ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, January 5, 2015

Weekly News Roundup

Thanks to the Hattiesburg Patriot, we have a pdf of a decision from the Mississippi Chancery Court striking down a public contract as unconstitutional.  In January 2014, the City of Hattiesburg (the City) entered into a $137 million contract with Groundworx, LLC (Groundworx) for a wastewater treatment system.  In August, the City terminated the contract due to Groundworx's alleged failure to secure financing for the project.  Thomas Blanton intervened, alleging that the contract violates Article VII, Section 183 of Mississippi's constitution, which prohibits the government from lending credit in aid of a private business, and the Due Process clauses of both the Mississippi constitution and the U.S. Constitution's 14th Amendment.  The Chancellor held that the contract was tantamont to the City

Flickr photo by Keith Allison 

lending its credit to Groundworx for a public project over which it had no effective control.  It thus violated the Section 183 and both due process clauses and was void ab initio.

As if Alex Rodriguez (pictured at right) did not have enough troubles already, the New York Daily News is wishing him a "Happy Sue Year" and reporting that A-Rod's ex-wife's brother is suing A-Rod for breach of a partnership agreement relating to the sale of Miami real estate.  

Our Uber-lawsuit coverage continues this week with this story from the St. Louis Post Dispatch.  The story reports on a planned class action alleging that Uber breached a contract with consumers by advertising that it shares 20% of fares with drivers as tips when in fact Uber keeps far more than that for itself.  The latest development is just a discovery battle that Uber lost.  It will have to provide relevant e-mails from Uber's CEO, Travis Kalanick.

January 5, 2015 in In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Airlines and Calling the Kettle Black

A few days ago, I blogged on the recent lawsuit by United Airlines and Orbitz against the developer of Skiplagged.  One of the causes of action alleged is breach of contract for encouraging the purchase of a ticket to certain destinations only to get off at an interim point to save money.

The airlines themselves may be breaching their contracts with flyers.  For example, when we buy tickets to be flown from point A to point B, that arguably implies being done so without undue delays and, in particular, possibly having to spend the night at your own cost and without your personal belongings in random cities around the world if connections are missed because of flight delays (unless, of course, you choose to spend the night sitting upright in the airport).  Needless to say, if you seek to change your ticket, airlines will either charge extreme high fees and the “difference in price” for doing so or outright prohibit this practice.  I’ve had to change tickets many times in the past, and it has typically only taken an agent about five minutes to do so.  Unconscionabiliy, anyone? 

Here’s what happened to me one cold winter night a few years back: On my way to Denmark from St. Croix, the airline was late taking off and got even more delayed when it “had to” make an unplanned “quick landing” for gas, which was cheaper at the interim airport than at the end destination, and… ice cubes for people’s drinks!  I wish I was kidding, but I’m not.  I missed the once-daily connection out of Atlanta to Copenhagen and had to spend the night in Atlanta in December.  As I was living in tropical St. Croix at the time, I had some warm clothes with me on board the airplane to stay warm there, but had packed my winter gear in my suitcase.  The airline paid for my hotel, but would, in spite of my desperate pleas, not let me have my suitcase back for the night.  Result: I had to travel to and from the hotel, etc., in indoor clothes on what turned out to be an unseasonably cold winter day in Atlanta (yes, I should have brought a warmer jacket on board the plane, but planes to and from the Caribbean are often very small and I always try not to bring too much carry-on items).

Before 1978, U.S. airlines were required under “Rule 240” to offer seats on a competitor’s next flight if that would be the fastest way of getting the traveler to his or her destination.  Airlines created after deregulation were never required to follow that rule, but older airlines such as Delta, United and Continental apparently still adhere to the rule.  Funny that they never seem to mention that when they delay you significantly.  Next time you fly, it may pay to scrutinize your contract of carriage more carefully to ascertain your rights in case of a delay. 

It may be time for Congress to reintroduce a Rule 240-type requirement on airlines, especially as these have become extremely good at flying full – even at overcapacity - and thus often do not have extra space for passengers that have missed their flights.  Good customer service often seems to have given way to airlines’ “me first” attitude in the name of hearing the highest profits possible by nickel-and-diming most aspects of airline travel on, at least, economy class.

Feeling empathetic towards the airlines?  Don’t.  Full or nearly full flights in conjunction with declining gas prices have enabled U.S.-based airlines to earn the highest profit margins in decades.  One trade group estimates that airline made 6% profit margins in 2014, higher than the highest rates in the 1990s.  Of course, the task of businesses is to make as much money as they can.  But at least they should live up to their own contracts of carriage and other contracts principles just as they claim passengers and website developers should.

Here’s a hat tip to Professor Miriam Cherry and other contracts professors on a well-known industry list serve for news about this story.  All opinion and thoughts above are my own.

January 2, 2015 in Commentary, Contract Profs, Contracts Profs Weekly Spotlight, Current Affairs, Famous Cases, In the News, Recent Cases, Travel | Permalink | Comments (0) | TrackBack (0)

Monday, December 29, 2014

Weekly News Roundup

TargetOn December 18th, the District Court for the District of Minnesota ruled on defendant's motion to dismiss in In re: Target Corporation Customer Data Security Breach Litigation.  The case relates to the hacking of 110 million Target customers last December.  Plaintiffs allege violations of state consumer protection laws, negligence and breach of contracts, both express and implied, among other things.  The court dismissed most claims with prejudice.  The breach of an implied contract claim survived, as a jury will have to determine whether plaintiffs can establish the terms of an implied contract.   The court dismissed the breach  of an express contract claim without prejudice.   Plaintiffs will be given an opportunity to specify what federal laws Target allegedly breach through its allegedly inadquate measures for safeguarding its customers' data.

