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Emfore v. Blimpie: License to Commit Fraud or Common-Sense Decision?
Better ingredients, it is said, make for a better pizza, and, as Emfore Corp. v. Blimpie Associates, Ltd. (N.Y. Sup. Ct. Sept. 18, 2006) suggests, better documents make for better decisions, at least if you are the franchisor.
The facts of Emfore are unremarkable in that most of us have come across similar situations in our careers. Plaintiffs franchisees want to buy a franchise. During the course of the sales negotiations, defendant franchisor's sales representatives toss out various numbers, presumably to whet the interests of the prospective purchasers. In this case, the numerical representations were in some cases puffery, and in other cases factual. In any event, franchisees buy the franchise, fail, and then bring suit claiming that they were defrauded in the sales process. Franchisor points out that the documents contain an integration clause, making reliance on these outside-the-document representations inherently suspect. Generally, franchisor wins.
In Emfore, there are two added twists. First, besides being able to point to the integration clause as its shield, defendant Blimpie required a separate questionnaire (the 'Questionnaire') to be completed by the prospective franchisee just before signing the franchise agreement. The Questionnaire asked, among other things, who the franchisees had worked with during the sales process, and for the franchisee to confirm that it had not received any 'forbidden fruit' during the sales process. The second twist is that the factual setting for this drama occurred under the directorship of the New York Franchise Practices Act, N.Y. Gen. Bus. Law '687 (McKinney 2006), which contains the following anti-waiver language: 'It is unlawful to require a franchisee to assent to a release, assignment, novation, waiver or estoppel which would relieve a person from any duty or liability imposed by this article.'
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?