Contracts and Commercial Law

    • 27 Aug 2015

    What Are the Elements of Breach of Implied Covenant of Good Faith and Fair Dealing in New Jersey?

    In addition to the express terms of a contract, “every contract in New Jersey contains an implied covenant of good faith and fair dealing.” Sons of Thunder, Inc. v. Borden, Inc. , 690 A.2d 575, 587, 148 N.J. 396, 420 (N.J. 1997) [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance ]; see also Onderdonk v. Presbyterian Homes of New Jersey , 425 A.2d 1057, 1062, 85 N.J. 171...
    • 23 Jul 2015

    Is the Mechanic’s Lien or Bond Waiver Clause in Your Contract Enforceable in Virginia?

    by W. Alexander Burnett A new Virginia law invalidates any mechanic’s lien or payment bond waiver signed before work has commenced. The Governor recently signed new legislation into law, effective July 1, 2015, that invalidates waivers of subcontractors’, sub-subcontractors’ and suppliers’ mechanic’s lien and payment bond rights if executed before the waiving lien claimant has begun...
    • 22 Jul 2015

    The Fifth Unstated Element of Tortious Interference Claims

    Most Virginia litigators will tell you that there are four elements to a claim of tortious interference with contractual relations in Virginia: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant...
    • 17 Jul 2015

    What Are the Elements of an Account Stated in New York?

    “Under federal and New York law, an account stated ‘refers to a promise by a debtor to pay a stated sum of money which the parties had agreed upon as the amount due.’ ” National Econ. Research Assocs., Inc. v. Purolite “C” Corp. , No. 08 Civ. 7600, 2011 U.S. Dist. LEXIS 24458, at *6 (S.D.N.Y. Mar. 10, 2011) (citations omitted); accord Lankler Siffert & Wohl, LLP v. Rossi , 287 F...
    • 28 Apr 2015

    The Egg Salmonella Sentencing: an Exercise in Imagination

    Indulge me for just a moment in an exercise in whimsy. Except as will be expressly described below, any resemblance to real persons or substances, living or dead, is purely coincidental. Imagine if you will that in the processing of a particular foodstuff, unless care is taken during certain steps, the foodstuff will provide the consumer with a mild hallucinogenic experience. The risk of this is well-known in the industry...
    • 20 Apr 2015

    Professor Margit Livingston on Attorneys' Fees as Collateral under U.C.C. Article 9

    Article 9 of the Uniform Commercial Code permits many different types of property to serve as collateral—both tangible and intangible. Sometimes law firms find themselves in need of funds to support their efforts on behalf of clients and may seek an operating loan secured by prospective fees. This scenario is especially likely where the firm enters into contingent fee arrangements with clients, such as in medical...
    • 5 Mar 2015

    When to Call the Whole Thing Off

    People who aren’t intellectual property lawyers often mix up trademark, copyright, patent and trade secret protection. Each provides a different kind of protection for a different kind of property interest, and they generally don’t overlap. There are also different protections awarded under federal and state (and sometimes foreign) law for different forms of intellectual property, requiring some serious navigation...
    • 3 Mar 2015

    US Supreme Court: Tax Injunction Act Does Not Bar Suit Over Sales Tax Procedures

    WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on March 3 held that a retailers trade association lawsuit challenging the constitutionality of a Colorado tax law, which requires retailers to notify customers of uncollected sales tax on mail order and Internet purchases, is not barred by the Tax Injunction Act of 1937 (TIA) because the lawsuit does not “‘restrain’ the ‘assessment...
    • 26 Feb 2015

    Delaware Court of Chancery Rejects Request for Specific Performance of Oral Agreement

    Pulieri v. Boardwalk Properties, LLC , C.A. No. 9886-CB (Del. Ch. Feb. 18, 2015) [ an enhanced version of this opinion is available to lexis.com subscribers ]. This Court of Chancery decision provides a primer on specific performance, unjust enrichment, laches and the rule against perpetuities, and also provides another reminder, as if any reminder was needed, that oral agreements are difficult to enforce, especially...
    • 7 Jan 2015

    POM Wonderful’s Belated Christmas Gift

    On December 30, the Ninth Circuit Court of Appeals handed POM Wonderful a belated Christmas gift, and an unusual one at that. It reversed the denial of a preliminary injunction in a case it had brought against PUR Beverages, a d/b/a of Robert G. Hubbard, Jr., and the marketer of a beverage called “pŏm”. According to their website , Pur Pom is a great tasting Pomegranate drink that refreshes and energizes...
    • 4 Dec 2014

    FDA’s New Menu Labeling and Vending Machine Requirements: 10 Key Answers For Food Businesses

    by Scott W. Pink and Barry M. Heller The Food and Drug Administration has finalized its rules requiring that calorie information be listed on menus and menu boards of chains with at least 20 units operating under the same name and in connection with vending machines with at least 20 locations. The new rules are part of the federal government’s effort to fight obesity and will apply nationwide and preempt existing...
    • 11 Nov 2014

    The U.S. Loses Its COOL. Again.

