Cuban cigars have, of course, been illegal in the United State since the inception of the Cuban embargo in the 1960s. Yet many cigars are available here with traditionally Cuban brand names. That is because tobacco growers in other parts of the Caribbean, many of them Cuban refugees with Cuban seed, use Cuban brand names when exporting to the United States. For example, the name “Cohiba” belongs to the Cuban government (because the Cuban government expropriated it) except in the United States. A private manufacturer owns the name here.
It seems likely that soon it will be legal for the Cuban government to export its cigars to the United States. When that happens, the Cuban government and the private owners will probably litigate entitlement to the duplicate brand names.
Now Communists abjure the concept of property. The trademark to the duplicate brand names is a form of intellectual property, which is to say property. It will be amusing to see the Cuban government profess in court the primacy of its property rights, especially since it stole those rights to begin with.
A lawyer’s job is to advantage his client where possible. I believe that and have done it to the best of my ability throughout my career. But I learned early on that you are limited in how far you can go. As a young lawyer, I once drafted a proposed purchase agreement that was so transparently and heavily weighted in favor of the buyer (my client) that the seller concluded we were in bad faith and walked away from the deal. I learned from that. You cannot take advocacy so far as to attempt to deny the other side the essential benefits of its bargain.
That lesson came to mind when I read about the Fourth Circuit Court of Appeals case of Hayes v. Delbert Services Corp., which concerned the enforceability of arbitration and governing-law clauses. The contract disclaimed the applicability of any state or federal law, providing instead that disputes would be governed by the laws of the Cheyenne River Sioux Nation. I infer, though the excerpt I’ve read does not say, that the Sioux Nation in question doesn’t have much law on the subject in dispute and that the parties have no connection to that Sioux Nation. Unsurprisingly, the court struck down the offending provisions.
If either of the parties had a meaningful connection to the Sioux Nation, I would expect the choice-of-law provision to be upheld. But it is offensive for a party with superior bargaining power to impose that choice on someone else when neither has such a connection. I have used arbitration clauses and choice-of-law provisions in my agreements, as have most transactional lawyers, but I’ve had better judgment than to try to push things as far as the lawyers did in this case–at least since that early experience I described.
Man in the High Castle is a new series from Amazon exploring what might have happened had the U.S, lost World War II. In the series, Germany controls everything east of the Rockies. Japan controls everything west of the Rockies, and there is a neutral zone in the Rockies themselves.
Andrew Cuomo ordered advertising for the series be removed from the NYC subway system. I am not a First Amendment lawyer, but the order seems questionable to me. It’s certainly unfortunate. I’ve seen the first three episodes of the series, and I’m hooked. You shouldn’t miss it regardless what Andrew Cuomo thinks.
The linked article says that Andrew Cuomo, governor of the State of New York, ordered the NYC subway system to take down the advertising. Assuming that to be true, the government structure of New York must be quite different from that of Texas. Greg Abbott, governor of Texas, could not order VIA Metropolitan Transit (the entity for San Antonio, Texas, corresponding to the New York City subway system) to do anything. The governor might, in limited circumstances, use political influence to get something done, but he lacks the authority to give VIA orders.