When does "all" mean all? Parol Evidence and UCC 2-202

Courts sometimes struggle to properly apply the parol evidence rule, particularly when it comes to 2-202. In Qwinstar Corporation v. Anthony, the district court considered application of section 2-202 and its exceptions. Quinstar Corporation (“Quinstar”) contracted to purchase the “all of [the] right, title and interest in and to the” inventory of a competitor, Pro Logistics, LLC (“Pro Logistics”), for $50,000 and to employ its owner, Curtis Anthony (“Anthony”), for five years at $200,000 per year. During negotiations Pro Logistics provided Quinstar an inventory list dated January 2013 showing parts valued over $4.7 million, but the parties did not sign their contract until months later. In the interim, Pro Logistics continued to sell inventory. Quinstar did not make any independent assessment of the inventory.  When a dispute developed a year later over the amount of Pro Logistics parts remaining on hand, Quinstar terminated Anthony’s employment and brought suit for breach of contract, claiming that Pro Logistics breached by not transferring all the assets recorded on the January 2013 inventory list. The district court granted summary judgment to Anthony.  

The Eighth Circuit Court of appeals affirmed as to the inventory, using the parol evidence rule.   The court rejected Quinstar’s arguments that the January 2013 inventory list delineated what “all” inventory purchased meant and found the agreement to purchase “all” of the inventory was “unambiguous,” such that no parol evidence was admissible “to contradict, explain or supplement the terms.”  The court also noted that the contract contained a merger clause “superseding all oral and written proposals, representations, understandings and agreements . . . .”   The court concluded that “all” meant “all inventory he had at the time [the contract] was executed” and that the merger clause applied.  The court observed that “[h]ad the parties wished to define the ‘assets’ to include all parts described in Anthony’s inventory list, they could have incorporated that document into the [contract] by reference.”   

While appearing correct as to result, the court’s analysis of the merger clause doesn't address section 2-202(2)’s standard toward admissibility that permits extrinsic evidence “unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.” The court’s analysis also does not take into account that, under comment 1, a finding that language is “ambiguous” is not even a “condition precedent to the admissibility of course of dealing, usage of trade and course of performance used to explain or supplement the agreement.  Ultimately, this mattered because without the parol evidence “Quinstar  . . .presented no evidence that Anthony failed to deliver the inventory he possessed at the time the [contract] was executed" and was "unable to prove that Anthony breached the contract.”  

Commercial Law Podcasts Now Available Through CALI

Need to brush up on Secured Transactions and Payment Systems basics? Great news.  CALI (Computer Assisted Legal Instruction) is now offering podcasts on a variety of UCC topics.  The podcasts are available on the CALI website, through the Podcast app on most phones (using the Lawdibles channel) and even through Itunes (again Lawdibles). UCC topics include:

• Payment Systems Introduction Podcast
• Payment Systems: Being a Holder in Due Course: Personal Defenses Podcast
• Payment Systems: Being a Holder in Due Course: Real Defenses Podcast
• Payment Systems: Credit Cards Podcast
• Payment Systems: Debit Cards Podcast
• Payment Systems: Effect of the Instrument on the Underlying Obligation Podcast
• Payment Systems: Employer Responsibility Podcast
• Payment Systems: Fiduciary Duty and Liability of Representatives Podcast
• Payment Systems: Fraudulent Signatures, Alterations and Negligence Podcast
• Payment Systems: Holders Podcast
• Payment Systems: Imposters and Fictitious Payees Podcast
• Payment Systems: Indorsement Liability and Transfer and Presentment Warranties Podcast
• Payment Systems: Indorsements Podcast
• Payment Systems: Instruments Signed for Accommodation Podcast
• Payment Systems: Liability of the Parties on a Negotiable Instrument Podcast
• Payment Systems: Negotiable Instruments Vocabulary Podcast
• Payment Systems: Who Can Bring a Claim on a Negotiable Instrument Podcast
• Payment Systems: Who Can Enforce a Negotiable Instrument Podcast
• Payment Systems: Who is a Holder in Due Course Podcast
• Secured Transactions: Priority: Buyers v. Secured Parties Podcast
• Secured Transactions: After-Acquired Property and Future Advances Podcast
• Secured Transactions: Bankruptcy and the Automatic Stay Podcast
• Secured Transactions: Basics Podcast
• Secured Transactions: Debtors’ Names Podcast
• Secured Transactions: Fixtures Podcast
• Secured Transactions: Lapse, Continuation, and Termination of Security Interests Podcast
• Secured Transactions: Perfection of Security Interests Podcast
• Secured Transactions: Possession, Control, and Automatic Perfection Podcast
• Secured Transactions: Priority: Purchase Money Security Interests (PMSI) Podcast
• Secured Transactions: Priority: Sellers v. Secured Parties Podcast
• Secured Transactions: Proceeds and Related Concepts Podcast
• Secured Transactions: Repossession of Collateral Podcast
• Secured Transactions: Scope of Article 9 Podcast
• Secured Transactions: True and Disguised Leases Podcast

Enjoy!

JSM

CFPB Proposal to remove Arbitration clause

Why don't consumers more regularly bring suit against their "bad" bank or debt collector? Standard arbitration clauses buried in consumer contracts often prohibit such suits.  Basically consumer financial companies use a "free pass" arbitration agreement clause to prevent consumers from suing in groups ("class action") to obtain relief.  According to the CFPB Director Richard Cordray "Companies are using the arbitration clause as a free pass to sidestep the courts and avoid accountability for wrongdoing".  Since the financial collapse in 2008, laws and regulations have been put in place to protect consumers but this proposal takes it one step further by giving consumers the ability and the right to fight back.  Currently, the free pass provisions bind customers to the use of individual arbitration to resolve disputes, which can be drawn out and expensive for the consumer.

