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Friday, May 9, 2014

High School Students Across the U.S. Display Negotiation Skills: Retweets for #NoFinal

Andrew Muennink, a senior at Round Rock  High School in Texas, struck a deal with Cindy House, his art teacher: if he gets 15,000 retweets of a photo by noon on May 23, she will not require the students to take the art final exam.  The photo depicts them shaking on the deal and the writing on the blackboard behind them sets out the key terms:

Screen Shot 2014-05-09 at 10.19.23 AM

Apparently, Muennink's first offer to Ms. House was 5,000 retweets, but they ultimately struck the deal at 15,000.  What if he reaches 15,000?  Then, Muennink says, "I'd be the man!"  As of this writing, he's reached 6,117 retweets.

Muennink's bargain has inspired high school students across the U.S. - with some negotiating a better deal (10,000 retweets for no final) and others negotiating a much more difficult goal (250,000 tweets - and this student really needs the retweets because she "barely went to . . . class").

These students were apparently concerned about the statute of frauds and included signatures on the blackboard:

Screen Shot 2014-05-09 at 10.25.54 AM

If you are inclined to retweet and save a high school student from a final, the hashtag is #nofinal.

May 9, 2014 in E-commerce, In the News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Vermont First State to Require Labeling of GMOs

By Myanna Dellinger

On May 8, 2014, Vermont became the first state in the nation to require foods containing GMOs (genetically modified organisms) to be labeled accordingly.  The law will undoubtedly face several legal challenges on both First Amendment and federal pre-emption grounds, especially since giant corporate interests are at stake.

Scientists and companies backing the use of GMOs claim that GMOs are safe for both humans and the environment.  Skeptics assert that while that may be true in the short term, not enough data yet supports a finding that GMOs are also safe in the long term.

In the EU, all food products that make direct use of GMOs at any point in their production are subjected to labeling requirements, regardless of whether or not GM content is detectable in the end product.  This has been the law for ten years. 

GMO stakeholders in the United States apparently do not think that we as consumers have at least a right to know whether or not our foods contain GMOs.  Why not, if the GMOs are as safe as is said?  A host of other food ingredients have been listed on labels here over the years, although mainly on a voluntary basis.  Think MSGs, sodium, wheat, peanuts, halal meat, and now gluten.  This, of course, makes perfect sense.  But why should GMOs be any different?  If, for whatever reason, consumers prefer not to eat GMOs, shouldn’t we as paying, adult customers have as much a say as consumers preferring certain other products? 

Of course, the difference here is (surprise!) one of profit-making: by labeling products “gluten free,” for example, manufacturers hope to make more money.  If they had to announce that their products contain GMOs, companies fear losing money.  So why don’t companies whose products don’t contain GMOs just volunteer to offer that information on the packaging?  The explanation may lie in the pervasiveness of GMOs in the USA: the vast majority (60-80%, depending on the many sources trying to establish certainty in this area) of prepared foods contain GMOs just as more than 80% of major crops are grown from genetically modified seeds.  Maybe GMOs are entirely safe in the long run as well, maybe not, but we should at least have a right to know what we eat, it seems.

Bon appétit!

 

May 8, 2014 in Commentary, Current Affairs, Food and Drink, In the News, Legislation, Science, True Contracts | Permalink | Comments (0) | TrackBack (0)

Monday, May 5, 2014

Sperm Donors and Custody

Sperm-eggSunday's New York Times had a lengthy article on a custody battle that has raged for two years.  Danielle Schreiber, who runs a massage practice in California, and Jason Patric, a known but not well-known actor, conceived a child through articifial insemination in 2009.  The two had dated for a while, but they were not a couple at the time of the insemination, which resulted in a son named Gus.

Mr. Patric was a part of Gus's early life, as the baby rekindled the romance between the biological parents.  The couple never co-habited, but Mr. Partric claims that he played a parentral role until 2012 when the pair split up.  Mr. Patric filed a paternity suit and sought shared custody.  For a while thereafter, Ms. Schreiber allowed Mr. Patric to visit Gus, but then she cut off such visits.  

The Times story does not make especially clear what the case turns on.  California law is clear, according to the Times, that sperm donors are not treated as "natural fathers" unless a written agreement so provides.  The Times states that the parties had no such agreement, but did they have any agreement at all?  Both parties seem to have considered their options carefully, and both clearly have the means to consult attorneys when they need to.  Is it really possible that they did not imagine anything could possibly go wrong?  Did they not discuss the possibility that Mr. Patric would want to be invovled in his son's life, even if not as a father?  Not that a contract could eliminate all possible legal difficulties going forward, but they certainly could have used a writing to clarify their intentions at the time the child was conceived.

 In any case, it does not seem from the Times' account that Mr. Patric's custody and paternity claims are based solely on the fact that he was the sperm donor.  Rather, he seems to be claiming that he acted as a parent during the child's first years and that the child regarded him as his father.  Ms. Schreiber won at the trial level, and Mr. Patric has appealed; not only in the courts, but also through the media.

I'm have trouble embedding the videos, so you can follow this link to watch Mr. Patric tell his side of the story to Katie Couric and this link to watch Ms. Schreiber tell her side of the story on the Today Show.

May 5, 2014 in In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 30, 2014

Handling Shipping and “Handling” Charges

By Myanna Dellinger

A class-action lawsuit filed recently against Amazon asserts that the giant online retailer did not honor its promise to offer “free shipping” to its Prime members in spite of these members having paid an annual membership fee of $79 mainly in order to obtain free two-day shipping.

