Albert H. Kritzer, 1928-2010

My recent posts about the status of the CISG and CUECIC and the possible CISG implications of the McDonald's glassware recall sent me, as is almost always the case when I want to refresh my recollection of CISG text or catch up on recent cases and commentary, to the Pace Law School Institute of International Commercial Law's expansive, free, and always helpful online CISG Database.

Revisiting the site yesterday, I read the sad news that Albert H. Kritzer, the Institute's founder and godfather of the CISG Database, passed away June 1, while in Egypt to receive the 2010 Arab Conference for Commercial and Maritime Law Career Achievement Award. Pace Law School's notice, including comments from Dean Michelle Simon, is available here.

I met Al Kritzer only once, and briefly, in person, during a break in a conference at Pace Law School that his colleague Jim Fishman hosted commemorating Wood v. Lucy, Lady Duff-Gordon. However, Al and I corresponded (mostly by e-mail) and he was kind enough to introduce me (again, via e-mail) to Joseph Lookofsky (another CISG luminary) and to introduce much of the domestic and international CISG community (via the CISG Database) to my work analyzing the then-entire corpus of published U.S. CISG case law in the chapter on the CISG that I comprehensively revised and greatly expanded a few years ago for Howard O. Hunter's Modern Law of Contracts. Al subsequently invited me to contribute substantive case commentaries to the CISG Database, in which I have been largely remiss for a variety of reasons. I hope that his successor will allow me to honor Al's invitation -- and his life's work.

Would you like some cadmium with your soft drink?

Yesterday, the Consumer Product Safety Commission (CPSC), in conjunction with fast-food giant McDonald’s®, voluntarily recalled about 12 million Shrek Forever After™ collectible drinking glasses sold or awaiting sale at McDonald’s® locations throughout the U.S. after someone in Representative Jackie Speier's (D-CA) office alerted the CPSC that the movie-character illustrations on the glasses contained cadmium, prolonged exposure to which may pose a serious long-term health risk.

Millville, NJ-based Durand Glass Manufacturing Co. (DGMC), a subsidiary of Arques, France-based Arc International, manufactured the movie-themed glasses, which another Arc International subsidiary, Millville-based Arc International North America, distributed exclusively to McDonald's. McDonald's locations nationwide sold the glasses in May and early June 2010.

McDonald's web site addresses the recall through a series of FAQs (and answers). (For the benefit of those with short attention spans, every answer to which the statement would be germane includes the statement "the CPSC has said the glassware is not toxic.") Arc International deployed a press release. Representative Speier posted a statement on her web site, which also includes a link to a Los Angeles Times article about the recall. Only DreamWorks™ appears to be mum on the subject -- so far, at least. (Perhaps the Shrek-iverse's creators didn't retain all of the product licensing-rights like George Lucas did, not so long ago and not so far away, with the original Star Wars™ trilogy or they made McDonald's pay a non-refundable lump sum to market the glassware.) Rumors of a replacement glass featuring an image of McDonald's CEO Jim Skinner that transmogrifies into a Shrek-alike when filled with any non-Coca-Cola® brand soft or sport drink appear to be completely unfounded.

All fun aside, why is a commercial law blog interested in allegedly cadmium-contaminated glassware products introduced into the stream of commerce without any warning about or disclaimer regarding the possibility that they might contain an alleged carcinogen?

If this were a tort law or products liability blog, we might opine about the inevitable class-action product liability lawsuit against some combination of McDonald's, Arc International, Arc International North America, Durand Glass Manufacturing Co., the as-yet undisclosed supplier(s) of the cadmium-contaminated paint or other ingredient Durand used to commemorate Shrek™, Fiona™, Donkey™, and Puss in Boots™ (okay, Puss is probably not trademarked, given that the character's name dates from the late Seventeenth century, but we want to minimize our exposure to IP liability because most of us teach at public universities and neither we nor our employers can afford, in the current fiscal climate, to defend any infringement claim that survives a Rule 12(b)(6) motion) on the glassware (and, perhaps, DreamWorks -- for making a movie about which McDonald's predicted sufficient interest that it undertook to procure the offending glassware for resale).

If this were a civil procedure blog we might weigh whether the terms and conditions (no doubt, conveniently located somewhere on the Internet) purportedly governing McDonald's sale of the collectible glassware unconscionably compel non-class arbitration (assuming facts not in evidence) in light of the Supreme Court's recent grant of certiorari in AT&T Mobility LLC v. Concepcion, No. 09-893 (cert. granted May 24, 2010), about which my friend and UNLV colleague Jean Sternlight and my friend and ContractsProf Blog colleague Meredith Miller have recently blogged here and here, respectively.

