ContractsProf Blog

Dungeons and Dragons: The Nerds Are Angry

I fear I will get a lot of indignant corrections to this post.  Please be gentle.  I know nothing about this game or its culture that I did not learn from Stranger Things.

As Jonathan Bailey reports in Plagiarism Today, big changes are coming to the world of Dungeons and Dragons.  Hasbro subsidiary Wizards of the Coast (WotC) owns the rights to the game, and it licensed the Systems Resource Document under the Open Gaming License (OGL).  As my former student Tom Taylor explained to me, this means that since the year 2000, people, have been able to access the basic document and then create their own variations on the game, which they can then market as they wish.  But soon that may all change.

Last week,  Gizmodo reporter Linda Codega received a leaked draft copy of a proposed OGL 1.1 license, due to take effect January 13th.  As she explains, the original OGL:

has allowed a host of outside designers and publishers, both amateur and professional, to make new products for a game that remains entirely owned by Hasbro subsidiary Wizards of the Coast (WotC). While this arrangement sometimes created products that directly competed with WotC publications, it also allowed the game to flourish and grow thanks to the resources created by the wider D&D community.

We are about to enter a different world.

The key features of 1.1 are as follows:

• It supersedes 1.0, meaning that 1.0 will no longer be an authorized license agreement;
• Creators who publish work under the license will have to report on their publications, and if they earn over $750,000, they will have to pay 25% of their royalties in excess of that amount to (WotC);
• 1.1 does not cover apps, video games, virtual tabletops or other non-print/static digital materials; the former categories must be licensed directly with WotC; and
• WotC will retain a “nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose” in any works licensed under 1.1.

Creators can still make money off of their publications through advertising or donations, so long as they do no charge for use. 

Benjamin Abbott explains on Gamesradar why 26,000 people signed an open letter condemning 1.1.  It seems that the main concern is that some creators of popular tabletop versions of the game will lose their licenses and will not be able to afford to pay the royalties to WotC. My former student explained to me that the few businesses that are able to profit off of their variations of the game operate with very small margins.  They might be able to swing giving WotC 10% of their profits, but not 25%.

Those operations may have to shut down, or they may survive but have to cut back on staff needed to develop the products going forward.  There is also troubling language in 1.1 that provides that WotC "can modify or terminate this agreement for any reason whatsoever, provided We give thirty (30) days' notice".  So even if creators sign on to the new license, it could be yanked with very little notice.  Meanwhile, WotC maintains the intellectual property rights mentioned in the last bullet-point above.

In so doing, WotC seems to be violating no legal norms; it is simply upsetting cultural norms that have evolved over the last two decades.  We'll see how this all shakes out.

Squid Game, Contracts and Consent

I’ve been a bit negligent in my blogging duties as I’ve been busy with the start of classes (I’m teaching Torts this semester, hence my use of the word “negligent”).  So, when my daughter recommended that I watch Squid Game, I scoffed and self-importantly told her that I’m too busy to even post on the contractsprofblog let alone watch a scary Korean thriller (believe me, Koreans make some scary thrillers – it’s not all just Parasite and Train to Busan). For those of you who aren’t on Tik Tok (I know there are one or two of you out there), Squid Game is the insanely popular, meme-worthy, Korean thriller which is one of Netflix’s biggest hits ever.    But then she told me that Squid Game might be a scary-a** thriller but it’s also and more importantly for blogging purposes, a show about contracts and consent.  Contracts and consent?  My two favorite topics!  So, in the name of research, I pulled myself away from my course prep and forced myself to watch the first episode of Squid Game.  And lo and behold, my daughter was right.  It’s all about contracts and consent -- and also the role of money in bargaining power and “bodily integrity transactions” and a whole host of other things relevant to this blog.

(Some spoilers ahead)

The hapless protagonist is a loving father who is a mess of a human being (he steals money from his mother to bet on horse races and doesn’t seem to exhibit the traits of a rational actor – you know this will end in a bad contract for him as a result).  He loses then wins at the races, and then gets beaten up by thugs to whom he owes a lot of money who then force him under threat of physical injury to sign a waiver of his “physical rights,” meaning that they’ll take his kidney if he doesn’t pay up.  (Duress alert!  That contract is void).  He’s desperate for money and gets even more desperate when he learns that his daughter is going to move to the U.S. because her step-dad just got a job there and the only way to keep her in Korea is by making enough money to support her.  This is the “hard luck” bargaining situation that contracts scholars worry about – and one where I think it is hard to find robust consent.  He then meets a well-dressed stranger with whom he plays an even stranger game (it involves money for winning and getting slapped for losing), and then after a few twists and turns, he wakes up in a giant gym-like room in a jumpsuit with dozens of others dressed like him.  They are all made an “offer” to participate in a game, but they know nothing about what the game entails except that there is a very large prize for the winner.  The freakily masked game officials want to ensure that everyone plays the game of their own “free will” even though it is clear that the one thing they all have in common is that they are all suffering under the weight of crushing debt and being harassed by aggressive debt collectors. 

