ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Saturday, July 14, 2018

A dispute along the shores of Lake George

We went to Lake George on vacation a couple of times when I was a kid, so I am blogging this recent case out of New York, Edscott Realty Corp. v. LaPlante Enterprises, Inc., 61356, out of a sense of nostalgia. Also it's another ambiguity case, and I always find those interesting and instructive for thinking about things to watch out for. 

The parties operate two adjacent hotels on the shores of Lake George. In 1999, the parties had a dispute over water access that was eventually resolved in 2002 by dividing up the water according to a fence line "continued out into the waters of Lake George in an easterly direction along said course." The waters north of the fence line were reserved for the plaintiff and the waters south for the defendant. 

The parties are now disputing, among other things, the meaning of this division. The plaintiff alleged that it limits both the actual berthing of boats on the wrong side of this line plus ingress and egress to navigate into those berths. The defendant alleged that it pertains only to the berthing of boats and does not limit the navigation of boats on Lake George. The court found that there was an ambiguity as to how far out into Lake George the parties had stipulated their rights to extend, and so refused to award summary judgment on the issue. 

July 14, 2018 in Recent Cases, Travel, True Contracts | Permalink | Comments (0)

Friday, July 13, 2018

How does a "deemed effective" date affect a non-compete?

A recent case out of New York, Niznick v. Sybron Canada Holdings, Inc., 650726/2018, illustrates how ambiguity can crop up anywhere, sometimes no matter how careful you are; it's difficult to plan for every eventuality. 

The parties had a contract that included a non-competition clause that prohibited competition for five years after Niznick ceased to own any units in the company. Sybron tried to exercise an option to purchase Niznick's units in the company in 2014, but Niznick disputed the validity of Sybron's actions, and the parties engaged in litigation. Eventually, a court concluded that Sybron was permitted to exercise the option and that Niznick's ownership interest terminated as of the 2014 date when Sybron had attempted to exercise its option. After this decision, in 2017, the parties entered into a purchase and sale agreement "deemed to be effective as if the transfer" had occurred in 2014. Niznick also asserted that, therefore, the non-competition clause would expire in 2019--five years after the 2014 date. Sybron contested that reading. 

The parties' previous contracts had referred to the non-compete as "a material part of the consideration" of the agreement. The court, therefore, did not allow Niznick's attempt to minimize its importance. The purchase and sale agreement executed in 2017 stated that Niznick "is the owner" of the units in question (emphasis added). The "deemed to be effective" date was not considered to alter the language of the non-compete, which stated that it would commence when Niznick ceased to own units, which did not happen until the 2017 purchase and sale agreement, regardless of the "deemed effective" date. 

At the time of drafting the non-compete, it was probably thought that it would be pretty clear when Niznick ceased to own the units. Sybron probably did not anticipate that they would have a dispute about the operative date this way. 

 

July 13, 2018 in Conferences, Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, July 12, 2018

Weekly Top Ten SSRN Contracts & Commercial Law Downloads for July 12, 2018

Top Ten Logo 1

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 13 May 2018 - 12 Jul 2018
Rank Paper Downloads
1.

Data Pollution

University of Chicago Law School
204
2.

Legal Engineering on the Blockchain: 'Smart Contracts' as Legal Conduct

Swinburne University of Technology - Swinburne Law School and University of Melbourne, Law School
184
3.

The Stakes of Smart Contracts

University of Arizona - James E. Rogers College of Law
176
4.

The Persistence of 'Dumb' Contracts

Suffolk University Law School
132
5.

Force Majeure and Excuses in Smart Contracts

Tilburg Law School
96
6.

Equity as Supplemental Law

Notre Dame Law School
94
7.

Not-So-Smart Blockchain Contracts and Artificial Responsibility

Brooklyn Law School
90
8.

Personalizing Mandatory Rules in Contract Law

University of Chicago Law School and Tel Aviv University
86
9.

Granular Legal Norms: Big Data and the Personalization of Private Law

University of Osnabrück - European Legal Studies Institute and University of Ferrara - Faculty of Law
80
10.

The Impact of the French Doctrine of Significant Imbalance on International Business Transactions

HEC Paris - Tax & Law, Université Côte d'Azur and HEC Paris
74

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 13 May 2018 - 12 Jul 2018
Rank Paper Downloads
1.

Data Pollution

University of Chicago Law School
204
2.

The Stakes of Smart Contracts

University of Arizona - James E. Rogers College of Law
176
3.

The Persistence of 'Dumb' Contracts

Suffolk University Law School
133
4.

Force Majeure and Excuses in Smart Contracts

Tilburg Law School
96
5.

The Evolution of Good Faith in Western Contract Law

Yeshiva University, Benjamin N. Cardozo School of Law, Students
89
6.

Personalizing Mandatory Rules in Contract Law

University of Chicago Law School and Tel Aviv University
86
7.

The Impact of the French Doctrine of Significant Imbalance on International Business Transactions

HEC Paris - Tax & Law, Université Côte d'Azur and HEC Paris
74
8.