If this were a consumer law blog, we might wring our hands or cluck our tongues at yet another clear example of Corporate America's crass exploitation of our children and squeeze-the-last-penny sellers who outsource production of low-priced, lower-cost consumer goods to Third World outposts like ... New Jersey. (Just kidding, Jay.)

But, again, what's the commercial law angle on collectible glassware manufactured for and sold to McDonald's for resale to McDonald's retail customers?

It should go without saying that the most interesting legal issues arising out of this scenario involve (1) what express and implied UCC Article 2 warranties each seller in the chain from DGMC (or DGMC's ingredient supplier) to McDonald's made to anyone who purchased or used the glassware; (2) to what extent, if any, each seller in that chain may have disclaimed some or all of its warranty liability, limited the remedies available to the buyer, user, or other person affected by the glassware's use, or both; (3) whether one or more warranty-making sellers breached one or more warranties to one or more buyer, user, or other person affected by the glassware's use; and (4) what remedies Article 2 affords any person to whom any seller is liable for breach of warranty.

For those wanting to add some international spice to the mix, the CBC reports here that the recall has spread to include all Canadian McDonald's restaurants. Information from the Associated Press and Reuters, reported here, indicates that recalling the glassware sent to Canadian McDonald's restaurants raises the total number of recalled glasses to 13.4 million. Both the U.S. and Canada are parties to the U.N. Convention on Contracts for the International Sale of Goods (CISG). To the extent that the Canadian McDonald's restaurants purchased their Shrek Forever After™ collectible glassware from New Jersey-based DGMC or New Jersey-based Arc International North America, that transaction constituted a sale of specially-manufactured goods (CISG art. 3(1)), purchased for resale, rather than personal, family, or household use (CISG art. 2(a)), by a buyer located in one CISG "contracting state" from a seller located in a different "contracting state" (CISG art. 1(1)(a)). Therefore, unless the Canadian McDonald's buyers and New Jersey-based DGMC or New Jersey-based Arc International North America effectively opted out of the CISG (CISG art. 6), any breach of warranty claim the Canadian buyers might have (CISG art. 35), the extent to which any U.S. seller disclaimed any warranty or limited its liability for breaching any warranty (CISG arts. 6 & 35), and the available remedies (CISG arts. 45-52 & 74-78), will be matters for the CISG to resolve.

Meanwhile, on the UNCITRAL Front

Having recently updated you on the status of the various official UCC revisions and amendments (nothing new to report on that front, by the way), I thought it would be worthwhile to take UNCITRAL's pulse and see how the U.N. Conventions on Contracts for the International Sale of Goods (CISG) and on the Use of Electronic Communications in International Contracting (CUECIC) are faring.

Both strike me as profoundly relevant to anyone teaching Contracts, Sales (or a UCC survey course that includes sales), International Sales (or an International Commercial Transactions survey course), or -- at least in the CUECIC's case -- an Electronic Commerce course. The CUECIC's fortunes might also shed some light on the likelihood that the ALI Principles of the Law of Software Contracts will influence contracting practices, contracting disputes, and the evolution of contract law outside the U.S.

CISG

The U.N. first approved the CISG 30 years ago, and it had gathered the requisite ten ratifications and accessions to take effect ("enter into force" to use the U.N.'s terminology) on January 1, 1988. As of June 1, 2010, when Albania's accession entered into force, the CISG was in effect in 74 countries, including Australia, Canada, China, France, Germany, Italy, Japan, Mexico, the Russian Federation and ten of the other fourteen former Soviet republics, Singapore, and South Korea. Great Britain and most of OPEC's member-states are notable non-signatories.

CUECIC

The U.N. General Assembly adopted the CUECIC in November 2005. Despite the International Chamber of Commerce's endorsement, only 18 countries have signed the convention, and none has acceded to, accepted, approved, ratified, or succeeded to it. Consequently, it is not yet in effect anywhere. Moreover, nearly 2-1/2 years have passed since Honduras became the most recent signatory in January 2008. The United States and most of its major trading partners -- excluding China, the Russian Federation, Singapore, and South Korea -- have not signed the CUECIC.

FED Introduces Credit Card Agreement Tool

After a relative lull in payment card regulation news over the past few months, cards are back front and center. The big news, of course, is that the financial reform bill passed by the Senate would limit debit card interchange rates and provide merchants more flexibility in steering customers toward various means of payment. More on that as the final legislation takes shape.

