Environmental

Schiff Hardin has a diverse and dynamic environmental law practice with Midwest origins and a national reach. We advise clients engaged in a variety of industries and commercial endeavors such as real estate development, site remediation, water treatment, electric generation, natural gas transportation and distribution, bio-fuels, chemical manufacturing, equipment manufacturing, and consumer goods manufacturing. Chambers USA consistently recognizes our Environmental Group as a premier practice in its annual rankings, and five of our lawyers have been named leading lawyers in Illinois by Chambers USA. Several of our lawyers also have been recognized by other publications including the Illinois Leading Lawyers Network, Illinois Super Lawyers, US News and World Report and Best Lawyers in America.

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Compliance Counseling

Schiff Hardin's Environmental Group has long been preeminent for its handling of complex waste, air and water issues under federal, state and local laws and regulations. Some of the ways in which we regularly assist clients with understanding and complying with these laws and regulations include:

Regulatory Compliance

  • Interpreting and assessing applicability of statutory and regulatory requirements
  • Determining waste characterization and disposal requirements
  • Evaluating reporting requirements and preparing necessary reports, including reporting exceedances, deviations and malfunctions

Permits and Permit Appeals

  • Obtaining Title V, federally enforceable state operating permit (FESOP), and state construction and operating permits for major, minor or area sources
  • Obtaining state construction and operating permits for pollution control devices
  • Obtaining NPDES permits
  • Seeking modifications  of permit conditions due to process, equipment or other facility changes
  • Obtaining regulatory flexibility in operating permits
  • Understanding and developing procedures for complying with permits

New Source Review

  • Performing emissions analyses
  • Evaluating applicability of exclusions
  • Fulfilling pre- and post-project recordkeeping and reporting obligations triggered by the "reasonable possibility" provisions of the regulations

Auditing and Internal Investigations

  • Developing goals, procedures and management reporting for internal audits
  • Developing protocols for operational, permit, and recordkeeping audits
  • Designing and conducting internal corporate investigations of alleged wrongdoing

Enforcement and Litigation

  • Responding to Notices of Violation
  • Responding to subpoenas and Requests for Information, including those pursuant to Section 114 of the CAA and 104(e) of CERCLA
  • Negotiating settlement agreements
  • Litigating enforcement matters in administrative or judicial proceedings

Rulemaking

  • Analyzing proposed rules
  • Preparing comments on behalf of a company or a group of companies
  • Petitioning for site-specific rules
  • Petitioning for variances

Modeling

  • Working with statistical, environmental and economic modelers to prepare data required by permits or useful for rulemakings, enforcement actions or other compliance purposes
  • Working with companies to protect confidentiality of information generated by business models

Conformity and NEPA

  • Advising on federal general and transportation conformity requirements
  • Advising on National Environmental Policy Act (NEPA) air quality issues

Waste-Specific Issues

  • Interpreting federal, state and local laws and regulations regarding hazardous and solid waste classifications 
  • Counseling  coal-fired power generators regarding state and federal regulatory requirements for coal ash disposal, ash pond operation and closure, and wastewater discharges from ash ponds


New Source Review

Schiff Hardin has significant, ongoing experience with the Clean Air Act's "New Source Review" (NSR) programs, including the federal Prevention of Significant Deterioration and Non-Attainment programs and the so-called "minor" NSR programs.

Clients benefit from our understanding of the applicability, implementation and enforcement aspects of these programs. Our wide range of in-depth experience includes:

