Thursday, May 25, 2017
A recent case out of Arizona, Russo and Steele, LLC v. Tri-Rentals, Inc., No. 1 CA-CV 16-0042, deals with breach of the covenant of good faith and fair dealing, which is read into every Arizona contract. In the case at issue, though, Tri-Rentals's behavior was not "self-dealing," and Tri-Rentals argued that self-dealing, or spite, or ill will was required to breach the covenant. Not so in Arizona, though. Arizona does not require self-dealing conduct. Rather, the covenant is breached if you prevent the other party from receiving the benefit of the bargain, whether or not you do so out of spite or some advantage to yourself.
(The case itself is an interesting one, stemming out of collapsed tents at a car show that resulted in damage to several classic vehicles.)
Wednesday, May 24, 2017
Here is just a quick straightforward case out of the Eastern District of Michigan, Pittman v. Pacifica Loan Pool, LLC, Case No. 15-13877 (behind paywall), about the effect of a breach of contract on the other party to the contract. In the case, Pittman alleged that Pacifica breached the agreement by failing to pay the required property taxes. However, Pacifica countered that Pittman breached the agreement first by failing to make his required monthly payments. The court noted that the party who commits the first substantial breach of contract cannot sue the other party for failing to perform. Pittman's failure to make his required payments was a substantial breach on his part, and predated Pacifica's behavior. Therefore, he could not maintain this cause of action.
Tuesday, May 23, 2017
A recent case out of Texas, Naquin v. Cellio, No. 14-04054-431, deals with "as-is" clauses and fraudulent inducement in the context of a real estate transaction.
Naquin bought a home in 2012. The home purchase contract stated that she was buying the home "in its present condition." Naquin hired an inspector to look the home over, received a report, and decided to buy the house. Naquin then claims to have discovered, inter alia, plumbing issues caused by a toilet that had been added to a pool house on the grounds, and claims that she had been fraudulently induced to buy the house by the Cellios' misrepresentations.
The court upheld the enforceability of the "as-is" clause. There was no disparity of bargaining power between the parties, and both parties were represented by real estate agents in the transaction. The parties specifically negotiated over the "as-is" clause and agreed to give Naquin the right to complete an inspection of the property before closing the transaction (which Naquin did).
However, the "as-is" clause would not be enforceable of the Cellios made a fraudulent misrepresentation. It was true that the Cellios executed statements saying they were unaware of any issues with the plumbing and that they had not done anything to the home without the necessary permitting (although it also appeared to be true that the Cellios thought this statement was true when they made it). But, at any rate, it was also true that Naquin knew that there were plumbing issues and structural defects because those had come up in the inspection. The inspection report, the court held, should have trumped the Cellios' representations, and Naquin should have relied on that. In fact, when Naquin hired the inspector, it was an indication that she was not relying on the Cellios' word. Therefore, she couldn't prove that she had been fraudulently induced.
Wednesday, May 10, 2017
In a recent case out of the Western District of Pennsylvania, Argue v. Triton Digital, Inc., Civil Action No. 16-133 (behind paywall), Argue, an engineer, brought suit alleging that his employer had been unjustly enriched by Argue's efforts. It's an interesting allegation. The court pointed out that what Argue was characterizing as "unjust enrichment" was really just him performing his job. He received a salary in exchange for his work, which included inventions, and his employer took that work and those inventions and used them to increase the value of its business. That wasn't unjust enrichment; the employer was entitled to do exactly what it did.
Complicating this further? Argue had an employment agreement. The court pointed out that unjust enrichment is a doctrine that's supposed to be used only when no contract exists between the parties. Here there was a written agreement that provided Argue's employer with the right to Argue's inventions on the job. He could not, therefore, argue unjust enrichment at all.
Monday, May 8, 2017
In a recent case out of the District of New Jersey, Saturn Wireless Consulting, LLC v. Aversa, Civ. No. 17-1637 (KM/JBC) (behind paywall), the court took a (light) "blue pencil" to a non-solicitation covenant in the parties' contract.
