ContractsProf Blog

Falwell v. Fallwell

Reversing a District Court decision, the Fourth Circuit held that a “gripe site” named “www.fallwell.com” does not infringe the Reverend Jerry Falwell’s trademark rights in his name. Christopher Lamparello registered the domain name and launched a site challenging the Reverend’s views on homosexuality. The site disclaims any connection to the Reverend and provides a link to the Reverend’s own website, “www.falwell.com”.

The court held that Lamparello’s site is not likely to cause confusion.  The court noted that, although Lamparello’s domain name is similar to the Reverend’s trademarks, the websites look very different. Moreover, Lamparello’s website is intended to criticize Falwell’s views, not to “steal customers.” The court determined that, because Lamparello’s site criticizes the Reverend, no one seeking the Reverend’s guidance would be misled to believe that the Reverend authorizes its message.  Likewise, the Reverend was unable to establish a cybersquatting claim because he could not demonstrate that Lamparello had a bad faith intent to profit from the similar domain name.

[Meredith R. Miller]

Spinal Tap on record labels, part 1

From: Spinal Tap: The Guitar World Interview (April 1992):

     GUITAR WORLD:  Where's Ian Faith, your manager?
     ALL:  Dead.
     NIGEL TUFNEL:  Yes, Ian died.
     GW:  How did he die?
     DAVID ST. HUBBINS:  Who cares?
     TUFNEL:  You get news like that and you go, "I'm not even going to ask how."
     ST. HUBBINS:  He was always prone to apoplexy, because he had very thin English skin and very thick alcoholic blood.
     TUFNEL: He was prone to apoplexy and  . . . what do they call it?  Embezzlement.
     DEREK SMALLS:  He took everything personally -- including our royalties.
           . . .
     SMALLS: We have a custom label, a subsidiary of MCA, named in tribute to him --
     ST. HUBBINS:  -- but mainly because it's a great name.
     SMALLS: It's called Dead Faith Records.
     ST. HUBBINS: Dead Faith Records, Tapes & CDs --
     SMALLS: And Any Other Form Of Recorded Entertainment There May Be In The Known Universe.  That's the legal name.

[Frank Snyder]

Choice of jurisdiction in international reinsurance

A recent decision by the European Court of Justice has raised concerns about whether exclusive choice of jurisdiction clauses in international reinsurance contracts will be enforceable.  Amanda Mochrie, of Bryan Cave’s London office, has an analysis of the implications for those who deal with such agreements.

[Frank Snyder]

Today in History: August 31

1422: England’s Henry V, who has just about won the Hundred Years War and had himself named heir to the French throne, dies suddenly at age 34, undoing pretty much the entire plan.

1897: Thomas Edison received the patent for the Kinetoscope, the forerunner of the modern motion picture camera.

1931: The last of 4.3 million Ford Model A automobiles runs off the assembly line.

1973: Director John Ford dies at Palm Desert, California.  He won four Academy Awards for Best Director, but none for a Western.

1980: The Polish Solidarnosc (“Solidarity”) labor union is formed.

2002: Lionel Hampton, the only jazz musician to have a university school of music named for him (at the University of Idaho) dies at 94.

2004: The DVD of Mel Gibson’s film The Passion of the Christ sells 4.1 million copies in its first day of release.

Welcome to the Blogosphere

A hearty welcome to the newest member of the Law Professor Blog Network, Family Law Prof Blog, edited by Barbara Glesner Fines (Missouri-Kansas City), Robert E. Oliphant (William Mitchell), and Nancy Ver Steegh (William Mitchell).

Today’s postings include an interesting Rhode Island case that involves the issue of whether an unambiguous settlement contract entered into in a divorce proceeding can be reformed by a court.

