March 15, 2005
Revised Article 1 Update
The Arkansas Senate passed HB 1497 (see my 3/10 post for more details about the bill) and transmitted it to the governor for approval. Assuming the governor signs or does not veto the bill, Arkansas should be the first state to enact Revised Article 1 this year. (Brooklyn's Neil Cohen called my attention to the fact that the same bill includes the 2002 amendments to UCC Articles 3 and 4 and that this would make Arkansas the second state to adopt those amendments. Thus far, only Minnesota has done so.)
Elsewhere, New Mexico's House Judiciary Committee unanimously recommended passage of, and its House of Representatives unanimously passed, HB 834. The bill is now before the New Mexico Senate Judiciary Committee.
And, the Illinois Senate's Judiciary Committee unanimously recommended passage of SB 1647. If enacted in its present form, Illinois SB 1647 would make Illinois the first state to adopt uniform R1-301.
March 14, 2005
Cases: Breaching employer can't enforce non-compete
An employer who breaches an employment contract by failing to appropriate money to a bonus pool cannot subsequently enforce an employee non-compete clause, even when the employee is terminated for cause, according to the Florida Court of Appeals.
Carl Domino sold his business to Northern Trust, but agreed to stay on under an employment agreement that contained a non-compete clause that would apply if he quit or were fired "for cause." The contract also required Northern to set aside $7 million for bonuses. Northern only put $4 million in the bonus pool, and Domino complained. He subsequently was fired for improper expense reports and soliciting another company employee to leave.
Northern sued for an injunction against Domino. The court held, however, that by failing to fund the bonus pool, it was not in material compliance with the contract, and one who was itself in breach could not claim the equitable remedy of an injunction.
Northern Trust Investments, N.A. v. Domino, No. 4D04-2662, 2005 Fla. App. LEXIS 2457 (4th Dist. March 2, 2005).
Today in history—March 15
44 B.C.: Julius Caesar is assassinated on the Ides of March.
1493: Christopher Columbus arrives back in Spain to tell everyone he’s reached the Far East.
1767: Andrew Jackson, who will give up law practice for soldiering and politics, is born in a backwoods hovel near Waxhaw, North Carolina.
1820: Maine joins the Union as the 23rd state. It had previously been part of Massachusetts.
1827: King’s College at York receives its royal charter. It will become known as the University of Toronto in 1849.
1877: The first cricket "Test Match" takes place between England and Australia at the Melbourne Cricket Ground. Australia wins, though England takes the rematch.
1906: Two Britons, fiancier Henry Royce and engineer Charles Stuart Rolls, charter their new company, Rolls-Royce.
1909: One of the world’s great department stores, Selfridge’s, opens in London.
1933: Future law professor and U.S. Supreme Court Justice (Joan) Ruth Bader Ginsburg (Columbia Law 1959) is born in Brooklyn, New York.
1970: The "World’s Fair" craze continues with the opening of one in Osaka.
Status to contract in international shipping
The world of free contract is making inroads in the international shipping business, where so-called non-vessel operating common carriers (NVOCCs) have been freed from restrictions and are now in the process of evolving contract mechanisms for doing business. Steven W. Block of Seattle’s Betts Patterson Mines has an interesting discussion of what's going on.
March 13, 2005
Cases: Clear, reasonable LDC bars parol evidence
A "clear and ambiguous" liquidated damages clause that is conceded to be reasonable will be enforced in its plain language, according to the California Court of Appeals in an unpublished opinion, and oral testimony as to some consistent oral understanding will not be admitted.
The real estate contract at issue required the buyers to pay certain amounts for each day the deal was in escrow, but it also required an up-front payment of $700,000. The contract said that this amount would be seller’s "sole and exclusive remedy in damages." When the deal went sour, the sellers sued, arguing that the liquidated damages were in addition to the daily amounts that were supposed to have been paid and proffering evidence of such an understanding.
No dice, said the court, holding that the language was clear and unambiguous, and no party argued that it was unreasonable. Oral testimony as to some other agreement was therefore barred, and the court affirmed summary judgment for the defendants.
Lawrence v. Verner, No. C046921, 2005 Cal. App. Unpub. LEXIS 1757 (3d Dist. March 1, 2005).
Today in history—March 14
1794: Eli Whitney receives a patent for the cotton gin, which will make raising the crop in the American South profitable.
1813: U.S. Supreme Court Justice Joseph Philo Bradley, who before going on the bench will be a prominent patent and commercial lawyer, is born in New York.
1883: Karl Heinrich Marx, the bourgeois champion of the proletariat, dies at London.
1900: Congress passes the Gold Standard Act, which puts the U.S. on the gold standard. Duh.
1923: The first-ever live broadcast of an ice hockey game occurs in Regina, Saskatchewan.
1932: Inventor and industrialist George Eastman blows his brains out with a pistol, leaving his estate to the University of Rochester. He called his company "Kodak" because he liked the letter "K."
1989: The U.S. bans importation of "assault rifles" by anyone except the government. Since no one can really define "assault rifle," the ban has little effect.
From The Godfather (1972)
Michael Corleone: Well, when Johnny [Fontaine] was first starting out, he was signed to this contract with a big-band leader. And as his career got better and better he wanted to get out of it. Now, Johnny is my father’s godson. My father went to see the bandleader, with a contract for $10,000 to let Johnny go, but the bandleader said no. So the next day, my father went to see the bandleader again, only this time with Luca Brasi. Within an hour, the bandleader signed the release, with a certified check of $1,000.
Kay Adams: How did he do that?
Michael: My father made him an offer he couldn’t refuse.