Volvo Construction Equipment North America, Inc. v. CLM Equipment Co.

shоuld remand, district On EQUIP CONSTRUCTION VOLVO documents these whether reconsider INC., AMERICA, MENT NORTH sta- First Amendment accorded should Trade corporation; Volvo Delaware for reasons state specifically tus and Aktiebolaget, a Holding Swedish mark of Because it reaches. decision whatever Champion Machin Road corporation; case, of regardless of this posture corporation, Limited, ery a Canadian First Amend- concerning conclusion Plaintiffs-Appellees, consid- also court should ment, district of right law is a common there er whether and whether documents to these access INC., COMPANY, EQUIPMENT CLM reasons sufficient presented has VDSP Equip corporation; Future Louisiana explained As we that access. restrict corpora Inc., Company, a Texas ment are I, that determinations Stone these are Company, an Machinery tion, Clark from instance in the first made “properly corporation, Defendants- Arkansas district vantage point superior Appellants, meaningful for necessary and are court” F.2d at 182.11 review. appellate Corpora Equipment

AIS Construction IV Michigan corporation; Nueces tion, a Power Center, Inc., Nueces Farm d/b/a affirm we foregoing, on the Based corporation, a Delaware Equipment, unsealing Exhibits orders court’s district Defendants. T, O, R, and we M, N, H, I, F, G, E, No. 03-1108. to the district court case remand Exhibits of whether consideration further Appeals, Court States United P, be unsealed. C, Q, and S should Fourth Circuit. RE- PART AND IN AFFIRMED 24, 2003. Sept. Argued: IN PART MANDED 8, 2004. Oct. Decided: subject that only documents that ... is no there Although contends VDSP scrutiny are those Amendment First right access to Amendment First issue, J.A. 399- pleadings”); did not take attached been have documents (VDSP See, concerning First e.g., (VDSP's argument J.A. 366 position below. First agree compelling stating that "I do statement counsel in the Amendment scrutiny applies to documents reasons). Amendment agree "I judicial records” filed as that are

OPINION KING, Judge: Circuit large earth-mov Three retail dealers “Dealers”)1 (the appeal graders motor ing in favor of court’s the district decision (collectively, “Volv manufacturers graders’ o”)2 dispute. Volvo in this contract Holding Aktiebolaget CLM Trademark Inc., Co., Supp.2d F. Equip. (the (W.D.N.C.2002) “Opinion”). The ju the court lacked maintain that Dealers declaratory pro judgment in the risdiction no ac because ceeding initiated Volvo controversy tual existed. Dealers Korzenowski, Dady E. Scott ARGUED: pos if the court assert also even Minnesota, P.A., Garner, Minneapolis, & its discretion jurisdiction, abused sessed Lockerby, J. Michael Appellants. for jurisdiction proceed in that by exercising Richmond, Williams, Virginia, & Hunton contend that the ing. Finally, the Dealers J. Michael ON BRIEF: Appellees. for erroneously in favor of Volvo ruled Garner, Gardner, Dady & K. Dady, Ronald dispute, in that Vol the merits of this on Minnesota; B. Robert P.A., Minneapolis, equip with supply them vo’s refusal Anderson, Sands, & Delano, Jr., Marks contractu of its ment constituted breach L. Richmond, Edward Miller, Virginia; contravened several obligations al P.L.L.C., Jr., Bleynat, Ferikes & Bleynat, explained reasons statutes. For the state Carolina, Asheville, Appellants. North below, part, vacate part, affirm in we Williams, Isbell, & Kimberley A. Hunton and remand. III, Richmond, Long, E. Virginia; Nash Charlotte, Williams, North Car- Hunton &

olina, Appellees. I. TRAXLER, WIDENER, and Before A.

KING, Judges. Circuit in by Volvo being purchased to Prior part, in and in part, vacated Affirmed Limited Machinery Road Champion Judge by published opinion. remanded corporation (“Champion”) was a Canadian Judge in which opinion, wrote the KING large in manufacture specializing Judge joined, WIDENER TRAXLER (the “Cham- graders earth-moving motor part and concurring opinion an wrote Graders”).3 The contract dis- Motor pion dissenting part. Aktiebolaget, a Holding Swedish Company, Trademark Equipment CLM Dealers are 1. The Machinery Champion Road corporation, and Inc., Machin- corporation, Clark a Louisiana Limited, corporation. a Canadian corporation, and ery Company, an Arkansas Inc., Company, a Texas Equipment Future judg- reviewing award of we are 3.Because corporation. recitation pleadings, our factual ment on Volvo, light most favorable presented in the to as appellees, referred three The Dealers). (i.e., George party nonmoving Equipment North Construction are Volvo Concrete, Inc. v. Ready-Mixed Pine Inc., Frey America, C. corporation, Volvo a Delaware pute underlying litigation days this receipt emanates after receipt by deemed Dealer of such from notice. purchase Champion Volvo’s subsequent and Volvo’s decision to cease CLM, Clark, Agreements and FEC Dealer supplying Champion Motor Graders to § 24.4. Although the Without Cause Provi- Equipment Company, important Dealers —CLM sion is appeal, this several (“CLM”), provisions other Machinery Company Agreements Inc. the Dealer Clark significant. are also They (“Clark”), include: Equipment Compa- and Future (cid:127) (“FEC”) (the merger ny, integration Inc. That clause resale. deci- —for Clause”), “Integration providing that a sion resulted what the Dealers contend Agreement Dealer contains the entire was unlawful Volvo’s termination of their respecting a pur- Dealer’s (the agreements Champion dealer with chase and distribution of Champion Agreements”).4 “Dealer According to the products and parts; CLM and Clark Dealers, them, Champion promised dur- 32.1, Agreements § Dealer FEC Dealer ing a 1970s effort to increase its dealer- Agreement 33.1; § ships country, that it would “con- (cid:127) a clause prohibiting oral modification relationship tinue a business with a dealer (the Clause”), “Modification providing having unless the dealer was financial dif- modification of a Agree- Dealer performing poorly.” ficulties or was ment must be in writing signed by allege Dealers that Champion promised to duly authorized Champion; officer of Champion terminate a “only dealer after CLM and Agreements Clark Dealer giving first the dealer notice of its defi- 32.2, § Agreement 33.2; FEC Dealer ciencies and an opportunity to correct (cid:127) (the a market provision withdrawal those deficiencies.” The Dealers maintain Provision”), “Market Withdrawal pursu- Champion representatives also made ant Champion which reserves the contemporaneous oral representations right product discontinue its lines that the Dealers could continue as Cham- Dealers; CLM, without notice to the pion long they dealers so as adequately Clark, and FEC Dealer performed. dispute This contract relates 27; primarily to the interpretation appli- (cid:127) (the a best provision efforts “Best Ef- cation specific of a subsection of the Ter- Provision”), forts under which the Deal- mination section of the Dealer Agree- agree ers to use their best efforts to sell subsection, ments. That the “Without Champion products; CLM and Clark Provision,” Cause authorizes termination Agreements § FEC Dealer cause, of a dealership without providing 7;§ Agreement as follows: (cid:127) (the a provision choice-of-law “Choice- Champion may terminate agree- Provision”), that, of-Law providing pur- ment at any time without cause writ- suant to CLM’s and Clark’s Dealer ten notice of termination delivered to Agreements, obligations par- of the Distributor], [Dealer or such termination ties are to be determined under South to be effective not sixty law; less than Carolina CLM and Clark Dealer 551, Hill Corp., Concrete Mix 4. Agreements The three Dealer at issue are (2d Cir.1977); Wright entitled Agreement[s]” 5A Charles Alan & "Distributor Ar- Sales (CLM Clark) Miller, Agree- and and thur R. "Grader Dealer Federal Practice and Procedure (FEC). ment” (2d 1990). We refer to § each as a Dealer ed. Agreement. them with longer supply no that, it would 29; to that pursuant and Agreements January On Champion Motor Graders. the obli- Agreement, Dealer FEC’s 19, 2000, notice that its FEC received governed to be parties of the are gations terminated on would be Ontario; Agreement Dealer Dealer FEC law of by the 10, 2000, 19, 2000. On October 29; March and Agreement their and CLM that notified Clark Volvo (cid:127) provision laws local conformity with a be terminated Agreements Dealer would Provision”), (the under “Local Law 9, of these Upon receipt January on of the obligations and rights which notices, the Dealers advised termination laws subject applicable to all all efforts to they litigate would Volvo jurisdic- having entities government of In Agreements. the Dealer terminate that, if them, providing and over tion advice receipt after of such January alters relation- substantially law local Dealers, manufac- ceased Volvo from a par- Agreement, Dealer ships under a graders. motor turing Champion brand may request modification ty Clark, CLM, and FEC Agreement; § 30. B. of purchase its consummating After filed its de- Volvo On October it could decided Champion, Volvo in the claratory judgment complaint West- manu- with such effectively more compete (the “North of North Carolina ern District Deere, Case, John Caterpillar,

