Wednesday, September 8, 2021
Tuesday, August 31, 2021
Like seemingly everyone else, I have become obsessed with Netflix's six-episode mini-series The Chair. It's not great, but it's home, and it features Sandra Oh (right). I would pretty much watch anything with Sandra Oh, which is why I continued to watch Killing Eve, even after I lost interest in the characters. Once I lost interest in Villanelle's clothes, I knew it was over. But I digress.
If you have been asleep for the past fortnight (or don't have Netflix), let me fill you in. Sandra Oh stars as, Ji-Yoon, the first woman chair of an English Department at a distinguished university. Her colleagues are all stock figures: the doddering tenured deadwood who barely knows what's going on; the more with it stick-in-the-mud, Eliot, who desperately wants to believe he is still in his prime; the under-appreciated senior female Associate Professor, Joan, still passionate about Chaucer and still suffering casual sexism with dignity; the charismatic, self-destructive alcoholic modernist, Bill, still mourning a wife lost to cancer; and the smart, with-it, Black woman professor, Yaz, who knows everything the older generation knows but also can connect with students and especially with students of color. There are other people who show up for faculty meetings, but we don't learn anything about them in the six episodes. And then there's David Duchovny, playing a version of himself, which is awesome!
The series gets some things about the academy right. The actors are all superb. Academics are eccentric. Budgets are tight, and it is hell to be a faculty member placed in an administrative role these days. Something's got to give, and often that something is a person's job. Students can combine their educations with their experiences to generate both a vocabulary and a theoretical apparatus through which they give expression to a lot of justified outrage. Sometimes the remedy for that outrage entails real human costs. These are serious subjects, and The Chair struggles to keep things light while addressing both the reality of student grievance and difficulty for faculty members trying to navigate between student demands and a university that is primarily trying to avoid bad publicity. It also tends to reduce situations and behaviors to parodies. Six, half-hour episodes do not provide enough space to develop an ensemble of characters. There are only two students who figure in multiple scenes, and we get bare glimpses of who they really are. Most of the students are there to deliver perfectly formulated critiques of institutionalized racism.
The series gets a lot more wrong, and I suppose that only bothers me because the series is set in my professional home. Shows about the law get things wrong all the time, but I can move on. In this series, I find it preposterous. Bill and Joan's characters get fleshed out a bit, but they are not fully realized. We get to know Joan slowly as a creature of the university, but we never see her in any other context. We learn late in the series Eliot has a wife who was denied tenure and settled into domesticity. It is a too little, too late attempt to humanize him. I would love to see a series that explored academic eccentricity but also displayed the characters' unique passions and gifts so that viewers can really understand both what drew them to the academy and away from commercial life or social activism or whatever else people do, and why somebody thought they would make a good colleague.
Pembroke University, where the series is set, is neither fish nor fowl. It seems like a research university, but we only see one graduate student. The only courses on offer seem to be on Chaucer, Emily Dickinson, and Melville. No non-canonical texts, only non-canonical riffs on canonical texts. More importantly, composition, the bread-and-butter of English-department teaching, is mentioned only in the final episode when a doddering professor exclaims "I'm not teaching composition!" Well who does? There seem to be no Rhet/Comp professors, nobody teaches Communications, even though that program is often merged with English these days, and there is no indication that graduate students or adjuncts are engaged in teaching at all, except as a T.A. for Bill, who can't manage to show up for class sober or remember what course he is supposed to be teaching. I could go on, but I need to justify this rant by talking about a contract.
If you haven't watched the series yet and plan to do so, read no further, as I am going to reveal the main plot-line as well as what happens in the final episode on the other side of the break.