Saturn hired Aversa and they entered into a non-solicitation clause that prohibited Aversa from contact with any entity connected with Saturn, for the purpose of diverting work from Saturn, for a period of one year following Aversa ceasing to work for Saturn. Aversa resigned from Saturn and set up his own business that was partly in competition with Saturn. Saturn sought a preliminary injunction prohibiting Aversa from these activities based on the non-solicitation clause of the employment contract.
The court carefully interpreted the non-solicitation clause, noting that Aversa was restrained from doing some business with Saturn's customers but not restrained from doing any business with them. Rather, the non-solicitation said that the prohibited activities had to be "for the purpose of diverting work or business." If Aversa was working with some entities in some areas where Saturn was not operating--as he was--then those activities were permitted under the agreement.
The court did not, however, buy Aversa's argument that he did not run afoul of the non-solicitation clause because he did not contact the customer; the customer contacted him. The court noted that the clause had been expansively worded to include any "contact," not just solicitation, and therefore Aversa's returning of the customer's phone calls qualified.
Aversa also tried to argue that Saturn had not alleged any trade secrets or confidential information that Aversa knew that Saturn was trying to protect. Rather, Saturn's allegations were more generally about Aversa's relationships with the customer at issue. Aversa stated that Saturn was therefore trying to prevent him from using his general skills and know-how, which it could not do. However, the court found that Saturn had a legitimate interest in protecting customer relationships to some extent, independent of any trade secrets or confidential information. The evidence showed that Saturn invested resources to help Aversa build business relationships on Saturn's behalf. Aversa could not then turn around and use that investment to harm Saturn. However, the court made clear that this prohibition applied only to Aversa working with the same people he'd personally worked with while at Saturn. Otherwise, Aversa would be subjected to undue hardship in his chosen career field.
Friday, May 5, 2017
I haven't done a damages case in a while so here's one for you out of California, Wiring Connection, Inc. v. Amate, B264113.
The parties entered into a lease totaling 65 months at $6,252 per month. After signing the lease, though, Amate leased the property to someone else and Wiring then had to lease a different property, under a three-year lease for $7,500 a month. Wiring sued for breach of contract and won. The court then had to determine damages. The lower court stated that the proper measure of damages would be the fair market value of Amate's property, less the amount Wiring had agreed to pay for it in the breached lease. Amate called an expert witness who testified that $6,252 had been the fair market value of Amate's property. The lower court was skeptical of this expert testimony, but Wiring did not call any expert witnesses of its own. Rather, Wiring argued that the proper measure of damages was the difference between what it would have paid in rent over 65 months at Amate's property and what it would pay in rent over the same time period at the property it had had to rent instead once Amate breached the lease.
The lower court said that, based on the evidence in front of it, it could not calculate any difference between the fair market value of Amate's property and the amount Wiring was going to pay under the lease, and found that it therefore could not award any damages to Wiring. The lower court said it was unhappy with the result, since Amate's breach had been "egregious," but it felt its hands were tied on the matter.
The appellate court agreed with the lower court. The lower court's statement of the measure of damages was the correct one, and Wiring failed to prove that there had been any difference between the fair market value and what was in the lease. Therefore, Wiring got nothing.
I find this case a little curious because I find it difficult to believe that Wiring wasn't damaged in some way. Wiring is now paying substantially more for rent than it would have if the agreement had never been breached, after all. But it also seems like Wiring could have met its burden based on how much the new tenant was paying for Amate's property? I assume the new tenant was paying more (otherwise it would seem odd for Amate to breach, unless there was a personal relationship involved), and that that new tenant's monthly rate could be used to establish damages for Wiring. Probably not as high as the damages Wiring was seeking but at least something. But there is no discussion in the case of what the new tenant was paying, that I could see, so it either was less than Wiring was going to pay and so unhelpful to Wiring or Wiring simply ignored it in favor of putting all of their eggs in the basket of being compensated for the difference between their more expensive second lease.
Either way, this is a painful damages case from Wiring's perspective. A welcome one, of course, from Amate's perspective!
Thursday, May 4, 2017
Sometimes rights can get passed along like a game of telephone. A recent case out of California, M.U.S.E. Picture Productions Holding Corp. v. Weinbach, B261146 (behind paywall), deals with a mistake that voids the original contract for those rights.
