# Opposition Brief — Mantaline Corp. v. PPG Industries, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1073

## Text

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IN THE

Supreme Court of the United States”) ---——

MANTALINE CORPORATION,

Petitioner,

Vv.

PPG INDUSTRIES, INC. and
AMERICAN ARBITRATION ASSOCIATION,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

PPG INDUSTRIES, INC.
AMIE L. BRUGGEMAN BREADEN M. DOUTHETT
Counsel of Record ROETZEL & ANDRESS
THOMAS M. PARKER 1375 East Ninth Street
ROETZEL & ANDRESS” One Cleveland Center
222 South Main Street 10" Floor
Akron, Ohio 44038 Cleveland, Ohio 44114
(330) 376-2700 (216) 623-0150

Attorneys for Respondent
PPG Industries, Inc.

163528 @) Counsel Press LLC
(800) 274-3321 + (800) 359-6859

_
4
— |

i
QUESTIONS PRESENTED

1. Under Ohio law, does a contract for the sale of goods
contain an arbitration clause when the sole written offer
contains that clause and the offeree promptly accepts ‘the
offer and performs, without any objection to the offer’s
proposed terms, without any proposal for additional terms,
and without so much as suggesting a negotiation over the
terms of the contract.

2. Does Ohio Revised Code § 1302.10 apply when the .
offer expressly limits acceptance to the terms of the offer,
and the offeree accepts the offer without “stat[ing] terms
additional or different from those offered or agreed
upon... .” Ohio Rev. Code § 1302.10(A).

ii
STATEMENT PURSUANT TO RULE 29.6

Respondent, PPG Industries, Inc., has no parent
corporation and no publicly held company owns 10% or more
of its stock.

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TABLE OF CONTENTS

Ee ee re

Statement Pursuant to Rule 29.6 ...............

og aleis

Reasons for Denying the Writ .................

I.

The Opinion And Judgment Of The Court Of
Appeals Was, Properly, Premised Upon State
Se Gece o etea kha 64 645 60 08

II. The Court Of Appeals Did Not Address The

III.

Claimed Violation Of Petitioner’s Right To
Trial By Jury, Nor Is That Right Implicated
By The Sixth Circuit’s Judgment .........

The Court Of Appeals’ Decision Was
Consistent With Ohio Law, With The
Uniform Commercial Code, And Is Not In
Conflict With The Law Stated By The Fifth
es i eee ue

A. The Court Of Appeals Logically Applied
Ohio’s U.C.C. Statutes In A Manner

Consistent With The Courts That Have
Addressed The Issues Raised. .......

Page

10

iv

Contents
Page

B. There Is No Conflict Between The Sixth
Circuit Decision, Under Ohio State Law,
And The Fifth Circuit’s Axelson
So err rs eee ss ree 12

C. Even If There Was A Conflict Among
The Circuits Regarding The Substantive
Construction Of Two Different States’
Laws, Review By The Supreme Court
re eer re ere 13

SN os Si ae he es er oe ee ee 15

Vv

TABLE OF CITED AUTHORITIES

Page
Cases:
Alexander v. Buckeye Pipe Line Co., 53 Ohio St. 2d

241, 374 N.E.2d 146 (1978) ...........0c cee 8,9
Audio Visual Associates, Inc. v. Sharp Electronics

Corp., 210 F.3d 254 (4" Cir. 2000) ........... 11
Axelson, Inc. v. McEvoy-Willis, 7 F.3d 1230 (5® Cir.

SPE Acckuucneas tude ce wedces ves oeek 10, 12, 13
Bishop v. Wood, 426 U.S. 341 (1976) ........... 11
Eliason v. Henshaw, 17 U.S. 225 (1819) ......... 4
First Options of Chicago, Inc. v. Kaplan, 514 U.S.

Pe i ch uc Gre bate would Keweexwe won 5, 6,9
Gulf States Utilities Co. v. NEI Peebles Electric

Products, Inc., 819 F. Supp. 538 (M.D. La.