Today, I wanted to highlight the FED's credit card agreement tool. A little publicized provision of the Credit Card Holders Bill of Rights required the FED to establish a website providing ready access to the credit card agreements of major issuers. In theory, such a tool would permit inexpensive comparison shopping. In reality, the website is of limited utility to consumers. The agreements are long and complex, making comparison shopping difficult for everyone and probably impossible for non-lawyers. In addition, very small card issuers are not included.

Still, the tool may be of use to consumer groups who could review the offerings and make recommendations to consumers in language that would be easier to understand.

The New Math?

Q: When do 731 + 451 = 38?

A: When the subject is state enactments of Revised Article 7.

I reported earlier this month on recent state enactments of Revised Article 1 and the 2002 amendments to Articles 3 and 4. I didn't forget Revised Article 7; I was simply waiting for definitive action on bills in two states that had made their way to their respective governor's desk, but on which neither governor had yet acted.

Last Thursday (May 27) and Friday (May 28), Florida Governor Charlie Crist and Georgia Governor Sonny Perdue, respectively, signed Florida HB 731 and Georgia HB 451, making Florida and Georgia the 37th and 38th states to enact Revised Article 7. Both enactments will take effect on July 1, 2010.

Additional bills are pending in Massachusetts, Ohio, Washington, and Wisconsin. As of May 28, Massachusetts HB 89 and Ohio HB 490 are showing some signs of life; but Washington SB 5154 and Wisconsin AB 688 do not appear to be going anywhere in 2010.

Mississippi Makes Ten

Mississippi became the tenth state to enact the 2002 amendments to UCC Articles 3 and 4 when Governor Haley Barbour signed SB 2419* into law on April 13. SB 2419 will take effect on July 1, as will Indiana SB 501 (now Pub. L. No. 135-2009), enacted last year with a delayed effective date of July 1, 2010.


* - If SB 2419 looks familiar, it's the same bill by which Mississippi enacted Revised Article 1 -- making it a 1-3-4 bill, which is even more rare than a 1-3-4 double play!

UCC Article 1 Legislative Update

As I predicted in my last legislative update, Mississippi and Wisconsin are the 38th and 39th states to have enacted Revised Article 1.

As introduced on January 11, 2010, Mississippi SB 2419 initially included a choice-of-law provision similar to the original version of Revised § 1-301 that every enacting state has rejected and that the ALI and NCCUSL replaced in 2008. Subsequently amended to replace the introduced version of § 1-301 with language tracking the now-official version, SB 2419 passed the Mississippi Senate on February 10 and the Mississippi House on March 9, and Governor Haley Barbour signed it into law on April 13. Mississippi SB 2419, which adopts uniform Revised § 1-201(b)(20), defining good faith as "honesty in fact and the observance of reasonable commercial standards of fair dealing," takes effect on July 1.

As introduced on January 22, 2010, Wisconsin SB 472 initially included uniform Revised 1-201(b)(20), but was subsequently amended to substitute the pre-revised § 1-201(19) "honesty in fact in the conduct or transaction concerned" definition in existing Wisconsin law. So amended, SB 472 passed the Wisconsin Senate on April 13 and the Wisconsin Assembly on April 22, and Governor Jim Doyle signed it into law on May 12. Wisconsin Act 320 (née SB 472) should take effect on August 1.

As of July 1, the effective date for Mississippi SB 2419 and the delayed effective date for last year's Indiana SB 501 (which I previously discussed here and here), which replaces the existing "honesty in fact in the conduct or transaction concerned" good faith definition in Indiana's version of Revised Article 1 with the uniform Revised 1-201(b)(20) definition, will tilt the balance in favor or uniform Revised 1-201(b)(20) -- as opposed to retaining the pre-revised 1-201(19) definition -- to 28-10 in favor of uniform Revised 1-201(b)(20). When it takes effect on August 1, Wisconsin Act 320 will tilt the balance back slightly to 28-11 in favor of uniform Revised 1-201(b)(20).

Inexpensive Mother's Day Gifts.

There are 83 million moms in the United States! I just came home from the florist with my children ($10.47 in flowers), am getting ready to order pizza ($25 for two extra large at Pappa John's), and settling in for a movie night with my children ($40 for new dvds) for our little Mother's Day celebration! Mother's Day is a billion dollar business just behind the winter holidays! The cost in jewelry for moms is $2.5 billion,$1.9 billion for flowers for moms and $2.9 billion for eating out! Wow! (See CNN, Cost of Mother's Day). Just saw this piece on inexpensive gifts for Mother's Day!


