ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Saturday, January 27, 2018

Grumpy Cat Lawsuit

Admittedly, this case does not present any difficult legal issues, but is worth the while anyway simply for the images involved. _99735192_gettyimages-459467912

A cat made famous online because of its sour-looking face caught the attention of the company Grenade Beverage, which, among other things, makes iced coffee drinks. the company obtained the rights to use the cat’s image (viewable here or on Twitter= on its packaging only, but also started using the image on t-shirts, coffee, etc.

The cat owners brought suit, claiming copyright and trademark infringement as well as beach of contract. A California federal jury agreed with the owners and awarded $710,000 in damages as well as $1 in nominal damages for breach of contract.

The cat reportedly earned millions of dollars in endorsement and advertising deals.

January 27, 2018 | Permalink

Friday, January 26, 2018

When a contract is unambiguous, then it gets enforced

A recent case out of Michigan, Dalton Township v. Charter Township of Muskegon, No. 335743 (behind paywall), involved a dispute over the payment of “hydrant fees.” The defendant ceased paying the fees, alleging that it was not required to pay them under the parties’ contract, and the plaintiffs sued. The defendant won summary judgment on the issue based on a plain language reading of the contract. Reiterating that “unambiguous contractual language must be enforced as written,” the court embarked on a close reading of the contract and determined that nowhere did it require the defendant to pay the disputed fees. There was no mention of any “hydrant fees” in the contract and the clauses that discussed revenue and expenses never mentioned any such fees. The court found that this was unambiguous and must be enforced as written and would not consider any extrinsic evidence on the issue.

(There was another issue in the case regarding whether disputes under the contract could be brought to court. The court concluded that it could resolve the dispute under the contract’s terms.)

January 26, 2018 in Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, January 25, 2018

Adequate counsel and time to consider terms defeats claims of fraud and duress

A recent case out of the Northern District of Illinois, Washington v. Board of Education of the City of Chicago, No. 17 CV 2343 (behind paywall), tackles, among other things, fraud and duress in the context of enforcing a settlement agreement. Washington worked for the defendant. After a dispute arose between the parties, they entered into a settlement agreement. Washington now seeks to declare the settlement agreement unenforceable on a number of grounds. 

First, Washington alleged fraud on the part of the defendant, alleging a number of misrepresentations and intentional omissions in the agreement. But the defendant argued that Washington's reliance on the alleged statements and omissions wasn't reasonable and further that it had no duty to disclose any information to Washington, which the court agreed with. Washington had her own counsel; had three weeks to consider the agreement; and had seven days after signing within which she could revoke the agreement. Since she had adequate counsel and time to consider the terms, the court found that Washington could not allege that the settlement agreement was procured by fraud. 

Second, Washington alleged duress because she feared for the termination of her job and "a humiliating public hearing." The board argued that Washington had alternatives to signing the agreement, and in fact those alternatives would have entitled her to continue to receive her full salary while she pursued them, so there would have been no economic duress to those choices. Again, given her independent counsel and the amount of time she was given to consider her choices, the court found that Washington failed to allege duress. 

Washington made many other allegations, including illegality, mistake, and lack of consideration, all of which the court dismissed. 

 

January 25, 2018 in Labor Contracts, Recent Cases, True Contracts | Permalink | Comments (0)

Wednesday, January 24, 2018

The Jewish Family - Between Family Law and Contract Law

Our colleague Yehezkel Margalit of the Netanaya Academic College in Israle has written a new book on Contract Law.   About this:

Traditional Jewish family law has persevered for hundreds of years and rules covering marriage, the raising of children, and divorce are well established; yet pressures from modern society are causing long held views to be re-examined. The Jewish Family: Between Family Law and Contract Law examines the tenets of Jewish family law in the light of new attitudes concerning the role of women, assisted reproduction technologies, and prenuptial agreements. It explores, through interdisciplinary research combining the legal aspects of family law and contract law, how the Jewish family can cope with both old and modern obstacles and challenges. Focusing on the nexus of Jewish family law and contract law to propose how 'freedom of contract' can be part of how family law can be interpreted, The Jewish Family will appeal to practitioners, activists, academic researchers, and laymen readers who are interested in the fields of law, theology, and social science.

