Selected Cases and Materials

courtesy of
Law Office of Jeremy D. Weinstein, P.C.

1512 Bonanza Street (The Old Fire Station)

Walnut Creek

California

Telephone: (925) 943-2708; Telefacsimile: (925) 943-3105

 

 

Contract Drafting

 

    Use of "shall"

Olympic Mills (1st Cir. 2007) (drafting pitfalls)

PacifiCorp v. Does (E.D. Cal. 2004) ("shall" found to be precatory- Court counsels against using it)

    Use of "and/or"

Sproule v. Taffe (Ill. App. 1938) (and/or is a "pollution of the English language")

Employer's Mutual Ins. v. Tolefsen (Wis. 1935) (and/or is "the child of a brain ... too lazy or dull to express his precise meaning")

Good article by Ted Tadjen on the poison of "and/or"

    Controversial commas

Comma in the Bali Action Plan of the Kyoto Protocol

Alliant Telecom (Canada Tel. Comm. 2006) (expensive comma)

    Gettting the Formula wrong

Economist article on Goldman Warrants

    Boilerplate

Choice of NY law (see p. 3 of Clifford Chance Bond Markets opinion)

Alston & Bird memo (is obligation to copy investors on regulatory filings an obligation to make those filings?)

    Forum Selection

Spenta Enters v. Coleman (N.D.Ill. 2008) (Katten Muchin memo- selecting as exclusive forum venue with no federal courthouse waives federal claims)

    Jury Trial Waivers

Coin-flipping jury

    Judge Painter

Legal Writing 201 (Judge Painter; see last page)

Kohlbrand v. Ranieri (Ohio App. 2005) ("'free' and 'clear' title")

State ex rel. Hilltop v. Cincinnati (Ohio App. 2006) (well-written takings opinion)

 

Energy Trading

 

Weinstein, "Practical Considerations," Futures & Derivatives L.Rep., Jul./Aug. 2006

Weinstein, "Escape from the Island," Futures & Derivatives L.Rep., Nov. 2004

Weinstein, "Master Netting Agreement Developments," Futures & Derivatives L.Rep., May 2003

National Gas Distributors (4th Cir. 2009) (forward within bankruptcy def. of swap)

FERC Order 717-B (drafting counsel not necessarily market affiliate)

In Re Semcrude (Bankr. D. Del. 2009) (safe harbor contracts)

CFTC v. Erskine (6th Cir. 2008) (futures v. forwards)

PacifiCorp v. Does (E.D. Cal. 2004) (the futility of seeking just conduct from the CAISO)

PacifiCorp v. BPA (D. Ore. 2003) (arbitration compelled)

McDermott Memo on NAESB contracts as forwards (2007)

FERC inquiry into Enron Online (FERC clean bill of health for Enron on 8/16/01)

FDICIA "financial institution" definition regulations (one need not be a bank to be a "financial institution")

State Laws on Taping Phone Calls, by Reporters Committee

Explanation of why emissions credits, RECs and Carbon offsets are not securities or swaps (2010)

 

Electricity and the UCC

 

Norcon v. Niagra Mohawk (NY 1998) (electricity not a good in NY, but UCC applied)

Enron Power Marketing v. Nevada Power Co. (S.D.N.Y. 2004) (electricity is a good in Utah under (under the WSPP))

In Re PG&E (N.D. Ca. 2004) (electricity is a good in California)

Searles Valley Mineral v. State Bd. of Equalization (Cal. App. 2008) (electricity "tangible personal property")

Weinstein, "Practical Considerations," Futures & Derivatives L.Rep., Jul./Aug. 2006

 

UCC

 

Lowenstein Sandler memo on Terrastar (line on FCC license economic value)

Porter Wright memo on UCC search logic

Golden West Refining v. SunTrust Bank (9th Cir. 2008) (maximum term of letters of credit)

California state Bar Memo on Individual Debtor Names

California State Bar Hidden Liens Report

State Bar letter on UCC 3311 (re marking checks "payment in full")

Quartz of Southern California v. Mullen Bros. (Cal. App. 2007) (perfecting security interest in vehicles)

Highland Capital v. Schneider (NY 2007) (subordinated promissory notes are UCC Article 8 securities)

Alquippa Machine (W.D.Pa. 2006) (intervening creditor; new f/s filed before prior one lapsed)

DaimlerChrysler v. Labate Chrysler (N.D. Ohio 2006) (debtor can't escape security interest by selling to itself as "ordinary course").

