A couple years ago, I read a story about a Washington wedding photographer that was threatened with a $300,000 lawsuit by an ex-client. The story then seemed to drop out of sight. Sometime thereafter, I decided to put on my investigative reporter mustache and do some sleuthing. Was the threat real? Did a lawsuit actually get filed? If so, what was the result?
THE CONTRACT AND AFTERMATH
Karen Poon and her Dude hired Dream Production Studio to photograph their Vegas wedding in the Fall of 2011. Nelson Tang is the principal of Dream Production Studio, located in King County, WA, and operates his business as a sole proprietorship.
The parties agreed on a price of $3,800.00 for professional photography services covering the ceremony, reception, and some unspecified “pre-wedding” events. Guess what? There was no written contract. Needle skip! Tang needs to read this blog. But, let’s not hammer Tang too hard. He’s going to end up paying for it later on.
The wedding came and went. Sometime later, Tang delivered the images to the newlyweds. Not several hundred edited images that are typical for wedding photography agreements, but ALL OF THE RAW IMAGES. The good. The bad. The ‘I’m not a machine, they can’t all be winners.’
Putting it mildly, and I mean like Taco Bell Mild Sauce ‘mild,’ like Minneapolis summer ‘mild,’ Poon and Dude were dissatisfied with Tang’s work. Flipping through thousands of images, the newlyweds were taken aback that several were out of focus or blurry, didn’t capture the ‘mood’ of that particular moment, or, even more egregiously, “didn’t capture the bar or buffet.”
I mean, what could be worse than failing to adequately document, through professional photography, a chronology of Swedish Meatball consumption? Every photographer worth his or her salt knows how to make that sterno under the garlic-mashed potatoes really stand out. For Poon and Dude, the only evidence of their wedding buffet will be the stories that get passed on from one generation to the next.
“Grandpa, tell me about the ‘Legend of the Buffett’ again!”
“It was unlike anything you have ever seen, Timmy. There was shrimp cocktail as far as the eye could see…..”
By the accounts of Gary Fong and Robert Evans, nationally recognized photographers who later viewed the images, there was absolutely nothing wrong with the quality. In fact, Evans offered to travel on his own dime to testify as an expert witness in Tang’s behalf.
Still, Tang attempted to work with the newlyweds to remedy their issues with the “woefully inadequate” pictures. He retouched and enlarged several at his own expense. He even offered a partial refund for their trouble.
No dice. Poon and Dude considered Tang’s attempts at mitigation “weak and inadequate.” Strangely, several of the images allegedly appeared on Poon and Dude’s Facebook Pages, where they were “liked” by friends and family. Some commenters even requested the name of the photographer so that they could hire Tang for their own events!
THE DEMAND LETTER
So what happened next? Cue the lawyers. Oh wait. Did I mention that Dude is a lawyer? I didn’t? Well, he is. And what do lawyers do? They write letters like this.
On December 26th, 2011, Dude, using the letterhead of his law firm, sent Tang a ‘demand’ letter.
Here are some of the highlights (anything in all caps is his, not mine):
“YOUR ENTIRE LIVELIHOOD IS ON THE LINE”
“We are demanding $3800 plus $15,000…here’s what will happen if you do not pay. Your reputation will be ruined, your livelihood destroyed, your life will be miserable defending a huge lawsuit, and you will be in financial ruin. I know you English is not so good, so you may need everything spelled out for you.”
“I will hire a person who specializes in Search Engine Optimization. I will post all of our photos up and blog about this extensively. Be guaranteed that anyone who searches for ‘Nelson Tang’ will find my web page and what a disaster our wedding photos were.”
“I WILL SUE YOU UNTIL JURY VERDICT”
“I am a partner at this firm; that means I have- ZERO – out of pocket expenses for suing you. It costs me NOTHING.”
“I guarantee you, by the time this gets to a jury, it will cost at least $50,000 in lawyers’ fees. YOU WILL NOT GET THESE FEES BACK, EVER.”
“I will get my judgment of $300,000. I will file a Writ of Garnishment with all your employers and banks, place a lien on your houses, subpoena you to court for supplementary proceedings to find out what assets you have, and pursue this matter until all $300,000 is paid in full.”
Yowsa! Like one night in Bangkok, that’s enough to make a tough guy tumble!
Tang did not respond by the demand’s deadline of December 31st, 2011 (5 days later). I can understand. That’s a lot of scratch in a short amount of time, and the plot line to several movies (e.g. Friday). “And you know this, man!”
So, on January 23rd, 2012, Tang was served with this lawsuit. True to his word, Dude alleged that Tang committed the following:
Negligence: Tang failed to use reasonable care “in the selection of equipment and camera settings.”
Negligent Misrepresentation: Tang made false representations regarding Tang’s “work product.”
Negligent/Intentional Failure to Disclose: Upon discovering the “defects” in the images, Tang failed to immediately disclose the same to Poon and Dude.
Breach of Express Warranty: Tang warranted the quality of his work and failed to provide equivalent work.
Breach of Implied Warranty of Good and Workmanlike Services: Tang failed to “perform in a good and workmanlike manner.”
Kitchen Sink: Just kidding!
The complaint names both Tang and his wife as defendants. In Washington, a community property state, if the principal of a sole proprietorship is named in a lawsuit, then the principal’s spouse may also be named. That way, in case of judgment, the award may be recovered from the marital couple.
Did the Lawsuit Have Merit?
Even if Tang’s pictures were “woefully inadequate,” does this complaint support a jury verdict of $300,000? Probably not.
