Worth reading: the First Circuit finally takes a stance on the fraudulent joinder test

Fraudulent joinder is a term of art referring to the doctrine that allows district courts to disregard for removal purposes the presence of a diversity-defeating defendant in a complaint. The issue comes up almost routinely in Law 75 cases where the defendant, usually the principal in Law 75 or 21 cases, seeks to remove the case filed in local court to federal court and the dealer has joined as a co-defendant a diversity-defeating Puerto Rico distributor.

Is the standard of fraudulent joinder the same as for a Rule 12(b)(6) motion to dismiss? They are similar standards to be sure but not necessarily identical. Both tests present challenges to the insubstantiality of the local law claims against the diversity-defeating defendant. In Universal Truck v. Southworth-Milton, Inc., 2014 WL 4290458 (1st Cir. Sept. 2, 2014), the First Circuit concurred with the Seventh and Ninth Circuits and held that fraudulent joinder exists where "there is no reasonable possibility that the state's highest court would find that the complaint states a claim upon which relief may be granted against the non-diverse defendant."

This sounds like the familiar Rule 12(b)(6) standard but since the Seventh Circuit's decision requires the district court to construe all issues of fact and law in the defendant's favor, and the First Circuit remained silent, I am not so sure that the standards are identical. Let's leave that for another day.

A true conflict exists between federal and local courts on the validity of forum selection clauses in Law 75 contracts

A mandatory, as opposed to a permissive, forum selection selection clause requires litigation in the chosen forum. Generally, as a matter of federal law, mandatory forum selection agreements are prima facie valid and enforceable. In Bremen v. Zapata, 407 U.S. 1 (1972), the U.S. Supreme Court held, however, that whether a forum selection clause offends a forum state's public policy can be one of a number of grounds for invalidation. Since 1972, most courts have not taken Bremen at its word and have analyzed the facts and circumstances of each case to determine enforcement.

Law 75 has a provision that a forum selection clause mandating litigation outside of Puerto Rico is null and void as against public policy. Some other dealer-friendly states like California have similar provisions. This is the same section of Law 75 that also invalidates arbitration outside of Puerto Rico in favor of the home field advantage. One would think that the Federal Arbitration Act preempts Law 75 in that respect and that enforcement of the litigation forum selection prohibition is questionable, at best. Why should arbitration receive preferential treatment from a federal policy standpoint if there are also strong federal interests at stake that weigh in favor of validating forum selection clauses? The strong public policy favoring arbitration is to enforce private agreements on their terms and that same policy of respecting liberty of contract is present when enforcing forum selection clauses.

Most federal court decisions, of which Caribbean Restaurants v Burger King Corporation, 2014 WL 2465133 (D.P.R. June 3, 2014)(Perez-Gimenez, J) is the most recent, have enforced forum selection clauses in dealer's contracts governed by Law 75. Federal courts have reasoned that important federal interests of respecting liberty of contract and freedom of commerce outweigh parochial provisions in legislation like Law 75 requiring litigation of dealer disputes in home courts. Further, federal courts have predicted that the Supreme Court of Puerto Rico would, after a series of decisions adopting federal law on the enforcement of forum selection clauses, disregard the prohibition in Law 75 and give more weight to federal policy interests.

Wait. Is it so clear? An intermediate appellate court decision in Caribe RX v. Grifols Inc., 2014 WL 2527399 (TA April 14, 2014) bucks the trend and it does, in the most simplistic and superficial of holdings: Article 3-B of Law 75 means that the clause in the distributor agreement providing for litigation in North Carolina, U.S.A. is illegal and that's dispositive. Forget that federal courts over the past decade have held to the contrary, or that Puerto Rico's highest court has been predicted to validate such a clause in a Law 75 contract. No mention was made of those federal decisions on point.

Never mind that the distribution agreement in Grifols was valid, there was negotiation between sophisticated commercial parties, consent and valid consideration. No fraud or duress etc. Never mind either that North Carolina, the chosen forum in Grifols, predictably would have been led to apply Law 75's just cause requirement from its adoption and application of the Restatement of Conflict of Laws. The forum selected in Grifols was not a rogue foreign state. The Puerto Rico dealer did not have to litigate with Grifols in Iraq or Syria. This would not be Mr.Tom Hanks poised as Captain Phillips had he been contractually required to litigate in Somalia a case against his carrier-employer for his damages resulting from his abduction and torture on Somalia's coastline. It is after all North Carolina, U.S.A.