See Professor Margalit's book here.

January 24, 2018 in Books | Permalink

Tuesday, January 23, 2018

Noncompete in the online-auction industry found unenforceable

A recent case out of Minnesota, Oberfoell v. Kyte, A17-0575, reminds all of us that noncompete agreements need to have a justification. Kyte worked for Oberfoell's online-auction business and signed a contract that contained a noncompete clause. He later left to start his own online-auction business and Oberfoell sued.

The lower court found the noncompete agreement to be unenforceable and this appellate court agreed. Oberfoell simply couldn't justify its necessity because he failed to assert a legitimate business interest protected by the noncompete clause. Oberfoell made general allegations that Kyte had personal relationships with many of Oberfoell's customers and thus possessed goodwill belonging to Oberfoell. But Oberfoell never identified any customers who he was worried about, nor did he ever introduce any evidence that Kyte had used any of Oberfoell's customer lists improperly. The court concluded that Kyte did not seem to be the "face" of the business nor was he the exclusive contact the customers had with the business. There was no evidence that any of Oberfoell's customers were concerned about Kyte leaving and no evidence that any of them followed Kyte to his new business. Therefore, Oberfoell failed to prove that the noncompete was protecting a legitimate business interest. 

Oberfoell also tried to assert that his customer lists and other materials were taken by Kyte and qualified as a violation of the noncompete. The court pointed out that the customer lists weren't secret and weren't treated as secrets by Oberfoell, and so couldn't qualify as trade secrets. The other materials suffered from the same lack of confidential protection. 

Finally, the noncompete also failed on the basis of reasonableness. It prohibited Kyte from competing in a radius of 150 miles for five years. The court found the 150-mile restriction to be "arbitrary," and Oberfoell produced no evidence justifying his choice of such a large radius. The five-year restriction was also unreasonable because the evidence showed Oberfoell could have replaced Kyte easily and quickly, so there was no reason to keep Kyte from competing for so long (in fact, Oberfoell apparently never hired anyone to replace Kyte, delegating his responsibilities to already-existing employees). There was no evidence that Kyte had received any extensive training that gave him an advantage in establishing his business, which took him a few months to get started. 

January 23, 2018 in E-commerce, Labor Contracts, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)

Thursday, January 18, 2018

But what does the HQ stand for????

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

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

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

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

January 18, 2018 in Commentary, Current Affairs, E-commerce, Games, In the News, True Contracts, Web/Tech | Permalink | Comments (0)

Wednesday, January 17, 2018

A decision to make you think twice before tweeting your idea to a celebrity

Those posting ideas to the internet, in tweets or YouTube trailers or other websites: take note. This is an older decision, but one worth recounting on this blog I think. Out of the Central District of California, Alexander v. Metro-Goldwyn-Mayer Studios, Inc., CV 17-3123-RSWL-KSx, warns you that making your ideas available for free can mean that you forfeit the right to pursue compensation if someone else uses them. 

The case concerns the movie "Creed," which the plaintiff Alexander alleged he came up with. He sued the defendants for misappropriation of his idea, breach of implied contract, and unjust enrichment. The misappropriation of idea claim fails in California, so the court moves on to the breach of implied contract claim, where Alexander also faltered because he failed to allege that he ever offered the "Creed" idea for sale. In tweeting the idea at Sylvester Stallone, the court read the allegations as portraying a gratuitous offer of the idea to Stallone. 

Alexander argued that he thought he would be paid for the idea based on industry custom, and that the defendants understood that he tweeted the idea at them with the expectation of payment. But the court disagreed. All Alexander did was tweet the idea at Stallone and post it all over the internet; those actions were not compatible with expecting compensation, since the idea was widely available for free. There was never any communication between Alexander and the defendants, so the court found that it "strain[ed] reason" to imply an agreement for compensation from an unanswered tweet and the posting of the idea in other places on the internet.  

