Wednesday, June 22, 2011
Trust me when I tell you that it is very difficult to get friends, family, students and acquaintances engaged in a meaningful discussion of "mandatory arbitration." Trust me further that there is now a wonderful documentary that manages to make this and other civil justice topics interesting and engaging for everyone. (Indeed, my viewing companion, proudly not a lawyer, turned to me at one point in the movie and whispered "didn't you write a paper about something like that?")
Last night, I was fortunate enough to invite myself via twitter get invited to a screening of Hot Coffee at HBO. Hot Coffee is a must see documentary about the way that business interests, "tort reform," judicial elections and "mandatory arbitration" have systematically worked in concert to deny plaintiffs access to civil justice. It is the work of the energetic and passionate director Susan Saladoff who spent 25 years as a trial lawyer before becoming a filmmaker. The documentary is well-conceived and thought provoking. It takes some very complex topics and organizes them and presents them through compelling personal stories.
The title "Hot Coffee" refers to the iconic case that is ubiquitous in pop culture as a symbol of the frivolous lawsuit: the woman who sued McDonalds because she was served a coffee that was too hot. The film starts very strong by retelling this story through interviews with the plaintiff's family. This challenged me (and from the gasps in the theater, I suspect everyone else viewing the film) to see the case in an entirely different light. With that strong start, the viewer is engaged and ready to hear about damage caps, judicial elections and mandatory arbitration in consumer and employment contracts.
Here's the trailer:
After the film, there was a Q&A session moderated by Jeffrey Toobin. He appeared to receive the movie very favorably, noting that the fine print in a cell phone contract is not one of the sexy topics that CNN hires him to discuss on the evening news segments (which reminded me of this Dahlia Lithwick piece in Slate, which seemed to begrudgingly report on AT&T v Concepcion).
Toobin did mention one frustration, which could be leveled as a critique of the film -- that it only presents one point of view. Notably absent and/or unwilling to participate were voices from the "other side," i.e., those in favor of damage caps and mandatory arbitration. Saladoff's response, I thought, hit the nail on the head: in so many words, she said that she wanted to tell this side of the story, and the voices in favor of these reforms already had a well-financed platform (and, indeed, overtaken the public consciousness). Perhaps I am partial to her response because her film paints a picture in line with my world view, and I am just so thrilled to finally see an engaging and accessible presentation explaining the systematic erosion of civil justice at the behest of corporate interests.
Our students come to law school generally ignorant of or misinformed about tort reform, mandatory arbitration and many of the other topics presented in this film. However, they do at least know of handful of cases -- OJ, Bush v Gore and, of course, the hot coffee case. I have no doubt that this film will be used in the classroom. It is masterfully done and captivates those uninitiated with these topics as well as those who have studied them (and even includes a few clips of interviews with George Lakoff). Please tune in to HBO on Monday night.
[Meredith R. Miller]
Monday, May 9, 2011
South Park creators, Trey Parker and Matt Stone (pictured at left), have taken time out from their hit Broadway musical to lampoon two more mainstream religions: contracts doctrine and Apple.
Mashable provides a nice excerpt from the April 27, 2011 episode of South Park, which is a send-up of both Apple's recently disclosed consumer surveillance activities and the terms and conditions that may or may not be included when you agree to a weekly update of your version of iTunes. Most of the episode is in poor taste, even for South Park, but the over-the-top scatological humor may be justified as a means of demonstrating the absurdity of binding consumers on the basis of their having clicked "I agree."
Still, if Parker and Stone could have exercised a little unwonted self-control, they would have done us contracts profs a big favor, as we could have covered e-contracts and contracts of adhesion simply by hitting the play button on our DVD players.
Friday, April 22, 2011
On March 8, 2011, Patricia Caruso filed this complaint against former prosecutor and television personality Nancy Grace, alleging a $15 million breach of contract. The two met back in 2002, when both were working for CourtTV. They became colleagues and friends. Caruso claims that she advised Grace when Grace's contract with CNN was up for renewal. She claims that she persuaded Grace to insist on a "carve-out" to permit her to create a syndicated vehicle for her talents, while continuing her gig with CNN.
Caruso alleges that Grace breached a contract to develop a syndicated television series, which Grace would host and Caruso would produce. Caruso claims that she worked tirelessly to market, develop and sell the show, which she wanted to call Grace's Cases. Grace allegedly provided near-constant assurances that she would not proceed with any such show without "patty in place," Here is a video of their most recent interaction which illustrates the importance of having your patty in the right place:
According to the complaint, Swift Justice with Nancy Grace, which is a version of the show that Caruso helped develop, premiered in Fall 2010 without Caruso and has been a huge success. Although Grace was allegedly assuring Caruso that she would be one of the show's executive producers as late as January 2010, in February, CBS offered her a one-year position as “Executive, Talent and Audience Relations," with the possibility for a renewal and a salary of $100,000.