Is Grifols a one of its kind decision? Is the message that contracts in Puerto Rico should not be respected? If so, how can that result be reconciled with the strong, if not imperative, public policy in Puerto Rico's legislation enacted to attract foreign capital investment? How is the Grifols decision conducive for Puerto Rico to establish the "business friendly" environment that the Federal Reserve Bank of New York recommended in its report as one of the steps for Puerto Rico to climb out of our economic malaise? This Grifols ruling is under the radar screen but the repercussions for business interests in Puerto Rico are huge.

In the meantime, and subject matter jurisdiction permitting, who would blame the principal for choosing to litigate PR dealer disputes in the federal forum? Forum shopping takes a new twist in PR dealer contract cases involving choice of forum provisions.

Stay tuned. Maybe the PR legislature will listen and amend Law 75 or the PR Supreme Court will pay attention to take action when the proper case comes before it.

The author represented Grifols in the case.

Courts are mindful of commercial "reality" when deciding competing summary judgment motions in Law 75 cases

In Casco Sales v. John Deere, 2014 WL 4233241 (D.P.R. Aug. 26, 2014)(Gelpi, J.), the dealer sued the principal for constructive termination, impairment, and unjustified termination of contract under Law 75 and for fraudulent inducement or "dolo" to enter into a settlement agreement. Plaintiff Casco Sales had been the exclusive dealer in Puerto Rico of the John Deere construction equipment line for decades.

Supported by an expert report, Casco claimed damages of $1.6 million for five years of net profits and loss of goodwill if the termination occurred in March, 2013. Had the base period of the termination been in 2009, damages computed under Law 75 were $4.6 million. A steep decline in the construction industry and the demand for construction equipment over that recessionary five year period explain the discrepancy in the financial results and the significantly lower measure of damages.

Casco Sales alleged that John Deere had fraudulently induced it to settle a prior Law 75 federal case in 2009 based on representations in the settlement agreement that it would cooperate to grow sales and it breached those representations. Thus, recovery for fraud (dolo) includes all damages whether or not foreseeable, including the actual damages Casco Sales would have recovered under Law 75 had the case not settled with 2009 as the base period. It is a fraud claim under the Civil Code that is related to the success of a showing of impairment under Law 75.

What triggered the second lawsuit was that in March, 2013, John Deere notified the unilateral termination of the distributor agreement. John Deere alleged that failure to pay bills on time, failure to comply with new model qualification requirements, among other alleged breaches of contractual provisions, were just cause for termination.

The dealer's termination had a tormented history of its own. As noted, in 2009, Casco Sales sued John Deere in federal court for impairment of contract under Law 75 alleging that John Deere had unilaterally altered credit or sales terms and had been arbitrary in their business dealings. In 2009, the case settled and the parties resumed their business relationship. Three years later, and coincidentally after the three-year caducity period in Law 75 expired, in December 2012, John Deere refused to honor a substantial purchase order of $264,000 placed by Casco Sales for the sale of an excavator because it claimed that the dealer was not qualified to serve that machine. Yet, two months later, John Deere would have sold through Casco Sales a similar machine to one of its national accounts in Puerto Rico, although Casco Sales had not completed the same training requirements. Casco alleged that this refusal to deal affected its cash flow and the ability to pay bills in full and was an unjustified impairment and constructive termination of contract.

The Court denied the parties' competing motions for summary judgment finding genuine and material disputes of fact and citing the First Circuit's Welch case for the proposition that just cause generally involves issues of fact precluding summary judgment. Because the Court understood that the fraud claim under the Civil Code was tied to the success of the Law 75 impairment claim it also survived summary judgment.

The decision is notable for a few other points.

First, when it is alleged that the principal refuses to honor a purchase order without just cause, Law 75 activates the rebuttable presumption of lack of just cause. Thus, the principal has the burden of proof of justifying its decision to refuse to deal and the actual subsequent termination.

Second, the Court declined to accept Casco Sales' invitation to navigate unchartered waters and hold that Law 75 recognizes a right of action for constructive termination. In dicta, the Court opined that such a claim would require a court to legislate for it does not appear to be codified in the statute. The Court construed Casco Sales' constructive termination claim as "emphasizing" the extent or degree of the impairment.

Third, and perhaps most important when it comes to surviving an MSJ for alleged lack of timely payment, the Court held "...to ignore the possibility that John Deere’s refusal to honor the purchase order (in December 2012) may have impacted Casco’s ability to timely pay its debt (before the termination in March 2013) would ignore reality. This is yet another issue that turns on fact."

Casco Sales alleged that the dealer's contract in this case did not define payments on time as an essential obligation. The Court cited First Circuit precedent under Law 75 excusing the timeliness of payments where there has been some conduct attributable to the principal that has contributed to payment delays. The Court denied the parties' "substantial" and competing MSJ's.

This author represents Casco Sales in that case.