Affirmative Litigation

Affirmative Litigation (a/k/a being the Plaintiff in a commercial dispute) involves representation of a company, entrepreneur, or business owner as a plaintiff in federal or state court or arbitration. The lawyers at Henderson Parks are adept at navigating disputes that arise in business relationships. We partner with our clients to formulate effective theories and strategies to proactively pursue a recovery.  

 

The lawyers at Henderson Parks try multiple cases as the "plaintiff" every year. The experience gained from those actions provides us with the skills to focus on the heart of the issues and bring affirmative litigation to the swiftest possible resolution. The lawyers at Henderson Parks have distilled their approach into 7 "keys" to successful Affirmative Litigation:

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1. Understanding the resolution goals with the client (i.e., an injunction, reimbursement of expenses, return of defective products, etc.):

2. Conducting a strong pre-claim workup, learning the details of the dispute, obtaining key documents, and interviewing key witnesses;

3. Strategically considering the legal avenues based on the resolution goals and the pre-claim workup, including venue and types of claims and recoveries;

4. Drafting a cohesive complaint that supports claims and will withstand (and dissuade) motion practice;

5. Crafting a focused and targeted discovery plan (and draft discovery and subpoenas) to gather supportive evidence and learn any adverse evidence the other side my possess;

6. Obtaining a reasonably tight case schedule and limiting discovery disputes to essential evidence; 

7. Positioning the case for resolution, by evaluating whether the matter can likely be decided by summary judgement, or whether a trial would be more effective and achieve the desired outcome. 

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Henderson Parks' affirmative litigation experience includes • Claims for breach of contract and damages for non-performing products and services; • Enforcement of restrictive covenants (non-competes, non-solicitations, and confidentiality agreements) and seeking injunctive relief to secure compliance; • Closely held business disputes among owners, partners, and shareholders in disputes involving access to records, freeze-outs, dissolution, buyout and earn-outs and breach of fiduciary duty; • Commercial real estate disputes involving misrepresentations about the purchase and sale, valuations, breach of lease, and broker commission disputes; and • Financial services litigation and claims involving loan enforcement and breach of contract.

 

The lawyers at Henderson Parks have successfully obtained relief for the plaintiff in commercial matters, including:
 
✔ Represented health care system seeking to return and obtain a refund for defective medical equipment.  Achieved a settlement of the matter after discovery, whereby the equipment was returned and the client obtained a refund. 

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✔ Represented preservation agency in obtaining the last large piece of open land in metropolitan area through a non-eminent domain contested acquisition process. Prosecuted the action, including through multiple interlocutory appeals on interim relief, a bankruptcy stay to avoid trial, and ultimately a trial where the verdict was entered in favor of the agency for the land, plus $18,000,000 in damages.

 

✔ Represented trademark owner against infringing national non-profit utilizing confusingly similar name for newly launched international initiative.  Infringer voluntarily changed the confusing name and re-branded the entire initiative.  
 
✔ Represented cleaning supplies distributor against former employees who took trade secrets. Obtained preliminary injunctive relief and reached a settlement that prevented further customer loss. 

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✔ Represented aircraft owner against service provider that overcharged, did not complete repairs, and did not complete the project on time. Prevailed on claim for breach of contract at trial. 

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Representing the plaintiff requires a different skill set than representing the defendant. If you or your company is considering bringing affirmative litigation, consult with a lawyer who regularly represents plaintiffs. ​​