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Triad Capital Management, LLC v. Private Equity Capital Corp.

July 29, 2010

TRIAD CAPITAL MANAGEMENT, LLC AND AU PUBLISHING HOLDINGS, LLC, PLAINTIFFS,
v.
PRIVATE EQUITY CAPITAL CORPORATION AND JOHN M. RAMEY, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

Plaintiffs Triad Capital Management, LLC ("Triad") and AU Publishing Holdings, LLC ("AU") brought a four-count complaint against defendants Private Equity Capital Corporation ("PECC") and John M. Ramey ("Ramey"), asserting contractual, quasi-contractual, and fraud claims arising from the failed acquisition of Author Solutions, Inc. ("Author Solutions"*fn1 ), an Indiana-based publishing company. According to plaintiffs' First Amended Complaint, PECC committed to but failed to provide funding for the Author Solutions acquisition, a deal that allegedly was to close before the end of 2006. This case presently comes before the court on defendants' motion for summary judgment.

I. PLAINTIFFS'MOTION TO STRIKE

Before addressing the factual background of this case and analyzing the merits of defendants' motion, the court first resolves a motion to strike filed by the plaintiffs. Plaintiffs have moved to strike certain statements in defendants' response to plaintiffs' additional proffered facts (Doc. 104); defendants' responses at issue seek to strike plaintiffs' additional facts. To resolve this dispute, the court first considers whether, as defendants contend, plaintiffs' additional facts should be stricken, then whether, as plaintiffs contend, defendants' requests to strike should themselves be stricken.

Defendants seek to strike certain of plaintiffs' additional facts on two grounds. First, defendants assert that certain of plaintiffs' additional facts should be stricken as not "short" within the meaning of Local Rule 56.1(a). Having reviewed the statements of additional fact indicated by defendants, the court concludes that defendants are correct that many of plaintiffs' statements of fact are not strictly "short," but also that the statements are also not so long as to require striking.

Defendants also seek to strike certain statements of additional fact based on what they believe to be contradictions between, on the one hand, plaintiffs' interrogatory responses and an affidavit from James Crawford, the principal of Triad, and, on the other hand, Crawford's deposition testimony. Defendants are correct that interrogatory responses and affidavits can provide an evidentiary basis to avoid summary judgment, Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), only insofar as they do not contradict sworn deposition testimony from the party that responded to the interrogatories or submitted the affidavit, LaFary v. Rogers Group, Inc., 591 F.3d 903, 908 (7th Cir. 2010). However, having reviewed the cited parts of the responses, Crawford's affidavit, and his testimony, the court finds that the affidavit and interrogatory responses are at least arguably consistent with the deposition testimony. Given the court's duty to draw reasonable inferences in the non-moving party's favor, arguable consistency is sufficient at this stage, and the court declines to grant defendants' request to strike the interrogatory responses, Crawford's affidavit, or the statements of additional fact that each supports.

Defendants' arguments regarding deficiencies in plaintiffs' statement of additional facts and plaintiffs' underlying evidence are rejected but are not so poorly taken as to require striking. Thus, plaintiffs' motion to strike is also denied.

II. FACTUAL BACKGROUND

A. Triad Attempts to Acquire Author Solutions

James Crawford formed Triad in 2006 and, as Triad's first deal, pursued the acquisition of Author Solutions. (Defs.' Stmt. ¶ 11.)*fn2 Crawford also formed plaintiff AU as a shell entity by which Triad would purchase Author Solutions. (Id. ¶ 12.) On September 20, 2006, Triad, Author Solutions, and the owner of Author Solutions ("Gazelle") entered into an agreement giving Triad the exclusive right to acquire Author Solutions until October 27, 2006. (Id. ¶¶ 16-18.) When that exclusivity period elapsed, Triad had not yet secured sufficient funding to complete its acquisition of Author Solutions. (Id. ¶ 20.) Triad secured a second exclusivity period, which expired on November 3, 2006, again without consummation of the deal. (Id. ¶¶ 21-22.) After the expiration of the second exclusivity period, Triad, Gazelle, and Author Solutions continued negotiations regarding the acquisition without an exclusivity provision but with an understanding that the deal would close before the end of the calendar year. (Id. ¶ 23.)

B. Bertram

In late November, Triad found a firm named Bertram Capital ("Bertram"), which was willing and able to fund the deal. (Defs.' Stmt. ¶ 26.) Bertram proposed to contribute the majority of the equity and debt necessary to complete the transaction, with Triad contributing the remainder. (Defs.' Ex. I.) Bertram, Triad, Gazelle, and Author Solutions progressed toward a year-end closing, including due diligence at Author Solutions' facility in Indiana on December 18 and 19, 2006. (Defs.' Stmt. ¶ 30.) According to both Bertram and Author Solutions, as of December 19, the parties were moving toward closing the deal. (Id. ¶¶ 31-32.)

