Recently in Business Litigation Category

July 27, 2015

Business Litigation - Proving Your Claims

One of the most misunderstood concepts in litigation is the concept of proof. San Diego business owners know when someone or some other business has committed a wrong. They know if a business partner has stolen from them, when a deal has been broken or when someone fraudulently induced them into a bad deal. Because of this confidence, business owners often walk into an attorney's office expecting an unqualified validation of their claims. In some rare cases, it may be true that a party has a virtually guaranteed win. Unfortunately, in most cases, prospective litigants face numerous hurdles involving significant litigation fees and costs, legal hurdles (including defenses), damages and amassing admissible evidence (proof) all of which vary the risk of loss. This article provides a brief summary of issues of proof in California litigation.


It's the attorney's job to evaluate the case and give the client a frank assessment of what lies ahead. A good attorney will be careful to qualify her assessment pointing out various problems that may lie ahead including potential problems with proof. The client tells his story and while the attorney is listening, she is picturing how admissible evidence will be gathered and presented at trial. This often creates a disconnect between attorney and client leaving the client feeling flat. However the business owner might feel, it is important that he accept his attorney's frank assessment especially when he has talked with several attorneys who are all providing similar evaluations. In fact, an attorney giving different advice might be blowing smoke to do whatever it takes to engage the client. It's extremely important for prospective litigants to understand that what they personally know and what they can actually prove with admissible evidence are not always the same. Accepting these realities is often complicated because of the client's personal and emotional connection to the dispute.

There are two key types of evidence presented at trial: witness testimony and documentary evidence. Both types of evidence come with a host of evidentiary and foundational requirements that in their entirety are beyond the scope of this article. However, there are some important evidentiary issues that assist the lay person in better understanding what their attorneys are trying to accomplish:

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June 17, 2015

Why Damages Are So Important in Litigation

It may seem obvious that damages are important to litigation but it's surprising how misunderstood the concept is amongst business owners and the general public. The misconception is understandable of course given the natural inclination to focus on wrong doing. Nonetheless, without damages (significant damages in most cases) the cost of litigation can be prohibitive even where the most egregious conduct exists. There are two very important practical reasons damages are a critical consideration in deciding whether or not to sue: 1) the costs of winning may exceed the value of the case; and 2) even if you win an amount greater than your costs, the chances of collection may be minimal.

u-s--supreme-court-hallway-658254-m.jpgIf the damages are less than what it will cost to litigate the case, there is very little benefit in suing. Aside from the moral vindication, risking $50,000.00 to fight a court battle where the damages are $50,000.00 is effectively a useless exercise no matter how low the risk of losing is. Moreover, it's difficult to place a value on the emotional cost that comes with litigation. The battle itself takes a toll. Determining whether the damages are outweighed by the costs requires careful evaluation of numerous factors including the risk of losing and whether or not attorney fees are recoverable. The risk of losing is not always clear. The first step in analyzing risk is analyzing the merits of the case, something that should be analyzed with the assistance of an experienced litigator

Attorney fees for litigating a case through trial can easily reach $100,000.00. In more complicated cases, the fees can be far higher. Even in the most simplest cases with extraordinarily efficient litigation counsel, attorney fees through trial can exceed $50,000.00. This all of course presumes that attorney fees are recoverable in the first place either pursuant to a contract or some statute. Moreover, it's possible that if you are awarded $5,000.00 in damages where you originally sought damages of $50,000.00, the court may not consider you a prevailing party for the purposes of awarding attorney fees. In such cases, your attorney fees will not be recoverable (you will have spent $50,000.00 in attorney fees plus costs while only recovering $5,000.00). In addition to attorney fees, actual costs are incurred. Copying fees, court filing fees, service of process fees, court reporter and transcript fees for depositions and trial and expert fees are just some of the actual costs incurred during litigation. These fees can double the cost of litigation. While most of these actual costs are recoverable to the prevailing party, the determination of who is the prevailing party is often unpredictable. In the worst case, your opponent may be determined to be the prevailing party in which case you will have to pay their costs and attorney fees along with your own (while collecting nothing in damages).

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January 20, 2015

Derivative Lawsuits and the Closely Held Corporation




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June 30, 2014

Is Your Business Being Sued?

