ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, May 26, 2017

Ancestry.com Doesn't Want Your DNA Forever (At Least, Not Anymore)

Earlier this week, Stacey Lantagne wrote a post about Ancestry.com’s Terms and Conditions. Among other things, it gives Ancestry.com a perpetual license to use its customers' DNA for…well, pretty much anything.  Attorney Joel Winston wrote about the terms here and his post quickly went viral. The social media backlash was fast and furious – and Ancestry.com now claims that it didn’t really mean what it said in its terms. They also say that they will take out that provision (although as of this writing, it is still there). It seems that nobody reads wrap contracts – even the companies that draft them.

This is another example of how consumers often do care what’s in the TOS, even if they don’t read them. Not reading (and so not knowing what’s in the terms) is not the same as not caring that the terms apply. It’s also another encouraging example of a company responding to market demand for different contract terms. Shades of General Mills….

May 26, 2017 in Current Affairs, Miscellaneous, True Contracts, Web/Tech | Permalink | Comments (0)

Thursday, May 25, 2017

In Arizona, a Breach of Good Will Does Not Require Spite

A recent case out of Arizona, Russo and Steele, LLC v. Tri-Rentals, Inc., No. 1 CA-CV 16-0042, deals with breach of the covenant of good faith and fair dealing, which is read into every Arizona contract. In the case at issue, though, Tri-Rentals's behavior was not "self-dealing," and Tri-Rentals argued that self-dealing, or spite, or ill will was required to breach the covenant. Not so in Arizona, though. Arizona does not require self-dealing conduct. Rather, the covenant is breached if you prevent the other party from receiving the benefit of the bargain, whether or not you do so out of spite or some advantage to yourself. 

(The case itself is an interesting one, stemming out of collapsed tents at a car show that resulted in damage to several classic vehicles.)

May 25, 2017 in Current Affairs, In the News, Recent Cases, True Contracts | Permalink | Comments (0)

Wednesday, May 24, 2017

He Who Breaches First, Etc.

Here is just a quick straightforward case out of the Eastern District of Michigan, Pittman v. Pacifica Loan Pool, LLC, Case No. 15-13877 (behind paywall), about the effect of a breach of contract on the other party to the contract. In the case, Pittman alleged that Pacifica breached the agreement by failing to pay the required property taxes. However, Pacifica countered that Pittman breached the agreement first by failing to make his required monthly payments. The court noted that the party who commits the first substantial breach of contract cannot sue the other party for failing to perform. Pittman's failure to make his required payments was a substantial breach on his part, and predated Pacifica's behavior. Therefore, he could not maintain this cause of action.  

May 24, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Tuesday, May 23, 2017

If You Hire a Home Inspector, Listen to the Inspector, Not the Sellers

A recent case out of Texas, Naquin v. Cellio, No. 14-04054-431, deals with "as-is" clauses and fraudulent inducement in the context of a real estate transaction. 

Naquin bought a home in 2012. The home purchase contract stated that she was buying the home "in its present condition." Naquin hired an inspector to look the home over, received a report, and decided to buy the house. Naquin then claims to have discovered, inter alia, plumbing issues caused by a toilet that had been added to a pool house on the grounds, and claims that she had been fraudulently induced to buy the house by the Cellios' misrepresentations. 

The court upheld the enforceability of the "as-is" clause. There was no disparity of bargaining power between the parties, and both parties were represented by real estate agents in the transaction. The parties specifically negotiated over the "as-is" clause and agreed to give Naquin the right to complete an inspection of the property before closing the transaction (which Naquin did). 

However, the "as-is" clause would not be enforceable of the Cellios made a fraudulent misrepresentation. It was true that the Cellios executed statements saying they were unaware of any issues with the plumbing and that they had not done anything to the home without the necessary permitting (although it also appeared to be true that the Cellios thought this statement was true when they made it). But, at any rate, it was also true that Naquin knew that there were plumbing issues and structural defects because those had come up in the inspection. The inspection report, the court held, should have trumped the Cellios' representations, and Naquin should have relied on that. In fact, when Naquin hired the inspector, it was an indication that she was not relying on the Cellios' word. Therefore, she couldn't prove that she had been fraudulently induced. 

May 23, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Monday, May 22, 2017

Terms and Conditions on Your DNA: How Complicated Can It Get?

This is a long one, that I didn't expect to be long, but I decided the point is how long this is, and the questions it raises about all of those terms and conditions on websites. 

