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Monday, May 2, 2016
You Might Think City Buses Don't Have a System, But They Totally Do! (it just might be copyright infringing)
Entities and people come together, do business, have disagreements, go their separate ways. It happens all the time. But nowadays, since so many things have embedded software, these break-ups of business relationships have copyright implications. If you don't have a license to continue using the embedded software, when you break up with another business, that means you have to stop using whatever contains the software, too. Theoretically.
A recent case out of the Middle District of Tennessee, ACS Transport Solutions, Inc. v. Nashville Metropolitan Transit Authority, 3:13-CV-01137, dealt with this issue. The Nashville Metropolitan Transit Authority ("MTA") had contracted with ACS to develop a system for MTA to manage its buses. The system ACS created contained copyrighted software that ACS expressly licensed to MTA. A few years after the development of the system, MTA discontinued its relationship with ACS, but it continued to use the system that contained the embedded software. ACS contacted MTA and told it that it was using the software without a license and infringing ACS's copyright. Nevertheless, MTA continued to use the system with the embedded software, and so ACS eventually brought this lawsuit.
MTA argued that, when it terminated its relationship with ACS, it did not terminate the license to use the software, and so it was still properly licensed. However, MTA's relationship with ACS was governed by a contract, within which was the software license. Terminating the relationship set forth by that contract, the court found, necessarily terminated the software license also found in that contract.
MTA additionally argued that it had paid for the system and that therefore it should be entitled to use the software within the system indefinitely. ACS did agree that MTA had paid for the system and would not have owed ACS any further payments...if ACS and MTA had fulfilled the rest of their contractual obligations. Instead, ACS argued, MTA breached its obligations. Therefore, ACS rescinded MTA's license to use the software.
There was some slim hope for MTA. MTA argued that it had an implied license to use the software for a "reasonable" period of time while it transitioned to the new software of the company it hired to replace ACS. The court seemed skeptical that the length of time MTA had used ACS's software after terminating ACS (it ended up using the software for more than two years after terminating ACS) was reasonable; the court implied that, even if MTA had had an implied license to use the software while it transitioned, MTA's use had exceeded that implied license's scope. However, the court found this to be a material fact in dispute and so inappropriate to resolve at the summary judgment stage.
Under the terms of its contract with ACS, MTA received only a non-exclusive, revocable license for the software. If MTA had wanted more protection, MTA should have negotiated better license terms. ACS, of course, might never have been amenable to granting better license terms. But let this case be a lesson: Many things are going to come with embedded software these days, and that software is copyrighted. You're going to need to dot your copyright i's and cross your copyright t's regarding this software; don't lose sight of that by focusing instead on the larger product you're buying. MTA may have thought of itself as buying a system, but it really needed to think of itself as buying the software within the system.
May 2, 2016 in Commentary, Government Contracting, Recent Cases, Travel, True Contracts, Web/Tech | Permalink | Comments (0)
Watering Down Your Iced Coffee Drinks
A class action lawsuit has been filed against Starbucks for negligent misrepresentation, fraud and unjust enrichment in the company's sale of cold drinks.
The company makes a good deal of its money on cold coffee and tea drinks prepared in-store. In 2014, shaken iced tea drinks were the most profitable menu addition of the year, according the lawsuit.
The company offers three sizes of drinks — Tall, Grande, Venti and Trenta — which correspond to 12, 16, 24 and 30 fluid ounces, respectively. These fluid ounce measurements are advertised in the store. However, because of the large amounts of ice added to the drinks, customers actually receive much less (at a high price, as is well known).
The complaint claims that "[a] Starbucks customer who orders a Venti cold drink receives only 14 fluid ounces of that drink — just over half the advertised amount, and just over half the amount for which they are paying … In the iced coffee example, a Starbucks customer who orders and pays for a Venti iced coffee, expecting to receive 24 fluid ounces of iced coffee based on Starbucks' advertisement and marketing, will instead receive only about 14 fluid ounces of iced coffee."
A Starbucks spokesperson states that "[o]ur customers understand and expect that ice is an essential component of any 'iced' beverage," adding that the company would remake any beverage if a customer is unsatisfied.
Maybe it would be a better idea to get a beer or a wine. They can't water those down (I think...). Five Starbucks locations in the D.C. area have started serving booze and tapas as part of a nationwide effort to keep some of its stores open after typical coffee shop hours.
Going to a coffee shop for… tapas and alcohol in order to … what, stay loyal to an already huge brand? Avoid trying a local bar? If you think "only in America," think again: Starbucks is also enjoying huge success in Europe, home of exquisite coffee shops with excellent pastries and snack. Talk about selling sand to Sahara…
May 2, 2016 in Current Affairs, Food and Drink, In the News, True Contracts | Permalink | Comments (1)
Thursday, April 28, 2016
No Contractual Duty of Good Faith in Texas
In spite of most jurisdictions reading a duty of good faith and fair dealing into all contracts, a Fifth Circuit Court of Appeals has held that it is unlikely that the Texas Supreme Court would find such a duty to exist in Texas. Wow. Additionally, the court found that no fiduciary relationship between a university student and his/her university faculty and other representatives.
Section 205 of the Restatement (Second) of Contracts states that "[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement." See also Farnsworth, "Good Faith Performance and Commercial Reasonableness under the Uniform Commercial Code," 30 U.Chi.L.Rev. 666, 670 (1963).
The seminal case in this area is Market Street Associates v. Frey, 941 F.2d 599 (7th Cir. 1991). In that case, Judge Posner held that in spite of the somewhat "moralistic overtones of good faith," not every contract signatory is expected to be his "brother's keeper." Nonetheless, "the essentials of the modern doctrine [are] well established in nineteenth-century cases." "This duty is … halfway between a fiduciary duty (the duty of utmost good faith) and the duty merely to refrain from active fraud. Despite its moralistic overtones it is no more the injection of moral principles into contract law than the fiduciary concept itself is." "The office of the doctrine of good faith is to forbid the kinds of opportunistic behavior that a mutually dependent, cooperative relationship might enable in the absence of rule. "
In the new Texas case involving a student at SMU who got fired from his part-time job as a Community Adviser for misconduct toward students and faculty, the circuit court held that "Texas law does not impose a generalized duty of good faith and fair dealing and, in fact, rejects it" in all circumstances apart from when 1) a formal fiduciary relationships exists or 2) a "special or confidential relationship" exists. Examples of the former are attorney-clients, trustee-beneficiary, and principal-agents. In Texas, the latter apparently only includes the relationship between an insurer and an insured. That's it! Texas courts have, found this panel, refused to impose the duty on, for example, employer-employees (not too surprising), lender-borrowers, medical provider-patients (double wow!), mortgagor-mortgagees, and franchisor-franchisees. The court in the described case also said that an "ordinary student-professor relationship is no different;" in other words, there is no fiduciary or even "confidential" or "special" relationship between students and faculty in Texas.
The case does not show how the student's allegation that a duty of good faith existed between SMU and the student would really have helped the student on the merits. SMU seemed to have a very good case for firing the student from his job. Nonetheless, it is surprising that the court would so categorically reject that such a duty even exists apart from in traditional fiduciary relationships. While it may make sense that "a purely unilateral, subjective" sense of trust in one's contractual counterpart and that the other party will have one's interests at heart is not enough to create a fiduciary relationship, there is a vast difference between that and reading out the duty of good faith and fair dealings from most contracts law in general in Texas. Of course, as contracts law is state law, it is true that it is the Texas courts who must change this line of thinking, but doing so seems to be highly warranted given how courts in other parts of the nation rule on the issue.
The case discussed is Hux v. Southern Methodist University, 2016 WL 1621720 (no free online copy available yet).
April 28, 2016 in Labor Contracts, Recent Cases, Teaching, True Contracts | Permalink | Comments (2)
Tuesday, April 26, 2016
Making an Option Irrevocable: The Mere Performance of Due Diligence Isn't Enough
A recent case out of California, Clever Hospitality, Inc. v. Patel, B264921, sheds light on the limits of due diligence to serve as consideration when it comes to making an offered option irrevocable. In that case, the Patels, the owner of a hotel, gave Clever, a prospective buyer, a 60-day option to buy the hotel. During that time, Clever indicated it was going to conduct due diligence. If, at the conclusion of its due diligence, Clever was interested in buying the hotel, it was supposed to exercise the option by depositing $150,000 into escrow. Clever used the 60-day period to perform significant amounts of due diligence, so much that Clever asked for an extension of the 60-day period. The Patels eventually refused the request and indicated to Clever once the 60-day period was over that, because Clever never deposited $150,000, the option had lapsed. However, the Patels and Clever continued to have contact regarding the hotel, although the Patels also told Clever that they were speaking to other potential buyers as well. Eventually, a few months later, the Patels sold the hotel to another buyer. Clever then sued the Patels for breach of contract.
Clever's main argument was that its time, effort, and money invested in its due diligence acted as consideration to render the Patels' option irrevocable. The court, however, noted that the necessary consideration here had to be money or services that the Patels had bargained for. In this case, Clever's due diligence only benefited Clever, not the Patels. After all, the Patels would have been quite content if Clever had performed no due diligence at all and instead just bought the hotel.
