Business & Commercial Litigation

Generally, there are three essential elements under contract law to determine if a valid contract exists:

• Offer: There must be an agreement for providing goods or services in exchange for something of value, such as money, the forgiveness of a debt, or the return of goods or services. It must also be shown that the parties intended to agree. Both oral and written offers can be enforced in court.
• Acceptance: it must be clear that parties agreed to enter into a contract. This ensures that one party cannot claim that there is a contract when there is no agreement. When the contract is in writing, the acceptance is usually apparent. As a result, written contracts are favored over oral contracts.
• Consideration: Each party much have received something of value from the other side.

Also, to create a credible case under the controlling contract law before filing a lawsuit or succeeding in court, you must show that something the other side did cause substantial loss or damage to you or your company. Damages can include loss of money, opportunity, or time.

1. Material Breach
   A material breach occurs when one side in a contract receives significantly fewer benefits or results than what is written in the contract. Usually, when a material breach is claimed, it is argued that the violation was so significant it goes to the very reason why the parties entered into the contract. For example, if a company hires a general contractor to build a warehouse but fails to start the project and uphold its duties, that could be a material breach.
2. Partial or Immaterial Breach
   A partial breach is sometimes known as an immaterial breach of contract and is considered a minor violation. Under partial brief, the plaintiff receives most of what was bargained for, but the defendant failed to fulfill some of their contractual obligations. Partial breach of contract cases are challenging to prove because the party that suffered the breach will have to prove that the breach resulted in a financial loss. These cases usually arise when the alleged breach is that the contract’s deliverables are not produced on time. The party complaining about the breach would need to show that the delay resulted in financial damage or harm. If there is no proof of damages, it may be difficult to form a case for a partial breach of contract claim.
3. Anticipatory Breach of Contract
   It may be possible to claim a breach of contract if the breach has not yet occurred. This situation is called an anticipatory breach, where one side indicates that it will not or cannot uphold its duties under the contract. Under these circumstances, the non-breaching party may terminate the contract and sue for damages before the breach occurs.

When a breach occurs, the other party may seek specific remedies, which are a way to put the plaintiff in a position as if the wrong had never happened. There are five basic ways a court can grant relief to a party that has been a victim of a breach, and their application is dependent on the particular circumstances of the case:

1. Compensatory Damages: this is the most common form of monetary remedy and is designed to compensate the plaintiff for losses experienced as if the losses never occurred. The courts will look for specific evidence to determine the exact amount owed under the circumstances.
2. Punitive Damages: Punitive damages amounts can go beyond the actual monetary loss the plaintiff sustained. This type of award varies significantly from case to case and is designed to punish the defendant for certain kinds of serious wrongdoing. The plaintiff must prove, with evidence, that the defendant acted fraudulently, willfully, or maliciously. However, this type of award is uncommon in breach of contract cases.
3. Restitution: This type of remedy is awarded to put the plaintiff in the same position as it was before the contract even occurred. It does not consider the loss of profits lost or other monetary damages. Instead, a court will usually order that whatever property or money the defendant received as part of the agreement must be returned.
4. Recission: This remedy allows the court to cancel the contract. Typically, if a defendant used fraud, coercion, or “undue influence,” the parties will have to return anything received as part of the contract.
5. Reformation: Like recission, a court may award the reformation remedy if the defendant committed some kind of fraud or was coercive. However, reformation differs from recission because the court can change the contract’s terms in a reformation remedy. For example, if a defendant fraudulently convinced a plaintiff to enter into a contract with an extraordinarily high-interest rate or other coercive terms, the court could adjust the rate in the agreement.
6. Specific Performance: A specific performance is an equitable remedy where the court seeks to force the defendant to honor the contract. A plaintiff must prove it is entitled to this remedy, usually by showing that monetary damages would not be able to make it whole.

Dealing with a breach of contract or an anticipated one requires thoroughly reviewing each case’s particular facts. An attorney should review your case thoroughly to determine how to resolve your breach of contract issue. We provide our clients with advice when a party fails to fulfill their obligations under a contract.  Please contact us if you believe you have a breach of contract dispute or have been accused of breaching a contract.

As with any other legal claim, certain elements must be met to prove the case. Concerning fraud, state law controls most of these claims, which vary somewhat from state-to-state. However, many states’ laws share the following common elements:

Common elements of common law fraud:

1. A material misrepresentation of fact;
2. Knowing that the misrepresentation of fact is false;
3. An intent to encourage reliance (to convince someone to rely on the misrepresentation);
4. The plaintiff must have justifiably relied on the misrepresentation; and
5. Damage to the plaintiff

In addition to working with clients to resolve the consequences of fraudulent activities, we proactively work with clients early on in our engagement to reduce the likelihood of being exposed to fraud.

