In the Marketplace
May 31, 2007
Highlights of the latest equipment leasing news from around the country.
FDA's Failure-to-Warn Pre-emption
May 31, 2007
Nearly one year after the U.S. Food and Drug Administration issued a pre-emption on filing failure-to-warn actions over federally approved drugs, rulings across the nation show a clear division over the issue.
Understanding China's New Franchise Regulations
May 31, 2007
The new franchise regulations recently issued by China's State Council became effective on May 1, 2007. Shortly after their promulgation, MOFCOM, the ministry that has authority to interpret and implement the regulations, issued two implementation guidelines, namely the Administration Rules on Commercial Franchise Filing and the Administration Rules on Commercial Franchise Information Disclosure. The regulations are intended not only to provide presale disclosure to prospective franchisees, but also to restrict use of franchising to legitimate business operators. Moreover, the regulations seek to gather statistical data on the scope of franchise activities in China through a franchise registration process.
Toll Road Leasing Programs: Ready to Roll?
May 30, 2007
States have recently, and with growing enthusiasm, embraced the use of public-private partnerships ('PPPs') as a highly effective method for addressing the significant capital needs associated with developing, expanding, and/or operating major roadway systems. Some of the largest roadway PPP deals to date have utilized leasing structures, and many states have enacted, or are in the process of enacting, legislation authorizing and encouraging leasing as a method to privatize toll roads. Leasing allows for an innovative teaming approach to the development and operation of various transportation-related assets, from design and construction through operation and toll collection. Leasing not only allows public sector officials to take advantage of private sector innovation and efficiencies, but it also provides a vehicle by which states can create large pools of money ' sometimes in the billions of dollars ' to address immediate and significant capital requirements without raising property or income taxes on their residents.
Valuing the Closely Held Business
May 30, 2007
The assessment of replacement compensation should not be undertaken without careful consideration. The valuation expert must be able to demonstrate that the analysis has been conducted using the best available data, that it was properly researched for reliability, that the components of actual compensation and replacement compensation are similar in nature and that the resulting determination is not biased and does not advocate for any position.
In the Spotlight: Drafting Better Leases for the Commercial Tenant
May 30, 2007
Too many tenants' businesses have suffered severe financial consequences or lost leases as a result of poorly drafted provisions. Therefore, it is imperative that tenants negotiate better leases in order to protect their interests. The suggestions in this article provide proposed remedies for a few of the harshest lease provisions. Although market conditions always play a factor in providing negotiating leverage to a landlord or tenant, some of these proposals should survive scrutiny in any real estate market.
Protecting and Attacking Exclusive Use Provisions in Retail Leases
May 30, 2007
Exclusive use provisions form the foundation of the economic relationships between tenants and landlords in shopping centers across the United States. Landlords make use of these provisions to obtain the right tenant mix in their shopping centers as well as to demand premium rents from the tenants that desire these economic protections. Tenants desire exclusive use provisions to gain the competitive advantages and protections that such provisions afford to their products and services. With the proliferation of so-called 'big box' retailers in shopping centers and the phenomena of over-retailing in communities throughout the United States, exclusive use provisions are increasingly coming under attack. In <i>Tippecanoe Assocs. II, LLC v. Kimco Lafayette 671, Inc.</i>, 829 N.E.2d 512 (Ind. 2005), the Supreme Court of Indiana entered the fray on this issue with a decision that affects the way these provisions should be drafted. This article, through a discussion of the court's decision in <i>Tippecanoe Assocs. II, LLC</i>, describes how exclusive use provisions are coming under attack and practical ways to draft around these issues and to protect landlords and tenants with exclusive use provisions in retail leases.
Medimmune v. Genentech and Its Aftermath
May 30, 2007
A rare U.S. Supreme Court decision in January 2007 may change the way parties negotiate patent license agreements in the future. The <i>Medimmune, Inc. v. Genentech, Inc.</i> decision has reversed the mainstream position that a patent licensee must discontinue paying royalties to challenge its obligation to pay royalties in a court of law. At face value, the decision might appear to be of little impact to parties of a patent license agreement. However, it could have a dramatic effect on how they approach the negotiation of a license agreement. In addition, the <i>Medimmune</i> decision has already been applied to patent infringement cases outside of the scope of licensing arrangements.
Lawyer Ads in Cyberspace
May 30, 2007
Nearly 30 years ago, the U.S. Supreme Court decided <i>Bates v. State Bar of Arizona</i> (433 U.S. 350 (1977; holding that 'blanket suppression' of attorney advertisements was an unconstitutional interference with First Amendment rights. However, the Court also recognized that some regulation of attorney advertising was necessary to protect consumers who lacked legal sophistication. Thus, the Court ruled that statements in lawyer ads that might pass muster in other industries could be misleading and were subject to reasonable regulation as to time, place and manner. The conflict between the First Amendment right to speech and the necessity and reasonableness of regulation of attorney advertising has continued to evolve since <i>Bates</i>, responding not just to changing mores regarding professional conduct, but to the challenges of new technology media.
Office 2007: Challenges and Opportunities for The Legal Community
May 30, 2007
The highly publicized release of Microsoft Office 2007' was received with caution in the legal industry. Promises of greater compatibility with non-Office programs were offset by a drastically redesigned user interface and concern over a new file format. Productivity hits and resulting end-user frustration are anticipated.
