09-2609-cv
FCS Advisors, Inc. v. Fair Finance Company, Inc.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation "summary order"). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty-fourth day of May, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          BARRINGTON D. PARKER,
                               Circuit Judges,
          STEFAN R. UNDERHILL,
                               District Judge.*
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FCS ADVISORS, INC .,

                               Plaintiff-Counter-Defendant-Appellee,

          v.                                                                               No. 09-2609-cv

FAIR FINANCE COMPANY , INC .,

                               Defendant-Counter-Claimant-Appellant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x




          *
           The Honorable Stefan R. Underhill of the United States District Court for the District of Connecticut, sitting
by designation.
                                                                    1
FOR DEFENDANT-CROSS-
CLAIMANT-APPELLANT:                              GREGORY E. GALTERIO (Ira N. Glauber, of counsel),
                                                 Jaffe & Asher, LLP, New York, NY.

FOR PLAINTIFF-CROSS-
DEFENDANT-APPELLEE:                              ROGER E. BARTON (Randall L. Rasey, of counsel),
                                                 Barton Barton & Plotkin LLP, New York, NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Denny Chin, Judge).

      UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED, in part,
and VACATED, in part.

         Defendant-appellant Fair Finance Company, Inc. (“FairFin” or “defendant”) appeals from a
judgment of the District Court entered on May 20, 2009 and amended on June 10, 2009, granting
summary judgment to plaintiff FCS Advisors, Inc. d/b/a Brevet Capital Advisors (“Brevet” or
“plaintiff”) on plaintiff’s breach of contract claim. The District Court entered judgment against
defendant in the amount of $1,716,248.48, which included post-judgment interest calculated at a rate
of 9% per annum in accordance with New York law. In this order, we affirm the District Court’s
entry of summary judgment in favor of plaintiff. By a separate per curiam opinion entered today, we
vacate the judgment only insofar as it applied New York law to the calculation of post-judgment
interest.

         With respect to the entry of summary judgment, defendant argues primarily that the District
Court improperly resolved the following issues of fact in plaintiff’s favor: (1) whether FairFin’s
conduct amounted to a breach of an exclusivity clause contained in a letter of intent (“LOI”)
entered into by the parties; (2) if there was a breach, whether plaintiff was entitled to the full “break-
up” fee provided for in the LOI or to a reduced fee provided for in a handwritten addendum; and
(3) whether the “break-up” fee was an unenforceable penalty under New York law. We assume the
parties’ familiarity with the remaining factual and procedural history of the case.

        First, with respect to the question of breach, we are satisfied that undisputed evidence in the
record demonstrates that FairFin breached the exclusivity provision of the LOI by at least July 2,
2007—well within the period during which it was required to deal exclusively with Brevet. The LOI
provided that “[n]either FairFin, its affiliates nor any of its shareholders, directors, officers,
employees, agents or representatives, will solicit, encourage or entertain proposals from, or enter
into negotiations with, or furnish any information to any other person or entity regarding the

                                                    2
possible Financing Transaction or any part or element thereof.” J.A. 39. Notwithstanding this
language, on June 28, 2007, FairFin executives received an email about a competing financing
transaction and responded on July 2, 2007, by requesting a term sheet outlining that transaction. We
agree with the District Court that “[u]nder the plain language of the LOI” this conduct constitutes
“at a minimum, encouraging or entertaining proposals for financing.” FCS Advisors, Inc. v. Fair Fin.
Co., No. 07 Civ. 6456, 2009 WL 1403869, at *8 (S.D.N.Y. May 19, 2009) (internal quotation marks
and alterations omitted). Accordingly, there is no genuine issue of material fact with respect to
whether FairFin’s conduct amounted to a breach.

        Moreover, the fact that the transaction between Brevet and FairFin contemplated by the
LOI was never consummated does not alter our analysis. Defendant argues that the period of
exclusivity could be construed as terminating if the transaction between Brevet and FairFin did not
close by July 6, 2007. Even if we were to agree with that construction, FairFin clearly was in breach
of the exclusivity provision before July 6, 2007, as noted above. Therefore, under the terms of the
LOI, the $1.5 million break-up fee became due and payable to Brevet on February 12, 2008, when
FairFin completed another transaction in lieu of the transaction with Brevet.

        Second, we agree with the District Court that Brevet was entitled to the full-break up fee,
and not the reduced amount provided for in the handwritten addendum. See FCS Advisors, 2009 WL
1403869, at *10. The addendum allowed for a reduced break-up fee if (1) FairFin closed on a
particular financing transaction—which was under consideration at the time Brevet and FairFin
entered into the LOI—with a company called Summit Consumer Fund, L.P. (“Summit”), and (2)
FairFin reasonably believed Brevet would be unable to close on the Brevet-FairFin financing
transaction by July 6, 2007. FairFin ultimately did close on the Summit transaction but later closed
on another transaction that the District Court properly concluded was in lieu of the Brevet
transaction. Although FairFin’s closing on the Summit transaction might only have entitled Brevet
to the reduced break-up fee, FairFin’s completion of the second, more comprehensive financing
transaction in February 2008 rendered it liable for the full $1.5 million break-up fee.

         Finally, we agree with the District Court that the $1.5 million break-up fee—a form of
liquidated damages—was not unenforceable under New York law. Under New York law, “[t]he
party opposing enforcement of a liquidated damages provision bears the burden of proving that the
provision operates as a penalty.” FCS Advisors, 2009 WL 1403869, at *11 (citing JMD Holding Corp.
v. Congress Fin. Corp., 828 N.E.2d 604, 609 (N.Y. 2005)). As the District Court explained, “FairFin
has simply not met its burden of showing that Brevet’s actual damages could be readily determined
or that the $1.5 million break-up fee is ‘plainly disproportionate’ to Brevet’s losses.” Id. at *11.
FairFin has therefore not met its burden of demonstrating that the break-up fee operated as an
unenforceable penalty.


                                                  3
                                         CONCLUSION

        We have considered all of defendant’s remaining arguments with respect to the District
Court’s entry of summary judgment and find them to be without merit. For the foregoing reasons,
the judgment of the District Court is AFFIRMED insofar as it entered summary judgment in favor
of plaintiff. We vacate the judgment insofar as it applied New York law to the calculation of post-
judgment interest for the reasons set forth in the separate per curiam opinion entered herewith.


                                              FOR THE COURT,
                                              Catherine O’Hagan Wolfe, Clerk of Court




                                                 4
