Contract Remedies:
Contracts are the very stuff upon which the marketplace is founded, and they provide the basis for a large share of business litigation.  The remedies for breach of contract include money damages and injunctive relief expressly directing one of the parties to perform a contractual obligation.  This remedy involves a form of injunction called a “specific performance” decree.  The remedy of specific performance is often called an “extraordinary” equitable remedy, in that courts will not grant specific performance except in a sharply limited number of circumstances.  Punitive damages are not an available remedy in a contract lawsuit.

Business Litigation:
Business litigation is the area of law that provides assistance in the preparation and presentation of a lawsuit or other resort to the courts to determine a legal question or matter in business situations.  Business can be any activity or enterprise entered into for profit, usually a company, a corporation, partnership or any such formal organization.  Business lawyers advise and represent businesses and financial institutions in such areas as business torts, class actions, complex contracts, financial forensics, government investigations, international dispute resolution, professional relations, real estate disputes, securities and antitrust, technology and intellectual property, professional malpractice, shareholder and corporate governance and telecommunications.  Business lawyers place an emphasis on achieving or defending against pre-judgment remedies, including pre-judgment orders for writs of possession, attachments, temporary restraining orders, and injunctions, as well as arbitration or mediation settlements and monetary compensation resulting from lawsuits.  Transactional business lawyers represent clients in matters relating to, but not limited to, organizational, operational and contractual documents for corporations, partnerships and limited liability companies, commercial transactions, mergers, real estate acquisitions, leasing and development and commercial financing.

Fraud:
This is an area of law that often overlaps with criminal law.  In the civil business litigation arena, the proof requires a showing that the defendant made a false statement, intending that the plaintiff rely upon it.  There must also be a showing that the plaintiff did, in fact, rely upon it, and that the plaintiff suffered damages as a result.  Punitive damages are commonly awarded to successful plaintiffs in fraud cases.

Securities Litigation:
In the course of financing their expansion, businesses commonly turn to one or more activities involving the sale of securities, ranging from the funding and formation of start-up companies to buying and selling professional practices, assets, divisions and companies, and engaging in private stock offerings and re-sales.  Businesses may also get involved with such things as structuring venture capital financing, forming off-shore sales and sourcing entities, structuring commercial and partnering transactions and syndicating real property acquisitions.

Bankruptcy:
Bankruptcy is a process authorized under the federal Bankruptcy Act under which a debtor who is unable to pay his or her creditors may petition the U.S. Bankruptcy Court for relief.  Depending upon the factual circumstances of the case and the particular Chapter of the Bankruptcy Act under which relief is sought, the Court may grant varying forms of relief, ranging from an order granting full discharge of the debts to the establishment or an arrangement under which the debtor is given additional time to pay the debts.  As long as the debtor complies with the terms of that arrangement the creditors will be barred by court order from taking any further collection actions against the debtor.  There is a special type of Bankruptcy proceeding authorized under Chapter 11 of the Act.  It is called "business reorganization," and it is designed to enable a business debtor to remain in business while reorganizing the debt under a plan providing for the creditors to be paid.

Franchises and Other Types of Business Marketing:
A great many small businesses in the marketplace today are operated not as purely independent businesses, but as franchises, distributorships, or any of various types of licensing arrangements.  All of these businesses are created through written agreements containing express and implied warranties, and it is not uncommon for issues to arise resulting in litigation.

Government Regulation:
Businesses often find themselves at odds with one governmental agency or another, whether it be the local zoning commission, the federal Environmental Protection Agency, the Federal Trade Commission, or any one of several hundred other federal, state and local agencies.  Conflicts with governmental agencies are usually covered under state and federal statutes, and also under state and federal regulations and local ordinances.  As a general rule such conflicts are litigated before administrative tribunals under administrative law.  This usually imposes fewer formal requirements on the parties and produces a quicker result, but sometimes it does so at the expense of someone’s rights.  If you feel that your rights have been violated in an administrative hearing that has gone against you, the judicial system will consider an application for relief, based upon allegations that there was an abuse of discretion in the holding against you.

Defamation:
Defamation is the communication of a false and unprivileged statement that exposes another to hatred, contempt, or ridicule, or which causes him or her to be shunned or avoided, or which has a tendency to injure him or her in his or her trade or occupation.  The defamatory statement must be communicated to someone other than the person to whom it refers, and it must refer to a living person.  Defamation communicated verbally it is called Slander, but if it is communicated in writing, it is called Libel.  Most defamation litigation in the business arena concerns the employer’s “qualified privilege” to defame.  Under this concept, employers and former employers are often protected from liability for defaming employees or former employers.  By its very definition, however, the privilege is “qualified,” and not absolute.  It is generally limited to situations in which the employer or former employer is making a good faith communication of information to someone who has a legitimate interest in receiving it.

Breach of Fiduciary Duty:
The formation of a "fiduciary relationship" begins when someone places special confidence and trust in another who has substantially superior knowledge and training, and also relies on that person to act in his or her best interest.  If this trust is knowingly and voluntarily accepted, a “fiduciary” relationship is said to exist.  This places a legal duty on the stronger of the two to act diligently in the best interest of the weaker party and never, under any circumstances to secure any advantage at the weaker party’s expense.  There are a limited number of circumstances in business transactions where a fiduciary relationship comes into play.  Courts tend to rigorously enforce fiduciary duties, and in the event of a willful breach often award punitive damages as well as compensatory damages.  Some common examples of fiduciary relationships are a trustee-beneficiary relationship, a doctor-patient relationship, a lawyer-client relationship and a corporate officer-stockholder relationship.