Katrina may be most costly hurricane in history

It's too early to tell, but analysts estimate that Katrina could inflict the most damage of any hurricane on record.  Estimates currently range from $9 billion to $26 billion.  By comparison, average annual insurance losses in Louisiana are $196 million, whereas in Florida they are $1.42 billion.  To put these numbers in perspective, according to the Insurance Information Instsitute, the following are the costliest catastrophes in U.S. history:

Event                                     Date insured                       (2004 dollars) 

Hurricane Andrew                    August 1992                       $20.9 billion 

9-11 attacks                           September 2001                  $20.1 billion* 

Northridge, Calif. earthquake    January 1994                       $15.9 billion 

Hurricane Charley                    August 2004                       $7.5 billion 

Hurricane Ivan                         September 2004                  $7.1 billion 

Hurricane Hugo                       September 1989                  $6.4 billion 

Hurricane Frances                   September 2004                  $4.6 billion 

Hurricane Jeanne                    September 2004                  $3.7 billion 

Hurricane Georges                  September 1998                  $3.4 billion 

Tropical Storm Allison             June 2001                           $3.1 billion

*Property only. Insured losses totaled $31.7 billion including liability and life insurance claims.

[Wayne Barnes]

News in Brief

Model Tyson Beckford has sued Sean “Diddy” Holmes for $5 million, claiming that Holmes continued to use Beckford’s image in selling his Sean John clothing line after Beckford’s contract expired.

The U.S. government is expected to issue some $250 billion in IT contracts during FY2006, according to a new report.

An arbitrator has ruled that Metrologic Instruments must pay $12 million to settle a license dispute with its rival bar-code reading company, Symbol Technologies.

Workers at Michigan-based Farmer Jack grocery stores have rejected a contract their union said was necessary to allow the chain to be acquired and avoid being shut down.

The United Steelworkers, who narrowly lost a similar vote on a contract recommended by union leadership, have reconsidered a strike at a West Virginia mill and will put the contract up for a second vote, as the state's governor has requested.

Boeing’s latest offer to its machinists, meanwhile, seems to have crashed and burned on takeoff.

A company that claims the Eastern Pequot tribe breached a partnership contract says it will take an appeal to the Connecticut Supreme Court.

General Dynamics, which makes a good deal of money making weapons, has won a $30 million contract to take them apart again and “demilitarize” them.

Indiana is in negotiations with a private company on a renewable 10-year deal to manage its 2,416-bed New Castle Correctional Facility, a minimum-to-medium security facility.

A demoted Army procurement official says she’ll sue, claiming the job action was in  retaliation for exposing irregularities in contracts with a Halliburton subsidiary.

In the Third Year, They Bore You

Is the third year of law school necessary or useful?  Some critics of U.S. legal education say that, in its present form, third year is neither.  These critics cite “graduating students’ academic disengagement, poor class attendance and astronomical levels of debt.”  Alternative suggestions are abolishing the third year, making the third year optional or creating a curriculum that uses the third year as a time for clinical or specialized study.

On the other side, it is argued that shortening legal education to two years “will invalidate the prestige of the degree and produce attorneys who are not yet ready to practice law.”

[Meredith R. Miller]

Happy Anniversary, Mr. Jones

Forty years ago today, August 30, 1965, Bob Dylan released the album Highway 61 Revisited.  It went on to peak at number 3 on the Billboard album charts, but it will finish fourth on Rolling Stone’s list of the top albums of all time.  From Ballad of a Thin Man:

You've been with the professors
And they've all liked your looks
With great lawyers you have
Discussed lepers and crooks
You've been through all of
F. Scott Fitzgerald's books
You're very well read
It's well known

Because something is happening here
But you don't know what it is
Do you, Mister Jones?

[Frank Snyder]

New consumer protection rules in Victoria

New consumer protection regulations in Victoria, Australia, should make sellers more careful in the use of “asterisks and disclaimers” in their advertising, and in putting conditions on their offers in small print.  That’s the conclusion of Eleanor Scacco and Verity Shepherdson of Melbourne’s Freehills, in a recent client advisory, Now There are Even More Reasons to Trade Fair.

[Frank Snyder]

Today in History: August 30

1850: King Kamehameha III proclaims Honolulu as the capital of the Kingdom of Hawaii.  His father had conquered Oahu in 1804.