It may now become much easier for consumer actions to proceed if the Consumer Financial Bureau Protection (CFPB) approves new rules on consumer arbitration agreements.  This proposal was initiated by the Dodd Frank Wall Street Reform and Consumer Protection Act where Congress directed the CFPB to issue regulation geared towards the public interest and for the protection of consumers, including a look at these arbitration practices.  The new rule could allow consumers to pursue a class-action lawsuit.  George Slover with Consumer Union weighed in via USNEWS stating, "This proposal is a tremendous step toward cleaning up a system that has heavily favored companies over consumers who were wronged".   While financial services companies will oppose the move, Even with heavy push back from the Financial companies, it seems CFPB will enforce this proposal as a new regulation.  The Supreme Court decision in DirecTV v. Imburgia, will potentially set up a challenge to new rulemaking by the CFPB in this area.  (see, Troutman Sanders).  DirecTV, a 6-3 decision written by Justice Breyer, held that the Federal Arbitration Act preempted a California law that invalidated arbitration clauses if they contained a prohibition on class-wide arbitration.

The benefits of the CFPB proposal could have long lasting positive effects for consumers by opening up a class action avenue in court and make arbitration more transparent when used against financial institutions and services that use arbitration to shield bad practices that individual consumers cannot fight because the arbitration is prohibitively expensive..  Of course, arbitration proponents also correctly assert that the free pass provisions keep away spurious class actions.  Where the CFPB ultimately lands on this dicey issue is yet to be seen, but expect a big fight on this one with good arguments for and against the free pass.

- L. Regis/JSM

New Student Loan Servicing Guidelines Mandated by CFPB

As of 2015, one in seven student loan borrowers — or about 14 percent — defaulted on their student loans within three years of starting the repayment period after college was reported by the Chicago Tribune.

As the student loan debt seems to have ballooned out of control from 600 billion in 2006 to $1.2 trillion in 2015, the Consumer Financial Protection Bureau (CFPB) has recently reported widespread servicing failures on both the federal and private student loan borrowers.  As the CFPB noted, loan service providers play a vital role in providing borrowers key information about payments and account information. Millions of student borrowers reported to the CFPB the illegal servicing practices employed and the failure to provide the most basic level of services necessary to meet borrower's needs. 

Much of this comes as no surprise to most.  So, will the CFPB take action?  If so, will it be enough?  First, to make the loan process more simplified, the Department of Education in Fall 2016 will open registration three months earlier to allow parents and students to have a true cost of attending college while still in high school. In Sept 2015, the CFPB released the Joint Statement of Principles on Student Loan Servicing, which outlined new guidelines and recommendations that all loan service providers must abide. These recommendations were formed to create consistency, to hold service providers accountable and to help borrowers be more informed about their debt obligations.  At the heart if the Joint Statement is information transparency regarding payment terms that consumers have come to expect under other regulations subject to the Consumer Credit Protection Act.  Transparency has come along way in terms of disclosure with credit cards, for instance.

Improving disclosure in an understandable and meaningful way is not to be understated.  It is one vital step by the CFPB in its advocating for student borrowers, all of whom can be affected by unfair servicing practice and which will now be curtailed.

- JSM and Leighton Regis 

Debit Card Overdraft Problems Not Solved?

When the 2010 Amendments to Regulation E to the Electronic Funds Transfer Act mandated an opt-in  regime for bank overdraft programs for debit cards, the fix seemed a good solution.  See, Jennifer Martin, How Your $4 Coffee Can Cost You $39 or More if You Use Your Debit Card! Federal Level Consumer Protection and Modern Payments Transactions, Memphis L. Rev. (2009).  A July 2014 Study of the Consumer Financial Protection Bureau suggests that the fix may not have worked.  The study found that consumers are still incurring overdraft charges in large numbers and on transactions of $24 or less.  Approximately twenty percent (20%) of those consumers who do opt-in are incurring more than ten annual overdrafts.  The CFPB is looking at new regulation on debit overdrafts.  It would seem that at the least revisions to the model form for such services is likely.  Perhaps a cap on fees might also be warranted on debit overdrafts.

- JSM

Sales - Survey of 2014 Cases

My annual survey of noteworthy sales cases arising under Article 2 during 2014 is now available on SSRN , 71 Bus. Law. (forthcoming Aug. 2015).  There is the usual cadre of good formation cases, such as Grandoe Corp. v. Gander Mountain Co. (formation under section 2-204 based on oral agreement where buyer had its terms and conditions posted on its web site) and Nebraska Machinery Co. v. Cargotec Solutions, LLC (formation under sections 2-206 and 2-207 based upon conduct of delivery, payment and use of engines.  There were also a number of good remedies cases in 2014.  In particular, the case of Peace River Seed Co-Operative, Ltd. v. Proceeds Marketing, Inc. took up the difficult issue of a seller which wants to claim a market-based remedy under 2-708 after a favorable resale.  While the Code is not clear on these types of resales, this case is wrong, as it fails to give full effect to the policy of limited compensation under the Code and the doctrine of mitigation. 

