Friday, June 29, 2018
A recent case out of the Second Circuit, Ortho-Clinical Diagnostics Bermuda Co. Ltd. v. FMC, LLC, No. 17-2400-cv (behind paywall), is another case about interpretation of contract terms -- twice over. Because here the parties entered into a contract, fought over breach of that contract, and then entered into a settlement agreement, which they were also fighting over. The moral is that, if you want something specific, you should ask for it rather than relying on unspoken industry practices.
The initial agreement between the parties was about an IT operating system. Although the system was going to cost $70 million, the contract wasn't very detailed, with no technical specifications or description of building methods. The parties' relationship deteriorated and they eventually entered into a Settlement Agreement to terminate the project. Under these new terms, FCM would be released from its obligation to provide the system to Ortho, while providing assistance while Ortho transitioned to a different contractor. After execution of the Settlement Agreement, Ortho apparently realized that FCM was not as far along as Ortho had thought and had not prepared certain items that Ortho had assumed it had prepared, and so Ortho claimed that as a result the IT system cost more and took longer.
The court, however, noted that there was nothing in the contract requiring FCM to produce the certain deliverables Ortho had been looking for. Ortho claimed it was "standard practice in the industry," but the court said that wasn't the equivalent of it being a contractual obligation. FCM was contractually required to provide assistance -- no more, no less. There was nothing in the contract about the job having to be at a particular stage of completion, or that any particular deliverables or documentation had to exist.
The court also pointed out that Ortho had released its claims regarding the original agreement in the Settlement Agreement. Ortho tried to argue that it had released claims but not damages but the court called that "a nonsensical reading."
Our friend over at the On Contracts blog, D.C. Toedt (Houston), has generously posted a collection of 80 exercises illustrating textual ambiguity. The sources vary widely, ranging from legal and religious texts to news items, popular culture, and even comic strips. Toedt uses the exercises in his contract-drafting course, challenging students to rewrite to clarify the meaning. The examples would work well in teaching ambiguity and contract interpretation in the 1L doctrinal course, as well.
And let's face it: In addition to being pedagogically useful, ambiguities can be downright funny. Enjoy the list!
Thursday, June 28, 2018
Top Downloads For:
Contracts & Commercial Law eJournal
Recent Top Papers (60 days)As of: 29 Apr 2018 - 28 Jun 2018
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Law & Society: Private Law - Contracts eJournal
Recent Top Papers (60 days)As of: 29 Apr 2018 - 28 Jun 2018
Date Posted: 08 May 2018
Wednesday, June 27, 2018
A recent case out of the Southern District of New York, Treasure Chest Themed Value Mail, Inc. v. David Morris International, Inc., 17 Civ. 1 (NRB), deals with a digital marketing contract, presenting a variety of straightforward interpretation questions that could be helpful for basic examples for some things to look out for in contract drafting.
The parties entered into a contract in which Treasure Chest was required to provide "greater than 300,000 follow up weekly digital impressions." The first dispute was over whether "digital impressions" was too ambiguous to be enforced. The court, however, easily defined "digital impression" with reference to investopedia.com. The court distinguished "digital impression" from "email," saying if the parties had meant "email" they would have used the word "email." A lesson in just using what you wish to say if that's indeed what you want; fancier terms are not always necessary and might just leave some room open for arguments about ambiguity and interpretation.
There was also a dispute over whether it was ambiguous that compensation was "up to" a certain amount. But the court disagreed, saying it was clear that this simply meant the contract would not exceed a certain amount.
Therefore, the court found there was a valid contract, that Treasure Chest fulfilled all of its obligations under the contract, and David Morris did not, so Treasure Chest was entitled to damages. Treasure Chest also sought attorneys' fees, but the court found that the contract was not clear enough to justify attorneys' fees. The contract said that "costs necessary to collect" past due balances could be awarded, but the court said that did not satisfy the "high standard" for collection of attorneys' fees via contract. Again, if attorneys' fees are what you want, attorneys' fees are probably what you should say.
