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An Exculpatory Clause Is Not a 'Get Out of Jail Free' Card
Until recently, it appeared that exculpatory clauses could exonerate a party from liability under all circumstances. According to case precedent, in a landord/tenant context, it seemed as though a landlord need only cite economic self-interest as the basis for its non-performance under the lease agreement and enforce the exculpatory clause against its tenant, thereby limiting the tenant's remedies to specific performance, injunctive relief, and/or arbitration.
The purpose of an exculpatory clause is to limit the landlord's liability for monetary damages in the event of the landlord's non-performance under the lease agreement. Essentially, the exculpatory clause prevents the tenant from claiming monetary damages for lost income, loss of profits, and/or loss of business. While it is common business practice in commercial leasing to use an exculpatory clause, 'it is well settled that a commercial lease represents a 'valuable property interest' for which equitable protection is available.' (Banc of America Securities LLC v. Solow Building Company II, L.L.C. No. 9931 slip op. 09545 (N.Y.App. Div. Dec. 4, 2007) ('Solow')). Accordingly, the tenant's property rights can be severely handicapped if the landlord's conduct remains unrestricted.
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.