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Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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Conference Acts to Promote Random Case Assignment

Published on March 12, 2024

The Judicial Conference of the United States has strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit.

The policy addresses all civil actions that seek to bar or mandate state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief.” In such cases, judges would be assigned through a district-wide random selection process.

“Since 1995, the Judicial Conference has strongly supported the random assignment of cases and the notion that all district judges remain generalists,” said Judge Robert J. Conrad, Jr., secretary of the Conference. “The random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary.”

In most of the nation’s 94 federal district courts, local case assignment plans facilitate the random selection of judges. Some plans assign cases to a judge in the division of the court where the case is filed. In divisions where only a single judge sits, these rules have made it possible for a litigant to pre-select that judge by filing in that division. 

In a November 2021 letter, Senator Thom Tillis (R-N.C.), and Patrick Leahy, a Vermont senator who since has retired, raised concerns about a concentration of patent cases filed in single-judge divisions. 

Chief Justice John G. Roberts, Jr., referenced this letter in his 2021 Year-End Report on the Federal Judiciary , calling for a study of judicial assignment practices in patent cases.

“Senators from both sides of the aisle have expressed concern that case assignment procedures … might, in effect, enable the plaintiff to select a particular judge to hear a case,” Roberts said. During the patent-case study, the Court Administration and Case Management Committee (CACM) determined that similar issues might occur in bankruptcy and other types of civil litigation. Public debate grew when several highly controversial lawsuits, seeking nationwide injunctions against federal government policies, were filed in single-judge court divisions.

In submitting the proposed policy to the Judicial Conference, the CACM Committee said that some local case assignment plans risked creating an appearance of “judge shopping.” The committee also noted that the value of trying a civil case in the nearest court division becomes less important when the impact of a ruling might be felt statewide or even nationally.

The amended policy applies to cases involving state or federal laws, rules, regulations, policies, or executive branch orders. District courts may continue to assign cases to a single-judge division when they do not seek to bar or mandate state or federal actions, whether by declaratory judgment and/or any form of injunctive relief.

In addition to the Judiciary policy, the CACM committee will disseminate guidance to all district courts regarding civil case assignment.

The  26-member Judicial Conference  is the policy-making body for the federal court system. By statute, the Chief Justice of the United States serves as its presiding officer and its members are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade.

The Conference convenes twice a year to consider administrative and policy issues affecting the court system.

Related Topics:  Judicial Conference of the United States

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

An assignment of a legal claim occurs when one party (the “assignor” ) transfers its rights in a cause of action to another party (the “assignee” ). 1 Footnote Black’s Law Dictionary 136 (9th ed. 2009) (defining “assignment” as “the transfer of rights or property” ). The Supreme Court has held that a private litigant may have standing to sue to redress an injury to another party when the injured party has assigned at least a portion of its claim for damages from that injury to the litigant. The Supreme Court in the 2000 case Vermont Agency of Natural Resources v. United States ex rel. Stevens held that private individuals may have Article III standing to bring a qui tam civil action in federal court under the federal False Claims Act (FCA) on behalf of the federal government if authorized to do so. 2 Footnote 529 U.S. 765, 768, 778 (2000) . The FCA imposes civil liability upon “any person” who, among other things, knowingly presents to the federal government a false or fraudulent claim for payment. 3 Footnote 31 U.S.C. § 3729(a) . To encourage citizens to enforce the Act, in certain circumstances, a private individual, known as a “relator,” may bring a civil action for violations of the Act. Such plaintiffs sue under the name of the United States and may receive a share of any recovered proceeds from the action. 4 Footnote Id. § 3730(d)(1)–(2) . Under the FCA, the relator is not merely the agent of the United States but an individual with an interest in the lawsuit itself. 5 Footnote Vt. Agency of Nat. Res. , 529 U.S. at 772 ( “For the portion of the recovery retained by the relator . . . some explanation of standing other than agency for the Government must be identified.” ) (citing 31 U.S.C. § 3730 ).

