Wednesday, November 28, 2012
You may have heard that the Powerball payoff is now at a $500+ million record. There are a few news stories about being careful of what you wish for. (Note to next winner(s): use some of your winnings to hire someone to help you through that oh-so-troubling transition to having so much cash you don't know what to do with it. And don't forget that you read that advice here).
As bad as winning tons of money can be, one USA Today article advises that you should have the foresight to lawyer up before you even win anything. The article warns to be "beware of the sharks swimming in your office lottery pool." Here's some of the advice:
But if you join an office lottery pool, you may want to consult a lawyer first. Some workers who had thought they struck it rich have wound up in bitter litigation over who was really in the pool and who wasn't.
Lawsuits involving lottery pool winnings have been common enough to create a new set of case law, said Russ Weaver, a University of Louisville law professor. A cursory Google search shows some "Lotto lawyers" across the country who specialize in such disputes.
"Be very careful in advance," Weaver advised. "One thing you don't want to do is end up in litigation. Attorneys will eat up quite a bit of your winnings."
Weaver's advice for people who want to join workplace lottery pools: Make photocopies of the group lottery tickets and distribute them to members before the drawing so there's clear proof which tickets belong to the group and which belong to individuals.
Weaver said you need to be able to show, "Did you make the decision before or after the numbers came out?"
Just this March, a judge ordered Americo Lopes of New Jersey to share a $38.5 million jackpot with his lottery pool despite Lopes' claim that he bought the ticket on his own.
And after a March 30 drawing for a nationwide record-breaking $656 million Mega Millions jackpot, a lottery pool scandal erupted when Mirlande Wilson of Maryland came forward to claim the prize. Members of the lottery pool she participated in at a Baltimore McDonald's where she worked said they were entitled to part of the winnings, but Wilson claimed she bought the ticket on her own.
She later said she lost the ticket, and another group came forward with a winning ticket. Wilson's former co-workers sued her in October, claiming she secretly gave the lottery ticket to the second, smaller group so she would not have to split the money with as many people.
Apparently not all office pool stories end in litigation, which is good for the participants/employees. Probably leaves the boss unhappy- a whole lot of new employees to hire.
[Meredith R. Miller]
Tuesday, November 27, 2012
Angus T. Jones could be in breach of contract for making a shocking declaration via You Tube today that Two and a Half Men is “filth” and that viewers should stop watching, some industry experts say.
Most actors’ deals typically include disparagement clauses that prohibit them from making negative statements about their show in public, but it’s rare for any studio to enforce such a codicil because what can be considered disparagement is so subjective and, as one high-powered source says, “What moron would stab the show that pays him?” Jones, as well as his costars Ashton Kutcher and Jon Cryer, renewed his contract in May for Men‘s current season. He’s earning a reported $300,000 per episode.
Warner Bros. TV would not comment on whether Jones’ deal includes such a boilerplate clause. And even if it did, it seems unlikely WBTV would act on it considering Jones is only 19 and also plays an integral role on the show, which is currently ranked as TV’s third most-watched comedy. Asks an exec at a competing studio, “What are they going to do, fire him?”
[Meredith R. Miller]
In Nitro-Lift Technologies L.L.C. v. Howard, the U.S. Supreme Court granted certiorari, vacated and remanded a case that came to it from the Oklahoma Supreme Court. The first sentence of the Supreme Court's per curiam decision says it all:
State courts rather than federal courts are most frequently called upon to apply the Federal Arbitration Act(FAA), 9 U. S. C. §1 et seq., including the Act’s nationalpolicy favoring arbitration. It is a matter of great importance, therefore, that state supreme courts adhere to a correct interpretation of the legislation. Here, the Oklahoma Supreme Court failed to do so. By declaring the noncompetition agreements in two employment contractsnull and void, rather than leaving that determination tothe arbitrator in the first instance, the state court ignored a basic tenet of the Act’s substantive arbitration law. The decision must be vacated.
