Opinion
98 Civ. 6635 (SAS).
November 22, 2000.
David Dunn, Esq., Hogan Hartson, LLP, New York, New York, for Plaintiff.
Oleg Rivkin, Esq., Eduardo L. Tabio, Esq., Fox Horan Camerini, LLP, New York, New York, for Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Wells Fargo Financial, Inc., formerly known as Norwest Financial, Inc. ("Norwest"), has moved under Federal Rule of Civil Procedure 60(b) for reconsideration of an Opinion and Order dated January 12, 2000, familiarity with which is assumed. Specifically, plaintiff asks that paragraph eight (8) of section IV of that Opinion and Order be modified so that defendants will only be entitled to all right, title and interest in particular accounts receivable underlying paid Credit Losses on the condition that they are in material compliance with their obligations under the Stock Purchase Agreement ("SPA") with regard to the payment of Credit Losses. For the reasons that follow, plaintiff's motion is granted and the Opinion and Order is so modified.
The SPA's turnover provision states, in relevant part, as follows:
When the Company determines that an Account Receivable is a guaranteed Credit Loss, and provided that such Credit Loss is within the Closing Provisions and has been reimbursed to the Company by the Sellers pursuant to the terms hereof, then the Company shall assign to Sellers, without recourse, all of Company's right, title and interest in said Account Receivable.
SPA, § 2.2(b). I interpreted this section to mean that "Once defendants have paid the Credit Loss for a particular account receivable, Norwest must provide defendants with all right, title and interest in that account receivable." Norwest v. Fernandez, 86 F. Supp.2d 212, 236 (S.D.N.Y. 2000).
Since I issued that Opinion and Order, defendants have paid Norwest only three percent (3%) of all Credit Losses claimed in this action and none of the amounts claimed after July 31, 1999. See Declaration of David Dunn, plaintiff's attorney, sworn to October 5, 2000 ("Dunn Decl."), ¶ 4. Despite these nominal payments, defendants have requested that Norwest immediately turn over all files relating to paid Credit Losses. See id. Apparently, in an attempt to coerce Norwest to transfer the accounts receivable files to them, defendants have threatened criminal action in Argentina against Norwest and Finvercon. See id. ¶ 6. Furthermore, Norwest's counsel in Argentina has learned that defendants have in fact filed criminal charges with Argentinian prosecutors alleging criminal conduct on the part of David Dunn, Norwest's outside counsel, and Christopher Keiser, Norwest's principal in-house counsel. See id. ¶ 7. Defendants contend that this proceeding does not involve David Dunn as a defendant and is "unrelated to the transfer of rights at issue on this motion." See Declaration of Eduardo L. Tabio, defendants' attorney, sworn to October 19, 2000 ("Tabio Decl."), ¶ 8.
Regardless of any Argentinian criminal proceedings, my interpretation of section 2.2(b) presupposed substantial compliance by the defendants with respect to their payment obligations under the SPA. This has not happened. Accordingly, defendants, by remaining in material breach of the SPA, have excused plaintiff's turnover obligations under that Agreement. It is a general rule of contract law that a material breach excuses non-performance by the non-breaching party. See, e.g., Stone Forest Indus., Inc. v. United States, 973 F.2d 1548 (Fed. Cir. 1993) ("Upon material breach of a contract the non-breaching party has the right to discontinue performance of the contract."); Zim Israel Navigation Co., Ltd. v. Indonesian Exports Dev. Corp., No. 91 Civ. 3848, 1993 WL 88223, at *2 (S.D.N.Y. Mar. 24, 1993); Jafari v. Wally Findlay Galleries, 741 F. Supp. 64, 68 (S.D.N.Y. 1990) ("where a party materially breaches, he has failed to substantially perform the contract, and the other party is discharged from performing his obligation"). See also Restatement (Second) of Contracts § 237 and comment b (1981) (a party is relieved of continued performance under a contract if a "material failure" in performance goes uncured).
In sum, defendants' continued material breach of the SPA constitutes a changed circumstance warranting modification of the January 12, 2000 Opinion and Order. See Fed.R.Civ.P. 60(b)(6). Accordingly, under paragraph eight (8) of section IV, defendants are not entitled to, and will not be entitled to, any right, title and interest in any underlying accounts receivable until they substantially comply with their ongoing obligations to pay Credit Losses demanded under the SPA. While the term "substantial compliance" is not a precise term, defendants may petition this Court at any time to require turnover based on their good faith and substantial compliance.