Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, May 10, 2013

Dittfurth: Restitution in Texas

David Dittfurth's (St. Mary's) article "Restitution in Texas: Civil Liability for Unjust Enrichment" appears in the latest South Texas Law Review (Winter 2012).  On first read, I am impressed with this article, which is comprehensive and makes a valuable contribution to this often confusing and misunderstood area of law.  We cover restitution, unjust enrichment, quantum meruit and quasi-contract and other related causes of action in our Damages class and I look forward to mining this article for a better understanding myself.  As a bonus, Dittfurth includes "recent statements by the courts of forty-nine states and the District of Columbia that describe the elements of unjust enrichment" in those jurisdictions.

Craig Estlinbaum

May 10, 2013 in Law Review Articles, Remedies | Permalink | Comments (0)

Thursday, May 9, 2013

Supreme Judicial Court Decision Interprets Enforceability of Online Terms and Conditions

A recent decision by the Massachusetts Supreme Judicial court holds that a forum selection and limitation of liability clause is not enforceable under Massachusetts law in a browsewrap agreement.  This is an interesting opinion because it touches on a number contract law issues and estate law issues (not covered in this post) as applied to cyberspace.

The case involves the interpretation of Yahoo!'s Terms of Service (TOS) relating to its free email service. The case was brought by the administrators of the estate of a Yahoo email user to get court approval for access to the account and the content of the emails. Because the Yahoo! TOS had a forum selection clause requiring that all disputes be brought in California, the Court had the opportunity to interpret the enforceability under Massachusetts law of such clauses in online agreements. After noting that the SJC has not previously considered the enforceability of forum selection and limitation of liability clauses in online agreements, it looked to the case law on such issues in traditional paper contracts. In those cases, courts have enforced such provisions as long as they have been reasonably communicated and accepted and if, considering all the circumstances, it is reasonable to enforce the provision at issue. The burden on the first prong fall on the issuer of the TOS. On the second prong (that the TOS themselves were reasonable), in the forum selection case, the burden falls on the plaintiffs, and no such burden applies in case of a limitations provision.

Applying this standard to online agreements, the Court held that Yahoo! did not meet their burden of showing the TOS were reasonably communicated and accepted. Yahoo!'s affidavit that users were "given an opportunity to review" the TOS and Privacy Policy prior to registering" was not sufficient by itself. The Court could not infer from that affidavit that the TOS were actually displayed on the user's screen. If the user was asked to follow a link to the TOS -- which is a pretty typical user experience --- Yahoo!'s affidavit would have to have provided the specific instructions relating to the link, how prominently displayed was the link, and any other information bearing on the reasonableness of this communication.

The Court also held that Yahoo! failed in showing that the TOS were accepted. Past cases have enforced such provisions only in click-wrap agreements (where "terms of the agreement were displayed, at least in part, on the user's computer screen and the user was required to signify his or her assent by clicking 'I accept.'"), but not in browsewrap agreements (where "website terms and conditions of use are posted on the website typically as a hyperlink at the bottom of the screen."). On that basis, the Court refused to extend the enforceability to browsewrap agreements and held that the record did not show "the terms of any agreement were reasonably communicated or that they were accepted."

The Court also held that the TOS would not be enforceable against the estate adminstrators because they were not third party beneficiaries of this contract.  The Court looked to precedent from other jurisdictions on this issue, where courts have held nonsignatory third parties could be bound where the nonparty is "sufficiently closely related to a signatory that it is foreseeable that the nonsignatory will be bound."

Finally, the Court also found the forum selection clause itself to be unreasonably broad. The clause provided: "You and Yahoo agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California." The Court held that as written this provision would require a suit of any nature to be brought in California, even if it had nothing to do with the email account or the online terms.  It reasoned that this provision should not be enforced "articularly since it was contained in a consumer contract drafted unilaterally."


