Advocacy and Dispute Resolution for eCommerce Businesses

By Paul S. Rafelson, Founder, Rafelson Law PLLC

What does Advocacy cover?

• Litigation. Suing, defending a lawsuit and seeking emergency relief in court.
• Demand letters and cease-and-desist letters. Sending them, responding to them and settling what they raise.
• Contract and business sale disputes. Breach of contract, indemnity, escrow, earnout and unpaid-note disputes after a sale.
• Intellectual property enforcement in court, when platform tools are not enough. See trademark vs. copyright in court and patent disputes.

How does a dispute usually progress?

1. Assess. Read the contract, the notices and the records and identify the claims, the defenses and the deadlines.
2. Preserve. Keep emails, messages, account records and files. Once a dispute is reasonably anticipated, there is a duty to preserve relevant evidence.
3. Demand or negotiate. Many disputes end with a demand letter, a response and a negotiated settlement.
4. Choose the forum if the dispute does not settle: court, arbitration or another process the contract requires.
5. Resolve. By settlement, a decision or an appeal where available.

When does a dispute need a forum?

A dispute needs a forum when negotiation fails, when a deadline or limitations period is running or when a party needs an order that only a court or arbitrator can give.

• Court. A lawsuit asks a judge or jury to decide the dispute and can result in damages, an injunction or other relief. Which court (state or federal) depends on the claims, the parties and the contract.
• Arbitration. A private process in which an arbitrator decides the dispute. It applies when the parties agreed to it, and the Federal Arbitration Act (9 U.S.C. § 1 et seq.) generally makes such agreements enforceable. Many marketplace and commercial agreements contain arbitration clauses, so read the clause before deciding where to bring a claim.
• Mediation. A negotiation with a neutral mediator who helps the parties reach a settlement. Contracts often require it before a lawsuit, and courts often order it during a case.
• Emergency relief. A court is able to issue a temporary restraining order or a preliminary injunction to stop conduct while the case continues. In federal court the standard comes from Rule 65 and Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). State courts apply their own rules, which ask similar questions. The standard is demanding and relief is not available in every case.

Where are other disputes handled?

Several kinds of disputes sit in their own sections and are cross-referenced here rather than repeated:

• Amazon account suspensions and appeals and ASIN suspensions (eCom.Amazon).
• Amazon IP claims, Brand Registry reports and APEX (eCom.IP and eCom.Brand Registry).
• Competitor-driven complaints and compliance cases and Prop 65 notices and settlements (eCom.Compliance).
• Disputes over a pending business sale (eCom.M&A).
• Amazon arbitration over a deactivation or held funds (eCom.Amazon).

What should I do first?

• Do not ignore a summons, notice or demand. A response deadline in a lawsuit runs from the day you were served, not the day you read it, and a missed deadline lets the other side take a judgment without a hearing on the merits.
• Gather the contract, the notices and the timeline.
• Preserve evidence and do not delete anything.
• Do not reply to the other side until you understand the claim.
• Note every deadline.

How do I get started?

Contact us. Bring the contract, the notices and the deadline, and tell us what has happened, and we will tell you whether we can help.

Paul Rafelson is admitted in Florida and New Jersey. Katie Dariano is admitted in New York. For a matter governed by another state’s law, or in another state’s courts, we bring in local counsel or seek admission as the rules require.

Frequently asked questions

Related pages

Sources and notes

• 9 U.S.C. § 1 et seq.; Fed. R. Civ. P. 65; Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).