Ordinarily, if the relator’s financial interest in the outcome of the case were merely a byproduct of the suit itself, there would be no injury sufficient for standing. 6 Footnote Id. at 772–73 ( “An interest unrelated to injury in fact is insufficient to give a plaintiff standing. . . . A qui tam relator has suffered no [invasion of a legally protected right]—indeed, the ‘right’ he seeks to vindicate does not even fully materialize until the litigation is completed and the relator prevails.” ) (citations omitted). The Supreme Court has held that a litigant’s interest in recovering attorneys’ fees or the costs of bringing suit by itself normally does not confer standing to sue. E.g. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) ( “The litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.” ); Diamond v. Charles, 476 U.S. 54, 70–71 (1986) ( “[T]he mere fact that continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Art. III.” ). In Stevens , however, the Supreme Court recognized a distinction that confers standing upon qui tam plaintiffs in FCA cases. Justice Antonin Scalia, writing for the Court, determined that assignments of claims are distinguishable from cases in which a litigant has a mere financial interest in the outcome of the suit because the assignee-plaintiff actually owns a stake in the dispute as a legal matter. 7 Footnote Vt. Agency of Nat. Res. , 529 U.S. at 773 . Justice Scalia drew support for this distinction from the long-standing historical practice of the government assigning a portion of its damages claim to a private party and allowing that party to assert the injury suffered by the federal government as a representative of the United States. 8 Footnote Id. at 774, 778 The Court noted the “long tradition of qui tam actions in England and the American colonies,” 9 Footnote Id. concluding that “Article III’s restriction of the judicial power to ‘Cases’ and ‘Controversies’ is properly understood to mean ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’” 10 Footnote Id. Although the Court held that the relator had standing to sue under the qui tam provision, it ultimately determined that the plaintiff could not maintain the action against a state agency for allegedly submitting false grant claims to the EPA because states were not “persons” subject to liability under the False Claims Act. Id. at 787 .

Eight years after deciding Stevens , the Supreme Court again found that an assignee of a claim had standing, even when the assignee had promised to remit all of the money it recovered in the proceedings to the assignor. 11 Footnote Sprint Commc’ns Co. v. APCC Servs., Inc. , 554 U.S. 269 , 271 (2008) . In Sprint Communications Co. v. APCC Services, Inc. , payphone operators had assigned their legal claims for money owed to them by long-distance communications carriers to third-party collection agencies. 12 Footnote Id. at 271–72 . The agencies were authorized to bring suit on behalf of the payphone operators and promised to pay all of the proceeds of the litigation to the payphone operators for a fee. 13 Footnote Id. at 272 . The Court held that these collection agencies had standing to pursue the operators’ claims because of the long history of courts’ acceptance of such claims. 14 Footnote Id. at 273–75 . The Court noted that “federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth.” Id. at 287–88 . Assignment was sufficient to transfer the injury to the collections agencies, and the injury to the operators that had been transferred to the collection agencies would be redressed by a favorable judicial decision, even if the agencies would subsequently pay all of the proceeds to the operators. 15 Footnote Id. at 286–87 ( “[I]f the [collection agencies] prevail in this litigation, the long-distance carriers would write a check to [them] for the amount of dial-around compensation owed. What does it matter what the [agencies] do with the money afterward?” ).

The Stevens and Sprint cases could have broader implications for Article III standing doctrine, as they suggest a way in which the constitutional limitations on standing may be bypassed through the assignment of rights to a third party. 16 Footnote See also ArtIII.S2.C1.6.4.3 Particularized Injury. For instance, if Congress enacts a federal statute recognizing an injury to the federal government that otherwise satisfies Article III’s requirements, it may assign a portion of its claim to a private party, thereby potentially giving that plaintiff standing to sue as a representative of the United States. 17 Footnote See Vt. Agency of Nat. Res. , 529 U.S. at 773 . This is essentially the operation of the False Claims Act. 18 Footnote 31 U.S.C. §§ 3729–3733 . However, it is unclear whether every such statute would necessarily resolve all Article III standing concerns. In Stevens and Sprint , the Court gave significant weight to the lengthy history of courts recognizing the types of assignments at issue when determining that the litigants in those cases had standing to sue. 19 Footnote See id. at 774, 778 ; Sprint Commc’ns Co. , 554 U.S. at 273–75 . Moreover, there may be a number of concerns about the constitutionality and practicality of using assignments to delegate core government functions (e.g., criminal prosecutions) to private parties when courts have not historically recognized claims based on such assignments, including concerns about interference with the Executive Branch’s Article II powers and prosecutorial discretion. 20 Footnote See Heather Elliott , Congress’s Inability to Solve Standing Problems , 91 B.U. L. Rev. 159 , 195–204 (2011) (questioning whether Congress’s assignment of claims to citizen suitors in order to confer standing would be constitutional or practical).

