FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 5, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
THE PIONEER CENTRES HOLDING
COMPANY EMPLOYEE STOCK
OWNERSHIP PLAN AND TRUST AND
ITS TRUSTEES, Matthew Brewer, Robert
Jensen, and Susan Dukes,
No. 15-1227
Plaintiffs - Appellants,
v.
ALERUS FINANCIAL, N.A.,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:12-CV-02547-RM-MEH)
_________________________________
Bruce E. Rohde, Campbell Killin Brittan & Ray, LLC, Denver, Colorado, for Plaintiffs -
Appellants.
Shannon Wells Stevenson (Michael T. Kotlarczyk with her on the briefs), Davis
Graham & Stubbs LLP, Denver, Colorado, for Defendant - Appellee.
_________________________________
Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
I. INTRODUCTION
The Pioneer Centres Holding Company Employee Stock Ownership Plan and
Trust (the “Plan” or “ESOP”) and its trustees sued Alerus Financial, N.A. (Alerus) for
breach of fiduciary duty in connection with the failure of a proposed employee stock
purchase. The district court granted summary judgment to Alerus after determining the
evidence of causation did not rise above speculation. The Plan appeals, claiming the
district court erred in placing the burden to prove causation on the Plan rather than
shifting the burden to Alerus to disprove causation once the Plan made out its prima facie
case. In the alternative, the Plan contends that even if the district court correctly assigned
the burden of proof, the Plan established, or at the very least raised a genuine issue of
material fact regarding, causation. We affirm.
II. BACKGROUND
A. Factual History
1. The Proposed Transaction
Pioneer Centres Holding Company (Pioneer) owned and operated (through its
subsidiaries) several automobile dealerships in Colorado and California, including Land
Rover, Audi, and Porsche. In 2001, Pioneer sponsored the Plan under the Employee
Retirement Income Security Act of 1974 (ERISA). Matthew “Jack” Brewer (Pioneer’s
founder), Robert Jensen (Pioneer’s President), and Susan Dukes (Pioneer’s Chief
Financial Officer), served as the Plan’s trustees. Mr. Brewer initially owned 100% of
Pioneer’s stock. Over the course of several years, Mr. Brewer sold 37.5% of his Pioneer
stock to the Plan and retained 62.5% ownership.
2
In 2009, the Plan’s trustees “proposed a stock transaction whereby the ESOP
would become the 100% owner of Pioneer” (the “Transaction”). The Transaction
included a stock redemption agreement, whereby Pioneer would redeem most of Mr.
Brewer’s shares, and a stock purchase agreement, whereby the Plan would purchase the
remaining shares. Mr. Jensen and Ms. Dukes also held stock options that they would
exercise and that Pioneer would then redeem as part of the Transaction. Because the
trustees’ interests in the transaction were adverse to those of the Plan, and to avoid any
conflict of interest issues, the Plan hired Alerus as an independent “transactional trustee.”
Alerus’s job was to determine whether, and on what terms, the Plan should purchase
Mr. Brewer’s shares.
2. Correspondence Between Pioneer and Land Rover
Pioneer’s dealership agreement with Land Rover required approval before any
changes in ownership or management occurred, stating: “[T]here will be no change in the
foregoing [dealership ownership and management] in any respect without [Land Rover’s]
prior written approval.” The agreement also granted Land Rover a right of first refusal to
purchase any of Pioneer’s stock offered for sale.
Pioneer sent a letter to Land Rover on August 17, 2009, in which it asked Land
Rover to consent to Mr. Brewer’s transfer of his remaining Pioneer stock to the Plan to
make the Plan the 100% owner of Pioneer. The letter included the proposed terms of the
Transaction and informed Land Rover that Pioneer’s management would not change.
3
On August 31, 2009, Land Rover1 responded that it had not received any previous
notice, or request for approval, of the prior transfers of 37.5% of Mr. Brewer’s stock to
the Plan. Instead, Land Rover indicated that its records still showed Mr. Brewer as
owning 100% of Pioneer’s stock. Land Rover accordingly requested documentation of
Mr. Brewer’s previous transfers to the Plan, and “reminded” Pioneer that “changes in
ownership may not be made without our prior, written approval.” In addition, Land Rover
“reserve[d] all of [its] rights with respect to any prior, unauthorized changes in ownership
and any misrepresentations made in connection with the Dealer Agreement.” Finally,
Land Rover explained that because Pioneer had failed to send a complete buy/sell
agreement (a formal proposal), Land Rover’s right of first refusal with respect to the
Transaction had not been triggered. To illustrate, Land Rover included a checklist of
documents and information it requires before it will consider whether to approve a
proposed ownership transfer.
