ContractsProf Blog

Reminder: January 31 Deadline for KCON XII Proposals Looms Tuesday

(H/T Dov Waisman. Info reposted from January 19 due to the conference proposal deadline--which is this coming Tuesday! - MEB)

Dear Colleagues,

Happy New Year!  The 12^th Annual International Conference on Contracts (KCON XII) is scheduled to begin on Friday, February 24th.  Here in Los Angeles, we are excitedly preparing for the conference and wanted to write with a couple of reminders.

First, we are still accepting proposals for presentations and panels.  The final deadline for submitting a proposal is Tuesday, January 31st.  We have received many terrific proposals so far and have only a small number of slots left.  So if you wish to submit, please do so at your earliest convenience, and in all events by the 31st.  As a reminder, in addition to traditional panel presentations, this year we are inviting short, ten-minute talks on a number of special topics, all of which are listed in the Call for Participation.  [Those CFP topics are

w Celebrating Deborah Post (the receiver of the lifetime achievement award)

w Teaching Tricks for Tough Topics

w Getting Better With Age: The History of Specific Contract Doctrines

w Hot from the Oven: Recent Cases or Legislation of Interest

w Outrageous Contracts

w Ignored Issues in Contract Law

 - Ed.]

If you have already submitted a proposal (thank you!), be sure to register for the conference and book your hotel room.

Also, if you have not done so already, please be sure to register for the conference and book reservations at the conference hotel as soon as possible. Conference registration and hotel information is available here. You should book your room at the Omni Los Angeles Hotel while discounted rooms in the conference block are still available.  Only a limited number of discounted rooms are available, so act fast!  The final deadline for booking a room at the Omni at the discounted rate is Sunday, February 12, but we expect all discounted rooms to be booked well before then.

That’s it for now.  We’ll be in touch with more details early next month.  If you have any questions or concerns about KCON XII, please contact Danielle Hart, Hila Keren, and/or myself at [email protected].  We look forward to seeing everyone in L.A. on February 24th and 25th!

Best,

Dov Waisman

Associate Professor of Law

Southwestern Law School

This Is a Case About Copyright, Forum Selection Clauses, and Porn

Here's a case about porn. 

I thought all of us could use a brief break from the news, and porn always raises such interesting legal issues. This recent case out of the District of Arizona, AMA Multimedia LLC v. Sagan Limited, No. CV-16-01269-PHX-DGC, deals with the application of a forum selection clause to a copyright infringement case. You can read the complaint from the case here, and a couple of earlier orders from the case here and here. (Thanks to Eric Goldman for passing along the order link!)

The plaintiff, AMA, is a producer of pornographic material who entered into a contract with Porn.com, owned and operated by defendants (nice straightforward--and I would imagine valuable--URL there). Under the contract, AMA granted a license for the use of certain content. AMA became aware that Porn.com was displaying many copyrighted works which AMA had not granted a license to and sued for copyright infringement. The defendants responded that this lawsuit is governed by the contract between them, which has a forum selection clause requiring legal actions "arising out of or relating to" the contract to take place in Barbados. 

AMA's main argument was that the forum selection clause didn't apply because this is a case about copyright infringement, not about any issues arising from the contract. However, the court pointed out that the contract was entirely about the proper use of copyrighted works. AMA's copyright infringement case was really a case about the defendants using works in a way that violated the contract between them. The court would necessarily have to interpret the contract to decide if the defendants' behavior was in fact infringing. Therefore, the forum selection clause applied.

AMA next tried to argue that the forum selection clause should be found unenforceable because it would force AMA to litigate in a jurisdiction where discovery would be difficult and costly, and was therefore designed to discourage AMA from bringing suit at all. However, the court found that AMA provided no evidence for its assertions regarding litigation in Barbados being difficult and expensive, and that the mere inconvenience of the jurisdiction was not enough to negate the forum selection clause. 

