Osseiran v. International Finance Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
SALAH N. OSSEIRAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 06-336 (RWR)
)
INTERNATIONAL FINANCE ) UNSEALED
CORPORATION, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Salah Osseiran brings claims for promissory

estoppel and breach of a confidentiality agreement against the

International Finance Corporation (“IFC”), alleging that IFC

failed to sell to Osseiran its shares of the Middle East Capital

Group (“MECG”) after representing that it would do so, and that

IFC divulged Osseiran’s potential share purchase to an

unauthorized party.1 IFC has moved for summary judgment on both

claims. Because Osseiran has not shown that genuine issues of

material fact exist regarding the elements essential to his claim

for promissory estoppel and because IFC is entitled to judgment,

1
Osseiran’s claim for breach of contract was previously
dismissed under Federal Rule of Civil Procedure 12(b)(6), see
Osseiran v. Int’l Fin. Corp., 498 F. Supp. 2d 139, 146-147
(D.D.C. 2007), and his motion for reconsideration of the
dismissal was denied. IFC’s claim that it was immune from suit
also was denied. Id. at 143-145, aff’d, 552 F.3d 836 (D.C. Cir.
2009).
 - 2 -

IFC’s motion will be granted as to that claim. However, because

Osseiran has presented evidence that the parties entered into an

enforceable confidentiality agreement, and whether a breach of

that agreement occurred remains in dispute, IFC’s motion will be

denied as to the claim for breach of that agreement.

BACKGROUND2

Osseiran is a shareholder in the Middle East Capital Group

(“MECG”). In the summer of 2005, he sought to gain a controlling

stake in MECG by purchasing the shares held by IFC, an

international organization and private arm of the World Bank, and

by Barclays Capital, among other shareholders. Osseiran v. Int’l

Fin. Corp., 498 F. Supp. 2d 139, 142 (D.D.C. 2007). IFC, acting

on behalf of itself and Barclays Capital, and Osseiran negotiated

for IFC to sell Osseiran its MECG shares, but IFC ultimately sold

its shares to a third party. Id.

The summary judgment filings set forth the following facts

that are material to Osseiran’s claims arising from those

negotiations and as to which there is no genuine dispute. On

September 5, 2005, Osseiran called Jan van Bilsen, an IFC

investment manager, and expressed interest in buying IFC’s and

Barclay’s shares in MECG. Osseiran asked van Bilsen to keep

their negotiations confidential, and van Bilsen verbally agreed.

2
The background of this case is discussed more fully in
Osseiran v. Int’l Fin. Corp., 498 F. Supp. 2d 139 (D.D.C. 2007).
 - 3 -

(Def.’s Mot., Ex. 1, van Bilsen Decl. ¶¶ 1, 3; Ex. 5, van Bilsen

Dep. 21:12-14, 23:21-24:2.) Van Bilsen stated that he agreed to

keep the negotiations confidential because “that’s what we always

do with our clients.” (Id. 24:4-5.) After the phone call, van

Bilsen sent an e-mail to a colleague at IFC, relating the

conversation and explaining that “[Osseiran] approaches us first

and said it must be treated very confidentially.” (Pl.’s Opp’n,

Ex. 12.) Later in the e-mail, he reiterated that “Osseiran

stressed confidentiality and I told him we will treat it

accordingly . . . ,” and he concluded the e-mail with a short

section entitled “Next Steps” that stated “[w]e should look into

this seriously and ensure there are no reputation/corp governance

issues with us selling to Osseiran quietly. Please handle and

discuss. . . . Keep it confidential.” (Id.)

On October 3, 2005, Osseiran sent an e-mail to van Bilsen

formally presenting to IFC Osseiran’s offer to purchase all of

IFC’s MECG shares. (Def.’s Mot. Summ. J. (“Def.’s Mot.”), Ex.

19; id., Ex. 8, Osseiran Dep. 124:17-126:2.) The e-mail had two

parts, the first setting forth the “Conditions” of the offer, and

the second setting forth the “Terms.” “Ultimate confidentiality

of this offer” appeared under the “Conditions” heading. (Def.’s

Mot., Ex. 19.) The “Terms” heading included the proposed
 - 4 -

purchase price of the shares and the terms of payment. (Id.)3

The parties agreed on the terms of the purchase and Osseiran sent

an e-mail to van Bilsen on November 18, 2005 purporting to

“confirm” the agreement. (Def.’s Mot., Ex. 12.) Van Bilsen

responded the same day asking Osseiran to “confirm” that Osseiran

“accept[ed] that [IFC’s] acceptance is subject to documentation -

- meaning separate sales agreements,” along with additional bank

guarantees. (Id.; Def.’s Mot., Def.’s Stmt. of Material Facts

Not in Dispute (“Def.’s Stmt.”) ¶ 18.) Van Bilsen’s e-mail also

asked for confirmation of Osseiran’s understanding that the

“sales agreements come into force and affect” only after

execution of the agreements and receipt of the guarantees.

