June 24, 2013
SALAH N. OSSEIRAN, Plaintiff,
INTERNATIONAL FINANCE CORPORATION, Defendant.
RICHARD W. ROBERTS, District Judge.
Plaintiff Salah Osseiran brought a claim for breach of a confidentiality agreement against the International Finance Corporation ("IFC"), alleging that IFC disclosed to an unauthorized party that Osseiran was negotiating to buy certain bank shares from IFC. The parties presented evidence consisting of the live and deposition testimony of five witnesses along with exhibits during a bench trial conducted from May 1, 2013 to May 6, 2013. Osseiran proved that IFC breached the agreement, but did not show by a preponderance of the evidence that IFC's disclosure caused him damages. Therefore, judgment will be entered for Osseiran but he will be awarded only nominal damages in the amount of $1.
Having observed and listened to the witnesses and assessed their credibility, and having considered all the evidence and the parties' post-trial submissions, I make the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Salah Osseiran is an international entrepreneur based in Lebanon. Since 1988, he has specialized in acquiring distressed companies and turning them into profitable ones. Osseiran Test., 5/2 a.m. Tr. 47:16-21, 48:3-20; Def.'s Ex. 69, Stipulation No. 1.
2. The Middle East Capital Group ("MECG") is a banking and financial institution in Lebanon. It was founded in 1996. Osseiran has been a minority shareholder of MECG since its founding and later joined its board of directors. Osseiran Test., 5/2 a.m. Tr. 51:7-52:21.
3. IFC is an international organization and is the private sector arm of the World Bank. Def.'s Ex. 70, Stipulation No. 2.
4. As of 2005, IFC owned approximately 10.8% of the shares of MECG and Barclays Bank owned approximately 16% of the shares of MECG. Def.'s Ex. 71, Stipulation No. 3; see Pl.'s Ex. 22 at 438; Pl.'s Ex. 35 at 1884; see also Osseiran Test., 5/2 a.m. Tr. 56:8-12. Osseiran owned approximately 1.5% of the shares. Am. Compl. ¶ 16; see Pl.'s Ex. 22 at 438.
5. MECG as a business was consistently losing money through 2005. Many shareholders wanted to divest themselves of MECG shares. IFC and Barclays told shareholders on the MECG board that they wanted to sell their shares. Van Bilsen Test., 5/1 a.m. Tr. 92:6-11, 94:9-16, 95:1-6; Pl.'s Ex. 2 at 232-33 ("IFC is still seeking an exit from this investment, as its role is complete, and the financial prospect [sic] look poor."); Pl.'s Ex. 3 at 443 ("[IFC has] not made it a secret that IFC can sell at the right price, ... as [IFC's] role as a development bank is deemed to be over here."); Pl.'s Ex. 35 at 1885 ("IFC confirmed its intention to exit from its investment[.]"); Def.'s Ex. 64, Osseiran Dep. 8/20/09 at 117:12-18 (5/6 a.m Tr. 4:2); see Khambata Test., 5/1 a.m. Tr. 36:7-12.
6. Finding buyers had been difficult. IFC had received inquiries in the past from prospective buyers, but none had turned out to be serious. Van Bilsen Test., 5/1 a.m. Tr. 95:12-23; Pl.'s Ex. 35 at 1886; see Pl.'s Ex. 134, van Bilsen Dep. 9/2/09 at 105:18-106:11 (5/3 a.m. Tr. 57:5-17); Osseiran Test., 5/2 a.m. Tr. 58:1-9.
7. Osseiran wanted to gain control of MECG, become the sole shareholder, stop the losses, turn MECG around, make it profitable, and ultimately sell his shares at a nice profit. Osseiran Test., 5/2 a.m. Tr. 55:8-57:14; see Pl.'s Ex. 134, van Bilsen Dep. 9/2/09 at 21:10-22:12 (5/3 a.m. Tr. 36:3-24).
