Fuller Landau Advisory Services Inc v. Gerber Finance Inc.
Filing
33
OPINION AND ORDER: re: 15 FIRST MOTION to Dismiss Complaint filed by Gerber Finance Inc. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED IN PART. Plaintiff's claims for breach of the duty of good faith a nd for an equitable accounting are dismissed. With respect to Plaintiff's claim for breach of contract, summary judgment for Defendant is granted in part and denied in part. Within three weeks of the date of this order, the parties shall jointly submit a proposed schedule for targeted Rule 56(d) discovery on Plaintiff's breach of contract claim. The Clerk of Court is directed to close the motion at Docket Number 15. SO ORDERED. (Signed by Judge J. Paul Oetken on 8/07/2018) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FULLER LANDAU ADVISORY
SERVICES INC.,
Plaintiff,
17-CV-6027 (JPO)
OPINION AND ORDER
-vGERBER FINANCE INC.,
Defendant.
J. PAUL OETKEN, District Judge:
Plaintiff Fuller Landau Advisory Services Inc. brings this action against Defendant
Gerber Finance Inc. for breach of contract, breach of the implied covenant of good faith and fair
dealing, and an accounting. Defendant moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), and the Court converted that motion under Federal Rule of Civil
Procedure 12(d) into one for summary judgment. For the reasons that follow, Defendant’s
motion for summary judgment is granted in part.
I.
Background 1
Plaintiff Fuller Landau Advisory Services Inc. (“Fuller”) provides, among other things,
investment banking advisory services relating to corporate transactions. (Dkt. No. 1 (“Compl.”)
¶ 7.) Defendant Gerber Finance Inc. (“Gerber”) is a financial services firm. (Compl. ¶ 8.)
During the relevant time period, Gerber was owned by five shareholders: Investec 1 Limited,
1
Ordinarily, on a motion to dismiss, the Court would take as true the facts set forth
in the Complaint. Here, because the Court is converting Defendant’s motion into one for
summary judgment, the Court also relies on additional evidence submitted by the parties in
connection with Defendant’s motion. Unless otherwise noted, these facts are not subject to a
genuine dispute.
1
Juge Holdings Inc., Catnap Properties Inc., Justin Wessels, and Gerald Joseph, who also served
as Gerber’s Chief Executive Officer. (Compl. ¶¶ 10−11.)
Gerber’s shareholders wanted to sell the company, and around June 2016, Gerber
retained Fuller to provide financial advisory services in connection with Gerber’s potential sale.
(Dkt. No. 21, Ex. 1 (“Fee Agreement”) at 1; Compl. ¶ 12.) The parties agreed that if Gerber sold
its business, Gerber would compensate Fuller for its services by paying a “Success Fee.” (Fee
Agreement ¶ 6.) The Success Fee would be equal to 2% of the “minimum value” 2 of the
“Transaction Amount” plus 1% of any Transaction Amount above the minimum value. (Id.) In
relevant part, the Fee Agreement defines the Transaction Amount as follows:
[T]he aggregate value of all voting and non-voting common equity
of the Company, calculated on a fully diluted basis and based upon
the purchase price at which the Transaction takes place, plus the
aggregate amount of: (i) any indebtedness, preferred shares and
other securities outstanding at the time of the Transaction assumed
by the buyer . . . .
(Fee Agreement ¶ 7.)
Pursuant to the Fee Agreement, Fuller introduced a potential buyer, Trade Finance
Solutions (TFS Canada Bond Series, Inc.) (“TFS” or “Buyer”), to Gerber. (Compl. ¶ 28.) In
January 2017, Global Fund Holdings Corp., an affiliate of TFS, purchased all of the outstanding
shares of Gerber stock form the former shareholders. (Compl. ¶ 30; Dkt. No. 26, Ex. B at 1.)
Prior to the sale, Gerber owed a debt to a syndicate of lenders led by Bank of
America/Merrill Lynch (“the Lenders”). (Compl. ¶ 15; Dkt. No. 21, Ex. 2 at 1.) Gerber’s credit
2
The “minimum value” is a target value for the sale set forth in the Fee Agreement.
