Hannon Armstrong & Co. v. Sumitomo Trust & Banking Co.

973 F.2d 359, 1992 WL 202348
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 24, 1992
DocketNos. 91-2658, 91-2662
StatusPublished
Cited by10 cases

This text of 973 F.2d 359 (Hannon Armstrong & Co. v. Sumitomo Trust & Banking Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hannon Armstrong & Co. v. Sumitomo Trust & Banking Co., 973 F.2d 359, 1992 WL 202348 (4th Cir. 1992).

Opinion

OPINION

DONALD RUSSELL, Circuit Judge:

Sumitomo Trust & Banking Company appeals the district court’s determination on remand of the amount of the profits which the bank obtained by engaging in a certain transaction in violation of an agreement not to compete, and which the Fourth Circuit determined should therefore be placed in constructive trust for the benefit of Ap-pellee Hannon Armstrong. Hannon Armstrong cross-appeals. As explained below, we affirm in part, reverse in part, and remand with instructions.

I.

This is an appeal of the district court’s disposition on remand of our previous decision in Eden Hannon & Co. v. Sumitomo Trust and Banking Co., 914 F.2d 556 (4th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1414, 113 L.Ed.2d 467 (1991). The initial Eden Hannon action in the district [361]*361court involved claims by plaintiff Eden Hannon & Company (“EHC”), now the Ap-pellee Hannon Armstrong & Company, that defendant Sumitomo Trust & Banking Company (“Sumitomo” or “the bank”) misappropriated EHC’s trade secrets and breached an agreement not to compete with EHC in bidding for a type of investment vehicle offered by the Xerox Corporation.

In the summer of 1988, prior to the initial district court action, Sumitomo bank approached EHC, an investment analyst firm engaged in the business of valuing copying machine lease portfolios, about purchasing a portfolio of Xerox copying machine leases through EHC. In anticipation of placing a bid on behalf of Sumitomo for the purchase of this type of investment vehicle, EHC required Sumitomo to execute a “Nondisclosure and Noncircumvention Agreement” in order to protect confidential information which EHC shared with Sumitomo as part of their negotiations. 914 F.2d at 557. In violation of this noncompetition agreement, and after taking possession of EHC’s confidential information, Sumitomo independently bid on a portfolio of Xerox copying machine leases in December of 1988, won the bid, and purchased that copier lease portfolio. 914 F.2d at 560. EHC also engaged in the bidding for the December 1988 copier lease portfolio. However, the Xerox Corporation ranked EHC’s bid third among bids received for investment.

EHC sued. While finding that Sumitomo breached the Nondisclosure and Noncir-cumvention Agreement, the district court struck EHC’s claim for monetary damages, finding that since the Xerox Corporation ranked EHC’s bid third, EHC had not proven monetary damages resulting from Sumi-tomo’s bid with sufficient certainty, because it was most likely that the second place bidder would have otherwise won the portfolio. Eden Hannon, 914 F.2d at 557. EHC appealed. This circuit affirmed the district court’s finding that Sumitomo breached the agreement not to compete, but reversed the district court’s refusal to award monetary damages on the breach claim. After observing that equitable remedies are available under Virginia law1 to rectify the harm caused by violation of noncompetition agreements, and to compensate such harm where money damages are speculative, this court imposed a constructive trust in favor of EHC on Sumito-mo’s profits from purchasing the December 1988 Xerox copier lease portfolio. We further. directed the district court to “determine the amount of Sumitomo’s profits on that portfolio, and enter an order awarding that amount to EHC.” 914 F.2d at 565. The district court’s determination on remand of Sumitomo’s profits on the purchase of the December 1988 Xerox copier lease portfolio is now before this court on appeal.

II.

The investment vehicle which Sumitomo purchased is known as a Xerox Partnership Asset Strategy (“PAS”) portfolio. An investor in a PAS portfolio purchases from the Xerox Corporation the right to receive a stream of monthly payments on a group of copying machines which Xerox has leased to its customers, plus the right to receive the sales price of the leased copiers if customers exercise an option under their leases to purchase the copiers at the end of their lease terms. Essentially, in a PAS portfolio transaction, the Xerox Corporation initially lends its customers the sum of all the monthly rental payments which Xerox’s customers are obligated to make on their lease of the copying machines. When an investor such as Sumitomo purchases a PAS portfolio, the investor then buys Xerox’s right to collect the customers’ monthly payments on the financing which Xerox has extended to its copying machine’ customers. In substance, a PAS investor like Sumitomo thereby assumes the role, previously held by Xerox, as lender on the financing which Xerox customers used to lease copying machines with an option to buy. Some portion of the stream of month[362]*362ly payments which a PAS investor like Sumitomo has purchased the right to collect represents a return on the investor’s purchase price for the PAS portfolio, i.e., represents a return of the investor’s principal; some portion of the monthly payments represents the investor’s revenues on the PAS portfolio, i.e., represents interest on the investor’s principal.

Thus, as the district court observed on remand, an investor like Sumitomo receives monthly payments on the December 1988 PAS portfolio which are in part recovery of principal and in part interest revenue. The interest revenue component of each monthly payment is calculated by applying the annual interest rate specified by the terms of the PAS portfolio, 10.935% per year, to Sumitomo’s outstanding principal at the end of the preceding month. Payments on the December 1988 PAS portfolio are scheduled such that Sumitomo recovers its entire principal investment, or purchase price, of $35,207,897 by July, 1992.2

In its memorandum opinion on remand, the district court divided its analysis of Sumitomo’s profits on the December 1988 PAS portfolio into “past profits,” i.e., profits Sumitomo earned on the portfolio prior to the district court’s February 14, 1991, proceedings on remand, and “future profits,” i.e., profits earned from the date of the remand proceedings up to the maturity of the PAS portfolio in July 1992. We first address the past profits issue.

A.

In calculating past profits, the district court found that the Appellee Hannon Armstrong and Appellant Sumitomo stipulated that the interest revenue components of the monthly payments which Sumitomo had received on the portfolio from inception in December 1988 through February 14, 1991, totalled $5,186,638.3 (J.A. at 1529; see also J.A. at 1843.) But, while the parties agreed on the amount of pre-February 14, 1991, interest revenue, the parties disputed the amount and kind of expenses which should be deducted from the interest revenues to determine Sumitomo's past profits on the December 1988 PAS portfolio. Sumitomo argued that the expense deductions from the $5,186,638 interest revenue figure should include a market cost of funds deduction based on the 9.735% market interest rate as of the date that Sumito-mo purchased the PAS portfolio in December 1988.

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973 F.2d 359, 1992 WL 202348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hannon-armstrong-co-v-sumitomo-trust-banking-co-ca4-1992.