ContractsProf Blog

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.

Non-Disclosure Agreements and the Public Interest

In 2019, David Hoffman and Erik Lampmann published Hushing Contracts, which among other things, specified the ways in which non-disclosure agreements (NDA) externalize the social costs of unsavory behaviors by corporations and their agents. They address the danger that NDAs can protect people against sexual harassment claims and may enable them to move from job to job despite a history of tortious or even criminal misconduct.

We posted eighteen months ago about the Speak Out Act, which rendered NDAs unenforceable with respect to allegations of sexual assault or sexual abuse. Stacey Lantagne (left) was posting about NDAs and sexual harassment on this blog long before then.  We have posted repeatedly about the limits of NDAs imposed on employees of the Trump campaign and the Trump administration. Last week, a new Trump NDA issue arose and a second one re-surfaced.

Previously, we have focused on NDAs in the #metoo and First Amendment (free speech) context.  The latest Trump NDA scandal has to do with his alleged use of the "n-word" in connection with the reality television series, The Apprentice. Former producer for the show, Bill Pruitt, published the details on Slate.  From my perspective, as someone who regards reality television as the monetization of the basest of human qualities, the story has a Leopards Ate My Face vibe to it. Mr Trump, whatever his virtues, is not known for his moral probity.  The 20-year NDA that threatened criminal sanctions for breach should have been a tip-off that this was not your usual work gig.  Is anybody surprised by this latest confirmation that there is no social convention that Mr. Trump will not flout? 

Well, I guess the pee tapes thing wasn't true.

It is common to ruminate in such situations whether it would have have made a difference if Mr. Pruitt could have come forward with his allegations at some point between the famous descent on the tacky gold escalator and the 2016 elections. As someone who, after the release of the "Access Hollywood" video, confidently predicted "he'll never be President," I can't very well say.  Perhaps with Mr. Pruitt's NDA expiring, others will also expire and we will benefit from a series of revealing anecdotes about Mr. Trump saying the sorts of racist, sexist, homophobic, etc. things he undoubtedly routinely says when the mikes are off and all auditors are gagged by NDAs.

But being offensive is his brand.  He's already been found liable for defamation in connection with a sexual assault, for fraud in connection with both his main business and his "charitable" foundation, and now he's been found guilty on 34 felony counts.  While there is some dispute about the application of this particular statute in these particular circumstances, I don't think anybody can doubt that the underlying conduct occurred and is not very Presidential.  So he used some salty language? Why would anybody care about that if they don't mind him saying that he will be a dictator on day one of his second term, if he gets one?

But I digress, the real question is whether public policy can or ought to ban NDAs that prevent people from reporting such offensive conduct. Hofmann and Lampmann articulate an expressive theory of NDAs, arguing that we should concern ourselves not only with the law's commands but with the messages legal actors send. If courts uphold NDAs that facilitate impunity for sexual predators, the law expresses indifference to the plights of the victims of sexual predators and to the problem of sexual predation more generally.  Beyond the use of an offensive racial epithet, here, arguably, Mr. Trump made a decision that had an adverse impact on someone's employment based on the potential employee's race.  Does it matter that the employment opportunity was part of a reality television show?  Would we want the law to set aside NDAs when they stand in the way of unmasking racists? How about if the racists later run for public office? 

The other Trump NDA news is that, as Michael M. Grynbaum reports in The New York Times, a NY appellate court ruled last week that Mr. Trump's suit against his niece, Mary Trump (her book is at right), can proceed.  [Aside: the Times calls her his "estranged" niece, .  I'm not sure what it means for a niece to be "estranged." Again, Mr. Trump operates in ways that raise questions we thought we'd never have to ask ourselves.] The issue was whether Mary Trump violated the NDA entered into in connection with a 1999 financial settlement relating to the will of Mr. Trump's father when she shared information with the Times that resulted in article alleging that Mr. Trump had engaged in tax evasion and fraud.  The appellate division found that Mr. Trump had established a basis for a breach of contract claim, although it noted that issues regarding in the scope and enforceability of the NDA remained.  Mr. Trump's attorney proclaimed that Ms. Trump had committed a "blatant and egregious breach of contract," which, if nothing else, is blatant and egregious hyperbole and also irrelevant, unless New York has some statute that allows for special damages in the case of "blatant and egregious" breaches of contract.  Either it's a breach or it's not. Pounding the table with extra verbiage is not a sign of strength or confidence.  It's a sign that someone is wont to behave like a toddler needing a nap rather than a professional who will develop arguments applying the law to the facts.

The Endless Debate over Sandwiches May Now End, at Least in Indiana

We have covered this topic before. The topic is almost as old as this Blog, with our first post on the subject dating from 2006. We covered the sandwich debate here in 2008, when a Massachusetts court ruled that a burrito is not a sandwich. We did it again when Taco Bell turned the issue into a commercial. I wish I didn't have to cover it again, but at least this time we have something of a resolution. Moreover, Blogger Emerita, Meredith Miller (left) shared the story with me, and when Meredith feeds me stories, I rush to post in the hope that she will feel bad that I have to do so and maybe she'll come back and post her own stuff.

