Hotel Law Blog

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
27 June 2012

Hotel Labor Lawyer update on recent United States Supreme Court decision affecting wage an hour (overtime) requirements

In this article, Jon McNutt, an associate in JMBM's Labor & Employment Group, reviews the United States Supreme Court's recent decision concerning overtime exemption under the Fair Labor Standards Act.

The Fair Labor Standards Act's (the "Act") outside salesperson exemption has been a hotly contested issue for many years. To qualify for this overtime exemption under the Act, an employee's primary duty must be "making sales" and the employee must be "customarily and regularly" engaged in making sales outside the employer's place of business. Employers and plaintiffs have clashed over the types of duties that meet the criteria -- including whether individuals who lay the groundwork for a product's sale are, in fact, salespersons.

On June 18, 2012, the United States Supreme Court in Christopher v. GlaxoSmithKline Beecham provided guidance on this issue and handed employers a victory. In Christopher, two former GlaxoSmithKline pharmaceutical sales representatives filed a class-action lawsuit claiming that they were not paid for hours they worked each week outside the normal business day. Their jobs required them to meet with doctors in their offices to pitch Glaxo products, but also to attend conventions, dinners, and golf outings. GlaxoSmithKline argued that their job duties and work away from the employer's business exempted them from overtime pay, whereas the employees claimed that since they were not actively involved in the product sale, they should receive overtime pay.

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Posted In: Labor & Employment

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
20 June 2012

Update on California's EB-5 policy regarding designation of Targeted Employment Areas or TEAs.

California adopted a new TEA policy as of April 30, 2012 which my partners Catherine Holmes and Victor Shum have been on top of from the outset. (See: EB-5 ALERT: California's new TEA approach will discourage EB-5 investment in Californiaand EB-5 Lawyer Alert #2: Update on California TEA designation procedure.)

On June 19, 2012, the California Governor's Office held an open conference call to discuss further changes in California's procedures for designating Targeted Employment Areas or TEAs. There is some good news and some bad news. Here is an update on what transpired.

EB-5 ALERT #3: California Governor's Office announces
changes in California's TEA procedures
for EB-5 immigrant investor financing
by
Catherine DeBono Holmes and Victor T. Shum | Hotel Lawyers

The Governor's Office of Business and Economic Development held a stakeholders conference call to announce modifications to its new procedures for designating "Targeted Employment Areas." On June 19, 2012, Brook Taylor, Deputy Director for Communications and Policy of the California Governor's Office of Business and Economic Development (known as "GoBiz") held an open conference call to discuss further changes in the procedures adopted on April 30, 2012 by the State of California for designation of "Targeted Employment Areas" or "TEAs".

TEA Designation is critical to the viability of an EB-5 project. As our readers know, the EB-5 investor visa program allows non-U.S. persons to obtain United States permanent residency (green card) if they invest $1,000,000 in a new commercial enterprise that creates at least 10 new, permanent, full-time jobs per investor. If the new commercial enterprise is located within a TEA, the required investment is reduced to the $500,000 level (while still creating 10 full-time jobs). If a project in not located in a TEA, then the project is for all purposes shut out from raising EB-5 funds because EB-5 investors will not want to invest at the $1,000,000 level when other projects are available at the reduced $500,000 threshold.

The new procedure will designate individual census tracts with qualifying high unemployment as TEAs. As modified effective yesterday, the California TEA designation procedure will now allow individual census tracts with qualifying high unemployment to be designated as TEAs, in addition to metropolitan statistical areas ("MSAs"), counties, cities with qualifying high unemployment and rural areas. In addition, California will issue individual letters to project developers certifying qualified TEA areas for specific project locations, in order to provide assurance to EB-5 investors that the projects they invest in are qualified at the $500,000 investment level.

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Posted In: EB-5 Financing

On June 21, 2002 Guy Maisnik will be a featured speaker at the 2nd Chinese Investment and EB-5 Finance Forum in Los Angeles.

This Conference is designed for everyone interested in taking advantage of foreign investment from China "inbound" for U.S. real estate. It features some of the most knowledgeable and respected experts in the country on this subject and will facilitate foreign investors and capital sources networking with U.S. real estate professionals, developers, and owners.

Guy Maisnik, an industry veteran with nearly 30 years of real estate and hospitality experience, will provide practical tips and insights from lessons learned in representing Chinese investors in the U.S. Maisnik says, "The more you understand the nature of your investors, their concerns and the issues, the greater your chances for success with your transactions."