Although the trial court had dismissed Respondents' challenges to the enforceability of their non-competition clauses and would have allowed the arbitrator to decide the merits, the Oklahoma Supreme Court struck the non-competition clauses as violative of public policy. In so doing, SCOTUS point out, the Oklahoma Supremes ignored clear case law providing that "attacks on the validity of the contract, as distinct from attacks on the validity of the arbitration clause itself, are to be resolved 'by the arbitrator in the first instance, not by a federal or state court.'" [citations omitted]
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal
September 27, 2012 to November 26, 2012
Monday, November 26, 2012
Details can be found here.
8th Annual International Conference on Contracts - Calls for Papers
Submissions are cordially invited for the 8th Annual International Conference on Contracts, the largest annual scholarly and educational conference devoted to contracts and related areas of commercial law. Papers and works-in-progress are welcome from those who study contracts from any perspective, whether doctrinal, pedagogical, theoretical, empirical, historical, economic, critical, comparative, or interdisciplinary. Works that take an international or civil law approach are also welcome. Junior scholars are particularly encouraged to participate. Those interested in proposing and organizing panels (3-5 presenters) on specific themes are especially encouraged to do so.
Individual submissions should be made by a brief abstract (one page is sufficient) of the paper or WIP that includes contact information for the author(s). Individual submissions will be placed on panels with like submissions. Panel proposals should include the name and contact information of the moderator or organizer, and a summary of the proposed papers or works in progress. There is no publication commitment for the conference, but organizers of individual panels are free to arrange for publication on their own.
Submissions: Deadline is Monday, Dec. 17, 2012. Proposals submitted earlier will be accepted on a rolling basis. Proposals submitted after the deadline will be accepted on a space-available basis. Submissions should be directed to: Franklin G. Snyder at firstname.lastname@example.org.
Conference: The 8th Annual International Conference on Contracts will be Friday, Feb. 22, 2013 at Texas Wesleyan School of Law, 1515 Commerce Street in Fort Worth.
Registration: Fee for the conference is $249 ($299 after Jan. 1, 2013), which includes a continental breakfast and lunch on both Friday and Saturday, and the conference dinner on Friday night. A website for conference registration and other information will soon be available.
Accommodations: The conference hotel is the Sheraton Fort Worth Hotel and Spa, which has a special rate of $129/night for those who book before Jan. 21, 2013. The Sheraton is across the street from Texas Wesleyan School of Law. The law school and the hotel are less than a half-hour from Dallas-Fort Worth International Airport, and three blocks from the Intermodal Transportation Center. A free shuttle bus links the school and the hotel with popular Fort Worth destinations including Sundance Square and the Historic Stockyards. Commuter rail service makes popular Dallas destinations such as Dealey Plaza, the Sixth Floor Museum, the Deep Ellum musical scene, and the American Airlines Center easily accessible from the hotel and the law school.
Tuesday, November 20, 2012
From TheHollywoodGossip.Com, here's the situation:
Jersey Shore's Mike "The Situation" Sorrentino filed a breach of contract lawsuit against Devotion Vodka, claiming he was cheated out of millions in a business deal gone awry.
In 2010, Situation agreed to endorse the protein-infused vodka (yes, it's apparently a real thing) and claims he has not been paid the money he's owed for doing so.
According to court documents, Mike's camp claims the company was valued at approximately $4 million then, and is now worth $35-50 million thanks to him.
Sitch received the 8 percent ownership stake, as promised, but Devotion failed to add 2 percent to his share on their one-year anniversary, as promised in the deal.
Additionally, he alleges Devotion failed to provide a $400,000 "buy back" option for his shares on their two-year anniversary and failed to supply him with sales reports.
He feels the company keeps looking for excuses to cut him out and not pay him. Sounds like this deal went down faster than the quality of Jersey Shore Season 6.
Sorrentino is suing for his entire 10 percent share in the company (an estimated worth of up to $5 million) and other damages. Devotion has not responded yet.
[Meredith R. Miller]
Martha Self entered into a contract for cell phone service with AT&T in 1995. AT&T subsequently notified her that, beginning in January 1998 she would be subject to a Universal Service Support charge, which consisted of charges under a Federal Communications Commission (FCC) Universal Service Order that AT&T passed on to its customers. Displeased with the new charges, Self filed a putative class action, alleging breach of contract, unjust enrichment and (in the Fifth Amended Complaint) violations of federal statutory law, in Alabama state court,which AT&T removed to federal court.
