2017-2018 Negotiation Competition

Complete National Problem Set (Four Rounds)

Contains Confidential Information

Written by Erin Mean, University of Oklahoma College of Law

This work by American Bar Association is licensed under a Creative Commons

Attribution-NonCommercial 4.0 International License.

1
 American Bar Association
Law Student Division
2017-18 Negotiation Competition
National Security Law
National Competition
Round 1

HomeLove, Ltd. and Elias Fagan

CONFIDENTIAL SUMMARY FOR JUDGES

These tables summarize each party’s goals and priorities for the negotiation, highlighting
the areas for potential agreement and disagreement.

Issue #1: What Type and How Many Housing Units Will be Pledged
HomeLove Fagan Possible Outcome
HomeLove would like for Fagan would like for the total number HomeLove’s attorneys will
the agreement with Fagan of units covered by the parties’ likely try to get a
to allow for the use of a agreement to be between 4 and 8 of commitment for a larger
total of 2-4 of the housing his properties, and he wants to offer number of the 6+ occupancy
units that can house 6 or no more than 3 of the units that can units and fewer of the
more people, along with house 6 or more people. If the final smaller units. Fagan’s
some of the smaller units, agreement uses only 1 or none of the attorneys will likely offer
or at least 7 total units, 6+ occupancy units, Fagan will more of the smaller units and
even if most of the units commit more total units, such as 7 or very few, if none, of the 6+
are smaller units. The total 8 units. The more 6+ occupancy units occupancy units. The final
number of housing units that the parties agree to use, the fewer configuration of the number
will include both the number of total units Fagan will and type of housing units
subsidized units and the commit to. offered will likely vary quite
volunteered units. a bit from round to round.

Issue #2: Amount of the Subsidy That HomeLove Will Provide to Fagan
HomeLove Fagan Possible Outcome
HomeLove will offer between Fagan would like to receive between The parties will likely
$150,000 and $350,000 as a $250,000 and $450,000 as a subsidy agree for HomeLove to
subsidy to Fagan to help defray from HomeLove to help defray some pay Fagan a subsidy of
some of Fagan’s lost costs in of the lost costs of volunteering his between $250,000 and
offering housing as part of housing toward HomeLove’s $350,000.
HomeLove’s initiative. The initiative. If HomeLove offers a
more housing that Fagan subsidy on the higher end of Fagan’s
volunteers, the less subsidy scale, Fagan will likely offer a little
money that HomeLove will less in volunteered housing.
offer.

2
 Issue #3: Length of Time That The Housing Will be Offered
HomeLove Fagan Possible Outcome
HomeLove would like for For the subsidized housing units, For the subsidized housing
the larger units (6+ Fagan is willing to offer the units for units, the parties will likely
occupancy) to be available between 4 and 11 months, with larger agree that the larger units (6+
for 10-12 months, while units (6+ occupancy) being available occupancy) will be offered
the smaller units (less than for between 9-11 months and smaller for either 10 or 11 months
6 occupants) may be units (less than 6 occupants) being and the smaller units (less
available for as little as 6 available for between 4-8 months. As than 6 occupants) will be
months (though more for any housing units that are offered for between 6-8
would be better). considered to be “volunteered” by months. The parties should
HomeLove is not willing to Fagan, he will insist that he be able to also agree that Fagan may
agree for any subsidized make those units available for any offer his volunteered housing
housing to be offered for time period he chooses, even if it is for as much time as he
less than 6 months, but shorter than HomeLove may like. wishes.
concedes that Fagan may
volunteer certain units for
any time period he
chooses.

Issue #4: Costs for Repairing and Cleaning the Housing Units
HomeLove Fagan Possible Outcome
For the subsidized units, Fagan would like for HomeLove to The parties will likely agree
HomeLove is willing to agree to pay between 60-100% of the for HomeLove to pay for
agree to pay for between costs of repairing and cleaning the between 60-90% of the costs
50-90% of the costs of subsidized units after the refugees of cleaning and repairing the
repairing any damage to move out. Fagan is willing to cover subsidized units, and that
the units and normal wear all of the costs of cleaning and Fagan will cover all of the
and tear and cleaning after repairing the units that he volunteers. costs of cleaning and
the refugees move out. repairing the units that he
HomeLove is not willing to volunteers.
cover these same costs for
the volunteered units.

3
 Issue #5: Non-Disclosure Agreement

HomeLove Fagan Possible Outcome

HomeLove wants the Fagan’s facts do not mention a non- The parties will likely agree
agreement with Fagan to disclosure agreement, but he should that Fagan will be subject to
include a non-disclosure be willing to agree to this, as nothing a non-disclosure agreement
agreement as to both the in his facts suggests that he is regarding the existence and
existence and amount of opposed to it or that he wants to share amount of the subsidy that he
the subsidy that HomeLove information about his subsidy from will receive from
will pay to Fagan. HomeLove. HomeLove.

General Information for Both Parties

In the past several years, millions of refugees have fled from their war-torn homes in the
Middle East to countries around Europe, and many of these refugees are still displaced today.
The high number of individual and family refugees searching for safe, temporary housing or
being moved from camp to camp has been a consistent news story over the years. The instability
in housing for refugees living temporarily in cities around Europe and other places in the world
has been striking to Tony Maddron, the CEO of HomeLove, Ltd. HomeLove is an online
company that provides a room-sharing platform for people across the globe, allowing individual
and commercial property owners to rent out their homes, apartments, hotel rooms, or even extra
bedrooms to travelers. Though HomeLove itself does not own any lodging, it has over 1,000,000
lodging listings in cities all over the world.

After reading yet another news story about refugees in crisis, Maddron felt moved to do
what he could to help. At his direction, HomeLove publicly pledged to provide free, short-term
housing for 300,000 refugees over the next 5 years in an effort to help displaced individuals and
families reintegrate into society. As part of its public pledge, HomeLove issued a statement to its
listed property hosts asking for volunteers to open their listed properties to those in need. Though
over 4,000 hosts in various cities and countries have volunteered their properties for free as part
of HomeLove’s pledge, the company has found that certain cities have a higher need for refugee
housing than others because these cities have a higher population of refugees. In an effort to help
provide more housing in cities where the most refugees are in need, Maddron decided that
HomeLove would subsidize some costs of the housing needed in certain cities to help fill the gap
between the free housing offered voluntarily by hosts versus the need for temporary housing for
refugees.

The European city of Maldovia is one of the cities where stable and safe refugee housing
is in high demand. Though many of the HomeLove hosts with units in Maldovia have
volunteered housing, Maddron has decided that HomeLove will seek out more hosts in Maldovia
and offer to subsidize some of their housing for short-term use for refugees. One such host is
Elias Fagan. Through his property management company EF Management, which Fagan is the
sole owner of, Fagan owns a collection of properties in Maldovia that can house approximately

4
100 people. The properties are a collection of apartment units, individual houses, and duplexes
that are spread throughout a defined area of the city, with all of the housing units being within a
15-mile radius of each other.

Maddron reached out to Fagan and invited him to coffee to discuss a proposal for Fagan
to offer some portion of his available housing units on a short-term basis either for free or for a
subsidized rate to refugees living in the city of Maldovia. At the meeting, Maddron passionately
shared his vision of the role that HomeLove (and indeed, humankind) should play in helping
fellow human beings in distress. Fagan, moved by Maddron’s impassioned plea for help in
providing stability and comfort to refugees, agreed that he could provide some of his housing
units towards HomeLove’s mission to temporarily house refugees living in Maldovia. At the end
of the meeting, the men agreed that Fagan would provide Maddron with more specific details of
what housing units he had, what occupancy each unit could hold, and approximately how much
each unit would rent for on the open market.

A week after their meeting, Fagan provided Maddron with the following chart, which
shows information about all of Fagan’s housing units in the City of Maldovia:

Housing Unit Number of Occupancy Limit Weekly Rent per

Type Units per Unit Unit
4-bedroom house 3 8 $2,000
3-bedroom house 2 6 $1,700
2-bedroom house 2 4 $1,500
$1,800 total for the
8 total for the duplex - duplex - $900 for
2-bedroom duplex 2 4 for each side each side
$2,200 total for the
12 total for the duplex duplex - $1,100 for
3-bedroom duplex 1 - 6 for each side each side
1-bedroom apartment 7 2 $1,200
2-bedroom apartment 4 4 $1,400

Excited about the prospect of partnering with Fagan to provide housing to some of the
many refugees in Maldovia, Maddron and his team at HomeLove studied the chart for several
days in relation to the city’s need for refugee housing. Maddron then called Fagan and asked to
set a meeting to discuss the specifics of what housing would be offered as part of HomeLove’s
pledge and on what terms. Fagan agreed, and the men set a date for the meeting. To represent the
parties at the meeting, HomeLove is sending its company attorneys and Fagan is sending the
attorneys who help him with landlord-tenant, contract, and other issues related to managing the
properties.

At the outset, both parties have instructed their attorneys that, although the properties are
located in Europe, general U.S. contract law should govern any agreement that the parties reach.
HomeLove is incorporated and headquartered in the United States, Fagan lives in the United

5
States, and all meetings held by the parties regarding the use of Fagan’s properties as part of
HomeLove’s initiative to help refugees will have taken place in the United States.

Confidential Information for HomeLove and Tony Maddron

Tony Maddron is thrilled that Fagan responded positively to Maddron’s invitation to join
in HomeLove’s pledge to provide free, short-term housing to refugees. Maddron is proud of his
company’s efforts to help with the humanitarian crisis posed by the displacement of millions of
individuals and families around the world. Maddron is also aware of the security and safety risks
associated with having a large, transient population within a city, and he hopes that offering
some form of stable housing, even if just short term, will alleviate some of those risks. In looking
at Fagan’s list of properties in Maldovia, Maddron is excited by the possibilities that are
available to help families in particular, as Fagan owns many properties that could be used to hold
an entire family of refugees. Some of the most heartbreaking stories that Maddron has heard out
of the refugee crisis are stories of families being split apart, not knowing if or when they would
be reunited.

At their initial meeting, Maddron and Fagan had agreed that their best approach would be
to work together to maximize the housing offered to refugees. The parties’ vision is that Fagan
would offer some of his housing as a volunteer in the pledge initiative and HomeLove would
provide a subsidy to Fagan to help make more of his housing units available for refugee housing.
Maddron’s ultimate goal for HomeLove in partnering with Fagan is to find a way to provide as
much housing as possible for refugees. Though Maddron knows that any combination of housing
units will be useful, Maddron would like to reach an agreement with Fagan that, between both
the subsidized and volunteered housing, uses 2-4 of the units that can house 6 or more people,
along with some of the smaller units. Maddron expects that many of the refugee families in
Maldovia include both nuclear family units and extended family members and thus hopes to
provide housing that can accommodate larger groups. But Fagan may be reluctant to commit too
many of his larger units to the agreement because a larger portion of his revenue stream is likely
dependent upon rental income from the larger units. If HomeLove’s attorneys are unable to
receive a commitment for 2-4 of the 6+ occupancy units, Maddron would like them to get a
commitment of at least 7 total units to help provide housing for as many refugees as possible,
again with the total number of units being a combination of both subsidized and volunteered
housing.

As far as the subsidy that HomeLove will offer, based on the chart that Fagan provided,
Maddron has calculated that, if Fagan rented out all of his units every week of the year, the rental
income would exceed $1.6 million annually. Maddron has not pried into the details of Fagan’s
income from the properties, but Fagan had implied that his housing units collectively are
typically not rented out all year round. Maddron wants to commit to a subsidy amount that will
help defray a meaningful percentage of Fagan’s lost income from the properties that are
volunteered. To that end, Maddron has instructed HomeLove’s attorneys that HomeLove is
willing to pay anywhere from $150,000 to $350,000 as a subsidy to Fagan for housing. On
behalf of HomeLove, Maddron has earmarked a total of $3.5 million dollars to be used as
housing subsidies as part of its pledge to help refugees, and Maddron wants to reserve most of

6
that money to help provide housing in other cities and to hopefully be able to continue providing
housing for several years to come as part of HomeLove’s initiative. Maddron isn’t concerned
about knowing exactly how much income Fagan receives annually from his properties, but feels
confident that offering up to $350,000 should be a significant enough subsidy to help defray
some of Fagan’s lost income in offering his housing toward the refugee crisis. Maddron has
further instructed HomeLove’s attorneys that the more generous Fagan is in volunteering
housing, the less subsidy money should be offered to him. Maddron wants to reduce the subsidy
offer based off of Fagan’s volunteer offer so that the difference can then be put “back in the pot”
to be used to help refugees in other ways and places. Maddron is leaving it in the attorneys’
discretion as to when and how to adjust HomeLove’s subsidy offer based off of Fagan’s
volunteer offer, and he has stressed to them that this partnership with Fagan will be a “win-win-
win scenario” for everyone involved.

