Thursday, July 12, 2012
Forest Park Pictures alleges that it created what the industry calls a "series treatment" for a television show called “Housecall,” featuring a doctor who, after being expelled from the medical community for treating patients who could not pay, moved to Malibu, California, and became a “concierge” doctor to the rich and famous. Forest Park presenting this material to USA Network (“USA”) both in writing and in a face-to-face "pitch." Below is the opening scene of Robert Altman's "The Player" illustrating what a pitch is like:
Forest Park alleges an implied agreement by USA to pay reasonable compensation if its ideas were used. Although Forest Park and USA exchanged further communications, discussions ultimately fell off with no formal agreement to produce the show.
About four years later, USA produced and aired “Royal Pains,” a television show suspciously simlar to "Housecall." Forest Park then sued USA for breach of the implied agreement. The district court granted USA’s motion to dismiss on grounds that the Copyright Act preempted the claim and that the contract was too vague to be enforced. On appeal, the Second Circuit Court of Appeals vacated and remanded.
Section 301 of the Copyright Act expressly preempts a state law claim only if (1)” the work at issue comes within the subject matter of copyright and (2) the right asserted is equivalent to any of the exclusive rights within the general scope of copyright.” However, if the state law claim includes an element that supplants or supplements the elements of a copyright infringement claim, there is no preemption. In this case, the Second Circuit found that Forest Park's claim was not preempted because it alleged that USA had promised to pay Forest Park for the use of its ideas, an element that made its claim "qualitatively different from a suit to vindicate a right included inthe Copyright Act." In addition, a copyright grants the owner exclusive rights against the world, whereas a breach of contract claim provides no exclusive rights and asserts rights only against the contractual counterparty.
The Second Circuit then moved on to consider whether Forest Park had alleged a breach of an implied-in-fact contract. California has long recognized that an implied-in-fact contract may be created where the plaintiff submits an idea that the defendant subsequently uses without compensating the plaintiff. Although USA argued that even if the parties were part of an implied-in-fact agreement, the agreement could not be enforced because it lacked a definite price term. However, California courts allow the enforcement of contracts that lack exact price terms as long as the parties’ intentions can be ascertained. Taking into account the industry custom of pitching an idea for payment, the court remanded back to the District Court, giving Forest Park a chance to prove that such an industry standard price exists and that both parties agreed to it.
We learn from Wikipedia that "Royal Pains" was renewed for its fourth season last September.
[JT and Chirstina Phillips]
Friday, June 15, 2012
I previously blogged about the parol evidence rule and interpretation issues at the heart of a dispute between Dick Clark Productions ("DCP") and the Hollywood Foreign Press Association ("HFPA") over broadcast rights for the Golden Globes. I now have two updates.
First, the District Court has ruled in favor of DCP in a 89-page opinion posted here by the Hollywood Reporter. Pages 65-78 contain the arguments and holdings regarding the "plain meaning" of the modified contract and the use of extrinsic evidence (citing the commonly-used PG&E case). Pages 79-81 review HFPA's argument that there was no consideration for the modified contract. The opinion even contains a helpful discussion of mistake at pages 81-83.
The second update is that Dick Clark Productions reportedly is up for sale (less than two months after Dick Clark's passing). It would be interesting to see the DCP-HFPA contract provisions regarding assignment and change of control. Perhaps there will be a post-sale lawsuit as well.
Ultimately, I predict that this case appears in Contracts casebooks very soon. The combination of issues, the high profile nature of the dispute, and the short contractual provision itself, all make it a great candidate. As one lawyer said to the LA Times,"So much litigation over 12 words...."
Stay tuned (pun intended).
[Heidi R. Anderson]
Thursday, June 14, 2012
The Big Bang Theory, CBS's critical and commercial success, also is a Contracts professor's dream. This is due to the show's frequent references to "The Roommate Agreement" between the two main characters, Sheldon and Leonard. I previously blogged about using the show to illustrate anticipatory repudiation and contractual interpretation. I am now back with another clip, this time to illustrate duress and possible lack of consideration for an agreement modification. In this latest clip, Sheldon gets Leonard to agree to modify the roommate agreement by threatening to notify Leonard's girlfriend's parents about their relationship. The threat has meaning because the girlfriend, Priya, believes her parents in India would not approve of her relationship with the non-Indian Leonard. I'm not sure, however, if the threat is "wrongful" in the traditional duress scenario. The clip also features two key Star Trek references for all the Trekkies out there (someone should do a study, illustrated via Venn diagram, on the overlap between the "law professor" and "Trekkie" categories--I predict significant overlap). I hope to use the clip as a supplement the traditional duress cases of Loral and Totem Marine. Given that Sheldon appears not to give Leonard anything in exchange for the modification, it also could be used in the pre-existing legal duty rule context.
