NPS LLC v. Ambac Assurance Corp.

190 F. Supp. 3d 212, 2016 U.S. Dist. LEXIS 72712, 2016 WL 3149647
CourtDistrict Court, D. Massachusetts
DecidedJune 3, 2016
DocketCIVIL ACTION NO. 08-11281-DPW
StatusPublished

This text of 190 F. Supp. 3d 212 (NPS LLC v. Ambac Assurance Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NPS LLC v. Ambac Assurance Corp., 190 F. Supp. 3d 212, 2016 U.S. Dist. LEXIS 72712, 2016 WL 3149647 (D. Mass. 2016).

Opinion

• MEMORANDUM AND ORDER.

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

I have granted summary judgment in favor of defendant Ambac Assurance Corporation (“Ambac”) on its breach-of-con[215]*215tract counterclaim against plaintiff NPS LLC (“NPS”). See NPS LLC v. Ambac Assurance Corp., 706 F.Supp.2d 162 (D.Mass.2010). The issues remaining before me now in this matter are those of the damage amount and the amount of attorneys’ fees and costs due Ambac under the parties’ 2006 Insurance Agreement (the “Agreement”).

The parties are prepared to stipulate to the amount due Ambac for the breach of the contract I have found and to the method for calculating pre-judgment interest. They dispute and have submitted opposing briefs on the question of attorneys’ fees and costs. After resolving that attorneys’ fees and costs question, I will direct the parties to submit an agreed upon prejudgment interest figure bringing prior calculations up to the anticipated June 17, 2016 date for entry of final judgment in an amount certain for Ambac based upon and incorporating the fee and cost determinations reflected in this Memorandum.

I. BACKGROUND

NPS, an affiliate of the New England Patriots, issued $282 million of long-term bonds in 2000 in. order to fund the construction of Gillette Stadium. NPS obtained financial guaranty insurance for its bonds from Ambac. In 2006, NPS refinanced the bonds, and issued new thirty-year bonds. NPS. again sought and obtained financial guaranty insurance from Ambac. The 2006 Agreement between the parties included a Guaranteed Premium provision providing that “if the Offered Securities are paid in full or the Policy is terminated for any reason prior to January 1, 2017, the Issuer shall nevertheless pay to Ambac, upon such final payment date or termination date, the present value, using a discount rate of 7%, of each of the Annual Premiums scheduled to be paid from and including such date until January 1, 2017 ...(Compl., Ex. B, § 1.02 [hereinafter “Agreement”].)

Following the crash of the housing market and ensuing credit crisis in late 2007 and early 2008, national credit rating agencies placed a negative outlook warning on Ambac’s AAA or Aaa credit rating. Within six months, the agencies downgraded Am-bac’s credit rating. In February 2008, NPS’s bonds, which were auction-rate bonds sold weekly or monthly, experienced a failed auction, which increased considerably the interest rate payable on the bonds. In May 2008, NPS decided to redeem the bonds in full, thereby triggering the Guaranteed Premium provision of the Agreement. NPS subsequently refused to pay the Guaranteed Premium, and, on July 2, 2008, Ambac sent NPS a demand letter giving notice of default under the Agreement. DLA Piper US LLP (“DLA Piper”), which had provided counsel to Ambac during the 2006 insurance transaction, assisted Ambac in this attempt to recover the monies owed under the Guaranteed Premium provision.

NPS filed suit against Ambac in Massachusetts Superior Court on July 8, 2008, alleging eight counts, including breach-of-contract claims, negligent and intentional misrepresentation, and a violation of Massachusetts’s consumer protection act, Mass. Gen. Laws ch. 93A. The crux of NPS’s action was that Ambac had misrepresented the security of its high credit rating at the formation of the 2006 Agreement. Shortly following the filing of the complaint, Ambac engaged the New York firm of Patterson Belknap Webb & Tyler LLP (“Patterson Belknap”) to handle the litigation. After engaging Patterson Belk-nap, DLA Piper was largely inactive in its representation of Ambac in this case. However, because Patterson Belknap has no presence in this federal judicial district, Ambac also hired the Boston office1 of [216]*216McDermott Will & Emery LLP (“McDer-mott”) to act as local counsel.

After Ambac successfully removed the case to this court, it filed an answer to NPS’s complaint and counterclaimed for breach of contract, seeking to enforce the Guaranteed Premium, provision. The par: ties then embarked on a rocky road of negotiations and discovery that was both highly contentious and far-reaching in scope. In addition to party discovery, Am-bac served subpoenas on related and unrelated third parties, including Goldman Sachs, Inc., the National Football League, New England Patriots, L.P., Kraft Family, Inc., Kraft Group LLC, and Bingham McCutcheon LLP. The parties clashed as to both the scope and format of discovery, exchanging a number of letters' in failed attempts to compromise and coordinate. Following receipt of NPS’s request for discovery on December 22, 2008, Ambac decided to move for summary judgment and seek a stay of party discovery. NPS refused to agree to any such stay, Ambac subsequently filed motions to stay party discovery — but not third party discovery— and for summary judgment on all counts including its own counterclaim. Both motions were granted in full, and upon granting summary judgment in favor of Ambac on its counterclaim, I directed the parties to submit a joint statement regarding the amount owed under the Guaranteed Premium provision and to brief the issue of attorneys’ fees and expenses due to Ambac under the Agreement.

' II. ANALYSIS

In a joint statement, the parties have agreed that, based upon my resolution of the question of liability, the balance due Ambac under the Guaranteed Premium provision is $2,740,432.18, plus interest as accrued thereafter under § 2.03 of the Agreement. Accordingly, I will adopt the balance due figure approved of by the parties and enter judgment for Ambac incorporating that amount.

However, the parties were unable to come to a similarly non-contentious resolution on the issue of attorneys’ fees due Ambac. As a result of its engagement of Patterson Belknap; McDermott; and DLA Piper, Ambac seeks a total of $683,897.95 in attorneys’ fees and expenses.1 NPS contests this amount as unreasonable and excessive.

Section 1.03 of the parties’ Agreement states that NPS “will pay all costs and expenses incurred by Ambac in connection with ’the enforcement of this Agreement (including, without limitation, all reasonable fees and disbursements of Ambac’s counsel).” Such a contractual provision for attorneys’ fees and expenses is valid under New York law,2 A.G. Ship Maint. Corp. v. Lezak, 69 N.Y.2d 1, 511 N.Y.S.2d 216, 503 N.E.2d 681, 683 (1986) (per curiam), and neither party disputes that Ambac is entitled to reasonable attorneys’ fées and costs related to this litigation. See also Diamond D Enters. USA, Inc. v. Steinsvaag, 979 F.2d 14, 18 (2d Cir.1992) (finding that a contractual attorneys’ fee provision includes recovery for all reasonable expenses incurred by enforcing the contract and addressing related counterclaims or affirmative defenses).

[217]*217Under New York law, “[a]n award of attorneys’ fees pursuant to ... a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered.” M. Sobol, Inc, v. Wykagyl Pharmacy, Inc., 282 A.D.2d 438, 723 N.Y.S.2d 88, 89 (2001) (citation and quotation marks omitted). Consequently, I must determine whether Ambae’s request for $683,897.95 in attorneys’ fees and expenses is a reasonable award given the circumstances of the case. See Diamond D Enters. USA, Inc.,

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Bluebook (online)
190 F. Supp. 3d 212, 2016 U.S. Dist. LEXIS 72712, 2016 WL 3149647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nps-llc-v-ambac-assurance-corp-mad-2016.