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Wednesday, December 3, 2014

Hawaiian Supreme Court Strikes Down Arbitration Provision as Fundamentally Unfair

HawaiiSupremeCourtLogoPlaintiffs in Nashimua v. Gentry Homes, Ltd.are a class of persons who believe that the defendant corporation built their homes without adequate high wind protection.  Gentry Homes, Ltd. (Gentry) moved to compel arbitration.  The arbitration provision at issue provided in relevant part:

The arbitration shall be conducted by Construction Arbitration Services, Inc., or such other reputable arbitration service that PWC shall select, at its sole discretion, at the time the request for arbitration is submitted.

By the time the case was filed, Construction Arbitration Services was no longer available, which left the choice of arbiter in Gentry's sole discreation.  The issue before Hawaii's Supreme Court was whether plaintiffs could claim that the provision was fundamentally unfair and therefore unenforceable or if they had to await the selection of an arbiter and then show actual bias.  

Following the Sixth Circuit's approach, he Court held that plaintiffs need not wait: "'Actual bias' need not be proven in a pre-arbitration challenge to an arbitrator-selection provision, where . . . the mere fact of one party’s 'exclusive control over the pool of potential arbitrators from which the arbitrator is selected' renders the arbitrator-selection process fundamentally unfair."  Applying the fundamental unfairness standard to the provision at issue, the Court found it fundamentally unfair.

The Circuit Court had orderd the parties to confer and agree upon an arbitral forum.  If they could not do so, the Circuit Court would select an appropriate arbitral forum.  The Supreme Court deemded this solution appropriate.  

December 3, 2014 in Recent Cases | Permalink | TrackBack (0)

Tuesday, December 2, 2014

Cato Institute Challenges Federal Circuit Opinion

Fed CirIlya Shapiro at the Cato Institute posted last week about Century Exploration v. United Statesdecided by the Federal Circuit on March 14, 2014.  Century Exploration (Century) acquired a lease for an oil field in the Gulf of Mexico.  It paid $23 million up front, plus $50,000 per year of the lease.  Century sought to protect itself against possible changes in applicable laws governing such leases through a contractual provision that no changes in law, other than reulgations created pursuant to the Outer Continental Shelf Lands Act (OCSLA), would affect Century's rights under the lease.  

In the wake of the Deepwater Horizon fire, Congress passed the Oil Pollution Act (OPA), which required oil exploration companies to develop worst case scenarios and certify that they have reserves adequate to address such worst cases.  Using a methodology required by the Interior Department, Century would have to have $1.8 billion on hand to deal with such a worst case.  When Century could not prove that it had such funds, the government sought to cancel the lease.  Century brought suit, relying on the contractual provision that protected it against regulatory changes, such as those promulgated pursuant to the OPA.  Ilya Shapiro questions whether the directives from the Interior Department even qualify as government regulations, as they were sent via e-mail by "a civil servant in the Interior Department."  The government filed for summary judgment, and both the Court of Federal Claims and the Federal Circuit sided with the government.

The Federal Circuit acknowledged that this case involves a lease provision nearly identical to that at issue in Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 530 U.S. 604 (2000).   However, in this case, the Federal Circuit found that the new regulations were actually promulgated pursuant to the OCSLA rather than the OPA.  As such, they were within the carve-out to the contractual provision protecting Century against regulatory changes.  In short, the Federal Circuit found this case distinguishable from Mobil Oil because of the nature of the regulations at issue.

To see in detail why the Cato Institute disgrees with that holding, you can have a look at its amicus brief.  Ilya Shapiro provides the following summary:

First, it is vital to the smooth operation of the government and the health of the economy that private entities are confident that the government will honor its contractual promises. Federal spending on contracts has totaled roughly $500 billion annually since 2008—or 15% of the federal budget. If businesses and individuals have no reason to believe that the government will live up to its business obligations, they’ll have no reason to work with it. The Federal Circuit’s decision, which condoned the government’s flagrant breach of its contract with Century, sets a bad example and must be reversed.

