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Valparaiso Univ. Law School

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Saturday, March 10, 2012

How a Fictional Physicist Anticipatorily Repudiates

BigbangAnyone searching for an amusing example of anticipatory repudiation (or almost any other Contracts topic) need look no further than CBS sitcom, The Big Bang Theory.  The show prominently features a "roommate agreement" between the two main characters, Sheldon and Leonard, physicists who struggle a bit in the romance department.  I asked students to view this clip and then fill in the blanks in the following sentence:  ________________ does not have to _____________ because ______________ repudiated when he ________________. It was a bit too easy, of course, but it did seem to help them remember the concept. 

[Heidi R. Anderson]

March 10, 2012 in Teaching, Television | Permalink | TrackBack (0)

Friday, February 17, 2012

Will M.I.A.'s Next Hit Appear on an SSRN Top Ten List?

MIA_front_faceIn a little-noticed incident, since most people were watching Downton Abbey that night, a British rapper, M.I.A. (pictured left) performing during this year’s NFL Super Bowl halftime show, looked into the camera, uttered an expletive, and flipped the bird to millions of viewers around the world.  As a result, in addition to millions of people knowing of her existence, she may be in breach of contract with the NFL. 

As reported by Yahoo.com Sports, NFL spokesman, Greg Aiello, maintains that when the league hires the entertainment for the show, the artists are required to sign an agreement containing safeguards concerning artists’ conduct.  TMZ.com reports that the agreement between M.I.A. and the NFL contained a clause indemnifying the NFL against any fines that may be imposed by the Federal Communications Commission (FCC) as a result of her behavior during the halftime show.  TMZ also reported that the NFL agreed to indemnify NBC against any such fines, because the NFL is responsible for the halftime show’s content.  M.I.A. thus may be contractually obligated to pay any fines that the FCC chooses to impose on NBC and the NFL.   The news reports do not make clear what other remedies the NFL might have against M.I.A., since the indemnification clause would seem to cover any harms the NFL could suffer as a result of M.I.A.’s conduct.

The FCC sets out the relevant regulatory scheme as follows:

Obscene material is not protected by the First Amendment and cannot be broadcast at any time. To be obscene, the material must have all of the following three characteristics:

  • an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
  • the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
  • the material, taken as a whole, must lack serious literary, artistic, political, or scientific value.

Indecent material is protected by the First Amendment, so its broadcast cannot constitutionally be prohibited at all times.  However, the courts have upheld Congress' prohibition of the broadcast of indecent material during times of the day in which there is a reasonable risk that children may be in the audience, which the Commission has determined to be between the hours of 6 a.m. and 10 p.m.  Indecent programming is defined as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.”  Broadcasts that fall within this definition and are aired between 6 a.m. and 10 p.m. may be subject to enforcement action by the FCC. 

Profane material also is protected by the First Amendment, so its broadcast cannot be outlawed entirely. The Commission has defined such program matter to include language that is both “so grossly offensive to members of the public who actually hear it as to amount to a nuisance” and is sexual or excretory in nature or derived from such terms.   Such material may be the subject of possible Commission enforcement action if it is broadcast within the same time period applicable to indecent programming: between 6 a.m. and 10 p.m.

So, FCC fines may result if the FCC determines that M.I.A.'s conduct was either obscene, indecent or profane, as the halftime show aired before 10 PM.

[JT and Christina Phillips]

 

February 17, 2012 in Celebrity Contracts, In the News, Sports, Television | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 14, 2012

Non-Competes and Men of a Certain Age

Ray_RomanoWe have recently discovered a wonderful TNT-network series, Men of a Certain Age.  Unfortunately, the series was cancelled after its second season.  Ray Romano, pictured at left, a co-creator of the show played one of the three main characters.  His character, Joe, is a nice guy with a serious gambling problem, so here we show the actual Ray Romano gambling.  How's that for irony?!?