Instead, the lawsuit alleges, Amazon would covertly encourage third-party vendors to increase the item prices displayed and charged to Prime members by the same amount charged to non-Prime members for shipping in order to make it appear as if the Prime members would get the shipping for free.  Amazon would allegedly also benefit from such higher prices as it deducts a referral fee as a percentage of the item price from third-party vendors. 

The suit alleges breach of contract and seeks recovery of Prime membership costs for the relevant years as well as treble damages under Washington’s Consumer Protection Act.  Most states have laws such as consumer fraud statutes, deceptive trade practices laws, and/or unfair competition laws that can punish sellers for charging more than the actual costs of “shipping and handling."  In some cases that settled, companies agreed to use the term “shipping and processing” instead of “shipping and handling” to be more clear towards consumers. 

On the flip side of the situation is how Amazon outright prevents at least some private third-party vendors from charging the actual shipping costs (not even including “handling” or “processing” charges).  For example, if a private, unaffiliated vendor sells a used book via Amazon, the site will only allow that person to charge a certain amount for shipping.  As post office and UPS/FedEx costs of mailing items seem to be increasing (understandably so in at least the case of the USPS), the charges allowed for by Amazon often do not cover the actual costs of sending items.  And if the private party attempts to increase the price of the book even just slightly to not incur a “loss” on shipping, the book may not be listed as the cheapest one available and thus not be sold. 

This last issue may be a detail as the site still is a way of getting one’s used books sold at all whereas that may not have been possible without Amazon.  Nonetheless, the totality of the above allegations, if proven to be true, and the facts just described till demonstrate the contractual powers that modern online giants have over competitors and consumers. 

A decade or so ago, I attended a business conference for other purposes.  I remember how one presenter, when discussing “shipping and handling” charges, got a gleeful look in his eyes and mentioned that when it came to those charges, it was “Christmas time.”  When comparing what shipping actually costs (not that much for large mail-order companies that probably enjoy discounted rates with the shipping companies) with the charges listed by many companies, it seems that not much has changed in that area.  On the other hand, promises of “free” shipping have, of course, been internalized in the prices charged somehow.  One can hope that companies are on the up-and-up about the charges.  Again: buyer beware.

April 30, 2014 in Commentary, Current Affairs, E-commerce, Famous Cases, In the News, True Contracts | Permalink | Comments (0) | TrackBack (0)

New York Times Report on Litigation Challenging an Allstate Waiver Agreement

Allstate_storeAccording to this article in today's New York Times, 6,200 Allstate employees, who joined its Neighborhood Agents Program in the 1980s and 1990s, were called into meetings in 1999 at which they were told that they would now proceed as independent contractors, forfeiting health insurance, their retirement accounts or profit-sharing, and terminating the accrual of their pension benefits.   If they wanted to continue to sell Allstate insurance, they had to sign waivers in which they agreed not to sue the insurer.  Thirty-one agents signed but have now sued nonetheless, alleging age discrimination and breach of contract.

They sued thirteen years ago, but the case is still far from over.  They are still seeking class certification.  The Times article indicates that cases such as this one are hard to win, but the judge in this case has already stated that those that signed the waivers were made substantially worse off, that Allstate's claimed corporate reorganization was actually a disguised staff reduction, and that Allstate's conduct was "self-serving and, from most perspectives, underhanded."  In addition, Allstate seems to have misrepresented to the agents the consequences of not signing the waiver, having told the agents that they would be barred for life from soliciting business from their former customers.  Allstate has already paid $4.5 million to settle an age-discrimination claim brought by the EEOC on behalf of 90 of the agents.

April 30, 2014 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Interesting Australian High Court Damages Decision

150px-Australian_Coat_of_ArmsI just stumbled upon an interesting damages decision from the Australian High Court in December. In a thouroughly modern context (sale of frozen sperm), it raises the age-old question of how to measure expectation damages when the buyer is able to recoup the costs of replacement in a forward contract.

Plaintiff and Defendant are doctors specializing in “assisted reproductive technology services.” For just over $380,000 (AUD), Plaintiff agreed to buy the assets of a company operating a fertility clinic, a company controlled by Defendant. The asset sale included a stock of frozen sperm. The company warranted that the identification of the donors of that sperm complied with specified regulatory guidelines. (Defendant guaranteed the company’s obligations under the contract).

The stock of sperm delivered contained 1,996 straws that were in breach of warranty. Specifically, it did not comply with regulatory requirements concerning consents, screening tests and identification of donors. For this reason, the sperm was unusable by Plaintiff. Plaintiff was unable to find suitable replacement sperm in Australia and eventually found only one alternative source of sperm from a U.S. supplier for over $1.2million (AUD). Plaintiff “accepted that ethically she could not charge, and in fact had not charged, any patient a fee for using donated sperm greater than the amount [she] had outlaid to acquire it.”

The question before the High Court: how should Plaintiff’s damages for breach of warranty be calculated? The primary judge assessed the damages as the amount that the Plaintiff would have had to pay the U.S. company (at the time the contract was breached) to buy 1,996 straws of sperm. On appeal, the Court of Appeal held that the Plaintiff should have no damages because the Plaintiff was able to pass on the increased costs to her patients. The Court of Appeal held that the Plaintiff had thus avoided any loss she would otherwise have sustained.

The parties did not dispute damages should be "that sum of money which will put the party who has been injured ... in the same position as he [or she] would have been in if he [or she] had not sustained the wrong for which he [or she] is now getting his [or her] compensation or reparation.” Nor did they dispute that the Plaintiff was entitled to be put in the position she would have been in had the contract been performed. The parties disputed how these principles should be applied to this particular case.

