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California Supreme Court Strikes Down Jury Waiver Clauses
The California Supreme Court has thrown a wrench into the California trial courts' long-accepted practice of enforcing contractual jury waivers by holding that such pre-dispute waivers do not effectively supersede a party's constitutional right to a jury trial. The court's conclusion is not surprising given the express provisions of the California Constitution, but it nonetheless sent a shockwave through the finance and leasing community.
In a unanimous opinion, the California high court held in Grafton Partners v. Superior Court (PricewaterhouseCoopers), [2005 DJDAR 9387 (Cal. Aug. 4, 2005)] that in the absence of any legislation expressly permitting parties to waive their constitutional right to a jury trial prior to the commencement of a lawsuit, pre-dispute jury waivers contained in contracts cannot be enforced by California trial courts. When parties to a contract have their disputes resolved in the courts of California, the California Constitution accords them the right to a jury trial, which can only be waived “by consent of the parties expressed as prescribed by statute.” (Cal. Const. art. I '16.) After considering the arguments of defendant PricewaterhouseCoopers, as well as the arguments presented in amicus briefs filed by 11 different organizations in favor of jury waivers, that California Code of Civil Procedure section 631 permits pre-dispute contractual jury waivers, the high court, applying established rules of statutory interpretation, found section 631 applies only to jury waivers made after a dispute arises between the parties and does not prescribe a method or right to waive a jury trial prior to a dispute arising between the parties.
PricewaterhouseCoopers was not alone in its position. It had relied on a 1991 California Court of Appeal opinion upholding a pre-dispute jury waiver under Section 631 and was supported in the California Supreme Court review by numerous organizations, including the Commercial Finance Association, the California Bankers Association, the California Mortgage Bankers Association, the Chamber of Commerce of the United States of America, the California Chamber of Commerce and the American Institute of Certified Public Accountants.
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 Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.