Second, and quite simply, words have meaning—in the Constitution, in statutes, and yes, in contracts. A “regulation” is a formal rule adopted and issued by an authorized agency, in accordance with strict procedural protocols. It’s not a casual email. Giving informal government policy documents created by civil servants the full weight of the law is unconstitutional, undemocratic, and unsustainable.

December 2, 2014 in Government Contracting, Recent Cases | Permalink | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 329 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 163 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 140 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
4 130 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
5 123 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
6 113 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
7 103 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
8 98 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
9 96 The Justice of Private Law 
Hanoch Dagan and Avihay Dorfman 
Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law 
10 77 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 130 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
2 77 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
3 77 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 
4 67 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
5 66 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
6 58 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
7 54 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 
8 53 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
9 51 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
10 48 Empirical Analysis of Legal Theory 
Geoffrey P. Miller 
New York University School of Law 

 

December 2, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, December 1, 2014

Weekly News Roundup

Ghana-flag-2We start this week with international news:  According to a report from Ghanaweb, Ghana is suing Nigeria for breach of a contract to supply natural gas.  Under the West African Pipeline Project, Nigeria is to supply Ghana, Togo and Benin with gas, but it has supplied only about 40% of the gas contracted for.  While the report is a bit vague, it seems that the agreement at issue has a $20 million liquidated damages clause, which Ghana thinks is far too low and does not provide an adequate incentive for Nigeria to perform.  

In music industry news, the Daily Record informs us that songwriter Wendy Starland won a $7.3 million jury verdict against producer Rob Fusari, who had entered into a settlement with Lady Gaga in 2010.  Fusari had claimed entitlement to $30.5 million for helping to launch Lady Gaga's career and contributing to her break-out hit album (are they still called that?).  We reported about that suit here.  Lady Gaga testified at the trial, at which Starland claimed that she and Fusari had a deal for splitting proceeds from Lady Gaga's career. 

And yet another non-disparagement case: this one in the context of realtors.  San Diego's ABC's affiliate, 10news.com reports that a realtor sought to arbitrate its breach of contract claim against a homeowner who posted a negative review on Yelp.  The homeowner claims that the realtor demanded $8000 and the removal of the Yelp review in order to settle the claim.  As Nancy Kim has pointed out, California has a law that will go into effect Jan. 1, 2015, such non-disparagement clauses will be unenforceable.  There can also be fines of up to $10,000 for contractual provisions that violate the new law.  

December 1, 2014 in Celebrity Contracts, In the News, Music | Permalink | Comments (0) | TrackBack (0)

Eleventh Circuit Says Pond Scum Dispute Must Go to Arbitration

11th CircuitCyanotech Corporation and Valensa International are competitors.  They nonetheless entered into two agreements under which Cyanotech was to sell algae to Valensa so that it could extract from said algae an antioxidant compound.  Both agreements were governed by arbitration provisions, except for carve-outs for litigation relating to breaches of confidentiality.  Valensa sued Cyanotech for tortious interference and breach of a confidentiality agreement.  The suit relates to the two parties' dealings with a third company, Mercola.  In short, Valensa was selling antioxidant to Mercola, and when Cyanotech found out, it offered to provide its antioxidant at a lower price.  Finding that the dispute fell within the carve-out, the District Court denied Cyantotech's motion to compel arbitration.

In U.S. Neutraceuticals, LLC v. Cyanotech Corp., the Eleventh Circuit reversed. Citing its decision in Terminix Int’l Co. v. Palmer Ranch Ltd. P’ship, 432 F.3d 1332 (11th Cir. 2005), the Eleventh Circuit held that the question of arbitrability must be determined by the arbiter.  The District Court determined that the case was not arbitrable under the second of the two contracts between the parties.  In so doing, said the Eleventh Circuit, the District Court decided an issue (which contract governs or do both govern) that only the arbiter could decide.

