American Contract Law for a Global Age, 2017a

Review Question 2. What was Judge Cardozo’s factual basis in Wood v. Lucy,
Lady Duff-Gordon for implying a promise by Wood that was not actually stated in the
written agreement between the parties? How, according to the Llewellyn excerpt
above, should the case come out under established contract doctrine in the absence of
an implied term? Which result do you believe would better effectuate the actual intent
of the parties?
Review Question 3. In his book, Framing Contract Law, Professor Victor
Goldberg explores the history of Wood and discovers that Otis Wood deliberately
failed to put a best efforts clause into the Duff-Gordon contract because he had earlier
been sued over a similar clause in a similar distribution clause with the creator of the
hugely popular Kewpie Dolls. Does this fact affect your conclusion about whether
Judge Cardozo was correct in his opinion? Why or why not?
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MENDENHALL v. HANESBRANDS, INC.
U.S. District Court for the Middle District of North Carolina
856 F. Supp. 2d 717 (M.D.N.C. 2012)
BEATY, C.J.
[Rashard Mendenhall was a popular professional football player for the
Pittsburgh Steelers. He signed a contract with Hanesbrands in 2008 under which he
agreed to help advertise and promote products sold under the Champion trademark.
Section 17(a) of the contract contained a “morals clause” that read as follows:
If Mendenhall commits or is arrested for any crime or becomes involved in any
situation or occurrence (collectively, the “Act”) tending to bring Mendenhall into
public disrepute, contempt, scandal, or ridicule, or tending to shock, insult or offend
the majority of the consuming public or any protected class or group thereof, then
we shall have the right to immediately terminate this Agreement. [Hanesbrands’]
decision on all matters arising under this Section 17(a) shall be conclusive.
Beginning in 2011, Mendenhall began to use the Twitter social media platform
to give his opinions on a range of issues. In 2011 he issued a series of tweets
expressing statements many readers believed to be supportive of Osama bin Laden,
the architect of the September 11, 2001 destruction of the World Trade Center, and
questioning the U.S. government’s account of what happened. The tweets stirred up
substantial public controversy, including both opposition to and support for
Mendenhall’s statements.]
In a letter dated May 5, 2011, Hanesbrands’ Associate General Counsel indicated that
it was Hanesbrands’ intent to terminate the Agreement effective Friday, May 13,
2011, pursuant to Paragraph 17(a) of the Agreement. Hanesbrands issued a public
statement to ESPN, stating the following:
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404 CHAPTER VI: TERMS AND INTERPRETATION