Click here to read Shapiro Sher’s July 2013 Employment Law Update, with a focus on what employers should consider before implementing a “bring-your-own-device” policy in the workplace.

A New York appellate court has confirmed what many people may already presume: that an email can sometimes carry the same clout as a formal, signed document. The decision reinforces the point that email correspondence in the context of negotiations must be undertaken with care.

As reported last week in the New York Law Journal, the appellate judges in Forcelli v. Gelco Corporation unanimously ruled that a signed email attesting to a negotiated agreement – and signed by email signature — is just as binding as a signature on the agreement itself.

New York statues, like Maryland’s, instruct that an agreement must be “signed” by the parties or their attorneys in order to be valid. However, in the decision handled down by New York’s Appellate Division, Second Department, Justice Sandra Sgroi wrote, “Given the widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria…simply because they cannot be physically signed in a traditional fashion.”

In Forcelli, the dispute focused on the enforceability of an email that summed up the terms of a settlement over a car accident. Plaintiff John Forcelli had sued Gelco Corporation for injuries sustained when another vehicle collided with his. Gelco owned the vehicle that hit Mr. Forcelli’s car.

The email in question was sent to all parties involved and was “e-signed” by the claims adjuster representing Gelco’s insurer, reflecting that all parties had agreed orally that Mr. Forcelli would be paid a settlement of $230,000. The email attached a Medicare document for signature; at the bottom of the email the adjuster typed, “Thanks Brenda Greene” (her name).

Mr. Forcelli signed his copy agreeing to the terms, had it notarized and then his attorney filed a motion to release the other parties from all further court action. He did so under the presumption that the documents would actually be signed and returned per the agreement and that he would receive his settlement money.

Once the court accepted Mr. Forcelli’s motion to release the other parties and vacated the matter, Gelco’s attorney faxed a letter to Mr. Forcelli’s counsel telling him that the settlement was “not consummated” under New York law and that the motion to vacate now relieved Gelco of the $230,000 settlement terms. The court disagreed.

As the attorney for Mr. Forcelli said following the verdict, “This confirms what all reasonable minds would have expected, that mutually agreed to settlements — where confirmed via email or fax, and followed up by transmittal of settlement documents — constitutes a binding settlement.”

All eyes are on California’s Ninth Circuit Court of Appeals, which is tasked with deciding whether sexual orientation can be used peremptorily to exclude potential jurors in federal court. The Recorder, a California legal publication, reports that the appellate court has appointed a panel to decide the issue, which will likely have broad implications in courts around the country.

As explained in a New York Times article last month, at the center of this debate is SmithKline Beecham v. Abbott Laboratories, which involves two large pharmaceutical companies locked in an antitrust battle over a commonly used HIV medication. When a lawyer representing Abbott used a peremptory strike to remove a potential juror from the jury pool, the SmithKline lawyer objected that the Abbott lawyer was doing so because the potential juror was gay. Though none of the questions in SmithKline’s voir dire focused on sexual orientation, the prospective juror voluntarily referenced his male partner in answering some of the questions.

Since peremptory strikes are those that can be used without cause, Abbott’s lawyer could have explained his strike in a multitude of inoffensive ways, so long as his strike did not involve race or gender. The race and gender distinction is known as the Batson challenge, in reference to the 1986 U.S. Supreme Court decision in Batson v. Kentucky that peremptory challenges during voir dire cannot be made on the basis of race. The Batson challenge was later expanded to include gender as well.

The question of whether Batson should address sexual orientation in addition to race and gender as exclusions to the peremptory-strike rule is more complicated than either of the other two exclusions. For one, it is not always obvious whether someone is gay, and second, questions designed to pull out this information would likely be unacceptable to all. Still, many, including myself, would agree that Batson should be expanded to include sexual orientation.

Typically, trial lawyers can get around a Batson challenge by simply finding a more innocuous reason to excuse a potential juror, even if the real reason for wanting a juror excluded does involve race or gender – or sexual orientation. Since peremptory strikes are otherwise discretionary, a trial lawyer can simply claim as an excuse the potential juror’s body language, wardrobe choice or a job-related bias, as in, “Your Honor, I believe Mr. Smith’s job might render him biased against the defendant in this case.”

That in SmithKline, the attorney confronted the issue of sexual orientation head-on – whether intentional or not — now forces the courts to confront the issue as well. Stay tuned.

SBNation.com features an in-depth interview with Shapiro Sher’s Ron Shapiro about the legendary sports figures of today. Click here to read the article.