Some contracts include a "one-sided attorneys' fee clause." You will often find these in contracts where there is unequal bargaining power such as leases, consumer financing contracts and telecom contracts.
A one-sided attorneys fee clause only allows one party (the party with the weaker bargaining power) to recover attorneys' fees and costs in the case of a dispute and reads something like this:
"The Company may institute immediate action to enforce the payment of charges due and owing it, including the pursuit of all remedies available in law or equity. Customer will be responsible for paying any collection and attorney fees reasonably incurred by the Company in seeking payments owed by Customer."
Not so fast.
Under Washington law, courts are required to treat these one-sided attorneys' clauses as reciprocal with the award of attorneys fees going to the prevailing party regardless of what the contract says:
So, in the event your contract includes a one-sided attorneys fee clause, just know that the court is required to award attorneys fees and costs to you regardless of this unfair contractual term being a part of your contract.
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What follows is an extended "copy and paste" quote from the (or one of) the leading cases in Washington that discusses the Frustration of Purpose/Impracticality Doctrine. The case cite is noted below.
Metropolitan Park Dist. v. Griffith, 106 Wn.2d 425, 723 P.2d 1093 (1986) recognized the defense of impossibility, citing Thornton v. Interstate Sec. Co., 35 Wn. App. 19, 666 P.2d 370, review denied, 100 Wn.2d 1015 (1983) which in turn cited Liner v. Armstrong Homes of Bremerton, Inc., 19 Wn. App. 921, 579 P.2d 367 (1978), as well as Restatement of Contracts §§ 454, 455, and 457 (1932). Restatement (Second) of Contracts (1981) has rewritten these sections and those pertinent here are as follows:
Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.
An introductory note to chapter 11 preceding § 261 states, at pages 309-10:
An extraordinary circumstance may make performance so vitally different from what was reasonably to be expected as to alter the essential nature of that performance. In such a case the court must determine whether justice requires a departure from the general rule that the obligor bear the risk that the contract may become more burdensome or less desirable. . . . The question is generally considered to be one of law rather than fact, for the court rather than the jury. . . .
. . .
Usually the impracticability or frustration that is relied upon as a justification for non-performance occurred after the contract was made.
Where, after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.
Comment a to § 265 denotes the difference between the four preceding sections and § 265; namely, in § 265 there is no impediment to performance by either party. It denotes the elements as: (1) the purpose that is frustrated must have been a principal purpose of that party making the contract, (2) the frustration must be substantial, (3) the nonoccurrence of the frustrating event must have been a basic assumption on which the contract was made, and (4) neither the language nor the circumstances indicate the contrary. See Chicago, M., St. P. & Pac. R.R. v. Chicago & North Western Transp. Co., 82 Wis. 2d 514, 263 N.W.2d 189 (1978).
Restatement (Second) of Contracts (1981) denotes that the first Restatement of Contracts (1932) talked of impossibility, whereas the Restatement (Second) speaks in terms [***9] of impracticability as distinguished from impracticable.
A mere change in the degree of difficulty or expense due to such causes as increased wages, prices of raw materials, or costs of construction, unless well beyond the normal range, does not amount to impracticability since it is this sort of risk that a fixed-price contract is intended to cover.
Restatement (Second) of Contracts § 261, comment d (1981). Rather, impracticability has been described as extreme or unreasonable difficulty, expense, injury, or loss to one of the parties.
Here, we find the principal purpose of this contract was to purchase a hop allotment base provided and created pursuant to a hop marketing agreement. As is evident when the marketing order was terminated, effective December 31, 1985, the value of that allotment decreased, assuming a bid of $ .50 fell to $ .05, i.e., one-tenth the bid price. We consider that a substantial frustration falling within the rule.
Although both parties were aware of the discussions pro and con over the past few years of continuation of the agreement, there is no question neither party knew of the impending termination. In fact, this record reflects the Secretary of Agriculture himself did not know the marketing order had been terminated by an assistant secretary until it was called to his attention. Thus, we would find there was a basic assumption by the parties that the marketing order would remain operative.
While the Trust seeks to hold the growers to knowledge that the order could be terminated at any time, it takes no responsibility for the same knowledge. Both parties are in the same business. Both parties were aware from its inception the marketing act could be terminated at the discretion of the Secretary of Agriculture. Both parties were aware of the discussions that had been held; yet neither the Trust in its bid form nor the growers in their acceptance placed the risk on the other party or themselves in the event the marketing order was terminated. As noted in Restatement (Second) of Contracts § 261, comment c (1981): "If the supervening event was not reasonably foreseeable when the contract was made, the party claiming discharge can hardly be expected to have provided against its occurrence." We find without this basic assumption there would neither have been an offer nor an acceptance. Thus, there being no language in the contract or bid forms for one side or the other to bear the risk of termination, we find none existed. Further, as noted in § 265, comment a, HN5[ ] "the mere fact that the event was foreseeable does not compel the conclusion that its non-occurrence was not such a basic assumption."
