April 6, 2005
Today in history—April 6
1199: Richard the Lion-Heart dies of an arrow wound at Châlus, France, where his bowels are still preserved in a chapel. He pardons the man who shot him, but after Richard's death the man is flayed alive. Slowly.
1652: The Dutch East India Company establishes a supply depot at a fine harbor near the Cape of Good Hope. The place will later grow and be known as Kaapstad, or "Cape Town."
1808: John Jacob Astor incorporates his American Fur Company.
1869: John Wesley Hyatt receives a patent for the first plastic, which he calls "Celluloid," a registered trademark of his Celluloid Manufacturing Co. of Newark, New Jersey.
1886: The city of Vancouver, British Columbia, is incorporated. The place had hitherto been known as Gastown, but it is renamed by the Canadian Pacific Railway, which thinks the new name will bring more traffic.
1890: Aviation pioneer Anton Herman Gerard Fokker is born, the son of a Dutch tea planter, at Kediri, in Indonesia. Although he will get no formal technical training and will be only 24 when World War I starts, his Fokker triplane will be widely regarded as the war's best aircraft.
1926: Walter Varney Airlines makes its first flight from Pasco, Washington, to Elkhorn, Nevada. It will later become better known as United Airlines.
1930: One of the great advances in snack foods occurs, as the Continental Baking Co. invents the Hostess Twinkie. Today, a half-billion are produced each year.
1998: Tammy Wynette, a hairdresser who took up singing to make extra money when her baby was stricken with spinal meningitis, dies at Nashville, Tennessee. She renewed her cosmetology license every year of her life, in case she ever had to go back to it.
April 5, 2005
New Mexico Enacts Revised Article 1
Governor Bill Richardson today signed HB 834, which, by its terms, will take effect on January 1, 2006. HB 834, like the eight versions of Revised Article 1 already enacted in Alabama, Arkansas, Delaware, Hawaii, Idaho, Minnesota, Texas, and Virginia, rejects uniform R1-301, retaining the basic choice-of-law regime of pre-revised 1-105. HB 834, like the versions of Revised Article 1 enacted in four other states (Arkansas, Delaware, Minnesota, and Texas), adopts uniform R1-201(b)(20)'s definition of "good faith" and "honesty in fact and the observance of reasonable commercial standards of fair dealing."
News in brief
Producer Leigh Ann Burton is suing the makers of the upcoming film Dying for Dolly, claiming they breached a contract to credit and pay her as a co-producer. It's been tough year for her; six months ago she sued boxer Oscar de la Hoya for allegedly stealing her idea for a TV series.
A battle is brewing in Wisconsin over the award of a contract to develop a state voter-registration list to Accenture Corp.
The University of Texas is thinking about getting back in the bidding for the contract to manage the Los Alamos National Laboratory.
The New York Merc is starting a new "Northwest Europe" gasoil futures contract, with trading in Dublin and delivery in Rotterdam.
The National Hockey League and its locked-out players are talking again, but apparently not about a new contract.
A real estate investor is suing Morgantown, Kentucky, after a changed city council vote caused it to back out of a deal to sell a city-owned building.
Hurd on the Street
For those who are interested in the contract issues that CEOs face in their employment deals, the Contracts Blog (no relation) has the details of Mark Hurd's contract as the new boss of Hewlett-Packard. The actual contract is here. One of the goodies, they note, is a "price-protection" term under which HP guarantees him against a decline in the value of his options in his old company, NCR. NCR stock dropped $6 a share the day that Hurd announced he was leaving.
More on California arbitration
The California Supreme Court Blog (run by an enterprising student at UC-Hastings and worth checking regularly for those of you who do law in the Golden State) has a mention here of the Cronus Investments case we mentioned yesterday, along with a link to the opinion.
Damages: Phone company liable for lawyers’ lost business
In the case, the firm of Kay & Anderson paid $505 for a an ad in the book, but the phone company failed to put in the ad for one lawyer and mis-alphabetized another. The lawyers sued, showing that business was down for the year and calculating that they had lost $152,000. The court agreed, finding that the lawyers’ own calculations were sufficient to show the loss.
An interesting sidebar to the decision was the fact that the phone company ordinarily precludes such claims by including boilerplate in its agreements limiting remedies to a refund of the ad price. Here, however, the phone company was unable to produce the original copy of the law firm’s contract. A copy of the front side of the two-page agreement form was admitted, but the court held that the phone company did not prove that this particular form actually had the boilerplate printed on the back.