8. In September 2005, Osseiran called Jan van Bilsen, the IFC portfolio manager for the Middle East stationed in Dubai. Osseiran said that he wanted to buy the MECG shares that IFC and Barclays owned. Van Bilsen Test., 5/1 a.m. Tr. 95:24-96:9; Pl.'s Ex. 134, van Bilsen Dep. 9/2/09 at 21:10-14 (5/3 a.m. Tr. 36:3-6); Osseiran Test., 5/2 a.m. Tr. 57:15-25.
9. Van Bilsen asked Osseiran questions about Osseiran's intentions for buying IFC's and Barclays' MECG shares. Van Bilsen wanted to gauge whether Osseiran's interest in a potential sale was serious or was fake as earlier inquiries from others had been. Van Bilsen Test., 5/1 a.m. Tr. 96:10-24; Osseiran Test., 5/2 a.m. Tr. 58:1-9; van Bilsen Test., 5/3 a.m. Tr. 123:8-23.
10. Osseiran said he wanted to change the direction of MECG. Osseiran insisted that he and the negotiators for IFC and Barclays keep confidential the negotiations over his purchase until the sale closed. Osseiran Test., 5/2 a.m. Tr. 60:1-11, 68:15-25; Def.'s Ex. 64, Osseiran Dep. 8/20/09 at 122:13-21 (5/6 a.m Tr. 4:2). He also insisted that the negotiations not be disclosed to IFC's representative on the MECG board of directors, Daoud Khairallah. See van Bilsen Test., 5/1 a.m. Tr. 104:15-105:3; Osseiran Test., 5/2 a.m. Tr. 59:22-60:7, 71:7-12; see also van Bilsen Test., 5/1 a.m. Tr. 101:4-104:10; Pl.'s Ex. 5 ("The reason why I have not cc-ed all is because Osseiran has stressed confidentiality to me even within our organisations."); Pl.'s Ex. 11 at 1586 (Osseiran's "written and serious offer" was conditional to "IFC maintaining confidentiality - even vis-a-vis Daoud" and "[i]n line with the confidentiality, we had initially not advised Daoud on our negotiations with Osseiran[.]").
11. Van Bilsen responded that he agreed to Osseiran's confidentiality request. Van Bilsen Test., 5/1 a.m. Tr. 97:8-98:23, 103:17-104:3 ("So, to answer your question, it came up, he asked me to keep it confidential, so I said yes."); Pl.'s Ex. 134, van Bilsen Dep. 9/2/09 at 23:21-26:6 (5/3 a.m. Tr. 38:5-39:19) ("Q. Did you understand that you had a, an agreement with Mr. Osseiran to keep the negotiations confidential? A. Yes, but as I said, in the context that we... always keep business confidential."); Osseiran Test., 5/2 a.m. Tr. 58:10-59:7; Def.'s Ex. 64, Osseiran Dep. 8/20/09 at 122:22-123:5 (5/6 a.m Tr. 4:2); see Pl.'s Ex. 134, van Bilsen Dep. 9/2/09 at 154:10-17 (5/3 a.m. Tr. 68:13-17); Pl.'s Ex. 5.
12. After the phone call, van Bilsen sent an e-mail to Walid Cherif, an IFC colleague, relating the conversation, stating that "Osseiran stressed confidentiality and I told him we will treat it accordingly" and reiterating to Cherif to "[k]eep it confidential." Van Bilsen Test., 5/1 a.m. Tr. 105:4-106:25; Pl.'s Ex. 3.
13. On October 3, 2005, Osseiran sent an e-mail to van Bilsen offering to purchase all of IFC's MECG shares. Van Bilsen Test., 5/1 a.m. Tr. 114:19-21; Osseiran Test., 5/2 a.m. Tr. 61:6-18; Def.'s Ex. 64, Osseiran Dep. 8/20/09 at 125:3-12 (5/6 a.m Tr. 4:2); Pl.'s Ex. 4.
14. On October 19, 2005, van Bilsen discussed with Khairallah IFC's negotiations to sell the MECG shares to Osseiran. Van Bilsen confirmed to Khairallah that IFC had received an offer from Osseiran and was negotiating with Osseiran. Van Bilsen Test., 5/1 p.m. Tr. 11:9-12:13; van Bilsen Test., 5/3 p.m. Tr. 25:11-23; Pl.'s Ex. 134, van Bilsen Dep. 9/2/09 at 27:15-28:2 (5/3 a.m. Tr. 40:18-24); see Pl.'s Ex. 24.
