ContractsProf Blog

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.  

The Dropout and Blawgs

Photo by Glenn Francis (Toglenn, CC BY-SA 4.0, via Wikimedia Commons)

Hulu's The Dropout tells an amazing story.  I do not know if it is fair to the main characters or an accurate representation of how easy it is to scam angel investors and the Katy Perry and Angry Birds addicted aging executives who run corporate dinosaurs like Walgreens.  It's also hard to imagine getting top science and technology graduates from top programs to sign non-disclosure agreement after non-disclosure agreement and to work under 24-hour surveillance and conditions where they are prohibited from speaking to colleagues from other parts of the enterprise. But perhaps I am naive about work conditions in start-ups, or perhaps young graduates are naive about contracts.  Both are possible.

But I do know that it features stunning performances by great actors, including Amanda Seyfried (right), who does for Elizabeth Holmes what Johnny Depp did for Willy Wonka, and William H. Macy.  How many iconic roles can one actor create?  If I were Richard Fuisz, I don't know if being played by William H. Macy (left) would take the sting out of being portrayed as an obsessive, jealous, greedy, glorified patent troll.  

Which brings me to the justification for this post.  In episode 6 of The Dropout, about three minutes in, Fuisz is making his first contact with Wall Street Journal reporter John Kerryrou (played wonderfully by Ebon Moss-Bachrach -- every scene with him and LisaGay Hamilton as his editor Judith Baker is priceless).  Fuisz says that he read something by Adam Clapper who writes something called the Pathology Blawg and then he furrows his brown and mutters "I don't know why he spells it like that."  Well we do!

Contracts Fall-Out From the War: The Case of RT America

As we noted last week, many novel contracts issues will arise in connection with the Russian invasion of Ukraine.  Over the weekend, the New York Times reported on the demise of RT-America.  From the perspective of this blog, the Times buried the lede.  Only in the final section of the article does the Times make clear that it was not the U.S. war machine or rivals within the mainstream media that did in RT America.  It was contracts:

DirecTV and Dish Network had taken RT America off their distribution networks. Ora TV announced on March 1 that it would suspend production of content for RT America. Companies were distancing themselves from the Russian government-backed media company in protest of the invasion of Ukraine.

The Times story focused on how working at RT America felt like working at any other U.S. cable news station.  In fact, some of RT America's talent had come from other networks.  For example, Rick Sanchez, fired from CNN in 2010 after an anti-Semitic outburst for which he apologized, landed at RT America.  America is a country that believes in second chances, and so is RT America.   

But Sanchez  does not seem to have been representative of RT America's work force as a whole.  The station was a great place for people new to the industry to launch their careers.  The Times article gives the impression that the station was pretty hands-off when it came to editorial content, with the exception of Russia's intervention in Ukraine in 2014.  In that context, the station required that Russian troops be referred to a peacekeepers and the term "invasion' was not permitted.  But for the most part, the station did not have to censor its employees because it attracted journalists (or whatever) who wanted to do reporting critical of the United States.  A lot of people with critical angles on U.S. policy and culture landed at RT.  They could further their own political agendas without any encouragement from foreign handlers because their critical perspectives meshed nicely with the message those foreign handlers wanted to promote.  And at least some RT America employees were also critical of the Russian invasion of Ukraine.  

But none of that has much to do with contracts.

Barrons provides a more direct account of what happened.  Two weeks ago, DirecTV announced that it was "accelerating this year’s contract expiration timeline and will no longer offer [RT's] programming effective immediately.” RT America's contract with DirecTV was due to expire this summer.   The article does not reference contractual provisions permitting such an acceleration.  Other media companies and Internet companies: Google, Facebook, YouTube, Instagram, Roku, and Microsoft also removed RT from their platforms.  Dish and Sling TV followed suit a few days later, as reported here. 

I wonder whether RT America had to sign up for these platforms through a contract of adhesion similar to those that ordinary consumers confront.  Were RT America's agreements with all of these platforms subject to the platform's unilateral right to change terms or terminate service in the platforms' sole discretion?  If not, World War III might have a new front: the contracts battle.  Look to this space for unique coverage of that theater of war.

Weekend Frivolity: Do Haircuts Come with Warranties?

There is so much wisdom in this scene!  Fleabag seems to have the upper hand with her "Hair is everything" soliloquy.  But then Antony's last line carries the day, leaving Fleabag and Claire with a shamed "Sorry, Antony," and a plaintive, confirmatory, "See you next week?"

