Monday, April 16, 2018
I could not resist blogging this case out of the District of Colorado, Northglenn Gunther Toody's v. HQ8-10410-1045 Melody Lane, Civil Action No. 16-cv-2427-WJM-KLM (behind paywall), because it tackles these questions: "First, what is a diner? Second, is the IHOP restaurant a diner?"
I greatly enjoyed reading the court's definition of "diner," which, after evaluating expert testimony, settled on "a table service restaurant with a broad array of breakfast, lunch, and dinner offerings, most of which are perceived as American cuisine." The court then decided that IHOP qualifies as a diner.
After that, though, things get a bit of a mess. The lease at issue prohibited the opening of "a diner similar in concept" to the one operated by the plaintiff. The court found that the parties provided it with no answer as to what that phrase meant. The court concluded it must be something more than just being "a diner," because otherwise there was no reason to include the "similar in concept" language. But plaintiff kept insisting that IHOP being a diner was enough to violate the clause. The court did not hold with that interpretation, since it left "similar in concept" with no work to do. The "concept," the court thought, had to refer to something more than just diners generally. The clause required the court to ask if IHOP was similar in concept to the plaintiff's restaurant, whereas plaintiff just kept arguing that the answer was yes, because they were both diners, without tackling the concept language (although I think the plaintiff was trying to argue that the concept was being a diner). Therefore, the court found that plaintiff offered no reasonable interpretation of the covenant and therefore there was no ambiguity.
This ruling is confusing, because the "similar in concept" language was so slippery that no one seemed able to advance any meaningful definition of it at all...and that resulted in a finding that it was unambiguous. I would avoid this language in contracts, as I think this case proves it's actually pretty ambiguous.
At any rate, the court went on to conclude that IHOP was not similar in concept to the plaintiff's restaurant, because the plaintiff failed to rebut the defendant's argument that they were different in concept. Which means that it sounds like there is some understanding of what "concept" means, after all...? I am confused by this case and have decided to mull it over at my local IHOP.
Saturday, April 14, 2018
A recent decision out of the Eastern District of Louisiana, In re Chinese-Manufactured Drywall Products Liability Litigation, MDL No. 09-2047 (behind paywall), stems from a multi-district litigation over the sale of Chinese drywall in the Southeast during rebuilding efforts after Hurricanes Rita and Katrina. Eventually, five individual class settlements were approved by the court.
Later, the Burns realized that their house contained Chinese drywall that was causing a variety of problems. They filed suit and included among their claims a failure to be informed of the multidistrict litigation. InEx, the particular defendant who supplied the Chinese drywall at issue in the Burns situation, alleged that the Burns did not opt out of the settlement and thus their claims were barred. The court ruled that the settlement did bar the Burns claim against InEx; however, the Burns allegations against Livers, the particular construction company that had performed the installation of the Chinese drywall in the Burns house, were allowed to survive.
Among other things, Livers argued that it, too, should be protected by the InEx settlement agreement. The settlement agreement, it argued, released "[a]ny further claims and/or liabilities arising out of, or otherwise relating to, the sale, supply, marketing, distribution, or use of Chinese [d]rywall." Livers argued that the Burns claims against it were included in this umbrella. The court disagreed, because the Burns claims contained allegations that Livers had fraudulently concealed the existence of the Chinese drywall MDL. That claim was not released by the settlement. In fact, it could not have existed until after the settlement was perfected. The court therefore allowed the Burns to to pursue "an action against Livers for allegedly preventing them from filing a claim in the settlement program."
Tuesday, April 10, 2018
In case you missed it in the onslaught of news we're subjected to these days, the agreements settling several of the sexual harassment claims against Bill O'Reilly have been made public, thanks to a federal judge overruling the contracts' confidentiality clauses ("Strict and complete confidentiality is the essence of this agreement," reads one). You can read about them all over, including the New York Times, CNN, ThinkProgress, and Vogue.
