The Man Moving Unmovable Mountains
Josh is a “Bet the Company” trial attorney who has successfully litigated public and private companies’ most important and highest-stakes matters. He is a leading national litigator with extensive experience representing business clients, national property management firms, ownership groups, and operators in a broad range of complex commercial disputes in courts throughout the United States.
As a lawyer, Josh’s commitment and skill in the courtroom has garnered him too many accolades to list—among them, Best of the Bar, Best Lawyer in America, Super Lawyer, Top 100 Trial Lawyer, and Top 100 High Stakes Litigator, in just 2020 alone! He has been featured in Forbes, Fortune, Money, and Bloomberg Business Week, as well as legal publications published by the bars of no fewer than eight states. But more than anything, Josh is a man whose deep-seated sense of ethics, fairness, and unwavering dedication to his clients no longer allowed him to stand as silent witness to what he deems as an unconstitutional and dangerous precedent threatening the livelihood of an industry beset by the rage of COVID-19.
In a time of unparalleled challenges facing the country, and as government regulation threatens a collapse of the residential real estate market, Josh now takes on the U.S. Government in a landmark case to vindicate the rights of the real estate industry infringed upon by the CDC’s September 4th Halt Order on residential evictions. As he seeks to strike down the regulation as unconstitutional, he does so with the kind of intellect, determination, and passion befitting a man who seemed destined to move unmovable mountains.
The Man Behind the Mission
That Josh is undertaking this monumental case will come as no surprise to those whose rights he has spent his entire 17-year career successfully protecting, and, really, to anyone who has ever known him.
Long before Josh became a nationally respected trial lawyer and sought-after legal expert in business litigation and real estate law, he was a middle-class kid living a humble life in a modest Memphis neighborhood. The son of a college professor and a speech pathologist, Josh’s parents instilled in him the importance of education, commitment to faith, a sense of purpose, and the values that guide him to this day—and inform his almost unfathomable determination to move unmovable mountains.
After receiving graduate degrees in both law and business at two of the nation’s top schools, Josh jumped into his career with both feet as a litigator in a top-five national firm. While the experience he gained there was invaluable, Josh’s values urged him to return to his hometown of Memphis, where he could work more closely and personally with his clients and make a difference as a civic leader in the broader community. And while Josh focuses a great deal of his energy representing Memphis companies and others who have invested in the Memphis market (and serving in the executive leadership of numerous philanthropic organizations around town), his record of victory in the litigation of cases in 14 states—with stakes that collectively exceed more than a billion dollars—has garnered Josh the reputation as a go-to litigator for real estate and busines-related litigation anywhere in the country.
From a New Jersey client whose company faced a targeted set of GSE multi-jurisdictional federal lawsuits totaling more than $70M, to a Florida client who was denied more than $32M in hurricane coverage from a market of the world’s leading insurers, to a Texas client against whom the local municipality sought to block the development of a $47M mixed-use development, to an Ohio company seeking the recovery of tens of millions from a set of multi-national electronic companies whose careless factory operations now require massive environmental clean-up, and anywhere and everywhere in between, Josh continues to achieve truly remarkable results for his clients.
Now Josh is determined to move a mountain the likes of Mount Everest to not only restore the rights of property owners and managers, but to protect the very livelihood of the real estate industry. Given his record of success, if anyone can prevail against a Goliath, Josh will.
Meet the Man Leading the Charge to Protect the Rights of the Real Estate Industry:
A Conversation with Josh Kahane
As Josh Kahane begins one of the most important legal battles of his career, Tiger Lily et al. vs U.S. Department of Housing and Urban Development, et al., he took a few minutes to sit down with us and explain what this case could mean for real estate owners and managers across the nation—and the catalyst that drove him to undertake it.
Before we get into the case, let me start with a personal question, Josh. Both of your parents chose careers in the service of others. Did the values they instilled in you influence your desire to become an attorney?
They certainly did. My parents are people whose commitment to honesty, integrity, and fighting for what is right is something that inspired my initial interest in law and serves as motivation for me in each and every case I handle. The guiding principle for me has always been upholding the law and doing everything I can to zealously advocate for the rights of my clients. One of the reasons I chose the law was so that I could be involved day-to-day with ensuring that important issues are addressed and that rights are protected. Whether it’s an individual down the street or a multinational company headquartered somewhere else in the world, my focus aimed at achieving a maximally beneficial result for my client is the same.
You are taking on the U.S. Government in a historical case to strike down the Halt Order, or rent moratorium, would it be correct to assume that these same values drove your determination to bring a lawsuit of this magnitude?
Absolutely. With respect to this lawsuit, perhaps more than any other case in which I’ve been involved in my career, this is truly a case that touches on who we are as a nation and how we can appropriately balance the important needs of those most vulnerable with the fundamental rights upon which our country is grounded. Clearly, the current health crisis has impressed upon all of us a great responsibility to help one another. The efforts that have been taken to support the citizenry during this pandemic have no doubt been undertaken nobly. And yet, government action—particularly at this time—must still be consistent with the fundamental and protected rights of all and cannot be the result of an overreach of authority. We firmly believe that regardless of the outcome, this challenge is an important one to help define the boundaries of permitted and unlawful government action and, at the same time, to push our government to refocus its attention towards undertaking real comprehensive action to meaningfully assist those in need without violating the constitutionally protected rights of others.