Hopefully some of this consumer spending helps the economy. Happy Mother's Day to all the moms out there!

- JSM

So as Starbucks goes goes the economy?

Is Starbuck's success an indicator for the economy? Bloomberg had an interesting article today suggesting just that (See Starbuck's Results Prove Recession's Over). From the piece by Dan Mitchell:

Traffic in Starbucks (SBUX) stores increased by 3 percent. And the average bill grew by 4 percent. More people are going to Starbucks, and, once there, they're spending more. This marks the first time that traffic has grown in more than three years—since before the recession began. The company's operating margins were the highest in its history, growing to 13.4 percent. Of course, that's thanks largely to massive store closings and layoffs during the recession. But it can't happen without top-line growth.

While I'm not convinced that coffee sales at Starbuck's necessarily indicate market recovery, there might be an aspect to higher sales of comfort items that does indicate healthier markets. After all, when the economy is bad, the $3-5 cup of coffee might be the first thing to go for tight-budgeting consumers. More of a luxury or discretionary item that returns when finances are better. The return of consumer spending on discretionary items seems like a good thing. No hard science here, but the idea makes sense.

- JSM

Tales of a Prospective Homebuyer

Today's news reported that the tax credit is helping boost the market for existing home sales (See Bloomberg, U.S. Economy: Tax Credit Helping). The market for existing homes was up 6.8% in March. The homebuyer incentive runs through the end of April and provides an $8000 credit for new home buyers and $6500 for some other homebuyers who meet income requirements. (See, IRS: First-Time Homebuyer Credit).

The housing market is struggling for many reasons that affect current home owners and buyers alike. We are in the market for a new home as I will be joining the faculty at St. Thomas University in Miami next school year. So, we are looking for a home in South Florida. Weston, Florida to be precise. While I don't own a home in my name, I am not eligible for the tax credit as my spouse owns a home in Boston that we now rent out. And the income requirements on the lower credit put that out of reach. But, I am not complaining about that here today. So, what is it like to purchase a home in this market?

After spending a week over spring break viewing homes and making offers on several, we haven't yet secured a home. Well, we don't really need one until August anyways, but shouldn't this be easy with a housing market in crisis? The good news is that existing home sales in Florida are also up 24% over March 2009. (See, Florida's Existing Home). But, homeowners are in crisis in South Florida, with projections that recovery will not hit there meaningfully until 2011. See, Bloomberg: Florida's Housing Market). Despite the increase in sales, prices are down 3% over last year. The number of foreclosures and short sales are high. Due to depressed prices, people who don't have to sell their homes are not entering the market.

So, what did we find? A low inventory of existing homes and not too much to look at. Many homeowners in South Florida seem to have either bought high and are under water or bought low but have taken out additional mortgages on their homes making them underwater. That all ends with even homeowners who are not in trouble with their banks having difficulty selling because they either need to find a buyer who will way overpay over market (not overly likely) or come to a home sale closing with lots of cash. We saw plenty of homes where the seller must ask an over-market price because their mortgages are high, they don't have cash to close and don't qualify for a short sale. Other home owners have cash to close but are bitter at having to spend it this way on a home that is worth much less than two years prior.

Add to all of this short sales and foreclosures. We went to see one shortsale home that was unapproved by the bank where as we walked through the home the agent told us of all the things the current owner was going to remove from the home (appliances, light fixtures . . .). Shortsales can also take months to close if they ever do. We also saw a foreclosed home where the prior owner trashed the home before leaving, taking fixtures, ac units and just doing general damage to the home probably costing $100k to fix. (See, Some Ex-Owners Trashing; Owners of Foreclosed Homes Steal Appliances). Challenges indeed as this is more than I am interested in tackling at this point in time.

I've purchased homes before and always found it a pretty easy process. Most people tend to act rationally and agreeing to a deal for a home after some negotiation. While I am sure we will secure a home before August, tackling South Florida's real estate challenges is not the same as prior home purchases. If the federal government does not extend the tax credit, we may see this little increase dissipate. There are also plenty of foreclosures still in the pipeline that will continue to depress prices and hamper the market for some time. Homebuyers can purchase, but the market is just not the same.