Finally, the unjust enrichment claim also failed. Alexander could not allege how the defendants benefitted from his idea, since he never alleged how the defendants accepted the idea. At any rate, since the idea was available for free all over the internet, the court stated that it was "unclear" why the defendants should be expected to compensate Alexander. 

January 17, 2018 in Celebrity Contracts, Commentary, Film, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)

Tuesday, January 16, 2018

A dispute between a college and its resigned athletic director

The plaintiff Wilson resigned his position as the athletic director for the defendant Northland College after investigation for two sexual harassment complaints. Wilson and the college signed an agreement upon his resignation that restricted what the college could say about the situation to the media. The college radio station subsequently ran some stories reporting on Wilson's resignation. Wilson sued for, inter alia, breach of the separation agreement. The college moved to dismiss and the Western District of Wisconsin recently granted the motion in Wilson v. Northland College, 17-cv-337-slc (behind paywall).

The problem was Wilson couldn't identify any term of the contract that the college breached. The contract set forth a joint press release to be issued and stated that "[t]o the extent that either party is asked by a media source of any sort to provide an additional explanation, both parties will state that the mutually agreed upon statement speaks for itself." The college issued the require statement and the college radio host, beyond reporting that Wilson had resigned, did not provide any reasons for the resignation and referred to the press release, exactly as the contract required. 

Wilson's main arguments were that the press release was supposed to be the college's only statement and that no college employee (which the radio host was) could speak about Wilson's conduct, sexual harassment, or investigations in any way. But the court concluded that that was not what the contract called for and the radio host's statements that the college would not comment for the reasons behind the resignation beyond the press release complied with the college's contractual obligations. 

January 16, 2018 in Recent Cases, True Contracts | Permalink | Comments (0)

Monday, January 15, 2018

In which I arrive at a comic strip idea Marvel wouldn't approve of

I would say this is the time of year when I am perpetually behind, except that that is every time of year, so it's not surprising that it's taken me a bit to blog about Marvel's Create Your Own platform. As the article here makes clear, the terms and conditions require those uploading to the site to provide to Marvel the right to do almost anything it wishes with the material, without limit, notice, attribution, or payment. You can read all of the terms and conditions here.

In addition, the terms and conditions contain a long list of prohibited content, including such vague terms as "sensationalism" (defined as "killer bees, gossip, aliens, scandal, etc." which is one of my favorite collections of nouns ever) and "alternative lifestyle advocacies" (who is deciding what an alternative lifestyle is?), "misleading language" (misleading as to what?), and a catch-all "other controversial topics." (Incidentally, it also includes what I assume is a typo, as it prohibits "suggestive or revealing images" which it defines as "bare midriffs, lets, etc." I assume that's meant to be "legs.")

...Am I the only one who now wants to read a comic strip about aliens who advocate alternative lifestyles and raise killer bees, sharing scandalous gossip and double entendres (also prohibited) with their other alien alternative-lifestyle friends over a couple of glasses of wine (ditto) during their weekly high-stakes poker game (yup), all while baring their midriffs? 

(All of the prohibitions are blanket prohibitions except for graphic violence, which might be approved on a case-by-case basis.)

January 15, 2018 in Commentary, Current Affairs, In the News, True Contracts, Web/Tech | Permalink | Comments (0)

Thursday, January 11, 2018

Starbucks Wins: Enough Coffee in Cup

As we all know, there is a lawsuit for everything, including whether Starbucks deliberately underfills its lattes to save on the cost of milk. This could constitute a breach of express warranty. So argued a group of plaintiffs in the United States District Court for the Northern District of California recently. The court dismissed the argument on a motion for summary judgment. Unknown

Plaintiffs’ arguments were threefold: First, that “when filled to the brink,” Starbucks’ cups hold only exactly the beverage volumes listed on the menus. The court dismissed that argument because Starbucks requires its cup manufacturers to make the cups 8-12% larger than the promised beverage volume. Second, that the milk foam added to lattes should not count towards the beverage volume. However, as plaintiffs themselves had argued that milk foam is a component of a latte, the court quickly dismissed that argument as well. Third, plaintiffs argued that the “fill-to” lines in steaming pitchers used by baristas to make the lattes are too low for the finished product to contain the expressly promised volume. The court also dismissed that as the steam is an essential part of a latte.

