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James F. Fotenos

Mr. Fotenos concentrates on corporate, securities, and pass-through entity counseling. He has extensive experience in representing issuers in private equity and debt financings, corporate governance, and mergers and acquisitions.

Entity Formation

Mr. Fotenos represents corporate and pass-through entities in their organization, financing, and governance, including business, tax, and securities advice.

Securities Law

Mr. Fotenos has extensive experience in representing issuers in the registration of equity securities with the SEC, periodic reporting under the Securities Exchange Act of 1934, proxy and tender offer regulation, and NASD and Blue Sky regulation. He has represented issuers in connection with bank and institutional investor financing.

Equipment Leasing

Mr. Fotenos served as primary outside counsel for The Cronos Group for over 20 years, representing it at all stages of its growth and operations, and has extensive experience in container lease financing and container leasing. He oversaw Cronos’ SEC reporting, container financing, and managed container and joint venture relationships.  He represented Cronos in the negotiation of its sale in August 2007 to an entity which management joined, which included representing the transaction committee of the Cronos board, overseeing the process that led to the transaction, negotiating the acquisition agreement with the buyer and its counsel, and preparing and filing Cronos’ proxy statement and Schedule 13E-3 transaction statement.

Mr. Fotenos also represented Cronos in connection with its reorganization in July 2010, in which it received a majority equity investment from funds affiliated with Kelso & Company, L.P., one of the oldest and most established firms specializing in private equity investing. As part of the transaction, Cronos purchased additional container assets, which increased the size of its container fleet to $1 billion, and concurrently entered into a new $765 million revolving credit facility with its major lender.  Mr. Fotenos represented Cronos in negotiating and drafting the transaction documents, the asset transfers, and the financing.  Cronos also relied upon Greene Radovsky for tax advice.

Mr. Fotenos continued as Cronos’ primary outside corporate counsel from 2010 until the sale of the Cronos Group to the Seaco marine container leasing group, affiliates of Bohai Leasing Co. Ltd. (a PRC company listed on the Shenzhen Stock Exchange) on January 20, 2015. Greene Radovsky, together with Debevoise & Plimpton LLP (counsel to Kelso), represented Cronos in connection with the negotiation and consummation of the transaction.

Mr. Fotenos has continued his representation of container leasing companies by serving as primary corporate counsel to the CS Leasing Group, managed by alumni of Cronos, which is engaged in the leasing of specialized cargo containers, including tank containers and dry freight special containers (half heights, palletwides, and bulkers), his representation of TAP Ltd., a container leasing investment company, and his representation of Équipe Container Services Inc., a portable container storage company.

Real Estate Investment

Mr. Fotenos and Greene Radovsky serve as primary outside counsel to The Hardwick Group, San Francisco, organized early in 2018 to invest in multi-tenant real properties. To date, the Group has formed two LLCs to purchase multi-tenant properties in the State of Washington.  The firm represented the Group in negotiating the purchase and closing of the properties, negotiating the debt financing through Freddie Mac and Fannie Mae lenders, and in assisting the Group in preparing equity disclosure and subscription documents in offerings conducted as Rule 506(b) private placements.

Vineyard and Winery Representation

Mr. Fotenos has served as primary outside corporate counsel for Paragon Vineyard Co., Inc., San Luis Obispo, and represented Paragon in its joint venture with Chalone Wine Group, Ltd. (subsequently acquired by Diageo Chateau & Estate Wines Company), the licensing of Paragon’s trade name “Edna Valley Vineyard,” and the subsequent sale by Paragon of its interest in the joint venture to E. & J. Gallo Winery.

Hedge Funds

Mr. Fotenos has served as co-U.S. counsel for a group of offshore hedge funds, advising the funds on offering disclosure, Securities Act compliance, U.S. taxation, Exchange Act §§ 13 and 16 compliance, and operations.

PROFESSIONAL MEMBERSHIPS

Mr. Fotenos is a member of the California State Bar, and is admitted to the U.S. District Courts for the Central and Northern Districts of California, the Ninth Circuit Court of Appeals, the U.S. Supreme Court, and the U.S. Tax Court. He is a member of the Bar Association of San Francisco and the American Bar Association.

