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Can an E-mail Exchange Create a Binding Contract?

Posted: November 20th, 2015

Published In: The Suffolk Lawyer

By Patrick McCormick

Can an e-mail exchange create a binding contract?

The short answer is yes!

With the proliferation of electronic communications, it is not surprising that courts are increasingly called upon to address claims alleging the creation of a binding contract based upon an exchange of e-mails.

The Appellate Division, Second Department recently held that e-mail communications between parties were sufficient to create a binding contract. Law Offs. of Ira H. Leibowitz v. Landmark Ventures, Inc., 131 A.D.3d 583, 15 N.Y.S.3d 814 (2d Dep’t 2015) involved breach of contract claims related to services provided by the plaintiff. In examining e-mail communications between the parties, the Court found “[b]y the plain language employed” by the parties in e-mail communications, it was clear that the plaintiff made an offer to provide services for a certain fee and that the defendant accepted the offer, creating a binding contract.

The Appellate Division, Third Department addressed a similar situation in the recent case In re Estate of Wyman, 128 A.D.3d 1157, 8 N.Y.S.3d 493 (3d Dep’t 2015). The decedent and the respondent purchased an improved parcel of real property. After the decedent’s death, her executor commenced a proceeding against the respondent to turn over ownership of the entire parcel to the estate, claiming that a series of e-mails between the decedent and respondent had created an enforceable contract to transfer sole ownership of the property to decedent. Upon examining the e-mails, the Appellate Division found that there was no contract because the e-mails did not establish a necessary term of the claimed contract: the price to be paid for the transfer of the property. It appears from this decision that if the e-mails in question contained evidence of an agreement on price, the Court would have found a binding and enforceable contract in the e-mail exchange.

While communicating by e-mail may seem informal, these cases make clear that parties to an e-mail exchange must exercise care to avoid unintentionally creating a binding contract. An otherwise valid contract cannot be undone simply by concluding with “Sent from my iPhone.”

Best of Long Island 2016 – VOTE NOW!

Posted: November 9th, 2015

October 1, 2015

The Long Island Press Bethpage Best of Long Island Awards nomination period is over, the voting is OPEN, and we’re on the ballot again!

As the winners of 2 “Beth p age Best of Long Island 2015” awards, for CMM and Joe Campolo, we’re honored to be in the running again. Please take a moment to vote for us, to help us maintain our title.

VOTE HERE!

McCormick and Basso Receive Leadership in Law Awards

Posted: November 6th, 2015

CMM congratulates Patrick McCormick and Jeffrey Basso on being selected to receive the 2015 “Leadership in Law” Awards. They will be honored at a gala dinner hosted by the Long Island Business News on Thursday, November 19, 2015 at Crest Hollow Country Club in Woodbury.

Patrick McCormick will receive the Partner Award. Head of the firm’s commercial litigation and appellate practice groups, he received his J.D. from St. John’s University School of Law and his undergraduate degree from Fordham University. Mr. McCormick serves as President of Child Abuse Prevention Services (CAPS) and as a member of the Board of Directors for Developmental Disabilities Institute (DDI).

Jeffrey Basso will receive the Associate Award. A senior associate in the firm’s commercial litigation and labor and employment groups, Mr. Basso is also an Advisory Board member of Ronald McDonald House of Long Island. He is a graduate of St. John’s University School of Law and the University of Delaware.

Long Island Business News created the “Leadership in Law” Awards to recognize individuals whose leadership, both in the legal profession and in the community, has had a positive impact on Long Island.

October 2015 Legal Brief – Firm Newsletter

Posted: October 26th, 2015

To-Do List After Forming Your Business

Posted: October 21st, 2015

In last month’s blog article, I shared my enthusiasm for the “startup entrepreneurial ecosystem,” specifically here on Long Island, and offered tips for starting your own successful business. One of the most satisfying feelings in the world is making it official by forming an LLC or incorporating. But then what? To keep that excitement growing as you focus on building your business, it’s important to take steps early in the process to help your new venture start off strong.

Nellie Akalp, an Entrepreneur.com contributor and entrepreneur and CEO herself, recently published an article on Entrepreneur.com called “7 Actions to Take After Incorporating Your Business.” The article raises important topics to consider and delve into more deeply with the advice of your attorney and advisors.

7 Actions to Take After Incorporating Your Business

By Nellie Akalp

October 16, 2015

Much has been written about incorporating a new business, including advice on how to incorporate and what business structure to pick. However, I have found that new business owners can have just as many questions after incorporating or forming a limited liability company (LLC).

As you can imagine, there are some essential differences between running a corporation and running a sole proprietorship, and it’s important to get all your legal ducks in a row as early as possible.

If you have recently incorporated or formed an LLC, here are seven items to check off your list.

Get an Employer Identification Number (EIN) from the IRS.

