ContractsProf Blog

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

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Thursday, May 9, 2013

Plain Meaning Leads to Mood Indigo for Ellington Heir

220px-Duke_Ellington_-_publicityDuke Ellington’s grandson brought a breach of contract action against a group of music publishers; he sought to recover royalties allegedly due under a 1961 contract. Under that contract, Ellington and his heirs are described as the “First Party” and several music publishers, including EMI Mills, are referred to as the “Second Party.” On appeal from the dismissal of the case, Ellington’s grandson pointed to paragraph 3(a) of the contract which required the Second Party to pay Ellington "a sum equal to fifty (50 percent) percent of the net revenue actually received by the Second Party from…foreign publication" of Ellington's compositions. Ellington’s grandson argued that the music publishers had since acquired ownership of the foreign subpublishers, thereby skimming net revenue actually received in the form of fees and, in turn, payment due to Ellington’s heirs.

The appellate court explained the contract and the grandson’s argument:

This is known in the music publishing industry as a "net receipts" arrangement by which a composer, such as Ellington, would collect royalties based on income received by a publisher after the deduction of fees charged by foreign subpublishers. As stated in plaintiff's brief, "net receipts" arrangements were standard when the agreement was executed in 1961. Plaintiff also notes that at that time foreign subpublishers were typically unaffiliated with domestic publishers such as Mills Music. Over time, however, EMI Mills, like other publishers, acquired ownership of the foreign subpublishers through which revenues derived from foreign subpublications were generated. Accordingly, in this case, fees that previously had been charged by independent foreign subpublishers under the instant net receipts agreement are now being charged by subpublishers owned by EMI Mills. Plaintiff asserts that EMI Mills has enabled itself to skim his claimed share of royalties from the Duke Ellington compositions by paying commissions to its affiliated foreign subpublishers before remitting the bargained-for royalty payments to Duke Ellington's heirs.

Ellington’s grandson asserted on appeal that the agreement is ambiguous as to whether "net revenue actually received by the Second Party" entails revenue received from EMI Mills's foreign subpublisher affiliates. The appellate court found no ambiguity in the agreement; the court stated that the agreement “by its terms, requires EMI Mills to pay Ellington’s heirs 50 percent of the net revenue actually received from foreign publication of Ellington’s compositions.” It reasoned:

"Foreign publication" has one unmistakable meaning regardless of whether it is performed by independent or affiliated subpublishers. Given the plain meaning of the agreement's language, plaintiff's argument that foreign subpublishers were generally unaffiliated in 1961, when the agreement was executed, is immaterial.

The court continued by stating that “the complaint sets forth no basis for plaintiff's apparent premise that subpublishers owned by EMI Mills should render their services for free although independent subpublishers were presumably compensated for rendering identical services.” Thus, dismissal of the suit was affirmed.

Ellington v. EMI Music, 651558/10, NYLJ 1202598616249, at *1 (App. Div., 1st, Decided May 2, 2013). 

[Meredith R. Miller]

May 9, 2013 in Celebrity Contracts, In the News, Music, Recent Cases, True Contracts | Permalink | Comments (0) | TrackBack (0)

Foretaste of Our Online Symposium on Margaret Jane Radin's Boilerplate


Next week, we will begin an online sympsoium on Margaret Jane Radin's Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law.  Here is a description of the book provided by the publisher's websit

RadinBoilerplate--the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order.

Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the Ben-Shahar, Omrinature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices

But before we kick off the symposium, we have a timely new review of the book from Omri Ben-Shahar (pictured) that is forthcoming in the Michigan Law Review.  The review is entitled Regulation through Boilerplate: An Apologia, and here is a description from SSRN:

This essay reviews Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights, And The Rule Of Law (Princeton Press, 2013). It responds to two of the book’s principal complaints against boilerplate consumer contracts: that they modify people’s rights without true agreement to, or even minimal knowledge of, their terms; and that the provisions they unilaterally enact are substantively intolerable. I argue, counter-intuitively, that contracts with long fine prints are no more complex and baffling to consumers than any alternative boilerplate-free templates of contracting. Therefore, there is no alternative universe in which consumers enter simpler contracts better informed of the legal terms. In addition, I argue that any policy that mandates consumer-friendlier arrangements (such as ones that eliminate boilerplate arbitration clauses, warranty disclaimers, or data collection) would hurt consumers in an unintended but potentially costly way.

