ACC Focus on the New Jersey Chapter - February 2012 (Print All Articles)

President's Message

Second try, the last issue had the wrong version of the writing contest rules. 

It is with great excitement that we unveiled the NJCCA’s Legal Fiction Writing Competition this past month.  For those of you who may have missed the e-mail from our Executive Director, details are included in this Newsletter and you can click on this link to find the Rules and Regulations of the Competition which includes a self-explanatory Copyright License Agreement. 

The idea for the Legal Fiction Writing Competition came to me over the holidays as I read a novel that my mother-in-law had given to me, The Litigators by John Grisham.  Grisham began his career as a practicing attorney before transitioning to a full-time author.  The thought struck me that we probably have a number of very talented fiction writers among our members and sponsors but who lack an outlet to display their works.  I thought it would be a lot of fun to have a friendly legal fiction writing competition, with the winner getting his or her work published in our Newsletter and free attendance for one year at our major events, with the runners-up receiving recognition and free attendance at various events.  In this way, the idea for this competition was born.

We are truly looking forward to reading the submissions from as many of you as possible. Please take careful note of the guidelines for length, margins, etc., as well as the May 25 submission deadline.   May the best writers win!

If you have any questions about the Legal Fiction Writing Competition or anything else, please do not hesitate to contact me at (201) 272-5308 or joseph.aronds@hartzmountain.com  I always look forward to chatting with NJCCA members.

Be Careful What You E-Mail; E-Mail As A Binding Contract In A Technological Age

C. John DeSimone, III

If you conduct business via email, you need to read this article.

Although most believe e-mails cannot bind parties to a “deal,” preferring instead to think that only pen and paper can form a contract, New Jersey’s law and that of its neighboring states, begs to differ.  In today’s business climate companies are not above claiming a contract was formed by the mere exchange of e-mail, and in some cases they may be right.

We’ve all been there before.  It’s late in the day and we’re exchanging e-mail about the terms of a deal.  If in the context of a lease negotiation, maybe we’re focusing on the space to be leased, the rent to be paid, etc.  We all assume that a formal (i.e., paper) lease will be prepared at a later date and a subsequent round of negotiations will take place as to its terms.  Unfortunately, the law treats our e-mail exchange just as it would any other offer and acceptance.  The courts look past the form of the exchange to the content of the e-mail.  If you have offer and acceptance, and all of the material terms of a deal, you may have a valid enforceable contract even if you intend to “formalize” the agreement in a paper lease.

Discussion of the Law

The fact that we think of e-mail as being a quick, less formal way to communicate, is not the focus of a judicial inquiry into whether an e-mail exchange created a contract.  Instead, courts focus on the content of the exchange as seen through the lens of traditional contract analysis.  For instance, in Miken v. Hind, a 2009 unpublished decision from the New Jersey Appellate Division, the court analyzed the exchange of e-mail and found no contract because the parties had not agreed on all of the essential terms of the proposal they were discussing.  Similarly, in Malloy v. Intercall, a 2010 unpublished New Jersey District Court case, the court found that the e-mail exchange did not form a contract because the proposed terms discussed were not sufficiently definite – they lacked discussion of the proposed contract duration.  In a 2006 unpublished New Jersey District Court case, K-Tronik v. Vossloh-Schwabe, the e-mails did not form a contract because they didn’t include a discussion of price.  What’s clear from the analysis in each of the above cases is that the focus was on the content of the communication rather than its form.

E-mail exchanges can create a binding contract even if the parties intend to memorialize their agreement in a subsequent paper writing.  The Third Circuit in a 2010 opinion, California Sun Tanning v. Electric Beach, relying on Pennsylvania law, found that an exchange of e-mails about a franchise proposal constituted a binding contract because it contained all the material terms of a deal, even though the parties intended to “formalize” their agreement at a later time in a paper writing.  That the parties intended to memorialize any agreement in a subsequent signed writing was not enough as the court found there to be no evidence that the parties “believed that the enforceability of any agreement would be contingent upon the execution of a writing memorializing its terms.”  A similar conclusion about the binding effects of e-mail exchanges, even in the face of the parties’ contemplation to “formalize” their agreement in a later writing, was found by the New Jersey District Court in 2011, in Tangible Value v. Town Sports International Holdings.  There, the court analogized the e-mail exchange to any other “informal agreement,” which the court noted under New Jersey law could bind the parties unless there was a clear intent to be bound only upon the execution of the subsequent signed writing.

