ContractsProf Blog

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

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Wednesday, November 28, 2012

Mo Money Mo Problems: Lawyer Up and Cautiously Wade into that Powerball Office Pool

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]

November 28, 2012 in In the News | Permalink | Comments (0) | TrackBack (0)

New in Print

Tuesday, November 27, 2012

Two and a Half Men Actor May Have Breached Disparagement Clause [If He Has One]

The show Two and a Half Men is no stranger to contracts drama.  Now there is this news story from Entertainment Weekly about the actor who plays the kid on the show:

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]

November 27, 2012 in Celebrity Contracts, In the News, Television | Permalink | Comments (0) | TrackBack (0)

SCOTUS Smacks Down Oklahoma Supreme on Arbitration Law

Supremecourtjustices_2012In 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]

[JT]

November 27, 2012 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

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

RankDownloadsPaper Title
1 244 Libertarianism, Law and Economics, and the Common Law 
Todd J. Zywicki
George Mason University - School of Law, Faculty
2 211 The Cross-Border Freedom of Form Principle Under Reservation: The Role of Articles 12 and 96 CISG in Theory and Practice 
Ulrich G. Schroeter
University of Mannheim - Faculty of Law
3 169 Seduction by Contract: Law, Economics and Psychology in Consumer Markets - Introduction 
Oren Bar-Gill
New York University (NYU) - School of Law
4 152 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
5 133 CISG and CESL 
Ulrich Magnus
c/o Max Planck Institute for Comparative and International Private Law
6 104 Lewellyn Slept Here: A Short History of Sticky Contracts and Feudalism 
Cheryl B. PrestonEli McCann
Brigham Young University - J. Reuben Clark Law School, Unaffiliated Authors - affiliation not provided to SSRN
7 77 An EU Law for Cross-Border Sales Only – Its Meaning and Implications in Open Markets 
Jürgen Basedow
Max Planck Institute for Comparative and International Private Law
8 76 Commercial Sales: The Common European Sales Law Compared to the Vienna Sales Convention 
Marco LoosHarriët Schelhaas
University of Amsterdam - Centre for the Study of European Contract Law (CSECL), Unaffiliated Authors - affiliation not provided to SSRN
9 75 Markets as a Moral Foundation for Contract Law 
Nathan B. Oman
William & Mary Law School
10 67 In Defense of Commercial Capitalism: Lessius, Partnerships and the Contractus Trinus 
Wim Decock
Max-Planck-Institute for European Legal History,

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

September 27, 2012 to November 26, 2012

RankDownloadsPaper Title
1 211 The Cross-Border Freedom of Form Principle Under Reservation: The Role of Articles 12 and 96 CISG in Theory and Practice 
Ulrich G. Schroeter
University of Mannheim - Faculty of Law,
2 152 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
3 133 CISG and CESL 
Ulrich Magnus
c/o Max Planck Institute for Comparative and International Private Law
4 126 Harmonization of Private International Law in Europe and Application of Foreign Law: The Madrid Principles of 2010 
Carlos Esplugues
University of Valencia - Faculty of Law
5 104 Lewellyn Slept Here: A Short History of Sticky Contracts and Feudalism 
Cheryl B. PrestonEli McCann
Brigham Young University - J. Reuben Clark Law School, Unaffiliated Authors - affiliation not provided to SSRN
6 77 An EU Law for Cross-Border Sales Only – Its Meaning and Implications in Open Markets 
Jürgen Basedow
Max Planck Institute for Comparative and International Private Law
7 76 Commercial Sales: The Common European Sales Law Compared to the Vienna Sales Convention 
Marco LoosHarriët Schelhaas
University of Amsterdam - Centre for the Study of European Contract Law (CSECL), Unaffiliated Authors - affiliation not provided to SSRN
8 75 Markets as a Moral Foundation for Contract Law 
Nathan B. Oman
William & Mary Law School
9 67 In Defense of Commercial Capitalism: Lessius, Partnerships and the Contractus Trinus 
Wim Decock
Max-Planck-Institute for European Legal History
10 67 Contract Theory and the Failures of Public-Private Contracting 
Wendy Netter EpsteinWendy Netter Epstein
Illinois Institute of Technology - Chicago-Kent College of Law, Kirkland & Ellis

[JT]

November 27, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 26, 2012

Reminder: 8th International Conference on Contracts Upcoming in Forth Worth

Details can be found here.

Fort_Worth_c1920_loc_6a14633

 
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 fsnyder@law.txwes.edu.

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.  

[JT]

November 26, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 21, 2012

New in Print

Tuesday, November 20, 2012

Jersey Shore Star Sues Devotion Vodka for Breach of Contract

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]

November 20, 2012 in In the News | Permalink | Comments (0) | TrackBack (0)

Eleventh Circuit Affirms District Court's Determination on Jurisdiction to Challenge to FCC Rule

11thCircuitSealMartha 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.



