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FAQS

What exactly is commercial litigation?

Commercial litigation can involve any aspect and type of dispute that can arise in a business context. A commercial dispute arises when one or more parties is a business entity such as a corporation or partnership. It is typically processed the same way as civil litigation. Essentially, commercial litigation is an umbrella term that will apply to business-related issues. The process will involve two parties and differs from civil litigation as it involves businesses rather than individuals and typically involves complex or specialized issues both factually and legally. Most often, commercial litigation will be filed in federal rather than state court.

In which situations can a commercial litigation lawyer help me?

Breach of contract
Breach of fiduciary duty
Partnership disputes
Fraud
Bad faith
Unfair competition
Insurance coverage disputes/denial of coverage
Real estate litigation
Securities litigation
Commercial oil and gas litigation
Theft of trade secrets
Trademark infringement
Patent infringement and patent disputes
Other business and commercial disputes

What is the difference between litigation, arbitration and mediation?

Arbitration and litigation in the court are two sides of the same thing. They are both litigation-type vehicles. Mediation on the other hand is trying to resolve matters and it’s not binding until the parties agree on something. The primary benefits of litigation are, during the court system, which allows you to get discovery, which means obtaining documents and testimony from the other side and finding out what they have and what information they have. There’s a much smaller amount allowed in arbitration if any. The negative part about litigation is the time and the costs. You go through litigation, and you find that it may be hours and days, and that’s very costly to have attorney time involved plus the fact that the courts backed up and sometimes it’s three years to get a decision. In arbitration, it’s a streamlined process. Sometimes within 180 days and the whole problem is resolved. And so, the cost is reduced in that respect, but then you have the cost of the arbitrators. You’ve got to pay the arbitrators. The people pay the judges, the arbitrators are paid privately. Mediation can occur in either litigation or arbitration. In the commercial parts, the courts have been assigning cases to mediation on a regular basis, and it’s found to be very successful, more than 50% of the time. In arbitration, a lot of times the arbitrators will suggest mediation before they get to the final resolution or sometimes in the middle of the arbitration itself, they will sit down and say let me see if we can mediate this and see if we can get it resolved so it is a very effective methodology. There are various things where arbitration is much more helpful; issues such as internal business disputes. A lot of times those can be resolved by arbitration. I put arbitration clauses in a lot of the contracts that I do because of that. I also look at, there are times when litigation is much more effective when there are much more issues of fact, questionable, difficult legal issues. Litigation would be a lot better. Usually, those don’t involve arbitration clauses because once there’s an arbitration clause in an agreement, you have to arbitrate. No, what you can do is you can bring a motion in court. The arbitrator’s decision has to be confirmed by the court under the provisions of the civil practice law and rules. And if you don’t like the decision, you can ask that the decision be thrown out but only on the basis that it was arbitrary and capricious.

What is a merchant cash advance?

A merchant cash advance (“MCA”) is an alternative way for a small or midsize business to obtain funding, typically very quickly. An MCA company will provide a business with a lump sum of money to purchase a percentage of the business’s future credit card and/or debit card sales. MCA transactions need to be carefully structured to ensure that the transactions cannot later be construed as loans and to avoid a host of legal issues related to priority, recourse and usury, among others. When litigation arises regarding an MCA transaction it is important to work with an experienced attorney who understands the numerous legal nuances frequently presented by these disputes. If you are interested in learning more about this topic or have any questions, please contact Lisa Giunta-Popeil, Esq. at [email protected].

How will New York’s Commercial Finance Disclosure Law impact MCAs and factoring in the state?

Enacted in 2020 and dubbed by some as New York’s “Small Business Truth-in-Lending Law,” the Commercial Finance Disclosure Law (“CFDL”) applies to various forms of alternative financing, including MCAs and factoring. The CFDL, which officially became effective earlier this year, subjects MCAs and factors to certain disclosure requirements and imposes civil penalties up to $10,000 for violations. At present, New York’s Department of Financial Services (DFS) is moving toward implementing regulations in connection with CFDL and will thereafter require compliance with CFDL from alternative commercial finance providers doing business in New York. The enactment of CFDL and the DFS’s regulations may introduce new considerations for structuring alternative financing transactions and may present new challenges in any litigation that might arise in connection thereto. If you are interested in learning more about this topic or have any questions, please contact Lisa Giunta-Popeil, Esq. at [email protected].

Commercial Litigation