Apparently Cheryl is supposed to not to want to hold onto a contract, but let it be broken, and not to want to see it go through, because it will a) be petty and greedy b) she appeared at the Children in Need concert c) she was fired, so she should just accept it, and forget any contracts existed. Anyone would do this, right? We would get unlawfully sacked, and just walk away because we don't want to appear petty or greedy.
What does Children In Need have to do suing for breach of contract ?
If other people walk away from being unlawfully dismissed that their own fault as we have employment law in the UK for a reason.
What does Children In Need have to do suing for breach of contract ?
If other people walk away from being unlawfully dismissed that their own fault as we have employment law in the UK for a reason.
It was a silly jab aimed at one post in this thread calling Cheryl a hypocrite, because she took part in CIN, but is now suing Xfactor bosses for breach of contract.
I was trying to be sarcastic in my post, obviously failing miserable. Anyone with any sense would sue their employers who unlawfully fired them or breached a a contract.
If Cheryl was the one who made the contract for someone else, and she wasn't adhering to it nobody would be calling the other person greedy. Cheryl would be the one in the wrong.
If Cheryl was the one who made the contract for someone else, and she wasn't adhering to it nobody would be calling the other person greedy. Cheryl would be the one in the wrong.
It really is sad how some cannot be objective.
To be truly objective, let's remove all parties' names from this controversy and look at it in simplest terms.
We haven't seen the original contract dated April 22, 2011, without which we CAN'T be objective. Everyone is just speculating without seeing the specific language contained in the contract. Neither have we seen Defendant's Answer to the Complaint, or indeed any Proof of Service showing Defendant has even been served with the Complaint.
When the Answer to Complaint has been filed, it will be readily available on the Los Angeles Superior Court's website. However, the language in the Complaint raises a reasonable doubt Plaintiff is entitled to the relief prayed for:
1) The Complaint filed December 7, 2012, quotes from the original contract: "on a pay or play basis the following guaranteed compensation: (1) For the First Broadcast Season, $1,800,000. (2) for the Second Broadcast Season, $2,000,000."
2) Nowhere does it allege that the other monies demanded by Plaintiff qualify as part of the guaranteed compensation.
3) The Complaint (weakly, imo) states, "Plaintiffs are informed and believe, and thereon allege, that it was [Defendant's] intent (and its practice as to other performers to whom [Defendant] paid such allowances) to pay out these allowances as part of payroll along with other compensation." This is next to meaningless as it does not allege that Defendant ever paid any such allowances in addition to "pay or play" guaranteed compensation, to anyone, under any circumstances.
4) Neither does the Complaint allege that personal security costs or airfare fall under guaranteed compensation.
5) The Complaint appears to acknowledge the Plaintiff did not perform "all conditions, covenants and promises required on their part to be performed," saying instead "to the extent those conditions, covenants, and promises were not excused by [Defendant]." IMO they cannot have it both ways, having Plaintiff excused from some requirements but insisting Defendant be strictly held to their end of an agreement Plaintiff did not fully honor.
6) The Complaint requests a Jury Trial. The judge who will oversee the case, Los Angeles Superior Court Judge Abraham Khan, has a record of encouraging parties to settle out of court, as he did when Sharon Osbourne was sued by Megan Hauserman over a hair-pulling attack. They settled out of court days before a jury trial was to begin.
7) In the event the case goes to a jury trial, jurors will be asked to determine the intent of the parties, and also to apply the "reasonable person" standard. Did the parties intend all the expense items listed in the complaint to be paid in addition to the guaranteed compensation? Is it reasonable to award Plaintiff $15,000 a month for 'hotel/apartment allowance in Los Angeles' when the Plaintiff returned home to the UK even before Defendant exercised its option to terminate the short-lived contract?
The attorney who filed the Complaint, Allen B. Grodsky, is NOT Will.i.am's regular attorney (Ken Hertz) but defended Will.i.am and the BEP in two cases accusing Will.i.am and the Black Eyed Peas of copyright infringement. Both of those were settled out of court, paying damages to Plaintiff (and funk pioneer) George Clinton.
P.S. Cheryl was only half right when she said the lawsuit had nothing to do with her or Simon, that it was a case of lawyers battling it out. While Simon isn't named as a defendant--yet--the Complaint reserves the right to amend the Complaint with the identities of Does 1-25--the Plaintiffs are Cheryl herself and her loan-out corporation, CC Entertainments Ltd., formed to shelter her income from higher tax rates.