At that point, the case went dormant for nearly a decade as the federal court system awaited resolution of disputes between the FCC and AT&T. Eventually, in Texas Office of Public Utility Council v. FCC, the Fifth Circuit determined that the FCC Universal Service Fund (USF) inappropriately included fees for intrastate revenues. However, the court's ruling did not call for refunds of payments that carriers had already paid into the USF. Between January 1, 1998 and November 1, 1999, the FCC collected $1.6 billion in USF fees. It ceased collecting such funds after the Texas Office opinion went into effect, but it did not refund any part of the money previously collected and found improper in Texas Office. AT&T petitioned the FCC seeking a refund of that money, and it 2008, the FCC issued a Final Order declining to refund the money, apparently because the carriers had been permitted to pass the costs on to consumers and recovery of those costs was no longer feasible.
The issue before the Eleventh Circuit in Self v. Bell South Mobility was whether the District Court had jursidiction over Self's various claims in light of Texas Office and the 2008 Final Order. The District Court held that it did not, to the extent that Self sought retroactive application of Texas Office -- that is, to the extent that Self sought to recover her portion of fees paid in to the USF in 1998 and 1999. The basis for that decision is 28 U.S.C. § 2342, which grants to the Federal Courts of Appeal exclusive jurisdiction over challenges to FCC final orders. The Eleventh Circuit affirmed the District Court's finding that it lacked urisdiction to review the 2008 Final Order.
Judge Carnes, who authored the opinion for the panel, begins with a Holmesian aphorism:
[W]hen you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath.
Throughout the opinion, Judge Carnes refers to his donkey metaphor. That aspect of the opinion is quite witty. Judge Carnes effectively uses Justice Holmes's remark as an organizational principle to separate the complex procedural background of the case from the rather straightforward legal question presented. Nicely done.
Monday, November 19, 2012
The Independent reports here that Adrian Smith, who was stripped of his managerial post with the Trafford Housing Trust (the Trust), won his breach of contract claim against his employer. London's High Court found that Mr. Smith had not engaged in "gross miconduct" by posting on this Facebook page his view that gay marriages in the church were "an equality too far." However, the High Court awarded Mr. Smith less than £100 on his breach of contract claim, despite the fact that his slaray had been reduced as a result of his demotion from more than £35,000 to £21,000.
The limited damages may have been the only remedy available to Mr. Smith in a court. He could have taken his case to an Employment Tribunal and gotten more substantial damages, but Mr. Smith claims that he did not bring the case for money. He did it for the principle involved. The Trust has apologized to Mr. Smith and claims that it attempted to settle with Mr. Smith for a much higher amount, but Mr. Smith rejected the offer and chose to proceed with his litigation.
The Trust's action against Mr. Smith is somewhat surprising, given that Mr. Smith does not oppose civil marriage for gay partners. He only spoke out against church marriages for gay couples The Independent even quotes a "gay rights campaigner Peter Tatchell" as supporting Mr. Smith:
This is not a particularly homophobic viewpoint, In a democratic society, Adrian has a right to express his point of view, even if it is misguided and wrong.
A spokesperson from Stonewall, an LGB rights charity described the Trust's treatment of Mr. Smith as "a little heavy-handed given that he had temperately expressed his point of view, however disagreeable that point of view might be to many.”
Friday, November 16, 2012
I often am surprised by how many of my current students bring me clips from Seinfeld. Having aired from 1989-1998, the show started when most of my 20-something students were toddlers or, gasp, not even born. I suppose we have syndication to thank for that. This latest clip (embedding disabled) involves a possible unilateral K.