Before they can play the game, they must sign a ‘Player Consent Form” which is your standard adhesive contract offered on a take it or leave it basis.  But unlike the ubiquitous TOS, there are only 3 provisions on this form.  No hidden terms, so no problem, right?  WRONG -- Oh man, so wrong! The first clause says that the Player is not allowed to stop playing although the third clause says the Games may be terminated if the majority agrees.  The second clause says that the Player who refuses to play will be eliminated. But the terms are ambiguous, don’t you think?  Who is the “majority”?  Is it the majority of the participants or the freakily masked officials?  What happens if a Player stops playing?  Most importantly how will the Player be eliminated?  The protagonist hesitates but instead of listening to that voice of doubt (aka the voice of reason) and insisting on getting some clarity about what the terms actually mean (where’s the Definitions section?), he looks around, sees the folks around him sign the contract without a second thought, and then exhibits herd mentality when he signs on the dotted line  “Just because everyone else Clicks to Agree doesn’t mean you have to, does it?”  That scene demonstrates once again that the rational actor is a rare (non-existent) creature indeed, especially if you have money troubles, peer pressure, physical fatigue and optimism bias.  I won’t reveal what happens next, except to say that as with all contracts, the interpretation of the terms makes all the difference in the world and I think it’s fair to say, the contract did not meet the reasonable expectations of the parties.  Talk about unconscionable contracts.

My daughter tells me that Episode 2 has even more contract stuff in it.  But to be honest, I’m still recovering from the abuse of bargaining power and the rampant lack of robust consent in Episode 1. 

What you should do if you want your Super Bowl party to be able to last until 4 a.m. (hint: not this)

A recent case out of New York, PJAM Prods., LLC v. M Light, LLC, 652409/2018, stems from a Super Bowl party. PJAM licensed M Light's venue to hold a party coinciding with Super Bowl weekend. There were discussions about the party being allowed to go on until 4 a.m., even though local law required the party to shut down by 2 a.m. PJAM claimed that M Light talked about being able to get permission from the city to keep the venue open until 4 a.m.  

No such permission was ever received, however, and PJAM sued for breach of contract. The problem was there was nothing in the contract requiring M Light to get such permission. The contract required M Light to have the proper government permits for the party, but did not specify that those permits should allow the party to extend until 4 a.m., and PJAM acknowledged that the law in the city was to close by 2 a.m., so that's what the proper government permits would have said, too. There was nothing in the Agreement about M Light lobbying the city to keep the venue open until 4 a.m. 

PJAM's fraudulent inducement claim also failed, because there was no allegation that M Light was lying about its intention to lobby the city when it said that it was going to. As for allegations the M Light led PJAM to believe its connections with the city were such that the lobbying would be successful, the court called those "mere puffery." The court said it was not justifiable for PJAM to rely on M Light's statements to believe that the 4 a.m. permission would definitely be obtained; rather, PJAM was taking a risk, and there was no indication that things would have turned out differently if M Light had lobbied harder or had better city connections. 

Basically, if PJAM wanted M Light to bear the risk of the 4 a.m. permission not coming through, it should have been put in the contract, and it wasn't. The contract was integrated, with a merger clause, so the court did not allow parol evidence of this as an additional term. 

The moral of the story is: If you're signing a written contract, don't rely on oral representations different from the contract. 

If you don't pay for a raffle ticket, there's no contract for the prize

If you've already started thinking about gathering examples for your courses this fall, here's a consideration case for you out of Ohio, Forbes v. Showmann, Inc., Appeal No. C-180325. Forbes was an employee of Showmann, and at a holiday party Showmann gave its employees, including Forbes, raffle tickets. One of the prizes was what sounds like a pretty sweet cruise package, and Forbes won the cruise. Showmann terminated Forbes's employment a few weeks later and informed Forbes that the cruise package was conditioned on Forbes still being a Showmann employee when she took the cruise. 

Forbes sued for breach of contract but the problem was that it was undisputed that Forbes did not pay for the raffle ticket. Showmann simply distributed the raffle tickets for free to its employees. Therefore, there was no consideration with which to form a contract. Forbes tried to argue her employment by Showmann was the consideration for the ticket but Forbes's employment was not used to bargain for the raffle ticket in exchange, so therefore there was no contract. 

