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Writing Sample of Tilak Gupta

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This memorandum was submitted as a graded assignment for my Legal Research and Writing Class. The memorandum explores if a six year exclusivity clause (similar to a business non-compete clause) is unconscionable, even though the industry norm is three years. I represented the Plaintiffs and had to persuasively argue that the clause was not unconscionable.

Tilak Gupta State Bar No. 987321 Olympic Partners, LLP 1441 W. Olympic Blvd. Los Angeles, CA 90015 Attorney for Plaintiffs Savory Production Co. and Get Real Network SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES

SAVORY PRODUCTION CO. AND GET REAL NETWORK, Plaintiffs, vs. GIOVANNA CHANG, Defendant

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. C 547352 PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT Date: April 7, 2011 Time: 6:00 PM Place: Casassa 403

TO DEFENDANT GIOVANNA CHANG AND HER ATTORNEY OF RECORD:

Plaintiffs SAVORY PRODUCTION CO. AND GET REAL NETWORK submit this Memorandum of Points and Authorities in Opposition to Defendants Motion for Summary Judgment.

Dated: March 27, 2011 By Tilak Gupta Attorney for Plaintiffs SAVORY PRODUCTION CO. AND GET REAL NETWOR

TABLE OF CONTENTS
I. II. III.

INTRODUCTION1 STATEMENT OF THE CASE.3 THE EXCLUSIVITY AGREEMENT WAS PROCEDURALLY AND SUBSTANTIVELY FAIR BECAUSE MS.CHANG WAS GIVEN A FAIR BARGAIN AND WAS ABLE TO NEGOTIATE... 5
A.

The Contract Was Procedurally Equitable Because the Plaintiffs Allowed Ms. Chang to Negotiate the Contract7
1.

Ms. Changs ability to change a clause in the contract indicated fairness and equal bargaining power..8 That Ms. Chang was aware of the exclusivity clause was evidenced by the fact she underlined a phrase in the same paragraph of the clear and straightforward contract.11

2.

B.

The Contract Terms Reflected A Fair Bargain For Both Parties...12


1.

Ms. Changs reasonable expectations were met because the plaintiffs were acting according to the industry custom...14 The terms did not shock the conscience because they were common in the industry16 The circumstances are justified and the allocation of risks is not one-sided because the plaintiffs just wanted to make a sufficient return on their investments...18

2.

3.

IV.

CONCLUSION...21

MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION


Many people come to America solely for the rare opportunities given to Ms. Chang. Others, such as the Plaintiffs, start businesses in America because they feel more confident that they will not face excessive barriers in obtaining sufficient returns on their investments. Everyone in America wants and deserves a chance to succeed, even the Plaintiffs. The Court should keep this principle and deny Defendants motion for summary judgment. Incorporating exclusivity agreements, such as the one at issue, are common in the industry because network shows would not be able to make a sufficient return on their investment otherwise. While the exclusivity agreement here exceeds the industry norm of three years, it is justified by trends in cable television that give more shelf life to shows and face time to contestants, such as Ms. Chang. If Savory Production Company and Get Real Network (Plaintiffs) are forced to adhere to a three year exclusivity agreement, they will be unable to obtain sufficient returns on their investments. In fact, the Plaintiffs may decide the costs of limiting their exclusivity agreement to three years are not worth the benefit of the show and, thus, cancel their shows. If such shows are canceled, future contestants would be unable to showcase their skills, similar to Ms. Changs situation. Thus, by granting summary judgment, the Court can harm the very contestants that the Defendant alleges are subjected to unfair terms. The Plaintiffs, only after discovering from a press member that she was violating her exclusivity agreement and appearing on a competing show, filed the complaint to enjoin Ms. Chang. The Defendant responded to the contractual claim and discovery was completed. Thereafter, the Defendant filed a motion for summary judgment, alleging the contract is unconscionable. The Plaintiffs oppose the motion and humbly request the Court to deny the

motion for summary judgment because the contract is fair. The allocation of risks was in Ms. Changs favor and the Plaintiffs faced the entire financial burden. If the show was unsuccessful, Ms. Chang could simply return to her old job, but the Plaintiffs would be negatively impacted to some extent.