The complaint provides interesting details about the industry. For example:
Were she an executive producer of Swift Justice with Nancy Grace, Caruso would reasonably expect to be compensated consistent with industry standards, namely with a fee in the range of ten percent (10%) of the show budget per week and “back end” compensation in the
16 range of ten percent (10%) of the modified adjusted gross revenue (MAGR) for the life of a television series.
The complaint also provides a little glimpse into the lives of the rich and famous: restaurants are the site for many of the dramatic scenes recounted in the complaint.
Tuesday, April 5, 2011
Friday, March 18, 2011
Netflix's strategy is like that of the wise player in the board game Risk, who starts in Australia and patiently builds armies while the super powers fight amongst themselves. For those of you who think we have just exceeded the acceptable nerd quotient by: 1) blogging; 2) about contracts; and 3) mentioning a board game (at least it's not D&D), here is a clip to illustrate the effects of such a noiseless-patient-spider approach:
According to the New York Times, Netflix has gradually developed its assets so that it can compete with traditional TV networks like HBO and AMC and shift from “a DVD-by-mail service to an online library of films and TV programs.” Up until now, Netflix has focused on acquiring the rights to concurrent access to several network TV shows.
This all might change soon, however, as The Atlantic reports that Netflix is the lead bidder to purchase the exclusive rights to House of Cards, a new marquee television series created by Kevin Spacey and David Fincher. Not only would this deal signal the beginning of Netflix’s foray into original programming, but it is significant due to the potential terms of the contract as well. Netflix has offered $100 million upfront for two full seasons, each with 13 episodes. Such a bold commitment has never been done before for a TV drama, and if the bid is accepted, according to New York Magazine it could “upend the way television deals are made…” just like an angry Ukrainian can upend a Risk game.
Many analysts are calling the move a necessary step for Netflix to stay competitive with rivals coming from all sides. Nellie Adreeeva of Deadline.com points out that Netflix has been under great pressure as of late from various challengers in the streaming movie market, like HBO, Amazon.com, and even Facebook. Original content would differentiate Netflix from its rivals and branch out into a new customer base.
Some are skeptical, however. the Atlantic's Megan McArdle highlights some of the drawbacks and risks. While Netflix may have dominated the DVD rental market, pinpointing the next hit TV show requires an entirely different skill set, one that Netflix has not demonstrated thus far. Netflix could not expect that many people would subscribe to Netflix's service, if they haven’t already, in order to get access to a single program. Netflix thus likely will have to make significant investments in several original programs before it starts to see real returns from this kind of investment, which heightens the risk inherent in branching out.
Regardless, if Netflix wins the contract for the rights to House of Cards, it could herald a major shift in the way TV programming contracts are negotiated and transform Netflix into a major competitor for traditional TV networks.
[Jon Kohlscheen & JT]
Wednesday, March 16, 2011
Samuel V. Jones, The Moral Plausibility of Contract: Using the Covenant of Good Faith to Prevent Resident Physician Fatigue-Related Medical Errors, 48 U. Louisville L. Rev. 265 (2009)
Alison Stanger, One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy (Yale U. Press 2009)
We mention Alison Stanger's book not because it is especially new but because she was just on The Daily Show talking contracts! [hat tip to Steven Schooner and the Government Contracts at GW Law Facebook Page].
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
Friday, March 11, 2011
Well, he did say he would sue - back when Charlie wanted to revive the show from hiatus. But then Warner Bros went and changed the game when, as the entire world probably knows by now, Warner Bros fired Charlie Sheen. Charlie, not being the type to take such things lying down, has returned fire with a lawsuit against Warner Bros and Charles Lorre, the producer of Two and a Half Men.
Charlie - fire-breathing, fire-fisted Charlie - is cast by his lawsuit as the victim - and a defender of the weak. In short, the lawsuit alleges that Warner Bros. and executive producer Charles Lorre maliciously conspired to wind down Two and a Half Men (2½ M) before Charlie Sheen went on the rampage. Sheen's suit portrays Warner Bros. as an immoral, conspiratorial, hypocritical, profit hungry betrayer, and Lorre as a fabulously wealthy, egotistical, vindictive bully.
