Etrade Keitel

8/20/2019 Etrade Keitel

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK (COMMERCIAL DIVISION)

HARVEY KEITEL,

Plaintiff,

v.

E*TRADE FINANCIAL CORP.,

Defendant.

Oral Argument Requested

Index No. 652220/2015

Justice Charles E. Ramos

MEMORANDUM OF LAW IN SUPPORT OF

E*TRADE FINANCIAL CORPORATION’S MOTION TO DISMISS

QUINN EMANUEL URQUHART &SULLIVAN, LLP

Faith E. GayCorey WorcesterRenita Sharma51 Madison Avenue, 22nd FloorNew York, NY 10010Tel.: (212) 849-7000

Fax: (212) 849-7100

Attorneys for E*TRADE Financial Corp.

ILED: NEW YORK COUNTY CLERK 08/12/2015 11:53 PM INDEX NO. 652220/

YSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/12/


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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .....................................................................................................1

BACKGROUND .............................................................................................................................3

ARGUMENT ...................................................................................................................................7

I. THE TERM SHEET’S EXPLICIT STATEMENT THAT “NEITHER PARTYSHALL BE BOUND” IS DISPOSITIVE OF PLAINTIFF’S CLAIM OF A“BINDING AND ENFORCEABLE CONTRACT.” ........................................................11

II. NUMEROUS OTHER PROVISIONS OF THE TERM SHEET ANDSURROUNDING DOCUMENTS INDICATE THAT THERE WAS NO FINAL

MEETING OF THE MINDS. ............................................................................................15

III.

OCTAGON’S USE OF THE PHRASE “FIRM AND BINDING” CANNOTNEGATE THE EFFECT OF THE TERM SHEET’S CLEAR LANGUAGE. .................18

IV. THE PLAINTIFF RESPONDED TO E*TRADE’S TERM SHEET WITHMATERIALLY DIFFERENT CONDITIONS; HIS RESPONSECONSTITUTED A COUNTER-OFFER THAT E*TRADE DID NOT ACCEPT. .........20

CONCLUSION ..............................................................................................................................22


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TABLE OF AUTHORITIES

Page

Cases

150 Broadway N.Y. Assocs. L.P. v. Bodner ,14 AD3d 1 [1st Dept 2004] ........................................................................................................9

Aksman v. Xiongwei Ju,21 AD3d 260 [1st Dept 2005] ......................................................................................14, 15, 16

Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce,70 AD3d 423 [1st Dept 2010] .......................................................................................... passim

Cent. Fed. Sav., F.S.B. v. Nat’l Westminster Bank, U.S.A.,176 AD2d 131 [1st Dept 1991] ............................................................................................8, 20

Century-Maxim Const. Corp. v. One Bryant Park, LLC ,23 Misc. 3d 1120(A), 886 N.Y.S.2d 70 [Sup. Ct. Westchester Cty. 2009] ...............................9

Chambers v. Weinstein,44 Misc. 3d 1224(A), 997 N.Y.S.2d 668 [N.Y. Sup. Ct. 2014].................................................9

DSA Realty Servs., LLC v. Marcus & Millichap Real Estate Inv. Servs. of New York, Inc.,128 AD3d 587 [1st Dept 2015] ..................................................................................................9

E. Consol. Props,., Inc. v. Morrie Golick Living Trust ,83 AD3d 534 [1st Dept 2011] ..................................................................................................21

Fiala v. Metro. Life Ins. Co.,6 AD3d 320 [1st Dept 2004] ......................................................................................................7

Flushing Expo, Inc. v. New World Mall, LLC ,116 AD3d 826 [2d Dept 2014] .................................................................................................8

Fontanetta v. Doe,73 AD3d 78 [2d Dept 2010] ..................................................................................................1, 8

Franklin v. Winard ,199 AD2d 220 [1st Dept 1993] ............................................................................................7, 10

Gen. Motors Acceptance Corp. v. Clifton-Fine Cent. Sch. Dist.,

85 N.Y.2d 232 [1995] ..............................................................................................................19

Gephardt v. Morgan Guar. Trust Co. of New York ,191 AD2d 229 [1st Dept 1993] ..................................................................................................7

Goshen v. Mutual Life Ins. Co. of New York ,98 N.Y.2d 314 [2002] ................................................................................................................8


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Guggenheim Corporate Funding, LLC v. Access.1 Commc’ns Corp.-NY 26 Misc. 3d 1210(A), 906 N.Y.S.2d 780 (Sup. Ct. 2009) ...............................................7, 8, 15

Jordan Panel Sys., Corp. v. Turner Const. Co.,45 AD3d 165 [1st Dept 2007] ......................................................................................13, 14, 15

King v. King,208 AD2d 1143 [3d Dept 1994] ..............................................................................................22

Kolchins v. Evolution Markets, Inc.,128 AD3d 47 [1st Dept 2015] ....................................................................................................9

Longo v. Shore & Reich, Ltd.,25 F.3d 94 (2d Cir. 1994).........................................................................................................19

In re Lyondell Chem. Co.,491 B.R. 41 (Bankr. S.D.N.Y. 2013) aff’d, 505 B.R. 409 (S.D.N.Y. 2014) .....................14, 15

Mendoza v. Akerman Senterfitt LLP,

128 AD3d 480 [1st Dept 2015] ..................................................................................................9

Naturopathic Labs. Int’l, Inc. v. SSL Americas, Inc.,18 AD3d 404 [1st Dept 2005] ..................................................................................................19

Peter F. Gaito Architecture, LLC v. Simone Dev. Corp.,46 AD3d 530 [2d Dept. 2007] .................................................................................................10

Prospect St. Ventures I, LLC v. Eclipsys Solutions Corp.,23 AD3d 213 [1st Dept 2005] .......................................................................................... passim

Roer v. Cross Cnty. Med. Ctr. Corp.,83 AD2d 861 [2d Dept 1981] ..................................................................................................22

Scheck v. Francis, 26 N.Y.2d 466 [1970] ..............................................................................................................12

Shah v. Metro. Life Ins. Co.,No. 108887/00, 2003 WL 728869 (N.Y. Sup. Ct. Feb. 21, 2003) .............................................7

Shehab v. Chas. H. Sells, Inc.,No. 04 CIV 01534, 2006 WL 938715 (S.D.N.Y. Mar. 29, 2006) ...........................................20

Standard Chartered Bank v. D. Chabbot, Inc.,178 AD2d 112 [1st Dept 1991] ..................................................................................................7

