18‐2669‐cv(L) Narayanan v. Sutherland Global Holdings, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of September, two thousand nineteen.

PRESENT: PIERRE N. LEVAL, DENNY CHIN, JOSEPH F. BIANCO, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

MUTHU NARAYANAN, Plaintiff‐Counter‐Defendant‐ Appellant‐Cross‐Appellee,

v. 18‐2669‐cv; 18‐2678‐cv; 19‐1648‐cv SUTHERLAND GLOBAL HOLDINGS INC., Defendant‐Counter‐Claimant‐ Appellee‐Cross‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PLAINTIFF‐COUNTER‐ JOHN R. CUTI (Daniel Mullkoff, on the brief), DEFENDANT‐APPELLANT‐ Cuti Hecker Wang LLP, New York, New York. CROSS‐APPELLEE:

FOR DEFENDANT‐COUNTER‐ JOSEPH B. SCHMIT (Sean C. McPhee and CLAIMANT‐APPELLEE‐ Richard Weingarten, on the brief), Phillips CROSS‐APPELLANT: Lytle LLP, New York, New York.

Appeal from a judgment of the United States District Court for the

Western District of New York (Telesca, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is VACATED

and the case is REMANDED for further proceedings.

Plaintiff‐Counter‐Defendant‐Appellant‐Cross‐Appellee Muthu Narayanan

(ʺNarayananʺ) and Defendant‐Counter‐Claimant‐Appellee‐Cross‐Appellant Sutherland

Global Holdings, Inc. (ʺSutherlandʺ) appeal from a judgment entered May 17, 2018,

granting in part and denying in part Narayananʹs and Sutherlandʹs cross‐motions for

summary judgment. The district courtʹs reasoning was set forth in a decision and order

entered May 16, 2018, and in a subsequent opinion entered August 8, 2018. We assume

the partiesʹ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal, to which we refer only as necessary to explain our decision to

vacate the district courtʹs judgment.1

1 Sutherland also appeals from the district courtʹs order entered May 7, 2019, denying its motion pursuant to Fed. R. Civ. P. 60(b) and 62.1(a) to vacate the district courtʹs dismissal of its

2 In his March 25, 2015 complaint, Narayanan alleged that Sutherland

breached two contracts by refusing to pay him the money he was owed for selling

Sutherland shares. On June 15, 2015, Sutherland filed its answer and counterclaim,

alleging that Narayanan breached his fiduciary duty owed to the company. After

discovery, Narayanan moved for summary judgment and Sutherland moved for partial

summary judgment.

In its summary judgment decision, the district court granted in part and

denied in part the partiesʹ respective motions. Narayanan v. Sutherland Glob. Holdings,

Inc., No. 15‐CV‐6165 T,

(W.D.N.Y. May 16, 2018). On appeal,

Narayanan appeals the dismissal of his breach of contract claim related to one of the

stock buyback agreements, and Sutherland cross‐appeals the dismissal of its breach of

fiduciary duty counterclaim.

BACKGROUND

The evidence supporting each cross‐motion for summary judgment is

viewed in the light most favorable to the nonmoving party. Sutherland is a Delaware

corporation with its headquarters in Rochester, New York. Narayanan, a citizen and

resident of India, is a former director of Sutherland who helped establish Sutherland

counterclaim based on newly discovered evidence. In light of our decision to vacate the district courtʹs judgment and remand for further proceedings, this appeal is rendered moot.

3 Global Services Pvt. Ltd. (ʺSGS‐Indiaʺ) and was hired as the Vice President of Finance

for SGS‐India in or around March 2000.

On or about October 21, 2004, Sutherland granted Narayanan an option to

purchase 300,000 shares of its stock, pursuant to the Senior Management Performance

Equity Incentive Plan Stock Option Agreement (the ʺStock Option Agreementʺ).

A. The TPG Transaction and Stock Buyback Program

In fall of 2014, Sutherland entered an agreement to sell approximately

one‐third of its stock to the private equity firm TPG Capital (the ʺTPG Transactionʺ).

On or about October 7, 2014, Sutherland offered option holders the opportunity to

exercise their options through the Sutherland Global Holding Option Exercise and

Stock Buyback Program (the ʺBuyback Programʺ). As part of the Buyback Program,

Sutherland offered to purchase 30% of the shares resulting from the net exercise of the

employeesʹ stock options (the ʺ30% Buyback Agreementʺ). On October 9, 2014,

Narayanan submitted a signed copy of the 30% Buyback Agreement to Freed Maxick

CPAs, P.C. (ʺFreed Maxickʺ) ‐‐ an accounting firm hired by Sutherland to administer the

Buyback Program. Sutherland does not contest the district courtʹs conclusion that it

agreed to the 30% Buyback Agreement and that this agreement is valid and enforceable.

