Tuesday, October 31, 2017
Arbitration clause declared unconscionable because of its one-sidedness and limited discovery
A recent case out of California, Diaz v. Hutchinson Aerospace & Industry, Inc., B271563, has a nice, organized unconscionability analysis that leads to finding an arbitration clause unenforceable.
The case concerns an employment agreement signed by Diaz with his employer Hutchinson. The employment contract was indisputably an adhesion contract, because it was distributed pre-printed to employees with no opportunity to negotiate. That does carry some degree of procedural unconscionability but the court characterized it as minimal, since it was not accompanied by any other elements of surprise or sharp dealing. Given the low degree of procedural unconscionability, the court required a high degree of substantive unconscionability.
Unfortunately for Hutchinson, that high degree of substantive unconscionability was met. First, the arbitration provision was one-sided: only claims against the employer were required to go to arbitration, not claims against the employee. Second, the arbitration provision limited discovery in such a way as to make it impossible for the employees to vindicate their rights.
Because this high degree of substantive unconscionability combined with the procedural unconscionability rendered the arbitration clause unenforceable, the court was justified in finding the entire agreement "permeated by an unlawful purpose" and refusing to enforce it.
October 31, 2017 in Labor Contracts, Recent Cases, True Contracts | Permalink | Comments (0)
Monday, October 30, 2017
Whitefish Energy Contract Terminated
As widely reported in the general media today, Puerto Rico terminated the $300 contract it had otherwise executed with tiny Montana company Whitefish. As reported by the New York Times, a federal investigation of the contract award process had been initiated just as the power authority had appointed a trustee to review contract bidding. The Puerto Rico Governor stated that no wrongdoing had been discovered, but that the contract had become a “distraction” and that attention had to be refocused on restoring service to the island.
October 30, 2017 | Permalink
The Culpability of NDAs in Perpetuating Sexual Assault Culture
In the wake of the Weinstein revelations, everyone is talking about it: NDAs seem to be part of the problem. They were used consistently to silence people from speaking out. The NDA seemed to be how you could get away with it, as Weinstein's last-ditch offer to Rose McGowan to keep the lid on the story seems to illustrate. You can read criticisms of NDAs at Vox, Variety (and again), CNN (and again), the New York Daily News, Above the Law, and Forbes. And that was just my first page of Google results. I've been blogging about the danger of them for a while. It's not just the rich and powerful using them; college campuses are also using them in the sexual assault context. And they're not just being used to cover up sexual abuse; Amber Heard's NDA restricted her from apparently ever even mentioning domestic abuse at all. It's easy to see why NDAs are popular among the powerful (the President also loves them). They allow complete and total control of the narrative. An NDA can make it a legal breach for you to tell the truth; an NDA can indeed make it legally enforceable for you to lie, basically. And, in this way, the fuzzy line between truth and fiction becomes fuzzier and fuzzier. And people get victimized and feel alone and the culture of contractual silence makes them lonelier, depriving them of support systems.
NDAs also exist for lots of valid and important reasons. But they are also being widely and abusively used and we as a society need to confront that. The question isn't why less powerful people sign these NDAs. Until we can fix power imbalances (and we're a long way from that), it's always going to happen. But we should really question the public policy justifications for NDAs in certain circumstances. These past couple of weeks have spotlighted lots of troubling systemic issues in our society. This is one of them.
October 30, 2017 in Celebrity Contracts, Commentary, Current Affairs, In the News, Labor Contracts, Law Schools, True Contracts | Permalink | Comments (0)
Sunday, October 29, 2017
Whiteboard and Black-Letter: Visual Communication in Commercial Contracts
Date Written: October 22, 2017
Abstract
Scholars are increasingly exploring the intersections of visual expression with law and legal practice. This attention is welcome. Visual thinking and communication are unusually valuable tools for lawyers, including lawyers who plan transactions, design and draft contracts, and advise clients about their performance. Commercial relationships are often complex, the individuals involved of diverse backgrounds and roles, and the documents difficult to comprehend. Visual methods, as demonstrated through research in a number of fields, facilitate comprehension and collaboration across disciplines and social communities, and few business people will prefer contract text over timeline. That said, visual executions are not often observed in contract documents, and formal use of visual presentation by commercial lawyers faces substantial cultural and practical hurdles. This article begins taking on those hurdles. It explains why visual methods are useful in transactional work, identifies barriers to use of visual executions in contracts, and assesses recent scholarship encouraging such use in view of a characterization of contracts as managerial objects that operate across multiple inter-firm, intrafirm, and interdisciplinary communities over time. The article then examines two core questions about the use of visual presentation in contracts and related materials: treatment under contract interpretation and evidentiary principles, and characteristics of transactional situations where visual executions may be especially helpful. It concludes by suggesting a number of research streams, model creation, and other actions intended to build the case for such use. Visuals work in deal work; we should use the best tools for the job.
