ContractsProf Blog

NY Court Dismisses Law Student’s Attempt to Challenge Legal Writing Grade, Finding No Implied Contract

Over at Adjunct Prof Blog, Mitchell H. Rubinstein reports on Keefe v. New York Law School, ___Misc. 3d___(N.Y. Co. Nov. 17, 2009), which dismissed a student’s claim that New York Law School breached an implied contract by giving him a “C” in Legal Writing.  Here’s Rubinstein’s summary:

A transfer student to New York Law School from Hofstra Law School was unhappy with being placed in Legal Writing II. As I understand it, his argument was that New York Law School breached an implied contract because it did not provide him with "the right program for every student" as indicated on the law school's web site. Out of the blue he argued that legal writing should be graded pass/fail because that is the way it is done at Yale Law School. The court did not have any trouble dismissing the case and finding that no implied contract existed. As the court stated:

Generally, New York State courts have permitted a student to bring a breach of implied contract action against an institution of higher education. See Radin v. Albert Einstein College of Med. Of Yeshiva Univ., 2005 U.S. Dist. LEXIS 9772 at *30 (S.D.N.Y May 20, 2005). However, a student must identify specific language in the school's bulletins, circulars, catalogues and handbooks which establishes the particular "contractual" right or obligation alleged by the student in order to make out an implied contract claim. See Sweeney v. Columbia Univ., 270, AD2d 335, 336 (2d Dep't 2000); Vought v. Teacher's Coll., Columbia Univ., 127 AD2d 654, 655 (2d Dep't 1987). General statements of policy are not sufficient to create a contractual obligation. Only specific promises that are material to the student's relationship with the school can establish the existence of an implied contract. See Lloyd v. Alpha Phi Alpha Fraternity, 1999 U.S. Dist. LEXIS 906, at *27-*28 (N.D.NY Jan, 26, 1999). "To state a valid claim for a breach of contract, a plaintiff must state when and how the defendant breached those specific promises. Radin, 2005 U.S. Dist LEXIS 9772, at *32. 



In the case at bar, Plaintiff fails to cite any specific provision or communication from NYLS that would establish an implied contract. One cannot breach a contractual promise that was never made. Radin, 2005 U.S. Dist. LEXIS 9772, at *37. Plaintiff fails to point to any document or communication that gives rise to a promise which NYLS has breached. See Chira v. Columbia Univ., 289 F. Supp.2d 47, 485, 486 (S.D.N.Y 2003); Ward v. New York Univ., 2000 U.S. Dist. LEXIS 14067, at *10-*12 (S.D.NY Sept 25, 2000). Therefore the motion to dismiss the complaint is granted in its entirety. 



Moreover, New York courts have repeatedly refused to interfere in the academic procedures of educational institutions and cannot and will not intervene in disputes involving an educational institution's grading system. 



As the New York Court of Appeals has stated quite clearly in Susan M. v. New York Law School, 76 NY2d 241, 246-247 (1990). 



As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student's challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student's academic capabilities is beyond the scope of judicial review. 



Plaintiff is requesting this Court to intrude upon an area to which New York Courts have [*3]strongly refused to intervene. Here, Plaintiff has shown no evidence of "bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation." id. NYLS clearly communicated through the student handbook that NYLS utilizes a letter grading system under which all of its students are evaluated. This Court declines to interfere with this quintessential function of an educational institution. 

I would file this one in “nice try.”

[Meredith R. Miller]

Jon & Kate -- But Wait!! It's a Different Kate!

It is very hard to keep up with all the law suits swirling around the celebrated parents, Jon, at left, & Kate.  And it's probably not worth trying to do so, but an image of a handwritten contract is simply too good to pass up.  So, here it is, courtesy of the good people at Radaronline.com.  In the document, Jon Gosselin appears to pledge to hire Kate Major as his "personal assistant."  She would be compensated with "a percentage of accounts for payment based upon involvement."  Ms. Major, aka Kate 2.0, is suing Jon Gosselin for breach.  Octodad Jon's attorney proclaims that the other Kate's lawsuit is nonsense.  You can read about it here.  

According to the New York Daily News, the written agreement also included a pledge by Kate 2.0, that she and Jon would not comment publicly about their relationship. Both seem to have breached that part of the deal, but their accounts differ as to the nature of their relationship.  Kate 2.0 also provides additional details of oral promises that Jon made to her.  None of the websites visited by the author had any information about whether the parol evidence rule might apply, nor do they address the existence of a no-oral-modifications clause in the handwritten agreement.

