Question For The Lawyers Among Us

[TLN]

In this thread (http://www.randi.org/vbulletin/showthread.php?s=&threadid=26642) we can see the non-disclosure agreement for the John Edward television program "Crossing Over".

Let's say I got myself a ticket to the show, then proceed to lie my pants off in an attempt to discredit Edward. Kind of like this. (http://www.pvponline.com/archive.php3?archive=20020404)

My question is, what are the legal implications of this? Am I going to go to jail?

[NoZed Avenger]

Ok. I briefly reviewed the pages.

If this holds up as a contract, then any person telling falsehoods could be liable for breach of contract.

A contract needs consideration from both sides -- they offer "publicity and exposure [that you MAY receive]" as their consideration. In return, they get the exclusive right to your photographs, image, likeness, voice, etc -- in perpetuity, throughout "the universe" -- "in connection with the development, production and/or exploitation of the program."

As they show doesn't commit to using you, there may be some question as to whether its consideration is merely illusory. The chance to appear, however, [may] be sufficient to make this binding.

That last bit of language quoted above is sloppy, by the way. There appears to be an argument available to the show that you could not write a book about your own story related to the visit -- as this would be a work "in exploitation" of the program. The show might then camp on your doorstep and demand the profits. If your book was unflattering, then it might try and shut you down based on that language.

NA

To answer your direct question, you would not go to jail unless the elements of fraud could be shown -- most unlikely, unless you lied to obtain money or something. You could, however, be forced to defend against a civil claim for breach of contract for money damages, plus attorneys fees. Oh, and you'd have to travel to New York to arbitrate it.

edited to change to "may" where noted above -- a second read-through makes me less sure that the "consideration" actually would suffice.

[Michael Redman]

I think that's a weak attempt on their part to create a contract. Their "consideration" is of little or no value to you, but of value to them, as that's their entire product; having real people there makes the show.

You see a lot of forms like that people are asked to sign, or simply signs posted (we can not be held responsible . . .) that I think are simply attempts to make people believe that a legal relationship exits that does not actually exits, or to make you think you've lost a legal right you actually have.

If you violate the agreement, you might very well get sued, even if they ended up losing the case, if they take the agreement seriously enough. I would have to look into the matter in much greater depth before I would advise anyone that they would be OK ignoring the agreement, of course.

[Darat]

I have a question here to do with one phrase at the top of page 2:



.... I am aware that it may be criminal offence punishable by fine and/or imprisonment for anyone to do anything that would rig or anyway influence the outcome of the Program with the intent to deceive the viewing public.........



This seems incredibly sloppy wording, that (if this was a UK contract) means nothing beyond "I know if I do something criminal I can be fined or imprisoned"? Well yes, but that has nothing to do with the contract you are signing!

If there isn't a difference between UK & USA contract law in this matter I can't think of any reason to place this wording into a civil contract?

[hgc]

Originally posted by Darat
I have a question here to do with one phrase at the top of page 2:


.... I am aware that it may be criminal offence punishable by fine and/or imprisonment for anyone to do anything that would rig or anyway influence the outcome of the Program with the intent to deceive the viewing public.........

This seems incredibly sloppy wording, that (if this was a UK contract) means nothing beyond "I know if I do something criminal I can be fined or imprisoned"? Well yes, but that has nothing to do with the contract you are signing!

If there isn't a difference between UK & USA contract law in this matter I can't think of any reason to place this wording into a civil contract? I'm no lawyer, but it's obvious that that part is only in there to scare people. It has nothing to do with what's enforcable under this contract. It's illegal or it isn't, without regard to this contract.

[NoZed Avenger]

It is also a CYA provision -- look, we're good, good people who don't do those sorts of things. Business PR.

NA

[TLN]

Now for a matter of pure opinion:

So, I get in, I lie, and Edward is busted. Obviously, the footage never airs, but since I'm telling my story of deception all over the place (I can just see the Randi commentary now) Edward sues me silly.

Think I'd get away with it? I mean, sure I broke a contract, but in the process I exposed a fraud bilking people out of lots of money. I'm can't imagine any judge not letting me walk. Maybe that pinhead in Alabama...

