| Publication Date: | 2019 |
| Available Formats: | Print (667 pages, softbound 1 volume) |
| Electronic (searchable PDF via flash drive, CD, or immediate download) | |
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| Online Publications Library: Access our full library of books online with universal search and links to primary law. |
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| Product #: | 906 |
Content Highlights:
The field of business torts is broad, and any work on the subject is ambitious. This book will be of great interest to business lawyers, but also to employment lawyers or those with a general practice. It explores the most frequently encountered areas: common law torts, duty of loyalty, conversion, tortious interference, covenants not to compete, wrongful discharge, conspiracy to injure a business, the Virginia Uniform Trade Secrets Act, the Virginia Computer Crimes Act, the Virginia Consumer Protection Act, and Virginia and federal antitrust laws. The objectives of this book are to present a useful discussion of the law and provide creative insights and suggestions as to how to effectively pursue litigation in these areas.
Covered in the new edition:
1.1 OVERVIEW
1.2 DEVELOPMENT OF THE LAW OF BUSINESS TORTS
1.201 In General
1.202 Unfair Competition
1.203 Tortious Interference
1.204 Conspiracy
1.205 The Nexus Between Tortious Interference and Conspiracy
1.206 Covenants Not to Compete
1.207 Sanctions
1.208 Virginia Antitrust Act
1.209 Trade Secrets and Computer Crimes
1.3 CONCLUSION
2.2 FRAUD
2.201 In General
2.202 Actual Fraud
2.203 Standard of Proof and Pleading Requirements
2.204 Statute of Limitations
2.205 Sea-Land Service, Inc. v. O’Neal
2.206 Economic Loss Doctrine
2.207 Source of Duty Rule
2.208 Fraud Cannot Be Based on Contract
2.3 DEFAMATION
2.301 Introduction
2.302 General Principles
2.303 Defamation Per Se
2.304 Product Disparagement
2.305 Privilege
2.306 Damages
2.307 Procedural Issues
2.4 INFLICTION OF EMOTIONAL DISTRESS
2.401 In General
2.402 Negligent Infliction of Emotional Distress
2.403 Intentional Infliction of Emotional Distress
2.404 Statute of Limitations
2.405 Workers’ Compensation Act as Bar
2.5 EMPLOYER LIABILITY FOR EMPLOYEES’ ACTIONS
2.501 Overview
2.502 Respondeat Superior
2.503 Negligent Hiring or Retention
2.504 No Cause of Action for Negligent Supervision
2.505 Basis of Liability
2.506 Nature of Plaintiff’s Injury
2.507 Potential Claims of Immunity
2.6 ASSAULT AND BATTERY
2.601 In General
2.602 Elements
2.603 Sexual Assault
2.604 Workers’ Compensation Act as Bar
2.605 Effect on Respondeat Superior Claims
2.606 Common Carriers
2.607 Statute of Limitations
2.608 Damages
2.609 Business Owner’s Limited Duty to Protect Invitees from
Assault and Battery on Premises
2.7 OPPRESSION OF MINORITY SHAREHOLDERS
2.701 In General
2.702 Elements
2.703 Burden of Proof
2.704 Parties
2.705 Remedies
CHAPTER 3: BREACH OF DUTY OF LOYALTY
3.1 OVERVIEW
3.2 EMPLOYEE’S DUTY OF LOYALTY
3.201 General Duty of Loyalty
3.202 Cases Finding Breach of Duty of Loyalty
3.203 Cases Finding No Breach of Duty of Loyalty
3.204 Employees in Positions of Trust or Confidence
