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Business Break-Ups – Important Tips to Prepare Before the Problem Arises

In Break-ups & Partnership Disputes, Dissolve a Partnership, Partnership Dispute by Don KochersbergerLeave a Comment

New business partners don’t typically think about anything going wrong down the road, however, business and personal disputes are often irreconcilable, and sometimes partners ultimately decide to break up the business. Ideally, businesses and business partners take the necessary steps to plan ahead for dissolution and alleviate much of the stress associated with typical business break-ups.

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Tort Law: Protect Your Business

In Business Tort by Don KochersbergerLeave a Comment

Sometimes protecting your business is not as simple as locking your doors at night and setting an alarm. It is not just your physical address that you need to protect—property can be intangible or intellectual. Attacks against those types of property by another business or by an employee can be very damaging to your business practices and reputation. Staying vigilant …

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Federal Courts Should Use State Law to Interpret a Contract’s Venue or Forum Selection Clause

In Contract Disputes, Contracts, Litigation & Lawsuits by Don KochersbergerLeave a Comment

Most circuits have not decided this issue. Those that have addressed it typically recognize that no reason exists to treat a venue selection clause differently from the remainder of a contract that will be interpreted using state law. See, e.g.,  Northwest Nat. Ins. Co. v. Donovan, 916 F.2d 372, 374 (7th Cir. 1994) (“Validity and interpretation are separate issues, and …

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Burden of Proof on a Motion to Dismiss for Improper Venue

In Litigation & Lawsuits by Don KochersbergerLeave a Comment

Defendants should have the burden of proof on a motion to dismiss for improper venue. A split of authority exists on this issue. 14D Charles Alan Wright, et al., Federal Practice and Procedure § 3826, at pp. 555-62 (3d ed. 2007).  In our jurisdiction, the federal courts, unfortunately, have not ruled on the issue. See Burns v. Events & Transportation …

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Twombly/Iqbal Stay of Litigation

In Litigation & Lawsuits by Don KochersbergerLeave a Comment

Under Twombly/Iqbal pleading standards, defendants who are named in a poorly drafted lawsuit should not have to bear the expense of defending frivolous claims before the court can evaluate the plaintiff’s claims. As the Supreme Court noted in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), a plaintiff who fails to adequately allege a viable complaint is not entitled to “unlock …

Twombly/Iqbal Dismissal of Litigation

In Litigation & Lawsuits by Don KochersbergerLeave a Comment

The Twombly/Iqbal pleading standard can be effective in resisting frivolous claims by plaintiffs. This pleading standard demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In applying these standards, a court considering a Rule 12(b)(6) motion to dismiss need not accept the …