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Noteworthy Developments in Nonprofit Corporation Law

Noteworthy Developments in Nonprofit Corporation Law. Michael W. Peregrine Gardner, Carton & Douglas April 25, 2003. WELCOME. Goals of Presentation. To review the significant series of developments in nonprofit and charitable trust law that have occurred in the last several years.

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Noteworthy Developments in Nonprofit Corporation Law

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  1. Noteworthy Developments inNonprofit Corporation Law Michael W. Peregrine Gardner, Carton & Douglas April 25, 2003

  2. WELCOME

  3. Goals of Presentation

  4. To review the significant series of developments in nonprofit and charitable trust law that have occurred in the last several years.

  5. To focus on specific developments with implications for the not-for-profit corporate director.

  6. To provide specific recommendations for addressing these issues with nonprofit charitable clients.

  7. The Outline/Bibliography/Other Resources

  8. Part IRecent Noteworthy CaseLaw Developments

  9. Health Midwest: • Kansas Litigation • Missouri Litigation

  10. CareFirst: the opinion of the Insurance Commission.

  11. HealthPartners • Business Compliance Review • “Appointment of Directors” Litigation

  12. Note: The Implications of the HealthSouth Controversy.

  13. Note: Recently Released OIG/AHLA Guidance.

  14. In Re Milton Hershey School Trust • The “Public Interest” as a Trust Beneficiary • Liberalized Preliminary Injunction Criteria • Impact on Governance

  15. The Banner Health System Litigation • Increase in value from contributions and benefits should be retained by the community

  16. Littauer v. Spitzer • “Good News” for Nonprofit “M&A”?

  17. The AHERF Settlement • Continued Focus on Application of Restricted Gifts • “Zone of Insolvency” Issues

  18. The Virginia Experience

  19. Allina Health System • Affiliate Divestiture • Waste of Charitable Assets • Impact on Management, Governance

  20. Emerging Issues: • Parent/Subsidiary Conflicts • Charitable Solicitation Concerns • Imprudent Investment

  21. Notable Private Actions • Chairman of the Board v. Trinity • Smithers v. St. Luke’s-Roosevelt Hospital • Eychaner v. Roosevelt University • In re: Terra Foundation

  22. The Cleveland Clinic • Art Institute of Chicago • United Way of National Capital Area • Barnes Foundation Museum

  23. Note: Emerging Issue Conflicts of Interest in Integrated Parent/Subsidiary Health Systems.

  24. Part IIThe Impact of the “CorporateResponsibility Environment”

  25. And Just What Is ThatEnvironment?

  26. NASCO The National Association of State Charity Officials

  27. Key Developments • Powers Report • NYSE Report • Sarbanes • NASCO Focus • IRS Announcement

  28. “The Powers Report” Report by the Special Investigative Committee of the Board of Directors of Enron Corp. February 1, 2002

  29. Board and Management oversight failed for many reasons. • The concept of the related party transactions was flawed.

  30. Board-adopted controls were inadequate and not adequately implemented. • Senior management did not exercise sufficient oversight.

  31. Senior management did not respond adequately when issues arose that required a vigorous response. • The Audit and Compliance Committee of the Board carried out its assigned review in a cursory manner.

  32. The Board was denied important information that might have led it to take action. • The Board did not fully appreciate the significance of some of the specific information that came before it.

  33. NYSE Corporate Accountability Report (June 6, 2002) • Increasing Role and Authority of Independent Directors • New Audit Committee Requirements

  34. Encouraging Focus on Good Corporate Governance • New Control and Enforcement Mechanisms • Improving Board Education and Training

  35. Sarbanes-Oxley Act (July 30) • Designed to protect the interests of investors and provide market stability. • Does not apply to nonprofits

  36. Oversight for public accounting industry • Rules for auditor/client relationship • Penalties for corporate financial crimes

  37. Procedures for Executive and Board Conduct • Ethical obligations for corporate counsel • Financial disclosure protections for investors

  38. NASCO • Focus at state level of oversight of charitable corporations and protection of charitable assets, and the duties and obligations of officers and directors.

  39. IRS • Modification of Form 990 Return to Include Questions Related to the Integrity of the Organization’s Financial Statements.

  40. Part IIIThe Relevance to Nonprofits

  41. Need to preserve charitable assets • Preserve reliability of financial statements • Donors’ reliance • “Early warning systems” • Bondholders

  42. State charity officials perceive an enhanced oversight obligation over nonprofit charities following AHERF • The “Few Bad Apples” Analogy

  43. Part IVLessons Learned;Governance Guidelines

  44. Conclusion

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