Category: Uniform Commercial Code

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This Email Isn’t Worth the Paper It Isn’t Written On

By Richard Goldfarb on October 1, 2014 Posted in Uniform Commercial Code

You know the old expression, variously attributed to Samuel Goldwyn and others, “ a verbal contract isn’t worth the paper it’s written on.” In fact, of course, unless the statute of frauds applies, an oral contract is as good as any other contract. And an email contract, under E-SIGN, the Electronic Signatures in Global and … Continue Reading

A Cereal. A Rabbi. A Peppercorn.

By Richard Goldfarb on May 2, 2014 Posted in Uniform Commercial Code

What can you say about an internet contracting strategy that died? I’m referring, of course, to General Mills’ abortive attempt to include new terms of service on all its internet and social media products, including an agreement to arbitrate and to waive any right to a class action, that came and went so fast I … Continue Reading

Turn your Bar Bill Into a Federal Case

By Richard Goldfarb on March 25, 2013 Posted in Uniform Commercial Code

A guy walks into a bar, orders some drinks, gets the bill and pays it, leaves and sues. A federal district court has no choice but not to dismiss his claim on the pleadings, but he is unlikely to prevail in the end, because he had no reasonable expectation he was going to negotiate a reasonable price with the bar, but rather that the bar was going to charge him its stated price.… Continue Reading

It’s not boilerplate, it’s part of the contract

By Richard Goldfarb on July 17, 2012 Posted in Uniform Commercial Code

What parties might consider "boilerplate" terms often have significant meaning, and a failure to read such terms carefully can lead to bad results. A Wisconsin case about a disclaimer of consequential damages by a supplier of contaminated meat that did not effectively disclaim all such damages is a good illustration of why.… Continue Reading

Farmers Can Be Article 2 Merchants (but not necessarily always)

By Richard Goldfarb on July 3, 2012 Posted in Uniform Commercial Code

A recent Tennessee case illustrates how the merchant exception to the UCC Article 2 statute of frauds may make a farmer into a merchant. But it is important to be aware that not all farmers will be merchants, and simply selling to a merchant, without sending them a statutory-compliant notice, will not avoid the statute of frauds.… Continue Reading

Without Causation, a Plaintiff Has No Case

By Richard Goldfarb on June 6, 2012 Posted in Uniform Commercial Code

It is probably an article of faith out there among the lay populace that if you discover that the object causing your previously unexplained cough of two years’ duration is a two-inch long fragment of a plastic eating utensil that has somehow entered your lung, and if you find the logo of a well-known restaurant … Continue Reading

Unmitigated Chutzpah: The CSPI’s Merchantability Claim Against Safeway

By Richard Goldfarb on February 7, 2011 Posted in Uniform Commercial Code

Ken posted about some general issues related to the Center for Science in the Public Interest’s claims against Safeway related to the decision not to use its Club Card data to publicize recalls. Hidden among the claims, however, is a claim for breach of the warranty of merchantability that is so breathtakingly extensive it requires a … Continue Reading

Why CSPI’s Loyalty Card Suit Has No Merit and Does Not Promote Food Safety

By Kenneth Odza on February 3, 2011 Posted in Consumer Fraud Class Claims, Food Labeling, Food litigation tips, FSMA, Legislation, Legislation and Regulation, Litigation, Supermarkets, Uniform Commercial Code

Following the playbook it has followed in the past with sodium and other issues, the Center for Science in the Public Interest (CSPI) has filed yet another complaint of very questionable legal merit to promote a policy agenda. This time CSPI seeks to compel all retailers to use loyalty cards as a recall alert system. … Continue Reading

“Sweet” and “Natural”: Can One Word Have Meaning And One Not?

By Richard Goldfarb on November 23, 2010 Posted in Uniform Commercial Code

While the term "natural" has meanings so subjective that its use or misuse would be hard to enforce, the term "sweet" has a pretty obvious meaning.in most contexts. So Ben & Jerry's may have little to worry about in a lawsuit claiming its use of dutched cocoa made its "All Natural" ice cream unnatural, while someone who slaps the word "sweet" on an ordinary onion is likely to be in breach of an express warranty as well as the warranty of merchantability under the UCC.… Continue Reading

Aurora Dairy Organic Milk Case: Eighth Circuit Preempts Some Claims And Remands Others

By Richard Goldfarb on September 24, 2010 Posted in Litigation, Preemption, Uniform Commercial Code

As we reported some time ago, a class action suit was pending in the Eastern District of Missouri against Aurora Dairy, its organic certifier and certain retailers for violation of state consumer protection laws. The district court had dismissed the case on the grounds that all claims were preempted by the Organic Foods Production Act … Continue Reading

How Virgin is Your Olive Oil?

By Richard Goldfarb on July 28, 2010 Posted in Uniform Commercial Code

The Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture is finally revising its standards for olive oil, promulgated way back in 1948, to bring them in line with the International Olive Council (IOC), an organization established under United Nations auspices that represents 98% of the world’s olive oil production, nearly all in the … Continue Reading

The Ninth Circuit’s iPod Opinion and the Warranty of Merchantability

By Richard Goldfarb on December 31, 2009 Posted in Uniform Commercial Code

The warranty of merchantability is a favorite tool of plaintiff’s attorneys in food liability cases. We have blogged a good deal about it. In a case that does not involve food at all, but is sure to get a lot of publicity, the Ninth Circuit yesterday ruled that the common iPod does not breach the … Continue Reading

Ninth Circuit Decision Casts Doubt on Merchantability Claim in CSPI Suit Against Denny’s

By Richard Goldfarb on August 28, 2009 Posted in Uniform Commercial Code

The recent case against Denny's brought by the Center for Science in the Public Interest in New Jersey claims that food was inadquately labeled in violation of the implied warranty of merchantability. A recent Ninth Circuit case indicates that this claim should fail because there was no specific contract between the plaintiff and Denny's requiring that food be labeled to plaintiff's satisfaction.… Continue Reading

Facts Alleged in CSPI Sodium Suit Incongruent with Claims Asserted

By Kenneth Odza on August 18, 2009 Posted in Food litigation tips, Uniform Commercial Code

Thought to be the first putative class action against a restaurant chain related to disclosure of sodium content on menus, Center for Science in the Public Interest (CSPI) has filed what appears to be a test case against Denny’s. Best guess is the case will fail on its merits (though for CSPI, success in litigation may not be the … Continue Reading

Settlements and Implied Warranties

By Richard Goldfarb on July 26, 2009 Posted in Food litigation tips, Litigation, Uniform Commercial Code

Article 2 of the Uniform Commercial Code contains powerful tools for buyers and sellers of food and other goods. A recent case out of the Georgia Supreme Court emphasizes the critical gatekeeper function of the scope section of Article 2, Section 2-102. This section provides: Unless the context otherwise requires, this Article applies to transactions … Continue Reading

The Missing Menu Item: the Farm Products Exception

By Richard Goldfarb on May 20, 2009 Posted in Uniform Commercial Code

The Farm Products Exception to the rule that buyers in the ordinary course take free of their seller's security interests is an important provision of the Uniform Commercial Code, applicable to many transactions (except in California, where it was not enacted into the UCC).… Continue Reading