Jun 04, 2007
California Supreme Court rules that Commercial Code provisions preempt common law causes of action against bank and require customer’s prompt objection to bank’s allegedly unauthorized funds transfers

Zengen, Inc. v. Comerica Bank, (2007) 41 Cal.4th 239 (California Supreme Court). Marc Poster and Irving Greines assisted co-counsel (Robert Addison and Jeffrey Wruble of the Buchalter Nemer firm) in drafting Comerica’s victorious brief on the merits in the Supreme Court and in preparing for a successful oral argument. Zengen’s chief financial officer allegedly embezzled $4.6 million by forging orders to wire transfer funds from a Zengen account at Comerica Bank. Zengen sued Comerica, claiming breach of contract and other common law claims as well as violation of California Commercial Code provisions regarding commercial funds transfers. The Supreme Court adopted Comerica’s contentions that (1) specific provisions of the Code, which allocate responsibilities for such unauthorized transfers, preempt all common law causes of action, and (2) because a bank is not necessarily responsible for all unauthorized funds transfers, Comerica was entitled to prompt notice that the customer intends to hold the bank responsible.