If you haven't watched this show and you don't mind explicit stuff, foul language, uncomfortable silences, more explicit stuff, or smoking, it is a work of genius.  Very conceptual and yet also engaging, with absolutely brilliant performances, especially by Phoebe Waller Bridge, but Olivia Coleman gives her a run for her money.  Phoebe Waller Bridge performs Meryl Streep-level acting just using her eyes, editing, and camera angles.

The New Season of Ozark Has Dropped: Contracts Issues Abound!

In these days of pandemic-induced isolation, when one cannot go safely to the cinema or theater, it is nice to be able to follow characters who live as though there never were a pandemic and whose lives are somehow nevertheless a million times worse than ours.  Perhaps this is the hidden allure of Netflix's Ozark.  Perhaps it is the fine performances and the moral dilemmas that the characters have to navigate.

Or maybe it's just all the contractual issues that arise (if you can set aside the fact that all of the agreements would be unenforceable under the doctrine of illegality.

SPOILER ALERT: PLOTS (AND PLOTS) REVEALED AFTER THE BREAK!

Continue reading

Thanksgiving Frivolity: The Arthur Murray Cases and Malcolm in the Middle

This Thanksgiving, I am grateful for students who provide me blog fodder, in addition to a sense of professional purpose.

Somehow I was unaware that Malcolm in the Middle had an episode, Poker, back in 2002 that plays on the theme of the Arthur Murray Dance Studio cases previously discussed here.

Those cases generally involve an elderly woman (sometimes an elderly man) who pays an absurd amount of dance lessons.  Arthur Murray had a strategy to entice such investments: instructors would flatter and seduce until the marks came to believe themselves uniquely gifted.  They would buy scores of lessons, followed by packages, followed by lifetime memberships and, in some cases, multiple lifetime memberships.  It was all a con. However, as Deborah Threedy has argued, the "victims" of the con might have complicit in the scheme.  They enjoyed themselves, rode the tiger, and then sued once the ride had lost its appeal.

Mingle Media TV, CC BY-SA 2.0, via Wikimedia Commons

In the Malcolm in the Middle episode, far too little space is given, IMHO, to the plot line of the Lois character (the mother), played by the wonderful Jane Kaczmarek (left).  The incomparable Bryan Cranston (right), who plays her husband Hal, has bought her dance lessons as a birthday present.  But he is invited to a poker game and has to back out.  Lois goes alone, and the dance instructor pulls the usual schtick with her, complimenting her on her talent, her grace, her dancer's ankles.  It's all very convincing, because we see it all as Lois experiences it.  She performs a charming little dance number with her instructor that we get to see both in her imagination and from the more objective perspective of her son's video recorder.  The veil lifted, Lois abandons (for now) her dreams of advanced dance lessons and seems content to romp around the kitchen (gracefully or clumsily) with Hal.

Meanwhile, her oldest son is showing that Deborah Threedy was right: the women at the dance studios willingly pay to dance with Lois's oldest son, who happily accepts their payments and observes that a lot of people save up money all their lives and then end up with nothing to spend it on.  So why not spend it on dance?

H/T to my former (and future?) student Francisco Herrera Chinchilla.

Squid Game and "Opportunity"

Last month, Nancy Kim introduced me to Squid Game with this post.  I read the post and thought, "I'm glad Nancy watched that so I don't have to.  Ultra-violent sadistic television show that portrays our current economy as a savage murderous game engineered to extinguish the hopes and dreams of ordinary folks?  Who needs that?  I have my life."  Meanwhile, unbeknownst to me, my bloodthirsty wife was reading up on the series and getting the popcorn ready.  I'll do anything to put off for a time my promise to my students to listen to Taylor Swift's music, so we watched the first episode.  Unlike Ms. Swift, the show is holding my interest, and then some.  It's a really smart, well-conceived series.  I could use a little less violence and sadism, and I could have passed on the strobe effects in episode 3 (or was it  4?), but maybe that's just me.

In any case, right at the beginning of Episode 2, "Hell," there's an interesting contracts moment.  After the first game, the players are begging to be allowed to leave.  The guards/men in pink tell the players that they have been given an opportunity.  The situation presents a variation of a classic riddle of the law of coercion.  The coercing party claims to be making an offer: e.g., I'm offering you, desperate, insolvent business, an opportunity to get paid off early.  In exchange, all I ask is that you accept my payment of 35% of what you claim I owe you as payment in full.  Or, in a situation that's a little closer to the Squid Game situation, "Hey, shipwreck, I'm offering to save you; all I ask in return is that you surrender your cargo to me."