As Praveena Somasundaram reports in The Washington Post (yes, this is national news), Allen County Superior Court Judge Craig J. Bobay has ruled that burritos and tacos are, in fact, sandwiches. The are "Mexican-style sandwiches," to be precise.  Ms. Somasundaram took a deep dive in reporting the case, noting: the 2006 Massachusetts decision; Justice Ginsburg's view, voiced to Stephen Colbert on The Late Show in 2018, that hot dogs served on buns are sandwiches; and the "cube rule," according which a taco (and a hot dog for that matter) is a taco, and a burrito (as well as a corn dog) is a calzone.  It all turns on the location of the starch.

Judge Bobay broke out of the box, or the cube, ruling that tacos are not tacos, but sandwiches.  Burritos are not calzones.  They too are sandwiches.  But resolving whether tacos and burritos are sandwiches did not necessarily resolve the case.  It involved a zoning restriction, which prohibited fast-food restaurants, but carved out an exception for made-to-order sandwich shops, so long as they do not serve alcohol, have outdoor speakers or drive-throughs, or provide outdoor seating. Presumably, the Famous Taco franchise that Judge Bobay allowed made its tacos and burritos to order.  

You may be wondering what any of this has to do with contracts.  If I were on the job market, I think I would say, "the relationship is orthogonal."  Ilya Somin provides a more straightforward and interesting take on the case on The Volokh Conspiracy, focusing on issues of interpretation and zoning restrictions.  Like a talk-show guest, he deftly pivots at the end to hawk his latest scholarship, co-authored with Joshua Braver on The Constitutional Case Aaainst Exclusionary Zoning.

Would Burger King fit the exception, or it is no longer the case that you can "have it your way" at Burger King?

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.  

Friday Frivolity: John Oliver on FAA Oversight

John Oliver devoted a lengthy segment to Federal Aviation Administration (FAA) oversight of aircraft in the aftermath of a door falling off an Alaska Air plane.  The contracts angle on all this has to do with the Boeing/McDonnell Douglas merger and the FAA's relation to Boeing, which seems to involve a lot of delegation to Boeing of FAA oversight over Boeing.

John has a lot of say about Boeing's merger with McDonnell Douglas.  The argument is that Boeing built its reputation on the reliability of its planes.  Its culture was that the engineers, not the corporate executives, drove the company.  That all changed after the merger, as stock price, rather than rigorous focus on engineering challenges, came to dominate the company.  That corporate culture produced the 787 Dreamliner, which was quickly grounded, and the 737 Max, two of which crashed.  Those crashes were apparently due to problems with the aircraft's navigation (MCAS) system and inadequate pilot training, which involved no acknowledgment of the existence of the MCAS system.  The 737 Max was also grounded for two years.

So where does federal regulation fit in here?  Well, it turns out FAA inspectors were incapable of understanding what it was they were regulating.  Boeing engineers described the responses of FAA regulators to their presentations as like dogs watching television.  As a result, for five decades, the FAA has delegated its oversight to Boeing employees, and in 2005, Boeing successfully lobbied for less vigorous regulation of its aircraft.  Now, the Boeing employees who are seconded to the FAA increasingly complain that they are under pressure from the company to say that all is fine.

For those who want to learn more, and perhaps enjoy a few uncomfortable, gallows-humor type chuckles, and now, this . . . 

 

What Batch Arbitration Looks Like

Ben Davis of University of Toledo (right) has called to our attention the language relating to arbitration in Roku's new terms of service.

It is unbelievably long and complicated.  We note, first, the ludicrously specific instructions for opting out (Section 1(L)): 

L. 30-Day Right to Opt Out. You have the right to opt out of arbitration by sending written notice of your decision to opt out to the following address by mail: General Counsel, Roku Inc., 1701 Junction Court, Suite 100, San Jose, CA 95112 within 30 days of you first becoming subject to these Dispute Resolution Terms. Such notice must include the name of each person opting out and contact information for each such person, the specific product models, software, or services used that are at issue, the email address that you used to set up your Roku account (if you have one), and, if applicable, a copy of your purchase receipt. For clarity, opt-out notices submitted via any method other than mail (including email) will not be effective. If you send timely written notice containing the required information in accordance with this Section 1(L), then neither party will be required to arbitrate the Claims between them.

Why mail, Roku?  Why not carrier pigeon?  What happens if Roku updates its terms?  Does the user have to keep on top of changes in terms of service and opt out anew with each iteration of the arbitration provision?  And what if you update your service or the software itself updates.  Does that require a separate trip to the post office?

More striking is the language on batch arbitration, a topic we discussed previously here, and which Roku calls "mass arbitration." 

K. Mass Arbitrations. If 25 or more Claimant Notices are received by a party within 180 days of the first Claimant Notice that the party received, and all such Claimant Notices raise similar Claims and have the same or coordinated counsel, then these Claims will be considered “Mass Arbitrations.” You or Roku may advise the other if you or Roku believe that the Claims at issue are Mass Arbitrations, and disputes over whether a Claim meets the definition of “Mass Arbitrations” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable.

Mass Arbitrations may only be filed in arbitration as permitted by the process set forth below. Applicable statutes of limitations will be tolled for Claims asserted in a Mass Arbitration from the time a compliant Claimant Notice has been received by a party until these Dispute Resolution Terms permit such Mass Arbitration to be filed in arbitration or court.

Initial Bellwether: The bellwether process set forth in this section will not proceed until counsel representing the Mass Arbitrations has advised the other party in writing that all or substantially all the Claimant Notices for the Mass Arbitrations have been submitted.

