ContractsProf Blog

"We'll Take Care of You" Does Not Equal $2.5 Million for Johnny Wilkes

When I teach vagueness, I use Baer v. Chase. The case is about an aspiring screenwriter who pitches a script for a show about the New Jersey mob to David Chase, the creator of The Sopranos.  Mr. Chase did not use the script, but he is alleged to have borrowed some ideas and, at the very least, the colorful names of two characters.  Mr. Baer alleged an expectation of payment, but the best evidence he had of an agreement was an allegation that Mr. Chase repeatedly promised, "We'll take care of you."  In the mob context, I found this statement not just vague but delightfully ambiguous.  See the conversation in Pulp Fiction between Jules (Samuel Jackson) and Vincent (John Travolta) in the elevator about "taking care" of Mia Wallace ("Uma Thurman").

Well, it turns out "We'll take care of you" is just what people say in these situations.  Johnny Wilkes, the best friend of an uncle of Kawhi Leonard (right, with fan), claims that Jerry West said those words to Mr. Wilkes in connection with the latter's efforts to help the Los Angeles Clippers persuade Mr. Leonard to join the team.  Mr. Wilkes claims that he demanded and was assured that he would be taken care of to the tune of $2.5 million, which was his estimate of a sports agent's take on such a contract. 

It appears that the Mr. Wilkes's best friend, Dennis Robertson, is an important advisor to Mr. Leonard, but Mr. Wilkes does not allege that either he or Mr. Robertson was Mr. Leonard's sports agent. After Mr. Leonard did join the team, Mr. Wilkes sued Mr. West and the Clippers, alleging, inter alia, breach of contract, promissory estoppel, and fraud.  The trial court dismissed the claims, and in January, 2024, a California appellate court affirmed in Wilkes v. LA Clippers, LLC.

This case adds an agency wrinkle to the vagueness problem in Baer v. Chase.  The court provides an extended excerpt from Mr. Wilkes's testimony, and he is less than convincing about the specific promise to pay $2.5 million.  Nor is it clear what services, if any, he provided, given that Mr. Leonard appears to have been unaware fo Mr. Wilkes's role.  Another impediment is that the alleged promise came from Mr. West, but the alleged payor was Steve Ballmer, the owner of the Clippers, and Mr. Ballmer never made a promise.  The parties dispute whether Mr. West had authority to bind either Mr. Ballmer or the Clippers in this matter, but the case really turned on the court's finding that the alleged contract was fatally vague as to the services Mr. Wilkes was to perform in order to be entitled to payment.

First Circuit Rules on Contract & Bailment Disputes Regarding Liberace's Piano

At issue is a piano, once owned by Liberace (right with actor Maureen O'Hara).  The First Circuit's opinion is mostly concerned with law stuff, on which more below. Thomas F. Harrison provides the factual summary in the Courthouse News.  

According to the reporting, Baldwin pianos (Baldwin), owned since 2001 by the Gibson Foundation, Inc. (Gibson), asked Rob Norris to remove a piano made for Liberace from a Manhattan ballroom undergoing renovation. The piano was encrusted with 10,000 rhinestones. When Baldwin requested that the piano be returned in 2015, Mr. Norris refused, claiming that the piano was a gift given in the expectation that Mr. Norris and his Rockland, Mass. business, The Piano Mill, would use the piano for promotional purposes.

Apparently, Gibson, which may have lost track of the piano, suddenly grew interested when Mr. Norris gave an interview in which he estimated the value of the piano at $500,000. His attorney now says that his client was "puffing" as Liberace himself was wont to do. 

The First Circuit opinion in Gibson Foundation, Inc. v. Norris focuses not so much on the colorful characters involved but, alas, on statutes of limitations.  Gibson alleged either a breach of a bailment, or a breach of a warehousing agreement. The District Court had granted Norris summary judgment, finding that the three-year statute of limitations had run on Gibson's bailment claim and that it had not provided sufficient evidence to support a jury finding that a contract existed between the parties. 

For the purposes of the appeal from summary judgment, the court assumed that a bailment agreement existed, but the statute of limitations for bailments under Massachusetts law turned out to be a very tricky issue. Under Massachusetts law, it seems that the statute of limitations for a breach-of-bailment claim is either three years, if the gist of the claim sounds in tort, or six years, if the gist of the claim sounds in contract. Here, the First Circuit concluded, a reasonable jury could conclude that the gist of the claim derived from a breach of a mutually beneficial arrangement and thus that six-year statute of limitations could apply.  Norris gave consideration by storing the piano; in exchange, The Piano Mill was allowed to use the piano for promotional purposes.  Accordingly, the First Circuit reversed the District Court's grant of summary judgment on Gibson's bailment claim. It was not, as a matter of law, time-barred.

Norris argued in the alternative that Gibson could not establish a bailment because it could not establish that it owned the piano. Gibson Brands, the Gibson entity that claimed to own the piano, had filed for bankruptcy in 2018. In that proceeding it had to list its assets, and it omitted the piano. No matter, said the First Circuit. At least for the purposes of summary judgment, Gibson established a prima facie case for ownership simply because it had possession of the piano prior to handing it over to Mr. Norris.

Given its findings in connection with the breach-of-bailment claim, it comes as no surprise that the First Circuit also reversed the District Court's grant of summary judgment to Mr. Norris on Gibson's breach-of-contract claim. However, it affirmed the District Court's denial of summary judgment to Gibson on both of its claims.  The case was remanded and proceeded to trial. In July, as Brian Dowling reports on Law360 here, the jury handed a victory to Gibson.

If you are not a Boomer or Gen-X, you may be wondering who this Liberace fellow was.  You can't go amiss with a Google search, but make sure you watch a video.  Liberace was always on, and so whatever you find will be a faithful representation of his public persona.  Here's a taste:

George Santos Sues Jimmy Kimmel Over Use of Cameo Video

Not a great week for George Santos (left).  First, he had to plead guilty to wire fraud and identity theft. Now, he has lost his case against Jimmy Kimmel.

What do you do when you have been expelled from the House of Representatives and your campaign for re-election as an Independent has failed?  One option is to capitalize on your notoriety by posting personalized videos through Cameo.  Rudy Giuliani does it. Rod Blagojevich does it.  Why shouldn't George Santos do it?  According to The Guardian, the money is good, and Mr. Santos has bills to pay.  As part of his plea agreement, he has to pay $375,000.

There is one down-side, of course.  Some mean-spirited people might use the videos to make fun of Mr. Santos.  According to the allegations of the complaint, that is what Jimmy Kimmel and his co-defendants did. Under the "guise of fandom," the defendants intentionally deceived Mr. Santos, broadcast his videos on television in order to demean and humiliate him, and then bragged about how it would be a "dream come true" if Mr. Santos were to sue, alleging fraud.  Well, Mr. Santos knows a lot about fraud, and he did not hesitate to make Mr. Kimmel's dreams come true.

Mr. Santos filed suit in Santos v. Kimmel in February, alleging copyright infringement, fraudulent inducement, breach of contract, and unjust enrichment.  The Complaint concedes that Cameo users can request videos licensed for personal or business purposes.  However, Mr. Santos claims, neither license permits the national broadcast of the videos.  Using pseudonyms, Mr. Kimmel allegedly created fourteen fake Cameo user accounts and solicited different personal videos from Mr. Santos for those fake accounts.  Mr. Santos claims to have provided videos for these accounts, subject to licenses for personal use.  Mr. Kimmel then broadcast five videos on his show, Jimmy Kimmel Live, and on various social media accounts in a segment he called "Will Santos Say It?."  The answer, in every case is yes.  Some examples are below, starting at around 6:50 in.  Kinda lame actually.  Not great comedy.  Whatever.