* * * *
Further, impossibility is not applicable if one considers true impossibility. Here, the Trust had allotment base to sell and, in fact, some growers paid the price for the allotment. So, there was no impossibility as to the Trust being able to deliver the hop allotment base and there is no showing the grower had an impossibility of payment.
Having decided the theory of impracticability is applicable to both pools, we affirm the order on summary judgment.
Source: Wash. State Hop Producers Liquidation Trust v. Goschie Farms, 51 Wn.App, 484, 477-491 (1988)
Washington State Launches Web Form to Clarify “Essential” Businesses Under COVID-19 Stay Home, Stay Healthy Proclamation
A simple online form and comprehensive resources are available at www.coronavirus.wa.gov to answer questions from businesses and individuals about their essential/non-essential status.
Washington state today launched an online form so businesses can get clarification or submit a request for inclusion as essential under Gov. Jay Inslee’s Stay Home, Stay Healthy proclamation. The proclamation goes into effect at midnight tonight, closing non-essential businesses for the next two weeks.
State officials continue to emphasize that the state COVID-19 web portal is the central location for the most current information and resources for businesses and individuals:
Governor Inslee’s Stay Home, Stay Healthy proclamation defines essential and non-essential businesses and workers related to the COVID-19 emergency response. People are encouraged to review the proclamation language carefully on what is open and what is closed for the next two weeks.
“This is a difficult time for all of us, and we recognize the hardship on many businesses and families,” said Commerce Director Lisa Brown. “As Governor Inslee said Monday night, we want to get back to normal as soon as possible, and to do that, we have to hit this hard. We are taking steps to relieve and mitigate the economic impacts of this action to the greatest extent possible.”
Brown underscored that this is for now a two-week closure, and state officials will be evaluating the situation as we move through the expected increase in numbers of people testing positive for COVID-19.
Inquiries from businesses about their essential/non-essential status are being reviewed as quickly as possible. For fastest response, businesses are urged to use the portal.
In response to widely-circulated rumors, state officials also want to be clear that no one needs to be registered on any list, and no one needs a letter or pass of any kind to continue moving about, conducting essential business and activities. Visit the portal's Spread the facts page.
The COVID-19 portal at www.coronavirus.wa.gov will have the most current and accurate information.
firstname.lastname@example.org | 360-704-9489
Source: WA. Dept. fo Commerce
Whereas on February 29, 2020, Governor Inslee proclaimed a state of emergency within the State of Washington due to COVID-19;
Whereas on March 1, 2020, King County Executive Constantine proclaimed a state of emergency within King County due to COVID-19;
Whereas on March 11, 2020, Governor Inslee ordered that all events of over 250 people be halted in King, Snohomish and Pierce Counties due to COVID-19;
Whereas also on March 11, 2020, the Local Health Officer ordered that all events of over 250 people be halted in King County and that all events with 250 or fewer people be cancelled unless the organizer could implement social distancing and sanitation measures due to COVID-19;
Whereas on March 13, 2020, President Donald Trump declared a national emergency due to COVID-19;
Whereas on March 15, 2020, the Centers for Disease Control and Prevention issued interim guidance recommending the cancellation or postponement of in-person events consisting of 50 or more people due to COVID-19;
Whereas state law, RCW 70.05.070(2)-(3), requires and empowers the local health officer to take such action as is necessary to maintain health and to control and prevent the spread of any contagious or infectious diseases within the jurisdiction;
Whereas state regulation, WAC 246-100-036, requires the local health officer, when necessary, to institute disease control and containment control measures, including social distancing measures he or she deems necessary based on his or her professional judgment;
Whereas, there is evidence of increasing transmission of COVID-19 within King County, scientific evidence and national public health guidance support strategies to slow the transmission of COVID-19 and protect vulnerable members of the public from avoidable risk of serious illness or death resulting from exposure to COVID-19;
Whereas, the age, condition, and health of a significant portion of the population of King County places it at risk for serious health complications, including death, from COVID-19.
Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the public at significant risk; whereas a large surge in the number of persons with serious infections can compromise the ability of the regional health care system to deliver necessary health care to the public;
Whereas, the implementation of limitations on events and social gatherings, and use of social distancing decreases the risk of COVID-19 transmission to our most vulnerable populations, and is especially important for people who are over 60 years old and those with underlying health conditions due to the higher risk of severe illness and death from COVID-19;
Whereas, this Order will further reduce the likelihood that many individuals will be exposed to COVID-19 at community events and gatherings and at certain retail establishments, and will thereby slow the spread of COVID-19 in our community;
Whereas, this Order will help preserve critical and limited health care capacity in the County by reducing the spread of COVID-19;
Whereas, this Order is issued in accordance with, and incorporates by reference, the March 11, 2020 Governor’s Executive Proclamation on COVID-19 Community Mitigation Strategies;
Whereas this Order is issued in light of the existence of 420 cases of COVID-19 (including 37 deaths) in King County, as of March 15, 2020, and a significant and increasing number of assumed cases of community transmission and at a time when implementation of large scale community mitigation measures are recommended by the Centers for Disease Control and Prevention;
Whereas, social distancing measures can reduce COVID-19 transmission by
decreasing the frequency and duration of social and other contact among persons of all ages.