On September 15, 2009, Pioneer sent a second letter to Land Rover, explaining
that Pioneer’s August 17 letter was not intended as a formal proposal, but rather as “an
informal request for an opinion from [Land Rover] regarding any significant issues [it]
may have regarding the proposed change of ownership to being 100% ESOP owned.”
Pioneer did not dispute that it never applied for or received Land Rover’s authorization
for the prior transfers, it explained, however, that it thought permission was unnecessary
1
Carrie Catherine, one of Land Rover’s Franchise Development Managers, signed
this first letter. All of Land Rover’s following letters were signed by Lee Maas, Ms.
Catherine’s supervisor and Land Rover’s Vice President of Franchise Operations.
Mr. Jensen authored most of Pioneer’s correspondence.
4
because it was the ownership of the holding company (Pioneer) that had changed, not the
ownership of Pioneer’s dealerships.
On October 30, 2009, Land Rover responded that it had “a substantial objection
regarding the previous changes of ownership that have resulted in [Pioneer] being 37.5%
[Plan] owned.” Because Pioneer had not previously disclosed or sought approval for
these transfers, Land Rover maintained that each “was a material violation of the terms of
the Land Rover Dealer Agreements,” which require prior written approval before any
change in ownership.
Land Rover further complained that in addition to not informing it of these
transfers, Pioneer affirmatively misrepresented its ownership interest when Mr. Brewer
signed a new dealership agreement in February 2005. In that agreement, Mr. Brewer
listed himself as the only beneficial owner of Pioneer and as the 100% owner of
Pioneer’s stock. Land Rover considered this a “material misrepresentation” because
“Mr. Brewer had already transferred 14.5%” of Pioneer’s stock to the Plan at that time.
Consequently, Land Rover “demand[ed] that all prior, unauthorized transfers of
beneficial ownership be reversed and that ownership be restored to comply with the
representations made in the [dealership agreements].”
Significant for our purposes, Land Rover also advised Pioneer that it would not
approve a change in ownership to 100% Plan owned, because its “requirements for
ownership/operation of its dealerships would foreclose such an arrangement.” Land
Rover explained that the “identity, reputation, financial resources, personal and business
qualifications and experience, and the marketing philosophy of the designated owners
5
and management of [Pioneer] are of vital significance” to Land Rover. Land Rover
further stated that
if majority ownership of a Land Rover Dealer were held by an ESOP, then
the Dealer would ultimately be controlled by an ever-changing group of
employees who have not been vetted for ownership and management by
[Land Rover], and who may not have the requisite financial and personal
capabilities, qualifications, experience and commitment. Further, control
and management of the dealership would be subject to internal politics and
factions. This is an unacceptable ownership structure for a Land Rover
Dealer.
Moreover, in this particular case, we are being asked to approve a transfer
of full ownership following a series of undisclosed and unauthorized
transfers in which both current ownership and the [Plan] participated.
On December 3, 2009, Pioneer (assisted by Alerus) responded, interpreting Land
Rover’s October 30 letter as announcing a prohibition against ESOP-owned dealerships,
and asserting that this position violated California and Colorado law, as well as federal
public policy favoring ESOP ownership. Pioneer also challenged some of Land Rover’s
reasoning for finding Plan ownership unacceptable. First, Pioneer explained that the same
management team would stay in place after the transfer, because 100% of the stock in the
dealerships would continue to be owned by the holding company (Pioneer), which in turn
would be owned by the Plan. And the Plan would remain under the management of its
trustees, Mr. Brewer, Mr. Jensen, and Ms. Dukes. Second, Pioneer claimed that
“numerous studies” have shown ESOP-owned companies outperform competitors
because the employees have a beneficial interest in the company and are motivated to
help the company succeed. It is undisputed that Pioneer did not specifically identify or
cite to a single study to support this claim.
