Model Closing Opinion Letter (Annotated) - American Bar Association

2 Model Closing Opinion Letter (Annotated)
board of directors) and its owners (e.g., shareholders or partners)
necessary to bind the client have been taken or obtained and the
Transaction Documents have been duly executed pursuant thereto.
Thus, when the client’s jurisdiction of organization is other than
the Opining Jurisdiction, the Remedies Opinion is given on the basis
that it also addresses the Law of the client’s jurisdiction of organization
to the extent it governs the client’s organizational status
and authorization of the Transaction Documents and any other
corporate, partnership, or similar requirements with respect to its
execution. If the Opinion Giver is not competent to give a corporate
law opinion under the Law of such jurisdiction, it should either expressly
state assumptions regarding such issues (see paragraph
(B)(4), p. 95, below) or rely upon Other Counsel in respect of one or
more of those matters (see paragraphs (D)(1), (D)(2), p. 99, below).
(j) Public Policy. The TriBar Report states in section 1.9(i) that
“General unspecified ‘public policy’ exceptions are not used because
they make the entire opinion unacceptably vague, requiring the
opinion recipient to guess at the opinion giver’s source of concern.”
(k) Other Issues. Where custom is unclear, the TriBar Report
(§ 3.5.3) recommends that the Opinion Recipient should request
Opinions on the matters it wishes to have covered; the TriBar Committee
believes that it would ordinarily be unproductive for Opinion
Givers to try to identify in Opinion Letters each area that is not
covered. Following this line of reasoning, the Legal Opinion Committee
is of the opinion that a number of other specific legal issues
should be deemed not to be covered by an Opinion Letter unless
specifically addressed; these would include pension and employee
benefit laws, environmental law, OSHA, RICO, labor laws, tax
law, criminal laws of general application, Hart-Scott-Rodino requirements,
and the Exon-Florio Amendment to the Defense Production
Act of 1952. See Glazer § 9.8.4. Of course, where there is
any serious question and the issue is not covered explicitly, the better
course is to discuss the question with the Opinion Recipient,
and either cover the issue in a specific Opinion or make the exclusion
explicit.
(l) Choice-of-law Provision. Insofar as the Law governing the
Transaction Documents is concerned, the effectiveness of a chosenlaw
provision of an agreement is covered by the Remedies Opinion.
See TriBar Report § 4.4. If the contract being opined upon chooses
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