Practice Areas
Practice Areas

Retail Industry

Practice Leader: Barry M. Abelson

Few industries are as vital and competitive as retailing. Retail clients need a law firm capable in virtually all areas of the law, with the size and skills necessary to respond rapidly to the challenges and opportunities of business. They need a law firm knowledgeable of and experienced in their industry. In short, they need a law firm like Pepper Hamilton LLP. We help retail clients conduct business transactions, resolve disputes and navigate government regulation so that they can grow and prosper. Whether you are seeking capital, restructuring your business, dealing with workforce issues, trimming your tax burden or settling a dispute, chances are a Pepper lawyer has already handled a case or transaction like yours.

Below is an outline of the services we most frequently provide to retail clients.

Corporate and Securities

We assist clients with mergers and acquisitions, joint ventures and partnering arrangements, public and private securities offerings, restructurings and reorganizations, and venture capital and other financing transactions. Frequently, these transactions involve such disparate legal areas as environmental, real estate, labor and employee benefits. Our transactional lawyers regularly team with lawyers in these and other practice areas to resolve client problems. For example, our corporate and securities lawyers work closely with the firm’s tax group to employ structures designed to maximize the tax benefits available to our clients. Corporate lawyers also work closely with the intellectual property and antitrust practice groups in advising clients on licensing, technology transfer and other transactions.

Recent representative examples of our corporate and securities work in the retail industry include:

  • a well-known Philadelphia-area restaurant group
  • a manufacturer of licensed sports-team apparel
  • an investment group that acquired fast food franchises
  • represented a gift store chain in its IPO, one of the few in the retail industry in 2002
  • represented Intelligent Electronics, Inc. in its $200 million purchase, and subsequent $270 million sale, of BizMart, Inc., a superstore office supply company
  • represented a leading specialty retailer of maternity clothing in consecutive acquisitions of a public and a private company
  • represented a leading specialty retailer of maternity clothing in stock offerings and private placements of high yield notes
  • represented a buyer in an acquisition of a 75-store specialty retailer
  • represented a Boston-based private equity firm in a $75 million leveraged recapitalization of a specialty retail chain
  • handled the leveraged acquisition of a chain of women’s apparel shops and its subsequent public offering by a syndicate led by a large Midwest investment banker.
Human Resources Law

Human Resources Law is one of Pepper’s major practice segments, spanning all of our offices. Our practice is organized and designed to support clients in all aspects of human resource management. Our lawyers help design compensation and benefits plans, engage in strategic counseling, develop employment policies, and guide clients through difficult employee problems. When necessary and unavoidable, we litigate employment and employee benefits cases on an individual as well as a class basis.

Our Human Resources practice includes the following:

Labor and Employment
  • strategic counseling in acquisitions, mergers, reductions in force and consolidations covering employee and union issues
  • employment practices counseling involving the development of human resource policies to address legal requirements and liability issues
  • preventive counseling in promotions, demotions, discipline and termination
  • representation of employers in all areas of management and union issues, including collective bargaining, union representation proceedings, handling of strikes and picketing, and unfair labor practice proceedings
  • employment litigation on an individual and class basis covering all areas of federal and state discrimination laws, wrongful discharge and related causes of action, including defamation claims
  • conducting preventive audits and representing clients in government audits and inspections, including OFCCP, Department of Labor, OSHA and USCIS
  • representation in administrative proceeding before various federal agencies (e.g., NLRB and EEOC) and state agencies, including state civil rights commissions, unemployment compensation departments and workers’ compensation proceedings.
Compensation and Benefit Design
  • counseling employers regarding design and administration of qualified and non-qualified employee benefit plans and executive compensation arrangements, including stock-based plans and stock purchase/stock option arrangements
  • advice regarding benefit issues arising from transfers of executives to and from the United States
  • counseling mutual fund managers regarding design and administration of prototype plans
  • providing support to national and regional consulting firms on technical matters for clients
  • counseling employers on design and administration of severance and downsizing programs
  • compliance review of defined benefit, defined contribution and 403(b) plans, and related compliance resolution filings and negotiations
  • counseling employers on design and administration of group health and welfare programs and on life insurance arrangements.

