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Commercial Leasing Law & Strategy
‘Best Efforts’ Clauses In Commercial Leases
Gary M. Rosenberg, Alexander Lycoyannis and Michael A. Pensabene
Undefined terms of art such as “best efforts” are often utilized in commercial leases, but the interpretation of those terms and the enforceability of the clause, when left to the courts, will turn on how the lease is drafted.
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Accounting And Financial Planning For Law Firms
Improving Firm Profitability Through Contracts
J. Mark Santiago
The best and most effective way to drive firm profitability is through influencing partner behavior. The best way to incent the partners is by linking their compensation clearly and directly to the achievement of the firm’s business strategy.
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Commercial Leasing Law & Strategy
Severing a Master Lease Raises Thorny Issues
By Peter E. Fisch and Salvatore Gogliormella
A master lease structure is often used where a single landlord and a single tenant intend to lease multiple properties. By using a master lease structure to cover multiple properties as opposed to individual leases, the parties can streamline administration of a large-scale portfolio of properties. However, master lease severance comes with a series of complications.
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Commercial Leasing Law & Strategy
The Scrivener’s Error Doctrine In Commercial Lease Drafting
Efrem Z. Fischer
What are the limits of efforts to rescind or reform an agreement based upon a mistake? Can a mere “Scrivener’s Error” during drafting result in a wholesale extinguishing of a lease document?
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The Bankruptcy Strategist
District Court Provides Guidance on ‘Psychedelic Confusion’
John J. Rapisardi and Matthew Kremer
The U.S. District Court for the Southern District of New York recently provided critical guidance on what the court observed as the “psychedelic confusion” surrounding the intersection of Bankruptcy Code §365, governing the assumption and rejection of executory contracts, and Bankruptcy Code §503, governing administrative priority.
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New York Real Estate Law Reporter
Removing Restrictive Covenants
Stewart E. Sterk
In Rockwell v. Despart, the Third Department recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
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Commercial Leasing Law & Strategy
Removing Restrictive Covenants In New York
Stewart E. Sterk
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
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Commercial Leasing Law & Strategy
Applying ‘Part Performance’ In Practice
Adam Leitman Bailey and John M. Desiderio
The doctrine of part performance can overcome the strictures of the Statute of Frauds when parties enter into unwritten business deals, or into written business deals with unwritten ancillary terms and they do not contemplate all of the possible circumstances that might arise in the course of their dealings.
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Commercial Leasing Law & Strategy
COVID-19 and Lease Negotiations: Early Termination Provisions
Ann E. Ryan and Adrienne B. Koch
During the COVID-19 pandemic, some tenants were able to negotiate termination agreements with their landlords. But even though a landlord may agree to terminate a lease to regain control of a defaulting tenant’s space without costly and lengthy litigation, typically a defaulting tenant that otherwise has no contractual right to terminate its lease will be in a much weaker bargaining position with respect to the conditions for termination.
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The Intellectual Property Strategist
Impact of Disney’s Motion to Compel Arbitration In Scarlett Johansson’s Lawsuit Over ‘Day-and-Date’ Release of ‘Black Widow’
Stan Soocher
Johansson alleges that, in order to generate new subscribers for Disney+, Disney intentionally interfered with her talent agreement with Disney affiliate Marvel Studios for her featured role in Black Widow — and thus allegedly induced Marvel to breach a promise in the Johansson/Marvel agreement for the film to be initially distributed in exclusive “wide theatrical release.” Updated Oct. 1 to reflect a confidential settlement reached in the case.
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Commercial Leasing Law & Strategy
Force Majeure Clauses In Construction Contracts In the Aftermath of COVID-19
Jeffery R. Mullen and Fred Warren Jacoby
We are only beginning to scratch the surface of the effect on the construction litigation visited on us by COVID-19-related impacts. However, the pandemic and its continuing impact has reinforced the importance of planning for the unexpected — and undefined — when negotiating construction contracts.
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Commercial Leasing Law & Strategy
Fear of Unknown In Force Majeure Litigation Prompting Settlements
Charles Toutant
Since the pandemic began, lawyers have been using the coronavirus to justify nonpayment of rent, construction delays and even termination of labor contracts. But the prospect of litigating a contract cancellation based on force majeure is still so fraught with peril that many breach-of-contract disputes end in an amicable resolution.
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Entertainment Law & Finance
Baron Cohen Lawyers on Winning Ruling In Judge Moore’s Defamation Suit
Ross Todd
In a defamation suit brought by former Alabama Chief Justice Roy Moore, a Federal District Judge recently ruled that a release Judge Moore signed prior to his appearance on the satirical Showtime series Who is America? barred precisely the sorts of claims he was bringing. In this Q&A, Baron Cohen's attorneys discuss the case.
