Thursday, August 21, 2014
Unfortuantely, this conference, scheduled for October 24, 2014, conflicts with the conference in honor of Charles Knapp, about which we posted yesterday. You will have to choose. Killer line-ups for both.
You can find details for the Bill Whitford conference here.
Here is the schedule:
9:00 - 9:15 Introductory Remarks
9:30 - 10:45 The Bankruptcy Research Database - Its Development and Impact
- Douglas Baird
- Bob Lawless
- Lynn LoPucki
- David Skeel
11:00 - 12:15 The Lifecycle of Consumer Transactions: Consumer Contracting, Protection, and Bankruptcy
- Melissa Jacoby
- Ethan Leib
- Angela Littwin
- Katherine Porter
12:30 - 1:45 Lunch Break
- Brief video-presentation from a special guest
- Talk: Bob Hillman on Teaching Contracts; Response by Bill Whitford
2:00 - 3:15 Mixed Methods: Comparative Law, Comparative Methods
- Stewart Macaulay
- Iain Ramsey
- Jay Westbrook
- Jean Braucher
3:30 - 4:00 Free for All: What Don't You Know That You Should Know?
A lot of ink has been spilled over this subject, and I don't have much to add, except to note that I have not seen a very many good discussions of the contract issues.
The very short version of the story, as best I can cobble it together from blog posts, is that the University of Illinois offered a position in its American Indian Studies program to Steven Salaita, who had previously been teaching at Virginia Tech. According to this article in the Chicago Tribune, the U of I sent Professor Salaita an offer letter, which he signed and returned in October 2013. Professor Salaita was informed that his appointment was subject to approval by the U of I's Board of Trustees, but everyone understood that to be pro forma. In August 2014, Salaita the U of I Chancellor notified Professor Salaita that his appointment would not be presented to the Board and that he was no longer a candidate for a position. According to the Tribune, the Board next meets in September, after Professor Salaita's employment would have begun. The Chancellor apparently decided not to present Professor Salaita's contract for approval because of his extensive tweets on the Isreali-Palestinian conflict, which may or may not be anti-Semitic, depending on how one reads them.
The main argument in the blogosphere is over whether or not the U of I's conduct is a violation of academic freedom. But there is also a secondary argument over whether Professor Salaita has a breach of contract of promissory estoppel claim against the U of I. The list of impressive posts and letters on the whole Salaita incident include:
Michael Dorf on Verdict: Legal Analysis and Commentary from Justia
Finally, Dave Hoffman stepped in on Concurring Opinions to address the promissory estoppel issues and then answers Michael Dorf's response
Hoffman makes strong arguments that there was no breach of contract here, because the offer was clearly conditional on Board approval. There are arguments that the promise breached was a failure to present Salaita's employment to the Board, but the remedy for that breach would simply be presentment, at which point both the claim and the appointment would go away (unless U of I has a change of heart on the matter).
We would have to know more about the process to make a more educated guess about whether or not a breach of contract claim here could succeed. I think it is relevant that, at the point Salaita was informed that the offer was rescinded, the Board could not meet before his employment would have begun. I suspect that his courses were already scheduled and that students had, at least provisionally, registered for them. I wonder if there were any announcements on the U of I website crowing about their recent hires. All of this would be relevant, it seems to me, to the state of mind of the parties regarding whether or not a contract had been made. It would be very sad for all of us in academia if it turned out to be the case that our offer letters mean nothing until the Board has spoken, as acceptance of a position usually involves major life changes, including giving notice at current jobs, moving to a new city, selling and buying a residence, etc.
I have no doubt that Dave Hoffman is right that promissory estoppel claims rarely succeed. I do think that some versions of the facts presented here suggest that this one might be a winner nonetheless or, as Hoffman suggests, is the kind of claim that is worth bringing at least in order to make the threat of discovery on the subject a strong inducement to the U of I to settle the case. But the remedy for promissory estoppel is probably not really the remedy Salaita seeks.
