May 26, 2020

May 26, 2020

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New Jersey Federal Court Cautions Employers When Responding to Even Routine Demand Letters

Though it has long been a common practice for in-house counsel to respond to routine (and not so routine) demand letters, a recent New Jersey District Court decision should cause in-house counsel serious concern when doing so in the future. In Bourhill v. Sprint Nextel Corp., the Court allowed into evidence a portion of a letter written by an in-house attorney, prior to the action’s commencement, explaining why counsel’s position was factually meritless, but offering to entertain counsel’s invitation to resolve the matter so as to avoid litigation (the Court opinion is attached for your convenience). And this decision affects in-house counsel’s exchanges not only in the employment context, but also extends to all litigation.

Briefly, in Bourhill, approximately five months after plaintiff’s termination, Sprint received a letter from plaintiff’s counsel setting forth the reasons he believed plaintiff’s termination was unlawful. Counsel’s letter expressed that plaintiff would “prefer to resolve this situation informally, by means of an adequate compensatory settlement.”

Sprint’s in-house counsel responded with a two paragraph letter, which included the phrase “Confidential/For Settlement Purposes Only” on the subject line (“Response Letter”). The first paragraph explains the facts surrounding plaintiff’s termination and why it was lawful. The second paragraph inquires into specific relief plaintiff sought and invites further discussion.

Counsel’s exchanges did not lead to resolution, so plaintiff brought suit against Sprint advancing various violations of New Jersey’s Law Against Discrimination. Subsequently, on cross-motions for summary judgment, plaintiff appended, and relied upon, Sprint’s Response Letter. Citing Federal Rule of Evidence 408, Sprint moved to strike plaintiff’s summary judgment motion and his opposition to Sprint’s application to the extent it relied upon this letter. Rule 408 generally bars admission into evidence of settlement communications.

The District Court struck the second paragraph of the Response Letter, concluding that it implicates Rule 408 because it “contains an invitation to Bourhill to make a settlement proposal.” The Court, however, allowed plaintiff to rely upon and otherwise introduce the first paragraph of the Response Letter, finding that it does not “contain an actual compromise or a suggestion of a genuine willingness to resolve a dispute.”

Among other arguments, Sprint maintained that the first paragraph of the Response Letter should be struck because it “set[s] up, involve[s], or tie[s] into the invitation for a specific offer in the second paragraph.” Sprint further argued that “the purpose of that paragraph was to lay the foundation for Sprint’s position that Bourhill should expect little compensation in exchange for foregoing his claims.” The Court disagreed, determining that “the two paragraphs of the [Response Letter] are not logically connected,” and that “the letter reads as Sprint’s response to Bourhill’s demand letter and the merits articulated in Bourhill’s demand letter about … the plaintiff’s claims and separately, [responds to] a request from Bourhill to make a specific settlement offer.” Notably, though, without citing any Third Circuit or N.J. District Court cases, the Court opined that “federal courts routinely hold that demand letters and responses to such letters are not within the scope of Rule 408.”

Take Away

In-house counsel should be cautious in drafting responses to demand letters, always with an eye toward the letter’s potential use by opposing counsel if litigation ensues. Specifically, make certain that each paragraph explicitly incorporates, or directly depends upon, language respecting settlement. It is also always prudent to make sure such letters do not contain any facts or admissions you do not want resurfacing in litigation, as such letters may now find their way into the case. And though apparently not an issue in Bourhill, if such counsel letters are permissible in litigation, it follows that depositions of in-house counsel and other nettlesome discovery devices by plaintiffs will follow.

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About this Author

Robert Bernstein, GreenbergTraurig Law Firm, Labor and Employment Litigation Attorney

Rob Bernstein focuses his practice on labor and employment exclusively for management, with an emphasis in litigation and counseling. With over 30 years of experience, Rob has represented many multinational and domestic corporations in a wide range of industries. His practice extends to numerous jurisdictions across the United States, involving most workplace issues, including class and collective actions, employee benefits and trade secret litigation.

Prior to joining the firm, Rob chaired the National Labor and Employment Department Steering...

Michael Slocum, Greenberg Traurig Law Firm, New Jersey, Labor and Employment, Litigation Attorney
Of Counsel

Michael J. Slocum focuses his practice on labor and employment law, including the defense of discrimination, retaliation, wrongful discharge and whistleblower claims. Michael has represented employers in a broad array of industries, including health care and life sciences, pharmaceutical, private security, and retail, and has experience defending against both individual employee claims and class actions.

Prior to joining the firm, Michael practiced in the litigation department of a national firm focused on labor and employment matters in the life sciences industry, where he served as Editor of that firm's "False Claims Act Quarterly." He has experience representing clients at the trial and appellate levels in state and federal courts, as well as before a variety of state and federal administrative agencies.

Michael served as Law Clerk to the Honorable Donald S. Coburn of the New Jersey Appellate Division before entering private practice.

Michael has written and spoken numerous times on a multitude of issues facing employers in diverse industries. In addition to many client alerts and online articles, Michael was a contributing author to "Avoiding Liability for Unconscious Bias and Subtle Discrimination" published in the New Jersey Law Journal in December 2008, as well as a chapter on the False Claims Act in the 2010 edition of "Health Law and Compliance Update."  Michael was a speaker at a September 2008 seminar "The New Jersey FCA: Perspectives and Insight," as well as the firm's May 2013 "Taking Care of Business: An Annual Update on Labor and Employment Law" seminar. 


  • Labor and employment litigation and counseling

  • Federal and state False Claims Acts

  • Whistleblower claims