Articles Posted in Outlook and Trends

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29 September 2017
Click here for the latest articles on Resort Fee Litigation.

Note: If you are a consumer with a Resort Fee issue, please do NOT contact us! We do not represent consumers with complaints against hotels. We are part of the fabric of the hotel industry and are committed to informing, educating and assisting players in the hotel industry.

Impending eruption of government and private litigation over Resort Fees (mandatory service fees). Big shaking again. Is this the big one?

Two significant developments may signal an eruption of government and private claims over Resort Fees — (1) publication of the FTC 2017 Report and (2) commencement of proceedings regarding Resort Fees by a national task force of Attorneys General for 46 states plus the District of Columbia. This article focuses on the FTC Report. The next article will discuss the national task force.

The FTC issues its 2017 Report on Resort Fees

In January 2017, the FTC’s Bureau of Economics published a 44-page report entitled “Economic Analysis of Hotel Resort Fees” (the “FTC 2017 Report” or the “Report”).

The Report sets forth an aggressive regulatory position suggesting that it is a deceptive and misleading practice to advertise hotel rates without including Resort Fees, unless the total price (with Resort Fees) is the first and most prominently displayed price (in position and font characteristics) so consumers can easily comparison shop. It is not enough to disclose Resort Fees after the “room only” price even if this disclosure is made prior to booking a room. However, once the all-inclusive price has been disclosed, it is permissible to give a breakout of the total price into Resort Fee and other components.

The Report finds that “separating mandatory resort fees from posted room rates without first disclosing the total price is likely to harm consumers by increasing the search costs and cognitive costs of finding and choosing hotel accommodations.” The Report also finds that this drip pricing approach is unlikely to result in any benefits to offset the harm to consumers. Apparently, the Report’s authors find that the harm to consumers who may incur greater search costs and/or make incompletely informed decisions (and pay more for a room) justifies damages or enforcement actions under section 5 of the FTC Act.

Some highlights from the FTC 2017 Report

Here are some bullet point highlights extracted from the Report. CONTINUE READING →

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19 September 2017

As of January 1, 2018 owners of General Partnerships, Limited Partnerships or multi-member Limited Liability Companies may soon find themselves economically liable for the unpaid tax of former partners/members of those entities. JMBM Tax Attorney Jamie Ogden briefly describes the new audit regime, who it affects, and what you need to do to protect yourself from uncertainties.

 
Important tax news for owners of
Partnerships and LLCs
by
Jamie Ogden, Tax Lawyer
On June 13, 2017, the Treasury Department republished Proposed Treasury Regulations regarding the new partnership audit regime enacted as part of the Bipartisan Budget Act of 2015. Generally, the new partnership audit rules will be effective January 1, 2018.

As a result of the new partnership audit regime: (1) individuals and/or entities that were formerly owners of General Partnerships, Limited Partnerships and multi-member Limited Liability Companies (together “Partnerships”) during prior, audited tax years may escape liability for unpaid tax, and correspondingly (2) the existing owners of such Partnership (i.e., the owners of the Partnership at the time of the IRS collection process) will bear the economic burden entirely. Thus, in the absence of properly drafted Partnership and Operating Agreements, any existing owner of a Partnership may be economically liable for the unpaid tax of former partners/members of the Partnership. It is therefore critical that Partnerships and their owners review and modify their existing partnership and operating agreements immediately. CONTINUE READING →

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17 September 2017

EB-5, Mixed-Use Development and Deal Making: See you at the 2017 Lodging Conference

The Lodging Conference is taking place at the Arizona Biltmore in Phoenix, October 30-November 2, 2017, and hotel lawyers from JMBM’s Global Hospitality Group® will be there to visit our friends in the hospitality industry, share our knowledge, learn from the experts (and do some deals!).

At the conference, I will moderate the panel,  Navigating the EB-5 Landscape taking place at 4:00 pm on October 31st. Funding obtained through the EB-5 Immigrant Investor Visa program continues to play a vital role in the capital stack for new hotel development and we will provide up-to-the-minute information on the status of the program, as well as share some great success stories. To get up to speed on what’s happening with EB-5, check out my recent blogs.

