Practice Areas - Commercial Litigation

Commercial litigation is not the same courtroom work most imagine when they think of lawyers going to trial.

Commercial litigation is not the same courtroom work most imagine when they think of lawyers going to trial. It does not involve a PI (personal injury) where lawyers specialize as plaintiff or defense counsel. (A plaintiff is typically represented by a contingent-fee lawyer in PI cases, and they generally settle the case because defense represents an insurance company that settles most cases.) In fact, there is not a plaintiff or defendant side to commercial litigation because the case is a dispute rather than an accident, so one side or the other files suit. It is a matter of who sues first to resolve the business dispute. Business disputes are usually not covered by insurance, so the cost of litigation is borne by the parties. If the problem arises out of contract, the losing party pays the other side’s attorney’s fees in Arizona and many other jurisdictions even if the contract does not say so. Commercial cases are complex because they involve documents. Lots of documents. Documents includes ESI (electronically-stored information) like emails, spreadsheets, accounting records, text messages, recordings, and, well, almost everything is electronic today. ESI includes metadata, the information encoded on every electronic document that provides basic information about an electronic document: when it was created, any modifications: the tracks leading to the end product. The metadata is not a part of an electronic document that is printed. A printed document is a flattened version of the electronic source because it lacks the depth of information—the metadata—that is part of the document. Looking at documents often involves something like forensic criminal science, it is digging out the data that describes what happened and when it happened. Did this person copy that information off the company computer onto a thumb-drive? When was information deleted from a computer or phone or iPad? Can deleted information be recovered?

The complexity of a commercial case with all the documents and the management of all of the data means that this type of litigation can be expensive. Sometimes that is a benefit because it incentivizes parties to settle, but at other times, the party with resources thinks they can simply outlast the other party, so it can take a David to slay the Goliath. If the parties can get through the pretrial expense to the courtroom, then the playing field is very level. Only one lawyer gets to stand at the podium at a time, so it is one against one. It does not matter that this Goliath has a massive army to support his position. The Goliath is just one, like a David with his sling. Whether the client is large with resources or small and fighting for its survival, the lawyer still needs to be nimble and know how to select and sling the rocks at hand. And if the client cannot afford to turn over all the soil in the field of discovery to find the right stones, the lawyer needs client’s help to find just the right rocks. Changing the metaphor slightly, digging around in the field of discovery is something like looking for worms so the lawyer can go fishing—go to trial. Large law firms with a large war chest can send lots of lawyers into the field of discovery to turn over rocks looking for worms, even though all that is needed is just enough bait to catch a fish. These large firm litigators want every worm. And the expense can be daunting. The lawyer who actually tries cases, however, just wants enough worms in his can to catch the fish. It is less expensive. There are different types of commercial cases. Examples of cases handled by Williams Commercial Law Group follow.


A. Contract Disputes

A majority of commercial cases arise out of contract, written, oral, or implied. A purchase agreement for real estate is a contract. A lease is a contract. An employment agreement is a contract. A promise to pay is a contract.

A contract involves an agreement to do something in exchange for something, and as with all litigation, issues are resolved by evidence. The lawyer must find enough evidence (a written contract is merely evidence of the agreement) to support the client’s view of the agreement so that the jury will vote for the client. Dimension and form must be given to the parties’ case. It must be clear and understandable to a jury even if it involves what would otherwise be esoteric to them. The lawyer is a teacher in the classroom. One of the common elements of a commercial contract case is the use of accountants and economic experts to explain evidence and show damages. The use of the sophisticated courtroom technology developed and used by Daryl Williams in the courtroom enables Williams Commercial Law Group to be very successful in the courtroom. Explaining esoteric things like the illogical rules that govern accounting GAAP—generally accepted accounting principals (try explaining the FASBs to a layman)—or the logic of economic analysis, which typically involves marginal cost and profit concepts, are helped by graphics. In fact, graphs are essential when talking about economics. It all has to be understandable to them without a college degree. Judge Margaret H. Downy introduced Daryl Williams at an Arizona State Bar seminar that included the use of electronics in the courtroom by saying, “He can even make a breach-of-lease case understandable and interesting.” Judge Ed Burke responded to an objection that the lawyer did not know where Mr. Williams was going with a level of questioning by saying, “Neither do I, but I want to see. Overruled.” The Presiding Judge Colin Campbell introduced a group of jurists from a foreign country to Mr. Williams during a trial, “This is one of our finest trial lawyers.” Judge Robert Gottsfield, sua sponte, introduced Daryl Williams to an elevator packed with people by telling everyone, “This is a real lawyer who just got on.” Judges remember and highly regard what Daryl Williams does in the courtroom.