(Def.’s Mot., Ex. 12.) IFC’s investment managers lack authority

to finalize transactions with third parties to buy or sell

investments without executed documentation. (Def.’s Stmt. ¶ 8.)

In a November 19, 2005 response to van Bilsen, Osseiran expressly

accepted these conditions. (Id. ¶ 18; Osseiran Dep. 152:20-

153:6.)

Van Bilsen forwarded a draft sales agreement to Osseiran on

November 26, 2005 that stated on its face that the parties did

not intend to be bound until the execution of a final contract.

The draft provided:

3
Osseiran conceded that IFC never accepted the offer
embodied in the e-mail. (Osseiran Dep. 126:3-13.)
 - 5 -

[t]his draft document is not a contract or an offer to
enter into a contract. Only the document as executed
by IFC and Mr. Osseiran will contain the terms that
bind them. Until the document is executed by IFC and
Mr. Osseiran, neither IFC nor Mr. Osseiran intends to
be bound.

(Def.’s Mot., Ex. 13.) IFC officials informed Osseiran via a

telephone call on December 19, 2005 that IFC had decided to

suspend its sale of IFC shares to Osseiran. (Def.’s Stmt. ¶ 22.)

Osseiran stated that during the call, an IFC representative

“informed [him] that because of the complaints of other MECG

shareholders IFC had decided to suspend, place on hold or delay

the closing of the transaction by which IFC was to sell its MECG

shares to [him].” (Pl.’s Opp’n to Def.’s Mot. Summ. J. (“Pl.’s

Opp’n”), Decl. of Salah N. Osseiran (“Osseiran Decl.”) ¶ 1.)

Osseiran stated that, both in that conversation and afterwards,

IFC representatives “repeatedly assured [him] that IFC still

intended to sell its MECG shares to [him] and was not soliciting

other buyers, but that, for political reasons, [IFC] needed to

first confirm that it did not need the approval of the other MECG

shareholders to sell its shares.” (Id. ¶ 2.) In his deposition,

Osseiran stated that the day after receiving notice that IFC was

suspending the sale, Barclays contacted him in order to “pursue

the deal that IFC broke.” (Osseiran Dep. 43:20-44:6.) In an e-

mail he sent to van Bilsen on December 22, 2005, Osseiran

“invite[d] [van Bilsen] to sign immediately the ‘Share sale

agreement’ that has been negotiated, proposed, and drafted by
 - 6 -

IFC” and “urge[d] [him] to conclude the agreement[.]” (Def.’s

Mot., Ex. 15.)

Thereafter, Osseiran entered agreements to purchase MECG

shares from other shareholders. Later in December, he agreed

upon language for a formal stock purchase agreement with Barclays

and concluded the agreement on January 9, 2006. (Osseiran Dep.

42:12-43:1.) He entered into an agreement to purchase shares

from Financial Investment Luxembourg on December 31, and made

additional agreements with other shareholders over the following

months. (Id.; Def.’s Mot., Ex. 17, Pl.’s Supp. Resps. to Def.’s

First Set of Interrogatories at 3 (listing date, seller, share

amount, and price for Osseiran’s purchases of MECG shares).)

Osseiran and IFC never finalized or executed a sales agreement

and IFC never sent Osseiran a signed stock transfer form, which

was necessary to complete a sale of IFC’s MECG shares. (Def.’s

Stmt. ¶ 20.) Osseiran eventually sold the other MECG shares he

purchased at higher prices than those he paid to obtain them.

(Id. ¶ 37.)

Osseiran’s amended complaint alleges that IFC committed a

breach of the confidentiality agreement by telling the MECG chair

in December of 2005 that Osseiran was buying MECG shares from IFC

and Barclays (Am. Compl. ¶¶ 27, 48), and IFC’s answer denies the

allegation (Ans. ¶¶ 27, 48). The parties have neither discussed

nor resolved this dispute in their briefs.
 - 7 -

DISCUSSION

Summary judgment is warranted upon a showing that “there is

no genuine dispute as to any material facts and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute

is “genuine” if a reasonable jury considering the evidence could

return a verdict in favor of the nonmoving party. Holcomb, 433

F.3d at 895. A fact is “material” where “a dispute over it might

affect the outcome of a suit under the governing law.” Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). In considering a motion for summary judgment, a court

should draw all “justifiable inferences” in favor of the

nonmovant, Liberty Lobby, 477 U.S. at 255, and “eschew making

credibility determinations or weighing the evidence,” Czekalski

v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). However, “[t]he

nonmoving party cannot defeat summary judgment by ‘simply

show[ing] that there is some metaphysical doubt as to the

material facts.’” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986)). The nonmoving party must demonstrate

that there is sufficient evidence requiring the claimed factual

dispute to be resolved by a jury or judge at trial. Moore, 571

F.3d at 66. Facts identified by the moving party in its

statement of material facts are deemed admitted unless
 - 8 -

controverted by the nonmovant in its statement of genuine issues

filed in opposition. Local Civ. R. 7(h)(1).