A 2010 decision from the Second Circuit, Rubenstein v. Clark & Green, distinguished between an e-mail exchange creating a formal contract versus a binding “preliminary” agreement.  In Rubenstein, the parties exchanged numerous and detailed e-mails concerning architectural services to be provided by Clark & Green for plaintiffs.  The court rejected the claim that the e-mails constituted a binding contract because the parties had expressed the intent to be bound only by a subsequent formal paper contract that they would execute.  As to whether the e-mails could constitute a binding “preliminary” agreement under New York law, the court developed a four part test:  “(1) whether there has been an express reservation of the right not to be bound in the absence of a writing; (2) whether there has been partial performance of the contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract that is usually committed to writing.”

Finally, at least one court has held that an e-mail is a “writing” within the meaning of the statute of frauds.   A 2010 decision of New York’s Supreme Court, Appellate Division, Naldi v. Grunberg, found that an e-mail would satisfy the requirements of New York’s Stature of Frauds, which generally requires certain transactions be in written form.

Practical Tips

To help reduce the likelihood of being called into court someday about an exchange of e-mail you had with your counterpart to a transaction, or to help you prevail if you are called into court by a disgruntled adversary who wants to claim a deal, there are several practical steps you can take.  First, you and your adversary should make it clear, in a paper writing or an e-mail exchange, that there is no agreement, whatsoever, until a formal written document is prepared and duly signed by both parties.  Second, consider adding to your e-mail signature a statement such as this: 

 “To the extent this e-mail discusses the terms of a proposed contract, this e-mail is not intended to bind the party sending the e-mail or its principal to a contract, which contract is expressly understood to be formed only upon the subsequent negotiation of a formal written document, duly agreed-to and signed (via handwriting) by both respective parties.”

As you may have noticed from the recent dates of the above cases, the law is just beginning to address the prevalence of e-mail in our lives and the application of the old legal standards to the new technology.  The law is generally many years if not a decade behind technological advancements.  It is anticipated that as society continues to develop new technologies, like text messaging, the law will slowly evolve as well.

Mr. DeSimone is a Counsel of the law firm of Porzio, Bromberg & Newman, P.C., and can be reached at 973-889-4272 or cjdesimone@pbnlaw.com.  He specializes in commercial and real estate litigation. The author thanks Suzanne Peters for her invaluable research for this article.

 

Inaugural NJCCA Legal Fiction Writing Competition

Want to channel your inner Twain or Hemingway?  If so read on . . .

To our Members and Sponsors:

Are you the next John Grisham?  Are you channeling your inner Scott Turow?  Is there a law-related story that you’ve been waiting to tell?  If so, then this competition is for you!

It is with great excitement that we unveiled the NJCCA’s Legal Fiction Writing Competition this past month. For those of you who may have missed the e-mail from our Executive Director, details are included in this Newsletter and you can click on this link to find the Rules and Regulations of the Competition which includes a self-explanatory Copyright License Agreement.

The idea for the Legal Fiction Writing Competition came to me over the holidays as I read a novel that my mother-in-law had given to me, The Litigators by John Grisham. Grisham began his career as a practicing attorney before transitioning to a full-time author. The thought struck me that we probably have a number of very talented fiction writers among our members and sponsors but who lack an outlet to display their works. I thought it would be a lot of fun to have a friendly legal fiction writing competition, with the winner getting his or her work published in our Newsletter and free attendance for one year at our major events, with the runners-up receiving recognition and free attendance at various events. In this way, the idea for this competition was born.

We are truly looking forward to reading the submissions from as many of you as possible. Please take careful note of the guidelines for length, margins, etc., as well as the May 25 submission deadline. May the best writers win!

If you have any questions about the Legal Fiction Writing Competition or anything else, please do not hesitate to contact me at (201) 272-5308 or joseph.aronds@hartzmountain.com I always look forward to chatting with NJCCA members.

General Counsel of the Year Awards

sponsored by Nicoll Davis & Spinella LLP, Update Discovery, Real Estate Strategies Corporation, NJBIZ and NJCCA
Do you know a General Counsel, Chief Legal Officer and Corporate Compliance Professional who deserves to be recognized?

Nicoll Davis & Spinella LLP and Update Discovery are proud to announce the inaugural “General Counsel of the Year Awards” to honor outstanding individuals who work in the legal and compliance areas of New Jersey businesses.  ND&S and Update have partnered with NJBIZ, New Jersey’s preeminent business journal, NJCCA and Real Estate Strategies Corporation for this exciting event.  The “General Counsel of the Year Awards” recognizes standout General Counsels, Chief Legal Officers and Corporate Compliance Professionals for their significant positive impact on their organizations.  Its unique connection to New Jersey’s business and legal communities makes this exciting program the first of its kind in New Jersey.   NJCCA is pleased to sponsor and support this event.