After that point, counsel for the parties will select 20 Mass Arbitrations to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 10 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. You and Roku acknowledge that resolution of some Mass Arbitrations will be delayed by this bellwether process. Any remaining Mass Arbitrations shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 1(K).

A single arbitrator will preside over each Mass Arbitration chosen for a bellwether proceeding, and only one Mass Arbitration may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.

Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Mass Arbitrations, with the mediator’s fee paid by Roku. Counsel for the claimants and the other party must agree on a mediator within 30 days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

Remaining Claims: If the mediation does not yield a resolution of all remaining Mass Arbitrations, the requirement to arbitrate in these Dispute Resolution Terms will no longer apply to Mass Arbitrations for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether proceedings. Such Mass Arbitrations released from the requirement to arbitrate must be resolved by bench trial in court in accordance with Section 4.

If Mass Arbitrations released from the requirement to arbitrate are brought in court, they are subject to a waiver to jury trial by both parties. Claimants may seek class treatment, but to the fullest extent allowed by applicable law, the class sought may comprise only the claimants in Mass Arbitrations for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.

Courts will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with these processes.

Welcome to the future, Roku Users.  Enjoy your viewing.

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.

Fargo Season 5: Of Contracts, Sin-Eating, and Redemption

At the center of the narrative in the Fargo series' brilliant Season 5, although you don't know it until the epilogue, is a contract.  The series is so good, I have to write about it, and fortunately, contracts abound.  Unfortunately, there's no way to do so without spoilers, so if you still want to watch the series, let this serve as your SPOILER ALERT, and skip down to the trailer at the bottom.  If you've already watched the season or don't think you will, maybe you'll be interested enough in the profound insights into contracts law that the series elucidates to read on.

The protagonist of the series is Juno Temple's Dorothy "Dot" Lyons (right), but the hero of the contracts narrative is Sam Spruell's Ole Munch (below, left), one of the strangest characters to ever appear in an American television series.  I'm ready to give Mr. Spruell the Emmy for best supporting actor right now (sorry Jon Hamm, you were great too!). 

Ole Munch is a centuries-old sin eater.  That is, he is a man paid a pittance to eat the sins of the dead so that the well-to-do can ascend to heaven. As he explains in the final scene, he ate the sins because he was starving.  There is a sin-eating scene far earlier in the series, and Mr. Spruell is amazing in evoking both ravenous desperation and consciousness of the eternal weight that his character is taking on.

Munch was a sin-eater in Wales, but he bears a Swedish name, and his accent is mostly that of a man who rarely speaks and has no confidence in his ability to make his meaning understood, so estranged is he from communication through words rather than violent action.   When one has lived for centuries, time is not of the essence, so he speaks deliberately. 

As Anthony Breznican explores in this interview in Vanity Fair with Fargo creator Noah Hawley, debt is a theme running throughout Season 5.  Dot's mother-in-law, portrayed brilliantly (another Emmy? -- do they still do supporting actor and supporting actress?) by a perpetually scowling Jennifer Jason Leigh, has built a fortune on debt collection.  If you ever wondered what would have happened if William F. Buckley had gone into debt collection rather than journalism, now you know.  Dot's first husband, realized with boundless malevolence and self-delusional grandeur by Jon Hamm, believes himself to be the beneficiary of some divine covenant, the details of which are difficult to reconcile with his thirst for power and vengeance.  One part of that covenant is his belief that his serial wives owe him loyalty and obedience unto death, which he repays with the back of his hand.  Having put wife #1 in the ground and married wife #3, he sets the plot in motion with his desire to collect the accrued debt of marital submission from Dot, who was wife #2, with additional principal due to her betrayal of him, plus interest compounded during her extended absence. 

Munch is obsessed with what is owed him, because his interaction with other men and women is transactional.  He is offered money to do a deed, and then a debt is owed.  He announces to a stranger that "I live here now," and "here" is her home.  In exchange, in a reworking of the timely end of Steve Buscemi's "funny looking guy" character in Fargo, the movie, Munch does her the favor of axe-murdering her worthless son.  

Jon Hamm's Roy Tillman sets the plot of Season 5 in motion when he contracts with Munch to kidnap Dot and return her to Tillman.  The kidnapping scene reworks the kidnapping scene in Fargo, the movie, with more unguent.  Munch's accomplice ends up with facial burns and Munch loses much of his ear.  The kidnapping succeeds for a bit, but Dot escapes, killing the accomplice in a manner far more innovative than the wood chipper scene in the movie.  She brains Munch with a shovel, and he comes to his senses enough to vanish before the police arrive.

Both Tillman and Munch think that a contract has been breached.  Tillman plans to have Munch executed for failure to perform.  Munch asserts an affirmative defense of misrepresentation.  He had been told to kidnap a woman.  Tillman did not mention that the woman was, in fact, a tiger.  Kidnapping a tiger is a very different job from kidnapping a woman.  It requires different personnel decisions and more consideration.  Munch eventually blinds his would-be executioner (Tillman's son, Gator, whom you might know as Steve from Stranger Things), and he frees the Tiger so that she can do what she needs to do.