Mr. Kimmel moved to dismiss the complaint, and Mr. Santos then amended the complaint.  I have not been able to find a link to the amended complaint online. Mr. Kimmel then renewed his motion to dismiss.  On August 19, the District Court dismissed the complaint based on the fair use doctrine.  Mr. Santos's claims for breach of an express or implied contract were duplicative of his copyright claims and thus were also subject to dismissal.

OpenAI: All You Really Need for a Contract Is an Offer

Contracts are all about efficiency. I make a promise to you; you make a promise to me.  If we both perform, we both will be made better off.  But how can I trust you to perform and how can you trust me?  Contracts law makes it so that neither of us will profit from breaking our promises, and due to litigation costs, we may be made worse off for failure to perform.  Thus contracts law contributes to the prevention of the economic waste associated with broken promises.

But traditional contracts require offer, acceptance, an exchange of consideration, and mutual assent. That's so many steps! Wouldn't things be more efficient if you could just make an offer and then have a contract? I mean, sure there could be problems with such a model, but what if the offeror is really, really confident that the offeree should accept their offer because it will be . . . like . . . really cool? 

Thus OpenAI proposes to make contracting still more efficient.  According to Nitasha Tiku, Pranshu Verma, and Gerrit De Vynck, all writing in The Washington Post, Sam Altman (right) of OpenAI approached Scarlett Johansson last September to be the voice of the company's AI voice system.  Ms. Johansson was an inspired choice because of her role in voicing the AI virtual assistant with whom Joaquin Phoenix falls in love in the movie her. I have not seen the film, but let's just say that, based on the plot summary I read, Mr. Altman's desire to embrace the AI voice of that film for his company's SI voice system seems problematic.  It's a typical story of boy meets AI virtual assistant, boy falls in love with AI virtual assistant, AI virtual assistant arranges for boy and her to be intimate through the use of a sex surrogate (it doesn't go well), AI virtual assistant falls in love with boy but also with hundreds of others, boy loses AI virtual assistant, because AI virtual assistant is much more into other AIs than she is into humans. This is the reality to which Mr. Altman seems to think we all aspire. Ms. Johansson turned down the offer.

Two days before the release of OpenAI's new "Sky" audio system, Mr. Altman reached out to Ms. Johansson again.  Before she could respond, OpenAI released a demo of Sky that people thought sounded very much like Johansson's voice in her.  Here's a demo of what it sounds like:

I don't know about you, but I did not think the AI sounded remotely human.  I mean that "Rocky" character just didn't seem real to me.  So robotic. At best, he was like what we might imagine coders imagine people to be like.  Oh, wait, he was supposed to be the real human?  Well, compared to him, yeah, I guess the AI voice sounded more human.

Ms. Johansson threatened legal action against OpenAI, presumably to enjoin the company from using her voice.  While Mr. Altman introduced "Sky" with a single word Tweet, "Her," the company now insists that Sky's voice is not based on the Samantha character voiced by Ms. Johansson in the movie her.  Rather, the company insists that it reviewed submissions from over 400 actors and chose five voices for its voice AI and paid the actors who voluntarily participated "above top-of-the-market" rates for the use of their voices.  The company also suspended Sky.

You know, you can't spell "suspend" without "sus".

David Beckham Sued Fitness Brand F45 in 2023, and It's Suddenly News

Ah, the frustrations of being a contracts law blogger.  According to Zachary Folk who covers "breaking news" for Forbes, David Beckham (right) first tried to sue F45, a company in which Mark Wahlberg owns a large stake, in 2022.  A judge dismissed that suit, in which Mr. Beckham joined forces with golfer Greg Norman, advising the plaintiffs to file separately. 

Mr. Beckham refiled his suit in March, 2023, but as such things go, everybody is covering the case now, although nobody is linking to any filings from the case, so I neither really know what is going on nor why the media are suddenly interested in the "breaking news" of a case that is already one-year into its existence.  I wonder if some publicist for one of the parties decided that some media attention might speed up the settlement process.

The essence of the case seems to be that Mr. Beckham did promotional work for the brand beginning in 2020 in exchange for "tradable shares" of the company when it went public, which was supposed to happen in July 2021.  The share price quickly tanked after the company's initial public offering in January 2022, and Mr. Beckham alleges that the company delayed delivery of his shares.  During the delay, Mr. Beckham alleges, the value of his shares dropped by $9.3 million.  He also alleges entitlement to another $5 million in shares that were supposed to be transferred to him in July 2022.  

The current valuation of the company appears to be about the same as what Mr. Beckham claims he is owed.  But he is not the only party suing the company, so there may not be much left for Mr. Beckham at the end of the day.

Mr. Beckham is no stranger to the world of contracts disputes.  In December 2022, we blogged about his agreement to help promote the World Cup in Qatar.  Apparently, that deal worked out pretty well, although Mr. Beckham was paid bucketloads of money and did relatively little to promote the World Cup, unless being vilified by his LGBTQ+ fans counts as fulfillment of contractual obligations.

NBC "Drops" Ronna McDaniel as a Paid Contributor

We recently discussed Elon Musk's decision to "cancel" contract with Don Lemon.  Now, we have news of NBC "dropping" Ronna McDaniel.  How does dropping accord with contract obligations?

Image by Gage Skidmore from Peoria, AZ, United States of America, CC BY-SA 2.0, via Wikimedia Commons

Ms. McDaniel was recently ousted as the Chair of the Republican National Committee (RNC).  She was replaced by Lara Trump. Trump, huh? I wonder if she's related to . . . .  Nah. Must be a coincidence. After all, Donald Trump placed Ms. McDaniel at the head of the RNC after she led his 2016 campaign in Michigan. He wouldn't turn on one of his most loyal supporters, someone who placed allegiance to Mr. Trump ahead of support for her Uncle, Mitt Romney, would he? Hey, Mike Pence, he wouldn't turn on one of his most important supporters would he?

Oh. Well, Lara Trump has little to fear. She's already married to Eric. How much worse can things get?

Almost immediately, NBC hired Ms. McDaniel to be an on-air commentator on political affairs.  Reports indicated she would be paid an annual salary of $300,000 to provide her insights. As Michael M. Grynbaum reported in The New York Times, NBC treated the decision to hire Ms. McDaniel as a coup: "It couldn’t be a more important moment to have a voice like Ronna’s on the team," as Ms. McDaniel could provide "an insider’s perspective on national politics and the future of the Republican Party.”

Ms. McDaniel debuted on NBC with some critical words for some members of her party, taking the bold position that one should not support people who violently attack Capitol police officers. Wow, that's strong leadership. When asked why she did not speak out against the violence of the January 6th protestors previously, Ms. McDaniel explained, that sometimes "When you're the RNC Chair, you kind of take one for the whole team." That little clip pretty much encapsulates how the GOP lost sight of who the "team" is. The party serves the country, you numbskull; not the other way around.  She should have "taken one for the team" by standing up to voices within her own party that support political violence in the naked pursuit of power at all costs.

Voices within NBC felt the same way I do. They demanded that NBC back out of the deal, and the NBC executives, showing little more spine than she did, capitulated. They have "dropped" her. In my world, "dropped" means that they are breaching their contract with her. She may have no damages, given that some other media institution may pick her up, but I don't think audiences on Fox, OAN, or Newsmax want to hear from her either. Do I hear CNN? 

If she can't find comparable work, NBC might have to pay her not to appear. I can't imagine that there is an audience out there clambering to hear from her. Nor is there any lack of conservative voices on NBC.  They have Marc Short, Mike Pence's former chief-of-staff, and Brendan Buck, an aid to Paul Ryan and John Boehner. Yeah, I know.  RINOs.