Thursday, June 21, 2018
Forgive my taking an editor's privilege here to share an exciting announcement from my home institution. We are thrilled to have Bobby Ahdieh joining our faculty as dean!
Ahdieh is currently the K.H. Gyr Professor of Private International Law and Director of the Center on Federalism and Intersystemic Governance at Emory University School of Law in Atlanta, Georgia.
University officials say the School of Law has made unprecedented strides since joining the Texas A&M community in 2013, currently ranking among the top 80 law schools in the nation according to U.S. News & World Report. Officials say the School of Law’s forward progress is due to a number of efforts which include increasing its entering class profile; hiring a cohort of nationally recognized scholars who have added to the research strengths of the existing faculty; and enhancing its academic programs, allowing it to offer a rich educational experience to its students.
“We couldn’t be more proud of what our law school faculty, staff, and students have achieved during the School of Law’s first few years as part of Texas A&M,” said Texas A&M University President Michael K. Young. “With the university’s support and Bobby Ahdieh’s vision, scholarly reputation and administrative experience, we are well-positioned to accelerate the law school’s progress even more in the years to come.”
As dean, Ahdieh will oversee all academic and operational affairs of the law school, and will report to Texas A&M Provost and Executive Vice President Carol Fierke, who in announcing his appointment, emphasized Ahdieh’s achievements as a leader in the field of legal education, his significant administrative experience as vice dean and associate dean of faculty at Emory University, and the strength of his scholarly credentials. In particular, she highlighted his record of success in a variety of critical areas, including admissions, alumni relations, career development, faculty appointments and development, interdisciplinary initiatives, and the development of non-JD degree programs during his tenure at Emory.
Ahdieh holds a Bachelor of Arts from Princeton University’s Woodrow Wilson School of Public and International Affairs and a Juris Doctor from Yale Law School. He served as law clerk to Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit before his selection for the Attorney General’s Honors Program of the Civil Division of the U.S. Department of Justice.
His scholarly interests revolve around questions of regulatory and institutional design, especially in the business and financial arena. In addition to a monograph on legal transition in the former Soviet Union, published while he was still in law school, Ahdieh’s work has appeared in leading journals including the NYU Law Review, the Michigan Law Review, the Minnesota Law Review, the Boston University Law Review, and the Southern California Law Review.
In accepting the position, Ahdieh reflected on the significant potential of the law school, saying, “I believe no law school in the country has traveled further, in so short a time. Nor does any have more upside potential, going forward.”
Among the key priorities for the School of Law in the coming years, say university officials, will be continuing to build a world-class faculty and ensuring that faculty have the resources necessary to produce research of consequence and significance; extending the audience for a Texas A&M legal education beyond students seeking a three-year J.D., including through new and expanded non-J.D. programs; and enhancing the scope of the law school’s external engagement through active outreach to the community, graduates, and colleagues in legal academia – an effort that will require the active participation of faculty and staff.
Continued investment in faculty excellence and in the recruitment of great students, systematic efforts to increase awareness of the school’s achievements, a focused fundraising campaign, and employer outreach targeted to improving the quantity and quality of placement opportunities available to students around Texas, the United States, and around the world are particular initiatives Ahdieh says he plans to undertake upon taking up the deanship on July 15.
Young and Fierke acknowledged the work of the Search Advisory Committee and thanked Professor Thomas W. Mitchell for his invaluable service as interim dean over the last year.
About Texas A&M University
Texas A&M, established in 1876 as the first public university in Texas, is one of the nation’s largest universities with more than 66,000 students and more than 440,000 living alumni residing in over 150 countries around the world. A tier-one university, Texas A&M holds the rare triple land-, sea- and space-grant designation. Research conducted at Texas A&M represented annual expenditures of more than $905.4 million in fiscal year 2017. Texas A&M’s research creates new knowledge that provides basic, fundamental and applied contributions resulting, in many cases, in economic benefits to the state, nation and world. The school’s Lead by Example campaign is a comprehensive effort to raise $4 billion by the year 2020, making it the largest higher education campaign in Texas history and the second largest conducted nationally by a public university. Aggies are known for their deep commitment to the success of each other and a strong desire to serve.
