In honor of the New Year, I am posting an article from The Hollywood Reporter. This is a list of the most outrageous celebrity lawsuits of 2011. Some of my favorites:
An artist’s promises on Twitter to pay $1mm for returning his missing laptop. A stranger returns the laptop. Does the artist have to pay the stranger $1mm? In Pennsylvania, probably yes.
Artist Ryan Leslie lost his laptop while on tour in Germany. This is the tweet : “I’m absolutely continuing my Euro tour plus raised the reward for my intellectual property to $1mm. Click to watch: http://on.fb.me/bCBnrM””. Does this 160-character statement make a contract? Would a reasonable person read this tweet, and believe all she has to do is find the laptop and she will become a millionaire? Well, Armin Augstein has filed a lawsuit in New York claiming that Leslie’s tweet is a binding contract.
While New York law will determine the lawsuit’s outcome, let’s imagine what would happen if Augstein sued Leslie in Pennsylvania. The contract in dispute is called a unilateral contract; it means that Leslie made a promise and all that is requried to convert this promise into a contract is that the other party must merely act—or in this case—find the laptop. Ordinarily, a contract requries two parties to commuincate with each other. (this is called a bilateral contract). If this situation were a bilateral contract, Leslie would make an offer by tweet; someone would accept his offer by tweet, and a contract is born.
However, a unilateral contract is different. The person accepting the offer does not have to communicate his/her acceptance. The person accepts the contract by acting.1 The law will examine the tweet for “some language of commitment or some invitation to take further action without further communication.”2 The threshold question is: would a reasonable person read the tweet and understand that she would receive one million dollars if, without further communication with Leslie, she found the laptop. Without this language, the law may find this tweet was merely an advertisement or invitation to begin negotiations. So, in short, if Leslie were sued in Pennsylvania, he may lose a million dollars. My best advice to Leslie: settle early before your legal bill also reaches a million dollars.
There, of course, is a separate issue of whether Leslie is morally or ethically responsible for paying the promised million. I believe the answer is yes. I think Leslie is a sophisticated public figure, and New York Law School agrees with me. He understands the power of Twitter and the media. He is a Harvard-graduate at the age of 19 and a Grammy-award nominee. He should have known better. Thus, the court should hold him accountable for the promises he makes in public.
Sharmil McKee
sm@mckeeoffice.com
Business Attorney
Philadelphia, PA
———–
1. Bauer v. Pottsville Area Emergency Med. Serv., Inc., 758 A. 2d 1265 (Pa. Super. 2000).
2. Bourke v. Kazaras, 746 A.2d 642, 644 (Pa. Super. 2000).
Dr.Phil turns 60 years old on September 1st. Dr. Phil is also known as Phillip McGraw. He has a good reason to celebrate this Thursday. Two weeks ago,he settled a lawsuit involving claims of false imprisonment and misrepresentation. Two woman sued the celebrity psychologist after his show’s producers exposed a naked man to the residents of “The Dr. Phil House” in 2007. The producers wanted to record the ladies’ reaction to the naked man. To be fair, the naked man lived in the house to help resolve his obsession with being a flasher.
Nevertheless, the settlement will help Dr. Phil and CBS save legal fees while protecting his substantial wealth. Dr. Phil made $80 million in 2009.
What can you, as a business owner, learn from this situation? A birthday is a great time for a business owner to re-evaluate his or her estate plan. What should you
consider?
These are just a few ideas. I recommend that you schedule a meeting with your attorney immediately.
Feel free to contact McKee Law Office for your free consultation at 215-242-5260.
McKee Law Office | Business Lawyers | Philadelphia, Pa | http://blog.mckeeoffice.com
McKee Law Office is hiring! We are a business law firm servicing small and mid-sized companies in Philadelphia. We help clients resolve contract disputes through settlement, litigation, and bankruptcy. Now, I am looking for a marketing intern to expand our brand-recognition throughout Philadelphia.
