ContractsProf Blog

First Circuit Dismisses as Moot Contracts Case with Constitutional Implicatons

In 2006, the U.S. Department of Health and Human Services (HHS) recieved funds under the federal Trafficking Victims Protection Act (TVPA) and contracted with the United States Conference of Catholic Bishops (the Conference) to provide services to trafficking victims.  It did so after issuing a request for proposals (RFP) and receiving submissions only from the Conference and the Salvation Army, both of which are religiously affiliated.  

The Conference insisted that the contract provide that neither the Conference nor any of its sub-contracts would use the TVPA funds to counsel or provide abortions or contraceptive services and prescriptions to trafficking victims.  The panel that reviewed the RFP's deducted points from the Conference's submission because of that condition, but it still rated the Conference's RFP far more favorably than that of the Salvation Army.

The Conference did not provide any direct services to trafficking victims.  Rather, it subcontracted with hundreds of other organizations, which provided services to over 2200 victims over a four-year period.  The Conference entered into agreements with its sub-contractors prohibiting them from using TVPA for any purposes relating to contraception or abortion, but the sub-contractors were not prohibited from using their own funds for those purposes.  

In 2009, the American Civil Liberties Union of Massachusetts (ACLUM) brought suit alleging that the contract violated the First Amendment's Establishment Clause.  The contract expired in 2011, and HHS replaced its program run through the Conferece with a grant program in which the Conference as not involved.  The District Court nonetheless granted ACLUM's motion for summary judgment in March 2012, finding that the claim was not moot because the "voluntary cessation" exception to the mootness doctrine applied.

On January 15, 2013, the First Circuit issued its opinion in American Civil Liberites Union of Massachusetts v. United States Conference of Catholic Bishops, and it reversed.  It remanded the case to the Distrcit Court for an entry of an order of dismissal because the case is rendered moot by the expiration of the contract at issue.  In so doing, the First Circuit noted that the voluntary cessation doctrine has no application where the cessation is unrelated to the litigation.  The exception exists to deter strategic behavior in which a party ceases the challenged behavior only to avoid further litigation and may reasonably be expected to resume the behavior once the threat of litigation has subsided.  There is no likelihood that a contract will be awarded to the Conference in the foreseeable future, as HHS has locked itself into three-year agreements with other organizations under its new grant program.

As long as our first lady has ba-ba-ba-bangs [relevant "analysis" starts about a minute into the video], it seems unlikely that HHS will be contracting with the Conference and that, it seems, is enough to render ACLUM's challenge moot.

[JT]

Lawsuit Against Subway Claims that Size Matters

Via Legal Blog Watch, check out this litigation against Subway (from the AP):

Two New Jersey men sued Subway this week, claiming the world's biggest fast-food chain has been shorting them by selling so-called footlong sandwiches that measure a bit less than 12 inches.

The suit, filed Tuesday in Superior Court in Mount Holly, may be the first legal filing aimed at the sandwich shops after an embarrassment went viral last week when someone posted a photo of a footlong and a ruler on the company's Facebook page to show that the sandwich was not as long as advertised.

At the time, the company issued a statement saying that the sandwich length can vary a bit when franchises do not bake to the exact corporate standards.

Stephen DeNittis, the lawyer for the plaintiffs in the New Jersey suit, said he's seeking class-action status and is also preparing to file a similar suit in Pennsylvania state court in Philadelphia.

He said he's had sandwiches from 17 shops measured — and every one came up short.

"The case is about holding companies to deliver what they've promised," he said.

Even though the alleged short of a half-inch or so of bread is relatively small, it adds up, he said. Subway has 38,000 stores around the world, nearly all owned by franchisees and its $5 footlong specials have been a mainstay of the company's ads for five years.

DeNittis said both plaintiffs — John Farley, of Evesham and Charles Noah Pendrack, of Ocean City — came to him after reading last week about the short sandwiches.

DeNittis is asking for compensatory damages for his client and a change in Subway's practices.

The Milford, Conn.-based firm should either make sure its sandwiches measure a full foot or stop advertising them as such.

He points to how McDonald's quarter-pounders are advertised as being that weight before they are cooked.

Subway did not immediately return a call to The Associated Press on Wednesday.

[Meredith R. Miller]

Can Pet Owners Recover Emotional Damages from Animal Shelter?

