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It's a bird! It's a plane! It's a contract!

Following an appellate mandate, a federal judge in California granted summary judgment to Warner Bros. in late March, all but ending almost a decade of copyright litigation between the entertainment conglomerate and Laura Siegel Larson, heir of Superman co-creator Jerry Siegel. See Larson v. Warner Bros. Entm't, Inc., 2013 WL 1164434 at * 9 (C.D. Cal. March 20, 2013). In a counterclaim, Warner Bros. sought (and was granted) a declaratory judgment that an October 2001 letter from Larson's then-attorney to Warner Bros.'s then-general counsel constituted a binding contract regarding the rights to the Man of Steel, even though subsequent negotiations to formalize the agreement fell apart. In January, the Ninth Circuit considered the letter kryptonite to Larson's claims under California law because it "constituted an acceptance of terms negotiated between the parties," specifically and accurately reflecting "the material terms [counsel for both parties] had orally agreed to" during a conversation three days earlier, in which they "had resolved the last outstanding point in the deal" following "years of negotiations." See Larson v. Warner Bros. Entm't, Inc., --- F.App'x. ---, 2013 WL 1113259 at *1 (9th Cir. 2013).

Could this happen on the Commonwealth's side of Metropolis? Under Massachusetts law, "[i]t is axiomatic that to create an enforceable contract, there must be agreement between the parties on the material terms of that contract, and the parties must have a present intention to be bound by that agreement." Situation Mgmt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878 (2000). Not every term of the agreement needs to be specified precisely, but the writing must represent the parties' movement "beyond the stage of imperfect negotiation." See Lambert v. Fleet Nat'l Bank, 449 Mass. 119, 123 (2008), quoting Malouf, 430 Mass. at 878. A writing that anticipates a future, more formal agreement, binds the parties where they "have agreed upon either the material terms, or upon the 'formulae and procedures' that will provide the material terms at some future date." See Frishman v. Maginn, 75 Mass.App.Ct. 103, 110-11 (2009), citing Lafayette Place Assocs. v. Boston Redev. Auth., 427 Mass. 509, 518 (1998). However, language expressing the parties' intent to enter into a subsequent agreement can cut against their "present intention to be bound," particularly where they specify a deadline for execution of the subsequent agreement. See Dennis v. Kaskel, 79 Mass.App.Ct. 736, 742 (2011). Clearly, errors in memorializing preliminary agreements can leap years of subsequent drafting in a single bound. 

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