Friday, August 19, 2011
Another school year is upon us. This post is for the profs who begin the course with a discussion of consideration.
George Soros was sued by a former girlfriend. She alleges that Soros broke promises to buy her apartments (yes, plural) in New York City. She seeks $50 million in damages. Here's more from the WSJ:
Hedge fund titan George Soros is facing a lawsuit from a former girlfriend, who alleged that he broke promises to buy her apartments in New York City.
The lawsuit, filed in state Supreme Court in Manhattan, also alleged that after an argument about the apartments in August 2010, Mr. Soros slapped the woman, Adriana Ferreyr, across the face while the two were in bed, attempted to strike her with a lamp and tried to choke her.
Mr. Soros's lawyer, William D. Zabel, said in a statement that the lawsuit is "frivolous and entirely without merit." The lawsuit was first reported in the New York Post.
Robert Hantman, a lawyer for Ms. Ferreyr, 28 years old, didn't immediately return a call seeking comment.
The lawsuit seeks damages of $50 million. One of the apartments at issue in the lawsuit was valued at about $2 million and the other was valued at about $4 million, the complaint said.
Mr. Zabel said in the statement that Mr. Soros, 80, did have an "on-again, off-again and non-exclusive relationship" with Ms. Ferreyr, which lasted from about 2006 to 2010.
He said the complaint "is riddled with false charges" in an attempt to "extract money" from Mr. Soros, who is one of the wealthiest people in the world, with a personal net worth of about $14 billion.
The lawyer said police investigated the August 2010 incident but filed no charges.
"George Soros did not slap, choke or throw a lamp at her," he said, adding that he will seek to have the lawsuit dismissed.
[Meredith R. Miller]
According to this exclusive report from Wired.com, the Department of Defense's Inspector General is looking into $1.7 million in contracts between the Defense Advanced Research Projects Agency (DARPA), the Pentagon's top research division, and RedXDefense a corporation owned in part by DARPA's director, Regina Dugan. According to Wired, RedXDefense is indebted to Dugan to the tune of $250,000.
DARPA representatives claim that the investigation is routine and that RedXDefense won its contracts fair and square. Dugan reportedly recused herself from all deliberations that resulted in the award of contracts to RedXDefense. Still, Wired reports that the contracts were not reviewed by someone outside of DARPA so that decision-makers likely were still subject to Dugan's influence.
In other news, Pentagon officials are denying rumors of a merger between DARPA and the Dharma Initiative.
Thursday, August 18, 2011
The title of the conference is: Empirical and Lyrical: Revisiting the Contracts Scholarship of Stewart Macaulay. A website with details about the conference, including a draft program and a brief description of paper topics, has been established at http://law.wisc.edu/ils/2011contractsconf/homepage.html. Sixteen papers will be presented at the conference, by the following scholars: David Campbell, Robert W. Gordon, Ethan Leib, Brian Bix, Jay Feinman, Gillian Hadfield, Claire Hill, Charles Knapp, Deborah Post, Edward Rubin, Carol Sanger, Robert Scott, D. Gordon Smith, Josh Whitford and Li-Wen Lin, John Wightman and William Woodward. The conference will conclude with a banquet on Saturday, October 22, at which Stewart Macaulay will give a talk. The conference papers will later be published as a book.
All faculty and academic staff at any university are welcome to attend. There is no conference fee. Pre-registration is required for the conference and for the conference banquet. For more information, including housing information, see the website linked above. Questions about registration, housing, etc., should be directed to Pam Hollenhorst, Conference Coordinator, at firstname.lastname@example.org. Other questions about the conference should be directed to Bill Whitford, at email@example.com.
Jean Braucher, University of Arizona Law College
John Kidwell, Wisconsin Law School
Bill Whitford, Wisconsin Law School
Wednesday, August 17, 2011
Last week, the Eleventh Circuit Court of Appeals decided Cruz v. Cingular Wireless, LLC, a case very similar to AT&T Mobility v. Concepcion, which we have previously discussed here and here. In light of the Supreme Court's decision in Concepcion, the Eleventh Circuit unanimously affirmed the District Court, which had granted the defendant's motion to compel arbitration.
In Concepcion, the Supreme Court held that California's state law rendering unenforceable provisions in arbitration agreements that preclude class actions are themselves pre-empted by the Federal Arbitration Act. Florida has a law similar to California's. The defendant in the Florida case is now called AT&T Mobiility (ATTM), since AT&T acquired Cingular. Consumers who use ATTM's services are subject to a Wireless Service Agreement which contains an arbitration provision and expressly prohibits class actions in connection with the agreement.
Plaintiffs nonetheless attempted to bring a class action suit to protest montly $2.99 charge for roadside assistance which plaintiffs claimed they never ordered, could not easily identify on their bill and could not get removed even if they expressly declined the service. Pre-Concepcion, it appears that Florida courts simply found the agreement's provision barring class actions to be enforceable as a matter of Florida law. Plaintiffs were alleging that ATTM's practices violated the Florida Deceptive and Unfair Trade Practices Act, but that Act is enforceable in arbitration, so the agreement does not undermine the Act. Plaintiffs objected that nobody is going to go to the expense of individual arbitration over a monthly charge of less than $3. But that objection was nullified because the Act allows for the recovery of all arbitration costs, including attorneys' fees, and because under the agreement, ATTM agreed to pay all arbitration costs, regardless of outcome, so long as the claim was not frivolous.
