Hotel Law Blog

Published on: February 28, 2011

Buying a Hotel? Don’t buy an ADA lawsuit or DOJ Investigation

By Jim Butler and the Global Hospitality Group®

28 February 2011

Click here for the latest articles on ADA Compliance and Defense.
Click here for the latest articles on Buying and Selling a Hotel.
Many investors view our current economic downtime as the perfect opportunity to purchase distressed hotel and motel assets at substantial discounts. Before any of these investors complete a purchase transaction, however, they should add one more item to their due diligence checklist: whether the hotel’s physical property and operating procedures comply with the Americans with Disabilities Act (ADA), and similar state statues.

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Published on: February 23, 2011

Hotel Lawyer on Hotel Management Agreements: Exculpation Clauses for protecting the owner’s assets

By Jim Butler and the Global Hospitality Group®

23 February 2011

Important message about liability to hotel investors acquiring hotel assets and hotel owners renegotiating agreements with their operators:

Your hotel operator has most likely included indemnification provisions in the Hotel Management Agreement (HMA) designed to limit their liability for operating your hotel. On your operator’s draft of the HMA, it’s a good bet that a provision limiting YOUR liability does not exist in the agreement.

Don’t you think the liability limitations should be mutual? Here’s how to do it: the “”exculpation clause.”

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Published on: February 15, 2011

ADA Defense & Compliance Lawyer: How to handle an ADA lawsuit . . . and How not to do it

By Jim Butler and the Global Hospitality Group®

15 February 2011

Click here for the latest articles on ADA Compliance and Defense.

The hotel lawyers at JMBM’s Global Hospitality Group® see a lot of ADA cases and believe the claims will increase tremendously in the next few years as a result of the current political climate, new regulations, higher priorities assigned by the Department of Justice, and passionate private litigants seeking to make the world ADA-compliant.

We get several calls every week from people served with new ADA complaints. Most of these hotel and restaurant owners just want to resolve the litigation at the lowest possible cost, including both the compliance cost and legal fees. Of course they don’t want to be sued by another plaintiff on the same, or similar, claim a week later, but that is a somewhat different problem that we also deal with.

JMBM’s ADA defense team has defended more than 450 ADA claims. We know almost all the plaintiffs, their strategies, their hot buttons, and their weaknesses. We know how to defend or settle cases with the least exposure to future claims and at the lowest all-in cost.

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Published on: February 5, 2011

Hotel Lawyer: 5 key elements for good Hotel Management Agreement budget provisions

By Jim Butler and the Global Hospitality Group®

5 February 2011

Hotel Lawyer with more advice on Hotel Management Agreements, focusing on critical budget provisions.

For more than 20 years, the hotel lawyers of JMBM’s Global Hospitality Group® have negotiated, renegotiated, litigated, arbitrated and advised hotel owners on more than 1,000 hotel management agreements. Negotiating the hotel management agreement (or HMA) is one of the most important things hotel owners will ever do for their hotel investment. A good HMA can add significant value to a hotel property – and a bad one can detract significant value, as well.

The HMA Handbook is coming soon! We think that the HMA is so important, that our next book in the “We Wrote the Book” series will focus entirely on the hotel management agreement and will include the many critical components needed to achieving an HMA that is good for the owner as well as the operator. We have included numerous articles on hotel management agreements in the Hotel Law Blog over the years (Click here to access all of them), but this is the first article we have presented on HMA budget provisions. You won’t want to miss it.

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Published on: January 31, 2011

Hotel Lawyer: How improving fundamentals make 2011 the year of “Great Expectations” for the Hotel Industry

By Jim Butler and the Global Hospitality Group®

31 January 2011

Hotel Lawyer on the state of the hotel industry. At the ALIS conference last week, Smith Travel gave a great overview on the final results for 2010 as well as its outlook for 2011 and 2012. The numbers are very interesting!

