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Thursday, February 17, 2011

The Huffington Post/AOL Merger: Choice and Value in Contracts

Arianna+Huffington+AOL+Maxim+Party+Powered+PH6TdhtTbuhl The Huffington Post/AOL Merger that is rousing indignation in certain quarters  got me thinking about value and choice in contractual bargains. 

What is “a good bargain”?  Is it all in the price?  The price may or may not reflect the value of the subject of the bargain.  It may be underpriced (to the glee of the buyer), or overpriced (to the satisfaction of the seller).   An underlying belief about what the basic value of the subject is must also exist.  Without that underlying belief, judgments about how underpriced or overpriced - and thus, how good or bad - the proposed contractual bargain (price) is, cannot be made.  So, what is the true value of the Huffington Post?  Some see the HuffPo as a barely five year old celebrity upstart that defied expectations to become a remarkably popular blog.   Was it a steal or a bust at 315 million?  

Celebrity, even notoriety, seems admired and  highly valued these days.  And, if admiration is not quite the word, the fact of celebrity -  even where the person concerned is famous for simply being famous – certainly draws our attention.  It is because of this that the 'art' of being a celebrity is a hardnosed business pursuit rather than a frivolous lark.  There is no shortage  of promoters willing to pay someone - anyone - who can attract, however fleetingly, the public’s attention.  In this era of the ever shrinking attention span therefore, the proverbial fifteen minutes of fame is a lifetime in dog celebrity years.  How to explain otherwise the high dollar book deals, and the endorsements that are the badge of even the most tenuous celebutante? 

So, how to quantify the objects of our admiration?  We may not even be dealing with objects but with abstract values if you will – celebrity, popularity, notoriety to name a few.  Might a sampling of celebrity book deal dollar values yield a value index of sorts?  Perhaps - if accurate figures were not so fiercely guarded and exaggerated accounts were not so eagerly circulated.  Perhaps a listing of celebrity books on the New York Times Bestseller List might provide a surrogate of sorts?  One can only hope it was no mean feat for the reflections of a celebutante to make the New York Times Best Seller list at the same time that the memoirs of a former U.S. president did. 

Contract law permits a wide exercise of choice here.  As one person’s trash may be another’s  treasure, it is the buyer’s (or seller’s) choice to make a deal that might seem a bad idea to someone else.  Choice is the operative word – if the party was misled, unduly influenced or improperly threatened for example, the deal will of course be voidable. 

Twenty years ago, America On Line (AOL) was a profitable media giant.  A decade later, a less vibrant AOL consented to become a part of the Time Warner group.   Seen as a bad idea at the time by some and now viewed as possibly the worst merger deal in history,  there was no suggestion when it all ended badly, that it was anything other than an ill-advised gamble.    Now a very publicly ailing member of a reputably dying breed of media and print enterprises, AOL has by this merger bought itself a chance to turn around it’s all but inevitable demise.

Presuming that this can only be a good deal for AOL which had to do something, anything, or die, what about the Huffington Post?  Did the HuffPo get ‘good value’ for the trade?  The jury is out on whether the deal  will be a vindicated or regretted.  Contractually speaking, however, a contractual party is entitled to exactly what he or she bargained for – nothing more, nothing less.  Full performance of a party’s side of the bargain discharges that party’s duty to perform, while the unexcused non performance of even part of a due duty is a breach per the Restatement of Contracts (2nd) §235. 

The bargain, ideally, was shaped by the parties preferences.  A party may thus receive as the exchange, if she chooses, a little something now whose value at the time of contracting is greater to her than its face value. She may promise to pay, if she wishes, double, threefold or more of that face value in exchange, sometime in the future.  She may choose, conversely, to pay big money for a subject of seemingly slight value in the hope that the potential she sees will soon be realized.  If that potential is unrealized, she will wear the risk.  Unfair tactics and public policy aside, the law is content to permit her to assign whatever value she chooses to the subject of her desire be it increased popularity, an entry pass into a stronger corporate group, or a chance to play with the big boys. 

Should we conclude therefore that value is in the eye of the beholder, and that the measure of a subject’s value is how much people are willing to pay for it?  This is a logical deduction,  but only one side of the value-is-determined-subjectively v objectively jurisprudential debate.   It must be harder in any event, to quantify the value of celebrity musings without reference to sponsored endorsements, celebrity impact rankings and such.  It evidently is just as difficult, if not more so, higher up the food chain.  Take our example of  a very popular upstart website/blog.  Analyses of monitored acquisition deals indicate that online media sites are typically acquired for 1½ times the amount of their generated revenues.  Launched barely five years ago, the Huffington Post was acquired for 315 million - reportedly five times its generated revenue.  It is hard to know whether this figure is a hardnosed assessment of the HuffPo’s worth, or a reflection of the fact that the negotiations were between an ailing giant and an ambitious upstart fledgling.

If all goes well, the ultimate verdict may one day be that the HuffPo was a steal at 315 M.  It is possible that Adrianna Huffington may come to rue the bargain that looked oh so good at the time.  If AOL’s profitability hemorrhage is not stemmed by this deal, on the other hand, its 315 M payout will be just one more milestone in its march to oblivion. There is no contractual rule against a deal that was, with hindsight, ruefully underpriced or fatally expensive.   Contract law will be content where the regretted deal, truly bargained for and not compromised by vitiating factors, was based upon a freely quantified exchange. 

The parties considered the bargain.  They assessed its value.   Once you have done that, “you pays your money and you takes your choice.”

 

[Eniola O Akindemowo]

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