Bass, Berry & Sims

Services Matters Attorneys	Retail Retail businesses, both publicly traded and privately held, face two challenges when hiring law firms. First, you need attorneys who have long experience with, and an in-depth understanding of, the retail industry. Unlike most law firms, Bass, Berry & Sims has a comprehensive practice team wholly dedicated to the retail industry. Second, you need attorneys who can address diverse legal issues that arise on multiple fronts in a variety of business situations. Bass, Berry & Sims deploys a multidisciplinary team providing counsel and guidance to retail clients on: Business transactions Raising capital Franchising a brand Resolving disputes Navigating government regulations Opening new locations or starting business operations in new markets Dealing with workforce issues Assessing tax liabilities Financing construction projects Analyzing potential sale/lease-back transactions Bass, Berry & Sims is a business partner as well as a zealous advocate. We look beyond legal solutions. We ask what it will take to ensure the success and profitability of our clients. We then implement legal strategies to help ensure success and profitability. Resources To ensure full service to our retail clients, on a daily basis Bass, Berry & Sims’ Retail Group taps the experience of our colleagues throughout the firm in: Construction Corporate (Mergers & Acquisitions, Private Equity, Corporate, Securities Offerings, Real Estate Capital Markets) Employee Compensation & Benefits Employment and Labor Financing Franchising Environmental Governmental Relations Litigation (Antitrust, Class Actions, Alternative Dispute Resolution) Real Estate Restructurings State and Local Tax Tax – Corporate Construction Our depth of knowledge includes such areas as: Negotiation and drafting of construction and design contracts and related documents Contract interpretation Contractor licensing issues Bid protests Delay and defect claims Environmental issues Mechanics’ and materialmen’s lien Design deficiencies Payment claims Bond claims Construction related legislation Corporate We represent clients in the retail industry across a broad range of transactional matters, including corporate finance, securities, mergers and acquisitions, corporate governance and contractual matters. As our practice is based on a client team approach, we regularly share industry information as well as transactional and operational best practices with one another and our clients in the industry. Because of our experience in a wide variety of transactions and our substantial deal flow, we have a comprehensive understanding of the issues retail companies face in accessing the capital markets, evaluating and executing growth strategies, and planning for and managing crises. We have represented buyers (both strategic and financial sponsors) and sellers in a wide variety of M&A transactions. We have also been engaged by boards of directors and committees of boards of directors to advise on diverse corporate issues and opportunities. We have substantial experience and can provide counsel to targets, acquirers, and investment banks in areas such as: Counsel to special board committees in large M&A and going private transactions Mergers and Acquisitions Corporate structure and governance Joint ventures and partnering arrangements Public and private securities offerings Venture capital and other financing transactions Conducting special investigations including accounting irregularities Audit committee composition and process Board independence and composition Securities law reporting and SEC compliance Codes of ethics Officer and Director compensation matters Section 16 reporting Board committee charters Restructurings and reorganizations Employee Compensation & Benefits We provide advice on the complete range of compensation arrangements both in a regular advisory role and during extraordinary corporate events - such as mergers and acquisitions and initial public offerings. On behalf of our public company clients, we provide legal advice on the disclosure requirements applicable to executive and director compensation and related party transactions. Employment & Labor Our employment and labor practice group represents numerous clients in the retail industry. We have extensive experience managing complex labor and employment litigation, such as wage/hour cases and collective actions that specifically affect the real estate industry, sexual harassment litigation, and internal investigations. We offer practical and candid advice along with legal solutions to the wide range of problems affecting the workplace. The practice includes all aspects of defense and avoidance of employment litigation including unlawful discrimination and harassment, retaliation, disability and leave issues under the ADA and FMLA, and breach of executive contracts. We also serve as lead counsel for major wage/hour collective actions and conduct preliminary client audits to avoid exposure. We provide supervisory training; advise, investigate, and respond to administrative charges; and defend employment litigation. We also represent employers in actions to preserve trade secrets and confidential information, and to enforce non-compete and non-solicitation agreements. Our traditional labor practice includes informational training and avoidance campaigns; defense of representational hearing and unfair labor practice matters before the National Labor Relations Board; contract negotiation and interpretation; and all aspects of grievance and arbitration matters. Environmental We guide our retail clients through complex environmental issues ranging from permitting and reporting requirements for manufacturing plants; generator liability under federal and state Superfund laws; investigations and remediation, and due diligence prior to the sale or acquisition of facilities. We know state environmental laws and regulations, including air and water pollution regulations. At the federal level, we participate in the regulatory process and assist clients in commenting on proposed regulations. Our vast litigation experience in federal and state court and before administrative agencies encompasses: Cost recovery Contribution actions Inverse condemnation claims Toxic tort actions Water rights Enforcement actions Financing We serve companies, developers, owners and financial institutions in diverse loan and other financing transactions, including: Asset-based loans Asset securitizations Industrial development project financing and other tax-exempt financing, with and without credit enhancement Financing and securitization of all types of loans Letters of credit Syndicated credit facilities Real estate and construction loans Sale of commercial mortgage portfolios Sale and leaseback transactions Tax-increment financing Franchising We have represented numerous franchisors and franchisees in all aspects of the franchise relationship, including franchise registration, drafting and negotiating unit franchise and area development agreements, advertising coops, franchisee-franchisor dispute resolution, antitrust counseling, trademark and other intellectual property issues, and securities as well as capital-raising transactions. The scope of our work includes: Drafting, reviewing, negotiating, and revising franchise, license, distributorship and dealer agreements (including single-unit