Commercial Litigation

What are the two primary elements required to prove monopoly under Section 2 of the Sherman Act?

(1) possession of monopoly power in the relevant market

(2) willful acquisition/maintenance of that power

Under the Sherman Act, what specific conduct does Section 1 outlaw?

All contracts, combinations, and conspiracies that unreasonably restrain interstate trade

What are the 3 elements necessary to prove an attempt to monopolize under the Sherman Act?

(1) specific intent to control prices/eliminate competition

(2) predatory/anticompetitive conduct

(3) a dangerous probability of success

What is procedural unconscionability focused on in the context of arbitration agreements?

the facts surrounding the bargaining process and whether there was a reasonable opportunity to discover the clause

What is substantive unconscionability focused on regarding arbitration terms?

the fairness of the resulting agreement

Under Texas la, what interest is protected by a claim for business disparagement compared to defamation?

Business disparagement protects economic interests

Defamation protects an individual's reputation

List the 5 elements of a business disparagement claim in Texas

(1) published disparaging words about economic interests

(2) falsity

(3) malice

(4) lack of privilege

(5) causing special damages

What is a tying arrangement?

an agreement to sell one product only on the condition that the buyer also purchases a different, tied product

What is market power?

The power to force a purchaser to do something they would not do in a competitive market

Under Section 2 of the Sherman Act, what is the minimum market share typically required to suggest a monopoly exists?

2/3 of a market

In a business disparagement case, when does a defendant act with malice?

When they know the statement is false, act with reckless disregard for the truth, act with ill will, or intend to interfere with economic interests

In the context of contorts, if a defendant's conduct would give rise to liability only because it breaches an agreement, the action is based on solely _____ law.

contract

What is the economic loss rule (Jim Walter Homes, Inc. v. Reed)?

when the injury is only the economic loss to the subject of a contract itself, the action is based on contract law alone

Under Scharrenbeck, what common-law duty accompanies every contract?

the duty to perform with care, skill, reasonable expedience, and faithfulness

List three special relationships that may give rise to tort duties independent of a contract

attorney/client

doctor/patient

insurer/insured

What is the asset threshold for a business to be excluded from the definition of a consumer under the Texas DTPA?

assets of $25 million or more

Does a plaintiff need to prove privity with a defendant to maintain a DTPA action?

no, as long as the plaintiff qualifies as a consumer of goods or services

What are the four categories of covered acts under DTPA Section 17.50?

(1) laundry list violations

(2) breach of warranty

(3) unconscionable actions

(4) insurance code violations

Should the DTPA be construed narrowly or liberally according to Woods v. Littleton?

liberally to promote its underlying purposes of protecting consumers

Under FRCP(b)(1), what two requirements must be met for information to be discoverable?

nonprivileged and relevant to any party's claim/defense

proportional to the needs of the case

What four factors are used to determine the proportionality of a discovery request?

(1) importance of the issues

(2) amount in controversy

(3) parties' resources

(4) whether the burden outweighs the benefit

Under FRCP 26(a)(1), what are initial disclosures?

mandatory exchanges of information including witness identities, document descriptions, damage computations, and insurance policies

What is the standard limit for the number of interrogatories a party may serve on another under FRCP 33?

25

Under FRCP 26(b)(5)(A), what is a privilege log?

a document describing withheld items to enable other parties to assess the claim of privilege without revealing the privileged information

In e-discovery, what is the purpose of a clawback agreement?

to ensure accidental production doesn't constitute waiver

Under Zubulake, what are the two most important marginal utility factors for discovery cost-shifting?

(1) how specifically tailored the request is to discover relevant info

(2) the availability of that info from other sources

What is the third group/6th factor of cost-shifting factors in the Zubulake test?

the importance of the issues at stake in the litigation

What are the 6 elements of simple fraud (fraudulent misrepresentation) in Texas?

