Soloway and Mohler Co-Author NYLJ Breach of Contract Article
Partner Todd Soloway, Chair of Pryor Cashman's Real Estate Litigation Group and Co-Chair of its Hotel + Hospitality practice, co-authored the New York Law Journal article entitled “Kesha, Freedom and Efficient Breach” which appeared on May 11, 2016. Associate Bryan T. Mohler assisted in the article’s preparation.
While the case between pop singer Kesha and record producer Dr. Luke continues to command significant media attention and public outcry after the denial of Kesha’s request for a preliminary injunction blocking Dr. Luke and his related companies, along with Sony Music Entertainment, from enforcing exclusive recording and publishing agreements entered into by Kesha, this case once again invokes the legal principles of “efficient breach” and the inability of a party to compel the specific performance of a personal services contract.
As Kesha’s declaration that “slavery was done away with a long time ago” as a basis for her appeal of the denial of her request for a preliminary injunction illustrates, commercial actors continue to wrestle with whether a party may be compelled to perform under a personal services contract or, as Oliver Wendell Holmes, Jr. famously wrote: “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, – and nothing else.”
In the hospitality industry, these legal doctrines recently have been unsuccessfully challenged by hotel management companies seeking judicial enforcement of long-term management contracts with hotel owners. This article explores these legal concepts in the context of recent New York cases.
