Overview
Business involves risk and with risk comes reward. But not always. When things go wrong, you need to be ready. Litigation is almost never the preferred path, but sometimes is necessary. When other options are exhausted, vigorous advocacy is required to enforce rights and defend interests.
At Foster Swift, our commercial litigation team helps clients navigate business disputes to successful outcomes. While litigation distracts from objectives and drains resources, our litigators draw on their experience and knowledge to execute strategies that make the best of difficult situations.
Proactive Approach
While most transactions don't lead to disputes, litigation lurks on the edges of many business interactions. We help our clients reduce risks by helping them avoid litigation in the first place. From proactively incorporating risk shifting and litigation alternative provisions into a client's business and contractual instruments, to rapidly reacting to - and resolving - potentially threatening developments in their earliest stages, there are many techniques, methods and processes we employ to avoid costly disputes.
Ready from the Start
Not every case goes to trial. But we're ready if it does. From the outset, we prepare and strategize as if a case will go the distance. Preparation enables us to achieve the best results at trial, and also the best settlements from opposing parties who understand that we are not afraid to try cases. By being ready from the start, we're poised to win.
Agile and Aggressive
From fast moving injunction proceedings to fact intensive UCC disputes, Foster Swift's Commercial Litigation team handles a wide range of matters for clients across Michigan. Our lawyers are regarded as agile and aggressive advocates who try and win cases in state and federal courts, as well as in alternative dispute resolution forums.
Technologically Sophisticated
We use technology to increase effectiveness, productivity and to keep costs down. Technology is harnessed for both trial preparation and presentation, including for discovery, case management and graphics. Technology also enables us to stay in 24/7 contact with our clients – wherever they may be.
Business Focused
We make it our priority to understand and protect our clients’ most important business interests. Sometimes this means negotiating a resolution. Other times it means pushing forward to trial. Always it means aligning our litigation strategy with our client's business strategy.
On the Cutting Edge
Several of our attorneys are credentialed in alternative dispute methods, including one who is an approved commercial neutral by the American Arbitration Association and certified mediator for international business conflicts by the International Mediation Institute.
Areas of Focus
While our Commercial Litigation attorneys represent businesses across industries and in connection with a broad range of claims and disputes, we have significant experience in the following areas:
Contract Disputes
Often times, even sophisticated business entities might not view the same contract in the same manner. Sometimes parties to an agreement neglect to reduce it to writing, creating settings ripe for disputes. Foster Swift attorneys are highly experienced in litigating disputes involving contracts. These disputes sometimes call for creative approaches and decisive action.
Creditor Rights Law/Bankruptcy
Foster Swift attorneys represent Creditors, Debtors, Trustees and other interested parties in actions pending in Bankruptcy Courts. The Foster Swift bankruptcy team has extensive experience in Chapter 11, Chapter 13 and less frequent filings such as Chapter 12. This includes advising its clients on such issues as lien priority, claims handling and adjudication, preferences, avoidance actions, lift of stay proceedings, and fraudulent conveyances.
In the area of Creditor Rights, Foster Swift attorneys represent individuals, businesses, and financial institutions in negotiation, litigation, the appointment of receivers, and pre and post-judgment activities to obtain and collect judgments, delinquent accounts, and contractual obligations (such as the sale of goods). We are efficient in obtaining judgments, conducting research regarding borrower’s or debtor’s assets, negotiating payment structures, and issuing Garnishments and Writs of Seizure. Additionally, we have significant experience in seeking the appointment of receivers over the borrower’s assets, and working with receivers to reach a positive result for the creditor.