Another term of the agreement that the parties should discuss is the length of time that the
housing will be offered. HomeLove’s pledge is to provide “short-term housing,” so Maddron
does not expect that Fagan will pledge to provide housing for longer than a year. Ideally,
Maddron would like to see Fagan’s units available between 8-12 months to provide the greatest
amount of stability to the occupants, and each individual units to vary in the time period of
availability. For the larger housing units (6+ occupancy), Maddron would like to see an
availability time period of 10-12 months as a way to help keep families together for the longest
amount of time possible and to promote minimal disruption in the lives of children. For the
smaller housing units (less than 6 occupants), Maddron would be willing to agree to an
availability time period as low as 6 months (though more would be better), but is not willing to
agree that any of the subsidized housing will be offered for less than 6 months. If Fagan wants to
offer his volunteered housing for less than 6 months, Maddron understands that he is free to do
so and will be grateful for the offer regardless of the shorter time period.

Additionally, Maddron expects that Fagan may ask HomeLove to help cover the cost of
repairing any property damage that the units may sustain while the refugees are living in them
and the cost of performing normal wear and tear and cleaning in the units after the refugees
move out. In their initial meeting, Fagan had expressed concern over having to pay these
expenses out-of-pocket for such a large number of units because the refugees would not be
putting down deposits when they moved into the units. Maddron thinks this is a valid concern
and he is willing to have HomeLove commit to paying some or even all of the costs of repairing
and cleaning the subsidized units, but not the volunteered units. Maddron has instructed
HomeLove’s attorneys to offer to pay between 50% and 90% of the costs for the subsidized
housing units.

Finally, Maddron would like for the contract with Fagan to include a non-disclosure
agreement as to both the existence and amount of the subsidy that HomeLove will provide.
Maddron’s intention is that HomeLove’s pledge to provide housing will be driven largely by
volunteer hosts who offer their housing for free, and any public statements by Fagan that
HomeLove is willing to offer a subsidy for housing would likely undermine the volunteer effort.
Maddron wants to retain HomeLove’s ability to exercise discretion in seeking out certain hosts to
offer subsidies for housing.

7
Confidential Information for Elias Fagan

Elias Fagan is inspired by HomeLove’s admirable pledge to help provide housing to the
thousands of refugees who are displaced around the world, and he is happy that Maddron
approached him individually to discuss partnering to help provide housing for refugees in
Maldovia. Fagan knows that his collection of properties in the city make him uniquely situated to
provide help, and he is confident that his negotiation with HomeLove will produce an agreement
that will provide relief and comfort to the refugees who are able to benefit from it.

That being said, Fagan’s properties generate quite a lot of income for himself and the
property management business that he owns, EF Management, Inc. EF Management is the owner
of record of all of the properties listed in the chart that Fagan provided to HomeLove, and Fagan
is the sole owner of EF Management. Fagan has full authority to make decisions about the
properties as they are managed by EF Management, but any final agreement with HomeLove
should be through EF Management, rather than Fagan himself. In terms of the income that
properties generate, if EF Management rented out all of the units every week of the year, the
rental income would exceed $1.6 million annually. However, the properties are typically not
rented every single week of the year. Maldovia is a popular tourist destination, which creates a
stable rental market for the properties, but the tourist seasons ebb and flow, cancellations occur,
etc., and the properties are sometimes left open. Though the total annual income from the
properties varies from year to year, EF Management will typically make about $1.3 million in
annual gross rental revenue from the Maldovia properties, which is used to pay mortgages on the
properties, various other expenses related to maintaining the properties, and to provide Fagan
with a salary, among other things.

At their initial meeting, Maddron and Fagan had agreed that their best approach would be
to work together to maximize the housing offered to refugees. The parties’ vision is that Fagan
would offer some of his housing as a volunteer in the pledge initiative and HomeLove would
provide a subsidy to Fagan to help make more of his housing units available for refugee housing.
While Fagan does want to provide housing for a meaningful number of refugees, he cannot
overcommit his properties to the HomeLove initiative while still maintaining a healthy balance
sheet. Therefore, Fagan has instructed his attorneys that he would like to reach an agreement
with HomeLove that, between both the subsidized and volunteered housing, uses 4 to 8 of his
properties. Specifically, Fagan wants to offer no more than 3 of the units that can house 6 or
more people. The larger units make up a larger portion of EF Management’s revenue stream, and
Fagan isn’t willing to give up very much of that income as part of this initiative. If his attorneys
are able to reach an agreement with HomeLove that uses 1 or none of the 6+ occupancy units,
then Fagan has given his attorneys permission to offer a total number of units that is on the
higher end of his limit, such as 7 or 8, since the units involved in the agreement will be the
smaller, lower revenue-generating ones. However, the more of the 6+ occupancy units that his
attorneys commit to, the fewer total units his attorneys should offer.

As far as the amount of the subsidy that HomeLove will provide to EF Management,
Fagan has looked over his company’s financial information and believes that EF Management
would need a subsidy of between $250,000 and $450,000 to defray enough of the lost rental

8
income from the properties to make EF Management’s endeavor with HomeLove work. Fagan
intends to volunteer a good portion of the housing, and he suspects that the more housing he
offers on a volunteer basis, the less subsidy money he will likely receive. But if HomeLove is
willing and able to offer a subsidy on the higher end of his desired scale, Fagan has instructed his
attorneys to offer less in volunteered housing. After all, Fagan does have a business to run, and
the business needs a certain amount of income to stay in good standing.

Another term of the agreement that the parties should discuss is the length of time that the
housing will be offered. Fagan wants to limit the offer of any of his housing to less than a year,
and he believes that Maddron will generally be amenable to this. HomeLove’s pledge is to
provide “short-term” housing, which in Fagan’s mind implies a time period of one year or less.
In Fagan’s mind, for any of the housing units that he volunteers to offer, he should be free to
decide for what time period he is willing to make those units available, no matter how short the
time period may be. As for the subsidized housing units, Fagan recognizes that Maddron may
insist on certain time frame parameters. To help accommodate this possibility, Fagan is willing
to offer the subsidized housing units for at least 4 months and is willing to consider offering
some of the units for up to 11 months. Fagan is willing to offer the larger units (6+ occupancy)
for a time frame of between 9-11 months because there will be fewer of them, but has instructed
his attorneys that the smaller units should be offered for a time frame of 4-8 months.

As a final matter, Fagan is concerned about possible property damage to the housing
units, especially since the refugees staying in the units will not be putting down deposits and
Fagan will likely have no or little recourse against them should they damage the property. In
addition to covering any potential larger property damage to the units, Fagan will have to
perform normal “wear and tear” repairs and cleaning on each of the units once they are
unoccupied. Again, without money from deposits to cover these expenses, EF Management will
be paying these costs out of pocket. Fagan would like for HomeLove to agree to cover some of
the costs of any property damage, normal “wear and tear” repairs, and cleaning after the refugees
have moved out. Fagan hopes that his attorneys can get HomeLove to commit to paying 100% of
the costs for cleaning and repairing each subsidized unit after the refugees move out, and Fagan
would cover 100% of the costs for cleaning and repairing the units that he volunteers. If
Maddron is reluctant to make a commitment of covering 100% of the costs for the subsidized
housing, Fagan is willing to accept a commitment for HomeLove to cover as little as 60% of the
costs, which Fagan thinks is fair considering that he is willing to cover in full the costs for the
volunteered housing.

9
 American Bar Association
Law Student Division
2017-18 Negotiation Competition
National Security Law
National Competition
Round 2

The Strategic Security Institute and Dr. Hannah White

CONFIDENTIAL SUMMARY FOR JUDGES

These tables summarize each party’s goals and priorities for the negotiation, highlighting
the areas for potential agreement and disagreement.
Issue #1: Length of Time That White Will Work for SSI
SSI White Possible Outcome
The SSI wants White to White wants to commit to full-time The parties will likely
commit to working on the work for the SSI for a timeframe of agree that White will work
Project full-time for between between 6-18 months, and she full-time for the SSI for
1-2 years. The SSI also wants would prefer for her full-time between 12-18 months, and
White to agree that, once her commitment stay as close to 1 year that she will finish any
full-time commitment ends, as possible. White is additionally remaining work on the
she will agree to work on the willing to commit to doing work for Project on an as-needed
Project on an as-needed basis the task force on a part-time or as- basis after her full-time
until the Project is complete. needed basis beyond her full-time commitment ends.
commitment.

Issue #2: White’s Compensation

SSI White Possible
Outcome
The SSI will offer White compensation of between White hopes to The parties will
$4,500 and $6,500 a month for her full-time work on receive likely agree that
the Project. The SSI will not offer any benefits to compensation of White will be
White. between $5,500 paid between
and $7,500 a $5,500 and
Though the fact patterns do not address whether and month for her $6,500 for her
how to compensate White for any work that she does work on the full-time work
on an as-needed basis, the students representing SSI Project. White on the Project
have been told that they are authorized to offer does not expect to and that she will
compensation to White for any “as-needed” work that receive any not receive
she performs and that they may structure that benefits from the benefits.
compensation however they see fit. SSI.

10
 Issue #3: Travel Requirements for White
SSI White Possible Outcome
The SSI wants White to agree to White would like for her The parties will likely agree for
spend between 5-10 months on work on the Project to White to commit to between 5-8
overseas work for the Project, and require overseas travel of months of overseas travel for
the SSI is flexible about how and between 3-8 months, and her work, with the SSI giving
when White performs her overseas she would like at least 2 her at least 2 weeks’ notice of
work, such as allowing her family weeks’ notice of any travel any required travel and
to accompany her when she obligations that the SSI allowing her family to travel
travels. If White commits to spend may require. Additionally, with her. If White commits to 7
7 or more months traveling White would like for her or 8 months of travel, the SSI
overseas, the SSI will agree to pay family to be able to travel should agree to pay for her
for her family’s travel expenses. with her, if desired. family’s travel expenses.

Issue #4: Ownership of Intellectual Property Rights

SSI White Possible Outcome
The SSI will insist that it retain the White is willing to give up The parties will likely agree that
copyright to all written work that the copyright for any the SSI will have the copyright
is produced by the task force that written works that she to all written works that White
White will serve on. The SSI is produces or helps produce authors or co-authors for the
willing to give White credit as an for the task force to the task force. The parties will also
author or co-author of any written SSI, but she would like to likely agree that the SSI will
works that she produces for the retain the ability to get name White as an author or co-
task force, and the SSI is flexible credit for her authorship author and grant White
on whether White may publish or (or co-authorship) and to permission to pursue
republish, with express permission pursue publication publication opportunities, with
from the SSI, any of her written opportunities for any express permission from the
works that she authors while writings she produces for SSI, for the written works she
serving on the task force. the task force. produces for the task force.

General Information for Both Parties

The Strategic Security Institute (SSI) is an American think tank focused on national
security and global infrastructure that, over the past three decades, has served as a bipartisan,
nonprofit research organization dedicated to providing strategic insights and policy solutions to
help decision makers chart a course toward a better world. The SSI’s large network of affiliated
scholars, experts, and consultants conduct research and analysis to develop policy initiatives that

11
look to the future of an interconnected world and anticipate needed changes in how the U.S.
should approach strategy regarding a multitude of sensitive issues that affect security.

Currently, the SSI is developing a task force that will focus on how to build resilience in
countries that are especially vulnerable to catastrophic events, whether the events stem from
natural disasters, political unrest, economic failure, or failures in cybersecurity. Gregory Main, a
long-time director of the SSI’s Humanitarian Agenda, has been named as the Senior Advisor of
the new task force, which the SSI has recently named the Global Sustainability Project (the
“Project”). One of Main’s immediate responsibilities is to assemble a team of experts for the
Project. Main has already selected a handful of team members for the Project from within the
SSI, but he has also begun looking to acquire outside talent to serve in a short-term, contract-
based role on the Project.

One such person that Main has identified as a well-suited candidate to serve on the
Project is Dr. Hannah White. Dr. White, who was previously a professor at the University of
Calivada, currently serves as a consultant for a private firm called CSR (Corporations for Social
Responsibility) that performs research on the impact of business on climate change and offers
individualized solutions to companies looking for ways to decrease their carbon footprint. Dr.
White’s areas of expertise include understanding human-environment relations for water
governance and urban sustainability, including specifically examining human and social aspects
of sustainability, environmental management and planning, and climate change impacts on water
stability in impoverished regions. Main reached out to White via email to explain the Project and
invite White to discuss whether White could fill a potential role on the SSI’s work on the Project.
White quickly responded to Main, and the two engaged in a series of Skype calls, emails, and
telephone calls about the Project. White expressed enthusiasm about serving as a member of the
Project and tentatively agreed that she wished to join Main and the other members of the SSI in
their important work.

