October 31, 2008
Brown on Halloween, Promises & Signed Documents
Halloween time always reminds me of the Peanuts Special, It's The Great Pumpkin Charlie Brown. Of course, my thoughts turn to two wise philosophers, admirable contract scholars and lovable losers: Charlie Brown and Linus.
For example, in light of the approaching election day, don't forget Linus' pertinent reminder:
"I've learned there are three things you don't discuss with people: religion, politics and the Great Pumpkin."
Further, the following familiar exchange between Charlie Brown and Lucy (also captured in the clip below) provokes normative questions about the tension between formal legal requirements and fundamental fairness :
Lucy Van Pelt: Say Charlie Brown, I’ve got a football. How about practicing a few placekicks. I’ll hold the ball and you come running and kick it.
Charlie Brown: Oh brother. I don’t mind your dishonesty half as much as I mind your opinion of me. You must think I’m stupid.
Lucy: Oh come on Charlie Brown.
Lucy: I’ll hold it steady.
Charlie: You just want me to come running up to kick that ball so you can pull it away and see me land flat on my back and kill myself.
Lucy: This time you can trust me. See, here’s a signed document testifying that I promise not to pull it away.
Charlie: It is signed! It’s a signed document! I guess if you have a signed document in your possession you can’t go wrong. This year I’m really going to kick that football.
[Charlie runs and goes to kick the ball and, of course, Lucy pulls it away, causing Charlie to fall.]
Lucy: Peculiar thing about this document, it was never notarized.
Poor Charlie. He is persistent at trick-or-treating, and all he can say is "I got a rock!" I suppose that's better than a mere peppercorn. Happy Halloween!
[Meredith R. Miller]
October 29, 2008
An Update on the Google Book Scanning Project
Back in 2005 (time does fly when you're blogging), we mentioned Google's plans to scan basically all the books in the world and make them available on the Internet. Publishers and authors were outraged by the project. The Chronicle of Higher Education reports that Google, publishers and authors have reached a settlement agreement in the book-scanning class action lawsuit (it is annoying, indeed, but subscription is required):
Under the terms of the deal, Google will pay $125-million to establish a Book Rights Registry, to compensate authors and publishers whose copyrighted books have already been scanned, and to cover legal costs.
The settlement, which still needs court approval to go into effect, would resolve a class-action lawsuit brought in 2005 by the Authors Guild as well as a separate lawsuit filed on behalf of the publishers’ association. Publishers and authors argued that Google’s scanning of books for its Google Book Search program was a flagrant violation of copyright law's provisions governing fair use.
“We had a major disagreement with Google about copyright law,” Paul Aiken, the guild’s executive director, said during a joint teleconference that Google and the publishers held with reporters. “We still do, and probably always will.” But he said that the parties had been “able to set those issues aside” for what “may be the biggest book deal in U.S. publishing history.”
The deal goes far beyond money. Richard Sarnoff, chairman of the publishers’ association, described it to reporters as “breathtaking in scope, groundbreaking for publishers and authors, and trailblazing for intellectual property in general.”
The settlement unlocks the full texts of books that searchers can only now read online in snippets. For those interested in arcane or hard-to-get texts, it may be a real boon, as the Chronicle reports that "[i]nstitutions would be able to buy subscriptions so that their students and faculty members could have full access to complete texts. All public libraries in the United States would be given free portals for their patrons."
[Meredith R. Miller]
New Recruiting Tool: Sue Students Who Don't Attend Classes
Cincinnatti.com reports that the University of Cincinnati is seeking to recover $6300 from Angela Caliguri. Ms. Caliguri claims that she went onto UC's website to look at its course offerings in 2004. She then compared those course offerings to those from Cincinnati State Technical and Community College. Finding UC's tuition too high, Ms. Caliguri enrolled at Cincinnati State. But UC claims that Ms. Caliguri signed up for UC courses before logging out. Although it concedes that Ms. Caliguri did not attend any classes at UC, UC claims that it held a spot open for her in the courses for which she had enrolled.
UC duly billed Ms. Caliguri for the courses in which she had allegedly enrolled. Tuition, fees and health insurance charges amounted to over $3150. Adding interest and collection fees, the University now seeks damages in excess of twice the original bill. Ms. Caliguri's court papers claim that she contacted UC repeatedly in order to explain that she never attended and never intended to enroll, but UC is pursuing its claim nonetheless. It claims that about 2 percent of UC students do not pay their tuition, costing the University $6 million annually. But Ms. Caliguri's case suggests that the University needs to reconsider how it counts its "students."
October 28, 2008
At Last, A Soft-Drink Company that Keeps Its Word
Okay, first a little background. There is a group of musicians that calls itself Guns N' Roses. The band is quite popular, but it has not released a studio recording since 1991. Recently, Guns N' Roses announced that it would be releasing a new album called Chinese Democracy, and this announcement created a considerable stir. For reasons that remain obscure. the makers of the soft drink, Dr. Pepper, promised a free soda to every American (in Indiana, Americans must show a picture I.D. in order to qualify for the offer), if the new recording was released before the end of 2008.
According to Billboard.com, this is how the company explained its marketing strategy:
"It took a little patience to perfect Dr Pepper's special mix of 23 ingredients, which our fans have come to know and love," Dr Pepper director of marketing Jaxie Alt says. "So we completely understand and empathize with Axl's quest for perfection -- for something more than the average album. We know once it's released, people will refer to it as 'Dr Pepper for the ears' because it will be such a refreshing blend of rich, bold sounds - an instant classic."