Maisnik is a vice chair and a senior member of JMBM's Global Hospitality Group® and Chinese Investment Group, and is also a member of and is involved in more than 40 Chinese investments in the U.S. -- EB-5 or otherwise. Maisnik notes that "Chinese investors are particularly interested in hotel and related hospitality investment as well as broader classes of real estate."

For more information on Chinese investment and EB-5, please click here or go to: http://hotellaw.jmbm.com/eb5_financing.

For more information on the 2nd Chinese Investment and EB-5 Finance Forum, click here or go to :
http://www.attractasianinvestors.com/index.html.

Come join Guy at the Forum and take advantage of this opportunity.

Embassy Suites Los Angeles International Airport/North
9:00 am - 4:30 pm
June 21, 2012
Register Now

Posted In: Chinese Investment , EB-5 Financing

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
5 June 2012

Hotel Lawyer with some good news for hotel developers on financing new construction projects.

As the speakers at NYU are telling us, hotel development is happening again! And the pace is picking up. To be sure, only the best projects will get financing with great locations, experienced developers and sound fundamentals. But even then, financing can remain a challenge.

How are the successful developers getting their projects financed? There are probably a lot of answers to that question, however, it is clear that many new projects are tapping alternative sources of financing.

Here is an article about this that recently appeared in Hotel Business, written by my partner Catherine Holmes. It is a good read.

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Posted In: EB-5 Financing , Hotel Development

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
30 May 2012

Hotel ADA defense and compliance lawyer: ADA litigation over website accessibility is poised to explode.

How many lawsuits or claims have been filed by private plaintiffs and the Department of Justice (DOJ) against property owners under the Americans with Disabilities Act or ADA?

The latest figures show that more than 15,500 such ADA lawsuits or claims have been filed. And the pace is about to pick up in a big way.

My partner Marty Orlick, who heads JMBM's ADA compliance and defense team, has defended more than 500 ADA claims all over the country. Marty warns that we may be about to see a tidal wave of Cyber Accessibility claims -- lawsuits about reservation systems, hotel websites and related communications facilities.

Why could there be a big slug of these ADA lawsuits over websites? Marty says that there are several reasons:

1. First, these lawsuits will be very easy for plaintiffs to work up. The plaintiffs do not need any site inspection, experts or research. They can just surf the web from the convenience of their homes or offices. Marty says the "surf by" complaints could dwarf the "drive by" ADA lawsuits that looked for missing accessible parking spaces and other readily visible shortcomings.
2. Second, some owners and operators have not been paying enough attention to this issue. They have had their attention elsewhere, such as on operating fundamentals, labor costs and ADA pool lift requirements.
3. Both the DOJ and private plaintiffs have had tremendous success with website accessibility lawsuits under the ADA (see the discussion below and related articles about the Hilton International consent decree and the Charles Schwab class action case), and they are growing impatient for compliance.
4. In addition, a lack of clear industry standards and misinformed marketing staff have lulled some into thinking they are already in compliance when that is not so.
5. Finally, some owners and operators have not recognized ADA compliance for the high priority it demands. They have not appreciated how costly ADA litigation and defense can be, and how compliance is so much cheaper than defense.

So here are some timely tips from Marty Orlick, a pro who really understands the ADA compliance and defense. . .

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Posted In:

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
29 May 2012

Hotel lawyer with latest insights from ADA experts on "ADA Compliance & Claims Prevention."

At a recent gathering in Los Angeles, a group of ADA experts convened to discuss the hottest issues facing our industry. The panel was moderated by my colleague David Sudeck, who was kind enough to write an article for our readers summarizing some of the matters discussed. The PowerPoint presentation prepared by the panelists is also available by clicking here

There have been more than 15,000 ADA lawsuits filed in the United States. Failure to comply is expensive and bad for business. It is important to be ADA-friendly.

In addition, David Sudeck and Marty Orlick, have written articles and been featured on several webinars, on the topic of Americans With Disabilities Act (ADA), as well as specifically on the new 2010 Regulations which came into effect in part on March 15, 2011 and in part on March 15, 2012 (other than the pool lift regulations, the implementation of which have been delayed, as discussed below). Please feel free to contact either one of them - dsudeck@jmbm.com (David Sudeck) or morlick@jmbm.com (Marty Orlick) for additional reference materials or if you would like to discuss your ADA compliance and defense questions.

Here is the summary of the panel discussion . . .

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Posted In: ADA Defense and Compliance

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
29 May 2012

HotelLawyer.com launches
Portal to knowledge for the hospitality industry

JMBM's Global Hospitality Group® hotel lawyers launch comprehensive hospitality resource

LOS ANGELES -- May 29, 2012. Jim Butler, Chairman of the Global Hospitality Group® at Jeffer Mangels Butler & Mitchell LLP (JMBM) announced today that the Group has officially launched HotelLawyer.com, a comprehensive resource for the hospitality industry.

