In an action for breach of contract, Pulp Fiction and Reservoir Dogs star Harvey Keitel sued E*Trade based upon a Term Sheet entered into between Keitel and advertising agency Ogilvey & Mather NY (“Ogilvey”) for the actor to do three commercials.   The case, Keitel v E*Trade Fin. Corp. (Sup Ct, NY County, Apr. 17, 2017) (Ramos, J.),  was filed in 2015 after E*Trade decided not to move forward with Keitel in its advertising campaign.

After the initial motion to dismiss was granted by the Court in March 2016, Keitel was granted leave to amend based upon additional facts learned through discovery. In his amended complaint, Keitel alleged that the totality of circumstances – including exchanges of emails and internal communications between E*Trade and Ogilvey — demonstrated an intent to be bound.

In ruling on E*Trade’s motion to dismiss the amended complaint, Justice Ramos disagreed with Keitel. In granting the motion, the Court noted that the Term Sheet states clearly that, “neither party shall be bound until the parties execute a more formal written agreement”, which was never done.  Since the Court found the Term Sheet unambiguous, resort to extrinsic evidence was unnecessary.  Even looking at the proffered extrinsic evidence, however, the Court observed that there was simply no “meeting of the minds”.  Justice Ramos also noted that this was not like PMJ Capital Corp. v PAF Capital, LLC, where there were negotiations and a finalized term sheet “ready for execution.” Finally, E*Trade’s “kill fees” of $150,000 was considered inadmissible evidence of liability under CPLR 4547.

Query whether, as pleaded in the amended complaint, were the subsequent communications between the parties enough to effectuate a waiver of the “neither party shall be bound” clause?   For a good discussion on when these “neither party shall be bound” clauses should be ignored, see Justice McGuire’s dissenting 0pinion in Jordan Panel Sys. Corp. Turner Constr. Co.

Following the decision, Keitel filed a Notice of Appeal on May 2, so stay tuned for the Appellate ruling.