October 29, 2017 | Permalink
Whitefish Energy - Strongarming Puerto Rico into Contractual Acceptance and Compliance?
As reported on The Hill and in several other national and international news outlets, tiny Montana energy company Whitefish Energy – located in Interior Secretary Ryan Zinke’s very small hometown – stands to profit greatly from its contract with the Puerto Rico Electric Power Authority. That’s fine, of course. However, highly questionable issues about the contract have surfaced recently. For example, Whitefish very famously prohibited various government bodies from “audit[ing] or review[ing] the cost and profit elements of the labor rates specified herein.”
What were those? The Washington Post reports that under the contract, “the hourly rate was set at $330 for a site supervisor, and at $227.88 for a ‘journeyman lineman.’ The cost for subcontractors, which make up the bulk of Whitefish’s workforce, is $462 per hour for a supervisor and $319.04 for a lineman. Whitefish also charges nightly accommodation fees of $332 per worker and almost $80 per day for food.” Another news source notes that “[t]he lowest-paid workers, according to the contract, are making $140.26 an hour. By comparison, the minimum wage in Puerto Rico is $7.25 an hour … [T]he average salary for a journeyman electrical lineman is $39.03 per hour in the continental U.S. However, a journeyman lineman on Whitefish Energy's Puerto Rico project will earn $277.88 per hour.”
Little wonder why the company did not want anyone to “audit or review” its labor rates. If it wasn’t for the apparent “old boy”/geographical connections that seemed to have led to this contract to have been executed in the first place, hopefully no Puerto Rican official would have accepted this contract in the form in which it was drafted.
But it doesn’t end there. When the San Juan mayor called for the deal to be “voided” and investigated, Whitefish representatives tweeted to her, “We’ve got 44 linemen rebuilding power lines in your city & 40 more men just arrived. Do you want us to send them back or keep working?”
To me, this entire contract to violate several established notions of contract law such as, perhaps, undue influence or duress (in relation to contract formation but perhaps also, if possible, to continued contractual performance), bad faith, perhaps even unconscionability, which is a alive and well in many American jurisdictions.
This could work as an interesting and certainly relevant issue-spotter for our contracts students. It also gives one a bad taste in the mouth for very obvious reasons. It will be interesting to see how this new instance of potentially favoring contractual parties for personal reasons will pan out.
October 29, 2017 in Commentary, Contract Profs, Current Affairs, Famous Cases, Government Contracting, In the News, Labor Contracts, True Contracts | Permalink | Comments (0)
Friday, October 27, 2017
Contract Cancellation as Punishment for Sexual Harassment
As reported by CNN, Penguin Press has just cancelled a contract with sexual-predator-of-the-day Mark Halperin, formerly of ABC News and recently a host of "Showtime" on HBO. HBO has also cancelled its plan to create a mini-series based on his book.
Can a contract be cancelled for this reason? I have not seen the actual contract, but it undoubtedly contained a provision allowing the publisher to do so. If not, does it matter? Clearly not. Halperin and others like him well deserve the contractual outcomes of their incredibly poor behavior. I doubt it that Halperin will dispute this legally too.
What in the world is going on with all these allegations and facts demonstrating sexual harassment, gender harassment, and other vile power games in the work place? Sorry, gentlemen, but clearly, many men in the workplace and elsewhere still suffer from an almost incredible sense of entitlement to power over women. "Almost" because history shows that this has apparently always been the case. One would think that in 2017, things would be different, but quite evidently not. Just look at our own industry, legal education, and how many men still dominate that field in the acquisition of job positions, promotions, presentations at conferences, etc. Yes, it is still a man's world. Yes, glass ceilings still exist. How sad to think that as a society, we have not come further than this.
A good aspect of this current revelation trend is that women are finally speaking up against what has happened. It's doubly troubling that not only were they discriminated against, but also did not find it feasible to bring these issues up until now, apparently.
October 27, 2017 in Commentary | Permalink
Thursday, October 26, 2017
Contracts and Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (October 26, 2017)
Top Downloads For Contracts & Commercial Law eJournal 
Recent Top Papers (60 days) as of 27 Aug 2017 - 26 Oct 2017
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
|
265 |
| 2. |
|
171 |
| 3. |
|
155 |
| 4. |
|
150 |
| 5. |
|
132 |
| 6. |
|
124 |
| 7. |
|
103 |
| 8. |
|
99 |
| 9. |
|
97 |
| 10. |
|
92 |
Top Downloads For Law & Society: Private Law - Contracts eJournal 
Recent Top Papers (60 days) as of 27 Aug 2017 - 26 Oct 2017
| Rank | Paper | Downloads |
|---|---|---|
| 1. | 265 | |
| 2. |
|
171 |
| 3. |
|
124 |
| 4. | 103 | |
| 5. | 99 | |
| 6. | 92 | |
| 7. | 90 | |
| 8. | 76 | |
| 9. | 75 | |
| 10. | 74 |
October 26, 2017 in Recent Scholarship | Permalink
Wednesday, October 25, 2017
Diamonds are Also a Man’s Best Friend – Just Remember the Writing
Here is your classic Parol Evidence Rule and oral contracts case, diamonds, faulty translations, millions of dollars, and all.