Sales Commission Disputes:
In avoiding sales commission litigation there is no substitute for an artfully drafted agreement spelling out precisely how and at what rate sales representatives are to receive commissions.  Common usage and custom are also taken into consideration by courts in determining the issues, even where there is a written agreement.

Trade Secrets:
A trade secret is any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.  Trade secret difficulties can be eliminated or, at least, minimized by effective legal language in employment and/or severance agreements, but situations will still arise from time to time where litigation presents the only viable solution.

Dispute Resolution:
Commercial disputes often become legal disputes, the resolution of which typically proceeds along an escalating scale of confrontation ranging from informal settlement negotiation to hardball litigation.  An effective business litigation attorney must have complete mastery of this complex and challenging field of law, but more than that, he or she must also have the patience and personal skills to operate on an informal level, and the aggressive forensic ability and tenacity to claim victory in the courtroom.

Alternative Dispute Resolution:
Business disputes can be resolved traditionally, by way of litigation.  This involves the filing of a lawsuit in court that is then answered by the defendant.  Over a period of months and sometimes even years, a lawsuit makes its way through the system, ultimately to be decided by a judge sitting alone, or by a jury, presided over by a judge.  It is an expensive, tedious and time-consuming process.  The modern trend in the economic world is away from the courthouse in favor of one or the other of two less formal, less expensive, faster and more efficient methods of conflict resolution, called "mediation" and "arbitration".

Mediation:
Mediation is one form of Alternative Dispute Resolution that is gaining in popularity in business litigation matters.  In this process the parties jointly select a mediator, usually a lawyer known by both sides to be honest and fair and, more importantly, known to have experience with the type of issues involved in the mediation. Each side submits written factual summaries to the mediator, together with any legal citations that seem appropriate. 

There is a meeting, usually at the mediator's office.  The mediator meets first with both sides, inquiring whether or not there has been any progress toward settlement, and if so, he or she may invite the parties to use his office to discuss the matter further.  If they decide to do that the mediator usually leaves the room for a time, to give both sides a chance to communicate freely.  Upon returning, if the parties have not reached any agreement, the mediator will meet with one side separately, commenting on that side's factual summary and legal citations, expressing an opinion as to the probable outcome if the issues are litigated, and finally, making a recommendation with regard to settlement.  Then the mediator meets with the other side, separately, and repeats the process.  The mediator gives both sides an opportunity to meet with their respective attorneys and discuss the mediator's interpretation of the case and settlement recommendations.  Then all come together again and the mediator attempts to urge both sides toward a common ground of settlement approximating the recommendation he or she has made.  Frequently, the parties will reach a settlement agreement, either on the terms recommended or upon some other and different terms.  The mediator has no authority to impose a settlement, so the parties remain free to resolve their dispute in court.

Arbitration:
Arbitration is a method of Alternative Dispute Resolution.  In this process, the parties jointly select a lawyer to act as arbitrator.  The idea is to choose someone with an outstanding reputation for personal and professional integrity, with heavy litigation experience involving cases similar to the one in which the parties are currently involved.  The parties may select either "binding" or "non-binding" arbitration.  Some lawyers discourage their clients from participating in "non-binding" arbitration, seeing futility in the expense and inconvenience of a process that may prove a waste of time.  Other attorneys discourage their clients from participating in "binding" arbitration, so that their options are preserved in the event of an unreasonable adverse ruling by the arbitrator.

Arbitration is more like a trial than is Mediation.  For one thing, in binding arbitration the arbitrator's decision is virtually the same as a judgment.  In both types, however, the arbitrator actually renders a decision, as opposed to simply making a recommendation.  Each side submits an arbitration brief, containing a summary of relevant facts, a list of the legal issues thought relevant, and reference to the applicable law.  There is a hearing in the nature of a trial, but much less formal.  It is usually held at the arbitrator's office.  Sworn testimony may be offered, subject to cross-examination.  The attorneys usually join in a stipulation agreeing that certain specified facts are not in dispute.

The rules of evidence are less rigorously applied in arbitration hearings than in trials.  Sometimes the arbitrator announces a decision at the end of the hearing, but more often, the case is taken under submission by the arbitrator, the decision being communicated by letter to both sides within a week or two.  The arbitration process takes a lot of pressure off the court system, and it has proven itself as an effective alternative method for the resolution of disputes.

Employment Law:
Employment law is a growing and ever-changing body of state and federal statutes, rules, regulations, ordinances, judicial precedents and administrative rulings touching on the legal rights and obligations of employers and employees, and of their respective affiliated organizations.  One or another aspect of employment law affects virtually every facet of commercial activity in the modern marketplace.

Software:
Computer software issues are among today’s fastest growing areas of business litigation.  This burgeoning commercial field is broad-based, spanning many levels, including software licensing, maintenance and support, source code escrow, as well as end user licensing, patent and other technology license agreements.  High-tech business litigation also involves software development agreements, purchase and supply agreements, manufacturing agreements and non-disclosure agreements.

If you or someone you know in Southern California needs the assistance of an experienced Los Angeles Business Litigation Attorney, call Anthony Liberatore today at 866-640-5443 ext. 101, or complete the contact form provided on this site to schedule your free consultation.