By Michael J. Zerman of Zuber & Taillieu LLP
On October 30, 2009, the Federal Deposit Insurance Corporation (“FDIC”), together with other federal regulatory agencies, adopted a “Policy Statement on Prudent Commercial Real Estate Loan Regulation.” (http://www.fdic.gov/news/news/press/2009). More...
By Patrick Del Duca, H. Jacob Lager and Michael J. Zerman of Zuber & Taillieu LLP
The Internal Revenue Service and the U.S. Department of Treasury recently published new guidance to provide more flexible and proactive options for restructuring securitized commercial loans held by Real Estate Mortgage Investment Conduits (REMICs). More...
By Yuri Mikulka of Zuber & Taillieu LLP
The Ninth Circuit has held that a corporate executive’s statements made to outside counsel hired to conduct an internal investigation and to report its findings to corporate auditors, are not protected by attorney-client privilege, even if the executive may not have received a proper Upjohn-type warning. More...
By Kevin I. Shenkman and Michael J. Zerman of Zuber & Taillieu LLP
In today’s difficult economic climate, some commercial tenants are paying closer attention to parking code violations that landlords and tenants may have overlooked for years. Such violations may be difficult for landlords to correct, but may support tenant claims for contractual damages, injunctive relief, lease termination and disgorgement of past profits. More...
By Yuri Mikulka of Zuber & Taillieu LLP
On May 18, 2009, the Supreme Court entered Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), which in combination with Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), is one of the most significant decisions impacting the viability of all initial civil pleadings filed in federal courts. For decades, filing a civil complaint with “a short and plain statement of the claim” was deemed sufficient. Iqbal now requires plaintiffs to plead concrete facts at the outset, and instructs judges to dismiss lawsuits where the allegations seem implausible, as defined in context by judicial experience and common sense. This new “plausibility standard” serves as a powerful tool for defendants seeking early dismissal of litigation. More...
By Michael J. Zerman of Zuber & Taillieu LLP
The material adverse change (“MAC”) clause has become a common provision in real estate loan documents. This clause typically provides, in broad terms, that a material adverse change in the financial condition of the borrower, the secured property, or any guarantor will constitute an event of default, upon which the lender may accelerate the borrower’s obligations under the loan documents and exercise the lender’s other remedies, including foreclosure. More...
