August 20, 2005
Sister Antillico Redux?
More family trouble for the rapper Eminem (born as Marshall Mathers). Mathers’ Aunt Betti and Uncle Jack have sued him claiming that, at his insistence, they left their happy and modest lifestyle in Missouri to move to Macomb, Michigan and be closer to the entertainer. According to the complaint, Mathers made a "clear, definite and unequivocal" promise to, among other things, buy and furnish a home for them if they made the move. Paragraph 14 of the complaint alleges:
In complete reliance of Defendant Mathers [sic] promises, Betti removed her children from school in Missouri, Jack quit his job, Jack and Betti placed their Missouri home up for sale and later sold it in August 2002, said goodbye to their friends and family, and most importantly, Betti, Jack and their children moved to Michigan.
The complaint alleges that Mathers put up Betti and Jack in a house, but refused to transfer title of the house to them. Further, Mathers apparently sent his aunt and uncle an eviction notice. Aunt Betti and Uncle Jack seek title to the house based upon promissory estoppel and also allege unjust enrichment (for improvements they made to the house).
Betti and Jack’s story sounds a lot like that of poor Sister Antillico; though, back in the 1840’s, her 60-mile trek from Talladega County was probably more grueling. See Kirksey v. Kirksey, 8 Ala. 131 (1845).
[Meredith R. Miller]
Today in History: August 20
1833: Some 40 Virginia slaves, let by Nat Turner, rise in revolt. State troops crush the rebellion in two days, and Turner is later captured, hanged, and skinned.
1833: Future Indiana lawyer and U.S. President Benjamin Harrison is born at North Bend, Ohio.
1920: The first commercial radio station goes on the air in Detroit, Michigan, with the words, "This is 8Mk calling." Broadcasting at 980 kHz from the second floor of the Detroit News building, today it's known as WWJ.
1926: Japan's state-owned Nippon Hōsō Kyōkai (NHK) radio network, modeled on Britain's BBC, goes on the air.
1940: Leon Trotsky, who lost the battle to control the Soviet Union's Communist party with Josef Stalin, is killed with a sawed-off ice ax by a Soviet agent in his study in Mexico City.
1968: The "Prague Spring" ends when 200,000 Warsaw Pact troops and 5,000 tanks invade Czechoslovakia.
1993: The public is overjoyed to learn that peace in the Middle East has been achieved with the signing of the Oslo Peace Accords.
2004: Regis Philbin sets the record for most hours in front of a TV camera, at 15,188. Cream always rises to the top.
August 19, 2005
News in brief
Trial opens today in Charleston, West Virginia, in a case where a funeral home inadvertently returned the dissected brain of a loved one to his family along with his personal effects.
France’s TF1 Television has reportedly won the French distribution rights for Warner Bros. film and television, taking it from state-owned France Televisions.
Northwest Airlines and its mechanics are still apparently far apart in their negotiations and a strike seems likely, though the airline plans to replace striking workers and keep its planes flying.
Country music star Garth Brooks has signed an exclusive deal with Wal-Mart which will make his recordings available only at Wal-Mart, Sam’s Clubs, and Walmart.com.
The Supreme Court of Canada will decide whether a British Columbia law shedding collective bargaining agreements with public section unions violates the country’s Charter of Rights and Freedoms.
Thales, a French electronics company, has won the contract to modernize the airport at Vilnius, Lithuania.
Illinois State Police have canceled the contract of a national DNA testing firm and are demanding refunds, after finding that a quarter of the test results on rape kits submitted to the firm were erroneous.
Rod Stewart and commercial impracticability
Singer Rod Stewart and casino operator Harrah's Entertainment will go to court next week in a contract dispute over a canceled concert. Harrah's paid Stewart $2 million, and demanded it back after the singer canceled the event. Stewart refused, claiming that he had to cancel because he was recovering from thyroid cancer surgery. Since the cancellation was for an event beyond he control, he's arguing, he doesn't have to refund the money.
Orville Wright's curious contract
Today is Orville Wright’s birthday. The co-inventor of the airplane was born on this date in 1871 at 7 Hawthorn Street in Dayton, Ohio.
Wright’s heirs are responsible for an unusual contract with the Smithsonian Institution. Irritated by the number of people who claimed to have invented power flight before the Wright Brothers, they gave the original Wright Flyer to the institution, but only on condition:
Neither the Smithsonian Institution or its successors, nor any museum or other agency, bureau or facilities administered for the United States of America by the Smithsonian Institution or its successors shall publish or permit to be displayed a statement or label in connection with or in respect of any aircraft model or design of earlier date than the Wright Aeroplane of 1903, claiming in effect that such aircraft was capable of carrying a man under its own power in controlled flight.
