An exclusive in a shopping center lease typically prohibits the landlord from leasing to other tenants who display or sell certain goods or services in other parts of the shopping center or prohibits a specific tenant or type of tenant. This benefits the tenant by keeping out competitors, and it benefits the landlord/developer by enabling the landlord/developer to maintain a balanced and diversified tenant mix.
Because exclusives often are covenants on real property and run with the land, i.e., they bind future owners and lessees of the premises, courts strictly construe them. Thus, exclusives often are defined narrowly or contain parameters, such as (a) a percentage or dollar amount of sales at the store location; (b) primary, as opposed to incidental, use (i.e., a percentage of food items sold at a theater compared with total theater revenue); (c) a specified area or amount of shelf space at the store; or (d) exclusion of specific named tenants.
Exclusives have been challenged as unreasonable, overly broad, and contrary to public policy, though they are typically enforced by the courts as very few cases have prevailed in invalidating them. They are strictly construed by the courts, however, and, if the provision is ambiguous, courts will interpret the exclusive narrowly. State contract law governs the interpretation of restrictive covenants and the enforcement of an exclusive. Thus, the same language in an exclusive could be enforced differently in different states.
The most recent and comprehensive case on the power of exclusives is Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, in the federal district court of Florida and the Eleventh Circuit. The plaintiff and tenant Winn-Dixie sued competitors and cotenants, Dollar Store and Big Lots, to enjoin their sale of “groceries” at 97 different locations in shopping centers in Alabama, Florida, Georgia, Louisiana, and Mississippi where Winn-Dixie was a tenant. The federal district court in Florida and the Eleventh Circuit were forced to address whether the grocery exclusives Winn-Dixie sought to enforce ran with the land under the law of five different states. Both courts also had to define “staple and fancy groceries” and “sales area” set forth in the grocery exclusive under the five different states’ law.
Back in 2012, the district court (886 F. Supp. 2d 1326 (S.D. Fla. 2012)) analyzed the exclusive for the 97 stores in the five states and found as follows:
Given this narrow interpretation, the district court entered injunctive relief as to only 14 locations, all located in Florida (11 Big Lots stores, 1 Dollar Tree store, and 2 Dollar General stores). The district court declined to award injunctive relief for the remaining 83 stores for various reasons, including distinguishing language in the grocery exclusives, the fact that some stores were closed, evidence that the stores’ sales of grocery items did not exceed the 500-foot limit, or a combination of these. The district court refused to award compensatory damages to Winn-Dixie, finding its damages expert’s opinion too speculative. Id. at 1346–47. It refused to award punitive damages because the “grocery exclusives sought to be enforced against the Defendants are rife with ambiguities and the scope of their restrictions are uncertain at best.” Id. at 1347.
The Eleventh Circuit affirmed in part and reversed in part certain of the district court’s finding as to the breadth of the restrictive covenant and the findings for particular stores. 746 F.3d 1008 (11th Cir. 2014).
Upon remand from the Eleventh Circuit, the district court probably best summarized the ordeal over these exclusives:
I am once again tasked with the job of defining “groceries” as the term is used in a grocery exclusive, which is being applied to variety stores located in shopping centers with a major grocery store. The amount of attorney and judicial time and resources that have been expended in an attempt to define this seemingly simple but evolving term is astounding. After working on this case for over four years, it is apparent that the marketplace is rapidly and continually evolving and grocery stores are selling more and different products than ever before. Crafting a list of products that are considered groceries is a daunting task, especially in light of ever-expanding offerings. This may be a case where I am “faced with the task of trying to define what may be indefinable.”
Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 2015 U.S. Dist. LEXIS 178867, at *7–8 (S.D. Fla. Apr. 17, 2015) (emphasis added) (subscription required).
Even though the Eleventh Circuit had directed the district court to simply rely on the “dictionary definition” of groceries in its interpretation, it noted that the parties had submitted 12 separate dictionary definitions of that single term. Id. at *11.
