Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Search


Development
Recent rulings of importance to you and your clients.
Selling 'Free and Clear': Will It Continue?
Section 363(f) of the Bankruptcy Code provides an extraordinary tool to trustees and debtors in possession -- the ability to sell property "free and clear." This unique power, unavailable to a seller outside bankruptcy, not only facilitates the tasks of liquidation or reorganization, but it may even be the critical incentive for entering bankruptcy in the first place. It has now become the principal focus of many Chapter 11 cases.
The Bankruptcy Hotline
Recent rulings of importance to your practice.
When to Use a 'Stalking Horse' Agreement
A debtor has a fiduciary duty to maximize the value of the assets of its estate. When selling assets of a bankruptcy estate, the process usually begins with an extensive marketing process. As a result of extensive marketing, a debtor can find itself actively negotiating with numerous potential purchasers. While most marketing periods end with a court-approved auction, it has become commonplace for the debtor to enter into the auction process with a "stalking horse" agreement in place.
Clearing the Confusion
As explained in last month's article, there has been a great deal of confusion in the courts regarding Section 365(b)(2)(D). In a detailed opinion on appeal, the Ninth Circuit diverged from two lower courts, holding that the most natural reading of subsection (b)(2)(d) requires a finding that the word "penalty" modifies both "rate" and "provision." This ruling, as discussed in last month's article, caused further confusion in the courts as to interpretation.
Coping With COPPA
While the Children's Online Privacy Protection Act of 1998 (COPPA) was designed to rein in commercial Web sites that target children as buyers of goods, it has caused legal difficulties for those who provide services such as camps, schools, after-school activities and sport clubs. The providers of such services must regularly wrestle with the ways they collect prospects from their sites.
Pop-Up Advertising Enjoined in Trademark Suit
A Manhattan federal judge has enjoined an Internet advertiser from delivering "pop-up" ads to visitors of a retail Web site. Contact lens retailer 1-800 Contacts Inc. requested the injunction pursuant to its suit against Internet "adware" purveyor WhenU.com for trademark infringement and unfair business practices.
Ninth Circuit Refreshes Web Trademark Law
The Playboy bunny hopped out of the nation's largest appellate court recently with a ruling that could put a wrinkle in one Internet advertising business model. The Ninth Circuit U.S. Court of Appeals ' with the reservations of at least one judge on the unanimous panel ' ruled that search engines are barred from displaying advertising related to trademarked search terms. In other words, you can't point customers in the direction of one company if they're searching for another.
RIAA Resumes Legal Offensive
On Jan. 21, the Recording Industry Association of America (RIAA) announced the filing of a new round of lawsuits against 532 peer-to-peer (P2P) users in its ongoing campaign to deter illegal online trading of copyrighted music. While this is not the first round of such lawsuits directed at P2P users offering large numbers of unauthorized music files for others to download, this round is novel because the cases were filed against 532 "John Does" ' unidentified persons whom the RIAA can identify at this point only by their IP addresses. The balance of this article will briefly discuss the potential hurdles that the RIAA will face under this new strategy, and what it likely means for the long term success or failure of the industry's effort to deter unauthorized online downloading and recapture lost customers.
Net News
Recent developments in Internet law and in the Internet industry.

MOST POPULAR STORIES

  • The 'Sophisticated Insured' Defense
    A majority of courts consider the <i>contra proferentem</i> doctrine to be a pillar of insurance law. The doctrine requires ambiguous terms in an insurance policy to be construed against the insurer and in favor of coverage for the insured. A prominent rationale behind the doctrine is that insurance policies are usually standard-form contracts drafted entirely by insurers.
    Read More ›
  • Abandoned and Unused Cables: A Hidden Liability Under the 2002 National Electric Code
    In an effort to minimize the release of toxic gasses from cables in the event of fire, the 2002 version of the National Electric Code ("NEC"), promulgated by the National Fire Protection Association, sets forth new guidelines requiring that abandoned cables must be removed from buildings unless they are located in metal raceways or tagged "For Future Use." While the NEC is not, in itself, binding law, most jurisdictions in the United States adopt the NEC by reference in their state or local building and fire codes. Thus, noncompliance with the recent NEC guidelines will likely mean that a building is in violation of a building or fire code. If so, the building owner may also be in breach of agreements with tenants and lenders and may be jeopardizing its fire insurance coverage. Even in jurisdictions where the 2002 NEC has not been adopted, it may be argued that the guidelines represent the standard of reasonable care and could result in tort liability for the landlord if toxic gasses from abandoned cables are emitted in a fire. With these potential liabilities in mind, this article discusses: 1) how to address the abandoned wires and cables currently located within the risers, ceilings and other areas of properties, and 2) additional considerations in the placement and removal of telecommunications cables going forward.
    Read More ›