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Valparaiso Univ. Law School

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Friday, May 3, 2013

Teaching Sales: A Quandary

Devil AngelSo, here's an interesting problem I'm facing.  I taught sales for the first time this semester.  I would say I devoted about 2/3 of class time to going over problems.  In order to maximize active learning, I had the students hand in written answers to three of the problems each week, and that homework counted cumulatively for 40% of the grade).  

My students were amazingly diligent, often looking up cases referenced in the questions and reading through the comments to Article 2 of the UCC.  I don't know what all the students thought about the assessment system, but a few have told me that they appreciated the fact that they had no choice but to keep up with the material, even if answering the questions was time-consuming and often frustrating because of either ambiguities in the Code or tensions between the Code and the caselaw.  

But here's the problem.  I wasn't born yesterday.  Now that there has been a group of students that has taken the course with me, their notes, including their answers to the homework problems, will circulate.  I think it is unrealistic to expect students (especially 3Ls) to refrain from consulting such excellent authority when answering the questions.  Unfortunately, the mystic chords of memory will swell when touched not by the better angels of our nature (as represented at left), but by a consultation with last year's students' answers, leading to idle minds with which devils (represented at right) are just as happy to play as with idle hands.

So how can I re-create this year's experience without coming up with my own original questions every time I teach the course?  

Any suggestions -- from any perspective: law prof, student, interested practitioner -- would be most welcome.

[JT]

May 3, 2013 in Teaching | Permalink | Comments (4) | TrackBack (0)

Thursday, May 2, 2013

Ticketmaster and Those Pesky Bots

Last week, I mentioned a California bill addressing the issue of ticket resales and secondary marketplaces.  I think that the primary problem for consumers is not that these secondary marketplaces exist -- being able to resell tickets is generally a good thing for consumers--but that scalpers use bots (automated software programs) to buy up large quantities of tickets which they then resell at jacked up prices.  Fans get angry because shows are quickly "sold out" and they are forced to pay heart stopping prices in the secondary marketplace if they want to see their favorite performer (or get decent seats).  Well, Ticketmaster has had enough and is suing 21 people involved in circumventing its online security system by buying up vast quantities of tickets.  Ticketmaster's weapon of choice here?  The universally reviled yet oh-too-familiar Terms of Use.  Ticketmaster's TOU prohibits the use of bots.  (It's also suing for copyright infringement, among other things).  In fact, back in the early days of the Internet, bots were one of the reasons companies started to use TOU.  The more things change....

[Nancy Kim]

May 2, 2013 in Current Affairs, E-commerce, Miscellaneous, Web/Tech | Permalink | Comments (1) | TrackBack (0)

New in Print

Wednesday, May 1, 2013

Opening at Ave Maria Law

Ave Maria LogoAve Maria School of Law invites applications for multiple faculty positions from entry-level and lateral candidates, pre- or post-tenure.  Ave Maria particularly welcomes applications from candidates with teaching and research interest in Contracts, Business Organizations, Sales, Negotiable Instruments, Secured Transactions, and related commercial subjects.  Applicants should have superior academic credentials; a record, or the promise, of excellence in teaching and legal scholarship; and an interest and commitment in exploring his or her teaching and research interests in an institution that strives to integrate the Catholic intellectual tradition into teaching, scholarship, and service.  Entry-level applicants may demonstrate scholarly promise by publications in scholarly journals or scholarly works in progress.  In the case of any applicant with tenure, a distinguished record of teaching and scholarship is required.  Interested candidates should send their materials to Professor Patrick T. Gillen, current chair of the Appointments Committee.    Applications can be e-mailed to Professor Gillen at [email protected] or can be mailed to his attention at 1025 Commons Circle, Naples, Florida 34119.  Resume review will begin immediately and continue until the positions are filled.

Ave Maria School of Law, providing legal education enriched by the Catholic Faith, seeks employees whose education, experience and beliefs are consistent with its mission.  Ave Maria School of Law is an EQUAL OPPORTUNITY/AFFIRMATIVE ACTION employer that values diversity, including diversity in religious affiliation, and strongly encourages applications from persons of diverse backgrounds willing to support the institutional mission; it requires compliance with all state and federal laws governing employment discrimination. 