Contract Law and the Common Good

University of Minnesota Law School
70
9.

The Mistake About Mistakes: Rethinking Partial Restitution

Tel Aviv University and Bar-Ilan University - Faculty of Law
65
10.

Breach of Contract and Damages for Non-Pecuniary Loss

Tilburg University - Private Law Department
61

 

July 12, 2018 in Recent Scholarship | Permalink

Wednesday, July 11, 2018

14th Annual International Conference on Contracts (KCON XIV)

As you may recall, the 14th Annual International Conference on Contracts (KCON XIV) will be held at Tulane University Law School on March 8 and 9, 2019.  The conference website is now active, although we will not start accepting conference registrations and payments until August.  The website does, however, contain a call for papers and proposals, as well as a variety of general information (including information on accommodations).  To reach the website, click here.  

If you have questions or encounter problems, please e-mail me (off list) at mwessman@tulane.edu.  We look forward to seeing you in New Orleans next March.

July 11, 2018 | Permalink

Tuesday, July 10, 2018

Passport Issuance Not a Contractual Activity

Perhaps unsurprisingly, the Seventh Circuit Court of Appeals has held that a nation state issuing a passport to one of its citizens cannot be sued for breach of contracts or a tort, for that matter.

Chinyere Nwoke sued the a consulate of Nigeria after paying $500 for passports for her and her son that she never received.  Arguing breach of contract, the district court dismissed her claim under the Foreign Services Immunity Act.  On appeal, Ms. Nwoke invoked the exception for acts “based upon a commercial activity.”  Unknown

A foreign state is immune for federal jurisdiction for its “sovereign or public acts,” but not its acts that are “private or commercial in nature.”  Ms. Nwoke argued that the consulate’s actions were commercial because it was “making a profit from a fraudulent activity” (presumably charging for passports never actually issued).  However, courts do not consider a nation state’s motivation in determining whether an activity is sovereign or commercial.  Because private persons cannot issue passports, the consulate’s activities were of a sovereign nature and immunity thus applied.

This case makes sense, but is of course nonetheless unfortunate for Ms. Nwoke, whose only channel of complaint now seems to be to the government of Nigeria; a case of complaining to the very wrongdoer that oversaw the wrong. Government corruption remains a serious issue around the world.  

The case is Nwoke v. Consulate of Nigeria, 2018 WL 3216888

July 10, 2018 in Government Contracting, Miscellaneous | Permalink

Friday, July 6, 2018

Weekly Top Ten SSRN Contracts & Commercial Law Downloads for July 6, 2018

Top Ten Infinity

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 07 May 2018 - 06 Jul 2018
Rank Paper Downloads
1.

Data Pollution

University of Chicago Law School
196
2.

Legal Engineering on the Blockchain: 'Smart Contracts' as Legal Conduct

Swinburne University of Technology - Swinburne Law School and University of Melbourne, Law School
173
3.

The Stakes of Smart Contracts

University of Arizona - James E. Rogers College of Law
164
4.

Teaching Fairness to Artificial Intelligence: Existing and Novel Strategies Against Algorithmic Discrimination Under EU Law

Humboldt University of Berlin
154
5.

Secured Transactions and IP Licenses: Comparative Observations and Reform Suggestions

University of Nottingham - School of Law
150
6.

The Interpretation and Effect of Permissive Forum Selection Clauses Under U.S. Law

Indiana University Bloomington Maurer School of Law
135
7.

Force Majeure and Excuses in Smart Contracts

Tilburg Law School
92
8.

Equity as Supplemental Law

Notre Dame Law School
90
9.

Collateral Damage: Brexit's Negative Effects on Regulatory Competition and Legal Innovation in Private Law

University of Oxford
88
10.

Contract and Consumer Law

Tilburg Law School
83

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 07 May 2018 - 06 Jul 2018
Rank Paper Downloads
1.

Data Pollution

University of Chicago Law School
196
2.

The Stakes of Smart Contracts

University of Arizona - James E. Rogers College of Law
164
3.

Secured Transactions and IP Licenses: Comparative Observations and Reform Suggestions

University of Nottingham - School of Law
150
4.

A Duty to ‘Save’ Seemingly Non-Compliant Tenders for Public Contracts? - Comments on Art 72 of the 2017 Portuguese Code of Public Contracts

University of Bristol - School of Law
146
5.

The Interpretation and Effect of Permissive Forum Selection Clauses Under U.S. Law

Indiana University Bloomington Maurer School of Law
135
6.

Force Majeure and Excuses in Smart Contracts

Tilburg Law School
92
7.

The Evolution of Good Faith in Western Contract Law

Yeshiva University, Benjamin N. Cardozo School of Law, Students
86
8.

Contract and Consumer Law

Tilburg Law School
83
9.

Personalizing Mandatory Rules in Contract Law

University of Chicago Law School and Tel Aviv University
81
10.