Weekly Top Ten SSRN Contracts Downloads (January 26, 2017)

SSRN Top Downloads For
Contracts & Commercial Law eJournal

1	655	Risk and Anxiety: A Theory of Data Breach Harms Daniel J. Solove and Danielle Keats Citron George Washington University Law School and University of Maryland Francis King Carey School of Law
2	272	Empirical Findings on International Arbitration: An Overview Christopher R. Drahozal University of Kansas School of Law
3	185	Drafting for Dispute Resolution John M. Newman University of Memphis - Cecil C. Humphreys School of Law
4	157	The Corporation as Courthouse Rory Van Loo Boston University School of Law
5	155	The Commercial Law of Bitcoin and Blocktrain Transactions Stephen M. McJohn and Ian McJohn Suffolk University Law School and Independent
6	143	Remedies Ariel Porat Tel Aviv University
7	143	Introduction to Contract, Status, and Fiduciary Law Paul B. Miller and Andrew S. Gold McGill University Faculty of Law and DePaul University College of Law
8	139	Contractual Estoppel and the Misrepresentation Act 1967 Richard Hooley University of Cambridge - Faculty of Law
9	108	The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions Jan H. Hendrik Dalhuisen King's College London
10	106	Excessive Contractual Penalties in Football Despina Mavromati Court of Arbitration for Sport

 

SSRN Top Downloads For
Law & Society: Private Law - Contracts eJournal

Rank	Downloads	Paper Title
1	185	Drafting for Dispute Resolution John M. Newman University of Memphis - Cecil C. Humphreys School of Law
2	157	The Corporation as Courthouse Rory Van Loo Boston University School of Law
3	143	Remedies Ariel Porat Tel Aviv University
4	143	Introduction to Contract, Status, and Fiduciary Law Paul B. Miller and Andrew S. Gold McGill University Faculty of Law and DePaul University College of Law
5	139	Contractual Estoppel and the Misrepresentation Act 1967 Richard Hooley University of Cambridge - Faculty of Law
6	108	The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions Jan H. Hendrik Dalhuisen King's College London
7	106	Excessive Contractual Penalties in Football Despina Mavromati Court of Arbitration for Sport
8	91	Failures in Law Making: The Case of Arbitration Law in India Badrinath Srinivasan Independent
9	68	The Hague Choice of Law Principles, CISG and PICC: A Hard Look at a Choice of Soft Law Brooke Adele Marshall Max Planck Institute for Comparative and International Private Law
10	66	The Limits of Interpretation in the Law of Contract Andrew Robertson Melbourne Law School

 

No Substitution of Arbitrators by Courts when One Institution Becomes Legally Unavailable

There is split authority on the issue of whether courts can appoint a substitute for an arbitral institution that becomes unavailable after the execution of an arbitration agreement. In the Second Circuit, no such substitution is possible.

In the case, Deborah Moss applied for three payday loans through SFS, an online lender. SFS relied on First Premier Bank serving as the “middleman” in order to debit Moss’ account. The loan application documents with SPS included an arbitration clause listing the National Arbitration Forum (“NAF”) as the arbitral institution.

After receiving the three loans, Moss filed a class action suit against First Premier Bank and Bay Cities Bank alleging violations under the RICO Act by “facilitate[ing] high-interest payday loans that have been outlawed in some states.” The banks moved to compel arbitration arguing they were entitled to enforce the terms that Moss agreed to when she applied for the loans. The district court agreed and granted the motion.

Moss then sent a letter to the National Arbitration Forum (“NAF”) indicating her intent to proceed with arbitration. NAF refused the case stating “it was unable to accept Moss’s dispute pursuant to a consent judgment” it had entered into with the Minnesota Attorney General pursuant to which NAF would no longer accept consumer arbitrations such as Moss’s.

Moss then tried to vacate the district court’s motion to compel arbitration, arguing that she could not arbitrate her claims at all since NAF declined her case. The district court granted this motion, finding that the court could not appoint a substitute arbitrator because the parties had specifically designated NAF and because there was no “lapse in time in the naming of the arbitrator or … some other mechanical breakdown in the arbitrator selection process” under Section 5 of the FAA. The banks appealed, seeking to have the appellate court compel Moss to arbitrate before a different arbitrator.

