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Shortfall Fees in Factoring Pact
As financial circumstances become more difficult, it is expected that many businesses will turn to funding solutions such as factoring agreements to weather the storm. These agreements typically involve the advance of money from a financial institution to a business against proceeds from the business's outstanding accounts receivables.
In a recent decision, Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York applied New Jersey law in ruling that a shortfall fee charged by a factoring company was enforceable, pursuant to an alternative fee structure under a certain factoring agreement.
In doing so, the court in Dessert Beauty, Inc. v. Platinum Funding Corp. 06 Civ. 2279 (SAS), Opinion and Order dated Oct. 1, 2007, rejected arguments that the fee in question constituted either an unenforceable penalty or an unreasonable liquidated damages clause, and in effect, reinforced the rights of the parties to freely chart the method of performance in the event of a certain potential contingency, which may not rise to the level of a contractual breach. [Note, at least two commentators have termed similar election of contractual performances 'embedded options.' See Robert E. Scott and George G. Triantis, 'EMBEDDED OPTIONS AND THE CASE AGAINST COMPENSATION IN CONTRACT LAW,' 104 Colum. L. Rev. 1428 (2004), for a much more in-depth analysis of contractual damages and embedded options.]
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.
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.
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.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?