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The Complainants are Chicago Mercantile Exchange Inc. and CME Group Inc. of Chicago, Illinois, United States of America ("United States" or "US"), represented by Norvell IP llc, United States.
The disputed domain name <cmegrroup.com> is registered with GoDaddy.com, LLC (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 15, 2015. On October 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 16, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information set forth in the Complaint. On October 22, 2015, the Center sent an email communication to the Complainants providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amended Complaint on October 27, 2015.
The Center verified that the Complaint together with the amended Complaint (collectively the "Complaint") satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 27, 2015. In accordance with the Rules, paragraph 5, the due date for Response was set as November 16, 2015. The Respondent did not submit any response. Accordingly, on November 17, 2015, the Center notified the parties of the Respondent's default.
On November 25, 2015, the Center appointed Peter L. Michaelson as the sole panelist in this matter. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
As reflected in the registration record for the disputed domain name in the WhoIs database (a copy of the record appears in Annex A to the Complaint), the disputed domain name <cmegrroup.com> was registered on October 7, 2015 and is due to expire on October 7, 2016.
This mark is registered for use in connection with: "Computer software for use in financial trading, financial exchange, financial information and market, and financial clearing services; computer software for use in trading, clearing, confirmation, and financial trading risk management for exchange market transactions in the field of futures, options, swaps, and other derivative contracts; computer software for use in authenticating, facilitating, matching, processing, clearing, and submitting trade data, exchanging of trading transaction details, and management of the overall trading lifecycle; downloadable computer software for use in financial trading, financial exchange, financial information and market data, and financial clearing services; downloadable computer software for use in authenticating, facilitating, matching, processing, clearing, and submitting trade data, exchanging of trading transaction details, and management of the overall trading lifecycle", all in international class 9; "Financial exchange services; monetary exchange services; commodities exchange services; futures exchange services; financial information services; financial clearing services; providing exchange markets for trading, clearing, confirmation and financial trading risk management in the field of futures, options, swaps, and other derivatives contracts; conducting commodities, securities, monetary, and financial instrument exchange and clearing services; electronic financial trading services; electronic financial trading, namely, trading of commodities, stocks, futures, options, swaps, securities, equities and other derivative contracts; financial information provided by electronic means; providing on-demand and real-time financial information; financial services in the field of market data distribution, namely, market data reporting services and account management services; providing information in the field of financial stock, derivative, security and equity market data", all in international class 36; and "Providing temporary on-line use of non-downloadable software for use in trading, clearing, confirmation, and financial trading risk management for exchange market transactions in the field of futures, options, swaps, and other derivative contracts; platform as a service (paas) featuring computer software platform for authenticating, facilitating, matching, processing, clearing, and submitting trade data, exchanging of trading transaction details, and management of the overall trading lifecycle", all in international class 42. The registration indicates that both first use of the mark in conjunction with these goods and services and first use in commerce commenced as of May 31, 2010.
This mark is registered for use in connection with: "Conducting commodities, securities, monetary and financial instruments exchange services" in international class 36. The registration indicates that both first use of the mark in conjunction with these services and first use in commerce commenced as of July 17, 2007.
This mark is registered for use in connection with: "Computer hardware and software for use in providing financial exchange services" in international class 9, and "Providing temporary use of non-downloadable software for use in providing financial exchange services" in international class 42. The registration indicates that both first use of the mark in conjunction with these goods and services and first use in commerce commenced as of August 21, 2003.
This mark is registered for use in connection with: "Conducting a security, mercantile, commodity and monetary exchange and providing services connected therewith" in international class 36. The registration indicates that both first use of the mark in conjunction with these services and first use in commerce commenced as of December 31, 1919.
The Complainant CME Group is a large and diverse financial exchange dating back to 1848. It offers futures and options in various major asset classes, such as metals, commodities, foreign exchange, energy, and other products through four exchanges: Chicago Mercantile Exchange (CME), Chicago Board of Trade (CBOT), Commodity Exchange (COMEX), and New York Mercantile Exchange (NYMEX). CME Group is the parent company to Complainant CME and has been using the name CME GROUP since its formation in 2007.
CME is one of the world's large financial institutions. Originally founded in 1898, CME began using the mark CME in 1919. For more than one hundred years, traders, financial institutions, investors, corporations and governments have used and continue to use CME for their financial and risk management services. Various excerpts taken from the Complainants' website at <cmegroup.com> regarding the Complainant CME and its business activities appear in Annex C to the Complaint. CME's operations extend globally with offices in the US, Canada, Brazil, United Kingdom of Great Britain and Northern Ireland, Singapore, Hong Kong, China, Republic of Korea, India and Japan (as indicated by copies of further materials from the Complainants' website which appear in Annex D to the Complaint). In 2014, the Complainants and their related entities generated revenues in excess of USD 3.1 billion. During that year, more than 3.5 billion contracts were traded through the Complainants' exchanges with a notional value of over USD 1000 trillion. A copy of the Complainants' 2014 annual report appears in Annex C to the Complaint.
The Complainants annually expend millions of US dollars to promote and advertise the services provided under their Marks.
Recently, the Complainants learned of the registration of the disputed domain name which constitutes a misspelling of the Complainants' mark CME GROUP. While the Respondent does not currently maintain an active website resolvable through that name, the Respondent used the name as an address of an email account in an effort to impersonate both the Complainants and their chief executive officer (CEO),. A hard-copy printout of a fraudulent message containing this address which the Respondent directed on October 8, 2015 to the legitimate address for the Complainants' CEO appears in Annex I to the Complaint. The fraudulent message was sent as a phishing attempt to illicitly extract confidential personal information and contacts from CME and the Complainants' CEO.
On October 9, 2015, the Complainants, through their counsel, sent a cease and desist letter (a copy of which appears in Annex J to the Complaint) to the Respondent Domains by Proxy (at the time the Complainants did not know the true identity of the Respondent Registrant) demanding, inter alia, that it cease use of the disputed domain name and transfer it to the Complainants. The Complainants did not receive any response to the letter.
The Complainants contend that the disputed domain name is confusingly similar to their Marks.
Specifically, the disputed domain name contains an intentional misspelling of the Complainants' mark CME GROUP as "cmegrroup" (note the double "r"), as well as the Complainants' mark CME itself to which the misspelled word "grroup" has been appended. Either way, the misspelling is incapable of adding sufficient distinctiveness whatsoever to the disputed domain name to mitigate any resulting user confusion between that name and the Complainants' Marks.
Hence, the Complainants believe that they have satisfied the confusing similarity/identity requirement in paragraph 4(a)(i) of the Policy.
The Complainants contend that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy.
Specifically, the Respondent is not affiliated or connected with the Complainants and has never been licensed or authorized to use any of the Complainants' Marks or to register a domain name containing any of those Marks.
There is no indication that the Respondent has used or has made demonstrable preparations to use or even has any intention to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. In that regard, the only use which the Respondent has made of the disputed domain name is within an address of an email message designed, as part of a phishing attempt, to illicitly extract confidential personal information and contacts from the Complainants and their CEO. Such a use does not constitute a bona fide offering of goods or services.
Further, the Respondent is not commonly known by any of the Complainants' Marks nor could it be by virtue of the exclusive trademark rights residing in the Complainants – rights that existed well before the Respondent registered the disputed domain name.
Lastly, there is no evidence that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain. Perpetrating a fraud through use of the name, as the Respondent is doing, is clearly not such a use.
The Complainants also contend, for various reasons, that the Respondent has registered and is using the disputed domain name in bad faith in violation of paragraph 4(a)(iii) of the Policy.
Specifically, the Respondent engaged in typosquatting which is per se bad faith. Given the reputation which the Complainants had established in their mark CME, which dates back nearly a century, prior to the date on which the Respondent registered the disputed domain name, the Respondent knew or should have known of the Complainants and their exclusive rights in the Marks prior to having registered the disputed domain name. In spite of that knowledge, the Respondent intentionally registered the disputed domain name containing a misspelled variant of the Complainants' mark CME GROUP with the express purpose of using that name, through email phishing, to illicitly extract, by deception, personal information and contact data from the Complainants and their CEO, which it then actually attempted to do. Using a domain name to undertake identity theft or other nefarious activities, such as phishing, constitutes bad faith use.
The Respondent also used a privacy shield to screen its identity and, by so doing, precluded the Complainants from determining whether the Respondent has engaged in a pattern of registering domain names to prevent their corresponding rights holder from reflecting any of its marks in a domain name and submitting evidence of that action.
In view of the lack of a Response filed by the Respondent as required under paragraph 5 of the Rules, this proceeding has proceeded by way of default. Hence, under paragraphs 5(e), 14(a) and 15(a) of the Rules, the Panel is directed to decide this administrative proceeding on the basis of the Complainants' undisputed factual representations.
The Panel finds that the disputed domain name is confusingly similar to the Complainants' Marks.
From a simple comparison of the disputed domain name to the Complainants' mark CME GROUP, no doubt exists that the disputed domain name is confusingly similar to it. The name consists of a misspelled variant of the mark to which the generic Top-Level Domain ("gTLD") ".com" has been appended, with the addition of the gTLD being irrelevant in this case in assessing confusing similarity or identity under paragraph 4(a)(i) of the Policy and thus ignored.
