Business Litigation | Fennemore Craig | Business Arbitration

Business Litigation

Our business litigation attorneys are proficient in alternative dispute resolution techniques, negotiated settlements, appeals and traditional trial representation, as well as advice on the prevention of claims and avoidance of litigation. A number of our attorneys also serve as mediators, arbitrators and private judges.

We are at the forefront of implementing technology for the benefit of our clients, saving them money and helping us deliver more effective and efficient legal services. In the litigation setting, technology helps us save days of trial time for our clients. Our use of TrialDirector®, CaseMap® and MindMap® software help us quickly manage substantial numbers of exhibits and photos when conducting examinations and delivering closing arguments.

Our business litigation attorneys have the capability to set up technology-rich arbitrations both in-house and at external sites that help visually drive home key points in arguments.

Good Counsel

Antitrust Law and Trade Regulation

We represent individuals, business entities and professionals in litigation alleging unlawful restraints of trade, price-fixing conspiracies and a variety of other federal and state antitrust law violations. We recently participated in major antitrust actions involving the cable television, consumer electronics and petrochemical industries. Our business litigation attorneys assist many clients in connection with mergers and acquisitions covered by the Hart-Scott-Rodino Act of 1976, and we advise clients on antitrust and trade regulation issues affecting business conduct and transactions.


Our appellate attorneys regularly appear before the U.S. Courts of Appeals for the Ninth Circuit, Tenth Circuit and the U.S. Tax Court; the Supreme Court and Court of Appeals of Arizona; the Supreme Court and Court of Appeals of Nevada; and the Supreme Court and Court of Appeals of Colorado. We also participate in appeals before the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit, Fourth Circuit, Fifth Circuit, Eighth Circuit and Eleventh Circuit.

Our appellate legal services cover civil, administrative and regulatory law, with emphasis in the following areas:

  • Constitutional and Public Law - challenges to the validity under the United States and state constitutions of statutes and ordinances, state, local and municipal regulations and other government actions.
  • Bankruptcy Law and Creditors' Rights - appeals to the U.S. District Court and the Ninth Circuit Bankruptcy Appellate Panel.
  • Eminent Domain Law - appeals to district and higher courts in connection with direct condemnations, inverse condemnations, regulatory takings, and claims for pre-condemnation damages in the context of public projects, including pipelines, high voltage transmission lines, roads and freeways, buildings and redevelopment projects.
  • Tax Law - challenges to state and local ad valorem real property taxation, state and local sales, use and income taxation and federal income taxation.
  • Real Property Law - actions to enforce mortgages, deeds of trust and restrictive covenants; and suits concerning title to minerals on private and public land.
  • Natural Resources, Environmental and Water Law - challenges to the U.S. Environmental Protection Agency's adoption of rules and orders, and appeals from orders of the Arizona Department of Water Resources and Arizona Department of Environmental Quality.
  • Public Utility Law - appeals from orders of the public utility commissions of Arizona and Nevada setting rates for and governing provision of service by public utilities; and appeals arising from suits and administrative proceedings involving the competing rights of corporations, governmental bodies and other entities to provide utility service.
  • Tort Law - appeals in cases involving product liability claims, medical negligence claims and business torts, such as antitrust, lender liability and insurance coverage claims.
  • Commercial Litigation - appeals arising from claims of violations of securities laws, laws governing trade secrets and unfair competition, as well as disputes arising from every aspect of corporate and business transactions.
  • Labor and Employment - appeals primarily on behalf of employers from orders of the National Labor Relations Board and in cases involving breach of contract, wrongful discharge and discrimination claims.

One of our appellate attorneys formerly served as a judge on the Arizona Court of Appeals and previously was solicitor general, chief counsel of the tax section, and chair of the Arizona attorney general's open meeting law enforcement team. The practice chair, Tim Berg, is past president of the American Academy of Appellate Lawyers. Our attorneys have served and currently serve on the appellate handbook committee of the State Bar of Arizona and are responsible for the chapters of the handbook relating to attorneys' fees on appeal. We also serve on the advisory committee of Division One of the Arizona Court of Appeals.

Aviation Law

Our aviation and aerospace attorneys are highly experienced in aviation law, driverless car regulations and aerospace engineering legal needs.

Our attorneys have diverse legal knowledge and experience in the areas of airport and airline representation, government affairs, administrative laws, insurance, intellectual property, real estate, corporate governance and finance, and federal and state regulation and contracting.

We represent many segments of the aviation industry, including air carriers, airport and aviation related matters, airline use and lease agreements, public purchasing, public works, and federal law relating to airport issues. Our attorneys have also worked with the Federal Aviation Administration (FAA) and the U.S. Department of Transportation (DOT) and assist clients with federal aviation regulations and laws.