[Jeremy Telman]

Contract or Extortion?

Last month, we speculated a bit on the relationship between blackmail and contract.  Last week, Am Law Litigation Daily reported on a case in point.  Plaintiff Robert Eringer is suing Prince Albert II of Monaco (pictured) for $60,000 that plaintiff alleges is owed under a contract for investigative work that plaintiff performed in Monaco between 2005 and 2007.  

Plaintiff's complaint can be found here.  The complaint alleges that plaintiff was employed as an intelligence officer to help the Prince root out corruption, organized crime and money laundering in Monaco.  The further details of the complaint -- and there are many -- are very interesting, setting out the individuals and entities, including the Freemasons and "Italian organized crime groups" that plaintiff claims to have investigated, with the help of various state intelligence agencies, including the CIA.  The complaint also details plaintiff's alleged negotiations on the Prince's behalf with the Prince's various illegitimate children.  It's quite a colorful document.

But the Prince's attorney characterizes the lawsuit as a "crude shakedown" and as "blatant extortion." Gosh.  If I were going to extort money from the Prince of Monaco, I don't think $60,000 is the figure I would pick.  But the allegation of extortion certainly adds flair to the drama.  Defendant's motion to dismiss, largely on the grounds that the Prince is a head of state and the foreign sovereign immunity doctrine precludes the suit, can be found here.  The motion also requests that the court strike from the complaint all "immaterial, impertinent and scandalous matter."  Great stuff.

[Jeremy Telman] 

A Corollary to the Totten Doctrine: Wilson v. CIA

As previously discussed on the blog, the Totten doctrine requires dismissal of a case when "the very subject-matter" of the case is a state secret.  Today's New York Times reports that the Second Circuit has dismissed Valerie Wilson's suit against the Central Intelligence Agency, in which she claimed that the Agency violated her free-speech rights when it required redaction of her 2007 book, Fair Game.  

As reported in the Times, the Second Circuit's reasoning is based on a contractual override of Wilson's 1st Amendment rights: “When Ms. Wilson elected to serve with the C.I.A., she accepted a life-long restriction on her ability to disclose classified and classifiable information.”  The problem is that at least some of the information in question had already been leaked to the public by the government and in any case was made public and widely reported on.  No matter, says the court.  The information is still classified, and she is still bound, even if governmental breaches “may warrant investigation.”

Although the entire panel voted to dismiss, Judge Katzmann concurred:

I agree with the majority that Ms. Wilson’s pre-2002 dates of service, if any, were originally properly classified by the CIA, have never been officially declassified, and were never officially disclosed by the CIA.  Therefore, I also agree that this Court has no power to free Ms. Wilson from the secrecy agreement that she signed upon commencement of her employment with the CIA.  At the same time, I write to observe that the CIA’s position in this litigation blinks reality in light of the unique facts of this case and the policies behind the doctrines at issue here.  Indeed, the CIA’s litigation posture may very well be counterproductive to its purposes.

Judge Katzmann proceeds to explain that the CIA’s justification for the redaction was that the dates of Ms. Wilson’s service ought not to be revealed.  However, those dates had already been revealed in a CIA-authored document, submitted on CIA letterhead and entered in the public record as part the Congressional Record in 2006.  Judge Katzmann thus argued that while, as a legal matter, the court is without power to order the CIA to permit the release of classified information, whether or not it was already in the public domain, as a matter of policy, it is harmful to the reputation of the CIA for it to disseminate information and then also attempt to suppress it. 

The opinion can be found here.

[Jeremy Telman]

Activision Avatar Update: I'm Just a.... Honky Tonk Woman

We had previously mentioned Courtney Love’s threatened lawsuit against Activision for breach of contract – namely, for creating a game “Band Hero” that allows players to use a Kurt Cobain avatar to sing other artists’ songs.  Now, the band No Doubt has sued Activision for using Gwen Stefani’s avatar to sing other artists’ songs, such at the Stones’ Honky Tonk Woman.  As reported by attorney Patti Millett at Huffington Post, the lawsuit calls these performances "virtual karaoke circus act[s]."