In short, the court agreed with Starbucks that plaintiffs could not prove that any false statements had been made at all. What was warranted was also what was sold.

Incidentally, Starbucks is – as many other previously very popular brands – increasingly suffering from an image problem: they have apparently become too boring and basic. Once seen as cool and edgy, they are now seen as too ubiquitous, in large part because they simply have too many stores. Their solution is to open upscale Roasteries and Reserve stores.

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Meanwhile, the competition – Dunkin’ Donuts and McDonald’s for example – charge $3 less for coffee than Starbucks. The same fate might be countered by Subway Sandwiches, previously the nation’s second-largest fast-food chain.  They too might have grown too much and too fast. Additionally, Subway’s menus are seen as too boring, especially by younger millennials who prefer a more diverse range of options, including salads and healthier choices."

The Starbucks case is Strumlauf et. al. v. Starbucks Corporation, Case No. 16-cv-01306-YGR.

January 11, 2018 in Commentary, Current Affairs, Famous Cases, Food and Drink | Permalink

Wednesday, January 10, 2018

New Commercial Court in Belgium

Belgium has set up an English-language commercial court in order to attract Brexit-related and international commercial litigation as well as arbitration cases that have so far often been handled by British courts or international arbitration tribunals.  According to the Belgian government, the demand for arbitration is, in particular, likely to grow because of Brexit. “[] Brexit means [] that going to a court in London might not be an appropriate option,” it said, without giving a date for the start of the English-language hearings.

Interesting that Belgium seems to want to attract litigation where in the United States, courts often worry about "opening the floodgates to litigation."

Hat tip to Allen Kamp for bringing this story to the attention of the Contracts Law listserv in October (and apologies for posting this story so relatively late).

Happy New Year!

January 10, 2018 | Permalink

Monday, January 8, 2018

Heating oil contracts in the record cold

The news tonight reported on a real-life contracts issue near and dear to my heart, since my grandmother got caught up in an identical situation with her oil. Basically, New England has been in the middle of a two-week stretch of below-freezing temperatures, unusual for us. It's cold here, but not usually -18. Lots of people have contracts with oil companies that provide for automatic tank refill. These contracts are not cheap to enter into. My grandmother's cost hundreds of dollars a year, and that's just for them to show up; we still have to pay for the oil on top of it. But, because everyone's been using more oil than usual, the oil companies have been caught completely unprepared for how many of their automatic-renewal-contract customers have needed oil. How unprepared? Well, my 85-year-old grandmother spent more than 12 hours completely without heat, problematic in the arctic cold we were gripped in. And the problem is: What were our options? We'd paid hundreds of dollars to never be left in a situation, we thought, when our grandmother's tank would go empty. That was supposed to be the point of the contract, that we wouldn't have to worry about her running out of oil. But that was exactly what happened. 

And, as the news report makes clear, once you enter into this contract, you're not allowed to get your oil from anybody else. So we were in a situation where we couldn't get the service we'd paid for, and we were prohibited by contract from getting the service from anyone else. As the news report states, the oil company may waive the fee on a case-by-case basis. But, for many people on limited incomes dealing with already expensive heating costs, taking the risk of being charged a $399 fee might not be acceptable. 