franchise agreements and multi-unit area development agreements) with all related documentation Preparing and revising disclosure documents (including Uniform Franchise Offering Circulars) Designing and managing regulatory compliance programs, including state franchise registrations and renewals as well as filing of advertising Providing counsel regarding enforcement and termination issues arising under all various agreements Handling litigation and/or facilitating alternative dispute resolution, including mediation and arbitration Assisting clients in raising expansion capital through public and private equity and debt offerings Counseling clients on antitrust, tax, and intellectual property issues in connection with franchises Advising clients in all matters of structuring franchise distribution systems, including trademark licensing, tax issues, joint ventures, master franchising, direct franchising, and distributor terminations Governmental Relations We represent clients in their business relationships with state government agencies from the General Assembly to the several departments, agencies, boards, and commissions. Richard Lodge is a registered lobbyist for the firm's clients in the State of Tennessee. Mr. Lodge has been recognized by Business Tennessee magazine as one of the most effective, top-tier lobbyists for business interests. A current list of the firm's lobbyist registrations can be found (by lobbyist's name) on the Tennessee Ethics Commission Web site. Typically, all aspects of state government purchasing and contracting are handled by the firm – from initial inquiries to contract negotiations to resolution of appeals. Dick Lodge and David Esquivel are responsible for state purchasing and contract matters. The firm also actively supports economic development in, and business relocation, to Tennessee. We maintain a close relationship with the Tennessee Department of Economic and Community Development and we assist with state tax incentive availability, local government property tax abatement, and tax increment financing. Litigation (Antitrust, Class Actions, Alternative Dispute Resolution) We understand the stress that a lawsuit or investigation brings to any business. Accordingly, our goal is to achieve a resolution beneficial to the client as expeditiously as possible, while minimizing expense and disruption to the client's operations. We have represented both public and private retail companies from small, single-issue cases to “bet-the-company" disputes. Among our many areas of experience specifically relevant to the retail industry: Mediations Arbitration Administrative and regulatory proceedings Antitrust and trade practices Antitrust compliance Business disputes Class Actions Compliance with the Hart-Scott-Rodino Act Internal investigations Monopolization litigation Products liability Securities and shareholder litigation Real Estate Our practice touches all aspects of retail real estate. We represent retail and hospitality companies locally and nationally, including site-specific acquisition, leasing and development, master sale-leaseback facilities as well as company-wide leasing programs, development programs, and special initiatives. We frequently work hand-in-hand with in-house counsel to achieve the most coordinated cost-efficient results. We also have substantial experience representing developers, landlords, and property investors in connection with their acquiring, developing, and leasing of all types of retail real estate, including shopping centers, lifestyle centers, malls, and single-tenant retail buildings. These matters include acquisitions, entitlements, financing, construction, master declarations, easements and restrictive covenants, environmental problem-solving, joint ventures, and all other activities typically associated with the successful development of retail real estate. Because we represent so many different players, we can always see the big picture. We understand the needs of retailers. We also understand the needs of landlords and developers. This multifaceted approach lets us focus on the goals of each party with creative solutions to achieve win-win results on all sides of the transaction. We are also actively involved in the International Council of Shopping Centers (ICSC) and frequently attend its national, regional, and ICSC meetings. Our attorneys speak at these meetings; participate on ICSC boards and committees; and sponsor ICSC events. As a result, we have nurtured long-term relationships with the lead players and decision-makers in the retail real estate game. Restructurings We are involved in all aspects of restructuring and bankruptcy cases, from pre-bankruptcy negotiations to confirmation of a Chapter 11 Plan of Reorganization, including various types of litigation and mediation at both the trial and appellate levels. A significant portion of our practice also involves commercial loan workouts and representation of secured lenders in consumer cases, including foreclosure matters. State and Local Tax We represent retail companies in state and local tax matters, including the resolution of franchise and excise tax as well as sales and use tax issues. In many instances, we have worked with companies in the retail industry to resolve potential controversies regarding their Tennessee tax liability without the need for litigation. We have a good working relationship with the Tennessee Department of Revenue that enables us to resolve potential disputes without going to court. When litigation is necessary, we file suits and represent retail industry clients in court to seek properly determine tax liability. We have also represented several retail companies in their negotiations and communications with the Tennessee Department of Revenue to resolve potential tax disputes before any controversy arose. We have assisted various retail clients with formal rulings from the Department on a variety of issues, including whether sales qualify for the sale for resale exemption from sales tax; whether sales of software programming or other related services were taxable; and whether services or products delivered digitally were subject to tax; and the appropriateness of franchise and excise tax deductions taken for payments to affiliated intangible holding companies that monitor and enforce the trademarks, patents, and other intangible assets. We have also worked with many retail clients to analyze their sales operations to determine if they are at all subject to tax in Tennessee. Tax - Corporate We provide practical solutions to complex tax problems. We know the tax issues that confront public and private companies in the retail industry and we have substantial experience representing a variety of retail industry clients in complex tax matters. We have represented retail companies in mergers, acquisitions, recapitalizations, dispositions, and leveraged buy-outs, and we have significant experience in corporate and partnership tax planning. Additionally, we provide advice on the employee benefits and executive compensation aspects of business transactions and post-transaction integration. We frequently represent retail companies in connection with real estate tax issues, including tax-deferred exchanges, joint ventures, and loan work-outs. We also advise international retail clients with business operations both in the United States and overseas. < back