In the final scene, we learn that Dot and Munch have very different conceptions of contracts, and I think Dot has the stronger argument.  He explains, referring to himself, as he usually does, in the third person, "A man's flesh was taken.  Now a pound is required in return."  Dot replies, after enlisting the giant, kilt-wearing mercenary to help her make biscuits, that she was not a party to any contract.  He took on a risk.  She was just the table on which he stubbed his toe.  The table doesn't owe him anything and being mad at the table doesn't make a lot of sense.  

Moreover, she adopts a contextual approach to debt.  Dot's first husband (Roy), her mother-in-law (Lorraine), and Munch are all obsessed with debt collection.  Roy collects debts that are not due or at least are not due to him. Lorraine enriches herself at the expense of the less fortunate without compassion.  On the contrary, she judges people for their misfortune, and subjects them to her will.  Munch tries to explain that he has a code, and the code requires that debts be paid.  

Dot isn't having it.  She has a counterargument.  Sometimes debts can't be paid.  She asks, "Isn't the better thing, the more humane thing, to say the debt should be forgiven?"  The message might as well be intended for Lorraine, who, in her own small way, still consistent with her transactional approach to life, has learned this lesson.  She has freed Indira Olmstead, the police officer leading the investigation into Dot's kidnapping, from the her debts by making Indira part of her security team.  Indira's debt, by the way, is the product of her husband's irresponsibility and some student loans.  She leaves her husband, whom she catches in flagrente delicto, suggesting that he can leave the toilet seat up on somebody else's life from now on.  And soon she is running Lorraine's security team and serving as her bodyguard, perhaps softening Lorraine ever so slightly with her compassion.

Munch, who has known nothing but suffering at the hands of other men, views contracts much as Karl Marx did.  They reduce human interactions to their cash nexus and alienate us from our species-being.  All Munch knows of the world is sin -- greed, envy, disgust -- and the world he encounters contains nothing but bitterness.

Dot has a different perspective.  She responds to Munch with empathy.  Her family chatters on irrelevantly and performs their wonted rituals.  This forgotten version of humanity surprises Munch.  He has come to seek his pound of flesh but his thought and his violent deeds are arrested.  He does not yet comprehend what he is witnessing but he cannot bring himself to end the encounter.

While Munch has come to collect his pound of flesh, Dot's ditzy husband Wayne reminds them that the game is on at seven.  It's time to set the table, and Dot notes pointedly to Munch, it's a school night.  In the Marxian transactional world governed by the cash nexus, these statements have no value.  A debt is owed; it must be paid.  Talk of sports, or table-setting, or school nights is irrelevant.  But in Dot's contextual world, talk of debt collection must yield to life's more pressing matters, even if each of those matters is of small consequence.  The debt will still be there once the game is over, the table has been set, the meal has been eaten, and Dot's daughter has gone to bed.  

And then Dot offers him a new experience.  Consume something that was not created for its exchange value and is not the product of sin.  Consume something made with "love and joy.  And be forgiven."  Well, that's laying it on a bit thick.  But still, the point is that exchange, including contractual exchange, does not have to be divorced from fellow-feeling.  Dot realizes the potential of mutually beneficial transactions undertaken between parties who want to enhance each other's well-being.  She responds to Munch's Marxian perspective with that of a Karl Llewellyn or an Arthur Corbin and restores the humanitas to human exchanges.  Sometimes, the debt will never be paid, because life is not all bitterness and pain.  It also can be filled with love and joy, if you just fill your mouth with the right stuff.

How can this scene possibly be convincing?  How can an ancient warrior be swayed by the taste of home-made biscuits?  I have no great faith in the comfort foods of the upper Midwest.  But the acting makes the scene, although each of the characters is a bit off, seem natural.  I am convinced that Munch's perspective is altered because that is what I see in Sam Spruell's face as he eats the biscuit.  I don't know if Sam Spruell is a method actor, but he achieves what method acting is supposed to achieve.  He is not acting.  He is experiencing what the character experiences and that why I can accept this other-worldly encounter with an other-worldly character as right at home in my world.

This was a great season of Fargo, and when we got to episode 8 out of 10, I began to worry that there just wasn't enough time to wrap it all up.  They did, with a bow.  But then the coda, a three-act play in Dot Lyon's living room/dining room, moved the series into a new realm, that of transcendence.

Do yourself a favor and watch!

Weekend Frivolity: Offer and Revocation

Or just a day in the life of an at-will employee?

H/t Shubha Ghosh

 

Paramount's South Park Counterclaims

In March, based on a tip from OCU 1L Austin Manley, we reported that 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.  The earlier post concludes, "Expect counterclaims alleging that HBO has failed to pay the licensing fees."  Austin Manley, having completed his first year of law school, followed up, providing me with those very counterclaims, which Paramount filed on April 19th.

As readers may recall, HBO Max bought an exclusive license to stream episodes of the South Park animated television series.  According to HBO, that license covered existing content plus three seasons consisting of ten new episodes each season.  It alleges that Paramount delivered only fourteen of the promised new episodes while also entering into a separate deal with South Park's creators giving Paramount + exclusive rights to air new South Park content, including movies and specials.

In its counterclaims, Paramount answers in the manner of Officer Barbrady (left): "Nothing to see here, people!  Move along!"  Two sophisticated parties entered into a deal with specific terms.  All of those terms have been complied with, but for some reason, HBO Max is refusing to pay the licensing fees!  