January 8, 2018 in Commentary, Current Affairs, In the News, True Contracts | Permalink | Comments (2)

Wednesday, January 3, 2018

"Illegal use of alcohol" doesn't mean driving under the influence

A recent case out of the Sixth Circuit, Heimer v. Companion Life Insurance Co., No. 16-2274, "is about whether a contract should mean what it says." The insurance policy at issue disclaimed coverage for injuries that resulted from the "illegal use of alcohol." Heimer legally consumed a great deal of alcohol (he was legal drinking age), but then illegally operated a motorbike while his blood alcohol level was nearly twice the legal limit. He collided with another motorbike and suffered extensive injuries. 

The insurance company claimed that the policy didn't cover the accident because it resulted from the illegal use of alcohol. The court disagreed based on the plain language of the contract. The policy said "use," not "under the influence." Therefore, Heimer's injuries weren't covered only if his use of the alcohol was illegal, which it was not. Heimer's criminal offense was illegally using a motor vehicle, not illegally using alcohol.  

The court acknowledged that obviously the insurance company didn't want to have to pay for the injuries caused by the drunken motorbike driving, but the court noted that the contract's language needed to be modified to reach that result. 

A concurrence in part / dissent in part agreed with the outcome and accused the insurance company, the contract's drafter, of "sloppy drafting," but did allow that the phrase might be ambiguous. 

 

January 3, 2018 in Current Affairs, In the News, Recent Cases, True Contracts | Permalink | Comments (0)

Tuesday, January 2, 2018

Here's one for any of us who have ever felt frustrated by Internet speeds

A class action brought in the Western District of Tennessee over Internet service speeds, Carroll v. TDS Telecommunications Corp., No. 1:17-cv-01127-STA-egb (behind paywall), recently survived a motion to dismiss. Among the claims was a breach of contract claim based on the plaintiff's procurement of a high-speed Internet service plan. The plaintiff agreed to pay between $120 and $150 a month for access to service of a particular speed, which she alleged she did not receive, rendering her Internet incapable of supporting the uses, such as Netflix and YouTube, that she had been told the Internet plan would support. The court found these to be sufficient allegations of a breach of contract to survive the motion to dismiss. The plaintiff's other causes of action, including for fraud, unjust enrichment, and civil conspiracy, also survived the motion. 

January 2, 2018 in Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)

Tuesday, December 26, 2017

What happens in Vegas ends up in court!

Intoxication always seems like such an irresistible thing to test, because it's so easy to slip into a hypo. A recent case out of Nevada, Wynn Las Vegas, LLC v. Tofani, No. 69936 (behind paywall), brings it up as an issue in the context of Las Vegas gambling. You can listen to the oral argument here (the audio quality is kind of terrible; sorry about that). The Wynn casino advanced Tofani $800,000 in credit, all of which Tofani gambled and lost, and the Wynn is now attempting to collect the debt. Tofani's main defense consisted of lack of capacity because he was intoxicated at the time he borrowed the money. (He also argued that he lacked capacity because of a gambling addiction, but the court found that to be irrelevant based on Nevada statute.)

The Wynn did win a jury verdict but only of $450,000. The majority opinion found that there were fact issues regarding Tofani's level of intoxication and reasonable disaffirmation of the contract, so those were questions that properly went to the jury. However, the jury instructions were incorrect, so the majority reversed and remanded for a new trial.

A concurrence in part - dissent in part walked through Tofani's intoxication defense in more detail. Tofani had indisputably affirmed his debt to Wynn in writing several times...until, eighteen months after incurring the debt, his wife found out how much money he owed, after which he began disaffirming the debt, leading to this lawsuit. The concurrence/dissent pointed out that either Tofani owed $800,000 or Tofani didn't. Therefore, the jury's verdict made no sense: Nobody contended at any point the possibility that Tofani only owed half the amount. The majority's way of dealing with this was through the incorrect jury instruction, but the concurrence /dissent pointed out that there was no fact issues for the jury to resolve: A contract entered into while intoxicated is voidable, not void. The intoxicated person must disaffirm the contract...which Tofani did not do for eighteen months and, to the contrary, repeatedly affirmed the contract in writing. Therefore, Tofani, having indisputably ratified the contract, could not disaffirm the contract later. 

