November 08, 2006

posted by Nate Oman

That Section 4 is a doozy. I'd like to think that I wouldn't sign that for a couple hundred bucks. Then again, God knows what I've signed over the years.

I don't understand why you think Cohen would be subject to a lawsuit. What's the plaintiff's claim? You taped me saying stupid things and making racist comments? These folks knew they were being filmed, and they signed releases.

Miriam: It seems that there is at least the possibility of fraud, as he obtained their consent by lying to them.

I don't think it matters. They knew that they were being interviewed and that it would be public (i.e. broadcast).

I agree with what Tadas Klimas said on the AALS contracts listserve:

"Whenever we speak, do we not invite the biting retort? The sarcastic
remark? Especially on camera."

I'm not so sure. Obviously, I'd have to look at the case law on this, but I think that the calculus involved in signing a release when you think you are talking with a journalist and signing a release when you are talking with a comedian who is going to try to make you look funny is different. I have not special sympathy for the racists that Cohen sends up in his film, but the set up does strike me as fundamentally deceptive, especially in light of the legal claims that the parties are signing away in the contract, which was presented to them under false pretenses.

How are we sure that the contract was presented under false pretense? I sounds like he said she said in regards to how they were enticed to sign the contract.

There seem to be three main issues:
1) Can they get out of it based on their intoxication claim; and
2) Is there a public policy issue with disclaiming a right to bring action in tort.
3) Was there fraud in the inducement?

With regards to the intoxicatio claim, courts seem to be unlikely to overturn unless they were very drunk, to the point of being "unable to understand in a reasonable manner" or "unable to act in a reasonable manner." (See 2nd Restatement Section 16). That appears to be a very high standard and would require more than just being "loosened up.
With regards to the public policy concern, I would think that it would be outweighed by the concern to protect freedom of the press. It would be interesting to see the arguments that they would make on this point.

However, even if they were to get the clauses disclaiming actions in tort voided, I can't imagine they would actually win on them. The movie doesn't have any false information, they said what they said.

Fraud in the inducement would seem to be very difficult to prove, the contract is actually very explicit to what they were signing. It even gave examples of rights they were waiving. There is little to no chance that if they had read the contract they would not know the terms that they were agreeing to.

Lastly, as many have already said, I think we only need to look to the "Girls Gone Wild Videos" to see an example of drunken contract signing that has been upheld. If those contracts can be upheld, it seems that this one is ironclad.

Any comments on my quick analysis would be appriciated.

I don't think you'll need a whole lot of time in the library to realize that someone specifically disclaiming reliance on any oral statements will have difficulty challenging a contract based those statements. That disclaimer is certainly in plain language, and a court should find it difficult to suggest other terms in the face of a total lack of ambiguity as to the terms of the agreement on its face.