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Personal Jurisdiction over Foreign Manufacturers

State v LG Electronics, Wash app, div 1, January 12, 2015:150112 State-v-LG-Electronics There has been ongoing debate in the courts over how much contact foreign manufacturers must have with a state for the state court to assert personal jurisdiction over foreign manufacturers and make the foreign manufactures defend in the state’s courts. The state’s power is constrained by the due process clause of the Fourteenth Amendment. The foundational case is International Shoe Co. v. Washington, 326 U.S. 310 (1945), in which the United States Supreme Court] held that a state may authorize its courts to exercise personal jurisdiction over an out-at-state defendant if the defendant has “certain minimum contacts with [the state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” The courts have subsequently developed two concepts of personal jurisdiction: (1) General Jurisdiction and (2) Specific Jurisdiction. General jurisdiction “permits the exercise of personal jurisdiction over a nonresident defendant where the defendant’s ‘continuous corporate operations within a state (are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.'” Daimler AG v Bauman, 134 S. Ct. at 754-55 (2014). Specific jurisdiction, which since International Shoe “has become the centerpiece of modern jurisdictional theory,” requires that suit arise out of or relate to the defendant’s contacts with the forum. Daimler, 134 S. ct. at 754-55. Specific Jurisdiction requires proof of three elements (1) minimum contacts; (2) action “arises” from minimum contacts; and (3) asserting jurisdiction does not offend traditional notions of fair play and substantial justice. In State v LG...

Why Organize Early?

Although many company founders are reluctant to take the plunge into creating a corporate entity, often putting this step off for as long as possible, there are some good reasons to consider forming as soon as possible. Holding Period Stock Value The IRS will look at the time between forming and value given for stock at that time, and the company’s value at any financing or liquidity event. Hypothetically, if founders gave $.01 of value for their shares at formation, and they receive a funding round that values the company at $.50/share a week later, they need to be able to convince the IRS in an audit that they created enough value in the company in that one week to warrant the 50x increase in the value of the company. In a situation like this, your company is more than likely to arouse the suspicion that you sold yourselves shares at below market value. The General Partnership Many states, including Washington, have ratified some version of the Uniform Partnership Act (UPA). Washington’s is codified as chapter 25.05 of the Revised Code of Washington. Although the preferred form of entity for most startups is a C corporation, a founder should also be attentive to the provisions of the UPA or its equivalent in his or her state. The reason for this is that many of these acts contain provisions similar to the following from RCW 25.05.055:   (1) Except as otherwise provided in subsection (2) of this section, the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not...

Whistleblower Protection: Dodd-Frank and SOX

by John Jacob Tollefsen1The author practices law in Oregon, Washington, California, Texas, D.C., and New York. He has been lead counsel on several SOx § 806 cases including Tides v. The Boeing Co., 644 F.3d 809 (C.A.9, Wash. 2011), cert. den. 132 S.Ct. 518 (2011) and Reid v The Boeing Company, 2009-SOX-27 (ARB Mar. 30, 2012).  Overview of Whistle Blower Protection under Dodd-Frank and SOX including the SEC Bounty Program The Sarbanes Oxley Act of 2002 (“SOx”) § 8063SOx § 806 is codified as 18 U.S.C. § 1514A(a)(1). was designed to protect certain employees who reasonably believe they are reporting a violation of a law, rules, or regulation listed in § 806. Due to drafting issues and the hostility of courts and administrative judges, few whistleblowers prevailed. The Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 add additional protections designed to increase the whistleblowers chances of success. This article provides a brief overview of federal whistleblower protection under Sox and Dodd-Frank including the Securities and Exchange Commission bounty program.2There are numerous other whistleblowing protection provisions in federal law that may be helpful in a particular case including aircraft safety and environmental issues that are not covered by this article. Prepare to have your career ruined As a practical matter, whistleblowing protection has not been favored by judges. This is to be expected. For many people, a “whistleblower” is a “snitch”.4The English language is rife with pejorative terms for whistleblower like informer, fink, stoolpigeon, stoolie, sneak, blabbermouth, tattler, tattletale, squealer, mole, betrayer, rat, and rat fink. Even lawyers fight rules (like ABA proposed ethical rules) making reporting of...