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Thirtieth Circuit Court granted insurer’s motion for judgment on the pleadings for failure to comply with § 627.7152, Florida Statutes (2022) and dismissed the case with prejudice due to the incurable defect of the assignment agreement.

The plaintiff’s case arose out of an assignment of insurance benefits agreement executed by the insured-assignor and the plaintiff-assignee on April 19, 2022, which was attached to the plaintiff’s complaint as an exhibit, along with numerous estimates and invoices for various services rendered by the plaintiff. The complaint alleged breach of contract and breach of contract with implied equitable assignment of benefits in the alternative. The plaintiff’s assignment of benefits agreement was subject to section 627.7152, which applies to assignment agreements executed on or after July 1, 2019, through May 25, 2022.

Notably, the defendant’s motion asserted that the plaintiff’s assignment of benefits agreement was invalid and unenforceable for improperly containing an administrative fee, in violation of section 627.7152(2)(b)4, and because emergency services were provided under the assignment agreement and said services exceeded $3,000, in violation of section 627.7152(c). While the court disagreed with the “administrative fee” portion of the argument, the court agreed that the assignment failed to comply with § 627.7152, which provides the following limitations for a valid and enforceable assignment:

If an assignor acts under an urgent or emergency circumstance to protect property from damage and executes an assignment agreement to protect, repair, restore, or replace property or to mitigate against further damage to the property, an assignee may not receive an assignment of post-loss benefits under a residential property insurance policy in excess of the greater of $3,000 or 1 percent of the Coverage A limit under such policy. For purposes of this paragraph, the term “urgent or emergency circumstance” means a situation in which a loss to property, if not addressed immediately, will result in additional damage until measures are completed to prevent such damage.

Section 627.7152(2)(c), Fla. Stat.; see also § 627.7152(2)(d), Fla. Stat. (providing that “[a]n assignment that does not comply with this subsection is invalid and unenforceable”).

In making its determination, the court noted that the plaintiff’s own complaint alleged that “emergency water removal services” were provided to the insured, and it further conceded during the motion hearing that at least some services were provided under emergency circumstances. Yet, the total amount of the estimate and invoices submitted in support of the assignment far exceeded the statutory requirement, including the self-labeled invoice with the “emergency service call” line item, totaled $12,116.50.

In response to the plaintiff’s argument that § 627.7152(2)(c) merely limits the amount an assignee can recover for emergency services and the entire assignment agreement should not be deemed invalid and unenforceable despite the total amount charged for both emergency and non-emergency services exceeding $3,000, the court once again disagreed. The court reasoned that it must, instead, consider whether the plaintiff received an assignment agreement under an emergency circumstance for an amount that exceeded the limit imposed by section 627.7152(2)(c) to “protect . . . property or to mitigate against further damage to the property,” which are purposes that may fall under the statute’s express definition of “urgent or emergency circumstance.” 

The court ruled the statute does not delineate which services (emergency or non-emergency) rendered under the assignment agreement cannot exceed the statutory limit; rather, the statute simply provides that “an assignee may not receive an assignment of post-loss benefits under a residential property insurance policy in excess of” the statute’s limit.

The trial court recognized the precedent established in Restoration Team v. S. Oak Ins. Co. , 357 So. 3d 236, 241 (Fla. 3d DCA 2023) [48 Fla. L. Weekly D335a], which affirmed dismissal of the assignment of insurance benefits suit with prejudice because, among other reasons, the assignment agreement for emergency services exceeded the limit allowed under section 627.7152(2)(c). 

Legal Update for Florida Coverage & Property Litigation – September 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact [email protected] .

