The Workshop: Hybrid 2022, October 12-14, 2022
Designed to provide practitioners and government and industry representatives the latest information and developments about municipal bond law and practice, you can choose what you need to fulfill your specific professional development needs. You can also order the Workshop 2022 Blue Book with outlines.
Members: $595 for the full conference; $79 per session
Nonmembers: $695 full conference; $99 per session
CLE NOTICE: NABL has applied for on-demand CLE credit; some states are currently taking up to 90 days to provide approval. Virginia did not approve the Workshop for on-demand CLE hours. Email us at cle@nabl.org if you have questions or need more information.
Arbitrage and Rebate: Can I Earn It? Can I Keep It?
Bank Direct Purchase – General Considerations (Non Tax)
Deal Gone Bad
Ethics: Conflicts, Competence, and Confidentiality
Ethics: Diversity and Implicit Bias
Ethics: Ethics and Technology
General Session Lessons from Reedy Creek
Health Care Facilities - Non-Tax Matters
Hot Topics In Securities Law
Legal, Commercial, and Financing Issues in P3s
Let Me Check with My Desk NEW SESSION!
LIBOR Phase-Out Update
Multifamily Housing
Opportunity Zones & Economic Development
Preparing to Deliver the Bond Opinion: Tax Diligence and Documentation
Private Activity Bond Tests
Refunding and Reissuance
SEC Enforcement
Tax Concepts In Bank Direct Purchase And Bank Qualification
Tax Exempt Leasing
Tax Hot Topics
Tax Issues in 501(c)(3) Financings
The Role of Issuer's Counsel in a Bond Issue
Underwriter’s Counsel Roundtable
Arbitrage and Rebate: Can I Earn It? Can I Keep It?
Chair: Sarah A. Breitmeyer, Chapman and Cutler LLP, Chicago, IL
This panel session addresses arbitrage and rebate concepts commonly encountered in structuring transactions and post-issuance compliance matters, with a particular focus on allocation of proceeds including final allocation considerations, arbitrage elections including strategies involving waivers of temporary periods, commingled fund accounting, investment considerations and rebate computations. The session also addresses unique issue price situations. Hypotheticals and discussion address these topics and practitioner considerations in a changing interest rate environment. The session assumes that the audience has a general understanding of arbitrage and rebate principles, but topics will nevertheless be selected for broad appeal, focusing on common issues practitioners have faced in recent years.
Bank Direct Purchase – General Considerations (Non Tax)
Chair: Vanessa S. Legbandt, Stradling Yocca Carlson & Rauth, Newport Beach, CA
In this panel, we discuss structuring and legal considerations that arise in private placement bond issues and bank loans. Topics include: trends in bank loans and other direct-placement financings, such as letters of credit, hybrid financings, liquidity and operational financings; securities law considerations; negotiation of covenants and other contract terms; use of forward delivery arrangements, “Cinderella” and other refunding tools; application of certain MSRB rules; roles and responsibilities of Municipal Advisors and Placement Agents; and considerations relating to continuing disclosure “financial obligation” filings. The session emphasizes general concepts which practitioners may face on direct purchase transactions and specific provisions that are frequently negotiated in such transactions.
Deal Gone Bad
Chair: Hobby Presley, Maynard Cooper & Gale, Birmingham, AL
This panel focuses on three phases of a “deal gone bad”. The first phase, the default and mobilization stage, includes issues such as the standard for notice to the public market under Rule 15c2-12, the effect of cross-default provisions and “most favored lender” provisions, and mobilization efforts by the bond trustee and other creditors. The second phase, the workout phase, includes issues such as the trustee’s duties under the prudent creditor standard, communication strategies for informing bondholders, the use and effect of waivers and forbearance agreements, bond document provisions for control of remedies, and reissuance issues. The third phase, bankruptcy, will focus on eligibility for Chapter 9, some key differences between Chapter 9 and Chapter 11, and practical aspects of navigating through bankruptcy for the issuer or borrower and the creditors.
Ethics: Conflicts, Competence, and Confidentiality
Chair: Bill Burns, Gilmore & Bell, P.C., Kansas City, MO
This panel includes public finance practitioners and legal practice liability insurer representatives discussing latest trends in how bond counsel can be exposed to professional liability. The panel features a practical discussion of how exposure to liability can be reduced and how losses may be prevented and interactive questions regarding application of the model rules to public finance transactions. Emphasis will is given to understanding current and ever-expanding bases of liability under the Model Rules, recent ethics decisions, industry standards, Treasury guidance and SEC Enforcement actions. Legal malpractice carrier personnel offer unique perspectives on liability scenarios for practitioners. Current discussion topics will include changes to multijurisdictional practice, non-lawyer ownership of law firms, and other developments in ethics and professional responsibility.
Ethics: Diversity, Equity and Inclusion - What is Implicit Bias? Its Effects on the Practice of Law and Practical Solutions
Chair: Latasha R. Thomas, Clark Hill PLC, Chicago, IL
America has been heralded as the great “Melting Pot”. However, over the years, studies have shown that we all have unconscious biases that unintentionally affect every aspect of our dealings with others. Is bias an unfortunate and inevitable part of our “DNA” as Americans? This panel provides practitioners with invaluable insight into the issue of unconscious bias and solutions, as well as a forum for dialogue and exchange of ideas on this sensitive issue.
Ethics: Ethics and Technology
Chair: Ryan K. Callender, Squire Patton Boggs (US) LLP, Cleveland, OH
The COVID-19 pandemic changed the way we practice as public finance practitioners and for most of us, it is the “new normal.” Law firms, both large and small, are significantly reducing their office sizes and numbers and “work from home” is proving to not be just a fad. This panel takes an in-depth look at the ethical issues surrounding the practice in municipal finance transactions in light of these changes, and the application of ethics rules to selected topics. What efforts should we undertake to preserve client confidentiality and protect clients from threats before, during and after closing?
General Session Lessons from Reedy Creek
Chair: Scott Lilienthal, Hogan Lovells LLP, Washington, DC
Panelists:
Drew Slone, Shareholder, Winstead, PC, Dallas, TX
Rebecca Lawrence, Associate General Counsel, D.A. Davidson Companies, Minneapolis, MN
Jonathan Johnson, Transition Partner, Kutak Rock, LLC, Tallahassee, FL
Anne Ross, Principal Consultant, Muni Credit & Compliance Advisors, LLC, New York, NY
Michael Rinaldi, Senior Director, Fitch Ratings, New York, NY
Actions taken by the Florida legislature to dissolve the Reedy Creek Improvement have sent shockwaves through the market for special district bonds. Brian Egan, NABL Director of Governmental Relations facilitates the panel discussion with distinguished experts covering the Reedy Creek situation and the potential broader impact going forward on special district financings specifically and on the municipal bond market in general.
Health Care Facilities - Non-Tax Matters
Chair: Jessica M.J. Zaiger, Polsinelli PC, Kansas City, MO
This panel examines non-tax issues for financings of 501(c)(3) health care providers, with the panel addressing hot topics in health care finance. The primary focuses are expected to be considerations for forward delivery issuances, ESG disclosure and qualification considerations for health care issuances, unique structures, disclosure, and considerations for financings involving providers in the senior living industry, and rising numbers of default and potential default scenarios in the industry. The panel also addresses additional topics including: the impacts of mergers, acquisitions and joint ventures (including non-acute care facilities and providers); and varied financing structures and products unique to health care providers and facilities.
Hot Topics In Securities Law
Chair: Kimberly Magrini, Ballard Spahr LLP, Philadelphia, PA
This panel includes practitioners and securities regulators discussing the latest federal securities law issues facing the municipal bond market, with a focus on how lawyers may assist their clients in addressing these issues. While the final topics are subject to change based upon current events, expect to hear updates about (i) risk factor disclosures, (ii) interpretation and impacts of the recent SEC pronouncements and initiatives concerning ESG disclosure, and (iii) recent enforcement actions and pending rule changes impacting securities laws in the municipal market.
