Commercial Litigation

• Quasi-K (implied in law K; used when no K exists; plead in the alternative)
• Claim in equity

• Benefits don't only flow exclusively to one party
• E.g., inmates get health benefits, but county got benefit of having EPIC do their health care for them (as was statutorily mandated)

• 1. D benefitted
• 2. D appreciated benefit
• 3. Unjust for D to keep (unjust enrichment; most important element!)

• 1. P provided valuable services/materials to D
• 2. D accepted materials or services
• 3. D had notice P expected compensation

• Reasonable value of care/services/materials ("As much as one deserves")
• No Injunctive relief
• No benefit of the bargain

• Misrep or misleading required (if not, no unjust enrichment)
• E.g., Limback (US Airways case): City got benefit that they appreciated and it would have been unjust for them to keep it

Yep.

Suit on Sworn Acct

In certain kinds of cases (SoSA cases), the P's pet is verified (has an affidavit) and has evidentiary effect

P has an ongonig relationship w/ D and has sold a number of goods or performed a series of services for D over time; "put it on my tab"

Pet. taken as prima facie ev of P's claim; can survive MSJ on its own

P wins

Pet. must allege the charges are according to terms of K

Pet must allege that charges are usual, customary, and reasonable

• 1. P sold goods/services to D
• 2. Prices charged were just and true/pursuant to K
• 3. Pet contains systematic record of the transaxn (not required by some courts)
• 4. All lawful payments, credits, and offsets applied
• 5. Acct remains unpaid
• 6. Dmgs are liquidated; and
• 7. Pet is filed under oath

Name, date, and charge for each item; details on how total amt owed was figured

• Liquidated damages (sum certain)
• Atty fees (CoA underlying is breach of K)

If P meets 185, D must file sworn specific denial

• 1. P's pet. does not meet TRCP 185 elements
• 2. No receipt of good or services
• 3. Acct is not just and true
• 4. Acct. is not due
• 5. Offsets, payments, or credits haven't been applied

• Denial of P's sworn acct and then providing "in the alternatives" is okay; does not make oath equivocal
• E.g., Denied owing, but then brought aff def

Yes

• Promise enforceable w/o consideration
• Not a breach of K––indep. theory of recovery: Quasi-L
• Equitable theory of recovery
• Often used to sue 3d party not in privity with

• 1. D made clear and definite promise
• 2. P reasonably relied upon promise
• 3. Reliance was foreseeable
• 3. Injury sustained was borne out of reliance

• Required; only amy needed to restore to whole (no benefit of the bargain)
• Tex: Atty fees available

• 1. SoL (4 years)
• 2. Express L
• 3. Unclean hands

4 years (Texas)

Maybe; however, SoF is an equitable theory and you must do equity to receive equity

Yep. Often accompanies breach of K axn

E.g., Fretz Constr: No privity between bank and Fretz, so PE allows Fretz to sue bank

Yep.

• CoA that is both a breach of K and a tort
• Allows atty fees and exemplary damages

Failure to do this could = beach of K AND tort (contort)

• E.g., repairing a water heater creates duty to act w/ reasonable skill and diligence in making repairs:
• 1. In failing to repair water heather: K breach
• 2. In burning down house: Tort duty breach

E.g, Aunt Jane: Obit in paper says, "*unt Jane" instead of her name. This could be a contort.

Yep (WITH exemplary)

• 1. TI w/ K
• 2. TI w/ Prospective Relations

• 1. Valid K b/w P and 3d party
• 2. D knows
• 3. Intentional inducement by 3d party
• 4. No justification
• 5. Damages

• 1. P had valid K
• 2. D willfully and intentionally interfered w/ K
• 3. Lack of justification or privilege
• 4. Damages

Free market allows competition

K rights (public rights) v. Rights of the interfering party (private rights, e.g., fiduciary interest, legal interests, etc.)

