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Choice of Law: CA Court Strikes Down Florida Clause
Burgo v. Lady of America Franchise Corp., CCH Bus. Franchise Guide '13,367 (C.D. Cal. May 4, 2006) addresses choice of law clauses that often come into effect in franchisor-franchisee disputes. Twenty-two franchises of this women's fitness franchise filed suit in a California federal court against the Florida-based franchisor ('LOA') and its Florida-based president ('Wittenberns') for violations of the California Franchise Investment Law ('CFIL') and the California Unfair Trade Practices Act, common law fraud, and violations of the Florida Deceptive and Unfair Practices Act, and the Florida Franchise Misrep-resentation Act ('FFMA'). The franchise agreement contained a choice of law clause, which provided that the agreement and 'the relationship created thereby' would be 'construed and governed solely by internal Florida Law, without regard to any conflict of laws rules.' LOA moved to dismiss the complaint for failure to state a claim, and Wittenberns moved to dismiss for lack of in personam jurisdiction.
The plaintiffs argued that the court had in personam jurisdiction over Wittenberns by virtue of the provisions in the CFIL ('31302, Cal. Corp. Code) that impose liability on corporate officers who are controlling persons. The court held that it was not enough to rely on the liability provisions of the CFIL, since they were premised on the existence of in personam jurisdiction, citing Thomson v. Anderson, 113 Cal. App. 4th 258, 267-70 (2003), and did not create it. Since Wittenberns had insufficient minimum contacts with California, he was dismissed for lack of jurisdiction.
LOA did not fair so well. While the court undertook the traditional choice of law analysis mandated by the California Supreme Court in Nedlloyd Lines B.V. v. Superior Court, 3 Cal.4th 459 (1992), what tipped the balance was the 'non-waiver' provision found in '31512 of the California Corpora-tions Code. That provision, similar to non-waiver clauses in other state franchise laws, provided: 'Any condition, stipulation or provision purporting to bind any person acquiring any franchise to waive compliance with any provision of this law or any rule or order hereunder is void.'
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.