Jan Freitag made the presentation at the ALIS conference. According to him, at the end of 2010, there were 52,000 hotels in the United States providing a total room supply of 1.7 billion rooms (a 2% increase in supply over 2009).

Great increase in demand. The demand for room nights grew a staggering 7.8% returning to the pre-bubble peak of 1 billion room nights sold during 2010, but with an increased supply of hotel rooms taking a share of the demand, occupancy only increased 5.7% to 57.6%, below the magic 60% occupancy level. Smith Travel hailed the demand growth, but noted that it does not expect to see this outsized growth again in the foreseeable future. In fact, as noted below, demand growth for the next two years is projected to be below 2% per year.

Disappointing lack of any meaningful rate growth. Unfortunately, the dramatic demand growth was not accompanied by a comparable increase in the average daily rate or ADR. In 2010, ADR was flat (actually down -0.1%) at $98, and still below the important $100 level. RevPAR increased 5.5% to $56.50 and room revenues increased 7.6% to $99.5 billion.

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Published on: January 27, 2011

Ask the Hotel Lawyer: 2011 is starting as the year of “Great Expectations” for the hotel industry!

By Jim Butler and the Global Hospitality Group®

27 January 2011

Hotel Lawyer with the pulse of the hotel industry from the ALIS conference in San Diego

After spending the past few days in San Diego at the Americas Lodging Industry Summit or ALIS conference, the hotel lawyers from JMBM’s Global Hospitality Group® have a pretty good sense of the “pulse” of the industry. Although attendance at the conference was down significantly from last year, as cost-cutting continues, the mood was decidedly more optimistic, and lots of people were actively working on deals or projects.

We thought the mood reflected a sense of “Great Expectations” – a relatively optimistic sense that the worst is clearly behind us, and that things will only get better from here, however slowly. Debt capital has reemerged for existing projects with established cash flows, and a decent project may get quite a few competitive bids. Property transactions are also happening across the spectrum. Foreign investment, particularly from China is fueling some of the acquisition activity. The REITs and equity buyers are also very active.

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Published on: January 20, 2011

Hotel ADA Defense & Compliance Lawyer: How a recent ADA case affects all hotels but particularly conference centers and meeting hotels

By Jim Butler and the Global Hospitality Group®

20 January 2011

Click here for the latest articles on ADA Compliance and Defense.

What do movie theaters and hotels have in common? For one thing, both movie theaters and hotels are considered “public accommodations” under the Americans with Disabilities Act (ADA) and both are required to provide disabled patrons equal access to facilities, including accessibility to movies, slideshows, and other audio and video presentations. In some instances, new technology can make it easier to achieve equal access… but it still can be a challenge.

A recent class action filed against Cinemark USA Inc. for discrimination against hearing impaired individuals due to lack of closed-captioning in theaters could have broad implications for hotels, particularly conference centers and hotels which cater to meetings and group business, in addition to hotels which cater to state organizations and governmental groups.

I was talking about this case the other day with my partner, ADA defense lawyer Marty Orlick. Marty is an expert in ADA defense and counseling, having defended owners and operators of properties in more than 450 cases. After a little collaboration, Marty put together a summary of the Cinemark case and its implications for the hotel industry. There is more to it than meets the eye.

What responsibilities do hotels have to deaf and hard of hearing guests? And what are the exceptions? How do hotels best protect themselves? How do hotels maximize business opportunities by providing auxiliary aides and services?

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Published on: January 8, 2011

Hotel Lawyer: So,You Think You Want to Buy a Hotel?

By Jim Butler and the Global Hospitality Group®

8 January 2011

Hotel Lawyer with advice for 2011: Hotel Investors, take note!

Like it or not, the stage is now set. This is the time. The year 2011 will present one of the greatest hotel buying opportunities for many years to come. And if you are not buying hotels this year, you will miss the window created by one of the biggest economic downturns in American history. What are the key indicators as to why this is a great time to by a hotel? And is price alone enough to justify the purchase, or are there other factors you need to think about? If the market is heading north, can you still make a bad purchase?