When the release date was announced, a Dr. Pepper spokesman was clearly abashed: "We never thought this day would come," he explained. I guess when it comes to a band like Guns N' Roses, double-daring really works.
MTV Newsroom now reports that "Chinese Democracy" will be released on November23rd, and Dr. Pepper will make good on its word. In order to collect your free soda, all you have to do is visit the Dr. Pepper website on the release date, November 23, 2008, and log on. You can read all about it on a special blog created in connection with the offer. Once the company has collected all relevant information about you, it will send you a coupon which you can present at any store and then collect your free soda.
Business Associations Limerick of the Week: In re eBay
This is a pretty simple case about usurpation of a corporate opportunity. Investment bankers approached eBay's principals with offers of shares in companies to be distributed in public offerings that the banks were underwriting. In return, the investment banks hoped to win eBay's business in future transactions in which eBay would need investment banking services. At the time of these transactions, getting one's hands on shares from such public offerings was very desirable, as the shares were inevitably undervalued and would appreciate quickly in value in the days after the public offering. Buying such shares and then quickly re-selling them is a practice known as "spinning." The shares were in effect a gift that resulted in millions of dollars in profits for the eBay executives. What did they do with those profits? Threw them on the pile, I suppose.
In any case, eBay shareholders sued, arguing that the profits really belonged to eBay and not to the executives. After all, the investment banks could have offered those shares to any random multi-millionaire or billionaire. They chose to offer the shares to eBay executives because the investment banks were interested in the company's business. The court agreed, finding that the investment opportunities were in eBay's line of business and that the company had an interest or expectancy in the opportunity.
In re eBay
"A billion? It's a beginning,
But I need more -- think I'll try spinning."
The court said "No way!
You have to repay
eBay, whose profits you're skimming."
October 27, 2008
Now in Print
- Daniel B. Bogart, Good Faith and Fair Dealing in Commercial Leasing: The Right Doctrine in the Wrong Transaction, 41 J. Marshall L. Rev. 275 (2008).
[Meredith R. Miller]
Marvin v. Marvin Updated: The Tim Burton Case
Since we have just posted a Limerick commemorating the most celebrated of palimony cases, Marvin v. Marvin, it is worthy of note that, as MSNBC reports, Los Angeles Superior Court Judge Teresa Sanchez-Gordon issued an order on September 16th of this year finding that director Tim Burton's ex, Lisa Marie, is not entitled to a share of his wealth based on their long-term relationship. Mr. Burton is pictured at left. Ms. Marie is so breathtakingly beautiful that posting pictures of her cannot be risked. Actually, she is featured in the video below. According to the wikipedia entry for Lisa Marie, the two were engaged from 1993-2001 and during that time, she was seen but not heard in several of Mr. Burton's films. At the time the pair separated, Mr. Burton agreed to provide her with, among other things, $5.5 million, a New York apartment and a car. That agreement was found valid and enforceable. But Lisa Marie claims that she was coerced into signing the agreement, that Mr. Burton had promised during their relationship to support her throughout her life, and that she is now so poor she cannot even afford a proper last name.
This video provides some sense of what the couple's life was like in happier times:
Contracts Limerick of the Week: Marvin v. Marvin
Marvin v. Marvin provides for wonderful opportunities to discuss social issues relating to promises made in the context of marriages and other forms of cohabitation. Lee Marvin and Michelle Triola Marvin lived together for six years. At the start of their relationship, Lee was married to Betty Ebeling. At the end of his relationship with Triola, Lee Marvin married Pamela Freeley. Triola alleged that she and Lee had entered into an agreement whereby they would hold themselves out as husband and wife and that they would "share equally any and all property accumulated as a result of their efforts." After the demise of their relationship, Triola sought to enforce the alleged agreement, seeking a settlement in excess of $1 million. The trial court denied Triola relief, finding such promises unenforceable on public policy grounds. The Supreme Court of California, over a strident dissent that referred to the relationship as "meretricious," found that promises of the sort alleged can be enforced by a court and that such promises can also be implied through conduct.
In this particular case, the trial court on remand found that there was no agreement between the parties of the kind alleged by Triola. Apparently, the court found it unlikely that Marvin could have promised half his income to Triola while still married to his first wife. Moreover, while Triola could have recovered in quantum meruit for the non-sexual services she provided to Lee, she had already been duly compensated during the course of the relationship. The trial court's award of $104,000 in "rehabilitation" damages to Triola was overturned on appeal. Not to worry. Michelle knows how to land on her feet. According to her Wikipedia entry, she has lived with Dick van Dyke (pictured) for many years.
Oooooh, Rob! How could you ever leave Laura?!?
The case is especially timely these days with the on-going controversy over recognizing gay marriages and civil unions. Interestingly, some of my women students had very little sympathy for women who live for many years out-of-wedlock with men, bear and help raise the couple's children and support the man of the house while he pursues an education and a profitable career. This new feminism (or post-feminism or whatever it is) puts the burden on women in relationships to demand legal recognition of their status. But when it came to gay relationships, many of these same women changed their tune. Where marriage is not an option, the law must protect the rights and interests of people who commit to long-term cohabitation partnerships, regardless of gender and regardless of the nature of the relationship.
I've tried a couple of variants here. You can vote for your favorite!!
Marvin v. Marvin
The Marvin court's ruling's propitious
For relationships non-meretricious.
Michelle can recover
From Lee, her ex-lover,
If his promises weren't capricious.
Michelle and Lee lived in sin,
A fact once viewed with chagrin.
Now she can recover
From her ex-lover
If he promised to keep her in gin.