6
On December 14, 2009, Land Rover wrote to Pioneer and clarified that it did not
have a policy against all ESOP ownership. But Land Rover explained that its hesitation
with respect to this Transaction was because “Pioneer never applied for nor received
Land Rover’s authorization for any of these prior transfers, in direct contravention of the
Dealer Agreements,” and because Pioneer misrepresented its ownership in 2005. Land
Rover also took issue with Pioneer’s arguments in favor of ESOP ownership. To begin,
Land Rover indicated that even if management continued after the Transaction, it could
change at any time and there was no guarantee of “who will ultimately control the
dealership and be able to make changes in management and business direction.” And
Land Rover noted Pioneer’s assertion that ESOPs outperform competitors was “not
supported by the performance of your own dealerships.” Whereas Land Rover sales were
down 16% nationally that year, Pioneer’s three Land Rover dealerships’ sales were well
below average, being down 45%, 35%, and 34%. Land Rover also observed that all three
dealerships were below average on the Customer Satisfaction Index (CSI), and both
Denver dealerships were unprofitable.2
Finally, Land Rover indicated that it had not yet received a formal ownership
transfer proposal from Pioneer, but that Pioneer was
free to submit any ownership transfer proposal that you wish to submit, and
[Land Rover] will consider it in good faith and on the merits. . . . Any
2
Pioneer contends that at the time of the Transaction, its “working capital
exceeded Land Rover’s guidelines by over 200%” and that its total capital was
approximately $16.2 million. And although it argues it was only 1% below the average
CSI, it does not dispute the sales numbers Land Rover provided and the fact that its two
Denver dealerships were unprofitable.
7
proposal to transfer majority ownership to the [Plan], however, will have to
address and satisfy the concerns [Land Rover] identified about the identity,
business ability, and financial capability of the person(s) who will have
ultimate legal control of the dealership.
Pioneer never responded to the December 14 letter.
Almost a year later, in a letter dated November 8, 2010, Land Rover approved the
prior transfers of 37.5% of Pioneer’s stock to the Plan. But Land Rover warned that it
“would not support a future ownership change giving majority ownership or control” to
the Plan, because Land Rover’s “policy is that the person(s) who hold majority ownership
and control of [a dealership] must be person(s) who are capable and committed to
achieving and maintaining the level of retail representation” that Land Rover requires.
This was the last communication between Pioneer and Land Rover on this issue.
3. Negotiations Between Alerus and Pioneer
In November 2009, Alerus sent Mr. Brewer draft stock redemption and stock
purchase agreements that required Mr. Brewer to make certain representations and
warranties. Mr. Brewer’s attorney, Richard Eason, revised the drafts by adding thirty-two
“best of knowledge” qualifiers. In his transmittal letter, Mr. Eason told Alerus: “This is as
far with the reps and warranties as [Mr. Brewer] will go.” Mr. Eason hoped to obtain
Alerus’s signature on these revised Transaction documents, subject to later completing
acceptable schedules. Because the schedules were likely to take “substantial time” to
complete and Mr. Eason believed they were not of particular interest to the
manufacturers, he intended to submit the signed revised Transaction documents to Land
8
Rover without the schedules. He hoped to trigger Land Rover’s obligation to review and
approve or reject the Transaction, or to exercise its right of first refusal.
But Alerus decided that the revisions to the representations and warranties were
unacceptable and refused to sign the revised Transaction documents. As a result, Pioneer
could not submit a signed copy of the revised Transaction documents to Land Rover.
Mr. Eason notified Mr. Brewer of Alerus’s decision by email. In addition to
explaining that Alerus was unwilling to accept the qualified representations and
warranties, Mr. Eason opined that the “likelihood of a transfer of control to the ESOP
appears even more unlikely in view of the letter” received from Land Rover. Mr. Eason
explained that Land Rover
continues to assert their position that the previous transfers to the ESOP
were unauthorized and still subject to their approval or non-approval. The
tone of [Land Rover’s] letter suggests that they would probably not approve
a change in control to the ESOP and we would be faced with some form of
litigation with them. . . . I believe that [Land Rover] will ultimately approve
the minority ownership by the ESOP but that change of control to the
ESOP will be problematical.
Alerus ultimately determined that because Mr. Brewer was unwilling to make the
unqualified representations and “assume the attendant risk, . . . the Plan should not
purchase Brewer’s stock.” Formal Land Rover review was thus never triggered and the
Transaction was abandoned. Alerus sent Pioneer a final invoice for its services in
November 2010.
