In 1999, the plaintiff sold his New York–based public relations firm, Lobsenz Stevens, to the defendants, Publicis S.A., a French global communications company, and its American subsidiary. The sale involved two contracts: a stock purchase agreement pursuant to which the plaintiff sold all of his stock in the firm to the defendants, and an employment agreement pursuant to which the plaintiff was to continue as chairman and CEO of the new company, named Publicis-Dialog (PD), for three years. Under the stock purchase agreement, the plaintiff received an initial payment of $3,044,000 and stood to earn “earn-out” payments of up to $4 million contingent upon PD achieving certain levels of earnings before interest and taxes during the three calendar years after the closing. The employment agreement described the plaintiff’s duties as the “customary duties of a Chief Executive Officer.” Within six months of the closing, signs of financial problems appeared, including the loss of PD’s largest pre-acquisition client. In March 2001, the plaintiff was removed as CEO of the business and given several options, including leaving the firm, staying and working on new business, and a third option of coming up with another alternative. Thereafter, Bob Bloom, former chair and CEO of Publicis USA, and the plaintiff exchanged a series of e-mails, which culminated in a March 28 message from Bloom that set forth his understanding of the parties’ terms regarding the plaintiff’s new role at PD as follows:
Thus I suggested an allocation of your time that would permit the majority of your effort to go against new business development (70%). I also suggested that the remaining time be allocated to maintaining/growing the former Lobsenz Stevens clients (20%) and involvement in management/operations of the unit (10%). This option, it would seem, is in your best interest because it offers the best opportunity for you to achieve your stated goal of a full earn-out. When I suggested this option, you seemed to have considerable enthusiasm for it and expressed your satisfaction with it so I, of course, assumed that it was an option you preferred.
The plaintiff responded with an e-mail that stated, among other things, “I accept your proposal with total enthusiasm and excitement. . . . I’m psyched again and will do everything in my power to generate business, maintain profits, work well with others and move forward.” Bloom responded that he was “thrilled with [the plaintiff’s] decision.” Each of the e-mail transmissions bore the typed name of the sender at the foot of the message. The plaintiff subsequently filed a lawsuit based on the terms of the original employment agreement and filed a motion for summary judgment claiming that the e-mail exchanges did not constitute “signed writings” within the meaning of the statute of frauds. What arguments would you make on behalf of the defendants? Which party do you think will prevail? [Stevens v. Publicis, S.A., 854 N.Y.S.2d 690 (2008).]