In the conversations between Main and White, one main topic of discussion was how
White would adjust her work with CSR around the work that she would perform on the Project if
selected to serve as a member of the team. Main has explained to White that his goal is for each
person named as an outside consultant on the Project to be able to work full-time in that capacity
for at least one year. White responded that she would be concerned as to how she will fulfill her
obligations in her consulting role at CSR if she accepts a role on the Project.

Despite her concern about balancing her work for CSR with the obligations she would
have to the Project if selected, White is interested in trying to find a way to make herself a viable
candidate for consultant work on the Project. White knows that the SSI is a respected
organization and she admires the work it does in the area of developing national security policy
recommendations, and she believes that affiliating herself with the SSI on one of its projects will
serve as a major boost to her career. Curious as to how the project manager at CSR whom White

12
reports to would feel about her pursuing this opportunity, White scheduled a long sit-down
meeting with him and explained specifically what her work on the Project would involve and her
enthusiasm in wanting to further explore the opportunity.

White’s project manager was receptive to her interest in working on the Project. Over the
course of several days, White and her project manager discussed and negotiated a set of terms
and conditions for White to suspend her work as a consultant for CSR so that White may pursue
a position as a consultant on the Project. Having an agreement with CSR in place, White then
contacted Main and asked to schedule a more formal meeting to discuss what the specific terms
of her role on the Project might be and to hopefully negotiate a satisfactory agreement between
the parties. At the meeting between White and Main, White will be represented by her own
personal attorneys, and the SSI will be represented by attorneys from its general counsel.

Confidential Information for the Strategic Security Institute and Gregory Main

Gregory Main is excited to be assembling a team of experts for the Project and has
agreements in the works with several individuals whom he thinks will serve a vital role in this
sustainability initiative. Main is especially impressed with Hannah White’s passion for her area
of expertise in issues relating to water stability and environmental management and can see that
she is becoming an established and respected scholar in these areas. He knows that White’s
commitment to the Project must accommodate her existing obligations with CSR, and he is
hopeful that the parties will be able to reach satisfactory terms to allow White to serve on the
task force for the Project.

That being said, Main has instructed the SSI’s attorneys that the SSI cannot be entirely
flexible to White’s needs for accommodating her obligations with CSR around the obligations
she would have for her work on the Project. Main needs to be assured that everyone who
commits to work on the Project is able to meet certain minimum obligation requirements so that
the Project can achieve its objectives in a timely manner. Main knows that one of the larger
issues for White will be the amount of time for her commitment to the Project. Main expects that
the work that the task force will do on the Project will take anywhere from 1-3 years to complete.
Ideally, Main would like for every person who joins the task force to commit to working full-
time on the Project until its completion, but he knows that it is unrealistic to expect that the
outside consultants (i.e. non-SSI employees) on the task force, such as White, will be able to
leave their regular positions for an unknown amount of time that could last up to several years.
Therefore, Main has instructed the SSI’s attorneys that, to join the task force, White does not
need to commit to working full-time on the project indefinitely, but she must be willing to
commit to at least one year of full-time work on the Project. Main further explained that if the
SSI’s attorneys are able to get White to commit to up to two years of full-time work on the
Project that would be preferable, but not required. Main would also like to include a term

13
providing that once White completes her full-time commitment, White will continue to work on
the Project on an as-needed basis until the Project is completed.

Another term that must be discussed at the meeting is what White’s compensation will be
for her work on the Project if she joins the task force. To help incentivize outside talent to join
the task force, Main has the authority to offer a financial stipend to outside consultants for their
work on the Project. The stipend that Main has authorized the SSI’s attorneys to offer to White
likely will not surpass or even rival her regular salary; the SSI is, after all, a non-profit
organization. Nonetheless, the SSI’s attorneys are authorized to offer White a stipend of between
$4,500 and $6,500 a month for her full-time work. Main considers White to be a top prospect for
the task force, so he is happy to pay her a stipend that is on the higher end of his authorized
range, but if White is willing to accept a lower stipend, then that is all the better for the Project’s
budget. Benefits are not at issue because, as a current contractor for CSR, White has explained
that she already provides her own health insurance and retirement plans, and the SSI is not in a
position to offer benefits.

Additionally, the parties should discuss whether White is able to work overseas on certain
aspects of the Project. Main had told White during one of their early discussions that her work on
the Project would likely require her and other members of the task force to spend time in some of
the countries that would be the focus of their work. White expressed some hesitation to making a
commitment to spend a large amount of time overseas working on the Project, but the parties had
never discussed this topic again since then. Main is sure that White understands that the nature of
the work that the task force will be doing inherently involves visiting some of the countries that
will be the focus of the task force’s work. Therefore, Main would like for any agreement with
White to include a provision for White to commit to spending at least 5 months on overseas work
related to the Project. In the best case scenario, Main would like for White to commit to spending
up to 10 months on overseas works, and Main is open to being flexible about how and when
White performs her overseas work. For example, if White would prefer to do some of the
overseas work with her husband or family accompanying her, Main is willing to allow that and
he has given the SSI’s attorneys discretion to create an arrangement that will accommodate
White’s needs. If White wants her family to travel with her, Main has additionally authorized the
SSI’s attorneys to offer to pay for her family’s travel expenses if White commits to 7 months of
travel or more.

Finally, another important point of negotiation should be the ownership of any writings,
reports, memorandums, or articles that the task force may produce during the course of its work.
A non-negotiable term of any agreement between the SSI and White will be that the SSI will
retain the copyright to all written work that is produced by the task force related to the Project,
no matter who the specific author or authors may be. Main is not sure that the written works
produced by the task force would ever be published as a collective work that would qualify any
individual’s writing on the task force as a “work made for hire,” but nonetheless, Main has
instructed the SSI’s attorneys to stand firm that the SSI must own the copyright to any writings

14
that White produces as part of her work on the task force. Main is certainly willing to give
White credit as an author or co-author for any of the written works that she produces while
serving on the task force, and Main is willing to be flexible on whether White could publish or
republish, with express permission from the SSI, any of the written works that she authors while
serving on the task force. So long as any agreement with White regarding the written works
produced by the task force provides that the SSI retains the copyright to the written works, Main
is leaving it in the SSI’s attorneys’ discretion as to what permissions they may grant White on
the works that she authors or co-authors as a member of the task force.

Confidential Information for Dr. Hannah White

Dr. Hannah White was flattered and intrigued when Gregory Main approached her with
information about the Project and invited her to engage in discussions about her possible
inclusion on the task force that would work on the Project. White cares deeply about global
sustainability issues, particularly those that relate water stability, especially in impoverished or
underdeveloped regions of the world, and the human impact on environmental management.
White has spent years of her professional career researching these issues and traveling to areas of
the world most impacted by them, with a focus on providing solutions and recommendations that
are useful in the short-term, but also adaptable in a changing world. Because of her passion for
concepts related to sustainability, White would love to have her voice included on the task force.
The SSI does important work in many areas that affect both national and global security, and
White believes that the Project has the potential to influence important policy decisions about the
U.S.’s role in promoting sustainability worldwide.

White is pleased that her conversation with her project manager resulted in a satisfactory
agreement for White to temporarily suspend her consulting work with CSR so that she may
pursue this endeavor. In fact, the timing of Main’s invitation for White to work on the Project
couldn’t have been better. Two months ago, White and a team at CSR wrapped up a two-year
consulting project with over 50 tech firms, and the next big project that White hopes to work on
with CSR, colloquially referred to within CSR as SID (Sustainability Initiative for Developers) is
not quite ready to launch yet. SID is a project that White has been helping to develop for over a
year and one that she is highly invested in personally. Therefore, White wants to be careful in
how much time she commits to being away from CSR. Currently, the timeline for SID is for
CSR to launch it within the next six months, and the entire project is scheduled to last nearly five
years. One of the conditions of White’s agreement to suspend her work with CSR is that if she is
gone full-time for more than 18 months, she will forfeit her role on SID. Therefore, White is not
willing to commit to more than 18 months of full-time work on the Project with the SSI.

Thus, White’s decision in how big of a full-time commitment she will make to the Project
carries significant implications for the future of her work with CSR. White doesn’t want to
compromise her work on SID. But White also recognizes that an opportunity like the one she has

15
been offered with the SSI may only come around once in a career. If White takes a position on
the task force, she strongly believes that not only will her work help create important and
meaningful policy recommendations, but also it will pave the way for other opportunities like
this in the future. Therefore, White has instructed her attorneys that ideally, she would commit to
no more than 6 months of full-time work on the Project and that the rest of her work on the task
force would be completed on a part-time or as-needed basis. If White’s offer of a 6-month
commitment is not enough for Main, she is willing to commit to full-time work on the project of
up to the 18 months of leave that she received from CSR, but would prefer for her commitment
to stay closer to a year or less if possible.

From some of her previous conversations with Main, White knows that the SSI will offer
her a stipend for her work on the Project. White is not concerned with earning a high income for
this work because she believes in the importance of the work the task force will be doing and
knows that its impact on real people’s lives will be valuable. White will, however, need to
replace some of the income she will lose while taking leave from CSR because her pay will be
suspended while she is on her leave of absence. Currently, White’s salary with CSR is $120,000
a year. When Main discussed the stipend previously, he had talked about it being paid in monthly
increments. White’s salary broken down monthly is $10,000, but she does not expect that the SSI
will provide a monthly stipend of that much money. For her own comfort, White hopes that she
can negotiate a monthly stipend of $7,500, but she and her family could survive for a short time
on a monthly stipend of no less than $5,500. Benefits are not at issue because, as a current
contractor for CSR, White already provides her own health insurance and retirement plans.

Another important topic for White will be the ownership of any writings that she
produces during her work on the task force. As a former professor and expert in her field, White
still publishes scholarly work and is accustomed to retaining the copyright of her original written
work, such as scholarly articles, presentation papers, etc., and granting a license to publish to any
journals, reporters, or manuals where the written works are ultimately published. Of course,
White understands that many different kinds of agreements can be made between the author of a
written work and the publisher to determine who owns the work and who has the right to publish,
edit, or reproduce it. For example, there have been occasions when White has produced a writing
as part of a work commissioned by CSR that was considered a “work made for hire” where the
copyright was retained by CSR. Based on her understanding of copyright principles, White
doesn’t believe that any writings she produces for the task force would qualify as “works made
for hire” such that she would be required to give up the copyright for the work to the SSI.
Nonetheless, White wants to ensure that she retains enough rights in any writings that she
produces as part of her work on the task force so that she can (1) get credit for her authorship of
the writing and (2) pursue publication opportunities for her writings, should any come available.
Ideally, White would like to achieve these goals by retaining the copyright in any writings she
produces for the task force, but she expects that the SSI will likely want to hold the copyright for
all of the writings produced by the task force. Therefore, White is willing to give up any
individual copyright she may be entitled to in her writings for the task force so long as she is able
to retain enough rights in her written works so as to achieve her two goals stated above.

16
 A final matter that White wants to clarify as part of any agreement between her and the
SSI is what proportion of her work on the task force will need to be completed via overseas
travel. Main had told White during one of their early discussions that her work on the Project
would likely require her and other members of the task force to spend time in some of the
countries that would be the focus of their work. White expressed some hesitation as to making a
commitment to spend a large amount of time overseas working on the Project, but the parties
have not discussed this topic again since then. Earlier in her career, White spent a large portion
of her work traveling and in recent years, she has intentionally scaled back the amount of travel
she does for work to accommodate her role as a wife and mother to two young girls. White still
travels for work on a regular, though infrequent basis, and values having control over when and
how long she is away from home. White understands that travel will be a necessary part of some
of the work that she would perform on the task force and is willing to accept a commitment that
includes a moderate amount of travel. Therefore, White is willing to agree that her role on the
task force will require her to travel up to a total of 8 months. Even better for White would be for
the travel commitment for the task force to be as low as 3 months, but she understands that Main
may insist that she be available to travel for a longer period of time than that. Regardless of the
amount of time that White commits to traveling on behalf of the task force, White would like to
receive at least 2 weeks’ notice of any travel obligations that Main would expect of her. As an
additional matter, White would like her attorneys to ask whether Main would object to her
husband and children traveling with her if their schedules permitted, as having her family come
with her would lessen the sting of White’s having to be away from home for an extended period
of time. In the best case scenario, the SSI would agree to pay for her family’s travel expenses if
they accompany her during her work for the SSI, as White understands that it is typical for
NGOs to sometimes offer to pay for family travel expenses, but White has instructed her
attorneys that it is not necessary that any agreement she reaches with the SSI include a provision
for her family’s travel to be paid for by the SSI.

17
Fagan/White Clarifications

General Facts

Rd 1, p 1-2: Can we consider a 2-bedroom duplex a single high occupancy unit that can accommodate a
family?

