Huffington v. T.C. Group LLC
Decision Date | 19 February 2010 |
Docket Number | Civil Action No. 09-11256-PBS. |
Parties | Michael HUFFINGTON, Plaintiff, v. T.C. GROUP, LLC, The Carlyle Group, Carlyle Capital Corporation, Ltd., Carlyle Investment Management, LLC and David M. Rubenstein, Defendants. |
Court | U.S. District Court — District of Massachusetts |
Philip Y. Brown, Paul V. Curcio, Rory Z Fazendeiro, Edward F. Whitesell, Jr. Adler, Pollock & Sheehan, PC, Boston MA, for Plaintiff.
Nicholas J. Boyle, Vidya A. Mirmira Sarah F. Teich, Robert A. Van Kirk, Williams & Connolly LLP, Washington, DC, Kevin Marcus Colmey, Patrick P. Dinardo, Pamela S. Holleman, Sullivan & Worcester LLP, Michael B. Galvin, William A. Haddad, Dwyer & Collora, LLP, Boston, MA, for Defendants.
I. INTRODUCTION
This case involves an investment gone bad. Plaintiff, Michael Huffington, decided to invest in a fund raised by the Carlyle Group ("Carlyle") 1 after discussions with David Rubenstein, the Founder and Managing Director of Carlyle. Plaintiff alleges a violation of Mass. Gen. Laws ch. 110A § 410, negligent misrepresentation, and unfair deceptive trade practices in violation of Mass. Gen. Laws ch. 93A, § 11.
The Carlyle Group defendants 2 move to dismiss the complaint for improper venue. For the reasons stated below, the Court ALLOWS the motion.
In the First Circuit, "a motion to dismiss based upon a forum-selection clause is treated as one alleging the failure to state a claim for which rehef can be granted under Fed.R.Civ.P. 12(b)(6)." Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385 387 (1st Cir.2001). For the purposes of a motion dismiss for improper venue, the Court "tak[es] the allegations in the complaint as true and mak[es] all reasonable inferences in favor of the Plaintiff." Doran V. Mass. Turnpike Auth., 348 F.3d 315, 318 (1st Cir.2003).
On August 29, 2006, the Carlyle Group formed a new fund, Carlyle Capital ("the Fund"), with the stated goal of "achieving] risk-adjusted returns." (Compl. ¶13.) During a meeting at Huffington's home in Boston on October 20, 2006, Rubenstein presented the Fund as an investment opportunity for Huffington. (Id. ¶16.) At the meeting, Rubenstein told Huffington that the Fund would be managed conservatively, and provided Huffington with a brochure stating the same. (Id.¶¶ 16-18.) During their first meeting and through subsequent letters, mailed promotional materials, and telephone conversations prior to the plaintiff's investment, the defendant omitted material information about the leveraging of the Fund. (Id. ¶¶ 16-22.)
The forum selection clause contained in the Subscription Agreement signed by both parties states:
The courts of the State of Delaware shall have exclusive jurisdiction over any action, suit or proceeding with respect to this Subscription Agreement....
On January 9, 2007, Huffington, through the Lanai Living Trust ("the Trust") 3 invested $20,000, 000 in the Fund, and in return received 1, 000, 000 shares. (Compl. ¶30.) On January 26, 2007, two weeks after his investment was finalized, Rubenstein told Huffington that the Fund would be leveraged.4 (Id. ¶ 31.)
Through e-mail and phone conversations from March 5, 2007 until November 15,
2007, Huffington continually inquired about the status of the Fund and was assured that his investment was safe. In
2008, at the time of the margin calls, 5 the Fund was leveraged 32 times for $670 million in equity. (Id. ¶ 49.)
On March 6, 2008, Rubenstein telephoned Huffington to tell him that the Fund had defaulted on its debt. (Id. ¶ 52.) On March 14, 2008, Rubenstein called Huffington again and informed him that the Fund was going under. (Id. ¶ 57.) At that point, the share price had dropped to $0.35 per share, which represents a decrease in value of more than 98 percent from when Huffington purchased shares in 2007. (Id. ¶59.) Two days later. The shareholders of the Fund voted to wind up the Fund. (Id. ¶¶ 58.) Plaintiff alleges that the "losses were a direct result of the extremely risky 32:1 leverage ratio... maintained by the Fund immediately prior to its collapse." (Id. ¶ 61.) Plaintiff lost his entire investment.