Blue Orbit filed its Answer to Complaint on January 8, 2013:
Defendant BLUE ORBIT PRODUCTIONS, INC. ("Defendant"), for itself and for no other defendant, hereby responds to the unverified Complaint filed by Plaintiffs C C ENTERTAINMMENTS LIMITED ("CC") and CHERYL COLE ("Cole") (collectively, "Plaintiffs") as follows:
1. Pursuant to California Code of Civil Procedure Section 431.30(d) Defendant generally denies each and every allegation of the Complaint.
FIRST AFFIRMATIVE DEFENSE
(Failure To Allege Facts Sufficient to Constitute A Cause of Action)
2. Defendant affirmatively alleges that the Complaint, and each purported cause of action therein, fails to state facts sufficient to constitute any cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
(Waiver)
3. Defendant affirmatively alleges that Plaintiffs have waived some or all of the claims asserted in the Complaint.
THIRD AFFIRMATIVE DEFENSE
(Estoppel)
4. Defendant affirmatively alleges that Plaintiffs are estopped from asserting some or all of the claims alleged in the Complaint.
FOURTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
5. Defendant affirmatively alleges that Plaintiffs are not entitled to recover on the claims asserted in the Complaint because they have failed to mitigate their alleged damages.
FIFTH AFFIRMATIVE DEFENSE
(Lack of Standing)
6. Defendant affirmatively alleges that Plaintiff Cole lacks standing to assert the claims alleged in the Complaint because she is not a party to the operative agreement and/or because all of the alleged payment obligations that Defendant is alleged to have breached are obligations owed only to CC.
SIXTH AFFIRMATIVE DEFENSE
(Mistake)
7. Defendant affirmatively alleges that to the extent that the operative agreement can be interpreted as entitling Plaintiffs to the payments they allege are due and owing, the agreement is the result of mutual mistake and/or a unilateral mistake by Defendant about which Plaintiffs knew or should have known at the time of contracting.
WHEREFORE, Defendant prays for judgment as follows:
1. That Plaintiffs take nothing by their Complaint, and that the Complaint be dismissed with prejudice;
2. For Defendants' costs of suit herein; and
3. For such other, further or different relief as the Court deems just and proper.
Dated: January 8, 2013
KATTEN MUCHIN ROSENMAN LLP
DAVID HALBERTSTADTER
DANIELLE RAYMOND
By [signed] David Halberstadter
Attorney for Defendant BLUE ORBIT PRODUCTIONS, INC.
[NOTE: A Case Management Conference has been set for April 9, 2013]
I know a few charities that could use that sort of money.
And I don't mean me!
There is no obligation. There does seem to be a tendency these days for people to try to guilt others into making charitable donations and I find it absurd.
The question some had wasn't whether the amounts were excessive, merely whether they were truly owed.
Blue Orbit's Answer to the Complaint states unequivocally that a Mistake was made, either a mutual mistake, or a mistake by the Defendant that Plaintiff knew, or should have known at the time of contracting. After all, what is Pay or Play but Take it And Go if things don't work out? Not "And we'll also pay you for a SECOND season" and all the other expenses that were never incurred?
The intent of the parties is a key element of any contract. But it's hard to be sympathetic to a production company like Blue Orbit that pressured its employees to work virtually around the clock for no additional money, according to a class action suit filed a few years ago on behalf of three employees.
That case was settled out of a court and we never heard a peep about the terms (or even the fact of the settlement), so it wouldn't be surprising if this is also settled out of court.
As to the ethics of filing a lawsuit to take advantage of someone's mistake, everyone--including the trier of fact--can make their own decision.
In its Answer to Complaint, Blue Orbit argues that Cheryl herself does not have standing to join the lawsuit, as the contract was with CC Entertainments Ltd.
Blue Orbit filed its Answer to Complaint on January 8, 2013:
Defendant BLUE ORBIT PRODUCTIONS, INC. ("Defendant"), for itself and for no other defendant, hereby responds to the unverified Complaint filed by Plaintiffs C C ENTERTAINMMENTS LIMITED ("CC") and CHERYL COLE ("Cole") (collectively, "Plaintiffs") as follows:
1. Pursuant to California Code of Civil Procedure Section 431.30(d) Defendant generally denies each and every allegation of the Complaint.
FIRST AFFIRMATIVE DEFENSE
(Failure To Allege Facts Sufficient to Constitute A Cause of Action)
2. Defendant affirmatively alleges that the Complaint, and each purported cause of action therein, fails to state facts sufficient to constitute any cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
(Waiver)
3. Defendant affirmatively alleges that Plaintiffs have waived some or all of the claims asserted in the Complaint.
THIRD AFFIRMATIVE DEFENSE
(Estoppel)
4. Defendant affirmatively alleges that Plaintiffs are estopped from asserting some or all of the claims alleged in the Complaint.
FOURTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
5. Defendant affirmatively alleges that Plaintiffs are not entitled to recover on the claims asserted in the Complaint because they have failed to mitigate their alleged damages.
FIFTH AFFIRMATIVE DEFENSE
(Lack of Standing)
6. Defendant affirmatively alleges that Plaintiff Cole lacks standing to assert the claims alleged in the Complaint because she is not a party to the operative agreement and/or because all of the alleged payment obligations that Defendant is alleged to have breached are obligations owed only to CC.
SIXTH AFFIRMATIVE DEFENSE
(Mistake)
7. Defendant affirmatively alleges that to the extent that the operative agreement can be interpreted as entitling Plaintiffs to the payments they allege are due and owing, the agreement is the result of mutual mistake and/or a unilateral mistake by Defendant about which Plaintiffs knew or should have known at the time of contracting.
WHEREFORE, Defendant prays for judgment as follows:
1. That Plaintiffs take nothing by their Complaint, and that the Complaint be dismissed with prejudice;
2. For Defendants' costs of suit herein; and
3. For such other, further or different relief as the Court deems just and proper.
Dated: January 8, 2013
KATTEN MUCHIN ROSENMAN LLP
DAVID HALBERTSTADTER
DANIELLE RAYMOND
By [signed] David Halberstadter
Attorney for Defendant BLUE ORBIT PRODUCTIONS, INC.
[NOTE: A Case Management Conference has been set for April 9, 2013]
Any more news about this lawsuit? I wonder how long it will drag out for.
Blue Orbit's Answer to the Complaint states unequivocally that a Mistake was made, either a mutual mistake, or a mistake by the Defendant that Plaintiff knew, or should have known at the time of contracting.
If they admit that they made a mistake, surely that weakens their position? If it was the other way around and Cheryl's team made a mistake whereby Cheryl didn't get paid for the first season unless she completed the whole season, I'm sure Blue Orbit wouldn't be slow in using that mistake to not have paid her.
Comments
What does Children In Need have to do suing for breach of contract ?
If other people walk away from being unlawfully dismissed that their own fault as we have employment law in the UK for a reason.
It was a silly jab aimed at one post in this thread calling Cheryl a hypocrite, because she took part in CIN, but is now suing Xfactor bosses for breach of contract.
I was trying to be sarcastic in my post, obviously failing miserable.
Whereas you are a serial cheerleader of hers.
No, not at all. If you look at my posts, you'll see otherwise
Cheerleader :rolleyes: Made me laugh anyway
I read this as "serial cheater" and got REALLY confused for a moment.
It really is sad how some cannot be objective.
To be truly objective, let's remove all parties' names from this controversy and look at it in simplest terms.
We haven't seen the original contract dated April 22, 2011, without which we CAN'T be objective. Everyone is just speculating without seeing the specific language contained in the contract. Neither have we seen Defendant's Answer to the Complaint, or indeed any Proof of Service showing Defendant has even been served with the Complaint.
When the Answer to Complaint has been filed, it will be readily available on the Los Angeles Superior Court's website. However, the language in the Complaint raises a reasonable doubt Plaintiff is entitled to the relief prayed for:
1) The Complaint filed December 7, 2012, quotes from the original contract: "on a pay or play basis the following guaranteed compensation: (1) For the First Broadcast Season, $1,800,000. (2) for the Second Broadcast Season, $2,000,000."
2) Nowhere does it allege that the other monies demanded by Plaintiff qualify as part of the guaranteed compensation.
3) The Complaint (weakly, imo) states, "Plaintiffs are informed and believe, and thereon allege, that it was [Defendant's] intent (and its practice as to other performers to whom [Defendant] paid such allowances) to pay out these allowances as part of payroll along with other compensation." This is next to meaningless as it does not allege that Defendant ever paid any such allowances in addition to "pay or play" guaranteed compensation, to anyone, under any circumstances.
4) Neither does the Complaint allege that personal security costs or airfare fall under guaranteed compensation.
5) The Complaint appears to acknowledge the Plaintiff did not perform "all conditions, covenants and promises required on their part to be performed," saying instead "to the extent those conditions, covenants, and promises were not excused by [Defendant]." IMO they cannot have it both ways, having Plaintiff excused from some requirements but insisting Defendant be strictly held to their end of an agreement Plaintiff did not fully honor.
6) The Complaint requests a Jury Trial. The judge who will oversee the case, Los Angeles Superior Court Judge Abraham Khan, has a record of encouraging parties to settle out of court, as he did when Sharon Osbourne was sued by Megan Hauserman over a hair-pulling attack. They settled out of court days before a jury trial was to begin.