Hotel Lawyer Guy Maisnik, Vice Chairman of JMBM’s Global Hospitality Group®, who was the lead attorney for the Receiver in the recent sale of the Sheraton Universal Hotel, answers these questions and more.

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Published on: January 5, 2011

Sheraton Universal Hotel Sale Facilitated by JMBM’s Global Hospitality Group®

By Jim Butler and the Global Hospitality Group®

5 January 2011

Jeffer Mangels Butler & Mitchell LLP (JMBM), one of California’s foremost full-service law firms, today announced that its Global Hospitality Group® facilitated the sale of the Sheraton Universal Hotel to Shenzhen New World Group Co. JMBM represented the receiver and structured the sale so that the 20-story, 451 room hotel could be conveyed while the hotel was in receivership.

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Published on: January 3, 2011

ADA Defense & Compliance Lawyer Alert: Hilton’s ADA Settlement with the Department of Justice: Precedent-setting agreement delivers more than removing architectural barriers

By Jim Butler and the Global Hospitality Group®

3 January 2011

Click here for the latest articles on ADA Compliance and Defense.

Hotel ADA & Compliance Defense Lawyer update: We warned you about the Department of Justice (DOJ) conducting ADA “sweeps” in regions near you (Implications of the latest ADA enforcement “sweeps” against hotels in Portland and San Francisco, Is the DOJ’s ADA Compliance Survey Coming to Your City Soon? What to do when you receive the DOJ’s ADA Compliance Review questionnaire) but now we have information about the outcome of one such sweep.

Hilton Worldwide, Inc. and the DOJ came to an agreement on November 9, 2010 to make ADA changes to approximately 900 hotels internationally. Beyond the removal of architectural barriers, the changes include providing disabled guests the same room choices as other guests, guaranteeing accessible rooms will be available when they have been reserved, and making the central Internet reservation system more accessible. The agreement includes not only Hilton-owned properties, but properties where Hilton is the manager or franchisor. Click here to see the Hilton Consent Decree in US v Hilton Worldwide Inc.

Read on for a breakdown of what precedent-setting changes the Consent Decree contains and what accessibility issues you should consider before the DOJ visits your hotel.

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Jim Butler

Jim Butler is recognized as one of the top hotel lawyers in the world. He devotes 100% of his practice to hospitality, representing hotel owners, developers and lenders. Jim leads JMBM’s Global Hospitality Group® — a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion.
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Robert Braun

Robert Braun is a partner in JMBM's Corporate Department and a senior member of JMBM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Bob represents owners in both transactional and operational issues. He advises clients with respect to business formation, financing, mergers and acquisitions, venture capital financing, joint ventures and strategic partnerships. He has represented hotel owners in the negotiation of several hundred management agreements, as well as spa management and franchise agreements. Bob also advises hotel owners regarding telecommunications, software, internet, e-commerce, data processing and outsourcing agreements. To read Bob's articles, go to www.HotelLawBlog.com and select "Management Agreements." For more information, please contact Bob Braun at 310.785.5331 or rbraun@jmbm.com.

Marta Fernandez

Marta Fernandez is a partner in JMBM's Employment and Labor Department and a senior member of JMBM’s Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. As a management labor lawyer with more than 20 years of experience, Marta specializes in representing hospitality industry clients in all aspects of labor and employment including labor-management relations such as union prevention, collective bargaining for single as well as multi-employer bargaining units, neutrality agreements and defense of unfair labor practice charges before the NLRB. She defends employers in administrative and litigation claims, such as employee claims of sexual harassment and discrimination and counsels clients in preventative strategies such as executive training, arbitration enforcement, and policies and procedures. To read Marta's articles, go to www.HotelLawBlog.com and select "Labor & Employment." For more information, please contact Marta Fernandez at 310.201.3534 or at mfernandez@jmbm.com.