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Balance of Interests as a Principle of Civil Law: Some Aspects of Legal Consciousness

• Yury Alexandrovich SVIRIN Department Civil Procedural Law and Bailiff Organization Department, All-Russian State University of Justice, Moscow, Russian Federation
• Vladimir Viktorovich KULAKOV Department of Civil Law, Russian State University of Justice, Moscow, Russia Federation
• Alexandr Anatolievich MOKHOV Kutafin Moscow State Law University, Moscov, Russian Federation
• Sergej Nikolaevich SHESTOV Institute of Economics and Law, Academy of Labor and Social Relations, Sevastopol, Russian Federation
• Vladislav Petrovich SOROKIN Department of Civil Law and Process Ows, Academy of Labour and Social Relations, Moscow, Russian Federation

The research considers the category of reasonable balance of interests in the context of civil relations. The authors of the article highlight the need to restrict permissibility as a method of civil regulation aimed at protecting the rights and interests of the weaker party in some legal relations. A reasonable balance of interests is ensured by laws and agreements, whose conditions become the subject of a judicial dispute in the absence of a mandatory rule. The authors have analyzed judicial acts conditioned by the need to maintain a reasonable balance of interests. As a result, they have determined that the first condition for applying the fair balance principle is the equivalence of counter-performance in the absence of both excessive benefits and excessive losses for the parties. The second condition is the party-related division in some civil relations. The authors have concluded that the risks of negative consequences should not be borne only by the weaker party if the latter could not reasonably foresee the consequences upon concluding the relevant agreement. Methods. The study is based on the comparative analysis of the Russian scientific doctrine and judicial practice. The main approach to the analysis of the legal tools in question is the method of system analysis. In addition, the authors used the structural-functional method and general scientific methods of cognition. The study aims at determining the principle of a reasonable balance of interests in civil law, its essence, necessity and expediency in the system of law enforcement. The authors aim to define conditions for applying legal norms to achieve a reasonable balance of interests among all parties in disputed legal relations. Results. The study results let the authors claim that the risks of negative consequences should not be borne only by the weaker party if it could not reasonably foresee such consequences upon concluding the agreement and the imbalance of interests among parties in civil-legal relations is caused by the violation by one or another party of the principles of fair practice and reasonableness . Although a reasonable balance of interests is a counterweight to the principles of contractual freedom and free will, courts should apply it to ensure the right of justice.

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The University of Chicago The Law School

Innovation clinic—significant achievements for 2023-24.

The Innovation Clinic continued its track record of success during the 2023-2024 school year, facing unprecedented demand for our pro bono services as our reputation for providing high caliber transactional and regulatory representation spread. The overwhelming number of assistance requests we received from the University of Chicago, City of Chicago, and even national startup and venture capital communities enabled our students to cherry-pick the most interesting, pedagogically valuable assignments offered to them. Our focus on serving startups, rather than all small- to medium-sized businesses, and our specialization in the needs and considerations that these companies have, which differ substantially from the needs of more traditional small businesses, has proven to be a strong differentiator for the program both in terms of business development and prospective and current student interest, as has our further focus on tackling idiosyncratic, complex regulatory challenges for first-of-their kind startups. We are also beginning to enjoy more long-term relationships with clients who repeatedly engage us for multiple projects over the course of a year or more as their legal needs develop.

This year’s twelve students completed over twenty projects and represented clients in a very broad range of industries: mental health and wellbeing, content creation, medical education, biotech and drug discovery, chemistry, food and beverage, art, personal finance, renewable energy, fintech, consumer products and services, artificial intelligence (“AI”), and others. The matters that the students handled gave them an unparalleled view into the emerging companies and venture capital space, at a level of complexity and agency that most junior lawyers will not experience until several years into their careers.