Apparently the Supreme Court of Texas will decide this issue in Strickland v. Medlen.  According to the Wall Street Journal:

In 2009, Avery, a spotted mixed-breed dog, escaped from his Fort Worth home and was taken to a city animal shelter where workers promised to hold him until his owners picked him up. Instead, he was put to death.

Avery's owners sued the shelter employee who mistakenly ordered the killing, raising an emotionally charged issue argued Thursday at the Texas Supreme Court: Can people be compensated for the sentimental value of a lost pet?

Texas law awards damages for the "market value" of a lost pet, which is defined as the price the animal would fetch at sale. But it is an open question in Texas whether pet owners can also be compensated for their emotional losses. The issue has split courts in other states.

The case sounds in tort (negligence) but it does in essence allege a breached promise (to hold the dog until the owners picked him up).

This video interview provides a nice overview of the case:

Should damages be assessed based on the dog's market value (tricky to assess - and maybe zero - for a mutt) or intrinsic/sentimental value to his owners?  

Here's a link to the oral argument before the Texas Supreme Court on January 10th.

[Meredith R. Miller]

 

Conde Nast and Writers Rights

The N.Y. Times reports that Conde Nast has issued new contracts to its writers with changes that diminish their right to profits from articles.  Conde Nast is the publisher for magazines like Wired, Vanity Fair and The New Yorker.  (You remember magazines, right?  They’re printed on paper and you can usually find them at airports.  Unlike newspapers, they don’t leave inky residue on your fingers).  Conde Nast writers typically lack job security and benefits, signing one-year contracts – but they are (or were) allowed to keep the rights to their work. These rights could be valuable if an article becomes a movie, like “Argo” or “Brokeback Mountain.”  Under the new contracts, however, Conde Nast has exclusive rights to articles for periods of time ranging from thirty days to one year and option rights where payments to the writer top out at $5K. If the article is turned into a movie, there is also a cap on what writers can receive.

It would be easy for me to demonize Conde Nast given my association with writers.  Yet, it’s no secret that the demand for glossies is diminishing and that publishers need to figure out a way to monetize their content better – otherwise, there won’t be any magazine writers at all.  Perhaps Conde Nast could bargain employee benefits for these rights, the way newspapers do.  Maybe they could increase the cap based on different variables.  Maybe they could lift the exclusivity for certain writers after a period of time (or a designated number of successes).  Maybe they could commission articles that they conceived in-house, so that the work is a traditional work for hire, and the cap isn’t tied to an idea that originated with the writer.  In any event, it’s clear that Conde Nast needs to evolve with the marketplace; what’s not so clear is that this is the way to do it.

[Nancy Kim]

World's #1 Golfer Sued for Breach of Endorsement Contract

Having jumped the shark last week with posts about curricular reform, we have decided to stick with what we know: sports contracts. 

As reported here in the Telegraph, Rory McIlroy (pictured), this year's world #1 golfer, is not Tiger Woods.  In addition, it appears that Mr. McIlroy has been endorsing Oakley sportswar until recently and now wants to jump ship and join team Nike.  Oakley is claiming a right of first refusal and claims that it offered to match Nike's offer to Mr. McIlroy.  He apparently spurned that offer and so is, according to Oakley, in breach of contract.

Oakley is claiming that it is irreparably harmed by the breach and seeks to enjoin Mr. McIlroy from enjoying the benefits of his $200 million Nike agreement.  In the alternative, Oakley is seeking unspecified damages.

Reading between the lines, there do appear to be issues that are of some interest.  Usually a right of first refusal requires the holder of the right to match the competing offer.  But ESPN.com suggests that Oakley was only offering McIlroy $60 million to continue endorsing its products.  Perhaps that amount is equal to the portion of McIlroy's Nike deal that relates to Nike apparel.  In addition, ESPN reports on an e-mail sent by Oakley to McIlroy's agent back in September when contract negotiations were breaking down.  The e-mail read,  "Understood. We are out of the mix. No contract for 2013."

McIlroy will argue that the e-mail suggests that Oakley waived its option to renew its agreement with McIlroy.  Oakley contends that, notwithstanding the September e-mail, negotiations resumed and Oakley claims to have matched Nike's offer.

So, there will be unwonted excitement on the golf tour next year as viewers tune in to see what McIlroy is wearing.