- JSM

Obama Weekly Address on Financial Regulation

In case you missed Obama's address this past weekend on financial regulation, here it is:

No more taxpayer bailouts because a financial company is too big to fail was one of the key messages. Can this really happen? I am skeptical, but I guess we'll have to wait and see what the politicians agree to. Obama is correct in his assertion that something has to change in order to prevent the same crisis from reoccurring. Apparently, there will be much more coming on this issue in the near term.

- JSM

Federal Reserve Consumer Information on Overdrafts

With its new focus on being consumer-friendly, the Federal Reserve has published a circular on what consumers need to know about the new debit card overdraft rules. Remember, as of August 15th, banks cannot include customers in their overdraft services for ATM/Debit card transactions without their opting-in. The rules apply to new accounts opened beginning July 1. The Fed has even provided a copy of the standard form disclosure that it approved for banks to use, so that consumers can (hopefully) recognize the form when they get it in the mail (see Form). With an emphasis on consumer "choice" and education, it is good to see the Fed getting the word out.

Will consumers understand what this is all about? I suspect so. Just this last week, our 20 year old baby-sitter commented that she wished her bank, Chase, would follow Bank of America and give up on overdraft fees (See Hooray for Bank America). Apparently the word has gotten out positively for BOA. She'd been hit $35 on a debit card overdraft of less than $5. Expensive lesson, yes, but just one example where the new rules will help. Better to be denied at the counter, rather than get the hefty fee. I told her not to worry, the new rules are coming soon.

- JSM

Hooray for Bank of America's New Overdraft Rules?

Is the end of the $39 cup of coffee in sight (See How Your $4 Cup of Coffee Can Cost You)? Today, Bank of America announced that it is doing away with debit card overdraft fees and will just decline consumer transactions that result in an overdraft on their debit card (See Bank of America to End Bank Overdraft Fees). Seems that is just what consumer groups have said for some time that banks should do, but that some banks claimed they couldn't technologically do. Bank of America is crediting itself with listening to consumer preferences on debit cards and their desire to help customers avoid unexpected fees. Bank of America has turned into the kinder, consumer friendly bank? Apparently, they are even notifying customers now when an ATM withdrawl will result in an overdraft (and a $35 fee), rather than just pushing the transaction through. But not to worry, Bank of America will continue to have overdraft coverage that most consumers want on their checks and routine account payments. Rather than trying to convince customers that they really want the $39 cup of coffee, Bank of America has apparently caved on this one. Good for them. Doing the right thing by customers (even if under pressure from the Federal Reserve) is a big step. Hopefully, this will set the tone for other large banks to follow suit. Apparently Citibank has stopped charging overdrafts on debit and ATM transactions.

For those banks not doing away with these fees, the Federal Reserve's new opt-in rules on debit cards are due to come into effect on July 1, 2010. The Federal Reserve’s Final Rules came down on the side of the consumer on many issues. Because the Truth-in-Lending Act applies to credit cards, but does not apply to debit cards, the Federal Reserve’s Final Rules are under the Electronic Funds Transfer Act (15 U.S.C. 1693 et seq.) (EFTA). The thrust of the Final Rules is primarily disclosure and consent based, rather than tackling some of the troublesome banking practices involved in the processing of overdrafts for enrolled customers and the amount banks charge for overdraft services. Specifically, the Final Rules ensure that:

(1) banks cannot enroll customers in overdraft services for ATM and one time debit card transactions without their consent (an opt-in);
(2) banks do not condition the payment of overdrafts on other items, such as checks and ACH transactions, on the customer opting-in for ATM and debit card services and cannot decline overdrafts on checks and ACH transactions for this reason;
(3) banks provide the same account terms, conditions and features to customers whether or not they opt-in; and
(4) the opt-in approach applies to existing and new accounts beginning July 1, 2010.

The Final Rules specifically declined proposals regarding the practice of debit card holds, suggesting instead that banks, networks, and merchants should address this problem.

With any luck, we'll see other large banks doing away with the debit and ATM overdrafts over the coming months. Seems easy enough just to deny the transaction at the counter. Not sure I'd say this, but good job Bank of America.

- JSM

FunnyorDie.com Presidential Reunion

In case you've not seen it, former Presidents Bush, Clinton, Bush, Ford, Carter and Reagan wake up President Obama in the middle of the night to urge him to pass the Consumer Financial Protection Agency (CFPA). One of the funniest parts is President Bush commenting that he had no idea that when he put the Iraq war on his credit card, he'd be paying 28%! Here it is:

- JSM

New Sales Survey Available!

