LexisNexis Practice Guide: New Jersey Commercial Litigation

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The LexisNexis Practice Guide New Jersey Commercial Litigation is a practical, task-oriented guidebook to the various topics in commercial litigation. It clearly explains how to analyze, resolve, and/or litigate the issues that can arise at every stage of a commercial dispute, from the basic corporate structures to complex questions of law, evidentiary matters, procedure, and strategy. Comprehensive coverage includes Liability of Corporate Directors and Officers; Restrictive Covenants; Business Fraud, Consumer Fraud, and Fraudulent Transfers; Unfair Competition; and Trade Secrets.

LexisNexis Practice Guide New Jersey Commercial Litigation includes over two dozen task-oriented checklists, almost two hundred strategic points, warnings, and timing tips to prevent practice missteps, and targeted cross-references to specific state and federal legislation and sources detailing the features of topics such as corporate governance, franchise litigation and lender liability.

Table of Contents

Chapter 1 CORPORATE GOVERNANCE; LIABILITY OF DIRECTORS AND OFFICERS 

PART I: STRATEGY
1.01 Scope
1.02 Objective and Strategy

PART II: ESTABLISHING DUTIES OF DIRECTORS AND OFFICERS
1.03 CHECKLIST: Establishing Duties of Directors and Officers
1.04 Evaluating Choice of Law
1.05 Fiduciary Duty to Corporation and Shareholders

PART III: UNDERSTANDING LIABILITY OF DIRECTORS AND OFFICERS
1.06 CHECKLIST: Understanding Liability of Directors and Officers
1.07 Understanding Business Judgment Rule
1.08 Assigning Joint and Several Liability in Certain Cases
1.09 Seeking Indemnification of Corporate Agents

PART IV: LITIGATING SHAREHOLDER DERIVATIVE ACTIONS
1.10 CHECKLIST: Litigating Shareholder Derivative Actions
1.11 Understanding Nature of Derivative Action
1.12 Adhering to Pleading And Demand Requirements
1.13 Identifying Special Considerations in Filing Shareholder Derivative Actions

PART V: LITIGATING RECEIVERSHIP ACTIONS AND INVOLUNTARY DISSOLUTION
1.14 CHECKLIST: Litigating Receivership Actions and Involuntary Dissolution
1.15 Pursuing Receivership Actions
1.16 Bringing Action for Involuntary Dissolution

Chapter 2 OPPRESSED MINORITY SHAREHOLDER ACTIONS
PART I: STRATEGY

2.01 Scope
2.02 Objective and Strategy

PART II: EVALUATING POTENTIAL OPPRESSED MINORITY SHAREHOLDER CLAIMS
2.03 CHECKLIST: Evaluating Potential Minority Shareholder Claims
2.04 Determining Whether Oppressed Minority Shareholder Claim Is Viable
2.05 Asserting Additional or Alternative Theories of Liability Against Offending Parties

PART III: OBTAINING INFORMATION NECESSARY TO PROCEED WITH OPPRESSED MINORITY SHAREHOLDER CLAIM
2.06 CHECKLIST: Obtaining Information Necessary to Proceed with Oppressed Minority Shareholder Claim
2.07 Obtaining Most Information Possible Before Commencing Oppressed Minority Shareholder Action

PART IV: DETERMINING APPROPRIATE REMEDY TO PROTECT INTEREST OF OPPRESSED MINORITY SHAREHOLDER
2.08 CHECKLIST: Determining Appropriate Remedy to Protect Interest of Oppressed Minority Shareholder
2.09 Understanding Goals of Shareholder and Seeking Appropriate Remedy
2.10 Calculating Fair Value of Shareholder's Interest
2.11 Obtaining Preliminary Relief to Prevent Ongoing Harm to Corporation
2.12 Assessing Harm to Minority Shareholder's Interest in Corporation

PART V: DRAFTING PLEADINGS AND APPLICATIONS FOR PRELIMINARY RELIEF
2.13 CHECKLIST: Drafting Pleadings and Applications for Preliminary Relief
2.14 Including as Many Wrongful Acts and Varieties of Remedies as Can Be Reasonably Asserted in Complaint
2.15 Emphasizing Irreparable Harm and Seeking Targeted Remedies