The Second Circuit found that because the parties had designated an “exclusive arbitral forum, the district court cannot circumvent the intent of the parties nor can it appoint a substitute arbitrator.” Therefore, the Second Circuit held that the district court property declined to compel Moss to arbitrate in a “forum to which she did not agree.”

The case is Moss v. First Premier Bank, 15-2513 (2d Cir. 2016).

Equitable Estoppel Saves Statute of Frauds Issue in an Agreement Between Father and Daughter

This is a point I teach in class and I was happy to see it illustrated in a recent case out of Connecticut, Fitzgerald Management, LLC v. Fitzgerald, FBTCV166056848S (behind paywall). In the case, the defendant alleged that her father had promised multiple times to give her title to her residence if she took care of her grandmother and maintained other properties. Unfortunately, this alleged agreement between the defendant and her father was entirely oral and never committed to paper, in contravention of the statute of frauds admonition that contracts regarding real estate be in writing. 

Whenever I teach equitable estoppel in connection with the statute of frauds, I note that one of the situations where you see it come up most often is in family situations, where people might not think to enter into formal written contracts or, if they think about it, might be reluctant to insist upon it because it might be perceived as implying a lack of trust. This situation, about an agreement between a father and a daughter, fits that mold. The daughter alleged that, in reliance on her father's promise, she performed substantial improvements on the property at issue. The court found that this reliance on the daughter's part was reasonable. The daughter took care of her grandmother and maintained the requested properties, thus fulfilling her part of the bargain. At this stage of the litigation, the court found that this could entitle the daughter to equitable estoppel preventing the invocation of the statute of frauds against the agreement with her father. 

Misunderstanding a Question Won't Save You If the Question Wasn't Ambiguous

A recent case out of the Middle District of Georgia, Great Lakes Insurance SE v. Queen, Case No. 3:15-CV-123 (CDL) (behind paywall), serves as an example of a case where the insured claimed the insurance policy at issue was ambiguous and the court disagreed.

In the case, Queen, the insured, owned a home with several outbuildings. While Queen's home and outbuildings were on an eight-acre parcel of land, Queen answered "no" to the question on the Great Lakes homeowners' insurance policy that asked if the property to be insured was on more than five acres. When one of Queen's outbuildings was destroyed in a fire, he sought to recover under the insurance policy. Great Lakes, however, upon learning that Queen's parcel of land encompassed eight acres, denied coverage, alleging that it would not have issued the policy had Queen not misrepresented the size of the parcel of the land. 

Queen argued that he had not made a misrepresentation on the insurance application. He argued that, while the parcel of land he owned totaled eight acres, it had been divided into four tracts, each of which was less than five acres. Queen's home and outbuildings were located on a particular "tract" of the larger parcel that was smaller than five acres, and so Queen had answered "no" to the question. 

The court conceded that Queen may have misunderstood the question on the insurance policy, but asserted that the question was nevertheless not ambiguous. The question asked if "the property" to be insured was situated on more than five acres. In this case, Queen provided an address as "the property" to be insured, and the amount of property associated with that address was eight acres, as even Queen conceded. Queen may have subjectively intended only to insure a particular tract of land inside that parcel, and may have had no intention to mislead Great Lakes, but that didn't change the court's conclusion that it was unambiguous--and in fact undisputed--that the property to be insured--the address provided to Great Lakes by Queen--was situated on more than five acres.

Queen next tried to argue that his misrepresentation was not material. Great Lakes submitted an affidavit that it would not have insured the property had it known that it was situated on more than five acres. The court questioned the business justification for this, asserting that the affidavit provided no explanation for how Great Lakes's risk would have increased, given that Queen's house and outbuildings sat on less than five acres. However, Queen provided no evidence rebutting Great Lakes's affidavit. Without any contrary evidence, the court had no choice but to accept Great Lakes's affidavit at face value and conclude that there was no genuine fact dispute on the question of the materiality of Queen's misrepresentation.