Media Contact: Kelly Brown, firstname.lastname@example.org.
After a thoroughly unplanned hiatus for early 2018, the Weekly Top Ten SSRN Downloads List returns to ContractsProf Blog. Hot topics include smart contracts, forum selection, and good faith. Enjoy!
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Contracts & Commercial Law eJournal
Recent Top Papers (60 days)As of: 22 Apr 2018 - 21 Jun 2018
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Wednesday, June 20, 2018
Recently a video went viral showing a 2016 altercation around an umpire ejecting Mets pitcher Noah Syndergaard after he threw a fastball behind the Dodgers' Chase Utley. Umpires wear microphones during Major LeagueBaseball games, and the resulting (often loud and profane) discussions with Mets players and especially Mets manager Terry Collins was recorded.
The video recently surfaced in an apparent leak, because MLB has announced its intention to try to scrub the video from the internet. MLB's reason for this is that it violates a "commitment" that "certain types of interactions" involving umpires during baseball games would not be made public, claiming it was "in the collective bargaining agreement" and that there was "no choice" but to scrub the video from the internet. Indeed, according to one report it had already been scrubbed.
Not so fast, though, because I found it still embedded in news reports about it. It's hard to get anything to vanish from the internet, especially once it's gone viral, but it's not that difficult to locate this video at all.
And it's not hard to see why it went viral. It's a fascinating glimpse into a part of the game fans seldom get to see. As others have pointed out, the umpire does a fantastic job in the clip, so it's hardly like he's being cast in a bad light. The manager doesn't even come across all that poorly. In fact, in my opinion, the party that comes out of the clip looking the worst is Major League Baseball and its confusing way of handling the explosive Chase Utley situation.
It's unclear what "interactions" were agreed to be withheld from the public, but this one is certainly an interesting one. I'd love to know what the contract terms actually are.
Monday, June 18, 2018
A recent case out of the District of Arizona, Colocation America Corporation v. Mitel Networks Corporation, No. CV-17-00421-PHX-NVW (behind paywall - h/t to reader D.C. Toedt for the non-paywall link!), is, in its own words, "a poster child for the rule of Section 201(2) of the Restatement."
The dispute was over whether or not an agreement between the parties to transfer a domain name also involved the transfer of IP addresses. The section at issue was ambiguously worded: "Mitel hereby agrees to quit claim . . . the goodwill of the business connected with and symbolized by [the] Domain Name and the associated IPv4 18.104.22.168/16 and any associated trade dress . . . ." Mitel claimed this required it to quit claim the goodwill of the business associated with the IP addresses. Colocation contended Mitel was required to quit claim the goodwill AND the IP addresses AND the trade dress.
The court found that the wording was ambiguous but that the rest of the contract supported Mitel's interpretation, since the contract did not mention the IP addresses anywhere else. At every other point the contract discussed the transfer only of the domain name. There were no clauses about the transfer of the IP addresses other than that one mention in the clause quoted.
Furthermore, the court found that Mitel had no reason to know Colocation thought it was acquiring the IP addresses. By contrast, though, Colocation did have reason to know that Mitel thought the agreement was not about the IP addresses. In fact, evidence showed that Colocation "intentionally misled" Mitel by pretending to wish to buy only the domain name and keeping all discussions domain-name focused, while "nebulously" slipping the IP addresses into the contract. The IP addresses were worth far more than the amount the parties agreed on for transferring the domain name, and the court found that this was further proof Colocation knew that Mitel only intended to transfer the domain name, not the IP addresses.
As the court summarized,
"Colocation's objective from the outset was to acquire the IPv4 addresses. But it purported to negotiate only for a domain name without ever leveling with Mitel Networks. Colocation not only had 'reason to know' Mitel Networks attached a 'different meaning' to their agreement, it created and promoted that different meaning on the part of Mitel Networks. Thus, the Domain Name Assignment Agreement must be interpreted in accordance with the meaning attached by Mitel Networks, that is, as an agreement to assign a domain name and goodwill and not as an agreement to transfer IPv4 addresses."