Dimitry Herman

Adjunct Law Professor of Corporate Mergers and Acquisitions

New England School of Law




May 9, 2013 in Contract Issues, State Law | Permalink | Comments (0)

Wednesday, May 8, 2013

Linda's Home Team

Linda SledLinda February 2013

Donate Life

As many of you know, on June 29, 2011, my  then 13 year old daughter, Linda, received a Kidney transplant from a child donor who died in a tragic accident. We are forever greatful to that wonderful family.

My older daughter, Mollie as well as our entire family is very active in raising money for The New Jersey Sharing Network. The New Jersey Sharing Network facilitates organ donation and transplant and is the organization responsible for helping Linda obtain her new Kidney. 

On June 9, 2013, The New Jersey Sharing Network is sponsoring a 3 mile run and walk to help raise money for this critically important cause. The event will take place in Providence New Jersey and starts at 9 am. Information about the run/walk can be found here.

I hope that you will consider joining us on June 9th. If you cannot make it, contributions are welcome. 100% of the donations go to the N.J. Sharing Network. 

If you want to sign up to run/walk, click here.  You should click on join team in the upper right hand corner. If you cannot make it and would just like to contribute, you can make a donation on by clicking on my name and then clicking on contribute in the right hand corner. 

This is the least that we can do. And please consider indicating on your drivers license that you are willing to be an organ donor. Additional information about Linda's Home Team as well as a picture of some of the members from last year can be found on Linda's Home Team Facebook page developed by Mollie, here

Thank you,

Mitch Rubinstein

May 8, 2013 in Misc., Non-Legal | Permalink | Comments (0)

Fifth Circuit: Pharmacy Purchase Logs are Nontestimonial Business Records

In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness.  Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.

The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine.  The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6).  The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.

The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes.  Defendant argued that for this reason, the records were not business records - records kept for a business purpose.  The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business.  The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business."  Slip Op. at 5.

Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights.  The majority rejected this argument also.  Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.

The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason.  The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.

This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.

Craig Estlinbaum

May 8, 2013 in Constitutional Law, Criminal Law, Interesting Cases | Permalink | Comments (0)

Tuesday, May 7, 2013

Justices Will Not Review Ruling Shielding Retirees' Health Care Benefits


Denying a packaging firm's petition for review, the U.S. Supreme Court recently denied cert to a case which held that retirees of a Michigan plant are vested with lifetime, employer-paid health care insurance for themselves and their spouses ( Menasha Corp. v. Moore, U.S., No. 12-942, cert. denied 3/25/13 ).
Menasha Corp., sought review of a U.S. Court of Appeals for the Sixth Circuit decision that outside evidence clarifying collective bargaining agreements signed in 1994 and 1997 indicated Menasha and the union intended to provide retirees and their spouses with vested, lifetime health care benefits (660 F.3d 444, 193 LRRM 3249 (6th Cir. 2012).
This is a huge issue under ERISA and under collective bargaining agreements and I expect the Supremes will visit it one day. Law review commentary on this important topic would be welcome.
Mitchell H. Rubinstein

May 7, 2013 in Employee Benefits Law, Employment Law, Law Review Ideas | Permalink | Comments (0)

Monday, May 6, 2013

Texas: February 2013 Bar Results Are In

The bar exam results are in for the February 2013, exam and congratulations are in order to Texas's newest attorneys.  The overall pass rate for this exam was 74.18%, with the breakdown among Texas law schools (for first time takers) and other test-taker categories being as follows:

  • Baylor                    95.56%
  • Texas Tech                95.45%
  • Out of State Licensees    90.32%
  • Houston                   89.66%
  • Texas Wesleyan            88.68%
  • Texas                     86.36%
  • South Texas               85.22%
  • St. Mary's                75.00%
  • Overall Pass Rate         74.18%
  • S.M.U.                    73.08%
  • Thurgood Marshall         66.67%
  • Out of state law schools  65.78%
  • All Repeat Test Takers    63.58%
  • Other categories          55.56%     
Craig Estlinbaum

May 6, 2013 | Permalink | Comments (0)

King; Enforcing Effective Assistance after Martinez

Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN.   Here is the abstract:

This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.

