ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Thursday, January 27, 2011

A Heroic Breach of Contract

Meche As the New York Times reports today, Gil Meche (pictured), until recently a pitcher for the Kansas City Royals, has breached his contract.  He was due to be paid $12 million for the 2011 season, but he has a bum shoulder, and he has chosen to retire rather than to be paid what he called "a crazy amount of money for not even pitching."  As the Times points out, Meche's decision is not entirely without precedent, but in most cases, injured players go through the motions of surgeries and rehab even when they have little hope of returning to the game.  Baseball management does not expect them to retire -- career-ending injury is simply a risk assumed by management when it enters into guaranteed contracts with ball players.  

Why did Meche do it?  He says he did it because he didn't feel right taking more money from a team that had already given him over $40 million.  The Royals had signed Meche in 2007 to a five- year, $55 million contract, and they were widely criticized for having done so.  Meche seems to be very grateful to a team that believed in him when others did not.  He wants to retain his dignity, free up some cash for the organization, and (this is inevitable) spend more time with his family.

It's a wonderful story.  I wonder what other professional athletes think of this.  After all, although the players are well paid, they are still the employees of fabulously wealthy professional sports franchise owners.  Meche's decision could become a precedent that the Steinbrenners of the world could wield to exert pressure on their aging stars to go gently into the good night of minor league coaching or whatever.

[JT]

January 27, 2011 in In the News, Sports | Permalink | Comments (4) | TrackBack (0)

It's the Pits: Dennis Kucinich Sues Cafeteria for Breach of Implied Warranty

Olive Ohio Congressman and former presidential candidate Dennis Kucinich bit into a sandwich wrap containing an olive pit and now he is suing a congressional cafeteria for $150,000.  He claims negligence and breach of the implied warranty of merchantability.  Paragraph 10 of the complaint:

Said sandwich wrap was unwholesome and unfit for human consumption, in that it was represented to contain pitted olives, yet unknown to plaintiff contained an unpitted olive or olives which plaintiff did not reasonably expect to be present in the food prepared for him, and could not have visually detected prior to consumption.

Apparently, he bit into the olive pit and incurred dental and medical expenses, and suffered loss of enjoyment and other damages.

Sounds like Webster v. Blue Ship Tea Room, 347 Mass. 421 (1964), all over again.  Does an olive pit make a sandwich wrap unfit for human consumption?  Does it matter what kind of wrap it was?  (I imagine Kucinich is vegetarian, if not vegan).

[Meredith R. Miller] 

January 27, 2011 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

New York Times Editorial Weighs in on General Dynamics and Boeing

Nytimes_hq In yesterday's post, Neil O'Donnell pointed out that there is some precedent for Justice Scalia's "go away" jurisprudence in the realm of government contracting.  It remains to be seen if that is the direction the court will go or if this new exercise of the Court's power to fashion equitable remedies can be reconciled with the views of Justice Scalia expressed in his recent concurrence, that the Court ought not to be inviting litigants to come to the Court so that it can tailor new remedies to meet the needs of each fact pattern that arrives before it.

However, The New York Times, in an editorial published on Tuesday, January 25, 2011, focused on the jurisprudence of the state secrets privilege (the SSP) rather than on that of government contracting.  The Times editorial board expresses concern that the government can derive tactical advantages from its ability to invoke the SSP, a topic explored through the Herculean research efforts of our guest blogger Laura Donohue in The Shadow of State Secrets.  Rather than simply telling the litigants to go away, the Times exhorts the Court to use this opportunity to rein in government use of the SSP:

The court should narrow the privilege to what it was in Reynolds, a limited basis for the government not to disclose a piece of evidence so it can’t be invoked to dismiss entire claims or cases. The court should also rule that trial judges faced with claims of privilege must examine the evidence to ensure they are convinced about the risk to national security from disclosure.

Indeed, as Justice Kagan noted during oral argument, the SSP is a coin flip in which the government wins either way.  Whether the SSP prevents a plaintiff from making out a prima facie case or prevents the government (or its contractors on whose behalf it intervenes) from establishing an affirmative defense, the government often couples its invocation of the SSP with a motion to dismiss -- often prior to discovery.  

