     11-126-cv
     Terra Firma Investments v. Citigroup

1

2                         UNITED STATES COURT OF APPEALS

3                              FOR THE SECOND CIRCUIT

4                                 August Term 2012

5             (Argued: October 4, 2012       Decided: May 31, 2013)

6                             Docket No. 11-126
7    -----------------------------------------------------x

8    TERRA FIRMA INVESTMENTS (GP) 2 LIMITED, TERRA FIRMA
9    INVESTMENTS (GP) 3 LIMITED,

10         Plaintiffs-Appellants,

11                               -- v. --

12   CITIGROUP INC., CITIGROUP GLOBAL MARKETS LIMITED,
13   CITIGROUP GLOBAL MARKETS INC., CITIBANK, N.A.,

14         Defendants-Appellees.

15   -----------------------------------------------------x

16   B e f o r e :     WALKER, LYNCH, and LOHIER, Circuit Judges.

17         Plaintiffs-Appellants Terra Firma Investments (GP) 2 Ltd. and

18   Terra Firma Investments (GP) 3 Ltd. appeal from the September 14,

19   November 2, and December 9, 2010 written orders and the November 1,

20   2010 oral order of the District Court for the Southern District of

21   New York (Rakoff, Judge) granting judgment in favor of Defendants-

22   Appellees Citigroup Inc., Citigroup Global Markets Ltd., Citigroup

23   Global Markets Inc., and Citibank, N.A. Because the district

24   court’s jury instructions were based on an inaccurate understanding

25   of the relevant English law, the case must be VACATED and REMANDED

26   for a new trial.
1         Judge Lohier joins the opinion of the Court and files a

2    concurring opinion.

3

 4                                  DAVID BOIES (Christopher E. Duffy,
 5                                  Jonathan H. Sherman, on the brief),
 6                                  Boies, Schiller & Flexner LLP, New
 7                                  York, NY, for Plaintiffs-Appellants.
 8
 9                                  JAY COHEN (Brad S. Karp, Theodore V.
10                                  Wells, Jr., John F. Baughman, on the
11                                  brief), Paul, Weiss, Rifkind,
12                                  Wharton & Garrison LLP, New York,
13                                  NY, for Defendants-Appellees.
14
15

16   JOHN M. WALKER, JR., Circuit Judge:

17        Absent fundamental error, we are loath to overturn a jury

18   verdict in a civil case. Jury trials are expensive, in time and

19   resources, both for the litigating parties and for society as a

20   whole. We are particularly reluctant to overturn a jury verdict

21   when, as here, it appears that both parties have had a fair bite at

22   the proverbial apple.

23        The basic conflict in this case is of the he-said-she-said

24   variety which, under our system of law, juries usually resolve. The

25   principal actors on both sides provided their version of events,

26   exceptional trial lawyers marshaled and clarified the evidence, and

27   a gifted judge presented the issue to the jury for its evaluation.

28        In its instructions to the jury, however, the district court

29   erred in its description of the English burden-shifting rule.

30   Whether that error actually affected the jury’s determination is

                                      2
1    unknowable. See Cweklinsky v. Mobil Chem. Co., 364 F.3d 68, 77 (2d

2    Cir. 2004) (noting that when an appellate court cannot “determine

3    with certainty that the district court’s erroneous instruction did

4    not affect the jury’s verdict, [it] cannot deem that error

5    harmless”). Under our precedent, it is accepted that an error in

6    instructing a jury on the burden of proof is ordinarily harmful.

7    See, e.g., Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 176

8    (2d Cir. 2004) (“If an instruction improperly directs the jury on

9    whether the plaintiff has satisfied her burden of proof, it is not

10   harmless error because it goes directly to the plaintiff’s claim,

11   and a new trial is warranted.” (quotation marks omitted)); LNC

12   Invs., Inc. v. First Fid. Bank, N.A. N.J., 173 F.3d 454, 462-63 (2d

13   Cir. 1999) (reversing on the basis that district court improperly

14   instructed the jury on the standard for reliance). Accordingly, we

15   must VACATE and REMAND the case for a new trial.

