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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.
Law Firms are Reducing Redundant Real Estate by Bringing Support Services Back to the Office
A trend analysis of the benefits and challenges of bringing back administrative, word processing and billing services to law offices.
Bit Parts
Summary Judgment Denied Defendant in Declaratory Action by Producer of To Kill a Mockingbird Broadway Play Seeking Amateur Theatrical Rights
Risks of “Baseball Arbitration” in Resolving Real Estate Disputes
“Baseball arbitration” refers to the process used in Major League Baseball in which if an eligible player's representative and the club ownership cannot reach a compensation agreement through negotiation, each party enters a final submission and during a formal hearing each side — player and management — presents its case and then the designated panel of arbitrators chooses one of the salary bids with no other result being allowed. This method has become increasingly popular even beyond the sport of baseball.
Disconnect Between In-House and Outside Counsel
'Disconnect Between In-House and Outside Counsel is a continuation of the discussion of client expectations and the disconnect that often occurs. And although the outside attorneys should be pursuing how inside-counsel actually think, inside counsel should make an effort to impart this information without waiting to be asked.