ContractsProf Blog

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

A Member of the Law Professor Blogs Network

Thursday, March 26, 2015

Where Congress Won't Act, Private Ordering Fills a Gap

ThermometerToday's New York Times reports that Microsoft will require the companies with which it partners, its contractors and vendors who employ more than 50 workers, to provide their employees who do work for Microsoft with 15 days of annual paid sick leave and vacation time.  Microsoft expects that it will have to increase its pay to these partners to help them with the added expense of the policy.  

As the Times points out, it is a very American approach to the protection of workers' rights.   Congress will not act and only a few state legislatures have done so.  Microsoft, like other large technology companies, can afford to provide decent wages and benefits to its workers.  However, companies increasingly prefer to contract work out to small companies that do not treat their workers nearly as well.  

The Times notes that the gap is not only between skilled computer programmers and unskilled or semi-skilled janitors or groundskeepers but also between whites and African Americans and Latinos.  While the latter, traditionally-underrepresented minorities account for our 3-4% of tech workers, they account for 75% of janitorial and maintenance workers.  Eschewing Google's and Facebook's approaches of replacing contract workers with its own employees, entitled to company benefits, Microsoft has explained its move in a manner also consistent with the great American tradition of enlightened self interest.  Microsoft general counsel explained that: 1) happy workers are more productive; and 2) sick workers who come to work can infect others.  

This move can have a big impact, especially if other major companies follow Microsoft's lead, but I'm not sure that the effects will all be good for workers.  If a contractor has some workers that work for Microsoft and some that don't, the Microsoft jobs suddenly become highly sought-after.  A company may try to stay below the 50-employee threshold to avoid the private regulation.  Or it may divide Microsoft work among its staff (in the interests of internal morale), which might dilute the effects of the regulation.  If you do only 20% of your work for Microsoft, do you only qualify for three days of vacation/sick leave?  It may take a few years (and a few contracts disputes) to work out the kinks.

March 26, 2015 in Commentary, In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

Monday, March 23, 2015

Weekly News Roundup

Graham_SpanierAs reported here in Onward State, Former Penn State University President Graham Spanier (left) is now suing his former employer for breach of contract, while also naming the University and former FBI Director Louis Freeh in a defamation claim.  The allegations stem from the Freeh Report, which Mr. Freeh undertook as a private consultant hired to look into allegations of sexual misconduct within the Penn State athletics program.  The complaint alleges that the University breached its separation agreement with him by publicizing the Freeh Report and through other statements.  Mr. Spanier has set up a website purporting to refute the findings of the Freeh Report.

In a potentially very interesting, bizarre and short(!) opinion, the Delaware Supreme Court weighed in  on a hypothetical case not before it in Friedman v. Khosrowshahi, No. 442,2014 (March 6, 2015).  The Court said that if a stockholder brings suit alleging breach of a stockholder approved plan as a contract, and she seeks recovery under contract law, such a plaintiff would not have to make demand on the board before proceeding in a derivative action because "directors arguably have no discretion to violate the terms of a stockholder adopted compensation plan whose terms cannot be amended without the stockholders’ approval."

MarketWired.com reports that Canadian purchasers of Lenovo computers are seeking $10 million in breach of contract damages for Lenovo's violation of their privacy rights by installing Superfish on their personal computers.  Superfish allegedly makes it possible for third parties to use wireless networks to steal private information off of Lenovo computers.  The Statement of Claim (Canadian, we assume for Complaint) can be found here.

CubsAnd, as Spring training is underway and Opening Day is only a fortnight away, we should mention the ongoing contract dispute between the Chicago Cubs and the parties with whom the team entered into a revenue-sharing agreement relating to rooftop seating across the street from Wrigley Field.  The Cubs want to put up a video board that the Sheffield Avenue property owners claim will block views in violation of the terms of the revenue-sharing agreement.  The latest news on the subject matter can be found on Crain's Chicago Business here.  The Cubs' opposition to plaintiffs' motion for an injunction is here.  As a life-long Cubs fan, I stand by my view that not having to watch the Cubs play actually enhances the value of the seats, but hope springs eternal.