Professor Salaita's claims -- his academic freedom and constitutional claims -- go beyond the issues of contract and promissory estoppel. A lot has been written on this situation, and I haven't had a chance to read everything carefully, but I have yet to see a clear discussion of whether those claims hinge on Professor Salaita's contractual claims. It seems likely to me that if he had no contract, then he had no free speech or academic freedom rights vis a vis the U of I. And I don't think a promissory estoppel claim would get him such protections either. Or do people think that universities have a generalizable erga omnes duty to protect academic freedom?
Dave Hoffman has an additional post up on Concurring Opinions here.
Wednesday, August 20, 2014
The University of California Hastings College of the Law is sponsoring a symposium to honor Professor Charles L. Knapp (left) on the completion of his 50th year of law teaching. (He began his teaching career at NYU School of Law in fall 1964.)
The day-long program will take place on October 24, 2014 and will include four panels that will focus on areas that are of particular interest to Professor Knapp, but will also address topics with broad appeal to contract law scholars.
8:45 – 9:00 Introduction & Welcome
9:00-10:30 Panel I -- The State of Contract Law
Professor Jay Feinman, Rutgers University - Camden
Professor William Woodward, Santa Clara University
Professor Danielle Kie Hart, Southwestern Law School
Moderator – Professor Harry G. Prince, UC Hastings College of Law
10:45-12:15 Panel II -- The Role of Casebooks in the Future of Contract Law
Professor Deborah Post, Touro Law Center
Professor Carol Chomsky, University of Minnesota
Professor Thomas Joo, UC Davis
Moderator – Professor Nathan M. Crystal, University of South Carolina
12:15-1:15 Lunch: Marvin Anderson Lecture – Professor Keith Rowley, UNLV
1:30-3:00 Panel III -- The Politics of Contract Law
Professor Peter Linzer, University of Houston
Professor Judith Maute, University of Oklahoma
Professor Emily M. S. Houh, University of Cincinnati
Moderator – Professor Jeffrey Lefstin, UC Hastings College of Law
3: 15-4:45 Panel IV -- The Future of Unconscionability as a Limit on Contract Enforcement
Professor David Horton, UC Davis
Professor Hazel Glenn Beh, University of Hawaii
Moderator – Professor William S. Dodge, UC Hastings College of Law
4:45-5:00 Concluding Remarks
5:30 Reception and Dinner – UC Hastings Skyroom - [Limited space and requires separate registration with fee.]
*Papers will be published in a symposium issue of the Hastings Law Journal.
UC Hastings - Mary Kay Kane Hall (View Map)
200 McAllister St
San Francisco, CA 94102
Room: Alumni Center
Name: Roslyn Foy
The Marvin Anderson Lecture will be presented during the luncheon by Professor Keith Rowley of UNLV (right). Registration for the program is free except that the reception and dinner require a separate registration and payment of a fee.
And speaking of Keith Rowley, he has announced that UNLV's William S. Boyd School of Law will host the 2015 International Conference on Contracts (a.k.a. "KCON10") February 27 & 28, 2015.
The conference was held there in 2010, so we hope to return and win back all the money we lost at the craps tables five years ago.
Tuesday, August 19, 2014
Plaintiff sued the YMCA for injuries sustained when he slipped and fell on stairs that he alleged were negligently maintained. First, let’s get this out of the way:
The YMCA argued that plaintiff was contractually barred from seeking damages against the YMCA because plaintiff had voluntarily signed an exculpatory clause in his membership agreement. That clause provided:
I AGREE THAT THE YMWCA WILL NOT BE RESPONSIBLE FOR ANY PERSONAL INJURIES OR LOSSES SUSTAINED BY ME WHILE ON ANY YMWCA PREMISES OR AS A RESULT OF A YMWCA SPONSORED ACTIVITIES [SIC]. I FURTHER AGREE TO INDEMNIFY AND SAVE HARMLESS THE YMWCA FROM ANY CLAIMS OR DEMANDS ARISING OUT OF ANY SUCH INJURIES OR LOSSES.
A New Jersey trial court granted summary judgment dismissing the complaint. An appellate court reversed. The appellate court framed the issue as “whether a fitness center or health club can insulate itself through an exculpatory clause from the ordinary common law duty of care owed by all businesses to … invitees[.]” The court held that it could not.