4. Pioneer Sells Its Assets to Kuni
More than a year after the Transaction was abandoned, Pioneer sold most of its
assets to Kuni Enterprises for more than $10 million above what the Plan would have
9
paid for Pioneer’s stock. Perhaps because it was an asset purchase rather than a stock
purchase, Kuni did not require the unconditional representations and warranties that
Alerus had demanded.3 During the course of negotiations between Pioneer and Kuni,
Mr. Jensen met with Kuni’s representative, Greg Goodwin. When Mr. Goodwin inquired
whether Pioneer employees would be disappointed that the Transaction had failed,
Mr. Jensen told him that Land Rover had “indicated that the employee ownership in the
company had maxed out . . . and [Pioneer] was not going to be allowed to add any [Plan]
ownership in the future.”
Mr. Goodwin was also present when Pioneer announced Kuni’s purchase of
Pioneer’s assets. Mr. Goodwin recalled that Mr. Brewer “expressed regret that he was
unable to complete his plan to sell Pioneer to the employees,” and identified “the
resistance or disapproval of one of the manufacturers” as a cause of that failure. After the
asset sale to Kuni, the Denver Business Journal reported that Mr. Jensen had identified
the reason for the failure of the stock sale to the Plan as “the [fact that] manufacturers
weren’t willing to deal with a company that was 100 percent employee-owned.”
3
See, e.g., New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 209 (2d Cir. 2006)
(“Under both New York law and traditional common law, a corporation that purchases
the assets of another corporation is generally not liable for the seller’s liabilities.”); ARE
Sikeston Ltd. P’ship v. Weslock Nat’l, Inc., 120 F.3d 820, 828 (8th Cir. 1997) (noting “the
traditional distinction between corporate mergers or the sale and purchase of outstanding
stock of a corporation, whereby preexisting corporate liabilities also pass to the surviving
corporation or to the purchaser, and the sale and purchase of corporate assets which
eliminates successor liability” (internal quotation marks omitted)); William Meade
Fletcher et al., Fletcher Cyclopedia of the Law of Corporations § 7122 (Sept. 2016
update) (“The general rule, which is well settled, is that where one company sells or
otherwise transfers all its assets to another company, the latter is not liable for the debts
and liabilities of the transferor.” (collecting cases)).
10
B. Procedural History
After Pioneer sold its assets to Kuni, the Plan filed suit against Alerus4 for breach
of fiduciary duty under 29 U.S.C. § 1109. Alerus moved for summary judgment,5 arguing
(1) it did not breach any fiduciary duties, and (2) even if there was a breach, Alerus did
not cause any losses to the Plan because the Plan did not establish that Land Rover would
have approved the Transaction.
1. The Plan’s Experts
The Plan hired two experts to opine on whether Land Rover would have approved
a formal proposal for 100% ESOP ownership of Pioneer’s stock. The first expert, Carl
Woodward, is a certified public accountant who believed Land Rover would have
approved the transaction because: (1) multi-owner dealerships have become common;
(2) the factors Land Rover considers in deciding whether to approve a change of
ownership weigh in the Plan’s favor; (3) applicable state law requires manufacturers to be
objectively reasonable in deciding whether to approve, and there is no objective reason
for Land Rover to withhold approval; (4) Land Rover would not have exercised its right
of first refusal because it would have had to own and operate other brands’ dealerships
(Porsche and Audi); (5) Land Rover’s statement that it “would not support” the Plan’s
4
The Plan also sued its former counsel, Berenbaum Weinshienk, P.C., but the
parties filed a stipulation to dismiss it from the action, which we approved on December
30, 2015.
5
Alerus also filed a cross-appeal seeking contribution or indemnification. Because
we are affirming the district court, we dismiss the cross-appeal as moot. See Alerus Fin.,
N.A. v. Brewer, No. 15-1245 (10th Cir. June 5, 2017).
11
ownership change was just “code” that it “might allow but would not yet positively
‘approve’”; and (6) Porsche and Audi had approved the Transaction.
The second proposed expert, Oren Tasini, is an attorney “with decades’ experience
in the purchase and sale of automobile dealerships,” who opined that “under California
and Colorado law, Land Rover would have been required to consent to the sale to the
[Plan].” He based this opinion on his view that California and Colorado laws favor
approval of dealership transfers and prohibit manufacturers from “unreasonably”
withholding consent. Mr. Tasini believed it would have been unreasonable for Land
Rover not to approve the Transaction, particularly because it had agreed to the prior
transfer of 37.5% of the stock.
Neither Mr. Woodward nor Mr. Tasini had any personal involvement with a
proposed ESOP stock purchase in the automotive industry generally, or with Land
Rover’s approval process specifically.