B. Survival of the Company

Litigation Some disputes involve more than merely a question of a breach of contract and damages. Some disputes are so significant that the very survival of a business is at stake, so the business owner is compelled to fight to survive.

• This sort of litigation exists when the company is sued for more money than it has and will go out of business if it loses. • Company employees often walk off with trade secrets and start a competing business. • Some will infringe on patents, and litigation is required to preserve the patent or a related asset, trade dress and trade marks under the Lantham Act.

• Trade dress and trademark litigation is survival-of-the- business type litigation.

• Survival-of-the-business litigation involves the company’s good will. • Survival can be when a company like Exxon Mobil sues an engineering company for breach of contract that involves construction of fuel delivery systems for Exxon Mobil, which pulls out all the stops to shut down the multi-state engineering firm. Daryl won that jury trial and saved the company, Tait and Associates, and got a rare thank-you. The picture of the hand holding a sling shown above is from the owner of M- 14P after winning a case in 2021 against a wealthy man who was miffed, had lots of money, but wanted to teach M-14P a lesson. Oops. M-14P hired Williams Commercial Law Group. It took two and one half years, but the jury gave it the case in less than an hour, and one juror wrote this email to the judge:


C. Company Deadlocks

What equal partners thought when they started a business is sometimes not what happens, and a deadlock can develop. Deadlocks can be resolved at the beginning of a business by having a good transaction lawyer, which Williams Commercial Law Group is not, anticipate the possibility of a deadlock. If that has not happened, then you need the skills of lawyers like those at Williams Commercial Law Group to resolve disputed claims. It is something like a divorce proceeding, but it can be even more acrimonious and difficult in a cold-blooded way. • How are profits divided? • Was there an audit process? • Was there misfeasance or some other defalcation? • How do you muster the evidence to convince the jury what happened?


D. Good Faith and Fair Dealing

Written contracts are merely evidence of an agreement, but no writing contains all of the terms of the agreement even if the contract says it does. Contracts that say they cannot be modified without a writing still can be. The clause is meaningless because the intention of the parties can change, so a contract is always subject to change after it is made, and it may have metamorphosed into something that is different than the out-of-date writing. When the bad guy starts using the contract as a sword to justify what he is doing, something that thwarts what was or became the intention of the agreement, the likely bad-faith conflict must be resolved by litigation. On the other hand, the bad guy may be trying to justify actions that are contrary to a written agreement based upon a change in that agreement or a misunderstanding. You must be able to marshal the evidence to thwart that, as well. Then there is mutual mistake of fact by both parties to a contract that works to the advantage of one of the parties who invariably says, “That’s not what the contract says.” If you are dealing with someone who keeps retreating to the contract to whip you into line when you really are coloring within the lines, you are in a bad relationship. Litigation is likely. You need Williams Commercial Law Group.


E. Anti-Trust and Unfair Competition

Anti-trust and unfair competition embraces a range of activities that are improper under statutory or common law. It might be a violation of one of the anti-trust enactments, both federal and state. But it can involve commercial torts like theft of trade secrets, interference with contractual relationships by inducing someone to break a contract, or even interfering with a prospective business advantage. Employees and officers and agents owe fiduciary duties to their company or principal and cannot benefit themselves by taking advantage of what rightly belongs to the company or the principal. These are the sorts of issues that Williams Commercial Law Group handles.


F. Commercial Torts

The Latin term used by lawyers for contract actions is ex contractu. The term used to describe tort actions is ex delicto. Duties can arise ex contractu because of contractual agreements, but duties also arise ex delicto because of statutory and common law that, for example, prevents a person from committing fraud. If someone commits a tort maliciously with an intent to harm, then punitive damages can be recovered for such ex delicto actions. Certain commercial torts can arise out of a contractual relationship, which may allow the party to recover attorney’s fees as though it were a contract action. A violation of state or federal securities laws is a species of commercial tort. Similarly, other statutory violations can give rise to these type of extra-contractual lawsuits that resemble business matters.


