TortMall - Legal Actions for the Tortious or Other Unlawful Destruction of a Business

1st Published: 2/22/00; Last Update: 11/21/07

More and more small businesses are forced out of business, and in many cases there are persons who are liable for such destruction of another's business.

This website discusses the various legal doctrines which should be considered when analyzing whether anyone is or may be liable for the destruction (or partial destruction) of another person's business. In many instances, you will be referred to other parts of the website for relevant material.

  1. The main killer of small businesses is the continuing violation of the Robinson-Patman Act, which prohibits a manufacturer and supplier from selling to competing persons at different prices per unit with very limited applicable defenses; treble damages are awarded against violators; you should review the sister website RPAMall Robinson-Patman Act Website

  2. You can reduce your costs by joining together with other persons in any industry claiming that a common defendant or defendants put them out of business through RPA violations A Plaintiffs' Group Can Be from Different Industries against a Common Chain-Store Retailer

  3. If a defendant has imposed unreasonable restraints on your business, or has been monopolizing a product or service market in a geographic area, or has been part of a boycott of your business, or has been involved with a merger or acquisition tending to monopolize, or has had a concerted refusal to deal with you, or has been fixing prices with a competitor, you may have recourse under the federal Sherman Antitrust Act and/or a comparable state law Sherman.Act Mall - Issues and Answers under the Sherman Act

  4. If your business has not yet filed for bankruptcy, you might want to read the pros and cons on filing for bankruptcy prior to the intended filing of an antitrust action Should a Failing Business Heading for Bankruptcy File an Antitrust Action? - the Pro's and Con's

  5. If you have been defrauded, you could recover fraud-type damages; another related legal doctrine is negligent misrepresentation; the elements of fraud which must be proven are: (i) the representation of a material statement of fact; (ii) the fact is false; (iii) the defendant knew or should have known the fact was false and made it anyway, with "scienter"; (iv) you reasonably relied on the misrepresentation to your detriment; and (v) you were injured as a result.

  6. A supplier may breach its contract with you causing your business to be destroyed or partially destroyed; you might have a remedy of breach of contract, to be able to recover the gross profits you would have had if the defendant had not breached its contract with you.

  7. A supplier or competitor of yours (perhaps through a former partner or employee of yours) could have breached an agreement to hold information in confidence, or could have breached a fiduciary duty in some other way.

  8. A most popular cause of action is for unlawful (intentional) interference in a person's advantageous business relationship, or interference with a contract; or by inducing a person to breach its contract with you.

  9. Tortious destruction of business through improper conduct is another possibility.

  10. State action often is responsible for the destruction or partial destruction of a business and it is sometimes actionable: for example, prior restraint on speech imposed by an overzealous government body may be actionable; local zoning laws created by small communities to exclude unwanted businesses (such as zoning which limits the number of square feet which a giant retailer can devote to grocery sales, as has been enacted to exclude Wal-Mart's new superstores in some communities) would appear to be actionable against the community; liability often occurs when a private interest enlists the support of a government agency or employee to create barriers for the competitors of the private interest and (at least) when such barriers serve no worthwhile purpose other than to exclude competitors; having government agencies prepare requests for bids in which arbitrary requirements are obviously made to prevent competitors of a favored bidder from competing for the business;

  11. one type of action should almost never be alleged, called "prima facie tort", which is a legal theory a plaintiff may have to fall back on when there is no other applicable legal theory on which to hang liability; a defendant's lawyer knows, when such claim is being alleged, that the plaintiff's lawyer doesn't have much faith in any of the other legal theories pleaded, and feels that this may be the only basis for relief; a prima facie tort is defined as intentional oppressive or malicious conduct designed to injure someone in his/her person, property or mind without any economic justification - in other words, tortious conduct which is obviously outrageous and not intended to reap an economic benefit, but instead designed to and which does injure the person against whom the conduct is directed (an example might be blowing up a person's store without such motivation as being a competitor or a named insured on any fire insurance policy or a landlord who wants the tenant to vacate the premises).

  12. Unfair competition by a competitor for your business, using improper techniques (what is improper is often highly debatable).

  13. Violation of various state statutes, such as the New York General Business Law Sections 349-350 prohibiting unlawful advertising; or Section 349 (the New York Donnelley Act), prohibiting what the federal Sherman Antitrust Act prohibits (but not the Robinson-Patman Act); in California, there is a significant counterpart to the RPA.

  14. Also, you should consider copyright infringement, patent infringement, and trademark infringement.

  15. A most important consideration is whether there has been any government involvement, in which case you might have a civil rights claim involving the destruction of your property (this reminds me of the time during the mid-1970's that a NYC agency was collaborating with the utilities and prosecutors to shut off the electricity of companies as a way of putting them out of business without going into court).

  16. Of course, don't forget to consider the torts of libel and slander, and of defamation against the value of property (such as falsely or mistakenly claiming that someone's historical document is forged and therefore of no value).

  17. "Fraudcasting", where a news media misrepresents its intention concerning a story with which you were asked to cooperate, and did a completely different story with your non-consensual participation; allegations in a libel action against various television networks, television newsmagazines, television journalists, magazines, writers, producers and persons participating in the shows may be seen at JFK-Marilyn Monroe Website Containing Two Complaints Alleging Causes of Action for Libel as to Plaintiff Individuals and Defamation as to Plaintiff's Property (remember, these complaints are no more than allegations of improper conduct and should only be read with that warning in mind).

