A. Formation, Scope and Modification
- In re Energy Futures Holding Co, 2015 Bankr. LEXIS 3701 (Bankr. D.
Del. 2015) – Make-whole premium provision interpreted not to
apply as a matter of contract law as a result of filing of
- Grand Prospect Partners, L.P. v. Ross Dress For Less, Inc., 232
Cal.App.4th 1332 (2015) – Court finds no procedural
unconscionability where party refuses to negotiate with respect to
a particular term.
- Legras v Aetna Life Insurance Company, 786 F.3d 1233 (9th Cir. 2015)
– As a matter of Federal common law, when counting days within
which an act must occur, if the last day falls on a weekend the act
may be performed on the next weekday.
- Life Plans, Incorporated v. Security Life of Denver Insurance Company,
800 F.3d 343 (7th Cir. 2015) – Provision of agreement regarding
three year term and termination was ambiguous.
- In re Residential Capital, LLC, 2015 WL 2226232 (Bankr. SDNY 2015)
– A depositary bank may use a ‘change of terms’ provision to
make a depositor into a guarantor of debts of affiliates of fee
depositor owed to bank.*
- Teletracking Technologies, Inc. v. Gori, _ A.3d _ (Pa. 2015) (nonprecedential)
- Right of first refusal does not prohibit transfer. A
right of first refusal gives the holder of the right the legal privilege
to purchase the object, subject to the right for the same price that
the offeror is willing to pay for it. There is no legal requirement
that the holder of the right be ‘capable’ of purchasing the object for
- Mohamed v. Uber Technologies, Inc., _ F.Supp.3d _ (ND Calif. 2015) –
Electronic signature process is effective. But arbitration provision
delegating ‘gateway’ issues not enforceable because not ‘clear and
unmistakable’ and provision is unconscionable as is unilateral
- Transverse, LLC v. Iowa Wireless, LLC, _ F.3d _ ( Cir. 2015) – May
interpret contract by words that are typically objects of verbs used.
- Cobb v. Ironwood Country Club, _ Cal.App.4th _ (2015) - Good faith
makes contract with unilateral modification right not illusory.
- Whitlow v. Rideout Memorial Hospital, _ Cal.App.4th _ (2015) – A
hospital emergency room could be liable for acts of an
independent contractor emergency room physician under
principles of ostensible authority. The court held that such a
doctor could be an ‘ostensible agent’ of the hospital, even though
the admissions form, signs in the emergency room, and insignia
on the doctor’s garments emphasized that the doctor was not an
employee of the hospital. The court noted that because the patient
was in ‘excruciating’ pain it may not be ‘reasonable’ to expect the
patient to understand the import of all of the non-agent
- Kochins v. Evolution Marketing (NY Sup Ct, Appellate Division,
First Department April 2, 2015) – Contract can be formed by email.
- Bank of Brewton v. Travelers, _ F3d _ (11th Cir 2015) – A
fraudulently obtained stock certificate not ‘counterfeit’ for
purposes of an insurance policy.
- Grandadino v. Wells Fargo Bank, _ Cal.App.4th _ (2015) – There is
claim for promissory estoppel in absence of proof of oral promise
for home loan modification.
- BOKF, N.A. v. Caesars Entertainment Corporation, _ F.Supp.3d _
(S.D.N.Y. 2015) - Although the plain meaning of ‘and’ is
‘conjunctive’ and the plain meaning of ‘or’ is ‘disjunctive’, the
meaning of words in a contract depend on ‘the context and usage
in a particular contract’ to implement the ‘intent’ of the parties.
The court said that those words could each have the opposite
meanings, depending on the ‘context and usage’.
- Kolchins Evolutions Markets (NY App Div April 2 2015) – E-mails
can form binding agreement if they contain ‘essential’ terms of
- International Union v. General Motors, LLC, _ F.3d _ (6th Cir. 2015) –
Integration clause not dispositive because scope of that clause
itself has to be interpreted.
