Where Can I Sue You?

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Is your forum selection provision mandatory or permissive? What’s a forum selection provision? That’s the one your agreement says where you can file suit to enforce your agreement. What is often confused with a forum selection provision? That would be a choice of law provision. That’s where the parties agree as to which state’s law will apply to their agreement. Once you are properly in any state’s courts, those courts can apply whatever law you’ve agreed should be used. It doesn’t have to be the law of that state. [Yes, there are exceptions, but that’s the overriding principle.]

This isn’t going to be a treatise over whether a court will accept jurisdiction over an out-of-state dispute. One reason is that it varies from state to state. Some states don’t want to get involved, but others “almost” solicit the business. For example, New York’s General Obligations Law (GOL) says that, with certain commercially irrelevant exceptions: [Read more…]

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Can A Bag Of Dog Food Be A Pet? Can A Bar Of Soap Be A Grocery? Another Unnecessary Fight Over Exclusive Use Rights

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Many readers may remember reading one or even many articles or possibly attending programs growing out of a 2013 United States District Court ruling in a law suit by Winn-Dixie Stores against three “dollar store” chains. Some may even have read that lower court’s decision. Basically, that case explored a number of aspects of a dispute about a supermarket’s exclusive use rights. Ruminations never did a blog posting based on that decision. There were two main reasons. First, we were late to the game; many other got there first. Next, the discussion space got so full, there wasn’t much elbow room for us.

Well, things have changed. The United States Court of Appeals “spoke” on March 5, 2014. You can see the 72 page decision by clicking HERE. We’re not so sure this appellate court got it “right,” though it may have had little choice. Read on.

Today, we’ll review the substance of the exclusive use dispute, and we’ll do a reprise of a frequent Ruminations refrain – say what you mean, and mean what you say. [Read more…]

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Unified Theory of Remedies for a Breach of an Exclusive Use – a Work in Progress.

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With the help of some readers, Ruminations is spiraling in on a unified theory about remedies a “violated tenant” might have against its landlord and others for the breach of an exclusive use right granted to the violated tenant in its own Lease. We’re going to start with possible remedies against the landlord because that’s the most discussed facet of this topic when reaching a deal and when negotiating a lease. The agreed-upon remedies are important to lenders and buyers as well because what is agreed-upon can affect the economics of sales and financing transactions. For an example, think about the effect on the shopping center buyer in the Office Depot case discussed in the Ruminations entry of July 25, 2011. [Read more…]

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A Unified Theory of Remedies for Breach of an Exclusive Use Right – a Work in Progress.

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With the help of some readers, Ruminations is spiraling in on a unified theory about remedies a “violated tenant” might have against its landlord and others for the breach of an exclusive use right granted to the violated tenant in its own Lease. I’m going to start with possible remedies against the landlord because that is the one most discussed in reaching a deal and in negotiating a lease. These are important to lenders and buyers as well because they can also affect the economics of sales and financing transactions. For an example, think about the effect on the shopping center buyer in the Office Depot case discussed in the Ruminations entry of July 25, 2011. [Read more…]

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What Is A Rogue Tenant?

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I’ve struggled over this Blog entry more than any of the ones that have preceded it. That’s probably because I’m not comfortable with how to balance the legitimate needs of both a landlord and its tenant.

Certainly, without a tenant having a remedy for a breach of an exclusive use right granted in that tenant’s lease, the “grant” is mere surplusage. On the other hand, it isn’t always something a landlord did or didn’t do that is responsible for the breach. So, that’s one dividing point – was the landlord “bad” or just another innocent victim?

And, on top of deciding if the landlord was “bad” or “innocent,” there is the question of whether a landlord should have some time to “fix” the problem. If the answer is “yes,” then “how long,” and does the tenant get any kind of relief while waiting to see if the problem gets “fixed.” I’m not going to get to those questions (or others) in this entry. [Read more…]

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