Crucially, Paramount claims that the terms did not specify a number of episodes to be included in each South Park season and then boasts of its delivery for fourteen episodes despite the production challenges caused by the COVID epidemic and the creators' desire to experiment with different formats for the presentation of new South Park material.  Moreover, although HBO Max is refusing to pay for the South Park material that has been delivered and which it is continuing to stream, it has not been charged for the non-existent episodes to which it claims entitlement. 

From Parmount's perspective, COVID had two effects on the production of South Park episodes.  First, COVID restrictions made it impossible for the shows staff to create new 22-minute episodes at their usual breakneck speed.  They could not come together to work as they usually did.  Second, COVID provided ample new material that cried out for South Park's unique brand of social commentary.  The South Park team adapted by creating "supersized" pandemic-related episodes that were wildly popular and gave a tremendous boost to the value of the licenses that HBO Max was already enjoying.  

Paramount therefore seeks $52 million owed under the license agreement on its breach of contract claim.  It also seeks a declaratory judgment upholding its interpretation of the parties' obligations.

Universal Studios Settles Lawsuit over Jimmy Fallon Ride

There's not a lot of law here because the parties settled.  I'm just struck by the strangeness of the idea.  An amusement park ride based on The Tonight Show?  I mean, amusement parks are mostly for kids, right?  Kids who go to sleep on school nights before The Tonight Show, right?  I can imagine one kid seeing the signs for the attraction and asking an older sibling "What's The Tonight Show?"  A common answer, it seems to me, would be, "That's the show that Mom and Dad fall asleep in front of."  I don't think the next line would be "Awesome!  Let's wait in line for that!"

Anyhoo, Katie Rice, writing for The Orlando Sentinel, reports that Universal entered into an agreement in April 2014 with an Austrian company known as DyMoRides.  The two parties had previously worked together on another proposed project that fell through.  Wait, there was an even lamer idea than a Tonight Show ride?  

DyMoRides was to construct the Jimmy Fallon ride, but the parties very quickly started squabbling.  Universal terminated the contract in October 2015, because it alleged that DyMoRide was not completing the project on schedule.  DyMoRide, for its part, claimed that Universal was responsible for the delays, because it insisted on changes once the project was begun, and in March 2021, it sued Universal for breach of contract.  In addition, Universal engaged another company to complete the project but incorporated DyMoRide's proprietary "Flyboard" ride technology without paying for a license.  DyMoRide claimed that it was owed $5 million for its work plus an unspecified amount for the use of its intellectual property.  The ride opened in April 2017.

Universal filed counterclaims in August, 2022, claiming the DyMoRides breached, because the work that it performed had significant deficiencies, requiring an additional $10 million investment from Universal to complete the ride.  Moreover, Universal claimed that it was given a perpetual, irrevocable license to use DyMoRide's technology.  

Well, that's all highly interesting.  It gives an interesting peek into the logistics of amusement park attraction contracts.  Unfortunately, the parties settled in March, and the terms of the settlement were not disclosed. 

Nifty Fact Pattern with a Consideration Issue!

On December 26, 2019, William Stephens completed an application for car insurance through Progressive.  He paid the initial premium, but his check was returned for insufficient funds.  On January 3, 2020, Progressive sent him notice that his policy would be canceled unless he paid by January 12th, which he did not do.  On January 14th, Progressive sent Mr. Stephens notice that the policy was rescinded as of December 26, 2019.  Meanwhile, on January 3, 2020, Mr. Stephens allegedly hit a pedestrian, Franscisco Ball-Rodriguez with his car.  Unable to recover from Mr. Stephens, Mr. Ball-Rodriguez went after Progressive, and Mr. Stephens joined the action, alleging bad faith refusal to pay the claim.

The trial court granted Progressive summary judgment.  On appeal in Ball-Rodriguez v. Progressive Premier Insurance Company of Illinois, the Georgia Court of Appeals affirmed.  Plaintiffs argued that Progressive had waived its right to rescind the policy when it sought to collect premiums from Mr. Stephens.  That argument was foreclosed by clear language in the policy, giving Progressive the right to rescind for non-payment of premiums.  There was no "clear and unmistakable" waiver.

In addition, Plaintiffs made various arguments for why Mr. Stephens had given consideration.  His personal data provided to Progressive was consideration.  His attempt to send a check was consideration.  The court made short work of these arguments.  The provision of personal information was not understood by either party at the time of contracting as consideration for the policy.  Payment was the consideration, and payment was never made.  The insurer should not be punished for granting Mr. Stephens extra time to pay his premium.

At first, it struck me that, at the time of the accident, Mr. Stephens likely did not have notice of his bounced check, and so there might be an argument that he should be covered so long as he paid the premium at some point thereafter.  But it occurs to me that making such allowances would open the way for Better Call Saul-style scams.  Not that I have any reason to think that anything like that was going on in this case.

 

The Truman Show Realized in "Jury Duty"

Yesterday, we posted about the imminent possibility of mental manipulation through brain implants, a world that Philip K. Dick could have easily imagined.  Today, we post about another fictional idea realized.

Thanks to OCU Law 1L Emily Hurt to letting me know about "Jury Duty," a new show on Amazon Freevee.  The show follows Ronald Gladden, a young man who answered an ad on Craig's List and was thus unwittingly cast as himself, a juror, on a mockumentary that follows a jury trial.  I have now watched the first three episodes of the show.  I am not recommending it.  From the reviews, it seems harmless, and Mr. Gladden, now in on the gag, seems delighted with his fifteen minutes of fame.  The point here is that, as with brain implants, the danger of malicious manipulation have already been foretold in the more sinister and yet still hopeful The Truman Show.  

