NM IQ LLC v. OmniSky Corp.

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered May 28, 2004, dismissing the amended complaint for failure to state a claim, affirmed, without costs. This is an action arising out of a merger in which plaintiff NM IQ LLC sold Nomad IQ, Inc. and Nomad IQ, LTD (the Nomad Businesses), which were involved in the development of wireless communications applications for Palm Pilots and other digital devices, to defendant OmniSky, which was in the business of providing Internet content on handheld devices such as Palm Pilots, for 3.5 million shares of OmniSky common stock. Plaintiffs, as pertinent to this appeal, assert causes of action seeking compensatory and punitive damages for fraud in the inducement and fraud, based upon defendants’ allegedly false and misleading representations regarding the financial condition of OmniSky and its subscriber projections. NM IQ LLC was created by the individual plaintiffs for the purpose of effecting the acquisition, and it received the OmniSky shares that were subject to lockup agreements lasting between 180 and 330 days; the individual plaintiffs own 94% of NM IQ LLC. When OmniSky’s acquisition of the Nomad Businesses was announced on January 4, 2001, its stock was trading at $7.50 per share. By late 2001, the price had plummeted to 10 cents per share, and in December, OmniSky filed for bankruptcy. [316] The motion court properly dismissed the causes of action with respect to defendants’ statements that OmniSky had sufficient capital to continue its operations and those of the Nomad Businesses through the end of 2001 and into 2002. Although plaintiffs sufficiently alleged that defendants knew such statements were false, plaintiffs had been provided with independent analyst reports warning that OmniSky would need capital as early as the third quarter of 2001 or no later than the end of that year (see Matter of Dean Witter Managed Futures Ltd. Partnership Litig., 282 AD2d 271, 271 [2001] [“disclosures in the written offering materials rendered any reliance on alleged contradictory oral representations unjustifiable as a matter of law”]; Societe Nationale d’Exploitation Industrielle des Tabacs et Allumettes v Salomon Bros. Intl., 249 AD2d 232 [1998], lv denied 95 NY2d 762 [2000]). Moreover, this Court has held that a fraud cause of action is “fatally undermined” when the plaintiff learns of all the material facts, yet still decides to close on the deal (Chelsea, LLC v Seventh Chelsea Assoc., 304 AD2d 498 [2003]). Since it is undisputed that plaintiffs learned about the decreased subscriber projections and thus had all the material facts before deciding to close on the transaction, their claim that there is a question of fact as to whether they could reasonably have believed that they could not refuse to close because this was merely an adverse business development, not fraud, is unavailing (see Curran, Cooney, Penney v Young & Koomans, 183 AD2d 742 [1992], lv denied 80 NY2d 757 [1992]). Finally, the motion court, while acknowledging defendants’ statements that OmniSky had secured a commitment from Verizon to invest $20 million concerned an existing fact, correctly found in its disposition on the motion to dismiss the original complaint, that NM IQ LLC “did not reasonably rely on defendants’ assertions in light of the pervasive warnings in the analysts’ reports that OmniSky needed much more than a $20 million commitment to fund its operations through the end of 2001.” We have considered plaintiffs’ remaining arguments and find them unpersuasive. Concur—Buckley, P.J., Mazzarelli, Andrias and Friedman, JJ.