As reported here in the Cranston Patch, a teachers' union is suing a school district for breach of contract and violations of civil and religious rights.  The school district decided to hold classes on religious holidays, including Good Friday, but to permit teachers two days of religious leave each year.  The school district then denied leave to teachers who sought to use their leave on Good Friday.   The community is predominantly Catholic, and it is likely that the school district had not plan for replacing the 200 teachers who applied for leave on Good Friday.  Heavy snows and the large number of snow days this year might also have played a role.

March 23, 2015 in In the News, Recent Cases, Sports | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Facebook Cares about Privacy (for Facebook Executives)

The New York Times reported yesterday on the rise of a new type of non-disclosure agreement in connection with home construction.  Basically, rich people associated with the tech industry are making everyone who works on their homes sign sweeping non-disclosure agreements.  

Times reporter Matt Richtel posed a number of questions to workers outside a home that, court documents from a different case reveal, is being renovated for an undisclosed Facebook executive (pictured).  He was able to extract only answers like, "I'm an electrician working on a house."  As to which house, workers would gesture towards a neighborhood and say "one of the ones over there."  But the mystery was not too difficult to solve, as workers swarmed "like ants" on the home, and they have been working on it for two years.  

Matt Richtel does a great job highlighting the irony of the situation.  He quotes Facebook founder Mark Zuckerberg, commenting on Facebook's privacy policies, as follows:  “People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people.”  And yet, in correspondence disclosed in the other case referenced above, Mr. Zuckerberg's attorney wrote, "Mr. Zuckerberg goes to great lengths to protect the privacy of his personal life.”

There is no necessary contradiction between Mr. Zuckerberg's desire to maintain his own privacy and his belief that other people choose not to protect their own.  But Facebook has been pretty aggressive in eroding privacy, in part through a libertarian paternalism in which all the default choices lead to a surrender of privacy, or through extracting waivers of privacy rights by contractual means that do not rise to the level of meaningful, knowing consent.

So yeah.  This is ironic.

March 16, 2015 in Commentary, In the News | Permalink | Comments (0) | TrackBack (0)

Court Orders German Biologist to Make Good on His 100,000 Euro Challenge

Vaccination_of_girlThe BBC reports that a German biologist, Stefan Lanka, offered 100,000 Euros to anyone who could prove that measles is a virus.  A German doctor, David Barden, gathered evidence from medical studies an claimed his reward.  A court found in Dr. Barden's favor.  Lanka, who is committed to the view that measles is a psychosomatic response to traumatic separations, has vowed to appeal.  It's not clear what Lanka was thinking. He may believe that no proof exists; or he may have believed that no court would be willing to conclude, as a matter of law, that the proof was adequate, and then he could shout to the rooftops that he has not been refuted.

If you would like to learn more about why Mr. Lanka does not believe in viruses, you might find this 20-year-old article on HIV of interest.

March 16, 2015 in In the News | Permalink | Comments (0) | TrackBack (0)

Saturday, March 14, 2015

International Price Fixing Scheme

Secret backroom deals conducted in hotels and private apartments.  Dedicated phone lines.  Market-sharing agreements and price fixing activities.  Million-dollar deals.  Thinking oil, diamonds, shares or foreign exchange?  Think again!  Eleven of the top … yoghurt makers in France, including American-owned Yoplait, were recently fined approx. $200 million for the above activities, which affected about 90% of the French yoghurt market and thus “seriously disturbed” it.  

Yoplait, the majority of which is owned by U.S.-based General Mills, Inc., actually revealed the cartel under a French law that allows companies to self-report their price fixing activities in exchanged for reduced punishment.  So far, the company has received no fines.

Apparently, the French competition authorities are cracking down on deals such as the above.  The French government has also recently started cleaning out, so to speak, the ranks among shampoo, toothpaste and various cleaning product manufacturers.

Price fixing does, of course, disturb the free market forces.  When shopping in this country, it is remarkable how close prices for various everyday items are.  However, that does not mean that prices have been set in any illegal way.  Retailers such as gas stations, which are well-known at least in the Los Angeles area to have almost the same prices all the time, could just stick the head out the window to see how the competitors price their products.  But if mere yoghurt is worth the above risk, one wonders what else may be going on behind the scenes in the global corporate world.  Perhaps it’s better not to know.

