So we're talking here about the limitation on avoidable damages. Which is sometimes called the duty to mitigate damages. And the rule here is that when the non breaching party is able to avoid losses. They can't claim those avoidable losses in their claims for money damages from the breaching party. So let me offer a pretty fun, interesting case that I think helps tweak some of these intuitions here. So the case is of Shirley MacLaine Parker versus 20th Century Fox. Shirley MacLaine Parker, now known as Shirley MacLaine is an actress who has been hired to star in a movie 20 Century. Fox production that is called Bloomer Girl. So she contracts in 1965 to play the female lead in a movie called Bloomer Girl and Bloomer Girl as a movie about a woman. Who basically does union organizing in a clothing factory. In April 1966, Fox notified Mclean Parker that bloomer girl was being canceled. They are going to produce the movie. And so she says basically, okay but you have to pay me for it anyway, you're breaching my contract. And so she basically want to sue or claim for the amount of money they were going to pay her, which is something like $800,000. And Fox responds and says, we don't have to pay you for any damages for any losses salary, losses that you could have avoided. And we are telling you that you can avoid the losses here by starring in a different film of ours. And that film's title is Big Country, Big Man. Big Country. Big Man is a western in which Shirley MacLaine Parker would play the love interest. The question here for the court is, can Shirley MacLaine Parker claim money damages for the salary that she lost for bloomer girl. When she was being offered another film with the same salary. And here is what the court says. The rule is, the court says that the rule is that the employer must show that the other employment in this case. The employment of being in a big country big man was comparable. Or substantially similar to that of which the employee has been deprived. Rejection of employment of a different or inferior kind may not be resorted to. 20 Century Fox argued for a different rule. They argued that the rule ought to be what a reasonable person except this alternative employment. But the court said, no, that's not the rule. The rule is, did the employee make reasonable efforts to obtain other employment? And if so, is the other employment available comparable or substantially similar. Now, in this case, the reasonable efforts is sort of irrelevant. Because they're on a deadline, basically, you can't just find work as a movie star with six weeks to go. Which basically what they had six weeks of lead time here. And so what Fox said was, yes, I understand, but that she can't work for some other studio. But we are offering a movie that's available right now. And so then Shawn McClain Parker's attorneys had to argue this employment is different or inferior in ways that matter. And they had a whole bunch of different arguments including that she was going to star in a musical bloomer girl. And she's a singer and dancer, whereas Big Country Big Man is a Western bloomer Girl is going to be filmed in California. Where as Big Country Big Man would require her to go film in Australia. In bloomer Girl, she was going to have both director approval. And dance director approval and screenplay approval in a big country Big man. She would have none of those things and the court said this is a different. And inferior employment based on all of these things that are quite different between these movies having to go to Australia, not getting screenplay. And director approval right? Essentially we're going to have approval over who her boss would be kind of in the original for bloomer Girl here, she wouldn't be. Now this can sort of be a tough pill to swallow because what 20 Century. Fox wanted to argue was, well now she's going to be overcompensated. Basically, we're going to end up having to pay her her full salary even though she's not going to spend any time or energy or effort, right. And what she says is that's actually not the right way to think about this. Because if you think about it, what I was going to get out of bloomer girl was a really enjoyable fulfilling experience. Maybe a film that was going to be sort of critically acclaimed. That was in line with my values, something like that. Typically the way that you measure expectation damages in the case of an employer breach is just the salary that they were going to be paid, minds with the employee. Could have earned if they went out and found another job in this case. Mclean Parker can't, for example, sue and say I've had huge reputation losses here. Or I was going to make an Oscar award winning film instead, you're asking me to star in a film that was going to be bad. Or starring in no film and I'm going to lose reputation. Because she was going to be constrained by the doctrine of certainty by the limitations on certain damages. And so the idea is, it's not obvious who loses here, right? It's not obvious whether in fact she's getting paid to take a very expensive vacation. Or whether or not the studio is actually sort of causing her the loss of this huge opportunity for her career. Now, one of the ways that you can think about why the court is insistent on requiring that employers show that the work that the employee turned down was not different. Or inferior is because you can think about how there are some problems applying the principle of avoid ability to an employment case. So imagine we say, listen, Shirley MacLaine Parker has a duty to mitigate duty to mitigate means. That the studio doesn't know her for any damages, that she could have avoided. Any losses she could have avoided in the studio says, listen. I know there's not a film available to you, but why don't you take a job as a key grip on a film for a little while. At least make a little bit of money, I don't want to pay your full salary or here. Why don't you take a job as a receptionist or as a construction worker on a film? We have that right. It would suggest that basically they don't have to pay her for any kind of subpar obviously sort of poor employment opportunity that comes her way. Similarly, you might think twice about sort of insisting that if the studio has breached their obligation to let her star in Hamlet. That if they offer her an opportunity to start in rainbow seven. That they have sort of made it up to her and their personal freedom interests at stake. So here Julie McClain Parker was able to be paid her full salary. The court said she may have a duty to mitigate, but in this case mitigation would not include taking a job of different. Or inferior nature and that's what starring in big country. Big man would have been.
