Business and Commercial Litigation in Federal Courts, Fifth Edition (Robert L. Haig, Editor-in-Chief) | Book Review

Robert Haig’s “Business and Commercial Litigation in Federal Courts” compendium is an indispensable resource for attorneys engaged in federal civil litigation.  Mr. Haig’s series features guidance from leading practitioners regarding a multitude of both procedural and substantive issues faced by federal court practitioners.  The Fifth Edition in this series includes 26 new chapters covering a variety of current topics of relevance, including Virtual Currencies, Valuation of a Business, and Third-Party Litigation Funding.

Chapter 111 provides a timely resource with respect to virtual currencies and the related regulatory and litigation considerations surrounding this emerging area.  The chapter includes practical advice focused on the unique and often complex issues practitioners face when dealing with matters involving these technologies.  Following an overview of virtual currencies and blockchain technologies, the chapter provides an extensive overview of the regulation of U.S. virtual currencies, addressing potential applicability of U.S. Securities Law to digital assets and blockchain technology.  It goes on to address enforcement mechanisms potentially at play with respect to virtual currency and summarizes the state of related criminal prosecutions.  The chapter also includes an extensive discussion of civil litigation in the virtual currency space, providing synopses of several cases that have reached litigation in the recent years.  There is a helpful section on commonly asserted defenses in lawsuits relating to virtual currencies, discussing common law, jurisdictional, statutory, and contractual defenses for consideration by practitioners as well as a section discussing the unique discovery challenges and issues that can arise in these matters.  The chapter concludes with two helpful practice aids: a checklist of essential allegations and defenses and a checklist of sources of relevant proof to support the same.

Another especially useful chapter added to the Fifth Edition of this series is Chapter 100, which addresses business valuation.  Following a brief introduction, the chapter opens with a detailed discussion of preliminary points of consideration and strategic objectives involved when asking a factfinder to ascribe a value to a corporate entity or corporate ownership interests.  Given that this is an area in which the use of expert testimony plays a significant role, the chapter includes helpful discussions concerning selection of a well-qualified expert, working with a litigant’s own expert, and strategy development for attacking the opponent’s expert.  Sections V and VI of Chapter 100 provide a detailed description of various valuation issues, including the various available valuation methods, and considerations to keep in mind in conferring with an expert over the selection of a valuation method in the circumstances of a particular case.  The end of the chapter includes a section on practice aids, including a comprehensive table comparing various valuation methodologies and a sample outline of an expert report for a valuation expert.

Finally, Chapter 78 stands out as a practical and useful resource on the topic of third-party litigation funding.  It includes an extensive discourse on the various types of funding available, factors for consideration in the search for funders, and key components of funding agreements.   Of critical importance, sections VI through VIII provide a history of the evolution of litigation funding and examine ethical and practical considerations an attorney must consider if that attorney’s client has elected to work with a third-party funder.  These sections cover a broad range of considerations, including potential privilege and work product issues, strategic decisions, disputes, legal challenges to such arrangements, and disclosure obligations.  Finally, the chapter includes three useful practice aids.  The first is a checklist of considerations for working with a litigation funder, the second is a sample term sheet, and the third is a sample funding agreement.

The Haig compendium on Business and Commercial Litigation in Federal Courts was first published in 1998.  It continues to be a trusted, valuable, and excellent resource for both new and more experienced litigators practicing civil litigation in the federal court system.  With the extensive new ground covered in this Fifth Edition, this reference should be a staple of every litigation law library.

Erika N.D. Stanat is a partner and the Practice Group Leader of the Commercial and Intellectual Property Litigation Group at Harter Secrest & Emery LLP. She can be reached at [email protected].