Mr. Fotenos served as Co-Chair (2015-2017) of the Opinions Committee of the Business Law Section of the California State Bar. In that capacity, he served as Co-Chair of the working group of members of the Opinions Committee and the Business Law Section’s Partnerships and Limited Liability Companies Committee that published in 2016 an update of the Partnerships and LLC Committee’s reports on third-party closing opinions for LLCs and partnerships.  He also serves as a Co-Editor of In Our Opinion, the quarterly newsletter of the Legal Opinions Committee of the Business Law Section of the American Bar Association.  He served as Co-Chair of the Corporations Committee of the Business Law Section for 2004-2005, and as the Committee’s Vice-Chair of Legislation for 2003-2004.  While serving as Co-Chair of the Committee, Mr. Fotenos was one of the editors of the Committee’s 2005 report (revised 2007), “Legal Opinions in Business Transactions (Excluding the Remedies Opinion).”  He served as a member (1991-1994) and Treasurer (1993-1994) of the Executive Committee of the Business Law Section, and as Chair of the Partnerships Committee of the Business Law Section from 1989-1990.  Mr. Fotenos was the primary draftsman of SB 2575, which added merger and dissenters’ rights provisions to the California Revised Limited Partnership Act.  He served as Chair of the LLC Working Group of the Business Law Section, which sponsored SB 469, to enact a limited liability company statute in California (which was enacted in 1994).  Mr. Fotenos also served as a member of the California State Senate Commission on Corporate Governance, Shareholder Rights and Securities Transactions, known as the Killea Commission.

Mr. Fotenos was an advisor to the drafting committee for the National Conference of Commissioners on Uniform State Laws that prepared the Uniform Partnership Act (1994) (known as RUPA). Mr. Fotenos has lectured on partnerships and limited liability companies.

PUBLICATIONS

  • Co-author, California Practice Guide, Corporations (The Rutter Group);
  • co-author, California Practice Guide: Pass-Through Entities (The Rutter Group);
  • co-editor, In Our Opinion (Legal Opinions Committee, Business Law Section, American Bar Association);
  • author, “Legal Opinions” in Drafting Business Contacts: Principles, Techniques & Forms (CEB);
  • co-author, “Fiduciary Duties in For-Profit Corporations,” in Understanding Fiduciary Duties in Business Entities (CEB);
  • co-author, “Close Corporations,” in Organizing Corporations in California (CEB);
  • contributor to CEB’s Selecting & Forming Business Entities (California Business Start-Up Series);
  • co-author, “Operating a Foreign LLC” in Forming and Operating California Limited Liability Companies (CEB);
  • “Perfection and Priority of a Security Interest in Internationally Mobile Goods,” LJN’s Equipment Leasing Newsletter (October 2012);
  • “Rule B: Good Riddance to Maritime Pre-judgment Attachments of EFTs,” LJN’s Equipment Leasing Newsletter (March 2010);
  • speaker and co‑author, Fundamentals of Third‑Party Legal Opinions, 2008 Annual Meeting, State Bar of California (September 26, 2008);
  • co-author, “Opinion Law Developments – 2007,” Business Law News (2007 Annual Review) (State Bar of California);
  • “Can a Remedies Opinion be Given on an Equipment Lease?” LJN’s Equipment Leasing Newsletter (February 2006);
  • “Close Corporations In California,” California Business Law Practitioner (CEB Winter 2005) (co-author);
  • “Conflicting Currents: The Obligation to Maintain Inviolate Client Confidences and the New SEC Attorney Conduct Rules,” 32 Pepperdine L. Rev. 89 (Corporations Committee of the Business Law Section of the California State Bar (co-author) 2004);
  • “Understanding the Jobs and Growth Tax Relief Reconciliation Act of 2003,” LJN’s Equipment Leasing Newsletter (July 2003);
  • “Perfecting Security Interests Against Offshore Lessors Under Revised Article 9,” LJN’s Equipment Leasing Newsletter (March and April 2002);
  • “Drafting Partnership Agreements and LLC Operating Agreements in a Check-a-Box World,” California Business Law Practitioner (feature article) (Winter 1997);
  • “Forms for Use in Converting a Law or Accounting Firm Partnership to an LLP,” XI California Business Law Practitioner (feature article) (Winter 1996);
  • “The Campaign to Eliminate the Vicarious Liability of Partners for Partnership Debts Captures Sacramento: California Adopts Limited Liability Partnership Legislation (for Lawyers and Accountants Only),” California Business Law Reporter (feature article) (November 1995 and January 1996);
  • FDIC v. O’Melveny & Myers: Does Securities Counsel Owe To Investors and To Its Client a Duty To Conduct a Due Diligence Investigation of the Offering?” 15 Bus. Law News 3 (feature article) (Winter 1993); and
  • “California’s New Limited Partnership Merger Statute,” California Business Law Reporter (January 1991).