[JT]

Indemnification Clauses in Consumer Contracts Discussed in Sunday New York Times

This week's Sunday New York Times had a strking piece about the prevalance of indemification clauses in standard form contracts.  The article, Daniel Akst's "Those Crazy Indemnity Forms We All Sign," cites to ContractsProf Margaret Jane Radin (pictured), whose book, Boilerplate, we hope to feature in a roundtable discussion sometime early next year.  

Akst provides numerous shocking examples of form contracts through which businesses require "consumers to protect a business or some other party from damage claims and legal fees, sometimes even those arising from their own negligence."  He has come across such indemnification clauses in forms relating to use of sports facilities, publication agreements, use of a couple for Iam's cat food, EULA's for Skype, eBay, and Facebook, summer camp at Bard College, participating in Girl Scouts actitivies and even staying at another person's home.  

I have to admit that I've never paid any attention to such indemnification provisions.  I always assumed that they only applied to indemnification of third parties against harm that I have somehow caused, and since I never imagined that I would do significant harm by, for example, using sports faciltiies, redeeming coupons for cat food, permitting my child to participate in athletic activities or joing Facebook, etc., I never regarded the indemnification provisions as an obstacle.

But Akst suggests that at least in some cases businesses are asking consumers to hold them harmless for their own negligent conduct.  The Indiana Supreme Court struck down such an indemnification clause as unconscionable after it was successfully deployed in the trial court.  As Professor Radin pionts out, that means that, even if these clauses ultimately don't hold up, they are a powerful deterrent to the proper functioning of the tort law system.  Consumers might be intimidated by the threatened invocation of an indemnification provision and not seek redress.  

[JT]

Unilateral Offer for Return of Laptop Enforced to the Tune of $1 Million

As reported here in the New York Post, hip hop artist and producer, Ryan Leslie, offered via YouTube video a $1 million reward for the return of a lost laptop and external hard drive.  

 

Mr. Leslie laptop and an external hard drive were allegedly stolen while he was touring in Cologne.  Plaintiff Armin Augstein claimed to have foudn the missing items while walking his dog.  He returnd the property to the German police and claimed his reward when notified of its existence. 

According to the Post, Mr. Leslie gave two explanations for his refusal to pay the reward.  First, Mr. Leslie suggested that Mr. Augstein may have been in on the heist, since he found the laptop fifteen miles from where the theft allegedly took place.  Second, Mr. Leslie claimed that his duty to pay was contingent on his ability to retrieve certain musical tracks from the external hard drive, something Mr. Leslie claimed he was unable to do. Because Mr. Leslie had returned the hard drive to the manufacturer, the judge informed the jury that they should assume that Mr. Leslie could have retrieved the tracks before doing so.

During jury deliberations, Mr. Leslie's attorneys attempted to settled, but plaintiff refused.  After three hours of deliberation, the jury returned with a decision awarding plaintiff the full $1 million.  His lawyer commented that Mr. Augstein was due not just a "thank you" but an apology.  The law requires only a check.

[JT]

 

Mo Money Mo Problems: Lawyer Up and Cautiously Wade into that Powerball Office Pool

You may have heard that the Powerball payoff is now at a $500+ million record.  There are a few news stories about being careful of what you wish for. (Note to next winner(s): use some of your winnings to hire someone to help you through that oh-so-troubling transition to having so much cash you don't know what to do with it.  And don't forget that you read that advice here).  

As bad as winning tons of money can be, one USA Today article advises that you should have the foresight to lawyer up before you even win anything.  The article warns to be "beware of the sharks swimming in your office lottery pool."  Here's some of the advice:

But if you join an office lottery pool, you may want to consult a lawyer first. Some workers who had thought they struck it rich have wound up in bitter litigation over who was really in the pool and who wasn't.

Lawsuits involving lottery pool winnings have been common enough to create a new set of case law, said Russ Weaver, a University of Louisville law professor. A cursory Google search shows some "Lotto lawyers" across the country who specialize in such disputes.

"Be very careful in advance," Weaver advised. "One thing you don't want to do is end up in litigation. Attorneys will eat up quite a bit of your winnings."

Weaver's advice for people who want to join workplace lottery pools: Make photocopies of the group lottery tickets and distribute them to members before the drawing so there's clear proof which tickets belong to the group and which belong to individuals.

Weaver said you need to be able to show, "Did you make the decision before or after the numbers came out?"

Just this March, a judge ordered Americo Lopes of New Jersey to share a $38.5 million jackpot with his lottery pool despite Lopes' claim that he bought the ticket on his own.

