Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Management, L.P.

— 205 — Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered February 13, 2004, which granted defendants’ motion for summary judgment dismissing the complaint, and denied plaintiffs’ cross motion for partial summary judgment on the issue of liability, affirmed, without costs. This breach of contract action arises from the decision of the board of directors of a family of mutual funds (collectively the Fundamental Funds or the Funds) to replace plaintiffs as their investment advisor and distributor. Plaintiff Lance Brofman is the founder and former president and chief portfolio strategist of the Funds. He is also the principal shareholder and president of the Funds’ former advisor, plaintiff Fundamental Portfolio Advisors (FPA), and a shareholder of their former distributor, plaintiff Fundamental Service Corp. (FSC). Defendant Tocqueville Asset Management (Tocqueville) is an investment advisor to mutual funds, which succeeded plaintiffs to the management of the Fundamental Funds allegedly in breach of a noncompete clause executed while the parties were negotiating the merger of their businesses and the transfer to defendants of plaintiffs’ management contracts with the Fundamental Funds. In September 1996, Christopher Culp, a Tocqueville officer and portfolio manager, and defendant Robert Kleinschmidt, president of Tocqueville, met with plaintiff Brofman and his partner, nonparty Vincent Malanga, then president of FPA and vice-president of FSC, as well as a member of the board of the Fundamental Funds, to discuss Tocqueville’s merger with FPA or acquisition of FPA’s investment advisory assets. Culp and Kleinschmidt executed a nondisclosure, noncompete agreement, which provided that “[w]hereas, [Kleinschmidt and Culp] and — 206 — Brofman and Malanga intend discussing various business proposals involving the investment advisory and mutual funds business,” Kleinschmidt and Culp “agree not to solicit or engage in any business activity involving any of the mutual funds which have had, or ever in the future have business relationships with FPA or any company affiliated or associated with FPA, without prior written consent of both Brofman and Malanga.” The agreement also provided that “[n]o delay or omission by FPA, Brofman or Malanga in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by FPA, Brofman and Malanga on any one occasion is effective only in that instance and will not be construed as a bar or waiver of any right on any other occasion.” While the parties were negotiating, the board of directors of the Funds decided, at its December 31, 1996 meeting, to renew FPA’s contract but to remove Brofman, who had a history of securities violations, from his position as chief portfolio strategist and to ban him from any position of responsibility on behalf of the Funds. In early 1997, FPA tentatively agreed to sell its investment advisory assets to Tocqueville for a price equal to 63% of the revenues received by Tocqueville from existing client accounts of the Funds for five years, or about $6 million, based on the Funds’ assets at the time. It was understood that, in return, Tocqueville would help FPA in its relationship with the members of the board and Culp would perform due diligence for Tocqueville and simultaneously manage the Funds’ portfolios. Thus, in February 1997, Culp began operating the Funds from FPA’s offices while performing due diligence for Tocqueville. Tocqueville was given access to FPA’s mutual fund shareholder information and Culp made presentations to the board concerning portfolio management. Malanga told his fellow board members at a March 28, 1997 meeting that, as a result of the board’s removal of Brofman as chief portfolio strategist, FPA had, among other things, “recruited Mr. Christopher P Culp to serve, without compensation, as a member of a three-person investment committee created for the purpose of managing the Funds’ investment portfolios.” Meanwhile, negotiations over Tocqueville’s purchase of FPA’s investment advisory assets continued. Also at the end of March, the board decided to replace FPA as soon as an acceptable replacement could be found, and in April, Malanga, on behalf of FPA, forwarded to the members of the board Tocqueville’s proposal to advise the Funds. In his cover — 207 — letter, Malanga said that FPA “strongly endorse[d]” the proposal, “believ[ing] it to be in the best interest of [the Funds’] past, present, and future shareholders.” He said that, among other strengths, “Tocqueville’s managers are intimately acquainted with [the] Funds” and, because Culp “currently act[s] as an unpaid member of Fundamental’s portfolio management committee, . . . they are fully aware of the operation of the Funds and their portfolio composition.” In May 1997, the board sent four investment advisory firms, including Tocqueville, requests for proposals to replace FPA, and the board met in July to consider the proposals received from Tocqueville and another firm. At that meeting, board member L. Greg Ferrone pointed out that Tocqueville “has shown enormous good will over the last few months and that they know the Fund portfolios quite well.” Malanga moved for approval of Tocqueville’s proposal and board member James C. Armstrong seconded the motion. After some discussion, the board voted unanimously that it was the sentiment of the board members to proceed with the Tocqueville transaction, subject to review and final approval at the July 15, 1997 meeting of the Funds’ board. The July 16, 1997 supplement to the Fundamental Funds’ April 30, 1997 prospectus states that, subject to shareholder approval, the Funds adopted a plan by which the Fundamental Funds would transfer their assets and liabilities to a newly created corresponding series of “Tocqueville Funds” in exchange for shares of the Tocqueville Funds. The supplement notes that