Also from our team, JMBM Global Hospitality Group’s  Vice-Chair Guy Maisnik will speak on the panel Structuring Mixed-Use Development on November 1st at 11:30 am. Guy has represented developers and owners of hotel mixed-use properties for decades, and he will share his experience in financing, management agreements, and other critical issues. CONTINUE READING →

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10 May 2017

Hotel Real Estate: Forecasting Clear Skies with Some Clouds and Slightly Cooling Temperatures

For well over a decade, the members of the hotel industry’s preeminent think tank, “LIIC – The Lodging Industry Investment Council,” are annually surveyed to develop a list of the major hotel investment opportunities and challenges for the coming year.  This exhaustive survey results in the LIIC Top Ten; a highly regarded profile of investment sentiment and attitudes for the lodging industry for the forthcoming 12 months. Altogether, the members of LIIC represent direct acquisition and disposition control of well over $40 billion of lodging real estate.

Members are highly active and have the pulse of the market, with 45% of LIIC hotel investors having successfully purchased a hotel in the last 12 months and an additional 16% having made offers but not been the winner.  Moreover, 76% plan to sell a hotel over the next 24 months.

The hospitality industry’s most influential investors, lenders, corporate real estate executives, REIT’s, public hotel companies, brokers and significant lodging equity sources are represented on the Council.  LIIC serves as the leading industry think tank for the lodging business (www.liic.org).

Mike Cahill, LIIC co-chairman, produced this year’s survey (www.mikecahill.com).  Mr. Cahill is CEO and Founder of HREC – Hospitality Real Estate Counselors, a leading international hotel and casino brokerage and advisory firm (16 offices nationwide) specializing in lodging property sales, debt financing, consulting, appraisals and litigation support (www.hrec.com).  Nate Shartar and Alexander Cammarata, Associates in HREC’s Denver office, assisted throughout the process.

2017 Top Ten LIIC Survey Results

  1. Hotel Real Estate: Forecasting Clear Skies with Some Clouds and Slightly Cooling Temperatures: Overall, the 2017 LIIC Survey is more positive than 2016 and starkly different than the peak year survey in 2015.  Responses reveal a calmness, compared with wide spread nervousness in April 2016.  Chinese investment is expected (36%) to slow slightly and Brexit’s impact on US hotels is considered slight.  Private Equity followed by Listed REITs are predicted to dominate the purchase of Upscale to Luxury hotels; while, Regional Owner/Operators are projected to dominate the purchase of Economy to Upper Midscale hotels.
  2. Movement in the Hotel Real Estate Cycle?: Most investors (68%) believe we are still in the extra innings of the current cycle which began in 2009; however, an astute, highly intelligent minority (32%) believe we have begun a new cycle.  Projections for the US economy are positive, with 60% forecasting GDP growth averaging greater than 2% over the next 24 months.
  3. Asset Pricing Bid/Ask Settles, Values Flat to Maybe Increasing: Over the next 12 months, 54% project that lodging real estate values will be flat in comparison to 2016.  However, a sizable group (36%) forecast a slight increase in values (up to 5%).  Favorite investment target, Upper Upscale lodging properties.
  4. 2017’s Greatest Threats to Hotel Investment?: The top three threats on the horizon:
    • New Lodging Supply: 90% of LIIC members cited new hotel supply as the current and dominant top investment concern.  Hypocritically, 81% are building new lodging assets.
    • Increasing Interest Rates: With interest rates increasing gradually up to 100bps over the next 24 months, sellers need to understand the impact on asset pricing for hotels they are looking to sell.
    • Government Mandated Minimum Wage Increases: Investors (28%; down from last year) are threatened by government mandated minimum wage increases and the corresponding impact on hotel operating costs (74% anticipate a gradual negative impact over the next five years).
  5. Hotel Transaction Market Continues Slight Cooling: 52% of responders forecast the total dollar volume of U.S. hotel transactions in calendar 2017 will be down relative to year-end 2016 and 22% believe volume will be flat.  Similarly, 46% believe the number of assets sold to be down; while, 32% anticipate the number of assets sold to be flat.
  6. Hotel Debt Available, Yet Less Favorable: Hotel investors are “debt leery” causing 56% to seek refinancing of existing debt over the coming year even though 52% believe the optimum refinance window closed in the last six months.  Owners have more concern with interest rate increases on senior debt than lender’s available leverage percentages.
  7. Lodging Development Marches Along: Investor attitude stays positive on the concept of building new lodging properties.  As to developing hotels, 66% of LIIC responds “yes, if you are selective about product and markets”.  Respondents are putting their money behind their votes, with 81% of relevant LIIC members having new hotels actively under development.
  8. Want to Buy a Hotel?  Quantity and Quality:  Quantity:  42% of investors believe that a “below average quantity” of hotels are available for purchase closely followed by 44% at “average quantity.”  Quality (desirability to purchase):  52% believe the quality is average and 28% suggest negatively “slightly worse than 2016”.
  9. Markets NOT to Invest in?:  LIIC members were asked which of the top 25 markets they “would not consider buying a hotel” in: Houston, TX (64%), Nashville, TN (32%), Detroit, MI (28%), New York, NY (28%), St. Louis, MO-IL (28%)Sleeper – where to buy?  New Orleans! Not one vote against recorded.
  10. Marriott and Starwood Merger?  If you own a Starwood branded hotel, 36% surprisingly believe the value of Starwood lodging investments have increased specifically due to the merger.  On the other hand, the primary concern (22%) stressing hotel owners is decreasing negotiating leverage with Mega Marriott going forward.