March 14, 2015 in Current Affairs, Food and Drink, In the News, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2015

Artistic license

Artistic License

The official portrait of former President Bill Clinton has been completed.  See it here.   It was painted in the “conservative realistic style” … maybe a little too realistic and not sufficiently conservative?

According to the artist, Nelson Shanks, the bluish shadow of a person that you see on the mantelpiece next to Clinton is that of Monica Lewinski in her infamous blue dress.  You got that right: the artist himself has admitted that he purposefully scarred the picture just as the Lewinsky scandal scarred Clinton’s second term.  The artist has apparently caught quite some flak for having done this.  Regardless of artistic freedom and setting aside all thoughts about the scandal per se, what is, after all, at issue here is a contract for artwork depicting a former President of the United States of America.  A bit more respect may have been in order.  This was not any regular client having a portrait done; it’s in effect the entire nation that commissioned this work.  Perhaps a subjective satisfaction clause would have been in order here.  Even if it had been any “regular” client, deliberately depicting one’s paying client in a highly controversial light seems to me to be in questionable taste. 

On the other hand, the argument has been made that if the artist had been held to certain contractual stipulations, the portrait of the 42nd President would have been “stiff and untrue.”  

That’s not the case?  Take a look and judge for yourself.  While much has been made of Clinton holding an actual, gash, newspaper – so retro – the strange positioning of his fingers on his hip looks more bizarre to me.  An indication of his alleged two-sided look at what constituted “the truth” in certain contexts?  To me, it looks more like the V sign for, perhaps, Clinton’s ultimate victory over at least some of the political and other challenges he faced.  

 

 

 

March 5, 2015 in Commentary, Government Contracting, In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2015

California Port and Freshwater Disputes – From Citrus Fruits to Water-Stealing Nudists

Two contracts issues have reappeared recently and both greatly affect the earning abilities of California citrus farmers, among others: the ability to ship products and the ability to grow them in the first place.

The shipping situation was - and still is - affected greatly by the recent employment contract dispute between shipping companies and dockworkers.  Recently, the parties reached a tentative deal on a new five-year contract after months of discussions that ended with a roughly 3% wage increase each year, a hike in pensions and continued union jurisdiction over the maintenance of truck trailers.  While the dispute was going on, many oranges destined for Chinese New Year celebrations overseas rotted away as activities in and around the ports of Los Angeles and Long Beach were impacted.  The docks still aren’t expected to return to normal until well into the season for Valencia oranges and past the season for navel oranges.  Importers of cars, among other things, have also recently expressed their problems keeping up with the demand for imported cars (which is huge in California).

For citrus and other farmers, the shipping problem is exacerbated by the ongoing very severe drought that California is experiencing for the fourth year in a row and that so far has resulted in 41% of the state finding itself in the most severe category of water shortages. 

While farmers up and down California’s agricultural San Joaquin Valley vehemently protest  P1030121
regulations limiting their access to freshwater, others are taking matters into their own hands: they simply steal water.  From the apparently more and more typical situation of subcontractors using fire hydrants without permits to people driving away with water from fire hydrants in trucks, siphoning it off canals, or tinkering with the pipes of their neighbors or local water providers, farmers are not the only ones getting desperate for water. 

Since we are talking California, there has to be a “weird” twist to the story: in the Silicon Valley, a water district has removed irrigation pipes that rangers say allowed … a nudist colony to make unauthorized water diversions from a waterfall. 

There is even a phrase for thieves of this nature: “water bandits.”  This situation is only about to get worse as the drought is predicted at above 80% certainty to become the worst in 1,000 years.    Some cities such as Los Angeles are offering tax initiatives for removing residential lawns.  Nonetheless, Californians will still have to grapple with the contractual and other rights to access to water – saline or otherwise - for some time to come.

February 26, 2015 in Current Affairs, Food and Drink, In the News, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2015

Contract Modifications – Differing Standards for Pop Stars?

2012 American Idol winner Phillip Phillips has lodged a “bombshell petition” with the California Labor Commissioner seeking to void contracts that Phillips now finds manipulative, oppressive, and “fatally conflicted.”  

