| Lawrence Kamin’s Aggressive Legal Strategy Positions Case for Favorable Settlement Principal Attorneys John Monical John Mahoney Situation For several years, a website owned by a nonprofit corporation (“Owner”), was developed, supported and modified by a software development and data provider (“Vendor”). Under the contract, the Owner’s software ran on a proprietary architecture platform owned by the Vendor. The Owner was to pay for any upgrades to the software, but the Vendor was to pay for any upgrades to the architecture. Under the contract, the Owner paid a deposit to the Vendor for services to be performed during each contract year, but the Vendor was to apply that deposit only to work approved by the Owner. Over the course of two years, the Vendor made substantial upgrades to the interface between the software and the architecture. The Owner did not receive or approve written proposals for this work and believed the work was an upgrade to the architecture. The Vendor, arguing that the upgrade was to the Owner’s software and that the Owner knew and orally approved the proposal throughout the progress of the work, applied the entire deposit toward the upgrade. Challenge The Owner had tried diligently to discuss settlement with the Vendor, but the Vendor repeatedly refused to engage in settlement discussions. Unfortunately, the upgrade consisted of dozens of modifications affecting multiple complex interactions between the software and architecture. The case involved a substantial amount of money, but the cost of litigating the complex engineering issues through trial would have surpassed the value of the case. Solution Lawrence Kamin proposed a “shock and awe” strategy – a full offensive attack. We swiftly prepared the complaint and chose the Owner’s home state as the litigation forum. We aggressively moved into motion practice and expedited discovery. We contacted opposing counsel daily, showing relentless attention to the case. The strategy was to force the Vendor to evaluate the cost of litigation by convincing it that the Owner would go through expensive, “scorched earth” litigation. Outcome Within weeks of applying the strategy, the Vendor offered to settle at near the entire amount in controversy. Lessons Applied Litigation strategies should be customized to the specific case. In this case, the best way to reduce the long-term litigation costs was to increase the short-term costs. |