The Impact of the French Doctrine of Significant Imbalance on International Business Transactions

HEC Paris - Tax & Law, Université Côte d'Azur and HEC Paris
73

July 6, 2018 in Recent Scholarship | Permalink

Thursday, July 5, 2018

Classic Case on Choice of UCC or Common Law

A recent Indiana case demonstrates the continued necessity of distinguishing between the common law and the UCC.  Nothing too new in the case legally as I see it, but it lends itself well to classroom use. Unknown

A medical center entered into two contracts with a medical billing services company for records-management software and related services.  In Indiana and elsewhere, “where a contract involves the purchase of preexisting, standardized software, courts treat it as a contract for the sale of goods governed by the UCC.  However, to determine whether the UCC applies to a mixed contract for both goods and services, Indiana uses the “predominant thrust test.”  Courts ask whether the predominant thrust of the transaction is the performance of services with goods incidentally involved or the sale of goods with services incidentally involved. Id. To determine whether services or goods predominate, the test considers (1) the language of the contract; (2) the circumstances of the parties and the primary reason they entered into the contract; and (3) the relative costs of the goods and services.

In the case, the contractual language was neutral.  Next, the primary reason for executing the agreements was to obtain billing services.  The software was merely a conduit to transfer claims data to the billing services company in order to allow it to perform those services.  The goods – the software – were incidental.  The third and final factor—the relative cost of the goods and services—also pointed toward that conclusion.  As the Indiana Supreme Court has explained, “[i]f the cost of the goods is but a small portion of the overall contract price, such fact would increase the likelihood that the services portion predominates.”  Under the agreement, the medical center paid a one-time licensing fee of $8,000 for software; a one-time training fee of $2,000; and $224.95 each month for services and support for about nine years.  Thus, for the life of the Practice Manager agreement, the services totaled approximately $26,294—more than three times the $8,000 licensing fee for the software.  Under the agreement, the medical center also paid a one-time licensing fee of $23,275 for the software; a one-time training fee of $4,000; and $284 per month for services and support for about six years.  Thus, the services totaled about $24,448—slightly more than the $23,275 software licensing fee. The relative-cost factor reinforces the conclusion that services predominated.  Thus, the ten-year common-law statute of limitations and not the four years under the UCC applied. Unknown-1

Interestingly, the case also shows that because the UCC did not apply, plaintiff’s claim for good faith performance under the UCC dropped out too.  In Indiana, a common-law duty of good faith and fair dealing arises “only in limited circumstances, such as when a fiduciary relationship exists,” which was not the case here.  The parties were thus not under a duty to conduct their business in good faith. Yikes!  This should allow for some good classroom discussions.

The case is Pain Center of SE Indiana LLC v. Origin Healthcare Solutions LLC

July 5, 2018 in Contract Profs, Miscellaneous, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)

Wednesday, July 4, 2018

Pleading breach of contract adequately

Here's a short case out of the District of New Jersey, Hall v. Revolt Media & TV, LLC, Civil Action No. 17-2217 (JMV) (MF), in which the plaintiff failed to adequately plead his breach of contract claim. I'm blogging it because I don't spend a lot of time teaching my students about complaint-drafting; there are always just so many other things I'm quickly trying to discuss. But this case strikes me as a nice straightforward way to talk about it. The claim fails because all of the plaintiff's allegations were about contract negotiations: He contacted the defendant to discuss a contract, he sent the defendant a contract that was never signed, he continued to attempt to contact the defendant to negotiate the contract, etc. The court said there was never an allegation that any contract had actually been finalized. Nor did the complaint contain any details about the terms of the contract, such that the court could not tell what had allegedly been breached. I think this can be used as a way to focus the students on what they do need to be sure to include in breach of contract allegations. 

And being sure to also plead promissory estoppel would be a good idea. The complaint did adequately plead unjust enrichment, so this case can act as a good way to teach the distinctions of that cause of action as well. 

July 4, 2018 in Commentary, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)

Monday, July 2, 2018

An "exceedingly rare" case where a court discounted testimony, relying in part on the witness's admitted "habit of routinely lying" in the course of business

A recent case out of Michigan, Strategy and Execution Inc. v. LXR Biotech LLC, No. 337105, speaks to the perils of not putting agreements in writing (or doing so and subsequently losing the writing). The parties had a written contract that stated that they would arrive at performance criteria at a later time. But the parties disputed ever entering into a later agreement over the performance criteria. No party produced any written document. LXR's principal testified that the parties reached an oral agreement that he memorialized in writing but the writing was later lost. However, this testimony was not corroborated by any other witness except for one who gave "conflicting testimony" regarding the document. LXR's principal had admitted to "routinely lying" because he apparently thought it to be "good business practice." Furthermore, none of the "voluminous" emails exchanged between the parties ever referenced any agreement on the performance criteria. The court therefore agreed that "this is one of the exceedingly rare cases in which a witness's testimony is insufficient to find a jury question." Despite the testimony, the court was permitted to enter a directed verdict on the breach of contract claim. 

Written contracts are not always required, but this case is an example of why they are often desirable to have, and to keep safe!

(There were other points of appeal in the case relating to other clauses of  the contract and some jury instruction issues.)