It is now very well-established in UDRP precedent, including numerous decisions previously rendered by this Panel, that a minor variation to a mark is usually insufficient in and of itself, when used in forming a domain name that results from modifying the mark, to confer requisite and sufficient distinctiveness to that name to avoid user confusion. Here, the Respondent's misspelling of the Complainants' mark CME GROUP as "cmegrroup" clearly resulted in such a minor variation. See, e.g., Cummins Inc. v. Jamie Lent, WIPO Case No. D2015-0188; Staatliche Porzellan-Manufaktur Meissen GmbH v. Buy Meissen, WIPO Case No. D2013-1687; Forideas Pty Limited v. Movember Organization, WIPO Case No. D2013-1385; AlgaeCal Inc. v. AlgaeCal Fraud, WIPO Case No. D2013-1248; General Motors LLC v. Carol Schadt, WIPO Case No. D2012-2106; National Westminster Bank plc v. Steve Mart, WIPO Case No. D2012-1711; Tommy Bahama Group, Inc. v. Berno Group International, WIPO Case No. D2012-0531; National Association of Realtors v. Hammerberg & Associates, Inc., WIPO Case No. D2012-0075; Space Needle LLC v. Erik Olson, WIPO Case No. D2011-0931; Oakley, Inc. v. Kate Elsberry, Elsberry Castro, WIPO Case No. D2009-1286; Clearwire Legacy, LLC v. Leon Ganesh, WIPO Case No. D2010-0148; Burberry Limited v. Domain Admin , WIPO Case No. D2009-0703; Krispy Kreme Doughnuts, Inc. v. John Sharp, WIPO Case No. D2009-0099; MasterCard International Incorporated v. Global Prepaid, WIPO Case No. D2008-2008; HRB Innovations Inc., Express Tax Service Inc. v. Calvin Brown, WIPO Case No. D2008-1072; Dreamworks Animation, LLC v. Creahq, Mike Furlong, WIPO Case No. D2008-0505; Marvel Manufacturing Company Inc. v. Koba Internet Sales, LP, WIPO Case No. D2008-0265; MySpace, Inc. v. Edwin De Jesus, EDJ Associates Inc., WIPO Case No. D2007-1878; BlackRock, Inc. v. blackrockfinancialservices.com, WIPO Case No. D2007-1627; F. Hoffmann-La Roche AG v. Transliner Consultants, WIPO Case No. D2007-1359; National Football League v. Peter Blucher d/b/a BluTech Tickets, WIPO Case No. D2007-1064; Toilets.com, Inc. v. Rons Porta Johns, WIPO Case No. D2007-0952; Associated Bank Corp. v. Texas International Property Associates, WIPO Case No. D2007-0334; Gerber Childrenswear Inc. v. David Webb, WIPO Case No. D2007-0317; SPX Corporation v. Hevun Diversified Corporation, NAF Claim No. 791657; Google Inc. v. Jennifer Burns, NAF Claim No. 726096; The Cheesecake Factory Inc. and The Cheesecake Factory Assets Co., LLC v. Say Cheesecake, WIPO Case No. D2005-0766; Napster, Inc. v. Giovanni Vinscani, WIPO Case No. D2005-0531; Caesars Entertainment, Inc. v. Nova Internet Inc., WIPO Case No. D2005-0411; Lockheed Martin Corporation v. The Skunkworx Custom Cycle, WIPO Case No. D2004-0824; Lockheed Martin Corporation v. Deborah Teramani, WIPO Case No. D2004-0836; National Collegiate Athletic Association v. Dusty Brown, WIPO Case No. D2004-0491; and National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainants' Marks. Hence, the Complainants have satisfied its burden under paragraph 4(a)(i) of the Policy.
The Respondent is not actively using the disputed domain name to resolve to an operational website and the record before this Panel does not reflect any demonstrable preparations to do so which the Respondent has made prior to receiving notice of this dispute. Furthermore, the Respondent's use of the disputed domain name as part of an email phishing scheme to illicitly obtain, by deception, confidential user information does not, in any manner, constitute a bona fide offering of goods or services. Accordingly, the Respondent's use of the disputed domain name does not quality under paragraph 4(c)(i) of the Policy.
Further, the Complainants have never authorized the Respondent to utilize any of the Complainants' Marks nor do the Complainants have any relationship or association whatsoever with the Respondent.
The record before the Panel is simply devoid of any evidence which proves that the Respondent actually acquired any recognition in the marketplace to become commonly known by the disputed domain name or a name similar to it. Given the exclusive trademark rights that reside in the Complainants and the substantial reputation now inherent in their Marks, the Respondent could not legitimately acquire any public association between itself and the Complainants' Marks or even any mark similar thereto, at least for the goods and services provided by the Complainants under their marks. This is so in light of the Complainants' exclusive trademark rights which date back to 1919 in connection with the mark CME and the extensive reputation which that mark and the CME GROUP marks have long since acquired – which greatly predate the date, October 7, 2015, when the Respondent registered the disputed domain name. See, e.g., Philip Morris USA Inc. v. Daniele Kanai, iKiss LLC, WIPO Case No. D2015-1527; Valero Energy Corporation and Valero Marketing and Supply Company v. Lisa Katz, Domain Protection LLC / Domain Hostmaster, Customer ID: 62520014085963, WIPO Case No. D2015-0787; Cummins, Staatliche Porzellan-Manufaktur Meissen GmbH, Forideas, National Westminster, Tommy Bahama, Space Needle, Oakley, Burberry, HRB Innovations and MySpace, all cited supra;andGeneral Motors LLC v. Carol Schadt, WIPO Case No. D2012-2106. As such, the Respondent could not likely become commonly known by the disputed domain name or the Complainants' Marks for any of the goods and services which are either identical or sufficiently similar to those listed on the Complainants' trademark registrations or with which the Respondent uses its marks without infringing on the exclusive trademark rights of the Complainants. Hence, the Respondent does not fall within paragraph 4(c)(ii) of the Policy.
There can simply be no question that the Respondent was well aware of the Complainants, their Marks and the Complainants' exclusive rights in those Marks, and the reputation of those Marks when the Respondent registered the disputed domain name. Yet, in spite of that knowledge, the Respondent intentionally registered the disputed domain name as a vehicle to deceive users, as part of a phishing scheme, through which the Respondent deliberately caused confusion with those marks and, in so doing, attempted to deceive those users into believing they were transacting with the Complainants and, as such, would provide them with confidential user information.
Lastly, as the Respondent's illicit use of the disputed domain name clearly does not constitute either a noncommercial or fair use under paragraph 4(c)(iii) of the Policy.
The Panel finds that the Respondent's actions, with respect to the disputed domain name, constitute bad faith registration and use.
It is indisputable that the Respondent was well aware of the Complainants, their reputation, their CME and CME GROUP Marks and the exclusive rights which the Complainants had in those Marks when the Respondent registered the disputed domain name. Yet, in spite of that knowledge and in the absence of any authority to do so from the Complainants, the Respondent intentionally chose and registered the disputed domain name, which is a commonly misspelled variant of the mark CME GROUP, for its potential to cause confusion with those Marks. Relying on that confusion, the Respondent then used the disputed domain name as part of its email address in a phishing scheme designed to deliberately deceive Internet users into believing they were transacting with the Complainants when, in actuality, they were not and while, in the course of so doing, providing their confidential user information to the Respondent to their eventual detriment, likely resulting in some form of identity theft.
While the Respondent has not yet used the disputed domain name to resolve to an operational website, numerous prior UDRP cases have recognized the use of email address associated with the disputed domain name to perpetrate a fraudulent scheme constitutes use of the domain name in bad faith, even if the domain name does not resolve to an active website. See, i.e., F. Hoffmann-La Roche AG v. Registration Private, Domains By Proxy, LLC / Name Redacted / Name Redacted, WIPO Case No. D2015-1623; W.W. Grainger, Inc. v. Name Redacted, WIPO Case No. D2015-1500.
It is clear to this Panel, given the inclusive nature of the Policy, that any use of a domain name, whether in conjunction with a website, an address used in an email system or any other instrumentality connected to the Internet, which employs that name as a component of an Internet address of a recipient (regardless of the specific nature of that recipient, i.e., whether it is a server of any sort or other addressable device or process), for communicating with an Internet user will suffice as a "use" susceptible of inclusion within the ambit of this paragraph. Thus, the use of the disputed domain name by the Respondent, though apparently confined to an address of an email account implemented by the Respondent on a third-party email server (provided by Google), is sufficient to fall within the purview of this paragraph. As such, the Respondent's use of the name as part of its phishing scheme reflects bad faith under the general provisions of paragraph 4(a)(iii).
Thus, the Panel concludes that the Complainants have provided sufficient proof of their allegations, with respect to the disputed domain name, to establish a case under paragraph 4(a) of the Policy upon which the relief it now seeks can be granted.
Accordingly, under paragraphs 4(i) of the Policy and 15 of the Rules, the Panel grants the relief sought by the Complainants. The disputed domain name <cmegrroup.com> is to be transferred to the Complainants.
1 As the Complainants assert, the Panel notes that "Phupinder Gill" is the name of the Complainants' CEO and may not reflect the true identity of the registrant of the disputed domain name.

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Conflict Minerals Regulation supply chain due diligence, adopted (enters into force 2021).
EU Commission Action Plan on Financing Sustainable Growth to examine due diligence requirements for corporate boards (2018).
EU Fundamental Rights Agency opinion calls for imposing due diligence obligations, including for parent companies (2017).
European Parliament adopts different reports and resolutions calling for mandatory HRDD (2016, 2017).
Green Card issued by eight national parliaments calling for EU legislative action (2016).
EU Council Conclusions on business and human rights (2016).
Council of Europe Recommendation to Member States to introduce mandatory HRDD where risks are significant, ensure civil liability, and allow passive joinder of parties (2016).
Timber Regulation mandatory due diligence system, adopted (entered into force 2013).
Joint Standing Committee on Foreign Affairs, Defence and Trade of the Australian Parliament released the results of its inquiry into the establishment of a Modern Slavery Act in Australia entitled "Hidden in Plain Sight: An inquiry into establishing a Modern Slavery Act in Australia", which recommends reporting on due diligence as a first step and to consider further due diligence meansures in a review in three years time (2017).
Choc v. Hudbay Minerals Inc.: Ontario Superior Court permitted the claims to proceed on the basis that it was not "plain and obvious" that Hudbay did not owe a duty of care to the plaintiff (ongoing).
Araya v. Nevsun Resources: Will be heard by Supreme Court of Canada in January 2019.
Garcia v. Tahoe Resources: British Columbia Court of Appeal allowed case to go trial (2017, ongoing).
Yaiguaje v. Chevron Corporation: Plaintiffs have sought leave to appeal before Supreme Court of Canada.
The #ykkösketjuun campaign calls for mandatory human rights due diligence legislation.
Vinci case: criminal liability for parent company (ongoing).
Duty of vigilance law enshrines a broad mandatory HRDD regime and general liability principles in case of harm (entered into force 2017).
National Action Plan calls for promoting the duty of vigilance law globally (2017).
Ikebiri Community v. ENI: Court examines parent company’s and subsidiary’s liability (ongoing).
Italian Government’s National Action Plan announces a review of commercial and civil law to assess the introduction of a “duty of care” or due diligence for companies (2016).
Dutch Child Labour Due Diligence Bill (2017, ongoing) proposes issue specific due diligence regime for companies selling in the Dutch market.
Akpan and Other v. Shell (2015, ongoing) decision pending as to whether Dutch parent liability can be held liable for acts and omissions of Nigerian subsidiary.
Arica v. Boliden: Chilean claimants allege that they suffered harm, including adverse health and environmental impacts, as a result of the negligent dumping and mismanagement of toxic waste in Chile by Swedish company Boliden. Ruling handed down March 8, 2018 in favour of the defendants, but the claimants intend to appeal.
