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 58

The: 01/24/2012

Court of Cassation
Civil Chamber 1
Public hearing dated March 9, 1983
Appeal no.: 81-12348
Published in the bulletin
REJECTION
Pdt Mr. Joubrel, president
Rpr Mr. Andrieux, chief clerk
Att. Gen. Mr. Baudoin, attorney general
Plaintiff attorney: Mr. Rouvière, SCP Lyon-Caen Fabiani Liard, attorney(s)

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE
ON THE FIRST GROUND: WHEREAS, ACCORDING TO THE STATEMENTS OF THE
CONTESTED RULING, IN 1952, SEVERAL INSURANCE COMPANIES GROUPED
THEMSELVES TOGETHER UNDER THE NAME OF POOL FOR GROUP INSURANCE
IN CASE OF DEATH OF THE HEADS OF LARGE AND MID-SIZED ENTERPRISES SO
AS TO CREATE THE EMPLOYER AND MANAGER SECURITY SYSTEM IN THE FORM
OF GROUP INSURANCE OPERATING UNDER A DISTRIBUTION SYSTEM;

WHEREAS BEGINNING IN 1953, THE POLICIES SUBSCRIBED FOR WITH THIS POOL
BY VARIOUS PROFESSIONAL GROUPS SET OUT THE PAYMENT OF CAPITAL
IRRESPECTIVE OF THE DATE OF DEATH OF THE MEMBER, BUT CONTAINING A
CLAUSE ACCORDING TO WHICH THE CONTRACT, WHICH ENDED ON DECEMBER
31 OF THE YEAR IN PROGRESS, WAS TACITLY RENEWABLE ANNUALLY, UNLESS
RENOUNCED BY REGISTERED LETTER AT LEAST THREE MONTHS BEFORE THE
RENEWAL DATE;

WHEREAS IN 1974, AFTER THE WITHDRAWAL OF MOST OF THE INSURERS, THE
COMPANY LA VIE NOUVELLE AND THE THREE COMPANIES MAKING UP THE
DROUOT GROUP, WHICH WERE THE ONLY COMPANIES REMAINING TO MANAGE
THE POOL, PROPOSED A DIFFERENT CONTRACT TO THE GROUPS HAVING
SIGNED THE POLICIES INCLUDING AN INCREASE IN THE PREMIUMS AND, FOR
THE INSURED AGED 75 YEARS OR OLDER, A DECREASE BY HALF IN THE

SUBSCRIBED CAPITAL;

WHEREAS AFTER ACCEPTANCE OF THE NEW POLICY BY SOME GROUPS, THE
INSURERS IN THE POOL NOTIFIED THE OTHER SIGNATORY GROUPS OF THEIR
DECISION TO TERMINATE THE OLD CONTRACTS AS OF DECEMBER 31, 1976;

WHEREAS THE NUMBER OF MEMBERS – BELONGING BOTH TO THE GROUPS
HAVING SIGNED THE NEW POLICY AND THOSE THAT REFUSED IT – THEN
FORMED A DEFENSIVE ASSOCIATION SO AS TO OBTAIN THE CANCELATION OF
THE TERMINATIONS HAVING TAKEN PLACE AND, SUBSEQUENTLY, THE
REESTABLISHMENT OF THE OLD SYSTEM, AND TO THAT END SUED THE
COMPANY LA VIE NOUVELLE, THE THREE COMPANIES IN THE DROUOT GROUP,
AND SEVERAL SIGNATORY GROUPS OF THE OTHER GROUP INSURANCE
CONTRACTS;

