ContractsProf Blog

A Showdown Involving the NFL, the AP, and Professional Photographers

Above the Law has a write-up of a case involving charges of copyright infringement against the NFL for using photographs without permission, but the case has a very strong contract angle, as the allegations involve the scope and validity of the license that the AP granted to the NFL for the photos. The Second Circuit has a contract-interpretation-focused analysis that permits the photographers' lawsuit to go forward (the district court had dismissed the complaint). You can read the full decision here.

(Ostensibly) Weekly Top Ten SSRN Contracts & Commercial Law Downloads (September 20, 2018)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 22 Jul 2018 - 20 Sep 2018

Rank	Paper	Downloads
1.	Coin-Operated Capitalism Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff and David A. Wishnick University of Pennsylvania, School of Engineering & Applied Science, University of Pennsylvania Law School, University of Pennsylvania Law School - Student/Alumni/Adjunct and University of Pennsylvania - Center for Technology, Innovation & Competition	4,565
2.	Graying of U.S. Bankruptcy: Fallout from Life in a Risk Society Deborah Thorne, Pamela Foohey, Robert M. Lawless and Katherine M. Porter University of Idaho, Indiana University Maurer School of Law, University of Illinois College of Law and University of California - Irvine School of Law	3,033
3.	Online Contracts (2018) Eric Goldman Santa Clara University - School of Law	434
4.	The SAFE, the KISS, and the Note: A Survey of Startup Seed Financing Contracts John F. Coyle and Joseph M. Green University of North Carolina School of Law and Thomson Reuters Practical Law	328
5.	Will the Sharing Economy Increase Inequality? Gregory M. Stein University of Tennessee College of Law	217
6.	Demystifying Technology. Do Smart Contracts Require a New Legal Framework? Regulatory Fragmentation, Self-Regulation, Public Regulation. Marco Dell'Erba New York University School of Law	191
7.	Bankruptcy Claims Trading Jared A. Ellias University of California, Hastings	148
8.	Blockchain Bills of Lading Elson Ong National University of Singapore (NUS) - Centre for Maritime Law	129
9.	New Frontiers in Private Fiduciary Law Paul B. Miller Notre Dame Law School	126
10.	Poor Consumer(s) Law: The Case of High-Cost Credit and Payday Loans Shmuel I. Becher, Yuval Feldman and Orly Lobel Victoria University of Wellington, Bar-Ilan University - Faculty of Law and University of San Diego School of Law	115

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 22 Jul 2018 - 20 Sep 2018

Rank	Paper	Downloads
1.	Online Contracts (2018) Eric Goldman Santa Clara University - School of Law	434
2.	The SAFE, the KISS, and the Note: A Survey of Startup Seed Financing Contracts John F. Coyle and Joseph M. Green University of North Carolina School of Law and Thomson Reuters Practical Law	328
3.	Will the Sharing Economy Increase Inequality? Gregory M. Stein University of Tennessee College of Law	217
4.	Demystifying Technology. Do Smart Contracts Require a New Legal Framework? Regulatory Fragmentation, Self-Regulation, Public Regulation. Marco Dell'Erba New York University School of Law	191
5.	The Impact of the Hague Principles on Choice of Law in International Commercial Contracts Michael Douglas and Nicholas Loadsman The University of Western Australia Law School and Clayton Utz	100
6.	Arbitration Nation: Data from Four Providers Andrea Chandrasekher and David Horton University of California, Davis - School of Law and University of California, Davis - School of Law	96
7.	Purposive Contractual Interpretation Andrew Robertson The University of Melbourne - Law School	92
8.	The Chilling Effect of Governance-by-Data on Data Markets Niva Elkin-Koren and Michal Gal University of Haifa - Faculty of Law and University of Haifa - Faculty of Law	66
9.	Split Derivatives: Inside the World's Most Misunderstood Contract Dan Awrey University of Oxford, Faculty of Law	64
10.	Foundationalism About Contract Law: A Sceptical View George Letsas and Prince Saprai University College London - Faculty of Laws and University College London - Faculty of Laws	60

Deadline TODAY for CSLSA Conference Registration and Hotel Block

For any of you considering attending and presenting your work (at any stage) at the Central States Law Schools Association’s 2018 Annual Scholarship Conference next month, TODAY (September 20) is your last chance to register and reserve a room in the hotel block (Sheraton - Downtown Fort Worth, which is literally next door to the law school and is offering $159/night)!