If you feel bad for Forbes, which I admit I kind of did based on these given facts, her conversion claim does survive, so there is some hope for her. 

The conclusion of the thrilling non-compete trilogy!

Completing the trilogy of non-compete cases this week, here's one out of the District of Maryland: Premier Rides, Inc. v. Stepanian, Civil Action No. MJG-17-3443. The industry this time is amusement park rides. The defendant is a structural engineer who worked for the plaintiff, mainly on roller coasters. He signed an employment agreement that contained a non-competition provision. When he decided that he wanted to resign his employment, he asked to be released from the non-competition provision. The plaintiff refused to release him. Subsequently, the defendant sought jobs that were non-competitive in nature, while apparently turning down a couple of employment offers from the plaintiff's competitors. He did, however, keep in touch with the plaintiff's customers, including interviewing for a job with at least one of them, before eventually accepting employment with DreamCraft. In his capacity at DreamCraft, the defendant worked on a project for one of the plaintiff's competitors and attended meetings with many of the plaintiff's customers. The plaintiff sued for breach of the non-compete. 

The defendant first tried to argue that the agreement did not have adequate consideration, but the court noted that Maryland law is clear that "continued employment of an at-will employee" is sufficient consideration for a non-compete, as long as there is no other evidence of bad faith. The defendant continued to work for the plaintiff for three years after signing the agreement, receiving raises and bonuses throughout that time. So the court found that there was adequate consideration to enforce the non-compete. 

The court also concluded that the non-compete had a valid corporate interest in that it prevented the defendant from exploiting the customer contacts he made while working for the plaintiff for the benefit of one of the plaintiff's competitors. The defendant, however, argued that the provision was not narrowly tailored to that interest. The time restriction of twelve months is routinely upheld in Maryland so the court focused on the fact that the non-compete was not limited in scope geographically. The court found that the plaintiff's market was global in scope, so the lack of geographic limitation was permissible. 

The court did, though, find that the non-compete prohibited more activity than necessary. The defendant was an engineer, not a salesman, so the plaintiff's concerns about the defendant's customer relationships seemed misplaced. The defendant necessarily had to meet the plaintiff's customers to perform his job, but the plaintiff admitted that this kind of personal relationship was not important for the customers, who made their purchasing decisions based on price and "impact"of the amusement park ride. The agreement in separate provisions prohibited the defendant from soliciting the plaintiff's customers on behalf of his new employer and from disclosing the plaintiff's confidential information. The plaintiff did not allege the defendant had violated these provisions; rather, the plaintiff focused on just the fact of the defendant's employment by DreamCraft being enough to violate the agreement. But since the plaintiff's non-compete interests had been solicitation of customers or disclosure of trade secrets, to the court it was telling that neither of those was at issue in this case. 

Accordingly, the court found the non-compete overbroad and unenforceable. It noted that it could rewrite the non-compete to be enforceable but it didn't know enough to edit it effectively at the moment. 

But what does the HQ stand for????

Everyone is talking about HQ Trivia right now, it seems. I'll be honest, though: Last week was the first time I've ever heard of the app. "It's a live trivia show," I was told. "You play twice a day with hundreds of thousands of your closest friends and try to win money." 

I downloaded the app because I was curious, and everything about it was an odd, surreal experience. I hadn't expected there to be a live host making uncomfortable one-sided banter to fill time while the start of the game was delayed. Then, when the questions started up, I...had no idea what to do, because nothing about my screen ever changed. I was just staring at the host the whole time. I couldn't figure out how to answer a question. 

I found out later that the question is supposed to pop up on your screen. It didn't on my screen, an issue that I saw other people online complaining about, so I know it at least wasn't my own incompetence. I didn't really stick around for more, though. I deleted the app, thinking it was just something that didn't seem to be my kind of thing. 

While I was Googling my app experience, though, I came across this pretty wild article from The Daily Beast and it made me think about a thought exercise I like to make my contracts students engage in at the very beginning of the semester: What does each party to a transaction want from the relationship they're about to enter into, and how will that translate into the contract? The article recounts an interview the Daily Beast conducted with the app's main host, and then their interactions with the app's CEO. At the end, it's revealed that the app is in a negotiation for a long-term contract with the main host. The rest of the article provides a lot of meat for speculation as to how those negotiations might go, based on the comments of both the main host and the CEO. The CEO appears to be very worried about the app's trade secrets being revealed, so one can assume that the contract would be very strict about the host's interactions with the media. Doubtless the parties will discuss a non-competition clause as well.  And how much will the negotiations be impacted by the newness of the HQ app phenomenon; the uniqueness of its setup; and the fuzziness of its future plans? All interesting things to consider. 