Swedish Agency for Public Management report (2018) recommends Government implement Human Rights Due Diligence obligations for Swedish companies.
Responsible Business Initiative (RBI) proposes a general mandatory corporate HRDD scheme and parent company liability (under debate).
Parliamentary initiative for mandatory HRDD gives a counter-proposal to the RBI (2017, under debate).
Government announces that it will consider regulation on companies' respect for human rights if progress is not satisfactory in the coming years (2017).
Law on private and military security companies (PMSC) is a sector-focused mandatory HRDD (entered into force 2015).
Government states that principle of separate legal entities must not be used to circumvent human rights and environmental standards (2014).
Public Prosecutor v. Von Roll: court imposes due diligence duty on company executive (1996).
This map shows legislative measures, judicial proceedings, authoritative guidance, institutional recommendations, reports, and policy statements which aim to embed companies’ responsibility to respect human rights across their global operations into law. The map does not, nor does it intend to, present a comprehensive compilation of all existing developments in this field. Its purpose is to highlight only mandatory measures, relevant judicial proceedings and decisions, and actionable political commitments. In this way, it demonstrates the growing acceptance of mandatory human rights due diligence (HRDD) and judicial solutions to holding parent companies in home states accountable for human rights abuses throughout their operations.

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Can I recoup my attorney's fees?
A common question that arises in the context of business and construction litigation is whether attorney's fees are recoverable from the adverse, losing party.
The simple answer is that, as a general rule, under long-standing Louisiana law, attorney's fees are not allowed except where authorized by statute or contract. See, e.g., Maloney v. Oak Builders, Inc., 235 So.2d 386, 390 (La. 1970). The rule in Louisiana is similar to the so-called "American rule," where each party pays its own attorney's fees and a prevailing party is not permitted to collect attorneys' fees from the losing litigant. Alyeska Pipeline Serv. Co. v. Wildness Soc., 421 U.S. 240, 247 n. 18 (1975) (internal citation omitted).
Whether attorney's fees are allowed when authorized by contract is relatively straightforward. In Louisiana, "[p]arties are free to contract for any object that is lawful, possible, and determined or determinable." La. Civ. Code art. 1971. Less straightforward but still routinely enforced by Louisiana courts are unilateral attorney's fees clauses, where only one party is entitled to attorney's fees upon victory.
Attorney's fees are also authorized under numerous Louisiana statutes and code articles. For example, attorney's fees are available with respect to a suit on open account (La. Rev. Stat. § 9:2781), a claim under Louisiana Unfair Trade Practice and Consumer Protection Law (La. Rev. Stat. § 51:1409), fraud (La. Civ. Code. art. 1958), and redhibition (La. Civ. Code art. 2545), to name just a few.
While attorney's fees are not automatically available when prevailing in litigation (as they sometimes are in non-U.S. jurisdictions), it is important to consider including attorney's fees provisions in contracts, if applicable, and to fully investigate whether your claim or defense falls within one of the statutory exceptions to the general rule.


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abbreviatus, Aphthalmichthys Bleeker [P.] 1863:163 [Nederlandsch Tijdschrift voor de Dierkunde v. 1; ref. 17003] Prigi, Java; Batu; Manado, Sulawesi; Ternata; Ambon, Indonesia. Syntypes: (12) BMNH 1867.11.28.312 (1) no locality (Bleeker coll.); RMNH 7183 (some of 12). •Valid as Moringua abbreviata (Bleeker 1863) -- (Asano in Masuda et al. 1984:21 [ref. 6441], Hutchins 2001:16 [ref. 25847], Lobel & Lobel 2004:67 [ref. 27576], Paxton et al. 2006:239 [ref. 28995], Zhang et al. 2010:223 [ref. 31511], Ho et al. 2015:150 [ref. 34130], Motomura et al. 2017:27 [ref. 35490]). Current status: Valid as Moringua abbreviata (Bleeker 1863). Moringuidae. Distribution: Western Pacific. Habitat: marine.
amphomelaena, Rataboura Fowler [H. W.] 1938:190, Pl. 11 (fig. 25) [Monographs of the Academy of Natural Sciences of Philadelphia No. 2; ref. 1428] Kiritimati [formerly Christmas Island], Line Islands. Holotype: ANSP 68356. Paratypes: ANSP 68357-64 (8), 68365 (1, c&s). Type catalog: Böhlke 1984:127 [ref. 13621]. •Questionably a synonym of Moringua raitaborua (Hamilton 1922) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
anaelisae, Leptocephalus Tommasi [L. R.] 1960:93, Fig. 3 [Neotropica (La Plata) v. 6 (no. 21); ref. 11955] Brazil, 2°27.5'N, 44°02.5'W, vertical tow, depth 23-125 meters. Holotype (unique): (lost). •Synonym of Neoconger mucronatus Girard 1858 -- (Smith 1989:60 [ref. 13285], Smith 1989:701 [ref. 13285], Melo & Caires 2016:2 [ref. 34981]). Current status: Synonym of Neoconger mucronatus Girard 1858. Moringuidae. Habitat: marine.
arundinaceus, Ptyobranchus McClelland [J.] 1844:200, 204, 221, Pl. 10 (fig. 1) [Calcutta Journal of Natural History v. 5 (no. 18); ref. 2928] Bengal, India. No types known. •Valid as Moringua arundinacea (McClelland 1844) -- (Talwar & Jhingran 1991:76 [ref. 20764]). •Declared a nomen oblitum by Castle 1968; in the synonymy of Moringua guthriana (McClelland 1844) -- (Kottelat 2013:39 [ref. 32989]). Current status: Synonym of Moringua guthriana (McClelland 1844). Moringuidae. Habitat: brackish.
bahamensis, Anguillichthys Mowbray [L. L.] in Breder 1927:10, Fig. 5 [Bulletin of the Bingham Oceanographic Collection Yale University v. 1 (art. 1); ref. 635] Green Cay, Bahamas. Holotype: YPM 34. Paratypes: YPM 35 (1). Type catalog: Moore & Boardman 1991:19 [ref. 16741]. •Synonym of Moringua edwardsi (Jordan & Bollman 1889) -- (Smith 1989:68 [ref. 13285]). Current status: Synonym of Moringua edwardsi (Jordan & Bollman 1889). Moringuidae. Habitat: brackish, marine.
bicolor, Moringua Kaup [J. J.] 1856:70 [Archiv für Naturgeschichte v. 22 (pt. 1); ref. 2572] Timor Island, southern Malay Archipelago. Holotype: RMNH 3687. Also in Kaup 1856:107 [ref. 2573]. •Valid as Moringua bicolor Kaup 1856 -- (Aizawa 1992:2 [ref. 24308], Nakabo 2000:193 [ref. 25086], Nakabo 2002:193 [ref. 26001], Allen & Erdmann 2012:71 [ref. 31980], Fricke et al. 2018:31 [ref. 35805]). Current status: Valid as Moringua bicolor Kaup 1856. Moringuidae. Distribution: Indo-Pacific: Madagascar east to Fiji, north to Ryukyu Islands, Habitat: marine.
boekei, Moringua Metzelaar [J.] 1919:17, Fig. 8 [Report on the fishes; ref. 2982] Piescadera Bay, Curaçao. Holotype (unique): ZMA 112739. Species treated as "Moningua spec. (nov.)" in heading and figure caption, but provisionally named as above on p. 18. •Synonym of Moringua edwardsi (Jordan & Bollman 1889) -- (Smith 1989:68 [ref. 13285]). Current status: Synonym of Moringua edwardsi (Jordan & Bollman 1889). Moringuidae. Habitat: brackish, marine.
brevis, Ptyobranchus McClelland [J.] 1844:202, 204, 223 [Calcutta Journal of Natural History v. 5 (no. 18); ref. 2928] Probably Bengal, India. No types known. •Synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
cagayana, Moringua Seale [A.] 1910:493 [The Philippine Journal of Science Section A v. 4 (no. 6) (for 1909); ref. 4000] Cagayan, Mindanao, Philippines. Holotype (unique): BSMP 1621 (apparently destroyed). •Synonym of Moringua ferruginea Bliss 1883. •Synonym of Moringua guthriana (McClelland 1844) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua guthriana (McClelland 1844). Moringuidae. Habitat: marine.
caribbeus, Aphthalmichthys Gill [T. N.] & Smith [H. M.] 1900:974 [Science (new series) v. 11 (no. 286); ref. 14729] San Geronimo, Near San Juan, north shore of Puerto Rico. Holotype (unique): USNM 49726. Type catalog: Smith 1994:13 [ref. 21917]. •Synonym of Moringua edwardsi (Jordan & Bollman 1889) -- (Smith 1989:67 [ref. 13285]). Current status: Synonym of Moringua edwardsi (Jordan & Bollman 1889). Moringuidae. Habitat: brackish, marine.
diptychus, Leptocephalus Eigenmann [C. H.] & Kennedy [C. H.] 1901:831, Fig. [Science (Series 2) v. 13 (no. 334); ref. 11072] New Providence Island, Bahamas, surface (nightlight). Holotype: USNM 49753. Paratypes: USNM 49754 (1). •Synonym of Moringua edwardsi (Jordan & Bollman 1889) -- (Smith 1989:67 [ref. 13285], Smith 1989:699 [ref. 13285]). Current status: Synonym of Moringua edwardsi (Jordan & Bollman 1889). Moringuidae. Habitat: brackish, marine.
edwardsi, Stilbiscus Jordan [D. S.] & Bollman [C. H.] 1889:549 [Proceedings of the United States National Museum v. 11 (no. 752); ref. 2432] Green Turtle Cay, Bahamas. Holotype (unique): USNM 41735. Type catalog: Smith 1994:14 [ref. 21917]. •Valid as Moringua edwardsi (Jordan & Bollman 1889) -- (Robins & Ray 1986:50 [ref. 23100], Smith 1989:67 [ref. 13285], Smith 1989:699 [ref. 13285], Cervigón 1991:30 [ref. 24472], McEachran & Fechhelm 1998:224 [ref. 23897], Aguilera 1998:46 [ref. 24221], Smith-Vaniz et al. 1999:129 [ref. 25013], Schmitter-Soto et al. 2000:147 [ref. 27754], Gasparini & Floeter 2001:1643 [ref. 25634], Collette et al. 2003:98 [ref. 26784], Menezes in Menezes et al. 2003:32 [ref. 27192], Smith 2003:696 [ref. 26989], Smith et al. 2003:7 [ref. 27621], Nelson et al. 2004:60 [ref. 27807], Randall 2007:71 [ref. 30952], Page et al. 2013:60 [ref. 32708], Smith-Vaniz & Jelks 2014:22 [ref. 33341], Pinheiro et al. 2015:4 [ref. 34324]). Current status: Valid as Moringua edwardsi (Jordan & Bollman 1889). Moringuidae. Distribution: Western Atlantic. Habitat: brackish, marine.
