Pursuing a claim for legal malpractice as a plaintiff can be challenging. In many jurisdictions, it is necessary to prove the “case within a case” – i.e., that “but for” the attorney’s negligence, the plaintiff would have recovered a judgment in the underlying action. In Pennsylvania, for example, our Supreme Court has noted that “a […]
Bankruptcy Court Holds Debtor Accountable For “Inequitable Conduct”
After obtaining an approximately $725,000 trial judgment against a client’s former business partner, Mr. Clayton began to collect against the defendant’s real-estate holdings, and also bank accounts, even as the defendant pursued appeal. But then, just two hours before the New Jersey Superior Court issued an Order dismissing the defendant’s appeal, the defendant responded by […]
Of Noncompetes, Crows and Radii
A client called me recently to ask whether the geographical limitation in a noncompete agreement is typically measured by driving distance or “as the crow flies” when not clearly specified in the agreement. The question is pertinent because measuring “as the crow flies” will typically extend the geographic reach of the noncompete. What I found […]
Court Won’t Let ERISA Fiduciaries Off Hook For Cyberfraud
In a victory for Mr. Clayton’s clients, a federal court has denied two motions to dismiss their ERISA claim that were filed by a 401(k) plan’s outside administrator and custodian. Mr. Clayton brought an ERISA suit in federal court on behalf of his clients – a law firm, its 401(k) plan, and one of the […]
Duelling Jurisdictional Clauses: Which Prevails When A Contract Provides For “Exclusive” Jurisdiction In Both Arbitration And Court?
You need to file suit for a client, but the controlling contract has conflicting clauses providing for jurisdiction in both court and arbitration. How to proceed? That’s the question I faced recently. Unfortunately, business contracts have sometimes been cobbled together carelessly, leaving discrepancies that can make their application unclear. The contract I encountered, which was […]
“Reasonable Expectations” Versus Contractual Rights Of Termination: Shareholder Employment In The Closely Held Corporation
A case I recently litigated pitted a shareholder’s alleged “reasonable expectations” to continued employment, under a shareholder oppression statute, against the employment agreement he had signed allowing for termination “with or without cause.” The result might surprise many business owners. Under New Jersey law (as in many states), a claim for minority shareholder oppression has […]