Elaine, the offeror, offers to exchange her bike for a particular type of performance (her own neck-fixing). Kramer potentially accepts via his prompt neck-fixing efforts, which Elaine initially appreciates. Kramer would argue that Elaine's statement was an offer due to the “first person who” language (see Lefkowitz) and the specific requirements Elaine set forth. Elaine could argue (among other things) that there was no offer due to the lack of specificity she used in her so-called offer or the jesting nature of it. Elaine's best argument may be that Kramer did not provide a substantively valid acceptance because he only fixed her neck temporarily—and that was not the performance for which she was bargaining. Kramer then could argue that, via his part performance, he at least has bought himself some time to finish. And so on and so on.
Elaine and Kramer later decided to let their friend Newman resolve their issues through his own type of binding arbitration.
I can't say that I agree with "Judge Newman" on this one. However, I can say that I enjoyed watching it.
[Heidi R. Anderson, h/t to student Phillip Kuye]
Thursday, November 15, 2012
[When we learned that SCOTUS had granted cert. in this case, since David Horton (pictured) has guest blogged for us before, repeatedly, we threatened to hold him hostage until we could complete our science fiction fanstasy movie called Argo unless he could supply a post on the case. Beacuse of the following post, it looks like the film will never be made. Can someone get John Goodman and Alan Arkin out of our blog offices?]
Jeremy has kindly asked me to say a few words about the U.S. Supreme Court’s cert grant in American Express Co. v. Italian Colors Restaurant, No. 12-133, 2012 WL 3096737 (U.S. Nov. 9, 2012) (“Amex”). For years, scholars like Jean Sternlight and Myriam E. Gilles have warned that the Court’s expansive interpretation of the Federal Arbitration Act (“FAA”) will kill off the consumer and employment class action. Amex may drive the final nail into this coffin. In fact, as I’ll explain, the case has the potential to sweep even further.
As many readers of this blog know, Amex comes hot on the heels of AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). Before Concepcion, courts routinely held that class arbitration waivers were unconscionable when applied to numerous, low value, state law claims. The idea was that these small-dollar grievances—which usually invoked state consumer protection statutes—would either be pursued as a class action or not at all. However, Concepcion (arguably) held that section 2 of the FAA preempts this line of authority. (I say “arguably” because Concepcion’s precise holding remains contested, and to plug my forthcoming article, which urges courts to read Concepcion narrowly). Justice Scalia’s majority opinion reasoned that using the unconscionability doctrine to mandate class arbitration—which is slower and more formal than two-party arbitration—violated the FAA’s purposes and objectives. Justice Scalia then dismissed concerns about deterring small claims by declaring that “[s]tates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”
Yet the unconscionability defense wasn’t the only tool that judges employed to invalidate class arbitration waivers. In Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 90 (2000), the Court suggested (but did not hold) that plaintiffs don’t have to arbitrate if they prove that they can’t effectively vindicate their federal statutory rights in the arbitral forum. Specifically, the Court cited high arbitral costs as a reason to strike down an arbitration clause for thwarting federal statutory rights. Since then, many lower courts have applied the vindication of rights doctrine to nullify class arbitration waivers in situations where individual lawsuits are cost-prohibitive. Because Concepcion dealt with state unconscionability principles and section 2 preemption, its effect on the vindication of rights doctrine—a matter of federal common law—is unclear.
Amex falls into this gap. The plaintiffs, a group of merchants and a trade association, claim that American Express violated the Sherman and Clayton Acts. Although the parties’ agreements contain a class arbitration waiver, the plaintiffs claim that the expense of proving their allegations (between several hundred thousand and a million dollars) dwarfs any individual’s potential recovery (a maximum of $38,000, even if trebled under the antitrust statutes). Thus, the Court (minus Justice Sotomayor, who sat on a Second Circuit panel that considered an earlier iteration of the case) will decide whether Concepcion’s rhetoric about the evils of class arbitration extends to negative-value federal statutory claims.