Legal, Commercial, and Financing Issues in P3s
Chair: Steve T. Park, Ballard Spahr LLP, Philadelphia, PA
This panel provides a high-level overview of the P3 process. It will also discuss legal, commercial, and financial issues that are often negotiated during a P3 transaction including structuring and tax issues. Hot topics will also be discussed including new types of P3 projects.
Let Me Check with My Desk NEW SESSION!
Chair: Partner, Lee Birchall, Bradley Arant Boult Cummings LLP, Birmingham, AL
Let Me Check With My Desk is a new panel that will educate bond lawyers on the role played by the municipal bond trading desk. Participants in a typical municipal bond transaction (other than bond lawyers!), including investment bankers and representatives of IPREO and DTC, give attendees a behind-the-scenes look at how municipal bonds are structured, marketed, priced, and closed. Listeners/participants leave with a better understanding of the factors that shape pricing and trends in the municipal bond market, the mechanics of underwriting an actual sale of municipal bonds, as well as special topics such as the inner workings of DTC, proprietary trading risk, and hypothetical situations posed to the investment banking panelists.
LIBOR Phase-Out Update
Chair: Barry M. Rothchild, Nixon Peabody LLP, New York, NY
This panel informs and updates participants as to the current state of the LIBOR Transition and challenges surrounding the phase-out of LIBOR, which occurred for most non-USD LIBORs at the end of 2021 and will occur for the more widely used USD LIBOR tenors on June 30, 2023.
Multifamily Housing
Chair: Jon P. Jurich, Pacifica Law Group, LLP, Seattle, WA
This panel reviews current and emerging market trends and related issues for housing practitioners, including current deal structures and issues relating to volume cap use, federal legislation, the interplay of the low-income housing tax credit and housing bonds, “workforce” and nonprofit housing developments, and disclosure considerations following COVID and with the rising interest in “ESG” investments.
Opportunity Zones & Economic Development
Chair: Kostas A. Poulakidas, Taft Stettinius & Hollister LLP, Chicago, IL
Designed for public finance attorneys involved with economic development, this panel provides an overview of Qualified Opportunity Zones and how they have been used with bond financed projects and other state and federal economic development programs. This panel is not intended to provide in-depth analysis of Opportunity Zones, but rather is targeted to help public finance attorneys understand the basics of Opportunity Zones and how to discuss Opportunity Zones with municipal and private sector clients about transactions that may involve tax-exempt and taxable bond financing.
Preparing to Deliver the Bond Opinion: Tax Diligence and Documentation
Chair: Brian P. Teaff, Bracewell LLP, Houston, TX
Purchasers of tax-exempt obligations typically rely on the “unqualified opinion” of bond counsel as to the excludability of interest on the bonds from gross income for federal income tax purposes. The tax due diligence performed by bond counsel is a critical foundation for the delivery of the opinion. This panel explores various approaches to compliance with applicable tax requirements and will engage attendees in a discussion of the due diligence, legal research and analysis, and documentation necessary to support the tax opinion.
Private Activity Bond Tests
Chair: Neil J. Kaplan, Hawkins Delafield & Wood LLP, New York, NY
This panel reviews the basic principles of the private activity bond tests as well as address issues frequently encountered in the identification, measurement, and allocation of private business use. The panelists and the audience issue spot and discuss potential private activity issues during the discussion of hypotheticals addressing both pre and post issuance events. The audience should be well acquainted with the private activity bond tests. Those who are not familiar with the application of the private activity tests or who would like a refresher on the basics should review the materials produced at The Essentials conference.
Refunding and Reissuance
Chair: William A. Milford, Bryant Miller Olive P.A., Jacksonville, FL
This panel focuses on recent developments and discusses and analyzes a variety of tax issues through a combination of hypotheticals and a roundtable discussion of refunding and reissuance trends. The panel is designed to appeal to attendees with a working knowledge of the applicable federal tax rules pertaining to refunding and reissuance transactions.
SEC Enforcement
Chair: Edward Fierro, Bracewell, LLP, Houston, TX
This panel examines recent SEC Enforcement actions and priorities, including those initiated by Chairperson Gensler and the Biden administration. The discussion explores the importance of accurate disclosures beyond those contained in offering materials and continuing disclosure filings in light of the February 2020 OMS Staff Bulletin No. 21. The panel will also consider how training and policies can impact the Staff’s charging decisions, including the significance of a robust disclosure compliance program. Additionally, the panel provides an overview of the SEC Enforcement Staff’s process and procedures and how a municipal issuer can best navigate through an investigation when it finds itself within the SEC’s crosshairs.