Representative Engagements

While the Innovation Clinic’s engagements are highly confidential and cannot be described in detail, a high-level description of a representative sample of projects undertaken by the Innovation Clinic this year includes:

Transactional/Commercial Work

• A previous client developing a symptom-tracking wellness app for chronic disease sufferers engaged the Innovation Clinic again, this time to restructure its cap table by moving one founder’s interest in the company to a foreign holding company and subjecting the holding company to appropriate protections in favor of the startup.
• Another client with whom the Innovation Clinic had already worked several times engaged us for several new projects, including (1) restructuring their cap table and issuing equity to an additional, new founder, (2) drafting several different forms of license agreements that the company could use when generating content for the platform, covering situations in which the company would license existing content from other providers, jointly develop new content together with contractors or specialists that would then be jointly owned by all creators, or commission contractors to make content solely owned by the company, (3) drafting simple agreements for future equity (“Safes”) for the company to use in its seed stage fundraising round, and (4) drafting terms of service and a privacy policy for the platform.
• Yet another repeat client, an internet platform that supports independent artists by creating short films featuring the artists to promote their work and facilitates sales of the artists’ art through its platform, retained us this year to draft a form of independent contractor agreement that could be used when the company hires artists to be featured in content that the company’s Fortune 500 brand partners commission from the company, and to create capsule art collections that could be sold by these Fortune 500 brand partners in conjunction with the content promotion.
• We worked with a platform using AI to accelerate the Investigational New Drug (IND) approval and application process to draft a form of license agreement for use with its customers and an NDA for prospective investors.
• A novel personal finance platform for young, high-earning individuals engaged the Innovation Clinic to form an entity for the platform, including helping the founders to negotiate a deal among them with respect to roles and equity, terms that the equity would be subject to, and other post-incorporation matters, as well as to draft terms of service and a privacy policy for the platform.
• Students also formed an entity for a biotech therapeutics company founded by University of Chicago faculty members and an AI-powered legal billing management platform founded by University of Chicago students.
• A founder the Innovation Clinic had represented in connection with one venture engaged us on behalf of his other venture team to draft an equity incentive plan for the company as well as other required implementing documentation. His venture with which we previously worked also engaged us this year to draft Safes to be used with over twenty investors in a seed financing round.

More information regarding other types of transactional projects that we typically take on can be found here .

Regulatory Research and Advice

• A team of Innovation Clinic students invested a substantial portion of our regulatory time this year performing highly detailed and complicated research into public utilities laws of several states to advise a groundbreaking renewable energy technology company as to how its product might be regulated in these states and its clearest path to market. This project involved a review of not only the relevant state statutes but also an analysis of the interplay between state and federal statutes as it relates to public utilities law, the administrative codes of the relevant state executive branch agencies, and binding and non-binding administrative orders, decisions and guidance from such agencies in other contexts that could shed light on how such states would regulate this never-before-seen product that their laws clearly never contemplated could exist. The highly varied approach to utilities regulation in all states examined led to a nuanced set of analysis and recommendations for the client.
• In another significant research project, a separate team of Innovation Clinic students undertook a comprehensive review of all settlement orders and court decisions related to actions brought by the Consumer Financial Protection Bureau for violations of the prohibition on unfair, deceptive, or abusive acts and practices under the Consumer Financial Protection Act, as well as selected relevant settlement orders, court decisions, and other formal and informal guidance documents related to actions brought by the Federal Trade Commission for violations of the prohibition on unfair or deceptive acts or practices under Section 5 of the Federal Trade Commission Act, to assemble a playbook for a fintech company regarding compliance. This playbook, which distilled very complicated, voluminous legal decisions and concepts into a series of bullet points with clear, easy-to-follow rules and best practices, designed to be distributed to non-lawyers in many different facets of this business, covered all aspects of operations that could subject a company like this one to liability under the laws examined, including with respect to asset purchase transactions, marketing and consumer onboarding, usage of certain terms of art in advertising, disclosure requirements, fee structures, communications with customers, legal documentation requirements, customer service and support, debt collection practices, arrangements with third parties who act on the company’s behalf, and more.