And if you are looking for evidence that airlines really don't care what we think of them, look no further than United's motion to dismiss in Mamakos v. United Airlines, Inc.  In the case, plaintiff alleges the following:

  • United Airlines
    Photo by Luis Argerich
    She saw an empty seat on one of three legs of her trip from New York to Alaska;
  • She moved into that seat;
  • Stewardesses informed her that she would have to pay a $109 premium for the seat;
  • She did not want to pay and so moved back to her original seat;
  • United then removed her from the aircraft and, when she resisted had her arrested; and
  • United then cancelled her ticket and her return ticket.

United accepts the truth of these allegations for the purposes of its motion but maintains that it still did not breach its contract with plaintiff because of Rule 5(B) of United's Contract of Carriage (incorporated by reference into plaintiff's ticket), which permits United to cancel a reservation if the passenger refuses to pay for the applicable Ticket.  Apparently, once plaintiff's behind made contact with a premium seat, she was bound to pay or be forcibly ejected form the aircraft.  Sheesh.  

Really United?  Worth litigating?

December 29, 2014 in In the News, Recent Cases, Travel | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2014

First Circuit Uses Its Thesaurus and Denies Motion to Compel Arbitration

P. M. Roget, Author of the First Thesaurus

In Joca-Roca Real Estate, LLC v. Brennan, the First Circuit affirmed the District Court's denial of plaintiff's motion to compel arbitration after nine months of discovery, which involved 16 depositions and four telephone conferences with the District Court Judge to settle discovery disputes.  As the learned court put it, plaintiff provided no explanation for its cunctation.  The District Court denied to motion to compel arbitration, holding that plaintiff had waived its right to arbitrate.  The First Circuit affirmed.

The First Circuit began its analysis with the standard for a finding of implied waiver by conduct:

In determining whether a conduct-based waiver has occurred, we ask whether there has been an undue delay in the assertion of arbitral rights and whether, if arbitration supplanted litigation, the other party would suffer unfair prejudice.

Although the sage court noted plaintiff's asseveration that the District Court had applied the wrong standard, the perspicacious court considered a salmagundi of factors in determining that the District Court had applied the correct standard in finding prejudice.  The sagacious court, for example, noted that plaintiff gave no reason for its inital decision to eschew arbitration and that its motion to compel was not raised in a timeous manner.  In fact, the timing suggested that plaintiff had decided to try arbitration because it was facing an impending motion for summary judgment and the sapient court would not "condone the use of an arbitration clause as a parachute when judicial winds blow unfavorably."

The standard for showing prejudice in cases such as this one is not terribly exacting.  Defendant had to pay for nine months of discovery.  Time is also a valuable commodity, and the transfer into a new forum would have caused additional delay.  Delay itself does not constitute prejudice, but here, the erudite court noted, delay was protracted and the litigation-related activities were copious.  

December 26, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2014

News Flash: Guy Who Never Signed Arbitration Agreement Can Not Be Forced into Arbitration

Really?  This is a thing now?  The District Court held that a company can bind a consumer to an arbitration provision and class action waiver in a rolling contract of adhesion.  Fortunately, the Ninth Circuit didn't buy it, but why is it even a close call?

9th CirIn November 2011, Erik Knutson bought a Toyota which came with a 90-day subscription to Siriux XM Radio (Sirius).  About a month into his trial subscription, Sirius sent Knutson a "welcome kit."  That welcome kit included a customer agreement with an arbitration clause and class action waiver.  According to the customer agreement, its terms became binding if Knutson did not contract Sirius to cancel his 90-day trial within three business days.  Knutson also received unsolicited phone calls from Sirius on his cell phone.  He filed a putative class action suit against Sirius for violations of the federal Telephone Consumer Protection Act.  

Sirius cited to the arbitration clause and moved to compel arbitration.  The District Court granted Sirius's motion to compel.  In Knutson v. Sirius XM Radio, Inc. The Ninth Circuit reversed.  The opinion is unanimous and careful.  The Court explains why Mr. Knutson never assented to any terms and was not bound in any way to Sirius.  Knutson never bought anything from Sirius and never knew that he was entering into a contact.  

December 23, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2014

Eleventh Circuit Rejects Claim for a Million Dollar Unilateral Contract

This case arises out of a fact pattern with which many contracts profs may already be familiar.  It's a new twist on Leonard v. PepsiCo., alas with the same result.

James Cheney Mason (Mason) represented defendant Nelson Serrano in a capital murder trial.  Mason gave an interview on NBC news in which he pointed out that his client could not have committed murders in Bartow, Florida on the same day that he was on a business trip in Atlanta Georgia.  Surveillance cameras from the La Quinta Inn in Atlanta established Serrano's presence at the hotel both before and after the murders.  The prosecution claimed that Serrano flew to Orlando, drove to Bartow, committed the murders, drove to Tampa, and flew back to Atlanta in time to show up on the surveillance tapes once again.  Serrano was convicted and sentenced to death.

Dunce_cap_fLaw student Dustin Kolodziej (Kolodziej) watched Mason's interview with NBC after it was edited for broadcast.  In the edited version that Kolodziej saw, Mason seemed to be offering a million dollars to anyone who could get off a plane in Atlanta and make it back to the La Quinta Inn in 28 minutes.  Kolodziej took this as a challenge and as a unilateral offer that he could accept by making the trip in 28 minutes or less.  Kolodziej recorded himself making the trip and sent the recording to Mason with a demand for payment.  Mason refused.

