ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, December 24, 2010

Merry Christmas!


Best holiday wishes from Bangkok!


December 24, 2010 | Permalink | TrackBack (0)

Thursday, December 23, 2010

Merger Clause Defeats Breach of Contract Action in Wisconsin

Wis-capitol Kudos to the State Bar of Wisconsin for some excellent legal reporting.  Joe Forward, a legal writer for the Bar, has posted a thorough case summary  of a recent contracts dispute, Town Bank v. City Real Estate Development LLC, 2010 WI 134 (Dec. 14, 2010).  The case involved a renegotiated loan agreement between the Bank and the LLC.  Originally, the Bank had signed a commitment letter which obligated it to advance $9 million towards a condominium development, subject to certain financing conditions, which the LLC apparently failed to satisfy.

The parties later entered into a "term credit agreement," under which the Bank loaned only $2.5 million and encouraged the LLC to seek alternative financing for the rest.  The Bank later sought a declaratory judgment that no additional financing was required, and the LLC counterclaimed, seeking the additional $6.5 million.  A jury awarded the LLC $600,000, but the appeals court reversed.

The Wisconsin Supreme Court, by a 5-2 margin, upheld the appeals court.  The decision turned on the Majority's finding that the term credit agreement was unambiguous and contained a merger clause that precluded the LLC from introducing evidence of the Bank's prior commitments to provide additional financing.  Two dissenting justices would have allowed consideration of the earlier commitment letter.  The dissenting justices were concerned that the ruling might create uncertainty in contractual relationships since a merger provision in one agreement between the parties could have unforeseen ramifications for earlier agreements between the parties.  Cleverly mining an amicus brief by the Wisconsin Bankers Association for arguments that cut against the Association's interest in the case, the dissenting justices viewed the commitment letter as a stand-alone agreement that must be subjected to separate interpretation from that of the term credit agreement.  

This might be a nice teaching case for those interested in looking for recent takes on the parol evidence rule.


December 23, 2010 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

6th International Conference on Contracts

Beach Stetson University College of Law and Texas Wesleyan School of Law are co-sponsoring the 6th Annual International Conference on Contracts, February 18 and 19, 2011, at Stetson’s beautiful campus in Gulfport, Fla. Similar to previous contracts conferences held at UNLV, McGeorge, South Texas, Texas Wesleyan, and Gloucester, England, this conference is designed to offer scholars and teachers at all experience levels an opportunity to present and discuss recently-published papers, forthcoming papers, works-in-progress, and pedagogical innovations, and to network with colleagues from the U.S and around the globe.

The conference hotel will be the Tradewinds Resort in nearby St. Pete Beach. Need we say more?  Well, in case we do need to say more, we'll say this: Stewart Macauley will give the keynote address.  

You can register for the conference here.


December 23, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 22, 2010

Paris Hilton Sued for Breach of Contract

Hilton_mug_shotI know.  It is hardly news that Paris Hilton (PH) is being sued for breach on contract.  I mean, haven't we already run the same headline here, here, and here.  But this is a new case, and the more pictures we have of PH on the blog, the more visitors we get, so for those of you who are looking for real news about contracts law, you'll have to skip on to one of our non-fluffy posts.  And for those of you genuinely interested in PH, shame on you!

In this case, according to the Courthouse New Service, Le Bonitas of Bologna claims that it paid PH a nearly 100,000 Euro advance in return for the right to use PH's name and image on its clothing.  Under the terms of the agreement, Le Bonitas was to submit each article of clothing to PH Enterprises for approval within 10 days.  No response after 10 days was to be construed as disapproval.  But PH was allegedly too busy to respond to Le Bonitas's requests in a timely manner.  Perhaps they should have followed Dwight Schrute's example and treated silence as acceptance. Perhaps PH would have been too busy to follow up and sue if Le Bonitas had breached the terms of the licensing agreement.

The company is seeking $200,000 in damages for breach of contract.  



December 22, 2010 in Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 21, 2010

Weekly Top Ten from the Social Science Research Network

SSRN No really hot scholarship --based on downloads, anyway -- this week.  Contracts scholars, this is your chance to break into the big time.

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

October 21, 2010 to December 20, 2010

RankDownloadsPaper Title
1 193 Choice of Forum Provisions in Intra-Corporate Litigation: Mandatory and Elective Approaches (The 2010 Pileggi Lecture) 
Joseph Grundfest
Stanford University Law School, 
Date posted to database: October 11, 2010 
Last Revised: October 27, 2010
2 192 Party Autonomy in Rome I and IΙ from a Comparative Perspective 
Symeon C. Symeonides
Willamette University - College of Law, 
Date posted to database: October 25, 2010 
Last Revised: October 26, 2010
3 192 The Gold Clause Cases and Constitutional Necessity 
Gerard N. Magliocca
Indiana University School of Law - Indianapolis, 
Date posted to database: November 17, 2010 
Last Revised: November 21, 2010
4 191 Suing the Government as a 'Joint Employer' - Evolving Pathologies of the Blended Workforce 
Steven L. SchoonerCollin D. Swan
George Washington University - Law School, George Washington University - Law School, 
Date posted to database: October 21, 2010 
Last Revised: November 16, 2010
5 151 Divided Loyalties: The Attorney’s Role in Bankruptcy Reaffirmations 
Gregory M. Duhl
William Mitchell College of Law, 
Date posted to database: November 17, 2010 
Last Revised: November 17, 2010
6 140 The Regulation of Surrogate Motherhood in Greece 
Aristides N. Hatzis
University of Athens - Department of Philosophy & History of Science, 
Date posted to database: October 10, 2010 
Last Revised: October 10, 2010
7 137 Access or Expectation: The Test for Fiduciary Accountability 
Robert Flannigan
University of Saskatchewan, 
Date posted to database: October 29, 2010 
Last Revised: December 17, 2010
8 127 When Do Fiduciary Duties Arise? 
James J. Edelman
University of Oxford - Faculty of Law, 
Date posted to database: October 26, 2010 
Last Revised: November 13, 2010
9 104 Contract, Uncertainty and Innovation 
Ronald J. GilsonCharles F. SabelRobert E. Scott
Stanford Law School, Columbia University - Law School, Columbia University - Law School, 
Date posted to database: November 20, 2010 
Last Revised: December 3, 2010
10 91 Structure and Reform of Corporate Governance in the United Kingdom in Relation to the Shareholder Versus the Stakeholder Theory 
Rohit Arora
Unaffiliated Authors - affiliation not provided to SSRN
Date posted to database: September 29, 2010 
Last Revised: September 29, 2010