- Siga Technologies Inc. v. Pharmathene Inc., _ A.3d _ (Del. DC. 23,
2015) – A party that breaches a “preliminary agreement” by not
negotiating a definitive agreement in good faith may be liable for
expectation damages (i.e., damages based on lost profits) if the
non-breaching party can show that a definitive agreement would
have been reached had the other party negotiated in good faith.
The non-breaching party has to show “certainty” of the “fact” of
damages, but not their amount. The breaching party bears the risk
of the uncertainty of showing the amount of damages.
- Bank SNB v. Flemming, _ F.Supp.3d _ (W.D. Okla. 2015) – Under
Uniform Electronic Transactions Act borrower’s e-mails
sufficiently acknowledged debt to create an enforceable signed
- Campbell-Ewald Co. v. Gomez, _ U.S. _ (2016) – Under basic
principles of contract law, an offer to make a contract, once
rejected, has no continuing efficacy.
- In Touch Concepts, Inc. v. Cellco Partnership, _ F.3d _ ( 2d Cir. 2015)
(applying New York law) – Party to an agreement may exercise
unilateral termination right. Implied duty of good faith does not
restrict exercise of that right.
B. Interpretation and Meaning of Agreement
- Chebotnikov v. Limolink, Inc., _ F.Supp.3d _ ( D. Mass. 2015) - As a
general matter of contract interpretation, disputes “arising under,”
“arising out of,” or “arising from” the terms of an agreement must
have their inception in the agreement itself. That language does
not encompass matters ‘related’ to the agreement or the
relationship of the parties. The phrase “arising out of” is construed
by courts. The court’s give a broader reading to “with reference
to,” “relating to,” or “in connection with.”
C. Adhesion Contracts, Unconscionable Agreements, Good Faith and Other
Public Policy Limits, Interference with Contract
- MeehanCombs Global Credit Opportunities Funds, LP v. Caesars
Entertainment Corp., No. 14-CV-7091 SAS, 2015 WL 221055
(S.D.N.Y. Jan. 15, 2015) – Trust Indenture Act § 316(b) requires
unanimous consent to as protection of each noteholder’s right to
- Grand Prospect Partners, L.P. v. Ross Dress For Less, Inc., _
Cal.App.4th _ (2015) – No procedural unconscionability where
party refuses to negotiate with respect to a particular term.
- Pringle v. Garcia, 2015 WL 3606391 (N.D. Ind. 2015) – The jury
waiver in the parties’ Guaranty and Collateral Agreement was
enforceable. The agreement was among sophisticated parties, the
parties had the opportunity to read the agreement, and the waiver
was printed in all capital letters and applied to all parties. As to
the remaining defendants, there was no right to a jury with respect
to the creditor’s request for an appointment of a receiver for the
collateral, because that is an equitable remedy, but there was a
right to a jury with respect to the count seeking replevin and
foreclosure because those are legal remedies.
- Tibble v. Edison Int’l, _ U.S. _ (2015) – Trustee of ERISA trust has
common law trust duty to monitor appropriateness of investments
at regular intervals.
- Montgomery v. GCFS, Inc., _ Cal.App.4th _ (2015) – California
finance lender may sell notes to unlicensed persons.
- In re County of Orange, 784 F. 3d 520 (9th Cir. 2015) - Court held
that the federal rule on jury waivers to be a constitutional
minimum and incorporated into federal law California’s more
protective law on jury waivers. The court declined to enforce the
jury trial waiver.
- Clear-View Technologies, Inc., v. Rasnick et al., F.3 – Court awarded
- Bozzio v. Emi Group Limited, _ F.3d _ (9th Cir. 2016) – A third-party
beneficiary of a contract can bring an action, even if another
aligned party is suspended and cannot bring an action.