While the New Jersey Supreme Court upheld an exculpatory clause in Stelluti v. Casapenn Enters., Inc., 203 N.J. 286 (2010), that case was characterized as involving allegations of injury based upon risks inherent in the activity (bike riding in a spin class). In Stelluti, the New Jersey Supreme Court did not specifically address or decide whether an exculpatory clause may waive ordinary negligence.
Given the expansive scope of the exculpatory clause here, we hold that if applied literally, it would eviscerate the common law duty of care owed by defendant to its invitees, regardless of the nature of the business activity involved. Such a prospect would be inimical to the public interest because it would transfer the redress of civil wrongs from the responsible tortfeasor to either the innocent injured party or to society at large, in the form of taxpayer-supported institutions.
The appellate court also noted that the agreement was presumably a contract of adhesion.
This is a case worth following if appealed to the New Jersey Supreme Court. And a good teaching case because it lays bare the tension between freedom to contract and overriding concerns about general public welfare.
Walters v. YMCA, DOCKET NO. A-1062-12T3 (Superior Ct. of N.J. App. Div. Aug. 18, 2014).
Now there's a headline that will make Fox News chortle with glee. The Al Jazeera news network purchased Al Gore's Current TV channel for $500 million. Gore's suit alleges that Al Jazeera still owed $65 million on the purchase price.
According to this report on the Guardian Liberty Voice, Al Jazeera may be withholding the final payment in an attempt to negotiate a discount on the sale price. According to the report, Al Jazeera has not garnered as many viewers as it hoped -- an anemic average of 17,000 during prime time, as compared with 1.7 million for Fox News and nearly 500,000 for CNN.
But with new crises erupting daily in the Middle East, things are looking up for all three.
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Monday, August 18, 2014
The named plaintiffs in Stevenson v. The Great American Dream, Inc. are former employees of Pin Ups Nightclub. They brought suit claiming entitlement to minimum wage and overtime compensation under the Fair Labor Standards Act (FLSA). They sought class certification in December 2012, which was granted in August 2013. Kwanza Edwards attempted to join the class on October 2013. Unfortunately for her, she had signed an arbitration agreement in February 2013. On July 15, 2014, the District Court for the Northern District of Georgia granted defendants' motion to compel Edwards to arbitrate her claim.
On motion for reconsideration, Edwards argued that the arbitration agreement was unconscionable, given that a FLSA action had already been filed, with class certification pending. The Court found that the timing of the agreement did not affect its substantive terms.
The Court was unimpressed with Edwards' citations to cases from other Circuits. Plaintiff does not seem to have cited to Russell v. Citigroup, Inc., about which we previously posted here. The case is probably distinguishable, but that was a case where the court refused to compel arbitration where a plaintiff signed an arbitration agreement after the class action litigation had already commenced. The difference is that Russell was himself already a party to a class action when he signed the new arbitration agreement. Edwards was not yet a party to the FLSA class when she signed her arbitration agreement.
Wednesday, August 13, 2014
I love concert tour riders -- those sometimes lengthy contract terms that reveal all of a band's idiosyncratic backstage requests. The most famous rider term is, of course, Van Halen's requirement of no brown M&Ms. And we've blogged about the explanation for this peculiar request more than once: here and here.
WNYC's John Schaefer hosted an extended discussion of tour riders on Soundcheck. My favorite is Iggy Pop's request: "One monitor man who speaks English and is not afraid of death."
The Brooklyn band Parquet Courts asked for:
- 1 bottle of communion grade red wine
- 1 bottle of white wine that would impress your average non-wine-drinking American
- 1 bottle of lower-middle shelf whiskey – cheap but still implies rugged masculinity
- Mixers for aforementioned mid-level whiskey, of slightly higher quality than the whiskey
- A quantity of “herbal mood enhancer”
- 1 copy of newspaper with the most interesting headline/front page picture (comic section must feature Curtis)
You can listen to the show here:
Today's New York Times features an article aptly titled (in the print version) "Under the Microscope." The article describes researchers' attempts to grapple with the ethical issues relating to projects such as Facebook's experiment on its users, about which we have written previously here and here. According to the article, researchers both at universities and at in-house corporate research departments are collaborating on processes to formulate ethical guidelines that will inform future research that makes use of users' information.