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Entertainment Law & Finance
Olympic Swimmer’s Counsel on Client’s Legal Concerns
Melea VanOstrand
When 2020 came and went without the Tokyo Olympics, due to the COVID-19 pandemic, lawyer Alan Fertel watched as many of the sponsorships and deals he’d negotiated for one of the world’s fastest swimmers — now Tokyo Olympics Gold medal winner Caleb Dressel — expired.
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Cybersecurity Law & Strategy
The Unheralded Value of a Contract
Andrew Banquer
The most important part of a contract is the data that it generates. If you take all that data from each contract, then aggregate, organize and analyze it, you will have critical insights into the overall effectiveness of your contracting process and the way you transact business.
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Entertainment Law & Finance
Licensing Audits from Licensees’ Perspective
David Schnider
The audit clause is a necessary means for the licensor to protect its interests and to guard against unscrupulous licensees. But it is a mistake to think that the clause is there solely to prevent malfeasance.
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Commercial Leasing Law & Strategy
NY Court of Appeals Rules on Damages Clauses In Commercial Leases
Linton Mann III and William T. Russell Jr.
In The Trustees of Columbia University in the City of New York v. D’Agostino Supermarkets, the NY Court of Appeals split on the issue of whether the relevant damages clause in a commercial lease was unenforceable as a matter of law because it was so grossly disproportionate to the ascertainable amount due upon full performance.
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Business Crimes Bulletin
Considerations When Entering Into a Tolling Agreement
Evan T. Barr and Christopher H. Bell
Defense counsel in complex white-collar investigations are often asked to waive these important protections by entering into tolling agreements, stopping the clock on the statute of limitations at issue. Whether such an agreement is actually in a target or subject’s best interest presents a difficult question, and COVID-19 has impacted the calculus.
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The Intellectual Property Strategist
Exercising Restraint: Federal Circuit Affirms Dismissal of Declaratory Judgment Action Under Abstention Doctrine
Rudy Kim and James Hancock
The Federal Circuit affirmed the dismissal of a declaratory judgment action based on the “abstention doctrine,” despite the declaratory judgment plaintiff’s insistence that the underlying contract dispute required resolution of patent validity and claim scope that were within the federal courts’ exclusive purview.
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Cybersecurity Law & Strategy
Transitioning to Remote, Electronic Signing for Transactions
Will Norton
The recent move to more remote work environments has prompted many to take a second look at not only eSignature solutions but also remote online notarization (RON). In order to support transactional practice groups in making the transition to electronic signing and closings, one must understand the challenges and opportunities of these technologies.
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Entertainment Law & Finance
COVID-19 and Force Majeure Clauses
Neil J. Rosini and Michael I. Rudell
The COVID-19 outbreak has wreaked havoc on the entertainment industry. Productions have been halted and distribution channels disrupted. In the midst of this pandemic, one big question for contracting parties is whether force majeure will excuse or postpone a party’s obligations without liability.
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Business Crimes Bulletin
Preparing for the LIBOR Phase Out: Contract Remediation Starts with Contract Intelligence
Ryan Drimalla and Karl Dorwart
The London Interbank Offered Rate has long been the global basis for agreements that include a variable interest rate component. However, LIBOR would be replaced by other benchmarks by the end of 2021. Key to assessing risk of exposure, quantifying the financial impact, developing remediation plans and communicating material information to stakeholders will be the identification, analysis and remediation of LIBOR-based contracts.
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Cybersecurity Law & Strategy
Preparing for the LIBOR Phase Out: Contract Remediation Starts with Contract Intelligence
Ryan Drimalla and Karl Dorwart
The London Interbank Offered Rate has long been the global basis for agreements that include a variable interest rate component. However, LIBOR would be replaced by other benchmarks by the end of 2021. Key to assessing risk of exposure, quantifying the financial impact, developing remediation plans and communicating material information to stakeholders will be the identification, analysis and remediation of LIBOR-based contracts.
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Cybersecurity Law & Strategy
COVID-19: How to Keep Cybersecurity in Mind When Negotiating Work-From-Home Vendor Contracts
Steve Blickensderfer and Trish Carreiro
COVID-19 spurred an overnight surge in demand for work-from-home vendors — from videoconferencing companies to cloud service providers. This caused some companies to rush into service contracts without fully appreciating the privacy and cybersecurity risks involved.