CONTINUE READING →

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22 March 2017

Unless Congress acts in time, a critical part of EB-5 financing will lapse on April 28, 2017

The Regional Center program was enacted in 1992 as a “pilot project.” Since then, it has been renewed or extended many times by Congress, with the current extension due to sunset April 28, 2017. Combined with some negative comments by a few foes of the program, some have begun to wonder out loud if the end of EB-5 financing is near. And, if Congress does not act soon, it would have a serious impact on the program.

What will likely happen if Congress lets the EB-5 program sunset on April 28

Most people involved with the EB-5 industry believe there is little chance the program will not be extended or made permanent. This “pilot program” has been renewed for more than 20 years, and in the last five years has provided hundreds of thousands of jobs for US citizens, and billions of dollars of vitally needed capital for both public and private facilities that would not otherwise have been feasible.

The breakthrough on resolution could come next week (the week of March 27)

Since President Trump’s inauguration, the Administration and Congress have been focused on transition matters, appointments and confirmations, and related issues. However, insiders now believe that by the last week of March, EB-5 industry groups will be able to meet with members of Congress and work through some reasonable resolution of all concerns. A new bill is likely to be introduced shortly thereafter. CONTINUE READING →

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The Lodging Industry Investment Council (LIIC) met in Los Angeles during the American Lodging Investment Summit 2017 and our friends from Hotel News Now (HNN) were on the scene.

Some of us were asked by HNN for our take on where the hospitality industry is headed in 2017 — including my friend and fellow LIIC board member, Mike Cahill, who will present the “LIIC Top Ten” hospitality issues of the year at the national hotel finance and investment conference, Meet the Money®, as he does every year.

To read my comments about why 2017 will be a year of change, as well as comments by my associate, Wei Deng, regarding the impact the possible depreciation of Chinese currency could have on the industry, see HNN’s coverage: LIIC: Hot takes on industry hot button issues.

I was also interviewed in the video accompanying the article, regarding predictions for M&A in 2017 (as were my colleagues Phil Ribolow of Deutsche Bank, Mike Cahill of Hospitality Real Estate Investors, Andrea Foster of Marcus Hotels, and Gary Gray 24/7Hotels). My comments in that video are as follows:

“It must have been about 20 years ago at one of our Meet The Money® conferences, an industry leader predicted that in the next few years there would be two hotel companies. I don’t remember which ones they were – I think it was Hilton and Marriott. Interestingly, the consolidation – the urge to merge – has been extremely strong. And while one can look at the brands and think that the smaller brands – a Hyatt, a Wyndham – might be more prone to being acquired. I’m not so sure that’s true. The scale of capital that is available really makes the entire hospitality industry subject to acquisition. The urge to merge is inevitable.” CONTINUE READING →

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10 January 2017

I have often mentioned how much I enjoy working with all my friends and colleagues in the hospitality industry.  I am also fortunate to work with the talented, committed group of lawyers who comprise Global Hospitality Group®.  It is with pleasure that I let you know that one of our members, Brandon Chock, has been promoted to Partner at Jeffer Mangels Butler & Mitchell LLP (JMBM).