This Essay is forthcoming in the Yale Law Journal.

Craig Estlinbaum

May 6, 2013 in Constitutional Law, Criminal Law, Law Review Articles | Permalink | Comments (0)

Sunday, May 5, 2013

NLRB Petitions Supreme Court to Review Ruling on Recess Appointments

As expected, the NLRB filed  petition asking the U.S. Supreme Court to review a recent DC Circuit decision which held unconstitutional President Obama's January 2012 recess appointments to the board (NLRB v. Noel Canning Div. of Noel Corp.,  petition filed 4/25/13).

The petition asserts that the decision of the District of Columbia Circuit (705 F.3d 490 (D.C. Cir. 2013), "would dramatically curtail the scope of the President's authority under the Recess Appointments Clause" of the U.S. Constitution if the appeals court ruling is allowed to stand.

Mitchell H. Rubinstein

May 5, 2013 in NLRB | Permalink | Comments (0)

Saturday, May 4, 2013

2013 NYU Annual Conference on Labor June 6-7

By far, one of the best labor conferences in the country-and I have been to many conferences-is the annual NYU Labor Conference. Details and registration material can be found by clicking  Download LABOR CENTER -- 2013 NYU ANNUAL CONFERENCE ON LABOR It is run by Professor Sam Estreicher who is one of the most well known scholars in the country. 

For the last several years this conference has been co-sponsored by St. John's Law School and the Cornell ILR School. It goes without saying that the topics are interesting-this year the focus is on the FLSA-and CLE credit is awarded.

So why is this conference different?? It is different because most substantive topic discussions involve academics and practicing lawyers. And it is not just any practing labor lawyer or any labor professor. This conference regularly attracks the most established lawyers and professors. Just take a glance at who is speaking this year. I save the material handed out because it is so useful. 

So, if you have some time, you may want to consider attending this conference. 

Note, although it is held over 2 days, you can choose to attend only one day. You also cannot beat the cocktail receiption. 

Mitchell H. Rubinstein


May 4, 2013 | Permalink | Comments (0)

Friday, May 3, 2013

New In Print: Law Review Reviews

Fordham Law Review's April 2013, issue includes a symposium on the goals of antitrust.  Barak Orbach (Arizona) contributed the Forward.  The April 2013, California Law Review includes "Property's Constitution," by James Y. Stern (Virginia) and From Independence to Politics in Financial Regulation," by Stavros Gadinis (Berkeley).  The current issue of the Columbia Journal of Gender & Law includes a Symposium Honoring the Advocacy, Scholarship and Jurisprudence of Justice Ruth Bader Ginsburg.  

The March 2013, Columbia Law Review includes "In Defense of Big Waiver," by David J. Barron (Harvard) and Todd D. Rakoff, (Harvard) and "Technological Innovation, International Competition and the Challenges of International Income Taxation," by Michael J. Graetz (Columbia) and Rachael Doud (Yale '12).  The Winter 2013, Houston Law Review includes articles by Alexia Brunet Marks (Colorado), Stacey A Tovino (UNLV) and Fredrick E. Vars (Alabama).

Legal history buffs may want to check out the Fall/Winter 2013 Rutgers Law Journal, which includes Symposium: The Constitution and the Sectional Conflict.  The current issue of the Saint Louis Law Review includes the symposium, "Invisible Constitutions:  Culture, Religion and Memory."

The Texas Tech Law Review's Fall 2012 issue includes the Sixth Annual Criminal Law Symposium: Sixth Amendment, including panel articles on confrontation, the right to counsel at trial, and the right to counsel before trial.  As of this writing, this edition is not available online at the law review's website.