You may decide for yourselves whether you want to offer both sides of a duplex together as one single
“unit” or if you want to split a duplex into two separate, smaller “units.” In fact, this may be a negotiating
point between the parties. As such, you should consider which approach would best serve your client’s
interests and develop your strategy accordingly.

Fagan/White Confidential Facts

Rd 1, p 2-3: Page 2 of the general facts notes that Fagan owns 3 duplexes, which are counted as 3 "units"
although the 2 sides of each unit can be rented separately. Page 3 of the confidential facts states that
Fagan "wants to offer no more than 3 of the units that can house 6 or more people." Are we required to
treat the duplexes as 3 "units" for 6 or more people, or may each side of a duplex be considered a separate
unit for purposes of negotiation?

You may decide for yourselves whether you want to offer both sides of a duplex together as one single
“unit” or if you want to split a duplex into two separate, smaller “units.” In fact, this may be a negotiating
point between the parties. As such, you should consider which approach would best serve your client’s
interests and develop your strategy accordingly.

Rd 1, p 1: In Round 1, Confidential Facts for Fagan, page one, last paragraph, Fagan is willing to offer 4-
8 properties to HomeLove, with no more than 3 units that can house 6 or more people. For purposes of
this calculation, how will a duplex be treated? Will each side of a duplex be treated as 1 property (or 1
unit) or will the entire duplex be treated as 1 property (or 1 unit)?

You may decide for yourselves whether you want to offer both sides of a duplex together as one single
“unit” or if you want to split a duplex into two separate, smaller “units.” In fact, this may be a negotiating
point between the parties. As such, you should consider which approach would best serve your client’s
interests and develop your strategy accordingly.

Rd 1, p 1-3: For the teams representing Fagen, is there a preference which units should be donated and
which should be subsidized?

There is no preference as to which specific units should be donated or subsidized. As long as you stay
within the limits that your client has given you, you may pick and choose which units to donate,
subsidize, or do nothing with.

18
Rd 1, p 1: In Round 1, Confidential Facts for Fagan, page one, last paragraph, Fagan is willing to offer 4-
8 properties to HomeLove, with no more than 3 units that can house 6 or more people. For purposes of
this calculation, how will a duplex be treated? Will each side of a duplex be treated as 1 property (or 1
unit) or will the entire duplex be treated as 1 property (or 1 unit)?

You may decide for yourselves whether you want to offer both sides of a duplex together as one single
“unit” or if you want to split a duplex into two separate, smaller “units.” In fact, this may be a negotiating
point between the parties. As such, you should consider which approach would best serve your client’s
interests and develop your strategy accordingly.

19
HomeLove & SSI Clarifications

General Facts

Rd 1, p 1-2: Can we consider a 2-bedroom duplex a single high occupancy unit that can accommodate a
family?

You may decide for yourselves whether you want to offer both sides of a duplex together as one single
“unit” or if you want to split a duplex into two separate, smaller “units.” In fact, this may be a negotiating
point between the parties. As such, you should consider which approach would best serve your client’s
interests and develop your strategy accordingly.

HomeLove/SSI Confidential Facts

Rd 2, p 7: Are we authorized by SSI to provide compensation for "as needed" work, after the full time
commitment has ended?

Yes, you have authorization to provide compensation to White for any “as-needed” work that she may
perform.

Rd 2, p 7-8: For the time Dr. White is asked to spend overseas (5 mo. minimum, 10-12 mos. ideally), is
that for total amount of time Dr. White agrees to work with SSI, be it 1-3 years, or per year that she
agrees to work with SSI, i.e. 5 months of each year? /

You will be negotiating the total amount of time that Dr. White will spend overseas during her work on
the Project, not the amount of time she will spend overseas on a per-year basis.

Rd 2, p 7-8: If Dr. Hannah White agrees to work on an as-needed basis after her term of employment with
SSI, can SSI agree to pay a prorated amount of her monthly stipend?

You have authorization to provide compensation to White for any “as-needed” work that she may
perform. How you decide to structure that compensation is up to you.

Rd 2, p 8: To accommodate travel for Dr. White's family, must the 7 month stay be a consecutive 7
months, or will SSI accommodate travel for multiple trips that total a 7 month stay?

SSI will pay for White’s family to travel with her if White commits to 7 months or more of overseas
work. SSI is willing to pay for multiple trips that total 7 months or more.

20
 American Bar Association
Law Student Division
2017-18 Negotiation Competition
National Security Law
National Competition
Round 3
Bio-Tech Solutions and Global Shipping Logistics
CONFIDENTIAL SUMMARY FOR JUDGES

These tables summarize each party’s goals and priorities for the negotiation, highlighting
the areas for potential agreement and disagreement.

Issue #1: Resolution of Bio-Tech’s Lost Costs for the Ruined Bird Flu Vaccines, and
Shipment Costs Owed to GSL

Bio-Tech GSL Possible Outcome

Bio-Tech does not want to GSL will need to inform Bio-Tech The parties will likely agree
pay the remaining balance that the remaining balance for the that GSL will waive its
owed to GSL for the bird shipment of the bird flu vaccines remaining shipping balance
flu shipping costs (which is increased by $4,000 because the and pay between $10,000-
$4,000 based on the vaccines had to be rerouted, bringing 20,000 to Bio-Tech to help
parties’ original the total remaining balance for the cover the cost of the ruined
agreement). Additionally, shipment to $8,000. GSL feels vaccines.
Bio-Tech wants GSL to entitled to receive at least 60% of its
pay for all or some of the remaining balance on the shipping
Bio-Tech’s lost cost for the costs because it successfully shipped
ruined vaccines. The total 60% of the vaccines, but is willing to
cost of the ruined vaccines waive the remaining balance to help
is $32,000, but Bio-Tech is smooth things over.
willing to accept a payment
from GSL of as little as As a customer service measure, GSL
$10,000 to cover the cost is willing to offer a payment of up to
of the vaccines. $20,000 to Bio-Tech to help offset
the cost of the ruined vaccines.

21
 Issue #2: Amendments to Current Contract

Bio-Tech GSL Possible Outcome

1. LENGTH OF CONTRACT 1. LENGTH OF CONTRACT 1. LENGTH OF

TERM: Bio-Tech would like to TERM: GSL would like to keep CONTRACT TERM:
amend this provision to be a this contract term intact, but The parties will probably
month-to-month contract. If GSL would like for Bio-Tech to agree agree on a contract length
wants a certain timeframe to finish out the remaining 6 of between 3-6 months
commitment, Bio-Tech is willing months on the parties’ existing that is not presumptively
to offer between a 3-6 month contract. At a minimum, GSL is renewable, but that
commitment that converts to willing to agree to no less than a 3 allows for the parties to
month-to-month once the initial month contract term. meet at the expiration of
commitment ends. Bio-Tech also Additionally, GSL would like this the contract to discuss
wants to remove the provision that term to include a provision that whether the contract will
allows the contract to allows GSL the right to meet with be renewed.
presumptively renew. Bio-Tech at the expiration of the
contract to discuss whether the 2. VACCINE
2. VACCINE SHIPMENT contract will be renewed. SHIPMENT
SCHEDULE: Bio-Tech wants to SCHEDULE: The parties
amend this provision to eliminate 2. VACCINE SHIPMENT will likely agree to omit
the shipment of flu vaccines 6 SCHEDULE: GSL is willing to the provision for the
times a year. Ideally, Bio-Tech amend this term to allow Bio- shipment of flu vaccines
would also like to amend this Tech to ship vaccines on an ad 6 times a year and add a
provision to allow for Bio-Tech to hoc basis, so long as the parties provision allowing for
ship vaccines on an ad hoc basis in agree to clear terms for notice and Bio-Tech to ship
response to disease outbreaks. payment of the shipments vaccines on an ad hoc
(addressed in terms 3 and 6). basis.
3. NOTICE FOR VACCINE
SHIPMENTS: Bio-Tech has no 3. NOTICE FOR VACCINE 3. NOTICE FOR
requested changes to this term as it SHIPMENTS: GSL has no VACCINE
relates to the regularly scheduled requested changes to this term as SHIPMENTS: The
vaccine shipments. If the parties it relates to the regularly parties will likely agree
amend the contract to allow for scheduled vaccine shipments. If to amend the contract to
Bio-Tech to ship vaccines on an ad the parties amend the contract to add a provision requiring
hoc basis, Bio-Tech would like to allow for Bio-Tech to ship between 5-8 days’
be required to give only 3 days’ vaccines on an ad hoc basis, GSL written notice for
written notice for the ad hoc would prefer to have 10 days’ vaccines shipped on an
vaccines, but will agree to up to 8 written notice, but is willing to ad hoc basis.
days’ written notice. agree to as little as 5 days’ written
notice.

22
4. SHIPPING CONTAINERS 4. SHIPPING CONTAINERS 4. SHIPPING
PROVIDED BY GSL: Bio-Tech PROVIDED BY GSL: GSL CONTAINERS
doesn’t have any requested needs to amend this term to PROVIDED BY GSL:
changes for this term, but, if asked, temporarily reduce the number of The parties will likely
is willing to adjust the number of shipping containers it provides agree to temporarily
shipping containers down from 5 from 5 to 3. Once GSL is able to reduce the number of
to 3. If the number of shipping replace its lost shipping shipping containers that
containers is reduced, the number containers, the number of GSL provides from 5 to 3
of vaccines shipped (addressed in containers provided can go back until GSL is able to
term #6) will also have to be up to 5. replace its lost
adjusted. containers.
5. TIMEFRAME FOR
5. TIMEFRAME FOR SHIPMENTS: GSL has no 5. TIMEFRAME FOR
SHIPMENTS: Bio-Tech has no requested changes for this term. SHIPMENTS: The
requested changes for this term. parties will not amend
6. PAYMENT FOR this term.
6. PAYMENT FOR SHIPMENTS: Because GSL has
SHIPMENTS: Bio-Tech wants to temporarily lost two of its 6. PAYMENT FOR
amend this term to eliminate the shipping containers, GSL will SHIPMENTS: The
payments for the flu vaccine need to reduce the number of parties will likely agree
shipments. childhood vaccines that can be to eliminate the shipment
shipped from 10,000 to 6,000. terms for the flu
Also, Bio-Tech is willing to GSL wants to retain the shipping vaccines.
amend this term to temporarily cost of $.50 per vaccine for the
reduce the shipment of the number childhood vaccines. Additionally, the parties
of childhood vaccines from 10,000 will likely agree to
to 6,000 to accommodate a As for any ad hoc vaccine temporarily reduce the
reduction in GSL’s shipping shipments, GSL would like to number of childhood
containers, while continuing to pay secure a shipment cost of between vaccines shipped from
$.50 per vaccine to ship the $.60-$1.00 per vaccine, with an 10,000 to 6,000 until
childhood vaccines. additional provision that Bio- GSL replaces its lost
Tech will pay an additional $.20 shipping containers, and
Additionally, Bio-Tech wants to per vaccine if Bio-Tech makes that Bio-Tech will
amend this provision to address any changes in where the continue to pay $.50 per
payments for ad hoc vaccine vaccines should be shipped after vaccine to ship the
shipments. For the ad hoc the notice cut-off provided in childhood vaccines.
shipments, Bio-Tech is willing to term #3.
agree to a shipping cost of Finally, the parties will
between $.50-.90 per vaccine. agree that Bio-Tech will
pay between $.60-.90 per
vaccine for the ad hoc
vaccine shipments, and

23
7. ADDED TERM – 7. ADDED TERM – that Bio-Tech will pay an
LIQUIDATED DAMAGES: Bio- LIQUIDATED DAMAGES: additional $.20 per
Tech wants to add a term to the GSL’s facts do not contain any vaccine if Bio-Tech
contract that requires Bio-Tech to requirement of an additional term makes any changes in
pay liquidated damages in the for liquidated damages, or any where the vaccines
amount of $50,000 or the actual specific opposition to such a term should be shipped after
cost of the ruined vaccines being added to the contract. the notice cut-off
(whichever is higher) for any provided in term #3.
future ruined shipments that result
from a failure of GSL’s shipping 7. ADDED TERM –
containers or its failure to ship the LIQUIDATED
vaccines within 72 hours. DAMAGES: GSL will
likely agree to add a
liquidated damages
clause to the contract.