"JMBM's Global Hospitality Group® is known for providing useful information, thoughtful analysis and a refreshing perspective to legal and business issues that affect the industry," said Butler. "Our rich library of industry information is now organized in one convenient place -- at HotelLawyer.com."

On HotelLawyer.com, readers will find nearly 500 articles published over the years on the Hotel Law Blog, and the first two books in the We Wrote the Book™ series (The Lenders Handbook for Troubled Hotels and The HMA Handbook: Hotel Management Agreements for Owners, Developers, Investors and Lenders). These FREE resources continue to be accessed by thousands of readers each month.

Also available without cost at HotelLawyer.com are presentations from industry leaders, such as those given at JMBM's 2012 Meet the Money® conference by Suzanne Mellen of HVS, Bruce Baltin of PKF Consulting, Greg Hartmann of Jones Lang LaSalle Hotels and Alan Reay of Atlas Hospitality Group.

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Posted In: Ask the Hotel Lawyer™ , Data Technology, Privacy & Security , Outlook and Trends

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
24 May 2012

Update on California's EB-5 policy regarding designation of Targeted Employment Areas or TEAs.

California adopted a new TEA policy as of April 30, 2012 which my partners Catherine Holmes and Victor Shum wrote about a few days after publication. (See: EB-5 ALERT: California's new TEA approach will discourage EB-5 investment in California.)

Last Friday, Catherine and Victor met with the California Governor's office to discuss concerns they have raised along with those of the EB-5 community. They appreciated the seeming responsiveness of the Governor's office and the meeting bodes well for the outcome. Ultimately, the test of the Governor's office will be in the approach that California takes on designating TEAs, but here is an update on what transpired.

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Posted In: EB-5 Financing

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
22 May 2012

At JMBM's recent hotel finance conference in Los Angeles, a panel of experts talked about how well joint ventures are working to provide financing for hotel development and acquisitions.

The hotel joint venture experts

The Joint Venture Panel from Meet the Money® 2012 featured 5 veteran hotel investors and operating partners, and was moderated by Guy Maisnik, hotel lawyer and Vice Chair of JMBM's Global Hospitality Group®. The panelists were:

Guy Maisnik, Vice Chair, JMBM's Global Hospitality Group® works extensively on hotel joint ventures and financings, as well as acquisitions.

• Mark Burden, CEO, Rim Hospitality
• Lamont Meek, SVP and COO, Circa Capital
• Rick Frank, SVP Hospitality, Behringer Harvard
• Jonathan Martin, VP, AEW Capital Management
• Kam Babaoff, Managing Director, Ensemble Hotel Partners

Each of these participants has a long history of investing in and operating hotels, and they represent the spectrum of views currently prevailing in the industry. While each has been successful, each has taken a different road to achieve success. The individual strategies and approaches of each stands out, as does the talent and vision necessary to navigate some of the toughest years in the hotel industry.

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Posted In: Buying and Selling a Hotel , Hotel Development , Hotel Finance − Hotel Debt & Hotel Equity , Meet the Money®

By Jim Butler and the Global Hospitality Group®
Hotel Lawyers | Authors of www.HotelLawBlog.com
18 May 2012

DOJ extends pool lift deadline

Today, the Department of Justice announced that it is extending the ADA pool lift deadline from May 21, 2012 to January 31, 2013.

Amendment to ADA regulations

This morning, the DOJ formally published an "Amendment of the Americans with Disabilities Act Title II and III Regulations to Extend Compliance Date for Certain Requirements Related to Existing Pools and Spas Provided by State and Local Governments and by Public Accommodations" (ADAAG Sections 242 and 1009 Standards for Accessible Design).

The new pool lift Compliance Date is January 31, 2013. The Amendment acknowledges that the DOJ's January 31, 2012 technical advisory caused "significant concerns and misunderstandings among a substantial number of pool owners and operators" with respect to the new technical requirements for pool lifts.

Background to the extension

The DOJ recently received and carefully considered comments from pool owners, operators and various industry groups and clarified a number of popular misconceptions about the new requirements. At the end of the day, the DOJ seems to have heard the public outcry, in part.

In its Technical Advisory Document of January 31, 2012, the DOJ sent tsunami-sized waves through the hospitality and pool and spa industries when it announced, for the first time, its interpretation that pool and spa lifts are required to be "fixed" (as opposed to portable) next to the pool or spa at all times the facility is open, unless it is not "readily achievable," and they cannot be shared between water elements.

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Posted In: ADA Defense and Compliance