The awards honor General Counsels, Chief Legal Officers and Compliance Professionals at public and private companies as well as non-profit and governmental entities.  All nominations will be reviewed by a distinguished panel of judges who will select finalists and winners in each category.  The finalists and winners will be profiled in a special supplement in the June 11, 2012 issue of NJBIZ, as well as honored at an awards breakfast on June 5, 2012, at the Palace at Somerset Park in Somerset, New Jersey. 

NJBIZ and the program’s founding sponsors, Nicoll Davis & Spinella LLP, Update Discovery, and Real Estate Strategies Corporation, are actively seeking nominees for this exceptional new program.  The nomination deadline is March 2, 2012.  To submit a nomination form, or sponsor the event, please contact the sponsors or visit www.GeneralCounseloftheYear.com. 

Christopher M. Santomassimo, Esq.

Nicoll Davis & Spinella LLP

(201) 712-1616

CSantomassimo@NDSLaw.com

Larry Samilow
Update Discovery

(908) 464-4660

LSamilow@UpdateLegal.com

Anthony J. Davis, Esq.
Nicoll Davis & Spinella LLP

(201) 712-1616

ADavis@NDSLaw.com

Andrew Zezas, SIOR
Real Estate Strategies Corporation
(732) 868-0000 x111

andrew.zezas@RealStrat.com

About the Sponsors:

Nicoll Davis & Spinella LLP

Nicoll Davis & Spinella is a boutique law firm located in Paramus, New Jersey that helps businesses creatively and cost-effectively manage legal risk.  They counsel on a broad range of business and litigation issues, and specialize in corporate compliance and ethics, human resources, and intellectual property matters.

ND&S is also the founder of the New Jersey Corporate Compliance Roundtable, a forum of respected corporate compliance and ethics professionals who gather to exchange information, share ideas, and build their professional networks.

For more information, please visit: www.ndslaw.com and www.compliancenj.com 

Real Estate Strategies Corporation

Real Estate Strategies Corporation provides corporate real estate advisory and transaction services to CFOs, Management, and corporate Boards in New Jersey and throughout North America. Real Estate Strategies Corporation is a major sponsor of CFO Studio and CFO Studio Magazine, and is the sole real estate sponsor of the NJBIZ CFO-of-the-Year Award, Financial Executives International - New Jersey Chapter, and the ACGNJ CFO Forum.

For additional information, please visit: www.realstrat.com

Update Discovery, Inc.

Update Discovery is a discovery vendor committed to providing its clients with superior comprehensive discovery solutions customizable through expert guidance.  Update Discovery takes an integrated case-focused approach to client engagements and develops individualized discovery management strategies that fit the needs of each particular case.

For more information, please visit: www.updatediscovery.com

NJCCA

The New Jersey Corporate Counsel Association (NJCCA) is dedicated to the needs, education and advocacy for the New Jersey in-house legal community.   Our current membership consists of 1,217 attorneys from a wide variety of industries and is continually growing.  NJCCA’s mission is to provide substantive educational CLE programs for its members as well as numerous opportunities for professional and social networking.  For information about membership or to become a sponsor with NJCCA, please contact Gail Girard, Executive Director at njcca@comcast.net or call 609-312-7772.

More Information:

For information on how to become a sponsor of the General Counsel of the Year Awards, please contact:

Susan Alexander

NJBIZ

(201) 969-9061

salexander@njbiz.com

For general questions regarding the General Counsel of the Year Awards, please contact:

Sarah Spangler

NJBIZ

(732) 246-5713

sspangler@njbiz.com

ACC Recognizing Value in Legal Spending

Veta T. Richardson, President, ACC

Do you have an innovative in-house value story to tell?  Share it with your peers.

　