General Information for Both Parties

Bio-Tech Solutions is a pharmaceutical company located in the U.S. that has a special
focus on researching, developing, and testing vaccines. Although Bio-Tech enjoys strong
revenues from sales of its pharmaceutical products, it is also committed to providing
humanitarian relief in developing areas of the world by providing basic vaccines at little to no
cost. Five years ago, Bio-Tech’s CEO made a commitment that Bio-Tech would join a handful
of other pharmaceutical companies in providing basic childhood vaccines and flu vaccines to
certain impoverished countries around the world. The small network of pharmaceutical
companies that made this commitment decided to name its collective undertaking the Global
Childhood and Basic Health Initiative, and each company has the freedom to arrange the
logistics of how and when it will provide vaccines. Most of the cost of providing these vaccines
is borne by the pharmaceutical companies themselves, though some of the expense is offset by a
few non-profit organizations that focus on global health and disease prevention.

During the past eighteen months that Bio-Tech has been providing vaccines as part of the
Initiative, it has partnered with Global Shipping Logistics (GSL) to ship the vaccines to locations
around the world. GSL is a U.S.-based shipping company with a global reach that has a strong
reputation for quality in its shipping practices. In addition to its ability to ship globally, Bio-Tech
chose to use GSL because of GSL’s highly advertised “cold shipping capabilities” that allow it to
ship temperature-sensitive contents to far-away locations. At the beginning of their partnership,
24
Bio-Tech and GSL entered into a one-year, presumptively renewable contract that renewed for a
second year when neither party had any complaints about the arrangement, nor requested any
changes to the contract. The relevant terms of the current contract between the parties, which
will presumptively renew again in six months, are as follows:

1. LENGTH OF CONTRACT TERM: The contract between Bio-Tech and GSL for the
shipment of vaccines as part of Bio-Tech’s participation in the Global Childhood and Basic
Health Initiative will extend for one year from the date of the contract’s enactment by the
parties. The contract will presumptively renew each year, unless at least one month before
the date of the contract’s renewal, one or both parties submits in writing to the other party
an intention to either renegotiate the terms of the contract or to terminate the contract.

2. VACCINE SHIPMENT SCHEDULE: Bio-Tech intends to ship vaccines on a

regular schedule throughout the year-long term of the contract, with flu vaccines being
shipped a total of six times, twice each month in the months of September, October, and
November, and regular childhood vaccines being shipped twice a month year-round.

3. NOTICE FOR VACCINE SHIPMENTS: Before each scheduled vaccine

shipment, Bio-Tech will provide GSL with at least fourteen days’ written notice
(which can include email) of where the vaccines should be shipped and on what specific date
the vaccines should arrive at their intended destination.

4. SHIPPING CONTAINERS PROVIDED BY GSL: GSL will provide, for each

scheduled shipment, a fleet of up to five temperature-controlled shipping containers that can
create a regulated shipping temperature of between 32 and 45 degrees Fahrenheit for up to 72
hours in shipment. Each shipping container can hold up to 2,000 vaccines.

5. TIMEFRAME FOR SHIPMENTS: Because GSL’s temperature-controlled

shipping containers can only regulate the shipping temperature for up to 72 hours,
GSL will ship each scheduled vaccine shipment to its intended destination within 72 hours.

6. PAYMENT FOR SHIPMENTS: For each successful shipment of regular

childhood vaccines, which will consist of 10,000 total vaccines and should be kept at
a shipping temperature of 35 degrees Fahrenheit, Bio-Tech will pay GSL a flat rate of
$5,000. For each successful shipment of flu vaccines, which will consist of 6,000 total
vaccines and should be kept at a shipping temperature of 40 degrees Fahrenheit, Bio-Tech
will pay GSL a flat rate of $3,000. For each shipment, Bio-Tech will pay half of the shipping

25
cost up front and the other half of the shipping cost upon the successful completion of
the shipment.

For the first seventeen months of the parties’ relationship, everything went more or less
as expected. Bio-Tech found GSL to be reliable and prompt in shipping the vaccines and in
keeping the vaccines at the correct temperature and, in turn, GSL found Bio-Tech to be
reasonable in its shipping expectations. This all changed, however, when a recent shipment of flu
vaccines to an Asian country experiencing a large outbreak of a unique strain of bird flu ended in
disaster. Within the past month, as the bird flu outbreak began, Sally Vawter, Bio-Tech’s director
in charge of coordinating vaccine shipments for the Initiative, decided that Bio-Tech needed to
help stop the spread of the outbreak and aid those affected. About three weeks ago, Vawter had
spoken with Michael Hirsch, her main point of contact at GSL to coordinate shipments of the
vaccines, on the phone about whether GSL could handle a shipment of 10,000 bird flu vaccines
that were not part of the parties’ regularly scheduled vaccine shipments covered by the contract.
Hirsch had asked Vawter to send him the details of what country and city the shipment needed to
go to, the specific dates on which the shipment would be ready and when the shipment needed to
arrive at its destination, and what temperature the vaccines needed to be kept at during shipment.
Vawter had responded promptly via email with all of the requested information, including
specific instructions that the vaccines should be shipped within 48 hours instead of 72 hours
because of the urgent nature of the bird flu outbreak. After a few days of checking logistics,
Hirsch had called Vawter back and confirmed that GSL would be able to make the shipment.
During this phone call, the parties had agreed that Bio-Tech would pay GSL $8,000 for the bird
flu shipment, and Hirsch followed their phone call up with an email confirming the parties’
agreement. Even though this particular shipment was not covered by the parties’ contract, Bio-
Tech had paid for half the cost of the shipment up front and planned to pay for the other half of
the cost of the shipment upon its successful completion, similarly to any other shipment.

The shipment went off the rails almost immediately. The evening of the day that the
vaccines had been picked up for shipment, Vawter realized that she had made a mistake in what
city she had told Hirsh that GSL should ship the vaccines to. In her haste to make arrangements
for the vaccines to be shipped, Vawter had misread some of the information that had been
provided to her by the global health organization spearheading the response to the bird flu
outbreak. In the information put out by the global health organization, it identified multiple cities
in a specific Asian country where the organization would be working to combat the bird flu
outbreak. One of the cities in particular, Shusang, was listed as the city where all vaccine
shipments should be made, while one of the other cities, Lonyan, was listed as the city where all
monetary donations should be made and where the organization’s headquarters would be located.
Vawter had mistakenly told Hirsch that the vaccines should be shipped to Lonyan instead of
Shusang. After realizing her mistake, Vawter frantically attempted to contact Hirsch to make the
correction. She called both his office and cell phones, leaving messages after he did not answer.
She also texted him, telling him of her mistake and asking him to contact her immediately. After
about an hour, Hirsch called her back and the two had a tense conversation about whether the
shipment’s destination could be corrected in time for the vaccines to arrive at the correct city
within the agreed-upon time frame of 48 hours. Over the course of the evening and after several
26
phone calls and texts, Hirsch was finally able to tell Vawter that he had been able to contact the
GSL personnel who were handling the bird flu shipment and inform them of the corrected
destination. Because the new destination city is several hundred miles away from the original
destination city and is not directly accessible by air, Hirsch informed Vawter that, at this point in
the shipment process, it would not be possible for GSL to deliver the vaccines to Shusang within
the promised 48-hour timeframe, but that the vaccines could be rerouted to Shusang within the
72-hour timeframe that the temperature-controlled shipping containers were able to operate in.

Vawter, embarrassed at her own mistake and frustrated that the shipment would be
arriving later than she had hoped, acknowledged that under the circumstances, getting the
vaccines to Shusang within 72 hours was the best that could be done. She and Hirsch agreed to
keep in close contact over the next several days to monitor the situation. Unfortunately, three
days later, Hirsch called her back with more bad news. At some point between Lonyan and
Shusang, two of GSL’s temperature-controlled shipping containers had failed, and all of the
vaccines in them, 4,000 in total, had been ruined. Vawter was furious when she received word of
the ruined vaccines. As Vawter ranted on the phone to Hirsch about how much wasted money
and, more importantly, wasted medicine resulted from GSL’s failure to ensure that its shipping
containers would work properly, Hirsch indignantly responded that if Bio-Tech had told GSL the
right city where the vaccines were supposed to go in the first place, then the vaccines wouldn’t
have even been on the shipping trucks at the time the shipping containers failed anyway. With
both parties pointing fingers at the other for who was to blame for the failed shipment, they
eventually ended the call amidst angry demands from both sides that “you need to fix this and
make sure this never happens again!”

A few days later, after a long conference call with directors at the other pharmaceutical
companies participating in the Initiative, Vawter had to admit that it was imperative for Bio-Tech
to attempt to restore its relationship with GSL, at least temporarily, in order to continue to
respond to the growing, immediate demand for vaccines to combat the bird flu outbreak in Asia.
Vawter called Hirsch and the two had a tense, but productive conversation in which they agreed
that they should quickly schedule a meeting to discuss what went wrong on the last shipment,
what could be done to prevent a problem like this from happening again, and to re-examine the
terms of the contract between their companies. They further agreed that they would each meet
with their respective company attorneys before the meeting and send their attorneys to the
meeting on each company’s behalf.

Confidential Information for Bio-Tech and Sally Vawter

Sally Vawter is extremely upset about the recent events with GSL. Her work for Bio-
Tech as part of the Global Childhood and Basic Health Initiative is incredibly important to her,
as she has dedicated her career to the prevention of disease outbreak and she is especially
passionate about providing vaccines to help improve community health in poor and vulnerable

27
countries in the world. Though the total number of vaccines that Bio-Tech provides through the
Initiative represents a small number of the total vaccines needed in impoverished areas of the
world, Vawter is determined that every single vaccine sent by Bio-Tech will be used to make a
meaningful difference in the health of the individual who receives it.

Of course, Vawter’s vision of each vaccine being put to good use was shattered when she
discovered that 40% of Bio-Tech’s most recent shipment of flu vaccines for the bird flu outbreak
in Asia had gone to waste. She is furious that GSL was not able to ship all of the vaccines at the
necessary temperature to keep them from being ruined, and her anger is all the more pronounced
by the fact that these vaccines were specially made to combat the unique strain of flu present in
the bird flu outbreak, which is quickly becoming a health crisis in certain areas of Asia. Vawter
has to admit, however, that Bio-Tech’s efforts to respond to the bird flu outbreak are part of what
triggered the problems with GSL in the first place. Vawter is acutely aware that her mistake in
telling Hirsch the wrong delivery city is the primary reason that things went wrong with this
shipment, and she knows she is lucky that the rest of the vaccines arrived at the correct city
without being ruined, despite her mistake. Nevertheless, GSL’s shipping containers were
supposed to keep the vaccines at the regulated temperature for up to 72 hours, and their failure is
ultimately what caused the vaccines to be ruined. Each of the bird flu vaccines had cost Bio-Tech
$8 to make (which is relatively inexpensive, considering the specialty nature of the vaccine), so
the 4,000 ruined vaccines amounted to a $32,000 loss for Bio-Tech. Despite the fact that Vawter
had initiated the problem by providing the wrong destination city, she has no intention of paying
GSL the remaining $4,000 for the shipment; in fact, Vawter believes that GSL should pay Bio-
Tech in full for the lost cost of the vaccines. Vawter anticipates that GSL will resist a demand
that it pay for the ruined vaccines, citing her error in providing the wrong destination city, but
she is adamant that GSL pay something towards the lost vaccines. Vawter is willing to accept a
minimum of $10,000 in repayment for the vaccines, but the more Bio-Tech’s attorneys can get
GSL to pay for them, the better.

In addition to discussing how to resolve the issues between the parties relating to the bird
flu shipment, Vawter wants Bio-Tech’s attorneys to address the current contract between the
parties. In anticipation of the parties’ meeting, Vawter had sent a letter to Hirsch informing him
of her intent to renegotiate the terms of the parties’ existing contract, and Hirsch had responded
in kind. In their letters, both parties agreed not only that their letters served as notice sufficient to
suspend the presumptively renewable nature of the contract as provided in term #1, but also that
the current contract between the parties should be amended, with the amendments being effective
immediately. After the failure of GSL’s temperature-controlled shipping containers, Vawter
might have simply sent Hirsch a notice of her intent to terminate the contact at its expiration in
six months, but the parties have had a good working relationship for over a year. Vawter is
willing to come to the table with GSL and at least attempt to work things out between them for
shipments going forward. In addition, Vawter isn’t confident that she can find another shipping
company with the same cold-shipping capabilities and global reach that GSL has, and Bio-Tech
plans to continue its involvement with the Initiative for several years to come. In fact, the bird flu
epidemic has triggered Vawter and some of her colleagues to reconsider the approach that Bio-
Tech currently takes to providing vaccines for the Initiative. Rather than simply providing pre-
28
determined vaccines on a regular schedule, Vawter and her colleagues want Bio-Tech to be able
to respond to emerging health threats on an as-needed basis. Therefore, what Vawter hopes Bio-
Tech’s attorneys can achieve at the meeting regarding Bio-Tech’s current contract with GSL is
an agreement to amend the terms of the existing contract effective immediately according to the
following guidelines for each of the relevant terms of the contract:

1. LENGTH OF CONTRACT TERM: Bio-Tech would like to request several

changes to this term of the contract. In light of the failure of GSL’s shipping
containers, Vawter wants to amend the contract length to something shorter than a
year, and she wants to remove the provision that allows for the contract to presumptively
renew. Right now, Vawter is not comfortable making a long-term commitment to using
GSL for Bio-Tech’s vaccine shipments, and she wants to renegotiate this term so as to keep
Bio-Tech’s options open in the event that Bio-Tech would like to change shipping
partners. Ideally, Vawter would like for this provision to be amended so as to operate
on a month-to-month basis, with either party being free to terminate the contract before the
next month’s term begins. If GSL pushes for a more certain long-term commitment,
Vawter is reluctant to oblige. Vawter would prefer to make no longer than a three-month
commitment that converts to a month-to-month commitment after that, but she is willing
to consider up to a six-month commitment that converts to a month-to-month commitment,
especially if GSL is able to accommodate some of Bio-Tech’s other requested
amendments.

