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1 Anatomy of the Landlord-Tenant Relationship Within the Retail Context: Two Sides, Two Priorities Eric C. Cotton DDR Corporation 3300 Enterprise Parkway Beachwood, OH (216) (216) [fax] Alicia M. Trinley Office Depot, Inc North Military Trail Boca Raton, FL (561) Noble F. Allen Hinckley, Allen & Snyder LLP 20 Church Street 18th Floor Hartford, CT (860) (860) [fax]

2 Eric C. Cotton serves as associate general counsel for DDR Corp., a publicly traded real estate investment trust based in Cleveland, Ohio, where he oversees the company s litigation matters. He previously served as general counsel for Equivest Finance Inc., based in Syracuse, New York. Mr. Cotton has also held positions in the legal departments of the Pyramid Companies and the Edward J. DeBartolo Corporation. Alicia M. Trinley is a senior litigation counsel for Office Depot Inc. in Boca Raton, Florida. She is responsible for handling all personal injury and real estate litigation in the United States and Canada. Previously, Ms. Trinley was a trial attorney with a Florida firm, where she litigated numerous civil cases for various insured defendants. She is a corporate member of the USLAW Network and the Association for Corporate Counsel, and a member of the Federal Bar Association and the Florida Bar. Nobel F. Allen is a partner with Hinckley, Allen & Snyder LLP in Hartford, Connecticut. He concentrates his practice in commercial litigation, commercial landlord and tenant law, premises liability defense and business immigration. Mr. Allen is the author of Connecticut Landlord and Tenant Law with Forms (Treatise), a member of DRI and the International Council of Shopping Centers (ICSC), secretary of the Retail Group Practice Section of the USLAW Network and a court-appointed member of the Connecticut Statewide Grievance Committee.

3 Anatomy of the Landlord-Tenant Relationship Within the Retail Context: Two Sides, Two Priorities Table of Contents I. Litigation-Proofing the Landlord-Tenant Relationship...13 A. Transparent Common Area Maintenance (CAM) Provisions...13 B. Manageable Use Clauses...13 C. Radius Restriction Defined...14 D. Co-Tenancy Provisions...14 E. Prohibited Uses...14 F. Workable Audit Rights...14 G. Flexible Sublease and Assignment Provisions...14 II. Constructive Problem Solving Between Landlord and Tenant Helpful Hints to Avoid Litigation...14 A. Exhaust Business-to-Business Dealing Before Cruising into Litigation Mode...14 B. Seek Advice of Counsel Before Exercising Remedies Under Lease...15 C. Independent Covenants for Landlords and Tenants...15 D. Review Complete Lease File Before Prosecuting or Defending Lease Disputes...15 E. Injunctive Relief...15 F. Employing Different Strategies When Dealing with Tenants...15 G. Rent Abatement if Tenant Has Skin in the Game...15 III. Dealing with Litigation Triggers and Bumps in the Road...15 A. Tenant-Oriented Triggers CAM Disputes/Sharp Bump-Ups in Rental Payments Audit Rights Exercised/Statute of Limitation Issues Co-Tenancy Monitoring Techniques Violation of Tenant s Exclusive Use Common Area Upkeep (Roof/HVAC)...16 B. Landlord-Oriented Triggers Rental Defaults Severely Late or Missed Payments Noncompliance with Sales Reporting/Percentage Rent Breakpoint Triggers Non-Monetary Defaults Mechanic s Liens/Alterations and Repairs Non-Monetary Defaults Insurance Compliance Breach of Lease Remedies Eviction, Monetary Damages, Injunctions...17 IV. Premises Liability Issues Indemnification...17 A. Indemnification Issues: Who Defends and Who Is Entitled to Be Defended? Location of Injury Snow and Ice on Sidewalks/Location and Condition of Cart Corrals What Elements Trigger Liability?...17 B. The Triumvirate: The Landlord/Tenant/Insurer Leases Provisions Certificates Of Insurance Denial of Claims/Bad Faith Claims Against Insurer...18 Anatomy of the Landlord-Tenant Relationship Within the Retail Context... Cotton et al. 11