Monday, August 2, 2021
INDUCING BREACH OF CONTRACT: A STUDY IN SCARLETT
The tort of inducing breach of contract continues to fascinate. In Periwinkle Entertainment Inc. v The Walt Disney Co., Scarlett Johansson (left), the star of Black Widow sued Disney for tortiously inducing Marvel Studios, a subsidiary of Disney, to breach its contract with her. The complaint alleges that Marvel entered into a contract with Johansson to act in Black Widow. Because Johansson’s compensation was largely to be determined by box office receipts, the contract required Marvel to make an exclusive “wide theatrical release” of the film for a period of time, “the standard exclusive theatrical window.” Instead, citing the COVID pandemic, Disney caused its subsidiary Marvel to release the movie simultaneously with Disney’s release of the movie through its streaming service, Disney+. Viewers were permitted to watch the movie without going to theaters, which Johansson alleges diverted revenues from theaters, costing her millions.
The complaint provokes several questions. Johansson sued only Disney, not Marvel. Normally, claims of tortious inducement against a third party are joined with claims for breach of contract against the contract breacher. Various reasons relating to preclusion on factual and legal issues dictate that the all defendants should be bound by the same action. Then why did Johansson not sue Marvel as well as Disney? Did its contract contain a mandatory arbitration clause (and if not, why not?)? If it did, then the arbitration clause, if well-drafted, should have included claims against Marvel’s parent, Disney. That shoe may drop later.
The complaint pleads two counts of tortiously inducing breach. Normally a parent company should not be liable for causing a subsidiary to breach a contract. A court usually ignores the separate identities of parent and sub in claims that have concerted activity as an element (cf. the “bathtub conspiracy” cases in antitrust). But here it seems that the parent had an economic motive to divert revenue from the sub to its streaming services and away from Johansson by causing the sub to delay theater release of the film, in violation to its contractual obligation to Johansson. That seems to justify treating Disney as a separate, third-party who is a stranger to the contract with the sub.
A final question concerns remedies. Perhaps because it was hastily drafted, the complaint is sparse on its remedial prayers, seeking only punitive damages in the separate counts, but adding a catch-all ad damnum for all money damages caused by the tort. Damages for inducement usually equal the expectation damages for breach of the underlying contract. But these expectation damages may be speculative, given the uncertainties of the imaginary box office receipts that would have occurred with a weeks-long exclusive theater release.
But the tort claim, if established, should also justify a restitutionary remedy against Disney, measured by its unjust enrichment resulting from its wrongdoing. That calculation too, may be complex, however if one must determine how much of its streaming revenues were caused by its wrongdoing.
If another reminder were needed, Periwinkle demonstrates anew that Contracts and Remedies students should be familiarized with the tort of wrongfully inducing breach of contract as another weapon in their litigation arsenal.
Tuesday, July 13, 2021
In 2018, Roy Moore, former Chief Justice of the Alabama Supreme Court, former U.S. Senate candidate agreed to be interviewed by Sacha Baron Cohen. As is his wont, Cohen misrepresented the purposes of the interview. It did not go well, as you can see below, and the problems go well beyond Cohen's mock unibrow:
Moore and his wife sued Cohen for intentional infliction of emotional distress and fraud. Moore added an additional cause of action for defamation.
In a ruling issued today, Judge John P. Cronan of the S.D.N.Y. dismissed Moore claims, as barred by a contractual waiver, and dismissed Mrs. Moore's claims as barred by the First Amendment. We have covered Mr. Cohen's encounters with the law of waivers before (linking to five other posts!). The outcomes have been pretty uniform. The only twist here is that Mrs. Moore didn't sign a waiver, but that's where the First Amendment comes in. Read all about it on some other blawg.
As to the contracts issues, Mr. Moore signed a consent agreement that expressly waived each of the claims that he attempted to bring. One might be concerned that the law should not protect those who knowingly commit fraud but get away with it because they made you sign a consent agreement in which you waived any fraud claim. New York law refuses to enforce "general releases." But this agreement was not a general release, and even if it were, even a general releases is enforceable where, as here, the release language clearly, unambiguously, and specifically encompasses the claims brought.
