A Contract is a Contract —or Is It? What attorneys need to know about breach of contract and fraudulent inducement claims and defense

Joshua Schlenger
Danielle Vrabie
Bradley Rank
Juthamas (Judy) Suwatanapongched
Joshua Schlenger | Sheppard Mullin
Danielle Vrabie | Sheppard Mullin
Bradley Rank | Sheppard Mullin
Juthamas (Judy) Suwatanapongched | Sheppard Mullin

On-Demand: June 4, 2024

A Contract is a Contract —or Is It? What attorneys need to know about breach of contract and fraudulent inducement claims and defense

$195.00 2 hour CLE

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Program Summary

Whether for a small real estate deal or a massive multi-billion-dollar acquisition, parties enter into contracts to set the rules of their transaction or relationship and gain certainty about their respective rights and obligations. At least, that’s the goal. Litigating a claim based on a contract, however, is almost never simple: Claims for breach of contract are often subject to statutory or common law requirements, as well as unique defenses, that the parties’ attorneys sometimes overlook. For example, the tort of fraudulent inducement of contract (itself a standalone claim) may sometimes serve as a defense for a breach of contract claim. In addition, attorneys preparing contract-related or fraudulent inducement claims or defenses must keep in mind special heightened pleading requirements (including rules of professional conduct and ethics relating to frivolous or baseless allegations) that may apply to these claims.

This seminar will clue attorneys into the rules and case law they should keep in mind as they are litigating contract-based claims and defenses.

This course is co-sponsored with myLawCLE.

Key topics to be discussed:

  • Elements of breach of contract and available defenses
  • Fraudulent inducement as a defense to a breach-of-contract claim versus as an affirmative tort claim
  • The relationship between special pleading requirements and attorney ethics rules applicable to contract and fraudulent inducement claims

Closed-captioning available

Speakers

Joshua Schlenger_FedBarJoshua Schlenger | Sheppard Mullin

Josh represents corporate clients and other business entities in high-stakes litigation in New York Courts and jurisdictions nationwide. He guides clients in the financial services, pharmaceutical, aerospace and manufacturing industries through commercial, trade secrets, securities fraud, and bankruptcy litigation.

Clients, opposing counsel, and judges appreciate Josh for his ability to present complex facts and legal concepts in understandable ways. Josh’s skill in this regard enables him to obtain results for his clients at all phases of litigation, from pre-complaint to appeal.

Josh regularly litigates contested proceedings in bankruptcy court. In 2018, he secured a total defense judgment following a bench trial in a $67 million breach of contract adversary proceeding in the U.S. Bankruptcy Court for the Eastern District of Virginia. Over the course of the litigation, which spanned three years, Josh successfully argued multiple motions involving novel issues related to federal and bankruptcy court jurisdiction, examined witnesses in deposition and at trial, and prepared winning court submissions, including the victorious post-trial proposed findings of fact and conclusions of law.

An experienced trial lawyer, Josh recently helped a major national bank favorably resolve a preliminary injunction hearing and obtain partial summary judgment in a breach of contract and tortious interference action in New York’s Commercial Division. He also served as co-trial counsel for a major aircraft manufacturer in a trade secrets action against a former employee in Florida state court, and as co-trial counsel for purchasers of assets from a chapter 11 coal company debtor, who were sued by their proposed financier for breach of a financing commitment letter.

Josh is a member of the New York City Bar’s Commercial Law & Uniform State Laws Committee, which makes recommendations to the New York Legislature regarding the adoption of the Uniform Law Commission’s proposed Uniform Laws. Josh has also been active in synagogue and communal organizational leadership.

 

Danielle Vrabie_FedBarDanielle Vrabie | Sheppard Mullin

Danielle represents corporate clients and individuals in complex commercial litigation and government investigations throughout the country. A substantial portion of Danielle’s practice is dedicated to serving healthcare and life sciences clients, including hospitals and health systems, physician and specialty practice groups, managed care organizations, pharmaceutical companies, long-term care providers, and medical device companies. She has experience representing these clients in a variety of contexts, including commercial disputes and litigation, enforcement actions, and government investigations. She also has significant experience defending against investigations and litigation involving allegations under the False Claims Act, Stark Law, Anti-Kickback Statute, and similar anti-fraud statu tes. In this context, she also assists companies in conducting internal investigations regarding allegations of fraud, employee misconduct, and whistleblower complaints and developing cost-effective and practical compliance and risk management programs.

Danielle helped establish and co-leads the firm’s Women in Healthcare Leadership Collaborative, whose goal is to promote the advancement of women in the healthcare industry by bringing them together in a supportive community and providing them with targeted education focused on complex legal issues, healthcare innovation, and other critical issues.

Danielle’s general litigation practice includes representing clients in the financial services, aerospace, technology, and manufacturing industries in cases involving breach of contract, fraud, trade secrets, non-competition and non-solicitation agreements, trade libel, and allegations of unfair trade practices.

Danielle also maintains an active pro bono practice. She has been recognized for three consecutive years by The Legal Aid Society for her outstanding pro bono service. In 2020, Danielle was honored with the firm’s third annual Bob Williams Award, which recognizes Sheppard Mullin attorneys and staff who provide exceptional service for the betterment of the firm and the community.

 

Bradley Rank_FedBarBradley Rank | Sheppard Mullin

As Assistant General Counsel, Bradley advises the firm’s attorneys on ethical issues involving litigation and is responsible for developing and implementing risk management tools with regard to litigation issues.

Bradley also functions as the managing attorney for the firm’s New York office, and in this capacity he provides procedural advice and assistance to the firm’s attorneys in connection with litigated matters in New York state and federal courts. He acts as a primary point of contact between the firm’s attorneys and the courts, and is heavily involved in the filing of court documents and litigation strategy with respect to any procedural issues. He also is responsible for oversight of the litigation docket and calendar (including calculation and calendaring of all future dates), service of court papers, and other litigation support tasks.

Prior to joining Sheppard Mullin Richter & Hampton, LLP, Bradley spent over ten years litigating commercial disputes in New York State and Federal Courts for a boutique litigation firm. Bradley’s reported cases include such landmark cases as In re AAA Carting and Rubbish Removal, Inc. v. Town of Southeast, 17 N.Y.3d 136 (2011), and Hotel 71 Mezz Lender LLC v. Falor et al., 58 A.D.3d 270 (1st Dept. 2008).

 

Juthamas (Judy) Suwatanapongched_FedbarJuthamas (Judy) Suwatanapongched | Sheppard Mullin

Judy is known and valued as a collaborative, approachable, attentive and detail-oriented litigator. Her clients rely on her clear communication, organization, and management skills to execute their litigation strategies. Judy handles all stages of litigation, from case filing to dispositive motions to mediation, arbitration, trial, and judgment enforcement.

Judy leads teams of associates and legal staff in handling complex discovery, e-discovery, and trial preparation. She is a member of the firm’s E-Discovery Team and Technology Advisory Council.

Judy is an active member of the Asian American Native Hawaiian Pacific Islander (“AANHPI”) community and enjoys utilizing her skills to help the AANHPI community at large. In November 2012, Judy helped found and launch the Thai American Bar Association (“TABA”) and served as its Founding President. TABA is the first organization to support Thai and Thai-American legal professionals in the United States. She currently serves on TABA’s Board. Judy also assisted in the formation of the Thai American Samakkee Coalition (“Samakkee”), a national organization that promotes the unity and interests of Thais and Thai Americans in the United States. She is currently the National Director of Samakkee.

Judy currently serves on the Advisory Board of the Asian Pacific American Bar Association of Los Angeles (“APABA”), where she has served on the Board of Governors since 2007 and was its President in 2015. As former APABA Scholarship Fund Chair for more than 10 years, she coordinated the Law School Fellowship Committee, which awards an annual $5,000 scholarship to a law student who spends a summer working at a Los Angeles County nonprofit organization in a unit that serves the AANHPI community.

In addition to her external leadership roles, Judy is an active member of Sheppard Mullin’s diversity group, the Diversity and Inclusion Attorney Network (“DIAN”). She serves as DIAN’s Office Co-Leader for Los Angeles and a Co-Leader of the Los Angeles Office Working Group.

Agenda

I. Elements of breach of contract and available defenses | 12:00pm – 12:40pm

II. Fraudulent inducement as a defense to a breach-of-contract claim versus as an affirmative tort claim (part I) | 12:40pm – 1:00pm

Break | 1:00pm – 1:10pm

III. Fraudulent inducement as a defense to a breach-of-contract claim versus as an affirmative tort claim (part II) | 1:10pm – 1:30pm

IV. The relationship between special pleading requirements and attorney ethics rules applicable to contract and fraudulent inducement claims | 1:30pm – 2:10pm