In 2009, David Daniel invested $3.35 in a 50% ownership interest in the jewelry and coin business Continental Coin, thus co-owning it with Nissim Edri. The partnership agreement was oral only. In 2014, Daniel sought to sell his interest. Edri agreed to pay half of the initial contribution as well as some other amounts for a total of $4.2 million. Edri could not pay this amount and thus suggested Daniel taking approx.. 95 diamonds from the inventory instead. This time, the parties did get a writing that, however, was in Hebrew.
The problem with that was that Edri could not understand the first two pages and subsequently did not agree with the poorly translated version of the contract. This stated, among other things (my emphasis):
“We the undersigned, David Daniel and Nissim Edri, hereby declare, in full faith, that the merchandise to be collected today, Friday, 2/21/2014 from CONTINENTAL COIN & JEWLERY CO is and [sic] a payment in full complete repayment for David Daniel's investment in CONTINENTAL COIN & JEWELRY in the sum total of $4,000,000.
“This agreement is signed with a complete understanding that, in the event there are any adjustments to be made between David Daniel and Nissim Edri, they will be handled with good will and in complete consent by both parties.
“David takes from the partnership four million dollars in merchandise that was evaluated by the company while he was a partner[.]”
Of course, a dispute arose as to the true value of the 95 diamonds collected. Daniels claims they were worth less than $2 m. Edri responded that if Daniel was not satisfied with the diamonds, he could return the merchandise in its entirety whereupon Edri would sell them and pay Daniels as each was sold. Daniels brought suit, citing to their prior oral agreement to deliver diamonds worth $4m and to an agreement on the valuation method, which was to be settled in good faith.
As you can guess, the court made short shrift of Daniels’ attempt to bring in any prior oral agreements on what was to happen if the diamonds delivered were actually not worth $4 m. Said the court: “Daniel contends the merchandise he collected upon signing the written agreement was worth substantially less than $4 million under the valuation method specified in the parties' former oral agreement. In direct conflict with that claim, the written agreement provides that “the merchandise” he collected was “a payment in full complete repayment For David Daniel's investment in CONTINENTAL COIN & JEWELRY in the sum total of $4,000,000.” Because Daniel's claim was premised on a purported oral agreement that was inconsistent with the integrated terms of a final written agreement, the trial court properly rejected his breach of oral contract claim under the parol evidence rule.
So there. Perhaps out $2m. Goes to show that you can never really trust anyone in contractual processes, not even apparent friends.
The case is David Daniel v. Nissim Edri, et al., 2017 WL 4684347
October 25, 2017 in Contract Profs, Miscellaneous, True Contracts | Permalink
Thursday, October 19, 2017
Contracts and Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (October 19, 2017)
Top Downloads for: Contracts & Commercial Law eJournal 
Recent Top Papers (60 days) as of 20 Aug 2017 - 19 Oct 2017
| Rank | Paper | Downloads |
|---|---|---|
| 1. | 247 | |
| 2. | 159 | |
| 3. | 139 | |
| 4. | 129 | |
| 5. | 121 | |
| 6. | 116 | |
| 7. | 101 | |
| 8. | 101 | |
| 9. | 92 | |
| 10. | 87 |
Top Downloads For: Law & Society: Private Law - Contracts eJournal 
Recent Top Papers (60 days) as of 20 Aug 2017 - 19 Oct 2017
| Rank | Paper | Downloads |
|---|---|---|
| 1. | 247 | |
| 2. | 159 | |
| 3. | 121 | |
| 4. | 101 | |
| 5. | 101 | |
| 6. | 96 | |
| 7. | 84 | |
| 8. | 84 | |
| 9. | 83 | |
| 10. | 73 |
October 19, 2017 in Recent Scholarship | Permalink
Will They Ever Learn?
Will They Ever Learn?
Insurance companies have a notorious reputation for failing to uphold contracts with their insureds. Such was the case for Ms. Laura Dziadek when she tried to have the Charter Oak Fire Ins. Co. pay for her medical bills. Dziadek v. Charter Oak Fire Ins. Co., 867 F.3d 1003. After a tragic car accident Ms. Dziadek had significant medical bills. Initially, Ms. Dziadek received $100,000 from her Progressive Insurance policy, but it wasn’t enough to cover her medical expenses. She hired representation and they sought insurance attached to the vehicle in which she was injured. The first attempt to contact Charter Oak yielded no response. The second attempt resulted in a blatant lie that “[the policy] could be over 2000 pages.” Dziadek v. Charter Oak Fire Ins. Co., 867 F.3d 1007. By the time the litigation was hashed out it came about that Ms. Dziadek was not only covered by their policy, but also that the document in question was only 200 pages long. Eventually, a verdict was awarded in favor of Ms. Dziadek for nearly $3 million, including UIM coverage, legal fees, and punitive damages. Charter Oak sought to have all the damages dismissed, but they were ultimately upheld by the 8th Circuit.
