Kendall Jenner, Society Model Management and Elite World want the $1.8million contract case filed against them over an ad campaign gone wrong thrown out in court, with the modeling agency and its parent company squabbling in a memo recently filed in support of their motion to dismiss that the lawsuit Liu Jo SPA filed this summer in federal court in New York is nothing more than a “baseless” attempt by the trademark to Italian fashion to “avoid its contractual obligations after having unilaterally terminated a negotiated agreement [with Jenner] in direct violation of the express terms of this agreement”.
In the Motion to Dismiss and corresponding Memorandum of Support they filed on September 17, Society Model Management and Elite World (the “Defendants”) argue that the case – which stems from a settlement Kendall Jenner made in July 2019 with Liu Jo to appear in its Spring/Summer 2020 and Fall/Winter 2020 print advertising campaigns – must be rejected in its entirety. Setting the stage in their filing, Society and Elite claim that it is in fact the brand that is wrong in the deal because “in light of the rapidly developing emergency [COVID-19] situation in Italy, Liu Jo asked for a long postponement of the second shoot “to March 2020, which Jenner agreed to” even though it meant that Liu Jo’s use of her name, image and likeness would be extended, thus forcing [her] to pass on other valuable opportunities.
Shortly after, the agencies claim that “Liu Jo unreasonably tried to pressure Ms. Jenner to show up for an in-person shoot in Europe as Italy’s COVID-19 numbers skyrocketed at the time. amid the turmoil of the global pandemic.” Jenner “continued to try to work with Liu Jo to reschedule the second shoot subject to her availability and with appropriate security considerations,” but agency defendants claim the brand “attempted a bait and a change… to force an outcome that was ruled out by the term sheet ‘trying’ to completely cancel the second shoot and contract by informing Ms Jenner that they had changed their marketing strategy and requested that Ms Jenner appear at the place in a different campaign for another fashion brand.
“But a mannequin is not a fungible commodity that can be traded between fashion brands without its consent,” the defendants claim, claiming that Liu Jo ultimately “aimed to unilaterally void the agreement in direct violation of its clear terms.” , which prohibited the cancellation of the agreement. agreement by Liu Jo,” then sued Ms. Jenner and Kendall Jenner, Inc. for alleged breach of contract that Liu Jo himself had postponed, disavowed and cancelled.
Failure to Report Claims
Seeking to have the case thrown out of court, the defendants claim that Liu Jo is misrepresenting the claims against them in connection with the breach of the deal with Jenner. The attorney for the two modeling agency defendants argues that Liu Jo is asserting three claims against them — breach of contract, breach of good faith and fair use, and unjust enrichment — but all three claims fail for “many reasons”. Primarily, they claim that in “the complaint, [Liu Jo] does not even allege that Elite or the company has engaged in any wrongdoing”, and instead, “claims only that it was Ms. Jenner who “continually failed to meet her obligations”, who “continually acted in bad faith and who “was unjustly enriched”. .’” Second, Elite and Society argue that the complaint alleges that they “acted merely as agents of Kendall Jenner,” which is a problem since “it is well-established New York law that a disclosed agent is not liable for its principal’s breaches of the contract or of the implied undertaking of good faith and loyalty”.
And finally, the agency’s defendants claim that the complaint “does not allege that [they were] unjustly enriched at all, must less unjustly enriched by Liu Jo”, and therefore, the complaint should be dismissed.
Specifically, the defendants claim that Liu Jo fails from the outset to plead that they engaged in a breach of contract or constructive duty, as the complaint ‘only pleads that’Ms Jenner consistently failed in its obligations under the agreement” (emphasis added), that “Ms Jenner has not fulfilled his obligation to participate in the second photo session’ and that ‘Ms Jenner continually acted in bad faith.