The law does not turn on the formal aspects of the "offer."  The law of coercion does not turn on whether the offer is posed as an opportunity or a threat.  I offer my students the opportunity to hear me sing.  They know a threat when they hear one.  But in the context of economic coercion, it can be very difficult to differentiate opportunities from threats.

Without giving away too much of the plot, I would venture that the problem with the agreement at the heart of Squid Game is not so much coercion as illegality.

Contracts Issues in Shameless, Season 11

Shameless (American version) has always been a very transactional series.  The Gallaghers, and their neighbors Kevin and Veronica, are hustlers.  They are always out to make a buck, and that often involves deals.  Season 11 is no different, but it happens in the world of the new normal, with the added ingredients of the pandemic and legalized marijuana.

First, congratulations to Shameless for presenting the world as it is today.  All of the other series I have been following, although set in the present, act as though the pandemic never happened.  Shameless thematizes masks, social distancing, lockdowns, supply-chain problems, and the political attitudes surrounding them.  Having all of the characters wears masks, at least part of the time, must have presented novel challenges to the sound people.  To the credit of the series' gritty verisimilitude, the actors, speaking through masks, sounded muffled, but they could still be understood, just like in real life.  

Just a taste of some of the contracts issues in Season 11 (some spoilers ahead):

• With their bar shut down during COVID, Kevin and Veronica wisely diversify, getting into the marijuana business.  They run into supply-chain problems, and hire Frank, a highly skilled procurement specialist.  There are some quick negotiations, and the parties settle on splitting the profits three ways.  After Frank also takes over as chief edibles confectioner, he demands a 60/40 cut in his favor.  Kevin and Veronica acquiesce as, by his impeccable logic, they are now merely distributors; he is doing all of the work.  That cut jumps to 70/30 in his favor when he catches them trying to bypass him by going directly to Frank's favored source.  They are not very skilled in negotiation.  How is Frank to distribute without their operation?  I don't remember Walter White and Jesse telling Gustavo Fring that they were entitled to 70% because of he was just the distributor.  Unfortunately, the permutations of this partnership are not further explored, as the supply-chain bottleneck clears up, and Kev and V can return to their Frank-free operations.
• However, Kev and V also need to hire some muscle.  Kev, in the early stages of his success, celebrates a bit too ostentatiously with a tricked-out truck and new clothes that he considers stylish.  South-siders recognize the vulnerability of the nouveau riche and quickly relieve him of all of his baubles, including his money roll.  Enter Micky Milkovich and Ian Gallagher, decked out in camo and battle gear.  They hijack an ambulance which, with the help of Ian's handy sister, Debbie, they turn into an armored vehicle.  At one point, they seemed to have entered into a side deal for $1000/day to provide the same transport services for a much more sophisticated enterprise, but that plot point was not pursued for some reason.
• Unsurprisingly, Frank does not really understand how restitution works.  Frank was going about his usual business, completely innocently, when somebody punched him the face, knocking him out, and left his body by a dumpster.  A good Samaritan discovered him and brought him to the emergency room.  We learn all this from the doctor who is stitching up Frank's face while testing him for brain injury.  He responds by inquiring whether the good Samaritan is going to pay for his transport to the ER via ambulance and for the treatment to which he never agreed.  

He must have watched only the first fifteen minutes of The Incredibles.

Carole Baskin Sues Netflix for Breach of Contract. Thanks, Carole!

I'll admit it.  I watched Tiger King.  My students at the time insisted that I do so.  My friends warned me away, because I don't like watching people being cruel to animals.  People told me that you either love it or hate it.  I did neither.  I get the over-the-topness of the series.  That part was fun, but I resented the way the series encouraged identification with its main character, Joe Exotic.  He's a complicated human.  I don't know if anybody merits the treatment they get from our criminal justice system.  But he should not be allowed anywhere near large cats.  I was also dimly aware that fans of the show had adopted Joe Exotic's perspective and treated Carole Baskin as a villain, accepting the false equivalence Joe Exotic tried to establish between his operation, which exploited animals for profit and bred them irresponsibly, and Carole Baskin's animal rescue preserve. 

