1. Thursday, June 21, 2012 - 12:58 PMThe clause in question (cited in the article) is really so vague and ambigous as to be worthless. Under settled California law (and, I suspect, most - if not all - states' laws), ambiguities are construed against the drafter, in this case, the Bank. In a worst case scenario for the Bank, under California Civil Code 1717, the clause would morph into a "prevailing party attorneys fees" clause, and the Bank would have to pay the customer's attorneys fees if the customer won. I guess it was a slow news day at the LA Times.
5
Bozo129 posts since
Feb 14, 2011
Rep Points: 860
2. Thursday, June 21, 2012 - 3:09 PMActually, as the story pointed out, the clause may be there more to intimidate any customer from even considering filing a lawsuit as few would have any idea it might not hold up to legal challenge.
But also, it is your interpretation that it is vague. But the court gets to make the interpretation, not you or me. Frankly, the one clause quoted seems pretty clear to me -- and the court might say so too. Still, there are other reasons that possibly could nix the clause.
The various lawyers quoted in the story expressed doubt about whether the clauses could sustain a legal challenge -- none of them for reasons a vagueness -- but not a single one expressed certainty that they could not be upheld.
3
me1004294 posts since
Jan 16, 2010
Rep Points: 1,872
3. Saturday, June 23, 2012 - 3:32 AMI'd be happy to share my thoughts with you either off-line or via PM regarding these types of clauses. Suffice it to say I litigated them and argued them before the CA Court of Appeal. My biggest "victory", so to speak, was against Wells Fargo. Ironically enough, I thought they'd cancel my account and ATM after I beat them. Weirdly enough, I actually got a nice letter from Wells where they thanked me for having some trust or whatever in the legal system. Long story short: it has to do with "general indemnities", vagueness (where the fault of the indemnitor is not specifically addressed), and accompanying ambiguities.
7
Bozo129 posts since
Feb 14, 2011
Rep Points: 860
4. Saturday, June 23, 2012 - 4:13 AMI should note that, as I am retired, I am more into grand-children, naps, and home-made cole slaw than litigation over ambigous indemnity clauses. Bottom line: I doubt folks should worry over these amateurish attempts to dissuade folks.
7
Bozo129 posts since
Feb 14, 2011
Rep Points: 860
