Corporate and Real Estate Transactions

Court Interprets Scope of Indemnity Clauses Involving Deepwater Horizon Gulf Oil Spill

As the trial date for the sprawling Deepwater Horizon Gulf Oil Spill litigation date rapidly approaches, the federal district court has been busy issuing decisions to help refine the issues. Two of these opinion involved interpreting the scope of contractual indemnities-one of our favorite topics. The first opinion involved cross-motions for partial summary judgment filed …

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Insurance Requirement Allows Voidable Indemnity Clause To Be Enforceable

Can a party be indemnified for its own negligence? In many states, such provisions are void as against public policy. Other some states allow enforcement of indemnification for the indemnitee’s own negligence when the clause expressly references “negligence.” Likewise, many states will enforce indemnities where the indemnified party is strictly liable because of its status …

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Review of Recent CERCLA Third Party Defense “Due Care” Caselaw-Part 1

The Third Party defense (42 U.S.C. 9607(b)(3) is probably the most important CERCLA defense. To assert the defense, a defendant must satisfy the following four elements or prongs: The release was solely caused by a third party; The defendant had no direct or indirect “contractual relationship” with the third party (“contractual relationship” prong); The defendant …

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Company Not Liable For Disposal By Employee

A federal district court ruled that a company was not liable for improper disposal of PCB-contaminated capacitors by a former employer because the employer was not aware of nor had authorized the actions of its former employee. In essence, the court concluded that the employee had engaged in an independent venture for which his employer …

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Ct Rules Existence of Seller Not Relevant For Successor Liability

One of the underpinnings of corporate law is that a purchaser of assets is not normally liable for the liabilities of the predecessor while a stock purchaser will take on the pre-existing liabilities. Courts have fashioned four exceptions to the no liability for asset purchaser rule. The exceptions are: express or implied assumption of liability …

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Foreclosing Banks Increasingly Using Env Insurance For Sales Risks

As the nation slowly lifts itself out of the effects of the Great Recession, lenders are beginning to increase the pace of foreclosures on commercial properties. The volume of foreclosures is likely to significantly increase during the next few years as the loans that were orginated during the height of the credit bubble become due. With real …

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No Administrative Claim For Hotel Damaged By Methane from Bankrupt Landfill Operator

It seems like there were a lot of cases in 2011 involving commercial properties impacted by methane gas from former landfills. A recent case involved a novel question if the owner of a hotel damaged by methane gas migrating from a landfill could seek administrative claim status in a chapter 7 bankruptcy case. In the …

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Study Analyzes Trends In Key Terms in M&A Deals

Shareholder Representative Services (SRS) recently issued the results of its M&A Deal Terms Study covering 196 private-target acquisition agreements. The deals closed between July 2010 and September 2011. The 2011 study compares results against an earlier study that encompassed deals from July 2007 to July 2010. Some of the interesting findings are: use of escrows …

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Confusion Over Scope And Timing of RCRA Cleanup Leads to Potential Liability for Brownfield Developer

Last year, the brownfield community was rattled by the Ashley II decision of United States District court for the District of South Carolina holding that a brownfield developer failed to comply with the requirements of the Bona Fide Prospective Purchaser defense. The court ruled the developer did not comply with its post-closing continuing care obligations …

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Court Allows Claims To Proceed Despite NFA Letter

No Further Action (NFA) letters have become an important tool in transactions involving contaminated properties. Contracting party often use issuance of an NFA letter has the mechanism for establishing that a party has satisfied its obligations under an agreement. Issuance of an NFA letter often also operates as a release of statutory liability and may …

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