The Court previously granted Gerber’s request to redact the dollar value of the minimum value
of the company. (Dkt. No. 18.). See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d
Cir. 2006).
2
agreement with the Lenders had a “change of control” clause, under which a sale of 51% or more
of Gerber’s stock would trigger a default. (Dkt. No. 21 ¶ 13; Dkt. No. 21, Ex. 2 at 4, 60.)
Plaintiff alleges that when TFS purchased Gerber, TFS also convinced the Lenders to
allow the change in control to occur without triggering a default of Gerber’s loan obligations.
(Compl. ¶ 30.) According to Plaintiff, the Lenders agreed to waive enforcement of the changein-control clause because all of Gerber’s outstanding indebtedness to the Lenders “was assumed
by and transferred to” TFS and its affiliates. (Compl. ¶ 31.) The parties dispute whether TFS
actually “assumed” Gerber’s indebtedness to the Lenders.
It is undisputed, however, that TFS’s affiliate entered into a limited guaranty with Bank
of America (on behalf of all of the Lenders). (Dkt. No. 21, Ex. 4 at 1.) According to Plaintiff,
TFS “guaranteed to the Lenders the due and timely payment” of Gerber’s indebtedness as of the
closing date of Gerber’s sale. (Dkt. No. 21 ¶ 20.) As collateral securing its guaranty, TFS
granted the Lenders a security interest in all of the Gerber shares it acquired. (Id.; Dkt. No. 21,
Ex. 5.) Plaintiffs also contend that TFS “became a party to various agreements” with the
Lenders “pursuant to an amendment to [Gerber’s] credit agreement.” (Dkt. No. 22 at 3.)
After the TFS purchase, Gerber paid Fuller a Success Fee based on the purchase price of
the shares. (Compl. ¶ 35.) Fuller contends, however, that it is also entitled to a Success Fee
based on the value of the debt that Gerber owed to the Lenders at the time of the TFS purchase.
(Compl. ¶¶ 33, 35, 37.) Gerber has refused to pay a Success Fee based on that debt. (Compl.
¶ 36.) Gerber has also allegedly refused to provide Fuller with relevant information and
documents relating to TFS’s guaranty agreement with the Lenders. (Compl. ¶ 38.)
In August 2017, Fuller brought this suit against Gerber for breach of contract, breach of
the implied covenant of good faith and fair dealing, and an accounting. (Compl. ¶¶ 40−60.)
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Defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted. (Dkt. No. 15.) In its opposition brief, Plaintiff argued
that because Defendant’s motion relied on matters outside the pleadings, the motion should be
converted into a motion for summary judgment pursuant to Rule 12(d). (Dkt. No. 22 at 12−14.)
On May 15, 2018, the Court gave the parties notice that the motion would be treated as one for
summary judgment under Rule 56 and permitted the parties an opportunity to file any relevant
supplementary materials. (Dkt. No. 28.)
II.
Legal Standard
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
material if it “might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if, considering the record as
a whole, a rational jury could find in favor of the non-moving party. Ricci v. DeStefano, 557
U.S. 557, 586 (2009).
On summary judgment, the party bearing the burden of proof at trial must provide
evidence on each element of its claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 322–
23 (1986). “If the party with the burden of proof makes the requisite initial showing, the burden
shifts to the opposing party to identify specific facts demonstrating a genuine issue for trial, i.e.,
that reasonable jurors could differ about the evidence.” Clopay Plastic Prods. Co. v. Excelsior
Packaging Grp., Inc., No. 12 Civ. 5262, 2014 WL 4652548, at *3 (S.D.N.Y. Sept. 18, 2014)
(citing Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 250–51). The court views all “evidence in
the light most favorable to the non-moving party,” and summary judgment may be granted only
if “no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64
4
F.3d 77, 79 (2d Cir. 1995) (second quoting Lunds, Inc. v. Chem. Bank, 870 F.2d 840, 844 (2d
Cir. 1989)).