Construction Law
With complex contracts at issue, considerable money at stake, and many parties at the table, construction projects often result in some form of litigation. We represent clients in state and federal courts, as well as arbitration and mediation proceedings, in connection with:
- State and federal bond claims
- Construction liens and foreclosures
- Builder's trust fund matters
- Claims for extras, delay claims, claims for acceleration, claims for loss of efficiency, differing site conditions and bid protests
- Breach of contract
- Collateral damage from construction projects
Employment Contracts & Litigation
Our team is skilled and experienced in representing businesses and individuals in disputes arising out of employment and business contracts, including:
- Covenants not to compete
- Sales commission claims
- Shareholder or member disputes
Environmental Law
Foster Swift is one of the first firms in Michigan to develop an Environmental practice, and has advised clients and litigated a wide range of federal and state environmental matters, including:
- Government and citizen enforcement suits
- Private cost recovery actions
- Environmental insurance coverage cases
- Toxic tort claims
- Groundwater contamination
- Fracking suits
- CERCLA contribution claims
Governmental Litigation
State-wide, many municipalities turn to our firm for representation on an on-going basis. In addition to land use and zoning litigation, Foster Swift attorneys frequently defend municipalities in cases involving municipal liability, workers’ compensation and negligence. A considerable portion of our litigation practice involves the representation of municipal governments in litigation involving civil rights claims, constitutional claims and governmental immunity. Foster Swift attorneys have successfully represented many municipalities against lawsuits alleging improper or defective public works construction. We currently serve as approved counsel for the Michigan Participating Plan, which is a plan that provides a stable insurance market for governmental entities.
Insurance
Foster Swift’s clients include some of the world’s largest insurance companies as well as state-based mutual insurance companies. Foster Swift attorneys cover a wide variety of legal matters that include:
- Coverage disputes involving all types of policies
- Defense of claims through trials and appeals
- Claim investigation such as examinations under oath, subrogation, and more
- Our attorneys are sometimes called upon to help draft or review insurance policy language
Trademark and Copyright
Our litigation attorneys vigorously seek to protect our clients’ information and enforce their rights. From requests for injunctive relief to protect trade secrets, to trials on the merits of seeking damages resulting from wrongdoing, Foster Swift litigators take decisive and determined action.
Transportation Law
Moving freight can often make or break a project. Doing it well enhances profitability while doing it poorly can spell disaster. We represent clients in a wide range of transportation law actions, including:
- Accident defense
- Freight claim disputes, employment and personnel leasing issues, liability-negligence actions and insurance coverage issues
- Actions claiming violations of local and state highway regulations, including truck weight issues
SUCCESSFUL REPRESENTATIONS
Our clients have prevailed in all sorts of claims, including many difficult, high-stakes cases. These cases, many of which resulted in bench or jury trials in state and federal courts across Michigan, include:
- The Foster Swift litigation team successfully defended the County of Muskegon in a multi-million dollar breach of contract case filed against the County by a former IT vendor. At trial, the vender sought damages for all outstanding payments under two previously-terminated IT services contracts (approximately $4 million), as well as lost business value and lost profits on related sales (approximately $12.2 million). The County retained Foster Swift just months before the damages-only trial. The team’s hard work significantly limited vendor’s judgment, and no damages were awarded for lost business value or lost sales.
- A major national trust and private banking institution needed counsel in federal litigation. We aided the client in addressing claims involving securities and investment management issues.
- A national paper products manufacturer had a problem with an application of the Whistleblowers’ Protection Act to illegal employee activity. In a case of first impression, our attorneys obtained favorable federal district and appellate court judgments.
- An internationally recognized manufacturer of custom ice hockey goalie equipment engaged us to protect its business and product. Our team won a ten-day jury trial – and hundreds of thousands of dollars in damages for our client – in federal court against two of our client’s former employees and the businesses they formed which manufactured and marketed confusingly similar goalie products.
- A Michigan-based farm equipment dealer hired us to bring claims against another party under the Michigan Farm and Utility Equipment Act and the Michigan Antitrust Reform Act. Our trial team won a $5.15 million jury verdict for our client, which was upheld following an extensive 15 months of post-judgment motions.
- A rock & roll band retained us to defend against a former band manager’s breach of contract and conversion suit for non-payment of royalties. We obtained summary dismissal of the claims as the Court ruled that the band manager’s non-attorney contingent fee litigation broker/middleman contract violated public policy and was void and unenforceable.
- A coalition of forest and paper products industry members and trade associations hired our team to lead a challenge under the Federal Clean Air Act. We were successful.
- General liability insurers were looking at major environmental coverage litigation. Our attorneys successfully defended claims involving historic contamination at a rubber products manufacturing facility.
- Various transportation entities, such as brokers, freight forwarders, motor carriers and railroads, engaged us to defend defense cargo claims against them. We did so successfully.
- An out-of-state auto financing company needed Michigan counsel to defend a claim under the Fair Credit Reporting Act. We drafted, argued and won a motion to dismiss for lack of personal jurisdiction.
- An individual who was sued by his former employer engaged us to defend against a claim that he breached a covenant not to compete. We won dismissal of the claim.
