⚠ Assignment Must Precede Filing
The assignment must be executed BEFORE the complaint is filed. Post-filing assignment creates standing problems that can result in dismissal. If you're the assignee, verify and document the assignment before initiating litigation.
Assignable vs. Non-Assignable Claims
✓ Generally Assignable
- Breach of Contract All contract rights generally assignable unless contract prohibits
- Fraud / Misrepresentation Assignable in most states as property-like claims
- IP Infringement Patent, trademark, copyright, trade secret claims
- Breach of Fiduciary Duty Corporate claims often assigned in M&A deals
- Unjust Enrichment Quasi-contract claims are generally assignable
- Account Stated Debt collection claims routinely assigned
- Conversion Property tort claims typically assignable
✗ Generally NOT Assignable
- Personal Injury Personal to the injured party; cannot sell tort claims
- Wrongful Death Statutory beneficiaries only; not transferable
- Defamation Personal reputation claims; non-assignable tort
- Invasion of Privacy Personal dignity torts not transferable
- Legal Malpractice Most states prohibit assignment of mal claims
- Workers' Compensation Statutory claims non-assignable by law
- Family Support Child support, alimony non-assignable
Rule 17: Real Party in Interest
Federal Rule 17(a)
An action must be prosecuted in the name of the real party in interest. After valid assignment, the assignee is the real party and must sue in their own name, not the assignor's.
Standing Challenge
Defendants routinely move to dismiss for lack of standing. Be prepared to prove: (1) valid assignment, (2) assignment before filing, (3) all rights transferred, (4) consideration paid.
Ratification Option
Rule 17(a)(3) allows ratification, joinder, or substitution if the wrong party sued. But this adds delay and expense. Best to get it right from the start.
Partial Assignment
If only some claims assigned, both assignor and assignee may need to join. Document clearly which claims transferred and which retained.
Required Documentation
📄 Assignment Agreement
- Identify specific claims transferred
- Reference underlying facts/contracts
- Transfer "all rights and remedies"
- Include litigation rights language
- State consideration (even if nominal)
- Execute before complaint filed
📋 Board Resolutions
- Assignor board: authorize transfer
- Assignee board: authorize acceptance
- Identify authorized signatories
- Reference assignment agreement
- Attach to assignment for completeness
💬 Notice to Defendant
- Written notice of assignment
- Reference agreement date
- Identify claims transferred
- Direct future communications to assignee
- Prevents payment to wrong party
California vs. Federal Rules
| Issue | California State Court | Federal Court |
|---|---|---|
| Governing Rule | CCP § 367 (real party in interest) | FRCP Rule 17(a) |
| Assignability Standard | Liberal; most choses in action assignable | State law determines assignability |
| Fraud Claims | Assignable under Cal. Civ. Code § 954 | Depends on state law |
| Legal Malpractice | Generally NOT assignable | Follows state law (usually not) |
| Cure Period | Court discretion to allow amendment | Rule 17(a)(3): reasonable time to ratify |
| Anti-Assignment Clauses | Enforceable per contract terms | Enforceable per state law |
Related Resources
📜 IP Assignment Hub
Assign IP rights along with infringement claims for complete transfer.
🛡 UVTA Analysis
Ensure claim assignment doesn't trigger fraudulent transfer liability.
📋 General Release Generator
Release claims not being transferred to clean up the transaction.
💰 Angel Workout Hub
Coordinate claim assignment with creditor restructuring.
Need Help Assigning Claims?
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