Brandon has a keen legal mind, more than 10 years’ experience in the world of real estate, finance and hospitality, an awesome work ethic and is an all-around pleasure to work with. I love having him on my team, and our clients love him on their team, too!

Brandon has played a key role in numerous hotel transactions, including: CONTINUE READING →

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31 December 2016

Yesterday, I had a delightful year-end lunch at the SoHo House with a remarkable man I have known and worked with about 25 years. I am very proud to call him my friend and include him amongst our “celebrity clients.”

When I first met this hotelier, he had recently left Four Seasons Newport Beach, and taken over the helm of the newly opened Beverly Hills Peninsula Hotel. With a hands-on intensity, he quickly turned around the financial performance at the hotel, earned the elusive 5 stars and 5 diamonds, and made the hotel the most profitable in The Peninsula Group with the highest guest return ratio in the market.

Ali Kasikci — a perfectionist’s never-ending efforts

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Yes, I am talking the legendary Ali V. Kasikci, named Independent Hotelier of the World in 2004 by HOTELS magazine and holder of countless industry awards for excellence.

From the Peninsula Group, Ali enhanced his already keen skills for hotel development, new hotel openings, and then building the team and instilling discipline to deliver unparalleled levels of service and profitability. Thus, Ali was a key member of the team that developed and launched the Montage Beverly Hills. Under his management, the new Montage (like the Peninsula before) also earned 5 stars and 5 diamonds in record time. CONTINUE READING →

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12 December 2016

EB-5 financing for developers extended. Obama signs “Continuing Resolution”

On December 9, 2016, President Obama signed the “Continuing Resolution” passed by Congress to extend funding of the federal government until April 28, 2017, by which time it is expected that Congress will have approved a budget for the full fiscal year.

EB-5 Regional Center program also extended to April 28, 2017

As with several prior budget extensions, the Continuing Resolution included an extension of the EB-5 program’s Regional Center provisions, validating expectations of industry experts.

This means that developers who followed our advice to “get in line” with their projects last fall (when some concerns over EB-5 renewal were raised) have either raised their EB-5 capital by now or should have plenty of time to do so before the current extension signed by President Obama runs out next April.

Why NOW may be the best time for developers to start EB-5 financing

Developers who followed our advice last fall have been well served. On August 16, 2016, we published a blog article entitled “Why NOW may be the best time for developers to start EB-5 financing.” We feel the same way today.

In our earlier article, we warned that there is always some uncertainty in predicting what Congress will do. However, all people that we know who are knowledgeable about the EB-5 program and the political environment believe that EB-5 will be renewed and continued in a viable form. Some developers are uncomfortable with the uncertainty created by short-term legislative sunsets on the extensions, and on accepting predictions that Congress will continue the program we have maintained since 1992 — almost 25 years. These developers want to wait until everything has settled down and has more certainty.

We believe the “wait and see” approach is a mistake for many developers — particularly those who are ready to start construction now. Here is why: CONTINUE READING →

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12 December 2016

I was recently interviewed by GlobeSt.com to discuss Chinese investment in the United States, including why the US is an attractive market for Chinese dollars, how it helps the US economy, and what it means for the Chinese market. Some selected excerpts from our conversation are below.

The driving factors behind Chinese foreign investment in the United States:

Chinese investors will deploy a record $212.7 billion in investments outside China. This trend is driven by a number of factors: Chinese real estate and stock market bubbles are bursting; The Chinese economy is slowing down so foreign investment (as in the US) are more attractive; The yuan has been depreciating against the dollar, making US dollar-denominated investments more attractive. Many Chinese investors, ranging from very wealthy individuals to insurance companies, find themselves with significant amounts of cash that need to be deployed into large, high-yielding investments. US commercial real estate is one of the few markets and asset types that can meet these requirements (large, high-yielding).

Chinese foreign investment has been encouraged by the Chinese government for building “soft power,” which is building the image of China and expanding its influence. Finally, many Chinese investors see synergies for using their foreign investment to take advantage of the Chinese market. Chinese travelers are expected to spend more than $72 billion at home and abroad in 2016. So everything related to travel, tourism, lodging, and entertainment plays into this growing market.

CONTINUE READING →

Contact Information
Jim Butler, Chairman
Global Hospitality Group®
Jeffer Mangels Butler & Mitchell LLP
(310) 201-3526 • jbutler@jmbm.com
www.HotelLawyer.com

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