November 20, 2012 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNRECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 
September 21, 2012 to November 20, 2012

RankDownloadsPaper Title
1 232 Libertarianism, Law and Economics, and the Common Law 
Todd J. Zywicki
George Mason University - School of Law, Faculty
2 175 The Cross-Border Freedom of Form Principle Under Reservation: The Role of Articles 12 and 96 CISG in Theory and Practice 
Ulrich G. Schroeter
University of Mannheim - Faculty of Law
3 164 Seduction by Contract: Law, Economics and Psychology in Consumer Markets - Introduction 
Oren Bar-Gill
New York University (NYU) - School of Law
4 154 Another Step Towards Harmonization in EU Contract Law: The Common European Sales Law 
Maud PiersCedric Vanleenhove
Ghent University, Ghent University
5 148 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
6 127 Contract in My Soup: Chinese Contract Formation and Ritual Eating and Drunkenness 
Mary Szto
Hamline University School of Law
7 123 CISG and CESL 
Ulrich Magnus
c/o Max Planck Institute for Comparative and International Private Law
8 99 Lewellyn Slept Here: A Short History of Sticky Contracts and Feudalism 
Cheryl B. PrestonEli McCann
Brigham Young University - J. Reuben Clark Law School, Unaffiliated Authors - affiliation not provided to SSRN
9 81 Misrepresentation: The Restatement's Second Mistake 
Stephanie R. Hoffer
Ohio State University (OSU) - Michael E. Moritz College of Law
10 74 An EU Law for Cross-Border Sales Only – Its Meaning and Implications in Open Markets 
Jürgen Basedow
Max Planck Institute for Comparative and International Private Law

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

September 21, 2012 to November 20, 2012

RankDownloadsPaper Title
1 175 The Cross-Border Freedom of Form Principle Under Reservation: The Role of Articles 12 and 96 CISG in Theory and Practice 
Ulrich G. Schroeter
University of Mannheim - Faculty of Law
2 153 Another Step Towards Harmonization in EU Contract Law: The Common European Sales Law 
Maud PiersCedric Vanleenhove
Ghent University, Ghent University
3 148 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
4 126 Harmonization of Private International Law in Europe and Application of Foreign Law: The Madrid Principles of 2010 
Carlos Esplugues
University of Valencia - Faculty of Law
5 123 CISG and CESL 
Ulrich Magnus
c/o Max Planck Institute for Comparative and International Private Law
6 99 Lewellyn Slept Here: A Short History of Sticky Contracts and Feudalism 
Cheryl B. PrestonEli McCann
Brigham Young University - J. Reuben Clark Law School, Unaffiliated Authors - affiliation not provided to SSRN
7 80 Misrepresentation: The Restatement's Second Mistake 
Stephanie R. Hoffer
Ohio State University (OSU) - Michael E. Moritz College of Law
8 74 An EU Law for Cross-Border Sales Only – Its Meaning and Implications in Open Markets 
Jürgen Basedow
Max Planck Institute for Comparative and International Private Law
9 72 Markets as a Moral Foundation for Contract Law 
Nathan B. Oman
William & Mary Law School
10 71 Lexis Nexus Complexus: Comparative Contract Law and International Accounting Collide in the IASB-FASB Revenue Recognition Exposure Draft 
Kurt S. SchulzkeGerlinde Berger-WalliserPier Luigi Marchini
Kennesaw State University, University of Connecticut, University of Parma - Department of Economics
[JT]

November 20, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 19, 2012

London Court Finds Breach of K in Terminating Man for Facebook Post Opposing Gay Marriage in Church

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.  

Rainbow_flag_and_blue_skiesThe 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.”

[JT]

November 19, 2012 in In the News, Recent Cases, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, November 16, 2012

Seinfeldian Unilateral Contract?

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]

November 16, 2012 in Television | Permalink | TrackBack (0)

Thursday, November 15, 2012

Court Grants Certiorari in American Express Co. v. Italian Colors Restaurant

[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?]

HortonJeremy 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]

November 15, 2012 in Contract Profs, Recent Cases, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Contract as Public Law Conference at Emory

 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)

FinemanThe 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?

  Emory_quadWorkshop Details: 

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. 

 Workshop Contacts: 

Martha Albertson Fineman, Emory University School of Law, mfineman@law.emory.edu 

Hila Keren, Southwestern Law School, hkeren@swlaw.edu 

Teemu Ruskola, Emory University School of Law, teemu.ruskola@emory.edu 

Submissions Procedure: 

Email a proposal as a Word or PDF document by 11/30/2012 to Emily Hlavaty at: emily.hlavaty@emory.edu 

**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.

[JT]

November 15, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 14, 2012

Tweet This: Social Media Guarantees

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]

November 14, 2012 in Celebrity Contracts, In the News | Permalink | Comments (0) | TrackBack (0)

Closing in on 1 Million!!!

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:

Crowd
You people, you are the real heroes!

Thanks for visiting.