By all accounts, Mr. Gladden is a great stand-in for Jim Carrey's character in The Truman Show.  Like Truman, Mr. Gladden is a kind, receptive person, who rolls with the punches and takes everything in stride.  Unlike Truman, he does not rebel, but he only had to survive seventeen days of shooting rather than a lifetime of 24/7 surveillance.  

Rendy Jones, reviewing the show for RogerEbert.com, provides a rave.  He concludes

The last prank on the audience by "Jury Duty" is how it wrings our emotions more than belly laughs. It's a solid workplace comedy that tells a resonant story of community, delightfully unpacking how it’s not just about serving in this world but who you’re serving with.  

Indeed, whether or not the show works, props to the show runners for orchestrating a comedy shot in a courtroom without giving itself away to the patsy.  Although one has to wonder about Mr. Gladden's ability to suspend disbelief.  Let's face it, courtroom proceedings are mostly dull.  The showrunners try to spice things up with pranks and pratfalls.  The characters are all more eccentric than they need to be.  Neither the characters nor the pranks are  especially realistic.

Reviewing the show in The Guardian, Charles Bramesco has a great opening paragraph: 

With the head of a hidden-camera prank show, the heart of a workplace sitcom, and the body of a true crime documentary, the boundary-blurring new comedy Jury Duty makes for an odd chimera of genres.

The review also reveals the truly appalling fact that Mr. Gladden was sequestered for some significant portion of the shoot.  And that's where contracts come in.

"Jury Duty" wants to compare itself to "The Office," but it is really more akin to a more polished version of Sacha Baron Cohen's shtick.  We've covered Mr. Cohen's Borat-related antics pretty thoroughly on this site and we also covered Roy Moore's suit against him.  Ultimately, I'm not a fan of the broadly-worded release coupled with pressure tactics that trick people into participating in something that is not at all what it represents itself to be, even if it still is a "documentary-style film."  Roy Moore (or his handlers) should have known better, even before he met up with Mr. Cohen and his unibrow, but I sympathize with the ordinary people whom Mr. Cohen and his production company put in impossible situations.  

So, I'm not sure that it is such a great thing that Mr. Gladden is being such a good sport about the fact that he was essentially held hostage for two weeks in order to provide profit for a production company and uneven entertainment fro however many viewers a comedy series on Freevee can garner.  What's the next step, and how do these production companies protect themselves against suit should the next mark respond with something other than Stockholm Syndrome?  They no doubt have a bulletproof waiver, but courts should not uphold a waiver that one is induced to sign through fraudulent inducement.   

I like a good laugh as much as the next person.  But there are things I value more: contractual consent and dignity.

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.

Weekend Frivolity: Don Draper's Battle with Contracts

In case you are still on the fence about whether or not to attend KCON XVI in two weeks, this might get you to hop on a plane: there will be an event called A Cinematic Perspective on Contracts Law at the New Isis Theater.  Of course, if you are lucky enough to live in Oklahoma City, you can just drive there!

So, as a small taste of what's in store, consider the following.

My wife and I are re-watching Mad Men.  Television was so good, just recently, and now we struggle to find a drama series that does not depart from believability during the first season.

But I digress.  Duck Phillips, who is a central character in the second season and is demoted to important but marginal in season three, has great plans to rein in the power of creative (Don Draper) within the agency.  But what is to prevent creative from engaging in a mass walk out?  "That's why God made non-competes," Duck says smugly.  

And then, during a meeting that was to be his crowning glory, Duck is apprised of a most important fact.  "I don't have a contract," Don says.  All eyes turn to Roger.  "We're close; I didn't think we needed one."  

But in the end, the power of contracts itself, coupled with a veiled threat to reveal Don's deepest secrets, reins Don in.  It's an interesting play from Bert Cooper who, when he first learned of Don's secret backstory opined decisively (if rhetorically) "Who cares?"  At a certain point, it seems, Bert cared, and the scene reveals a great deal about Bert's pragmatism.

 

Guest Post by Otto Stockmeyer on Wood v. Boynton and Murph the Surf

Otto Stockmeyer (left) has taught at the WMU-Cooley Law faculty since 1977. He has also taught as a visiting professor at California Western School of Law and Mercer University Law School, and in the "Down Under" Foreign Study Program.  He has taught Contracts, Criminal Law, Equity/Remedies, Legal Writing, and Research & Writing

A three-time recipient of the Stanley E. Beattie Teaching Award, Professor Stockmeyer was named national Outstanding Professor in 1985 by Delta Theta Phi Law Fraternity. He has also received the Socrates Award from the Hellenic Bar Association and the Student Bar Association's first Barrister Award.

Professor Stockmeyer is the editor and co-author of the book Michigan Law of Damages (1989) and is the author of articles in a wide variety of professional journals and newsletters. He is a past president of Scribes — the American Society of Legal Writers. In 2009, he was named to the ABA Communication Skills Committee. You can find his recent publications on SSRN.

A former president of the Michigan State Bar Foundation, Professor Stockmeyer has also served on the State Bar Board of Commissioners and in the ABA House of Delegates. He is a Life Fellow of the Michigan and American Bar Foundations and was named Professional of the Year by the Michigan Association of the Professions.

