IN-HOUSE COUNSEL

Rescue worker
Thomas F. Berner, First Capital
First Capital’s Tom Berner

NAME AND TITLE: Thomas F. Berner, executive vice president and general counsel

AGE: 52

FINANCING THE SMALL GUY: First Capital — formally known as FCC LLC — makes loans to small and midsize companies that secure their borrowing with assets or inventory. The company's roots date to 1987, with its current incarnation taking shape in 2003, when a group of investors acquired the assets. The new ownership installed John Kiefer, whom they hired away from Capital Factors LLC (now called Capital Business Credit), as chief executive officer. Mark Sunshine, a Wall Street attorney and accountant, was brought in as president. They have focused the company on customer service.

"We have grown exponentially every year since then,'' Berner said. "We do $4 billion in turnover. We have equity of well over $100 million. Three years ago, we were nothing like that.''

First Capital employs approximately 150 people at its headquarters in West Palm Beach, Fla., and offices in New York, Los Angeles, Oklahoma City, Atlanta and Fort Lauderdale, Fla. Berner recently hired staff for an expansion into overseas markets, primarily in China and Europe.

"The entire industry is becoming internationalized, because the manufacturing base of America is going overseas,'' Berner said. "Accounts-receivable financing and asset-based lending deals with the smaller manufacturing companies. You have to follow your clients.''

ROUTE TO CURRENT POSITION: Berner, who has an extensive background in transnational law, arrived at First Capital via Afghanistan. In 2003, he took a leave from his partnership at Katten Muchin Rosenman to join a contingent of attorneys organized by the U.S. State Department to spend a year there working on legal reforms.

"We didn't have a budget and we didn't have a staff,'' he said. "We each had to identify the problems in our own sector and do our best to take care of them.''

Among his other projects, Berner proposed changes to Afghanistan's mortgage law, which was based on Ottoman Empire code from 1850. He inspected prisons and worked with then- Ambassador Zalmay Khalilzad to unify the nation's religious and secular law schools.

Afghanistan's constitution forbids any civil law from contradicting Shariah law, but Berner found that law students studying Shariah knew nothing of civil law, and vice versa.

"People would graduate from one school and know all the details of various legal systems, but have no idea if it was unconstitutional or not. The other group had no grounding in the day-to-day living of people, but they would determine what was constitutional,'' Berner said.

During his year in Afghanistan, Berner e-mailed "Dispatches from Kabul" to friends and family, who forwarded his accounts widely. His future boss, Sunshine, became a regular reader after his wife, Christy McElhane, of counsel to New York-based Skadden, Arps, Slate, Meagher & Flom, began receiving the dispatches.

"He showed it around the company and, when I got back from Afghanistan, they were interested in hiring me,'' Berner said.

Berner received an undergraduate degree from the University of Wisconsin in 1976 and graduated from the Columbia Law School in 1979. While a law student, he was administrative editor of the Columbia Journal of Transnational Law. Following law school, he went to work at New York's Dewey Ballantine, then joined Katten Muchin in 1991. Berner took his position at First Capital in 2006.

LEGAL TEAM AND OUTSIDE COUNSEL: Berner oversees a staff of three attorneys whom he rarely sees. One works from home, and the other two are assigned to the Atlanta and Oklahoma City offices.

"I don't see these people very often, but they are self-starters who are willing to make difficult calls and confirm it with me rather than ask me about every little question that pops up,'' Berner said. "We are probably going to triple the size of our department in the next few years. It's built into the budget. We see an upward trajectory in work.''

Primary outside counsel include New York-based Milbank, Tweed, Hadley & McCloy for borrowing and corporate issues. First Capital's move into Asia is being assisted by Hammonds, the large European firm, and by Morrison & Foerster and Beijing-based King & Wood. Bankruptcy work typically goes to smaller, regional firms. The bulk of the remaining outside legal work goes to Buchalter Nemer of Los Angeles, Greenberg Traurig and Buchanan Ingersoll & Rooney of Pittsburgh.

DAILY DUTIES: Although First Capital is a multibillion-dollar business, the executive team consists only of Berner, Kiefer, Sunshine and the chief of human resources. "It's a very comfortable working relationship,'' Berner said.

Berner's responsibilities include employment law, fraud investigations, bankruptcy, supervising litigation, contracts, overseeing transactions and lending a hand when the other three attorneys are inundated.

Berner's father, Howard E. Berner, worked for many years in small pharmaceutical companies that faced the same challenges as First Capital's clientele.

"I grew up with my father telling me about these companies, a lot of which served as stepping stones into America for first- and second-generation immigrants,'' Berner said. "It appealed to my idealism, and here is First Capital that specializes in keeping companies like that alive. They run into trouble, and when they do we can be the lender of last resort."

He points to "a whole string of victories" — companies that needed cash to get back on their feet and with First Capital's help became financially solid enough to qualify for standard bank financing. "There are others who linger in the place where they have to rely on asset-based lending. Sometimes you have to deal with them in bankruptcy.''

PERSONAL: "I feel a need to be aware of what is happening in the world. I tend to agree with Montaigne, who said that there is no such thing as objectivity. The best way to learn about any subject is to read intelligent people who are openly biased on both sides of an issue, and draw your conclusions by examining both sides. I therefore find that reading The New Republic and The Weekly Standard, for instance, gives you a much better idea of an issue than reading, say, the New York Times.