ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Friday, November 21, 2014

Happy Thanksgiving: Here's a Special Adhesion Contract Just for You

A student shared with me this flyer that her father received.  I have provided a large reproduction so that readers can read the fine print, which is really the focus of this post.

IMG_0663

 On my reading, the meaning of this is as follows: if

  • You made the mistake of having previously subscribed to the newspaper; and
  • You have the temerity to continue living at the same address; and
  • You do nothing else,

A newspaper will be delivered to you on Thanksgiving.  

Regardless of what you do with it, your inaction will be deemed consent to future deliveries and you will be charged unless you call the newspaper and put a stop to it.  

This "offer" is a turkey, and those receiving it should tell the newspaper to stuff it.

November 21, 2014 in Commentary, True Contracts | Permalink | Comments (2) | TrackBack (0)

Farewell Meredith!

MeredithMeredith Miller started blogging here before I did.  She holds the record for the contributing editor with the longest tenrue on the blog.  

Her lively, quirky posts were one of the things that attracted me to this site and made it worthwhile to keep coming back.  She has been a steady companion, sounding board and dedicated contributor to our blog, and we will miss her contributions.

But life moves on, and we can only thank Meredith and wish her well in her new endeavors.  In her farewell e-mail to the rest of us, Meredith referenced her blogger's guilt.  Blogs are like sharks; they either move or die.  There have been many weeks when I despaired of finding the time and the content to keep this blog lively when Meredith would post a story that I knew would attract interest and buy the rest of us some time away from the blog.  After nearly ten years of providing us stories and laughts, he has certainly earned her release from blogger's guilt. 

I am hoping to compile a top ten list next week of my favorite Meredith posts.  Please feel free to nominate your favorites in the comments.

November 21, 2014 in About this Blog, Commentary | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Styl'n at the International Commercial Arbitration Moot

 

Joe_cocker_1970

In a couple of previous posts I've described the International Commerical Arbitration Moot (ICAM) and detailed some aspects of  this year's problem. None of this is news  to the contracts, sales, and arbitration professors around the country who are involved in this activity. Still I am surprised at how many schools do not have teams. I have also noted the possible use of the yearly ICAM problem as a source or inspiration of exam questions. 

For professors who are interested in starting a team there are many things to consider other than substance. These involve selecting and preparing a team.  Here at Florida this means trimming a class of 30 or so  hopeful students down to a team of 4 to 6.  It is a complicated task. We try as much as possible to hold try outs that resemble the actual competition in Vienna.  Other coaches know that the ICAM competition requires students to know the facts and law with precision and to have certain mannerisms that the mainly European judges find appealing.  For example, speaking slowly is critical since many if not most judges will have English as a second language. Also, the closer the English spoken is to British English, the better. Why? Most of the arbitrators will have learned English abroad. The use of virtually any slang means you should move up your departure date from Vienna because you will not go far in the competition.  "Gonna" must be "going to." "Wanna" must be "want to." No "big bucks." No "you guys." etc.  If there such a thing as an eloquent yet casual style, that seems to work best. Yes, theater is involved and the coaches are directors as much as teachers. Even "costumes" seem to count. I watched a rather uncomfortable session in which an arbitrator dressed down a competitor who had, well,  "dressed down"  by not having the top button of his shirt buttoned. I think most coaches would agree the competition starts when the students arrive at the U.S. departure airport because from that point forward they may be rubbing shoulders with the arbitrators they will encounter in Vienna. 

 

November 20, 2014 in Contract Profs, Film, Miscellaneous, Television, Travel | Permalink | TrackBack (0)

Good Night and Good Luck

I have been a contributing editor at ContractsProf since 2005.  The blog has provided a wonderful platform to share contracts-related news stories (as bizarre as possible), summarize important recent cases and self-promote my scholarship.  When Frank Snyder roped me into this nearly a decade ago, alot of things were different in varying degrees, especially: the Internet, law schools and the market for legal services.  Frank told me at the time that blogging might seem thankless, but it is not.  He said that every so often you meet someone at a conference and they realize you are that person who pointed out the connection between Eminem and Sister Antillico and the NDA Justin Bieber presents to house guests.  Frank was right.  I've met a lot of great people through the blog and its lead to meaningful conversations about contract law and other things.

One of the most rewarding parts of blogging is the record of posts we've created over the years.  Sometimes I will do a "quick and dirty" search on Google for the answer to a contracts question and I find the answer on this blog.  

