Don’t sign your yoga butt away in that contract.

Let’s talk first.

It isn’t every day my legal and yoga lives collide but lately it’s every damn day, so allow me to stop my rubbernecking the Alo/Cody/Kino/Dana debacle or as I like to call it, “ACK!(d)” (the “d” is silent, given Dana Falsetti is keeping quiet for reason now). Ah yes, you may have heard of the lawsuits filed against 24-year-old yoga teacher Dana Falsetti (known as “Nolatrees” and for her advocacy of larger bodied yogis to her 329K Instagram followers), the legal actions passionately brought to our attention by the formidable Ms. Kino Macgregor via Insta and Elephant Journal, here, here, and here, followed by a response from Paul Javid, Cody CEO, then a mad raging river of a blogger frenzy–even Jezebel took it up. To satisfy my now awakened legal brain, I’m going to (1) give a brief overview of the cases (from what I have seen from the two publicly available court decisions available online in each case), and more helpfully (I hope) (2) suggest a few things to avoid this kind of shitstorm from happening (not as your lawyer, mind you, I’m recovered, I mean, retired).

I. The Scorched Earth Cases

A. The Disappearing Instastory Heard ‘Round The World

Around December 5, 2017 Dana posted one of those disappearing, 24-hour instastories– which you can now view here, in full— prompted by the affiliation of Cody and Alo. The backstory to the Instastory (from the court’s decisions in these very early stages of the cases) is that in late September Cody informs Dana that it was acquired by Alo and tells her that this info is not public; over the next two months, Cody and Alo send emails to Cody’s subscribers that lead Dana’s students to think she’s affiliated with Alo — a company that in their view does not comport with Dana’s advocacy for larger bodied yoga practitioners.

Dana responds with this hammer of an Instastory (which is kinda awesome, I have to say).

B. The statements that got everyone’s panties in a bunch

In a nutshell, Dana is alleged to have posted statements indicating that Alo and Cody were now affiliated (a claimed violation of business confidentiality per their contract) along with some allegedly untrue, damaging things, namely that Alo:

(1) has “sexual harassment/assault allegations against one of the owners (multiple counts).”

(2) is “a brand who lies”

(3) is “a brand that is elitist, a club that only some can be in”

(4) “perpetuates body shame”

C. Two Lawsuits Follow on The Heels on the InstaStory

This disappearing Instastory lives on in two separate lawsuits (one by Cody and the other by Alo) in two different courts.

Cody’s lawsuit: On December 6, one day after the Instastory (little eyebrow raise, there, eh), Cody sues Dana asserting two claims for (1) breach of contract (alleging Dana disclosed non-public information concerning Cody’s acquisition by ALO in her post, in violation of their agreement, and (2) trade libel (for the alleged defamatory statements in the post).

Alo’s lawsuit: Two days post-post, Alo sues Dana in Los Angeles Superior Court asserting a single claim for defamation and trade libel (Dana later removed the case to California federal court). Alo’s lawsuit claims pecuniary damage from false and defamatory items in Dana’s post– that is, her writing that Alo “lies” and that there are “sexual harassment/assault allegations against one of the owners (multiple counts).”

As my Dad would say, Cody and Alo are not happy campers.

Links to the two court decisions I am using in this post:

Cody v. Falsetti, Order Granting Motion to Dismiss Counterclaims; Denying Motion to Strike Affirmative Defenses,  (March 8, 2018, Western District of Washington)

Alo v. Falsetti, et. al (denying Falsetti’s Motion to Transfer Venue) (Central District of California)

 1. Why Isn’t This One Freakin’ Lawsuit?

Good question– and one the court addressed, because Dana made a motion to transfer the Alo (California federal court) case and consolidate it with the related action brought by Cody in Washington. The Alo Court shot it down (I’m just the messenger here, loves!). First, Cody is asserting a claim based on its contract with Dana (that Dana breached it by outing the Cody/Alo deal), and that document contains a forum selection/ choice of law clause specifying Washington. Sleepless in Seattle indeed!

Next, on Dana’s motion in the Alo (California) lawsuit to consolidate and move both cases to Washington cause they both pertain to the Instaslap, the Central District of California acknowledged the two suits are related but found that Dana had failed to meet her burden of showing Washington as the place to be for Alo’s defamation claim. Specifically the Court found (1) no clear basis for finding Alo subject to the forum selection clause in the contract between Cody and Dana, and (2) that Dana had failed to show that a substantial part of the events giving rise to Alo’s defamation and trade libel claim occurred in the Western District of Washington. So Alo’s case remains in sunny California.

The technical term for this is “hot mess.”

2. A few thoughts about the cases:

I’m not a fan of the litigation strategy Alo and Cody seem to be employing– this scorched earth, vengeance shall be mine!- campaign foisted upon a single yoga teacher. Also, if Alo’s problem is that its reputation was damaged by what Dana said, it seems odd to pursue a lawsuit that is only making the company’s reputation suffer more.

I’m in awe of Kino and Dana, but I don’t know that any ending in court is ever a happy one: it’s just an expensive drain on your energy, time, money and soul (for all we know, Dana may have the stronger case on all of these claims in both courts).

Let’s turn to something more productive, shall we?

II. One to Grow On– Keep Your Yoga Butt

A.  Don’t let this Happen to You Because You Don’t Want To Be Taken By The Dark Lord

More interesting to me is the story behind the Instastory, behind Cody and Dana being connected in the first place and how this might help other avoid this kind of litigation soul suckage in the future.

(Litigation soul suckage isn’t a technical term in Black’s law dictionary, but it should be).