JusthayJustice Hanye of the High Court identified the difficulty as stemming from a failure to identify what “loss” was being compensated. He identified three different forms of “loss”:

First, there might be a loss constituted by the amount by which the promisee is worse off because the promisor did not perform the contract. That amount would include the value of whatever the promisee outlaid in reliance on the promise being fulfilled. Second, the loss might be assessed by looking not at the promisee's position but at what the defaulting promisor gained by making the promise but not performing it. Third, there is the loss of the value of what the promisee would have received if the promise had been performed. Subject to some limitations, none of which was said to be engaged in this case, damages for breach of contract must be measured by reference to the third kind of loss: the loss of the value of what the promisee would have received if the promise had been performed.

After a nod to Fuller and Purdue, Justice Hayne explained how to value what Plaintiff should have received:

Under the contract which the [Plaintiff] made, she should have received 1,996 more straws of sperm having the warranted qualities than she did receive. The relevant question in the litigation was: what was the value of what the [Plaintiff] did not receive? The answer she proffered in this Court was that it was the amount it would have cost (at the date of the breach of warranty) to acquire 1,996 straws of sperm from [the U.S. company]. That answer should be accepted.

The answer depends upon determining the content of the unperformed promise. The answer does not depend upon whether the contract can be described as one for the sale of goods or for the sale of a business. How much the [Plaintiff] paid for the benefit of the promise is not relevant. It does not matter whether the value of what she did not receive was more than the price she had agreed to pay under the contract or (if it could have been determined) the price she had agreed to pay for the stock of sperm. The extent to which the [Plaintiff] could have turned the performance of the promise to profit would be relevant only if the [Plaintiff] had claimed for loss of profit. She did not. She sought, and was rightly allowed by the primary judge, the value of what should have been, but was not, delivered under the contract.

As for mitigation, the Justice wrote:

As already noted, however, the Court of Appeal concluded that the [Plaintiff] had mitigated her loss by buying replacement sperm from [the US. Company]. In respect of "the loss of each straw of replacement sperm actually sourced from [the U.S. company]" before the date of assessment of damages, Tobias AJA concluded that the chief component of the [Plaintiff’s] "loss" would be "the sum (if any) representing that part of the overall cost of acquisition of that straw not recouped from a patient". And in respect of "the residue of the 'lost' 1996 straws over and above those in fact replaced by [U.S.] sperm up to the date of trial", Tobias AJA concluded that "the appropriate course would have been to assume that [the Plaintiff] would continue to source straws of donor sperm from [the U.S. company] at a cost consistent with that which had prevailed since August 2005, and that she would continue to recoup from patients the same proportion of that cost as she had done in the past". On this footing, Tobias AJA concluded that the [Plaintiff’s] damages in respect of straws not "replaced" would be "the aggregate of the discounted present value of the un recouped balances (if any) of that cost as at the date of their assessment" (emphasis added).

Two points must be made about this analysis. First, the calculations described would reveal whether, and to what extent, the [Plaintiff] was, or would be, worse off as a result of the breach of warranty. That is, the calculations of the net amount which the [Plaintiff] had outlaid, and would thereafter have to outlay, would reveal the amount needed to put the [Plaintiff] in the position she would have been in if the contract had not been made. The calculations would not, and did not, identify the value of what the [Plaintiff] would have received if the contract had been performed. Second, the reference to mitigation of damage was apt to mislead. In order to explain why, it is necessary to say something about what is meant by "mitigation" of damage.

For present purposes, "mitigation" can be seen as embracing two separate ideas. First, a plaintiff cannot recover damages for a loss which he or she ought to have avoided, and second, a plaintiff cannot recover damages for a loss which he or she did avoid. * * *

The [Plaintiff’s] subsequent purchases and use of replacement sperm left her neither better nor worse off than she was before she undertook those transactions. In particular, * * * the [Plaintiff] obtained no relevant benefit from her subsequent purchases of sperm. The purchases replaced what the vendor had agreed to supply.

The purchase price paid for the replacement sperm revealed the value of what was lost when the vendor did not perform the contract. But the commercial consequences flowing from the [Plaintiff’s] subsequent use of those replacements would have been relevant to assessing the value of what should have been supplied under the contract only if she had obtained some advantage from their use, or if she had alleged that the replacement transactions had left her even worse off than she already was as a result of the vendor's breach. If she had obtained some advantage, the value of the advantage would have mitigated the loss she otherwise suffered. If she had been left even worse off (for example by losing profit that otherwise would have been made), that additional loss may have aggravated her primary loss. But the [Plaintiff] was not shown to have obtained any advantage from the later transactions and she did not claim that they had left her any worse off. Those transactions neither mitigated nor aggravated the loss she suffered from the vendor not supplying what it had agreed to supply. The value of that loss was revealed by what the [Plaintiff] paid to buy replacement sperm from [the U.S. company].

Showing that the [Plaintiff] had charged, or could charge, third parties (her patients) the amount she had paid to acquire replacement sperm from [the U.S. company] was irrelevant to deciding what was the value of what the vendor should have, but had not, supplied. If the contract had been performed according to its terms, the [Plaintiff] would have had a stock of sperm having the warranted qualities which she could use as she chose. She could have stored it, given it away or used it in her practice. In particular, she could have used it in her practice and charged her patients nothing for its supply. But because the vendor breached the contract, the [Plaintiff] could put herself in the position she should have been in (if the contract had been performed) only by buying replacement sperm from [the U.S. company]. Whatever transactions she then chose to make with her patients are irrelevant to determining the value of what should have been, but was not, provided under the contract.

Thus, Justice Hayne, joined by Justices Crennan and Bell, allowed Plaintiff’s appeal and ordered the she receive damages on the terms she sought. Justice Keane agreed with the result. Justice Gageler did not.