Ms. McDaniel would have had something unique to contribute to NBC news if she would have stuck to her MAGA guns.  It might be valuable for NBC to have a contributor who could honestly explain why the 2020 election was stolen and that the actions of the January 6th protestors were justified.  The challenge is to find such a person who can make those claims in a way that would be credible to non-believers. The problem is that mainstream Republicans act like they believe that the election was stolen or at least they refuse to contradict their party leader on that subject, but they have turned up no evidence of a stolen election that has survived ordinary scrutiny.  Ms. McDaniel's debut and farewell performance on NBC tells a damning story: when you get paid to lie, you lie, even if those lies have devastating consequences for our democracy. Ms. McDaniel likely has many good qualities and no doubt strives to be a good person. Yet, she has devoted her life to politics, and in that realm she simply does not know right from wrong. She is not alone.

Joseph A. Wulfsohn of FoxNews reports that Ms. McDaniel had a two-year contract with NBC for $600,000.  She is now seeking a $600,000 buyout.  

Elon Musk "Cancels" a Contract

Image by DALL-E

Dear Reader, I apologize.  I seem to have let a week go by without reporting on some batshit-crazy thing that Elon Musk did. This would be excusable, if Mr. Musk could go a week without doing some batshit-crazy thing. Alas, he cannot.

Some details of the story are a bit murky, but it seems pretty clear from the parties' statements and conduct that Mr. Musk and Don Lemon entered into an agreement.  The agreement seems to have been that Mr. Lemon would have an interview show on Mr. Musk's social media platform, Twitter, which he calls X.  None of the terms of the agreement are public, but presumably, there is money involved, as Mr. Lemon referenced the "financial terms of the agreement" in the story linked to below.

Mr. Lemon attempted to launch the project with an extended interview with Mr. Musk. Apparently, the two men had different ideas about what was supposed to happen during that interview. Parts of it got very testy. Mr. Lemon challenged Mr. Musk, asking him whether he had any responsibility to engage in content moderation of hate speech on his platform and posed questions about Mr. Musk's drug use and whether there could be national security concerns associated with that drug use. Sometimes, Mr. Musk refused to answer, saying that he didn't have to answer questions from reporters. True enough. Sometimes, he gave self-serving answers that certainly did nothing to quell concerns that a man who controls vital national security infrastructure uses prescription drugs recreationally and not just as a public service. You can see the interview here:

Martha McHardy, writing for The Independent, reports that the deal was "axed" just hours after the interview was completed.  Let the lawyerspeak begin.  According to Twitter, "L]ike any enterprise, we reserve the right to make decisions about our business partnerships, and after careful consideration, X decided not to enter into a commercial partnership with the show."  

That's all fine, except that the platform announced that it would be hosting Mr. Lemon's show in January.  When Mr. Musk "axed" the deal, he did so by texting Mr. Lemon's agent, saying "the contract is canceled."  So while the lawyers for "X" are saying "not-X," X's owner is saying X.

In my language, people who "cancel" a contract without cause pay damages, but only if those damages can be proven with reasonable certainty. In this case, there appears to be no signed writing evidencing the terms of the deal. That's okay; there doesn't need to be a signed writing here.  The issue will be whether what Mr. Lemon calls "the financial terms of the agreement" are specified in sufficient detail to support an award of damages.  It seems from the interview that the two men had never previously met.  Presumably, there is a paper trail here.

Some of these clips are actually revelatory of more than just Mr. Musk's prickliness. He sometimes gives serious, seemingly earnest, seemingly truthful, although brief, answers to Mr. Lemon's questions.

A couple of notes. For much of the interview, Mr. Musk's affect is pretty normal.  He engages with Mr. Lemon in a fairly direct, straightforward way. Sometimes, when he doesn't want to answer a question and also doesn't want to refuse to answer the question, there are long pauses, and his eyes dart back and forth and you can almost hear him pondering, "What can I get away with saying here that will not get me into trouble and will also not be a bald falsehood?"  It's not a terrible thing for a thoughtful person to do, especially if the valuation of several companies turns on the answer.

One part of the interview that struck me as really odd was the question of whether CNN is a liberal media organization.  Mr. Musk insisted that "everybody thinks of" CNN as a left-wing media organization, and he implied that Mr. Lemon, having worked for CNN, is also part of the woke mob, or something akin to that. I don't watch cable news, even though I am now over sixty, and I think I have to turn in my AARP card if I'm not addicted by 65. I operate on the perhaps outmoded assumption that the three major cable news organizations had staked out their claims to the American right (Fox), left (MSNBC), and center (CNN). Now I believe there are two smaller companies to the right of Fox.  If CNN is now considered leftist, it may be evidence of the impact of the Trump presidency on the American political spectrum.

In any case, in the interview, Mr. Lemon posits, and Mr. Musk affirms, that Mr. Musk wanted Mr. Lemon's show to stream on Twitter because Mr. Musk wants his website to be a place where one can find content across the entire political spectrum. But then, according to Derrick Bryson Taylor writing in The New York Times, Mr. Musk explained that he was "canceling" his contract with Mr. Lemon, Mr. Musk complained that Mr. Lemon's approach "lacked originality" and was just "CNN on social media." There seems to be some tension between what Mr. Musk said in the interview and what Mr. Musk said in dissing the interview. Even if Mr. Musk wants to characterize his decision to cancel the contract as commercial rather than political, he should have made that determination before committing to have the show stream on his website. Did he really think the Don Lemon show on Twitter would be nothing like CNN Tonight with Don Lemon?

That kind of magical thinking is not how we will get to Mars.

Friday Frivolity: Offer to Enter into a Unilateral Contract from John Oliver

Image by Neil Grabowsky / Montclair Film Festival, CC BY 2.0 via Wikimedia Commons

Offers to enter into unilateral contracts provide frequent blog fodder.  Elon Musk offered Wikipedia $1 billion if it would change its name.  He did something similar, offering to pay legal fees for people who faced adverse employment decisions for posts on Twitter.  James Corden gave us food for thought here.  Celebrities offer very high rewards for the return of their lost or stolen pets. Burma Shave offered a trip to Mars.  In all of these cases, the offeror seems to have made the offer for non-contractual reasons.  They never intended to make good on their offer.  They were just trying to make some point unrelated to mutually beneficial transactions. 

John Oliver (left) seems to be doing something very different. On his show last week, John Oliver produced a document that he described as "a contract," in which he, in his personal capacity, offered to pay Justice Clarence Thomas $1 million/year for the rest of his (or John's ) life if Justice Thomas would agree to step down from the U.S. Supreme Court.  To sweeten the deal, John also threw in a luxury motor coach worth $2.4 million.  He gave Justice Thomas thirty days to accept the offer.  He said repeatedly that his was a serious offer, and I think he meant it.

Unlike other unilateral offers discussed in this space, John Oliver's offer seems genuine.  He seems like he actually wants Justice Thomas to take the offer.  Paying Justice Thomas $1 million a year might be painful for John, but I suspect he will make it back by having cemented his reputation for the rest of his life as a legend of political comedy.

Gina Carano Strikes Back!

Image by Gage Skidmore
CC BY-SA 3.0

This case was brought to my attention by our blog's Founder and Editor Emeritus Frank Snyder.  He posted a link to the case on the AALS Listserv for contracts professors, and discussion ensued.  I acknowledge that what follows is indebted to that discussion, and I thank my colleagues for alerting me to the issues raised in the litigation.  