StarVest Partners II, L.P. v. Emportal, Inc.,101 AD3d 610 [1st Dept 2012] ....................................................................................12, 13, 15

Thor Props., LLC v. Willspring Holdings LLC ,118 AD3d 505 [1st Dept 2014] .........................................................................................20, 21

Vacold LLC v. Cerami,545 F.3d 114 (2d Cir. 2008).......................................................................................................8


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Wachtel v. Nat’l R.R. Passenger Corp.,No. 11 CIV. 613 PAC, 2012 WL 292352 (S.D.N.Y. Jan. 30, 2012) .......................................20

Webster Estate of Webster v. State of New York ,No. M-65923, 2003 WL 728780 (N.Y. Ct. Cl. Jan. 30, 2003) ..............................................8, 9

Woodward v. Tan Holding Corp.,32 AD3d 467 [2d Dept 2006] ..................................................................................................21

Rules / Statutes

N.Y. C.P.L.R. § 3211(a)(1) ..................................................................................................1, 7, 8, 9

N.Y. C.P.L.R. § 3211(a)(7) ..........................................................................................................1, 9


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Defendant E*TRADE Financial Corporation (“E*TRADE”) respectfully submits this

memorandum of law in support of its motion to dismiss with prejudice plaintiff Harvey Keitel’s

claim for breach of contract, pursuant to CPLR 3211(a)(1) and 3211(a)(7).

PRELIMINARY STATEMENT

This lawsuit concerns Mr. Keitel’s allegations that E*TRADE, in a space of less than

seventeen hours, formed and then breached a purportedly “firm and binding” contract for

Mr. Keitel to appear “in a series of three commercials” (Cmpl. ¶ 4) at a price of $1.5 million.

Even a cursory glance at the purported contract itself and at the emails exchanged between the

parties’ agents (all of which are repeatedly quoted and referenced in the Complaint) reveals that

no such breach occurred because no such contract existed. Tellingly, Plaintiff relied on and

partially quoted—but failed to attach—the alleged contract and the correspondence to his

Complaint. In such circumstances, the Court may properly consider both on a motion to dismiss

because having relied on, quoted from, and incorporated the documents into the Complaint, the

Plaintiff has conceded that the documents are “essentially undeniable,” Fontanetta v. Doe, 73

AD3d 78, 84-85 [2d Dept 2010], and constitute “documentary evidence” for the purposes of a

motion under CPLR 3211(a)(1).

First , the Complaint should be dismissed because the purported contract at the heart of

this dispute was not, in fact, a contract at all—let alone a binding one. On the contrary, in plain

English, the purported contract provides that “neither party shall be bound until the parties

execute a more formal written agreement.” (Sharma Aff., Ex. A, the “Term Sheet,” at 3

(emphasis added).) In light of the Term Sheet’s plain text, Mr. Keitel’s interpretation of it as a

fully formed and binding contract (Cmpl. ¶ 21-25) is not tenable.


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Second , numerous other provisions in the Term Sheet demonstrate that it was not a final

agreement and that there was no final “meeting of the minds.” For example, the Term Sheet was

not signed, contained blanks to be filled in later, and invited Mr. Keitel to acknowledge his

understanding of the “proposed negotiations” (Ex. A at 4) concerning a “proposed agreement”

(id. at 1) for his “potential participation” in E*TRADE’s advertising (id. at 3). It then concluded

by asking Mr. Keitel’s agent to be in contact to “discuss the project further.” ( Id. at 4.) Taken

together, the provisions of the Term Sheet make clear that it was an invitation to negotiate and

not a contract.

Third , Mr. Keitel’s claim for breach of contract depends almost entirely on the allegation

that the cover email from Ogilvy & Mather (Sharma Aff., Ex. B, “Cover Email”) stated that the

Term Sheet was a “firm and binding” offer. (Cmpl. ¶ 21-25.) The Complaint’s partial quote of

the Cover Email is, however, misleading. Following the fragment that Mr. Keitel quotes, the

Cover Email continues on to state that the offer was “ contingent upon the results of the

background check, and of course coming to terms on scripts, compensation, etc.” (Ex. B at 1

(emphasis added).) The expressly “contingent” nature of E*TRADE’s proposal belies any

suggestion that the Term Sheet was “binding” in the manner that Mr. Keitel alleges. Moreover,

as a matter of law, such language cannot negate the plain language of the Term Sheet itself to

create a binding contract where one would not otherwise exist.

Fourth, the Complaint also fails because the documentary evidence referenced in the

Complaint makes clear that Mr. Keitel did not accept the purported offer. Instead, Mr. Keitel’s

agent reported only that Mr. Keitel “has agreed to do the 3 commercials for E Trade.” (Sharma

Aff., Ex. C, Email from K. Sellars to M. Conti, Jan. 28, 2014.) Mr. Keitel’s purported

“acceptance” failed, however, because it is obvious on the face of the Term Sheet that the Term


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Sheet includes proposals for six commercials and several other issues.1 Mr. Keitel’s purported

acceptance also failed because his agent included proposed conditions that amounted to a

counteroffer. The additional terms included a suggestion that E*TRADE hire Oscar-winning

director Ridley Scott to direct the commercial, provide rehearsal time, and critically, give Mr.

Keitel’s agent information on logistics that could be “run . . . by” Mr. Keitel. That counter-offer

was never accepted by E*TRADE. (Ex. C.)

For each of these four, independent reasons, the Court should dismiss Mr. Keitel’s

Complaint in its entirety with prejudice.

BACKGROUND

E*TRADE is a financial services company that provides retail brokerage and related

services and products to both individual and institutional investors under the brand “E*TRADE

Financial.” In January 2014, E*TRADE sought to develop a series of television commercials to

further its brand. (Cmpl. ¶ 5.) Specifically, E*TRADE worked with global marketing firm The

Ogilvy Group, Inc., d/b/a Ogilvy & Mather NY (“Ogilvy”) to develop a concept for an

advertising campaign that would involve a celebrity spokesperson. (Cmpl. ¶ 5, 6.) Ogilvy, in

turn, retained Octagon First Call (“Octagon”), a celebrity acquisition and engagement specialist,

to contact possible spokespersons for E*TRADE’s new campaign. (Cmpl. ¶ 6.) E*TRADE’s

campaign was scheduled to begin shooting four weeks later, in mid-February. (Cmpl. ¶ 18.)

Because of the short time until production commenced, discussions between E*TRADE and

Ogilvy regarding the direction of the campaign were occurring at the same time as discussions

between Octagon and the agents of various potential spokespersons.