JSM

National Association of Women Lawyers 2015 Selma Moidel Smith Law Student Writing Competition

NAWL has just finalized the announcement for the 2015 Selma Moidel student writing contest. I would like to encourage submission of papers by any law students who may be writing on-topic papers that discuss issues related to women.  The Announcement:

 

The National Association of Women Lawyers (NAWL)^® is a national voluntary legal professional organization whose mission is the advancement of women in the legal profession and women’s rights. Since 1899, NAWL has served as an educational forum and active voice for the concerns of women lawyers in this country and abroad.  NAWL continues to support and advance the interests of women in and under the law, and in so doing, supports and advances the social, political, and professional empowerment of women. Through its programs and networks, NAWL provides the tools for women in the profession to advance, prosper, and enrich the profession.  NAWL has established the annual Selma Moidel Smith Law Student Writing Competition to encourage and reward original law student writing on issues concerning women and the law. The rules for the competition are as follows:

Entrants should submit a paper on an issue concerning women’s rights or the status of women in the law.   The most recent winning paper was “The Decriminalization of Rape on America’s College Campuses: How Federal Sex Discrimination Policy Has Diminished the Role of the Criminal Justice System in Combatting Sexual Violence” written by Danielle Elizabeth DeBold, New York University School of Law.  Please view paper at  http://www.nawl.org/p/cm/ld/fid=83.

Essays will be accepted from students enrolled at any law school during the 2014-15 school year. The essays must be the law student author’s own work and must not have been submitted for publication elsewhere.  Papers written by students for coursework or independent study during the summer, fall, or spring semesters are eligible for submission.  Notwithstanding the foregoing, students may incorporate professorial feedback as part of a course requirement or supervised writing project.

FORMAT:  Essays must be double-spaced in 12-point, Times New Roman font. All margins must be  one inch. Entries must not exceed fifteen (15) pages of text, excluding notes, with footnotes placed as endnotes. Citation style should conform to The Bluebook – A Uniform System of Citation. Essays longer than 15 pages of text, excluding notes, or which are not in the required format may not be read.

JUDGING:  NAWL Women Lawyers Journal^® designees will judge the competition. Essays will be judged based upon content, exhaustiveness of research, originality, writing style, and timeliness.

QUESTIONS:  Questions regarding this competition should be addressed to the chair of the Writing Competition, Professor Jennifer Martin at jmartin@stu.edu.

SUBMISSION AND DEADLINE:  Entries must be received by May 1, 2015. Entries received after the deadline will be considered only at the discretion of NAWL. Entries must provide a cover letter providing the title of your essay, school affiliation, email address, phone number, and mailing address.  Entries must be submitted in the following format: email an electronic version (in Microsoft Word) to jmartin@stu.edu.

AWARD:  The author of the winning essay will receive a cash prize of $500. NAWL will also publish the winning essay in the NAWL Women Lawyers Journal.

 

10th Annual Contracts Conference Soon - Get Your Paper Proposals In

Call for Participation and Proposals

10th International Conference on Contracts (KCON 10)

William S. Boyd School of Law, UNLV

Las Vegas, Nevada February 27 & 28, 2015

 

 UNLV's William S. Boyd School of Law is pleased to again host the International Conference on Contracts -- a two-day conference designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, as-yet-fully-formed ideas for scholarship, and pedagogical innovations, and to network with colleagues -- and potential collaborators or mentors -- from around the country and other parts of the world.

Invitation: We invite paper, presentation, and panel proposals exploring any aspect of contract law, theory, and policy writ large (including, but not limited to, bankruptcy/insolvency, commercial law, consumer law, dispute resolution regimes, employment law, family law, insurance law, legal systems, and restitution, in addition to more traditional contract topics) from a behavioral, comparative, critical, doctrinal, economic, empirical, equitable, historical, institutional, interdisciplinary, jurisprudential, pedagogical, philosophical, policy-driven, or political perspective.  We also solicit volunteers to serve as moderators or discussants for panels that are not "packaged deals."

 

The CFPs issued earlier this year for the AALS Section on Contracts' and Section on Commercial and Related Consumer Law's January annual meeting programs each yielded more excellent proposals than either section can accommodate in Washington.  There are also issues of weather, timing, politics, and expense that may keep some away from the AALS annual meeting.  We strongly encourage those who submitted papers or proposals to either section -- successfully or unsuccessfully -- to submit to us.  KCON 10's attendance will almost certainly exceed that of any single session at AALS and, although there will be some overlap in the audience, there will also be plenty of fresh eyes and ears in February in Las Vegas.

I intend to organize a panel in memory of our dear friend and colleague Jean Braucher and another to discuss Omri Ben-Shahar & Carl Schneider's recent book, More Than You Wanted to Know: The Failure of Mandated Disclosure.  A couple of other panel ideas are already brewing.  Those efforts, even if all bear fruit, still leave room for many more presenters, moderators, and discussants.

We will try to accommodate as many presenters, moderators, and discussants as possible.  We particularly encourage junior scholars and those who work in non-U.S. legal systems to propose papers or panels and to volunteer to serve as a discussant or moderator.  We also welcome anyone who wishes to attend the conference without presenting or serving as a discussant or moderator.  The educational and networking benefits alone are worth the price of admission.

Publication: There is no publication requirement for conference participants, although experience suggests that individual papers and panels often find good homes.  The Nevada Law Journal encourages participants to submit individual and panel papers and hopes to publish several works from the conference in upcoming issues.

Submitting a Proposal: If you would like to propose a presentation or panel, please e-mail a title, brief description, and any supporting materials by January 23, 2015 to keith.rowley@unlv.edu or snail-mail it to me at the address below; if you would like to discuss or moderate, please let me know your interests and availability by January 23.  We will evaluate proposals as they come in and will consider on a space-available basis any we receive after January 23.

Preliminary Schedule: The conference program will begin both Friday and Saturday morning no later than 9:00 a.m. (grazing and conversational opportunities will start earlier) and will run until 5:00 or 5:30 p.m. each day.