Clever then argued that promissory estoppel should save it and render the option irrevocable. However, the court could find no evidence that the Patels ever made any promise to Clever that it would keep the option open. In fact, the evidence seemed to show that the Patels had indicated the opposite to Clever: that the option had expired and that they were talking to other buyers. Therefore, there was no promise for Clever to reasonably rely upon and promissory estoppel was inappropriate.
Clever never at any time placed any money in escrow the way it was supposed to under the terms of the option. It seems as if Clever assumed that the Patels had no other serious buyers and that maybe there would be plenty of time for Clever and the Patels to work out a deal, and so the lapsing of the option didn't seem to concern Clever all that much...until a sale to someone else had been consummated. This case serves as a warning: Due diligence alone might not be enough to save you from losing out on the object of that due diligence.
April 26, 2016 in Recent Cases, True Contracts | Permalink | Comments (1)
Monday, April 25, 2016
Love It, List It, or Sue Over It
(Source: hgtv.com)
My love for HGTV is real and enduring. It started as a House Hunters addiction when I was a practicing lawyer looking for something mindless to watch when I got home at night and it has seriously spiraled out of control. I find something soothing about the formulaic nature of the shows; their familiarity is like a security blanket to me. And I've also realized that I've actually learned a lot about my taste. For what it's worth, I do feel like HGTV has made me think more about how I decorate my house, even if I can't afford a professional decorator.
So I gobbled up with interest every single article I could find on the recent "Love It or List It" lawsuit. If you don't know the show, it's one of my favorites for the snark between the competing real estate agent and designer. One half of a home-owning couple wants to renovate their existing home; the other half wants to give up and move away. Enter the "Love It or List It" team, showing the couple houses they could buy while simultaneously renovating their home. The theory is that the couple can then decide to love it, or list it.
I entertain no illusions about the "realness" of reality television (really, mostly I've learned from reality television that apparently an enormous number of people are tremendously good actors - while others are decidedly not), but this recent lawsuit attacks not just the "realness" of reality television but practically the *definition* of it: "Love It or List It," the homeowners accuse, were much more interested in making a television show than they were in renovating this couple's home. On at least some level, this lawsuit seems to be a challenge to what "Love It or List It" is: a television show or a general contractor.
As a general contractor, the homeowners weren't too happy with the show's performance. They allege shoddy work on their house, including low-quality product, windows that were painted shut, and holes big enough for vermin to fit through. (They also allege their floor was "irreparably damaged," although I think they can't possibly mean that in the true legal sense of "irreparably," because surely the floor can be repaired?)
It seems to me this is going to come down to the contract between the parties. What did "Love It or List It"'s production company promise? I would love to see what the contract said about the work that was to be performed, how that work was to be performed, and what the financial arrangements were (since part of the couples' allegations is that a large portion of their money was diverted away from the renovations). However, for some reason, I have had an incredibly difficult time locating a copy of the complaint (never mind the contract). None of the stories I've found linked to it, and I have had zero luck finding it through Bloomberg Law's docket search.
April 25, 2016 in Commentary, Current Affairs, In the News, Recent Cases, Television, True Contracts | Permalink
Friday, April 22, 2016
Contracts for Health Benefits: Entire or Divisible?
To determine when the statute of limitations has run in relation to benefits contracts, the classification of the contract as "entire" or "divisible" may turn out to be crucial. If the contract is entire, the statute may start running on, for example, a certain date when the employer made a single contractually binding promise to provide health care for its employees, typically once a year. If the contracts is divisible, the contract may extend further into the future and run from, for example, ongoing times when the employee makes monthly premium payments under the plan.
The Eleventh Circuit Court of Appeals notes that in Georgia, a contract is entire if "the whole quantity, service, or thing, all as a whole, is of the essence of the contract, [] if it appears that the contract was to take the whole or none," and if the contract "involves a single sum certain." In contrast, a divisible contract is one that involves "successive performances" and is "for an indefinite total amount which is payable in installments over an uncertain period." (See Wood v. Unified Government of Athens – Clarke County, Ga. 2016 WL 1376443. ).
In the dispute before the court, the panel found that although the employer had made a single contractual promise for retirement healthcare benefits, the contract was divisible because the employer could only perform its promise by successive performances throughout the uncertain span of each retiree's life. This was furthermore the case because of the unpredictable fluctuations in each retiree's healthcare costs, the contract requiring the payment of many successive payments, and because the employees had no immediate claim for the entirety of the contract if the contract were entire. Thus, the statute of limitations ran separately as to each premium payment when it became due.
April 22, 2016 in Labor Contracts, True Contracts | Permalink | Comments (0)
Friday, April 15, 2016
Gilmore Girls, Netflix, Derivative Works, and Contracts in a Changing Television Landscape
(image from IMDB)
Gilmore Girls fandom rejoiced when it was announced that the show would receive a revival on Netflix (and, even better, that it will include Sookie!). But, as often seems to be the case, developments that bring a fandom joy can come with legal entanglements. In this case, producer Gavin Polone's production company Hofflund/Polone has filed a lawsuit against Warner Bros., alleging breach of contract. The lawsuit, Hofflund/Polone v. Warner Bros. Television, Case No. BC616555 (behind paywall), was filed in the Los Angeles County, Central District, Superior Court of California.
The case revolves around the agreement between the parties concerning the original production of Gilmore Girls. The parties agreed, according to Hofflund/Polone, to provide Hofflund/Polone with "$32,500 for each original episode of Gilmore Girls produced in any year subsequent to 2003," along with some percentage of the gross and with "executive producer" credit. With the news of the recent Netflix revival, Hofflund/Polone allegedly reached out to Warner Bros. seeking compensation under the agreement. According to the complaint, Warner Bros. took the position that the Netflix version of Gilmore Girls is a derivative work based on the original series, and so therefore does not trigger compensation to Hofflund/Polone.
It's an interesting question that highlights one of the debates copyright scholars have: What, exactly, is a "derivative" work? Copyright owners have the exclusive right to reproduce their own works or works substantially similar to those works. They also have the right to produce derivative works based on those works, which, in the jurisprudence, has ended up using the same substantially similar standard to elucidate the "based on" language. Which means: what is the point of the derivative work right, if its standard seems the same as the reproduction right? This case has the potential to force confrontation with that problem: Where do we draw the line between infringement of the reproduction right and infringement of the derivative work right? When does a substantially similar work cross the line between reproduction and derivative work?
One thing that's been noted about the derivative work right is it tends to be talked about when there's some kind of change in medium or other kind of adaptation different from the original form (book to film, or translation from one language to another). The definition in the statute points us to that focus. Which raises the question: Is a Netflix revival more like a translation or adaptation of Gilmore Girls than it is like an exact copy of Gilmore Girls? Does this depend on how true it is to the original show?
The "television" landscape has shifted dramatically since Gilmore Girls premiered. It'll be interesting to see how contracts formed pre-Netflix-and-Amazon-production-era function going forward.
April 15, 2016 in Celebrity Contracts, Commentary, Current Affairs, In the News, Recent Cases, Television, True Contracts | Permalink | Comments (1)
Tuesday, April 12, 2016
Insurance Policies: Making Fantasy Viable in the Real World
That's not usually a tagline you associate with insurance policies, but it nevertheless appears to be true.
I feel like I've been doing a lot of blogging about insurance policies lately. So it almost seemed inevitable to me when I received my latest Rec Center e-mail (if you're not signed up, you totally should be!) that there would be a link to an article about insurance policies. However, this article is about how the growing willingness of insurance companies to insure fantasy live action role playing (LARP) events may be helping those events to become more common. As it becomes easier for the average person to get insurance for a LARP event, those events become simpler and less risky to host. So, if you've been wanting to set up your own quest and re-enact some fantasy combat, you can now make sure that people are covered by insurance if they fall during the battle and break an arm. The article notes, by the way, that injuries at LARP events are rare. One of the insurance companies hasn't received a single claim in five years. So this seems like a win-win for everyone.
You should go read the article, it's really interesting, and a reminder that marijuana facilities aren't the only industry new-ish to the insurance area where policies need to be interpreted. Anything humans can dream up for fun can carry insurance policies with it. I guess they're kinda-sorta the equivalent of a healing spell or potion? (With a lot less magic.)
April 12, 2016 in Games, In the News, True Contracts | Permalink | Comments (0)
Saturday, April 9, 2016
Shipping War (the package kind, not the fanfiction kind)
How far does a franchisor have to go to help out a franchisee? That was the question asked in a recent case out of the Southern District of New York, The UPS Store, Inc. v. Hagan, 14cv1210 (behind paywall). This particular dispute between UPS and its franchisees the Hagans attracted a fair amount of online attention when it first erupted back in 2014. Now, UPS has been granted partial summary judgment on the contractual disagreements.
UPS and the Hagans entered into a variety of contract carrier agreements, franchise agreements, and promissory notes in connection with the Hagans' operation of eleven UPS franchises in the New York City area. The relationships between the parties eventually broke down, and accusations were flung back and forth between them. This federal lawsuit included trademark and trade secret allegations, in addition to breach of contract claims, and the Hagans counterclaimed alleging violations of New York's deceptive trade practices act.
With regard to the breach of contract claims, the Hagans conceded that they failed to perform under the contracts, but alleged that their breach was excused by impossibility, impracticability, or UPS's own breach of the implied covenant of good faith and fair dealing. The court, however, granted summary judgment to UPS, finding that the Hagans had impermissibly breached the contracts.
