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Really? $1.5 Million For Texting? Yes, Really.

If your life is anything like mine, you were forced into text messaging kicking and screaming. 

Dexterity in my thumb and fingers was never honed by endless hours on a couch with an X-Box controller playing Madden or Mortal Combat. I would look at my phone's key board and then at my fat thumbs and simply shake my head in surrender. 


But I quickly learned that if I wanted to communicate with my three kids (none of whom are kids anymore...) easily or, in reality, at all, I had better get with the program. Predictive text still haunts me but I've learned to thumb my way through "how was ur day?" as clumsily as the next old guy. I'm not quite at the point of texting my daughter across the dinner table (she's tried), but I do communicate primarily by email with my staff a few steps from my office door and keep up with friends and colleagues on social media messaging. Perhaps the clearest sign of my submission to the inevitable is that I have come to dislike the drudgery of checking voice mail. Remember voice mail?

Yes, between email and texting and IM and social media messaging in its varied forms, the number of ways to communicate without ever actually speaking is astonishing.

And it can lead to big problems when combined with continuing contract discussions.

Just ask the parties in CX Digital Media, Inc. v. Smoking Everywhere, Inc. a recent Florida case in which a few seemingly off-the-cuff and quite informally short instant messages were deemed contract modifications. The instant messages...err... contract "modifications" cost Smoking Everywhere, Inc. $1.5 million buckaroos, enough dough to take this texting, IMing, emailing and messaging stuff seriously in your business dealings.

Essentially, much of the dispute focused on what had been negotiated as a cap on sales commissions contained in the initial contract. However, during an otherwise benign instant message exchange between representatives of the parties, the CX rep mentioned, "We can do 2000 orders/day by Friday if I have your blessing." This was ten times the 200 per day order cap on which Smoking had agreed to pay commissions. But when the Smoking rep replied saying, "NO LIMIT," CX was obviously jazzed and responded with "Awesome!"

And like that the contract was modified.

There were additional and complex legal issues playing a part in the Court's ultimate determination but the message (pun intended) is this: any communications between contracting parties may potentially be considered modifications to the original agreed terms. Just because you are not sitting around a massive cherry wood table in some glass tower conference room, lawyers in tow, does not mean your text or email won't be considered a contract offer or counteroffer or an acceptance of either.

So text until your thumbs get blisters but be careful. Words matter.

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