Commercial Law

The Work Letter (sometimes referred to as a 'Construction Agreement' or 'Work Agreement') is the portion of a lease, usually an exhibit, setting forth the provisions relating to the build-out of the tenant improvements to be made to the space leased. Often dealing with very large expenditures, the Work Letter is an extremely important part of the Lease. However, perhaps because of the varying types of build-outs, with differing parties responsible, it is a document that often breeds considerable confusion. This two-part article discusses the three common types of office space build-out arrangements to which landlords and tenants might agree, how they differ, and how those differences are to be addressed in drafting the Work Letter.

Sometimes the hardest part of a leasing relationship is getting started ' establishing if there will be contingencies, when they will expire, when the space will be delivered, and when the rent will commence. Often the transition is smooth, and everything falls into place. In other situations, however, coordinating the requirements, obligations, and schedules of both landlord and tenant feels like an in-air refueling of a jetfighter.

While all retail leases pose an array of issues to the landlords and tenants involved, retail leases relating to restaurants pose certain other issues that must be addressed in order to avoid surprise costs, liabilities, and delays. This article addresses several of those issues that relate to restaurant leases in a shopping center setting (either in a food court or as an outparcel location), including trash removal, pest and rodent control, parking, and exclusive uses.

Employers of all sizes use third-party consumer reporting agencies to conduct background investigations such as credit, criminal, education and employment background checks. Such investigations are labor-intensive, costly and require specialized knowledge (especially if the employer has a multi-state presence). Therefore, a third-party vendor is the natural choice for outsourcing such a task. However, employers should beware that outsourcing the background check process does not automatically insulate the employer from liability when it relies on the information in a report. Using such third party reports places the employer squarely within the myriad of requirements under the Fair Credit Reporting Act ('FCRA'). 15 U.S.C. ' 1681.

This article discusses the development of the Fobian rule and other courts' treatment of it. The article also summarizes the Supreme Court's reasoning in abrogating the rule in Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co. (In re Pacific Gas & Electric Co.), 549 U.S. ____, 127 S. Ct. 1199 (2007).

Manufacturers and distributors use traditional stores and Internet sites to sell goods and services. But too often, when identical items are offered simultaneously through these channels, Internet price advertisements divert so much business from the traditional stores that those traditional outlets stop offering the items. MAP ('minimum advertised price') agreements, which prevent items from being advertised below some specified amount (the minimum advertised price), are often employed to maintain access to traditional and Internet sales channels.

The Second Circuit recently ruled that, in the absence of specific Congressional legislation, owners of famous foreign trademarks must show use within the United States to avail themselves of the protections offered by American federal law. The Court of Appeals also certified questions to the district court as to whether New York common law protects a famous foreign trademark that only has been used in a foreign country. The case is an instructive overview of the law of trademark abandonment and the famous marks doctrine.

Continuing the recent trend of court decisions expanding jurisdiction over declaratory judgment challenges to patents, the Court of Appeals for the Federal Circuit (the 'Federal Circuit' or the 'court') opened the door to increased challenges to drug patents in Teva Pharms. USA Inc. v. Novartis Pharms. Corp., 482 F.3d 1330 (Fed. Cir. 2007). The Federal Circuit ruled that a generic drug company could, under the appropriate circumstances, pre-emptively seek a declaratory judgment that certain drug patents listed in the FDA's Orange Book are invalid or not infringed. Generic drug companies thus can have a court resolve patent infringement issues before undertaking the expense of launching a generic drug under the threat of patent litigation and any resulting injunction or treble damages for willful infringement. The Teva decision is expected to increase declaratory judgment challenges by generic drug companies and help speed generic drugs to market when those challenges are successful.