Foreclosure Not Outrageous

Lyons v U.S. Bank National Association (WA SC October 30, 2014) Decision: 141030-Lyons-v-US-Bank Lyons defaulted on the note secured by a trust deed on her home. In October 2011, Lyons filed bankruptcy, and in January 2012 she applied for a loan modification with Wells Fargo. On March 30, 2012, while Lyons was waiting for a response regarding her application for a modification, she received a notice of trustee’s sale from NWTS informing her that her property was scheduled to be sold  on July 6, 2012. On April 5,2012, Wells Fargo told Lyons’ attorney that the in-house modification had been approved. On April 19,2012, Lyons received the letter confirming the modification. The terms required her to pay $10,000 by May 1,2012. Wells Fargo informed Lyons they would discontinue the sale upon receipt of this payment. She paid this amount to Wells Fargo as required. However, on March 29, 2012, Wells Fargo had sold Lyons’ loan to U.S. Bank National Association as trustee for Stanwich Mortgage Loan Trust Series 2012-3 with Carrington Mortgage Services LLC as the new servicer of the loan. This was to become effective on May 1,2012. NWTS received notice of the sale and service release on April 12,2012. Lyons received notice of this sale on April 26, 2012. On April 26, 2012, Lyons’ attorney spoke with a representative of NWTS to inform it that Wells Fargo no longer had any beneficial interest in the loan after the sale, that Carrington was the new servicer of the loan, and that Lyons had received a loan modification so she was no longer in default. On June 11, 2012, Lyons’...

Principles of contract interpretation

Washington State Law – Principles of Contract Interpretation Viking Bank v. Firgrove Commons 3, LLC, 2014 Wash. App. LEXIS 2277 (Division II, Wash. Ct. App.Sept. 16, 2014) Decision: 140916-II-Viking-Bank-v-Firgrove The court refused to imply a promise to pay management fees into the triple net provision of a commercial lease. These facts are unusual because standard commercial leases specifically list management fees in the description of costs passed on to tenants. This case is useful for the following statement of the principles of contract interpretation applicable to Washington State: “The primary objective in contract interpretation is to ascertain the mutual intent of the parties at the time they executed the contract. Int’l Marine Underwriters v. ABCD Marine, LLC, 179 Wn.2d 274, 282, 313 P.3d 395 (2013). Washington follows the “objective manifestation theory” of contract interpretation, under which the focus is on the reasonable meaning of the contract language to determine the parties’ intent. Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 503, 115 P.3d 262 (2005). “We generally give words in a contract their ordinary, usual, and popular meaning unless the entirety of the agreement clearly demonstrates a contrary intent.” Hearst, 154 Wn.2d at 504. And we view the contract as a whole, interpreting particular language in the context of other contract provisions. See Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 669-70, 15 P.3d 115 (2000). “To assist in determining the meaning of contract language, we also apply the “context rule” adopted in Berg, 115 Wn.2d at 666-69. This rule allows examination of the context surrounding a contract’s execution, including the consideration of extrinsic evidence...

No notice of damages sought required in Washington pleadings

Kathryn Learner Family Trust v. Wilson, 2014 Wash. App. LEXIS 2196 (Wash. Ct. App., Div. 3, Sept. 4, 2014) Decision: 140904-Learner-v-Wilson It has long been the common law rule that a plaintiff must give notice to the defendant of the type of damages it is seeking. Prior to the advent of “notice pleading” the defendant had the right to notice of the amount of damages. The rule developed that “general damages” did not need pled. General damages are those which are the “natural and necessary result of the wrongful act or omission asserted as the basis for liability. They are presumed by or implied in law to have resulted from the injury.”1Jensen v. Torr, 44 Wn. App. 207, 214, 721 P.2d 992 (1986). Attorney fees were considered “costs” but the meaning of “costs” changed over time through statutory construction and judicial decision as American courts moved from their British roots. Under federal law, attorney fees arising under a contract2If the attorney fees are from another source like a statute or are part of the cause of action, the rule probably is not applicable are special damages that must be pled under Federal Rule of Civil Procedure 9(g).3United Indus., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, 764 (5th Cir. 1996) (citing Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d 840, 843 (3rd Cir. 1973) This court held that these rules have been altered in Washington by Civil Rule 54(c) which provides the except “as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose...

Member loses right to file derivative action against LLC by filing bankruptcy petition.

Northwest Wholesale, Inc. v. Pac Organic Fruit, LLC,2014 Wash. App. LEXIS 2197 (Wash. Ct. App.Sept. 4, 2014) Case decision: 140904-Northwest-v-Pac-Organic This case provides an example of the application of Washington limited liability company law to derivative actions when a member files a petition in bankruptcy. One party wanted to bring a derivative action after filing a Chapter 11 petition. This is not allowed under Washington Law. RCW 25.15.370 reads: A member may bring an action in the superior courts in the right of a limited liability company to recover a judgment in its favor if managers or members with authority to do so have refused to bring the action or if an effort to cause those managers or members to bring the action is not likely to succeed.  39 RCW 25.15.375 provides:  In a derivative action, the plaintiff must be a member at the time of bringing the action and: (1) At the time of the transaction of which the plaintiff complains; or (2) The plaintiff’s status as a member had devolved upon him or her by operation of law or pursuant to the terms of a limited liability company agreement from a person who was a member at the time of the transaction. Under RCW 25.15.130(1)(d)(ii), a member of a limited liability company loses his or her membership upon the filing of bankruptcy. The statute provides:  (1) A person ceases to be a member of a limited liability company, and the person or its successor in interest attains the status of an assignee as set forth in RCW 25.15.250(2), upon the occurrence of one or more of the...

