The Sixth Circuit will soon have an opportunity to answer that question in Remark v Adell Broadcasting. In this copyright dispute that was recently appealed to the Sixth Circuit, counsel between the parties exchanged a number of e-mails regarding a potential settlement. After new counsel for one of the parties was retained, that party rejected the notion that there was a settlement, and litigation soon followed. The key issue in the case was whether an enforceable settlement agreement had been reached. The district court scrutinized the communications between counsel and determined that they constituted the basic elements of contract formation, including offer and acceptance, as well as an agreement on the material terms. The fact that the e-mail communications had not resulted in a written settlement agreement did not give the court pause in enforcing the settlement. This case may provide the Sixth Circuit with an opportunity to offer clarification as to when settlements of this nature are consumated (it is, of course, not unusual for counsel to negotiate settlements via email). It also follows on the heels of a recent decision by the Sixth Circuit concerning a settlement agreement reached before a judge in mediation. These two cases will likely provide parties with guidance on important points to consider in the conduct of settlement negotiations.