In Kolodziej v. Mason, the Eleventh Circuit upheld the grant of summary judgment to Mason.  In the unedited version of Mason's interview, it is clear that his challenge was directed at the prosecution and not erga omnes.  Moreover, the Eleventh Circuit found, no reasonable person could construe any statement that Mason made in either the edited or the unedited version of the interview as a serious offer to pay a million dollars to anybody who could travel from the airport to the hotel in 28 minutes.  According to the Court, the context in which the words were uttered (an attempt to poke holes in the prosecution's theory) and the hyperbolic nature of the alleged offer, with its familiar overtones of schoolyard braggadocio, were insufficient to establish Mason's willingness to enter into a contract.

The Court distinguished this case from the classics, Lucy v. Zehmer and Carbolic Smoke Ball and other, equally entertaining cases.  The Court was no more inclined to entertain Kolodziej's claim than it would be to declare Mason a monkey's uncle, if he had chosen that turn of phrase when attempting to illustrate the implausibility of the prosecution's timeline.  

The Court suggested that the entire suit was a result of Kolodziej's inadequate understanding of contracts doctrine (hence the duncecap image above, which by the way, does not represent Kolodziej).  The Court paraphrased Pope and suggested that a little legal knowledge is a very dangerous thing indeed.  As the Court explained,

Kolodziej may have learned in his contracts class that acceptance by performance results in an immediate, binding contract and that notice may not be necessary, but he apparently did not consider the absolute necessity of first having a specific, definite offer and the basic requirement of mutual assent.

This seems more than a bit unfair.  Kolodziej was wrong, but he may have thought it worth the gamble.  He lost his case, but he had quite an experience.  In any case, Judge Cardozo's remark in Allegheny College about how half-truths are sometimes mistaken for the whole truth seems more apposite.  

A classic form of statement identifies consideration with detriment to the promisee sustained by virtue of the promise. Hamer v. Sidway, 124 N. Y. 538, 27 N. E. 256, . . . . So compendious a formula is little more than a half truth. There is need of many a supplementary gloss before the outline can be so filled in as to depict the classic doctrine.

Mistakes of law such as Kolodziej's are common, and learned judges (and even law professors) as well as law students can make them.


December 18, 2014 in Commentary, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 10, 2014

Carving Out and ICAM

I read an interesting article the other day about parties to a contract agreeing to a broad arbitration provision and then carving out some issues that would be litigated should a problem arise. As with many others, I am involved in the International Commerical Arbitration Moot and, when I read the article, the issue seemed familiar. That is because this year's problem includes a contract with the following two provisions: 

"Art. 20 All disputes arising out of or in connection with the present contract shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with the said Rules. The seat of arbitration shall be Vindobona,
Danubia, and the language of the arbitration will be English. The contract, including this clause,
shall be governed by the law of Danubia.

Art 21: Provisional measures
The courts at the place of business of the party against which provisional measures are sought
shall have exclusive jurisdiction to grant such measures."

As you would expect, one of the parties in the problem asks for interim relief from the ICC while the other says interim measures are for courts only. Very often, if  not most of the time, the Moot problem is inspired by an actually case. Some years the students are able to find the case and, while it is never quite exactly on point, it can be helpful.

I could not help but wonder if this issue within this year's problem was inspired by a botched effort to carve interim relief out from the general provision. It would be pretty sloppy to draft something like the above but my hunch is that it has happened. 

I am curious to know how other ICAM team coaches have dealt with the issue. In particular, does the word "finally" in Article 20 have any particular signficance?

December 10, 2014 in Commentary, Conferences, Contract Profs, Current Affairs, Miscellaneous, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 3, 2014

Hawaiian Supreme Court Strikes Down Arbitration Provision as Fundamentally Unfair

HawaiiSupremeCourtLogoPlaintiffs in Nashimua v. Gentry Homes, Ltd.are a class of persons who believe that the defendant corporation built their homes without adequate high wind protection.  Gentry Homes, Ltd. (Gentry) moved to compel arbitration.  The arbitration provision at issue provided in relevant part:

The arbitration shall be conducted by Construction Arbitration Services, Inc., or such other reputable arbitration service that PWC shall select, at its sole discretion, at the time the request for arbitration is submitted.

By the time the case was filed, Construction Arbitration Services was no longer available, which left the choice of arbiter in Gentry's sole discreation.  The issue before Hawaii's Supreme Court was whether plaintiffs could claim that the provision was fundamentally unfair and therefore unenforceable or if they had to await the selection of an arbiter and then show actual bias.  

Following the Sixth Circuit's approach, he Court held that plaintiffs need not wait: "'Actual bias' need not be proven in a pre-arbitration challenge to an arbitrator-selection provision, where . . . the mere fact of one party’s 'exclusive control over the pool of potential arbitrators from which the arbitrator is selected' renders the arbitrator-selection process fundamentally unfair."  Applying the fundamental unfairness standard to the provision at issue, the Court found it fundamentally unfair.

The Circuit Court had orderd the parties to confer and agree upon an arbitral forum.  If they could not do so, the Circuit Court would select an appropriate arbitral forum.  The Supreme Court deemded this solution appropriate.  

December 3, 2014 in Recent Cases | Permalink | TrackBack (0)

Tuesday, December 2, 2014

Cato Institute Challenges Federal Circuit Opinion

Fed CirIlya Shapiro at the Cato Institute posted last week about Century Exploration v. United Statesdecided by the Federal Circuit on March 14, 2014.  Century Exploration (Century) acquired a lease for an oil field in the Gulf of Mexico.  It paid $23 million up front, plus $50,000 per year of the lease.  Century sought to protect itself against possible changes in applicable laws governing such leases through a contractual provision that no changes in law, other than reulgations created pursuant to the Outer Continental Shelf Lands Act (OCSLA), would affect Century's rights under the lease.  