2. VACCINE SHIPMENT SCHEDULE: Vawter also wants to make several

amendments to this term of the contract. As mentioned previously, Vawter and
several of her colleagues would like to see Bio-Tech be able to respond to emerging health
threats and virus outbreaks around the world, in addition to shipping certain vaccines on a
regular schedule. Though Vawter and her colleagues have decided that Bio-Tech should still
ship the regular childhood vaccines twice a month year-round, they have decided that Bio-
Tech is going to suspend its shipments of flu vaccines. Shipping the flu vaccines has proven
to be costly and sometimes ineffective, as the strains of the flu virus in the countries that
have received Bio-Tech’s vaccines do not always match the strains that the vaccine is
designed to protect against. Instead of shipping flu vaccines six times a year, Bio-Tech would
like for this term of the contract to be amended to allow Bio-Tech to ship vaccines on an ad
hoc basis in response to specific disease outbreaks. If GSL is unable or unwilling to make this
amendment, Bio-Tech simply wants to amend this term so as to omit the provision for
the flu vaccine shipments. In the event that GSL cannot accommodate Bio-Tech’s desire to
ship vaccines on an ad hoc basis, Bio-Tech will actively search for a new shipping partner that
can make such an accommodation, with the intent of eventually moving all of Bio-Tech’s
shipping business to the new partner.

3. NOTICE FOR VACCINE SHIPMENTS: Bio-Tech has no issue with this term as
it relates to the regularly scheduled vaccine shipments, but, if GSL is able to accommodate

29
ad hoc vaccine shipments, Bio-Tech knows that this term should be amended so as to also
address what notice will be required for any non-scheduled vaccine shipments. For the non-
scheduled shipments, Bio- Tech would prefer to for this term to require only three days’
written notice because when responding to a sudden disease outbreak, Bio-Tech may not have
all of the pertinent shipment information until very late in the process, but, to accommodate
GSL and its need to be able to arrange for shipping logistics, Bio-Tech would be willing to
agree to as many as eight days’ written notice.

4. SHIPPING CONTAINERS PROVIDED BY GSL: Bio-Tech has no desired

changes to this term of the contract. Vawter is aware, of course, that two of GSL’s
temperature-controlled shipping containers are currently not working. If GSL needs to
reduce the number of shipping containers that it provides for Bio-Tech’s shipments from
five to three, Bio-Tech is willing to accommodate that. Of course, if GSL reduces the number
of shipping containers it provides, the parties will need to also adjust the number of total
vaccines that will be shipped in each regular shipment and the cost of each shipment, covered
in term #6.

5. TIMEFRAME FOR SHIPMENTS: Bio-Tech has no requested changes to this

term of the contract.

6. PAYMENT FOR SHIPMENTS: The first amendment that Bio-Tech needs to

make for this term is to drop the language relating to the flu vaccines, as Bio-Tech no longer
plans to ship those vaccines as part of the Initiative. The second amendment that Bio-Tech
needs to make is to add a provision addressing the payment terms for any non-scheduled vaccine
shipments Bio-Tech renders in response to a disease outbreak, assuming that GSL will be
amenable to adding that type of shipping service. Of course, the total number of vaccines that
Bio-Tech can ship in a non-scheduled shipment will depend on the number of shipping
containers that GSL has available for any one shipment, and as long as GSL can commit to
providing at least three shipping containers at all times, Bio-Tech would not ask to ship a higher
volume than GSL can handle. The bigger priority for Bio-Tech is to negotiate a set shipping rate
for any non-scheduled shipments so that Bio-Tech can accurately estimate the cost of those
shipments. The current flat-rate shipment cost that Bio-Tech has with GSL for the childhood
vaccines essentially breaks down to $.50 per vaccine. Bio-Tech hopes to keep the shipment cost
for non-scheduled shipments as low as $.50 per vaccine, but recognizes that GSL will probably
need to charge a higher rate for these shipments because of the more last-minute nature of the
logistics scheduling. Therefore, Bio-Tech will agree to a shipping rate of up to $.90 per vaccine,
but hopes that its attorneys can secure as low a shipping rate as possible. As to the shipping
volume and cost for Bio-Tech’s shipment of childhood vaccines, if GSL needs to temporarily
reduce the volume of childhood vaccines that it can ship from 10,000 to 6,000, Bio-Tech is
willing to agree to that, with the understanding that the volume will increase back to the original
number as soon as GSL is able to handle it. Additionally, Bio-Tech is sure that GSL will want

30
Bio-Tech to pay the same shipping cost for the childhood vaccines, $.50 per vaccine, at the
reduced volume, and Bio-Tech is willing to oblige.

As a final matter, Bio-Tech would like for its attorneys to secure one additional term in
the parties’ contract. Based on the failure of GSL’s shipping containers in the most recent
shipment and the resulting lost cost to Bio-Tech of the ruined vaccines, Bio-Tech wants its
contract with GSL to include a liquidated damages clause that provides that, for any ruined
vaccines resulting from a failure of GSL’s temperature-controlled shipping containers or a failure
of GSL to ship the vaccines within the 72-hour timeframe that the shipping containers will
operate in, GSL agrees to pay damages to Bio-Tech in the amount of $50,000 or the actual cost
of the ruined vaccines, whichever amount is higher.

Confidential Information for GSL and Michael Hirsch

Michael Hirsch cannot believe that GSL experienced a failure of its temperature-
controlled shipping containers, especially after he had gone out of his way to help accommodate
Vawter’s desire for Bio-Tech to ship the bird flu vaccines. GSL had been providing excellent
service to Bio-Tech for nearly a year and a half when this fiasco occurred, and Hirsch hopes that
this meeting can provide GSL with an opportunity to smooth things over between the parties.
Hirsch’s goal is to assure Bio-Tech that GSL is still a reliable partner for its shipping needs and
make any necessary adjustments to the way the parties conduct business to allow them to move
forward together. Though GSL enjoys a stable customer base beyond its contract with Bio-Tech,
Hirsch and the rest of the team at GSL are strongly committed to customer service, and he wants
to retain Bio-Tech’s business if at all possible. In addition to GSL’s relationship with Bio-Tech,
Hirsch is especially concerned that GSL may develop a bad name in the cold-shipping industry
based on the failure of its cold-shipping containers, which makes it even more important for GSL
to find a way to reach a positive resolution with Bio-Tech.

The first step toward repairing the relationship with Bio-Tech will be to address the bird
flu shipment. Hirsch cannot imagine how Vawter managed to misunderstand what city the
vaccines needed to be shipped to—surely the information that had been given to her was not that
confusing. Plus, Hirsch would have thought that Vawter would have double-checked all of the
details of the shipment, especially considering the time-sensitive nature of shipping the vaccines
for the bird flu outbreak. Hirsch thinks it is a testament to GSL’s commitment to customer
service that he was able to quickly respond to Vawter’s frantic calls and texts and arrange for the
shipment to be rerouted to the correct city and scheduled to arrive only 24 hours later, all after
the shipment had already been in route for over half a day. One thing that Hirsch has not yet had
an opportunity to tell Vawter is that GSL’s last-minute rerouting of the shipment had been
expensive, increasing the total shipping cost for the bird flu vaccines by an additional $4,000.

31
This means that Bio-Tech’s outstanding balance for the shipment stands at $8,000, not $4,000.
Hirsch understands that Bio-Tech will likely claim that it owes nothing more for the shipment
because 40% of the vaccines were ruined, and he is willing to accommodate that claim to an
extent. The failure of GSL’s shipping containers did play a prominent role in the problems with
the shipment, but GSL was able to ship 60% of the vaccines to the correct city within 72 hours, a
timeframe that Vawter had agreed was acceptable after the parties had begun the process of
rerouting the vaccines. During the phone call when Vawter and Hirsch had exchanged heated
words, Vawter had fumed about the lost money that Bio-Tech was going to incur as a result of
the ruined vaccines, and Hirsch believes that she will ask GSL to reimburse Bio-Tech for the lost
cost of the vaccines. Hirsch does not have an estimate for the how much the ruined vaccines may
have cost Bio-Tech, but he does not believe that GSL is solely responsible for absorbing that
cost. Further, Hirsch does believe that GSL is owed at least 60% of its outstanding shipping
costs. Nonetheless, acknowledging that the failure of GSL’s shipping containers contributed to
Bio-Tech’s lost vaccines cost and in the interest of helping the parties to move forward together,
Hirsch had authorized GSL’s attorneys to, at minimum, waive the outstanding balance of Bio-
Tech’s shipping costs and, at maximum, offer up to $20,000 as a settlement of Bio-Tech’s lost
cost for the ruined vaccines.

In addition to discussing how to resolve the issues between the parties relating to the bird
flu shipment, Hirsch wants GSL’s attorneys to address the current contract between the parties.
A few days ago, Hirsch had received a letter from Vawter informing him of her intent to
renegotiate the terms of the parties’ existing contract, and Hirsch had responded in kind. In their
letters, both parties agreed not only that their letters served as notice sufficient to suspend the
presumptively renewable nature of the contract as provided in term #1, but also that the current
contract between the parties should be amended, with the amendments being effective
immediately. As Bio-Tech is well aware, GSL is currently experiencing a loss of two of its cold-
shipping containers. Though GSL has other cold-shipping containers of various sizes and
temperature-regulation capabilities, all of the other containers are already dedicated to other
contracts that GSL has with other companies. Therefore, until GSL is able to replace its two
broken containers, it can only provide three cold-shipping containers for its shipments with Bio-
Tech. Hirsch has already begun the process of replacing the two lost containers, but the company
that manufactures them is backlogged and has told Hirsch to expect the containers to be ready in
the next 4-6 months. In the meantime, GSL will simply have to temporarily reduce the volume of
cold shipping that it can offer Bio-Tech. Therefore, Hirsch hopes that GSL’s attorneys can
negotiate amendments to the terms of the current contract between GSL and Bio-Tech according
to the following guidelines for each of the relevant terms of the contract:

1. LENGTH OF CONTRACT TERM: GSL would prefer to keep this contract term
intact, but Hirsch anticipates that Bio-Tech will request several amendments to this
provision, especially after Vawter made it clear how angry she was over the ruined
vaccines. For GSL, having a set commitment for a shipping agreement helps it to manage
its fleet of shipping trucks, containers, personnel, etc., which in turn provides for a more
reliable service experience for the customer. Therefore, although Hirsch acknowledges
that GSL may not be able to secure a year-long, presumptively renewable contract with
32
Bio-Tech right now, he would like to obtain a commitment from Bio- Tech to at least finish
out the remaining six months of the parties’ contract. If Bio-Tech is hesitant to commit to a
six-month contract with GSL, Hirsch is willing to offer a contract term of a minimum of
three months, but he has instructed GSL’s attorneys not to agree to any term shorter than
that. For GSL’s budget projections for this year, it is relying on the income from its current
contract with Bio-Tech. Hirsch believes that GSL could recover financially from losing a
portion of this contract, given a little time to find a replacement client, but GSL can’t afford to
lose the entire contract. No matter what term length the parties ultimately agree on, Hirsch
would like for GSL to retain the right to at least meet with Bio-Tech at the expiration of
the contract term to discuss whether and under what terms the contract may be
renewed.

2. VACCINE SHIPMENT SCHEDULE: In response to the problems that arose between

the parties because of the shipment of the bird flu vaccines, GSL would like to amend this term
of the contract to address any desire that Bio-Tech might have to ship vaccines outside of the
regular shipment schedule between the parties, such as shipments made in response to a
sudden disease outbreak. Hirsch is confident that with clear and fair provisions for
both notice and payment of any “non-scheduled” vaccine shipments (which should be
addressed in terms #3 and #6 below), GSL could successfully handle any such shipments (and
Hirsch believes the parties could likely have avoided the problems with the bird flu shipment).

