Retail and Hospitality

As leaders in their fields, some commanding scores of properties and hundreds or thousands of employees, our clients are too often the targets of frivolous and opportunistic litigation and exaggerated claims. Spanning diverse industries, our clients also face many different types of litigation and other legal concerns that require knowledge of state, federal, and international laws and regulations; fluency with scientific or technical vocabulary; and a command of emerging trends at the intersections of trade, law, and technology.

In litigation, arbitration, mediation, and trials and appeals, we protect retailers and hospitality providers in disputes involving:

• Premises liability and other tort claims (including liability for violent crimes)
• Dram shop and liquor liability claims
• Construction site worker injury and New York “Scaffold Law” claims
• Product liability, product recalls, and related issues
• Asbestos and toxic tort claims
• Construction defects
• Allegations of discrimination, retaliation, improper termination, and other employment claims
• Landlord-tenant issues and evictions

Representative Matters

• Obtaining a defense verdict in favor of a retail store owner at arbitration in a trip-and-fall case and, upon plaintiff’s appeal de novo, effectively cross-examining the plaintiff’s expert medical witness, resulting in a nominal and cost-effective settlement
• Defending a national retail sporting goods chain in a multimillion-dollar product liability trial involving an all-terrain vehicle/utility task vehicle rollover
• Defending a premier outdoors retailer against a six-figure claim from a plaintiff who suffered severe burn injuries from a defective fuel gel product made by a bankrupt manufacturer, settling for a nominal sum
• Defending supermarket chains in premises liability claims and obtaining defense verdicts, nominal settlements, successful third-party tenders, and favorable mediation outcomes and binding arbitration awards
• Defending a global coffee giant in a premises liability suit brought by a plaintiff claiming up to $1.5 million in damages after suffering an alleged traumatic brain injury in a slip-and-fall case
• Serving as lead regional defense counsel for a management company facing over 100 lawsuits involving ADA accessibility claims against shopping plazas, malls, and sporting arenas; coordinating with defense counsel across the country in to develop practices that will help prevent these suits from continuing to burden retail businesses
• Obtaining dismissal of a series of three individual race discrimination cases filed against a nightclub

The representation we offer begins with developing a thorough understanding of our clients’ unique business models, needs, and concerns, and we strive to provide innovative solutions to avoid disputes and manage risk. We assist in creating and implementing policies and procedures that minimize exposure and improve the safety of customers and employees. We offer preventive counsel on matters including:

• All types of risk management
• Indemnification and insurance
• Landlord-tenant relations
• Zoning and land-use permitting
• Cyber risks and emerging technologies
• Advertising and social media
• Occupational Safety and Health Act (OSHA) issues
• Customs and international trade
• Employment and labor (including drafting and reviewing personnel manuals and managing reductions in force)
• Intellectual property (including copyright and trademark registration)
• Consumer Product Safety Commission compliance

Always mindful of your business needs and bottom line, our attorneys employ creative and results-oriented pre-suit negotiations and pre-answer motions to resolve commercial disputes before they become full-fledged litigations. When litigation does become necessary, our seasoned trial teams draw on decades of collective experience handling commercial disputes for retail and hospitality businesses and franchises, developers, and senior executives in complex matters that often span a multitude of jurisdictions.

We also represent both plaintiffs and defendants in alternative dispute resolution (ADR) forums and administrative tribunals. With several senior partners serving as mediators, neutrals, and factfinders in various jurisdictions — including a member of the International Institute for Conflict Prevention and Resolution’s Panels of Distinguished Neutrals, ARIAS-U.S. Certified Arbitrators, and a Certified Federal Court Mediator — we have a deep and nuanced understanding of the ADR process. We frequently represent clients in commercial arbitrations before the American Arbitration Association (AAA), International Chamber of Commerce (ICC), and Society of Maritime Arbitrators (SMA), among other venues and entities.

Regardless of the forum, our litigators efficiently and proactively represent client interests in complex litigation matters and arbitration proceedings involving:

• Breach of contract
• Breach of fiduciary duties
• Commercial fraud
• Commercial defamation
• Complex contractual disputes
• Corporate governance
• False advertising claims
• Mergers and acquisitions
• Partnership dissolutions
• Theft of trade secrets
• Unfair competition