[NoZed Avenger]

I wouldn't want to jump in with an opinion without more thought and a thorough reading on NY law. I have some doubts that the "contract" is binding, but I cannot say that it is not.

Remember: win or lose on such a matter, there may be significant costs just because they can outspend you. Intimidation with those types of threats are used by lots of companies to keep people cowed.

NA

[Instig8R]

Originally posted by TLN
Now for a matter of pure opinion:

So, I get in, I lie, and Edward is busted. Obviously, the footage never airs, but since I'm telling my story of deception all over the place (I can just see the Randi commentary now) Edward sues me silly.

Think I'd get away with it? I mean, sure I broke a contract, but in the process I exposed a fraud bilking people out of lots of money. I'm can't imagine any judge not letting me walk. Maybe that pinhead in Alabama...

Hi, TLN!

Based on the equitable doctrine of unclean hands, JE would not be able to obtain relief in a Court of equity.

Go for it!

[TLN]

Originally posted by Instig8R
Go for it!

Oh, I haven't said I'm going for anything, I just wanted to explore the issue. :)

[Michael Redman]

I agree with NoZed; if you want to take on JE by violating the agreement, you had better be prepaired for a lengthy, expensive, and emotionally demanding fight, even if you get good, local, and specific legal advice that you're a likely winner under the law. Don't try to get yourself sued on a whim, especially by a large, rich organization with it's credibility on the line.

[Thanz]

Originally posted by Instig8R


Hi, TLN!

Based on the equitable doctrine of unclean hands, JE would not be able to obtain relief in a Court of equity.

Go for it!
JE would be seeking damages (not an equitable remedy) and those damages would be huge if you actually toppled his empire.

I think that the agreement is too strong in favour of the producers of the program for you to get anywhere. You would need to get the agreement thrown out to have any chance, and the consideration argument is not a slam dunk - "a peppercorn is enough".

Anyway, I have two words for anyone who thinks that they can topple Edward in this fashion: Michael O'Neill. How long did that come out? It was TIME magazine. JE is still raking in the bucks. Nothing short of a staffer confessing to researching and feeding info to JE will bring him down, and maybe not even that.

[TLN]

Originally posted by Thanz
JE is still raking in the bucks. Nothing short of a staffer confessing to researching and feeding info to JE will bring him down, and maybe not even that.

Not even that, because believers will simply rationalize them away.

Heck, people still believed Carlos after he confessed!

[TLN]

Originally posted by TLN
Not even that, because believers will simply rationalize them away.

Heck, people still believed Carlos after he confessed!

For clarity, I'm referring to the hoax Randi pulled on Australia.

[billydkid]

Originally posted by TLN
Now for a matter of pure opinion:

So, I get in, I lie, and Edward is busted. Obviously, the footage never airs, but since I'm telling my story of deception all over the place (I can just see the Randi commentary now) Edward sues me silly.

Think I'd get away with it? I mean, sure I broke a contract, but in the process I exposed a fraud bilking people out of lots of money. I'm can't imagine any judge not letting me walk. Maybe that pinhead in Alabama...

Seems odd that you have to sign a contract that you will not lie to John Edward for the privilege of having him lie to you.

[Instig8R]

Originally posted by Michael Redman
I agree with NoZed; if you want to take on JE by violating the agreement, you had better be prepaired for a lengthy, expensive, and emotionally demanding fight, even if you get good, local, and specific legal advice that you're a likely winner under the law. Don't try to get yourself sued on a whim, especially by a large, rich organization with it's credibility on the line.

This is very true. Rather than violate the agreement, I would try to get a Court to set aside the agreement as being unconscionable, manifestly unfair, against public policy, etc.

[Instig8R]

Originally posted by Thanz

-snip-

Anyway, I have two words for anyone who thinks that they can topple Edward in this fashion: Michael O'Neill. How long did that come out? It was TIME magazine. JE is still raking in the bucks. Nothing short of a staffer confessing to researching and feeding info to JE will bring him down, and maybe not even that.

LOL, Thanz! I'll bet that we could produce a videotape of JE surfing the 'net, 30 minutes before taping CO... and there would still be some people who would believe he was playing Free Cell.

