Commercial & Contract Litigation
Litigation is generally a last resort. But when it’s necessary, you need to know you have the talented, committed team required to win. At Kotz Sangster, our mission statement drives our approach:
The Kotz Sangster commercial litigation team is aggressive, effective and efficient. We learn the critical facts and applicable law early, and use that to advantage throughout the case. Client objectives are paramount, and communication is critical.
For nearly all of our clients, business success does not include frequent, time-consuming, expensive lawsuits. In today’s economy, however, protecting the ability to collect revenue and defending against spurious claims by others can be as important as producing a superior product or delivering sterling service. Attention to contracts and business relationships, and the enforcement of contractual rights and remedies, is more and more at the center of management’s responsibilities.
A company’s performance is not always carried out by reference to the terms of contract. Contract performance is more often viewed by those performing it as part of a relationship, a shared technical expertise, a team effort to achieve a common goal, and the process for earning revenue. Specifications (part of the contract to be sure) are more important than the fine print. This is the reason for the phrase “contracts are honored in the breach”—the T’s & C’s are frequently ignored until late delivery, unreasonable change requests, or other non-performance occurs. When the parties are satisfied, minor deviations of technical legal terms never come to the surface.
Commercial litigation essentially is the resolution of contract and business disputes through litigation, arbitration, facilitation, or negotiation, or combinations of those methods. Different industries will often see similarities in the terms and conditions appearing in industry-specific contracts. In some cases, the very terms that govern a business relationship are not obvious, they may be drawn from a combination of purchase orders, quotations, modifications, letters or other documents that businesses use every day, never expecting they may become critical pieces of the contractual matrix.
At Kotz Sangster, we have over 150 years of combined commercial litigation experience to accomplish successful, efficient litigation, risk management and dispute resolution. That experience has come most often in the most frequently litigated business issues, described below:
- Supply chain disputes, e.g., access and accommodation issues; forbearance; breach of express and implied warranties, “battle of the forms” and other similar disputes
- Shareholder and member disputes, corporate governance, director and officer liability, and derivative lawsuits (including minority oppression, breach of fiduciary duty, dissolution, etc.)
- Trade secrets/ unfair competition/ confidentiality agreements/ business defamation
- Securities litigation, arbitration and enforcement
- Class action defense
- Insurance coverage disputes, defense of insured and subrogation
- Appellate law
- Administrative law
- Real Estate disputes, including foreclosures, forfeitures, zoning and land division disputes
- School law including tenure disputes
- Environmental law
- Creditors rights, including protection of or foreclosure against collateral, defense of preference claims, pursuit or defense of fraudulent transfer claims, etc.
- Commercial contract disputes; collections
Most of these listed problems can arise in any business or industry. Our practice has specialists in automotive and other manufacturing, construction, securities, banking, health care, school, and real estate, as well as non-profit organizations, and many others.
Our approach to litigation emphasizes client communication and participation the litigation management and decision making. We strive to manage the process in a predictable manner, and to deliver top quality service while remaining mindful of cost benefit concerns.
The following are examples of the results achieved on behalf of our clients in commercial litigation matters:
- One trial arose out of the alleged default under an Indy 500 racing team sponsorship agreement, in which the plaintiff’s claim for $2.3 million was defeated by a no cause of action jury verdict.
- An Italian auto parts supplier was involved in a letter of credit dispute and recovered over $400,000 from its customer. The dispute involved a multi-year contract for the sale of a minimum quantity of goods per month. The customer stopped purchasing the goods, and the client declared breach and made demand on the letter of credit. The customer obtained injunctive relief in state court; Kotz Sangster removed the case to federal court, which lifted the injunction to allow collection on the letter of credit.
- We defended a Tier One client against another large Tier One auto supplier regarding alleged cycle time and quality problems with a piercing machine. The client's exposure to consequential damages was enormous. Our firm filed a counterclaim and third party claim against the machine designer, and ultimately settled the case on very favorable terms to our client, with a significant contribution from the designer.
- We performed the analysis, pre-claim negotiation and resolution of a dispute between two large Tier One suppliers regarding the installation and operation of two machining and assembly lines. These two lines, installed in two different plants, sold for approximately $30 million. The parties disputed the contract requirements, including cycle time. The case was successfully resolved without litigation by payment of over $1 million in additional funds to our client.
- We litigated in a complex international commercial dispute regarding the purchase of steel used in failed overhead crane rails. The disputes over the reasons for the failure of the steel required the use of several expert witnesses. Complex economic loss doctrine issues were involved, and ultimately the case settled on the eve of trial for nearly 100% of the amount of the client’s claim.
- Kotz Sangster represented a west coast asset-based lender in a work out and UCC article 9 foreclosure sale of the assets of a local stamping plant, defended against claims of unsecured creditors and the landlord to the assets secured by the bank’s loan, and ultimately conducted a foreclosure and sale to a new buyer financed by the client bank.
- We defeated at trial a Tier One supplier that sued our software manufacturer client over the suitability of particular software for a certain quality control machine. We prevailed by establishing that the problems with performance arose from the machine itself.
In addition to litigation, we often are called on to draft purchase orders, quotations, invoices and acknowledgements for clients to use in their daily business operations.