facturers as defen- naming as Litigation”), Carolina graders motor if it Komatsu marketed and CLM, FEC, Construction AIS dants Volvo) (i.e., and name single brand under (“AIS”), cer- Corporation Equipment (i.e., that network through single dealer dealers, including Champion tain other Volvo).5 result, implemented As a Volvo (“NFC”). Center, By Inc. Farm Nueces and “ra- products its to “Volvoize” plan action, a declaration sought Volvo this civil char- Volvo its dealer network. tionalize” Agreements, to the Dealer pursuant as a program the “Volvoization” acterized supplying obliged to continue it was not rebranding reengineering and process Champion Champion Motor Graders under for sale Champion Motor Graders 27, 2000, the de- On November dealers. character- Volvo trademark. VOLVO the North sought dismissal fendants as plan Rationalization” ized its “Dealer subject-mat- for lack of Litigation Carolina Champion integration Volvo Volvo response, jurisdiction. ter networks. dealer com- declaratory judgment its amended alia, and, named Clark as plaint inter to Vol- responded the Dealers 19, 2001, March On additional defendant. contin- demanding that Volvo plan vo’s ju- addressed the district court before graders motor them with provide ue issue, sought leave Volvo risdictional the former Volvo manufactured time, for a second complaint amend these de- factory. Despite Champion the North from defendant NFC by dropping mands, not selected the Dealers were diversity asserting Litigation motor Carolina of such as authorized dealers Volvo court.6 in Carolina jurisdiction the North the Dealers notified and Volvo graders, corpora- are Delaware Volvo, 6. Both Volvo NFC competing manufac- According to 5. defendant, NFC, de- would have aas tions. line of construc- typically market a full turers Litiga- Carolina stroyed diversity North in the offer "one- dealers equipment, and their tion NFC no § With 28 U.S.C. tion. See stop shopping" products. for such Carolina Liti- the North longer a defendant in 20, 2001, the voluntarily On March Dealers filed a leave to dismiss NFC as a de- fendant, in separate against civil action Volvo and authorized Volvo to file its (the (the Second Complaint of Arkansas “Arkan- Amended “Com- Eastern District Trademark, plaint”). Volvo No. Litigation”). sas The Dealers then moved (W.D.N.C. 2001).7 27, dismiss, Aug. 1:00CV238 the North court to Carolina ab- from, stay stain or the North Carolina Upon being advised of the North Car- Litigation, deference to the Arkansas Motion, olina court’s ruling on the Dealers’ (the Motion”). Litigation “Dealers’ On court, 30, 2001, August Arkansas on 9, 2001, April a magistrate judge in North transferred Litigation the Arkansas to the Carolina recommended to the district Western District of North Carolina. court that the Dealers’ Motion be denied Thereafter, 14, September on and that Volvo be authorized to file its Dealers filed their Joint Answer and Coun- Complaint. Second Amended Volvo terclaim in the North Litigation. Carolina Holding Trademark Aktiebolaget v. AIS Their Counterclaim mirrored the claims Equip. Corp., Const. No. 1:00CV238 complaint asserted their against Volvo (W.D.N.C. 2002). April Litigation.8 the Arkansas January On 9, 2002, consented to consolida- 20, 2001, On April Volvo moved the Ar- tion of Litigation the Arkansas with the dismiss, from, court to kansas abstain North Litigation Carolina in the North stay the Arkansas Litigation, deference Trademark, Carolina court. Volvo No. to the Litigation. North Carolina On June L00CV238, L01CV122, No. 2002 WL 21, 2001, granted the Arkansas court (W.D.N.C. 2002). Jan. motion, entering stay of the Arkansas Litigation pending resolution of the Deal- 13, 2002, On December the district ers’ Motion in North Carolina. On August Opinion filed the from which this 27, 2001, court, the North relying Carolina appeal Opinion granted arises. The Volvo on magistrate judge’s recommendation, partial judgment on the pleadings, dis Motion, denied the granted Dealers’ Volvo missed counterclaims the Dealers’ in the raised, gation, (2) diversity Farm, no seq.; issue is and none violations of the Texas Indus- apparent. trial and Equipment Outdoor Power Act, 19.01, seq.; § Tex. Bus. & Com.Code et 7. Volvo's Complaint Second Amended in the (3) Deceptive violations of the Texas Trade Litigation sought North Carolina the follow- Act, Practices and Consumer Protection Tex. (1) ing: pursuant a declaration to the Lanham 17.41, (4) § Bus. & seq.; Com.Code et viola- (15 § Act seq.) U.S.C. et of trademark Act, Michigan tions of the Motor Vehicle infringement, competition, unfair and dilu- Ann., 445.1561, Comp. Mich. Laws Ch. et tion; (2) a declaration that the Lanham Act (5) seq.; violations of the Louisiana Dealer preempted any state law claims that were Act, 51:481, (6) § La.Rev.Stat. seq.; et viola- therewith; (3) inconsistent a declaration that Act; (7) tions of Ontario's Arthur Wishart there had been no breach of contract Vol- vo; violations of the (4) South Carolina Fair Prac- a declaration that there are no ancil- Farm, Construction, Volvo; tices of lary (5) Industrial and against tort law claims Manufacturers, Equipment Outdoor Power declaration that Volvo had not violated Distributors, Act, state statutes. Volvo's Second Amended Wholesalers and Dealers Complaint operative complaint 39-6-10, is the (8) seq.; S.C.Code Ann. et breach appeal. of contract good and the covenant of faith and (9) dealing; fair tortious interference with 8. The against Dealers asserted twelve claims contractual prospective relations and eco- Litigation Volvo in the Arkansas and in thе (10) enrichment; advantage; unjust nomic Litigation. North Carolina Those claims (II) (12) estoppel; recoupment. were for violations of the Arkansas Fran- 4-72-201, chise Practices Ark.Code et 12(b)(6)). 12(c) In and Rule Rule under and dismissed Litigation, North Carolina on the judgment Ar- an award reviewing of claims affirmative the Dealers’ alleged its facts at 558. we assume the pleadings, Litigation. Opinion kansas alia, determined, true, inter and we pleadings court to be the relevant Opinion, the Dealers supply refusal to therefrom. that Volvo’s draw all reasonable inferences did not Graders Radio, 406; Champion Motor at see also with 278 F.3d Elkins because Agreements Goldsboro, the Dealer breach 178 F.3d City v. Edwards of the Without Cir.1999). contained (4th each Finally, the issue 231, 244 addition, Id. at Provision. Cause under a entity protected of whether an were the Dealers court concluded ques- a statute is protection dealer state protec- the state dealer protected not law, See de novo. of which we review tion Louisiana, Arkansas, of tion statutes Hill, v. 322 F.3d States generally United Provi- Texas, the Choice-of-Law because (4th Cir.2003); v. Dean Hand seeking- from the Dealers precludes sion Inc., 483, 496 S.W.2d Reynolds Witter statutes. Id. under those protection (Tex.App.1994). a filed thereafter The Dealers 551-54. possess and we appeal, timely notice III. § 1291.9 to 28 U.S.C. jurisdiction pursuant ap- multiple issues on The Dealers raise II. that the district They first peal. maintain novo the issue review de We jurisdiction exercising court erred jurisdic possessed a district court whether Specifically, Litigation. North Carolina declaratory judgment proceeding. tion in a allege an failed to they contend that Volvo R. Richmond, Fredericksburg Potomac & controversy it and actual between (4th States, 945 F.2d 765 Co. v. United Moreover, maintain Dealers Dealers. Cir.1991). suffi If has asserted plaintiff jurisdic- possessed even if the declaratory judgment facts to create cient tion, an thereof constituted its exercise abuse of discre jurisdiction, we review abuse of discretion. to exercise decision court’s tion district that the dis- next contend The Dealers v. Falls Seven jurisdiction. its See Wilton ruled that Volvo’s when it trict court erred 277, 282, Co., 115 S.Ct. 515 U.S. was Agreements of the Dealer termination (1995) (“[Djistriet pos courts L.Ed.2d obligations. of its contractual not breach determining whether sess discretion terms contract They maintain under the De an action to entertain when cause,” in the as used “without “may” and even when Judgment claratory Provision, ambiguous, Without Cause ju subject matter otherwise satisfies suit com- are not that the Dealer de We review prerequisites.”). risdictional and that integrated, pletely judgment award a district court’s novo Provi- the Without Cause orally modified 12(c); see pleadings. on the Fed.R.Civ.P. that, notwith- The Dealers contend sion. Corp., Radio Broad. Co. v. Elkins Burbach Provision, Cir.2002) Cause (4th standing the Without (noting 401, 405-06 278 F.3d duty implied actions Volvo’s breached to motions applied that same standard however, has Volvo interlocutory, because partial judg- recognize that award 9. We remaining claims. voluntarily dismissed its generally con- pleadings does ment on the 1:00CV238, Trademark, No. No. Volvo Canoe appealable See Am. order. stitute an (W.D.N.C. L01CV232, Inc., Jan. Farms, Ass'n, No. 1:01CV122 Murphy Inc. 2003). Cir.2003). (4th appeal is not This 592 1994); good dealing. faith and fair The Deal- N. Square Assocs. v. Va. Jefferson that, Auth.,

ers maintain even if the F.Supp.2d also Dealer Hous. Dev. (E.D.Va.2000). Agreements completely integrated are by oral promises, contracts unmodified jurisdictional Two of these prereq- three estopped breaching Volvo from oral its uisites, third, the first and the are contest- representations. ed appeal. the Dealers on The second Finally, that the Dealers contend the jurisdictional prong, that the court must trumped by Without Cause Provision is possess independent jurisdic- basis for Arkansas, Louisiana, and Texas statutes parties, tion over the was satisfied when preclude manufacturers from termi- Complaint dropped Volvo filed its de- nating agreements dealer without cause NFC, only fendant the party defeating Statutes”). (collectively, the “State diversity. The properly district court thus Dealers assert under the Local Law concluded Volvo had established di- Provision, the Agreements gov- Dealer versity jurisdiction in Complaint. its Vol- erned the State Statutes. In the alter- Trademark, (W.D.N.C. vo No. L00CV238 native, the Dealers maintain that 2001). Aug. Choice-of-Law Provision should not be maintain, however, The Dealers that the given effect because the laws selected jurisdictional first and prongs third are not rationally thereunder are not related to met, and that the district court erred contrary and are jurisdiction. They exercise of assert that to the policies fundamental of their home (the prong Inqui- first “Cоnstitutional states. Volvo maintains that the Dealers ry”) is not satisfied because Volvo’s actions never raised this alternative contention in did not create an actual controversy under court district and that should not be Declaratory Judgment They Act. con- appeal. considered on (the tend that the third prong “Prudential We assess each of these contentions in because, Inquiry”) is not met if even turn. jurisdiction, court had it abused its discre- tion in considering the merits of this dis- A. pute. We address these inquiries below. We first consider whether the district court jurisdiction erred its exercise of Volvo’s declaratory judgment action. regard, elementary it is that a federal In assessing the Inquiry, Constitutional properly jurisdiction exercise we look to Declaratory Judgment declaratory judgment proceeding provides when which a case of actual “[i]n (1)

three essentials are met: complaint controversy jurisdiction within its ... any alleges controversy” an “actual between court of the United ... may States declare “of sufficient immediacy and rights legal and other relations of reality to warrant of declaratory declaration, issuance party seeking interested such (2) judgment;” possesses the court an inde- whether or not further relief is or could be pendent jurisdiction basis for par- over the sought.” (emphasis U.S.C. add- ed). (e.g., ties question diversity ju- federal A case controversy meets the actual risdiction); and the court requirement only does not if it presents a contro- abuse its juris- discretion its exercise of versy qualifies anas actual controver- 2201; diction. 28 U.S.C. sy Cont’l Cas. Co. under Article III of the Constitution. Fuscardo, (4th Haworth, Cir. See Aetna Ins. Co. v. Life the Litigation, and exis- 461, North Carolina 240, 81 L.Ed. 617 227, 57 S.Ct. U.S. that, plainly statute’s pursuant dispute to of a contract evi- (deciding tence Indeed, actual contro- involving when the to cases in the pleadings.10 limitation dent only respect with operative Motion, versy, Act is the Dealers’ Volvo court addressed controversy). The Dealers constitutional in Maine and Texas already had been sued termination although Volvo’s contend dealers,11 and had al- by Champion Volvo their disputes regarding created notices litigation ready and oral received written Champion Motor Grad- rights to distribute Dealers.12 threats from the create the ers, did not “the termination acknowledge that The Dealers controversy’ trаdemark ‘case type of controversy exists under the an actual review.” declaratory-judgment subject plain Act when a Declaratory Judgment below, im- this contention is explained As in order to declaratory relief tiff seeks material. potential damages for avoid the accrual of maintain that the Dealers first Y Corp. v. past actions. NUCOR Aceros juris question federal court lacked district Occidente, de Maquilas any not take ac they did because diction Cir.1994) (7th of (stating purpose De placed make assertion tion or Judgment Act is to avoid accru claratory of the im objective apprehension Volvo damages party uncer al of avoidable ability to or its of its trademark proper use initiated its rights). tain of its Volvo When controversy a For control its trademark. declaratory judgment action North pur judgment declaratory for to exist Carolina, had the Dealer it terminated however, not need situation poses, received Dealers’ Agreements, had action; if of a cause present federal threats, suits had separate and litigation diverse, a court federal in Maine and Texas. against it been filed jurisdiction over a subject matter possess circumstances, a possessed Volvo In these Dealers dispute. The contract state-law multiplicity of a apprehension reasonable that the pleadings in their admitted have liability ongoing of litigation and of diversity jurisdiction over had original complaint in Volvo's sought a "declara- fendant Complaint, Volvo (i.e,, NFC) litiga- commenced rights North Carolina respect to judgment [its] with tory Texas, contending, inter against Volvo in tion obligations contracts....” under certain alia, And, ¶3. its dealer Volvo could not terminate assessing whether an Complaint agreement without cause. controversy Volvo and between existed actual magis- Complaint, the Dealers under the litigation against judge "run[s] Volvo Volvo observed that initiation of trate 12.The incurring multiple litigation distinguish [it does] liabilities if threats of risk and the future Jefferson, judicial interpretation and clarifica- a dispute seek from North decision There, rights respect rely. to the con- the district [its] which the Dealers tion on doubt, controversy active there is an was not .... Without tracts court determined that among controversy Declarаtory Judgment these Act present immediate under the ” any ac- Volvo Trade- taken plaintiffs and defendants.... the defendant had not because nature, mark, (W.D.N.C. tion, April against the preliminary No. 1:00CV238 even of not indicated plaintiff, had defendant 2001). legal any future action that it intended to take Jefferson, plaintiff. N. against Champion dealer February 11. On generally GTE Directo- Burkitt, F.Supp.2d at 718. See litigation against initiated Inc. N.A. Inc., Am., Corp. v. F.3d alleging, Pub. Trimen inter ries in the District Maine Volvo Cir.1995) (11th (holding that threat alia, of its dealer that Volvo's termination controver- litigation gives to actual rise Ve- future Maine Motor contravened 28, 2000, sy). a de- August Act. On Dealers hicle sue,” controversy An actual there- and “will terminate and afford relief damages. uncertainty, insecurity, fore existed between Volvo and the Deal- from the and con troversy giving proceeding.” initiated the North rise to ers when Volvo Car- Quarles, Litigation. prong olina The first of the Aetna Cas. & Sur. Co. v. 92 F.2d (4th Cir.1937). 321, declaratory judgment test is thus satis- 325 And we have of “ fied. ten that observed ‘district courts have great in determining latitude whether to jurisdiction declaratory ‍‌​​​​​‌​‌‌‌​‌‌​​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​‍judg assert over ” Capitol ment actions.’ United Ins. v.Co. maintain The Dealers next (4th Cir.1998) 488, Kapiloff, 155 F.3d 493 satisfy prong Volvo fails to the third of the (quoting Aetna Cas. & Sur. Co. v. Ind- .test, declaratory judgment the Prudential (4th Co., Com Elec. 139 F.3d 422 Inquiry. They contend even if an Cir.1998)). circumstances, In these controversy actual existed and the district district court did not abuse its discretion. possessed independent court basis of Opinion Its purposes: served several useful jurisdiction, the court nevertheless abused it clarified and settled legal Volvo’s obli jurisdiction its discretion when it exercised gations Agreements, under the Dealer it Litigation. Carolina North uncertainty regarding eliminated those If possesses a district court de agreements, and it clarified the contractual jurisdiction, claratory judgment may rights parties.13 nonetheless, in the exercise of its discre tion, Dealers, decline to entertain the action. relying See on the (acknowl Co., Cont'l Cas. 35 F.3d at 965 Supreme Court’s decision in Colorado Riv edging jurisdiction possessed in er Water Conservation District v. United States, declaratory judgment 800, 817, noting action and 424 U.S. S.Ct. question (1976), that critical was whether court L.Ed.2d princi maintain that jurisdiction). should have exercised its ples efficiency comity compelled discretion, however, The exercise of such district court either to dismiss or abstain is not without action, bounds. We have held that declaratory judgment from Volvo’s a district court “good must have reason” in the conserving judicial interests of re for declining declaratory to exercise its comprehensively sources and disposing of judgment jurisdiction. Judge Id. As Par litigation. recognize We that the fed aptly opined years ker ago, a district court weigh eral trial courts should legiti obliged is on rule the merits of a declar efficiency mate concerns of comity atory judgment declaratory action when deciding when whether to award declarato relief “will purpose ry serve useful in clari relief. Id. As the acknowledge, Dealers fying however, and settling legal relations in is- “the first suit priori- should have predicate underlying ap- 13. The'factual acknowledge may ers that a federal court peal analogous underpinnings declaratory judgment to the factual jurisdiction exercise its There, Kapiloff. plaintiff we concluded seeking that a “de- when a a declaration to claratory judgment designed allay potential damages action is avoid the accrual of exactly uncertainty past the sort of Tempco Corp. flows from actions. See Elec. Heater Inc., ambiguous (7th rights Omega the threat that Eng’g, contractual 819 F.2d asserted,” Cir.1987) (observing and we observed that a declaratory judg- "declaratory judgment party action allows the un- ment is available where desires declara- party gain certain insecurity legal relief from the proposed past tion of effect of course action). potential waiting caused suit in the dispute, seeking In this Volvo was wings.” Kapiloff, 155 F.3d at 494. The Deal- such a declaration. was, therefore, Agreements. en of con er Volvo showing of balance ty, absent the Agreements titled to terminate the second action.” in favor of the venience under the Cause Provision.14 Welding Without Corp. v. Modern Mach. Ellicott (4th Inc., Co., 180 n. Cir. The Dealers do not contend that 1974) (internal marks and cita quotation terms of the Dealer express omitted). situation, as there In this tion terminating from their preclude Volvo the court did showing, has been no such Instead, dealer contracts without cause. in declining to not abuse its discretion they contend that the Cause Pro Without proceeding. the Arkansas dеfer to ambiguous and that vision is district beyond obligated court was to look B. in Agreements determining Dealer Volvo’s next maintain that The Dealers obligations. contractual Under South Car obligations breached its contractual Volvo law, apply olina and Ontario which to Agreements it terminated the Dealer when claims, and contract CLM’s Clark’s and programs of Volvoization under (1) court not err the Without did because specifically, Rationalization. More Dealer unambiguous; Cause Provision is clear and that Volvo breached the Dealers contend (2) Agreements integrat the Dealer were began when it Agreements the Dealer instruments; promises, ed and oral Champion Motor placing labels on Volvo dealing, industry course and custom can of provide and when it refused to Graders plain unambiguous and terms not alter the inventory Champion of Dealers with Agreements. integrated See below, explained we Motor Graders. As Janicare, Inc., Leasing Corp. v. U.S. disagree. (Ct.App.1988) S.C. S.E.2d law, foremost, that, (providing under South Carolina Volvo’s termination First and language imports if that did not consti contract contains Agreements of the Dealer obligation, parol or extrinsic complete legal because the tute a breach of contract contract); to add to authorized Volvo evidence is not admissible Cause Provision Without Ltd., Tropic Int’l acquired Volvo ierrez to act as it did. When Gut (Ont.C.A.2002) (providing Champi Volvo assumed O.R.3d Champion law, that, evidence of collat- obligations under the Deal under Ontario rights on’s that would not in the absence of Market Withdrawal Provision 14. Volvo also contends Provision, Champion Cause its terminations the mar- permit the Without to withdraw from Agreements would not consti- the Dealer meaningless ketplace render would because "the Market tute breaches contract any product product phrase “discontinue or contemplates possi- Withdrawal Provision contend, however, that in lines.” The Dealers Champion completely disap- bility could that market,” to "withdraw from the Volvo order marketplace liability pear without from the producing graders to cease motor would have following of the CHAM- a discontinuation simple Champion factory act of at the —the graders.” of motor The Market PION line relabeling not constitutе a withdrawal does provides: Withdrawal Provision marketplace. court As the district from right any at time to Champion reserves the observed, however: models, change models and classification of dealership terminate the contracts Volvo did not any specifications, or discontinue or add to discontinuing Champion Road virtue of product products or lines without notice withdrawing product graders or motor incurring and without Distributor] or [Dealer market; were the contracts termi- from the changes any obligation incorporate such provision pursuant to the ... for termi- nated any products. other Opinion at 543-44. without cause. nation CLM, Clark, Agreements § 27. FEC Dealer Volvo, any interpretation According to looked is not admissible to contra- the district should have agreement eral contract). beyond the four corners of the Dealer integrated dict terms of