“There is not a single allegation in the complaint of breach of agreement or obligation owed to Liu Jo by Company or Elite“, argues the agencies’ lawyer, stating that “this is fatal to the claims”. At the same time, the agencies argue that Liu Jo failed to establish that they had indeed maintained a contract with Liu Jo, because the contract in question, “on its own terms, as the complaint admits, is only between the brand and Kendall Jenner, Inc.” (According to Elite and Society, “The only allegation regarding Elite and Society admits that ‘Ms. Ayisha Morgan of Elite World Group signed the agreement as an authorized representative of The Society and Ms. Jenner’, and that is insufficient, claim they, to bind them to Liu Jo on a contractual basis.)
The existence of a contract between them and Liu Jo is “an underlying element of both a breach of contract and a breach of implied covenant”, the agencies claim.
Regarding Liu Jo’s unjust enrichment claim against them, the agencies argue that the brand is failing on this front as well, as “Liu Jo doesn’t even try to assert that the elite or society has been unfairly enriched”, and instead, alleges that “Jenner – not Elite or Society – “received money”, “refused to provide agreed-upon services”, and “unjustly enriched herself”. Jenner, not the brand.
As such, Elite and Society argue that the court should issue an order dismissing Li Jo’s complaint in its entirety and with prejudice to prevent her from filing a similar complaint against them in the future.
Broken contract and bad faith
The case began in early August when Liu Jo filed a lawsuit, accusing Jenner and agency defendants of “breaching an agreement to provide modeling services to Liu Jo.” According to the complaint, the plaintiff claimed to have entered into a contract with Jenner, 25, during the summer of 2019 for the model to participate in two photo shoots for the brand, among other obligations, such as “to perform[ing] certain social media activities and behaviors[ing] interviews,” in exchange for $1.5 million plus a 20% service fee.
After signing the deal in July 2019, and hot on the heels of Liu Jo “quickly [making] all payments required as scheduled in anticipation of Ms. Jenner’s performance, totaling $1,350,000 to date,” the plaintiff claims that Jenner traveled to Europe to shoot the Spring/Summer 2020 campaign, “fulfilling thus her obligations for one of the two photo shoot agreements,” which the brand said was just “one of many obligations she had to fulfill under the agreement.”
Things began to deteriorate after the first photo shoot ended, Liu Jo alleges in the complaint, and that second shoot never materialized after Jenner allegedly “did not provide Liu Jo with definitive answers to [its] proposals” as to alternative dates and locations for the second shoot. More than that, Liu Jo claims that Jenner “later reneged on the agreed upon deal [rescheduling] date “for October 2020, and argued that she had not violated the agreement by doing so, because” it was “impossible” for [her] traveling to Italy in the fall of 2020. The problem with that claim, according to Liu Jo, is that Jenner had traveled to Italy for a Versace photo shoot a month prior “during the same period that the parties were considering for the second [Liu Jo] photo shoot to happen.
Doubling down on his claims that Jenner acted in bad faith, Liu Jo claims that while Jenner “also claimed she was unable to travel to Italy due to her health issues related to the coronavirus pandemic” , the model was “at the same time … repeatedly reported as violating CDC guidelines by indulging in multiple non-essential international travel and hosting large parties with her friends.
“In sum,” Liu Jo argues, “Ms. Jenner made no good faith effort to reschedule the second photoshoot or fulfill her obligations detailed in the agreement, despite Liu Jo’s flexibility and multiple alternatives offered, and although Liu Jo paid Ms. Jenner for the services she refused to perform Due to Jenner’s “refusal to negotiate in good faith”, Liu Jo alleges that he was “forced to find replacement models and restructure her entire Spring/Summer 2021 shoot – at great expense.”
In view of the above and in light of Jenner’s “dilatory and bad faith actions”, Liu Jo claims that she “was forced to bring this lawsuit” and seeks damages “from a amount to be proven at trial, but not less than $1.8 million plus interest, plus attorneys’ fees and court costs, and any additional damages and other relief the court deems appropriate.
The case is Liu Jo, SPA v. Kendall Jenner, and. al., 1:21-cv-06543 (SDNY).