3. NOTICE FOR VACCINE SHIPMENTS: GSL has no issue with this term as it
relates to the regularly scheduled vaccine shipments, but will insist that this term be amended
so as to also address what notice will be required for any non-scheduled vaccine
shipments. For the non-scheduled shipments, GSL would prefer to have ten days’ written notice
of where the vaccines should be shipped and on what specific date the vaccines should
arrive at their intended destination in order to plan logistics for the shipment, but, to
accommodate Bio-Tech and the last-minute nature of these types of vaccine
shipments, GSL would be willing to agree to as little as five days’ written notice.

4. SHIPPING CONTAINERS PROVIDED BY GSL: It will be important for GSL to

amend this term of the contract because GSL currently has only three temperature-
controlled shipping containers that can be dedicated to its shipments for Bio-Tech. Once GSL
receives the two new containers that it has ordered, which it expects to receive within 4-6
months, it can once again provide a fleet of five temperature-controlled shipping containers.

5. TIMEFRAME FOR SHIPMENTS: GSL has no requested changes to this term of

the contract.

33
6. PAYMENT FOR SHIPMENTS: The first amendment that GSL needs to make
to this term is that, until it receives its two replacement shipping containers, it will not be able
to accommodate any vaccine shipments of more than 6,000 vaccines. Thus, as to the current
agreement to ship regular childhood vaccines at a total volume of 10,000 vaccines per
shipment, GSL will need to reduce the shipment volume to no more than 6,000 vaccines
per shipment temporarily. Once GSL receives its replacement shipping containers, the
total number of childhood vaccines shipped per shipment can be adjusted back up to
10,000. For the childhood vaccines, the current flat- rate shipment cost that GSL has with Bio-
Tech essentially breaks down to $.50 per vaccine. GSL does not intend to reduce the per-
vaccine shipping cost for the childhood vaccines, but of course the total cost for each shipment
will be less if the number of vaccines shipped is reduced. The second amendment that
GSL needs to make to this term is to address any non-scheduled vaccine shipments that Bio-
Tech may want to make. As far as the volume of vaccines that GSL could handle in a non-
scheduled shipment, that number will be limited by the number of temperature-controlled
shipping containers that GSL has available to it at the time that Bio-Tech requests the
shipment. As far as the cost to make a non-scheduled shipment, GSL will insist that the cost be
more than the $.50 per vaccine for the regular shipments. GSL will almost certainly have
a higher cost to make a non-scheduled shipment because of the more last-minute nature of
scheduling shipping logistics, so GSL would like for the shipping cost of the non-scheduled
shipments to be no less than $.60 per vaccine, but preferably as high as $1.00 per vaccine.
One final provision that GSL would like to add to this term is that, for any non- scheduled
vaccine shipments, if Bio-Tech submits any change in information of where the vaccines need to
be shipped or on what day the vaccines need to arrive after the notice cut-off provided in
term #3, GSL will automatically increase the shipment cost for that specific shipment by
$.20 per vaccine.

34
 American Bar Association
Law Student Division
2017-18 Negotiation Competition
National Security Law
National Competition
Round 4

The Citizen’s Forum and Becky Clark

CONFIDENTIAL SUMMARY FOR JUDGES

These tables summarize each party’s goals and priorities for the negotiation, highlighting
the areas for potential agreement and disagreement.

Issue #1: Restoring Clark’s Page to the Website

The Citizen’s Forum Clark Possible Outcome

The Citizen’s Forum (aka “the Clark will insist that her The parties will likely agree
website”) will restore Clark’s page page be restored to the that Clark’s page should be
because the videos she posted did website immediately restored to the website
not violate the website’s policy as it because the videos she immediately and that Clark
was written at the time. The website posted do not violate the will be subject to the
is going to amend its terms and website’s terms and website’s new policy that
conditions to disallow videos, conditions, and she will disallows the type of videos
messages, or other propaganda that willing to offer proof of this that she posted.
depicts or appears to depict terrorist if necessary.
activity. Under the new policy,
videos of the type that Clark posted
will not be allowed, and if Clark
violates these terms, her page will be
shut down permanently.

35
 Issue #2: Restrictions on Clark’s Page

The Citizen’s Forum Clark Possible Outcome

As a condition of restoring Clark wants her page to be The parties will likely agree
Clark’s page to the website, restored without any limitations that, as a condition to having
The Citizen’s Forum will insist on her use of its features and her page restored, Clark will
that she be subject to certain functions, but she understands agree to be subject to a
restrictions. that she will be expected to abide vetting process before
by the website’s regular policies posting any videos to her
First, Clark must submit all and restrictions. Clark is willing page that will last between
videos that she wants to post to to agree to a temporary vetting 30-60 days. The parties
the website’s user content process before posting videos on should also agree that the
managers to be vetted before her page, and she would like the website will make its
she will be allowed to post the vetting process to be in place for decisions in the vetting
videos. This vetting process between 20-60 days. process within 24 hours and
should last between 30-90 Additionally, Clark wants the that Clark will respect the
days. The vetting process website to make its decisions results of the vetting process
should include a term during the vetting process within or forfeit her page
providing that Clark will 24 hours. permanently. Finally, the
respect the results of the parties should agree that
process for any videos she Clark will give proper
wants to post and that, if she attribution for all videos she
posts any content deemed posts on her page, and, upon
unacceptable after being having her page restored, she
vetted, she will forfeit her right will post a statement
to have a page on the website. explaining the source of the
Second, Clark must provide videos that resulted in her
proper attribution for all videos page being shut down.
she posts on her page, and,
upon having her page restored,
she must post a statement
explaining the source of the
videos that resulted in her page
being shut down.

36
 Issue #3: Compensation for Shutting Clark’s Page Down
The Citizen’s Forum Clark Possible Outcome

Though the website would Clark feels entitled to receive up to The parties will probably
prefer not to pay Clark any $10,000 in damages for the website agree that the website will
damages for shutting her wrongfully shutting her page down. pay Clark damages in the
page down, it may offer As a last resort, if the website amount of $5,000 or less,
her up to $5,000 as a strongly resists paying her any and Clark will probably
settlement to appease her. monetary damages, Clark will agree agree to both a release of her
The website wants Clark to forgo any money payment if the claims against the website
sign a release of any claims website will take measures to assure for shutting her page down
she has against it for advertisers that Clark’s page is a and a non-disclosure
shutting her page down and reliable place to advertise. If the agreement related to the
a non-disclosure agreement website agrees to pay her some payment of damages.
as to any financial monetary damages, Clark will sign a
settlement. release of any claims she has against
the website for shutting her page
down, but she will not sign a release
if the website does not agree to pay
her any money.

Issue #4: Clark’s Defamatory Comments Against The Citizen’s Forum

The Citizen’s Forum Clark Possible Outcome

The website, in lieu of any Clark is willing to offer a settlement The parties will likely that
damages for Clark’s to the website for her defamatory Clark will issue a public
defamatory statement, statements about it in the form of statement recanting her
wants Clark to publicly either (1) forfeiting some of her ad defamatory comments and
recant her statement about revenue for a while, or (2) making a the website will sign a
the website having not paid public apology or statement recanting release of any claims it may
her ad revenue that she is her comments. have against her for her
entitled to. If Clark agrees defamatory statements about
to make this statement, the the website.
website will sign a release
of any claims it may have
against her for her
defamatory statements
about the website.

37
General Information for Both Parties

Patrick Wagner is the CEO of a social media website called The Citizen’s Forum, which
he specifically created to serve as a place for its members to engage in political discourse and to
debate current events in politics, both nationally and internationally. The Citizen’s Forum, which
has approximately 100 million users, allows each user to create his or her own page, which each
individual user can fill with posts, pictures, and videos, and users can “like” and follow other
user’s pages. As with most other social media websites, users of The Citizen’s Forum can engage
in discussion with each other through direct messages, posts to other user’s pages, and comment
threads on content posted by users. In addition to allowing pages by individual users, The
Citizen’s Forum also allows pages created by political organizations who want to push a specific
political agenda and individuals who are running for office. One unique feature of The Citizen’s
Forum is that certain users are able to monetize their pages. For any user with over 50,000
“likes” and followers, the website gives that user the option to allow ads on his or her page, with
the user getting a 4% cut of the ad revenue. Almost all of the ads allowed on The Citizen’s
Forum are political, such as campaign ads by people running for office or ads that advocate for
certain political action on various topics. The users who choose to allow ads on their pages have
no say in what ads can be placed on their page, but the website allows those placing the ads to
pick and choose what pages they want to advertise on.

One of The Citizen’s Forum’s most popular users is Becky Clark. Clark is a self-created
political commentator whose main speaking platforms are her various social media sites. Having
originated her persona on YouTube, Clark started a page on The Citizen’s Forum four years ago,
and quickly became one of the site’s most followed and controversial users. Clark is well-known
for her highly-opinionated and often finger-pointing commentary on hot-button current events
and political topics. Multiple times a week, she posts videos of herself from her YouTube
channel going on rants about different political topics and shares links to political news stories
and video clips, accompanied by lengthy posts expressing her opinions about the story or video.
Clark’s page, which she has chosen to monetize by allowing ads, has 1.2 million subscribers and
in the past year, her videos have been viewed over 12 million times.

On The Citizen’s Forum, Clark’s page is often the source of much debate. Each of her
posts and videos garners thousands of comments and shares, with users hotly debating each other
about the topics that Clark raises. Because of the angry and accusatory nature of her video rants,
Clark is often spotlighted and discussed on late-night talk shows and cable news shows and has
become well-known even beyond her social media followers.

Two weeks ago, Clark posted a link to a video that appeared to show a terrorist
organization violently holding a hostage against his will, along with one of her stereotypical
rants where she argued that the government was failing at the war on terror. Within hours of
Clark’s posting the video, The Citizen’s Forum removed the video from Clark’s page and sent
her a direct message instructing her of its policy that videos, messages, or any other propaganda
38
that originates from a terrorist organization are not allowed to be posted or shared on the website.
Before The Citizen’s Forum removed the video, the video had nearly half a million views and
was trending rapidly on the site. The next day, Clark posted one of her signature “rant” videos
directed at The Citizen’s Forum itself, expressing her outrage that the website removed the
video. As part of her rant, Clark alleged that The Citizen’s Forum is “run by a bunch of sissies
and crooks,” and that not only did the website “want to hide the truth about ISIS and the world’s
terrorists,” but also that the website “has refused to pay me thousands of dollars of ad revenue
that it owes me.”
A week later, Clark posted a similar video—one that appeared to have been created by a
terrorist organization and that showed violent imagery. Again, The Citizen’s Forum removed the
video within a few hours and sent Clark another message about the website’s policy not to allow
such content. Three days ago, Clark yet again posted a video showing violent content appearing
to come from terrorists. Within an hour, Wagner, who has spoken with Clark directly on about
her page on prior occasions, called Clark, demanded that she remove the video, and angrily told
her that if she couldn’t follow the website’s rules, her page would be shut down indefinitely.
Clark retorted that none of the videos she has posted originate from terrorists—they’re simply
videos depicting fake, staged terrorist acts, which she posted as a form of “shock advertising” to
draw attention to her commentary—and thus the website couldn’t stop her from posting them.
Wagner, fed up with Clark’s ignoring the website’s instructions not to post the videos, told her
that he didn’t care whether the videos were real or not and that the whole point of the website’s
policy was to prevent the exact kind of imagery that Clark was exploiting. The two continued to
argue for several minutes before Wagner finally vowed that he would shut down Clark’s page if
she didn’t take the video down within an hour and hung up the phone. Clark left the video on her
page and an hour later, The Citizen’s Forum, true to Wagner’s word, shut down Clark’s page
completely. Outraged about the removal of her page from the website, Clark immediately called
Wagner back and demanded that Wagner restore her page to the website. Clark again claimed
that none of the videos she has posted originate from terrorists and do not violate the company’s
policy, and thus the company had no right to shut down her page on that basis. In response,
Wagner retorted that Clark’s statements about the website refusing to pay her money are entirely
baseless and The Citizen’s Forum is considering bringing defamation charges against her if she
doesn’t recant her allegations. After exchanging more heated words over the phone, the parties
hung up. Over the course of the next day, in an exchange of emails, the parties have arranged for
an urgent meeting between their attorneys to address the problems that exist between them.

Confidential Information for The Citizen’s Forum and Patrick Wagner

Patrick Wagner is anxious to resolve the dispute between The Citizen’s Forum and Becky
Clark. Because of Clark’s visibility in the regular news media, the fact of her posting videos that
appear to depict terrorist activity and the ensuing dispute between Clark and the website have
been spotlighted on cable news shows and have been the topic of much debate. The Citizen’s
Forum has received quite a bit of negative press lately following its shutdown of Clark’s page

39
(though it has also received quite a bit of praise for its actions), and Wagner is hopeful that the
meeting with Clark can help establish clear parameters of what content the website will and will
not allow. In addition, Clark, as controversial as she is, has one of the website’s most profitable
pages and brings a lot of ad revenue to The Citizen’s Forum, which Wagner doesn’t want to lose.