A friend of mine asked me recently about the terms and conditions of the Ancestry.com DNA service. The service, if you're not familiar with it, takes your DNA and breaks it down into ethnic backgrounds for you, based on analysis of genetic markers. Here's a video that talks about it some: 

So if you're using the DNA service, you're handing your DNA over to Ancestry.com, and maybe we should think: what does that mean? After all, who does our DNA belong to, and what can it be used to? The Supreme Court looked at this in the context of patents a few years ago, finding that DNA cannot be patented. So we know that no one can own a patent on your DNA. But that's not really what's at issue in the DNA service site. No one is trying to patent the DNA, but Ancestry.com is still using the DNA in certain ways.

Looking into the terms and conditions initially seemed to me like it would be straightforward. Several hours later...

I started with the actual terms and conditions (makes sense, right?). It has a license provision:  

"By submitting DNA to AncestryDNA, you grant AncestryDNA and the Ancestry Group Companies a perpetual, royalty-free, world-wide, transferable license to use your DNA, and any DNA you submit for any person from whom you obtained legal authorization as described in this Agreement, and to use, host, sublicense and distribute the resulting analysis to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered."

That "we deem appropriate" language seems very broad to me. Appropriate for what? There isn't a lot of limitation there, and a lot of trust seems to be placed that your definition of "appropriate" will be the same as Ancestry's (and how likely is that, really?). I looked at some social media terms to compare (Facebook, TumblrTwitter), and none of their license grants had "we deem appropriate" language (and, in fact, Tumblr's license in particular was fairly narrow in its grant). Keep in mind, Ancestry has your DNA, not a random tweet about making a cup of tea in the morning. Also a point to think about: the social media is free, and I think we kind of expect that there's a trade-off for that. Ancestry costs money AND also takes a broad license grant in exchange. 

The terms and conditions also go on:

"You hereby release AncestryDNA from any and all claims, liens, demands, actions or suits in connection with the DNA sample, the test or results thereof, including, without limitation, errors, omissions, claims for defamation, invasion of privacy, right of publicity, emotional distress or economic loss. This license continues even if you stop using the Website or the Service."

So they can do whatever they deem appropriate, and you release them from any lawsuits in connection with it. 

Now, adding a complicating layer to all of this, though, is that the terms and conditions are supposed to be read in conjunction with the privacy statement, on a completely different webpage, that does appear to limit what they're doing with the DNA, I think, and also appears to give you the opportunity to cancel the service, although how that affects the license, which says that it survives termination of the service, is unclear to me. And in addition to that, there is another completely different webpage, called the Consent Agreement. I don't know when this comes up in the DNA process, because I didn't want to input my credit card, and before that point I only saw the terms and conditions and privacy statement referenced. But the Consent Agreement has to do with participation in scientific research, which seems cool, except that when you read further down into it, it says stuff like this: 

"If Data are obtained through these methods, it is possible that information about you or a genetic relative could be revealed, such as that you or a relative are carriers of a particular disease. That information could be used by insurers to deny you insurance coverage, by law enforcement agencies to identify you or your relatives, and in some places, the data could be used by employers to deny employment.

In the United States, a federal law called the Genetic Information Non-Discrimination Act (GINA) generally makes it illegal for health insurance companies, group health plans, and most employers to seek your genetic information without your consent, and to discriminate against you based on your genetic information. GINA does not protect you from discrimination with regard to life insurance, disability insurance, long-term care insurance, or military service. There may be state laws and laws outside the United States that prohibit discrimination against you based on genetic data."

Tl;dr: What I just want to say is that's the point. I spent all morning trying to piece together all the different clauses of all these different documents, and I'm still confused, and I'm an actual lawyer (theoretically). And then I wrote a blog entry about it that was also too long! How confused do you think consumers are? And how many of them do you think actually spent the amount of time I did to try to get through all of that? 

May 22, 2017 in Commentary, True Contracts, Web/Tech | Permalink | Comments (0)

Sunday, May 21, 2017

Show Cars, Wavering Owners, and Oral Contracts

We all know the importance of “getting it in writing.” At the same time, we also all know how hard it can be to actually implement that, especially when it comes to a party you trust. An appellate case out of California shows how even simple emails could probably have saved the parties a lot of agony, especially in a non-commercial context where tempers may flare.

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In 2010, Richard Grace bought a classic 1967 VW bus from Drew Colome, who also specialized in restoring older vehicles to show standards. Indeed, Grace stated to Colome that he wanted the bus to be restored to become an “excellent to outstanding” bus that he could show or, no less, “the best bus in the world” (yes, alarm bells should be going off by now by anyone dealing with such a purchaser). Grace also sent an email to Colome asking for the “BEST original and correct bus in the world,” stating that he would like to enter the bus in “two or three of the BEST [car] shows.” Colome understood that to mean a car show in Irvine, California, where show cars are allowed to feature non-original car parts. Discussions had also included the Pebble Beach car show in which only original car parts can be used. Restoring a car to Pebble Beach standards can take three years or more. Colome testified that since Grace already knew a great deal about classic cars and car shows, he (Grace) would also understand the timelines involved in the restoration project.

