Outside disputes and inside disputes
Commercial disputes are generally about obligations between a company and outside parties, such as contracts, payments, and business torts. Corporate disputes concern the internal governance of the company itself: fiduciary duties of directors and officers, shareholder rights, votes, books and records, and the value of an ownership interest. Under the internal affairs doctrine, corporate disputes are usually decided under the law of the state where the company was formed, so a Delaware corporation headquartered in New York may still be governed by Delaware law on these questions. Corporate documents may also require that such disputes be brought in a particular court. A single conflict, like a founder who is pushed out and then accused of taking customers, can involve both kinds of claims.
Records that each side will want
In internal disputes, the corporate record carries great weight: board minutes, written consents, the certificate of incorporation or articles of organization, bylaws or operating agreements, and shareholder agreements. Shareholders and members often have statutory rights to inspect certain books and records, and a records demand can be a useful early step. For outside disputes, contracts, invoices, and correspondence take center stage. Officers and directors should check whether the company's indemnification provisions and directors and officers insurance cover them, and whether they need separate counsel. Everyone should preserve emails and messages, including on personal devices used for company business.
Planning commercial and corporate litigation
In a first meeting we sort the dispute into its commercial and corporate pieces and identify the governing law, the forum, and any arbitration or forum clauses. We discuss what you need first, whether access to information, a court order preserving the status quo, or a financial recovery. Where the company itself has a claim against insiders, questions of who controls that claim and whether a derivative suit is needed can arise. We also weigh the effect of litigation on ongoing operations, financing, and employees. That planning helps prevent a case from being brought in the wrong place or under the wrong theory.