I. STATEMENT OF THE CASE


Ms. Giovanna Chang voluntarily entered into a contract, after negotiations and without time constraints, with the Plaintiffs in order to become a contestant on So You Think You Can Cook. The president of the network, Mr. Mason Benton, who himself worked his way up to success, personally met with Ms. Chang for an entire forty-five minutes to sign the short, straightforward contract. The contract contained an exclusivity agreement, which is common in the industry and signed by all contestants. The agreement plainly stated, among other things, that all contestants could not appear on other networks in a cooking capacity or publish cookbooks of the recipes developed solely for the show for a specified number of years without express permission. The deposition expert, Mr. Michael Aaron, said the rationale was for networks to get a sufficient return on investments where they took all the financial risks. The small network company needed Ms. Chang to improve their novel show, just as much as she needed this rare opportunity. It was looking for someone with youthful exuberance, which Ms. Chang demonstrated. While Ms. Chang was young and was unable to go to college the awed network president did not consider her unsophisticated. She appeared to be a professional, successfully making a transition from waitress to respectable chef in only six months at her old job. President Mason Benton was intrigued by Ms. Changs youth, leading him to chose her over many other contestants and alter the required number of recipes from forty to thirty at her

request. Similarly, Ms. Chang was intrigued by the chance of becoming well-known at such a young age and willingly chose to leave her old job for the show. The contract had a six year term. Although the norm is a three year term, six year durations have been implemented. The network itself previously had three year exclusivity agreements and only recently expanded to six years. Cable television has changed drastically and contestants are getting more public exposure. Because of the changing times, the network reasoned it would be difficult to make a sufficient return on their investments without longer exclusivity contracts. Still, the network was willing to negotiate and told Ms. Chang she could see a lawyer before signing. Although she did not see a lawyer, Ms. Chang took the contract home to review it and successfully negotiated the recipe term. The Plaintiffs never tried to monitor or restrict Ms. Chang in any way. In the meantime, she earned $20,000 on the show, was able to set up her own successful restaurant, and was able to plan future investments such as her own food truck. After the exclusivity clause expires, Ms. Chang will be able to appear on competing shows without having to sign exclusivity agreements, which is a privilege well-established chefs are normally given. Still, Ms. Chang violated the exclusivity agreement.

II. THE EXCLUSIVITY AGREEMENT IS FAIR BECAUSE THE PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY STANDARDS ARE NOT MET
The exclusivity agreement was fair because Ms. Chang had opportunities to negotiate and the terms were fair. While a court can refuse to enforce a contract it finds unconscionable, it shall first afford the parties a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect. Cal. Civ. 1670.5 (West 2010). The claimant has the burden of proving unconscionability. Id. California courts have interpreted unconscionability in two forms of analysis. The first analysis asks whether the contract is one of adhesion, where the drafting party

does not permit negotiation; the contract is deemed unconscionable only if it is overly oppressive and does not fall within the reasonable expectations of the adhering party. Armendariz v. Foundation Health Psychcare Sevices, Inc, 24 Cal.4th 83, 113 (2000). The second form of analysis intends to protect the weaker party, but only after it proves that the drafting party engaged in questionable procedural practices that may result in oppression and unfair surprise and when the substantive terms are unfair or one-sided. A & M Produce Co. v. FMC Corp, 135 Cal.App.3d 473, 486 (1982). From such prerequisites, the two elements of procedural and substantive unconscionability developed, and most California cases use this second form of analysis. American Software, Inc. v. Ali, 46 Cal.App.4th 1386, 1390 (1996). The Court should use the second form of analysis. It is not depriving the Defendant by doing so. Regardless of which test is used, the result will be the same because the adhesion analysis is essentially a presumption of procedural unconscionability. Flores v. Transamerica HomeFirst, Inc, 93 Cal.App.4th 846, 853 (2001). While substantive and procedural unconscionability are determined according to a sliding scale, the contract is fair if the claimant does not satisfy the burden of showing each element to a certain degree. Armendariz, 24 Cal.4th at 114. Procedural unconscionability focuses on the negotiation aspect of contracting, while substantive unconscionability focuses on the contractual terms. Id. Here, neither element exists because Ms. Chang was able to negotiate the contract and the terms were fair. The Plaintiffs only wanted to make sufficient returns on their contestants. Furthermore, the claimant has to prove unconscionability at the time of contracting, not in hindsight. American Software, Inc, 46 Cal.App.4th at 1390. Although six years may seem lengthy in hindsight, the duration is fair at the time of contracting considering the potential benefits Ms. Chang could have received. Even in hindsight, Ms. Chang is not burdened because

of the benefits she received from the show. She only has to wait seven more months. As a successful chef, she may have the ability to delay production on the competing show until the exclusivity clause expires. Additionally, the Defendant had equal bargaining power because the network desperately needed Ms. Changs youthful exuberance. Thus, the exclusivity agreement is fair, and Ms. Chang cannot satisfy the burden of proof on either element.
A.

