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Simon Property Group Accused of Using Anticompetitive Tactics

By Chahira Solh on July 26, 2011
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Simon Property Group was sued recently for using anticompetitive tactics to prevent key retailers from following through with lease agreements. Gumwood HP Shopping Partners LP alleges that Simon has a pattern of abusing its power to bully its tenants into complying with its wishes. The suit asserts Simon engaged in monopolization, attempted monopolization and restraint of trade in violation of the Sherman Act.

In an antitrust lawsuit filed in Indiana on June 29, 2011, Gumwood claims that Simon improperly used its power as the largest public U.S. real estate firm to prevent retailers from opening stores at Gumwood’s Heritage Square mall in Mishawaka, Ind., because it would be in competition with Simon’s mall in the area.

In its lawsuit, Gumwood alleges the Simon commonly employs various threats to induce its retail tenants into complying with Simon’s wishes. One tactic is to refuse to renew existing leases or make renewals if a tenant opens stores in a competing development in another market. Another tactic employed by Simon is requiring a tenant to relocate a store without giving it an opportunity to renew an existing lease in order to prevent the tenant from opening a store in a competing center. In addition, Simon allegedly increases rates or makes renewal terms less favorable in retaliation if a tenant opens a store in a competing center. Simon allegedly used these anti-competitive tactics to the detriment of Gumwood.

The lawsuit stems from Gumwood’s attempts to sign leases with key retailers at its Heritage Square mall and Simon’s alleged attempts to prevent key retailers from opening locations at Heritage Square. According to the lawsuit, Gumwood entered into lease negotiations with a core group of key tenants, including Ann Taylor Loft. In its complaint, Gumwood noted that securing a tenant like Anne Taylor Loft would be important because other desirable tenants would be more willing to lease space if Loft opened a store at the mall. However, after Ann Taylor signed a lease with Gumwood, Simon allegedly began applying pressure on Anne Taylor, which already had several affiliated stores in various Simon properties, to not open a Loft store at Heritage Square. Ann Taylor terminated its lease agreement with Gumwood and later signed a lease for a Loft store at Simon’s mall in the area.

Gumwood claims Ann Taylor changed its mind as a direct and proximate result of Simon’s improper influence. Ann Taylor had many existing leases with Simon and had other deals it was negotiating with Simon and Simon allegedly used those deals as additional leverage to force Ann Taylor not to proceed with opening a store at Gumwood’s mall. As support for its claims, Gumwood alleges that a former Simon employee reported that Simon executives, including its president and chief operating officer, discussed at a meeting their intent to kill the Heritage Square deal with Ann Taylor.

Gumwood alleges that the loss of Ann Taylor as a tenant impacted the amount of rent it could charge other retailers as well as the types of retailers who were willing to open locations at Heritage Square. For example, while Eddie Bauer signed a lease with Gumwood, the loss of the Loft store and other tenants hurt the retailer’s profitability and as a result, Eddie Bauer required Gumwood to agree to a reduced rent structure as a result of the lack of required co-tenants.

Gumwood is seeking compensatory damages, treble damages, attorneys’ fees, prejudgment interest and costs.

Photo of Chahira Solh Chahira Solh

Chahira Solh serves as a trusted advisor on antitrust issues for a number of the country’s most recognizable companies, including in the auto, aviation, health care, and defense industries. Her practice focuses on all aspects of antitrust law, including litigation and government enforcement

…

Chahira Solh serves as a trusted advisor on antitrust issues for a number of the country’s most recognizable companies, including in the auto, aviation, health care, and defense industries. Her practice focuses on all aspects of antitrust law, including litigation and government enforcement actions, joint venture analysis, merger control, and affirmative recovery opportunities.  By approaching transactional and compliance issues with the eye of a litigator, Chahira is able to provide comprehensive legal and business advice that anticipates issues and mitigates future legal or business risks.

As a litigator, Chahira defends clients in civil antitrust litigation ranging from “no-poach” agreements, to allegations of exclusive dealing and tying, to minimum advertised price policies, to price fixing. Chahira also advises clients on affirmative recovery strategies that enable companies to recoup monies owed to them due to the illegal acts of competitors or from overcharges by the government. Chahira helps clients devise litigation strategies that advance and protect both their commercial and legal interests.

Clients also turn to Chahira to provide strategic counsel on a variety of antitrust matters, including merger clearance, joint ventures, trade association law, the Robinson-Patman Act, and distribution and vertical issues, including pricing policies.

Chahira is the Chair of the firm’s Executive Committee and a member of the firm’s Management Board. She is active in many professional organizations, including serving on the board of the Association of Business Trial Lawyers – Orange County Chapter and the Public Law Center.  She has been recognized as a “Southern California Super Lawyer – Rising Star” in Antitrust Litigation since 2009. Chahira was selected for the 2016 Fellows Program of the Leadership Council on Legal Diversity (LCLD), a national organization comprised of the legal profession’s top general counsels and managing partners, and continues to be involved in the LCLD Alumni community.

Chahira earned her J.D. from Northwestern University School of Law, where she served as managing editor of the Journal of International Human Rights. While in law school, Chahira was selected to perform several internships at the Office of the Illinois Attorney General, Antitrust Bureau, the U.S. Department of Justice, Antitrust Division in Washington, D.C., and at the Federal Trade Commission, Consumer Protection Division in Chicago, Illinois. She received B.A.’s in both economics and history from the University of California, Los Angeles.

Read more about Chahira SolhEmail
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  • Posted in:
    Antitrust, Competition and Trade
  • Blog:
    Retail & Consumer Products Law Observer
  • Organization:
    Crowell & Moring LLP
  • Article: View Original Source

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