PART VI: EVALUATING POTENTIAL DEFENSES TO CLAIMS OF MINORITY SHAREHOLDER OPPRESSION
2.16 CHECKLIST: Evaluating Potential Defenses to Claims of Minority Shareholder Oppression
<2.17 Overcoming Business Judgment Rule Presumption
2.18 Asserting Estoppel and Laches Defenses

PART VII: CONDUCTING EFFECTIVE DISCOVERY IN OPPRESSED SHAREHOLDER ACTION
2.19 CHECKLIST: Conducting Effective Discovery
2.20 Obtaining Effective Case Management Order
2.21 Using Discovery to Establish All Elements of Claim of Minority Shareholder Oppression
2.22 Serving Subpoenas Upon Third Parties
2.23 Consulting Experts on Issues of Valuation and Financial Mismanagement

PART VIII: PREPARING FOR TRIAL IN MINORITY SHAREHOLDER ACTIONS
2.24 CHECKLIST: Preparing for Trial in Minority Shareholder Actions
2.25 Ensuring Compliance with Pre-Trial Requirements of Chancery Judge
2.26 Arranging for Appropriate Fact and Expert Witnesses
2.27 Obtaining Attorney's Fees

Chapter 3 RESTRICTIVE COVENANTS
PART I: STRATEGY

3.01 Scope

3.02 Objective and Strategy

PART II: UNDERSTANDING RESTRICTIVE COVENANTS
3.03 CHECKLIST: Understanding Restrictive Covenants
3.04 Recognizing Contexts in Which Restrictive Covenants Are Common
3.05 Analyzing Enforceability of Restrictive Covenants

PART III: PREPARING TO LITIGATE ENFORCEABILITY OF RESTRICTIVE COVENANT
3.06 CHECKLIST: Preparing to Litigate Enforceability of Restrictive Covenant
3.07 Obtaining Injunctive Relief

PART IV: FILING ORDER TO SHOW CAUSE
3.08 CHECKLIST: Filing Order to Show Cause
3.09 Drafting Initial Pleadings in Support of Order to Show Cause
3.10 Preparing for Initial and Plenary Hearings
3.11 Considering Damages and Additional Legal Remedies
3.12 Making Motions in Aid of Litigants' Rights

Chapter 4 INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS OR PROSPECTIVE ECONOMIC ADVANTAGE
PART I: STRATEGY

4.01 Scope
4.02 Objective and Strategy

PART II: IDENTIFYING AND EVALUATING POTENTIAL CLAIMS
4.03 CHECKLIST: Identifying and Evaluating Potential Claims
4.04 Determining Whether a Potential Claim is Actionable
4.05 Assessing Additional or Alternate Theories of Liability
4.06 Addressing Public Policy Considerations

PART III: IDENTIFYING EMPLOYMENT AS PROTECTED ECONOMIC INTEREST
4.07 CHECKLIST: Identifying Employment as Protected Economic Interest
4.08 Examining Suit for Interference With Employment

PART IV: EVALUATING MALICE--CRUX OF INTENTIONAL INTERFERENCE CLAIM
4.09 CHECKLIST: Evaluating Malice Requirement--Crux of Intentional Interference Claim
4.10 Disrupting Economic Relationship: Interference by Party Removed from Economic Relationship
4.11 Assessing Whether Defendant's Conduct Was "Intentionally and Without Excuse"

PART V: EVALUATING DAMAGES IN INTENTIONAL INTERFERENCE ACTIONS
4.12 CHECKLIST: Evaluating Damages in Intentional Interference Actions
4.13 Assessing and Evaluating Damages

PART VI: LITIGATING INTENTIONAL INTERFERENCE ACTION
4.14 CHECKLIST: Litigating Intentional Interference Action
4.15 Including Potentially Liable Parties
4.16 Pleading Damages
4.17 Seeking Injunctive Relief
4.18 Seeking Discovery in Intentional Interference Actions
4.19 Preparing for Trial in Intentional Interference Actions

Chapter 5 PARTNERSHIP
PART I: STRATEGY

5.01 Scope
5.02 Objective and Strategy

PART II: DETERMINING TYPE OF PARTNERSHIP
5.03 CHECKLIST: Determining Type of Partnership
5.04 Examining Characteristics of General Partnership
5.05 Examining Characteristics of Limited Partnership
5.06 Examining Characteristics of Limited Liability Partnership