I wish that this was a one-time occurrence for insurance companies, that the damages would ultimately cripple them into compliance. However, as we all know insurance companies will continue to make money, and to try and withhold money owed to their clients. The mere fact that ‘deceit’ is an available charge to levy against insurance companies should be a wake-up call to legislatures that laws are to lax, and these insurers are out of control. Until that time lawyers must do their diligence to defend clients from insurance companies, to straighten out the crooked path insurance companies make their customers walk.
October 19, 2017 | Permalink
Monday, October 16, 2017
Take That! Outstanding Contractual Balance, Not Just Profits, Due in Case of Asserted Commercial Impracticability
In Hemlock Semiconductor Operations, LLC v. Solarworld Industries Sachsen GmbH, 867 F.3d 692 (Sixth Cir. 2017), Hemlock contracted to provide Sachsen in Germany set quantities of polysilicon at fixed prices between 2006 and 2019. The market price at the time was well above the price agreed upon between these parties, but plummeted several years later when the Chinese government began subsidizing its national production of polysilicon.
When Sachsen refused to pay the original contractual amount for 2012, Hemlock brought suit for breach of contract. Sachsen defended itself claiming that the Chinese government (1) illegally subsidized its national production of polysilicon and dumped massive quantities of the product onto the market, causing the price of polysilicon to fall; and (2) committed acts of “criminal industrial espionage” against Sachsen's U.S.-based sister company, SWIA. As a result of these illegal actions, the price of polysilicon plummeted, rendering Sachsen's performance impracticable and frustrating the purpose of entering into the contracts with Hemlock.
Hemlock demanded the entire outstanding balance due to Hemlock from 2012 through 2019 – close to $600 million – plus post-judgment interest. Sachsen argued that this would be an unenforceable penalty rather than permissible liquidated damages under the contract. At the most, Sachsen argued, it should pay only for Hemlock’s lost profits since Hemlock did not have to actually produce polysilicon for Sachsen after the breach. This would have saved approximately $200 million for Sachsen.
Both the district and appellate courts found that since even drastic changes in the market are not sufficient to trigger the impracticability defense, Sachsen could not here either, even given the alleged Chinese interference. This, said the district court, was irrelevant because the alleged illegal actions of the Chinese government had “simply caused a market shift in pricing, making it unprofitable for Sachsen to perform as promised.” The appellate court cited to a case where even a $2m a day loss causing a company to go out of business did not warrant the defense. Both courts referred to the standard “floodgates” arguments and not blaming third parties for one’s own contractual misfortunes.
OK, but so what about the lost profit argument? Although such cost savings might factor into an ordinary breach-of-contract claim, the courts concluded that considering cost savings was inappropriate in the context of the particular take-or-pay provision in place between these parties. Hemlock, in other words, was entitled to full payment under the contract even if Sachsen refused delivery of the polysilicon. “Under these circumstances, Hemlock would have had no need to produce the polysilicon, but would still be entitled to be paid in full. The court persuasively reasoned that the [contract] therefore contemplated situations in which Hemlock's cost savings would be irrelevant to the amount of payment that Hemlock was due.”
That argument seems terribly circular to me. Hemlock was entitled to the full contractual amount because Hemlock was entitled to the full contractual amount? Uhm, even if it did not have to do anything and thus did in fact enjoy huge cost savings? I find that erroneous, nonsensical, and actually rather vindictive on the part of the U.S. court system over a foreign entity.
The appellate court also found that “restricting Hemlock's recovery to lost profits without accounting for the fact that Sachsen saved (and Hemlock lost) approximately $509.1 million earlier in the contract term would be inequitable. In light of the fact that Sachsen benefited substantially in the earlier years of the LTAs, the liquidated-damages award is not ‘unconscionable or excessive.’” That does not make sense to me either. The parties took the contractual risks that they did. Granted, Sachsen then breached. But greed then seemed to come into play, for profits were the only thing Hemlock would have gotten out of the situation had there not been a breach. Hemlock was placed in a vastly better situation here than what liquidated damages normally allow for, precisely because they cannot be punitive. They seemed to have been here as they were a simple, yet extreme formula: if breach, pay the rest of the contract no matter what. When the contractually stipulated liquidated amount grossly exceeds actual damages, courts of law usually construe such provision as an unenforceable penalty. Not in this case, not even for a windfall of $200 million.