A year and half into the project, Grace again stated in an email to Colome that Grace wanted “THE BEST” and did not want to rush the job. At that point in time, Grace apparently thought that the final restoration would take no more than two further months. Colome testified that it would take at least seven months longer. Half a year later, Grace told Colome that he wanted “to terminate the project” and would take the bus “regardless of where we [are] or what condition the bus was in.” At some point in time, Grace also mentioned the fact that he had hoped to have the restored bus in time for his birthday.

Images

Colome then delivered the bus to Grace in a winery parking lot (yes, really), believing that Grace would not try to drive the bus and later testifying that the bus was in fact “ not safe to drive.” Grace did, however, drive the bus, but found it difficult to steer and the bakes to not function properly. Grace subsequently paid another mechanic $12,500 to put the bus in working condition and sold it for $98,000.

Grace then filed suit against Colome for breach of oral contract. Grace alleged that Colome breached the parties' contract by "[f]ailing to restore [Grace's] 1967 21-Window VW Bus to show condition." After a bench trial, the court entered judgment in favor of Colome on all issues. Among other things, the court found that Grace failed to establish that he contracted with Colome in June 2010 for the restoration of the bus to the standards of Pebble Beach, that Colome did not breach the agreement because Grace prevented his performance when he retrieved the bus in August 2012, that Grace did not reasonably communicate his intention to drive the bus upon retrieval, and that Grace failed to establish that Colome's failure to complete the restoration of the bus was a breach of reasonable expectations under the contract because no time for completion was specified in the contract and a reasonable time would have been approximately three years.

With this case, you have to ask yourself why Colome did not, especially with a buyer like this, make sure to at least send an email stating the details of the deal as he understood them. A simple “reply” with some details and questions as to the expectations of the buyer would have worked wonders, it seems. Of course, Colome won the case anyway, but is it really reasonable, as here, to expect that a private buyer has all the knowledge about timelines, etc., involved in a specialty project such as this when you consider the fact that Colome was the expert who had restored between 90 and 120 VW buses? Why in the world would the parties not have gotten this in some sort of writing? Why would Colome, with a seemingly hot-tempered buyer like this, not have communicated more details in a deal such as this in at least an email? This seems unusual, especially given the fact that car mechanics always seem to issue “estimates” or “contracts” when I take my cars in for repair.

It seems that there were several miscommunications of intent and misunderstandings in this case. Of course, the case is more unique than a regular car repair job because of the special purposes of the car. On balance, the outcome of the case does seem fair both legally and factually. But it does, I think, raise some questions about the reasonable expectations of parties and why the parol evidence rule was not raised given the long time horizon of this job (three years). At a minimum, it again shows the importance of “getting it in writing,” even if that “just” takes the form of emailed communications.

May 21, 2017 in Miscellaneous, True Contracts | Permalink

Wednesday, May 10, 2017

Doing Your Job Well to Benefit Your Employer Doesn't Result in Unjust Enrichment

In a recent case out of the Western District of Pennsylvania, Argue v. Triton Digital, Inc., Civil Action No. 16-133 (behind paywall), Argue, an engineer, brought suit alleging that his employer had been unjustly enriched by Argue's efforts. It's an interesting allegation. The court pointed out that what Argue was characterizing as "unjust enrichment" was really just him performing his job. He received a salary in exchange for his work, which included inventions, and his employer took that work and those inventions and used them to increase the value of its business. That wasn't unjust enrichment; the employer was entitled to do exactly what it did.  

Complicating this further? Argue had an employment agreement. The court pointed out that unjust enrichment is a doctrine that's supposed to be used only when no contract exists between the parties. Here there was a written agreement that provided Argue's employer with the right to Argue's inventions on the job. He could not, therefore, argue unjust enrichment at all. 

May 10, 2017 in Current Affairs, In the News, Labor Contracts, Recent Cases, True Contracts | Permalink | Comments (0)

Monday, May 8, 2017

Enforcing a Non-Solicitation Agreement Regarding Personal Client Relationships

In a recent case out of the District of New Jersey, Saturn Wireless Consulting, LLC v. Aversa, Civ. No. 17-1637 (KM/JBC) (behind paywall), the court took a (light) "blue pencil" to a non-solicitation covenant in the parties' contract. 