 

If you have already registered but held off on booking your hotel accommodations, well... you should take care of that today!

 

The conference will be Friday, October 12 and Saturday, October 13 at Texas A&M University School of Law in Fort Worth. Those who have attended in the past can attest to the fact that CSLSA provides a friendly and constructive environment for promoting legal scholarship across the board, including strong showings in areas beloved to readers of this blog, like contracts, commercial law, teaching methods, and more.

 

All the conference and hotel information you need is accessible here: http://www.cslsa.us/

 

I (Mark, that is) hope to see many of you in Fort Worth next month. But today is your last chance!

Executives and Sexual Harassment Allegations

Rachel Arnow-Richman (Denver Law) has an op-ed today in the San Francisco Chronicle about CBS’s ouster of CEO Les Moonves and companies’ contractual obligations to their highest executives in the midst of severe sexual harassment allegations:

“If #MeToo is to have lasting impact, companies must consistently take a hard line against high-level harassment, not just when it aligns with their other interests. This means abandoning contracts that insulate executives from accountability in favor of those that preserve employers’ ability to respond swiftly and nimbly to alleged violations of law.” 

Court refuses to judge what adequate spiritual leadership looks like

A recent case out of the Third Circuit, Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, No. 17-3086, applies the ministerial exception of the First Amendment and refuses to entangle the court in a breach of contract dispute between a pastor and his former church. The parties had entered into a contract providing that Lee would serve as the Church's pastor for a twenty-year term. The contract provided for termination if its terms were breached. The Church terminated Lee's employment and alleged that he had failed to provide adequate spiritual leadership, as he was required to do by the terms of the contract. Lee disputed this, but the court refused to get involved, citing the ministerial exception. Courts aren't supposed to get entangled in "religious governance and doctrine," and asking the court to judge the quality of Lee's spiritual leadership under the contract would be just such an entanglement. 

 

You can listen to the oral arguments here. Some press coverage of the district court's decision can be found here. 

Here's one for the "house renovations gone wrong" file

If you're turning to teaching damages in your semester, here's a recent case out of Florida for you, Forbes v. Prime General Contractors, Inc., Case No. 2D17-353. This is one of those cases where the homeowners and the contractor had a contract where the homeowners would pay periodically, as milestones for the work were reached. After completion of the scheduled demolition, though, the contractor told the homeowners that the cost to complete the project had almost doubled. The homeowners refused to pay the extra money, insisting on enforcement of the cost in the contract. The contractor walked off the job at that point. The home, having been in the demolition stage of the project, was uninhabitable. The homeowners rented another house and looked in vain for another contractor to finish the job. Finally, they bought a new house and let the old house go into foreclosure. They also sued the contractor for breach of contract. 

The homeowners won their beach of contract case, but the lower court only awarded them their cost of renting the alternative house as damages, stating that the homeowners had failed to prove any other damages and also had failed to mitigate damages. The appellate court disagreed. The appellate court permitted the homeowners to treat the breach of contract as total and found that they should be awarded damages to place them in the position they would have been in had they never signed the contract. This could include reimbursement of the amount they had paid the contractor and the equity they lost in their home when they had to let it lapse into foreclosure, as well as the rent they had paid. 

The appellate court also found that the homeowners had taken reasonable steps to mitigate damages. They rented while they searched for someone to finish the renovations. When that search failed, they bought a new house rather than continuing to make rent payments. Even if they hadn't bought the new house, they would not have been able to afford continuing to pay rent and the mortgage on the uninhabitable house, so whether they were renting or owning that house would have lapsed into foreclosure either way. The appellate court found that there was nothing else the homeowners could have done to avoid further damages. 