But it seems pretty clear that the Court has no interest in taking up the SSP in earnest at this juncture, and that's unfortunate, because the posture of this case makes for an ideal opportunity for the Court to do so.  In most SSP cases, Scalia's "go away" jurisprudence means a complete and utter victory for the government.  But this time the government has some skin in the game and so this is a perfect occasion for the Court to explore the ramifications of an evidentiary privilege that the government uses both to prevent plaintiffs from making out their case and to excuse itself from its obligations to establish its defenses.  It has done both in these cases, and that should make manifest the imbalances created by the current iteration of the SSP.

 [Related posts listed below]

General introduction to the Roundtable

Professor Laura Donohue's comments

Some footnotes to Laura Donohue's comments

Links to additional comments on the case

Neil O'Donnell's Comments, Part I

Neil O'Donnell's Comments, Part II

[JT]

January 27, 2011 in Commentary, Government Contracting, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 26, 2011

Seinfeld on Collision Damage Waivers & Adhesion Contracts

For anyone  who teaches Lauvetz v. Alaska Sales and Service d/b/a National Car Rental (or any of the issues addressed therein, including enforceability of adhesion contracts, hidden/unknown terms that go beyond one's reasonable expectation, etc.), this short Seinfeld clip is useful (and of course, entertaining).  It aligns with the facts of Lauvetz because Jerry, like the plaintiff in Lauvetz, ends up purchasing "the insurance" and/or collision damage waiver that rental car companies offer.  In the clip, Jerry--like Lauvetz--likely assumes that the insurance/waiver covers far more than it actually covers.  I suppose it also could be used to discuss implied promises or contractual formation, given that the car rental company does not treat Jerry's reservation as a promise or contract.  As Jerry says to the rental company rep, "You know how to take the reservation; you just don't know how to hold the reservation."  

 

[HRA]

January 26, 2011 in Teaching, Television | Permalink | TrackBack (0)

Guest Blogger Neil O'Donnell on General Dynamics and Boeing, Part II

 [This is a continuation of yesterday's post about oral argument in the consolidated cases of General Dynamics and Boeing. v. United States]Podonnell

Although the Justices' questions suggested quite different takes on the case, there seemed to be a couple of common underpinnings for many of their inquiries.  First, there was considerable skepticism as to whether Reynolds' moving party test provided a usable standard for deciding this case.  The Court in Reynolds permitted the Government to invoke the state secrets privilege in defending a wrongful death action by the widows of civilian scientists killed in the crash of a military experimental flight.  That was at least in part because, unlike in a criminal case where the government was prosecuting  the matter, in Reynolds the government was the defendant, not the "moving party."  Although each of the litigants in General Dynamics claimed the other was the moving party, the Justices seemed to find the distinction, which had been clear enough in the tort context, distinctly unhelpful in this contract case.  In fact, in advocating the government's view of the moving party rule, General Katyal found himself in the uncomfortable position of arguing that the government would not be the moving party whether its invocation of the state secrets privilege kept the contractors from having the information necessary to prove a defense or the government from having the information to prove a default.  Not unreasonably, Justice Kagan responded "that really does sound like a tails you win, heads you win, whatever."

Second, the Justices appeared reluctant to move to constitutional law to resolve this dispute.  The contractors' argument that the government's treatment of them was a due process violation did not seem to have any obvious adherents among the eight Justices asking questions.  Rather they struggled to find a way to apply contract law in a situation in which, because of the invocation of the state secrets privilege, several seemed to think that we would never know who was right and who was wrong.

That led to what was in some ways the most interesting feature of the argument.  Justice Scalia appeared strongly motivated to find a way that the parties could be left where they are now, the contractors keeping the $1.35 billion they have been paid but not recovering the additional $1.2 billion that they incurred but had not yet received.  Other  Justices, including Chief Justice Roberts and Justice Sotomayor, seemed to share that interest.  General Katyal argued strongly that there was no principled way to reach that result.  Rather, in his view under the terms of the contract and the applicable law, there were only two choices.  Either the termination for default was upheld and the government was entitled to recover the $1.35 billion in unliquidated payments, plus interest, from the contractors.  Or the termination for default was converted into a termination for convenience and the contractors would be entitled to payment of all of their costs, including not only the unliquidated $1.35 billion in progress payments but also the additional $1.2 billion in costs, plus interest. 