PART III: IDENTIFYING PARTIES TO ACTION INVOLVING PARTNERSHIP
5.07 CHECKLIST: Identifying Parties to Action Involving Partnership
5.08 Determining Who Should Be Named as Defendant in Action Against Partnership
5.09 Considering Effect of Dissociation of Partner on Partnership and Partner Liability
5.10 Considering Effect of Dissolution of Partnership on Partnership and Partner Liability

PART IV: EVALUATING ACTIONABLE CLAIMS
5.11 CHECKLIST: Evaluating Actionable Claims
5.12 Pursuing Claims by Partners Against Partnership
5.13 Pursuing Claims by Partnership Against Partners

Chapter 6 BUSINESS FRAUD; CONSUMER FRAUD; FRAUDULENT TRANSFERS
PART I: STRATEGY

6.01 Scope
6.02 Objective and Strategy

PART II: LITIGATING COMMON LAW BUSINESS FRAUD CASE
6.03 CHECKLIST: Litigating Common Law Business Fraud Case
6.04 Preparing Common Law Fraud Case
6.05 Defending Fraud Case
6.06 Trying Fraud Case

PART III: LITIGATING CONSUMER FRAUD CASE
6.07 CHECKLIST: Litigating Consumer Fraud Case
6.08 Utilizing Consumer Fraud Act
6.09 Defending Consumer Fraud Claims

PART IV: CONFRONTING FRAUDULENT TRANSFERS
6.10 CHECKLIST: Confronting Fraudulent Transfers
6.11 Defining Fraudulent Transfers
6.12 Avoiding Pitfalls in Litigating Fraudulent Transfers

Chapter 7 LENDER LIABILITY AND USURY
PART I: STRATEGY

7.01 Scope
7.02 Objective & Strategy

PART II: ASSESSING POTENTIAL LENDER LIABILITY CLAIM
7.03 CHECKLIST: Assessing Potential Lender Liability Claim
7.04 Examining Structure of Lending Transaction and Subsequent Conduct by Lender
7.05 Reviewing Statutes Providing Safe Harbors from Lender Liability
7.06 Examining Potential Lender Liability
7.07 Assessing Affirmative Claims and Defenses Involving Lender Liability

PART III: MEETING REQUIREMENTS FOR LITIGATING LENDER LIABILITY CLAIM
7.08 CHECKLIST: Meeting Requirements for Litigating Lender Liability Claim
7.09 Integrating Legal Theories of Lender Liability with Facts
7.10 Adhering to Statute of Limitations for Lender Liability Claims
7.11 Selecting Between State and Federal Forums for Lender Liability Claim
7.12 Drafting Effective Complaint Asserting Lender Liability
7.13 Drafting Effective Answer Contesting Lender Liability
7.14 Investigating Debtor's Mitigation of Damages
7.15 Analyzing Damages from Lender's Actions
7.16 Obtaining and Preparing Expert Testimony Concerning Damages from Lender's Actions
7.17 Crafting Effective Opening Statement in Lender Liability Action

PART IV: LITIGATING CIVIL USURY CLAIM
7.18 CHECKLIST: Litigating Civil Usury Claim
7.19 Examining Civil Usury in New Jersey
7.20 Understanding Permissible Interest Rates
7.21 Understanding Exemptions from New Jersey Usury Statute
7.22 Calculating and Differentiating Interest
7.23 Adhering to Statute of Limitations for Civil Usury Claim
7.24 Seeking Civil Penalties for Usury
7.25 Examining Other New Jersey Statutes Containing Usury Provisions
7.26 Reviewing Federal Preemptive Statutes Concerning Usury
7.27 Addressing Conflicts of Laws in Civil Usury Action
7.28 Litigating Civil Usury Claim

Chapter 8 FRANCHISE LITIGATION
PART I: STRATEGY

8.01 Scope
8.02 Objective and Strategy

PART II: IDENTIFYING BUSINESSES PROTECTED UNDER NEW JERSEY'S FRANCHISE PRACTICES ACT
8.03 CHECKLIST: Identifying Businesses Protected Under New Jersey's Franchise Practices Act
8.04 Determining Whether Business Constitutes Franchise Protected Under FPA
8.05 Determining Whether Business Constitutes Motor Vehicle Franchise