- Orcilla v. Big Sur, Inc., _ Cal.App.4th _ (2016) – Loan and loan
modification documents were unconscionable where there was
slight procedural unconscionability because the documents were
in English only and English was the second language of the
parties. Under the “sliding scale” test, the substantive
unconscionability was “harsh” because the revised monthly loan
payments exceeded their income by more than $1,000.
D. Risk Allocation
- Lewis v. YouTube, LLC, _ Cal.App.4th _ (2016) – Contract clause
stating that service provider would bear no liability “whatsoever”
for damages resulting from “errors or omissions in any content or
for any loss or damage of any kind incurred as a result of your use
of and content posted, emailed, transmitted, or otherwise made
available via the services, whether based on warranty, contract,
tort, or any other legal theory” applied to contract claim.
Limitation of liability was particularly appropriate in connection
with provision of free service.
- Nomura Home Equity Loan, Inc., Series 2006-FM2 v. Nomura Credit &
Capital, 2015 N.Y. Slip Op. 07458 (1st Dept. Oct. 13, 2015) –
Contract that provided that the “sole remedy” for
misrepresentations or breaches of warranty was “to cure [the
defect or breach] or repurchase” the loan. The cure or repurchase
remedy was impossible (because the loans had been liquidated or
foreclosed). The “sole remedy” provision would “leave plaintiffs
without a remedy.” The court applied an equitable exception to
the contractual limitation on remedies (which is generally
enforceable under freedom of contract). This is similar to UCC
section 2-719, Comment 1 provision that there should be a
“minimum adequate remedy.”
- Le Metier Beauty Investment Partners LLC v. Metier Tribeca, LLC,
NYLJ 1202719289123 (Sup.Ct. App/ Div. 2015) – The enforceability
of a defective non-reliance clause was evaluated as a
- MEG Holdings, LLC v. Sapphire, _ NY _ _ (NY Sup Ct 2015) – for an
indemnity to cover two-party claims it must ‘unequivocally’ do so.
- ACA Financial Guarantee v. Goldman Sachs & Co, _ NY _ (2015) –
Recipient of misrepresentation that has ‘peculiar’ knowledge must
investigate before reasonably relying.
- Jimenez v. 24 Hour Fitness USA, Inc., _ Cal.App.4th _ (2015) –
Prospective release may not release gross negligence or worse and
nonverbal gestures may constitute a ‘representation.’
- Heckart v. A-1 Self Storage, Inc., _ Cal.App.4th _ (2015) - Storage
unit rental agreement, which provided for allocation of liability for
damage or loss to stored property, was not ‘insurance’. The
principal object of the rental agreement was the rental of storage
space and thus the storage facility did not engage in the
unlicensed sale of insurance.
- Starbrands Capital v. Original MW, Inc., _ F.Supp.3d _ (D. Mass.
2016) – A contractual Indemnity clause should be interpreted to
give effect to intention of parties and thus should not be
interpreted to be limited to third party claims. A party to contract
is prohibited as a matter of public policy from indemnifying itself
or exempting itself from liability for its grossly negligent conduct
or intentional misconduct. The reason for the prohibition is that
permitting parties to limit their liability contractually for gross
negligence or intentional torts “could fail to adequately
disincentivize, punish, or compensate for wrongful conduct.” The
prohibition applies to limited as well as total releases from liability
and it applies to contractual as well as tort claims.
- Alcoa World Alumina LLC v. Glencore Ltd., C.A. 15C-08-032 EMD
CCLD (Del. Superior Court February 8, 2016) – Indemnification
agreements are construed “strictly” against the indemnitee. The
indemnification provisions of the 1995 Agreement did not
expressly indemnify for “contractual liability” generally or the
1989 Agreement specifically. An indemnification agreement must
have an “unequivocal undertaking” before there is an obligation
to indemnify for a contractual liability that the indemnitee has
assumed from the indemnitor. An agreement to hold the
indemnitee “harmless” does not satisfy this requirement for any
and all claims is insufficient to meet this test.