(1) false representation

(2) materiality

(3) knowledge/recklessness

(4) intent to induce action

(5) actual reliance

(6) damages

In a fraud case, when is a false representation considered material?

if a reasonable person would attach importance to and be induced to act on the information

When does a defendant have a duty to disclose in a fraud by nondisclosure case?

when a fiduciary relationship exists, or

new info makes a prior statement untrue, or

a partial disclosure creates a false impression

What are the formal fiduciaries recognized in Texas?

partners

corporate officers/directors

attorneys

trustees/executors

employees

agents

spouses

What is the SoL for civil fraud in Texas?

4 years

What are the 3 elements of promissory estoppel?

(1) clear and definite promise

(2) reasonable and foreseeable reliance

(3) injury sustained from that reliance

How do damages for promissory estoppel differ from breach of contract damages?

Promissory estoppel recovers the amount to restore the plaintiff to pre-reliance position

Breach of contract damages are for expectation (profit) damages

Can a plaintiff recovery on a theory of promissory estoppel if an express contract exists between the parties?

No, it is only available in the absence of an express contract between the parties

What is the sine qua non (essential condition) of a quantum meruit claim?

unjust enrichment

What are the 3 elements for a quantum meruit claim in Texas?

(1) provided valuable services/materials

(2) defendant accepted them

(3) defendant had reasonable notice that compensation was expected

What is the measure of damages in successful quantum meruit action?

the reasonable value of the services and materials provided

What is the difference between tortious interference with contract and tortious interference with prospective business relations?

TI with contract involves an existing agreement

TI with prospective involves a non-contractual business relationship

What are the four elements of tortious interference with contract?

(1) valid contract

(2) willful/intentional interference

(3) lack of justification/privilege

(4) damages

To prevail on a claim for tortious interference with prospective business relations, what must the plaintiff prove about the defendant's conduct?

that the defendant's conduct was independently tortious or unlawful

Does "lawful competition" justify inducing a third party to breach an existing contract?

No, competition does not provide a privilege to interfere with an existing contract

Under the Texas Uniform Trade Secret Act (TUTSA), what two conditions must info meet to be a trade secret?

(1) derives independent economic value from not being known

(2) subject to reasonable efforts to maintain secrecy

What are three improper means of acquiring a trade secret under TUTSA?

theft, bribery, and breach of a duty to maintain secrecy

What is reverse engineering in the context of trade secret law?

the process of studying or disassembling a lawfully acquired product to discover its design or structure

Is negative know-how protected under TUTSA?

Yes, research about what will not work is protected

What is the statute of limitations for trade secret misappropriation claim in Texas?

3 years

What is the primary test for trademark infringement under the Lanham Act?

likelihood of confusion

What is the difference between blurring and tarnishment dilution?

blurring decreases a mark's uniqueness

tarnishment links a mark to unsavory/shoddy contexts

What is trade dress?

the total image, design, and appearance of a product

What are the three requirements for a trade dress infringement claim?

(1) the dress is nonfunctional

(2) it is distinct or has secondary meaning

(3) likelihood of confusion

What is fair use?

when a descriptive mark is used in good faith for its primary meaning and no consumer confusion results

Under AAA Commercial Rules, whose responsibility is it to ensure conditions precedent to filing are met?

the filing party

Under the Sherman Act, what kind of conduct is per se illegal?

that which is highly likely or certain to affect commerce

In a sworn account action in Texas, what effect does the plaintiff's verified petition have?

it's taken as prima facie evidence of the claim, requiring the defendant to file a sworn denial or lose the case

What is the marginal utility test in discovery?

the more likely a source contains relevant info, the fairer it is for the responding party to search at its own expense

What is genericide?

when a trademark becomes the common name for a category of products and therefore loses its protection (e.g. escalator)

What is the "Rule of Reason" under Section 1 of the Sherman Act?

It is the standard applied to conduct that might restrain trade but isn't "per se" illegal.

It requires an exhaustive, case-by-case economic analysis to determine if the competitive effect is actually unreasonable

What 4 specific types of conduct are limited by the Clayton Act?

price discrimination, exclusive dealing and tying, mergers and acquisitions, serving as director of competing corporations

Under Texas law, which statutes are analogous to the Sherman Act and the FTC Act?