July 2, 2018 in Commentary, Recent Cases, Teaching, True Contracts, Web/Tech | Permalink | Comments (0)

Friday, June 29, 2018

If you want something specific, ask for it in your contract

A recent case out of the Second Circuit, Ortho-Clinical Diagnostics Bermuda Co. Ltd. v. FMC, LLC, No. 17-2400-cv (behind paywall), is another case about interpretation of contract terms -- twice over. Because here the parties entered into a contract, fought over breach of that contract, and then entered into a settlement agreement, which they were also fighting over. The moral is that, if you want something specific, you should ask for it rather than relying on unspoken industry practices. 

The initial agreement between the parties was about an IT operating system. Although the system was going to cost $70 million, the contract wasn't very detailed, with no technical specifications or description of building methods. The parties' relationship deteriorated and they eventually entered into a Settlement Agreement to terminate the project. Under these new terms, FCM would be released from its obligation to provide the system to Ortho, while providing assistance while Ortho transitioned to a different contractor. After execution of the Settlement Agreement, Ortho apparently realized that FCM was not as far along as Ortho had thought and had not prepared certain items that Ortho had assumed it had prepared, and so Ortho claimed that as a result the IT system cost more and took longer. 

The court, however, noted that there was nothing in the contract requiring FCM to produce the certain deliverables Ortho had been looking for. Ortho claimed it was "standard practice in the industry," but the court said that wasn't the equivalent of it being a contractual obligation. FCM was contractually required to provide assistance -- no more, no less. There was nothing in the contract about the job having to be at a particular stage of completion, or that any particular deliverables or documentation had to exist. 

The court also pointed out that Ortho had released its claims regarding the original agreement in the Settlement Agreement. Ortho tried to argue that it had released claims but not damages but the court called that "a nonsensical reading." 

June 29, 2018 in Commentary, Law Schools, Recent Cases, Teaching, True Contracts, Web/Tech | Permalink | Comments (0)

On Ambiguity: 80 Example Exercises from D.C. Toedt

Metal Fan CartoonNothing communicates the meaning and effects of ambiguity like a good example. So how about eighty of them in one place? 

Our friend over at the On Contracts blog, D.C. Toedt (Houston), has generously posted a collection of 80 exercises illustrating textual ambiguity. The sources vary widely, ranging from legal and religious texts to news items, popular culture, and even comic strips. Toedt uses the exercises in his contract-drafting course, challenging students to rewrite to clarify the meaning. The examples would work well in teaching ambiguity and contract interpretation in the 1L doctrinal course, as well.   

And let's face it: In addition to being pedagogically useful, ambiguities can be downright funny. Enjoy the list! 

June 29, 2018 in Teaching, Weblogs | Permalink

Thursday, June 28, 2018

Weekly Top Ten SSRN Contracts & Commercial Law Downloads for June 28, 2018

Top-10 Scrolling

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 29 Apr 2018 - 28 Jun 2018
Rank Paper Downloads
1.

Data Pollution

University of Chicago Law School
180
2.

Legal Engineering on the Blockchain: 'Smart Contracts' as Legal Conduct

Swinburne University of Technology - Swinburne Law School and University of Melbourne, Law School
151
3.

The Stakes of Smart Contracts

University of Arizona - James E. Rogers College of Law
149
4.

Teaching Fairness to Artificial Intelligence: Existing and Novel Strategies Against Algorithmic Discrimination Under EU Law

Humboldt University of Berlin
144
5.

The Interpretation and Effect of Permissive Forum Selection Clauses Under U.S. Law

Indiana University Bloomington Maurer School of Law
131
6.

Secured Transactions and IP Licenses: Comparative Observations and Reform Suggestions

University of Nottingham - School of Law
126
7.

Collateral Damage: Brexit's Negative Effects on Regulatory Competition and Legal Innovation in Private Law

University of Oxford
86
8.

Equity as Supplemental Law

Notre Dame Law School
86
9.

Force Majeure and Excuses in Smart Contracts

Tilburg Law School
84
10.

Contract and Consumer Law

Tilburg Law School
80

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 29 Apr 2018 - 28 Jun 2018
Rank Paper Downloads
1.

Data Pollution

University of Chicago Law School
180
2.

The Stakes of Smart Contracts

University of Arizona - James E. Rogers College of Law
149
3.

A Duty to ‘Save’ Seemingly Non-Compliant Tenders for Public Contracts? - Comments on Art 72 of the 2017 Portuguese Code of Public Contracts

University of Bristol - School of Law
144
4.

The Interpretation and Effect of Permissive Forum Selection Clauses Under U.S. Law

Indiana University Bloomington Maurer School of Law
131
5.

Secured Transactions and IP Licenses: Comparative Observations and Reform Suggestions

University of Nottingham - School of Law
126
6.

Force Majeure and Excuses in Smart Contracts

Tilburg Law School
84
7.

Contract and Consumer Law

Tilburg Law School
80
8.

The Evolution of Good Faith in Western Contract Law

Yeshiva University, Benjamin N. Cardozo School of Law, Students
80
9.

