Negotiating Business Agreements via Email, Text and Other Electronic Communications

Avoiding Inadvertent Contracts; Navigating Issues of Enforceability, Authentication of E-Signatures, and Admissibility

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, October 30, 2018

Recorded event now available

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Program Materials

This CLE webinar will examine recent trends and case law developments affecting businesses negotiating agreement terms via email, text messaging or other forms of electronic communication. The panel will discuss steps counsel should take to avoid inadvertently forming an e-contract and strategies to minimize liability exposure in the event electronic communications are determined to create an enforceable contract. The panel will also examine legal and practical issues regarding the authentication of electronic signatures and the admissibility of electronic communications and e-signatures in breach of contract litigation.

Description

Emails and text messages are now standard forms of business communication and are frequently the means by which corporate counsel outline, negotiate and revise the terms and conditions of transactions. In recent years, several cases have centered on whether emailed negotiations are enforceable contracts, with courts across the country coming down on both sides of the issue.

Courts generally consider the circumstances surrounding the electronic communications as well as the language used in the communications to determine whether the parties intended to create an electronic contract. There are several best practices business counsel should implement when negotiating agreement terms via email or text to avoid the inadvertent creation of an electronic contract, including avoiding using formal contract terms such as “offer” and “acceptance” and explicitly disclaiming the creation of a contract in the electronic communications.

To minimize the risk of liability if a court finds that an enforceable contract exists, counsel should clarify any ambiguities in their communications, outline specific conditions or contingencies surrounding performance under the agreement, and refrain from performing any of the discussed terms until there is a written contract in place.

If breach of contract litigation ensues surrounding an electronic contract, counsel must be able to understand and address issues related to contract enforceability as well as the authentication and admissibility of electronic communications and any e-signatures.

Listen as our authoritative panel discusses the legal and practical issues associated with negotiating business agreement terms via email, text messaging, or other forms of electronic communication, including questions of enforceability, authentication and admissibility.

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Outline

  1. Current trends and recent case law developments
  2. Avoiding the inadvertent creation of an electronic contract
  3. Minimizing liability risks when negotiating via email, text or other electronic communications
  4. Legal issues with electronic signatures
  5. Addressing enforceability, authentication, admissibility in breach of contract disputes

Benefits

The panel will review these and other noteworthy issues:

  • What lessons can business counsel glean from court rulings in cases alleging the creation of electronic contracts based on email communications?
  • What are the legal issues surrounding electronic signatures?
  • What enforceability, authentication and admissibility challenges do counsel face in breach of contract actions involving alleged electronic contracts?

Faculty

Anderson, Tara
Tara J. Anderson
Atty
TJA Business Law

Ms. Anderson works with privately-held companies and nonprofits, including a number of technology and software...  |  Read More

Farnsworth, Jon
Jon L. Farnsworth

Shareholder
Felhaber Larson

Mr. Farnsworth is an outside general counsel to privately held companies and established non-profits. He focuses on...  |  Read More

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