And, speaking of O'Neill: I always thought that audience members were required to sign non-disclosure agreements prior to being on CO. I am not surprised that an Appearance Release is used, but I am perplexed that there is no non-disclosure included... unless I missed it?

Under these circumstances, it seems to me that audience members can say anything they want about their experience on CO. They just can't prevent CO from using their image, etc., in any way they choose.

I dunno....

[Clancie]

There's no non-disclosure agreement for CO, despite what has been mistakenly stated in the past.

I'm sure that's why O'Neill felt so free to say whatever he wanted about the experience, even claiming things he had no factual basis for at all.

[Loki]

TLN,

For clarity, I'm referring to the hoax Randi pulled on Australia
I'd prefer "...pulled on part of Australia."

[TLN]

Originally posted by Loki
I'd prefer "...pulled on part of Australia."

Noted, sorry, my bad. :)

[Instig8R]

Originally posted by Clancie
There's no non-disclosure agreement for CO, despite what has been mistakenly stated in the past.

I'm sure that's why O'Neill felt so free to say whatever he wanted about the experience, even claiming things he had no factual basis for at all.

Hi, Clancie--

Thanks for confirming that there's no non-disclosure for CO.

I find it extremely amusing that O'Neill has essentially accused CO of doing the things that their Appearance Release permits them to do.

By their own admission, Sixth Ave. Productions states that the show is not factual. Why should anyone make a fuss if O'Neill is not factual? :D

[ceo_esq]

Originally posted by Instig8R


This is very true. Rather than violate the agreement, I would try to get a Court to set aside the agreement as being unconscionable, manifestly unfair, against public policy, etc. I'm not sure how those arguments could be raised except in the context of defending an alleged violation of the agreement. Also, given the arbitration clause, it would be difficult to get those arguments before a court in the first place. I suppose one could try them out in a motion to stay arbitration or a motion to vacate an arbitral award, but wouldn't the primary issue there be the enforceability of the arbitration clause itself?

[NWilner]

Well since the thread is calling lawyers I'll put in two thousanths. I can't agree with the tenor of the discussion here, which seems one of fear. In the real world of contract litigation, my habitat for the last 30 years or so, these truths are evident:

(1) Truth is a defense to almost everything;

(2) Really wierd contracts don't get enforced;

(3) Little guys with no money don't get messed with much.

(4) Edwards would not get far suing anyone unless trade secrets,or employment, is involved. Generally you can silence your employees (to a point, but there is a broad whistleblower privilege), especially when trade screts are involved, but you can't silence strangers whom you had a passing involvement with in the context of a TV performance.

(5) Atty fee provisions are interpreted both ways or not at all.

(6) There'd be humungous defenses to any contract Edwards gets you to sign, like, lettsee, fraud in the inducement (for starters). And I'd think of more....

If you get in trouble just call and we'll kicktherasses.

[Iamme]

NoZed Avenger---Back in the 70's, I tried to pick up girls on Daytona Beach, looking just about like your avatar. No joke!

[NoZed Avenger]

Originally posted by Iamme
NoZed Avenger---Back in the 70's, I tried to pick up girls on Daytona Beach, looking just about like your avatar. No joke!

(1) Did it work any better for you? (Other Avatar, that is)

(2) Satchel? (If no immediate connection, please ignore this)

NA

[Iamme]

NoZed Avenger. The avatar is the one you have just above this post. Did it work for me? This is how it was: My cousin and I were driving down Daytona Beach in his dune buggy. I was the passenger. I was donning the groucho marx nose & glasses, with my longer than shoulder-length bleach-blonde hair. Girls would giggle and come over to talk to us. Nothing really came of it though...but it was fun, and was a conversation opener.

We lived in Sarasota at the time and were over to watch the Daytona 500, in 1975. Benny Parsons (now a commentator) won it that year. We lived close to the beach on Siesta Key in Sarasota. Two 'old' dudes that were in their early 30's who lived a few doors down from us were the ones to teach us the fine points in trying to get women on the beach. Their method?; "Do you wanna F***? " I'm not kidding! I was never nervy enough to do that though.:o

[Instig8R]

Well, I’m really feeling like I’m in a time warp here-- The seventies, revisited! It was a cruel decade, in which many little polyesters lost their lives. But, as Groucho would say:

“Time flies like an arrow, but fruit flies like a banana”.


