NorVergence Maelstrom Rolls On: Floating Forum Clause Invalidated As Unreasonable
April 27, 2007
A recent decision from the Ohio Supreme Court may have an impact on the marketability of commercial lease agreements. In <i>Preferred Capital, Inc. v. Power Engineering Group, Inc.</i>, 112 Ohio St. 3d 429, 860 N.E.2d 741 (2007), the court held that an open-ended forum selection clause, often referred to as a 'floating forum clause,' was not enforceable. The <i>Preferred Capital</i> court found that a floating forum clause in a lease agreement, which provided that any lawsuit arising from the lease would be venued in the state of the lessor's <i>or its assignee's</i> principal place of business, was unreasonable and contrary to public policy. While one might conclude that the subject forum clause is innocuous, the court took issue with the fact that the designated forum could be transferred to another jurisdiction if the lease agreement were assigned. In other words, if the lease were assigned to an assignee with a principal place of business that differed from that of the lessor, the appropriate forum would change. Another significant consideration for the court was the disparity of information between the parties. At the time the lease agreements were executed, the lessor was aware that the leases would be assigned to a company that was based in a foreign jurisdiction. The court's refusal to enforce the forum clause was based, in large part, on the lessor's failure to disclose that information at the time the parties entered into the lease.
The Subprime Lending Crisis: What Does It Mean to the Leasing Industry?
April 27, 2007
The news is full of stories about the substantial, long-term effects of the subprime mortgage crisis on the mortgage-lending industry. But little has been written about how it will affect other market segments like the leasing industry. There will certainly be spillover, although it won't be as dramatic. This article explores what the leasing industry should be looking for, and doing, in response to this crisis.
In the Marketplace
March 27, 2007
Highlights of the latest equipment leasing news from around the country.
Bankruptcy Court Decides When Trade Vendor Priority Claims Get Paid
March 27, 2007
The U.S. Bankruptcy Court for the Eastern District of Pennsylvania recently issued one of the first decisions in the Third U.S. Circuit Court of Appeals to interpret '503(b)(9), an important new Bankruptcy Code provision passed under the Bankruptcy Abuse Prevention and Consumer Protection Act: <i>In re Bookbinders' Restaurant Inc.</i> '503(b)(9) is certain to impact the relationship between a debtor seeking to reorganize and the trade vendors that deal with it.
Information Security Obligations
March 27, 2007
This article outlines the requirements for providing notification of a security breach under state security breach notification laws by any company and the factors that a public company needs to take into account regarding whether to disclose a security breach under federal securities law.
Illegal Use of Equipment
March 27, 2007
A Florida intermediate-level appellate court has held that a lessee is not relieved of its payment obligations when it discovers that it cannot lawfully utilize the leased equipment in the manner it intended. <i>De Lage Landen Financial Services, Inc. v Cricket's Termite Control, Inc.</i> While the writer is aware of similar results reached in other unreported Florida actions, this decision, the first reported decision in Florida, not only will provide assistance in dealing with similar scenarios but also exhibits the strength of standard lease clauses.
Vicarious Liability of Aircraft Owners and Lessors: A Chink in the Armor?
March 27, 2007
In 2005, the Superior Court of Rhode Island held that '44112 of Title 49 of the U.S. Code did not protect the owner and lessor of an aircraft from vicarious liability for negligence of a lessee of the aircraft. <i>Coleman v. Windham Aviation Inc.</i> In light of the decision in Windham (and others discussed below), owners, lessors, of aircraft must be aware of the possibility that a state court may very well impose vicarious liability.
In the Marketplace
February 27, 2007
Highlights of the latest equipment leasing news from around the country.
What Leasing Counsel Need to Know About Arbitration
February 27, 2007
Part One of this series analyzed the consideration that leasing counsel should give to discovery, locale selection, confidentiality, and expediting the arbitration process. This month's installment discusses issues relating to arbitrator-selection.