Personalizing Mandatory Rules in Contract Law

University of Chicago Law School and Tel Aviv University
79
10.

Privacy Remedies

Florida State University - College of Law
73

June 28, 2018 in Recent Scholarship | Permalink

Wednesday, June 27, 2018

Your contract should say what you want; fancier terms are not always a good thing

A recent case out of the Southern District of New York, Treasure Chest Themed Value Mail, Inc. v. David Morris International, Inc., 17 Civ. 1 (NRB), deals with a digital marketing contract, presenting a variety of straightforward interpretation questions that could be helpful for basic examples for some things to look out for in contract drafting. 

The parties entered into a contract in which Treasure Chest was required to provide "greater than 300,000 follow up weekly digital impressions." The first dispute was over whether "digital impressions" was too ambiguous to be enforced. The court, however, easily defined "digital impression" with reference to investopedia.com. The court distinguished "digital impression" from "email," saying if the parties had meant "email" they would have used the word "email." A lesson in just using what you wish to say if that's indeed what you want; fancier terms are not always necessary and might just leave some room open for arguments about ambiguity and interpretation. 

There was also a dispute over whether it was ambiguous that compensation was "up to" a certain amount. But the court disagreed, saying it was clear that this simply meant the contract would not exceed a certain amount. 

Therefore, the court found there was a valid contract, that Treasure Chest fulfilled all of its obligations under the contract, and David Morris did not, so Treasure Chest was entitled to damages. Treasure Chest also sought attorneys' fees, but the court found that the contract was not clear enough to justify attorneys' fees. The contract said that "costs necessary to collect" past due balances could be awarded, but the court said that did not satisfy the "high standard" for collection of attorneys' fees via contract. Again, if attorneys' fees are what you want, attorneys' fees are probably what you should say. 

June 27, 2018 in Commentary, Recent Cases, Teaching, True Contracts, Web/Tech | Permalink | Comments (0)

Thursday, June 21, 2018

Robert Ahdieh named dean at Texas A&M University School of Law

Forgive my taking an editor's privilege here to share an exciting announcement from my home institution. We are thrilled to have Bobby Ahdieh joining our faculty as dean!

*************

Ahdieh-robertTexas A&M University has appointed Robert B. Ahdieh as dean and holder of the Anthony G. Buzbee Endowed Dean’s Chair at its School of Law, located in Fort Worth.

Ahdieh is currently the K.H. Gyr Professor of Private International Law and Director of the Center on Federalism and Intersystemic Governance at Emory University School of Law in Atlanta, Georgia.

University officials say the School of Law has made unprecedented strides since joining the Texas A&M community in 2013, currently ranking among the top 80 law schools in the nation according to U.S. News & World Report. Officials say the School of Law’s forward progress is due to a number of efforts which include increasing its entering class profile; hiring a cohort of nationally recognized scholars who have added to the research strengths of the existing faculty; and enhancing its academic programs, allowing it to offer a rich educational experience to its students.

“We couldn’t be more proud of what our law school faculty, staff, and students have achieved during the School of Law’s first few years as part of Texas A&M,” said Texas A&M University President Michael K. Young. “With the university’s support and Bobby Ahdieh’s vision, scholarly reputation and administrative experience, we are well-positioned to accelerate the law school’s progress even more in the years to come.”

As dean, Ahdieh will oversee all academic and operational affairs of the law school, and will report to Texas A&M Provost and Executive Vice President Carol Fierke, who in announcing his appointment, emphasized Ahdieh’s achievements as a leader in the field of legal education, his significant administrative experience as vice dean and associate dean of faculty at Emory University, and the strength of his scholarly credentials. In particular, she highlighted his record of success in a variety of critical areas, including admissions, alumni relations, career development, faculty appointments and development, interdisciplinary initiatives, and the development of non-JD degree programs during his tenure at Emory.

Ahdieh holds a Bachelor of Arts from Princeton University’s Woodrow Wilson School of Public and International Affairs and a Juris Doctor from Yale Law School. He served as law clerk to Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit before his selection for the Attorney General’s Honors Program of the Civil Division of the U.S. Department of Justice.

His scholarly interests revolve around questions of regulatory and institutional design, especially in the business and financial arena. In addition to a monograph on legal transition in the former Soviet Union, published while he was still in law school, Ahdieh’s work has appeared in leading journals including the NYU Law Review, the Michigan Law Review, the Minnesota Law Review, the Boston University Law Review, and the Southern California Law Review.

TAMU Law buildingfrontIn accepting the position, Ahdieh reflected on the significant potential of the law school, saying, “I believe no law school in the country has traveled further, in so short a time. Nor does any have more upside potential, going forward.”

Among the key priorities for the School of Law in the coming years, say university officials, will be continuing to build a world-class faculty and ensuring that faculty have the resources necessary to produce research of consequence and significance; extending the audience for a Texas A&M legal education beyond students seeking a three-year J.D., including through new and expanded non-J.D. programs; and enhancing the scope of the law school’s external engagement through active outreach to the community, graduates, and colleagues in legal academia – an effort that will require the active participation of faculty and staff.