Stephen-gagelerJustice Gageler would have dismissed the appeal. He wrote:

The appropriate measure of [the Plaintiff’s] loss is so much of the cost to [the Plaintiff] of sourcing 1,996 straws of replacement sperm for the treatment of her patients as she had been, and would be, unable to recoup from those patients. That measure, adopted by the Court of Appeal, is appropriate because it yields an amount which places [the Plaintiff] in the same position as if the contract had been performed so as to provide her with the expected use in the normal course of her practice of 1,996 straws of the frozen sperm delivered to her by the company.

To [the Plaintiff’s] protest that adoption of that measure leaves her without an award of damages in circumstances where the company has been found to have breached its warranty, the answer lies in the way she has chosen to put her case. She has made a forensic choice to eschew the measure which, together with the Court of Appeal, I would hold to be the appropriate measure. 

Clark v. Macourt, [2013] HCA 56 (Dec. 18, 2013).

April 23, 2014 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, April 21, 2014

Blog 1, General Mills 0

On Thursday, we posted about General Mills' new arbitration policy.  

On Friday, the blog was disabled by a series of Denial of Service attacks.

Coincidence?

Certainly.

Still, on Saturday, the New York Times reported that General Mills has retracted its new arbitration policy.  In short, we win.  A company spokesman was quoted in the Times saying, “Because our terms and intentions were widely misunderstood, causing concerns among our consumers, we’ve decided to change them back to what they were . . . .”  

In a blog post, General Mills strikes a slightly different tone  The company still claims that its terms were "misread."  The company's lawyers state: 

At no time was anyone ever precluded from suing us by purchasing one of our products at a store or liking one of our Facebook pages. That was either a mischaracterization – or just very misunderstood. 

I have to admit that I am one of the parties who "misunderstood" their terms as having been broadly drafted so as to be reasonably construable to cover just about any interaction with General Mills, its websites and its products.  So I (and everyone else who looked at the policy) may have been mistaken in its meaning.  Still, in short, we win.

In any case, the company acknowledges that its new policies went over like a lead balloon.  General Mills claims to have listened to the firestorm of criticism and therefore apologizes.  It's a real apology too -- none of this "I'm sorry if you were upset by your misunderstanding of our intent" or "I'm sorry if I unintentionally hurt anyone in any way."  The company states that it is sorry that it "even went down this path."  

HoffmanHowever, having issued the apology, the company can't quite let it go.  The blog post points out that arbitration clauses are widespread and simply provide a cost-effective means of resolving legal claims.  

As Bob Sullivan points out," if arbitration is so great, why not make it voluntary instead of mandatory?"  I suspect that the answer has a lot to do with the class action waivers that now routinely accompany binding arbitration clauses.

UPDATE: A very insightful blog post on Concurring Opinions from Temple's Dave Hoffman (pictured).

April 21, 2014 in In the News | Permalink | Comments (1) | TrackBack (0)

Thursday, April 17, 2014

General Mills Leads the Way (Into Compelled Arbitration)

According to this article in today's New York Times, General Mills has added language to its website designed to force anyone who interacts with the company to disclaim any right to bring a legal action against it in a court of law.  If a consumer derives any benefit from General Mills' products, including using a coupon provided by the company, "liking" it on social media or buying any General Mills' product, the consumer must agree to resolve all disputes through e-mail or through arbitration.

Old Mill

The website now features a bar at the top which reads:

We’ve updated our Privacy Policy. Please note we also have new Legal Terms which require all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration. For more information on these changes, please click here

The Legal Terms include the following provisions:

  • The Agreement applies to all General Mills products, including Yoplait, Green Giant, Pillsbury, various cereals and even Box Tops for Education;   
  • The Agreement automatically comes into effect "in exchange for benefits, discounts," etc., and benefits are broadly defined to include using a coupon, subscribing to an e-mail newsletter, or becoming a member of any General Mills website;
  • The only way to terminate the agreement is by sending written notice and discontinuing all use of General Mills products;
  • All disputes or claims brought by the consumer are subject to e-mail negotiation or arbitration and may not be brought in court; and
  • A class action waiver.

The Times notes that General Mills' action comes after a judge in California refused to dismiss a claim against General Mills for false advertising.  Its packaging suggests that its "Nature Valley" products are 100% natural, when in fact they contain ingredients like high-fructose corn syrup and maltodextrin.  The Times also points out that courts may be reluctant to enforce the terms of the online Agreement.  General Mills will have to demonstrate that consumers were aware of the terms when they used General Mills products.  And what if, when they did so, they were wearing an Ian Ayres designed Liabili-T?

April 17, 2014 in Commentary, E-commerce, Food and Drink, In the News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Giant Pizza Challenge [File this in: Unilateral Contracts]

ImgresRunning out of examples of offers to enter into a unilateral contract?  This story from California comes just in time and, like all good ideas, it was inspired by television:

A pizza parlor specializing in take-out business is offering a special challenge to any two people who choose to eat in the dining room: A check for $2,500 if they can finish a giant pizza in less than an hour.

"I call it Da Big Kahuna," said Glenn Takeda, owner of 8 Buck Pizza, whose $60 extra, extra, extra large pizza is 30 inches in diameter and weighs 15 pounds.

The 8.5 lbs of dough is covered with 3.5 lbs of cheese and a choice of any three toppings, one of which must be meat.

Takeda got the idea for Da Big Kahuna challenge in January from watching other food-eating contests on TV.

He initially offered $100 cash per person plus a year's worth of free pizza, but got no takers.

Contestants started lining up when Takeda boosted the prize to $2,500. So far, 15 teams have taken -- and failed -- the challenge.

