2011 Commercial Law Developments

This is the full version of the 2011 Commercial Law Developments, as referred to in the Business Law Section's 2011 Annual Review.

February 23, 2012

  • Steven O. Weise, Proskauer Rose LLP, Los Angeles, California
  • Teresa Wilton Harmon, Sidley Austin LLP, Chicago, Illinois
  • Lynn A. Soukup, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC

We would like to express our deep appreciation to Stephen Sepinuck for his important contributions to these materials. We also miss our good friend Jeff Turner.

Table of Contents

I. Personal Property Secured Transactions

A. Scope of Article 9 and Existence of a Secured Transaction
1. General
2. Insurance
3. Licensing
4. Consignments
5. Real Property
6. Leasing
7. Sales
8. Intellectual Property
9. Tort Claims

B. Security Agreement and Attachment of Security Interest
1. Security Agreement
2. Rights in the Collateral
3. Restrictions on Transfer

C. Description or Indication of Collateral and the Secured Debt — Security Agreements and Financing Statements

D. Perfection
1. Certificates of Title
2. Control
3. Possession
4. Financing Statements: Debtor and Secured Party Name
5. Filing of Financing Statement — Manner and Location
6. Termination and Lapse of Financing Statement

E. Priority
1. Lien Creditors
2. Buyers
3. Statutory Liens; Forfeiture
4. Subordination and Subrogation
5. Equitable Claims
6. Set Off
7. Priority — Competing Security Interests
8. Purchase-Money Security Interests
9. Proceeds

F. Default and Foreclosure
1. Default
2. Repossession of Collateral
3. Notice of Foreclosure Sale
4. Commercial Reasonableness of Foreclosure Sale
5. Effect of Failure to Give Notice, Conduct Commercially Reasonable Foreclosure Sale, or Otherwise Comply with Part 6 of Article 9

G. Collection

H. Retention of Collateral

II. Real Property Secured Transactions

III. Guaranties

A. Existence and Formation

B. Scope

C. Discharge

IV. Fraudulent Transfers

V. Lender and Borrower Liability

A. Regulatory and Tort Claims – Good Faith, Fiduciary Duties, Interference With Prospective Economic Advantage, Libel, Invasion of Privacy

B. Obligations Under Corporate Laws

C. Borrower Liability

D. Disputes Among Creditors and Intercreditor Issuer

VI. U.C.C. – Sales and Personal Property Leasing

A. Scope
1. General
2. Software and Other Intangibles

B. Contract Formation and Modification; Statute of Frauds; “Battle of the Forms”; Contract Interpretation; Title Issues
1. General
2. Battle of the Forms

C. Warranties and Products Liability
1. Warranties
2. Limitation of Liability
3. “Economic Loss” Doctrine

D. Performance, Breach and Damages

E. Personal Property Leasing

VII. Commercial Paper and Electronic Funds Transfers

A. Negotiable Instruments and Holder in Due Course

B. Electronic Funds Transfer

VIII. Letters of Credit, Investment Securities, and Documents of Title

A. Letters of Credit

B. Investment Securities

IX. Contracts

A. Formation, Scope, and Meaning of Agreement

B. Adhesion Contracts, Unconscionable Agreements, Good Faith and Other Public Policy Limits, Interference with Contract

C. Choice of Law

D. Arbitration

X. Other Laws Affecting Commercial Transactions

A. Bankruptcy Code
1. Automatic Stay
2. Substantive Consolidation
3. Claims
4. Bankruptcy Estate
5. Secured Parties, Set Off, Leases
6. Avoidance Actions
7. Executory Contract
8. Plan
9. Other

B. Consumer Law

C. Professional Liability

D. Other