Judge Wilson dissented, agreeing with the District Court that the later agreement clearly governed because the later agreement is the one cited to in the complaint.  Although there is a general presumption in favor of arbitration, that presumption does not apply to the qeustion of which agreement governs.  Judge Wilson then carefully reviewed the terms of the later agreement and found that the District Court had correctly denied the motion to compel arbitration.

December 1, 2014 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, November 28, 2014

On the Passing of Jean Braucher

Jean Braucher was a giant in our field, and she has been a great friend to this blog, helping us launch our virtual symposium on Stewart Macaulay and contributing to our virtual symposium on Margaret Jane Radin's book, Boilerplate.

Bill Whitford posted the notice provided below on the Contracts Listserv, and he has given us permission to share it here.  We will also share any comments that people might want to post with Bill, who will then pass them along to Jean's family.

BraucherIt is my very sad obligation to inform the contracts community of the death of Professor Jean Braucher of the Arizona College of Law. Jean passed away on Tuesday, Nov. 25th. The cause of death was uterine cancer. Jean was 64 at her death. She was the daughter of the late Professor and Justice Robert Braucher, of the draftpersons of the Restatement, Second, of Contracts. She is survived by her husband and two children, among others.

Jean's academic career was outstanding. She was a prodigious scholar, writing most about contracts, consumer protection and consumer bankruptcy. She did original empirical work, many times, among other things. She was also an activist in many different venues. As a member of the American Law Institute, she took great interest in revisions of the Uniform Commercial Code and the Restatements, particularly as they impact consumer and software contracts. Here is a link to her CV:
http://www.law.arizona.edu/faculty/facultypubs/documents/cv/33/33.pdf.

Jean was a close friend, a fellow co-editor of the Macaulay et al. casebook (Contracts: Law in Action), my co-author on several other publications, and an intellectual collaborator and colleague for many years. I sometimes felt that we shared a brain, since we so often viewed issues similarly, but that was obviously not the case since over the years I learned a great deal from her work. And she also made many suggestions that helped me improve my own work. No words can adequately express my sense of personal loss at this untimely death.

Update:  Bob Lawless has posted In Memoriam on Credit Slips, and quite a few people have added their own words of remembrance for Jean there.

November 28, 2014 in Contract Profs | Permalink | Comments (4) | TrackBack (0)

Thursday, November 27, 2014

Thanksgiving Feast: Meredith Miller Top Ten List

MeredithThis is a rather unconventional list.  I have just gone back into our archives and picked out one my favorite Meredith posts from each of the ten years since she started blogging here.  It's amazing how well I remember each of these posts!

Meredith Vintage 2014: John Oliver and Sarah Silverman Tackle Payday Loans

Meredith Vintage 2013: Breaking: Bieber Requires NDA of Guests in His Home

Meredith Vintage 2012: Markets on the Mekong

Meredith Vintage 2011: Don't Buy This: 'Tis the Cyber Season of Reverse Psychology

Meredith Vintage 2010: A Hairy Breach of Contract Suit against Paris Hilton 

Meredith Vintage 2009: Can Mad Men Bring Sexy Back to Contracts?

Meredeith Vintage 2008: Brown on Halloween, Promises & Signed Documents

Meredith Vintage 2007: Law Prof Takes on Cell Phone Company

Meredith Vintage 2006: British Court Must Watch Jerry Springer Show

Meredith Vintage 2005: The Commonality of Computers, French Fries and Arbitration

It was hard to make these choices.  Lots of competition in the Meredith archives!

 

November 27, 2014 in About this Blog, Celebrity Contracts, Television, Travel | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 26, 2014

New in Print (including a new book!)

Steven W. Feldman, Mutual Assent, Normative Degradation, and Mass Market Standard Form Contracts (a two-part critique of Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law (part I), 62 Clev. St. L. Rev. 373 (2014).


Alan Schwartz & Joel Watson. Conceptualizing Contractual Interpretation. 42 J. Legal Stud. 1 (2013).

And, for our readers only!