  • Defending companies against NSR enforcement actions by federal and state agencies and citizen groups, including defense of enforcement actions filed in Missouri and Pennsylvania in 2011 and earlier filed enforcement actions in Illinois
  • Negotiating settlements of NSR enforcement actions, including an NSR consent decree filed in January, 2011
  • Training client's employees to recognize potential NSR compliance issues
  • Developing programs to implement the so-called 2002 "reform" rules, including emission analyses related to changes at existing facilities, and pre- and post-project recordkeeping and reporting obligations triggered by the "reasonable possibility" provision of the rules
  • Evaluating the applicability of exclusions
  • Obtaining construction permits for regulated new sources and "modifications" and advising on permit implementation and related requirements, including "Best Available Control Technology" and emission offset requirements, compliance testing and potential amendments to such permits
  • Assisting with responses to information requests and NOVs from regulatory agencies targeting potential "modification" activities at existing facilities
  • Assisting with NSR issues related to Title V operating permits, such as the implementation of consent decree conditions and the possible inclusion of NSR compliance schedules in such operating permits, including intervention in an appeal in the United States Court of Appeals for the Seventh Circuit to contest a claim that a company's Title V permits were required to contain compliance schedules for alleged NSR violations
  • Drafting corporate transaction documents involving existing facilities to effectively allocate NSR responsibilities, and counseling clients regarding NSR responsibilities under existing contracts


Enforcement and Litigation

Schiff Hardin's Environmental Group litigates disputes on behalf of its clients against both governmental and private entities. We represent clients in both civil and criminal matters, in administrative proceedings and at the trial and appellate levels of the state and federal courts. Examples of our experience include:

Enforcement

  • Representing clients in enforcement actions brought by federal, state or municipal authorities, or by citizen groups, involving air, water and solid and hazardous waste statutes and Superfund matters
  • Negotiating administrative consent orders with federal and state environmental agencies for the investigation of current and former manufacturing facilities, and for the subsequent removal or remedial actions to address releases at those facilities
  • Defending enforcement actions and investigations by the Environmental Protection Agency relating to nonattainment New Source Review and Prevention of Significant Deterioration permitting issues

Private Party Litigation

  • Prosecuting or defending cost recovery and contribution lawsuits involving disputes over responsibility for contamination of property
  • Litigating contractual or quasi-contractual claims related to indemnification for environmental liabilities, such as claims between current and former owners of real property or a company, lenders and borrows, and insurance companies and policy holders
  • Litigating state law claims for personal injury and property damage


Environmental and Toxic Tort Litigation

Environmental and Toxic Tort Litigation

Schiff Hardin lawyers represent clients in major environmental and toxic tort litigation throughout the United States. Working together across a broad range of practice areas, our experienced attorneys can quickly and efficiently assess matters, develop and manage cost-effective litigation approaches and execute appropriate strategies for clients confronting environmental or toxic tort exposure.

We represent clients against both government and private entities, in both civil and criminal matters, in administrative proceedings, and at the trial and appellate levels of the state and federal courts. We collaborate with our clients to budget, plan and execute strategies that are in harmony with their business objectives, and we use sophisticated accounting, database and case management tools to help them achieve their goals.

Substantive Environmental Knowledge

Our environmental attorneys possess exceptional substantive knowledge of environmental law. We have handled cases for clients under all of the major federal and state environmental acts:

Trial Experience

Experienced attorneys

Schiff Hardin has many skilled and experienced trial lawyers who handle a wide range of problems across the country. Because plaintiffs choose the forum, our clients need lawyers who can try cases in the most difficult forums and under the most difficult circumstances.

The depth of our trial experience always gives our clients a full range of viable strategies.

Environmental, Scientific and
Medical Experts

Scientific evidence and expert testimony are often critical to the successful resolution of a toxic tort or environmental matter. Our lawyers have strong working relationships with nationally recognized scientific and medical experts, and we also have an exceptional track record when attacking opponents' experts in Daubert, Frye and other proceedings to exclude scientifically unreliable expert testimony.

Class Action Experience

Class action matters
Our class action litigation practice spans the country

Many of our attorneys concentrate their practice in defending class actions and other complex, multi-party litigation filed in state and federal courts throughout the country. Our experience includes successful removal to federal courts, obtaining dismissals through motion practice, extended class certification hearings, trial, and negotiating and administering class settlements.