The contracts say the usual things that we have come to expect regarding the confidentiality of the accusations but at least one of them contains the added twist that, should any incriminating documents come to light, the woman settling the claim is required to declare them to be "counterfeit or forgeries." The truth of the statement is irrelevant; the contract evidently requires the woman to lie and say they're counterfeit and forgeries even if they're genuine.
Another interesting part of that "counterfeit or forgeries" contract is that the accusing woman's attorney agrees not to cooperate in any other action against O'Reilly and, indeed, agrees to switch sides and advise O'Reilly "regarding sexual harassment matters." This sounds like it raises all sorts of ethical issues. They're brought up in the other articles I've linked, and Bloomberg has a rundown of the ethical issues as well.
Things lurking in these confidential agreements...
Monday, April 9, 2018
New York court rules sexual harassment by itself is not against an employer's interest such that it breaches a fiduciary duty
A recent case out of New York, Pozner v. Fox Broadcasting Company, 652096/2017, is related to the growing spotlight on sexual harassment cases. In the case, Pozner was terminated from his employment based on sexual harassment complaints and sued for breach of his employment contract. Fox brought counterclaims for breach of contract and fiduciary duty.
I'm blogging this case because it has an interesting ruling on the fiduciary duty claim in the context of sexual harassment cases (which I assume we might see more of; or maybe not if maybe people just stop sexually harassing others /end wide-eyed optimism). The court found that the employee handbooks were contracts whose terms Pozner had agreed to abide to, but the court dismissed Fox's breach of fiduciary duty claim, because the fiduciary duty of loyalty is about the employee acting against the employer's interests, and no court in New York has found sexual harassment on its own can serve as a basis for a breach of that duty of loyalty. Fox did not allege enough to convince the court that Pozner's sexual harassment was against Fox's interest. The court noted that other cases where sexual harassment was part of a breach of loyalty involved other financial improprieties or allegations of fraud.
Monday, April 2, 2018
A recent case out of Indiana, AmeriGlobe v. Althoff, Court of Appeals Case No. 46A05-1708-PL-1845, reminds all of us that, if you're an at-will employee, your terms of employment can change at any time. If you keep working instead of quitting, that constitutes your acceptance of those new terms.
In the case, Althoff was employed by AmeriGlobe. He had a written employment contract that specified that his employment was terminable at will. When AmeriGlobe changed the commission rates it was paying Althoff, Althoff recognized that he had two choices: He could quit or continue to work. When he continued to work, he accepted his new terms of employment. An assertion that his commission should have been higher therefore failed.
Sunday, April 1, 2018
Lots of people have been discussing the recent Central District of California ruling, Disney Enterprises v. Redbox Automated Retail, Case No. CV 17-08655 DDP (AGRx) (those links are a random selection), a lawsuit brought by Disney against Redbox's resale of the digital download codes sold within Disney's "combo pack" movies, which allow instant streaming and downloading of the movie. There is an obvious copyright component to the dispute, but I thought I'd highlight the breach of contract portion of the decision.
The DVD/Blu-Ray combo packs were sold with language on the box reading "Codes are not for sale or transfer," and Disney argued that Redbox's opening of the DVD box formed an enforceable contract around that term, which Redbox breached by subsequently selling the codes. However, the court found no likelihood of success on the breach of contract claim, based on the fact that the language on the box did not provide any notice that opening the box would constitute acceptance of license restrictions. The court distinguished other cases that provided much more specific notice. Redbox's silence could not be interpreted as acceptance of the restrictions. This was especially so because the box contained other language that was clearly unenforceable under copyright law (such as prohibiting further resale of the physical DVD itself). Therefore, the court characterized the language as "Disney's preference about consumers' future behavior, rather than the existence of a binding agreement."
The court ended up denying Disney's motion for preliminary injunction.
Monday, March 19, 2018
A recent case out of the Southern District of Texas, Henderson v. A & D Interests, Inc., Civil Action No. 3:17-CV-096, deals with arguments regarding illusory promises and unconscionability.