Among those who have left the table without finishing Da Big Kahuna is well-known competitive eater Naader Reda, who drove more than 400 miles from his home in Joshua Tree Wednesday to tackle the monster pizza with eating partner John Rivera.

"John and I make a great team, but that day, the 15-pound Big Kahuna was too much," Reda tweeted to News10. "It is a very tough opponent."

Reda was equally gracious in his review of the pizza's quality.

"It was the thickest, doughiest pizza I've ever encountered. It was also one of the two or three most delicious pies I've sampled," he wrote.

Takeda said Reda and Rivera came as close as anyone to finishing Da Big Kahuna, and admits he was preparing to part with $2,500.

"I swear I thought they were going to do it," he said.

At the end of the hour, the pair left with enough pizza to fill a 14-inch takeout box.

Based on Wednesday's close call, Takeda knows it's only a matter of time before he's forced to write the check.

"I'm sure somebody will surface," he said.

Not a bad marketing strategy.  So long as Takeda sells about 42 of these $60 pizzas, he's got the $2500 prize covered.... and he's already half way there.  Though, that assumes a 100% profit margin.  We can call his cost per pizza "advertising" - and at a really good price given that his business is already all over the Internets.

[Update: I thought more about this and perhaps it isn't a unilateral contract but, rather, a bilateral contract with a condition.  Customer pays $60 in exchange for a large pizza and the opportunity to win the $2500. The condition precedent to winning the $2500 is eating the whole pizza in an hour.  If the customer did not have to pay for the pizza, then it looks more like a unilateral contract.]

April 3, 2014 in Food and Drink, In the News | Permalink | Comments (2) | TrackBack (0)

Friday, March 21, 2014

Op-Ed on Mandatory Arbitration (and Cheerleader Contracts)

Nan Aron, President of the Alliance for Justice, has an op-ed in SFGate supporting the Arbitration Fairness Act.  It begins with the attention-grabbing question:

What do a Bay Area restaurant, customers of Instagram and the Oakland Raiders cheerleaders have in common? All of them have been - or could become - victims of a perversion of the American system of justice that could deny them their chance to stand up for their rights in court.

The practice is known as forced arbitration. Thanks to a series of bad decisions by the U.S. Supreme Court and unfair corporate practices, more and more Americans are required to use it. Forced arbitration turns dispute resolution into a privatized system of dispute suppression that is supplanting our justice system and letting corporations ignore laws that protect consumers and workers.

Aron explains that the Raiderette cheerleaders have attempted to sue the Raiders for wage violations but the cheerleader contract has an arbitration clause requiring them to take their dispute to the Commissioner of the NFL.  The op-ed concludes:

The Consumer Financial Protection Bureau is considering barring forced arbitration in consumer services contracts - and it should. But forced arbitration is also spreading to employment contracts, like the one between the cheerleaders and the Raiders, threatening workers' ability to sue over race, sex or age discrimination and other workplace injustices.

There is a solution: The Arbitration Fairness Act, now pending in Congress, would bar forced arbitration in employment, antitrust and civil rights cases as well as consumer disputes. It would reopen the courthouse doors to millions of Americans and level the legal playing field for the cheerleaders, who, like every American, deserve a fair shot at justice.

I agree with Aron's conclusion and I support the Arbitration Fairness Act, but I am struck by the shift in the political framing of pre-dispute arbitration -- from "mandatory" to "forced."   That seems a bit hyperbolic to me.

Anyway, here's a link to the full op-ed.

March 21, 2014 in In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 11, 2014

Probably Not the Best Time to Have Ukraine Owe you $3 Billion

According to Russian media, China has sued Ukraine for $3 billion, claiming Ukraine breached a loan-for-grain contract. 

Under the loan-for-grain contract signed in 2012, the Export-Import Bank of China provided the loan to Kiev in exchange for supplies of grain.

Ukraine's State Food and Grain Corporation used part of the $3 billion Chinese loan to instead provide crops for other countries and parties, including Ethiopia, Iran, Kenya and the Syrian opposition groups, the ITAR-TASS news agency reported, citing a Ukrainian parliament official.

The contract stipulated annual supply of a maximum 6 million tonnes of Ukrainian grain for a 15-year period.

China also delivered half of the agreed loan to Ukraine last year and Ukraine had planned to export four million tonnes of grain to China.

However, Chinese importers have so far received only 180,000 tonnes of grain, worth $153 million, from Ukraine, the report said.

 

More here.

March 11, 2014 in In the News | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 19, 2014

“When I get the big money, I’ll take care of you.”

Do such words imply an enforceable promise to give an employee additional compensation both for work already performed and for work to be performed in the future if the speaker actually obtains a sizeable chunk of money?  (Does it matter to your answer if the words were uttered by Heather Mills, famous or infamous ex-wife of Sir Paul McCartney?..)

Your answer to the former question would probably be a resounding “of course not.”  In a recent decision, the United States Court of Appeals for the Ninth Circuit agrees (Parapluie v. Heather Mills, No. 12-55895).  The case resembles such Contracts casebook classics old and new as Kirksey v. Kirksey (1945), Ricketts v. Scothorn (1898) and Conrad v. Fields (2007).  One might have thought that promissory estoppel and, in this case, promissory fraud and intentional misrepresentation claims had generated enough case law to prevent an appeal.  Apparently not, much to the amusement of law students and law professors alike.