The Lansing State Journal recognized Professor Stockmeyer in 1988 as one of mid-Michigan's "88 Greats" for his service to the community and the legal profession. He was profiled in Michigan Lawyers Weekly as one of Michigan's "Leaders in the Law" in 2005.

Professor Stockmeyer's post follows:

I haven’t taught Wood v. Boynton in a decade. But I remain intrigued by its dramatic backstory. So I was excited to learn that MGM+ is streaming a four-part series on the life of Jack Roland Murphy: “Murf the Surf: Jewels, Jesus and Mayhem in the USA.”

Episode 1, “The Heist,” covers Jack’s sensational 1964 theft of world-renown gems. His haul included the “Eagle Diamond” (left), the mystery stone at issue in Wood’s case. Presumably upcoming episodes will detail Jack’s subsequent major life events: a double-murder conviction, self-proclaimed prison conversion, parole, ministry, and recent death.

I prefer the less-dramatic 1992 American Justice documentary “Murph the Surf” (Season 1, Episode 3). It’s narrated by lawyer-commentator Bill Kurtis. A 1975 movie (“Live a Little, Steal a Lot: The True Story of ‘Murph the Surf’”) is also based on his exploits. Whether “Murf” or “Murph,” Jack Murphy led a cinematic life, for sure.

My blog post “The Adventure of the One-Dollar Diamond“ includes links to more information on Wood’s aftermath. I should have included Jack’s slim autobiography “Jewels for the Journey” (1989).

A Unilateral Contract for Ten Years of Free Meals at Balthazar?

By Ibsan73 - James Corden at the TV Baftas 2014, CC BY 2.0

Thanks to two students, I know that James Corden (left) exists and has recently earned a reputation for being abusive to servers.  The latter characteristic (well, both, I suppose, as he could not be obnoxious if he did not exist) got him banned from Balthazar, a popular Soho brasserie that opened in 1997.   My students shared with me this thread from Buzzfeed, a site I think I've known about for decades but have never before visited.  Its format is bewildering and a bit hard to take seriously as journalism.  

If we take Buzzfeed at its words, it appears that Mr. Corden was banned from Balthazar for abusive behavior.  He then apologized to the owner Keith McNally, but McNally apparently kept the ban in place, writing that "if James Corden lets [sic] me host his Late Late Show for 9 months, I’ll immediately rescind his ban from Balthazar. No, of course not."  But Mr. Corden also told the New York Times, "I haven’t done anything wrong, on any level."  Mr. Corden seems a bit baffled by the entire episode.  He has built up a reputation for years as an affable and cordial host.  He is not known to be petulant or high-maintenance.

Mr. McNally could have left things at that, but instead he served up the following mix of puerile insult and a potential offer to enter into a unilateral contract

I wish James Corden would live up to his Almighty initials and come clean. If the supremely talented actor wants to retrieve the respect he had from all his fans (all 4 of them) before this incident, then he should at least admit he did wrong. If he goes one step further and apologizes to the 2 servers he insulted, I’ll let him eat for free at Balthazar for the next 10 years.

Two OCU 1ls, Justine Sandoval, who really did all the work, and Melody Parra, who mostly just provided comic counterpoint to Justine's material, disagreed as to whether an offer had been made.  Based on what was originally presented, it seemed to me that Mr. McNally had made an offer that Mr. Corden could accept by providing the requisite public apology.  After all, Mr. McNally owns the restaurant, and he certainly has the ability to feed Mr. Corden for ten years if he so wishes.  Moreover, Mr. McNally might be playing up this little drama for all its worth in terms of free publicity for his restaurant, so perhaps ten years of enhanced notoriety is something Mr. McNally desires for his restaurant.  If Mr. Corden is indeed as mercurial as Buzzfeed would have us believe, tourists might flock to the restaurant in the hope of seeing the next episode in this food fight.  

On the other hand, this is not the first offer Mr. McNally has made in this exchange, and he quickly clarified that his first offer was a joke.  Does that make us more inclined to view this second offer as a joke, or should we read the absence of a disclaimer in the second offer as signaling sincere intent to enter into legal relations?

Now, the New York Times has weighed in, stressing that Mr. Corden has a reputation to maintain if he wants to enjoy continued success as a "relatable" host.  Mr. Corden has issued an apology.  Despite noting that his order was messed up three times, including in a way that would have triggered his wife's allergies, Mr. Corden uttered the magic words, "I made a sarcastic, rude comment . . . It was an unnecessary comment. . . . It was ungracious."  The Times story does not address the possible unilateral offer.  Mr. Corden likely will give Balthazar a wide berth.

I advise readers to exercise caution when ordering an egg-yolk omelette at Balthazar.

Second Circuit Affirms Dismissal of Roy Moore's Suit against Sacha Baron Cohen

We have covered this case before, but it is a useful reminder of the power of releases.

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, Baron Cohen misrepresented the purposes of the interview.   He pretended to be an Israeli intelligence offer, and he lured Judge Moore into the interview by claiming that the purpose was to present the Judge with an award for his support of Israel.  During the interview, Baron Cohen produced an instrument that he claimed Israel had developed to detect underground tunnels.  Baron Cohen then claimed that it could also detect pedophiles, and, sure enough, it started beeping whenever help up close to Judge Moore's body.  Judge Moore's alleged stalking of women as young as 14 had been an issue in his election campaign.  