Accommodations: Bluegreen Club 36 near campus (372 E. Tropicana Avenue, Las Vegas, NV 89169) is holding a block of rooms for Thursday 2/26 through Saturday 2/28 nights at a rate of $92.00 per night (plus tax) for a deluxe suite or $82.00 per night (plus tax) for a standard suite.  To book a conference-rate suite at Bluegreen Club 36, please call (800) 456-0009 and tell the reservations agent that you are with the UNLV Law School contracts conference.  The deadline for hotel registration at the conference rate is February 4, 2015.  However, I encourage you to book sooner, as we blocked a limited number of rooms and will be better able to get the hotel to make the conference rate available to additional attendees if early registration is robust.

For those who prefer to stay on the Las Vegas Strip, we have also secured a smaller block of rooms at the Luxor (3900 Las Vegas Boulevard South, Las Vegas, NV 89119) for Thursday 2/26 through Saturday 2/28 nights for Tower Deluxe rooms (one king bed or two queen beds) at a rate of $40.00 per night (plus tax & $18/night resort fee) for Thursday 2/26, $89.00 per night (plus tax & $18/night resort fee) for Friday 2/27, and $99.00 per night (plus tax & $18/night resort fee) for Friday 2/27.  The Luxor is considerably farther from campus than Bluegreen Club 36, and traffic on and around the Las Vegas Strip can be heavy at times; however, this is an excellent rate that appears to be available for earlier check-in for attendees looking to spend an extra night or two in Las Vegas.  To book a conference-rate room at the Luxor, go to https://aws.passkey.com/event/13031521/owner/4939/home.  The deadline for the conference rate at the Luxor is January 29, 2015.  Again, I encourage you to book sooner, as we blocked a smaller number of rooms there and will be better able to get the Luxor to make the conference rate available to additional attendees if the block fills up quickly.  

Transportation: We'll provide transportation between Bluegreen Club 36 and the law school (as well as Friday's dinner venue, if it is off-campus).  If enough attendees book rooms at the Luxor, we will arrange shuttle service to and from there as well.  Attendees who prefer to stay elsewhere are responsible for their own transportation.

Sustenance: Your registration fee will cover the costs of lunches both days and a reception and dinner Friday evening, as well as coffee, fruit, and baked goods each morning and cold beverage service and morsels each afternoon.

Registration: We're still finalizing the conference registration fee and process.  The registration fee will be no more than $250, which will include Friday evening's conference dinner, at which we will recognize this year's career achievement award recipient.  Additional tickets to Friday's dinner will be available for guests who are not registered for the conference.

Prepaid Card Fees and Fraud

With the Consumer Financial Protection Bureau (CFPB) tackling a variety of issues, from confronting student loan abuses (See, CFPB Sues Corinthian) to new rulemaking on home mortgage disclosure, when will it finally turn to prepaid debit cards?  While the use of prepaid debit cards as alternatives to traditional checking accounts has often been associated with those with credit problems, the cards have grown in popularity with consumers wanting to avoid banking fees. Oh, and there has been the string of failed celebrity sponsored prepaid cards, often with high fees.  The CFPB hasn't exactly been quick to tackle issue with fees, card loss and fraud on these cards, though. 
Even though the CFPB is late to take up these issues, it has started accepting consumer complaints online with expectation that companies resolve complaints within 90 days.  The CFPB is working on draft regulations to keep consumers of pre-paid cards safer, specifically disclosure requirements. A lot of the pre-paid cards don't allow the consumer to understand the system of fees until after they have purchased the cards.  In particular, the CFPB is continuing with the CARD Act's popular tabular method for disclosure in the prepaid card arena. 

Only time will tell what type of regulations will be effective on the fee front, but the CFPB is not yet tackling the fraud front. While a consumer may have recourse for some frauds if they use their Debit or Credit Cards under the Truth in Lending Act or the Electronic Funds Transfer Act, victim of prepaid card fraud have little protections outside of criminal law.  While most of these losses are small in nature, some victims have lost substantial amounts of money through alleged tax collection, bill collection and lottery schemes.  While it never hurts to be informed, particularly when your money is involved, pure public awareness of fraud is not likely to protect vulnerable consumers.  Sometimes disclosure alone is insufficient.  Perhaps its time for the regulators to more aggressively pursue the card issuers?

- JSM (with Devon Locay, St. Thomas University J.D. expected 2016)

CFPB Sues Corinthian College On Predatory Student Loan Practices

In case there were any doubts, the federal government is still in the business of Truth-In-Lending.  Corinthian College is the target of an action of the Consumer Financial Protection Bureau “(CFPB”) for predatory student loan practices. This is not too surprising given the Massachusetts Attorney General action filed back in April against Corinthian.  Corinthian has a host of troubles now, including financial problems that have it seeking a buyer for the distressed educational institution.  (See, The For Profit College that's Too Big to Fail and Corinthian Victimized Students)   The CFPB's complaint alleges that Corinthian encouraged students to take out private loans, in addition to federal loans, too expensive to pay back. The CFPB points to inflated, misleading and sometimes false employment figures. Its a bit of a mystery as to whether the college was just encouraging students to take out these private loans or if the practices actually amounted to inducing students to take out these loans.

The cost of tuition for one of Corinthian Colleges degrees was at least five times higher for any degree that could be earned at a public or community college. The CFPB alleges that Corinthian raised the cost of tuition so that the federal loans would not cover the cost, and students would then take out "Genesis" loans, which Corinthian had an interest in and which require students to pay while attending classes. Many of the students defaulted and Corinthian employees would called students out of class numerous times to discuss the non-payment of the loan in order to get students to make good on their loans.