WY cn edhe ta wae Cee Re das bo ks 11
Haring v. Prosise, 462 U.S. 306 (1983) ......... 6, 11
J. Truett Payne Co., Inc. v. Chrysler Motors Corp.,

Pe Shee EEE ois HRN NO aS een oe 8

Litton Systems, Inc. v. Leviton Mfg. Co., Inc.,
be ee gl tO ee 11

vi

Cited Authorities

Mastrobuono v. Shearson Lehman Hutton, Inc.,
Re) ae ee en ae a

McJunkin Corp. v. Mechanicals, Inc., 888 F.2d 481
PN EE Ss sna o BA Sue uke Cake bw bas

New State Ice Co. v. Liebman, 285 U.S. 262 (1932)

2 ee hee SSO 2 eS Oe O.8 6 Go OE OSES £.O O'O 2 OD OS 6 OES OS

Perry v. Thomas, 482 U.S. 382 (1987) ..........

Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d
en SE oss ck a's we Oe ke Waa eke

Technographis, Inc. v. Mercer Corp., 777 F. Supp.
1214(M.D. Pa. 1991), aff'd, 26 F.3d 123 (3" Cir.
oe boa ak iat Weg iain ale wera & eee a ae

United States ex rel. Modern Electric, Inc. v. Ideal
Electronic Security Co., Inc., 81 F.3d 240
okay ak adda Mua e le

Universal Oil Products Co. v. 8.C.M. Corp., 313
P. cape. 903 (D. Comm. 1978) 2... ces sencess

Volt Information Sciences, Inc. v. Bd. of Trustees of
Leland Stanford Junior Univ., 489 U.S. 468
EAP ee ra ere ee red ere eee

Page

11

1]

vii

Cited Authorities

Page

Statutes:
Cee cv. Come 6 1908 G8 oki oc 14
Omse Rev. Code § 150200 ook vind 3,4
Onto Rev. Code § 1902.10 2... 5... ccc ccc nee passim
Rule:
United States Supreme Court Rule 10 ........... 5
Other Authorities:
McLaughlin, The Evolving Uniform Commercial

Code: From Infancy to Maturity to Old Age,

26 Loy. L.A. L. Rev. 691, 692 (1993) ......... 13,14
Restatement (Second) of Contracts § 26 ......... as

Restatement (Second) of Contracts § 30(1) ...... 4

|

STATEMENT OF THE CASE

At some time before January of 1986, Respondent PPG
Industries, Inc., a Pennsylvania corporation, asked several
companies, including Petitioner Mantaline Corporation, an
Ohio company, to provide it with a written quotation for the
supply of interior and exterior glazing gaskets for use by
PPG in the Security Life Center; an office building in Denver,
Colorado. PPG wanted those gaskets as part of its bid to
supply windows for the Security Life building.

PPG personnel testified at deposition that they probably
received Mantaline’s response to PPG’s request. Although
the original was not in the parties’ records, Mantaline’s
response was a standard quotation form which had several
pre-printed terms, including the terms:

This proposal is for immediate acceptance only
and is subject to change at any time before orders
are accepted by us. This proposal and our
acceptance of your orders, signed by a
representative of our Company, together with your
order, constitutes the entire contract between us.

(Petition for Writ of Certiorari Appendix at 98a). Both the
district court and the Court of Appeals held that, in light of
this terminology, Mantaline’s quotation form was not, under
Ohio law, a contractual offer; but was rather simply an
invitation to deal.

In January of 1986, PPG issued a purchase order to
Mantaline, asking it to supply the gaskets and related
materials described in the request for a written quotation, at
the price of $56,399.36. The purchase order was expressly

2

conditioned on the supplier’s (Mantaline’s) consent to all its
terms, and indicated that the supplier’s assent to the purchase
order’s terms “will be manifested by delivery of any portion of
the goods designated herein.””' The purchase order included both
an indemnity clause and an arbitration provision. Petitioner
Mantaline shipped the ordered goods without adding or
disclaiming any contract terms.

Because of damage caused to the windows when the gaskets
installed at the Security Life building leached sulfur, Security
Life sued PPG in the United States District Court for the
Southern District of Colorado. After that litigation was
concluded, PPG commenced arbitration proceedings seeking
indemnity, which prompted this lawsuit. Mantaline brought suit
in Ohio state court, seeking both a declaratory judgment over
the terms of the parties’ contract and an injunction enjoining
PPG from compelling arbitration. PPG removed the case to the
United States District Court for the Northern District of Ohio
on the basis of diversity jurisdiction.