I have come to the realization that I just do not have the time to commit to the blog right now.  In fact, earlier this week I made a list of things I was going to quit (quite liberating; highly recommended).  I am clearing the decks to focus on writing projects and other pursuits, including my new role at Touro as Director of Solo & Small Practice Initiatives.  It is where my heart is right now, and I am going to follow that.

In short, thanks Jeremy and previous blog overlords for letting me holdover this long.

With much gratitude for this opportunity, here's a reprise of turkey leftovers in time for Thanksgiving.


Goodbye Movie Clips by Ian_Buckwalter

November 20, 2014 in About this Blog, Contract Profs | Permalink | TrackBack (0)

Wednesday, November 19, 2014

New in Print

Tuesday, November 18, 2014

Weekly Top Tens from the Social Science Research Network

Aided by the ContractsProf Blog BumpWhimsy Little Contracts is topping the charts.  Behold the power of the Blog!

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 134 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
2 104 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
3 94 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
4 92 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
5 83 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
6 74 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
7 71 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
8 69 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
9 62 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
10 57 Contractual Indescendibility 
David Horton 
University of California, Davis - School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 74 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
2 69 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
3 62 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
4 56 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School
5 54 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
6 50 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
7 49 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
8 47 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law 
9 40 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
10 37 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 

 

November 18, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 17, 2014

Weekly News Roundup

TiresAccording to this report in TireNews.com (and let's all give a round of applause to the Internet, because how else would I even know of the existence of Tire News?), Goodyear Tire & Rubber Co. is suing Sears, Roebuck & Co. and two subsisdiaries.  The suit, filed in Federal District Court in Akron where Goodyear is based, alleges breach of a 2009 agreement that called for Goodyear to make co-branded tires to be sold exclusively at Sears.  Based on Sears' sales predictions, Goodyear produced about 220,000 co-branded tires.  But in June, Sears decided to enter into a partnership with a different tire manufacturer and has refused to accept any more tires from Goodyear. Goodyear is seeking $18.9 million in damages, which represents the value of the co-branded tires.  For more coverage, you can check on this report in RubberNews.com.

Traut, Lieberman Straus & Shrewsberry, LLP report on Greenbelt Condominium v. 361 Manhattan Avenue LLC, et. al., in which the issue was an architect's liability for faulty construction in the five-story conversion and expansion of a one-story commercial building in Brooklyn, NY into condominum apartments.  Plaintiff alleged negligence and breach of contract.  The New York Supreme Court, New York County found that plaintiff's action sounded in contract not in tort and that the architect was not in privity with the plaintiff.  The court would not permit plaintiff's successor in interest argument to erode New York's privity law with respect to an architect's liability for breach of contract.  The court granted the defendant's motion to dismiss.

FootballIn the aftermath of revelations that the University of North Carolina created "paper classes," CNN.com reports here that one student athlete is now suing the University in a class action representing about 3100 students who allegedly participated in the fake classes.  The classes allegedly never met, and students got credit for them by writing a single paper.  The suit alleges breach of a promise to give plaintiff an education in return for his promise to play football.  The named plaintiff claims that he was drawn to UNC by promises that, whether or not he succeeded as a football player, he would emerge with a college degree.  Plaintiff was dismissed from the school in a cheating scandal, but he claims he was a scapegoat in the larger paper classes scandal.

Lyft, Inc. is suing its former Chief Operating Officer, Travis VanderZanden for breach of contract by breach of a confidentiality agreement and breach of fiduciary duty.  The complaint, provided by Scribd, can be viewed here.  After eighteen months at Lyft, VanderZanden had had enough, and he announced his intention to resign.  According to the complaint, while Lyft was negotiating with him, VanderZanden stopped showing up for work.  Two months later, Lyft learned that VanderZanden had been hired by its arch-rival, Uber, as Uber's Vice President of International Growth.  Lyft claims that when VanderZanden left the company, he took with him a Dropbox folder containing 98,000 files, including information belonging to the company.  VanderZanden also allegedly took with him his company phone which, instead of returning to the company, he claims to have sold on gazelle.com. 

Finally, we learn from Scribd that the Pennsylvania Superior Court issued its 15-page decision in Thogde v. Ladany, rejecting plaintiff's claim that she is entitled to $1.3 million is damages from Lehigh University.  She alleged that the university breached a contract with her when she was given  a C+ in a graduate course.  

