While at LegalTech on Tuesday, I picked up a free copy of the New York Law Journal, just for the sheer novelty of reading it in newsprint.
One item that caught my eye was an account of WebMD LLC v. RDA International Inc., No. 102830/08, 2009 WL 175036 (N.Y. Sup. Ct. Jan. 6, 2009). (Click here to go to the online version of this article (subscription required); click here to go to the ContractsProf Blog account.)
In an internet advertising contract between the litigants, WebMD promised RDA, an advertiser, that a given website would get 36,000 visitors. Subsequently RDA failed to pay in full what it owed under the contract, WebMD sued, and as an affirmative defense RDA claimed that WebMD hadn’t performed, in that WebMD had failed to provide 36,000 “unique” visitors.
This case brings to mind Frigaliment, the case that famously concerned whether an order for “chickens” was for young chickens or for chickens of any age that met the weight and quality specifications. (Frigaliment is mentioned in MSCD 6.5.) The issue raised is that of lexical ambiguity, which arises when the context is insufficient to allow one to determine the sense of a word that has more than one meaning.
But unlike the court in Frigaliment, the court in this case found no ambiguity:
Here, although undefined, the term “visitors” is unambiguous. The definitions advanced by the organizations quoted by defendant refer to “unique visitors,” and do not define the term “visitor” to mean “unique visitor.” If defendant wished to be guaranteed “unique visitors” to the site, it should have specified such in the agreement.
This case played out differently than Frigaliment presumably because RDA had what seems a tougher argument—that the adjective “unique” was in effect meaningless.
But I have some sympathy for RDA—I think “visitor” is ambiguous. After all, if your niece Sally visits your summer rental each weekend during the eight weeks you have it, and she’s you’re only visitor, it’s not likely that you’d subsequently say that you had eight visitors. Instead, you’d likely say you had one visitor. In other words, sometimes the word “visitor” is used colloquially to mean “unique visitor,” with the result that you can have fewer visitors than visits.
On the other hand, if a museum announces that it had 24,378 visitors one month, you can be sure that if John Doe visited the museum three times, he was counted as three visitors, not one. When visitors are anonymous, there’s no such thing as a unique visitor.
How that ambiguity plays out in this context would depend on the intend of the parties. That in turn might be a function, at least in part, of the practice in the industry.
So what does this mean for the contract drafter? Keep your eyes peeled for lexical ambiguity, and run the other way when you spot it. In this case, RDA would have been advised to insist that the provision refer to “unique visitors.” (WebMD might have insisted that the number be reduced from 36,000.) Or the parties could have added something along the lines of the following: “Each visit to the Website will be deemed to have been made by a unique visitor, even if that visit was made by a person who made one or more additional visits to the Website during the period in question.”
Mind you, I’m acutely aware that spotting lexical ambiguity is easier said than done.
Finally, I’m not suggesting that RDA might have prevailed in court if its counsel had made a better argument regarding ambiguity. RDA was not a particularly sympathetic defendant. In the words of the court:
From the documents submitted, it appears that defendant partially paid for plaintiff’s services, never complained about those services until served with notice of the instant lawsuit, received invoices based on the agreements to which it did not object, and acknowledged the entire debt claimed by plaintiff, offering a pay out plan. Additionally, in its opposition, defendant allows that, even under defendant’s interpretation of the contract terms, plaintiff performed at least 70% of its obligations.