At bottom, the facts behind the case against Ms. Mills are as follows: In 2005, Ms. Mills hired Michele Blanchard to conduct PR work for her.  Ms. Blanchard was paid nothing for her work from 2005 to 2007.  In 2007, however, Ms. Mills and Ms. Blanchard agreed that Ms. Blanchard would be paid $3,000 per month because Mills couldn’t pay Blanchard’s usual fee of $5,000 per month.  The payments were made.  In 2008, the relationship between the two women soured.  Ms. Blanchard quit and sent Ms. Mills an additional invoice for $2,000 per month in arrears.  Ms. Blanchard claimed to be entitled to the greater amount because Ms. Mills allegedly misrepresented her financial situation when telling Ms. Blanchard that she could only pay $3,000 a month when she could, allegedly, afford to pay more.  In making this assertion, Ms. Blanchard relied on Ms. Mills having expressed an interest in renting a house for $80,000 per month, having bid $30,000 on a cruise at a charity auction, and having once stated about the fee to Ms. Blanchard, “I don’t know if I can pay the entire amount, but I’ll do something” and, after Ms. Blanchard askeed Ms. Mills if she might pay Ms. Blanchard “a little something,” allegedly agreeing that “I’ll take care of you when I get the big money.”  Ms. Blanchard claims that the latter statement was a promise to pay her regular fee of $5,000 both in the future and for the work already performed.  The court pointed out that Ms. Mills interest in renting expensive housing was just that; an interest.  She had in fact only rented “modest” properties via Ms. Blanchard for $2,000-3,000 per week for one week.  Perhaps most tellingly of Ms. Mills’ financial state of affairs at the time is the fact that when she attempted to pay for the cruise bid with a credit card, the payment was denied. 

Ms. Mills is reported to have obtained a nearly $50 million divorce settlement with a sizeable interim payment around the times listed above.  But as the court pointed out, when Ms. Mills did receive this interim payment, she also started paying Ms. Blanchard $3,000 a month, suggesting that her earlier statements about her inability to pay Blanchard were true, not false, when made.  Ms. Blanchard’s monthly invoices further stated “the total amount due” as $3,000, negating any inference that the contractual parties intended a retroactive or future payment for more than that amount.

Ms. Blanchard’s attorney may have wanted to read Baer v. Chase (392 F.3d 609, U.S. Ct. of App. for the Third Cir. (2004)).  In that case, Robert Baer, a former state prosecutor wishing to pursue a career as a Hollywood writer, similarly claimed that David Chase had promised to “take care of” Baer and “remunerate him in a manner commensurate to the true value of [his services]” should the project on which Baer worked for Chase become a success.  It did: the project was the creation and development of what turned out to be the hit TV series The Sopranos.  Baer received nothing for his services.  The court found that the alleged contract was unenforceable for vagueness because nothing in the record allowed the court to figure out the meaning of “success,” “true value,” and, in general, what it meant to be “taken care of” in this context.

Potentially starstruck employees be ware: if you think that your employer promises you a chunk of money, make sure you find out exactly what you have to do to earn that.  Now as well as hundreds of years ago: alleged promisors are unlikely to simply “take care of you” out of the goodness of their hearts.  And as always: get the promise in writing!

February 19, 2014 in Contract Profs, Famous Cases, In the News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 18, 2014

Good day, Sir! Contract Prevents University Student From Receiving $10k Prize

During a basketball game at West Chester University in Pennslyvania, freshman Jack Lavery was randomly picked for the $10,000 halftime challenge.  Lavery had 25 seconds to make a lay-up, shot from the free throw line, shot behind the three-point line and a half-court shot. Lavery successfully made a lay-up, a shot from the behind the free throw line, and then a shot behind the three-point line.  As the clock was winding down, Lavery attempted the half-court shot, but missed.  With one hand, he made the half-court shot on his second attempt just as the buzzer went off.  As Lavery explains it:

"I stopped and did that one handed shot and it happened to go in. I ran to the other side of the court just high fiving everyone and then I went and bear hugged my dad," said Lavery.

See for yourself:

 As you see, the crowd cheered, but the University refused to award the prize money.  Why?  The contract.

Intrepid reporting by Action News obtained a copy of a contract signed by Lavery.  The rules of the contest provide:

I shall have as many opportunities as necessary at each of the first three (3) locations to make a shot; however, no more than ONE (1) attempt may be made at the HALF COURT shot, provided that there is still time left on the shot clock.

Lavery took more than one attempt at the half court shot and, therefore, the University claims that he is inelgible for the prize.  Nevertheless, apparently his father intends to "challenge the wording of the contract."

Additionally, the contract reportedly states that anyone who played basketball in high school would be ineligible to collect the prize money.  Lavery played high school ball, another reason for his ineligibility.

Reminds me of this:

February 18, 2014 in In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

A NY Court Finally Holds that Florida is "Truly Obnoxious"...

Sunshine-state... at least, Florida's non-compete law is "truly obnoxious" to New York public policy.  The intermediate appellate court in New York (Fourth Department) recently refused to enforce a Florida choice of law provision in a non-compete agreement. Here's the analysis:

We nevertheless conclude that the Florida choice-of-law provision in the Agreement is unenforceable because it is “ ‘truly obnoxious’" to New York public policy (Welsbach, 7 NY3d at 629). In New York, agreements that restrict an employee from competing with his or her employer upon termination of employment are judicially disfavored because “ ‘powerful considerations of public policy . . . militate against sanctioning the loss of a [person’s] livelihood’ ” (Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307, rearg denied 40 NY2d 918, quoting Purchasing Assoc. v Weitz, 13 NY2d 267, 272, rearg denied 14 NY2d 584; see Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496, 499; D&W Diesel v McIntosh, 307 AD2d 750, 750). “So potent is this policy that covenants tending to restrain anyone from engaging in any lawful vocation are almost uniformly disfavored and are sustained only to the extent that they are reasonably necessary to protect the legitimate interests of the employer and not unduly harsh or burdensome to the one restrained” (Post v Merrill Lynch, Pierce, Fenner & Smith, 48 NY2d 84, 86-87, rearg denied 48 NY2d 975 [emphasis added]). The determination whether a restrictive covenant is reasonable involves the application of a three-pronged test: “[a] restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public” (BDO Seidman v Hirshberg, 93 NY2d 382, 388-389 [emphasis omitted]). “A violation of any prong renders the covenant invalid” (id. at 389). Thus, under New York law, a restrictive covenant that imposes an undue hardship on the restrained employee is invalid and unenforceable (see id.). Employee non-compete agreements “will be carefully scrutinized by the courts” to ensure that they comply with the “prevailing standard of reasonableness” (id. at 388-389).