November 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Contracts Issues in The Blues Brothers

In The Blues Brothers, the band performs at Bob's Country Bunker.  All things considered, the show goes rather well:

 

After the show, the Brothers ask to be paid.  The owner offered to pay $200 for the performance, but the band owed $300 for beer.  Elwood objects that they had been told that they would not have to pay for the first round, but the owner refuses to treat that as a waiver.  A student asked me about the scene, and I'm not sure how it might be resolved.  I would treat it as a matter of interpretation and expect that a court could hear expert testimony about the customary terms of contracts with bands at establishments such as Bob's Country Bunker.

But then there is a second issue (or third, if you think waiver is the second issue).  The Brothers got the gig by pretending to be another band, The Good Ole Boys.  So Bob has an argument that he was fraudulently induced to contract with Jake and Elwood.  If that is so, they might be better off seeking to recover in quantum meruit, since Bob told them "that's some of the best goddam music we've had in the Country Bunker in a long time."  The audience hurled what seemed like hundreds of bottles of beer at the band during the performance, so Bob must have made quite a bit in drink (or projectile) sales.  On the other hand, I don't know what it costs to clean up that mess.

Hat tip to Valpo 1L Brandon Carter for calling my attention to the scene and to the fact that he is watching old movies when he should be studying law!

November 17, 2014 in Commentary, Film, Film Clips | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 11, 2014

Weekly Top Tens from the Social Science Research Network

SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 114 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 113 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 100 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
4 92 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
5 84 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
6 76 Price Squeezes with Positive Margins in EU Competition Law: Economic and Legal Anatomy of a Zombie 
Nicolas Petit 
University of Liege - School of Law 
7 70 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
8 69 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
9 65 Insurance Agents in the 21st Century: The Problem of Biased Advice 
Daniel Schwarcz and Peter Siegelman 
University of Minnesota Law School and University of Connecticut - School of Law 
10 64 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 114 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 68 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
3 63 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School
4 59 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
5 50 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
6 50 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
7 49 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
8 49 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 
9 45 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law
10 37 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 

 

November 11, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 10, 2014

Weekly News Roundup

According to this report on the International Business Times website, two children, through their mother, are suing Malaysia Airlines for breach of contract and negligence in connection with their father's death on Flight MH370.  Plaintiffs allege that the airline breached a safety agreement that it entered into with their father and the other passengers on the flight.  

Epstein-wendy-tAs reported here in the Bellingham Herald, the Indiana Supreme Court heard arguments on October 30th about the state's contract with IBM to privatize its welfare services.  The state was so disappointed with IBM's performance that it cancelled the contract three years into a $1.3 billion, ten-year deal.  Friend of the blog, Wendy Netter Epstein (pictured), has written about this case in the Cardozo Law Review.

Sunday's New York Times Magazine has a cover story pondering whether lawyers are going to do to football what they did to tobacco.  As an example of what this might look like we have this case filed on October 27, 2014 on behalf of Julius Whittier and a class of plaintiffs who played NCAA football from 1960-2014,  never played in the NFL, and have been diagnosed with latent brain injury or disease.  Mr. Whittier suffers from early-onset Alzheimer's.  The complaint alleges, among other things, breach of contract, based on NCAA documents requiring each member instittuion to look after the physical well-being of student athletes.  

November 10, 2014 in Government Contracting, In the News, Recent Cases, Sports, Travel | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2014

Expensive Wine

Duff's Private ReserveAccording to this story from NJ.com, a customer in an Atlantic City restaurant bought a bottle of wine with dinner.  The server showed him a wine list and suggested a wine.  When he asked how much the wine cost, she said, "Thirty-Seven Fifty," which he understood to mean $37.50.  She meant $3,750, and the wine list so indicated, but the customer did not have his reading glasses with him.  It's an interesting fact pattern.

Fortunately, an episode of The Simpsons provides best practices in this area, as animated television sit-coms do in most areas.  In episode 8F09, Burns Verkaufen der Kraftwerk, Homer's stock in the Springfield nuclear plant went up for the first time in ten years.  He sells and makes a cool $25.  Soon thereafter, the value of Homer's stock rises to $5200, but that's another matter.

Homer conte1mplates his options and decides to buy beer.  The following conversation with Moe (of Moe's Tavern) ensues:

Moe: Want a Duff?