Being served with a lawsuit can be one of the worst things that can happen to any business.  The specter of long drawn out litigation causes immediate anxiety and young and inexperienced owners worry that their business may collapse.  In short, panic sets in and panic is the worst response.  There are two very good reasons not to overreact to being sued.  First, most businesses are insured to protect against the risk of litigation.  In such cases, the insurance company (with some exceptions) will step in and defend the action.  Second, overreacting leads to bad decision making especially for those that are not insured or perhaps under insured.  Whatever the scenario, there is little doubt that the most prudent step any business owner can take after being sued is an immediate consultation with an experienced business litigator.  The second most prudent step is to act fast.  It is important that business owners are aware of the deadline to respond to the complaint.  They have thirty days from service to do so and need to be acutely aware of the deadline.  Otherwise, on-the-ball attorneys on the other side will promptly move for default which at worst will result in a judgment and at best require significant additional attorney time to cure.  If more time is needed to gather insurance documentation and/or obtain counsel, it is best to at least contact the opposing party or attorney and ask for an extension to "respond" to the complaint and confirm so in writing.  Using the word "respond" instead of "answer" will allow you to respond to the complaint in any manner available under the law.  Most attorneys will agree to this at least once.  

time-to-do-business-924991-m.jpgMost people would be surprised at the number of business owners (in San Diego alone) that choose to ignore lawsuits only to find out later that judgment has been entered against them for tens of thousands of dollars or even hundreds of thousands of dollars.  The existence of the judgment is often discovered only after bank accounts are attached or a Sheriff shows up one day to conduct a till tap (collecting money from the cash register at the end of the day to satisfy the judgment).  Others will rush to resolve the matter without the assistance of an experienced business litigator hoping that they can avoid the problem by agreeing to resolve the dispute informally.  While informal resolution is certainly preferable, signing agreements without legal representation is extremely risky.  The attorney representing the other side is armed with tools to maximize the benefit to their clients.  The harm to business owners under this scenario can be incalculable.  Usually, unrepresented business owners have no idea of the true extent of what they are agreeing to.  For instance, a business owner who agrees to pay off a debt in twenty-four monthly payments may unknowingly stipulate to forfeiting all of her shares in a corporation (a disastrous outcome) if she is late even one time on her payments.  An experienced business lawyer will build a cushion regarding late payments into any agreement settling the matter.  

After "not panicking", the first thing any business owner should do upon being served with a lawsuit is to retrieve all insurance policies (including personal umbrella policies) that might in any way cover the business.  In fact, any experienced lawyer would first ask about insurance policies.  It would be malpractice to do otherwise.  Moreover, attorneys aren't interested in spending time on lengthy consultation and evaluation if a case is eventually going to be turned over to an insurance company who retain their own attorneys to handle litigation.  Businesses pay considerable premiums to protect themselves from risk.  When sued, they shouldn't hesitate to tender their claims to insurers.

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May 26, 2014

The Pros and Cons of Guerrilla Discovery

Litigation can be divided into three relatively distinct phases: the pleading phase , the discovery phase and trial. While the distinction can sometimes be blurred, there is no doubt about these three significant areas of litigation. The average San Diegan has little understanding of the pleading phase. It involves the filing of a complaint followed by answers, cross-complaints and/or attacks on the pleadings (demurs, motions to strike and motions to quash) most of which require a response by the plaintiff and ultimately a hearing before the trial judge. This phase can be remarkably drawn out and complicated, and it is a topic for another article. Trial is, well, trial. It is of course the most well known phase in litigation. The discovery phase is no more or less important. A properly discovered case provides attorneys with the necessary tools to prove a litigant's case at trial.