III. LEGAL ANALYSIS
The defendants assert that this action must be dismissed because Huffington's claims are controlled by the forum selection clause contained in the Subscription Agreement. Plaintiff responds that his claims are not covered by the forum selection clause, and that enforcement of the clause would violate pubhc policy.
Forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." M/S Bremen v. Zapata Offshore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Forum selection clauses will be honored unless the objecting party can show Id. at 15, 92 S.Ct. 1907. "It is the language of the forum selection clause itself that determines which claims fall within its scope." Rivera v. Centra Medico de Turaho, Inc., 575 F.3d 10, 19 (1st Cir.2009) ( ).
Inc., 241 F.Sd 123, 128 (2d Cir.2001). The general rule is that "contract-related tort claims involving the same operative facts as a parallel claim for breach of contract should be heard in the forum selected by the contracting parties." Lambert v. Kysar, 983 F.2d 1110, 1121-22 (1st Cir.1993).
In light of this caselaw, the Court concludes that the forum selection clause covers the claims asserted in this action. While the claims of misrepresentation may not all arise out of the Subscription Agreement, they all relate to the Subscription Agreement. (See Compl. ¶¶74-76 ( ).) See Northeast Data Sys., Inc. v. McDonnell Douglas Computer Sys. Co., 986 F.2d 607, 609-10 (1st Cir.1993) ( ); see also Doe v. Seacamp Ass'n, Inc., 276 F.Supp.2d 222, 227-228 (D.Mass.2003) ( ); see also id. at 228 ().
Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974) (emphasis in original).
Although the plaintiff alleges that he was induced to purchase the securities by misrepresentation, the plaintiff does not allege that the inclusion of the forum selection clause in the contract was the product of misconduct. Therefore, the forum selection clause is enforceable.
B. Anti-Waiver Provision and Public Policy Exception
Relying on Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 809 N.E.2d 1017 (2004), plaintiff contends that the Massachusetts blue sky law, Mass. Gen. Laws ch 10A, bars the parties from enforcing the forum selection clause contained in the Subscription Agreement. First, Plaintiff argues that the anti-waiver provisions of the Massachusetts blue sky law void the forum selection clause. Mass. Gen. Laws ch. 110A, § 410(g) provides: "Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this chapter or any rule or order hereunder is void." While this provision states that a person may not waive compliance with statutory provisions, it does not prevent a person from agreeing to litigate those rights in a...
To continue reading
Request your trial-
Arabi Gin Co. v. Plexus Cotton, Ltd. (In re, Joseph Walker & Co.)
...“ ‘A margin call usually occurs when the market prices of the securities are falling.’ ” Huffington v. T.C. Grp., L.L.C., 685 F.Supp.2d 239, 241 n.5 (D.Mass.2010), aff'd,637 F.3d 18 (1st Cir.2011) (quoting Black's Law Dictionary 217 (8th ed. 2004)). 15. The CFTC Glossary defines a “futures ......
-
Arabi Gin Co. v. Plexus Cotton, Ltd. (In re Joseph Walker & Co.)
...“ ‘A margin call usually occurs when the market prices of the securities are falling.’ ” Huffington v. T.C. Grp., L.L.C., 685 F.Supp.2d 239, 241 n.5 (D.Mass.2010), aff'd, 637 F.3d 18 (1st Cir.2011) (quoting Black's Law Dictionary 217 (8th ed. 2004)).15 The CFTC Glossary defines a “futures c......
-
Crown v. Kobrick Offshore Fund, Ltd.
...at 51–54, 809 N.E.2d 1017, made clear, the securities act is highly protective of buyers of securities. Cf. Huffington v. T.C. Group, LLC, 685 F.Supp.2d 239, 243 (D.Mass.2010), aff'd, 637 F.3d 18 (2011). We recognize, however, that in Marram I, supra at 44, 809 N.E.2d 1017, the indemnificat......
-
Juaire v. T-Mobile W., LLC
...arguments from its Motion and Reply. Tr. at 4:3-6:9 (Bone). T-Mobile added that two cases it did not cite, see Huffington v. T.C. Grp., LLC, 685 F. Supp. 2d 239 (D. Mass. 2009), and MAR Marketing v. Kalapos, 620 F. Supp. 2d 295 (D. Conn. 2009), "taken together make clearthat the language 'w......