'Perfect Pay' Provisions in Troubled Credit Markets
January 31, 2008
In the current era of credit uncertainty spawned by the subprime mortgage crisis, perfect pay provisions may be subject to changes as banks, leasing companies, hedge funds, and other financial institutions to which these payments have been sold or pledged ('Funders') tighten credit standards and re-examine transaction risk, particularly in syndications of interests in leases and loans.
Case Briefs
January 31, 2008
Highlights of the latest insurance cases from around the country.
Everyone's an Expert
January 31, 2008
All of us who are interested in criminal law have seen the 'Battle of the Experts' ad nauseum. The prosecution trots out an 'expert' with enough acronyms…
Contours of the Fortuity Doctrine
January 31, 2008
This article explores how the fortuity doctrine has evolved to focus increasingly on the knowledge and conduct of the insured.
Measure the Premises Twice: Cut the Deal Once
January 31, 2008
Measuring the premises in advance of the letter of intent can help to avoid backtracking on points and re-negotiating the business deal during the lease negotiation process.
El Toro: A Red Flag on Lease Rejection Damages
January 31, 2008
The U.S. Court of Appeals for the Ninth Circuit recently issued the first circuit-level decision regarding what sort of damages are subject to the cap imposed by Bankruptcy Code '502(b)(6) on landlords' claims arising from a debtor's rejection of a nonresidential real property lease.
In the Spotlight: Ten Suggestions for Owners Starting a Major Construction Project
January 31, 2008
There comes a time in the life of almost every company when it will engage in a major construction effort. Here are 10 basic suggestions from a seasoned construction litigator, who has spent 20 years working on the back end of troubled projects, to help you on your way to a successful — even though it may, at times, seem stressful — project.
Misrepresentation: Insurance Company Efforts to Avoid Statutory Requirements
January 30, 2008
More than a century ago, many states began to protect policyholders from insurance company efforts to deny coverage on the grounds of alleged falsehoods in the application for insurance, when such alleged misstatements were not material to the insurance company's decision to sell the coverage. While insurance companies have attempted by various methods to avoid such protections, courts generally have rejected these efforts and upheld statutory limitations on an insurance company's right to void coverage.
Excess 'Follow Form' Policy Obligations: Determined By Primary Policy, Not By Primary Insurer
January 30, 2008
A recent decision by the Supreme Judicial Court of Massachusetts appears to be the first to squarely address whether or not an excess insurer is bound to a primary insurer's coverage and settlement decisions by virtue of the 'follow form' nature of the excess policy. The court, relying in part on legal decisions upholding the separate and independent nature of primary and excess insurance contracts (and the rights and responsibilities under each), held that follow form excess insurers are not so bound.
Climate Change: D&O Issues for Policyholders
January 30, 2008
Directors and officers are developing strategies to address the business impact of climate change and the potential financial impact of current and future greenhouse gas regulation. Among the challenges they face are how to address disclosure obligations related to these financial risks and how to maximize potential insurance coverage under directors' and officers' liability insurance policies should climate-related claims be asserted.