In the end, the court found that Great Lakes was entitled to rescind the insurance policy and granted Great Lakes summary judgment. You get the feeling that the court felt badly for Queen but also felt that it could not reach any other conclusion. 

Apollo 11 Moon Rock Bag Stolen, Sold to BFPV at Auction, Now Government Wants it Back

In times with enough serious and often depressing news, I thought I would bring you this little neat story (with profuse apologies to everyone, including my co-bloggers, for my virtual absence for a few months):

An Apollo 11 bag used to protect moon rocks samples was stolen by Max Ary, a former curator convicted in 2006 of stealing and selling space artifacts that belonged to the Cosmosphere space museum in Hutchinson, Kansas. Mr. Ary subsequently served two years in prison and was sentenced to pay more than $132,000 in restitution. Space artifacts found in his home, including the Apollo 11 bag, were forfeited to meet that debt. However, the Apollo 11 bag was incorrectly identified as Ary's and subsequently sold to Nancy Carlson for $995 in February 2015 at a Texas auction held on behalf of the U.S. Marshals Service.

The government petitioned the court to reverse the sale and return the lunar sample bag to NASA, alleging that due to a mix up in inventory lists and item numbers, the lunar sample bag that was the subject of the April 2014 forfeiture order was mistakenly thought to be a different bag and that no one, including the United States, realized at the time of forfeiture that this bag was used on Apollo 11. The government cited cases where federal courts vacated or amended forfeiture orders, including where inadequate notice was provided to a property owner, as a justification for the bag's return to NASA.

Judge J. Thomas Marten ruled in the U.S. District Court for Kansas that Ms. Carlsen obtained the title to the historic artifact as "a good faith purchaser, in a sale conducted according to law." With her title to the bag now ordered by the Kansas court, Carlson needs to file a motion in the U.S. District Court for Texas for its return from NASA's Johnson Space Center in Houston. However, “[t]he importance and desirability of the [lunar sample] bag stems solely and directly from the efforts of the men and women of NASA, whose amazing technical achievements, skill and courage in landing astronauts on the moon and returning them safely [to Earth] have not been replicated in the almost half a century since the Apollo 11 landing," the judge wrote … Perhaps that fact, when reconsidered by the parties, will allow them to amicably resolve the dispute in a way that recognizes both of their legitimate interests," J. Marten wrote.

H/t to Professor Miriam Cherry for bringing this story to my attention.

The Defendant's "Brain Fog" May Have Made Him Incompetent to Enter into a Contract

I don't come across a lot of cases revolving around competence, but here's a recent one out of New York, Gray v. Jung, No. 62996 (behind paywall). The case, at the summary judgment stage, revolves around plaintiff's seeking of specific performance on a real estate contract. The court found that the plaintiff met his burden regarding the appropriateness of specific performance as a remedy, but the defendant raised sufficient evidence of lack of competency to defeat the plaintiff's motion. The defendant submitted "a considerable amount of medical records" indicating that he suffered from "brain fog" that prevented him from fully understanding the real estate contract at issue. Plaintiff had his own evidence that the defendant was indeed competent to enter into the contract and that his subsequent regret at entering into the contract shouldn't render it unenforceable. However, the court found that there was a genuine dispute of material fact on the question of the defendant's competence that defeated summary judgment. 

KCON XII Reminder: Conference Proposals Due by January 31

H/T Dov Waisman from the Contracts Prof Listserv for this post:

Dear Colleagues,

Happy New Year!  The 12^th Annual International Conference on Contracts (KCON XII) is scheduled to begin on Friday, February 24th.  Here in Los Angeles, we are excitedly preparing for the conference and wanted to write with a couple of reminders.

First, we are still accepting proposals for presentations and panels.  The final deadline for submitting a proposal is Tuesday, January 31st.  We have received many terrific proposals so far and have only a small number of slots left.  So if you wish to submit, please do so at your earliest convenience, and in all events by the 31st.  As a reminder, in addition to traditional panel presentations, this year we are inviting short, ten-minute talks on a number of special topics, all of which are listed in the attached Call for Participation.  If you have already submitted a proposal (thank you!), be sure to register for the conference and book your hotel room.

