May We Waive Goodbye to Juries?
Like most rights, the right to a jury trial can be waived. In general, commercial landlords disfavor jury trials, especially when the opposing party is an individual, finding the outcomes of such trials to be either too uncertain, or if consistent, consistently against the landlord's interest. The general perception is that juries tend to favor individuals in disputes against institutional parties as a way to rectify a perceived injustice that corporations and other institutions allegedly inflict on the public. Jury trials are also more costly than non-jury trials, and parties may waive their right to a jury trial to avoid the added expense.
Negotiating Broker Agreements
Your company (the 'Company') has decided it needs to find additional space for lease and/or to dispose of excess space and, after extensive due diligence, the Company has identified the ideal real estate broker (the 'Broker') to work with in the transaction(s). You and your new Broker have shaken hands on the basic terms of engagement (such as term and commission rates), and you have received and are now asked to review your Broker's standard form of retention agreement (the 'Agreement'). The Agreement, as is customary with most broker's standard forms of retention agreements, is only a couple of pages long. Should the Company sign it? After you have considered the issues described in this article and negotiated to protect the Company's interests to fit your particular circumstances, the answer is 'yes.' This article discusses some of the common issues that you may want to explore before the Company signs and delivers the Broker's form of retention agreement.
Avoiding the Sand Trap: Silica Liability and the Premises Owner
Many landlords have commissioned refurbishing or cleaning that involved sand blasting, concrete cutting, or masonry drilling on or at a building that remained in use. Some have leased premises to tenants that engage in these activities or that engage in production steps that include sanding, blasting, or scouring. There are special concerns about these activities that landlords should address, and this article explains why.
When Is Equipment Not 'Equipment'? Inventory Leasing or Leasing to Rental Companies
Part One of this series discussed special perfection rules for purchase money security interest in inventory and additional risks when leased goods are 'inventory.' This second installment addresses: buyer in ordinary course of business under revised Article '9-320(A); power to transfer and entrusting under '2-403; and rights of buyers and Sublessee in ordinary course under '2A-305.
Revised Proposal: Understanding the Interagency Statement on Complex Structured Finance Activities
Many U.S. financial institutions that have participated in equipment leasing transactions (particularly in the large-ticket and municipal markets) in the last 20 years will be keenly aware that as the structures grew ever more complicated, Congress and the federal regulatory agencies grew intensely interested. Whether the institution had a major role in the transaction or simply provided a service, some degree of scrutiny could be expected, often in conjunction with a tax audit of its client. The risks to financial institutions from participating in complex structured finance transactions of all types became a source for concern for banking and securities regulators. The principal federal regulators responded in 2004 with a proposal that financial institutions investigate, and bear responsibility for evaluating, the legal, tax, and accounting basis of their clients' complex structured finance transactions. The goal: to limit the institutions' own credit, legal, and reputational risk from such participation.
The USA PATRIOT Act Renewed: Reassessing Money Laundering Risk in Finance Transactions
The federal government is stepping up its aggressive enforcement of anti-money laundering/combating the financing of terrorism ('AML/CFT'). Enforcement actions have already spread beyond 'traditional' financial institutions, such as banks. Regulations that are expected to be promulgated soon will likely embolden these enforcement actions against leasing companies, equipment vendors, finance companies, and other 'financial institutions.' These parties should reassess their compliance risk under the AML/CFT rules. The consequences of these risks are important. For example, the loss of reputation from being brushed with the taint of money laundering can sink a business.