Continued investment in faculty excellence and in the recruitment of great students, systematic efforts to increase awareness of the school’s achievements, a focused fundraising campaign, and employer outreach targeted to improving the quantity and quality of placement opportunities available to students around Texas, the United States, and around the world are particular initiatives Ahdieh says he plans to undertake upon taking up the deanship on July 15.

Young and Fierke acknowledged the work of the Search Advisory Committee and thanked Professor Thomas W. Mitchell for his invaluable service as interim dean over the last year.

About Texas A&M University

Texas A&M, established in 1876 as the first public university in Texas, is one of the nation’s largest universities with more than 66,000 students and more than 440,000 living alumni residing in over 150 countries around the world. A tier-one university, Texas A&M holds the rare triple land-, sea- and space-grant designation. Research conducted at Texas A&M represented annual expenditures of more than $905.4 million in fiscal year 2017. Texas A&M’s research creates new knowledge that provides basic, fundamental and applied contributions resulting, in many cases, in economic benefits to the state, nation and world. The school’s Lead by Example campaign is a comprehensive effort to raise $4 billion by the year 2020, making it the largest higher education campaign in Texas history and the second largest conducted nationally by a public university. Aggies are known for their deep commitment to the success of each other and a strong desire to serve.

###

Media Contact:  Kelly Brown, kelly.brown@tamu.edu.

June 21, 2018 in Law Schools | Permalink

Return of the Weekly Top Ten! Contracts & Commercial Law Downloads for June 21, 2018

Top10 Storm Troopers

After a thoroughly unplanned hiatus for early 2018, the Weekly Top Ten SSRN Downloads List returns to ContractsProf Blog.  Hot topics include smart contracts, forum selection, and good faith. Enjoy!

 

Top SSRN Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 22 Apr 2018 - 21 Jun 2018
Rank Paper Downloads
1.

Data Pollution

University of Chicago Law School
151
2.

Legal Engineering on the Blockchain: 'Smart Contracts' as Legal Conduct

Swinburne University of Technology - Swinburne Law School and University of Melbourne, Law School
138
3.

The Stakes of Smart Contracts

University of Arizona - James E. Rogers College of Law
127
4.

The Interpretation and Effect of Permissive Forum Selection Clauses Under U.S. Law

Indiana University Bloomington Maurer School of Law
123
5.

Teaching Fairness to Artificial Intelligence: Existing and Novel Strategies Against Algorithmic Discrimination Under EU Law

Humboldt University of Berlin
116
6.

Secured Transactions and IP Licenses: Comparative Observations and Reform Suggestions

University of Nottingham - School of Law
116
7.

Why Markets? Welfare, Autonomy, and the Just Society

Tel Aviv University - Buchmann Faculty of Law
103
8.

Collateral Damage: Brexit's Negative Effects on Regulatory Competition and Legal Innovation in Private Law

University of Oxford
82
9.

Equity as Supplemental Law

Notre Dame Law School
82
10.

Contract and Consumer Law

Tilburg Law School
74
 

Top SSRN Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 22 Apr 2018 - 21 Jun 2018
Rank Paper Downloads
1.

The Forgotten History of Metes and Bounds

University of Virginia - School of Law
292
2.

Data Pollution

University of Chicago Law School
151
3.

A Duty to ‘Save’ Seemingly Non-Compliant Tenders for Public Contracts? - Comments on Art 72 of the 2017 Portuguese Code of Public Contracts

University of Bristol - School of Law
140
4.

The Stakes of Smart Contracts

University of Arizona - James E. Rogers College of Law
127
5.

The Interpretation and Effect of Permissive Forum Selection Clauses Under U.S. Law

Indiana University Bloomington Maurer School of Law
123
6.

Secured Transactions and IP Licenses: Comparative Observations and Reform Suggestions

University of Nottingham - School of Law
116
7.

Contract and Consumer Law

Tilburg Law School
74
8.

The Evolution of Good Faith in Western Contract Law

Yeshiva University, Benjamin N. Cardozo School of Law, Students
74
9.

Force Majeure and Excuses in Smart Contracts

Tilburg Law School
72
10.

Interpreting Contracts Without Context

University of North Carolina School of Law and University of North Carolina School of Law
67

June 21, 2018 in Recent Scholarship | Permalink

Wednesday, June 20, 2018

Is the viral umpire video a breach of contract?

Recently a video went viral showing a 2016 altercation around an umpire ejecting Mets pitcher Noah Syndergaard after he threw a fastball behind the Dodgers' Chase Utley. Umpires wear microphones during Major LeagueBaseball games, and the resulting (often loud and profane) discussions with Mets players and especially Mets manager Terry Collins was recorded. 

The video recently surfaced in an apparent leak, because MLB has announced its intention to try to scrub the video from the internet. MLB's reason for this is that it violates a "commitment" that "certain types of interactions" involving umpires during baseball games would not be made public, claiming it was "in the collective bargaining agreement" and that there was "no choice" but to scrub the video from the internet. Indeed, according to one report it had already been scrubbed

Not so fast, though, because I found it still embedded in news reports about it. It's hard to get anything to vanish from the internet, especially once it's gone viral, but it's not that difficult to locate this video at all. 

