I am proud to say that I have begun an active group blog on the environmental networking site commonground - entitled, “Environmental Risk Trends Group.” Commonground has over 5,000 environmental professionals from across the country contributing information every day regarding environmental issues and solutions to complex problems.

The Environmental Risk Trends Group will contain updates on the latest environmental trends across the country (and of course Massachusetts).  Open discussion is encouraged and various environmental professionals have already joined the group including: insurance companies, property developer/manager, environmental non-profits, environmental consultants and others.

Please visit the site and join the discussions!

Ed

Securitization law and the secondary market is complex array of law, securities, finance, lending, and primarily OPINIONS!  I have a LL.M. in Banking & Financial law and took an advanced class in securitization.  I have read, studied, published articles, presented at national conferences and to senior level “securitization players” including Sr. Managers from Fitch Ratings regarding risk in commercial mortgage backed securities.   From day one it became innately clear to me that after all the rating models, stress tests, quantified/qualified financial data - a ‘rating’ is just an opinion (and said as much in my published articles).   But who am I?

For the last 15 years when I conducted environmental (and financial) due diligence on CMBS loan originations and grappled with Rating Agencies over their hallowed opinions - I was continually rebuffed with a “take it of leave it” position from all 3 agencies (basically - how could I question their opinion?).   According to them, their ‘rating’ was not an opinion but rather just that, a rating.  Somehow it was not an opinion.   However, see the LaSalle National Bank v. Lehman Brothers Holding case 237 F.Supp.2d 618 (2001) - wherein rating agencies completely missed the environmental hazards associated with a $9MM loan - costing $11MM+ when the borrower defaulted and the property was found to be completely contaminated…

Ironically, now after a flurry of lawsuits including one filed by the Attorney General of CT - rating  agencies are claiming their ratings are in fact not only ’opinions’ but opinions that are so sacrosanct - that they are protected by the 1st Amendment!

As I have for 15+ years - when I conduct due diligence on loan originations - it is based upon education, experience and knowledge.  I have no problem acknowledging it is an opinion.  I also would not stand behind the 1st Amendment.  But again, who am I?

WSJ - foreclosures are ramping up (again).  Why is this new news?  Because banks that received TARP money or other Federal bailouts including Wells Fargo, Citigroup, J.P. Morgan, Fannie Mae - previously placed a voluntary moratorium on foreclosures are now enforcing them.  These banks are internally re-assessing which borrowers would qualify for loan modification; and those that don’t go into the foreclosure bin.   While the Treasury has provided assistance to homeowners and incentives to banks through acts like ”Making Homes Affordable” - the harsh reality is time is running down for previously “reprieved” homeowners… For such homeowners, quality legal assistance is necessary.

Why do the downtown firms charge $500.00 to yes - $1,000.00 per hour?  More importantly why are you paying that rate!?!  Are attorneys that good?  Or can they simply charge that fee because they can?!?

Helpful ways to avoid costly attorney fees: (1) Massachusetts Trial Court Libraries have free access to Westlaw and Lexis/Nexis and you can ask librarians to conduct a search without leaving your desktop - and NO you don’t have to be a lawyer to access them! (2) search the Internet! Free legal search sites are everywhere! 

As a solo practitioner, these free resources are extensive and very helpful to me.

After much thought and inquiring with numerous fellow insurance brokers, insurance companies and risk managers - I still don’t have the straight answer to the following question:  If I am a manufacturer of a product (in this case electronic product) and export it to Europe where they have certain eco-compliance laws, and that product is ‘non-compliant’ (because it contains a prohibited chemical), what is the insurable interest?  I feel that it is a ’compliance’ issue akin to SOX and flows up to the Directors & Officers (D&O insurance).  Others believe it is akin to Products Liability and Product Recall.   I welcome your thoughts.

Most my posts on environmental issues will involve corporate risk and liability.  However, given the nearing Chrismas and holiday season, I thought it would be appropriate to begin with the reality that in the year 2008 we still have toxic toys.  Healthytoys.org issued a recent press release indicating lead was found in 20% of the products tested.  Additional toxic chemicals include arsenic, cadmium, mercury, and bromine.  Toys included Hannah Montana jewelry (Makayla- my 5 year old daughter loves her …) and other low cost toy jewelry.  Guess its nothing but diamonds for Makayla …

• On a corporate level - those companies that manufacture or distribute electronic product (including toys) and export to the EU or Asia are subject to eco-compliance directives which prohibit 6 specific chemicals (lead, cadmium, mercury, hexavalent chromium, and fire retardant PBBs and PBDEs).  If a corporate is non-compliant, your product can be removed from the marketplace.  More to come on this topic …