Litigation and Capital with Steven Mirsky

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Litigation and Capital with Steven Mirsky, partner at Mirsky Corporate Advisors, breaks down high-stakes legal issues affecting companies earning $10-100 million annually. The show aims to help business owners turn complexity into leverage and protect their assets through expert legal insights and practical advice.

  1. Aug 31

    When a Contract Doesn’t Protect You: What Actually Happens in a Dispute

    Episode Summary: In this episode of Litigation and Capital, host Lisa Mosbey sits down with Steven Mirsky, founder of Mirsky Corporate Advisors, to delve into the complexities of contract disputes. They explore why contracts that seem ironclad on paper may falter in real-world disputes, examining factors such as litigation processes, bad faith actors, and procedural mechanisms that can delay or complicate resolutions. Steven shares insights from a case involving a business sale where lenient default provisions led to unexpected challenges.  The discussion highlights the importance of understanding provisions like notice and cure mechanisms and the impact of jurisdiction and venue on legal outcomes. Steven emphasizes the role of emails and negotiations as evidence and the necessity of proactive legal strategies. This episode is essential for business leaders seeking to protect their interests and navigate the intricacies of contract law effectively. Key Timestamps: 00:01 – Introduction 0:54 – Why Contracts Fail in Disputes 1:33 – Litigation Process and Bad Faith Actors 2:11 – Case Study: Business Sale Gone Wrong 3:09 – Importance of Default Provisions 4:11 – Provisions That Fail Under Pressure 5:17 – Notice and Cure Mechanisms 6:23 – Governing Law and Jurisdiction 7:48 – Procedural Mechanisms in Litigation 8:31 – Role of Emails and Negotiations 10:12 – Impact of Party Behavior on Disputes 11:03 – Strengthening Your Legal Position 12:24 – Losing Leverage in Legal Battles 14:36 – Final Advice for CEOs About the Show: Litigation and Capital is a podcast designed for business leaders navigating high-stakes legal challenges. Hosted by Steven Mirsky, founder of Mirsky Corporate Advisors, the show breaks down complex legal issues affecting companies with revenues between $10 million and $100 million.  Each episode provides insights into turning legal complexities into strategic leverage, helping listeners protect their businesses and make informed decisions. With a focus on clarity and actionable advice, Litigation and Capital equips listeners with the knowledge to tackle legal hurdles effectively. Visit the website below to learn more: https://mirskycorporateadvisors.com/

    When a Contract Doesn’t Protect You: What Actually Happens in a Dispute

  2. Aug 17

    The Deal Closed and Then Collapsed: What Actually Went Wrong

    Episode Summary: In this episode of Litigation & Capital, host Lisa Mosbey is joined by Steven Mirsky, founder of Mirsky Corporate Advisors, to explore the complexities that arise after a business deal closes. They delve into common issues such as identity and personality conflicts, financial concerns, and the impact of rushed due diligence. Steven shares real-world examples, including disputes over net working capital and earnouts, to illustrate how seemingly solid deals can unravel.  The discussion also covers the importance of understanding deal structures, the role of assumptions in business valuations, and strategies to avoid litigation. Steven emphasizes the need for thorough preparation, including conducting audits and setting realistic expectations, to ensure a smoother transaction process. Listeners will gain valuable insights into how to protect their interests and navigate potential pitfalls in high-stakes mergers and acquisitions. Key Timestamps: 00:01 – Introduction 00:28 – Common Causes of Deal Breakdowns 01:15 – Personality and Identity Issues in M&A 02:13 – Financial Concerns and Due Diligence 03:54 – Real-World Example: Trucking Business Dispute 05:43 – Earnout Disputes and Stakeholder Changes 07:02 – Assumptions and Business Valuations 08:56 – Impact of Deal Structures on Post-Closing Issues 11:06 – Avoiding Litigation: Key Considerations 12:18 – Dispute Resolution Mechanisms 14:01 – Importance of Due Diligence and Audits 15:19 – Preparing for a Sale: Long-Term Strategies About the Show: Litigation & Capital is a podcast dedicated to unraveling the complexities of high-stakes legal issues affecting mid-sized companies. Hosted by Lisa Mosbey, each episode features in-depth discussions with industry leaders and legal experts like Steven Mirsky. The show aims to transform intricate legal challenges into actionable insights, empowering business owners to protect their investments and leverage opportunities. Whether you're navigating mergers and acquisitions, facing potential litigation, or seeking to understand the legal landscape, Litigation & Capital provides the clarity and guidance you need to make informed decisions. Visit the website below to learn more: https://mirskycorporateadvisors.com/