So, how might an aggrieved student with some education, but not fantastic job opportunities benefit from this action? The CFPB's complaint seeks relief from the court going as far as ordering the complete recision of all Genesis and Education Plus loans starting from as early as 2011. This is big, as the students would not have to repay these loans.  About 130,000 students took out a “Genesis” loan since July 2011. Apparently most of the students attending Corinthian Colleges which include Everest Institute and Everest College, are students that come from homes earning less than 45k per year. The College is however, still enrolling students with the same practices despite the suit although the CFPB is seeking to enjoin the colleges from performing the same tactics for new or prospective students.  In August, Corinthian sold over $500 million of these student loans to a third party for $19 million, surely reflecting collectability on several fronts.

With the federal government unable to tackle the issue of student loans on a broad basis, the CFPB at least seems to be carrying out there promise to crack down on predatory lending.  Earlier this year, it was ITT Tech that was in the spot light for these deceptive practices. (See, CFPB Takes on Predatory Student Loan Practices).   Student loan defaults on the whole, at least, are down. (See, Defaults on Student Loans Decline).  It should be interesting to keep an eye on who is next on the student loan front.  Those lenders and schools whose loans have a disparate impact on their students are next in line.  Not surprisingly, the ABA's Business Law Section's Annual Meeting included a well attended session on "All I Need to Know I Learned From the Government: A Look at the Regulatory and Enforcement Landscape for Student Lending."

- JSM (with Devon Locay, St. Thomas University J.D. expected 2016)

Can a Seller Collect More than Expectation Damages? Yes, Says the Oregon Supreme Court

Law students learn early in their study of Contracts that an aggrieved party is entitled to collect its expectation interest.  But, is that always true?  Well, the Supreme Court of Oregon recently held that an aggrieved seller under Article 2 might be able to claim more than its expectation interest.

 

The breadth of the remedies available to a seller who has resold goods after a buyer’s breach was at issue in the case of Peace River Seed Co-Operative, Limited v. Proseeds Marketing, Incorporated.  Proseeds Marketing (“Proseeds”) was to purchase seeds from Peace River Seed Co-Operative (“Peace River”) at a fixed price over a period of two years.  During the contract period, the price of grass seeds fell dramatically and Proseeds refused to provide shipping and delivery confirmation to Peace River for the shipment of the seeds.  Therefore, Peace River cancelled the contracts and brought suit, claiming market price damages even though it had resold some of the seed.

Ultimately at issue was whether an aggrieved seller who resold goods (section 2-706) can recover the difference between the unpaid contract price and the market price, even where the market price damages would exceed resale damages actually suffered by the seller.   If Peace River could collect market price damages even where it resold the goods at a profit, it would arguably receive a windfall on the transaction.  Conversely, the court could restrict Peace River to recovery of an amount of damages no greater than it recovered in its resale.   Somewhat surprisingly, the Supreme Court of Oregon held that owing to the lack of clarity in the Code itself, “the text, context, and legislative history of the sellers’ remedies provisions support a seller’s right to recover either market price damages or resale price damages, even if market price damages lead to a larger recovery.”    The court reasoned that the index of remedies provided by section 2-703, coupled with the comments rejecting election of remedies, indicated that a seller could resell at a higher price and still collect a larger market-based remedy where available. 

 
Despite the decision in Peace River, a seller who attempts to claim the higher remedy under 2-708 after resale should expect a challenge from the buyer.  While the decision in Peace River is based on the Code’s rejection of an election of remedies and the “liberal” administration of remedies,  it does not necessarily follow that an aggrieved seller should be able to collect more than its expectation interest.   In such a case, it seems the seller should not have been able to obtain more than the benefit of the bargain.   One must also question whether the Court might have concluded that the resale price and market were equivalent.  But this may not be the case in a rapidly changing market.  Moreover, while the Code rejects election of remedies, it also provides that “[w]hether the pursuit of one remedy bars another depends entirely on the facts of the individual case.”   It might be argued that the pursuit of the market-based remedy when it exceeds the benefit-of-the-bargain, would entirely be the appropriate circumstance in which to bar the election of the higher remedy.

 

- JSM

Nebraska Court Reminds that 9-625 Applies to Grant Remedies Against Secured Parties

I am at the ABA Business Law Section's first stand-alone meetings in Chicago, Illinois and attended the filing office task force this morning.  Among other news about states encouraging electronic filings of financing statements, the case of Fjellin v. Penning was on the agenda.  In this case, a trust was a perfected secured party relative to assets of several Dairy Queen stores that were later sold to a buyer.  After the closing, the debtors' attorney, Kaplan, filed a termination statement relative to the assets sold to the buyer (who had bought the assets free and clear of the liens).  Penning, a secured creditor of the Trust himself, as well as a director and shareholder of the debtor, allegedly retained most of the closing funds and only paid part of them over to the Trust.  In the action against Kaplan, the court concluded that there was no claim under section 9-625, which only creates a cause of against secured parties.  Kaplan, being the attorney of the debtor, was not a secured party.  Moreover, the court declined to find in favor of the Trust on a claim of negligence against Kaplan, finding: (i) causation lacking where Penning's action in taking the funds caused the problem, (ii) that the termination statement did not extinguish the security interest in the assets under 9-315; and the Trust had an interest in proceeds under section 9-203.

Hmmm, next time make sure the funds are paid on the loan at closing.

- JSM

Save the Date International Conference on Contracts 2015

The Tenth International Conference on Contracts will be held February 27-28th, 2015 at the University of Nevada, Las Vegas.  The Chair is Professor Keith Rowley.  More will be coming soon on this, but going to Vegas for the Conference has been a big hit in the past (UNLV has hosted before).