stone-judge-778488-m.jpgThere is a school of thought in both the legal and non-legal communities that discovery can also be used as an effective bulldozing tool (often referred to as "guerrilla discovery"), and the sad truth is that this is indeed true. The idea is to propound so much discovery (whether via written requests or deposition testimony) and to provide as much resistance to discovery propounded on you that the other side cowers in response to the onslaught. Between attorney fees, court reporter fees, transcript costs and expert fees, the total cost for the discovery phase alone can be astronomical. Even in a relatively simple case between two San Diego business owners, an attorney can propound hundreds and hundreds of interrogatories, requests for production of documents and requests for admissions (a discovery tool that allows parties to ask the other side to admit certain important facts in the litigation). If the propounding party feels that the discovery responses are inadequate for any reason a round of negotiation and motions to compel follow. By the time all of this is accomplished, the opposing party's attorney may spend fifty to one hundred hours dealing with this written discovery alone. Even the most affordable litigator whose fees are in the low $200.00 per hour range, fifty to one hundred hours for a single battle over written discovery adds up fast. In addition, a guerrilla campaign will include taking the depositions of every possible witness resulting in significant additional cost. It is not uncommon for a party to notice the depositions of twenty or more witnesses. Some of these depositions are of business owners or managers and can last for days. The above scenario is an example of what can occur even with the simplest of cases. In more complex cases like patent litigation, attorney fees can be hundreds of thousands of dollars (for the discovery phase alone). As one might imagine, this type of onslaught can be daunting to the opposing party.

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May 13, 2014

Arbitration Clauses and Class Action Waivers Under California Law

When a large group of individuals are injured by the actions of a person or company, the class action lawsuit allows them to pursue their legal claims even where the damages personal to each individual may be small.  Because attorneys' fees are recoverable in class action suits, litigation attorneys are generally willing to take such cases on a contingency basis.  Often, large corporations with potential exposure to class action claims incorporate arbitration clauses and class action waivers requiring any claimant to seek relief via arbitration and foreclosing the class action option.  Arbitration clauses are attractive to defendants, and sometimes plaintiffs, because it is faster, cheaper and more flexible than litigation.

u-s--supreme-court-2-1038828-m.jpgWhere individual damages are small, the class action waiver most often acts as a bar to relief.  From the corporate perspective, the class action waiver protects companies from frivolous suits brought by unscrupulous lawyers.  Currently, the enforceability of a class action waiver under California law is unclear.  One side is concerned with the protection of consumers who have little choice in most cases but to enter into whatever agreement they are presented (i.e. signing a contract with a cell phone provider).  The other side is concerned with protecting the strong policy goal of encourage arbitration and reducing the pressure on overwhelmed courts.  

Historically, California courts have been loathe to enforce arbitration agreements that limit or waive a plaintiff's ability to pursue a class action. Following the U.S. Supreme Court's recent decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011), however, the California Supreme Court has had to reconsider its previous attitude towards such waivers, at least to some extent.  In Concepcion, the U.S. Supreme Court held that the Federal Arbitration Act ("FAA") preempted state laws restricting the right of parties to agree to arbitration.  The Concepcion Court noted the efficiency and cost advantages of arbitration over class litigation and arbitration.  Significantly, the Court emphasized that contract law governs and that "the FAA requires courts to honor parties' expectations".   Thus, the enforceability of arbitration clauses and class action waivers falls squarely within the boundaries of contract law.

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May 12, 2014

California's Statutes of Limitation

In order to discourage unreasonable delay in bringing civil lawsuits, all states have established certain time limits within which a legal action must be brought, more commonly known as the "statute of limitations." Some states, including California, have also adopted what are known as statutes of repose which act as an absolute bar to certain legal causes of action. Statutes of limitations and repose are intended to protect potential defendants from being subjected to stale legal claims where witnesses and/or evidence become unavailable thereby impeding the defendant's ability to defend against the claims. If an action is not brought within the specified period, subject to certain exceptions, a court is barred from hearing the case.

1137812_old_time.jpgThe first step in determining when a statute of limitations begins to run is to ascertain when the cause of action "arose" or when it "accrued." A cause of action arises when the conduct upon which the claim is based occurs. A cause of action accrues when the right to take legal action arises. Generally, the statute of limitations begins to run from the time a cause of action accrues.

For example, assume that John underwent surgery in 2000. During the procedure, unbeknownst to John, the surgeon negligently left an instrument inside him. Years later, in 2014, John began experiencing pain as a result of the instrument and later learned of the surgeon's negligent mistake. John's claim for medical malpractice arose in 2000, at the time the surgeon committed the negligent conduct. However, John's cause of action didn't accrue until 2014, when he discovered the surgeon's negligence. Under the California Code of Civil Procedure, the statute of limitations for malpractice is the lesser of three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.