[JT]

May 9, 2013 in About this Blog, Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Harper Lee Sues to Recover Her Rights to To Kill a Mockingbird

TKAMFor many lawyers, To Kill a Mockingbird (TKAM) is at the top of their list of "favorite books/movies about a lawyer." TKAM is about more than lawyering, of course.  It's about racism, family, class and much more.  This week, TKAM also is about "fraudulent inducement," "consideration" (a lack thereof) and "fiduciary duty." All of those subjects are in the complaint filed by TKAM author, (Nelle) Harper Lee, against her purported literary agent.

In the suit, Lee alleges that Samuel L. Pinkus (and a few other defendants) fraudulently induced her to sign her TKAM rights over to one of Pinkus's companies in 2007 and again in 2011. According to Lee, Pinkus, the son-in-law of Lee's longtime agent, Eugene Winick, transferred many of Winick's clients to himself when Winick fell ill in 2006. Pinkus then allegedly misappropriated royalties and failed to promote Lee's copyright in the U.S. and abroad.

For Contracts professors, the Lee v. Pinkus suit provides some interesting hypos to discuss when teaching fraud, consideration, and assignments of rights. Regarding fraud, Lee alleges that Pinkus lied to her about what she was signing at a time when she was particularly vulnerable due to a recent stroke and declining eyesight.  Consideration is in play because there allegedly was no consideration from Pinkus to Lee in exchange for Lee's transfer of rights to Pinkus.  Assignment issues arose because the many companies who owed Lee royalties reportedly struggled to figure out which company or companies they should pay given Pinkus's many shell companies.  Overall, it's a sad story for Ms. Lee but one that students may find particularly engaging.

[Heidi R. Anderson]

p.s. Although there are many quote-worthy passages in TKAM, a favorite of mine (useful when advising students about their writing) is: “Atticus told me to delete the adjectives and I'd have the facts.” Please feel free to share your favorites in the comments.

May 9, 2013 in Books, Current Affairs, Film, In the News, Recent Cases, Teaching, True Contracts | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 7, 2013

Weekly Top Tens from the Social Science Research Council

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

March 8, 2013 to May 7, 2013

RankDownloadsPaper Title
1 282 The Fiduciary Obligations of Financial Advisors Under the Law of Agency 
Robert H. Sitkoff
Harvard Law School
2 202 Offer and Acceptance in Modern Contract Law: A Needless Concept 
Shawn J. Bayern
Florida State University - College of Law
3 172 Private Equity Firms as Gatekeepers 
Elisabeth de Fontenay
Harvard Law School
4 110 Promise, Contract, Personal Autonomy, and the Freedom to Change One's Mind 
Dori Kimel
University of Oxford - Faculty of Law
5 105 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
6 100 Preemption Without Borders: The Modern Conflation of Tort and Contract Liabilities 
Max N. Helveston
DePaul University - College of Law
7 96 Revenge of the Clerks: MERS Confronts County Clerk and Qui Tam Lawsuits 
Dustin A. Zacks
King, Nieves & Zacks PLLC
8 96 Efficient Breach Is Dead; Long Live Efficient Breach 
Gregory Klass
Georgetown University - Law Cente
9 92 Discretion 
D. Gordon SmithJordan C. Lee
Brigham Young University - J. Reuben Clark Law School , Brigham Young University - J. Reuben Clark Law School
10 90 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)  