Energy Company Representation

Schiff Hardin's energy litigation practice often focuses on environmental and toxic tort disputes. We represent energy companies in state and federal courts and in arbitration and mediation proceedings around the country, and before federal and state regulatory commissions. We served as lead trial counsel in the second trial of the EPA's New Source Review enforcement actions against power generators, and we have represented energy companies in water and soil contamination cases, as well as personal injury asbestos actions.

Multi-District Litigation and Consolidated Proceedings

Environmental and toxic tort litigation often occurs within the context of federal multi-district litigation (MDL) or its state-law equivalent. We understand that the question of whether to seek or oppose MDL or consolidation is critically important, and we guide our clients to pursue the option that is most likely to lead to success.


Superfund Experience

The federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), commonly known as Superfund, and its state law equivalents create potential liability for investigation and remediation costs, and damages to natural resources.  Schiff Hardin's Environmental Group regularly assists companies in assessing their liability and evaluating settlement or litigation options.

We assist clients in:

  • Investigating and evaluating the evidentiary basis of the CERCLA claim
  • Negotiating the settlement document 
  • Strategic planning for remedial investigations, including timely use of risk reduction evaluations
  • Advocating for cost-effective, and sometimes innovative, remedies that reduce risk
  • Identifying and interpreting applicable or relevant and appropriate requirements (ARARs)
  • Forming and working within a joint defense group
  • Developing community relation plans designed to foster good communication with regulators, civic leaders, community groups and other stakeholders
  • CERCLA litigation, including defending clients in cost recovery and contribution actions and asserting such claims against other potentially responsible parties

Over the years, we have represented manufacturers, utilities, and mining, chemical and pharmaceutical companies at Superfund Sites across the United States. We also have represented banks and finance companies regarding CERCLA liabilities. We have advised on lender liability questions, including the applicability of the secured creditor exemption. We also defended a bank trust department in a case seeking to impose CERCLA liability on the corporate trustee/fiduciary.

Some other significant CERCLA capabilities include the following:

Sediment Sites

Contaminated sediment sites have earned increased attention in recent years.  Sediment sites often present more complex technical and legal challenges than the more "traditional" Superfund sites.  We have significant experience counseling clients with alleged liability at a variety of sediments sites, from the remediation of a small section of contaminated sediments in a creek bed, to participation at some of the largest and potentially most expensive sediment sites in the country.

Common Counsel Representation in Superfund Matters

Common counsel representation frequently involves years of close involvement with myriad aspects of a site. Defining common counsel's role and helping clients achieve their goals require skills that cross many legal disciplines, skills that we have demonstrated for more than 20 years at numerous sites across the country.

Fiduciary and Trustee Representation

When a demand for Superfund contribution is made against a fiduciary or trustee, unique statutory rights and case law are implicated. We are well-versed in the issues that arise in such cases, and have experience representing fiduciaries and trustees in contribution litigation under Superfund.


Voluntary Remediation

Schiff Hardin's Environmental Group has extensive experience assisting clients with voluntary remediation projects, including Brownfields redevelopments, of former industrial, commercial, transportation and utility facilities throughout the United States. Whether engaged at an early stage of a remediation or redevelopment project, or after a project had stalled by regulatory or community concerns, we have helped clients accomplish their project objectives. We assist clients by:

  • Evaluating remedial strategies
  • Negotiating investigation and remedial plans
  • Drafting access agreements and restrictive covenants
  • Devising and implementing community relations plans

Former Industrial Facilities and Manufactured Gas Plants

We have assisted clients with the de-commissioning, closure and sale of their manufacturing plants throughout the United States. For instance, we have assisted gas utilities with projects involving former manufactured gas plants (MGPs) in nearly a dozen states. Evaluating who is responsible for an MGP site can involve a particularly complex historical analysis. Many MGP sites are located in the middle of residential neighborhoods, adding complexity to the investigation and remediation strategies and heightening the importance of an effective community relations plan. A project that does not run smoothly or for which a community relations plan falls flat can bring much unwanted public scrutiny and criticism. With our knowledge of each stage of a remediation project, we assist our clients with completing projects that are sources of pride for our clients and their communities.