15. On November 11, 2005, van Bilsen told Khairallah that IFC was seriously considering Osseiran's offer, and that although IFC had been keeping its options open regarding its MECG shares, it was inclined to accept Osseiran's offer. Khairallah had not been aware of the extent of the negotiations or IFC's intention to proceed to sell to Osseiran. Van Bilsen Test., 5/1 p.m. Tr. 21:21-22:5; Pl.'s Exs. 37, 40; see Khairallah Test., 5/2 p.m. Tr. 67:22-68:2; Khairallah Test., 5/3 p.m. 52:4-15.
16. The parties agreed on the terms of the purchase and Osseiran sent an e-mail to van Bilsen on November 18, 2005 purporting to "confirm" the purchase agreement. Pl.'s Ex. 43 at 118; Osseiran Test., 5/2 a.m. Tr. 64:21-65:1. Van Bilsen responded the same day asking Osseiran to "confirm" that Osseiran "accept[ed] that [IFC's] acceptance is subject to documentation - meaning separate sales agreements, " along with additional bank guarantees. Van Bilsen's e-mail also asked for confirmation of Osseiran's understanding that the "sales agreements come into force and affect [sic]" only after execution of the agreements and receipt of the guarantees. Pl.'s Ex. 43 at 116; see Osseiran Test., 5/2 a.m. Tr. 65:2-10.
17. In a November 19, 2005 response to van Bilsen, Osseiran expressly accepted these conditions. Pl.'s Ex. 43 at 119; Osseiran Test., 5/2 a.m. Tr. 67:7-15.
18. Van Bilsen informed Khairallah that IFC was accepting Osseiran's offer. Khairallah then resigned from the MECG board on November 23, 2005 via email to Chairman of the MECG Board Khalid Al Turki and MECG CEO Walid Musallam. Pl.'s Exs. 48, 51; Def.'s Ex. 11; van Bilsen Test., 5/1 p.m. 41:25-43:6; Khairallah Test., 5/2 p.m. Tr. 73:14-74:5, 75:1-4; Khairallah Test., 5/3 p.m. Tr. 43:14-44:7.
19. On the same day, Al Turki and Musallam asked Osseiran whether Osseiran had bought MECG shares from IFC and Barclays and he responded that "there is no agreement." Osseiran Test., 5/2 a.m. Tr. 72:3-18.
20. At a December 5, 2005 MECG board meeting, Al Turki asked Osseiran again about whether he had bought MECG shares from IFC and Barclays, and Osseiran confirmed the impending sale. Osseiran Test., 5/2 a.m. Tr. 82:12-21; see Def.'s Ex. 19 at 1391.
21. IFC officials informed Osseiran via a telephone call on December 19, 2005 that IFC had decided to suspend its sale of IFC shares to Osseiran. Osseiran Test., 5/2 a.m. Tr. 88:14-20; van Bilsen Test., 5/1 p.m. Tr. 86:18-87:1; Pl.'s Ex. 87.
22. Thereafter, Osseiran entered agreements to purchase MECG shares from other shareholders. Osseiran Test. 5/2 a.m. Tr. 94:4-99:20; Def.'s Ex. 72, Stipulation No. 4; see Def.'s Ex. 59 at 4.
23. Osseiran and IFC never finalized or executed a sales agreement and IFC never sent Osseiran a signed stock transfer form, which was necessary to complete a sale of IFC's MECG shares. Van Bilsen Test., 5/1 p.m. Tr. 77:15-25; Pl.'s Exs. 78-79; van Bilsen Test., 5/2 a.m. Tr. 28:12-29:2.