I've just put the new Sales Survey up on SSRN. It will be out in the Business Lawyer sometime next summer. An excerpt regarding a a fun warranty case, Nigro v. Lee, 63 A.D.3d 1490 (N.Y.A.D. 3 Dept. 2009) about a car sold on Ebay:

Whether a seller’s statements made during negotiations or through advertising constitute an express warranty is a common point of contention between disgruntled buyers and their sellers. The Supreme Court, Appellate Division, of New York upheld summary judgment in favor of the defendant seller from Nevada who advertised a 1995 Mercedes Benz automobile on Ebay as “gorgeous” and with just minor blemishes, but sold the car “as is.” Upon arrival of the car to the buyer in New York, the buyer discovered the car had been damaged in an accident and had been painted, the upholstery was stained, the undercoating was worn out and parts were rusted, and that body work would cost $1,741.66. While the court recognized that any description of the goods could create an express warranty, the seller’s generalized expression was merely the seller's opinion of the car and constitutes “no more than ‘puffery,’ which should not have been relied upon as an inducement to purchase the vehicle,” particularly in light of the fact that this was a used car transaction. Moreover, the plaintiff could have discovered any deficiencies in the car by performing a routine inspection, which he did not do.

See U.C.C. 2-313.

- JSM

New Credit Card Rules Go Into Action

Happily, the CARD act provisions are in full effect now. So, what to look for on your statements? I think the disclosure about how long it will take you to pay off your credit card if you only pay the minimum is helpful, especially when coupled with how much you need to pay in order to pay off the debt in just three years. But, consumers must actually read the statements to get the disclosure . . .

CNN has a good piece on credit card reform (click here, as I could not embed it). With card companies increasing rates, there has been a greater proliferation of high rate cards. First Premier has a card for high risk customers that carries a 59.9% interest rate! Yikes! Interestingly, the National Credit Union Administration caps credit unions at 18% interest on credit union cards by law, but private card companies have no such similar limit (See LA Times, Seattle Times). Of course, its all about access to credit, according to the American Banker's Association. While I can understand access to credit and the need for people to build credit, 59.9% is over-the-top and at that rate perhaps some people should not be getting credit, as the cost is too high. Perhaps there is a role for the traditional usury statutes again.

Whose to blame for all this mess? Well, the Supreme Court had a part to play with its 1978 decision in Marquette vs. First Omaha Services making it legal under the National Bank Act for banks to locate in states without interest rate restrictions. Although the Court recognized that this would impair the effectiveness of state usury laws, the problem is "better addressed to the wisdom of Congress than to the judgment of this Court." Despite the passage of the CARD Act, Congress has not addressed the interest rate differential. Perhaps the increases in rates after the CARD Act might provide some impetus for changes to the extent banks overreach in their charging of customers.

- JSM

UCC Legislative Update

It has been a fairly quiet eight months on the UCC legislative front since my last update.

Revised Article 1

As of March 1, 2010, Revised Article 1 was in effect in thirty-seven states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and West Virginia.

State legislatures continue to grapple with the definition of "good faith," although the uniform § R1-201(b)(20) definition has the upper hand. Of the 37 enacting states, 26 have adopted the uniform definition, while 11 have retained the pre-revised definition that, in conjunction with § 2-103(1)(b), imposes a different good faith standard on merchants and non-merchants. Effective July 1, 2010, one of those eleven minority states (Indiana) will join the majority as SB 501, enacted in 2009 primarily for the purpose of amending Articles 3 and 4, also revises Ind. Code § 26-1-1-201(19) to require all parties to act honestly and to observe reasonable commercial standards of fair dealing. (At present, Indiana's Revised Article 1 requires only “honesty in fact.”) This change will take effect July 1, 2010, and further tip the balance among enacting states in favor of the unitary good faith definition in uniform R1-201(b)(20).

With many state legislatures occupied with more pressing issues of the moment, 2009 yielded only three new adoptions -- Alaska, Maine, and Oregon -- down from five in 2008, and seven in 2007. While a downward trend in new enactments eventually becomes inevitable once two-thirds of the states have signed on, 2009's three enactments were the fewest in a year since 2003 (when Idaho became the third state overall to enact Revised Article 1).

As of March 1, only two states -- Mississippi and Wisconsin -- appear to be serious candidates to enact Revised Article 1 in 2010.