Homer (haughtily): No, I'd like a bottle of Henry K. Duff's Private Reserve.

Moe  (Gasping): Are you sure? 'Cause once I open the bottle, there's no refund.

See?  That's how it's done!

November 5, 2014 in Commentary, Food and Drink, In the News | Permalink | TrackBack (0)

New in Print

Pile of BooksLynn Foster,. The Hands of the State: The Railure to Vacate Statute and Residential Renants' Rights in Arkansas. 36 U. Ark. Little Rock L. Rev. 1 (2013)

Damien Geradin, The Meaning of "Fair and Reasonable" in the Context of Third-Party Determination of FRAND Terms, 21 Geo. Mason L. Rev. 919 (2014) 

Joshua D. Wright,  SSOs, FRAND, and Antitrust: Lessons from the Economics of Incomplete Contracts, 21 Geo. Mason L. Rev. 791 (2014) 

Duquesne

Duquesne Law Review Drafting Our Future: Contract Law In 2025, 

52 Duq. L. Rev. 263-413 (2014)

SYMPOSIUM ARTICLES

The Judicial Vision of Contract: The Constructed Circle of Assent and Unconscionability
John E. Murray, Jr. 

The Future of Fault in Contract Law
Robert A. Hillman 

Two Alternate Visions of Contract Law in 2025
Nancy S. Kim

The Future of Many Contracts
Victor P. Goldberg 

A Eulogy for the EULA
Miriam A. Cherry 

The Death of Contracts
Franklin G. Snyder & Ann M. Mirabito

November 5, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, November 4, 2014

New Scholarship on Consumer Misconceptions Regarding Arbitration Clauses

SovernJeff Sovern  (pictured), with whom readers may be familiar from our recent virtual symposium, has a new paper on SSRN, co-authored with three of his St. John's colleagues, Elayne E. Greenberg, Paul F. Kirgis, and Yuxiang Liu.

The paper is titled "'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements." Here’s the abstract, though there’s obviously a lot more in the paper itself:

 

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box or accepting a product. 

This article reports on an empirical study exploring the extent to which consumers are aware of and understand the effect of arbitration clauses in consumer contracts. We conducted an online survey of 668 consumers, approximately reflecting the population of adult Americans with respect to race/ethnicity, level of education, amount of family income, and age. Respondents were shown a typical credit card contract with an arbitration clause containing a class action waiver and printed in bold and with portions in italics and ALLCAPS. Respondents were then asked questions about the sample contract as well as about a hypothetical contract containing what was described as a “properly-worded” arbitration clause. Finally, respondents were asked about their own experiences with actual consumer contracts. 

The survey results suggest a profound lack of understanding about the existence and effect of arbitration agreements among consumers. While 43% of the respondents recognized that the sample contract included an arbitration clause, 61% of those believed that consumers would, nevertheless, have a right to have a court decide a dispute too large for a small claims court. Less than 9% realized both that the contract had an arbitration clause and that it would prevent consumers from proceeding in court. With respect to the class waiver, four times as many respondents thought the contract did not block them from participating in a class action as realized that it did, even though the class action waiver was printed twice in bold in the sample contract, including one time in italics and ALLCAPS. Overall, of the more than 5,000 answers we recorded to questions offering right and wrong answers, only a quarter were correct. 

Turning to respondents’ own lives, the survey asked if they had ever entered into contracts with arbitration clauses. Of the 303 respondents who claimed never to have done so and who also answered a question asking whether they had accounts with certain companies that include arbitration clauses in their contracts, 264, or 87%, did indeed have at least one account subject to an arbitration clause. 

These and other findings reported in this Article should cause concern among judges and policy-makers considering mandatory pre-dispute consumer arbitration agreements. Our results suggest that many citizens assume that they have a right to judicial process that they cannot lose as a result of their acquiescence in a form consumer contract. They believe that this right to judicial process will outweigh what one respondent referred to as a “whimsy little contract.” Our results suggest further that citizens are giving up these rights unknowingly, either because they do not realize they have entered into an arbitration agreement or because they do not understand the legal consequences of doing so. Given the degree of misunderstanding the results demonstrate, we question whether meaningful consent is possible in the consumer arbitration context.