I. PROMISSORY ESTOPPEL

In order to prevail on a promissory estoppel claim, a

plaintiff must establish “(1) a promise; (2) that the promise

reasonably induced reliance on it; and (3) that the promisee

relied on the promise to his detriment.” Daisley v. Riggs Bank,

372 F. Supp. 2d 61, 71 (D.D.C. 2005); Novecon, Ltd. v. Bulgarian-

Am. Enter. Fund, 967 F. Supp. 1382, 1388 (D.D.C. 1997) (“Under a

theory of promissory estoppel, [the plaintiff] must be able to

show that it relied reasonably on the promises given by [the

defendant].”) Under District of Columbia law, when the plaintiff

advances a promissory estoppel claim, the absence of an express,

enforceable contract is presumed. Bldg. Srvcs. Co. v. Nat’l R.R.

Passenger Corp., 305 F. Supp. 2d 85, 95 (D.D.C. 2004)). However,

because reliance on an indefinite promise is unreasonable, a

promissory estoppel claim must rest on “a promise with definite

terms on which the promisor would expect the promisee to rely.”

In re U.S. Office Prods. Co. Sec. Litig., 251 F. Supp. 2d 58, 73

(D.D.C. 2003); Novecon, Ltd. v. Bulgarian-Am. Enter. Fund, 190

F.3d 556, 565 (D.C. Cir. 1999) (“Although ‘for purposes of

estoppel, a promise need not be as specific and definite as a

contract, . . . in the final analysis there must be a promise’ --

and it must be more than merely a promise to ‘bargain in good
 - 9 -

faith.’”) (quoting Bender v. Design Store Corp., 404 A.2d 194,

196–97 (D.C. 1979)). The promissory estoppel theory is an

“inherently equitable doctrine,” Moss v. Stockard, 580 A.2d 1011,

1035 (D.C. 1990), that “may be invoked only when injustice

otherwise would not be avoidable,” Kauffman v. Int’l Bhd. of

Teamsters, 950 A.2d 44, 49 n.7 (D.C. 2008) (internal quotation

marks and alterations omitted).

Osseiran has not proffered evidence on which a reasonable

jury could find that he relied reasonably on an IFC promise to

execute the share deal. “A promise is ‘an expression of

intention that the promisor will conduct himself in a specified

way or bring about a specified result in the future, communicated

in such a manner to a promisee that he may justly expect

performance and may reasonably rely thereon.’” Choate v. TRW,

Inc., 14 F.3d 74, 77-78 (D.C. Cir. 1994) (quoting 1 CORBIN ON

CONTRACTS § 13 (1963)) (emphasis added). A promise to do

something does not reasonably induce reliance where, as here, the

promissor repeatedly and expressly conditions fulfilling the

promise on the execution of formal documentation. In Bender, a

promissory estoppel action to enforce an alleged promise to lease

commercial space from the plaintiffs, the D.C. Court of Appeals

found no sufficiently definite promise where a defendant’s

“direct statements that there existed no binding lease were

sufficient to negate any inference that [it] had made such a
 - 10 -

promise,” because “[t]hrough two letters sent in the early stages

of negotiations, [the defendant’s] agents made it clear that

absent execution of a formal lease agreement, they intended no

binding commitment to lease.” Bender, 404 A.2d at 196; see also

Doll v. Grand Union Co., 925 F.2d 1363, 1372-73 (11th Cir. 1991)

(affirming summary judgment for defendant on promissory estoppel

claim where defendant had given “repeated caveats that it did not

intend to be bound until a final lease agreement was signed”).

Like what occurred in Bender, the defendant here made it clear on

the face of the draft sales agreement that “[o]nly the document

as executed by IFC and Mr. Osseiran will contain the terms that

bind them.” (Def.’s Mot., Ex. 13 (emphasis added).) Osseiran

acknowledges that the draft share purchase agreement states that

the parties did not intend to be bound until the document was

executed, but contests the significance of this fact, arguing

that “th[e] statement was made only by IFC and was made after the

date on which Osseiran contends a binding agreement was reached.”