Millett provides a detailed analysis: 

No Doubt admittedly granted Activision a license to use the names and likenesses of its members in the Band Hero game and on certain advertising. No Doubt claims, however, that it was never told that the virtual likenesses of its members, so called "avatars," could be manipulated by gamers so that they perform songs by other artists and sing in voices other than their own. 

No Doubt's lawsuit specifically complains about the fact that the Gwen Stefani avatar can be made to perform the Rolling Stone's hit "Honky Tonk Woman" in a male voice. No Doubt apparently means no offense to Mick Jagger and Keith Richards -- the complaint specifically states that No Doubt are avid fans of the Rolling Stones -- they just don't like having their images manipulated in a way they did not approve. The lawsuit cites as a second problematic example the fact that the avatar of No Doubt bassist Tony Kanal can be made to sing lead vocals on No Doubt songs in a female voice. 

No Doubt are not the first rockers to complain about Activision's manipulation of rock star avatars. In September, Courtney Love and Kurt Cobain's former Nirvana band mates Dave Grohl and Krist Novoselic strongly objected to the fact that Cobain's avatar could be used to play songs from other artists on Guitar Hero 5, although no lawsuit was filed (at least not that this writer is aware of).

****

The question to be decided in the lawsuit is whether the license granted by No Doubt allows Activision to do what it did. Ultimately, this will be a question of contract interpretation.

No Doubt's lawyers appear to have some concern that a judge or jury may find that the language of the contract allows Activision to do what it did because the complaint includes causes of action for fraudulent inducement and rescission, in addition to a claim for breach of contract. No Doubt's claims for fraudulent inducement and rescission in essence say that No Doubt was misled into signing the contract and that if the members had known that Activision had intended to manipulate their avatars, they would never have signed the contract.

Claims for fraudulent inducement typically face a significant legal hurdle known as the parol evidence rule, which prohibits parties from introducing evidence of oral statements to vary the terms of a written contract.

No Doubt's complaint alleges that its agreement "prohibits" the use of the No Doubt avatars without the prior written consent of No Doubt. The contract, however, is not as clear as No Doubt's complaint suggests, which may turn out to be a good thing for the band.

Under California law, if a contract is ambiguous, evidence of oral statements made prior to the execution of the contract can be introduced to help explain the terms of the contract. In No Doubt's case, the contract (which is attached to the publicly-filed complaint) expressly provides that the likeness of the band members "as implemented in the game" is subject to the prior written approval of the band. This provision may be found legally ambiguous because it is unclear whether "as implemented in the game" means the way the avatars look, or also what they can be made to do (i.e., sing "Honkey Tonk Woman" in a male voice). Activision will undoubtedly advocate the former, and No Doubt the latter.

One can only assume that Activision has something in writing from No Doubt signing off on the general appearance of the No Doubt avatars. Such a writing will boost Activision's argument that No Doubt's written approval rights were limited to the general appearance of the characters, and that even if they were not, No Doubt waived any additional approval rights by providing written consent.

No Doubt's complaint, however, makes reference to evidence which, if true, is likely to be devastating to Activision's case. No Doubt claims that Activision represented both before and after the contract was signed "that its name and likeness would only be used in conjunction with three selected No Doubt songs within Band Hero."

If No Doubt can prove these statements were made (or better yet get some Activision executive to admit that he or she said it), Activision will be hard-pressed to prevail on the claim that it had the right to make Gwen Stefani sound like Mick Jagger or otherwise manipulate the No Doubt avatars.

What could possibly be more fun than a band called No Doubt arguing that a contract clause is ambiguous?  Or, that the singer famous for the lyric "I'm just a girl, all pretty and petite" is now singing about "a gin-soaked bar-room queen in Memphis"?

Compare and contrast:

[Meredith R. Miller]

Celebrities, Sex Tapes, Contracts and a Public Service Announcement [Also: JLo Gets a TRO]

Last week, Carrie Prejean settled her lawsuit against Miss California USA (previously mentioned here and here) for next to nothing.  Why?  A sex tape surfaced.

This week, ContractsProf Blog reads that Jennifer Lopez has sued her ex-husband for attempting to find a buyer for a "steamy home video of the couple's honeymoon."  An LA judge granted JLo a TRO. JLo claims that her ex is in breach of a contract, pursuant to which he agreed not to publish details of their relationship.  The AFP reports:

According to court papers filed on behalf of Lopez on Friday, the singer-actress's ex-husband Ojani Noa is attempting to find a buyer for a film which includes steamy home video of the couple's honeymoon.