And after a March 30 drawing for a nationwide record-breaking $656 million Mega Millions jackpot, a lottery pool scandal erupted when Mirlande Wilson of Maryland came forward to claim the prize. Members of the lottery pool she participated in at a Baltimore McDonald's where she worked said they were entitled to part of the winnings, but Wilson claimed she bought the ticket on her own.

She later said she lost the ticket, and another group came forward with a winning ticket. Wilson's former co-workers sued her in October, claiming she secretly gave the lottery ticket to the second, smaller group so she would not have to split the money with as many people.

Apparently not all office pool stories end in litigation, which is good for the participants/employees.  Probably leaves the boss unhappy-  a whole lot of new employees to hire.

[Meredith R. Miller]

Two and a Half Men Actor May Have Breached Disparagement Clause [If He Has One]

The show Two and a Half Men is no stranger to contracts drama.  Now there is this news story from Entertainment Weekly about the actor who plays the kid on the show:

Angus T. Jones could be in breach of contract for making a shocking declaration via You Tube today that Two and a Half Men is “filth” and that viewers should stop watching, some industry experts say.

Most actors’ deals typically include disparagement clauses that prohibit them from making negative statements about their show in public, but it’s rare for any studio to enforce such a codicil because what can be considered disparagement is so subjective and, as one high-powered source says, “What moron would stab the show that pays him?” Jones, as well as his costars Ashton Kutcher and Jon Cryer, renewed his contract in May for Men‘s current season. He’s earning a reported $300,000 per episode.

Warner Bros. TV would not comment on whether Jones’ deal includes such a boilerplate clause. And even if it did, it seems unlikely WBTV would act on it considering Jones is only 19 and also plays an integral role on the show, which is currently ranked as TV’s third most-watched comedy. Asks an exec at a competing studio, “What are they going to do, fire him?”

[Meredith R. Miller]

Jersey Shore Star Sues Devotion Vodka for Breach of Contract

From TheHollywoodGossip.Com, here's the situation:

Jersey Shore's Mike "The Situation" Sorrentino filed a breach of contract lawsuit against Devotion Vodka, claiming he was cheated out of millions in a business deal gone awry.

In 2010, Situation agreed to endorse the protein-infused vodka (yes, it's apparently a real thing) and claims he has not been paid the money he's owed for doing so.

According to court documents, Mike's camp claims the company was valued at approximately $4 million then, and is now worth $35-50 million thanks to him.

Sitch received the 8 percent ownership stake, as promised, but Devotion failed to add 2 percent to his share on their one-year anniversary, as promised in the deal.

Additionally, he alleges Devotion failed to provide a $400,000 "buy back" option for his shares on their two-year anniversary and failed to supply him with sales reports.

He feels the company keeps looking for excuses to cut him out and not pay him. Sounds like this deal went down faster than the quality of Jersey Shore Season 6.

Sorrentino is suing for his entire 10 percent share in the company (an estimated worth of up to $5 million) and other damages. Devotion has not responded yet.

[Meredith R. Miller]

London Court Finds Breach of K in Terminating Man for Facebook Post Opposing Gay Marriage in Church

The Independent reports here that Adrian Smith, who was stripped of his managerial post with the Trafford Housing Trust (the Trust), won his breach of contract claim against his employer.  London's High Court found that Mr. Smith had not engaged in "gross miconduct" by posting on this Facebook page his view that gay marriages in the church were "an equality too far."  However, the High Court awarded Mr. Smith less than £100 on his breach of contract claim, despite the fact that his slaray had been reduced as a result of his demotion from more than £35,000 to £21,000.  

The limited damages may have been the only remedy available to Mr. Smith in a court.  He could have taken his case to an Employment Tribunal and gotten more substantial damages, but Mr. Smith claims that he did not bring the case for money.  He did it for the principle involved.  The Trust has apologized to Mr. Smith and claims that it attempted to settle with Mr. Smith for a much higher amount, but Mr. Smith rejected the offer and chose to proceed with his litigation.  

The Trust's action against Mr. Smith is somewhat surprising, given that Mr. Smith does not oppose civil marriage for gay partners.  He only spoke out against church marriages for gay couples  The Independent even quotes a "gay rights campaigner Peter Tatchell" as supporting Mr. Smith: 

This is not a particularly homophobic viewpoint,  In a democratic society, Adrian has a right to express his point of view, even if it is misguided and wrong.

