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AWARDING ATTORNEYS’ FEES (OR NOT)

A contractual clause requiring an award of attorneys’ fees to the prevailing party in litigation can have a significant impact on the parties’ decisions to file or pursue a case.  On the one hand, a potential plaintiff who believes he has a valid claim may be emboldened to sue.  On the other hand, the prospect […]

EXPERT RETENTION AND SUMMARY JUDGMENT

Summary judgment motions play an important role in business disputes; they can create settlement leverage, narrow trial issues or, if granted for an entire case, achieve a favorable judgment without a trial.  As its name suggests, a motion for summary judgment asks a court to “summarily” adjudicate a claim or lawsuit without the need for […]

CALIFORNIA SUPREME COURT INVALIDATES ARBITRATION CLAUSE

Once again, the California Supreme Court has waded into the arbitration thicket.  This time, the Court found unenforceable an arbitration clause that prohibited a consumer from seeking injunctive relief on behalf of the public, not just in the arbitration, but in any forum whatsoever.  If nothing else, this latest decision highlights the dangers of over-reaching […]

JURISDICTION OVER CORPORATIONS QUIETLY RESTRICTED – PROBABLY FOR GOOD

In a major, although widely unappreciated shift, the United States Supreme Court has significantly restricted the ability of courts to exercise jurisdiction over corporations.  This change reduces the likelihood that a corporation has to appear in a court to answer for alleged conduct that has little to do with their operations in that state.  No […]

Voluntary Dismissals’ Impact on Attorney’s Fee Provisions in California Contracts

Many contracts provide that in the event of a lawsuit the prevailing party shall be entitled to recover its reasonable attorney’s fees.  One would naturally think that the defendant is the prevailing party when a lawsuit has been dismissed.  This commonsense assumption can lead to unfortunate errors in legal strategy, however. Section 1717(b)(2) of the […]

What to Do When an Employee Becomes a Competitor

A Guide for Businesses Large and Small. Immediate First Steps When key personnel leave to start or to join a competing business, there is often a scramble to save clients and to focus on damage control.  The company should also immediately undertake two measures to preserve its legal rights. First, the company should take steps […]

Update: The Right to Cumis Counsel

A recurring issue in business litigation concerns when an insured may choose its own counsel in a dispute tendered to its insurer.  A recent California case clarifies the current criteria governing this issue.  St. Paul Mercury Insurance Company v. McMillin Homes Construction, Inc., 2016 WL 5464553, (S.D. Cal. Sept. 29, 2016). Under standard general liability […]

ENFORCING ARBITRATION CLAUSES

Last month, my colleague, Alan Steinbrecher, discussed the risks of electing to litigate despite the existence of a binding arbitration provision.  This month, I will explore two recent California court decisions that demonstrate the different views courts take of the enforceability of such provisions. In the first case, the Ninth Circuit held that a motion […]

Beware Waiting to Compel Arbitration

Some defendants, when facing a lawsuit filed in federal court, may elect to litigate in that court even though a binding arbitration provision is available to them. The reasons for doing so may be unimpeachable, such as availability of certain types of relief or the potential for precedential decisions. A strategy to delay making that […]