 Hart Publishing is delighted to offer you 20% discount on this title

 English and European Perspectives on Contract and Commercial Law

Essays in Honour of Hugh Beale

Edited by Louise Gullifer and Stefan Vogenauer

Beale BookThe purpose of this book is to honour the influential and wide-ranging work of Professor Hugh Beale, who retires from full time teaching at Warwick University this year. It contains essays by twenty-five very distinguished authors, each of whom has worked with Professor Beale as a co-author, as a teaching colleague, during his time as Law Commissioner of England and Wales, or as part of the study groups working in Europe on contract and commercial law. The essays reflect different aspects of Professor Beale's interests. Some concentrate on English contract law, either from a historical or a current perspective, while others are focused on aspects of European contract law.  There are four essays looking at current issues relating to security and financing, and, as befits a former Law Commissioner, three essays on law reform. The essays in the final section discuss trends in transnational and European commercial law. This book brings together the reflections of eminent writers from all over Europe on important issues facing contract and commercial law, and will be of interest to all scholars and practitioners working in these areas.

Louise Gullifer is Professor of Commercial Law at the University of Oxford, and is Fellow and Tutor in Law at Harris Manchester College, Oxford. She is an associate member of 3 Verulam Buildings and a Bencher of Gray's Inn.

Stefan Vogenauer is Linklaters Professor of Comparative Law at the University of Oxford, Director of the Oxford Institute of European and Comparative Law, and a Fellow of Brasenose College, Oxford.

October 2014     9781849465496     424pp     Hardback     RSP: £65

Discount Price: £52  

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘CONTRACTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849465496

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘CONTRACTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465496

November 26, 2014 in Books, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, November 25, 2014

More on Non-Disparagement Clauses

According to this story in the Mirror, a couple was charged an extra £100 for posting a review on TripAdvisor describing the Broadway Hotel in Blackpool as a "rotten, stinking hovel."  According to the report, the hotel believes that it is permitted to charge guests up to a maximum of £100 for negative comments, as the hotel's booking document so states.

According to the Mirror, this policy may violate unfair trade practices regulations.

For those of you curious about the hotel, you can find it TripAdvisor site here.

November 25, 2014 in In the News, Travel | Permalink | Comments (1) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 291 Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation 
S.I. Strong 
University of Missouri School of Law 
2 155 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
3 131 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
4 126 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
5 118 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
6 110 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
7 100 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
8 77 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
9 74 Regulating for Rationality 
Alan Schwartz 
Yale Law School 
10 73 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 126 Survivorship Rights in Joint Bank Accounts: A Misbegotten Presumption of Intent 
Gregory Eddington 
Oklahoma City University 
2 77 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
3 73 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School 
4 66 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
5 58 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law
6 58 Response: Boilerplate in Theory and Practice 
Margaret Jane Radin 
University of Michigan Law School 
7 50 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
8 50 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
9 47 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 
10 39 Unexpected Circumstances Arising from Word War I and Its Aftermath: 'Open' versus 'Closed' Legal Systems 
Janwillem Oosterhuis 
Maastricht University - Faculty of Law 

 

November 25, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 24, 2014

Model Contracting in the UK

The British Crown Commercial Service and the UK Government Legal Service have developed a substantially revised set of model terms and conditions for major procurement contracts with the government.  This “model contract” is for use as a base template in any government procurement framework where the procurement will “typically require some form of formal dialogue with potential suppliers.” 

Model contracts may ease of negotiations in situations where there is a real or perceived disparity in bargaining positions.  They could also help parties predict and thus avoid potential practical and legal pitfalls in the contractual performance and relationship.  Legal fees may be saved over having to reinvent the contractual drafting wheel every time a (new) supplier does business with, in this case, the government.

