Has Your Charter Company Been Damaged by a Competitor Cutting Corners? Continued from page 31 assert your claim in a jurisdiction that recognizes such claims because, depending on the jurisdiction, you may be able to seek punitive dam- ages which, by nature, are intended to deter wrongful conduct. When a com- petitor offering illegal charter solicits your customers with false promises and misrepresents that nature of the services offered, it may give rise to a claim of unfair trade practices. Remedies Available to Address the Claims Just as the claims available in each state vary, so do the remedies that are used to address the claims. The most favorable jurisdictions may allow you to seek both equitable and legal remedies simultaneously. Equitable remedies are ones that are designed to prevent the harm from continuing, and legal remedies are designed to compensate you for the loss sustained. The most favorable jurisdictions are those that allow you to seek a pre- liminary remedy while your case is pending. Some states, for example, allow a commercial party to seek a prejudgment remedy. A prejudgment remedy is “any remedy or combina- tion of remedies that enables a person by way of attachment, foreign attach- ment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendants of his property prior to final judgment.”1 If a court were to grant you a pre- judgment remedy, it could effectively preclude the party whom you are asserting a claim against from access to the property or from removing the property from the jurisdiction, 1 General Elec. Capital Corp. of Puerto Rico v. Rizvi, 113 Conn. App. 673, 971 A.2d 41 (2009). Aviation Business Journal | 3rd Quarter 2018 pending a hearing and/or final dis- position of your case. If you were to seek a prejudgment remedy against your competitor who is threaten- ing your business by offering illegal charter, that would surely get their attention and thwart the competi- tive advantage they had secured by engaging in illegal charter. Although not as accessible as states allowing prejudgment remedies, many other jurisdictions, including New York and New Jersey, allow you to seek to attach property or obtain a tem- porary restraining order upon filing a claim for either tortious interfer- ence with contractual/business relations or unfair trade practices. Depending upon the nature of your claim and the jurisdiction you assert it in, you may also have a claim for monetary damages. Monetary dam- ages come in several forms. First are compensatory damages, which are designed to compensate you for the monetary loss you sustained as a result of the wrongful conduct. Next are punitive damages, which are awarded to punish and deter wrong- ful conduct. Lastly, you may be able to recoup your attorneys’ fees. As a general rule, all litigants are required to bear their own attorneys’ fees. This is commonly referred to as the American Rule. Notwithstanding that, in some jurisdictions, attorneys’ fees may be recouped in connection with unfair trade practices claims. While you may have a claim that would allow you compensation for your business losses, actually recouping those losses will depend on whether you prevail on your claims and obtain a judgment against the illegal charter operator. Even if you obtain a judgment against the illegal charter operator, you may not necessarily be able to collect on that judgment. Whether you can collect on a judgment will depend on whether the illegal charter operator has the funds and assets necessary to pay the judgment. Rather than pay the judgment, they may simply file bankruptcy. In the event of a bank- ruptcy, you may only be able to recoup a small portion of the judgment. WHAT SHOULD YOU DO IF YOU THINK YOU HAVE A CLAIM AGAINST A COM- PETITOR FOR DAMAGES ASSOCIATED WITH THEIR ILLEGAL CHARTER? If you think you have a claim against a competitor engaged in illegal charter and seek to either stop the harms from continu- ing or to obtain compensation for the harms, you should take these three steps. First, collect evidence showing that your competitor was engaged in illegal charter. Second, you must amass the proof needed to show that your business was harmed as a result of the illegal charter. Third, discuss your claims and evidence with trusted counsel. How to Collect Evidence that Your Competitor Engaged in Illegal Charter Identify who is threatening your business. Specifically, you should identify the entity and/or the per- sons involved. There is a wealth of information publicly available in this regard. Is the operator a tenant at a municipal airport? If so, perhaps you can identify the detailed entity Continued on page 35 33