Image by Zvi Roger, CC BY 3.0, via Wikimedia Commons

Now Tiger King II is about to come out.  Carole Baskin wants no part of it, and she is suing to enjoin use of footage of her from the first shoot in the second series.  She claims breach of contract The Complaint is here.

The Complaint is basically a vehicle for Baskin to tell her side of the story.  Much of it is taken up with the achievements and awards and recognition of her Big Cat Rescue organization.  Joe Exotic is introduced as follows. 

 Joe Exotic . . ., the operator of a private roadside zoo and prolific breeder of big cats and purveyor of cub petting services [sic] sought to discredit and silence the Baskins' [sic] and their advocacy through years of constant and persistent intimidating and libelous social media attacks and physically during one incident at Big Cat Rescue.

The Complaint explains how Joe Exotic retaliated against Ms. Baskin, misappropriating her intellectual property and hiring a hitman to execute her.  The former led to his bankruptcy; the latter led to his prosecution and conviction.  

 

According to the Complaint, Ms. Baskin participated in Tiger King without knowledge of what the show was really about.  She was under the impression that the aim of the documentary was to expose the exploitation and cruelty to animals involved in big cat breeding, a subject-matter aligned with her organization's mission.  Prior to the release of The Tiger King, Ms. Baskin alleges, the producers showed her three videos that were supposed to represent the nature of the project.  These videos left Ms. Baskin with the impression that the producers were engaged in an animal-welfare documentary which would portray her as a heroine.  

The heart of Ms. Baskin's current suit against the producers is her claim that the releases she signed allowing use of footage filmed with her was only with respect to a single "documentary motion picture."  She did not agree to participate in a second series, and when approached by the producers, her response was "No. And lose my number."  That's gold, baby!  If only that were in the new series!  Sorry.  

If you watch the trailer for the new series, linked to in ¶ 36 of the Complaint, prepare to be overwhelmed with the powerful stench of desperation.  Joe Exotic is in prison.  His zoo is shut down.  The film makers chase after similarly despicably situated persons, i.e., other polyamorous, gun-toting, purported animal-lovers, committed to money-making and lawless libertarianism.  Prepare also for unsubstantiated allegations, artfully edited and cross-cut to look as plausible as the rampant criminality and exploitation that was the very stuff of Joe Exotic's business.  The desperation comes from the producers, who, as the breathless editing of the trailer makes clear, no longer have a story to tell but want to mine this vein until it is completely tapped out.  It also comes from Netflix, which has recently made clear that it is committed to the view that the only thing worse than being talked about is not being talked about.

It is only because I am not a participant in cancel culture that I will not cancel my Netflix subscription in protest of their decision to release Tiger King II.  Also, the new season of Shameless just became available, and the forthcoming season of Ozark is one of the few things I have to look forward to in this life.

Weekend Frivolity: The Is-a-Taco-a-Sandwich Debate!

The following clip is full of things I hate:

1. Taco Bell
2. Formal debates
3. Popular culture parodying academic discourse
4. The debate over whether a taco (or a wrap or a reuben or an oreo cookie or an accordion or whatever) is a sandwich
5. TV commercials (unless they are GEICO commercials)

But when you combine all of these things, it somehow creates the ideal clip for frivolity!

By the way, the answer is that a sandwich has to be food, so sorry Taco Bell!

H/T Texas A&M School of Law Professor Wayne Barnes

Reality Television Star Wins Motion to Dismiss, Fraudulent Inducement, Fraud and RICO Claims

Nope.  Not that reality television star.

In Goureau v. Lemonis, Plaintiffs Nicolas Goureau and Stephanie Menkin contend that their business’s participation in CNBC’s TV show The Profit caused their company to go into crippling debt. The Profit is an American documentary-style reality television show broadcast on CNBC. In each episode, the show’s host, Marcus Lemonis (right), typically offers a capital investment and his expertise to an already-struggling small businesses in exchange for an ownership stake in the company. He revamps the company in hopes of making a profit for the business and himself.

