The 4th U.S. Circuit Court of Appeals hears the fewest oral arguments and issues the fewest published opinions of the federal circuit courts. Its decision earlier this week affirming a partnership deal for a TV series raises the question of just what its standard for publishing an opinion might be.
This one appears to have it all – big bucks, prominent attorneys, prominent parties – everything perhaps except a novel legal issue, since the case turns on whether an ambiguous telephone call can be construed as an oral contract. Yet the 49-page panel opinion, followed by a short dissent, is unpublished.
The plaintiff, a South Carolina real estate broker who claimed he came up with the idea for A&E’s “Flip This House,” was represented by William “Billy” Wilkins, former chief judge of the 4th Circuit. A&E was represented by former U.S. Attorney General Michael Mukasey.
At stake was a $4-million jury verdict for the broker who contended he made a deal to split profits for the reality TV show based on a telephone conversation with a network executive.
The proof of a deal came down to the meaning of one sentence. Richard Davis was pitching his plan to split profits for a show about buying, fixing and reselling homes. On the phone was Charles Norlander of A&E. Davis said he finally persuaded Norlander to bite on the project, as indicated by Norlander’s comment, “Okay, okay, I get it.”
The case turned on whether that one sentence, in the context of a long conversation and A&E’s later development of the show, sealed a deal for a 50-50 split of revenues. The jury said yes. The 4th Circuit majority agreed the evidence was sufficient. Dissenting Judge Allyson Duncan found support lacking.
By Peter Vieth & Alan Cooper