A spokesperson from Stonewall, an LGB rights charity described the Trust's treatment of Mr. Smith as "a little heavy-handed given that he had temperately expressed his point of view, however disagreeable that point of view might be to many.”

[JT]

Tweet This: Social Media Guarantees

From the ABA Journal:

Movie studios and marketers are recognizing the power of social media with new contract clauses for stars with Twitter and Facebook requirements.

Some studios contracts now require actors to make best efforts to use social media to support their work, an unidentified lawyer tells the New York Times. And companies paying for celebrity endorsements are writing social media guarantees into contracts, Advertising Age reported last year.

"We're starting to hear in negotiations, ‘We'd like to include X number of tweets or Facebook postings,' " Peter Hess, co-head of commercial endorsements for Creative Artists Agency, told Advertising Age.

The Times profiled a new company called theAudience that helps manage the social media presence for celebrities, movie marketers and record labels. According to the story, a star with a huge online following has more leverage when negotiating compensation packages to star in a movie or endorse a product.

[Meredith R. Miller]

Former Attorney Sues Stephen King

As reported here by the BloombergBusinessweek, Jay Kramer, former attorney for master of horror, Stephen King, filed suit in New York’s Supreme Court against the author’s agents, Arthur B. Greene and Susan Greene of the Arthur B. Greene Literary Agency, alleging conversion of commissions for work performed, breach of contract, quantum merit/unjust enrichment, and tortious interference.

Stephen King's Very Spooky House in Bangor, ME

 

Kramer was fired on March 30th after having worked for Mr. King for thirty years.  He alleges that the defendants have withheld his commission for several projects that he helped broker, including film and television production projects based on King's writings: Secret Window, The Stand, and 1408, among others.   Kramer alleges that after he was fired, the Greenes “jointly and severally began diverting the sums owed to [him] to their own account.”  Kramer is asking for $1 million in damages.

[Christina Phillips & JT]

Alleged Former Manager's Claims against Britney Spears Dismissed

Sam Lufti, former self-proclaimed manager to Britney Spears (left), filed suit against the “Baby One More Time” pop-star for breach of contract, against her father for assault and battery, and against her mother for defamation. Lutfi alleges he had a multi-year contract with the singer that entitled him to 15% of her income. However, as reported here by the New York Daily News, Lufti was unable to recall ever telling a single person that Spears promised to pay him 15% of her income, nor was he able to produce an adequate written contract. He could only provide a form contract that  he downloaded from the internet, which he claimed he had used to make an oral agreement with Ms. Spears.

As reported on Fox News here, the suit was dismissed on Friday as Mr. Lufti was able to make out any of his claims against Ms. Spears or her parents.

[Christina Phillips & JT]

Can You Trump This Unilateral Contract Offer?

 

Although I am loathe to increase publicity for someone as publicity-hungry as "The Donald," I am confident that our loyal readers will permit me this one post. A few first semester Contracts students sent me a link to the above video and suggested that this was a great example of an offer to enter into a reward-style unilateral contract. I told them I'd oblige them and post it here.  It clearly identifies the one person who can accept, the manner and mode of acceptance, and the performance sought in return for Trump's promise.  In case you've been living under a rock ignoring anything political lately, the performance he seeks is President Obama's submission of passport and college application records (which Trump reportedly believes indicate a place of birth of Kenya).  The offered reward is Trump's promise to donate $5 million to a charity of the president's choice.

The president's fantastic response from The Tonight Show is posted below.

 

Not to be outdone, Stephen Colbert has offered up his own reward, the nature of which was, well...see for yourself (viewer discretion strongly advised).

  

[Heidi R. Anderson]

Sausage or Pepperoni?

On the way in to work this morning, I heard on the radio that Pizza Hut is making an offer for a unilateral contract  (okay, that’s not exactly the way the d.j. put it, but anyway…).  The offer is free pizza for life to anyone who manages to ask either one of the presidential candidates during the town hall debate, “Do you prefer sausage or pepperoni on your pizza?”  The debate will take place October 16 at Hofstra University.  (It turns out that the offer is not actually “free pizza for life” it’s actually a $520/year gift card for up to 30 years).  A silly contest, of course -- but a good example to illustrate the difference between a unilateral and bilateral contract and related issues having to do with effective offers and acceptances.  Often, it doesn’t really matter if an offeree accepts by performing by by promising to perform– but in some cases (i.e. bets, dares), it really does.  I used to refer to the bet in the book, HOW TO EAT FRIED WORMS to explain the difference between a unilateral and bilateral contract (15 worms in 15 days for $50).  This year I might use the more election -season- friendly example of the Pizza Hut offer.