Wagner wants to make it clear to Clark that one of the core values that the website
embraces is free speech, particularly political speech, but, though the website welcomes and
encourages the discussion of many topics and all opinions, the website also believes it has a
responsibility to help all of its users feel safe by disallowing certain content. The Citizen’s
Forum’s decision to ban videos, messages, or any other propaganda that originates from a
terrorist organization is not meant to ban broad, general discussion on the topic of terrorism or
how terrorism affects domestic and foreign politics. Rather, the ban is meant to make The
Citizen’s Forum a hostile place for terrorists or terrorist supporters who may try to create user
accounts and pages in an effort to distribute terrorist propaganda.

Wagner knows that one of the main points of contention between the parties is whether
and under what terms The Citizen’s Forum will allow Clark’s page to be restored to the website.
The Citizen’s Forum’s current “terms and conditions” permit the website to shut down any user’s
page for violating express content restrictions, such as its policy disallowing content originating
from a terrorist organization, and only for violating express content restrictions. Wagner had
initially felt entirely justified in the website’s decision to shut down Clark’s page based on the
videos she posted, especially after she had received multiple warnings not to post them, but in
the days since then, a team of content researchers for the website has identified the source of the
video, and, as Clark has claimed, it is not a terrorist organization. In fact, the source of all of the
videos Clark posted appears to be a group of American men who stage terrorist activity in order
to film short videos for shock value. Therefore, although the content of the videos is precisely the
sort of thing that The Citizen’s Forum’s ban on content originating from terrorist groups is meant
to prevent, none of the videos Clark posted violate the policy when read in its strictest sense.

Therefore, Wagner has reached two decisions. First, he intends to restore Clark’s page to
the website, with certain restrictions. Second, he intends to amend The Citizen’s Forum’s policy
on banning videos, messages, or any other propaganda originating from a terrorist organization
to include a provision that also disallows videos, messages, or other propaganda that depicts or
appears to depict terrorist activity. Therefore, the videos that Clark has been posting, wherever
she’s getting them from, will not be allowed under the new policy, and Wagner has instructed
The Citizen’s Forum’s attorneys to inform her that The Citizen’s Forum is taking a zero-
tolerance approach with respect to these videos. Essentially, if Clark posts any other videos from
this same group, or any videos depicting similar activity, The Citizen’s Forum will shut her page
down permanently and she will be banned from the site. Though this approach may seem
extreme, Wagner feels it is necessary to enforce the website’s policy regarding terrorist content.

40
 Wagner hopes, however, that things will never get to the point of Clark’s page being
permanently shut down. Because she did not technically violate the website’s policy, Wagner
will allow her page to be restored, but he will insist that she be subject to two restrictions. First,
for at least 30 days, Wagner will require that Clark submit all videos that she posts to her page to
the website’s user content managers to be vetted before she will be allowed to post the video,
although Wagner would like to get Clark to agree to the vetting process for as long as 90 days.
So long as Clark agrees to the vetting process as a condition of getting her page restored to the
website, he is flexible on exactly how the vetting process should be set up. He is willing to leave
the details as to how the vetting process will work in the discretion of the website’s attorneys and
he would also like them to listen to input from Clark on this matter, but he wants the vetting
agreement to include a term providing that Clark must respect the results of the vetting process
and, if she posts any content deemed unacceptable after being vetted, she forfeits her right to be a
user of The Citizen’s Forum. Second, Wagner will insist that Clark provide proper attribution for
all videos that she posts to her page. Clark’s act in posting the videos and implying through her
commentary that they showed real terrorist activity is troubling to Wagner in several ways. For
starters, her falsely representing the nature of the videos essentially amounts to lying and hurts
the website’s brand. Wagner does not want The Citizen’s Forum to become a place where its
users are known for making bold, false statements and who are willing to lie at will. Also,
Clark’s posting the videos without attribution of their source exposes both her and the website to
copyright violations, which of course Wagner wants to protect The Citizen’s Forum from. In
fact, as a stop-gap measure, Wagner will require that Clark, upon having her page restored, post
a statement explaining the source of the videos that created this mess, so as to hopefully prevent
any potential copyright violations from her posting the videos to begin with.

Wagner anticipates that Clark may argue that The Citizen’s Forum owes her monetary
damages for wrongfully shutting her page down, causing her to lose both visibility with her fan
base and ad revenue. Though Wagner concedes that the website wrongfully shut down her page
based on the policy that was in place at the time she posted the videos, he cannot imagine that
any damages she suffered as a result amount to very much. Clark averages an income of $6,000 a
month from ad revenue from her page, which breaks down to a little over $200 a day. Her page
has only been shut down for three days so far, and she is getting enough news coverage for these
events outside of the website that Wagner cannot imagine her connection to her fan base has
been hurt. If anything, she probably has had better visibility to both her fan base and the general
public because of these events. Wagner would prefer not to pay Clark anything for shutting down
her page, and he wants the website’s attorneys to try and resolve this issue with her without
offering her any money, but he has given them permission to offer up to $5,000 as a settlement in
order to placate her. Whether the website agrees to pay Clark any amount of damages or not,
Wagner has instructed the website’s attorneys that Clark should agree to sign a release of any
claim she may have against the website for shutting down her page as part of the agreement to
restore her page to the website, and an agreement to keep confidential the terms of any financial
settlement as well as the fact that there was any financial settlement at all.
Another issue that The website’s attorneys should discuss at the meeting is Clark’s
statements about the website being run by “crooks” and that the website has not paid her ad
revenue money that she is owed. Wagner has checked with the website’s accountants, who have

41
informed him that Clark has been paid everything she is entitled to from the ad revenue from her
page. Wagner isn’t sure why Clark would publicly claim that she hadn’t been paid what she was
owed, other than to make The Citizen’s Forum look bad, and if she has a basis in fact for her
statements, she will have to produce evidence of it. Because the website can show that Clark’s
statement is false, it has a strong claim of defamation against her. However, Wagner really has
no interest in getting the website caught up in litigation against one of its users for a single errant
comment, even if it was verifiably false. Wagner also doesn’t feel compelled to pressure Clark to
pay some amount of damages to settle the website’s potential claim for her statement. At this
point, Wagner really has no estimate of whether and how much the website suffered financially
from Clark’s statement, and he doesn’t think it’s worth it to invest the effort to find out. He
would be much more interested in having Clark publicly recant her statement in exchange for the
website’s release of any claim it might have against her for her statement.

Confidential Information for Becky Clark

Becky Clark is furious that The Citizen’s Forum shut down her page based on the videos
she posted. The website’s policy is clear: videos, messages, or any other propaganda that
originate from a terrorist organization are not allowed to be posted or shared on the website.
Becky has already told Wagner that the videos are not from a terrorist organization; in fact, the
source of all of the videos Clark posted is a group of American men who stage terrorist activity
to film short videos for shock value. The group of men who film these videos sometime post the
videos on their website, which is not easy to find, gets very little web traffic, and caters to a
small, niche audience of people who consider themselves to be separatists. Occasionally, the
group will send Clark its videos, asking her to post its videos to further its political messages,
along with messages about the group’s political ideologies. For the most part, Clark ignores what
the group sends her, but following a recent terrorist attack in a foreign country that killed dozens,
she had become so angry about the government’s approach to handling terrorism that she
decided to post the videos as a way to get attention for her accompanying commentary on the
subject. Her strategy worked: her posts involving the videos received hundreds of thousands of
views before being shut down, the comment threads on her page garnered thousands of
comments on the subject of terrorism and how the government handles it, and Clark was the
topic of much discussion on a variety of cable news shows.

Thus, because the videos do not violate The Citizen’s Forum’s policy on terrorist content,
Clark is adamant that her page be restored in full immediately. Clark sees part of her mission as a
political commentator as engaging the public in critical thought and debate over serious topics
that affect the country, and she holds firm to her First Amendment right to share her political
opinions. She is aware that her commentary uses a tone that is off-putting and often offensive to
some people, but she also knows she is effective in getting people to talk about important issues,

42
whether they agree with her point of view or not. Clark is prepared to provide proof that the
videos are not from a terrorist organization if that’s what it takes to get her page restored.

Additionally, she believes that she is entitled to damages for the website’s act in
wrongfully shutting down her page. The Citizen’s Forum’s current “terms and conditions” give
the website the right to shut down any user’s page for violating express content restrictions, such
as its policy disallowing content originating from a terrorist organization, and only for violating
express content restrictions. Because the videos Clark posted do not violate the policy, Clark
believes she could pursue a claim against the website that essentially amounts to a breach of
contract. With Clark’s page being monetized, the website’s shutting down her page has caused
her to lose out on ad revenue, a loss that continues to accrue every day that her page is shut
down. Right now, Clark averages an income of $6,000 a month from ad revenue from her page,
which breaks down to a little over $200 a day. Her page has only been shut down for three days
so far, so her actual damages are minimal. However, Clark believes she has a strong argument
that, because her page was abruptly shut down and has still not been restored, the value of her
page as a place for advertising will be hurt in the long run and she will lose out on ad revenue
that she would have otherwise had, though she recognizes that calculating an amount of damages
based on this theory would be largely speculative.

Therefore, she has instructed her attorneys to ask for up to $10,000 in damages to settle
any claim that she would have against the website for shutting down her page. Clark believes
strongly that The Citizen’s Forum should pay her some monetary amount to compensate her for
shutting down her page, but she expects that Wagner will resist paying her any damages. Clark’s
biggest concern is about getting her page restored to the website as quickly as possible and,
though she wants her attorneys to fight hard to get some monetary damages, she is willing, as a
last resort, to agree to forgo any payment of damages if The Citizen’s Forum will take some
measures to assure advertisers that her page is still a reliable place to advertise. As a final matter
on this issue, if the website agrees to pay her monetary damages, Clark will sign a release of any
claim she has against it for shutting her page down, but if the website does not pay her any
monetary damages, she will not sign a release of her claim.

As one final matter on the issue of her website, Clark expects that The Citizen’s Forum
will give her back the full use of her page when her page is restored. Because she did not actually
violate any of the website’s policies, there would be no reason for the website to limit any of the
functions or features of her page and Clark intends to stand firm on that, with the understanding
that she would, of course, be limited to the website’s regular policies and restrictions. Clark does,
however, suspect that Wagner may seek to institute a temporary process whereby Clark must
seek approval from the website before placing videos on her page, a vetting process of sorts,
because Wagner had mentioned this in one of his emails to her. So long as The Citizen’s Forum
agrees not to limit any of the features or functions that Clark has on her page, she is willing to
agree to a vetting process for all videos that she wants to post to her page. As part of this
agreement, Clark believes that the length of time that the vetting process should be in place
43
should be limited in duration to no more than 20 days. After all, the point of the vetting process
would only be to assure the website that Clark isn’t going to try and post illicit content, and 20
days should be plenty of time for Clark to make that assurance, although Clark has given her
attorneys authority to agree to a 60-day duration for the vetting process if necessary. Clark is
willing to leave the details as to how the vetting process will work in her attorneys’ discretion,
but she wants the vetting agreement to include a term providing that The Citizen’s Forum will
issue a decision within 24 hours of receipt of the video from Clark whether her proposed videos
will be allowed or not.

A final matter that Clark’s attorneys should discuss with The Citizen’s Forum is Clark’s
statement that the website has not paid her all of the ad revenue that she is entitled to. Wagner
threatened a defamation suit against her based on this statement, and Clark wants her attorneys to
use this meeting as an opportunity to clear the air and hopefully resolve any potential defamation
claim that The Citizen’s Forum may be considering. Clark’s statement that the website has not
paid her ad revenue that she is entitled to is false and was something that Clark said in the heat of
the moment when she was angry about the website’s decision to remove the video she had
posted. About a year ago, Clark disagreed with one of the website’s account managers over how
much she should be paid from ad revenue, but they were able to resolve the issue to Clark’s
satisfaction. In fact, she doesn’t think that particular account manager even works for the website
anymore, so she hasn’t had any further problems getting paid. Clark really hopes that the website
is not serious about pursing monetary damages for her statement, as she is not in a financial
position to pay out a judgment, even a small one. If Wagner does want some kind of monetary
payment in settlement of the website’s claim, then Clark has suggested that her attorneys offer to
forfeit some of her ad revenue going forward to cover the amount. However, if Wagner is willing
to accept some non-monetary consideration in settlement of the website’s claim, such as an
apology or public statement, then Clark has authorized her attorneys to oblige.

44