The Contract Was Procedurally Equitable Because the Plaintiffs Allowed Ms. Chang to Negotiate the Contract

The contract was procedurally fair because of Ms. Changs ability to negotiate. To establish procedural unconscionability, the claimant must prove the contract was unfairly negotiated and the circumstances of the parties led to an unfair result. Id. Further, the claimant must demonstrate something indicating procedural unconscionability, such as oppression, arising from inequality of bargaining power and the absence of real negotiation or a meaningful choice and surprise, resulting from hiding the disputed term. Id. at 1391. Here, the Plaintiffs did nothing indicative of procedural unconscionability. Ms. Chang had the opportunity to take the contract home, consult a lawyer, and negotiate terms. In fact, the Plaintiffs changed a term she asked to be altered. While the term negotiated was arguably not as significant as the exclusivity clause, the Defendant had sufficient bargaining power. The Plaintiffs should not be blameworthy if Ms. Chang chose not to negotiate more, especially after she had ample opportunity to do so.
1.

Ms. Changs ability to change a clause in the contract indicated fairness and equal bargaining power.

The contract was equally bargained because Ms. Chang had the ability to alter contractual terms. To demonstrate oppression, the non-drafting party must prove the high burden of excessively unequal bargaining power, an absence of negotiation, and an absence of meaningful

choice. A & M Produce Co., 135 Cal.App.3d at 486. In A & M Produce Co., the consequential damages and warranty disclaimers were found unconscionable only because the defendants never attempted to enlighten the plaintiff about them; the plaintiffs were not made aware of the limited circumstances where negotiation was possible. Id. at 491. The courts policy was to protect parties that would have never assented if they were actually aware of the term or had a meaningful choice. Id. at 490. Furthermore, even if there is a contract of adhesion, a standardized contract signed without an opportunity to negotiate, the contract is only oppressive if the claimant can prove a lack of both an ability to bargain and a realistic opportunity to look elsewhere for a more favorable contract. Morris v. Redwood Empire Bancorp, 128 Cal.App.4th 1305, 1320 (2005). In Morris, although the plaintiff had little opportunity to negotiate the contract, he failed to prove that he could not have obtained merchant credit card services with more favorable terms elsewhere. Id. at 1320. To demonstrate procedural unconscionability, the claimant must prove a lack of reasonably available alternative choices. Carboni v. Arrospide, 2 Cal. App.4th 76, 86 (1991). In Carboni, the court found sufficient proof of unequal bargaining power since the borrower could not obtain a loan elsewhere and the contract was offered on a take it or leave it basis. Id. at 85. The courts policy was to make sure the non-drafting party has fair bargaining power. Id. at 86. Ms. Chang had an alternative choice instead of agreeing to the contract. She was able to negotiate terms in the contract and was given the opportunity to completely understand the contract before signing. The case is distinguishable from Carboni because Ms. Chang did not sign the contract under emotional distress. Although she alleges she had no other choice because she felt she would not get such an opportunity again, Ms. Chang acted far from emotionally

distressed at the time of contracting. In fact, she was excited about the ability to further her career and even left her old job for this opportunity. The Plaintiffs only asked for the exclusivity agreement, an industry-approved compromise, in return for the rare chance. Like Morris, even if Ms. Chang did not feel comfortable with the terms, she had the meaningful choice of trying out on another show. At the very least, she could have altered the terms with the negotiation-friendly plaintiffs or chosen not to sign until she felt comfortable, especially after the plaintiffs gave her as much time as she needed to think the contract over. Yet, she herself saw a window of opportunity that she did not want to give up. Ms. Chang knew she was able to negotiate the contract. The plaintiffs allowed her to take the contract home and consult a lawyer if she desired; they even changed a term she asked to be altered. The case is distinguished from A & M Produce Co where the drafting party never attempted to make the other party aware of contractual terms. Even if the agreement is seen as a contract of adhesion because Ms. Chang was never specifically told about the exclusivity clause and to take or leave the ultimate contract, the Plaintiffs were still willing to let Ms. Chang take her time reviewing the contract and clear up any confusion she had in the straightforward, relatively short contract. Although Ms. Chang claims she would have not agreed to the term if she knew what it meant, she is speaking in hindsght. She had reasonable alternatives such as trying out for another show, or at the very least, negotiating more vigorously. Ms. Chang, at this point, realizes she made a bad deal. However, the law does not let parties get out of contractual obligations simply because they made a bad deal. Unequal bargaining power means one party had unfair leverage over the other. However, the evidence indicates that Ms. Chang would have likely agreed to the term, even if she knew exactly what it meant. She was extremely excited and did not want to

