Federal district court reFuses
to dismiss claims Brought
By shareholders agaiNst
iNvestmeNt BaNk iN coNNectioN
with m&a eNgagemeNt letter
Court finds that terms of engagement letter and
actions of investment bank may create third party
beneficiary rights in company shareholders
Beijing FrankFurt Hong kong London Los angeLes MunicH new York singapore tokYo wasHington, dc
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corporate governance group
client alert
Acting as financial advisor to companies engaging in M&A transactions is an integral, and high-profile, aspect of investment banking. As such, a common concern for financial advisors is tailoring engagement letters to limit their exposure to liability to their clients’ shareholders. shareholders disappointed with the ultimate outcome of a transaction, and in search of a deep pocket to compensate them for that disappointment, have from time to time sought to collect damages from their companies’ financial advisors. A recent federal district court ruling in Baker v. Goldman Sachs1, in which the court refused to dismiss claims of breach of contract and fiduciary duty brought by shareholders of Dragon Systems, Inc. against Goldman sachs, offers both a cautionary note, as well as lessons on how careful drafting of an engagement letter can help financial advisors minimize the risks of third party liability.
Background
the Baker case arises from goldman sachs’ representation of dragon, a privately-held company which had “revolutionized the area of speech recognition technology,” in its sale to the now infamous lernout & hauspie speech Products N.v. (“l&h”). the transaction was structured as an all-stock deal in which dragon’s shareholders received L&H’s publicly-traded shares in exchange for their
dragon shares. a few months after the sale, it was revealed that l&h had been misrepresenting its earnings. Soon thereafter, L&H was forced to file for bankruptcy protection. As a result, L&H stock became worthless and Janet and James Baker, the founders and controlling shareholders of Dragon, lost approximately $300 million.
the Bakers sued goldman sachs for failure to properly investigate l&h and to advise dragon and the Bakers as to the risks of an all-stock deal, as well as for misrepresenting “what it knew about l&h” and l&h’s prospects. the Bakers argued that goldman sachs’ actions resulted in, among other things, a breach of the terms of its engagement letter with Dragon, as well as a breach of fiduciary duties owed to the Bakers. goldman sachs moved to dismiss the Bakers’ claims, arguing that its engagement letter was with dragon only, and that it owed no contractual or fiduciary duties to the Bakers. The Court refused to dismiss several of the Bakers’ causes of action.
The Court’s Analysis
The Court’s analysis scrutinized not only the actions taken by Goldman Sachs in its role as financial advisor, but also its engagement letter with Dragon. The engagement letter had been signed by an officer of dragon on behalf of the company, but was addressed to three individuals: (1) ellen chamberlain, dragon’s cFo, (2) Janet Baker, who was at that time serving on dragon’s board of directors, and (3) donald waite, an Executive Vice President of a company which owned shares of Dragon stock. Neither Baker nor Waite were addressed in their representative capacities. importantly from the court’s point of view, although the engagement letter stated that Goldman Sachs was being engaged “exclusively” by Dragon “as financial advisor in connection with the possible sale of all or a portion of the company,” the letter went on to recite that goldman sachs would provide its advice and assistance to “you” (i.e., in the court’s view, the addressees) rather than to dragon. Finally, the engagement letter stated that “any written or oral advice provided by
Goldman Sachs in connection with our engagement is exclusively for the information of the Board of Directors and senior management of the company.” the engagement letter provided that it was governed by New york law.
Breach of contract claims
the court was quick to dismiss the Bakers’ claim that goldman sachs owed them a direct contractual duty, despite the use of the term “you” in the engagement letter. the court, siding with goldman sachs, determined that “Janet Baker was not intended to be a party to the contract.” in support of this conclusion, the court cited the fact that dragon’s cFo was the only individual to sign the main body of the engagement letter (on behalf of dragon)2 and that dragon, and not the Bakers or any other shareholder, was responsible for paying Goldman Sachs’ $5 million fee. Simply stated, “the fact that she did not sign or agree to the main body of the contract negates the existence of a contractual relationship between Goldman and Janet Baker.”