The case is Hemlock Semiconductor Operations, LLC v. SolarWorld Indus. Sachsen GmbH, 867 F.3d 692, 707 (6th Cir. 2017), reh'g denied (Sept. 19, 2017)
October 16, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (1)
Friday, October 13, 2017
Twitter's Discretion in Its Terms of Service and the Way We Define Words
If you're a person who spends time on Twitter, you might be aware that it's been a manic week on the platform (although every week is a manic week on Twitter; it's 2017). As the news broke about Harvey Weinstein's pattern of multiple sexual assaults, Rose McGowan added to the many allegations and tweeted an accusation of rape against him. Later, McGowan's Twitter account was suspended. The reaction to this suspension was swift and furious by many of the platform's users. Twitter later clarified that it suspended her account because she had posted a personal phone number (in violation of Twitter's policies) but for a while the exact reason was unclear, and many users complained that it was more of Twitter's selective enforcement of its policies.
I'm about to settle in to teach contract ambiguity and rules of interpretation, and looking through Twitter's policies I'm reminded of how important it is that we keep our human biases in mind when defining words. Twitter's policies--which we all agree to through Twitter's Terms of Use--give the company a lot of discretion in how the policies get applied: "We may suspend an account if it has been reported to us as violating our Rules surrounding abuse" (emphasis added); "Some of the factors that we may consider when evaluating abusive behavior include . . . ." (emphasis added); "Keep in mind that although you may consider certain information to be private, not all postings of such information may be a violation of this policy. . . . We may consider the context and nature of the information posted, local privacy laws, and other case-specific facts when determining if this policy has been violated" (emphasis added). Aside from the discretion, though, is the issue of how words like "harassment" and "abusive behavior" are even getting defined. It's clear from the very public debates that have been erupting recently that there is a different view of that depending on which gender, race, and ethnic identity you ask. To take just one example, the discussion around telling women to smile indicates that many women find this harassing while many men don't see what the big deal is. Twitter might be deliberately selectively applying its policies but it also might just be defining its policies in a way that leads to selective enforcement because of the particular worldview of the people making the decisions. This means, dangerously, that they might sincerely believe they're applying rules neutrally, without recognizing any built-in bias.
Social media's increasing reliance on algorithms to handle the speech going on on the sites has lots of problems, and as more and more public discourse collides up against more and more opaque policies, it seems like a problem that's only going to get worse. We should think about these issues, and we should especially think about them as we teach our students how to interpret the contracts that govern our lives: we all have an entrenched viewpoint that should be critically examined rather than blithely assume our own neutrality.
In the meantime, I'm going to post this blog and then tweet to tell you all about it, because that's the way we communicate in today's society, and I'm going to have to agree to Twitter's policies to do it, and I'm going to hope these policies let me make the tweet, something that many of us take for granted but that is definitely not guaranteed. Our contracts are never as clear as we hope.
October 13, 2017 in Commentary, Current Affairs, In the News, True Contracts, Web/Tech | Permalink | Comments (0)
Thursday, October 12, 2017
Contracts and Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (October 12, 2017)
The Top Ten List returns after an unintended hiatus over the last two weeks. Happy reading!
Top Downloads For the Contracts & Commercial Law eJournal 
Recent Top Papers (60 days) as of 13 Aug 2017 - 12 Oct 2017
| Rank | Paper | Downloads |
|---|---|---|
| 1. | 221 | |
| 2. | 149 | |
| 3. | 135 | |
| 4. | 129 | |
| 5. | 126 | |
| 6. | 108 | |
| 7. | 95 | |
| 8. | 92 | |
| 9. | 90 | |
| 10. | 82 |
Top Downloads For Law & Society: Private Law - Contracts eJournal 
Recent Top Papers (60 days) as of 13 Aug 2017 - 12 Oct 2017
| Rank | Paper | Downloads |
|---|---|---|
| 1. | 221 | |
| 2. | 149 | |
| 3. | 135 | |
| 4. | 129 | |
| 5. | 108 | |
| 6. | 95 | |
| 7. | 92 | |
| 8. | 91 | |
| 9. | 77 | |
| 10. | 71 |
October 12, 2017 in Recent Scholarship | Permalink | Comments (0)
Monday, October 9, 2017
Want specific performance? Be ready to prove you can afford it
I am gearing up to teach specific performance soon, so this recent case out of New York, Grunbaum v. Nicole Brittany, Ltd., 2015-10155, caught my eye. The relevant facts of the dispute are fairly simple and straightforward: The parties had a contract regarding property and the closing didn't happen. The plaintiff sued for specific performance. The defendant moved to dismiss the complaint and the plaintiff cross-moved for summary judgment on the complaint. But the plaintiff failed to establish that he was actually able to buy the property in question. He submitted no evidence as to his financial condition, and to receive specific performance that plaintiff had to show "that he was ready, willing, and able to purchase the subject property." Therefore, even though the defendant's motion to dismiss was denied, the court also denied the plaintiff's motion for summary judgment.