pass up such a rare opportunity. Furthermore, Ms. Chang had tremendous leverage over the Plaintiffs as well, as they would be deprived of her youthful exuberance if she walked away. The exclusivity agreement, therefore, was equally bargained.
2.

That Ms. Chang was aware of the exclusivity clause was evidenced by the fact she underlined a phrase in the same paragraph of the clear and straightforward contract.

Equal bargaining power is only one indicator of procedural fairness. The claimant must also prove an element of surprise in the way the contract is structured. For example, if important terms are put in a smaller font and hidden in a long contract, the surprise element is met.

Ms. Chang was aware of the exclusivity clause because she underlined a phrase in the same paragraph. To prove surprise, the non-drafting party must demonstrate that contentious terms were hidden. A & M Produce Co, 135 Cal.App.3d at 486. In A & M Produce Co, the disclaimers were found procedurally unconscionable because the terms were not apparent, only casually shown, and hidden in the middle of a long contract. Id. at 490. The policy in the case was to protect entities with relatively little bargaining power. Id. at 489. A claimant with the ability to read and understand the contract is sufficiently protected. Chretian v. Donald L. Bren Co, 151 Cal.App.3d 385, 389 (1984). The court was satisfied that the plaintiff had sufficient bargaining power because of his ability to negotiate the contract. Id. Ms. Chang underlined something in the same paragraph as the exclusivity clause, indicating awareness. The case is distinguishable from A & M Produce Co, because the contract here is straightforward and short. It is only five pages with nothing hidden. The text is all in the same font and easy to read. Like Chretian, the terms were not casually shown, as Ms. Chang had sufficient opportunity to review them and clear up confusing terms in the forty-five minutes the

Plaintiffs spent with her. If contracts are clear, it is bad public policy to retract them in courts. While a contract takes only a few minutes to go over and sign, the Plaintiffs spent an entire fortyfive minutes trying to help Ms. Chang understand all of the terms.
B.

The Contract was Substantively Impartial and Fair

Even if the court finds slight procedural unconscionability, the contract is still enforceable if the claimant cannot prove sufficient substantive unfairness. Marin Storage & Trucking, Inc. v. Benco Contracting and Engineering, Inc., 89 Cal.App.4th 1042, 1057 (2001). Substantive unconscionability requires that the claimant prove the terms were unfair, not only the process of negotiation. American Software, Inc., 46 Cal.App.4th at1390. The actual terms are fair unless the claimant can prove they were so one-sided as to shock the conscience. Id. at 1391. In the alternative, some California courts use the reasonable standard to determine if the terms are unfair. The former standard of shocking the conscience is more proper because the reasonable standard has been established as inherently subjective by many courts. Id. The exclusivity clause does not shock the conscience because the provision is a common term in the industry. Even if the reasonable standard is used, the exclusivity clause was still fair. Exclusivity agreements are intended to protect networks from competitors, who prematurely try stealing contestants that the network tirelessly worked to promote. Although the exclusivity agreement in this case was longer than the industry norm, the reasons were justified. The exclusivity agreement has been lengthened for the first time. The Plaintiffs lengthened it only after carefully considering the trends in cable television. Times have changed, and contestants get more opportunities to promote themselves. A longer exclusivity agreement is fair in exchange for such a benefit. Furthermore, the terms are fair, because the Plaintiffs bear the allocation of the risks monetarily. If the show is a failure, Ms. Chang is unaffected financially

and may even get an opportunity elsewhere. However, the Plaintiffs would definitely suffer, at least in the short term. Thus, the industry-approved contract should be deemed fair.