If the museum ever does so, the heirs get the Flyer back. [Frank Snyder]
Malum Prohibitum in Gotham
Does a violation of the New York City Charter provisions restricting post-employment activities make a contract malum probitum? In a case of first impression, a New York appellate court held that public policy precluded a former New York City employee from recovering damages for breach of a contract that was made in violation of these provisions.
An architect who was employed by the New York City Board Education reviewed and approved a building site in the Bronx for lease and conversion to a school. The architect approved the site despite the opinion of one of his colleagues that it was not a viable space for conversion to a school -- mainly because of its close proximity to a major highway. Shortly after approving the site, the architect quit his $46,000 a year job with the City and founded his own construction management business, RAC. Within two months, RAC obtained a lucrative $300,000 contract with the building owner to manage the project of converting the Bronx site to a school.
Turns out, this was a flagrant violation of the New York City Charter, which prohibits former City employees from receiving compensation in connection with any matter in which they were personally and substantially involved as a City employee.
When the violations of the City charter came to light, the building owner terminated RAC’s services at the direction of the Board of Education and the Inspector General’s Office. What did the architect do? He turned around and sued the Board of Education and the building site owner to recover damages for breach of contract. Even though the trial court determined that the architect’s actions were in violation of the New York City Charter, it allowed him to recover over $125,000 in contract damages.
A New York appellate court reversed, concluding that, “under the circumstances of this case, it is against public policy to permit the plaintiffs to enforce the subject contract and to profit from their wrongdoing."
R.A.C. Group, Inc. v. Bd. of Educ., 2005 N.Y. App. Div. LEXIS 8073 (July 22, 2005).
[Meredith R. Miller]
Coudert on the rocks
Isham, Lincoln & Beale, Lord, Day & Lord -- and now another of the fabled names in law practice seems about to pass into history. The New York Law Journal reports that partners at Coudert Brothers, the pioneer international law firm, have voted to break the firm up and let the various pieces merge with other firms. Coudert was founded in 1853; its international practice dates to the opening of its Paris office in 1879.
Today in History: August 19
1186: Geoffrey Plantagenet is stamped to death by his horse during a tournament at Paris, leaving the way open for his younger brother John to succeed Richard I as king of England.
1782: Ten months after Cornwallis’s surrender at Yorktown, the British win the last battle of the American Revolution at Blue Licks in what is now Kentucky.
1839: The French government, which has acquired the patent for Louis Daguerre’s new invention of photography, announces that the new process will be made “free to the world.”
1848: The New York Herald announces that gold has been discovered in California, triggering the California Gold Rush.
1870: Financier Bernard Mannes Baruch is born at Camden, South Carolina, the son of a German-born surgeon on the staff of Gen. Robert E. Lee. He’ll make a fortune and head his own brokerage house by age 33.
1895: Gunfighter-turned-lawyer John Wesley Hardin, who spent 17 years in prison for murdering 40 men before being pardoned, is shot to death during a dice game at the Acme Saloon in El Paso, Texas.
1929: Chicago radio station WMAQ’s Amos & Andy debuts on the NBC Radio Network, sponsored by Pepsodent toothpaste. It will become the longest-running radio show, going off the air in 1960.
1942: Fred Dalton Thompson (Vanderbilt Law 1967) is born at Sheffield, Alabama. He’ll become the first sitting U.S. Senator to become a regular star in a popular television program, Law & Order.
1946: William Jefferson Clinton who will probably affect the public perception of lawyers more than anyone since Richard Nixon, is born at Hope, Arkansas.
August 18, 2005
News in brief
State Farm Insurance won a big one today, as the Illinois Supreme Court overturned a $1.06 billion class-action breach of contract claim, ruling 6-0 that class action certification was improper.
Basketball star LeBron James, testifying at his breach of contract trial at Akron, Ohio, says he never agreed to any deal to made a documentary about him; "I never told him no," he said, "I never told him yes, either."
Canadian and Kuwaiti firms have signed a deal with Syria for oil exploration in the Palmyra region.
SBC Communications has awarded manufacturing contracts to Motorola and Scientific-Atlanta for the TV-top boxes it will use for its new video service.
The National Hockey League has inked a new two-year, $135 million contract with Comcast's OLN (formerly the Outdoor Life Network) to televise games, after ESPN dropped out of the bidding.
Qwest has reached agreement with 25,000 employees in 13 states, who will get their first raises (2.5 percent a year) in two years.