From reading the petition for certiorari—which was supported by amicus briefs from the usual defense-side suspects—it seems that the vindication of rights doctrine itself will come under fire. Of course, it’s unlikely to be the flagship argument. I think American Express et al. will first try to stretch Concepcion as far as possible and then distinguish the plaintiff’s costs (which are mostly expert fees) from other vindication of rights holdings (which tend to involve expenses that wouldn’t normally be incurred in litigation, such as arbitrator’s fees). But at least some of the briefs are already challenging Green Tree as dicta. If the Court takes the bait and throttles back on the vindication of rights doctrine, it would affect the entire sprawling institution of arbitration—not just class actions. Even plaintiffs with righteous, non-class claims under important federal statutes wouldn’t be able to challenge egregious arbitration clauses under federal law. (To be sure, the unconscionability defense might still prune away the worst provisions, but it (1) is notoriously unreliable and (2) also hangs by a thread in the arbitration arena). Thus, Amex could be another large step toward a proposition that the Court seems increasingly willing to embrace: claims must be sent to arbitration even if they can’t or won’t be arbitrated.
[Posted on David's behalf, by JT]
Contract as “Public Law” at the Intersection of Globalization and Privatization
March 1 - 2, 2013
Emory University School of Law, Atlanta, Georgia
Conference Oragnizer, Martha Fineman (pictured)
The process of privatization relies heavily upon contracting in a variety of forms, from outsourcing or the complete transfer of functioning to a private entity to the creation of public-private partnerships. The bargains that are struck are generally justified in terms of efficiency and effectiveness, and work to funnel social assets and obligations into private hands in exchange for a promise that certain goods and services will eventually be returned to the public. These mechanisms complement the more general flow of wealth into private hands as our systems and structures of governance increasingly cede to private ordering. Indeed, states are increasingly acting in service to the private sphere, justifying interventions to protect corporations from the vagaries of the market even as they profess a concern for the public good. At the same time, the negative effects of corporate excesses and mismanagement on the well-being of individuals are deemed to fall within the category of individual or “personal responsibility.”
The expansion of contractual relationships has been the direct result of these processes of privatization. Yet in a ‘post-privatization’ world more individuals are exposed, in more areas of their lives, to contractual ordering and therefore to contract law. What awaits our societies under this alternative legal regime? Is such a regime prepared to handle the masses of people who are not necessarily seasoned market players? And crucially, if and how are such questions taken into account by those considering and crafting concrete privatizations?
While the privatization of public functions may seem unstoppable at this point, we believe it is important to pause and rethink certain private law principles and traditional contract doctrines. Is it possible to incorporate and reflect a vital public interest in the substance and processes of performance of these potentially society-transforming arrangements?
The Workshop begins Friday at 4PM in room 575 of Emory Law School (1301 Clifton Rd, Atlanta, GA), followed by dinner in the Hunter Atrium. Panels continue on Saturday from 9:30 AM to 5PM. Breakfast and lunch will be provided.
Martha Albertson Fineman, Emory University School of Law, email@example.com
Hila Keren, Southwestern Law School, firstname.lastname@example.org
Teemu Ruskola, Emory University School of Law, email@example.com
Email a proposal as a Word or PDF document by 11/30/2012 to Emily Hlavaty at: firstname.lastname@example.org
**Decisions will be made by December 14th 2012 and working paper drafts will be due February 8th 2013 so they can be distributed prior to the Workshop
Topics May Include:
What relationships have been moved from status to contract and what is the justification for doing so? Is this progress?
What are the limitations and strengths of existing contract law, and what existing doctrines might prove fruitful for the imposition of public values into private contract?
What is the role for judges in navigating the space between the public and private spheres in the context of post-privatization?
Might the public be formally included as a third-party beneficiary to a privatization transaction and what would that accomplish, if anything?
Can we develop a body of “public contract” law that would cover privatization situations? What would such a body of law look like and how might it differ from existing private contract law?
Are there tools set out in other bodies of doctrine that might be expanded to supplement certain contracting situations?
What should the duty of good faith mean when it applies to market actors (such as corporations) that replace public institutions?
What are the duties of providers of privatized services? Do and should they have duties to provide services on an equal basis?
Can competition and cost/benefit concerns justify a closure of a branch of a privatized service in a distressed neighborhood or should the private provider maintain access to services at all cost?
Can the discourse regarding contract law as a public law be informed by theories such as feminism, CRT and queer theory, which emphasize the importance of context in legal analysis?