In the district court, although the court held that Petitioner
Mantaline’s standard quotation form was not an offer, it
nonetheless contradicted PPG’s terms, supporting application
of Ohio Rev. Code § 1302.10(C), a portion of Ohio’s version
of U.C.C. 2-207, the “battle of the forms” provision. In so doing,
the district court relied upon a previous Sixth Circuit opinion
construing Ohio’s UCC sales provisions, McJunkin Corp. v.

1. The Appendix to the Petition does not contain the full text of
the PPG’s purchase order. Particularly, and peculiarly given the attention
directed to it by the Sixth Circuit, the Appendix does not contain the
fully capitalized condition which appeared on the face of the purchase
order, which stated “THIS PURCHASE ORDER IS EFFECTIVE AND
EXPRESSLY CONDITIONAL ON SUPPLIER’S ASSENT TO ALL
TERMS AND CONDITIONS IN THIS PURCHASE ORDER... .”
(See Sixth Circuit’s Opinion, Petition at 6a).

3

Mechanicals, Inc., 888 F.2d 481 (6" Cir. 1989). Inasmuch as
Ohio Rev. Code § 1302.10(C) provides, in part, that “the terms
of the particular contract consist of those terms on which the
writings of the parties agree”, the district court held that the
parties had not agreed to arbitrate, and granted summary
judgment in favor of Petitioner Mantaline.

On appeal, the Sixth Circuit reversed. The Circuit Court
found that inasmuch as there was but one offer, and inasmuch
as Petitioner Mantaline performed without any exception or
disclaimer to the terms of the offer, a contract was formed on
Respondent PPG’s terms; hardly a novel proposition.
In its discussion, the Sixth Circuit found that Section 1302.10(C)
“does not exist in isolation.” (Petition for Writ cf Certiorari
Appendix at 6a). The Court found that Ohio Rev. Code
§ 1302.09, U.C.C. 2-206, provides that performance constitutes
acceptance, and that 1302.10(C) must be read with the other
provisions of Section 1302.10, i.e. U.C.C. 2-207(1) and (2),
and its “battle of the forms” provisions only apply when
acceptance or confirmation of an offer is met with new or
additional terms; an event which did not occur in the PPG/
Mantaline transaction, but which did occur in the Sixth Circuit’s
prior McJunkin opinion. The court concluded:

Because PPG’s purchase order constituted the sole
“offer”, and Mantaline’s shipment of conforming
goods constituted an unqualified “acceptance” of the
offer, the resulting contract included the terms of
PPG’s purchase order providing for indemnification
and arbitration of disputes.

(Petition for Writ of Certiorari Appendix at 11a). The Circuit
Court consequently reversed the judgment of the district court
and remanded the case for further proceedings consistent with
its opinion.

4

REASONS FOR DENYING THE WRIT

The Court of Appeals’ opinion in this case was premised
upon three conclusions. First, Petitioner’s standard quotation —
form, by its equivocating reservation of final contract
approval, was simply an invitation to deal, without legal
effect under Ohio law. This is a basic conclusion of
traditional contract law. See Restatement (Second) of
Contracts § 26 (“A manifestation of willingness to enter into
a bargain is not an offer if the person to whom it is addressed
knows or has reason to know that the person making it does
not intend to conclude a bargain until he has made a further
manifestation of assent.”). Second, PPG’s order, which
expressly anticipated acceptance by performance, was
accepted by Petitioner’s performance which was not
accompanied by any objection or proposed additions to
PPG’s terms. Again, this comports with Ohio law, and the
common law generally. See Ohio Rev. Code § 1302.09(A)(2)
(“an order . . . shall be construed as inviting acceptance .. .
by prompt shipment of conforming or non-conforming
goods.”); Restatement (Second) of Contract § 30(1). Third,
the Court of Appeals held that the terms of the contract were
those of PPG’s offer, which was accepted by Petitioner’s
performance and that Petitioner’s failure to object to PPG’s
terms prevented application of Ohio Rev. Code § 1302.10.
Again, the conclusion is not surprising; the terms of a contract
are those of the offer, accepted by the offeree. Since the
founding of the Republic, it has been “‘an undeniable principle
of the law of contracts” that acceptance without reservation
creates a contract “according to the terms in which the offer
was made.” Eliason v. Henshaw, 17 U.S. 225, 227 (1819).
The Sixth Circuit’s conclusions of law are in accord with a
host of authority, around the country, construing other state’s
versions of the U.C.C. See infra.

