Looking at Lease Provisions from the Litigator's Angle
September 28, 2006
Frequently, commercial lease issues are brought to the attention of a litigation lawyer only after a dispute between the landlord and the tenant has erupted. Oftentimes, the dispute involves the 'boilerplate' provisions that do not raise much interest during the drafting phase because they are not considered to be economic deal points. <i>See</i> 'Revisiting Boilerplate or 'Miscellaneous' Lease Provisions' in the January 2006 issue of <i>Commercial Leasing Law & Strategy</i>. This lack of interest in boilerplate provisions is a mistake because it is much easier to resolve concerns regarding those provisions ' which become very important in the litigation context ' while the parties are amicably moving toward closing a deal, rather than during the pendency of a lawsuit. Many times, disputes could have been either avoided or minimized had the parties clarified certain important issues while they were negotiating and drafting. This article discusses several leasing issues that should be carefully considered while the parties are still on friendly terms.
In the Spotlight: Assignment and Subletting Provisions Rock Your World
September 28, 2006
In the entire universe of legal and business terms that makes up the modern-day commercial lease, there are very few provisions that can change the world of the landlord or tenant. One of those world-changing provisions is the assignment and subletting provision.
Finding Uncertainty in Certain Damage Provisions
September 28, 2006
For years, careful landlords and tenants have used liquidated damages as a means to avoid the uncertainty of events beyond their control. If the tenant held over beyond its term, or the landlord breached the tenant's exclusive, liquidated damages were considered a dependable remedy to avoid costly and time-consuming litigation. Unfortunately, what seems certain to lease drafters is anything but certain when presented in court. A recent decision from the U.S. District Court for the Middle District of Georgia underscores that point.
In the Marketplace
September 01, 2006
Highlights of the latest equipment leasing news from around the country.
Dealing with Insurers in Liquidation
September 01, 2006
Insurer insolvency has become an increasingly significant concern. Since 1969, more than 400 property and casualty insurers have been placed in liquidation. The past 5 years have seen several larger commercial insurers go into liquidation, among them The Home Insurance Company and Reliance Insurance Company. Indeed, from just 2001 to 2003, Guaranty Associations paid approximately $5 billion in covered claims — more than half the $10 billion they had paid in the previous 31 years from their inception. This article addresses what creditors need to know when dealing with a financially troubled insurer.
Seventh Circuit Finds 'Floating' Forum Selection Clauses Valid
September 01, 2006
The sale of individual equipment leases from one equipment lessor to another, or entire portfolios of equipment leases, is common practice in the United States. One component that parties interested in purchasing equipment leases or portfolios of equipment leases desire in the equipment lease contract is a choice of forum clause that provides the flexibility for the purchasing party to initiate litigation in its own home state. However, the enforceability of forum selection clauses providing for one or more appropriate forums has been the question of some debate both in the federal and state courts. Recently, the Seventh Circuit Court of Appeals issued an opinion coming down squarely in favor of the enforceability of such forum selection clauses.
For Bally Total Fitness, Timing Is Everything in Franchising Decision
August 31, 2006
Bally Total Fitness is one of the most recognized brands in the U.S. fitness industry and the largest purchaser of fitness equipment in the country. The company spends $55 million annually on marketing and media support, and it offers the power of more than 40 years of business success and 20,000 employees that make the company strong ' all key components to a successful and highly sought-after franchising program. So why hasn't Bally implemented a national franchising program?
Vietnam's New Franchise Law: Momentum for Country Experiencing Strong Consumer Demand Growth
August 31, 2006
Franchising is a relatively new but rapidly developing strategy in Vietnam. Although there are currently few business franchise systems based on the traditional Western model currently operating in Vietnam, there is an increasing presence of established international franchise systems currently operating through company-owned and-managed outlets and increasing numbers of local systems, albeit at an early 'product distribution' evolutionary stage. The commercial environment for franchising is increasingly favorable: Vietnam is the fastest-growing Asian economy after China and India, and it is experiencing strong GDP growth and annual retail growth of more than 20%. There is a steady rise in disposable income, an emerging new consumer class, and increasing brand consciousness.
The Scope of Absolute and Total Pollution Exclusions
August 31, 2006
Insurance carriers and policyholders continue to engage in an ongoing debate with respect to the meaning and application of 'absolute' or 'total' pollution exclusions ' clauses that are contained in most general liability insurance policies sold since 1986. Absolute and total pollution exclusions generally preclude coverage for bodily injury or property damage 'arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants,' and define 'pollutant' to mean 'any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.'