WHEREAS LA VIE NOUVELLE AND THE DROUOT GROUP REPROACH THE COURT
OF APPEAL FOR HAVING DECLARED THE ANNUAL DURATION CLAUSE IN THE
POLICIES REACHED BETWEEN THE INSURERS AND THE SUBSCRIBERS
UNENFORCEABLE AGAINST THE MEMBERS WHEREAS GROUP INSURANCE
CONSTITUTES A STIPULATION FOR THIRD PARTIES GRANTING THE MEMBER,
NOT A VOCATION TO SUBSCRIBE FOR SEPARATE INSURANCE, BUT A DIRECT
RIGHT TO THE AGREED-UPON GUARANTEE, AND THAT THUS, LA VIE NOUVELLE
AND THE COMPANIES IN THE DROUOT GROUP COULD ENFORCE ALL OF THE
EXCEPTIONS ENFORCEABLE AGAINST THE SUBSCRIBERS AGAINST THEM, AND
IN PARTICULAR THE TERM STIPULATED BY X…’s CLAUSE, SO THAT BY
DECLARING THIS CLAUSE UNENFORCEABLE AGAINST THE MEMBERS, THE
JUDGES IN SECOND DEGREE VIOLATED ARTICLES R 140-1, L 112-1 AND L 112-6
OF THE INSURANCE CODE, AS WELL AS ARTICLE 1121 OF THE CIVIL CODE, AND,
ALTERNATIVELY, BY NOT CHARACTERIZING A DEROGATION BY THE PARTIES
FROM THE ESTABLISHED LAW OF GROUP INSURANCE, THEY DID NOT GIVE
THEIR DECISION A LEGAL FOUNDATION;
BUT WHEREAS THE COURT OF APPEAL STATES THAT THE STIPULATION FOR
THIRD PARTIES CONTAINED IN ARTICLE II (OR IV) OF GROUP INSURANCE
POLICIES, THE DISTORTION OF WHICH IS NOT ALLEGED, WOULD ONLY GIVE THE
MEMBER A VOCATION TO ENTER WITH THE INSURER INTO A DISTINCT
CONTRACT RELATING, UNDER THE VERY TERMS OF THE MEMBERSHIP
CERTIFICATES, TO A DIRECT AND MUTUAL COMMITMENT BY THE PARTIES, THAT
THE MEMBERSHIP REQUEST DOES NOT CONSTITUTE AN ACCEPTANCE, BUT AN
OFFER OF INSURANCE DETERMINING THE SUBJECT-MATTER AND THE TERMS
OF THE CONVENTION TO BE ENTERED INTO, AND THE INSURERS, HAVING
NEGLECTED TO INFORM THE MEMBERS OF THE PRECARIOUS NATURE OF THE
PROPOSED CONVENTION, HAD THEMSELVES EXCLUDED THE X…’s ANNUAL
CLAUSE STIPULATED IN THE GROUP POLICIES FROM THE CONTRACTUAL FIELD;

WHEREAS, FROM THESE STATEMENTS, THE JUDGES IN SECOND DEGREE WERE
ABLE TO DEDUCE, WITHOUT VIOLATING THE TEXTS TARGETED IN THE
GROUNDS, THAT THE CLAUSE IN DISPUTE WAS UNENFORCEABLE AGAINST THE
INSURED;

WHEREAS THE COURT OF APPEAL THUS LEGALLY FOUNDED ITS DECISION, AND
THE GROUND THEREFORE CANNOT BE RECEIVED;

ON THE SECOND GROUND, CONSIDERED IN ALL FOUR BRANCHES THEREOF:
WHEREAS THE CONTESTED RULING IS ALSO CRITICIZED FOR HAVING ALLOWED
THAT X…’s CLAUSE HAD NOT BEEN BROUGHT TO THE ATTENTION OF THE
MEMBERS WHEREAS, FIRST, BY REQUIRING FROM THE INSURERS THE
COMMUNICATION TO ALL MEMBERS OF THE POLICY AND NOTICE, THE COURT OF
APPEAL MADE IT RESPONSIBLE FOR AN OBLIGATION NOT SET OUT BY ARTICLE
R 140-5 OF THE INSURANCE CODE, WHEREAS FURTHERMORE THE COURT OF
SECOND DEGREE CONTRADICTED ITSELF BY STATING THAT ONLY ONE OF THE
STANDARD FORMS REFERRED TO THE GROUP POLICY BY NOTING THAT ALL OF
THE MEMBERS KNEW ABOUT THE EXISTENCE OF THAT POLICY;

WHEREAS, AS IT COULD NOT DIVIDE THE CLAUSES THEREOF AND MAINTAIN, TO
THE BENEFIT OF THE MEMBERS, ALL OF THE STIPULATIONS OF THE POLICIES
WITH THE SOLE EXCEPTION OF X…’s ANNUAL CLAUSE;