The lawsuit contends that Sheen's antics were not a problem previously - on the contrary, at a time when the star was at risk of being convicted for a felony punishable with imprisonment, Warner Bros is alleged to have been eager to sign Sheen for another two seasons.
So what changed? According to the lawsuit - in two words - Charles Lorre. Sheen alleges a pattern of harassment, humiliation, and aggravation against him by Lorre over a period of years (Lorre's 'vanity cards' are referred to in the suit as an example of this). The suit alleges that Warner Bros. is utterly loyal to Lorre because of the close, lucrative working relationship between Lorre and Warner Bros - Lorre is said to have an office on the Warner Bros lot, and to have three new series, (for which his cut is allegedly higher than what he gets for 2½ M) under development. Stung by Sheen's radio and TV blitz that was supposedly provoked by the said harassment, Lorre allegedly decided to no longer work with Sheen and from the point onward refused to provide new scripts in breach of his contractual obligations. The suit alleges this is why Sheen was turned away from the set of 2½ M although he had undergone private rehab (that allegedly involved the services of an expert recommended by Lorre) and was ready, willing, and able to get to work. Sheen further alleges that the line that he was fired for being incapable to fulfil his duties is a trumped up story. Sheen strongly contends that he is fit and well, sober (as indicated by recently publicized drug test results), and that he is and always has been ready, willing and able to work. Warner Brothers, in other words, is accused of scheming with Lorre to maliciously suspend the show, and then wrongfully terminate Sheen's contract for no just cause.
Warner Bros is portrayed as fraudulent, immoral and hypocritical for allegedly pretending to fire Sheen for reasons of moral turpitude when, the suit alleges, it eagerly courted Sheen for the renewal of his contract after he had been charged with a felony and was facing jail time. Warner Bros is alleged to have reassured Sheen that their contractual relationship would not be jeopardized so long as Sheen's conviction and sentence did not interfere with his recording schedule. Warner Bros is also portrayed as mercenary and merciless for firing Sheen instead of accommodating him, when he was alleged to be suffering from certain physical and mental illnesses (which ailments Sheen denies in any event). The portrayal of Sheen as the victim continues through mention of Lorre's "vanity cards" as a deliberate attempt to harass, humiliate and damage Sheen, through to mention of the incident in which Sheen was turned away from the Warner lot.
The lawsuit recites a litany of woes including breach of express terms, anticipatory breach, breach of good faith and fair dealing, breach of duty to a third party beneficiary, intentional interference with rights, interference with prospective economic advantage, frustration of common purposes, disappointment of reasonable expectations and loss of intangible opportunities (continuation as the lead in a star series, and the opportunity to attract endorsements). Employment discrimination makes an appearance, as well as claims for unpaid wages on behalf of himself and the cast and crew of 2½ M. The suit seeks compensatory, punitive and exemplary damages, as well as attorneys fees.
Warner Bros' termination letter, and Sheen's lawsuit present two alternative universes in which an innocent plaintiff is utterly wronged by a deliberate defendant. Given the impression created by Sheen's seemingly erratic behavior in recent times, Warner Bros is seen by some as having a strong case - if indeed it did terminate Sheen for incapacity and his blistering radio and TV rampage. Warner Bros seeks to portray those events as the last straw that led to a justifiable termination, following evidence of an uncured incapacity or serious medical condition, (a terminable event in Sheen's contract if lasting for ten or more consecutive days, or more than fifteen days in the aggregate over any single production year). Newspaper accounts seem to suggest that Sheen may have exceeded this allowance, but I wouldn't put my money on Warner Bros just yet.
Regardless of what has been decided in the court of public opinion, incapacity or a serious health (read mental) illness on the part of Sheen has not been proved yet. If Charlie did exceed the number of incapacitated or sick days permitted, there still may be room for a waiver argument. If Warner Bros truly sought Sheen out for renew his contract after he was charged with a felony, and further, reassured him that a conviction and jail time would not jeopardize their working relationship, Warner Bros may have waived the moral clause (subject to public policy concerns). Those actions if proved would also undermine the justifiability of terminating his contract on grounds of moral turpitude (was he allowed to stay in character off set?). Then there is the question of whether Sheen was terminated because Lorre felt it would be immoral to be a part of Sheen's alleged meltdown, rather than because of Lorre's allegedly egotistical, malicious wishes. Lorre allegedly has a history of personality clashes with stars he has worked with.