5

Given the foregoing facts and conclusions of law, the
Petition is without merit. This case does not involve an.
important question of federal law that has not been but should
be decided by the Court. Sup. Ct. R. 10(c). This case does
not turn on an important federal question which has been
decided by a state court of last resort in a manner conflicting
with another state court of last resort or federal courts of
appeal. Sup. Ct. R. 10(b). There is no argument that the lower
courts’ practice departed from the accepted and usual course
of judicial proceedings, or that the Sixth Circuit’s judgment
conflicts with a state court of last resort on an important
federal question. Sup. Ct. R. 10(a).

Rather, dissatisfied with the Court of Appeals’ clear cut
conclusions of basic Ohio contract law, Petitioner asserts
two issues for the Court’s review; the alleged deprivation of
its right to a jury trial and an alleged conflict, regarding the
application of state law, between the Sixth and Fifth Circuits.
The Petition betrays a misunderstanding of the law governing
contract formation, its effect on the rights of the parties, and
the role of the Uniform Commercial Code in our federal
System; points to which Respondent now turns.

I.

THE OPINION AND JUDGMENT OF THE COURT
OF APPEALS WAS, PROPERLY, PREMISED
UPON STATE LAW

As the Court has noted, when deciding whether the
parties have agreed to arbitrate, courts “should apply ordinary
state-law principles that govern the formation of contracts.”
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944

6

(1995). This is precisely what the lower courts did in this
case. As Petitioner noted in the Court of Appeals:

[t]he central issue in this case is whether the
District Court properly determined that Ohio
Revised Code § 1302.10(C) prevents ... PPG
Industries, Inc.’s . . . purchase order provisions,
which conflict with those contained in...
Mantaline Corporation’s quotation from
becoming the sole terms and conditions applicable
to their contract for the sale and purchase of
window gaskets.

(Petition for Writ of Certiorari Appendix at 59a). In other
words, the courts below interpreted Ohio law governing
contract formation to determine whether the parties had, by
their written terms and conduct, agreed to arbitrate. As the
Court has noted: “a challenge to state-law determinations
by the Court of Appeals will rarely constitute an appropriate
subject of this Court’s review.” Haring v. Prosise, 462 US.
306, 314 n.8 (1983).

Apparently, despite the fact that Petitioner has, as a
matter of law, entered into a contract calling for arbitration,
Petitioner believes that its standard quotation form illustrates
it had not consented to arbitration, and hence a conclusion
that it agreed to arbitrate conflicts with the Court’s opinions
in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S.
52 (1995) and Volt Information Sciences, Inc. v. Bd. of
Trustees of Leland Stanford Junior Univ., 489 U.S. 468
(1989). These opinions, however, and the Federal Arbitration
Act itself, require an agreement to arbitrate, a matter decided
under state law of contract formation. Petitioner simply fails
to recognize the consequences of its actions. Under Ohio

7

law, by performing without objection, Petitioner accepted
the terms and conditions of PPG’s offer as forcefully and
fully as if it had signed an acceptance. It is hardly unusual
for a Court to find that conduct such as performance
manifests assent to a bargain. United States ex rel. Modern
Electric, Inc. v. Ideal Electronic Security Co., Inc., 81 F.3d
240, 244 (D.C. Cir. 1996) (“a purchase order may stand as
an offer with performance of its terms constituting acceptance
* * * [t]his principle is well-recognized, even outside District
of Columbia common law.”). Petitioner’s complaint to this
Court is simply one shared by every litigant who denies being
party to an arbitration agreement.

THE COURT OF APPEALS DID NOT ADDRESS THE

CLAIMED VIOLATION OF PETITIONER’S RIGHT TO

TRIAL BY JURY, NOR IS THAT RIGHT IMPLICATED
BY THE SIXTH CIRCUIT’S JUDGMENT

Apparently in an attempt to shoehorn a federal issue into
its state-law objections, Petitioner claims that the Sixth
Circuit’s determination that the contract includes an
arbitration clause deprives Petitioner of its constitutional
right to a jury trial. There are numerous logical and
procedural ¢ifficulties with Petitioner’s request for review
of this “issue”.

