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As e-mail continues to impact the modern landscape of litigation, it’s important to consider the effect of common e-mail communications between counsel on the enforceability of settlement agreements. Once again, the apparent informality of e-mail is a potential trap for the unwary. Two recent decisions with opposite results, one from the Appellate Division, 2nd Department, and one from the U.S. District Court for the Eastern District of New York, in Central Islip, N.Y., are instructive.

In both cases, the party seeking to enforce an alleged settlement agreement claimed that e-mail sent by counsel represented a binding settlement. The cases are not only enlightening for counsel communicating by e-mail, but highlight the distinctly different manner in which the state and federal courts in New York analyze whether an enforceable settlement has been consummated.

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