Among other improvements, the new model contract is considered to be less one-sided (in favor of the government) than the previous version although some “authority friendly” provisions still exist.  The model furthermore shifts some of the due diligence risk of contracting away from the supplier and onto the government.  It also allows the authorities to withhold a “proportionate amount” of the service charges until a performance failure is rectified “to the reasonable satisfaction” of the government; a provision that stands out as interesting in this country as well given the notoriously low quality of services seemingly provided by suppliers to the U.S. government.  True, the government here probably most often has to pick the most inexpensive provider, but that still does not seem to address the underlying issue of why suppliers are not held accountable to fix the various problems at an earlier stage and at a greater extent than they seem to be, even in connection with major problems (think Obamacare website or the many poorly constructed state and federal government buildings).

In the USA, “contracting officers” issue “warrants” for products and services for the government.  As can be expected, our system seems considerably less transparent and more complicated than that in the UK.  A model contract taking the interests of the suppliers in addition to just the government seems a highly user-friendly and modern approach that the US government might benefit from as well.

November 24, 2014 | Permalink | TrackBack (0)

Blogosphere Debate on "Whimsy Little Contracts"

SovernFriend of the blog Jeff Sovern, and his co-authors are creating quite a stir with their article that has been topping the charts on SSRN, 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements.

You can follow the discussion in the blogosphere at these sites:

Alan S. Kaplinsky and Mark J. Levin start things off  on Ballard Spahr's CFPB Monitor.  They make two main points.  First,  arbitration language  is generally quite easy to understand.  Second, it does not matter whether or not consumers know what they are getting into when they enter into a credit card agreement with an arbitartion clause if consumer arbitration is actually good for consumers.

Jeff Sovern responds on the Consumer Law and Policy blog to a number of the CFPB Monitor points, but on the main question of whether or not consumers benefit from arbitration, he concedes that the study did not attempt to answer that question  Rather, the point is that the basis for such arbitration is consent, and his study shows that consumers do not give meaningful consent to arbitration.

On the ADR Prof Blog, Sovern's co-author Paul Kirgis has a short response, the substance of which is as follows:

Levin and Kaplinsky don’t actually address the core problem we address in our article–that citizens are being unwittingly and unwillingly forced to give up important (and constitutionally guaranteed) procedural rights. Their point–and it is the point arbitration advocates almost invariably make–is that arbitration can be better for consumers than litigation. That may very well be true, at least some of the time. (See my post on the benefits of limited consumer arbitration here.) But it doesn’t answer the right question.

Kaplinsky and Levin have filed their response on Ballard Spahr's CFPB Monitor. They reiterate their argument, citing numerous court opinions, that arbitration clauses can be readily understood by consumers.  They remind readers that the purpose of the Federal Arbitration Act was to prevent courts from treating arbitration agreements differently from other agreements.  An arbitration clause in an otherwise enforceable agreement ought to be enforceable just as any other term in the agreemnt would be.

My questions in these debates are always the same.  If arbitration clasues are potentially beneficial to consumers, why make them mandatory?  Provide for arbitration as an option and make clear that if a consumer chooses to arbitrate, she cannot also sue.  In addition, what of class action waivers, which now often accompany arbitration provisions?  Kaplinsky and Levin claim that some studies show that plaintiffs do better off in individual arbitrations than they do in class actions, but I don't know how studies could show that since (so the argument goes), in some cases plaintiffs won't file claims at all unless they can do so through class actions.

November 24, 2014 in Commentary, Recent Scholarship, Weblogs | Permalink | Comments (1) | TrackBack (0)

Weekly News Roundup

EbolaFile this under "Nice!"  According to this report in the Durham Herald Sun, the parents of a child who has been prohibited from attending his private school, the Mount Zion Christian Academy, are suing the school for breach of contract.  The allegations of breach are based on the fact that the child's parents are paying tuition, but their son is forbidden to attend his school.  

And what has the child done to earn this suspension?  Nothing!  His parents were informed that the child would not be permitted to attend school becasue his father had traveled to Nigeria, and the school did not want to risk the spread of ebola.  The school took these precautions despite the fact that:

  • there is no ebola in Nigeria;
  • the father had no contact with anyone with ebola;
  • the father was screened at the airport and cleared.

