Happy Monday TCPA World! We are at the TCPA Compliance Summit! If you are here, please stop by and meet us 😊
Quick break here to let you know about an interesting case…
Well, I can’t stress enough how important it is for email communications to be clear especially between counsel. I get it – we are busy and sending a quick reply is easier. But beware of the short and succinct messages in lieu of the bigger picture especially in settlement discussions. This case clearly found that an unwritten agreement [i.e. email exchange] of the material terms was sufficient for a settlement despite the ambiguity on how many accounts were involved in the settlement even when that number differed from the total TCPA claims in the case.
The District Court of New Jersey denied American Express’ (“AMEX”) appeal of the Magistrate Judge’s Decision and granted Plaintiff’s Motion to Enforce Settlement Agreement holding that a settlement agreement existed based on the email communication of counsel. Zev Newmark, et al., v. American Express Company, 2022 WL 17340775 (D.N.J. Nov. 30, 2022).
Plaintiff sued Defendant for violations of the Telephone Consumer Protection Act (“TCPA”). About six months later, pursuant to a perceived settlement and upon Defense counsel’s request, Plaintiff filed a Notice of Settlement. It was short-lived because the parties were unable to reduce their settlement to a written settlement agreement. Thereafter, the Magistrate Judge granted Plaintiff’s Motion to Enforce Settlement and denied without prejudice Defendant’s request to reinstate its motion to compel and motion to stay action. Defendant appealed.
Some background – Plaintiff began settlement discussions with Defendant – some discussions were exchanged via email – in exchange for debt waiver and tradeline deletion for Plaintiff’s AMEX accounts – originally five but maybe six. Plaintiff argues that these emails constituted a settlement agreement. AMEX disagrees and argues that there was “no meeting of the minds” because Plaintiff wanted to include a “sixth account” into the settlement instead of the original five accounts that were the subject of Plaintiff’s TCPA claims.
The Court agreed with Plaintiff and based its finding on the email exchanges between counsel. Plaintiff’s email clearly stated the “material terms of the agreement” and AMEX responded stating that a draft of the agreement was being prepared and requested that Plaintiff file a notice of settlement with the Court, which Plaintiff filed. Then, Plaintiff sent an email with the list of six accounts. AMEX responded with a list of five accounts, not six. Plaintiff’s counsel responded by reiterating the “material terms of the agreement,” and AMEX responded, “correct…”
Again, Plaintiff inquired about the sixth account. AMEX reiterated its understanding that the sixth account was not included because it was not covered under the terms of the original agreement, and it was not amongst the five accounts of Plaintiff’s TCPA claim. The Court was not convinced with AMEX’s argument that no agreement existed because the parties had not agreed on all possible terms. The Court stated that “not every term needs to be agreed upon to have an enforceable agreement, only material ones” and held that AMEX’s rejection of the sixth account as part of the settlement did not invalidate the parties’ agreement with respect to the first five accounts – the underlying TCPA claims.
So, AMEX is on the hook for a settlement of at least five accounts, probably six.
- If you reach an agreement of material terms, you may have an agreement!
- If you file a Notice of Settlement, make sure you have a detailed understanding of the settlement. Or save yourself the trouble and prepare a Settlement Agreement or at least a Term Sheet.
- Before you send that email, make sure your position is articulated properly because a court may look at it and decide for you whether you had a meeting with another mind!
Til next time, Countess!