4 V. Security Law Retailers Should Know...18 A. The Good Ole Days...19 B. The Here and Now...19 C. Prior Similar Crimes Test...19 D. Totality of the Circumstances Approach...19 E. Sliding Scale or Balancing Approach...19 F. Imminent Harm Test...19 G. Apportioning Liability...19 H. Things to Consider to Foster Safer Environments and Defend These Cases...20 VI. Conclusion...20

5 Anatomy of the Landlord-Tenant Relationship Within the Retail Context: Two Sides, Two Priorities Landlords and tenants share a symbiotic relationship. Although each has its own set of priorities and objectives, they both need each other in most instances to be successful. The lease agreement generally defines each of their obligations, but invariably disputes arise that are not easily resolved through a straight-forward interpretation of the lease. In some cases, the disputes may not even have been contemplated or anticipated by those who drafted the lease. Disputes that cannot be resolved at the business level end up in litigation. I. Litigation-Proofing the Landlord-Tenant Relationship A. Transparent Common Area Maintenance (CAM) Provisions Unlike the basic rent provision in the lease that is clear and transparent, the CAM provision for obvious reasons are less so. Most leases are triple net leases. That is, in addition to the basic rent, the tenant is also obligated to pay additional rental charges to cover insurance, real estate and other common area operating expenses. These CAM charges cannot be determined at the time that the parties enter into the lease, so the charges necessarily have to be estimated until such time that the final invoices are tabulated and the year-end adjustments are issued by the landlord: If the CAM estimate are more than the actual expenses, the tenant will receive a year-end credit; and if the estimates are less than actual expenses, the tenant is sent an additional bill to make up the difference. This is generally the genesis of CAM disputes. CAM disputes can be avoided or easily resolved if the CAM provisions are more transparent and clear above the tenant s payment obligation. If the landlord expects a huge capital expenditure in year two of the lease, the tenant should be provided with this information in advance so that they can easily anticipate and absorb the sticker shock. To be sure, some CAM charges are beyond the landlord s control (i.e., snow removal expenses; real estate taxes, etc.); however, for those CAM charges that can be predicted, the landlord has an obligation to provide full disclosure to the tenant in advance. B. Manageable Use Clauses A use clause or provision and an exclusive use provision are two distinct concepts. A use clause limits what the space can be used for, i.e., the demises premises shall be used for the sale of women s shoes and women s apparels. An exclusive use clause or an exclusive designates that tenant as the only tenant that can sell a particular product in the shopping center, i.e., Tenant shall be the sole retailer of women s shoes and women s apparel in the Shopping Center. A violation of a use clause may not necessarily affect a third party, however, a violation of an exclusive invariably involves a third party, and such violations are rarely caused by the landlord unless it was the landlord that specifically allowed another tenant to sell women s shoes and women s apparels. It is the landlord s responsibility to ensure that a tenant s exclusive use is not being violated by another tenant. This can be done by constant monitoring of its center, and taking prompt and decisive action when a violation is discovered. Anatomy of the Landlord-Tenant Relationship Within the Retail Context... Cotton et al. 13

6 C. Radius Restriction Defined A lease may contain a provision which states that it is a violation of the lease if the tenant operates another store within 2 miles of the Landlord s Shopping Center. Disputes often arise as to how a default would be enforced. Would the lease be subject to termination or would the landlord continue to enforce a percentage rent formula upon default? D. Co-Tenancy Provisions A co-tenancy provision in a lease requires the landlord to maintain certain square footage of the shopping center fully occupied or leased. A different variation of a co-tenancy clause may link a tenant s continuing occupancy of the shopping center to the continuing occupancy of another tenant, i.e., an anchor store such as Macy s or Sears. If the Landlord fails to maintain the required occupancy in the center, the tenant s remedies could range from rent abatement to the right to terminate the lease. E. Prohibited Uses These provisions are infused into leases to provide the landlord with exclusive control regarding the tenant mix in the shopping center. One such provision could read as follows: No part of the shopping center shall be used for: (i) a massage parlor; (ii) a billiard or pool hall; (iii) a bar not associated with a restaurant; (iv) an adult night club. F. Workable Audit Rights A tenant can reserve the right to review (or audit ) the landlord s books and records especially with regard to CAM charges and expenses. The landlord will generally attempt to set time limitations against such audit rights. For example, the landlord would agree that the tenant shall have the right to audit its books and records regarding CAM expenses up to one (1) year after the charges were invoiced and mailed to the tenant. The issue then becomes whether the tenant may still have the right to audit or review the landlord s books and records beyond the one-year limitation under a different legal theory. G. Flexible Sublease and Assignment Provisions It is encumbered on tenants entering long-term leases to negotiate flexible sublease and assignment rights. Landlords generally resist open-ended assignment or sublease provisions because they would prefer to select their own tenants rather than have tenants thrust upon them. Assignment provisions may contain items ranging from requiring the landlord to consent to any request for assignment or sublease by the tenant provided such consent shall not be unreasonably withheld to requiring an assignment fee, to an outright prohibition if certain criteria cannot be met by the assignee or subleasee. II. Constructive Problem Solving Between Landlord and Tenant Helpful Hints to Avoid Litigation A. Exhaust Business-to-Business Dealing Before Cruising into Litigation Mode Litigation cannot be the first option when a tenant or landlord violates a lease provision or commits a default. The leasing professionals who negotiated the deal in the first place should have an opportunity to resolve the nascent dispute. Oftentimes, the business professionals have a familiarity with each other that lawyers do not often share. 14 Retail and Hospitality Litigation and Claims Management Seminar May 2012