Mississippi SB 2419, introduced and amended (to replace a choice-of-law provision that appeared to have derived from the original § R1-301 that all 37 enacting states have declined to adopt and the ALI and NCCUSL have disavowed with one that reflected the substitute § R1-301 the ALI and NCCUSL promulgated in 2008) in January, unanimously passed the Mississippi Senate on February 10. It is presently before the House Judiciary Committee.

Wisconsin AB 687, introduced on January 25 and amended on February 16 to replace the uniform R1-201(b)(20) "good faith" definition with the pre-revised 1-201(19) version, received the Assembly Committee on Financial Institutions's unanimous approval on February 26. It is presently before the Assembly Rules Committee.

Two other bills, Massachusetts HB 89 and Washington SB 5155, seem less likely to produce results.

Massachusetts HB 89, the fifth attempt to enact Revised Article 1 in the Commonwealth, was assigned to the Joint Committee on Economic Development and Emerging Technologies on January 20, 2009. No further action had been reported as of March 1, 2010.

Washington SB 5155, introduced on January 15, 2009, appeared to be drawn directly from the language of official Revised Article 1 circa 2001, including the original version of § R1-301. At an initial public hearing on January 23, 2009, all those testifying in support of and in opposition to the bill opposed the choice-of-law provision. The Washington Senate appears to have taken no further action except to "reintroduce and retain [the bill] in present status" on January 11, 2010.


Article 2 and 2A Amendments

As of March 1, 2010, only three state legislatures (Kansas, Nevada, and Oklahoma) have considered bills proposing to enact the 2003 amendments to UCC Articles 2 and 2A. The Kansas and Nevada bills died on the vine.

In 2005, Oklahoma amended Sections 2-105 and 2A-103 of its Commercial Code to add that the definition of “goods” for purposes of Articles 2 and 2A, respectively, “does not include information,” see 12A Okla. Stat. Ann. §§ 2-105(1) & 2A-103(1)(h) (West 2009), and amended its Section 2-106 to add that “contract for sale” for purposes of Article 2 “does not include a license of information,” see id. § 2-106(1). The net effect is similar to having enacted Amended §§ 2-103(k) & 2A-103(1)(n), both of which exclude information from the meaning of “goods” for purposes of Article 2 and 2A, respectively. Otherwise, no state has enacted any of the 2003 amendments.

While the list of states enacting any of the 2003 amendments may not change in the near future, the number of amendments Oklahoma enacts may. Introduced on February 1, 2010, Oklahoma HB 3104 proposes amendments to forty-nine sections of Article 2 and four sections of Article 2A. The bill includes neither the reformulation of Sections 2-206 and 2-207 nor the addition of Sections 2-313A and 2-313B included in the 2003 Article 2 amendments. Many of the amendments appear designed to facilitate electronic signatures and transactions and to accommodate the terminology surrounding them that grows out of UETA, E-SIGN, and Revised UCC Articles 1 and 7, or to otherwise align Article 2 and 2A terminology with that used in Revised Articles 1 and 7. That is not to say that HB 3104 proposes only cosmetic changes to Oklahoma's versions of Articles 2 and 2A. Several of the proposed amendments alter existing substantive rights, obligations, or remedies. Some of those alterations (e.g., raising the § 2-201 floor from $500 to $5,000) do not seem to be inherently controversial; some (e.g., granting/recognizing a right to cure after a justifiable revocation) may or may not be controversial depending on how courts have interpreted the current Article 2; and some (e.g., giving sellers the right to recover consequential damages) do seem inherently controversial. More on this if the bill progresses.


Article 3 and 4 Amendments

As of March 1, 2010, the 2002 amendments to Articles 3 and 4 were in effect in eight states: Arkansas, Kentucky, Minnesota, Nevada, New Mexico, Oklahoma (for a second time), South Carolina, and Texas. They will take effect in Indiana on July 1, 2010.

As of March 1, 2010, the only pending Articles 3 and 4 bill is Massachusetts HB 90, which has been languishing for more than a year.


Revised Article 7

As of March 1, 2010, Revised UCC Article 7 was in effect in thirty-six states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia.

Additional bills are currently pending in Georgia, Massachusetts, Washington, and Wisconsin; but only the Wisconsin bill appears to be making any progress.

First introduced on February 18, 2009, Georgia HB 451 won unanimous approval in the Georgia House on March 12, and the Senate Judiciary Committee recommended passage on March 26. However, the legislature adjourned on April 3 without a third reading and final action in the senate. HB 451 was "recommitted" to the Georgia Senate on January 11, 2010. No further action has been reported.