Saturn hired Aversa and they entered into a non-solicitation clause that prohibited Aversa from contact with any entity connected with Saturn, for the purpose of diverting work from Saturn, for a period of one year following Aversa ceasing to work for Saturn. Aversa resigned from Saturn and set up his own business that was partly in competition with Saturn. Saturn sought a preliminary injunction prohibiting Aversa from these activities based on the non-solicitation clause of the employment contract. 

The court carefully interpreted the non-solicitation clause, noting that Aversa was restrained from doing some business with Saturn's customers but not restrained from doing any business with them. Rather, the non-solicitation said that the prohibited activities had to be "for the purpose of diverting work or business." If Aversa was working with some entities in some areas where Saturn was not operating--as he was--then those activities were permitted under the agreement. 

The court did not, however, buy Aversa's argument that he did not run afoul of the non-solicitation clause because he did not contact the customer; the customer contacted him. The court noted that the clause had been expansively worded to include any "contact," not just solicitation, and therefore Aversa's returning of the customer's phone calls qualified. 

Aversa also tried to argue that Saturn had not alleged any trade secrets or confidential information that Aversa knew that Saturn was trying to protect. Rather, Saturn's allegations were more generally about Aversa's relationships with the customer at issue. Aversa stated that Saturn was therefore trying to prevent him from using his general skills and know-how, which it could not do. However, the court found that Saturn had a legitimate interest in protecting customer relationships to some extent, independent of any trade secrets or confidential information. The evidence showed that Saturn invested resources to help Aversa build business relationships on Saturn's behalf. Aversa could not then turn around and use that investment to harm Saturn. However, the court made clear that this prohibition applied only to Aversa working with the same people he'd personally worked with while at Saturn. Otherwise, Aversa would be subjected to undue hardship in his chosen career field. 

May 8, 2017 in Labor Contracts, Recent Cases, True Contracts | Permalink | Comments (0)

Friday, May 5, 2017

An "Egregious" Breach, But No Damages...

I haven't done a damages case in a while so here's one for you out of California, Wiring Connection, Inc. v. Amate, B264113

The parties entered into a lease totaling 65 months at $6,252 per month. After signing the lease, though, Amate leased the property to someone else and Wiring then had to lease a different property, under a three-year lease for $7,500 a month. Wiring sued for breach of contract and won. The court then had to determine damages. The lower court stated that the proper measure of damages would be the fair market value of Amate's property, less the amount Wiring had agreed to pay for it in the breached lease. Amate called an expert witness who testified that $6,252 had been the fair market value of Amate's property. The lower court was skeptical of this expert testimony, but Wiring did not call any expert witnesses of its own. Rather, Wiring argued that the proper measure of damages was the difference between what it would have paid in rent over 65 months at Amate's property and what it would pay in rent over the same time period at the property it had had to rent instead once Amate breached the lease.

The lower court said that, based on the evidence in front of it, it could not calculate any difference between the fair market value of Amate's property and the amount Wiring was going to pay under the lease, and found that it therefore could not award any damages to Wiring. The lower court said it was unhappy with the result, since Amate's breach had been "egregious," but it felt its hands were tied on the matter.

The appellate court agreed with the lower court. The lower court's statement of the measure of damages was the correct one, and Wiring failed to prove that there had been any difference between the fair market value and what was in the lease. Therefore, Wiring got nothing.  

I find this case a little curious because I find it difficult to believe that Wiring wasn't damaged in some way. Wiring is now paying substantially more for rent than it would have if the agreement had never been breached, after all. But it also seems like Wiring could have met its burden based on how much the new tenant was paying for Amate's property? I assume the new tenant was paying more (otherwise it would seem odd for Amate to breach, unless there was a personal relationship involved), and that that new tenant's monthly rate could be used to establish damages for Wiring. Probably not as high as the damages Wiring was seeking but at least something. But there is no discussion in the case of what the new tenant was paying, that I could see, so it either was less than Wiring was going to pay and so unhelpful to Wiring or Wiring simply ignored it in favor of putting all of their eggs in the basket of being compensated for the difference between their more expensive second lease. 

Either way, this is a painful damages case from Wiring's perspective. A welcome one, of course, from Amate's perspective! 

May 5, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, May 4, 2017

A Mistake Case Results in Rescission of a Contract

Sometimes rights can get passed along like a game of telephone. A recent case out of California, M.U.S.E. Picture Productions Holding Corp. v. Weinbach, B261146 (behind paywall), deals with a mistake that voids the original contract for those rights. 