[Nancy Kim]

Challenge to Religious Arbitral Bodies Referred to European Court of Justice

As reported in The Guardian here, a challenge to a series of UK rulings permitting parties to specify the religion of their arbitrator is being referred to the European Court of Justice.  The UK Supreme Court case at issue, Jivraj v. Hashwani, was decided in July 2011.  The two parties to the dispute are members of the Ismaili Muslim community, and they agreed that any disputes involving their joint venture would be decided by an arbitrator who belonged to that same community.  

The parties fell out and, after some complicated litigation, their chosen arbitrator resigned.  Hashwani wanted to replace the Ismaili arbitrator with a retired judge, but Jivraj objected that the nomineed was not Ismaili.  Hashwani contended that the part of the paties agreement specifying the ethnicity of the arbitrator is s unenforceable under European legislation and the Equality Act 2010 because it unfairly discriminates against non-Ismaili arbitrators.  The Supreme Court ruled in Jivraj's favor, finding that the Equality Act does not apply to arbitrators and, even if it did, the requirement that the arbiter be Ismaili was a "genuine occupational requirement" and thus permissible.  

A new, Ismaili arbiter was appointed, but he too resigned, and Hashwani then asked the European Commission to refer the issue to the European Court of Justice.  Given that the dispute is clearly commercial, rather than religious in nature, Hashwani believes that there is no need for the arbitrator to be from the Isamili Islamic community.  The Guardian suggests that an ECJ ruling could have far-reaching consequences for religious arbitration, but it would seem that there is room for a narrow holding that religious arbitration is perfectly appropriate when there are issues of religious law to be adjudicated.  

[JT, with hat tip to my student, Alex Seciuch]

Lawyer Who Forgets About "Offeror is King" Wins, Then Loses, Contest

While teaching the concept of "offeror is king" this semester, I said something like, "I wish I had a crown.  One of you should bring me a crown!  There might be some participation points in it for you if you do."  (It sounded less entitled than that quote but you get the point.)  Shortly thereafter, two students brought me a crown--one from Burger King (of course!) and one from a party supply store.  The first one was just slipped under my door but the second one had "terms of acceptance" attached.  The terms stated that I had to use the crown in class and not disclose the student's name in order to accept.  I did both, and my acceptance was deemed substantively valid and timely by the entire class.  

Another student recently alerted me to a New York Times story about a lawyer victimized by the "offeror is king" concept.  The lawyer, Theodore Scott, reportedly produced a winning video and essay in response to a contest offer from Gold Peak Tea.  The contest winner would receive  $100,000 to take a year off and enjoy life (presumably over some tea).  However, after Mr. Scott's video received the highest number of votes and was declared the grand prize winner, Gold Peak Tea had a change of heart.  Apparently, Mr. Scott had requested votes for his contest entry via a crowdsourcing website on which people, well, request votes for things like this.  Gold Peak Tea took the position that Mr. Scott's online plea for votes violated the contest rules.  Because Mr. Scott accepted in a way other than that specified by the offeror, there was no deal, and a different winner was selected. 

As an interesting side note, many folks appear to be bombarding Gold Peak Tea's Facebook page with comments supporting Mr. Scott, the original winner.  The Facebook response from Gold Peak Tea reads as follows: 

    "Gold Peak appreciates input from the community on our Facebook page. The Take the Year Off     program was created to reward a Gold Peak Tea fan with the opportunity to refresh, renew and     refocus. By devoting more time to his three special needs children and bettering his community with     the development of a local equine therapy program, Michael Simpson will take the year off in a     deserving fashion. We’d like to address some of the feedback shared about the Take the Year Off         promotion and how the winner was determined:

 

Michael Simpson was declared the winner after we fully vetted his submission to ensure all content was in adherence with Official Contest Rules (http://CokeURL.com/TTYORules).

Unfortunately, Theodore Scott was disqualified when it was determined during the verification process that he had attempted to inappropriately induce members of the public to vote for his submission, a violation of Official Contest Rules (http://CokeURL.com/TTYORules).