The article states that Facebook has apologized for its emotion experiment, in which it manipulated users' feeds to see if those users' own posts reflected the emotional tone of the posts they were seeing. It's not really clear that Facebook apologized for experimenting on its users. As quoted on NPR, here is what Facebook's Sheryl Sandberg said on behalf of the company:
This was part of ongoing research companies do to test different products, and that was what it was; it was poorly communicated . . . . And for that communication we apologize. We never meant to upset you.
As the Washington Post noted, Sandberg did not apologize for the experiement itself. Seen in its full context, Sandberg's statement is more akin to OKCupid's in-your-face admission that it experiements on its users, about which Nancy Kim posted here.
But the Times article focuses on Cornell University's Jeffrey Hancock, who collaborated with Facebook on the experiment. He seems to have no regrets. For Hancock, researchers' ability to data mine is to his field what the microscope was to chemists. Or, one might think, what the crowbar was to people doing research in the field of breaking and entering. Hancock is now working with people at Microsoft Research and others to lead discussions to help develop ethical guidelines applicable to such research.
The Times quotes Edith Ramirez, Chair of the Federal Trade Commission on the subject. She says:
Consumers should be in the driver’s seat when it comes to their data. . . . They don’t want to be left in the dark and they don’t want to be surprised at how it’s used.
By contrast, here is the Times's synopsis of Professor Hancock's views on how the ethical guidelines ought to be developed:
Companies will not willingly participate in anything that limits their ability to innovate quickly, he said, so any process has to be “effective, lightweight, quick and accountable.”
If the companies are subject to regulation before they can experiment on their users, it does not really matter whether or not they willngly participate. And the applicable standards have already been established under Institutional Review Board (IRB) rules. Significantly, as reported here in the Washington Post, although Professor Hancock works at Cornell, his participation in the Facebook study was not subject to Cornell's IRB review. In our previous posts, we have expressed our doubt that the Facebook study could survive IRB review (or that it yielded the information that it was supposedly testing for).
The Times article does not indicate that any of the people involved in devising rules for their own regulation have any expertise in the field of ethics. Why is letting them come up with their own set of rules in which they will "willingly participate" any better than expecting the wielders of crowbars to design rules for their safe deployment?
Tuesday, August 12, 2014
On HBO’s Last Week Tonight, John Oliver was joined by Sarah Silverman and they took on the payday loan industry. Here's the clip (NSFW, especially Sarah Silverman's bit at the end):
From the pseudo PSA at the end of the clip: “Hi, I’m Sarah Silverman. If you’re considering taking out a payday loan, I’d like to tell you about a great alternative. It’s called ‘anything else.’ The way it works is, instead of taking out a payday loan you literally do anything else.”
[Meredith R. Miller]
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Monday, August 11, 2014
Presidential Executive Order Refuses Government Contracts to Companies that Mandate Employee Arbitration
President Obama today signed a new Fair Pay and Safe Workplaces Executive Order refusing to grant government contracts of over a million dollars to companies who mandate their employees arbitrate disputes involving discrimination, accusations of sexual assault, or harassment. This new order mirrors protections Congress already provided to employees of Defense Department contractors in 2011 in the so-called “Franken amendment.” The order also requires prospective federal contractors to disclose prior labor law violations and will instruct agencies not to do business with egregious violators.
While the executive order is limited in its scope (only protects employees who work for companies with large government contracts and only applies to arbitration of certain kid of claims), it is a step toward the Arbitration Fairness Act, which would prohibit mandatory arbitration more braodly. More here.
Here are the basics:
The practicum is designed to give students a taste for real world contract drafting on behalf of clients. Students are randomly assigned to one of two roles --either representing an employer or a recently hired employee. They negotiate and memorialize the terms of employment their respective clients have already agreed upon. Students will be assigned counterparts within their classes and will negotiate the terms of the contracts through an online portal.
