Protecting and Attacking Exclusive Use Provisions in Retail Leases
Exclusive use provisions form the foundation of the economic relationships between tenants and landlords in shopping centers across the United States. Landlords make use of these provisions to obtain the right tenant mix in their shopping centers as well as to demand premium rents from the tenants that desire these economic protections. Tenants desire exclusive use provisions to gain the competitive advantages and protections that such provisions afford to their products and services. With the proliferation of so-called 'big box' retailers in shopping centers and the phenomena of over-retailing in communities throughout the United States, exclusive use provisions are increasingly coming under attack. In <i>Tippecanoe Assocs. II, LLC v. Kimco Lafayette 671, Inc.</i>, 829 N.E.2d 512 (Ind. 2005), the Supreme Court of Indiana entered the fray on this issue with a decision that affects the way these provisions should be drafted. This article, through a discussion of the court's decision in <i>Tippecanoe Assocs. II, LLC</i>, describes how exclusive use provisions are coming under attack and practical ways to draft around these issues and to protect landlords and tenants with exclusive use provisions in retail leases.
Procurement Fraud Enforcement
Each year, the federal government spends several hundred billion dollars to obtain goods and services from corporations and other nongovernmental entities. Under the critical eye of the nation's taxpayers, the federal government has amplified its own scrutiny of the ethics and integrity of its procurement officers and those companies with which it contracts. Via new national legislation and investigative initiatives, the attention of Capitol Hill and federal law enforcement offices across the nation is keenly focused on the prevention, detection and punishment of procurement fraud. It is a brand new day ' and a potentially dark one for the unwary governmental contractor.
On the Razr's Edge: Mobile Marketing
Mobile marketing offers the best in advertising ' a direct, personal, measurable and dynamic means of engaging, informing, and entertaining consumers. But this mobile advertising frontier is hardly the Wild West. Plenty of federal and state laws regulate this direct-marketing vehicle. More than that, various industry groups ' most notably the Mobile Marketing Association ('MMA') ' have developed best practices designed to maximize advertising impact while minimizing potential legal entanglements.
Valuing the Closely Held Business
Aside from the many important and critical issues involving children and family, the valuation of a closely held business or professional practice may be one of the most significant issues a practitioner will face when resolving the financial aspects of matrimonial matters. In that regard, one of the most important aspects that the valuator is confronted with is the establishment of a reasonable level of replacement compensation to assign to the owner in the valuation of an ownership interest.
Court Watch
Highlights of the latest franchising cases from around the country.
Associations Seek Role in Accounting Standard Reinterpretation
In a recent development in the ongoing reinterpretation of the accounting standard for commercial leases by the International Accounting Standards Board ('IASB') and the Financial Accounting Standards Board ('FASB'), The Equipment Leasing and Finance Association ('ELFA') has announced that six equipment finance representative associations from around the world have signed a joint communication seeking to have them play an instrumental and constructive role in the process. The joint communication by the ELFA, the UK Finance and Leasing Association, Leaseurope, the British Vehicle Rental and Leasing Association, the Australian Finance Conference, and the Canadian Finance & Leasing Association set forth 11 key principles that should be addressed as the IASB and FASB proceed with deliberations toward a single, efficient global leasing standard.
NorVergence Maelstrom Rolls On: Floating Forum Clause Invalidated As Unreasonable
A recent decision from the Ohio Supreme Court may have an impact on the marketability of commercial lease agreements. In <i>Preferred Capital, Inc. v. Power Engineering Group, Inc.</i>, 112 Ohio St. 3d 429, 860 N.E.2d 741 (2007), the court held that an open-ended forum selection clause, often referred to as a 'floating forum clause,' was not enforceable. The <i>Preferred Capital</i> court found that a floating forum clause in a lease agreement, which provided that any lawsuit arising from the lease would be venued in the state of the lessor's <i>or its assignee's</i> principal place of business, was unreasonable and contrary to public policy. While one might conclude that the subject forum clause is innocuous, the court took issue with the fact that the designated forum could be transferred to another jurisdiction if the lease agreement were assigned. In other words, if the lease were assigned to an assignee with a principal place of business that differed from that of the lessor, the appropriate forum would change. Another significant consideration for the court was the disparity of information between the parties. At the time the lease agreements were executed, the lessor was aware that the leases would be assigned to a company that was based in a foreign jurisdiction. The court's refusal to enforce the forum clause was based, in large part, on the lessor's failure to disclose that information at the time the parties entered into the lease.
The Subprime Lending Crisis: What Does It Mean to the Leasing Industry?
The news is full of stories about the substantial, long-term effects of the subprime mortgage crisis on the mortgage-lending industry. But little has been written about how it will affect other market segments like the leasing industry. There will certainly be spillover, although it won't be as dramatic. This article explores what the leasing industry should be looking for, and doing, in response to this crisis.