The plaintiffs were exotic dancers at the defendant's adult entertainment club. They sued and the defendant moved to compel arbitration pursuant to the agreement between the parties. The plaintiffs argued that the agreement was unenforceable because it was illusory. The relevant termination provision allowed either party to terminate "at any time with or without notice." Because the termination provision provided such rights to both parties, the court found it wasn't illusory and the agreement was enforceable.
The plaintiffs also argued that the arbitration provision in the agreement was unconscionable because it required the parties to split the cost of the arbitration, which the plaintiffs argued would be prohibitive. However, the court found unpersuasive the plaintiffs' evidence on the estimate of the cost of the arbitration, and there was no evidence of the plaintiffs' ability to pay for an arbitration at the time they agreed to the provision, which to the court was the relevant moment.
Friday, March 16, 2018
There's a class action going on over data breaches at Yahoo! between 2013 and 2016, and a recent decision in the case in the Northern District of California, In re: Yahoo! Inc. Customer Data Security Breach Litigation, Case No. 16-MD-02752-LHK (behind paywall), finds that Yahoo!'s limitation-of-liability provisions have been adequately pled to be unconscionable.
The provision at issue was found in Yahoo!'s terms of service and attempted to limit Yahoo!'s liability. The class action sought consequential damages, and Yahoo! moved to dismiss the claims for those damages, citing the provision. However, the plaintiffs argued that the provision was unconscionable, and the court agreed that they had sufficiently pled their argument to survive the motion to dismiss.
In terms of procedural unconscionability, Yahoo!'s terms of service were a non-negotiable adhesion contract, and the limitation-of-liability provision was found near the end of its twelve pages. The fact that the plaintiffs could have chosen other email services did not bar a finding of procedural unconscionability.
As far as substantive unconscionability goes, the plaintiffs alleged that the limitation-of-liability provision was one-sided and acted to block the plaintiffs from achieving adequate relief. The provision prohibited nearly every type of damages claim, virtually guaranteeing that the plaintiffs would not be able to be made whole in the event of a breach. In this case, consequential damages generally follow from data breaches, so the plaintiffs argued that consequential damages were necessary for their case. Finally, the plaintiffs argued that the only party in a position to guard against data breaches was Yahoo!, yet the limitation-of-liability provision placed the risk on the plaintiffs should Yahoo! fail to maintain adequate security.
Saturday, March 3, 2018
Completing the trilogy of non-compete cases this week, here's one out of the District of Maryland: Premier Rides, Inc. v. Stepanian, Civil Action No. MJG-17-3443. The industry this time is amusement park rides. The defendant is a structural engineer who worked for the plaintiff, mainly on roller coasters. He signed an employment agreement that contained a non-competition provision. When he decided that he wanted to resign his employment, he asked to be released from the non-competition provision. The plaintiff refused to release him. Subsequently, the defendant sought jobs that were non-competitive in nature, while apparently turning down a couple of employment offers from the plaintiff's competitors. He did, however, keep in touch with the plaintiff's customers, including interviewing for a job with at least one of them, before eventually accepting employment with DreamCraft. In his capacity at DreamCraft, the defendant worked on a project for one of the plaintiff's competitors and attended meetings with many of the plaintiff's customers. The plaintiff sued for breach of the non-compete.
The defendant first tried to argue that the agreement did not have adequate consideration, but the court noted that Maryland law is clear that "continued employment of an at-will employee" is sufficient consideration for a non-compete, as long as there is no other evidence of bad faith. The defendant continued to work for the plaintiff for three years after signing the agreement, receiving raises and bonuses throughout that time. So the court found that there was adequate consideration to enforce the non-compete.
The court also concluded that the non-compete had a valid corporate interest in that it prevented the defendant from exploiting the customer contacts he made while working for the plaintiff for the benefit of one of the plaintiff's competitors. The defendant, however, argued that the provision was not narrowly tailored to that interest. The time restriction of twelve months is routinely upheld in Maryland so the court focused on the fact that the non-compete was not limited in scope geographically. The court found that the plaintiff's market was global in scope, so the lack of geographic limitation was permissible.