Developers and Brownfields

We have represented a number of Midwest developers in rehabilitating and returning to productive use environmentally-challenged real estate. This includes numerous mixed use real estate development projects ranging in size from very small to dozens of acres. Many projects have been built on property formerly used by industry or transportation companies.  A variety of our projects have included a public component, such as providing housing for low-income families, which involves an added layer of regulatory oversight. From our first review of Phase I environmental assessments through negotiating contracts for purchase with environmental risk shifting clauses, to obtaining no further remediation letters, the Environmental Group is involved in the development of new communities.


Due Diligence and Transactional Support

Schiff Hardin's Environmental Group has substantial experience in sophisticated real estate and asset acquisition, disposition and financing transactions, including:

  • Efficiently and effectively performing large scale environmental due diligence for asset acquisitions throughout the country
  • Defining the scope of investigations and managing the collection and analysis of reports and other documentation to identify and quantify environmental risks and liabilities
  • Interpreting data to assist the client in decision-making
  • Creatively structuring transactions to allocate and manage environmental risks and liabilities during acquisition and disposition of assets
  • Effectively responding to and working with co-investors or lenders on environmental issues affecting the transaction
  • Managing routine and emergency course-of-business environmental liabilities

Asset and Real Estate Acquisitions and Divestitures

Schiff Hardin attorneys routinely provide support to clients in a variety of industries in their acquisition and disposition of companies ranging in value from $10 million to more than $1 billion.

We have helped our clients in their acquisitions of the following types of companies:

  • A demand labeling business
  • A tool company
  • An industry-leading commercial tank and pump rental equipment company
  • One of the largest national remediation services contractors
  • One of the largest residential and commercial asphalt and grading contractor and its various office, industrial and mining properties
  • Two leading regional boat manufacturing companies
  • A substantial food products manufacturer
  • An international truck parts manufacturer

Financing Transactions

We assist in the assessment of environmental and regulatory risks affecting financing transactions. Successfully structuring senior and subordinated debt or negotiating mezzanine financing requires proper identification and quantification of the potential risks associated with environmental liabilities. We identify not only the obvious risks posed by on-site contamination, but also risks associated with regulatory changes, compliance issues and management practices.

The Environmental Group assists Schiff Hardin transactional teams in financings of various assets such as:

  • Power plants
  • Office buildings
  • Hospitals
  • Manufacturing facilities
  • Food processing facilities
  • Airports


State and Federal Administrative Proceedings

Development of Regulations

Schiff Hardin environmental attorneys assiduously follow the development of state and federal regulations affecting our clients, and have been intimately involved in the development of various federal and state rules.

The firm's experience with the Illinois environmental rules dates back to when the first rules were proposed in the early 1970s. A number of our environmental attorneys worked at the Illinois Environmental Protection Agency (IEPA) or the Illinois Pollution Control Board (IPCB) before continuing their careers at Schiff Hardin, giving them deep and well-rounded experience in the development of Illinois regulations. Recently, we have represented clients in the development of the Illinois Clean Air Interstate Rule (CAIR), the Illinois Mercury Rule and multi-pollutant standards, the Illinois BART rule and rules establishing reasonably available control technology (RACT) limitations for nitrogen oxides (NOx) for several industrial sectors. We have also assisted clients with rulemakings in other states, including the Indiana CAIR and mercury emission rulemakings. Our experience includes development of in-depth comments and examination of witnesses at rulemaking hearings.

We have been in involved in federal environmental rulemakings as well. We have  participated in challenges to federal rules on behalf of clients, including the appeal of the federal CAIR. We also help our clients develop comments on federal proposals, including recently the Greenhouse Gas Tailoring Rule, Coal Combustion Residue Rule and the Transport Rule.

Relief from Regulations

Schiff Hardin assisted a power company
in securing from the Illinois Pollution Control Board an order modifying the thermal limits applicable to its cooling water discharge at one of its power stations.

