Retail & Hospitality

Gibbons offers a full-service real estate practice to retail and hospitality clients based throughout the United States and abroad who are expanding throughout New Jersey, New York, Pennsylvania, Connecticut, and the broader area. In these matters, we address various zoning and permitting issues, approvals, easements, and developer agreements for store expansions and new construction, appearing before zoning boards, planning agencies, and municipal, county, and state governing bodies. We also undertake sophisticated real estate transactions, including the purchase, sale, and financing of land and properties, representing sellers, buyers, and developers. Our attorneys handle leases that range from ground leases for development projects to retail leases on behalf of landlords and tenants, and we perform lease reviews, including bulk lease reviews, in multiple jurisdictions. The Gibbons team regularly conducts land use and permitting due diligence investigations for clients in single-property and multiple property transactions. Our representation also includes litigation and arbitration related to land use determinations, zoning actions, redevelopment designations, lease disputes, objections to development, including the defense of challenges by business competitors, denials of development approvals, and counsel with respect to construction disputes, title disputes, and contract disputes.

Gibbons often serves as regional counsel for retail and hospitality clients, for which we handle multiple development applications at one time throughout the region. Historically, we have handled hundreds of projects for these clients. And as clients innovate, Gibbons guides and supports them. For example, for a project once named “Industrial Deal of the Year” by the New Jersey chapter of the National Association of Industrial and Office Properties (NAIOP – NJ), the firm represented a supermarket parent company in the development of a warehouse facility for its online grocery business in New Jersey, New York, and Connecticut.

Gibbons attorneys are adept at handling the unique challenges faced by employers in the retail and hospitality industries, including, in particular, wage and hour cases, unfair labor practice proceedings, union organizing campaigns, and the full range of discrimination and harassment allegations. Specifically, Gibbons attorneys have significant experience representing employers in connection with wage and hour matters under the Fair Labor Standards Act (FLSA), as well as state wage and hour laws, successfully defending employers in a number of wage and hour investigations by the U.S. and state departments of labor, including in New York, New Jersey, and California, and we have been involved in class, collective, multi-plaintiff, and single-plaintiff actions under both federal and state wage and hour laws. We regularly counsel employers regarding compliance with the FLSA and New York and New Jersey state wage and hour laws, advise and train employers on wage and hour policies and practices, and conduct internal wage audits. Our wage and hour experience includes counseling and litigation related to:

• Exempt/non-exempt classification
• Employee vs. independent contractor status
• Misclassification
• Overtime compensation and off-the-clock work
• Failure to pay wages
• Illegal pay deductions
• Time clock issues and time-keeping practices
• Rounding practices
• Fluctuating workweek
• Meal breaks
• Severance pay

We handle a broad range of business and commercial litigation for a number of clients in the retail and hospitality industries. The firm has substantial experience in numerous areas, such as antitrust, shareholder and partnership disputes, contract disputes, Consumer Fraud Act claims and other class actions, restrictive covenants, and all business torts, including fraud and misrepresentation, intentional interference, unfair competition, trade libel, and trade secret theft. In addition, a matter handled by Gibbons business litigators on behalf of a hospitality industry client – with “eye-catching rulings” related to the Federal Trade Commission’s ability to regulate private data security practices – was named by Law360 as one of the “Biggest Privacy Cases” of its year.

Our mission in the franchise law practice group is to provide all the legal assistance that franchisors require in connection with national and international franchise and distribution arrangements and the development, enforcement, and protection of franchise relationships. Gibbons attorneys in the corporate and finance, real estate and land use planning, intellectual property, litigation, corporate, tax, employment, products liability, and antitrust areas are available to handle all aspects of legal representation relating to the franchising world.

We have extensive experience in the retail and hospitality industries, with particular reference to franchised operations. For example, Gibbons attorneys conducted the nationwide corporate reorganization of a major motel chain, litigating or negotiating with franchisees and co-owners for termination, sale, restitution, and related matters. We have been involved with litigation or restructuring of other entities in the industry, including Atlantic City hotel/casinos, airport hotels, and other entities. Gibbons has also assisted in establishing national restaurant franchises. In one multimillion-dollar transaction, we advised our client on the structure and formation of entities for entering into its multi-unit franchise relationship; negotiation and closing of franchise and area development agreements; negotiation with lenders; negotiation and closing of terms of operating agreement and private placement of LLC membership interests, with attention to tax implications, governance issues, and applicable federal and state securities law exemptions; and negotiations, document drafting and review, and closing of the transfer of a liquor license.

Many of our retail and hospitality clients have issues related to the sale of alcoholic beverages, which is strictly regulated in many states. An alcoholic beverage license or permit, depending on the jurisdiction, may be issued at the municipal level or the state level. It may require formal action by the legislative governing body and perhaps a public hearing. It must be renewed annually, and the renewal may be subject to a public hearing. In some jurisdictions, the number of licenses in each municipality is limited based on population and/or the number of licenses in which a single individual or entity can hold an interest is limited to two. A comprehensive application and background investigation, requiring detailed financial information and often fingerprinting, are mandatory; for corporate applicants, an investigation typically includes officers, directors, and shareholders. Where a licensed premises may be located, and how it can be physically changed, are subject to their own sets of rules. Technical violations can result in disciplinary action, including license suspension. Attorneys at Gibbons have broad experience with the relevant state and local regulatory laws and agencies that determine an establishment’s ability to serve or sell alcohol. We have strong relationships with liquor license brokers and detailed familiarity with the marketplace and the complex, comprehensive regulatory scheme that includes statutory, administrative, and municipal law.

Several of our litigators have specific experience defending retail and hospitality clients in a variety of strict liability personal injury, negligence, and property damage matters. Gibbons has defended major retail and restaurant chains in cases that have included claims of premises liability, including individual plaintiffs alleging negligence and pursuing personal injury claims against the stores, as well as vendors and other outside contractors claiming personal injuries while employed inside our clients’ properties. In addition, we have defended products liability claims brought by consumers who alleged that they sustained injuries from defective food and other products sold by our clients. Many of these matters would involve related claims for defense and indemnity against product distributors or manufacturers arising from the personal injury claims against the stores. Other issues that we address in the course of these representations include adequacy of physical security and property safety measures, employee hiring and training, food preparation, franchisee operations, improper maintenance, structural deficiencies, and building code violations.

The firm handles debtor and creditor representations of retail clients in federal bankruptcy cases, pre-bankruptcy “workout”/insolvency counseling, and related state court litigation involving receiverships, attachments, replevins, and commercial foreclosure actions. We have particular experience with real estate-driven chapter 11 cases involving retail and hospitality companies, including matters addressing the full range of complex landlord/tenant issues in bankruptcy. Our attorneys are frequently consulted in the transactional stage of retail real estate matters, to draft documents and assess the impact of bankruptcy law on the proposed transaction. We also represent mortgagees and mortgagors in bankruptcy court and with respect to workouts through deeds in lieu of foreclosure. In addition, Gibbons has long represented creditors in retail industry bankruptcies nationwide, most commonly with respect to the defense of claims, assertion of reclamation claims, and actions to avoid transfers of debtors’ property to the firm’s clients. Some of the retail bankruptcies in which we represent or have represented creditor interests include Boscov’s, Borders, Petrie Retail Inc., Bradlees Stores, Caldor, Inc, and Circuit City.