Good Faith

News & Analysis as of

“Totality of the Circumstances” Standard Used to Sanction Mortgagee for Lack of “Good Faith” Negotiation in Foreclosure Matter

New York’s Appellate Division, Second Department, recently ruled that a mortgagee’s conduct in evaluating a borrower’s loan modification application should be judged using the “totality of the circumstances” standard to...more

Be Global - September 2014 (Global Labor & Employment)

Highlights: Australia: No implied term of mutual trust and confidence in Australian employment contracts - In a welcome development for employers, the High Court of Australia has handed down a landmark decision that...more

Leap of Bad Faith: TPAs May Be Sued for Aiding Their Own Actions

Insurers have a duty to process claims in good faith, but sometimes they farm the job out to third-party administrators (TPAs). If the TPA fouls up, many states hold that the insurer is still liable—for its own breach of...more

The Fifth Circuit Narrowly Construes "Good Faith" In The Context Of Lending To A Debtor

Debtor-in-possession financing ("DIP financing") is a critical issue that comes up at the beginning of most large to mid-sized bankruptcy cases. Companies filing bankruptcy are typically doomed to a rapid liquidation if they...more

Court Grants in Part and Denies in Part DB Structured Products’ Motion to Dismiss Trustee Repurchase Action

On August 28, Justice Marcy S. Friedman of the Supreme Court of the State of New York granted in part and denied in part DB Structured Products, Inc.’s motion to dismiss repurchase claims brought by HSBC, as Trustee for the...more

Message: Good Faith is Not Care

When an insurer issues a policy, it assumes a duty not only to investigate and pay claims, but to do so in good faith. There is, however, a difference between that duty and the duty of due care that arises under tort law. ...more

Ontario Court Considers Content of Implied Duty of Good Faith in Business Negotiations

In a recent motion seeking an interlocutory injunction to restrain the sale of a business, Justice Wilton-Siegel considered the content of an implied duty of good faith. In SCM Insurance Services Inc. v. Medisys Corporate...more

A Lesson on the ADA: Engaging in Good Faith in the Interactive Process is Essential

Understanding the mandates of the Americans with Disabilities Act and similar state and local laws is easy: employers cannot discriminate against individuals with disabilities. However, navigating the reasonable accommodation...more

Georgia Supreme Court Applies the Business Judgment Rule to Bank Officers and Directors; Decision Has Implications for Corporate...

In a landmark ruling for officers and directors of Georgia’s financial institutions, the Supreme Court of Georgia held in FDIC v. Loudermilk, S14Q0454 (Ga. July 11, 2014), that officers and directors of banks are protected by...more

The Ropes Recap: Mergers & Acquisition Law News - Second Quarter 2014

In this issue: -Delaware Legislative Update -Delaware Supreme Court Upholds Facial Validity of Fee-Shifting Provisions in Bylaws of Delaware Non-Stock Corporation -News from the Courts: -Court...more

The Duty Of Candor: Letting The Truth Shine

“Three things cannot hide for long: the Moon, the Sun, and the Truth.” The Patent Trial and Appeal Board (“PTAB”) relies on the truth coming to light to resolve disputes in post-grant proceedings in a “just, speedy, and...more

English Contract Law: Has the Camel’s Nose of “Good Faith” Crept Under the Tent Flap?

Under the English Arbitration Act 1996 the grounds on which an English arbitration award can be challenged in court are very limited. Section 67 of the Act provides that a challenge may be brought on the basis that the...more

Georgia Supreme Court Affirms Business Judgment Rule

The Georgia Supreme Court has, for the first time, affirmed the existence of the business judgment rule in Georgia common law. More specifically, however, the state Supreme Court held that the business judgment rule does not...more

Take Off Every Zig: The Risk in Tesla’s “All Our Patent Are Belong to You” Message

With a title parodying a classic Internet meme, Elon Musk announced on June 12, 2014, that “Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.” Musk plans to continue...more

Could Offensive Trademarks Find Refuge in Common Law?

The 177-page tome the Trademark Trial and Appeal Board (TTAB) just issued in Blackhorse v. Pro-Football Inc. is remarkable for its length and its subject matter, cancellation of the controversial REDSKINS mark as disparaging...more

Court of Appeals of the State of Washington: Bad Faith Damages May Exceed the Amount of a Reasonable Covenant Judgment

Miller v. Kenny, No. 68594-5-I, 2014 WL 1672946 (Wash. Ct. App. Apr. 28, 2014) - The Court of Appeals of the State of Washington held that a reasonable covenant judgment, consisting of the total liability of the...more

Letter of Intent: Gateway to a Deal

Your time is valuable. So is the business that you are thinking about selling or the business you intend to acquire. You may also be thinking that before running up professional advisor costs, your business folks should...more

50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 32: Understanding Retaliation Claims Under...

One of the plaintiffs’ bar’s perennial favorite claims is the amorphous and, hence, ubiquitous retaliation claim. Over the years, the law under Title VII has made these claims more difficult for plaintiffs to bring. At the...more

Tesla Patent Pledge….Too Good to be True?

On Thursday June 12, Elon Musk, CEO of Tesla Moters, posted a blog post that said “…Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.” At first glance, a good thing. It...more

Good Faith And Employee Communications: Landmark ruling in IBM UK Holdings Ltd and IBM UK Ltd v Dalgleish and others

Employers undertaking pension scheme benefit change processes need to give careful consideration not only to the detail of member communications, but also to the overall impression they give and to member expectations which...more

Ruling Explains and Extends Application of Good Faith Defense to Fraudulent Transfer Actions in SIPA Context

In an April 27, 2014 decision in the Madoff cases, Judge Jed S. Rakoff ruled that the standard of good faith should be considered differently in a Securities Investor Protection Act (SIPA) liquidation. To defeat a good faith...more

Inside M&A - Summer 2014

“Commercially Reasonable Efforts” Diligence Obligations in Life Science M&A" - More than 80 percent of all deals in the pharmaceutical, medical device and biotech industries include an earnout structure that provides...more

50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 11: Workplace Investigations and the Good...

Allegations of employee misconduct – particularly as they relate to claims of discrimination and harassment – have been raised in the workplace ever since the Civil Rights Act was passed. But human resource executives were...more

IRS Notice 2014-33 – IRS Grants Relief for Good-Faith Efforts Under FATCA

On May 2, 2014, the Internal Revenue Service (“IRS”) issued Notice 2014-33 (the “Notice”) providing that calendar years 2014 and 2015 will be regarded as a transition period for purposes of IRS enforcement and administration...more

District Court: Notification of IPRs Necessary to Comply with Duty of Candor and Good Faith

On May 2, 2014, Judge Davis of the Eastern District of Virginia determined that counsel in a pending patent litigation “failed to comply with their general duty of candor and good faith to this Court” by not disclosing the...more

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