ADDENDUM:  Just learned via Riddhi Setty writing on Bloomberg.com that Gina Carano's suit is being funded by Elon Musk.  This makes sense, given Mr. Musk's earlier offer to pay the legal bills of anyone who claims that they were unfairly treated by an employer due to Twitter posts.  Musk v. Disney seems like a good match-up.

On February 6th, mixed martial arts fighter, actor, and professional bad-ass Gina Carano (Ms. Carano, right) filed her complaint against The Disney Company (Disney) and others.  The case is of interest not only because of Ms. Carano's success in her role in the Star Wars/Disney series, The Mandalorian, among other boundary-breaking performances, but also because of the interesting legal issues raised by her complaint.

The Complaint alleges that Disney wrongfully terminated Ms. Carano based on the political content of her social media posts made while away from work.  She further alleges that Disney discriminated against her as a woman, as men who posted similar things on social media did not suffer the same adverse employment decisions.

According to the Complaint, Ms. Carano's character, Cara Dune, was a key element in the success of The Mandalorian.  Undoubtedly, she had more rizz than the faceless protagonist, but nobody on that show could compete with the adorable muppet, Grogu, known to fans as "Baby Yoda" (below left).  She was paid only the applicable minimum salary of $25,000 per episode.  Late in 2020, Jon Favreau, who created The Mandalorian, allegedly represented to Ms. Carano that she would be featured in a new spinoff series, for which her compensation would increase as much as tenfold.

Then, in February 2021, Defendant Lucasfilm made the following announcement:

Gina Carano is not currently employed by Lucasfilm and there are no plans for her to be in the future. Nevertheless, her social media posts denigrating people based on their cultural and religious identities are abhorrent and unacceptable.

Carano characterizes this and other statements by defendants as calculated, malicious, false, and knowingly in violation of California statutes that protect employees from persecution for their political beliefs.  She alleges that, based on such false allegations, Disney not only terminated her but also refused to hire her for additional projects. 

Issues:

Was Ms. Carano an Employee?

Ms. Carano's first cause of action is for wrongful discharge under California Labor Code §§ 1101, et seq, which prohibits employers from "[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of employees."  One issue that may arise in the case is whether she comes within the ambit of the statute.  She may have not have been an employee at the time that Disney announced that her "termination."  After all, according to the Complaint , in announcing Ms. Carano's termination, defendant Lucasfilm said that she was not "currently employed." 

While her employment status might be relevant to her first cause of action, her second cause of action is for both wrongful discharge and refusal to hire.  So even if Ms. Carano was not an employee for the purposes of here §1101 claim, she would not need to be for her claim under California Labor Code § 98.6.  That section prohibits adverse employment actions against "any employee or applicant for employment" for conduct protected under §§ 1101 et seq.  

Ms. Carano cites to various projects of which she was going to be a part.  The problem is that, with the possible exception of a Mandalorian movie, the projects she mentions do not seem to ever have been made.  I think that might move her alleged harm into the realm of speculation.  If I had a dime for every time someone has approached me with a movie treatment based on this blog, well . . . you can do the math yourself.

Her third claim is sex discrimination, because male employees who engaged in expression similar to hers were not subject to termination.  I think the challenge here will be to show that the other expression is similar in legally relevant ways and to show that Disney had no non-discriminatory ground for deciding to end its relationship with Ms. Carano.  Ms. Carano cites to a social media post by Mark Hamill in which he linked to something from J.K. Rowling and "liked" it.  When people objected to the allegedly transphobic content of Ms. Rowling's post, Mr. Hamill issued a retraction of his "like" to the extent that it extended to that message.  Ms. Carano, by contrasts, insists that she has never, ever engaged in expression that was remotely objectionable.  To a company that cares about its image and disagrees with Ms. Carano's characterization of her social media posts, her refusal to acknowledge poor judgment may be a ground for treating her differently from those willing to recognize error.

Was Her Speech Covered by the Statute?

Disney may claim that her conduct was not "political activity" in the sense of the statute.  Here, the Complaint has to walk a rather narrow line.  On the one hand, Ms. Carano insists that her social media posts did not have the meaning ascribed to them by her detractors.  She insists that there was nothing in her posts that was racist, anti LBGTQ+, or transphobic.  On the contrary, she communicated only messages of love and support for people who are targeted for bullying.  Based on her own account of the events, it is a little hard to identify her political activities. 

She notes that other Disney employees engaged in more overt political statements and suffered no adverse employment effects.  But that may be a product not of whether Ms. Carano or her co-workers were people who were associated with the Star Wars brand were engaging in political activity but whether they were engaging in speech that the audience for Star Wars found objectionable.  Which brings us to our next topic . . . .

If Her Contract Has a Morals Clause, What Impact Does that Have on the California Statute at Issue?

This was the topic that Frank Snyder first broached on the AALS Contracts Listserv, and I, having no expertise in employment law, admit that I do not know the answer.  One would think that a morals clause would have to be interpreted in a manner consistent with California's Labor Code.  My hunch is that the case should turn on whether Disney's interest in enforcing its morals clause involved reasons unrelated to the allegation that Ms. Carano was engaged in political activity.  She was attracting a lot of negative attention on social media at the same time as she was emerging as the human face of The Mandalorian. The series' eponymous character (right) never shows his face (except for that one time when he did).  He is, according to the actor who plays him, "of questionable moral character." We don't even learn his name until episode 8.  Grogu is cute and all, but he's not human.  Ms. Carano's notoriety on social media may just be bad for business, bad for the brand, and they may have distracted attention from the heartwarming story of an isolated intergalactic mercenary with an inexplicable attachment to a child of an alien species with potentially gnarly powers but, if his predecessor is any indication, no hope of ever mastering standard English usage.

The Style of the Complaint

The Complaint's Introduction begins as follows:

A short time ago in a galaxy not so far away, Defendants made it clear that only one orthodoxy in thought, speech, or action was acceptable in their empire, and that those who dared to question or failed to fully comply would not be tolerated. And so it was with Carano. After two highly acclaimed seasons on The Mandalorian as Rebel ranger Cara Dune, Carano was terminated from her role as swiftly as her character’s peaceful home planet of Alderaan had been destroyed by the Death Star in an earlier Star Wars film. 

I have two problems with this way of introducing legal claims to a court.  First, the lame jokes and references to Star Wars themes undermine the seriousness of the document and of Ms. Carano's claims.  Of course, this blog is not above lame jokes and references, but we're a blog.  There's a time and a place.  Second, by casting the defendants in the role of the evil "empire "seeking to enforce "orthodoxy in thought, speech, or action" Ms. Carano risks having this lawsuit dismissed (by the public, if not by the court) as a chapter in the culture wars rather than an attempt to vindicate her legal rights.

The problems go beyond the introduction.  Pages 10-25, 28-30 of the Complaint consist of long-winded  detours into alleged online harassment of Ms. Carano by people other than defendants.  As far as I can tell, all of this information serves only to show why Disney might have had apolitical concerns about Ms. Carano's activities on social media.  It is not clear that any of this is otherwise relevant to the legal narrative Ms. Carano is trying to tell if she is seeking to vindicate her legal rights. It is highly relevant to the narrative she is trying to tell if she is attempting to burnish her credentials as a victim of the culture wars.  I don't think it is helpful in a Complaint to make the court feel like it is a platform for an agenda.

What's Not in the Complaint

Given the allegations in the Complaint, I'm not sure why there aren't more causes of action.  It seems like Ms. Carano thinks that the defendants have said and published statements about her that she believes are malicious lies.  That seems like a claim right there.  She also alleges that defendants not only wrongfully terminated her and refused to hire her for future projects; they also interfered with her efforts to procure other employment in the industry, including perhaps by pressuring her agents to sever ties with her.  That too, seems like a claim.  Perhaps an amended complaint is coming.  Perhaps I don't know what I'm talking about.