The Hagans' main allegations revolved around UPS's failure to police other franchisees, to allow the Hagans to bundle customer invoices, to provide the Hagans with better computer technology, and to negotiate with private investors who were funding the Hagans' businesses in order to soothe them about the businesses' profitability. But UPS was not required to do any of those things under the terms of the contract. Because they were not "basic assumptions" of the contract, the impractiability and impossibility defenses failed, and the alleged breach of the covenant of good faith and fair dealing was likewise doomed. The Hagans' arguments essentially boiled down to a desire for UPS to take "affirmative action" to save the Hagans' businesses as they began to fail. The Hagans termed this a "duty to cooperate" that was included in the covenant of good faith and fair dealing. But the court, applying California law, rejected this idea. Again, there was nothing in the contracts that required UPS to take the affirmative steps the Hagans desired, and the court declined to impose obligations on UPS beyond those agreed to under the contract.
The franchise agreement between the parties contained a liquidated damages clause dictating that damages should be the amount of royalties paid to UPS the previous year multiplied by the number of years (not to exceed two) left in the contract term. The Hagans argued that this was an unreasonable estimate of UPS's damages because UPS would recoup the lost royalties from the Hagans' franchises through either issuing new franchises or increased business to the remaining UPS franchises in the area (which the Hagans showed were all less than half a mile from the Hagans' locations, this being New York City). The court, however, found that, although maybe the Hagans might be right, that didn't mean that the clause had been unreasonable at the time of execution of the contract, which was the relevant test. Therefore, the liquidated damages clause was enforceable.
April 9, 2016 in Recent Cases, True Contracts | Permalink | Comments (0)
Wednesday, April 6, 2016
Marijuana Growing Facility Insurance Policies
By Rotational - Own work, Public Domain, https://commons.wikimedia.org/w/index.php?curid=3455706
Here's an area of law where we're going to need a lot more guidance over the coming years, I suspect: how exactly does the wording of specific insurance policies apply to (now legal in some places under some circumstances) marijuana growing facilities?
A recent case out of the District of Colorado, The Green Earth Wellness Center, LLC v. Atain Specialty Insurance Company, Civil Action No. 13-cv-03452-MSK-NYW, deals with that question. In that case, Green Earth, a marijuana growing facility, alleged that a wildfire sent so much smoke and ash into Green Earth's ventilation system that it ended up damaging the marijuana plants inside. Green Earth therefore made a claim under its insurance policy with Atain for this damage.
This case contains an interesting discussion of how exactly marijuana plants are grown. The important takeaway is that Green Earth was making claims both for Green Earth's growing marijuana plants and for buds and flowers that had been harvested and were being prepared for sale. Green Earth argued that both the growing plants and the harvested buds and flowers were covered under the insurance policy's definition of "Stock." Atain maintained, however, that "Stock" did not apply to the growing plants, only to the buds and flowers that had already been harvested.
The insurance policy defined "stock" as "merchandise held in storage or for sale, raw materials and in-process or finished goods, including supplies used in their packing or shipping." Everyone agreed that the harvested buds and flowers qualified as "stock" so the debate centered entirely around whether the growing plants also qualified as "stock." There was no prior discussion between the parties as to this issue, so the court ended up relying heavily on dictionary definitions, especially of the term "raw materials." The court ended up concluding that this wasn't appropriate for summary judgment, because the court could see the definition as including growing plants or not.
However, the court then turned its attention to another part of the insurance policy that specifically excluded "growing crops." Green Earth argued that its growing marijuana plants weren't "growing crops" because crops are grown outside, not in indoor facilities. But, once again looking at dictionaries, the court concluded that the exact location was not important to the definition of "crop." "Crops" referred to things growing out of soil and did not differentiate between outdoor soil and indoor soil. Therefore, even if the growing marijuana plants could be "raw material" under the definition of "stock," they were specifically excluded from coverage as a "growing crop." And, indeed, in correspondence proposing the policy, Atain wrote that it would not cover "growing...plants," supporting the court's more expansive reading of "crops" as just being a type of plant, whether inside or outside.
Interestingly, Atain then tried to argue that, even though the harvested buds and flowers were technically "stock," they weren't covered because they were "contraband" and public policy was against insuring such forbidden goods. The court noted that the attitude of the federal government toward the legality of marijuana is "nuanced (and perhaps even erratic)" and focused on the fact that it was undisputed that Atain knew Green Earth was growing marijuana and agreed to insure it, so it wasn't fair to allow Atain to back out of that now.
April 6, 2016 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)
Tuesday, April 5, 2016
Hurricane Sandy and Art
Hurricane Sandy's flooding of the Red Hook section of Brooklyn damaged are in the Christie's warehouse located there, and provoked a rash of subrogation cases against Christie's, including AXA Art Insurance Corp. v. Christie's Fine Art Storage Services, Inc., 652862/13.
All of the cases revolved around the same core set of facts: As Hurricane Sandy was approaching, the Mayor of New York warned that Red Hook was likely to be flooded, and eventually ordered its evacuation. Christie's sent an e-mail to its clients stating it would "take extra precautions" in the face of "significant inclement weather," and that "may include" making sure the generators were working, providing extra security, and raising all of the artwork up off the floor. Allegedly Christie's did none of these things. Shortly after Sandy went through, Christie's sent another e-mail assuring its clients that the artwork was safe, but a few days later Christie's corrected itself, contacting some of its client to inform them that flooding had damaged some of the artwork.
Some insurance companies had to pay out millions of dollars in the wake of this news, and this insurance companies sought to collect the money from Christie's. AXA brought a typical case, that resulted in a typical failure, based on the fact that Christie's storage agreement contained a waiver of subrogation: Christie's clients were "responsible for arranging insurance cover" for the artwork stored at Christie's and "agree[d] to notify [the] insurance carrier/company of this agreement and arrange for them to waive any rights of subrogation against [Christie's] . . . with respect to any loss of or damage to the [artwork] while it remains in [Christie's] care, custody and control."
The court held that this subrogation waiver acted to bar AXA's claims for gross negligence, negligent misrepresentation, breach of bailment, and breach of contract. AXA tried to argue that this was in violation of U.C.C. Section 7-204, but the court disagreed: The U.C.C. prevented Christie's from exempting itself from all liability, but this subrogation waiver, according to the court, merely allocated the risk of liability to the insurance companies. AXA also argued that Christie's breached the storage agreement in its actions (apparently no artwork was supposed to be stored on the ground floor, which had been represented to the clients as being used for "intake" before the artwork was move to more secure storage), but the court said those breaches didn't affect the enforceability of the subrogation waiver.
Well, the appellate court has spoken, and claims like AXA's now live to be litigated another day. In the similar case XL Specialty Insurance Company v. Christie's Fine Art Storage Services, Inc., the appellate court held that the subrogation waiver did violate Article 7 of the U.C.C. and attempt to exempt Christie's from all liability, the lower court's characterization otherwise notwithstanding. Therefore, the fight will now shift to whether Christie's actions were reasonable.
April 5, 2016 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)
Monday, April 4, 2016
Universities, Graduate Students, Patents, and Policies
CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=39855 (Harvard Science Center)
It's a very common thing, to be provided with a "policy" as opposed to a "contract." A recent case out of the District of Massachusetts, Charest v. President and Fellows of Harvard College, Civil Action No. 13-11556-DPW, addresses that exact issue, and concludes, as you might expect, that what you call something isn't as important as how you behave.
Dr. Mark Charest was a chemistry graduate student at Harvard University. While he was there, he and his supervisor (also a defendant in this lawsuit) and other scientists developed a "novel and valuable method for creating synthetic tetracyclines," important for commercial antibiotics. Universities have lots of valuable things being created by their employees and students, so it's not surprising that Harvard had a policy in place for this sort of situation. Harvard had Dr. Charest, as a student, sign the Harvard University Participation Agreement, which contained a clause that Dr. Charest "ha[d] read and [] under[stood] and agree[d] to be bound by the terms of the 'Statement of Policy in Regard to Inventions, Patents, and Copyrights,'" referred to in this case as the IP Policy. A lot of things happen from that point on, but the important thing to know for purposes of this blog entry is that Dr. Charest maintained that Harvard had breached the IP Policy. Harvard, in response, maintained (among other things) that the IP Policy was not a contract.
Other than being called a "policy," you might think this an odd argument for Harvard to try to make, considering that having Dr. Charest sign an agreement to be bound by the IP Policy sounds pretty contract-y. A 1988 Massachusetts Supreme Judicial Court decision, Jackson v. Action for Boston Community Development, had held that an employer's personnel manual was not a contract, and so Harvard relied heavily on that precedent, trying to cast its IP Policy as similar to the personnel manual in that case.
Jackson established a number of factors for its decision, and, while some of those factors did weigh in favor of Harvard, others weighed in favor of Dr. Charest. For instance, Harvard maintained the ability to unilaterally modify the IP Policy and there were no negotiations between Harvard and Dr. Charest over the IP Policy, two factors Jackson said support a conclusion that the IP Policy does not impose contractual obligations. However, Harvard called special attention to the IP Policy and Dr. Charest's agreement to it, required Dr. Charest's signature acknowledging the IP Policy, and the IP Policy spoke in mandatory terms rather than suggestive terms, all of which made it seem more like a binding contract.
