--- On Fri, 9/5/08, Wojtek Sokolowski <swsokolowski at yahoo.com> wrote:
> From: Wojtek Sokolowski <swsokolowski at yahoo.com>
> Subject: [lbo-talk] legal question
> To: "lbo-talk" <lbo-talk at lbo-talk.org>
> Date: Friday, September 5, 2008, 10:54 AM
> Most telecoms have long term contracts for mobile services,
> and charge penalties for early termination (recently a CA
> court ruled those penalties illegal, but I am not sure if
> that ruling would apply to other states.)
Good question. There may be an issue of personal jurisdiction. I don't know CA rules for PJ, but assume for the sake or argument that, as is not unlikely, they reach to the constitutional limits. If so, telecoms that do biz in CA have availed themselves of CA law and there may exist sufficient minimum contacts between foreign (non-CA) telecoms and a CA plaintiff to make it accord with due process to subject the telecom to CA law.
You'd need a CA plaintiff though, or someone in CA using phone service provided by a foreign telecom in CA. A foreign telecom and a foreign P, I don't see how a CA ruling would affect them.
That would go only to whether CA courts have the power to apply CA law to foreign telecoms with cell phone users in CA. There are also choice of law issues.
Every state has rules in cases whether it is questionable which law is applicable to decide what law to apply, e.g., do the parties reside there, did the acts giving rise to the litigation occur there, what state has the most interest, etc. I don't CA choice of law rules, but even a court with jurisdiction would have to decide that a foreign telecom fell under the CA rules to apply CA law to a foreign telecom.
Then there are the regulatory and federalism issues: this looks like a contract case, but telecom is heavily regulated; if by the state. there is an issue about whether CA regs can apply outside AC at all; if by the feds in a relevant way, about whether the CA state decision is pre-empted by controlling federal law.
There are other questions a lawyer representing a party to a contract with a foreign telecom (whether a user or the the telecom itself) would have to address to start to answer this question.
This is why they pay lawyers so much money -- because the government, in part composed of lawyers, makes so many rules that you have to go to law school to even start to figure out how to answer an apparently simple question.
>
> My question is: if a telecom company changes the terms of a
> long term contract before its expiration in a way that
> affects the price (e.g. by reducing the "discout"
> rate it was giving when the contract was signed,) does this
> constitute grounds for early termination of that contract
> without paying early termination fees?
Normally, and without offering legal advice, a lawyer would be likely to say that depends on the contract. Without offering legal advice about a particular situation and speaking only to the general contract principles that apply under the common law in the hypothetical State of Confusion, you'd have to look at the contract. If, as its likely, it provides for the telecom to change the terms of the contract unilaterally, a citizen of the State of Confusion would have an uphill climb to make out a case that such a unilateral rate change was a "material breach" of the sort that offered the basis for early termination. Of course a term in a contract might be illegal, waived, or otherwise unenforceable for some reason or other, and this might be such a term.
To answer an actual question about a real case you'd have to talk to a contract and/or telecom lawyer in your own state, where the events occurred, or maybe in the state where the telecom is the citizen, if the law of that state applied.
Remember, free commentary (not legal advice!!) is worth what you pay for it. Long and short if you want a real answer, get legal advice from a lawyer in the relevant jurisdiction.
>
> Wojtek
>
>
>
>
>
> ___________________________________
> http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk