Levin v. Posen Foundation

          AMENDED OPINION AND ORDER

          Joan H. Lefkow U.S. District Judge.

         Neil W. Levin, a distinguished scholar of Jewish music, sued Felix Posen and the Posen Foundation, a family foundation of which Felix Posen is president, asserting several claims arising from an aborted collaboration with the Posen Foundation on the creation of an anthology of Jewish music for the Posen Library of Jewish Culture and Civilization (the Posen Library). After more than five years of litigation, during which some claims and one defendant were dismissed and fruitless settlement attempts were made, the case is before the court on defendants' motion for summary judgment on Levin's surviving claims for fraud and breach of implied contract against Posen and the Posen Foundation.^[1]

         For the reasons stated in this Opinion, the motion is denied with respect to the implied contract claim and granted with respect to the fraud claim.

         BACKGROUND^[2]

         Neil Levin was and is the artistic director and editor-in-chief of The Milken Archive of Jewish Music sponsored and supported by the Milken Family Foundation. In the past Levin was a full-time professor of music at the Jewish Theological Seminary and has been professor emeritus since approximately 2011. See http://www.milkenarchive.org/artists/view/neil-levin.

         The Posen Foundation is a Swiss equivalent of a U.S. not-for-profit. The Foundation was established in 2004 by Felix Posen, who at all relevant times served as its president. It is funded by Posen and his family. Its mission is to work internationally to advance Jewish education and promote Jewish culture in the public sphere. It awards fellowships, hosts public events, and supports Jewish scholarship in the area of modern Jewish history and culture.

         A project of The Posen Foundation, begun about 2004, is publication of the first ten volumes of the Posen Library. The Posen Library was described by the Foundation on its website in 2008 (a copy was provided to Levin) as follows:

A project of enormous scope and importance, the Posen Library of Jewish Culture and Civilization is an anthology of important literary works produced primarily by Jews from the Biblical period through the end of 2002. Under the guidance of Editor-in-Chief James E. Young, 120 internationally recognized scholars are contributing to this project, which will include primary sources, documents, texts, and visual images. Published by Yale University Press, the first volume of The Posen Library will be completed in 2009; an additional 11 volumes will be published by 2013.^[3]

         James Young, a professor at University of Massachusetts - Amherst and the first editor-in-chief of the Posen Library, held that position at all relevant times. As of 2008 he was receiving $18, 000 per year to serve as editor-in-chief.

         In or about 2008, the Posen defendants were exploring ways to secure rights to recorded music for use within, inter alia, Volume 10 of the Posen Library by exploring a collaboration with the Milken Foundation. (Young in an email to Joyce Rappaport, executive editor of the Posen Library, also expressed interest in providing links to works already on line, such as through the Milken Archive or the University of Pennsylvania's archive.)

         On October 27, 2008, Rappaport sent an email to Paul Schwendener, chief operating officer of the Milken Archive, to inquire about the possibility of working with the Milken Archive. Rappaport explained,

Each volume [of the Posen Library] will be accompanied by CDs, DVD's, or Web-based links that will include examples of music, art, film and dance. As our volume editors have gathered their potential music selections for the contemporary period, they have discovered that the Milken archive has probably preserved many of the items that they hope to use. In addition, it has been suggested that Milken may be organizing future projects that might also be available for us as well.

         Schwendener forwarded the email from Rappaport, together with information gathered about the Posen Foundation and Posen Library, to Levin, who joined Schwendener at a meeting with Rappaport, and a Posen Library consultant on November 11, 2008. Following that meeting, Rappaport sent the following email message to, among others, Young and Posen:

Dear Felix, James, and Jonathan,

Yesterday afternoon, Roberta Newman [the consultant] and I met with representatives of the Milken music archive. We talked for quite a while with Paul Schwendener, the Chief Operative Officer, and Neil Levin, the Artistic Director. They are quite enthusiastic about the possibilities of sharing their resources with the Posen Foundation.

The archives has a vast number of recordings, many of which they have made themselves. Those, in particular, might be open to an arrangement with us. Other items in their archives would, we think, still require permissions from the companies that produced them or the composers or estates.

I think this is worth pursuing. We do have some questions, though, about their involvement (particularly of Prof. Levin, who teaches at the Jewish Theological Seminary and who, I suspect, wants some role in writing or annotating). I also think that they would be a more effective resource--and probably an excellent one--for the earlier volumes. Was Levin ever considered as an adviser to the project? We could find out more about him from David Roskies, his colleague.

Neil Levin is going to be in London from November 21 through November 28 and would like to talk to the Posen Foundation. As I said, this may be worth the conversation. . . .

A Posen Library Progress Report dated November 24, 2008, includes the following:

[W]e have to face the fact that the music alone for Volume 10 will cost anywhere from $20, 000-$30, 000 for just two-CD set. …[T]he issue of music and film rights led us to meet with representatives of the Milken Archive of American Jewish Music. … They are interested in discussing some sort of cooperation with the Posen project, not just for American music.^[4]

         Posen met with Levin in London on November 25, 2008. Levin advised Posen that the list of musical selections for Volume 10 “had numerous faults” and “contained numerous mistakes, mis-information, vulgar racial slurs and other tasteless, offensive and irrelevant material.” Levin asserts that Posen engaged him at this meeting to perform certain studies and other work for the Posen Library, although his testimony was somewhat different. He stated that the meeting was “to get to know each other and for [Levin] to show his expertise … [for] Volume 10.” Levin did not recall any compensation being discussed in that first meeting. At that meeting and thereafter, Posen instructed Levin to meet with Young and Rappaport.