Employee Misconduct and Unfair Competition

  • drafting of employment agreements including non-compete, confidentiality and non-solicitation provisions
  • enforcement of restrictions on competition including injunction proceedings
  • investigation of employee fiduciary breaches and potential violations of ethics, insider trading and criminal law
  • assistance in defense of corporations and employees subject to SEC investigations and criminal prosecutions.
Employee Benefit Litigation
  • advice to and defense of employers and plan fiduciaries in class actions involving all aspects of defined benefit and defined contribution plan management
  • defense of claims (including class actions) involving benefit plan design that allegedly violates federal pension or equal employment opportunity laws
  • defense of benefit plan claims arising from corporate transactions, including mergers and spin-offs
  • defense of employers and insurers involving disability and group health plans
  • defense of medical malpractice claims related to employer-sponsored managed care arrangements
  • representation of employers in multiemployer plan withdrawal liability claims
  • representation of single employer and multiemployer plans and their trustees regarding fiduciary breach claims
  • representation of employees, fiduciaries and investment managers in Department of Labor audits and investigations.
Recent examples of work in these areas for retail clients include:
  • counseling a major supermarket chain on all aspects of its multiemployer employee benefits plan
  • designing and assisting in implementation of defined benefit pension plan and employee savings plan for large regional department store chain.
Real Estate

Our real estate lawyers, often with the assistance of Pepper lawyers in other practice areas (including banking, public finance, bankruptcy, construction, environmental, securities and tax), handle complex real estate matters on a regional and national basis.

Our practice involves the development, acquisition, disposition, leasing, financing, construction and syndication of industrial, commercial and residential real estate; real estate loan and partnership work-outs, foreclosures and bankruptcies; zoning and land use; the regulation of financial institutions; and real estate taxation.

We represent developers, real estate investment trusts (REITs), commercial and consumer lending institutions, Fortune 500 and closely held corporations, major nonprofit institutions, investment banking firms, commercial real estate companies, retail and hospitality businesses, small business investment companies, syndicated partnerships, and state and local governmental agencies.

Commercial Real Estate Acquisition and Development. We handle a full range of real estate transactions and represent clients in the acquisition, development, construction, leasing and sale of office buildings, shopping centers, single-use commercial properties, hotels, development parcels, residential and multifamily properties, and mixed-use projects.

Our engagements in this area include the acquisition and development of numerous downtown office buildings and suburban office parks, corporate headquarters facilities, build-to-suit manufacturing, warehouse and distribution facilities and industrial parks, residential multifamily complexes, mixed-use developments in office parks, single-family residential subdivisions, retail developments, hotels, condominium conversions, cooperatives, medical centers, assisted living communities, nursing homes and resort communities. We have experience in government contracts as well as construction funding and dispute resolution.

Commercial Leasing. Our commercial leasing practice extends from routine leases of office and retail space to complex office, industrial and shopping center leases. We monitor the latest legal and market developments to assure the highest quality representation of our clients.

Real Estate Taxation. We handle matters involving the myriad of federal, state and local taxes affecting real estate and the owners of real estate, including local engagements and those ancillary to real estate and commercial transactions. Such matters involve the tax assessment of real estate, use and occupancy taxes, and transfer and documentary taxes, as well as the validity and impact of liens on real estate relating to the gamut of federal, state and local taxes.

With regard to real estate transfer taxes, which can run as high as 5 percent of the value of a transaction in jurisdictions such as Philadelphia, we have had experience and success in creatively structuring or restructuring transactions to avoid or reduce such exposure.

Zoning and Land Use. We regularly handle all aspects of zoning and land use practice, including land development approvals, variances and special exceptions, zoning appeals and zoning code compliance.

Commercial Real Estate Financing and Workouts. Representing many types of lenders, our lawyers have closed billions of dollars in acquisition, construction and permanent real estate loans in virtually every state in the nation, including the securitization and pooling of many of these loans.

Our representation of institutional lenders includes restructuring and workouts of troubled real estate loans and the enforcement of lenders’ rights in delinquent loans. In our representation of owners and developers, we are regularly called upon to restructure and refinance borrowing entities, whether troubled or healthy, and to resolve disputes among partners or shareholders and between the entities and their creditors or investors.