D's lack of knowledge: D must know of K and Ps interest in K, or have knowledge of facts and circumstances that would lead a reasonable person to believe there was such a K (e.g., form K that D entered into and knew P entered into)

• 1. Reasonable probability P would have entered into biz relation w/ 3d party
• 2. D intetnionally interfered
• 3. D's conduct was indep. tortious or unlawful
•         - Subsumes priv. or justification elements (prevents ridiculous burden shifting)
• 4. Damages

• D must know of PR w/ 3d party
• NB: Incidental result of conduct that D was engaging in for a purpose, then no intent to interfere

• Anyone can go after another's business; BUT
• 1. Can't induce breach of L
• 2. Can't use unlawful or tortious means
• E.g., False ads, anti-trust violation, misapp of trade secret, fraud, biz disp., assault, illegal boycott

• Lost benefit of K or prospective K/relation
• Persona injury: Mental anguish, inj. to rep.
• This isn't estoppel! Tort, not quasi-K

Nope. Tort.

Similar to defamation (but protects P's economic interst, rather than indiv's rep)––heightened std.

Trade libel

• 1. D published disparaging words about P's economic interests
• 2. Words were false
• 3. D acted w/ malice (not actual malice)
• 4. D lacked priv.
• 5. Publication caused special damages

D is usu. publisher; BUT republishing is grounds, too

≥1 other person has heard or seent it

• 1. Cast doubt on P's ownership, existence, quality of chattels, land, or intangible things; and
• 2. D intended––or should have known––words would cast doubt

Specific ID not necessary; one must only reasonably understand that statement refers to P

Truth is absolute defense; P has BoP of falsity

• Precision: less precise, more likely opinion
• Verifiability: verifiable, not likely opinion
• Contex, including cautionary language
• Type of writing or speech (e.g., joke book)
• NB: False statemetns of objective fact can't be "rephrased" as opinion

False "message" not grounds for DV; to hold otherwise would open floodgates

• Two types:
• 1. Absolute
• 2. Qualified

Similar to immunity; D's motives are irrelevant (e.g., exec., legis., judicial)

• D's motives DO matter
• 1. True, fair, and impartial news reports of official, legis., or judicial proceedings
• 2. Broadcast reporters exercised "due care" to prevent publication or utterance of statement in broadcast

• Special Damages: pecuniary losses that have been realized or liquidated
• Hard Damages: E.g., loss of sale, biz, or credit

• NO PI
• NO equitable relief
• CAN get punitives
• NO atty fees

Nope.

• 1. Simple (misrep and inducement)
• 2. Nondisclosure

• 1. D make false rep to P
• 2. Rep was material
• 3. D knew statement was falst OR acted recklessly as to its truth
• 4. D intended that P act on the statement
• 5. P did act on the statement; and
• 6. Damages

Only material if important factor in P's decision-making; if a reasonable person would place importance on it, it's material

Unlike BD, false statements not limited to statements of objective fact

• False statements of opinion are actionable if:
• 1. D knows statements are false;
• 2. If it's based on or buttressed by false statements of fact; or
• 3. Bolstered by special knowledge

P's reliance must be actual (subj.) and justifiable (obj.)

• 1. D concealed or failed to disclose certain facts to P
• 2. D had duty to disclose
• 3. D knew:
•        - P was ignorant
•        - P had no opportunity to discover
• 4. D intended to induce P into taking/refraining from action
• 5. Reliance; and
• 6. Damages

• Exists when:
• 1. Fiduciary or some other special relation exists
• 2. D discovered new info that made earlier rep misleading or untrue; or
• 3. D created false impression by making partial disclosure

• 1. Economic damages (out of pocket OR benefit of bargain)
• 2. Punitives
• 3. Equitable remedies (recission/reformation)
• 4. Personal Injury (MA)
• 5. Personal Property (Repair costs)
• 6. No atty fees

Nope.

