Alex ConnThanks for joining us for the final part of our blog series on potential liability of landlords reopening shopping centers in Ohio. In this part four, we are going to take a look at proposed COVID-19 related legislation that is traveling through the Ohio general assembly.

On September, 2, 2020, the Ohio General Assembly enacted

Alex ConnThanks for joining us for part three of our blog on potential liability for landlords reopening shopping centers in Ohio. In this part three, we are going to make some recommendations to landlords on how to try to best protect themselves.

At minimum, landlords should (a) closely follow CDC guidelines for commercial establishments, as well

Alex ConnThanks for joining us for part two of our blog on potential liability of landlords who are reopening shopping centers to consumers in Ohio. In this part two, we will do a deeper dive into the negligence standard in Ohio.

A plaintiff must establish three elements for a negligence claim: that (1) the defendant owed

Alex ConnCommercial landlords all over the country are currently attempting to navigate the complicated waters of reopening during the COVID-19 pandemic. This is a difficult process, as there often seem to be different requirements for each state, county, and even city. In particular, the question of potential liability to customers seems to be of utmost importance.

I attended the recent ICSC Regional Law Conference in Columbus, Ohio. It was a great conference where I reconnected with many great colleagues – including my son Kendall who is only in his second year practicing law, but recently took advantage of his Dad in a lease negotiation where he represented an escape room tenant and his Dad represented the landlord.

Richard Tranter’s presentation on the need for retail to be experiential was great. But Kendall explained it best when he said “a successful retail experience is one where people want to post an Instagram picture about the experience.” I am definitely stealing that.

The best presentation was actually about cannabis, which is a fast-growing retail industry with very interesting legal issues. As you can imagine, attendance for this presentation was high. (ha!)
Continue Reading Fix Your Lease Even if You Can’t Fix the Weather

University of Cincinnati Law Professor Sean Mangan does not hate many things, but ‘and/or’ has to be first on the list – along with whomever might be playing his Irish that weekend. I had the pleasure of taking multiple drafting classes with him several years ago, but I honestly never quite understood the depth of his anger towards the use of ‘and/or’ (along with “thereof”, “henceforth”, “hereto”, and the like). However, as it turns out, he is in very good company, as many judges and legal drafters seem to have some unresolved anger issues with this phrase as well.

The generally agreed upon meaning of “X and/or Y” is “X or Y or both”. That is a fine definition, but the problem is that the lack of clarity on the surface of the expression can allow opposing counsel to deliberately misinterpret whatever provision is in question in their client’s favor. If “X or Y or both” is what you mean, then just write what you mean! Take a look at how judges and style guides view the use of ‘and/or’:
Continue Reading A Plea And/Or Request: Stop Using And/Or

I just attended the BDO Restaurant CFO Roundtable where I presented the Top 10 Most Important Legal Provisions of a Restaurant Lease. Arranged by Dustin Minton and Floyd Roades of BDO, the Roundtable brings together restaurant industry executives to learn about industry trends. BDO is the industry leader when it comes to accounting services for restaurants. I was very impressed with every BDO person I met and I loved their new office. Wide open spaces designed to encourage collaboration. The best space was the employee dining room which had a ping pong table in it and an attached balcony overlooking Great American Ballpark.

I won’t recreate the whole presentation here, but I will say that the top most important lease provision (according to me) is the construction exhibit/clause. Between chargebacks, bonding requirements, security deposits, impact fees, requirements to work before permits are received, equipment requirements and design requirements, a tenant’s construction budget and opening schedule could be significantly affected. And these things are never covered in the LOI and typically are not even presented until the end of the lease process.
Continue Reading Life is Like a Restaurant