In October 2014, Narayanan contacted Mike Russo (ʺRussoʺ), a director at

Freed Maxick and interim‐CFO at Sutherland, about selling back 100% of his Sutherland

shares, instead of only 30% of his shares as originally agreed. Narayanan asked Russo

4 to ask Dilip Vellodi (ʺVellodiʺ), Sutherlandʹs founder, CEO and controlling shareholder,

about purchasing 100% of Narayananʹs shares.

On October 21, 2014, Mark Forte, a staff accountant and supervisor at

Freed Maxick, sent an email to Narayanan containing documents related to the

repurchase of 100% of Narayananʹs shares (the ʺ100% Buyback Agreementʺ).

Narayanan signed the 100% Buyback Agreement and emailed it to Freed Maxick on

October 22, 2014. The TPG Transaction closed on October 23, 2014. Sutherland,

however, never paid Narayanan the amount due to him under either the 30% Buyback

Agreement or the 100% Buyback Agreement.

B. The India Land Acquisition

Separately, but relevant to Sutherlandʹs counterclaim for breach of

fiduciary duty, Sutherland began a project in or about 2009 to acquire 26 acres of land in

Perumbakkam, India (the ʺIndia Land Acquisitionʺ). A Sutherland officer engaged S.

Ventkataramanan (ʺRamananʺ) to serve as the land aggregator for the India Land

Acquisition. Ramanan and Kamalesh Kumar Sheft (ʺKamaleshʺ) were also co‐owners of

a land‐aggregation business called RJK Investments, Inc. (ʺRJKʺ).

The board of Sutherland Development Company Private Limited (ʺSDCʺ),

a Sutherland subsidiary, authorized Narayanan to oversee the India Land Acquisition.

Between May 2010 and July 2013, Narayanan made 36 separate advances to Ramanan

totaling 304 million rupees (approximately $4,230,000 at todayʹs exchange rate) for 20

5 land sales that had not been completed or registered. In connection with these

advances, Narayanan collected promissory notes and undated signed checks from

Ramanan in the amount advanced. In July or August 2013, Ramanan was arrested and

imprisoned due to criminal activity in a separate land aggregation project. Sutherland

contends that it received nothing of value in return for the millions of rupees advanced

to Ramanan. Ramanan later provided SDC with eight mortgage deeds for land in a

different area, the value of which arguably exceeded the amount of money SDC had

advanced to Ramanan for land sales that had not been previously completed or

registered.

C. Narayananʹs Business Dealings

The record also reflects that Narayanan and members of his family had

prior business dealings with RJK and Ramanan. Specifically, Narayananʹs father and

sister loaned approximately 8 million rupees to RJK, the company co‐owned by

Ramanan and Kamalesh. In the spring of 2010, these loans remained outstanding.

Kamalesh asked Narayanan to repay RJKʹs outstanding loan to Narayananʹs father and

sister. Narayanan agreed to do so. RJK made several payments to Narayanan between

October 2010 and January 2011. RJK still owes Narayanan approximately 7.6 million

rupees. Furthermore, in or around 2009, Narayanan personally made a loan to RJK and

transferred 300,000 rupees to an account in Ramananʹs name at Kamaleshʹs direction.

RJK still owes Narayanan for this loan.

6 STANDARD OF REVIEW

We review a district courtʹs decision on cross‐motions for summary

judgment de novo, construing the evidence with respect to each motion in the light most

favorable to the non‐moving party. Scholastic, Inc. v. Harris,

(2d Cir.

2001); see also Terwilliger v. Terwilliger,

(2d Cir. 2000). ʺSummary

judgment is appropriate where there exists no genuine issue of material fact and, based

on the undisputed facts, the moving party is entitled to judgment as a matter of law.ʺ

Novella v. Westchester Cty.,

(2d Cir. 2011) (citation omitted).

DISCUSSION

We address first the dismissal of Narayananʹs breach of contract claim and

second the dismissal of Sutherlandʹs breach of fiduciary duty counterclaim.

A. Breach of the 100% Buyback Agreement Claim

The district court erred in granting summary judgment here because there

exist numerous disputed factual issues relating to the formation and validity of the

100% Buyback Agreement.

On the issue of contract formation, the record reveals factual disputes over

whether Sutherland agreed to buy back 100% of Narayananʹs shares, as well as whether

it ratified such a contract. See In re Adelphia Recovery Tr.,

(2d Cir. 2011)

(ʺ[R]atification may be express or implied, or may result from silence or inaction.ʺ

(citing 57 N.Y. Jur. 2d Estoppel, Ratification, and Waiver § 88)); Winston v. Mediafare

7 Entmʹt Corp.,

(2d Cir. 1985) (ʺUnder New York law, parties are free to

enter into a binding contract without memorializing their agreement in a fully executed

document.ʺ).

