In another post, I discussed how an email can satisfy the signature requirements of the Statute of Frauds. Nevertheless, an email is not always sufficient. Indeed, as the plaintiff in Terry v. Vinfen recently learned, sometimes you just have to do things the old fashioned way, and send a letter.
In June of 2019, Richard Terry filed a lawsuit against Vinfen and one of its employees. Not long thereafter, the parties engaged in mediation, which resulted in a settlement. After verbally acknowledging that settlement on the record, a written settlement agreement was prepared and executed by all parties on October 10, 2019. In order to comply with the Older Workers Benefit Protection Act, the settlement agreement specifically provided that Terry:
May revoke [the Settlement] Agreement within seven (7) days after he signs it, by delivering a letter in hand or first class mail (postage prepaid), to Jaclyn Kugell, Morgan, Brown & Joy, LLP, 200 State Street, Boston, MA 02109. This [agreement] shall be of no force and effect unless Mr. Terry … does not revoke this [agreement] within the seven (7) day period outlined [in the previous sentence].
On October 13, 2019, Terry emailed Attorney Kugell, stating: “Kindly accept this notice as my revocation of the confidential settlement agreement and release in Terry v Vinfen et al. signed on October 10, 2019.” While both defendants’ counsel and the mediator reached out to Terry in response to this email, Terry did not respond to any of their inquiries other than to mail a printed copy of his email to Attorney Kugell, which she received 8 days after October 10.
Terry then took the position that he had revoked the settlement, leading the defendants to move to (i) enforce the agreement, and (ii) dismiss the litigation. In addressing that Motion, the Court made quick work of Terry’s primary argument that his email constituted effective notice, rendering the settlement agreement a nullity:
By the plain terms of the parties’ settlement agreement, [Terry’s] email [was] insufficient to revoke the agreement. As the parties recognized in their signed agreement, letters often possess a greater solemnity than emails.
While Terry also argued that his mailing of the email constituted sufficient notice, the Court noted that it was not received until after the 7 day revocation period had expired, and the common law rule was that notice was effective upon receipt. Finally, the Court also was unmoved by any of Terry’s equitable arguments and, more importantly, noted that it was not even deciding that considering equitable factors was appropriate.
Terry has two fairly straight-forward takeaways for in-house counsel. First, when drafting any sort of notice provision be sure to consider how easy or difficult you want to make it to provide effective notice. Second, if you do find yourself in a position where you have to provide notice, be sure to go back to the agreement and check the language in the notice provision. Failing to do that could result in a technical miscue that leads to a big practical problem.