Mark L.Johnson

Mark has handled a variety of other commercial litigation disputes involving business torts, complex contract disputes, as well as intellectual property-related claims. Mark has participated in cases in state and federal courts throughout the country.

Among his specific accomplishments in construction-related claims, Mark has:

• Obtained judgment on behalf of concrete supplier following a three-week jury trial against precast manufacturer’s claim that supplier had breached the parties' contract by supplying defective concrete, which lead to the closure of manufacturer’s precast division and for which manufacturer sought consequential damages of over $15,000,000 in future lost profits or alternatively $192,000,000 in lost enterprise value. The jury returned a verdict for supplier and awarded manufacturer zero dollars. Prior to trial, obtained summary judgment on supplier’s counterclaim against manufacturer to recover unpaid invoices for the supply of concrete, resulting in an award to supplier of approximately $500,000.
• Obtained a directed verdict at trial on behalf of a general contractor and against an owner of a convalescent home, who had sought to rescind a portion of the parties’ $7.5 million construction contract, resulting in a savings in excess of $1.5 million for the contractor.
• Participates in preparing, reviewing, and negotiating a variety of types of construction contracts, subcontracts, construction management agreements, design-build agreements, and EPC agreements across many industries, representing all sides of a construction project, including owners, developers, contractors, construction managers, and subcontractors.
• Successfully defended a general contractor in a lawsuit brought by a subcontractor who sought to recover in excess of $5 million for breach of a contract of exclusivity.
• Successfully represented a general contractor against the owner of a nursing home in a lawsuit arising out of the parties’ $2.4 million guaranteed maximum price contract for the construction of a 200-bed addition. The owner ultimately withdrew its claims for defective construction and delay.
• Obtained recovery for a subcontractor in a lawsuit to recover the outstanding balance due from its installation of a steel curtain wall, in excess of $18 million, on a commercial office building.
• Successfully represented a contractor in recovering in excess of $1 million for restoration work performed on behalf of a commercial property owner in the wake of a hurricane.
• Successfully defended a contractor against claims in excess of $1 million for construction and restoration work at a naval base.
• Obtained recovery for a floor subcontractor in a lawsuit against the manufacturer of ceramic tile installed by the subcontractor at a racetrack, but which was ultimately rejected by the owner.
• Obtained summary judgment in favor of a general contractor against the owner’s scheme to defraud claim arising out of the construction of a health care facility.
• Successfully defended a paper manufacturer against a general contractor arising out of the parties’ $26 million fixed-sum contract, securing the withdrawal of the contractor's claim upon the filing of a strategic counterclaim against it for claims of defective construction and delay.
• Successfully represented a variety of subcontractors, such as those involved in the steel, flooring, roofing and finishing trades, in obtaining final amounts due under subcontracts.
• Participated in the reviewing and revising of form contracts and general conditions for agreements between owners and general contractors as well as agreements between general contractors and subcontractors.

Among his specific accomplishments in real estate-related claims, Mark has:

• Obtained judgment at arbitration on behalf of a national retailer defeating a claim brought by a shopping center landlord regarding a lease provision that capped the retailer’s pro rata share of common area maintenance expenses (“CAMs”) at 103% of the actual amount paid in the prior year. Landlord contended that when retailer signed the lease, the shopping center was only partially developed, such that retailer’s pro rata share of CAMs was artificially low for the first year. Landlord argued that the CAM provision in the lease, as well as equitable considerations, required a recalculation of tenant’s pro rata share after the first lease year when the shopping center was fully built (and CAMs much higher), which would then serve as the base year against which the 103% cap would apply for the remainder of the term. Following a multiday evidentiary hearing, the arbitrator returned a verdict in favor of retailor and also awarded it a credit for overpayment of CAMs.
• Obtained a denial of a motion for TRO/preliminary injunction on behalf of a national retailer, along with the developer/landlord, filed by a neighboring property owner that contended the site development and construction work for the new store was causing lateral subjacent damage to its property.   
• Obtained judgment on behalf of a national retailer in a case of first impression in the COVID-19 landlord-tenant real estate litigation context regarding the intersection of co-tenancy clauses and force majeure provisions, with the court ruling that the confirmed co-tenancy failure was not affected by the application of the lease’s force majeure clause, thereby excusing the tenant’s obligation of paying full rent under the lease during the period of government shut-down orders.