A corporation or LLC is a separate entity and needs its own EIN from the IRS. This is true whether you plan on hiring any employees or not. The EIN, much like a Social Security Number for individuals, is how the IRS tracks your business’s activities. This should be one of your first steps after forming an LLC. Without an EIN, you won’t be able to open a bank account for your business or file your business’s tax returns.

Tip: If you already had an EIN for your business when it was operating as a sole proprietorship or partnership, you’ll need to get a new ID number for your corporation. You can’t transfer the number from one business entity to another.

Apply for your business licenses.

Forming a corporation or LLC forms the legal foundation for your business — it’s what turns your business into a legal entity. But you still need to get a business license in order to legally operate your business. Contact your local county office or city hall to find out what kinds of permits and licenses are necessary for your business type. Failure to do so can result in fines or you can even be forced to shut down your business altogether.

Meet with a tax adviser.

While this step isn’t mandatory, it’s a good idea. A brief meeting with a tax adviser can give you valuable insight into how you should file your taxes as a corporation or LLC. You can discuss whether you should elect S Corporation tax treatment from the IRS as well as what additional deductions are now available to you.

Open a business bank account.

After you have an EIN, you can open a bank account for your business. This allows you to accept checks and payments in your business’s name. In addition, you’re legally required to keep your personal and business finances separated once you incorporate or form an LLC. If you already had a business bank account for your sole proprietorship, you will need to close that account and open a new bank account under the new corporation.

At this point, it may also be a good idea to open a credit card for your business. This helps streamline your record keeping for business expenses, as well as helps start building credit history for your business.

File a Doing Business As (DBA).

Most businesses operate under several variations of their official company name. In order to legally do this, you need to file a DBA to notify the public that you’re operating under these names. For example, let’s say your official company name is “Example Company, Inc.” but you usually use a less formal name like “Example Company.” You’ll need to file a DBA for “Example Company.” One tip: Don’t file for a DBA until you have formed your corporation or LLC so the DBAs are under the corporation.

Protect your name with a trademark.

When you create a corporation or LLC, your name is protected in your state (or more specifically, no other business can file as a corporation or LLC in the same state). For some businesses, this is enough brand protection. Others choose to register a trademark for their company name in order to legally protect it in all 50 states.

Understand what you need to do to stay compliant.

One of the chief reasons to incorporate or form an LLC is to limit your personal liability. However, if you fail to keep your business in good standing, then you can lose this liability protection. Make sure you understand exactly what’s needed to keep your business compliant each year. Typically, this involves filing an annual report with your state each year, keeping up with your business federal and state taxes, and keeping your personal and business finances separate. Corporations will also need to hold an annual shareholder’s meeting.

Forming an LLC or corporation is the important first step to formalizing your new business. Best wishes on your new venture, and don’t forget to follow up with your other legal obligations. They’re simple steps and will keep your business legal and protected for years to come.

http://www.entrepreneur.com/article/251730

Making the First Offer in Negotiations: Should You or Shouldn’t You?

Posted: October 21st, 2015

By: Joe Campolo, Esq. email

Tags: negotiation

Conventional wisdom cautions that deal makers who make the first offer in a negotiation run the risk of showing their cards too soon, leaving their position and goals open to exploitation. Proponents of the wait-it-out approach believe that hearing from the other side first gives you important clues about your adversary’s position that you can use to steer the negotiation your way. However, recent research suggests that the “anchoring effect” of the first number presented in a negotiation can play a major role in the direction the negotiation takes and can therefore give you a major advantage. As explained in a recent article by Katie Shonk of the Harvard Law School Program on Negotiation, there’s no one-size-fits-all approach to deciding whether to throw out the first number. Rather, in deciding whether to offer it up or wait it out, you should consider your own knowledge of the “zone of possible agreement” (“ZOPA,” which is the range of outcomes each side might agree to) and your assessment of your adversary’s knowledge of the ZOPA.

When to Make the First Offer in Negotiation

Knowledge of the anchoring effect can steer deal making in the right direction

By Katie Shonk

October 8, 2015

In deal making, a certain question often looms large: Should you or shouldn’t you make the first offer?

Traditionally, negotiation experts advised us to sit tight and wait for the other side to float the first number. This advice is grounded in the fact that the other party’s offer may shed light on his goals and alternatives and better equip you to meet them. Yet more recent negotiation research on the anchoring effect has added nuance to the conventional wisdom about when to make the first offer in negotiation.

When engaged in claiming value in negotiation, our perceptions of a particular offer’s value are significantly influenced by any relevant number, or anchor, that is introduced. Especially when ambiguity and uncertainty are high, the first offer that a party puts forth will have a strong anchoring effect on the negotiation that follows. Even when we know a particular anchor should not affect our judgment, we have difficulty resisting its influence.