Agreements determining con- Volvo’s tractual obligations. The Without Cause provides “Champion Provision the terms of the Deal Because any terminate time [the] legal position ad Agreements er favor the by written of termi- without cause notice Volvo, emphasize the Dealers vanced ” CLM, Clark, nation .... Deal- FEC promises allegedly oral made series of added). Agreements (emphasis er 24.4 representatives before the Deal Champion terminology Dealers contend er were made. South Car ambiguous because fails to define the however, Ontario, parol olina and evi “may” they and “without terms cause” as precludes dence the use of extrinsic rule contrary, To used therein. howev- prior contemporaneous or ne evidence er, nothing ambiguous there is about the contradict, alter, gotiations explain “may,” term ambiguity and there is no Agreements, pro the terms of the Dealer operative of the other terms complete, are unam agreements vided the Without Cause Provision. Those terms biguous and unconditional. See Gilliland easily commonly are in understood the Prop., v. Elmwood 301 S.C. 391 English language terms are —contract (applying South S.E.2d Cromeens, rarely plainly more stated. See Gutierrez, law); at 71 Carolina 63 O.R.3d Holloman, Sibert, Volvo, Inc. v. AB law). the Dealer (applying Ontario Unless (7th Cir.2003) (declaring F.3d con- Agreements ambiguous incomplete, are or language tract permitting agree- dealer representations made to promises oral or ment to be terminated at time without by Champion representatives the Dealers unambiguous).15 cause to be prior Agree to execution of the Dealer agreements. ments have no effect on those contend, however, The Dealers In appeal, their the Dealers maintain that ambiguity that the of the Without Cause Agreements ambigu the Dealer are both apparent Provision is when examined incomplete ous and and that the district the context of 24 of Section the Dealer by incorporating court erred not Volvo’s Agreements. specifically, More the Deal oral promises explained into them. As maintain “may ers that the terminate” lan below, disagree. we guage of the Without Cause Provision con sharply trasts with the “shall terminate a. automatically” language found Subsec The Dealers first maintain that the tion 24.5. As the district court noted however, ambiguous Opinion, Without Cause Provision is this distinction relates Cromeens, appeal, 15. The Seventh Circuit’s decision in Cromeens 391. On the 7, 2003, Samsung was filed on November month after dealers maintained that the "with- appeal argued. provision Samsung this was One of the issues in out cause” in the dealer whether, programs agreements ambiguous. Cromeens was under their was The Seventh Rationalization, contention, rejected ruling of Volvoization and Dealer Circuit this Volvo, AB, language provision AB Volvo Excavators and Volvo of the "without cause” Equipment plain.” Construction NV could terminate "could not be more Id. at 391. The Samsung equip- the dealers of construction Seventh Circuit then concluded that the deal- agreements agreements unambiguously permitted ment without cause. The dealer er ter- Samsung in Cromeens contained a termination clause mination dealers without analogous to the Without Cause Provision. cause. Id. promises evidence of made incomplete, under termination the fact discretionary Provision is Cause prior Without to execu- Champion representatives days notice. only sixty after and occurs Agreements tion of the Dealer A termination under Sub- Opinion at 545. In parol evidence rule. this barred 24.5, contrast, is non-discretion- section regard, applying a court South Carolina automatically upon the ary, and it occurs obliged writing law is to consider Ontario event, such as occurrence of certain complete writing if “the on its face as bankruptcy. when a dealer files for agreement.” whole appears express also maintain that The Dealers 205; Leasing Corp., 364 S.E.2d at U.S. “without ambiguity the term Fridman, Law G.H.L. Contract Can- in the apparent when examined cause” is (4th ed.1999). addition, ada we are 24. The Dealers con context of Section integration to consider an clause entitled 24 otherwise tend because Section in weighing contracting whether can terminate provides Champion when intended a written contract to constitute cause, the Dealer Gilliland, entirety agreement. of an Provi “cause” in the Cause term Without Gutierrez, 581; at 391 S.E.2d O.R.3d mean a interpreted sion should situation, Agree- for in provided not otherwise Sec cause explicit, and each has ob ments are detailed and tion 24. As the Eleventh Circuit however, served, “with the fact both Integration providing contains the Clause cause” and “without cause” termination only writing is “the entire and are contained the same sec provisions parties respecting between the only of a contract shows tion by ... and distribution” purchase differentiated between termination products parts.16 and Champion Dealers of and termination without cause. for cause Furthermore, Agreements em- the Dealer a contract contains both “for And when in con- that “terms or conditions phasize provisions, “without cause” cause” and incorporated therewith not herein nection contract, may terminate a even party party.” binding upon not be either shall by oth of breach or fault the absence agreements provide they Finally, the to the without cause party, pursuant er terminate, cancel, previ- all supersede and Giesting & provision. Corp. Harris (11th into between the Assocs., Inc., agreements ous entered Cir.2002). agree with the district We Agree- Dealer CLM and Clark parties. court; Provision is the Without Cause 32.1; Agreement Dealer ments FEC “clear, unambiguous.” Opin and specific § 33.1. ion 546. circumstances, the Dealer In these

b. in- unambiguous and Agreements are both such, agree we with tegrated. As next maintain The Dealers issue. parol court on the evidence that, district Agreements because the Dealer incorporatеd herein shall Integration specifically pro- tion therewith not Clause 16. The agree- binding upon party. This either vides: not be cancels, super- wholly and ment terminates agreement [any] accompanying Exhib- and This any agreement entered into heretofore sedes agreement only its contain the entire and parties, their successors or or between parties respecting and the sale to between the pertaining and Parts. assigns, to Products purchase or Dis- [Dealer and distribution 32.1; Parts, Agreements FEC Dealer any rep- CLM and Clark of Products and tributor] resentations, Agreement § 33.1. Dealer in connec- terms or conditions support of modification of rule bars the Dealers consideration evidence parol they made the Modification Clause is that contin utilizing representations oral from modify Champion ued to market Motor Graders execution to prior to contract Champion purchased after was Volvo. Agree- of the Dealer contradict the terms may good made Although the Dealers have at 546. Opinion ments. Champion faith to market Motor efforts purchase by Champion’s Graders after 2. Volvo, could not constitute such efforts next maintain The Dealers in support consideration of an oral modifi subsequent promises, oral made because, cation under the Best Efforts representatives Champion and Volvo after Provision, preexisting Dealers had a executed, were al Agreements the Dealer to make such efforts. obligation contractual Volvo acknowl tered the terms thereof. 183, 26 Corp., Rabon v. State Fin. 203 S.C. rule does not edges parol that the evidence that, (observing S.E.2d maintains, it promises; bar the use of such law, pursuant agreement to South Carolina however, pre that the Modification Clause already legally to do what one is bound use here. Pursuant to the cludes their sup do is not sufficient consideration to Clause, Modification modification of Francis, 21 port agreement); new O.R.3d invalid Agreement Dealer unless law, (observing at 82 under Ontario writing signed by an authorized perform preexisting duty Champion response officer.17 to Volvo’s consideration). does not constitute new Clause, on the Modification reliance circumstances, such the Dealers’ conten Dealers that a “no oral modificatiоn assert subsequent tion of oral modification of the modified, orally itself be vali clause” must fail. dating subsequent unwritten modifications. fail, however, position must also be