1 For example, in addition to the three television commercials, the Term Sheet included

requirements related to two radio commercials, banner ads, digital material, B-Roll, and anonline video advertisement, as well as provisions related to, inter alia, the financial terms of thedeal. (Ex. A at 1-2.)


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E*TRADE and Octagon considered several actors for the role, including Mr. Keitel.

(See, e.g., Cmpl. ¶ 8.) To gauge Mr. Keitel’s interest in working with E*TRADE, Octagon

reached out to his agent, Ms. Sellars, in late January of 2014. Ms. Sellars requested a firm and

binding offer to present to her client. (Cmpl. ¶¶ 17-19.)

Accordingly, at 7:15 p.m. EST on January 27, 2014, Octagon’s Maria Conti sent

Ms. Sellars the Cover Email which she said “attached . . . a firm and binding offer [to Keitel] . . .

contingent upon the results of the background check, and of course coming to terms on scripts,

compensation, etc.” (Ex. B at 1 (emphasis added).2) The attached Term Sheet was four pages

long and sent as an editable Microsoft Word document, not an Adobe Acrobat PDF, which Ms.

Sellars would have been unable to alter, mark up, or edit. It was not signed. (Ex. A at 43.) Nor

had it been placed on Ogilvy letterhead. ( Id. at 1.) Moreover, the Term Sheet contained a

signature block for an individual at Ogilvy but that person’s name and title had not yet been

provided. ( Id. at 4.) Further highlighting its provisional nature, the Term Sheet did not identify

the counterparty who would act for Mr. Keitel, stating only that it covered “a proposed

agreement between The Ogilvy Group, Inc. d/b/a Ogilvy & Mather NY (‘Agency’), on behalf of

its client, E*TRADE Financial Corporation (‘Client’), and __________ (‘Supplier’) f/s/o Harvey

Keitel (‘Artist’).” ( Id. at 1.)

The unsigned Term Sheet further stated E*TRADE’s understanding as to “[s]ome of the

principal terms of the proposed agreement,” such as the cost,4 term, number of production days,

2 The Cover Email is referenced in the Complaint in, at least, Paragraphs 21, 22, 23, 24,

25, 26, 27, 28, 36, and 37.3 The Term Sheet is referenced in the Complaint in, at least, Paragraphs 22, 24, 25, 26,

27, 36, and 37.

4 However, as E*TRADE’s agent noted in her Cover Email, the parties had yet to“com[e] to terms on . . . compensation, etc.” (Ex. B.)


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and E*TRADE’s rights to use the resulting materials. ( Id. at 1-2.) However, as its use of the

phrase “[s]ome of the principle terms” indicates, the Term Sheet was not intended to be

exhaustive of all the terms in a typical retention agreement, nor was it intended to be binding.

On the contrary, the Term Sheet stated:

This letter sets forth the general intent of the parties to discuss in good faith theterms and conditions of Artist’s potential participation in Client’s advertising,provided that neither party shall be bound until the parties execute a more

formal written agreement, which shall include terms and conditions standard foragreements of this type, including Client’s standard warranty, adjustment, forcemajeure, termination, ownership, morals clause, confidentiality andindemnification provisions, subject to good faith negotiations.

( Id. at 3-4 (emphasis added).) Consistent with E*TRADE’s understanding that the Term Sheet

contemplated further discussion between the parties, the Term Sheet closed by stating that “[i]f

the foregoing correctly sets forth [Ms. Sellars’] understanding with respect to the proposed

negotiations,” then Ms. Sellars should “please contact [Ogilvy] as soon as possible to discuss this

project further .” ( Id. at 4 (emphasis added).)

An hour later, as detailed in the Complaint, Ms. Sellars replied, stating that Keitel “has

agreed to do the 3 commercials for E Trade.”5 (Ex. C6; Cmpl. ¶ 30.) Ms. Sellars’ email did not

state that Mr. Keitel agreed to all of E*TRADE’s terms and the Complaint does not allege that it

did. Indeed, in addition to the three television commercials, the Term Sheet also contained

provisions concerning two radio commercials and an online advertisement (for a total of six

commercials), and provisions related to banner ads, digital materials, compensation, and other

things. (Ex. A at 1-3.)

5 Ms. Sellars’ purported acceptance of the “offer” was also not attached to Plaintiff’sComplaint and, again, the Complaint neglects to mention the conditions Ms. Sellars included.

6 Exhibit C is referenced in the Complaint in Paragraphs 30, 38, and 39.


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Ms. Sellars’ email “acceptance” also did not state that she believed a deal had been

finalized. (Ex. C.) On the contrary, in apparent acknowledgment of the requirement set forth in

the Term Sheet for a formal written agreement, Ms. Sellars asked Octagon to “please get us the

Long Form contract as soon as possible so that [she] can get it to your business affairs.” ( Id.

(emphasis added).) Before the execution of that “long form” contract, however, which would be

negotiated as described in the Term Sheet, Ms. Sellars set forth numerous conditions to be

“run . . . by” Mr. Keitel. Most consequentially, both in terms of cost and artistic vision,

Ms. Sellars asked that Octagon “keep them in the loop in terms of the director. As I said, Harvey

really wants a director who knows his work. Maybe someone like Ridley Scott, etc.” ( Id.)

Ms. Sellars also pointed out that Mr. Keitel “would like to have rehearsal time.”7 ( Id.) Finally,

Ms. Sellars stated that knowing “the city and days of shooting are equally important so I can run

them by Harvey.” ( Id.)

Concurrently with Octagon’s discussions with Ms. Sellars, E*TRADE and Ogilvy

continued their internal discussions regarding the direction of the campaign, which resulted in

E*TRADE concluding that it did not wish to proceed with Mr. Keitel. (Cmpl. ¶ 31.) E*TRADE

believed correctly that it had no obligation to Mr. Keitel, as the Term Sheet was—as made clear

by its provisions—a preliminary document. As such, on E*TRADE’s instructions, Octagon

communicated E*TRADE’s decision to Ms. Sellars. (Cmpl. ¶ 31.) On January 29, 2014, less

7 Ms. Sellars and Ms. Conti also had a telephone conversation, as referenced in the

Complaint, in which Ms. Sellars purportedly communicated Mr. Keitel’s acceptance. (Cmpl. ¶¶

28, 29.) This telephone conversation was memorialized in an email between Ms. Conti and herprincipals at Ogilvy. While E*TRADE does not rely on that email for the purposes of its motionto dismiss, the document memorializes nine other conditions to Keitel’s participation inE*TRADE’s advertising campaign, including a reduction in the number of hours Keitel wouldwork, limitations on E*TRADE’s right to use the resulting material, and the necessity ofE*TRADE acceding to Keitel’s requests to hire his preferred hairstylist, makeup artist, wardrobeperson, tailor, and assistant. These conditions were to appear in a “redline” that Ms. Sellarswould provide. All these terms together would have materially altered the value of the contract.