Intersection between Animal Law and Contracts law - new book

From our friends at Animal Legal Defense Funds:

Animal Law – New Perspectives on Teaching Traditional Law presents a fresh perspective on the courses that law professors are already teaching, all while introducing law students to the relevance of animal issues in a variety of areas, including:·         Contract Law

·         Constitutional Law

·         Criminal Law

·         Environmental Law

·         Property Law

·         Tort Law

·         Wills and Trusts Law

Due to the ubiquitous presence and use of animals in our society, animal law overlaps with most other areas of the law and provides an engaging lens through which to explore core legal concepts. Analyzing animal law cases within traditional areas of law encourages critical thinking about the function of certain legal constructs and tests the law’s ability to respond to new information and evolving social norms.

It’s a crucial time for academics to begin making and discussing these important connections. Animal law is a rapidly growing field and an increasing number of students are attending law school to study it full-time, or at least incorporate it into their practice after graduation.

Professors can purchase the book through the publisher Carolina Academic Press or through RedShelf, buying only the chapters relevant to their area of expertise.

Webinar

The authors of the book will be hosting a free webinar Friday, September 28, 2018 from 12:00 – 1:30 p.m. PT. This webinar will give professors and law students an opportunity to hear from the authors as they discuss the inspiration behind the book and why it’s important for law professors to include animal law in their discussions. They will also detail substantive features in every chapter, and review ways in which they can be incorporated into pre-existing courses.

For more information, please visit aldf.org/casebook

Course Guides

Finally, for those professors interested in teaching an entire course on animal law, the Animal Legal Defense Fund, the nation’s preeminent legal advocacy for animals, has developed three curriculum resources to provide tangible support and guidance to those who wish to offer new classes but may not have the time to design them from scratch. Each guide serves as a comprehensive sample syllabus with a suggested course outline, textbooks, topics, reading and writing assignments, student objectives, and teaching notes. For anyone wishing to expand the animal law offerings at their school by offering an elective in one of these areas, the guides will be an invaluable resource.

The three course guides, and memos in support of adding such a class to the curriculum, are now available on our animal law instructor site and are linked here:

·         Companion Animal Law Course Guide and Supporting Memo

·         Farmed Animal Law Course Guide and Supporting Memo

·         Wildlife Law Course Guide and Supporting Memo

UCC statute of limitations dooms claim

Here at the beginning of the semester, I've just been going over determining whether the UCC or common law applies to contract claims, and here's a recent case out of the Seventh Circuit, Heiman v. Bimbo Foods Bakeries Distribution Co., No. 17-3366, that illustrates why that question can be important. 

The case involves some pretty eyebrow-raising allegations, as, according to the complaint, the defendant began "fabricating" breaches of the contract between the parties, so that it could terminate the contract based on these allegedly faked breaches. Pretty dramatic stuff, but the case falls apart on a statute of limitations issue. The UCC statute of limitations is four years; the relevant common law statute of limitations was ten years. All parties agreed that the cause of action accrued in 2011, so the statute of limitations would have already run if the UCC applied; not so if the common law statute of limitations was applied. 

The court looked at the primary purpose of the agreement. The agreement at issue was a distribution agreement, and the court noted that jurisdictions overwhelmingly interpret distributorship agreements to be about the sale of goods. While the agreement certainly also covered "a significant amount of services," those serves were all "incidental to the larger purpose of the contract, which [was] to sell goods to consumers." Therefore, the contract was governed by the UCC and barred as untimely. 

There was also a tortious interference claim that likewise failed because the complaint admitted that the plaintiff was aware of the possibility of its tortious interference claim in 2011, and so therefore this claim was also untimely under the relevant statute of limitations. The court also added that a party cannot tortiously interfere with its own contract, so the claim failed on the merits as well. 