Tuesday, May 25, 2021
I am a big fan of the Israeli television series Shtisel. I was thrilled when Netflix made Season 3 available but also a bit apprehensive, because I just didn't think the writers could maintain the intensity of their dramedy without drifting into formulaic schtick or melodrama. Season 3 begins with a grieving widower, an orthodox woman unable to bear children, and a school principal facing removal from his position as a punishment for some pretty brutal corporal punishment caught on a smart phone. The season was tipping towards melodrama. But the show sustains its remarkable balancing act, revealing unexpected depths in its characters, brought out through fabulous acting, inventive plot twists that don't overtax the viewers' indulgence, and brilliant pacing and editorial interweaving of different threads.
I just watched an episode in which the main character from Seasons 1 & 2, Akiva Shtisel (Michael Aloni) did not appear at all. I didn't miss him, even thought I am very intrigued by his journey in Season 3, because I was so caught up with what was going on with the other characters. The show is especially fun for me, because it provides just the life-support needed to sustain my dwindling recollection of Hebrew and Yiddish. In addition, the show depicts strong-willed, even stubborn, characters constrained by fervent religious belief. They constantly collide with one another while stuck between a rock and a hard place. The show's women are remarkably practical, creative, and determined, but also vulnerable and thus inevitably brittle; its men are deeply flawed and often shrewdly self-interested but also passionate and sometimes endowed with a softness and compassion that the women cannot always afford -- or don't think they can risk.
Contracts, formal and informal, and negotiation pervade the series. I am only halfway through the season, and I don't want to provide too many spoilers, but here are some of the contractual/transactional interactions that arise:
- Has a school principal been effectively terminated from employment if he has been informed of his termination but does not agree to it? If he responds by setting up a rival school and sets out to poach his former employer's students, has he breached any obligations absent a covenant not to compete?
- If an art collector agrees to exchange paintings she has purchased from a gallery for new paintings by the same artist of equal quality, is that a subjective condition of satisfaction or a an illusory promise, given that the collector seems to have total discretion to determine whether the substitute paintings are of equal quality?
- Can a young man get out of an arranged marriage when: the prospective bride and groom have no real connection, and the groom has fallen for another woman; and the bride's family has asked for additional consideration above the amount agreed upon at the start of the arrangement?
- If an orthodox Jew providing catering services for a secular tv producer promises to supply orthodox Jews who will perform as extras on demand, has he breached when he substitutes hipsters for the orthodox Jews?
I expect I will add a Part II to this post once I finish the season.
Wednesday, March 31, 2021
Episodes is easily on my list of top ten favorite sitcoms of all time. Perhaps top five, but it's crowded at the top. I was thinking about the show and regretting that I wasn't blogging while I was watching it, because there was a lot of blog fodder in that show.
I've got a bone to pick with the show runner who came up with all the material involving Sean's (Stephen Mangan, pictured far left) former writing partner, Tim (Bruce Mackinnon). I don't know about the intellectual property issues between Sean and Tim. Those seem pretty interesting, but the real mess involves Eileen (Andrea Rosen), who acts as agent for Sean and Berverly (Tamsin Greig, near left) but also represents Tim. I would think some sort of fiduciary duty and conflict of interest rules would apply, since their interests are clearly adverse.
But the main issue that I've been thinking about lately is mitigation of damages in a Parker-like context. Sean and Beverly come over from England because the delightfully slimy Merc Lapidus (John Pankow) entices them by promising to let them write an American version of their hit comedy, Lyman's Boys. That show stars a droll English headmaster at a boarding school. Merc represents that the actor who played Lyman in the English series would also star in the American version.
And then the changes roll in. The English bloke is rejected and replaced with Matt LeBlanc, who lacks the headmaster's reserve and urbanity. The boarding school becomes a public school, and the headmaster becomes a hockey coach, which is much more fitting for Matt LeBlanc's character, as played, with bottomless self-effacement, by Matt LeBlanc. Sean and Beverly ride it out, and it's a very bumpy five seasons, mostly because Sean really wants to make it in Hollywood. Beverly sours immediately. But the first season provides a great set of Parker-esque hypos. At what point can Sean and Beverly back out of their contract with the network? How can the network mitigate? Is a show (Pucks) about a crass hockey coach who is constantly hitting on the sexy school librarian a good substitute for a show (Lyman's Boys) about an erudite headmaster at a school with a significant librarian character who happens to be a lesbian?