- JSM

Bitcoin and Other Cryptocurrencies: Regulatory and Commercial Law Concerns

Interest in cryptocurrencies is growing, even after Mt. Gox, formerly the largest international Bitcoin exchange, filed for bankruptcy in Japan following $473 million in losses  (See also, Almost Half a Billion Vanishes). Bitcoin’s resulting drop in value, from a $1,000 high to around $500, should be a reminder that cryptocurrencies are volatile payment systems under which the applicability of existing regulatory and commercial law is unclear. 

Bitcoin Regulation

Because Bitcoin is not backed by any government or central bank, banking and financial industry regulations may not apply to Bitcoin transactions. For this reason, Federal Reserve Chair Janet Yellen testified before Senate that the Federal Reserve lacks regulatory authority over Bitcoin. Similarly, the FDIC indicated in at least one context that a money transmitter like PayPal is not a bank for federal banking law purposes. Consequently, Bitcoin users cannot expect deposit or investment protection from the FDIC or customer protection from the SIPC.

Given this uncertainty, the Federal Trade Commission, Consumer Financial Protection Bureau, Securities and Exchange Commission, and Commodity Futures Trading Commission are studying the need for cryptocurrency regulation. Additionally, New York and California are racing to pass state regulations.

Notwithstanding, it appears Bitcoin exchanges may be subject to money-laundering rules under the Bank Secrecy Act. The U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) previously stated that exchanges must register with FinCEN as money services businesses and report large or suspicious transactions. This is not surprising given the anonymous and irreversible nature of Bitcoin transactions, which make them susceptible to money laundering and other criminal activity. For these reasons, it is unclear how Bitcoin exchanges can fully comply with reporting requirements.

Bitcoin Under Existing Commercial Law

It is equally uncertain how Bitcoin transactions are treated under existing commercial laws not designed to address cryptocurrency concerns. Because Bitcoin is intangible, yet acts as a store of value and a financial medium for the exchange of goods and services, it is difficult to classify as a property type. Under non-bankruptcy law, bitcoins are likely a “general intangible” or “payment intangible” for purposes of Article 9 of the Uniform Commercial Code (UCC), as adopted in most jurisdictions. Consequently, a creditor taking bitcoin as collateral should obtain a security agreement from the debtor sufficiently identifying the collateral. Perfection of the security interest would require filing a UCC-1 financing statement in the state where the debtor is located. Failure to perfect may render the creditor’s security interest subject to avoidance by a subsequently appointed bankruptcy trustee. Interestingly, because secured lenders sometimes take blanket security interests in all of a debtor’s property, including general intangibles, many banks and financial institutions may already hold security interests in a debtor’s bitcoins without realizing it.   

At least one commentator has also indicated that, because Bitcoin exchanges may not constitute banks, bitcoin held by an exchange would not qualify as a “deposit account” under the UCC, but rather as a “payment intangible.” Thus, perfection in a debtor’s cryptocurrency held on an exchange cannot be accomplished by an account control agreement typically used to perfect against deposit accounts. As a result, when a debtor transacting  business through a Bitcoin exchange defaults, it may be harder for secured creditors to liquidate their collateral. 

Given Bitcoin’s inherent volatility, and the difficulty secured creditors may face collecting against it, Bitcoin’s use as collateral in conventional lending transactions remains highly suspect. For these reasons, cautious lenders should consider including representations and covenants in lending agreements to prohibit or limit a borrower’s use of Bitcoin.

In bankruptcy, a debtor’s bitcoin at filing would likely qualify as property of the estate since the debtor would have a legal or equitable interest therein. Accordingly, a bankruptcy trustee should be able to assert control over a debtor’s bitcoins (or their value) and liquidate them for the estate’s benefit. A debtor’s failure to schedule or adequately explain the absence of previously held bitcoins, or turn over existing bitcoins to the trustee, could provide grounds to object to the debtor’s discharge. A debtor’s pre-bankruptcy transfers of bitcoins may provide grounds for a trustee to pursue preference or fraudulent conveyance actions against bitcoin recipients. However, identifying the recipients may be complicated by Bitcoin’s anonymity. Regardless, prudent trustees should inquire about a debtor’s existing or past Bitcoin investments or transactions.  See, The Hazards of Lending to Bitcoin Users.

Increased awareness of Bitcoin’s potential security pitfalls highlights the uncertainties surrounding cryptocurrency’s future. Going forward, legislation and case law will likely provide more clarity on existing commercial law and regulatory concerns. Until then, parties transacting business with or investing in Bitcoin should exercise caution.  See, Is UCC Article 9 the Achilles Heel of Bitcoin?

By Robert N. Gilbert and Alexandra D. Blye , Carlton Fields, Jorden Burt, Miami, Florida

Links provided by JSM

Valuable Reading for Commercial Law

Now that most states have adopted the 2010 Amendments to Article 9, a new copy of the ABA's Portable UCC (5th edition) might be helpful, if you've not already seen it.  In other interesting new reads:

1. The CISG as Soft Law & Choice of Law: Gōjū Ryū? (Lisa Spagnolo).
2. UCC Suvey - Sales (Jennifer Martin).  Highlighting cases from 2013 decided under Article 2 of the Uniform Commercial Code. Particular Article 2 highlights include the mixed goods case of Whitecap Investment Corp. v. Putnam Lumber & Export Co., a case involving multiple transactions for treated lumber where the court found that application of the “predominant purpose” test to determine whether Article 2, or common law, applies to disputes is dependent upon whether the parties have an overriding agreement for the transactions or whether the court evaluates each individual transaction on its own. The Sales Survey also took up the merchants must read their mail case of Brooks Peanut Co., Inc. v. Great Southern Peanut, LLC., a case involving peanut brokers and communications among the parties and their brokers.
3. The Uniform Commercial Code Survey: Letters of Credit (James Barnes & James Byrne).  This survey concentrates on the most significant letter of credit ("LC") issues addressed in cases decided in the United States in the year 2012.
4. The Incoherent Role of Bargaining Power in Contract Law (Max Helveston & Michael Jacobs). 