This delayed accrual of the statue of limitations in medical malpractice cases is similar to the common-law "delayed discovery rule". The doctrine tolls the statute of limitations until the injured party discovers or has reason to discover the cause of action. Generally, the delayed discovery rule applies because it would be "manifestly unjust" to deprive a plaintiff of his or her cause of action before he or she is aware of the injury. For example, assume Bill buys a used car from a shady auto dealer. Unknown to Bill, the dealer covered up the fact that the car had a salvage title because it had been involved in a serious accident. Bill buys the car thinking it has a clean title but begins having trouble with it after four years of use. After taking it to a mechanic, Bill finds out about the car's history. Bill wants to file a claim against the car dealer for defrauding him, but, under California law, the statute of limitations for fraud is three years. However, pursuant to California's statutory discovery rule (which provides that a cause of action for fraud is "not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake"), the statute of limitations didn't begin to run until Bill found out about the true car history.

The following are the statute of limitations for some common civil causes of action recognized in California: Fraud: 3 Years; Libel/Slander/Defamation: 1 Year; Personal Injury: 2 Years; Medical Malpractice: 3 Years from injury/1 Year from discovery; Breach of Written Contract: 4 Years; and Breach of Oral Contract: 2 Years. 

Statute of limitations can involve complex issues and the above list is meant only as a general guide. If you have questions regarding California's statutes of limitations, consult an experienced San Diego litigation attorney as soon as possible to ensure that you preserve your right to compensation.

August 12, 2013

The Business Judgment Rule Held Not Applicable To Corporate Officers in California

A 2011 decision by a federal court highlighted the applicability of a legal theory known as the business judgment rule to corporate officers in California.  Codified at section 309 of the Corporations Code, the business judgment rule establishes a presumption that a corporate director, in the performance of his or her duties, acts on an informed basis, in good faith, and in the honest belief that his or her actions are in the best interest of the corporation.

man-on-a-bridge-3-1427249-m.jpgIn Federal Deposit Insurance Corp. v. Perry (C.D. CA December 13, 2011) (Case No. CV 11-5561 ODW), the U.S. District Court for the Central District of California held that the business judgment rule is inapplicable to decisions made by corporate officers (as opposed to "directors") on behalf of the corporation.  In Perry, the Federal Deposit Insurance Commission ("FDIC") sued the defendant, Matthew Perry, in his capacity as CEO of Indymac Bank, alleging that Perry breached his fiduciary duties by negligently allowing the bank to generate over $10 billion in risky residential loans.

Due to the volatility of the secondary market in which the loans were slated to be sold, Indymac was forced to absorb the loans into its own investment portfolio, resulting in losses of more than $600 million.  In July of 2008, Indymac Bank closed and the FDIC was appointed as receiver.  Perry moved to dismiss FDIC's complaint, claiming it had failed to allege facts upon which it could state a claim for recovery.  Specifically, Perry contended that the business judgment rule protected him from liability stemming from decisions he made as a corporate officer of the bank.  FDIC countered that the business judgment rule does not apply to corporate officers in California.

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July 1, 2013

Changes to California's Parol Evidence Rule Key in Fraud Cases

For a long time, a limitation to the fraud exception of the "parol evidence rule" played an important rule in California contract disputes.  The parol evidence rule prohibits parties to a written contract that contains all of the elements of their agreement from introducing extrinsic evidence (evidence outside the bounds of the written terms of the contract) to contradict the terms of the agreement.  Essentially, the rule protects parties to written contracts by limiting the scope of the parties agreement to the actual written terms in the agreement that were originally agreed to.  The contract's terms are the "exclusive evidence of the parties' agreement."  This is an important protection because it prevents contracting parties from later claiming that there was a side oral agreement that is inconsistent with the contract.  If a contract dispute later arises, the parties cannot introduce extrinsic evidence that changes what the parties already agreed to.  The rule is limited to oral evidence that "contradicts" the terms of the contract.  In some circumstances, California law will allow the introduction of outside evidence to clarify contract terms.  

