Commercial & Business Litigation

Practice Points

What you need to know in a quick-to-read format. Find all of the Commercial & Business Litigation Committee’s Practice Points in this archive.


Tips for Conducting “Moot” Practice Sessions for Virtual Litigation Proceedings
By Alex M. Bein – April 7, 2021
Dry runs will help your actual proceedings go smoother and more successfully.

Seven Key Takeaways on Handling First Assignments
By Leigh Joyce – March 23, 2021
Practical lessons that new attorneys should take to heart.

Four Tips for Practicing Before the Trademark Trial and Appeal Board
By John E. Ottaviani and René P. Moniz – March 23, 2021
The rules look similar to the Federal Rules of Civil Procedure, but there are differences.

Four Key Factors to Consider When Retaining an Expert Witness
By Juli Saitz – February 22, 2021
Practitioners should be aware of newly developing case law disapproving of incentive awards for class action plaintiffs.


Five Tips to Avoid Costly Fee Disputes
By Michael S. LeBoff – December 16, 2020
How you can improve your collections and identify risks of disputes with clients

Class Action Incentive Awards Face an Uncertain Future from the Courts
By Nicholas M. Cassidy – December 16, 2020
Practitioners should be aware of newly developing case law disapproving of incentive awards for class action plaintiffs.

Five Tips for the Brave New World of Virtual Depositions and Trials
By Jennifer Axel – December 15, 2020
The legal profession has been forced to evolve to gathering and presenting evidence virtually, requiring practitioners to modify their skills and strategy accordingly.

Why You Should Consider Opting for Arbitration During the Coronavirus Pandemic
By Joe Meadows – November 30, 2020
With civil cases piling up and most jury trials postponed, arbitration (and other forms of ADR) may be the answer to efficient conflict resolution during the COVID-19 crisis.

Tips for Trials in the Time of COVID-19: Practical Lessons Learned
By Melissa Ho and Edward Novak – November 18, 2020
Trials are difficult and stressful in the best of times, but during the COVID-19 pandemic, courts have made changes to the process that require some advance planning.

Client Self-Collection of ESI Is Risky Business
By Robert W. Wilkins – November 11, 2020
Tips on advising clients how to avoid the risks of self-collection

Letters Rogatory for Discovery in Canada: What U.S. Attorneys and Clients Need to Know
By Byron Shaw – October 29, 2020
Practice tips and considerations for seeking discovery in Canada

Five Considerations for a Cross-Border Strategy to Recover on Claims against Foreign Parties and Assets
By Rick S. Rein – September 18, 2020
Pursuing legal relief against foreign parties and assets is a complex task that requires a well-developed plan to achieve a cross-border recovery.

Apex Depositions: Best Practices for Depositions of C-Suite Executives
By Charles W. Stotter – August 27, 2020
Strategies to take and defend depositions of top executives

How Do You Get a District Court to Address an Unresolved Issue When It Has Lost Jurisdiction Due to a Pending Appeal?
By Michael K. Robertson – August 25, 2020
Best practices for using Federal Rule of Civil Procedure 62.1 and Federal Rule of Appellate Procedure 12.1 to your advantage.

Jury Selection Over Zoom: A Brave New World
By Charles W. Stotter – August 4, 2020
See how a Florida trial court conducted jury selection over Zoom in the age of the pandemic.

Four Tips for Navigating a Discovery Dispute
By Jared M. Katz – June 29, 2020
Focus on the fundamentals to maximize your chances for success.

Lawyer Beware: Four Tips to Avoid Email Scams Targeting Lawyers
By Paula M. Bagger – June 17, 2020
Advance-fee fraud does not always come from phony princes in far-off lands, nor does it always target internet newbies. Learn how to protect your practice from this growing trend of nefarious “clients.”

Five Tips for Using Proportionality to Limit Wild Goose Chases in Discovery
By Paul M. Kessimian – June 11, 2020
Some concrete ways to make discovery more efficient and effective.

How to Handle the Increased Prevalence of Emojis in Litigation
By Andrew J. Ennis and Catherine A. Green – April 30, 2020
Be aware of the potential complications emojis pose in interpreting litigation documents.

Are Manufactured Homes Real or Personal Property Under Chapter 13 Bankruptcies? It Depends on Where You Live
By Siobhan Briley – April 27, 2020
State law determines whether an individual debtor may modify the rights of certain secured creditors in a manufactured home under a Chapter 13 bankruptcy.