Tuesday, December 29, 2020
If you haven't yet seen The Queen's Gambit, I envy you. You have something to look forward to. It's a wonderful series. Everything about it is wonderful. Also wonderful: thanks to CUNY Law Professor Chaumtoli Huq and Shehran Uddin (@SUddin_10), I can share two contracts issues that arise during the series without terribly significant spoilers.
First, and here there is a bit of a spoiler . . . the main character, Elizabeth (Beth) Harmon, is an orphan. She is adopted by a couple, but the husband soon disappears, and Beth develops a complicated relationship with her adopted mother. The mother dies while they are in Mexico for a chess tournament, and Beth calls her estranged, adopted father for help with funeral arrangements and changing her plane ticket. The father, who can't deal with anything, offers a deal: "Get her up to Kentucky and bury her, and the house is yours. Just make the mortgage payments." Beth performs; her father doesn't. Some day, it is to be hoped, the people behind The Queen's Gambit will make a spin-off about the legal proceedings relating to the house that is as accurate and riveting a depiction of litigation as the series is in depicting chess tournaments.
The second contracts issue is less clear-cut. Beth takes money from some conservative Christians who support her chess as part of their campaign against godless communism. Ah, Cold War politics was so quaint. In episode 7, the conservatives ask Beth to issue a statement denouncing communist atheism. Beth says that she has no intention of saying "anything like that . . . because it's fucking nonsense." The conservatives seem a bit surprised by Beth's agnosticism but what really concerns them is the breach of an implied contract. They point out that they had supported Beth in the past and had already spent money for Beth's upcoming trip to Moscow for a tournament. Beth responds by writing a check, reimbursing the conservative organization for its past contributions to her chess career. So ends Beth's relationship with the conservatives.
In the series, the showdown with the conservatives propels the plot towards other characters who can help Beth, financially and spiritually, to compete in the chess tournament in Moscow. But here again is an opportunity for a legal spin-off. Suppose the conservatives sue Beth for breach. Sure, she has returned the money they fronted her, but they could still claim that she was still unjustly enriched. With their support, she traveled to tournaments and won prizes. She did not share that money with the people who paid for her travel and accommodations. Can they recover? It will be hard for Beth to deny a contract when she repaid the money rather than treating the organization's prior support as gratuitous. But what was their expectation? Apparently, it was that Beth would issue a statement somehow establishing a connection between Christianity and her success at chess. Is her failure to issue such a statement legally cognizable harm?
Can they claim that Beth was unjustly enriched when it was Beth's talent, rather than their money, that won the tournaments? It seems that there is an argument that Beth benefitted, beyond the winnings at particular tournaments, from the travel to competitions that the conservatives facilitated. She advanced her career and her ranking, which entitled her to play in more prestigious tournaments against other grandmasters. But they clearly did not do so in expectation of payment. We would have to scour the communications between the parties to see whether there were terms and conditions or whether, and this seems unlikely given what we know of her, Beth somehow mislead the conservatives into thinking that she was more sympathetic to their perspective than she in fact was. But that would take us beyond the realm of contracts, as a fraudulent inducement claim would result in rescission but no damages, given that Beth has already repaid the funds she received.
Here is the trailer for the show. It's not a very good trailer; it makes the show seem much more conventional and melodramatic than it is. There is melodrama, but the melodrama is spaced throughout a series that is well-paced, beautifully filmed and acted, unprecedentedly smart about the world of chess, and thoroughly engaging without being histrionic.
Friday, November 20, 2020
Now we are not your typical website that will believe whatever palaver the company serves up about its motivation for including the cake recipe. So we will not endorse the idea that the aim was to get consumers to more carefully scrutinize the ToS. If you want that fairy tale, you can read it here. But the real reason for the recipe is more obvious from stories you can read here and here. The rollout of NBC's streaming service was delayed. It had to do something to get people to notice the rollout and to distract from the ugliness that delayed it. So, some clever marketing person came up with the cake dealy, and they threw it into the ToS. Cute.