This paper was presented at the KCON in February.

Here it the video for that session:

And the Survey Says . . .

The dumbest personal finance decision people make is  . . . getting into debt. See, CNN, Money. Many won't admit to any mistakes at all, but as the chart below indicates, there are plenty of us that do own up to personal finance mistakes.

 

The Survey also covers other great points, like living within your means as a success strategy, but the most surprising point to me is that people feel rich if they have $500,000 (I would expect that to be higher).  Happily, the survey indicates that we've passed the point where people are overly worried about their homes declining in value for the most part.  This is probably a change from a couple of years ago.

 

The biggest obstacle to financial security: income (31%).  I'm not sure that I agree with that, given some of the other survey results.  If you follow the other pages, it would seem that not getting into debt and living within one's means might be key players here, so long as the income is not too meager.  But, once there is debt and lifestyle challenges, a low income can become that obstacle.

 

CNN ran a survey back in 2011 that found that half of Americans did not have $2000 in emergency savings.  This new survey concludes that almost two-thirds could handle a $1000 emergency, but only 42% could handle a $10,000 emergency.  It seems we still have a way to go as Americans when it comes to saving.

 

- JSM

What About Amending UCC Article 2?

What?  Amend UCC Article 2?  You might think I am joking, as it is April Fool's Day.  But, indeed, I am not.  We've successfully amended UCC Article 9 a number of times in recent time.  Why not UCC Article 2?  Yes, the last attempt at this feat lasted a long time and ultimately failed.  There are many reasons why the Article 2 Amendments failed, though.  See Symposium on Revised Article 1 and Proposed Revised Article 2, 54 Southern Methodist Law Review 469 (2001).  The fact remains that Article 2 is still cumbersome, disorganized and plain out difficult to follow.    Might a smaller revision of the type used with Article 9 have success in an Article 2 revision?

As Professor Neil Cohen, Brooklyn Law, commented at the International Conference on Contracts KCON9, a code should be written in a comprehensive, systematic, and preemptive manner.  Professor Cohen observed that Professor Linda Rusch's work on revising the remedies portion of Article 2 accomplished the goals of a good code and had much to commend them. Professor Larry Garvin (Ohio State) concurred with much of what was said, particularly with the clarity, simplicity and power of the language of the draft remedies provisions.  Here's the video from the Plenary Session at KCON9.



So, despite this being April 1, perhaps sometime in the future when we all are sufficiently recovered from the trauma of having a failed Article 2 revision in the first place, we might consider moving toward a modest revision centered on some of the work that held a greater consensus.  Remedies anyone?

- JSM

Video from International Conference on Contracts KCON9 Available

I am pleased to report that all of the video from KCON9 held at St. Thomas University School of Law February 2014 is now available at youtube (Click here to access the Channel).  Some of the highlights of the program included:

• The Works of Linda J. Rusch
• Contracts and Commercial Dealings
• Contracts and Technology
• Wrap Contracts by Nancy Kim
• Contract Law and Social Justice: An Oxymoron?
• Behavior, Bargaining, Incentives and Contract
• Contract and Its Relationship to Other Doctrines
• International Issues in Contracting

If you missed the Conference, next year is at University of Nevada, Las Vegas.  Professor Keith Rowley is the Chair.

 

-JSM

Skeptical about Bitcoin: No Old White Man Here

Warren Buffet advised investors to stay away from Bitcoin, dubbing it a "mirage."




Yet, he took some hits from capitalist Marc Andreeseen for being an "old white m[a]n crapping on new technology [he doesn't] understand."   See Bitcoin: Both Buffet and Andreeseen are Right. 

But, about three years ago, I said much the same thing, commenting there are "no quick fixes or easy roads to avoid market volatility and economic instability."  See, What is a Bitcoin? Where Did My Bitcoin Go?  I see Bitcoin much in the way that Buffett does, basically it is a way to transmit money.  It is not a currency of the sort that we expect to be backed by government.  The IRS has come out explicitly and classified the Bitcoin as not a currency, but property.  See IRS: Virtual Currency Guidance. 

If investors expect to make money investing in Bitcoin, there would be costs on the users of the system, much in the way that the credit and debit card system works.  But, I have more confidence that losses arising under the debit and credit card system are not ordinarily borne by the consumer.  Moreover, those investing in the Bitcoin system expecting their investment to rise would be wise to remember that any investment is speculation.  It is reminiscent to me of Gordon Gecko's reminder in Wall Street: Money Never Sleeps:

Back in the 1600s, the Dutch, they got speculation fever to the point that you could buy a beautiful house on a canal in Amsterdam for the price of one bulb. They called it 'Tulip Mania.' Then it collapsed. You could buy 10 bulbs for two dollars. People got wiped out, but who remembers?

But, I seem to recall a whole lot of people recently losing money on Bitcoin.  See, Bitcoin's Mt. Gox Goes Offline.  Perhaps my memory is starting to fade with old age.