1879: Former Confederate General John Bell Hood, who has gone into the insurance business in New Orleans after the war, sees his business wiped out by a yellow fever epidemic, which also kills him and his wife and leaves ten destitute orphans.

1918: An assassin wounds Russian Bolshevik leader Vladimir Lenin.  Ten thousand suspects will shortly be executed and another 70,000 sent to Siberia.

1919: Country Music queen Muriel Deason (a/k/a Kitty Wells) is born at Nashville, Tennessee.  In 1952 she’ll record the first feminist country song, It Wasn’t God Who Made Honky Tonk Angels for Decca, which will become the first number 1 country single by a woman.

1930: Warren Edward Buffett, the world’s second-richest man, is born, the son of a congressman, at Omaha, Nebraska.

1940: Neil Swinton discovers there are termites in the house that was sold him by the Whitinsville Savings Bank.  Whitinsville will merge in 1988 with another to form UniBank.

1962: Nippon Aircraft Manufacturing Co. tests its new aircraft, the YS-11, the only successful commercial aircraft ever produced in Japan.

1967: The U.S. Senate confirms Thurgood Marshall (Howard Law 1933) as an Associate Justice of the Supreme Court.

1993: NBC Late Night star David Letterman jumps to CBS for The Late Show.  NBC refuses to let the new show have the rights to the “Viewer Mail” segment, so the new show calls it “CBS Mailbag.”

2002: The last privately owned subway in America, the 0.7 mile-long Tandy Center Subway in Fort Worth, Texas, closes its doors.  It had been built by the Leonards family department store in 1963 to connect the store to parking.

Weekend News Roundup

The agent who says he sold the idea of Sex and the City to HBO is suing author Candace Bushnell, who created it, claiming an agreement to give him 10 percent of the profits she earned.

The financially troubled Eurotunnel is being sued by its main sales agents, who claim its conspired to get confidential information to help it break its contracts with them.

A “politically connected” firm whose contract was terminated by the state of Illinois for “defraud[ing] the state out of tens of thousands of dollars” is suing to have its contract reinstated.

Boeing has unveiled an “improved” offer to its machinists; the deal does not include a general pay raise but does include some cash payments to workers.

In Pakistan there’s debate over construction of a thermal power station, with some pushing for a sole-source agreement with a Japanese firm (backed by a Japanese government loan) and others calling for an international competition going to the low bidder.

Striking faculty at Youngstown State University have reached a tentative agreement on a new contract, allowing classes to start today.

America’s Hunt Oil Company has landed an oil exploration contract for about 9.5 million acres in Namibia’s Luderitz Basin offshore area.

The management contract for D.C.’s proposed new $280 million baseball stadium has been awarded to a Maryland firm.

Martin visits at UDC

The University of the District of Columbia’s Clarke School of Law has a contracts visitor this year, Charles H. Martin, who joins the school as a visiting associate professor of law.  UDC got full ABA accreditation on August 8.  (Belated congratulations!)

Martin is an internationalist as well as an experienced practitioner.  He earned a B.A. at Harvard, a J.D. at UC-Berkeley, and an M.B.A. from Columbia.  He practiced with Hogan & Hartson, the U.S. Department of the Navy, the D.C. Office of Corporation Counsel, and the Florida Office of Legal Affairs, and taught at Villanova and Florida State, before joining Sallie Mae, where he worked for 14 years.  In that job he was responsible, among other things,  for negotiating contracts for taxable and tax-exempt funding for colleges and universities.

He’s been a Visiting Faculty Fellow of the Civic Education Project, teaching law in Baku, Azerbaijan, and taught graduate and undergraduate students at the Open Society Institute’s Network Scholarships Pre-Academic Summer Program in Istanbul, Turkey.  In addition to Contracts, he’ll be teaching International Business Transactions and Commercial Law.