First, in the Sixth Circuit, the only discussion of a
violation of Petitioner’s jury trial right was the bare assertion,
in Peti‘toner’s appellate brief, that requiring arbitration would
violate Petitioner’s jury trial right under the United States
and Ohio Constitutions. (Petition for Writ of Certiorari
Appendix at 82a). Petitioner never discussed why such a

8

violation would occur, nor did the Sixth Circuit address this
assertion. There is good reason for the disregard of
Petitioner’s jury-trial argument: “the loss of the right to a
jury trial is a necessary and fairly obvious consequence of
an agreement to arbitrate.” Pierson v. Dean, Witter, Reynolds,
Inc., 742 F.2d 334, 339 (7" Cir. 1984). Petitioner improperly
asks this Court to review a phantom issue which received
no substantive attention from either the parties or the
courts below. See Perry v. Thomas, 482 U.S. 382, 492 (1987)
(“[w]e likewise decline to reach [plaintiff's] contention that
[defendants] lack ‘standing’ to enforce the agreement to
arbitrate any of these claims, since the courts below did not
address this alternative argument for refusing to ceinpel
arbitration.”). See also J. Truett Payne Co., Inc. v. Chrysler
Motors Corp., 451 U.S. 557, 568 (1981) (“We do not
ordinarily address for the first time in this Court an issue
which the Court of Appeals has not addressed... .”).
Moreover, even if the Court of Appeals had addressed the
issue of Petitioner’s jury trial right, and there was, in fact, a
record-based issue for the Court to review, the underlying
premise of Petitioner’s jury trial question is incorrect for
two reasons.

First, as noted above, the waiver of the right to a jury is
a necessary consequence of Petitioner’s agreement to
arbitrate. In accordance with black-letter law, the Sixth
Circuit found an agreement to arbitrate. A jury trial right is
no more or less implicated in this case than in every case in
which a party, over its objections, has been found to have
agreed to arbitration. Further, Petitioner would simply not
be entitled to a jury’s determination of whether it agreed to
arbitrate; under Ohio law the construction of written contracts
and instruments is a matter of law, the jury simply determines
breach. Alexander v. Buckeye Pipe Line Co., 53 Ohio St. 2d

9

241, 374 N.E.2d 146, 148 (1978). Plaintiff's alleged jury
trial right is, necessarily, subsumed within the state law
question decided by the Sixth Circuit.

Second, as this Court has mandated, the lower courts
determined whether the parties had agreed to arbitrate in
accordance with state law. First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 944 (1995). The lower courts did what
judges do every day — determine whether the parties had
reached a contract, and what the terms of that contract were.
Petitioner’s argument that its jury trial right is implicated
by the Circuit Court’s state law conclusion is nothing more
than an obvious attempt to alter state law for one reason alone
— an arbitration provision is contained within the agreement
at issue. Such an argument, of course, flies in the face of the
Federal Arbitration Act, and the cases decided thereunder,
wherein Congress and the federal courts have sought to
ameliorate vestigial judicial hostility to arbitration. As the
Court has noted:

[a] court may not, then, in assessing the rights of
litigants to enforce an arbitration agreement,
construe that agreement in a manner different
from that in which it otherwise construes
nonarbitration agreements under state law. Nor
may a court rely on the uniqueness of an
agreement to arbitrate as a basis for a state-law
holding that enforcement would be
unconscionable, for this would enable the court
to effect what we hold today the state legislature
cannot.

Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987).

10

Il.

THE COURT OF APPEALS’ DECISION WAS
CONSISTENT WITH OHIO LAW, WITH THE UNIFORM
COMMERCIAL CODE, AND IS NOT IN CONFLICT
WITH THE LAW STATED BY THE FIFTH CIRCUIT

Finally, Petitioner argues that the Sixth Circuit’s opinion
is a “judicial modification of § 2-207(3) of the Uniform
Commercial Code [and] conflicts with the ruling of the
Fifth Circuit Court of Appeals... .” (Petition for Writ of
Certiorari at 9). Petitioner’s argument is premised upon a
misunderstanding of the law of contract formation, the Fifth
Circuit’s holding in Axelson, Inc. v. McEvoy-Willis, 7 F.3d
1230 (5" Cir. 1993), and the role of the Uniform Commercial
Code in our federal common law system. Respondent will
address these three points in turn.