In a ContractsProf Blog exclusive, we have discovered what did the show in.  It was not the ratings, and it was not the demographic challenges of marketing a show that is not about 20-somethings.  Nor was it because of the fact that the show illustrates that middle-aged people do have sex, enjoy it, and can be pretty good at it.  Nope.  The show's demise was clearly a product of the improbable plot twists involving Andre Braugher's character Owen and his relationship to his father's car dealership.  

Owen works at his father's Chevy dealership.  He anticipates that he will one day succeed his father as owner and manager, but he never meets his father's expectations.  Towards the end of season 1, Owen's father decides to step down, but he appoints a hot-shot salesman to run the operations, and Owen retains his status as a regular salesman.  After putting up with the humiliation for a few weeks, Owen bolts to the rival Chevy dealership, where he prospers.  His father, duly chastened, offers Owen the dealership, and Owen returns.  

So, I don't know for certain that car salesmen have non-compete agreements as a standard element of their contracts, but they certainly ought to, as the show illustrates.  A car salesman is not like an attorney in terms of the law's regard for their relationship with their clientele, but the show does indicate that long-term relationships exist with repeat buyers.  Accordingly, it would not be a wise business practice for any car dealer to permit salesmen to bolt to a rival and to take their client-base with them.  But Men of a Certain Age makes no mention of a non-compete agreement.  

And that's what did them in.  

You read it here first.

[JT]

February 14, 2012 in Commentary, Television | Permalink | Comments (0) | TrackBack (0)

Monday, February 13, 2012

Will a Contracts Suit Kill a Reality Star's Career?

HousewifeAt right, we have an image of housewifery form the 19th Century.  Times have changed.  The Huffington Post reports that the Bravo network may soon replace Real Housewives of Beverly Hills personality Taylor Armstrong, who is being sued by MyMedicalRecords.com for $1.5 million in a breach of contract lawsuit.  The suit originally named both Taylor and her husband, Russell Armstrong, as defendants.  However, in August 2011 after suit was brought, Russell committed suicide, leaving Taylor to answer the lawsuit alone.

According to HuffPo, Russell was the largest shareholder of MyMedicalRecords.com, which at the time was a privately held company.  The company provides “secure Personal Health Records and electronic safe deposit storage solutions.”  The company discovered that Russell was misappropriating investor money and also diverting shares of the company.  The company removed Russell from the board, and he signed a $250,000 settlement agreement.  The settlement required that Russell identify parties to whom he had sold shares of MMRGlobal.  When he failed to do so, the $1.5 million dollar lawsuit followed.

Money is not the only thing at stake for Taylor.  Co-star Camille Grammer, ex-wife of Kelsey Grammer, told The Huffington Post that chances are good that Taylor will not be asked back for Season 3 of Real Housewives of Beverly Hills.  According to Grammer, Bravo executives “are going to start casting, looking for new housewives.”  HuffPo speculates that Bravo executives could be deposed in the lawsuit, as MMRGlobal’s attorneys seek information about Taylor’s income and how it might have been disposed of.  

[JT and Janelle Thompson]

 

February 13, 2012 in In the News, Recent Cases, Television | Permalink | TrackBack (0)

Monday, February 6, 2012

The Big Bang Theory's Fictional Physicists Take on Ambiguity and Interpretive Maxims

 

Some may find this clip from The Big Bang Theory useful in illustrating some contractual interpretation maxims, including "interpret against the drafter" and "read the contract in a way that gives meaning to the whole."  It also addresses the general concept of ambiguity.  In the clip, Sheldon accuses his roommate and fellow physicist, Leonard, of violating two terms of their "roommate agreement."  The first involves Leonard's denial of access to the bathroom in the event of an "emergency" experienced by Sheldon.  Leonard's girlfriend, Priya, rather convincingly argues that the term "emergency" is ambiguous and that it should be interpreted against Sheldon, the agreement's drafter.  The second allegedly violated term involves unauthorized use of the shower by more than one person.  Priya navigates around this term by arguing that another term of the agreement regarding hot water conservation trumps the "one person per shower" provision, perhaps illustrating the maxim of "specific beats general." (Note: The clip appears authorized by CBS, WB, et. al, as far as I can tell, but I make no warranties on that or, well, anything else I write). 

