Email, Email Everywhere and No Time to Think

While not one of the sexiest topics covered here, my previous post on email disclosures (here) generated a lot of feedback.  Emails appear to be a hot topic.  Here is a link to week long series from NPR’s Morning Edition on emails on everything from management, to emerging technologies to legal issues and invitations to include humorous email gaffes. A week long series? OK, I am enough of a nerd to listen, but will others?

While I would rather offer stories of humorous email forwards, I have chosen law and not comedy (the world and my family’s financial security thank me).  Therefore, to follow-up on the prior post about email disclosures, I have uncovered three cases dealing with email disclaimers.  To save you time, none of the questions was based solely on the inclusion of an email disclaimer although the courts cited to the disclaimer as one of many factors to support the courts’ decisions.  For those whose inboxes aren’t overflowing, here is a more detailed analysis of the three cases.

The most recent case is Blackwater Technologies, Inc. v. Synesi Group, Inc., 2008 WL 141781, *2 (D.Minn. January 14, 2008). In that case, the plaintiff attempted to suggest the defendant fraudulently misrepresented whether certain technologies being acquired were patented or infringed on others’ patents. An email from the seller/defendant to the buyer/plaintiff contained a disclaimer in bold letters stating:

[t]his is a confidential draft and is not for use by any party for any reason. It cannot be copied or distributed.

Rather than relying on the email disclaimer, the court focused on the content of the email to determine the seller had no reliance as a matter of law necessary for the fraud claim. The court held the email should have put the buyer on notice that a formal patent had not yet issued. The email stated: “[a]ll of the potential insurance partners have been aware of the pending PORTOGO process patent since early 2002 but formal conversations were delayed until we received notice of allowance for the claims made in the patent. This happened in mid August this year.” On these facts, the court found the buyer could not have acted in reasonable reliance on assurances the technology was “fully patented.”

The defendant/seller also moved for summary judgment on the plaintiff/buyer’s breach of contract claim arguing the “disclaimers” in the referenced email show that the alleged oral agreement was merely an agreement to agree, which is unenforceable under Minnesota law. Id. at *6. It was not clear whether the court was referencing the email disclaimer itself or the more substantive contents of the email. Nevertheless, the court held the email did not conclusively preclude the possibility that an enforceable oral agreement had been reached. Thus, the summary judgment was denied and the plaintiff was able to proceed.

In Employer Reinsurance Corp. v. Laurier Indem. Co., 2007 WL 1831775 (M.D.Fla. June 25, 2007), the insured made the argument the insurer denied coverage therefore waiving any defense the insurance company had regarding the plaintiff waiting too long to provide notice to the insurance company. The substance of the email from the insurance company said, “any reasonable insurer would agree that this exposure absolutely arises from the latter policy years” and “demands” that the case be settled. Id. at *5. The court also noted the following email disclaimer: “this letter is not intended to contain a full analysis of coverage with regard to this claim. ERC hereby reserves all legal rights and those contained within the certificate of reinsurance.” Id. It was not clear whether this disclaimer was on every outgoing email or only this specific one. The court denied ruling on a summary judgment basis and decided it would let the jury decide as to whether the email was a denial of coverage sufficient to waive the insurance company’s notice requirements. Id.

Finally, the court discussed email disclaimers in the case ofAngelo, Gordon & Co., L.P. v. Dycom Industries, Inc., 2006 WL 870453 *7 (S.D.N.Y. March 31, 2006). This case involved another dispute as to whether or not there was an agreement or merely an agreement to agree. The relevant email from the seller’s agent to the buyer had the following disclaimer:

This is not an offer (or solicitation of an offer) to buy/sell the securities/instruments mentioned or an official confirmation…. You should not use email to request, authorize or effect the purchase or sale of any security or instrument, to send transfer instructions, or to effect any other transactions.

The substance of the email confirmed the sale subject to execution of further documentation. Specifically, the email stated:

As we discussed, this will confirm Dycom’s sale of approximately $39,543,000.00 of claims against Adelphia at a net price to Dycom of 75% (Dycom to receive 76.5% and remit a fee of 1.5% to MS), subject to execution of customary documentation for the sale of trade claims of debtors in bankruptcy, including the following (the exact wording to be agreed by counsel):

Id.at *3 (then listing a handful of specific terms in bulletpoint form).The plaintiff argued the email provided sufficient “acceptance” to form the contract and that the disclaimer was merely boilerplate and did “not provide an excuse to frustrate the parties’ contractual intent.” The defendant countered that the emails expressed an intent to enter into a subsequent formal contract subject to final approval.The court first analyzed the substance of the emails before addressing the disclaimer about which it wrote:Plaintiff’s contention that the Disclaimer Language is boilerplate is unpersuasive in light of, among other things, its admission that it understood the Disclaimer Language to mean “don’t bind us based on anything in the e-mail.”Id. at *7-8 (noting both parties engaged in further negotiations, drafts of agreements and that plaintiff’s draft included language that its obligations to pay was conditioned upon the defendant’s execution of the draft final agreements that never got signed). While not a ringing endorsement of the disclaimer, it further supports the notion that it does not hurt to include such disclaimers.

DISCLAIMER:  I am not liable for anything on here and no one can sue me EVER for ANYTHING.  And, if you have decided to read this far, you need a life or were forced to research email disclaimers.  And you have agreed to a binding contract that requires you to pay me $100.