November 5, 2010
Today in History -- November 6
1789 – Pope Pius VI confirms the appointment of John Carroll as Bishop of Baltimore, the first Catholic bishop in the United States. A proponent of education Carroll, will later found Georgetown University.
1835 – Future Italian criminologist Cesare Lombroso is born at Verona. His cutting-edge scientific theory that criminal behavior is inherited and can be discerned from physiology will become extremely popular.
1844 – Following its successful war of independence from Haiti, the Dominican Republic gets its first constitution, which is patterned on the U.S. model.
1861 – Mississippi Senator and former U.S. Secretary of War Jefferson Davis is elected president of the Confederate States of America. Voters will later wish they had made him a general instead.
1869 – In the first intercollegiate football match, Rutgers College defeats the College of New Jersey (now Princeton) 6-4 at New Brunswick.
1935 – Parker Brothers acquires the rights to a board game called "The Landlord’s Game" from designer Elizabeth Magie Phillips. It will subsequently get revised and renamed "Monopoly."
1999 – By a 55-45 margin, Australian voters reject the idea of forming a republic and dispensing with the Queen.
Olbermann joins Juan Williams?
MSNBC talker Keith Olbermann has been put on indefinite unpaid leave after it was revealed he made $7,200 in campaign donations to Democratic candidates. This apparently violated MSNBC "ethics" rules.
Given the amount of money that Olbermann's boss, General Electric Corp.,-- and its executives -- give to candidates all the time, this sounds a bit unfair. Presumably the "ethics" standards are incorporated by reference in Olbermann's contract. What's odd, though, is that Olbermann's offense wasn't making political contributions, but rather making political contributions without the permission of the president of NBC News. Supporting partisan candidates apparently is okay if they're the candidates that GE approves of? Sounds like a strange "ethics" poicy.
News in Brief -- November 5, 2010
LUTON (U.K.): Britain’s National Health Service Primary Care Trusts are threatening to use a clause in their General Medical Services contracts to impose fines on medical practices that prescribe generic drugs at below-average rates.
BOSTON: "The Red Sox are exercising their $12.5 million option on David Ortiz (left) rather than giving the designated hitter the new multiyear contract he preferred."
NEW YORK: "The feud between Joel S. Finkelstein and his younger brother and former law partner, Andrew, heated up last week when Andrew claimed that Joel's 'abject laziness' and 'flagrant acts of disloyalty' were the reasons Joel was terminated—allegedly for cause—from the three law firms managed by Andrew."
COLUMBIA (Mo.): "More teachers added their names to a lawsuit filed in August against the Missouri Board of Education and three other entities for breach of contract."
BLACKPOOL (U.K.): "Charlie Adam will have to wait a week to find out if he can quit Blackpool [F.C.] for free immediately and pocket a £20,000 back_dated bonus. The midfielder, 24, put his breach of contract case to a Premier League arbitration panel [Wednesday]."
WASHINGTON (D.C.): "Prince Jefri Bolkiah and his brother, the Sultan of Brunei, have at long last reconciled, but their epic feud involving diamonds, fast cars, luxurious homes and billions of dollars generated a treasure trove of legal documents."
CHICAGO: "New City Bank has sued U.S. Rep. Bobby Rush [D-Ill.] and his wife in an attempt to recover more than $600,000 in mortgage loans. The Rushes aren't behind in their mortgage payments, but the bank wants its money, it said, because the couple has failed to pay 2009 property taxes on their homes."
EDWARDSVILLE (Ill.): " Two Madison County residents have filed a class action lawsuit against Dish Network, claiming customers are being charged for programming they are not receiving."
TOULOUSE (France): "Airbus SAS, for decades the also_ran behind Boeing Co. in China, is set to reap one of its largest orders yet from the country as a local factory attracts Chinese carriers and air travel in the region booms."
PITTSFIELD (Mass.): "A Berkshire Superior Court judge has ruled in favor of the owner of Bousquet Ski Area in a complicated legal [battle] that involved two other parties in a proposed sale of the 78_year_old Pittsfield ski slope in 2007."
November 4, 2010
Today in History -- November 5
1605 – Guy Fawkes is discovered lurking in the cellar below the House of Lords , where he was carrying out a plan to blow up Parliament. Understandable, though unwise.