Of course, the whole issue of arbitration still has to be decided. Warner Bros insists that the contract requires the matter to be arbitrated. Team Sheen has made it clear ,by filing the lawsuit, that it does not share that opinion. Prepare for a rumble in the Tinseltown jungle. In the meantime, Charlie still has the (literary) Midas touch.....
Eniola O. Akindemowo.
Monday, February 28, 2011
Charlie Sheen’s antics, documented virtually everywhere, have kept the public agog for months. As the seriousness of his scrapes escalates, questions swirl about how this will all end. As parents caution a hyperactive child obviously heading for a fall that “it will all end in tears”, I am rooting for a happy ending, despite all indications. I am hoping, as I watch this awful drama unfold, that it will not culminate in a tragic end.
It was only a few weeks ago that Charlie Sheen reportedly announced that his contract for Two And A Half Men has no morality clause. It was alleged that he proudly asserted that he could do as he pleased, because he had not given the powers that be the contractual power to ‘dominate and totally interfere with my personal life’.
The unfolding drama raises contract questions galore. Is it true, for instance, that there is no moral clause in his contract? Really? It almost makes you want to incredulously ask who wrote the thing, until you realize that morality clauses are no longer de rigueur – at least not in entertainment contracts. He may even have such a clause in his contract - some accounts have him confirming the existence of such a clause but admitting that he hasn’t read it.
Clause or not, good luck Charlie; in the past a mere whiff of scandal could be the kiss of death for a career – yet this has not happened to Charlie - yet. A conceptual pair of reins over his scandalous behavior would do him some good, I think. A morality clause, and a carefully crafted artistic control clause, for example, could do some good. Regarding contractual control over his artistry however, this may depend on where performing ends and true life starts for Charlie. The two may have blurred into one. It almost seems like he was hired to play himself. (Does that make anything he does off set a spin-off? One might be forgiven for thinking so by his behavior).
It seems, in any case, that artistic authenticity is important to Charlie. Charlie wants to be true to self . The tragic thing about this is that he allegedly believes that authenticity precludes sobriety - at least for him. This brings to mind a pantheon of tormented stars that departed before their time. It makes you want to shake the guy saying “Snap out of it man – you’re not doomed. It doesn’t have to end this way".
Did he ever take the time to read the contract? We can safely presume that he signed it or that it was signed on his behalf, but he allegedly claims to not have read it. Perhaps he is no different from the large number of people who routinely sign before reading. Or perhaps he has not read it because he feels that is what he pays his legal team for. It’s hard, admittedly, to imagine Charlie Sheen taking the time to read a how-many-pages-long contractual document of carefully worded clauses at this point. Perhaps he once did – during that awful five years of sobriety a long time ago.
Maybe he enough patience for his legal team to give him only the nitty gritty of his contract i.e. what behavior will get him fired. He certainly seems confident that he has a long string to play with. Although he comes across as cocky, I suppose he has some reason for this – he is not known as ‘Teflon Charlie’ for nothing.
So here’s another question – what makes it so difficult for the reputational mud to stick to Teflon Charlie? Does he have a super slick contract assisting his PR agent? If so, what might be the ingredients for the slickest contractual Teflon – a tepid moral clause and wide discretion? The right to engage in ‘artistic expression’ so long as that bargain, and its expression, remain on the right side of public policy? Maybe being liked in the industry pragmatically translates to Teflon? Or is it just a good old double standard at work?
It’s hard to believe a party the size and sophistication of the CBS TV/Warner Joint Venture would leave itself contractually vulnerable to the antics of a Teflon profligate. CBS/Warner is surely working through its arsenal of options. That would include termination – firing Charlie – although the CBS/Warner has stopped short, for now, of doing so.
Another option, of course, would be to stand by Charlie - with gritted teeth. The show’s ratings have not been harmed by his troubles. It is likely, in fact, that his antics have helped the ratings. The show has performed so strongly, that if no more epsodes are made, the CBS/Warner will still profit handsomely from syndication which likely would go on for years. That’s good news and bad news for Charlie. It's good news if he gets a percentage cut of profits. Onthe other hand, the fact that he is no longer indispensible may be a bad omen for his continued antics as a CBS-Warner star.
CBS-Warner has undoubtedly weighed its choices every step of its turbulent journey with Charlie. So far the preference has been to put a good face on things. After his latest antic however - savaging the hand that fed him – it will be understandable if the CBs/Warner decides it’s time for the gloves to come off.