3.205 Directors and Officers
3.206 Third Party Liability for Aiding and Abetting
3.3 INDEPENDENT CONTRACTORS/AGENTS AND THE
DUTY OF LOYALTY
3.4 BREACH OF FIDUCIARY DUTY CLAIM MUST STATE
TORT CLAIM INDEPENDENT FROM BREACH OF
CONTRACT CLAIM
3.5 STATUTE OF LIMITATIONS
3.6 PRACTICAL GUIDANCE FOR EMPLOYEES PLANNING
TO SET UP A COMPETING ENTERPRISE
3.7 CONCLUSION
4.1 INTRODUCTION
4.2 ELEMENTS OF A CAUSE OF ACTION
4.201 In General
4.202 Persons Entitled to Bring Action
4.203 Conduct Constituting Conversion
4.204 Knowledge, Intent, and Motive
4.205 Property Subject to Conversion
4.206 Persons Subject to Liability
4.3 UNIFORM COMMERCIAL CODE, NEGOTIABLE
INSTRUMENTS, AND CONVERSION
4.4 DAMAGES
4.401 In General
4.402 Special Damages
4.403 Conversion of Commercial Paper
4.404 Conversion of Stock by Pledgee
4.405 Conversion by Common Carrier
4.406 Conversion of Timber
4.407 Punitive Damages
4.408 Mitigation of Damages
4.5 DEFENSES
4.501 Authority of Law
4.502 Consent or Approval of Owner
4.503 Statute of Limitations
APPENDIX 4-1: COMPLAINT—SHAREHOLDER DERIVATIVE
SUIT—CONVERSION
APPENDIX 4-2: INTERROGATORIES AND REQUESTS—
SHAREHOLDER DERIVATIVE SUIT—CONVERSION
5.1 INTRODUCTION
5.2 INTENTIONAL INTERFERENCE WITH EXISTING
CONTRACTS NOT TERMINABLE AT WILL
5.201 In General
5.202 Analysis of Elements of Claim
5.3 INTENTIONAL INTERFERENCE WITH CONTRACTS
TERMINABLE AT-WILL—THE REQUIREMENT OF
INTERFERENCE BY IMPROPER METHODS
5.4 INTENTIONAL INTERFERENCE WITH PROSPECTIVE
CONTRACT
5.5 INTENTIONAL INTERFERENCE WITH PROSPECTIVE
BUSINESS OR ECONOMIC ADVANTAGE
5.501 Elements of Cause of Action
5.502 Alleging and Proving the Expectancy
5.6 INTERFERENCE WITH ONE’S OWN CONTRACT
5.601 Third-Party or “Three-Actor” Requirement
5.602 Principal-Agent
5.603 Defendant’s Interference with Own Contract
5.7 DAMAGES
5.701 Compensatory Damages
5.702 Punitive Damages
5.8 DEFENSES
5.801 Affirmative Defense of Justification or Privilege
5.802 Legitimate Business Competition
5.803 Financial Interest
5.804 Responsibility for Welfare of Another
5.805 Noerr-Pennington Immunity
5.806 Statute of Limitations
5.807 Anti-SLAPP Immunity
5.9 LEADING CASES
5.901 In General
5.902 Real Estate Brokers and Agents
5.903 Financial Services Providers
5.904 Architects
5.905 Contractors
5.906 Distributors
5.907 Government Contractors
5.908 Manufacturers
5.909 Clubs and Community Organizations
5.910 Computer Technology
5.911 Attorneys
5.912 Insurers and Sureties
5.913 Advertisers
5.914 Commercial Tenants
5.915 Hospitals
5.916 Recreational Sites
5.917 Former Employees
5.918 Higher Education
5.919 Religious Institutions
5.920 Minority Stockholders
5.921 Competitive Bidding
5.922 Parental Rights
APPENDIX 5-1: COMPLAINT—TORTIOUS INTERFERENCE WITH
BUSINESS EXPECTANCY AND/OR PROSPECTIVE ECONOMIC
ADVANTAGE, STATUTORY BUSINESS CONSPIRACY,
AND CONSTRUCTIVE TRUST
APPENDIX 5-2: INTERROGATORIES AND REQUESTS—TORTIOUS
INTERFERENCE WITH BUSINESS EXPECTANCY AND/OR
PROSPECTIVE ECONOMIC ADVANTAGE AND BUSINESS
CONSPIRACY
CHAPTER 6: BREACH OF COVENANTS NOT TO COMPETE
6.1 INTRODUCTION AND OVERVIEW
6.101 History of Virginia Law Regarding Restrictive
Covenants
6.102 General Principles
6.2 CONTRACT FORMATION
