Commercial Law

Secured creditors and debtor-in-possession (DIP) lenders that rely on standard carve-out provisions to limit the impact of bankruptcy professional fees on their collateral would be well-advised to take notice of a U.S. Bankruptcy Court decision from earlier this year.

The reasonable and typical middle ground in the struggle between the parties regarding the scope of the "exclusive" is to protect only a tenant's "core" or "primary" business. Using such an approach, if properly drafted, will allow the tenant to avoid the two-coffee-shop situation, but will still permit the landlord to lease to multiple tenants with overlapping but not fundamentally competing uses.

In the aftermath of the financial crisis, government regulatory agencies, such as the SEC, have aggressively pursued civil enforcement actions to combat financial fraud. However, their efforts to extend their ability to seek monetary penalties and fines outside of relevant limitations periods have been recently rebuffed by the courts.

Before considering the competing, less restrictive, interpretation of Rule 17(c), we briefly pause to explain how we got here. The restrictive interpretation of Rule 17(c) has its genesis in two Supreme Court decisions.

The U.S. Court of Appeals for the Fifth Circuit recently held that a Creditor Exclusion provision in D&O insurance policies may result in significant limitations on the coverage provided to the D&Os when the underlying dispute is with a creditor acting in its creditor capacity.

Part One of a Two-Part Article
Landlord harassment of tenants is a common problem, not only in the housing arena, but also in the commercial leasing sector. Certainly, landlords often have good reasons to be angry with their tenants. However, a landlord that resorts to bullying tactics does so at its own risk.

There is a new trend emerging in FCRA litigation involving Chapter 13 bankruptcy, under which debtors propose a repayment plan to make installment payments to creditors over three to five years. Increasingly, plaintiffs are filing suit based on certain credit-reporting actions taken (or not taken) during a pending Chapter 13 bankruptcy case, after plan confirmation but prior to the entry of the discharge — when a debtor has met all requirements set by the court.

Key Considerations When Negotiating Personal Guarantees to Commercial Real Estate Leases
In today's commercial real estate market, uncertainty is about the only real thing that is certain. In this period of flux, where landlords no longer enjoy the same position of strength and leverage they once had over prospective tenants, it is critical to try and negotiate independent guarantees that best suit each particular deal and (hopefully) hedge against the downside of a potential tenant default and resulting litigation.