Make no mistake, the chocolate cake recipe may be original to "Grandma," but the ToS are pure, nasty, corporate boilerplate, including:
- terms that can be modified by updating the ToS online and that online modification counts as "notice";
- provision that a consumer's continued use of services after a modification will be treated as assent to modified terms;
- expansive claims to licenses to make use of uploaded user content, including an express renunciation of any expectation of privacy or confidentiality with respect to such content;
- warranty disclaimers;
- limitations of liability;
- an arbitration clause;
- a class action/class relief waiver;
- a provision that consumers will not disclose of facts relating to arbitration
Bake that for 30-40 minutes at 325 degrees, and Grandma will no doubt box your ears for bargaining away your legal rights so that you can stream Supernatural.
Sunday, November 1, 2020
This SNL skit is terribly misleading. It is the biggest scandal since the last scandal that was the biggest scandal. The idea that Kellyanne Conway escapes from the stresses of her job by spending time with her loving family could only be the perverse concoction of a liberal media fever dream.
Monday, October 12, 2020
Spoiler alert: this post reveals the plot of the first episode. If you are the kind of person who watches Coen Brother joints for the plot, read no further. Ever.
The setup for the current Chris-Rock featuring season of Fargo consists of a series of contractual agreements. Mind you, there may be legality issues that would cause the contracts to be unenforceable, but the parties to the contracts are unlikely to resort to legal process.
The story unfolds like a cock-eyed fable. First, we have the Jewish mob, but then the Irish mob arrives in town (the town in question is Kansas City). The two gangs work out a deal. The Jewish mobsters trade the youngest son of their leader in return for the youngest son of the Irish mob's leader. The boys switch households and are presumed to be hostages to keep the peace between the mob families. Along the way, they may bridge the cultural divide and promote harmonious future dealings. The deal is sealed, significantly for our purposes with a spit handshake. Significantly because, in my view, the spit is consideration. No spit, no deal.
It doesn't work out. The Irish boy, who becomes a very interesting character called Rabbi Mulligan, betrays his new family, allows the Irish mob into the Jewish mob's headquarters, and mass murder ensues. Rabbi Mulligan is encouraged to kill the Jewish boy who has replaced him with his own mob family. He does so with some reluctance. He is, after all, a little boy.
In the next iteration, the exchange occurs between the Irish mob family and the Italian mob family. The approach to consideration has not changed. Both leaders spit into their hands and shake, and the exchange takes place at a pre-arranged time and location. Rabbi Mulligan is once again exchanged, this time for a young Italian. This time, the Italians breach the agreement, committing pretty much the same mass murder in pretty much the same (now Irish) headquarters. Rabbi Mulligan now gets to shoot his own father. This experience may shape his attitude towards attributes like loyalty in succeeding episodes, but I won't go there.
This deal worked out so well for all involved that the winning party, which if history serves as any guide, is destined to be the losing party in the third go-round, decides to enter the same deal with the new kids on the block, the Black mafia, headed up by Chris Rock. Chris Rock gives up his son in exchange for a little Italian boy. Rabbi Mulligan looks after the little Black boy in the Italian household, where he is largely neglected and made to subsist on peanut butter sandwiches. Times change; consideration morphs. This time the deal is sealed in blood. No blood, no deal.
The emphasis on the spit-shakes and the blood-shake is a useful illustration, in my view, of Lon Fuller's three functions of consideration. All who witnessed the handshakes will attest that both parties spit or cut themselves before shaking. All present regard that as evidence of a bargain. Evidentiary function: ✓. The spit, and even more so, the blood, satisfy the cautionary function: ✓. And once again, with all the witnesses, there could be no doubt that third parties would understand the significance of the action. Two men shaking hands on a street could mean anything. But if they spit into their hands first, or if they cut their hands first, that's a bargain. Channeling function: ✓.