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than seventeen hours after the Term Sheet was first sent, Ms. Conti emailed Ms. Sellars to state

that the E*TRADE campaign was moving in a different direction and would not be negotiating

further with Mr. Keitel. ( Id.)

Despite the clear indicia that there had been no “meeting of the minds” between

E*TRADE and Mr. Keitel, upon receiving notice that E*TRADE was no longer interested in

using Mr. Keitel, Ms. Sellars professed to have understood the parties to have a binding and fully

negotiated contract, and demanded that her understanding of the purported contract be honored

by E*TRADE. (Cmpl. ¶¶ 32-33.)

It is that purported contract—the terms of which were never mutually agreed, executed,

or memorialized in a final writing (despite a requirement that they be so)—that underlies this

suit.

ARGUMENT

“A party may move for judgment dismissing one or more causes of action asserted

against him on the ground that . . . a defense is founded upon documentary evidence.” N.Y.

C.P.L.R. 3211(a)(1) (McKinney). “It is well settled that a defense based on documentary

evidence can succeed if the documents submitted resolve all of the factual issues as a matter of

law.” Gephardt v. Morgan Guar. Trust Co. of New York , 191 AD2d 229, 229 [1st Dept 1993]

(citing Standard Chartered Bank v. D. Chabbot, Inc., 178 AD2d 112 [1st Dept 1991]).

“Allegations consisting of bare legal conclusions, as well as factual claims either inherently

incredible or flatly contradicted by documentary evidence, are not entitled to . . . the benefit of

every favorable inference.” Shah v. Metro. Life Ins. Co., No. 108887/00, 2003 WL 728869, at

*8 (N.Y. Sup. Ct. Feb. 21, 2003) aff’d in part sub nom. Fiala v. Metro. Life Ins. Co., 6 AD3d 320

[1st Dept 2004] (citing Franklin v. Winard , 199 AD2d 220 [1st Dept 1993]). “‘Under New York


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law, whether a binding agreement exists is a legal issue, not a factual one.’” Guggenheim

Corporate Funding, LLC v. Access.1 Commc’ns Corp.-NY , 26 Misc. 3d 1210(A), 906 N.Y.S.2d

780 (Sup. Ct. 2009) (quoting Vacold LLC v. Cerami, 545 F.3d 114, 123 (2d Cir. 2008)). “‘In

determining whether a contract exists, the inquiry centers upon the parties’ intent to be bound,

i.e., whether there was a ‘meeting of the minds’ regarding the material terms of the transaction.’”

Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept

2010] (quoting Cent. Fed. Sav., F.S.B. v. Nat’l Westminster Bank, U.S.A., 176 AD2d 131, 132

[1st Dept 1991]) (reversing trial court and granting defendant’s motion to dismiss breach of

contract claim).

While Plaintiff failed to attach either the alleged contract or the critical correspondence to

his Complaint, the Court may properly consider both on a motion to dismiss pursuant to CPLR

3211(a)(1). Where, as here, the documents are extensively quoted from, relied upon, and

referenced in the Complaint, were exchanged between the parties, and are “essentially

undeniable,” dismissal is appropriate where “the documentary evidence utterly refutes plaintiff’s

factual allegations, conclusively establishing a defense as a matter of law.” Flushing Expo, Inc.

v. New World Mall, LLC , 116 AD3d 826, 827 [2d Dept 2014] (quoting Goshen v. Mutual Life

Ins. Co. of New York , 98 N.Y.2d 314, 325 [2002]). “[I]t is clear that judicial records, as well as

documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other

papers, the contents of which are ‘essentially undeniable,’ would qualify as ‘documentary

evidence.’” Fontanetta, 73 AD3d at 84-85; see also Webster Estate of Webster v. State of New

York , No. M-65923, 2003 WL 728780, at *1 (N.Y. Ct. Cl. Jan. 30, 2003) (court may properly

consider “a paper whose content is essentially undeniable and which, assuming the verity of its


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contents and the validity of its execution, will itself support the ground on which the motion is

based”) (quotation omitted).

The alleged contract, upon which Plaintiff rests the entirety of his Complaint, is clearly

“documentary evidence” under the standard of CPLR 3211(a)(1). “Where a written

agreement . . . unambiguously contradicts the allegations supporting a litigant’s cause of action

for a breach of contract, the contract itself constitutes the documentary evidence warranting the

dismissal of the complaint under CPLR 3211(a)(1).” 150 Broadway N.Y. Assocs. L.P. v. Bodner,

14 AD3d 1, 6 [1st Dept 2004]; see also Century-Maxim Const. Corp. v. One Bryant Park, LLC ,

23 Misc. 3d 1120(A), 886 N.Y.S.2d 70 [Sup. Ct. Westchester Cty. 2009].

Similarly, where Plaintiff “describe[s]” and quotes the correspondence between the

parties and relies upon it as the “offer” and “acceptance” in the Complaint, the correspondence

may also be properly considered. See Mendoza v. Akerman Senterfitt LLP, 128 AD3d 480, 482

[1st Dept 2015] (“The court properly deemed the above emails that were described and quoted in

the complaint itself to be documentary evidence”); see also DSA Realty Servs., LLC v. Marcus &

Millichap Real Estate Inv. Servs. of New York, Inc., 128 AD3d 587, 588 [1st Dept 2015]

(permitting consideration of correspondence as “documentary evidence” “since there is no

dispute as to its genuineness, and its content is ‘essentially undeniable’”); Kolchins v. Evolution

Markets, Inc., 128 AD3d 47, 58 [1st Dept 2015] (permitting consideration of emails as

“documentary evidence” in breach of contract case); Chambers v. Weinstein, 44 Misc. 3d

1224(A), 997 N.Y.S.2d 668 [N.Y. Sup. Ct. 2014] (on CPLR 3211(a)(7) motion, considering

emails as “documentary evidence” because emails demonstrated that the parties were still

negotiating at the time plaintiffs alleged the contract had been agreed). Plaintiff has “assumed

the verity of [the documents’] contents and the validity of [their] execution,” Webster Estate,


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2003 WL 728780, at *1, in relying upon the Term Sheet and correspondence as the basis of his

alleged contract.

