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L.P.P.R., Inc. and Lehigh Press Pharmaceutical v. Keller Crescent Corporation and Clondalkin Group

September 30, 2011

L.P.P.R., INC. AND LEHIGH PRESS PHARMACEUTICAL PRODUCTS, INC. PLAINTIFFS,
v.
KELLER CRESCENT CORPORATION AND CLONDALKIN GROUP, INC. DEFENDANTS.



The opinion of the court was delivered by: Baylson, J.

I. Introduction

Plaintiffs L.P.P.R., Inc. and Lehigh Press Pharmaceutical Products, Inc. filed this action against Defendants Keller Crescent, Corp. ("Keller") and Clondalkin Group, Inc.*fn1 , seeking money damages for breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel, and, in the alternative, unjust enrichment.*fn2 Defendants moved for partial summary judgment (ECF No. 32).

For the following reasons, Defendants' motion will be granted in part and denied in part.

II. Factual Background

The Puerto Rican government offers tax credits to induce a purchaser of a distressed Puerto Rican business to continue operations in Puerto Rico. Plaintiffs are Puerto Rican Corporations that had not been profitable for some time. The parties, through two substantially identical Asset Purchase Agreements ("the Contract"), agreed to purchase assets from Plaintiffs. The Contract also provided that Keller would sell the potential tax credits and the parties would share the net proceeds from the sale.

In relevant part, the Contract states:

4.04 Tax Credits. (a) Seller and Purchaser hereby covenant and agree to share the net proceeds (i.e., net of costs incurred by Purchaser in connection with collecting and selling such tax credits) from the sale by Purchaser of any Industrial Investment tax credits . . . 90% of such proceeds for the account of Seller; 10% of such proceeds for the account of Purchaser. Additionally, the Contract required Keller (the Purchaser) to notify Plaintiffs of the existence of a potential buyer for the tax credit and of the terms of the sale. It further stated that "Purchaser's execution of the sale of the Credit shall be subject to Seller's approval."

Keller eventually found a potential buyer willing to purchase the tax credit for 85% of its face value. Keller's representative contacted Plaintiffs' representative over e-mail. In two e-mail exchanges, Plaintiffs' representative conditioned approval of the sale upon his understanding of the amount of funds coming to Plaintiffs through the deal (i.e. "the proceeds would be $1,785,000 of which $1,606,500 would be paid to sellers. If that is accurate for sellers [sic.] proceeds, the sellers consent.") Keller's representative did not confirm or deny the stated amount. Keller's representative again sought consent from Plaintiffs' representative, who replied "[t]he 85% is fine. . . . Take this e-mail as approval."

Defendants then sold the tax credit and wired $1,133,587 to Plaintiffs, rather than $1,606,500. Plaintiffs seek the difference.

III. The Parties' Contentions

Defendants move for partial summary judgment on the issue of contract interpretation.

A. Breach of Contract

Defendants contend that they did not breach the Contract. Rather, they assert that Plaintiffs are only entitled to the $1,133,587 they received, which constitutes 90% of the proceeds of the sale of the tax credits after netting out the costs of obtaining the tax credit and the costs of selling the tax credit. They argue that, in the Contract's phrase "net of costs incurred by Purchaser in connection with collecting and selling such tax credits," "collecting" unambiguously refers to securing or obtaining the tax credit from the Puerto Rican tax authorities. Therefore, they reason, they were permitted to subtract these costs before wiring 90% of the remaining proceeds to Plaintiffs.

Plaintiffs respond that "collecting" is ambiguous and therefore an issue of fact for the jury. Plaintiffs assert there is abundant evidence that there is more than one reasonable interpretation of "collecting" and that the parties' intent differed as to the meaning of the term. They interpret the costs of collecting to mean "costs incurred in collecting the proceeds of selling the tax credits." These costs would include, for example, bank transfer fees and the cost of pursuing payment if the buyer refused to pay in a timely fashion. Plaintiffs maintain that one cannot "collect" a tax credit, and that Keller's interpretation of "collect" runs afoul of its previous assertion that it wished to deduct the costs incurred in "securing and sale of Tax Credit" and other conduct by Keller. Plaintiffs also challenge the actual costs that Keller deducted. These include hundreds of thousands of dollars in fees that Plaintiffs say Keller never paid, legal fees associated with researching how to create and issue the tax ...


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