California Producer's Lien Priority (Buchalter Nemer memo on case at last overruling In Re Loretto)

Article by John Murray (recent cases on sufficiency of debtor's name on financing statement)

Taking Security Interests in EU Jurisdictions (Field Fisher Waterhouse memo)

AmeriSource Bergen v. Dialysist West (9th Cir. 2006) (UCC 2717 setoff rights pre-empt equitable setoff)

Ewanchuk v. Mitchell (Mo. App. 2005) (delivery points)

Woolridge v. JNL Electric (Cal. App. 2002) (accord and satisfaction:  UCC rule has priority over Civil Code rule)

Cybernetic Services (9th Cir. 2001) (perfecting security interest on intellectual property)

 

Bankruptcy

 

Sheppard Mullin memo on zone of insolvency in California

Mayer Brown memo on post-petition attorneys fees (Mar. 2009)

In re Yellowstone Mountain Club (D. Mont. 2009) (lender equitably subordinated for overleverage0 Reed Smight memo)

Boucher v. Shaw (9th Cir. 2009) (individual managers can be liable for unpaid wages)

In re Calpine- Kirkland & Ellis memo (S.D.N.Y. 2007) on denial of conversion rights claim

Traveler's Casualty v. PG&E (U.S. 2007) (unsecured creditor recovers contractual legal fees)

Committee v. Whalen (S.D.N.Y. 2007) (antecedent debt)

In re Northwest Airlines (S.D.N.Y. 2007) (trading information of creditor committee members must be disclosed)

Manhattan Investment Fund v. Bear Stearns (S.D.N.Y. 2007) (payments received from Ponzi scheme avoided)

DLA Piper Rudnick Memo on Equitable Subordination of Non-Insider Claims

In Re Riddle (S.D. Fla. 2006) (no automatic dismissal; in rhyme)

Weinstein, "Applied Game Theory," Wilmott's Quantitative Fin. J., Nov. 2006

In Re Nartron (W.D. Mich. 2005) (dispute with Amway)

In Re Mirant (NewsMedia Group)  (N.D. Tex. 2004) (Section 560 works)

Meyer Medical Physician's Group (7th Cir. 2004) (exercising setoff rights)

In Re Tower Air (3rd Cir. 2004) (secured creditor recovers both the insurance proceeds and the repaired collateral)

In re John Catt (7th Cir. 2004) (Posner decision on collateral estoppel)

US v. Frontone (7th Cir. 2004) (Posner decision on discharge of erroneous IRS refund)

 

Corporate/Finance

 

Blank Rome memo on usury savings clauses

Milbank memo on right of LLC to contract away reasonableness

Ram Capital (SEC 2009) ("finders" were unregistered broker-dealers)

Hallmark Capital (SEC 2007) ("consultant and finder" raising money for small businesses must register as broker-dealer)

Bingham memo on Calif. usury laws

Webber v. U.S. Sterling Securities (Conn. App. 2007) (LLC membership not a "shield" to liability for LLC actions)

Smart Move, LLC (SEC 2007) (no tacking of Rule 144 holding period to predecessor corporation stock)

Aon v. SoGen (2nd Cir. 2006) (credit derivatives)

Reiss v. Financial Performance Corp. (NY 2001) (warrants survive stock split)

Tracking AT&T breakup

Squadron Ellenoff No Action Letter (SEC 1991) (qualified private placement not integrated with IPO)

Explanation of why emissions credits, RECs and Carbon offsets are not securities or swaps

 

Tax

 

Sutherland Memo on Tax on Gain on Sale of CO2 Allowances

Taxation on Virtual economies

Difronzo v. Commissioner (T.C. Memo 1998-41) deducting legal fees- Tax Analysts memo)

 

Contract

 

Milbank memo on NY case on email creating agreement (Mar 2011)

Milbank memo on Del. case on agreement to agree (Feb 2011)