This

cause, pursuant to South Carolina On law, tario an oral modification of a written In their final to convince effort supported by separate contract must tous read additional terms into the Dealer adequate and v. consideration. See Evatt Agreements, the Dealers contend 1, 447, 106 449- Campbell, 234 S.C. S.E.2d defining parties’ obligations under the (1959) (observing 50 that written contract Agreements, Dealer we should look to the changed by subsequent parol be dealing parties course of between the and agreement supported by valuable consider industry regarding heavy equip to custom ation); Imperial Francis v. Canadian Although ment dealer franchises. courts Commerce, 75, Bank 21 O.R.3d 83 of commonly look to evidence of the course of (Ont.C.A.1994) (recognizing principle of dealing industry usage and custom and that contract law additional consideration terms, in assessing ambiguous contract un required support modification of ex law, der South Carolina and Ontario “ex isting agreement). usage trinsic evidence of a or custom not contending expresses The Dealers’ sole basis for admissible where the contract they provided separate adequate that and the intent of the in clear and unam- 33.2; provides: Agreement § 17. The Modification Clause FEC Dealer CLM Clark and modification, renewal, Agreements (omitting Dealer 32.2 "waiv- agreement, This and waiver, hereof, er”). extension or termination shall writing signed by not be valid unless in and duly Champion. authorized officer of (Ont.C.A.1976) can Corp., (“[E]stoppel nev- Leasing biguous language.” U.S. Gutierrez, 206; only er used as a sword but as a shield. see be 364 S.E.2d plaintiff estop- A cannot found his claim in evi- (concluding at 71 extrinsic O.R.3d Carolina, vary pel.”). equitable terms of And South not admissible to dence is contract). precluded theory prom- relief is under a unambiguous clear and issory estoppel estoppel if the claim is in Agreements Dealer are clear terms of the with a specific must decline to direct conflict contract unambiguous, and we County course term. See Charleston Dist. v. modify them on the basis of either Sch. Transit, Inc., 420, 559 industry custom. Laidlaw 348 S.C. dealing (Ct.App.2001) (holding S.E.2d 364-65 party acknowledges being who bound equity cоntract cannot recover under contend Finally, the Dealers theory promissory estoppel estoppel if implied duty of breached its Volvo claim is in direct conflict with contract it refused dealing faith and fair when good term). estoppel claims CLM’s Clark’s Motor Champion them with supply law, are barred under South Carolina Ontario, In Graders. South Carolina therefore, they conflict because with the however, can no breach of an there Cause Provision. Without faith and fair implied good covenant of dealing party [does] where “a to a contract D. expressly of the contract provisions

what right him the to do.” Adams v. G.J. [give] next turn to the Dealers’ contentions We Sons, Inc., 274, 465 320 S.C. Creel & regarding the State Statutes. The Deal- (1995); see Peel Condo. S.E.2d that, notwithstanding maintain ers Ltd., Homes, Cam-Valley No. Corp. Provision, pro- was Without Cause Volvo (Ont.C.A.2001) (holding 53 O.R.3d from termi- hibited the State Statutes good dealing faith and fair that covenant of Agreements the Dealer without nating contract). by terms of is circumscribed con- good specifically, cause. More Clark Agreements gave regard, the Dealer Act the Arkansas Franchise tends Volvo, Champion, right and therefore (the Act”) prohibited “Arkansas Volvo to terminate the Dealer with Agreement terminating from its Dealer terminating the Dealer out cause. (Ark.Code 4-72-201, seq.); et CLM then, Volvo could not have Agreements, of its maintains that Volvo’s termination duty good faith and fair breached its Agreement prohibited was dealing. (the Act”; Dealer Act “Louisiana Louisiana 51:481, § seq.); et FEC La.Rev.Stat. C. Farm, Indus- that both the Texas alleges The Dealers maintain Deal- Equipment trial and Power Outdoor are com if the Dealer even (the Act”; Tex. Bus. & “Equipment Act er unmodified pletely integrated contracts 19.01, seq.) § et and the Texas Com.Code rep Champion of and Volvo promises the Trade Practices and Consumer Deceptive resentatives, from estopped Volvo is (the “DTPA”; Tex. Bus. & Protection Act Dealers’ breaching promises. its oral 17.41, precluded § Vol- seq.) et Com.Code Promis estoppel theory is without merit. Agreement. termination of its vo’s of simply not a cause sory estoppel exercising A di federal See Gilbert recognized action Ontario. Constr., Ltd., jurisdiction obliged apply to Steel, versity 12 O.R.2d Ltd. v. Univ. sits, Moreover, the claims asserted in which it law of the state substаntive Litigation in the Arkansas Dealers choice-of-law rules. including the state’s mirror images of their counterclaims Tompkins, 304 Erie R.R. v. U.S. See Co. Thus, Litigation. ap- the North Carolina (1938); 64, 79, 817, 82 L.Ed. 1188 58 S.Ct. plying Arkansas law to the Arkansas Co., Inc., Mfg. Elec. Klaxon Co. Stentor claims and North law to the Carolina 487, 496, 1020, 85 L.Ed. 313 U.S. 61 S.Ct. (in could North Carolina counterclaims that forum state’s (observing least) theory, at lead to different results on substantive). And choice-of-law rules are identical claims. It therefore seems clear a is transferred from one when lawsuit only rules of one the choice-of-law pursuant court to another to 28 federal be to this action. For applied state should 1404(a), transferee court is U.S.C. Petroleum, example, in Boardman Inc. v. obliged apply the choice-of-law rules Co., Federated Mutual Insurance ap- that the transferor court would have (11th Cir.1998), an insurer and its Barrack, plied. Van Dusen v. 376 U.S. actions in the feder- separate insured filed 612, 632-37, 805, 11 L.Ed.2d 945 84 S.Ct. states, raising al of courts different both (1964). however, transfer, a This was not coverage of question whether existed 1404(a) typical § convenience-of-the-wit- policy. under an insurance The insurer’s Instead, nesses transfer. Arkansas action was transferred from South Car- Litigation was transferred to North Car- Georgia, olina to ac- where the insured’s olina because the North Carolina court pending, proceedings tion was and the declined to defer to the Dealers’ later filed were consolidated. The Eleventh Circuit Arkansas case. The North Carolina Liti- applied Van Dusen but nonetheless con- filed, gation proper was first venue was necessity, only cluded that “of one state’s Carolina, Western District North applied” law to the consolidated possessed jurisdiction and that court over 753; case. Id. at v. Am. see also Bott parties. all The North Carolina Hydrocarbon Corp., F.2d 899-900 court’s that it decision need defer (5th Cir.1971) (“[W]hen the California ac- therefore, court, entirely the Arkansas was tion was transferred to Texas the Califor- circumstances, proper. Under these only nia law went it. But with this is in light principles animating step, first because the Texas District Dusen, Supreme Court’s decision in Van pending sepa- found Court before two we are not at all sure that the Dusen Van rate but identical actions between the precedent blindly should be and mechani- parties, sаme which it consolidated.... cally applied, try The Texas court could not the consoli- as the Dealers would have us Dusen, 635-36, dated cases under if to do two sets laws do. See Van 376 U.S. at would If (“The produce differing so results. legislative history 84 S.Ct. 805 conflict, a required there was it was 1404(a) certainly justify does not law.”). make a choice of startling might rather conclusion that one get change law as bonus for event, definitively we need not Indeed, change of interpreta- venue. thorny decide how this issue should be tion accepting go such a rule would far to resolved, princi- because the choice-of-law purposes frustrate the remedial of ples of North Carolina and Arkansas are 1404(a). change If a of law were in the sufficiently similar that the outcome of this offing, parties might regard the well the dispute would be the same under either set in- primarily forum-shopping section as a of rules. Both North Carolina and Arkan- strument.”). typically give effect to contractual sas

601 provision, v. contract contains choice-of-law provisions. See Torres choice-of-law McClain, 238, N.C.App. 535 S.E.2d parties exception presumptive 140 intended (2000) 623, parties’ that choice (holding 625 place rule that law of where con-tract Jones, binding); In re generally of law is situation, governs). made this (Bankr.E.D.Ark.1999) (ob- 66, 231 B.R. 68 Agreements Dealer each contain a Choice- generally courts will serving that Arkansas of-Law Provision.18 law). In contract’s choice of addi- uphold Recognizing difficulty presented by later, tion, in more detail both as discussed provision, that the Dealers attack Volvo’s rely and North on the Arkansas Carolina position Agreements the Dealer are (Second) of Conflict of Laws Restatement governed solely by South Carolina On- Restatement”) (1971) (the to de- “Second First, tario law. the Dealers contend that the circumstances under which termine the Local Law Provision is a choice-of- also will be provision contractual choice-of-law that, thereto, pursuant law clause and Servs., Tel Inc. v. given effect. See Cable Agreements governed by Dealer Inc., N.C.App. Contracting, 154 Overland Second, State Statutes. the Dealers main- 31, (2002); 639, S. Farm 574 S.E.2d 33-34 that, Craven, if Agreements tain the Dealer are not 79 Ark. Bureau Cas. Ins. Co. (2002). 369, 423, Ac- governed the State Statutes under the App. 89 S.W.3d Provision, cordingly, simplicity, the interest of Local Law the Choice-of-Law it will not affect the outcome of because law select- Provision invalid because the proceeding, approach we will this dis- ed thereunder contravenes the fundamen- of North pute through prism Car- tal policies their home states. We ad- olina’s choice-of-lawrales. dress these contentions below. support of their contentions re Statutes, garding the State the Dealers rely presumptive on the rule of lex loci The Dealers first contend contractus, is, interpretation of a are, effect, there two choice-of-law governed by contract the law of the Agreement clauses each Dealer —the Tanglewood it was made. place where See (§ 29) Choice-of-Law Provision and the Co., Byrd,

Land Inc. v. 299 N.C. (§ 30). The Dealers Local Law Provision (1980) (observing presump S.E.2d two clauses are recon maintain these interpretation gov tion that of contract is cilable because the drafters of contract place erned law of where was could have intended made). law, Under North Carolina howev applicable Provision to be Choice-of-Law er, presumption may be overcome such governing of local law only the absence provi presence choice-of-law agreements. The Dealers contend Lumber sion in a contract. See Bueltel v. that, are rec Co., provisions because these two N.C.App. Mut. Ins. oncilable, give effect to when it would be error to (noting S.E.2d Agreements § 29. The in the Clark CLM and Clark Dealer 18. The Choice-of-Law Provision agree- in the FEC Choice-of-Law Provision Agreements provides: and CLM Dealer provides: ment Agreement in South This has been formalized obligations Agreement rights and and the This Carolina, rights, and obli- and the duties governed by parties shall be of the hereunder gations set forth herein shall as in accordance with the laws and construed according to the laws of the determined of Ontario. the Province State of South Carolina. Agreement 29. FEC Dealer provided right. them with this explained pressly not the other. As one clause but not, however, below, contentions are without merit. these The Dealers did seek that modify Agreements the Dealer so Provision, Law the the Local Under only good “for they could be terminated Deal- rights obligations created and that, cause,” they cannot now maintain and subject applica- are to all Agreements er Provision, they under the Local Law orders, laws, gov- regulations and ble protected by the State Statutes.20 government agencies having and ernments If jurisdiction parties. over the a con-

tracting party that a local law believes 2. substantially relationships es- alters assault on the their second Agreement, its Dealer that tablished Provision, the Dealers Choice-of-Law party may request party the other to mod- application maintain that of South Carolina Volvo, ify agreement.19 According to (under Statutes, if law the Clark and CLM Dealer applied, the State would effec- Provision, (under tively nullify the Cause Agreements) Without and Ontario law substantially altering relationship be- Agreement) Dealer is unreasonable FEC Champion tween and the Dealers. We policies and contravenes the fundamental agree. Arkansas, Louisiana, and Texas. De spite North Carolina’s adherence to the provides The Local Law Provision contractus, presumptive rule of lex loci ready mechanism for the Dealers re- contracting parties North Carolina are quest that the Dealer be mod- agree particular jurisdic entitled to that a ified. If the Dealers had viewed State govern tion’s substantive law will their substantially altering ‍‌​​​​​‌​‌‌‌​‌‌​​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​‍Statutes as the rela- contract, provision general and such will tionships parties between the under the Torres, ly given effect. See 535 S.E.2d Agreements, they Dealer were entitled to (or Volvo) (holding parties’ at 625 choice of law request Champion modify agreements; generally binding).21 the Local Law Provision ex- In certain eircum- Diesel, Corp., provides: 19. The Local Law Provision Inc. General Motors 328 F.3d (5th Cir.2003). Their reliance on these rights obligations parties The hereto decisions, however, orders, laws, misplaced. agree- subject applicable The shall be to all directions, regulations, expressly pro- restrictions and limi- ment at issue in Sutter Home governments government agen- "[ejxcept required by tations of vided as otherwise law, having jurisdiction parties cies over the here- applicable Agreement gov- this shall be law, order, to. In the event [a local] erned the law of the State of California.” direсtion, limitation, regulation, Home, restriction or (emphasis Sutter 971 F.2d at 406 add- appropriation, interpretation ... ed). thereof language This is absent from the Dealer shall, judgment party in the of either hereto Agreements. at issue in Lake substantially relationship alter the between provided "any provision Charles which Agreement under this or the ad- jurisdic- contravenes the laws of state or vantages relationship, derived from such ei- Agreement performed tion where this is to be party may request ther the other hereto to mod- part Agreement will be deemed not a of this ify Agreement. Charles, jurisdiction.” in such state or Lake CLM, Clark, Agreements § FEC provision 328 F.3d at 197 n. 10. No such added). (emphasis Agreements. exists the Dealer support of their contention that the Lo- recognize "Supreme 21.We has cal Court Law Provision mandates that the State consistently govern Agreements, accorded of forum and Statutes the Dealer choice decisions, rely provisions presumptive Dealers on choice of law validi- two Sutter Home Ltd., London, Selections, Winery, Vintage ty.” Lloyd’s Inc. v. Allen v. (9th Cir.1992), (4th 1996). F.2d 401 and Lake Charles Cir.

