Upcoming Events
American Bar Association Annual Forum on the Entertainment and Sports Industries. Los Angeles, October 8-9. Will cover recent case rulings as well…
Case Notes
Highlights of the latest product liability cases from around the country.
Successor Liability Claims in Bankruptcy
More often than not, bankruptcy filings lead to the sale of a business as a going concern. Such sales are frequently concluded prior to confirmation of a plan of reorganization by resort to Section 363 of the Bankruptcy Code. Section 363 authorizes the sale of a bankrupt company "free and clear of any interest in such property." 11 U.S.C. '363(f). Product liability claims, though, can occur suddenly and seemingly at random long after the sale of the assets to the successor. The successful purchaser may have thought that the "free and clear" sale order was a legal barrier to successor liability. The prudent product liability practitioner knows otherwise.
Personal Injury Settlements with Minors: Avoiding Potential Pitfalls
You are involved in a products liability matter where one or more of the plaintiffs is a minor, which, in most jurisdictions, is a child under the age of 18. As with most claims, there is a strong likelihood that the ultimate resolution will be a settlement among the parties. Regardless of which party you represent, there are special considerations that come into play when a release and settlement involve a minor. Awareness of these considerations will greatly increase the chances that the release and settlement will withstand any future challenge.
Online: Web Site Addresses Product Safety Issues
If you need information on product recalls, unsafe products, or would like publications on a variety of consumer-related topics, visit the Web site for the U.S. Consumer Product Safety Commission (CPSC), <i>www.cpsc.gov</i>.
Practice Tip: Deciding Whether to Involve the Court in Confidential Matters
In a litigated dispute, the court is the referee between the parties, and the lawyers will routinely submit matters for its official approval. Agreements between the parties — such as agreements regarding document confidentiality or settlement — are much more easily enforced if entered as court orders rather than left as private contracts. Consequently, it is standard practice to reduce such agreements to orders.
Proposed Revisions to the ADA's Physical Accessibility Guidelines Released
On July 23, 2004, the long-awaited proposed revisions to the Americans With Disabilities Act's (ADA) physical accessibility guidelines, the "ADAAG," were published in the Federal Register. Though the changes will take effect on Sept. 21, 2004, they will not be enforceable until adopted in their final form by the U.S. Department of Justice (DOJ). Since the proposed ADAAG have been completely reformatted to conform more closely to existing uniform accessibility standards and certain uniform building codes, it will be necessary to compare the current and proposed ADAAG specifications to understand the full scope of the changes. The proposed guidelines involve more than 230 pages of text and commentary, and it is not yet known what impact these changes will have on construction activities or how these guidelines will force landlords to modify existing leases to shift some of the responsibility of these new guidelines to tenants.
Tenant Exit Strategies: Planning Ahead for a Way Out
When landlords and tenants negotiate a lease, particularly a retail lease, they typically have in mind a long-term relationship. The parties enter the relationship optimistically with the hope that the tenant's business will be successful at the particular location, that the entire project will be a success and that the tenant's operations will enhance the value of the property. Given the long-term nature of most retail leases, it is vital for tenants to think ahead, while at the negotiating stage, and anticipate how their business or the shopping center in which they are located may change (for better or worse) in the future. Tenants should negotiate maximum flexibility in their leases to ensure that their leases do not contain unacceptable obstacles to the tenant's ability to exit from the lease in the event circumstances change and the tenant no longer wants to remain in the lease. This need for flexibility will be tempered by the landlord's desire to retain the original tenant with which it negotiated and is comfortable. This article discusses two types of tenant exit strategies. First, those that are beneficial to the tenant ' while the tenant remains the tenant under the lease ' such as the alteration or elimination of an operating covenant. Second, those that allow the tenant to transfer its interest in the lease whether by merger, stock sale, assignment, sublease or otherwise.