Also, if you have not done so already, please be sure to register for the conference and book reservations at the conference hotel as soon as possible. Conference registration and hotel information is available here. You should book your room at the Omni Los Angeles Hotel while discounted rooms in the conference block are still available.  Only a limited number of discounted rooms are available, so act fast!  The final deadline for booking a room at the Omni at the discounted rate is Sunday, February 12, but we expect all discounted rooms to be booked well before then.

That’s it for now.  We’ll be in touch with more details early next month.  If you have any questions or concerns about KCON XII, please contact Danielle Hart, Hila Keren, and/or myself at [email protected].  We look forward to seeing everyone in L.A. on February 24th and 25th!

Best,

Dov Waisman

Associate Professor of Law

Southwestern Law School

Weekly Top Ten SSRN Contracts Downloads (January 19, 2017)

SSRN Top Downloads For
Contracts & Commercial Law eJournal

Rank	Downloads	Paper Title
1	586	Risk and Anxiety: A Theory of Data Breach Harms Daniel J. Solove and Danielle Keats Citron George Washington University Law School and University of Maryland Francis King Carey School of Law
2	246	Empirical Findings on International Arbitration: An Overview Christopher R. Drahozal University of Kansas School of Law
3	175	Drafting for Dispute Resolution John M. Newman University of Memphis - Cecil C. Humphreys School of Law
4	146	The Commercial Law of Bitcoin and Blocktrain Transactions Stephen M. McJohn and Ian McJohn Suffolk University Law School and Independent
5	135	Introduction to Contract, Status, and Fiduciary Law Paul B. Miller and Andrew S. Gold McGill University Faculty of Law and DePaul University College of Law
6	130	The Corporation as Courthouse Rory Van Loo Boston University School of Law
7	130	Contractual Estoppel and the Misrepresentation Act 1967 Richard Hooley University of Cambridge - Faculty of Law
8	112	Remedies Ariel Porat Tel Aviv University
9	106	The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions Jan H. Hendrik Dalhuisen King's College London
10	100	Excessive Contractual Penalties in Football Despina Mavromati Court of Arbitration for Sport

 

SSRN Top Downloads For
Law & Society: Private Law - Contracts eJournal

Rank	Downloads	Paper Title
1	175	Drafting for Dispute Resolution John M. Newman University of Memphis - Cecil C. Humphreys School of Law
2	135	Introduction to Contract, Status, and Fiduciary Law Paul B. Miller and Andrew S. Gold McGill University Faculty of Law and DePaul University College of Law
3	130	The Corporation as Courthouse Rory Van Loo Boston University School of Law
4	130	Contractual Estoppel and the Misrepresentation Act 1967 Richard Hooley University of Cambridge - Faculty of Law
5	112	Remedies Ariel Porat Tel Aviv University
6	106	The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions Jan H. Hendrik Dalhuisen King's College London
7	100	Excessive Contractual Penalties in Football Despina Mavromati Court of Arbitration for Sport
8	86	Failures in Law Making: The Case of Arbitration Law in India Badrinath Srinivasan Independent
9	58	The Limits of Interpretation in the Law of Contract Andrew Robertson Melbourne Law School
10	66	The Hague Choice of Law Principles, CISG and PICC: A Hard Look at a Choice of Soft Law Brooke Adele Marshall Max Planck Institute for Comparative and International Private Law

Harvard Law School Postdoctoral Fellowship Opportunities

Postdoctoral Fellowship in Private Law 

Overview 

The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies.Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship. 

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.

Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property 

Overview 

The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship. 

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events, and blogging.