Retail

Retail businesses, both publicly traded and privately held, face two challenges when hiring law firms.

First, you need attorneys who have long experience with, and an in-depth understanding of, the retail industry. Unlike most law firms, Bass, Berry & Sims has a comprehensive practice team wholly dedicated to the retail industry.

Second, you need attorneys who can address diverse legal issues that arise on multiple fronts in a variety of business situations. Bass, Berry & Sims deploys a multidisciplinary team providing counsel and guidance to retail clients on:

Business transactions
Raising capital
Franchising a brand
Resolving disputes
Navigating government regulations
Opening new locations or starting business operations in new markets
Dealing with workforce issues
Assessing tax liabilities
Financing construction projects
Analyzing potential sale/lease-back transactions

Bass, Berry & Sims is a business partner as well as a zealous advocate. We look beyond legal solutions. We ask what it will take to ensure the success and profitability of our clients. We then implement legal strategies to help ensure success and profitability.

Resources

To ensure full service to our retail clients, on a daily basis Bass, Berry & Sims’ Retail Group taps the experience of our colleagues throughout the firm in:

Construction
Corporate (Mergers & Acquisitions, Private Equity, Corporate, Securities Offerings, Real Estate Capital Markets)
Employee Compensation & Benefits
Employment and Labor
Financing
Franchising
Environmental
Governmental Relations
Litigation (Antitrust, Class Actions, Alternative Dispute Resolution)
Real Estate
Restructurings
State and Local Tax
Tax – Corporate

Construction

Our depth of knowledge includes such areas as:

Negotiation and drafting of construction and design contracts and related documents
Contract interpretation
Contractor licensing issues
Bid protests
Delay and defect claims
Environmental issues
Mechanics’ and materialmen’s lien
Design deficiencies
Payment claims
Bond claims
Construction related legislation

Corporate

We represent clients in the retail industry across a broad range of transactional matters, including corporate finance, securities, mergers and acquisitions, corporate governance and contractual matters. As our practice is based on a client team approach, we regularly share industry information as well as transactional and operational best practices with one another and our clients in the industry.

Because of our experience in a wide variety of transactions and our substantial deal flow, we have a comprehensive understanding of the issues retail companies face in accessing the capital markets, evaluating and executing growth strategies, and planning for and managing crises. We have represented buyers (both strategic and financial sponsors) and sellers in a wide variety of M&A transactions. We have also been engaged by boards of directors and committees of boards of directors to advise on diverse corporate issues and opportunities.

