On March 7, 2016, the Supreme Court of the United States held that the citizenship of an unincorporated Maryland real estate investment trust (“REIT”), for diversity jurisdiction purposes, is based on the citizenship of all its members, including its equity owners. In Americold Realty Trust v. ConAgra Foods, Inc., the Court affirmed a Tenth Circuit Court of Appeals holding that, in determining federal court diversity jurisdiction, the citizenship of an unincorporated REIT hinges upon the citizenship of each trust beneficiary. Although the issue in this case can be stated simply – Where is an unincorporated REIT a citizen for purposes of diversity jurisdiction? – the implications of this decision may be far from simple.
Historically, decisions about entity formation were based primarily on state, local and property tax implication and other considerations that might bear reexamination. The Supreme Court’s ruling in Americold Realty Trust v. ConAgra Foods, Inc. obviously will affect how courts determine the citizenship of REITs, and will create challenges to unincorporated REITs’ and other business entities’ ability to litigate in federal court. Whether and in what contexts this decision may merit reconsideration of the pros and cons of an unincorporated structure will be considered in this presentation.
Rebecca Lamberth, co-chair of Duane Morris’ Commercial, Securities and Antitrust Litigation Group, and Richard Silfen, formerly the general counsel of a publicly-traded REIT and currently a corporate partner at Duane Morris who regularly advises REITs and clients considering their formation, will discuss both the litigation and the non-litigation implications of the Americold Realty Trust v. ConAgra Foods, Inc. decision. Those issues encompass choice of entity, entity formation, business negotiation and agreement drafting considerations.
Rebecca M. Lamberth is co-head of the Commercial, Securities and Antitrust division of Duane Morris' Trial Practice Group. Ms. Lamberth practices in the area of securities and complex commercial litigation. She represents public and private companies, including REITs, with extensive experience in complex business and securities litigation, securities disclosure and corporate governance. Ms. Lamberth has defended companies and corporate officers and directors, lawyers, accountants and other professionals. Her clients include law firms, real estate investment trusts, global financial services companies, distributors and major insurers and insurance brokers.
Ms. Lamberth also advises public company clients on securities disclosure, corporate governance and D&O insurance issues and represents corporate clients before the SEC. A significant portion of her practice is dedicated to advising and representing lawyers facing potential liability.
Atlanta Magazine named Ms. Lamberth a Georgia Super Lawyer in 2006 through 2013. She also was listed in the Super Lawyers Corporate Counsel Edition. She is a Master of the Joseph Henry Lumpkin American Inn of Court.
Ms. Lamberth frequently represents lawyers and law firms, providing counseling and training on professional conduct rules, recent opinions in law firm cases and aw firm risk management. She has successfully defended lawyers and law firms in disciplinary matters and legal malpractice and other professional liability claims, including claims alleging fraud, conspiracy and aiding and abetting client misconduct.
Richard A. Silfen practices in the area of corporate law with concentrations in mergers and acquisitions as well as securities. Mr. Silfen also seeks to leverage his prior board service and senior executive experiences to benefit clients of the firm.
In the area of M&A, Mr. Silfen regularly advises publicly traded and privately held companies, boards of directors and special committees and fund sponsors and their portfolio companies in mergers and acquisitions and related strategic matters. In addition, Mr. Silfen advises clients in connection with control and non-control investments in publicly traded and privately owned businesses.
In the area of securities, Mr. Silfen advises publicly traded companies in connection with public and private equity and debt securities offerings and counsels privately owned companies in their efforts to become publicly traded. He also works with clients to facilitate public reporting and advises on compliance with applicable securities regulations. Mr. Silfen also advises fund sponsors and their portfolio companies in securities and other capital-raising transactions.
Mr. Silfen also assists emerging and private equity-backed companies to develop plans for the growth and development of their businesses and technologies, including collaborative and strategic partnerships, and joint venture arrangements.
Since 2009, during Mr. Silfen’s prior tenure with Duane Morris, Chambers USA: America's Leading Lawyers for Business included him as one of the leading corporate lawyers in Pennsylvania. Mr. Silfen has been included in two categories of Chambers listings: Corporate/M&A & Private Equity and Corporate/M&A: Securities. Chambers further described Mr. Silfen as "a very smart lawyer." Mr. Silfen joined Duane Morris in June 2015, having served as executive vice president and general counsel of VEREIT, Inc. (formerly American Realty Capital Properties, Inc.) from March 2014 through May 2015.
Mr. Silfen is a 1987 graduate of the University of Alabama School of Law and a 1983 graduate of Baylor University with a B.A. in Physics.
Informative and on point
Very good CLE. The speakers made what I thought was going to be a dull course very interesting. A new perspective on diversity was quite good.
Interesting subject for me, thank you.
Engaging speakers. I enjoyed this programs even though I knew little about the subject matter before staring the course.
Excellent presentation by effective and interesting panelists.
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