Muse agreed to develop a film based on the book and screenplay "The Killer Inside Me," which Weinbach claimed to own the rights to. After about a decade during which Muse did not produce the film, Muse sold its rights to Windwings, and then Windwings sold its rights to Kim, who eventually produced a movie. In the meantime, Muse sued Weinbach for intentional misrepresentation during the original negotiation for the right, and Weinbach cross-claimed for breach of the agreement stemming from Kim's production of the movie. (Windwings and Kim were also involved in litigation with Weinbach, not relevant to this blog entry, but you can find a ruling from it here.)
Basically, Muse contended that Weinbach did not have the right to produce the film based on the novel at the time that he transferred those rights to Muse. Weinbach contended, however, that this was not a mistake of fact but rather one of judgment because it relied upon a later court interpretation of the extent of Weinbach's rights. The court agreed with Muse, however. Weinbach had repeatedly told Muse that he had the right to produce a movie from the book and never wavered from that, so it wasn't like Muse ever thought it was negotiating for a dubious right; Muse thought Weinbach had the right, because that's what Weinbach asserted. A later court ruling raised doubts, but Muse had had no reason to ever expect a later court ruling on the question. This mistake was material because Muse would not have entered into the contract if it had thought Weinbach didn't possess the right in question. And there was no evidence that Muse assumed the risk that Weinbach didn't have that right. Therefore, this mistake justified rescission of the contract.
Wednesday, May 3, 2017
A recent case out of Delaware, SRL Mondani, LLC v. Modani Spa Resort, Ltd., C.A. No. N16C-04-010 EMD CCLD, deals with forum issues. In the case, the parties had entered into a number of contracts. The contracts at issue in the dispute between them both contained forum selection clauses that disputes should be brought in Delaware court. A third contract between the parties, not explicitly at issue in the dispute, had a forum selection clause that disputes should be brought in Israeli court. Modani argued that the Israeli forum selection clause should control, but SRL was seeking to enforce the Delaware agreements, not the Israeli one, and so the court found the Israeli forum selection clause didn't matter.
In the alternative, Modani tried to argue that the action should be dismissed under forum non conveniens. Modani's argument was that the relevant documents were located in Israel. The court, however, noted that "modern methods of communication" meant it was relatively easy to get the documents over to Delaware. While Modani alleged that the relevant witnesses were located in Israel, it failed to explain exactly what testimony those witnesses might have and why they were relevant, so the court was not convinced. The court did acknowledge that Modani's principles were located in Israel and had no ties to Delaware but at all but the court also pointed out that the contracts at issue had resulted from negotiations between two sophisticated businesses with millions of dollars at stake, so it was unpersuaded by Modani's allegations of hardship. Because the dispute was about enforcement of contracts with clauses requiring the application of Delaware law, Delaware was the best forum.
Tuesday, May 2, 2017
Here's some fun with offers from Kirin Produce Co. v. Lun Fat Produce, Inc., Docket Number 1684 CV 03338-BLS2, a recent case out of Massachusetts.
The dispute revolved around whether any of Kirin's actions constituted an offer that Lun Fat could accept form a binding contract. Over about a month's time, Kirin sent to Lun Fat a series of spreadsheets proposing terms under which it would be willing to buy Lun Fat's assets. However, each of these spreadsheets was labeled in several places that they were "subject . . . to change," including "Change by both Seller & Buyer." Under these circumstances, Kirin failed to manifest any present intention to be bound and so none of those spreadsheets constituted an offer.
Lun Fat eventually responded to one of Kirin's spreadsheets with an email proposing a series of new terms, but the court found nothing in the email stated that this was a counteroffer and that Lun Fat was willing to sell if Kirin accepted those terms. At any rate, Kirin did not accept the terms but rather proposed new terms in response. The court construed that response as a rejection of any offer by Lun Fat and a counteroffer by Kirin.
Later, Lun Fat called Kirin on the phone and orally offered to sell Lun Fat's assets on the terms that had been in Lun Fat's e-mail. Even if Kirin had accepted that oral offer, though, it was ineffective because this was a deal for land and thus subject to the statute of frauds.
Therefore, there was never any contract between the parties.
