LJN Newsletters

Part Two of a Two-Part Series. Part One of this article discussed lease forms and standard clauses; federal appropriation of funds; rental payments; and lease language that provides for the award of attorneys' fees to the 'prevailing party' in a law-suit. The conclusion addresses alterations and dispute resolution.

Once the simplest of lease provisions, common area maintenance ('CAM') expense provisions have grown quite complex. In the past, a CAM provision might simply provide: The tenant shall pay its pro rata share of the expenses of maintaining the common areas of the property. Maybe there was another sentence or two ' even a paragraph ' describing the types of expenses and the method of estimating, paying, and reconciling that share of expenses. Then some wunderkind invented the personal computer and the 60-page lease. Now landlords have multi-page, 'throw in the kitchen sink' CAM provisions and tenants attempt to gut every word of them.

Part One of a Two-Part Series. For more than a decade, law enforcement agencies across the country have struggled with allegations of racial profiling. Many of the country's large law enforcement agencies have been sued for alleged racial profiling. These agencies include the California Highway Patrol, the Ohio Highway patrol and the Illinois State Police. The results of these lawsuits have been mixed. Some agencies, such as the Illinois State Police, prevailed, and many other agencies reached settlements. These suits were extremely expensive to litigate, and the settlements were, at times, just as expensive. Regardless of the outcome of the litigation, however, the damage caused by these allegations was massive. The citizens' trust and confidence instilled in these departments, if it existed at all in recent times, was breached. The damage occurred, in large part, because perception is often as important as ' or more important than ' reality. Although the phenomenon of racial profiling undoubtedly exists, all agencies and their personnel become tainted, whether fairly or not, with the stigma resulting from the actions of a few.

Recent cases in e-commerce law and in the e-commerce industry.

Today, the volume of such laws is staggering. As perhaps fits the regional, and often local, level of business in the United States ' and how business is regulated here ' many states have stepped into the breach and enacted legislation requiring data security, as well as notice to consumers, when security breaches occur. And although there is no federal law that generally requires information security, recent Federal Trade Commission actions indicate that the FTC is, for the first time, imposing a general duty to establish information security under the Federal Trade Commission Act.
Compliance with these laws isn't only a legal reality, but a business one, as the frequent and well-publicized data-security incidents of recent years demonstrate. New notice laws require companies to advise customers of the high-profile data-security incidents that frequently make headlines. Now, companies must deal with increasingly complex requirements that are not consistent from state to state. The price of failure can be high ' including significant penalties, as well as unfavorable press coverage.

The Federal Trade Commission (FTC) last month joined the call by the Organisation for Economic Cooperation and Development (OECD) for government and industry worldwide to battle spam.

We're there, and we know it: The union of the Internet and commerce has led to increases in productivity, convenience and access for consumers everywhere. At the same time, it has spawned volumes of acute privacy concern. It's not unusual to hear of businesses inadvertently publicizing consumers' personal data ' or, worse, hackers obtaining personal financial information. It seems to happen all too often at credit-card companies, banks and the local supermarket.
Of course, concerns over these privacy issues have reached the sector of the legal trade that advises and defends the banking industry, and with a vengeance, as evidenced by the various privacy related provisions incorporated in the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). In particular, the BAPCPA incorporated the Leahy-Hatch Amendment, also known as The Privacy Policy Enforcement in Bankruptcy Act of 2001 (PPEBA), which I had the honor of drafting. In particular, the PPEBA, in order to address certain privacy concerns, amended Bankruptcy Code '363(b)(1) and added pre-conditions to the sale or use of consumer data; added a new '332, creating the 'privacy ombudsman'; and defined 'personally identifiable data' in '101(41A). This article will review the development of these amendments, and analyze their potential impact for practitioners.

Do e-commerce clients really understand when they cross the imaginary boundary where the law stops and the ambiguity begins? In other words, do lawyer and client realize what each knows ' or thinks he or she knows ' about Internet law, on the one hand, and the realities of online business, on the other hand? Do clients realize how much lawyers don't know about e-commerce law and business, and how much law hasn't yet been developed?