Plaintiff’s Complaint is also subject to dismissal pursuant to CPLR 3211(a)(7) because

“the pleading fails to state a cause of action.” N.Y. C.P.L.R. 3211(a)(7) (McKinney). “On a

motion addressed to the sufficiency of a complaint pursuant to CPLR 3211(a)(7), the facts

pleaded are presumed to be true and accorded every favorable inference. However, allegations

consisting of bare legal conclusions, as well as factual claims either inherently incredible or

flatly contradicted by documentary evidence, are not entitled to such consideration.” Franklin,

199 AD2d at 220 (citation omitted). “If the documentary proof disproves an essential allegation

of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations,

standing alone, could withstand a motion to dismiss for failure to state a cause of action.” Peter

F. Gaito Architecture, LLC v. Simone Dev. Corp., 46 AD3d 530, 530 [2d Dept. 2007] (citation

omitted) (granting motion to dismiss where parties had exchanged “unsigned draft agreement”

and “preliminary ‘memorandum of understanding’” by email, because “[u]nder the

circumstances, the parties evinced their intent not to be bound until the execution of a formal

contract, and no enforceable obligation arose”).

In this case, despite Mr. Keitel’s protestations to the contrary, the clear text of the Term

Sheet—the purported contract at issue—both states that “neither party shall be bound” and

discusses future “negotiations” and a “proposed agreement.” (Ex. A at 1, 3.) Those provisions

demonstrate that there was no “meeting of the minds” between the parties concerning the final

terms. Furthermore, the correspondence from Mr. Keitel’s agent, which allegedly constitutes

Mr. Keitel’s “acceptance” of E*TRADE’s “offer,” both failed to accept the entire offer and

contained numerous material modifications to the provisions outlined in the Term Sheet. (Ex.


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C.) As such, Plaintiff’s response was not an acceptance, but a counter-offer that was never

accepted by E*TRADE. For each of these independent reasons, no contract was ever created

between Mr. Keitel and E*TRADE, and Mr. Keitel’s suit for breach of contract must fail.

I. THE TERM SHEET’S EXPLICIT STATEMENT THAT “NEITHER PARTY

SHALL BE BOUND” IS DISPOSITIVE OF PLAINTIFF’S CLAIM OF A

“BINDING AND ENFORCEABLE CONTRACT.”

The Complaint alleges that on January 27, 2014, “E*Trade . . . made a firm binding

offer” to Plaintiff, and that that offer “contained all of the material terms necessary to create a

binding and enforceable contract.” (Cmpl. ¶ 37, 38.) The Complaint did not attach the Term

Sheet that constituted the purported “offer.” The reason is clear—the Term Sheet conclusively

disproves any allegation that a “binding and enforceable contract” was created.

On its face, the Term Sheet states that “neither party shall be bound until the parties

execute a more formal written agreement , which shall include terms and conditions standard for

agreements of this type . . . .” (Ex. A at 3-4 (emphasis added).) Under New York law, that

provision is dispositive because where the parties to a negotiation clearly “anticipate that a

signed writing is required, there is no contract until one [wa]s delivered.” Amcan Holdings, Inc.

v. Canadian Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept 2010] (emphasis added).

The First Department’s ruling in Amcan Holdings is instructive. In that case, plaintiffs

sued to enforce an alleged financing agreement with defendant CIBC, manifested in a document

entitled the Summary of Terms and Conditions. Id. at 424. The Summary was fifteen pages

long and contained “detailed descriptions of the credit lines, the amount of funding to be

provided under each, amortization and interest rates, fees, security, a proposed closing date and

definitions of key terms.” Id . It also provided for fees of $50,000 and $150,000 immediately

payable to CIBC upon “acceptance of [a draft and] this committed offer .” Id. at 425 (emphasis

added). However, crucially, the Summary included the following disclaimer: “[t]he Credit


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Facilities will only be established upon completion of definitive loan documentation, including a

credit agreement . . . which will contain the terms and conditions set out in this Summary in

addition to such other representations . . . and other terms and conditions . . . as CIBC may

reasonably require.” Id. at 424. Plaintiffs received the Summary, executed the document, and

purported to accept it by remitting it to CIBC along with the required deposit of $200,000.

After receipt of the deposit and prior to execution of the “definitive loan documentation,”

CIBC “broke off negotiations,” returned the plaintiffs’ deposit, and refused to complete the

financing agreement. Id. at 425. The plaintiffs then sued CIBC for breach of contract, breach of

the defendants’ obligation of good faith and fair dealing, and fraud, alleging that the Summary

was a binding agreement.

The First Department affirmed the grant of CIBC’s motion to dismiss all claims. The

Court acknowledged that “the Summary was extensive and contained specific information

regarding many of the terms to be contained in the ultimate loan documents and credit

agreements.” Id. at 427. Moreover, the Summary had been signed and remitted, and a

significant deposit paid. Nonetheless, “where the parties anticipate that a signed writing is

required, there is no contract until one is delivered .” Id. (citing Scheck v. Francis, 26 N.Y.2d

466, 470-71 [1970]) (emphasis added). In that circumstance, even the detailed Summary “d[id]

not change the fact that defendants clearly expressed an intent not to be bound until those

documents were actually executed.” Id.

Amcan Holdings is just one of a litany of New York cases that enforce the requirement of

a signed writing. For example, in StarVest Partners II, L.P. v. Emportal, Inc., 101 AD3d 610

[1st Dept 2012], Emportal and StarVest executed a five-page term sheet, which provided for

StarVest to finance Emportal in return for a stake in the company. On the first page, the term


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sheet stated that “[b]inding agreements will be entered into only upon the execution by all parties

of the Stock Purchase Agreement and other related documents. This Term Sheet is for

discussion purposes only and there is no obligation on the part of any party unless and until a

definitive stock purchase agreement is signed by all parties.” Id. at 611. Approximately one

month later, StarVest “advised [Emportal] that it could not proceed with [the] investment.” Id. at

612. StarVest sought a declaratory judgment that, inter alia, it had not breached a contract. The

Court granted summary judgment in favor of StarVest, because “[d]ismissal of the breach of

contract counterclaims is required where, as here, the parties have agreed that there would be no

binding agreement until their execution of a written contract, but no such contract was ever

executed.” Id. at 612 (citing Amcan Holdings, 70 AD3d at 426-27) (emphasis added). Emportal

also argued that an oral contract had been created which waived the term that required

documentation. However, the Court found that “the concept of freedom of contract includes the

freedom to avoid oral agreements, a freedom that is especially important when business

entrepreneurs and corporations engage in substantial and complex dealings. We think it

preferable to allow sophisticated parties operating in the business world to decide when and how

they wish to enter into legally enforceable contracts.” Id. at 613 (quoting Jordan Panel Sys.

