November 10, 2006
Chicken redux: when is a burrito (not) a sandwich?
The November 10 Boston Globe reports a ruling from Worcester Superior Court Judge Jeffrey A. Locke, "ending, for now, a food fight between Panera Bread Co. and Qdoba Mexican Grill." Panera filed suit against the owners of the White City Shopping Center in Shrewsbury, Mass., claiming that a lease with Qdoba violated a 2001 agreement with Panera that restricted the mall from renting space to another sandwich shop. Panera argued for a broad definition of sandwich, saying a flour tortilla qualifies as bread, and a food product with bread and a filling is a sandwich. (And, they might have added, "chicken is everything except a goose, a duck, and a turkey.") The judge disagreed. "A sandwich is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans." A burrito is just a burrito, Qdoba's experts testified. For the full story, go here.
[Carol Chomsky, with thanks to 2L Nick Rogers at U of MN Law School for sending the story]
Borat II: The Law Suit
It was only a matter of time, but we have now learned via the Contracts Professors Listserve that the first lawsuit has been filed by two people who appear in Sacha Baron Cohen's film, "Borat." The complaint, in a suit styled Doe v. One America Productions, alleges that "Sasha [sic] Baron Cohen is a prankster" whose HBO show achieved "moderate success" and who, along with his staff "lie[s] really well." The complaint gives Mr. Cohen's film mixed reviews, alleging that one's ability to enjoy the film depends on one's tolerance "for incest and penis jokes." Although the complaint identifies 50 defendants by the fictitious names Roes 1-50, neither Mr. Cohen (who is real) nor Mr. Borat (who is fictitious) is named as a defendant.
According to the complaint, plaintiffs are two fraternity members, one of whom is under 21, who were plied with drink and then agreed to sign a release (likely the one that was the subject of an earlier post on this blog) and appear in a documentary film. Plaintiffs allege that defendants assured them that the resulting film would not be released in the United States and that their fraternity would not be identified by name. As a result of these misrepresentations, and because they were encouraged to become inebriated, plaintiffs "engaged in behavior they otherwise would not have engaged in." They assert causes of action for fraud, rescission of contract, false light, appropriation of false likeness and negligent infliction of emotional distress.
Some have suggested that the complaint might be yet another prank by the irrepressible Mr. Cohen. But if that were so, why wasn't the case styled I.P. Freely & I. Tappa Keg v. Borat?
November 8, 2006
Contracts Prof Weekly Spotlight: Miriam Albert
Miriam R. Albert (Hofstra Law)
B.A., Tufts University
J.D., Emory University
M.B.A., Emory University
L.L.M, New York University
Miriam Albert is a Visiting Associate Professor of Law at Hofstra, where she teaches contracts, business organizations, business planning and business drafting.
Professor Albert joined Hofstra in the fall of 2004, with practice experience as a corporate and securities attorney and teaching experience at law and business schools. She was previously on the faculties of Fordham Business School and Widener Law School, teaching business law topics including corporate, agency and partnership law, mergers and acquisitions, securities law, and interviewing and counseling, as well as legal writing.
Her research interests focus on business organization and international and domestic securities law issues. Her articles have appeared in publications such as the Arizona Law Review, Rutgers Law Journal and the American Business Law Journal, a peer-reviewed journal for which she is a reviewer. Before entering academia, she practiced corporate and securities law at Stroock & Stroock & Lavan in New York.
She is a former stand up comic and pilates instructor, and the mom of a sweet 3 year old daughter she adopted from Russia when she was 10 months old. Her interests are focused on both lofty scholarly pursuits and the Wiggles, a group of 4 annoying Australians who sing and dance and basically fascinate her daughter.
The "Borat" Contract
Well, I'm quite put out that several other blawgs have scooped ContractsProf Blog on this burning contract issue, but those of you interested in learning how Sacha Baron Cohen duped people into giving him interviews for his new movie, "Borat," can find the release on Slate.com. Those who would like to see what the interlopers have to contribute on this issue can find comments here and here.
My anger at being scooped is termpered by the realization that I can now justify cancelling class to take my students to see "Borat."
November 7, 2006
It's Like Pulling Teeth...
The Denver Post reports that University of Colorado officials have "terminated a contract" with Gasper Lazzara, a donor who reneged on a $95.7 million pledge to its dental school. A consequence? The orthodontics students may see a significant increase in their tuition bills. Lazzara was covering students' tuition and paying them $35,000 annual stipends. In exchange, the students promised to work for Lazzara for seven years after graduation in a national chain of orthodontic clinics.
Ten students in CU's orthodontics residency program sued Lazzara for breach of contract in October, claiming he promised them jobs that paid $150,000 per year, plus profit-sharing and new clinics in the community of their choice.
The deal began to fall apart shortly after the students started the program in August 2004. Stipend payments were three months late, forcing the students to get emergency loans and charge up their credit cards, according to their lawsuit.