24. The parties never received the bank guarantees necessary to complete the sale. Van Bilsen Test., 5/1 p.m. Tr. 79:4-80:2; Pl.'s Ex. 81; van Bilsen Test., 5/2 a.m. Tr. 29:3-24; Pl.'s Ex. 134, van Bilsen Dep. 9/2/09 at 46:15-49:12, 50:20-51:5 (5/3 a.m. Tr. 49:3-50:23, 51:16-21); van Bilsen Test., 5/3 a.m. Tr. 120:13-121:3.
25. Osseiran eventually sold the other MECG shares he purchased at a higher price than he paid to obtain them. Osseiran Test., 5/2 a.m. Tr. 120:1-9.
CONCLUSIONS OF LAW
26. Osseiran's amended complaint alleges that IFC breached a confidentiality agreement with Osseiran by divulging Osseiran's potential share purchase to an unauthorized party. Am. Compl. ¶¶ 47-48. "To prevail on a claim of breach of contract, a party must establish (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by [that] breach." Tsintolas Realty Co. v. Mendez , 984 A.2d 181, 187 (D.C. 2009).
27. To establish an enforceable agreement under District of Columbia law, the parties both must (1) agree on all material terms and (2) intend to be bound. Steven R. Perles, P.C. v. Kagy , 473 F.3d 1244, 1249 (D.C. Cir. 2007); Kramer Assocs., Inc. v. Ikam, Ltd. , 888 A.2d 247, 251 (D.C. 2005). "Unless the statute of frauds requires otherwise in a particular case, the contract need not be written; parties may be bound by their oral agreement if it meets the dual requirements of intent and completeness.'" Kramer , 888 A.2d at 252 (citing Jack Baker, Inc. v. Office Space Dev't Corp. , 664 A.2d 1236, 1238 (D.C. 1995)).
28. In addition, "an express contract requires an offer and an acceptance, and must be supported by consideration." Ghahremani v. Uptown Partners, LLC, Civil Action No. 05-1270 (CKK) , 2005 WL 3211463, at *16 (D.D.C. Nov. 13, 2005). The party asserting the existence of the contract bears the burden of proof. Jack Baker , 664 A.2d at 1238.
29. "[W]here a plaintiff proves a breach of a contractual duty he is entitled to damages; however, when he offers no proof of actual damages or the proof is vague and speculative, he is entitled to no more than nominal damages.'" Cahn v. Antioch Univ. , 482 A.2d 120, 130 (D.C. 1984) (quoting Roth v. Speck , 126 A.2d 153, 155 (D.C. 1956)); see also Garcia v. Llerena , 599 A.2d 1138, 1142 (D.C. 1991). An appropriate amount for nominal damages is one dollar. See FCE Benefit Adm'rs, Inc. v. George Washington Univ. , 209 F.Supp.2d 232, 243 (D.D.C. 2002) (citing Patel v. Howard Univ. , 896 F.Supp. 199, 205 (D.D.C. 1995); Wisconsin Ave. Assocs., Inc. v. 2720 Wisconsin Ave. Coop. Ass'n , 441 A.2d 956, 961 (D.C. 1982)).
I. VALID CONTRACT
30. Osseiran demonstrated by a preponderance of the evidence that a valid contract existed. The parties agreed on the material terms and their actions reflected an intent to be bound. It is not disputed that Osseiran offered to negotiate to purchase IFC's MECG stock as long as van Bilsen agreed to keep the negotiations confidential, and that van Bilsen agreed in a telephone conversation on September 5, 2005. See supra ¶¶ 10-11.
31. The parties' statements and actions after that phone call reflected their understanding that the agreement prohibited divulging to individuals who were not included in the negotiations that negotiations over IFC's MECG shares were underway. In particular, van Bilsen's September 5 email to Cherif emphasizing confidentiality for the negotiations with Osseiran is strong evidence that van Bilsen understood Osseiran's expectations and intended to be bound by the confidentiality agreement. See supra ¶ 12. Van Bilsen acknowledged that "Osseiran stressed confidentiality" and stated that IFC would "treat it accordingly[.]" Id . In addition, van Bilsen concluded the September 5 email reiterating to Cherif that he should "[k]eep it confidential." Id . Internal IFC communications confirm that IFC employees regarded the negotiations with Osseiran as confidential. See Pl.'s Ex. 5; Pl.'s Ex. 11 at 1586. The oral communications between van Bilsen and Osseiran and the internal communications reflecting IFC's intention to maintain confidentiality during negotiations show by a preponderance of the evidence that a valid confidentiality agreement existed between the parties.