Muse agreed to develop a film based on the book and screenplay "The Killer Inside Me," which Weinbach claimed to own the rights to. After about a decade during which Muse did not produce the film, Muse sold its rights to Windwings, and then Windwings sold its rights to Kim, who eventually produced a movie. In the meantime, Muse sued Weinbach for intentional misrepresentation during the original negotiation for the right, and Weinbach cross-claimed for breach of the agreement stemming from Kim's production of the movie. (Windwings and Kim were also involved in litigation with Weinbach, not relevant to this blog entry, but you can find a ruling from it here.)

Basically, Muse contended that Weinbach did not have the right to produce the film based on the novel at the time that he transferred those rights to Muse. Weinbach contended, however, that this was not a mistake of fact but rather one of judgment because it relied upon a later court interpretation of the extent of Weinbach's rights. The court agreed with Muse, however. Weinbach had repeatedly told Muse that he had the right to produce a movie from the book and never wavered from that, so it wasn't like Muse ever thought it was negotiating for a dubious right; Muse thought Weinbach had the right, because that's what Weinbach asserted. A later court ruling raised doubts, but Muse had had no reason to ever expect a later court ruling on the question. This mistake was material because Muse would not have entered into the contract if it had thought Weinbach didn't possess the right in question. And there was no evidence that Muse assumed the risk that Weinbach didn't have that right. Therefore, this mistake justified rescission of the contract. 

May 4, 2017 in Current Affairs, Film, In the News, Recent Cases, True Contracts | Permalink | Comments (0)

Wednesday, May 3, 2017

Forum non conveniens Doesn't Overcome Forum Selection Clauses

A recent case out of Delaware, SRL Mondani, LLC v. Modani Spa Resort, Ltd., C.A. No. N16C-04-010 EMD CCLD, deals with forum issues. In the case, the parties had entered into a number of contracts. The contracts at issue in the dispute between them both contained forum selection clauses that disputes should be brought in Delaware court. A third contract between the parties, not explicitly at issue in the dispute, had a forum selection clause that disputes should be brought in Israeli court. Modani argued that the Israeli forum selection clause should control, but SRL was seeking to enforce the Delaware agreements, not the Israeli one, and so the court found the Israeli forum selection clause didn't matter. 

In the alternative, Modani tried to argue that the action should be dismissed under forum non conveniens. Modani's argument was that the relevant documents were located in Israel. The court, however, noted that "modern methods of communication" meant it was relatively easy to get the documents over to Delaware. While Modani alleged that the relevant witnesses were located in Israel, it failed to explain exactly what testimony those witnesses might have and why they were relevant, so the court was not convinced. The court did acknowledge that Modani's principles were located in Israel and had no ties to Delaware but at all but the court also pointed out that the contracts at issue had resulted from negotiations between two sophisticated businesses with millions of dollars at stake, so it was unpersuaded by Modani's allegations of hardship. Because the dispute was about enforcement of contracts with clauses requiring the application of Delaware law, Delaware was the best forum. 

May 3, 2017 in Current Affairs, In the News, Recent Cases, Travel, True Contracts, Web/Tech | Permalink | Comments (0)

Tuesday, May 2, 2017

Some Fun with Offers!

Here's some fun with offers from Kirin Produce Co. v. Lun Fat Produce, Inc., Docket Number 1684 CV 03338-BLS2, a recent case out of Massachusetts. 

The dispute revolved around whether any of Kirin's actions constituted an offer that Lun Fat could accept form a binding contract. Over about a month's time, Kirin sent to Lun Fat a series of spreadsheets proposing terms under which it would be willing to buy Lun Fat's assets. However, each of these spreadsheets was labeled in several places that they were "subject . . . to change," including "Change by both Seller & Buyer." Under these circumstances, Kirin failed to manifest any present intention to be bound and so none of those spreadsheets constituted an offer. 

Lun Fat eventually responded to one of Kirin's spreadsheets with an email proposing a series of new terms, but the court found nothing in the email stated that this was a counteroffer and that Lun Fat was willing to sell if Kirin accepted those terms. At any rate, Kirin did not accept the terms but rather proposed new terms in response. The court construed that response as a rejection of any offer by Lun Fat and a counteroffer by Kirin. 

Later, Lun Fat called Kirin on the phone and orally offered to sell Lun Fat's assets on the terms that had been in Lun Fat's e-mail. Even if Kirin had accepted that oral offer, though, it was ineffective because this was a deal for land and thus subject to the statute of frauds. 

Therefore, there was never any contract between the parties. 