Some areas where we can help you in this regard are:

• Developing best practices to ensure that company trade secrets are protected. Several actions must be taken to obtain legal protection for trade secrets, and we can help you understand how to meet these requirements.
• Developing strong IP portfolios, both in the US and abroad. Having the proper IP registrations can avoid questions about who owns the rights to intellectual property and can help the fraud victim to obtained increased monetary damages due to the fraud.
• Conducting due diligence reviews of the critical contracts, both internally with employees and externally with vendors.
• Coordinating with forensic accountants to identify potential fraud and to follow-up with the appropriate legal action.

Each US state has slightly different requirements to prove a civil conspiracy. However, in general, most courts recognize these three elements to prove a case:

(1) an agreement between two or more people to commit a civil wrong or an unlawful act;

(2) an apparent act in furtherance of the agreement (such as planning) by any conspirator; and

(3) damages.

Civil conspiracy is a serious offense. In a civil conspiracy case, the plaintiff is responsible for showing that the defendants had the necessary states of mind to be accountable for the wrongdoing. For example, the plaintiff must show that the conspirators intended to commit an unlawful or harmful act. If the individuals involved did not have knowledge that their actions were illegal or wrongful, and they did not intend to cause harm, the civil conspiracy claim might not be valid. Proving the state of mind in any case is difficult to do since the proof is often made through circumstantial evidence.

Furthermore, even if a person was present at the time of the wrongful act but did not agree to assist in or carry out the actions with the others, he or she will not be liable for a civil conspiracy. Even more, civil conspiracy claims cannot be brought against a business entity, such as a corporation. The claim must be made against an individual, such as an officer or manager. Additionally, if a conspiracy participant withdraws from the conspiracy, they can avoid liability for acts that the co-conspirators commit after the withdrawal.

A conspiracy defendant can be responsible for widespread damages. For example, each conspirator is liable for the acts committed by the co-conspirators in full, even if a particular member of the conspiracy did not do anything that directly caused the injury. Furthermore, punitive damages are available to a plaintiff if shown that the defendant’s acts were malicious.

With our strong business and intellectual property litigation background, we are especially well-suited to handle your potential civil conspiracy matters. Please contact us if you would like to schedule a consultation.

In general, a company should execute an NDA before sharing any information the company would not want to become public or to be used.

Some scenarios in which a company may want to execute an NDA include presenting its business model to an investor group for potential funding or contracting with a vendor to develop, manufacture or distribute some part of its product. Companies are typically advised to execute an NDA before exploring potential strategic or exit transactions such as an M&A deal, joint venture, or partnership.

Overly Broad NDAs

Companies should take time to detail what types of information will constitute confidential information under the NDA. An NDA should also specify the period during which the parties must protect the confidential information.

Typically, the party who discloses the information will try to obtain an expansive definition of what comprises confidential information and state in the NDA that everything disclosed in the transaction is confidential. However, there is a risk in taking this blanket approach because courts will typically not enforce an NDA if it is overbroad. Also, the NDA could be considered an “unreasonable restraint on trade” and therefore be unenforceable.

On the other hand, the party receiving the information will usually want a very narrow definition of confidential information. The receiver will typically try to carve out exceptions as to what information the NDA does not protect, such as:

• Publicly available information
• Information that the receiver already knew
• Information that the receiver developed independently; and
• Information received from any third parties.

The information discloser in the NDA will usually first seek an injunction in court because the agreement’s breach (such as disclosing sensitive information to a competitor) is especially harmful and can result in even more damage as time passes. In this case, an injunction would force those who receive the information to stop using or share the data or documents. If the protected information owner is harmed, the disclosing party may be awarded money damages, attorney fees, or litigation costs.

Injunctions to Stop Use and Sharing of Confidential Information

We have successfully resolved motions for injunctions and defeated motions for temporary restraining orders and preliminary injunctions. If you have been the victim of a breach of an NDA or have been named a defendant in a motion for a preliminary injunction, please contact us for a consultation.

While the law differs from state to state, to obtain an injunction, a plaintiff must fulfill three common elements:

• Whether the plaintiff will suffer “irreparable harm” without the injunction;
• Whether the plaintiff is likely to succeed on the lawsuit’s merits; and
• Whether the balance of difficulties the injunction imposes tips in the plaintiff’s favor.