Anyway, entering into a contract while intoxicated doesn't mean you get to keep whatever you were given: "He doesn't get to keep the money forever just because the contract is void; it doesn't magically morph into a Christmas gift with no strings attached just because he was drunk." 

December 26, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Thursday, December 21, 2017

Contracts & Commercial Law Scholarship: Weekly Top Ten SSRN Downloads (December 21, 2017)

Top-ten-gift-package

Top Downloads For Contracts & Commercial Law eJournal

Recent Top Papers (60 days) as of: 22 Oct 2017 - 21 Dec 2017

Rank

Paper

Downloads

1.

Deterring Holdout Creditors in a Restructuring of PDVSA Bonds and Promissory Notes (¿Cómo disuadir a acreedores 'holdout' en una restructuración de bonos y pagarés de PDVSA?)

Lee C. Buchheit and G. Mitu Gulati

Cleary Gottlieb Steen & Hamilton LLP - New York Office and Duke University School of Law

327

2.

Transatlantic Data Privacy

Paul M. Schwartz and Karl-Nikolaus Peifer

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law

240

3.

Pseudo-Contract & Shared Meaning Analysis

Robin Bradley Kar and Margaret Jane Radin

University of Illinois College of Law and University of Toronto - Faculty of Law

174

4.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

Omri Ben-Shahar and Ariel Porat

University of Chicago Law School and Tel Aviv University

141

5.

Abolishing Consideration: An Argument from Coherence

Azfer A. Khan

Harvard University, Law School, Students

139

6.

Privatizing Law: Is Rule of Law an Equilibrium without Private Ordering?

Gillian K. Hadfield and Barry R. Weingast

USC Law School and Department of Economics and Stanford University, Department of Political Science

107

7.

Objective Plain Meaning in Common Law Contracts

Stephen C. Mouritsen

University of Chicago - Law School

106

8.

Deal Momentum

Cathy Hwang

Stanford Law School

106

9.

The End of Bargaining in the Digital Age

Saul Levmore and Frank Fagan

University of Chicago Law School and EDHEC Business School

105

10.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Jay A. Mitchell

Stanford Law School

99

 

Top Downloads for Law & Society: Private Law - Contracts eJournal

Recent Top Papers (60 days) as of: 22 Oct 2017 - 21 Dec 2017

Rank

Paper

Downloads

1.

Transatlantic Data Privacy

Paul M. Schwartz and Karl-Nikolaus Peifer

University of California, Berkeley - School of Law and University of Cologne - Faculty of Law

240

2.

Introduction: Contract in Commercial Law

James J. Edelman, James Goudkamp and Simone Degeling

University of Oxford - Faculty of Law, University of Oxford - Faculty of Law and UNSW Australia - Faculty of Law

233

3.

Pseudo-Contract & Shared Meaning Analysis

Robin Bradley Kar and Margaret Jane Radin

University of Illinois College of Law and University of Toronto - Faculty of Law

174

4.

‘Oops!... I Did it Again’: New Restrictions on Foreign Counsel in UAE Arbitrations

Amr Omran

Freshfields Bruckhaus Deringer LLP, Dubai, United Arab

168

5.

The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm

Omri Ben-Shahar and Ariel Porat

University of Chicago Law School and Tel Aviv

141

6.

Abolishing Consideration: An Argument from Coherence

Azfer A. Khan

Harvard University, Law School, Students

139

7.

Objective Plain Meaning in Common Law Contracts

Stephen C. Mouritsen

University of Chicago - Law

106

8.

Deal Momentum

Cathy Hwang

Stanford Law School

106

9.

Whiteboard and Black-Letter: Visual Communication in Commercial Contracts

Jay A. Mitchell

Stanford Law School

99

10.

Crowdfunding Signals

Darian M. Ibrahim

William & Mary Law School

98

 

December 21, 2017 | Permalink

The 13th Annual International Conference on Contracts (KCON XIII) is Looking Great!

