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14 August 2013
Hotel Lawyers on “hotel condo” units as securities (or NOT).

An important decision on when a condo hotel does NOT involve the sale of a “security”

by

Jim Butler, Bob Braun and Guy Maisnik
Condo Hotel Lawyers

One of the most significant challenges for developers of a condo hotel project is whether the sale of the condo units constitutes the sale of a “security.” If it does, the principals and sellers of the project will have much greater compliance issues, costs and liabilities, which could make the project unworkable.

We have been advising clients on these issues in connection with more than 100 hotel mixed-use transactions since 2000. The deals usually have a significant residential component (condo hotels, hotel condos, single family homes or home sites, etc.) retail, entertainment and other uses added to a core hotel component. The Ninth Circuit opinion in Salameh v. Tarsadia Hotel (CA-9, No. 11-55479) discussed today provides a significant new level of comfort for all involved in such matters.

In an important decision yesterday (August 13, 2013) written by Judge Ronald M. Gould, a 3-judge panel of the Court of Appeals for the Ninth Circuit upheld the lower federal district court’s dismissal of plaintiff’s lawsuit arising out of their purchase of hotel condominium units at the Hard Rock Hotel San Diego, a “condo-hotel.”

The case was filed as a class action by Tamer Salameh and other named plaintiffs against some of the most respected people in Southern California’s hospitality industry, including Tarsadia Hotel, Tushar Patel, B.U. Patel, Gregory Casserly and other defendants. Notably, Playground Destination Properties, one of the first developers and most esteemed marketing companies for condo hotels, was also named in the action.

Essential to the plaintiffs’ claims was their characterization of their purchase as involving “securities” under the federal securities laws. They said that defendants offered condominium units together with a rental-management program, and doing so, constituted the sale of a “security.” The lower court dismissed the case after giving plaintiffs an opportunity to amend, finding that the amended complaint still did not state facts sufficient to find the existence of a “security.” The lower court also dismissed related common law fraud claims. For background on this issue and its importance, see “Condo Hotel Lawyer: Why does the SEC care about condo hotels?”
If you don’t know what a condo hotel is, or how it fits into hotel mixed-used, we have an entire section of HotelLawyer.com and HotelLawBlog devoted to condo hotels and to mixed-use. Just use the search bar at the top for any subject or click condo hotels or mixed use!

Why is this case important?

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11 April 2013

Click here for the latest articles on Data Technology, Privacy & Security.

Hotel Lawyer on technology challenges to your proprietary and sensitive corporate information. The continuing advances of technology continue to present a double edged sword. On the one edge are tremendous cost savings, efficiencies and power to manage information. On the other edge are daunting issues of information security and privacy.

In the article below, two of our Global Hospitality Group® lawyers talk about a recent court decision from the respected second circuit in New York that has important implications for every employer in the hospitality industry. It serves as a reminder that good employee handbooks and company policies are important to protecting your valuable business information and electronic data.

Here is what it is all about.

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29 March 2013

Hotel Lawyer on branding your hotel or running it as an independent. When should you brand your hotel and when should you leave it unbranded? How do you know when the benefits justify the costs? And if you decide to brand, should you go with brand management or an independent operator? What are the considerations?

Few decisions are more important. Here is hotel lawyer, Robert Braun to share some insights garnered by our Global Hospitality Group®’s experience in helping clients with more than 1,000 hotel management agreements and franchise agreements.


To Brand or Not To Brand
(your hotel)
by
Robert E. Braun | Hotel Lawyer

Why the hotel branding and management decisions are so important

One of the first decisions in the hotel development or acquisition process can have a lasting impact on the success of the project: whether the property should be branded, and whether that brand should manage the property. The hotel’s brand will be a defining part of the profitability, image and value of the hotel, and there may be no other decision which has a greater effect on the future of the property. Similarly, the management of a hotel can enhance the value of the brand, protect the owner, or detract from the value of the hotel — by as much as a 50% swing.

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8 March 2013

JMBM’s Global Hospitality Group® announces publication of the How to Buy a Hotel Handbook.

The Global Hospitality Group® of Jeffer Mangels Butler & Mitchell LLP (JMBM) today announced the release of the How to Buy a Hotel Handbook, third in the “We Wrote the Book™” series of handbooks published by the Group’s hotel lawyers.

Jim Butler is the Chairman of JMBM’s Global Hospitality Group®. The How to Buy a Hotel Handbook is based on the experience Jim’s team has gained from more than $87 billion of hotel transactions involving more than 1,300 hotels all over the world. The Handbook provides a detailed overview of the hotel acquisition process, a thorough due diligence checklist, and informative articles that address some of the most important questions that arise when buying or selling a hotel.

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16 February 2013

Hotel Lawyer on the Pros and Cons of dual-branded hotels

Dual-branding of hotels in a single structure or complex is quite a trend in the hotel industry and has been picked up by the popular press.

The hotel lawyers in JMBM’s Global Hospitality Group® have been working on dual-branded hotels for some time, so we thought we would share some our observations on the pros and cons of this approach.

My partner, Bob Braun, has worked on many hundreds of hotel management agreements and franchise agreements, and has written this article to provide an important update on this subject.

