Articles Archives - Weintraub Tobin

Feast or Famine: The Importance of Contemplating Failure in Commercial Real Estate Transactions

Published: July 12, 2023

Every spring, usually on the first weekend of good weather, I rush to the local nursery and spend what feels like a week’s worth of wages on new plants, soil, fertilizer, and irrigation lines. I can’t wait to get the seedlings in the dirt, connect the water, and watch the home-grown, organic produce flow from Mother Earth based only on my sweat equity. And every summer, usually around the Fourth of July, I face the cruel realization that my green thumb was apparently lost at childbirth. The return on investment for 12 cherry tomatoes, 6 strawberries and a shriveled zucchini just isn’t there. Not everything goes to plan.

Spring Cleaning for Commercial Leases

Published: May 2, 2023

by Mark E. Ellinghouse

Spring is here! We finally have warmer weather, longer days, and the prospect of weekend plans not getting ruined by rain. If you’re anything like me, you were ready for the turn of the season after a very wet winter. What I wasn’t ready for was the inevitable assault on my senses, as pollen has suddenly filled the air and unleashed its annual crusade to dampen the optimism of spring. If I had remembered to start my Flonase and Claritin regime earlier, perhaps I wouldn’t be flying through tissue boxes as I sneeze and cough my way through the day.

Proposed Medicare and Medicaid Enrollment Rule for Skilled Nursing Facilities Implements Law Expanding Regulation of Private Equity Investments in Healthcare, Foreshadowing a Likely Trend

Published: February 17, 2023

by Jeanne L. Vance
The Healthcare Law Blog

On February 13, 2023, the Centers for Medicare & Medicaid Services (“CMS”) proposed a long-delayed regulation that would implement a provider enrollment provision of the Affordable Care Act that expands the information required to be disclosed by skilled nursing facilities (“SNFs”). The law requires that SNFs report detailed information to CMS regarding SNF relationships with private equity companies, real estate investment trusts and other real estate lessors, clinical consultants and providers of accounting and financial services during the provider enrollment process. The proposed rule was published in the Federal Register on February 15, 2023¹. The proposed changes are subject to comment; comments must be received by CMS by April 14, 2023. To become final, CMS would respond to these comments and issue a final rule thereafter.

New California Legislation Impacting Commercial Real Estate in 2023

Published: January 5, 2023

by Mark E. Ellinghouse

With the turn of the year comes ill-fated resolutions, needed but annoying rain, and a slew of new legislative enactments coming into effect. While commercial real estate is not typically a hotbed for legislative activity, there are a few noteworthy changes that may affect prospective projects, mostly focused on relaxing procedural requirements to incentivize the construction of new housing projects to combat the state’s ongoing housing crisis.

Is My Electronic Signature Enforceable?

Published: August 1, 2022

As a transactional lawyer, I’ve always found a special delight when the occasion arises to use one of my favorite sayings: “The pen is mightier than the sword.” It provides a certain level of self-importance that transactional attorneys enjoy in relatively few circumstances. But in today’s electronic world, where ballpoint pens may soon join VHS tapes and 8-tracks in the trash can, we’ve had to reassess whether that saying still holds water. If no one handwrites agreements, or almost anything for that matter, where does the power go that was otherwise held by the prestigious pen? Or (perhaps) more importantly, how can parties execute transaction documents without having to resort to printing and physically signing their documents, and can this be done electronically?

A Brave New World: The NCAA’s New NIL Policy and the Need for Federal Legislation

Published: July 11, 2022

©2022. Published in Landslide, Vol. 14, No. 4, June/July 2022, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

This article was written by Josh Escovedo and Michelle Yegiyants.

The landscape has changed. After decades of the NCAA reaping the benefit of college players, their labor, and their name, image, and likeness (collectively, NIL), the NCAA has changed its policy and allowed players to market their NIL without sacrificing their amateur status. However, the NCAA only made this change after a scathing U.S. Supreme Court ruling in a related matter, where the Court affirmed a decision from a U.S. district court enjoining the NCAA from limiting universities from providing student-athletes with certain education-related benefits.[1] In Justice Kavanaugh’s concurring opinion, he warned the NCAA that it should strongly reconsider its NIL-related policies before such matters are taken before the Court.[2] The Court issued its decision on June 21, 2021. The NCAA responded by changing its policy effective July 1, 2021.[3]

Overlooked Provisions when Negotiating Purchase and Sale Contracts

Published: June 8, 2022

by Mark E. Ellinghouse

In protracted contract negotiations, many clients become dismayed when a deal they thought had been agreed in a letter of intent is suddenly the subject of contentious exchanges between the parties and their counsel. The clients may be comfortable with the purchase price or due diligence timelines, but many clients have never considered, let alone negotiated, the various other critical terms in a purchase contract. These terms are often as, if not more, important, as they will define the scope of the parties’ rights relating to the transaction and exposure for lawsuits after closing. This article is designed to give a primer on the basics of these concepts so that parties may be better prepared when negotiating their purchase contracts at the letter of intent stage.

Real Estate Contracts: The Complex and Often Overlooked Indemnity Clause

Published: April 21, 2022

by Mark E. Ellinghouse

“Let’s leave that to the lawyers.” It’s a familiar refrain that I hear often as contract negotiations drag on between parties. After the primary deal points in a contract have been agreed upon, many clients believe that the remaining terms can be easily resolved without their involvement. Unfortunately, this is rarely the case, as what some clients perceive to be boilerplate or “standard” could become critically important if a dispute arises relating to the transaction.

COVID-19 Commercial Tenant Eviction Update

Published: February 4, 2022

by Mark E. Ellinghouse

As March approaches, we are poised to hit the two-year anniversary of California’s March 4, 2020, State of Emergency Proclamation relating to the COVID-19 health crisis. In the months that followed, we watched federal, state, and local governments adopt myriad laws, rules, emergency orders, proclamations, declarations, ordinances, and mandates, creating a patchwork of rules and regulations for commercial real estate that defied generalization or statewide compliance practices. The market may never look exactly like it did before COVID-19 (note our last article: to-go alcoholic drinks are here to stay!). As concern over the virus appears to be waning, we are seeing jurisdictions generally, but not uniformly, remove their COVID-19 commercial tenant eviction protections*. We therefore thought it would be appropriate to highlight a few of the notable policies which are in effect in some of California’s markets. Of course, most of the rules listed below have exceptions, and exceptions to the exceptions, so please consult your local laws (or counsel) before proceeding.

New California Laws Affecting Real Estate in 2022

Published: January 27, 2022

by Mark E. Ellinghouse

After surviving holiday family dinners, a few-too-many champagne toasts, and a record-breaking snowstorm, this team is ready to turn its sights to a new year and the exciting projects that are in store. To kick off our 2022 newsletter season (and hopefully in better fashion than the Sacramento Kings), we thought it would be helpful to summarize a few of California’s noteworthy new-for-2022 laws.[1] There aren’t any earth-shattering changes that will require substantial deviation to standard operating procedures, but some represent new requirements that will need to be considered in upcoming projects.