[H.R. Anderson, h/t to student, Ellie Holub]

February 6, 2012 in Teaching, Television | Permalink | TrackBack (0)

Monday, January 23, 2012

Contracts Issues in Big Love, Season 5

Big-love-cast14At the end of Season 4 of Big Love, protagonist Bill Henrickson wins election to the state senate and decides that this is the time to reveal his plural marriage (depicted at right).  What could possibly go wrong?  Tune in next season to find out.

And so we have, now that Season 5 is out on Netflix, and part of what goes wrong relates to contracts.  First, Bill's third wife, Margene, gets fired from her job, hawking jewelry on a shopping network.  When she inquires about her severance, she is told that she is not entitled to any, because she has breached her morals clause by lying about her marital status.  It's a pathetic scene, both because Margene's sense of her own self-worth has come to derive from her success through this television gig, and also because Margene seems unaware that one can challenge the applicability of a morals clause.  Could there really be that much case law out there on the applicability of morals clauses to undisclosed plural marriages?  As usual, Bill who always has a lawyer at the ready when he gets himself into a pickle, is nowhere to be found when his decisions ruin other people's lives.

Episode 1 of Season 5 also mentions that the Native American tribe with which the Henricksons had built a casino has now severed all ties with the family.  That's the kind of contractual breach that gets Bill's attention, but we'll see how much of the last season is dedicated to sorting out that sort of stuff.  

[JT]

January 23, 2012 in Commentary, Television | Permalink | Comments (0) | TrackBack (0)

Friday, October 7, 2011

Would It Really Be So Terrible If Contract Disputes Brought an End to "The Simpsons?"

Don't get me wrong.  I'm a big fan of The Simpsons.  I own the first seven seasons on DVD.  Okay, I'm a big fan of the first five seasons of The Simpsons, and the sixth and seventh seasons have their moments.  But at some point in the mid-90s, we turned to one another and acknowledged the truths that we dared not admit -- even to ourselves -- for many years.  Our favorite show no longer amused us.  The gags were all familiar, the meta-fictional, self-referential games had all been played.  It was time to move on with our lives.  So long, Matt Groening, hello, Jerry Seinfeld.  And so, we survived the 90s. 

Over the years I've had my share of fruitful debates.

JT: The Simpsons just isn't funny anymore.
Person who discovered The Simpsons in 2000: Yes they are!
JT: No, really, if you watch the first five seasons and compare them to what's on now, you will notice a huge difference
PWDTSi2000: I still think they're funny.

Simpsons_writers2 
[There are the writers of The Simpsons from the era when the show was reliably funny]

Bowled over by this reasoning, or having nothing else to do, I re-mounted the couch and turned on Fox at the appointed hour.  A few good gags and hope springs eternal, but after five minutes, it's just a bunch of recycled schtick and the sort of incoherence and forced plot lines that clearly indicate a sit-com that has irretrievably jumped the shark.

So, now there is news that the voices behind The Simpsons (heroes all!) are being asked to accept a mere $4 million/year instead of the $8 million/year they were making under their previous contract.  In fact, HuffPo reports that even if the actors agree to the pay cut, next season will the show's last.  If the actors don't agree to a pay cut, this season will be the finale.  I hope the actors insist on an early exit.  After all, if actors are willing to lend their voices to animated television programs for a mere $4 million/year, where will it end?  Will Bruce Willis and Harrison Ford have to accept a mere $10 million per film?  Will television news anchors have to take pay cuts too.  It's stuff like this that drove the irreplacable Glenn Beck from the airwaves!

[JT]

October 7, 2011 in Celebrity Contracts, Commentary, In the News, Television | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 4, 2011

Did Real Housewife's Tweet Breach her Contract?

Frankly, I've never seen this housewives show.  And I don't say that to be a snob of any sort, there is plenty of bad television that I do watch.  So, I don't really have any knowledge about the characters involved in this story from the Daily News, but I suspect it may be of interest in the classroom: 

Jacqueline Laurita may have tweeted herself right off "The Real Housewives of New Jersey."