(Pl’s Opp’n, Pl.’s Statement of Material Facts (“Pl.’s Stmt.”) ¶

2.) As is noted above, Osseiran’s contract claim, that a

“binding agreement” was reached and then breached, was earlier

dismissed for failure to state a claim. Osseiran, 498 F. Supp.

2d at 146-147. Further, Osseiran’s contention that the statement

of intent not to be bound “was made only by IFC” misunderstands

the promissory estoppel inquiry. The express statement by IFC
 - 11 -

that it would consider itself bound only by an executed document

put Osseiran on notice that the agreement was preliminary. It

thus undercuts the reasonableness of his relying on IFC’s

promises to finalize the sale.

Moreover, even if the draft agreement’s language were

insufficient to notify Osseiran that the agreement was not

binding, IFC’s communication on December 19, 2005 that it was

suspending the sale clearly alerted Osseiran to the fact that IFC

did not consider itself bound. Notably, Osseiran did not begin

to purchase additional MECG shares from other shareholders until

December 31, 2005, after he learned of IFC’s suspension of their

potential sale. As evidence that he reasonably believed the sale

was imminent, Osseiran cites repeated reassurances from IFC

representatives that the sale was placed on hold merely in order

to resolve whether IFC needed approval from other MECG

shareholders and in order to secure confirmation from

shareholders that IFC was free to sell its shares. (Osseiran

Decl. ¶¶ 1-5; Pl.’s Opp’n at 4 (“IFC’s own documents support

Osseiran’s assertion that, during the suspension period, IFC

intentionally and repeatedly led [Osseiran] to believe that IFC

would fulfill its promise to sell its MECG shares to him upon the

remaining shareholders’ confirmation that IFC was free to sell

its shares.”).) These assurances, however, communicate IFC’s

determination that it needed to resolve outstanding issues and
 - 12 -

confirm its authority before proceeding. On this backdrop, no

reasonable jury could find Osseiran relied reasonably on the

draft sales agreement in order to proceed with his bid to gain a

majority stake. See, e.g., Novecon, 967 F. Supp. at 1388

(finding reliance unreasonable where the plaintiff acted “in

reliance on a ‘promise’ that was expressly conditioned on

ratification by the . . . Board of Directors”). Osseiran himself

characterizes the situation as one in which IFC “understandably

wanted to keep the option of selling to Osseiran open,” and notes

that “IFC continued its policy of keeping its options open until

at least February 14, 2006, just prior to the February 16, 2006

shareholders’ meeting after which IFC agreed to sell its shares

to a third party.” (Pl.’s Opp’n at 5 (emphasis added).) In sum,

Osseiran has failed to establish a triable issue that IFC made a

definite promise that reasonably induced him to rely to his

detriment.4

4
The parties also dispute whether Osseiran suffered any
detriment by relying on IFC’s promise. IFC argues that no
detriment resulted because Osseiran realized a profit when he
sold the MECG shares he had purchased from other shareholders in
his bid to gain a majority stake. (Def.’s Mem. of P. & A. in
Supp. of Mot. Summ. J. (“Def.’s Mem.”) at 9.) Osseiran counters
that the detriment was not limited to his purchase of additional
shares but also his “refraining from purchasing shares that would
have offset those that IFC refused to sell to him.” (Pl.’s Opp’n
at 6.) Osseiran also alleges that he “was forced to pay a higher
price for the stock that he purchased from other MECG
shareholders.” (Am. Compl. ¶ 49.) Because the finding that
Osseiran’s reliance was not reasonable defeats his claim for
promissory estoppel, the existence of detriment need not be
addressed.
 - 13 -

II. BREACH OF CONFIDENTIALITY

Osseiran alleged that the parties agreed in September 2005

that their negotiations were to be kept confidential. (Am.

Compl. ¶ 21.) In order to establish an enforceable agreement

under District of Columbia law, the parties both must (1) agree

on all material terms and (2) intend to be bound. Perles v.

Kagy, 473 F.3d 1244, 1249 (D.C. Cir. 2007); Kramer Assocs., Inc.

v. Ikam, Ltd., 888 A.2d 247, 251 (D.C. 2005). “The two

requirements are closely intertwined because even if the parties

intend to be bound by an agreement, the court must be able to

determine the terms of the agreement before it can enforce them.”

Strauss v. NewMarket Global Consulting Group, LLC, 5 A.3d 1027,

1033 (D.C. 2010). “While a ‘meeting of the minds,’ or mutual

assent, ‘is most clearly evidenced by the terms of a signed

written agreement . . . such a signed writing is not essential to

the formation of a contract. The parties’ acts at the time of

the making of the contract are also indicative of a meeting of

the minds.’” Kramer Assocs., 888 A.2d at 252 (quoting Davis v.