In their classic demonstration of the anchoring effect from the 1970s, psychologists Amos Tversky and Daniel Kahneman asked study participants to estimate the percentage of African countries that belong to the United Nations. Each participant was given a random number, determined by the spin of a roulette wheel, as a starting point. They were then asked to guess whether the actual quantity fell above or below that random value and make their best estimate of that actual quantity. Despite the fact that the participants knew their starting point was completely arbitrary, it significantly affected their estimates. Even when the researchers paid participants for their accuracy, the anchoring effect continued to powerfully affect their judgments.

Even experts who have access to ample data can fall victim to the anchoring effect in negotiation and deal making. In one research study, professors Greg Northcraft (University of Illinois) and Margaret Neale (Stanford University) provided real-estate agents with a great deal of information about a house that was for sale. The agents also toured the house and were given data about comparable properties. The agents were given randomly chosen list prices—in essence, the seller’s first offer—for the house ranging from $119,000 to $149,000. The agents then were asked to name an appropriate list price for the house, estimate the house’s appraisal value, state how much a buyer should reasonably pay for the house, and name the lowest offer they would accept for the house if they were the seller.

The agents insisted that the random list price they were given did not influence their evaluations, yet their responses suggested that the anchoring effect came into play: Agents who were given a higher list price believed the house was worth more than did agents who were given a lower list price.

Research on the anchoring effect suggests that the party who makes the first offer in a negotiation can gain a powerful advantage by steering talks in her favor. But that doesn’t mean that it’s always wise to make the first offer, as the anchoring effect could work against you if you choose the wrong anchor. Instead, the decision of whether to “drop an anchor” should be based primarily on two factors: your knowledge of the zone of possible agreement, or ZOPA—the range of possible outcomes that each side will find acceptable—and your assessment of the other side’s knowledge of the ZOPA.

When it seems likely that the other party is better informed about the parameters of the ZOPA than you are, you will have trouble putting the anchoring effect to use. In the typical job negotiation, for example, the interviewer knows more about the possible salary range than the job candidate does. Before dropping an anchor in such situations, you should arm yourself with as much information as you can.

By contrast, when both sides have a strong sense of the ZOPA, the anchoring effect will be difficult to deploy. Take the case of a long-standing relationship between a supplier and customer with open books. Because each side is already aware of the other side’s profit margins, negotiators will be more resistant to being anchored.

What about when neither side knows much about the ZOPA? In this case, you risk being either too concessionary or too demanding. Dropping the first anchor can lead to dissatisfaction when you find yourself closing the deal in such situations.

Finally, when you know more about the ZOPA than the other party does, as when you are offering or selling an asset (such as a job, a house, or a car) about which you know a great deal, you should take advantage of your superior knowledge and the anchoring effect, and make an aggressive first offer with confidence.

http://www.pon.harvard.edu/daily/negotiation-skills-daily/when-to-make-the-first-offer-in-negotiation/

Fiduciaries You May Not Want

Posted: October 20th, 2015

By: Martin Glass, Esq. email

Tags: elder law, estate planning

In past articles I’ve spoken about how to appoint the proper fiduciaries (executors, trustees, guardians, etc.). But what about those people that you don’t want?

Most of my clients don’t realize that you can “dis-appoint” someone in your documents. You actually have the ability to add almost any language you want in your documents, whether it’s in your Will or in your trust. You can use strong language, such as that a specific person should not serve in any circumstances. Or you can use weaker language, writing that you encourage the court to consider your other nominees, and not to consider the person you feel is undesirable.

Why would someone want to do that? Sometimes it’s a fairly objective reason. If your cousin takes his shoes off because he needs to use his fingers and toes to add larger numbers, he’s probably not the guy to handle your estate or maintain a trust for your children.

In other words, a person may not have the right qualifications. Someone may appear to be a good candidate, such as having an accounting or financial background. But he or she may not have the wisdom, judgment, or temperament to serve properly. While some estates require transactional skills to deal with real estate or business assets, other estates require interpersonal skills to meet the needs of beneficiaries who are minors, are elderly, or have capacity issues.

A second reason is that the person may have disqualifications. These may not be a lack of skills, but more negative or undesirable traits like gambling, drug or alcohol abuse, a criminal record, or other things that may not be so well known. So, without explicitly disclosing the issue, you can simply say in your estate planning documents that this is a person you do not want to be considered, and keep the matter private.

A third reason, distinct from skills and/or negative traits, is more philosophical in nature. When you’re talking about a fiduciary such as a guardian or a trustee of a child’s trust, you want to make sure that he or she is on the same page as you about things such as child rearing, secondary education, religion, or even cultural traditions.