1688 – William of Orange lands at Brixham with a force of 11,000 Dutch and foreign mercenaries, the last foreign invasion of Britain and the first completely successful one since 1066.
1862 – Former railroad president George B. McClellan, who before the Civil War had succeeded at everything he had ever tried to do, is removed as commander of the Union Army for the second and final time.
1895 – Lawyer and inventor George B. Selden is granted the first U.S. patent for an automobile. He will turn out to be a better inventor than a businessman, and he won’t be the one to get rich of the new automobile industry.
1911 – The future "King of the Cowboys," Roy Rogers is born Leonard Franklin Slye in Cincinnati, Ohio. Roy and Dale and Nelliebelle were a huge part of my childhood:
1928 – The man who fixed the 1919 World Series, Arnold "the Brain" Rothstein dies suddenly and unexpectedly while being shot.
1938 – Future Singapore Chief Justice Chan Sek Keong is born at Ipoh, Perak, in what was then the Federated Malay States.
Happy birthday to us!
One of the Best Parts of Ricky Martin’s Book is a…. Contract
Some readers might be interested to learn that, among friends, he goes by the name “Kiki” (that’s my dog’s name). Others might find intrigue in his story about coming out as a gay man (shocking news from an exceedingly handsome and well-groomed man singing about shaking his "bon bon"!). But, by far, the most fascinating highlight from the book involves Martin’s “hair drama.”
Martin had long hair and an acting stint on General Hospital. His contract with the tv network “said that I couldn’t change my image in any major way without first obtaining permission from the show’s producers.” Martin wanted to cut his hair, so he called the show’s executive producer from the hair salon and she apparently refused to give him permission. According to his account she yelled “Oh, my God! Continuity! If you cut your hair now, you’ll appear with short hair in one scene and long hair in another… For the love of God, Ricky, don’t do it!” And he didn’t. Now, that’s livin’ la vida loca!
[Meredith R. Miller]
SF kids should get burgers, nuggets & Cokes at school, not McDonald's
San Francisco's city elders love their kids. You can tell this because the city school budget this year has slashed funding for summer school, after-school programs, and drug education. Safety officers at schools are seeing their hours cut, resulting in the prospects of less safe environments. Teacher vacancies aren't being filled. The city has just raised bus fares for kids, and is reportedly even contemplating charging students for bus rides to school. But San Francisco Supervisors there have taken a huge step to better their childrens' lives:
They've banned toys in Happy Meals. Not just McDonald's Happy Meals, of course, but all fast-food kids meals. They're tired of kids being lured into buying unhealthy meals
The idea, apparently, is not to shield kids from cheap Shrek action figures and Hannah Montana pocket mirrors. No, it's to combat childhood obesity by discouraging kids from eating at fast-food restaurants. It's bad for children to be eating unhealthy food like hamburgers, chicken nuggets, hot dogs, and pizza,
Unless, of course, they're fed them in public schools, as they are in the San Francisco Unified School District, where these items are on school menus on a daily basis. It's interesting to note that the average meal sold at an SFUSD elementary school cafeteria is more fattening than the cheeseburger, fries, and Coke you get at McDonald's.
Under the ordinance, kids' meals can include toys only if the meal contains fewer than 600 calories. As it happens, the average kids' meal at a San Francisco public school has (according to the printed menu) more than 680.
Good to know that government officials in the City by the Bay are taking such good care of our kids. They are, after all, our future.
Not really much to do with contracts -- except maybe for a wrongful discharge claim -- but in St. Joseph, Missouri, the deputy court clerk who defeated her boss in Tuesday's election to become Buchanan County clerk has been fired. Apparently for starting to take her current boss's name off of the county letterheads.
The new county clerk says she's changed her original plan of keeping her former boss on the payroll in a subordinate position.
News in Brief -- November 4, 2010
LOS ANGELES: "It looks like Hollywood heartthrob Shia Labeouf's film Disturbia may not see the light of day as it has been hit by a second lawsuit."
LONDON: "The prospect of British Airways passengers facing strikes over Christmas appears to have receded after the airline won an important court ruling backing controversial changes to cabin crew contracts."
BEAUMONT (Tex.): "METCO Non-Destructive Testing Co. recently filed a motion to dismiss a suit brought by DuPont De Nemours, arguing that a forum selection clause between the two forces the case to be tried in Delaware."