About the Position
The position is part-time; I estimate you will work about 10-15 hours a week.
1. You will draft at least 3 blog entries every week covering business and legal news in Pennsylvania. The entries will also cover celebrities involved in legal challenges throughout the country. We use WordPress and host it privately.
2. You will post on Facebook and Twitter about anything that I am doing in my practice (putting on seminar, attending seminar, etc).
3. You will coordinate a monthly seminar in my office; you will invite potential referral sources to a business law topic of interest.
4. You will record the seminar, edit the audio, and then post as podcast or burn to CD and have her distribute to referral sources.
5. You will contact area organizations and arrange for me to speak at their next meeting.
6. You will set up lunch appointments with current referral sources and potential referral sources.
7. Video any speaking that I do and post on YouTube and as video blog entries.
8. You will periodically drop boxes of pastries off in mornings to local businesses and other referral sources, along with info packets of what I do and how I can help them. You will get the name of the contact person to add to the invite list for the monthly seminars and to schedule lunch with me.
9. Put a business resources group together and coordinate the dates and location of the meetings of members.
About You
You are articulate and intelligent. You are detailed- and task-oriented. You are organized and can follow-up with contacts and manage deadlines. You are engaging and charismatic. You know how to draw people to you and how to establish connections with people. You enjoy your work and strive to perfect your craft. You are courageous; you are willing to contact strangers and introduce yourself. You do not need experience in the legal field. While you do not need marketing experience, you have experience with Facebook, YouTube, and Twitter.
About Us
I started McKee Law Office almost 7 years ago with one client. Now, we have over 200 clients. The team is made up of two attorneys and one paralegal. The office is located in the heart of Mount Airy, Philadelphia, though every one works from the comfort of their home through our virtual office.
How to Apply
If you are interested, please draft a sample one-day, 4-hour, schedule of the tasks you would complete if you worked for us. Email the schedule, your resume and cover letter with contact information to Sharmil McKee at sm@mckeeoffice.com.
Good luck.
The player lockout is not the only issue that the NFL must deal with this week. Last week, 75 former NFL players sued the organization claiming that the NFL intentionally concealed and failed to warn the players about potential brain injuries resulting from game-related concussions. The players are suing for fraud, negligence, and failure to warn. The players claim that the NFL knew about the link between game-playing and brain injuries since 1920′s but concealed this knowledge until June 2010.
This story leads me to ask, if a football field poses such a dangerous workplace, as suggested by this lawsuit, then why hasn’t OSHA issued a citation? In 2006, OSHA
answered that question by stating that injuries to professional players are not disproportionately high.
While an OSHA violation is not essential to proving the players’ proposition, it would help establish that the league breached its duty to warn about the dangerous work environment.
Of course, reader, you are asking does OSHA protect professional football players? Yes, assuming that the agency views the player as an employee as opposed to an independent contractor.
The Occupational Safety and Health Administration was created by congress in 1979 to help employers reduce workplace injuries, illness, and death. The
OSH Act covers private employers and their employees either directly through federal OSHA or through an OSHA-approved state program. State programs must meet or exceed federal OSHA standards for workplace safety and health. OSHA does not regulate the self-employed.
Employers who do not comply with the OSH Act are subject to civil and criminal penalties until they cure the dangerous condition. OSHA may impose civil penalties of up to $70,000.00. An employer who is convicted in a criminal proceedings of a willful violation may face up to six months imprisonment and fines up to $250,000.00 (or $500,000.00 if the employer is a corporation). (See 29 U.S.C. § 666.) An OSHA citation does not create a private right to sue or bring a cause of action against the employer. (See Elliott v. S.D. Warren Co., 134 F.3d 1, 4 (1st Cir. 1998)).
