Thursday, June 7, 2012
Spacenews.com reports that satellite fleet operator MEASAT Satellite Systems of Malaysia (MEASAT) is suing fleet operator Intelsat Corporation (Intelsat) for at least $29 million in a U.S. District Court, alleging breach of contract and collusion in Intelsat’s handling of the launch of a Measat satellite in 2009.
The lawsuit, filed on April 27, 2012, in the United States District Court, Central District of California, is really two lawsuits in one. MEASAT is after Intelsat for breach of contract in connection with two different planned launches of the same MEASAT sattelite. MEASAT contends that the parties entered in to an agreement on March 9, 2006, in which MEASAT agreed to pay over $40 million, and Intelsat agreed to launch MEASAT's satellite between November 1, 2007 and Janury 29, 2008. For reasons that are unclear from the complaint, the parties agreed to delay the launch until August 2008.
The scheduled launch on August 21, 2008, was allegedly delayed due to Intelsat's repeated mishandling of the satellite -- first by hitting it with a crane and then by dropping it while it was being loaded onto a cargo plane. In order to secure a second launch date, MEASAT alleges that it had to pay additional fees and also agree to waive any claims associated with the aforementioned breaches and/or negligence on Intelsat's part. MEASAT alleges that the delays caused by Intelsat's mishandling of its satellite it "was fast losing millions of dollars and valuable good will" and was "teetering on financial disaster."
The parties agreed to a June 2009 launch date, but Intelsat contniued to seek additional compensation, now reducing its demand to $7.5 million. Intelsat also allegedly demanded that MEASAT sign a release, abandoning all claims associated with the earlier launch date and also threatened to use the launch to send up one of its own satellites instead of MEASAT's satellite, if its demands were not met. At that point, it would have cost MEASAT between $80 and $90 million to negotiate an alternative launch. As MEASAT would not have survived had it chosen to do so, it capitulated to Intelsat's demands. The MEASAT Satellite was launched on June 21, 2009, over ten months from the previously scheduled launch date and eighteen to twenty months from the first promised launch period.
MEASAT now alleges that Intelsat conspired with other entities to "facilitate the coercive and wrongful conduct" alleged in the complaint. MEASAT is claiming that Intelsat breached its contract w/ MEASAT by demanding payments for launch in addition to the agreed-upon $40 million fee and through failures to exercise care that resulted in dealys in the launch.
In addition, MEASAT has alleged claims for economic duress, unjust enrichment, breach of the convent of good faith and fair dealing, and a violation of California Business and Professions Code §17200. MEASAT seeks damages in the amount of $29,000,000 as well as punitive damages and attorneys fees.
[Christina Phillips and JT]
Wednesday, June 6, 2012
Mark A. Lemley, Contracting around Liability Rules. 100 Cal. L. Rev. 463 (2012).
Barak Richman and Dennis Schmeltzer. When Money Grew on Rrees: Lucy v. Zehmer and Contracting in a Boom Market. 61 Duke L.J. 1511(2012)
Dean B. Thomson, and James R. Thomson, The Business Risk Doctrine in Minnesota: the Emperor Has No Clothes. 35 Hamline L. Rev. 43 (2012)
Tuesday, June 5, 2012
As reported in prnewswire.com, an arbitrator awarded Fox Insurance Company (“Fox”) over $3.3 million, in an arbitration Fox and ProCare, its former pharmacy benefit manager. On May 21, 2012, the U.S. District Court for the Northern District of Georgia, Atlanta Division, issued its decision confirming the arbitration award.
ProCare is a pharmacy benefit manager (“PBM”) that provides such services to over 290 insurance companies, including Fox. Pursuant to a client services agreement (“the Agreement”), ProCare acts as Fox’s attorney-in-fact by making payments to pharmacies. The Agreement provides: Fox “shall have the right to request that ProCare conduct an audit of a specific participating Pharmacy Provider if it believes such pharmacy is not accurately administering Client’s benefit plans or the terms of this Agreement”. “Any identified overpayments to a participating Pharmacy Provider relating to Fox’s Covered Persons, shall be returned to Fox by ProCare minus any administrative fees associated with this service”. Such a refund “may be accomplished ... through application of a credit against future claim invoices” Also included in the Agreement was a provision stipulating that any controversy related to the Agreement or breach thereof was to be settled by binding arbitration governed by the commercial rules of the American Arbitration Association.