Guy Maisnik

Guy Maisnik is a partner in JMBM's Real Estate Department and a senior member of JMBM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Guy's deep and broad transactional practice includes complex real estate finance and venture capital transactions, including project finance, commercial finance, leveraged leasing and real estate acquisitions. He assists clients with development, leasing and disposition, loan portfolio acquisitions, loan and debt restructure, workouts and real estate exchanges. Go to www.HotelLawBlog.com for current information in these areas. For more information, please contact Guy Maisnik at 310.201.3588 or mgm@jmbm.com.

David Sudeck

David Sudeck is a Partner in JMBM's Real Estate Department and a senior member of JMBM’s Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. David has significant experience in the vacation ownership arena, focusing on the formation and registration of condominiums, timeshares and fractional interest regimes. He negotiates hotel, spa and restaurant management agreements, and assists client in the development, acquisition, sale and leasing of hotels, golf courses and restaurants. For David's take on current issues in the timeshare arena, go to www.HotelLawBlog.com and click on the topic, "Timeshare." For more information, please contact David Sudeck at 310.201.3518 or dsudeck @jmbm.com.

Robert Kaplan

Robert Kaplan is a partner in JMBM's Bankruptcy, Insolvency and Restructurings Group and a senior member of the Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Bob represents lenders, special servicers, hard money lenders, community banks, national banking associations, distressed debt investors, and equity investors, positioning them for the best possible outcome by acting expeditiously to preserve value and increase cash flow. His industry experience and his knowledge of the current capital markets -- where distressed assets often include complex deal structures and securitized loans -- allows him to bring creative and effective strategies to the table. When aggressive litigation is the best strategy, he is a vigorous and effective advocate for his clients. Bob represented the securitized lender in the Chapter 11 bankruptcy case filed by the Clift Hotel in San Francisco, and in the subsequent negotiations and successful sale of the loan to a third party. The lender -- acting by and through GMAC Commercial Mortgage Corporation as special servicer -- was the holder of a $60 million loan secured by a Deed of Trust on the Clift Hotel. He has also served as counsel to CapMark, J.E. Robert Company, Inc., AMRESCO Management Inc. and Midland Loan Servicer in their capacity as special servicers on troubled hotel loans in CMBS pools. For more information, contact Robert Kaplan at 415.984.9673 or rkaplan@jmbm.com.

Martin Orlick

Martin Orlick is a partner in JMBM's Real Estate Department and a senior member of JMBM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Marty specializes in representing hospitality industry clients in Americans With Disabilities Act (ADA) compliance and defense. He has represented more than 500 businesses in ADA issues, many of them hotels and restaurants, as well as hotel mixed-use properties. Marty is a member of the American College of Real Estate Lawyers (ACREL) and a frequent speaker on the ADA and other topics. To read Marty's articles, go to www.HotelLawBlog.comand select "ADA." For more information, please contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.

Scott Brink

Scott Brink is a senior member of JMBM's Global Hospitality Group® and a partner in JMBM's Labor & Employment Law Department. Scott is a management labor lawyer with more than two decades of experience representing employers in all aspects of labor relations and employment law including union prevention, collective bargaining negotiations, defense of unfair labor practice charges before the NLRB, wrongful discharge litigation, individual and class action employment discrimination and wage-and-hour claims, sexual-harassment litigation, arbitrations, personnel policies, California wage and hour law, and employee discipline and discharge. An experienced trial attorney, Scott has litigated a number of high-profile and complex cases involving a wide range of labor and employment law matters. For more information, contact Scott Brink at RSB@jmbm.com or 310.785.5365.

Travis Gemoets

Travis Gemoets is an experienced trial attorney and represents management in all facets of labor and employment law, including wage/hour class actions, claims of discrimination, harassment, wrongful termination, trade secrets and unfair competition, union/management relations and workplace violence. He is a member of JMBM's Global Hospitality Group(r), in which capacity he negotiates union contracts and resolves labor disputes throughout the country, defends class action claims, develops strategies for the mass onboarding and separation of employees, and recommends proactive changes to employers' policies and practices in order to minimize potential liability risks. Reach him at 310.785.5387 or tgemoets@jmbm.com.