We have substantial experience and can provide counsel to targets, acquirers, and investment banks in areas such as:

Counsel to special board committees in large M&A and going private transactions
Mergers and Acquisitions
Corporate structure and governance
Joint ventures and partnering arrangements
Public and private securities offerings
Venture capital and other financing transactions
Conducting special investigations including accounting irregularities
Audit committee composition and process
Board independence and composition
Securities law reporting and SEC compliance
Codes of ethics
Officer and Director compensation matters
Section 16 reporting
Board committee charters
Restructurings and reorganizations

Employee Compensation & Benefits

We provide advice on the complete range of compensation arrangements both in a regular advisory role and during extraordinary corporate events - such as mergers and acquisitions and initial public offerings.

On behalf of our public company clients, we provide legal advice on the disclosure requirements applicable to executive and director compensation and related party transactions.

Employment & Labor

Our employment and labor practice group represents numerous clients in the retail industry. We have extensive experience managing complex labor and employment litigation, such as wage/hour cases and collective actions that specifically affect the real estate industry, sexual harassment litigation, and internal investigations. We offer practical and candid advice along with legal solutions to the wide range of problems affecting the workplace.

The practice includes all aspects of defense and avoidance of employment litigation including unlawful discrimination and harassment, retaliation, disability and leave issues under the ADA and FMLA, and breach of executive contracts. We also serve as lead counsel for major wage/hour collective actions and conduct preliminary client audits to avoid exposure. We provide supervisory training; advise, investigate, and respond to administrative charges; and defend employment litigation. We also represent employers in actions to preserve trade secrets and confidential information, and to enforce non-compete and non-solicitation agreements.

Our traditional labor practice includes informational training and avoidance campaigns; defense of representational hearing and unfair labor practice matters before the National Labor Relations Board; contract negotiation and interpretation; and all aspects of grievance and arbitration matters.

Environmental

We guide our retail clients through complex environmental issues ranging from permitting and reporting requirements for manufacturing plants; generator liability under federal and state Superfund laws; investigations and remediation, and due diligence prior to the sale or acquisition of facilities. We know state environmental laws and regulations, including air and water pollution regulations. At the federal level, we participate in the regulatory process and assist clients in commenting on proposed regulations. Our vast litigation experience in federal and state court and before administrative agencies encompasses:

Cost recovery
Contribution actions
Inverse condemnation claims
Toxic tort actions
Water rights
Enforcement actions

Financing

We serve companies, developers, owners and financial institutions in diverse loan and other financing transactions, including:

Asset-based loans
Asset securitizations
Industrial development project financing and other tax-exempt financing, with and without credit enhancement
Financing and securitization of all types of loans
Letters of credit
Syndicated credit facilities
Real estate and construction loans
Sale of commercial mortgage portfolios
Sale and leaseback transactions
Tax-increment financing

Franchising

We have represented numerous franchisors and franchisees in all aspects of the franchise relationship, including franchise registration, drafting and negotiating unit franchise and area development agreements, advertising coops, franchisee-franchisor dispute resolution, antitrust counseling, trademark and other intellectual property issues, and securities as well as capital-raising transactions.

The scope of our work includes:

Drafting, reviewing, negotiating, and revising franchise, license, distributorship and dealer agreements (including single-unit franchise agreements and multi-unit area development agreements) with all related documentation
Preparing and revising disclosure documents (including Uniform Franchise Offering Circulars)
Designing and managing regulatory compliance programs, including state franchise registrations and renewals as well as filing of advertising
Providing counsel regarding enforcement and termination issues arising under all various agreements
Handling litigation and/or facilitating alternative dispute resolution, including mediation and arbitration
Assisting clients in raising expansion capital through public and private equity and debt offerings
Counseling clients on antitrust, tax, and intellectual property issues in connection with franchises
Advising clients in all matters of structuring franchise distribution systems, including trademark licensing, tax issues, joint ventures, master franchising, direct franchising, and distributor terminations

Governmental Relations

We represent clients in their business relationships with state government agencies from the General Assembly to the several departments, agencies, boards, and commissions. Richard Lodge is a registered lobbyist for the firm's clients in the State of Tennessee. Mr. Lodge has been recognized by Business Tennessee magazine as one of the most effective, top-tier lobbyists for business interests. A current list of the firm's lobbyist registrations can be found (by lobbyist's name) on the Tennessee Ethics Commission Web site.