On August 1, 2016, Cody and Dana entered into an agreement. That contract — what the court dubbed the “Talent License Rights Agreement” granted to Cody and “its agents, subsidiaries, affiliates, licensees, successors, and assigns, and to other such entities or persons as [Cody] may designate from time to time” the rights to produce, promote, and own video and other content using Ms. Falsetti’s “physical likeness, name, voice, image, performance, persona, and exercise routine,” and the rights to “any marketing collateral associated therewith” (collectively, the “Falsetti Content”) (emphasis added by me).

The agreement granted Cody an irrevocable license to “use and exploit” the Falsetti Content “in whole or in part, either alone or in conjunction or combination with other works . . . for any advertising, marketing, and promotional purposes . . .”  Notwithstanding the foregoing grant of rights to all of her kit and kaboodle, Cody coughed up a little bone and agreed not to use the Falsetti Content “in a manner intended to harm” Ms. Falsetti’s reputation.

(The above is paraphrased, quoting and embellishing from the court’s order in Cody v. Falsetti, available here).

Houston, we have a problem.

That’s right, and you cannot meditate this one away. Sure, there is some rather wordy, list-y, white-noisy legal verbiage about but please, wake up and smell the sage:

This is the legalish equivalent of promising the wicked witch your solar plexus, the first born of your yoga teaching soul. The contract terms there indicate that Dana gave rights to her persona, voice etc. to Cody and thus anyone Cody wants to give it to, the only limitation being that the material (I.e. Dana ‘s f*cking “persona” or the “Falsetti content”) can’t be used in a manner “intended to harm her reputation.”

Are you holding your ujayyi breath? What this means is that Drumpf, Voldemort and Dr. Evil could decide they want to get into the yoga/wellness business, form a little company called “Yogabestiesvillanz” (it’s the best yoga company ever) acquire Cody App, and with it Dana and her body image championing and chair yoga videos and all that. Yogabestiesvillanz believes in super skinny big breasted yoga models, but for the moment it wants to keep Dana’s DNA (I mean, the “Falsetti content”) and her thousands of followers. It might even put some videos together of Dana teaching splicing in some of these models as students in the class.

Given the terms agreed to, they might be able to f*cking do that…. leaving Dana, like it or not, associated with Drumpf and yes,”He-Who-Must-Not-Be-Named.”

Sure, this is a hysterical hypothetical of worst case scenario, catastrophized nightmare of a possibility proportions. You’re welcome.

So–

B: Don’t Sign Your Butt Away — Get a Freaking Lawyer:

The lesson here– and can we please have a lesson so this mess is not in vain — is to take a good look at all the contracts you are signing, from the agreements with studios where you teach, to photo releases at studios where you practice, to the big dawg contracts you enter to make videos of your yoga teaching content available to the world.

How much of yourself are you giving away? You can talk back and say what you want to anyone who hands you sh*t to sign!

Let me be clear: I don’t judge Dana for signing that contract. To the contrary, she did what a lot of us do all the time (even me): She signed a deal. I don’t know how she went about it, but she wouldn’t be alone if she signed it without reading it, without critically reading it, without having a lawyer look at it and without negotiating back her own terms.

Uh, let’s not do that anymore, ok?

Here’s what could have happened: she could have, perhaps with the help of a lawyer, read those terms and negotiated back, that you’ll need my consent to keep this deal going if there is any change in control of Cody. In other words– a way for her to walk herself and all her “content” out the door if she doesn’t like the company swooping in to buy or stepping in to control Cody, or that she feels doesn’t “align with her values.” She also might have asked for a different jurisdiction in the forum section clause, or for variance of the confidentiality clause terms. I fear that we sign “standard” terms drafted by lawyers while we are unrepresented and provide no push back.

Not to beat a dead bug yoga pose, but —

Had that happened, Dana could have simply exited this Cody/Alo affiliation as soon as she got wind of it and taken her content, her solar plexus, her message her voice her image her Dana-Nolatrees teaching essence and walked the flip-dog away.

I’m not defending Alo/Cody’s actions towards Dana; indeed the defamation claims don’t rest on the contract at all (yes, Dana could still get sued for defamation for that post).* And the breach of contract claim (in the Cody case) has only to do with the confidentiality clause (not the stuff I quoted above). Also, I’m not saying you need a lawyer with you when you sign ITunes terms of service…. but particularly when rights to your persona, likeness, image and voice are concerned — lawyer up.

I no longer practice law, no longer hold any active licenses and this is not legal advice.

This is human to human advice:

• read the contract, not just once, but twice
• get a lawyer to read it, negotiate and advocate for you. Sure, it’s cost on the front end, but that may save a more costly ACK!(d) (Alo/Cody/Kino/Dana) debacle on the back end. Lawyers are designed to imagine worst case scenarios.

Cover your backside and please —

Don’t sign it away.

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— a little about me: I’m a graduate of Amherst College and the University of Virginia School of Law. I worked as a litigation attorney for Skadden, Arps, Slate, Meagher & Flom LLP in Boston and for Flemming Zulack Williamson Zauderer LLP in New York. I was licensed in both states, but have since retired those licenses. I no longer practice law; I practice the weird Ashtanga yoga stuff you see me do on my mat (particularly on Instagram).

— this blog is not legal advice. I am not your lawyer. I am not anyone’s lawyer. I have no active law license.

–Even with the court’s decisions, I do not have access to all the facts of this case; indeed the case being at such an early stage don’t have all the guts yet. And what happens in court doesn’t necessarily turn on who is the good guy or bad guy. Dana’s legal fees must be astounding (lawyers often bill in six minute increments). I feel for her.

*Alo’s claim is defamation, which does not rest on a contract; it is rather simply a claim of damage based on allegedly untrue things that Dana said in that Instastory. It is possible that Dana could have written her Instastory even if she’d had an opt-out option or approval clause in her contract with Cody.