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5 January 2013

Click here for the latest articles on Data Technology, Privacy & Security.

Hotel Lawyer on how new privacy law enforcement may affect your mobile apps used in marketing. Hotel lawyer Robert Braun has an alert that may save you an unnecessary class action or troublesome lawsuit (or enforcement action). Although, the California Attorney General has started the furor, the impact of this approach will affect any company who deals with even one consumer in the state of California, and thus is likely to affect most of the hospitality industry in the United States, and many companies outside the US.

Here is what it is all about.
Privacy on the Move
California Imposes New Requirements
on Mobile Apps

by
Robert E. Braun | Hotel Lawyer
Hotel companies are actively entering the mobile application space as a means of gaining market share and solidifying guest relations. In addition to online travel agents like HotelsbyMe.com, a number of brands including Omni, Choice and Starwood have developed mobile applications. However, as mobile applications gain popularity, hotel companies should consider how privacy and security laws will impact how they can use those applications.

For companies with operations in California, that issue was highlighted on December 6, 2012, when the California Attorney General filed a lawsuit against Delta Airlines for failing to include a privacy policy with a smartphone application. The lawsuit, the first of its kind, alleges that Delta violated California law requiring online services to “conspicuously post its privacy policy” by failing to include such a policy with its “Fly Delta” mobile application.

The California online privacy law

In 2004, California enacted the California Online Privacy Protection Act (“CalOPPA”). This law requires operators of websites and online services to “conspicuously post” privacy policies about the personal information that is collected, how the consumer can access or request changes to personal information, how the operator of the site will notify consumers of changes, and the effective date of the policy.

In the case of an online service, “conspicuously posting” a privacy policy requires that the policy be “reasonably accessible…for consumers of the online service.”

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30 December 2012

Hotel Lawyer on the spike in reflagging hotels. It’s often good news for us when the business section of a major newspaper explains what is going on in the hotel sector. (And nice, too, when the paper includes a quote by yours truly.)

The topic? How and why hotel owners reflag properties. The reason for the story: the Great Recession has changed just about everything.

In the New York Times article, Dressing Up for Success, reporter Amy Zipkin says: “According to statistics from Smith Travel Research, a research firm in Henderson, Tenn., nearly 2,500 hotels were reflagged in 2011. While that represents just a 5 percent sliver of all hotel properties in the United States, it was still a 39 percent increase from 2010.”

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15 November 2012

Hotel Lawyer with the new “Resource Guide to the U.S. Foreign Corrupt Practices Act”

In the last few years, a lot of hotel transactions have been completed in foreign countries or involving foreign investors. The significance of international hotel transactions has soared and many businesses have found that some of the most attractive opportunities involve crossing international borders.

On November 14, 2012, the US Department of Justice (DOJ) and the Securities & Exchange Commission (SEC) issued a 130-page document which is the most comprehensive effort by these agencies to provide long-awaited guidance to respond to complaints from companies that have complained about the ambiguity of the Foreign Corrupt Practices Act (FCPA).

The article below is by hotel lawyer Bob Braun, a senior member of JMBM’s Global Hospitality Group®, who has been spending more of his time lately representing owners, developers and investors in international investments and transactions involving hotels, resorts, mixed-use developments and other hospitality-related projects. In this article, he reminds us why the FCPA should always be at the top of our minds when we pursue international transactions, as he gives us the background on the FCPA and the significance of the new Guide from the DOJ and SEC.

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20 October 2012

The hotel lawyers of JMBM’s Global Hospitality Group® frequently attend hospitality industry conferences to stay current on critical issues affecting hotel owners, investors and lenders. My colleagues, Guy Maisnik, Bob Braun and David Sudeck will attend the Boutique Lifestyle Leadership Symposium in Los Angeles next week.

EXTENDED BODY:

BoutiqueConf2012Announce.jpg

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7 October 2012

Click here for the latest articles on Data Technology, Privacy & Security.

Hotel Lawyer on hotels’ liability for failure to protect hotel guests personal identities

My partner Robert Braun advises hotel owners in a wide range of operational issues, including information management. Because of the ubiquitous use of credit cards by hotel guests during a stay, as well as the growing demand for WiFi availability, hotels have been increasingly targeted by identity thieves. In his article below, Bob explains how hotels’ liability for this new type of guest security has grown and what hotels can do to protect their guests’ identities.
Hotel Liability for Guest Information and Identity
What you need to know
by
Robert E. Braun | Hotel Lawyer
A version of this article was first published in the September 21, 2012 issue of Hotel Business and is reprinted with permission.

Not too long ago, keeping guest information safe was a fairly straightforward process – perhaps the most innovative development was providing an in-room safe for valuables. This approach made sense at the time, when guest security was a matter of securing people and their physical possessions.

The industry now recognizes that hotel guests have valuables to protect that go far beyond watches and wallets, or even laptops and iPads – – perhaps the most valuable information a hotel guest has is his or her identity, and unless a hotel actively safeguards it, those valuables are at risk. The ubiquity of credit card, wireless internet and other options, while essential to hotel operations, is also a source of insecurity.

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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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