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Entertainment Law & Finance
Followup: PBS Wins Verdict In Suit By Fired TV Show Host Tavis Smiley
Katheryn Tucker
It was a trial to remember for Morgan, Lewis & Bockius partner Grace Speights, lead defense attorney for PBS against Tavis Smiley, former long-running…
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Commercial Leasing Law & Strategy
Force Majeure and the Doctrine of Impossibility
John G. Kelly
The COVID-19 pandemic is resulting in landlords and tenants closely reviewing a clause in their lease that was long considered unimportant boilerplate. Yes, we are referring to the “force majeure” provision.
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Entertainment Law & Finance
Key Provisions in Film Location Agreements
Maxwell Briskman Stanfield
Property owners granting production companies access to their properties seems like a no-brainer — who wouldn’t want their property featured in that next big blockbuster movie or hit television series? However, when filming occurs on private property, a location agreement is a must, from the perspectives of both the production company and the property owner.
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Entertainment Law & Finance
‘Weinstein’ Clauses In Acquisition Agreements
Michael S. Poster
The purpose of a Weinstein clause is to provide assurance that the target company (including its officers and executives) is not a hotbed of sexual harassment or a ticking time bomb of claims waiting to explode. This article on drafting and negotiating Weinstein clauses should help entertainment and media deal teams balance these risks.
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The Bankruptcy Strategist
D&O Policy ‘Bankruptcy Exclusion’ Held To Be an Unenforceable ‘Ipso Facto’ Clause
Mark D. Silverschotz
The new decision is significant because lawsuits against former (and current) officers and directors of debtors commonly are brought, as here, by trusts established under plans of reorganization. Because insurance policies often are the only viable source of recovery for the claims asserted in such lawsuits, this decision potentially opens a pathway to creditor recovery in other similar matters.
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Commercial Leasing Law & Strategy
159 MP Corp.: Grateful That Majority Rejected Dissent’s Radical Approach
Howard A. Levine
Further comment and analysis is warranted on the three-judge dissent, which, if adopted by the majority, would have fundamentally altered the very foundation of New York contract law.
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Entertainment Law & Finance
Star Athlete’s Trainer Loses Commission Bid
Zach Schlein
A lawsuit alleging a former trainer was entitled to a portion of tennis star Naomi Osaka’s lifetime earnings is out of play, after a Broward County, FL, Circuit Court judge dismissed the case.
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Entertainment Law & Finance
When Boilerplate, Customized Clauses Collide in Media Merger Deals
James H.S. Levine and Douglas D. Herrmann
Some contract provisions will necessarily be customized for use in the particular agreement, while others will be boilerplate. But the intersection of those provisions in a merger agreement involving the acquisition of Cablevision Systems Corp led to a serious dispute— and cautionary tale for the merger-laden entertainment and media industries — about interpretation of the agreement, requiring a Delaware court to determine the impact of potentially conflicting language.
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New York Real Estate Law Reporter
Let Freedom (of Contract) Ring: Yellowstone Waivers Are Enforceable
Joshua Kopelowitz and Richard Corde
This is the third in a series of articles exploring whether parties to a commercial lease can contractually waive a tenant’s right to seek a Yellowstone injunction. In a recent ruling, the Court of Appeals, in 159 MP Corp. v Redbridge Bedford, LLC, left no doubt that a contractual waiver of a right to seek a declaratory judgment and/or a Yellowstone injunction in a commercial lease is enforceable.
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Commercial Leasing Law & Strategy
Negotiating Relocation Rights
Terrence M. Dunn
Despite the apparent risks, relocation provisions are frequently not a potential tenant’s priority concern when negotiating the business points of a lease. This is a serious oversight. Signing a lease with an overly broad relocation provision can lead to many issues if the landlord elects to exercise its right to relocate the tenant.
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Entertainment Law & Finance
A Practitioner’s Guide to Key Provisions In Film Director Agreements
Marc Jacobson
Film remains a director’s medium, considering that the director will always give shape and vision to the writer’s words.
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Commercial Leasing Law & Strategy
What to Consider When Drafting Renewal and/or Expansion Terms in Arbitration Clauses
Elizabeth Kluger Cooper and Kimberly C. Jones
Navigating through a murky arbitration clause is no easy feat. Assuming familiarity with the basics, the following is a list of considerations that should prove valuable whether representing the tenant or the landlord.
