As the “Legal” World Turns – Lessons Learned from ICSC Law Conference 2020

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Last month, not only did the International Council of Shopping Center (ICSC) host its 50th U.S. Law Conference, but, for the first time in its history, it did so virtually due to the impact of COVID-19! While some attendees were a bit apprehensive of how it would all work, the ICSC Law Conference Program Committee did an amazing job in making sure that not even COVID-19 would prevent this year’s conference from being a huge success, as 850 members of the retail real estate law industry logged into cyberspace from October 14 through October 16, 2020. However, it was very clear that while COVID-19 could not prevent the Law Conference from happening, the pandemic was featured in the many topics being discussed, as well as forcing most speakers to do their presentations from their own homes! 

It is no secret that this pandemic has taken a toll on the retail real estate industry as a whole, including how many of us are faced with new and uncertain challenges. This year’s speakers offered guidance in how to overcome the many obstacles we are facing in drafting or enforcing leases, including how we interpret force majeure, insurance and co-tenancy provisions, as well as how to protect ourselves and our clients against these issues in the future. Other sessions focused on litigation and trying to help restructure leases to avoid litigation and work with tenants in deferring or abating their rent when many retailers were forced to close or not able to operate. And for those retailers that were forced to close their doors forever, whether because they filed for bankruptcy protection, or decided their businesses could no longer survive during these uncertain times, there were sessions that provided guidance on exit strategies. Additionally, the conference offered sessions for those trying to understand the many governmental programs that are being offered, as well as trying to finance certain projects in our new COVID-19-world. 

One of the most popular and well-attended sessions was offered by our very own Derek Domian, who was a co-presenter on “COVID-19 from a Transactional Perspective: When Force Majeure Proves Inferior — Lessons from a Pandemic That Burned through Contract Boilerplate.” The discussion described how the traditional and often vague force majeure provisions caused more confusion than clarity during this pandemic. As a result, many of us are seeing our force majeure provisions change by specifying that these events would include “health emergencies” and “global pandemics.” In an uncertain time, it is certain that this provision will evolve over the course of the next year. Another popular session revolved around anticipating legal issues arising out of catastrophic events like COVID-19 and lessons learned from this, which included carefully reassessing boilerplate provisions like insurance and default and other non-boilerplate provisions like co-tenancy, to insure that if something like this happens in the future, your client’s interest are well protected. 

Although most people could not avoid mentioning the fear of another shut-down and it was hard to ignore the recent uptick in positive COVID-19 cases and deaths across the country, attendees used the conference as an opportunity to collaborate on ways to provide solutions on leasing, conveyancing, financing and adjusting to this new normal. Even virtually, the Law Conference continues to provide a wonderful venue for everyone in the industry to brainstorm, learn and network.

While no one knows what next year’s 51st Anniversary will look like, it is tentatively slated to be held in San Francisco next October and will be chaired (hopefully in person) by our very own Retail Industry Co-Chair, David Rabinowitz. Stay tuned!

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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