Typically, all aspects of state government purchasing and contracting are handled by the firm – from initial inquiries to contract negotiations to resolution of appeals. Dick Lodge and David Esquivel are responsible for state purchasing and contract matters.

The firm also actively supports economic development in, and business relocation, to Tennessee. We maintain a close relationship with the Tennessee Department of Economic and Community Development and we assist with state tax incentive availability, local government property tax abatement, and tax increment financing.

Litigation (Antitrust, Class Actions, Alternative Dispute Resolution)

We understand the stress that a lawsuit or investigation brings to any business. Accordingly, our goal is to achieve a resolution beneficial to the client as expeditiously as possible, while minimizing expense and disruption to the client's operations. We have represented both public and private retail companies from small, single-issue cases to “bet-the-company" disputes. Among our many areas of experience specifically relevant to the retail industry:

Mediations
Arbitration
Administrative and regulatory proceedings
Antitrust and trade practices
Antitrust compliance
Business disputes
Class Actions
Compliance with the Hart-Scott-Rodino Act
Internal investigations
Monopolization litigation
Products liability
Securities and shareholder litigation

Real Estate

Our practice touches all aspects of retail real estate. We represent retail and hospitality companies locally and nationally, including site-specific acquisition, leasing and development, master sale-leaseback facilities as well as company-wide leasing programs, development programs, and special initiatives. We frequently work hand-in-hand with in-house counsel to achieve the most coordinated cost-efficient results.

We also have substantial experience representing developers, landlords, and property investors in connection with their acquiring, developing, and leasing of all types of retail real estate, including shopping centers, lifestyle centers, malls, and single-tenant retail buildings. These matters include acquisitions, entitlements, financing, construction, master declarations, easements and restrictive covenants, environmental problem-solving, joint ventures, and all other activities typically associated with the successful development of retail real estate.

Because we represent so many different players, we can always see the big picture. We understand the needs of retailers. We also understand the needs of landlords and developers. This multifaceted approach lets us focus on the goals of each party with creative solutions to achieve win-win results on all sides of the transaction.

We are also actively involved in the International Council of Shopping Centers (ICSC) and frequently attend its national, regional, and ICSC meetings. Our attorneys speak at these meetings; participate on ICSC boards and committees; and sponsor ICSC events. As a result, we have nurtured long-term relationships with the lead players and decision-makers in the retail real estate game.

Restructurings

We are involved in all aspects of restructuring and bankruptcy cases, from pre-bankruptcy negotiations to confirmation of a Chapter 11 Plan of Reorganization, including various types of litigation and mediation at both the trial and appellate levels. A significant portion of our practice also involves commercial loan workouts and representation of secured lenders in consumer cases, including foreclosure matters.

State and Local Tax

We represent retail companies in state and local tax matters, including the resolution of franchise and excise tax as well as sales and use tax issues. In many instances, we have worked with companies in the retail industry to resolve potential controversies regarding their Tennessee tax liability without the need for litigation. We have a good working relationship with the Tennessee Department of Revenue that enables us to resolve potential disputes without going to court. When litigation is necessary, we file suits and represent retail industry clients in court to seek properly determine tax liability.

We have also represented several retail companies in their negotiations and communications with the Tennessee Department of Revenue to resolve potential tax disputes before any controversy arose. We have assisted various retail clients with formal rulings from the Department on a variety of issues, including whether sales qualify for the sale for resale exemption from sales tax; whether sales of software programming or other related services were taxable; and whether services or products delivered digitally were subject to tax; and the appropriateness of franchise and excise tax deductions taken for payments to affiliated intangible holding companies that monitor and enforce the trademarks, patents, and other intangible assets. We have also worked with many retail clients to analyze their sales operations to determine if they are at all subject to tax in Tennessee.

Tax - Corporate

We provide practical solutions to complex tax problems.

We know the tax issues that confront public and private companies in the retail industry and we have substantial experience representing a variety of retail industry clients in complex tax matters. We have represented retail companies in mergers, acquisitions, recapitalizations, dispositions, and leveraged buy-outs, and we have significant experience in corporate and partnership tax planning. Additionally, we provide advice on the employee benefits and executive compensation aspects of business transactions and post-transaction integration.

We frequently represent retail companies in connection with real estate tax issues, including tax-deferred exchanges, joint ventures, and loan work-outs. We also advise international retail clients with business operations both in the United States and overseas.

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