 Barry-New-LogoKCON, the annual International Conference on Contracts, is a favorite of this blog, having been associated with us since its inception. The 13th Annual International Conference on Contracts will be held at Barry University Dwayne O. Andreas School of Law, which is just around the corner (February 23 and 24, 2018).  The conference is shaping up nicely and is well worth adding to your conference and travel plans for next semester!

For those unaware, the 13th Annual International Conference on Contracts is the largest annual scholarly and educational conference devoted to Contracts and related areas of commercial law. The two-day conference is designed to afford contracts scholars and teachers at all experience levels (including those preparing to enter the academy and those whose primary teaching appointment is not in a law school) an opportunity to present/demonstrate and discuss (formally and informally) recently-published and accepted-but-not-yet-published scholarship, works-in-progress, thought experiments, not-yet-fully-formed ideas for scholarship, and pedagogical innovations, as well as to network with colleagues — and potential collaborators or mentors — from around the country and other parts of the world.

Courtesy of conference organizer Dan O'Gorman, here are some highlights so far:

James J. White Robert SummersWe will be honoring Professor James J. White of the University of Michigan Law School and Professor Robert S. Summers of Cornell Law School with Lifetime Achievement Awards for their contributions to the field of contract law. Professor White will be in attendance to accept the awards on behalf of both himself and Professor Summers.

The Barry Law Review has agreed to have its annual spring symposium be a panel at KCon 13. In honor of our lifetime achievement award recipients, the panel will focus on Article 2 of the U.C.C. The panel will be moderated by Victor Goldberg, and panelists include Lisa Bernstein (via Skype), Robert HillmanSteven Walt, and James White. A second panel on Article 2 is also in the works moderated by Frank Snyder, and featuring Henry Gabriel, Reporter for the Revisions of U.C.C. Article 2, 1999-2003, and whose piece will also be included in the symposium edition.

 We will have a panel on Judge Posner and his contracts jurisprudence (moderated by Michael Malloy, with panelists Bob Brain, Deborah Gerhardt, Victor Goldberg, and Jeff Harrison).

We will have a panel on the economics of contract law (moderated by Jeff Harrison, with panelists Yonathan Arbel, Peter Gerhart, Victor Goldberg, and Wentong Zheng).

We will have a panel celebrating/decrying Judge Traynor’s 1968 opinion in Pacific Gas & Electric on its 50th anniversary (moderated by Fred Jonassen, with panelists Steve Burton, Robert Hillman, and others soon to be confirmed).

Professor Tina Stark will have a show-and-tell during one of the lunch sessions about her antique English indentures. She has some going back to the 1400s, others from the Elizabethan age, some with huge regnal seals, and others of historical interest because of references to peppercorns.

We have a substantial number of international scholars who will be making presentations.

We will be having dinner at a tapas restaurant in downtown Orlando, with a trivia contest during dinner.

So if you have not done so already, we encourage you to reserve a room at the Embassy Suites by Hilton in downtown Orlando at your earliest convenience. 

You can register for the conference here: http://www.barry.edu/kcon/  

You can book your hotel room here: http://embassysuites.hilton.com/en/es/groups/personalized/M/MCODTES-BAR-20180222/index.jhtml

The deadline to submit an abstract was December 11, but abstracts submitted after that date will be accepted on a space available basis.

We look forward to seeing many of you in Orlando in February. Please note that the average high temperature in Orlando on February 23 and 24 is 74 degrees. (This is not a warranty, however.)