In the wake of the Deepwater Horizon fire, Congress passed the Oil Pollution Act (OPA), which required oil exploration companies to develop worst case scenarios and certify that they have reserves adequate to address such worst cases.  Using a methodology required by the Interior Department, Century would have to have $1.8 billion on hand to deal with such a worst case.  When Century could not prove that it had such funds, the government sought to cancel the lease.  Century brought suit, relying on the contractual provision that protected it against regulatory changes, such as those promulgated pursuant to the OPA.  Ilya Shapiro questions whether the directives from the Interior Department even qualify as government regulations, as they were sent via e-mail by "a civil servant in the Interior Department."  The government filed for summary judgment, and both the Court of Federal Claims and the Federal Circuit sided with the government.

The Federal Circuit acknowledged that this case involves a lease provision nearly identical to that at issue in Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604 (2000).   However, in this case, the Federal Circuit found that the new regulations were actually promulgated pursuant to the OCSLA rather than the OPA.  As such, they were within the carve-out to the contractual provision protecting Century against regulatory changes.  In short, the Federal Circuit found this case distinguishable from Mobil Oil because of the nature of the regulations at issue.

To see in detail why the Cato Institute disgrees with that holding, you can have a look at its amicus brief.  Ilya Shapiro provides the following summary:

First, it is vital to the smooth operation of the government and the health of the economy that private entities are confident that the government will honor its contractual promises. Federal spending on contracts has totaled roughly $500 billion annually since 2008—or 15% of the federal budget. If businesses and individuals have no reason to believe that the government will live up to its business obligations, they’ll have no reason to work with it. The Federal Circuit’s decision, which condoned the government’s flagrant breach of its contract with Century, sets a bad example and must be reversed.

Second, and quite simply, words have meaning—in the Constitution, in statutes, and yes, in contracts. A “regulation” is a formal rule adopted and issued by an authorized agency, in accordance with strict procedural protocols. It’s not a casual email. Giving informal government policy documents created by civil servants the full weight of the law is unconstitutional, undemocratic, and unsustainable.

December 2, 2014 in Government Contracting, Recent Cases | Permalink | TrackBack (0)

Monday, December 1, 2014

Eleventh Circuit Says Pond Scum Dispute Must Go to Arbitration

11th CircuitCyanotech Corporation and Valensa International are competitors.  They nonetheless entered into two agreements under which Cyanotech was to sell algae to Valensa so that it could extract from said algae an antioxidant compound.  Both agreements were governed by arbitration provisions, except for carve-outs for litigation relating to breaches of confidentiality.  Valensa sued Cyanotech for tortious interference and breach of a confidentiality agreement.  The suit relates to the two parties' dealings with a third company, Mercola.  In short, Valensa was selling antioxidant to Mercola, and when Cyanotech found out, it offered to provide its antioxidant at a lower price.  Finding that the dispute fell within the carve-out, the District Court denied Cyantotech's motion to compel arbitration.

In U.S. Neutraceuticals, LLC v. Cyanotech Corp., the Eleventh Circuit reversed. Citing its decision in Terminix Int’l Co. v. Palmer Ranch Ltd. P’ship, 432 F.3d 1332 (11th Cir. 2005), the Eleventh Circuit held that the question of arbitrability must be determined by the arbiter.  The District Court determined that the case was not arbitrable under the second of the two contracts between the parties.  In so doing, said the Eleventh Circuit, the District Court decided an issue (which contract governs or do both govern) that only the arbiter could decide.

Judge Wilson dissented, agreeing with the District Court that the later agreement clearly governed because the later agreement is the one cited to in the complaint.  Although there is a general presumption in favor of arbitration, that presumption does not apply to the qeustion of which agreement governs.  Judge Wilson then carefully reviewed the terms of the later agreement and found that the District Court had correctly denied the motion to compel arbitration.

December 1, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Weekly News Roundup

EbolaFile this under "Nice!"  According to this report in the Durham Herald Sun, the parents of a child who has been prohibited from attending his private school, the Mount Zion Christian Academy, are suing the school for breach of contract.  The allegations of breach are based on the fact that the child's parents are paying tuition, but their son is forbidden to attend his school.  

And what has the child done to earn this suspension?  Nothing!  His parents were informed that the child would not be permitted to attend school becasue his father had traveled to Nigeria, and the school did not want to risk the spread of ebola.  The school took these precautions despite the fact that:

  • there is no ebola in Nigeria;
  • the father had no contact with anyone with ebola;
  • the father was screened at the airport and cleared.

The superintendent of schools failed to appear at a hearing and a judge ordered the school to allow the child to return

According to this story from the Spokane Spokesman Review, an Idaho judge has thrown out as invalid a $60 million contract that the state entered into with Education Networks of America (ENA) and Qwest to provide a broadband network that would link every Idaho high school.  The plaintiff in the case, Syringa, had partnered with ENA on one of the two bids on the contract, but when the state awarded the contract to ENA, it cut Syringa out of the allocation of work in the contract.  The court found this a violation of state procurement law.

Sandra Troian a physicist at CalTech, has filed a complaint against the school, alleging violations of the California whistleblower protection statute and breach of contract, among other things.  Troian alleges that she had reported that the school had been infiltrated by a spy who was sending classified information to the Israeli government.  Troian alleges that the school ignored her because it did not want to endanger a large contract with Jet Propulsion Laboratories.  She further alleges that the school has retaliated against her for blowing the whistle.  

November 24, 2014 in Government Contracting, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

Weekly News Roundup

According to this report on the International Business Times website, two children, through their mother, are suing Malaysia Airlines for breach of contract and negligence in connection with their father's death on Flight MH370.  Plaintiffs allege that the airline breached a safety agreement that it entered into with their father and the other passengers on the flight.  