[Frank Snyder]

Lessons for E-Mail Modification of Contracts

The First Circuit's recent opinion in Campbell v. General Dynamics Government Systems Corp. illustrates the perils of attempting to use e-mail to amend an existing contract.  Arising in the employment context, General Dynamics sent a mass e-mail to all of its employees, announcing a new mandatory arbitration policy.  The new policy was to be effective beginning the following day.  When Campbell, a General Dynamics employee, filed an ADA lawsuit against his employer, General Dynamics moved to dismiss based on the arbitration policy.  The district court denied the motion, and the First Circuit affirmed, holding that the e-mail had not effectively amended the employment contract by adding the arbitration policy.

The First Circuit identified several problems with General Dynamics' attempted use of e-mail to amend the contract.  First, General Dynamics did not require any response to the mass e-mail announcing the policy, instead indicating that "no response was required."  The First Circuit took issue with this methodology:

One way that General Dynamics could have set this particular communication apart from the crowd would have been to require a response to the e-mail. Instead, the company opted for a 'no response required' format. Within the context of this particular employment relationship, in which significant personnel matters historically had been transacted via signed documents, this choice disguised the import of the communication. Signing an acknowledgment or, in a more modern context, clicking a box on a computer screen, are acts associated with entering into contracts. Requiring an affirmative response of that sort would have signaled that the Policy was contractual in nature.

This language, of course, is consistent with the general "clickwrap" line of cases which hold that clicking assent with a mouse is a valid means of manifesting contractual assent to a bargain.  The court also held, however, that the substantive content of the e-mail was lacking in contractual formality as well:

To be blunt, the e-mail announcement undersold the significance of the Policy and omitted the critical fact that it contained a mandatory arbitration agreement. The result was that a reasonable employee could read the e-mail announcement and conclude that the Policy presented an optional alternative to litigation rather than a mandatory replacement for it.

[Wayne Barnes]

Weekly Top 10

Following are the top ten most-downloaded papers from the SSRN Journal of Contract and Commercial Law for the 60 days ending August 28, 2005.  Last week's position in parentheses; t = tied.

1 (1) Understanding the Current Wave of Procurement Reform - Devolution of the Contracting Function, Christopher R. Yukins (Geo. Washington)

2 (3) On Collaboration, Organizations, and Conciliation in the General Theory of Contract, Ethan J. Leib (UC-Hastings)

3 (4) Decisionmaking & the Limits of Disclosure: The Problem of Predatory Lending, Lauren E. Willis (Loyola-L.A.)

4 (5) The Posthumous Life of the Postal Rule Requiem and Revival of Adams v. Lindsell, Peter Goodrich (Cardozo)

5 (6t)  Friends in High Places: Amity and Agreement in Alsatia, Peter Goodrich (Cardozo)

6 (6t) On-line Boilerplate: Would Mandatory Website Disclosure of E-standard Terms Backfire?, Robert A. Hillman (Cornell)

7 (8) The Limits of Lawyering: Legal Opinions in Structured Finance, Steven L. Schwarcz (Duke)

8 (9t) New Basics: 12 Principles for Fair Commerce in Mass-Market Software and Other Digital Products, Jean Braucher (Arizona)

9 (-) Is Forum-Shopping Corrupting America's Bankruptcy Courts?, Todd J. Zywicki (Geo. Mason)

10 (9t) Evolving Business and Social Norms and Interpretation Rules: The Need for a Dynamic Approach to Contract Disputes, Nancy Kim (Cal Western)

[Frank Snyder]

Authors to Auction Character Names

To support the First Amendment Project, 16 U.S. authors are each auctioning the right to name a character (or place) in their next book. The authors include Stephen King, John Grisham, Amy Tan, Michael Chabon, Dave Eggers, Jonathan Lethem, Andrew Sean Greer and Dorothy Allison. The auctions begin on ebay on September 1, where the complete (and amusing) list of the authors' offerings is available.

Stephen King is offering for auction:

One (and only one) character name in a novel called CELL, which is now in work and which will appear in either 2006 or 2007. Buyer should be aware that CELL is a violent piece of work, which comes complete with zombies set in motion by bad cell phone signals that destroy the human brain. Like cheap whiskey, it's very nasty and extremely satisfying. Character can be male or female, but a buyer who wants to die must in this case be female. In any case, I'll require physical description of auction winner, including any nickname (can be made up, I don't give a rip).