2. Land Rover’s 30(b)(6) Testimony
George Delaney, one of Land Rover’s Franchise Development Managers, testified
as Land Rover’s 30(b)(6) witness. Mr. Delaney confirmed that Land Rover follows the
law, acts reasonably, and has no policy against ESOPs. He estimated that Land Rover
rejects less than one-third of change of control applications. Mr. Delaney also testified
that Land Rover exercises its right of first refusal a “minority of the time.”
12
But Mr. Delaney could not “say . . . without speculation” whether Land Rover
would have approved the Transaction.6 When presented with the revised Transaction
documents, Mr. Delaney testified, “If I had received this document, it still would not be a
complete amount of information for me to make a recommendation.” He explained that
the documents were missing several items contained on the checklist Land Rover sent
Pioneer with its first letter. Mr. Delaney indicated that he “certainly” would have had an
interest in seeing at least some of the schedules. Thus, even if Alerus had sent the signed
Transaction documents without the schedules as hoped by Mr. Eason, Mr. Delaney stated
the documents as submitted would not have triggered Land Rover’s formal approval
obligation because the documents were “not complete.”
3. District Court Grants Summary Judgment
The district court bypassed the issue of whether Alerus had breached its fiduciary
duty because it concluded the Plan had not established loss, an element of its prima facie
case. The court explained that the Plan’s claimed damages were from the “proposed
transaction and resulting benefits,” but there was insufficient “evidence that the proposed
transaction would have been consummated” because it was only speculative that Land
Rover’s “approval would have occurred.” The court reasoned that at “all material times,
Land Rover indicated it would not approve and/or recommend the approval of the
complete change of ownership from [Mr.] Brewer to the ESOP.” Additionally, “[Mr.]
6
Mr. Delaney reported to Mr. Maas. His job was to recommend whether Land
Rover should approve or deny a potential sale, but he did not have authority himself to
approve or deny. Mr. Maas, however, did have authority to approve or deny potential
sales.
13
Delaney, the only Land Rover representative relied on by the parties, stated it would be
speculative as to whether Land Rover would have approved.” The court explained that
“[s]peculation . . . is not sufficient to establish causation,” and “in the absence of
causation, the [Plan] is unable to show it has been damaged by the [alleged] breach of
any duty.”
Although the court acknowledged a split of authority on whether the burden shifts
to the defendant to disprove causation once the plaintiff has established a prima facie case
of breach of fiduciary duty under ERISA, it did not resolve that issue. Instead, the district
court found the Plan had failed to meet its initial burden of “showing . . . a causal
connection between the breach of fiduciary duty and claimed loss as part of its prima
facie case of loss.” The court therefore determined that “even assuming Alerus, as the
fiduciary, must disprove causation, [the Plan] has not established a prima facie case of a
loss in the first instance.”
In considering the evidence of causation, the district court excluded the testimony
of Mr. Woodward and Mr. Tasini insofar as it related to whether Land Rover would have
approved the Transaction. The court explained that “both opinions would require the
experts to ‘read the mind’ of Land Rover, predict how Land Rover would have weighed
factors it deemed relevant, and find that Land Rover would not only reach the conclusion
that it must consent but also do so.” The court observed that not even Land Rover would
speculate as to whether it would have approved the Transaction, and further concluded
that such a prediction “is beyond the scope of any expert in this instance.” As an
alternative basis for its ruling, the court found that both experts offered impermissible
14
legal conclusions, when “neither expert may opine as to what the law requires.” The court
also found Mr. Woodward unqualified to testify as to what the law requires because he is
a CPA, not an attorney.
The district court granted summary judgment to Alerus, and the Plan now appeals.
We have jurisdiction under 28 U.S.C. § 1291.
III. DISCUSSION
The Plan claims Alerus breached its fiduciary duties under ERISA by failing to
execute the revised Transaction documents so that Alerus could send them to Land Rover
for approval, and is thus liable under 29 U.S.C. § 1109(a), which provides:
Any person who is a fiduciary with respect to a plan who breaches any of
the responsibilities, obligations, or duties imposed upon fiduciaries by this
subchapter shall be personally liable to make good to such plan any losses
to the plan resulting from each such breach . . . .