  18. "Negligence per se" is another doctrine for you to consider. A cause of action for negligence pro se is created when, because of violation of a statute designed to protect the public, the plaintiff has been injured.

  19. The remedies to be considered include damages under any one or more of the above legal theories for liability; injunctive relief, both preliminary and permanent, to stop a practice before the practice destroys your business; possibly a request for "declaratory relief" to have the court determine that a specific practice of the defendant is wrong, even if it has not yet injured you; request for an accounting of moneys received by the defendant which belonged to you; request for attorney's fees; request for pre-judgment interest at (usually) 9% simple interest; request for costs; request for appointment of a receiver to take over the defendant's business and preserve the defendant's assets; filing of a petition in bankruptcy against the defendant (be careful about wrongful filing of such petition); and various other remedies (which I will add to this list from time to time).

  20. Farmers may have a remedy for the loss of their farming businesses FARMGATE - How Farmers Can Recover The Value of Their Lost Farms Through the Robinson-Patman Act

  21. Small towns may be able to recover for the damage to their tax base caused by the major chain-stores located in a mall outside of the town, which draws business away from the town due to lower prices, and causes the value of business property and related property taxes to decline Who Can Sue for Unlawful Price Discrimination - Individuals, Corporations, Towns and Other Governmental Bodies

  22. A most important consideration is whether you are permitted to sue for "punitive damages", often called "smart money" (in which the jury may be instructed to bring back a dollar amount which will make the losing defendant's eyes smart or bring tears to the defendant's eyes); outrageous conduct of some type is often required, but the standard varies from state to state; for example, some states permit punitive damages in an action for breach of contract, whereas other states do not; and even in the states which do not allow punitive damages for breach of contract, there are related doctrines relating to tortious destruction in which a breach of contract action can have punitive damages; punitive damages are often the most significant part of a lawsuit, especially where the dollar amount of the actual damages are not easily calculable or proven; in libel suits, for example, the damages are essentially punitive.

  23. If you sue someone, what are the chances of a quick settlement? You should read When Do Defendants Settle RPA Cases, If At All?

  24. What is the cost of a lawsuit? You should see the article on costs relating to RPA litigation, which is also commercial litigation for the destruction (or partial destruction) of another person's business; see Estimated Expenses of a Robinson-Patman Act Price Discrimination Lawsuit

  25. How long does it take to complete a lawsuit? You should see Litigation Stages and Estimated Length of RPA Lawsuit

  26. Website distributors are not entitled to higher discounts than bricks and mortar distributors of the same product It is ILLEGAL under the RPA for Manufacturers and Suppliers to Give Higher Discounts, Rebates and Allowances to Companies Which Sell Their Products through WEBSITES

  27. Here is an article which might help you decide whether you should sue; Pro's and Con's in Deciding Whether or Not to Sue

  28. Here is a checklist of the different types of antitrust claims you should consider; see Checklist of Antitrust Claims

  29. You should read the article on selecting an attorney for your lawsuit; see Selecting an Attorney to Start an RPA Lawsuit

  30. Expert witnesses are very useful in proving damages, and often useful in proving liability; see Expert Witnesses in Price Discrimination Actions

  31. As a new plaintiff, you should rapidly become acquainted with some basic rules about holding onto documents for the lawsuit; see Instructions to New RPA Plaintiffs

  32. Here is a list of the industries which have been quite seriously injured by violation of the RPA; see Industries Seriously Injured by "Big Box" and "Category Killer" Superstores

  33. Carl Person is an attorney with substantial experience in the different legal theories for holding someone liable for the destruction of a business; see Resume of RPA Attorney Carl Person

  34. If you have any questions about your own problem, please don't hesitate to write to, call or fax attorney Carl Person, see E-Mail/Fax/Telephone Inquiries to Attorney Carl Person; his telephone number is 212-307-4444; and his fax number is 212-307-0247

  35. Here is an article on discovery in a commercial lawsuit; Discovery in a RPA Price Discrimination Action

  36. Pleadings are most important, and you should look at the pleadings checklist, by jumping to RPA Pleadings Checklist and The 10 Most Significant RPA Issues for You to Consider

  37. The attorney you hire does not have to live in your city or state, see If RPA Attorney and Client Live in Different States

  38. This article explains why major corporations are willing to violate the RPA; Why Most Large Retailers, Wholesalers and Manufacturers Are Violating the RPA and Discriminating against Small Retailers

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30-Minute Infomercial on the Robinson-Patman Act

Attorney Carl E. Person, the editor/author of this Robinson-Patman Act website has been airing a 29-minute ("half-hour") infomercial on various radio stations. For members of the audience who were unable to hear the whole show, or wanted to listen to it again, and for attorneys anywhere in the United States who may wish to become the "case partner" of attorney Carl E. Person (and jointly run the commercial locally), the infomercial may be read and/or downloaded at 29-Minute Radio Infomercial of Carl E. Person entitled "ONE MILLION FORTUNES LOOKING FOR THEIR RIGHTFUL OWNERS".

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Copyright 1997-2000 by Carl E. Person