American Contract Law for a Global Age, 2017a

with distribution. The parties ultimately fell out in an acrimonious dispute. Although
the agreement with Terny contained a forum selection clause requiring all litigation
among the parties to be brought in Massachusetts, Confederate ultimately sued
Terny for claimed breach of contract in Alabama. Terny moved to transfer the
litigation to Massachusetts.]
On December 13, 2010, Terny, through his counsel Laurence McDuff, filed a
Motion to Enforce Forum Section Clause seeking to have the Alabama case dismissed,
with leave to have Confederate refile it in Massachusetts. On December 15, 2010 the
motion was scheduled for oral argument on January 21, 2011. Meanwhile, counsel
for both parties had begun to explore a possible settlement. In a December 9, 2010
email, Chance Turner (attorney for Confederate) proposed the following:
We feel a reasonable solution for all parties is the mutual release of all
existing claims, the return of the consulting shares (505,000) to the
corporation, and one hundred and fifty thousand dollars for fees,
expenses and compensatory damages. I believe my client would be
interested in accepting all corporate shares now in your client’s
possession in lieu of a cash payment. Please respond to this offer within
two weeks.
Laurence McDuff (attorney for Terny) replied six days later, on December 15,
with a “counteroffer” in which Terny “will agree to return the 505,000 shares, and
execute mutual releases, but he is not willing to pay the monetary component of your
offer.” He concluded with “[h]opefully we can work something out along these lines.”
Attorney Turner responded one week later, on December 22, 2010. In his email he
wrote:
I spoke with my client regarding your counteroffer. In the interest of
settlement, we can reduce the monetary component to one hundred
thousand. Let me know what your client thinks.
Attorney McDuff replied six days later, on December 28. In his email he wrote:
Francois still is willing to return the 505,000 shares and execute mutual
releases, but he declines to pay you any monetary component.
Attorney Turner did not reply.
The litigation proceeded. Oral argument was heard on January 21, 2011 in the
Alabama District Court. Confederate opposed the motion to enforce the forum
selection clause. At the hearing, the court denied the request that the action be
dismissed, but granted the alternative relief that the case be transferred to
Massachusetts. This was confirmed by a written order on January 24, 2011.
On January 24, 2011, nearly four weeks after Attorney McDuff’s last email
regarding a possible settlement, Attorney Turner sent Attorney McDuff the following
email:
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86 CHAPTER II: CONTRACT FORMATION