Business Litigation – Avoiding Breach of Contract Lawsuits
Breach of contract disputes are extremely common. At Buffington Law Firm, our Orange County breach of contract attorneys have handled countless business disputes deriving from breach of contract. In this brief article we will discuss some of the common issues and pitfalls that our Orange County business litigation attorneys often deal with in breach of contract cases.
Nearly all of the time when parties enter into a contract, they are not thinking about future litigation and they do not want or expect litigation. Nevertheless, it happens. When it does, sometimes the contract between the parties, which seemed so clear-cut when they inked the deal, suddenly becomes a minefield of unexpected problems. If you are involved in a breach of contract dispute, we invite you to call us for a free legal consultation in which you will speak directly with an experienced business litigation trial lawyer.
Here are some of the pitfalls to watch out for. It is rare that a contract does not contain at least one of these components. This list is in no way complete.
1. Failure to Identify the Parties Accurately. A common error in contracts, especially contracts drafted by non-lawyers, is to fail to clearly and accurately identify who the parties to the contract actually are. This may sound simple, but for example, sometimes one side intends to create a corporation or limited liability company to do business concerning the contract but has not yet done so at the time of signing. Under this scenario the party signs the contract as though this entity already existed. Not uncommonly, this entity never gets formed or gets formed under a different name, or as a different type of entity than that which appears on the contract. This can vastly complicate matters if the parties later have a breach of contract dispute. Another common error is for one side to sign the contract personally while intending only to sign as an officer of a corporate entity. This can lead to the other side claiming that the signer is personally liable on the contract along with his or her corporation. Paying attention to these kinds of details is crucial. Needless to say, this can greatly increase the risks of litigation and the personal exposure of the signer.
2. Careless Guarantees on the Contract. Too often an individual will agree to personally guaranty the performance of one party to a contract. It may seem obvious when reading this, but there are few more risky things that an individual can do than to sign a personal guaranty on a contract. The guarantor will inevitably be named in any breach of contract lawsuit in which the party being guaranteed is sued, and guarantees are usually very enforceable. When a stockholder of a corporation or other entity gives its contract his or her personal guaranty this does away with the protection of the “corporate shield,” at least for the unlucky person who guaranteed the contract.
3. Hostile Venue and Jurisdictional Clauses. One of the most common errors or pitfalls that a contract may contain is a hostile venue or jurisdictional clause. This is a clause that provides that in the event of a breach of contract lawsuit it must occur within the venue and jurisdiction of a certain state. All too often businesspeople assume that such a provision is “boilerplate” that constitutes “standard language.” Not so. In fact, a venue and jurisdictional clause just about always represents an attempt by one side to slip in a clause that is very favorable to that side. For example, an Illinois business may enter into a contract with a California business in which the Illinois firm will deliver goods in California. Normally, in the event of a breach of contract lawsuit, a contract like this would be governed by California law, as the place for performance of the contract. If the contract provides for Illinois venue and jurisdiction this means that if the California firm sues, or is sued, for breach of contract the suit must occur in Illinois. This can have far-reaching consequences. Illinois is likely a distant, inconvenient forum for the California firm, while it is the Illinois firm’s home turf. The California firm’s attorneys are probably not licensed to practice in Illinois. At a minimum it will likely be necessary for the California business to obtain local Illinois counsel, which will represent a considerable extra expense. Witnesses will have to travel to Illinois for any trial. And never forget about the very real possibility of being “home towned” in court, which means exactly what it sounds like. It happens. While it is sometimes possible to defeat a venue and jurisdiction clause, the general rule is that courts will enforce them.
4. Jurisdictional and Venue Clauses that specify foreign countries. An extreme example of a hostile venue and jurisdictional clause sometimes involves a contract which provides, in a deal involving a US company buying a foreign product, that “any dispute concerning any party’s performance under this contract shall be subject to the laws of, and adjudication shall be administered by, the courts of [European or Asian country].” A clause like this usually makes it next to impossible for an American company to economically sue for breach of contract. Not only will it be necessary to find and hire a foreign attorney, but breach of contract and warranty laws in European and other foreign countries can be, to put it mildly, strange and interesting. This is an excellent example of where a single seemingly obscure paragraph in a contract can completely change the balance of power between the parties of the contract in the event of a dispute.