Mark S. Adams

Mark S. Adams is an experienced trial lawyer and a member of JMBM's Global Hospitality Group® and Chinese Investment Group™. He focuses his practice on business litigation including contracts, corporate and partnership disputes, and hospitality disputes and litigation. On behalf of hotel and resort owners, Mark has successfully litigated the termination of long-term, no-cut, hotel management agreements, franchise agreements, fiduciary duty issues, investor-owner disputes, TOT assessments, and more. He has wide-ranging trial experience in a variety of commercial disputes, including complex multi-party litigation and class actions. He has tried numerous cases in state courts, federal courts, and in domestic and international arbitrations, and is a frequent author and speaker on trial practice. Mark's trial wins have been covered by Forbes, Reuters, and other publications. He has obtained two of California's annual 50 largest jury verdicts in the same year. Mark has taken or defended nearly 1,000 depositions throughout North America, Europe and the Middle East. He has been quoted as an expert on noncompete agreements in the Wall Street Journal. For more information, contact Mark at 949. 623.7230 or markadams@jmbm.com.

Bennett Young

Bennett Young is a partner in JMBM's Bankruptcy, Insolvency and Restructurings Group and a senior member of the Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. His clients include lenders, financial institutions, secured and unsecured creditors, distressed investment funds, businesses, receivers, special servicers and creditors' committees. Ben represented the owner of a partially completed multi-billion dollar resort property in the restructuring of its finances and has represented lenders to hotels and casinos. For more information, contact Ben Young at 415.984.9626 or byoung@jmbm.com

Sheri Bonstelle

Sheri Bonstelle is a partner in JMBM's Government, Land Use, Environment and Energy Department, and a member of JMBM's Global Hospitality Group®. She represents owners and developers in land use, zoning, environmental, litigation and construction matters. She manages all aspects of the entitlement process, including representing clients before local and state agencies, commissions and councils. Sheri also represents clients in a variety of land use and real estate litigation matters in state and federal courts, including cases arising under CEQA and other environmental laws. Her hotel experience includes handling the adaptive reuse of an historic office building as a luxury boutique hotel. For more information, please contact Sheri Bonstelle at 310.712.6847 or SBonstelle@jmbm.com.

Kevin McDonnell

Kevin McDonnell is a partner in JMBM's Government, Land Use, Environment and Energy Department, and a member of JMBM's Global Hospitality Group®. Kevin represents developers and owners of hotels in a broad range of land use and zoning issues including entitlements, code enforcement, easements and parking requirements, as well as related Parcel Map and Tract Map subdivision issues. His hospitality experience includes hotels, condo-hotels and mixed-use projects. A registered Civil Engineer and Structural Engineer in California, and a former building official for the City of Los Angeles, Kevin brings unique experience and insight in Zoning and Building Code applications and Code Enforcement issues. For more information, please contact Kevin McDonnell at 310.201.3590 or kkm@jmbm.com.

Jamie Ogden

Jamie Ogden is a tax lawyer at Jeffer Mangels Butler & Mitchell LLP. He advises individuals and businesses on a range of tax planning, tax controversy and estate planning matters. Jamie’s experience includes all tax aspects with respect to the hospitality industry, including acquisitions and dispositions (including Section 1031 exchanges), financing and management agreements. He also serves as lead tax counsel on M&A transactions, financing, internal corporate restructurings and deferred compensation matters. Jamie also works frequently with litigators on the tax aspects of litigation, judgments and settlements. Jamie has extensive experience with foreign compliance matters, including each variation of the IRS amnesty programs. In addition to his experience in private practice, Jamie also brings several years of service from both state and federal government. For more information, contact Jamie at JOgden@jmbm.com or 310.201.3510.

Wei Deng

Wei Deng is General Counsel of Bosen American Capital, Inc. where in addition to his legal duties, he is responsible for sourcing, evaluating and proposing United States investment opportunities to the company. Wei was previously with JMBM, where he focused on transactional and litigation matters.