The March 2013, Cornell Law Review includes "Accepting the Limits of Tax Law and Economics," by Alex Raskolnikov (Columbia), "The Regulator Effect in Financial Regulation," by Jonathan R. Macey (Yale) and "The Social Production of National Security," by Aziz Z. Huq (Chicago).

Some other recently released symposium issues of note are UC Davis Law Review and "The Daubert Hearing: From All the Critical Perspectives;" The University of Chicago Law Review and "Immigration Law and Institutional Design;" Washington University Global Studies Law Review and "Global Nuclear Energy Law and Regulation;" and Georgetown Journal of Law & Public Policy and "Hyper Partisanship and the Law."

The April 2013, Duke Law Journal includes "Delegating Up: State Conformity With the Federal Tax Base," by Ruth Mason (Connecticut) and the lecture, "Exit, Voice and Disloyalty," by Heather K. Gerken (Yale).  The current Oregon Law Review (Vol. 91, No. 4) includes a symposium on issues relating to marijuana legalization and the war on drugs.

Craig Estlinbaum


May 3, 2013 in Articles, Law Review Articles | Permalink | Comments (0)

Thursday, May 2, 2013

Recent Massachusetts Supreme Judicial Court Decision Interprets a Landlord’s Indemnification Rights under a Commercial Lease

A recent decision by the Massachusetts SJC provides a short master class on indemnification provisions in a commercial lease. (For those interested, a link to the oral argument can also be found here.)  While I do not focus on real estate in my practice or teaching, a lease is a contract like any other, so it seemed worthwhile to review this decision. 


The case involved a long term commercial lease in downtown Boston.  The lease started in 2006, and two years later (2008 was not exactly a great real estate market) the tenant suspended its business operations and stopped paying rent, causing the landlord to declare a default, terminate the lease and seek to re-let the premises.  The landlord ultimately filled the space almost two years later, albeit at a lower overall rent, but for a new lease term that went beyond the term of the terminated lease.  The landlord then sought to recover its lost rent for this period (including the period following the original lease term) from the original tenant (and its guarantor). 


The lease contained a general indemnification clause requiring the tenant to indemnify the landlord against “all loss of rent and other payments which Landlord may incur by reason of such termination during the remainder of the term."  The lease did not grant the landlord a liquidated damages remedy or any other remedy apart from indemnification.


In a colorful opinion, citing Oliver Wendell-Holmes (citing Lord Coke), the Court ruled that Massachusetts law does not permit the landlord, absent an express lease provision, to recover lost rent for time periods outside of the original lease term.  Distinguishing this case from a 1905 decision cited by a lower court in this proceeding, the SJC held that a landlord cannot recover for post-termination damages under an indemnification clause in a lease until the end of the period specified in the lease, when the amount of indemnification is uncertain, unless the indemnification clause specifically provides that damages may be recovered earlier.  The Court sympathized with landlord’s argument that being required to wait until the end of the lease term to enforce an indemnity could be prejudicial in various ways, including that the tenant may be long gone by that point and any adjudged amount may prove uncollectible.  However, the Court refused to adopt an exception to this common law rule, reasoning that landlords are in the best position to assess this type of risk and therefore should be required to state so in their leases.  The Court stated that “a landlord left without an adequate remedy following breach … has only itself to blame for entering into a lease that fails to provide such a remedy.” 


The Court also rejected the landlord’s argument that it was entitled to recover "benefit of the bargain" damages in the event of termination of the lease following a breach.  The Court followed the long-standing common law that once a landlord terminates a lease, the tenant is no longer obligated to pay the rent, and, unless the lease provides otherwise, the landlord is not entitled to post-termination damages.


This case emphasizes the importance of carefully drafted remedy provisions in any commercial documents.  Parties should not place their faith on courts to help them recover damages for which they did not negotiate, and would be well-advised to review their lease forms in light of this decision.


Dimitry Herman

Adjunct Law Professor of Corporate Mergers and Acquisitions

New England School of Law

May 2, 2013 in Contract Issues, State Law | Permalink | Comments (0)