Tocqueville Asset Management L.P serves as investment advisor to the Tocqueville Funds. In December 1997, instead of renewing FPA’s management agreement for one year, as was its custom, the board approved FPA’s continuing for only 90 days, pending Tocqueville’s takeover of the Funds’ management. At the expiration of the 90 days, the board approved a 60-day continuance. However, plaintiffs had concluded no agreement with Tocqueville to sell the latter its investment advisory assets, and in April 1998 Brofman launched a proxy battle seeking a shareholder vote to replace the board members who wanted to appoint Tocqueville with members who would retain FPA as advisor. Some of the proposed members were loyal to FPA because they knew that Tocqueville would not permit them to continue “market timing,” a controversial investment strategy. In early May 1998, FPA filed its proxy materials and sent the shareholders notice of a special meeting to be held on May 29, 1998, the day before FPA’s 60-day continuance was to expire. On May 27, — 208 — board member Armstrong commenced a shareholder action in federal court challenging the special meeting on procedural grounds and claiming that the proxy materials were inaccurate and misleading. The court granted a temporary restraining order enjoining the meeting. The parties then stipulated to stay the action and agreed that the board and FPA would submit new proxy materials, which they did on June 19, 1998. Meanwhile, on May 30, 1998, at a meeting called to select an interim advisor to the Funds, the board heard presentations by FPA, Tocqueville and a third firm. It then voted to allow FPA’s 60-day continuance to expire and, over Malanga’s opposition, to appoint Tocqueville as interim advisor for a period not to exceed 120 days from June 1, 1998. Tocqueville served as interim advisor until September 28, 1998, unable to come to an agreement with the board on the market-timing issue. Plaintiffs allege that defendants breached the noncompete agreement by engaging in business activity involving the Funds without the prior written consent of Brofman and Malanga, causing the latter to lose their business relationship with the Funds and to suffer damages of at least $6 million. Defendants argue that the record demonstrates that the board’s decision to replace plaintiffs was a result not of defendants’ conduct but of the board’s loss of confidence in plaintiffs. Indeed, the record reflects the Fundamental Funds’ poor performance between 1987 and 1997 and Brofman’s and FPA’s history of chronic legal violations, which culminated, in early 2001, in the Securities and Exchange Commission’s permanent ban of Brofman from the securities industry. The board decided at the end of 1996 to remove Brofman from his position as chief portfolio strategist and to ban him from any position of responsibility for the Funds. It decided at the end of March 1997 to replace FPA as advisor as soon as an acceptable replacement could be found. Culp had only begun working out of FPA’s offices in February 1997, and Malanga had only so informed the board at the end of March. Thus, the board made its decision to replace FPA long before it had become disposed toward Tocqueville. Moreover, when in December 1997 the board approved the continuance of its agreements with FPA for 90 days, “in contemplation of the consummation of a transaction pursuant to which Tocqueville Asset Management L.P. would assume management of the assets of the Funds,” it stated, “Otherwise, the [agreements] would have expired on January 1, 1998.” When, at the end of the 90 days, the board continued the agreements with FPA for another 60 days, again “in contemplation — 209 — of the consummation of a transaction pursuant to which Tocqueville Asset Management L.E would assume management of the assets of the Funds,” it stated, “Otherwise, the [agreements] would have expired on April 1, 1998.” Thus, the record demonstrates that the board’s decision to replace plaintiffs was, as defendants argue, a result not of defendants’ actions but of the board’s loss of confidence in plaintiffs, and that the board soon would have hired, if not defendants, then another firm to replace plaintiffs. Indeed, it appears that it is only because of Tocqueville’s involvement that FPA was allowed to continue on as the advisor for the Funds for an additional five months. Defendants further argue that there was no breach of the noncompete agreement because Brofman and Malanga consented to their attempt to become advisors to the board, by choosing Culp to replace Brofman as chief portfolio strategist for the Funds and introducing him to the other board members, who agreed to his participation in the day-to-day investment decisions for the Funds, and by endorsing, in writing, in Malanga’s April 1997 letter to his fellow board members, the appointment of Tocqueville as FPA’s successor investment advisor to the Funds. Plaintiffs argue, through Brofman, that they never waived the requirement of written consent to defendants’ engaging in business involving the Funds, because Culp’s working in FPA’s offices was for the purpose of due diligence, and that plaintiffs’ endorsement of Tocqueville to replace FPA was tied to the proposal involving the purchase of the management contracts from FPA, which defendants, and the board, understood. The motion court correctly found that plaintiffs waived the term of the agreement requiring their prior written consent to defendants’ soliciting or engaging in business activity involving the Funds. Waiver is the intentional relinquishment of a known right, and therefore may be inferred from conduct or a failure to act that “evince[s] an intent not to claim the purported advantage” (Hadden v Consolidated Edison Co. of N.Y., 45 NY2d 466, 469 [1978]). Whether or not the intent existed is generally a question of fact (Jefpaul Garage Corp. v Presbyterian Hosp. in City of