The real estate industry is entering its tenth month of rent moratoriums mandated first under the CARES Act and now the Halt Order. What effects are you seeing thus far, and what are the consequences for property owners and managers, and the entire industry, if this continues?
The practical effect of these rent moratoriums is the loss of billions of dollars per month for owners and managers nationwide and an emerging and potentially catastrophic collapse of the residential rental market because of loan defaults, foreclosures, and the layoff of thousands of hard-working Americans employed in the real estate industry. Many property owners and managers are really struggling, having now gone nearly a year without rental income.
While we had all hoped the pandemic would abate by December 31st, in light of the recent dramatic surge of COVID-19 cases across the nation, it is no longer reasonable to expect owners and managers to provide quality housing, service their debt obligations, and pay taxes without recovery of income. If the Halt Order is not struck down, the domino effect of economic and operational challenges will increase, with potentially catastrophic implications reaching far beyond the real estate industry.
Will you give us a brief primer of the Halt Order, your case against the government, and who it affects?
In essence, in the furtherance of President Trump’s executive directive, the Centers of Disease Control (CDC) issued the Halt Order in September of this year, which enacted a sweeping national ban on all evictions against any non-paying residential tenants in all properties through December 31, 2020, plus any extension. The Order provides no monetary relief of any kind to owners and managers during this mandated eviction moratorium, nor does it offer any relief in the form of loan forbearance or tax deferrals. For some owners, the Halt Order comes on the heels of the previous six months of lost rental income resulting from the eviction moratorium contained in the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) issued in March.
Our case, Tiger Lily et al. vs U.S. Department of Housing and Urban Development, et al., is the first lawsuit of its kind filed in any United States District Court seeking to strike down the CDC’s Halt Order on behalf of a class of diverse owners and managers of residential property. The basis for the challenge lies in the CDC’s substantive and procedural violations of the Administrative Procedure Act and what we believe are, at least, eight unique violations of the U.S. Constitution. Our plaintiffs own and/or manage multifamily apartment complexes, duplexes, townhomes, and single-family residences totaling more than 5,000 residential units in the Western District of Tennessee (Memphis); however, if we prevail in striking down the Halt Order, we expect that the ruling would apply in all jurisdictions and impact property managers and owners nationwide.
Beyond the significance of the underlying challenge, in the Tiger Lily case we also framed and presented to the court an extremely novel 4-prong analysis for interpretating agency action based upon applicable canons of statutory interpretation and Supreme Court jurisprudence. We are hopeful that this analysis may become the standard, moving forward, to be utilized by courts in all jurisdictions for judicial review of agency action.
I’ve seen an enormous amount of media attention on this case. How has that impacted your day-to-day practice?
Yes, the attention has been one of the most interesting parts of the experience. We receive almost daily calls for comments and interviews from TV news outlets, newspapers, and magazines across the country. We do the best we can to be responsive to as many requests as possible, as we recognize the importance of this case to so many. I am fortunate to have such supportive partners at Glankler Brown, and my litigation team has been remarkable. I don’t believe we would be experiencing the level of success in the Tiger Lily case, at the rapid pace we are achieving this success, without the enormous work of Aubrey Greer, an associate at my firm and one of the most gifted young lawyers with whom I have ever had the privilege of working; my partner Jeremy Alpert, who is the speed-dial recipient of my 2:00 a.m. calls to discuss a new angle for the case I want to develop; and Matthew Warren and Fisher Smith, two young law clerks at the very beginning stages of their careers, who I am certain will soon make their own marks on the legal profession. Balancing this case, the media, and the needs of my other clients has certainly been a real challenge, but everyone has been very understanding and encouraging. I could not ask to have by my side a better team of people or better legal minds.
Your remarkable success record in the courtroom on behalf of your clients is well known. However, the decision to bring this case was driven not only by your commitment to your clients, but also by your values and your strong sense of civic duty, is that right?
To be quite candid, we brought this action with humility and a healthy sense of reticence. We have great respect for our governmental leaders, including those we felt compelled to name as defendants in our case by virtue of their official capacities. We did not want this important legal challenge to be viewed as a critique of our government’s intentions or as a political attack on the motivations of our elected and appointed governmental leaders—only weeks before the presidential election. At the same time, we are very sensitive to the reality that the current health crisis and associated economic downturn has created for millions of Americans the prospect of job, income, home loss, and the fear of uncertainty. We join in supporting any lawful efforts that will assist those who are vulnerable and in need, especially tenants at risk of losing their homes. And yet, despite the health crisis and need for assistance, government action must still be consistent with fundamental and protected rights. As I argued to the district court judge at our first hearing, there simply is no pandemic exception to the Constitution and our foundational principles of liberty. I felt it was my duty to take on this challenge to preserve fundamental rights and protect property owners, managers, and the real estate industry.
Josh, this is a complex case with far-reaching implications. Thank you for taking the time to help our readers understand the case and its significance for not only the real estate industry, but for so many Americans.
Thank you. It has been my pleasure and I really appreciate your interest and that of your readers.
Commercial Litigator — Glankler Brown PLLC
LinkedIn: Josh Kahane