In addition, our intellectual property group has specific technical experience in the fields of aerospace engineering, autonomous vehicle and control system design, geospatial positioning systems, and wireless communications technologies.

Our aviation attorneys also have experience with international trade associations including membership on the Legal Steering Committee of Airports Council International.

With related academic credentials, such as a degree in aerospace engineering, the insights we derive from our diverse practice enable us to achieve our clients' goals more efficiently and effectively.

Commercial Contingency Litigation

For us, shared risk equals shared success: The true meaning of synergy.

One vehicle for continued innovation is handling litigation matters on a contingency fee. In plain English, we’ll have “skin in the game,” and while you are investing in us, we’ll be investing in you. As opposed to the standard hourly billing that lawyers are known for, with contingent fee arrangements, we share the outcome risk. This entrepreneurial arrangement creates great synergy and our arrangements remain completely confidential.

Traditional hourly billing may, in some instances, result in budgetary constraints that impair a client’s ability to aggressively pursue what would otherwise be a meritorious commercial claim or cause for business litigation. For example, a business may be pursuing a cause of action for breach of contract, breach of fiduciary duty, fraud, misrepresentation, usurping a corporate opportunity, shareholder or partnership disputes, securities fraud, collection of judgments, among others. When faced with the significant expense litigation often imposes, particularly in complex commercial cases, some businesses are forced to settle for unfair, nominal amounts or abandon their claims altogether.

Recognizing this, we offer the flexibility of contingency fee arrangements in a business litigation setting. When specified criteria have been met, qualified clients may opt for contingency fee representation or a hybrid option in which a contingency fee is combined with a lower hourly rate. The fees for the risk of recovery in the litigation are borne by us. While the client may have to be responsible for or advance costs or experts fees during the litigation, we absorb the risk of recovery of the fees. If there is no recovery, then we are not owed any attorney’s fees by the client.

Construction Disputes and Defects

Our real estate litigators have been involved in construction defect litigation for many years, representing developers, contractors and design professionals in all forms of construction defect litigation. Our construction litigation clients have included not only these entities, but their insurance carriers on litigation that has included defective design, defective construction, mold remediation and economic loss theories.

Our real estate litigation attorneys have considerable experience in federal and state actions, as well as administrative proceedings before the Arizona Registrar of Contractors and the Arizona Department of Real Estate. In addition, we are at the forefront in efforts to legislatively limit the extent of the exposure for construction defect litigation in Arizona.

E-Discovery and Data Management

For more than a decade, we have helped clients develop proactive and efficient solutions to address increasing demands for the preservation, management and production of electronically stored information (ESI).

Our E-Discovery and Data Management practice bridges the gap that often exists between technology and the law by formulating solutions that are tailored to the individual needs of each case. In doing so, the goal is to contain risk, minimize cost and facilitate the overall legal strategy.

This evolving practice focuses on assisting clients with both pre- and post- litigation planning. Pre-litigation planning includes items such as document and records retention policies, litigation hold policies, and the creation of in-house e-discovery teams. Post-litigation planning involves the development, implementation and management of a strategy for collecting, reviewing and producing ESI through the discovery phase. These policies and protocols adhere to principles of reasonableness and proportionality, taking into account factors such as the cost, burden and technical feasibilities involved in each case.

With our team of attorneys, paralegals and IT and litigation support professionals, our E-Discovery and Data Management practice offers significant experience handling high volume discovery for complex litigation matters in state and federal courts throughout the country. Through this experience, our team has developed tested methods for streamlining e-discovery processes, including management of the process in-house whenever possible and the use of cutting edge technology to assist with document review and case analysis. This technology includes Relativity®, CaseMap®, TimeMap®, and others. Relativity® is an e-Discovery and early case assessment (ECA) tool that enables attorneys and paralegals to quickly and efficiently assess, review and manage “native” data collections, resulting in accelerated early case analysis, increased defensibility of the e-discovery process and at a significant cost savings for clients. Our e-discovery attorneys are skilled in designing and implementing processes that take advantage of the most appropriate, efficient and cost-effective technologies that will best serve our clients.

Our e-discovery attorneys are at the forefront of this emerging area of law and actively contribute to its development, whether through involvement in leading industry groups, speaking engagements and conferences, or publications on topics related to e-discovery. We also work closely with clients to keep them apprised of new developments in e-discovery through e-newsletters, firm sponsored events, presentations and in-house training.