Before winning season 11 of “American Idol,” Phillips signed a series of contracts with show producer “19 Entertainment” governing such issues as his management, recording and merchandising activities.  These contracts are allegedly very favorable to 19 Entertainment, for example allowing the company as much as a 40% share of any moneys made from endorsements, withholding information from Phillips about aspects of his contractual performance such as the name of his album before it was announced publicly, and  requiring Phillips to (once) perform a live show once without compensation.  19 Entertainment has also lined up such gigs for Phillips as performing at a World Series Game, appearing on “Ellen,” the “Today Show,” and “The View.”

It is apparently not unusual for those on successful TV reality shows to renegotiate deals at some point once their career gets underway.  Phillips claims that he too frequently requested this, but that 19 Entertainment turned his requests down.  Can he really expect them to agree to post-hoc contract modifications?

Very arguably not.  Under the notion of a pre-existing legal duty, a party simply cannot expect that the other party to a contract should have to or, much less, should be willing to change the contractually expected exchange of performances.  This seems to be especially so in relation to TV reality shows where the entire risk/benefit analysis to the producer is that the “stars” may or may not hit it big.  For hopeful stars, the same considerations apply: their contracts may lead them to fame and fortune… or not.  That’s the whole idea behind these types of contracts.  Of course, if industry practice is to change the contracts along the way and if both parties are willing to do so, they are free to do so.  Otherwise, the standards for contractual modifications are probably the same for entertainment stars as for “regular” contractual parties. 

Another issue in this case is whether an “agent” is a company or a physical person.  Under the California Talent Agencies Act (“TAA”), only licensed “talent agents” can procure employment for clients.   Phillips is attempting to apply the TAA to entertainment companies like 19 Entertainment.  If Phillips is successful, the ramifications may be significant for the entertainment industry in which companies very often negotiate deals with performers without taking the TAA into account.  In Citizens United v. Federal Election Commission, the United States Supreme Court famously gave personal rights to corporations, albeit only in the election context.   Time will tell how California looks at the issue of corporate personhood and responsibilities in the entertainment context.

Adjudications under the controversial TAA are notoriously slow and could leave contractual parites in “limbo” for a very long time.  Time and patience is not what Hollywood parties are known to have a lot of, so stay tuned for the outcome of this dispute.

February 23, 2015 in Celebrity Contracts, Current Affairs, In the News, Legislation, Television, True Contracts | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Weekly News Roundup

372px-Lady_Gaga_during_the_ArtRave_Tour
Lady Gaga by nikotransmission

An interesting test for contracts rights of first refusal.  As reported here in Indianapolis Business Journal (IBJ.com), an Indianapolis-based media company, Emmis Communications (Emmis) is suing a Los Angeles radio personality Kurt Alexander (known as "Big Boy").  The latter received a generous offer from iHeartMedia, which Emmis claims to have matched.  Big Boy is jumping ships nonetheless, so Emmis is suing for breach of contract.

According to this account in the Bangor Daily, a Maine author, Tess Garritsen will get to refile her claims against Warner Bros. for breach of contract in connection with the studio's film, Gravity.  A District Court in California dismissed her complaint but has allowed her twenty days to amend and refile.  The complaint is based on a $1 million contract Gerritsen signed in 1999 to sell the book’s feature film rights to a company that was eventually purchased by Warner Bros.  Gerritsen has admitted that the film "is not based on" her book, but she asserts that the book clearly inspired the film.  

According to this story on NJ.com, a Federal District Judge rejected a motion to set aside a $7.3 million jury award in Wendy Starland's suit against record producer Rob Fusari.  The payoff was in consideration of Starland's discovery of Stefani Germanotta, aka Lady Gaga (pictured).

February 16, 2015 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

Mark Zuckerberg in a Modern Mitchill v. Lath?

Mcherry3Friend of the blog, Miriam Cherry (pictured) is quoted in this story about a spat between Facebook CEO Mark Zuckerberg and a former neighbor.  The story seems much creepier than the classic icehouse case, Mitchill v. Lath.   Here, plaintiff Mircea Voskerician claims he offered to sell his house to Zuckerberg after pointing out to Zuckerberg that Voskerician was planning to build a large house that overlooked Zuckerberg's master bedroom.  Voskerician alleges that he sold the property to Zuckerberg at a significant discount in return for an oral promise that Zuckerberg would introduce Voskerician, a real estate developer, to Zuckerberg's Silicon Valley contacts.  

