1. Strategies to Avoid or Quickly Resolve Thorny Legal Issues
Presented by:
Nick Mann, Esq., Waller Lansden Dortch & Davis, LLP
Rick Plotkin, Esq., GrayRobinson, P.A.

2. Collecting the Entire Lease
Collect any and all amendments, addendums, and any ancillary agreements
Pay particular attention to any estoppels and note the dates of execution
Note any technical errors such as execution, notary, or witnessing errors
Discuss document retention policies
Discuss how this may be beneficial at a later stage

3. Read the Lease Determine all applicable lease provisions
Focus on defined terms and sentence structure
Determine whether any of the applicable lease provisions have been modified by an estoppel or other ancillary agreement
Consider the applicable lease provisions both by the language on their face, and in totality of the lease

4. Prepare Strategy to Address with Landlord
When to get counsel involved (immediately!)
Attorney-Client Privilege and Attorney Work Product
Know who is (and who isn’t) your client
Practice pointers to ensure privileges aren’t waived
Explain Concepts

5. Prepare Strategy to Address with Landlord (continued)
Big Picture Strategy
Consider company’s long-term relationship with the Landlord
Consider how an unfavorable result could impact the company’s larger portfolio
Lease Specific Strategy
Determine whether any of the applicable lease provisions contain a specific remedy
Determine the default procedures, cure periods, and remedies

6. Prepare Strategy to Address with Landlord (continued)
Venue / Law / Alternative Dispute Resolution
Determine all applicable jurisdictions and venues
Determine applicable law and the impact of any provisions that create different rules
Determine if there is an arbitration or mediation clause
If yes, determine if that would create more favorable or less favorable result
Importance of arbitrator’s expertise in commercial real estate
Discuss conflict of law provisions and any provisions regarding interpretations in favor of drafting party

7. Prepare Strategy to Address with Landlord (continued)
Outcome
Determine the Best Case Result
Rent Reduction
Self-Help
Lease Termination
Increased Allowance
Determine Worst Case Result
Acceleration of Rent
Consequential Damages
Determine Acceptable Result

8. Prepare Strategy to Address with Landlord (continued)
Witnesses and Evidence
Prepare list of potential “laymen” witnesses and begin interviews
Prepare list of potential “expert” witnesses and even begin consultations
Gather all evidence and determine what may be admissible
Evidence not admissible in court may be admissible in arbitration or mediation. This may, in turn, affect the venue strategy

9. Initiating Contact or Responding to Landlord
Factors to consider in “informal” correspondence:
Audience (Attorney vs. Non-Attorney) (Large Corporation vs. Mom and Pop)
Tone
Level of detail and analysis
Conclusion (“Govern yourself accordingly” is not a good independent conclusion)
This is referring to correspondence outside of a formal tribunal setting such as default notices, etc.

10. Initiating Contact or Responding to Landlord (continued)
Follow Notice provision at all times (even if the Landlord does not)
Keep records, including notes, of all communications and phone conversations
Factors to consider when filing a formal complaint or response:
Level of detail varies from court to court, but generally a complaint must contain enough facts to state a claim to relief that is plausible on its face
Must contain all claims and plaintiff can “plead in the alternative”
This is especially important during negotiation periods

11. Settlement Agreement Waiver and Release Confidentiality
Non-disparagement
Non-admission of fault

12. Questions

13. Thank You Nick Mann Rick Plotkin
Waller Lansden Dortch & Davis, LLP GrayRobinson, P.A.