By contrast, Florida law expressly forbids courts from considering the hardship imposed upon an employee in evaluating the reasonableness of a restrictive covenant. Florida Statutes § 542.335(1) (g) (1) provides that, “[i]n determining the enforceability of a restrictive covenant, a court . . . [s]hall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought” (emphasis added). The statute, effective July 1, 1996, also provides that a court considering the enforceability of a restrictive covenant must construe the covenant “in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement” and “shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract” (§ 542.335 [1] [h]; see Environmental Servs., Inc. v Carter, 9 So3d 1258, 1262 [Fla Dist Ct App]). Thus, although the statute requires courts to consider whether the restrictions are reasonably necessary to protect the legitimate business interests of the party seeking enforcement (see § 542.335 [1] [c]; Environmental Servs., Inc., 9 So3d at 1262), the statute prohibits courts from considering the hardship on the employee against whom enforcement is sought when conducting its analysis (see Atomic Tattoos, LLC v Morgan, 45 So3d 63, 66 [Fla Dist Ct App]).

Based on the foregoing, we conclude that Florida law prohibiting courts from considering the hardship imposed on the person against whom enforcement is sought is “ ‘truly obnoxious’ ” to New York public policy (Welsbach, 7 NY3d at 629), inasmuch as under New York law, a restrictive covenant that imposes an undue hardship on the employee is invalid and unenforceable for that reason (see BDO Seidman, 93 NY2d at 388-389). Furthermore, while New York judicially disfavors such restrictive covenants, and New York courts will carefully scrutinize such agreements and enforce them “only to the extent that they are reasonably necessary to protect the legitimate interests of the employer and not unduly harsh or burdensome to the one restrained” (Post, 48 NY2d at 87; see BDO Seidman, 93 NY2d at 388-389; Columbia Ribbon & Carbon Mfg. Co., 42 NY2d at 499; Reed, 40 NY2d at 307; Purchasing Assoc., 13 NY2d at 272), Florida law requires courts to construe such restrictive covenants in favor of the party seeking to protect its legitimate business interests (see Florida Statutes § 542.335 [1] [h]). 

According to the NYLJ, courts in Alabama, Georgia and Illinois have also rejected the Florida law.

You know what else is truly obnoxious?  All of the Floridians who complain about how cold it is when it hits 55 degrees...

Brown & Brown v. Johnson (N.Y. App. Div. 4th Dep't Feb. 7, 2014)

February 11, 2014 in In the News, Labor Contracts, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

Acceptance by Tattoo?

This article in the WSJ coincides perfectly with my syllabus as we are now finishing up our segment on offer and acceptance.  Apparently, in the early to mid-nineties, the band Rocket from the Crypt agreed to let in free to their concerts anyone with a tattoo of the band’s logo. 

As with many messy offer and acceptance scenarios, it started informally.  The band members got tattoos of the  logo – of a rocket blasting out of grave – and a few of their friends decided to do the same.  Eventually, the band decided to let anyone with the tattoo get in free to see them play.  They were a small band then and so whoever had the tattoo was probably a friend (or a friend of a friend) of a band member.  But the band grew in popularity – and so did the number of tattooed fans.  At their 2005 farewell concert, 500 rocket-tattooed fans got in free.

Now the band is preparing for their reunion tour.  Tickets are selling out. There’s just one small problem.  Many of the venues where they are scheduled to play don’t want to honor the free-admission-with-tattoo policy.

In my humble opinion, it doesn’t sound like the band actually made an offer to anyone, much less the public at large.  The terms weren't definite - how big did the tattoo have to be?  Could it be anywhere?  For how long would fans get in free?  Were there any limits? 

But the band did honor the “tattoo-as-ticket” in the past.  Does that then give rise to an implied contract?  Or is there an equitable estoppel argument that could be raised given the fans’ reliance?

As interesting as this may be to ponder for contracts profs, in the end, I think there should be no enforceable contract and no estoppel claim for the simple reason that the band never intended to make an offer to the public at large.  Furthermore, it doesn’t seem reasonable for someone to get a tattoo based upon what they understand to be the band’s informal policy of letting tattooed fans in free.  The practice was a custom that grew organically, rather than a promise that must be kept as long as the band plays or the tattoo lasts.  Not everything is a contract.  If there was some sort of actual promise made, the band's promise was likely one to make a gift (free admission) to show their appreciation to anyone who had a tattoo.  In other words, the band members weren't bargaining for fans to get a tattoo, and they weren't bargaining for them to show up to the venue with a tattoo - rather, motivated by affective reasons, they made a donative promise to let in their most loyal fans, the ones with tattoos, for free. 

 

 

 

February 9, 2014 in In the News, Miscellaneous, Teaching | Permalink | Comments (3) | TrackBack (0)

Wednesday, February 5, 2014

Enforceability of LOIs

Here's an excellent article in the NYLJ by Todd E. Soloway and Joshua D. Bernstein (of Pryor Cashman) -- concerning the enforceability of letters of intent.