Voskerician alleges that Zuckerberg has not honored his end of the deal.  Zuckerberg seems to be denying there was any such deal.  So the interesting contracts question is whether the parol evidence rule will permit introduction of Voskerician's evidence of the oral promise.  Noting that California is quite permissive in the admission of parol evidence, Professor Cherry suggests that Voskerician will be permitted to introduce the evidence.  

If the newspaper account cited above is accurate, it is hard to imagine how Zuckerberg's introduction would have helped Mr. Voskerician.  It might run something like this: "Hey there, Captain of Virtual Industry!  Let me introduce you to this man, here, who was almost my backyard neighbor.  He threatened to do a Rear Window number on me unless I bought him out.  Would you like to do some business with him?" 

February 11, 2015 in Celebrity Contracts, Famous Cases, In the News | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Weekly News Roundup

Sly Stone
Sly Stone by Chris Hakkens

According to Randall Roberts in the L.A. Times, a Los Angeles Superior Court jury ruled for the Sylvester Stewart (aka funk legend Sly Stone, at left) in his action against his ex-manager Gerald Goldstein, attorney Glenn Stone and Even St. Productions Ltd.  It's the usual story.  Sly Stone suffered from drug addiction and ran into hard times when defendants proposed a commercial association in 1989.  Stone successfully alleged unjust enrichment and breach of contract, claiming that he never saw the money that the enterprise earned through his music.  A jury awarded Stone $5 million.  Even St. Productions filed for bankruptcy in 2013, and the other defendants say that they plan to appeal.  

According to Fox Connecticut, a fraternity member who was suspended from Quinnipiac University in a hazing incident is suing the university and four of its officers for breach of contract.  He alleges that his tuition payment entailed a contractual commitment and that the university did not live up to its end of the bargain because he was not fairly treated.  He has other claims against the university sounding in Connecticut's Unfair Trade Practices Statute and in the implied duty of good faith and fair dealing.

 And . . . at long last, the Steven Salaita saga has made its way into a complaint.  We blogged about this story before here and here and here.  His 39-page complaint alleges statutory violations under 42 USC §§ 1983 and 1985, as well as promissory estoppel, breach of contract, tortious interference, and spoilation of evidence.

February 9, 2015 in Celebrity Contracts, Current Affairs, In the News | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2015

Weekly News Roundup

In Benz-Elliott v. Barrett Enterp., LP, the Tennessee Supreme Court clarified the method for determining the statute of limitations when a case raises multiple claims.  In such cases, the court must determine the gravamen of each claim and the nature of damages sought.  In this case, which involved a sale of property, plaintiff alleged breach of contract and sought contractual damages.  The Supreme Court reversed the Court of Appeals, which had dismissed plaintiff's claim based on a three-year statute of limitations relating to property claims.   The six-year statute of limitations for breach of contracts should apply to plaintiff's claims, which were reinstated.

FootballEric Macramalla reports in Forbes that a Jets fan attempted to sue Bill Belichick, the New England Patriots and the NFL on behalf of a class of season ticket holders for having secretly recorded and then destroyed videotapes revealing signals given by New York Jets coaches (which players variously interpreted as "fumble," "drop the pass" and "miss your defensive assignment," inter alia).  The suit was dismissed because the their seasons' tickets only permitted them to watch the game, which they did.  Macramalla predicts similar suits may follow the great under-inflated ball scandal, which, lets face it, is a great distraction from all the other scandals facing the NFL these days.

February 2, 2015 in In the News, Recent Cases, Sports | Permalink | Comments (0) | TrackBack (0)

Ride Sharing Services: It Just Keeps Getting Better!