Beware a Stipulated Dismissal That Is Silent on Attorney Fees!
By Bradford S. Babbitt – April 20, 2020
Is a stipulated dismissal a judgment for preserving the right to file for attorney fees under FRCP 54(d)(2)?

Five Things to Do If You Absolutely Want to Lose a Court Hearings
By Mark A. Romance – April 8, 2020
Young lawyers should heed these cardinal rules of conduct when handling court hearings.

How to Maximize the Effectiveness of Foreign Language Depositions
By Alexander D. Widell – March 26, 2020
An effective foreign language deposition requires early recognition of the need for a translator, using a foreign language deposition protocol, and choosing the right translator.

Tips for Using Consent Directives as a Discovery Device for Offshore Bank Records
By Eric (Rick) S. Rein – March 26, 2020
Consent directives enable civil and bankruptcy litigants to request the release of any records, including confidential banking records.

Pretrial Discovery Strategies: Defending Against a Deponent’s Errata Sheet Before, During, and After a Deposition
By James D. Abrams and Devin M. Spencer – February 7, 2020
It pays dividends to advise parties about what to expect and what not to expect during this sometimes arduous but beneficial process.

A Quick Guide to Social Media and Litigation
By Andrew J. Ennis and Catherine A. Green – January 17, 2020
Practitioners should be aware of the potential complications these platforms pose before and during trial.

Expanding Nonlawyer Practice of Law: Increasing Access to Justice or Endangering the Public?
By Michael S. LeBoff – January 7, 2020, originally published by the Professional Liability Committee
An overview of recent proposals to expand the nonlawyer practice of law and whether these changes will achieve the goal of increasing access to justice.


Electronic Signatures: Not So Fast
By Andrew J. Ennis and Catherine A. Green – December 17, 2019
Practitioners should be aware of the applicable statutes and downsides to using this technology to sign documents and agreements.

Five Tips for Representing a Non-Party Served with a Document Subpoena: Welcome to the Party?
By Mark A. Romance – November 29, 2019
Federal rules concerning subpoenas to non-parties can be tricky. Do you know the rules?

Where the Only Potentially Covered Claim Is Dismissed, Can the Insurer Withdraw the Defense?
By Todd Smith – October 24, 2019
Wisconsin appellate court finds that dismissal did not end potential for coverage or the duty to defend.

Five Tips for an Effective Mediation Statement
By Mark A. Romance – September 4, 2019
A carefully drafted mediation statement can help a mediator plan strategy for a successful settlement.

Tips for Advising a Commercial Landlord: Is it Worthwhile to Pursue a Defaulting Tenant for Unpaid Rent?
By Jared M. Katz – July 29, 2019
Six questions to ask before filing suit for default on a commercial lease.

How to Get the Most for Your Client in a Commercial Arbitration
By Kelly Turner and Conna Weiner – July 29, 2019
Checklist of items to help you obtain successful results in commercial arbitration.

Beware of These Seven Common Attorney Malpractice Traps
By Michael S. LeBoff – June 20, 2019
Basic considerations to help prevent claims.

When a Third Party Pays the Legal Fees
By Paula M. Bagger – May 21, 2019
Attention to these issues at the outset will help you avoid ethical issues and get paid.

The ABC’s of Legal Writing for Litigators of All Experience Levels
By Jared M. Katz – May 7, 2019
How to craft an artful legal brief for the court to read.

What Practitioners Should Know About Navigating the Prosecutor’s “Trial Tax”
By Paige A. Nutini – April 24, 2019
How to advise your white-collar clients on the risks associated with rejecting a plea deal.

Disclosing Mistakes: Understanding Model Rule 1.4 and Formal Opinion 481
By Michael S. LeBoff – April 10, 2019
It is essential to know “what” and “when” you must disclose mistakes to clients.

Tag, You’re It! Bay State Court Finds Personal Jurisdiction Over Non-Residents Served in the State
By Sheridan L. King – February 19, 2019
The role of transient jurisdiction in Massachusetts courts has now been expressly confirmed.

Restrictive Covenants in Employment and Related Contracts: Key Considerations You Should Know
By Stephen L. Brodsky – February 8, 2019
Basic knowledge of these provisions is essential to today’s litigation practice.

When Does a Mistake Become Legal Malpractice?
By Michael S. LeBoff – February 8, 2019
Three basic questions to consider in determining if an attorney’s mistake justifies a lawsuit.