Friday, June 15, 2018
New scientific studies have proven what we might all have been jokingly saying, but which apparently is true: the world population is increasing, but IQ levels are decreasing. The reason? Nurture, not nature.
The studies claim that after 1975, IQ levels started to drop because of, it is thought, "environmental factors." These could include pollution, changes in the education system and media environment, nutrition, reading less, and being online more. Yikes.
"It's not that dumb people are having more kids than smart people, to put it crudely. It's something to do with the environment, because we're seeing the same differences within families," said one of the co-authors and lead researchers on the project.
For us, this is not good news for obvious reasons. But are we, in fact, a contributing cause? I know that some of my students, for example, do not enjoy and sometimes simply will not read long homework assignments, don't read privately, and indeed spend large amounts of time online. I'm sure your students are not very unlike mine in that respect. Other studies that I don't have handy here also demonstrate that our students have difficulty reading longer texts simply because they are not used to reading anything much longer than blog posts, twitter feeds, and maybe the occasional article here and there, but certainly not books.
Read the entire findings. References to "changes in the education system" and "decreasing access to education" are disturbing.
Wednesday, June 13, 2018
A new case out of Minnesota and subsequently the United States Court of Appeals for the Eighth Circuit once again confirms what we suspect already: if there is any doubt about an employee’s status, he or she is likely to be held to be an at-will employee. Consider this:
Daniel Ayala is hired as an at-will employee in 2006 to serve as a vice president for CyberPower. In 2012, Ayala and CyberPower agree to convert his position to executive vice president for sales and general manager for Latin America. The written contract details his salary and compensation status, stating that the agreement “outlines the new salary and bonus structure to remain in place until$150 million USD [sic] is reached. It is not a multiyear commitment or employment contract for either party” (emphasis added). Ayala is fired before sales could reach $150. He claims breach of contract, contractual fraud, and unpaid wages, arguing that he was no longer an at-will employee, but rather should have been allowed to remain with the company at least until, as stated in the contract, the sales reached $150 million. CyberPower also relies on the contractual language, arguing that it unambiguously did notmodify his status as an at-will employee as contained the phrase that it was “not a multiyear commitment or employment contract.”
The appellate court agreed with CyberPower, highlighting the fact that the text of the agreement indicates that it governed compensation only. In Minnesota, there is a “strong presumption of at-will employment” which was applied here. The court also pointed out that Ayala did not produce any evidence supporting his claim that the company defrauded him by promising a definite term of employment and then firing him before the completion of the term.
Fair enough, it seems… until you consider the following as well: Ayala performed very well in his first sales position, bring the company’s annual sales from “virtually nothing” to almost $50 million by 2012. He aspired to become the company’s president when the original president, Robert Lovett, decided to retire. Lovett allegedly assured Ayala that he would be considered for that position but - surprise! - chose his son Brent as his successor when he retired in 2012. Ayala then expressed his desire to leave the company, but was persuaded to stay to mentor Brent (thus expecting Ayala to train his own replacement, in effect.). Ayala was assured that if he stayed, he would receive “better compensation, a promotion and a written contract ensuring Ayala long-term employment.” He was indeed promoted and, per the contract, promised to be able to stay “until” sales reached a certain amount, if the contractual language had been weighed that way. Further, the contract does not say that his position was in fact at-will. His previous contract had, in contrast, specifically said so.
Because of the parol evidence rule and, probably, the lack of written evidence of the negotiation statements, Ayala lost. The presumption about at-will employment may have been correctly applied. Not all court cases are resolved in a fair way for the employees. But the case clearly reeks of nepotism, luring an employee to stay with a company under false pretenses, and broken oral promises. True, Ayala did not have evidence of the oral negotiations, but neither did CyberPower.
Why is it apparently so darned important in U.S. society to treat employees as mere objects that can be disposed of at will, by definition? Why would it be so horrible to have to give employees a decent amount of notice and perhaps even a reasonable reason for being let go? Many other highly developed nations around the world – especially those in Europe – do not employ such law. These nations do very well. Companies there make good profits. Employees have more job security. They are equally, if not more, productive than American workers. What’s so bad about that?!
