Second Circuit: “As Of”, in Settlement Agreement, Means “On”

Ordinarily on this blog I write about substantive and procedural legal issues arising in employment and personal injury litigation. But recently, the U.S. Court of Appeals for the Second Circuit issued a decision (more precisely, a “Summary Order”) that is instructive on an issue that potentially arises in litigation of all types, namely, the interpretation of a settlement agreement.

Specifically, in Bank v. Verde Energy USA, Inc., 2021 WL 4097313 (2d Cir. Sept. 9, 2021) (Summary Order), the court construed a settlement agreement’s use of the term “as of” in a settlement agreement.

Here are the facts, as summarized by the Court:

Appellant Todd Bank, an attorney proceeding pro se, sued Verde Energy USA, Inc.on behalf of himself and two proposed classes for alleged violations of state and federal laws governing telemarketing calls. The parties quickly reached a settlement agreement under which Bank agreed, in exchange for a payment, to dismiss the action and release “any and all claims” he had against Verde “as of” the date of the agreement, which was March 26, 2019. Bank did not dismiss the action and filed an amended complaint concerning a telemarketing call he received on March 26. [Cleaned up.]

From the Order:

Bank’s amended complaint asserted claims arising out of a call he received on March 26, 2019. However, in the “release of claims” provision of the settlement agreement, he agreed to release Verde from “any and all claims … [he had] or might have against Verde Energy as of the date of [the] Agreement,” which the parties agree was March 26, 2019. The district court correctly granted summary judgment to Verde because this release provision unambiguously applies to claims arising on March 26, barring the claims in his amended complaint.

Bank’s position that “as of” March 26 means “until the moment that March 25 becomes March 26” is not reasonable. The case on which Bank relies, in his reply brief, supports Verde’s position. See Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872, 875-76 (7th Cir. 2000) (finding that a statute required debt collectors to state the amount due “on” the date a letter was sent and holding that a letter stating the amount due “as of” that date would satisfy this requirement). Verde’s position finds support in several dictionaries and court decisions, and we agree with the district court that “as of [March 26]” unambiguously refers to the time period up to and including March 26.[] Because the term “as of” in the context of this agreement was unambiguous, we do not consider extrinsic evidence of the parties’ intent.

The court cited, among other sources, Merriam-Webster and Oxford Dictionary definitions of the phrase “as of.”

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