16                                BACKGROUND

17        Terra Firma appeals from the 2010 judgment, following a jury

18   trial, of the District Court for the Southern District of New York

19   (Rakoff, Judge) for Citi.1 This judgment, in conjunction with




     1
       “Terra Firma” includes plaintiffs-appellants Terra Firma
     Investments (GP) 2 Ltd. and Terra Firma Investments (GP) 3 Ltd.;
     “Citi” is shorthand for defendants-appellees Citigroup Inc.,
     Citigroup Global Markets Ltd., Citigroup Global Markets Inc., and
     Citibank, N.A.

                                      3
1    earlier orders dismissing Terra Firma’s other claims as a matter of

2    law, terminated this suit.

3         The primary actors are Terra Firma, a private equity firm; Guy

4    Hands, Terra Firma’s principal; EMI Group, a company Terra Firma

5    purchased at auction; Citi, a financial services company and both a

6    buy-side and sell-side adviser in the EMI Group auction; David

7    Wormsley, one of Citi’s bankers; and Cerberus, another private

8    equity firm rumored to be participating in the auction.

9         In 2007, EMI Group was put up for auction. Wormsley allegedly

10   made numerous statements that caused Terra Firma to bid more than

11   necessary in order to acquire it. Specifically, on May 18 and twice

12   on May 20, 2007, Wormsley allegedly informed Hands that Cerberus

13   was bidding 262 pence per share for EMI Group and that Terra Firma

14   would have to exceed that bid to win the auction. Wormsley also

15   allegedly knew that Cerberus had pulled out of the auction as of

16   May 19.

17        In September 2007, Hands learned that Cerberus never placed a

18   bid in the auction. In December 2009, Terra Firma brought claims of

19   fraudulent misrepresentation, negligent misrepresentation,

20   fraudulent concealment, and tortious interference with prospective

21   economic advantage against Citi.

22        After the parties agreed that the case was governed by English

23   law, the district court granted summary judgment on the negligent

24   misrepresentation and tortious interference claims and allowed the


                                        4
1    other two to proceed to trial. At the close of Terra Firma’s case,

2    the district court granted Citi’s motion for judgment as a matter

3    of law on the fraudulent concealment claim. The jury then found in

4    Citi’s favor on the remaining fraudulent misrepresentation claim.

5         Among other arguments advanced on appeal, Terra Firma contends

6    that the jury instruction on the reliance element of the fraudulent

7    misrepresentation claim was erroneous.

8                                 DISCUSSION

9         The Second Circuit “review[s] a claim of error in jury

10   instructions de novo, reversing only where, viewing the charge as a

11   whole, there was a prejudicial error.” United States v. Quattrone,

12   441 F.3d 153, 177 (2d Cir. 2006) (quotation marks omitted). After

13   conducting a de novo review, we find that the district court failed

14   to properly instruct the jury on the presumption of reliance.2

15        It is undisputed that, to prove fraudulent misrepresentation

16   under English law, a plaintiff must demonstrate (1) a

17   misrepresentation which is (2) false, (3) dishonest, (4) intended

18   to be relied upon, (5) is relied on, and (6) thereby causes damage.3


     2
       Because this finding warrants remand for a new trial, we need not
     discuss at length Terra Firma’s alternative argument that the
     district court’s instruction to the jury regarding the
     benefit/detriment language was also error. These jury instructions
     likely misled the jury by seeming to require additional findings of
     fact. Any such error, however, may be corrected in the event of a
     retrial.
     3
       If the jury had found that Wormsley never made the statements in
     question, there would be no need to evaluate whether the district

                                      5
1    When the misrepresentation is one on which a reasonable person

2    would rely, there is a rebuttable presumption of reliance. 4 The

3    question before us is when this presumption is relevant: prior to

4    trial, as a procedural requirement (an “evidential presumption”),

5    or at trial, as a burden-shifting device (a “persuasive

6    presumption”).

7         While English law recognizes both evidential and persuasive

8    presumptions, we find little evidence that the presumption

9    contested here operates as a pre-trial procedural requirement.