7 B. Seek Advice of Counsel Before Exercising Remedies Under Lease Unless the tenant has some leverage, a landlord will seldom negotiate a provision in a lease allowing a tenant the right to exercise self-help remedies in the event of a landlord s default. A tenant may be under the mistaken belief that it can withhold or abate rent from the landlord upon the landlord s default. However, a review of the lease or a review of landlord-tenant law in that jurisdiction may soon expose that misapprehension. Thus, before the tenant s Accounts Payable Manager withholds the upcoming monthly rent, he or she should seek further advice of counsel as to whether such a move is advisable. C. Independent Covenants for Landlords and Tenants Generally, leases contain separate and independent covenants. The landlord s obligation to repair the demised premises is mutually exclusive of the tenant s obligation to pay rent. A landlord s failure to make certain repairs should not cause the tenant to withhold rent unless the lease agreement and the law of that jurisdiction allows for such a remedy by the tenant. D. Review Complete Lease File Before Prosecuting or Defending Lease Disputes Retail leases are generally not monolithic. They contain many moving parts lease amendments, assignments, extension, estoppels, etc. A right given to the tenant under the original lease could have been clawed-back when the amendment was executed three years later. Conversely, a tenant may have negotiated the right to terminate the lease upon the occurrence of an event, which right was not part of the original lease. It is thus prudent to request the entire lease file first when a lease dispute arises before delving into the respective litigation strategies. E. Injunctive Relief Notwithstanding the lease provisions, some statutes in certain jurisdictions may allow this form of relief upon an event of default (i.e., Yellowstone injunction in New York). F. Employing Different Strategies When Dealing with Tenants Not all tenants are created equally. How a landlord deals with Walmart or Home Depot will be vastly different from how the same landlord will deal with Joe s Café. Consequently, this will be reflected in the landlord s litigation strategies. G. Rent Abatement if Tenant Has Skin in the Game In these economic times, rent abatement has almost become a term de jure. Landlords will not offer a tenant rate abatement simply to be benevolent. A tenant must demonstrate to the landlord that it has a skin in the game and is willing to hang on for the long haul. In exchange for considering rent abatement, landlords will demand certain concessions of the tenant such as lease extensions; deletion of co-tenancy provisions in the lease, or even an outright claw-back of a tenant s exclusive right to sell a particular product. III. Dealing with Litigation Triggers and Bumps in the Road A. Tenant-Oriented Triggers 1. CAM Disputes/Sharp Bump-Ups in Rental Payments An unusual increase in rent from one year to another will command a tenant s attention which in turn will lead to increased scrutiny of line-item CAM expenses in its invoices (see Section IA. above). Anatomy of the Landlord-Tenant Relationship Within the Retail Context... Cotton et al. 15