The superintendent of schools failed to appear at a hearing and a judge ordered the school to allow the child to return

According to this story from the Spokane Spokesman Review, an Idaho judge has thrown out as invalid a $60 million contract that the state entered into with Education Networks of America (ENA) and Qwest to provide a broadband network that would link every Idaho high school.  The plaintiff in the case, Syringa, had partnered with ENA on one of the two bids on the contract, but when the state awarded the contract to ENA, it cut Syringa out of the allocation of work in the contract.  The court found this a violation of state procurement law.

Sandra Troian a physicist at CalTech, has filed a complaint against the school, alleging violations of the California whistleblower protection statute and breach of contract, among other things.  Troian alleges that she had reported that the school had been infiltrated by a spy who was sending classified information to the Israeli government.  Troian alleges that the school ignored her because it did not want to endanger a large contract with Jet Propulsion Laboratories.  She further alleges that the school has retaliated against her for blowing the whistle.  

November 24, 2014 in Government Contracting, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2014

Happy Thanksgiving: Here's a Special Adhesion Contract Just for You

A student shared with me this flyer that her father received.  I have provided a large reproduction so that readers can read the fine print, which is really the focus of this post.

IMG_0663

 On my reading, the meaning of this is as follows: if

  • You made the mistake of having previously subscribed to the newspaper; and
  • You have the temerity to continue living at the same address; and
  • You do nothing else,

A newspaper will be delivered to you on Thanksgiving.  

Regardless of what you do with it, your inaction will be deemed consent to future deliveries and you will be charged unless you call the newspaper and put a stop to it.  

This "offer" is a turkey, and those receiving it should tell the newspaper to stuff it.

November 21, 2014 in Commentary, True Contracts | Permalink | Comments (2) | TrackBack (0)

Farewell Meredith!

MeredithMeredith Miller started blogging here before I did.  She holds the record for the contributing editor with the longest tenrue on the blog.  

Her lively, quirky posts were one of the things that attracted me to this site and made it worthwhile to keep coming back.  She has been a steady companion, sounding board and dedicated contributor to our blog, and we will miss her contributions.

But life moves on, and we can only thank Meredith and wish her well in her new endeavors.  In her farewell e-mail to the rest of us, Meredith referenced her blogger's guilt.  Blogs are like sharks; they either move or die.  There have been many weeks when I despaired of finding the time and the content to keep this blog lively when Meredith would post a story that I knew would attract interest and buy the rest of us some time away from the blog.  After nearly ten years of providing us stories and laughts, he has certainly earned her release from blogger's guilt. 

I am hoping to compile a top ten list next week of my favorite Meredith posts.  Please feel free to nominate your favorites in the comments.

November 21, 2014 in About this Blog, Commentary | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Styl'n at the International Commercial Arbitration Moot

 

Joe_cocker_1970

In a couple of previous posts I've described the International Commerical Arbitration Moot (ICAM) and detailed some aspects of  this year's problem. None of this is news  to the contracts, sales, and arbitration professors around the country who are involved in this activity. Still I am surprised at how many schools do not have teams. I have also noted the possible use of the yearly ICAM problem as a source or inspiration of exam questions. 

For professors who are interested in starting a team there are many things to consider other than substance. These involve selecting and preparing a team.  Here at Florida this means trimming a class of 30 or so  hopeful students down to a team of 4 to 6.  It is a complicated task. We try as much as possible to hold try outs that resemble the actual competition in Vienna.  Other coaches know that the ICAM competition requires students to know the facts and law with precision and to have certain mannerisms that the mainly European judges find appealing.  For example, speaking slowly is critical since many if not most judges will have English as a second language. Also, the closer the English spoken is to British English, the better. Why? Most of the arbitrators will have learned English abroad. The use of virtually any slang means you should move up your departure date from Vienna because you will not go far in the competition.  "Gonna" must be "going to." "Wanna" must be "want to." No "big bucks." No "you guys." etc.  If there such a thing as an eloquent yet casual style, that seems to work best. Yes, theater is involved and the coaches are directors as much as teachers. Even "costumes" seem to count. I watched a rather uncomfortable session in which an arbitrator dressed down a competitor who had, well,  "dressed down"  by not having the top button of his shirt buttoned. I think most coaches would agree the competition starts when the students arrive at the U.S. departure airport because from that point forward they may be rubbing shoulders with the arbitrators they will encounter in Vienna. 