The practicum is set up so that all of the logistical work is done by the software and Professor Eigen. For instance, the software will pair students and email them information about their counterparts. Instructions, participants’ confidential role information, and general instructions will be available through the portal. After student pairs upload their contracts, the software will analyze their work product. Students and professors will receive analytical results in case you wish to spend class time discussing their performance. That is, there is very little work for you if you wish to run it, and you can use almost no class time on it if you wish. Professor Eigen provides a “Professor’s Guide” offering more information including some suggested class discussion points.
There is also an interesting technology-related component of the practicum. If you contact Professor Eigen directly, he will provide more detailed information about it to you.
Instructors who would like to know more about this practicum, and are considering using it in their classrooms this fall should contact Professor Eigen directly: email@example.com
Thursday, August 7, 2014
When I was a student my contracts teacher was Richard Fielding. He was as Socratic as he could be. I thing the first day he walked in and said: "Mr Harrison, What is my name." Ok, well not that Socratic but very talented and I loved it. He used Kessler and Gilmore and I found the book dense but more interesting than virtually any of the books around today.
Now, however, as teachers and realists, contracts teachers are faced with two questions at the beginning of each semester: 1) When and how much to cover remedies? and 2) in a 4 credit course what gets left out? (Part of this post is inspired by a recent inquiry over on the contracts listserv about the history of teaching remedies first.) I'd really like some comments on these questions since I and trying to get it "right" at least one time before I finish with contracts.
My personal history has gone from starting with about a month of remedies at the outset (in a two semester course) to a one week introduction to remedies at the beginning with a return later on. I do this so that when I get to consideration the students have an understanding of the remedial implications of a contract, liability based on promisory estoppel, and whether there is any way to recover if neither of those apply. If any readers do not do this, I'd really be interested in how they treat contractual as opposed to PE remedies.
On leaving things out, I typically do not teach Statute of Frauds, although I alert them to its existence, because I figure any decent bar review lecture will cover it when they need it. And, like so many others, assignment and delegation and third party beneficiaries also get the heave ho. I am very keen on including the UCC but not even close to replacing a sales course.
So what is the thinking on these two questions. I am preparing my syllabus in the next week and could use some new thinking.
It is not often that the Supreme Court of the United States entertains a contract issue (which is, coincidentally, one of the main reasons it is such a delight to teach contract law). The Supreme Court did, however, recently settle a contract dispute of its own.
The curious case of the trapezoidal windows at the U.S. Supreme Court is closed.
Documents filed recently in lower courts indicate that a contentious seven-year dispute over mistakes and delays in the renovation project at the high court has been settled.
“Everybody was worn out by the litigation,” Herman Braude of the Braude Law Group said this week. Braude represented Grunley Construction Company, the main contractor for the modernization project on the nearly 80-year-old building. “All good things have to come to an end,” he said.
The most contested feature of the litigation was the belated discovery by contractors that more than 150 large windows, many of which look out from justices’ chambers, were trapezoidal—not strictly rectangular. The building's persnickety architect, Cass Gilbert, designed them that way so they would appear rectangular from below, both inside and outside the building.
But Grunley and its window subcontractor failed to measure all four sides of the windows before starting to manufacture blast-proof replacements, so some of them had to be scrapped.
Grunley claimed it was not obliged to make the measurements, asserting that the government had “superior knowledge” of the odd shape of the windows that it should have shared with contractors. The company asked for an extra $757,657 to compensate for the extra costs of fabricating the unconventional windows.
But the federal Contract Appeals Board in 2012 rejected Grunley’s claim, stating: “We find inexcusable the firms’ failure to measure a necessary component of the windows prior to installation.”
Grunley appealed to the U.S. Court of Appeals for the Federal Circuit and placed other contract disputes before that court and the U.S. Court of Federal Claims. Both sides eventually agreed to settlement negotiations.
In February, both parties reported to the federal circuit that “the parties are now in the final process of closing out the underlying construction contract and settling various requests for equitable adjustment.” They also told the federal circuit that “the settlement discussion are at a very high level between the parties … and are being primarily led by the principals of each party, not the litigation counsel.”