Texas Free Enterprise and Antitrust Act of 1983

Texas Deceptive Trade Practices Act

What are the exclusive grounds for judicially vacating an arbitration award under the FAA?

the award was procured by corruption or fraud

evident partiality/corruption among arbitrators

refusal to postpone a hearing or hear pertinent evidence

arbitrators exceeded their powers

How does Texas define "disparaging words" in a business context?

Words that cast doubt on the existence, quality, or ownership of a plaintiff's land, chattels, or intangible things.

What is the difference between absolute and qualified privilege?

absolute: motives are irrelevant; functions like total immunity (e.g., judicial or legislative proceedings).

qualified: motives matter; protected so long as the report is true, fair, and impartial

When are "Professional Services" exempt from the DTPA?

When the essence of the service is advice, judgment, opinion, or professional skill. (e.g. real estate appraiser)

What is the notice requirement before filing a DTPA suit?

A consumer must provide 60 days' notice of the suit and make a demand

How does knowledge vs. intent affect DTPA damages?

knowing: allows for mental anguish damages and up to 3x economic damages

intentional: Allows for 3x the sum of both economic AND mental anguish damages

What is the difference between system and application metadata?

System: data about the file itself, such as when it was created, accessed, or modified.

Application: "Secret" data inside the document, such as past versions, track changes, or hidden formulas

What must be included in a Motion to Compel (Rule 37(a))?

A certification that the movant has in good faith conferred or attempted to confer with the person failing to make discovery

What are the time and number limits for oral depositions under Rule 30?

10 depositions per side (unless otherwise agreed/ordered)

One day of 7 hours per witness

What are the only three objections allowed in a Texas state court deposition?

leading, form, and non-responsive

When is an expression of opinion actionable as fraud?

When the defendant knows the opinion is false, when it is buttressed by false statements of fact, or when the defendant has "special knowledge" that bolsters the opinion.

What specific type of damages is required to recover for business disparagement in Texas?

special damages

What are special damages?

realized or liquidated pecuniary losses, such as the loss of a specific sale of business

How is unconscionability defined under the DTPA?

an act that takes advantage of a consumer's lack of knowledge/ability/experience to a grossly unfair degree

Under the DTPA, what condition allows a plaintiff to recover mental anguish damages?

the defendant's conduct must have been committed knowingly

To satisfy the reliance element in a fraud claim, the plaintiff's reliance must be both ____ and ____

actual (subjective) and justifiable (objective)

What 4 elements are required to establish fraud by non-disclosure in Texas?

(1) failure to disclose facts despite duty

(2) defendant's knowledge of plaintiff's ignorance

(3) intent to induce action

(4) reliance

Why is quantum meruit considered a quasi-contract issue?

it is an equitable remedy used to prevent unjust enrichment when no express contract exists between the parties

What 4 elements must be shown to establish tortious interference with prospective business relations?

(1) a reasonable probability of a business relationship

(2) intentional interference

(3) independently tortious/unlawful conduct

(4) damages

Name 4 factors courts consider when determining likelihood of confusion?

strength of the senior mark

similarity of the marks

relatedness of the goods

evidence of actual confusion

marketing/advertising channels

intent

likelihood of expansion

sophistication of the consumer

What are the three required contents of a demand for arbitration?

(1) name/addresses of parties

(2) statement of the nature of claim/relief sought

(3) requested locale

In a business disparagement claim, what is the "of and concerning" requirement?

a reasonable person must understand that the statement refers specifically to the plaintiff's economic interests

What is the two-part test to determine if a trademark is disparaging?

the likely meaning of the mark

whether that meaning disparages a substantial composite of the referenced group

When can a case be removed to the Texas Business Court?

within 30 days from the time Business Court jurisdiction was or should have been clear

What constitutes publication in a business disparagement claim?

communication of the statement to at least one person other than the plaintiff

What is the difference between simple fraud and fraud by nondisclosure regarding the defendant's action?

simple fraud involves an affirmative false representation

nondisclosure involves concealment of material facts

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