Subrogation: Insured or Not Insured
August 18, 2003
Real estate lawyers have recently been reminded of the importance of carefully crafting 'waiver of subrogation' and 'release of liability' provisions in leases. For instance, in a recent New York case, <i>The GAP, Inc. v. Red Apple Companies, Inc.<i>, 282 A.D.2d 119 (N.Y. App. Div. 2001), such express clauses saved the landlord from liability to its tenant's insurance company; unfortunately, the provisions did not relieve the landlord from responsibility for the cost of its tenant's insurance deductible — a million dollar mistake.
How Commercial Landlords Can Position Themselves to Deal With Current Marketplace Conditions
August 18, 2003
The uncertainty of the duration of the downturn in the commercial leasing market, the vast amount of available first-and-second generation space and the increasing number of tenant bankruptcies have resulted in a situation where landlords must position themselves to endure potentially devastating economic times. Cutting rental rates and providing previously unheard of tenant concessions such as short-term leases and long periods of 'free rent' may seem like the only alternatives, but they are not. Landlords can enforce existing provisions in their leases and incorporate additional provisions into their lease forms that will improve their position in the marketplace.
Criminal Antitrust Violations: Current Limits
August 18, 2003
The two federal statutes that create criminal liability for antitrust violations are arguably the broadest and most poorly defined of all federal criminal statutes, even recognizing the tortured draftsmanship of the RICO statute and the securities laws' criminal provisions.
Furthering Insolvency?
August 15, 2003
What was Enron's Board thinking? Where were the Tyco directors while Dennis went shopping? Had MCI's directors been invited to Scott's new Florida mansion? This stuff makes the headlines, but all across the country, decisions are made by boards of directors that don't come close to this scale and will never see the light of day, much less a courtroom. However, these decisions are no less questionable and susceptible to attack, leaving a director in litigation for years. This is particularly true should the company end up in bankruptcy with creditors having been harmed.
Exceptions to Dischargeability
August 15, 2003
For many years, financial or securities executives knew that if they had not committed a fraud or had not been fined by the Securities and Exchange Commission (SEC), they could get a discharge in bankruptcy by filing for Chapter 7 or 11. Negligently committing a securities violation would not preclude a bankruptcy discharge for the civil liability flowing therefrom.
Insurance Assurance
August 15, 2003
The insurance market is undergoing turmoil as a result of recent trends, including terrorism, corporate scandals and skyrocketing healthcare costs. Premiums are soaring, causing firms to cut back on coverage or to cut into their profits ' choices that could have a profoundly adverse impact on the firm's future success.
Measurable Results Through Profit Centers
August 15, 2003
Profitability pressures are leading firms of all sizes to create and implement strategic plans. These strategic plans often call for expansion and growth of practice areas, growth through lateral hires, or creation of entirely new practice groups. Concurrently, partner compensation methodologies are being revised to hold individual attorneys accountable for their own results.
FCC: Phone Companies Have Limited Protection
August 14, 2003
When companies like AT&T, MCI, WorldCom and Sprint provide long-distance services, they almost always use the telephone networks of local exchange carriers, or 'LECs' (<i>eg</i>, Verizon, BellSouth, Qwest, and SBC) to originate and terminate those calls. This use of local networks is a service generally referred to as exchange access, which is subject to regulation by the Federal Communications Commission (FCC).
NextWave Ruling Spells Victory and Defeat
August 14, 2003
When the government is a creditor, it cannot exercise self-help remedies that may be consistent with regulatory policies but are in violation of the specific provisions of the Bankruptcy Code, 11 U.S.C. '' 101 <i>et seq</i>. In <i>Federal Communications Comm'n v. NextWave Personal Communications, Inc.</i>, No. 01-653, 2003 U.S. LEXIS 1059, at *7-8, 71 U.S.L.W. 4085 (Jan. 27, 2003), the Supreme Court held that Bankruptcy Code Section 525, which prohibits a governmental unit from revoking a license to a debtor in bankruptcy, prevents the Federal Communications Commission (FCC) from revoking spectrum licenses that were bought on credit, but not paid for when due by NextWave Personal Communications, Inc.
