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Tiki Is the Barber of Civil [Lawsuit], Figaro!

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Although once idolized for his feats on the football field and later respected as an affable, Cheshire-grinned news and sports correspondent, these days Tiki Barber is making a lot of folks very unhappy. The short list presumably includes:

  1. Ginny, Tiki's wife of 11 years whom he allegedly left for a twenty-something year old intern while Ginny was eight months pregnant with twins;
  2. NBC, the network which hired Tiki as a contributor on The Today Show, as well as an analyst on its weekly Sunday Night Football telecast, following his retirement from the NFL; and, perhaps even,
  3. Tiki's identical twin brother, Ronde, who has undoubtedly found himself at the wrong end of misdirected glares from Ginny sympathizers.

A recent addition to the list is Tricera Revolution, Inc., corporate owner and operator of Flywheel Sports, a self-described "specialized and state-of-the-art" chain of indoor cycling studios in the New York area. Earlier this month, Tricera filed a lawsuit against the former New York Giants running back, as well as his business agent and LLC, seeking rescission of an October 2009 agreement with Tiki. Under the terms of the contract, Tiki purportedly agreed to be the "face" of the Flywheel Sports brand in exchange for, among other things, 10,000 shares of stock in Tricera. The suit alleges that Tiki fraudulently induced Tricera to enter into the contract by "cultivating a false appearance that [he] and his wife were happily married," and also breached the contract by failing to promote the brand.

From a legal standpoint, I find the fraudulent inducement claim particularly, well, puzzling. In New York and in most other places (the complaint does not appear to attach the contract or specify whether its choice of law provision provides for New York law or the law of another State), the legal elements of a claim of fraudulent inducement are the plaintiff's knowingly false representation of material fact and justifiable reliance thereon by the defendant to its detriment. Thus, if one closely adheres to the letter of the law, it is difficult to fathom how Tiki could be liable for such a claim based on the alleged facts.

As an initial matter, the complaint fails to allege a misrepresentation. Instead, the complaint simply says that Tiki "cultivat[ed] a false appearance" that he and his wife were "happily married" by, among other things, "hugging and kissing and posing for hundreds of photographs and video clips together" at events. Come on. In my view, this is tantamount to a candidate showing up for a legal interview in a Stanford Law School t-shirt and, after hiring the candidate and subsequently learning the candidate did not attend law school at all, having the employer claim it was fraudulently induced into entering into an employment agreement with the candidate. Hugs and kisses -- like t-shirts -- are not actionable misrepresentations.

Other facts alleged in the complaint are equally unconvincing in terms of establishing liability. For example, Tricera pleads that Barber and his wife have been separated since "late-2009." This, however, says nothing about the state of the Barber marriage prior to the inking of Tiki's deal with Tricera in October 2009, which is the only relevant period in terms of the fraudulent inducement claim. Thus, without Tiki's having made a statement regarding the status of his marital relationship at the time he entered into the deal, I fail to see how Tricera gets anywhere.

Well, you might say, what about Tiki's obligation to affirmatively disclose the affair to Tricera? My response: what duty? Arguably, Tiki may have had an ethical or moral duty to be forthcoming to Tricera (or to refrain from engaging in an extramarital affair, for that matter), but this is not the same thing as having a legal duty of disclosure. Generally speaking, the law imposes duties of affirmative disclosure only within the context of certain types of special relationships (e.g., fiduciary or confidential relationships). Unfortunately for Tricera, this isn't one of them.

As for its breach of contract claim, Tricera must prove that it suffered damages as a proximate result of Tiki's alleged breaches. It is one thing for Tricera to seek damages for the money it spent on marketing and promotional materials for Tiki. However, proving that people actually turned in their cycling memberships (or, alternatively, joined a different cycling studio up the block) because of Tiki's alleged behavior is a substantially more difficult task. Even if Tricera could establish that the alleged affair negatively impacted its bottom line, Tricera has a legal obligation to mitigate its damages. Of course, where is Tricera going to find another bald African American NFL player of the same age, height and weight, who also possesses a million-dollar grin? Can someone please give Tricera Ronde's number?!