Whereas, this Order is issued to prevent circumstances often present in bars, dance clubs, movie theatres, and other social and recreational venues that may exacerbate the spread of COVID-19, such as: (a) a physical environment in which people are in close proximity and have multiple opportunities for close contact with one another that facilitates the spread of COVID-19 and; (b) the difficulty in tracing exposure and implementing traditional public health containment measures;
Whereas, although many residents and businesses followed the voluntary retail guidance issued by Public Health – Seattle & King County on March 11, 2020, confirmed COVID-19 cases have nearly doubled, reflecting both greater testing capacity and also ongoing community transmission of COVID-29;
Whereas, this Order comes after the release of substantial guidance from Public Health— Seattle & King County, the Centers for Disease Control and Prevention, and other public health officials throughout the United States and around the world. The Local Health Officer will continue to assess this quickly evolving situation and may modify or extend this Order, or issue additional Orders, related to COVID-19;
Whereas, the Local Health Officer hereby finds it is necessary to institute additional social distancing measures within King County;
Therefore, as Local Health Officer, I hereby ORDER, that beginning today, March 16, 2020:
COVID -19 Prevention Requirements
Organizers of events of fewer than 50 people and all establishments that are not closed must ensure that the following COVID-19 prevention measures are taken:
Signed and ordered this 16th day of March 2020, in Seattle, Washington, by
Dr. Jeff Duchin Local Health Officer
Public Health – Seattle & King County
What follows is a lengthy quote from a Court of Appeals Opinion that does a nice job of explaining the issue:
Washington cases mention four recognized equitable grounds for awards of attorney fees: bad faith conduct of the losing party, preservation of a common fund, protection of constitutional principles, and private attorney general actions. Dempere v. Nelson, 76 Wn. App. 403, 407, 886 P.2d 219 (1994), abrogated on other grounds by Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). There are three types of bad faith conduct that warrant attorneys fees: (1) prelitigation misconduct, (2) procedural bad faith, and (3) substantive bad faith. Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918, 927, 982 P.2d 131 (1999).
Prelitigation misconduct refers to obdurate or obstinate conduct that necessitates legal action to enforce a clearly valid claim or right. Rogerson, 96 Wn. App. at 927. Procedural bad faith is unrelated to the merits of the case and refers to vexatious conduct during the course of litigation, such as delaying or disrupting proceedings. Rogerson, 96 Wn. App. at 928. Substantive bad faith occurs when a party intentionally brings a frivolous claim, counterclaim, or defense with improper motive. Rogerson, 96 Wn. App. at 929. In other words, simply bringing a frivolous claim is not enough; there must be evidence of an intentionally frivolous claim brought for the purpose of harassment. Rogerson, 96 Wn. App. at 929.
Quoted Source: Dave Johnson Ins., Inc. v. Wright, 167 Wn. App. 758 (2012).
Online businesses like AIRBNB.com often make it impossible to find a mailing address for legal papers on their websites. In the hopes that this blog post is findable via online searches, here is the address for AIRBNB.com that I uncovered on one of my projects:
Thank you for reaching out to inform us of your client’s case.
Our legal team will act in response to a valid legal process. Pertinent documents can be sent to the following address:
CSC Lawyers Incorporating Service
2710 Gateway Oaks Drive, Suite 150N
Sacramento, CA 95833
Court Lawsuit Pros
Court Lawsuit Cons
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There are Big Changes Coming to Washington State Law on Non-Competition Agreements, and one of the changes is the requirement for employers to notify prospective new hires of the company's non-competition restrictive covenant before you hire them.
Here is draft language you can use; modify the red font to match the name of your company and the title of your Employment Agreement:
As a condition of Company Name making this offer of employment to you, on or before your date of hire, you are required to read and sign our Employee Non-Competition, Non-Solicitation, Confidentiality and Inventions Agreement (“Agreement’). A copy of the Agreement is provided with this offer letter. Please read this carefully. Please also note that, while the Agreement will be immediately enforceable in all respects should you accept our offer of employment by signing the Agreement and returning your signed copy to us, the non-competition covenant will only be enforced if, now or in the future, your annualized earnings, as reported in box one of your W-2, exceed $100,000.00, as adjusted annually based on CPI-U inflation after January 1, 2020.
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