JH v. Brown

JH (plaintiff) hired attorney Michael Ketchmark in connection with her assertion that Emil Brown (defendant) sexually assaulted her in January 2007. Ketchmark sent Brown a demand for $575,000 to settle JH’s claim. The demand advised that JH would sue Brown—thus publicizing her allegation—if he did not settle. Brown was under contract with the Kansas City Royals, which would pay him $3.45 million for the 2007 season. But he would receive only 25 percent of his salary if released within 15 days of opening day, and Brown was afraid that JH’s allegations, if made public, could jeopardize his position. Ketchmark and Brown’s lawyer, Gregory Leyh, negotiated a possible settlement, which resulted in correspondence regarding a deal in which Brown would make periodic payments to JH in exchange for, among other things, JH’s confidentiality. For example, on March 26, Ketchmark sent a draft agreement setting forth six essential terms, including confidentiality. On March 30, Leyh accepted some of these terms and rejected others; with respect to confidentiality, Leyh conditioned acceptance on the parties agreeing to specific language. On April 2, Ketchmark wrote Leyh that the parties had reached a settlement but warned that JH would sue for breach of contract if Brown defaulted and that she would not be bound by confidentiality in that event. Leyh responded that JH’s ability to sue for breach of contract, and her related confidentiality obligations, would depend on as-yet undrafted contract language. Ketchmark retorted that JH’s satisfaction with the confidentiality provision was “the only way we have a deal.” On April 9, Brown made a final offer, which Ketchmark rejected on April 11 while also asserting that the parties already had a valid settlement agreement. On April 12, Ketchmark (ignoring his April 11 rejection of the final offer) purported to accept that same offer. When Leyh rejected this supposed acceptance, JH sued to enforce the purported settlement agreement that she claimed was created by the March 30 and April 2 exchanges or, alternatively, on April 12. At trial, the court considered the parties’ correspondence and Leyh’s testimony that JH’s confidentiality obligation was an essential term for Brown and that the parties never reached agreement on that. The trial court ruled for Brown. JH appealed.