Recent examples of real estate work for retail clients includes:
  • purchase of shopping centers, office buildings and apartment buildings in Pennsylvania, Virginia, Maryland, District of Columbia, North Carolina and Texas
  • leasing of office, retail and commercial space for landlords and tenants in Pennsylvania, Maryland, North Carolina, District of Columbia and Texas
  • analysis of real estate taxes payable by a large supermarket chain on all of its supermarkets, warehouses and office buildings in western Pennsylvania; filing of appeals, if warranted, to the local administrative agency as well as to the Court of Common Pleas and the Appellate Courts
  • representation of a developer in the development of a pharmacy chain and in zoning and land use matters in western Pennsylvania
  • analysis of real estate taxes payable by a leading convenience store chain on its convenience stores throughout western and central Pennsylvania. Filing of appeals and pursuing those appeals through the local administrative agency and Court of Common Pleas and Appellate Courts, if warranted.
Bankruptcy and Reorganization

Pepper’s Bankruptcy and Reorganization Practice Group handles a full range of debtor/creditor matters, regardless of the complexity, location, industry or market sector involved. Members of the Group, drawing on their own experience and the assistance of Pepper’s other practitioners, have addressed many complex subjects necessary to the successful resolution of bankruptcy and reorganization matters, including environmental, collective bargaining, transportation, leveraged buyout, toxic tort, pension, intellectual property, health care, financial institution, mortgage banking, real estate, construction/surety, insurance and tax issues.

The Group’s bankruptcy experience has developed over the years through the representation of substantial interests in complex business failures. Among those situations were the reorganization of the Penn Central and other railroads, the reorganization of Revco D.S., Inc., Phar-Mor, Inc. and other major drug store chains, the reorganization of Cumberland Farms, Inc., one of the largest convenience store chains in the United States, the reorganization of manufacturers such as A.H. Robins Company, Inc. and Interco Incorporated (a furniture, shoe and clothing manufacturing conglomerate), and several asbestos manufacturers whose products were involved in toxic tort litigation and the collapse of leveraged buyouts. In addition to the drug store and convenience store chains mentioned above, we have handled the reorganization of many retail businesses, including service station and auto parts chains, retail grocery chains, clothing chains, hardware chains, restaurant chains, department stores, candy stores, electronics and appliance chains, specialty food stores and discount department stores.

Commercial Litigation

Pepper’s Commercial Litigation Practice Group handles a wide array of complex commercial litigation and arbitrations, ranging from single-issue injunction cases to multi-million dollar contract disputes. The scope of commercial litigation is broad, and, as a result, each of our commercial litigators has handled a variety of business disputes. This experience enables us to assume responsibility for new matters quickly and efficiently. In addition to general commercial litigation, our lawyers are skilled in antitrust and competition litigation, securities and shareholder litigation, insurance and reinsurance litigation and white collar criminal defense.

Examples of cases involving clients in retail industries include:
  • Queen City Pizza v. Domino’s Pizza, Inc., 129 F.3d 724 (3d Cir. 1997); 124 F.2d 430 (3d Cir. 1997) — On behalf of a national franchiser, Domino’s Pizza, we obtained dismissal of an action alleging violations of Sections 1 and 2 of the Sherman Act.
  • UNITE v. Shopping Center Assoc., et al., Superior Court of New Jersey, Union County; Shopping Center Associates d/b/a Menlo Park Mall v. Beat the Wiz, et al., Middlesex County, Docket No. MID?C?225?96 — Successful defense of shopping center public access rules in cases of first impression following New Jersey Supreme Court decision granting limited public access rights in centers.
  • Louis Vuitton v. White, 945 F.2d 569 (3d Cir. 1991) — Represented Louis Vuitton in action against street vendors selling counterfeit Vuitton luggage; Court of Appeals reversed District Court’s denial of Vuitton’s application for a seizure order under the Trademark Counterfeiting Act of 1984.
  • representing a commercial tenant in a suit resulting from the tenant’s termination of a lease due to environmental conditions
  • representing a commercial tenant in a suit where the lease purpose was frustrated by a legal challenge to permit variances
  • representing a shopping mall owner seeking emergency relief to prevent a demonstration against a retail tenant.

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