1. Ms. Changs reasonable expectations were met because the plaintiffs were acting according to the industry custom.
The Plaintiffs followed a common industry custom, thereby acting within the reasonable expectations of Ms. Chang. At the very least, claimants must satisfy the burden of showing that their reasonable expectations were frustrated by a contractual provision. Marin Storage & Trucking, Inc, 89 Cal.App.4th at 1057. In Marin Storage & Trucking, Inc, the indemnity provision was fair, because the term was common in the industry and Benco would have found the same term everywhere. Id. at 1057. In fact, even if the claimant does not have completely equal bargaining power and did not expect the exact term in issue, such contracts will routinely enforced as long as there is substantive reasonableness. Ellis v. McKinnon Broadcasting Co, 18 Cal.App.4th 1796, 1805 (1993). In Ellis, an advertising salesman was referred to a forfeiture clause that was unfair only because the clause was considered a penalty far in excess of any potential detriment suffered by the defendant; thus, the clause was commercially unreasonable. Id. at 1807. The courts policy was to find contracts fair where there were compelling justifications for them. Id. at 1805. The Plaintiffs have compelling justifications here. While the case is distinguishable from Marin Storage & Trucking, Inc. because Benco was doing business in the industry for several years, Ms. Chang would have been subject to the same provision anywhere she went. Unlike Ellis, the Plaintiffs were justified in drafting the exclusivity clause. Even if Ms. Chang signed with another network, it is highly unlikely the network would be willing to negotiate the exclusivity agreement. Otherwise, the other network would not be incentivized to promote

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contestants like Ms. Chang, who should not be able to argue that she did not know of the exclusivity clause simply because she was new to the industry. If the Court allows Ms. Changs defense, the decision can potentially create a floodgate of cases and could negatively affect the economy. In such shows, the majority of the contestants are newcomers, who are unfamiliar with the industry and looking for an opportunity to succeed. If such networks are forced to devote more resources to making sure newcomers understand all the industry practices, they might decide the costs exceed the benefits and chose to create shows with better established contestants instead. If the Defendant wins, the newcomers will be deprived of a great opportunity and the Court will be harming the very contestants it intended to help. Since the exclusivity clause was a common industry custom, the Plaintiffs met Ms. Changs reasonable expectations. In addition to the reasonable expectation standard, the claimant must prove that the terms shocked the conscience or were unreasonable, depending on the court. The courts rationale is that significantly weaker parties should not be subject to excessively shocking terms, even if they expected them.

2. The terms did not shock the conscience because they were common in the industry.
The exclusivity clause did not shock the conscience here because the entire network industry needed the term to make a sufficient return on their investments. The claimant has to satisfy the high burden of unfairness by demonstrating the contractual term is so one-sided that it shocks the conscience. American Software, Inc. v. Ali, 46 Cal.App.4th 1386, 1391 (1996). In American Software, Inc., the contract had a clause that terminated an employees right to commission for payments received thirty days after severance of employment; the contract was

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not unconscionable because it was common in the industry. Id. at 1393. The courts policy rationale was to encourage salespersons to stay with the employers, who would face an excessive burden otherwise. Id. at 1393. In the alternative, a contract with an unreasonable allocation of the risks will still be fair if there is minimal surprise or inequality of bargaining power. A & M Produce Co., 135 Cal.App.3d at 487. In A & M Produce Co., the warranty disclaimer was unreasonable because defendant FMC was making no guarantee at all about the performance of the product, even though performance forms the basis of a sales contract; the court also considered the surprise involved and the presence of a large discrepancy in bargaining power as well. Id. at 491. As mentioned before, the shock-the-conscience standard is preferable because the reasonableness standard is more subjective. American Software, Inc., 46 Cal.App.4th at1391. Like American Software, Inc., even if the reasonable standard is used, Ms. Chang would have no incentive to stay if the contract did not contain an exclusivity clause. The network would face an excessive burden of spending so much money promoting their contestants without being able to make a sufficient return. While the exclusivity agreement here was for six years, it is not shockingly higher than the industry norm of three years. Due to changing trends in cable television, network contestants today are able to get excellent public exposure. Thus, unlike A & M Produce Co, the Plaintiffs made sufficient guarantees that their product, the show, would at least give Ms. Chang the opportunity to achieve her dream. Additionally, even if the Plaintiffs have a six year exclusivity contract with unknown contestants, the industry norm of three years remains largely unaffected. For example, in the industry, well-established chefs are not required to sign any exclusivity agreement at all. When

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the industry-norm for well-establish chefs is averaged with the six years that Ms. Chang voluntarily signed up for, the result is still the industry norm of three years. Furthermore, as mentioned earlier, before finding a contract unconscionable, the court shall first afford the parties a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect. Cal. Civ. 1670.5 (West 2010). The contract has a commercial purpose of economic efficiency in preventing contestants from coming and going on the network as they please. Like American Software, Inc, the entire industry incorporates the clause, not just the Plaintiffs. The exclusivity clause cannot shock the conscience when the entire network industry has the same provision.
3.