Epstein-wendy-tAs reported here in the Bellingham Herald, the Indiana Supreme Court heard arguments on October 30th about the state's contract with IBM to privatize its welfare services.  The state was so disappointed with IBM's performance that it cancelled the contract three years into a $1.3 billion, ten-year deal.  Friend of the blog, Wendy Netter Epstein (pictured), has written about this case in the Cardozo Law Review.

Sunday's New York Times Magazine has a cover story pondering whether lawyers are going to do to football what they did to tobacco.  As an example of what this might look like we have this case filed on October 27, 2014 on behalf of Julius Whittier and a class of plaintiffs who played NCAA football from 1960-2014,  never played in the NFL, and have been diagnosed with latent brain injury or disease.  Mr. Whittier suffers from early-onset Alzheimer's.  The complaint alleges, among other things, breach of contract, based on NCAA documents requiring each member instittuion to look after the physical well-being of student athletes.  

November 10, 2014 in Government Contracting, In the News, Recent Cases, Sports, Travel | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

Recent Contracts News

As reported on JDSupra here, the Florida District Court of Appeal for the Fourth District, sitting en banc, held that while an insurer’s liability for coverage and the extent of damages must be determined before a bad faith claim becomes ripe, the insured need not also show that the insurer is liable for breach of contract before proceeding on the bad faith claim.

We have also learned from JD Supra of Piedmont Office Realty Trust v. XL Specialty Ins. Co., 2014 U.S. App. LEXIS 20141 (11th Cir. Oct. 21, 2014), in which the United States Court of Appeals for the Eleventh Circuit, elected to certify to the Supreme Court of Georgia the question of whether an insured’s payment obligations under a judicially approved settlement agreement qualify as amounts that the insured is “legally obligated to pay,” and if so, whether the insured’s failure to have obtained the insurer’s consent to settle resulted in a forfeiture of coverage.

FootballAccording this this report on Yahoo! Sports, Oklahoma State is suing the former Offensive Coordinator of its football team, Joe Wickline (who now is a coach for the University of Texas), and Wickline has countersued.  According to the report, Wickline's contract with Oklahoma State require that he pay the balance of his contract ($593,478) if he left for another position and was not his new team's play-caller. Wickline claims that he is calling plays at Texas.  What a bizarre thing to put in a contract.  It's a reserve non-compete!  In effect, Oklahoma State is saying that it would pay Wickline to call plays for a rival.

According to this report from the Courthouse New Service,  Ted Marchibroda Jr., the son of NFL Football coach Ted Marchibroda, filed a $1 million malpractice lawsuit against Sullivan, Workman & Dee and trial lawyer Charles Cummings , alleging breach of contract, professional negligence and breach of fiduciary duty.  In a 2011 lawsuit, Marchibroda accused sports agent Marvin Demoff of breaching an agreement to share the proceeds of NFL contracts for linebacker Chad Greenway. He claims that he is also owed money for recruiting center Alex Mack. 

Uploaded by Mark Schierbecker 

And continuing our sports report, notes that golfer Rory McIlroy is taking a break from the "sport" to pursue his legal claims against his former management company, Horizon Sports Management.  McIlroy claims that Horizon took advantage of his youth to extract an unconscionable 20% fee for McIlroy's off-the-course income.  Horizon is claiming $3 million in breach-of-contract damages.

In a simpler companion case to the Sharpe v. AmeriPlan Corp. case about which we blogged earlier today, the Eighth Circuit affirmed the District Court's denial of a motion to compel arbitration in Quam Construction Co., Inc. v. City of Redfield.  As reported here on, the case was relatively easy, since the contract at issue contained permissive language: "the parties may submit the controversy or claim to arbtiration."  Given such language, the Eighth Circuit agreed with the Distrcit Court that arbitration could not be compelled.

November 3, 2014 in In the News, Recent Cases, Sports | Permalink | TrackBack (0)

Fifth Circuit Finds Arbitration Clause Trumped By Dispute Resolution Mechanisms in Parties' Prior Agreements

PyramidThe Fifth Circuit's opinion in Sharpe v. AmeriPlan Corp. begins with a wise observation on the state of the law of arbitration.  "As the use of arbitration clauses grows, so too do the legal arguments surrounding their validity and enforceability."  The plaintiffs in the case raised all of the traditional objections to arbitration clause, labeling it: not  supported by consideration, illusory, unconscionable, not broad enough to cover the dispute in the case, and waived.  The Fifth Circuit rejected all of these arguments and nonetheless found for plaintiffs on the ground that the arbitration agreement could not be harmonized with dispute resolutions found in earlier agreements among the parties still in effect.

The plaintiffs were "independent business owners" (IBOs) who earned their income from AmeriPlan by selling health plans and recruiting additional IBOs.  Upon recruiting the requisite number of IBOs, they earned the statue of Sales Directors, who can earn an income stream (down lines) from the commissions of the IBOs they had recruited.  All named plaintiffs were Sales Directors when AmeriPlan terminated them without cause in 2011.  In doing so, it also deprived plaintiffs of their down lines.  Plaintiffs sued, alleging that they had been promised lifetime vested residual income.

5th CircuitThe parties relationships were governed by three agreements.  Three of the four named plaintiffs entered into Sales Director agreements with AmeriPlan that provided for mediation followed by litigation in the case of a dispute.  After a jury returned a $5.5 million verdict against AmeriPlan in favor of a Sales Director, AmeriPlan added an arbitration clause to its Policy Manual.  Plainitffs accepted this revision either by clicking an "I agree" icon on AmeriPlan's website or because AmeriPlan sent them notice of the change in the form of a revised Policy Manual that contained the new arbitration clause on page 22.