Warning: Don't Bury Your Arbitration Clause in a Hodge-Podge Paragraph (my official legal term)

I have never been to a trampoline park but doing this blog has given me the impression that they're dangerous! I've already blogged about one in New York, in which the court refused to enforce a waiver of liability for negligence. Now, in this recent case out of Louisiana, Duhon v. Activelaf, No. 2016-CC-0818, a court again finds against another trampoline park's enforceability of its contract terms. This time the term at issue is the contract's arbitration provision. 

The plaintiff was injured at the trampoline park and filed suit seeking damages. The trampoline park responded seeking to compel arbitration pursuant to the agreement that the plaintiff was required to sign before entering the trampoline park.

However, the Louisiana Supreme Court found that the plaintiff did not consent to the arbitration clause. It noted that the clause was buried in the rest of the fairly lengthy agreement in such a way as to be concealed from the plaintiff. Specifically, it was found in the eleventh line of the third paragraph, a paragraph that also meandered through topics such as: the customer's physical ability to partake of the trampoline park, assumption of risks, agreement to follow the trampoline park's rules, and certification that customers would explain those rules to any children accompanying them. To the court, this hodge-podge, catch-all paragraph drowned the arbitration clause in the middle of unrelated information. This was extra-noteworthy because the rest of the agreement was divided into short one-topic paragraphs, save the relevant one containing the arbitration language. The court refers to it as being "camouflaged" within an eleven-sentence paragraph, nine sentences of which had nothing to do with arbitration. Because of this, the court found that the plaintiff did not truly consent to the arbitration provision. 

This was reinforced by a lack of mutuality in the provision. The clause required all customers of the trampoline park to submit to arbitration, but there was no corresponding requirement on the trampoline park's part. In conclusion, the court found the arbitration clause to be unenforceable. 

Ryan Lochte and Morals Clauses

I have witnessed with interest the evolving story of what exactly happened in Rio involving Ryan Lochte the morning of August 14. Initially Lochte claimed he had been robbed at gunpoint. I later heard through the gossip mill that that story was untrue and that Lochte had in fact beat up some security guards. That turned out, it seems, just to be rumor-mongering, but the story has continued to evolve from there, with both Lochte and the Rio police making statements that later seem untrue, or only partially true, or exaggerated. Slate has a good run-down of the changing versions of Lochte's story, although it's from a week ago. Now Lochte has been charged with filing a false police report, since it does seem clear at this point that no robbery happened. Even that, however, is confusing to parse if you read a lot of articles about it: It seems like the crime is more accurately making a false communication to police, as some articles have eventually stated, since there are conflicting reports about whether a police report was ever filed. 

In the wake of this whole mess, Lochte has lost several of his sponsorship deals (although he's also picked one up). It's unclear, because the contracts don't seem to be public, whether this is a choice of just not renewing the contract (apparently that's the case with Ralph Lauren) or if a violation of a morals clause is being invoked to allow cancellation of the contract (which might be what's going on with Speedo). All of this provokes an interesting morals-clause conversation to me, and we had a bit of discussion about it on the Contracts Professors listserv. It seems clear that Lochte engaged in some sort of inappropriate behavior, and it seems also clear that whatever that behavior was, even the most minor version of the story is arguably a violation of any morals clause out there.

What is most clear is that, no matter what really happened, this has definitely served to tarnish his reputation, and that's is what's striking to me. This story has taken on an enormous life of its own, with many differing versions of it floating around the Internet. This situation has been caused, of course, by Lochte's many differing stories, together with some apparent conflicting statements by the Rio police, coupled with reporting that may have been less than precise itself in describing what was going on. One online story details all the conflicting information and asks the individual reader what they believe about the story.

While this particular maelstrom seems to have some basis in fact, it's not difficult to imagine something like this getting out of control without such justifying behavior at the root of it. Morals clauses tend to be about perception, but does that mean you can manipulate the perception of someone, through no real fault of their own? Take, for instance, the "Ted Cruz is the Zodiac Killer" meme that was popular on the Internet earlier this year. Ted Cruz wasn't born until after some of the Zodiac killings had happened, so he obviously could not have been the Zodiac Killer, and in fact some people interviewed about the meme noted that was the point: what they were saying was impossible. Nevertheless, it was reported that polls indicated 38% of those surveyed thought he might, in fact, be the Zodiac Killer, despite the impossibility. If a substantial number of people start thinking you did something you absolutely did not do, is that enough for a morals clause to be violated, because of the perception that you did it? 