32. Contrary to the defendant's argument, there was consideration exchanged between the parties for this agreement. District of Columbia courts "will not inquire into the adequacy of' consideration, even where it is arguably slight, ' as long as it is legally sufficient.'" Wash. Inv. Partners of Del., LLC v. Sec. House, K.S.C.C. , 28 A.3d 566, 574 (D.C. 2011) (quoting Riggs v. Aetna Ins. Co. , 454 A.2d 818, 821 (D.C. 1983)). "An exchange of promises'... constitutes legally sufficient consideration, so long as it is bargained-for.'" Id. at 574-75 (quoting Pearsall v. Alexander , 572 A.2d 113, 118 (D.C. 1990)). An exchange of promises suffices so long as "[e]ach party undertook to do something it would otherwise have no legal obligation to do." Eastbanc, Inc. v. Georgetown Park Assocs. II, L.P. , 940 A.2d 996, 1004 (D.C. 2008).
33. Here, the parties exchanged promises of confidentiality and agreed to engage in potentially mutually beneficial negotiations that neither was legally obligated to undertake. Although IFC wanted a buyer for its MECG shares, it was not required to negotiate with Osseiran, especially if it had not been satisfied that he was a serious suitor. It did, though, agree to negotiate. Osseiran wanted IFC's shares but was not required to make any offer to buy them. He did agree, though, to negotiate for a purchase in exchange for the promise of confidentiality. Because the exchange of promises here was adequately bargained for, the confidentiality agreement was supported by consideration.
34. Thus, the preponderance of the evidence showed that a valid contract existed to maintain confidentiality during negotiations over selling IFC's MECG shares to Osseiran. The terms were clear, the parties intended to be bound, and they exchanged consideration.
II. OBLIGATIONS ARISING FROM CONTRACT
35. The preponderance of the evidence showed that the parties agreed not to disclose to individuals who were not involved with the negotiations, including Khairallah, that the negotiations were occurring. Van Bilsen's communications with IFC employees during the negotiations reflected that Khairallah should not be informed about the negotiations with Osseiran. See supra ¶ 10.
36. It was also more likely than not that the parties had an obligation to not disclose the sale negotiations to third parties until the sale closed. Osseiran's testimony reflected his understanding that confidentiality should be maintained until the sale was completed. See supra ¶ 10. Van Bilsen's agreement with Osseiran that IFC would treat the negotiations in a confidential manner and van Bilsen's statement to his colleagues that IFC should "maintain confidentiality" comports with that understanding. See supra ¶ 11. Thus, the parties had an obligation to not disclose the negotiations to individuals who were not involved, including Khairallah, until the sale closed.
37. Osseiran proved by a preponderance of the evidence that IFC breached the confidentiality agreement when van Bilsen confirmed to Khairallah on October 19, 2005 that IFC was negotiating with Osseiran. See supra ¶ 14.
38. Whether van Bilsen or Khairallah raised the issue of the negotiations first, van Bilsen was under an existing obligation to maintain in confidence that the negotiations were underway. Either by raising it first or by confirming the existence of negotiations to Khairallah, van Bilsen breached the confidentiality agreement by disclosing to a third party who was not involved in the negotiations that IFC was negotiating with Osseiran. Van Bilsen violated the agreement again when he disclosed to Khairallah on November 11, 2005 more information about the ongoing negotiations, namely, that IFC was seriously considering Osseiran's offer. See supra ¶ 15.
39. IFC maintained in its closing argument that Osseiran had to prove that IFC was the first to disclose the negotiations. Def.'s Closing Arg., 5/6 p.m. 9:2-5. But IFC offered no authority for the proposition that the duty to maintain confidentiality expires when a party to the agreement hears partial contents of the confidence disclosed to him or her from a third party. Thus, Osseiran showed that van Bilsen breached the confidentiality agreement.