• Obtained dismissal on behalf of a national restaurant tenant of a claim for specific performance due to the violation of a continuous operations covenant in a lease brought by a landlord that would have forced the restaurant to return and resume operations of a restaurant that it had previously closed.
• Served as national counsel handling portfolio real estate litigation for multiple national retail tenants in the wake of the COVID-19 pandemic.
• Successfully defended a national retail tenant in an eviction lawsuit brought by a landlord for non-payment of rent during government-ordered shutdowns in the wake of COVID-19.
• Engaged by national retail industry trade association to provide counseling and presentations to members on real estate litigation in the era of COVID-19.
• Obtained judgment on behalf of a commercial property owner in the prosecution of a lawsuit to quiet title in multiple disputed parcels by adverse possession.
• Successfully defended the management company of a golf course against an injunction lawsuit brought by the food and beverage contractor for wrongful termination of the food and beverage supply contract.
• Obtained an injunction on behalf of a commercial landlord prohibiting a tenant’s interference with the landlord’s build-out of other tenants’ space, which involved construction activities performed in the tenant’s space, and successfully defended against the tenant’s counterclaim for fraudulent inducement of the lease and for constructive eviction.
• Successfully defended an institutional investor against a claim for breach of an $8 million sale-leaseback agreement, as well as claims for promissory estoppel and breach of a duty of good faith and fair dealing, when investor exercised termination rights under a letter of intent.
• Successfully represented movie theater tenant against shopping center owner for fraudulently inducing movie theater to sign lease termination agreement obligating it to pay a substantial lease termination fee, where owner had already decided to alter use of shopping center such that owner would have breached the parties’ lease.
• Successfully mediated a lawsuit on behalf of an owner of various shopping centers located throughout the country that was filed against lessees of retail space to recover unpaid common area maintenance charges and real estate taxes and to resolve disputes over notice provisions contained in the leases.
• Successfully defended owner of retail complex against claim by a built-to-suit big box retailer alleging that excess vapor moisture in the concrete slab affected carpet flooring materials and retailer’s use and enjoyment of the leased space, where design and construction were in accordance with retailer’s plans and specifications.
• Successfully represented shopping center owner against commercial tenant in a dispute regarding unpaid common area maintenance charges, real estate tax allocations, administrative expense allocations, and administrative salaries allocations under the parties’ lease.
• Successfully defended movie theater tenant against eviction proceedings initiated by shopping center owner, as well as a variety of other eviction proceedings.

Among his specific accomplishments in additional commercial litigation and intellectual property-related claims, Mark has:

• Successfully represented a bankruptcy trustee in recovering on claims asserted against a bank arising out of the misappropriation of $15 million of health savings account funds that were held in an Omnibus account at the bank.
• Obtained a preliminary injunction in a trademark infringement case on behalf of a manufacturer of ground support test equipment for aircraft, enjoining a former distributor from using the manufacturer’s identical part-numbering system in the sale of competing products. The former distributor was also enjoined under the Cyberpiracy Act from using domain names that were based on the manufacturer’s trade name and was ordered to transfer those domain names to the manufacturer.
• Successfully represented a manufacturer of women’s clothing in a lawsuit filed against a competing clothing manufacturer for trademark infringement and unfair competition.
• Successfully represented a foreign brewery and its US importer in a lawsuit filed against a competing brewery for trademark infringement and unfair competition.
• Participated in defending a copyright infringement action brought against a professional basketball team, avoiding the entry of a temporary restraining order against the team arising out of the design of its mascot.