Buchalter memo on Buyer part performance as agreement consideration

Amcan Holdings v. CIBC (NY App. 2010) (agreements to agree)

United Rentals v. Ram Holdings (Del. Ch. 2007) ("forthright negotiator" principle; DLA Piper memo)

Colavito v. New York Organ Donor Network (N.Y. 2006) (gift of a kidney)

Simmons v. Jaggers (Miss. 2005) (bratty kids)

Dow Chemical v. GE (E.D. Mi. 2005) (email satisfies statute of frauds)

Bazak v. Tarrant (S.D.N.Y. 2005) (email satisfies statute of frauds)

Article by Hart & Hacker on studio accounting practices

 

Intellectual Property

 

National Pork Board takes on canned unicorn meat

Louis Vuitton v. Dooney & Bourke (S.D.N.Y. 2004) (infringement)

Fox Networks v. Penguin (S.D.N.Y. 2003) (excellent hearing transcript)

 

Constitutional Law/Libel

 

In Re: GTE Reinsurance Co. Ltd., (R.I. 2011) (excellent contracts clause analysis)

Merced v. Kasson, et al. (5th Cir. 2009) (freedom for blood sacrifice)

Smith v. Danielczyk (Md. App. 2007) (qualified immunity for police lying in search warrant applications)

State v. Vanness (Wis. App. 2007) (6th amendment rights to public trial violated when courthouse locked up)

Overstock.com v. Gradient Analytics (Cal. App. 2007) (company libeled by hedge fund's false reports to depress stock price)

Boehner v. McDermott (D.C. App. 2007) (House ethics committee member publishing Congressman's intercepted phone call)

In re Sealing of Court Records (Fla. 2007) (Florida Judges and clerks sealing their own divorce records)

Local 1309 v. Laidlaw Transit Servs. (9th Cir. 2006) ("illogicality doctrine" of statutory interpretation)

Green v. Haskell County (E.D. Okla. 2006) (10 Commandments at the courthouse)

Rasmussen v. Naples Daily News (Fla. App. 2005) (Stadium Naples story)

Fox Networks v. Penguin (S.D.N.Y. 2003) (excellent hearing transcript)

Foreitch v. US (U.S. 2003) (bill of attainder)

Calacurcio v. City of Kent (9th Cir. 1998) (free speech)

Exceptions to the First Amendment (Congressional Research Service Report)

 

Search and Seizure

 

US v. Alvarez-Tejeda (9th Cir. 2007) (TV action tactics ok in search)

Paulino v. Maryland (Md. App. 2007) (cavity search)

People v. Arno (Cal. App. 1979) (see footnote 2 and dissent footnote 14)

 

Admissibility of dying declarations, 911 calls

 

People v. Brenn (Cal. App. 2007) (victim's declaration)

State v. Jensen (Wis, 2007) (victim's declaration)

US. v. Arnold (6th Cir. 2007) (excited utterances)

Tort

 

Santa Barbara v. Janeway (Cal. 2007) (release for future "gross" negligence unenforceable as a matter of public policy)

Funny Cide Ventures v. Miami Herald (Fla. App. 2007) (no action for jockey who over-rode horse to "compensate" for rumors)

Yates v. New York (S.D.N.Y. 2006) (man mauled by his pet tiger loses suit v. city)

Barnes v. US (6th Cir. 2006) (tripping in airport security line)

Regan v. Price (Cal. App. 2005) (judicial immunity does not extend to Judge assaulting a litigant)

Rohwer v. Federal Cartridge Co. (D. Minn. 2004) (lion hunter loses suit v. bullet maker)

 

Attorney Duties

 

Rohde v. Wolf (Cal. App. 2007) (threatening voicemail protected by anti-SLAPP statute)

Sayyed v. Wolpoff & Abramson (4th Cir. 2007) (law firm liable under federal debt collection law for mistakes in pleadings)

Virtanen v. O'Connell (Cal. App. 2006) (attorney acting as escrow holder in a transaction is really on the hook)

 

Litigation

 

Spenta Enters v. Coleman (N.D.Ill. 2008) (Katten Muchin memo- selecting as exclusive forum venue with no federal courthouse waives federal claims)

