December 25, 2004
Window, Our Lady of Mount Carmel Church, Wyandotte, Wisconsin.
Today in history—December 25
800: Pope Leo III crowns King Charles of the Franks "Holy Roman Emperor," reviving a title that has not been seen in the West since 476. The revived empire will last just over a thousand years, finally becoming extinct in 1806.
1066: The continental legal system comes to England, as William the Bastard, duke of Normandy, is crowned King of England.
1642: Physicist Isaac Newton is born at Woolsthorpe, near Grantham in Lincolnshire. Everybody knows that he’s famous for his scientific investigations, but his day job was Master of the Royal Mint.
1821: Clara Barton, founder of the American Red Cross, is born. There is a "Red Cross" and a "Red Crescent" for Islamic nations, but the International group refuses to recognize the "Red Star of David," apparently because they’re worried the Buddhists and the Hindus and such like will also want their own.
1887: Hotel king Conrad Nicholson Hilton is born at San Antonio, New Mexico Territory. He will buy his first hotel, the Mobley Hotel in Cisco, Texas (left), at age 32—after his first plan, to buy a small bank, falls through. He rents beds to oilfield workers in the boom town 8-hour shifts.
1906: Louis Winogradsky, the son of a tailor’s apprentice, is born in Tokmak, Russia. As "Lew Grade" he will work his way up from winning prizes at Charleston dance competitions to become one of Britain’s great show-business impresarios.
1913: Journalist Henri Nannen, who will found the German news magazine Der Stern in 1948, is born at Emden in Lower Saxony.
1934: Campbell Soup creates a holiday tradition, when it has Lionel Barrymore read Charles Dickens’s A Christmas Carol on CBS’s Campbell Playhouse.
1946: Singer James William "Jimmy" Buffett, whose Margaritaville will do more for Tequila sales than all of Madison Avenue combined, is born in Pascagoula, Mississippi.
1978: Singer Kenny Rogers’s The Gambler is atop the country music charts. It adds "You got to know when to hold ’em, know when to fold ’em" to the popular lexicon.
December 24, 2004
Money disappears fast in Las Vegas
A man who won an $8 million jury verdict against a Las Vegas casino saw that money evaporate last week as a federal judge threw out the verdict and granted judgment to the casino.
California businessman Stephen Mattes lost several million dollars at the tables while playing at the Grand Opening of the Paris Las Vegas resort. He subsequently claimed that the casino had breached its promise to extend him a $2 million line of credit.
U.S. District Judge James Mahan originally ordered a new trial, finding that the jury’s verdict was contradictory and not supported by the evidence, but subsequently gave judgment for the casino.
Today in history—December 24
1818: School teacher and church organist Franz Xavier Gruber of Oberndorf, Austria, writes the music to a poem written by his friend, Father Josef Mohr in a few hours. The song, Stille Nachte ("Silent Night"), will be performed at St. Nicholas Church’s midnight mass.
1867: The R.H. Macy store in New York decides to keep its doors open until midnight on Christmas Eve to catch last-minute shoppers. It’s a big success.
1948: The first Christmas midnight mass is broadcast from St. Patrick’s Cathedral in New York City.
1953: Fatima Cigarettes sponsors a new television program: Dragnet, starring Jack Webb. The show has been on the radio since 1949.
1985: Cuban caudillo Fidel Castro gives up smoking.
Cases—Notice—Provision in claims-made policy is condition precedent even absent prejudice
A clause requiring an insured to notify its insurance carrier "as soon as possible" is a condition precedent to recovery under a claims-made policy, according to the U.S. Court of Appeals for the Fifth Circuit in an unpublished opinion relying on Texas law.
The case arose when a company called SingleEntry hired ThinkSpark to design and build a web site. Things went wrong, and SingleEntry sued for breach of contract, fraud, and violations of the the Texas Deceptive Trade Practices Act. Although ThinkSpark learned of the action no later than December 7, 2000, it waited until September 18, 2001, to notify the insurance carrier, St. Paul.
Judge Jerry E. Smith refused to import a prejudice requirement into the claims-made policy. Claims-made policies are different from occurrence policies, he noted. "Courts will not rewrite policies to permit notice-prejudice to be applied to claims-made policies, because to do so would interfere with the right to contract. A party rightly should be held to know the conditions of the policy and the conscious choice that it made in selecting a claims-made policy instead of an occurrence policy." (Citations omitted.) SingleEntry.com, Inc. v. St. Paul Fire & Marine Ins., 2004 U.S. App. LEXIS 25070 (5th Cir. Dec. 7, 2004).
