Edited by Honorable Edward T. Wahl
The second edition of the Business Disputes: Claims and Remedies Deskbook (formerly the Business Torts Deskbook) is an essential resource for both business attorneys and business litigators. The Deskbook covers all aspects of business disputes, including four brand-new chapters! The new chapters cover all aspects of damages in business litigation, including limitations on damages, recovery of attorney’s fees, and how to calculate and prove damages. Now with 20 chapters, and edited by the Honorable Edward T. Wahl to provide an accurate and balanced approach, this Deskbook provides business law practitioners with an in-depth look at a comprehensive range of business law issues and will provide you with the orientation, the analysis and the authorities you need to cite. The Deskbook covers nearly every practice issue a business law practitioner will encounter, including fraud and negligent misrepresentation, conversion, trade secrets, noncompetes, unfair trade practices, false statements in a business context, tortious interference, fiduciary duty, RICO, franchise law, credit and collection, privacy law, insurance coverage, class actions, damages, and much more!
2019 REVISION
The 2019 Revision to the Business Disputes: Claims and Remedies Deskbook includes updates to every chapter, including Ch. 5, Noncompetition Agreements: The “Reasonable” Restraint of Trade; Ch. 7, False Statements In A Business Context; Ch. 9, Fiduciary Duty; Ch. 12, Credit and Collection; Ch. 15, Class Actions; and Ch. 20, Calculating and Proving Damages. There is a brand NEW chapter added, Ch. 18, Duty to Mitigate. The 2019 Revision also includes a NEW section in Ch. 4, Trade Secrets, on reasonable royalty as a measure of damages under Minnesota Statutes section 325C.03(a) and current Eighth Circuit case law, NEW sections in Ch. 6, Unfair Trade Practices on the elements of a claim under the Minnesota Uniform Deceptive Trade Practices Act, elements of a claim under the Minnesota False Statement in Advertising Act, and defenses to a claim under the MFSAA, as well as a NEW section in Ch. 16, Damages in Business Tort Actions, discussing damages in cases of misappropriation of trade secrets, including actual loss and unjust enrichment, royalties, exemplary damages, attorney’s fees, injunctive relief, civil seizure, and examines illustrative cases on this topic. Additionally, the Revision features over 85 new cases decided in both state and federal courts.
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CHAPTER 1
Common Law Fraudulent Misrepresentation and Negligent Misrepresentation
Introduction; Elements of Fraudulent Misrepresentation; Falsity; Representation By Affirmative Misstatement or By Omission; Past or Existing Facts Susceptible of Knowledge; Direct Contact Not Required; Materiality; Fraudulent Intent; Actual Reliance; Reasonable Reliance; Damages and Remedies; Negligent Misrepresentation; Pleading Requirements and Standard of Proof; Statute of Limitations
– Michael M. Krauss
CHAPTER 2
Statutory Fraud Laws
Introduction; Scope of Statutory Fraud Laws; Establishing Liability for Violation of Prohibited Conduct Under Statutory Fraud Laws; Private Rights of Action
– Aaron D. Van Oort
CHAPTER 3
Conversion and Unjust Enrichment
Introduction; Elements of Conversion; Nature of the Property at Issue; Defenses to Conversion; Remedies for Conversion; Statute of Limitations; Conversion of Negotiable Instruments; Unjust Enrichment; Standard of Proof
– Matthew C. Robinson
CHAPTER 4
Trade Secrets
Introduction; Elements of a Misappropriation Claim and How to Prove Them; Available Defenses; Damages, Injunctions, and Other Relief; Investigating, Pleading, Discovering, and Presenting Trade Secret Claims
– Peter M. Lancaster & Forrest K. Tahdooahnippah
CHAPTER 5
Noncompetition Agreements: The “Reasonable” Restraint of Trade
The Environment for Noncompetes; The Realm of the Noncompete Agreement; Protectable Interests; The Rule of Reasonableness; Consideration for Noncompete Agreements; Survival of Restrictive Covenants Upon Termination of Agreement; Tortious Interference with Noncompete Agreements; The Relationship Between Noncompete Agreements, Trade Secret Protections, and the Doctrine of Inevitable Disclosure; Governing Law; Jurisdiction and Venue; Additional Defenses; Equitable Relief; Damages and Attorney’s Fees
– William Z. Pentelovitch, Sarah A. Horstmann & Melissa Muro Lamere
CHAPTER 6
Unfair Trade Practices
