Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 900

NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)

Exhibit 40

Document 1 of 1
Droit des sociétés Nº 7, July 2010, comm. 135
Renewal of membership in an association and freedom to contract
Commentary by Henri Hovasse
ASSSOCIATION
Summary
The non-renewal of membership in an association is not a disciplinary exclusion.

Cassation 1st civil chamber, May 6, 2010, Nº 09-66.969, F-P+B+I, Vaucelle Chauzamy v/Assoc.
des Gîtes de France et du Tourisme Vert de la Vienne: JurisData Nº 2010-005322
On the sole ground of action, considering its various aspects:
Whereas Ms. Chauzamy complains that judgment under appeal (Poitiers, April 9, 2009) held that
the decision not to renew her membership in the Gîtes de France et du Tourisme vert de la Vienne
Association as of January 1, 2006, which resulted in a prohibition against using the "Gîtes de
France" brand, was made in accordance with the statutory provisions, while, based on the cause
of action:
1º/ any unfavorable measure, regardless of how it is described, taken by an association in respect
of one of its members and motivated by that member's failure to comply with the rules and duties
to which it is held, constitutes a disciplinary sanction that may be legally decided only after
following the disciplinary procedure set forth in the association's articles of association and, more
generally after complying with the rights of the defense, and only for a reason justifying such a
measure under the terms of the association's articles and only if this sanction is in line with the
acts committed by the member of the association; by then limiting itself to stating, in order to
dismiss the cause of action raised by Ms. Micheline Vaucelle (married name, Chauzamy), that the
decision not to renew her membership in the Gîtes de France et du Tourisme vert de la Vienne
Association for 2006 actually constituted an unlawful disciplinary sanction given that it was made
without having followed the disciplinary procedure set forth in the association's articles and the
rights of the defense and for an unjustified reason, which did not legitimize it, that the decision
made by the Gîtes de France et du Tourisme vert de la Vienne Association with regard to Ms.
Micheline Vaucelle (married name, Chauzamy) did not in any way constitute a disciplinary
sanction, but represented simply the exercise of the freedom that the association reserves to itself,
under the terms of its articles, to approve the renewal of a membership without being required to
justify the reasons for this refusal of membership, without seeking to determine whether, as Ms.
Micheline Vaucelle (married name, Chauzamy) emphasized in her grounds of appeal, this
decision had not - in the terms of the minutes of the July 27, 2005 discussion of the Board of
Directors of the Gîtes de France et du Tourisme vert de la Vienne Association – been motivated
by alleged misconduct on the part of Ms. Micheline Vaucelle (married name, Chauzamy), as a
result of which her guest facility

had lost its warm and personal nature and her business approach was more akin to that of a hotelkeeper and did not comply with the Gîte de France ethic and therefore did not constitute, under
those same terms, a disciplinary sanction, the court of appeal's decision lacked legal basis in light
of the provisions of Article 1 of the French law of July 1, 1901 and Article 1134 of the French
Civil Code and of the principle, which ranks as constitutional law, of compliance with the rights
of the defense;
2º/ the refusal to renew a fixed-term contract may be unfair, even with adequate notice, based on
the specific circumstances associated with that decision; when the party that makes such a
decision acts in bad faith, justifying its decision on deliberately erroneous grounds that are
frivolous or fallacious; when restricting itself, consequently, to stating, in order to dismiss the
cause of action raised by Ms. Micheline Vaucelle (married name, Chauzamy), that the decision
not to renew her membership in the Gîtes de France et du Tourisme vert de la Vienne Association
for 2006 was an abuse of right, that no complaint may be lodged against the Gîtes de France et du
Tourisme vert de la Vienne Association for committing a fault or abuse of right by notifying Ms.
Micheline Vaucelle (married name, Chauzamy) in April 2005 that it did not intend to renew her
membership contract and that, on the contrary, by taking action several months before the
membership expiration date, it enabled Ms. Micheline Vaucelle (married name, Chauzamy) to
identify a new solution for her bed and breakfast business, without seeking to determine, as Ms.
Micheline Vaucelle (married name, Chauzamy) had asked it to do, whether the reasons set forth
by the Board of Directors of the Gîtes de France et du Tourisme vert de la Vienne association to
justify its decision, in its deliberation of July 27, 2005, were deliberately erroneous, frivolous or
fallacious, the court of appeal's decision lacked legal basis in light of the provisions of Articles
1134 and 1135 of the French Civil Code;
3º/ the refusal to renew a fixed-term contract may be unfair, even with adequate notice, based on
the specific circumstances associated with that decision; when, specifically, such a decision
constitutes abuse of authority or when it was made for illicit or discriminatory reasons; when
restricting itself, consequently, to stating, in order to dismiss the cause of action raised by Ms.
Micheline Vaucelle (married name, Chauzamy), that the decision not to renew her membership in
the Gîtes de France et du Tourisme vert de la Vienne Association for 2006 constituted an abuse of
right, that no complaint may be lodged against the Gîtes de France et du Tourisme vert de la
Vienne association for committing a fault or abuse of right by notifying Ms. Micheline Vaucelle
(married name, Chauzamy) in April 2005 that it did not intend to renew her membership contract
and that, on the contrary, by taking action several months before the membership expiration date,
it enabled Ms. Micheline Vaucelle (married name, Chauzamy) to identify a new solution for her
business, without seeking to determine, as Ms. Micheline Vaucelle (married name, Chauzamy)
had asked it to do, whether the decision not to renew her membership in the Gîtes de France et du
Tourisme vert de la Vienne Association for 2006 was actually made for reasons other than those
related to achieving the purpose of the Gîtes de France et du Tourisme vert de la Vienne
Association and to protect its interests and, more specifically, because of the personal jealousy
that certain directors of the association harbored toward Ms. Micheline Vaucelle (married name,
Chauzamy) and because on the latter's political opinions on the issue of whether the income of
the members of the association should be subject to the tax on industrial and commercial profits
and to social security charges, the court of appeal's the decision lacked legal basis in light of the
provisions of Articles 1134 and 1135 of the French Civil Code, the provisions of Articles 1 and 3
of the Law of July 1, 1901 and the provisions of Articles 9, 10 and 11 of the European
Convention on Human Rights and Fundamental Freedoms;
4º/ by holding that the decision not to renew the membership of Ms. Micheline Vaucelle (married
name, Chauzamy) in the Gîtes de France et du Tourisme vert de la Vienne Association as of