Representative Matters

• Representing one of the world’s largest hospitality companies and its subsidiary, an iconic hotel brand, in a franchise dispute stemming from the termination of a franchise agreement after a franchisee failed to make required payments
• Represented an online apparel retailer (“e-tailer”) in pre-suit negotiations with third-party logistics provider over disputes relating to a fulfillment contract
• Represented and negotiated a favorable settlement for major Canadian-based fashion house in connection with trade dress dispute against importers
• Represented hotel franchisee in franchise agreement dispute against hotel franchisor and financing entity and obtained a favorable settlement
• Obtained successful resolution for partner in a multi-million dollar fitness studio venture in connection with the venture’s dissolution
• Successfully represented well-known gourmet popcorn retailer in insurance coverage dispute related to Hurricane Sandy coverage

Our team combines years of multi-disciplinary experience with in-depth knowledge of state and federal real estate regulations to guide retail, hospitality, and commercial development corporations of all sizes through the real estate transaction process—which involves interacting with numerous government entities, financial institutions, and other agencies across a wide range of industries.

In addition, our commercial real estate and title litigators have handled some of the most significant and contentious real estate and title disputes involving high-value transactions and development projects in recent years and they stand ready to assist our clients in the retail and hospitality industries with complex real estate and title litigation wherever and whenever a need arises.

Commercial Leasing Disputes

• Continuous operations clauses
• Exclusivity provisions
• Fee and tax calculations
• Landlord-tenant issues and evictions
• Premises liability and security matters
• Relocation clauses
• Termination leases and agreements
• Voluntary transfer of possession

Title Insurance and Title Disputes

• Bankruptcy proceedings involving motions to lift stays and advisory proceedings
• Bona fide purchaser and encumbrancer status
• Coverage investigation, response, recoupment, and litigation
• Diminution in value analysis
• Equity analysis surrounding mortgages, property liens, and subrogation
• Expert opinions in bad faith litigation
• In rem tax proceedings and foreclosure sales
• Incorrect, invalid, and unrecorded mortgages, home equity lines of credit, and deeds
• Lender underwriting procedures and title agent’s due diligence
• Lobbying efforts to resolve issues with prior governmental properties
• Mortgage fraud, fraudulent real estate conveyances, and forgeries
• Property conveyance negligence actions
• Real estate transfers under the Religious Corporations Law, membership agreements, partnerships, and not-for-profit corporations
• Survey and property description errors
• Title and priority issue litigation concerning property line disputes, mechanic’s liens, easements, notices of pendency, and adverse possession claims

Representative Matters

• Represented a major regional bank in a dispute involving a mechanic’s liener trying to assert rights over a branch property
• Represented a major central New York hotel developer in a dispute regarding a mechanic’s lien at trial and in an appeal to the New York State Fourth Department
• Representing a developer that had entered into a contract with a town for the exchange of properties in anticipation of a development project; achieving reversal of the denial of a petition under Article 78 to annul a town board resolution rescinding the town’s contract with the developer

With experience spanning public, private, and hybrid projects of all sizes across the firm’s entire national footprint, our litigators and counselors are equipped to assist retailers, hospitality providers, commercial developers, and property owners with any construction need.

Project Inception, Planning, and Finance

• Commercial leases (gross leases; single, double, and triple net leases; and modified gross leases)
• Commercial loan agreements (term, demand, and revolving) and ancillary documentation including promissory notes; opinions of counsel; and inter-creditor, subordination, errors and omissions, and security and indemnity agreements
• Construction agreements focusing on AIA contracts, owner-architect, contractor and sub-contractor, and development agreements
• Drafting and negotiating Purchase Agreements
• Due diligence process
• Environmental concerns, including Phase I and Phase II environmental audits
• IRS Code §1031 “like-kind” exchanges
• Project financing solutions, including tax exemptions, special bonds, grants, and other programs and incentives
• Land use and zoning issues, including New York Article 78 actions
• Letters of intent

Design Defect, Worksite Injury, and Construction-Related Claims

• Alleged Industrial Code violations
• Bad faith claims
• Claims of failure to provide a safe place to work
• Common-law negligence claims
• Coverage analysis
• Design defect, workmanship, and product defect claims
• Global warming claims
• Insurance coverage and indemnity disputes
• New York Labor Law/Scaffold Law claims
• OSHA investigations and claims
• Owner-controlled insurance programs (OCIPs)
• Workers’ compensation issues

Representative Matters

• Represented a large, regional owner of convenience stores through a highly contested permitting process, overcoming initial opposition from the municipality and, later, citizen groups who sought to block the development of a project
• Handled complex construction permitting for the development of a restaurant in a food court in a Miami mall

Along with defense and preventive counsel, we provide transactional representation and day-to-day business and operational counsel to help our clients in the retail and hospitality industries to meet their short-term and long-term goals, and to plan for sustainable growth and prosperity. Our transactional team is exceptionally well-positioned to assist clients in the retail and hospitality sectors with all of their corporate and transactional needs.

