Committee Activity in Review

As published in the NY Business Law Journal:

SUMMER 2018 NY BUSINESS LAW JOURNAL
BANKRUPTCY LAW COMMITTEE

Our committee has been actively engaged in responding to multiple proposed amendments to the Notfor- Profit Corporation Law being considered by the legislature and legislative committees, with the indispensable assistance of Kevin Kerwin, the Association’s Deputy General Counsel. Among the proposed amendments are amendments relating to the regulation of “key persons”; voting requirements of the boards of certain corporations; and university faculty practice corporations. In addition, the committee has been interfacing with other organizations in the nonprofit legal sector in connection with these proposed amendments.

The committee met on January 24, 2018 as part of the Association’s Annual Meeting. Planning for future initiatives was discussed. The two Co-Section Chiefs of the Charities Bureau Enforcement Section presented a very well-received CLE program entitled “A View From the Attorney General’s Charities Bureau Enforcement Section

- David Goldstein, Chair

WINTER 2017 NY BUSINESS LAW JOURNAL
BANKRUPTCY LAW COMMITTEE

Our committee held a meeting on September 14, and in addition to other committee business, we had a presentation from Ken Cerini, of the accounting firm of Cerini & Associates, LLP, on the topic “Nonprofit Accounting: What Lawyers Need To Know.” Ken is the managing partner of Cerini & Associates, and is the executive responsible for the administration of the firm’s not-for-profit and educational providers practice group.

On November 30, in cooperation with the Trust & Estates Law Section (in particular, we thank Marion Fish for her partnership) and with co‑sponsorship from the Business Law Section, our committee presented an all-day CLE at the State Bar Center in Albany. The program was entitled “New York Not-For-Profit Organizations Practice Symposium: From Basics to Hot Topics.” The program was designed to address a variety of levels of skill and experience. In-person attendance was excellent, and there was robust attendance via webcast, as well.

Mike de Freitas, Josh Gewolb, Mike Cooney, Fred Attea and David Goldstein of our committee were among the presenters. There were additional presenters from around the State, as well as from Washington, D.C. James Sheehan, Charities Bureau Chief, and Donna Cole-Paul, Chief of the Charities Bureau Transactions Section, attended and presented at the invitation of our committee. Their presentations were particularly well-received. The program will be archived and will be available for on-demand purchase and viewing.

Our next committee meeting is scheduled for January 24, 2018 as part of the Association’s annual meeting.

- David Goldstein, Chair

summer 2017 NY BUSINESS LAW JOURNAL
NOT-FOR-PROFIT CORPORATIONS LAW COMMITTEE

The Not-for-Profit Corporations Law Committee’s years-long efforts to address some of the most problem­atic provisions and unintended consequences of the Non­profit Revitalization Act of 2013 culminated in the amend­ments to the Not-for-Profit Corporation Law signed by Governor Cuomo in late 2016 that became effective on May 27, 2017. To bring these changes to fruition, our Committee, under the leadership of Fred Attea, our prior chair, worked in close collaboration and partnership with Lawyers Alliance for New York, the Nonprofit Coordinat­ing Committee of New York, the New York State Law Re­vision Commission and the New York City Bar Associa­tion. This coalition, in turn, worked with the leadership of the Attorney General’s Charities Bureau and with the legislature, with the indispensable assistance of Ron Ken­nedy, the NYSBA’s Director of Governmental Relations, to achieve consensus and passage of the ultimate package of statutory changes. 

At the Committee’s winter 2017 meeting, we pre­sented a CLE that focused on the aforementioned amend­ments to the Not-for-Profit Corporation Law and ana­lyzed the impact of these changes. Presenters included Sean Delany, Executive Director of Lawyers Alliance for New York, one of our principal partners in the coalition that proposed and shepherded through these important statutory changes. Committee members Fred Attea, Mike de Freitas, Josh Gewolb and David Goldstein also pre­sented. 

A Committee meeting is being planned for the early fall that will include a substantive presentation on an area of interest to practitioners. In addition, the Committee (together with the Trusts and Estates Law Section) is orga­nizing and will be co-sponsoring a full-day CLE program on not-for-profit corporation law and practice to be held in Albany on Thursday, November 30, 2017. The program will also be available live via webcast and will be recorded and archived for on demand viewing. 

- David Goldstein, Chair

winter 2016 NY BUSINESS LAW JOURNAL
NOT-FOR-PROFIT CORPORATIONS LAW COMMITTEE

The Committee held a meeting on November 8, 2016. The following matters were discussed:

Report on Pending NPRA Amendments—The first item discussed was the proposed amendments to the Non-Profit Revitalization Act (“NPRA”). Since the 2016 legislative session ended in June 2016, our Committee members were active in following up on the amendments to the NPRA that passed in June. These amendments would make significant improvements to some of the unforeseen difficulties of the original NPRA and were developed with considerable input by this Committee and other key groups in New York, including our counterpart committee from the New York City Bar Association, the Lawyers Alliance of New York, the Non-Profit Coordinating Committee of New York, and the New York State Law Revision Commission. Committee members, including Mike de Freitas from our Committee, and NYSBA’s governmental relations director, Ron Kennedy, continued contact with those groups and met with counsel to the Governor to provide information on the NPRA and the amendments. The amendments had not been submitted to the Governor at the time of the meeting but were submitted on November 16, 2016.

Incorporation Issues Under Existing Law—Gary Trechel and Richard DiGiovanni, staff counsel with the Department of State, discussed practice issues under the Not-for-Profit Corporation Law, including the use of corporate indicators in names, the specification of purposes in the certificate of incorporation, and the status of former “Type D” corporations under the NPRA. Mr. Trechel noted that the NPRA amendments greatly reduced the number of filing issues. 