The interview did not go well, as you can see below, and the problems go well beyond Baron Cohen's mock unibrow:

In its opinion, the Second Circuit points out the Judge Moore signed a standard consent agreement, which provided in relevant part: 

[Judge Moore] waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or anyone associated with the Program, which are related to the Program or its production, or this agreement, including, but not limited to, claims involving assertions of . . . (h) infliction of emotional distress (whether allegedly intentional or negligent), . . . (m) defamation (such as any allegedly false statements made in the Program), . . . [or] (p) fraud (such as any  alleged deception about the Program or this consent agreement).

Judge Moore crossed out other language in the Release, but the Second Circuit agreed with the District Court that he agreed to enough to bar his claims for defamation, infliction of emotional distress, and fraud.  

Judge Moore claimed that the entire agreement was the product of fraudulent inducement, but any such claim was barred under New York law because, in the Release, Judge Moore also  confirmed that he was not not "relying upon any promises or statements made by anyone about the nature of the Program or the identity, behavior, or qualifications of any other participants, cast members, or other persons involved in the program,” and that he was “signing this agreement with no expectations or understanding concerning the conduct, offensive or otherwise, of anyone involved in this Program.”  The Second Circuit also agreed with the District Court's rejection of Judge Moore's arguments that New York law does not enforce general releases.  This was not a general release.  It specifically released the defendants from the very claims Judge Moore sought to bring.  

Judge Moore's wife's claims of intentional infliction of emotional distress were barred under the First Amendment.  Judge Moore is a public figure and, given his candidacy for public office, the subject matter of the segment was clearly of public concern.  The court found that "no reasonable person" could have taken it seriously.  Thus, while the representation that the "pedophile detector" was a reliable device was clearly false, in context, nobody would have thought otherwise.  

We may have to revisit this doctrine in a world in which many people believe that "you can't trust the media."  In our current environment, Sacha Baron Cohen is at least as reliable a source as George Stephanopoulos.  I once was engaged in a political debate with a former student, and he pointed me to an article from the Babylon Bee.  When I informed him his source was satire, and he might was well be citing The Onion, he responded, "What difference does that make?"  At that point, I knew that I had lost.  And that all was lost.

A Dose of Reality about Reality Television

Every time I am in the gym, at least one of the television monitors is showing a show about home remodeling.  This is a disease.  I believe a steady dose of Stoic, or even Epicurean, philosophy might be a cure.  Or perhaps some Eastern philosophy.  Wanting material things is not the way to happiness.  These television shows encourage us to want things that we likely will not get or to want things better than what we currently have.  I prefer the life of the Cynic.  Better to be satisfied with some water and a pot of lentils.  This blog is my pot of lentils, but if I were to be stripped of it, I should make my way through life as an ordinary contracts prof.

But I could be wrong about much of this (add Skepticism to the mix).  Still, as recounted in The New York Times, there are worse things than unfulfilled fantasies of white oak cabinetry, soapstone counters, a black slate backsplash, and a glass-enclosed shower, or a renovation that makes it possible to flip a house and make some money.  Increasingly, participants in home renovation shows are suing production companies, alleging "fraud, misrepresentation and faulty workmanship," which leave homeowners with properties "riddled with code violations as well as safety and health hazards."  We will never know the true extent of these problems, because all of these transactions are covered by sweeping non-disclosure agreements (NDAs).  If you think NDAs are a good thing, I recommend watching Hulu's The Dropout.  

On television, we see a couple meeting with some construction experts.  They discuss various options, and the couple's excitement increases as they begin to imagine their home re-made.  Then we see early scenes of demolition, usually played for comic effect, as the homeowners struggle to wield a sledgehammer, but sometimes played for dramatic effect, as when the homeowners discover mold behind some boards.  Next comes the transformation, with the homeowners conveniently out of the way.  Finally, there is the reveal, at which the homeowners flip cartwheels or engage in otherwise conspicuous displays of joy and gratitude.  I mean, it's the gym, so the sound is off, but my impression is that these shows are about as formulaic as Dora the Explorer and Blues Clues.  

In reality, the narrative is similarly fixed.  The homeowners now claim that they were dissatisfied with the remodel, but they were contractually obligated to go through with the shoot.  At this point, of course, the production company has them over the barrel.  They were awarded a discount on labor and materials and had the advice of experts, but those baubles can be removed at the first sign of contractual breach.  Then comes the lawsuit brought by the homeowners, alleging fraud and breach of contract, followed by the predictable counter-suit for breach of the NDA.  The homeowners now claim that they were given very little time to review the contract and that its terms contradict things that they were told.

According to the Times, the scope of the NDAs can be extremely broad:

Nearly all contestants are required, when signing onto a program, to agree to a strict waiver that prevents them from speaking to the press or posting on social media, about not just the show itself, but also, according to one waiver reviewed by The New York Times, “any nonpublic information or trade secrets obtained or learned in connection with the program.”

Disputes between contractors and homeowners are not rare.  In one case that is a focus of the Times story, Nevada has a process for resolving them short of litigation.  The reality television shows weight the scales in favor of the contractors, however, because pursuing litigation now comes with the added threat of a countersuit for violation of the NDA.  And in some cases, the homeowners face claims not only for violation of the NDA, but for libel, slander, and product disparagement.