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Contact:
Nina McCann
Director of Public Relations
Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP
516-248-1700
nmccann@ForchelliLaw.com
Partner Aaron Gershonowitz Publishes
Article in the Latest Issue of the New York Law Journal
NYLJ: “Babcock
and Wilcox: Drafting Environmental Agreements” 2/17/10
Uniondale, February 17, 2010 — Partner Aaron Gershonowitz
has published an article in the latest issue of the New
York Law Journal. The Outside Counsel article is titled, “Babcock
and Wilcox: Drafting Environmental Agreements.” In
summarizing one of the main points of the article, Gershonowitz
explains, “In addition to its analysis of environmental
issues, the decision provides some interesting drafting
lessons. For example, the contract contained what
may be a classic example of why writing teachers often
warn against the use of passive voice. The agreement
treated conditions “discovered after closing” differently
from conditions discovered before closing. Seller
received an environmental report before closing and did
not provide it to buyer until after closing. Buyer
took the position that it could not have accepted responsibility
for these conditions because it did not discover them until
after closing. Use of passive voice hides the subject
and the court noted that the agreement did not specify
who had to have discovered the conditions before closing. Thus,
buyer was responsible for conditions “discovered” by
seller prior to closing even though buyer did not become
aware of the conditions until after closing.”
He concluded
his analysis by stating, “Drafting agreements
that allocate future environmental risks can be difficult
both because of the amount of money that can be at stake
and because there is very little law on the subject. The
Babcock and Wilcox decision analyzes several of the issues
addressed in such negotiations and can be used as a primer
for how to draft such provisions. Among the lessons
learned are that an “as is” clause will not
release environmental claims on its own, but a broad “as
is” clause can be used to lead a court to interpret
unclear environmental provisions as a waiver of claims
by the buyer; terms that are not defined in the agreement
may be interpreted in accordance with their common meaning,
not in accordance with the specialized legal meaning that
may have been intended; an exclusive remedy clause can
defeat statutory and common law claims and a broad general
release can release CERCLA (the Comprehensive Environmental
Response, Compensation and Liability Act) claims.”
Aaron
Gershonowitz concentrates his practice in environmental
law and has represented clients in a wide variety of environmental
issues, including Superfund matters, RCRA compliance, asbestos
in buildings, and the environmental aspects of real estate
and corporate transactions. In addition, Mr. Gershonowitz’s
practice has included the representation of military contractors
with regard to closure of facilities, transfer of facilities,
and the related negotiations with the United States government
and local governmental agencies.
For more information, please
check out the latest issue of the New York Law Journal,
or visit on line at www.nylj.com.
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