29 U.S.C. § 1109(a) (emphasis added).
The district court concluded the Plan could not demonstrate a resulting loss
because the evidence that Land Rover would have approved the Transaction was too
speculative. The Plan contends this was error because the district court improperly
required the Plan to prove causation, rather than shifting the burden to Alerus to disprove
causation. And even if the district court did not erroneously assign the burden of proof,
the Plan contends the evidence proved, or at least created a genuine dispute of material
fact, that Land Rover would have approved the Transaction because: (1) record evidence
of Land Rover and Pioneer’s relationship showed Land Rover would have approved;
(2) California and Colorado state law would have required Land Rover to approve; and
15
(3) the Plan’s experts would have testified that Land Rover would have approved, had the
district court not abused its discretion in excluding their testimony.
We review the district court’s grant of summary judgment de novo. Birch v.
Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). Although causation is
generally a question of fact for a jury, where “the facts are undisputed and reasonable
minds can draw only one conclusion from them,” causation is a question of law for the
court. Berg v. United States, 806 F.2d 978, 981 (10th Cir. 1986). After the moving party
has met its initial burden of showing an absence of a genuine issue of material fact, “the
burden then shifts to the nonmoving party, who must offer evidence of specific facts that
is sufficient to raise a ‘genuine issue of material fact.’” BancOklahoma Mortg. Corp. v.
Capital Title Co., 194 F.3d 1089, 1097 (10th Cir. 1999) (citation omitted). “To defeat a
motion for summary judgment, evidence, including testimony, must be based on more
than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d
869, 875 (10th Cir. 2004). The district court must draw all reasonable inferences in favor
of the nonmoving party. Hornady Mfg. Co. v. Doubletap, Inc., 746 F.3d 995, 1004 (10th
Cir. 2014). But an inference is unreasonable if it requires “a degree of speculation and
conjecture that renders [the factfinder’s] findings a guess or mere possibility.” United
States v. Bowen, 527 F.3d 1065, 1076 (10th Cir. 2008) (internal quotation marks
omitted). The nonmoving party “must set forth evidence sufficient for a reasonable jury
to return a verdict in [its] favor.” Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.
1999); Schutz v. Thorne, 415 F.3d 1128, 1132 (10th Cir. 2005).
16
In reviewing the Plan’s challenges to the district court’s decision, we first address
the proper allocation of the burden of proof with respect to the element of causation in an
ERISA breach of fiduciary duty claim. We conclude that the plaintiff bears the burden on
each element of its claim because Congress has given no indication that it intended to
depart from that general rule. We also reject the Plan’s argument that a burden-shifting
framework should be incorporated into ERISA from the common law of trusts.
Next, we consider whether the Plan met its burden at summary judgment to come
forward with evidence from which a reasonable jury could find in its favor on each
element of its breach of fiduciary duty claim. We agree with the district court that a
reasonable factfinder could not conclude that Alerus caused the Transaction to fail
because even if Land Rover had received the revised Transaction documents, the
evidence does not rise beyond speculation that Land Rover would have approved the
Transaction. In fact, all of the record evidence demonstrates that Land Rover would not
have approved. Finally, we conclude the district court did not abuse its discretion in
excluding the Plan’s expert testimony on causation.
A. The Burden of Proving Causation Falls on the Plaintiff in an ERISA Breach of
Fiduciary Duty Claim
29 U.S.C. § 1109(a) provides that a fiduciary who breaches its duties under
ERISA shall be personally liable for “any losses to the plan resulting from each such
breach.” The plain language of § 1109(a) establishes liability for losses “resulting from”
the breach, which we have recognized indicates that “there must be a showing of some
causal link between the alleged breach and the loss plaintiff seeks to recover.” Allison v.
17
Bank One-Denver, 289 F.3d 1223, 1239 (10th Cir. 2002) (internal quotation marks
omitted); see also Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 663 F.3d 210,
217 (4th Cir. 2011) (holding a breach of fiduciary duty “does not automatically equate to
causation of loss and therefore liability” and consequently a “fiduciary can only be held
liable upon a finding that the breach actually caused a loss to the plan”); Willett v. Blue
Cross & Blue Shield, 953 F.2d 1335, 1343 (11th Cir. 1992) (“Section 409 of ERISA
establishes that an action exists to recover losses that ‘resulted’ from the breach of a
fiduciary duty; thus, the statute does require that the breach of the fiduciary duty be the
proximate cause of the losses claimed . . . .”).
But the statute is silent as to who bears the burden of proving a resulting loss.
Where a statute is silent on burden allocation, the “ordinary default rule [is] that plaintiffs
bear the risk of failing to prove their claims.”7 Schaffer ex rel. Schaffer v. Weast, 546 U.S.