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic) 

October 21, 2010 to December 20, 2010

RankDownloadsPaper Title
1 88 Strategic Default: The Popularization of a Debate Among Contract Scholars 
Meredith R. Miller
Touro College - Jacob D. Fuchsberg Law Center, 
Date posted to database: October 3, 2010 
Last Revised: November 17, 2010
2 86 The English vs. The American Rule on Attorneys Fees: An Empirical Study of Attorney Fee Clauses in Publicly-Held Companies’ Contracts 
Theodore EisenbergGeoffrey P. Miller
Cornell University - School of Law, New York University (NYU) - School of Law, 
Date posted to database: November 11, 2010 
Last Revised: November 15, 2010
3 60 Origin Myths, Contracts, and the Hunt for Pari Passu 
Mark C. WeidemaierRobert E. ScottG. Mitu Gulati
University of North Carolina (UNC) at Chapel Hill - School of Law, Columbia University - Law School, Duke University - School of Law, 
Date posted to database: July 17, 2010 
Last Revised: November 10, 2010
4 50 An Optional Instrument on EU Contract Law: Could it Increase Legal Certainty and Foster Cross-Border Trade? 
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL), 
Date posted to database: October 23, 2010 
Last Revised: December 15, 2010
5 41 An Optional Contract Law for Europe? (Rote Karte oder grünes Licht für den Blue Button) (German) 
Walter Doralt
Max Planck Institute for Comparative and International Private Law, 
Date posted to database: November 11, 2010 
Last Revised: November 11, 2010
6 36 Rudolf Von Jhering’s Influence on Karl Llewellyn 
Robert WhitmanJulie E. Wynns
University of Connecticut School of Law, Unaffiliated Authors - affiliation not provided to SSRN
Date posted to database: October 1, 2010 
Last Revised: October 1, 2010
7 32 The Double Soul of Promissory Estoppel - A Comparative View 
Paolo Pardolesi
Università degli Studi di Bari - Faculty of Law, 
Date posted to database: November 5, 2010 
Last Revised: December 8, 2010
8 31 How Organisational and Structural Weaknesses Impacted the Harmonisation Process and What it Implies for European Private Law (Strukturelle Schwächen in der Europäisierung des Privatrechts – Eine Prozessanalyse der jüngeren Entwicklungen) (German) 
Walter Doralt
Max Planck Institute for Comparative and International Private Law, 
Date posted to database: November 11, 2010 
Last Revised: November 11, 2010
9 21 Arbitration's Suspect Status 
Hiro N. Aragaki
Fordham University - Fordham University Schools of Business, 
Date posted to database: November 29, 2010 
Last Revised: December 2, 2010
10 19 Autonomy and Paternalism from a Common Law Perspective: Setting Aside Disadvantageous Transactions 
Stephen Michael Waddams
University of Toronto - Faculty of Law, 
Date posted to database: October 25, 2010 
Last Revised: October 25, 2010


December 21, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, December 20, 2010

Adobe Alleges Breach of a Non-Compete Agreement

Adobe As reported in the Deseret News, Adobe Systems is suing c Joshua James, the co-founder of Omniture, a company that Adobe bought in 2009.  James received $80 million in the transaction, and he was also paid handsomely to stay on as an Adobe executive in charge of the Omniture division.  When he left Adobe, he received another substantial one-time payment, but now Adobe claims that he has violated the terms of the agreement he entered into with Adobe at that time.  In a suit filed on December 10th, Adobe alleges that James bought Corda Technologies and now serves as that company's CEO.  Adobe alleges that Corda competes with Adobe and thus that James's purchase of and executive status in Corda violates his non-compete agreement.  In addition, Adobe alleges that James attempted to recruit at least one key employee from Adobe, also in violation of the agreement.  

James denies all wrongdoing, claiming that he has been very careful to abide by the terms of his agreement with Adobe and that he has never attempted to lure employees away from Adobe.  "In fact," he claims, "I have convinced dozens of unhappy Adobe people to stay."  I love that line, because you know someone is really your friend and has your best interests at heart when they tell you to keep the job that is making you miserable.  James also claims that Corda does not compete with Adobe.  Rather, Adobe buys Corda's products.  James chalks it all up to a personal vendetta against him.  But James apparently also filed a suit against Adobe alleging that it was trying to interfere with his work at Corda.  

I would be cautious about suing the company that owns Photoshop.  They can really do a number on you.



December 20, 2010 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)