Are there nuances in interpreting or implementing arrangements such as the “labor contract” or the “marriage contract” that are deemed contractual, but have obvious and clear public and social content, that might be imported into general contract principles?
Can the policies and principles underlying suggested reforms of consumer contracts to afford more protection for “weaker” parties in some European countries be transplanted to the USA?
To what extent can the above questions be answered by existing contractual doctrines and what are the obstacles to their use?
Various resources on vulnerability and resilience can be found on the VCH Initiative website.
Wednesday, November 14, 2012
From the ABA Journal:
Movie studios and marketers are recognizing the power of social media with new contract clauses for stars with Twitter and Facebook requirements.
Some studios contracts now require actors to make best efforts to use social media to support their work, an unidentified lawyer tells the New York Times. And companies paying for celebrity endorsements are writing social media guarantees into contracts, Advertising Age reported last year.
"We're starting to hear in negotiations, ‘We'd like to include X number of tweets or Facebook postings,' " Peter Hess, co-head of commercial endorsements for Creative Artists Agency, told Advertising Age.
The Times profiled a new company called theAudience that helps manage the social media presence for celebrities, movie marketers and record labels. According to the story, a star with a huge online following has more leverage when negotiating compensation packages to star in a movie or endorse a product.
[Meredith R. Miller]
If our numbers hold, we will welcome our 1 millionth visitor within the next week. If we could gather all of our visitors in one place, we'd like to think they would look something like this:
Thanks for visiting.
Tuesday, November 13, 2012
On January 18, 2013, the Villanova Law Review will be holding a symposium on "Assessing the CISG and Other International Endeavors to Unify International Contract Law: Has the Time Come for a New Global Initiative to Harmonize and Unify International Trade?" This topic is both timely and important as the United Nations is considering a proposal to study whether it should undertake the drafting a new convention on international sales law. The symposium will feature the leading authorities on the subject of international sales law from across the globe, including the Secretary of the United Nations Commission on International Trade Law (UNCITRAL), The Honorable Renaud Sorieul. Here is a list of the confirmed participants:
- Yesim Atamer, Professor of Law at Bilgi University and Vice Director of Istanbul Bilgi University European Union Institute
- Eric Bergsten, Professor Emeritus at Pace University School of Law, Deputy Director of the Institute of International Commercial Law, and Administrator of the Willem C. Vis International Commercial Arbitration Moot
- Michael Bridge, Cassel Professor of Commercial Law at the London School of Economics
- Sieg Eiselen, Professor of Private Law at University of South Africa
- Harry Flechtner, Professor of International and Domestic Commercial Law at University of Pittsburgh School of Law
- Alejandro Garro, Adjunct Professor of Law and Senior Research Scholar of the Parker School of Foreign and Comparative Law at Columbia University School of Law
- John Y. Gotanda, Villanova University School of Law
- Keith Loken, Assistant Legal Adviser for Private International Law, U.S. State Department
- Alejandro Osuna-González, Founding Partner of Osuna González y Asociados, S.C.
- Jan Ramberg, Professor Emiritus at University of Stockholm, and former Chairman of the CISG Advisory Council
- Dr. Djakhongir Saidov, Professor of International Sales Law at University of Birmingham and Birmingham Law School
- Dr. Ulrich Schroeter, Chair for Private Law, International Corporate Law and European Business Law at the University of Mannheim
- Dr. Ingeborg Schwenzer, Professor of Private and Comparative Law, University of Basel
- Han Shiyuan, Professor of Civil Law at Tsinghua University School of Law and Tsinghua University Director of European and Comparative Law Center
- Hiroo Sono, Professor of Law at Hokkaido University
- Lisa Spagnolo, Assistant Lecturer in Property Law at Monash University
- Renaud Sorieul, Secretary, UNCITRAL and Director of the International Trade Law Division of the United Nations Office of Legal Affairs
- Pilar Perales Viscasillas, Chair of Commercial Law at University Carlos III of Madrid
- Peter Winship, Professor of International and Domestic Commercial Law at SMU Dedman School of Law
The symposium is being sponsored by Villanova University School of Law, the United Nations Commission on International Trade Law, the Committee on International Contract and Commercial Law of the International Section of the New York Bar, the Pennsylvania Bar Association, the Philadelphia Bar Association and Global Philadelphia.