Former Brando aide files suit against estate
The business manager for Marlon Brando has filed a breach of contract and sexual harassment claim against the late actor's estate. Jo Ann Corrales says she's owed commissions on certain revenues. She also said the Godfather star "caused a hostile work environment due to his continuous acts of sexual harassment."
December 23, 2004
Season's greetings, no offense
From Brian Leiter’s blog—with thanks to Michael Madison (Pitt) for pointing it out—the definitive politically correct and contractually bulletproof "best wishes for the holidays."
Yale loses employment suit
Even a helpful last-minute decision by the Connecticut Supreme Court, which held that Yale's employment handbook creates an administrative process that must be exhausted before litigation can begin, didn't keep the university from getting hammered by a jury in a lawsuit by three radiologists from the medical school.
The three won $5.5 million, plus punitive damages and attorneys' fees. Thomas B. Scheffey of The Connecticut Law Tribune tells the twistings and turnings of the suit, and why the deus ex machina didn't save the day.
Ex-husband sues J-Lo after she fires him
Ojani Noa (left, with Lopez), who was a waiter at a Miami restaurant when he married the star for about a year in 1997, says he gave up his job managing the Conga Room in Los Angeles to take over Lopez's restaurant in 2002. He says she orally promised that she would not fire him "without good cause or reason."
A look at recent changes in British damages rules
Damages for breach of contract in the U.K. are a little more—well, flexible, than they used to be. In a recent article in Legal Week, barrister Thomas Keith takes a look at two cases that in recent years have changed the face of British damages law.
The first is the 2001 decision in Attorney General v. Blake, where the House of Lords came up with a new restitutionary remedy to award the government royalties in a case involving breach of the Official Secrets Act. The second is the 2002 decision in Farley v. Skinner, in which the Lords awarded monetary damages for a homeowner’s discomfort, even though the breach of contract at issue had not resulted in any pecuniary loss.
Today in history—December 23
1116: St. Ivo of Chartres, the most important Western canon lawyer before Gratianus, dies
1776: The Continental Congress borrows $181,500 from France.
1823: The Troy (N.Y.) Record publishes an anonymous poem, Account of a Visit from St. Nicholas, written by a professor of classics at General Theological Seminary in New York. As The Night Before Christmas, it will become Professor Clement Clarke Moore’s best-selling work, easily surpassing his two-volume Compendious Lexicon of the Hebrew Language.
1867: Sarah Breedlove Walker (Left), daughter of two ex-slaves, is born at Delta, Louisiana. After working days as a washerwoman and going to school at night, she will in 1905 invent a hair-straightening process that will maker her, as "Madame C.J. Walker," a millionaire; she will do much to spark the Harlem Renaissance and will leave most of her fortune to charitable organizations.
1899: Germany and the Ottoman Empire agree to a treaty to build the Baghdad Railway, linking Anatolia and Iraq.
1913: President Wilson signs into law the bill creating the Federal Reserve bank system.
1928: The National Broadcasting Company sets up the first permanent coast-to-coast radio network. Stars include Amos & Andy, Ed Wynn, Eddie Cantor, Rudy Vallee, and Jack Benny.
1947: The modern electronics revolution begins with the invention of the transistor. John Bardeen, Walter Brattain, and William Shockley will later share the Nobel Prize for their invention.
1961: Fidel Castro offers to trade survivors of the Bay of Pigs fiasco for $62 million in food and medical supplies.
1963: Surf music hits America as the Beach Boys appear on the television program Shindig.
1975: An arbitrator rules that pitcher Andy Messersmith is a free agent. He will go on to become on of Ted Turner’s rare bad deals; after winning 39 games in his last two years with the Dodgers, Turner’s Atlanta Braves give him a huge contract and he promptly flops, winning only 16 games in his two years with the Braves.
Cases—Legal fees—Contract with corporation doesn’t obligate principals
A lawyer who made the mistake of having an attorney fee agreement with a closely held corporation instead of the principals found himself out of luck, in a recent unpublished decision by the California Court of Appeals.
Lawyer Craig Scott got the appropriate fee agreement in writing from his client, California Employer Services, Inc., but the agreement did not extend to any of CES’s principals. After Scott failed to collect some $48,000 in legal fees, he sued.