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (September 4, 2018)

 

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 09 Jun 2018 - 08 Aug 2018

 

Rank	Paper	Downloads
1.	Online Contracts (2018) Eric Goldman Santa Clara University - School of Law	371
2.	Data Pollution Omri Ben-Shahar University of Chicago Law School	250
3.	The Persistence of 'Dumb' Contracts Jeffrey M. Lipshaw Suffolk University Law School	200
4.	Cash America and the Structure of Bondholder Remedies G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law	153
5.	Not-So-Smart Blockchain Contracts and Artificial Responsibility Adam J. Kolber Brooklyn Law School	131
6.	Behavioral Law and Economics - Introduction Eyal Zamir and Doron Teichman Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law	131
7.	Force Majeure and Excuses in Smart Contracts Eric Tjong Tjin Tai Tilburg Law School	120
8.	New Frontiers in Private Fiduciary Law Paul B. Miller Notre Dame Law School	109
9.	Personalizing Mandatory Rules in Contract Law Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	98
10.	Freedom, Choice, and Contracts Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School	95

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 09 Jun 2018 - 08 Aug 2018

 

Rank	Paper	Downloads
1.	Online Contracts (2018) Eric Goldman Santa Clara University - School of Law	371
2.	Data Pollution Omri Ben-Shahar University of Chicago Law School	250
3.	The Persistence of 'Dumb' Contracts Jeffrey M. Lipshaw Suffolk University Law School	200
4.	Force Majeure and Excuses in Smart Contracts Eric Tjong Tjin Tai Tilburg Law School	120
5.	Personalizing Mandatory Rules in Contract Law Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	98
6.	Freedom, Choice, and Contracts Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School	95
7.	The Impact of the French Doctrine of Significant Imbalance on International Business Transactions David Restrepo-Amariles, Eva Mouial Bassilana and Matteo Winkler HEC Paris - Tax & Law, Université Côte d'Azur and HEC Paris	83
8.	Purposive Contractual Interpretation Andrew Robertson The University of Melbourne - Law School	75
9.	Why the Equity of Redemption? D.P. Waddilove Harvard Law School	69
10.	Breach of Contract: A Plea for Clarity and Discipline Neil H. Andrews University of Cambridge - Faculty of Law	66

Reminder that punitive damagers are not typically available for breach of contract claims

I don't blog a lot about contracts damages, but a recent opinion out of New York, St. Stephen Community A.M.E. Church v. 2131 8th Avenue LLC, 650558/11, had a discussion of the damages which it would allow the plaintiff to try to prove at trial. Specifically, the defendant was complaining about the plaintiff's seeking of lost income and punitive damages. The court found that the lost income damages would be permitted to survive to give the plaintiff an opportunity to prove them at trial with sufficient certainty. The plaintiff claimed that its board members would be able to testify at trial about the loss of revenue it suffered, and so the court did not think these were too speculative not to allow such testimony.

The plaintiff's punitive damages claim was a different story, however. The plaintiff argued that punitive damages were appropriate because a breach of fiduciary duty was at stake, but the court found that that was so only when the breach was "an outrageous public wrong," and there was nothing in this case that involved the "moral culpability" the court needed to award punitive damages. Likewise, punitive damages are normally recoverable from a breach of contract action only when there is a public right at issue or when an independent tort justifies such an award. Neither was relevant here, and so the court precluded the plaintiff from recovering punitive damages in connection with its breach of contract claims. 

Job posting - St. Thomas University School of Law

ST. THOMAS UNIVERSITY SCHOOL OF LAW seeks to fill entry-level tenure-track or, lateral tenure-track,-position(s) beginning in Fall 2019 in the areas of: Contracts, Business Associations, Tax Law, Criminal Law & Procedure, Evidence, Health Law, Tax Clinic, Academic Support and Bar Prep. Other doctrinal areas may be considered depending on the institutional needs. All applicants must have a strong academic record and be committed to outstanding teaching, scholarship and service. Prior teaching experience preferred.

 

St. Thomas University School of Law trains lawyers capable of applying legal principles to address and solve problems in an increasingly complex and changing society. The rigorous academic program of the Law School emphasizes lifelong learning and scholarship in a personalized, caring environment under Catholic auspices with a diverse student body and faculty. To this end, the Law School remains committed in teaching, scholarship, and service, to fostering a public order of human dignity, to training lawyers sensitive to the needs of the region’s underrepresented communities, and to expanding access to professional opportunities which includes active partnerships with business, government and the South Florida community.