These are things that come up from time to time. You may feel a person’s philosophy is different from yours, and therefore you don’t want him or her to serve. You might love the person and want him or her involved, but serving in a role of authority is a different matter. Once you’re gone, you’re going to have to trust the person to follow your instructions. Just remember, simply because he’s your oldest son doesn’t necessarily make him the right choice.

Medicare Providers: Don’t Let Identity Theft Cost You Money!

Posted: October 20th, 2015

Tags: healthcare

Medicare providers face an alphabet soup of entities seeking to recover “overpayments” from them on behalf of Medicare. Commonly referred to as Recovery Audit Contractors (“RACs”), these entities include Zone Program Integrity Contractors (“ZPICs”), and they have an aggressive mandate to recover Medicare “overpayments” to providers.

We recently represented a physician from whom a RAC sought $850,000 in overpayments for services billed to Medicare. The liability arose because our client did not have any documentation to support the $850,000 in billed services. However, our client did not have the supporting documentation because she never performed or billed the services! It turns out that the client’s prior employer stole her Medicare provider “identity” and billed the services for himself.

Fortunately, CMS started a Victimized Provider Project a couple of years ago to address these situations. We performed our own investigation and confirmed that our client’s former employer pled guilty to conspiracy to commit healthcare fraud in federal court, and we obtained sufficient information from the court records to document this theft.

After formally submitting a request for assistance from the Victimized Provider Project, CMS investigated and agreed with our assertion that our client’s identity was stolen. Happily, CMS formally announced that it would not hold our client liable for the $850,000 in overpayments and would cease all collection efforts.

CMS recommends that providers take the following steps to prevent or spot identity theft:

Actively manage enrollment information with payors. Always keep reimbursement banking information current, and update payors when opening, closing, or moving practice locations.
Monitor Billing and Compliance Processes. Review OIG’s guidance at oig.hhs.gov/compliance/compliance-guidance/index.asp. Always be aware of billings in your name. Review entities to which you have reassigned billing privileges. Compare remittances with medical records.
Control Unique Medical Identifiers. Avoid giving your identifiers to prospective employers before performing due diligence. Train staff on appropriate use and distribution of your medical identifiers, including when not to distribute them. Control prescription pads.
Engage Patients. Encourage patients to request and review their medical bills and have patients report any irregularities they see.

DWI – To Blow or Not to Blow?

Posted: October 20th, 2015

Tags: criminal defense

Lately, it seems not a weekend goes by without another news story about a DWI crash into a house, or tragically, a fatality. With such horrible trends continuing, law enforcement is sure to step up DWI prevention through checkpoints and aggressive policing.

As a DWI defense attorney, I am always asked: “If I am arrested, should I blow or refuse?” This seemingly simple question is actually rather complex. Many factors affect whether taking the chemical breath test is a good or bad idea. For example, there may have been an accident involving a fatality or serious injury; the driver may have a commercial driver’s license who drives for a living; the person may have a prior DWI and thus will face a felony DWI charge; the local District Attorney’s Office may have plea bargaining policies where no reduction is offered if a person refuses the test, or it may not offer reductions for readings above a certain level.

With all of these considerations in play, whether to take the test is in many cases a matter of opinion. Here, I will share my opinions, while acknowledging that others may disagree for perfectly valid reasons.

For any refusal, a driver will face immediate revocation of his driver’s license for at least one year. This is a civil sanction imposed by the DMV, and it applies regardless of whether a person is convicted or acquitted of the DWI charge in criminal court. For commercial drivers, the revocation period is a minimum of 18 months, even if the person was driving a personal vehicle. If a commercial driver is a repeat offender, meaning he has been convicted of any alcohol-related offense, or he has refused to take a chemical test before, he will be permanently disqualified from operating a commercial motor vehicle.

For DWI cases involving an accident with serious physical injury or death, it is usually better to refuse the test. The civil sanctions imposed by the DMV are minor compared to the potential criminal penalties attached to such cases.

For felony DWI cases, it is also usually better to refuse the test. The civil sanctions will normally not exceed the criminal sanctions against a driver’s license. Furthermore, the DMV refusal hearing may provide vital discovery prior to indictment that may result in obtaining a better plea offer. If the case goes to trial, it is harder for the prosecution to prove that a defendant’s blood alcohol content (“BAC”) was above .08 if the defendant refused to take the test.

For misdemeanor DWI cases, if the person needs to drive to earn a living, it is usually better to take the test. The civil sanctions against commercial drivers for refusing will result in longer suspension periods than the criminal sanctions imposed.

For misdemeanor DWI cases that don’t involve commercial drivers, it is usually preferable to refuse the test, unless the local District Attorney has plea policies in place that penalize those who refuse.

These recommendations are general rules of thumb and are subjective. Unfortunately, these decisions usually take place in the middle of the night and under stress. The best decision you can make is to stay off the road after drinking.