49, 56 (2005). This is because the “burdens of pleading and proof with regard to most
facts have been and should be assigned to the plaintiff who generally seeks to change the
present state of affairs and who therefore naturally should be expected to bear the risk of
failure of proof or persuasion.” 2 McCormick on Evid. § 337 (7th ed. 2013).
7
The Supreme Court has held that plaintiffs bear the burden of proof in a variety
of cases where the statute or Constitution is silent. See, e.g., St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 511 (1993) (Title VII); Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992) (Endangered Species Act); Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
806 (1999) (Americans with Disabilities Act); Wharf (Holdings) Ltd. v. United Int’l
Holdings, Inc., 532 U.S. 588, 593 (2001) (Rule 10b-5 securities fraud); Doran v. Salem
Inn, Inc., 422 U.S. 922, 931 (1975) (preliminary injunctions); Hunt v. Cromartie, 526
U.S. 541, 553 (1999) (Equal Protection Clause); Mt. Healthy City Sch. Dist. Bd. of Ed. v.
Doyle, 429 U.S. 274, 287 (1977) (First Amendment).
18
There are exceptions to the default rule, such as when “certain elements of a
plaintiff’s claim . . . can fairly be characterized as affirmative defenses or exemptions.”
Schaffer, 546 U.S. at 57; see also FTC v. Morton Salt Co., 334 U.S. 37, 44–45 (1948)
(“[T]he burden of proving justification or exemption under a special exception to the
prohibitions of a statute generally rests on one who claims its benefits . . . .”). The
Supreme Court cautioned, however, that “while the normal default rule does not solve all
cases, it certainly solves most of them. . . . Absent some reason to believe that Congress
intended otherwise, . . . the burden of persuasion lies where it usually falls, upon the party
seeking relief.” Schaffer, 546 U.S. at 57–58.
Another exception to the default rule unique to the fiduciary duty question arises
under the common law of trusts. Trust law advocates a burden-shifting paradigm
whereby once “a beneficiary has succeeded in proving that the trustee has committed a
breach of trust and that a related loss has occurred, the burden shifts to the trustee to
prove that the loss would have occurred in the absence of the breach.” Restatement
(Third) of Trusts § 100 cmt. f (2012); see also George G. Bogert & George T. Bogert,
The Law of Trusts and Trustees § 871 (2d rev. ed. 1995 & Supp. 2013) (“If [a
beneficiary] seeks damages, a part of his burden will be proof that the breach caused him
a loss. . . . If the beneficiary makes a prima facie case, the burden of contradicting
it . . . will shift to the trustee.” (emphasis added)).
Here, the district court found it unnecessary to decide whether to adopt the burden-
shifting approach because, even assuming Alerus carries the burden to disprove causation
once the Plan establishes a prima facie case, it concluded the Plan had not established a
19
prima facie case of a loss in the first instance. We adopt a different analytical approach
and reject outright the Plan’s argument that ERISA breach of fiduciary duty claims
should be resolved under a burden-shifting framework. But we affirm the district court
because we agree the Plan has failed to meet its burden.
To begin, there is nothing in the language of § 1109(a) or in its legislative history
that indicates a Congressional intent to shift the burden to the fiduciary to disprove
causation. Nor is there anything that suggests Congress intended to make the lack of
causation an affirmative defense or an exemption to liability. Whether something
constitutes an element, as opposed to an affirmative defense or exception, turns on
whether “one can omit the exception from the statute without doing violence to the
definition of the offense.”8 United States v. Prentiss, 256 F.3d 971, 979 (10th Cir. 2001)
(en banc) (internal quotation marks omitted), overruled in part on other grounds as
recognized by United States v. Langford, 641 F.3d 1195 (10th Cir. 2011). Section 1109(a)
of ERISA imposes liability on a breaching fiduciary for “any losses to the plan resulting
from each such breach.” 29 U.S.C. § 1109(a). The requirement that the losses to the plan
have resulted from the breach cannot be omitted from the statute without substantially
changing the definition of the claim, thereby doing violence to it. We thus hold that
causation is an element of the claim and that the plaintiff bears the burden of proving it.
8
For example, the Age Discrimination in Employment Act contains an exemption
for employer actions “based on reasonable factors other than age” and the Supreme Court
held that it was the employer-defendant’s burden to prove it meets this exemption.
Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 87 (2008).