Monday, May 1, 2017
A recent case out of Texas, Legoland Discovery Centre (Dallas), LLC v. Superior Builders, LLC, No. 02-16-00425-CV (behind paywall), reaffirms how difficult it is to prove that a party waived its right to arbitration through substantially invoking the judicial process.
In the case, Legoland notified Superior that it was terminating its contract due to alleged breaches on Superior's part. Superior then sued Legoland. Legoland responded, raising compulsory counterclaims. Superior than added as defendants the subcontractors that were identified by Legoland's counterclaims. A scheduling order was entered and the parties conducted some "basic" discovery, while Legoland systematically began settling with the subcontractors. A few days after it settled with the last subcontractor, twenty-two months after Superior had filed suit, Legoland moved to compel arbitration under the arbitration clause of its contract with Superior. Superior argued that Legoland had waived its right to arbitration because it had substantially invoked the judicial process, and the trial court agreed.
The appellate court reversed, however, noting that the burden is high and implied waiver is seldom found. Legoland had participated in the ongoing court case, but only in a routine manner. The discovery conducted by the parties had not been extensive, and Legoland did not seek summary judgment. It was true that Legoland had brought counterclaims but they were compulsory. It was also true that Legoland waited almost two years after the filing of the complaint to seek arbitration but in the interim it had been settling with the subcontractors, who had not agreed to the arbitration clause that Superior was contractually bound by, and it sought arbitration almost as soon as the last subcontractor had settled out. Therefore, the appellate court ordered the parties to arbitration pursuant to their contract.
Sunday, April 30, 2017
A recent case out of Maryland, Under Armour, Inc. v. Ziger/Snead, LLP, No. 802 September Term 2016, offers an interpretation of an expense-shifting clause in a contract. The clause in question read:
"If Architect [Ziger/Snead] employs counsel or an agency to enforce this Agreement, Owner [appellant] agrees to pay the attorneys' fees, costs, expenses, and losses incurred by Architect prior to and through any trial, hearing, and/or subsequent proceeding, relating to such enforcement."
Following a legal dispute and a jury verdict in the architect's favor, the architect moved for attorneys' fees, costs, expenses, and losses, pursuant to the contractual clause above. Under Armour refused to pay the amount characterized as "losses," which seem to have been mainly diverted employee time. Under Armour's stance was that "losses" was too vague a term to cover "staff time." Rather, Under Armour claimed that "losses" was the equivalent of the attorneys' fees, costs, and expenses that had already been listed.
The court, however, pointed out that "losses" was a term that had been negotiated by two sophisticated parties, and so must have some meaning. Other courts have held that diverted staff time can be included in losses. Therefore, where the contract did not mention staff time one way or the other, the court held it was permissible to conclude that the term "losses" meant to cover for diverted staff time.
Saturday, April 15, 2017
A recent case out of the Sixth Circuit, Vitamin Health, Inc. v. Hartford Casualty Insurance Co., No. 16-1724, settled a dispute between Vitamin Health and its insurance company over Vitamin Health's expenses defending against a false advertising suit. Bausch & Lomb alleged that Vitamin Health was making false statements about its own products in its advertisements. Vitmain Health sought coverage from Hartford as "personal and advertising injury," but Hartford denied defense.
The court agreed with Hartford. The "personal and advertising injury" covered under Hartford's policy was defined in the policy as disparagement of other people's goods or services. At issue in the false advertising case was Vitamin Health's statements about its own products, which were not disparaging. There was no "disparagement."
Vitamin Health's theory was that its statement about its products disparaged its competitors' products by implication. The Sixth Circuit didn't buy that theory, though. Vitamin Health's statements did not make claims about the superiority of its product compared to its competitors, so even if disparagement-by-implication were a valid doctrine. The case was simply about false advertising, not disparagement, and hence not covered by Hartford's insurance policy.
Friday, April 14, 2017
A recent case out of the Eastern District of Pennsylvania, Krist v. Pearson Education, Inc., Civil Action No. 16-6178, deals with whether a copyright holder's lawsuit can be governed by a contract between sublicensees with regard to forum selection. The answer: No.
In the case, a photographer, Krist, licensed hundreds of his photograph to a stock photography agency, Corbis. Corbis then sublicensed the photographs to third parties. Corbis and Krist had agreements permitting this sublicensing; Corbis also entered into agreements with the sublicensees, including Pearson.