May 2, 2017 in Recent Cases, Teaching, True Contracts, Web/Tech | Permalink | Comments (0)

Monday, May 1, 2017

Implied Waiver of an Arbitration Clause Is a High Burden

A recent case out of Texas, Legoland Discovery Centre (Dallas), LLC v. Superior Builders, LLC, No. 02-16-00425-CV (behind paywall), reaffirms how difficult it is to prove that a party waived its right to arbitration through substantially invoking the judicial process. 

In the case, Legoland notified Superior that it was terminating its contract due to alleged breaches on Superior's part. Superior then sued Legoland. Legoland responded, raising compulsory counterclaims. Superior than added as defendants the subcontractors that were identified by Legoland's counterclaims. A scheduling order was entered and the parties conducted some "basic" discovery, while Legoland systematically began settling with the subcontractors. A few days after it settled with the last subcontractor, twenty-two months after Superior had filed suit, Legoland moved to compel arbitration under the arbitration clause of its contract with Superior. Superior argued that Legoland had waived its right to arbitration because it had substantially invoked the judicial process, and the trial court agreed. 

The appellate court reversed, however, noting that the burden is high and implied waiver is seldom found. Legoland had participated in the ongoing court case, but only in a routine manner. The discovery conducted by the parties had not been extensive, and Legoland did not seek summary judgment. It was true that Legoland had brought counterclaims but they were compulsory. It was also true that Legoland waited almost two years after the filing of the complaint to seek arbitration but in the interim it had been settling with the subcontractors, who had not agreed to the arbitration clause that Superior was contractually bound by, and it sought arbitration almost as soon as the last subcontractor had settled out. Therefore, the appellate court ordered the parties to arbitration pursuant to their contract. 

May 1, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Sunday, April 30, 2017

"Losses" in an Expense-Shifting Clause Includes Diverted Staff Time

A recent case out of Maryland, Under Armour, Inc. v. Ziger/Snead, LLP, No. 802 September Term 2016, offers an interpretation of an expense-shifting clause in a contract. The clause in question read: 

"If Architect [Ziger/Snead] employs counsel or an agency to enforce this Agreement, Owner [appellant] agrees to pay the attorneys' fees, costs, expenses, and losses incurred by Architect prior to and through any trial, hearing, and/or subsequent proceeding, relating to such enforcement."

Following a legal dispute and a jury verdict in the architect's favor, the architect moved for attorneys' fees, costs, expenses, and losses, pursuant to the contractual clause above. Under Armour refused to pay the amount characterized as "losses," which seem to have been mainly diverted employee time. Under Armour's stance was that "losses" was too vague a term to cover "staff time." Rather, Under Armour claimed that "losses" was the equivalent of the attorneys' fees, costs, and expenses that had already been listed. 

The court, however, pointed out that "losses" was a term that had been negotiated by two sophisticated parties, and so must have some meaning. Other courts have held that diverted staff time can be included in losses. Therefore, where the contract did not mention staff time one way or the other, the court held it was permissible to conclude that the term "losses" meant to cover for diverted staff time. 

April 30, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Sunday, April 23, 2017

Clever Price Interpretation Issue

Take a look at the below quote for “calendered” fabric by weight and consider what you think is the total price for the fabric (“tire cords”) including the calendering process by which rubber is compressed into the fabric sheets. There is no dispute that the “Polyester Tire Cord Only” line refers to fabric sheets purchased by Obermeyer from CSI and that the “Calendering, Compound & Poly Only” line refers to the calendering. Consider also that to get one pound of calendered fabric, Obermeyer would buy one half pound of fabric sheet at $1.87 and pay $2.23 to have that amount calendered into one pound of fabric. I76dd18d0184911e7a6d3010000000000

Should the total price be $4.10 or $5.97? Buyer says $4.10. Seller, of course, insists on $5.97; an almost 50% price increase above the buyer’s expectations. How would that be possible? Consider this:

“The increase is a consequence of the fact that calendering doubles the weight of the fabric. To obtain one pound of calendered fabric under the [above] pricing, Obermeyer would purchase one-half pound of fabric sheet (for $1.87) and pay $2.23 for that half pound to be calendered into one pound of calendered fabric. That came to $4.10 per pound of calendered fabric. Under CSI's interpretation of the January quote, however, Obermeyer would pay $5.97 for the same product. The essence of the parties' dispute is whether the $3.74/lb price of the fabric sheets is based on the weight of the untreated sheets (the untreated pricing) or the weight of the calendered product (the treated pricing).”

