Notice of Appeal

Upcoming Events of Interest

Upcoming events you may be interested in:

September 27 at 12:30 at Georgia State's School of Law: Kermit Roosevelt comes to talk about his new book, the Myth of Judicial Activism, and to sign copies of his books. Lunch will be provided. Sponsored by the Georgia Lawyer Chapter and the GSU Student Chapter of the American Constitution Society. For more information email Georgia@acslaw.org. (Look for another ACS event in October featuring speakers on judicial independence as well.)

Friday October 6, at the Georgia Aquarium: Georgia Court of Appeals gala Centennial Celebration. Deadline to register is September 15. For more information about the Court's Centennial events, including links to the online registration for the dinner, see the court's website.

Thursday-Friday, October 26-27, at the State Bar headquarters: The Eleventh Circuit Appellate Practice Institute, featuring Justice Clarence Thomas as the keynote speaker. 9.5 CLE hours of expert advice and instruction on appellate practice in the 11th Circuit.  See iclega.org for online registration information.

International buyers, beware!

Or rather, be aware that the course of dealing between the parties trumps customary usage in the interpretation of contracts under the United Nations Convention on Contracts for the International Sale of Goods, according to the 11th Circuit in Treibacher Industrie, A.G. v. Allegheny Technologies, Inc. et al, No. 05-13005 (Sept. 12, 2006).

Of course, this decision makes sense in the context of the facts of the case: the parties had been contracting with each other over the course of seven years for the purchase of a fixed amount of materials on a “consignment” basis, which the parties understood to mean that the buyer was obligated to buy the entire amount of materials, but would only pay for them as they were used. In fact, at one point in their course of dealing, the buyer asked it if could return some of the unused materials, and the seller informed the buyer it could not, as it was obligated to purchase the entire amount, and the buyer acquiesced and purchased the contracted-for amount.

Then, after seven years of contracting on this basis, the buyer had an epiphany. The “consignment” term in the contract did not mean it was obligated to buy the total amount contracted for; the customary usage of the term “consignment” was that the buyer would only be obligated to pay for as much as it needed, and this customary usage trumped any implicit usage established by the parties’ course of dealing, whatever that might have been. (Query why it would make sense to contract for a fixed amount of materials, if there were no obligation to buy that amount....)  No doubt this epiphany was inspired by the existence of a seller who was willing to sell – and in fact did sell – the materials to the buyer at a lower price. Considering the damages, after mitigation, were over $5 million, it was apparently worth a shot.

Although the course of dealing strongly suggests that the buyer was simply being opportunistic in its interpretation of the contract, the 11th Circuit first addressed the contract interpretation issue under the CISG, which is in essence an international UCC, rather than reviewing the course of dealing first. The details of the analysis are in the opinion; what is interesting about the case is that there apparently is no caselaw on this issue, or at least, none was cited by the Court. The opinion is a pure statutory interpretation, apparently in a case of first impression, based on the text of the Convention and the relationship between three different sections of it. Nor is the interpretation chosen by the Court facially obvious – it makes sense after walking through the analysis, but it seems odd that there are not other cases interpreting this portion of the CISG. Perhaps the 11th Circuit decided to correct a dearth of published caselaw on the issue with this case?

Returning from Vacation

As the courts return from vacation, so have I, and in the next few days I aim to catch up on some 11th Circuit cases of interest.

After perusing the published opinions of the 11th Circuit since the blog started, I have found we tend to eliminate a number of categories of cases which are either in too specialized an area to cover here, or are too numerous in this circuit to warrant routine coverage (at least in a blog of limited scope such as this one). So, for instance, immigration and maritime cases, which often appear in 11th Circuit caselaw, are difficult to cover because they tend to be specialized. Bankruptcy qua bankruptcy is often in that category, although there are often more general commercial litigation issues embedded in bankruptcy cases that we might cover; likewise with administrative law cases.

Run-of-the-mill criminal sentencing cases are far too numerous to cover; many habeas cases also are in that category, particularly if they deal, for instance, with the AEDPA statute of limitations, an issue with zillions of permutations; but certain habeas cases may contain particularly interesting or important issues.

Finally, as this blog focuses on Georgia state law, to the extent a federal decision is a diversity case premised on another state's law, and is fairly limited to that state's law as applied to the facts of the case, we will likely not cover it.

What will we cover from the 11th Circuit? Issues of federal law and procedure, and particularly constitutional law; cases involving commercial and complex litigation, including class actions, securities, etc.; white-collar criminal or related civil cases, e.g. RICO, false claims act, and so forth; civil rights cases and criminal, habeas and prisoner cases that have systemic or constitutional implications; employment cases; and issues of Georgia law, as interpreted by the 11th Circuit.

Plus, we still anticipate covering Georgia state law, including live blogging of oral arguments that are broadcast by the Georgia courts, and we also hope to pass along announcements of judicially-relevant events. Stay tuned for more...