Image by Samdpark, CC BY-SA 4.0 , via Wikimedia Commons

Plaintiffs ran an upscale women’s clothing brand through their Gooberry Corporation. It was successful overall and had several stores around the country. Plaintiffs sought outside investors and in early 2014, Plaintiffs interviewed and were selected to appear on The Profit. During the show, Plaintiffs and Mr. Lemonis came to the agreement that Mr. Lemonis would buy 30% of Gooberry for $800,000.  However, Mr. Lemonis allegedly began significant renovations of the Gooberry stores that cost upwards of $2,000,000 and told Plaintiffs they would be stuck with the bill if they decided to back out of the deal. Many of the experts appointed to assist in the changes to Gooberry were Mr. Lemonis’s employees from other companies, who charged Plaintiffs consulting fees. Knowing all this, after filming in 2014, the parties still entered a final operative Stock Purchase Agreement, which gave Lemonis 32 of 100 shares of Gooberry for $800,000, and a Shareholder Agreement, which placed Mr. Lemonis on a board of directors.

The relationship further soured when Loomis began operating the company under the Lemonis name, bought merchandise that made costs higher and work more difficult, and subsequently made it harder to compete with other boutiques and department stores. Mr. Lemonis tried to expand Plaintiffs' brand by investing in a new business, ML Fashion, LLC, that would be the umbrella entity for the parties’ various business ventures. ML Fashion was funded by credit agreements that it had with Defendant ML, LLC. Plaintiffs contend that whenever ML Fashion lent money to Gooberry, those funds were coming from Lemonis through ML, LLC, and that this action was increasing the debt position of both ML Fashion and Gooberry.

In short, Plaintiffs allege that Mr. Loomis engaged in a series of corporate restructurings that enabled him to take control of their business and deprive them of their controlling stake.  He did so in stages so that their stakes in the business shrunk as their business’s indebtedness to entities that he controlled grew.  At the same time, he mismanaged their business until their business’s indebtedness to the entities that Mr. Loomis controlled exceeded their equity in their own business.  One is left wondering both how they allowed themselves to be so effectively snookered and how exactly Mr. Loomis benefits from the transactions as described. 

Maybe there’s a lesson in this for all of us.  Reality TV stars may not be what they seem to be.

Plaintiffs filed suit and asserted thirteen claims. including three fraud-based claims against Defendants, Mr. Lemonis and his business entities, including Machete, the production company responsible for the Profit: 1) fraudulent inducement ; 2) fraud; and 3) mail and wire fraud under RICO. On September 2, the District Court for the Southern District of New York granted Defendants’ motion to dismiss those three claims, the only claims relevant to the court’s jurisdiction over the case. With those claims out of the case, Plaintiffs would have to either amend their complaint to address its deficiencies or refile a suit on their remaining claims in state court.

The court held that Plaintiffs did not plead their fraudulent inducement or fraud claims with the requisite specificity.  Without allegations sufficient to support their predicate claims, Plaintifs also could not make out a RICO claim.  The Complaint, taken as a whole, alleges that the real-world impact of the various investment schemes depicted on The Profit does not correspond to how that impact as portrayed on the reality television series.  The court found these representations on which Plaintiffs allegedly relied to be either inactionable puffery or forward-looking projections. 

Part of the problem is that the Defendants are well-advised.  They pepper their statements and documents with language that puts people in Plaintiffs’ position on real or constructive notice that they are taking a risk and that there are no guarantees that the venture will be profitable.  The other part of the problem is that Plaintiffs forged ahead with the deal, when they could have backed out, even after Mr. Loomis revealed that the partnership would require their business to take on an additional $2 million in debt.  They also seem to have willingly entered into the agreements that resulted in the corporate restructurings which they now characterize as fraudulent.

Because federal jurisdiction was predicated on Plaintiffs’ RICO claim—and the court found Plaintiffs’ complaint insufficient—the court declined to rule on the remaining claims. Plaintiffs have until October 05, 2021, to notify the court if they intend to amend their complaint to address its deficiencies.

H/T to Alyssa Cross and the ever-reliable @NY_Contracts

Early Frivolity: It's Star Trek Day!

I'll drink to that!

 

Contracts and the Netflix Series, "The Chair"

Peabody Awards, CC BY-SA 3.0, via Wikimedia Commons

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.

***SPOILER ALERT****

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.

Continue reading

Sid DeLong on the Scarlett Johansson Suit Against Disney/Marvel

INDUCING BREACH OF CONTRACT: A STUDY IN SCARLETT

Sidney W. DeLong

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.

Roy Moore's Claims Against Sacha Baron Cohen Dismissed

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.

Contracts Issues in Shtisel, Season 3, Part I

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.