[Heidi R. Anderson]
Monday, June 11, 2012
In its Complaint filed against Dish Network (“Dish”), Fox Broadcasting Company (“Fox”) (along with ABC, NBC, and CBS, all separately) alleged Dish’s new AutoHop service, which allows customers to skip television ads, violates the license granted to Dish for video-on-demand service to consumers. According to Fox, the license to Dish was granted under certain conditions, apparently including provisions that prohibited any form of rebroadcast of Fox programming that would enable viewers to skip commercials.
In case the Court has been living in cave for the past seventy years or so, Fox points out that commercial advertising is vital to broadcast television. If it weren't for its advertisers, Fox would be unable to bring us the hit shows without which life would not be worth living.
Nonetheless, Dish has recently launched its own video-on-demand service called PrimeTime Anytime that is available to top-tier Dish subscribers who lease the Hopper set top box from Dish. PrimeTime Anytime makes available to subscribers the entire primetime broadcast schedule for all four major networks every night and commercial free. According to Fox’s Complaint, “unlike traditional DVR, the Primetime service was specifically and deliberately designed by Dish so that Dish can record, and/or encourage and facilitate unauthorized recording of hundreds of hours of copyrighted television programs and distribute those copies in a revised format so they can be viewed commercial-free.”
In addition to the DVR-like aspects of Dish's new service, Dish will also redistribute and stream Fox’s programming over the Internet. Fox claims that this too constitutes a violation of copyright law and Dish’s agreements with Fox. Fox points out that this aspect of Dish's new services also constitutes unlawful competition with iTunes and Amazon who must pay for the right to offer commercial-free versions of Fox’s programming.
Further information is available through this report on hollywoodreporter.com.
[Christina Phillips & JT]
Thursday, May 24, 2012
Thursday, April 12, 2012
Keith Olbermann (left) and Al Gore's (right) Current TV have filed suit against each other in Los Angeles Superior Court. Olbermann claims Current TV violated his contract and owes him up to $70 million in unpaid compensation. Olbermann’s complaint specifies that he was publically terminated without cause, and he is suing for breach of contract, sabotage and disparagement. Current TV’s cross-complaint seeks a declaratory judgment on the grounds that it acted within its contractual rights when it terminated Olbermann, as well as a determination that it no longer has to pay Olbermann, having already paid him handsomely while receiving a “pauper’s performance” in return. As reported by FoxNews.com, Current TV claims that Olbermann was too often an absentee anchor and simply did not live up to the terms of his contract, especially in terms of ratings. Yet, Olbermann alleges that the subpar broadcast facilities at Current TV made it difficult for him to produce good ratings.
As chronicled in the Santa Francisco Examiner, this is just the latest episode in the picaresque story of broadcaster Olbermann. He anchored for ESPN until his unauthorized 1997 appearance on the “Daily Show” during which he referred to Bristol, CN, ESPN’s headquarters, as a “godforsaken place.” In the words of ESPN spokesman, Mike Soltys, when Olbermann left he did not merely burn his bridges; he napalmed them. From there, Olbermann went to MSNBC, but by 1998, he was so sick of reporting on the Monica Lewinsky scandal (who can blame him?), he left MSNBC, and joined Fox Sports. He soon returned to MSNBC to host “Countdown with Keith Olbermann.” As we have previously reported here, MSNBC agreed to pay him $7.5 million a year through the 2012 presidential election. However, as we reported here, Olbermann called it quits in the middle of that contract—while on the air--for reasons that remain unclear.