• 1. Limitations (Texas: 4 years)
• 2. P's fault or knowledge of falsity
• 3. SoF
• 4. Ratification

4 years (Tex)

• 1. P had TS
• 2. D used or disclosed the TS: In violation of NDA; after acquiring by improper means; or after acquiring w/ notice that disclosure was improper (Metallurgical)

• 1. Formula, device, pattern, or info
• 2. Modicum o originality to separate from every day knowledge (biz method, recipes, pricing data, customer list, etc.)

• 1. Abstract ideas (e.g., zinc recovery alone)
• 2. Generally known methodologies
• 3. General skills
• 4. Accumulations of pub. domain info

Info must be useable in trade or biz

• 1. Info known outside biz
• 2. Employee knowledge of info
• 3. Measures to keep secret
• 4. Value of info
• 5. Cost of development
• 6. Difficulty of development

Use by which party seeks to make money

Making something known or public

No K needed

Below general stds of commercial morality and reasonably conduct

• 1. Val lost by P
• 2. Vale gained by D (disgorgement; royalty for loss or market value for secret)
• 3. Punitiveness
• 4. Inj. relief
• 5. Aty fees (when in violation of NDA)

Yep, when NDA violated.

• 1. SoL (Tex. 3 years)
• 2. Priv
• 3. Preemption by ©
• 4. Indep. discovery or reverse engineering
• 5. Unclean hands (in cases of inj. relief)

3 years

Protects competition (price becomes artificially high and distorts the allocation of society's resources)

• From Std. Oil making trust agreement to skirt law
• Opposite: Pro-competition

• Sherman Act
• Clayton Act (amended by Robinson-Patman Act)
• FTC Act

Outlaws all Ks, combinations, and conspiracies that unreasonably restrain interstate trade

• 1. Possession of power in relevant market; and
• 2. Willful accession of that power as distinguished from growth or development from superior products, acumen, etc.

• 1. Conduct highly likely to affect commerce (per se illegal) (e.g., horizontal price-fixing; territorial division agreement)
• 2. Conduct that may, but is not highly likely, to affect commerce ("rule of reason" test (AT only against unreasonable restraints); case by case exhaustive analysis of conduct)

• 1. Appreciable economic power in typing market
• 2. Affects substantial volume of commerce in the tied market

Criminal to monopolize or attempt to monopolize any party of interstate commerce

• No problems w/ innocent monopolies
• Any co that gets all biz because no one could do it as well doesn't violate the act
• ONLY conduct to artificially preserve or extend monopoly or anticompetitive conduct to obtain one, are illegal

• 1. D's must possess monopoly power in the relevant market (as little as 2/3 could be monopoly power)
• 2. D obtained or maintained power thru conduct deemed unlawfully exclusionary (i.e., NOT conduct w/ valid biz justifications)

• 1. Specific intent to control prices or eliminate competition in some market
• 2. Predatory or anticompetitive conduct directed at accomplishing unlawful purpose; and
• 3. Dangerous probability of success

• Criminal and civil enforcement
• $350,000 fines and up to 3 years in fed pen
• Corps.: $10M for each offense

• Prevents:
• 1. Price disc
• 2. Exclusive dealing and typing
• 3. M&A's
• 4. Serving as a director of competing corps

• 1. Prevents unfair methods of competition and unfair or deceptive acts
• 2. Seek monetary redress and other relief for conduct injurious to consumers
• 3. Prescribes trade reg rules
• 4. Conduct investigations relating to commerce
• 5. Make reports and legis. recommendatiosn to Cong.

• Free Enterprize and AT Act of 1983: Similar to Sherman and construed in accordance w/ fed. law
• DTPA: Analogous to FTC act
• Both allow for civil suits and enforcement by Tex. Att. Gen.