For example, Russo, Sutherlandʹs interim‐CFO, allegedly told Narayanan

that he would submit Narayananʹs request for a 100% buyback to Vellodi, and later

allegedly reported back to Narayanan, ʺYou got it; you got the hundred percent.ʺ Russo

then instructed Freed Maxick to prepare the documents and to record the companyʹs

repurchase of 100% of Narayananʹs shares on the company books. Given this evidence,

there is a genuine dispute over whether Sutherland in fact agreed to the purchase of

100% of Narayananʹs option stock.

Moreover, other evidence in the record suggests that Sutherland believed

and agreed that the 100% Buyback Agreement was valid. Vellodi at least arguably

acknowledged that the 100% Buyback Agreement was valid, but that payment was

being withheld only because of Narayananʹs alleged breach of his fiduciary duty. See J.

Appʹx at 1679 (Vellodi testifying that, ʺunder normal circumstances giving Muthu

[Narayanan] his options would have been a no‐brainer,ʺ but that he was not given them

due to Vellodiʹs belief that Narayanan had breached his fiduciary duties). A

spreadsheet sent by a Sutherland employee also recorded that Narayanan ʺexercised his

Option on October 9, 2014 and sold 100% of the resulting shares (valued at $1,912,165)

back to Sutherland.ʺ J. Appʹx at 1672. This evidence, together with other evidence in

8 the record relating to the actual and/or apparent authority of Russo and Freed Maxick

to bind Sutherland in these respects, created genuine issues of material fact for trial.

Sutherland relies heavily on Provision 18 of its ʺ2004 Performance Equity

Incentive Planʺ in arguing that board approval was required as a matter of law.

Sutherland persuaded the district court that this provision required board approval

(which was not obtained) for the repurchase of Narayananʹs option stock. The district

court granted summary judgment in favor of Sutherland, rejecting Narayananʹs contract

claim, based on that interpretation of Provision 18. We believe this was error.

Provision 18 was ambiguous and arguably meant something quite

different. Its requirement of board approval arguably applied not to a company

decision to repurchase option stock but to the issuance of options for stock subject to a

future right of repurchase. If so, the provisionʹs requirement of board approval had no

application to the contract claimed by Narayanan because, at the time of the issuance of

the options, no such contract right existed. Furthermore, even if the provision meant

what the district court ruled, factual questions still exist as to apparent authority and

ratification.

Accordingly, we hold that the district court erred in granting summary

judgment dismissing the breach of contract claim.

9 B. Breach of Fiduciary Duty Counterclaim

The district court also erred in granting summary judgment to Narayanan

on Sutherlandʹs breach of fiduciary duty counterclaim as the record reveals several

triable issues of fact.

For example, the record shows that between May 2010 and July 2013,

Narayanan issued 36 separate advances to Ramanan totaling 304 million rupees for 20

land sales that were not completed or registered. The record includes evidence with

respect to nine plots of land where Narayanan issued ʺtwo or more advances to

Ramanan on different dates without ever getting the land registered.ʺ J. Appʹx at 1638.

The record includes evidence that Narayanan sent multiple cash advances to Ramanan

for the same plots of land. While Narayanan offers explanations for these actions, these

factual disputes may only be resolved at trial. Moreover, Narayanan testified that he

ʺha[s] no ideaʺ what happened to the advances he gave to Ramanan. J. Appʹx at 1639.

Narayanan further testified that he did not look into what Ramanan did with the

advances he had given him and ʺha[s] no ideaʺ whether there existed any land contracts

between Ramanan and landowners. J. Appʹx at 1639.

Furthermore, the record shows that Narayanan had several business

dealings with RJK and Ramanan. In or around 2008, Narayananʹs father and sister

loaned approximately 8 million rupees to RJK. Further, Narayanan personally made a

loan to RJK and transferred 300,000 rupees to an account in Ramananʹs name at

10 Kamaleshʹs direction. These loans remain outstanding and there is a disputed issue of

fact as to whether Narayanan disclosed to Vellodi or any other Sutherland employee the

existence of all of the outstanding loans with RJK. Given the evidence of Narayananʹs

involvement with RJK and Ramananʹs interest in RJK, a reasonable jury could find that

Narayanan paid Ramanan millions of rupees in the manner he did out of self‐interest,

to keep RJK running as a viable business and to stay in Ramananʹs good graces. This

evidence, together with the evidence of the funds transferred to Ramanan, created a

factual issue regarding Narayananʹs potential self‐dealing and is relevant to the breach

of fiduciary duty counterclaim.

* * *

Accordingly, we VACATE the judgment of the district court and

REMAND the case for further proceedings.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

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