March 10, 2015
(http://www.corpcounsel.com/id=1202720164594/That-DashedOff-Email-Can-Turn-Into-a-Smoking-Gun#ixzz3U5LNLXl7)
By Marlisse Silver Sweeney, Corporate Counsel
What’s worse than a personal email being published on the front page of your local newspaper for all to see? How about that email being the smoking gun in a lawsuit, which, as Jason Rodriguez of Higler Allen & Lautin points out, recently happened in a decision out of the U.S. Court of Appeals for the Fifth Circuit.
The case concerns JPMorgan Chase & Co.’s takeover of Washington Mutual Inc. after its 2008 collapse, says Rodriguez. At issue was whether there was mutual termination between a WaMu branch and a developer who had been contracted, pretakeover, to acquire land, build the WaMu location and rent it back to the bank. Rodriguez says that the case and appeal hinged on a single email sent by an executive of the developer to Chase asking it to reject the lease quickly so losses could be cut. The developer believed rejection was the only outcome, based on the Federal Deposit Insurance Corp.’s representations.
“In the 5th Circuit opinion, the Court of Appeals quotes the email directly five times in support of its holding that there was not mutual termination. … There is no other evidence directly cited by the 5th Circuit to support its holding,” notes Rodriguez. He says there is no legalese in the email, and in some parts the proper legal terms were not even used. Nevertheless, “this post is to illustrate that even the most mundane of emails may win or lose a lawsuit you have no inclination will be filed,” he says.
