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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.
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The Second Circuit recently handed down a key creditors' rights decision <i>Sharp Int'l Corp. v. State Street Bank & Trust Co.</i> (<i>In re Sharp Int'l Corp. & Sharp Sales Corp.</i>), 2005 U.S. App. LEXIS 5241(2d Cir. Apr. 1, 2005). The court affirmed the lower courts' finding that a secured lender was <i>not</i> liable for aiding and abetting management's breach of fiduciary duty, and <i>not</i> 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 <i>Sharp</i> arose.
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New York City's 2006 Executive Budget, recently passed by the NY State Legislature (S5568/A8434), significantly changes the NYC Unincorporated Business Tax (UBT) rules. Assuming the law is signed by the governor, as expected, law firms working in NYC will need to adjust to changes in three areas.
The resolution of a class action almost always involves an award of attorneys' fees to plaintiffs' counsel, as part of the overall settlement or based on a separate hearng. But insurance companies often resist paying these awards. They contend that the awards constitute penalties or do not constitute insured compensatory damages. They also sometimes contend that the awards are not covered because they are derivative of uncovered claims.
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This article nicely complements last month's A&FP special edition on "Putting Business Intelligence to Work." Not only does Warren Knowles introduce another interesting software product, but he also explains clearly how the firm's BI software has come to have multiple points of contact with the firm's other application software systems.
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The mandatory retirement and similar policies that firms have wielded to effect such transitions are now under threat. The U.S. Equal Employment Opportunity Commission presented a clear legal challenge earlier this year when it sued Sidley Austin Brown & Wood, alleging age discrimination in the firm's dismissal and demotion of older partners. But an even greater challenge to firm retirement policies may be posed by the growing number of older partners who feel they have remained highly productive and insist on holding onto privileged positions, either by negotiating special arrangements or by decamping to other firms.
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On June 27, 2005, the Second Circuit overturned a lower court's determination that an Internet advertising company's delivery of targeted, contextually relevant pop-up ads constituted trademark infringement. The plaintiff, 1-800 Contacts, Inc. ("1-800"), sued WhenU.com ("WhenU") for trademark infringement as well as multiple other federal copyright, state infringement, and common law claims. The Second Circuit limited its review of the case to the plaintiff's Lanham Act claim, remanding the rest of 1-800's claims back to the district court.
To rely on the dictionary or not to rely on the dictionary, and to what extent, that is the question. A question which after frenzied anticipation by the patent bar, the <i>en banc</i> U.S. Court of Appeals for the Federal Circuit, in its July 12, 2005 landmark decision of <i>Phillips v. AWH Corp.</i>, No. 03-1269, -1286, 2005 U.S. App. LEXIS 13954 (Fed. Cir. July 12, 2005), has answered: While dictionaries may be useful to assist in the understanding of a commonly understood meaning of a claim term, the proper starting point is the patent specification and corresponding prosecution history.