Subsequent orders by both courts have dismissed the litigation, but no details of the settlement are available on the docket of either court.
Attempts to obtain details of the settlement have been unsuccessful so far. The Architect of the Capitol—the congressional agency that has jurisdiction over the Supreme Court building and was the defendant in the litigation—did not respond to a request for comment. The U.S. Department of Justice’s civil division, which handled the litigation for the architect's office, did not respond as of press time, and neither did anyone from the Supreme Court.
Braude, Grunley's attorney, was reluctant to give details. “The dollar figure doesn’t matter,” he said. But when pressed, Braude said his client “got some” of the $15 million in extra compensation it was seeking from the government, beyond its original $75 million contract for the work.
“Everybody agreed to an adjusted contract price that recognizes the budget limitations of the government,” Braude said, adding that the settlement was “satisfactory to all parties. Nobody was jumping for joy, but everybody was a little happy.” Braude also said the Supreme Court signed off on the settlement.
John Horan of McKenna Long & Aldridge, an expert on government contract disputes, said there is no general rule about the confidentiality of settlements, and sometimes “the government doesn’t go out of its way to make settlements public.” But a document spelling out terms of the agreement is sometimes made part of the public record or can be obtained through the Freedom of Information Act, he said. The Supreme Court and the Architect of the Capitol, an arm of Congress, are exempt from the FOIA.
The modernization project at the Supreme Court broke ground in 2003 and the target completion date was 2008, though some follow-up work is still underway. The court's aging infrastructure—including one of the oldest Carrier air-conditioners in existence—was the trigger for the project, which has cost an estimated $122 million overall.
More here. Great basis for an exam hypo. And, wow! -- to be the attorney that sues the Supreme Court!
Wednesday, August 6, 2014
I am not sure this is a contracts issue but having taught contracts for 30+ years, I tend to see all things in contract terms. And, after recently reading about the student who sued his teacher for some sort of mix up in the syllabus, I am not sure that is wrong.
Here is the problem: Suppose a student lands on academic probation after the first year during which he is assigned to one slate of teachers. The school has a curve but no requirements with respect to distributions. Some teachers give lots of As and Cs or Ds. Others give scores of Bs and no As or Ds. The student placed on probation gets a couple of professors who give Ds. It is pretty clear that had he been assigned to another section, in which the lowest grade given is a C, there would be no probation.
Aside from any administrative law types of issues, is there a contracts issue with respect to some kind of implied term in the contract between the school and the students. Perhaps I am getting ahead of myself. What is the nature of the contract between students and their schools? Does that contract have any terms that govern grading aside from what might be found in a student handbook?
By the way, on a different topic and if anyone is interested (hopefully not), I posted the draft of my article Copyright as Contract on ssrn.
Robin Kar (pictured) has just posted an ambitious piece, Contract as Empowerment: A New Theory of Contract on SSRN. The submission is still under review right now, so you can be among the first to download it! Here is the abstract:
Modern contract theory is in a quandary. As Alan Schwartz and Robert E. Scott have observed: “Contract law has neither a complete descriptive theory, explaining what the law is, nor a complete normative theory, explaining what the law should be.” This article aims to cure these deficiencies with a novel theory, “Contract as Empowerment”.
Contract as Empowerment is a deontological (duty-based) theory, rooted in a special strand of social contract theory known as “contractualism”. The theory nevertheless differs from more familiar deontological theories, which are typically rooted in moral intuitions about promising, autonomy or reliance. Because of its foundation in social contract theory, contract as empowerment can absorb a number of important economic and psychological insights, which have traditionally given efficiency theories explanatory advantages over traditional deontological theories. But contract as empowerment can absorb these insights without subjecting them to thoroughgoing economic interpretation. It can thereby produce a more robust, unified and normatively satisfying account of many core areas of doctrine. Among other things, contract as empowerment offers a more compelling account of the consideration doctrine than exists in the current literature; a better account of the expectation damages remedy (both descriptively and morally); and a special way of understanding the appropriate role of certain doctrines like unconscionability, which regulate private market activity by making the scope or content of contractual obligations depend on facts other than contracting parties’ subjective wills.