- Trueblue, Inc. v. Leeds Equity Partners IV, LP, 2015 WL _ (Del. Ch.
2015) – A stock purchase agreement included a non-reliance
provision. The seller made a pre-contractual promise that the
agreement did not include. The non-reliance provision and the
agreement’s integration provision did not preclude a claim for
promissory fraud because the non-reliance provision excluded
claims by the buyer for “actual fraud”. A claim for noncontractual
fraud could be excluded only by an “explicit and
unambiguous” non-reliance provision.
E. Choice of Law and Forum
- Brown & Brown v. Johnson, _ NY _ _ (NY 2015) – Contractual choice
of law provision will be upheld unless application of the chosen
law would be ‘truly obnoxious.’
- Verdugo v. Alliantgroup, L.P., 187 Cal. Rptr. 3d 613 (Cal. App. 2015),
_ Cal.App.4th _ (2015) - Court refused to enforce a Texas choice-offorum
clause because the court concluded that a Texas court was
more likely to enforce the Texas choice-of-law clause than would
be a California court, thus resulting in the complaining party’s loss
of important California rights. The court noted that the party
seeking to enforce the choice-of-forum clause argued that the
Texas court was not likely to enforce the Texas choice-of-law
clause. The court did not accept that argument.
- Verdugo v. Alliantgroup, L.P., _ Cal.App.4th _ (2015) – Court does
not enforce forum selection clause for another state because that
state applicable law would have effect of waiving unwaivable
provision of California labor law.
- DirecTv, _ U.S. _ (2015) - An agreement had a California choice-oflaw
clause and a pre-Concepcion arbitration provision. Under
California law on the date of the agreement the arbitration clause
was unenforceable under California law wiped out by
Concepcion. A California appellate court, as a matter of California
contract law, held that the California choice-of-law clause meant
that the parties intended to apply California law as it
(purportedly) existed on the date of the agreement, even though it
turned out that California law on arbitration was not effective on
that date (as subsequently explained in Concepcion). Thus the
California court held the arbitration clause unenforceable under
California cases abrogated by Concepcion. The U.S. Supreme
Court acknowledged that it had no place expressing its views on
California contract law. But the Supreme Court found the
‘reasoning’ so lacking that the Supreme Court held that the
California decision was an ‘obstacle’ to the implementation of the
federal policy in the Federal Arbitration Act and thus the Supreme
Court held that the FAA preempted the result reached by the
California court. The Court emphasized that lower courts have to
follow the Supreme Court’s decisions and cannot get around
national policy by tricky state law doctrines.
- In re County of Orange, _ F3d _ (9th Cir 2015) – federal courts sitting
in diversity to import, as the federal rule, state law governing jury
trial waivers when state law is more protective than federal law of
the jury trial right.
- Utilipath, LLC v. Hayes, A., _ (Del Chan 2015) – Non-exclusive
forum clause precludes objection to forum.
- In re Libor-Based Financial Instruments Antitrust Litigation, _
F.Supp.3d _, 2015 WL 4634541 (S.D.N.Y. 2015) – The court
addressed concepts of general jurisdiction and specific
jurisdiction. In particular, concluded that specific jurisdiction had
to be based on acts in the jurisdiction that included the wrongful
acts. Court also considers whether forum selection clause operates
as consent to jurisdiction and whether ‘related to’ language in
clause applies to tort claims ‘related to’ the contract.
- McDonald v. Whitewater Challengers, _ A _ (Pa. Superior Court 2015)
– The place of accident governs contract under choice of law and
exculpatory clause enforced.
- Gucci America, Inc. v. Li, _ F.3d _ (__ Cir. 2015) – Court cannot
assert general jurisdiction over foreign financial institution with
local branch in absence of formation locally or principal office
- Ascension Insurance Holdings LLC v. Underwood, _ A. _ _ (Del.Ch.
