Morgan Gilhuly Spoke At CLE Webinar: Environmental Indemnity in Real Estate Transactions
By R. Morgan Gilhuly
August 25, 2016
Barg Coffin Partner R. Morgan Gilhuly participated in a panel discussion during a Strafford live CLE webinar on Thursday, September 8, 2016 from 10am-11:30am Pacific, entitled:
Environmental Indemnity in Real Estate Transactions: Allocating Risks of Potential Cleanup Costs: Negotiating Key Provisions, Drafting and Reviewing the Agreement to Ensure Complete Coverage
This live, 90-minute CLE webinar (with interactive Q&A) provided guidance to counsel for buyers, sellers and lenders in real estate transactions on structuring environmental indemnity agreements to ensure coverage for environmental liabilities. The panel examined key provisions and lessons from recent court treatment of such agreements.
The risk allocation of environmental liabilities in real estate transactions is often essential to the terms of the business deal. Numerous decisions are involved when negotiating and structuring an environmental indemnity agreement. Even though indemnity provisions are some of the most common tools for allocation of risk, they also may present many unforeseen pitfalls.
The First Circuit Court of Appeals’ November 2013, decision in VFC Partners 26 v. Cadlerocks Centennial Drive is a recent example of a line of decisions demonstrating that the specific language in environmental indemnity agreements is critical in real estate transactions. Under these rulings, the specific language of the environmental indemnity provision—and not general concepts of indemnity—controls and determines whether particular costs or damages will be subject to indemnity.
Counsel to buyers, sellers and lenders in real estate and other commercial transactions must carefully consider negotiation strategy options and how to memorialize indemnity provisions to ensure coverage for potential environmental liabilities and cleanup costs (or in some cases to exclude coverage).
Listen as our authoritative panel discusses environmental indemnity agreements in transactions, including how the courts are treating these agreements, and will examine the key provisions that must be addressed. The panel will offer best practices for negotiating and structuring the agreement and how to address the potential for litigation post-closing as a result of challenges to indemnity claims.
I. Environmental indemnity agreements and court treatment
II. Key provisions
III. Negotiating and structuring the agreement
The panel reviewed these and other key issues:
• When is an environmental indemnity agreement necessary and when is it not useful?
• What are the key provisions of the environmental indemnity agreement?
• How do environmental indemnity provisions complement other provisions in real estate purchase and sale agreements?
• What are the critical lessons from recent court decisions for structuring environmental indemnity agreements?
• What are the best practices for allocating environmental risks in real property transactions?
For more information and to register, click here.
R. Morgan Gilhuly, Partner, Barg Coffin Lewis & Trapp, San Francisco
Mr. Gilhuly specializes in environmental litigation and counseling. He has represented defendants in major environmental litigation regarding a release of chemicals at an oil refinery, an EPA cost recovery action regarding a mercury mine, PCE contamination, and at various Superfund sites. Mr. Gilhuly also has extensive experience in Polanco Act litigation and with brownfields redevelopment.
Cindy J. Karlson, Founder, Law Offices of Cindy J. Karlson, East Hampton, Conn.
Ms. Karlson focuses on environmental and land use law, including compliance counseling, transactional work, administrative matters and litigation. Her work involves pre-transaction counseling and structuring of deals, developing risk management strategies, negotiating contractual language on environmental risk and allocation of liability for known and unknown conditions, and environmental due diligence.
Peggy Otum, Partner, Arnold & Porter, San Francisco
Ms. Otum's practice focuses on complex environmental litigation and regulatory compliance counseling, with particular focus on RCRA; the Clean Air Act; and CERCLA. She advises clients in investigations, litigation, and other enforcement actions. She also advises on environmental auditing and environmental aspects of corporate transactions, including identifying and evaluating potential environmental liabilities associated with manufacturing facilities, negotiating, and drafting environmental provisions in corporate agreements.