Contracting Against Your Dad Embarrassing You

Which is exactly what Australia's swimming sisters Bronte and Cate Campbell have tried to do. Apparently after their father gave a number of effusive interviews to the press, the sisters turned to contract law in an attempt to protect them from further such events. As this article reports, the sisters entered into a contract with their father in which he promised, "to the best of [his] ability," "not to embarrass [his] daughters on national television."

No word on what their father received in exchange for this promise.

 

The Contractual Side of Going for the Gold

The Olympics are almost here, and as we all know, they're big business: lots of television ratings, lots of advertising, lots of endorsements.

Today the District of Oregon is hearing an argument on a preliminary injunction in a contract case with Olympic implications (or an Olympic case with contract implications), Nike USA, Inc. v. Berian, Docket No. 3:16-cv-00743 (behind paywall).

The dispute, which has been widely reported online, is based on Nike's endorsement contract with Boris Berian, a track and field competitor with Olympic hopes. The contract, according to the complaint, gave Nike the right to match any offers made to Berian during a particular period of time. During that time, Berian received an endorsement offer from New Balance. Nike claims in its complaint to have matched the offer, and that Berian breached his contract with Nike when he refused to continue his relationship with Nike.

Berian kept racing. And kept winning. While wearing New Balance gear. So Nike, to keep Berian from furthering his relationship with Nike's competitor New Balance, sued him, serving him with the lawsuit during a big track meet.

Nike's allegations have been countered by Berian, who claims that New Balance's offer to him did not contain a number of restrictions that Nike's offer did contain. However, Nike has countered that by arguing that Berian did not make that clear to Nike and that Nike would have dropped its restrictions if necessary. (Nike seems to have just assumed there had to be restrictions and that any statement otherwise couldn't possibly be true.)

Endorsements are big money, of course. The Nike and New Balance offers are $125,000 for the year. While he's embroiled in the legal dispute, Berian's agent asked for donations to Berian's legal fund.

The judge has already approved a TRO in the case, prohibiting Berian from racing with any equipment other than Nike's. The hearing for the preliminary injunction is today.

Insurance Policies: Making Fantasy Viable in the Real World

That's not usually a tagline you associate with insurance policies, but it nevertheless appears to be true. 

  

I feel like I've been doing a lot of blogging about insurance policies lately. So it almost seemed inevitable to me when I received my latest Rec Center e-mail (if you're not signed up, you totally should be!) that there would be a link to an article about insurance policies. However, this article is about how the growing willingness of insurance companies to insure fantasy live action role playing (LARP) events may be helping those events to become more common. As it becomes easier for the average person to get insurance for a LARP event, those events become simpler and less risky to host. So, if you've been wanting to set up your own quest and re-enact some fantasy combat, you can now make sure that people are covered by insurance if they fall during the battle and break an arm. The article notes, by the way, that injuries at LARP events are rare. One of the insurance companies hasn't received a single claim in five years. So this seems like a win-win for everyone. 

You should go read the article, it's really interesting, and a reminder that marijuana facilities aren't the only industry new-ish to the insurance area where policies need to be interpreted. Anything humans can dream up for fun can carry insurance policies with it. I guess they're kinda-sorta the equivalent of a healing spell or potion? (With a lot less magic.)

Using Contract Law to Protect Guestworkers

 

H-2B visas provide for foreign citizens to work temporarily for American businesses in non-agricultural roles. However, these visas can sometimes lead to abuse of the foreign citizens working under them, as was alleged in a recent case out of the Eighth Circuit, Cuellar-Aguilar v. Deggeller Attractions, No. 15-1219. Also blogged about here from a workplace law point of view, the case involved a group of nineteen workers who had been employed in a traveling carnival. The workers alleged, among other things, that their employer had breached their employment contracts by paying them below the minimum wage. 

The district court found that there had been no contract between the workers and their employer, basing its decision on the federal regulations governing the H-2B visa program. However, the appellate court said that was the incorrect place to look for guidance on whether a contract existed. Rather, the existence of a contract is governed by state common law, and in this case there was enough evidence of a contract to survive a motion to dismiss. The workers received offers of employment from Deggeller and then traveled to the United States in acceptance of those offers, which was enough to establish a contractual relationship. The court then used the federal regulations governing the H-2B visa program to fill in the particular terms of the contract, which included a requirement that the employer pay no less than the minimum wage. Therefore, the workers' allegations that the employer had breached this requirement established a valid contract cause of action. 

