By using online cryptocurrency technologies like tokens and blockchains, people could participate in real estate transactions that are too unwieldy in the analog world. Soon, these technologies may let anyone with a few thousand dollars play tycoon and buy a part of a condo or iconic building.
NFTs, or non-fungible tokens—digital certificates that convey exclusive rights to something—is a new concept being applied to real estate, supporters say they will become standard in the industry.
This is a brief account of some of the important environmental and administrative law cases recently decided.
THE U.S. SUPREME COURT
BP PLC, et al. v Mayor and City of Baltimore
The issue the court confronted was a procedural matter: Can the defendant energy companies use the federal removal statutes (see 28 USC Section 1442) to remove a state law climate change lawsuit to federal court? Here, a group of energy companies were sued by the mayor and city council of Baltimore in state court, where they alleged that the defendants had concealed the adverse environmental effects of the fossil fuel products they promoted and sold in Baltimore City. Several similar lawsuits have been filed in many state courts, where typically it is alleged that the defendants can be sued on various common law theories. Rather than defend these cases in state court, the defendants have sought to remove these cases to federal court because climate change liability appears to be an issue that should be settled at the federal level. These efforts have been unsuccessful, with most federal trial and appellate courts holding that the reasons cited for removal (oftentimes the federal officer removal statute) have not been persuasive. In this case, both the Maryland federal district court and the U.S. Court of Appeals held they had no jurisdiction to authorize removal, and thus returned the case to the state court. Noting that the U.S. Court of Appeals for the Seventh Circuit ruled that a removal action could be countenanced under Section 1442, thus creating a circuit split, the Supreme Court held that a straightforward reading of the removal statute empowers the reviewing court to examine all theories for removal that a district court has rejected. Consequently, the Court remanded the case to the Fourth Circuit where it can decide, “in the first instance,” whether there actually exist grounds to remove this case to federal court.
In our previous post we discussed the importance of conducting a thorough due diligence and procurement process with smart technology providers. Next up? The contract.
The price of a procured product is always important, but equally important are other contractual terms that reflect the commercial agreement. Ultimately, the contract should answer the fundamental question of “What are you buying?” The product itself is not the only feature being purchased. A customer is also buying certainty, service performance, risk mitigation, flexibility, security, compliance, and other similar “intangible” items of value.
“With little to no revenue at many locations, retail debtors have found it difficult during the COVID-19 pandemic to comply with Bankruptcy Code Section 365(d)(3)’s requirement that a debtor timely perform post-petition lease obligations while it decides whether to assume or reject a lease. However, given the pandemic’s lasting impact, and related governmental orders that have affected operations, revenues, and the ability to pay rent, retail debtors have considered legal strategies for obtaining, over the objections of landlords, extensions of the initial 60-day rent suspension already afforded by Section 365(d)(3). While a few retail debtors have been successful, one was not in In re CEC Entertainment.”
To read the full article written by colleagues Patrick J. Potter, Patrick E. Fitzmaurice, Brian L. Beckerman, and Kwame O. Akuffo click here.
Source: Journal of Bankruptcy Law
This is a brief review of some of the significant environmental (and administrative law decisions) released the past few weeks.
THE U.S. SUPREME COURT
On April 22, 2021, the Court decided two important administrative law cases: Carr, et al. v. Saul and AMG Capital Management v. Federal Trade Commission.
Late last week a federal district court judge for the District of Columbia held that the nationwide eviction moratorium issued by the Centers for Disease Control and Prevention (CDC) went beyond the agency’s statutory authority and vacated it nationwide. This decision effectively expanded a similar decision by a Texas federal court last month that found the CDC’s moratorium was an improper use of federal power but limited its decision to the litigants to that case and declined to vacate the CDC order.
In episode # 30 of Industry Insights podcast, Christian Salaman returns to join host Joel Simon to provide insights on the current recovery of the hospitality industry, the latest trends for owners and managers and the impact across other asset classes like senior residences and student housing.
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The Real Estate and Construction industry may be huge, but ultimately, as with all industries, it comes down to the people who help make it all come together. From time to time, we like to profile some of those people.
Nik Bandak is the president of Bandak Project Management, a company he started in June of 2020 after a good deal of external pressure from friends, clients and his network. Nik’s career path began not long after graduating from Saint Mary’s College of California in 2008 with a degree in financial services. Nik worked in the Bay Area as a laborer, carpenter, project manager and then estimator with a concrete subcontractor. Realizing he wanted international experience, Nik moved to the United Arab Emirates to work for Bechtel on the Khalifa Port and Industrial Zone. After getting engaged, Nik and his future wife, Kelly, decided to move back to Southern California where he was hired in the Construction Management division of a small San Diego-based commercial real estate firm. Nik, Kelly and their twin sons currently live in Southern California.
In “Uniwest And Virginia’s Anti-Indemnification Statute: The Trap For The Unwary Should Be Closed” in the pages of Virginia Lawyer, colleague Jamie Bobotek recently examined why it is time for Virginia’s General Assembly to correct the uncertainty created by its anti-indemnification statute’s ambiguous language.
Environmental Justice, as an urgent priority of the Federal Government, dates back to 1994, and President Clinton’s issuance of Executive Order 12898. This order directed federal agencies to identify and address, as appropriate, the disproportionately high and adverse human health and environment effects of its many programs, policies and procedures on minority populations and low-income populations. The primary legal basis for this order was Title VI of the Civil Rights Act of 1964, in particular, Sections 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance. Over the years, the Supreme Court has reviewed the scope and importance of Title VI. In Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, as written, Section 601 only prohibits intentional discrimination. Noting that disproportionate impact is not the sole touchstone of invidious racial discrimination. Moreover, the Court also ruled in Sandoval that private parties cannot sue to enforce regulations implementing Section 602. Perhaps as an acknowledgement of these shortcomings, the Environmental Protection Agency (EPA) has established an administrative system to process environmental justice complaints at 40 CFR Part 7. Without strengthening the statutory base of environmental justice, the program may continue to be the subject of countless symposiums and seminars. However, this may change soon.