    The Deal Closed and Then Collapsed: What Actually Went Wrong

  3. Aug 3

    Forbearance Agreements: What You’re Actually Giving Up to Buy Time

    Episode Summary: In this episode of Litigation & Capital, host Steven Mirsky, founder of Mirsky Corporate Advisors, joins co-host Shameika Rhymes to delve into the complexities of forbearance agreements. They discuss the critical elements borrowers need to understand when entering such agreements, including the rights and remedies that are typically waived and the potential financial implications. Steven explains how these agreements can recharacterize transactions and the risks of harsher default terms, such as default judgments. The conversation also covers the potential consequences for borrowers who default during the forbearance period and the strategies lenders might employ to control business decisions. This episode is essential for business owners and creditors seeking to understand the nuances of forbearance agreements and how to protect their interests effectively. Key Timestamps: 00:01 – Introduction 00:25 – Understanding Forbearance Agreements 00:54 – When Forbearance Agreements Are Used 01:31 – Key Clauses to Review 02:12 – Rights and Remedies Waived 03:14 – Recharacterization of Transactions 03:34 – Default Terms and Judgments 04:18 – Mismatch of Releases 04:51 – Consequences of Defaulting Again 05:24 – Borrower's Options During Default 05:59 – Lender's Control Through Forbearance 06:46 – The Cost of Forbearance About the Show: Litigation & Capital is a podcast dedicated to unraveling complex legal and financial issues that impact businesses earning between $10 million and $100 million annually. Hosted by Steven Mirsky, the show provides insightful analysis and practical advice to help business leaders turn challenges into opportunities. Each episode focuses on a different high-stakes topic, offering clarity and strategic guidance to protect and grow your enterprise. Whether you're navigating legal intricacies or financial hurdles, Litigation & Capital equips you with the knowledge to make informed decisions.

    Forbearance Agreements: What You’re Actually Giving Up to Buy Time

  4. Jul 20

    Loan Documents in Practice: What Actually Matters After Default

    Episode Summary: In this episode of Litigation and Capital, host Steven Mirsky, founder of Mirsky Corporate Advisors, delves into the critical aspects of loan documents when a borrower defaults. Joined by Shameika Rhymes, they explore how life changes for borrowers post-default, the role of creditors, and the importance of understanding loan agreements. Steven explains how lenders exercise their interests through collateral and events of default, and the implications of acceleration clauses and remedies provisions. He highlights the significance of reading contracts thoroughly and the potential pitfalls of guarantees and cross-default provisions. By understanding these elements, borrowers can better navigate financial challenges and protect their business interests. Key Timestamps: 00:01 – Introduction 00:31 – Life Changes Post-Default 01:56 – Lender's Interests After Default 03:05 – Events of Default Explained 04:16 – Acceleration Clause Impact 05:08 – Remedies Provisions for Lenders 07:19 – Collateral Repossession 07:41 – The Role of Guarantees 10:12 – Cross Default Provisions 12:13 – Lender Control Over Cash Flow 12:50 – Negotiating Loan Terms 14:32 – Flexibility in Loan Agreements About the Show: Litigation and Capital is a podcast designed for business owners and executives navigating the complex world of corporate finance and legal challenges. Hosted by Steven Mirsky, each episode breaks down high-stakes legal issues affecting mid-sized companies, providing insights and strategies to turn complexity into leverage. With a focus on clarity and actionable advice, the show aims to empower listeners to protect their business interests and make informed decisions in the face of financial and legal pressures.