Before things turn really nasty, before the last straw breaks the camel’s back, might a point be reached when it becomes immoral – contractually speaking - to stand by and watch an actor, no matter how profitable, implode? It’s one thing to condone the omission of a morals clause – big boys are allowed to live out the bargains of their choice after all, but when does standing by and watching a train wreck become permissible? When does benefitting from the fast motion slide of a rakishly cute actor morphing into something less cute – though compelling viewing - become a breach of the duty of good faith and fair dealing? “All publicity is good publicity” the show biz adage goes – but might there be a point where standing by an out of control star begins to seem a cynical enablement of that actor’s race to self destruction?
He’s a big boy you may say – he knows when to say no – but does he, really? The ability to say no to poor choices is playing a starring role in this whole drama. His family is concerned and has asked the public to pray. Allegedly plagued by all manner of addiction issues, it is becoming harder after his latest rant to argue that Charlie’s ordinary judgment, let alone his contractual ability is intact. He may even think that HE is a contract. Concerned contemporaries and celebrity doctors are predicting that things will end badly if he does not get help now.
Let’s say hypothetically that the acceptance of an offer to make another season of a hugely popular show could be convincingly shown to be more likely harmful than beneficial to a random troubled star. Addicted not only to substances, but to public attention, the hypothetical star accepts the offer in a snap. Establishing that the hypothetical contract is voidable - because the hypothetical star, due to his substance induced intoxication was either unable to understand what he was getting into (unlikely) or act reasonably in relation to the bargain (more likely) , and hence a bad deal for him - could be a step toward establishing a lack of good faith on the part of the Network. Entering into a contract ,knowing the star has addiction issues, and then standing by while the star self-destructs amid skyrocketing ratings could arguably qualify if, for example, the contract obliges the Network not only to provide employment, but employment that is reasonably likely to enhance or benefit to the star's image. Though unlikely in an ordinary employment contract, this makes sense in an agreement for the employment of an actor - as an independent contractor - to whom image building is of primary importance. The act of facilitating the self destruction of a known addict would be deemed detrimental to that actor, one would hope. The chances of success will be stronger where the argument that the Network callously failed to intervene to wring out maximum profits is credible on the facts. The omission of a morality clause from the hypothetical star's contract could cut both ways. While freeing the star from the moral control of the network, it could also release the network from the already minimal responsibility the network might have for the hypothetical star's poor choices.
CBS/Warner Bros may be in the early process of disassociating itself from the imploding soap opera that has become Charlie’s life. The discreet cancellation of the rest of the season first, and then what? You can be sure of this – Charlie will not go quietly. He is not happy about the cancellation of the remainder of the season, and he wants the world to know it.
So, now what? Time to activate some Teflon abrasive – the moral clause (if there is indeed one in his contract) or a close equivalent? Perhaps another clause might have the bite of a moral clause? A moral clause is a glorified termination sub clause, in one sense, and as we all know, a termination clause is the emergency escape chute. If there is no moral clause, check the wording of the termination clause next. Actions such as consistently failing to be in a fit condition to work, bringing the network into disrepute (a.k.a making the boss look bad), or being charged with a serious felony, could easily fall within the terminations clause of an entertainment contract.
More details will definitely seep out in ensuing weeks. We will discover whether termination is on the cards for Charlie Sheen - and whether Charlie is really going to sue. Should CBS/Warner get to the point of pulling the plug – and it’s not a given that it will, it will certainly be interesting to see what finally is deemed grounds to terminate the contract rather than merely exercising the option to cancel a season.
Eniola O. Akindemowo.
Monday, February 21, 2011
I find that some students tend to struggle with the concept of implied terms, especially when it comes to the non-occurrence of an implied condition serving as an excuse for non-performance. When that happens, I offer some additional explanation and then point them to this clip from Seinfeld. In the contract between George Costanza and Newman, George C. promises to pay Newman in exchange for Newman's promise to deliver a calzone to George C.'s employer, George Steinbrenner, whose office is located along Newman's mail route. When George C. discovers Newman at home instead of out delivering mail and Italian delicacies, he accuses him of breach. Newman, however, has an excuse. And it's a particularly funny one given his profession. More importantly than the humor, however, is that this presentation of an implied condition leads to many of those "Oh, *now* I get it" moments that make teaching so worthwhile. Enjoy!
Tuesday, February 15, 2011
After we discuss ambiguity, contractual interpretation, interpretive maxims and other related topics, I have my first-year Contracts students draft a morals clause for a faux contract between a television network and a performer. The exercise is an attempt to put the issues "in context" and demonstrate how and why ambiguity actually arises. We also discuss the general benefits of brevity versus the costs of leaving something out of the contract. It seems that Warner Brothers may be facing the latter scenario in its contract with actor Charlie Sheen. The clause allegedly left out is a morals clause.