6.201 Consideration
6.202 Acceptance
6.203 Termination
6.3 REASONABLENESS OF RESTRAINT
6.301 Guidelines in Assessing Reasonableness
6.302 Criteria for Assessing Reasonableness
6.4 MISCELLANEOUS ISSUES
6.401 Reformation and Blue Penciling
6.402 Separability and Severability
6.403 Indirect Participation in a Competing Business
6.404 Assignability of Noncompetition Agreements
6.405 Effect of Bankruptcy on Restrictive Covenants
6.406 Noncompetition Agreement and Nonrenewal of
Employment Contract
6.407 Resignation and Reemployment
6.408 Enforceability of Covenants in Business Purchase
Agreements
6.409 First Breach Defense
6.410 Choice of Law Provisions
6.411 Statute of Limitations
6.412 Restrictive Covenants Contained in Settlement and
Separation Agreements
6.5 PRACTICAL CONSIDERATIONS IN LITIGATING
NONCOMPETE AGREEMENTS
6.501 Injunctions and Temporary Restraining Orders
6.502 Availability of Declaratory Relief
6.503 Responding to a Noncompetition Claim with a
Demurrer
6.504 Responding to a Noncompetition Claim with a
Plea in Bar
6.505 Proving Damages
6.6 DRAFTING CONSIDERATIONS FOR NONCOMPETITION
AGREEMENTS
7.1 WRONGFUL DISCHARGE IN VIOLATION OF
PUBLIC POLICY
7.101 Overview
7.102 Elements of a Bowman Claim
7.2 CASE LAW DEVELOPMENT
7.201 Discharge of Employee in the Exercise of a
Statutory Right
7.202 Requirement That Employee Be a Member of
the Class of Persons Intended to Be Protected
by the Public Policy
7.203 Discharge of an Employee for Refusing to Commit
a Criminal Act
7.3 DETERMINING THE EXISTENCE OF A PUBLIC POLICY
7.301 In General
7.302 Lawrence Chrysler Plymouth Corp. v. Brooks
7.303 City of Virginia Beach v. Harris
7.304 Rowan v. Tractor Supply Co.
7.305 Blanchard v. Capital One Services, LLC
7.4 STATUTORY PREEMPTION OF WRONGFUL
DISCHARGE CLAIMS
7.401 In General
7.402 Mannell v. American Tobacco Co.
7.403 Cauthorne v. King
7.404 Pruitt v. Johnston Memorial Hospital, Inc.
7.5 INDIVIDUAL LIABILITY FOR BOWMAN CLAIMS
7.6 STANDARD OF PROOF AND DAMAGES
7.7 CONSTRUCTIVE DISCHARGE IN VIRGINIA
7.701 In General
7.702 Dowdy v. Bower
7.703 Molina v. Summer Consultants, Inc.
7.704 Padilla v. Silver Diner
7.705 Gochenour v. Beasley
7.706 Barron v. NetVersant-Northern Virginia, Inc.
7.707 Lundy v. Cole Vision Corp.
7.708 Case Evaluation
7.8 CONCLUSION
CHAPTER 8: CONSPIRACY TO INJURE A BUSINESS
8.1 INTRODUCTION
8.2 COMMON LAW CIVIL CONSPIRACY
8.3 STATUTORY BUSINESS CONSPIRACY
8.301 Statutory Language—Civil Conspiracy
8.302 Statutory Language—Attempted Conspiracy
8.303 Scope of Conspiracy Statute
8.304 Pleading a Claim for Conspiracy
8.305 Elements of a Conspiracy Claim
8.306 Standard of Proof
8.307 Compensatory Damages
8.308 Treble Damages, Punitive Damages, and
the Statutory Cap
8.309 Injunctive Relief
8.310 Attorney Fees and Costs
8.4 DEFENSES
8.401 Statute of Limitations
8.402 Doctrine of Intracorporate Immunity
8.403 Noerr-Pennington Immunity
8.404 Anti-SLAPP Immunity
8.5 LEADING CASES
8.501 Allen Realty Corp. v. Holbert
8.502 Hechler Chevrolet, Inc. v. General Motors Corp.
8.503 Greenspan v. Osheroff
8.504 Tazewell Oil Co. v. United Virginia Bank
8.505 Commercial Business Systems, Inc. v. BellSouth
Services, Inc.