March 8, 2013 to May 7, 2013



RankDownloadsPaper Title
1 202 Offer and Acceptance in Modern Contract Law: A Needless Concept 
Shawn J. Bayern
Florida State University - College of Law
2 197 One Sided Jurisdiction Clauses - A Casenote on Rothschild 
Pascal AncelGilles Cuniberti
Universite du Luxembourg, University of Luxembourg
3 123 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
4 110 Promise, Contract, Personal Autonomy, and the Freedom to Change One's Mind 
Dori Kimel
University of Oxford - Faculty of Law
5 105 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
6 100 Preemption Without Borders: The Modern Conflation of Tort and Contract Liabilities 
Max N. Helveston
DePaul University - College of Law
7 96 Efficient Breach Is Dead; Long Live Efficient Breach 
Gregory Klass
Georgetown University - Law Center
8 92 Discretion 
D. Gordon SmithJordan C. Lee
Brigham Young University - J. Reuben Clark Law School , Brigham Young University - J. Reuben Clark Law School
9 88 Contract Law in Europe and the United States: Legal Unification in the Civil Law and the Common Law 
Hein D. Koetz
Max Planck Institute for Comparative and International Private Law
10 86 FRAND's Forever: Standards, Patent Transfers, and Licensing Commitments 
Jay P. KesanCarol M. Hayes
University of Illinois College of Law , University of Illinois at Urbana-Champaign - College of Law

[JT]

May 7, 2013 in Recent Scholarship | Permalink | TrackBack (0)

CALL FOR PAPERS: CLASSCRITS VI: Stuck in Forward? Debt, Austerity & the Possibility of the Political

SouthwesternCALL FOR PAPERS & PARTICIPATION ClassCrits VI

Stuck in Forward?

Debt, Austerity and the Possibilities of the Political

Sponsored by

Southwestern Law School &

U.C. Davis School of Law

UCDavisLos Angeles, CA * November 15-16, 2013

Keynote Speaker: Professor Akhil Gupta, Department of Anthropology

Director, Center for India and South Asia, University of California, Los Angeles

What are the possibilities and alternatives for a genuinely progressive economic project in an age of resurgent neoliberal policies and politics, worldwide shifts in population and demographics, and hegemonic economics?

How can we address the challenges of our age including, but not limited to: globalization; shifting power relationships between the developed world and formerly “third world” countries; massive intergenerational and upward transfers of wealth; abject poverty; staggering debt; wage stagnation; a declining middle class; an increasingly dysfunctional food system; and environmental and climate risks that will require concerted national and international efforts.

Stuck in Forward? Debt, Austerity and the Possibilities of the Political will address these questions by bringing together scholars, economists, activists, policymakers, and others to critically examine and take stock of who wins, who loses, how the law facilitates the hierarchical and spatial distribution of winners and losers, and how we may use law and politics to develop both real and utopian interstitial spaces of classlessness within the new post-recession global order.

We invite panel proposals and paper presentations that speak to this year’s theme  as well as to general ClassCrits themes. In addition, we extend a special invitation to junior scholars (i.e., graduate students or any non-tenured faculty member) to submit proposals for works in progress . A senior scholar as well as other scholars will comment upon each work in progress in a small, supportive working session.

Please visit the ClassCrits website for more information about this year’s themes and topics.

For the full call for proposals, contact any member of the Conference Planning Committee:

Danielle Kie Hart, Southwestern Law School
dhart@swlaw.edu

Tonya Brito, The University of Wisconsin Law School
tlbrito@wisc.edu

Athena Mutua, SUNY Buffalo Law School
admutua@buffalo.edu

Lucille Jewel, John Marshall Law School
ljewel@johnmarshall.edu

Martha McCluskey, SUNY Buffalo Law School
mcclusk@buffalo.edu

Jessica Owley, SUNY Buffalo Law School
JOL@buffalo.edu

Matthew Titolo, West Virginia University College of Law
Matthew.titolo@mail.wvu.edu