The court did, though, find that the non-compete prohibited more activity than necessary. The defendant was an engineer, not a salesman, so the plaintiff's concerns about the defendant's customer relationships seemed misplaced. The defendant necessarily had to meet the plaintiff's customers to perform his job, but the plaintiff admitted that this kind of personal relationship was not important for the customers, who made their purchasing decisions based on price and "impact"of the amusement park ride. The agreement in separate provisions prohibited the defendant from soliciting the plaintiff's customers on behalf of his new employer and from disclosing the plaintiff's confidential information. The plaintiff did not allege the defendant had violated these provisions; rather, the plaintiff focused on just the fact of the defendant's employment by DreamCraft being enough to violate the agreement. But since the plaintiff's non-compete interests had been solicitation of customers or disclosure of trade secrets, to the court it was telling that neither of those was at issue in this case.
Accordingly, the court found the non-compete overbroad and unenforceable. It noted that it could rewrite the non-compete to be enforceable but it didn't know enough to edit it effectively at the moment.
Friday, March 2, 2018
Yesterday I wrote about a non-compete clause, and here's another one out of New York: Cogint, Inc. v. Moraes, 159597/2017. Yesterday's concerned auction houses, this one concerns digital marketing and advertising, in which Moraes was prohibited from competing for one year after his employment. The non-compete here seems to be worded as broadly in scope as the one that yesterday's court found to be overbroad, but there is no discussion about janitorial capacity in this case. Rather, the court concluded that the non-compete here was necessary to protect the plaintiff's interest because Moraes was a key employee in possession of trade secrets.
Not only was Moraes potentially in violation of the non-compete, but the court found that he potentially breached his employment agreement by terminating his employment before the term of the agreement concluded. The court found that the agreement did not provide him the right to terminate his employment at will.
Thursday, March 1, 2018
A recent case out of New York, Heritage Auctioneers & Galleries, Inc. v. Christie's, Inc., 651806/2014, deals with the world of luxury auctions. The plaintiff alleged, inter alia, that the defendant Rubinger breached the non-compete provision of his employment agreement when he resigned his position and went to work for Christie's Hong Kong office. The opinion is behind a paywall but the many points of contention between these companies has been documented in several places, including here, here, and here.
The employment agreement was governed by Texas law, so the court applied Texas law to determine that the non-compete provision was overly broad. The non-compete prohibited Rubinger from providing services for any business that participated, either directly or indirectly, in auctioning collectibles in North America in a manner competitive to the plaintiff's auction business. The problem was that the non-compete tried to prohibit Rubinger from providing any services for such business. As the court noted, Rubinger could have violated the agreement by working as a janitor at Sotheby's or in the mailroom at Christie's. The court therefore concluded that the non-compete was unreasonable.
However, under Texas law, the court reformed the provision to be enforceable, rewriting the provision to prevent Rubinger from providing services to competitors identical to those he provided to the plaintiff. Because that was exactly what Rubinger was doing, he was in violation of this rewritten non-compete provision.
The court found the time and geographic scope of the non-compete to be reasonable, and then found that the question of whether Rubinger's activities in Hong Kong violated it was a factual determination that could not be resolved.
Rubinger's employment agreement also contained a non solicitation covenant. When Rubinger resigned from the plaintiff to move to Christie's, two of Rubinger's staff resigned on the same day to make the identical move. The court found the non solicitation covenant enforceable, but nevertheless dismissed the claim because the non solicitation covenant, by its terms, prohibited Rubinger from soliciting the plaintiff's employees after termination of his employment. Because Rubinger's solicitation of his staff took place prior to termination of his employment, it was not prohibited by the terms of the contract.
There were many other claims in this complaint, including trade secret allegations and unjust enrichment. I focused on Rubinger's alleged breach of contract in this blog entry, but there were other aspects to the court's decision.