 

November 20, 2014 in Contract Profs, Film, Miscellaneous, Television, Travel | Permalink | TrackBack (0)

Good Night and Good Luck

I have been a contributing editor at ContractsProf since 2005.  The blog has provided a wonderful platform to share contracts-related news stories (as bizarre as possible), summarize important recent cases and self-promote my scholarship.  When Frank Snyder roped me into this nearly a decade ago, alot of things were different in varying degrees, especially: the Internet, law schools and the market for legal services.  Frank told me at the time that blogging might seem thankless, but it is not.  He said that every so often you meet someone at a conference and they realize you are that person who pointed out the connection between Eminem and Sister Antillico and the NDA Justin Bieber presents to house guests.  Frank was right.  I've met a lot of great people through the blog and its lead to meaningful conversations about contract law and other things.

One of the most rewarding parts of blogging is the record of posts we've created over the years.  Sometimes I will do a "quick and dirty" search on Google for the answer to a contracts question and I find the answer on this blog.  

I have come to the realization that I just do not have the time to commit to the blog right now.  In fact, earlier this week I made a list of things I was going to quit (quite liberating; highly recommended).  I am clearing the decks to focus on writing projects and other pursuits, including my new role at Touro as Director of Solo & Small Practice Initiatives.  It is where my heart is right now, and I am going to follow that.

In short, thanks Jeremy and previous blog overlords for letting me holdover this long.

With much gratitude for this opportunity, here's a reprise of turkey leftovers in time for Thanksgiving.


Goodbye Movie Clips by Ian_Buckwalter

November 20, 2014 in About this Blog, Contract Profs | Permalink | TrackBack (0)

Wednesday, November 19, 2014

New in Print

Tuesday, November 18, 2014

Weekly Top Tens from the Social Science Research Network

Aided by the ContractsProf Blog BumpWhimsy Little Contracts is topping the charts.  Behold the power of the Blog!

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 134 'Whimsy Little Contracts' with Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements 
Jeff SovernElayne E. GreenbergPaul F. Kirgis and Yuxiang Liu 
St. John's University - School of Law, St. John's University School of Law, St. John's University School of Law and St. John's University - School of Law 
2 104 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
3 94 Good Faith: A Puzzle for the Commercial Lawyer 
Noel McGrath 
UCD 
4 92 BitProperty 
Joshua Fairfield 
Washington and Lee University - School of Law 
5 83 The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property 
Orly Lobel 
University of San Diego School of Law 
6 74 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
7 71 Does a Promise Transfer a Right? 
David Owens 
University of Reading 
8 69 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
9 62 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
10 57 Contractual Indescendibility 
David Horton 
University of California, Davis - School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 74 Post-Private Law? 
Martijn W. Hesselink 
University of Amsterdam - Centre for the Study of European Contract Law (CSECL) 
2 69 Precedent in Contract Cases and the Importance(?) of the Whole Story 
Robert A. Hillman 
Cornell Law School 
3 62 Binding Future Selves 
Kaiponanea T. Matsumura 
Arizona State University (ASU) - Sandra Day O'Connor College of Law 
4 56 'Please Note: You Have Waived Everything': Can Notice Redeem Online Contracts? 
Cheryl B. Preston 
Brigham Young University - J. Reuben Clark Law School
5 54 Crossing the Threshold: Arbitral Jurisdiction after BG Group 
Alan Scott Rau 
University of Texas at Austin School of Law 
6 50 Some Features of Promises and Their Obligations 
Michael G. Pratt 
Queen's University (Canada) - Faculty of Law 
7 49 The Grand Unified Theory — Methods of Contract Interpretation and Result Oriented Surplus Maximization 
Kyle Chen 
Notre Dame Law School 
8 47 The End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement 
Myriam E. Gilles 
Benjamin N. Cardozo School of Law 
9 40 Contra Proferentem and the Role of the Jury in Contract Interpretation 
Ethan J. Leib and Steven Thel 
Fordham University School of Law and Fordham University School of Law 
10 37 Market Regulation of Contractual Terms: A Skeptical View 
Guy A. Rub 
Ohio State University (OSU) - Michael E. Moritz College of Law 