René Reich-Graefe, Western New England University School of Law
rene.reich-graefe@law.wne.edu

[JT]

May 7, 2013 in Conferences | Permalink | TrackBack (0)

Lil Wayne Loses Endorsement Over Emmett Till Lyrics, But Don't Worry, Celebrating Violence Against Women Is Still Fine

Mountain Dew
As reported here in Rolling Stone, Mountain Dew has terminated its endorsement deal with Lil Wayne because of offensive lyrics in an unauthorized leak of a remix of Future's "Karate Chop."  The offensive lyrics can be found here, except that the online version omits the reference to Emmett Till, a fourteen year old African-American boy who was tortured and killed in Mississippi in 1955, after allegedly having whistled at a white woman.  Lil Wayne's lyrics brag that he will do to a woman's vagina what was done to Emmett Till.

Emmett Till's family was outraged by the reference.  As noted in the New York Times, although Rolling Stone and others have characterized Lil Wayne's response as an apology, the family recognized that it was not an apology. Lil Wayne "acknolwedged" the family's hurt and pledged not to reference Emmett Till in his lyrics in the future.  

What is really striking is the utter lack of comment on the rest of the lyrics.  The reference to Emmett Till imay only be the most offensive thing about the song, but all of the lyrics in Lil Wayne's verse are absolutely vile.  The Times reports that Al Sharpton has been called in to take advantage of this "teaching moment" to help young artists like Lil Wayne understand more about the civil rights movement.  

Violence against women is also a civil rights issue.

[JT]

May 7, 2013 in Celebrity Contracts, Commentary, In the News | Permalink | Comments (0) | TrackBack (0)

Monday, May 6, 2013

Yogurt Deal Goes Sour

Greek yogurtInteresting story here on the Wall Street Journal's Market Watch blog.  Interesting because it seems like the case will be very difficult for plaintiff to prove and its damages will be a challenge to calculate with requisite specificity.

The facts, as also reported here on Food Navigator-USA are as follows:

In 2012, Tula Foods introduced its Better Whey of Life premium Greek yogurt line, which is now sold in over 400 stores.  Tula contracted with the Kroger Co., which in addition to its retail stores owns and operate 37 manufacturing plants at which it produced, among other things, Tula's Better Whey of Life yogurts.  According to the complaint, as summarized on the Market Watch blog, becasue Kroger did not produce the yogurt according to Tula's specification (and it allegedly did so knowlingly).  Tula also brings claims against Weber Flavors, which Tula claims failed to properly "treat and process the vanilla bean base" in Tula's yogurt.   As a result, Kroger released "poor-quality unappetizing yogurt on the market."  If that isn't not specific enough for you, the complaint specifies that, as a result of the improperly processed vanilla bean base, Tula found mold growing in its finished yogurt, resulting in a recall.

Just an aside here, for fans of Slings and Arrows, doesn't that slogan (something like, "Tula provides only poor-quality unappetizing yogurt laced with mold") strike you as precisely the sort of ad campaign that Froghammer would have come up with if they were hired to market Better Whey of Life yogurts?

 

 There is also a misappropriation claim, since Kroger allegedly used Tula's trade secrets to make a competing store brank of Greek yogurt -- but was it of equally poor quality and equally unappetizing?  Surely a jury question there. 

The theory of contract damages will be a challenge, because Tula will have to show that its product would have taken off were it not for the devastating effects on its reputation caused by the alleged breaches and resulting product recalls.  Demonstrating defendants' failure (perhaps intentional failure) to adhere to Tula's specifications will also be a lot of work.  But those allegations will also be very difficult to dismiss without a lot of discovery and perhaps a trial, so the settlement price should be high if the complaint adequately states a cause of action.  Moreover, as Tula is also bringing claims for breach of express and implied warranties, a record of moldy yogurt ought to do the trick.

[JT]

May 6, 2013 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)