8 2. Audit Rights Exercised/Statute of Limitation Issues When a tenant s right to audit the landlord s books and records is exercised, the landlord will no doubt review the relevant lease provision to determine to what extent it has to comply with the tenant s request. If the request is consistent with the lease provision, the landlord has no other choice but to provide the tenant with books and records regarding the CAM expenses. However, if the tenant s request is tardy or goes beyond the confines of the audit provision, the landlord may push back and refuse the tenant s request. The issue then becomes whether the tenant still has that right under a different legal theory (i.e., a breach of contract claim which contains a more elastic time frame) to insist that the landlord comply with its request. In this instance, the laws in a particular jurisdiction will most likely determine which party will ultimately prevail. 3. Co-Tenancy Monitoring Techniques Some tenants are better at monitoring a landlord s violation of a co-tenancy provision than others. They seem to know exactly when the co-tenancy provision is triggered thereby resulting in certain concessions from the landlord. 4. Violation of Tenant s Exclusive Use As discussed in Section IB above, a violation of a tenant s exclusive use is generally manifested when a third party tenant decides to sell or carry products that were exclusively reserved for the infringed tenant. Leases have different remedies when this violation occurs, ranging from giving the tenant the outright right to terminate the lease (drastic), to compelling the landlord to seek legal remedies against the third party tenant through injunction or other similar legal options, to an abatement of rent while the violation is occurring. 5. Common Area Upkeep (Roof/HVAC) Most leases contain provisions in which the landlord is exclusively responsible for structural repairs such as the roof or HVAC systems atop of roofs. Failure of the landlord to repair these structural items may trigger an event of default which would be subject to an opportunity to cure. Landlords usually negotiate generous cure periods for defaults such as these to allow enough time to carry out the structural repairs before they can be exposed to being defaulted by the tenant. B. Landlord-Oriented Triggers 1. Rental Defaults Severely Late or Missed Payments Unless the tenant has enough leverage, a landlord will generally take an aggressive stance in the case of nonpayment of rent, and will consider litigation as a means of enforcing its rights and getting the tenant s attention. In the case of national tenants, litigation will not be pursued unless the upper level business people have exhausted all options to resolve the rental dispute. 2. Noncompliance with Sales Reporting/Percentage Rent Breakpoint Triggers Certain leases contain a percentage rent component to them in lieu of basic rent or in addition to basic rent. However, in order for this to work, the landlord must institute a mechanism for monitoring the tenant s monthly gross sales records to determine the percent of rent the tenant must pay to the landlord (i.e., the landlord is entitled to 5 percent of the tenant s monthly gross sales above $200,000). This is often called the breakpoint. If a tenant fails to make timely or accurate reports to the landlord, the landlord loses revenue and will seek ways to aggressively enforce that provision of the lease. 16 Retail and Hospitality Litigation and Claims Management Seminar May 2012

9 3. Non-Monetary Defaults Mechanic s Liens/Alterations and Repairs Unlike monetary defaults, non-monetary defaults such as failure to remove a mechanic s lien on the leased property will generally afford the tenant additional time to cure the default (i.e., 30 days) before the tenant would be considered in violation of the lease. These mechanic s lien issues are pesky to landlords because they often affect their relationship with their lenders who generally insist on the removal of all encumbrances such as liens before processing the landlord s pending loan applications. 4. Non-Monetary Defaults Insurance Compliance A tenant that is not in compliance with its insurance obligations under a lease may be in violation of its lease. Granted, larger tenants do not generally fall under this concern, but Mom & Pop tenants routinely fail to provide landlords with updated insurance documents (i.e., certificates of insurance designating the landlord as additional insured). The landlord wants assurances that it can seek indemnification from a tenant s insurer if a casualty happens in the tenant s demised premises and the landlord is later named as a defendant in that lawsuit. 5. Breach of Lease Remedies Eviction, Monetary Damages, Injunctions The remedies for breach of lease are governed by the specific default provision in the lease and also to some extent, based on the law of that jurisdiction. For example, if a lease is breached well before its expiration date, some leases may call for an acceleration of the rent. Most jurisdictions have laws regarding when a landlord is entitled to accelerated rent upon a tenant s breach, or even if the landlord must first demonstrate that it has mitigated its damages before seeking such relief. Similarly, although some leases may contain a remedy allowing the landlord to seek injunctive relief after a breach, some jurisdictions may prohibit such drastic measures. Eviction as a remedy for breach of lease would be exercised by a landlord as a last resort. IV. Premises Liability Issues Indemnification A. Indemnification Issues: Who Defends and Who Is Entitled to Be Defended? 1. Location of Injury The location of the injury would determine indemnification issues If the injury occurred within the demised premises it would be the tenant s responsibility, and if the injury occurred in the common area of the shopping center, then the landlord would generally take responsibility. From time to time the location of the injury is less clear and in those instances, a closer examination of the lease agreement and lease exhibits would be in order to determine demarcation issues. 2. Snow and Ice on Sidewalks/Location and Condition of Cart Corrals Specific lease provisions would generally determine whether the landlord or the tenant is responsible for maintaining contiguous sidewalk areas. In some instances, this responsibility is less clear even after reviewing the lease, and oftentimes such responsibility is assumed by the wrong party. Ultimately, when an injury occurs, the blame game begins and each party (through its insurer) would attempt to transfer liability to the other. 3. What Elements Trigger Liability? As noted above, the lease agreement should be the first source used to determine liability. Invariably, the account of the injury is not as clear as each party would like, so neither party will volunteer to defend a claim if the location where the injury occurred is undetermined or remains ambiguous. Anatomy of the Landlord-Tenant Relationship Within the Retail Context... Cotton et al. 17

