Exeter Bancorporation, Inc. v. Kemper Securities Group, Inc.

58 F.3d 1306, 1995 WL 396013
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 3, 1995
DocketNo. 94-1996
StatusPublished
Cited by5 cases

This text of 58 F.3d 1306 (Exeter Bancorporation, Inc. v. Kemper Securities Group, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Exeter Bancorporation, Inc. v. Kemper Securities Group, Inc., 58 F.3d 1306, 1995 WL 396013 (8th Cir. 1995).

Opinion

LEVIN H. CAMPBELL, Senior Circuit Judge.

On December 15, 1991, Exeter Bancorpo-ration, Inc. (“Exeter”), an investment firm, brought this action in the district court against Blunt Ellis & Loewi (“BEL”), a division of Kemper Securities Group, Inc. (“Kemper”).1 Exeter and BEL had entered into a contract under which BEL agreed to help Exeter raise more than $4 million in capital. After the attempt to raise the capi[1309]*1309tal failed, Exeter sued. The district court2 granted summary judgment to BEL on all counts. Exeter now appeals. We affirm.

I.

Exeter is an investment firm run by James Stolpestad and Elden Ranee, two individuals with some experience in the banking and real estate industries. In late 1989, Stolpestad and Ranee conceived of a plan to acquire four Minnesota banks. They signed letters of intent to purchase the banks in late 1989 and 1990; purchase agreements were executed by the spring of 1990. Needing to raise more than $4 million in capital to finance the acquisition, Stolpestad and Ranee had earlier approached BEL, an investment bank, in November of 1989. After several meetings, BEL agreed to help Exeter raise the necessary capital.

Exeter and BEL entered into a letter of agreement in March of 1990. In the letter, BEL agreed to act as Exeter’s exclusive financial advisor in its attempt to raise capital for this investment project. BEL agreed to assist Exeter in arranging the structure and placement of debt and equity financing. The contract contemplated the issuance of stock and the private placement of such stock. Either party could terminate the contract upon 30 days notice.

In April of 1990, according to Exeter, BEL Senior Vice President Jon Bruss met with Stolpestad and Ranee and suggested that the stock be issued through a public offering, rather than through a private placement. Bruss argued that a public offering would expand the universe of investors and therefore increase the chances of the stock offering’s success. Exeter agreed to the public offering, though it alleges that it did so reluctantly, concerned about the added cost and complexity that would be involved. Over the next several months, Exeter prepared the paperwork necessary for such a financing.

In August of 1990, BEL and Exeter entered into another letter of agreement, which explicitly superseded the earlier agreement and which reflected their decision to attempt to raise the money through a public rather than private offering. In this letter, BEL agreed to be Exeter’s “exclusive financial advisor” with respect to the transaction and to assist Exeter in preparing the various necessary documents and filings. BEL also agreed to proceed with a “firm commitment” underwriting once the prospectus in the offering was approved by the SEC and became effective. Under such an arrangement, an underwriter agrees to purchase an issuer’s shares after having had an opportunity to assess the interest in the market and after certain other conditions are met. The letter went on to state,

This letter does not constitute an agreement to underwrite securities, or an agreement to enter into any such agreement, but reflects our present intention of proceeding to work with you on the proposed financing. It does not constitute a commitment on the part of Exeter, Loewi or any other underwriter except as to assumption and payment of expenses as provided.

Under the agreement, BEL would not receive any underwriting fees or brokerage commissions unless the offering was successfully completed. BEL would be entitled, however, to recover certain expenses it incurred in preparing the public offering. The agreement was terminable at will.

Pursuant to the August 1990 letter, BEL and Exeter worked together to market the common stock to investors. In August of 1990, BEL’s corporate finance committee drew up a marketing plan for the Exeter offering. Due to the small size of the offering and the nature of the banks to be acquired, BEL decided to market the stock primarily from its Minneapolis office to local and institutional investors who might have more of an interest in the venture. BEL also attempted to market the stock to institutional investors through its Milwaukee office. In October of 1990, fearing that the stock offering was not going well, Exeter asked BEL to sell the stock from its other offices. BEL, however, refused, concluding that there would be no interest in the offering from any other regions.

[1310]*1310The marketing effort was ultimately unsuccessful, as BEL and Exeter were unable to find enough investors interested in buying the stock. According to Exeter, it failed because BEL was not sufficiently equipped to handle such a project and because BEL focused too narrowly on local investors only. According to BEL, the marketing effort— which Exeter knew would be difficult — failed for general lack of interest on the part of investors, exacerbated by the savings and loan crisis, the Persian Gulf war, and the recession.

Exeter terminated the agreement in November of 1990, after BEL refused Exeter’s demand that it purchase the stock and underwrite the offering. At the time of the termination, the offering had not yet become effective under SEC authority. Exeter’s subsequent efforts to place the stock itself ultimately failed. BEL sought compensation under the agreement for certain out-of-pocket expenses that it had incurred. Exeter subsequently brought this suit, seeking to hold BEL liable for the failure of the offering and its refusal to purchase and underwrite the stock. Exeter alleged the following state law claims: (1) breach of contract, (2) fraudulent misrepresentation, (3) fraudulent concealment, and (4) professional malpractice. BEL counterclaimed for its expenses. The district court entered summary judgment for BEL on all counts. This appeal followed.

II.

Exeter argues on appeal that the district court erred in granting summary judgment against it on three of its four claims: fraudulent misrepresentation, fraudulent concealment, and professional malpractice. Exeter also appeals from the district court’s entry of judgment on BEL’s counterclaim for expenses under the contract. Exeter does not, however, appeal from judgment on its breach of contract claim. With respect to that claim, the district court held that under the terms of the August letter, BEL was under no obligation to purchase the stock and to underwrite the offering, since the offering had not yet become effective at the time of Exeter’s demand. The court further held that BEL was under no implied obligation to use its best efforts to complete the offering. That BEL met all of its obligations under the terms of the contract is thus res judicata. The only causes of action on appeal come from outside that contract.

We review the district court’s decision de novo, applying the same summary judgment standard. Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). To prevail on a motion for summary judgment, the moving party must demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. In reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-movant, drawing all reasonable inferences in its favor. AgriStor Leasing v.

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Cite This Page — Counsel Stack

Bluebook (online)
58 F.3d 1306, 1995 WL 396013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exeter-bancorporation-inc-v-kemper-securities-group-inc-ca8-1995.