In the end, the court found that, as the Jackson precedent has developed, the really important thing is whether Dr. Charest understood himself to have to agree to the terms of the IP Policy in order to continue as a student researcher at Harvard, and that Harvard was likewise agreeing to be bound. The court concludes that yes, this was true. The IP Policy sounded as if it was being very clear about Harvard's obligations, because of its unambiguous language. Harvard itself consistently referenced the IP Policy as governing its actions when questioned by Dr. Charest and when communicating with its students. Therefore, Harvard could not pretend now that it had not been behaving as if it was bound by the terms of the IP Policy.
(Nevertheless, the court went on to dismiss most--but not all--of Dr. Charest's claims. The facts are too complicated to get into in the scope of this blog entry, but if you're interested in the relationship between research universities and their graduate students, it's an interesting read.)
UPDATE: This case has now settled. Dr. Charest released the following statement:
"Harvard University and I have settled our ongoing litigation regarding the allocation of royalties related to the license with Tetraphase Pharmaceuticals on mutually agreeable terms. In light of my claims and goals in bringing this litigation, I am very pleased to accept terms I view as equitable."
You can read more here.
(Thanks to Brian O'Reilly at www.oreillyip.com for the update!)
April 4, 2016 in Commentary, Recent Cases, Teaching, True Contracts, Web/Tech | Permalink | Comments (0)
Friday, April 1, 2016
Airlines and Terminal Change Information
Are airlines contractually bound to inform their passengers of a possible terminal change between the time of printout of one's boarding tickets and the flight departure under the duty of good faith? No, found a district court judge for the District of Columbia. The case is Naqvi v. Saudi Arabian Airlines, 14-cv-01314.
What's more, airlines are also not under any contractual good faith duty to give passengers water in the terminal or to ensure that terminal restrooms are sanitary.
The case was brought by a passenger who went to the terminal listed on his boarding passes that he had printed out the night before his early-morning flight. However, when he got to that terminal, he learned that his flight departed from another terminal five miles away (in Jeddah, Saudi Arabia). He rushed there by cab, but because of construction, was dropped off several hundred feet away, thus having to walk that distance with his luggage. The passenger made it to the boarding area lounge fifteen minutes before boarding started. As he had diabetes, he asked for a glass of water so that he could take his medication. He was told that no water was available, and instead went to the apparently very unhygienic bathrooms in the terminal. During the flight, he fel l sick because of the, for him, unusual level of physical activity. He subsequently sued in the United States (of course).
The court found that airlines have no obligation to provide notification of terminal changes, transportation or baggage handling between terminals in the event of a change, water or clean terminal bathrooms. Thus, since no contractual duties lay, the airline also had not breached any good faith violations thereof. Would it now, however, be a good idea for the airlines to do so anyway, via a text message or otherwise? It would seem so… and how hard would it really be for an airline to give their own passenger a glass of water since the boarding had not even started yet?
Better double-check those departure gates and terminals accurately in the future.
April 1, 2016 in Travel, True Contracts | Permalink | Comments (1)
Wednesday, March 30, 2016
Seventh Circuit Rejects Arbitration Clause in "Scrollable Window" Internet Contract
Have you ever been frustrated with seeming endless and practically unreadable scroll-down window that accompany many internet contracts? Or maybe you don't even think about them enough to be frustrated. The dozens of pages of scroll text typically end with a checkbox stating, "I have read and understood the foregoing agreement." All but the most unusually focused among users will check the box without having read the verbose digital boilerplate, and both sides surely recognize the untruth of the "read and understood" certification.
A court has recently refused to enforce an arbitration provision because it was buried at the bottom of the lengthy scroll able window. And the decision came from not just any court, but from the United States Court of Appeals for the Seventh Circuit--known for present purposes as the founder of the ProCD and Hill v. Gateway 2000 line of shrinkwrap arbitration-clause cases.
Over at the National Law Review, attorney Eric G. Pearson describes the facts of in Sgouros v. TransUnion Corp., No. 15-1371 (7th Cir. March 25, 2016), an opinion by Chief Judge Diane Wood applying Illinois law:
Sgouros purchased a "credit score" package from TransUnion, and he later brought suit, alleging that TransUnion had provided him with a number that was erroneously high and thus useless to him in his negotiations with a car dealer. TransUnion filed a motion to compel arbitration, which the district court denied.
The crux of the dispute concerned the webpage for "Step 2" in Sgouros's purchase, which asked him for an account username and password and for his credit-card information. See slip op. at 4. Below these fields were two bubbles to answer whether a user's home address was the same as the user's billing address ("yes" or "no"), and below that was a scrollable window in which only the first two-and-a-half lines of a "Service Agreement" were visible. Had he read to page 8 of the 10-page agreement, Sgouros would have found the arbitration clause. Below the scrollable window was a hyperlink to a printable version of the agreement and a bold-faced paragraph memorializing an "authorization" to obtain credit information. Rounding out the bottom of the page was a button labeled "I Accept & Continue to Step 3."
Judge Wood's opinion itself begins, for those of us who admire persuasive storytelling, with an excellent example of framing the story around the ultimate result:
Hoping to learn about his creditworthiness, Gary Sgouros purchased a "credit score" package from the defendant, TransUnion. Armed with the number TransUnion gave him, he went to a car dealership and tried to use it to negotiate a favorable loan. It turned out, however, that the score he had bought was useless: it was 100 points higher than the score pulled by the dealership.Believing that he had been duped into paying money for a worthless number, Sgouros filed this lawsuit against TransUnion. In it, he asserts that the defendant violated various state and federal consumer protection laws. Rather than responding on the merits, however, TransUnion countered with a motion to compel arbitration. It asserted that the website through which Sgouros purchased his product included (if one searched long enough) an agreement to arbitrate all disputes relating to the deal.
In what will surely be a much-used and much-cited analysis of the scroll-box layout, the Seventh Circuit described the assent-oriented defects of the Transunion website. As Pearson summarizes it:
- The arbitration clause was not visible in the window.
- The site did not call the user's attention to the arbitration provision in any other way.
- The site did not require the user to scroll to the bottom of the window or to first click on the scroll box.
- It was not clear that the purchase "was subject to any terms and conditions of sale."
- The term "Service Agreement" said nothing "about what the agreement regulated."
- The hyperlinked version of the agreement was labeled only "Printable Version"—not "Terms of Use" or "Purchase" or even "Service Agreement."
- The bold-faced paragraph was merely an authorization, and the button labeled "I Accept" actually misled the consumer to thinking that this was an acceptance of only the authorization's terms. "No reasonable person would think that hidden within that disclosure was also the message that the same click constituted acceptance of the Service Agreement."
All in all, an interesting turn of events from an important court on issues of clickwrap terms and arbitration.
March 30, 2016 in E-commerce, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (2)
Monday, March 28, 2016
Assent in Healthcare Contracts
Here, Stacey Lantagne reports on a very sad story of what can happen if health care customers fail to follow accurate procedure and, at bottom, dot all the I's and cross all the T's when contracting for health care services.
For me, this speaks to the broader issue of whether or not patients can truly be said to have given consent to all the procedures and professionals rendering services to patients. I think this is often not the case. As you know, Nancy Kim is an expert on this area in the electronic contracting context. She kindly alerted me to this story in the health care field. (Thanks for that.) The article describes the practice of "drive-by doctoring" whereby one doctor calls in another to render assistance although the need for this may be highly questionable. The NY Times article describes an instance in which one patient had meticulously researched his health care insurance coverage, yet got billed $117,000 by a doctor he did not know, had never met, and had not asked for. That doctor had apparently shown up during surgery to "help."
Of course, this is a method for doctors to make end runs around price controls. Other methods are increasing the number of things allegedly or actually performed for patients. Other questionable practices include the use of doctors or facilities that all of a sudden turn out to be "out of network" and thus cost patients much more money than if "in network." I personally had that experience a few years ago. I had to have minor surgery and checked my coverage meticulously. The doctor to perform the surgery was in network and everything was fine. She asked me to report to a certain building suite the morning of the surgery. All went well. That is, until I got the bill claiming that I had had the procedure performed by an "out of network" provider. This was because… the building in which the procedure was done by this same doctor was another one than the one where I had been examined! When I protested enough, the health care company agreed to "settle" in an amount favorable to me.
In these cases, patients typically have very little choice and bargaining power. In the emergency context, what are they going to do? There is obviously no time to shop around. You don't even know what procedures, doctors, etc., will be involved. The health care providers have all the information and all the power in those situations. However, in my opinion, that far from gives them a carte blanche to bill almost whatever they want to, as appears to be the case, increase their incomes in times when insurance companies and society in general is trying to curb spiraling health care costs.
In the non-emergency context, how much of a burden is it really realistic and fair to put on patients who are trying to find out the best price possible for a certain procedure, only to be blind-sighted afterwards? That, in my opinion, far exceeds fair contracting procedure and veers into fraudulent conduct. Certainly, such strategies go far beyond the regular contractual duty to perform in good faith.
Of course, part of this is what health care insurance is for. But even with good health care insurance, patients often end up with large out-of-pocket expenses as well. The frauds in this context are well known too: most health care providers blatantly offer two pricing scheme: one (higher) if they have to bill insurance companies, and a much lower price if they know up front to bill as a "cash price."
We have a long ways to come in this area still, sadly.
