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'Floating' Forum-Selection Clauses: The M/S Bremen Afloat in the Wake of Norvergence
On June 30, 2004 an Involuntary Petition under Chapter 11 of the Bankruptcy Code was filed against NorVergence, Inc., the New Jersey telecommunications company. While this filing represented the likely end of a telecommunications company which, at its zenith, employed 1500 people, with more than 11,000 equipment leases in effect worth some $200 million, it also marked the beginning of litigation arising out of those leases now being waged in various state and federal courts across the country involving thousands of lessees, scores of finance companies and dozens of governmental agencies.
While this litigation is of obvious importance to the finance companies and the lessees involved, these actions could also have far-reaching consequences on the entire leasing industry and those businesses that rely on leasing as a cost-effective and tax-friendly means of acquiring equipment. Of particular consequence is the enforceability of the open-ended, or “floating,” forum-selection clauses that are contained in the Equipment Rental Agreements at issue in this litigation. The typical forum-selection clause at issue in these cases provides: “This agreement shall be governed by, construed and enforced in accordance with the laws of the State in which Rentor's [referring to NorVergence] principal offices are located or, if this Lease is assigned by Rentor, the State in which the assignee's principal offices are located, without regard to such State's choice of law considerations and all legal actions relating to this Lease shall be venued exclusively in a state or federal court located within that State, such court to be chosen at Rentor or Rentor's assignee's sole option.”
Various lessees have attacked these clauses on the grounds that the absence of an identifiable forum at the time of execution of the lease renders these clauses unconscionable and unenforceable. While the lessees, and indeed certain governmental bodies, are attempting to characterize these leases as consumer leases, in an effort to advance their cause, it is clear that not only are the leases involved in these cases Article 2A finance leases between commercial entities, but also that the forum-selection clauses at issue represent the next logical step in furthering the negotiability of Article 2A finance leases and are entirely consistent with the modern view of these clauses.
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 Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.