And it's not hard to see why it went viral. It's a fascinating glimpse into a part of the game fans seldom get to see. As others have pointed out, the umpire does a fantastic job in the clip, so it's hardly like he's being cast in a bad light. The manager doesn't even come across all that poorly. In fact, in my opinion, the party that comes out of the clip looking the worst is Major League Baseball and its confusing way of handling the explosive Chase Utley situation. 

It's unclear what "interactions" were agreed to be withheld from the public, but this one is certainly an interesting one. I'd love to know what the contract terms actually are. 

June 20, 2018 in Commentary, Current Affairs, Film, In the News, Labor Contracts, Sports, Television, True Contracts, Web/Tech | Permalink | Comments (0)

Monday, June 18, 2018

A warning against trying to "nebulously" slip in language that would change an agreement's meaning

A recent case out of the District of Arizona, Colocation America Corporation v. Mitel Networks Corporation, No. CV-17-00421-PHX-NVW (behind paywall - h/t to reader D.C. Toedt for the non-paywall link!), is, in its own words, "a poster child for the rule of Section 201(2) of the Restatement." 

The dispute was over whether or not an agreement between the parties to transfer a domain name also involved the transfer of IP addresses. The section at issue was ambiguously worded: "Mitel hereby agrees to quit claim . . . the goodwill of the business connected with and symbolized by [the] Domain Name and the associated IPv4 134.22.0.0/16 and any associated trade dress . . . ." Mitel claimed this required it to quit claim the goodwill of the business associated with the IP addresses. Colocation contended Mitel was required to quit claim the goodwill AND the IP addresses AND the trade dress. 

The court found that the wording was ambiguous but that the rest of the contract supported Mitel's interpretation, since the contract did not mention the IP addresses anywhere else. At every other point the contract discussed the transfer only of the domain name. There were no clauses about the transfer of the IP addresses other than that one mention in the clause quoted. 

Furthermore, the court found that Mitel had no reason to know Colocation thought it was acquiring the IP addresses. By contrast, though, Colocation did have reason to know that Mitel thought the agreement was not about the IP addresses. In fact, evidence showed that Colocation "intentionally misled" Mitel by pretending to wish to buy only the domain name and keeping all discussions domain-name focused, while "nebulously" slipping the IP addresses into the contract. The IP addresses were worth far more than the amount the parties agreed on for transferring the domain name, and the court found that this was further proof Colocation knew that Mitel only intended to transfer the domain name, not the IP addresses. 

As the court summarized,

"Colocation's objective from the outset was to acquire the IPv4 addresses. But it purported to negotiate only for a domain name without ever leveling with Mitel Networks. Colocation not only had 'reason to know' Mitel Networks attached a 'different meaning' to their agreement, it created and promoted that different meaning on the part of Mitel Networks. Thus, the Domain Name Assignment Agreement must be interpreted in accordance with the meaning attached by Mitel Networks, that is, as an agreement to assign a domain name and goodwill and not as an agreement to transfer IPv4 addresses."

June 18, 2018 in Recent Cases, True Contracts, Web/Tech | Permalink | Comments (2)

Friday, June 15, 2018

It's True: People Really Are Getting Dumber and Dumber

New scientific studies have proven what we might all have been jokingly saying, but which apparently is true: the world population is increasing, but IQ levels are decreasing.   The reason?  Nurture, not nature. 

The studies claim that after 1975, IQ levels started to drop because of, it is thought, "environmental factors."  These could include pollution, changes in the education system and media environment, nutrition, reading less, and being online more.   Yikes.

"It's not that dumb people are having more kids than smart people, to put it crudely. It's something to do with the environment, because we're seeing the same differences within families," said one of the co-authors and lead researchers on the project.

For us, this is not good news for obvious reasons.  But are we, in fact, a contributing cause?  I know that some of my students, for example, do not enjoy and sometimes simply will not read long homework assignments, don't read privately, and indeed spend large amounts of time online.  I'm sure your students are not very unlike mine in that respect.  Other studies that I don't have handy here also demonstrate that our students have difficulty reading longer texts simply because they are not used to reading anything much longer than blog posts, twitter feeds, and maybe the occasional article here and there, but certainly not books.  

Read the entire findings.  References to "changes in the education system" and "decreasing access to education" are disturbing.