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Commercial Leasing Law & Strategy
Case Notes
Without Contractual Consent to Inspection, Lack of Protest Doesn’t Excuse Landlord’s Trespass
Resulting Trust Found Where Commercial Property Held in Just One Partner’s Name
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Entertainment Law & Finance
Author and Licensee Content Rights in Agreements for TV Productions
Neil J. Rosini and Michael I. Rudell
These times are heady for creators of books and stories that may be suitable for television production. In addition to the traditional broadcast networks, a legion of pay and basic cable exhibitors and, more recently, direct-to-consumer streaming outlets are voraciously licensing product from those creators. Much press is given to the compensation aspects of the creators’ agreements with exhibitors, but attention also should be paid to the extent and duration of the exhibitor’s exclusivity in the property in which rights are being acquired,
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Entertainment Law & Finance
Compensation Issues from Cancelled Roseanne TV Show
Michael I. Rudell and Neil J. Rosini
It is rare that a hit network television series is cancelled, as recently occurred with the ABC series Roseanne. But when that happens, the immediate and long-term implications for the network, producers, talent and other entities related to the series can be significant.
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Commercial Leasing Law & Strategy
Thinking Outside of the Big-Box: Understanding License Agreements
Kelly D. Stohs and David P. Vallas
One critical component to the successful evolution of a shopping center is creating a stronger connection with community through attractions, events and promotions that bring a fresh vibrancy to the centers. These specialty relationships and other short-term relationships are generally memorialized in a license agreement rather than a traditional lease.
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Entertainment Law & Finance
A Legal Primer for Making Indie Movies
Kelly L. Frey Sr.
While thousands of films are made each year in the United States and Canada, less than 800 were theatrically released in 2017, with many exceptional films failing to obtain commercial distribution because of legal issues.
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Entertainment Law & Finance
Decision of Note: Live Nation Can’t Force Arbitration over Online Ticketing Site
Max Mitchell
Agreeing to arbitration was supposed to be as easy as clicking a button, but Live Nation was unable to show that a man seeking to sue the company actually clicked any of the buttons indicating his consent to arbitrate.
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Entertainment Law & Finance
Meet the Lawyer Working on Inclusion Rider Language
Cogan Schneier
At the Oscars in March, Best Actress winner Frances McDormand made “inclusion rider” go viral. But Kalpana Kotagal, a partner at Cohen Milstein Sellers & Toll had already worked for months to write the language for such provisions. Kotagal was developing legal language for contract provisions that Hollywood’s elite could use to require studios and other partners to employ diverse workers on set.
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Entertainment Law & Finance
Counsel Concerns: Ambiguous Offer for Daddy Yankee to Settle Suit Ends in Attorney Fees Denial
Celia Ampel
Attorneys who sued “Despacito” artist Daddy Yankee for defamation should have heeded the song’s title and drafted their settlement offer slowly, a federal appellate court ruled.
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The Intellectual Property Strategist
How Ticket Software Lost Trade Secret Protection
Richard Raysman and Peter Brown
Trade secret protection applies only to confidential information. In almost all circumstances, broadcasting to the world the intricate details and applications of a trade secret extinguishes whatever “property right” an entertainment industry holder once possessed. What is a sufficient method of contractually notifying a software user of the trade secret status of certain information is a closer question.
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Entertainment Law & Finance
Decision of Note: TV Reality Show Release Overrides Objection Clause
Stan Soocher
The U.S. District Court for the Southern District of New York upheld a release clause signed by an entertainment attorney who appeared in WE network’s reality TV show Money. Power. Respect.
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Entertainment Law & Finance
Smart Contracts and Blockchain
Paige M. Boshell
As the entertainment industry continues to assess digital blockchain-distribution technology for tracking transactions, it’s essential to consider the legal implications for smart-contracting and contract management.
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Commercial Leasing Law & Strategy
The Basics When Reviewing a Real Estate Tax Provision
Mark Morfopoulos
There are several clauses that rarely find their way into a landlord’s initial draft of the lease that may be beneficial to a tenant. In addition, certain real estate tax provisions that are typically included in a landlord’s standard lease form need to be carefully reviewed to make sure they are fair to both the landlord and the tenant.
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Cybersecurity Law & Strategy
Use of the Blockchain to Contract Digitally
Paige M. Boshell
Smart contracts are self-executing agreements written in code on the blockchain. Parties contract digitally using distributed ledger technology. This article offers a layperson’s, non-technical summary of the underlying technology and consideration of certain legal implications for smart-contracting and contract management.
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Commercial Leasing Law & Strategy
Case Notes
Trial Required to Disprove Malice
Court Upholds Conditions Imposed on Zoning Variance
Lease Identified
Notice of Termination Not Defective for Being Sent By Attorney
Hearing Required to Determine Whether Lease Denied for Unconstitutional Reasons
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