The Illinois Environmental Protection Act provides various forms of relief from Illinois regulations on temporary, long-term and permanent bases. Our environmental lawyers have obtained relief for clients through all of these mechanisms. Having a comprehensive knowledge of Illinois regulatory issues, Schiff Hardin's Environmental Group can assess a client's needs and provide guidance as to the appropriate form of regulatory relief.

Site-Specific Rulemakings

Among our site-specific work, we have recently worked closely with a client and technical experts to draft a rulemaking proposal adding a new section to the solid waste disposal regulations for the site-specific closure of an ash pond that has reached its life expectancy. With no existing Illinois regulations applicable to the closure of such surface impoundments, our team drafted language from scratch, carefully considering the client's needs, site-specific conditions, and the protection of human health and the environment. The proposal is now a joint proposal supported by IEPA's legal and technical teams, and has been adopted for first notice publication in the Illinois Register. It is being used as a protocol for other surface impoundment closures in the state.

Variances

We have helped clients obtain variances, which are temporary relief mechanisms provided through the Illinois Pollution Control  Board. A recent example of our variance work includes obtaining for a client a variance from requirements of the Illinois mercury rule (35 Ill.Adm.Code Part 225).

Provisional Variances

We have also worked with clients and their technical teams to gather data and prepare the adequate support for requesting provisional variances in emergency or unforeseen circumstances. A provisional variance is short-term relief negotiated with IEPA and approved by the IPCB. Our attorneys have negotiated a variety of provisional variances including temporary relief from the following: thermal discharge limits, adjusted boron standards and the Illinois Mercury Rule (while sorbents were tested to evaluate their effectiveness).

Adjusted Standards

Adjusted standards are orders the IPCB issues to provide a petitioner with its own permanent alternative to an otherwise applicable environmental regulation.  Examples of the work we have performed recently include obtaining an adjusted standard from Stage II vapor recovery fueling requirements; obtaining an adjusted standard from the boron standard, and obtaining an alternative schedule under the Multi-Pollutant Standard (MPS) of the Illinois Mercury Rule.

Landfill Siting

Schiff Hardin advises clients on all aspects of landfill siting, with a solid understanding of the siting processes and procedures in Illinois, as well as the appeal process. Our environmental attorneys have aided a local siting authority through the very prescriptive Illinois landfill siting process, advising on procedures and substance and working with technical experts to help create a record for use in possible appeals. We have also provided representation on appeal before the IPCB.

Permit Issuance and Appeals

We have extensive experience with helping our clients to obtain permits in Illinois and other states. For instance, we have helped our clients to obtain NPDES, PSD, Title V and state operating and construction permits.

Our group also has significant experience prosecuting and defending against challenges to issued permits. We have appealed numerous Title V operating permits, National Pollutant Discharge Elimination System (NPDES) permits and state construction permits. For instance, under Title V, third parties may petition the United States Environmental Protection Agency (USEPA) to object to the issuance of a Title V permit or to conditions contained in a Title V permit. Our attorneys have successfully defended, in the Seventh Circuit Court of Appeals, a challenge to USEPA's denial of a petition to object to permits issued to our clients. We have also defended against challenges to our clients permits, including Prevention of Significant Deterioration (PSD) permits issued by IEPA and appealed by third parties before the federal Environmental Appeals Board.


Environmental Management and Audits

The capture of accurate and timely performance data is critical to environmental compliance, reporting and certification.  A well-crafted audit program ensures that the data is captured properly for the intended purpose. In addition, an effective audit program can discover more serious problems in facility operations, allowing the company to self-report and receive the penalty leniency provided to self-reporters.

Compliance Audits

A compliance audit can be performed by dedicated in-house staff, operations staff or by outside vendors. The purpose is established by the company to meet the company's business objectives. It may be a voluntary audit or one required by rule or permit.  Our lawyers can assist you with:

  • Assessing the value of an audit program
  • Establishing goals for the audit program
  • Structuring the audit to meet goals while preserving available privileges
  • Reviewing audit findings
  • Developing plans to address systemic non-compliance
  • Advising how to report non-compliance

Environmental Management Systems

Schiff Hardin can assist in developing an environmental management system that will capture information necessary for public disclosure, including SEC disclosure or for ISO certification programs.