• Equipment
• Parts
• Service

• Only sell buyer one product if they promise to buy other product exclusively (e.g., service, etc.)
• NB: Seller must have appreciable economic power

Most important step; e.g., Kodak certainly had power in its own market, but may not for greater market (e.g., copiers)

Demand for the tying market

• Allows parties to share info to build claims/defenses; make judgments about whether to proceed
• BROAD rules (but pleading must be specific a lá Twombly and Iqbal)

• Rule 26(b)(1):
• Disc. any nonpriv. matter relevant to any party's claim or defense;
• Disc. a matter relevant to subj. matter involved if: good cause and ct. order

• NB: Not admissibility!
• "Reasonably calculated to lead to disc. of admissible ev."
• Primary exception: Privilege, not reasonably calc'd

• Rule 26(b)(2)(C)
• No unreasonably cumulative or duplicatvie, or can be obtained from a more convenient, less burdensome, or less expensive source

• Initial disclosure
• Interrogatories
• Requests for Production
• Requests for Admissions

• (Fed) Parties must disclose, w/o being asked:
• - Names, addresses, and number of potential witnesses
• - Docs and tangible things that may be used to support claims (exhibits)
• - Computation of damages (π)
• - Ins policies (∆)

W/in 14 days after 26(f) conference

• Parties meet and confer at least 21 days before cts final scheduling conference
• Discuss:
• - Settlement
• - Preservation of disc.
• - Disc. plan (26(f)(3))
• - Rule 26(a) disclosures

20

90

21

≤14

≤14 days

90

• Rule 33:
• Q's served on another party
• Answered in written form and signed by atty and party
• Same effect as testimony
• Can produce biz recs as responses

W/in 30 days

25

• 1. Overbroad nor reasonably calc'd
• 2. Unintelligible due to vague and ambiguous terms
• 3. Unduly burdensome
• 4. Duplicative
• 5. Private/financial info w/o need
• 6. Legal opinion
• 7. Seeks protected info
• 8. Fishing expedition

• "Documents and tangible things"
• Rule 34:
• Production or inspection of docs, ESI, tangible things

Unlimited

Parties and nonparties (w/ subpoena)

Reasonable particularity

DV001, DV002 . . . DV107

• Rule 36
• Used to expedite litigation and to dispose of uncontested issues

Unlimited (but subj. to rule 26 (burdensome or duplicative)

30 days to object or answer (if not, deemed admitted)

Can be w/drawn or amended upon motion

Admit, denied, "not enough info" (viewed as denial)

• Rule 30:
• Follows written disc.; expensive!
• Examine and c-x witnesses like at trial (although more informal; primary purpose is to get info)

• To schedule a depo of any nonparty witness
• NB: Non-parties needn't show up unless subpoenaed

• 1. Parties (generally scheduled between parties, but can be unilaterally scheduled, so long as notice is reasonable (if not, QUASH it))
• 2. Can directly notice biz entity

• Entity must designate one or more persons to answer questions
• Rule 30(b)(6): Corp. rep. depo

Video, court reporter transcribing (if using at trial, be sure to video record!)

Each side gets 10; more require party consent or ct. permission

Any purpose

7 hours for one day

Can't do it unless ct. gives permission

• In person
• Telephone
• Remotely

• "Objection form" is main objection (can clarify if asked; done this way to prevent witness coaching)
• NB: Objections made but repo proceeds subject to it
• NB: If you don't object during depo, waive objection to form not substance (e.g., hearsay)

ONLY violation of priv

Voicemail, email, etc.

• Meet and confer
• Must produce all ESI that will be used to support claims (or description of where it's contained)

• 1. No production if not reasonably accessible because of undue burden or cost
• 2. BUT, party must ID and has burden of proving undue burden or cost (ct. can impose fee shifting)

Rule 26(b)(2)(iii): Burden or expense of the proposed disc. outweighs the likely benefit

• 1. Amt in controversy
• 2. Party resources
• 3. Importance of issues at stake
• 4. Importance of proposed discovery in resolution of issues

STRUCK DOWN

• Descending order of importance:
• 1. Specificness of request
• 2. Availability from other sources
• 3. Cost of production v. amy in dispute
• 4. Cost of production v. parties' resources
• 5. Ability of parties to control costs
• 6. Importance of issues in case
• 7. Benefits to parties in obtaining info

• 1. Determine data type (accessible = normal rules; inaccessible = proceed to step 2)
• 2. Do a sample
• 3. Zubulake cost-shifting test

Producing party can notify receiving party and rec. party must return, sequester, return material, or present to court under seal.

