Reality show icon, fashion model, and now “defendant”—Kendall Jenner was recently sued for $1.8 million by Italian fashion company Liu Jo for allegedly breaching a modeling contract. The lawsuit, filed in the U.S. District Court for the Southern District of New York, claims Jenner agreed to appear in two photo shoots but only participated in one. The contract purportedly stated Jenner would receive $1.5 million and a 20% service fee for appearing in both photo shoots, and Liu Jo delivered a “significant portion” of this total payment to Jenner, expending about $1.3 million after travel expenses and other costs associated with Jenner’s singular appearance. The second photo shoot, which Jenner allegedly skipped, was initially scheduled for March 2020—the beginning of the COVID-19 pandemic in the U.S. The March 2020 photo shoot was postponed due to the pandemic, and Liu Jo allegedly tried multiple times to reschedule, but Jenner failed to respond and did not reimburse Liu Jo for any amount. A representative for Jenner stated the suit is “without merit” and that Jenner “has continually offered Liu Jo alternative dates and locations to fulfill an agreement that was forced to be delayed because of the coronavirus pandemic.”
While Jenner’s asserted defenses remain to be seen, we can expect she might raise affirmative defenses of impossibility of performance, frustration of purpose, and/or force majeure. In North Carolina, the impossibility defense excuses performance pursuant to a contract “where performance is rendered impossible by the law, provided the promisor is not at fault and has not assumed the risk of performing, whether impossible or not.” Under the doctrine of frustration, “performance remains possible, but is excused whenever a fortuitous event supervenes to cause a failure of the consideration or a practically total destruction of the expected value of the performance.” Finally, force majeure applies where a “superior force”—e.g., a natural disaster (or, in Jenner’s case, a global pandemic)—excuses performance by a party. Whether these defenses will be successful will depend on many factors; however, such defenses are likely to appear frequently over the next few years, as litigation related to the COVID‑19 pandemic is sure to become prevalent.
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