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Filing an adversary complaint in bankruptcy court for Securities Fraud

An adversary proceeding is a lawsuit filed separate from but related to a bankruptcy case. Such an action can be based on the various types of claims found in 11 U.S.C. § 523, including securities fraud. Currently, there is a split of authority (based on the statutory framework of 11 U.S.C. § 523) on whether a creditor must first obtain a finding outside of the bankruptcy court or enter into a settlement agreement with the debtor, before the creditor may file an adversary complaint based on securities fraud. This article will address the split of authority and will advocate for finding that the creditor must first obtain a finding or enter into a settlement agreement, before filing the adversary complaint.

California's litigation privilege (Civil Code, Sec. 47, subd. (b))

California's litigation privilege (codified at Civil Code, section 47, subdivision(b)) gives a person absolute immunity (i.e., a complete defense) from liability for any "publication or broadcast" made as part of a "judicial proceeding." It applies (and is a complete defense) to any such communication that the person has made in a judicial or quasi-judicial proceeding (as a litigant or witness), or other participants authorized by law, to achieve the objects of the litigation. (Civ. Code, §47, subd. (b).) The privilege covers communications that have some connection or logical relation to a lawsuit. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) Thus, the privilege covers communications made "to achieve the objects of the litigation, even though the publication is made outside the courtroom," including communications having only some relation to a lawsuit. (Silberg, supra, 50 Cal.3d at p. 212.) Moreover, the privilege is absolute in nature, applying "'to all publications, irrespective of their maliciousness.'" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).)

What to include in a non-disclosure agreement

As a California business owner, chances are, you exercise care before hiring someone new, and you make efforts to ensure that the people you hire use discretion when it comes to sharing important information about your business. What happens, though, when someone you placed in a position of trust chooses to leave your operation and sign on at a competitors? At Kashfian & Kashfian, LLP, we recognize the importance of protecting your business’s trade secrets and intellectual property, and we have helped many California business owners establish non-disclosure agreements in an effort to better protect them.

When your business partner breaches a contract

As a California business owner who is also part of a partnership, you may understand all too well that maintaining a successful business partnership is not always easy. When there are “too many cooks in the kitchen,” so to speak, it can be difficult to make decisions that please everyone with a say in the matter, and in some cases, business partners find that they have little choice other than to part ways. This scenario becomes increasingly likely when one partner in the agreement breaches a contract in the eyes of another. At Kashfian & Kashfian, LLP, we have a firm grasp of these and other issues commonly faced by business partners, and we have helped many clients looking to hold their partners accountable for contract breaches make efforts to do so.

How to assert and defend against a prejudgment writ of attachment

Sometimes, creditors are not satisfied with merely filing a lawsuit and waiting until the end of trial (and after post-judgment motions are completed) to obtain assets to satisfy the judgement. Instead, some creditors seek more rapid, immediate relief, by filing what is called a prejudgment writ of attachment motion, which allows them to attach property that the defendant owns even before the debtor has answered the lawsuit. Legally speaking, an attachment is a prejudgment remedy (before trial) providing for the seizure of one or more of the defendant's (or cross-defendant's) assets to aid in the collection of a money demand pending the outcome of the trial of the action. (Whitehouse v. Six Corp. (1995) 40 Cal.App.4th 527, 533.) This article will address the legal issues surrounding a prejudgment writ of attachment, its nuances, how to assert a prejudgment writ of attachment, and how to defend against one. At Kashfian & Kashfian, LLP, we have experience with filing and opposing prejudgment writ of attachment motions, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.

Using California's Anti-SLAPP statute to protect your pre-litigation letters

As often happens before a party files a lawsuit, letters are sent between the parties (establishing their respective positions) and, sometimes, witnesses. These types of letters are referred to as "pre-litigation letters".  Because parties to a lawsuit have diverging opinions as to what transpired, one party will occasionally declare the other party's pre-litigation letter false (or defamatory) and file a lawsuit based on the other party's pre-litigation letter, asserting various causes of action, including but not limited to libel, defamation, tortious interference, etc.

Is the covenant recorded against my property binding on me as a successor in interest?

So, you purchased a property or are thinking about purchasing a property with a covenant (or a deed restriction) recorded against the property, and you want to determine whether the covenant is or would be binding on you as the new owner (legally, termed "a successor in interest"). The answer depends on how the covenant (or the deed restriction) was written, because "whether a covenant binds successors of a party to it" is a "question[] of contractual intent." (Harrison v. Domergue (1969) 274 Cal.App.2d 19, 22 (Harrison) [emphasis added].) This article will provide some guidance on how to make that determination, but, ultimately, you should consult a lawyer. At Kashfian & Kashfian, LLP, we have experience in defending actions seeking to enforce restrictive covenants, including having such covenants declared unenforceable, (see Case Results), and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.

Do You Have a Strong Employment Contract in Place?

California business owners know that contracts are an important aspect of doing business. These protect your interests as the owner, as well as the other party involved. It is particularly beneficial to leverage the benefits of employment contracts to shield yourself from potential complications with your employees.

California, Fraud, Statute of Limitations, and Delayed Discovery

Sometimes, a plaintiff files an untimely lawsuit, which results in the devastating end result that the plaintiff will be barred from receiving any recovery by California's unforgiving statute of limitations. This is especially true with fraud claims, as the statutory provisions and caselaw can be a minefield for those who are not familiar with California law.

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