A motion for summary judgment was granted in favor of CSI. A Tenth Circuit Court of Appeals Court reversed and remanded for further proceedings to, among other things, allow the lower court to find out what the course of dealing between these parties had been. Said the court:

“CSI cautions that a decision against it would inject untenable uncertainty into commercial transactions by encouraging contracting parties to remain ignorant of the prices they pay. We disagree. There is a strong policy interest in encouraging trust between parties to commercial transactions. Commerce is not enhanced if buyers and sellers must always treat each other as adversaries, auditing every transaction as it occurs to be sure the other party is not cheating. If the jury finds that Obermeyer had been misled by an unscrupulous supplier on which it had relied in good faith, we do not think that the world of commerce will suffer from a verdict in favor of Obermeyer.

The case shows the importance of sufficiently elaborate contract drafting. Sometimes, less is more, but at other times, such as here, more detail would have been helpful. After the fact, it is much more difficult to ascertain whether fraud was at issue from the outset, at the end, or whether the buyer simply misunderstood the situation… the latter is a little hard to accept on the given facts, but on remand, hopefully the truth will come out.

The case is Obermeyer Hydro Accessories, Inc. v. CSI Calendering, Inc., 2017 WL 1174350, No. 16-1083 (March 30, 2017).

April 23, 2017 in True Contracts | Permalink | Comments (0)

Saturday, April 15, 2017

A False Advertising Case Isn't Covered by "Personal and Advertising Injury" Insurance

A recent case out of the Sixth Circuit, Vitamin Health, Inc. v. Hartford Casualty Insurance Co., No. 16-1724, settled a dispute between Vitamin Health and its insurance company over Vitamin Health's expenses defending against a false advertising suit. Bausch & Lomb alleged that Vitamin Health was making false statements about its own products in its advertisements. Vitmain Health sought coverage from Hartford as "personal and advertising injury," but Hartford denied defense. 

The court agreed with Hartford. The "personal and advertising injury" covered under Hartford's policy was defined in the policy as disparagement of other people's goods or services. At issue in the false advertising case was Vitamin Health's statements about its own products, which were not disparaging. There was no "disparagement." 

Vitamin Health's theory was that its statement about its products disparaged its competitors' products by implication. The Sixth Circuit didn't buy that theory, though. Vitamin Health's statements did not make claims about the superiority of its product compared to its competitors, so even if disparagement-by-implication were a valid doctrine. The case was simply about false advertising, not disparagement, and hence not covered by Hartford's insurance policy. 

April 15, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Friday, April 14, 2017

A Copyright Claim References Contracts, But Doesn't Bind Copyright Holder to Those Contracts

A recent case out of the Eastern District of Pennsylvania, Krist v. Pearson Education, Inc., Civil Action No. 16-6178, deals with whether a copyright holder's lawsuit can be governed by a contract between sublicensees with regard to forum selection. The answer: No. 

In the case, a photographer, Krist, licensed hundreds of his photograph to a stock photography agency, Corbis. Corbis then sublicensed the photographs to third parties. Corbis and Krist had agreements permitting this sublicensing; Corbis also entered into agreements with the sublicensees, including Pearson. 

Krist's allegations were that Pearson was using photographs outside of the terms of its contract with Corbis, resulting in copyright infringement. Pearson sought to transfer venue to the Southern District of New York, based on its forum selection clause in its agreements with Corbis. Although Krist was not a party to those contracts, Pearson argued that Krist's lawsuit was based on the contracts; Krist was a beneficiary of the contracts; and Corbis was acting as Krist's agent in entering into the contracts. 

But the court noted that Krist had not asserted any contract claims. His claims were entirely copyright-based. While the case would require "consideration" of the Corbis-Pearson contracts, that was not enough to bind Krist to the forum selection clause in a contract that Krist was not a party to. Krist had no continuing control over Corbis's activities, and so had not had the ability to comment on or affect or influence Corbis's acceptance of the forum selection clause. 

April 14, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Wednesday, April 5, 2017

Nevada Court: There Was No Oral Contract, and It Needed to Be in Writing Anyway

A recent case out of the District of Nevada, Greenstein v. Wells Fargo Bank, Case No. 2:14-cv-01457-APG-CWH (behind paywall), reminds us of the importance of the statute of frauds as a useful doctrine that can clarify when parties have entered into a contract and when they haven't. Greenstein contended that he and Wells Fargo had entered into an oral contract regarding modifying his existing home loan. However, Wells Fargo disputed that. The court agreed with Wells Fargo that there was no contract, because Greenstein at best had alleged that, during multiple telephone calls, Wells Fargo had represented that it "might" agree later to a modification. Wells Fargo did tell Greenstein that he needed to reduce his principal to qualify for a modification, but that was not the same thing as saying that he definitely would qualify for a modification if he paid down the principal (which, in any case, he did not do). 

Greenstein apparently misinterpreted these conversations with Wells Fargo, none of which amounted to an offer or acceptance or even any material terms. This is precisely the sort of situation that the statute of frauds exists to try to alleviate: Because the contract involved land, it needed to be in writing. It never was, and surely any writing between the parties would have cleared up at least some of the misunderstanding between the parties. Oral contracts (alleged or existing) lend themselves easily to mistaken conclusions; making the land contract be in writing at least sometimes saves confusion and disagreement over these all-important terms. 

April 5, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)

Monday, April 3, 2017

University Decisions on Disciplinary Procedures Receive Deference; Cannot Be Arbitrary, Capricious, or in Bad Faith

A recent case out of the District of Nevada, Janati v. University of Nevada, Las Vegas School of Dental Medicine, Case No. 2:15-cv-01367-APG-CWH (behind paywall), discusses the leeway universities have in enforcing the policies in their student manuals. The student was suspended from UNLV Dental School for plagiarism, and, in addition to raising constitutional due process and First Amendment issues, she contended that UNLV breached its Student Policy Manual and as such was in breach of contract. UNLV agreed that the Student Policy Manual constituted a binding contract between the school and the student but contended that its decisions on disciplinary procedures under the manual were entitled to "significant deference." 

The court agreed. The standard for determining if the university had violated its disciplinary procedure was "arbitrary, capricious, or bad faith," "without any discernable rational basis." The university's actions did not rise to that level in this case. The complaint concerning the student's Honor Code violations was required by the manual to "include specifics" of the conduct at issue, including any witnesses to the conduct. The complaint against the student here neglected to name two of the faculty members involved and left off the names of some of the witnesses, but the student admitted that she knew who everyone involved with the complaint was, even prior to its filing. There was also some confusion about whether the university failed to solicit information from one of the witnesses during the first Honor Council proceeding, but all of the parties agreed that, to the extent that witness was overlooked, he did provide information during the second proceeding the parties held. 

The court found that none of those rose to the high bar of violation of the disciplinary procedures and therefore the student could not sustain a breach of contract claim. 

April 3, 2017 in Current Affairs, In the News, Recent Cases, Teaching, True Contracts | Permalink | Comments (0)

Saturday, April 1, 2017

"Discovery Rule" Doesn't Apply to Entertainment Company's Failure to Investigate a Known Breach

 

Here are the logos together, in happier times, from one of the movies at issue in this case, Henry Poole Is Here

A recent case out of California, Camelot Pictures LLC v. Lakeshore Entertainment Group, LLC, B269430, gives us a nice run-down on statute of limitations in contracts cases, in that state at least. The case involves breaches of "Equity Term Sheets" between two entertainment companies involved in making together the movies Pathology and Henry Poole Is Here. Unfortunately for Camelot in this case, it raised the issue of these breaches by Lakeshore too late. 

Camelot sued Lakeshore in November 2013 and eventually won an award in excess of $300,000. The problem, though, was, as Lakeshore argued on appeals, Camelot's claim was outside the four-year statute of limitations governing breaches of contract in California. And the appellate court agreed. 

The appellate court provided a summary of how the statute of limitations works for breaches of contract in California. Generally, the cause of action is considered to have accrued at the time of the breach, "regardless of whether any substantial damage is apparent or ascertainable." However, in "certain, limited circumstances," the accrual-on-breach rule can be replaced by the "discovery rule," which provides that breaches that are "committed in secret" and whose harm is not "reasonably discoverable" will be considered to have accrued on the date of the discovery of the breach, not the date the breach occurred. 

The trial court found that the discovery rule applied, and that Camelot had not discovered Lakeshore's breaches until the summer of 2011, within the statute of limitations period. That date was the date on which Camelot was advised by a consultant that Lakeshore's alternate accounting methodology was not beneficial to Camelot. However, Camelot had known that Lakeshore was using an alternate accounting methodology--in violation of the Equity Term Sheets--since December 2008. On that date, Camelot explicitly raised the fact that Lakeshore was not complying with the terms of the Equity Term Sheets. Camelot simply failed to pursue this lack of compliance for several years. Lakeshore's breach was therefore not "committed in secret" such that the discovery rule should apply. Indeed, Camelot admitted that it knew about the breach as soon as Lakeshore committed it; Lakeshore made no efforts to conceal it. Camelot did not know the impact of that breach until much later, but it could have discovered the impact much sooner, had it employed a consultant sooner than three years later to look into Lakeshore's conduct. Therefore, the trial court's judgment for Camelot was reversed. 

April 1, 2017 in Film, Recent Cases, True Contracts | Permalink | Comments (1)