Kay & Andersen, S.C. v. Ameritech Publ., Inc., 2005 Wisc. App. LEXIS 216 (Dist. 4, March 10, 2005)
Today in history—April 5
1588: English philosopher Thomas (Leviathan) Hobbes is born at Malmesbury, Wiltshire.
1614: Nineteen-year-old Pocahontas, daughter of Virginia's most powerful chief, marries Englishman John Rolfe, the man who will start the tobacco-growing business there.
1621: With a cargo of lumber, furs, and fish, the Mayflower sets out on its return voyage to England. Within three years she will be sold for scrap for £128.
1758: Seth Wyman, whose son Levi will later suffer an accident at sea and get care from Daniel Mills, is born in Shrewsbury, Massachusetts.
1791: George Washington exercises the first presidential veto in U.S. history, refusing to sign a bill providing a formula for apportioning Representatives on the ground that it was unfavorable to the South.
1816: Samuel Freeman Miller is born at Richmond, Kentucky. He will become one of the few U.S. Supreme Court justices to also have an M.D., and will write the opinion in The Slaughterhouse Cases.
1916: Actor (Eldred) Gregory Peck is born at La Jolla, California. His "Atticus Finch" in To Kill a Mockingbird will be named the top film hero of all time by the American Film Institute.
1930: Indian lawyer Mohandas Gandhi leads one of the great free trade marches in history, as thousands of Indians arrive at the seashore to collect their own salt in violation of British law.
1976: Pilot, playboy, film-maker, inventor, and industrialist Howard Hughes dies on a en route from Mexico to Texas.
1997: Beat poet (Irwin) Allen Ginsburg, whose career, among other things, proved that you can’t write good poetry on drugs, dies at New York City.
1998: The longest suspension bridge in the world, the $3.8 billion Akashi-Kaikyo Bridge connecting the Japanese islands of Honshu and Shikoku, opens to traffic.
April 4, 2005
Weekly Top 10
There's only one new entry in this weeks Top 10, a new piece by Jeff Lipshaw, debuting in the tenth spot. Following are the Top 10 most-downloaded Contracts-related papers from the Social Science Research Network for the 60 days ending April 3, 2005. (Last week's ranking in parentheses.)
1 (1) Emerging Policy and Practice Issues, Steven L. Schooner & Christopher R. Yukins (left)
2 (2) Rawls and Contract Law, Kevin A. Kordana & David H. Tabachnick,
3 (3) Unity and Pluralism in Contract Law, Nathan Oman,
4 (4) The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?, Emily Houh
5 (5) Allegheny College Revisited: Cardozo, Consideration, and Formalism in Context, Curtis Bridgeman
7 (8) On the Efficiency of Standard Form Contracts: The Case of Construction, Surajeet Chakravarty & W. Bentley MacLeod
8 (7) The Limits of Lawyering: Legal Opinions in Structured Finance, Steven L. Schwarcz
9 (9) Strict Liability and the Fault Standard in Corrective Justice Accounts of Contract, Curtis Bridgeman,
10 (–) Duty and Consequence: A Non-Conflating Theory of Promise and Contract, Jeffrey M. Lipshaw
News in brief
After five years of a slump, deal lawyers are back at work, with total corporate transaction volume hitting $830 million, by far the best year since the tech bubble burst in 2000.
Jury selection begins today in the fraud and breach of contract dispute between jailed philanthropist Herbert Axelrod and the buyers of his former company.
Hoping to stimulate local production, three private textile mills in India are planning to try contract farming of cotton; they expect to put 42,500 acres under contract this year.
Seventeen year old singer Joss Stone’s advertising contract with The Gap is in jeopardy after she moves in with her 25-year-old music-producer boyfriend.
An Australian company has won the contract to do the opening and closing ceremonies for next year’s Asian Games in Qatar.
A 1968 contract to sell the remainder of a house after a joint life tenancy expired is causing anguish in Racine, Wisconsin, where the sellers’ survivors now want out of the deal.
Being "absent minded" and "disorganized" may be grounds for getting out of a contract in Australia, at least if it’s with a "share scavenger."
Impetuous employee can't recover
An employee who quit her job in reliance on the promise of a job by another company's CEO is out of luck because the position and the salary had not been agreed upon, according to a recent decision by a South Korean court. The plaintiff had previously worked for the CEO, who asked her to come back to work for him. But no "official" offer from the company was ever made, so it was "impetuous" of her to quit her previous job. The new company was not liable for her losses.