November 4, 2014 in Contract Profs, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 107 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 94 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
3 87 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
4 73 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
5 68 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
6 63 Insurance Agents in the 21st Century: The Problem of Biased Advice 
Daniel Schwarcz and Peter Siegelman 
University of Minnesota Law School and University of Connecticut - School of Law 
7 61 The (Il)Legitimacy of Bankruptcies for the Benefit of Secured Creditors 
Charles W. Mooney 
University of Pennsylvania Law School 
8 61 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
9 58 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
10 51 Selling Stories or You Can't Own This: Cultural Property as a Form of Collateral in a Secured Transaction Under the Model Tribal Secured Transactions Act 
Grant Christensen 
Charlotte Law

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 107 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 61 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
3 58 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
4 55 From Contract to Status: Collaboration and the Evolution of Novel Family Relationships 
Elizabeth S. Scott and Robert E. Scott 
Columbia University - Law School and Columbia University - Law School 
5 51 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
6 49 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
7 48 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
8 46 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
9 43 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law 
10 32 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 

 

November 4, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 3, 2014

Recent Contracts News

As reported on JDSupra here, the Florida District Court of Appeal for the Fourth District, sitting en banc, held that while an insurer’s liability for coverage and the extent of damages must be determined before a bad faith claim becomes ripe, the insured need not also show that the insurer is liable for breach of contract before proceeding on the bad faith claim.

We have also learned from JD Supra of Piedmont Office Realty Trust v. XL Specialty Ins. Co., 2014 U.S. App. LEXIS 20141 (11th Cir. Oct. 21, 2014), in which the United States Court of Appeals for the Eleventh Circuit, elected to certify to the Supreme Court of Georgia the question of whether an insured’s payment obligations under a judicially approved settlement agreement qualify as amounts that the insured is “legally obligated to pay,” and if so, whether the insured’s failure to have obtained the insurer’s consent to settle resulted in a forfeiture of coverage.

FootballAccording this this report on Yahoo! Sports, Oklahoma State is suing the former Offensive Coordinator of its football team, Joe Wickline (who now is a coach for the University of Texas), and Wickline has countersued.  According to the report, Wickline's contract with Oklahoma State require that he pay the balance of his contract ($593,478) if he left for another position and was not his new team's play-caller. Wickline claims that he is calling plays at Texas.  What a bizarre thing to put in a contract.  It's a reserve non-compete!  In effect, Oklahoma State is saying that it would pay Wickline to call plays for a rival.

According to this report from the Courthouse New Service,  Ted Marchibroda Jr., the son of NFL Football coach Ted Marchibroda, filed a $1 million malpractice lawsuit against Sullivan, Workman & Dee and trial lawyer Charles Cummings , alleging breach of contract, professional negligence and breach of fiduciary duty.  In a 2011 lawsuit, Marchibroda accused sports agent Marvin Demoff of breaching an agreement to share the proceeds of NFL contracts for linebacker Chad Greenway. He claims that he is also owed money for recruiting center Alex Mack. 

McIlroy
Uploaded by Mark Schierbecker 

And continuing our sports report, Golf.com notes that golfer Rory McIlroy is taking a break from the "sport" to pursue his legal claims against his former management company, Horizon Sports Management.  McIlroy claims that Horizon took advantage of his youth to extract an unconscionable 20% fee for McIlroy's off-the-course income.  Horizon is claiming $3 million in breach-of-contract damages.

In a simpler companion case to the Sharpe v. AmeriPlan Corp. case about which we blogged earlier today, the Eighth Circuit affirmed the District Court's denial of a motion to compel arbitration in Quam Construction Co., Inc. v. City of Redfield.  As reported here on Law.com, the case was relatively easy, since the contract at issue contained permissive language: "the parties may submit the controversy or claim to arbtiration."  Given such language, the Eighth Circuit agreed with the Distrcit Court that arbitration could not be compelled.

November 3, 2014 in In the News, Recent Cases, Sports | Permalink | TrackBack (0)

Fifth Circuit Finds Arbitration Clause Trumped By Dispute Resolution Mechanisms in Parties' Prior Agreements

PyramidThe Fifth Circuit's opinion in Sharpe v. AmeriPlan Corp. begins with a wise observation on the state of the law of arbitration.  "As the use of arbitration clauses grows, so too do the legal arguments surrounding their validity and enforceability."  The plaintiffs in the case raised all of the traditional objections to arbitration clause, labeling it: not  supported by consideration, illusory, unconscionable, not broad enough to cover the dispute in the case, and waived.  The Fifth Circuit rejected all of these arguments and nonetheless found for plaintiffs on the ground that the arbitration agreement could not be harmonized with dispute resolutions found in earlier agreements among the parties still in effect.

The plaintiffs were "independent business owners" (IBOs) who earned their income from AmeriPlan by selling health plans and recruiting additional IBOs.  Upon recruiting the requisite number of IBOs, they earned the statue of Sales Directors, who can earn an income stream (down lines) from the commissions of the IBOs they had recruited.  All named plaintiffs were Sales Directors when AmeriPlan terminated them without cause in 2011.  In doing so, it also deprived plaintiffs of their down lines.  Plaintiffs sued, alleging that they had been promised lifetime vested residual income.

5th CircuitThe parties relationships were governed by three agreements.  Three of the four named plaintiffs entered into Sales Director agreements with AmeriPlan that provided for mediation followed by litigation in the case of a dispute.  After a jury returned a $5.5 million verdict against AmeriPlan in favor of a Sales Director, AmeriPlan added an arbitration clause to its Policy Manual.  Plainitffs accepted this revision either by clicking an "I agree" icon on AmeriPlan's website or because AmeriPlan sent them notice of the change in the form of a revised Policy Manual that contained the new arbitration clause on page 22.

Plaintiffs sued in California.  AmeriPlan had the case tranferred to federal court and then changed the venue to Texas.  It then moved to compel arbitration.  The District Court granted the motion while deleting two provisions that it found unconscionable.  Plaintiffs appealed to the Fifth Circuit.  The Fifth Circuit reversed as to three of the four plaintiffs.

The Court noted that an amendment to an agreement would ordinarily effectively supersede a prior, related agreement.  Here, however, the Plaintiffs' Sales Director agreements provided they could only be amended through a written agreement executed by all parties.  As that did not occur, here, the three plaintiffs whose agreements reserved a right to litigation retained that right.  The survival of the original agreements was especially clear in that AmeriPlan had relied on language in those agreements in order to transfer the case from California to Texas.  AmeriPlan conceded as much but claimed that the agreements could be harmonized.  But the Fifth Circuit found that the detailed two-tiered plan in three of the plaintiffs' Sales Director agreements clearly required mediation followed by litigation in Texas.  That structure could not be reconciled with the revised Policy Manual's arbitration clause.  The Court was especially secure in its reading of three of the plaintiffs' Sales Director agreements because the fourth plaintiff had entered into an earlier version fo the agreement which lacked such details.  The Court held that the addition of the detailed language manifested AmeriPlan's clear commitment to its two-tiered approach of mediation followed by litigation of disputes governed by the Sales Director agreements.

The Fifth Circuit reversed and remanded with respect to three of the plaintiffs.  The fourth will have to arbitrate her claims.  The Court acknoweldged that the result might seem arbitrary, but it was in fact simply a product of the Court's effort to give effect to the differing terms of the parties' agreements. 

 

November 3, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

More on the Puzzling ICAM Problem

 

Crossword_puzzle_with_lady_in_black_coat

As I noted about a month ago the problem for the 2015 International Commercial Artbitration Moot is wonderful for those who like crossword puzzles, solving problems, reading mysteries, or doing detective work. There are facts, deadends, and read herrings galore. No one goes for a big sleep as far as I can tell but there is the dreaded issue of "fundamental breach." In fact, that appears to be the centerpiece of the problem. Just to make it a little twisty, the fundamental breach is by the buyer whose letter of credit may not conform to the contract. Since even that would be too simple, there is a second letter of credit that may or may not conform but which came after the first arguably non comforming one. There are phone calls, emails, letters, accusations, and even an emergency arbitration that, maybe, should not have occurred at all.

At my school 32 students are now writing briefs for the claimants side of the case and preparing for their oral arguments next week. There is something here even for profs not involved in the Moot. Just reading the problem will spark all kinds of ideas for exam questions suitable for  the basic contracts course.

 

October 31, 2014 in Conferences, Contract Profs, Games, Law Schools, Meetings, Teaching | Permalink | Comments (0) | TrackBack (0)

Posting a Positive Review on Yelp? Not Unless You Haven’t Posted Numerous Other Times Before

A few weeks ago, we blogged here about how some businesses may pay customers to remove negative reviews from sites such as TripAdvisor.

The blog raised the question of just how reliable online reviews are given this practice and, potentially, the business itself (or friends/family) posting numerous positive reviews, thus making for an entirely fake overall review.