 

St. Thomas encourages applications from all candidates, including women and minorities, who will contribute to our stimulating and diverse cultural and intellectual environment. The Faculty Recruitment Committee will review applications on a rolling basis, and anticipate attending the AALS Faculty Recruitment Conference in October 2018. Applicants should send a cover letter indicating teaching and scholarly interests, a curriculum vitae to Professor Mark Wolff, Chair Faculty Recruitment Committee at St. Thomas University School of Law, 16401 NW 37th Avenue, Miami Gardens, FL 33054 or email mwolff@stu.edu.

 

October 12-13 CSLSA 2018 Scholarship Conference at Texas A&M University School of Law

The Registration deadline has been extended until September 20, 2018 for the Central States Law Schools Association 2018 Scholarship Conference. The conference will be held on Friday, October 12 and Saturday, October 13 at the Texas A&M University School of Law in Fort Worth, Texas. We invite law faculty from across the country to submit proposals to present papers or works in progress.

The conference hotel is the Sheraton Fort Worth Downtown Hotel, which is conveniently located immediately next door to the law school. The conference rate is $159 per night and can be accessed by going here to the special CSLSA booking site. The cutoff date for the hotel block is September 20, 2018, so please make your reservations today!

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.

Please click here to register.

For more information about CSLSA and the 2018 Annual Conference please subscribe to the CSLSA blog. We look forward to seeing you in Fort Worth!

New Journal Just for Us!

The Journal of Strategic Contracting and Negotiation (JSCAN) is open for submissions!  JSCAN, a SAGE publication, is "an outlet for research and theory about practices that challenge the status quo in strategic contracting and negotiations, and the commercial implementation of business strategy or policy."  JSCAN is peer-reviewed and welcomes submissions in a wide variety of fields. It may have special appeal to those who write on contract-related topics that have cross-over appeal to those affiliated with business and business schools. (Disclosure:  I am on the editorial board).  You can find more information here.

Court finds HomeAway gives sufficient notice of its terms and conditions online

A recent case out of the Western District of Texas, May v. Expedia, Inc., No. A-16-CV-1211-RP (behind paywall), examines the enforceability of HomeAway.com's online contract. HomeAway is a website that offers vacation rental properties. Property owners can buy one-year subscriptions to HomeAway to list their properties for rent on the website. May was a property owner who had purchased successive annual subscriptions to HomeAway, and who now sues based on several breach of contract and fraud allegations, together with related state claims. HomeAway moved to compel arbitration, pointing to its terms and conditions. Specifically, in July 2016 HomeAway amended its Terms and Conditions to include a mandatory arbitration clause. May allegedly agreed to this clause when he renewed his HomeAway subscription in September 2016, and again when he booked his property through the website in October 2016. 

May argued that he did not agree to the terms and conditions when he renewed his annual subscription because he changed the name on the account to his wife's name in an effort to avoid being bound by the new terms, but the court found that had no effect on the effectiveness of the terms and conditions and that May bound himself when he renewed his subscription, regardless of changing the name on the account. May was trying to take advantage of the benefits of the subscription without binding himself to the terms, and the court found that to be inequitable. 

The court  already found May to be bound but for the sake of completeness also analyzed May's argument that he was not bound when the property was booked because he did not receive sufficient notice of the terms and conditions, which gives us further precedent on how to make an enforceable online contract. The HomeAway site required the clicking of a "continue" button, and wrote above the button that the user was agreeing to the terms and conditions if they clicked the button, with a hyperlink to the terms and conditions. The court found this to be sufficient notice of the terms and conditions. 