Kentucky Supreme Court Limits Enforceability of Arbitration Agreements in Employment Contracts
By Simon Svirnovskiy – February 8, 2019
Court upholds Kentucky statute barring employers from conditioning employment on an agreement to arbitrate.


What Is a Sometimes Overlooked Resource on Federal Court Rules?
By Andrew M. Toft – December 8, 2018
The Judicial Conference website provides a wealth of useful information for practitioners on Federal Court Procedural Rules.

Call Me Maybe?—Preserving the Ability to Talk with a Client During a Civil Trial
By Travis S. Hunter – November 30, 2018
Regardless of general prohibitions, constitutional protections may allow an attorney to confer with a client during lengthy civil trial recesses.

Spoliation of Evidence: The Surest Road to Sanctions
By Matthew C. Plant – November 20, 2018
Simple steps to avoid a claim of spoliation.

Extraterritorial Application of U.S. Securities Laws: Recent Case Law
By Stuart Riback – September 30, 2018
Second Circuit finds meetings and phone calls in New York sufficient as “domestic transaction” in securities of Bahamian company.

The Third Circuit Gives the Green Light on Snap Removals
By Michael T. Hensley and Ann Marie Effingham – September 17, 2018
Forum citizen defendant can remove diverse action prior to service.

Canadian Jurisdiction over Cross-Border Securities Claims
By Byron Shaw – August 1, 2018
Can an issuer be sued in Canada if its securities don’t trade on a Canadian exchange? if so, when?

Carpenter v. United States: Cell Phone Location Data Requires Warrant
By Eileen Rumfelt – July 17, 2018
U.S. Supreme Court ruling is a win for privacy…or is it?

How to Avoid Attorney-Client Privilege Problems in Joint Representations
By Bradford S. Babbitt – July 11, 2018
What best practices can a lawyer use to avoid privilege problems when representing multiple clients in an engagement?

2018 Health Care Compliance Trends for White Collar Practitioners
By Richard K. Rifenbark and Melissa S. Ho – July 10, 2018
Five areas for consideration and focus.

Is It Privileged? A Young Lawyer’s Guide to Preparing a Privilege Log in Commercial Litigation
By Travis S. Hunter and Sara M. Metzler – June 29, 2018
Privilege determinations are difficult—particularly in complex business disputes. These tips will help you have a privilege log that withstands the toughest scrutiny.

Getting the Arbitration that You Want: Appeals? Really?
By Conna A. Weiner – June 8, 2018
Tips for post-arbitration review.

Delaware Court Holds Privilege May Be Waived for Communications Put “At-Issue” in Insurance Coverage Dispute
By Travis S. Hunter – May 31, 2018
If privileged documents are placed “at-issue” in litigation, they may be subject to disclosure.

Delaware Court Casts Doubt on the Enforceability of Liquidated Damages Provision in Technology Services Agreement
By Travis S. Hunter – April 25, 2018
Even provisions agreed to by sophisticated commercial parties may be invalid if they would provide a windfall to the non-breaching party.

Challenges in Discovering Perpetrators of International Cryptocurrency Frauds
By Eric S. Rein – April 23, 2018
Equitable remedies may be used for discovery and relief.

Facebook’s Data Privacy Practices Under FTC Investigation as a Result of Cambridge Analytica Controversy
By Kevin L. Coy and Bradford J. Kelley – April 2, 2018
Important lessons for businesses on privacy.

Delaware Chancery Court Rejects Minority Members’ Use of Implied Covenant to Seek Higher Transaction Price in Sale of LLC
By Travis S. Hunter – March 29, 2018
The implied covenant of good faith and fair dealing cannot be used to rewrite contractual agreements to appease unhappy parties.

The Heightened Standard of Ascertainability in Class Actions
By Andrew J. Ennis and Catherine A. Zollicker – March 13, 2018
Strategic implications of filing class action suits in the Third Circuit: Will the Supreme Court clarify the current split on the level of ascertainability required for class certification?

PayPal Pays the Piper with FTC Settlement Over Venmo’s Disclosure, Privacy, and Security Practices
By Edward A. Marshall and Bradford Kelley – March 9, 2018
Important lessons for businesses on privacy, security, and functionality.