March 28, 2016 in Commentary, Current Affairs, Miscellaneous, Science, True Contracts | Permalink | Comments (1)
Sunday, March 27, 2016
Wording That Assignment Clause Correctly
One of the areas of contract law where the mere language alone frequently trips my students up is the area of assignment and delegation, largely because neither courts nor contracts are always exactly precise in what they mean in this area. It remains one of the areas that, say, a large insurance company can find it got the wording wrong, as happened in a recent case out of Florida, Bioscience West v. Gulfstream Property and Casualty Insurance, Case No. 2D14-3946.
A homeowner had bought a insurance policy from Gulfstream. The policy prohibited assignment "of this policy" without Gulfstream's written consent. The homeowner's house suffered water damage and she hired Bioscience to fix the damage. She assigned "any and all insurance rights, benefits, and proceeds pertaining to services provided by BIOSCIENCE WEST INC. under the above referenced policy to BIOSCIENCE WEST, INC." When Gulfstream subsequently denied the homeowner's insurance claim, Bioscience sued as the assignee of the homeowner's right to recover the insurance policy's benefit. Gulfstream responded by stating that the policy could not be assigned with Gulfstream's consent, which had never been given. The distract court agreed, found the homeowner's assignment to be improper, and entered summary judgment in Gulfstream's favor.
The appellate court disagreed. The appellate court said that the phrase "assignment of this policy" plainly referred to the entire policy. What the homeowner assigned, however, was something less than the entire policy, i.e., just a portion of the benefits. Therefore, under the "unambiguous" wording of the policy, the homeowner's actions were permissible without Gulfstream's consent; Gulfstream's consent was only required if she tried to assign the entire policy.
And, in fact, the court found this was consistent with the loss-payment portion of the policy, which provided that Gulfstream would pay the homeowner "unless some other person . . . is legally entitled to receive payment." The court said that proved that Gulfstream understood that the homeowner would be able to assign benefits under the policy. (Although arguably all this proved was that Gulfstream understood that the homeowner would be able to assign benefits under the policy with Gulfstream's consent.) At any rate, there was ample precedent in Florida's case law supporting the proposition that policyholders can assign post-loss claims without the consent of the insurer.
March 27, 2016 in Commentary, Recent Cases, True Contracts | Permalink | Comments (0)
Saturday, March 26, 2016
Things We Should Talk About When We Talk About Health Care
I just find this case so tragic and frustrating that I had to share with others, because that's just how I am, I like to spread those emotions around. But I think it's important, as we continue to debate how we do health care and health insurance in this country, to really think about the outcomes of these questions. And I have a nephew who was born premature and had to spend a little time in the NICU. My nephew is now a happy, energetic, clever five-year-old who we are very grateful for (even though we don't understand how five years have managed to pass, surely that's incorrect and he was just born yesterday, no?), but this case made me think of him and remember those first few scary days when you have a baby who you can't bring home with you. And how unforgiving bureaucracy can be in the face of your mere human emotions.
Kurma v. Starmark, Inc., No. 12-11810-DPW, a recent case out of the District of Massachusetts, introduces us to the Kurmas. Their son was born about two months premature and was immediately hospitalized after birth and remained in the intensive care unit for over two months. His hospital bills totaled more than $667,000. It seems as if it was a happy ending for the baby boy and that he eventually went home with his parents, because the case doesn't tell us otherwise, so that at least seems like good news for the Kurmas.
The bad news was that they failed to comply perfectly with all of the formalities of their health insurance policy, and for this reason the court found it had no choice but to find that the baby boy was not covered by his father's health insurance plan and therefore the Kurmas are responsible for the $667,000 hospital bill.
Mr. Kurma had been employed by First Tek since 2006. First Tek enrolled in the Bluesoft Group Health Benefit Plan on July 1, 2010. Mr. Kurma and his family joined in the plan as soon as it became available. His wife at the time was already pregnant, and her pregnancy care was covered under the plan. Their son was born on October 7, 2010, three months after they joined the Bluesoft plan.
What makes this case so tragic to me is that it wasn't as if Mr. Kurma did nothing to inform his health insurance that his baby son had been born. He did, in fact. He called his health insurance's claims processor on October 14, 2010, to inform him that his son had been born the previous week. Everybody agreed that this was timely notice to the health insurance company of the baby's birth. A week later, on October 21, Mr. Kurma received a letter from an affiliate of his health insurance company referring to "Baby Boy" and requesting medical information to determine the necessity of the baby's ongoing treatment.
Mr. Kurma had several more conversations with his health insurance company during the month of October. The parties disputed what was said in those conversations, although they agreed that Mr. Kurma wished to add his newborn son to the health insurance plan. There was disagreement as to whether or not Mr. Kurma was told that he needed to provide his HR department at work with written notice of his son's birth in order to add him to the policy. At any rate, on November 8, 2010 (more than 30 days after the baby's birth, which was the time limit Mr. Kurma had under the policy), the health insurance company sent Mr. Kurma a "Certificate of Group Coverage" that "is evidence of your coverage under this plan." The new baby was listed as the individual to whom the coverage applied and the "Date coverage began" was given as October 7, 2010, the date of the baby's birth. To be honest, I would at that point, if I were Mr. Kurma, probably have considered the baby to have been covered, as that piece of paper would have seemed self-evident to me as "evidence of...coverage." However, this piece of paper contained a trick: It claimed the "Date coverage ended" as October 6, 2010, the date before the baby's birth. According to the health insurance company, this should have been a red flag to Mr. Kurma, as that was the health insurance company's way of indicating that it had refused coverage on the baby. I'm not entirely sure why the way to do this wouldn't have been to send a letter saying "We are not covering the baby," rather than sending some weird time-travel-y message like this. It would be a good policy for all of us to just say what we mean in communications like this, don't you think? This paper, far from raising any red flag that Mr. Kurma needed to do anything further, seemed to reassure Mr. Kurma that he had done everything he needed to do.
And, even more confusingly, not even the insurance company itself, internally, seemed to know whether or not it thought the baby was covered. On November 4, an employee noted that the baby was automatically covered for the first month of his life and then needed to be formally added to the policy. A second note on November 5 corrected that to explain that the baby needed to be immediately enrolled in order to be covered. But it seems to me that if not even the health insurance company's own employees can figure out whether or not the baby was covered, it seems ridiculous to assume that a harried new father, with a baby in intensive care and a five-year-old at home to worry about, was supposed to be able to figure it out.
On November 29, 2010, Mr. Kurma had a conversation with his health insurance company in which he stated that he had added his new son to the plan. That night he e-mailed HR at First Tek to ask them to add the baby to the plan. That e-mail was the first written contact Mr. Kurma had had with HR. It came, as you can see, more than 30 days after the baby's birth. Which was a violation of the policy, which provided, "You notify Us and the Claims Processor of the birth . . . within 30 days," with "Us" defined as Mr. Kurma's employer, First Tek. Mr. Kurma had only informed the claims processor within 30 days.
In December 2010, Mr. Kurma was told for the first time that the health insurance company was denying coverage for his new baby. Confused, Mr. Kurma inquired as to why and was told it was his failure to return the written enrollment forms to his HR department within 30 days of the baby's birth. Mr. Kurma called his health insurance company to complain; they were unmoved.
Mr. Kurma's employer, however, was moved by Mr. Kurma's situation. To be honest, it seems as if First Tek knew all along that Mr. Kurma's son had been born and was in intensive care, which makes sense to me, as it is the kind of thing that employers tend to know, if you're taking time off and such. First Tek's CEO actually contacted the health insurance company on behalf of Mr. Kurma, asking for leniency: "[Mr. Kurma] has a prematurely born child who is still in hospital and in deep sorrow and was not in a right frame of mind. Is there anything you can do to make the carrier make an exception?" The carrier--who nobody disputed was well aware of the baby's existence and Mr. Kurma's desire to add him to the plan--refused to make such an exception, insisting that it could not because First Tek (the company requesting leniency) had not been properly notified. Note that that was the only basis for the health insurance company's denial, as stated in the letter it sent Mr. Kurma: "The plan required that Mr. Kurma notify [the insurance company] AND his employer, within 30 days after the infant's date of birth. [The insurance company] received notification within the required time frame, but First Tek did not." No matter, apparently, that First Tek itself requested that its notice requirement be waived and at any right apparently believed itself to have been properly notified.
Now the insurance plan in this case contained language that added further confusion to what was going on here: It gave First Tek "full, exclusive and discretionary authority to determine all questions arising in connection with this Contract including its interpretation." Under this clause, one might think that, if First Tek considered itself to have been validly notified, then it was. Not so fast, though. The insurance plan also contained language that the insurance company "has full, discretionary and final authority for construing the terms of the plan and for making final determinations as to appeals of benefit claim determinations . . . ." So whose interpretation, First Tek's or the insurance company's, should win here, when they both have some sort of "full" and "discretionary authority"?