 

Upcoming Conference on Assessment

“Compliance with ABA Standard 314: Formative Assessment in Large Classes” is a one-day conference sponsored by the Institute for Law Teaching and Learning. The conference is for law teachers and administrators who want to learn how to design, implement, and evaluate formative assessment plans. The conference will be interactive workshops during which attendees will learn about formative assessment techniques from games to crafting multiple choice questions to team-based learning. Participants will also learn ways to coordinate assessment across the curriculum. The conference workshop sessions will take place on Saturday, March 25, 2017, at Emory University School of Law. Conference Content: Sessions will address the following topics: Why Assess: Empirical Data on How it Helps Students Learn Games as Formative Assessments in the Classroom Formative Assessment with Team-Based Learning Creating Multiple Choice Questions and Ways to Using Them as Formative Assessment Coordinating Formative Assessment Across the Curriculum.

More information can be found here: http://lawteaching.org/conferences/

Here is the link to register: https://emorylaw.wufoo.com/forms/institute-for-law-teaching-learning-conference/

Reminder: Contracts Mean What They Say. And External Grants Aren't Non-Tenure Track Positions

Frequently when I teach Contracts I find myself telling the students to just put in the contract exactly what they want it to say, because so often I feel like cases revolve around parties saying, "I know what it said, but I thought that meant something else entirely." Although, often, of course, these might be ex post facto proclamations when a situation turns out to not be exactly what the party thought it was going to be. 

A recent case out of Maryland, Norman v. Morgan State University, No. 1926 September Term 2015 (behind paywall), is another illustration of a party claiming that a contract means what a court finds it does not mean. In that case, Norman had sued Morgan State after he was denied tenure there. The parties entered into a settlement agreement under which Norman was permitted to apply for "any non-tenure track position at [Morgan State] for which he was qualified." The current lawsuit is the result of Norman's allegation that Morgan State prevented him from applying for an external research grant that that would have funded a future position at the school for him. 

The court, however, found that the contract clearly stated that Norman could apply for "any non-tenure track position." It said nothing about external grants and external grants are not non-tenure track positions. Therefore the settlement agreement did not require Morgan State to permit Norman to seek the external grant. Norman tried to argue that he would not have agreed to the settlement agreement had he known it allowed Morgan State to block applications for external grants, but the court dismissed that argument based on the plain and unambiguous language of the contract. 

Weekly Top Ten SSRN Contracts Downloads (January 12, 2017)

SSRN Top Downloads For
Contracts & Commercial Law eJournal

Rank	Downloads	Paper Title
1	518	Risk and Anxiety: A Theory of Data Breach Harms Daniel J. Solove and Danielle Keats Citron George Washington University Law School and University of Maryland Francis King Carey School of Law
2	198	The Promise and Problems of Universal, General Theories of Contract Law Brian Bix University of Minnesota Law School
3	161	Drafting for Dispute Resolution John M. Newman University of Memphis - Cecil C. Humphreys School of Law
4	137	The Commercial Law of Bitcoin and Blocktrain Transactions Stephen M. McJohn and Ian McJohn Suffolk University Law School and Independent
5	126	Contractual Estoppel and the Misrepresentation Act 1967 Richard Hooley University of Cambridge - Faculty of Law
6	124	Introduction to Contract, Status, and Fiduciary Law Paul B. Miller and Andrew S. Gold McGill University Faculty of Law and DePaul University College of Law
7	116	Empirical Findings on International Arbitration: An Overview Christopher R. Drahozal University of Kansas School of Law
8	104	The Corporation as Courthouse Rory Van Loo Boston University School of Law
9	102	The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions Jan H. Hendrik Dalhuisen King's College London
10	98	Excessive Contractual Penalties in Football Despina Mavromati Court of Arbitration for Sport

 