NYC_Taxi_in_motion
Photo by The Wordsmith


We have had quite a few posts about Uber, Lyft and other ride-sharing services, but they just keep popping up in the news, and the wrinkles are always unexpected and fascinating.  Saturday's New York Times reported that the companies allow drivers to rate their passengers.  If you get a bad rating, you'd better hail a cab or [shudder] take public transportation.  It's not such a strange thing to be rated by a service-provider you pay, the Times point out.  After all, students pay tuition to attend law school, and yet we grade them.  But of course, students know that going in.  Probably most passengers don't expect to be rated.  What a wonderful century we inhabit -- so many opportunities to pass judgment on perfect strangers!  

And what sort of behavior will get you a bad rating?  It may be simple things like asking the driver to turn the heat/air conditioning/radio up or down.  One rider expressed her angst about being thought insensitive or lacking in interpersonal skills if she took a call or did work while riding.  Even Uber's CEO, one of the few riders with access to his own rating, was downgraded from five stars as a passenger to four.  He attributes the lackluster reviews to work stress.  He blames himself.  "I was not as courteous as I should have been.”  He should watch out.  You can be banned from Uber, which siad in a blog post that it only wants to serve "the most respectful riders."

The article suggests that two-way review systems are inevitable, even though they may be inaccurate.  A comparison of a site that allowed two-way reviews with one that allowed only one-way review found that the two-way system leads to far more positive reviews.  

What goes around comes around.  I would not put it past these companies to monitor their drivers' ratings of passengers.  The company may find its own ways to retaliate against drivers who complain about passengers who do nothing more offensive than behaving like busy people who are getting a ride from a stranger as part of a commercial transaction.

February 2, 2015 in Commentary, In the News, Travel | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

A Contract to Kill but no Intent to

A young Norwegian man has been fined $1,300 for accepting a contract to kill without the intent to follow up on it.  Yes, you read that right: all the authorities could charge this man with was contractual fraud.  Another 21-year old man ordered the killing of a teenage girl who had rejected the man’s romantic advances.  The punishment for the “offeror”?  Two years in prison with most of the sentence suspended because the suspect confessed.

Good thing that these men were caught and convicted of something… sort of a gruesome twist on the old, classic Al Capone story (of course, Capone only pled guilty to tax evasion and prohibition charges).  I know that the Scandinavian countries do not believe in the rehabilitative effects of relatively severe sentences such as those often dished out in the USA, but still...  Two years and $1,300 for an attempted contract on a teenage girl’s head?  That seems too lenient to me. 

January 27, 2015 in Famous Cases, In the News, Miscellaneous, True Contracts | Permalink | TrackBack (0)

Sunday, January 25, 2015

Weekly News Roundup

BasketballAn Ohio appellate court upheld a $1.2 million breach of contract judgment against Kent State's men's basketball coach, Geno Ford.  The judgment enforced a liquidated damages clause entitling Kent State to damages equal to Ford's annual salary ($300,000) multipled by the number of years remaining on his contract at the point of breach.  In Kent State University v. Ford, Coach Ford tried to characterize the liquidated damages clause as a penalty.  The court applied Ohio law to determine whether at the time the contract was entered into: 1) damages were uncertain; 2) the damages provided for in the contract were not unconscionable; and 3) the parties intended for damages to follow a breach.  The court upheld the trial court's determination that the standard was satisfied in this case. Coach Ford can take consolation in the fact that his salary is short of Jim Harbaugh's by an order of magnitude.

PetaPixel.com reports on a wedding photographer who, after charging a couple $6000 to shoot a wedding album, sought an additional $150 for the album cover.  The couple balked, so the photographer is refusing to hand over the photographs and is threatening to charge them an additional $250 "archive fee" if they do not pay up in a month.  PetaPixel draws the following lesson from the story: 

This all goes to show that as a photographer, you should never rely on verbal agreements when it comes to conditions and charges. Always get everything in writing.

Maybe.  The photographer herself has an extremely lengthy blog post about the entire affair in which she claims that everything should have been clear from the written contract.  PetaPixel's story makes it seem like an additional charge was added after the contract had been entered into, and if that's the case, the couple might well have balked whether or not the new terms were in writing.

