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Harvey Keitel is out of luck. On Tuesday, a New York appeals court affirmed the dismissal of a lawsuit he launched against E*Trade for allegedly backing out of a deal for him to star in commercials.
The Oscar-nominated actor sued in June 2015 with the allegation that E*Trade made a “firm and binding offer” to hire him for a celebrity spokesperson advertising campaign. Keitel was approached after Christopher Walken passed on the gig. Ultimately, Kevin Spacey was tapped for the role.
Previously, a New York Supreme Court decided that the $1.5 million term sheet for Keitel wasn’t a binding contract regardless of industry convention.
“I’m sorry, but the culture that pervades Hollywood or the entertainment industry doesn’t substitute for the law of the State of New York,” said the judge at a hearing. “I think the biggest favor I’m going to do him now is dismiss the claim and save him a lot of money in needlessly pursuing a claim that ultimately is going nowhere.”
Keitel wasn’t satisfied. He looked to revive his lawsuit at New York’s first appellate division, but Tuesday brought a letdown.
According to the decision, “Plaintiff’s allegations that his agent requested that any offer be ‘firm and binding,’ that defendant’s agent acknowledged this request, that internal communications between defendant and its agents reveal an intention to make a firm offer, that the cover email transmitting the term sheet labeled the offer ‘firm and binding,’ and that defendant later offered a fee to ‘kill’ the contract are not sufficient to negate or demonstrate a waiver of the provision that the parties would not be bound until they executed a formal written agreement.”
The appellate judges add, “Plaintiff’s agent’s demand for a firm offer and defendant’s agent’s acknowledgment of this request, before consulting with her client, prove nothing about what was ultimately agreed. Nor do defendant and its agents’ internal communications preceding the offer, to which plaintiff was not privy, prove what was ultimately agreed.”
It’s also held that the “kill fee” amounts to an offer of compromise, and under New York law, settlement discussions are not admissible as evidence of liability.
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