Plaintiffs sued in California.  AmeriPlan had the case tranferred to federal court and then changed the venue to Texas.  It then moved to compel arbitration.  The District Court granted the motion while deleting two provisions that it found unconscionable.  Plaintiffs appealed to the Fifth Circuit.  The Fifth Circuit reversed as to three of the four plaintiffs.

The Court noted that an amendment to an agreement would ordinarily effectively supersede a prior, related agreement.  Here, however, the Plaintiffs' Sales Director agreements provided they could only be amended through a written agreement executed by all parties.  As that did not occur, here, the three plaintiffs whose agreements reserved a right to litigation retained that right.  The survival of the original agreements was especially clear in that AmeriPlan had relied on language in those agreements in order to transfer the case from California to Texas.  AmeriPlan conceded as much but claimed that the agreements could be harmonized.  But the Fifth Circuit found that the detailed two-tiered plan in three of the plaintiffs' Sales Director agreements clearly required mediation followed by litigation in Texas.  That structure could not be reconciled with the revised Policy Manual's arbitration clause.  The Court was especially secure in its reading of three of the plaintiffs' Sales Director agreements because the fourth plaintiff had entered into an earlier version fo the agreement which lacked such details.  The Court held that the addition of the detailed language manifested AmeriPlan's clear commitment to its two-tiered approach of mediation followed by litigation of disputes governed by the Sales Director agreements.

The Fifth Circuit reversed and remanded with respect to three of the plaintiffs.  The fourth will have to arbitrate her claims.  The Court acknoweldged that the result might seem arbitrary, but it was in fact simply a product of the Court's effort to give effect to the differing terms of the parties' agreements. 


November 3, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 28, 2014

Second Circuit Upholds District Court, Rejecting Indian Commerce Clause Claim

2d CircuitIn The Otoe-Missouria Tribe of Indians v. N.Y. State, Dep't of Financial Services, the Second Circuit upheld the District Court's denial for a preliminary injunction sought by two Native American tribes and related entities (collectively the Tribes) engaged in high-interest, short-term loans offered over the Internet.  The interest rates on the loans exceeded state caps, and so the Department of Financial Services (the Department) sought to bar them.  The Tribes sought a preliminary injunction, claiming that the bar violated the Indian Commerce Clause of the U.S. Constitution. 

The Tribes' claims turned on whether the loans took place on their sovereign territory or in New York State.  The Second Circuit observed that, although the loans were initiated on the Tribes' territories, they flowed across New York State.  When the Department shut down the Tribes' loan operations, it had devastating effects on the tribal economies, and so the Tribes sued to enjoin the bar on their loans.  

On review of the denial of the motion for preliminary injunction, the Second Circuit found no clear error.  It concluded that, while the Tribes may ultimately prevail, the record is at this point too murky, and thus the Tribes could not establish their likely success on the merits.

October 28, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2014

11th Circuit Refuses to Compel Arbitration Where Forum Was Unavailable

11thCircuitSealAccording to his complaint, Abraham Inetianbor borrowed $2600 from Western Sky Financial, LLC in January 2011.  Over the next twelve months, he paid $3252 to the servicer of the loan, CashCall, Inc. (CashCall).  Believing that he had paid off the loan, Mr. Inetianbor then refused further payments. According to the complaint, CashCall responded by reporting a default to credit agencies, harming Mr. Inetianbor's credit rating.  He sued, alleging defamation and usury, as well as a violation of the federal Fair Credit Reporting Act.

 CashCall moved to compel arbitration pursuant to a clause in the loan agreement that called for "Arbitration, which shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative . . . .”  The District Court initially granted the motion, but it proved impossible for the parties to arbitrate since the Sioux Tribe "does not authorize arbitration."  Eventually, the District Court denied the motion to compel CashCall appealed.

Before the 11th Circuit, Inetianbor v. CashCall, Inc., CashCall argued that; 1) the failure of the arbitral forum should not void the arbitration agreement even if the forum selection is integral to the agreement; 2) even if that were the rule, it only applies when the forum clause is "integral" to the agreement, and this forum clause was not "integral"; and 3) the District Court erred in finding the aribral forum unavailable.  The Court rejected all three arguments.

First, under Circuit rules, the panel could not reverse a rule adopted by a previous panel.  Such a reversal could only occur by the entire Court sitting en banc.  Thus the panel was bound to hold to the Circuit's rule that arbitral agreements cannot be enforced where the forum fails and the forum clause is integral to the agreement.   Second, after a lengthy discussion, the Court concluded that the forum clause at issue in this case was integral.  Finally, the Court agreed with the District Court that the Tribe's involvement was essential and that arbitration involving the Tribe was unavailable.

Judge Restani, United States Court of International Trade Judge, sitting by designation, concurred.  She agreed with the majority's conclusion that the arbitration agreement was unenforceable, but she  would have struck it as unconscionable.


October 27, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

DC Circuit Allows Class Action against American Psychological Association to Proceed on Unjust Enrichment Claims

Very interesting case!  The American Psychological Association (APA) listed as "mandatory" an optional assessment that members paid annually with their dues.  The additional fees went to support the lobbying efforts of an affiliated organization, jthe American Psychological Association Practice Organization (APAPO).

GrouptherapyUpon discovery that the fee was optional, members of the APA experienced a range of emotions consistent with symptoms of outrage and moral indignation and filed a class action lawsuit to recover the fees.  The complaint stated three causes of action, but we are here concerned only with the first, unjust enrichment and constructive trust.  The District Court opined that the plaintiffs were unreasonable, if not delusional, if they thought the fees lobbying fees were mandatory, and it dismissed the suit.  Diagnosed as crazy, Plaintiffs asked for a second option, to which the District Court replied, "Okay, you're ugly too!"