The court concluded that this language meant that First Tek had authority over contract interpretation, but the insurance company had authority over claim determinations under the contract. Therefore, First Tek was correct in its assertion that the baby was enrolled, because that lay within First Tek's discretion. However, First Tek could not contradict the insurance company's determination, even accepting that the baby was enrolled, that the benefits were denied. I admit I'm so confused by this determination, I read this paragraph of the decision over several times, and I'm fighting a cold myself at the moment (and worrying about what health insurance coverage I'm going to mess up should I need to see a doctor over this illness!), so if I'm reading this wrong, please let me know, but this seems contradictory. What's the point of giving First Tek "ultimate" authority over who's enrolled under the policy if the health insurance company has "ultimate" authority to ignore First Tek's "ultimate" authority and deny benefits because it doesn't think people are enrolled? The court seems to think that this is a system that makes sense, but it mostly seems to me that it's just a fancy way of obscuring the fact that First Tek really had no authority here. Which might be fine as just a straightforward matter, but this is anything but straightforward: The contract manages to strip First Tek of authority by saying the opposite, much like the weird denial of coverage the insurance company sent that actually read that it was "evidence . . . of coverage." This is like being Alice in Looking-Glass Land, frankly.
At any rate, as you could probably tell was coming, Mr. Kurma loses this case. What's interesting is that he presents no claim that he ever informed First Tek in any way of the birth of his son within the relevant 30-day period. I find this difficult to believe, personally, and I don't know how there couldn't have been something he could have used to argue that he gave First Tek some notice, especially given the evidence that even First Tek's CEO tried to get coverage for the baby. But the court says there was no dispute that there had been no notice "of any kind," not even oral, and so Mr. Kurma failed under the terms of the policy.
Mr. Kurma argued that First Tek clearly wished the baby to be enrolled and tried to intercede with the insurance company on Mr. Kurma's behalf. The court's reaction to this is unimpressed: the plan says what the plan says, and First Tek's desire not to follow the plan doesn't mean anything. (Of course, presumably First Tek didn't have a whole lot of opportunity to negotiate the terms of the plan in the first place.) Mr. Kurma also tries to argue estoppel, which fails because, again, the words of the plan were clear, and Mr. Kurma failed to follow them, so he can't argue estoppel. Likewise, there was no duty on the insurance company's part to explain to Mr. Kurma what steps he had to take to insure his son, and there was no bad faith on the insurance company's part in failing to do so.
So, the end result is that the Kurma family is now over $667,000 in debt, as a result of having sought to save their son's life. This case just kills me. I know what the plan said, but I am a trained lawyer who found the words being said to Mr. Kurma confusing; I am bewildered by how it could be reasonable to expect Mr. Kurma to wade through all of this during what was doubtless the most stressful and emotionally exhausting time of his life. Think of how challenging you find it to deal with bureaucracy under ideal circumstances; imagine having to do it while your tiny infant son is fighting for his life in intensive care. And having to do it under circumstances where you're given dense pages of legalese, no assistance to walk through that legalese, and documents that say one thing while meaning the opposite.
I know that insurance companies have a lot to deal with, too. And I know this insurance company didn't want to pay $667,000 in medical bills. I know this insurance company wanted to make sure it makes people jump through a few hoops first to make sure they really deserve the health care. But I just find this outcome in this case tragically absurd in a way that makes me despair for how we're dealing with health care in this country: Nobody disputed that the health insurance company was well aware Mr. Kurma's wife was pregnant and would presumably soon be having a child; nobody disputed that the health insurance company was well aware Mr. Kurma's son had been born and was hospitalized; nobody disputed that the health insurance company indicated to Mr. Kurma that it was evaluating the necessity of his son's medical treatment; nobody disputed that the health insurance company even sent "evidence of . . . coverage" to Mr. Kurma. And still the health insurance company didn't have to cover the baby, because of one missed hoop that the company it pertained to sought to waive entirely.
Maybe your view is that Mr. Kurma should have been more on top of things. But I just think this seems like an incredibly harsh case.
Peter Gulia, an adjunct professor at Temple University Beasley School of Law, sent me this as a follow-up and I add it to the text here with his permission because I think it's a valuable contribution.
Your great essay on Kurma v. Starmark, Inc. paints a striking story. But let me give you a way to reconsider what happened.
The health plan is a "self-funded" health plan that is not health insurance. The employer pays the claims from the employer's assets. (The employer likely has a stop-loss insurance contract that pays the employer, not the plan or any participant, if claims exceed specified measures.)
Starmark is not an insurer; it provides services to the employer, which also is the health plan's sponsor, administrator, and named fiduciary.
In any moment during Mr. Kurma's difficulties, the employer, acting as the plan's administrator, could have instructed the processor to treat Kurma's newborn as regularly enrolled. Doing so would make the employer responsible to pay the mother's and newborn's medical expenses.
(Even if the employer asked: "Is there anything [the processor] can do to make the carrier make an exception?", this likely referred to trying to persuade the stop-loss insurer to provide more coverage than its contract promised.)
If one analyzes this case under the common law of contracts, one might classify it as a duty-to-read case. The reported facts suggest the participant did not read the plan, and also did not read, at least not carefully, its summary plan description.
That Mr. Kurma suffered a loss because he didn't sufficiently understand his employee-benefit plan's conditions is harsh. But it's not because Starmark failed to perform its service agreement. And it's not because Starmark sought to avoid an expense it never would bear.
March 26, 2016 in Commentary, Legislation, Recent Cases, True Contracts | Permalink | Comments (1)
Sunday, March 20, 2016
Browsewrap Unenforceable and Motion to Compel Arbitration Denied
A recent California appellate court case, Long v. Provide Commerce, Inc., found that a browsewrap agreement containing an arbitration clause failed to provide notice sufficient for assent. The case is likely to be significant in shaping wrap contract doctrine because it is the first California appellate court decision which addresses "what sort of website design elements would be necessary or sufficient to deem a browsewrap agreement valid in the absence of actual notice."
The plaintiff, Brett Long, purchased a floral arrangement on the ProFlowers.com website. The arrangement he purchased was advertised as a "completed assembly product" but he alleged that it was delivered as a "do-it yourself kit" which required assembly. He filed a class action lawsuit on behalf of California consumers. Provide, the owner and operator of the ProFlowers.com website, moved to compel arbitration pursuant to its Terms of Use which contained an arbitration clause.
The Terms of Use were accessible via a hyperlink titled TERMS OF USE at the bottom of each webpage. The hyperlink was in light green typeface on a lime green background along with other hyperlinks in the same format. In order to complete his order, Long had to input information and click through buttons which were displayed in a white box against the website's lime green background. At the bottom of the box was the following notice, "Your order is safe and secure." Below the white box was a dark green bar with a hyperlink stating SITE FEEDBACK in light green typeface. Below the dark green bar, at the bottom of each "checkout flow" page were two hyperlinks, PRIVACY POLICY and TERMS OF USE in the same light green typeface as the website's lime green background.
After placing the order, Provide sent Long an email order confirmation. The email contained a dark green bar with several hyperlinks to product offerings such as "Birthday" or "Anniversary." Next, the email displayed a light green bar thanking the customer for his order and followed by order summary details and other related information. Following the order details were two banner advertisements and a notification regarding account management services with accompanying hyperlinks. Following that, another dark green bar stated "Our Family of Brands" and listed logos for Proflowers and 5 other companies. Next, the email contained customer service information in small grey typeset and then, in the same grey typeset, two hyperlinks titled "Privacy Policy" and "Terms".
The California appellate court found that the Terms of Use hyperlinks were not sufficiently conspicuous to put a "reasonably prudent Internet consumer" on inquiry notice and that the Plaintiff did not manifest his unambiguous assent to be bound. The court noted that just because the Terms of Use hyperlinks were visible without scrolling was insufficient to establish an enforceable browsewrap. It referred to the "bright line rule" set forth in Nguyen v. Barnes & Noble Inc.: "(W)here a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on- without more – is insufficient to give rise to constructive notice." The court also noted that "to establish the enforceability of a browsewrap agreement, a textual notice should be required" to show continued use constitutes assent. In other words, a conspicuous hyperlink alone does not constitute reasonable notice.
This case is another in a line of cases coming out of California and the Ninth Circuit which is making a long overdue correction to contract law doctrine -- doctrine which veered dangerously off course with ProCD and its ilk. As I've previously noted, the law in this area is still working itself out, and my guess is that other jurisdictions will start reevaluating the meaning of "assent" when it comes to wrap contracts (and start following the Ninth Circuit's more reasonable understanding of reasonableness).
(Disclosure and fun fact: I am the recipient of a chair funded from a class action settlement involving ProFlowers).
March 20, 2016 in E-commerce, Recent Cases, True Contracts, Web/Tech | Permalink | Comments (0)
Saturday, March 19, 2016
When Minutes Really Matter
Every time I teach the mailbox rule, I'm amazed by how different the world was not so long ago. Imagine having to wait days to receive documents, instead of seconds via e-mail. When I was practicing, if documents didn't come through to me instantaneously, I found myself going through my spam, annoyed at the delay and the time I was losing in not having the documents in hand immediately. I think all the time that the practice of law must have been very different.
A recent case out of the District of Maryland, CMFG Life Insurance Co. v. Schell, Case No. GJH-13-3032, made me think again about how important timing can be. In that case, a delay in sending a document that amounted to only a couple of hours contributed to a sizable financial loss.
Sandra Lee had an annuity with CMFG that listed as its beneficiaries her husband William Schell and her three children. On December 14, 2012, between 11 and 11:30 am, Schell delivered a Change of Beneficiary form to the office of Lee's financial advisor, Nelson Turner. The form, signed by Schell as attorney-in-fact for Lee pursuant to a power of attorney that had been executed by Lee on December 6, named Schell as the sole beneficiary of the annuity, removing Lee's three children. Turner faxed the form to CMFG; the fax transmission stated CMFG received it at 2:01 pm.
