Tag: Davidson County Chancery

Foo Fighters’ Nashville Lawsuit provides important lesson on allocating risks in contracts

When COVID first hit, lawyers talked about how future contracts would evolve to anticipate the special challenges presented by a global pandemic.

Now, 19 months in, a new Davidson County Chancery lawsuit filed on behalf of the Foo Fighters shows that–even with all the planning in the world–COVID is still disrupting the best laid plans.

The plaintiff (the touring company that books gigs for the band) alleges that defendant hired the Foo Fighters to perform at an August 13, 2021 corporate event for payroll processing company ADP. The parties entered entered into a April 5, 2021 written agreement. Per the contract, the band would receive $3,000,000 for the performance, with half paid when the contract was signed, and the other half paid at (or before) the event.

But this contract was updated to take into account all the lessons learned during a global pandemic.

Per Paragraph 10 of the Complaint, if the defendant defaults or cancels the performance for any reason, the band would receive the full performance payment (regardless of whether the band actually plays the show).

Based on the allegations of the Complaint, it’s clear that concerns about COVID played a large role in the negotiations. In fact, the parties included a section called “COVID CANCELLATION,” which–as you’d guess–allocated the risk of a forced cancellation due to the pandemic.

And, boy-oh-boy, was that risk apportioned squarely onto the plaintiff:

In short, if the contracted for event were to be deemed unsafe and impossible due to the resurgence of COVID, this provision says that it does not matter. The band, in their “sole reasonable discretion,” can terminate the obligation and refuse to perform…and still get paid.

Was COVID a “force majuere” event? The band says that they expressly removed the reference to COVID in that paragraph, and further allege this:

There’s a bit more to the story, but, in short, COVID didn’t go away, and this August 2021 event at Mile High Stadium in Denver became less and less of a good idea for the ADP corporate event.

They discussed limited capacity, the band offered to do an exclusive live-stream concert, but, on August 4, 2021 (9 days before the event), the defendant decided to cancel the event. The lawsuit points out that “there was no local, state, or other governmental restriction that required the cancellation of the Event” and, helpfully, points out a number of other large concerts and events that happened that weekend in or near Denver.

The Foo Fighters have sued for the $1,500,000 owed under the Agreement. (And I tend to agree with their analysis of the contract.)

It’s an interesting case. On the most superficial level, it shows that, no matter how hard you try, it’s hard to contract around the unexpected.

In April 2021, my own family was so exuberant about the vaccines and a COVID-free summer (and fall) that we surprised our kids with shockingly expensive Jonas Brothers tickets to celebrate the end of the pandemic. In April, my wife and I believed we had weathered the storm and that a sold out concert in September 2021 was a totally safe and reasonable reward for our kids. We went, but we were terrified taking our vaccinated kids to the show.

I have to wonder if the defendants, here, suffered from a similar bit of vaccine optimism.

Nevertheless, the Foo Fighters’ lawyers did not share that optimism; or, if they did, they included sufficient terms in the contract to assign the burden of any risk squarely on the other party.

From what I’ve seen of it, it’s a good contract. Who knew we’d be learning some lessons about contract law from the Foo Fighters?

In Order to Be Granted Summary Judgment on a Claim, a Party Must File a Motion

In Chancery Court litigation, when I’m the movant on a motion for summary judgment, I sometimes describe my potential outcomes as “Win” or “Not Win.”

In short, I’m either going to win my case on summary grounds or not, but, as the moving party, I’m not going to lose the case, unless the other side files their own “counter” motion seeking summary judgment.

The Tennessee Court of Appeals issued an opinion yesterday that confirms this, at Adrian Lynn McWilliams, et. al. v. Brenda Vaughn, et. al. (No. E2017-01942-COA-R3-CV,  Tenn. Ct. App. Jan. 23, 2019).

In that opinion, the Court wrote that, when faced with cross-motions for summary judgment, “a court must rule independently on each motion and determine, with regard to each motion, whether disputes of material fact with regard to that motion exist.” Savage v. City of Memphis, 464 S.W.3d 326, 332 (Tenn. Ct. App. 2015) (citing CAO Holdings, Inc. v. Trost, 333 S.W.3d 73, 82 (Tenn. 2010)). Further, “the denial of one party’s motion for summary judgment does not necessarily imply that the other party’s motion should be granted.” Id. Rather, when considering cross-motions for summary judgment, the court must determine whether each party is “independently entitled to summary judgment.” Id.

To be clear, where one party’s motion for summary judgment is denied does not necessarily mean that the other party is entitled to prevail, even if they filed their own motion. Id. That’s because there are all kinds of factors that go into whether to grant or deny a summary judgment motion.

But, the Court went on to note, where the other side doesn’t file a competing motion, that other, non-moving party is definitely not entitled to an award of summary judgment. Id. In order to be granted summary judgment, you have to be a “moving” party.

So, in the end, keep this opinion handy when you’re preparing for a summary judgment hearing, where the opposing party doesn’t file its own motion. There, it’s a “Win/Not Win” situation for you.

 

Tennessee Supreme Court Changes Rule 4 on Service of Process

The Tennessee Supreme Court has issued four orders adopting amendments to various rules of procedure that will go into effect on July 1, subject to approval from the Tennessee General Assembly.

These include changes to the rules of criminal procedure and evidence, but, today, I’m going to talk about how Tennessee Rule of Civil Procedure 4 has changed. Here is a link to the proposed changes. This includes changes to service of process, which is a critical step in any litigation.

On this issue, it’s Tenn. R. Civ. P. 4.04 that is amended, where a plaintiff tries to serve a defendant via certified mail. Specifically, the amendments add a provision that allows for valid service where a defendant “refuse[s] to accept delivery” of the certified mail, as long as the record contains:

a return receipt stating that the addressee or the addressee’s agent refused to accept delivery, which is deemed to be personal acceptance by the defendant pursuant to Rule 4.04(11)

The Advisory Commission Comments provide a helpful warning for these situations. They state that “the Postal Service’s notation that a registered or certified letter is ‘unclaimed’ is no longer sufficient, by itself, to prove that service was ‘refused.’ ”

This comment clearly reminds plaintiffs to make sure that the return receipt states “refused” and not “unclaimed.” This distinction is important, since so many defendants simply never go to the post office to pick up their certified mail, because they assume it’s just a lawsuit, demand letter, or some other collection correspondence. This Comment makes clear that a lazy defendant does not submit itself to personal jurisdiction.

Davidson County Chancery Court Case and Pleading Access Online

Last year, I noted that the Davidson County Chancery Court had started a service that showed case dockets online. This Chancery Court Public Records Access site provided the names and dates of filings, but not copies of the actual pleadings. Last year, I predicted that electronic copies of pleadings can’t be far behind.

I was right. Now, the Chancery Court has a second site, called Chancery Information Access, on which you can actually view copies of pleadings. It is a subscription service. Here is information on how to register.

It costs $15 a month. If you think that’s expensive, well, wait until you need a copy of pleading and have to walk to the Courthouse to get it.

Now, I’m hoping that the next step will be for Chancery Court to accept remote electronic filing of pleadings.