erythreus, Ptyobranchus McClelland [J.] 1844:201, 203, 223, Pl. 9 (fig. 3) [Calcutta Journal of Natural History v. 5 (no. 18); ref. 2928] Bengal, India. Syntypes: SMF 261 (1), 905 (6). •Synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
ferruginea, Moringua Bliss [R.] 1883:57 [Transactions of the Royal Society of Arts and Sciences of Mauritius (N. S.) v. 13; ref. 16966] Mauritius, Mascarenes, southwestern Indian Ocean. Holotype (unique): MCZ 6156. •Synonym of Moringua guthriana (McClelland 1844) -- (Kottelat 2013:40 [ref. 32989]). •Valid as Moringua ferruginea Bliss 1883 -- (Castle 1986:187 [ref. 5644], Paxton et al. 1989:111 [ref. 12442], Pequeño 1989:24 [ref. 14125], Winterbottom et al. 1989:5 [ref. 13251], Randall et al. 1990:33 [ref. 15987], Larson & Williams 1997:346 [ref. 23967], Randall et al. 1997:33 [ref. 25919], Myers 1999:41 [ref. 23965], Fricke 1999:38 [ref. 24106], Nakabo 2000:193 [ref. 25086], Randall & Earle 2000:6 [ref. 25806], Hutchins 2001:16 [ref. 25847], Nakabo 2002:193 [ref. 26001], Allen & Adrim 2003:22 [ref. 26830], Myers & Donaldson 2003:610 [ref. 27495], Heemstra et al. 2004:3317 [ref. 27945] with question, Mundy 2005:111 [ref. 28379], Paxton et al. 2006:239 [ref. 28995], Fricke et al. 2009:14 [ref. 30213], Fricke et al. 2011:348 [ref. 31242], Allen & Erdmann 2012:71 [ref. 31980], Delrieu-Trottin et al. 2015:4 [ref. 33988], Motomura et al. 2017:27 [ref. 35490]). Current status: Valid as Moringua ferruginea Bliss 1883. Moringuidae. Distribution: Indo-West Pacific: East Africa and Mascarenes east to Hawaiian Islands and Easter Island, north to Ryukyu Islands, south to Western Australia, and southern Great Barrier Reef (Australia). Habitat: marine.
floresiana, Moringua Weber [M.] & de Beaufort [L. F.] 1916:340, Fig. 167 [Fishes Indo-Australian Archipelago v. 3; ref. 4604] South coast of Flores Island, Lesser Sunda Islands. Syntypes: ZMA 112615 (5). Type catalog: Nijssen et al. 1982:9 [ref. 19236]. •Questionably a synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
gangeticus, Aphthalmichthys Fowler [H. W.] 1912:32, Fig. 9 [Proceedings of the Academy of Natural Sciences of Philadelphia v. 64; ref. 1385] Ganges River, India. Holotype: ANSP 1086 (broken). Type catalog: Böhlke 1984:127 [ref. 13621]. •Questionably a synonym of Moringua arundinacea (McClelland 1844) -- (Talwar & Jhingran 1991:76 [ref. 20764] but see footnote). Current status: Uncertain as Moringua arundinacea (McClelland 1844). Moringuidae. Habitat: brackish.
gracilis, Ptyobranchus McClelland [J.] 1844:202, 204, 223, Pl. 9 (fig. 6) [Calcutta Journal of Natural History v. 5 (no. 18); ref. 2928] Bengal, India. Syntypes: SMF 972 (1). •Synonym or Moringua raitaborua (Hamilton 1922) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
guthrianus, Ptyobranchus McClelland [J.] 1844:201, 204, 222, Pl. 10 (fig. 2) [Calcutta Journal of Natural History v. 5 (no. 18); ref. 2928] Benga, India. Syntypes: SMF 910 (1), ?ZMB 4043 (1). Castel 1968:15 gave precedence to P. arundinaceus, but at the same time declared it a nomen oblitum. •Valid as Moringua guthriana (McClelland 1844)-- (Kottelat 2013:39 [ref. 32989], Miesen et al. 2016:81 [ref. 34492]). Current status: Valid as Moringua guthriana (McClelland 1844). Moringuidae. Distribution: India. Habitat: freshwater, brackish, marine.
hamiltonii, Rataboura Gray [J. E.] 1831:9 [Zoological Miscellany 1831; ref. 1879] Holotype: No types known. An unnecessary replacement name for Moringua raitaborua (Hamilton 1822). •Synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
hardwickii, Rataboura Gray [J. E.] 1831:no page number, Pl. 95 (fig. 4) [Illustrations of Indian zoology; ref. 1878] Ganges, India. Holotype: lost. Published about 25 Jan. 1831. Also appeared in Gray 1831:9 [ref. 1879] as hamiltonii. The plate for this species was "pirated" from Hamilton's unpublished illustrations -- see McClelland 1839:221 [ref. 2923]. •Objective synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
hawaiiensis, Moringua Snyder [J. O.] 1904:517, Pl. 3 (fig. 6) [Bulletin of the U. S. Fish Commission v. 22 ; ref. 4149] Honolulu reef, Oahu Island, Hawaiian Islands. Holotype (unique): USNM 50865. Type catalog: Smith 1994:13 [ref. 21917]. •Synonym of Moringua ferruginea Bliss 1883 or possibly valid -- (Mundy 2005:111 [ref. 28379]). •Valid as Moringua hawaiiensis Snyder 1904 -- (Randall 2007:70 [ref. 30952]). •Synonym with question as Moringua gutherina (McClelland 1844) -- (Kottelat 2013:40 [ref. 32989]). Current status: Valid as Moringua hawaiiensis Snyder 1904. Moringuidae. Distribution: Hawaiian Islands, Johnston Island and probably Easter Island and other polynesian islands. Habitat: marine.
intermedius, Aphthalmichthys Ogilby [J. D.] 1907:9 [Proceedings of the Royal Society of Queensland v. 20; ref. 3282] Northern coast of Australia (probably Darwin, Northern Territory). Holotype: MAMU (apparently lost). •Synonym of Moringua ferruginea Bliss 1883 -- (Paxton et al. 1989:111 [ref. 12442], Larson & Williams 1997:346 [ref. 23967], Paxton et al. 2006:239 [ref. 28995]). •Synonym of Moringua guthriana (McClelland 1844) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua ferruginea Bliss 1883. Moringuidae. Habitat: marine.
javanicus, Aphthalmichthys Kaup [J. J.] 1856:105, Pl. 14 (fig. 71) [Catalogue of the apodal fish in the collection of the British Museum; ref. 2573] Java, Indonesia. Syntypes: RMNH 3687 (1) or 3808 (1), BMNH (1). •Valid as Moringua javanica (Kaup 1856) -- (Asano in Masuda et al. 1984:21 [ref. 6441], Castle 1986:187 [ref. 5644], Paxton et al. 1989:111 [ref. 12442], Winterbottom et al. 1989:5 [ref. 13251], Kottelat et al. 1993:10 [ref. 23448], Quéro & Saldanha 1995:64 [ref. 22017], Myers 1999:41 [ref. 23965], Fricke 1999:39 [ref. 24106], Nakabo 2000:193 [ref. 25086], Smith in Randall & Lim 2000:584 [ref. 25122], Randall & Earle 2000:6 [ref. 25806], Hutchins 2001:16 [ref. 25847], Nakabo 2002:193 [ref. 26001], Allen & Adrim 2003:22 [ref. 26830], Heemstra et al. 2004:3317 [ref. 27945], Paxton et al. 2006:239 [ref. 28995], Fricke et al. 2009:14 [ref. 30213], Fricke et al. 2011:348 [ref. 31242], Allen & Erdmann 2012:71 [ref. 31980], Fricke et al. 2013:251 [ref. 32706], Kottelat 2013:40 [ref. 32989], Fricke et al. 2014:16 [ref. 33932], Delrieu-Trottin et al. 2015:4 [ref. 33988], Miesen et al. 2016:81 [ref. 34492], Fricke et al. 2018:32 [ref. 35805]). Current status: Valid as Moringua javanica (Kaup 1856). Moringuidae. Distribution: Indo-West Pacific: East Africa, Madagascar and Mascarenes east to Mariana Islands and Marquesas Islands, north to Ryukyu Islands, south to New Caledonia and Loyalty Islands. Habitat: brackish, marine.
latebrosa, Moringua Schultz [L. P.] in Schultz et al. 1953:95, Fig. 20a [Bulletin of the United States National Museum No. 202, v. 1; ref. 3975] Kwandang, Sulawesi, Indonesia. Holotype (unique): USNM 76772. Type catalog: Smith 1994:13 [ref. 21917]. •Synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
linearis, Moringua Gray [J. E.] 1831:no page number, Pl. 95 (fig. 3) [Illustrations of Indian zoology; ref. 1878] India: Ganges. Holotype (unique): lost. Published about 25 Jan. 1831. •Synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
lumbriciformis, Moringua Kaup [J. J.] 1856:107  [Catalogue of the apodal fish in the collection of the British Museum; ref. 2573] India. Holotype (unique): BMNH 2008.4.21.3. •Synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
lumbricoidea, Moringua Richardson [J.] 1845:113, Pl. 56 (figs. 7-11) [Ichthyology.--Part 3. The zoology of the voyage of H. M. S. Sulphur.; ref. 20575] No locality (probably China). Holotype: BMNH 2015.6.19.1 Reeves coll. •Synonym of Moringua raitaborua (Hamilton 1822)-- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
lumbricoides, Moringua Gray [J. E.] in Kaup 1856:107 [Catalogue of the apodal fish in the collection of the British Museum; ref. 2573] Not available, name mentioned in synonymy of Moringua lumbricoides of Kaup. Moringuidae.
macrocephalus, Aphthalmichthys Bleeker [P.] 1863:165 [Nederlandsch Tijdschrift voor de Dierkunde v. 1; ref. 17003] Timor Island, southern Malay Archipelago. Holotype (unique): whereabouts unknown. Bleeker specimens: BMNH 1867.11.28.276 (1) Timor. •Questionably a synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). •Valid as Moringua macrocephalus (Bleeker 1863) -- (Kuang in Pan et al. 1991:64 [ref. 23876], Zhang et al. 2010:222 [ref. 31511] as Moringua macrocephala, Ho et al. 2015:150 [ref. 34130]). Current status: Valid as Moringua macrocephalus (Bleeker 1863). Moringuidae. Distribution: Western Pacific. Habitat: freshwater, brackish.