III.
Discussion
Plaintiff alleges three causes of action: (1) breach of contract; (2) breach of the duty of
good faith and fair dealing; and (3) equitable accounting. The Court addresses each in turn.
A.
Breach of Contract
Under New York law, 3 the elements of a breach of contract claim are “(1) the existence
of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract
by the defendant, and (4) damages.” Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr. Co.
of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (quoting Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d
Cir. 1996)).
The parties’ dispute centers on the third element: whether Defendant breached the Fee
Agreement by failing to include the value of its outstanding bank debt to the Lenders in the
Success Fee it paid to Fuller. Under the Fee Agreement, Gerber was obligated to include the
debt only if it was part of the “Transaction Amount,” which is defined to include “any
indebtedness, preferred shares and other securities outstanding at the time of the Transaction
assumed by the buyer.” (Fee Agreement ¶ 7.) Therefore, the core issue can be framed even
more specifically: Did TFS assume any indebtedness when it bought Gerber?
As a threshold matter, the Court must determine whether the phrase “any indebtedness . .
. assumed by the buyer” is ambiguous. See, e.g., Eternity Glob. Master Fund Ltd., 375 F.3d at
177−78; see also JA Apparel Corp. v. Abboud, 568 F.3d 390, 396 (2d Cir. 2009) (“[T]he
3
The fact that “the parties agree that New York law controls . . . is sufficient to
establish choice of law.” Fed. Ins. Co. v. Am. Home Assurance Co., 639 F.3d 557, 566 (2d Cir.
2011).
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question of whether a written contract is ambiguous is a question of law for the court.”). A
contract term is unambiguous “if it has ‘a definite and precise meaning, unattended by danger of
misconception in the purport of the [contract] itself, and concerning which there is no reasonable
basis for a difference of opinion.’” JA Apparel Corp., 568 F.3d at 396 (alteration in original)
(quoting Breed v. Ins. Co. of N. Am., 46 N.Y.2d 351, 355 (1978)). In contrast, an ambiguous
contract term is “capable of more than one meaning when viewed objectively by a reasonably
intelligent person who has examined the context of the entire integrated agreement and who is
cognizant of the customs, practices, usages and terminology as generally understood in the
particular trade or business.” Id. at 396–97 (quoting Revson v. Cinque & Cinque, P.C., 221 F.3d
59, 66 (2d Cir. 2000)).
To determine whether a contract term is ambiguous, courts “look[] within the four
corners of the document [and] not to outside sources.” Id. at 396 (quoting Kass v. Kass, 91
N.Y.2d 554, 566 (1998)); see also W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 162
(1990) (“Evidence outside the four corners of the document as to what was really intended but
unstated or misstated is generally inadmissible to add to or vary the writing.”). “Language
whose meaning is otherwise plain does not become ambiguous merely because the parties urge
different interpretations in the litigation.” JA Apparel Corp., 568 F.3d at 396 (quoting Hunt Ltd.
v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir. 1989)).
“If the contract is unambiguous, its meaning is . . . a question of law for the court to
decide.” JA Apparel Corp., 568 F.3d at 397. In interpreting the contract, the court should
“consider its ‘particular words . . . in the light of the obligation as a whole and the intention of
the parties as manifested thereby’” and without reference to extrinsic evidence of the parties’
intent. Id. (brackets omitted) (quoting Kass, 91 N.Y.2d at 566).
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Turning to the parties’ Fee Agreement, the Court concludes that the term
“indebtedness . . . assumed by the buyer” has an unambiguous meaning. The two key words,
“indebtedness” and “assumed,” each have a definite and precise meaning when considered in the
context of the entire agreement and the usages and terminology of the trade. First,
“indebtedness” simply means “[t]he quality, state, or condition of owing money.” Indebtedness,
Black’s Law Dictionary (10th ed. 2014). Similarly, in the specific context of transactions
involving indebtedness, “assume” also has a definite and precise meaning: to “tak[e] (esp.
someone else’s debt or other obligation) for or on oneself.” Assumption, Black’s Law Dictionary
(10th ed. 2014). In other words, when a party “assumes” the “indebtedness” of another, he
becomes directly liable for the debt himself. Cf. In re Novon Int’l, Inc., No. 98 Civ. 677, 2000
WL 432848, at *3 (W.D.N.Y. Mar. 31, 2000) (explaining that “to assume [a] license agreement”
is to “to step into [the licensor’s] shoes”).
