Larkin Hoffman Secures Victory for Mall of America at United States Supreme Court


In a unanimous opinion written by Justice Ketanji Brown Jackson, the United States Supreme Court overturned a lower court's decision against our longtime client, MOAC Mall Holdings LLC, owner of Mall of America.  The ruling means that the Mall can proceed with its challenge to the assignment of a lease for the space previously occupied by Sears.

The dispute dates back to 2019 when Sears sought the bankruptcy court’s approval to assign its lease at Mall of America to Transform Holdco. Tom Flynn led the Larkin Hoffman team representing MOAC when it objected to the lease assignment in the bankruptcy court and in the subsequent appeal to the district court. The district court first vacated the bankruptcy court’s order and then reversed itself when it reluctantly concluded that it did not have jurisdiction to hear the appeal due to the operation of section 363(m) of the bankruptcy code. Larkin Hoffman represented MOAC in its appeal to the United States Court of Appeals for the Second Circuit, which upheld the district court’s ruling that the statute deprived the appellate courts of jurisdiction.

Greg Otsuka worked with co-counsel from Ropes & Gray to file a petition for certiorari with the United States Supreme Court. After the Supreme Court granted cert for MOAC’s appeal (which it does for only about 1% of the petitions it reviews), Greg worked with co-counsel on the Supreme Court briefing and preparation for the argument. The Court agreed with MOAC’s arguments in holding that the statute in question was not jurisdictional and thus was subject to waiver, forfeiture, or estoppel.

While the Supreme Court’s opinion does not end the litigation, it is a tremendous result for our longstanding client. “This is a pivotal moment for Mall of America. For more than 30 years, Mall of America has been a global shopping destination integrating retail, attractions, and dining options to an unparalleled level. In simple terms, Sears improperly assigned the Mall of America lease to Transform, which is a holding company that has never operated as a retailer and never had plans to occupy Mall of America for retail purposes. We are grateful for this decision in our favor as we continue to bring innovative concepts into our tenant spaces, at the same time serving as a leader and advocate within the shopping center industry.” said Tony Ghermezian, CEO, Mall of America.

Like any successful representation in a protracted dispute, victory is the result of a true team effort. Bill Griffith, who has represented Mall of America for more than three decades, noted, “It is a pleasure to work with a deep bench of attorneys in real estate, bankruptcy and business litigation. In addition to Tom Flynn, Greg Otsuka and our former colleague, Alex Beeby, we are grateful for the support and expertise of our colleagues, Ryan Boe, Andrew Moran, John Kvinge, Nic Puechner and Tyler Hartney. Most importantly, we were able to get the right result for a truly great client.”

The entire opinion from the Court can be found here.

ABOUT LARKIN HOFFMAN | Larkin Hoffman provides counsel to a wide variety of ‎organizations, from ‎small businesses and nonprofits to Fortune 500 companies, in ‎many areas of practice including ‎corporate and governance matters, litigation, real ‎estate, government relations, labor and employment, intellectual property, ‎information technology, ‎franchising and taxation. The firm also serves the needs of individuals in many ‎areas ‎including trusts and estates, personal injury and family law.