commercial law

business judgment rule

Chase Bank USA, N.A., v. McCoy

Issues

Under the pre-2009 version of Banking Regulation Z, are creditors required to give notice prior to implementing the right to increase interest rates upon cardholder default if that right was part of the initial disclosure of terms?

 

James McCoy alleges that Chase Bank (“Chase”) retroactively increased his credit card interest rate, without notice, in violation of the Truth in Lending Act’s Regulation Z. The Regulation has since been revised to require notice in this particular situation. McCoy argues that the plain language of Regulation Z mandated that he receive notice prior to an increase of his interest rate. Chase argues that the bank provided adequate notice. In support of its argument, Chase cites unofficial commentary promulgated by Federal Reserve Board, the agency which implements the Truth in Lending Act. The Supreme Court’s ruling will clarify the level of notice required prior to raising interest rates, and will provide advice on what sources may be used in interpreting complex statutes.

Questions as Framed for the Court by the Parties

When a creditor increases the periodic rate on a credit card account in response to a cardholder default, pursuant to a default rate term that was disclosed in the contract governing the account, does Regulation Z, 12 C.F.R. § 226.9(c), require the creditor to provide the cardholder with a change-in-terms notice even though the contractual terms governing the account have not changed?

Respondent James McCoy filed suit in California federal court, alleging that Petitioner Chase Bank USA, N.A. (“Chase”) violated the Truth in Lending Act. See McCoy v.

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Additional Resources

· Wex: Consumer Credit

· Office of the Comptroller of the Currency: Truth in Lending Act – Comptroller’s Handbook

· Banking Law Prof Blog, Ann Graham: Can a Credit Card Issuer Increase a Customer’s Rate without a Change-in-Terms Notice? (Nov. 22, 2011)

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CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd.

Issues

Where a charter agreement contains a “safe berth” clause, which provides that the charterer will designate a safe port as the vessel’s destination, is the safe berth clause a warranty for the ship’s safety or a promise that the charterer will exercise due diligence in selecting a safe port?

This case arises out of an incident in 2004 when the Athos I, a ship that CITGO Asphalt Refining Co. (“CARCO”) had chartered, collided with an abandoned anchor near CARCO’s designated port. This case asks the Supreme Court to decide how to interpret the charter agreement’s “safe berth” clause, under which CARCO was obligated to designate a safe destination port for the Athos I. CARCO argues that, under the safe berth clause, it was obligated only to exercise due diligence in selecting a safe port. Frescati Shipping Co. (“Frescati”), the Athos I’s owner, counters that the clause is better interpreted as a warranty of safety that gives rise to strict liability. The outcome of this case will determine the contours of a charterer’s obligations under safe berth clauses and the degree to which industry actors can efficiently bargain to allocate risks before accidents occur.

Questions as Framed for the Court by the Parties

Whether under federal maritime law a safe berth clause in a voyage charter contract is a guarantee of a ship’s safety, as the U.S. Courts of Appeals for the 2nd and 3rd Circuits have held, or a duty of due diligence, as the U.S. Court of Appeals for the 5th Circuit has held.

CITGO Asphalt Refining Company (“CARCO”) chartered a single-hulled oil tanker, the M/T Athos I, from an intermediary of Frescati Shipping Co., Ltd. and Tsakos Shipping & Trading, S.A. (“Frescati”) to deliver crude oil from Venezuela to CARCO’s berth in New Jersey. Frescati Shipping Co., Ltd. v.

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OBB Personenverkehr AG v. Sachs

Issues

When is an entity an “agent” of a “foreign state” for purposes of the Foreign Sovereign Immunities Act; and, what degree of commercial activity within the United States is sufficient to trigger an exception to immunity for personal injury liability under that Act?

 

The Foreign Sovereign Immunities Act (“FSIA”) limits the ability of U.S. citizens to bring causes of action against foreign states and their agents in U.S. courts. See Brief for Petitioner, OBB Personenverkehr AG at 25. But the FSIA contains a commercial activity exception, which allows a U.S. court to hear suits involving a foreign state when the action is “based upon” the state’s commercial activity in the United States. See id. In this case, the Supreme Court will consider how to define when an entity is an agent of a foreign state, and the scope of the commercial activity exception’s “based upon” requirement. See id. at i. OBB Personenverkehr AG (“OBB”), a state-run Austrian passenger railway, argues that foreign states are “presumptively immune” from U.S. jurisdiction under the FSIA unless an exception applies. See id. at 25 (internal quotation omitted). OBB contends that injured Americans like Carol Sachs cannot satisfy “the based upon” requirement for claims arising from harm incurred on foreign soil. See id. at 28. Sachs argues that a sale of a ticket in the United States constitutes commercial activity and thus satisfies that requirement. See Brief for Respondent, Carol P. Sachs at 23–24. In the alternative, OBB argues that the FSIA clearly defines who can be an “agent” of the state, and that the Ninth Circuit erred in relying on common-law agency principles to find that a third-party’s ticket seller was an agent of OBB. See Brief for Petitioner at 43–46. Sachs counters that common-law agency principles should apply notwithstanding the language of the FSIA. See Brief for Respondent at 20–21. This case may affect the balance of international litigation and may result in a shift from the restrictive theory of sovereign immunity. See Brief of Amici Curiae Governments of the Kingdom of the Netherlands and the Swiss Confederation, in Support of Petitioner at 26, 34. This case may also result in changes to how agents of a foreign state engage in business with the United States over the Internet. See Brief of NML Capital, LTD, in Support of Respondent at 16; Brief of Amici Curiae International Rail Transport Committee, in Support of Petitioner at 14.

Questions as Framed for the Court by the Parties

  1. For purposes of determining when an entity is an “agent” of a “foreign state” under the first clause of the commercial activity exception of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), does the express definition of “agency” in the FSIA, the factors set forth in First National City Bank v. Banco Para el Comercio Exterior de Cuba, or common law principles of agency, control?
  2. Under the first clause of the commercial activity exception of the FSIA, 28 U.S.C. § 1605(a)(2), is a tort claim for personal injuries suffered in connection with travel outside of the United States “based upon” the allegedly tortious conduct occurring outside of the United States or the preceding sale of the ticket in the United States for the travel entirely outside the United States?

In March 2007, Carol Sachs purchased a four-day Eurail pass for travel in Austria and the Czech Republic from Rail Pass Experts (“RPE”), a Massachusetts company. See Sachs v. Republic of Austria, 737 F.3d 584, 587 (9th Cir.

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