Rule 26 does not address whether inadvertent disclosure waives priv.

26(f) conference must address how to treat privilege/trial prep materials.

• Two common types:
• Clawback: Production w/o intent to waive does not waive.
• Quick Peek: Produce materials for initial examination; request what you want, and producing party then screens for priv.

Allowed; may need to provide technical support/software to help rec. party access

ESI is subject to production

• Can request form to produce ESI in:
• Native format (default)
• Searchable
• Non-searchable
• Paper

Producing party can object to requested form

• Inability to redact
• Inability to Bates label
• Rec. party may create new docs unfamiliar to witneses
• Can by accused of "doc dump"
• Metadata

Data about data

• System (when file created, accessed, modified, titles)
• Application (secret things inside doc (past versions, changes, etc.)

"Safe Harbor" provision

Party can't be sanctioned, absent exceptional circumstances, for losing ESI as a result of routine, good-faith operations

Good faith may require party to suspend features of routine operations to prevent loss of 'litigation hold' material

Rule 37(a)

Must certify that you consulted with other party with your motion to compel.

• Ct. must require compelled party (and atty) to pay reasonable expenses incurred in filing motion;
• BUT, must not order if:
• - Motion to Compel was filed before conferring;
• - The other party's nondisclosure, response, or objection was substantially justified; or
• - Other circumstances make award unjust

• Court must require movant (or atty) to pay expenses incurred in defending
• BUT, Ct. must not so order if:
• - Motion was substantially justified; or
• - Award of expenses would be unjust

Court may:

• - Deem established matters covered by disc.;
• - Prohibit party from making arguments;
• - Staying or dismissing the proceedings; and
• - Monetary sanctions

• Arb. agreements interpreted under K rules, so revocable when unconscionable
• (Prevents oppression and unfair surprise)

• - Atmosphere in which K was made
• - Alternatives available to parties at the time
• - Bargaining power; and
• - Ultimate K fairness

FABA

How did parties arrive at the terms in controversy?

Were there legitimate commercial reasons justifying the terms of arbitration?

• Focus on assent and facts surrounding bargaining process
• NB: Party must have reasonable opportunity to discover clause's existence

Focuses on fairness of resulting agreement

• - Neutral arbitrators
• - More than minimal discovery
• - Requires written award
• - Provides for same relief available in ct; and
• - Division of costs

CRAND

• 1. Failure to issue written lit. hold when duty arises.
• 2. Failure to ID key players and ensure their electronic/paper records are preserved
• 3. Failure to cease deletion of email
• 4. Failure to preserve recs of former employees
• 5. Failure to preserve backup tapes when sole source of relevant info
• 6. Failure to sufficiently supervise employees' document collection.

Less sweeping failures than gross neg. failures

• Can't have TIK if there was no valid K! (Note: A K being voidable is not defense; only a void K)

Horizontal Pricing Agreements; territorial division agreements

D can interfere by inducing 3d party to breach OR preventing 3d party from executing the K

Not actual malice

• Defendant:
• 1. Knows the statement is false;
• 2. Acts w/ reckless disregard for truth;
• 3. Acts w/ ill will; or
• 4. Intends to interfere w/ economic interest

FIRE

Not generally known by or available to the public.

Scope of Discovery

Initial Disclosures

Conference

Oral Depos

Interrogatories

Requests for Production

Requests for Admissions

Mot. to Compel

ESI Safe Harbor