Which brings us to the current lawsuit. In a statement reported by businessweek.com, Current TV spokeswoman, Laura Nelson characterized the lawsuit as follows: ‘when the law is on your side, you argue the law. When the facts are on your side, you argue the facts. When neither the law nor the facts are on your side, you pound the table. . . It is well established that over his professional career, Mr. Olbermann has specialized in pounding the table.” On April 3, in an appearance on CBS’s “Late Show,” Olbermann said, “I screwed up really big on this.” “It’s my fault it didn’t succeed in the sense that I didn’t think the whole thing through.” Current TV quoted these comments in the first paragraph of its cross-complaint.
[JT & Christina Phillips]
Monday, April 2, 2012
As reported in The New York Times, the discovery of a lost episode of Star Trek has sparked a, so far, non-litigious debate over CBS’s decision to enforce its right in the material and to prohibit the online airing of an amateur production based on the episode’s script.
Norman Spinrad wrote the episode, He Walked Among Us,” in 1967 after the show’s producers approached him with a four-day deadline and a box of no-doze. The producers thought the episode might provide an opportunity for comedian Milton Berle to work a dramatic role. Tragically, the episode never aired, and Spinrad’s script ended up getting donated to the archives at Cal State Fullerton, where it sat unnoticed for decades.
Years later, Spinrad was approached at a convention by a Trekkie (depicted in the image above) who asked Spinrad to sign a copy of “He Walked Among Us.” Spinrad later teamed up with James Cawley to discuss the possibility of finally producing “He Walked Among Us.” Cawley is senior executive producer for “Phase II,” a web-based production studio that uses unpaid amateur actors to act out Trekkies’ favorite episodes. In these productions, Cawley plays Captain Kirk, which is a bit like putting together a Shakespeare company so that you can play Hamlet. But still . . . .
CBS sent Cawley an email, asking him to cease production of the episode. CBS has been consistently buying merchandising, television and online rights to Star Trek. Cawley and Spinrad apparently have good relations with CBS and want to keep things that way. As Spinrad puts it on his website,
I and CBS have agreed to resolve our disputes concerning the ownership of the Work; as part of the settlement between the Parties, the Parties have agree that there will be no further comment; and CBS is considering opportunities to offer licensed copies of the Work.
Because of the above, I can no longer comment on the He Walked Among Us screenplay myself.
It is uncertain exactly why CBS has allowed Phase II to produce other unaired Trek projects but has decided to stonewall this project. Here are the leading theories:
- The subject matter of “He Walked Among Us” has been mined so thoroughly in other Star Trek episodes, CBS is concerned that further probing in this area could open up a rift in the time/space continuum;
- Due to a holodeck malfunction, the person calling himself Norman Spinrad is really Kirk’s arch-nemesis, Khan, returned to destroy the good name of the Star Trek franchise;
- After consulting with its resident half-Betazoid advisor, CBS concluded that there was something not quite right about the episode – some sort of deception may be involved, or not;
- William Shatner was insisting on playing the Milton Berle part and that the part include a fist-fight;
- CBS producers thought the episode's lower decks discussion of why Star Fleet could mandate health care coverage but not require that all replicators be programmed to synthesize broccoli when receiving requests for "junk food" was too dated; and
- A crucial element in the plot is the possibility of traveling at speeds in excess of light speed, and now that the faster-than-light neutrinos theory has been debunked, CBS thinks viewers will be unable to suspend disbelief
[JT and Justin Berggren]
Monday, March 26, 2012
I use releases to introduce the concept of consideration in part because most students have signed one somewhat recently. The casebook I use features Reed v. UND (see part IV of the opinion), previously blogged about here, in which a charity race participant waives his right to sue for negligence on behalf of the race organizers. A student tipped me off to the latest trend in such activity releases at the high school level--the waiver of the right to sue for loss of enjoyment in life. This story provides great examples of typical contractual language, parents' understandings of the language, and tort-based explanations for the language.
[H.R. Anderson, hat tip to student Terri Parker]
Saturday, March 10, 2012
Anyone 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]
Friday, February 17, 2012
In 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]
Tuesday, February 14, 2012
We 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.
Monday, February 13, 2012
At 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]
Monday, February 6, 2012
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]
Monday, January 23, 2012
At 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.
Friday, October 7, 2011
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.
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!
Tuesday, October 4, 2011
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:
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.
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]
Friday, September 23, 2011
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?
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.
Friday, August 26, 2011
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.
Tuesday, August 9, 2011
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]