preparing to speak with parabellum

COMMERCIAL claims

 
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After we sign an NDA, we will schedule an initial call to learn more about your case.  In our experience, many initial calls prove unproductive if not focused on certain key, basic issues.  To make our conversation as efficient as possible, we encourage you to think about the answers to the questions below in advance of our discussion.  While you should aim to be informative, make sure that you only provide factual information.  Do not disclose anything that is privileged

1. YOUR CLAIM
(IN 5 MINUTES OR LESS)

You have an important legal claim.  That often means you could speak for hours about the underlying facts giving rise to the dispute at hand.  Yet the initial call needs to be focused so we can make a threshold determination of whether your case meets our investment criteria. 

While it may be difficult at first, do your best to consolidate your story into a 3-5 minute high-level overview that you can present at the beginning of the call.  More details will be discussed in further detail as the conversation continues.  You should be able to provide the following information:

☐ The name of your company and your line of business

☐ The nature of your claim (e.g., breach of contract, antitrust, theft of trade secrets)

☐ The amount of your damages (which can be within a broad range)

☐ A brief description of what happened

☐ The timeframe in which the relevant events occurred

☐ Whether litigation has already commenced

☐ Why you need funding

2. RELATED LITIGATION

If litigation has already commenced, provide us with details about the case so that we can review publicly available information.  Once we know the status of the case, we may have additional, targeted questions to ask.  In some circumstances, there is other, related litigation in which you are not necessarily involved, but which may be relevant.  Examples include past litigation involving the same subject matter, as well as similar suits brought by other parties against the same defendant.  Be prepared to provide the following information:

☐ Case names

☐ Case/docket/index numbers

☐ Court names

☐ Status (e.g., motion to dismiss pending, mid-discovery, summary judgment, pre-trial, enforcement, appeal)

3. THE PARTIES

Litigation can involve many parties.  We need to know the entities that may be implicated in your suit.  This may include corporate parents, subsidiaries, shareholders, officer, or directors.  For each, be prepared to list its:

☐ Legal name

☐ Location

☐ Role in the suit

4. YOUR DAMAGES

Damages can take many forms.  We need to know how you have been damaged, and why.  We are also interested in learning about your ability to collect on a judgment if your litigation is successful.  Be prepared to discuss:

☐ The nature of your damages (e.g., lost revenue, lost profits, out-of-pocket costs, destruction of business)

☐ The basis of your damages (e.g., lost business opportunities, documented payments to third-parties, valuations)

☐ Insurance policies that may cover your claim

☐ Information regarding the defendant’s assets, liabilities, and reserves

☐ Whether there are any ongoing settlement negotiations

☐ Whether you are seeking other, non-monetary relief

5. KEY CONTRACT PROVISIONS

In contract disputes, we need to know whether certain contractual provisions are present.  Identify whether the following clauses exist:

☐ Arbitration (whether contractual disputes must be arbitrated)

☐ Forum selection (the jurisdiction where disputes must be litigated)

☐ Limitation of liability (maximum damages recoverable, and inability to recover for lost profits, indirect damages, or consequential damages)

☐ Statute of limitations (limiting the time period to bring suit to a set amount of time)

☐ Fee shifting (awarding attorneys’ fees to the prevailing party in litigation)

6. DEFENSES AND COUNTERCLAIMS

We trust that you can persuasively present your side of the case.  But we need a sense of the full picture.  We are often approached with investment opportunities after the dispute has been discussed between the parties – whether informally, in correspondence, or in court filings.  Let us know what defenses your adversary has articulated.  Also, let us know if there is a possibility that the defendant will file claims against you.  This is important, regardless of whether you believe the counterclaims have merit.  For example, let us know if the defendant told you any of the following:

☐ Your claim is barred by the statute of limitations

☐ The contract at issue forecloses your claim

☐ You lack standing

☐ Documentary evidence demonstrates there is no liability

☐ Your damages are not recoverable

☐ You are equally at fault

☐ If you sue, a counterclaim will be filed

☐ Other responses

7. YOUR RELATIONSHIP WITH COUNSEL

You may have already retained counsel, or have someone in mind.  We are interested in learning the following information (remember not to give us any privileged information):

☐ Names of law firms and specific attorneys that you have engaged or consulted

☐ Existing and proposed fee structures, including hourly rates and any contingency components

☐ Litigation budgets you have received

☐ Litigation spend to date

8. YOUR FINANCING NEEDS

Parties need financing for various reasons.  You may not have the capital to prosecute your case, or you may want to invest in your business instead of paying lawyers by the hour.  Let us know if you need funding for:

☐ Out-of-pocket costs

☐ Attorneys’ fees

☐ Monetization

☐ Business operations

Timing may also be a key consideration.  In that regard, you may be simultaneously speaking with other funders.  We are interested in knowing:

☐ Hard deadlines by which you need funding

☐ The status of your negotiations with other financing sources