    Loan Documents in Practice: What Actually Matters After Default

  5. Jul 6

    Improper UCC Filings: Why a UCC-1 Doesn’t Always Perfect a Security Interest

    Episode Summary: In this episode of Litigation & Capital, host Sean O'Connor and Steven Mirsky, founder of Mirsky Corporate Advisors, delve into the complexities of UCC filings and their role in creating valid security interests. The discussion centers on the critical elements that courts examine to determine whether a security interest has attached, such as the type of collateral, the necessity of a security agreement, and the importance of perfecting a security interest. Steven explains the nuances of filing a UCC-1 and the potential pitfalls creditors face when their filings do not align with underlying agreements. The episode also covers how courts handle disputes over financing statements, particularly when they are used as leverage rather than legitimate claims. This episode is essential for business owners and legal professionals seeking to navigate the intricacies of UCC filings and ensure their financial interests are protected. Key Timestamps: 00:01 – Introduction 00:26 – Importance of UCC Filings 01:04 – What is a Security Agreement? 01:48 – Types of Collateral 02:34 – Perfecting Security Interests 03:24 – Control Over Deposit Accounts 04:04 – Evaluating Financing Statements 05:19 – Matching Test for Security Interests 06:28 – Unauthorized Filings and Court Analysis 07:38 – Economic Reality vs. Financing Statements 09:09 – Perfection vs. Attachment 09:57 – UCC Filings as Leverage 11:50 – Pre-Litigation Freezing of Funds 12:45 – CEO's Guide to Reviewing UCC Filings About the Show: Litigation & Capital is a podcast designed for business owners and legal professionals navigating the complex world of high-stakes legal issues. Hosted by Steven Mirsky, founder of Mirsky Corporate Advisors, the show breaks down intricate topics such as corporate litigation, financial regulations, and strategic legal planning. Each episode aims to transform legal complexities into actionable insights, empowering listeners to protect their business interests and leverage legal strategies effectively. With a focus on clarity and practical advice, Litigation & Capital serves as a valuable resource for those looking to stay informed and proactive in the legal landscape.

    Improper UCC Filings: Why a UCC-1 Doesn’t Always Perfect a Security Interest

  6. Jun 22

    Unconscionability in High-Dollar Commercial Deals: When Sophisticated Parties Still Get Protected

    Episode Summary: In this episode of Litigation and Capital,  Steven Mirsky, founder of Mirsky Corporate Advisors, delves into the complexities of unconscionability in commercial contracts. Steven explains how courts differentiate between procedural and substantive unconscionability, particularly in high-dollar agreements between sophisticated parties. The discussion covers various scenarios, such as rushed negotiations and contracts of adhesion, and how courts evaluate the fairness of terms. Steven shares insights from real cases, highlighting the importance of meaningful consent and the challenges of proving unconscionability. The episode provides valuable guidance for CEOs and business leaders on negotiating contracts and recognizing potential pitfalls. Listeners will gain a deeper understanding of how to protect their interests in complex legal landscapes. Key Timestamps: 00:01 – Introduction 00:54 – Defining Unconscionability 01:39 – Procedural vs. Substantive Unconscionability 02:25 – Unconscionability as a Contract Defense 03:10 – Evaluating Procedural Unfairness 03:48 – Case Study: Lender's Unfair Terms 04:18 – Assessing Substantive Unconscionability 05:31 – Real-World Impact of Unconscionable Terms 06:09 – Judges' Views on Disclaimers and Sophistication 07:21 – Importance of Evidence in High-Risk Financing 09:16 – CEO's Role in Contract Negotiations 11:12 – Narrow Scope of Unconscionability 12:06 – CEO Optimism and Contract Analysis About the Show: Litigation and Capital is a podcast designed for business leaders and legal professionals navigating the complexities of high-stakes legal issues. Hosted by Sean O'Connor, the series features in-depth discussions with industry experts like Steven Mirsky, who break down intricate topics such as commercial litigation, contract law, and corporate strategy. The show aims to turn legal complexity into leverage, providing listeners with actionable insights to protect and grow their businesses. Whether you're a CEO, legal advisor, or entrepreneur, Litigation and Capital offers valuable perspectives to help you make informed decisions.