[JT]

May 1, 2013 in Help Wanted, Law Schools | Permalink | TrackBack (0)

"Cop Killer" Reward Offer Leads to Breach of Contract Suit

We previously blogged about high-profile reward offers by Donald Trump, Bill Maher, a laptop-seeking music producer, and a Hong Kong businessman. Only one of those (the producer) led to an actual lawsuit.  The latest reward offer in the news involves murder.

In February of this year, the City of Los Angeles and other entities collectively offered a $1 million reward for information regarding Chris Dorner.  Dorner was the former policeman and Navy officer who (allegedly) killed four people, including two policemen. The manhunt for Dorner, labeled the "Cop Killer," reportedly was one of the largest in LA County's history. 

One of the people claiming the reward, Rick Heltebrake, has filed a breach of contract suit in LA Superior Court (the complaint can be obtained here but only for a fee).  Heltebrake is suing the City of Los Angeles, and supporting entities for $1 million and is suing three cities that offered separate $100,000 rewards related to Dorner. Heltebrake was a carjacking victim of Dorner's. After he escaped, Heltebrake called the police and told them where they could find Dorner. Because Dorner was found at the location Heltebrake identified, he is seeking the rewards.  

The contract controversy is one of interpretation.  The rewards reportedly were available for "information leading to the apprehension and capture of" Dorner, for the "identification and apprehension" of Dorner, for the "capture and conviction" of Dorner, and for "information leading to the arrest and conviction of" Dorner (I do not have the complaint so these excerpts are cobbled together from TMZ, Courthouse News Service, ABC and other sources).  Police charged Dorner on February 11, 2013. Heltebrake called police on February 12.  On February 25, after a shootout with police and structure fire, Dorner was found dead from an apparently self-inflicted gunshot wound.

Given the above facts, some of the intepretations questions are: (i) whether the authorities' shootout and recovery of Dorner's body qualifies as "apprehension" or "arrest," (ii) whether the "and" between "identification and arrest" or between "capture and conviction" means that both are required in order to collect, and many, many more. A complicating factor is that the $1 million reward was merely announced on TV; no written record was made.  At least one reward offeror, the City of Riverside, has stated that the lack of a "conviction" means that it won't pay. Although this is a tragic story, I may mention it the next time I teach the Carbolic Smoke Ball case.

If anyone is able to find the complaint for free, please post a link in the comments.

[Heidi R. Anderson]

 

May 1, 2013 in Current Affairs, In the News, Teaching, True Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 30, 2013

Movie Producers Sue Michael Keaton for Breach of Contract

KeatonWe are grateful to the website Lexology.com and to Ellen D. Marcus of Zuckerman Spaeder LLP for this informative and interesting post about this complaint filed in the Northern District of Illinois by Merry Gentlemen, LLC against actor and director, Michael Keaton.  According to the complaint, Keaton breached his contract to act in and direct a film called Merry Gentlemen by failing to deliver it on time and by marketing his own version of the film to the Sundance Film Festival.  The film cratered, grossing only $350,000 at the box office.  Moreover, the producers allege that Keaton's various breaches caused "substantial delays and increased expenses in the completion and release of the movie," thus causing the producers to suffer "substantial financial loss."

Ms. Marcus's post picks it up there, citing Restatement 2d's Section 347 on the elements of expectation damages and illustrating what sort of sums the producers might be looking to recover.  Ms. Marcus has to speculate, as the producers cite no figures beyond those required to meet the amount-in-controversy requirement to get their diversity claim into a federal court.

Whether or not the allegations of the complaint are true, they paint a nice picture of the behind-the-scenes machinanations invovled in getting a film out to the viewing public.  According to the complaint, Keaton produced a "first cut" that all agreed was unsatisfactory.  There then followed both a "Chicago cut," edited by the producers and by Ron Lazzeretti, the screenwriter and the producers' original choice for director, as well as Keaton's second director's cut.  

