Friday, July 29, 2011
For anyone in need of a current case/hypo to help illustrate promissory estoppel (and perhaps the statute of frauds along with unjust enrichment), consider the latest suit filed by famous actor, Joe Pesci. In his breach of oral contract complaint,* Pesci claims that he was promised the role of round-faced Angelo Ruggiero in a new film about famed gangster, John Gotti, to be played by John Travolta. In reliance on that promised role, Pesci abandoned his usual diet and exercise routine and gained thirty pounds to look more like Ruggiero. After the weight gain, producers advised Pesci that he no longer would be playing Ruggiero in exchange for the initially-promised $3 million; instead, he would be offered a lesser role (playing the man who allegedly killed Gotti) for $1 million. Pesci alleges that the film producers were enriched because they used his established mobster-playing cache to help promote the movie and obtain funding. The film's current producer claims that Pesci was the one who backed out of the deal after Pesci's preferred director, Nick Cassavetes, quit. Pesci acknowledges that there was no written contract but a signed writing likely would not be required in this case. If Pesci can't show an otherwise valid oral contract, promissory estoppel issues to ponder include...Was there an actual promise? (Pesci points to a press conference and a website announcement as possible sources of the promise.) Was Pesci's reliance reasonable? Is there injustice absent enforcement of the promise? And what exactly are his damages?
* Pages missing
Wednesday, July 27, 2011
Cohen, Ronnie and Shannon O'Byrne. Burning down the house: law, emotion and the subprime mortgage crisis. 45 Real Prop. Tr. & Est. L.J. 677-729 (2011).
Encinas, Carlos A. Clause majeure?: can a borrower use an economic downturn or economic downturn-related event to invoke the force majeure clause in its commercial real estate loan documents? 45 Real Prop. Tr. & Est. L.J. 731-776 (2011)
Monday, July 25, 2011
Pick up a copy of any law review that you see, Roberts said, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.
We will assume that the Chief Justice is exaggerating for effect, as he must have rubbed shoulders with enough academics to know that very few law professors are very much interested in Kant's views, the 18th century or Bulgaria. Still, it is true that most academics do not write with courts or even practitioners in mind. While we might hope to have some sort of long-term effect on policy, I think most of us write in conversation with each other and with our students. Scholarship is often inspired by Supreme Court decisions that, in the opinion of the author, have strayed from wise policy, precedent or both. It is no surprise that the author of such opinions would find such scholarship tiresome.
Every so often I glance at ContractsProf Blog’s regular “New in Print” posts (e.g., here) and “Weekly Top Tens from the Social Science Research Network” posts (e.g., here). So far, I haven’t been tempted to read any of the law review articles listed, because I haven’t seen anything that seems as if it treats, in a compelling way, what you should say in a contract, or how you should say whatever you want to say.
I think I would have to agree with everything after "because", but I also find it hard to imagine why anybody would write a law review article about this topic, given that there are practical books on contracts drafting (including one by Kenneth A. Adams). I have a hard time trying to articulate why this subject is not an attractive topic for a law review article but an eminently sensible book project. I have occasionally heard colleagues disparage law review articles as "mere practitioners' notes." Heaven forfend that my work ever be so labeled, but it is a real danger, as I'm not sure how one makes the determination.
It also occurs to me that I read law reviews occasionally when clerking for my judge and when researching constitutional issues for my firm's Supreme Court appellate practice but never (that I recall) while litigating contracts disputes. Should we academics be making more of an effort in this area?
Hypersonic Technologies Corporation (Hypersonic), an advanced software engineering firm based in Fort Wayne, Indiana, entered into a sub contractor agreement (Agreement) in October 2009 with Enhanced Network Solutions (ENS) a firm that modifies existing software.
The Agreement stated that if ENS and Hypersonic successfully bid on a joint project, ENS would authorize Hypersonic to act as a subcontractor for ENS clients. Also in the Agreement was the following clause:
11.5 Employee Protection. During the term of this Agreement and for a period of twelve (12) months from the date of effective date of its termination, unless mutually agreed to in writing otherwise the Parties (including any successor-in-interest or related company) shall refrain from soliciting or inducing, or attempting to solicit or induce, any employee of the other Party in any manner that may reasonably be expected to bring about the termination of said employee toward that end and, in the event of a breach of this clause, that party in breach shall pay to the party not in breach the sum equivalent to twelve (12) months salary of the employee in question.
The dispute arose because during the Agreement period, Hypersonic posted a listing for an outside sales representative on LinkIn. Robert Dobson, an ENS sales representative, saw the posting and informed the President of Hypersonic he was interested in the position. After meeting with Hypersonic’s owner and president, Dobson was offered and accepted the position of Executive Director of Sales at Hypersonic.
Hypersonic filed a complaint seeking a declaratory judgment that the Agreement was unenforceable. ENS counterclaimed. The trial court ruled for Hypersonic, finding that it did not “solicit, induce, or attempt to solicit or induce Dobson to terminate his employment with ENS.” On Appeal by ENS, in Enhanced Network Solutions v. Hypersonic Technologies Corp., the Indiana Court of Appeals found that the trial court was correct in finding Hypersonic did not act to solicit any of ENS’s employees.
In interpreting the Agreement, the Court noted that the terms “solicit” and “induce” were not defined. The Court therefore utilized the dictionary definitions of both words, treating “inducing” as “enticing or persuading” and “soliciting” as “requesting or seeking.” Based on these definitions, the Court found that Hypersonic did not solicit or induce Dobson because he had initiated the first contact about the position. Further, during the second meeting Dobson laid out his compensation requirements before Hypersonic made any offer of employment.
The Court of Appeals concluded that Hypersonic did not breach the Agreement.
We note that, while the decision might be correct, it seems a stretch to claim that a job posting is not a solicitation or inducement. Rather, the key here is that the LinkedIn post was directed at the public at large and was not an attempt to solicit or induce any particular person and does not appear to have been directed at Dobson or any other ENS employee.
[JT & Katherine Freeman]