10   Instead, as applied in English case law, the presumption is a

11   burden-shifting device. See Barton v. Cnty. NatWest Ltd. [1999]

12   Lloyd’s Rep. Bank. 408 (A.C.) at 421-22 (describing the presumption

13   as “one of fact,” the effect of which “is to alter the burden of

14   proof” and applying it as such); Dadourian Grp. Int’l, Inc. v.

15   Simms [2006] EWHC (Ch) 2973, [546] (“[T]he court’s function is



     court’s instructions on reliance were appropriate, because there
     would be no question of reliance. However, because the verdict form
     does not distinguish between the different elements of a fraudulent
     misrepresentation claim, we must assume for the purposes of this
     argument that Wormsley made the alleged statements.
     4
       Citi disputes whether Terra Firma is entitled to this presumption,
     on the basis that it was not reasonable for Terra Firma to make a
     bid worth billions of dollars on the statements of one outside
     advisor. Terra Firma notes, however, that under English law if the
     alleged misrepresentation “plays a real and substantial part,
     though not by itself a decisive part, in inducing a plaintiff to
     act, it is a cause of his loss and he relies on it, no matter how
     strong or how many are the other matters which play their part in
     inducing him to act.” JEB Fasteners Ltd. v. Marks Bloom & Co.
     [1983] 1 All E.R. 583 (A.C.) at 589.

                                       6
1    simply to decide, on a balance of probabilities on the whole

2    evidence, whether the representation did or did not induce the

3    representee to act in a certain way, with the onus being on the

4    representor to show that it did not.” (emphasis added)); Pan Atl.

5    Ins. Co. Ltd. v. Pine Top Ins. Co. Ltd. [1995] 1 A.C. 501 (H.L.),

6    542 (noting that proving reliance “may be made more easy by a

7    presumption of inducement”); see also Barton at 421 (observing that

8    the presumption will remain unless the opposing party “satisfies

9    the court to the contrary” (emphasis added); Colin Tapper, Cross

10   and Tapper on Evidence (12th ed. 2006) at 134 (noting that, where

11   the “presumed fact must be taken to be established unless the trier

12   of fact is persuaded to the appropriate standard of the contrary,

13   then a persuasive burden has been cast upon the opponent of the

14   presumed fact, and the presumption can reasonably be described as a

15   persuasive presumption. It is more accurate to speak of a shift in

16   the burden of proof in the case of [this] stronger presumption[]

17   because [it] affect[s] what the judge does in leaving an issue to

18   the jurors or withdrawing it from them, and may determine the

19   manner in which he must direct the jury at the end of the case.”

20   (emphasis added)).5



     5
       Cross and Tapper continues: “Every writer of sufficient
     intelligence to appreciate the difficulties of the subject-matter
     has approached the topic of presumptions with a sense of
     hopelessness, and has left it with a feeling of despair.” Cross and
     Tapper at 134.

                                      7
1         Citi correctly notes that reliance must be proved, not simply

2    presumed as a matter of law. But that general statement of the law

3    is not incompatible with a rebuttable presumption of reliance at

4    the fact-finding stage. If reliance were presumed as a matter of

5    law, there would be no need to present it to the jury. In other

6    words, the presumption would not be rebuttable. That the

7    presumption is rebuttable implies that it requires a factual

8    finding—but that conclusion is irrelevant to the question posed

9    here, which is who bears the burden of proof in establishing the

10   factual finding.6

11        The district court found that the presumption was procedural

12   and therefore “drop[s] out” in jury trials. J.A. 14864 (Trial Tr.);

13   see also id. (characterizing the doctrine at issue as procedural in

14   nature, and not a burden-shifting device). It analogized the

     6
       Citi cites Smith v. Chadwick [1884] 9 App. Cas. 187 (P.C.) for its
     arguments to the contrary, but it misreads the case: the question
     there was whether, if a misrepresentation was sufficiently
     material, a court could presume reliance as a matter of law. Lord
     Blackburn found that a court could not, as there needed to be a
     factual determination of reliance. Id. at 196; see also Barton at
     421 (quoting Smith); Pan Atl. at 570 (observing that Smith
     “exploded” the “heresy” that “inducement can be inferred from
     proven materiality, as a matter of law”).