2015) – Under Restatement of Conflict of Laws (Second) § 187, a
choice-of-law clause providing for the application of Delaware law
to a covenant not to compete will not be enforced where
- BNSF Railway Company v. Superior Court for the County of Los
Angeles (Kravoletz), _ Cal.App.4th _, 185 Cal. Rptr. 3rd 391 (2015) -
A very large railway company was held not subject to the general
jurisdiction of California courts, even though it had very
significant operations in California, because its California
operations were small compared to its operations in other
- Cardoni v. Prosperity Bank, _ F.3d _ (5th Cir. 2015) - Employment
contracts contained Texas forum-selection and choice-of-law
clauses, as well as noncompetition and nonsolicitation covenants
that were valid under Texas law. Applying Section 187 of the
Restatement (Second), the court found that, in the absence of the
choice-of-law clauses, Oklahoma law would govern the contracts,
and then compared the policies of the two states – ‘Texas’s view
which prioritizes parties’ freedom to contract and Oklahoma’s
which emphasizes the right to earn a living and competition.’ The
Court found that that Oklahoma had a greater interest in applying
its law than Texas. The court examined the third prong of Section
187(2), which is whether the application of Texas law would
violate a ‘fundamental policy’ of Oklahoma. The court answered
‘yes’ with regard to the noncompetition covenants and ‘no’ with
regard to the nonsolicitation covenants.
- Verdugo v. Alliantgroup, L.P., _ Cal.App.4th _ (2015) - The
implicated provisions were unwaivable.
- Swan v. Santander Consumer USA, 2015 WL 1242767 (D. Md. 2015) –
The debtors on a car loan were required to arbitrate, on a non-class
basis, their claims against the secured party for violation of the
Credit Grantor Closed End Credit provisions of the Maryland
Commercial Law Code because the arbitration clause in the
security agreement gives each party the right to impose arbitration
and thus is not substantively unconscionable.
- Taylor v. Santander Consumer USA, Inc., 2015 WL 5178018 (D. Md.
2015) – The debtors on a car loan were required to arbitrate their
claims against the secured party for violating the Maryland
Commercial Law Code in repossessing their vehicles because the
debtor’s purchase orders, which contained the arbitration clause,
had to be read together with simultaneously executed retail
installment contracts. Although the arbitration allows the secured
party to bring some claims in court, those exceptions did not
invalidate the clause.
- Conway v. Done Rite Recovery Services, Inc., 2015 WL 1989665 (N.D.
Ill. 2015) – A debt collector that allegedly violated the Fair Debt
Collection Practices Act and several state statutes could invoke the
arbitration clause in agreement between the borrower and the
secured party because the clause covered ‘any third party
providing any good or services in connection with the origination,
servicing and collection of amount due under the Contract.’
- Martinez v. Bloomberg, 740 F.3d 211 (2d Cir. 2014) – Federal law
determines the enforceability of a choice-of-court clause choosing
- Lorely Financing v. Wells Fargo, _ F.3d _ ( Cir. 2015) - Klaxon choiceof-
law rule (Federal court applies state choice-of-law rule in
diversity cases) should also apply when the Federal court’s
jurisdiction is based on a Federal question, but the court is also
considering state law claims. New York law of disclaimers
requires that the disclaimer ‘contain explicit disclaimers of
particular representations that form the basis of the fraud claim’.
- Hayes v. Delbert Services Corporation, _ F.3d _ (4th Cir. 2016) – A
loan agreement provided that it was “subject solely to the
exclusive laws and jurisdiction of the Cheyenne River Sioux
Tribe.” It went on to provide that it was not “subject to the laws of
any state of the United States of America.” The Court held that
the provision was unenforceable. It distinguished Italian Colors on
the basis that the Supreme Court in Italian Colors said that an
arbitration clause could not waive the claim itself (there an
antitrust claim), although it could make pursuing it really hard. In
this case, the arbitration clause waived the claim itself (arising
under Federal law) by purporting to say that Federal law did not
apply (in the guise of a choice of law clause). It would have been
as if the arbitration clause in Italian Colors said that the antitrust
laws did not apply.