PART III: ADDRESSING PRELIMINARY ISSUES TO LITIGATING FRANCHISE CLAIMS
8.06 CHECKLIST: Addressing Preliminary Issues to Litigating Franchise Claims
8.07 Determining Forum for Bringing Claim
8.08 Analyzing Forum Selection Clauses in Franchise Contracts
8.09 Evaluating Arbitration Clauses in Franchise Contracts
8.10 Defending Claim on Ground of Franchisee's Failure to Comply with Franchise Agreements
8.11 Determining Which State's Law Applies

PART IV: ASSERTING CLAIMS REGARDING TERMINATION OR NONRENEWAL OF FRANCHISE
8.12 CHECKLIST: Asserting Claims Regarding Termination or Nonrenewal of Franchise
8.13 Assessing Whether Proper Notice Has Been Provided
8.14 Assessing Whether There Are Statutory Grounds for Termination, Cancellation or Nonrenewal of Franchise
8.15 Identifying Relief Available for Termination, Cancellation or Nonrenewal of Franchise

PART V: ASSERTING CLAIMS REGARDING TRANSFER, ASSIGNMENT OR SALE OF FRANCHISE
8.16 CHECKLIST: Asserting Claims Regarding Transfer, Assignment or Sale of Franchise
8.17 Assessing Whether Franchisee Properly Notified Franchisor of Intention to Transfer, Assign or Sell Franchise
8.18 Assessing Whether Franchisor's Rejection Was Proper
8.19 Identifying Relief Available for Improper Rejection of Transfer

PART VI: ASSERTING CLAIMS AND DEFENSES REGARDING OTHER PROHIBITED FRANCHISOR PRACTICES APPLICABLE TO ALL FRANCHISES
8.20 CHECKLIST: Asserting Claims and Defenses Regarding Other Prohibited Franchisor Practices Applicable to All Franchises
8.21 Identifying Other Prohibited Practices Applicable to All Franchisors

PART VII: ASSERTING CLAIMS AND DEFENSES REGARDING MOTOR VEHICLE FRANCHISES
8.22 CHECKLIST: Asserting Claims and Defenses Regarding Motor Vehicle Franchises
8.23 Examining Issues Involving Grant, Relocation, Reopening or Reactivation of Motor Vehicle Franchise
8.24 Examining Issues Involving Other Prohibited Motor Vehicle Franchisor Practices

PART VIII: ASSERTING MOTOR VEHICLE FRANCHISEE CLAIMS AGAINST FRANCHISOR FOR ISSUES INVOLVING THIRD PARTIES
8.25 CHECKLIST: Asserting Motor Vehicle Franchisee Claims Against Franchisor for Issues Involving Third Parties
8.26 Asserting Reimbursement and Indemnification Claims Against Motor Vehicle Franchisors
8.27 Seeking Reimbursement from Motor Vehicle Franchisors for Services Rendered in Satisfaction of Warranty

PART IX: IDENTIFYING GENERAL STATUTORY RELIEF AVAILABLE TO FRANCHISEES AND GENERAL STATUTORY DEFENSES AVAILABLE TO FRANCHISORSM
8.28 CHECKLIST: Identifying General Statutory Relief Available to Franchisees and General Statutory Defenses Available to Franchisors
8.29 Identifying Relief Available to Franchisee for Frachisor Violation of FPA
8.30 Identifying Franchisor's General Statutory Defenses
8.31 Pursuing Federal Remedies Under Automobile Dealers' Day in Court Act

PART X: ASSERTING CLAIMS INVOLVING TRANSFER, ASSIGNMENT OR SALE BY FRANCHISOR OF MOTOR FUEL RETAIL FRANCHISE
8.32 CHECKLIST: Asserting Claims Involving Transfer, Assignment or Sale by Franchisor of Motor Fuel Retail Franchise
8.33 Determining Whether Provisions Apply
8.34 Assessing Whether Franchisor Made Bona Fide Offer to Franchisee
8.35 Assessing Whether Successor Owner Is in Compliance with Statute