But seriously folks, Plaintiffs sought their second opinion in the D.C. Circuit.

In In re: APA Assessment Litigation, the D.C. Circuit disagreed with District Court and reversed in part.  The District Court had dismissed the quasi-contract claim on the ground that such a claim cannot exist where there is an actual contract on the same subject matter.  The D.C. Circuit agreed with the District Court's statement of the law but disagreed with its application to these facts.  The special assessment to support APAPO formed no part of the plaintiffs' contractual agreement with the APA.  As the Court noted, citing the Restatement (Third) of Restitution & Unjust Enrichment, mistaken payment of money not due is one of the core cases of restitution.  It typically applies in a contractual context in which one party negligently or fraudulently charges the other excessive fees for services that exceed the sope of the contract.

The Court was unmoved by the APA's arguments that it was not unjustly enriched because the plaintiffs benefited from APAPO's lobbying efforts.  The plaintiffs had no interest in APAPO's functions.  They were induced to make the payments because they wanted to retain their APA membership, not because they wanted to support APAPO.  Finally, the Court found that it was not unreasonable for Plaintiffs to believe that the payments were mandatory.

Nor were they ugly.

October 7, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

New Jersey Supreme Court Finds Arbitration Agreement Unenforceable for Lack of Notice

The New Jersey Supreme Court rendered a decision on September 23 that found an arbitration provsion unenforceable because the language was insufficient to alert a reasonable consumer that she was surrendering a constitutional or statutory right.  The plaintiff, Patricia Atalese, entered into a contract with U.S. Legal Service Group, L.P. (USLSG) for debt adjustment services.  Atalese paid USLSG approximately $5,000  for its services.  She alleged that USLSG did very little for her and further, that it failed to mention that it was not a licensed debt adjuster in New Jersey.  She sued, alleging that USLSG violated the Consumer Fraud Act and other consumer law.

The contract contained the following provision:

Arbitration: In the event of any claim or dispute between Client and the USLSG related to this Agreement or related to any performance of any services related to this Agreement, the claim or dispute shall be submitted to binding arbitration upon the request of either party upon the service of that request on the other party. The parties shall agree on a single arbitrator to resolve the dispute. The matter may be arbitrated either by the Judicial Arbitration Mediation Service or American Arbitration Association, as mutually agreed upon by the parties or selected by the party filing the claim. The arbitration shall be conducted in either the county in which Client resides, or the closest metropolitan county. Any decision of the arbitrator shall be final and may be entered into any judgment in any court of competent jurisdiction. The conduct of the arbitration shall be subject to the then current rules of the arbitration service. The costs of arbitration, excluding legal fees, will be split equally or be born by the losing party, as determined by the arbitrator. The parties shall bear their own legal fees.

 The NJ Supreme Court found that despite arbitration's "favored status," not every arbitration clause, "however phrased," will be enforceable.  NJ consumer law required that consumer contracts be written in a "simple, clear, understandable and easily readable way."  Arbitration clauses, like other contractual clauses, must also be phrased in "plain language that is understandable to the reasonable consumer."

Here, the arbitration clause was on page 9 of a 23 page contract.  It provided no explanation that the plaintiff was waiving her right to sue in court for breach of her statutory rights.  The provision also did not explain the meaning of arbitration or indicate how it differed from a court proceeding.  Finally, the court found that it was not written in plain language that would be "clear and understandable to the average consumer that she is waiving statutory rights."  The court concluded:

"In the matter before us, the wording of the service agreement did not clearly and unambiguously signal to plaintiff that she was surrendering her right to pursue her statutory claims in court.  That deficiency renders the arbitration agreement unenforceable."

Very nice work, Supreme Court of New Jersey, for recognizing that "reasonable consumers" should not be expected to sift through fine print and make sense of legal mumbo jumbo.

Arbitration: In the event of any claim or dispute between Client and the USLSG related to this Agreement or related to any performance of any services related to this Agreement, the claim or dispute shall be submitted to binding arbitration upon the request of either party upon the service of that request on the other party. The parties shall agree on a single arbitrator to resolve the dispute. The matter may be arbitrated either by the Judicial Arbitration Mediation Service or American Arbitration Association, as mutually agreed upon by the parties or selected by the party filing the claim. The arbitration shall be conducted in either the county in which Client resides, or the closest metropolitan county. Any decision of the arbitrator shall be final and may be entered into any judgment in any court of competent jurisdiction. The conduct of the arbitration shall be subject to the then current rules of the arbitration service. The costs of arbitration, excluding legal fees, will be split equally or be born by the losing party, as determined by the arbitrator. The parties shall bear their own legal fees. - See more at:
Arbitration: In the event of any claim or dispute between Client and the USLSG related to this Agreement or related to any performance of any services related to this Agreement, the claim or dispute shall be submitted to binding arbitration upon the request of either party upon the service of that request on the other party. The parties shall agree on a single arbitrator to resolve the dispute. The matter may be arbitrated either by the Judicial Arbitration Mediation Service or American Arbitration Association, as mutually agreed upon by the parties or selected by the party filing the claim. The arbitration shall be conducted in either the county in which Client resides, or the closest metropolitan county. Any decision of the arbitrator shall be final and may be entered into any judgment in any court of competent jurisdiction. The conduct of the arbitration shall be subject to the then current rules of the arbitration service. The costs of arbitration, excluding legal fees, will be split equally or be born by the losing party, as determined by the arbitrator. The parties shall bear their own legal fees. - See more at:

October 6, 2014 in Miscellaneous, Recent Cases | Permalink | Comments (2) | TrackBack (0)

Seventh Circuit Rejects Steak n Shakes' Motion to Stay n Compel

While we were busy with the virtual symposium, we got a bit behind on reporting on cases.  This one is from late August.

