Any supplement to or modification of any provision of this Agreement must be in writing and signed by authorized representatives of both parties.
The clause above is a fairly standard term found in virtually every commercial contract, the essence of which is that only a signed writing can modify the terms of an executed agreement. However, in Stevens v. Publicis, S.A., the New York appellate court has expanded what constitutes just such a “signed writing” to include email correspondence between the parties.
Following the acquisition of his company by another, an executive of the acquired company entered into a new employment agreement with the parent company. Subsequently, poor performance by the acquired company prompted discussion to terminate the executive’s employment. A senior representative of the parent company outlined, in a series of e-mails, proposed changes to the executive’s responsibilities. Although the executive agreed to these changed responsibilities in several e-mails, his employment was shortly thereafter terminated.
Affirming the lower court’s decision finding for the executive in his action for breach of contract, the appellate court held that the e-mail between the executive and the parent company’s representative (i) constituted “signed writings” within the meaning of the statute of frauds, since their names at the end of the e-mail signified their intent to authenticate the contents; and (ii) satisfied the employment agreement’s requirement that any modification be signed by all parties.