Contracts Prof/Con Law Prof Randy Barnett, writing at the Volokh Conspiracy picked up by the Washington Postmuses interestingly on the applicability of the contractual duty of good faith to the President's duty to faithfully execute the laws in the Constitution's Take Care clause.  This helps Barnett reconcile his empathy for the President's refusal to enforce federal drug laws in the face of permissive state laws permitting use of marijuana with his opposition to the President's new initiative on immigration.  I've never been persuaded that the contractual analogy is particularly useful in Constitutional interpretation.  Suggesting that the contracts doctrine of "good faith" provides a useful gloss on the Take Care clause strikes me as a stretch, but Professor Barnett is always stimulating.

January 25, 2015 in Commentary, Contract Profs, In the News, Recent Cases, Sports | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2015

In Dog We Trust

Speaking of auctions (see Jeremy's blog below), how about a rug reading "In Dog We Trust" instead of the official motto of both the United States and Florida? 

A sheriff's office in Florida has removed a mat featuring the miswoven lettering.  There have reportedly been several offers to buy the misprinted rug after the error was discovered two months after having been placed at the entrance to the sheriff's office.

Spelling in this country is truly going to the dogs.

January 15, 2015 in Commentary, Current Affairs, In the News | Permalink | TrackBack (0)

Wednesday, January 14, 2015

Your Chance to Own a Piece of Lady Duff

LadyDuffGordon-1919According to The Telegraph, a letter from Lucy, Lady Duff-Gordon (pictured at right) written shortly after her survival of the sinking of the Titanic is going up for auction in Boston on January 22nd.  It is expected to fetch as much as $6000 (but they don't know that we are considering putting the vast resources of the ContractsProf Blog in play).

The letter reads: 

How kind of you to send me a cable of sympathy from New York on our safety.  According to the way we've been treated by England on our return we didn't seem to have done the right thing in being saved at all!!!! Isn't it disgraceful.

Alas, Lady Duff is not referring to the less-than-respectful treatment she received from Judge Cardozo in the case that keeps the Duff name alive, nor is she referring to bad reviews for her 1912 prêt-à-porter show.  

She is referring to allegations that her husband, Cosmo, paid crew members extra to row away from survivors in Lifeboat #1, which held 12 people, although it was designed to hold 40.  An inquiry found no support for the allegations and cleared the Duff-Gordons.   Recently, as reported here in The Telegraph, more letters from the Duff-Gordons were discovered that tell their side of the story. 

January 14, 2015 in Famous Cases, In the News | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2015

Weekly News Roundup

A misplaced comma (or something) cost an Oregon Ducks fan his premium seats to the college football championship game.  According to this report from The Oregonian, a University of Oregon alumnus found premium tickets to the game (which he knew were selling for $4000) for $400 on StubHub.  When, he placed his order, StubHub indicated that he would be charged $16,59.36, but his credit card was charged $16,059.36.  He protested, and StubHub refused to honor the purchase, removing the charge and offering $1600 in StubHub vouchers, which the angry Duck says he will not use.  He blows off some steam in a blog post, with observations about obnoxious terms and conditions.

In a sign of the times, MasterCard has filed suit in the Southern Distroct of New York against Nike, according to this report from Bloomberg.and Oregon Live (you have to go through a short survey to read it), for having poached a few of its cyber-security experts.  MasterCard is suing the employees for breach of contract and Nike for tortious interference.  Nike denies all wrongdoing.

We could not have made this up: The St. Louis Post-Dispatch reports that the Devin James Group (DLG), a public relations firm, is suing another public relations firm, Elasticity.  Apparently, Elasticity hired DLG to help represent the City of Ferguson in the aftermath of the shooting of Michael Brown.  Elasticity fired DLG when it discovered that DLG's owner had a criminal record.  Mr. James was convicted in 2006 for having shot an unarmed man.  He claims he did $50,000 of work for which he has not been paid. 

In another chapter in the dangers of state governments hiring private companies to handle public services, NJ.com reports that Hewlett Packard will refund New Jersey $7.5 million to get out of its contract to deliver a unifed system to administers the state's public assistance program.  The Christie administration and HP agreed last year to suspend work on the project and they entered into a separation agreement in which each side agreed not to sue the other for breach of contract.  The state is now looking for a new partner.  In the meantime, it "continues to hobble along on its 1980s-era mainframe system," according to NJ.com.