Tax Concepts In Bank Direct Purchase And Bank Qualification
Chair: G. Mark Mamantov, Bass, Berry & Sims PLC, Nashville, TN
In this session, tax law practitioners discuss the tax law issues that arise in bank direct placements and bank loans, with a portion of the session devoted to tax considerations regarding bank-qualified bonds. Issues that will be discussed include: determining issue price in a direct placement; reissuance in the direct purchase context; replacement proceeds issues that arise in connection with bank covenants; contingent interest analysis; weighted average maturity calculations for direct loans and margin rate factor provisions. Bank qualification discussion focuses on issues relating to refundings and deemed designations, timing of designations, impact of premium, aggregation rules and opinion practice. In connection with the discussion of reissuance, the phase-out of LIBOR, and the use of other benchmark rates are briefly discussed in connection with the reissuance discussion, although that topic is discussed in more detail in other panels.
Tax Exempt Leasing
Chair: Nate Canova, Dorsey & Whitney LLP, Salt Lake City, UT
The panel presents a short, high-level summary of the fundamentals of tax-exempt leasing (including need-to-know state law and federal tax and securities law concepts) and discuss the use of tax-exempt leases in energy savings performance contracting. Panelists then move on to a discussion of more advanced topics such as improper vendor prepayments and the avoidance of investment-type property and private loans; tax-exempt financing of intangibles such as software, service contracts, training, support and warranties; and the nuances of qualified volunteer fire department financings. Panelists use hypotheticals when presenting certain of the advanced concepts.
Tax Hot Topics
Chair: Christie L. Martin, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, MA
This panel discusses current federal tax issues, including any recently released notices, rulings, regulations and/or other guidance. The panel is expected to address the latest legislative financing proposals and matters that are likely to arise with the change in interest rate environment. In order to address any late-breaking topics, the specific topics are subject to change. Final topics that will be addressed were communicated to attendees via NABL Connect prior to The Workshop.
Tax Issues in 501(c)(3) Financings
Chair: Taylor L. Klavan, Squire Patton Boggs (US) LLP
This panel focuses on Section 501(c)(3) organizations created by or “backed” by developers or other private parties to accomplish tax-exempt bond financing, with discussion of the issues that arise under Section 501(c)(3) itself as well as the structuring concerns under Sections 145 and 141 and the management contract safe harbors of Revenue Procedure 2017-13. The panel also provides an overview of the unique aspects of qualified Section 501(c)(3) bond transactions, with emphasis on the ownership requirement of Section 145 and how it impacts financing leasehold improvements and structuring transactions involving a leasehold interest. Finally, the panel works through the patchwork of options for classifying certain entities as organizations described in Section 501(c)(3) as compared with Section 115(1)/instrumentality or Section 501(c)(4), and how that status impacts available financing options.
The Role of Issuer's Counsel in a Bond Issue
Chair: Everett B. Martinez, Denver International Airport, Denver, CO
This panel explores the role of issuer’s counsel with a particular focus on the perspective of the in-house issuer’s counsel. How can issuer’s counsel help clients set themselves up for success in their transactions? How should issuer’s counsel interact with the other legal and financial professionals involved in the bond issue? How does the issuer’s counsel make sure that its client is protected as much as possible while achieving the issuer’s goals for the financing? What is the role of issuer’s counsel after bonds are issued, and how can the issuer’s counsel help the issuer achieve post-issuance compliance? Does the role change if issuer’s counsel is outside or internal counsel?
Underwriter’s Counsel Roundtable
Chair: Karen M. Jordan, Dentons US LLP, St. Louis, MO
This panel reviews the duties, responsibilities, and potential liability for underwriters in public offerings of municipal securities and the role of underwriter’s counsel in representing underwriters. The panel also includes a discussion of best practices in evaluating and documenting the transaction from the outset through closing.