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Commercial Contracts
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May 20, 2013
Real Estate Co. Accuses Adviser Of $32M Financing Fraud
A real estate firm launched a suit in Texas state court Friday seeking to hold a financial adviser liable for an alleged $32 million fraud perpetrated by his brother to fund a California condominium project, alleging the adviser lent credibility to the fraud and abetted his brother.
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May 20, 2013
Exxon Can't Nix Ex-VP's $5M In Stock, Texas Justices Told
A former Exxon Mobil Corp. vice president on Friday told Texas’ highest court that compensation agreements he inked with the oil and gas giant allowing it to cancel $5 million in stock incentives he held after he went to work for a rival are unenforceable.
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May 20, 2013
Microsoft Accuses Licensee Of Ripping Off Software
Microsoft Corp. launched a suit in Georgia federal court Wednesday accusing Ebix Inc. of copyright infringement and breaching a licensing agreement by making unauthorized copies of programs and attempting to stymie Microsoft's efforts to investigate.
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May 20, 2013
EEOC Sues Book Distributor Over Severance Restrictions
The U.S. Equal Employment Opportunity Commission on Monday hit Baker & Taylor Inc. with a suit in Illinois federal court, accusing the book distributor of forcing employees to sign unlawfully broad and unenforceable releases in order to be eligible for severance pay.
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May 20, 2013
Full 2nd Circ. Pressed To Rethink Condo-As-Lot Decision
The owner of the Residence at The Ritz-Carlton Westchester filed a motion for en banc rehearing with the Second Circuit on Monday, in a dispute with prospective residents over whether a single-floor condominium in a multistory building is subject to disclosure and reporting requirements.
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May 20, 2013
Someone 'Had To Stand Up' To Trump, Condo Investor Says
An Illinois real estate investor testified Monday that part of why she decided to sue business mogul Donald Trump's companies over their allegedly fraudulent move to pull out of a revenue-sharing offer at his luxury Chicago tower was because "somebody had to stand up to him."
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May 20, 2013
Morgan Stanley Wins Arbitration Of Tribe's $26M RICO Suit
A Florida federal judge on Friday refused to permit an Indian tribe to sue Morgan Stanley Smith Barney LLC for allegedly aiding an embezzlement spree that drained $26 million from tribal coffers, rejecting the tribe's bid to invalidate an arbitration agreement.
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May 20, 2013
Calif. Insurer Accused Of Bilking Policyholders
A California man claiming he is being shortchanged on his medical insurance benefits lodged a putative class action in state court accusing Unum Life Insurance Co. of America of denying an annual benefit increase guaranteed in its long-term care policies.
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May 20, 2013
High Court To Review Preemption Of Frequent Flier Suits
The U.S. Supreme Court said on Monday that it would decide whether or not the Airline Deregulation Act preempts breach of contract suits against airlines, granting writ to a proposed class action brought by consumers against a Delta Airlines Inc. subsidiary.
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May 20, 2013
Squire Sanders Beats Hartford's Appeal Over $15M Legal Tab
A California appeals court held Friday that Hartford Casualty Insurance Co. could not sue Squire Sanders directly to win back some of the $15 million it paid the firm to independently defend J.R. Marketing LLC against claims that its founders stole business from a former employer.
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May 20, 2013
FDIC Loses Fight Over $30M In Imperial Capital Bankruptcy
A California judge on Thursday rejected a bid by the Federal Deposit Insurance Corp. to claim $30 million in tax refunds as the receiver of the failed Imperial Capital Bank, saying the funds belong instead to the bank's parent under the terms of a prebankruptcy contract.
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May 20, 2013
Bankrupt Norse Holding Land Hostage, Suit Says
Dozens of New York landowners hit oil and gas producer Norse Energy USA with an adversary suit Friday, claiming the bankrupt company is holding their land hostage with expired leases while it waits for a hydraulic fracturing moratorium to lift.
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May 20, 2013
Snoop Dogg Shakes Claims Over Role In Druggy Video
Rapper Snoop Dogg lost a bid Friday to dismiss breach of contract and fraud claims filed by a Lebanese businessman, but did defeat an accusation that he had violated the man's publicity rights by including him in a drug-filled music video.
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May 20, 2013
$8.5B BofA Settlement Will Be Weighed By Judge, Not Jury
A New York state judge said Monday that she alone, and not a jury, will decide if Bank of America Corp. can go through with a $8.5 billion mortgage-backed securities settlement, finding that the process used doesn't require a jury.
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May 20, 2013
Teradyne Hit With Antitrust Suit Over Chip Testing Equipment
Teradyne Inc. was hit Friday with antitrust and contract claims in Massachusetts federal court over an alleged effort to drive Boston Semi Equipment LLC from the market for repairing and selling used Teradyne semiconductor testing equipment.
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May 20, 2013
Comcast Dodges Fee Suit Launched By Business Customers
A Pennsylvania federal judge on Friday tossed a proposed class action accusing Comcast Cable Communications Inc. of wrongly hitting its business-class customers with early termination and Internet equipment fees, saying there's no controversy since Comcast offered to settle the allegations in a previous lawsuit.