The House Rules for the Gold Peak Tea Facebook page state that users will not “publish, post, distribute or disseminate any defamatory, infringing, obscene, indecent, misleading or unlawful material or information.” Certain posts addressing the Take the Year Off promotion do not abide by these Rules and have been removed (http://CokeURL.com/HouseRules)."

Gold Peak hopes the members of this community will join us in wishing Michael Simpson well in his year off."

Perhaps the ultimate message, then, is not "offeror is king" but, rather, "read the fine print."

[Heidi R. Anderson, hat tip to Ly Tran]

 

 

 

A New Reward-Style Offer from a Hong Kong Father

A student in my Contracts class shared this story with me regarding a recent offer to enter into a unilateral contract.  Cecil Chao Sze-tsung, a wealthy Hong Kong-based property developer, has offered a $65 million "reward" to the man who first woos his daughter into a heterosexual marriage and away from her current lesbian partner.  

Mr. Chao described his plan to the BBC as follows (he even uses the word "inducement!"):  "It is an inducement to attract someone who has the talent but not the capital to start his own business.  I don't mind whether he is rich or poor. The important thing is that he is generous and kind-hearted."  He further described his daughter, Gigi, as "a very good woman with both talents and looks" who "is devoted to her parents, is generous and does volunteer work."

In an interview with the BBC (scroll down and click play--the file would not embed), Ms. Chao confirmed that her father is indeed "serious" (there goes the Lucy v. Zehmer argument) and that she views his reward offer as an "expression of fatherly love" from the man she talks to "on a daily basis."  Ms. Chao admits that potential suitors face an uphill battle given that she already has committed herself to her longtime partner, Sean Eav.  However, because she is not legally "married," she would not rule out someone successfully accepting her father's offer.  Specifically, when asked by the BBC reporter, "Are you saying it's a waste of time?," she said, "No" and that it would be "inappropriate for me to outright contradict [my father]."  

So, from a ContractsProf perspective, it appears that there is a definite offer that can be accepted by only a single person and only via performance.  What is unclear to me, however, is whether the mere act of marriage from any male is actually what Mr. Chao seeks. In her BBC interview, Ms. Chao says that she does not know whether her father has received any offers but confirms that she has received many offers made directly to her.  So, if a man were to convince Ms. Chao to marry him, and they were to get married, it's not clear (at least not to Gigi Chao) that he would get his $65 million without first convincing Mr. Chao that he's worthy.  Absent clear, unequivocal commitment from Mr. Chao, there may not be a definite offer after all.

[Heidi R. Anderson, hat tip to student Ly Tran]

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Estate of Mario Puzo Seeks Declaration Permitting Publication of Sequels to "the Godfather"

As reported here by Entertainment Weekly, Anthony Puzo (“Puzo”), son of Mario Puzo—well-known author of popular mafia novel “The Godfather”—has alleged, on behalf of the Puzo Estate (the “Estate”), material breach of contract and tortious interference on the part of Paramount Pictures (“Paramount”), and has petitioned a Manhattan federal court to deny Paramount the right to make future Godfather films.

Paramount first brought suit in February of 2012 seeking to enjoin the Estate from publishing sequel novels written by new authors using elements and characters from “The Godfather.”  Paramount sought a court declaration that a 1969 agreement that it entered into with Mario Puzo had granted it all rights and copyright interests, including literary rights and rights to the usage of its characters in any sequel or variation of “The Godfather.” Paramount claims that the only right left to the Estate was the right to publish the original novel.

However, in his Counterclaim, Anthony Puzo alleges that his father deleted the language that would have granted Paramount the exclusive right to publish any versions or adaptations of “The Godfather”, and instead opted to retain those rights himself (rights which, if so retained, now belong to his Estate). In addition, Puzo claims Paramount tortiously interfered with contracts between the Estate and Grand Central Publishing Company and Random House, which have agreed to publish various novels using characters from “The Godfather” written by new authors.

Puzo claims Paramount has attempted to either delay, or prevent entirely, the publishing of the new novels. In light of Paramount’s conduct, Puzo and the Estate seek a termination of the 1969 agreement and, which would then permit the publication of the books at issue and whatever else might follow. In addition to declaratory relief, Puzo seeks actual damages expected to be in excess of $5 million, punitive damages for Paramount’s alleged malicious conduct and costs of the suit.

As reported here on boston.com, the Estate-commissioned novel, “The Family Corleone,” was published in May, but profits from the book are to remain in escrow until the litigation between the parties has been settled.

[Christina Phillips & JT]