October 9, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)
Wednesday, October 4, 2017
A slip-and-fall in a cruise ship bathroom, a forum selection clause, a defective filing, an untimely filing...and equitable tolling
A recent case out of the Southern District of Florida, Jordan v. Celebrity Cruises, Inc., Case No. 1:17-cv-20773-WILLIAMS/TORRES (behind paywall), concerned a plaintiff, Jordan, who was allegedly injured when she slipped and fell in the bathroom of her cabin. She attempted to sue the defendant, Celebrity Cruises, in Florida state court. However, her ticket contract with Celebrity Cruises required that any causes of action be filed in the Southern District of Florida. Jordan did eventually file in the Southern District of Florida but it was after the statute of limitations had run.
The main issue in the case revolved around whether the statute of limitations could be equitably tolled, since she had filed in state court prior to the statute of limitations running. Jordan argued that she did not have her ticket contract, nor was she aware that it required suit in the Southern District of Florida--a not-at-all implausible argument on her part, considering that few of us read those terms and conditions or really register them. She claimed that the first time she realized she had a ticket contract with Celebrity Cruises was when Celebrity Cruises attached the ticket contract to its motion to dismiss her state court complaint, and that the case was refiled in the proper contractual forum shortly thereafter.
The court found that equitable tolling could apply. Jordan was diligent in pursuing her cause of action, and Celebrity Cruises did not suffer any adverse consequences, since Jordan had provided timely notice of her injury to Celebrity Cruises. The court did not think Jordan was negligent in her failure to file in the proper forum. Celebrity Cruises seemed to argue that Jordan should have found the ticket contract online to learn where the proper forum to file would be, but there was no evidence in the record showing that the ticket contract was so easy to locate online that Jordan's failure to do so was negligent. Therefore, Jordan's timely filing in the wrong forum entitled her to equitable tolling, considering her diligence in all other respects.
October 4, 2017 in Commentary, Recent Cases, Travel, True Contracts | Permalink | Comments (0)
Dean Search Announcement: Texas A&M University School of Law
Greetings, ContractsProf Blog readers--today I invoke my rarely-used editor's prerogative to publicize an important announcement from my home institution. Feel free to share the following Dean Search Announcement from Texas A&M University School of Law in Fort Worth, Texas, a place that I can say from firsthand experience is a wonderful place to teach, write, and serve.
Texas A&M University invites nominations and applications for the position of Dean of the Texas A&M University School of Law. The desired appointment date is July 1, 2018.
Texas A&M University is a tier-one research institution and American Association of Universities member. As the sixth largest university in the United States, Texas A&M University is a public land-grant, sea-grant, and space-grant university dedicated to global impact through scholarship, teaching, and service. The members of its 440,000 strong worldwide Aggie network are dedicated to the University and committed to its core values of excellence, integrity, leadership, loyalty, respect, and selfless service.
Located in Fort Worth, the Texas A&M University School of Law is one of 16 colleges and schools that foster innovative and cross-disciplinary collaboration across more than 140 university institutes and centers and two branch campuses, located in Galveston, Texas and Doha, Qatar. Since joining the A&M family in 2013, the law school has sustained a remarkable upward trajectory by increasing its entering class credentials and financial aid budgets; shrinking the class size; hiring new faculty members, including nationally recognized scholars; and enhancing the student experience. Consistent with its mission, Texas A&M University School of Law integrates cutting edge and multidisciplinary scholarship with first-rate teaching to provide students with the professional skills and knowledge necessary for tomorrow’s lawyers. Texas A&M University School of Law faculty members and students play a vital role by providing their legal expertise to collaborations with other Texas A&M professionals to develop new understandings through research and creativity.
The next Dean of Texas A&M University School of Law should provide dynamic, innovative, and entrepreneurial leadership and vision to shape the school’s continued transformation into a model for future legal education. Candidates should have a Juris Doctorate and a scholarly record appropriate for appointment at the rank of tenured professor. Other candidates who hold distinguished records of professional and intellectual leadership or outstanding service to the community will also be considered. The successful candidate should be:
- committed to the school’s scholarly mission;
- a strong law school advocate who seeks cross-unit collaborations with other university schools and colleges;
- a successful fundraiser who can obtain support for various programs and projects, including the Law School Building Project recently approved by The Texas A&M University System Board of Regents, as well as endowed faculty chairs, professorships, and student scholarships;
- an effective administrator with team-building skills and a collaborative management style appropriate to a complex organization; and
- dedicated to community engagement and public service and experienced at external relations, including outreach to law firms, corporations, and foundations as well as government agencies, non-profit organizations and policy-makers.
The Texas A&M University School of Law is located in the heart of downtown Fort Worth, a city known for a unique confluence of Texas history and renowned arts. Fort Worth enjoys a diverse business community, including energy, defense, international trade, and logistics as well as financial services. Just outside of downtown, Fort Worth has many neighborhoods with recognized schools a short distance from the law school. Fort Worth is known nationally as the home to the Bass Performance Hall, the Kimbell Art Museum, and the Amon Carter Museum of American Art, among others. The Trinity River flows through the city. It features over 40 miles of trails, providing access to the Fort Worth Botanic Garden, the Japanese Garden, the Fort Worth Zoo, and the historic Stockyards. The Fort Worth/Dallas metropolitan area has a total population of more than seven million. It offers a vibrant legal community that supports extensive federal and state court systems, including the Patent and Trademark Office, the Federal Reserve Bank, the National Labor Relations Board, the Environmental Protection Agency, and the Securities and Exchange Commission. Fort Worth/Dallas has one of the world’s largest airports. As one of the most desirable places to live and work in the United States, the metroplex has attracted many multinational corporations.