Allowing the workers to proceed on a contract theory may seem like a positive development for similarly situated workers who might find themselves taken advantage of. However, I had the pleasure recently of hearing Prof. Annie Smith from the University of Arkansas School of Law speak on the prospect of mandatory arbitration clauses being applied to guestworkers. As we all know, mandatory arbitration clauses are currently in major vogue, and Prof. Smith expressed concern that mandatory arbitration would be detrimental to already vulnerable guestworkers. The decision here might encourage employers like Deggeller to enter into more formal contracts that would include arbitration clauses. If they're going to be found to be in a contractual relationship anyway, presumably the employers would want to exercise control over the terms of that contractual relationship. 

Liability Releases for Negligence, New York Trampoline Park Edition

A recent case out of New York, Gosh v. RJMK Park LLC, No. 155024/2015 (thanks to reader Frank for the non-paywall link!), tackled the familiar issue of negligence liability release provisions, this time in the context of a trampoline park that the plaintiffs' child was injured at while playing "trampoline dodgeball." I had no idea what this was, so I looked it up. Here's a video: 

It mainly looks like something people who don't get motion-sick should play (i.e., people who are not me). 

The plaintiffs had signed an agreement with the trampoline park with a clause under which they waived all claims against the trampoline park arising out of negligence. Under New York law, such a clause is unenforceable when "a place of amusement or recreation" with an entry fee is involved as against public policy. 

However, that didn't mean the plaintiffs got everything they wanted in this case. The plaintiffs' argument was that the presence of the negligence liability release clause rendered the entire agreement with the trampoline park unenforceable, including the venue provision that required them to bring suit in Westchester County. The court disagreed: Just because that one provision was unenforceable didn't mean the entire agreement got thrown out. Rather, the court severed the negligence liability release provision as "unrelated" to the main goal of the agreement. It didn't actually clarify what the main objective of the agreement was, just dismissed the release provision as being related to "legal stuff," basically. At any rate, the agreement had contained the standard boilerplate provision stating that any illegal clause should be severed from the agreement and the rest of the agreement enforced, which also supported the court's conclusion. So venue was transferred to Westchester County. 

So You Want to Write a Best-Selling Video Game, Huh?

If so, it's always better to be precise in your negotiations. 

Of course, the flip side of this is that you frequently don't feel like you have the power to demand precision. 

In Bubble Pony v. Facepunch Studios, Civil No. 15-601(DSD/FLN) (sorry, I can only find versions behind paywalls for now), out of the District of Minnesota, Patrick Glynn was a computer programmer in need of a job. He e-mailed Facepunch looking for one, highlighting his abilities (as one does when job-hunting). Facepunch's majority owner, Garry Newman, responded to Glynn's e-mail positively, describing what he was looking for in a new employee and adding:

I want to eventually be in a position where you'd be making games for Facepunch Studios, which we'd sell on Steam, or the apple appstore, or whatever, but once that game makes what we've paid you so far back, you'd get something like a 60% cut of all the profits (probably more, that's kind of TBD). So we'd kind of be investing in your, kind of.

Does that sounds [sic] like the kind of situation you'd like to be in?

Glynn replied that yes, he was interested, and that his "only concerns" were "making rent, paying bills, and buying groceries." Eventually, the parties agreed on compensation of $1,900 per month, to be increased by $100 per month until they reached $3,000. At the time, Glynn's responsibilities were going to be things like fixing bugs and otherwise optimizing Facepunch's existing code. The parties did not further negotiate what would happen if/when Glynn started creating games for Facepunch. They did, however, agree that Glynn was an independent contractor and not an employee. 

Eventually, Glynn began creating games for Facepunch, producing more than 75% of the source code for a game called RUST. RUST was a huge success that "has generated at least $46 million in sales." Facepunch paid Glynn bonuses totaling around $700,000. Facepunch also asked Glynn, after RUST's major success had been established, to draft a document explaining how the RUST programming worked. Once it received the document, Facepunch terminated its relationship with Glynn, pulled RUST off the market, and announced a new "experimental game" based on RUST. 

As you might imagine, Glynn has sued for a number of causes of action, and there are other issues in this case, including an issue of personal jurisdiction, because Facepunch and Newman are both British (the court found personal jurisdiction to exist). However, to focus on the contract issue, the court found that the parties' e-mails on the subject of 60% of the profits if Glynn started developing games never rose to the level of an agreement. The court said that the terms about the compensation were "vague and indefinite," pointing to the words "eventually" and "something like 60%" and "TBD." Therefore, Glynn's breach of contract claims here were dismissed. The court also dismissed his promissory estoppel claims, finding that Newman's e-mail statements were too "vague and indefinite" to constitute promises. 

Glynn should have been sure to clarify his compensation before embarking on developing games for Facepunch. Of course, from Glynn's perspective, he was probably happy just to get a job, and, by the time he started developing games, he might have developed enough of a relationship with Facepunch that he didn't feel it necessary to rock the boat, so to speak. 