Even though OSHA does not authorize an employee to sue an employer for violations, an employee can sue an employer for failure to warn about occupational hazards. In Pennsylvania, the Supreme Court in 1998, ruled that an employer has a duty to communicate the dangers of the job duties to its employees, if such dangers had been known by employer and generally within the industry. (See Phillips v. A-Best Products, Co., 542 Pa. 124 (1998)). And generally Pennsylvania does not recognize the defense of a sophisticated user. Under this defense, an employer could claim that the employee is a sophisticated user and thus is aware of the dangers involved in the assignment. However, Pennsylvania courts have prohibited the application of that defense.
What can you, as a business owner, learn from this case? If you have employees, then you have a duty to warn your employees about potentially dangerous jobs or work conditions. Under OSHA, you also have a duty to mitigate such dangers. The good news is that OSHA helps employers identify these risks and develop methods to mitigate these risks. For help, visit OSHA’s website for more information. OSHA offers free on-site consultations to small businesses.
Do you have a question about your legal obligations as an employer? Then ask a lawyer. Call McKee Law Office for a free consultation at 215-242-5260.
Sharmil McKee
Business Attorney
Philadelphia, Pa
A French court awarded Spike Lee $46 million for a breach of contract. In 2007, Lee and TF1 Droits Audiovisuels executed a contract where TF1 agreed to distribute Lee’s film “Miracle at St. Anna” worldwide, except in the U.S., Canada, and Italy. When TF1 failed to honor it’s promises, Lee sued. Even though TF1 claimed that they could not distribute the film because Lee failed to deliver the film, the court did not agree. In the end, the court ruled that TF1 was at fault for breaching the agreement,
and ordered TF1 to pay $46 million in Euros to the film’s producers.
Lee will collect $1.5 million of the judgment.
The film is about the story of four black American soldiers who get trapped in an Italian village during WWII. The movie is based on a book written by James McBride, which tells the untold story of African American’s contributions in WWII. In the U.S., the film grossed $7 million but cost $45 million to make.
This award is a relief for Lee because reportedly, he is having trouble
finding financing to produce Inside Man 2.
What can you, as a business owner, learn from Lee’s lawsuit? When deciding to execute an agreement, examine contract laws from other countries. In the U.S., no state allows recovery for moral prejudice.* However, in France, this is a valid cause of action.
*I am only licensed in Pennsylvania, so I can only attest to Pennsylvania’s contract law. Nevertheless, I have colleagues in other jurisdictions; I have never heard of a claim for moral violations. If I am wrong, please post a comment.
Has someone breached or violated your agreement? Call us for a free
consultation. Sharmil McKee @ 215-242-5260.
~~~~~~~~~~~
Sharmil McKee
Business Attorney
Philadelphia, PA
Mobile Resource Card (MRC) is suing the Kardashians (Kimberly, Khloe, Kourtney, and Kris) for $75 million. MRC alleges that when the Kardashians changed their minds about endorsing the plaintiff’s cards, the Kardashians breached their contract and cost MRC $75 million in damages. Here is the 66-page complaint. MRC filed this lawsuit in California, so California law will govern the outcome. However, imagine if Pennsylvania law governed this case. How can the Kardashians legally get out of this contract?A Pennsylvania court will not enforce a contract that is illegal, or repugnant to public policy. A contract that bargains for the violation of a statute is unenforceable. Conceivably, the Kardashians could argue that the Mobile Resource Card violates the Pennsylvania Consumer Protection Act. The Act prohibits deceptive and misleading trade practices. According the Connecticut Attorney General, the high usage and transaction fees are not clearly disclosed to the consumers. If this fact is proven in court, then the card violates the statute and the Kardashians breach of contract would be excused (in Pennsylvania).
What can you, as a business owner, learn from this case. Before you execute an agreement, plan your exit strategy. Always ask yourself, what happens if the other side does not perform as they promised? In this case, if the Kardashians had asked themselves ‘what happens if MRC sells a card that is not as great as we think it is‘, then they could have included an exit provision in the contract.
