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Current Developments in the Commercial Divisions of the
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Posted: April 30, 2017

Breach of Contract Claim Dismissed: Counteroffer Extinguished Offer

On April 17, 2017, Justice Ramos of the New York County Commercial Division issued a decision in Keitel v. E*Trade Financial Corp., 2017 NY Slip Op. 50531(U), holding that a counter-offer by the plaintiff extinguished the defendant’s offer.

In Keitel, the plaintiff alleged that a term sheet sent to his agent constituted a binding agreement and that in any event, the term sheet constituted an offer, which the plaintiff accepted. In deciding the defendant’s motion to dismiss, the court held that the term sheet was not a binding agreement and, as to the offer and acceptance argument, it dismissed the plaintiff’s claim, explaining:

E*Trade alleges that even if the Term Sheet constituted an offer, Ms. Sellars failed to clearly and unequivocally accept its terms. After receiving the Term Sheet, Ms. Sellars not only requested a long form contract, but also asked for further information on the days and location of shooting, rehearsal time, and the director. E*Trade contends that a request for additional clarification of material terms cannot be an unequivocal acceptance of an offer.

. . . Even if the Court were to find that the Term Sheet constituted an offer, Mr. Keitel has failed to establish an unqualified acceptance of such offer, extinguishing the initial provisions of the Term Sheet. Ms. Sellar’s recognition of Mr. Keitel’s agreement to do the three E*Trade commercials is insufficient to constitute an acceptance. In that same email, Ms. Sellars not only asked for more information regarding material terms, but also did not acknowledge and therefore could not accept the terms regarding the production of two sixty second radio commercials.

In addition, Ms. Sellar’s statement that she intended to provide a redline memorializing additional terms that were very important to Mr. Keitel does not demonstrate acceptance of the Term Sheet language. These additional requests and conditions are equivalent to a rejection or a counteroffer.

(Internal quotations and citations omitted).

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