Clawback Agreements In Commercial Litigation: Can You Unring A Bell?
Imagine this scenario: Woe Mart, Inc. – a multibillion dollar corporation with hundreds of employees and offices all over the country – has been embroiled in several commercial disputes with its suppliers. Woe Mart’s General Counsel and his team have been trying to negotiate a settlement to avoid litigation for the past couple of months. However, one fine Monday, Woe Mart receives a notice from the suppliers’ lawyers of an imminent lawsuit to be filed in a federal court along with a request to preserve “any and all evidence, including but not limited to electronic evidence.” Woe Mart decides to hire a brilliant and seasoned litigator to defend against this (frivolous!) lawsuit. Naturally, you get the call. You have not spoken to your client at length about the case, and you have not reviewed any documents. However, your brief chat with Woe Mart’s General Counsel tells you that this is a high stakes, multi-party complex commercial litigation. The first thing that you do is to have Woe M