How the Judiciary Is Helping Younger Lawyers Close the Experience Gap
By Paula M. Bagger – February 27, 2018
Litigators should be mindful of the trend to create courtroom opportunities for less experienced attorneys.

Delaware Court Highlights Interplay Between Anti-Reliance Clauses and Fraud Carve-Outs in Merger Agreements
By Travis S. Hunter – February 15, 2018
When is an anti-reliance provision in a merger agreement an unreliable shield against fraud claims?

10 Tips for Young Lawyers Going to Trial
By Mark A. Romance – February 5, 2018
Learn a few successful trial strategies not found in textbooks.

Wisconsin Supreme Court Holds an Employee Non-Solicitation Provision to Be a Restraint of Trade
By Erin (Maggie) M. Cook, Maria L. Kreiter, Margaret R. Kurlinski, and Rebeca M. Lopez – January 30, 2018
The Lanning decision means employers should now evaluate their employee non-solicitation restrictions.

Working with Academic Experts
By Agustina Levy – January 24, 2018
Ensuring the successful engagement of an academic expert and best practices for testimony preparation.

10 Writing Tips for Young Lawyers
By Charles W. Stotter – January 23, 2018
How to use writing as an effective marketing tool.


Tips on Drafting Severability Provisions in Settlement Agreements
By Bradford S. Babbitt – December 27, 2017
Avoid severability of terms that defeat the purpose of settlement.

Joint and Several Liability on Payment Processor for Substantially Assisting Deceptive Telemarketer Opinion Upheld
By Edward A. Marshall and Morgan E. M. Harrison – December 20, 2017
Opinion underscores the need for rigorous underwriting and risk-monitoring to detect and prevent consumer fraud by their merchants.

5 Billing Tips for Young Lawyers
By Michael S. LeBoff – October 27, 2017
Making the most of your time.

Shop until the International Shoe Drops: SCOTUS Restricts Forum Shopping Against an Out-Of-State Employer
By Kathryn Dietrich Perreault – May 31, 2017
Out-of-state corporation must still have “continuous and systematic” contacts with forum state to be “at home” and subject to general personal jurisdiction.

Reach of Retaliation Claims Expanded under Dodd-Frank
By Michael S. LeBoff – May 8, 2017
Retaliation for an internal complaint could give rise to a federal whistleblower claim.

How to Kill a Rule 68 Offer Once and for All: Just Say "No"
By Stuart Riback – April 9, 2017
It really doesn't matter how favorable a defendant's offer might be; it counts for nothing if the plaintiff simply turns it down.

Tips for Maximizing the Benefits of Arbitration
By Clifton L. Brinson – March 27, 2017
Learn how this process has a few advantages over litigation, if consciously pursued.

Checklist for Motions to Transfer Pursuant to a Forum Selection Clause
By James H. Bowhay – March 17, 2017
Key procedural tips to keep in mind.

Anticipating Crisis: Preventing Information Leaks
By Wojciech Wandzel and Maciej Truszkiewicz – March 16, 2017
Implementing training and use of consultants and proper software is critical to protecting lawyers from cyber-attacks.

Preparing Your Damages Expert for Trial
By Brent Bersin – March 10, 2017
Damages experts can be the key to winning a case.

Substantial Activity through Correspondent Bank Subjects Foreign Party to Jurisdiction
By Eric (Rick) S. Rein – February 2, 2017
Use of correspondent banks can subject foreign banks to personal jurisdiction in New York.

Remembrance of Rules Past: Rule 44.1 at Motion to Dismiss Stage
By Jorge A. Mestre – January 11, 2017
Retaining foreign law experts is now required at the outset of cases.


Misleading Store Window Advertisement Could Not Be Cured at Point of Sale
By Michael S. LeBoff – December 30, 2016
Reliance on in-store ad potentially expands liability for false advertising under California’s Unfair Competition Law.

U.S. Supreme Court to Decide Scope of Right to Sue under Federal Fair Housing Act
By Christopher M. Wildenhain – October 26, 2016
What is the proper test for standing under the FHA?

Trial Preparation: 3 Tips for Starting with the End in Mind
By Mark Romance – September 21, 2016
Early planning is key to trial readiness.

Diversity Matters: Confronting Implicit Bias with Jury Diversity
By Nacente S. Seabury – August 28, 2016
Suggested methods to increase participation of diverse citizens.

New York Declines to Extend Common Interest Doctrine Beyond Pending or Anticipated Litigation
By Stuart M. Riback – June 21, 2016
The doctrine does not apply to communications between participants in corporate transactions.