Lazzara's Orthodontic Education Company later "greatly reduced" their income projections and told students they might not get new clinics, the lawsuit says.
Lazzara has apparently reneged on pledges to other dental schools at Jacksonville University and the University of Nevada.
Why did Lazzara fail to follow through?
Lazzara did not return phone calls Monday, but he previously acknowledged that his business plan was "too cash-intensive."
Lazzara also blamed a negative "culture" at CU that clashed with his plan to change orthodontics from individual clinics to a brand-name chain similar to Pearle Vision eye clinics.
What about the center for oral-facial health at the University that bears Lazzara's name? The regents have not proposed to change the name:
University leaders were quick to point out that Lazzara's $3 million gift to build the dental school is the largest in school history and that he gave an additional $3.8 million to the program and its students.
* * *
"He's donated more than a lot of other people who have buildings named after them," Wilson said. "His name deserves to be on that building."
* * *
"Had we not assumed some of those risks in 2003, we would not have a new school of dentistry building nor would we have a graduate program in orthodontics," the chancellor said.
[Meredith R. Miller]
The Mouse that Roared
In an opinion delivered in Klamath Siskiyou Wildlands v. Bureau of Land Management on November 6th, the Ninth Circuit enjoined two timber sales from going forward, finding that the Bureau of Land Management (BLM) violated the Federal Land Policy and Management Act and the National Environmental Policy Act in its treatment of the red tree vole (the rodent at left). In 2001, the BLM created a six-category Survey and Manage species classification system within the Northwest Forest Plan. The red tree vole was assigned to Category C, which afforded the critter some habitat protections. One year later, the vole was downgraded to Category D, and in 2003 the vole was removed from the Survey and Manage designation system entirely.
Because of the changes in the categorization of the vole, the BLM did not conduct pre-disturbance sruveys for the vole in connection with the two challenged timber sales, and it issued Findings of No Significant Impact with respect to both sales. In connection with one of those sales, the BLM acknowledged that if vole nests existed within the units to be harvested, they would likely be destroyed.
The court concluded that because the two challneged timber sales did not "conform to the approved [resource management] plan[s]" (43 C.F.R. s. 1610.5-3), they are invalid and must be enjoined.
November 6, 2006
Limerick of the Week
The language in Mills v. Wyman is enough to inspire some great poetry . . .
and other poetry as well:
Seth Wyman's interior forum
Is not the law's sanctum sanctorum
With this none would quarrel:
Seth's conduct's immoral.
Still, he breaches not law but decorum.
November 5, 2006
Seller's Remorse / Advice for Agents of Fickle Sellers
This article from Florida's Bradenton Herald describes the situation where a homeowner changes her mind about selling her home. The article calls the common phenomenon "seller's remorse disease." Setting aside the arguably inapt medical analogy (there doesn't seem to be anything unsual about people changing their minds), the article provides some insight into the two scenarios when seller's remorse is likely to hit:
Longtime homeowners are likely to incur this disease shortly after listing their house or condo on the market for sale. To illustrate, just a few days ago, I met an elderly lady who was going through her scrapbook as she was cleaning out her house in preparation to move to an assisted living residence. As she threw away the yellowed newspaper clippings, she told me only about 10 percent of the clippings were worth saving.
Unlike that woman who seemed highly motivated to move on, many home sellers often incur second thoughts as they prepare for the sale, such as by cleaning out closets and throwing away years of memories.
The best thing the seller can do at this point, if the seller isn't highly motivated, is to cancel the listing. Smart realty agents willingly cancel a listing if the seller asks because it is a waste of time to work with an uncooperative seller.
The second and most common situation where home seller's remorse strikes occurs shortly after the home seller accepts a buyer's purchase offer. This is the moment when the home seller understands it's time to move out and he or she realizes the "old home" is pretty nice after all.
The 30- to 60-day "escrow period" after the seller accepts the buyer's purchase offer is the critical time when the home seller is most likely to consider not selling. The reason is sellers start thinking about all the wonderful memories enjoyed in their home or how they will never be able to find another residence as nice.
What is the listing agent to do when the seller says "I've changed my mind" after signing a contract of sale? (The "worst words a listing agent can hear.") Remind the seller of the reasons she said she wanted to sell in the first place. If that doesn't work:
politely inform the home seller of the possible legal consequences of their breach of the sales contract. In a nutshell, if the buyer really wants the home, the buyer can bring a "specific performance lawsuit" to force the seller to complete the sale on the terms agreed in the signed sales contract.
To make matters worse for the seller, a savvy buyer's lawyer will usually record a "lis pendens" against the title to prevent the seller from selling to another buyer or even refinancing the property. The legal reason is every property is unique so monetary damages are not an adequate remedy for the buyer if the seller breaches the sales contract.
[Meredith R. Miller]