Attorneys who draft contracts regularly insert forum selection clauses into them that require the parties to litigate their disputes in certain locations. Attorneys who litigate breach of contract claims regularly turn to those clauses before filing suit to determine the proper venue in which to file their claims. But a word to the wise – if you draft or rely on a forum selection clause,...
A prospective client tells you he invented a new technology and entered into a licensing agreement with a company that wished to commercially exploit the technology. Shortly after signing the licensing agreement, the licensee set up a foreign company that immediately started manufacturing and selling products using your prospective client’s proprietary technology in violation of the licensing...
Litigation over promissory notes and related loan documents tends to be formulaic. Frequently, a borrower in clear default of some of the material terms of those documents (usually the obligation to repay the money borrowed) will tell his or her attorney that the loan documents were signed in reliance on a variety of representations the lender has since ignored or repudiated, giving rise to...
When lender and borrower relationships break down – especially where the borrower defaults in payments owed to the lender – the borrower often feels (and perhaps justifiably so) that the lender is treating them unfairly or is acting contrary to certain oral promises that may have been made at an earlier time. For instance, at the beginning of a lending relationship, the lender may tell the...
The Court of Appeals recently upheld the dismissal of malpractice and fiduciary duty claims alleging that an accountant failed to “keep an eye” on the company’s controller who later engaged in a two year long embezzlement scheme, stealing over $400,000. Banker & Brisebois, Co. v Maddox, et al., unpublished per curiam opinion of the Court of Appeals, No. 310993 (April 29, 2014).
The...
We all know that the default burden of proof standard in civil cases is the “preponderance of evidence” standard. In explaining this standard to a jury, many of us resort to the proverbial tipping of Lady Justice’s scales. We also know that fraud claims require proof by the higher “clear and convincing” standard. Imitations of Lady Justice do not work as well with this standard, but we still...
Few accusations raise the hackles of clients more than claims that they defrauded someone. Understandably, the client accused of fraud wants his or her attorney to prove that he or she was honest and forthright in the parties’ dealings. When you win a summary disposition motion dismissing a fraud claim, you will certainly have one happy client.
However, when you take discovery in a fraud...
The effects of the housing bubble have been felt by just about everyone, and lenders are certainly no exception. And while “cutting one’s losses” brings joy to virtually no one, lenders are learning just how critical the timing and art of negotiation can be in realizing the best possible outcomes out of an imperfect set of scenarios.
With a rash of so-called “80/20” mortgages working through...