40. Osseiran did not sufficiently prove his other breach of the confidentiality agreement theories. Osseiran claimed that Khairallah breached the confidentiality agreement in November 2005 by disclosing the negotiations to Al Turki and Musallam. Pl.'s Closing Arg., 5/6 a.m. Tr. 17:18-22, 19:8-21. Khairallah credibly denied doing so. See Khairallah Test., 5/3 p.m. Tr. 44:8-19, 45:2-4; Pl.'s Ex. 136, Khairallah Dep. 8/12/09 at 35:3-22 (5/3 a.m. Tr. 86:3-17). There was no exhibit or testimonial evidence that impeached or undercut his claim that he did not reveal any negotiations at that time.
41. Osseiran also claimed that Khairallah gave a copy of IFC's internal sales memo to Al Turki or Musallam. See Pl.'s Closing Arg., 5/6 a.m. Tr. 19:8-21. Khairallah testified that he did not see and was not aware of the IFC internal sales memorandum at the time. Khairallah Test., 5/2 p.m. 66:14-67:10; Khairallah Test., 5/3 p.m. 49:11-24. Khairallah's testimony was credible and unimpeached. And, there was no evidence presented that Khairallah had access to or possession of a copy of the internal sales memo to disclose to third parties, or that Khairallah did provide a copy of the internal sales memo to a third party. Thus, Osseiran has not shown that Khairallah disclosed negotiations by informing Al Turki or Musallam or by disclosing a copy of IFC's internal sales memo.
42. Osseiran further claimed that someone at IFC gave a copy of the internal sales memo to Al Turki or Musallam. Pl.'s Closing Arg., 5/6 a.m. Tr. 17:23-18:3. However, Osseiran did not carry his burden to prove that assertion. Osseiran did not provide any direct evidence that Al Turki or Musallam saw a copy of the internal sales memo and Osseiran did not call them as witnesses. Nor did he otherwise show that IFC disclosed the memo to a third party. The allegation amounts to pure speculation.
43. Osseiran asserted multiple theories for damages. These theories ranged from Osseiran losing likely discounts for buying the remaining shares after he had secured a majority interest, to Osseiran losing the opportunity to gain control of MECG, revive the failing business, and sell his MECG shares for a much larger profit. See Am. Compl. ¶ 49; Pl.'s Opening Stmt., 5/1 a.m. Tr. 11:8-17; Pl.'s Closing Arg., 5/6 a.m. 38:24-40:12; Osseiran Test., 5/2 a.m. Tr. 111:22-112:15. Any measure of damages used would have to follow proof that the damages were caused by IFC's breach of the confidentiality agreement.
44. One hurdle Osseiran did not overcome is that both he and IFC breached the agreement, and he has not shown that IFC's breach is any more likely than his own to have caused any claimed damages. Specifically, Osseiran has not shown how any damages, based on either increased share prices or lost share sale profits, were caused by van Bilsen disclosing negotiations to Khairallah rather than Osseiran's own disclosure to the MECG board. Osseiran's own breach in December would seem at least to weaken his claim for damages arising from IFC's breach in October.
45. Nonetheless, it is undisputed that the sale that was the aim of the negotiations required bank guarantees and the parties never received the bank guarantees required to close the sale. See supra ¶¶ 16, 17, 24. Osseiran did not establish by a preponderance of the evidence that any breach by IFC was responsible for the parties not securing the required bank guarantees. See supra ¶ 24. Osseiran conceded in closing argument that the record is bare as to why the bank guarantees were not issued. Pl.'s Closing Arg., 5/6 a.m. Tr. 37:4-9.
46. Osseiran failed to carry his burden of proof that IFC's breach of the confidentiality agreement caused damages. However, Osseiran's proof that IFC committed a breach entitles him to nominal damages of one dollar.
Osseiran showed by a preponderance of the evidence that IFC breached the confidentiality agreement. Osseiran failed to carry his burden of proving that IFC's breach of the confidentiality agreement caused any damages. Thus, judgment in the amount of $1 will be entered for Osseiran. A final judgment accompanies this Memorandum Opinion.