Now, is that a skillful segue back to the topic,or what?!?

Essentially, JE’s Appearance Release is an adhesion contract. It is offered to potential audience members on a take-it-or-leave-it basis. It is one-sided and oppressive. I think its effect could be chilling enough that a Court could be persuaded to set it aside… but I am not sure of the proper procedure.

I can’t envision a scenario where, if I was someone who was read in the CO gallery, I would breach the contract… I'm not even sure how I could manage to breach it, so I haven't considered defending myself if sued.

However, I can imagine a variety of situations in which I would want to rescind or modify the agreement. For example, if my reading was edited in a way that was humiliating to me or a family member, or if someone sued me because of something that was said on the show, etc., I would want a fast remedy. An Order to Show Cause and an injunction might be the way to go.

A few weeks ago, on CO, when JE was reading a couple of young women in the gallery, he suggested that one of them had been away at a resort, and got caught skinny-dipping in the hotel pool. The women denied it, and that was the end of it. On another episode, JE suggested to a woman he was reading that her first husband (who died long ago) was unfaithful to her. In the post reading segment, she suggested that she used to think that he might have cheated on her, but that everyone else told her that she was imagining it, and it was never confirmed in any way… until JE busted him in the Gallery, of course.

I see a lot of potential for mischief by JE and his producers, and the Appearance Release gives them total freedom. Depending on the circumstances, I feel that this document could be successfully challenged in Court.

I’m not a lawyer... only a former paralegal. Am I totally out-to-lunch on this one?

[NoZed Avenger]

Originally posted by Instig8R
I’m not a lawyer... only a former paralegal. Am I totally out-to-lunch on this one?

No, I'd say you're thought process is on the money -- as far as states that I am familiar with (NY is not one).

I want to emphasize, though, that without looking at it much closer, there is no guarantee here. The "contract" has what I consider huge holes, but I am not willing to stake an opinion on what I think about it off the top of my head. Nor will being right necessarily help you if you cannot afford to fight until you prevail.

If anyone is thinking about taking this on, don't do it on a whim and hope to get along "by guess and by God." If anyone is serious about a challenge, the time to look it over carefully is BEFORE you do something that cannot be taken back; not after.

N/A

[Instig8R]

Thanks for the reality check, NA. I understand what you are warning against, because it is quite clear that not everyone has a legal arsenal like the kind JE can afford. I am sure he has the finances to out-litigate the average person. Only a crazed pro se litigant, like moi, could prevail against such a foe. ;)

It is still interesting to speculate on how one would get around the Appearance Release. I did a cursory check, and I think the Courts in NY might be more likely than other states to set aside such a document. These arbitration clauses are seen most frequently in insurance policies and employment agreements, which aren’t always upheld. Courts just don’t like to deprive people of their day in Court, especially people who lack equal bargaining power in the agreements that they sign.

I came across an article, (I think it was from NY’s Nassau County Bar Association), which discussed weaknesses in enforcing arbitration clauses in employment law cases. This appears to be creating a trend in which lawyers are replacing these arbitration clauses with waivers of jury trials. In this way, employees can have their day in court, and employers are not intimidated by the threat of an overly sympathetic working-class jury.

I watched JE’s first show of the new TV season today. There were no new readings -- It was just a bunch of recycled, more obviously re-edited old readings. All I could think of was the Appearance Release...

...and what a great case of first impression this could be.

[NoZed Avenger]

Originally posted by Instig8R
Thanks for the reality check, NA.

All in a day's work.

...and what a great case of first impression this could be.

Oh, I'm not saying it wouldn't be FUN, mind you. . . .

N/A

[alibaba]

Originally posted by TLN
In this thread (http://www.randi.org/vbulletin/showthread.php?s=&threadid=26642) we can see the non-disclosure agreement for the John Edward television program "Crossing Over".

Let's say I got myself a ticket to the show, then proceed to lie my pants off in an attempt to discredit Edward. Kind of like this. (http://www.pvponline.com/archive.php3?archive=20020404)

My question is, what are the legal implications of this? Am I going to go to jail?

Just give me you billing address, and I can give you my legal advice :rolleyes: