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Category Archives: Business Litigation

Dynamex Update: Not a Passing Fancy

In previous blogs we have discussed the California Supreme Court’s seminal decision in Dynamex Operations West, Inc. v. Superior Court, which established a new and extremely limiting test for determining whether a worker is an employee or independent contractor.  Initially, there was some debate over how expansive it might prove to be, and how much […]

Uncertainty in California over Forum Selection Clauses

In international business transactions, contracting parties from different countries often select a neutral third country to supply the applicable governing law as well as the exclusive forum for resolving disputes.  The reason for this is obvious:  each party is wary of agreeing to litigate disputes in the adverse party’s home country or governed by the […]

A Practical Guide to the Anti-SLAPP Statute: How to Avoid Litigation Purgatory (or Shorten Your Stay)

In 1992, California enacted the anti-“SLAPP” (strategic lawsuits against public participation) statute to combat “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”[1]  By definition, a SLAPP suit is an abuse of the judicial process — the plaintiff does not expect […]

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 common-sense assumption can lead to unfortunate errors in legal strategy, however. Section 1717(b)(2) of the […]

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 […]