This last fact provides a major point of contrast with most existing theories of contract. One of the most striking features of the way that standard debates between deontological and consequentialist theories have been framed in this area of the law is that general theories on both sides typically share a key implication. They imply that legal doctrines that invite courts to police bargains for fairness reflect alien intrusions into the basic subject matter of contract. Contract as empowerment suggests that this framing has been distorting our understanding of contracts (and hence modern markets) for some time now. It offers an alternative framework, which understands both private market empowerment and some market regulations as direct expressions of the same fundamental principles. Because this framework is principled, it can help depoliticize a range of currently heated debates about the appropriate scope and role of market regulation. This framework can be applied to many different forms of market exchange—from those in consumer goods to labor, finance, credit, mortgages and many others.
This article is the first in a two part series. Contract as Empowerment introduces and develops the theory of contract as empowerment. Contract as Empowerment II applies the theory to a range of doctrinal problems and argues that contract as empowerment offers the best general interpretation of contract law.
Professor Kar promises that a follow-up article is coming soon. Stay tuned.
Tuesday, August 5, 2014
Ah, “good faith” – the jello mold of contract law. What is “good faith”? What does it mean to negotiate in “good faith”? If a statute does not provide a definition, do common law notions of good faith apply? In New York, a panel of the Appellate Division (Second Department) had occasion to define the parameters of “good faith” for purposes of the statutory requirements in mortgage foreclosure actions.
In 2009, in response to the foreclosure crisis, New York’s Civil Practice Law and Rules (“CPLR”) § 3408 was amended to require mandatory settlement conferences in mortgage foreclosure actions involving any home loan in which the defendant was residing in the property. The statute further requires that both plaintiff and defendant negotiate in "good faith" to resolve the action, including, if possible, a loan modification. The statute does not define “good faith.”
Plaintiff (bank) argued on appeal that “a party to a mortgage foreclosure action can only be found to have violated the good-faith requirement of CPLR 3408(f) when that party has engaged in egregious conduct such as would be necessary to support a finding of ‘bad faith’ under the common law.” Of course, plaintiff maintained that it did not engage in any egregious conduct such as gross negligence or intentional misconduct and, therefore, it satisfied the good faith requirement of CPLR 3408(f).
The court rejected plaintiff's contention that a lack of good faith pursuant to CPLR 3408(f) requires a showing of gross disregard of, or conscious or knowing indifference to, another's rights. Instead, the court held that a failure to negotiate in “good faith” under CPLR 3408(f) is determined “by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution.”
The court reasoned that this definition aligned with the purpose of the good faith requirement, which is “to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution."
The court elaborated on what constitutes a failure to act in good faith:
Where a plaintiff fails to expeditiously review submitted financial information, sends inconsistent and contradictory communications, and denies requests for a loan modification without adequate grounds, or, conversely, where a defendant fails to provide requested financial information or provides incomplete or misleading financial information, such conduct could constitute the failure to negotiate in good faith to reach a mutually agreeable resolution.
Applying the standard to this case, the court held that:
Any one of the plaintiff's various delays and miscommunications, considered in isolation, does not rise to the level of a lack of good faith. Viewing the plaintiff's conduct in totality, however, we conclude that its conduct evinces a disregard for the settlement negotiation process that delayed and prevented any possible resolution of the action and, among other consequences, substantially increased the balance owed by [defendant] on the subject loan. Although the plaintiff may ultimately be correct that [defendant] is not entitled to a . . . modification, the plaintiff's conduct during the settlement negotiation process makes it impossible to discern such a fact, as the plaintiff created an atmosphere of disorder and confusion that rendered it impossible for [defendant] or the Supreme Court to rely upon the veracity of the grounds for the plaintiff's repeated denials of [defendant’s] application.
Can you nail that to the wall: what's a meaningful effort?
U.S. Bank National Assoc v. Sarmiento, 11124/09 (N.Y. App. Div. 2d Dep't Aug 5. 2014).
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