In May 2010 ProCare initiated an arbitration proceeding seeking to recover money allegedly owed by Fox. Fox filed an answer and counterclaim, and requested an audit, as premitted under the Agreement. The audit authorized by the arbitration panel identified $1,949,063.68 associated with approximately 165 pharmacies that was subject to reclaim based on waste or abuse, and awarded Fox $1,658,739.17 in additional damages. The panel ordered ProCare to collect the $1,949,063.68 identified in the audit and return that sum to Fox.
While ProCare did not contest the damage award, it filed a motion to vacate the arbitration award, contending the $1.9 million sum constituted an award against the non-party pharmacies and that the arbitration panel thereby overstepping its authority. The District Court rejected this challenge. To the extent that the non-party pharmacies believe they are entitled to any portion of the $1.9 million, they may seek those funds from Fox, ProCare, or both. The Agreement allowed for the collection of overpayments through application of a credit against future invoices, and this is exactly what the arbitration panel ordered. Although ProCare’s obligations under the Agreement may conflict with its obligations under contracts with certain pharmacies, that conflict does not mean that the arbitration panel exceeded its authority. Indeed, the Agreement states that ProCare must return overpayments without mention of ProCare’s contracts with participating pharmacies.
The District Court also rejected ProCare's argument that the arbitration panel improperly ordered a setoff against funds that ProCare held in trust, in violation of Georgia law.The District Court noted taht Fox’s claim to funds held by ProCare arises from the Agreement, not from a Georgia statute. In any case, even if the arbitrator incorrectly interpreted Georgia law with respect to setoff, a “panel’s incorrect legal conclusion is not grounds for vacating or modifying the award.”
Thus, ProCare’s Motion to Vacate the Arbitration Award was denied.
[Chistina Phillips & JT]
In an uprecedented development our second Top Ten list is only a Top Eight. Apparently, there is a shortage of fresh contracts scholarship showing up on SSRN this summer. Those of you out there eager to break into the big time with a top-ten hit, this is the time to post.
|1||561||The Perils of Social Reading
Neil M. Richards,
Washington University in Saint Louis - School of Law
|2||162||The Common European Sales Law (CESL) Beyond Party Choice
Jan M. Smits,
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI)
|3||143||A Minor Problem with Arbitration: A Proposal for Arbitration Agreements Contained in Employment Contracts of Minors
Matthew Miller-Novak, Richard A. Bales,
Unaffiliated Authors - affiliation not provided to SSRN, Northern Kentucky University - Salmon P. Chase College of Law
Stephen J. Lubben,
Seton Hall University - School of Law
|5||128||The Private Equity Contract
Steven M. Davidoff,
Ohio State University (OSU) - Michael E. Moritz College of Law
|6||101||The Draft Common Frame of Reference (DCFR) - The Most Interesting Development in Contract Law Since the Code Civil and the BGB
Indiana University Robert H. McKinney School of Law
|7||101||'Offer to Sell' as a Policy Tool
Campbell University Law School
|8||80||Conceptualizing Contractual Interpretation
Alan Schwartz, Joel Watson,
Yale Law School, University of California, San Diego (UCSD) - Department of Economics
|9||74||Legal Epistemology in the Restatement (3d) of Restitution and Unjust Enrichment
McGill University - Faculty of Law - Quebec Research Centre of Private and Comparative Law
|10||67||A Framework for Analyzing Financial Market Transformation
Steven L. Schwarcz,
Duke University - School of Law
Monday, June 4, 2012
This article in the Huffington Post provides some tips on how to get out of a contract without paying fees. Tip #1? Read the fine print. Speaking of fees, it looks like it'll take less digging to uncover the fees that are chipping away at your hard earned savings in your 401K plan.