638482_the_secret_bench_of_knowledge_4.jpgThe fraud exception has been a long time exception to California's parol evidence rule. The rule allows a party bringing a fraud claim to introduce extrinsic evidence to prove that the original written contract was tainted by fraud.  In 1935, the California Supreme Court decided the case of Bank of America Association v. Pendergrass which placed a significant limitation on the fraud exception.  The Court specifically held that where evidence is offered to prove fraud, it "must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing."  In brief, the Court said that when there's a fraud claim, the party bringing the claim can't introduce evidence that contradicts the written terms of the contract.  This was a significant limitation on the fraud exception.  Without it, it was argued, the parol evidence rule would have little teeth in fraud actions.

Earlier this year, however, the California Supreme Court decided a case that expands the fraud exceptions significantly.  It essentially overturns the fraud exception limitation.  In other words, it broadens the fraud exception, allowing more evidence in and thereby undercutting the parol evidence rule.  The case, RiverIsland Cold Storage, Inc. v. Fresno-Madera Production Credit Association, is likely to have a significant impact on all contract claims in California.

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May 2, 2013

When Lies Become Fraud

The term "fraud" is thrown around a loosely these days.  It is not uncommon for a business client to tell her attorney that she has been defrauded in a business deal because a vender lied, a partner stole from the business, or a supplier failed to deliver an order.  While each of these scenarios can be fraudulent, more times than not, such actions or inactions do not quite rise to that level.  It can be very difficult to prove all the elements of a fraud in court even where it actually exists.  More importantly, there is a general misunderstanding of what fraud is, under the law.

Corporate formalities 1.jpgThere are four types of acts that can be considered fraud or deceit.  (Fraud technically only applies to contract actions, though the terms fraud and deceit often get used interchangeably.)  They are commonly known as intentional misrepresentation, negligent misrepresentation, concealment, and false promise.  (There is also a fifth "catch-all" fraud category of "any other act fitted to deceive.")  A brief summary of the basics follows:

Intentional Misrepresentation
For an intentional misrepresentation to be considered fraudulent:
  • The statement must be an intentionally or recklessly false statement of fact.  It generally cannot be an opinion (though there are some exceptions);
  • The injurer must have intended to defraud the victim.  Intent is usually the most difficult element to prove;
  • The victim must have reasonably relied on that false statement to change her position.  A victim can't reasonably rely on the statement if she knew or should have known the statement was false; and
  • The victim must be able to prove that it caused some type of measurable damage.
Negligent Misrepresentation
Negligent misrepresentation is basically the same thing as intentional misrepresentation, except that the injurer doesn't have to know that the statement was false--he must only lack a reasonable basis to believe it was true.  This is generally easier to prove than intentional misrepresentation, but unlike intentional misrepresentation, the victim cannot collect punitive damages.

Concealment is when someone who has a duty to disclose a material fact either does not disclose it or conceals it with the intent to defraud the victim.  He has a duty to disclose when he is in a fiduciary relationship with the victim (for example, a business partner).  For concealment to be considered fraudulent, a victim must show the following:
  • The injurer intentionally failed to disclose an important fact or disclosed some facts but intentionally failed to disclose another important fact making the disclosure deceptive;
  • The victim did not know of the concealed fact;
  • The injurer intended to deceive the victim by concealing the fact; 
  • The victim reasonably relied on the concealed fact to change her position.
  • The concealment caused some type of measurable damage.

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January 26, 2013

Realities of Pursuing Breach of Contract Actions

Contractual disputes are a regular part of doing business but this fact is rarely recognized by business owners.  This is because the vast majority of disputes are resolved informally before attorney involvement becomes necessary.  Every time discounts are offered because of delayed delivery or because a product is defective, every time a partner agrees to sell his interest in a business because the partners want to take the business in different directions or every time a commercial lease is renegotiated because of a problem between the landlord and tenant, contractual disputes are resolved.  The list of examples is endless.  The lesson is that most business owners are reasonable and seek efficient solutions to problems and in fact reach efficient solutions.  This is because experienced business owners understand that litigation is time consuming, emotionally draining, risky and expensive.  The purpose of this article is not to dissect the legal elements of a breach of contract cause of action.  Rather, its purpose is to provide some guidance to business owners faced with a breach of contract while simultaneously conveying some of the pitfalls inherent to contract litigation.  

