Friday, November 2, 2012
Just last week I proclaimed to our inimitable editor D.A. Jeremy Telman that I was renewing my vows to the blog. Since that promise, Hurricane Sandy happened and I am without power and water. So, I have to claim impracticability. I will start posting again shortly.
[Meredith R. Miller]
Wednesday, October 31, 2012
Hein Kotz, Contract law in Europe and the United States: Legal Unification in the Civil Law and Common Law, 27 Tul. Eur. & Civ. L.F. 1 (2012)
William P. Johnson, The Hierarchy that Wasn't There: Elevating "Usage" to Its Rightful Position for Contracts Governed by the CISG, 32 Nw. J. Int'l L. & Bus. 263 (2012)
Daniel Markovits and Alan Schwartz, The Expectation Remedy Revisited, 98 Va. L. Rev. 1093 (2012)
Preston M. Torbert, Contract Drafting: a Socratic Manifesto, 14 Scribes J. Legal Writing 93 (2011-2012)
Tuesday, October 30, 2012
Monday, October 29, 2012
At right is a drawing of the Ballantine brewery in Newark as it appeared in the late 19th century. Founded in 1840, the brewery grew to be one of the largest in the United States by the end of the 19th century. Recognizing that nobody without a gut full of beer could enjoy the American passtime, Ballantine cleverly partnered with the New York Yankees. Through its partnership of that storied team, Ballantine grew to become the third most popular beer in the United States.
Sadly, in the 1960s the brand declined. As Judge Friendly recounts in his opinion for the Second Circuit in Bloor v. Falstaff Brewing Corp., in 1969, the brewery suffered the indignity of acquisition by a real estate conglomerate with no experience in brewing. After bleeding money for a few years, the conglomerate sold Ballantine to Falstaff Brewing Corporation in return for some cash and a promise to use "its best efforts to promote and maintain a high volume of sales" of Ballantine beer. If it ceased to sell the beer entirely, the contract provided for liquidated damages.
Falstaff chose not to promote Ballantine beer. It's marketing strategy was summarized by Falsataff's controlling shareholder as follows: We sell beer, F.D.B. the brewery. You come and get it. That didn't work very well for Ballantine, and its volume of sales plummeted. The trustee of what remained of Ballantine sued alleging breach of the best efforst clause and seeking liquidated damages. Judge Friendly's conclusion is summarized below:
Bloor v. Falstaff Brewing Corp. Limerick
Falstaff had to adhere
To its deal to sell Ballantine beer.
Volume’s not killer
When there’s Bud, Coors and Miller.
Still, its efforts must be sincere.
Chris Claydon, the Managing Director of a New Zealand based company, Profile Technology, Ltd. (Profile Tech.), has brought suit against the social networking giant, Facebook, alleging breach of contract, interference with business relationships, defamation, and unlawful, unfair and fraudulent business practices. Claydon’s Complaint alleges that Profile Tech. and Facebook entered into an agreement in 2008 allowing Profile Tech. to acquire Facebook data by automated “crawling,” for the purpose of creating a service called Profile Engine. Profile Engine became the world’s first search engine dedicated to Facebook. However, according to the Complaint, without notice, Facebook cut off the access Profile Tech. needed to continue its venture shorty after October 13, and began a “malicious” defamation campaign, thereby damaging Profile Tech.’s business and reputation.
Claydon further alleges that Facebook interfered with access to its other applications, independent of Profile Engine (IQ Test, Survey, Polling, etc…) Facebook’s actions were allegedly purposeful and malicious and as such, require punitive damages in addition to compensation for lost profits and defamation. In addition, Claydon requested an injunction to prevent Facebook from any further defamation it is allegedly employing against Profile Tech.
Claydon states that Facebook breached the implied duties found in every contract: to deal fairly and in good faith, and refrain from doing anything that would have an ill effect on, or injure the rights of the other party’s receiving the fruits of the contract.
[Christina Phillips & JT]