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Constellation Newenergy, Inc v. Federal Deposit Insurance Corporation

March 24, 2011


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiff Constellation NewEnergy, Inc. ("NewEnergy") brings this action against the Federal Deposit Insurance Corporation ("FDIC"), in its capacity as the Receiver of Washington Mutual Bank, asserting claims of breach of contract, unjust enrichment, and promissory estoppel arising out of the FDIC's repudiation of contracts with NewEnergy. Before the Court is the FDIC's motion to dismiss NewEnergy's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [#16]. Upon consideration of the motion, the opposition thereto, and the record of the case, the Court concludes that the motion should be denied.


NewEnergy is an energy company that supplied electric power to Washington Mutual Bank at various locations. On September 25, 2008, the Office of Thrift Supervision ordered Washington Mutual Bank closed, and the FDIC was appointed as its Receiver. As the Receiver, the FDIC disaffirmed certain of Washington Mutual Bank's contracts, including its electric power contracts with NewEnergy. See 12 U.S.C. § 1821(e) (giving an appointed receiver the authority to repudiate or disaffirm contracts determined to be burdensome where repudiation or disaffirmance promotes the orderly administration of the institution's affairs); Am. Compl., Ex. 4.*fn1 NewEnergy timely asserted an administrative claim for costs and damages arising out of this alleged breach of contract. Am. Compl., Ex. 5. The FDIC rejected NewEnergy's claim on the ground that liability for the claim had passed to JPMorgan Chase, which purchased Washington Mutual Bank's assets from the FDIC. Id., Ex. 6. NewEnergy subsequently filed this action.


The FDIC moves to dismiss NewEnergy's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that NewEnergy was in privity with Washington Mutual, Inc., not Washington Mutual Bank,*fn2 and therefore the FDIC, as Receiver for the latter, cannot be held liable for breach of contract.*fn3 The FDIC's position cannot be sustained for the reasons that follow.
There are three agreements that are at issue in this case.*fn4 First, there is an agreement between Washington Mutual, Inc. ("WMI") and NewEnergy that is "intended to be a master agreement between the Parties pursuant to which from time to time the Parties execute and deliver separate electricity supply agreement(s) (each an 'ESA') and related pricing schedule(s) (each, a 'Pricing Schedule'), with such ESAs and Pricing Schedules deemed incorporated herein and constituting a part of this Agreement." Am. Compl., Ex. 1 ("Master Agreement") at 1.*fn5

Additionally, there are two Pricing Schedules executed between Washington Mutual Bank and NewEnergy, each dated March 20, 2008, that set forth the specific charges and terms under which NewEnergy will provide electric power. Id., Ex. 2 ("Pricing Schedule 1"); Id., Ex. 3 ("Pricing Schedule 2"). Each Pricing Schedule states that it was "entered into pursuant to and in accordance with the . . . Master Agreement . . . and is subject to all of the provisions, terms and conditions of such Master Agreement." Pricing Schedule 1 at 1; Pricing Schedule 2 at 1.

The FDIC argues that the three agreements comprise a single contract. Consequently, because the only parties to the Master Agreement are NewEnergy and WMI, the proper party to any contract action brought by NewEnergy is WMI. In support of its argument, the FDIC points to Paragraph 24 of the Master Agreement. Paragraph 24(a) states that NewEnergy "will provide the service contemplated by this Agreement to Washington Mutual, Inc. and any other member of the Washington Mutual Group designated by Customer, irrespective of its corporate structure[.]" Master Agreement ¶ 24(a). The FDIC asserts that the member of the Washington Mutual Group so designated under the Pricing Schedules in Exhibits 2 and 3 is Washington Mutual Bank. Paragraph 24(d) of the Master Agreement provides:

It is hereby agreed and acknowledged by the Parties that the obligations of Customer under this Agreement are the obligations only of Customer and that none of the other Washington Mutual Group companies, including Washington Mutual Bank, Washington Mutual Bank FA and Washington Mutual Bank fsb, will be responsible for the obligations of Customer under this Agreement. Each representation, warranty and covenant made by Customer under this Agreement is made by, or on behalf of, and with respect to, Customer only, and not any other Washington Mutual Group Company.

Master Agreement ¶ 24(d). Thus, the FDIC reads the Master Agreement to indicate that NewEnergy agreed to provide service to members of the Washington Mutual Group, including Washington Mutual Bank, but to look only to WMI for payment for those services. The FDIC asserts that any other reading would render paragraph 24 of the Master Agreement nugatory.

NewEnergy responds that it does not assert its breach of contract claim under the Master Agreement, but instead under the Pricing Schedules. NewEnergy points out that it and Washington Mutual Bank are the signatories to the two Pricing Schedules.*fn6 These Schedules define the "Customer" as Washington Mutual Bank, and each one is signed by a representative of Washington Mutual Bank. Pricing Schedule 1 at 1, 6; Pricing Schedule 2 at 1, 6. These Schedules provide that Washington Mutual Bank, as the Customer, is liable for the financial obligations of the Schedule, stating that "[u]tility charges for distribution services and any applicable taxes or surcharges . . . shall be the sole financial responsibility of Customer[.]" Pricing Schedule 1 at 1; Pricing Schedule 2 at 1. The Schedules further state that the "Customer shall pay the NewEnergy Electricity Charge. In addition to the NewEnergy Electricity Charge, Customer shall pay and be responsible for all such other amounts related to the purchase and delivery of electricity[.]" Pricing Schedule 1 at 2; Pricing Schedule 2 at 2.*fn7 The Court agrees with NewEnergy that the agreement embodied in each Pricing Schedule is an obligation enforceable against Washington Mutual Bank.

The language in the Master Agreement and the Pricing Schedules indicates that these agreements should be read together. Doing so, however, presents challenges. WMI is the designated "Customer" and signatory to the Master Agreement, while Washington Mutual Bank is the "Customer" and signatory to the Pricing Schedules. The Master Agreement appears to contemplate an agreement wherein WMI is responsible for payment for NewEnergy's services provided to all members of the Washington Mutual Group, including Washington Mutual Bank. The Pricing Schedules, however, assign sole responsibility for payment for NewEnergy's services to Washington Mutual Bank.

Under other circumstances, the Court might have more difficulty determining how to enforce these inconsistent provisions so as to effectuate the parties' intent. But here, the parties have expressly provided for this situation. Both the Master Agreement and the Pricing Schedules state that, in the event of any conflict between the Master Agreement and the Pricing Schedule, the terms of the Pricing Schedule will govern. See Master Agreement ยง 19 ("In the case of any conflict among the documents comprising the Agreement, they will control in the following order of priority: first, the applicable Schedule A [Pricing Schedule] . . . ; second, the applicable ESA; third, these General Terms and Conditions [of the Master Agreement]."); Pricing Schedule 1 at 1 ("[A]ny conflict between this Pricing Schedule and the Master Agreement will be resolved in favor of this Pricing Schedule."); Pricing Schedule 2 at 1 (same). The Pricing Schedules indicate that Washington Mutual Bank entered into an express agreement with NewEnergy to ...

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