90% Means 90% – Modifying Condominium Declaration

Filmore LLLP v. Unit Owners Ass’n of Centre Pointe Condo., 2014 Wash. App. LEXIS 2181 (Wash. Ct. App. Sept. 2, 2014) Decision: 140902-Filmore-v-Unit-Owners The condominium’s declaration required more than 67% of the votes for amendments. The Washington condominium statute requires 90% majority to change the “use” of condominiums. The legal question was whether changing the leasing rights of condominium owners was a change in use. RCW 64.34.264, entitled “Amendment of declaration,” provides in relevant part: (1) Except in cases of amendments that may be executed by a declarant under RCW 64.34.232(6) or 64.34.236; the association under RCW 64.34.060, 64.34.220(5),64.34.228(3),64.34.244(1),64.34.248, or 64.34.268(8); or certain unit owners under RCW 64.34.228(2), 64.34.244(1), 64.34.248(2), or 64.34.268(2), and except as limited by subsection (4) of this section, the declaration, including the survey maps and plans, may be amended only by vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated, or any larger percentage the declaration specifies: PROVIDED, That the declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use. (4) Except to the extent expressly permitted or required by other provisions of this chapter, no amendment may create or increase special declarant rights, increase the number of units. change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted, in the absence of the vote or agreement of the owner of each unit particularly affected and the owners of units to which at least ninety percent of the votes in the association are...

Debt Purchasers Need Collection License

Gray v Suttell & Associates (Supreme Court WA, Aug 28, 2014)   Copy of the Opinion: 140828 WSC Gray v Suttell Over a thousand collection lawsuits were filed in the name of the purchaser of the debt. The Supreme Court held that was unlawful if the buyer did not have a debt collection license from Washington State. The court included the following industry analysis in its opinion. Since the enactment of the WCAA, the debt collection industry has grown and changed to keep up with the increasing amount of consumer delinquent debt. TheFederal Trade Commission noted that ‘”[t]he most significant change in the debt collection business in recent years has been the advent and growth of debt buying.”‘FED. TRADE COMM’N, THE STRUCTURE AND PRACTICES OF THE DEBT BUYING INDUSTRY (2013) (alteration in original) (quoting FED. TRADE COMM’N, COLLECTING CONSUMER DEBTS: THE CHALLENGE OF CHANGE 13 n.1 (2009)). Although a relatively new industry, by 2007, the debt collection industry employed over 200,000 people and reported annual revenue of $58 billion from consumer collections. RICK JURGENS & ROBERT J. HOBBS, NAT’L CONSUMER LAW CTR., THE DEBT MACHINE, HOW THE COLLECTION INDUSTRY HOUNDS CONSUMERS AND OVERWHELMS COURTS 5 (201 0). A “debt buyer” is an entity or individual that purchases delinquent or charged-off debts from a creditor, usually for a fraction of the face value of the debt, and then takes some action to collect on those claims. H.B. REP. on SUBSTITUTE H.B. 1822, at 2, 63d Leg., Reg. Sess. (Wash. 2013). There is growing concern that collection practices employed by debt buyers are harmful to consumers. A legislative staff summary of public...

False Claims Act Whistleblower

The False Claims Act provides that ¨Any employee who is discharged; or demoted; or suspended; or threatened; or harassed; or in any manner discriminated against is entitled to bring an action for reinstatement with same seniority; 2 times back pay with interest; special damages; emotional distress; attorneys’ fees and costs. No punitive damages are available. An “employee” includes: temporary worker; and demoted worker; and discharged worker. An independent contractor is not an employee. A false claims act whistleblower should expect harassment in the form of counterclaims filed in the retaliation action; industry blackballing; unprovable but real retaliation; reassignment for ostensibly unrelated reasons; other non-compensatable harassment; possible losing the case; and paying attorney fees and costs if the retaliation case is deemed frivolous. More on False Claims Act Whistleblower Protection Washington State False Claims Act Qui Tam (False Claims Act) procedure False Claims Act...