Mind you, none of it makes any sense as a plot device, given that the bargain never had the desired effect before, but I don't go to the Fargo series at this point looking for plots that are entirely coherent. After all, is it really likely that Billy Bob Thornton could walk into a mob headquarters (in season 1), kill everybody, and walk out while the FBI has the joint staked out? Mind you Key and Peele would not be my top choices as detectives (it was pure casting genius), but still. In season 2, there was the absurd plot device of UFOs showing up just when the body count was at its highest, and at no other time. That was actually annoying. And season 3, which was a lot of fun, don't get me wrong, didn't make a lick of sense. So I'm willing to suspend disbelief and accept the premise that the Italian mob and the Black mob have a deal. I'm looking forward to finding out just how it is going to be breached. This is especially so because episode 1 could have been devised by Lon Fuller to illustrate his understanding of consideration.
Tuesday, July 7, 2020
If you are flying on a U.S. commercial airline, you often have two options: the major carriers (US Air, American, United, Delta and their affiliates) or Southwest. The two represent very different models. The major carriers build their businesses by catering to the needs of business travelers, who fly frequently and whose employers usually pay for their flights. These travelers seem to value their personal comfort and convenience very highly, because they are willing to pay extra for: leg room, a guaranteed seat, the ability to check a bag, early boarding, and the ability to put a carry-on in the overhead bins (really! United charges for this "privilege" if you buy the cheap seats). Actually, the business travelers value personal comfort and convenience neither more nor less than economy passengers, but the business travelers aren't paying with their own money.
If you are the sort of customer to whom these airlines cater, you can expect great treatment. You will find that the people who work for the airlines are attentive to your needs, and they will go the extra mile for you because they want to keep your business. And most of your travel experiences will be pleasant. You pay extra, so you don't have to wait in line, and you interact with the employees lucky enough to work with the happy, pampered customers rather than with the grouchy, put-upon infrequent flyers on whom the airline relies in bulk but not individually.
Southwest has a different model. It treats all of its customers pretty much the same. For a small fee, you can jump the line, but in most situations, it doesn't make that much difference. If you don't pay the small fee, you will most likely still get an aisle or a window seat, perhaps at the back of the plane, but still. Southwest flying is no-frills flying, but it is brisk and efficient; the crew is friendly and does not take itself too seriously. Above all, they don't treat any of their customers like unwelcome interlopers.
Whose model works better? Well, according to Wikipedia, US Air went bankrupt in 2002 and then again in 2004. Delta absorbed two bankrupt airlines, Pan Am and Northeast, before declaring its own bankruptcy in 2005. United entered bankruptcy in 2002 and emerged in 2006. American waited until 2011 to file for bankruptcy. They all would have gone bankrupt after 9/11 but for a $15 billion bailout from the federal government. Southwest has never filed for bankruptcy. If financial sustainability is the criterion, the major carriers do not get high marks.
But imagine, if you will, that you and a group of people are put in a room and asked to design a just airline. Imagine that you are behind what John Rawls called a veil of ignorance: you do not know who you will be when you leave the room. You do not know if you will be young or old, you do not know your gender identity or sexuality, you do not know if you will be able-bodied, you do not know your race, ethnicity, religious views, native language. Most importantly for the exercise, you don't know whether you are rich or poor. You don't know whether your employer will pay for/reimburse you for travel, and you don't know whether you will be a frequent flyer. You just know that you may need to fly from time to time. I will go out on a limb and assume that you will prefer not to be treated like trash.
My guess, is that you would design an airline a lot more like Southwest than like the major carriers.
As for me, I'm with Elaine, our goal should be a society without classes.
Saturday, May 30, 2020
Will there be a time when the word "Zoom" will again trigger the wave of nostalgia it did for me up until the experience of the last few months replaced nostalgia with revulsion?
Hat tip to Bridget Crawford over at The Faculty Lounge for reminding us of the older meaning of "Zoom."
Sunday, May 24, 2020
Building on the runaway success of yesterday's frivolity (silence is not necessarily ridicule), today was invite our remaining readers to share ideas for movies (or films if they are fancy) on the theme of contagion and confinement.
We'll get things rolling with two picks:
The Andromeda Strain tops the list for being about contagion within the necessarily confined quarters of an isolated lab.