WHEREAS, LASTLY, BY BASING ITSELF, TO PRONOUNCE THE
UNENFORCEABILITY OF A CLAUSE, ON LETTERS, BROCHURES AND CIRCULARS,
AND NOT ON CONTRACTUAL DOCUMENTS, THE COURT OF SECOND DEGREE,
WHICH ALSO ASSERTED THAT THE EXISTENCE OF AN INJURY WAS NOT PROVEN,
VIOLATED ARTICLES 1134 AND 1382 OF THE CIVIL CODE AS WELL AS ARTICLE
L 112-2 OF THE INSURANCE CODE;

BUT WHEREAS, FIRSTLY, THE COURT OF APPEAL, WHICH DID NOT STATE THAT
LA VIE NOUVELLE AND THE COMPANIES IN THE DROUOT GROUP WERE
REQUIRED TO COMMUNICATE THE POLICY AND A NOTICE TO ALL MEMBERS,
ONLY NOTED THAT THE AFOREMENTIONED COMPANIES HAD NOT
DEMONSTRATED THAT THE MEMBERS WERE AWARE OF A CLAUSE OF THAT
POLICY;

WHEREAS IT THEREFORE DID NOT VIOLATE ARTICLE R 140-5 OF THE INSURANCE
CODE;

WHEREAS, SECONDLY, CONTRARY TO THE ALLEGATIONS OF THE APPEAL, THE
JUDGES OF SECOND DEGREE DID NOT ASSERT THAT THE MEMBERS KNEW
ABOUT THE EXISTENCE OF THE GROUP POLICY;

WHEREAS, THEN, THE ALLEGED CONTRADICTION DOES NOT EXIST;

WHEREAS, THIRDLY, THE CONTESTED RULING DOES NOT VIOLATE ARTICLE L
112-2 OF THE INSURANCE CODE AND ARTICLE 1134 OF THE CIVIL CODE BY
ALLOWING THAT ONLY THE CLAUSES OF THE GROUP POLICY OF WHICH THE
MEMBERS WERE AWARE WERE ENFORCEABLE AGAINST THEM;

WHEREAS, LASTLY, THE COURT OF APPEAL ONLY UPHELD THE LETTERS,
BROCHURES AND CIRCULARS PROVIDED BY THE INSURERS TO THE MEMBERS
TO SHOW THAT THEY HAD NEVER BEEN INFORMED, BEFORE SIGNING A
MEMBERSHIP FORM, OF X…’s ANNUAL CLAUSE OF THE GROUP POLICY;

WHEREAS THE SECOND GROUND IS THEREFORE NO BETTER FOUNDED THAN
THE FIRST;

ON THESE GROUNDS: REJECTS THE APPEAL LODGED AGAINST THE RULING
HANDED DOWN ON FEBRUARY 25, 1981 BY THE PARIS COURT OF APPEAL.

Publication: Bulletin des arrêts Court of Cassation Civil Chamber 1 N. 91

Contested decision: Paris Court of Appeal (Chamber 1 A) dated February 25, 1981

Titles and summaries: PERSONAL INSURANCE – Group insurance – Policy – Clause –
Annual duration clause – Notification to beneficiaries – Absence – Effect –
Unenforceability. It is rightly that, to declare the annual duration clause included in the
policies entered into between insurers and subscribers unenforceable against the
members of a group insurance, a Court of Appeal held that the stipulation for third parties
contained in group insurance policies only grants the member a vocation to enter into a
distinct contract with the insurer pertaining, pursuant to the terms of the membership
certificates themselves, to a direct and mutual commitment by the parties, that the
“membership application” constitutes not an acceptance, but an insurance proposal
determining the subject-matter and conditions of the convention to be reached, and that
the insurers, who neglected to inform the members of the precarious nature of the
proposed convention, themselves excluded the annual duration clause stipulated in the
group policies from the contractual field.

* PERSONAL INSURANCE – Group insurance – Beneficiary – Membership application –
Scope – Insurance proposal. * STIPULATION FOR THIRD PARTIES – Personal
insurance – Group insurance – Effects – Beneficiary – Vocation to enter into a distinct
contract with the insurer.

Applied texts:

·
·
·

Civil Code 1134
Insurance Code L112-2
Insurance Code R140-5