macrochir, Moringua Bleeker [P.] 1853:124 [Natuurkundig Tijdschrift voor Nederlandsch Indië v. 4 (no. 1); ref. 16900] Ambon, Indonesia; Cauer, Sumatra. Syntypes (2): out of RMNH 7182 (1) Cauer, ?7183 (many); BMNH 1867.11.28.306 (1) Ambon. Kottelat 2013 has this under Bleeker 1855:71; with different type. •Valid as Moringua macrochir Bleeker 1853 -- (Dingerkus & Séret 1992:175 [ref. 22392], Zhang et al. 2010:221 [ref. 31511], Fricke et al. 2011:348 [ref. 31242], Allen & Erdmann 2012:71 [ref. 31980], Kottelat 2013:40 [ref. 32989], Ho et al. 2015:150 [ref. 34130] with question, Fricke et al. 2018:32 [ref. 35805]). Current status: Valid as Moringua macrochir Bleeker 1853. Moringuidae. Distribution: Indo-West Pacific: East Africa and Madagascar east to Phoenix and Line islands. Habitat: marine.
maculatus, Anguilla (Pterurus) Swainson [W.] 1839:334 [The natural history and classification v. 2; ref. 4303] Ganges, India. Holotype: lost. Based on Ham. p. 25 -- which is Hamilton 1822:25 [ref. 2031]. Unneeded new name for Muraena raitaborus Hamilton 1822. •Objective synonym of Moringua raitaborus (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: freshwater, brackish.
mayeri, Mayerina Silvester [C. F.] 1915:214 [Carnegie Institution of Washington Year Book No. 14; ref. 4027] Sand flats around mangrove swamp west of Guanica Harbor, Puerto Rico, Caribbean Sea. Holotype: PU 3073 (apparently lost). Paratypes: PU 3126 (1). Originally published as Mayerina mayeri, but later published and figured as new as Aphthalmichthys mayeri in Silvester 1918:19 [ref. 15257]. •Synonym of Moringua edwardsi (Jordan & Bollman 1889) -- (Smith 1989:67 [ref. 13285], Smith-Vaniz et al. 1999:129 [ref. 25013] in genus Aphthalmichthys). Current status: Synonym of Moringua edwardsi (Jordan & Bollman 1889). Moringuidae. Habitat: brackish, marine.
medius, Ptyobranchus McClelland [J.] 1844:223 [Calcutta Journal of Natural History v. 5 (no. 18); ref. 2928] Not available, name only; appeared under Ptyobranchus brevis as, "probably the young of P. medius." •In the synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae.
microchir, Moringua Bleeker [P.] 1853:124 [Natuurkundig Tijdschrift voor Nederlandsch Indië v. 4 (no. 1); ref. 16900] Ambon Island, Molucca Islands, Indonesia; Cauer, western Sumatra, Indonesia. Syntypes: (2) BMNH 1867.11.28.295 (1) Ambon; RMNH 7182 (1) Cauer, 7183 (many). •Valid as Moringua microchir Bleeker 1853 -- (Castle 1986:188 [ref. 5644], Paxton et al. 1989:112 [ref. 12442], Winterbottom et al. 1989:5 [ref. 13251], Kottelat et al. 1993:10 [ref. 23448], Myers 1999:41 [ref. 23965], Fricke 1999:39 [ref. 24106], Nakabo 2000:193 [ref. 25086], Allen 2000:95 [ref. 25868], Hutchins 2001:16 [ref. 25847], Nakabo 2002:193 [ref. 26001], Allen & Adrim 2003:22 [ref. 26830], Manilo & Bogorodsky 2003:S94 [ref. 27377], Myers & Donaldson 2003:610 [ref. 27495], Paxton et al. 2006:239 [ref. 28995], Fricke et al. 2011:349 [ref. 31242], Allen & Erdmann 2012:72 [ref. 31980], Kottelat 2013:40 [ref. 32989], Fricke et al. 2014:17 [ref. 33932], Miesen et al. 2016:81 [ref. 34492], Motomura et al. 2017:28 [ref. 35490], Fricke et al. 2018:32 [ref. 35805]). Current status: Valid as Moringua microchir Bleeker 1853. Moringuidae. Distribution: Indo-West Pacific: East Africa, South Africa, Seychelles, Madagascar and Mauritius (Mascarenes) east to Samoa, north to Ryukyu Islands, south to southern Great Barrier Reef (Queensland, Australia) and New Caledonia. Habitat: brackish, marine.
mucronatus, Neoconger Girard [C. F.] 1858:171 [Proceedings of the Academy of Natural Sciences of Philadelphia v. 10; ref. 1813] St. Joseph Island, Texas, U.S.A. Lectotype: USNM 861. Paralectotypes: MCZ 36006 [ex USNM 861] (1), USNM 204928 [ex USNM 861] (3). Type catalog: Smith 1994:14 [ref. 21917]. See also Girard 1859:77 [ref. 13405]. Lectotype selected by Smith & Castle 1972:200 [ref. 21919]. •Valid as Neoconger mucronatus Girard 1858 -- (Robins & Ray 1986:51 [ref. 23100], Scott & Scott 1988:80 [ref. 25518], Smith 1989:60 [ref. 13285], Smith 1989:701 [ref. 13285], McAllister 1990:46 [ref. 14674], Cervigón 1991:31 [ref. 24472], Boschung 1992:32 [ref. 23239], McEachran & Fechhelm 1998:225 [ref. 23897], Aguilera 1998:46 [ref. 24221] as mocronatus, Schmitter-Soto et al. 2000:147 [ref. 27754], Menezes in Menezes et al. 2003:32 [ref. 27192], Smith 2003:696 [ref. 26989], Nelson et al. 2004:60 [ref. 27807], Page et al. 2013:60 [ref. 32708], Melo & Caires 2016:2 [ref. 34981] with question). Current status: Valid as Neoconger mucronatus Girard 1858. Moringuidae. Distribution: Western Atlantic. Habitat: marine.
multidentatus, Ptyobranchus McClelland [J.] 1844:201, 203, 223, Pl. 9 (fig. 4) [Calcutta Journal of Natural History v. 5 (no. 18); ref. 2928] Bengal, India. No types known. Spelled multidentata on pp. 201 and 203, as multidentatus on p. 223 (the later correctly formed). •Synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
oculata, Rataboura Fowler [H. W.] 1934:278, Fig. 39 [Proceedings of the Academy of Natural Sciences of Philadelphia v. 85 (for 1933); ref. 1416] Tifu Bay, Buru Island, Molucca Islands, Indonesia. Holotype: USNM 92352. Type catalog: Smith 1994:14 [ref. 21917]. •Questionably a synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Uncertain as Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
parvidentatus, Ptyobranchus McClelland [J.] 1844:202, 203, 223, Pl. 9 (fig. 5) [Calcutta Journal of Natural History v. 5 (no. 18); ref. 2928] Bengal, India. Syntypes: SMF 963 (1). Spelled parvidentata on pp. 202 and 203, as parvidentatus on p. 223; the later correctly formed. •Synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
penni, Moringua Schultz [L. P.] in Schultz et al. 1953:96, Fig. 20b [Bulletin of the United States National Museum No. 202, v. 1; ref. 3975] Milne Bay, Papua New Guinea. Holotype: USNM 130660. Paratypes: USNM 52040 (1). Type catalog: Smith 1994:13-14 [ref. 21917]. •Valid as Moringua penni Schultz 1953 -- (Roberts 1978:26 [ref. 8886], Fricke et al. 2014:17 [ref. 33932]). •Questionably a synonym of Moringua raitaborua (Hamilton 19=822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Valid as Moringua penni Schultz 1953. Moringuidae. Distribution: Western Pacific. Habitat: brackish, marine.
raitaborua, Muraena Hamilton [F.] 1822:25, 364 [An account of the fishes found in the river Ganges; ref. 2031] Ganges River basin, India. No types known. Unpublished drawing shown in Gray, 1831, v. 1, pl. 19. •Valid as Moringua raitaborua (Hamilton 1822) -- (Ataur Rahman 1989:45 [ref. 24860] as rataboura, Talwar & Jhingran 1991:77 [ref. 20764], Kottelat et al. 1993:10 [ref. 23448], Karmakar 2000:27 [ref. 25662] as raitabarua, Ataur Rahman 2003:58 [ref. 31338], Shrestha 2008:45 [ref. 29923], Kottelat 2013:40 [ref. 32989], Miesen et al. 2016:81 [ref. 34492]). Current status: Valid as Moringua raitaborua (Hamilton 1822). Moringuidae. Distribution: Northern Indian Ocean drainages: India and Nepal and Bangladesh (and possibly China, Philippines, Indonesia, New Guinea, etc. on Kottelat 2013:40 [ref. 32989]). Habitat: freshwater, brackish, marine.
robusta, Moringua Herre [A. W. C. T.] 1923:185, Pl. 7 [Philippine Journal of Science v. 23 (no. 2); ref. 2117] Dumaguete, Oriental Negros, Philippines. Holotype (unique): BSMP 9664 (presumed destroyed). •Questionably a synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
sanchezi, Merinthichthys Howell Rivero [L.] 1934:343, Fig. 3 [Memorias de la Sociedad Cubana de Historia Natural v. 8 (no. 6); ref. 3767] Matanzas, Cuba. Holotype (unique): MCZ 33453. •Synonym of Moringua edwardsi (Jordan & Bollman 1889) -- (Smith 1989:68 [ref. 13285]). Current status: Synonym of Moringua edwardsi (Jordan & Bollman 1889). Moringuidae. Habitat: brackish, marine.
semperviridens, Moringua McCann [C.] 1967:211, Figs. 1-3 [Transactions of the Royal Society of New Zealand, Zoology v. 8 (no. 20); ref. 7975] Edge of reef flat at south end of Tauhunu Island, northern Cook Islands. Holotype (unique): NZOI 20. •Questionably a synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.
socialis, Moringua Günther [A.] 1910:406, Pl. 169 (fig. A) [Journal des Museum Godeffroy v. 6 (no. 17); ref. 14460] Society Islands. Holotype (unique): whereabouts unknown. Moringuidae. Habitat: marine.