Take the Money and Run, Pass, or Kick

Recently, Sid DeLong wowed us with an interesting perspective on the case of Danish performance artist Jens Haaning.  As readers of the blog well know, Haaning was commissioned to produce artwork incorporating $70,000 in Danish currency that the commissioning museum advanced to him for incorporation into the work.  Hanning never provided the work; instead, he delivered two blank canvases entitled Take the Money and Run.  

No biggy, Sid pointed out.  People get paid for doing nothing all the time.  Farmers get paid not to plant crops when the government is trying to control against overproduction.  Young William Story was entitled to collect from his Uncle William for successfully abstaining from certain corrupt behaviors before turning twenty-one.

Image by Ethridgem, via Wikimedia Commons

But if you really want to get paid the big bucks for doing nothing, I recommend coaching.  As I learned from Bobby Chesney and Steve Vladeck on their excellent, most recent, edition of the National Security Law Podcast, Texas A & M University is paying Jimbo Fisher (right) $75 million for not coaching its football team between now and 2031.  

Doug Lederman provides some details in Inside Higher Education.  According to the story, Mr. Fisher's contract was renewed in 2021 for ten years, and the contract was guaranteed, which meant that he would be paid whether or not he continued as coach.  You might be wondering how the taxpayers of Texas feel about having their money being used in a Bobby Bonilla style boondoggle.  The answer is probably that they are fine with it.  What's government for if not for building college football programs?  But just in case Texas taxpayers have other priorities, the university stresses that the $75 million will not come out of the university's regular budget but from "donor funds."

This strikes me as a relatively transparent shell game.  That $75 million in donor funds that will be going into Mr. Fisher's pocket are $75 million that the university might use for other, presumably sports-related, purposes.  And if the university cannot raise more private donor funds to attract its next football coach, or football stadium, or training facility, or whatever else it needs, the money to cover these new costs will indeed come from university funds that might have been used for, I don't know, educational purposes?

Last I checked, the Texas A &M football team is not ranked in either the AP nor the Coaches poll, nor did they have any votes in either poll, meaning that nobody polled thought that they were a top 25 team.  CBS Sports ranks them at 37.  Meanwhile, Texas A & M's law school is ranked 29th.  By my math, that ranking should entitle the law school's Dean to a guaranteed ten-year contract worth at least $85 million, and some portion of that money ought to go to the Blog, given that the Blog was founded by Texas A & M law faculty member Frank Snyder (left), and Texas A & M faculty member Mark Edwin Burge (right) continues to serve as a contributing editor.  Even a million or two would go a long way towards meeting the Blog's pressing fiscal needs.  I'm not asking for much.

One might think that Mr. Fisher will not in the end actually collect his $75 million from Texas A & M or its donors, because of the duty to mitigate.    But we've been down this path before on the blog, and I think we discovered that coaches who depart with guaranteed contracts do not have a duty to mitigate.  Mr. Fisher is perfectly free to move on to his next gig, command another Brobdingnagian salary, and continue to collect his spoils from Texas A & M.  In our world of the parable of his talents, this is righteousness.  Not compounding his windfall with greater lucre would be regarded as a wasteful, and Mr. Fisher would be consigned to that outer darkness, complete with ambient weeping and gnashing of teeth.

Weekend Frivolity: Contractual Chivalry

We learned from Simon Gallager, writing on Screen Rant,  that director Matthew Vaughan quit as director of the X-Men III movie, despite his great success with earlier iterations of the franchise.  Mr. Vaughan claims that he quit in protest of a dirty trick that the studio was planning to play on Halle Berry (right).

According to Mr. Vaughan, the studio was trying to lure Ms. Berry back into the sequel by representing that it would have a much more prominent story line for Ms. Berry's character, Storm, than they actually planned to give her.  Mr. Vaughan discovered the script and thought it was an interesting idea -- it opened with Storm saving an African community during a drought by -- you guessed it! -- making it rain.  The executives told Vaughan that the script was just a ploy to get Ms. Berry to sign on for the sequel.  Once she had signed, their plan was to pitch the script . 

Mr. Vaughan took note of how they treated an Academy Award winning actor and decided he did not want to work for the studio.  Vaughan got the "You'll never work in this town again" speech.  I thought it was "You'll never have lunch in this town again." No? Anyway, he came back and made another X-Men film . I'm sure it was great.

All's well that ends well, I suppose.  Ms. Berry did get a larger role in X-Men, although there was no scene in which Storm saves Africans from a drought.  Instead, she took over Charles Xavier's school for mutants.  Taking over for Patrick Stewart?  Tough act to follow, but a nice coup for Ms. Berry.

The story highlights one of the many areas where my life experience as an academic limits my knowledge of how contracts work in the real world.  Clearly, scripts change in production all the time.  Scenes, perhaps whole characters perish with the other detritus on the cutting room floor.  We all know of Shirley MacLaine's case over Bloomer Girls, and Sandra Locke's suit over "Clint's deal."  I can't recall a suit over an editing decision.  Is there relevant contract language?  Does relational contracts theory explain why such suits rarely arise?

Instead of X-Men III, Mr. Vaughan made Stardust, an adaptation of a Neil Gaiman novel.  What the heck was I doing in 2007?  Claire Danes, Robert DeNiro, Michelle Pfeiffer, and a host of others!

Will Katie Perry Be Known for Music or the PERRY Act?

Today's post was another gift from Miriam Cherry, that Holmesian gatherer of rare gem-like contracts stories.  She is as indefatigable as Sherlock and as legally savvy as Oliver Wendell. 

Katy Perry, as far as I can recall, is famous for having been creative enough to coin a singular for "fireworks" but not creative enough to find a word that actually rhymed with "firework."  "Worth"?  Nope.  "Burst"?  Nope.  Here's one that might be coming to your minds now:  "Jerk."  She is also known for her "left shark" dancer below.  

But she also is very into real estate.  We reported before about her attempt to buy a convent. She won that case, and only one nun died in the process (that we know about).

More recently, according to TheRealDeal, she and her husband, Orlando Bloom, attempted to purchase the Montecito estate of Carl Westcott, of 1-800-FLOWERS fame.  The sale price was $15 million, but Mr. Westcott, who is now 84 years old and suffers from Huntington's Disease, claims that he was not of sound mind when he agreed to the sale, not necessarily because of age or disease, but because he had just undergone a six-hour back surgery, and he was on pain medication.  Three years later, the parties are still embroiled in litigation.  

In order to avoid such problems in the future, some have proposed the Protecting Elder Realty for Retirement Years Act, or Katy PERRY Act.  According to its website, 

The Katy PERRY Act addresses the risks of elder financial abuse, especially as it relates to property and real estate sales and transfers. The Act establishes a 72 hour cool-down period during which either party involved in a contract for conveyance of a personal residence, in which one party is over the age of 75, can rescind the agreement without penalty.

If that Act had existed a few years ago, it might have prevented a firework.

Taylor Swift Has the Cure for COVID! And It Involves Contracts Law!

Image by Cosmopolitan UK,
CC BY 3.0, via Wikimedia Commons

Is there anything that woman cannot do?  Clearly, she can do anything she sets her mind to do, and if reviving the struggling movie theater business, with carry-on effects for shopping malls and other venues, is a positive externality of Taylor being Taylor, then so be it.  