Glynn isn't completely out of luck, however. Although the court dismissed most of his claims, the lack of definite terms actually works in his favor in the copyright context. Because the parties were allegedly clear that Glynn was an independent contractor and not an employee, and because there was allegedly no agreement anywhere otherwise (so far, at this early stage), Glynn's claim for joint copyright ownership of RUST (and its associated causes of action) survived the motion to dismiss. So to be continued on the copyright question...

Weekly News Roundup

In yet another government outsourcing scheme gone wrong, KOLO TV news is reporting that Nevada is alleging breach of contract against the companies it hired to administer Common Core testing in the state's schools.  Apparently, when thousands of students attempted to log on so that they could take their exams, they received an error message and could not proceed.  Educators across the state are aggrieved, but students across the state are generally fine with it. 

Photo by Yamaguchi先生

Nonprofit Quarterly reports that three students, three parents and three alumnae are alleging breach of contract and seeking an injunction to keep open Sweet Briar College in Lynchburg, VA.  They allege that they had entered into express and implied agreements with the College that they would not only have the benefit of a four-year degree from the College but would also enjoy the benefits of being alumnae or of having children who were alumnae.

According to the Des Moines Register, in 2011, an 87-year-old grandmother was playing the slots, when the screen told her that she had a "bonus award" of $41797550.16.  Last week, Iowa's Supreme Court ruled unanimously that she had won $1.85.  They rejected claims of breach of an implied contract and found that the "bonus award" was just the product of a computer glitch.   

More on the Puzzling ICAM Problem

 

As I noted about a month ago the problem for the 2015 International Commercial Artbitration Moot is wonderful for those who like crossword puzzles, solving problems, reading mysteries, or doing detective work. There are facts, deadends, and read herrings galore. No one goes for a big sleep as far as I can tell but there is the dreaded issue of "fundamental breach." In fact, that appears to be the centerpiece of the problem. Just to make it a little twisty, the fundamental breach is by the buyer whose letter of credit may not conform to the contract. Since even that would be too simple, there is a second letter of credit that may or may not conform but which came after the first arguably non comforming one. There are phone calls, emails, letters, accusations, and even an emergency arbitration that, maybe, should not have occurred at all.

At my school 32 students are now writing briefs for the claimants side of the case and preparing for their oral arguments next week. There is something here even for profs not involved in the Moot. Just reading the problem will spark all kinds of ideas for exam questions suitable for  the basic contracts course.

 

A $1 Billion Dollar Unilateral Offer

Warren Buffett and Quicken Loans have teamed up to help make teaching about unilateral contracts and interpretation so much more interesting.  The offer?  One billion dollars to anyone who fills out a perfect 2014 NCAA tournament bracket.

Say what?  Is this serious?  Or is it like that Pepsi commercial - you know the one.

Although at first, this might sound like a joke, once you learn the odds are, by one estimate, one in 9.2 quintillion, you --a reasonable person -- would realize this offer was serious.

All you have to do is fill out a perfect bracket.  (Now might be the time for me to mention that I once won my law firm's pool one year.  Strange but true).

But wait - there's more.  The Business Insider reports that Quicken, which is actually running the contest, will award $100,000 to 20 of the most accurate but not perfect brackets "submitted by qualified entrants in the contest to use toward buying, refinancing or remodeling a home."  The company will also donate $1million  to Detroit and Cleveland non-profit organizations. 

Get ready for March Madness....

 

[Nancy Kim]

 

 

Will Tough Mudder's Liability Waiver Hold Up?

Tough Mudder hosts extreme 10-mile obstacle course challenges.  If you are unfamiliar with the company, this video should give you a sense of the challenges Tough Mudder creates: 

Before a participant may enroll in an event and run the course, he/she must agree to an assumption of risk, waiver of liability and indemnity agreement.

Outdoor magazine has a story this month about the tragic death of Avishek Sengupta at a Tough Mudder event in Maryland.  He jumped into the deep, muddy pool at the "Walk the Plank" obstacle and did not emerge.  His tragic death is recounted in harrowing detail in the Outdoor magazine article, which mentions that Avishek's family has sued Tough Mudder and Amphibious Medics, a subcontractor that was onsite to provide rescue services.  

Central in the case will be the enforceability of the waiver of liability.  The parties weren't too fortchoming with litigation strategy but the article does provide:

Tough Mudder won't discuss its strategy for the Senguptas' legal action—nor will anyone from Amphibious Medics—but if the suit goes forward, its lawyers will likely stress the fact that Avi signed what Tough Mudder calls a Death Waiver, exculpating the company of liability for certain acts of "ordinary negligence" and "inherent risks," such as "inadequate or negligent first aid and/or emergency measures" and "errors in judgment by personnel working the event."