Wednesday, February 28, 2018
In this recent case out of California, Darien Ephram, Inc. v. Yashar, B279827, the lower court denied a motion to compel arbitration, finding that the plaintiff's claims were outside the scope of the arbitration provision. The defendant took issue with that determination, arguing on appeal that the lower court should have required the plaintiff to prove its claims, instead of merely relying on the allegations made in the complaint. This ruling, according to the defendant, showed a "hostility" to arbitration in violation of the policy favoring it.
The appellate court, however, disagreed, nothing that the defendant was "misunderstanding" the lower court's rulings. There was no reason for the lower court to take evidence because there were no factual disputes that the arbitration provision depended upon: None of the parties disputed the interpretation of the scope of the arbitration provision, and there was no factual defense that would have altered the character of the plaintiff's claims or the scope of the arbitration provision. Therefore, the court was entitled to legally determine that the claims in the complaint were not within that scope; no factual determination was necessary. The proving of the allegations in the complaint were for the next phase in the litigation, not for the motion to compel arbitration stage.
Tuesday, February 27, 2018
A recent case out of the Northern District of Illinois, Talcott Communications Corp. v. Quad/Graphics Printing Corp., Case No. 17 C 2278, deals with the enforceability of contract provisions prohibiting consequential damages.
Talcott sued Quad/Graphics for breach of contract and sought losses in advertising revenue when its advertisers left it because of Quad/Graphics's alleged breach. Quad/Graphics contended that consequential damages were waived under the contract and so Talcott could not seek the loss in advertising revenues. Talcott countered that the provision was unconscionable.
The court found the provision was not unconscionable. Talcott provided no evidence that Quad/Graphics did anything questionable during the negotiation of the contract. Talcott argued that it was "outgunned" because Quad/Graphics was a bigger company, but Talcott itself was a sophisticated business and there were no allegations of high-pressure negotiating tactics by Quad/Graphics. There was simply not enough bargaining disparity between the parties, nor enough evidence of coercive behavior to raise the court's concern procedurally.
Nor was the waiver of consequential damages substantively unconscionable. The court noted that Quad/Graphics would still be liable for any compensatory damages, and the waiver of consequential damages is routinely enforced by courts.
The court therefore granted summary judgment in favor of Quad/Graphics on Talcott's claim. (However, it denied Quad/Graphics's motion for summary judgment on its counterclaim as there was not a sufficient showing to justify summary judgment.)
Saturday, February 17, 2018
A U.S. judge on Wednesday dismissed a lawsuit seeking the return by the Metropolitan Museum of Art in Manhattan of a Pablo Picasso masterpiece that a German Jewish businessman was allegedly forced to sell at a low price in order to fund an escape from the Nazis and fascism.
Paul and Alice Leffmann fled Germany for Italy in 1937. Paul Leffmann sold “The Actor” the next year to two art dealers for $12,000 to fund an escape to Switzerland from the Fascist regime of Benito Mussolini, a Hitler ally.
The Met acquired “The Actor” in a 1952 donation, but did not acknowledge Leffmann’s ownership until 2011, after decades of incorrect cataloguing. Leffman’s great-grand niece, who handles the estate of the Leffmans, claimed that the circumstances of the 1938 sale meant that her family never lost title. The Met disagreed, while expressing sympathy for the Leffmanns’ plight.
The judge found that the sale “occurred between private individuals, not at the command of the Fascist or Nazi governments,” and not because of a “wrongful threat” by the buyers that took away Leffmann’s free will.
“Although the Leffmanns felt economic pressure during the undeniably horrific circumstances of the Nazi and Fascist regimes,” the judge wrote, “that pressure, when not caused by the counterparties to the transaction (or the defendant) where the duress is alleged, is insufficient to prove duress with respect to the transaction.”
It is both sad and interesting that so many years after the fascist rise to and fall from power, these types of cases are still heard in courts in this country and beyond.