Clearly, cultural factors play a role in this context. That’s unlikely to change. In the meantime, employees in the U.S. should continue to be critical towards oral promises made by their employers and get every important term in writing. Of course, that is easier said than done in today’s often difficult job market and resulting reasonable fears of losing or not getting a coveted position. Employees such as Ayala should not be seen as mere impersonal chess pieces that can be manipulated and moved around for employer benefits only. But they often are.
The case is Daniel Ayala v. CyberPower Systems (USA), Inc., 2018 WL 2703102.
There is very little you can bet on in life but it seems like the continued prevalence of arbitration clauses is one of them. We just had a Supreme Court ruling confirming that, and a recent case out of Nebraska, Heineman v. The Evangelical Lutheran Good Samaritan Society, No. S-17-983, continues in the same vein.
In the case, a nursing home resident sued the facility for injuries he sustained while living there. The nursing home facility sought to arbitrate the dispute under the arbitration clause Heineman agreed to before being admitted as a resident of the facility. The lower court refused to enforce the arbitration clause based on lack of mutuality of obligation as well as finding it contrary to public policy. The appellate court, however, disagreed.
First, Heineman's argument on mutality of obligation concerned allegations that the nursing home facility had filed lawsuits against its residents without pursuing arbitration first. Heineman therefore argued that the nursing home's conduct indicated that only Heineman was bound by the arbitration clause. However, Heineman's argument depended on the court taking judicial notice of those lawsuits, considering that, as drafted, the arbitration clause did bind the nursing home. For some reason, though, this was apparently not an argument Heineman made at the lower court level, because the appellate court refused to take judicial notice of the lawsuits because they had not been presented to the trial court.
As far as the public policy concern went, the lower court had relied on a federal regulation prohibiting arbitration clauses as a requirement for admission to long-term care facilities. However, that regulation was passed almost two years after Heineman signed his arbitration clause, and at any rate has been enjoined from application by a federal court. Because there was no other legislation expressing a public policy against arbitration in the context of nursing-home facilities, the court found the arbitration clause was enforceable.
Tuesday, June 12, 2018
Here’s a nice little case that lends itself well to classroom use.
The Robertson family owned Duck Commander, Inc. (“DC”), a hunting supplies company that eventually morphed into an iced tea maker after Si Robertson ("Uncle Si") became known for the its members’ affinity for ice tea on a reality TV show about duck hunting. This was broadcast on the A&E network.
In late 2013, DC contracted with Chinook USA, LLC (“Chinook”), a ready-to-drink beverage company, to produce and market the Robertson family’s ice teas in cooperation with the Robertsons. A fairly elaborate contract is drawn up. This spells out the corporations’ mutual obligations in relation to “iced tea,” “ready-to-drink [RTD] teas,” and “RTD beverages.” This includes an integration clause purporting to make the agreement the “entire understanding between the parties.”
A few months later, in the summer of 2014, sales of iced tea apparently did not go as well as the parties had hoped and planned for. The Robertson family thus branched out into energy drinks and vitamin water. DC contracted with another marketer of those products. Chinooks sued DC for breach of contract, among other things claiming that the contractual terms “iced tea,” “ready-to-drink teas,” and “RTD beverages” also encompassed vitamin water and energy drinks and that DC should thus also have dealt with Chinook in relation to those products.
The contract was held to be ambiguous. Parol evidence was brought in showing that during the contract negotiations, iced tea accounted for about 95% of the focus of the negotiations with coffee products for the other 5%. No mention had been made of energy drinks or similar products. After contract execution, a Chinook negotiator sent Chinook an email stating “[T]hank you for taking the time to ask for a confirmation of Chinook USA’s rights as our exclusive licensee of tea …. This email confirms the same.”