    Unconscionability in High-Dollar Commercial Deals: When Sophisticated Parties Still Get Protected

  7. Jun 8

    False Choice-of-Law Clauses: When Courts Ignore What Your Contract Says

    Episode Summary: In this episode of Litigation & Capital, host Steven Mirsky, founder of Mirsky Corporate Advisors, and co-host Sean O'Connor delve into the complexities of choice of law clauses in contracts. They explore why courts might disregard the law selected by parties and how such decisions can reshape disputes. Steven outlines the high burden of proof required to challenge a choice of law provision, especially when it contradicts a state's fundamental policy. The discussion covers the intricacies of section 187 of the Restatement Second of Conflict of Laws, the importance of understanding the relationship between the chosen law and the parties, and the potential red flags that might indicate a choice of law provision won't survive judicial scrutiny. This episode is crucial for business leaders and legal professionals navigating high-stakes contracts, providing insights into protecting their interests and understanding the legal landscape. Key Timestamps: 00:01 – Introduction 00:26 – Importance of Choice of Law Clauses 00:50 – Courts' Threshold Issues 01:55 – High Burden of Proof in Litigation 02:23 – Fundamental Policy Violations 03:19 – Factors Courts Consider 04:25 – Indicators of Avoiding Scrutiny 05:10 – Role of State Registration 06:07 – Relationship Between Parties and Law 07:02 – Economic Structure vs. Legal Classification 08:23 – Court Preferences in Jurisdiction 09:09 – Judges' Approach to Contractual Provisions 10:19 – Impact of Aggressive Financing Arrangements 12:19 – Presumption Against Illegal Contracts 13:41 – Red Flags in Choice of Law Provisions About the Show: Litigation & Capital is a podcast designed for business leaders and legal professionals navigating the complex world of high-stakes legal issues. Hosted by Steven Mirsky, founder of Mirsky Corporate Advisors, the show breaks down intricate legal concepts affecting companies earning $10 to $100 million annually. Each episode aims to turn legal complexity into leverage, helping listeners protect what they've built. With a focus on clarity and actionable insights, Litigation & Capital equips its audience with the knowledge to make informed decisions in the ever-evolving legal landscape.

    False Choice-of-Law Clauses: When Courts Ignore What Your Contract Says

  8. May 25

    The Guaranty Trap: How “Limited” Guarantees Become Unlimited Liability

    Episode Summary: In this episode of *Litigation and Capital* Steven Mirsky delves into the intricacies of limited guarantees. He explains how provisions labeled as limited can often translate to open-ended liability for the signer. Steven highlights the importance of scrutinizing guarantee agreements to truly understand the extent of one's obligations, offering valuable insights for business owners navigating commercial financing agreements. Key Timestamps: 00:00 – Introduction to Litigation and Capital (EP 14) 00:45 – What Is a “Limited” Personal Guarantee in Commercial Financing? 01:45 – Why “Limited” Guarantees Often Operate as Full/Open-Ended Liability 03:00 – How Courts Evaluate the True Scope of a Guarantee (Language & Incorporation) 04:30 – Survivability Clauses: Do Guarantees Survive Expiration of the Main Agreement? 05:00 – Weight Judges Give to Meaningful Conditions That Actually Limit Liability 06:15 – Lender Communications & Expectations: Viewing the Business as Alter Ego 07:30 – Economic Reality vs. Contract Language in Guarantee Enforcement 08:45 – Red Flags in Guarantee Drafting: “Guarantee of Payment” vs. Collection 09:45 – Key Terms to Watch: Waivers, Joint & Several Liability, Full Performance 10:45 – Practical Advice: Assess Worst-Case Risk Before Signing 11:30 – Final Warnings & Closing Remarks 12:00 – Call to Action at mirskycorporateadvisors.com About the Show: *Litigation and Capital* provides expert insights into high-stakes legal issues affecting mid-sized companies, offering guidance on turning complexity into leverage. Join Steven Mirsky as he breaks down legal nuances and strategies for protecting your business.

    The Guaranty Trap: How “Limited” Guarantees Become Unlimited Liability
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Litigation and Capital with Steven Mirsky, partner at Mirsky Corporate Advisors, breaks down high-stakes legal issues affecting companies earning $10-100 million annually. The show aims to help business owners turn complexity into leverage and protect their assets through expert legal insights and practical advice.

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