And then there's World War Z, which is just fun, even though I usually hate zombie movies. Also, the zombies' "fleetness of foot" reminds me of my favorite dialogue from Breaking Bad:
Thursday, July 18, 2019
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.
Wednesday, May 29, 2019
Was Leaving Neverland a breach of contract by HBO based on its airing of a 1992 Michael Jackson concert?
HBO's Leaving Neverland documentary, detailing the allegations of sexual abuse leveled at Michael Jackson, has resulted in an interesting lawsuit in the Central District of California, Optimum Prods. v. Home Box Office, CV 19-1862-GW(PJWx) (behind paywall).
Because Jackson is dead, there is no defamation claim to be brought; therefore, this lawsuit is grounded in a contract between Jackson and Optimum's predecessor entity and HBO regarding televising one of Jackson's concerts from his Dangerous world tour, which HBO aired in October 1992. The contract contained a provision prohibiting HBO from making "any disparaging remarks concerning" Jackson. Optimum alleges that HBO has breached this provision by airing the Leaving Neverland documentary.
Naturally the contract also contained an arbitration provision, which provided that the parties would choose an arbitrator and, if they couldn't agree, eventually the Superior Court of the State of the California for the County of Los Angeles would select the arbitrator. Optimum initially filed its complaint in state court, but HBO removed it to federal court based on diversity jurisdiction. Optimum does not dispute the existence of diversity jurisdiction but argues that the arbitration provision also acts as a forum selection provision requiring the litigation be heard by California Superior Court in Los Angeles County.
The court declines to construe the arbitration provision as conferring exclusive jurisdiction to California state court. The arbitration provision does not discuss exclusive jurisdiction at all. The plain language of the provision only provides the state court with one responsibility: choosing an arbitrator if the parties can't agree on one. That is not a conferral of exclusive jurisdiction.
There is also a dispute between the parties over whether the suit needs to be arbitrated. The court is torn on that issue. The American Arbitration Association's rule that arbitrability of a contract be decided by the arbitrator came into effect after the parties had signed the 1992 contract, and the court is hesitant to apply it retroactively. There is precedent to support retroactive application but the court thinks it doesn't make sense to pretend that the parties "clearly and unmistakably" agreed to be bound by rules that did not even exist. None of the precedent provided to the court was binding, so the court requests that the parties discuss the issue further at an upcoming hearing.
Tuesday, October 16, 2018
As the Hollywood Reporter reports, the license agreement expired between Dish Network and Univision more than three months ago, and the parties are fighting it out in federal court, pointing fingers at which of them (if any, I suppose) breached the license agreement, and whether there are any additional IP claims in play. It's a high-profile case with a real impact for Hispanic viewers, who probably just would like to get Univision back on Dish. Given the litigation, that might take a while.
Wednesday, June 20, 2018
Recently a video went viral showing a 2016 altercation around an umpire ejecting Mets pitcher Noah Syndergaard after he threw a fastball behind the Dodgers' Chase Utley. Umpires wear microphones during Major LeagueBaseball games, and the resulting (often loud and profane) discussions with Mets players and especially Mets manager Terry Collins was recorded.
The video recently surfaced in an apparent leak, because MLB has announced its intention to try to scrub the video from the internet. MLB's reason for this is that it violates a "commitment" that "certain types of interactions" involving umpires during baseball games would not be made public, claiming it was "in the collective bargaining agreement" and that there was "no choice" but to scrub the video from the internet. Indeed, according to one report it had already been scrubbed.
Not so fast, though, because I found it still embedded in news reports about it. It's hard to get anything to vanish from the internet, especially once it's gone viral, but it's not that difficult to locate this video at all.
And it's not hard to see why it went viral. It's a fascinating glimpse into a part of the game fans seldom get to see. As others have pointed out, the umpire does a fantastic job in the clip, so it's hardly like he's being cast in a bad light. The manager doesn't even come across all that poorly. In fact, in my opinion, the party that comes out of the clip looking the worst is Major League Baseball and its confusing way of handling the explosive Chase Utley situation.