Miscellaneous

• Last year’s students built upon the Innovation Clinic’s progress in shaping the rules promulgated by the Financial Crimes Enforcement Network (“FinCEN”) pursuant to the Corporate Transparency Act to create a client alert summarizing the final rule, its impact on startups, and what startups need to know in order to comply. When FinCEN issued additional guidance with respect to that final rule and changed portions of the final rule including timelines for compliance, this year’s students updated the alert, then distributed it to current and former clients to notify them of the need to comply. The final bulletin is available here .
• In furtherance of that work, additional Innovation Clinic students this year analyzed the impact of the final rule not just on the Innovation Clinic’s clients but also its impact on the Innovation Clinic, and how the Innovation Clinic should change its practices to ensure compliance and minimize risk to the Innovation Clinic. This also involved putting together a comprehensive filing guide for companies that are ready to file their certificates of incorporation to show them procedurally how to do so and explain the choices they must make during the filing process, so that the Innovation Clinic would not be involved in directing or controlling the filings and thus would not be considered a “company applicant” on any client’s Corporate Transparency Act filings with FinCEN.
• The Innovation Clinic also began producing thought leadership pieces regarding AI, leveraging our distinct and uniquely University of Chicago expertise in structuring early-stage companies and analyzing complex regulatory issues with a law and economics lens to add our voice to those speaking on this important topic. One student wrote about whether non-profits are really the most desirable form of entity for mitigating risks associated with AI development, and another team of students prepared an analysis of the EU’s AI Act, comparing it to the Executive Order on AI from President Biden, and recommended a path forward for an AI regulatory environment in the United States. Both pieces can be found here , with more to come!

Innovation Trek

Thanks to another generous gift from Douglas Clark, ’89, and managing partner of Wilson, Sonsini, Goodrich & Rosati, we were able to operationalize the second Innovation Trek over Spring Break 2024. The Innovation Trek provides University of Chicago Law School students with a rare opportunity to explore the innovation and venture capital ecosystem in its epicenter, Silicon Valley. The program enables participating students to learn from business and legal experts in a variety of different industries and roles within the ecosystem to see how the law and economics principles that students learn about in the classroom play out in the real world, and facilitates meaningful connections between alumni, students, and other speakers who are leaders in their fields. This year, we took twenty-three students (as opposed to twelve during the first Trek) and expanded the offering to include not just Innovation Clinic students but also interested students from our JD/MBA Program and Doctoroff Business Leadership Program. We also enjoyed four jam-packed days in Silicon Valley, expanding the trip from the two and a half days that we spent in the Bay Area during our 2022 Trek.

The substantive sessions of the Trek were varied and impactful, and enabled in no small part thanks to substantial contributions from numerous alumni of the Law School. Students were fortunate to visit Coinbase’s Mountain View headquarters to learn from legal leaders at the company on all things Coinbase, crypto, and in-house, Plug & Play Tech Center’s Sunnyvale location to learn more about its investment thesis and accelerator programming, and Google’s Moonshot Factory, X, where we heard from lawyers at a number of different Alphabet companies about their lives as in-house counsel and the varied roles that in-house lawyers can have. We were also hosted by Wilson, Sonsini, Goodrich & Rosati and Fenwick & West LLP where we held sessions featuring lawyers from those firms, alumni from within and outside of those firms, and non-lawyer industry experts on topics such as artificial intelligence, climate tech and renewables, intellectual property, biotech, investing in Silicon Valley, and growth stage companies, and general advice on career trajectories and strategies. We further held a young alumni roundtable, where our students got to speak with alumni who graduated in the past five years for intimate, candid discussions about life as junior associates. In total, our students heard from more than forty speakers, including over twenty University of Chicago alumni from various divisions.

The Trek didn’t stop with education, though. Throughout the week students also had the opportunity to network with speakers to learn more from them outside the confines of panel presentations and to grow their networks. We had a networking dinner with Kirkland & Ellis, a closing dinner with all Trek participants, and for the first time hosted an event for admitted students, Trek participants, and alumni to come together to share experiences and recruit the next generation of Law School students. Several speakers and students stayed in touch following the Trek, and this resulted not just in meaningful relationships but also in employment for some students who attended.

More information on the purposes of the Trek is available here , the full itinerary is available here , and one student participant’s story describing her reflections on and descriptions of her experience on the Trek is available here .

The Innovation Clinic is grateful to all of its clients for continuing to provide its students with challenging, high-quality legal work, and to the many alumni who engage with us for providing an irreplaceable client pipeline and for sharing their time and energy with our students. Our clients are breaking the mold and bringing innovations to market that will improve the lives of people around the world in numerous ways. We are glad to aid in their success in any way that we can. We look forward to another productive year in 2024-2025!