Most contracts between producers and performers routinely contain a "morals clause," the breach of which entitles the show's producer to fire the performer. Conduct swept within a morals clause can range from more serious offenses, such as criminal convictions, to any behavior that merely would make the producer or network look bad. For example, as we've previously reported, Tiger Woods's reported marital infidelities may have triggered the morals clauses in some of his endorsement contracts. Because Sheen's recent off-camera behavior has made him appear to be, ahem, less than 100% moral, some industry insiders have suggested that Sheen would be fired from the highly-successful CBS show, Two and a Half Men, produced by Warner Brothers. Not so fast, says Sheen. Sheen reportedly is telling friends and advisors not to fear because his contract, unlike most others, has no morals clause. Thus, in Sheen's world, he cannot be fired from the show without his firing being a breach of the contract by Warner Brothers.
So, if you are tired of hearing about Charlie Sheen's off-camera exploits on this blog or elsewhere, blame Warner Brothers' lawyers. If they had included a morals clause in his contract, I am confident that Sheen would not be doing these allegedly immoral things (this sentence brought to you by our sponsor, Sarcasm).
Wednesday, January 26, 2011
For anyone who teaches Lauvetz v. Alaska Sales and Service d/b/a National Car Rental (or any of the issues addressed therein, including enforceability of adhesion contracts, hidden/unknown terms that go beyond one's reasonable expectation, etc.), this short Seinfeld clip is useful (and of course, entertaining). It aligns with the facts of Lauvetz because Jerry, like the plaintiff in Lauvetz, ends up purchasing "the insurance" and/or collision damage waiver that rental car companies offer. In the clip, Jerry--like Lauvetz--likely assumes that the insurance/waiver covers far more than it actually covers. I suppose it also could be used to discuss implied promises or contractual formation, given that the car rental company does not treat Jerry's reservation as a promise or contract. As Jerry says to the rental company rep, "You know how to take the reservation; you just don't know how to hold the reservation."
Monday, January 24, 2011
Two years ago, we asked where Keith Olbermann would go if MSNBC did not offer him a juicy contract. As we put it back in 2008:
No offense to Keith; I enjoy a slightly unhinged political rant as much as anybody, but it's as if MSNBC believed that viewers became hooked on "Countdown" during the election season and will be unable to shake the addiction. I started watching the show occasionally during the last weeks of the campaign and I haven't thought about going back there since election day. $7.5 million a year! That's extraordinary! Where do they think Keith Olbermann will go if they don't pay him more than the $4 million a year they agreed to in February 2007? CNN? Fox News?
Well, it appears we will now get an answer. As CBS News reports here, Keith Olbermann announced on Friday that he was calling it quits. Quotemeister Robert Thompson of Syracuse University is quoted as stressing Olbermann's importance to MSNBC's brand, but how much of that brand is a product of Olbermann himself and how much was it the product of, well, branding? It seems we'll find out. In any case, Rachel Maddow seems to have taken over as the face of MSNBC some time ago.
Reports say that it is unclear why Olbermann left in the middle of a four-year, $30 million contract, but are the reasons really that unclear? CBS News raises the question of whether Olbermann's contract included a non-compete clause. If it did, we would expect that Olbermann negotiated that away before he left MSNBC.
In the meantime, happy trails and thanks for the memories.
Friday, December 17, 2010
Tuesday, November 9, 2010
Via Jake Linford at Prawfsblawg, one of the great (sort of law-related) Python sketches of all time:
Linford also has some good thoughts about how to use sound recordings of appellate arguments to enliven class discussion of cases.
Wednesday, September 1, 2010
One of my former contracts students brought this People's Court dispute to my attention because of its eerie (and coincidental) similarity to the fact pattern on my Spring 2010 exam. Though, I had the added issue of a supervening referendum that (re)banned same-sex marriage.
Short of it: Plaintiff put down a $1000 deposit on a wedding reception venue called the Flaming Hearth. She was only required to put down a $500 deposit. She decided the dance floor wasn't big enough ("cause it's all about dancing to me") and reneged on the contract, asking for the extra $500 back. The owner of the Flaming Hearth refused to return any portion of the deposit, stating that the dance floor was big enough and the plaintiff was in breach of contract.
Here's the dispute:
Here's the "Judge's" "ruling":
Do you agree with the result?
[Meredith R. Miller h/t Cynthia Motschmann]
Tuesday, April 20, 2010
Yep. We're imperialistic, so what are you gonna do about? Throw some fulminated mercury at us?!?