Jay Thompson

Jay Thompson has extensive experience representing private companies, business owners, family offices and investors in mergers and acquisitions, private equity and venture capital transactions and private securities offerings. Jay serves as general counsel to many of his clients, their management, and board of directors, helping to shape and execute their business strategies, facilitate growth and liquidity, as well as to advise them on day-to-day legal and other strategic issues. He is known for his practical approach to business issues. Contact Jay at JThompson@jmbm.com or 949.623.7258

Marianne Martin

Marianne Martin has nearly fifteen years of experience advising clients on a variety of commercial, financing, bankruptcy, restructuring and M&A matters, with a particular niche dealing with distressed and/or turnaround situations. Her clients frequently include private equity and hedge funds, independent sponsors, family offices, public and private corporations, financial institutions and banks, healthcare-related companies, municipalities and venture capital funds. She has represented clients in various capacities, including as borrowers/debtors, lenders, acquirers, and agents/trustees in negotiating and documenting complex commercial transactions, out-of-court restructuring transactions and advising on purchasing considerations in secondary market debt transactions. Contact Marianne at MMartin@jmbm.com or 310.201.3531

Trevor Countryman

Trevor Countryman is an associate in the firm's Real Estate Department. He advises clients in all aspects of real estate transactions including property acquisitions and dispositions, financing, leasing, development and construction. Trevor's clients range from large funds to individual developers and opportunistic investors, engaged in deals involving office, retail, multi-family, single-family, mixed-use and hotel properties. Contact Trevor Countryman at 310.201.3546 or TCountryman@jmbm.com.

Vanessa Han

Vanessa Han is an associate in JMBM's Corporate group. Vanessa can be reached at VHan@jmbm.com or 310.785.5383

Vince Farhat

Vince Farhat is Chair of JMBM's White Collar Defense and Investigations practice. Vince has extensive jury trial experience and focuses his practice on representing companies and individuals in criminal and civil investigations and prosecutions by government enforcement agencies, as well as complex federal litigation. He also advises companies in connection with complex and sensitive internal investigations. Prior to joining JMBM, Vince served as an assistant United States attorney in the Major Frauds Section of the U.S. Attorney's Office for the Central District of California. Contact Vince Farhat at 310.785.5382 or VFarhat@jmbm.com.

Sarah G. Hartman

Sarah G. Hartman is a partner in JMBM's Litigation Group and a member of JMBM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. Sarah is an experienced litigator who advises and represents clients through all aspects of litigation, from inception through trial and appeal. She advises and represents clients in the hospitality industry, including the termination of hotel management agreements and franchise agreements. Sarah also advises and represents clients on women's health technology issues, intellectual property matters, and complex commercial disputes, including breach of fiduciary duty, fraud, breach of contract, unfair competition, products liability, employment litigation, class action defense, false advertising and other complex financial disputes. Contact Sarah Hartman at 949.623.7243 or SGHartman@jmbm.com.

Michael H. Strub, Jr.

Michael H. Strub, Jr. is a partner in JMBM's Litigation Group and a member of JMBM's Global Hospitality Group® -- a team of seasoned professionals who have helped clients around the world with more than 4,700 hospitality properties worth more than $125 billion. He is a highly skilled trial and appellate attorney who has handled high-stakes, complex commercial and business cases for 30 years including disputes arising out of hotel construction, lending, and bankruptcy. In addition, he has represented plaintiffs and defendants in business and commercial disputes in a variety of areas. Contact Michael H. Strub, Jr. at 949.623.7233 or MStrub@jmbm.com.

Ask the Hotel Lawyer™ is a quarterly column that I write for JMBM's Global Hospitality Advisor®. If you have a question you would like to submit to Ask the Hotel Lawyer™ please use the comments box below. While your question may not be of sufficient general interest for the column, I will try to respond to you individually if you leave your contact information below.
Jim Butler.

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