603 a. however, will de- stances, North Carolina provision. choice-of-law to honor a cline contends that the Volvo Sub on the Second Re- relies North Carolina Relationship and Fundamental stantial such cir- whether statement to determine Policy issues were not raised the district Tel See Cable present. are cumstances circumstances, exceptional court. Absent Servs., Pursuant 574 at 33-34. course, S.E.2d do not consider issues raised of we Restatement, a choice- Williams v. § appeal. 187 of the Second for the first time on Inc., (4th Transp. 'l if not be enforced provision will of-law Prof States, Cir.2002) (citing Muth v. United following two conditions either of the (4th Cir.1993)). Indeed, F.3d we satisfied: only appeal consider such issues on when (a) chosen state has no substantial to do so would in a the failure result relationship to the parties or the trans- Muth, justice. 1 F.3d at miscarriage and there is no other reasonable action choice, or parties’ basis for the contention, In support of its Volvo relies (b) of the chosen of the law application Opinion on an observation contrary to a state would fundamen- Agreements may the Dealer Dealers and a materi- policy tal of a state which has relationship not bear a reasonable to South the chosen ally interest than greater Carolina or Ontario. The court declined to particu- state in the determination such a reasonable relation- decide whether lar issue.... existed, however, ship concluding that the Re- Dealers had not raised Substantial (emphasis add- Restatement Second Opinion issue. at 542 n.5. The lationship ed). maintain that The Dealers Dealers maintain that Volvo has mischar- apply does not Choice-of-Law Provision they point, acterized the record on this prongs it contravenes both here because Relationship that the contend Substantial contend, first, that They test. Policy issues were and Fundamental relationship be- there is no substantial support court. raised the district Carolina and the Clark tween South position prop- that these issues were their (the “Substantial CLM raised, to memoran- erly point the Dealers issue), and, second, ap- Relationship” (the 23, 2002 “October da filed on October law plication of South Carolina Ontario they maintained: Response”), which contravene the agreements to those would protected by are dealer all the Dealers Arkansas, Louisi- policies fundamental enacted their own protection statutes (the ana, Policy” “Fundamental and Texas protect them from legislatures state issue). seeking that Volvo is precise action .... one of the undertake all but aspect of the. addressing Before statutes contain ‘non-waiver’ applicable on the Choice-of-Law Dealers’ assault contract provisions meaning Provision, we must assess whether Volvo — circumventing cannot be seen as simply in its contention that the Substan- correct the statute. Policy Relationship tial and Fundamental in the dis- properly raised issues were Response, In the October properly are trict court. If those issues some of the Dealers asserted because us, provi whether the contain anti-waiver before we must determine Statutes State them, sions, protected by the State Stat- the Dealers protected Dealers are of the Choice-of-Law despite presence utes. plainly encompass fail to Agreements. pleadings in the Dealer Provision that there is no substantial re- properly an issue was contеntion assessing whether under court, obliged lationship between the law selected we are raised the district Provision, on the one any theory plainly the Choice-of-Law appeal on to consider hand, and the the Dealer by the encompassed submissions other. therefore Agreements, on the We underlying litigation. Maynard See (4th Co., 538, court—the Dealers agree with the district Elec. Gen. Cir.1973). circumstance, Re- properly the Octo did not raise Substantial this Opinion at 542 encompasses lationship the con issue below. Response plainly ber Moreover, present- have n.5. the Dealers tention that certain of the State Statutes (namely the ed us with no reason to believe de- provisions anti-waiver contain Act, Act, clining appeal to address this issue on Equipment the Texas Arkansas justice. A), miscarriage in a protection DTP and that will result and the Texas these statutes cannot of the Dealers under b. by circumvented the Choice-of-Law this Provision. We will therefore consider Next, assessing whether before Dealers ac appeal. contention on constitute fundamental State Statutes knowledged Response, in the October how Arkansas, Louisiana, policies of or Texas (i.e., ever, that one of the State Statutes govern Agreements, the Dealer and thus Act) Louisiana does not contain we must decide whether the Dealers are raising than anti-waiver clause. Rather If protected parties under those statutes. Act sets the issue of whether the Louisiana protected a Dealer is one of the State Louisiana, policy forth a fundamental Statutes, we must then determine whether trumps and therefore the Choice-of-Law applies Champion the statute also Motor Provision, the Dealers asserted the Graders. governs Agreement

Act CLM’s Dealer be Al cause of the Local Law Provision. though the failed to in the Dealers assert can We first consider whether FEC as- Act district court that the Louisiana ex Equipment a claim the Texas sert under Louisiana, policy presses fundamental Act, provides which that a manufacturer point in determin addressed may not terminate a dealer ex- ing precluded the Louisiana Act whether cept for cause. Tex. Bus. & Com.Code termination of the CLM Volvo’s ruled, § 19.41.As the district court howev- Agreement Oрinion without cause. at 554. er, FEC cannot state a claim under the question Because the of whether the Loui Equipment Texas Act because FEC is not expresses pol siana Act fundamental state by it. party protected When FEC ac- court, that icy was decided the district quired Champion dealership its properly appeal. before us on issue is Equipment the Texas Act excluded from Currie, Servs., Health Inc. v. Home protection “person[s] prin- whose those (4th Cir.1983) (observing F.2d cipal business is the sale of off-road con- appeal that issue be considered on if 19.01(5) § equipment.” (orig- struction Id. argued specifically it was below or decided 19,1991, inally May Act of 72nd enacted as court). by district 1), Leg., ch. amended Act of 1, 1999, Sept. Leg., next consider whether 76th ch. 2. The We Relationship prop issue was court concluded that FEC could not state Substantial Equipment a claim Texas Act erly point, raised below. On this under the it ruled (Tex.App.1995), consti- 135 that FEC Champion Motor Graders because equipment.22 off-road construction tuted was not under the DTPA.23In consumer agree. (“Gibbons”) Because FEC Opinion Fisher,- at 553. We of a compa- the owner a claim under the Texas unable to state ny in the engaged resale of valves and not address the we need Equipment (“ACI”) company’s instruments sued the provisions whether its consti- question of (“Fisher”), supplier alleging violation of of Texas. policy tute a fundamental independent the DTPA. ACI was an sales representative for Fisher: In his DTPA claim, alleged Gibbons that Fisher had turn to the issue of We next falsely promised agree- to extend ACI’s a claim FEC can state under whether beyond years expressly ment the three DTPA, provides protection which Texas contract, in provided its and that Fisher v. only Kennedy to “consumers.” See long-term failed to inform ACI of Fisher’s (Tex.1985) Sale, 890, 689 S.W.2d 892-93 plan independent business to terminate its designed protect that DTPA to (noting is (such ACI). representatives as Id. at 139 “consumers,” as that term is defined only Gibbons, Although jury n. 1.. found for therein). DTPA, “a Under the consumer granted judgment the trial court notwith- acquires, by purchase or is one seeks who verdict, standing concluding that ACI , lease, any goods Rayford or services.” was not a consumer under the DTPA. (Tex.App. 411 73 S.W.3d Maselli 2002) Ann. (citing Tex. Bus. & Com.Code The Texas Court of Appeals began its 17.45(4)). maintains appeal, On FEC analysis of whether was a ACI consumer DTPA, that it under the сonsumer authorized,, that noting ACI was under in that ruling that the district court erred agreement, “buy products at Fisher that it could not state a claim under stat a discount and resell them on its own In erred assessing ute. whether ruled, at 139. behalf.” Id. The court how- ruling, we must ascertain and follow so ever, despite being buy that authorized to Erie, law of Texas. the substantive See products, Fisher ACI was not a consumer 78-79, 304 U.S. 58 S.Ct. 817. under the DTPA. The court observed that complaint premised DTPA was on ACI’s heavily In court relied Opinion, its ... “intangible right to act property ACI’s the Texas decision Fisher Controls on Gibbons, International, representative Inc. v. as Fisher’s sales under the S.W.2d whether, cases, Legislature has not addressed the issue of In the Texas amended Equipment Act so that a "dealer” pursuant agreement analogous the Texas to a dealer engaged the Act dealers in the FEC's, under included is a consumer under the a vendee equipment. retail sale of off-road construction no reason to believe DTPA. Because there is however, Legislature provided, "[a]n disagree Supreme Court of Texas would agreement entered into before the effective (an Appeals the Texas Court of interme- with [Sept. governed,by date of Act 1999] issue, Texas) appellate on this diate court of the law in on the date the was effect rely discerning we that court in Tex- must on 4,§ Tex. Laws entered into ...1999 Gen. Co., v. Am. Tel. & Tel. as law. See West added). Leg., (emphasis 76th Ch. 725 FÉC 223, 237, S.Ct. U.S. L.Ed. 1996; acquired Champion dealership (1940) (holding appel- state intermediate to the thus the 1999 amendments Texas judgment of law is datum late court’s on rule application Equipment Act have no to its ascertaining state law and should not be for Agreement. disregarded by federal court unless it is con- Texas, by persuasive highest court vinced data that Supreme 23. The Court of the court otherwise). authority would decide possessing all Texas civil of state the final ” Opinion at 552. Agreement. than the Dealer Agreement,’ rather ‘Representative addition, receipt of collateral services products. Id. at of Fisher’s quality Volvo, not an by Champion to FEC was ruling provided the district 138-39. Agreement. The objective the Fisher decision of the Dealer court concluded materi- Champion provided there is no services controlling because collateral was advice, arrangement сata- between the Dealers included sales al distinction manuals, booklets, arrangement between FEC logues, Fisher and the instruction complaint FEC’s agree. Agree- advertising signs, and Volvo.24 We and the Dealer right to intangible is based on its asserted all provided ment demonstration dealer, quality not the Champion by Champion “re- equipment furnished Opinion at 552. Motor Graders. Champion Champion.” FEC property main[s] § 14. These collateral Agreement that, under the Texas FEC maintains were, therefore, merely incidental services Co. v. Hendricks decision Texas Cookie objective an authorized being to FEC’s Peralta, (Tex.App.1988), & 747 S.W.2d dealer, Champion properly and the court protected by it nonetheless a consumer is was not a consumer determined FEC Cookie, a DTPA. Under Texas the Texas such, Opinion DTPA. at 552. As under the intangible right an possessing business to a claim under the FEC unable assert (i.e., the con- analogous to that Fisher DTPA, and we need not reach the issue to a dealer of a manufactur- right tract DTPA constitutes a funda- whether the area) geographic goods in a certain er’s policy of Texas. mental (1) under the DTPA if may be a consumer intangible purchased the business (3) (2) right, and the business’s decision motivated, part, was purchase right Next, we whether Clark or CLM assess collateral services by its desire obtain can a claim under the Arkansas Act state Fisher, agreement. under the dealer Act, In the respectively. or the Louisiana Cookie, (citing at 139 Tex. S.W.2d court, district Volvo maintained Clark 876-77). at S.W.2d by the Arkansas Act protected was not protected by not not a consumer under and that CLM was FEC is because, DTPA, however, pursuant Act to the because FEC did not Louisiana Provision, intangible right to be a Cham- Choice-of-Law Clark’s purchase dealer, pro- governed CLM’s Dealer pion and the collateral services not, by law. Agreement the Dealer were South Carolina Volvo did vided under however, ques- assert that the statutes in merely agreement. incidental to the See terms, tion, by apply their fail to to Clark’s (concluding id. because collateral ser- Agreements. under contact were or CLM’s Dealer Absent the provided vices ACI Provision, could transaction rather than its Choice-of-Law Clark incidental to objective, not consumer under state a claim under the Arkansas ACI was DTPA). observеd, the district court CLM could state a claim under the Louisi- As allege paid not that it for an ana Act. We must therefore decide wheth- FEC does statute embodies a fundamental intangible right to continue to be Cham- er either dealer, pion payment policy. and no is reflected state Agreement § dealer in Fisher 21. And like the valves and 24. Under both the Fisher, provided Agreement, relationship to ACI Cham- and FEC's Dealer instruments pion at and dealer was Motor Graders were sold FEC between the manufacturer 9.1, §§ prices net for resale. Id. 12.4. that of vendor and vendee. FEC Dealer dealer policy c. sion constitutes a fundamental of a Pump state. Cherokee & Inc. v. Equip. Restatement, the Second Under (5th Pump, Aurora Cir. not honor a choice-of- North Carolina will 1994) (“The law of a public state and its if of the chosen state provision the law law policy necessarily synonymous. are not policy of a contrary to the fundamental every legislature Not law enacted in the possessing greater interest state ‘public policy’ embodies (the than the chosen state “Funda issue state.”).25 test). Servs., Policy” See Cable Tel mental (quoting 187 and 574 S.E.2d 33-34 incorporated it has been into noting that assessing whether a dealer law). common Pursuant North Carolina protection expresses statute fun state’s thereto, Provi unless the Choice-of-Law policy, guided by damental we are lan in either Clark’s or CLM’s Dealer sion statute, guage of the relevant court deci satisfies the Fundamental Poli Agreement sions, pertinent legislative history.26 test, deprive or CLM cy does Clark here, we are aided several particular Act or protection under the Arkansas recent decisions of our sister circuits re Act, respectively. the Louisiana garding similar controversies. See Cro and maintain regard, In this Clark CLM meens, 376, 2003 WL 22519825 termination of their Dealer Volvo’s (determining that Maine franchise statute without cause contravenes strong public policy against con evidenced policies. specifi- state More fundamental law, violating tracts franchise and that cally, they contend that the law selected protection may under such statute not be under the Choice-of-Law Provision is con- waived); Wright-Moore Corp. v. Ricoh trary to the Arkansas Act and the Louisi- (7th Cir.1990) (deter Corp., 908 F.2d 128 ana that these constitute fun- statutеs mining that Indiana franchise law ex policy, damental state and that the Choice- pressed policy, pro fundamental and that of-Law Provision therefore fails the Fun- may tection under Indiana franchise law Policy damental test. waived); Computer Sys., not Modern be Inc., Banking Sys., Inc. v. Modern 871 order to determine whether (8th Cir.1989) (en banc) (holding F.2d 734 law selected under the Choice-of-Law Policy protection under Minnesota franchise Provision fails the Fundamental test, may waived because law does not we must first determine whether ei law be embody policy); Act or the Louisiana fundamental Tele-Save ther the Arkansas Co., Merch. v. Consumers Distrib. expresses policy. Act a fundamental state Co. Cir.1987) (6th issue, Ltd., (holding F.2d 1120 addressing begin we with the 814 statutory provi- protection under Ohio business stat- proposition every that not that, assessing every statutory provision expressed 26. We note whether If Act embodies a Arkansas Act or the Louisiana contracting parties policy, state's fundamental policy, state we would be bound fundamental apply would be entitled to the law of another by any precedent or relevant of the Arkansas only state under the Second Restatement none, courts. Because there is and Louisiana law of the chosen state was the when the heretofore ad- because our Court has not that of the state the contract same as where issue, such an we are constrained dressed Inc., Pump Equip. was made. Cherokee & of our sister circuits examine the decisions (characterizing proposition F.3d at 252 such protec- addressing dealer these and similar "ridiculous”). as tion statutes. 212 Ark. County, does because statute waived ute Woodruff Jeffries (1947) that, (observing policy). 205 S.W.2d embody fundamental Arkansas, policy is determined public Seventh, Sixth, Eighth Circuits statutes, constitution, by examining issues, of similar have, analyses in their decisions). also focus on We will protection state dealer on whether focused history indicating whether any legislative provisions. anti-waiver statutes contain embody Act was intended to the Arkansas provi such a Act contains The Arkansas Arkansas. See policy a fundamental sion, maintains that its inclusion and Clark Cromeens, 376, 389; F.3d see also Act constitutes that the Arkansas reflects Co., Ark. v. Atl. Cas. Ins. Jordan Arkansas.27 In policy of a fundamental (2001) (observing 40 S.W.3d proposition, Clark relies esрousing this Arkansas, public policy determination decision on the Seventh Circuit’s primarily exclusively legislature, lies almost with There, the court held Wright-Moore. interfere with that and courts should not contain an Indiana franchise statute error). Be palpable determination absent provision constituted ing an anti-waiver Act does not have an barred cause the Louisiana of Indiana and policy fundamental must, seeking opting provision, from out anti-waiver we contracting directly through waiv the Act was intend protection “whether to determine whether indirectly through choice Lou provisions embody policy er a fundamental ed Wright-Moore, 908 F.2d at 132. isiana, of law.” and on provisions focus on its Eight Circuits have ob As the Sixth court decisions. relevant served, however, presence of a statuto provision does not necessar