Post-Concepcion, Plaintiffs argued that the remedial goal of the Act would be undermined if class action status was not available because: 1) no attorney will represent an individual plaintiff with a small but complex claim; and 2) consumers would not even know that they had a claim with out the notice provisions made possible through the class action mechanism. The Eleventh Circuit was unmoved. These very policy arguments were considered and rejected in Concepcion. Additional empirical evidence presented in this case did nothing to undermine the applicability of the principle articulared in Concepcion to this very-nearly identical case.
Estelle Derclaye and Marcella Favale, Regulating User Contracts: The State of the Art and a Research Agenda, 18 J. Intell. Prop. L. 65 (2010)
Kenneth F. Dunham, Construction Arbitration: Collected Works, 2 Faulkner L. Rev. 311 (2011)
Martin Kretschmer, Regulating Creator Contracts: The State of the Art and a Research Agenda, 18 J. Intell. Prop. L. 141 (2010)
Roy S. Mitchell, Cultural Sensitivities in International Construction Arbitration, 2 Faulkner L. Rev. 325 (2011)
Richard Watt, Economic Theory of Copyright Contracts, 18 J. Intell. Prop. L. 173 (2010)
Tuesday, August 16, 2011
We learn from our sources (and from this story on ESPN.com) that carpenter Brent
Loveland is suing Oklahoma State football coach Mike Gundy (pictured, left) for breach of contract. According to ESPN, Loveland claims that he showed up for work wearing a t-shirt that read "Oklahoma Baseball" in offensive red block letters. Gundy then allegedly did his best Dogberry saying in effect:
Dost thou not suspect my place? Dost thou not suspect my years? . . . No, thou villain, thou art full of piety, as shall be proved upon thee by good witness. I am a wise fellow, and which is more, an officer, and which is more, a householder, and which is more, as pretty a piece of flesh as any is in Messina, and one that knows the law, go to . . . and one that hath two gowns, and everything handsome about him. Bring him away.
Loveland claims $30,000 in damages from the loss of 13 weeks of work. In the alternative, he could be given a $5000 debit card and a trip to NYC in order to buy a new wardrobe (with the advice of Stacy London, pictured, right) before being handed over to Ted Gibson and Carmindy for the final touches.
Monday, August 15, 2011
In March the National Football League Owners (NFL) elected to lockout the players organized through the National Football League Players Association (NFLPA) as the parties could not agree on a new Collective Bargaining Agreement (CBA). This lead to several star players, including Tom Brady and Payton Manning, brining an antitrust suit against the NFL. Four and a half months later, as reported here on National Football Post.com, the two sides have agreed to a new CBA that will last through the 2020 season and the 2021 draft. ESPN reports that as a condition of the new CBA, all pending litigation needed to be settled. In the end, as ESPN reports here, NFL players agreed to release their claims without any compensation.
National Football Post.com provides a detailed summary of the 300-page plus CBA. The new CBA introduces several changes from the prior agreement, focusing on the players’ health and safety, benefits for retired players, the draft and free agency, compensation for rookies entering the league, and the economics surrounding the salary cap. In order to promote player health and safety, the new CBA reduces the length of off-season programs and organized team activities. If limits on-field practice time and the amount of contact practices, and increases the number of days off for players. In addition, the CBA allows current players to remain in the player medical plan for life and offers enhanced financial protection for injured players. The NFL and NFLPA also agreed to a $50 million per year joint fund for medical research, healthcare programs and charities.
Increased benefits for retired players include the creation of a “Legacy Fund” devoted to increasing the pension for those players who retired before 1993. The two sides also agreed to improve post-career medical options, the disability plan, the 88 plan (which provides assistance to disabled players and those with certain diseases developed due to playing), career transition and degree completion programs, and player care plan.
Under the new CBA players become unrestricted free agents (UFA) after four accrued seasons in the league. Players can become restricted free agents (RFA) after three accrued seasons in the league. Teams with RFAs have a right of first refusal on players who sign an offer sheet with another team allowing teams the opportunity to match the offer or receive draft pick compensation for the players.
Another new element to the CBA is the creation of a rookie pay scale. Under the new agreement, all drafted players will receive 4 year contracts and all undrafted players receive 3 year contracts. The teams have a maximum total compensation they can spend for each draft class and there are limited contract terms within the rookie contracts. The CBA also contains strong rules against rookies holding out and not signing with the teams, and teams also have the option to extended the rookie contract of a first round draft pick to a fifth year based on an agreed upon tender amount. The money saved by teams based on this structure is creating a new fund starting in 2012 to redistribute the money to current and retired players as well as into a veteran player performance pool.
The two sides also agreed upon a new salary cap and revenue sharing agreement that will be in place over the length of the new CBA. Starting with the 2012 season the salary cap will now be based on a share of “all revenue,” and the players are to receive 55% of the national media revenue, 45 % of NFL ventures revenue, and 40% of local club revenue. Player minimum salaries also saw a 10% increase for this year and will continue to increase throughout the length of the agreement.
Finally, the agreement also stipulates that there is to be no judicial oversight of the CBA, and that if there are disputes the NFL and NFLPA will employ an independent third party arbitrator which they agree upon to settle the dispute. To insure labor peace, the new agreement contains a clause stating that the players will not strike nor will the owners lock out the players during the duration of the agreement.
Boogity, boogity, boogity, Amen.
[JT & Jared Vasiliauskas]