ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, November 8, 2018

Mirror image rule reminder

Here's one for exam review. 

A recent case out of the District of Oregon, Reed v. Ezelle Investment Properties Inc., Case No. 3:17-cv-01364-YY, contains an application of the mirror image rule. 

The parties in the case were embroiled in a copyright infringement dispute. They had settlement discussions as follows: 

  • Reed's counsel sent Ezelle a cease and desist letter that included a settlement agreement proposing to settle the matter for $5,000. 
  • Negotiations followed. 
  • Ezelle's counsel sent Reed's counsel a thousand dollar check (stating that it was not a settlement offer, although that doesn't seem important to the analysis here). 
  • Reed's counsel responded saying that Reed accepted the thousand dollar offer and sending Ezelle's counsel a new proposed settlement agreement. 
  • Ezelle's counsel crossed out the proposed agreement's confidentiality clause and sent it back. 
  • Reed's counsel said the confidentiality clause was non-negotiable. 
  • There were further negotiations that fell apart, leading eventually to this lawsuit. 

Ezelle argued that the parties had settled the case through the above series of events, but the court found there was never a binding settlement because Ezelle never accepted the settlement agreement. Under the mirror image rule, when Ezelle's counsel crossed out the confidentiality clause, that operated as a counteroffer that Reed would have needed to accept. Reed never did. Rather, Reed informed Ezelle that the proposed modification of the settlement agreement was unacceptable. Therefore, there was no binding settlement agreement between the parties. 

Ezelle argued that the confidentiality clause should be classified as immaterial or unconscionable, so that the settlement agreement should be enforced just with the confidentiality clause struck, as Ezelle had desired. However, the court found no reason to strike the confidentiality clause. 

The court went on to find copyright infringement and awarded $1500 in statutory damages, as well as attorneys' fees and costs. 

https://lawprofessors.typepad.com/contractsprof_blog/2018/11/mirror-image-rule-reminder.html

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