Virginia’s Go To Lawyers – Business Law: Ellen D. Marcus

Ellen D. Marcus
Holmes Costin & Marcus PLLC
Member
Alexandria

Education / Certifications:

BA, magna cum laude, Amherst College
JD, Columbia Law School – Harlan Fiske Stone Scholar; Senior Editor, Columbia Law Review

What is the field or practice area for which you are best known?

I represent companies and people in the business world in high-stakes business disputes. Many of my clients have found themselves at odds with their business partners over control of the company or distribution of profits. I have also represented companies losing business to competitors that are not playing by the rules, and high-level executives whose employers are breaching compensation agreements. On behalf of these clients, I have achieved favorable results, often after securing courtroom wins.

Please describe a signature case, deal or transaction.

Most of my clients’ cases are ultimately resolved with confidential settlement agreements after a court or arbitration panel has ruled on a key issue in my client’s favor, usually on an issue of contract interpretation. Often, the contract is ambiguous, the facts are complex and the evidence must be developed through discovery. These rulings have included: under the terms of a contract, my client had achieved a performance objective, entitling the client to a premium payment, doubling my client’s revenues; the acquisition of my client’s company was a “change in control” contractually entitling my client to substantial severance payments and reimbursement of legal fees; and the successful business my client started after separating from a former business partner did not violate their noncompete agreement.

Please briefly mention up to three additional important cases, deals or transactions.

Three other recent examples of cases of achieving my clients’ objectives after securing rulings in their favor are:

• defeating an emergency motion brought in federal court by a client’s customer trying to avoid paying our client for its work,
• after defeating multiple motions brought against our client in Virginia state court by his former business partners accusing him of stealing confidential information, having the case dismissed; and
• having a case dismissed for lack of jurisdiction where our client was sued in Virginia state court over an overseas land deal.

Describe your approach to working with clients.

I stay in close communication with my clients about their objectives, always mindful that they are subject to change as new facts surface, the business evolves, market conditions change, and life goes on.

What is the best career advice you’ve received?

First, be yourself. You will be far more effective as an advisor and advocate if you speak in your own, authentic voice. Second, do trials. That way, you will really mean it when you reach an impasse and tell your adversary: “let’s go to trial.” More important, your adversary will know you mean it, which is leverage for your client. Third, split your time roughly equally between representing plaintiffs and defendants. Working on behalf of plaintiffs will make you better at representing defendants and vice versa.

What developments in business law do you expect to see in 2021?

In 2020, we saw the entrepreneurially minded seize business opportunities presented by the pandemic. They moved fast and made deals along the way. They may not have had the bandwidth to carefully memorialize the terms of their agreements, consider all contingencies, or seek legal advice. As the dust settles in 2021, these business leaders will be strategizing to deal with the aftermath of having moved quickly and will be looking to us for help.