The "Yellow Rose's" employment contract
The story of the “Yellow Rose of Texas” is one of the legends of the West. According to the canonical version, a beautiful and patriotic young slave woman, Emily Morgan, owned by a rebel Texas officer deliberately dallied with and delayed General Santa Anna in his tent during the early part of the Battle of San Jacinto, so that he could not organize a defense. This resulted in a rout of the government troops and effective independence for Texas. San Antonio’s Emily Morgan Hotel, named for her, yesterday announced an essay contest on The Myth and Mystery of Emily Morgan.
But as the hotel notes, much of the traditional story is untrue, and the University of Texas at Arlington’s archives has the woman’s employment contract to prove it. Her real name was Emily D. West, and she was not a slave but a free woman of color from New Haven, Connecticut. She was hired in New York by the New Washington Association, a group of New York investors, to be the housekeeper of the hotel they were building at Morgan’s Point, near Galveston in what was then the Mexican state of Coahuila and Texas, where slavery was illegal. West got a one-year contract at $100 a year, a respectable wage in those days, and she and James Morgan, the Association’s agent, signed the agreement in New York on October 25, 1835. (Left, her signature, courtesy University of Texas at Arlington.)
When Texas declared its independence, Morgan was made a colonel in the rebel army. It was April 16, 1836, when government troops reached Morgan’s Point and seized all of the Association’s property and employees. Santa Anna arrived the next day, and the army moved out to challenge Sam Houston’s rebel force. West, almost certainly a rape victim, was carried along with the army, and thus was at the battlefield when the Texans attacked and routed the government forces. It’s possible she was in Santa Anna’s tent, but it wasn’t willingly.
West survived the battle, although she lost her papers showing her free status on the battlefield. She nevertheless managed to get a passport out of Texas (where slavery had become legal) and apparently returned to the East.
Distribution contracts in Italy
The Italian Civil Code deals with many kinds of contracts, but distribution agreements aren't among them. Italian lawyers, says Livia Oglio of Milan's Studio Legal Sutti, have to use what amounts to common law analogies from other kinds of contracts to determine the applicable principles. In recent client advisory, Distribution Contracts: The Paradise For Forum And Applicable Law Shopping, she outlines the issues.
Tom Waits on Contract Law
From the song Step Right Up:
You got it buddy: the large print giveth
and the small print taketh away
Off of Small Change (1976 Asylum Records).
[Meredith R. Miller]
Today in History: August 18
1227: Genghis Khan dies while campaigning in Szechuan. His burial party slaughters everyone they run across so that no one will be able to tell where he’s buried.
1587: Virginia Dare becomes the first English child to be born in America.
1809: Pioneer British industrialist Matthew Boulton, whose firm of Boulton & Watt made the steam engine a commercial success, dies at Birmingham, Warwickshire.
1909: The city of Tokyo presents the United States with 2,000 cherry trees. President Taft decides to have them planted down by the Potomac River.
1920: Women get the vote in the United States when Tennessee becomes the 36th state to ratify the 19th amendment to the Constitution.
1940: Walter Percy Chrysler dies at Kings Point, New York. He built his Chrysler Corp. out of the pieces of the financially crippled Maxwell Motor Co., in which he acquired a controlling interest in 1921.
1958: G.P. Putnam’s Sons publishes the first U.S. edition of Vladimir Nabokov’s Lolita. The reaction proves there’s no such thing as bad publicity for a book.
1992: Wang Laboratories, the early computer titan that at one point had $3 billion in sales and 30,000 employees, files for bankruptcy. Its $60 million headquarters towers are sold for $525,000.
August 17, 2005
News in brief
A California court has ruled that a dissident Anglican congregation that split from the church over gay ordination owns its buildings and can keep them, rejecting a claim by church leaders that they were actually held in trust for the diocese.
A man who sold his company to Britain’s Rok Property Solutions is suing for breach, claiming that he’s entitled to more compensation because the unit reached certain performance measures.
An $8 million airport contract in Broward County, Florida, will probably be canceled, after reports surfaced of a $20,000 bribe to a Miami official.
In South Africa, meanwhile, a probe has turned up the fact that public officials are frequently using firms fronted by their spouses to get public contracts.
Trial is under way in New Zealand in the contract dispute between RPNZ and the Real Estate Institute, over a busted project to create a database.
When demand exceeds supply . . .
