The 'SAB': Back to the Future
September 11, 2003
The Special Advisory Bulletin on Contractual Joint Ventures (SAB) is the OIG's latest reiteration in a series of missives that invoke the Federal anti-kickback statute, 42 U.S.C. ' 1320a-7b(b) (AKS). It's all part of an attempt to chill the proliferation of business arrangements between companies that are in the business of supplying medical equipment, pharmacy items, and/or services to patients (generically, 'suppliers') and providers such as hospitals and physicians (generically, 'providers') who are in a position to refer or 'steer' patients to a supplier. On April 23, 2003, the Office of Inspector General (OIG) for the Department of Health and Human Services (DHHS) issued the SAB, which describes various arrangements as 'potentially problematic.' See http://oig.hhs.gov/fraud/docs/alertsandbulletins/042303SABJointVentures. While many suppliers and providers may choose to alter or terminate their arrangements as a pragmatic reaction to the SAB, the conceptual underpinnings of the SAB are suspect themselves.
IN THE MARKETPLACE
September 10, 2003
Highlights of the latest equipment leasing news and cases from around the country.
Ford Credit to Exit Auto Leasing in New York and Rhode Island
September 10, 2003
In the May issue, author Pauline Clark discussed the Rhode Island Supreme Court's decision in <i>Oliveira v. Lombardi,</i> 794 A.2d 453 (R.I. 2002), holding that automobile leasing companies may be held liable under the state's vicarious liability statute for the negligence of drivers operating motor vehicles titled in the leasing companies' name. In a clear response to this and other similar cases, Ford Credit has announced that it plans to exit automobile leasing in Rhode Island in October 2003 and in New York after July 9, 2003.
A Primer for Secured Lessors on the Use of Bankruptcy Code Section 365(d)(10)
September 10, 2003
A recent decision of the U.S. Bankruptcy Court for the District of Connecticut, <i>In re Circuit-Wise, Inc.,</i> 277 B.R. 460 (Bankr. D. Conn.), attempts to clarify the rights of secured equipment lessors under Section 365(d)(10) of the Bankruptcy Code and suggests two mechanisms for ensuring that those rights are quickly and fairly addressed. However, the Bankruptcy Court may have unfairly denied the lessor, Wells Fargo Equipment Finance, Inc. ('Wells Fargo'), the prompt relief it deserved. Even if the Bankruptcy Court properly deferred whatever relief Wells Fargo was entitled to, the court's suggested methods for ultimately providing that relief were at least, in part, impractical.
Kmart Bankruptcy: Lessons for Lessors and Secured Parties
September 10, 2003
One of the most fundamental and critical principles that enables the equipment leasing industry to function on a day-to-day basis is commercial certainty ' certainty in expectations regarding financing; certainty in the meaning of documentation; and reliance on the certainty of the application of legal principles that will be brought to bear in the event of a lease default or bankruptcy.
Understanding the Jobs and Growth Tax Relief Reconciliation Act of 2003
September 10, 2003
The Jobs and Growth Tax Relief Reconciliation Act of 2003 (the '2003 Tax Act' or, simply, the 'Act'), signed by President Bush into law on May 28, 2003, provides strong inducements for the purchase of capital equipment. Together with record-low interest rates, the Act's 'tax subsidies' for the purchase of equipment should reduce the costs of equipment to equipment lessors and make them more competitive with asset-based lenders.
CASE BRIEFS
September 09, 2003
Highlights of the latest insurance cases from across the country.
Insuring for Punitive Damages Doesn't Violate Public Policy
September 09, 2003
In an opinion that could be one of Texas' most important insurance coverage rulings in years and spark even more debate about damage awards, the 2nd Court of Appeals ruled that insuring for punitive damages does not violate public policy.
Surplus Lines Insurance
September 07, 2003
<i>Part 1 of a 2-part series.</i> Surplus lines business is booming. Last year, California witnessed an astounding 104.5% increase in surplus lines premium totals from 2001, according to the Surplus Lines Association of California. Other states also saw the number of surplus lines policies issued in their state soar. Yet many corporate representatives and coverage attorneys are unfamiliar with this rapidly growing niche within the insurance industry. Whether you are placing insurance for your employer or serving as counsel for an insurance-related client, it is imperative that you possess a good understanding of the role surplus lines insurers play in the insurance industry and how the states regulate the surplus lines market.
Avoiding the Pitfalls of Stipulated Settlements
September 07, 2003
An officer of a corporation is named as a defendant in a shareholder derivative suit. After reading the complaint, which includes allegations that the officer committed a breach of certain fiduciary duties owed to the corporation, the officer promptly notifies his directors and officers' liability insurer of the lawsuit. Because the applicable policy contains exclusions that may potentially exclude some, if not all, of the claims, the insurer agrees to defend the officer subject to a full and complete reservation of rights.