Sharmil McKee | Business Lawyer | Philadelphia, Pa | blog@mckeeoffice.com
1. [O'Brien v. O'Brien Steel Const. Co., 271 A.2d 254, 440 Pa. 375 (Pa., 1970)].
73 P.S. §§201-1]
Jennifer Lopez is being sued for contractual interference. Jennifer was married to Noa; when they divorced, they signed a nondisclosure agreement. Last year, Noa contracted with his current girlfriend (Claudia Vasquez) and a business partner to film a documentary about his life. Noa claimed he would reveal a honeymoon video which shows a naked Lopez. Lopez asked a judge to issue an injunction prohibiting the distribution of the video. The judge granted Lopez’s request. Presumably, interest in Noa’s documentary evaporated without this honeymoon video. Noa’s girlfriend is now suing Lopez for interference with the contract. She is seeking $10 million. Vasquez filed this suit in California, so California law will determine the outcome. But what would happen if this lawsuit was filed in Pennsylvania?
In Pennsylvania, someone can be held responsible for tortiously interfering with a contract if he or she purposefully wanted to prevent the parties from performing the contract without justification. The contract can be proposed or existing. For example, if a company interviews a prospective employee even though the company knows the candidate has signed a restrictive covenant with his current employer, then the interviewing company has intentionally interfered with that contract (National Chemsearch Corp. of New York v. Bogatin, 233 F. Supp. 802, 810 (E.D.Pa.1964), vacated on other grounds, 349 F.2d 363 (3d Cir. 1965)).
In Lopez’s case, she will be held liable if Vasquez can prove that Lopez acted to purposely prevent Vasquez from performing her obligations under the contract (creating a movie about Noa’s life). However, even if Vasquez demonstrates that Lopez intentional prevented the movie, I doubt that Vasquez will win. Lopez was justified in enforcing her nondisclosure contract with Noa, even if the practical effect was to prohibit the performance of another contract. So, if Vasquez filed her suit in Pennsylvania, she would probably lose.
Do you have a question about contract law? Call us for your free consultation at 215-242-5260.
Sharmil McKee
Business Attorney
Last week, Bishop Eddie Long of New Birth Baptist Church in Atlanta Georgia was accused of sexually assaulting four 17-year old males that attended the church. What to do if your church’s leader is accused in civil court of committing sexual assault? Because the priest, bishop, reverend or pastor is the leader of your organization, the organization has an interest in the outcome of this case. First step, don’t panic. Because someone has filed a lawsuit against you, does not mean the allegations are true or that the plaintiff will prevail in court. Second step, hire an attorney to analyze and review the complaint. Your attorney’s job will be to address the claim, one by one, and discuss the claim’s likelihood of success. I will use Bishop Long’s complaint as an example of this analysis. You can read the lawsuit here.
Vicarious Liability
Vicarious liability in Pennsylvania means the employer shares liability for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment. This claim is not likely to prevail because clearly sexual assault is outside the scope of the Bishop’s duties as it pertains to the organization’s published mission statement.
Negligent Hiring
Negligent hiring in Pennsylvania means an employer is responsible for harm resulting from employing an improper person in work involving a risk of harm to others, or improperly supervising the employee, or permitting or failing to prevent his employees from tortuous conduct upon the premises under the employer’s control. To win, the plaintiff must prove that the organization has evidence or proof that the bishop was or is likely to become a sexual predator when he was hired. What kind of evidence would suffice? A criminal record, or a report from his former employer, or complaints from your members. In addition, the sexual assault must have occurred on the church’s property. Without this kind of evidence, the claim is likely to fail.
Negligence Per Se
Negligence Per Se in Pennsylvania means that the defendant violated a specific statute and this violation injured the plaintiff. In the Bishop Long case, the plaintiff cites to a confidential relationship statue. But that statute merely defines a confidential relationship; it does not create a duty to act. The statue limits itself to a fiduciary relationship created by contract or by law. In Pennsylvania, there is no law that prohibits a preacher from having sex with his parishioner (in comparison, consider the law prohibiting an attorney from having sex with his client). Thus this claim will probably fail because it is not specific enough.