We are ready to handle:

• Acquisitions, mergers, divestures, and reorganizations, including assistance with letters of intent, due diligence, and stock and asset sales and purchases
• Advising on marketing, including social media use
• Drafting and reviewing contracts and agreements, including employment, non-disclosure and non-compete, construction and leasing, and software and merchandising
• Drafting corporate organization documents, including shareholder agreements
• Franchise, strategic alliance, and joint venture agreements
• Obtaining bank and private financing for large development projects
• Partnership or corporation formation and dissolution
• Preparation of standardized business form documents, including purchase orders, terms and conditions, acknowledgement and order processing forms, indemnification terms, distribution agreements, and Uniform Commercial Code (UCC) security agreements
• Stock and asset sales and purchases

In addition, we regularly assist clients with the full spectrum of international legal and business needs, including international transactions, licensing, imports/exports, employee immigration issues, and general corporate counsel.

We counsel, train, and defend clients in numerous industries facing all conceivable cybersecurity and data-related matters. Practice Chair Marc Voses, one of the foremost counselors on cyber-related legal issues, leads a team of verdict-tested trial lawyers, preeminent intellectual property litigators, and leading regulatory attorneys collaborating to provide 360-degree cyber counsel.

We help industry-leading retail and hospitality companies, their executives and IT professionals, and their insurers with:

• Breach response and crisis management, post-breach regulatory compliance, policy reassessment, and breach-related public relations
• Breach-related litigation, including class action defense
• Comprehensive national and state-specific regulatory counsel and risk management
• Developing and training computer security incident response teams (CSIRTs)
• Drafting data breach protocols and training management and employees
• Drafting and reviewing security policies and contracts
• Social media counseling
• Technology liability audits

Representative Matters

• Representing numerous retailers, hospitality providers, and other clients in putative class action lawsuits brought pursuant to the Telephone Consumer Protection Act
• Advising large multinational retailers on privacy policies, terms of use, and terms of sales to comply with FTC and FCC regulations, and advising on compliance for sweepstakes, advertising promotions, and product-placement agreements
• Conducting due diligence and advising on compliance with privacy and data security laws in the sale and acquisition of company assets, including customer lists and databases containing personally identifiable information
• Developing and negotiating security agreements to ensure vendors defend and indemnify our clients on privacy and security issues, including agreements involving cloud service providers, co-location facilities, outsourced services, and other entities

By offering comprehensive employment and labor counsel, we have helped numerous clients advance their management philosophy and maintain their unique company culture — often in the face of intense stressors from traditional labor issues, discrimination and civil rights claims, regulatory concerns, and other employment-related litigation.

Our ultimate goal for every client is to reach cost-effective resolutions that make sense for their business now and into the future, so we work deliberately at every stage to reduce our clients’ legal expenses, case length, and settlement costs. Whether providing proactive counsel or vigorously defending an employer in litigation, arbitration, or an administrative action, we bring a business-judgment perspective to every matter — always informed by our attorneys’ experiences serving as in-house and outside general counsel as well as in executive human resources roles in numerous industries — and always with an eye toward preventing future conflicts or complications.

We regularly assist clients in the retail, hospitality, and development industries with:

• Collective bargaining agreement negotiations
• Compliance with ADA, FMLA, and state and local sick leave laws
• Counsel on day-to-day personnel issues
• Defending against claims brought by serial ADA claimants
• Developing company-tailored employee handbooks, policies, and other standards that help employers reduce the risk of lawsuits
• Discrimination, harassment, and unlawful termination lawsuits
• Employment practices liability (EPL)
• Providing guidance and negotiating resolutions for a company facing ADA accessibility claims
• Representation before the Equal Employment Opportunity Commission (EEOC)
• Running interactive workshops and training sessions on-site for management
• Wage and hour audits

