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It is no secret that plaintiffs and their attorneys often have more to gain by resolving a case sooner rather than later. Resolution of a claim early in litigation (or even pre-suit) benefits a plaintiff by putting money in his or her pocket earlier and cuts down on the amount of fees a plaintiff must reimburse his or her attorneys. Likewise, for the attorney, who is most often working on a contingency fee, an early settlement provides a certainty of recovery and frees up time to work on other matters. Certainly, there are situations in which an early resolution is not possible (i.e., a lack of a meaningful pre-suit settlement offer). Assuming there is a legitimate offer on the table, however, the net benefit of protracted litigation only to obtain a slightly better settlement or judgment may not be worth the risk.

While not as obvious on the surface, there is often little for defendants to gain by way of lengthy litigation. Any seasoned defense attorney can tell tales of cases that were ultimately resolved after lengthy litigation for a sum far greater than what they could have pre-suit. Those cases are usually ones in which the defendant was operating with its optimal leverage pre-suit (due to a preliminary understanding of liability and/or damages) only to see the price of playing poker rise as discovery called into question the facts or theories upon which the defendant relied. Similarly, there are those cases that ultimately resolve at the pre-suit evaluation, but only after thousands of dollars in fees were incurred. In either situation, the net benefit of litigation, at least from a financial perspective, may be negligible.

Certainly, there are cases for both plaintiffs and defendants that should be tried for a variety of reasons. Unlike Sun Tzu, we would not venture so far as saying that there are “no” instances of a party benefiting from “prolonged warfare.” In those cases, however, it is imperative that counsel and their clients be on the same page regarding the costs of “war” and the risks of battle. Inherent in every case is risk. There is not a good case that cannot be lost (or, conversely, a bad case that cannot be won). Litigators should never be fearful of prolonged litigation, including trial. However, they should always be cognizant of the risks and costs of protracted litigation when searching for that necessary “victory.”

Note: An online translation of can be accessed .

Part I of The Art of “Litigation” War can be accessed .

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Sunday, September 10, 2017

Our Charleston, South Carolina office will be closed on Monday, September 11, 2017 due to inclement weather caused by Hurricane Irma. Our Charlotte, North Carolina office and our Greenville and Columbia, South Carolina offices will be open as usual. We wish everyone a safe journey during these days of difficult weather conditions.

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Tuesday, September 5, 2017

Once again, we turn to the world of music for news of curious litigation. For those unfamiliar with the Fyre Festival, the following is a synopsis :

The Fyre Festival website explains its origins as follows:

Reportedly , festival tickets cost $450 for a day pass and up to a $250,000.00 for a full VIP experience. Unfortunately, its organizers canceled the festival at the last minute, and hundreds of attendees allege that they were stranded on the remote island with sparse food and dangerously rustic accommodations. That sounds a bit more perilous than Woodstock, no?

Litigation, of course, ensued.

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filed a class action lawsuit in the U.S. District Court for the Central District of California. The named Plaintiff, Daniel Jung, alleges as follows:

Additionally, the suit alleges that the problems were known before the information was disclosed to prospective attendees, but that the information was not disclosed in a timely manner:

It is anticipated that there will be at least 150 members of the class. The lawsuit seeks at least $100 million in damages. Presumably, the lawsuit will be hotly contested, but Fyre Festival organizers are promising that“[a]ll festival goers this year will be refunded in full” and that they “will be working on refunds over the next few days and will be in touch directly with guests with more details.” Aggrieved guests may be pleased to find out that “all guests from this year will have free VIP passes to next year’s festival.” Who knows how that turned out?

On May 7, the Plaintiff amended the Complaint, and no defendant has answered. In fact, it appears that there may be some issues with serving them.

The case is , 2:17-cv-03245-ODW-JC, U.S. District Court for the Central District of California (Western Division – Los Angeles).

We atare skeptical that a jury would be excited about awarding money to a 20-30 year old who has $250,000.00 lying around for VIP tickets to an island music festival, but maybe we are wrong. This could be the case of the century arising out of what could have been the music festival of the century.

The music event (from April 28–30 and May 5–7) is touting itself as “the cultural experience of the decade.” Though these islands are part of the Bahamas, this scattered string of pearls is way more barefoot and bronzed than cruise ships and coconut cocktails.

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