A. THE COURT OF APPEALS LOGICALLY
APPLIED OHIO’S U.C.C. STATUTES IN A
MANNER CONSISTENT WITH THE COURTS
THAT HAVE ADDRESSED THE ISSUES RAISED.

As the Sixth Circuit noted, Petitioner reads Ohio Rev.
Code § 1302.10(C) [U.C.C. 2-207(3)] “in isolation”.
(Petition for Writ of Certiorari Appendix at 6a). Petitioner
suggests that so long as there are any conflicting “writings”,
combined with performance, Article 2 of the U.C.C. demands
that the terms of the sales contract are limited to those to
which the parties’ writings agree. For obvious reasons, the
Sixth Circuit rejected this argument — under the very terms
of the U.C.C. (and, for that matter, the common law), a
written offer can be accepted by performance. A true “battle
of the forms” occurs when the “expression of acceptance or

11

written confirmation . . . states terms additional or different
from those offered or agreed.” Ohio Rev Code § 1302.10(A)
[U.€.C. 2-207(1)]. This is the very purpose of the Section
— under the common law an acceptance containing differing
terms constituted a counter-offer. Petitioner’s problem is that
it whole-heartedly accepted PPG’s offer; there was no
counter-offer to invoke a battle-of-the-forms.

As the Court has noted: “[i]t is our practice to
accept a reasonable construction of state law by the Court of
Appeals ‘even if an examination of the state-law issue
without such guidance might have justified a different
conclusion.’ ” Haring v. Prosise, 462 U.S. 306, 314 (1983)
(quoting Bishop v. Wood, 426 U.S. 341, 346 (1976)).
It goes without saying that the Sixth Circuit’s approach
to Ohio Rev. Code § 1302.10 is entirely reasonable.
Indeed, it is consistent with the opinions of other federal
courts interpreting other states’ versions of U.C.C. 2-207.
See, e.g., Litton Systems, Inc. v. Leviton Mfg. Co., Inc.,
15 F.3d 790, 784 (8" Cir. 1994) (applying Minnesota law);
Gulf States Utilities Co. v. NEI Peebles Electric Products,
Inc., 819 F. Supp. 538 (M.D. La. 1993) (applying California
law); Technographis, Inc. v. Mercer Corp., 777 F. Supp.
1214 (M.D. Pa. 1991), aff'd, 26 F.3d 123 (3" Cir. 1994)
(applying Pennsylvania law). See also Audio Visual
Associates, Inc. v. Sharp Electronics Corp., 210 F.3d 254,
259 (4" Cir. 2000) (applying Maryland law). In fact, for at
least thirty years, federal courts, applying the U.C.C., have
found arbitration clauses to be included in sales contracts
under the precise facts presented here: price quotation,
followed by purchase order containing arbitration clause,
followed by performance without objection to the
purchase order’s terms. See Universal Oil Products Co. v.
S.C.M. Corp., 313 F. Supp. 905 (D. Conn. 1970) (applying

12

Connecticut law). Despite this logical consistency of
approach, Petitioner nonetheless argues both that the Fifth
Circuit’s Axelson opinion is to the contrary and that such a
contrary conclusion warrants the attention of the United
States Supreme Court. Both arguments suffer in several
respects.

B. THERE IS NO CONFLICT BETWEEN THE SIXTH
CIRCUIT DECISION, UNDER OHIO STATE LAW,
AND THE FIFTH CIRCUIT’S AXELSON OPINION.

The Fifth Circuit’s opinion in Axelson certainly is not
contrary to the Sixth Circuit’s conclusions in this case —
a fact specifically noted by the Sixth Circuit itself. (Petition
for Writ of Certiorari Appendix at 10a). Despite the fact that
the Fifth Circuit applied Texas law in its case, Petitioner
cannot point to one statement of law in Axelson which
contradicts the Sixth Circuit’s judgment in this case.
The reason for this lack of contradictory terms is that the
Axelson panel examined three possible resolutions of an
alleged battle of forms question, which arise under facts much
more convoluted and strikingly different than those involved
here.