Steak n shake

Three Steak n Shake (SNS) franchisees brought suit against SNS seeking a declaratory judgment that, under the terms of their franchise agreements, they may set their own prices and are not required to participate in corporate promotions.  The case resulted from a corporate takeover in 2010, after which SnS initiated new pricing policies that plaintiff franchisees claim adversely affected their businesses.

The franchisees' agreements with SNS provided that the latter “reserve[d] the right to institute at any time a system of nonbinding arbitration or mediation.” One month after plaintiffs filed suit, SNS introduced an arbitration policy requiring franchisees to engage in nonbinding arbitration at SNS's request.  Pursuant to that policy, SNS filed a motion in the District Court to stay proceedings and compel arbitration.  The District Court denied the motion, finding the arbitration agreement "illusory" because one-sided and unenforceable.  In addition, the District Court found that the new arbitration policy could not apply retroactively to claims that had already been filed and that the Federal Arbitration Act (FAA) did not apply to non-binding arbitration.

In Druco Restaurants, Inc. v. Steak N Shake Enterprises, Inc., the Seventh Circuit agreed with the District Court's first ground for decision and did not reach its alternative grounds.  Applying Indiana law, the Seventh Circuit found the arbitration agreement illusory.  The Court noted that SNS was free to exercise or not exercise its right to arbitration at whim.  The company also retained complete discretion to determine venues where and procedures under which arbitration would take place.  Where so much is uncertain, the Seventh Circuit noted, the agreement is vague, indefinite and unenforceable.


October 6, 2014 in Food and Drink, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 1, 2014

Undercover Informant Sues DEA for Breach Contract for Injuries Sustained After Kidnapping

In a recently unsealed ruling, the U.S. Court of Claims has awarded $1.1 million in damages for breach of contract to a former undercover Drug Enforcement Administration ("DEA") informant who was kidnapped in Colombia and held captive for more than three months.

Here's a flavor from the opening paragraphs of the 52-page decision:

This breach-of-contract action comes before the Court after a trial on damages. In its decision addressing liability, the Court determined that the Drug Enforcement Administration (“DEA”) breached an implied-in-fact contract and its duty of good faith and fair dealing by failing to protect Plaintiff, an undercover informant. During an undercover operation in Colombia, Plaintiff, known as “the Princess,” was kidnapped and held captive for more than three months. Plaintiff claims that her kidnapping and prolonged captivity caused the onset of her multiple sclerosis and seeks compensatory damages in the amount of $10,000,000 for financial losses, inconvenience, future medical expenses, physical pain and suffering, and mental anguish arising from Defendant’s breach.

Because Plaintiff demonstrated that Defendant’s breach of contract was a substantial factor in causing the Princess’ kidnapping and captivity, and triggering her multiple sclerosis, the Court awards the Princess the value of her life care plan, $1,145,161.47.  Plaintiff failed to prove any other damages.

The decision covers a number of issues related to damages.  For example, the court holds that it was reasonably foreseeable at the time of contracing that a DEA informant would be kidnapped in Colombia and suffer resulting health issues:

The inquiry under foreseeability in this case is whether Plaintiff's damages, namely her multiple sclerosis and the ensuing costs of her medical care, were reasonably foreseeable at the time of contract formation. Anchor Sav. Bank, FSB, 597 F.3d at 1361; Pratt v. United States, 50 Fed. Cl. 469, 482 (2001) (“Whether damages are foreseeable is a factual determination made at the time of contract formation.”) (citing Bohac v. Dep't of Agriculture, 239 F.3d 1334, 1340 (Fed.Cir.2001)). Hence, Plaintiff must show that both the kidnapping, her ensuing health problems, and consequential financial costs of medical care constituted the type of loss that was reasonably foreseeable when the parties formed their implied-in-fact contract.

Plaintiff has established that her kidnapping was reasonably foreseeable at the time the contract was entered into. From the outset ASAC Salvemini voiced concerns for the Princess' safety, and DEA moved her family because of the dangers of her operation as part of her agreement to work with DEA. Evidence revealed that kidnappings were not uncommon in Colombia at the time. 2007 Tr. 270 (Princess); 2007 Tr. 1523 (Warren) (“[W]e got the report [the Princess] had been abducted. That was not an unusual report in Colombia then or now unfortunately.”). Plaintiff established that harm to undercover informants, including injury and death, were reasonably foreseeable consequences of a breach at the time of contract formation.

Knowing, as DEA did, of the dangers inherent in undercover operations aimed at highechelon Colombian traffickers, especially kidnapping in Col ombi a–a “hot spot”–the Princess' kidnapping and resultant harm to her health was a reasonably foreseeable type of injury at contract formation. The Court recognizes that DEA likely did not specifically foresee that the injury would be multiple sclerosis, but this is not a requirement for a showing of foreseeability. Anchor Savings Bank, FSB, 597 F.3d at 1362–63 (noting that “the particular details of a loss need not be foreseeable,” as long as the mechanism of loss was foreseeable) (quoting Fifth Third Bank v. United States, 518 F.3d 1368, 1376 (Fed.Cir.2008)).

Not the ordinary intrigue of the average contracts case.

SGS-92-X003 v. U.S., No. 97-579C (Ct. of Fed. Claims, filed Aug. 30, 2014)(republished Sept. 26, 2014).

October 1, 2014 in Government Contracting, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)