The producers then shopped the Chicago cut to the Sundance Film Festival, where they were awarded a prime venue.  Keaton then allegedly threatened not to appear at Sundance unless his cut was screened.  That was a dealbreaker for Sundance, so despite already having sunk $4 million in to the film, the producers claim they had no choice but to agree to screen Keaton's second cut at the festival.   They did so through a Settlement and Release (attached to the complaint, but not to the online version) entered into with Keaton, which they now claim was without consideration, despite the recital of consideration in the agreement, and entered into under duress.

Despite all of this, the complaint alleges that the Sundance screening was a success, since the USA Today identified "Merry Gentlemen" as one of ten stand-out films screened that year.  But the producers were unable to capitalize on this success, since Keaton's alleged continuing dereliction of his directorial duties resulted in dealys of the release of the film from October of November 2008 to May 2009.  The producers allege that the film was a Christmas movie (or at least was set around Christmas time), so Keaton's delays caused the movie to premiere during the wrong season.  

The producers allege that Keaton continued to refuse to cooperate with them after Sundance.  Somehow, the movie nonetheless was released to some positive reviews:  

The movie, as released (based upon Keaton’s second cut and numerous changes made by plaintiff), received substantial critical praise. Roger Ebert called the film “original, absorbing and curiously moving in ways that are far from expected.” The New York Times’ Manohla Dargis called it “[a]n austere, nearly perfect character study of two mismatched yet ideally matched souls.” David Letterman said on his Late Night  talk show, “What a tremendous film . . . . I loved it.”

Note to the producers' attorneys: if you've got Roger Ebert and Manohla Dargis in your corner, you don't need Letterman (or The USA Today for that matter).

Nonetheless, the film did not succeed, grossing only $350,000, allegedly because of Keaton's failure to promote it.  Indeed, some of the complaints allegations relating to Keaton's promotion efforts suggest some real issues.  Upon being asked by an interviewer if she had accurately summarized the film's plot, Keaton allegedly responded that he had not seen it for a while.  

We note also that Ms. Marcus's post is cross-posted on Suits by Suits, a legal blog about disputes between companies and their executives, a site to which we may occasionally return for more blog fodder.

[JT]

April 30, 2013 in Celebrity Contracts, Film, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Council

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

February 28, 2013 to April 29, 2013

RankDownloadsPaper Title
1 596 Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations 
Thomas StipanowichJ. Ryan Lamare
Pepperdine University School of Law, Pennsylvania State University - Department of Labor Studies and Employment Relations
2 264 The Fiduciary Obligations of Financial Advisors Under the Law of Agency 
Robert H. Sitkoff
Harvard Law School
3 189 Offer and Acceptance in Modern Contract Law: A Needless Concept 
Shawn J. Bayern
Florida State University - College of Law
4 106 Dude, Where's My Car Title?: The Law, Behavior, and Economics of Title Lending Markets
Kathryn FritzdixonJim HawkinsPaige Marta Skiba
Vanderbilt University, University of Houston Law Center, Vanderbilt Law School
5 100 Transfer of Rights and Obligations Under DCFR and CESL: Interactions with English and German Law 
Hugh BealeWolf-Georg Ringe
Warwick School of Law, Copenhagen Business School, Department of Law
6 92 Revenge of the Clerks: MERS Confronts County Clerk and Qui Tam Lawsuits 
Dustin A. Zacks
King, Nieves & Zacks PLLC
7 90 Tailoring a Consent Inquiry to Fit Individual Employment Contracts 
Lisa J. Bernt
Northeastern University School of Law
8 89 Efficient Breach Is Dead; Long Live Efficient Breach 
Gregory Klass
Georgetown University - Law Center
9 89 Private Equity Firms as Gatekeepers 
Elisabeth de Fontenay
Harvard Law School
10 88 The Property Platform in Anglo-American Law and the Primacy of the Property Concept 
Donald J. Kochan
Chapman University School of Law