Lopez is claiming breach of contract and seeking 10 million dollars in damages over Noa's attempts to sell the film. Film-maker Ed Meyer is also named in the suit, records show.

The case is the second lawsuit filed by Lopez, 40, against Noa, who she married in 1997 and divorced 11 months later.

In the first case Lopez successfully sued to prevent publication of a tell-all book Noa was writing about the couple.

Lopez was eventually awarded 545,000 dollars by an arbitrator for breach of contract. Lopez said Noa had signed an agreement before their wedding agreeing not to publish details of their relationship.

Lopez's second husband was choreographer Cris Judd, whom she married in September 2001 and divorced less than nine months later. Lopez and singer Marc Anthony were married in June 2004 and are the parents of twins.

Free public service announcement: think before you make a sex tape.  Counteract your cognitive bias.  There is an overoptimism problem here - you may go into the situation thinking you are with someone who will never use the video to extort money from you or profiteer.  There is, however, ample empirical evidence that your relationship is not guaranteed last.  If you *must* make a sex tape, be the one to keep sole possession of it.

[Meredith R. Miller]

Tribute to the Onion: 21 Stinking Years

We often start or conclude our posts with something like "We couldn't make this up if we tried," and believe me we couldn't.  So, I think it's only fitting that we recognize an organization that has been making stuff up for 21 years and doing it with flair.  And no, I don't mean FOX News.

As real newspapers are grudgingly acknowledging, The Onion is celebrating its 21st anniversary with a new book, featuring the fake newspaper's front pages.  Perhaps all the news coverage from the Mainstream Media is just a ploy.  They are giving away The Onion's key trade secret -- write the headlines first!

[Jeremy Telman]

Michelle Triola Marvin, Mother of Palimony, Dead at 76

Michelle Triola Marvin, who lived with Lee Marvin for six years and then sued for her share of the income he had earned during the relationship, has died at the age of 76.  Ms. Marvin was the plaintiff in the landmark Marvin v. Marvin case, which we have had occasion to mention on the blog before, here and here.  The New York Times obituary can be found here.

[Jeremy Telman]

The New Yorker, Blackmail & Contract

The October 19, 2009 issue of The New Yorker had an interesting little “Talk of the Town” item by Lizzie Widdicombe on the whole David Letterman blackmail issue.   Northwestern Law School’s James Lindgren (unfortunately not a ContractsProf) wonders why blackmail is a crime.  I think the Letterman version of Lindgren's hypothetical would run something like this: Suppose Joel Halderman, the alleged Letterman blackmailer, had written a screenplay that would have exposed Letterman’s penchant for sexual liaisons with his employees.  Suppose Letterman had learned of the screenplay, perhaps because Halderman arranged for him to see it, and offered Halderman $2 million to destroy all copies.  Lindgren suggests that, had Halderman accepted such an offer, we would have had an enforceable contract and no crime.  So if the offer runs in the other direction, why is this a crime?

Widdicombe’s piece offers some situations that we might consider akin to blackmail: all commercial transactions, if you are a “Marxist”; divorce proceedings; and consumers who press for settlement by threatening adverse publicity for the corporate defendant.  The offense we take at blackmail is mere evidence of our penchant to wax sanctimonious over other people’s conduct when we engage in similar or worse conduct under color of law and call it virtue, Saul Smilansky seems to suggest.

Richard Epstein rides to the rescue, explaining that we don’t want to live in a world that permits blackmail, because blackmail leads to fraud, “and lying to the world is wrong.”  Of course, I don't know if the world we live in now, in which Letterman voluntarily catalogues his own faults, is any better.  Others acknowledge what Widdicombe calls “the ick factor,” but tie that factor to the fact that Halderman allegedly sought money.  If he had threatened to ruin Letterman’s reputation by going public with the news, there would be no crime.  Libertarian economist Walter Block goes further, arguing that blackmail, even if “yucky” should not be a crime, any more than smoking is a crime. 

I am more interested in the contracts law issue.  I think it is possible that we could use contracts doctrines, such as duress, undue influence and unconscionability to distinguish between enforceable agreements and acts of extortion.  Thoughts?

