Kendall Jenner, Society Model Management and Elite World want the $1.8 million contract case filed against them over an ad campaign gone wrong tossed out of court, with the model’s agency and its parent company arguing in a newly-filed memo in support of their motion to dismiss that the lawsuit that Liu Jo S.P.A. filed in a New York federal court this summer is little more than a “meritless” attempt by the Italian fashion brand to “avoid its contractual obligations after unilaterally terminating a bargained-for agreement [with Jenner] in direct contravention of the explicit terms of that agreement.”
In the motion to dismiss and corresponding support memo that they filed on September 17, Society Model Management and Elite World (the “defendants”) argue that the case – which stems from a deal that Kendall Jenner entered into in July 2019 with Liu Jo to appear in its Spring/Summer 2020 and Fall/Winter 2020 print advertising campaigns – should be dismissed in its entirety. Setting the stage in their filing, Society and Elite argue that it was actually the brand that is in the wrong in connection with the deal, as “in light of the rapidly developing emergency [COVID-19] situation in Italy, Liu Jo requested a lengthy postponement of the second shoot” in March of 2020, which Jenner agreed to “even though this meant the usage of her name, image and likeness by Liu Jo would be extended, thereby forcing [her] to pass on other valuable opportunities.”
Shortly thereafter, the agencies argue that “Liu Jo unreasonably tried to pressure Ms. Jenner into appearing for an in-person shoot in Europe as Italy’s COVID-19 numbers were spiking in the midst of 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 safety considerations in mind,” but the agency defendants claim that the brand “attempted a bait and switch … to force a result that was precluded by the term sheet” by trying to “cancel the second shoot and the contract altogether by informing Ms. Jenner that they had changed their marketing strategy and requested that Ms. Jenner instead appear in a different campaign for a different fashion brand.”
“But a model is not a fungible commodity to be traded among fashion brands without her consent,” the defendants argue, claiming that Liu Jo ultimately “purported to unilaterally cancel the agreement in direct contravention of its clear terms,” which barred cancellation of the deal by Liu Jo, “and then sued Ms. Jenner and Kendall Jenner, Inc. for purported breach of a contract that Liu Jo itself had postponed, disavowed and cancelled.”
Failure to State Claims
In seeking to get the case tossed out of court, the defendants assert that Liu Jo fails to properly state claims against them in connection with the breakdown of the deal with Jenner. Counsel for the two modeling agency defendants argues that Liu Jo asserts three claims against them – breach of contract, breach of good faith and fair dealing, and unjust enrichment – but all three claims fail for “several reasons.” Primarily, they assert that in “the complaint, [Liu Jo] does not even allege that Elite or Society engaged in any wrongdoing,” and instead, “claims only that it was Ms. Jenner who ‘continually breached her obligations,’ who ‘continually acted in bad faith,’ and who ‘has been unjustly enriched.’” Second, Elite and Society argue that the complaint alleges that they “acted merely as agents for Kendall Jenner,” which is an issue since “it is well-settled New York law that a disclosed agent is not liable for its principal’s breaches of contract or of the implied covenant of good faith and fair dealing.”
And finally, the agency defendants claim that the complaint “fails to allege that [they were] unjustly enriched at all, must less unjustly enriched by Liu Jo,” and thus, the complaint should be dismissed.
Specifically, the defendants claim that Liu Jo fails from the outset to plead that they engaged in any breach of either the contract or an implied duty, as the complaint “pleads only that ‘Ms. Jenner has continually breached her obligations under the Agreement’ (emphasis added), that ‘Ms. Jenner has failed to satisfy her obligation to participate in the second photoshoot’ and that ‘Ms. Jenner has continually acted in bad faith.’”