 

 

June 15, 2018 in Commentary, Contract Profs, In the News, Law Schools, Miscellaneous, Science, Teaching | Permalink | Comments (1)

Wednesday, June 13, 2018

Employees Beware: You are Contractually Presumed to be At-will

A new case out of Minnesota and subsequently the United States Court of Appeals for the Eighth Circuit once again confirms what we suspect already: if there is any doubt about an employee’s status, he or she is likely to be held to be an at-will employee.  Consider this:

Daniel Ayala is hired as an at-will employee in 2006 to serve as a vice president for CyberPower.  In 2012, Ayala and CyberPower agree to convert his position to executive vice president for sales and general manager for Latin America. The written contract details his salary and compensation status, stating that the agreement “outlines the new salary and bonus structure to remain in place until$150 million USD [sic] is reached.  It is not a multiyear commitment or employment contract for either party” (emphasis added).  Ayala is fired before sales could reach $150.  He claims breach of contract, contractual fraud, and unpaid wages, arguing that he was no longer an at-will employee, but rather should have been allowed to remain with the company at least until, as stated in the contract, the sales reached $150 million.  CyberPower also relies on the contractual language, arguing that it unambiguously did notmodify his status as an at-will employee as contained the phrase that it was “not a multiyear commitment or employment contract.” Unknown

The appellate court agreed with CyberPower, highlighting the fact that the text of the agreement indicates that it governed compensation only.  In Minnesota, there is a “strong presumption of at-will employment” which was applied here. The court also pointed out that Ayala did not produce any evidence supporting his claim that the company defrauded him by promising a definite term of employment and then firing him before the completion of the term.

Fair enough, it seems… until you consider the following as well: Ayala performed very well in his first sales position, bring the company’s annual sales from “virtually nothing” to almost $50 million by 2012.  He aspired to become the company’s president when the original president, Robert Lovett, decided to retire.  Lovett allegedly assured Ayala that he would be considered for that position but - surprise! - chose his son Brent as his successor when he retired in 2012.  Ayala then expressed his desire to leave the company, but was persuaded to stay to mentor Brent (thus expecting Ayala to train his own replacement, in effect.). Ayala was assured that if he stayed, he would receive “better compensation, a promotion and a written contract ensuring Ayala long-term employment.”  He was indeed promoted and, per the contract, promised to be able to stay “until” sales reached a certain amount, if the contractual language had been weighed that way.  Further, the contract does not say that his position was in fact at-will.  His previous contract had, in contrast, specifically said so. Images

Because of the parol evidence rule and, probably, the lack of written evidence of the negotiation statements, Ayala lost.  The presumption about at-will employment may have been correctly applied.  Not all court cases are resolved in a fair way for the employees.  But the case clearly reeks of nepotism, luring an employee to stay with a company under false pretenses, and broken oral promises. True, Ayala did not have evidence of the oral negotiations, but neither did CyberPower.

Why is it apparently so darned important in U.S. society to treat employees as mere objects that can be disposed of at will, by definition?  Why would it be so horrible to have to give employees a decent amount of notice and perhaps even a reasonable reason for being let go?  Many other highly developed nations around the world – especially those in Europe – do not employ such law.  These nations do very well.  Companies there make good profits.  Employees have more job security.  They are equally, if not more, productive than American workers.  What’s so bad about that?! 

Clearly, cultural factors play a role in this context. That’s unlikely to change.  In the meantime, employees in the U.S. should continue to be critical towards oral promises made by their employers and get every important term in writing.  Of course, that is easier said than done in today’s often difficult job market and resulting reasonable fears of losing or not getting a coveted position. Employees such as Ayala should not be seen as mere impersonal chess pieces that can be manipulated and moved around for employer benefits only.  But they often are.

The case is Daniel Ayala v. CyberPower Systems (USA), Inc., 2018 WL 2703102.

June 13, 2018 in Commentary, Labor Contracts, True Contracts | Permalink | Comments (4)

Arbitration clause enforceability seems like a pretty safe bet these days

There is very little you can bet on in life but it seems like the continued prevalence of arbitration clauses is one of them. We just had a Supreme Court ruling confirming that, and a recent case out of Nebraska, Heineman v. The Evangelical Lutheran Good Samaritan Society, No. S-17-983, continues in the same vein. 

In the case, a nursing home resident sued the facility for injuries he sustained while living there. The nursing home facility sought to arbitrate the dispute under the arbitration clause Heineman agreed to before being admitted as a resident of the facility. The lower court refused to enforce the arbitration clause based on lack of mutuality of obligation as well as finding it contrary to public policy. The appellate court, however, disagreed. 

First, Heineman's argument on mutality of obligation concerned allegations that the nursing home facility had filed lawsuits against its residents without pursuing arbitration first. Heineman therefore argued that the nursing home's conduct indicated that only Heineman was bound by the arbitration clause. However, Heineman's argument depended on the court taking judicial notice of those lawsuits, considering that, as drafted, the arbitration clause did bind the nursing home. For some reason, though, this was apparently not an argument Heineman made at the lower court level, because the appellate court refused to take judicial notice of the lawsuits because they had not been presented to the trial court.

As far as the public policy concern went, the lower court had relied on a federal regulation prohibiting arbitration clauses as a requirement for admission to long-term care facilities. However, that regulation was passed almost two years after Heineman signed his arbitration clause, and at any rate has been enjoined from application by a federal court. Because there was no other legislation expressing a public policy against arbitration in the context of nursing-home facilities, the court found the arbitration clause was enforceable.

June 13, 2018 in Commentary, Current Affairs, Recent Cases, True Contracts | Permalink | Comments (0)