The district court found that the exclusive was still not violated in Alabama and Georgia because these states did not define “groceries” or “sales area”; therefore, the court defined them narrowly to just food and the display unit excluding aisle space. Id. at *16–32. For the Florida stores, the court had to consider the broader definition of groceries and sales area under the 2002 Florida 99 Cent case precedent. Id. at *32–46. The district court divided the Florida stores into two groups, pre- and post-99 Cent in 2002. For exclusives before that case, the district court applied a narrow definition to the exclusive for food only and the display unit excluding aisle space. For the post-99 Cent case, the district court applied the broader definition and interpreted the 99 Cent definition to food and household supplies “associated with the preparation and service of food, as well as the maintenance of a clean kitchen (as the primary place where food is prepared).” Id. at *45–46. As to “sales area,” for the defendants’ Florida stores that executed lease agreements after February 2002, the court adopted its preliminary definition, which includes “fixtures and their proportionate aisle space.” Id. at *47.
After remand, only 7 of the original 97 stores were enjoined from selling “groceries” based on this decision, and the remainder were found not to be in violation or were merely ordered to reduce their shelf space designated for “groceries.” Id. at *53–54. In a subsequent decision, the total number of stores with leases executed after February 2002 (post-99 Cent case) was increased to 14. Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 2015 U.S. Dist. LEXIS 178873 (S.D. Fla. June 3, 2015) (subscription required).
In a blistering opinion, the Eleventh Circuit spoke again and reversed the district court as to the Florida stores:
After we have remanded a case with specific instructions, attorneys rarely attempt to have the district court defy our mandate. And even if they try it, a district court is seldom misled into that kind of error by them. This is one of those rare cases where the attorneys representing one side successfully urged the district court to act contrary to our mandate. Of course, we reverse that part of the judgment.
Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 881 F.3d 835, 839 (11th Cir. 2018).
The Eleventh Circuit reiterated that its mandate was clear without room for confusion or genuine doubt and that it really meant for the district court to apply the broader definitions of groceries and sales area from the 99 Cent case for all 41 Florida stores. Id. at 843–48.
Therefore, the Eleventh Circuit remanded the case yet again (now in its sixth year) to apply the 99 Cent definition to all the Florida stores and not just the 14 with leases executed after February 20, 2012. 881 F.3d at 849. Although it was a narrower definition than Winn-Dixie wanted, the Eleventh Circuit affirmed the definition applied by the district court based on the 99 Cent case to be food and household supplies “associated with the preparation and service of food, as well as the maintenance of a clean kitchen (as the primary place where food is prepared).” Id. at 849–51.
As opposed to other states (Alabama and George, for example), the courts in Florida were controlled by binding precedent (the 99 Cent case). But, even so, the Eleventh Circuit still returned to the guiding principle that “covenants are strictly construed in favor of the free and unrestricted use of property.” 881 F.3d at 850.
After the second remand, with a clear understanding that the remaining Florida stores had to comply with a broader post-99 Cent definition, the parties agreed to an order on the injunctive relief necessary to comply with the Eleventh Circuit’s mandate. By this time, there were 10 stores at issue—nine Winn Dixie stores and one Dollar General store. The court issued the injunction as to the nine Winn Dixie stores, but not to the Dollar General store because Dollar General closed the one remaining store at issue.
So here is what ultimately made up the list of items as “groceries,” which was previously ruled by the district court and affirmed by the Eleventh Circuit:
The “sales area” was defined as “fixtures and their proportionate aisle space,” and “proportionate aisle space” is calculated as “half of the aisle space adjacent to a fixture (as a typical aisle is between two rows of fixtures), but no more than two feet.”
Seven years later, it appears that the Winn Dixie saga has reached its final chapter. Looking back, the question remains whether it was worthwhile, given the number of stores that ultimately fell under the broader exclusive (some of the leases terminated, stores closed, or other reasons that an injunction was no longer needed) and the lack of monetary relief. It remains a good reminder to draft and define the exclusive well in the lease. It is also a good reminder that no one exclusive applies in the same way in each state and will depend on whether the exclusive runs with the land and how the state will define the terms of the exclusive. And the courts will likely still apply exclusives strictly and narrowly unless binding precedent provides otherwise.
The lesson for drafting attorneys is to define terms as specifically as you can; understand the particular state the lease is in; be reasonable with its interpretation; and, although litigation may sometimes be unavoidable, think through whether it is best to litigate over a provision rather than come to a sensible business solution. Otherwise, your lease may be the next Winn Dixie saga.
Howard K. Jeruchimowitz is a litigation shareholder at Greenberg Traurig, LLP. He is also cochair of the Section of Litigation’s Real Estate, Condemnation & Trust Litigation Committee.
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