Quote of the Day - I wish to be cremated. One tenth of my ashes shall be given to my agent, as written in our contract.
What Kind Of An Agreement Does It Take To Buy Real Property?
How about this: a written memorandum that sets out a short description of the property, the price ($16,750.00 listed, but was missing digits and meant by both parties to be $16,750,000.00). The memorandum included a formula to determine the price, and was signed by the buyer and then followed by a letter confirming the terms, signed by both the seller and the buyer, together with a good-faith deposit.
Don't get fooled by the missing digits; the parties both agreed the figure was meant to be $16,750,000.00. Still think these writings were sufficient? Here's a clue: to create a legal, binding agreement requiring one party to sell property to another, you generally must have: (1) a description of the property; (2) a description of the price; (3) a written document containing those terms; and, (4) the signatures of both parties. So, except for the missing digits, it sounds simple enough, right?
Nope. Not even close.
It wasn't the missing digits that caused the problem. Both parties agreed they meant $16,750,000.00. It was the formula that caused the misunderstanding between the parties.
The seller told the buyer the numbers that were in his rent rolls, who generated the final $16.750M price based on the formula. The parties wrote down the terms of the deal and signed it. The seller then sent the actual rent rolls to the buyer, who applied them to the formula in the written documents, and came up with a purchase price of $14,404,841.00, just over two million dollars short of the figure written in their agreement.
Needless to say, the seller wasn't happy with the shortfall, and refused to sell. The buyer sued, claiming the agreement was sufficient to require the seller to sell the property at the $14 million figure, given the formula in the agreement. The seller, on the other hand, claimed the purchase price was the one closer to $17 million.
This case isn't an easy one. In the trial court, the sellers won, and the contract was determined to be insufficient to require the sale. The court admitted evidence of the parties' explanation of the terms of the sale, and determined that the parties may have meant to apply the formula to the rent rolls to determine the final price or may have meant to actually set a firm purchase price in the document, and the formula was surplusage, which created a contract that couldn't be enforced because it was too vague.
In the appellate court, however, the buyer won because that court believed that the terms were sufficient, and could be interpreted by the testimony of the parties.
The Supreme Court disagreed, and ruled instead that while extrinsic evidence like the testimony of the parties is admissible to determine what the parties meant to do in their contract, any evidence outside the actual contract could not be used to contradict the terms inside the contract. In this case, the import of the California Supreme Court's ruling meant that the price term, an essential element of the contract, was so ambiguous that no court could interpret what the parties were trying to do.
The moral of the story? Hire someone who went to law school to draft complicated contracts, even if you don't think they're complicated.
Unions Can't Represent Employees In Overtime Cases Without Authorization
Under the Private Attorney General Act of 2004, which authorized employees to sue their employers for Labor Code violations such as alleged failure to pay overtime and for time spent working instead of taking meal and rest breaks, unions suffered a setback in a court ruling earlier this week. The PAGA is more commonly called the "Sue Your Boss" law and the "Bounty Hunter's Statute."
While employees can assign their claims to a union to sue on their own behalf, unions cannot step in to court on the employee's behalf without permission. The employees have to bring suit in their own name or actively assign their claims to the union, according to the ruling.
It's a significant procedural setback for unions, and protects employers from unsubstantiated threats of "automatic" class actions by unions. Perhaps not too surprising, with this opinion the courts have taken back their authority to determine when to certify class actions instead of allowing a union to represent all of an employer's employees without having asked those employees first and obtained their permission.
Can You Curse At The Airport?
(Even Though You May Have Good Reason)
MIPTC doesn't recommend it, even though I was a sailor at one time and can keep up with the best of them.
Curse, that is.
It seems that Elizabeth Venable, a Ph.D. candidate at UC Riverside (in dance history and theory, of all things), was leaving the baggage area at the John Wayne Airport and turned the air blue. A nearby Sheriff's Deputy heard the foul language, and concerned about the effect on nearby children, cautioned the woman to mind her tongue, as my Grandmother would say. Venable instead asked an expletive-laden question of the Deputy, and was promptly cited for a misdemeanor.
More properly, for violating an Orange County law that bans "disorderly, obnoxious [or] indecent" behavior at the airport. MIPTC was unaware that we actually had a separate set of laws that apply at the airport, but apparently there's more trouble down there than I knew.
Perhaps not too surprising, she was none too happy with the misdemeanor charge, so she's fighting back with a civil suit alleging a violation of her First Amendment right of free speech, and using the same argument to defend against the criminal charge.
According to the LA Times, "legal experts" are conflicted over whether she'll win. The problem, though, is that the Times asked two laywers for an opinion, and then came to the conclusion that lawyers were conflicted. Anytime you ask two lawyers for an opinion, you'll get four, so there should have been no surprise.
MIPTC predicts she'll likely lose at the trial court, lose again at the local court of appeal, and then win a reversal at the Supreme Court. The first two, remember, are here in The OC, and we understand good manners. Not to say that the Supremes don't; it's just that things are a bit different up there in Sacramento.