Carter Phillips, arguing for the contractors, initially seemed to avoid the question of whether there was a middle ground, leaving at least some with the impression that he did not think that there was a mechanism available under the applicable law.  But in his rebuttal argument he was clear that he believed that under federal common law contract principles the Court could fashion a way of letting the contractors keep the $1.35 billion at the same time that it found that the government did not need to pay them another $1.2 billion.   He was not specific as to what that way was.

Go_away If the Court does decide that it wants to adopt this approach of leaving the parties where they were immediately before the termination took place – what Justice Scalia characterized as the "'go away' principle of our jurisprudence" – government contract law provides solid precedent.  In its often cited decision in Dynalectron Corporation v. United States, 518 F.2d 594 (Ct.Cl. 1975), the Court of Claims, a predecessor of the Court of Appeals for the Federal Circuit, did essentially that.  The Air Force had terminated for default a contract for jamming antennas to be used on the B-52.  The court found that the Air Force’s specifications were defective in that they were impossible to perform in several respects.  But it also found that the contractor had waived the impossibility as to some, but not all, of those elements and had made serous errors in its own administration of the contract.  In these circumstances in which the court found that both parties were at fault, it relied on equitable powers of the court in actions at law to fashion a remedy in which the parties shared the costs of the contractor’s performance.  The court reformed the contract to provide that  the contractor recovered half of its costs of performance but paid the other half itself.

That same kind of approach would support the middle ground that several of the Justices seemed to be seeking.  Rather than dividing the costs precisely, the Court could leave the parties in the near split in which they had started the litigation, the contractors having been paid $1.35 billion but still being owed another $1.2 billion they would not recover.  The result would be peculiar to these particular facts.  The only precedent would be that when the state secrets privilege is invoked a rough attempt at equity should follow.  While dictating such a result might seem an unusual role for the Supreme Court, this case has gone on for 19 years already.  Perhaps this is the time for the Court to apply Justice Scalia’s “go away” jurisprudence and fashion a Dynalectron like result.  

 [Related posts listed below]

General introduction to the Roundtable

Professor Laura Donohue's comments

Some footnotes to Laura Donohue's comments

Links to additional comments on the case

Neil O'Donnell's Comments, Part I

[posted on Neil O'Donnell's behalf, by JT]

January 26, 2011 in Commentary, Government Contracting, Recent Cases | Permalink | Comments (0) | TrackBack (0)

New in Print

Tuesday, January 25, 2011

Guest Blogger Neil O'Donnell on General Dynamics and Boeing, Part I

Podonnell The Supreme Court argument in the General Dynamics case was a little surreal for someone who has spent a career practicing government contract law.  Very early on Justice Breyer referred to the appellants as "sophisticated contractors … perfectly capable of negotiating their own contract," and suggested that if the Court provided the contractors a remedy when the Government invoked the state secrets privilege "we are not just throwing a monkey wrench into the gears of government contracting, we're throwing the whole monkey."   In his argument Acting Solicitor General Katyal (pictured below, right) returned repeatedly to the idea that these sophisticated  contractors could have written a contract provision providing the remedy that they now seek, namely that a termination for default would be converted into a termination for convenience if the Government invoked the state secrets doctrine in response to a contractor challenge.  And several of the Justices engaged him in discussions that seemed to accept that the parties' negotiation of the contract was a matter of importance.

Katyal It is certainly true that the contractors here, General Dynamics and McDonnell Douglas, since purchased by Boeing, were sophisticated and experienced government contractors.  But for that reason they understood what for the most part the Justices and even those arguing the case did not seem to.  A government contract is in most respects a classic contract of adhesion, about as negotiated as the policy that we all get from our insurance companies.  The government has standard mandatory clauses, set out in the Federal Acquisition Regulation ("FAR"), for virtually any aspect of any type of contract.  Particularly where, as here, the underlying contract award is made competitively, there simply is not any negotiation of the terms of the contract.  The Government dictates the contract terms to which any competing party must bid. 