Ninth Circuit courts continue to not love arbitration clauses as much as the Supreme Court does

Revitch received an automated advertising call from DirecTV to his cell phone, and sued alleging violations of the Telephone Consumer Protection Act. Revitch was a wireless customer of AT&T, so DirecTV moved to compel arbitration under its sibling corporation's wireless service contract with Revitch. This recent case out of the Northern District of California, Revitch v. DirecTV, LLC, No. 18-cv-01127-JCS, denied the motion, finding that the arbitration clause did not cover claims with DirecTV completely unrelated to the wireless services provided under the AT&T contract. 

It was true that the arbitration provision covered affiliates, and it was also true that DirecTV was an affiliate of AT&T, having become sibling companies a few years after Revitch entered into the contract with AT&T. But the court characterized the establishment of this relationship as a "completely fortuitous fact." The court noted that the intention for wording the clause broadly and including affiliates was typically to cover situations regarding assignments or successors. Nothing of the sort had happened here. No benefits under the contract had been assigned to DirecTV, nor had DirecTV undertaken any obligations under the contract. The calls Revitch was complaining about had nothing at all to do with the wireless service covered by the contract. So the precedent DirecTV tried to rely on was all distinguishable in the view of the court: "The Court concludes that Adams and Andermann, at most, support the conclusion that an entity may become an affiliate subject to the arbitration contract after the time of contracting where that relationship arises from an assignment of the underlying agreement or a related entity becomes a successor to the original contracting entity. That is not the case here."

The court interpreted the arbitration clause of the contract according to ordinary rules of contract interpretation that required the avoidance of absurd results and also that contracts be construed against the drafter. DirecTV argued that the presumption in favor of arbitration established by the Federal Arbitration Act meant that arbitration clauses should trump such rules of contractual interpretation, but the court disagreed. The court stated that, according to Ninth Circuit precedent, the FAA requires arbitration agreements to be placed on equal footing with other contracts. Allowing the suspension of ordinary contract rules of interpretation when arbitration agreements were involved would be placing arbitration agreements on favored footing; on equal footing, the same rules ought to apply to arbitration agreements as apply to all other contracts. Arbitration, the court emphasized, "is a matter of consent." 

This is an interesting case. Due to the consolidation of most of our forms of communication under massive umbrella corporations, a relationship with one subsidiary can be used to assert a relationship with all companies under the same corporate umbrella, as DirecTV tried to do here. This court's view feels rooted in a common-sense understanding that the arbitration agreement Revitch entered into when he decided to sign up for AT&T wireless service shouldn't also cover completely unrelated television services provided by a company that hadn't been affiliated with AT&T when Revitch entered into the contract. Only a few months ago, though, the Supreme Court reversed the Ninth Circuit for refusing to enforce an arbitration clause, re-affirming the trump-card nature of the Federal Arbitration Act over many other public policies. This case seems like another display of Ninth Circuit courts' skeptical views toward arbitration clauses -- which the Supreme Court has just reminded the Ninth Circuit it doesn't share. 

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (August 24, 2018)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 09 Jun 2018 - 08 Aug 2018

Rank	Paper	Downloads
1.	Online Contracts (2018) Eric Goldman Santa Clara University - School of Law	371
2.	Data Pollution Omri Ben-Shahar University of Chicago Law School	250
3.	The Persistence of 'Dumb' Contracts Jeffrey M. Lipshaw Suffolk University Law School	200
4.	Cash America and the Structure of Bondholder Remedies G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law	153
5.	Not-So-Smart Blockchain Contracts and Artificial Responsibility Adam J. Kolber Brooklyn Law School	131
6.	Behavioral Law and Economics - Introduction Eyal Zamir and Doron Teichman Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law	131
7.	Force Majeure and Excuses in Smart Contracts Eric Tjong Tjin Tai Tilburg Law School	120
8.	New Frontiers in Private Fiduciary Law Paul B. Miller Notre Dame Law School	109
9.	Personalizing Mandatory Rules in Contract Law Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	98
10.	Freedom, Choice, and Contracts Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School	95

