Friday, May 1, 2020

No Substantial Connection

The Nebraska Supreme Court has affirmed the dismissal of a complaint against the Willkie Farr law firm

Thomas Yeransian appeals the district court’s order dismissing his complaint against the law firm of Willkie Farr & Gallagher LLP (Willkie). Willkie had represented Aspen Holdings, Inc. (Aspen), in 2009 and 2010, when Aspen merged with and was acquired by Markel Corporation (Markel). Yeransian, as a representative of Aspen’s former shareholders, brought suit against Willkie to obtain the Aspen attorney-client file for the former shareholders’ dispute with Markel over payments from the merger. The district court found Willkie did not have the requisite minimal contacts with Nebraska for the court to have personal jurisdiction over it. Alternatively, the court found that Yeransian failed to present a claim upon which relief can be granted because Willkie had represented Aspen, and not its shareholders, and that Markel, as the surviving entity, was entitled to control of the file. Yeransian challenges both grounds. For the reasons set forth herein, we affirm.

Facts

In 2009 and 2010, Willkie represented Aspen, a Delaware corporation with its principal place of doing business in Nebraska, in Aspen’s merger with Markel, a Virginia corporation. At the time of the merger and now, some of Aspen’s shareholders reside in Nebraska. For the purpose of this representation, Willkie and Aspen entered into an engagement letter whereby Willkie stated that the client would be “Aspen Holdings, Inc.,” and explained that “[t]his engagement does not create an attorney-client relationship with any related persons or entities, such as parents, subsidiaries, affiliates, employees, officers, directors, shareholders or partners.”

In July 2010, Aspen and Markel agreed to the terms of the merger and executed an “Agreement and Plan of Merger” (Merger Agreement). In October 2010, Aspen and Markel also executed a “Contingent Value Rights Agreement” (CVR Agreement). Pursuant to the Merger Agreement, the merger transaction closed later in 2010. Under both the CVR
Agreement and the Merger Agreement, the parties elected to have Delaware law govern.

Jurisdiction

Yeransian’s arguments are solely based upon Willkie’s presence within Nebraska during the Aspen and Markel merger. It is undisputed that Willkie’s principal place of business is in New York and that it does not have a Nebraska office. Further, there are no allegations that Willkie has had a Nebraska presence outside of its work surrounding the merger. Accordingly, there is an insufficient basis to establish general personal jurisdiction and the issue before us is whether the district court had specific personal jurisdiction over Willkie...

Willkie was not a party to the CVR Agreement or the merger. The notice provision of the CVR Agreement was insufficient to demonstrate or create an attorney-client relationship between Willkie and the CVR Holders. Willkie’s engagement letter, signed by a representative of Aspen, explained Willkie and Aspen’s attorney-client relationship and specified that Willkie represented Aspen as a corporate entity and did not represent Aspen’s shareholders. Willkie’s relationship with Nebraska was through its representation of Aspen, which did have a presence in Nebraska but which is no longer an entity. Now, neither Willkie nor Aspen have any continuing obligations under the CVR Agreement. Instead, the CVR Agreement requires Markel to pay the CVR Holders according to existing valuations of certain Markel activities. As the district court correctly found, Willkie’s representation of Aspen in the 2010 merger did not extend to the CVR Holders and is insufficient to establish a continuing substantial connection
between Willkie and Nebraska under the operative facts of the current litigation.

The file

Markel, as the surviving corporation, is the current, rightful owner of Willkie’s attorney-client file on Aspen’s 2010 merger. Yeransian’s argument that Willkie has a continuing presence in Nebraska because the CVR Holders reside in Nebraska and are the current, rightful owners of Willkie’s attorney-client file with Aspen is, therefore, without merit.

The case is YERANSIAN v. WILLKIE FARR and can be accessed at this link.  (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/05/the-nebraska-supreme-court-has-affirmed-the-dismissal-of-a-complaint-against-the-willkie-farr-law-firm-thomas-yeransian-appe.html

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