C. PECC and Ramey

At the same time, Triad attempted to pursue the Author Solutions acquisition with PECC in lieu of Bertram. On December 13, 2006, Crawford, on behalf of Triad, first made contact with Ramey, the principal of PECC, regarding the acquisition. (Id. ¶¶ 33, 36, 37.) After speaking to Ramey on the telephone, Crawford emailed Ramey an investment memorandum regarding Author Solutions. (Id. ¶¶ 37-38.) In the email, Crawford stated, "While the Dec 31 target might be impossible if you decided you wanted to be TRIAD's financial partner in the deal, we could extend into January if we could show [Gazelle] that we are making good progress." (Defs.' Ex. D.)

Crawford and Ramey met for the first time on December 20, 2006, in the Milwaukee airport. (Defs.' Stmt. ¶ 40.) Although Ramey and Crawford discussed that there was a "tremendous amount of work to be done" (Defs.' Ex. B, 116:4-13), Crawford understood from his conversation with Ramey that in "the time that we had available to do the deal [Ramey] could get it done" (Defs.' Ex. A, 152:16-19). Also on December 20, 2006, after Crawford and Ramey's meeting, Triad's accountants sent Ramey and his assistant due diligence reports regarding Author Solutions. (Defs.' Stmt. ¶ 43.)

On December 21, 2006, Crawford notified Ramey that Bertram was ready to continue with the acquisition, and, "If [Triad and PECC] are to work together, we need to take some action, perhaps as early as today." (Id. ¶¶ 44-45.) A conversation with Ramey later that day left Crawford with the impression that the "economics" of the acquisition were better for Triad with PECC than with Bertram (id. ¶ 46), and that Triad could assure Author Solutions that it had funding besides Bertram (id. ¶ 47). On December 21, after their conversation, Ramey emailed Crawford, stating, "We will say we will close by december [sic] 31 . . . ." (Defs.' Ex. O.) Ramey testified that Crawford knew that the acquisition was not going to close before the end of 2006 (Defs.' Stmt. ¶ 55), but Crawford testified that Ramey left him with the impression that the deal could close by December 31 (Defs.' Ex. 2, at 168:23 through 169:11). However, on December 22, Ramey emailed Crawford, stating that "we will not close this deal on december [sic] 31 as you know." (Defs.' Ex. Q.)

Also on December 21, Crawford emailed Ramey that Author Solutions had requested a letter "committing to the deal and the timing." (Pls.' Ex. 8.) Crawford attached to the email a term sheet for the parties' investment in and management of AU, the entity that Triad had planned to use to make the investment, and terms based on "[m]y understanding of our discussion . . . ." (Id.) These terms included a transaction fee for Triad and a possible transaction fee for PECC, an annual management fee for Triad, and additional terms applicable to Triad's and PECC's investors. (Id.) Crawford concluded the email by asking, "Do I have this understanding correct?" (Id.) The next day, Ramey responded "Yes that is fine." (Pls.' Ex. 5 Ex. A.)

D. The PECC Letter

On December 22, Crawford drafted the letter from Ramey that Author Solutions requested, and edited the letter with Ramey. (Defs.' Stmt. ¶ 50; Pls.' Stmt. ¶ 19.) Crawford then sent the letter on Ramey's behalf to Author Solutions. (Pls.' Stmt. ¶ 19.) After a conversation with Ramey, Author Solutions returned the letter Crawford had forwarded, with a number of edits, including that: the letter was "binding" rather than non-binding; PECC "will," not "would expect to," "deliver cash at closing;" that closing "will be," rather than "is targeted for," December 29, 2006; and that, with respect to any bridge financing, "PECC will provide such financing if necessary." (Pls.' Stmt. ¶ 22). According to Ramey, this "fundamentally change[d] the characteristics of the [previous] draft." (Pls.' Ex. 1, at 180, 19-24.) Even so, Ramey emailed Author Solutions that "[Crawford] and I will do this." (Pls.' Stmt. ¶ 24.)

On December 23, 2006, with Author Solutions' revisions incorporated, Ramey signed the letter, which the parties refer to as the PECC letter, and faxed it to Crawford, who forwarded the letter to Author Solutions. (Pls.' Stmt. ¶ 28; Doc. 54 Ex. 1.)*fn3 The PECC Letter stated, in part:

PECC is pleased to submit the following binding offer to team with TRIAD ("PECC-TRIAD [sic]) to purchase AuthorHouse. Our proposal is based upon our current understanding of the TRIAD due diligence that we have reviewed, as well as our current understanding of the deal structure that has been agreed to by [Author Solutions'] ...


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