961189_angel_bandw.jpgIt is common for business owners to call their attorneys abruptly with a passionate plea for justice relating in great detail just how badly they have been wronged.  Attorneys listen of course because they know it's good for their clients to vent.  However, attorneys are internally sizing up the practical realities of the case.  Attorneys ask themselves very simple questions.  What are the damages (how much money is involved)?  Playing devil's advocate, what will the other side claim?  Is this situation specifically addressed in the contract?  How much will it cost my client to fight this battle?  In fact some lawyers make it even simpler.  They only want to know what the damages are.   If the damages are small, then it is likely that their client will have to spend more money litigating the case than they can win - assuming they can and will win.  Unfortunately, even the most practical business owners sometimes find themselves faced with a breach of contract that cannot be worked out despite significant efforts.    

While every situation is different and consultation with a business litigation attorney is best, the following serves as a helpful guide in deciding how to proceed when a contractual dispute arises:

1.    Determine how much money is involved.  If it is less than $10,000, pursuing a small claims action in California is probably your best bet.  However, even small claims actions require some commitment from the business owner.  If the damages are a couple of hundred dollars, it's probably better to send letters and continue to pursue the matter informally.  The "I am not going away" tactic is often successful.  If the amount is greater than $10,000 but below $25,000, consider consulting with a lawyer about an aggressive letter and phone call campaign.  This can be done for a relatively low cost and is often successful.  Depending on the circumstances, this tactic can be extended into filing a civil complaint for breach of contract.  The purpose is to put pressure on the other side hoping that it brings them to the negotiating table.  If it doesn't, you can instruct your attorney to dismiss the case before it costs you more than $25,000 in attorney fees and litigation costs.  Ultimately, the advice you receive will depend on the strength of your case.  

2.    Forget about Punitive Damages and Contingency Fee Agreements.  It is only in extraordinary cases where independent torts exist (fraud, physical harm, etc) that punitive damages are awarded.  If the actual damages are high and the case involves egregious actions you will certainly want to discuss the potential for punitive damages with an attorney.  If litigation is pursued in high damage cases, attorneys will plead numerous causes of action seeking all potential relief.  However, most business disputes do not rise to this level and even if punitive damages are sought, they are rarely awarded in disputes between businesses.  It might be different of course if you were harmed by Microsoft and can show egregious action but this is not the typical scenario that is the subject of this article.  The same is true regarding contingency cases.  Attorneys will rarely handle business disputes on a contingency basis.  If they do, it's because the case is extremely valuable and the facts are so one-sided that they have high confidence in winning and collecting.  It cannot be stressed enough that these types of scenarios are rare.  It doesn't hurt to consult with several lawyers, but it is better not to expect that a lawyer or law firm will assume the risk for you.

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October 17, 2011

Litigation Should Be Your Company's Last Resort

Like any metropolis, San Diego has a diverse business climate requiring constant interaction amongst retailers, service providers, customers, guests, invitees, tenants and landlords, suppliers, manufacturers, contractors, government agencies, insurers, law firms, and accountants. This level of interaction naturally breeds conflict especially when multiplied by the large number of business, consumer and professional transactions occurring every day in San Diego County. Conflict resolution occurs routinely and the vast majority of conflicts are resolved amongst the parties without the need for lawyers. In fact most conflict is resolved before anyone recognizes that a conflict has even arisen. People naturally look to solve problems as quickly and efficiently as possible so that they can move on to more important matters. Whether a simple cashier error or a complex misunderstanding regarding the terms of a contract, most conflicts are resolved within the first few hours. Of those that are not resolved quickly, most are worked out informally by the parties in a reasonable timeframe and without the need of a San Diego litigation attorney.

705366_construction.jpgUnfortunately, the law of averages guarantees that some business conflicts will not be resolved without resort to the legal system. When conflicts reach this level, business owners rely on the court system to provide them access to a just resolution. The problem of course is that access to a just resolution isn't free and even in those circumstances where there seems little doubt about who is in the right, litigation outcomes are far from predictable. In fact, in most cases litigation is drawn out, expensive, emotionally draining and ultimately unsatisfying. This does not mean that access to justice is a myth. However, opting to resolve business disputes via litigation requires a cost benefit analysis similar to any other business decision. Even the most deserving cases may not be economical to pursue. Litigation costs and attorneys fees often exceed the value of the case to the litigants. In those cases, informal resolution becomes imperative. The alternative is to right off the loss rather than accept greater losses associated with long drawn out litigation.