Arizona has a Consumer Fraud Act. This allows the State of Arizona to act like a mini-FTC (Federal Trade Commission) to police what the Consumer Fraud Division of the Arizona Attorney General’s Office decides is fraudulent. But it is not really fraud in the common-law sense. A representation in a consumer transaction just has to be untrue. What is and is not true has provoked a lot of philosophical discussions, so the attorney general needs to exercise good sense before going after someone. Unfortunately, the courts have implied a private right of action based on the Consumer Fraud Act so consumers can sue under this act even though they were not defrauded. Williams Commercial Law Group handles such cases. The Federal Trade Commission Act gives the FTC power and enforcement rights that shock an ordinary person and can catch a business unaware. The FTC has a political agenda rather than a reasonable attitude and has had a history of expanding its influence and exercise of power beyond the pale of reason and statutory authority. Indeed, Daryl Williams filed an amicus brief with the United States Supreme Court, which unanimously reigned in the FTC in what the Wall Street Journal called a smackdown. The WSJ’s front page article can be viewed here, (link to “A 9-0 Defeat for the FTC – WSJ”) and its editorial, “A Case of Blindside Regulation,” can be viewed, right. The Supreme Court Brief filed by Daryl Williams can be viewed here: Williams Commercial Law Group handles such cases.


G. Aviation

Daryl Williams is a commercial pilot who has thousands of hours of flight time and continues to be an active pilot. He has handled aviation cases for more than forty years, including all types of claims arising from aircrafts, airports, regulatory issues, and disputes with the FAA (Federal Aviation Administration) and the NTSB (National Transportation Safety Board). Williams Commercial Law Group has been involved in these types of cases, including representing airport sponsors, airport tenants, and Part 16 complaints at the FAA for violation of federal grant assurances. Almost all airports are recipients of federal money, a virtually uncontrolled flood of money that benefits airport development and operation. The money has strings. The recipient/sponsor of the airport agrees to certain covenants, the grant assurances, and can be sued if it violates them. Daryl Williams had a trial judge in Maricopa County rule that his client was a third- party beneficiary of these grant assurances—contractual obligations—at the same time he filed and obtained a ruling by the FAA administrator that the City of Glendale, Arizona, was violating the grant assurances by violating them vis-a-vis client. This seismic Part 16 ruling can be viewed here: (link to Kingman Final Order of Condemnation) The civil verdict against the City of Glendale can be viewed here: (link to FAA Part 16 Determination) Daryl Williams has also represented owners of airports. One notable case was when the City of Kingman, Arizona, had entered into an improvident lease that gave control of Kingman’s airport to an airport authority for decades. The City of Kingman wanted its airport back, but the airport authority spurned what the city wanted, confident in its position that it had a long-term lease with a very liberal cure provision that virtually assured it that it could not be ejected from the airport for any breach of contract. So the City of Kingman hired Daryl Williams and got the airport back within six months. He thought outside of the box. Representing the sovereign, he merely condemned the personal-property interest the airport authority had in its lease with the city. Actually, it was not so simple. The airport authority pulled out the stops, filed a case in federal court, removed the state condemnation case to federal court, raising all sorts of constitutional issues, principally the constitutional proscription upon impairment of contract, but it lost at every turn because of precedent that was established in the 1790s. The state court judge’s ruling that finally gave the airport back to the city and resulted in the airport authority striking its tent and going home can be viewed here: (link to City of Glendale Minute Entry-Verdict). Aviation is one of the most regulated industries in the United States, so it helps to have a lawyer who understands the difference between a connecting rod and a compressor wheel. How a piston or reciprocating engine generates power as opposed to what the compressor wheels and the stators in a turbine engine do.


H. Other Types of Cases

The foregoing gives a flavor for what Williams Commercial Law Group does. Complicated, document intensive, work requires analysis and thought. Williams Commercial Law Group does these types of cases. If the facts or the law are gray so the case will end up in the courtroom, Williams Commercial Law Group will handle it.

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