CROYDON (U.K.): "A medical centre serving 12,500 patients could be forced to close after one of its partners and his wife ran up debts totalling £11.6 million. The future of Portland Medical Centre in Portland Road, South Norwood, has been thrown into jeopardy after Croydon [National Health Service] terminated its contract following revelations about Dr Ravi Sondhi's finances."
WASHINGTON (D.C.): "ITC Staff Backs Nokia In Apple Smartphone Patents Case."
ABERDEEN (U.K.): "Aberdeen City Council has performed a surprise U-turn to bring to an end a bitter and long-running pay dispute with thousands of staff. Councillors agreed unanimously to back down yesterday—and give 6,555 employees the wage rises they had been owed since April."
BOLINGBROOK (Ill.): "The village is suing the state’s largest water company for allegedly overcharging Bolingbrook residents for water for about five years and other breach of contract issues, village officials said."
NAIROBI: "A court has ordered Delta Petroleum to pay a supplier Sh7 million for breach of contract. Lady Justice Martha Koome found Delta Petroleum Trading Company in breach of a memorandum of understanding with businessmen Justus Ambasu and James Kamau for the supply of oil products."
ROCKVILLE (Md.): A private school that spent $9 million to renovate a blighted former public high school building leased from Montgomery County may not be allowed to exercise its purchase option on the property, due to claims the county may need the property in the future.
JOHANNESBURG: "Cricket South Africa is likely to take legal action against batsman Herschelle Gibbs after he made series of revelations in his book, earlier this week. The South African board sees the book as a breach of contract by Gibbs."
ARLINGTON (Tex.): "The Texas Rangers plan to talk Thursday with manager Ron Washington about an expected new contract".
Do authors owe fiduciary duties to their agents?
That's just one of the questions raised in a lawsuit brought by literary agent Peter Lampack against bedstselling author Martha Grimes. A New York Supreme Court reportedly has thrown out most of the allegations, which arose out of an option executed in 2005 on Grimes's book that eventually became Black Cat.
One of Lampack's allegations apparently was that since the agent negotiated the 2005 option, Grimes had a fiduciary duty not to change agents in such a way that the agent would lose his commission when the option was exercised several years later.
Some commentary on the decision from the Writer Beware blog is here.
November 3, 2010
Today in History -- November 4
1677 – Mary Stuart, niece of King Charles II, marries William, Prince of Orange. She and William will later invade England and drive her father, James II, from the throne. "How sharper than a serpent's tooth is an ungrateful chil," as an earlier English king noted.
1809 – Future U.S. Supreme Court Justice Benjamin Robbins Curtis is born in Watertown, Massachusetts. He’ll become the first law school graduate to serve on the Court.
1816 – Another future Justice, Stephen Johnson Field, is born at Haddam, Connecticut.
1861 – The Territorial University of Washington opens in Seattle. It will close and reopen three or four times before finally settling down to become the University of Washington.
1890 – The City & South London Railway opens between King William Street and Stockwell. It si the first deep-level underground railway in the world.
1922 – Workers led by British archaeologist Howard Carter find the door to what they will later discover is the tomb of Pharaoh Tutankhamun's.
1924 – Nellie Tayloe Ross of Wyoming (top right) becomes the first woman elected governor of a U.S. state.
1969 – Future music and fashion entrepreneur Sean John Combs is born in a housing project in Harlem.
2004 – The first "web log" aimed at contract law professors, ContractsProf, opens for business. Over the next six years it will have nearly a million page views.
Real-life hypo on contract conditions
Andy Thomasson of the boat Citation ()left) caught a record 883-pound blue marlin during the 53rd Annual Big Rock Blue Marlin Tournament at Morehead City, N.C. The fish was big enough to earn the $1.2 million top prize.
But it turns out one of the men on Thomasson's boat failed to get a $30 North Carolina nonresident fishing license before catching the fish -- which tournament organizers say is a violation of tournament rules. The tournament has disqualified Thomasson and the fish. The boat's crew has filed suit iagainst the Tournament in Dare Count Circuit Court, which has frozen the payment pending resolution.
