas Trust Code (ATC) has been in effect since September 1, 2005. In addition to Arkansas, 18 other states, plus the District of Columbia, have enacted versions of the Uniform Trust Code. This is a remarkable result for a uniform law first […]

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