	Dear NJCCA Member: Have you implemented value-based pricing, or any of the related management practices advocated as part of ACC’s Value Challenge? If you have, we would love to hear your story! You could be selected and recognized as an ACC Value Champion! We want to hear about all sorts of value practices. Perhaps what you did was quite innovative, or maybe you led your department’s first value initiative, using "101-level" management practices. Bottom line: if you reduced spending, increased predictability or improved legal outcomes, we want your nomination. Here are just a few examples of the many ways you could be a Value Champion: Applying a flat fee with a success bonus to a thorny matter, resulting in a great result at a lower cost. Implementing a project management program in your practice area that resulted in hitting your budgets on every matter, all year. Putting a portfolio of similar work into a retainer arrangement and getting great added-value consulting along with the predictability you were seeking. Mapping out matter processes to pinpoint inefficiencies and redesigning the workflow to drive out unnecessary steps and costs. Installing an extranet to support a knowledge management program across all of your panel firms, reducing fees across the board. Using a fee structure that got your firms really invested in reducing claims and winning more cases. Employing a combination of value practices to drive savings, predictability and outcomes. Tell us your story and get the recognition you deserve. ACC wants to celebrate your accomplishments and share your management tactics, enabling others to model your successes and drive value for clients. You can nominate yourself or another in-house law department leader for a project that did not involve a law firm, or you can let us know about a great department/law firm collaboration. Nominations are due by March 15, 2012. To submit your story, or for more information, please visit www.acc.com/valuechampions. If you have any questions, please contact Catherine J. Moynihan at moynihan@acc.com or +1 202.293.4103 x398. 　 Thank you, Veta T. Richardson President and CEO Association of Corporate Counsel 　 　 You are receiving this message as a valued member of ACC. If you are not a member or have any questions about your membership, please contact us at membership@acc.com. Tell a Friend | Update Your Member Profile Copyright © 2012 Association of Corporate Counsel

Association of Corporate Counsel By in-house counsel, for in-house counsel® 1025 Connecticut Ave., NW, Suite 200, Washington, DC 20036 USA +1 202.293.4103 | www.acc.com

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Substantive Articles

Giuliano Chicco

With our new monthly feature, you now have multiple bites at the apple.

One of the features we value most is the substantive article featured in each monthly issue.  Starting with the January 2012 issue we will publish a rolling list of the substantive articles from the past twelve months.  We hope that this feature will make it easier to find that article you remembered reading.  Of course copies of all the articles going back several years are always available on the NJCCA website.  

Substantive Articles

·         Insurance Coverage for Greenwashing Claims: It Depends on the Packaging; J. Wylie Donald and Stephanie Platzman-Diamant, McCarter & English

·         Without Bounds: Employee Retaliation Claims Reign Supreme; Amy Komoroski Wiwi, and Danielle C. Carmona, Lowenstein Sandler P.C.

·         Building Information Modeling Is Revolutionizing Construction; Robert C. Epstein, Jacqueline Greenberg Vogt and David C. Jensen, Greenberg Taurig

·         A Little Bird Says That the FTC Finalized the Twitter Privacy-Breach Settlement, Google Got “Buzzed,” Ashton Kutcher Got Twitter-Punk’d & Your E-Mail Address May Have Been Stolen; Robert J. McGuire, Sterns & Weinroth

·         Proceed With Caution: Protecting Your Business From Employees Who Disclose Confidential Company Documents To Support A Claim of Discrimination; Mark A. Saloman, Proskauer Rose, LLP

·         The Blind Men and the Elephant: How In-House Counsel Might See Dodd-Frank Differently; Ellie Garfinkle, Corporate Legal Solutions Consultant, Lexis-Nexis

·         Apple (Pie), Cotton Comfort and Hershey’s Kisses: S’More on International Human Rights Due Diligence; Raymond M. Brown, Greenbaum, Rowe, Smith & Davis.

·         Safeguarding the Decision-Making Process in Employee Actions; Kelly Ann Bird, Gibbons, P.C.

·         Duty to Protect the Confidentiality of E-Mail Communications with One's Client, Giuliano Chicco, NJCCA VP for Communications

·         The Impact Of Anti-Fraud Enforcement On Corporate Compliance Programs, David Restaino, Fox Rothschild

·         Patent System Reform in 2011: U.S. Changes from First to Invent to First to File; Bob Shepherd and Emmett Collazo, Porzio, Bromberg & Newman, P.C.

·         Theater Tips for Patent Jury Trials: A View from the Trenches; Michael A. Nicodema,  Greenberg Taurig, LLP

·         Shareholder Liability During Periods of Charter Revocation; Patricia McManus and Eric Michaels, Fox Rothschild LLP

Our New Members

Meet our most recent new members. 

Members Notes

Short notes of interest to and about our members
Brief notes for and about members, this month featuring news about Win Apel, Evaleon Hill, Joelle Quilla, ACC Contract Project, Hudson County CASA and our ongoing search for volunteers.

 

Member Notes is our monthly vehicle for members to share professional and personal information with other members of the NJCCA.  If you have a new position, a new title, or have recieved a professional (or other) award, published a book or article, or have any other similar information you would like to share with the membership, please send a note directly to Giuliano Chicco, NJCCA Newletter Editor, at GChicco1@verizon.net.