Finally, an interesting conflict between a franchise and a large franchisee.  Wendy's is requiring its franchisees to make technology upgrades and renovate stotes.  DavCo, which operates 152 Wendy's restaurants is refusing to do so, claiming that Wendy's lacks the authority to require the changes.  According to the Baltimore Sun, Wendy's has filed suit to terminate DavCo's franchises.

January 12, 2015 in Food and Drink, Government Contracting, In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

A Bad Taste in One’s Mouth

On January 7th, a federal judge struck down a ban on foie gras that had been in effect since 2012.  The judge was of the opinion that the federal Poultry Products Inspection Act preempts the California ban.  This Act gives the U.S. Department of Agriculture the sole jurisdiction over the “ingredients requirements” of poultry products. 

The judge seems to have forgotten about the federal Animal Welfare Act’s requirements for the humane treatment of farm animals as well as states’ ability to ban the sale of the products of animal cruelty.  The California Attorney General’s office is reviewing the decision for a possible appeal of the law, which was upheld in previous litigation.

Foie gras is, without a doubt, cruel to animals.  To produce the alleged delicacy, geese and ducks are “force-fed a corn mash through a metal tube several times a day so that they gain weight and their livers become 10 times their natural size. Force-feeding sometime injures the esophagus of the bird, which may lead to death. Additionally, the fattened ducks and geese may have difficulty walking, vomit undigested food, and/or suffer in extreme confinement."  Do we as consumers still have a right to buy such a product even if it tastes very good?  No, according to at least California state law.

How anyone could make themselves eat this product is beyond my comprehension.  I confess that I am an animal lover and environmentalist.  I do personally believe in those core values.  However, I am quite far from an extremist and respect, to a very, very far extent, the opinions of the vast majority of other people.  Heck, I am not even a vegetarian (I try to at least buy free-range products).  But under notions of both positive law – state and/or federal – and natural law, this is where the buck must stop.  There must be limits to what we can do in the name of obtaining a gourmet experience, especially when it comes at such a high price of extreme suffering by our living, sentient creatures. And if consumers cannot draw such lines themselves, courts and legislatures must.  In the words of Mahatma Gandhi, “the greatness of a nation and its moral progress can be judged by the way its animals are treated.”  More than a dozen countries around the world have outlawed the production of foie gras.  In this respect, the United States is not great.  This case leaves a bad taste in my mouth and, I hope, in yours as well.

January 8, 2015 in Commentary, Current Affairs, Famous Cases, Food and Drink, In the News, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Monday, January 5, 2015

Weekly News Roundup

Thanks to the Hattiesburg Patriot, we have a pdf of a decision from the Mississippi Chancery Court striking down a public contract as unconstitutional.  In January 2014, the City of Hattiesburg (the City) entered into a $137 million contract with Groundworx, LLC (Groundworx) for a wastewater treatment system.  In August, the City terminated the contract due to Groundworx's alleged failure to secure financing for the project.  Thomas Blanton intervened, alleging that the contract violates Article VII, Section 183 of Mississippi's constitution, which prohibits the government from lending credit in aid of a private business, and the Due Process clauses of both the Mississippi constitution and the U.S. Constitution's 14th Amendment.  The Chancellor held that the contract was tantamont to the City

Alex_Rodriguez
Flickr photo by Keith Allison 

lending its credit to Groundworx for a public project over which it had no effective control.  It thus violated the Section 183 and both due process clauses and was void ab initio.

As if Alex Rodriguez (pictured at right) did not have enough troubles already, the New York Daily News is wishing him a "Happy Sue Year" and reporting that A-Rod's ex-wife's brother is suing A-Rod for breach of a partnership agreement relating to the sale of Miami real estate.  

Our Uber-lawsuit coverage continues this week with this story from the St. Louis Post Dispatch.  The story reports on a planned class action alleging that Uber breached a contract with consumers by advertising that it shares 20% of fares with drivers as tips when in fact Uber keeps far more than that for itself.  The latest development is just a discovery battle that Uber lost.  It will have to provide relevant e-mails from Uber's CEO, Travis Kalanick.

January 5, 2015 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)