February 5, 2014 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 4, 2014

Detroit Claims that Its Financing Contracts Were Illegal

According to this article from The New York Times, Detroit filed suit on Friday, seeking to invalidate complex transactions that it used to finance its debts.  Detroit claims that the contracts at issue were illegal and are thus unenforceable.

Detroit at NightThe transactions brought in $1.4 billion for the city, but it now claims that they were an unlawful scheme to get around a ceiling on the amount of debt the city could take on and that it thus has no obligation to make payments on the "certificates of participation" issued in connection with the transactions.  Detroit is also seeking to cancel some related "interest-rate swaps" with two banks that obligate the city to pay tens of millions of dollars annually to the banks.  Just a few weeks ago, Detroit had offered to pay $165 million to get out of the contracts, but the bankruptcy judge rejected that as "too much money."  Paying nothing seems like a better deal for the city, if they can find a legal basis to get out of the obligation.  

February 4, 2014 in Government Contracting, In the News | Permalink | Comments (0) | TrackBack (0)

Saturday, February 1, 2014

Hong Kong Tycoon Revokes His $65M Offer to Suitors of Lesbian Daughter

Running out of examples of unilateral contracts?  Well, here's one: Hong Kong tycoon Cecil Chao offered $65 million to any man that could get his lesbian daughter's hand in marriage.  That is, if a person could reasonably believe that Chao intended to enter into this bargain (it seems that he was in fact serious, especially in light of his wealth and his rejection of his daughter's sexuality):

Chao's daughter Gigi handled the situation with incredbile grace, writing an open letter to her father:

In her letter, Gigi Chao tells her father that she "will always forgive you for thinking the way you do, because I know you think you are acting in my best interests."

And she says she takes responsibility for some of her father's misplaced expectations.

When he first announced the colossal dowry in 2012, she said at the time she found it "quite entertaining."

But this week she appeared to set the record straight.

"I'm sorry to mislead you to think I was only in a lesbian relationship because there was a shortage of good, suitable men in Hong Kong," she writes. "There are plenty of good men, they are just not for me."

Here's Gigi in her own words:

It sounds like quite a few men responded to the offer with attempts to win Gigi's heart.  But it is now too late.  Even though Chao will not recognize his daughter's relationship with her long-time partner (really, wife - given that they wed in France even though the marriage is not recognized in Hong Kong), Chao has now revoked the offer.   

February 1, 2014 in In the News, Television | Permalink | Comments (0) | TrackBack (0)

Friday, January 31, 2014

Sperm Donor Ordered to Pay Child Support Despite Agreement

I like to remind my 1Ls Contracts students that a contract is private law between two parties, but it doesn't override public law.  This story is last week's news, but I thought I'd blog about it anyway because it provides a pretty good example of this point.  In 2009, William Marotta responded to a Craigslist ad posted by two women for a sperm donor.  All three parties agreed - and signed an agreement to the effect - that Marotta waived his parental rights and responsibilities.  The Kansas Department for Children and Families sought to have Marotta declared the father and responsible for payments of $6,000 that the state had already paid and for future child support. 

Unfortunately for Marotta, a Kansas state statute requires a physician to perform the artificial insemination procedure.  The Shawnee County District Court Judge Mary Mattivi ruled that because the parties "failed to conform to the statutory requirements of the Kansas Parentage Act in not enlisting a licensed physician...the parties' self-designation of (Marotta) as a sperm donor is insufficient to relieve (Marotta) of parental rights and responsibilities."

Note that the couple was not seeking to invalidate the contract - it was the Kansas state agency. 

It's unclear whether the parties will appeal.

 

[Nancy Kim]

 

January 31, 2014 in Current Affairs, In the News, Miscellaneous, True Contracts | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

Motley Crue "Death Pact"

Motley Crue, the rock band with the best VHI Behind the Music episode, has agreed to disband after one final tour.  According to CNN

All four members of Motley Crue signed an agreement Tuesday that will permanently dissolve the legendary rock group after a final tour.

Vince Neil, Mick Mars, Nikki Sixx and Tommy Lee appeared in a Hollywood hotel Tuesday for a signing ceremony for a "cessation of touring agreement," which their lawyer said would bring a peaceful end to the group.

"Other bands have split up over rancor or the inability of people to get along, but this is mutual among all four original members and a peaceful decision to move on to other endeavors and to confirm it with a binding agreement," attorney Doug Mark said.

Motley Crue has sold more than 80 million albums since hitting the road in 1981, but drummer Tommy Lee said, "Everything must come to an end."

"We always had a vision of going out with a big f**king bang and not playing county fairs and clubs with one or two original band members," said Lee, who is the youngest member at 51. "Our job here is done."

Guitarist Mick Mars, the oldest band member at 62, said the group's 33 years have had "more drama than 'General Hospital.'"

Vocalist Vince Neil, 52, said he'll miss the group, but it's not an end to his rock career. "I feel there are a lot of great opportunities and exciting projects after Motley."

The first leg of "The Final Tour" starts in Grand Rapids, Michigan, on July 2.

The termination agreement becomes effective at the end of 2015, after a global tour that will include Alice Cooper.

"Motley Crue and Alice Cooper -- A match made in Armageddon?" said Cooper.

I'd love to see a copy of the contract (...wherefore Motley Crue hereby f***g agrees fortwith to cease any and all  rock band activities of any kind...).   In the main, it sounds like a hard one to breach: I promise not to show up for band stuff anymore! 

January 29, 2014 in Celebrity Contracts, In the News, Teaching | Permalink | TrackBack (0)