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May 20, 2013
Former NJ Judge Joins Mandelbaum Salsburg's Dispute Group
New Jersey law firm Mandelbaum Salsburg Lazris & Discenza PC has landed a retired Essex County Superior Court judge to join the firm's alternative dispute resolution practice group, specializing in mediation and arbitration, it announced Monday.
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May 20, 2013
High Court To Review SOX's Protection Of Private Contractors
The U.S. Supreme Court said Monday that it would clarify whether private contractors of public companies are protected by the Sarbanes-Oxley Act’s whistleblower protections, granting writ to a pair of retaliation suits against privately owned Fidelity Investments.
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May 17, 2013
PokerStars' Bid To Buy Casino Sinks In NJ Court
A New Jersey judge on Friday ended PokerStars’ campaign to buy an Atlantic City casino, refusing to cement a temporary injunction preventing the casino’s owners from terminating the deal and declining to invalidate a contract written with terms unlike any the judge said he’d ever seen.
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May 17, 2013
Latham Witness Can't Claim Piece Of $10M Judgment
Latham & Watkins LLP didn't break the law when it refused to pay a portion of a $10.3 million judgment won by one of its clients in a real estate lawsuit to an auditor who testified at a deposition, since the auditor was a witness, not an expert, a California appeals court ruled Friday.
Expert Analysis
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SEC Must Stop The Latest Effort To Impede Whistleblowers
Increasingly, employees have been presented with language in severance and settlement agreements that impose on whistleblowers a number of restrictions. These provisions pose a serious threat to the success of the U.S. Securities and Exchange Commission's whistleblower program, say David Marshall and Debra Katz of Katz Marshall & Banks LLP.
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The Who, What And Why Of Public-Private Partnerships
Public-private partnerships have been used in a wide range of sectors to provide public services, from power plants and railroads to hospitals and sanitation plants. Yet there are a variety of potential contractual arrangements and the financing of a PPP can be complex, say Maryam Khosharay and Herbert Glaser of Haynes and Boone LLP.
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Independent Contractors Strike Out — Lessons For Employers
A lesser-known risk among companies that use independent contractor models is the threat of Title VII litigation, which two recent appellate court decisions, Allen v. Radio One and Alam v. Miller Brewing Company, addressed. These cases remind employers of the ways to minimize such litigation risks, such as adopting a policy to not rehire former employees terminated for misconduct, says Douglas Darch of Baker & McKenzie.
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Renovated: Fla. Rules On Design Professional Liability
A new Florida law will effectively permit business entities providing professional services to limit by contract the liability of their individual employees or agents. Attorneys with design professional clients — including architects, interior designers, landscape architects, engineers, surveyors and geologists — should expect requests for limitation of liability provisions in such contracts beginning July 1, 2013, say Keith Ramsey and Monte Starr of Holland & Knight LLP.
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Nuts And Bolts Of Negotiating Forbearance Agreements
Excerpt from Lexis Practice Advisor
When faced with default under a loan agreement, a company may request that the lender forbear for a limited period of time from taking legal actions in order to allow the company time to resolve its financial problems. In such a scenario, parties should consider a number of items in determining whether a forbearance agreement is appropriate, say George South and Daniel Egan of DLA Piper LLP.
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Commercial Leasing Recovery Remains Uneven
In addressing trends in the current commercial leasing market, several patterns are apparent. For one, many property owners that have been able to survive foreclosure now face the specter of refinancing their property in the mixing bowl of loss of market value, lenders requiring a lower loan-to-value ratio, and reduced cash flow from the property, says Barry Katz of Arnstein & Lehr LLP.
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Spotlight On Affiliated Lender Provisions And Debt Buybacks
Over the last few years, provisions in credit agreements permitting the borrower’s equity sponsor and other affiliates to purchase term loans made thereunder and allowing the borrower to “repurchase” such term loans on a non-pro rata basis have become common. But many of the provisions governing such purchases do not adequately protect the non-affiliated lenders’ interests in a bankruptcy of the borrower, say Robert Finley and Ram Burshtine of King & Spalding LLP.
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A Wake-Up Call For Video Game Developers
The extraordinary relief granted in the Fifth Circuit's recent decision in TimeGate Studios Inc. v. Southpeak Interactive LLC demonstrates that video game developers and publishers should seriously consider what terms and conditions they will agree to, and must do their best to ultimately comply with the language in a development agreement, says Sean Kane of Pillsbury Winthrop Shaw Pittman LLP.
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Sui Generis At Supreme Court
Not since Franklin Roosevelt took office in 1933 have we seen a Supreme Court so imbalanced that it would throw its own power away as it did in Twombly, Iqbal and Concepcion, or devalue its own authority through matters of little interest, simply for the benefit of large American corporations, says Fred Isquith of Wolf Haldenstein Adler Freeman & Herz LLP.
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FRCP Changes Will Have Major Impact On 3rd-Party Discovery
The U.S. Supreme Court recently endorsed significant changes to Rule 45 of the Federal Rules of Civil Procedure that will greatly simplify the third-party subpoena process, but the changes do not go as far as some would have liked in centralizing third-party discovery disputes to the court where the litigation is pending, say Mark Klapow and Ariel Applebaum-Bauch of Crowell & Moring LLP.