Having resolved the threshold question of ambiguity, the Court must now apply the
contractual language to answer the legal question of whether the Buyer assumed any of Gerber’s
indebtedness. Plaintiff alleges that “all outstanding indebtedness owed by Gerber to the Lenders
. . . was assumed by and transferred to the Buyer and to [its] affiliates.” (Compl. ¶ 31.) The
undisputed facts, however, reveal that these allegations are based on a faulty legal premise.
According to an affidavit from Plaintiff’s managing director, in the course of purchasing
Gerber, the Buyer entered into a guaranty with Lenders which guaranteed timely payment of all
debt outstanding at the time of the sale. (Dkt. No. 21 ¶ 20.) The Buyer secured this guaranty by
granting the Lenders a security interest in all of Buyer’s Gerber shares and subordinating
Gerber’s other indebtedness to its debt to Lenders. (Id.) In the operative provision of the
guaranty, the Buyer guaranteed “punctual payment” of any indebtedness owed by Gerber to
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Lenders under their credit agreement. (Dkt. No. 21, Ex. 4 § 1.) Notably, the stock purchase
agreement between Gerber and the Buyer does not mention Gerber’s indebtedness to the
Lenders. (See Dkt. No. 26, Ex. B.) Therefore, as stated by Bank of America’s principal loan
officer for the Gerber loan, and consistent with New York law and common law, 4 “[t]he
obligation to repay the Loan remained with and continues to remain with Gerber and its
subsidiary.” (Dkt. No. 29 ¶ 9.)
To the extent that Plaintiff contends that the Buyer assumed Gerber’s indebtedness when
it “guaranteed payment of the . . . debt to the lenders” (Dkt. No. 22 at 3), that argument fails as a
matter of law. Simply put, a guaranty does not constitute an assumption of debt. Under New
York law, a guarantee is “an agreement to pay a debt owed by another which creates a secondary
liability and thus is collateral to the contractual obligation. The principal debtor is not a party to
the guaranty and the guarantor is not a party to the principal obligation.” Shire Realty Corp. v.
Schorr, 390 N.Y.S.2d 622, 625 (App. Div. 2d Dep’t 1977); see also N.Y.C. Dep’t of Fin. v. Twin
Rivers, Inc., 920 F. Supp. 50, 52 (S.D.N.Y. 1996) (“A guaranty is a collateral promise to answer
for the payment of a debt or obligation of another, in the event the first person liable to pay or
perform the obligation fails.”). Where, as here, parties execute a guarantee of payment rather
than of collection (see Dkt. No. 21, Ex. 4 § 1), the “guarantor . . . undertakes an unconditional
guaranty that the debtor will pay on the debt. If for some reason, the debtor fails to make
4
“Under both New York law and traditional common law, a corporation that
purchases the assets of another corporation is generally not liable for the seller’s liabilities.” Xue
Ming Wang v. Abumi Sushi Inc., 262 F. Supp. 3d 81, 87 (S.D.N.Y. 2017) (quoting New York v.
Nat’l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir. 2006)). “New York recognizes four
common-law exceptions” to that rule: “(1) a buyer who formally assumes a seller’s debts; (2)
transactions undertaken to defraud creditors; (3) a buyer who de facto merged with a seller; and
(4) a buyer that is a mere continuation of a seller.” Id. (quoting Cargo Partner AG v. Albatrans,
Inc., 352 F.3d 41, 45 (2d Cir. 2003)).
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payment to the creditor, he can proceed directly against the guarantor.” N.Y.C. Dep’t of Fin.,
920 F. Supp. at 53. Nonetheless, unlike an assumption of debt, under which a party steps into
the shoes of the debtor and takes on his liability directly, a guaranty of payment does not make
the guarantor liable unless a triggering event occurs (i.e., the primary debtor fails to timely pay).
