Business Matters, and Litigation
The Scarlett Law Group, based in San Francisco, is a national law office specializing in the trial and resolution of civil actions in California and throughout the United States. The Scarlett Law Group has been given the highest rating possible “AV” and is on Martindale Hubbell’s Bar Register of Preeminent Lawyers. The Scarlett Law Group has obtained outstanding results in commercial and business litigation cases and is well suited to handle your commercial transactions, business matters or litigation needs. The Scarlett Law Group offers creative and flexible fee structures. Please feel free to contact us for a free initial consultation concerning your matter.
The Scarlett Law Group handles commercial transactions, business matters and litigation in these areas:
- Business Formation (Corporations, Limited Liability Corporations (LLC), Sub-Chapter S Corporations, Partnerships, Limited Liability Partnerships (LP), Joint Ventures, etc.)
- Disputes Among Owners, Partners, Members, Joint-Venturers
- General Business Legal Counsel
- Breach of Contract
- Breach of Fiduciary Duties
- Contract Interpretation Disputes
- Specific Performance of Contracts
- Commercial Litigation, Arbitration and Mediation of disputes
- Business Torts:
There are at least 23 common law business torts recognized by most states. Indeed, some variations of each claim would necessarily bring the number of business torts much higher. These claims include, but are not limited to, the following types of claims:
Generally speaking, the liability case for common law fraud involves five elements. The first element is a false representation of material fact.
In many jurisdictions, the false representation must relate to a matter of existing or past fact, not merely an expression of intent to act in the future or an expression of promise. However, a promise is actionable as fraud if the promisor had no intention of performing the promised action in most jurisdictions.
The plaintiff carries the burden of providing that the defendant had no intention of performing the promise. In most instances, whether the defendant intended to perform is a question of fact to be determined from all the circumstances.
The second element requires that the false representation be made with knowledge of its falsity, recklessly, or without reasonable grounds for believing its truth.
The third element is intent to induce reliance. Intent to deceive traditionally is not required as long as the plaintiff proves an intent to induce reliance.
Justifiable reliance is fourth essential element of a claim for fraud. Reliance is usually held not to be justifiable where it is demonstrated to be unreasonable in light of the plaintiff’s intelligence and experience.
The last element of a claim for fraud is that of damages. Generally speaking, where fraud has been proved, general damages, special damages, and punitive damages may lie.
Unfortunately, in the commercial setting, fraud is experienced more often than not. The Scarlett Law Group recently successfully resolved a case involving alleged property management fraud.
When an individual has an ownership right, or immediate right to the possession of property, and where that property sustains damages due to (1) a defendant’s wrongful act or disposition of the plaintiff’s property; and (2) a defendant’s intent to exercise dominion over the plaintiff’s property, then a claim for Conversion is generally allowed.
Most jurisdictions recognize that “personal property” includes documents such as bonds, notes, bills of exchange, stock certificates or warehouse receipts. Even money can be the subject of conversion, but only if it is a specifically identifiable fund or corpus, although the actual bills need not be earmarked.
The element of “wrongful act or disposition” requires an actual interference such as taking, destruction, alteration, transfer, use, withholding, misdelivery or failure to return.
Remedies for a conversion can include the specific recovery of the property plus damage for loss of use or damages based on the value of the property based on the theory of forced sale, or quasi-contractual restitution based on unjust enrichment when the plaintiff’s conduct has waived recovery for tort.
Negligence is defined in common law as the breach of a duty owed to the plaintiff which was the direct and proximate cause of damage to the plaintiff.
Since the intent to cause injury or harm is not extant in negligence actions, a defendant’s unintentional harm to a business interest may nonetheless be actionable, and recovery may be had, where a duty was owed and breached thereby causing damages.
(4) NEGLIGENT MISREPRESENTATION
Negligent misrepresentation is a lesser form of fraud and deceit. Generally speaking, six elements are required for satisfaction of the claim.
First, there must be an actual false representation. Second, the false representation must made for business purposes in the course of a business or profession. Third, the false representation must be made without reasonable grounds for believing it to be true. Fourth, the false representation must be made with the intent on inducing reliance. Fifth, the plaintiff must have justifiably relied. Finally, the sixth element requires that there be damage caused thereby.
(5) MALICIOUS PROSECUTION
Where malicious prosecution is recognized, there are generally four elements required in order liability be established. First, there must have been a favorable, though not necessarily final, termination of a (2) prior separate proceeding (either criminal, civil or administrative), (3) prosecuted without probable cause and (4) with malicious intent (ill will or improper purpose).
As with fraud, damages involved in successful malicious prosecution actions include general damages, special damages, as well as, punitive damages.
(6) ABUSE OF PROCESS
Abuse of Process is defined as the use of “legal process, whether criminal or civil, against another to accomplish a purpose for which it is not designed.”
“Process” includes, but is not limited to, execution, injunction, summons, notice of taking deposition, discovery, and excessive or wrongful attachment.
First, there must be a willful act in the use of the process which is not proper in the regular course of the proceeding. Secondly, there must be an ulterior purpose.
(7) TORTIOUS INTERFERENCE WITH CONTRACT
In order to establish a claim for Tortious Interference with Contract, six elements must usually be established:
- A valid existing contract;
- That defendant had knowledge of;
- That defendant intended to induce breach of;
- That the contract was in fact breached or performance was rendered more difficult;
- Causation; and
- Actual damage.
(8) INTERFERENCE WITH EMPLOYMENT RELATIONSHIP
Tortious Interference with Employment Relationship requires four elements:
First, there must be an interference with employment relationship. Secondly, the interference must be intentional or negligent. Third, and Fourth, there must be causation and actual damage.