         Levin testified that he and Posen discussed his compensation and that Levin expressed his expectation to be compensated on a pro rata basis based on his $300, 000 salary, which came to $400 per hour. Levin left the November 25, 2008 meeting in London with the understanding that Posen had agreed to pay him at the rate of $400 per hour for approximately 16-18 hours per week of work for the Posen Foundation. Levin does not claim, however, that Posen explicitly promised $400 per hour.^[5]

         Following the meeting, Posen sent an email to those working on the Posen Library, including Young, in which he noted, "[Levin] is a very learned and knowledgeable gentleman." Posen expressed his concern about whether there would be a “practical solution as to how we might cooperate." He pointed out that the Milken Archive had perhaps more than 100 works written by composers over the past 100 years with which the Archive could possibly create its own anthology of Jewish music:

The question we are going to have to struggle with is in what form do we wish to try and include music as part of our anthology ie just take some representatives pieces of music in each of say the 1st four volumes or merely refer to it in writing and leaving it to an outfit like Milken to possible create a full anthology of Jewish Music on their own.

         He recommended that the general editors and the volume editors should be involved in a “conversation about what to do about this issue.”

         On February 4, 2009, Levin met in New York with Young, Rappaport and Jonathan Brent, then the editorial director of the Yale University Press, the contracted publisher of the Posen Library. Levin testified that he reported the initial research on his feasibility study and CD evaluation at this meeting. (Defendants dispute this testimony and rely on a February 15, 2009, email that Young sent Levin (and others) to memorialize what was discussed at the meeting. Quoting the February 15, 2009 email, Young stated,

I would like to invite you, Neil, to join my own Editorial Advisory Board of Experts. … We are paying [the] Advisory Board members an honorarium of $3, 000 for their assistance. Assistance in your case, Neil, would be to read the lists of music as they come in and to advise me of the lacunae, omissions, and suggestions for improvement. We've asked all vetting come to me and Joyce [Rappaport], so that I can assemble all suggestions and make them to the Volume Editors on behalf of my entire Editorial Board. This also lets you be as frank and open as you need to be, without fear of offending Volume Editors or personalizing suggestions.

* * *

We agree that there may be a need for an “11th Volume” of Music for the Posen Library . . . .

         Young forwarded to Levin the Posen Library's “Project Guidelines for Volume Editors, ” although Levin testified that he had no recollection of receiving them. The Guidelines reflect that each volume was limited to 1, 000 printed pages and that volume editors would “have to exercise their judgment in determining the total number of entries, deciding how long selections will be in the hard copy, and which might be included in the accompanying CD.” The Guidelines state that volume editors would receive a stipend of $25, 000 (in three installments) for their work on a single volume.

         Levin met again with representatives of the Posen Library, including Young, on or about May 20, 2009 in New Haven. In an email dated May 24, 2009, from Young to, among others, Levin, Young wrote, “I think we've hammered out both a consulting and a collaboration agreement with Neil ….” Further, he wrote,

… We welcome Neil to our Editorial Advisory Board of Experts as its musicologist, for which we will pay him a consulting fee consistent with his contribution to the project. …[Levin's] "most immediate job will be to vet and refine the final list of music related entries for Volume X.” Levin also would suggest a list of essays “and the appropriate 1, 000-word extracts for the printed version of Volume X” and work on a collaboration with the Milken Archive and Yale University Press which could, if successful, result in a “stand-alone anthology of World Jewish Music.…

         Although Young's email did not include the understandings Levin believes were reached at the meeting, Levin testified that at this meeting he “shared the results of his feasibility study and CD evaluation” and that he was also assigned the role of music editor with sole authority over all music-related content in the entire Posen Library.^[6] Young and Posen testified that the volume editors had “the final call” on what was included in the final publication.

         In a May 24, 2009 email Young summarized the understandings reached at the same meeting, including that Levin would join their editorial advisory board and would be paid a “consulting fee consistent with his contribution to the project.”

         In response to Young's May 24, 2009 email, Posen inquired if "anything [was] discussed about finance at all?" (Fischman Decl. Exhibit 16) Young responded,

In general terms, we agreed that Neil would be paid an Editorial Board Consulting fee, as we've done for other experts. There has been a $3, 000 fee for close vetting in particular areas like art or music. In Neil's and Edwin Seroussi's case, however, they may demand (and deserve) more. He's basically going to re-make the list of music and essays on music for Volume X, in collaboration with Seroussi (a Hebrew University musicologist and specialist in Israeli and Mizrahi music).^[7]

By email dated May 27, 2009, Levin wrote to Posen the following:

I had a very good and, I think, fruitful meeting last week [May 20] in New Haven. … I do believe now that we all understand what has to be done on several levels - with regard both to the substantive content matters vis-à-vis music-related writings as well as ...