- FdG Logistics LLC v. A&R Logistics Holdings, 2015 WL _ (Del. Ch.
2016) – A choice-of-law clause based on the Delaware statute
supplants the rule of Restatement of Conflicts of Law (Second) sc 187
by satisfying the various requirements of that section. It does not
bring into play all of Delaware statutory law that would not
otherwise apply (such as state securities law). It does include tort
claims relating to the enforcement of the agreement. The
contract’s non-reliance clause was not sufficiently “specific” and
“clear” to rule out pre-contractual statements. The court
emphasized that the person asserting a claim based on a
misrepresentation should affirmatively state what it has and has
not relied upon. It was not sufficient for the seller to disclaim
making other representations.
F. Damages and Remedies
- Mahlum v. Adobe Systems Incorporated, _ F.Supp.2d _ (N.D. Calif.
2015) – An early termination fee is not ‘liquidated damages’ and
thus not analyzed to determine if it’s a ‘penalty’.
- Phillips v. Carlton Energy Group, LLC, SW _ (Texas 2015) – Lost
profits damages must be proven with ‘reasonable certainty.’
- Agam v. Gavra, _ Cal.App.4th _ (2015) – Plaintiff has burden of
proof to show expenses arising from breach and defendant has
burden to show that losses would have occurred anyway.
- Diaz v. Kulber Corporation, _ F.3d _ (9th Cir. 2015) – Creditor may
recover prejudgment interest under California law if the debt in
question was certain or capable of being made certain at that time.
- PNC Bank, Nat. Ass’n v. Wolters Kluwer Financial Services, Inc., _
F.Supp.3d _ (SDNY 2014) – Evaluates whether damages are
‘consequential’ or ‘direct’ and enforces exclusion of ‘consequential’
- Calandrillo v. GoDaddy, _ NJ _ (NJ Superior Court 2015) – Economic
loss doctrine applies where claim essentially seeks economic
damages and relationship is contractual.
- CHMM v. Freeman Marine Equipment, _ F.3d _ ( 9th Cir. 2015) –
Discusses the ‘other property’ exception to the economic loss
doctrine. The case concerned whether property added to a ship by
the buyer before delivery was ‘other property’. The Court,
applying California law, held that it was ‘other property’,
summarizing the rule as follows: ‘Where the manufacturer of a
product had no responsibility for manufacturing or assembling
items that the user adds to the product, the user-added items are
considered “other property” for purposes of the economic loss
doctrine.’ The Court pointed out that the seller’s warranty would
not typically apply to the buyer-added property, so that it was fair
to allow the buyer to bring an action in tort for damage to the
buyer-added property, which would not be an ‘end run’ on
- In Re Borsos, (Bankr. E.D.Calif. 2016) – A judgment debtor filed for
bankruptcy. The creditor commenced a proceeding in the
Bankruptcy Court to declare the debt nondischargeable. Under
then existing law, the court ruled that the debt was
nondischargeable and for that reason allowed the creditor to
garnish the wages of the debtor, which it did ($15,000). The
Supreme Court then ruled (in a different case) on an issue that
prompted the Bankruptcy Court to reverse its earlier judgment of
nondischargability. The debtor then sought restitution of the
amounts that had been garnished. Citing to Restatement (Third) of
Restitution sc 18, the court awarded restitution, for property taken
based on a judgment subsequently reversed.
- Boston LLC v. Juarez, _ Cal.App.4th _ (2016) – A lease, as a contract,
may be terminated only for a “material” breach. A “trivial” or
“technical” breach is not sufficient. This is so even if the contract
provides that a non-material breach is sufficient to allow the
termination of the contract.