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

February 28, 2013 to April 29, 2013

RankDownloadsPaper Title
1 596 Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations 
Thomas StipanowichJ. Ryan Lamare
Pepperdine University School of Law, Pennsylvania State University - Department of Labor Studies and Employment Relations
2 189 Offer and Acceptance in Modern Contract Law: A Needless Concept 
Shawn J. Bayern
Florida State University - College of Law
3 189 One Sided Jurisdiction Clauses - A Casenote on Rothschild 
Pascal AncelGilles Cuniberti
Universite du Luxembourg, University of Luxembourg
4 122 Culpa in Contrahendo in European Private International Law: Another Look at Article 12 of the Rome II Regulation 
Najib Hage-Chahine
Université Paris II - Panthéon-Assas
5 100 Transfer of Rights and Obligations Under DCFR and CESL: Interactions with English and German Law 
Hugh BealeWolf-Georg Ringe
Warwick School of Law, Copenhagen Business School, Department of Law
6 90 Tailoring a Consent Inquiry to Fit Individual Employment Contracts 
Lisa J. Bernt
Northeastern University School of Law
7 89 Efficient Breach Is Dead; Long Live Efficient Breach 
Gregory Klass
Georgetown University - Law Center
8 87 Discretion 
D. Gordon SmithJordan C. Lee
Brigham Young University - J. Reuben Clark Law School , Brigham Young University - J. Reuben Clark Law School
9 86 Preemption Without Borders: The Modern Conflation of Tort and Contract Liabilities 
Max N. Helveston
DePaul University - College of Law
10 83 Promise, Contract, Personal Autonomy, and the Freedom to Change One's Mind 
Dori Kimel
University of Oxford - Faculty of Law

 

[JT]

April 30, 2013 in Recent Scholarship | Permalink | TrackBack (0)

Monday, April 29, 2013

En Banc Ninth Circuit Upholds Panel in Kilgore but Broughton-Cruz Survives

9th CircuitA little over a year ago, we reported on a Ninth Circuit case, Kilgore v. Key Bank.  Here is a summary of the panel's opinion:

The issue in Kilgore was whether California’s public policy favoring the litigation (rather than arbitration)  of claims seeking public injunctions could trump the [Federal Arbitration Act (FAA)] post-Concepcion  as it did pre-Concepcion in two California Supreme Court cases, Broughton and Cruz.  The Ninth Circuit reluctantly concluded that the Broughton-Cruz line of cases is no longer viable post-Concepcion.  As the Supreme Court made clear in Marmet, about which we blogged last monthConcepcion’s reach is broad enough to preempt state public policies other than the specific one addressed in Concepcion.  The fact that a state legislature specifically intended to avoid federal preemption under the FAA is irrelevant.

The Court then addressed the unconscionability of the arbitration clause. The Court noted that the arbitration clause at issue here was not buried in the contract and specified the rights that plaintiffs waived under arbitration.  In addition, the contract contained clear instructions on how to opt-out.  Finding no procedural unconscionability, the Court saw no need to address potential substantive unconscionability in the arbitration clause.  The case was remanded to the District Court with instructions to compel arbitration.

On rehearing en banc, the Ninth Circuit held that the case does not fall within the "public injunction" exception to the FAA, recognized in Broughton, Cruz, and Davis v. O'Melveny & Myers, and thus the Ninth Circuit vacated the District Court's denial of the defendant's motion to compel arbitration and remanded with instructions to compel aribration.  That exception only applies where the "benefits of granting injunctive relief by and large do not accrue to that party, but to the general public in danger of being victimized by the same deceptive practices as the plaintiff suffered.”  The Ninth Circuit found that not to be the case in Kilgore and thus it was able to compel arbitration while leaving the Broughton-Cruz exception to the FAA intact for now.

Judge Pregerson dissented, finding the challenged arbitration clause unconscionable.  

[JT] 

April 29, 2013 in Recent Cases | Permalink | Comments (0) | TrackBack (0)