LJN Newsletters

Every time someone hits the "send" button, evidence is created -- and electronic evidence is something with which e-commerce ventures, by their very e-nature, must be concerned. They must also come up with elements in their business-process plans to deal with compliance or other legal matters arising from e-mail.

The American Bar Association and the New York State Bar Association, along with state bars nationwide that support the two groups, asked the U.S. Court of Appeals for the D.C. Circuit to rule once and for all that the Federal Trade Commission (FTC) has no right to hold lawyers to certain privacy provisions in the 1999 Gramm-Leach-Bliley Act.

No technology issue concerns -- or should concern -- individuals, e-commerce and government regulators more than Internet identity theft. The statistics are staggering. In the last year, LexisNexis reported that unauthorized people apparently took personal information on more than 30,000 Americans from its database -- by stealing logins and passwords of legitimate customers. Another data broker, ChoicePoint Inc., reported a possible theft of similar data from as many as 145,000 people through individuals claiming to have legitimate and legal use for the data they purchased from ChoicePoint. But those numbers look small (except, of course, to the affected individuals) when compared with the identity-theft problem acknowledged by Bank of America -- involving about 1.2 million federal employees.

Highlights of the latest equipment leasing news from around the country.

With bonus depreciation gone, even equipment leasing companies that do not make any more book profit in 2005 than they did in 2004 may nonetheless find themselves facing sharply higher tax liabilities. In fact, 2005 taxes will be especially painful: First, equipment leasing companies will not have the advantage of applying bonus depreciation to new assets, so they have lost a substantial deduction. Second, depreciation is a zero-sum game. You can speed up or slow down the schedule, but you can never depreciate more than 100% of an asset's cost. So if you depreciate and deduct more than 50% of the value in its first year, there is significantly less value available to depreciate in subsequent years.

The leasing industry is going through wars again. In addition to bankrupt industrial companies and retailers, airlines are either in bankruptcy or teetering on the brink of a Chapter 11 filing. Such precarious times engender a host of issues for lessors, the paramount question of course being "do I get paid?" Key to that is what lessors are entitled to for the "post-petition" phase, the time between the date of the bankruptcy filing and the date the lease is either assumed or rejected by a bankruptcy trustee or a debtor in possession ("DIP"). Fractious court decisions have made it uncertain how and for how much lessors may recover for post-petition contractual lease obligations, but now a new appellate court decision may prove to be the turning point toward victory for the leasing industry.

The Second Circuit recently handed down a key creditors' rights decision Sharp Int'l Corp. v. State Street Bank & Trust Co. (In re Sharp Int'l Corp. & Sharp Sales Corp.), 2005 U.S. App. LEXIS 5241(2d Cir. Apr. 1, 2005). The court affirmed the lower courts' finding that a secured lender was not liable for aiding and abetting management's breach of fiduciary duty, and not liable for receiving a $12.25 million loan repayment from a closely held borrower it correctly suspected of engaging in massive fraud. The decision limits the scope of a lender's duties to its borrower and other creditors. Absent the lender's participation in its borrower's fraud, the lender should have no liability on a fraudulent transfer theory or on any other basis at least in New York, where Sharp arose.

The latest doings.