Internal Investigations

From time to time, a company may face allegations of wrongdoing presented by company personnel or third parties.  Other times, companies may discover irregularities suggesting possible wrongdoing by one or more corporate actors or agents.  Schiff Hardin has assisted clients in addressing such matters on behalf of companies.  We have counseled officers and board committees with the design and implementation of the internal corporate investigation.  We are sensitive to personnel, criminal, public disclosure and privilege issues, in addition to the environmental obligations that may be implicated by the facts.


Sustainable Energy and Climate Change Services

One of today's biggest business challenges is anticipating and addressing the legal issues raised by the new and rapidly evolving regulatory structures developing in the United States in response to climate change. Continuing economic prosperity depends on reliable and affordable energy resources like petroleum and coal, yet scientists tell us that "fixing" climate change depends on reducing and restructuring our use of these energy resources. How can businesses do both?

Industry Challenges

Traditionally, the steps necessary to start a new production process have included obtaining environmental permits and preventing pollution. Planning for and obtaining energy supply contracts, while necessary, has not been the determining factor in deciding whether to manufacture a new product or build a new facility. In today's market, energy is quickly becoming a driving force in decision-making.

Current and expected legislation and regulations are forcing business to focus on the technologies of production and transportation as never before. Limits on carbon emissions may restrict businesses in ways never before imagined, introduce new levels of complexity and involve businesses previously assumed to have little or no environmental impact. The industry sectors facing these new challenges include the traditional ones — energy, transportation, manufacturing, building and construction — and the not so traditional ones — retail, insurance, government, banking and finance.

Industry Opportunities

At the same time, new climate change regulations are producing new markets and new opportunities. New markets, including renewable energy, carbon trading and clean energy technologies ("clean tech"), are creating new earnings opportunities for businesses which demand new ways of thinking. A new regulatory emphasis on energy efficiency and demand response measures is producing opportunities for both energy savings and cost reductions.

Schiff Hardin Can Help

Responding to Climate ChangeSchiff Hardin can help you navigate this brave new world. We have played a role in the development, interpretation and implementation of all major energy and environmental legislation for more than 30 years. We understand complex emission rate standards and new permitting regimes. We have extensive experience in interpreting new environmental regulations and translating them into everyday business practices. When necessary, we challenge regulatory ambiguities and overreaching in court. We routinely work with power producers to help control energy project costs, and have the strong grounding and hands-on experience needed to assist clients with all aspects of large renewable and alternative energy projects.

Schiff Hardin attorneys employ proven strategies to team with our clients in identifying how climate change-related regulatory, legislative and litigation developments can and will affect their business. We help them develop strategies to address the challenges and opportunities presented. Working as a team across a wide array of practice areas, we assist our clients to implement applicable requirements expeditiously and efficiently and to capitalize on new market opportunities.

Our Sustainable Energy and Climate Change Services include:


Product Regulatory Team

Schiff Hardin's multidisciplinary product regulatory team has extensive experience in the domestic and international regulation of consumer and industrial products.  We counsel clients on the requirements affecting all stages of a product's life cycle, including design, manufacturing, packaging, importing, exporting, distribution, sale, transportation, disposal and recycling.

Our team provides both regulatory compliance counseling and defense of enforcement actions in the following areas:

We work with our clients to develop and implement practical compliance programs that take into account their unique business and operational needs.

We identify key developments and emerging trends that affect businesses operating in any capacity in the stream of commerce.

We counsel clients that conduct business in multiple jurisdictions, including those engaged in international commerce.

Our clients rely upon our knowledge of the regulations affecting an extensive range of products and substances, including by way of example those described below.