Massachusetts HB 89, which also proposes adopting Revised Article 1, was assigned to the Joint Committee on Economic Development and Emerging Technologies on January 20, 2009. No further action has been reported.

Washington SB 5154 was introduced on January 15, 2009, scheduled for a public hearing on January 23, 2009, and then stalled, like its Revised Article 1 counterpart, but without as compelling a reason. It was "reintroduced and retained in present status" on January 11, 2010. No further action has been reported.

Wisconsin AB 688 was introduced on January 25, 2010. On February 22, the Assembly Committee on Jobs, the Economy and Small Business unanimously recommended passage. The bill is now before the Assembly Rules Committee.

ESPN on How to Create Markets

Humorous link on supply and demand. Though I must agree. Mike Greenberg is far more valuable than Kenny Mayne!

The Roller Coaster Ride of Bankruptcy

When this news story popped into my feeder today, I knew Google understands me. Roller Coasters, Fixtures, Bankruptcy, Creditor priority challenges... Its all there.

Six Flags Inc., currently in chapter 11 Bankruptcy, has decided to close its Louisville Park -- Kentucky Kingdom. The dispute relates to the ownership of certain rides in the park. The creditors are Six Flags America and the State of Kentucky. The state of Kentucky (in what appears to be a futile argument) alleges that the rides are affixed to the realty and therefore belong to the state of Kentucky. (The park leased the real property from the State of Kentucky for a term of years). The state also argues that the lease provides that if Six Flags terminates the lease with the state, the landlord will accede to the ownership of the rides.

Taking these issues separately, its clear that the lease agreement between Six Flags and the State of Kentucky establishes certain privileges to personalty on behalf of Six Flags (the tenant). Under the common law trade fixtures doctrine, a tenant has the right to remove those things he attaches to the realty in furtherance of his trade. (I believe its pretty clear that amusement rides would be in furtherance of Six Flag's trade). The single caveat is if the fixtures cannot be removed without damage to the realty. Thus, the rides are not treated as realty, but rather as personalty.

Taking the state's argument that a provision in the lease grants it an interest in the rides if Six Flags terminates its contract with the state, there seems to me to be a question of what type of interest the state obtains. First, in theory the state could obtain such a right, at least in as much as lessees may grant an interest in its property to its lessor. The question is what kind of transaction does this grant create. It seems that when a creditor (in this case a landlord) reduces its claim to a debtor's (in this case a tenant's) property, that is a security interest, and therefore must comply with the provisions of Article 9 -- the problematic point being if there is another creditor in the picture. The state may very well have a security interest, but may lose out in the priority scheme if other creditors have a claim.

If the state's position is that it has a state possessory lien on the tenant's possessions for failure to pay rentals (which does not appear to be the state's theory), the case may be more clear cut -- particularly given the preference for liens under Article 9-333.

Whichever it is, we will keep an eye on this case to see what the bankruptcy court does with the various roller coasters. If the Court needs (after a safety evaluation) a thrill description of the roller coasters in Kentucky Kingdom park, I would be happy to offer my services; though I suspect I would need to include at least four other theme parks in my assessment in order for my report to be complete.

Image is of the Chang Roller Coaster, Courtesy of Coaster Gallery. Chang's statistics are:

Built: 1997

Composition: Steel

Height: 154 Feet

Drop: 144 Feet

Top Speed: 63 mph

Ride Time: 2 Minutes, 30 seconds

MLR (Marc )

Odel Initiative on Consumer Protection Legislation

Professor David Oedel over at Mercer University Law School is heading up a legislative proposal that some of you might be interested in signing onto:

Dear Senators and Congresspersons,

As law professors concerned about encouraging the most thoughtful, effective and flexible forms of financial reregulation, we urge that federal law should permit states also to protect financial consumers. In other words, any new financial regulation emerging from Congress this year should include a provision that would allow states the freedom to protect financial consumers with state rules that are stricter than (but consistent with) the minimum consumer protection standards established by federal law. This basic model of state regulatory freedom to protect state interests in ways that do not conflict with federal law has worked well in a number of other arenas, such as in some areas of environmental protection and insurance. Our sense is that many recent financial troubles could have been averted had the states been freer to regulate on behalf of their consumers on the main streets of their states.

We do not propose to alter the current law of federal preemption as it relates to national systemic safety and soundness. Our proposal is only to free up state innovation on matters of consumer financial protection.

Thank you for your consideration.

If you are interested in being a part of this initiative, contact Dave at oedel_dg@law.mercer.edu with e-mail, including your name, title, and institution.

- JSM