Friday, January 26, 2018
A recent case out of Michigan, Dalton Township v. Charter Township of Muskegon, No. 335743 (behind paywall), involved a dispute over the payment of “hydrant fees.” The defendant ceased paying the fees, alleging that it was not required to pay them under the parties’ contract, and the plaintiffs sued. The defendant won summary judgment on the issue based on a plain language reading of the contract. Reiterating that “unambiguous contractual language must be enforced as written,” the court embarked on a close reading of the contract and determined that nowhere did it require the defendant to pay the disputed fees. There was no mention of any “hydrant fees” in the contract and the clauses that discussed revenue and expenses never mentioned any such fees. The court found that this was unambiguous and must be enforced as written and would not consider any extrinsic evidence on the issue.
(There was another issue in the case regarding whether disputes under the contract could be brought to court. The court concluded that it could resolve the dispute under the contract’s terms.)
Thursday, January 25, 2018
A recent case out of the Northern District of Illinois, Washington v. Board of Education of the City of Chicago, No. 17 CV 2343 (behind paywall), tackles, among other things, fraud and duress in the context of enforcing a settlement agreement. Washington worked for the defendant. After a dispute arose between the parties, they entered into a settlement agreement. Washington now seeks to declare the settlement agreement unenforceable on a number of grounds.
First, Washington alleged fraud on the part of the defendant, alleging a number of misrepresentations and intentional omissions in the agreement. But the defendant argued that Washington's reliance on the alleged statements and omissions wasn't reasonable and further that it had no duty to disclose any information to Washington, which the court agreed with. Washington had her own counsel; had three weeks to consider the agreement; and had seven days after signing within which she could revoke the agreement. Since she had adequate counsel and time to consider the terms, the court found that Washington could not allege that the settlement agreement was procured by fraud.
Second, Washington alleged duress because she feared for the termination of her job and "a humiliating public hearing." The board argued that Washington had alternatives to signing the agreement, and in fact those alternatives would have entitled her to continue to receive her full salary while she pursued them, so there would have been no economic duress to those choices. Again, given her independent counsel and the amount of time she was given to consider her choices, the court found that Washington failed to allege duress.
Washington made many other allegations, including illegality, mistake, and lack of consideration, all of which the court dismissed.
Tuesday, January 23, 2018
A recent case out of Minnesota, Oberfoell v. Kyte, A17-0575, reminds all of us that noncompete agreements need to have a justification. Kyte worked for Oberfoell's online-auction business and signed a contract that contained a noncompete clause. He later left to start his own online-auction business and Oberfoell sued.
The lower court found the noncompete agreement to be unenforceable and this appellate court agreed. Oberfoell simply couldn't justify its necessity because he failed to assert a legitimate business interest protected by the noncompete clause. Oberfoell made general allegations that Kyte had personal relationships with many of Oberfoell's customers and thus possessed goodwill belonging to Oberfoell. But Oberfoell never identified any customers who he was worried about, nor did he ever introduce any evidence that Kyte had used any of Oberfoell's customer lists improperly. The court concluded that Kyte did not seem to be the "face" of the business nor was he the exclusive contact the customers had with the business. There was no evidence that any of Oberfoell's customers were concerned about Kyte leaving and no evidence that any of them followed Kyte to his new business. Therefore, Oberfoell failed to prove that the noncompete was protecting a legitimate business interest.
Oberfoell also tried to assert that his customer lists and other materials were taken by Kyte and qualified as a violation of the noncompete. The court pointed out that the customer lists weren't secret and weren't treated as secrets by Oberfoell, and so couldn't qualify as trade secrets. The other materials suffered from the same lack of confidential protection.
Finally, the noncompete also failed on the basis of reasonableness. It prohibited Kyte from competing in a radius of 150 miles for five years. The court found the 150-mile restriction to be "arbitrary," and Oberfoell produced no evidence justifying his choice of such a large radius. The five-year restriction was also unreasonable because the evidence showed Oberfoell could have replaced Kyte easily and quickly, so there was no reason to keep Kyte from competing for so long (in fact, Oberfoell apparently never hired anyone to replace Kyte, delegating his responsibilities to already-existing employees). There was no evidence that Kyte had received any extensive training that gave him an advantage in establishing his business, which took him a few months to get started.