For those of you who have avoided all human contact for the past decade, Taylor Swift (left) is a singer/songwriter who has had a number of hit songs.  Her international "Eras Tour" broke all imaginable records for successful concert tours, broke the Internet when tickets went on sale, and even generated a seismic event that registered 2.3 on the Richter scale, reportedly due to 70,000 white people trying to dance simultaneously to "You Belong With Me."  

As someone who does not particularly care for Ms. Swift's music but is surrounded by people who do, I have had no choice but to learn some of the details of her career.  So, I know that Ms. Swift does not like to share revenues with media industry bloodsuckers, like record labels and (now) movie studios.  

She has made headlines once again by leaving the studios out of the deal that will bring the Eras Tour to a movie theater near you.  Taylor Swift and her parents have cut the studios out of the process of financing and distributing the film version of her fabulously successful tour.  As Chris Eggertsen, reports on Billboard, the proceeds of the enterprise will be split, with 43% to be shared by the 1000 theaters at which the movie will be shown and 57% to be split between AMC and the Swift family.  Billboard reports (and I find this hard to fathom) that the theaters get to keep proceeds from concessions (fair enough) including from the sale of bespoke Taylor merch to be sold at the screenings (I'll believe it when I see it).  Theaters must agree to show the film for at least four weeks and may keep it up for as long as 26 weeks.  Taylor Swift now aims to beat Starbucks for market penetration.  

And of course, the records for sales for a new movie are dropping like flies.  The movie is not going to be released until October, but it seems like a safe bet that the Swifties will not lose their enthusiasm between now and then.  More likely, only Taylor-inspired bonding will prevent them from beating each other with friendship bracelets as they jostle for position in line.  No studio wants to release anything anywhere close to the release date for Ms. Swift's film, and for the first time in years, there is actually reason to buy AMC stock -- and not just to piss of the investment banks!  If there is a corresponding video game, I would recommend investing in GameStop next. One can anticipate people flocking back to theaters and the shopping malls that house them.  Social behaviors that we had completely forgotten about will return, and before long, we will re-familiarize ourselves with pre-pandemic life.  People will return to work, if only because the water-cooler conversations will now become opportunities to compete for the honors of having seen the movie the most and having bought the most Eras Tour merch.  And all thanks to Ms. Swfit!  

I am a lifelong Cubs fan.  I thought I would never get tired of the song "Go, Cubs, Go."  Then they won the World Series.  The weekend of the victory parade, I took a train into Chicago to attend Loyola Chicago's annual Constitutional Law Colloquium.  The train lasts about an hour, and my fellow Cubs fans were irrepressible, breaking out into song at the slightest provocation and with no regard to pitch or timbre.  I was relieved to step off of the train at my destination station, where "Go, Cubs, Go" was playing over the public address system.  I'd had it.  I was officially tired of the song.  Will the Swifties ever tire of their darling.  All signs point to no.  Well, let them enjoy their pleasure.

Twenty-six weeks may be enough, but expect it to have an afterlife akin to that of the Rocky Horror Picture Show, with dedicated Swifties heading out week after week to the Saturday night showing of The Eras Tour, complete with a pre-show costumes, Karaoke contests, and Taylor-wannabe talent shows.  And of course, the entire concert will be a sing-along punctuated by shrieks and shouts of adoration directed at the image of the singer.

AMC has visions of "Taylorstyle" deals moving forward.  That seems unlikely.  Her charms are lost on me, but they are undeniably unique and powerful.  I cannot think of another performing artist who could replicate this deal.  Maybe Beyonce? And just so that my Swiftie students will actually look at this blog, here's the trailer:

 

Book Contracts and Supreme Court Ethics

Many have lamented the fact that the U.S. Supreme Court is the only federal court in the country not bound by the federal Code of Conduct.  As Robert Barnes reports in The Washington Post, Chief Justice Roberts  rejected calls for the court to adopt its own ethics code.  Even if it were to do so, it is hard to imagine how it would be enforced. 

Justice Alito (left), in an interview with the Wall Street Journal (behind a paywall), said (as quoted in John Kruzel's reporting in Reuters), "No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period."  That is manifestly untrue and manifestly irrelevant.  It is untrue because the Constitution grants Congress the authority to impeach Supreme Court Justices.  That is a constitutional mechanism of regulation.  But even if there were no express provisions in the Constitution, the system of checks and balances that the Constitution creates gives rise to implied congressional powers to regulate the Supreme Court.  Justice Alito, who with his colleagues regularly engage in the practice of constitutional review, is undoubtedly aware that there are constitutional powers that exist notwithstanding the lack of any express constitutional provision to which one can point as the source of that power.  

Notwithstanding strong arguments for Congress's power to regulate the ethics of Supreme Court Justices, it has not exercised that power.  The remedy for ethics breaches by Supreme Court Justices, as things stand, would be impeachment, but it is hard to imagine any ethics lapses that would garner 67 votes for impeachment in the Senate.  

Which brings me to the topic of Justice Sotomayor's book tours.  It is very common for authors to promote their books.  For example, you might be interested in an edited collection of essays on Hans Kelsen in America.  There.  That was pretty shameless, wasn't it?  Unethical?  I don't know.  There is no code of ethics for law blogs.  See what I did there?

If an author is a celebrity, they have far more opportunities to promote their books, and some of those can be quite lucrative.  It is perfectly normal for an author to arrange readings and signings and to have the publisher ship books to the location where the reading will take place.  For celebrities, having people line up to have you sign their books is a great way to get people to buy the book, and the author may not mind if many of them don't read past the inscription.

But it is arguably a different matter when a Supreme Court Justice profits from such tours, and those tours raise ethical questions if hours of Court time are devoted to preparing for the book-related events and to pressuring hosts of book readings/signings to buy thousands of copies of the book.  According to Brian Slodysko and Eric Tucker, writing for the Associated Press, Justice Sotomayor (right) has earned $3.7 million through book sales since she joined the Court, and she was involved in book-related events, including one that involved Michigan State University's purchase of $100,000 worth of Justice Sotomayor's memoir.  The story indicates that Court staff not only coordinate book tour events but pressure the hosts of such events to purchase far more copies of the books than they originally intended.

Some of the story, as reported, doesn't make a whole lot of sense.  The story suggests that Justice Sotomayor had thousands of book sent to her chambers for signing.  That strikes me as absurd.  You don't sign 11,000 copies of your book and then give a reading at which people line up to have you sign your book.  I suppose it is possible that they sign up to get an inscription beyond the signature, but from a marketing perspective, that seems like an odd way to do things.  But the AP report has documents showing that thousands of books were sent to the Supreme Court.  Given the large advance and royalties the Justice earned through this publication, there is no reason why Court resources should be involved in its distribution.  The publisher is making a lot of money here; let it send some low-level staff to organize the signing event and arrange for the shipment of the books to the relevant venues.  The signings can take place . .  . at the book-signing events.  Book publishers ought to know more about how to run such an event than Court staff.  And Supreme Court Justices have better things to do with their time than sign their names 11,000 times.  So does Bob Dylan, as we discussed here.

In my view, the country would be better off if Supreme Court Justices were not all millionaires, but given the extent to which members of Congress are able to enrich themselves, Congress is in no position to scold the Justices for profiting from their status.  In the current environment, it is hard to see how book royalties, regardless of their magnitude, can constitute an ethics violation, and I see a lot of value in the book tours.  They get the Justices out of the Beltway and give them opportunities to engage with ordinary citizens.  To the extent that people come up to have their books signed, that is an opportunity for one-on-one interactions with a Justice, which can be inspiring -- especially for young people -- in so many ways.  With Justice Sotomayor, there are issues because her publisher had business before the Court, and she failed to recuse herself.  It appears that she acknowledges that this was wrong and attributes it to a gap in the Court's conflicts processes that has now been addressed.