It's unclear what "interactions" were agreed to be withheld from the public, but this one is certainly an interesting one. I'd love to know what the contract terms actually are.
Wednesday, January 31, 2018
Someday I will blog about things other than NDAs again but I feel like every time I open the internet there's another story about an NDA. Everyone today was talking about last night's interview of Stormy Daniels on Jimmy Kimmel Live!, which was a bizarre series of answering-questions-with-questions and playing coy and talking around the main issue, which was her alleged affair with Donald Trump in 2006. You can find lots of articles online; here's one that lays it out. Those trying to summarize the interview generally seem to assume that Daniels must be restricted by an NDA, because she could say if there wasn't an NDA, but it's the proving of a negative, basically; the reporters are trying to make sense of the blank space the non-answers leave in their wake.
It's all had me wondering about the role NDAs played--or maybe more importantly, didn't seem to play?--during the Clinton impeachment. Lots of details about Clinton's sexual harassment history came out during the impeachment, and from my brief research into it, it doesn't seem like there were any NDAs in play. Does anybody have other information about this? How do the number of NDAs around Trump in play today shift our perspective, conversation, and legal analysis?
Tuesday, November 28, 2017
I spent my Thanksgiving fretting about net neutrality, so I thought for my first blog entry back from the holiday I'd let us indulge in a bit of speculation about Chip and Joanna Gaines and their future plans. My love for HGTV is well-known to my Contracts students, as I am constantly mining it for hypos, so I read with interest this Vanity Fair piece stating that Chip and Joanna from "Fixer Upper" have pitched another show to other networks. The article notes that Chip and Joanna's contract with HGTV's parent company probably prohibits them from doing another home-improvement show for another network, so it speculates that they're pitching some other type of show, possibly a talk show.
Would you watch Chip and Joanna do a non-home-improvement show? What kind of show? And do you think networks will successfully negotiate for broader non-competes to keep their stars off competing networks altogether in the future?
Wednesday, September 27, 2017
A recent case out of the Southern District of New York, Betty, Inc. v. Pepsico, Inc., No. 16-CV-4215 (KMK) (behind paywall), tackles a fairly common issue: Often people make pitches based on ideas they have. Ideas aren't copyrightable, so often the only protection people have is contract-based. But, also often, they don't actually have a written contract, so they have to rely on an implied-in-fact contract theory. However, as this case reiterates, an implied-in-fact contract is more than just a conclusory allegation that "oh, we had an agreement that they'd pay me something for my pitch."
The case in question involves an advertising agency, Betty, who pitched a commercial to Pepsi for use in the Super Bowl. Pepsi invited Betty to participate in a telephone pitch meeting, during which Pepsi provided the "general outline of what it envisioned for the Super Bowl commercial," followed by a more formal face-to-face presentation. At the presentation, Betty presented eight different ideas and provided Pepsi with a USB drive with some concepts contained on it. Pepsi allegedly reacted favorably and asked for more details about some of the concepts.
About a month later, Pepsi informed Betty that it had decided to go in another direction with the commercial. However, when Betty saw the commercial during the Super Bowl, it thought it was substantially similar to one of the concepts it had pitched to Pepsi. The decision itself is behind a paywall but the lawsuit's filing was reported in some outlets.
This lawsuit followed, alleging copyright claims as well as a variety of contract-based claims. The breach of contract claim faltered, though. In the complaint, it consisted of just three paragraphs of conclusory allegations that didn't appear to rise to the level of an agreement. In the most generous reading, it sounded like an "agreement to agree" that can't be enforced. The complaint contained absolutely no terms of the contract. The fact that the contract was an implied-in-fact contract didn't excuse the plaintiff from having to allege facts sufficient to allow the court to draw an inference that the parties had entered into a contract based on their conduct and the surrounding facts and circumstances. That didn't happen here. Therefore, the court dismissed the breach of contract claims.
The copyright infringement claim, though, survived, and the court granted leave to amend on the breach of contract claim, so the plaintiff does live to fight another day.
(This post has been edited to correct a typo in the previous version. Pepsi provided the "general outline" over the phone, not Betty.)