The circumstances are justified and the allocation of risks is not onesided because the plaintiffs just wanted to make a sufficient return on their investments.

In addition to the previous standard, the claimant has to prove the circumstances were unjustified and the risk allocation was one-sided. Sometimes terms may appear burdensome on their face. However, they may still be justified depending on the industry and after taking all circumstances into account. The allocation of risks was not one-sided. The Plaintiffs took on the responsibilities of managing the show and Ms. Chang was compensated with the opportunity to promote her career. If a contract has an express restriction, the claimant has the formidable burden of proving the term is unfair. Ilkhchooyi v. Best, 37 Cal.App.4th 395, 409 (1995). In Ilkhchooyi, the profitshifting clause in the landlord-tenant contract was unfair only because the commercial landlord was blatantly taking advantage of the tenant. Id. at 1393. The court did not want commercial landlords to be able to unreasonably restrain tenants. Id.

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To establish such a high burden of unfairness, the claimant has to prove the allocation of risks was one-sided and not justified by the circumstances in which the contract was made. Spinello v. Amblin Entertainment, 29 Cal. App.4th 1390, 1396 (1994). In Spinello, the arbitration clause was considered fair because, under the circumstances, it protected the production company from risks, such as copyright infringement claims. Id. at 1399. The court recognized that production companies should be protected when scriptwriters, such as the plaintiff in that case, allegedly try to benefit from similar projects developed by them. Id. To demonstrate an unfair allocation of risks, claimants must prove they were subjected to unilateral terms, binding only them and greatly favoring the drafters. Higgins v. Superior Court, 140 Cal.App.4th 1238, 1254 (2006). In Higgins, an arbitration clause was found substantively unconscionable because the network show contestants were subject to obviously unilateral terms; for example, the contract only entitled the drafting party to appellate review. Id. Like Spinello, the plaintiffs network company should be protected from rival competitors, who might try to benefit from projects developed by the Plaintiffs and steal competitors like Ms. Chang. The Plaintiffs take a huge risk by producing shows. If they fail, they bear the entire loss while the competitors are unaffected monetarily. If the contestants were not bound for a certain period of time, the network would not be able to benefit from their investment. Furthermore, unlike Ilkhchooyi, the clause did not blatantly restrict Ms. Chang. The exclusivity clause only required that Ms. Chang not participate with other competitors. Otherwise, she was free to do whatever she wanted. Additionally, Ms. Chang was given an opportunity to promote herself. She was able to use her success on the show to start her own restaurant and food truck.

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Ms. Chang cannot meet the sliding scale burden of showing both procedural and substantive unconscionability because of the inherent fairness of the contractual terms. Contracts will not be completely equal. Many drafting parties hire contract lawyers solely for fair and minimal legal advantages. The sanctity of contracting and the ability of contract lawyers to succeed would be negatively affected if the contract is declared unconscionable. Thus, the Court should not grant summary judgment for the Defendant, especially when she has to wait only a few months longer. If summary judgment is granted, many contestants with only a few months left on their contracts will be encouraged to sue.

III.CONCLUSION
The Plaintiffs respectfully request the Court to deny Defendants motion for summary judgment. The contract was fairly negotiated, and the terms themselves were fairly determined according to industry customs and trends of cable television. Furthermore, the Plaintiffs took significant financial burdens in exchange for the exclusivity agreement. The Plaintiffs should be compensated for their efforts in creating a rare opportunity for Ms. Chang and other contestants. If the exclusivity agreement is deemed to be unconscionable, the Plaintiffs may be excessively burdened and have to leave the industry. Such a result could be harmful for the economic efficiency of the entire industry and for future contestants thirsting for such rare opportunities that the Plaintiffs provide.

Dated: March 27, 2011

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By_____________Tilak Gupta___________ NAME Attorney for Plaintiffs SAVORY PRODUCTION CO. AND GET REAL NETWORK

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