We've already pretty much taken over the realms of business associations, alternative dispute resolution, national security law, international law, and law and literature. Well, now we're taking over intellectual property. And why? Because other blawgers are dropping the ball, in this case by not reporting on the relevant intellectual property issues in AMC's Breaking Bad. If you don't have cable or have cable but think (incorrectly in this case) that you have better ways to use your time than watching television on a Sunday night, you can get a re-cap of most of the relevant issues from the first two seasons of the show here.
In Season 3, our hero, Walter White, is taking a sabbatical from his Heisenberg identity and has given up his career as a producer (cook) of crystal meth. His partner in the business, Jesse Pinkman, decides to continue the business on his own, cooking up a batch of crystal meth by using Walt's formula. He sells this product through Walt's distributor, Gus. Gus pays Jesse half of his producer's fee and gives the other half to Walt. Jesse is quite understandably furious and Walt is equally furious but less understandably so. As he explained to Gus on Sunday night, for Walt, it's really all about the chemistry, and he cannot stand to have his formula reproduced by someone like Jesse, who whatever other endearing qualities he may have, is not a master chef.
I don't want to give away too much more of the plot, in case some of our readers are waiting to watch the entire season through Netflix, which BTW is a method I highly recommend, since watching television series about addictive drugs is, ironically enough, highly addictive. It's hard to wait a week between episodes and to endure commercials.
In any case, the plot gives rise to certain intellectual property concerns in the context of a now-defunct -- or at least non-functioning partnership. In this case, the partnership never operated according to a written partnership agreement. Still, Walt and Jesse were operating according to a contract of sorts, and we might look to their conduct to establish who has the right to the intellectual property developed in their joint venture. Walt clearly has the stronger claim, since he was the inventor of the recipe, while Jesse was just in charge of distribution. However, Walt had made clear that he was not interested in continuing the business and the business, which was illegal and thus never properly formed, was also never officially dissolved or terminated.
Walt seems to think he has a right to exclusive use of the recipe, even if he elects not to use it. Jesse seems to think he has a non-exclusive right. Since their claims are unlikely to be adjudicated in any court, we had better hash things out here.
Monday, March 15, 2010
Season Two of AMC's Emmy-winning drama "Breaking Bad" raises some interesting questions about the division of partnership profits. The two main characters, Walt, played by Bryan Cranston -- pictured left-- and Jesse, played by Aaron Paul, who is fast becoming one of my favorite actors, frequently refer to themselves as "partners" and speak of their meth production and distribution operation as a "partnership." And sure enough, they are indeed two or more persons operating as co-owners a business for profit, so I think they've got that right. The two never seem to have formalized their agreement in a writing, which is not advisable, except that their business is illegal and therefore any agreement would likely be unenforceable in any case and any writing evidencing the nature of their business could land them in jail.
In any case, absent agreement to the contrary, the partners should divide their profits equally, and that is what Walt and Jesse do. Who says that there is no honor among thieves? Jesse is also a very prudent criminal, since he keeps a "rainy day fund." Unfortunately, he keeps the rainy day fund in his car, and when he is briefly arrested in Episode 4, "Down," his savings are seized by the DEA. Jesse gets out of jail, but in order to do so, he has to sever all ties to his "stacks" of "serious cheese," yo. In addition, his parents evict him from his home. In short, Jesse needs money, and he demands that Walt split half of the remaining profits with him. Walt initially refuses, saying that he is not responsible for Jesse's carelessness.
As a matter of law, I think Walt has it right. The partnership profits had been distributed and the money Jesse lost to the DEA was not partnership property. It was Jesse's money, and Walt is not obligated under the partnership agreement to divide his share with Jesse. As a matter of good business dealings, however, and also in order to keep the storyline headed in a reasonable direction, Walt gives in and splits his share with Jesse.
A second problem arises in Episode 6, "Peekaboo," when one of the partnership's informal employees is robbed at knifepoint by a meth addict. As a result, Walt's expected profits were reduced by $1000. Jesse was willing to accept this shortfall as a cost of doing business, but since distribution was Jesse's responsibility, Walt felt that Jesse should absorb the loss and also prevent future losses through an act of retaliation and/or intimidation. The parties did not end up taking their dispute to court however, as an ATM machine served both to make up the earlier loss and dispense with the troublesome meth addict. Need I say more?