Winfield, 664 A.2d 836, 838 (D.C. 1995)). In addition, “an

express contract requires an offer and acceptance, and must be

supported by consideration.” Ghahremani v. Uptown Partners, LLC,

Civil Action No. 05-1270 (CKK), 2005 WL 3211463, at *16 (D.D.C.

Nov. 13, 2005). The party asserting the existence of the
 - 14 -

contract bears the burden of proof. Jack Baker, Inc. v. Office

Space Dev. Corp., 664 A.2d 1236, 1238 (D.C. 1995).

Osseiran contends that the parties entered into a

confidentiality agreement independent of the share purchase deal

on or about September 5, 2005. (Pl.’s Opp’n at 7.) IFC argues

that Osseiran conceded in his sworn deposition testimony that

there was no separate agreement regarding confidentiality.

(Def.’s Reply at 13.) Osseiran’s memorandum in opposition to

IFC’s motion for summary judgment advances arguments that are in

tension with Osseiran’s prior statements.5 (Compare Pl.’s Opp’n

5
Osseiran alternately characterizes the confidentiality
agreement as a condition of Osseiran’s offer to negotiate, as a
condition of his offer to purchase IFC’s shares, and as an
independent arrangement. Osseiran, for example, stated in his
declaration that “[w]hen [he] first approached van Bilsen about
the possibility of my purchasing IFC’s shares in MECG, [he] made
clear that [his] offer to enter into negotiations toward th[e]
end [of purchasing IFC’s shares] were [sic] conditioned upon
IFC’s agreeing to keep our discussions confidential[,]” that van
Bilsen “immediately agreed to this condition,” and that “both
[parties] agreed to restrict knowledge of the negotiations to
those persons who participated in them.” (Osseiran Decl. ¶ 8.)
Osseiran stated that he “subsequently conditioned [his] formal
offer to purchase the MECG shares of IFC and Barclays on the
continued maintenance of confidentiality” and that “upon [IFC’s]
acceptance of [Osseiran’s] offer, the confidentiality agreement
was incorporated into the share purchase agreement.” (Id. ¶ 9.)
IFC contends that, if the confidentiality agreement is viewed as
part and parcel of the share purchase agreement, it must be found
unenforceable since the sales agreement was found not to
constitute an enforceable contract. (Def.’s Mem. of P. & A. in
Supp. of Mot. Summ. J. (“Def.’s Mem.”) at 10.) Osseiran
maintains, however, that even though the share purchase agreement
was found not to constitute an enforceable contract, the
confidentiality agreement may essentially be found severable and
to have “reverted to its separate form.” (Pl.’s Opp’n at 8 &
n.3.) IFC also argues that Osseiran misapprehends the legal
 - 15 -

at 7 (arguing that “the record shows that on or about September

5, 2005 Osseiran and IFC entered into an agreement [to maintain

confidentiality]”) with Osseiran Dep. 124:12-16 (“Q: So what

you’re telling us is [t]hat it was not a separate agreement but

it was part of what you believe was your agreement with IFC to

purchase the shares. A: Well, the -- yes.”).) Nevertheless,

“[t]he determination of whether an oral contract exists as an

enforceable agreement is a question of law.” Strauss, 5 A.3d at

1032. While Osseiran’s prior testimony evinces some confusion

regarding the legal significance of various exchanges with IFC,

it is not dispositive of, nor does it concede, the question of

contract formation.

The record is clear that the parties had earlier discussed

keeping their negotiations confidential in a telephone

operation of a “condition” to his offer to purchase shares.
(Def.’s Reply at 12.) IFC maintains, correctly, that Osseiran’s
inclusion of “ultimately confidentiality” as a “condition” to his
e-mail offer to purchase shares, standing alone, would not give
rise to an enforceable contract, because IFC ultimately rejected
Osseiran’s offer to purchase shares and the draft sales agreement
was found unenforceable. See Psaromatis v. English Holdings I,
LLC, 944 A.2d 472, 481-82 (D.C. 2008) (explaining that “[w]hen a
condition precedent has not been performed . . ., ‘the rights of
both parties [are] at an end’”) (quoting Brier v. Orenberg, 90
A.2d 832, 833 (D.C. 1952)). IFC’s arguments regarding the
independent legal significance of a condition to an offer are not
dispositive, however, because additional objective evidence
supports the conclusion that the parties entered into a
confidentiality agreement independent of the e-mail offer to
purchase shares.
 - 16 -

conversation on September 5, 2005. Van Bilsen stated that he

acquiesced in Osseiran’s request for confidentiality:

Q. But before [Osseiran] put an offer in writing, you
had already discussed confidentiality, had you not?
A. Well, yes. . . . Yes, it was mentioned. . . .
Q. And you informed [Osseiran] that you would treat it
confidentially, the negotiations confidentially,
correct?
A. Yeah. I said I would, as we normally do, indeed
keep, we keep our business confidential.