- JSM    

Determining Predominate Purpose in Multiple Transaction Dealings

Its the time of the year for the ABA's Sales Survey that will come out by August.  Each year, there are noteworthy cases involving the scope of Article 2.  Deciding whether Article 2 of the U.C.C. applies, of course, rests on whether the transaction involves a sale of goods under 2-105.  In many cases this determination is pretty straightforward, but is complicated when there the transaction is one with mixed goods and services.  In such cases, most courts employ the predominate purpose test to see whether the goods or services aspect of the transaction eclipses the other.  See, Predominate Purpose Test Still Predominates.  This inquiry is more complicated, though, when the dealings of the parties involves multiple transactions.

Such was the case in Whitecap Investment Corp. v. Putnam Lumber & Export Company,  where the District Court for the Virgin Islands considered whether certain transactions involving lumber were sales of goods.   Great Southern Wood Preserving, Inc. (“GSWP”) and Putnam Lumber & Export Company (“Putnam”) contracted for the treatment of lumber by GSWP, which Putnam would resell to others, including Whitecap Investment Corp. (“Whitecap”).   As there was no overriding contract, GSWP and Putnam would enter into each transaction independently, with GSWP providing treatment services only in nearly all cases.  Putnam would purchase wood and provide it to GSWP for treatment in accord with the customer’s specifications.  In some transactions, GSWP would also sell to Putnam its own lumber, treated according to industry specifications.   Following a dispute over the premature decay of the lumber, Whitecap filed suit against Putnam for breach of contract and breach of warranty, and Putnam filed a cross–claim against GSWP for indemnity and contribution.   On GSWP’s motion for summary judgment, it argued that it was entitled to summary judgment on any breach of warranty claim that arose under Article 2 because GSWP claimed it sold no goods to Putnam.   The court denied the motion, holding that since the parties did not have one overriding agreement, the court would need to examine each transaction separately to determine if the sale of goods predominated.    As some of the contracts did involve the sale of lumber governed by Article 2, summary judgment was improper.

The lesson of this case is that the structuring of the parties overall arrangement can make a difference in coverage by Article 2 in mixed goods/sales transactions.  Surely, those transactions that involved only sales of treated lumber would be sales of goods for purposes of Article 2.  It would seem on the facts at summary judgment that the other transactions that involved lumber treatment only would not be transactions in goods under Article 2.  Viewing the transactions independently is more time consuming from a fact perspective and may lead to a different outcome on than if the parties had one overriding contract under which there were isolated sales, but predominantly treatment services contemplated and delivered by the provider. 

- JSM

CFPB takes on Predatory Student Loan Practices

The Consumer Financial Protection Bureau (“CFPB”) recently filed a lawsuit against ITT Educational Services (“ITT”) for predatory student loan practices. See CFPB Press Release.  The CFPB complaint makes a number of allegations against ITT under the Truth in Lending Act ("TILA"), including:

1. pressuring students into high interest loans without affording them the opportunity to understand their loan obligations;
2. offering credits that are non-transferable to community or non-profit colleges;
3. misleading students into thinking that they would be securing gainful employment after graduation in order to payoff their private loans; and
4. knowing that a majority of the students would default on their private loans.

Apparently, the Securities and Exchange Commission ("SEC") is also looking into the practices of ITT and some of the state attorney generals are also investigating its practices.  See, WSJ Online. 

Investigation into ITT is hopefully just the beginning into the lending practices involving students.  It is not unusual that students have very high student loan balances that take a long time to pay or they struggle with at times.  This is especially true for graduates who are unemployed or underemployed.  See, American Student Assistance, Student Loan Debt Statistics. Yet, the protections afforded to borrowers under the Credit Card Responsibility and Disclosure Act ("CARD Act") in terms of account statement disclosures and loan transparency were not extended to student borrowers.  This is true in the face of complaints from consumers about receiving account statements and documentation upon request.  Moreover, students do not get regular billing statements while they are in school since they are not in repayment.  The same strong tabular disclosure that is the gold standard in other areas surely should apply in the student arena.  Plenty of fodder for the CFPB to tackle.

- JSM (with Ray Alvarez)

Auto-Bill Pay Can Pay Your Bills Even After You are Dead

In a news story that looks like it should be reported in a law school casebook, a Detroit woman died in her home, yet her bank continued to pay the automatic payments from her account until the money ran out. Then came a foreclosure on her home.  All of this occurred over a period of about six years. 

A few points worthy of discussion beyond the obvious problem that her family and friends were not able to discover her death. First, is that the perpetual nature of recurring payments may result in payments to creditors proceeding even after death. In terms of the basic assent and authorization of the payments from the account under U.C.C. 4-401, it would seem to be a valid question whether she continued to "authorize" these payments under the properly payable rule after death.  Second, a contractor discovered the death after authorities foreclosed on the house due to non-payment of taxes.  One of the lingering issues with foreclosures is the access to the property available to buyers, contractors and even governmental agents.  One might wonder how the foreclosure possibly proceeded without any response from her or suspicion as to the reality of her demise.


ABC US News | ABC Business News

-JSM

International Conference on Contracts Proceedings

Video from the proceedings the of the International Conference on Contracts are now available in case you miss the conference this year. One of the more interesting presentations was the planetary session where Kingsley Martin of KM Standards spoke about how technology will change the way that lawyers practice as it allows for the emergence of contracts standards in a variety of key agreements that attorneys use. Kingsley used the analogy of physicians using MRI machine to show how the work of attorneys will also be aided through technological developments. I agree with him that technological advances in the law are going to continue to impact the practice. Not only does this have the possibility of making agreements better for clients, but should also increase the availability of legal services in the contract area to a greater number of clients. I will be looking forward to seeing how his product ultimately changes the way my students will draft a variety of contracts for clients.



-JSM