Commercial Leases As an Asset of the Landlord and Tenant
May 26, 2005
Tenants and landlords should view the lease as an asset of their business. A lease cannot be entered taking into account only those conditions existing as of the date of execution. The terms of the lease will bind the parties for a considerable period, and it is important to draft the lease carefully up front in order to accommodate current and future circumstances. This article addresses the lease as an asset from the tenant's perspective, then from the landlord's perspective, and finally suggests how to approach negotiating potentially conflicting ideas about how to preserve this "joint" asset.
Tenant's Estoppel Letter Does Not Trump the Lease
May 26, 2005
An "estoppel certificate" is a written statement by a party having an interest in property that defines and describes that interest so that other parties contemplating taking an interest in the same property will be informed about the nature and extent of that interest. Typically, the party signing the certificate is not a party to the transaction by which the third party is acquiring its interest. But the certificate is worded in such a way so that the party signing it is made aware of the reliance of the third party, and thus the signing party would be "estopped" from asserting matters different from those appearing in the certificate as against the third party upon completion of the transaction.
A Roundtable Discussion on Leading Compliance Issues in the U.S. and EU
May 26, 2005
Throughout the world, Sarbanes-Oxley (SOX) legislation might well have had the biggest impact in corporate governance since the introduction of limited liability. To that end, jurisdictions outside the U.S. have not been idle. A recent Eversheds survey found more than 100 studies on the topic in 29 European countries within and outside the EU. Clearly, proper compliance to corporate governance guidelines is top of the list to in-house counsel across the EU, as well as the U.S. This roundtable sought to road-test some of these issues and look to some of the U.S.'s best governed corporations to see if there is a map for the journey ahead.
Use Escape Clauses For Tech Contracts
May 26, 2005
Lawyers and businesspeople are like most people who read things they must or are interested in: They read the exciting parts first ' and that includes contracts. Everyone is interested in the money, and what they will get from the deal. <br>But what about what might be considered the marginalia, the add-ons ' or what some people might think of as those categories ' the escape clauses of the contract? Well, you can bet that no one reads the term and termination sections first. These "quiet" clauses are usually hidden, well in the back of a contract, with the boilerplate and signatures.
Net News
May 25, 2005
Recent developments of note in the Internet industry. This month:<br>MPAA Targets TV Download Sites <br>Yahoo Sued over Child Porn Site <br>Star Wars' Sith Victim of Internet Sieve<br>Microsoft, Massachusetts Target Spammers in Lawsuit <br>2004 Internet Ad Rev Surpasses Dot-com Boom Levels
Is SOX Worth It?
May 25, 2005
With the imminent phase-in of the SEC rules implementing Section 404 of the Sarbanes-Oxley Act of 2002 (SOX), which requires public companies to issue a management report and submit auditor attestation regarding the adequacy of the company's internal controls over financial reporting, the public debate over the cost-benefit analysis of SOX has intensified. The Sarbanes-Oxley Act and its implementing rules have provoked much controversy in their attempt to strike the right balance between protecting investors and unnecessarily cannibalizing scarce corporate resources owned by those same investors. While the SEC has historically offered concessions to smaller public companies due to the relatively higher regulatory burdens placed on them, it remains to be seen whether the SEC will continue to be sensitive to the burdens on smaller public companies in the implementation of SOX.
Enforcement Against Market-Driven Misconduct
May 24, 2005
Government plays a critical role in the design of some free markets and in the operation of many. The recent energy debacle in California resulted in part from defective governmental design of California's markets for wholesale and retail electricity. Even where markets are shaped largely by private-sector activity, government often has a critical role in influencing the incentives that guide conduct in those markets. In particular, law enforcement agencies, especially regulatory agencies, have a critical responsibility for the proper functioning of competitive markets within their jurisdiction -- the responsibility to elaborate and enforce applicable laws so as to constrain market forces from driving participants into socially undesirable conduct.
The Corporate Attorney-Client Privilege Survives
May 24, 2005
The dangers to the proper functioning of the corporate attorney-client privilege in the wake of recent federal and state law enforcement activities have been well-documented and widely discussed. The year is only half over and already two reports on the issue have been produced and a third major inquiry is underway. A survey by the Association of Corporation Counsel disclosed that 30% of the respondents' corporate clients had "personally experienced an erosion in protections offered by privilege/work product." A similar survey of outside counsel conducted by the National Association of Criminal Defense Lawyers reported 47% of corporate clients had experienced such an erosion. Both organizations have taken up the difficult task of 'debunking the myth' that assertion of the privilege is inappropriate or a sign of guilt.
