Corporate and Real Estate Transactions

Insurance Requirement Allows Voidable Indemnity Clause To Be Enforceable

Corporate and Real Estate Transactions, environmental insurance, Underground Storage Tanks /

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

CERCLA, Corporate and Real Estate Transactions /

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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Ct Rules Existence of Seller Not Relevant For Successor Liability

CERCLA, Corporate and Real Estate Transactions /

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 Environmental Insurance For Sales Risks

Corporate and Real Estate Transactions, Environmental Due Diligence, Lender Liability /

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 originated during the height of the credit bubble become due.

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

bankruptcy, Corporate and Real Estate Transactions, Environmental Due Diligence, Lender Liability /

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

Corporate and Real Estate Transactions, Disclosure of Environmental Liabilities, Environmental Due Diligence /

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

Brownfields, Corporate and Real Estate Transactions, Environmental Due Diligence, Hazardous Waste /

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

Brownfields, Corporate and Real Estate Transactions, oil spills, Underground Storage Tanks /

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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District Court Rules Injunctive Order not Dischargeable Claim

bankruptcy, Corporate and Real Estate Transactions /

New Mexico had issued an order under its Water Quality Act to abate groundwater contamination eminating from septic field and lagoon on debtor’s property. The debtor argued that since the state was essentially requiring it to pay for the cleanup, the order should be considered a claim that could be discharged under the Bankruptcy Code.

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