Whatever the cost benefit analysis, resorting to litigation should be your last resort. Why? Because as stated above, litigation outcomes are unpredictable no matter how righteous a claim is. Assume for instance that a contractor is owed $225,000 for work completed on a construction project. There is little doubt from the contractor's perspective that it is owed for the work completed. Nonetheless, the developer, a private individual, has questioned the quality of the workmanship and is refusing to pay until major repairs are completed. Assume further that the developer is being unreasonable. The contractor knows that the developer is out of money and is making excuses to avoid payment. The case is simple enough. The developer should pay for the work done. If the developer cannot afford to pay, a lien can be taken against the property to protect the contractor's interest.

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May 24, 2011

How to Respond to a Cease and Desist Letter Claiming Trademark Infringement?

Cease and desist letters claiming trademark infringement have an intimidating effect on their recipients. Most San Diego business owners are bewildered and have no idea how to respond. They have been in business for months if not years, and have constructed signs, circulated business cards, advertising and other promotional materials, published websites, formed a corporation and built goodwill and customer loyalty all under their existing name. Now some company they have never heard of is telling them they need to abandon their identity and start all over, a costly endeavor. Ideally, businesses will conduct a trademark search before deciding on the use of a name and logo and then file their own trademark registration, but this is of course hindsight. There are two very important things to keep in mind upon receipt of a cease and desist letter claiming trademark infringement: don't panic and don't ignore it.

742579_when_lightning_strikes.jpgDon't panic because in many cases the issues can be resolved without having to abandon your business' identity. Your mark may not actually infringe on the claimant's mark, you may have a common law trademark giving you the right to use the mark in your geographical area, or the claimant may be willing to license use of the mark, place some limited restrictions on use or request some reasonable modifications to the mark. Remember that pursuing trademark infringement claims is an expensive endeavor and it is often economical for the claimant to work out an agreement with alleged infringers. Usually, a San Diego trademark attorney can assist in resolving the dispute for a reasonable cost. Of course, in some circumstances the claimant will not walk away so easily. It depends on the size of the claimant's business, the strength and recognition of the claimant's mark and the geographical scope of the claimant's customer base. A business won't get very far opening a hamburger joint called McDonald's and utilizing a big yellow "M" at the forefront of its logo's design. McDonald's will pursue a trademark infringement claim no matter the expense.

Don't ignore it because some companies will pursue their claims even if they are not as big as McDonald's. Once a trademark infringement claim is filed in Federal court, you lose significant bargaining power. Even if you capitulate and agree to change your business' name, the claimant will almost certainly want to be recuperated for bringing the action including attorney's fees and other costs associated with filing suit. With or without an attorney, open the lines of communication.

If hiring a lawyer is not economically feasible, start by calling whoever sent the letter and ask them whether there is room for negotiation. However, be careful about making any admissions, especially in writing. For instance, your case will be significantly weakened if you send a letter to an attorney for the other side admitting that your mark infringes on theirs and apologizing for the mistake. Instead, let them know that in the interest of avoiding legal fees and litigation costs you are willing to work something out. Ask what it will take. If you feel you have a strong position, tell them why - your mark has been in use in San Diego County for 10 years well before they obtained their federal trademark registration (giving you a common law trademark). Or suggest that the two marks really aren't that similar and there isn't any likelihood of confusion. If your position is weaker, suggest alternatives that won't involve reinventing a marketing campaign. Maybe the design of your website is too similar to theirs requiring a simple fix. Maybe they'll be willing to license the mark for a nominal fee given that the marks are being utilized in two different states. However, it's best not to play attorney with these folks. Be conciliatory so that they understand your willingness to cooperate. If at any point it seems like you are in for a battle, that's probably the time to contact a trademark lawyer regardless of the cost.