8.506 Advanced Marine Enterprises, Inc. v. PRC, Inc.
8.507 Feddeman & Co. v. Langan Associates
8.508 Simmons v. Miller
8.509 Andrews v. Ring
8.510 Williams v. Dominion Technology Partners, L.L.C.
8.511 Bell Atlantic Corp. v. Twombly
8.512 Banks v. Mario Industries of Virginia, Inc.
8.513 Station #2, LLC v. Lynch
8.514 Dunlap v. Cottman Transmission Systems, LLC
8.515 Almy v. Grisham
8.516 Gelber v. Glock
8.517 La Bella Dona Skin Care, Inc. v. Belle Femme
Enterprises, LLC
9.1 INTRODUCTION
9.2 HISTORICAL DEVELOPMENT
9.3 VIRGINIA UNIFORM TRADE SECRETS ACT
9.301 In General
9.302 Definition of “Trade Secret”
9.303 Definition of “Misappropriation”
9.304 Requirement of Independent Economic Value
9.305 Requirement That Trade Secret Not Be
Generally Known
9.306 Requirement That Trade Secret Not Be
Readily Ascertainable
9.307 Requirement of Reasonable Efforts to Maintain
Secrecy
9.308 Other Provisions of the Virginia Act
9.4 CONCLUSION
APPENDIX 9-1: COMPLAINT—VIOLATION OF VIRGINIA
UNIFORM TRADE SECRETS ACT AND OTHER
RELATED CLAIMS
APPENDIX 9-2: CONFIDENTIALITY STIPULATION AND
PROTECTIVE ORDER
10.1 INTRODUCTION
10.101 History of the Act
10.102 Framework of the Act
10.2 VIRGINIA COMPUTER CRIMES
10.201 Computer Fraud
10.202 Transmission of Unsolicited Bulk Electronic Mail
10.203 Computer Trespass
10.204 Computer Invasion of Privacy
10.205 Gathering Personal Information by Deception
(“Phishing”)
10.206 Theft of Computer Services
10.207 Personal Trespass by Computer
10.208 Harassment by Computer
10.209 Property Capable of Embezzlement
10.210 Computer as an Instrument of Forgery
10.211 Encryption Used in Criminal Activity
10.3 OTHER PROVISIONS OF THE ACT
10.301 Statute of Limitations
10.302 Personal Jurisdiction
10.303 Protection of Secrecy, Trade Secrets, and Privacy
During Proceedings
10.304 Preemption
10.305 Damages
10.4 CONCLUSION
11.1 INTRODUCTION
11.2 ANALYSIS OF A CLAIM
11.201 Application of the VCPA
11.202 Key Definitions
11.203 Unfair Business Practices Prohibited
11.204 Violations of Other Virginia Statutes
11.205 Foreclosure Rescue
11.206 Misrepresentation
11.207 Authorized Transactions Not Covered
11.208 Privity Between the Parties
11.209 Justifiable Detrimental Reliance
11.3 DAMAGES
11.301 Actual Damages
11.302 Treble Damages for Willful Violations
11.303 Attorney Fees and Costs
11.4 STATUTE OF LIMITATIONS
11.5 ADDITIONAL STRATEGIES
11.501 Plaintiff’s Counsel
11.502 Defense Counsel
APPENDIX 11-1: COMPLAINT—VIOLATION OF THE VIRGINIA
CONSUMER PROTECTION ACT
CHAPTER 12: ANTITRUST VIOLATIONS
12.1 OVERVIEW
12.2 JURISDICTION OVER VIRGINIA COMMERCE
12.3 PROHIBITED CONDUCT
12.301 Conspiracy to Restrain Trade and Monopolization
12.302 Price Discrimination
12.303 Defenses to Price Discrimination
12.304 Discrimination in Providing Promotional Benefits
12.305 Advertising and Promotional Allowances
12.306 Buyer Liability for Receiving Discriminatory Price
12.4 CONDUCT IMMUNIZED BY STATUTE
12.5 GOVERNMENT INVESTIGATIONS AND CIVIL
INVESTIGATIVE DEMANDS
12.501 Attorney General to Investigate Suspected Violations
12.502 When a CID May Issue
12.503 Attorney General’s Authority to Issue a CID
12.504 Content and Service of CID
12.505 Documents in Lieu of Sworn Answers
12.506 Challenging a CID
12.507 Sworn Testimony Taken; Advice and Participation
by Counsel; Witness Fees and Mileage
12.508 Failure to Comply with CID
12.509 Self-Incrimination; Immunity; Contempt
12.510 Cooperation of State and Local Officials and
Employees Required; Confidentiality
12.6 GOVERNMENT ENFORCEMENT
12.601 Actions for Injunctive Relief and Civil Penalties
12.602 Actions for Actual Damages; Treble Damages
12.603 Parens Patriae Actions
12.604 Attorney’s Fees Recoverable
12.7 PRIVATE RIGHT OF ACTION
12.701 Action for Injunctive Relief and Damages
12.702 Action for Actual Damages; Costs of Suit;
Attorney’s Fees; Treble Damages
12.703 Forum and Venue
12.8 MISCELLANEOUS ISSUES
12.801 Pleading a Claim
12.802 Effect of Conviction
12.803 Statute of Limitations
12.804 State Action Immunity
12.805 Noerr-Pennington Immunity
12.806 Intracorporate Immunity Doctrine
12.807 Business of Insurance Not Exempt
TABLE OF AUTHORITIES
INDEX
EDITORS:
Edward Lee Isler
Edward B. Lowry
David W. Thomas
AUTHORS:
Elaine Charlson Bredehoft
Francis H. Casola
Thomas M. Dunlap
David L. Greenspan
Nicholas R. Klaiber
Kathleen Zahorik Quill
Steven W. Ray
Lori H. Turner
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