[JT]

November 14, 2012 in About this Blog | Permalink | TrackBack (0)

New in Print

Pile of Books
Gregory M. Duhl, International Sale of Goods. 67 Bus. Law. 1337 (2012). 

Paula A. Franzese, A Short and Happy Guide to the Law of Sales (West, 2012)

Kouslaa Tunee Kessler-Mata, Empowerment through Incorporation? The Trouble with Agreement Making and Tribal Sovereignty, 47 Tulsa L. Rev. 599 (2012)

Jennifer S. Martin, Sales. 67 Bus. Law. 1227 (2012)

Ann Morales Olazabal, Robert W. Emerson, Karen D. Turner and Rene Sacasas, Survey. Global Sales Law: An Analysis of Recent CISG Precedents in U.S. Courts 2004-2012, 67 Bus. Law. 1351 (2012)

Paul Spruhan, Standard Clauses in State-Tribal Agreements: The Navajo Nation Experience, 47 Tulsa L. Rev. 503 (2012)

[JT]

November 14, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Tuesday, November 13, 2012

Villanova University School of Law to Host Symposium on the CISG

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:

  • Vls_logoYesim 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

Villanova 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]

November 13, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

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

September 13, 2012 to November 12, 2012

RankDownloadsPaper Title
1 245 Queues in Law 
Ronen PerryTal Zarsky
University of Haifa - Faculty of Law, University of Haifa - Faculty of Law
2 156 Seduction by Contract: Law, Economics and Psychology in Consumer Markets - Introduction 
Oren Bar-Gill
New York University (NYU) - School of Law
3 140 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
4 139 Another Step Towards Harmonization in EU Contract Law: The Common European Sales Law 
Maud PiersCedric Vanleenhove
Ghent University, Ghent University
5 114 The Cross-Border Freedom of Form Principle Under Reservation: The Role of Articles 12 and 96 CISG in Theory and Practice 
Ulrich G. Schroeter
University of Mannheim - Faculty of Law
6 105 Contract in My Soup: Chinese Contract Formation and Ritual Eating and Drunkenness 
Mary Szto
Hamline University School of Law
7 99 Intellectual Property and Agriculture: The Case on Soybeans and Monsanto 
Marcelo Dias VarellaMarcelo Dias Varella
University of California, Berkeley - School of Law, University Center of Brasilia
8 83 Lewellyn Slept Here: A Short History of Sticky Contracts and Feudalism 
Cheryl B. PrestonEli McCann
Brigham Young University - J. Reuben Clark Law School, Unaffiliated Authors - affiliation not provided to SSRN
9 79 CISG and CESL 
Ulrich Magnus
c/o Max Planck Institute for Comparative and International Private Law
10 71 Dodd-Frank, Securitization, and the Subprime Mortgage Crisis 
Stephen Hoffman
University of Arizona - James E. Rogers College of Law

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

September 13, 2012 to November 12, 2012

RankDownloadsPaper Title
1 140 Express Contract Terms and the Implied Contractual Covenant of Delaware Law 
Mohsen Manesh
University of Oregon School of Law
2 139 Another Step Towards Harmonization in EU Contract Law: The Common European Sales Law 
Maud PiersCedric Vanleenhove
Ghent University, Ghent University
3 117 Harmonization of Private International Law in Europe and Application of Foreign Law: The Madrid Principles of 2010 
Carlos Esplugues
University of Valencia - Faculty of Law
4 114 The Cross-Border Freedom of Form Principle Under Reservation: The Role of Articles 12 and 96 CISG in Theory and Practice 
Ulrich G. Schroeter
University of Mannheim - Faculty of Law
5 83 Lewellyn Slept Here: A Short History of Sticky Contracts and Feudalism 
Cheryl B. PrestonEli McCann
Brigham Young University - J. Reuben Clark Law School, Unaffiliated Authors - affiliation not provided to SSRN
6 79 CISG and CESL 
Ulrich Magnus
c/o Max Planck Institute for Comparative and International Private Law,
7 68 Lexis Nexus Complexus: Comparative Contract Law and International Accounting Collide in the IASB-FASB Revenue Recognition Exposure Draft 
Kurt S. SchulzkeGerlinde Berger-WalliserPier Luigi Marchini
Kennesaw State University, University of Connecticut, University of Parma - Department of Economics
8 66 Misrepresentation: The Restatement's Second Mistake 
Stephanie R. Hoffer
Ohio State University (OSU) - Michael E. Moritz College of Law, 
Date posted to database: September 18, 2012 
Last Revised: September 18, 2012
9 62 The Subprime Mortgage Crisis and Economic Checks and Balances 
Chunlin Leonhard
Loyola University New Orleans College of Law
10 60

In Defense of Commercial Capitalism: Lessius, Partnerships and the Contractus Trinus 
Wim Decock
Max-Planck-Institute for European Legal History


[JT]

November 13, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 12, 2012

Post-Election Puzzler

 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.

[JT]

November 12, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)