5. Attorney’s Fee Provisions. An attorney fee provision, which provides that in the event of a lawsuit that the loser must pay the winner’s attorney’s fees, often sounds like a good idea. Unfortunately, often it is not. California’s Code of Civil Procedure, like most states, provides that under most circumstances each side pays its own attorney fees regardless of the outcome. [Cal. Code Civ. Proc. Section 1021]. This is known as the “American Rule.” (By contrast, in Great Britain the loser usually pays the winner’s attorney fees.) This is discussed in more detail in our article here.
Contract drafters often insert attorney’s fee provisions into a contract without much thought. This can vastly increase the dangers of litigation. In moderate-sized contract disputes if the lawsuit lasts any length of time sometimes the attorney’s fees that are at stake are as much money as the parties are fighting about! It happens often. The decision as to whether to include an attorney fee provision is a very important one that we recommend be made after considerable thought and consultation with counsel.
6. Arbitration Clauses. Contract drafters often include an “Arbitration Clause” in a contract without much thought, reasoning that “litigation is expensive” and that Arbitration rather than a Superior Court trial will help lower these costs. Many transactional attorneys, who frankly dislike litigation and have little or no experience with it, do this in every contract that they present to a client. In fact, the decision to include (or not include) an Arbitration Clause in a contract is one of the most far-reaching decisions that the parties can make. If one of the parties finds it necessary to sue on the contract, the Arbitration Clause will change many things about the litigation. Firstly, it is a myth that Arbitration is always less expensive than litigating in court. In commercial and many other kinds of arbitration, there is about as much discovery and law and motion as there is in ordinary court cases, and many Arbitration Clauses specify that discovery will be consistent with the Code of Civil Procedure. Even for relatively small cases, Arbitrator fees can be expected to cost a minimum of $25,000 and often they are much more than this. Every time one side or the other brings a motion (i.e. a discovery dispute, Motion for Summary Judgment, etc.) the Arbitrator will charge several thousand dollars extra to hear and rule on the Motion. Arbitrators normally charge, as of 2015, $450/hour and up. Do not assume that Arbitration is always cheaper than court!
Incidentally, in California, in the context of employment agreements, the employer always pays the entire cost of the arbitrator fees. While employers often like to require arbitration in order to avoid a jury trial, this decision carries significant costs. Right out of the gate, before attorney fees or anything else, the employer has committed to significant arbitrator fees. This provides a strong incentive to employers to settle such disputes with employees.
There are many factors to be considered concerning whether or not to arbitrate besides cost. For example, an arbitration decision usually cannot be appealed. There is no right to a jury in arbitration. These can be good or bad things. It is true that arbitration can sometimes lead to a more informal style of litigating a case, and this too can be good or bad.
All Arbitration Clauses are not the same. One thing to keep in mind about Arbitration Clauses is that they are almost never drafted by litigation attorneys. The no doubt very skilled attorneys who draft almost all Arbitration Clauses are transactional attorneys, who usually have very little if any experience in a courtroom, or with litigation in general. They will often specify, for example, in an Arbitration Clause that “arbitration shall take place before the American Arbitration Association…” or words to that effect. While this may sound plausible (after all “American Arbitration Association” has an authoritative ring to it, does it not?) in fact AAA is in our Firm’s opinion distinctly third string as Arbitration forums are concerned, at least here in California. As of 2015 unlike the major Arbitration firms, AAA has very few retired judges on its panel; it mostly employs attorneys who are trying to break into the lucrative arbitration business. AAA does not maintain many facilities within California, which means that there is a problem concerning the issue as to where the Arbitration Hearing will take place. Beware of Arbitration Clauses which specify AAA as the forum. In our opinion this constitutes a mistake.
The main point that this article is trying to make about Arbitration is that the decision to include an Arbitration Clause in a contract is a very important one. How the Arbitration Clause is written is also very important. Unfortunately, many contract drafters make the decision to include such a clause without giving this decision the consideration it deserves. This carelessness sometimes has serious consequences.
We hope that this article has been helpful to our readers. This list is by no means complete. If you are negotiating, or about to sign, an important contract, one of the most cost-effective things that you can do is to have an attorney review the contract before you sign it. At Buffington Law Firm, our experienced business litigation attorneys have long experience in both reviewing contracts and litigating them in actual court or arbitration. This perspective means that we can help you avoid the many pitfalls which are often present in a contract.