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Expert Analysis

• FTC's New Approach Creates Challenges For M&A Deals

  

  The Federal Trade Commission's recently announced shift in how it will review proposed mergers and acquisitions is part of a broader trend toward increased, social policy-oriented antitrust enforcement, so parties should prepare for longer, more expansive FTC reviews and greater regulatory risks, say attorneys at Fried Frank.

• Enviro Review Standard Tweaks May Clarify Cleanup Liability

  

  Forthcoming revisions to the standard for Phase I environmental site assessments will likely afford property owners and operators clearer protection from liability for hefty environmental cleanups, so interested parties in real estate and M&A deals should pay close attention, say Lorene Boudreau at Ballard Spahr and Mitchell Wiest and Sara Redding at Roux Associates.

• NY Debt Collection Ruling's Narrow Application For Lenders

  

  The New York Supreme Court's recent ruling in Citibank v. Yanling Wu, that licensure as a debt collection agency wasn't necessary to prosecute a mortgage foreclosure, should not be read too expansively, and leaves open whether the failure to meet the licensure requirements could constitute a foreclosure defense, says Christopher Gorman at Abrams Fensterman.

• Insurance Commissioner's Agenda: Wis. Tackles Climate Risk

  

  Wisconsin Commissioner of Insurance Mark Afable talks about educating consumers on potential climate-risk coverage gaps and mitigation efforts, and encouraging insurers to recognize the latter in underwriting, in the face of increasingly frequent and severe weather disasters.

• How A New Law Changes Commercial Receiverships In Conn.

  

  The Uniform Commercial Real Estate Receivership Act, which takes effect in Connecticut next year, will vastly improve the predictability and administration of commercial real estate rent receiverships as a means of protecting a mortgagee's collateral pending a foreclosure, and provides new strategic considerations for creditors, say attorneys at Shipman & Goodwin.

• NY 'Intentional Violation' Ruling May Delay Foreclosure Cases

  

  A recent New York state appellate decision in VFS Lending JV II v. Krasinski may open up lenders to costly and time-consuming discovery in mortgage foreclosure cases where borrowers allege intentional violations of the state’s Banking Law, potentially forcing lenders to reach early resolution with debtors, says Christopher Gorman at Abrams Fensterman.

• Despite Giuliani's Assertion, Lawyers Cannot 'Throw A Fake'

  

  A new transcript reveals Rudy Giuliani telling federal agents in 2018 that it was permissible to "throw a fake" during a political campaign, but the notion that lawyers can commit acts of dishonesty without consequence as long as they do so outside their professional practice is belied by the rules of professional conduct and case law, says Hilary Gerzhoy at Harris Wiltshire.

• NY Bankruptcy Preemption Case Needs High Court Review

  

  Until the U.S. Supreme Court agrees to review Pilevsky v. Sutton 58 Associates — and reverses the New York Court of Appeals’ decision that bankruptcy preemption does not bar state court tortious interference claims — organizations risk civil liability for providing professional services or loans to financially distressed entities, say Darren Azman and Natalie Rowles at McDermott.

• Embracing ESG

  

  In this Expert Analysis series, in-house counsel share how they are adapting to the growing importance of environmental, social and corporate governance factors.

• The Right Condo Governance Provisions Can Enhance Safety

  

  Though condominium and community governance documents cannot prevent a structural failure, such as the Champlain Towers tragedy, developers and their lawyers can draft these documents to better educate board members and remove obstacles to preserving community assets, says Bob Burton at Winstead.

• Worse Can Be Better For Nonjudicial CERCLA Allocation

  

  With the U.S. Supreme Court's recent Guam v. U.S. decision potentially reviving some previously time-barred claims under the Comprehensive Environmental Response, Compensation and Liability Act, parties seeking nonjudicial Superfund settlements should consider that a quicker, less in-depth allocation process may produce a better result, says William Ford at Lathrop GPM.

• Risks To Consider For Commercial Real Estate Gap Closings

  

  The use of the gap closing mechanism in commercial real estate transactions — when there is a delay between a purchase and the recording of documents — has been increasing amid the pandemic, but certain complications can arise for buyers when an intervening matter influences a title's quality, says Jennifer Ioli at Sherin and Lodgen.

• Time To Rethink Florida's Condo Termination Law

  

  In light of the Champlain Towers tragedy, legislators must find a proactive strategy for dealing with Florida's other aging condominiums, although previous attempts have been complicated by judicial actions and financial downturns, says Martin Schwartz at Bilzin Sumberg.