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CALIFORNIA CORPORATE & SECURITIES LAW

Dismissal Based On Forum Non Conveniens Does Not Trigger Fee Shifting

California generally follows the “American Rule” with respect to attorney’s fees.  Trope v. Katz, 11 Cal.4th 274, 278 (1995).  Under the American Rule, each party to a lawsuit must ordinarily pay his own attorney’s fees.  A contract may provide, however, that the prevailing party to an action on the contract may recover attorney’s fees.  Sometimes these clauses are unilateral…

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Do Some Companies Already Have Fee-Shifting Provisions (And Not Know It)?

A lot of folks these days are arguing and writing about fee-shifting bylaws as if they were some kind of novel and sudden irruption, like Athena bursting from Zeus’ skull.  This overlooks the existence of fee-shifting provisions in a myriad of existing contracts.  Arguably, some of these provisions may already applicable to derivative plaintiffs. When it comes to attorney’s…

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Defendant Prevails On Non-Existent Contract

Sometimes, the law simply gets “curiouser and curiouser”.  Last week, I happened across a decision by the Fourth District Court of Appeal that reached the remarkable conclusion that a defendant was the prevailing party on a contract that it had proved didn’t exist.  Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc., 2012 Cal. App. LEXIS 1202 (Nov.…

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