Contrary to reports that the brunette babe has quit the Bravo reality series, a network insider tells us Laurita may be departing because she violated the confidentiality agreement in her contract.

The Jersey Girl, an "RHONJ" cast member since the show began in 2009, caused a media ruckus over the weekend by trashing fellow housewife Teresa Giudice via Twitter.

Laurita blamed Giudice for what she called the "setup" of another cast member, Melissa Gorga.

In her tweets, Laurita claimed Giudice put Gorga in an embarrassing situation by arranging for a former employee of Lookers Gentlemen's Club in Elizabeth, N.J., to "confront" Gorga at a Porsche Fashion show that was being shot for a future fourth-season episode of the series. The show just finished filming its third season, and Bravo will run a "reunion" episode Oct. 16.

Media reports suggest the encounter had something to do with rumors Gorga worked there as a stripper, although her former boss at the club recently told Us Weekly she worked as a bartender.

The source says Laurita's tweets backfired because she's contractually prohibited from divulging future story lines for the series.

"She revealed a significant amount of a plot line" for an episode that "has not yet been aired," says the insider.

That's not the only issue. Our source also says Laurita broke one of Bravo executive Andy Cohen's cardinal rules by refusing to attend a taping session for next week's season-three reunion show.

The source adds that Bravo is "not happy" with Laurita's behavior, "even if she was upset.

"There are rules. She knows that," says the insider."

After initially declining to comment, a Bravo spokeswoman issued a carefully worded statement to us: "Bravo is not firing anyone from 'The Real Housewives of New Jersey.' All five cast members will be featured on season four," read the statement. "No decisions have been made about season five at this time."

Laurita did not respond to us by deadline, but her castmate and sister-in-law, Caroline Manzo, downplayed Laurita's threats to quit. She told the Wet Paint website, "Maybe [Jackie's] in a funk now," but "in two hours, she'll be like, 'Hey, when are we filming next week?'"

If you want to participate in the comments section to this intrepid news story, here's a link to the Daily News.

[Meredith R. Miller]

 

October 4, 2011 in In the News, Television | Permalink | Comments (0) | TrackBack (0)

Friday, September 23, 2011

"Real Housewife" Might Owe Real Damages Thanks to Part Performance

Bethenny-frankel-skinnygirl-margarita-475x316 In my Contracts class, we recently discussed how part performance can make an offer irrevocable using cases such as the iconic Carlill v. Carbolic Smoke Ball and the less-iconic but perhaps more instructive, Marchiondo v. Scheck, 432 P.2d 405.  In the latter case, a seller of real estate fires his real estate agent after the agent has done the work to set up a sale but before the sales contract with the buyer actually was signed.  The real estate owner/seller claimed that no commission was due because he was bargaining for performance--a sale--and nothing short of that would do.  Not surprisingly, the agent claimed that his part performance (which likely included showing the property, finding the ultimate buyer, and more) made the seller's offer to pay a commission irrevocable--and therefore entitled him to a commission upon the later finalizing the sale.  

One of my reality TV-watching students noticed a parallel between the Marchiondo case and a somewhat recent dispute involving Bethenny Frankel, the star of the series "Real Housewives of New York City" and its later spin-offs.  In this contractual dispute, Ms. Frankel's agent, Raw Talent (like the agent in Marchiondo), was suing Frankel (like the property owner in Marchiondo) for its commission in a deal that it felt that it brokered between Frankel and a liquor industry veteran, Kanbar.  Frankel and Kanbar's deal was one to develop, market and later sell a company called Skinny Girl Cocktails (whose first product would be SkinnyGirl Margaritas), using Frankel as the company's celebrity endorser.  After the deal between Frankel and Kanbar allegedly was arranged by Raw Talent, but before it was officially finalized via a round of salt-rimmed glasses and contracts, Frankel fired Raw Talent.  In the next two years, Skinny Girl Cocktails drank its competition under the table and ultimately was sold by Frankel and Kanbar for $120 million.  Raw Talent now wants its commission--10% of the $120 million.  I asked my students...under Marchiondo, should Raw Talent get the money?