From: Willie Wonka and the Chocolate Factory (1971)
[Willy Wonka has asked children and their parents to sign a contract before admitting them]
Mr. Salt: I'm not signing anything without my lawyer.
Veruca Salt: Give me that pen! [She grabs the pen from her father] You're always making things difficult.
Conditions: Strict compliance with notice provisions is required
In the case, the sub claimed that various actions of the prime and other subs had caused it to suffer additional costs, and sent a demand letter 11 months after the project was completed. The contract, however, provided that no claim could be made unless, "as a condition precedent thereto," written notice was given with 21 days after occurrence of the event that gave rise to the claim or after the sub learned of it.
The sub failed to comply "strictly" with the notice provision, said the court, and thus waived its claim. Summary judgment for the prime was appropriate.
Kingsley Arms, Inc. v. Sano Rubin Construction Co., 2005 N.Y. App. Div. LEXIS 2424 (3d Dep’t, March 10, 2005)
Today in history—April 4
397: St. Ambrose, the Roman lawyer who was elected Bishop of Milan even though he had not yet even been baptized, dies at Milan.
1581: The farmer’s son who rose to prominence on the first African slave-trading expeditions in British history is knighted as Sir Francis Drake.
1721: Sir Robert Walpole becomes the first prime minister of Great Britain, although there will not technically be such an office as "prime minister" until 1905.
1818: Afraid that the flag will soon look like a pinstripe suit, Congress fixes the number of stripes on Old Glory at 13.
1841: John Tyler becomes the first U.S. Vice President to become President when his predecessor dies in office. He is popularly known as "His Accidentcy."
1850: With 1,610 residents, the old Pueblo de Nuestra Señora la Reina de los Ángeles ("Town of Our Lady, the Queen of the Angels") is incorporated as the City of Los Angeles. The new name is easier on the new Anglo population.
1861: U.S. Supreme Court Justice John McLean dies at Cincinnati, Ohio. His opinion in Wheaton v. Peters held that there is no federal common-law copyright in the United States.
1924: Four brothers from Pennsylvania (Sam, Jack, Harry, and Abe) announce the formation of Warner Brothers.
1964: The Beatles set a record by simultaneously occupying the five top positions on the Billboard charts. They are, (1) Can't Buy Me Love, (2) Twist and Shout, (3) She Loves You, (4) I want to Hold Your Hand, and (5) Please Please Me.
1984: Winston Smith begins keeping a diary in George Orwell’s classic novel.
April 3, 2005
Arbitration: You say “California,” you get “California”
Parties who specify "California law" in a contract are have elected to subject it to California’s own rules governing arbitration, even if the agreement also it includes a general arbitration clause referring to the Federal Arbitration Act, according to the California Supreme Court.
California has a law that allows a state court to consolidate concedely arbitrable claims into a judicial action—and thus effectively take them away from arbitrators—where some parties to the dispute have not signed arbitration agreements and there is a possibility of inconsistent factual findings. There is no similar provision in the FAA. In this case, the parties specified "California law," but also included an arbitration provision that said it was to be governed by the FAA.
Disapproving two of its prior decisions and a Ninth Circuit opinion, Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205 . (9th Cir. 1998), the court held that merely mentioning the FAA did not preempt those parts of California’s law governing procedure. While parties are free to invoke the FAA’s own procedures, a mere reference to the FAA will not do so.
Cronus Investments, Inc. v. Concierge Services, 35 Cal. 4th 376, 2005 Cal. LEXIS 2644 (March 10, 2005).
Today in history—April 3
1783: Future lawyer and literary lion Washington Irving is born at New York City.
1823: William Marcy "Boss" Tweed is born at New York City. He will begin his career as a chair-maker and end it as a common seaman on a Spanish vessel, before dying in debtor’s prison.
1882: Accepting one of the most famous unilateral offers in U.S. history, Robert Ford shoots Jesse James in the back in St. Joseph, Missouri, to collect a $5,000 reward.
1895: Oscar Wilde makes one of the worst litigation decisions of all time, suing the Marquess of Queensberry for libel. The accompanying publicity will lead to an investigation which will send him to jail and largely end his celebrity career.
1948: President Truman signs the legislation creating the Marshall Plan, which will give $5 billion in aid to rebuild Western Europe.
1953: Odd that nobody thought of it before, but on this date TV Guide is published for the first time.
1985: The Senate confirms Frank Hoover Easterbrook as a judge of the U.S. Court of Appeals for the Seventh Circuit.
2000: Judge Thomas Jackson rules that Microsoft Corp. has violated the U.S. antitrust laws.