torrei, Chrinorhinus Howell Rivero [L.] 1932:9 [Proceedings of the New England Zoölogical Club v. 13; ref. 3765] Sand banks in front of La Chorrera, Havana, Cuba. Holotype (unique): MCZ 32786. •Synonym of Neoconger mucronatus Girard 1858 -- (Smith 1989:60 [ref. 13285]). Current status: Synonym of Neoconger mucronatus Girard 1858. Moringuidae. Habitat: marine.
tuberculatus, Leptocephalus Castle [P. H. J.] 1965:131, Fig. 1 (F-H) [Transactions of the Royal Society of New Zealand, Zoology v. 7 (no. 7); ref. 9203] Manly Beach, Sydney, New South Wales, Australia. Holotype: AMS IA. 2477. Paratypes: AMS I.32237-001 [ex IA.2477] (1). •Valid as Neoconger tuberculatus (Castle 1965) -- (Paxton et al. 1989:112 [ref. 12442], Smith 1989:60 [ref. 13285], Smith 1999:1638 [ref. 24661], Paxton et al. 2006:240 [ref. 28995]). Current status: Valid as Neoconger tuberculatus (Castle 1965). Moringuidae. Distribution: New South Wales, Australia (leptocephalus larvae). Habitat: marine.
vermiformis, Neoconger Gilbert [C. H.] 1890:57 [Proceedings of the United States National Museum v. 13 (no. 797); ref. 1623] Off northwestern Mexico, Gulf of California, Mexico, 30°21'00"N, 114°25'15"W, Albatross station 3035, depth 30 fathoms. Lectotype: USNM 44292. Paralectotypes: CAS-SU 22 (3), USNM 125074 (8). Type catalog: Böhlke 1953:48-49 [ref. 12291], Smith 1994:14 [ref. 21917]. Lectotype selected by Smith & Castle 1972:200 [ref. 21919]. •Valid as Neoconger vermiformis Gilbert 1890 -- (Smith 1989:60 [ref. 13285], Bussing & López S. 1994:44 [ref. 23101], Page et al. 2013:60 [ref. 32708]). Current status: Valid as Neoconger vermiformis Gilbert 1890. Moringuidae. Distribution: Eastern Pacific. Habitat: marine.
wui, Aphthalmichthys Fang [P.-W.] 1942:80 [Bulletin de la Société Zoologique de France v. 67; ref. 13123] Foochow [Fuzhou], Fukien [Fujian], China. Holotype (unique): MNHN 1941-0121. Type catalog: Bauchot et al. 1993:97-98 [ref. 20810]. •Questionably a synonym of Moringua raitaborua (Hamilton 1822) -- (Kottelat 2013:40 [ref. 32989]). Current status: Synonym of Moringua raitaborua (Hamilton 1822). Moringuidae. Habitat: marine.


text:
BIRBROWER, MONTALBANO, CONDON & FRANK, P.C., et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; ESQ BUSINESS SERVICES, INC., Real Party in Interest.
Halley, Cornel & Lynch, Roger C. Peters, Hoge, Fenton, Jones & Appel, David P. Eby, William J. Elfving and Scott R. Mosko for Petitioners.
Latham & Watkins, Joseph A. Wheelock, Jr., and Julie V. King as Amici Curiae on behalf of Petitioners.
Hopkins & Carley, Jon Michaelson, Denise Y. Yamamoto and Robert W. Ricketson for Real Party in Interest.
Business and Professions Code section 6125 states: "No person shall practice law in California unless the person is an active member of the State Bar." fn. 1 We must decide whether an out-of-state law firm, not licensed to practice law in this state, violated section 6125 when it performed legal services in California for a California-based client under a fee agreement stipulating that California law would govern all matters in the representation.
Although we are aware of the interstate nature of modern law practice and mindful of the reality that large firms often conduct activities and serve clients in several states, we do not believe these facts excuse law firms from complying with section 6125. Contrary to the Court of Appeal, however, we do not believe the Legislature intended section 6125 to apply to those services an out-of-state firm renders in its home state. We therefore conclude that, to the extent defendant law firm Birbrower, Montalbano, Condon & Frank, P.C. (Birbrower), practiced law in California without a license, it engaged in the unauthorized practice of law in this state. (§ 6125.) We also conclude that Birbrower's fee agreement with real party in interest ESQ Business Services, Inc. (ESQ), is invalid to the extent it authorizes payment for the substantial legal services Birbrower performed in California. If, however, Birbrower can show it generated fees under its agreement for limited services it performed in New York, and it earned those fees under the otherwise invalid fee agreement, it may, on remand, present to the trial court evidence justifying its recovery of fees for those New York services. Conversely, ESQ will have an opportunity to produce contrary evidence. Accordingly, we affirm the Court of Appeal judgment in part and reverse it in part, remanding for further proceedings consistent with this opinion.
The facts with respect to the unauthorized practice of law question are essentially undisputed. Birbrower is a professional law corporation incorporated in New York, with its principal place of business in New York. During 1992 and 1993, Birbrower attorneys, defendants Kevin F. Hobbs and Thomas A. Condon (Hobbs and Condon), performed substantial work in California relating to the law firm's representation of ESQ. Neither Hobbs nor Condon has ever been licensed to practice law in California. None of Birbrower's attorneys were licensed to practice law in California during Birbrower's ESQ representation.
ESQ is a California corporation with its principal place of business in Santa Clara County. In July 1992, the parties negotiated and executed the fee [17 Cal. 4th 125] agreement in New York, providing that Birbrower would perform legal services for ESQ, including "All matters pertaining to the investigation of and prosecution of all claims and causes of action against Tandem Computers Incorporated [Tandem]." The "claims and causes of action" against Tandem, a Delaware corporation with its principal place of business in Santa Clara County, California, related to a software development and marketing contract between Tandem and ESQ dated March 16, 1990 (Tandem Agreement). The Tandem Agreement stated that "The internal laws of the State of California (irrespective of its choice of law principles) shall govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the rights and duties of the parties hereto." Birbrower asserts, and ESQ disputes, that ESQ knew Birbrower was not licensed to practice law in California.
While representing ESQ, Hobbs and Condon traveled to California on several occasions. In August 1992, they met in California with ESQ and its accountants. During these meetings, Hobbs and Condon discussed various matters related to ESQ's dispute with Tandem and strategy for resolving the dispute. They made recommendations and gave advice. During this California trip, Hobbs and Condon also met with Tandem representatives on four or five occasions during a two-day period. At the meetings, Hobbs and Condon spoke on ESQ's behalf. Hobbs demanded that Tandem pay ESQ $15 million. Condon told Tandem he believed that damages would exceed $15 million if the parties litigated the dispute.
Around March or April 1993, Hobbs, Condon, and another Birbrower attorney visited California to interview potential arbitrators and to meet again with ESQ and its accountants. Birbrower had previously filed a demand for arbitration against Tandem with the San Francisco offices of the American Arbitration Association (AAA). In August 1993, Hobbs returned to California to assist ESQ in settling the Tandem matter. While in California, Hobbs met with ESQ and its accountants to discuss a proposed settlement agreement Tandem authored. Hobbs also met with Tandem representatives to discuss possible changes in the proposed agreement. Hobbs gave ESQ legal advice during this trip, including his opinion that ESQ should not settle with Tandem on the terms proposed.
ESQ eventually settled the Tandem dispute, and the matter never went to arbitration. But before the settlement, ESQ and Birbrower modified the contingency fee agreement. fn. 2 The modification changed the fee arrangement from contingency to fixed fee, providing that ESQ would pay Birbrower [17 Cal. 4th 126] over $1 million. The original contingency fee arrangement had called for Birbrower to receive "one-third (1/3) of all sums received for the benefit of the Clients ... whether obtained through settlement, motion practice, hearing, arbitration, or trial by way of judgment, award, settlement, or otherwise ...."
In January 1994, ESQ sued Birbrower for legal malpractice and related claims in Santa Clara County Superior Court. Birbrower removed the matter to federal court and filed a counterclaim, which included a claim for attorney fees for the work it performed in both California and New York. The matter was then remanded to the superior court. There ESQ moved for summary judgment and/or adjudication on the first through fourth causes of action of Birbrower's counterclaim, which asserted ESQ and its representatives breached the fee agreement. ESQ argued that by practicing law without a license in California and by failing to associate legal counsel while doing so, Birbrower violated section 6125, rendering the fee agreement unenforceable. Based on these undisputed facts, the Santa Clara Superior Court granted ESQ's motion for summary adjudication of the first through fourth causes of action in Birbrower's counterclaim. The court also granted summary adjudication in favor of ESQ's third and fourth causes of action in its second amended complaint, seeking declaratory relief as to the validity of the fee agreement and its modification. (See fn. 3)The court concluded that: (1) Birbrower was "not admitted to the practice of law in California"; (2) Birbrower "did not associate California counsel"; fn. 3 (3) Birbrower "provided legal services in this state"; and (4) "The law is clear that no one may recover compensation for services as an attorney in this state unless he or she was a member of the state bar at the time those services were performed."
In granting limited summary adjudication, the trial court left open the following issues for resolution: ESQ's malpractice action against Birbrower, and the remaining causes of action in Birbrower's counterclaim, including Birbrower's fifth cause of action for quantum meruit (seeking the reasonable value of legal services provided).
Birbrower petitioned the Court of Appeal for a writ of mandate directing the trial court to vacate the summary adjudication order. The Court of Appeal denied Birbrower's petition and affirmed the trial court's order, holding that Birbrower violated section 6125. The Court of Appeal also concluded that Birbrower's violation barred the firm from recovering its legal fees under the written fee agreement, including fees generated in New York by the attorneys when they were physically present in New York, because the agreement included payment for California or "local" services for a California client in California. The Court of Appeal agreed with the trial court, however, in deciding that Birbrower could pursue its remaining claims against ESQ, including its equitable claim for recovery of its fees in quantum meruit.
We granted review to determine whether Birbrower's actions and services performed while representing ESQ in California constituted the unauthorized practice of law under section 6125 and, if so, whether a section 6125 violation rendered the fee agreement wholly unenforceable.
In addition to not defining the term "practice law," the Act also did not define the meaning of "in California." In today's legal practice, questions often arise concerning whether the phrase refers to the nature of the legal services, or restricts the Act's application to those out-of-state attorneys who are physically present in the state.
Section 6125 has generated numerous opinions on the meaning of "practice law" but none on the meaning of "in California." In our view, the practice of law "in California" entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer's activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law "in California." The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.