[Jeremy Telman]

Cosmic Contracts: Forever and Throughout the Universe

 
Great article in today's WSJ titled "Lawyerese Goes Galactic as Contracts Try to Master the Universe."  Read it.  Here's a taste:

Decked out in sequined black and gold dresses, Anne Harrison and the other women in her Bulgarian folk-singing group were lined up to try out for NBC's "America's Got Talent" TV show when they noticed peculiar wording in the release papers they were asked to sign.

Any of their actions that day last February, the contract said, could be "edited, in all media, throughout the universe, in perpetuity."

She and the other singers, many of whom are librarians in the Washington, D.C., area, briefly contemplated whether thy should give away the rights to hurtling their images and voices across the galaxies forever. Then, like thousands of other contestants, they signed their names.

Ms. Harrison figured the lawyers for the show were trying to hammer home the point that contestants have no rights to their performances, "but I think they're just lazy and don't want to write a real contract," she says.

Lawyers for years have added language to some contracts that stretches beyond the Earth's atmosphere. But more and more people are encountering such everywhere-and-forever language as entertainment companies tap into amateur talent and try to anticipate every possible future stream of revenue.

Experts in contract drafting say lawyers are trying to ensure that with the proliferation of new outlets -- including mobile-phone screens, Twitter, online video sites and the like -- they cover all possible venues from which their clients can derive income, even those in outer space. FremantleMedia, one of the producers of NBC's "America's Got Talent," declined to comment on its contracts.

The article provides Prof. Eric Goldman's view of these intergalactic contracts clauses:

[Goldman] says the language could be "a stroke of brilliant foresight." Referring to geographical limits loosely can be dangerous, he says. For instance, "the United States is an ambiguous term...American Samoa, yes or no?"

"Throughout the world" would be one alternative, but that excludes possible future markets, he says. Some day, Mr. Goldman adds, people might ask, "What were they thinking? Why didn't they get the Mars rights?"

Cosmic. 

[Meredith R. Miller]

Wow: Does the UCC List Kidnapping and Murder as Buyer’s Remedies?

This gets filed in “Whacky Stories” and/or “Chutzpah!”  Apparently, buyer and N.Y. seller have a contract for the construction and sale of an ice cream truck for a price of $18,000.  Buyer requests a refund; seller refuses.  Buyer makes the trip to New York and kidnaps seller and murders seller's friend.  Buyer pleads guilty in exchange for KFC and ice cream.  Now, presumably from prison, buyer sues seller for (1) refund and (2) reimbursement of travel expenses to New York.  We just can't make this stuff up.

[Meredith R. Miller][h/t Isaac Samuels]

Important Consumer Alert: Baby Einstein DVDs Might Not Make Kids Smarter

Disney, which makes the Baby Einstein series of children’s DVDs, has “set the record straight” with an announcement that it does not advertise the videos as “educational.” Consumer rights groups had accused the company of deceptive advertising because there is no proof that the videos make kids smarter.  The company is actually offering a refund to buyers who purchased a DVD between June 5, 2004, and Sept. 4, 2009.  Here’s the story from Newsday: 

Beth Kichel and Lisa Kobel are expecting a Baby Einstein windfall - between them the Long Island moms own half a dozen of the DVDs, and the Walt Disney Co. is now refunding $15.99 per video.

A throw-down between The Baby Einstein Company and a Boston child advocacy group has resulted in the bonus for consumers.

"The Campaign for a Commercial-Free Childhood" has been fighting the Einstein division of Disney for years, saying the company's advertising was "deceptive." The advocacy group's position: There's no proof watching the videos, which feature classical music and art for babies and toddlers, makes a child any smarter.

Baby Einstein countered by posting a "set the record straight" announcement on its Web site, saying it doesn't advertise the videos as "educational," and that it has expanded its refund policy, not because it's guilty, but as a show of confidence in the product and to end the fight. "We decided it to leave it up to those consumers," wrote general manager Susan McLain.

Kichel and Kobel are among the consumers ready to cash in. Kichel got her tapes when her daughter, Tali, now 2, was born. "I tried to make her watch them, having heard the hype about how intellectually stimulating they are for the newborns," said Kichel, who lives in Bellmore. "She had no interest in them. I will look for them now to return and get the refund."

Kobel, who lives in Huntington and has a 22-month-old named Jillian, echoed Kichel as the moms played with their children at the indoor playground Once Upon a Treetop in Plainview. "I didn't buy them thinking, 'Oh, it's going to make her smarter,' " Kobel said. "They're a little boring."