2 Janet Baker, along with donald waite, did sign the engagement letter, but only as shareholders agreeing to an isolated provision stating that they
on the other hand, the court looked favorably upon ms. Baker’s claim that she was a third party
beneficiary of the engagement letter and thus entitled to recover under an indirect breach of contract claim. Ms. Baker argued that because she was a dragon board member and the engagement letter stated that goldman Sachs’ advice “is exclusively for the information of the board of directors,” Goldman Sachs intended that she be a beneficiary of their services. Goldman Sachs countered that it was referring to the board of directors in a representative capacity and not to any individual member in his/her individual capacity.
the court rejected this contention, noting that by its words and actions, goldman sachs had an “understanding that others would benefit from its advice.” In this regard, the Court focused on the fact that the engagement letter was addressed to Janet Baker “in her individual capacity,” as well as on the engagement letter’s use of the word “you” rather than “Company” in describing the recipients of Goldman Sachs’ financial advice and assistance. the court also noted that goldman sachs “dealt directly and persistently with Janet Baker … throughout the course of the engagement.” Based on these circumstances, the court determined that Janet Baker, as an individual, was intended to be a beneficiary of the engagement letter and therefore was entitled to bring suit on an alleged breach.3
Breach of Fiduciary duty claims
Goldman Sachs also contended that it did not owe the Bakers any fiduciary duty. The Court noted that a fiduciary duty is an “extra-contractual duty” that “exists when one places trust in another’s specialized judgment and advice … However, [t]he plaintiff alone, by reposing such trust and confidence in the defendant, cannot thereby transform a business relationship into one which is fiduciary in nature. The catalyst in such a change is the defendant’s knowledge of the plaintiff’s reliance upon him.”
in support of its position, goldman sachs cited the Joyce4 decision, in which the seventh circuit dismissed a shareholders’ claim for breach of fiduciary duty against a corporation’s financial advisor, because, among other reasons, “the court saw no way that shareholders could ‘show that their relationship with [the investment bank] possessed the ‘special circumstances’ necessary to give rise to an extra-contractual fiduciary duty.’” the Baker court distinguished Joyce, noting that unlike the goldman sachs engagement letter, which contained “no explicit waiver … precluding any extra-contractual fiduciary duty” and under which “the relationship among the parties is muddy,” the engagement letter in Joyce “explicitly noted that Morgan stanley was working only for the corporation.” [emphasis added] the court found that not only did the Bakers establish that they trusted and relied on goldman sachs, but that “goldman continuously initiated communications and meetings with the Bakers.” on this basis, the court determined that the Bakers “made sufficient allegations that special circumstances existed to create a fiduciary relationship apart from the terms of the contract.”
3 however, because James Baker did not serve on the board of directors and was not a signatory to the engagement letter, the court therefore found that he was not an intended beneficiary of the engagement letter.
4 Edward T. Joyce, et al. v. Morgan Stanley & Co., Inc., No. 07-1992 (7th cir. 2008). See our previous client alert discussing the Joyce decision
entitled “seventh circuit court rules that investment Bank owes No duty to shareholders of corporate client,” dated september 9, 2008, as well
as our previous Client Alert discussing another Seventh Circuit decision involving a Credit Suisse financial advisory engagement entitled “Seventh
Conclusion
the Baker decision provides guidance on how financial advisors should tailor engagement letters to avoid unintentional liability to third parties. Engagement letters should explicitly (i) exclude extra-contractual fiduciary duties and (ii) provide that the company is the intended party of the services to be provided, and not any other person in any individual or other capacity. attention also must be paid to “attention” lines and the use of pronouns with indefinite antecedents. While this decision involved motions to dismiss and a different outcome could result from an actual trial on the merits, it should nevertheless remind financial advisors that they must be wary, when drafting engagement letters, of the possibility that the transactions on which they advise may not always have happy endings, and that they are natural targets for disgruntled former shareholders.
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