Representative Matters

• Negotiated favorable resolutions for retailers, restaurants and shopping malls and plazas for ADA Title III physical and website accessibility lawsuits
• Defended multiple commercial property owners in federal lawsuits instituted by a handicapped serial plaintiff who alleges to have visited numerous retail plazas across the country, claiming he was denied access to the properties in violation of the ADA
• Obtained dismissals of the lessee of Philadelphia parking garages in a series of lawsuits involving public accommodation claims under the ADA
• Obtained dismissal of a Title III ADA accessibility case for a hotel
• Obtained a “no cause” determination with respect to claims of age, race, and national origin discrimination brought by a former employee against a country club
• Obtained dismissal of a series of three individual race discrimination cases filed against a nightclub
• Obtained a defense verdict in favor of a retail store owner at arbitration in a trip-and-fall case and, upon plaintiff’s appeal de novo, effectively cross-examined the plaintiff’s expert medical witness, resulting in a nominal and cost-effective settlement
• Obtained summary judgment in favor of an international pizza brand facing allegations of wrongful termination, retaliation, and discrimination under the New York State and New York City Human Rights Laws
• Represented and defended several well-known restaurant chains with respect to alleged violations of the FLSA and state labor statutes
• Obtained a no cause finding from the EEOC on behalf of a resort and golf club with regard to race discrimination claims asserted by a former employee
• Obtained a no cause finding from the EEOC on behalf of an on-demand healthcare concierge with regard to race discrimination claims asserted by a former employee
• Secured dismissal of an age and gender discrimination claim on summary judgment for a jewelry retailer in New Jersey Superior Court
• Defended a well-known “gentlemen’s club” in Philadelphia in an FLSA overtime/unpaid wages class action suit, ultimately resolving in a favorable settlement
• Represented major hotels in collective bargaining agreement (CBA) negotiations, and subsequent negotiations over issues that arose during the term of the CBA
• Defending hotel and restaurant clients in the grievance process pursuant to the terms of a CBA, including the final step of arbitration
• Conducted many workplace investigations for restaurant and bar clients based on employee allegations of sexual harassment and discrimination
• Providing restaurant and bar management teams with training on sexual harassment, discrimination, hiring/onboarding, disciplinary issues, termination procedures, and other issues, and drafting employee handbooks and policies

We help national and international retail and hospitality companies manage, monetize, and protect their intellectual property portfolios.

With a team comprising licensed patent attorneys, trial-tested IP litigators, and versatile portfolio managers, we can assist with:

• Licensing and portfolio management
• Patents and patent litigation
• Trade secret identification and protection
• Trademarks and copyrights
• Transactions and integrated business services
• Unfair competition

Representative Matters

• Defending an apparel distributor against allegations of copyright infringement arising from handbags it sold
• Defending a regional craft brewery against claims of trademark infringement from a nationally distributing brewery
• Representing a medical supplies wholesaler in a trademark and unfair competition action concerning importation of international grey market goods
• Defended a Syracuse-based home-builder against a demand of $15 million in copyright infringement claims brought by a Nebraska-based designer and marketer of stock home plans, a serial IP plaintiff that had filed more than 100 lawsuits across the country against construction companies and developers
• Defended a chain of high-end olive oil shops on Long Island against a high-profile intellectual property, defamation, and unfair trade practices lawsuit brought by an organization representing North American manufacturers of olive oil against a California-based distributor and seven retailers it supplies; claims included defamation from alleged marketing statements and unfair competition and deceptive trade practices relating to an allegedly illegal certification

Our game-changing Workers’ Compensation team has helped hundreds of retailers, hospitality companies, and developers—including self-insured clients and clients with large retentions and deductibles—to cut down the costs of workers’ compensation litigation and even to reduce the incidence of claims.

Handling workers’ compensation litigation before all appropriate government agencies and courts and in all forums of alternative dispute resolution across the firm’s entire footprint, we have shifted employers’ and insurers’ expectations with our innovative model. We handle each claim from beginning to end, staying abreast of even the most minor changes in interpretive language used by the courts, and develop strategies for each unique situation. Always looking for opportunities both to improve workplace safety and to reduce workers’ compensation claims, we have also developed several new approaches and programs that have helped our long-term clients’ bottom lines, including our celebrated Opioid Impact Program and Integrated Disability and Workforce Management Program, both of which have dramatically helped many of our retail, restaurant, and hotel clients.

Representative Matters

• Represented a top-tier global retail fashion brand and secured a Final Order from the Maryland Workers’ Compensation Commission finding that a claimant did not sustain a compensable hernia claim arising out of and in the course of his employment, resulting in a complete denial of the claim and zero exposure for the client.
• For a high-end men’s clothing retailer, achieved a very minimal permanency finding after the claimant’s attorney backed out of extensive settlement discussions. We offered $25,000 to settle the claim and the results of the permanency hearing amounted to $6,000 in benefits. We will now use the favorable permanency finding to leverage a full and final settlement, with significant cost savings.
• For a high-end men’s clothing retailer, successfully defended against a $57,000 surgery which was alleged to be related to our claim. Not only were we successful in establishing the surgery due to unrelated and pre-existing conditions, we were able to have a finding made that the body part in question was not even a part of the claim. This provided the client with the immediate savings on the surgery claim, and the protection from future claims for treatment to this body part.