[Meredith R. Miller]

Marcus Jordan: A Pair of Shoes, Family Ties and a University's Exclusive Contract

The Orlando Sentinel reports this interesting contracts story, involving Michael Jordan's son:

A pair of shoes could end up costing the University of Central Florida nearly $3 million.

UCF promised Marcus Jordan, son of NBA legend Michael Jordan, that he could wear his father's Nike Air Jordan brand for the Knights' basketball team this season.

The problem? UCF has an exclusive $3 million, six-year contract with adidas that requires all coaches and athletes to use the company's shoes, apparel and game equipment.

And now UCF and adidas are at an impasse, leaving an 18-year-old freshman with a famous father caught in the middle.

"When I was being recruited, we talked about it," Marcus Jordan said. "They said they had talked to the adidas people, and it wasn't going to be a problem. I think everybody understands how big of a deal it is for my family."

The deal has strained the relationship between UCF and one of its most important business partners, complicating current contract-renewal negotiations. The university's agreement with the company expires in 2010.

Contrary to a report last week by AOL Fanhouse, adidas officials told the Orlando Sentinel they have not reached an agreement with UCF yet about Jordan's shoes.

"There is no compromise, and the contract is currently under review," adidas spokeswoman Andrea Corso said. "We are in negotiations for a future relationship regarding the broader UCF athletic program. What I can say is that these relationships are based upon agreed deliverables for both parties."

UCF Athletics Association released a statement indicating it hopes to extend its 5-year-old relationship with adidas.

"At this time, we are working with adidas in determining how this unique set of circumstances will work for both parties," the statement said. "We made adidas aware of this unique situation during contract-renewal discussions. There is a great deal of respect for the adidas brand and the partnership."

UCF's contract with adidas represents about 1.4 percent of the UCF Athletics Association's projected income this year.

UCF is negotiating a new deal with adidas that is tentatively expected to be worth $3million and last up to six years. UCF would receive all its merchandise from adidas free under the new proposed contract, a change from the current deal that calls for UCF to buy some items from adidas at wholesale prices.

Nike has not expressed interest in taking over the UCF shoe contract, with the company well-represented in the Florida market thanks to agreements with the University of Florida, Florida State and Miami.

In the worst-possible scenario, UCF risks losing its current adidas contract's worth and being forced to buy its own clothing, shoes and equipment at full price for all 15 of its sports.

Marcus Jordan, the young man in the middle of this controversy, said he never meant to offend anyone.

"It's a level of importance with the Jordan brand and my family," he said. "It's no disrespect to adidas. I have a high level of respect for adidas, but I'm going to be wearing Jordan shoes. I'm wearing the adidas uniform, and all my other UCF gear is adidas, but the shoes are going to be Jordan brand."

Dan Drane, an assistant professor of sports management at the University of Southern Mississippi, said it's hard to imagine Marcus Jordan would be able to wear anything besides Nikes.

"Whether it's right or wrong, Michael Jordan's sons will always be compared to and associated with him," Drane said. "It would be very difficult for them to be associated with a company other than the one that was so supportive of their father's career."

Drane said the shoe controversy goes beyond adidas simply wanting UCF to honor its contract.

"It's a pretty deep issue that touches on a student's legal right to wear whatever they feel is best for them," Drane said. "In the end, this might end up being bigger than just a battle between adidas and Nike."

[Meredith R. Miller]

Update on Franken Amendment: Jamie Leigh Jones interview

We previously mentioned the "Franken Amendment" to the 2010 Defense Appropriations bill, which would withhold defense contracts from companies like Halliburton if their contracts restrict employees from suing in court for claims such as sexual assault, battery and discrimination. 

Jamie Leigh Jones and her attorney appeared on the Rachel Maddow Show last night to tell ther story, and speak in support of the amendment.  If you are interested in this development, it is worth watching:

[Meredith R. Miller]

Was Carrie Prejean Unjustly Enriched? (Nudge Nudge Wink Wink)

You'll undoubtedly recall that, back in May, we mentioned that Miss California USA (aka Donald Trump) might terminate then-Miss California Carrie Prejean for breach of contract.  Prejean was in fact de-crowned, and she sued the pageant organizers for a whole host of things, including discrimination based on her anti-gay marriage stance and violation of her privacy when a representative acknowledged publicly that she had breast implants.  The franchise wasted no time with a countersuit and, according to CNN, one of the claims seeks to recover some $5000 the pageant organizers loaned Prejean for the breast implant surgery - pursuant to an oral agreement between the parties. 