(Van Bilsen Dep. 25:16-26:6.) Following that conversation, van

Bilsen sent an e-mail to a colleague at IFC, in which he stated

that Osseiran had called and expressed interest in purchasing

IFC’s MECG shares. Van Bilsen explained that “[Osseiran]

approaches us first and said it must be treated very

confidentially.” Later in the e-mail he explained that “Osseiran

stressed confidentiality and I told him we will treat it

accordingly . . . .” (Pl.’s Opp’n, Ex. 12 (emphasis added).)

The e-mail concluded with a section entitled “Next Steps” that

stated “[w]e should look into this seriously and ensure there are

no reputation/corp governance issues with us selling to Osseiran

quietly. Please handle and discuss. . . . Keep it

confidential.” (Id.)

The oral communications exchanged between van Bilsen and

Osseiran and the objective evidence that both parties took the

confidentiality requirement seriously reflect that van Bilsen

intended to be bound by his promise of confidentiality. The
 - 17 -

September 5 e-mail demonstrates van Bilsen’s clear understanding

that Osseiran expected that the negotiations not be disclosed.

Van Bilsen’s statement that he told Osseiran that IFC would treat

the negotiations “accordingly” shows that van Bilsen assented to

Osseiran’s request for confidentiality. Moreover, van Bilsen’s

instruction to his colleague to “[k]eep it confidential”

constitutes an independent action reflecting that van Bilsen

intended to carry out, and to be bound, by the assurance he gave

Osseiran. See Duffy v. Duffy, 881 A.2d 630, 637 (D.C. 2005)

(“The intentions of parties to a contract can be found from

written materials, oral expressions and the actions of the

parties.”). Notably absent from van Bilsen’s e-mail is any

hesitation or ambiguity regarding his understanding of or intent

to abide by Osseiran’s request for confidentiality.

IFC argues that “even if there had been some agreement,

Plaintiff’s failure to identify the material terms renders the

alleged agreement void.” (Pl.’s Reply at 13.) See Rosenthal v.

Nat’l Produce Co., 573 A.2d 365, 369-70 (D.C. 1990) (internal

quotation marks omitted) (recognizing that “[v]agueness of

expression, indefiniteness and uncertainty as to . . . the

essential terms of an agreement, have often been held to prevent

the creation of an enforceable contract”). Osseiran contends

that the terms were not vague or indefinite because van Bilsen

“clearly understood that Osseiran expected that the negotiations
 - 18 -

were not to be disclosed to persons who were not involved in

them.” (Pl.’s Opp’n at 8 n.2.)

Courts that have found that vagueness of terms precluded the

creation of enforceable oral contracts typically confronted

contract terms considerably more complex than those at issue

here. For example, in Strauss, the court found an alleged oral

contract unenforceable where is concerned “a complex business

transaction,” and omitted critical details regarding the parties’

division of fees generated from stock investments. Strauss, 5

A.3d at 1029. In Bond v. U.S. Dep’t of Justice, the court

addressed an alleged oral contract between the plaintiff and a

newspaper concerning the time, content, and focus of an article

concerning a plaintiff. The court concluded that the asserted

contract’s “alleged terms are indefinite at best and mutually

exclusive at worst,” where the plaintiff had argued that the

parties had agreed the article would both exclude material

“encroach[ing] upon the subject matter of the plaintiff’s ‘life

story’” and “focus on [the plaintiff’s] ‘legal battle,’” which,

the court concluded, “necessarily entail[ed] the discussion of

parts of his life story.” Bond v. U.S. Dep’t of Justice, 828 F.

Supp. 2d 60, 79-80 (D.D.C. 2011). Because a contract must

possess a modicum of clarify in order “for the parties to

understand how they are expected to perform the contract itself,”

the Bond court found the plaintiff’s allegations regarding
 - 19 -

conflicting material terms failed to plausibly establish the

existence of an enforceable contract. Id. at 80 (internal

quotation marks omitted); see also New Econ. Capital, LLC v. New

Markets Capital Grp., 881 A.2d 1087, 1096 (D.C. 2005) (finding no

enforceable oral contract existed where the parties did not agree

whether the defendant’s consulting services should be rendered or

agree on the rate of compensation for those services).

