Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Finding Uncertainty in Certain Damage Provisions
For years, careful landlords and tenants have used liquidated damages as a means to avoid the uncertainty of events beyond their control. If the tenant held over beyond its term, or the landlord breached the tenant's exclusive, liquidated damages were considered a dependable remedy to avoid costly and time-consuming litigation. Unfortunately, what seems certain to lease drafters is anything but certain when presented in court. A recent decision from the U.S. District Court for the Middle District of Georgia underscores that point.
In Big Lots Stores v. Gray Highway Partners, 2006 WL 692347 (M.D. Ga. 2006), the landlord entered into a lease with Big Lots that contained a restrictive covenant prohibiting it from leasing to any 'competing business,' including any 'dollar store operation.' Within a year, the landlord leased space in the center to a Dollar General store. Not surprisingly, Big Lots quickly filed suit, seeking to enforce the provision of its lease that permitted it to 'pay in lieu of Fixed Minimum Rent … monthly rental equal to the lesser of two and one-half percent of Gross Sales for such month.'
On a motion for summary judgment, Big Lots' vice president testified that its liquidated damages provision was 'based upon usual and customary standards in the retail shopping industry [including those] recommended by the International Council of Shopping Centers.' Unconvinced, the district court held that the clause was a penalty and not liquidated damages and referred the matter to trial to determine the amount of actual damages. This is probably not the outcome Big Lots expected when it inserted the liquidated damages clause into its lease.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?