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Fighting Encroachment Claims with Clear Contract Language
Two relatively recent court decisions addressing the common franchise issue of encroachment re-confirm the importance of carefully drafting each provision in a franchise agreement and shed some additional light on how courts will view and address encroachment claims going forward. In both cases, the court dismissed a franchisee's claim that a franchisor had breached the franchise agreement by encroaching on an alleged protected territory. Importantly, for the franchisor, in both cases the encroachment claims were dismissed very early in the litigation based on the franchisor's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court's focus in each decision was the specific and unambiguous language of the relevant territory provision, as well as other provisions in the franchise agreement.
In addition to providing legal guidance regarding encroachment claims, these decisions re-emphasize how important it is that franchisors and/or their counsel take the time to carefully and thoroughly read, draft, and revise (if necessary) the language in their franchise agreements to fully protect their rights and ensure that their intentions in entering into the franchise agreement are enforced. By drafting and maintaining precise, unambiguous, and complete language in their franchise agreements, the franchisor in each case was not only able to escape liability on an asserted claim, thereby avoiding a potential large monetary judgment, it was also able to avoid spending a significant amount of money on protracted litigation attempting to interpret and apply ambiguous language.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.