10 Some landlord-friendly indemnification provisions in retail leases may contain language that expressly includes the landlord s own negligent act. However, such provisions are considered against public policy and thus invalid in a number of jurisdictions. Most indemnification provisions are drafted in such a way that they are limited to the party s own acts, and would expressly exclude indemnifying the other party s negligent acts. B. The Triumvirate: The Landlord/Tenant/Insurer 1. Leases Provisions Leases generally obligate either the landlord or tenant to notify the other in the event of a casualty. The notice provision must be strictly followed to prevent any claim by the other party (or its insurer) that proper notice was not given in accordance with the lease. 2. Certificates Of Insurance It is common for leases to contain a provision requiring the tenant to forward to the landlord within a few days of the execution of the lease, proof of the tenant s insurance status: coverage limits; separate lineitem coverages i.e., general liability coverage, workers compensation; all risk coverage, etc. In addition, the tenant is required to include the landlord as a named insured or as an additional insured or additional named insured. These designations afford different levels of protection, so it would be necessary for the landlord to review the tenant s insurance policy to ensure that the proper coverage has been designated for the landlord. It is also the tenant s responsibility from time to time to provide timely insurance updates and changes to the landlord, i.e., change of insurer; changes in coverage, etc. 3. Denial of Claims/Bad Faith Claims Against Insurer From time to time, either the landlord or tenant s insurer will refuse to defend or indemnify one of the parties even if the landlord or tenant believes that the other should be covered. In most jurisdictions, the duty to defend is much broader than the duty to indemnify, so that if the factual allegations in the complaint trigger coverage, the insurer is under an obligation to defend the party named provided that coverage was available before the occurrence. If the insurer refuses to defend (or later indemnify) either the landlord or tenant named as an additional insured, it will be bound by a subsequent judgment if the facts show that it did not have the requisite good faith belief that the party should have been defended. Different jurisdictions have different standards for what constitutes bad faith on the part of the insurer. V. Security Law Retailers Should Know Unlike other property law principals, there is a lack of uniformity in the law on the issue of negligent security from state to state. This is a difficult topic for retails and lawyers for three reasons. First, courts are second guessing the reasonableness of retailers conduct after the fact. For example, an accident involving a bizarre behavior becomes foreseeable once it takes place. With the benefit of hindsight, a jury can easily say more security should have been employed. Second, exposure in these cases is high. For example, sympathetic victims and heinous crimes are the recipe for high verdicts. Third, certain states do not allow apportionment of fault to the intentional actor (criminal). Therefore, knowledge is the first step in making informed decisions regarding maintenance and operation of retail stores thereby assisting in the prevention and defense of these cases. 18 Retail and Hospitality Litigation and Claims Management Seminar May 2012

