Thursday, July 11, 2013
There may be some irony in this situation, or perhaps it is strategic: the website performs, and makes one of Nancy's points for her. Wrap contracts are everywhere and have become an unavoidable fact of life for the computer literate.
I cover all of this ground (and more) in my forthcoming book but more on that later....
Wednesday, July 10, 2013
Victor P. Goldberg, A Precedent Built on Sand: Norcon v. Niagara Mohawk. 2013 Colum. Bus. L. Rev. 38 (2013)
Hila Keren, Consenting under Stress, 64 Hastings L.J. 679 (2013)
Tuesday, July 9, 2013
Over at Balkinization, University of Maryland Law Prof Frank Pasquale (pictured) has a post about a recent article by Alana Samuels in the L.A. Times. Samuels' article begins with the now-familiar story of a janitor owed back wages who was forced into an arbitral forum that favored employers. His arbitration agreement, which was among the papers he signed without reading (and likely without being given the opportunity to read) on the first day of work, also included a class action waiver. Employers are also emboldened by the pro-business climate engendered by recent SCOTUS decisions to throw in attorneys' fees provisions, thus increasing the risks to employees who seek redress.
The story then proceeds to detail the plight of relatively low-wage workers, such as limo drivers and hair stylists, whose employers force them to sign non-compete clauses, even if they are part-time, meaning that they cannot find work with other businesses, even if they are not getting enough hours from their current employers. Pasquale reports that non-competes are now starting to kick in at the job application stage. He reports that at some job fairs, employers will not look at your application unless you sign a "letter of intent," which prevents the applicant from applying elsewhere whie the current application is pending.
It is not clear to me that such a letter would be or could be enforceable. What is the company's remedy if a potential employee violates the letter of intent? Presumably, the only remedy would be to refuse to hire, but if the employer is otherwise inclined to hire someone, would that person's failure to abide by the company's b.s. letter of intent really deter the company from hiring? And if the company does not decide to hire the person, there is obviously no harm to the company and so no way to enfore the letter of intent. The issue could arise, perhaps, if the company hired someone and then learned that the employee had violated the letter of intent. But since the employment is almost certainly at-will, what difference does the letter of intent issue make? The employer still is free to fire or not fire.
Monday, July 8, 2013
My colleague, David Herzig, called my attention to this weekend's New York Times Magazine, which featured an article about Jason Everman, who was briefly a member of two very successful bands, Nirvana (pictured) and Soundgarden. According to the article, Everman was too introverted to make it on tour, and he was fired from both bands for being moody. He bounced around with other bands for a while and eventually enlisted with the armed forces. He is now a decorated war hero and veteran of the Special Forces, where, according to the article, moodiness is not a big problem.
The part that piqued David's interest was early on, when Everman first joined Nirvana. According to the Times, Nirvana had just recorded its first album, Bleach, but they owed their producer money. Everman paid $606.17 to cover the debt, and the record eventually sold over 2 million copies. Kurt Cobain bragged that the band never even reimbursed Everman his $600. David thought maybe there would be some contractual angle that would lead to a recovery for Everman. The article suggests that Everman has moved on, and that's probably the right move both for the sake peace of mind and from the legal perspective, at least based on the facts as reported in the Times.
There is no suggestion in the article of a contract. It seems like Everman was just being a good guy and giving his friends some money. At best, he might have expected to be paid back, so a legal case would entitle him to $606.17 plus interest. Or he might have just been helping his bandmates in the expectation that the record's success would enable them to tour and to profit from being Nirvana, a privilege that Everman enjoyed for a while, before his bandmates discovered that he wasn't the person with whom they wanted to be stuck in a tour van.