EXPERT CONSULTATIONS

  •  Siegal v. Solidus Networks, Inc., San Francisco Superior Court Case No. CGC 07-465156 (2009-2010). Served as expert consultant to plaintiff (represented by Kastner Kim LLP, Palo Alto). Retained to provide expert consultation/witness testimony on duty of candor and “reporting up” by officer of Delaware corporation.
  • Chiu v. Storm8, Inc., San Mateo Superior Court Case No. CIV 488342 (2010). Retained as expert consultant/witness for plaintiff, represented by Kastner Kim LLP, to provide expert advice on conversion of California limited liability company into Delaware corporation.
  • Monty v. Leis, 193 Cal. App. 4th 1367 (2d Dist. 2011). Retained as expert consultant for plaintiffs, represented by Johnson Bottini LLP, to provide expert advice on application of Corp. Code § 405 (Authorization of Additional Shares for Options and Conversion Rights).
  • Kaufman v. Rambus, Inc., Santa Clara Superior Court Case No. CIV 109-CV-151985 (2011). Retained as expert consultant/witness for plaintiff, represented by Kastner Kim LLP, to provide expert advice on the right of an optionee to exercise vested stock options during a “blackout” period imposed by the issuer pending restatement of its financial statements.
  • Hanna v. Abracon Corp., Orange County Superior Court Case No. 30-2011-0046 7995 (2012). Retained as expert consultant/witness for plaintiff, represented by Avner & Avner, to provide expert advice on a director’s duties and responsibilities under California law, including pursuing or refraining from pursuing corporate opportunities.
  • Diamond Environmental Services, LLC. v. Valenta, American Arbitration Association Case No. 73 180 Y 36822 08 (San Diego 2013). Retained as expert consultant/witness for plaintiff, represented by Siegel & Wolensky LLP, to provide expert advice on non-competition agreement and doctrine of contract repudiation.
  • Hamilton v. Andrews, Santa Clara Superior Court Case No. 114 CV 265 921 (2015). Retained as expert consultant/witness for plaintiff, represented by Walkup, Melodia, Kelly & Schoenberger, to provide expert advice on whether the relationship between defendants constituted a partnership or joint venture under California law.
  • Cooner Sales Company, LLC v. New England Electric Wire Corporation, American Arbitration Association Case No. 72-20-0900-0518 (Los Angeles 2015).  Retained as expert consultant/ witness for claimant, represented by Arent Fox LLP, to provide expert advice and testimony on governance and related disputes concerning a California LLC, including the law applicable to the disputes, wrongful withdrawal as member of a California LLC, and information requirements under the relevant LLC statutes.
  • Russo v. Andrews, Contra Costa Superior Court Case No. FCS 043 552 (2015-2016). Retained as an expert consultant/witness for defendants and cross-complainants, represented by Archer Norris, to provide expert advice and testimony on the fiduciary duties of managers for California limited liability companies, including the duties of loyalty, care, and candor.
  • Jones/Temecula Holdings, Inc. and Fletcher Jones, Jr. v. Blumenthal, American Arbitration Association Case No. 01-17-0006-0000 (Las Vegas 2018). Retained as expert consultant/ witness for claimants, represented by Arent Fox LLP, to provide expert advice and testimony on the grounds for dissolution of a California LLC, and the fiduciary duties owed by the co-managers of the LLC under the LLC’s operating agreement and California law.

EDUCATION

A.B., 1968 (with distinction), Stanford University J.D. (1971) (Order of the Coif) Stanford School of Law M.B.A. (1971) Stanford School of Business