But the Boston-area firm Gilbert and Renton, representing Avi's estate, will likely argue that such waivers do not relieve Tough Mudder of the legal "duty of care" that exists whenever a business knowingly creates predictable hazards for the public. In the case of Walk the Plank, the predictable hazard—drowning—is clear enough. Hence the presence of a rescue diver and lifeguards at the obstacle on the day Avi drowned.

This will be an important and interesting case for liability waivers.  Worth following.

[Meredith R. Miller]

 

  

A Slam Dunk of a Deal

In a situation that underscores the importance of thinking twice about very long term contracts, the NBA wants to end a contract which requires it to pay two brothers a percentage of its broadcast revenues.  Back in 1976, the Silna brothers owned an ABA franchise, the Spirits of St. Louis.  When the ABA merged with the NBA, the Silnas agreed to this bargain - they would dissolve their team in exchange for 1/7 of the television revenues for the four ABA teams that were merged.  The four teams were the Indiana Pacers, the San Antonio Spurs, the Brooklyn Nets and the Denver Nuggets. 

Sure, back in 1976, the Silnas might have looked silly for giving up a huge buyout for something that seemed pretty worthless (the NBA wasn't even televised prime time) but now the deal is being called "the greatest sports deal of all time."  

Not kidding about that "all time" either - the Silvas reportedly received $19 million under the contract last season and the contract term is "in perpetuity."  Fat chance the NBA will be able to scream foul on the basis of lack of mutuality...

 

[Nancy Kim]

Lawyer Who Forgets About "Offeror is King" Wins, Then Loses, Contest

While teaching the concept of "offeror is king" this semester, I said something like, "I wish I had a crown.  One of you should bring me a crown!  There might be some participation points in it for you if you do."  (It sounded less entitled than that quote but you get the point.)  Shortly thereafter, two students brought me a crown--one from Burger King (of course!) and one from a party supply store.  The first one was just slipped under my door but the second one had "terms of acceptance" attached.  The terms stated that I had to use the crown in class and not disclose the student's name in order to accept.  I did both, and my acceptance was deemed substantively valid and timely by the entire class.  

Another student recently alerted me to a New York Times story about a lawyer victimized by the "offeror is king" concept.  The lawyer, Theodore Scott, reportedly produced a winning video and essay in response to a contest offer from Gold Peak Tea.  The contest winner would receive  $100,000 to take a year off and enjoy life (presumably over some tea).  However, after Mr. Scott's video received the highest number of votes and was declared the grand prize winner, Gold Peak Tea had a change of heart.  Apparently, Mr. Scott had requested votes for his contest entry via a crowdsourcing website on which people, well, request votes for things like this.  Gold Peak Tea took the position that Mr. Scott's online plea for votes violated the contest rules.  Because Mr. Scott accepted in a way other than that specified by the offeror, there was no deal, and a different winner was selected. 

As an interesting side note, many folks appear to be bombarding Gold Peak Tea's Facebook page with comments supporting Mr. Scott, the original winner.  The Facebook response from Gold Peak Tea reads as follows: 

    "Gold Peak appreciates input from the community on our Facebook page. The Take the Year Off     program was created to reward a Gold Peak Tea fan with the opportunity to refresh, renew and     refocus. By devoting more time to his three special needs children and bettering his community with     the development of a local equine therapy program, Michael Simpson will take the year off in a     deserving fashion. We’d like to address some of the feedback shared about the Take the Year Off         promotion and how the winner was determined:

 

Michael Simpson was declared the winner after we fully vetted his submission to ensure all content was in adherence with Official Contest Rules (http://CokeURL.com/TTYORules).

Unfortunately, Theodore Scott was disqualified when it was determined during the verification process that he had attempted to inappropriately induce members of the public to vote for his submission, a violation of Official Contest Rules (http://CokeURL.com/TTYORules).

The House Rules for the Gold Peak Tea Facebook page state that users will not “publish, post, distribute or disseminate any defamatory, infringing, obscene, indecent, misleading or unlawful material or information.” Certain posts addressing the Take the Year Off promotion do not abide by these Rules and have been removed (http://CokeURL.com/HouseRules)."

Gold Peak hopes the members of this community will join us in wishing Michael Simpson well in his year off."

Perhaps the ultimate message, then, is not "offeror is king" but, rather, "read the fine print."

[Heidi R. Anderson, hat tip to Ly Tran]