Too bad, said the court. The contract was with the corporation, not with any of the individuals. Scott would nevertheless would have have had a claim for quantum meruit against the individuals if his work had benefited them—but he missed the two-year statute of limitations. Scott argued that since he had a written contract, the four-year statute should apply, but the court held that since the written contract was not with the principals, the two year limit was appropriate. Scott v. Assured Personnel Servs., 2004 Cal. App. Unpub. LEXIS 11048 (Fourth Dist. Dec. 7, 2004).
December 22, 2004
Today in history—December 22
1135: Ignoring the oaths they swore to the dying Henry I, English nobles pass over his daughter Maud and choose Count Stephen of Blois as their new king. Civil war will follow.
1697: The founder of the U.S. state of Georgia, James Oglethorpe, is born in Godalming, Surrey. He will prohibit rum and slavery in the new colony, but the colonists will later send him packing.
1775: The new Continental Navy is organized; plans are to give it thirteen ships. Rhode Island’s Esek Hopkins is named commander-in-chief of the fleet, and the first American flag is raised on a warship when his first lieutenant, John Paul Jones, raises it on the flagship Alfred (left).
1807: Congress passes President Jefferson’s Embargo Act, forbidding foreign trade. It is extremely unpopular in New England, leading to a near rebellion. It will be replaced by the Non-Intercourse Act exactly two years later. This doesn’t work, either.
1862: Cornelius Alexander McGillicuddy—better known as Connie Mack—is born. A baseball player and manager, he will end up as owner of the Philadelphia Phillies.
1943: With supplies of rubber curtailed by the war, baseball allows sporting goods manufacturers to use artificial rubber in baseballs.
1943: Beatrix Potter, creator of the Peter Rabbit line of children’s books, dies in Sawrey, Lancashire.
1976: The television program Let’s Make a Deal with Monty Hall and Carol Merrill (left) wraps up production. Over 3,200 shows, Hall gave away some $35 million in prizes. If you ever wondered whether you should stay with door number 1 or switch to door number 3, here's the answer.
1989: Berlin’s Brandenburg Gate reopens for the first time in thirty years.
1998: The American Basketball League files for bankruptcy, citing lack of television exposure and sponsor support, all of which apparently went to the rival Women’s National Basketball Association.
2003: The poet laureate of the American truck driver, Dave Dudley, dies of a heart attack. He created a new genre of country music with songs like Six Days on the Road, There Ain’t No Easy Run, and Truck Drivin’ Son-of-a Gun.
Cases—Interpretation—Contra preferentem bites employer
An ambiguous employee noncompete clause must be construed against the drafter, according to the U.S. Court of Appeals for the Third Circuit, applying Delaware law. The rule isn't surprising, but the outcome is odd. The former employer found itself in the absurd position where the noncompete would apply if the employee were fired, but not where the employee left to take a job with a competitor. Since the employee here left voluntarily to join a competitor, the noncompete did not apply. Commerce Nat'l Ins. Servs. v. Buchler, 2004 U.S. App. LEXIS 24991 (6th Cir. Dec. 6, 2004).
Union 1, Technology 0
Losing one’s job to technology is a familiar complaint these days, but union musicians in New York are not about to let it happen to them. Local 802 of the American Federation of Musicians has successfully torpedoed a "virtual music" concert by the Opera Company of Brooklyn.
OCB planned a benefit concert using the "Sinfonia," an instrument manufactured by Realtime Music Solutions, that allows a single player to perform as an entire orchestra in real time. The opera company says it wants to use the Sinfonia to bring opera to places where costs make it impossible to perform. The music hall where the benefit concert was to be scheduled canceled the performance after musicians started picketing and police put up barricades around the building.
Odds are that this is just the first round in a long battle. The opera, of course, is never over until the fat lady sings.
Damages for breach of forum selection clause
Forum selection clauses are ubiquitous in contracts today, and they are routinely disregarded when parties find it to their advantage to disregard them. What damages are appropriate for breach of a contract forum selection clause? Are damages available at all?
In a new paper, Damages for Breach of Forum Selection Clauses, Principled Remedies, and Control of International Litigation, Daniel S. Tan takes a look at those questions.