Applications should include a curriculum vitae, a cover letter including a statement of interest, and a list of three references. Only nominations and applications received by November 17, 2017 are assured consideration. Nominations and applications received after November 17, 2017 may or may not be considered.
Applications and nominations should be submitted electronically in confidence to [email protected]. Applicant information will be kept confidential to the maximum extent allowable by law. Additional information and timeline can be found at http://lawsearch.tamu.edu.
Texas A&M University provides equal opportunity to all employees, students, applicants for employment or admission, and the public, regardless of race, color, sex, religion, national origin, age, disability, genetic information, veteran status, sexual orientation, or gender identity.
October 4, 2017 in Law Schools | Permalink
Fraud and Bad Faith No Excuse for Liability in Related Contract
The Eight Circuit Court of Appeals has held that conduct tending to show fraud and bad faith in relation to one contract is not an excuse for not performing in a closely related contract.
Dr. Halterman signed a recruitment agreement, an employment contract, and a promissory note in the amount of $50,000 as a “signing advance” – a loan - for his upcoming work as a doctor with the Johnson Regional Medical Center (“JRMC”). The recruitment agreement stipulated that the monthly payments on the signing advance would be forgiven so long as Dr. Halterman’s employment at JRMC “continued.” It did not. Five months into his employment, Dr. Halterman quit, citing to, i.a., JRMC’s fraudulent misrepresentations in negotiating his call-coverage obligations and bad faith in that respect. Dr. Halterman had also suffered a shoulder injury that both parties at one point agreed would result in him not being able to do all the work for JRMC that the parties had originally agreed upon.
JRMC claimed repayment of $37,894 still owed by Dr. Halterman when he resigned without, in the hospital’s opinion, a “legal defense.” Dr. Halterman sought to excuse himself from having to repay the remainder of the loan.
The appellate court agreed with JRMC that Dr. Halterman’s obligations to pay the remaining debt were not excused by his allegations (or eventual proof) of fraud or breach of the duty of good faith in the employment contract. An executory contract procured by fraud is not binding on the party against whom the fraud has been perpetrated. Here, Dr. Halterman sought not to perform under the employment contract, but the court found that the loan agreement was an entirely separate contract that thus still had to be performed.
This situation could have been avoided with more legally apt language, of course. Such language could have included express conditions stating that the loan was not to be repaid under a set of circumstances covering, for example, fraud. However, I find it troublesome that the legal effects of three contracts that clearly were meant to relate to and arguably depend on each other were separated decisively as the court did here. In fact, the parties disagreed on whether the three executed documents should be considered separately or as one single contract. The court analyzed the employment contract as separate from the recruitment agreement and note, which were treated as one. That may or may not make sense. Granted, it may make sense that sophisticated parties such as these could simply, if they had intended one single legally binding contract to arise, have worded their documents accordingly. On the other hand, it does not make much common sense to find that a “recruitment” contract is entirely different from an “employment” contract; the two are clearly connected. If fraud has arisen, is not the result of the above that the party acting fraudulently – the hospital, allegedly – can if not outright recover from a fraud, then at least avoid losses from it? Although I do agree with the outcome here, it seems like it to me that some troublesome aspects of this finding remain, namely that an employer apparently got away with broken employment promises fairly scot-free. That’s not fair.
The case is Johnson Regional Medical Center v. Dr. Robert Halterman, 867 F.3d 1013 (Eighth Cir. Ct. of App. 2017).
October 4, 2017 in Current Affairs, Labor Contracts, Miscellaneous, Recent Cases, True Contracts | Permalink | Comments (0)
Monday, October 2, 2017
Reminder that silence generally doesn't constitute acceptance
The allegations of this recent case out of the Northern District of California, Consumer Opinion LLC v. Frankfort News Corp., Case No. 16-cv-05100-BLF (behind paywall), are fascinating. Basically, Consumer Opinion owned a consumer review website and alleged that Defendants provided "reputation management" services by which Defendants copied the contents of Consumer Opinion's website, back-dated these contents so that it would look like Defendants' site pre-dated the Consumer Opinion website posting, and then asserted that the Consumer Opinion website was infringing their copyright. Such, at least, were the allegations in the complaint. (You can read the complaint here. You can also read the order on Consumer Opinion's TRO motion here and the order on Consumer Opinion's motion for early discovery here.)