Some stories, even contracts profs can't make up.  This ugly tale of caution is one of them. 

[Meredith R. Miller]

Executive Compensation Mystery at Sotheby's

The New York Times reports that the Sotheby's auction house has refused to provide government regulators with information on bonuses paid to Sotheby's executives.  Sotheby's justifies this refusal by pointing out that if that information were to become public, its arch-rival Christie's, could use it to lure executives away from Sotheby's by offering still more lucrative compensation.  In correspondence with the SEC, posted here, Sotheby's pointed out that its "chief competitor" -- i.e., Christie's -- is a private corporation not subject to disclosure rules.  

This news fascinates me for three reasons:

1. Sotheby's and Christie's are undoubtedly at the top of the heap in the art dealing industry.  Based on my circle of acquaintances, which includes many unemployed or underemployed artists, art curators and art experts, it seems likely to me that Sotheby's and Christie's benefit from being in a buyer's market when it comes to hiring executives.  If both companies under-compensated their executives, where would those executives go?  And if they left, so what?  Couldn't Sotheby's and Christie's easily find highly competent replacements who would work on paint fumes just for the honor of getting those great auction houses on their resumes?

2. But even if I'm wrong about that, if Christie's were really interested in luring executives away from Sotheby's, couldn't they just ask the executives about what sort of compensation package it would take to motivate them to move?  Is there a number one rule of Sotheby's Club that you don't talk about Sotheby's Club?

3. In any case, didn't Sotheby's waive its right to whine about the hassles of disclosure when it went public?

[Jeremy Telman]

Jon & Kate Plus Attorneys

Many regular readers have written to complain about the blog's non-existent coverage of the greatest drama of the 21st century thus far, the War of the Gosselins.  The truth is, we were barred from writing about "other reality television programs" under the terms of various letters of intent that we had entered into with reality television production companies interested in pitching shows that centered on our blog and our rivalries with other law blogs.  Sadly enough, television viewers will now never see that drama.  

We were able to overcome the initial obstacle that the camera crews kept on falling asleep while filming the "action shots," which consisted of us eating ding dongs, sipping coffee and Mountain Dew while composing blog posts and chortling as we flamed our various nemeses.  But when the focus groups that viewed the pilot for our show also fell asleep, each production company in turn told us "we should do lunch some time."  Whatever that means.  

So, to get you up to speed.  CNN.com reports the following: Jon and Kate are separated.  TLC, the channel that brought us "Jon & Kate Plus 8," decided to continue with a show that focused on Kate's "journey as a single mother."  Jon pulled the plug on that by denying TLC access to his home, expressing concern [get this!] for his children.  You can watch Jon and his central-casting-provided attorney on Larry King Live here.  It will really be a shame if "Kate Plus 8" never appears.  As the advance publicity shot provided here indicates, Kate will inspire other mothers of multiples with her tips on keeping in shape while pregnant through hoola hoop exercises and rhythmic gymnastics.

TLC is fighting back, alleging that Jon has violated his contract with the network by giving unauthorized television interviews.  TLC alleges damages of $30,000, but Jon, through his attorney, challenges the enforceability of the contract and also argues that the contract was terminated when TLC decided to replace "Jon & Kate Plus 8" with "Kate Plus 8."  

Both Jon and Kate intend to continue their television careers, and I think the title of this post provides a name for their next reality television series.

[Jeremy Telman]

Just in Time for Halloween: Stambovsky v. Ackley revisited?

Previously on this blog, Eric Goldman provided a wonderful compilation of resources for Stambovsky v. Ackley -- the haunted house case.  Maybe the West Village will get a haunted house case all of its own.  The Daily News Reports:

A West Village house with a resident ghost is back on the market - just in time for Halloween.

The historic Gay St. property, on the corner of Waverly Place, is rumored to be inhabited by a restless spirit who walks the creaking floorboards at night.

Legend has it a man in top hat and tails has been spotted in the building; some local historians say it is former Mayor Jimmy Walker, who once owned it.

"I wouldn't go in there right now - it's legendary that ghosts live there," said Randy Credico, 54, who has rented an apartment across the street from the haunted house for two decades. "That place would be like moving into 'The Shining.' "

The property, recently put on the market by realtors Corcoran, comes with a $4.2 million price tag - ghosts included.