In brief, Axelson involved a seller’s quotation that did
not contain a damage limitation provision, followed by the
buyer’s letter of intent that did not contain the damage
limitation provision at issue, followed by the commencement
of the seller’s performance, followed, at last and three months
later, by the buyer’s “official” purchase order, which
contained the objectionable damage limitation provision at
issue.

13

The Fifth Circuit addressed three possible alternatives:

(1) the quotation was an offer that was accepted by a letter _
of intent, (2) the letter of intent was an offer that was accepted
by the seller, or (3) that the conduct of the parties recognized
the contract — the approach presumably appealing to
Petitioner in this case. The Fifth Circuit found no need to
adopt any approach, and expressly made its holding
“[a]lternatively”, because “[rJegardless of which of the above
approaches we take, the result is the same.” Axelson, 7 F.3d
at 1231, 1234 (5" Cir. 1993). Petitioner has neglected to
inform the Court of an important point: one of the Fifth
Circuit’s alternative approaches in Axelson, based on
contractual offer and acceptance, was entirely consistent with
the reasoning of the Sixth Circuit and other courts.

C. EVEN IF THERE WAS A CONFLICT AMONG THE
CIRCUITS REGARDING THE SUBSTANTIVE
CONSTRUCTION OF TWO DIFFERENT STATES’
LAWS, REVIEW BY THE SUPREME COURT IS
INAPPROPRIATE.

Finally, the Petition ignores a basic premise of our
federal system. Even if the Fifth Circuit’s Axelson opinion
was contrary to the Sixth Circuit’s opinion in this case, such
a divergence of opinion is the expected (and some would
argue preferable) result of our federal system. The Uniform
Commercial Code is not a federal law, but is the product of
a joint effort by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws.
Despite its name, the U.C.C. is certainly not uniform:
“every state has modified the official text of the U.C.C. in
one way or another.” McLaughlin, The Evolving Uniform
Commercial Code: From Infancy to Maturity to Old Age,
26 Loy. L.A. L. Rev. 691, 692 (1993).

14

Moreover, even if the state legislatures had enacted an
identical Code and had renounced both their own independent
amendments and the numerous subsequent revisions and
amendments proposed by the U.C.C.’s academic authors, the
U.C.C. was and is still destined for common law divergence
of application. The Act itself provides for common law
supplementation of its terms, Ohio Rev. Code § 1301.03
[U.C.C. 1-103] and, significantly for our purposes,
“does not define key terms such as ‘offer’, ‘acceptance’ and
‘possession’, thus requiring courts to utilize common-law
definitions of these terms when applying the Code.”
McLaughlin, The Evolving Uniform Commercial Code:
From Infancy to Maturity to Old Age, 26 Loy. L.A. L. Rev.
691, 692 (1993). In short, from its beginning, the U.C.C.
would inevitably be subject to change by fifty legislatures
and would inevitably be subject to interpretation by fifty state
court systems and the various federal courts exercising
diversity jurisdiction.

Contrary to the Petitioner’s implicit suggestion, a bit of
State law divergence, even if it existed, is not necessarily a
bad thing. This is “one of the happy incidents of the federal
system”; the laboratory of the law. New State Ice Co. v.
Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
The Petition asks for the remarkable from this Court — the
exercise of its jurisdiction to resolve a phantom conflict
between one court’s construction of a Texas state law and
another court’s construction of an Ohio state law.

15
CONCLUSION

For all of the foregoing reasons, Respondent respectfully
requests that this Honorable Court deny the Petition.

Respectfully submitted,

AMIE L. BRUGGEMAN
Counsel of Record
THOMAS M. PARKER
ROETZEL & ANDRESS
222 South Main Street
Akron, Ohio 44038
(330) 376-2700

BREADEN M. DouTHETT
ROETZEL & ANDRESS
1375 East Ninth Street
One Cleveland Center
10 Floor

Cleveland, Ohio 44114
(216) 623-0150

Attorneys for Respondent
PPG Industries, Inc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1454%3A2. Public record. Not legal advice.