Jonathan Lethem is offering for auction:

I need the name of a Columbia University professor for a comic book I'm writing for Marvel. It can be your name or the name of a friend -- but if it's a friend, I need to hear from them with their permission.

John Grisham is offering for auction:

Your name or a name of your choosing will appear as a fictional character in my next novel.  The character will be portrayed in a good light.  My next novel should be published either in 2007 or 2008.   The name you choose cannot be that of a real person other than yourself.

[Meredith R. Miller]

Today in History: August 29

1632: English political economist and philosopher John Locke is born in at Wrington in Somerset.

1769: Edmond Hoyle, a man who gave up training as a barrister to become a whist tutor and authoritative author on games, dies at age 97.  In 1979 he’ll be a charter inductee to the Poker Hall of Fame at Binion’s Horseshoe Casino in Las Vegas.

1786: Angry farmers, calling for lower taxes, higher inflation, and elected judges, rebel in western Massachusetts under the leadership of a former Revolutionary War soldier, Daniel Shays.

1885: Gottlieb Daimler gets a patent for the world’s first motorcycle.

1898: Frank Seiberling founds the Goodyear Tire & Rubber Co., with 13 employees who make bicycle and carriage tires, rubber pads for horseshoes, and poker chips.

1911: The last member of the Yahi tribe -- and the last Native American to have lived is life completely outside the European-American environment -- comes down out of the hills near Oroville, California.  He’s taken into custody, and will spend the rest of his life living at the University of California Museum of Anthropology.

1952: John Cage, the man who will prove that a “feeling for harmony” is not required to be successful as a serious composer, debuts his famous 4' 33" at Woodstock, New York.

1994: Viacom, Inc., announces that it will buy video rental giant Blockbuster Entertainment for $8 billion.

Foreseeable damages: Delay in envirnomental clean-up

A landowner whose lease contains a provision that the tenant is responsible for removing oil tanks and fixing any environmental problems can claim damages for the entire time the property is tied up before the government gets around to issuing a letter approving the clean-up, according to a recent decision by the U.S. Court of Appeals for the Third Circuit.  Bonni Kaufman of Holland & Knight’s D.C. office has a rundown of the case and the implications.

[Frank Snyder]

Help Wanted

Seattle University School of Law is seeking to hire a tenure-track professor to teach in the commercial law field.  They have particular interest in:  UCC sales and secured transactions; bankruptcy; and payment systems.  "International commercial law would also be a desirable complement to the American commercial law courses taught."  The school will consider both entry-level and experienced candidates.

For further information and a full statement of University hiring policies, interested parties should contact the Chair of the Appointments Committee, Professor Lily Kahng.  You can e-mail her here, or write by mail to:
Seattle University School of Law
901 12th Avenue
Seattle WA 98122

[Frank Snyder]

Today in History: August 28

1521: Belgrade, the White City, is captured and burned by Suleiman the Magnificent and the Ottoman Turks.

1565: On the feast day of St. Augustine of Hippo, Spanish admiral Pedro Menéndez de Avilés founds a settlement on an outlet of the Matanzas River in Florida.  Today St. Augustine is the second-oldest city in the U.S., after San Juan, Puerto Rico.

1609: Henry Hudson makes the first recorded visit to what will become known as Delaware Bay.

1830: The 13-mile-long Baltimore & Ohio Railroad begins the first steam railroad passenger and freight service in the U.S.

1898: Caleb Bradham, a druggist in New Bern, North Carolina, changes the name of his “Brad’s Drink” beverage to “Pepsi-Cola.”  He picks “Pepsi” because the drink is first sold as a remedy for dyspepsia.

1900: Philosopher Henry Sidgwick (The Methods of Ethics) dies of cancer at age 62.

1953: Nippon Television broadcasts Japan’s first TV commercial.

1963: On the steps of the Lincoln Memorial in Washington, D.C., Rev. Martin Luther King, Jr., delivers his I Have a Dream speech.