     Smith does, however, provide some support for Citi’s reading, as
     Lord Blackburn continues: “[T]here are a great many other things
     which might make it a fair question for the jury whether the
     evidence on which they might draw the inference was of such weight
     that they would draw the inference.” Smith at 196. This statement
     would seem to imply that the presumption of the inference does not
     exist at jury trial. However, we find Barton’s subsequent
     application of Smith more persuasive than this dictum.

                                      8
1    contested doctrine to the burden shifting rule in McDonnell Douglas

2    Corp. v. Green, 411 U.S. 792 (1973), where the evidentiary burden

3    shifts prior to trial but “drop[s] out” at the trial stage. Id. As

4    a result, the district court instructed the jury that Terra Firma

5    had to prove, by a preponderance of the evidence, that it “did in

6    fact rely on one or more [of Wormsley’s] misrepresentations and

7    that the misrepresentations were a substantial factor in causing

8    Terra Firma to make the bid it made for EMI Group on May 21, 2007.”

9    J.A. 15284 (Jury Instructions).

10        As described above, such an instruction was inconsistent with

11   English law and therefore was error. Because the jury instructions

12   incorrectly shifted the burden of proof from Citi to Terra Firma on

13   the reliance element, they were prejudicial and require reversal.

14   See, e.g., Bank of China, 359 F.3d at 176; LNC Invs., Inc., 173

15   F.3d at 463.

16        Terra Firma also argues (1) that the negligent

17   misrepresentation claim should not have been decided at summary

18   judgment because the district court misinterpreted an agreement

19   between the parties; (2) that the fraudulent concealment claim

20   should not have been dismissed as a matter of law because the jury

21   could have found Wormsley partially truthful or that Terra Firma

22   could have abandoned its bid before it had been made public; and

23   (3) that various evidentiary rulings were not within the district

24   court’s discretion.

                                       9
1         We find these alternative arguments for reversal unpersuasive.

2    First, the unambiguous terms of the parties’ agreement had the

3    effect of waiving Citi’s negligence liability for Wormsley’s

4    statements. Second, no reasonable juror would have found in Terra

5    Firma’s favor on the fraudulent concealment claim, especially as

6    there is little evidence that Terra Firma ever advanced the

7    theories necessary to its appellate argument at trial. Finally, the

8    district court acted well within its discretion when it precluded

9    Terra Firma from introducing factual evidence and expert testimony.

10   See United States v. Garcia, 413 F.3d 201, 210 (2d Cir. 2005).

11                                 CONCLUSION

12        For the foregoing reasons, the district court’s order granting

13   judgment for Citi on the fraudulent misrepresentation claim is

14   VACATED and the case is REMANDED for a new trial. The district

15   court’s dismissal of the negligent misrepresentation claim at

16   summary judgment and of the fraudulent concealment claim as a

17   matter of law are AFFIRMED.




                                      10
LOHIER, Circuit Judge, concurring:

       I agree entirely with our resolution of the issue of English law involved here and concur

fully in the majority opinion. I write separately to add that, as a result of commercial agreements

and the growing number of international commercial disputes, we are asked with increasing

frequency to decide issues that require us to determine and apply foreign law. This case

illustrates the trend. Although the Federal Rules of Civil Procedure make it clear that

“determining foreign law” falls well within the province of federal courts, Fed. R. Civ. P. 44.1,

we will encounter more and more cases involving unsettled questions of foreign law that

implicate important policy preferences of a foreign nation.

       When faced with difficult questions of state law, we have a well-developed, successful

system of certifying the question to state courts that promotes the development of state

decisional law by state courts and strongly reflects principles of comity and federalism.

Previous opinions and academic journals have adequately described that state certification

system, and I do not need to do so again here. In the context of cross-border commercial

disputes, there is every reason to develop a similar formal certification process pursuant to which

federal courts may certify an unsettled and important question of foreign law to the courts of a

foreign country. Fortunately, in this case, the question appears to have been neither unsettled

nor especially important to the development of English law.