ry anti-waiver that a embodies a state’s ily mean statute Act assessing In whether the Louisiana Tele-Save, 814 policy. fundamental See of Louisi- policy constitutes a fundamental 1120; Computer, 871 F.2d F.2d Modern ana, judicial pertinent we look to Louisiana 734. Because the legislative authorities. rule for deter There is no established this Louisiana courts have not addressed policy a is funda mining whether state issue, analysis to the text of our is limited presence the of an anti- Although mental. Pump, 38 F.3d at the statute. Cherokee necessarily provision waiver does (observing that court decisions fail to protection that statute em mean a dealer public show that Louisiana Act reflects policy, provi a fundamental such a bodies Louisiana). the dealer policy of Unlike suggests importance legisla the the sion states, of certain other protection statutes strength ture attached to the statute. The the Louisiana Act does not contain anti- in provisions protec of dealer anti-waiver noth- provision. importantly, waiver More however, statutes, among tion varies the in that it was enacted ing the Act indicates F.2d at Wright-Moore, states. 134. policy of protect to foster or fundamental circuits, Following the lead of our sister Pump, Louisiana. See Cherokee 38 F.3d whether the Arkansas we will determine Act (observing at 253 that Louisiana fails policy by fundamental first expresses Act “strongly to indicate that held belief’ of assessing strength the its anti-waiver “public poliсy” being of Louisiana was fos- Wright-Moore, 908 F.2d at provision. See enactment). 738; In 134; protected by tered or its Computer, Modern 871 F.2d 1122-23; Tele-Save, legislature regard, F.2d at see also the Louisiana Act, provision. anti-waiver the Arkansas the Louisiana Act does not contain an 27. Unlike 4-72-206(1). Although § significance of a Code the inclu- clearly understood the in Ar- provision sion of an anti-waiver the indicating that stat- statutory provision importance kansas Act is indicative of the policy. state For important represents ute legislature the Arkansas Indem- attached the in the Louisiana Oilfield example, statute, nothing in Act, provision intent we see the legislature the indicated its nity in- legislature itself indicate against null and void and “to declare embody tended the Act to the state’s fun- state Louisiana public policy of policy. damental re- any agreement which provision indemnification, for quires defense and/or recently Circuit addressed Seventh bodily injury persons, where death or Cromeens, a similar situation in in which it ... negligence part or fault on the there is analyzed provision of the anti-waiver ” La.Rev.Stat. indemnitee.... Equip- Maine Franchise Law Power added). pro- No such (emphasis 9:2780 (10 ment, Machinery Appliances Act. vision is found the Louisiana seq.; M.R.S.A. et the “Maine provi- Law”).28 of an anti-waiver the absence provision Like the anti-waiver statute, being and there no sion Act, the Arkansas nothing there was that the Louisiana Act legislative finding provision anti-waiver of the Maine much a fun- important, constitutes an less in- legislature Law to indicate damental, policy, agree we with the state embody tended the statute to fundamental that the Act cannot override Fifth Circuit As the court policy. observed Cro- provision preclud- a choice-of-law contract meens, however, a legislature simplifies Pump, ing application. Cherokee determining the task whether state body at 252. Because the of law F.3d policy statute embodies fundamental when in CLM’s Choice-of-Law Provi- selected expressly states that the statute consti- Policy not fail the Fundamental Cromeens, sion does policy. tutes such test, law, than the Louisiana Cromeens, rather Seventh Cir- governs obligations parties. legislature cuit Maine discovered “exceedingly had rendered the court’s task by including in the Law a easy” Maine Policy.” Id. The

Finally, wе turn to the issue of section entitled “Public Policy” of the Maine Law Act a fun “Public section whether the Arkansas embodies activity ... provides Arkan that contract or policy “[a] damental of Arkansas. The in pursuant to a contract vio- courts have not addressed this issue. undertaken sas therefore, chapter against this is deemed analysis, by exam lation of begin We our public policy Act. That and is void and unenforcea- ining the text of the Arkansas Act, § Act, Relying an 10 M.R.S.A. 1368. on unlike the Louisiana contains ble.” section, the court held that the Maine provision, provides which anti-waiver strong public policy a “require a a franchisee Law “evidences franchisor contracts that violate the franchise entering against time of into a franchise the that,because Maine generally,” to a ... waiver ... law agreement to assent policy expressed strong public from has a any person would relieve liabil which against allowing provisions Ark. choice-of-law ity Arkansas imposed [the Act].” dealer, pro- notwithstanding or provision ... the terms 28. to the anti-waiver of Pursuant Law, a manufac- the Maine turer, it is unlawful for a 10 M.R.S.A. visions of waiver....” cause, good cancel ... a 1363(3)(B). "[t]o without relationship franchise with distributor T—I O statute, Emergency in Clause. franchisees Act is revealed prevail

to over the Bottling Paragould Dr. protection Pepper under the Co. could not waive (Ark.1992). Frantz, 37, Cromeens, 842 S.W.2d Maine Law. sum, Policy” provision of like the “Public determining whether the Arkansas Law, Emergency the Clause of the Maine policy of Ar- Act embodies a fundamental compelling Act constitutes a the Arkansas kansas, analysis like we will conduct policy. statement of Arkansas that utilized the Cromeens court. As circumstances, anti-waiver ob- In these the Supreme the Court of Arkansas has served, provision is of the Arkansas considered “public policy [of Arkansas] the conjunction made Assembly.” with the declarations declared the General W. Branch, Clause, Co., renders the ter- Emergency Inc. v. 332 Ark. the World Ins. (Ark.1998). agreement, mination of a dealer absent And 965 S.W.2d cause, the fundamental good a violation of legislature, Arkansas in the Arkansas the (the policy of Arkansas. And Arkansas has emergency “Emergency Act’s clause materially greater interest than South Clause”), analogous provision included determining a dealer Carolinа whether Policy” “Public section of the Maine the an Arkansas dealer Clause, between legis- Emergency Law.29In the the an out-of-state manufacturer can be that cancellation expressly lature declared Thus, under Arkansas, terminated without cause. agreements of franchise ab- test, Policy Clark’s Deal- cause, Fundamental “vitally affect[ing] good sent was Agreement governed by the Arkansas er ... Ark. public welfare.” 1977 Acts Act. therefore assess whether We must specifically, 13. More the Emer- Dealer franchisors, Volvo’s termination Clark’s gency Clause asserted permissible under the Ar- Agreement was prej- good great “without cause and Act. kansas and harm of the udice citizens State Arkansas, cancelling] existing [were] d. agreements.” franchise And it declared legislature had enacted the Ar- maintains even if Volvo prevent Agreement governed by kansas Act to the cancellation of Dealer Clark’s Act, it Act agreements good such franchise without the Arkansas did not violate the cause, preserve Agreement was termi “public order because health, peace, safety” good specifically, of its citizens. nated for cause. More Importantly, Supreme legitimate Court of Arkan- Volvo contends that its business objective recognized Emergency consolidating sas has its network of legislature motor-grader good Clause shows that “de- dealers satisfies the In signed protec- for the cause standard of the Arkansas Act. [Arkansas Act] deed, in public,” controversy, tion of the and it has acknowl- the Cromeens AB Volvo, AB, edged purpose the of the Arkansas Volvo Excavators and Volvo requirements enacting upon separate 29. The an emer- vote roll call in favor of the gency explained going operation, clause in Arkansas are measure into immediate emergency Amendment to the Arkansas Constitution: shall become such measure effec- delay. tive without necessary preservation If it shall be for the Const, interpreting Ark. amend. 7. In an Arkan public peace, safety the health and that a statute, may emergency sas courts look to the delay, measure shall become effective without Quin section, legislative necessity clause to determine intent. such be shall stated in one Pittman, upon yea nay ney S.W.2d and if and vote two-thirds of 320 Ark. (1995). all ... members elected to each house shall Act, Equipment (collectively, possess good Volvo did not cause for Construction NV Volvo”) terminating Agreement. its Dealer argument “AB made a similar Volvo, AB Circuit. And like the Seventh circumstances, genuine In these factu- here, it possessed maintained that Volvo al dispute pos- exists as to whether Volvo good cause to terminate its dealers be- cause, good sessed under the Arkansas cause it had withdrawn from the market Act, to terminate Clark’s Dealer Agree- heavy equipment the sold those dealers. ment. therefore We remand Clark’s statu- Cromeens, F.3d (in tory claim Litigation) the Arkansas (in statutory counterclaim the North appeal, In this Volvo maintains it Litigation) Carolina for the district court’s possessed good cause to terminate Clark’s whether, pursuant assessment of to the Agreement Dealer because withdrew Arkansas Volvo terminated Clark’s Champion Motor Graders from the Agreement good without cause. that, al- acknowledges market. Volvo though the Maine Law assessed in Cro- IV. meens provided good cause “[t]here of a when [for franchise] termination foregoing, Pursuant to the we affirm the production manufacturer discontinues except statutory district court as to Clark’s goods,” distribution of the franchise 10 claim in the Litigation Arkansas and its 1363(3)(C)(4), M.R.S.A. Arkansas statutory counterclaim in the North Car- provision. Act contains no such Volvo Litigation. olina vacate judgment We maintains, however, that circumstances only, on those claims two and we remand Ar- other than those enumerated proceedings may for such further as cause, may good Act and appropriate. kansas constitute

it contends that a market withdrawal PART, AFFIRMED IN IN VACATED such a circumstance. PART, AND REMANDED