[Heidi R. Anderson, hat tip to student Brianna Conway]

P.S. And, because no lawsuit is complete without a follow-up, the makers of SkinnyGirl Margaritas now are being sued for false advertising for claiming that the ingredients are "pure" when each bottle allegedly contains a not-so-pure preservative.

 

September 23, 2011 in Celebrity Contracts, Television | Permalink | Comments (0) | TrackBack (0)

Friday, August 26, 2011

So You Think You Can...Contract?

SYTYCD Many of us who start our Contracts classes with contractual formation likely are, or soon will be, discussing offers, acceptance, and the Objective Theory in class.  This recent clip from the popular reality television show, So You Think You Can Dance, may be a fun way to spice up those discussions.  I plan to use it to illustrate the difference between an offer and a mere invitation to offer but I could see using it for other concepts, too, such as the importance of context when judging whether a reasonable person would view the discussion as an offer. 

The relevant portion should begin automatically after a commercial or two.  If not, jump directly to the 26-minute mark.  The exchange is between a contestant on the show, the host of the show, and one of the judges.  The primary potential offer is one to perform in the judge's upcoming re-make of Dirty Dancing

[HR Anderson, with H/T to student Elisabeth Whitmire]

August 26, 2011 in Current Affairs, Television | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 9, 2011

Daily Show Presents the One Happy Story from the Mortgage Crisis

Wednesday, June 22, 2011

Must See TV: Hot Coffee Premieres on HBO on Monday 6/27

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]

June 22, 2011 in Current Affairs, Famous Cases, Film, Film Clips, Law Schools, Miscellaneous, Teaching, Television | Permalink | Comments (0) | TrackBack (0)

Monday, May 9, 2011

South Park Explores Click-Through Contracts of Adhesion

Trey_Parker_Matt_Stone_2007 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.

[JT]

May 9, 2011 in Television | Permalink | Comments (0) | TrackBack (0)

Friday, April 22, 2011

Nancy Grace Sued for Breach of Contract

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 serieswhich 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. 

[JT]

April 22, 2011 in Celebrity Contracts, In the News, Television | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 5, 2011

Will the Real Linda Green Please Stand Up?

Important viewing:

Here is the link to the clip on the CBS site.

[Meredith R. Miller]

April 5, 2011 in Current Affairs, In the News, Television | Permalink | Comments (0) | TrackBack (0)

Friday, March 18, 2011

The Future of Television Is Netflix

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.

Netflixenvelope 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]

March 18, 2011 in In the News, Television | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 16, 2011

New in Print

Pileofbooks Stephen F. Befort, Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause, 59 Buff. L. Rev. 1 (2011)

William P. Johnson, Understanding Exclusion of the CISG: A New Paradigm of Determining Party Intent,59 Buff. L. Rev. 213 (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
Allison Stanger
www.thedailyshow.com
Daily Show Full Episodes Political Humor & Satire Blog The Daily Show on Facebook

 [JT]

March 16, 2011 in Government Contracting, Recent Scholarship, Television | Permalink | Comments (0) | TrackBack (0)

Friday, March 11, 2011

Return Fire! Charlie Sheen Sues Warner Bros.

Sheen Lawsuit 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.

March 11, 2011 in Celebrity Contracts, Commentary, Current Affairs, Television | Permalink | Comments (0) | TrackBack (0)

Monday, February 28, 2011

The Sheen Has Worn Off.

648px-CharlieSheenMarch2009

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.

February 28, 2011 in About this Blog, Celebrity Contracts, Commentary, Current Affairs, Television | Permalink | TrackBack (0)

Monday, February 21, 2011

Teaching Contracts via Seinfeld...Again

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!

[HRA]   

February 21, 2011 in Teaching, Television | Permalink | Comments (0) | TrackBack (0)