(9) INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
Generally speaking, there are five elements applicable to this particular tort. First, there must be an economic relationship containing the probability of future economic benefit. Secondly, there must be knowledge by the defendant third party of the existence of that relationship. Third, there must be intentional or negligent acts on the part of the defendant designed to disrupt the relationship. Fourth and Fifth, there must be actual disruption of the relationship and damages caused thereby.
There may be a recognized “Competitor’s Privilege” to interfere, even intentionally, with prospective contractual relations so long as wrongful means are not used. Each jurisdiction varies on this point.
(10) INVASION OF PRIVACY
Depending on jurisdiction, Invasion of Privacy may be both a common law claim and statutory tort. At common law, the prima facie case for liability generally involves four elements. The first element is an “invasion” which may consist of eavesdropping, shadowing, trailing, wiretapping, electronic eavesdropping, or the covert use of voice stress analyzers, or commercial or non-commercial use of one’s name or picture. The second element requires that the invasion be non-oral. The third requirement is that the invasion be of the right to live an ordinary, private life without subjection to unwarranted or undesired publicity. Lastly, the invasion must have injured the plaintiff’s feelings. Thus, the injury is not to reputation, as in defamation, but is an injury to one’s peace of mind.
(11) INTENTIONAL INTERFERENCE WITH THE RIGHT TO PURSUE A LAWFUL BUSINESS
This claim is straightforward in that the elements are: (1) An intentional; (2) interference; with (3) a lawful business, calling, trade, or occupation.
(12) MISAPPROPRIATION OF TRADE SECRETS
To establish the tort of Misappropriation of Trade Secrets, there must first be in existence a “Trade Secret”. A trade secret is defined generally as “any formula, pattern, device or compilation of information which is used in one’s business, and which gives one a competitive advantage over one’s competitors who do not know it or use it.” Trade secrets need not be so unique as to be patentable, but the competitive advantage element necessarily requires some uniqueness.
Secondly, there must be an appropriation through use, disclosure or non-disclosure.
Third, the appropriation must be wrongful. Generally speaking, wrongful appropriation means a breach of an express or implied contract, or a breach of trust or fiduciary duty.
(13) SLANDER OF TITLE
Slander of Title is defined as the (1) oral or written; (2) intentional; (3) false disparagement of the; (4) title to real or personal property; (5) causing; (6) actual pecuniary damage.
It is not necessary to show that any specific business deal was impaired. The recoverable damages consist of the general impairment of vendability plus costs of litigation or other process necessary to remove doubt cast on title.
Examples of slander of title include the recordation of an abstract of judgment despite a stay of execution, the placing of a sign on a neighbor’s house falsely announcing the cloud on the title, the false announcement by a lessor to a buyer of a lease from the lessee that the lease is invalid; and the filing of a master plan by a developer which falsely implied the right to use plaintiff’s neighbor’s property.
(14) TRADE LIBEL
Generally speaking, there are six necessary elements for Trade Libel which are (1) intentional; (2) disparagement [untrue statement of fact]; (3) of the quality; (4) of property; (5) causing; (6) specific pecuniary damage.
The key difference between libel and trade libel is that the essence of libel is non-monetary damage to the reputation of an individual, whereas specific money damage to a business is required for trade liable.
(15) TRADEMARK INFRINGEMENT
Basically, this tort sounds in common law unfair competition. Most states now proscribe trademark infringement statutorily, and thus reference to appropriate statutes are required.
(16) TRADE NAME INFRINGEMENT
Generally speaking, this tort also sounds in common law unfair competition, although statutory codification is now taking place in most jurisdictions. .
(17) UNFAIR COMPETITION
Common law unfair competition is an umbrella for a variety of arguably separate torts, such as trademark and trade name infringement, “palming off”, “passing off”, and “imitation of product”.
The modern trend in both the statutes and common law is to expand the scope of liability (unfair competition), imposing increasingly higher standards of fairness on commercial morality and trade.
(18) CONSTRUCTIVE EVICTION
The traditional elements of Constructive Eviction are: (1) the landlord commits or omits an act or acts which (2) render the premises or a substantial portion thereof unfit for the purposes for which they were leased.
Because constructive eviction is not a contract action, punitive damages may be available for wrongful eviction obtained with the use of oppression, fraud, or malice.
(19) CONSPIRACY TO INDUCE BREACH OF CONTRACT
This tort is a species of the tort of civil conspiracy. Four elements are involved: (1) conspiracy; (2) wrongful inducement or procurement of breach o contract; (3) causation; and (4) actual damages.
(20) CIVIL CONSPIRACY
The elements of a case for civil conspiracy are as follows: (1) the formation and operation of a conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting from such act or acts.
The wrongful acts may be any civil wrongs; for existence, fraud or inducing breach of contract. A key litigation consideration is the availability of joint and several liability.
Most states now codify (or set forth via statute) the elements of nuisance.
Generally speaking, anything which is injurious to the health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway is a nuisance.
In general, the common law protects a copyright before general publication, and compliance with the Federal Copyright Law, protects it thereafter. There is, however, pre-emption. The laws of each jurisdiction must be closely examined.
(23) PRODUCTS LIABILITY
Products Liability is, of course, not a tort in itself but rather a generic term covering four distinct theories of recovery, only two of which sound in tort. The other two are contractual in nature. One injured in using the product may sue on contract on the basis of an express contractual warranty where an untrue statement of fact about the quality of the product was made. Other possible contractual actions are based upon implied warranties of merchantability and fitness for a particular purpose.
Negligence is a tort theory of recovery for injuries caused by a defective product. Yet another theory of recovery is strict liability in tort for a defective product. In order to establish such a claim, generally, the plaintiff must establish that (1) the defendant made the product; (2) the product was defective when it left the defendant's control; and (3) it proximately caused damages.