Oops, it’s difficult to claim afterthe fact that when you yourself – a seasoned company with professional negotiators – get a deal for “tea,” you really intended something more than that. The appellate court thus also affirmed the district court’s judgment against Chinook on its breach of contract claims (see Chinook USA, L.L.C. v. Duck Commander, Incorporated, 2018 WL 1357986). https://law.justia.com/cases/federal/appellate-courts/ca5/17-30596/17-30596-2018-03-15.html
This case lends itself well to students issue-spotting issues such as contract interpretation, ambiguity, the PER, etc., but could also be used to discuss bargaining powers, party sophistication, and the smartness of, if nothing else, sending confirmatory memos… only they should, of course, be drafted such that they truly represent the parties’ intent. If that was the case in this matter, was Chinook simply regretting not getting a broader agreement at a point when sales of the originally intended product was already known to falter? This appears to be the case here.
Monday, June 11, 2018
If you teach Lady Duff-Gordon, as I teach Lady Duff-Gordon, you know that it's a fun case that lets you talk about a frankly pretty incredible life. But it's also an older case, so here's a more recent case out of New York using the implied covenant of good faith and fair dealing to potentially save an allegedly illusory promise, Ely v. Phase One Networks, Inc., 2667/2017 (behind paywall).
The plaintiff is a composer. The defendant is a company that produces music albums. The parties entered into recording and co-publishing agreements. The plaintiff sought a declaratory judgment that the contracts are unenforceable because they are illusory and unconscionable and moved for summary judgment. The court found that factual disputes existed as to both the unconscionability and illusory allegations. The analysis on unconscionability was very brief, but the court did provide a slightly deeper analysis on the illusory promise front. Although the recording contract provided that the recordings were "subject to the defendant's approval in its sole judgment," the court noted that the covenant of good faith and fair dealing "implicit in all contracts" meant that "the defendant could not unreasonably withhold approval."
Wednesday, June 6, 2018
A good cause termination clause operates to save oral agreement from statute of frauds writing requirement
Here's another helpful teaching case, this time for the statute of frauds section. Out of Delaware, World Class Wholesale, LLC v. Star Industries, Inc., C.A. No. N17C-05-093 MMJ, discusses the "one year" statute of frauds category. The parties entered into an oral agreement "in which WCW agreed to be the exclusive distributor of Star's products in Delaware for an indefinite period of time." Star contended that the oral agreement violated the statute of frauds and should have been in writing.
The court disagreed. WCW had alleged that the oral agreement contained a "'good cause' termination clause." This meant that either party could have terminated the agreement with good cause at any time, including within a year. Therefore, under Delaware law, there was a possibility this oral agreement could have been permissibly terminated and therefore performed within one year, and therefore the statute of frauds did not block enforcement of it.
Monday, June 4, 2018
Here's a parol evidence case if you're looking for a recent example for teaching purposes. It's out of the Northern District of Illinois, Eclipse Gaming Systems, LLC v. Antonucci, 17 C 196.
The case concerned licensing agreements for source code for casino gaming software. The court found that the written agreement was facially unambiguous and complete and contained an integration clause. Nonetheless, the counter-plaintiffs argued that evidence of a contemporaneous oral agreement should be permitted. But the court refused, finding that Illinois law, which governed the contract, required the parties to put any contemporaneous oral agreements into the four corners of their unambiguous integrated contract if they wished them to be enforced. The counter-plaintiffs argued that they should be allowed to present their parol evidence to show the contract was in fact ambiguous, but the Illinois Supreme Court had rejected that approach where the contract contained an explicit integration clause, as was the case here.
Counter-plaintiffs claimed that their parol evidence would establish that no contract was ever formed between the parties but the court found that such evidence would contradict the terms of the contract, which contained explicit terms regarding its effectiveness, and parol evidence was inadmissible to "contradict the clear written provisions of an integrated contract." The written licensing agreement, the court found, was not equivalent to a letter of intent that provided some question on the parties' intent to be bound, but instead was clear on the parties' intent to be bound.
Counter-plaintiffs tried to turn to promissory estoppel but the court noted that promissory estoppel should be used to rescue promises that didn't rise to the level of an enforceable contract. The counter-plaintiffs were instead trying to use the doctrine to vary the terms of their written contract.
There were other allegations and analyses, including pertaining to mutual mistake and unconscionability, but these also failed.