Clark, hand, that, on the other asserts WIDENER, Judge, concurring Circuit may if good even the list of what constitute dissenting: cause under the Arkansas Act is not ex- part respectfully I concur in dissent haustive, if and even a market withdrawal part. good constitute cause for a franchise I agree with result reached termination, Volvo did not fact withdraw majority except the treatment of CLM’s Champion Motor Graders from the claim under the Louisiana Act and the market. Clark contends because the Equipment Company claim of Future ‍‌​​​​​‌​‌‌‌​‌‌​​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​‍un- graders currently motor manufactured Deceptive Trade Practices der the Texas significantly reengi- Volvo have not been my opinion, Act. In and Consumer neered, Champi- has not withdrawn Volvo district court as to those decision of the on Motor Graders from the market. More vacated, and to them claims should be as specifically, Clark maintains that Volvo has remanded to the district court should be simply Champion rebranded Motor for further consideration. selling and that it is them as Graders And, Clark, graders. according Volvo I. a mar- rebranding such does not constitute contends, key provision ket withdrawal. Clark there- in CLM’s dealer The fore, agreement that even if a market withdrawal with Volvo is the Local Law Provision, or 30 of the dealer good constitute cause under the Arkansas section The dealer must be the business pro- Law Provision 3. The Local agreement. distributing, retailing. or selling, as follows: vides must be in the business of agent 4. The parties obligations and of the rights The wholesaling, manufacturing, or dis- subject applicable to all shall be hereto tributing. directions, orders, laws, re- regulations, (personal) tangible 5. The movable governments limitations of strictions and agrees to property that the dealer having juris- governmental agencies and sell, distribute, and that the or retail In the parties over the hereto. diction wholesale, agrees to manufac- agent law, order, regulation, event ture, pertain to or distribute must limitation, direction, ap- restriction or only: industries one or more of five thereof interpretation ... or propriation (3) (1) (2) construction; farming; shall, party judgment in the of either handling; heavy industrial material hereto, substantially relation- alter the (4) (5) utility; garden. or lawn under this parties ship between tangible 6. The movables that are the advantages or the derived Agreement objects dealership contract party may relationship, from such either following more of the must be one or party modify hereto to request the other (1) (2) types: equipment; engines; (15) If, Agreement. within fifteen (3) (4) machinery; or implements; making such re- days subsequent (5) attachments. hereto are unable to quest, mutually satisfactory modi- agree upon types In or type 7. addition to the hereof, adversely af- objects fication then the equipment contract, party may Agree- dealership terminate this the dealer fected (15) sell, days’ agree notice to the must also distribute оr ment on fifteen retail, agent agree and the must also party. other manufacture, wholesale, or dis- Ann. La.Rev.Stat. Louisiana repair parts equip- tribute for such (West 2003), §§ to the applies 51:481-82 ment. agreement. dealer Lake CLM-Volvo contract, dealership the deal- Diesel, Inc. v. Motors Charles General agree er must to maintain an inven- (5th Cir.2003), the Corp., 328 F.3d 192 tory following: of one or more of the neces- explained prerequisites (1) subject repair parts Act to For sary apply. for the Louisiana (2) movables; tangible tangi- or case, Act to in this apply the Louisiana (3) themselves; movables or at- ble following present: each of must be tachments. agreement, 1. A contract or written Diesel, Lake Charles 328 F.3d at 200. The oral; agreement CLM-Volvo dealer fulfills all of (1) a prerequisites. 2. The contract must be between these Because the dealer dealer,1 prerequisites fulfills all of the agent.2 "any to mean distributor La.Rev.Stat. Ann. 1. A dealer is defined statute dealer.” 51:481(B)(3) (West 2003). dealer, heavy equipment farm industrial deal- er, dealer, equipment material construction agent "any 2. An is defined statute to mean dealer, handling equipment utility equipment manufacturer, wholesaler or wholesale dis- dealer, dealer, engines equipment lawn 51:481(B)(4) tributor.” La.Rev.Stat. Ann. garden equipment equipment dealer or retail (West 2003). 482(A)(i), subject § Die- to the court in Lake Charles Volvo was- and im- outlined enactment, sel, mediately of Title 51 upon sections and until the substantive partic- agreement. the dealer either CLM or -Volvocould have asked for apply to ular, applicable. § Section agreement. a of the>-.dealer modification 482(A)(1) that: provides The reason that not CLM did seek such a modification is at apparent; an or once under agent, directly through officer-

[n]o terminate, cancel, agreement, fail the dealer if there had been no employee, renew, law, substantially change' applicable agreement the local the or could to of a dealer- been competitive circumstances have terminated under the Without good or contract without ship agreement Agree- Cause Provision of CLM Dealer dealer, § agree- cause. ment 24. At the time the signed party ment was neither had (West 2003). § Ann. 51:482 La.Rev.Stat. any to cause seek a The modifiсation. § Accordingly, applicable 482 is an law § passage of 482 1991 modified the deal- Local Law Provision of the deal- under the agreement. er CLM had no cause for agreement. er concern, however, because it a derived majority’s interpretation of Under the Volvo, § benefit from 482. it admits as Provision, ap- § 482 is not the Local Law majority opinion, and as the in its 614 (6th Cir.1977)). 1107, majority 1110 provi- of this construction

respect to the which, meaningless the contrac- contract, by literal decision renders sion of Indeed, in the Local Law Provision language tual terms, party.” to “either applies obligations par- of the rights that “the construction and reasonable logical more subject applicable ... to all ties shall be in the absence of is that of the contract literal local laws.” party,” the the other “request [of] as writ- should stand of the contract terms Steamship London Pro- Liverpool & and unaltered. ten Association, Indemnity Ltd. v. tection & CLM, reasoning, majority’s Under MV, QUEEN OF LEMAN F.3d 482, § must benefiting from party as the (5th Cir.2002), a contract the court faced of a to the existence call Volvo’s attention to the one question construction similar pur- for the CLM provision that benefits the Local Law facing regarding this court relationship to the altering the pose of Provision and Choice of Law Provision the benefit of CLM loses point where Liverpool & Lon- agreement. the dealer na- from human departure § 482. Such Indemnity & Steamship don Protection contract construc- ture not a reasonable L) (L Ltd., Association, protec- & provided tion, suggest. I indemnity insurance to the own- tion and QUEEN LE- operators of the OF ers II. The insurance MAN. 296 F.3d at 351. Provision, of Law section 30 The Local contract between the contained is reconcilable with agreement, the dealer that affected the choice of provisions four Provision section 29. the Choice of Law First, govern the contract. law would 1991, to the Louisiana example, prior For L L the contract stated that & Rule § not enacted 482. As a legislature had ships to ‘a on the of a “is entitled lien result, triggered applica- law no local any unpaid premiums.” Sec- member’ for Local Law Provision. Had tion of the ond, “disputes 47 stated that are to Rule dispute prior a contract there been ‘by arbitration or be resolvеd either ” 1991, governed have been would Third, English High Court Justice.’ passage After the South Carolina law. that: Rule 47C stated governed contract is still [n]othing prejudice herein shall affect or law, as except Carolina South ac- right of the Association take law, applies local as well. applicable proceedings in tion commence and/or Yet, majority’s interpretation under the any jurisdiction right to enforce its contract, the Local Law Provision ships lien on or to otherwise obtain secu- violating the “univer- surplusage, would be seizure, rity by attachment or arrest of construing sal law of contract law amounts owed to the As- assets contract, interpretation in a ‘an language sociation. to all gives meaning a reasonable Finally, provided Rule 48 preferred of the contract will be parts any special terms of portions of the contract rules and [t]hese one that leaves ” be- entry v. form a contract of insurance meaningless.’ Island Creek Coal Co. (4th member, Shore, Inc., and a tween the Association Lake 832 F.2d Cir.1987) subject right to the of the Associa- (quoting v. John- United States Controls, Inc., right tion under Rule 47C to enforce its 713 F.2d son (Fed.Cir.1983); any jurisdiction in accordance Inv. of lien see also Union Co. Md., jurisdiction, in such a shall with local law Fidelity Deposit & Co. of court that the “reference to local English suade the in accordance with be construed in Rules 47C and 48 is limited to the law law. aspects enforcing liens.” procedural L&L, at 353. 296 F.3d See argument went that the substantive The in the East- complaint L filed a L & may issue of lien to which L&L to seize the of Louisiana District ern law, L governed by English entitled is but insur- unpaid LEMAN for QUEEN OF relying & L enforce the lien on The F.3d at 351. 296 premiums. ance at procedural local law. 296 F.3d 353. and the granted request, the district court disagreed. If the choice of The court for and later sold vessel was arrested lien, controlled the maritime provision law $512,000.00. at 351. The funds 296 F.3d L provision authorizing then the in Rule 40 placed were sale of the vessel from the & L to secure a maritime lien would have court. Two registry of the district the meaningless because En- been rendered cargo the vessel’s one who insured parties, glish recognize law did not maritime lien. cargo, the vessel’s one who owned explained at The court 296 F.3d 353. proceeds seeking to recover intervened English law controls and there is no [i]f argued sale. The intervenors from the unpaid pre- maritime lien for insurance for the contract called that the insurance miums, then L&L would have little law, L under which English application provisions, need for enforcement as no maritime lien. 296 & could L not obtain a right would exist to be enforced.... judge agreed, at The district F.3d 351. agree with L&L that in We therefore summary judgment favor of granted give meaning to the entire con- order to intervenors, appealed L&L to tract, the determination of whether at 351-52. Fifth 296 F.3d Circuit. place maritime lien exists the first “that En- agreed appeal, On be determined United States should governs the contract.” glish generally law law. They agreed at also ‍‌​​​​​‌​‌‌‌​‌‌​​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​‍296 F.3d re- at 353-54. The court thus 296 F.3d enforcing a lien was procedure grant- the district court’s decision versed jurisdiction in by the law of the governed summary intervenors’ motion for ing the enforced, in being this which the lien was 296 F.3d at 355. judgment. parties disa- States. The case United Local Law Provision the dealer The law, as the English whether greed over By con- agreement is similar to Rule 47C. governs generally, the contract law to allow the Choice of struing the contract whether a maritime lien also determines provision another trump Provision to Law noted, disagree- the court exists. As contract, majority path follows a in the “significant because even L&L ment is rejected it that the L&L because un- have no maritime lien admits would meaning to the entire con- give would law.” 296 F.3d at 352. English der L&L, 296 F.3d 353-54. tract. See contrast, the federal Maritime Commercial can be the Local Law Provision Because Act, and Liens 46 U.S.C. Instruments of Law Provi- reconciled with Choice 31341-31343, lien §§ makes a maritime sion, pur- should allow CLM this court provides who neces- party available for a applicable under rights sue its saries, marine insurance which includes local law. Circuit, 296 F.3d at the Fifth to vessel. be con- Samp- agreement should (citing Equilease Corp. The dealer M/V Cir.1986) (en son, (5th provisions. to all of its give effect strued Co., v. T.E. Cuttino Constr. banc)). See Osteen sought per- The intervenors (1993). place that another of en- the contract S.E.2d S.C. intended, loci con- gives no effect to forcement was the lex interpretation majority’s my opinion, governs. tractu If the contract be silent Provision. the Local Law thereabout, presumption is that the protection to the CLM is entitled enforcement is the governing and CLM’s claims and law Lоuisiana Act contract place under the Louisiana law of the where the counterclaims the district court. made. should be remanded-to in into a parties entering “The act of the III. in particular place, contract at a remand, the district should On con- anything absence of shown to the law and Louisiana have South Carolina sufficiently inten- trary, indicates their interpreting governing Act law as . to tion to contract with reference agreement. The dealer the CLM-Volvo place; hence the rule as it laws of enforce the Louisiana district court should usually is that a contract as to its stated Act unless there is a rule North Car- validity interpretation governed and is prevents the district court from olina made, by place the law of where it is the. enforcing the Louisiana and no such contractu; the lex loci or more accurate- pur brought attention. rule has been ly, governed that contracts are to be as Louisiana Act be