Our definition does not necessarily depend on or require the unlicensed lawyer's physical presence in the state. Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive. For example, one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a [17 Cal. 4th 129] California legal dispute by telephone, fax, computer, or other modern technological means. Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law "in California" whenever that person practices California law anywhere, or "virtually" enters the state by telephone, fax, e-mail, or satellite. (See e.g., Baron v. City of Los Angeles (1970) 2 Cal. 3d 535, 543 [86 Cal. Rptr. 673, 469 P.2d 353, 42 A.L.R.3d 1036] (Baron) ["practice law" does not encompass all professional activities].) Indeed, we disapprove Ring, supra, 26 Cal. App. 2d Supp. 768, and its progeny to the extent the cases are inconsistent with our discussion. We must decide each case on its individual facts.
If we were to carry the dissent's narrow interpretation of the term "practice law" to its logical conclusion, we would effectively limit section 6125's application to those cases in which nonlicensed out-of-state lawyers appeared in a California courtroom without permission. (Dis. opn., post, at pp. 142-144.) Clearly, neither Merchants, supra, 189 Cal. at page 535, nor Baron, supra, 22 Cal.3d at page 543, supports the dissent's fanciful interpretation of the thoughtful guidelines announced in those cases. Indeed, the dissent's definition of "practice law" ignores Merchants altogether, and, in so doing, substantially undermines the Legislature's intent to protect the public from those giving unauthorized legal advice and counsel.
Finally, California Rules of Court, rule 988, permits the State Bar to issue registration certificates to foreign legal consultants who may advise on the law of the foreign jurisdiction where they are admitted. These consultants may not, however, appear as attorneys before a California court or judicial officer or otherwise prepare pleadings and instruments in California or give advice on the law of California or any other state or jurisdiction except those where they are admitted.
[5a] The undisputed facts here show that neither Baron's definition (Baron, supra, 2 Cal.3d at p. 543) nor our "sufficient contact" definition of "practice law in California" (ante, at pp. 128-129) would excuse Birbrower's extensive practice in this state. Nor would any of the limited statutory exceptions to section 6125 apply to Birbrower's California practice. As the Court of Appeal observed, Birbrower engaged in unauthorized law practice in California on more than a limited basis, and no firm attorney engaged in that practice was an active member of the California State Bar. As noted (ante, at p. 125), in 1992 and 1993, Birbrower attorneys traveled to California to discuss with ESQ and others various matters pertaining to the dispute between ESQ and Tandem. Hobbs and Condon discussed strategy for resolving the dispute and advised ESQ on this strategy. Furthermore, during California meetings with Tandem representatives in August 1992, Hobbs demanded Tandem pay $15 million, and Condon told Tandem he believed damages in the matter would exceed that amount if the parties proceeded to litigation. Also in California, Hobbs met with ESQ for the stated purpose of helping to reach a settlement agreement and to discuss the agreement that was eventually proposed. Birbrower attorneys also traveled to California to initiate arbitration proceedings before the matter was settled. As the Court of Appeal concluded, "... the Birbrower firm's in-state activities clearly constituted the [unauthorized] practice of law" in California.
Although, as discussed (ante, at pp. 129-130), we recognize the need to acknowledge and, in certain cases, to accommodate the multistate nature of law practice, the facts here show that Birbrower's extensive activities within California amounted to considerably more than any of our state's recognized exceptions to section 6125 would allow. Accordingly, we reject Birbrower's suggestion that we except the firm from section 6125's rule under the circumstances here.
[7a] Because Birbrower violated section 6125 when it engaged in the unlawful practice of law in California, the Court of Appeal found its fee agreement with ESQ unenforceable in its entirety. Without crediting Birbrower for some services performed in New York, for which fees were generated under the fee agreement, the court reasoned that the agreement was void and unenforceable because it included payment for services rendered to a California client in the state by an unlicensed out-of-state lawyer. The court opined that "When New York counsel decided to accept [the] representation, it should have researched California law, including the law governing the practice of law in this state." The Court of Appeal let stand, however, the trial court's decision to allow Birbrower to pursue its fifth cause of action in quantum meruit. fn. 5 We agree with the Court of Appeal to the extent it barred Birbrower from recovering fees generated under the fee agreement for the unauthorized legal services it performed in California. We disagree with the same court to the extent it implicitly barred Birbrower [17 Cal. 4th 136] from recovering fees generated under the fee agreement for the limited legal services the firm performed in New York.
It is a general rule that an attorney is barred from recovering compensation for services rendered in another state where the attorney was not admitted to the bar. (Annot., Right of Attorney Admitted in One State to Recover Compensation for Services Rendered in Another State Where He Was Not Admitted to the Bar (1967) 11 A.L.R.3d 907; Hardy, supra, 99 Cal.App.2d at p. 576.) The general rule, however, has some recognized exceptions.
Initially, Birbrower seeks enforcement of the entire fee agreement, relying first on the federal court exception discussed ante, at page 130. (Cowen, supra, 230 Cal.App.2d at p. 872; In re McCue, supra, 211 Cal. at p. 66; see Annot., supra, 11 A.L.R.3d at pp. 912-913 [citing Cowen as an exception to general rule of nonrecovery].) This exception does not apply in this case; none of Birbrower's activities related to federal court practice.
A second exception on which Birbrower relies to enforce its entire fee agreement relates to "Services not involving courtroom appearance." (Annot., supra, 11 A.L.R.3d at p. 911 [citing Wescott v. Baker (1912) 83 N.J.L. 460 [85 A. 315]].) California has implicitly rejected this broad exception through its comprehensive definition of what it means to "practice law." Thus, the exception Birbrower seeks for all services performed outside the courtroom in our state is too broad under section 6125.
Birbrower asserts that even if we agree with the Court of Appeal and find that none of the above exceptions allowing fees for unauthorized California services apply to the firm, it should be permitted to recover fees for those limited services it performed exclusively in New York under the agreement. In short, Birbrower seeks to recover under its contract for those services it performed for ESQ in New York that did not involve the practice of law in California, including fee contract negotiations and some corporate case research. Birbrower thus alternatively seeks reversal of the Court of Appeal's judgment to the extent it implicitly precluded the firm from seeking fees generated in New York under the fee agreement.
In Keene, the defendant agreed to pay the plaintiffs $50,000 in exchange for their business involving coin-operated machines. The defendant defaulted on his payments, and the plaintiffs sued. The defendant argued that the sales agreement was void because part of the sale involved machines that were illegal under a California penal statute. The court affirmed the lower court's determination that the price of the illegal machines could be deducted from the amount due on the original contract. "Since the consideration on the buyer's side was money, the court properly construed the contract by equating the established market price of the illegal machines to a portion of the money consideration." (Keene, supra, 61 Cal.2d at p. 323.) Thus, even though the entire contract was for a fixed sum, the court was able [17 Cal. 4th 139] to value the illegal portion of the contract and separate it from the rest of the amount due under the agreement.
[7b] In this case, the parties entered into a contingency fee agreement followed by a fixed fee agreement. fn. 6 ESQ was to pay money to Birbrower in exchange for Birbrower's legal services. The object of their agreement may not have been entirely illegal, assuming ESQ was to pay Birbrower compensation based in part on work Birbrower performed in New York that did not amount to the practice of law in California. The illegality arises, instead, out of the amount to be paid to Birbrower, which, if paid fully, would include payment for services rendered in California in violation of section 6125.
Thus, the portion of the fee agreement between Birbrower and ESQ that includes payment for services rendered in New York may be enforceable to the extent that the illegal compensation can be severed from the rest of the agreement. On remand, therefore, the trial court must first resolve the dispute surrounding the parties' fee agreement and determine whether their agreement conforms to California law. If the parties and the court resolve the fee dispute and determine that one fee agreement is operable and does not violate any state drafting rules, the court may sever the illegal portion of the consideration (the value of the California services) from the rest of the fee agreement. Whether the trial court finds the contingent fee agreement or the fixed fee agreement to be valid, it will determine whether some amount is due under the valid agreement. The trial court must then determine, on [17 Cal. 4th 140] evidence the parties present, how much of this sum is attributable to services Birbrower rendered in New York. The parties may then pursue their remaining claims.
We conclude that Birbrower violated section 6125 by practicing law in California. To the extent the fee agreement allows payment for those illegal local services, it is void, and Birbrower is not entitled to recover fees under the agreement for those services. The fee agreement is enforceable, however, to the extent it is possible to sever the portions of the consideration attributable to Birbrower's services illegally rendered in California from those attributable to Birbrower's New York services. Accordingly, we affirm the Court of Appeal judgment to the extent it concluded that Birbrower's representation of ESQ in California violated section 6125, and that Birbrower is not entitled to recover fees under the fee agreement for its local services. We reverse the judgment to the extent the court did not allow Birbrower to argue in favor of a severance of the illegal portion of the consideration (for the California fees) from the rest of the fee agreement, and remand for further proceedings consistent with this decision.
George, C. J., Mosk, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
Dissenting.-In California, it is a misdemeanor to practice law when one is not a member of the State Bar. (Bus. & Prof. Code, §§ 6125, 6126, subd. (a).) In this case, New York lawyers who were not members of the California Bar traveled to this state on several occasions, attempting to resolve a contract dispute between their clients and another corporation through negotiation and private arbitration. Their clients included a New York corporation and a sister corporation incorporated in California; the lawyers had in previous years represented the principal owners of these corporations. The majority holds that the New York lawyers' activities in California constituted the unauthorized practice of law. I disagree.
The majority focuses its attention on the question of whether the New York lawyers had engaged in the practice of law in California, giving scant consideration to a decisive preliminary inquiry: whether, through their activities here, the New York lawyers had engaged in the practice of law at all. In my view, the record does not show that they did. In reaching a contrary conclusion, the majority relies on an overbroad definition of the term "practice of law." I would adhere to this court's decision in Baron v. City of [17 Cal. 4th 141] Los Angeles (1970) 2 Cal. 3d 535 [86 Cal. Rptr. 673, 469 P.2d 353, 42 A.L.R.3d 1036], more narrowly defining the practice of law as the representation of another in a judicial proceeding or an activity requiring the application of that degree of legal knowledge and technique possessed only by a trained legal mind. Under this definition, this case presents a triable issue of material fact as to whether the New York lawyers' California activities constituted the practice of law.
Defendant Birbrower, Montalbano, Condon & Frank, P.C. (hereafter Birbrower) is a New York law firm. Its lawyers are not licensed to practice law in California.