Wednesday, January 17, 2018
Those posting ideas to the internet, in tweets or YouTube trailers or other websites: take note. This is an older decision, but one worth recounting on this blog I think. Out of the Central District of California, Alexander v. Metro-Goldwyn-Mayer Studios, Inc., CV 17-3123-RSWL-KSx, warns you that making your ideas available for free can mean that you forfeit the right to pursue compensation if someone else uses them.
The case concerns the movie "Creed," which the plaintiff Alexander alleged he came up with. He sued the defendants for misappropriation of his idea, breach of implied contract, and unjust enrichment. The misappropriation of idea claim fails in California, so the court moves on to the breach of implied contract claim, where Alexander also faltered because he failed to allege that he ever offered the "Creed" idea for sale. In tweeting the idea at Sylvester Stallone, the court read the allegations as portraying a gratuitous offer of the idea to Stallone.
Alexander argued that he thought he would be paid for the idea based on industry custom, and that the defendants understood that he tweeted the idea at them with the expectation of payment. But the court disagreed. All Alexander did was tweet the idea at Stallone and post it all over the internet; those actions were not compatible with expecting compensation, since the idea was widely available for free. There was never any communication between Alexander and the defendants, so the court found that it "strain[ed] reason" to imply an agreement for compensation from an unanswered tweet and the posting of the idea in other places on the internet.
Finally, the unjust enrichment claim also failed. Alexander could not allege how the defendants benefitted from his idea, since he never alleged how the defendants accepted the idea. At any rate, since the idea was available for free all over the internet, the court stated that it was "unclear" why the defendants should be expected to compensate Alexander.
Tuesday, January 16, 2018
The plaintiff Wilson resigned his position as the athletic director for the defendant Northland College after investigation for two sexual harassment complaints. Wilson and the college signed an agreement upon his resignation that restricted what the college could say about the situation to the media. The college radio station subsequently ran some stories reporting on Wilson's resignation. Wilson sued for, inter alia, breach of the separation agreement. The college moved to dismiss and the Western District of Wisconsin recently granted the motion in Wilson v. Northland College, 17-cv-337-slc (behind paywall).
The problem was Wilson couldn't identify any term of the contract that the college breached. The contract set forth a joint press release to be issued and stated that "[t]o the extent that either party is asked by a media source of any sort to provide an additional explanation, both parties will state that the mutually agreed upon statement speaks for itself." The college issued the require statement and the college radio host, beyond reporting that Wilson had resigned, did not provide any reasons for the resignation and referred to the press release, exactly as the contract required.
Wilson's main arguments were that the press release was supposed to be the college's only statement and that no college employee (which the radio host was) could speak about Wilson's conduct, sexual harassment, or investigations in any way. But the court concluded that that was not what the contract called for and the radio host's statements that the college would not comment for the reasons behind the resignation beyond the press release complied with the college's contractual obligations.
Wednesday, January 3, 2018
A recent case out of the Sixth Circuit, Heimer v. Companion Life Insurance Co., No. 16-2274, "is about whether a contract should mean what it says." The insurance policy at issue disclaimed coverage for injuries that resulted from the "illegal use of alcohol." Heimer legally consumed a great deal of alcohol (he was legal drinking age), but then illegally operated a motorbike while his blood alcohol level was nearly twice the legal limit. He collided with another motorbike and suffered extensive injuries.
The insurance company claimed that the policy didn't cover the accident because it resulted from the illegal use of alcohol. The court disagreed based on the plain language of the contract. The policy said "use," not "under the influence." Therefore, Heimer's injuries weren't covered only if his use of the alcohol was illegal, which it was not. Heimer's criminal offense was illegally using a motor vehicle, not illegally using alcohol.
The court acknowledged that obviously the insurance company didn't want to have to pay for the injuries caused by the drunken motorbike driving, but the court noted that the contract's language needed to be modified to reach that result.
A concurrence in part / dissent in part agreed with the outcome and accused the insurance company, the contract's drafter, of "sloppy drafting," but did allow that the phrase might be ambiguous.