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'Braving Tempestuous Times'
The two-part article, titled “Braving Tempestuous Times ' Hell-or-High-Water Obligations Maintain Their Viability Despite Leasing Scams and a Troubled Economy,” which appeared in the February and March 2010 editions of this newsletter, discussed several recent court decisions that ruled on the enforceability of hell-or-high-water obligations and waiver-of-defenses provisions in leases and accounts receivable financings. Below is further elaboration of issues raised by two of these cases.
The 'Real Defense' of Fraud in the Factum
In the discussion of “What Are 'Hell-or-High-Water' Obligations?” (and in the discussion of Popular Leasing USA, Inc. v. Mortgage Sense, Inc.) in Part One of the article, the references to “fraud in the inducement” (with respect to a lessee's execution of lease forms, without reading or understanding the significance of their impact), should instead have been referred to as “fraud in the factum” as described in Comment 7 to UCC Section 3-305 (i.e., “the defense of 'real' or 'essential' fraud, sometimes called fraud in the essence or fraud in the factum”). The Comment provides that the test of the “real defense” of fraud in the factum with respect to a holder-in-due-course of an instrument (and thus a defense to an Assignee of a lease or accounts receivable obligation under a waiver-of-defenses clause covered by UCC Section 9-403(4)(A)(iii)) is that of “excusable ignorance” of the contents of the document signed on behalf of the Obligor.
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.