Because Buyer’s guaranty of Gerber’s debt did not constitute an assumption of debt
under the contract as a matter of law, the Court grants Defendant summary judgment on that
issue: Defendant did not breach the Fee Agreement by failing to pay Plaintiff a Success Fee
based on the value of the guaranteed indebtedness.
Upon receiving notice of the Court’s intention to construe Defendant’s motion as one for
summary judgment, Plaintiff also requested that the Court defer ruling on the motion in order to
allow Plaintiff time to conduct targeted discovery pursuant to Federal Rule of Civil Procedure
56(d). Rule 56(d) requires the non-movant to identify the specific areas of discovery that it
needs to respond to the movant’s factual representations. See Campbell v. Chadbourne & Parke
LLP, No. 16 Civ. 6832, 2017 WL 2589389, at *3 (S.D.N.Y. June 14, 2017). Here, Plaintiff
claims that it needs discovery to determine “the amounts of indebtedness as of the date of the
closing which were assumed and/or paid-off by the Buyer; and Gerber’s and Buyer’s agreements
and understandings with the Lenders who consented to the transaction based on the Buyer’s
assumption of the bank debt.” (Dkt. No. 31-1 ¶ 3.) Although the Court rejects Plaintiff’s
original theory of liability based on the guaranty, it is conceivable that Gerber or a third party
possesses evidence demonstrating that the Buyer otherwise agreed to directly pay the debt (i.e.,
9
assumed the debt). 5 Therefore, the Court will permit targeted discovery on whether the Buyer
assumed any debt. 6
To the extent that Plaintiff argues the Buyer assumed Gerber’s debts beyond the guaranty
agreement, summary judgment is denied, without prejudice to renewal following targeted
discovery under Rule 56(d).
B.
Breach of Implied Covenant of Good Faith and Fair Dealing
Under New York law, all contracts contain an implied covenant of good faith and fair
dealing, which encompasses “any promises which a reasonable person in the position of the
promisee would be justified in understanding were included.” Dalton v. Educ. Testing Serv., 87
N.Y.2d 384, 389 (1995) (quoting Rowe v Great Atl. & Pac. Tea Co., 46 N.Y.2d 62, 69 (1978)).
This implied covenant includes a “pledge that ‘neither party shall do anything which will have
5
Plaintiff’s managing director also avers, apparently for the first time, that the
Buyer paid off “other loans and indebtedness of Gerber” which were not covered by the
guarantee. (Dkt. No. 31-1 ¶ 5.) In this same declaration, Plaintiff argues that Defendant “also
wrongfully refused to pay Fuller’s commission under the Agreement” based on these facts. (Id.)
On this basis, Plaintiff shall be permitted targeted discovery on whether the Buyer assumed any
debts of Gerber’s.
Plaintiff further contends that the Buyer “became a party to various agreements” with the
Lenders “pursuant to an amendment to [Gerber’s] credit agreement.” (Dkt. No. 22 at 3.) At this
point, Plaintiff has provided no evidence to support this contention. The Court reserves
judgment on the question whether it would constitute an assumption of debt if Plaintiff can
establish after discovery that the Buyer actually became a party to a credit agreement, rather than
just the guaranty agreement, with Lenders.
6
In addition to its argument about what it means to “assume” indebtedness,
Defendant also argues that Gerber’s debts to the Lenders do not constitute “indebtedness” under
the unambiguous meaning of that contractual term. (Dkt. No. 17 at 13−15.) Contrary to
Defendant’s argument, and as explained above, indebtedness is a broad term meaning simply
“debt owed” and is not limited to debts “akin to securities, like notes, bonds or debentures.”
(Dkt. No. 17 at 13.) The Court will not give the term “indebtedness” the unnaturally narrow
reading suggested by Defendant based on the fact that “indebtedness” appears adjacent to the
terms “preferred shares” and “other securities outstanding” in the Fee Agreement. (See id.)