Kamal Sandhu was the sole shareholder of ESQ Business Services Inc., a New York corporation (hereafter ESQ-NY), of which his brother Iqbal Sandhu was the vice-president. Beginning in 1986, Birbrower lawyers represented the Sandhu family in various business matters. In 1990, Kamal Sandhu asked Birbrower lawyer Kevin Hobbs to review a proposed software development and marketing agreement between ESQ-NY and Tandem Computers Incorporated (hereafter Tandem). The agreement granted Tandem worldwide distribution rights to computer software created by ESQ-NY. The agreement also provided that it would be governed by California law and that, according to Birbrower's undisputed assertion, disputes were to be resolved by arbitration under the rules of the American Arbitration Association. ESQ-NY and Tandem signed the agreement.
Thereafter, a second corporation, also named ESQ Business Services, Inc. (hereafter ESQ-CAL), was incorporated in California, with Iqbal Sandhu as a principal shareholder. In 1991, ESQ-CAL consulted Birbrower lawyers concerning Tandem's performance under the agreement. In 1992, ESQ-NY and ESQ-CAL jointly hired Birbrower to resolve the dispute with Tandem, including the investigation and prosecution of claims against Tandem if necessary. ESQ-NY and ESQ-CAL entered into a contingency fee agreement with Birbrower; this agreement was executed in New York but was later modified to a fixed fee agreement in California.
The efforts of the Birbrower lawyers to resolve the dispute with Tandem included several brief trips to California. On these trips, Birbrower lawyers met with officers of both ESQ-NY and ESQ-CAL and with representatives of Tandem; they also interviewed arbitrators and participated in negotiating the settlement of the dispute with Tandem. (Maj. opn., ante, at p. 125.) On February 12, 1993, Birbrower initiated an arbitration proceeding against [17 Cal. 4th 142] Tandem, on behalf of both ESQ-NY and ESQ-CAL, by filing a claim with the American Arbitration Association in San Francisco, California. Before an arbitration hearing was held, the dispute with Tandem was settled.
In January 1994, ESQ-CAL and Iqbal Sandhu, the principal shareholder, sued Birbrower for malpractice. Birbrower cross-complained to recover its fees under the fee agreement. Plaintiffs ESQ-CAL and Iqbal Sandhu thereafter amended their complaint to add ESQ-NY as a plaintiff. Plaintiffs moved for summary adjudication, asserting the fee agreement was unenforceable because the Birbrower lawyers had engaged in the unauthorized practice of law in California. The trial court agreed, and granted plaintiffs' motion. The Court of Appeal upheld the trial court's ruling, as does a majority of this court today.
Business and Professions Code section 6125 states: "No person shall practice law in California unless the person is an active member of the State Bar." The Legislature, however, has not defined what constitutes the practice of law.
The majority asserts that the definition of practice of law I have stated above misreads this court's opinion in Baron. (Maj. opn., ante, at p. 129.) But what the majority characterizes as "the dissent's fanciful interpretation of the [Baron court's] thoughtful guidelines" (ibid.) consists of language I have quoted directly from Baron.
The majority also charges that the narrowing construction of the term "practice of law" that this court adopted in Baron "effectively limit[s] section 6125's application to those cases in which nonlicensed out-of-state lawyers appeared in a California courtroom without permission." (Maj. opn., ante, at p. 129.) Fiddlesticks. Because the Baron definition encompasses all activities that " 'reasonably demand application of a trained legal mind' " (Baron, supra, 2 Cal.3d at p. 543), the majority's assertion would be true only if there were no activities, apart from court appearances, requiring application of a trained legal mind. Many attorneys would no doubt be surprised to learn that, for example, drafting testamentary documents for large estates, preparing merger agreements for multinational corporations, or researching complex legal issues are not activities that require a trained legal mind.
Unlike the majority, I would for the reasons given above adhere to the more narrowly drawn definition of the practice of law that this court articulated in Baron, supra, 2 Cal. 3d 535, 543: the representation of another in a judicial proceeding or an activity requiring the application of that degree [17 Cal. 4th 145] of legal knowledge and technique possessed only by a trained legal mind. Applying that definition here, I conclude that the trial court should not have granted summary adjudication for plaintiffs based on the Birbrower lawyers' California activities. That some or all of those activities related to arbitration does not necessarily establish that they constituted the practice of law, as I shall explain.
As I mentioned earlier, Birbrower's clients had a software development and marketing agreement with Tandem. The agreement provided that its validity, interpretation, and enforcement were to be governed by California law. It also contained an arbitration provision. After a dispute arose pertaining to Tandem's performance under the agreement, Birbrower initiated an arbitration on behalf of its clients by filing a claim with the American Arbitration Association in San Francisco, and held meetings in California to prepare for an arbitration hearing. Because the dispute with Tandem was settled, the arbitration hearing was never held.
As I explained in part II, ante, this court in Baron, supra, 2 Cal. 3d 535, 543, defined the term "practice of law" in narrower terms than the court had done earlier in Merchants, supra, 189 Cal. 531, 535, which simply adopted verbatim the general definition set forth in an 1893 decision of the Indiana Court of Appeals. Under the narrower definition articulated in Baron, the practice of law is the representation of another in a judicial proceeding or an activity requiring the application of that degree of legal knowledge and technique possessed only by a trained legal mind.
To summarize, under this court's decisions, arbitration proceedings are not governed or constrained by the rule of law; therefore, representation of another in an arbitration proceeding, including the activities necessary to prepare for the arbitration hearing, does not necessarily require a trained legal mind.
The American Arbitration Association and other major arbitration associations thus recognize that nonattorneys are often better suited than attorneys to represent parties in arbitration. The history of arbitration also reflects this reality, for in its beginnings arbitration was a dispute-resolution mechanism principally used in a few specific trades (such as construction, textiles, ship chartering, and international sales of goods) to resolve disputes among businesses that turned on factual issues uniquely within the expertise of members of the trade. In fact, "rules of a few trade associations forbid representation by counsel in arbitration proceedings, because of their belief that it would complicate what might otherwise be simple proceedings." (Grenig, Alternative Dispute Resolution (1997) § 5.2, p. 81.) The majority gives no adequate justification for its decision to deprive parties of their [17 Cal. 4th 147] freedom of contract and to make it a crime for anyone but California lawyers to represent others in arbitrations in California.
The majority's attempt to distinguish Williamson, supra, 537 F. Supp. 613, from this case is unpersuasive. The majority points out that in Williamson, the lawyers of the New Jersey firm actually rendered services at the New York arbitration hearing, whereas here the New York lawyers never actually appeared at an arbitration hearing in California. (Maj. opn., ante, at pp. 133, 134, fn. 4.) The majority distinguishes Williamson on the ground that in this case no arbitration hearing occurred. Does the majority mean that an actual appearance at an arbitration hearing is not the practice of law, but that preparation for arbitration proceedings is?
In this case, plaintiffs have not identified any specific California activities by the New York lawyers of the Birbrower firm that meet the narrow definition of the term "practice of law" as articulated by this court in Baron, supra, 2 Cal. 3d 535, 543. Accordingly, I would reverse the judgment of the Court of Appeal and direct it to remand the matter to the trial court with directions to vacate its order granting plaintiff's motion for summary adjudication and to enter a new order denying that motion.
On February 25, 1998, the opinion was modified to read as printed above.
FN 1. All further statutory references are to the Business and Professions Code unless otherwise specified.
FN 2. Birbrower's brief refers to the "Fee Agreement" without specifying whether it means the original contingency agreement or the later modified fixed fee agreement. The operative fee agreement that would be enforced is in dispute, and, as explained below, is subject to clarification on remand. To avoid confusion, we simply refer to one "fee agreement" for purposes of our analysis.
FN 3. Contrary to the trial court's implied assumption, no statutory exception to section 6125 allows out-of-state attorneys to practice law in California as long as they associate local counsel in good standing with the State Bar.
FN 4. The dissent focuses on an arbitrator's powers in an attempt to justify its conclusion that an out-of-state attorney may engage in the unlicensed representation of a client in an arbitration proceeding. (See dis. opn., post, at pp. 144-145.) This narrow focus confuses the issue here. An arbitrator's powers to enforce a contract or "award an essentially unlimited range of remedies" has no bearing on the question whether unlicensed out-of-state attorneys may represent California clients in an arbitration proceeding. (Dis. opn., post, at p. 145.) Moreover, any discussion of the practice of law in an arbitration proceeding is irrelevant here because the parties settled the underlying case before arbitration proceedings became necessary. Nonetheless, we emphasize that, in the absence of clear legislative direction, we decline to create an exception allowing unlicensed legal practice in arbitration in violation of section 6125.
FN 5. We observe that ESQ did not seek (and thus the court did not grant) summary adjudication on the Birbrower firm's quantum meruit claim for the reasonable value of services rendered. Birbrower thus still has a cause of action pending in quantum meruit.
FN 6. The parties apparently do not dispute that they modified the original contingency fee arrangement to call for a fixed fee payment of over $1 million. They dispute, however, whether the original contingency fee arrangement became operative once again when ESQ failed to make a payment to Birbrower under the fixed fee arrangement. Because the trial court and the Court of Appeal believed the fee agreements to be unenforceable in their entirety, neither court addressed issues relating to the fee agreements themselves or the parties' disputes surrounding those agreements. We agree with the Court of Appeal that issues surrounding the two fee agreements and the applicability of either section 6147 (regulating contents of contingency fee agreements) or the State Bar Rules of Professional Conduct, rules 3-300 and 4-200 (governing fees for legal services), are best resolved by the trial court on remand.

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§ 450-1 Duty to remove.
§ 450-2 Depositing snow on streets restricted.
§ 450-4 Violations and penalties.
§ 450-6 Responsibility of landowner for cost of construction and repair.
§ 450-7 Notice to owner of required improvements.
§ 450-8 Manner of serving notice.
§ 450-9 Failure to comply; work to be done by Township; costs to become lien.
§ 450-12 Permit application procedure.
§ 450-13 Schedule of permit fees.
§ 450-14 Performance and maintenance guaranties.
§ 450-16 Construction standards; methods of construction.
§ 450-17 Traffic safety and control.
§ 450-18 Responsibilities of permittees.
§ 450-19 Excavations prohibited following street improvements.
§ 450-20 Inspection and acceptance.
§ 450-21 Responsibility for damages.
§ 450-23 Violations and penalties; other remedies.
§ 450-24 Revocation; imposition of special conditions.
§ 450-27 Parking regulated during snow emergencies.
§ 450-28 Declaration and notice.
§ 450-29 Termination of notice.
§ 450-30 Towing of improperly parked vehicles.
§ 450-31 Violations and penalties.
§ 450-32 Intent and purpose.
§ 450-35 Tree removal and responsibility for costs.
§ 450-36 Tree health determination.
§ 450-38 Endangering underground utility lateral.
§ 450-43 Violations and penalties.
Land use procedures — See Ch. 330.