- Lexel Imaging Systems, Inc. v. Video Display Corp, 2015 WL 403140
(E.D.Ky. 2015) – Scope of arbitration clause does not require
arbitration to determine if ‘default’ exists before secured party
- Kaveny v. OneMain Financial, Inc., 2015 WL 3491528 (Ill. Ct. App.
2015) – An arbitrator should have decided whether the debtor’s
action against his secured party for violating the Illinois Vehicle
Code by failing to release its lien and deliver a clean certificate of
title within 21 days of when the secured obligation was paid off
fell within the scope of the parties’ arbitration clause, which
exempted from its scope exempts actions ‘to the extent necessary
to obtain a judicial order for the purpose of . . . establishing,
perfecting or clearing title, with respect to an interest in property.’
However, the court had to determine whether the defendant was
covered by the arbitration clause, which extended to the initial
secured party and ‘its past, present or future respective parents,
subsidiaries, affiliates, predecessors, assignees, [and] successors.’
- Berent v. CMH Homes, Inc., 466 S.W.3d 740 (Tenn. 2015) – While a
one-sided arbitration clause can be unconscionable, a clause that
required arbitration of all claims except those falling within the
jurisdiction of small claims court and the seller’s claims to enforce
its security interest or to seek preliminary relief was not
unconscionable because the seller provided a business justification
for the limited exception for foreclosure proceedings.
Consequently, the debtor’s claims against the seller for breach of
contract, fraud, and violation of the Tennessee Consumer
Protection Act were subject to arbitration.
- Machado v. System4 LLC, Mass _ (Mass. 2015) – Court permitted a
nonsignatory to bind a signatory to an arbitration agreement.
- Pershing v. Bevis (Texas 2015) – no agreement to arbitrate.
- In re County of Orange, 784 F. 3d 520 (9th Cir. 2015) - Court held
that the federal rule on jury waivers to be a constitutional
minimum and incorporated into federal law California’s more
protective law on jury waivers. The declined to enforce the jury
- Atalese v. U.S. Legal Services Group, L.P., A. _ (2014) – Arbitration
clause not enforceable unless clearly discloses waiver of right to
- Sanford v. Bracewell & Guiliani, LLP, _ F.3d _ ( 3rd Cir. 2015) – A
person that seeks to enforce a contract is equitably estopped from
opposing enforcement of an arbitration clause in that contract by
the other party.
- Sanchez v. Valencia Holding Co., LLC, _ Cal. 3d _ (2015) – After
Concepcion, FAA allows unconscionability evaluation if not
directly concerning arbitration. Substantive unconscionability
does not protect against ‘bad bargain.’
- Williams v. Superior Court, _ Cal.App.4th _ (2015) – Because Private
Attorney General Claim ‘innures’ to state under Iskanian, PAGA
claim cannot be split into personal and non-personal aspects and
none are arbitrable.
- Conway v. CLC Bio, LLC, _ NE _ _ (Mass. App. 2015) – Arbitrator
has broad discretion to review scope of arbitration and under
Italian Colors may decide statutory claims.
- Royston, Rayzor v. Lopez, _ SW _ _ (Texas 2015) – Texas Supreme
Court enforces an arbitration provision. It holds that a largely
one-sided provision is not unconscionable (by characterizing the
one-sidedness as a scope provision).
- Natalini v. Import Motors Inc., _ Cal.App.4th _ (2015) (unpublished)
- Party seeking arbitration must prove the existence of an
agreement to arbitrate.
- Lexel Imaging Systems, Inc. v. Video Display Corp., _ F.Supp.3d _,
2015 WL 403140 (E. D. Ky. 2015) - Scope of arbitration clause does
not require arbitration to determine if ‘default’ exists before
secured party exercises self-help.
- Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, _ F.3d _ (3d Cir.