By contrast, the agreement alleged here does not concern

complex terms of payment, complicated business transactions, or

contain contradictory terms. Given the straightforward aim of

the contract at issue here -- to preclude disclosure of the

negotiations -- the parties’ oral agreement is sufficiently clear

as to the material terms. “Examples of terms that [the District

of Columbia Court of Appeals] ha[s] recognized as material under

certain agreements include ‘subject matter, price, payment terms,

quantity, quality, and duration.’” Strauss, 5 A.3d at 1033 n.4

(quoting Rosenthal, 573 A.2d at 370). In his deposition,

Osseiran expressed the agreement in the following general terms:

Q. . . . What do you believe were the terms of the
confidentiality agreement?
A. That they shouldn’t –- we shouldn’t, me and them,
shouldn’t really be talking about this deal to anybody until
it is done with.
Q. And that’s the entire agreement, what you just told me?
A. It’s from A to Z, no leakage during the discussion,
negotiation, consummation, closing.

(Osseiran Dep. 122:13-21.) Van Bilsen’s understanding comported

with Osseiran’s basic expectation that the negotiations were to
 - 20 -

be kept confidential. (See Van Bilsen Dep. 24:13-14 (stating

that he “assume[d] [Osseiran] want[ed] to keep confidential [sic]

between us.”))

In the context of a straightforward agreement not to

disclose business negotiations, duration and the identity of the

parties privy to disclosure are the material terms. An oral

agreement need not provide for every potentiality -- Osseiran

does not argue, for example, that the alleged agreement

contemplated or provided for the parties’ ability to disclose

negotiations post-closing or after negotiations have ceased. See

Rosenthal, 573 A.2d at 370 (quoting V’Soske v. Barwick, 404 F.2d

495, 500 (2d Cir. 1968)) (recognizing that “‘[a]ll the terms

contemplated by the agreement need not be fixed with complete and

perfect certainty for a contract to [be enforceable],’” since

“[a]ll agreements have some degree of indefiniteness and some

degree of uncertainty.”). The agreement here is complete with

regard to its duration because the parties generally understood

that they were not to disclose the negotiations while they were

ongoing. The bulk of the parties’ negotiations occurred from

early September through November 2005, and van Bilsen stated that

he did not disclose the negotiations to individuals outside IFC

during that period. (Van Bilsen Dep. 22:13-23:16.) At the end

of November, van Bilsen sent Osseiran the draft of the share

sales agreement, and then represented through the first couple
 - 21 -

weeks of December that IFC was awaiting bank guarantees and

execution of the document. (Def.’s Stmt. ¶ 7.) It was within

this period of still-open negotiations that the alleged breach of

the contract, by means of disclosure to MECG, occurred. (See Am.

Compl. ¶ 27 (“On or about December 15, 2005, IFC’s representative

on MECG’s Board of Directors informed MECG’s chairman, who is

also an MECG shareholder, that IFC had sold its MECG shares to

Osseiran.”).) IFC represents that it notified Osseiran that IFC

had decided to suspend their deal on December 19, 2005, four days

after the alleged disclosure of the negotiations. (Def.’s Stmt.

¶ 22.)

With regard to the parties privy to disclosure, there is no

genuine dispute that keeping the negotiations confidential

required that IFC not disclose them to individuals who were not

involved in the negotiations. In an e-mail responding to Penny

Walker, an official at Barclays Capital who was involved in

Osseiran’s proposal to purchase shares from both IFC and

Barclays, van Bilsen discussed the proposed sales agreement and

specifically explained that “[t]he reason why [he] ha[d] not cc-

ed all is because Osseiran has stressed confidentiality to me

even within our organisations.” (Pl.’s Opp’n, Ex. 13 (emphasis

added).) Because the parties agreed to refrain from disclosure

to individuals not involved in their negotiations for at least

the period during which the negotiations were ongoing, the oral
 - 22 -

agreement meets the requirement “completeness.” Jack Baker, 664

A.2d at 1238.

IFC also contends that the confidentiality agreement is not

a valid contract because it was not supported by consideration.

(Def.’s Mem. at 11-12.) Osseiran stated that he did not give

anything in exchange for the promise of confidentiality (Osseiran

Dep. 123:6-12), but argues that the agreement was supported by

consideration because “it was the price IFC paid for Osseiran’s

agreement to enter into negotiations and it was the result of the

parties’ exchange of promises.” (Pl.’s Opp’n at 8.) District of

Columbia courts “‘will not inquire into the adequacy of’

consideration, even where it is ‘arguably slight,’ as long as it

is ‘legally sufficient.’” Washington Inv. Partners of Delaware,

LCC v. Sec. House, K.S.C.C., 28 A.3d 566, 574 (D.C. 2011)

(quoting Riggs v. Aetna Ins. Co., 454 A.2d 818, 821 (D.C. 1983)).