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 09 Jun 2018 - 08 Aug 2018

Rank	Paper	Downloads
1.	Online Contracts (2018) Eric Goldman Santa Clara University - School of Law	371
2.	Data Pollution Omri Ben-Shahar University of Chicago Law School	250
3.	The Persistence of 'Dumb' Contracts Jeffrey M. Lipshaw Suffolk University Law School	200
4.	Force Majeure and Excuses in Smart Contracts Eric Tjong Tjin Tai Tilburg Law School	120
5.	Personalizing Mandatory Rules in Contract Law Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	98
6.	Freedom, Choice, and Contracts Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School	95
7.	The Impact of the French Doctrine of Significant Imbalance on International Business Transactions David Restrepo-Amariles, Eva Mouial Bassilana and Matteo Winkler HEC Paris - Tax & Law, Université Côte d'Azur and HEC Paris	83
8.	Purposive Contractual Interpretation Andrew Robertson The University of Melbourne - Law School	75
9.	Why the Equity of Redemption? D.P. Waddilove Harvard Law School	69
10.	Breach of Contract: A Plea for Clarity and Discipline Neil H. Andrews University of Cambridge - Faculty of Law	66

Another health insurance case where getting proper care pushes you into debt

We have blogged several times before about the confusing and often tragic state of health care and health insurance in this country. Now we have another case out of the Eighth Circuit to add to the tally, Ferrell v. Air EVAC EMS, Inc., No. 17-2554. 

Ferrell went to an emergency room with chest pain. Emergency room staff arranged for an air ambulance operated by AIR EVAC to transport him to another hospital. Ferrell's health insurance only covered a thousand dollars of this helicopter flight, so Ferrell was billed over $29,000. Ferrell then sued on behalf of a class of those similarly situated, alleging that there was no enforceable contract with the air-ambulance provider because he was not informed of the price of the helicopter flight before taking it. The problem, though, is that the federal Airline Deregulation Act (the "ADA") comes into play here, as this is about air travel. The ADA, among other things, prohibits states from regulating the cost of air transportation. 

Ferrell argued that the ADA should not apply to air-ambulance services, which are unique from other forms of air transportation. But the plain language of the ADA is broad enough to include air-ambulance services, so the court refused to exclude them from the preemption. Because Ferrell was bringing a class action, this doomed all of his claims. 

The court did find that Air EVAC could potentially bring a breach of contract claim if Ferrell refuses to pay, and that Ferrell could then assert there was no enforceable contract in defense. In that case, Air EVAC could then possibly rely on equity to recover the value of the services provided, and then the court would be able to determine that value without ADA preemption. 

Which is a pretty complicated analysis and decision. Surely this is not the most efficient way we can think of to handle health care in this country. But I suppose there is something poetic about having to lump in health care with the air transportation industry: They often are both perplexing in their treatment of their customers.  

California warranty case against Google illustrates the work the covenant of good faith and fair dealing does for consumers

A recent case out of the Northern District of California, Weeks v. Google LLC, Case No. 18-cv-00801 NC (behind paywall), involves Google's Pixel phones, which the plaintiffs allege are defective. The phones were covered by a warranty that permitted Google to either repair, refund, or replace the phones, at its discretion. When the plaintiffs complained about the defective phones, Google offered to replace the phones, but the plaintiffs weren't happy with that result: Their allegations are that their defective phones would just be getting replaced with more defective phones, until the point when the warranty expired. 

The court agreed with Google that, under the terms of the warranty, Google had every right to do exactly that: "The Court understands plaintiffs' outrage at Google's being able to replace a defective Pixel with another defective Pixel for 365 days straight. . . . It beggars reason and would appear to make hash of the spirit of the warranty. But the warranty provided a remedy, and as far as the Court can tell, Google abided by its remedy. . . . The question of whether it was valid under the express warranty to replace a defective Pixel with another defective Pixel must be answered in the affirmative based on a plain reading of the Limited Warranty."

However, all was not lost for the plaintiffs, because the court then turned to allegations that Google had breached the covenant of good faith and fair dealing, a claim which the court allowed to survive Google's motion to dismiss.  The court found that, while Google's conduct might not have been in violation of the terms of the contract, its conduct was not "expressly permitted" under the contract, nor did it meet "reasonable expectations" as to what its behavior would be. Therefore, the covenant of good faith and fair dealing acted as a backstop here against the dismissal of the breach of warranty claims. 