General Katyal claimed that the contractors could have written into the contract that "if the government invoked the state secrets privilege, it would automatically terminate the contract's default and convert it to – the default termination into a termination for convenience.”  But the A-12 contract contained, as it had to by regulation, a standard default clause set out in  FAR 52.249.  The contractors, General Dynamics and McDonnell Douglas, as well as the unsuccessful competing team, understood when they submitted their competitive offers for this contract that any attempt to condition their proposals on changing that or any of the other mandated government contract provisions would have made their offers non-responsive and subject to rejection.  Negotiating a standard terminations clause is simply not the way that government contracts work, no matter how sophisticated the contractor.

Justice Roberts’ questions came closest to this fundamental point.  He asked the Acting Solicitor General whether he thought that the government would accept a provision requiring an automatic conversion to a termination for convenience if the government invoked the state secrets privilege when a contractor challenged its termination for default.  General Katyal conceded that such a provision would be "very unusual."  When pressed by the Chief Justice as to how contractors were supposed to protect themselves from the effect of the state-secret privilege if the provision Katyal had suggested would solve the problem would not be accepted, Katyal replied "Well – well, I think there are other ways."  But he never was specific as to what they might be, in my view for good reason.

[Part II will come tomorrow; related posts listed below]

General introduction to the Roundtable

Professor Laura Donohue's comments

Some footnotes to Laura Donohue's comments

Links to additional comments on the case

[posted on Neil O'Donnell's behalf, by JT]

January 25, 2011 in Commentary, Government Contracting, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Welcome to the General Dynamics/Boeing Roundtable, Neil O'Donnell

Podonnell Today we continue our discussion of the oral arguments at the Supreme Court in the consolidated cases of General Dynamics v. United States and Boeing v. United States.  We heard from Laura Donohue last week, today Neil O'Donnell will share his thoughts on how the arguments went.

Mr. O'Donnell is a shareholder in Rogers Joseph O'Donnell, a San Francisco law firm and co-author, with his partner, Dennis Callahan, of a recent article on the case.

Here is Mr. O'Donnell's bio, lifted from his firm's website:

In over thirty-five years of practice, Mr. O’Donnell has specialized in public contract and construction law at the federal, state and local levels. He has litigated cases in federal and state trial and appellate courts, the boards of contract appeals and the Government Accountability Office. Representative cases include: restructure of a multibillion dollar classified contract on behalf of a major defense contractor; defense of a national construction contractor and its pipe supplier against latent defect claims on a significant aqueduct project; trial of a termination dispute between the prime and subcontractor on a major state IT systems development contract; successful resolution of a multimillion dollar cost accounting standards dispute with the government on behalf of an aerospace material contractor; pursuing actions relating to power plant and water treatment plant construction projects on behalf of general contractors, subcontractors and the suppliers and fabricators of principal components; federal and state false claim act actions and federal, state and local bid protests relating to equipment, software and service contracts, including the $35 billion Air Force Air Tanker procurement. 

Mr. O’Donnell has been named one of the leading government contract lawyers in the country in every edition of Chambers USA, America's Leading Lawyers for Business, since 2005. He is also included in the annual list of “Best Lawyers in America” and is recognized as one of California’s outstanding construction lawyers in Who’s Who Legal: California 2009. He has served as chairman and vice-chairman of several committees of the ABA Public Contract Law Section as well as on the Executive Committee of the California State Bar’s Public Law Section. Mr. O’Donnell has written and lectured on a wide variety of government contract and construction issues. He is presently on the Advisory Committee for The Government Contractor and the Associated General Contractors of California Legal Advisory Committee and is a member of the ABA Forum Committee on the Construction Industry. He is a former president and continues to serve on the Board of Directors of the Bay Area Video Coalition and is on the Board of the San Francisco Sinfonietta. He also was Co-Chair of the Lawyers Committee for Civil Rights of the Bay Area

[JT]

January 25, 2011 in About this Blog, Commentary | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten from the Social Science Research Network