Introduction; The Lanham Act Section 43(a)(1)(B); Standing Under the Lanham Act; Elements of a Claim Under Section 43(a)(1)(B); Defenses to False Advertising Claims Under the Lanham Act; Remedies for False Advertising Under the Lanham Act; Minnesota Uniform Deceptive Trade Practices Act; Standing Under MDTPA; Elements of a Claims Under the MDTPA; Remedies For a Claim Under the MDTPA; Minnesota’s False Statement in Advertising Act; Standing under the MFSAA; Elements of a Claim Under the MFSAA; Defenses to a Claim under the MFSAA; Remedies for a Claim Under the MFSAA; Common Law Claim for False Advertising
– Leora Maccabee & Mary Heath
CHAPTER 7
False Statements In a Business Context
Introduction; Business Defamation; Product Disparagement; False Advertising; Conclusion
– James G. Bullard, Daniel Oberdorfer & Nicole Faulkner
CHAPTER 8
Tortious Interference
Overview; Elements; Defenses; Parties
– Jeffrey J. Bouslog & Patrick M. Fenlon
CHAPTER 9
Fiduciary Duty
Introduction; Defining Fiduciary Duty; Other Fiduciary Relationships: Close Corporations, Partnerships, LLCs, and Trustees; Breaching Fiduciary Duties; Defenses; Damages and Remedies
– Honorable Edward T. Wahl
CHAPTER 10
RICO
Introduction; What Constitutes a RICO Violation?; Civil Remedies under 18 U.S.C. § 1964(c); Conspiracies to Violate RICO – 18 U.S.C. § 1962(d); Claims for Investment Injuries – 18 U.S.C. § 1962(a); RICO’s Statute of Limitations; Conclusion
– Jeffrey E. Grell
CHAPTER 11
Franchise Law
Introduction; Minnesota Franchise Laws Generally; Legal Definition of a Franchise; Territorial Application; Registration and Disclosure Laws; Relationship Laws; Civil Remedies For Violations of the Act; Civil and Criminal Penalties for Violations; Limitations of Actions
– Kerry L. Bundy & Nick R. Rotchadl
CHAPTER 12
Credit and Collection
Introduction; The Fair Debt Collection Practices Act of 1977; The Fair Credit Reporting Act of 1971; The Truth in Lending Act of 1968; Equal Credit Opportunity Act of 1974; Minnesota Usary Law
– Joseph M. Windler
CHAPTER 13
Privacy
Introduction; Development of Privacy Tort; Invasion of Privacy by Appropriation; Intrusion Upon Seclusion; Invasion of Privacy by Public Disclosure; Invasion of Privacy by False Light; State and Federal Statutes; Conclusion
– Phyllis Karasov
CHAPTER 14
Insurance Coverage
Introduction; Why Liability Insurance Coverage Matters; What to Seek From Business Client and/or Business Client’s Insurer; Basic Types of Liability Insurance for Business Torts; Fundamentals of Policy Construction; When Coverage is In Doubt: The Uses and Potential Misuses of Miller-Shugart Settlements; Conclusion
– Honorable Jerome B. Abrams
CHAPTER 15
Class Actions
Introduction; Requirements in Class Actions; Issues Related to Initial Stage of Class Actions; Motion for Class Certification; Appeals From Class Certification Orders; Class Notice; Settlement; Trials; Attorney’s Fee Awards
– Todd A. Notebloom, David M. Cialkowski, J. Gordon Rudd, Jr., Lariss J. Maldonado & Sharon R. Markowitz
CHAPTER 16
Damages in Business Tort Actions
Introduction; Economic Loss Doctrine; Lost Profits; Mitigation; Nominal Damages; Punitive Damages; Attorney’s Fees; Common Law Fraud; Minnesota Consumer Fraud Laws; The Lanham Act, 15 U.S.C. §§ 1111, et seq.; Conversion; Trespass; Defamation; Privacy Claims; Misappropriation of Trade Secrets; Fiduciary Duty: Duty of Loyalty and Duty of Confidentiality; Tortious Interference with Contractual Relations and Tortious Interference with Prospective Economic Advantage
– Wade S. Davis, Sarah J. Hewitt & Douglas R. Peterson
CHAPTER 17
Consequential, Special, and Incidental Damages
Introduction; What are Consequential, Special, and Incidental Damages?; General Requirements for Enforceability of Liability Limitations; Specific Enforceability Concerns; What Does the Uniform Commercial Code Teach?; Tips for Transactional Attorneys; Ambiguity Should be Eliminated; Conclusion
– James G. Bullard & Bryant D. Tchida
CHAPTER 18
Duty to Mitigate
Introduction; Nature and Purpose of the Obligation; Pleading Requirements and Standard of Proof; Applications
– Aaron G. Thomas & Erin S. Conlin
CHAPTER 19
Recovery of Attorney’s Fees
Introduction; When Attorney’s Fees Are Recoverable; Determining the Amount of Attorney’s Fees; Requesting Attorney’s Fees
– Honorable Denise D. Reilly, Jennifer Hobbs & Alexandria Mountain
CHAPTER 20
Calculating and Proving Damages in Commercial Litigation: Methodologies and Challenges
Introduction; Lost Profits; Disgorgement/Unjust Enrichment; Out-Of-Pocket Losses; Diminution in Value; Loss of Goodwill; Trade Secret Misappropriation; Discounting of Future Damages to Present Value
– Deborah A. Ellingboe & Frances M. McCloskey
Table of Authorities
Subject Index
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