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Joseph Cacace offers choice-of-law analysis in news article

Joseph M. Cacace in a Massachusetts Lawyers Weekly news article offered an analysis of the significance of two recent federal appellate decisions negating contractual choice-of-law provisions and allowing unfair trade practice claims to proceed in Massachusetts.

The 1st U.S. Circuit Court of Appeals in one case ruled that a New York choice-of-law provision in a marine insurance policy did not bar a Massachusetts policyholder’s claims for bad-faith settlement practices concerning the wreck of his catamaran.

The court in a separate decision found that a New York choice-of-law clause did not bar a book author’s Massachusetts lawsuit alleging his publisher committed unfair and deceptive business practices by deliberately obfuscating sales figures for his books.

In both cases, the First Circuit concluded that even though the choice-of-law provisions explicitly applied to contractual claims they did not unambiguously bar unfair trade practice lawsuits.

“These cases counsel for very careful drafting of choice-of-law provisions,” Mr. Cacace told the publication. “When you’re drafting a choice-of-law provision, you need to be aware of whether you want the choice of law to only govern interpretation of the contract, or if you want it to more broadly govern all of the relations between the parties.  If the latter, you need to very clear about that in the agreement.”

Mr. Cacace also observed that neither decision fully addressed what language is required for a choice of law provision to cover extracontractual claims, leaving that issue open for resolution in subsequent litigation.  Another open question, according to Mr. Cacace, is whether a broad choice of law provision covering extracontractual claims might be held to violate public policy if enforcing it would preclude claims for unfair and deceptive business practices.

A partner at the firm, Mr. Cacace handles complex civil disputes and appeals of all types – including business litigation, real estate litigation, class actions, civil rights cases, litigation against government agencies and employees, defamation matters raising First Amendment issues, and employment litigation and counseling.