Here’s a twist on that: Yelp will actually remove posts without notifying either the reviewed business or the review poster if the latter has not posted enough other reviews on Yelp.  Of course, Yelp decides just how many other reviews are “enough.”

This happened recently to my husband, who is an extremely busy IT professional, but who nevertheless got such a good experience from a small local business that he took the time to post a for him rare review of the business with pictures of the product we had bought.  A few days later, the business owner contacted him to ask why he had taken the review down again.  He had not, but Yelp had for the above reason.

Of course, Yelp probably wants to avoid the occasional rage posting or an overly rosy review.  However, the above practice seems unethical and unreasonable.  Review sites will by nature have both good and bad reviews.  Yelp has chosen to believe that if a person only posts one thing, it must by definition by unreliable as being too far on either end of the spectrum.  However, the truth of the matter is that a lot of busy professionals do not have the time for or interest in posting a large amount of reviews.  That, of course, does not make an occasional review unreliable, perhaps quite the opposite: if you don’t post a lot of views, the ones you do must reflect truly good or bad experiences. 

Not only does Yelp waste reviewer’s time like this, but it does not even explain this policy on its guidelines section of its website.

A healthy dose of skepticism towards review websites seems warranted, which probably does not surprise too many of us.

October 31, 2014 in Contract Profs, Current Affairs, E-commerce, Web/Tech | Permalink | TrackBack (0)

Wednesday, October 29, 2014

New in Print

Pile of BooksKenneth A. Adams, Beyond Words, Solicitors Journal, Sept. 30, 2014

Andrea J. Boyack, Common Interest Community Covenants and the Freedom of Contract Myth. 22 J.L. & Pol'y 767 (2014)

Jan De Bruyne, Liability of Classification Societies: Cases, Challenges and Future Perspectives, 45 J. Mar. L. & Com. 181 (2014)

Nancy S. Kim, Boilerplate and Consent, 17 Green Bag 293 (2014)

Jocelyn E. H. Limmer, China's New "Common Law": Using China's Guiding Cases to Understand How to Do Business in the People's Republic of China, 21 Willamette J. Int'l L. & Disp. Resol. 96 (2013) 

Mark R. Matthews, A Doomed Proposal for Uniform Commercial Code Section 2-207: That Official Comment Would Have Led to Confusion, Not Clarity, 44 Cumb. L. Rev. 223 (2013-2014) 

Erin O'Hara O'Connor & Christopher R. Drahozal, The Essential Role of Courts for Supporting Innovation, 92 Tex. L. Rev. 2177 (2014)

Peter B. Rutledge & Christopher R. Drahozal, "Sticky" Arbitration Clauses? The Use of Arbitration Clauses after Concepcion and Amex, 67 Vand. L. Rev. 955 (2014)

October 29, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, October 28, 2014

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 211 Rolling Back the Repo Safe Harbors 
Edward R. MorrisonMark J. Roe and Christopher S. Sontchi 
Columbia Law School, Harvard Law School and United States Bankruptcy Courts, District of Delaware 
2 96 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law
3 87 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
4 84 Contract Law and Regulation 
Giuseppe Bellantuono 
University of Trento - Faculty of Law 
5 82 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
6 76 Performance-Based Consumer Law 
Lauren E. Willis 
Loyola Law School Los Angeles 
7 66 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
8 66 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
9 62 Insurance Agents in the 21st Century: The Problem of Biased Advice 
Daniel Schwarcz and Peter Siegelman 
University of Minnesota Law School and University of Connecticut - School of Law 
10 62 Price Squeezes with Positive Margins in EU Competition Law: Economic and Legal Anatomy of a Zombie 
Nicolas Petit 
University of Liege - School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS

RankDownloadsPaper Title
1 96 Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices 
Lori D. Johnson 
University of Nevada, Las Vegas, William S. Boyd School of Law 
2 60 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
3 52 From Contract to Status: Collaboration and the Evolution of Novel Family Relationships 
Elizabeth S. Scott and Robert E. Scott 
Columbia University - Law School and Columbia University - Law School
4 45 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
5 45 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
6 45 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
7 43 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
8 41 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law
9 40 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law 
10 29 The Network Contract in Italy: A Third Route between 'Contract' and 'Organisation'? 
Maurizio Sciuto 
Università degli Studi di Macerata

 

October 28, 2014 in Recent Scholarship | Permalink | TrackBack (0)