 

November 18, 2014 in Recent Scholarship | Permalink | TrackBack (0)

Monday, November 17, 2014

Weekly News Roundup

TiresAccording to this report in TireNews.com (and let's all give a round of applause to the Internet, because how else would I even know of the existence of Tire News?), Goodyear Tire & Rubber Co. is suing Sears, Roebuck & Co. and two subsisdiaries.  The suit, filed in Federal District Court in Akron where Goodyear is based, alleges breach of a 2009 agreement that called for Goodyear to make co-branded tires to be sold exclusively at Sears.  Based on Sears' sales predictions, Goodyear produced about 220,000 co-branded tires.  But in June, Sears decided to enter into a partnership with a different tire manufacturer and has refused to accept any more tires from Goodyear. Goodyear is seeking $18.9 million in damages, which represents the value of the co-branded tires.  For more coverage, you can check on this report in RubberNews.com.

Traut, Lieberman Straus & Shrewsberry, LLP report on Greenbelt Condominium v. 361 Manhattan Avenue LLC, et. al., in which the issue was an architect's liability for faulty construction in the five-story conversion and expansion of a one-story commercial building in Brooklyn, NY into condominum apartments.  Plaintiff alleged negligence and breach of contract.  The New York Supreme Court, New York County found that plaintiff's action sounded in contract not in tort and that the architect was not in privity with the plaintiff.  The court would not permit plaintiff's successor in interest argument to erode New York's privity law with respect to an architect's liability for breach of contract.  The court granted the defendant's motion to dismiss.

FootballIn the aftermath of revelations that the University of North Carolina created "paper classes," CNN.com reports here that one student athlete is now suing the University in a class action representing about 3100 students who allegedly participated in the fake classes.  The classes allegedly never met, and students got credit for them by writing a single paper.  The suit alleges breach of a promise to give plaintiff an education in return for his promise to play football.  The named plaintiff claims that he was drawn to UNC by promises that, whether or not he succeeded as a football player, he would emerge with a college degree.  Plaintiff was dismissed from the school in a cheating scandal, but he claims he was a scapegoat in the larger paper classes scandal.

Lyft, Inc. is suing its former Chief Operating Officer, Travis VanderZanden for breach of contract by breach of a confidentiality agreement and breach of fiduciary duty.  The complaint, provided by Scribd, can be viewed here.  After eighteen months at Lyft, VanderZanden had had enough, and he announced his intention to resign.  According to the complaint, while Lyft was negotiating with him, VanderZanden stopped showing up for work.  Two months later, Lyft learned that VanderZanden had been hired by its arch-rival, Uber, as Uber's Vice President of International Growth.  Lyft claims that when VanderZanden left the company, he took with him a Dropbox folder containing 98,000 files, including information belonging to the company.  VanderZanden also allegedly took with him his company phone which, instead of returning to the company, he claims to have sold on gazelle.com. 

Finally, we learn from Scribd that the Pennsylvania Superior Court issued its 15-page decision in Thogde v. Ladany, rejecting plaintiff's claim that she is entitled to $1.3 million is damages from Lehigh University.  She alleged that the university breached a contract with her when she was given  a C+ in a graduate course.  

November 17, 2014 | Permalink | Comments (0) | TrackBack (0)