In this case, and in every case involving Justices profiting from their celebrity and possible misuse of public resources, Justice Sotomayor is entitled to argue that she had no idea that her conduct might raise ethical scruples.  If she were so inclined, she could point to other instances of similar conduct by other Justices or she could simply raise rhetorical questions about why Justices should be expected not to do what other authors do without raising hackles.  But with an ethics code in place, Justice Sotomayor would not have to make such arguments.  She would know the bounds of permissible behavior, and she would not act outside of those bounds.

Court Grants Preliminary Approval to Settlement of Class Claims Against Trump Campaign

Last week I defended Donald Trump against allegations that he had broken a promise to buy "food for everyone."  That gives me the credibility I need to cover the settlement of a class-action lawsuit against the enforcement of the 2016 Trump campaign's standard non-disclosure agreement (NDA).  We are nothing if not fair and balanced at the ContractsProf Blog.

We have covered Trump NDAs before here, here, here, here, here, here, here, and here.  In sum, I think there are two main takeaways.  First, Donald Trump and organizations associated with him love NDAs.  Second, they tend to draft NDAs that are so preposterously overbroad as to be unenforceable.  The litigation does not go well for Mr. Trump and affiliated entities, and they do not seem to learn any lessons from the experience.  They keep losing and losing and yet never get tired of losing. 

Maggie Haberman reported in The New York Times back in February that the Trump campaign had agreed to pay $450,000 to settle claims brought by Jessica Denison on behalf of herself and all others similarly situated.  Ms. Denison is to receive $25,000, and the rest will go to cover attorneys and court costs.  Ms. Denison alleged abusive treatment and sexual discrimination by a member of the campaign team.  The aim of settlement was to invalidate the NDA and free others to speak about their experiences as part of the Trump team during the 2016 campaign, and Ms. Denison is bringing her claims in a separate suit.  

In a June 7, 2023 order, the District Court noted its earlier order, invalidating the NDA as to Ms. Denison.  She sought an order invalidating it as to at least 422 potential class members.  That proved unnecessary, as the Campaign agreed in writing to release everyone associated with the Campaign from obligations created by the NDAs.  The Court further certifies the class and sets out procedures for notice to class members and a schedule for final approval of the settlement.

Reefer Brief: Ignite International in Contract Dispute with Consulting Firm

FILMORA NEWS, CC BY 3.0, via Wikimedia Commons

According to Law360 (behind a paywall), a Nevada District Court has ordered Instagram Celebrity and CBD oil entrepreneur Dan Bilzerian (left) to pay $1.6 million and dismissed a breach of contract claim.  Prior to that decision, the case generated a lot more heat than light. 

There are some larger-than-life characters involved.  Dan Bilzerian is the son of Paul Bilzerian.  According to Wikipedia, Paul was a successful entrepreneur and takeover specialist until he ran into trouble with the SEC and was jailed in the early 199os.  After his release from prison, Paul launched a Utah-based software company, Cimetrex, but the government confiscated his ownership interest in that company in 2002.  Paul declared bankruptcy in 1991 and again 2001, but, according to Dan Bilzerian's Wikipedia entry, the government alleges that he concealed assets, passing some of them on to his two sons.  It is unclear whether Dan used those funds or his poker winnings to fund his companies, Ignite International Brands and affiliated entities (collectively Ignite).  Paul played a role in the negotiations between Ignite and a consulting firm, Consulting by AR (AR) .

Piecing together the nature of the dispute from redacted pleadings found on Westlaw, Alan Richardson, AR's principal, reached out to Dan Bilzerian in January 2021 to offer his consulting services in assisting Ignite in gaining a marketing foothold in Las Vegas.  Ignite, in case you were wondering, markets vaping products, spirits, apparel for people who prefer not to leave much to the imagination (based on the website), and at least at one point, a CBD-infused lip balm (hence its presence on the Reefer Brief).  AR hoped to link Ignite's products with Las Vegas's newest casino and resort, Resorts World Las Vegas (Resorts World, below right)).  The parties entered into a letter agreement in March 2021, providing that AR would be compensated with stock in Ignite should an agreement with Resorts World be completed by July 1, 2021.  

Problems arose according to AR's counterclaims, with Dan Bilzerian demanding a better deal than the one originally negotiated. AR claims that it successfully negotiated terms more generous to Ignite than those in the original letter agreement.  In April, 2021, the parties entered into a Letter of Intent, the terms of which provided for a strategic partnership between Ignite and Resorts World.  Dan Bilzerian then appeared at Resorts World's grand opening in June 2021, as required under the letter agreement.  Afterwards, AR claims that it facilitated an updated letter agreement, with terms still more favorable to Ignite than previous iterations had been.  

Logan Frick, CC BY-SA 4.0, via Wikimedia Commons

Thereafter, AR alleges that Ignite ceased to cooperate with AR, refused to pay any compensation to AR, and accused AR of poisoning its relationship with Resorts World.  After an exchange of letters relating to the possibility of arbitration, AR sent a demand letter.  Paul Bilzerian wrote to Alan Richardson, urging settlement.  Here are some excerpts from that letter as cited in AR's counterclaims;

Hi Alan, I understand that your lawyer sent a letter to Ignite that essentially said either Ignite accedes to your demands or suit will be filed next week. I know Ignite will not be happy with this response so it is pretty clear where this is headed at the moment. . . .  Of course your lawyer will tell you that you have a great case and can't lose. I have heard that speech so many times over the past 43 years I lost count decades ago. . . .  You do have some goodwill left on the Ignite side which is why Paul Holden [Ignite's general counsel] suggested binding arbitration. . . .  All you need to do is choose the path you want to follow: prompt, cost effective settlement or bitter, costly, scorched earth litigation with the only winners being the lawyers. I hope you make a good choice.

Notwithstanding this letter, it was Ignite that filed suit, seeking a declaratory judgement.  AR counterclaimed.  The parties have spent much of the intervening period in discovery disputes.  It did not go well for Ignite.  Here, for example is an August 2022 decision of the District Court ordering Ignite to file under seal 65 documents allegedly subject to claim of privilege.  Here is a March 2023 order, finding Ignite in contempt for its failure to do so.  The $1.6 million judgement followed just weeks later.  We will see if the Bilzerians pay for a quick end to the matter or, take Paul Bilzerian's road oft-traveled road of scorched-earth litigation with the only winners being the lawyers.  Either way, he will have been proven correct.

Ignite filed its appeal with the Ninth Circuit on April 28, 2023.  Perhaps they did so, like King Croesus, based on the advice of the Delphic oracle, who said, "If Ignite makes war upon AR Consulting, it will destroy a great empire." 

Metropolitan Opera Ordered to Pay $200,000 to Putin Stan Anna Netrebko

We have been posting occasionally on the interaction of the Russian war against Ukraine on the blog.  The most recent such post is here.  Today, care of  Javier C. Hernández and The New York Times, we have a new installment.

By Kremlin.ru, CC BY 4.0

Russian soprano Anna Netrebko (pictured at right receiving the State Prize of the Russian Federation) was scheduled to perform at the Metropolitan Opera in Don Carlo this season and La Forza del Destino and Andrea Chénier next season but the Met cancelled those performances when Ms. Netrebko refused its demand that she denounce Vladimir Putin after the Russian invasion of Ukraine.  