Friday, June 1, 2018
A recent case out of the Eastern District of Pennsylvania, Catalyst Outdoor Advertising, LLC v. Douglas, Civil Action No. 18-1470, declined to enforce a non-compete against the defendant Douglas, who had gone to work for an outdoor advertising firm that covered Manhattan and the Bronx. Catalyst, meanwhile, worked out of the Philadelphia area. The non-compete in question had no geographic limitations, which the court took issue with, noting it "covers the entire world." Catalyst asked the court to define reasonable geographic limits for the non-compete but the court declined to do so, stating, "[D]efining the boundaries is not our job." Additionally, because Catalyst operated in Southeastern Pennsylvania (with one billboard along the New Jersey Turnpike) and Douglas's new employer operated only within New York City, the court found that the two companies were not in competition with each other.
The court also found that Douglas had no confidential information belonging to Catalyst and that there was no evidence the information she knew from working at Catalyst would be beneficial in the entirely new territory of New York City. Therefore, the court concluded there was no likelihood of irreparable harm.
This is one of those cases that, from a pragmatic standpoint, makes little sense to me. Why would Catalyst pursue a court case against an employee going to work for a company not in its geographic area? The court's irreparable harm analysis seems right to me, that the employee here didn't have any specialized knowledge that could hurt Catalyst, given it didn't compete against the new employer. So, in that case, why is this case worth the money spent by Catalyst to bring it? Even if Catalyst had been successful, what was Catalyst's concrete gain? Is it just that companies don't want any employees to leave ever? Given the breadth of the non-compete in the first place, Catalyst might just be overprotective. Or is there some fact about this case left out of the opinion that makes it make more sense? Is Catalyst contemplating expansion down the road into New York City and is worried this employee might somehow make their plans less successful? This case is in the preliminary injunction stage, so maybe there is information that could arise later that would make it look more likely that Catalyst would succeed on the merits. It seems like Catalyst would have presented that information to the court at this point, though.
Wednesday, May 30, 2018
Although this post does not have anything to do with contracts law, it is hopefully interesting to many of you law professors anyway.
Scientific research shows that in years with warmer temperatures, students score worse on tests. The link is "significant." Researchers calculated that for every 0.55° C increase in average temperature over the year, there was a 1% fall in learning.
Colder days did not seem to damage achievement - but the negative impact began to be measurable as temperatures rose above 21° degrees C. The reduction in learning accelerated once temperatures rose above 32° C and even more so above 38° C.
A simple solution could be to use more airconditioning on test days. The more complex, but necessary, solution is to curb climate change. The world is still not doing enough in that respect despite the 2015 Paris Agreement. In particular, it is problematic that the USA has announced its withdrawal from the climate change agreement.
Could increasing temperatures also be part of the reason for our students' worse and worse bar performances? Apparently so.
A professor at Columbia sued the university, alleging various contract-based claims. In a recent decision, Joshi v. The Trustees of Columbia University in the City of New York, 17-cv-4112 (JGK), the Southern District of New York permitted the claims to survive the university's motion to dismiss.
The university argued that various employment policies did not constitute binding contracts between the parties. However, the court disagreed. The university had in place a Reservation of Rights that stated the employment handbook should not be treated as a contract. But there were factual disputes as to whether this Reservation of Rights applied to the other employment policies at issue, which did not seem to be found in the employment handbook. The parties disputed how clearly the Reservation of Rights was incorporated into the policies, and whether the Reservation of Rights was conspicuous. Therefore, the court allowed the breach of contract claim to survive the motion to dismiss (it also found that there were factual disputes about whether the university's actions were a breach of the policy).
The court also allowed the plaintiff's claim of breach of the covenant of good faith and fair dealing to survive, because it was about different conduct than the breach of contract claim (regarding the university's failure to investigate and stop the retaliation at issue, rather than the retaliation itself).
And the plaintiff's promissory estoppel claim also survived. The university argued that promissory estoppel claims do not apply to employment relationships, but the court disagreed and refused to dismiss the claim based on that alone, stating that the plaintiff was not seeking reinstatement of employment. The plaintiff's allegations, taken in the light most favorable to them, adequately pleaded promissory estoppel, so the court allowed the claim to survive.