7) In the event the case goes to a jury trial, jurors will be asked to determine the intent of the parties, and also to apply the "reasonable person" standard. Did the parties intend all the expense items listed in the complaint to be paid in addition to the guaranteed compensation? Is it reasonable to award Plaintiff $15,000 a month for 'hotel/apartment allowance in Los Angeles' when the Plaintiff returned home to the UK even before Defendant exercised its option to terminate the short-lived contract?
The attorney who filed the Complaint, Allen B. Grodsky, is NOT Will.i.am's regular attorney (Ken Hertz) but defended Will.i.am and the BEP in two cases accusing Will.i.am and the Black Eyed Peas of copyright infringement. Both of those were settled out of court, paying damages to Plaintiff (and funk pioneer) George Clinton.
P.S. Cheryl was only half right when she said the lawsuit had nothing to do with her or Simon, that it was a case of lawyers battling it out. While Simon isn't named as a defendant--yet--the Complaint reserves the right to amend the Complaint with the identities of Does 1-25--the Plaintiffs are Cheryl herself and her loan-out corporation, CC Entertainments Ltd., formed to shelter her income from higher tax rates.
Defendant BLUE ORBIT PRODUCTIONS, INC. ("Defendant"), for itself and for no other defendant, hereby responds to the unverified Complaint filed by Plaintiffs C C ENTERTAINMMENTS LIMITED ("CC") and CHERYL COLE ("Cole") (collectively, "Plaintiffs") as follows:
1. Pursuant to California Code of Civil Procedure Section 431.30(d) Defendant generally denies each and every allegation of the Complaint.
(Failure To Allege Facts Sufficient to Constitute A Cause of Action)
2. Defendant affirmatively alleges that the Complaint, and each purported cause of action therein, fails to state facts sufficient to constitute any cause of action against Defendant.
(Waiver)
3. Defendant affirmatively alleges that Plaintiffs have waived some or all of the claims asserted in the Complaint.
(Estoppel)
4. Defendant affirmatively alleges that Plaintiffs are estopped from asserting some or all of the claims alleged in the Complaint.
(Failure to Mitigate)
5. Defendant affirmatively alleges that Plaintiffs are not entitled to recover on the claims asserted in the Complaint because they have failed to mitigate their alleged damages.
(Lack of Standing)
6. Defendant affirmatively alleges that Plaintiff Cole lacks standing to assert the claims alleged in the Complaint because she is not a party to the operative agreement and/or because all of the alleged payment obligations that Defendant is alleged to have breached are obligations owed only to CC.
(Mistake)
7. Defendant affirmatively alleges that to the extent that the operative agreement can be interpreted as entitling Plaintiffs to the payments they allege are due and owing, the agreement is the result of mutual mistake and/or a unilateral mistake by Defendant about which Plaintiffs knew or should have known at the time of contracting.
WHEREFORE, Defendant prays for judgment as follows:
1. That Plaintiffs take nothing by their Complaint, and that the Complaint be dismissed with prejudice;
2. For Defendants' costs of suit herein; and
3. For such other, further or different relief as the Court deems just and proper.
Dated: January 8, 2013
KATTEN MUCHIN ROSENMAN LLP
DAVID HALBERTSTADTER
DANIELLE RAYMOND
By [signed] David Halberstadter
Attorney for Defendant BLUE ORBIT PRODUCTIONS, INC.
[NOTE: A Case Management Conference has been set for April 9, 2013]
And I don't mean me!
Blue Orbit's Answer to the Complaint states unequivocally that a Mistake was made, either a mutual mistake, or a mistake by the Defendant that Plaintiff knew, or should have known at the time of contracting. After all, what is Pay or Play but Take it And Go if things don't work out? Not "And we'll also pay you for a SECOND season" and all the other expenses that were never incurred?
The intent of the parties is a key element of any contract. But it's hard to be sympathetic to a production company like Blue Orbit that pressured its employees to work virtually around the clock for no additional money, according to a class action suit filed a few years ago on behalf of three employees.
That case was settled out of a court and we never heard a peep about the terms (or even the fact of the settlement), so it wouldn't be surprising if this is also settled out of court.
As to the ethics of filing a lawsuit to take advantage of someone's mistake, everyone--including the trier of fact--can make their own decision.
In its Answer to Complaint, Blue Orbit argues that Cheryl herself does not have standing to join the lawsuit, as the contract was with CC Entertainments Ltd.
Any more news about this lawsuit? I wonder how long it will drag out for.