If You Write “Flounder” on the Contract’s Signature Line, Are You Scrod?

For the uninformed, I note merriam-webster.com defines scrod as “a young fish (as a cod or haddock)”.

We voyage to the Southern District of New York for this yarn. An employee having an employment agreement is pressured to amend the agreement. He is found to have written “flounder” on the amended terms and and returned them. Does this manifest assent?

I cannot have made this up. It’s from Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792(KBF), 2014 WL 113745 (S.D.N.Y. Jan. 13, 2014). Here’s what one Judge Forrest, formerly a partner at the Cravath firm, writes about the matter:

Brittingham consistently refused to execute his amended EA—which, based on the factual record and as explained in more detail below, was closer to an $8 million hold-up than a mutually agreed upon deal.44 While a copy of the amended EA was eventually faxed by Thompson to Cofield, Brittingham had never signed it; instead, it had the word “flounder” scribbled on the last page in the signature block. (PX 126.) At trial, Brittingham denied having written the word “flounder,” but the Court found this testimony lacking credibility. (Tr. 460–61.) The Court did find credible, however, his testimony that he intentionally did not sign his name to the amended EA and that, in his view, he never entered into the agreement. (Tr. 462–64.) As a sophisticated counter-party, Remington could not reasonably have been duped into believing Brittingham had adequately executed the proposed amended EA based on the scribbling on the last page.

As one might expect, the opinion goes on to address whether there had been assent by conduct. The opinion is quite long–too long to summarize here.

There is a difficult line to be drawn between the so-called “duty to read” and actions that are constructively fraudulent. Illustrative of the latter camp is Hand v. Dayton-Hudson, 775 F.2d 757 (6th Cir. 1985).  There the court reformed a release signed by an employee in connection with receipt of a severance payment.  The employee re-typed a form the employer provided, to appear superficially identical to the form the employer proffered, but in a few words limiting the scope of the form release.  The appellate court affirmed the trial courts reforming the release described by the appellate court as having been fraudulently altered.

I must say that I am not particularly a fan of much of the authority applying the “duty to read”. It’s often applied in contexts where one is seeking to obtain assent in contexts where it is not knowing and voluntary. So, here we have a case going the other way. The employer is “hooked” by the principle employers often use themselves. Or is it “foul” hooked?