An arbitrator awarded Ms. Netrebko $200,000 under a "play or pay" clause in her agreement with the Met, finding that her support for Putin did not rise to the level of moral turpitude nor was it actionable misconduct.  However, the arbitrator did fine her $30,000 for "highly inappropriate" statements on social media.  The Met has also terminated Ms. Netrebko's husband, tenor Yusif Eyvazov, who was slated to perform in Tosca.  The Met says that they will compensate Eyvazov.  Ukrainian soprano Liudmyla Monastyrska will sing the role of Tosca in four performances.

Admittedly, Netrebko is in a tough spot.  Facing cancellations throughout the West (but she has performances scheduled in Vienna and Milan), she has attempted to distance herself from Putin saying that she met him only a few times, but the penalties she might face in Russia were she to denounce the invasion could be far more grave that losing a gig at the Met.  As Radio Free Europe/Radio Liberty reports, Putin recently signed into law a new provision in Russia's criminal code that provides for up to fifteen years in prison for "false news" relating to the Russian military.  Helen Sullivan reports in The Guardian on Alexei Moskalyov, whom Russian authorities tracked down in Belarus after he attempted to escape form two years of house arrest, in part because of anti-war drawing by his 13-year-old daughter.  She was removed from his care and placed in a state-run rehabilitation center.  

Warner Bros. to Paramount: Screw You Guys, I'm Going Home!

I learned from OCU 1L Austin Manley that the South Park guys seem to have sold exclusive rights to their show twice.  Well, maybe not.  It's a matter of interpretation. 

As Gene Maddaus reports in Variety (complaint at the bottom of the story), HBO's parent company, Warnermedia Direct is suing Paramount and others for breach of a 2019 deal in which HBO claims it won an intense bidding war by offering  $500 million for an exclusive license to stream episodes of the South Park animated television series, including three seasons' worth of new episodes.  It's a nifty little contract interpretation/good faith issue, because while HBO has the exclusive right to stream episodes of the regular South Park series, Paramount is claiming to have retained the rights to stream specials and other content.  HBO is screaming, "You bastards!"

But it gets worse: HBO claims it was promised at least ten episodes per season, but it has gotten only only eight, with six more slated for the third promised season, giving HBO a total of only fourteen of at least thirty promised episodes.  Because new episodes are far more valuable than the library of old episodes, HBO claims, what it got is worth far less than the $500 million it paid.

Sidebar: really?  I mean, yes, usually, I would be far more interested in new episodes than old episodes, but I haven't watched South Park in over a decade.  Have I missed anything?  Recently I warned my students that because nobody comes to my office hours, they should probably send me an e-mail to let me know they are coming.  Otherwise, I forget that I'm holding office hours, pull a Towelie, and just wander off.    Crickets.  According to the Complaint, "South Park is premium content and a top performer, especially with the highly prized 18-34 audience that is dedicated to the show and engages in repeated viewing."  My students don't even know who Towelie is.  So if old fans of the show (me) aren't watching the show, and my students are not watching the show, why are new episodes valuable? My students are within the 18-34 target audience, and either they are not watching the show or they are gaslighting me.  And if I were willing to shell out money for HBO Max, I would be far more likely to watch old episodes than new.  I have access to all 3,759 seasons of The Simpsons, but I'm mostly interested in Seasons 2-5.

Image by Gage Skidmore, CC BY-SA 3.0 

But wait, there's still more.  Paramount, through its subsidiary MTV, has announced a $900 million deal with the South Park creators, Trey Parker and Matt Stone (above), for exclusive South Park content to run on Paramount +.   Why can't stuff just be on TV like it used to be?  The new content is not "episodes" Paramount maintains; it is "movies," "films" (is that just movies shot in black and white?), and "events"?   Indeed, according to the Complaint, Paramount has acknowledged that South Park content is at the heart of its strategy to develop Paramount +.   

According to the Complaint, Paramount and its joint venture with Parker and Stone informed HBO that it could not make new seasons during the COVID-19 pandemic.  But during that same pandemic, it produced two South Park 50-minute specials that aired on Comedy Central, a Paramount subsidiary.  Two recent "supersized" specials aired on Paramount + with the seemingly self-referential titles The Streaming Wars and The Streaming Wars, Part 2.  The whole thing is so over-the-top, convoluted, and at least based on the Complaint so obviously wrongful, it reads like a plot from a South Park episode.  No wait, this is too big for an episode -- a South Park movie.

The Complaint alleges causes of action for breach of contract and the implied covenant of good faith and fair dealing, statutory claims, tortious interference, and unjust enrichment.  It seeks not only damages for breach of contract, but also disgorgement and punitive damages.  Expect counterclaims alleging that HBO has failed to pay the licensing fees.

Flo Rida Wins $82 Million Judgment Against Celsius Energy Drinks

As Marisa Dellatto reports in Forbes, rapper Flo Rida prevailed in a jury trial on his claims against energy drink company, Celsius.  Being a man who can now count his age in decades, I had never heard of or taken note of this line of beverages or of Flo Rida, but my daughter went to Flo Rida concert last year, and now I am seeing Celsius ads every time I stream content on services that have ads.  Live and learn.

The suit arises out of an endorsement deal that Flo Rida (Flo? Mr. Rida?) signed with with Celsius.  The deal was renewed in 2016 and terminated in 2018,  Flo Rida claimed that he was entitled to shares in the company, and a jury agreed.  Celsius argued that the statute of limitations had lapsed, but the jury found(!) that Celsius was equitably estopped from making such an argument.  

The verdict consists, in part, of 250,000 shares in the company, which at the time of the verdict were selling for $110/share.   That accounts for $27 million of the verdict.   I'm not sure where the rest comes from. 

Flo, I've never tasted the stuff, but my advice is: liquidate your shares in a hurry, because this stuff has fad written all over it.  It's already down to $84.50/share, but as recently as May 2020, it was below $5/share, and those times may well return. 

Unilateral Contract or Just Blackmail?

 

Here is a new twist on a familiar narrative.  

Celebrity loses dog.

Celebrity offers reward for dog.

Celebrity refuses to pay person who finds and returns dog . . . 

and now the twist . . .

because the finder is the person who conspired to kidnap the dog and who was convicted as part of a conspiracy to do so, which also involved shooting the celebrity's dogwalker.

In February, 2021, Lady Gaga's assistant was walking Lady Gaga's bulldogs, Koji and Gustav (for images of the dogs, you can watch this video), when she was shot and her attackers made off with the dogs.  Two months later, five people were arrested in connection with the dognapping incident.  One of those people was Jennifer McBride, who returned the dogs.  She had a connection with the father of one of the men involved in the attack, and she pleaded no contest on one count of receiving stolen property.  She received two years probation.

But apparently that brush with fame did not sate Ms. McBride.  As Paige Skinner reports on BuzzFeed News,  Ms. McBride noted that Lady Gaga had offered $500,000 to anyone who returned the dogs "no questions asked." Ms. McBride now claims to have complied with the terms of Lady Gaga's unilateral offer.  Worse still, she alleges that she was the victim of a fraud perpetrated by Lady Gaga when the latter allegedly made a promise she never intended to perform.   In short, Ms. McBride claims that she was tricked into returning the stolen dogs.  That sneak Lady Gaga intended all along for the police to question Ms. McBride about how she came into possession of the dogs all along.  The nerve!

Marisa Sarnoff of Law and Crime provides some additional details, including a link to the complaint (journalists of the world, take note -- this is what we all want to see!).  The fraud claims are crucial because Ms. McBride alleges harms, including pain and suffering, mental anguish, and loss of enjoyment of life.  As a result, she claims entitlement not only to $500,000 in compensatory damages but also to $1.5 million to compensate her for the foregoing tort harms.

Hat tip: Meredith Miller