11 A. The Good Ole Days Originally, the common law did not impose liability on owners of commercial premises for injuries sustained as a result of attacks inflicted by third persons (criminals). The idea behind the no duty rule was that the intentional act of the criminal constituted an independent superseding cause, which broke the chain of causation. In time, however, the law developed to encompass liability for these criminal acts. B. The Here and Now Foreseeability is the critical issue for these cases. When and under what circumstances a crime is foreseeable varies from state to state and generally is determined by one of four tests. The four tests are as follows: 1. Prior Similar Crimes Test; 2. Totality of Circumstances Approach; 3. Sliding Scale Approach; and 4. Imminent Harm test C. Prior Similar Crimes Test The prior Similar Crimes test prevails in Florida, Texas, Colorado, Georgia, Illinois, Massachusetts, Missouri and New York. This test is defined as whether previous incidents of a comparable nature have occurred that give the landowner notice of a likely repeat occurrence. D. Totality of the Circumstances Approach The Totality of the Circumstances Approach prevails in Indiana, Kansas, New Jersey, Ohio and Oregon. California fathered the law for the Totality of Circumstances Approach and then rejected it in 1983 for the Sliding Scale/Balancing Approach. The Totality of the Circumstances Approach is summarized as the foreseeability of a crime being perpetrated is not absolutely dependent upon notice of prior crimes of a similar nature at or near the premises, but should be determined form a totality of the circumstances. With this approach, the courts do not distinguish between crimes against property and crimes against persons because the lesser crimes predict bigger crimes. The nature, location, condition, and architectural design of the property are factors for consideration. E. Sliding Scale or Balancing Approach Sliding Scale or Balancing Approach prevails in California and Tennessee. With the Sliding Scale or Balancing Approach, the duty to provide protection from foreseeable third party harm is determined by balancing the foreseeability of the harm against the burden of the duty to be imposed. Thus, if the harm can be prevented by a simple means, a lesser degree of foreseeability is required. If there is a huge cost or burden than a greater degree of foreseeability is required. F. Imminent Harm Test The Imminent Harm test prevails in Alabama, Kentucky, Oklahoma, South Carolina and Virginia. The Imminent Harm test is defined as whether the retailer knew or should have known from circumstances that the incident was likely to occur. G. Apportioning Liability Some states prevent landlord owners from apportioning its liability against assailant/criminals. Florida is one state that prevents apportionment of liability to an intentional actor (criminal). Merrill Crossing Assoc. et al. v. McDonald, 705 So.2d 560 (Fla. 1997), involved a developer, retailer and gunshot victim. A third Anatomy of the Landlord-Tenant Relationship Within the Retail Context... Cotton et al. 19

12 party shot the plaintiff at a shopping center in Jacksonville, Florida. The trial court found Wal-Mart 75 percent negligent and the developer 25 percent negligent. The trial court refused to put the assailant on the verdict form and the Florida Supreme Court agreed. Other states allow apportionment against only a known assailant. California, New Mexico and Arizona are a few of the states that follow such rule of law. In Weidenfeller v. Star & Garter, 1 Cal. App. 4 th 1 (1991), the plaintiff was assaulted in a bar s parking lot. The defendant allegedly failed to provide adequate lighting. The jury found and the court confirmed 75 percent liability belonged to assailant and 20 percent liability belonged to defendant and 5 percent liability belonged to plaintiff. However, in other states, the courts will allow apportionment against an assailant, whether known or unknown. As you can imagine, states that prevent apportionment to the intentional actor to any extent, increase the risk of significant verdicts against commercial retailers. For the above reason and more, landlord and tenants can work together for the common good to ensure safe and vibrant shopping center and stores. H. Things to Consider to Foster Safer Environments and Defend These Cases Who is responsible for exterior building lights, exterior cameras, and parking lot lights? Does the landlord or tenant have an SOP, which requires operations to confirm on a regular basis that equipment is operating? For example, if exterior lights are attached to the building or are located in the parking lot, do they turn on at sunset? If a light is out, what is the procedure to see that it is properly fixed? Is there a monthly, quarterly, annual evaluation for exterior lights and cameras? Does the loss prevention department engage in these types of regular inspections for crossdocks and warehouses where large inventory is stored, but not for the retail stores? If so, it could lead to the argument that the company values its assets more than its customers. Does the landlord respond promptly when alerted to lighting issues? Does the landlord or tenant check the crime index after the lease is executed? If so, how often and what is done in the event the crime index has increased to a level at which the lease would not have been signed if that was the index level at the time of lease execution? These are just a few topics to provoke thought on the defensibility of one of these cases for you or your clients. VI. Conclusion The landlord-tenant relationship involves a compendium of complicated issues. The relationships that are successful reflect transparency, mutual compromise and steadfast resolve. The relationships that do not adhere to these principles are short-lived and contentious. 20 Retail and Hospitality Litigation and Claims Management Seminar May 2012

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