Accordingly, the should nature, validity interpreta- to their on the by enforced the district court basis by place they tion the law of the where of the Local Law Provision. made, contracting parties unless majority that the CLM The concluded clearly to have had appear some other ac dealer is be construed C.J., place view.” 13 Maj. Op. law. cording to South Carolina at 345. 180 S.E. majority reached this decision at 601. The Livingston, the South Carolina Su- North choice of law applying Carolina’s explained that preme Court' South Car- rules, provi which enforce choice of law parties olina law allows choose the law 601; Maj. Op. sions in contracts. see they want to use to enforce their Co., also Bueltel v. Lumber Mut. Ins. 134 Spring Corp., contract. See Associated (1999). 205, 626, N.C.App. 518 S.E.2d 209 F.Supp. (noting 410 at 975 that this view is law, retaining the South Carolina while “widely-held generally conformity and is contractus,3 recognizes also rule of lex loci (Second) with that of the Restatement juris right to choose another (1971)”). § of Laws 187 Conflict Under contract. diction’s law to Asso govern (Second) the Restatement of Conflict of Wilson, Corp. F.Supp. ciated v. 410 Spring 187(2), Laws South Carolina law will (D.S.C.1976). 967, 975 The Associated govern the contract unless the Corp. following court relied on the Spring language Carolina Su from South application of the of the сhosen state law preme opinion Livingston v. Court’s poli- would to a fundamental contrary Co., 385, Atlantic Line R. 176 Coast S.C. cy materially of a state which has a (1935): S.E. greater interest than the chosen state particular It fundamental that unless there be the determination of the issue in, of, which, 188, something intrinsic or extrinsic under the rule of 1171, (D.S.C.1993) F.Supp. (citing 3. The rule of lex loci contractus means "the Liv- Co., place ingston v. law of the where the contract is made Atlantic Coast Line R. 176 S.C. Heuer, (1935)). governs Joye contract.” 180 S.E. state, legisla- a law of the and is a law state is applicable the state would be function, judicial and not a choice of tive an effective in the absence judiciary the function of the to declare parties. law the public policy is the of the state re- what to remand CLM’s majority refuses The legislature matters on which the specting the Louisi under claims and counterclaims ”). ... spoken has ground court on the ana Act to the district Supreme espe- Court of Louisiana Act does not constitute the Louisiana cially expressed opinion has as to Maj. Louisiana. policy of a fundamental express public policy statutes whether reason my opinion, Op. at 607-08. involving in a a state of Louisiana case only overly-and hyper-technical, ing is not Sugar v. American antitrust law. State A en fundamentally wrong. statute it is Co., 138 La. 71 So. Refining establishes the legislature a state acted (1916). 142-143 that See Bibb v. policy of State. public public policy ... the of a state is to be Lines, Inc., 520, 359 U.S. Navajo Freight statutes, and, they found its when (1959) 962, 524, L.Ed.2d 1003 79 3 S.Ct. directly spoken, then in the have not legisla state are for the (“Policy decisions But, of the courts. when the decisions entry into the ture, federal absent subject speaks upon upon Legislature field.”);Barnes Group, Inc. v. C & C power it has the constitutional to which (4th Inc., 1023, Prods., 1031 Cir. 716 F.2d legislate, public policy is what the stat- 1983) (“[I]t apparent that where the seems to passed by public policy it enacts utes would make by parties the law chosen only authentic and admissible be. unenforceable flatly a contract enforceable policy of a state on public evidence of law would otherwise in the state whose Constitutions, subject are its given provision to honor the choice-of-law apply, laws, public judicial decisions. The that state’s ‘fundamen upon trench would state, of a of which courts take policy ”). policy.’ tal effect, they give must notice and which in the Fourth Circuit Every state court from those sources. Where be decided legislature as recognized the state has also through legisla- spoken the state has pronouncements of definitive voice on the tors, speculation no room for as there is Schmeizl, v. See Schmeizl public policy. the state is. policy to the of what (1946) (“The 619, 371, 46 A.2d 621 186 Md. So, beyond argument my opinion, is contrary adopt public policy court cannot of Louisiana is policy the fundamental that statute.”); plain provisions expressed in 51:482. Membership Corp. Pitt & Greene Electric Co., 51:482, cancellation of barring Light 255 N.C. Section Power & v. Carolina (1961) (“[PJublic cause, by was enacted 749, contract without 258, 120 754 S.E.2d determination.”); In this legislature. state the Louisiana legislative for policy is 299, circuit, appearing, else we must Drake, nothing 275 270 S.E.2d Brown v. S.C. fundamental (1980) (“Public that statute as the basically accept 130, policy is 132 Hall v. policy of Louisiana. See public v. Board legislature”); for the Wood of (4th McKenzie, 1232, 1234 Cir. 537 F.2d City, 236 Va. Supervisors of Halifax (“[I]t 1976)(“[T]he legislative determination is the S.E.2d Virginia is policy for the State West legislature, not the responsibility of the us.”); Fire & not St. Paul that state and public policy.”); formulate judiciary, Jacobson, 48 F.3d 778 Marine Ins. Co. Varney, 142 96 S.E.2d State v. W.Va. (“[W]e (4th Cir.1995) attempt (1956) (“... will of a public policy Sugar, of did not mention American so the policy of the State public decide the omission, majority artic- here does not. Such a clear and dominant Virginia absent court, the Common- the Fifth Circuit and this policy that both ulation of herself.”)- I By concluding reasoning, suggest. flawed wealth not constitute a funda- Act does Louisiana enough, and of even If that were not Louisiana, majority policy mental of Barnes importance, more the case determination making its own Prods., Inc., Group, Inc. v. 716 F.2d C & C statute, not ex- as a does Louisiana (4th Cir.1983), is on facts which are public policy of press the fundamental hand, and, at indistinguishable from those court cannot determine Louisiana. Our question, on the same determines Louisiana, if even public policy where the law chosen would willing to do so. See St. Fifth Circuit is flatly make enforceable a contract unen- Marine, Paul Fire & 48 F.3d 783. C.f. in the whose law would forceable State Inc. v. Au- Pump Equipment, Cherokee & apply, provi- otherwise “the choice of law (5th 246, 252-53 Cir. Pump, rora upon sion would trench that State’s ‘funda- ” 1994). Instead, state statute the Louisiana mental at 1031. policy.’ F.2d public must viewed as the fundamental Barnes, Group Banes was a case which policy of State. C, plaintiff, alleged that & the defen- C dant, had interfered with Barnes’ contracts the Fifth Circuit have Whatever agents. with six of Barnes’ sales Barnes decided, a au- Pump Cherokee is flawed company, was an Ohio and its contracts to rest our decision. thority on which agents provided they with its should recites, Pump Cherokee in be construed accordance with the laws evidencing law that “There is no case of the State of Ohio. Three of the sales- Repurchase amendment es- Statute men, however, Alabama, from were and pouses public policy Along Louisiana.” exclusively their territories were in Ala- line, majority in this case the same bama. The contract of employment, which recites that “The Louisiana courts have compete, included a covenant not to issue,” was referring to not addressed this against public void Ala- policy as under whether the Louisiana statute is a funda- and bama law could not be enforced. The policy Although mental of Louisiana. Co., holding of this court was: Sugar Refining State v. American La. has in full So. been To honor the contractual of choice law in that for force and virtue State some 88 flatly make a contract would enforceable years and not been modified or over- has Alabama, surely im- unenforceable ruled, both the Fifth Circuit and the ma- pinging upon policy” “fundamental jority persist reasoning here in their error, therefore, Alabama. It was for subject has not been addressed apply the district court to law to Ohio repeat, To Louisiana courts. American enforceability determine the of the Ala- Sugar stated: bama salesmen’s covenants not to com-

But, pete. Legislature speaks upon when the subject upon which has the constitu- at 1032. Applying F.2d the facts of power legislate, public policy tional holdings Group, this case to the of Barnes passed by what the statutes it enacts parties, the law chosen South Car- public policy to be. olina, permit provision would contractual notice, certainly at 142. That So. should еnd cancellation to be without discussion, just make Pump but as Cherokee would enforceable Louisiana of the Louisiana position in Louisi- a stand as the “flatly unenforceable” contract 51:482, Sugar in American that statutes re- the law of that State. ana under Group policy is that such flect the fundamental of Louisiana. holding of Barnes my clearly implicit holding “trench provision opinion, would a choice-of-law ” majority, that a without an policy.’ ‘fundamental of the statute upon [Louisiana’s] impinging provision And the anti-waiver is not the fundamen- 716 F.2d at 1031. Louisiana, State, policy clearly wrong. error tal of a policy fundamental there, the statute of means here as

Louisiana, 51:482, applied. must be IV. in which the dealer- Louisiana is the State I that the claim of opinion am further located, major- and which even the ship is Company, Inc. under Equipment Future in- agrees greater had a ity this case Practices and Deceptive the Texas Trade of South terest than the chosen State Protection Vernon’s Texas Consumer Carolina. 17.41, Ann., II, § Title Statutes Codes 187(b) §of Restate- Applying the rule re-examined on the mer- seq., et should be (Second) of Laws to this ment Conflict its. Louisiana Act case indicates that “judgment a result of a on This case is of the “application for if the apply, should A.486, not on pleadings,” based contrary chosen state would be law of the affidavits, etc., a factual depositions, devel- of a state which policy to a fundamental opment, as is the more usual case. materially greater interest than the has a purposes For the of the court’s consider- chosen state the determination judgment ation of the motion on the [for the law of South Carolina particular issue” factual pleadings], pleaded all of the well just I demonstrat- apply. have should adversary’s pleadings allegations Louisi- policy that the fundamental ed true, all contra- are assumed to be requiring in the statute expressed ana is plead- in the movant’s vening assertions by the contracts not be cancelled such ings are taken to false. It is also manufacturer without cause. Arthur R. Wright 5A Alan & Charles that Louisiana has a materi- beyond doubt Miller, Practice and Procedure Federal ally greater interest than South Carolina (2d. ed.1990) relying on National Met- agree- a dealеr determining whether U.S., 454, 457, Bank v. 323 U.S. ropolitan and an ment a Louisiana dealer between 354, L.Ed. 383 65 S.Ct. terminat- manufacturer can be out-of-state from the federal courts various cases majority just holds without cause. The ed III courts. In Count appeals district dealer,4 relation to the Arkansas that with complaint found of the Arkansas Louisi- apparent why and no reason A.298, following allegation appendix differently on ana dealer should be treated Company: Equipment Future is made essentially the same facts. what are action, to this 53. At all times material in the two statutes is only difference as that was a ‘business consumer’ kind of anti-waiver FEC Arkansas has some Deceptive Texas term is defined majority, but provision mentioned Protec- Consumer opinion of Trade Practices and does not have an even Arkansas (‘DTPA’), Bus. & Com. tion Act Tex. taking nearly strong so Supreme Court out of state manufactur- materially greater kansas dealer and an in- 4. “And Arkansas has Maj. cause.” determining without er can be terminated South Carolina in terest than Op. agreement at 610. between an Ar- whether dealer 17.41, Code, allege paid in that is a cause “FEC does not that it for seq., et FEC sought or corporation intangible right business to continue to be a goods or services acquired champion payment dealer and no is re- and/or lease, goods or ser- purchase or and the agreement,” flected in the dealer there claims. vices formed the basis them dealership would have been no contract to cancel, nothing and this case is more than 17.45(10) that: provides Section lawyers. an exercise for the means an individu- ‘Business Consumer’ al, corporation or who seeks partnership lease, acquires by purchase or

or

goods or services for commercial or in- use. The term does not

business agen-

clude this or a or state subdivision

cy of this state.

So, judgment on the purposes here, pleadings under Rule as we must America, UNITED STATES of consider that FEC is a “business consum- Plaintiff-Appellee, er, corporation acquires by who seeks purchase goods or lease ... or services for commercial or business use.” That is suf- MCHAN, Charles William to qualify Equipment

ficient Future Defendant-Appellant. claim have its examined under the Texas No. 03-7781. Deceptive Trade Practices and Consumer Protection Act under Texas law as found ‍‌​​​​​‌​‌‌‌​‌‌​​‌‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​‌‌​​‌‌​‍United States of Appeals, Court Intern., Gibbons, in Fisher Controls Inc. v. Fourth Circuit. (Tx.App.1995) S.W.2d 135 and Texas Peralta, Cookie Co. v. Hendricks & Oct. 2004. (Tex.App.1988). Briefly, S.W.2d 873 Tex- Argued: Sept. 2004. as Cookie held that the fact that the trans- Decided: Oct. fer “involved the transfer of ‘goods purpose or services’ for Cookie,

DTPA,” Texas S.W.2d

qualified Hendricks for relief under the Deceptive

Texas Trade Practices and Con-

sumer the same statute involved here. say

This is not to that a future factual

development may not add to fa- the facts Equipment

vorable to Future or to the

facts But it favorable Volvo. is clear judgment favor Volvo should pleadings

have been entered on the which necessary facts,

admit and that

case on require remand should examina-

tion and development aspect of that Equipment’s

Future claim. events, majority

In all if holding

correct, Equipment that Future loses be- notes failed to plicable in this case because CLM rights advantages did have its altered agree- dealer request a modification of its passage Maj. Op. § the at 602. 482. plain But the Maj..Op. ment. at 601-02. recognizes impact Since Volvo now the language of the Local Law Provision does objection, § as shown without could request a modification require not CLM § recognized significance 482’s have agreement gain in order to of the dealer time since and did not. § the Local protection the of 482. Under Provision, party, Furthermore, Law either either Volvo the Local Law Provision piodifica- CLM, requested or could have a provided a method for to alter Volvo the believed, judgment” if it “in [its] tion regain any dealer advan- substantially the a local law alter tages, judgment pas- its it lost would relationship par- contractual § between sage majority opinion The holds requested a ties. Neither CLM nor Volvo only of re- CLM bears the burden majority duly notes modification. As the of the dealer questing modification § recognized opinion, noted, Volvo plain I agreement, but as have relationship would alter the between the does language of the Local Law Provision parties: ability two limit to CLM alone the to re- Statutes, Volvo, majority The inter- According quest if modification. State prets the Local Law Provision so effectively nullify would applied, Provision, relationship § substantially while 482 alters the Cause Without because it parties, CLM loses on its claims altering relationship between Cham- Using request did not modification. pion and the Dealers. should, equal logic, majority with same Maj. Despite at 601-02. this realiza- Op. conclusion; that facility, opposite reach the tion, sought never a modification of Volvo relationship § be- because 482 alters the contract. loses because it parties, tween the Volvo legislature The Louisiana state added a modification. request did not 482 to Title 51 1991. See La.Rev. (West 2003). justifi- majority offers no reason Ann. 51:482 Until the Stat. addition, declaring the winner with of this neither CLM nor cation for Volvo time

Case Details

Case Name: Volvo Construction Equipment North America, Inc. v. CLM Equipment Co.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 8, 2004

Citation: 386 F.3d 581

Docket Number: 03-1108

Court Abbreviation: 4th Cir.