Corp. v Turner Constr. Co., 45 AD3d 165, 173-174 [1st Dept 2007] (quotations omitted)).

Just as in Amcan Holdings, the Term Sheet in this case “anticipated a signed writing,”

and as in StarVest Partners, it explicitly disclaimed any “obligation” until that signed document

was executed. Moreover, the four page Term Sheet upon which Keitel is relying was

significantly less “extensive” than the fifteen page Summary relied upon in Amcan Holdings.

Amcan Holdings and StarVest Partners are squarely on point with the case presented by

Plaintiff, and require the dismissal of this suit.


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Numerous other cases have reached similar holdings. See, e.g., In re Lyondell Chem.

Co., 491 B.R. 41, 55-56 (Bankr. S.D.N.Y. 2013) aff’d, 505 B.R. 409 (S.D.N.Y. 2014) (relying on

Amcan Holdings and granting motion to dismiss claim for interference with contract where under

New York law, there was no enforceable contract; “the repeated references in the Information

Memorandum to the future definitive documentation that later would need to be executed, and

Highland’s statement, in the Commitment Letter, that Highland’s commitment was ‘subject to’

the execution of definitive documentation, strongly compel a conclusion that binding contractual

relations did not come into being before definitive documentation was drafted and executed.”);

Jordan Panel, 45 AD3d at 166 (“It is well settled that, if the parties to an agreement do not

intend it to be binding upon them until it is reduced to writing and signed by both of them, they

are not bound and may not be held liable until it has been written out and signed.”) (citation

omitted); Aksman v. Xiongwei Ju, 21 AD3d 260, 261-62 [1st Dept 2005] (“In our view, the letter

of intent, which is clearly a preliminary, nonbinding proposal to agree, conclusively negates

plaintiff’s breach of contract claim . . . . [T]he letter of intent expresses the parties’ intention to

enter into a contract ‘at a later date’ and nowhere states that they intend to be legally bound until

such future agreement is reached. Moreover, the letter’s opening line, setting forth its purpose as

‘a basis for conducting business between [the parties] during the Development and Test Trading

Phases,’ as well as the letter’s repeated statement that it will be replaced by a ‘contract,’ reflects

the parties’ intent not to be bound until an agreement establishing the proposed joint venture

(Quantitative Strategies Group) is reached.”) (internal citations omitted); Prospect St. Ventures I,

LLC v. Eclipsys Solutions Corp., 23 AD3d 213, 213 [1st Dept 2005] (“The letter agreement

dated July 15, 1998, upon which plaintiffs rely, was a mere ‘agreement to agree’ rather than an

enforceable contract, since it was expressly conditioned on the ‘execution of a definitive


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agreement satisfactory in form and substance’ to both sides, and nothing in the complaint or

record reflects that this condition was waived. The continued applicability of this condition

precluded the formation of a contract in the form of the letter agreement, since that document

manifested an intent not to be bound unless there was such a definitive agreement or a waiver

thereof.”) (citations omitted); Guggenheim Corporate (“The September Term Sheet states that

the parties consent to the proffered terms and conditions, was subject to ‘the execution and

delivery of definitive documentation in form and substance acceptable to the parties by no later

than September 26, 2008, unless such date is extended by the agreement of all the parties.’ The

law is clear that a party is not contractually bound to an agreement where such agreement

provides that it is not binding until the execution of a formal agreement.”) (citation omitted).

As were the agreements in Amcan Holdings, StarVest , Jordan Panel, Lyondell, Aksman,

Prospect St., and Guggenheim Corporate, the Term Sheet at issue in this case is clear: “neither

party shall be bound” by its terms “until the parties execute a more formal written agreement.”

(Ex. A at 3.) That more formal written agreement was never executed, and therefore no contract

was ever formed between E*TRADE and Plaintiff. Plaintiff’s attempts to characterize the Term

Sheet as a “firm and binding offer” (Cmpl. ¶ 26) in clear contravention of its explicit language

are unavailing.

II. NUMEROUS OTHER PROVISIONS OF THE TERM SHEET AND

SURROUNDING DOCUMENTS INDICATE THAT THERE WAS NO FINAL

MEETING OF THE MINDS.

Mr. Keitel’s argument for “an enforceable and binding contract” is not only fatally

undermined by the Term Sheet’s requirement of a “more formal written agreement”—but also by

numerous other provisions of the Term Sheet, the Cover Email, and Ms. Sellars’ purported

“acceptance,” which clearly demonstrate that the parties had not yet come to an agreement on the

material terms of any agreement. A contract requires a finding of “the parties’ intent to be


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bound, i.e., whether there was a ‘meeting of the minds’ regarding the material terms of the

transaction.’” Amcan Holdings, 70 AD3d at 426. Where there is no intent to be bound—or an

expressed intent not to be bound—there is no meeting of the minds and no contract. Here, it is

clear from the Term Sheet and all of the other documents that there was no intent to be bound.

The Term Sheet contains numerous indicia of its preliminary nature. The first sentence

of the Term Sheet states that it “cover[s] a proposed agreement.” (Ex. A at 1 (emphasis added).)

The next sentence repeats that phrase. On the third page of the document, the Term Sheet refers

to Mr. Keitel’s “potential participation” in E*TRADE’s advertising, and the final paragraph of

the document invites Mr. Keitel to participate in “proposed negotiations.” ( Id. at 3-4.) Under

New York law, an “intent not to be bound is also manifested in the references . . . to a ‘proposed’

commitment and a ‘proposed’ transaction.” Prospect St., 23 AD3d at 21; see also Aksman Ju, 21

AD3d at 261-62 (“[T]he letter’s opening line, setting forth its purpose as ‘a basis for conducting

business between [the parties] during the Development and Test Trading Phases,’ as well as the

letter’s repeated statement that it will be replaced by a ‘contract,’ reflects the parties’ intent not

to be bound”).

Second, the Term Sheet was not signed by Ogilvy, sent on Ogilvy letterhead, or even sent

in PDF form so that it could not be altered. (Ex. A.) It was, in fact, sent unsigned as a Microsoft

Word document, for ease of editing.

Third, the Term Sheet was not complete. For example, in the first sentence, the Term

Sheet states that the “proposed agreement” will be between “the Ogilvy Group . . . and

__________ (‘Supplier’) f/s/o Harvey Keitel (‘Artist’).” ( Id. at 1.) Similarly, the Term Sheet

was to be signed by someone at Ogilvy, but the “By:” and “Title:” lines were both blank and

waiting to be filled. ( Id. at 4.) In other words, the purportedly binding contract between


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E*TRADE and Mr. Keitel had not established either the name of the entity who was entering

into the proposed agreement on behalf of Mr. Keitel nor the individual who was doing so on

behalf of E*TRADE.

Fourth, as discussed above, the Term Sheet closes with an explicit statement that it “sets

forth the general intent of the parties to discuss in good faith the terms and conditions of Artist’s

potential participation in Client’s advertising, provided that neither party shall be bound until the

parties execute a more formal written agreement , which shall include terms and conditions

standard for agreements of this type . . . .” ( Id. at 3-4 (emphasis added).)

Fifth, the Term Sheet asks that, if Ms. Sellars agrees with the Term Sheet’s

“understanding with respect to the proposed negotiations,” she “please contact [Ogilvy] as soon

as possible to discuss this project further .” ( Id. at 4 (emphasis added).) Both of these phrases

indicate that the parties clearly contemplated further discussion and negotiation before an

agreement would be formed.

Sixth, the Term Sheet makes clear that it contains only “some of the principal terms of the

proposed agreement.” ( Id. at 1.) Telling are the terms that are not contained in the Term Sheet,

and which awaited “a more formal written agreement, which shall include terms and conditions

standard for agreements of this type.” ( Id. at 3-4.) The Term Sheet contained no provision

regarding the mechanism of payment, the script, or who the director would be. It expressly left

open negotiations over schedule. It did not include an integration clause, a termination clause, a

provision regarding the severability of terms, a choice of law provision, a choice of forum or

arbitration provision, or a provision providing for the resolution of disputes regarding the

interpretation of the agreement. In fact, it specifically left all of those things for that “more

formal” agreement and the “negotiation” of “standard warranty, adjustment, force majeure,


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termination, ownership, morals clause, confidentiality and indemnification provisions.” ( Id.)

This is precisely the type of language that signals the need for and expectation of further

dialogue, not a final “meeting of the minds.”

In addition to the Term Sheet, both the Cover Email (Ex. B) and the email purportedly

“accepting” the offer (Ex. C) clearly anticipate further discussions. The Cover Email states that

the “offer” is “contingent upon the results of the background check, and of course coming to

terms on scripts, compensation, etc.” (Ex. B.) Scripts and compensation are clearly material

terms to any agreement to produce commercials. And the purported “acceptance” of

E*TRADE’s “offer” asked Ogilvy to forward the “long form” agreement which would be shared

with a “business affairs” team for review. (Ex. C.)

Under clear New York precedent, as a matter of law, such documents cannot be said to be

the type of offer that evidences E*TRADE’s “intent to be bound.” See Prospect St., 23 AD3d at

213. Absent such an intent, E*TRADE cannot be said to have made a binding offer.

III. OCTAGON’S USE OF THE PHRASE “FIRM AND BINDING” CANNOT

NEGATE THE EFFECT OF THE TERM SHEET’S CLEAR LANGUAGE.

To dispute the Term Sheet’s clear requirement of a written agreement, and the many

indicia that E*TRADE had no intent to be bound, the Complaint relies upon a single document,

again referenced and quoted from but not attached to the Complaint: the Cover Email, which

stated in part that the offer was “firm and binding,” had the subject line “Harvey Keitel Firm

Offer,” and included a Microsoft Word version of the Term Sheet with the file name

“Keitel_Ogilvy_eTrade_Term_sheet.DOC.” (Cmpl. ¶¶ 21-23.) Under New York law, such

statements (even if they were complete quotes from the document) are insufficient to override

the explicit language in the Term Sheet.


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Where a written contract is clear, representations that are contrary to the contract

language will not be sufficient to override the text unless the waiver of a specific provision is

both clear and unmistakable. See Prospect St., 23 AD3d at 213 (a letter agreement “expressly

conditioned on the ‘execution of a definitive agreement satisfactory in form and substance’ to

both sides” was not an enforceable contract where “nothing . . . reflects that this condition was

waived”); Gen. Motors Acceptance Corp. v. Clifton-Fine Cent. Sch. Dist., 85 N.Y.2d 232, 236

[1995] (“Waiver requires the voluntary and intentional abandonment of a known right which, but

for the waiver, would have been enforceable”) (citations omitted); see also Longo v. Shore &

Reich, Ltd., 25 F.3d 94, 97 (2d Cir. 1994) (no contract of employment existed where contract

stated that it was not valid until counter-signed, even though employee signed and worked for a

year; offer was never counter-signed by the company).

The case of Naturopathic Labs. Int’l, Inc. v. SSL Americas, Inc., 18 AD3d 404, 405 [1st

Dept 2005], is instructive. In that case, the court dismissed a complaint for breach of contract,

where a written contract was never executed by the defendant who stated with respect to a draft

that the “deal was done.” Id. As the Court held, “[t]o the extent that plaintiffs profess reliance

on Heap’s remark that the ‘deal was done,’ and that the contract was complete but for the

resolution of a pending lawsuit, it was not reasonable for them to have believed that SSL

International had committed to purchasing the stock since the written language consistently used

in SSL International’s communications, and included in the July 30, 2002 draft agreement,

provided that the execution and delivery of an agreement would be essential to the existence of a

valid and binding contract.” Id. This Court should likewise dismiss Mr. Keitel’s claim for

breach of contract where the very contract to which he supposedly agreed says that “neither party

shall be bound until the parties execute a more formal written agreement.” (Ex. A at 3.)