501(c)(4) Corporations and Lobbying—Mike Cooney discussed recent developments regarding 501(c)(4) social welfare organizations, including a case in New York in which it was held that a 501(c)(4) organization’s solicitation activity was subject to Article 7-A of the Executive Law (which governs charitable solicitations). He also discussed the broad ethics bill in the last legislature, S. 8160, which included a requirement for broad disclosure of donors by organizations that happen to spend a small amount on lobbying. 

Religious Corporations Law—Mike de Freitas and Alyssa Gross discussed the state of the Religious Corporations Law. It has been amended only in a few isolated respects over the years and in various areas is still outdated and/or does not match prevailing practice. Among the more problematic issues is the almost exclusive statutory requirement for the congregation governance model, as opposed to a board-led or pastor-led model. 

Incorporation in Other Jurisdictions—Daniel Kurtz joined the meeting and led a discussion regarding the trend of incorporating outside New York. He noted that, although one of the purposes of the NPRA was to make the New York law more hospitable, the result had been the opposite. There was a general discussion about the growing trend to incorporate in Delaware and possible ramifications for not doing so.

The Committee will continue to study the above is-sues. Committee members were urged to make further suggestions for discussion topics for the upcoming January meeting. The meeting was duly adjourned.

- Michael de Freitas, Secretary of the Meeting;Fred Attea, Chair


summer 2016 NY BUSINESS LAW JOURNAL
NOT-FOR-PROFIT CORPORATIONS LAW COMMITTEE

The Not-for-Profit Corporations Law Committee continued to collaborate with the State Law Revision Com-mission, the New York City Bar Association, the Lawyers Alliance for New York, and the Nonprofit Coordinating Committee of New York to identify aspects of the Non-Profit Revitalization Act of 2013 needing improvement. The Committee’s view is that although the Act significantly improved many aspects of corporate structures and transactions, parts of the Act present challenges and problems in implementation that could be alleviated without impairing the overall purposes of the Act. The group’s efforts over the winter and spring culminated in a consensus proposal addressing independent directors, related party transactions, and committees. We also engaged with the Attorney General’s Charities Bureau and legislators. A bill based on our proposal was introduced in the 2016 session (S.7913/A10365).

In our Spring meeting, the Committee also discussed common problems practitioners encounter in advising not-for-profit corporations and the emerging trend of forming non-profits in other jurisdictions, primarily Delaware, including the related topic of re-incorporating existing non-profits in another state. Finally, the Committee discussed possible issues or subjects that could or should be addressed by the Committee in the future, including other parts of the Not-for-Profit Corporation Law that need attention and other New York statutes that apply to non-profits, such as the Religious Corporations Law. 

- Frederick Attea, Chair 

WINTER 2015 NY BUSINESS LAW JOURNAL
NOT-FOR-PROFIT CORPORATIONS LAW COMMITTEE

The Not-for-Profit Corporations Law Committee has been working with the Lawyers Alliance for New York, the Non-Profit Coordinating Committee of New York, the New York Law Revision Commission and the New York City Bar Association to consider possible changes to the Nonprofit Revitalization Act (“Act”) with a view to eliminating unintended consequences of the Act that do not appear to further its objectives. These groups have now reached out to legislative subcommittees and the Charities Bureau to achieve a consensus over the possible revisions which they believe to be in the public interest. The interaction of these groups has been constructive and our Committee believes that they will resolve many of the most problematic issues created by the Act. The Committee also believes that beyond these major changes there needs to be an ongoing modernization of the Not-for-Profit Corporation Law to deal with issues not addressed by the Act. The Committee will have a panel discussion at the winter meeting of the Business Section of the New York State Bar Association to review these proposals for change and new issues that need to be addressed.

- Frederick Attea, Chair

SUMMER 2015 NY BUSINESS LAW JOURNAL
NOT-FOR-PROFIT CORPORATIONS LAW COMMITTEE

the Act provided long-overdue reforms, there has been difficulty in complying with certain of its provisions and unintended consequences of other provisions. The Committee has been working with many groups including The Lawyers’ Alliance for New York, the Law Revision Commission, the New York City Bar Association and the Nonprofit Coordinating Committee of New York to assess the impact of the Non-Profit Revitalization Act and to provide suggestions for statutory amendments to eliminate some of the problems and to clarify ambiguities. These efforts have recently culminated in suggestions for amendments to the Not-for- Profit Corporation Law that have been presented to the appropriate legislative committee chairpersons.

- Frederick Attea, Chair

Summer 2014 NY BUSINESS LAW JOURNAL
Not-for-profit CORPORATIONS LAW COMMITTEE

After a struggle lasting more than ten years, members of the Business Law Section of the New York State Bar Association, working with other members of NYSBA and the NYSBA staff, were able to secure passage of the Non-profit Revitalization Act last year, upgrading the New York Not-for-Profit Corporation Law. Our members who were active in the effort noted that there was no single “home” within NYSBA for attorneys working for, or providing legal services to, not-for-profit corporations. After consultations with NYSBA executive officers an to meet that perceived need, our Executive Committee has established a new standing committee to focus on the legal needs and interests of not-for profit corporations. The inaugural Chair of the committee is Frederick Attea, Esq., of Phillips Lytle in Buffalo, who was instrumental in the effort to secure passage of the statute last year. If you work for or provide services to not-for-profit corporations, r if you are otherwise interested in the legal affairs of such corporations, we invite you to join the committee. If you want to join the committee, send an e-mail to BusinessLaw@NYSBA.org. Membership in this and all other Business Law Section committees is free to all members of the Section.

- Jay L. Hack, Outgoing Section Chair