Krist's allegations were that Pearson was using photographs outside of the terms of its contract with Corbis, resulting in copyright infringement. Pearson sought to transfer venue to the Southern District of New York, based on its forum selection clause in its agreements with Corbis. Although Krist was not a party to those contracts, Pearson argued that Krist's lawsuit was based on the contracts; Krist was a beneficiary of the contracts; and Corbis was acting as Krist's agent in entering into the contracts.
But the court noted that Krist had not asserted any contract claims. His claims were entirely copyright-based. While the case would require "consideration" of the Corbis-Pearson contracts, that was not enough to bind Krist to the forum selection clause in a contract that Krist was not a party to. Krist had no continuing control over Corbis's activities, and so had not had the ability to comment on or affect or influence Corbis's acceptance of the forum selection clause.
Wednesday, April 5, 2017
A recent case out of the District of Nevada, Greenstein v. Wells Fargo Bank, Case No. 2:14-cv-01457-APG-CWH (behind paywall), reminds us of the importance of the statute of frauds as a useful doctrine that can clarify when parties have entered into a contract and when they haven't. Greenstein contended that he and Wells Fargo had entered into an oral contract regarding modifying his existing home loan. However, Wells Fargo disputed that. The court agreed with Wells Fargo that there was no contract, because Greenstein at best had alleged that, during multiple telephone calls, Wells Fargo had represented that it "might" agree later to a modification. Wells Fargo did tell Greenstein that he needed to reduce his principal to qualify for a modification, but that was not the same thing as saying that he definitely would qualify for a modification if he paid down the principal (which, in any case, he did not do).
Greenstein apparently misinterpreted these conversations with Wells Fargo, none of which amounted to an offer or acceptance or even any material terms. This is precisely the sort of situation that the statute of frauds exists to try to alleviate: Because the contract involved land, it needed to be in writing. It never was, and surely any writing between the parties would have cleared up at least some of the misunderstanding between the parties. Oral contracts (alleged or existing) lend themselves easily to mistaken conclusions; making the land contract be in writing at least sometimes saves confusion and disagreement over these all-important terms.
Monday, April 3, 2017
University Decisions on Disciplinary Procedures Receive Deference; Cannot Be Arbitrary, Capricious, or in Bad Faith
A recent case out of the District of Nevada, Janati v. University of Nevada, Las Vegas School of Dental Medicine, Case No. 2:15-cv-01367-APG-CWH (behind paywall), discusses the leeway universities have in enforcing the policies in their student manuals. The student was suspended from UNLV Dental School for plagiarism, and, in addition to raising constitutional due process and First Amendment issues, she contended that UNLV breached its Student Policy Manual and as such was in breach of contract. UNLV agreed that the Student Policy Manual constituted a binding contract between the school and the student but contended that its decisions on disciplinary procedures under the manual were entitled to "significant deference."
The court agreed. The standard for determining if the university had violated its disciplinary procedure was "arbitrary, capricious, or bad faith," "without any discernable rational basis." The university's actions did not rise to that level in this case. The complaint concerning the student's Honor Code violations was required by the manual to "include specifics" of the conduct at issue, including any witnesses to the conduct. The complaint against the student here neglected to name two of the faculty members involved and left off the names of some of the witnesses, but the student admitted that she knew who everyone involved with the complaint was, even prior to its filing. There was also some confusion about whether the university failed to solicit information from one of the witnesses during the first Honor Council proceeding, but all of the parties agreed that, to the extent that witness was overlooked, he did provide information during the second proceeding the parties held.
The court found that none of those rose to the high bar of violation of the disciplinary procedures and therefore the student could not sustain a breach of contract claim.
Saturday, April 1, 2017
Here are the logos together, in happier times, from one of the movies at issue in this case, Henry Poole Is Here
A recent case out of California, Camelot Pictures LLC v. Lakeshore Entertainment Group, LLC, B269430, gives us a nice run-down on statute of limitations in contracts cases, in that state at least. The case involves breaches of "Equity Term Sheets" between two entertainment companies involved in making together the movies Pathology and Henry Poole Is Here. Unfortunately for Camelot in this case, it raised the issue of these breaches by Lakeshore too late.