N.Y., 61 NY2d 442, 446 [1984]). However, the record before us belies plaintiffs’ argument that the participation of Tocqueville, through Culp, in the day-to-day investment decisions for the Funds was for the purpose of doing due diligence to learn the business. Indeed, the complaint alleges that on February 18, 1997, Culp “began operating both the Tocqueville Bond Funds and the Fundamental Funds out of the offices of FPA, while — 210 — performing due diligence for [Tocqueville] regarding the acquisition of the Fundamental Funds. [Tocqueville] was given full access to all FPA information, including mutual fund shareholder information.” The record demonstrates instead that plaintiffs gave their consent orally, in writing and by their conduct, to Tocqueville’s being appointed investment advisor to the Funds. While there was a nonwaiver clause in the noncompete agreement (supra), it applied expressly to discrete expressions of consent. Thus, waiver based on the continuous course of conduct plaintiffs engaged in from February 1997 to April 1998 was not rendered ineffective by the nonwaiver clause. As to Culp’s work in FPA’s offices, he testified at examination before trial that in February 1997, he was “actively managing the funds,” which involved “[i]nvesting[, purchasing and selling, managing inflows and outflows.” He made presentations to the board at its quarterly meetings, discussing his trading strategy, fund performance, “[tissues and concerns, some of which were ongoing, and how we were dealing with those.” The purpose of the presentations was “[t]o give the board of trustees an accurate assessment of the current—of past performance, current state and future direction of the fund.” As a board member, Malanga attended the meetings and heard the presentations and raised no objection to Culp’s giving them. To the contrary, Culp testified, “I was summoned to the board.” Nor did Brofman raise any objection to Culp’s giving these presentations to the board. Indeed, he testified, “The opposite, we were the ones who sort of arranged for him to do the due diligence and be there, we were trying to get the deal done, we wanted to sell it to Mr. Kleinschmidt.” Although Brofman couched his testimony in terms of due diligence and the deal, it is clear that what plaintiffs arranged for Culp to do was to engage in business activity involving the Funds, notwithstanding the noncompete clause. As for the board, in the April 2, 1997 supplement to each Fund’s April 1996 prospectus, it stated that “[pjortfolio management responsibilities have been transferred from the Fund’s former portfolio strategist to an investment committee [whose members include] Christopher E Culp, a portfolio co-manager affiliated with Tocqueville Asset Management, L.E” The supplemental prospectus makes no mention of due diligence. Moreover, in August 1997, Culp left Tocqueville, and FPA’s offices, and was replaced, with plaintiffs’ consent, by another Tocqueville portfolio manager, defendant Drew Rankin. Brofman testified that “we were told Rankin was going to be the person managing the portfolios” and that he regarded Rankin as a satisfactory replacement for — 211 — Culp. That Tocqueville’s participation on the investment committee continued for another year is also inconsistent with plaintiffs’ claim that the purpose of the participation was no more than due diligence. Plaintiffs contend that Malanga’s April 4, 1997 letter to the board “strongly endorsing]” Tocqueville’s proposal was a recommendation that the Board “approve Tocqueville’s acquisition of contracts from FPA and its payment of a fee to FPA based upon a percentage of assets under management.” However, Malanga’s letter describes Tocqueville’s proposal as a proposal “for the acquisition of the assets of the Fundamental Funds”— not FPA’s assets—and urges that it is “in the best interest of Fundamental’s past, present, and future shareholders”—not FPA’s interest—and concludes that “the managers of FPA strongly urge Fundamental’s Directors to approve this acquisition.” At the May 1998 meeting at which the board chose Tocqueville to act as interim advisor to the Funds, board member Armstrong argued that Tocqueville could provide “an uninterrupted administrative transition that would benefit the Funds’ shareholders.” At the time, Tocqueville, with FPA’s blessing, had been providing advisory services to the Funds for more than a year. The motion court found that having waived the noncompete clause, plaintiffs withdrew their consent, but the court concluded that they should be estopped from benefitting from their withdrawal of consent because the board would not have appointed Tocqueville advisor, even on an interim basis, if plaintiffs had not encouraged and assisted Tocqueville in seeking the appointment (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982] [“estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury” (citations and internal quotation marks omitted)]). Indeed, Tocqueville committed resources to providing advisory services to the Funds, through FPA, for more than a year in hopes of being appointed advisor to the Funds, and with the endorsement, encouragement and assistance of plaintiffs, and it is apparent that the work Tocqueville did for the Funds in that period was integral to the board’s appointing it interim advisor. Thus, plaintiffs are estopped from denying their consent to the appointment, “the efficient cause of which is [their] own conduct” (Matter of County of Westchester v P. & M. Materials Corp., 20 AD2d 431, 436 [1964]). Moreover, even if Tocqueville were found to have violated the noncompete clause during the four-month period after FPA was — 212 — terminated, FPA cannot establish any damages since, as earlier indicated, FPA would, in any event, have been terminated some five months earlier, but for Tocqueville’s assistance. Concur— Mazzarelli, J.P., Ellerin, Williams and Sweeny, JJ.