GMAC Bank v. HTFC (E.D. Pa. 2008) (highly uncivil witness conduct in deposition)

Barrie School v. Patch (Md. App. 2007) (non-breaching party to a contract with a liquidated damages clause has no duty to mitigate)

California State Parks v. San Diego (Cal. App. 2007) (don't know what it means, but my sister won it)

Judge Millian and the Second Year Law Student (Fla. Muni. 2007) (excellent spanking)

Richardson v. Richardson (Mo. 2007) (wife hires hitman to kill husband; husband can't modify alimony)

Avista v. Wassau (M.D. Fla. 2006) (Order designating location of Rule 30(b)(6) deposition)

State ex rel. Hilltop v. Cincinnati (Ohio App. 2006) (well-written takings opinion)

Factac v. King (W.D. Tex. 2006) (Order denying motion for incomprehensibility)

Tate v. Showboat Marina Casino (7th Cir. 2005) (Posner on dicta)

Pincay v. Andrews (9th Cir. 2004) missing a deadline)

CLD Construction v. San Ramon (Cal. App. 2004) (self-represented corporation)

Hyperphase v. Microsoft (W.D. Wis. 2003) (Order granting extension of time)

Gilbert v. Master Washer (Cal. App. 2001) (law firm principal recovering legal fees for his firm's work)

Santiago v. Sherwin-Williams (D. Mass. pleading) (Yiddish in pleadings)

 

Heart Balm

 

Weinstein, "Adultery, Law, and the State: A History," 38 Hastings L.J. 195 (Nov. 1986)

State Farm v. Harbert (S.D. 2007) (insurance doesn't cover defense of alienation of affections claims)

Valentine v. Fitch (Miss. App. 2007) (alienation of affections)

Schroeder v. Vineyard (Ill. App. 2007) (alienation of affection claim discharged in bankruptcy)

McCutcheon v. McCutcheon (N.C. 2006)

Osborn v. Stage (Mo. 2005) (alienation of affections)

Children's Medical Group v. Phillips (Miss. 2005) (alienation of affections)

Long v. Ostroff (Pa. 2005) (failure to state a claim using malpractice)

Sitterson v. Miller (N.C. 2005)

Osborn v. Stage (8th Cir. B.A.P. 2005) (alienation of affections dischargeable in bankruptcy)

Dowling v. Bullen (Utah 2004)

Misenheimer v. Burris (N.C. 2003)

Pine v. Price (Ohio 2002) (claim stated against runaway bride in fraud)

Cooper v. Shealy (N. C. 2001)

Thornburg v. Federal Express (Mo. 2001) (no claim against corporation for transferring wife to detriment of marriage)

Oddo v. Presser (N.C. 2001)

Hutelmyer v. Cox (N.C. 1999) (alienation of affections and criminal conversation on appeal)

Veeder v. Kennedy (N.D. 1999) (alienation of affections)

Graham v. Loomis (Me. 1999) (successfully stated a claim in malpractice)

McMahon v. Gorman (Miss. 1999)

Hutelmyer v. Cox (N.C. 1997) (alienation of affections and criminal conversation)

Falls v. Noah (N.C. 1997) (alienation of affections)

DeWitt v. Kimes (Mo. 1994) (alienation of affections)

 

Malicious Prosecution

 

Hudis v. Crawford (Cal. App. 2005) (technical win not necessarily a "favorable determination")

Zamos v. Stroud (Cal. 2004) (attorney liable for continuing a lawsuit that he discovers is meritless)

 

California Employment Law

 

Davis v. O'Melveny & Myers (9th Cir. 2007) (O'Melveny's own contract clause invalid)

Church v. Jamison (Cal. App. 2006) (Labor Code Section 2802)

Lyle v. Warner Bros. (Cal. 2006) (can she take a "joke"?)

Yanowitz v. L'Oreal (Cal. 2005) (she's not "hot" enough)

Reeves v. Hanlon (Cal. 2004) (tort of inducing at-will employee to quit)

 

Other

 

Legal Humor (Northeastern Univ. law library bibliography)

Strange Judicial Opinions

Articles by Jeremy Weinstein

 

Last updated August 26, 2008

Contact Jeremy D. Weinstein by e-mail

Selected Legal Resources

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