Camelot sued Lakeshore in November 2013 and eventually won an award in excess of $300,000. The problem, though, was, as Lakeshore argued on appeals, Camelot's claim was outside the four-year statute of limitations governing breaches of contract in California. And the appellate court agreed.
The appellate court provided a summary of how the statute of limitations works for breaches of contract in California. Generally, the cause of action is considered to have accrued at the time of the breach, "regardless of whether any substantial damage is apparent or ascertainable." However, in "certain, limited circumstances," the accrual-on-breach rule can be replaced by the "discovery rule," which provides that breaches that are "committed in secret" and whose harm is not "reasonably discoverable" will be considered to have accrued on the date of the discovery of the breach, not the date the breach occurred.
The trial court found that the discovery rule applied, and that Camelot had not discovered Lakeshore's breaches until the summer of 2011, within the statute of limitations period. That date was the date on which Camelot was advised by a consultant that Lakeshore's alternate accounting methodology was not beneficial to Camelot. However, Camelot had known that Lakeshore was using an alternate accounting methodology--in violation of the Equity Term Sheets--since December 2008. On that date, Camelot explicitly raised the fact that Lakeshore was not complying with the terms of the Equity Term Sheets. Camelot simply failed to pursue this lack of compliance for several years. Lakeshore's breach was therefore not "committed in secret" such that the discovery rule should apply. Indeed, Camelot admitted that it knew about the breach as soon as Lakeshore committed it; Lakeshore made no efforts to conceal it. Camelot did not know the impact of that breach until much later, but it could have discovered the impact much sooner, had it employed a consultant sooner than three years later to look into Lakeshore's conduct. Therefore, the trial court's judgment for Camelot was reversed.
Friday, March 31, 2017
Wednesday, March 29, 2017
This is a health insurance case, but it's also a case about implied contracts.
In a recent case out of the Eastern District of California, San Joaquin General Hospital v. United Healthcare Insurance Co., No. 2:16-cv-01904-KJM-EFB (behind paywall), the hospital sued the health insurance company after it refused to pay the entirety of the bills the hospital sent to it. The hospital alleged that it had contacted the insurance company to obtain authorizations for the medical services in question and that the insurance company had orally authorized such care. The hospital therefore argued that the two parties had an oral or implied-in-fact contract and the insurance company's refusal to pay the whole bill was a breach of that contract.
The insurance company moved to dismiss the claim but the court disagreed. It found that the complaint alleged the communications I outlined above, and also alleged that the insurance company had paid some of the bill and was refusing to pay the rest. The court found that this partial performance on the part of the insurance company was enough to indicate the presence of an implied-in-fact contract such that the hospital's claim could survive the motion to dismiss.
The hospital also pled a cause of action for quantum meruit, which the insurance company also moved to dismiss, partly on the grounds that the insurance company claimed to receive no benefit from the hospital's actions. The hospital argued in response that it performed services for the insurance company's customers, which thereby benefitted the insurance company. My favorite line of this decision comes during the analysis of this cause of action: "It is plausible on its face that the patients received a benefit from the Hospital's services." Ha. I get why it's phrased that way but it makes me laugh. Maybe. Maybe you got a benefit by being treated for illness or injury by a hospital. Maybe. Seems plausible, at least. Somewhat believable that going to a hospital when ill or injured and receiving services to treat your condition might benefit you in some way.
Sunday, March 19, 2017
In case you have not yet heard about the recent First Circuit Court of Appeals case discussing the legal importance of a comma, here goes: A Maine statute lists the following activities as not counting for overtime pay:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of: (1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.
Does that mean that drivers can get overtime because driving does count for overtime since “packing” covers both “shipment or distribution”? Or should the sentence be read as “packing for storage” as one thing and “distribution” another, thus precluding the drivers from earning overtime pay?
Circuit judge David J. Barron concluded that “the exemption’s scope is actually not so clear in this regard. And because, under Maine law, ambiguities in the state’s wage and hour laws must be construed liberally in order to accomplish their remedial purpose, we adopt the drivers’ narrower reading of the exemption.”
