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Court Watch
Ninth Circuit Opinion Might Shift Many Unconscionability Claims to Arbitrator
In Nagrampa v. Mailcoups, Inc., 40 F.3d 1024 (9th Cir. 2005), Bus. Fran. Guide (CCH) '13,034 (March 21, 2005), the Ninth Circuit decided a case of first impression involving a franchise agreement with a standard arbitration clause: whether the arbitrator or the court decides the question of unconscionability. The answer depends on the nature of the challenge. The arbitration clause in Nagrampa was contained on the 25th page of a 30-page franchise agreement and covered all disputes, although there was a carve-out for intellectual property injunctive relief actions brought by the franchisor.
The agreement also contained a forum selection clause choosing Boston as the venue. Nonetheless, Mailcoups initiated an arbitration in California, which arbitration was thereafter moved, at the franchisee's request, to Boston. After almost a year of arbitrating in Los Angeles and Boston, the franchisee decided she had enough and sued Mailcoups in California, along with the American Arbitration Association (“AAA”), claiming that the franchise agreement was induced by fraud. Mailcoups moved to compel arbitration or dismiss. The franchisee opposed the motion on the basis that the arbitration clause was unconscionable. The district court ruled in favor of the franchisor, and dismissed the case rather than compel arbitration due to the Boston venue clause (see, 9 U.S.C. '4).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?