Council 31 of the American Federation of State, County and Municipal Employees, AFL-CIO (the Union) represents 40,000 employees in the state of Illinois. It agreed to certain cost-saving measures, including deferred wage increases, in order to help Illinois address significant budget pressures. When Illinois did not emerge from its financial woes, it instituted a wage freeze, repudiating the earlier deal.
The Union brought suit, citing inter alia the Contracts Clause, and seeking an injunction forcing the state to pay the wage increases as they came due. Illinois brought a motion to dismiss, which the District Court granted. In Council 31 v. Quinn, the Seventh Circuit affirmed.
The case is procedurally complex, especially since the parties proceeded with arbitration, in which the Union prevailed in part, and that ruling is subject to an on-going appeal in the state courts. Meanwhile, the 7th Circuit addressed only constitutional claims brought pursuant to the Contracts Cluase and the Equal Protection Clause against Illinois Governor Quinn and from the State's Department of Central Management Services Director Malcolm Weems, both in their offiical capacities.
Although the Union characterized its claims as seeking only injunctive and declaratory relief, the true aim was to get the state to make expenditures from its treasury. As such, not withstanding Ex parte Young, the Eleventh Amendment barred the Union's Contracts Clause claims against the defendants.
Even if there were no Eleventh Amendment bar to the suit, the Court also found that the Union could not state a claim under the Contracts Clause because it alleged only an ordinary breach of contract, which is insufficient to constitute an "impairment" of contractual relations for the purposes of the Contracts Clause. The reasons why this is so have to do with the state's defenses to the Union's claims in the arbitration proceedings and the state court appeals thereof. The basic argument is that appropriate legislative appropriations were a condition precedent to its duties to pay the wage increases. If that argument succeeds, there was no contractual impairment. If it fails, there is no need for a federal court injunction because the Union will have prevailed.
The Court dismissed the Union's Equal Protection claim because the challenged state rules withstand rational basis scrutiny.
Friday, June 1, 2012
Are bedbugs sucking your blood and selling them to black market blood banks while you sleep?!?
Is an alien convict about to escape from his prison on the moon and travel back in time to pave the way for his species to invade the earth?
TUNE IN AT 10 PM TO FIND OUT
But the answer to the local news questions is invariably a disappointed, "probably not, but still . . . think about it." And the answer to our question is: likely yes!
According to this report in the New York Times, and this report from the United States Public Interest Research Group Education Fund (US PIRG), about 900 colleges and universities have formed partnerships with financial institutions. The colleges and universities issue student IDs which also function as debit cards that bear the logos of the partner institutions. The banks thus effectively control the disbursement of student aid.
The partnerships vary in their terms. Some provide large payments to the universities in return for giving the banks exclusive access to students. So, for example, The Ohio State University has apparently brought in $25 million through its contract with Huntington Bank. The money helps, since state legislatures are cutting funding for higher education. In return, Huntington gets to open branches and A.T.M.’s on campus and gains exclusive access to more than 600,000 students, faculty, staff and alumni.
Others permit colleges to save money by hiring banks or other vendors to provide financial services to students. It's not entirely clear from the Times article, but this seems to mean that the universities save themselves administrative costs by having government loan money sent to financial instittuions rather than to the universities. The financial institutions then disburse the money, but until they do, it would seem, they have the benefit of having the money. In addition, according to the US PIRG report, banks and financial firms have “an unprecedented opportunity to market add-on products — bank accounts, A.T.M./debit cards and even loans and credit cards — to students with virtually no competition,” Students may also have to pay ATM fees when they withdraw their loan money. US PIRG characterizes the debits cards as wolves in sheep's clothing because the student do not realize that they are paying fees to a bank when they access their loan money.
The report highlights one financial institution, Higher One, which provides services on over 500 campuses. But the Times quotes one of Higher One's co-founders, who points out that the alternative to Higher One's services is not some magical free world in which there would somehow be no expenses involved in the disbursement of student loan funds.
Still, all of this seems to be a clever work-around to evade provisions of the CARD Act that were supposed to crack down on predatory lending practices that targeted students. None of this is illegal, but it replicates the tactics that the banks used to entice students to sign up for credit cards and which the CARD Act was supposed to prevent.