Does the Statute of Frauds Bar the Dailykos Contract Claim?

Perhaps so.  Read the complaint.  It alleges, in relevant part:

16. Shortly after the 2008 election, Plaintiffs entered into negotiations withResearch 2000 for a long term, multi-poll deal that included a weekly “State of theNation” poll and state/race specific polls as requested by DailyKos through KosMedia. The agreement was reached orally, requiring Kos Media to make lump-sum payments twice in 2009 as well as an additional large payment in December 2008 atthe initiation of the agreement.
21. In December 2009, Kos Media and Research 2000 negotiated a new agreement for 2010, a federal election year, increasing the cost per poll performed and continuing the weekly “State of the Nation” poll.
Assuming that the contract is governed by California law, and its statute of frauds, I wonder why Cal. Civ. Code 1624(a) doesn’t apply and make the alleged contract unenforceable unless there are “notes[s] or memorand[a]” which mark the deal’s terms in emails which Kos Media  LLC has not disclosed.  The agreement was a long-term deal, not to be completed within a year, so it seems to fall under the traditional ban against such oral agreements.
This doesn’t mean that Kos doesn’t have an equitable estoppel claim, or that the other fraud-based assertions in the suit lack merit. But it just struck me (and others)  that such a pricey deal was concluded with so few formalities.

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5 Responses

  1. Random 1L says:

    Payment was made and accepted, which is sufficient evidence of a contractual relationship to substitute for a writing under the Statute of Frauds.

    At least that’s what my outline says. 😀

  2. Dave Hoffman says:

    You kept your outline? That’s love!

    The fact that payment is made doesn’t do a thing to confirm the existence of the executory portion of the contract. How could it?

  3. Random 1L says:

    Check the name-I was using that outline to study just a month and a half ago. 😀

    NOTE: The payment received and accepted substitute is part of the UCC, so please assume I’m arguing from analogy here.

    The SoF defense would work had substantial performance by both parties not occurred. Let’s not turn the SoF into something ludicrous: the Court is not required to believe that R2000 delivered poll results (no matter how suspect) and Kos paid them for those poll results absent any kind of contractual relationship.

    The key here (at least as it seems from scanning the complaint) is that Kos isn’t claiming expectancy damages for polls to be performed in the future for which he had not paid. He’s claiming breach of warranty and misrepresentation on the polls for which he HAD paid. The executory nature of the future polls is irrelevant to Kos’ complaint.

  4. Dave Hoffman says:

    Don’t be embarrassed by your love for the best 1L course. I still have my 1L contracts outline from 1998, little good it did me in Scott Brewer’s class.

    In any event, looking over what the complaint is requesting, you may be right. To the extent he is seeking damages for earlier polls conducted and paid for, evidence of payment would probably satisfy — I took a very quick look at california caselaw on service contracts, so if others disagree, chime in.

  5. Random 1L says:

    No embarrassment at all. Contracts with Wild Bill Henning was a good time.
    I definitely agree that for Markos to do business in this manner is kind of foolish. The guy even has a JD, so it’s not like he doesn’t know the pitfalls of oral contracts.