LJN Newsletters

Your company is vigorously developing new devices and methods in a promising technical area. The head of the development team calls you, as general counsel, for advice. Two U.S. patents were just issued that may impact a device your company is prepared to market and the method your company uses to make the device. You also have received a letter from your most vigorous competitor — one who has a well-funded technology program and a history of pursuing infringement actions. The letter advises that there is reason to believe that your company is infringing. Your company believes that it has the right to proceed to market, but wants your guidance on what to do.

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

One of the common issues facing businessmen and lawyers in the lease financing of complicated equipment such as aircraft, is how to impose an obligation upon the lessee to pay and segregate funds sufficient to assure aircraft maintenance expenses, while preventing these funds from being treated as property of a debtor and cash collateral within the meaning of Bankruptcy Code Section 363 (11 U.S.C. '363). If a lessee is asked in a written lease agreement to deposit, from time to time, contemplated amounts of cash by which to assure the lessor that certain long-term maintenance obligations will be funded and completed, or that rent will be paid, then there is a risk that these deposits might be treated as cash collateral and property of the estate. This subjects the lessor to the risk that the bargained-for cash set-aside funds, might, in a bankruptcy case context, not be available for the purposes for which they were originally intended. This article addresses a risk avoidance approach to that problem.

Over the past several years, courts faced with the issue of whether a lease is a "true lease" or a "disguised security interest" have been making it more and more difficult for lessors to have their leases confirmed as true leases. Through a process of focusing on economic reality instead of the intent of the parties and increasing the amount of residual value required at the end of a lease term, courts are creating a dilemma for the leasing industry. Certain segments of the equipment leasing industry are more severely effected by these changes than others.

It is an unfortunate consequence of the leasing business that leasing lawyers often become involved in bankruptcy matters. These attorneys, who rarely visit a courtroom, may think they don't need to worry about the rules of evidence. Yet evidentiary rules can provide critical protections. In a typical case or negotiation, lawyers create and circulate tremendous amounts of information ' much of which would be potentially damaging if obtained by other parties. To protect this information, leasing counsel need to be familiar with the rules of evidence and how courts have interpreted these rules. The case law interpreting these rules is not static; rather, it is constantly evolving in ways relevant to counsel who specialize in corporate insolvency. For example, a series of recent cases has explored the boundaries of the attorney-client privilege, examining such questions as, if counsel for a creditors' committee hires a financial expert, is the expert's work protected?

Recently filed cases in entertainment law, straight from the steps of the Los Angeles Superior Court.

Recent cases in entertainment law.

The U.S. Court of Appeals for the Seventh Circuit ruled that comic-book writer Neil Gaiman was joint owner of the copyrights in characters he created for the "Spawn" series published by Todd McFarlane. Gaiman v. McFarlane. The appeals court reached its decision by finding that Gaiman's claim wasn't time-barred.