Generally, the law of tort (negligence, infliction of emotional distress, etc) does not mix with the law of contract. To put it simply, there’s no crying in contracts. If you promise to buy my truck for $1000, and I either don’t deliver the truck, or the truck is actually a terd, the Court is probably not going to award you damages for distress. The Court will not consider that I was ‘negligent’ or ‘reckless.’ Those types of claims lay outside the world of contract. In our truck scenario, the Court is going to award you damages that will place you in the position you would have been had I gone through with the sell. Regular readers of this blog know that such damages are called expectation damages.
Only in rare instances will the Court allow torts and contracts to merge. In those instances, the conduct of the defendant is very egregious, and the damages to the plaintiff are supported by fact.
Here’s a case talking about not mixing your claims:
“Washington case law has recognized that a breach of contract may also lead to a related tort claim, we have yet to erase the traditional distinction between tort and contract damages in order to award damages for emotional distress on an ordinary breach of contract action. The more appropriate inquiry when determining if tort remedies are recoverable when a contractual relationship also exists is whether an independent legal duty exists, outside the parties’ contractual relationship, imposing a duty on the tortfeasor. An injury is remediable in tort if it traces back to the breach of a tort duty arising independently of the terms of the contract.” Hendrickson v. Tender Care Animal Hosp. Corp., 176 Wn. App. 757, 770 (Wash. Ct. App. 2013).
This means that, almost certainly, the entirety of this lawsuit would be scrapped except for the misrepresentation claim (it’s independent, like Destiny’s Child), and possibly the warranty claims.
In essence, this is a breach of contract claim in which the plaintiff is trying desperately to get tort damages (emotional distress, pain and suffering, etc). Nice try, but the award is going to be reduced down to expectation damages. Those damages, if proven, would be approximately the contract value, less the value of what Poon and Dude received (X), plus the out-of-pocket paid for reasonable retouches to the photos to make them conform to industry standards (Y). In mathy-math, it would look like this: $3,800 – X + Y = Verdict.
What are the chances of the verdict being $300,000? About the same is me having a 32 inch waist or running the triathlon that I’m always talking about. That is, slim to none. And slim just ate a Number 22 Combo Meal at Taco Bell. Keen observers note that there is no Number 22 Combo Meal at Taco Bell. They’re right. Slim ordered two Number 11s. That’s 6 Nacho Cheese Doritos Locos Tacos Supremes.
THEN WHAT HAPPENED?
Well, all this is easy for me to say while I sit in front of my computer in Atlanta, GA wiping cheez-it crumbs from my shirt. What did Tang do? Well, nothing for a while. Then he reached out to Gary Fong, who immediately rallied support for Tang in the international photography community. The Tang Legal Defense Fund allowed Tang to retain Sunny Awla as legal counsel. Way to go Gary Fong!
Sunny did a fantastic job defending Tang. After several months of back and forth, the parties agreed to mediation. Two days before mediation, Poon and Dude withdrew the lawsuit. Happy endings!
Sunny’s take on the case? It was a no-brainer: “We had a very strong defense. We of course had Gary Fong who was willing to testify on his behalf. One of the experts we had was Robert Evans, who was the photographer for Brad Pitt and Tom Cruise’s weddings. Evans looked at the photographs and thought that Plaintiffs’ damages were preposterous and absolutely frivolous.”
According to Sunny, aside from having the contract in writing, Tang could have avoided this situation by not providing all the images. “During the course of the wedding, they may take over 3000 to 4000 pictures but they usually provide between 700-900 pictures to the clients. By doing this the photographer ensures that the clients only get to see the best work.” Good advice, Sunny!
Everyone give Sunny a big round of applause.
Gary filed a grievance against Dude with the Washington State Bar Association Office of Disciplinary Counsel. You can read that here. To date, and according to the WSBA website, Dude has not been disciplined for the content of the demand letter. However, the internet has disciplined him a-plenty.
WHAT’S THE MORAL OF THE STORY?
I think that there are three things to take away from our tale.
First, wedding professionals need to have a written contract drafted by an attorney, or at least a template that they have purchased that was at one time drafted by an attorney. I mean, that’s just a point-blank, non-negotiable, business necessity. A good wedding photography contract in this case could have done hundreds of things to mitigate the damages. For example, clauses limiting liability of the photographer, setting artistic discretion, outlining photo ownership and image delivery, and others, could have stopped this ex-client from emerging from the ocean and destroying Tokyo.
Second, as Sunny mentioned, wedding photographers should rethink providing all captured images to a client. Clients, for the most part, have a hard time understanding that not all images are going to be 100%. For every great picture a client sees, there might be 5 they hate, and will assume that they must have missed an important moment. I’ve received several inquires over the past couple years from photographers stating that clients have posted otherwise unusable or throwaway shots online as an example of the photographer’s work. Bummer!
Third, there are always going to be people that will attempt to run you over for a refund. They will scream. They will threaten lawsuits. They may even file lawsuits. Nothing can stop that (besides a good contract- just kidding!). You can only try, through business savvy, luck, and efficient intake procedures, to limit your dealings with bad clients. But take heart. The law is intuitive (most of the time). If the client is crazy, and the evidence supports that you did a good job, then chances are, an outrageous claim will be tossed. In other words, don’t lose too much sleep over a $300,000 demand letter.
ONE FINAL POINT.
The styling of this case was Poon vs. Tang, which is the greatest case name in the history of the World. At least, since the 1890 case of Honey vs. Pot.