There is a concept in the law called puffery and it’s great. I cannot prove that to you that it’s great, however, because a legal concept’s greatness or lack of greatness is something entirely personal. And that is an excellent introduction to the concept. The case that brings up “puffery” is Viggiano v. Hansen Natural … Continue Reading
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
The Food Security Act of 1995 is part of a matryoshka of statutes. In the center is the general rule of 9-320(a) of the UCC, that a buyer in the ordinary course of business takes free of a security interest created by its seller. The next doll is the Farm Products Exception, which I wrote about here: except, … Continue Reading
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
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
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
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
We’re honored that LexisNexis has included this blog among its initial nominees for "Top 25 Blogs 2010, Business Law Communities." Please consider submitting to LexisNexis as soon as possible your comments on this blog and whether you think it should be included among the Top 25. Go to this link and insert your comments on the … Continue Reading
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 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
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
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 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
Article 2 of the Uniform Commercial Code ("UCC") is the source for determining the contract rights between parties, often including completely innocent parties, involved in a product recall. The terms of the parties' contract, often subject to the so-called "battle of the forms" will determine their relative rights. The timing of the recall, whether it occurs before acceptance, during the time when a revocation of acceptance can still be possible, or when the only remaining claims are for breach of warranty, will also have a critical effect on the parties' relative rights.… Continue Reading