(The court also allowed fraudulent concealment and California consumer protection law claims to survive.)

Weekly Top Ten SSRN Contracts & Commercial Law Downloads (August 13, 2018)

Top Downloads For:

Contracts & Commercial Law eJournal

Recent Top Papers (60 days)

As of: 09 Jun 2018 - 08 Aug 2018

​

Rank	Paper	Downloads
1.	Online Contracts (2018) Eric Goldman Santa Clara University - School of Law	371
2.	Data Pollution Omri Ben-Shahar University of Chicago Law School	250
3.	The Persistence of 'Dumb' Contracts Jeffrey M. Lipshaw Suffolk University Law School	200
4.	Cash America and the Structure of Bondholder Remedies G. Mitu Gulati and Marcel Kahan Duke University School of Law and New York University School of Law	153
5.	Not-So-Smart Blockchain Contracts and Artificial Responsibility Adam J. Kolber Brooklyn Law School	131
6.	Behavioral Law and Economics - Introduction Eyal Zamir and Doron Teichman Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law	131
7.	Force Majeure and Excuses in Smart Contracts Eric Tjong Tjin Tai Tilburg Law School	120
8.	New Frontiers in Private Fiduciary Law Paul B. Miller Notre Dame Law School	109
9.	Personalizing Mandatory Rules in Contract Law Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	98
10.	Freedom, Choice, and Contracts Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School

 

Top Downloads For:

Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days)

As of: 09 Jun 2018 - 08 Aug 2018

Rank	Paper	Downloads
1.	Online Contracts (2018) Eric Goldman Santa Clara University - School of Law	371
2.	Data Pollution Omri Ben-Shahar University of Chicago Law School	250
3.	The Persistence of 'Dumb' Contracts Jeffrey M. Lipshaw Suffolk University Law School	200
4.	Force Majeure and Excuses in Smart Contracts Eric Tjong Tjin Tai Tilburg Law School	120
5.	Personalizing Mandatory Rules in Contract Law Omri Ben-Shahar and Ariel Porat University of Chicago Law School and Tel Aviv University	98
6.	Freedom, Choice, and Contracts Hanoch Dagan and Michael Heller Tel Aviv University - Buchmann Faculty of Law and Columbia University - Columbia Law School	95
7.	The Impact of the French Doctrine of Significant Imbalance on International Business Transactions David Restrepo-Amariles, Eva Mouial Bassilana and Matteo Winkler HEC Paris - Tax & Law, Université Côte d'Azur and HEC Paris	83
8.	Purposive Contractual Interpretation Andrew Robertson The University of Melbourne - Law School	75
9.	Why the Equity of Redemption? D.P. Waddilove Harvard Law School	69
10.	Breach of Contract: A Plea for Clarity and Discipline Neil H. Andrews University of Cambridge - Faculty of Law	66

 

Watch out for relevant statutes when entering into contracts (but also, read your own contract language)

A recent case out of the Eastern District of Virginia, K12 Insight LLC v. Johnston County Board of Education, Civil Action No. 1:17-cv-1397, is a cautionary tale for being aware of how statutes can affect contracts. But, also, it could have been decided just on the contractual language alone. 

In the case, the Board of Education signed an Order Form with K12 Insight that provided for an annual fee for three one-year terms. After signature, the school district realized that it could not afford the final two years of the subscription to K12's software and so attempted to terminate the subscription. K12 sued for breach of contract, alleging that the school district was obligated to maintain its subscription for the full three years. 

The court declared the Order Form contract to be void. First, there was a statute that required a pre-audit certification to be affixed to the Order Form in order to ensure that there would be funding for the school district's contract. This contract lacked the pre-audit certification (which maybe explains why there wasn't funding). The court found that the contract was also outside the scope of the superintendent's authority. 

But, finally, even if the contract had been properly made, the Board was permitted under the contract's own terms to terminate it if it didn't have sufficient funds. That was exactly what happened here, so the termination was proper.