“There is not a single allegation in the complaint of any breach of an agreement with or obligation owed to Liu Jo by Society or Elite,” the agencies’ counsel argues, stating that “this is fatal to the claims.” At the same time, the agencies argue that Liu Jo has failed to establish that they actually maintained a contract with Liu Jo, as the contract in question, “by its own terms, as the complaint admits, is only between the brand and Kendall Jenner, Inc.” (According to Elite and Society, “The only allegation concerning Elite and Society admits that ‘Ms. Ayisha Morgan of Elite World Group signed the sgreement as an authorized representative of The Society and Ms. Jenner,” and this is insufficient, they argue, to bind them to Liu Jo in a contractual capacity.)
The existence of a contract between them and Liu Jo is “a predicate element of both a breach of contract and breach of the implied covenant claim,” the agencies argue.
As for Liu Jo’s unjust enrichment claim against them, the agencies argue that the brand fails on this front, as well, as “Liu Jo does not even attempt to assert that Elite or Society was unjustly enriched,” and instead, alleges that “Jenner – not Elite or Society – ‘received monies,’ ‘refused to provide the agreed-upon services,’ and ‘has been unjustly enriched.’” And if they were enriched in connection with Jenner’s $1.5 million deal with Liu Jo, the agencies contend that that enrichment came from Jenner, and not from 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 it from filing a similar suit against them in the future.
Breached Contract & Bad Faith
The case got its start in early August when Liu Jo filed suit, accusing Jenner and the agency defendants of “breaching an agreement to provide modeling services to Liu Jo.” According to the complaint, the plaintiff claimed that it entered into a contract with Jenner, 25, during the summer of 2019 for the model to take part in two photoshoots for the brand, among other obligations, such as “perform[ing] certain social media activities and conduct[ing] interviews,” in exchange for $1.5 million plus a 20 percent service fee.
After signing off on the deal in July 2019, and on the heels of Liu Jo “promptly [making] all required payments 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 photoshoot, thereby, “fulfilling her obligations for one of the two agreed-upon photoshoots,” which the brand asserts was just “one of the many obligations she was required to fulfill under the agreement.”
Things started to go downhill after the completion of the first photoshoot, Liu Jo alleges in the complaint, and that second shoot never came into fruition after Jenner allegedly “failed to provide Liu Jo with definitive responses to [its] proposals” as to alternative dates and locations for the second shoot.” More than that, Liu Jo claims that Jenner “then reneged on the agreed-upon [rescheduling] date” for October 2020, and argued that she was not in breach of the agreement in doing so, as “it was ‘impossible’ for [her] to travel to Italy in the Fall of 2020.” The problem with this claim, per Liu Jo, is that that Jenner traveled to Italy for a Versace photo shoot a month prior “during the same time period the parties contemplated for the second [Liu Jo] photoshoot to occur.”
Doubling down on its claims that Jenner acted in bad faith, Liu Jo asserts that while Jenner “also claimed that she was unable to travel to Italy due to her health concerns relating to the Coronavirus pandemic,” the model was “at the same time … repeatedly reported to be violating CDC guidelines by engaging in multiple international non-essential trips and hosting large parties with her friends.”
“In sum,” Liu Jo argues that “Ms. Jenner made no good-faith effort to reschedule the second photoshoot or perform her obligations detailed in the agreement, despite Liu Jo’s flexibility and multiple proposed alternatives, and despite Liu Jo making payment to Ms. Jenner for services she refused to render.” Due to Jenner’s “refusal to negotiate in good faith,” Liu Jo alleges that it was “forced to find replacement models and restructure its entire Spring/Summer 2021 photoshoot – at great expense.”
With the foregoing in mind and in light of Jenner’s “dilatory and bad-faith actions,” Liu Jo asserts that it “has been forced to file this lawsuit,” and is seeking damages “in an amount to be proven at trial, but not less than $1.8 million plus interest, as well as its attorneys’ fees and litigation costs, and any additional damages and such other relief as the court deems appropriate.”
The case is Liu Jo, S.P.A. v. Kendall Jenner, et. al., 1:21-cv-06543 (SDNY).
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