January 1, 2006 was made in accordance with statutory provisions and that Ms. Micheline
Vaucelle (married name, Chauzamy), could not use the "Gîtes de France" brand after that date,
when it stated that under the terms of the articles of association of the Gîtes de France et du
Tourisme vert de la Vienne Association, membership in the association was annual, when, as a
consequence, the decision made in 2005 by the Gîtes de France et du

Tourisme vert de la Vienne association not to renew the membership of Ms. Micheline Vaucelle
(married name, Chauzamy), could not take effect until 2006 and when, consequently, it could
only find that decision to be proper insofar as it applied to 2006 and hold that Ms. Micheline
Vaucelle (married name, Chauzamy) could no longer use the use the "Gîtes de France" brand but
only during that same year, the court of appeal violated the provisions of Article 1134 of the
French Civil Code;
But whereas, having noted that under Article 8 of the association's articles of association,
membership was limited to one year, that renewal could not be tacit but was subordinated to the
agreement of both the member and the association and, in accordance with the freedom to
contract, the association could refuse to renew at the end of the initial contract, the court of appeal
correctly held that the decision of the Board of Directors made against Ms. Chauzamy did not, in
any way, constitute a disciplinary exclusion as set forth in Article 7 of the articles of association,
but fell under the exercise of the freedom reserved to the association to approve the membership
renewal without having to justify the reasons for its refusal; that having subsequently established
that the association had acted several months before the date on which the membership would
expire and thus enabled Ms. Chauzamy to identify a new solution for her bed and breakfast
business, it rightly held, without having to examine the reasons invoked for the decision not to
renew, in the absence of information other than mere allegations indicating that they were illicit
or discriminatory, that a complaint could not be lodged against the association for any abuse of
right; that it deduced from that, properly interpreting and applying the provisions of the contract
and the July 27, 2005 deliberation of the Board of Directors, that the failure to renew Ms.
Chauzamy's membership had taken effect on January 1, 2006 and included, as of that date, the
ban on using the "Gîtes de France" brand, as that use was linked to the status of membership in
the association;
From which it follows that all aspects of the cause of action are unfounded;
For these reasons:
Rejects the appeal;
Note:
The articles of association of the "Gîtes de France" association provide that membership is
limited to one year. Membership may not be renewed tacitly, but entails a new agreement on the
part of both the member and the association. This is the context in which a member claimed that
the non-renewal of its membership concealed a disciplinary exclusion that would be null based on
the failure to follow the disciplinary procedure set forth in the articles of association. In its
decision handed down on May 6, 2010, the first civil chamber of the Court of Cassation approved
the Court of Poitiers' decision that the non-renewal of a membership in an association is not a
disciplinary exclusion. In so doing, it emphasized the contractual nature of the association and
contributed, indirectly, to defining an exclusion of a disciplinary nature.
First, the association follows from a contract. It is an agreement […] that "is governed, in respect
of its validity, by the general principles of law applicable to contracts and obligations." (French
Law of July 1, 1901, Art. 2). The Court of Cassation rightly emphasized that under the freedom to
contract, the association may refuse to renew the membership when the term of the initial contract
ends. Just as no one may be required to belong to an association, the association is also free to
choose whether to accept members. These are the two sides of the freedom of association (for an
in-depth study, see R. Mortier, note sous CA Grenoble, ch. Com., 31 oct. 2007, SARL Inès de la

Fressange Paris v. Assoc. Des exploitants Marques Avenue: Juris Data Nº 2007-349496 and CA
Pau, 2e ch. Sect. 1, 8 oct 2007, Assoc. du centre commercial quartier libre v. SARL Rocaver:
JurisData Nº 2007-352037; Dr. sociétés 2008, comm. 72). The court of Poitiers notes, and the
Court of Cassation takes up the observation, that "the renewal of the membership could not be
tacit but was subordinated to the agreement of both the member and the association." It does not
appear that the solution would have been different if a tacit renewal had been provided. As that
was not the case, the association could have, by express declaration, prevented that from
happening. The provision of a tacit renewal does not create a right to renewal; it is only a specific
method by which to exchange consent to a contract.
Second, the Court of Cassation contributes, indirectly, to defining an association's disciplinary
exclusion. A disciplinary exclusion assumes an existing membership that the association intends
to terminate. For that reason, it is distinguished from the refusal to accept a membership and
should not be confused with the latter. The governing rules are profoundly different. Specifically,
a disciplinary exclusion must be reasoned, while the refusal to accept a member, which falls
under the freedom to contract, is discretionary. The contribution of the decision of the Court of
Cassation in this regard appears slight but valuable.
Association. – Membership and renewal. – Exclusion. – Tacit renewal.
Texts: French Civil Code, Article 1134
Encyclopedias: Sociétés Traité, Fasc. 174-20.