The court did, however, dismiss the plaintiff's claim for fraud in the inducement, finding that the plaintiff had not adequately pleaded that the university acted with an intent to deceive.
Tuesday, May 29, 2018
The Supreme Court of Delaware just issued a contracts law case suitable for teaching purposes in relation to several different issues including contract formation, the parol evidence rule and forum selection clauses. It also raises some puzzling questions regarding the Court’s own analyses and conclusions.
The Court first analyzes whether three investment and tech companies displayed sufficient overt manifestation of assent – not subjective intent - to be bound by any contract at all. Referring to Professor Williston, the Court found this to be the case when a signature is present because it “naturally indicates assent, at least in the absence of an invalidating cause such as fraud, duress, mutual mistake, or unconscionability....” Because both parties here signed the contract and hugged each other after doing so (!), there was an objective manifestation of assent.
The Court then stated that “a contract must contain all material terms in order to be enforceable … Until it is reasonable to conclude, in light of all of the[ ] surrounding circumstances, that all of the points that the parties themselves regard as essential have been expressly or (through prior practice or commercial custom) implicitly resolved, the parties have not finished their negotiations and have not formed a contract.” Common sense, found the Court, “suggests that parties to a sophisticated commercial agreement … would not intend to be bound by an agreement that does not addressall terms that they considered material and essential to that agreement.” Consequently,“all essential or material terms must be agreed upon before a court can find that the parties intended to be bound by it and, thus, enforce an agreement as a binding contract.” In the case, the precise consideration under the contract was highly material to the parties. One of the documents addressed the consideration to be exchanged, although not in a concise manner. The recordregarding other terms was also “woefully undeveloped.” Some key terms were missing. Others were contested by the parties.
Nonetheless, the Court somewhat strangely did not find this to be a major problem. The real dispute was, per the Court, whether the terms relating to that consideration were sufficiently definite. The majority found this to be the case under the Restatement (Second) of Contracts § 33(2). Said the Court: “A contract is sufficiently definite and certain to be enforceable if the court can—based upon the agreement's terms and applying proper rules of construction and principles of equity—ascertain what the parties have agreed to do. Indeed, as Corbin has stated, “[i]f the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filling of some gaps that the parties have left.” Because the agreement's recitals summarized that technology company owner was to contribute to the holding company all his rights in certain intellectual property and technology company securities in exchange for units in holding company, technology company owner warranted that he could deliver all securities as promised, and agreement provided for situation of employees making successful claims for technology company securities, the Court found the consideration to be sufficiently definite. Fair enough, but what about several terms either having been omitted or “differing in reality from the parties’ statements”? The Court relied on parol evidence to resolve these issues.
The Court remanded for the lower court to make explicit findings as to whether or not the parties agreed to be bound.
The dissenting justices raise some good questions. Among other things, they identify valid issues regarding the missing material terms, whether the parties even agreed on the contract at all given its short-lived nature, and whether it was a waste of judicial and party resources to remand the case when the Supreme Court found it to be sufficiently specific. Most importantly and for good reason, the dissenters focus on the contract formation issue that the majority did away with for, it seems, the somewhat simplistic reasons that the parties had signed the documents and hugged each other. If our students concluded their analyses of contract formation on this ground, we would probably also point out the problem in so doing.
Of course, the parties may also consider reaching a solution amongst themselves at this point. Said Justice Strine: One hopes that before the parties engage in remand proceedings of great expense, they exhale and consider a sensible solution so that they can move on, with [one party] receiving fair compensation for his investments, but without harming themselves or others by continuing a bitter battle over whether they should be declared to have had a brief, loveless marriage, only to then commence immediate divorce proceedings.
The case is Eagle Force Holdings, LLC and EF Investments, LLC v. Stanley V. Campbell, C.A. No. 10803-VCMR. H/t to Professor Chiappinelli for bringing this case to my attention, and congratulations to Professor Stark for being cited to by the Delaware Supreme Court.
Friday, May 25, 2018