Chapter 9 UNFAIR COMPETITION
PART I: STRATEGY

9.01 Scope
9.02 Objective and Strategy

PART II: EXAMINING PRELIMINARY ISSUES REGARDING INFRINGEMENT OF TRADEMARKS, TRADE DRESS AND TRADE NAMES
9.03 CHECKLIST: Examining Preliminary Issues Regarding Infringement of Trademarks, Trade Dress and Trade Names
9.04 Defining Right at Issue
9.05 Identifying Applicable Statutes and Common Law

PART III: ASSESSING TRADEMARK AND TRADE DRESS INFRINGEMENT CLAIMS
9.06 CHECKLIST: Assessing Trademark and Trade Dress Infringement Claims
9.07 Identifying Elements of Trademark Infringement
9.08 Deciding Whether Mark Is Valid and Protectable
9.09 Determining Applicable Level of Protection
9.10 Establishing that Plaintiff Owns Mark
9.11 Establishing That Defendant's Usage Is Likely to Cause Confusion
9.12 Assessing Trade Dress Infringement
9.13 Assessing Secondary Liability

PART IV: IDENTIFYING APPLICABLE DEFENSES TO INFRINGEMENT CLAIMS
9.14 CHECKLIST: Identifying Applicable Defenses to Infringement Claims
9.15 Identifying Defenses to Infringement Claims

PART V: IDENTIFYING AVAILABLE RELIEF FOR TRADEMARK INFRINGEMENT
9.16 CHECKLIST: Identifying Available Relief for Trademark Infringement
9.17 Assessing Injunctive Relief for Infringement
9.18 Assessing Disgorgement of Profits
9.19 Assessing Damages
9.20 Identifying Remedies for Counterfeit Marks
9.21 Identifying Remedies for ybersquatting
9.22 Obtaining Destruction of Infringing Articles
9.23 Barring Importation
9.24 Obtaining Litigation Costs and Attorneys' Fees in "Exceptional Cases"

PART VI: ASSESSING TRADEMARK DISPUTES INVOLVING INTERNET
9.25 CHECKLIST: Assessing Trademark Disputes Involving the Internet
9.26 Assessing Infringing Uses in Internet Advertising
9.27 Assessing Violations of Anticybersquatting Consumer Protection Act

PART VII: ASSESSING ANTI-DILUTION CLAIMS
9.28 CHECKLIST: Assessing Anti-Dilution Claims
9.29 Assessing Anti-Dilution Claims

PART VIII: ASSERTING CLAIMS FOR FALSE ADVERTISING
9.30 CHECKLIST: Asserting Claims for False Advertising
9.31 Assessing False Advertising Under Lanham Act
9.32 Determining Whether Plaintiff Has Standing: Reasonable Interest Standard
9.33 Assessing False Advertising and Unfair Competition Under New Jersey Common Law
9.34 Identifying Relief Available for False Advertising

PART IX: ASSERTING DEFAMATION AND TRADE LIBEL CLAIMS
9.35 CHECKLIST: Asserting Defamation and Trade Libel Claims
9.36 Distinguishing Between Defamation and Trade Libel
9.37 Assessing Cause of Action for Defamation
9.38 Assessing Cause of Action for Trade Libel
9.39 Determining Whether Privilege Applies
9.40 Reviewing Applicable Statute of Limitations
9.41 Considering Injunctive Relief for Defamation or Trade Libel

PART X: ASSERTING CLAIMS FOR MISAPPROPRIATION OF CONFIDENTIAL BUSINESS INFORMATION
9.42 CHECKLIST: Asserting Claims for Misappropriation of Confidential Business Information
9.43 Deciding Whether Information Is Protected
9.44 Assessing Whether Protected Information Has Been Misappropriated
9.45 Evaluating Relief Available for Misappropriation of Confidential Business Information
9.46 Evaluating Potential Defenses to Claim of Misappropriation of Confidential Business Information
9.47 CHECKLIST: Asserting Claims for Violation of Right of Publicity
9.48 Establishing Violation of Right of Publicity
9.49 Balancing Right of Publicity Against First Amendment Interests

PART XI: ASSERTING CLAIMS FOR VIOLATION OF RIGHT OF PUBLICITY
9.47 CHECKLIST: Asserting Claims for Violation of Right of Publicity
9.48 Establishing Violation of Right of Publicity
9.49 Balancing Right of Publicity Against First Amendment Interests