It was built in 1827 and housed a speakeasy before Walker bought it for his mistress, Betty Compton, in the 1920s.

Puppeteer Frank Paris, who designed the original Howdy Doody, also lived there. Most recently it was home to Scientific Americaneditor Dennis Flanagan and his wife, Barbara.

Records show the Flanagans sold it in 2007. It has been gutted and is now an empty shell.

"I never saw him, I never heard him," Barbara Flanagan said of the ghost. "I never smelled anything - except onions. The stairs were creaky, but you know what? It was a 200-year-old house. Now it really looks like a haunted house - I guess it's a self-fulfilling prophesy." 

Other longtime Gay St. residents say the rumors about the street's uninvited houseguests go with the territory.

"There are ghosts in all of these buildings," said Celeste Martin, who owns and manages the next-door townhouse. "They talk; they're living things these buildings."

Martin said that over the years, she has seen mysterious faces in windows and heard inexplicable noises. "It just happens, it's very spiritual," she said.

A Corcoran real estate agent said the company wasn't aware of the home's storied past.

West Village ghost tour guide and historian Phil Schoenburg doesn't expect a prospective buyer to be deterred by the spirits. 

"Whoever moves in will be creative," he said. "Some people like ghosts. They think it keeps the burglars away."

[Meredith R. Miller]

Nobel Prize in Economics goes to Academics Who Pay Attention to “What Happens in the Real World” and Contracts

Elinor Ostrom and Oliver Williamson were awarded the Nobel Prize in economics earlier this week.  The WSJ describes both of their work has “highlight[ing] areas where standard approaches of economics are inadequate at explaining what actually occurs.”  Further, the WSJ explains (subscription required):

Mr. Williamson's work is driven by two key ideas. The first is that a contractual agreement can never be complete; there are always contingencies that haven't been accounted for. The other is that people act opportunistically within the gray area of contracts to make sure they benefit the most, and that can lead to problems.

Congrats to both economists.

[Meredith R. Miller]

Twelve Year Old Girl Bests Phillies' Slugger

In order to try to pump some energy into their dull sport, baseball announcers are constantly reminding their viewers that they are witnessing history: 

"You saw it here first, folks! That is the first time a third baseman has thrown two balls into the stands in the same inning!  Wow, some lucky fan has a valuable souvenir. . . . Wait a minute, folks.  Our statistician is telling me that this is not the first time that has happened. . . .  Has it ever happened in this ball park?  Oh.  In the third inning? . . .  Un-huh, but was it a day game?. . .  So there you have it folks, we have confirmed that this is the first time in baseball history that a National League third baseman has thrown two balls into the stands in the same inning during an inter-league day game played in an American League park in the year that he is due to become a free agent!  Wow!  Imagine that!"

And so, according to this view of history, Phillies' Slugger Ryan Howard (pictured) made history, as reported on CNN.com, when he hit his 200^th home run in his 658^th major league game, making him the fastest player to reach the milestone, besting the previous record by 48 games.  It is a great achievement, but I’m not sure if it is really one for the history books, even if CNN says it is.  The lucky fan to retrieve the ball was 12-year-old Jennifer Valdivia, who apparently bested her 17-year-old brother in the treasure hunt. 

An official from the home team, the Florida Marlins, then reportedly escorted Jennifer and her brother to the Phillies’ dugout.  There, CNN reports that the following transaction occurred:

A Phillies employee, Jennifer says, told her if she handed over the ball, she could come back after the game, meet the slugger and get him to autograph it. She gave the ball up. In exchange, she got cotton candy and a soda.

Alas, after the game, she and her family went to the Philllies’ clubhouse as directed, but Ryan Howard never showed up.  A security guard gave her a signed ball, but it wasn’t the ball.  Jennifer testified that she was, “like, really sad.”  Jennifer’s mother was more than sad, she was “steamed.”  Eventually, she was also represented by an attorney who, through the alchemical processes in which attorneys specialize, metamorphosed anger and disappointment into a legal claim for $15,000.  The Phillies’ and Howard’s resistance were thereby overcome.  They returned the home run ball to Jennifer and also paid her attorney's fees. 

Jennifer says that she intends to keep the ball and to show it to her kids.  I hope she does, rather than selling it.  As CNN notes, letting fans keep balls is a way of letting them connect with their baseball heroes.  We ought not to put a price tag on being a part of history.

[Jeremy Telman]