Business Litigation, Arbitration, Mediation FAQs

Business Litigation, Arbitrations & Mediation

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

2. What are some common types of complex commercial litigation?

  • Antitrust, unfair practices and trade regulation
  • Banking and creditor/debtor issues, including lender liability
  • Breach of Contract
  • Business torts
  • Constitutional law
  • Construction law
  • Environmental law
  • Products liability
  • Professional liability
  • Securities
  • Toxic tort

3. Can corporations avoid consumer class actions?
Corporations often use arbitration clauses in consumer sales agreements in order to limit the types of dispute resolution available should difficulties arise. Such a clause requires that the parties to the agreement resolve any disputes through arbitration. Since a class action lawsuit involves direct judicial oversight, arbitration clauses thwart the development of a consumer class. Instead, each individual consumer must pursue his or her own arbitration procedure against the contracting business.

4. What is a Deceptive Trade Practice?
The Federal Trade Commission Act defines unfair or deceptive practice as conduct that offends public policy as established by statute, common law or other means. Deceptive trade practices are immoral, unethical, troublesome or corrupt, and substantially injure consumers, competitors or other business people.

5. 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.

6. 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, or provisions of a contract, without legal excuse is a breach of contract. The following damages can be recovered in the event of breach of contract:

  • 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.
  • Liquidated Damages - these are damages specified in the contract that would be payable if there is a fraud.
  • Specific Performance - a court order requiring performance exactly as specified in the contract.
  • Punitive Damages - this is money given 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.

7. 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. An attorney may be able to advise you so that litigation can be avoided or set the stage in the event that litigation is required.