Commercial parties often provide for their disputes to be litigated in certain courts by agreeing to forum selection clauses. This Article examines the issue of whether the courts may properly make an award of damages to vindicate the breach of such agreements—for if these clauses are contractual terms like any other, the remedy of damages ought to be available when a party breaches the clause by commencing proceedings in a non_contractual forum. An award of damages in this context, if properly developed, is potentially a very powerful tool to control international litigation. Unfortunately, the United States cases are equivocal as to whether damages should be allowed for breach of forum selection clauses. In fact, the courts purport to decide the issue without so much as considering the wider implications of recognizing the remedy, or the arguments supporting or denying such a cause of action. This Article attempts to explicate and discuss the various arguments in favor and against recognizing the damages remedy. It is only by understanding these arguments that we can properly rationalize the remedy. This Article will conclude that although the courts should recognize such a cause of action, principles of comity demand that rational limits be placed on any putative remedy, and suggests several limiting techniques to achieve this. The resolution of the policy clash between a fundamental domestic right and private international law considerations has larger implications, including, how the damages remedy relates to the evolving remedy of the anti_suit injunction. It also presents an invaluable opportunity to clarify wider private international law policies implicated by international litigation.
"Small" will not mean "large" for SBA any more
The Small Business Administration is taking steps to ensure that it counts "small business" contracts more accurately.
Until now, SBA regulations counted a contract as "small business" if it was awarded to a small business, and the contract kept that status for the life of the contract, even if the contractor were later acquired by a large business. This means that the government has been counting contracts actually held by large businesses as part of the total number of small business contracts it reports.
The new regulations will require the acquiring company to re-certify its status at the time of the acquisition. The change is the result of heavy lobbying by small business interests; the Wall Street Journal quotes one lobbying group as saying that the new rule will "help open up the market to small businesses."
December 21, 2004
Today in history—December 21
1913: The New York World publishes the first "word-cross" puzzle developed by Englishman Arthur Wynne. The new puzzle is an immediate success, and the genre will later come to be known as "crossword" puzzles.
1937: Walt Disney gambles everything as the first full-length animated feature film, Snow White, opens at the Cathay Circle theater in Hollywood. The film, which cost $1.5 million, was dubbed "Disney’s Folly" by many, but Disney will have the last laugh.
1933: Fox studios signs a 5-year-old named Shirley Temple to a contract. The next year Stand Up and Cheer will make her an national phenomenon. She will make 44 films by the age of 12.
1950: Jeffrey Katzenberg, the "K" in the Dreamworks SKG film studios (Shrek 2), is born in New York City. "If you write a good script with a great premise, you'll have a big hit. If you write a bad script with a great premise you'll still make money. But if you write a great script with a bad premise, success is not likely."
1950: Lefty Frizzell’s If You’ve Got the Money, Honey, I’ve Got the Time tops the country music charts.
1979: The U.S. Congress approves $1.5 billion in loans to ailing Chrysler Corporation, allowing the company to stay in business long enough to eventually be acquired by Daimler Benz.
1988: The financial firm of Drexel Burnham Lambert agrees to a fine of $650 million for alleged securities violations.
Cases—Preemption—Contract claim against airline delay barred by Warsaw Convention
A surgeon with a valid ticket who lost money because an airline refused to let him board its aircraft could not bring a breach of contract action against the airline, but might have a claim under the Convention for the Unification of Certain Rules Relating to International Transportation by Air (the "Warsaw Convention), according to a federal district court in Connecticut.
Dr. Nkemakonam Ikekpeazu was trying to fly from Nigeria to the United States, but Air France refused to let him board, citing a problem with his passport. He later sued. District Judge Robert N. Chatigny held that his contract and tort claims were barred by the Warsaw Convention, and therefore the airline could not be liable for the losses on ordinary state law grounds. But he noted that under the Convention a carrier "shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods." The surgeon’s suit could go forward on that ground. Ikekpeazu v. Air France, 2004 U.S. Dist. LEXIS 24580 (D. Conn. Dec. 6, 2004).
Video game makers in high-stakes shootout
The computer game Half-Life basically invented the modern genre where you walk around shooting up everything. But the developer of the spectacularly successful game is now locked in a shootout of its own with its distributor, and things are heating up ahead of a March trial date, according to a report in Gamespot News.
Valve Software, developer of the Half-Life and Half-Life 2 games, is suing the distributor, Vivendi Universal Games. Valve says that Sierra Entertainment, a unit of Vivendi, has been placing Valve’s games in "cyber cafés," contrary to its license. The battle got uglier after Vivendi retaliated by claiming that Valve violated its agreements and that Vivendi should be declared owner of the highly popular games. A jury will have to sort all this out.
As to the games, fans love them. "Who could ever forget the first time a headcrab leapt out at you from a dark corner?," asked one enthusiastic reviewer. "Or the moment when the commando tossed a satchel charge into the sewer pipe you were hiding in?"