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Moreover, even if the language of the Cover Email could override the Term Sheet—

which it cannot—Mr. Keitel’s Complaint is misleading. While the Complaint quotes the Cover

Email as stating the “offer” was “firm and binding,” it conspicuously fails to continue the

quote—or even attach the email so that the Court could read the quote for itself. The full quote

reads as follows: “[p]lease consider the attached term sheet a firm and binding offer for the

services of your client, Harvey Keitel on behalf of E*TRADE, contingent upon the results of the

background check, and of course coming to terms on scripts, compensation, etc .” (Ex. B

(emphasis added).) Obviously, a contingent offer cannot result in a contract unless and until all

of the conditions have been met. Wachtel v. Nat’l R.R. Passenger Corp., No. 11 CIV. 613 PAC,

2012 WL 292352, at *2 (S.D.N.Y. Jan. 30, 2012) (“Since Plaintiff did not complete all of the

conditions precedent, no contract was formed, and Defendants were under no implied obligation

not to frustrate or prevent the performance of the conditions precedent.”) (citation omitted);

Shehab v. Chas. H. Sells, Inc., No. 04 CIV 01534, 2006 WL 938715, at *6 (S.D.N.Y. Mar. 29,

2006) (“Because these conditions [in his offer] were not satisfied, [the defendant] incurred no

contractual obligation, and no claim of breach can lie.”); Cent. Fed., 176 AD2d at 132 (granting

defendant’s motion for summary judgment on breach of contract claim where defendant’s “offer

was contingent upon agreement as to certain material terms” and those material terms remained

open.).

IV. THE PLAINTIFF RESPONDED TO E*TRADE’S TERM SHEET WITH

MATERIALLY DIFFERENT CONDITIONS; HIS RESPONSE CONSTITUTED A

COUNTER-OFFER THAT E*TRADE DID NOT ACCEPT.

The Complaint should also be dismissed because Mr. Keitel did not accept the purported

offer. “To enter into a contract, a party must clearly and unequivocally accept the offeror’s

terms. If instead the offeree responds by conditioning acceptance on new or modified terms, that

response constitutes both a rejection and a counteroffer which extinguishes the initial offer.”


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Thor Props., LLC v. Willspring Holdings LLC , 118 AD3d 505, 507 [1st Dept 2014] (citations

omitted) (finding that no contract was created and granting summary judgment where receiving

party proposed “slight modifications;” those modifications were not immaterial and constituted a

counter-offer, which was never accepted); Woodward v. Tan Holding Corp., 32 AD3d 467, 469

[2d Dept 2006] (where “defendant’s acceptance of the purchase agreement was conditioned upon

the plaintiff’s agreement to the terms set forth in the first rider,” and where “plaintiff unilaterally

modified one of its material terms by inserting the word ‘not’ into the assignment provision,”

each modification constituted a counteroffer that was not accepted, so no contract was formed).

Ms. Sellars’ responses to Octagon were not “clear and unequivocal.” In fact, she

requested, on behalf of her client, information on several undecided issues, which needed to be

“run . . . by” Keitel. (Ex. C.) These included the identity of the director (including a request for

Ridley Scott, a major star), the rehearsal schedule, the location, and the days of shooting. ( Id.)

Terms such as these—which had the potential to greatly affect the scope, cost, and artistic

direction of the finished product—were clearly material. She also stated only that Mr. Keitel

“has agreed to do the 3 commercials for E Trade” without stating that he also agreed to do the

two radio commercials, the on-line video, the B-Rolls, the digital materials, or any of the other

items spelled out in the Term Sheet. Nor does the Complaint allege anywhere that Mr. Keitel

had agreed to those things. On the contrary, the Complaint alleges that Mr. Keitel accepted

E*TRADE’s offer to “star in a series of three commercials” (Cmpl. ¶ 4) without mentioning that

the Term Sheet covered three other commercials and several additional items (Ex. A at 1-3).

Courts in New York have determined that even small variances in terms constitute a

“counteroffer.” See E. Consol. Props,., Inc. v. Morrie Golick Living Trust , 83 AD3d 534, 535

[1st Dept 2011] (no contract for sale of property where “[t]he potential buyer’s attorney


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responded with concerns about inspection, zoning, air rights, parking and artist certification for

‘Joint Living Working Quarters.’ These negotiations demonstrate that there never was a meeting

of the minds on all essential terms.”); King v. King, 208 AD2d 1143, 1144 [3d Dept 1994]

(plaintiff did not validly accept separation agreement where she stated that she “had no objection

to any of the material provisions” and requested one week, instead of one day, to vacate the

property; her response “fail[ed] to make clear that the proposed separation agreement would be

acceptable to defendant even if the requested changes were not granted” and thus was a rejection

and counteroffer); see also Roer v. Cross Cnty. Med. Ctr. Corp., 83 AD2d 861, 862 [2d Dept

1981] (holding that where “plaintiff’s reply was not an absolute and unqualified assent . . . no

binding contract was formed.”).

Here, the proposed conditions could have radically increased the overall cost of the

advertising campaign. Any one of the alterations that Ms. Sellars proposed was sufficient to

render her response “not an absolute and unqualified assent,” Roer , 83 AD2d at 862; taken

together, all of them make clear that the parties had not reached mutual agreement.

CONCLUSION

The Court should dismiss Mr. Keitel’s Complaint in its entirety with prejudice for each of

the four independent reasons discussed above. First , the Complaint should be dismissed because

the purported contract at the heart of this dispute was not, in fact, a contract at all—instead, the

Term Sheet provides that “neither party shall be bound until the parties execute a more

formal written agreement.” (Ex. A at 3.) Second , numerous other provisions in the Term

Sheet demonstrate that it was not a final agreement and that there was no “meeting of the

minds.” Third , Mr. Keitel’s claim for breach of contract depends almost entirely on the

allegation that the Cover Email stated that the Term Sheet was a “firm and binding” offer;


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however, the Complaint omits that the offer was explicitly “contingent upon . . . [the parties]

coming to terms” on open issues (Ex. B), and could not supersede the Term Sheet’s clear

requirement of a written agreement. Fourth, the Complaint also fails because Mr. Keitel never

accepted the purported offer, but instead responded with a counteroffer that was never accepted

by E*TRADE. For the foregoing reasons, E*TRADE respectfully requests that this Court

dismiss the Complaint.

DATED: New York, NYAugust 12, 2015

QUINN EMANUEL URQUHART &

SULLIVAN, LLP

/s/ Corey Worcester Faith E. GayCorey WorcesterRenita Sharma51 Madison Avenue, 22nd FloorNew York, NY 10010Tel.: (212) 849-7000Fax: (212) 849-7100

Attorneys for E*TRADE Financial

Corporation


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CERTIFICATE OF SERVICE

I hereby certify that, this 12th day of August, 2015, I have electronically filed a copy of

the above and foregoing with Clerk of the Court using the NYS Courts Electronic Filing system,

which sent notification of such filing to counsel of record.

/s/ Corey Worcester

Corey Worcester

Documents

Etrade Keitel