Presumably the Tournament's argument is that having a license was a condition for participating in the event, and the law generally requires strict compliance with express conditions. But the crew would argue Restatement (Contracts) § 229: "To the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange." It seems unlikely that possession of the license was a "material part of the agreed exchange," and the forfeiture here would be "disproportionate." But the fact that the condition is compliance with state law might throw a spanner into the works.
News Briefs: November 3, 2010
SAN DIEGO: "Pitcher] Jon Garland declined his $6.75 mutual option with the Padres for 2011 and will test the free agent waters."
KAMPALA: "The [Uganda] ministry of Trade has finally suspended the pre-inspection of [imported] goods and used motor vehicle schemes that were instituted earlier this year."
SAN FRANCISCO: "SAP would pay Oracle $120 million for "past and future reasonable attorneys fees and costs" under the terms of a joint stipulation filed Monday in connection with the companies' ongoing intellectual-property lawsuit."
BRUSSELS: "Hoteliers in Portugal, Spain, Greece and other popular holiday destinations are furious over Thomas Cook taking 5% from payments for hotel bookings."
GODFREY (Ill.): "A Missouri corporation claims it owes a union nearly $300,000 in dues after it provided laborers for a construction project that it believed to be non-union."
TORONTO: "Court of Appeal comes to the fork in the road—and takes it."
KANIFING (Gambia): "Abdel Karim Arrar, an Algerian national, has sued the Africa Muslim Agency at the Kanifing Magistrates' Court claiming D500,000 for unlawful dismissal."
The good side of outsourcing
The term "outsourcing" in the popular mind means sending work overseas. But outsourcing (even to domestic firms) is a concept that small businesses can use to improve their bottom line, according to Bob Reiss in his book, Bootstrapping 101: Tips to Build Your Business With Limited Cash and Free Outside Help.
There’s a nice excerpt on the Entrepreneur Magazine blog.
November 2, 2010
Today in History -- November 3
1600 – Theologian Richard Hooker dies at Bishopbourne in Kent. The "via media" he articulated in his Lawes of Ecclesiastical Pietie, with its emphasis on both tradition and reason, will have enormous influence on English thought, and his clear prose style will be a model for future English writers.
1783 – Tyburn Gallows hosts its last public execution, highwayman John Austin. Austin’s last words: "Good people, I request your prayers for the salvation of my departing soul. Let my example teach you to shun the bad ways I have followed. Keep good company, and mind the word of God. Lord have mercy on me. Jesus look down with pity on me. Christ have mercy on my poor soul!"
1793 – Future lawyer, real estate speculator and Texas founder Stephen Fuller Austin is born in Wythe County, Virginia.
1801 – Karl Baedeker is born, the son of a printer, at Essen in Prussia. Later he will invent the modern travel industry.
1817 – Canada’s oldest bank, the Bank of Montreal, Canada's oldest chartered bank, opens in Quebec. For some idiotic reason, it will later call itself BMO, pronounced BEE-mo.
1845 – Future U.S. Chief Justice Edward Douglass White is born at his family's plantation in Lafourche Parish, Louisiana.
1883 – English-born American stagecoach robber Charles "Black Bart" Boles, who likes to leave little poems with his victims, robs his last coach, near Copperopolis, California.
1911 – Ousted General Motors president Billy Durant and Swiss auto racer Louis_Joseph launch the Chevrolet Motor Car Co. Chevy will become America’s most popular car. And then things will go wrong.
1913 – Following the ratification of the Sixteenth Amendment. The United States introduces an income tax. It probably seemed like a good idea at the time.
News Briefs -- November 2, 2010
SYRACUSE (N.Y.): "A private company will take over health care at Onondaga County’s three correctional facilities starting next month in a move that’s expected to save taxpayers $1.5 million over three years. The union representing registered nurses at the facilities said inmates’ medical care will suffer, and it plans to challenge it as a breach of contract."
HOLLYWOOD: "What sort of alimony do actors owe their managers upon divorce? That age-old question is the subject of a heating-up lawsuit involving former Friends star Lisa Kudrow (left). A California appeals court has reignited a claim by Kudrow's former manager that she owes money"
SHERMAN (Tex.) "Dallas title attorneys have filed a proposed class action against Intuit's Quickbooks after experiencing several brief outages associated with Quickbooks Online and Quickbooks Payroll Subscription Service."