    As you have probably read, the United States lost another round in its fight with Canada and Mexico in front of the World Trade Organization (“WTO”) over country of origin labeling (“COOL”) rules relating to beef and pork. Unless an appeal is upheld, or our rules change, Canada and Mexico will have the right to retaliate against other U.S. products with restrictions of their own. Reading the...
    • 22 Oct 2014

    Federal Court Limits Tribe’s, Secretary’s Options When State Balks at Gaming Compact

    by Christine Swanick and Wilda Wahpepah A federal district court in New Mexico has issued a decision finding that the U.S. Department of the Interior’s regulations permitting the Secretary of the Interior to adopt Class III gaming procedures for a tribe lacking a Tribal-State Compact are invalid and violate the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et . seq . (“ IGRA ”). If upheld...
    • 17 Oct 2014

    This Email Isn’t Worth the Paper It Isn’t Written On

    You know the old expression, variously attributed to Samuel Goldwyn and others , “ a verbal contract isn’t worth the paper it’s written on.” In fact, of course, unless the statute of frauds applies, an oral contract is as good as any other contract. And an email contract, under E-SIGN, the Electronic Signatures in Global and National Commerce Act , 15 U.S.C. ch. 96, and UETA, the Uniform Electronic...
    • 30 Sep 2014

    Virginia Won't Allow You to Blue-Pencil That Non-Compete

    In Virginia, covenants not to compete (a.k.a. non-competition agreements or simply "noncompetes") are considered restraints on trade and are therefore disfavored in the law. Unlike California, which prohibits them outright , Virginia will enforce such agreements if (and only if) they (1) satisfy the general principles of contract formation and enforceability, and (2) are no broader than necessary to protect...
    • 28 Aug 2014

    Professor Margit Livingston on The Debtor's Name on a U.C.C. Article 9 Financing Statement: In re Patriot Electric & Mechanical, Inc.

    Much time, energy, and thought has been spent in refining UCC provisions regarding the correct debtor name for a financing statement and the amount of latitude that should be allowed for minor errors. Article 9 was revised in 2010 in part to address these troublesome issues. With the first cases under this new law now starting to appear one wonders, did it work? What do you think? Read this commentary and find out. ...
    • 15 Aug 2014

    Professor Margit Livingston on Consignments under U.C.C. Article 9

    Excerpt: Consignments are typical in the art world. The owner of a painting who wishes to sell it will often consign it to an art gallery for exhibit to the public. The gallery will be empowered to sell the painting on behalf of the owner, usually at a predetermined minimum price. Upon sale of the painting to a customer, the gallery will remit the sale proceeds to the owner, retaining an agreed upon percentage of the...
    • 30 Jul 2014

    Optional Liquidated Damages Clause Held Unenforceable

    Liquidated damages are damages the amount of which has been agreed upon in advance by the contracting parties. When a contract contains a liquidated-damages provision, the amount of damages in the event of a breach is either specified, or a precise method for determining the sum of damages is laid out. This is often done in situations where the parties agree that the harm likely to be caused by a breach would be difficult...
    • 28 Jun 2014

    New York "Big Gulp" Ban Bites It For Good

    The New York Court of Appeals has ruled in the case of Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health & Mental Hygiene to strike down, permanently, New York City's attempted ban on sugar-based beverages in containers larger than 16 ounces [ an enhanced version of this opinion is available to lexis.com subscribers ]. As we suggested when the case was just before the Supreme...
    • 29 May 2014

    VPN and Pizza: The Right Way To Deal with Food Claims

    An article in Thursday's Wall Street Journal reminded me of a point I’ve been trying to make for years but didn’t have a good hook to do so. Now that this idea is in print, I do, so here goes. The article concerns a group called Associazione Verace Pizza Napoletana , which gives pizzerias certificates called VPN or Vera Pizza Napoletana. Tutta Bella , a pizzeria located just a few blocks from my house...
    • 28 May 2014

    Professor Margit Livingston on Legal Malpractice for Failure to File a U.C.C. Article 9 Financing Statement

    Every secured party's nightmare is the realization that it forgot to file a financing statement in the appropriate public office to perfect its security interest. Sometimes that nightmare extends to the secured party's attorney, who may find herself facing a legal malpractice claim for failing to properly perfect a client's security interest. Without perfection, a security interest is subordinated to many...
    • 7 May 2014

    A Cereal. A Rabbi. A Peppercorn.

    What can you say about an internet contracting strategy that died? I’m referring, of course, to General Mills’ abortive attempt to include new terms of service on all its internet and social media products, including an agreement to arbitrate and to waive any right to a class action, that came and went so fast I couldn’t blog about it until it was over. If you’re on Facebook or Twitter, you...
    • 21 Apr 2014

    U.S. Supreme Court Hears Oral Arguments in False Advertising Case

    WASHINGTON, D.C. — (Mealey’s) An attorney for The Coca-Cola Co. told the U.S. Supreme Court today that a dispute over the veracity of a fruit juice label does not fall within the purview of the Lanham Act ( POM Wonderful LLC v. The Coca-Cola Co. , No. 12-761, U.S. Sup.; See 1/21/14, Page 4) [lexis.com subscribers may access Supreme Court briefs for this case . Instead, according to Kathleen M. Sullivan...
    • 21 Apr 2014

    Pom Wonderful Brings Food Labeling Dispute to the U.S. Supreme Court: When Are Claims Based On Allegedly Improper Product Labeling Barred by the Food, Drug, and Cosmetic Act?

    by Claudia M. Vetesi and Lisa A. Wongchenko A long-standing false advertising dispute between beverage companies Pom Wonderful and Coca-Cola has reached the United States Supreme Court and carries far-reaching implications for other food labeling litigation. On January 10, 2014, the Supreme Court granted certiorari in Pom Wonderful LLC v. The Coca-Cola Co. , 679 F.3d 1170 (9th Cir. 2012) [ an enhanced version of this...
    • 11 Apr 2014

    West Virginia Bank Wins Dismissal of Contract Claim for Lack of Personal Jurisdiction

    Virginia's long-arm statute extends personal jurisdiction to the fullest extent permitted by due process. A Virginia court may exercise specific jurisdiction over a defendant when the defendant has sufficient minimum contracts with Virginia such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . To establish "minimum contacts," a plaintiff must show...