So, commas still matter. Consider too how “I love my parents, Lady Gaga and Humpty Dumpty” and “I love my parents, Lady Gaga, and Humpty Dumpty” are a little different. Language aficionados take note! Precise drafting still matters. Was this an outcome-oriented holding? Perhaps. But if so, a holding in favor of workers over a company in a case of interpretive doubt may, in today’s increasingly tough economy for middle and low-income earners, not be such a bad idea from a public policy point of view.
The case is O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. 2017).
Friday, March 17, 2017
A group of plaintiffs suffering from glaucoma bought eye drops manufactured by six pharmaceutical companies. They claimed that the eye drops were unnecessarily large (no, let’s not go there this time): all drops sold by these manufacturers were larger than 16 microliters (equal to 10% of a tablespoon). The plaintiffs claim that unnecessarily large eye drops are wasteful because the human eye can only contain so much fluid. Anything in excess of that will simply overflow and be wasted, which is a waste of money.
The amount of fluid that the human eye can contain without overflowing varies from person to person. The defendants asserted that the amount often exceeds 16 microliters. Further, the active ingredient in each drop is only about 1% of the drop. The smaller the drop, the less therapeutic effect, they claimed (without explaining why, for example, two drops could not simply be applied by those with larger eyes…). Defendants also claimed that larger drops helps those with unsteady hands, such as the elderly, because “the smaller the drop, the likelier they are to miss.” Now, at least that makes sense… (not!).
As was said on the listserv, this is arguably not even a contract law case at all, especially because no allegation of misrepresentation, breach of contract, or the like was asserted. In the words of opinion author Judge Posner, this is merely a case of “you can do better by us” asserted by plaintiff consumers. “That is all they are arguing.” However, said Posner, “[o]ne cannot bring a suit in federal court without pleading that one has been injured in some way (physically, financially—whatever) by the defendant. That's what's required for standing. The fact that a seller does not sell the product that you want, or at the price you'd like to pay, is not an actionable injury; it is just a regret or disappointment—which is all we have here, the class having failed to allege ‘an invasion of a legally protected interest.’”
So, what do we have here? No contracts violation, perhaps. Consumer fraud under the respective state acts? Apparently not. What we seem to have, however, is another instance of Corporate America taking advantage of consumers with the consent of even the federal judicial appellate system. Of course any product that is larger than what is needed per “portion” is wasteful and thus arguably taking unnecessary advantage of consumers. Whether or not that can be framed as an actionable legal issue in our system is another story altogether, sadly. Even worse: companies do apparently not want to do right by their own customers, in this case often elderly folks going blind!
This is, of course, not the only instance of needless and blatant consumer fraud (for that is what these instances are, at least in the common, if not the legal, sense of the word). More examples:
- When you buy lotion, it is next to impossible to get the last, oh, 20% out of those pump-type containers unless you unscrew the pump and pour out the lotion.
- Almost all perishable food items are sold in much larger portions than what is needed for most of us – think cottage cheese, yoghurt, lunch meats (OK, apart from those itty bitty bags, those are great), milk, you name it. People needing more could just buy two items! (That’s how it’s done with great success in many European countries, but heaven forbid that we ever learn anything from other countries.) The rest of us often have to throw out much of the food as it doesn’t last that long.
- How about packaging? Huge bags of chips that are only 1/2 full? Same for cereal boxes? Sun screen spray bottles that are also only 1/3 full?
- OK, I’m in a crappy mood about companies and organizations today, I admit. Of course the capitalist model is the best one, etc. etc. But it would be nice if more companies would focus more on decency, less waste in packaging and eventual product usage, and consumer needs. This eye drop story really is one of forcing consumers to waste product and thus money. Let’s just call a spade a spade.
On an unrelated note: I apologize for being so inactive on this blog for so long. I have had a disappointing contractual work experience that has drained me and continues to do so, frankly. I am trying the hardest I can to find interesting cases to blog about. Should you hear of any, I’d be delighted to be notified. I also invite guest bloggers to blog here with us. As always: thanks to my co-bloggers for their hard and excellent work!
The case described above is Eike, et al. v. Allergan, et al., No. 16-3334 (Seventh Cir. 2017).
Hat tip to my colleagues on the Contracts listserv for discussing this case.