Environmental Law and Natural Resources

Our environmental attorneys provide a significant amount of environmental counseling and representation to the manufacturing, mining, forestry, high technology, petroleum, banking, and other industries. We have represented clients before the air pollution control hearing boards, the Water Quality Control Counsel, administrative law judges at the Department of Environmental Quality, and in federal and state courts. Recent cases and legal activity include environmental and toxic torts, environmental policy suits, regulatory challenges, cost recovery actions, property devaluation and natural resource torts, complex water cases, general adjudication of water rights, mining title disputes, flood cases, and environmental compliance actions.

Our water rights attorneys recently obtained a court order requiring the Department of Environmental Quality to delist a client from the Section 304(1) listing under the Clean Water Act. We have been involved with all of Arizona's groundwater protection initiatives, which culminated in 1986 with the passage of the Arizona Environmental Quality Act. Members of the firm have served as special counsel to the state in Arizona v. California and other water law cases of statewide interest. Our environmental attorneys serve on legislative drafting committees, advisory committees to agencies and on various ad hoc committees which affect and direct the legislative and regulatory process in Arizona.

Financial Restructuring

We have a prominent and active bankruptcy practice. Our bankruptcy attorneys represent a diverse group of clients, including secured and unsecured creditors; financial institutions; debtors; and trustees and purchasers of financially distressed businesses, in Chapter 11 cases, debt restructuring, liquidation cases, out-of-court workouts, and other insolvency proceedings. Our business litigators focus extensively on creditor representation, and together with attorneys from other disciplines in the firm, the group is active in planning and negotiating complex workouts and restructures.

Government Procurement and Contracts

Our business litigation attorneys have broad experience in federal and state procurement law and government contract disputes. Our attorneys have litigated bid protests before the Comptroller General of the General Accountability Office and various state agencies. We have also represented government contractors against city, county, state and federal governments and have prosecuted claims against numerous federal agencies before the various Boards of Contract Appeals and the Claims Court.

Intellectual Property

Our intellectual property attorneys are involved in significant intellectual property litigation, including patent and copyright infringement, trade secrecy, software licenses, trade dress and trademark infringement, nondisclosure agreements, computer performance, and covenants not to compete. Client intellectual property rights are enforced through alternative dispute resolution techniques, demand letters, preliminary injunctions, and traditional trial and appellate representation.


We assist businesses with international commercial transactions, including business formations, acquisitions and sales; joint ventures; and international resources transactions.

Our international business attorneys provide a unique cross-border trade practice with Mexico out of our Nogales office that easily handles many large agribusiness transactions for substantial Mexican growers with distributorships in the Southwest and, in addition, transactions involving major U.S. manufacturers with operations in Mexico, including under the Mexican maquila program. We assist motor carriers owned by non-residents in establishing both federal and state operating authority for transportation of passengers in the United States and also assist in obtaining operating authority for transportation of international packages under the Mexican Truck Pilot Program. Our international business attorneys also provide counsel on international intellectual property, as well as trade and tax law, including transfer pricing to facilitate the import and export of goods and international transportation issues. In addition, our business attorneys represent both domestic and international companies on the work authorization issues of foreign national employees.

Intellectual Property

Our intellectual property attorneys counsel clients on internet and e-commerce issues; protection and licensing of patents, copyrights, trademarks, and trade secrets; and branding strategies in an international setting. Clients include a range of domestic and international businesses from internet startups to large multi-nationals, in industries ranging from computer software and hardware to pharmaceuticals, toys, games, optics, electronics and agriculture.

International Trade and Tax

Our business attorneys have substantial experience in international trade and tax issues and international tax treaties. Our Nogales, Arizona office works with a large number of companies on both sides of the border in support of trade, including under the North American Free Trade Agreement. In addition, we work with clients on transfer pricing, which is critical to any business operating in more than one country which has intercompany transactions involving the exchange of goods or services.

International Transactions

Our international business attorneys assist U.S. and foreign companies in structuring their international transactions to minimize tax consequences while maximizing legal protection. Experience includes the sale of a Mexican cement company to a foreign firm, the completion of legal arrangements for a major mining project in Mexico for a Fortune 500 company, and assisting in the sale of a U.S. silicon plant to a Japanese corporation. We regularly helps Mexican firms establish operations in the United States and has bilingual attorneys who can facilitate U.S. companies working with counsel in Mexico and the rest of Latin America on commercial transactions, real estate development and other real estate projects and to establish manufacturing operations in Mexico.

Natural Resources Transactions

Our international business attorneys arrange joint ventures and a variety of international resource transactions, such as the sale of natural resource properties and negotiating major mineral projects in Mexico and South America. Further, our attorneys handle various securities and commercial issues linked to natural resources transactions abroad.