If suing on a breach of contract claim for breach of an NDA, numerous types of monetary damages could be available:

Compensatory Damages

These damages are designed to put the non-breaching party in the same place they would have been if the breach had never occurred. For example, a receiving party could use the information protected under the NDA to make its product using that confidential information. If the disclosing party loses sales because of the new product that has entered the market, the disclosing party could recover the money they lost due to this new product being in the marketplace.

Consequential Damages

These types of damages are related to the harm the NDA’s breach causes, even without a direct connection to the actual breach of contract. For example, the receiving party could disclose the confidential information to a third party, who then uses it to the detriment of the confidential information’s owner.

The NDA may refer to “liquidated damages” in case the receiving party breaches the agreement. Liquidated damages are a specified dollar amount the parties have agreed to pay in the event of a breach. The confidential information’s owner will usually favor a liquidated damages clause because the owner will not have to prove the extent of their damages in court.

We are familiar with using the different damages theories to obtain the most favorable result for our clients. Please contact us to schedule a consultation if you would like to learn more about what damages you could seek in court.

Typically, both companies and individuals will trust others to act in their best interests in a business context. Common fiduciary duty relationships include:

• Executors and trustees of estates or trust
• Attorneys and clients
• Employers and employees
• Financial advisors
• Real estate agents
• Business partners
• Joint venture participants
• Corporate directors and officers

We are experienced in complex business litigation involving fiduciary relationships. If you believe you have been affected by a breach of fiduciary duty, we can help you determine if you have a basis for a lawsuit. Please feel free to contact us for a consultation.

While the elements to prove a case of tortious interference with contractual relations can vary from state to state, there are some common elements to prove this tort:

1. An enforceable contract between the plaintiff and a third party;
2. The defendant’s knowledge of the contract;
3. The defendant’s intentional acquisition of the third-party’s breach of the contract;
4. A real breach of the contract; and
5. Damages as a result of the defendant’s actions.

Below are some examples of tortious interference:

• Violating a non-compete agreement;
• A company that offers meager prices to a buyer (for example, at below cost) that results in the buyer breaching a contract with another business;
• A company prevents the plaintiff’s business from meeting its agreement with another party where the plaintiff is obligated to deliver goods under a contract.

No matter the size of your business, it is common for companies to face challenges from competitors, including interference with contracts. With years of experience in commercial litigation and intellectual property, we are equipped to both assert your rights if someone interferes with your contracts and defend your rights if someone claims you have infringed their rights in some way.

If you believe someone has tortiously interfered with you or your business’s contracts or business relationships, you should contact an attorney who is experienced in this area. Please feel free to contact us for a consultation, and we will help you determine your options.

As with other torts, state law defines the meaning of business defamation. While those laws differ from state to state, three common elements make up a successful claim. First, the defamatory statement must be false. Second, the statement must be “published.” In other words, the statement must have been made to the public in some form, such as to someone in person, online, or having it published in a local newspaper. Third, the statement must damage the business.

False Statement Requirement

To be successful in a defamation claim, a plaintiff must show that the defendant made a false statement of fact about the plaintiff. There is considerable litigation around this element because the statement must be “factual.” What is considered factual is subject to different interpretations in each state. For example, a statement that is merely an opinion is not considered defamatory:

• ABC Company’s cars are the absolute worst I’ve ever owned.

On the other hand, factual statements could be considered defamatory:

• Industry tests have shown that ABC Company puts faulty brakes on their cars.

False Statement about the Plaintiff Requirement

Also, the statement must be about the plaintiff, and it must be a false statement. In the above example, it must be somewhat clear that the defendant referred to ABC Company and not another company.

Further, the statement must be false. The plaintiff typically has the burden to prove this. For instance, in the example above, ABC Corporation would need to show that no industry tests have identified its cars as having faulty brakes.

Defendant’s Fault

The requirement to prove the defendant’s fault varies from state to state. Also, the plaintiff’s status is at issue. For example, in personal defamation cases, a plaintiff must show that the defendant recklessly made the statement at issue without regard for the truth. Yet, if the plaintiff is a public figure, it must be shown that the defendant acted with “actual malice.” Actual malice is a higher standard than “recklessness,” and it must be shown that the defendant knew that the statement was false or had “reckless disregard” of whether it was false or not.

When a company sues for defamation, courts generally hold plaintiffs to a similar standard as public figures. They may need to show that the defendant either knew that a statement was false or acted recklessly when it made the statement because it should have known that it was true.

We represent both businesses and individuals in business defamation cases. To determine if you may have a valid claim or defense, please contact us for a consultation, and we will help you assess your options.