SSRN Top Downloads For
Law & Society: Private Law - Contracts eJournal

Rank	Downloads	Paper Title
1	198	The Promise and Problems of Universal, General Theories of Contract Law Brian Bix University of Minnesota Law School
2	161	Drafting for Dispute Resolution John M. Newman University of Memphis - Cecil C. Humphreys School of Law
3	126	Contractual Estoppel and the Misrepresentation Act 1967 Richard Hooley University of Cambridge - Faculty of Law
4	124	Introduction to Contract, Status, and Fiduciary Law Paul B. Miller and Andrew S. Gold McGill University Faculty of Law and DePaul University College of Law
5	104	The Corporation as Courthouse Rory Van Loo Boston University School of Law
6	102	The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions Jan H. Hendrik Dalhuisen King's College London
7	98	Excessive Contractual Penalties in Football Despina Mavromati Court of Arbitration for Sport
8	94	Remedies Ariel Porat Tel Aviv University
9	81	Failures in Law Making: The Case of Arbitration Law in India Badrinath Srinivasan Independent
10	66	Forced Arbitration: How Corporations Use the Fine Print to Bully Americans AAJ Research American Association for Justice

City Can't Delegate Duties as Owner of Apartment Units

If you're looking for an example of duties unable to be delegated, a recent case out of the Middle District of Florida, Floyd v. City of Sanibel, Case No. 2:15-cv-00795-SPC-CM, has one for you. In the case, the Floyds live in a housing unit owned by the City of Sanibel. The City claimed to have delegated its housing duties to Community Housing & Resources ("CHR"), with whom the Floyds entered into a lease that named CHR as its landlord. However, the City was heavily involved with both funding CHR and making decisions on everyday operations for CHR's properties, undermining the assertion that it wasn't involved with the contract at issue. Even without that involvement, though, Florida law dictates that property owners cannot delegate their duties to provide reasonably safe premises by hiring another entity to operate and maintain the property. Therefore, the court allowed the Floyds' claims against the City to stand, holding the City to the lease as CHR's principal. 

When the Break-Up of a Marriage Is Also a Breach of Contract

Photo Source: hgtv.com

The main reason I have cable these days, honestly, is because of my HGTV addiction. I like that the shows are so predictable and formulaic, which makes them low-stress. It's a habit I started years ago as a stressed-out lawyer in a law firm, when I needed to come home and watch something that didn't require thought, and it's kept me company as I transitioned into academia. And I'm apparently not alone in using it as comfort television. 

I use HGTV a lot in my Contracts class as the foundation of hypotheticals (so much that I'm contributing a chapter to a book detailing how I use it) and so I'm always interested when there is a real-life HGTV contract problem...such as is happening right now with "Flip or Flop." 

You might not be anxiously following HGTV shows, so let me tell you that the world was recently rocked (well, a small corner of the world) by the revelation that Christina and Tarek, the married couple with two young children at the center of the house-flipping show "Flip or Flop," were separated and/or getting divorced. And now come reports that HGTV has threatened them with a breach of contract action if their ongoing marital problems affect the filming of the show.

This is an example of the interesting issues that arise when your personal life becomes the equivalent of your contractually obligated professional life. Christina and Tarek no longer want to be married to each other, apparently, which is a stressful enough situation, without adding in the fact that their marriage is also the source of their livelihood. HGTV has a point that the show is less successful when you know that their personal life is a mess. The network was running a commercial pretty steadily through the holiday season where Christina and Tarek talked about their family Christmas, and every time I saw it I thought it was so weird and that they should pull the commercial. But that was clearly the advertising campaign HGTV had long planned for the show and it was probably costly for HGTV to change it at that point.

I am curious to see what the resolution of this is. I'm unclear how much longer Christina and Tarek were under contract for. They probably hoped to keep their separation quiet for as long as they could (they had, after all, kept it quiet for several months). But now that it's out in the open, we'll have to see how the parties recalibrate not just their personal but also their contractual relationships with each other. There is always a lot of talk about how "real" the shows on HGTV is. This situation is testing where our boundaries on "real" vs. "fake" actually lie. 