Our clients rely on us to guide them through the maze of local, state and federal requirements, such as the Emergency Planning Community Right to Know Act, the Toxic Substance Control Act, the Occupational Safety and Health Act, the Resource Conservation Recovery Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Mercury-Containing and Rechargeable Battery Act, the Clean Air Act, the California Air Resources Board Regulations and California Proposition 65. 

Drawing upon the experience of foreign co-counsel, we advise our U.S.-based clients on a variety of international initiatives, such as the European Union's Restriction of Hazardous Substances Directive (RoHS), Waste Electrical and Electronic Equipment Directive (WEEE), New Approach Directive, and Battery Directive, as well as the European Union's Registration, Evaluation, Authorization and Restriction of Chemicals Regulation (REACH), the Canadian Hazardous Products Act, and the Canadian product stewardship laws.

We work closely with Schiff Hardin's Consumer Product Safety Team, which provides advice and assistance to clients with respect to product recalls and other product safety matters, including compliance with the Federal Consumer Product Safety Act and its regulations.


Distressed Real Estate

In addition to problems caused by the economy and the real estate and financial markets, ownership and development of real estate today has its own unique problems that may restrain transactions and reduce value.

Schiff Hardin's attorneys provide the kind of smart, innovative and multi-disciplined legal counsel required to solve these problems encountered by our clients.

Lending

Our lawyers have represented banks and other lenders in mortgage foreclosure proceedings or exercising a power of sale in connection with term and construction loans. In some cases the loans have involved multiple facilities owned by affiliated borrowers, cross-collateralization of all loans, and adding portfolio-wide covenants.

We have also represented investors in purchasing distressed mortgage debt in transactions that included the negotiation of loan restructure with the debtor, either before or after acquisition of the debt, and financing the purchase of the debt through loans secured by collateral assignment of the mortgage debt.

Restructuring and Workouts

We have represented various lenders and owners in workouts of loan transactions involving condominium and cooperative properties, office properties, industrial properties, retail properties from malls to single stores, and hotel properties, including preparation and negotiation of default letters, forbearance agreements, workout agreements and standstill agreements. These transactions have included cash flow notes, current pay and accrual notes, equity kicker/appreciation interest notes and combinations of such matters. In addition, we have prepared and negotiated deed-in-lieu of foreclosure agreements and, where circumstances dictate, "friendly" foreclosure agreements.

Bankruptcies

When bankruptcy cannot be avoided, our attorneys are ready to handle many different contingencies. We have represented a variety of clients in these proceedings, from commercial lenders to ad hoc lien holder committees. When necessary, we have investigated and prosecuted fraudulent transfer claims, and defended lenders against lender liability claims as well.

Construction and Environmental Issues

Troubled real estate development projects often have a myriad of construction law and environmental issues. We have construction and environmental practices recognized by the leading peer review services as outstanding. Our attorneys have resolved problems that troubled projects have with state and federal regulators, zoning and redevelopment issues, as well as defective design and construction claims, and insurance claims arising out of failed projects. Our attorneys have helped clients gain compliance with newly applicable "green" requirements and compliance with ever changing water and air quality standards.

Other Typical Problems We Solve Include:

  • Negotiating or renegotiating financing with traditional and non-traditional lenders and equity investors
  • Renegotiating construction contracts, development agreements and ground leases
  • Remediating and allocating the expenses associated with design and construction defects
  • Avoiding the delays and other pitfalls of bankruptcy proceedings
  • Removing and settling mechanics' liens
  • Remediating environmental problems and allocating expenses among responsible parties
  • Evaluating various methods of procuring project design and construction, especially for completion of previously abandoned projects
  • Re-establishing construction schedules
  • Prosecuting and defending insurance claims
  • Assisting condominium associations with delinquent assessments and unit owner mortgages
  • Resolving disputes within real estate ownership organizations
  • Assisting in effective navigation of the tax and regulatory maze
  • Assessing the environmental condition of collateral and developing strategies for minimizing potential environmental liabilities
  • Advising in connection with evolving building codes and policies such as "green building," energy efficiency, or sustainable design/construction programs and protocols