Labor and Employment Law

Our employment law attorneys have substantial experience in counseling clients on contract interpretation and grievance procedures as well as in representing employers in labor arbitrations. Our labor attorneys represent employers in negotiating collective bargaining agreements, in representation elections, and in defending unfair labor practice charges before the National Labor Review Board and in contested cases in the U.S. District Court. Our employment litigation attorneys have broad experience in employment-related civil actions alleging breach of employment contract, wrongful termination, employment discrimination and related torts. In addition, our attorneys frequently represent clients before federal and state administrative agencies, including the Arizona Civil Rights Division, Equal Employment Opportunity Commission and the Department of Economic Security. We also counsel employers on personnel manuals and procedures, drug and alcohol testing and sexual harassment policies, and compliance with specific state and federal statutes and regulations.

Legislative and Regulatory Assistance

Our regulatory attorneys have substantial experience in representing clients before the Arizona legislature. We assist in the drafting, lobbying and monitoring of legislative and regulatory proposals on behalf of clients.

Mediation and Arbitration

Our attorneys serve as mediators and/or arbitrators, providing litigation experience through a pragmatic, problem solving style to resolve disputes.

Our mediation legal services are focused on the resolution of litigated disputes, including, but not limited to: breach of contract, homeowner association disputes, foreclosure and superpriority mediation, boundary disputes, neighborhood disputes, and landlord-tenant, asset valuation, securities and complex civil litigation.

Product Liability

Our litigation attorneys counsel and represent producers and sellers of a wide range of consumer and commercial products, including automobiles, chemicals, cranes, earth-moving equipment, firearms, forklift trucks, heat pumps, medical instruments, motor homes, pharmaceuticals, tires, trucks, wheels, and other products. Our attorneys are active in national organizations devoted to product liability research and policy, including the Product Liability Committee of the American Bar Association Section of Litigation, and the Defense Research Institute Product Liability Committee. We have broad experience in traditional representation in the trial and appellate courts, preventative consultation for design and packaging, technical and operating manuals, representation at administrative hearings, preparation of legislative proposals, and lobbying services.

Professional Liability

Our business litigation attorneys advise and represent accounting, law, medical, engineering, design and architectural firms on a variety of professional liability issues. We are particularly active in the defense of attorneys in malpractice claims and the representation of lawyers in the disciplinary process.

Real Estate Litigation

Our real estate litigators have significant experience in drafting workout and settlement agreements, enforcing judgments obtained through settlements or trials, and collection procedures, including garnishments, property seizures and attachments. Our attorneys represent clients in matters including breach of contract, business torts, fraud, entitlement litigation, boundary disputes, condemnation actions, title disputes, landlord-tenant matters, professional malpractice, and construction law.

Securities Litigation

We represent individuals, broker-dealers and financial institutions in a wide variety of litigation arising under federal and state securities laws. Examples include defense of customer complaints, class-action suits, and employment and discrimination claims, intraindustry disputes, and regulatory, investigatory and criminal proceedings instituted by the federal and state governments, as well as self-regulatory organizations such as the National Association of Securities Dealers, New York Stock Exchange, American Stock Exchange and Chicago Board of Options Exchange.

Tort and Insurance Litigation

Our litigation attorneys represent clients in a wide variety of personal injury and business tort actions ranging from individual negligence actions to complex multiparty litigation. Asbestos, railroad liability, product liability, insurance bad faith and subrogation, toxic torts, and medical malpractice encompass a significant part of our tort litigation practice.

Unemployment Compensation

Our unemployment compensation legal services include issues and needs relating to unemployment insurance, taxes and benefits. Our clients range from large mining and utility companies to small service and professional firms. We represent employers defending against claims for benefits by ex-employees in all jurisdictions, including the Appeal Tribunal, Appeals Board and Court of Appeals. We also represent employers when the adverse party is the Department of Economic Security. Our attorneys participated extensively in legislative revisions to the unemployment insurance statutes and in DES rule-making proceedings to adopt or revise the voluminous set of rules that govern unemployment cases.

Workers' Compensation/Employee Health and Safety

Our employment attorneys have extensive experience working with small and midsize businesses and major corporations in the areas of workers’ compensation and OSHA regulations. Our attorneys represent employers before the Federal Occupational Safety and Health Review Commission, the Industrial Commission appellate courts. We advise clients on compliance issues and the various legal, medical and administrative issues which arise in connection with workers' compensation and OSHA claims outside the litigation arena. In addition, our legislative and lobbying services include preparing legislative proposals, lobbying and testifying before legislative committees in regards to workers’ compensation matters.