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the effect of destroying or injuring the right of the other party to receive the fruits of the
contract.’” Id. (quoting Kirke La Shelle Co. v Armstrong Co., 263 N.Y. 79, 87 (1933)).
“A cause of action to recover damages for breach of the implied covenant of good faith
and fair dealing cannot be maintained where the alleged breach is ‘intrinsically tied to the
damages allegedly resulting from a breach of the contract.’” Deer Park Enters., LLC v. Ail Sys.,
Inc., 870 N.Y.S.2d 89, 90 (App. Div. 2d Dep’t 2008) (quoting Canstar v Jones Constr. Co., 622
N.Y.S.2d 730, 731 (App. Div. 1st Dep’t 1995)). Here, Plaintiff alleges that Defendant has
breached its duty of good faith and fair dealing “[b]y failing and refusing to pay amounts of
Success Fee due to Plaintiff attributable to the Transferred Indebtedness.” (Compl. ¶ 51.)
Because “the conduct and resulting injury alleged” in the second cause of action for breach of the
covenant of good faith and fair dealing “are identical to those alleged in the first . . . cause[] of
action alleging breach of contract,” the second cause of action must be dismissed as duplicative.
Deer Park Enters., 870 N.Y.S.2d at 90. 7
C.
Equitable Accounting
Plaintiff’s third cause of action seeks an accounting concerning any indebtedness
transferred to the Buyer. (Compl. ¶¶ 54–60.) “Under New York law, there are four elements to
a claim for equitable accounting: ‘(1) a fiduciary relationship (2) entrustment of money or
property (3) no other remedy and (4) a demand and refusal of an accounting.’” Romain v.
7
In opposition to Defendant’s motion to dismiss, Plaintiff argues that Defendant
also breached the duty of good faith and fair dealing by failing “to provide sufficient evidentiary
information concerning the Transaction.” (Dkt. No. 22 at 11.) This refashioned theory is
insufficient to save Plaintiff’s second cause of action from dismissal. Not only does this theory
depart from the allegations in the Complaint, but also Plaintiff will presumably be able to obtain
any relevant evidence through the targeted discovery discussed above. See, e.g., Sirico v. F.G.G.
Prods., Inc., 896 N.Y.S.2d 61, 66 (App. Div. 1st Dep’t 2010) (noting that a plaintiff may be able
to obtain accounting information through discovery, even if its claim for equitable accounting
fails).
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Seabrook, No. 16 Civ. 8470, 2017 WL 6453326, at *6 n.8 (S.D.N.Y. Dec. 15, 2017) (quoting In
re Guardianship of Kent, 729 N.Y.S.2d 352, 353 (N.Y. Sup. Ct. 2001)); see also Soley v.
Wasserman, No. 08 Civ. 9262, 2013 WL 6388401, at *5 (S.D.N.Y. Dec. 6, 2013)).
Defendant contends that Plaintiff’s claim for an accounting must be dismissed for failure
to allege a fiduciary relationship between the parties. (Dkt. No. 17 at 17.) Plaintiff does not
meaningfully respond to this argument, nor does it otherwise identify any fiduciary relationship.
Accordingly, Plaintiff’s claim for an accounting must be dismissed as a matter of law. See
Sirico, 896 N.Y.S.2d at 66 (holding that “Plaintiffs lack the requisite fiduciary relationship with
[Defendant] that is a predicate to an equitable claim for an accounting” and therefore dismissal
of that claim was proper).
IV.
Conclusion
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED IN
PART. Plaintiff’s claims for breach of the duty of good faith and for an equitable accounting are
dismissed. With respect to Plaintiff’s claim for breach of contract, summary judgment for
Defendant is granted in part and denied in part.
Within three weeks of the date of this order, the parties shall jointly submit a proposed
schedule for targeted Rule 56(d) discovery on Plaintiff’s breach of contract claim.
The Clerk of Court is directed to close the motion at Docket Number 15.
SO ORDERED.
Dated: August 7, 2018
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge
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