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

November 25, 2010 to January 24, 2011


Rank

DownloadsPaper Title
1 660 Mortgage Servicing 
Adam J. LevitinTara Twomey
Georgetown University - Law Center, National Consumer Law Center, 
Date posted to database: December 18, 2010 
Last Revised: January 20, 2011
2 378 Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey 
Symeon C. Symeonides
Willamette University - College of Law, 
Date posted to database: January 11, 2011 
Last Revised: January 11, 2011
3 169 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
4 150 Regulating Systemic Risk: Towards an Analytical Framework 
Iman AnabtawiSteven L. Schwarcz
University of California, Los Angeles (UCLA) - School of Law, Duke University - School of Law, 
Date posted to database: January 6, 2011 
Last Revised: January 7, 2011
5 116 The Uncorporation and the Unraveling of 'Nexus of Contracts' Theory 
Grant M. HaydenMatthew T. Bodie
Hofstra University - School of Law, Saint Louis University School of Law, 
Date posted to database: December 10, 2010 
Last Revised: December 15, 2010
6 115 Does Disclosure Matter? 
Florencia Marotta-Wurgler
New York University (NYU) - School of Law, 
Date posted to database: November 24, 2010 
Last Revised: December 7, 2010
7 107 Pregnant Man?: A Conversation 
Darren RosenblumNoa Ben-AsherMary Anne CaseElizabeth F. EmensBerta E. Hernández-TruyolVivian M. GutierrezLisa Chiyemi IkemotoAngela Onwuachi-WilligJacob Willig-OnwuachiKimberly MutchersonPeter Siegelman,Beth Jones
Pace Law School, Pace University - School of Law, University of Chicago Law School, Columbia Law School, University of Florida Levin College of Law, Unaffiliated Authors - 
affiliation not provided to SSRN, University of California, Davis - School of Law, University of Iowa College of Law, Unaffiliated Authors -affiliation not provided to SSRN, Rutgers School of Law-Camden, University of Connecticut - School of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 17, 2010 
Last Revised: January 5, 2011
8 102 The Role of Dynamic Renegotiation and Asymmetric Information in Financial Contracting 
Michael R. Roberts
University of Pennsylvania - The Wharton School - Finance Department, 
Date posted to database: December 31, 2010 
Last Revised: December 31, 2010
9 93 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
10 92 Avatar Experimentation: Human Subjects Research in Virtual Worlds 
Joshua Fairfield
Washington and Lee University - School of Law, 
Date posted to database: December 2, 2010 
Last Revised: December 15, 2010

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

November 26, 2010 to January 25, 2011

RankDownloadsPaper Title
1 378 Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey 
Symeon C. Symeonides
Willamette University - College of Law, 
Date posted to database: January 11, 2011 
Last Revised: January 11, 2011
2 107 Pregnant Man?: A Conversation 
Darren RosenblumNoa Ben-AsherMary Anne CaseElizabeth F. EmensBerta E. Hernández-TruyolVivian M. GutierrezLisa Chiyemi IkemotoAngela Onwuachi-WilligJacob Willig-OnwuachiKimberly MutchersonPeter Siegelman,Beth Jones
Pace Law School, Pace University - School of Law, University of Chicago Law School, Columbia Law School, University of Florida Levin College of Law, Unaffiliated Authors - 
affiliation not provided to SSRN, University of California, Davis - School of Law, University of Iowa College of Law, Unaffiliated Authors -affiliation not provided to SSRN, Rutgers School of Law-Camden, University of Connecticut - School of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 17, 2010 
Last Revised: January 5, 2011
3 105 The Role of Dynamic Renegotiation and Asymmetric Information in Financial Contracting 
Michael R. Roberts
University of Pennsylvania - The Wharton School - Finance Department, 
Date posted to database: December 31, 2010 
Last Revised: December 31, 2010
4 93 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
5 62 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 49 Contract as Convention 
F. H. Buckley
George Mason University - School of Law, Faculty, 
Date posted to database: January 16, 2011 
Last Revised: January 23, 2011
7 42 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 41 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 34 A Toolbox for European Judges 
Martijn W. Hesselink
University of Amsterdam - Centre for the Study of European Contract Law (CSECL), 
Date posted to database: December 17, 2010 
Last Revised: December 17, 2010
10 30 Arbitration's Suspect Status 
Hiro N. Aragaki
Fordham University - Fordham University Schools of Business, 
Date posted to database: November 29, 2010 
Last Revised: December 28, 2010

[JT]

January 25, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 24, 2011

Match.com Under Fire

Match Match.com faces fraud and breach of contract claims based on the allegation that more than half of the profiles on the site are fake or inactive, to give the impression that there are more fish in the dating sea.  Here’s the story from the Dallas Morning News:

Dallas-based online dating site Match.com is facing a federal lawsuit alleging that more than half of its profiles belong to inactive members or scammers.

