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On April 27, 2005, the U.S. Supreme Court, in a 7-to-2 decision, handed supporters of federal pre-emption a narrow victory in <i>Bates v. Dow Agrosciences LLC</i>, __U.S.__, 125 S.Ct. 1788, __L.Ed.2d__ (2005). In <i>Bates</i>, the majority's decision endorsed the principal that state law fraud and failure-to-warn claims may be pre-empted in appropriate circumstances under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA" or "Act"), 7 U.S.C. §136 <i>et seq</i>. The <i>Bates</i> majority held that where such state law claims impose requirements on an insecticide manufacturer that are "in addition to or different from" labeling or packaging requirements under FIFRA, the claims will be barred by FIFRA's pre-emption provision, 7 U.S.C. §136v(b).
Highlights of the latest equipment leasing news from around the country.
Financing deals have become increasingly complicated as parties attempt to raise capital and take advantage of accounting and tax incentives. These transactions often face scrutiny when one party files for bankruptcy. During a Chapter 11 reorganization, a debtor must use all tools at its disposal to best restructure its obligations. In contrast, a creditor must work to ensure it receives the best possible return. The term "lease" is not defined in the Bankruptcy Code. Due to this lack of a clear definition, creditors and debtors will often attempt to recharacterize agreements between the parties. In this context, a secured creditor or debtor may argue that a "lease" is actually a disguised secured financing. In the converse, a party could also argue a secured financing is actually a "true lease." This is due to the Bankruptcy Code's different treatment of secured debt and leases. Depending on the factual scenario, this differing treatment could significantly change the parties' obligations.
Chapter 4 of Revised Article 9, titled "Rights of Third Parties," deals with several issues affecting the assignment of accounts, leases, and other contract rights. See, in particular, Sections 9-403 to 9-409. These sections replace former Sections 9-206 and 9-318 and part of Section 2A-303. This article summarizes some of the key provisions of Chapter 4 of Revised Article 9, compares these provisions to former Article 9, and describes a few recent cases under this Chapter. Note that different rules apply in a consumer transaction or if the account debtor is an individual who incurred the obligation primarily for personal, family or household purposes; this article does not address these issues. In addition, this article does not address the assignment of a health care insurance receivable.
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Highlights of the latest commercial cases from around the country.
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There is no one-size-fits-all solution for business resumption following a disaster. However, the American Society of Safety Engi-neers ("ASSE") offers this disaster safety checklist to assist businesses before, during and after a disaster, such as Hurricane Katrina.
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The Terrorism Risk Insurance Act ("TRIA"), 15 USC §6701 <i>et. seq.</i>, designed to make terrorism insurance readily available to property owners, is scheduled to sunset on Dec. 31, 2005. If the Act is not extended and the cost of terrorism insurance becomes prohibitive, lenders and borrowers may once again find themselves embroiled in controversy over the question of whether governing loan documents require such insurance.
What do negotiators fear most? Failure, being manipulated and being second-guessed. Why do negotiators fail and why are they manipulated or second-guessed? Often, it's lack of adequate preparation and disregard for the issues, purposes and concerns of the other side. A lack of internal alignment can lead to confusion and that dreaded second-guessing. A well-prepared negotiator can be manipulation proof, avoid the second-guessing and achieve valuable results.
The fourth anniversary of the tragedy in New York has come and gone, and our country remains on alert in an effort to prevent another terrorist attack. While we see frequent warnings published in the news and through industry groups, the heightened awareness those warnings generate does not put our companies in compliance with the laws requiring our participation in the fight against terrorism. This article examines the anti-terrorism laws that affect our industry and outlines best practices for compliance with those laws. It also provides information on enforcement activities that have occurred. It provides a basis for evaluating whether or not your company is in compliance with the anti-terrorism laws.
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To outsiders of the legal community, no rule is more familiar than the attorney-client privilege. In simple terms, what a client tells his attorney is supposed to stay between the client and his attorney. It is this covenant of secrecy that prompts some (but certainly not all) clients to be honest and forthcoming with the facts underlying a particular claim. In turn, it allows the attorney to provide the most effective representation to his/her client. Yet, in the world of bad faith claims, courts have proved willing to find that an insurance company has impliedly waived the attorney-client privilege even in cases when the insurer has not argued that it relied upon the advice of counsel in denying the claim. <i>See</i> Steven Plitt, <i>The Elastic Contours of the Attorney-Client Privilege and Waiver in the Context of Insurance Company Bad Faith: There's a Chill in the Air</i>, 34 Seton Hall L. Rev. 513 (2004).
