Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts
Posted: January 29, 2017

Plaintiff Fails to State Claim for Reporter’s Failure to Publish Article Based on Plaintiffs’ Exclusive Information

On January 13, 2017, Justice Ramos of the New York County Commercial Division issued a decision in Rondeau v. Berman, 2017 NY Slip Op. 30079(U), holding a plaintiff had failed to state a claim for breach of contract arising from a reporter’s failure to publish an article based on the plaintiff’s exclusive tip.

In Rondeau, the

Plaintiff, an athletic performance coach, created a program (the “Free Throw Program”) to assist basketball players in improving their free throw shooting. . . . In April 1999, Plaintiff alleges that he began to work with Allan Houston, a former player of the New York Knickerbockers to help him improve his shooting through the Mental zone Program. . . . In June 1999, Plaintiff first met Berman, when Berman was covering The Knicks during the NBA Finals. Plaintiff and Berman did not have any further contact until December 2007. On June 22, 2009, Plaintiff alleges that he contacted Berman via e-mail, notifying him that he had newsworthy information that
Berman may be interested in. Plaintiff and Berman met in person on July 2, 2009 and Plaintiff notified Berman of his willingness to give Berman “exclusive” entitlement to a newsworthy article.

Berman did not end up publishing the article; the plaintiff in response brought an action against him and others. The court dismissed the plaintiff’s breach of contract claim, explaining:

The issue is whether the terms of the alleged oral contract are sufficiently definite to give rise to an enforceable agreement. Although a manifestation of intention may be perceived as an offer, it cannot be considered a contract unless its terms are reasonably certain. Thus, a mere agreement to agree, in which a material term is left open for future negotiations, is too vague to be enforceable.

Here, Plaintiff alleges that Berman agreed to write an article containing newsworthy information regarding Plaintiff’s success with the Knicks, his meeting with The Knicks’ executive Glen Grunwald (“Grunwald”), Grunwald’s decision to not hire Plaintiff, and The Knicks’ recent downfall. However, Plaintiff fails to allege that there was an agreement as to the date of publication, the length of the Newsworthy Article, whether it would appear in the New York Post, specific research guidelines, and the content of said article, which are all material terms.

Further, Plaintiff does not allege that there was an agreement as to Plaintiff’s remedy should the Newsworthy Article not be published. The alleged contract was merely an agreement to agree that Berman would publish an article in exchange for exclusivity. Because the alleged oral contract is too vague to ascertain
its material terms, it is not capable of being enforced.

(Internal quotations and citations omitted).

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