Lawyer To Lawyer Internet Radio Goes to Divorce Court
The idea of marriage and divorce is not what it was years ago for many people. On Lawyer 2 Lawyer, we look at divorce law today and explore the world of marriage and how it has changed over the years.
Join me and my fellow Law.com blogger and co-host Robert Ambrogi as we welcome experts Attorney Sherri Donovan, owner of the law firm, Sherri Donovan & Associates, P.C. and author of the published book, "Hit Him Where It Hurts-The Take No Prisoners Guide To Divorce" and Attorney Daniel E. Clement, principal in the Law Offices of Daniel E. Clement, and writer of the blog entitled, "New York Divorce Report, New York's Family and Law Blog."
Don't miss it!
MIPTC Posting On Political Mavens Site
MIPTC has been invited, along with almost 200 other bloggers, to post on the Political Mavens website. Some of the more prominent posters include George Will, Cokie Roberts, Ed Koch, Dave Barry, Mitch Albom, Bill O'Rielly, and many others you'll probably recognize.
According to the head maven, Binyamin Jolkovsky, Political Mavens ranks in the top 10% most-visited sites on the web. MIPTC will continue right here, so you don't need to change channels, but a quick view of our sister site will expand your horizons.
US Patent Holders Can't Use US Courts To Enforce Foreign Patents
Many EU countries and patent holders outside the US breathed a sigh of relief earlier this week because of something that didn't happen. The United States Federal Court of Appeals decided not to decide.
Foreign patents, that is.
It seems that Jan K. Voda, M.D. wanted to enforce three Angioplasty guide catheter patents granted by the USPTO to him. He brought suit against Cordis Corporation, a medical device manufacturer in Oklahoma. Voda also alleged that Cordis was selling the catheter in foreign countries and those sales violated foreign patents that Voda held.
Since Voda was already in US District Court in Oklahoma over his three US patents, he figured that he might as well get two for one: he asked the Court to assume supplemental jurisdiction over the foreign patents. That court let him try, but the US Federal Court of Appeals reversed that decision.
Trouble is, there are several foreign conventions and provisions in US law that require us to respect their laws and them to respect ours. The Paris Convention for the Protection of Industrial Property requires the signatory countries to maintain the independence of each others' patent systems.
It worked. US patent holders can't litigate foreign patents in US courts, but will have to go to the foreign country where the patent is being infringed. It should work in reverse, too.
Maybe we need an international patent court?
Can You Truly Be Anonymous?
The Internet provides a perhaps comfortable feeling that you can sit in front of your computer monitor and no one will ever find out who you are. Feelings aside, the assumption is far from the truth. Your particular computer is identified by its own IP (Internet Protocol) address. Sure, sophisticated users can attempt to spoof IP addresses, but nothing truly works to hide your identity.
Even aside from the technological issues, Internet users have used monikers and other "anonymous" names to hide their identity. For the most part, those attempts don't work, either.
Anonymity is sometimes troubling to those who are attacked anonymously on various websites and chat rooms, and at least one of those individuals took steps to "out" the anonymous attacker. In Teaneck, New Jersey, a firefighter and the town council had a long-running, 10-year litigation battle over alleged civil rights violations. While the town council and the firefighter fought it out in the court, a second battleground emerged on a locally popular website, http://www.nj.com/.
The barbs hurled back and fourth involved the firefighter, William Brennan, and an anonymous "AntiBrennan," who called Brennan a "litigation terrorist," a "pathetic psychopath" and a "paranoid-delusional, over-paid-under-worked sicko." Brennan responded, calling AntiBrennan "another anonymous coward" and a "hateful beast."
But it didn't end there. Brennan sent a subpoena to nj.com, and found out that AntiBrennan was actually Teaneck Township Council Member Michael Gallucci. Once exposed, however, the tables turned, and Gallucci was called on to resign his position on the Council and ultimately (and allegedly) so ridiculed that he sold his house at a loss and moved out of town.
Some view the case as a test of whether Internet users will be able to sit behind their monitor and remain anonymous. Maybe they should just write a book, instead.
Check That Credit Card Recepit - You Could Be Sued
Under the Federal Fair and Accurate Credit Transactions Act, cash register receipts cannot display either the expiration date or more than the last five digits of a customer's credit card number. The law went into effect at the end of last year in December 2006, but applies only to registers in use before January 1, 2005. Credit card machines produced after that date had to be in immediate compliance.
So, now's a good time to check your credit card receipts because nearly forty-five lawsuits have been filed in and around Los Angeles County, California, alleging violations of the Act. Penalties range up to $1,000 per incident, and the suits can be filed as class actions, multiplying the penalties dramatically.
Lawyers who filed the suits chose California because of a favorable interpretation of the Act by the Ninth Circuit, which view noncompliance as "reckless disregard" of the Act, while other circuit courts require a much higher standard of proof of intentional and knowing violations. In any event, the split between the circuit courts should be resolved shortly, with a ruling pending in two cases consolidated before the U.S. Supreme Court: Safeco Insurance Co. of America v. Charles Burr and GEICO General Insurance Co. v. Ajene Edo, that highlight these two, conflicting results.
In the meantime, however, business owners would be wise to check their credit card machines and reprogram them, if necessary.