QUESTIONS & ANSWERS

Commercial Litigation FAQs

• What is commercial litigation?

• What are some common types of complex commercial litigation?

• What is a breach of contract and what damages can I recover in the event of a breach of contract?

• What should I do if I am involved in a commercial litigation dispute?

• Do shareholders have any legal responsibility to one another?

• What is alternative dispute resolution?

• What is arbitration?

• What is mediation?

What is commercial litigation?
Commercial litigation is the broad area of law that deals with resolving disputes in business and commercial settings stemming from professional and commercial relationships through alternative dispute resolution methods and court trials. Commercial litigation can cover a variety of civil matters on both state and federal levels.

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What are some common types of complex commercial litigation?

• Environmental law

• Banking and creditor/debtor issues, including lender liability

• Securities

• Business torts

• Regulatory disputes

• Constitutional law

• Products liability

• Professional liability

• Construction law

• Toxic torts

• Breach of contract

• Antitrust, unfair practices and trade regulation

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What is a breach of contract and what damages can I recover in the event of a breach of contract?
Failure to perform as specified in a contract without legal excuse is a breach of contract. The following remedies are types that may potentially be recovered in the event of breach of contract, depending on the terms of the business relationship:

• Compensatory Damages - money to reimburse you for costs to compensate for your loss.

• Consequential and Incidental Damages - money for losses caused by the breach that were foreseeable.

• Attorney fees and costs - only recoverable if expressly provided for in the contract and by statute.

• Liquidated Damages - these are damages agreed upon in the contract that would be payable in the event of breach.

• Specific Performance - a court order requiring performance as specified in the contract.

• Punitive Damages - these damages are awarded to punish a person who acted in an offensive manner in an effort to deter the person and others from repeated occurrences of the wrongdoing.

• Rescission - the contract is canceled and both sides are excused from further performance and any money advanced is returned.

• Reformation - the terms of the contract are changed to reflect what the parties actually intended.

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What should I do if I am involved in a commercial litigation dispute?
One of the most important things you can do is to retain all paperwork regarding the dispute. Not only does a paper trail make your lawyer’s job easier, but judges and juries may find your case more believable when documents support your position. Contact an experienced commercial litigation lawyer at Howard, Stallings, From & Hutson, P.A. We may be able to advise you so that litigation can be avoided or set the stage in the event that litigation is required.

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Do shareholders have any legal responsibility to one another?
The traditional legal view states that shareholders have no special responsibilities to one another. In closely held businesses, however, majority shareholders can damage the interests of small shareholders. Since most investors do not want to buy closely held shares, minority shareholders have few options when their interests are compromised. In response, courts developed fiduciary duties among shareholders of closely held businesses. Contact Howard, Stallings, From & Hutson, P.A. to discuss your shareholder responsibilities.

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What is alternative dispute resolution?
Alternative dispute resolution is the method by which legal conflicts and disputes are resolved privately rather than through litigation. These disputes are usually resolved through either mediation or arbitration. It typically involves a process less formal than traditional court proceedings and includes the appointment of a third party to preside over a hearing between the parties.

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What is arbitration?
Arbitration is the referral of a dispute to one or more independent third person(s) who act(s) as judge and jury. In advance of the arbitration, the parties agree to be bound by the arbitrator's decision. Cases that are arbitrated are generally resolved faster than conventional lawsuits because arbitration is less formal and court congestion is not a problem. However, depending on the circumstances, arbitration is not always in the client’s best interest.

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What is mediation?
Mediation is an informal process in which a mediator helps to negotiate a mutually acceptable resolution between disputing parties. Unlike arbitration or litigation, mediation does not impose a solution. If the parties cannot negotiate an acceptable settlement, they may still arbitrate or litigate their dispute.

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