Weekly Top Ten SSRN Contracts Downloads (January 5, 2017)

As AALS continues in full swing in San Francisco, let's take a moment to glance at our first Top Ten Downloads lists for 2017:

 

SSRN Top Downloads For
Contracts & Commercial Law eJournal

Rank	Downloads	Paper Title
1	457	Risk and Anxiety: A Theory of Data Breach Harms Daniel J. Solove and Danielle Keats Citron George Washington University Law School and University of Maryland Francis King Carey School of Law
2	311	Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals John C. Coates, IV Harvard Law School
3	189	The Promise and Problems of Universal, General Theories of Contract Law Brian Bix University of Minnesota Law School
4	122	The Commercial Law of Bitcoin and Blocktrain Transactions Stephen M. McJohn and Ian McJohn Suffolk University Law School and Independent
5	120	Contractual Estoppel and the Misrepresentation Act 1967 Richard Hooley University of Cambridge - Faculty of Law
6	102	Introduction to Contract, Status, and Fiduciary Law Paul B. Miller and Andrew S. Gold McGill University Faculty of Law and DePaul University College of Law
7	95	The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions Jan H. Hendrik Dalhuisen King's College London
8	93	Local Governments and Risky Home Loans Kathleen C. Engel Suffolk University Law School
9	93	Excessive Contractual Penalties in Football Despina Mavromati Court of Arbitration for Sport
10	88	The Corporation as Courthouse Rory Van Loo Boston University School of Law

 

SSRN Top Downloads For
Law & Society: Private Law - Contracts eJournal

Rank	Downloads	Paper Title
1	311	Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals John C. Coates, IV Harvard Law School
2	189	The Promise and Problems of Universal, General Theories of Contract Law Brian Bix University of Minnesota Law School
3	120	Contractual Estoppel and the Misrepresentation Act 1967 Richard Hooley University of Cambridge - Faculty of Law
4	102	Introduction to Contract, Status, and Fiduciary Law Paul B. Miller and Andrew S. Gold McGill University Faculty of Law and DePaul University College of Law
5	95	The New Lex Mercatoria: An Emerging Challenge to Legal Systems in Cross-Border Transactions Jan H. Hendrik Dalhuisen King's College London
6	93	Excessive Contractual Penalties in Football Despina Mavromati Court of Arbitration for Sport
7	88	The Corporation as Courthouse Rory Van Loo Boston University School of Law
8	88	Remedies Ariel Porat Tel Aviv University
9	82	Drafting for Dispute Resolution John M. Newman University of Memphis - Cecil C. Humphreys School of Law
10	73	Failures in Law Making: The Case of Arbitration Law in India Badrinath Srinivasan Independent

 

Non-Compete Earns a Preliminary Injunction in Case Involving a Community Publication

I started reading this case because the first party's name was "Our Town" and I have fondness for that play...but it turned out to be a really interesting dispute over a non-compete provision that resulted in a preliminary injunction.

The plaintiff in the case out of Pennsylvania, Our Town v. Rousseau, No. 3:16-CV-2484 (behind paywall), operates a community publication called "Our Town." The defendants in the case entered into a contract to franchise the "Our Town" brand in a county in New Jersey. The franchise contract contained a non-compete provision prohibiting the defendants from operating any similar business within fifty miles of the franchise location or other "Our Town" publications for a period of three years. 

After a series of political editorials, the defendants decided to terminate the franchise relationship, alleging that "Our Town" was no longer viable in the franchise location and they wished to launch a more "family friendly publication." On the day that defendants notified the plaintiff they were terminating the agreement, the plaintiff learned that the defendants were operating a similar publication called "Home Town" in the franchise location. The plaintiff, alleging that this was a violation of the non-compete, sought a preliminary injunction. 

The court granted the injunction. The court found that the plaintiff was likely to succeed on the merits of the case. The parties behaved as if they were bound by the franchise agreement, and the non-compete in the agreement was enforceable. The court found it was supported by valid consideration, that fifty miles has been found to be a reasonable geographic restriction, and that three years have been found to be a reasonable time period. Plus, the court found that the non-compete protected the plaintiff's legitimate business interests and so the plaintiff would be irreparably harmed without the injunction. 

The defendants tried to argue that the injunction would harm them because they would be unable to make a living if the non-compete was enforced. The court noted, however, that this harm was of the defendants' own making.