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Recharacterization Risks: Beware!
This is the first of a two-part article
To the unwary, Revised Article 9 of the Uniform Commercial Code may pose significant risks. The Article is intended to cover all transactions, regardless of form, that in economic substance create a security interest. Using this broad policy mandate, courts have frequently disregarded many different transaction forms that, on their face, were documented to appear to be outside the scope of Revised Article 9. When this occurs the party that is deemed a secured lender in the recharacterized transaction will face losing substantial rights ' unless that party complied with Article 9's perfection rules, which typically require the filing of a financing statement.
This article (Parts one and two) discusses two separate and distinct recharacterization risks inherent in certain commonly structured tripartite lease transactions. This type of tripartite lease transaction consists of two elements and three parties: the first element involves the transfer of equipment that is transferred from a supplier (the first party) to a finance lessor (the second party) and the second element consists of the lease of such equipment from the finance lessor to the lessee (the third party), with a supplier support guarantee. (For purposes of this article, a supplier support guarantee means a written agreement in which the supplier guarantees the finance lessor either the credit of the lessee or provides residual support for the equipment at the end of the lease term.)
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?