Voluntary Payment Doctrine: A Useful Affirmative Defense or Instrument of Evil?
By James D. Abrams and Erica L. Cook – June 20, 2016
Does public policy motivated by consumer protection necessarily call for the elimination of the VPD, despite its useful applications?

Homestead Exemptions and Subdivisions
By Santiago Posas – May 26, 2016
Actual use remains paramount in determining extent of homestead exemption.

Precision in Drafting Settlement Agreements is Key to Avoiding Later Challenges
By Marc J. Zucker – May 26, 2016

How to Avoid Sanctions and Suits for Filing Frivolous Trade Secrets Claims
By Candace R. Duff – March 31, 2016

Self-Sabotaging: How Implicit Bias May Be Contributing to Your "Can't Find Any Women or Diverse Associates" Hiring Problem
By Candace R. Duff – March 31, 2016


Testing the Reliability of an Expert's Predictive Model
By Jason T. Wright and Richard M. Ruffing – February 18, 2016

Advice to Young Litigators: The Buck Stops Here
By Selena E. Molina – February 16, 2016

Campaign Ethics: A Reason to Forego Judicial Elections?
By James D. Abrams and Erica L. Cook – January 18, 2016

Forum-Selection Bylaws and Forum Non Conveniens
By Allen L. Lanstra – January 8, 2016


A Tightening Chokehold: The FTC and CFPB Continue to Take Aim at the Payments Industry
By Edward A. Marshall and Theresa Y. Kananen – December 28, 2015

Amending Electronic Discovery under the New Federal Rules of Civil Procedure
By Brisa Izaguirre Wolfe and Amy D. Fitts – December 21, 2015

Recent Federal Court Ruling on Admissibility of Online Evidence
By Madison Fischer – November 30, 2015

North Carolina Federal Court Holds Clickwrap Terms Defeat UDTP and Fraud Claims
By Gary Beaver – November 23, 2015

Eleventh Circuit Finds Users of Free Apps Not Protected under Video Privacy Protection Act
By Mark Romance – October 30, 2015

Court Rules that the "Happy Birthday" Song Is Not Protected by Copyright
By Antonieta Pimienta – September 30, 2015

Rethinking Commonality: Class Certification for Uber Drivers
By Max Hirsch – September 30, 2015

Contractual Forum Selection Clause Enforced Against Non-party to Agreement
By Stuart M. Riback – August 28, 2015

"Collusion" Defense Fails under Absolute and Unconditional Guaranty
By John P. McCahey – August 14, 2015

Lender's Ability to Foreclose Survives Borrower's Bankruptcy Discharge
By Charles W. Stotter – July 20, 2015

Texas Supreme Court Addresses Standard for Expert Opinion on Damages
By Neil Steinkamp and Robert Levine – May 29, 2015

Sole Proprietor's Invocation of Fifth Amendment Privilege Rejected in Response to Grand Jury Subpoena
By Charles W. Stotter – May 27, 2015

NY Federal Court Finds No Attorney-Client Privilege for Defunct Corporate Entities
By Charles W. Stotter – April 30, 2015

Fourth Circuit Revives Securities Fraud Claims Based on Pleading of Scienter
By Charles W. Stotter – April 30, 2015

Seventh Circuit Determines when Goods Are "Received" in Commercial Equipment Leases
By Ali Razzaghi – March 30, 2015

Pennsylvania Court Limits Attorney-Client Privilege for Defunct Business Entities
By Marie-Theres DiFillippo – March 30, 2015

Qualified Privilege Applies to Pre-Litigation Communication
By John P. McCahey – February 26, 2015

Improving Patient Care Does Not Justify a Merger Under the Antitrust Laws, Says the Ninth Circuit
By Mitchell D. Raup, Herbert F. Allen, and Gregory M. Bentz – February 26, 2015

Hart-Scott Rodino Antitrust Reporting Threshold Increased to $76.3 Million
By Matthew C. Hans – February 25, 2015

New York Trial Court Rules in City Trading Fund v. Nye
By Clifton L. Brinson – January 29, 2015

Daubert Challenges to Intellectual Property Damages Analyses
By Jennifer Vanderhart – January 26, 2015

Deference of U.S. Courts to Obtaining Discovery Held in a Foreign Country
By Eric (Rick) S. Rein – January 20, 2015