The parties had discussed settlement, and in the current motion Consumer Opinion moved to enforce a settlement agreement between it and Defendant Profit Marketing, Inc. The problem? They never reached any such agreement. First Consumer Opinion tried to argue that Profit Marketing agreed to settle for $50,000 but Profit Marketing's lawyer's last communication on the matter read, "Well I can't agree without my clients consent but that sounds fine to me. I'll get their approval when I talk to them today." As I've been teaching my students as we walk through offer and acceptance, this statement betrayed a lack of authority to enter into a present commitment ("I can't agree without my client's consent.").
Consumer Opinion then tried to argue that Profit Marketing agreed to settle for $35,000. However, its proof of this was a general e-mail whereby one of Profit Marketing's other attorneys expressed openness to pursuing settlement, followed by several replies by Consumer Opinion that were never responded to. Eventually, in the face of the continuing silence from Profit Marketing's attorney, Consumer Opinion asserted that if it got no response by 5 pm, it would move to enforce the settlement agreement. It got no response, and this motion followed.
The court refused to read Profit Marketing's attorney's silence as acceptance of Consumer Opinion's settlement offer. Rather, Profit Marketing's lack of response indicated that it never accepted the offer, and so there was no binding settlement agreement between the parties.
October 2, 2017 in Current Affairs, In the News, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)
Pagination Worth $5.5 m
A contract worth $11 b. Two such major parties as Yahoo!, Inc. and SCA Promotions, Inc. And still the contract does not specify precisely what the payments due are supposed to be for.
In 2014, Yahoo wanted to sponsor a perfect bracket contest in connection with the 2014 NCAA Men's Basketball Tournament, with a $1 billion prize for any contestant who correctly predicted the winner of all 63 games. SCA provides risk management for marketing and prize promotions. In return for a fee, SCA agreed to pay the $1 billion prize if any contestant won the contest.
Two invoices, dated December 27, 2013, were attached to the Contract with continuous pagination. According to the second invoice, the contract fee was $11 million. Yahoo owed an initial deposit of $1.1 million to SCA “[o]n or before December 31, 2013”; the remaining $9.9 million was due to SCA “[o]n or before February 15, 2014.”
The contract permitted Yahoo to cancel the contract with fees varying depending on when Yahoo cancelled. The relevant provision read as follows:
Cancellation fees: Upon notice to SCA to be provided no later than fifteen (15) minutes to Tip-Off of the initial game, Yahoo may cancel the contract. In the event the contract is cancelled, Yahoo will be entitled to a refund of all amounts paid to SCA subject to the cancellation fees set forth in this paragraph … Should the signed contract be cancelled between January 16, 2014 and February 15, 2014, a cancellation penalty of 50% of the fee will be paid to SCA by Sponsor (emphasis added).
Yahoo subsequently cancelled, but argued that it only owed SCA a cancellation fee of $550,000 because “50% of the fee” means 50% of the $1.1 million that Yahoo had already paid to Yahoo as an interim payment. SCA argued that the cancellation fee was $5.5 because “50% of the fee” means 50% of the $11 million total contract fee.
The Fifth Circuit Court of Appeals agreed with SCA: “The district court determined that the Contract's terms do not expressly set an $11 million fee. According to the district court, nowhere does the Contract specify or identify the invoices, when they will be paid, or otherwise provide that the fee is $11 million. But the Contract references invoices several times, and it provides that “this contract, including exhibits and attachments, represents the entire final agreement between Sponsor [Yahoo] and SCA, and supersedes any prior agreement, oral or written.” Although the Contract does not explicitly identify the invoices to which it refers, two invoices are attached to the Contract with pagination continuous with the rest of the Contract … It is clear from the Contract's terms that the invoices are part of the Contract. See In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) (“Documents incorporated into a contract by reference become part of that contract.”). Accordingly, the district court's conclusion that the Contract does not specify an $11 million fee was in error.”
Once again, students and practitioners: be clear when you draft documents! Unambiguous language and specific references can be worth millions, if not billions, of dollars.
The case is SCA Promotions, Inc., v. Yahoo!, Inc., 868 F.3d 378 (Fifth Cir. 2017).
October 2, 2017 in Contract Profs, Miscellaneous, Sports, True Contracts | Permalink | Comments (0)
Sunday, October 1, 2017
Separate Bag Fees Raise the Cost of Flying
Three peer-reviewed studies have each concluded that travelers who pay an additional fee for luggage pay more than they did, on average, when bag costs were included in the airfare. This finding was first reported by the Los Angeles Times.
Airlines started "unbundling" their services such as food, drinks, luggage and now even reserving seats in an alleged effort to give passengers the option of only paying for what they want.
Officially, airfare rates have fallen over the past three consecutive years, but with the added luggage fees, flying is actually more expensive.
Since airlines by and large charge the same prices for things unless, perhaps, you have good frequent flyer credit with them and can book tickets months and months ahead of time, your contractual bargaining power with them will be almost zero. Take it or leave it!
October 1, 2017 in Commentary | Permalink | Comments (1)