Finally, in a drama that plays out over the last three episodes of the season,Jesse decides to reduce his role in the partnership to part-time druglord so that he can become a full-time heroin addict and squeeze to his neighbor and landlord's agent, Jane. As a result, he is in a drug-induced haze when Walt needs him to deliver $1.2 million worth of product. Walt ends up doing it all himself and as a result misses the birth of his daughter. His wife doesn't seem to mind, but boy, Walt had better answer her straight when she asks him about his cell phone! Once again, the parties seem to recognize that they are bound under the Uniform Partnership Act, since they are operating without an agreement, to split their profits 50/50. Walt could have argued that Jesse's conduct constituted a constructive termination, but he chose once again to be a good father-figure for the hapless Jesse, whose share in the profits is now being held in trust by the partnership's attorney.
That gets you up to speed on the vital contracts issues from Season Two. Season Three begins March 21st. The blog is of course not plugging the series as such. We just think it is a useful mechanism for working through some of the problems inherent in running a partnership without a written agreement.
Monday, October 26, 2009
As I told my students, this Limerick makes history. It is the first time that a famous line of iambic pentameter has been slipped into a Limerick. The case to which it relates is a fairly simple one. Mr. Pittman and Mrs. Gilligan engaged in discussions about putting up a wall behind her beach-front property to protect it against erosion. The parties' accounts of these discussions differ. Mr. Pittman emerged with the belief that he had marching orders,so he constructed a large V-shaped barrier behind Mrs. Gillegan's Wisconsin property while she was in Chicago. Mrs. Gilligan was distracted because her husband kept yelling "SKIPPER!" Well, perhaps not. But in any case, she did not regard their conversation as resulting in an agreement, and she considered the new retaining wall a monstrosity.
The trial court chided Mr. Pittman for his careless way of doing business and found no meeting of the minds, but it granted Mr. Pittman leave to amend his complaint and to seek recovery based on unjust enrichment. The Supreme Court of Wisconsin was even less sympathetic, finding that there could be no recovery because Mrs. Gilligan did not in fact benefit from having a hideous concrete wall erected on her property. Mr. Pittman was simply going to have to absorb his labor and material costs.
This simple case inspired the following unprecedented legal Limerick:
Dunnebacke v. Pittman
Mrs. Gilligan was not in thrall;
No agreement could she recall.
Pittman may lose his biz,
But something there is
That doesn't love a wall.
After I recited this historic Limerick and informed my students that the last line two lines repeated a line from Robert Frost, one of my students uttered an incredulous, "That's it?!?" It was the first time one of my Limericks has been heckled. I have half a mind to go heckle her while she is studying.
I'll come upon her in the library, and say, "You call that reading? Come on, turn the page already! Pink highlighter, eh? You sure you got the right passages?"
Yeah. We stand-up law professors ought to give as good as we get.
Wednesday, October 7, 2009
I am late to the hit AMC series Mad Men; just last week, I started watching the first season on DVD. I am enjoying the show, and tolerating the unrelenting misogyny as a representation of the period. That aside, the show definitely has an alluring and sexy aesthetic – partly attributable to the constant smoking and cocktail drinking in well-tailored suits.
I’d love to bring some of this allure into the contracts classroom –
without the sex, sexism, smoking and drinking. And, I just might be able to. I have it on reliable information that there is an
employment contract issue that arises as a sub-plot late in Season 2 and has carried
over to Season 3 of the show.
Apparently the story line involves Don Draper refusing to sign an
employment contract because it contains a non-compete clause. When I heard this, I went from liking
the show to loving it.
I’d love to bring some of this allure into the contracts classroom – without the sex, sexism, smoking and drinking. And, I just might be able to. I have it on reliable information that there is an employment contract issue that arises as a sub-plot late in Season 2 and has carried over to Season 3 of the show. Apparently the story line involves Don Draper refusing to sign an employment contract because it contains a non-compete clause. When I heard this, I went from liking the show to loving it.
But, this is as informative as my post can be – because I have not yet
reached these episodes of the show.
That is why I am asking those of you who read this blog and watch Mad
Men to explain in the comments the non-compete sub-plot and name the episodes in which it receives treatment. We will
address non-competes in my class in a few weeks, and I am thinking I just might
be able to bring sexy back to Contracts.
But, this is as informative as my post can be – because I have not yet reached these episodes of the show. That is why I am asking those of you who read this blog and watch Mad Men to explain in the comments the non-compete sub-plot and name the episodes in which it receives treatment. We will address non-competes in my class in a few weeks, and I am thinking I just might be able to bring sexy back to Contracts.
[Meredith R. Miller]
[Meredith R. Miller]