2016) – The availability of class arbitration constitutes a ‘question
of arbitrability’ to be decided by the court – and not the arbitrators
– unless the parties’ arbitration agreement ‘clearly and
unmistakably’ provides otherwise. Ordinary state law rules of
contract interpretation are modified to include that requirement in
- Credit Suisse Securities (USA) LLC v. Tracey, No. 15-345-Cv, _ F.3d _
(2d Cir. January 28 2016) – FINRA rules do not prevent predispute
agreement to arbitrate before a non-FINRA forum.
- Katz, Nannis & Solomon, P.C. v. Levine, __ NE __ (Mass SJC 2016) –
The parties to a contract cannot vary by agreement the grounds for
judicial review of an arbitration decision under the Massachusetts
- Case Del Caffe Vergnano S.P.A. v. Italflavors LLC, _ F.3d _ (9th Cir.
2016) - Enforceability of a contract that includes an arbitration
clause is determined under Federal law, which applies “general
principles” of contract law, usually as stated in the Restatement of
Contracts (Second). Applying those principles, the court held that
the contract was unenforceable because a simultaneous agreement
between the parties said that the contract that included the
arbitration agreement was of no effect. Thus the court concluded
that that contract was a “sham.”
H. Personal Jurisdiction
- Insurance Corp. of Ireland v. Compagnie Des Bauxites de Guinee, 456
U.S. 694 (1982) – Requirement of personal jurisdiction represents
an individual right and can be waived.
- Daimler Ag 27 v. Bauman, 134 S. Ct. 746, 754 (2014) – Defendant’s
affiliations with the forum must be “so ‘continuous and
systematic’ as to render them essentially at home” in the forum
(quoting Goodyear, 131 S. Ct. at 2851).
- In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.
3d 716 (9th Cir. 2013) – A lawsuit arises out of a defendant’s
contacts with the forum state if a direct nexus exists between those
contacts and the cause of action (“but for” test).
- Martinez v. Aero Caribbean, 764 F.3D 1062 (9th Cir. 2014) – Service
of process on a corporate officer temporarily present in the State
may not be sufficient to establish general personal jurisdiction
over the corporation.
- Daimler Ag v. 25 Bauman, 134 S. Ct. 746 (2014), – “[A] corporation
can purposefully avail itself of a forum by directing its agents or
distributors to take action there.”
- Walden v. Fiore, 134 S. Ct. 1115 (2014) – In the tort context, specific
jurisdiction may be “based on intentional conduct by the
defendant that creates the necessary contacts with the forum.”
- New Earthshell Corp. v. Lycos Internet Ltd., 2015 WL 170564 (D.N.J.
2015) – A secured party that had a pending action in New York
against the debtor, a Delaware entity with its principal place of
business in California, and several foreign entities was not entitled
to a preliminary injunction in a New Jersey action against
commingling or transferring any portion of the collateral with
other revenues, accounts receivable or the proceeds because it was
not clear that the court had personal jurisdiction over the
defendants. There was no allegation that the defendants knew
that the secured party’s principal place of business was in New
Jersey or that they made any contact with the secured party in
New Jersey. The allegation that defendants improperly took
possession of the collateral arises out of transactions among the
defendants, Israeli and Indian entities, that did not involve the
secured party, were negotiated and executed in Israel, are
governed by Israeli law, and are subject to the jurisdiction of
- Brown v. Lockheed Martin Marietta Corporation, _ F.3d _ (2d Cir.
2016) – State does not have general personal jurisdiction over
corporation registered to do business in the state where the
corporation does significant business in the state. Registration is
not consent to jurisdiction and corporation is not “at home” in the
state where it is not formed under the law of that state nor does it
have its chief executive office in that state.
- Americold Realty Trust v. Conagra Foods, Inc., _ U.S. _ (2016) – A real
estate investment trust is a citizen of the state of its shareholders
and members for purposes of diversity jurisdiction.
X. Other Laws Affecting Commercial Transactions | Table of Contents