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Recent rulings of interest to you and your practice.
Temporary tenants are no longer comprised solely of "mom and pop," new "start-up" businesses and similar tenants that could not afford the rents paid by "in-line" tenants, but rather may be composed of national tenants and sophisticated tenants very familiar with the leasing process.
Lawyers familiar with commercial leasing and lending transactions should be well-versed in the concepts of subordination, nondisturbance, and attornment. It is advantageous for both landlords and tenants to negotiate mutually satisfactory provisions in leases that address such concepts.
There are at least eight revisions that a tenant can make to a landlord's "standard" security deposit clause that can protect its interests as well as the landlord's.
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It is definitely a tenant's market, but tenants need to be aware of the "point of no return" for the landlord. They need to be acutely aware of how their tenancy will affect the value of a property and how to properly leverage their existing or contemplated occupancy.
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BAPCPA has had a profound effect on retail reorganizations, particularly, the restriction on bankruptcy courts' broad discretion to extend debtors' time to assume or reject leases. This shortened time period, a maximum of 210 days, has been alleged to be responsible for the death of retail reorganizations.
Features
Companies that continue to supply to a customer after the customer files for Chapter 11 bankruptcy protection should take note of a recent decision from the Eleventh Circuit that required a supplier to return the money it was paid by a Chapter 11 debtor ' for goods shipped to the debtor post-petition ' because the debtor did not have authority to make the payment in the first place.
Arguments about value lie at the heart of many disputes in Chapter 11 cases. Yet, despite how critical it is to the outcome of these cases, bankruptcy courts often have extreme difficulty determining value. This makes valuation a fertile source of litigation.
Approximately 40% of all e-discovery cases in 2009 involved claims for sanctions against parties that allegedly failed to comply with discovery obligations. Of the sanctions cases, 67% addressed an alleged failure to properly preserve ESI.