Harvey Keitel, ETrade, and Meeting of the Minds
A New York judge tossed out Harvey Keitel’s lawsuit against ETrade Financial Corp., finding that the online brokerage never entered into a legally binding agreement to pay the actor to star in television commercials.
Keitel argued the parties had a “meeting of the minds” but the Court disagreed.
Keitel was hoping for a different legal outcome after his initial complaint was dismissed in March 2016. In both instances, the Court ruled that the initial term sheet, which stated that the parties would enter into a subsequent written agreement, was not an enforceable contract.
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Judge Rules “No Contract Between the Parties”
Harvey Keitel is an Oscar-nominated actor who has starred in Pulp Fiction, Reservoir Dogs, Taxi Driver, and many other movies.
According to a lawsuit filed in June 2015, ETrade made Keitel a “firm and binding offer” in the form of a term sheet to pay him $1.5 million for a celebrity spokesman advertising campaign. After Keitel accepted, ETrade reneged, offered the gig to another actor, and proposed giving Keitel a $150,000 “kill fee,” the lawsuit stated.
In March 2016, a New York judge threw out the lawsuit, saying a term sheet isn’t enforceable until the parties reach a written agreement. Keitel appealed the decision, but again his case was dismissed.
“It is undisputed that the term sheet provides for a subsequent written agreement,” wrote the judge. “Thus, absent a signed writing providing for material terms as mandated by the term sheet, there is no contract between the parties.”
Keitel argued that the parties had a “meeting of the minds” on terms such as hours, compensation, and production that was sufficient to create a binding contract. He also argued that in the entertainment industry parties often pursue non-executed deal memos. The Court was not persuaded by these arguments, saying there was insufficient evidence to establish a meeting of the minds, and that Hollywood culture was not a substitute for New York laws.
Meeting of the Minds and Florida Contract Law
The Keitel-ETrade contract dispute shows the importance of a “meeting of the minds” to the establishment of a contract.
Meeting of the minds occurs when there is an offer and acceptance of the exchange of “consideration” between the contracting parties. Consideration is something of value, such as an act, goods, services, or money.
Keitel submitted as evidence of a meeting of the minds internal emails between ETrade’s agents, but the judge said the emails were insufficient to establish a meeting of the minds because Keitel and his agent were not privy to the emails.
An agreement to agree is not the same as a contract.
In Florida, to have a contract you need a meeting of the minds on material terms. Agreement on non-material terms is not necessary.
Meeting of the minds does not require a formal written contract. Emails, text messages, or even a verbal handshake agreement could be sufficient to establish a meeting of the minds.
However, an agreement to agree—such as a term sheet that states the parties will enter into a subsequent written agreement—is not a contract.
The Florida Supreme Court has ruled that, “The parties must mutually assent to each of the terms and conditions of both the offer and the acceptance in order to be a meeting of the minds and the closing of a lawful and binding contract.”
Contingency-Fee Contract Attorneys
Many factors go into determining whether an agreement between parties is an enforceable contract. If you are not sure whether you have a legally binding agreement, whether because the agreement is an informal writing or even a verbal agreement, you should consult a Florida contract attorney to learn your rights.
The Business Trial Group represents clients in contract disputes on a contingency-fee basis. Our unique fee model allows contract cases to be decided on the merits and prevents wealthier parties from using high hourly attorneys’ fees as leverage against their opponent.
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