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Court Watch
Different Outcomes on Disclaimer, Parol Evidence Cases
Two recent cases in which franchisees alleged fraud and misrepresentation by the franchisor during the sales and disclosure process have illustrated the inconsistent nature of the evidence that certain courts will allow the claimant to present to prove the claims. In February 2006, the U.S. District Court for the Southern District of Florida found that a Lady of America franchisee was not entitled to present parol evidence of allegedly misleading statements made by the franchisor during the sales process because the franchise agreement contained both a merger and integration clause and a 'clear and unambiguous disclaimer' of all such representations made by the franchisor before the execution of the agreement. The court further held that because the allegedly misleading statements were not admissible, the franchisee could not prove that franchisor had violated the Florida Franchise Act or Florida 'little FTC Act.' Lady of America Franchise Corp. v. Malone, 2 Bus. Franch. Guide (CCH) '13,562 (S. D. Fla. Feb. 13, 2006).
Interestingly, in April 2007, the Kentucky Court of Appeals came to the opposite conclusion in a case with similar facts. The Kentucky court found that a RadioShack franchisee was entitled to present evidence of false and fraudulent misrepresentations made by the franchisor's representatives during the sales process because he had reasonably relied upon them in deciding to enter into the franchise agreement. The court held that because the franchisee had shown that the statements were related to easily provable past events, the jury at trial could reasonably find that franchisor's representatives were either intentional or reckless in making the statements, and therefore that their findings in favor of the franchisee were justifiable. RadioShack Corpor-ation v. Comsmart, Inc., 2 Bus. Franch. Guide (CCH) '13,598 (Kent. Ct. App., April 27, 2007).
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.