At 1:10 pm, in between the time of Schell leaving the form with Turner and the time of CMFG receiving the faxed form, Lee died. Therefore, CMFG rejected the beneficiary change because it had not received the form prior to Lee's death, as required by the contract. Schell objected to CMFG's payment of the benefits to Lee's children, arguing that he was the only beneficiary of the annuity, and this lawsuit resulted.
Section 4.2 of the annuity stated that the beneficiary could be changed "by written request any time while the annuitant is alive." Both parties agreed that this language was clear that any beneficiary change had to take place while Lee was alive. But Schell said that the contract said the beneficiary change would be effective on the date signed, and he signed it while Lee was alive. The court, however, noted that this reading of the contract ignored the "by written request" language. The annuity actually contained a definition of "written request" that said it was a "written notice . . . received in our home office." The court noted that, although Schell might have signed the beneficiary form while Lee was still alive, it was not received by CMFG, as required by the contract, until after Lee had died. Therefore, it was not effective under the terms of the contract requiring it to be received while Lee was alive.
You might be thinking that, if not for Turner's delay in faxing the form, Schell would have been tens of thousands of dollars richer at this moment. However, the court went on to rule that the change of beneficiary form would not have been effective in any event because Schell could not breach his fiduciary duty to Lee and use his power of attorney to achieve his own personal gain.
At any rate, though, if you do have a properly executed change of beneficiary form for an annuity, it is in your best interest not to delay sending it in and making it effective.
March 19, 2016 in Commentary, Recent Cases, True Contracts | Permalink | Comments (2)
Thursday, March 17, 2016
Scam Artists in the Back Alleys of Internet Vending
As more and more retail shopping seems to be shifting from brick-and-mortar stores to both well-known and perhaps more shady online retailers, the need to read the online terms and conditions very carefully is obvious. As we have discussed here before, this is hard enough to do when these are phrased in legally and linguistically challenging ways. But what to do when a company seemingly tries to come across in a lighthearted and funny way, but is still dead serious about the underlying legal messages? Some people have found out that this can present almost insurmountable obstacles.
Take, for example, outdoor clothing and gear provider 123Mountain in Colorado. (H/t to Professor Miriam Cherry of the Saint Louis University Law School for bringing this story to the attention of the Contracts Listserv.) Its linguistically very poorly drafted terms and conditions contains statements such as "[w]e love all of our Users, especially those that buy lots of stuff from us," "[y]ou understand that 123mountain is good, but not perfect. Therefore, we cannot and do not guarantee that the Site will be free of [sic] infection from viruses or other mean computer stuff…," "[y]ou acknowledge and agree that there are mean people in the internet world…," "[y]ou are not allowed to resale [sic] our product as commercial activity 9 mean [sic] your Canada Goose, Nobis, Moose knuckle and Parajumper is for you not to resale at your Russian cousin) [sic]," and "[a]fter all, nobody, except my friend's cat Misse is perfect, and even she sometimes has an accident … 123mountain shall have the right to refuse or cancel any orders placed for that product(s)[sic] listed at the incorrect price. Sorry." Or how about this one: " We will accept pre-orders for Canada Goose, Nobis, Moose knuckle and Parajumper. Please keep in mind that it can take up to 24 months to fulfill a preorder for Canada Goose, Nobis, Moose knuckle and Parajumper." See the complete terms and conditions here.
Two years for an item of clothing? I would personally not be sufficiently interested in waiting two years for any kind of clothing, and certainly not a mere sports jacket. Many other products are available that will do just fine, thank you.
As reported in detail here, a 123Mountain customer came to the same conclusion the hard way himself. In early November 2015, he placed an order for a jacket with "two-day shipping." When he still had not received the jacket a week later, he contacted the company and was told that he could expect the jacket within slightly less than three weeks. When inquiring about the impression that he had gotten from the website that the item was in stock, he was told that the item was "available for order" rather than actually "in stock." A full month later, he was told that the item would still ship no later than at the end of November …. 2017. Yes, you read that right: two years later. When not paying for the invoiced amount, 123Mountain sent a collection agent after the customer!
For good reason, it seems, 123Mountain only has one star on Yelp.com, the lowest possible ranking. The Lakewood, Colorado, Police Department, has apparently received nine other complaints against 123Mountain since 2013, but "the knotty terms and conditions that customers agreed to when making purchases online made it impossible to charge the couple with a crime."
So, not only can some companies often get away with contractual arguments for years, but prosecutors also find it "impossible" to charge companies with crimes, even in cases such as the above. That's a very sad state of affairs for online contracting, business ethics, and customer service. Greed and selfishness seem to be the order of the day in many cases.
Thankfully, major credit card companies seem more willing than before to help their customers in cases like this. The "fault" is not as readily placed on the buyer as before, at least judging from anecdotal evidence and personal experience. This, of course, does not guarantee an ultimately positive outcome for defrauded customers. Online review sites such as Yelp are also somewhat helpful in this context, but in times when online review websites are also known to suffer from their own credibility problems due to allegedly fake reviews, the situation is factually and legally troublesome for online buyers. This is even more so in times when people often resort to buying even such things as cat litter and kitchen towels online to, among other things, save the hassle of carrying bulky items home themselves. Online shopping is here to stay. Amazon has even announced plans to deliver packages by drones minutes after ordering. It seems that the law needs to rapidly develop to address the many legal issues that have arisen and continue to arise in the online contracting context.
Ideas on how to do so? Comment below!
March 17, 2016 in E-commerce, True Contracts, Web/Tech | Permalink | Comments (0)


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Read the July issue of Petfood Industry!
July 2016
The July 2016 issue of Petfood Industry covers a Canadian specialty pet food company with a "quality first, pets first" philosophy behind all of its products.
Natura Pet Products Inc. offers its California Natural treat HealthBars. The treats are available in the Chicken Meal & Rice formula and Salmon formula. California Natural treats are formulated to be easy to digest and nutrient rich, according to the company. The treats contain fatty acids such as linoleic acid, EPA and DHA and added essential nutrients like zinc, vitamin A and B vitamins for healthy skin and stomach.


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SOURCE: Daily Mail (UK)
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Shakespeare muse was prostituteBreaking News
The Dark Lady who inspired some of Shakespeare's romantic sonnets may have had a rather unladylike profession.
An expert on the Bard suggests she may have been a notorious prostitute called 'Lucy Negro' or 'Black Luce' who ran a brothel in Clerkenwell, London.
Shakespeare scholar Dr Duncan Salkeld said he had unearthed documents that indicate she is 'the foremost candidate for the dubious role of the Dark Lady'.
Many of the sonnets 127 to 152 are addressed to an unidentified woman with whom Shakespare imagines having an affair....
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Although the rally in stocks has drawn in fresh money, last year's big slowdown in trading is likely to lead to some further thinning of the online broker herd in 2013. Some of that will come through a handful of takeovers, and others will occur via straightforward closures, according to brokerage executives and analysts.
Because of continued near-zero interest rates and cost increases in clearing fees and data from exchanges, "there will have to be consolidation this year. It may be less in the form of mergers, though, and more likely where one firm just exits the business and sells its accounts to another firm," says George Ruhana, CEO of OptionsHouse. As the head of one big firm puts it, "there is excess system and people capacity."
TD Ameritrade AMTD -1.075268817204301% TD Ameritrade Holding Corp. U.S.: Nasdaq USD30.36 -0.33 -1.075268817204301% /Date(1469826000468-0500)/ Volume (Delayed 15m) : 2164029 AFTER HOURS USD30.36 % Volume (Delayed 15m) : 57661 P/E Ratio 18.74074074074074 Market Cap 16056736121.1414 Dividend Yield 2.2397891963109355% Rev. per Employee 584534 More quote details and news » (ticker: AMTD) Senior Vice President Steve Quirk adds, "The industry is probably in the seventh or eighth inning of the acquisition game." He says there are still some opportunities, and that the smart companies are evaluating and watching for the right strategic/financial balance.
Hedge fund Citadel's recent announcement that it was shedding its 9.6% stake in E*Trade is a sign the market for online brokers is pretty limited, according to Richard Repetto of equity-research firm Sandler O'Neill. Citadel has been pushing E*Trade ETFC -0.19896538002387584% E*TRADE Financial Corp. U.S.: Nasdaq USD25.08 -0.05 -0.19896538002387584% /Date(1469826000301-0500)/ Volume (Delayed 15m) : 2802505 AFTER HOURS USD25.0904 0.0104 0.04146730462519936% Volume (Delayed 15m) : 180050 P/E Ratio 32.15384615384615 Market Cap 6863844445.67276 Dividend Yield N/A Rev. per Employee 459412 More quote details and news » (ETFC) to sell itself and apparently gave up on its quest, he noted. E*Trade hasn't commented on Citadel's decision to sell.
The only relatively large firm to disappear in 2012 was Zecco, which was folded into TradeKing via a August merger.
Fewer new brokers are expected to jump in to restock the ranks. CEO Neville Golvala of ChoiceTrade says, "It is unlikely that a new market entrant can be successful in a crowded field." Fidelity's recently hired executive vice president of retail brokerage, Ram Subramaniam, notes, "The number of new entrants into the brokerage space has certainly slowed as it has become more difficult and expensive to introduce a new trading platform that could compete with what is currently available."