LAS VEGAS: "The Las Vegas topless dancing club at the center of Clark County's biggest political corruption scandal in memory is back in the news -- this time over charges the current owner was misled and overpaid for the club."
FRISCO (Tex.) "EmFinders, a technology company that offers a wearable cellular locator device for impaired adults and children, announced today the termination of its relationship with Project Lifesaver International (PLI). EmFinders also filed a lawsuit against Project Lifesaver International for Breach of Contract and Tortious Interference."
LOS ANGELES: "The Sixth District Court of Appeal . . . revived a lawsuit alleging that the California State Automobile Association fired employees who served it for more than 20 years in an attempt to escape its promise to relax sales quotas as the employees neared retirement age."
PETERHEAD (U.K.): "A leading seafood firm has failed in an attempt to sue the designers and builders of its north-east processing plant."
Sherlock Holmes on gratuitous transfers
Problems involving gratuitous transfers are found in both property and contract law. A fair chunk of the law of promissory estoppel, I've always thought, has its roots in the failure of property law (and the law of estates and trust) to deal adequately with situations where a clearly intended gift fails on technical ground.
I'm also a fan of the late Sherlock Holmes, just rereading (for about the fifth time) the Hound of the Baskervilles. So I obviously enjoyed a new paper by my Texas Wesleyan colleague Stephen Alton, The Game is Afoot!: The Significance of Gratuitous Transfers in the Sherlock Holmes Canon, The paper is written in cooperation with one Dr. John H. Watson, of 221B Baker Street. Here's the abstract:
This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the case occurs because of the desire of the wrong-doer to come into an inheritance, a bequest, or the present possession of an estate in land more quickly – perhaps by dispatching the intervening heir, beneficiary, or life tenant. Professor Alton has annotated this manuscript, providing extensive analysis of these issues and citations to relevant, contemporary authority in his footnotes.
November 1, 2010
Today in History -- November 2
1602 – British merchant Edward Colston is born at Bristol. He will make an enormous fortune from the slave trade, but will use philanthropy to clean up his name—a lesson that many future plutocrats will take to heart.
1772 – Samuel Adams and Dr. Joseph Warren form the Committee of Correspondence that will play a major role in uniting the American colonies in opposition to British misrule.
1796 – Future lawyer, House Speaker, Tennessee governor, and U.S. President James Knox Polk is born at Pineville, North Carolina.
1889 – North and South Dakota are admitted as the 39th and 40th U.S. states.
1920 – Westinghouse Electric Co. takes to the air with the world’s first commercial radio station, KDKA in Pittsburgh.
1936 – Future California Chief Justice Rose Elizabeth Bird is born near Tucson, Arizona. She will later become the first appellate judge ever removed by voters in California, going down by a 67-33 margin.
1947 – Hughes Aircraft Co. conducts the first flight of the H-4 Hercules transport plane, a plywood airplane that could carry 750 troops or a Sherman tank. Skeptics will call it ths "Spruce Goose," although it’s actually made from laminated birch.
1960 – Penguin Books is found not guilty of obscenity for publishing the dullest obscene novel in history, Lady Chatterley's Lover.
2004 – Dutch filmmaker Theo Van Gogh (top right) is shot to death by a Muslim terrorist angered by Van Gogh’s film exploring treatment of women in Islamic society. An attempted decapitation fails, however.
What do ContractsProf and Susan Lucci have in common?
The good folks at Lexis/Nexis, showing perhaps more good sense than tact, have just notified us here at ContractsProf that we did not make this year's list of the Top 25 U.S. business blogs. But we were nominated, and our email notification remarks that our readers "really like" our blog. Thanks, Mom. Next time get the rest of the family to vote.
Students sue colleges, claiming they were promised jobs
Students who enrolled at MedVance Institute in hopes of getting jobs in the health care field are suing, claiming damages for "breach of contract, fraudulent misrepresentation, unfair and deceptive trade practices and more." Students claim that they were encouraged to take on Federal student loan debt based on claims that MedVance would prepare them for exciting careers in health care, but wound up getting an education worth much less than they paid.
Most of these claims are currently targeted at for-profit schools, but if the new depression keeps up much longer, I suspect we'll see a lot more of them aimed against state-owned and nonprofit schools. That's where the big money is.