When the Henrico County School System in Richmond, Virginia wanted to dispose of some 1,000 4-year old Apple iBook laptop computers, it came up with a great idea ---- why not set up shop at the Richmond International Raceway, and sell them to the public for $50 a pop? The computers would be available at 6 a.m. the day of sale on a first come, first served basis. However, they likely didn't anticipate the crushing response. People arrived shortly after midnight to wait in line. As the day wore on, baby strollers got trampled, people got thrown to the pavement, folding chairs were used as weapons, and a car was driven into the crowd. One woman, having waited since 3:30 a.m., decided that her place in line was more important than, um, leaving to use the bathroom.
From the article: "It's rather strange that we would have such a tremendous response for the purchase of a laptop computer -- and laptop computers that probably have less than desirable attributes," said Paul Proto, county general services director. "But I think that people tend to get caught up in the excitement of the event -- it almost has an entertainment value." All of the computers were sold by noon the day of the sale.
Farrell sues to block sex tape
specifically agreed that the Videotape would be jointly owned by the two of them, would remain strictly private and confidential between them, and that neither [Farrell] nor Narain would ever give or show to or share with any third party the Videotape or its content in any way. [Farrell] and Narain further agreed that neither party would ever sell, [sic] or exploit the Videotape in any way.
The real questions here are: (1) Do you think they really talked this way to each other? And, if so, (2), did they do it before or after doing the taping?
A bankrupt firm in Italy is suing the banks who helped it issue the bonds it defaulted on. Parmalat Finanziaria SpA claims that Italy’s UniCredito Italiano SpA and America’s J.P. Morgan Chase & Co. knew it was in lousy financial condition when it agreed to help the firm issue bonds from 1997 to 2001. By doing so, says the lawsuit, filed in court in Parma, Italy, the two banks helped it continue in business and lose even more money. The suit claims about $5.5 billion in damages; the total face value of the bonds raised was $2 billion.
Architects sue Atlanta
The design team for Atlanta’s new international airport terminal filed suit yesterday, one day day after its contract was terminated by the city. The city claims that the team, made up of Leo A. Daly Co., Khafra Engineering Inc., Anthony C. Baker Architects and Planners PC, and Browder & LeGuizamon, delivered plans late and in inadequate form and rang up $140 million in cost overruns. The city says the team never informed it of the overruns, which the team blames on changes in specifications and increased steel prices. The complaint seeks $10 million in lost profits and $50 million in damage to the firms’ reputations.
"Toy Yoda" Redux
With apologies to Keith Rowley for the title, a variant of the fact pattern has struck again --- a company makes a promise of an automobile as part of a promotional activity, only to reveal some trickery when the prize is delivered. Times change, however, and this time it was a Hummer that was at issue. The victim of an April Fool's Day prank by Kern County (Calif.) radio station KBDS, Shannon Castillo believed she had won a real Hummer by correctly guessing the number of miles that two real Hummers drove around Bakersfield during a the weeklong contest. When she was presented with a radio-controlled toy Hummer (after getting babysitting and arriving at the station at 6:00 a.m. to claim her prize), Ms. Castillo was not amused. She is suing the radio station for $60,000 in real money - the approximate price of a new H2 Hummer vehicle. The complaint is here.
Today in History: August 17
1601: Lawyer Pierre de Fermat is born at Beaumont-de-Lomagne, France. As a hobby he’ll play a major role in the development of differential calculus and invent the most famous mathematical puzzle in history.
1807: Robert Fulton’s Clermont leaves New York City for Albany, inaugurating the world’s first regularly scheduled steamboat service. Cheaper competition will eventually drive him to bankruptcy.
1879: Schmuel Gelbfisz is born at Warsaw, Poland. As “Samuel Goldwyn,” the former garment salesman is credited with, “A verbal contract isn’t worth the paper it’s written on.”
1893: Actress Mae West is born at Brooklyn, New York. She’ll start in burlesque doing a sexy “shimmy dance” as “Baby Vamp” at age 12.
1896: Bridget Driscoll becomes the first person to be killed by an automobile when she’s run over by a car on the grounds of the Crystal Palace. Says the coroner: "This must never happen again."
1915: Pencil factory manager Leo Frank is lynched by a mob in Atlanta, Georgia, after he's convicted of rape. Frank’s dream team of eight lawyers claim the actual rapist was the black janitor, but the crowd doesn’t buy it.
1945: Indonesia declares itself independent of the Netherlands, kicking off a four year war of independence.
1962: An 18-year-old brickmaker, Peter Fechter, becomes the first person to be killed attempting to climb the Berlin Wall. After being shot he is left to lie without medical attention, and bleeds to death in about an hour.