More details are available here.[JT]
Monday, November 12, 2012
Will Farrell posted the following video just days before the election:
Is this an offer? If so, how many millions of voters have taken him up on it? It seems seriously intended, and when I first viewed it, I felt like he was addressing me directly. It could be a joke, I suppose. It's hard to tell. Will Farrell is an actor and his performance here (if that's what it is) is full of nuance.
In NML Capital v. The Republic of Argentina, the U.S. Court of Appeal for the Second Circuit has affirmed the District Court's grant of summary judgment in favor of bondholders of Argentina's defaulted bonds, but it remanded the case to allow the District Court to clarify the mechanics of its injunction requiring that Argentina pay plaintiffs concurrently or inadvance of payments made to other bondholders.
Argentina began issuing debt securities in 1994, and plaintiffs purchsed the Fiscal Agency Agreement ("FAA") bonds between 1998 and 2010. When Argentina defaulted on the FAA bonds in 2001, its President declared a "temporary moratorium" on principal and interest payments on more than $80 billion of its public external debt, including the FAA bonds. That moratorium has been extended, and Argentina has made no principal or interest payments on the FAA bonds. Instead, Argentina initiated exchange offers in both 2005 and 2010, allowing FAA bondholders to exchange their defaulted bonds for new unsecured and unsubordinated external debt in exchange for waivers of their rights and remedies under the FAA.
While Argentina successfully restructured 91% of its foreign debt under the two exchange offers (the Exchange Bonds), plaintiffs declined the exchange. The FAA included a pari passu provision which represented that "[t]he payment obligations of the Republic under the Securities shall at all times rank at lesat equally with all its other present and future unsecured and unsubordinated External Indebtedness debt." Despite the pari passu provision, Argentina made all payments due on the Exchange Bonds.
Alleging violation of the FAA's pari passu provision, plaintiffis sued Argentina, alleging breach of contract and seeking injunctive relief, including specific performance of the pari passu provision, which should prevent Argentina from discriminating against FAA bonds in favor of other unsubordinated, foreign bonds. The District Court first temporarily and then permanently enjoined Argentina from making payments on the Exchange Bonds without making comparable payments on the defaulted debt. Rejecting Argentina's six arguments that the Distrcit Court had erred, the Second Circuit affirmed the injunction, finding that Argentina had violated the pari passu provision by ranking its payment obligations on the defaulted debt below its obligations to the holders of the Exchange Bonds.
Wednesday, November 7, 2012
As reported here by the BloombergBusinessweek, Jay Kramer, former attorney for master of horror, Stephen King, filed suit in New York’s Supreme Court against the author’s agents, Arthur B. Greene and Susan Greene of the Arthur B. Greene Literary Agency, alleging conversion of commissions for work performed, breach of contract, quantum merit/unjust enrichment, and tortious interference.
Kramer was fired on March 30th after having worked for Mr. King for thirty years. He alleges that the defendants have withheld his commission for several projects that he helped broker, including film and television production projects based on King's writings: Secret Window, The Stand, and 1408, among others. Kramer alleges that after he was fired, the Greenes “jointly and severally began diverting the sums owed to [him] to their own account.” Kramer is asking for $1 million in damages.
[Christina Phillips & JT]
Tuesday, November 6, 2012
Sam Lufti, former self-proclaimed manager to Britney Spears (left), filed suit against the “Baby One More Time” pop-star for breach of contract, against her father for assault and battery, and against her mother for defamation. Lutfi alleges he had a multi-year contract with the singer that entitled him to 15% of her income. However, as reported here by the New York Daily News, Lufti was unable to recall ever telling a single person that Spears promised to pay him 15% of her income, nor was he able to produce an adequate written contract. He could only provide a form contract that he downloaded from the internet, which he claimed he had used to make an oral agreement with Ms. Spears.
As reported on Fox News here, the suit was dismissed on Friday as Mr. Lufti was able to make out any of his claims against Ms. Spears or her parents.
[Christina Phillips & JT]