The First Division found that the transmission of the email itself, and not the seizure (or re-registration) of a lawyer`s name as a “signature”, constituted a subscription within the meaning of CPP 2104. This position overturned the lower court`s decision, which refused to enforce the settlement because it was unclear whether the lawyer had physically entered his name at the end of the email before sending it. While J.B.B. Investment Partners` judgment may seem surprising given that the emails exchanged by the defendant repeatedly stated “I agree” or “I agree” with his typed signature at the end of the email, he was subject to a high standard under section 664.6 of the Code of Civil Procedure, which is triggered when a party attempts to enforce a settlement between the parties. The case stemmed from an alleged agreement under which counsel for the plaintiffs and counsel for the defendants, Sea Crest Construction Corp. and Peter Scalamandre & Sons, Inc. (collectively, “Sea Crest”) have agreed to settle the underlying bodily injury claim of $275,000. The settlement agreement was set out in an email communication in which counsel for the plaintiffs stated, “This is to confirm the $275,000 settlement. Please send the language of release and the parties to be dismissed.
At the end of the email was a signature block with the lawyer`s name, company name, address, and phone number. Later that day, counsel for the plaintiffs sent a follow-up email saying, “Please confirm that we have reached an agreement.” Unlike the first email, this email did not contain the pre-filled signature block. Sea Crest`s lawyer replied: “Confirmed. I will provide you with information on the release as soon as possible. The email was sent via the lawyer`s phone and included an automatically generated footer indicating that it had been sent from an iPhone. However, the court expressed reservations about its decision. First of all, it has been found that emails can have authentication issues because accounts can be hacked. Therefore, the presumption that an email from a lawyer`s account is genuine is rebuttable. Secondly, the e-mail must contain all the essential conditions for concluding a binding agreement. In addition, the court stated that whether it was a draft regulation or an accidental sending of a draft email was not an issue in this case and therefore did not have to decide when an accidental email was considered “recovered” (although it offered that “immediate action to correct the error” would be part of such a representation). In the Second Circuit, the four Winston factors govern the factual determination of whether the parties intended to be bound by a settlement in the absence of a written and signed settlement agreement: (1) whether there was an express reservation of the right not to be bound in the absence of a written settlement; (2) if the contract has been partially performed; (3) if all the clauses of the alleged contract have been agreed; and (4) whether the agreement in question is the type of contract usually drawn up in writing.
[8] Here, the second circuit concluded that the first and third factors spoke in Lehman`s favor. Shinhan has not expressly reserved the right not to be bound if there is no letter in his April 20 email to the mediator. And given the email correspondence between the parties, the Second Circuit “conveniently concluded” that there were no additional terms of the alleged contract that needed to be agreed. [9] On the other hand, there was no partial enforcement of the agreement (Shinhan paid nothing) and it was the debtor`s “ongoing practice” to rely on a written agreement to settle claims in the event of bankruptcy. [10] Therefore, the second and fourth factors weighed in Shinhan`s favor. The case concerned a right to additional benefits for underinsured motorists as a result of a road accident. He was arbitrated and an arbitral award of $975,000 was rendered. However, since none of the lawyers were aware of the sentence, they continued to negotiate and reached a settlement of $400,000 three days later. The plaintiff`s lawyer sent an email that said, “Confirmed – we`re happy for 400K,” which ended with “Sincerely,” followed by a standard signature block with the lawyer`s name and contact information. The opposition lawyer responded with a series of closing documents to execute, writing: “Get it signed quickly before a decision is made, you don`t want your client to separate.” The plaintiff`s lawyer replied, “Thank you. I will try to get them in as soon as possible. However, when counsel for the plaintiff learned of the sentence, he refused to proceed with the settlement to a lesser extent.
It was followed by an application for enforcement of the composition and annulment of the arbitral award. Most civil cases are settled. Court statistics show this, and anecdotally, most lawyers would agree. In the past – for example, older lawyers refer to times when written correspondence was the norm – settlement offers were often submitted in a letter signed by a lawyer. .