Still, a number of intrepid newcomers have braved the environment over the last 18 months: Ditto Trade, Motif Investing, Kapitall Investing and OptionShop, all of which Barron's has covered. These entrants occupy small niches, though, and they cater to a specific investment style or process. Tom Heffernan, vice president of marketing at TradingBlock, says, "We figure they're just short-term plays looking to prove their model and then try to cash out if the big boys find what they're doing has value, and choose to acquire or replicate."
Alok Prasad, head of Merrill Edge, believes there's room for a broker that provides integrated services, including self-directed, advisory, and banking. "We don't expect to see a lot of new entrants in the traditional direct brokerage model, but rather the emergence of interesting new providers in line with these themes, including analytics and social collaborative consumption," says Prasad. Not surprisingly, Merrill Edge is such a broker.
Analyst Repetto says trading volumes in the second half of 2012 were "just miserable." The dollar volume for stocks traded on the New York Stock Exchange declined 25.5% from 2011 to 2012; the fall was 32.2% when comparing just the latter half of each year. "The numbers have modestly improved since the back half of 2012," says Repetto. However, he isn't anticipating a big uptick for the first quarter.
MINI-OPTIONS ARE IN PLAY with investors. Launched on March 18, these options in five names ("Apple in Small Bites," March 4), are designed to give individuals a chance to buy options on some popular, high-priced stocks and exchange-traded funds in more-affordable batches of 10 shares, rather than 100.
According to optionMonster analytics, mini options accounted for 0.2% of total options trading on March 20 and 21, with the SPDR S&P 500 SPY 0.16146145684365917% SPDR S&P 500 ETF Trust U.S.: NYSE Arca 217.12 0.35 0.16146145684365917% /Date(1469826000208-0500)/ Volume (Delayed 15m) : 70117063 AFTER HOURS 217.41 0.29 0.13356669123065587% Volume (Delayed 15m) : 9402373 P/E Ratio N/A Market Cap N/A Dividend Yield 1.9868128224023582% Rev. per Employee N/A More quote details and news » (SPY) representing nearly two-thirds of the mini volume. Apple AAPL -0.12459267778416715% Apple Inc. U.S.: Nasdaq USD104.21 -0.13 -0.12459267778416715% /Date(1469826000272-0500)/ Volume (Delayed 15m) : 26765342 AFTER HOURS USD104.25 0.04 0.03838403224258708% Volume (Delayed 15m) : 968346 P/E Ratio 12.174065420560748 Market Cap 561529626663.413 Dividend Yield 2.1878898378274636% Rev. per Employee 1990500 More quote details and news » (AAPL) comprised about a quarter, while trading in the other three symbols– SPDR Gold Trust GLD 1.033996553344822% SPDR Gold Trust U.S.: NYSE Arca 128.98 1.32 1.033996553344822% /Date(1469826000078-0500)/ Volume (Delayed 15m) : 12888860 AFTER HOURS 128.92 -0.06 -0.04651884013025275% Volume (Delayed 15m) : 819334 P/E Ratio N/A Market Cap N/A Dividend Yield N/A Rev. per Employee N/A More quote details and news » (GLD), Google (GOOG), and Amazon AMZN 0.8237998432122879% Amazon.com Inc. U.S.: Nasdaq USD758.81 6.2 0.8237998432122879% /Date(1469826000284-0500)/ Volume (Delayed 15m) : 6662071 AFTER HOURS USD758.06 -0.75 -0.09883897154755472% Volume (Delayed 15m) : 114979 P/E Ratio 188.75870646766168 Market Cap 359732094672.976 Dividend Yield N/A Rev. per Employee 522691 More quote details and news » (AMZN)—was insignificant. This product is not available at all brokers yet; we expect to see trading pick up as mini options are made more broadly available. From all reports, brokers are charging the same fees to trade minis as they do for standard options contracts.
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Oyster card crash leaves cards corrupted
A server crash at the weekend may have corrupted thousands of commuter's Oyster cards
Thousands of London commuters will have to replace their Oyster cards after a server crash left them permanently corrupted.
The payment infrastructure went down for over five hours on Saturday morning, forcing drivers to allow people free entry to tube trains and buses.
The disruption was so severe because of the high level of reliance on the RFID card system. Over 17 million have been issued since their launch in 2003, and they now account for over 80% of journeys on the network.
However, some drivers unaware of the problem continued to allow users to swipe their cards during the downtime, potentially corrupting thousands of people's cards.
"A number of cards used... may not be working as a result of yesterday's technical problem. Customers who topped up their cards at Oyster Ticket Stops during the day may also have been affected," says a statement from TfL yesterday, which advises that replacement cards are available for those affected from London Underground stations.
Last month it emerged that researchers from Radboud University in Holland had hacked the Oyster card system to gain a day's free travel on the network.
The group announced that it would be publishing details of the vulnerability at a security conference in October, but have now been sued by the makers of the chip to prevent this.
Yesterday the blog BoingBoing reported that the paper had nonetheless been posted on to Wikileaks, but the post today links only to a blank article on the site.


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Was holding onto it for a friend who is waiting for his check from his insurance after wrecking his car.. Anyway back fs
3000 firm as hell
Type: Posts; User: sec914
Was holding onto it for a friend who is waiting for his check from his insurance after wrecking his car.. Anyway back fs
3000 firm as hell
Sorry computer took a **** so.. If you want pics of this unicorn you just have to text me unless someone can show me how to post pics off my iPhone.
Nothing? I figured this was cheap.
Started this project with grand intentions.. Been driving it for 6 month daily. Awesome car.
Purchased car with bad transmission and engine knock.... Installed mk4 vr6 12v engine.(mk4 cams are...
Bumps for the last ****
Bump some parts sold again prices are obo
All pms returned lets get this **** sold!
Don't know for sure but they look brand new. Purchased car with them on it. Coilovers if needed I can swap parts on your car I have a lift.
R32 brushed dash trim 150
All parts are obo
337 dash $200
Black cloth square bolster seats front and rear $350
337 pedals 100
R32 brushed trim 200
20th door cards and center console 150
Doors 100 each
Fenders 50 each...
928 s4 Wheels aka 7 slots. These were stripped and polished. Now have a coat of gloss black on them. Much easier to remove than the factory hard as nails coating. If you so wish to polish again. The...
Put the g60/vr6 setup in my brothers 1.8t car. No complaints whatsoever. No issues. Felt the same as a 1.8t setup besides it grabbed better and revved easier.
For the fuel pump remove it. reverse polarity for 2-3 seconds. Then back and forth a few times. I've freed the last 4 pumps I've also put about a tea spoon of marvel mistery oil in it and let it sit...
34 and just picked up another mk4 wagon. picked up a 24v 6 speed swap car for it. Project will be started in a week when I finish my auto to manual vr6 toranado Passat wagon swap. Married since 00 to...
There is a set on Craigslist
Ecology is 1/2 off tomorrow


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It will be difficult…it will often feel like you're moving backwards.
Do not give up.
In fact, give in. Give in to those feelings. Feel everything you're feeling so that it can leave you. That is the goal.
Brave faces and stiff upper lips will only get you so far, and then, just like a dieter with the strongest of wills, they will break and they will give their body what it needs.
You need to do the same.
What your body needs is to grieve. It needs to be allowed to feel its pain in its entire entirety; do not shut it down.
There may be times when your pain has to take a back seat…I understand this.
Sometimes the job interview, final exam or best-friend's wedding is just unfortunately planned and you need to rise to the occasion.
I understand and support this, but only if this is the exception, not the norm, and you allow yourself to surrender to your emotions during your necessary process of healing and self-discovery.
Be patient with you, be kind.
Treat yourself like someone you truly love whose pain breaks your heart. Feel the hurt, write it in a journal. Let it go. Do not rethink all of the mistakes you made—all the mistakes he made—it is over.
Do not remember only the good. Cherish it for what it was, but leave it in the past.
Watch your breathing; learn to return your focus to your body, your heart.
Learn to sit with yourself; you will be okay.
You may always love him, but you will learn to love yourself more.
Just. Give it. Time.
Time is your new lover. Time will let you be as sad as you want. Time will let you pretend to be (sometimes actually be) okay. And time will let you come home, wash the make-up off of your face, and admit to yourself that you're not.
Time will not say, "I told you so."
Time will sit with you.
Eventually, you'll need less of it.
Eventually, you'll feel whole again—but for now, know that you are whole.
This pain is a part of you, a part of the whole you.
Go gently. Be kind. Breathe in and breathe out. This too shall pass.
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The 4 Stages of a Good Divorce. A Letter to my Children: You do not come from a Broken Home. These People are Rare Gems—Keep Them, Fight for Them, don't Give Up on Them. Mom, can I Call her Mom, Too? Jon Stewart makes first appearance since retiring—"it's not your country." Waylon shares 10 transformingly beautiful Quotes about Love. My Marriage had to End—for my Life to Begin. Why your Yoga Goals are (Probably) Irrelevant, if not Downright Dangerous. The Day I Stopped Running. Dear Woman in the White Car at Margaritas Mexican Grill in West Memphis, Arkansas on July 15th, 2012.


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