The complaint, filed Dec. 30 in U.S. District Court in Dallas, alleges that the company does not remove profiles of customers who cancel subscriptions or vet profiles that may be fake.

The complaint also alleges that Match.com encourages members to renew subscriptions by sending them a message from an inactive or fake profile expressing romantic interest.

Five men and women, none from Texas, are asking for class action status. They accuse the company of breach of contract, breach of implied covenant of good faith and fair dealing, and negligent misrepresentation.

"The claims have no merit and Match.com will defend the lawsuit vigorously," Match.com said in a prepared statement.

Match.com, founded in 1995, is among the top online dating websites. In 2010, the dating site saw an increase in subscriptions and revenue. According to the most recent earnings report for parent company IAC, Match.com brought in $38.1 million and had about 1.82 million paid subscribers.

The plaintiffs are seeking unspecified damages and repayment of subscription fees. A subscription costs $34.99 for one month, $19.99 per month for three months, or $16.99 per month for six months.

The complaint comes at a peak time for the industry, the weeks leading up to Valentine's Day, said Julie Spira, who owns cyberdatingexpert.com and helps clients write profiles for dating sites.

Match.com is no stranger to lawsuits. In 2005, Match.com was sued in California over allegations that the company hired employees to create profiles and entice members to keep their subscriptions going. The case was dropped. Another case, filed in 2009, also was dropped.

But this time will be different, said Jeffrey Norton, lead attorney on the lawsuit and lawyer at New York-based Harwood Feffer LLP.

"We have a strong complaint based on strong investigations," he said.

Norton says that he and others researched and spoke to Match.com subscribers, employees and subcontractors.

Spira said that online dating sites often count all types of members - even those without a paid membership - to make their sites seem more promising.

For example, she said, a member may join for a free weekend or free month but then not sign up for a premium membership - making them unable to see messages from other members or causing a profile to be inactive for months at a time.

"It would be great if the site had some kind of notice that not all members can receive e-mails or if there was a box you could check for only premium, paying members," she said.

"But that might also show the world that it's a few million less members and maybe they don't want to show the world that," she said.

[Meredith R. Miller]

January 24, 2011 in In the News | Permalink | Comments (4) | TrackBack (0)

Keith Olbermann and MSNBC Part Ways

Two years ago, we asked where Keith Olbermann would go if MSNBC did not offer him a juicy contract.  As we put it back in 2008:

No offense to Keith; I enjoy a slightly unhinged political rant as much as anybody, but it's as if MSNBC believed that viewers became hooked on "Countdown" during the election season and will be unable to shake the addiction. I started watching the show occasionally during the last weeks of the campaign and I haven't thought about going back there since election day. $7.5 million a year! That's extraordinary! Where do they think Keith Olbermann will go if they don't pay him more than the $4 million a year they agreed to in February 2007? CNN? Fox News?

Well, it appears we will now get an answer.  As CBS News reports here, Keith Olbermann announced on Friday that he was calling it quits.  Quotemeister Robert Thompson of Syracuse University is quoted as stressing Olbermann's importance to MSNBC's brand, but how much of that brand is a product of Olbermann himself and how much was it the product of, well, branding?  It seems we'll find out.  In any case, Rachel Maddow seems to have taken over as the face of MSNBC some time ago.

Reports say that it is unclear why Olbermann left in the middle of a four-year, $30 million contract, but are the reasons really that unclear?  CBS News raises the question of whether Olbermann's contract included a non-compete clause.  If it did, we would expect that Olbermann negotiated that away before he left MSNBC.

In the meantime, happy trails and thanks for the memories.

 

[JT]

January 24, 2011 in Celebrity Contracts, In the News, Television | Permalink | Comments (0) | TrackBack (0)