While still in draft form, two of the Institute’s ongoing projects—Restatement of the Law, The U.S. Law of International Commercial Arbitration, and Restatement of the Law Third, Torts: Liability for Economic Harm—have been getting significant attention in state and federal courts.
There has been a growing interest in the Institute’s Restatement of the Law Third, Torts: Liability for Economic Harm. Drafted under the guidance of Reporter Ward Farnsworth, it was recently cited in In re Trevino, 535 B.R. 110 (July 31, 2015). In that case, the Southern District of Texas Bankruptcy Court held, among other things, that negligent-misrepresentation claims brought by Chapter 13 debtors against a mortgage lender did not sound in contract, because they were based on an independent duty imposed by the common law, and thus were not subject to the economic-loss doctrine. In making its decision, the Court looked to § 3 of Restatement Third, Torts: Liability for Economic Harm, as an authoritative statement of the economic-loss doctrine. The Court noted that “The Restatement provides as a general rule that ‘there is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contract between the parties.’”
Twenty-three prior cases have also cited Restatement of the Law Third, Torts: Liability for Economic Harm; they are:
- Sullivan v. Pulte Home Corp., 354 P.3d 424 (July 28, 2015).
- UMG Recordings, Inc. v. Global Eagle Entertainment, Inc., 2015 WL 4606077 (June 22, 2015)
- Glassford v. Dufresne & Associates, P.C., 2015 WL 3634591 (June 12, 2015)
- Global State Investment USA, Inc. v. LAS Properties, LLC, 2015 WL 1943370 (Apr. 29, 2015)
- Blankenship v. Westfield Ins. Co., 2015 WL 2338619 (May 13, 2015)
- Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976 (Apr. 20, 2015)
- Walsh v. Cluba, 117 A.3d 798 (Feb. 13, 2015)
- Maricopa County v. Office Depot, Inc., 2014 WL 6611562 (Nov. 21, 2014)
- JH Kelly, LLC v. Tianwei New Energy Holdings Co., Ltd., 68 F.Supp.3d 1194 (Nov. 10, 2014)
- In re Rural/Metro Corp. Stockholders Litigation, 102 A.3d 205 (Oct. 10, 2014)
- Red Equipment Pte Ltd. v. BSE Tech, LLC, 2014 WL 4662246 (Sept. 18, 2014)
- LAN/STV v. Martin K. Eby Const. Co., 435 S.W.3d 234 (June 20, 2014)
- Waste Management of Texas, Inc. v. Texas Disposal Systems Landfill, Inc., 434 S.W.3d 142 (May 9, 2014)
- In re Greenbelt Property Management, LLC, 2013 WL 7876159 (Dec. 19, 2013)
- Lyon Financial Services, Inc. v. Illinois Paper & Copier Co., 732 F.3d 755 (Oct. 9, 2013)
- Sullivan v. Pulte Home Corp., 306 P.3d 1 (July 31, 2013)
- Baker v. Goldman Sachs & Co., 949 F.Supp.2d 298 (June 11, 2013)
- Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 714 F.3d 1253 (Apr. 16, 2013)
- Whitecap Investment Corp. v. Putnam Lumber & Export Company, 2013 WL 1155241 (Mar. 21, 2013)
- Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Mar. 7, 2013)
- Doe v. Boland, 698 F.3d 877 (Nov. 9, 2012)
- In re MF Global Inc., 478 B.R. 611 (Oct. 2, 2012)
- Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Oct. 21, 2011)
Courts also have looked with interest to Restatement of the Law, The U.S. Law of International Commercial Arbitration, a subject that the ALI is undertaking for the first time. This project, headed by Reporter George A. Bermann, was recently cited in support of a holding by the U.S. Court of Appeals for the District of Columbia Circuit. In Belize Social Development Ltd. v. Government of Belize, 794 F.3d 99 (July 21, 2015), the Court affirmed the district court’s confirmation of an arbitration award in favor of a telecommunications company against the nation of Belize. In rejecting Belize’s argument that the court lacked subject-matter jurisdiction because Belize was entitled to sovereign immunity under the Foreign Sovereign Immunities Act, the Court concluded that the arbitration exception to the FSIA applied. The Court relied on the definition of “commercial” found in § 1–1 of the Restatement in holding that the agreement at issue was commercial in nature, governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and fell within the FSIA’s arbitration exception.
- Clientron Corp. v. Devon IT, Inc., 35 F.Supp.3d 665 (Aug. 8, 2014)
- Commissions Import Export S.A. v. Republic of the Congo, 757 F.3d 321 (July 11, 2014)
- Gonsalvez v. Celebrity Cruises, Inc., 935 F.Supp.2d 1325 (Mar. 13, 2013)
- Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 665 F.3d 384 (Dec. 14, 2011)
In light of growing interest in the project, the New York International Arbitration Center hosted Restatement of the U.S. Law of International Commercial Arbitration: a Bench–Bar Dialogue, on October 20, 2015. Professor Bermann and John Pierce, Head of International Arbitration in the New York office of Wilmer Cutler Pickering Hale and Dorr LLP, will discuss the Restatement and its role in the evolving field of international commercial arbitration.