“‘An exchange of promises’ . . . constitutes legally sufficient

consideration, ‘so long as it is bargained-for.’” Id. at 574-75

(quoting Pearsall v. Alexander, 572 A.2d 113, 118 (D.C. 1990)

(citing Restatement (Second) of Contracts § 75 (1932)); see also

Joao v. Cenuco, Inc., 376 F. Supp. 2d 380, 384 n.4 (S.D.N.Y.

2005) (finding that a written confidentiality agreement covering

discussions regarding patent acquisition and the parties’

potential partnership would not be invalidated for lack of
 - 23 -

consideration where it contained mutual promises prohibiting

either party from disclosing information they discussed).

The record does not reflect extensive bargaining between the

parties over the terms of confidentiality. (See Van Bilsen Dep.

25:10-12 (“It’s not that [Osseiran] said I want to discuss

confidentiality and we discussed it for a long period of time.”);

Osseiran Decl. ¶ 8 (stating that van Bilsen “immediately agreed”

to keep the parties’ discussions confidential when Osseiran first

approached him about purchasing IFC’s shares).) However,

protracted discussions are not necessary to establish

consideration, particularly where, as here, the terms of the

agreement -- not to disclose the negotiations between IFC and

Osseiran to individuals not involved in them -- are not

complicated. An exchange of promises suffices so long as “[e]ach

party undertook to do something it would otherwise have no legal

obligation to do.” Eastbanc, Inc. v. Georgetown Park Assocs. II,

L.P., 940 A.2d 996, 1004 (D.C. 2008). Here, there is evidence

that IFC assented to Osseiran’s request for confidentiality and

Osseiran in turn agreed to enter negotiations over the purchase

of IFC’s shares, actions that neither party had a legal duty to

perform. Moreover, the record reflects that Osseiran repeatedly

emphasized and requested that the parties’ negotiations be kept

confidential. As is discussed above, the e-mail offer’s

inclusion of confidentiality, standing alone, did not create a
 - 24 -

contract. However, it constitutes extrinsic evidence in support

of Osseiran’s position that he “made clear that [his] offer to

enter into negotiations toward th[e] end [of purchasing IFC’s

shares] were [sic] conditioned upon IFC’s agreeing to keep our

discussions confidential.” (Osseiran Decl. ¶ 8.)

In his deposition, van Bilsen stated that he viewed the

agreement to keep the negotiations confidential as merely IFC’s

“normal business practice.” (Van Bilsen Dep. 27:13.) He

testified as follows:

Q. Did you understand that you had a, an agreement with
Mr. Osseiran to keep the negotiations confidential?
A. Yes, but . . . in the context that we as I see
always keep business confidential.

(Id. at 25:2-6.) A business practice and a contractual term,

however, are not mutually exclusive. The parties’ own agreement

determines the “subject matter” of an enforceable contract.

Rosenthal, 573 A.2d at 370. Where, as here, a party seeks

assurances and agreement of compliance with the specific practice

of maintaining confidentiality, a promissor’s assent to those

terms may elevate the arrangement beyond a mere professional

courtesy. Osseiran requested confidentiality from IFC with

regard to specific discussions regarding a proposed commercial

transaction and van Bilsen, in the phone call, agreed. The fact

that van Bilsen’s September 5 e-mail to his colleague repeatedly

mentioned the request for confidentiality and instructed the

colleague to adhere to it suggests that the arrangement was not
 - 25 -

simply business as usual. Because the promise here was

adequately bargained for, the evidence of consideration suffices

as a matter of law.

In sum, Osseiran has carried his burden to present evidence

of an enforceable contract, namely, that the parties agreed on

the material terms of the confidentiality agreement, manifested

an intent to be bound, and supported the agreement with

consideration. Thus, IFC’s motion as to the breach of the

confidentiality agreement claim will be denied.

CONCLUSION AND ORDER

Osseiran has not produced evidence tending to show that he

reasonably relied on an IFC promise to finalize the stock sales

agreement. He has, however, presented evidence that the parties

entered into an enforceable confidentiality agreement, and

whether IFC violated that agreement remains in dispute. IFC’s

motion for summary judgment therefore will be granted as to

Osseiran’s claim for promissory estoppel and denied as to the

claim for breach of a confidentiality agreement. Accordingly, it

is hereby

ORDERED that the defendant’s motion [58] for summary

judgment be, and hereby is, GRANTED IN PART AND DENIED IN PART.

Judgment is entered for the defendant on the plaintiff’s claim

for promissory estoppel. It is further
 - 26 -

ORDERED that the parties confer and file by September 4,

2012 a joint proposed redacted version of the Memorandum Opinion

that can be filed on the public record and a joint status report

and proposed order governing further proceedings.

SIGNED this 31st day of July, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge