Freeburg Law
Freeburg Law

PO BOX 3442

Commercial Contingent Fee Litigation

You do contingent commercial fee litigation?

Yes. We do commercial contingent fee litigation in Wyoming and Idaho for select cases. We don’t run our business like other attorneys you talk to. Most attorneys, when they represent a business, prefer to be paid on an hourly fee basis. They figure a large business can carry the ongoing monthly bill. But that doesn’t mean the business wants to carry an ongoing monthly bill for an uncertain benefit, or that an ongoing monthly bill is the best use of the owner’s money, time or attention. That’s why we will handle business disputes on a contingent fee basis in select cases. We will also do hourly arrangements upon request. Just like in any contingent fee case, the business does not pay an hourly rate or a flat fee. As the attorney, we cover the cost of our time and take a percentage of the recovery. Sometimes we will ask that the business pays expenses (i.e. deposition costs and expert witness fees) so that we’re not out of pocket on the case. It depends on the circumstances.

Why do we do this?

Generally, we feel that a contingent fee aligns our interests with yours. If we win and you get paid, then we expect to be rewarded for our expertise. If we lose, that’s on us. We’d rather be paid well, or extremely well, when we do a great job, and little or nothing if we don’t live up to our expectations for the case. But you’re a business owner. I’m not going to pretend that we’re doing this out of the goodness of our hearts. We believe that many businesses have substantial viable legal claims that they are not prosecuting. Why? From a business owner’s point of view, there are better things to do than to litigate every claim. Life is short. Time is finite. Even deep resources have limits. If you’re a business owner, then you know that you operate under constraints. You must choose between fighting over a breach of contract or investing in the future of your business. You must choose between focusing your energy and attention on a dispute with a former business partner, or focusing your energy and attention on growing your business. In our experience, most entrepreneurs choose to focus on growing their business. That’s why they’re business owners. Business owners live an optimistic, future-oriented life. You prefer to create new products and services rather than litigate the past deals, even where your former business partners owe you a substantial amount of money. We respect that urge to focus on the future and not live in your disputes. But when you have a good claim, it’s because the other side done you wrong. It’s not fair. And that bothers us. So we also want to offer our services on a contingent fee basis. When you hire us to bring your business claim on a contingent fee basis, we are more responsible for driving the litigation forward. We evaluate the facts. We research the legal claims. And if we think we can win for you, then we take the case. Be advised that you are always the client. And even if your priority is growing your business, instead of litigating your claims against former partners, you still must be involved in the case. Only you, the client, can make certain decisions. Additionally, you or a member of your staff will need to be involved in the discovery portion of the case. You will need to produce documents. There are still depositions to attend. There may be court hearings. You must be committed to seeing the litigation through to the end.

What kinds of Commercial claims?

Most of our contingent fee business litigation cases involve a breach of contract or a breach of an operating agreement. One person promises that they will do something for your business and they don’t. Their failure to perform costs you and your business money. It’s not uncommon for large deals in Wyoming to be done on a handshake. That’s fine. Mostly those are still binding contracts (certain contracts, such as those for the sale of realty, must be done in writing—the statute of frauds is beyond the scope of this article). Typically, in a contract case, the business will recover what it is owed under the contract. A claim may be for specific performance (sell me that one of a kind painting you promised). A claim may also be for lost profits (pay me the money that I would have earned if you had kept your word). A claim may be for a lost opportunity (if you had provided the part I needed on time, I would have had a prototype ready for the competition). There are other claims we encounter in the business world. Wyoming recognizes:
  • Breach of good faith and fair dealing. In a contract, both sides have a duty to treat each other fairly. If your counter-party doesn’t treat you fairly (by not trying hard to do a good job, for example, or interpreting the contract in a self-serving way), then they may have breached their duty of good faith and fair dealing.
  • Tortious interference with a business expectancy. This is an odd one. Imagine your small business has a contract with a large corporation. A third-party knows about your contract with big business and wants it for themselves. The third-party goes to the large corporation and somehow causes them to stop doing business with you. You have a claim against third-party for tortious interference with a business expectancy (among, possibly, some other claims).
  • Warranty claims. Occasionally, a business will have a warranty claim. For example, a supplier is supposed to provide the business with a part. The supplier gives the business a defective part. Damage ensues. You can sue.
  • Fraud claims. What it sounds like. A business partner makes a promise they know is false. You rely on that promise. You do business with them. You lose money as a result.
  • Defamation. Imagine an angry former business partner takes out an advertisement defaming your business to the public contacts one of your suppliers and spread lies about you. It happens. While there are good defamation claims, they typically occur in conjunction with other claims.
  • Theft. Some claims are best characterized as theft. In a civil case, this is called conversion. Say, for example, you have a contract where you’re supposed to provide the other side with a vehicle in exchange for money. You give the other side the vehicle. They don’t give you the money. You might run to law enforcement claim it’s a theft. Depending on which law enforcement agency you go to, you may hear “it’s a civil matter.” Whether or not you or I agree with law enforcement’s decision, you may not be able to get them to prosecute the case. Sometimes, only after you gather evidence through the civil litigation process, do you have sufficient evidence to interest law enforcement in bringing a criminal case.
Perhaps oddly from a business owner’s point of view, I think our experience doing criminal law (as a former prosecutor and as a defense attorney) prepares us to help with certain business disputes. We understand the burden of investigating a claim. We know that people don’t always tell the truth. There are other claims. A business may have claims under federal law, such as anti-trust claims. There are investor-specific claims for both private and public companies. We are not the right fit for those kinds of claims. We may be able to help you assess one of those claims and find the right attorney to prosecute it. We like business owners. Anyone that’s paid an employee on a W-2 has our respect for their contribution to society. While we have been known to be emotional when helping an injured person, we are just as committed to helping a business get justice. *The elk sparring in the photo are next to the Federal Courthouse in Yellowstone.


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