August 20, 2010

Piercing the Corporate Veil

"Piercing the Corporate Veil" is a well-known phrase.  To the average American, it conjures up visions of corporate giants being slain by David.  This pejorative understanding has little practical value in today's business world.  In fact, "piercing the corporate veil" (holding the principals of a corporation or limited liability company liable for the debts of the company) is an all too real legal principle for entrepreneurs concerned with protecting their personal assets from the liabilities of their business.  Incorporation law has developed to encourage business development and risk taking.  Limiting owner liability (whether of individual owners or of parent companies) furthers this goal.  However, there are limitations to the protections provided.  First, it's important that companies fully comply with the legal formalities required to maintain their business entity to ensure personal insulation.  Second, the corporate veil may be pierced where one forms a corporation or LLC for the purpose of insulating personal assets, insulating the assets of another business or for some other unjust purpose.
The Deal.jpgIn California, courts will pierce the corporate veil when two requirements are met: 1) the Court finds unity of interests (the shareholders, or owners in the case of an LLC, treat the corporation as an alter ego) - this happens when shareholders treat the assets of the corporation or LLC as their own and/or use corporate funds to pay their private debts; and 2) the Court finds that allowing shareholders to dodge personal liability would sanction fraud or promote injustice.  

To answer these questions, courts look at numerous factors including: whether the shareholders/owners acted in bad faith; whether individual contracts were entered into with the intent of avoiding performance and hiding behind a corporate shield; whether assets have been diverted to the detriment of creditors; whether there is ownership and control of the entity by a few key individuals; whether the shareholders/owners and the corporation share the same office or business location; whether the shareholders/owners and the corporation share the same attorney; whether the shareholders/owners used the entity to procure labor, services and merchandise for others; whether the entity was adequately capitalized; whether corporate formalities were followed; and whether the result would be unjust should the court fail to pierce the corporate veil.  

While California courts are generally reluctant to pierce the corporate veil, they are not afraid to apply the theory where the above factors evidence injustice.  Entity shareholders and owners unsure about their personal protections should consult a business attorney
July 29, 2010

The Advantages and Disadvantages of Arbitration Clauses In Business Contracts

Arbitration clauses are typical in business contracts for several reasons. Most importantly, they allow businesses to settle disputes in a timely and cost-effective manner, without entering into costly, time-consuming litigation. Arbitration significantly limits discovery costs such as interrogatories, depositions, and pretrial motions that often constitute the bulk of litigation expense. In addition, arbitrators are often specialists in their various fields and tend to be more knowledgeable than juries.


Arbitration may be binding or non-binding. Non-binding arbitration involves the determination of liability without the dispensation of an award. While the arbitrator may suggest possible awards, parties are not legally obligated to accept the suggestions. Binding arbitration, on the other hand, involves not only the determination of liability, but also the terms of the award for the wronged party. Moreover, the arbitrator's determination is final (with few exceptions), and precludes further dispute and appeal. In California, an arbitration clause may be disregarded where all parties agree, where the clause exists as part of an invalid contract or where third parties are involved in the litigation (where third party claims arise out of the same transaction or series of related transactions).

Binding arbitration has significant advantages to both small and large business. Avoiding costly litigation is priceless to small business owners especially because they are typically priced out of litigation by large corporate entities. Large corporate entities like binding arbitration because they fear the uncertainty of jury trials. Putting the decision in the hands of an experienced arbitrator assists larger businesses in anticipating outcomes. In addition, binding arbitration is faster and less formal. On the other side of the coin, small businesses give up the right to a jury trial in exchange for affordable conflict resolution and large businesses give up their ability to steam roll smaller opponents. Other cons include the potential for being stuck with a bad arbitrator, being stuck with a bad and/or legally incorrect decision that cannot be appealed and having less time to properly investigate claims. Either way, courts, bar associations and state bar entities across the country are encouraging parties to look to informal resolution before resorting to the court house steps.

It's important that businesses consider these pros and cons carefully and enter into contracts that clearly set forth the terms of arbitration. Significantly, in order to put teeth into a binding arbitration clause, it needs to specifically state that binding arbitration is mandatory. Arbitration law in California is evolving and now allows for judicial review of "legal" errors by arbitrators where the parties specifically contract for it. In addition, contracts may include language that: requires claims be made within certain time limitations; requires parties to first negotiate in good faith before demanding arbitration; requires the party demanding arbitration advance arbitrator fees (which can be substantial); requires the losing party to pay the other side's attorney fees; requires the parties to comply with pre-set procedural rules created by entities such as the American Arbitration Association; and/or puts limits on the types of damages allowed (such as prohibiting punitive damages). A contracts attorney will assist San Diego businesses in navigating the pros and cons of arbitration clauses and ensure that they are drafted appropriately.