Intentional Infliction of Emotional Distress
Intentional Infliction of Emotional Distress means the defendant’s conduct was so outrageous and extreme, that the plaintiff suffered emotional distress. In Pennsylvania, the law requires the plaintiff to suffer a severe medical injury as a result of the defendant’s actions. The complaint does not specifically list the plaintiff’s medical injuries, so this claim will probably fail because it is not specific enough.
Breach of Fiduciary Duty
A fiduciary duty is an obligation to act in the best interest of another party. Pennsylvania recognizes that a fiduciary duty can exists between a priest and his parishioners. However, this duty does not develop when the plaintiff is merely a member of the church. The relationship must rise to one of special dealings giving one side an unequal influence and the other side weakness and dependence. The court will examine the nature of the relationship between the plaintiff and defendant to determine if a fiduciary duty existed. The relationship must not be too general in nature. It must rise to a higher level of association, like counselor-patient, clergy-penitent. The federal courts have refused to find a cause of action based merely on the relationship between parishioner and clergy. The basis of this refusal is the First Amendment. But some federal courts have permitted a breach of fiduciary duty claim where the plaintiff received counseling or participated in church-sponsored activities. When the plaintiff is a child, the disparity between the plaintiff and the priest is more obvious. However, when the plaintiff is an adult, the age disparity does not automatically lend to a finding of fiduciary duty.
The First Amendment claim is also a powerful shield. Many state courts, including Pennsylvania, have ruled that a breach of fiduciary duty claim based on the priest’s failure to adhere to the church’s canon is precluded by the First Amendment. To prove its theory, plaintiff would necessarily involve excessive governmental entanglement with religion. The court or jury would have to inquire into the propriety of the church’s decisions, matters of discipline, internal organization, ecclesiastical rule and custom. Such an inquiry would violate the First Amendment. The law does not recognize clergy malpractice for the same reason. So, this breach of fiduciary duty claim against Bishop Long probably will not prevail, unless plaintiff received counseling and participated in church-sponsored activities.
Sharmil McKee | Business Attorney | blog@mckeeoffice.com
Ultramercial sued HULU Television in California for patent infringement. A federal district court recently declared that Ultramercial’s patent is invalid. In ULTRAMERCIAL, LLC et al. v. HULU, LLC, et al., Ultramercial claimed that it patented the business process of allowing a user to view television content for free after forcing the user to watch a short advertisement. In essence, Ultramercial claims it patented the process of displaying advertisement in exchange for access to copyrighted media.
The court applied the “machine or transformation test,” because the U.S. Supreme Court stated that this is the sole test for patentability of processes, including business method and software patents. Bilski v. Kappos, __ U.S. __, 130 S.Ct. 3218, 3225 (2010). In addition, the Supreme Court emphasized again that excluded from the patentable subject matter are “laws of nature, natural phenomena, and abstract ideas.”
The federal district court concluded that Ultramercial’s patent is invalid because Ultramercial’s process does not involve a machine or a transformation of an article to a different thing. The court goes even further to declare that Ultramercial’s claim involves an abstract idea, which is not patentable. The court reasoned that the basic idea behind Ultramercial’s claim is that one can use advertisement as a means of exchange.
What can you, the business owner, learn from this case? First, understand that this decision, along with Bilski, makes it harder to enforce a business process patent. This is true particularly if your process involves intangible objects like the internet or copyrighted material. Thus, if you receive a cease and desist letter from a company claiming that your business infringes on their patent, then discuss with your attorney the value of asking a court to invalidate that company’s patent. In light of these two cases, this may be a winning strategy.
Do you have a legal question about your business? Contact us for a free consultation at 215-242-5260 or info@mckeeoffice.com