 

December 21, 2017 in Conferences | Permalink

Keeping premises safe doesn't necessarily mean banning dogs

A recent case out of Connecticut, Madore v. ISCC, LLC, HHBCV166033741S, sits at the intersection of contract law and negligence. The plaintiff was bit by a dog at an ice skating rink operated by the defendant and sued under theories of both negligence and breach of contract. The contract theory pivoted around the defendant's obligation in its lease to keep the premises in "good, safe, and habitable condition." The plaintiff tried to argue that this created a duty of care toward the plaintiff to keep the premises safe for the plaintiff, which the defendant failed to do since the plaintiff was bit by a dog while on the premises. However, the court noted that the contract said nothing about dogs. The obligation to keep the premises safe did not require the defendant to ban dogs from the premises. Therefore, the provision could not be read to create a duty of care to keep the plaintiff safe from harm caused by dogs on the premises. 

December 21, 2017 in Recent Cases, True Contracts | Permalink | Comments (0)

Wednesday, December 20, 2017

When your extramarital relationship can allegedly be found in a contract

I may have just used the recent royal engagement news as the basis of my Contracts final hypo, so I read with interest this complaint out of the Eastern District of New York, Purcell v. Pressman, 17-cv-6879 (behind paywall), that got sent to me under an alert. (I have the alert set up for "fanfiction," because of my scholarly interest in fan activities, and sometimes I get the most random hits on it, like this one.) The complaint is behind a paywall, but the New York Post has an article up that summarizes both this complaint and the previous fraud complaint filed in Connecticut District Court by Pressman against Purcell a few days before Purcell filed her lawsuit

Basically, Purcell's complaint alleges a passionate and intense relationship begun in a hotel in Puerto Rico and continued over lavish vacations in Antigua and New York City. At one point, Pressman allegedly drew up a contract between his alleged business Triton and Purcell, containing certain provisions under which the company agreed to pay some of Purcell's expenses, although neither party ever signed the contract. The contract, according to the allegations of the complaint, was meant to be a gesture of commitment on the part of Pressman to his romantic relationship with Purcell. Pressman's complaint denies ever drafting the contract. 

The allegations continue: Purcell and Pressman moved in together. A few days later, Pressman suffered a medical emergency and was rushed to the hospital after Purcell called 911. Pressman also disputes this version of the tale in his complaint, claiming he called 911 himself after Purcell failed to assist him; as you can tell, Pressman's complaint tells a different story about the relationship with Purcell, accusing her of defrauding him, instead of Purcell's opposite allegations.

While in the hospital, Purcell claims to have answered Pressman's ringing cell phone and to have realized only then that Pressman was married. The complaint then continues to allege further events in the relationship and then asserts a number of causes of action, including breach of contract based on the contract Pressman had allegedly drawn up. 

The complaint concedes that neither party ever signed the contract, but Purcell alleges that she acted in reliance on the enforceability of the contract and so, therefore, the contract should be treated as valid, with the execution of it merely a formality. As I've stated, Pressman has denied ever drafting the contract. 

There are no other pleadings in this case yet. 

December 20, 2017 in Celebrity Contracts, Current Affairs, In the News, Recent Cases, True Contracts | Permalink | Comments (0)

Tuesday, December 19, 2017

If you're going to release your right to pursue unknown claims, you'd better mean it

A recent case out of the Seventh Circuit, ADM Alliance Nutrition, Inc. v. SGA Pharm Lab, Inc., Nos. 16-2331 and 16-2953, reminds us all that signing a release of unknown claims can, indeed, do exactly that. (You can listen to the oral argument here).

The parties in question were two sophisticated commercial parties with presumably access to legal advice if they desired it. When they terminated their business relationship, they signed a release from all claims, known or unknown. ADM then later discovered alleged fraud on SGA's part during the course of their former business relationship and sought to sue for this fraud. The Seventh Circuit, however, enforced the plain language of the release, noting that releases are permitted to encompass unknown fraud claims: 

Two sophisticated businesses signed an agreement to walk away from each other here. ADM chose to relinquish its right to bring any and all claims arising out of the Purchase Agreement, whether known or unknown. It also agreed that no representations were made to induce it to enter into the Termination Agreement other than those contained in the agreement.

Therefore, the release was enforced. Let this be a word of warning: Be careful when signing releases. 

December 19, 2017 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)