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Keep Your Lease A Lease: Seventh Circuit Finds the Severability of a Contract Defeats Re-characterization
In the December 2005 issue of this publication, this author reviewed the Seventh Circuit's decision in United Air Lines, Inc. v. HSBC Bank USA, N.A., 416 F.3d 609 (7th Cir. 2005) ('United I'). In that decision, the Seventh Circuit was asked to determine whether a transaction involving land at the San Francisco airport that was denominated as a lease in the agreement would be treated as a lease for bankruptcy purposes. The Seventh Circuit held that it would look at the substance of the transaction and beyond the form and labels imposed by the parties' documentation.
Recently, the Seventh Circuit issued another opinion regarding the potential re-characterization of a lease in the United Airlines case. United Airlines, Inc. v. HSBC Bank USA, 453 F.3d 463 (7th Cir. 2006) ('United II'). Like United I, this case involves a ground lease of land at an airport and a financing transaction to build facilities for United's use, but this time in Denver. The results of United II are opposite to United I. What is the court's major distinction? Unlike United I, the ground lease and the financing transaction in United II were part of one inseverable document instead of two separate contracts. This holding presents a potentially, surprisingly simple safeguard to lessors/financing providers in the documentation of their agreements.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.