20
The majority of federal circuits that have considered the issue agree. These courts
have refused to incorporate any burden shifting into ERISA breach of fiduciary duty
claims because the language “resulting from” in 29 U.S.C. § 1109(a) makes “[c]ausation
of damages . . . an element of the claim, and the plaintiff bears the burden of proving it.”
Silverman v. Mut. Benefit Life Ins. Co., 138 F.3d 98, 105 (2d Cir. 1998) (Jacobs, J. and
Meskill, J., concurring); see also Wright v. Ore. Metallurgical Corp., 360 F.3d 1090,
1099 (9th Cir. 2004); Kuper v. Iovenko, 66 F.3d 1447, 1459–60 (6th Cir. 1995) abrogated
on other grounds by Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014); Willett
v. Blue Cross & Blue Shield of Ala., 953 F.2d 1335, 1343–44 (11th Cir. 1992).
In contrast, some circuits have incorporated the common law of trust’s burden
shifting into ERISA breach of fiduciary duty claims. The Fourth, Fifth, and Eighth
Circuits have held that once an ERISA plaintiff has proven a breach and a prima facie
case of loss to the plan, “the burden of persuasion shifts to the fiduciary to prove that the
loss was not caused by the breach of duty.”9 See Tatum v. RJR Pension Inv. Comm., 761
9
Additionally, several circuits shift the burden but only with respect to the
calculation of damages and only after the plaintiff has made its prima facie case. See, e.g.,
Sec’y of U.S. Dep’t of Labor v. Gilley, 290 F.3d 827, 830 (6th Cir. 2002) (“To the extent
that there is any ambiguity in determining the amount of loss in an ERISA action, the
uncertainty should be resolved against the breaching fiduciary.” (emphasis added)); Brick
Masons Pension Tr. v. Indus. Fence & Supply, 839 F.2d 1333, 1338 (9th Cir. 1988)
(holding where plaintiffs have demonstrated the employer breached ERISA by failing to
keep adequate records, burden shifted to employer to demonstrate how much of work in
question was not covered by agreement); cf. Leigh v. Engle, 727 F.2d 113, 138 (7th Cir.
1984) (“[T]he burden is on the defendants who are found to have breached their fiduciary
duties to show which profits are attributable to their own investments apart from their
control of the [trust] assets.” (emphasis added)); Barry v. West, 503 F. Supp. 2d 313, 326
(D.D.C. 2007) (holding “only after plaintiff demonstrates that [defendant’s] breach of
duty caused a loss to the Plan can any ‘uncertainties in fixing damages’ be resolved in
21
F.3d 346, 362 (4th Cir. 2014) (internal quotation marks omitted), cert. denied, 135 S. Ct.
2887 (2015); McDonald v. Provident Indem. Life Ins. Co., 60 F.3d 234, 237 (5th Cir.
1995); Martin v. Feilin, 965 F.2d 660, 671 (8th Cir. 1992).
The Plan asks us to follow these decisions and shift the burden to the fiduciary
once the plaintiff establishes a prima facie showing of a loss related to the breach. We
decline that invitation. The “law of trusts often will inform, but will not necessarily
determine the outcome of, an effort to interpret ERISA’s fiduciary duties.” Varity Corp.
v. Howe, 516 U.S. 489, 497 (1996). Where the plain language of the statute limits the
fiduciary’s liability to losses resulting from a breach of fiduciary duty, there seems little
reason to read the statute as requiring the plaintiff to show only that the loss is related to
the breach. And, as the Second Circuit observed in Silverman, the burden-shifting
framework could result in removing an important check on the otherwise sweeping
liability of fiduciaries under ERISA. See Silverman, 138 F.3d at 106 (Jacobs, J. and
Meskill, J., concurring) (“The causation requirement of § 1109(a) acts as a check on this
broadly sweeping liability, to ensure that solvent companies remain willing to undertake
fiduciary responsibilities with respect to ERISA plans.”).
In sum, we see no reason to depart from the “ordinary default rule that plaintiffs
bear the risk of failing to prove their claims.” Schaffer, 546 U.S. at 56. Viewing the plain
language, causation cannot “fairly be characterized as [an] affirmative defense[] or
exemption[],” id. at 57, but is an express element of a claim for breach of fiduciary duty
plaintiff’s favor”). But because that issue is not before us here, we leave this question for
another day.
22
under 29 U.S.C. § 1109(a). We therefore hold that the burden falls squarely on the
plaintiff asserting a breach of fiduciary duty claim under § 1109(a) of ERISA to prove
losses to the plan “resulting from” the alleged breach of fiduciary duty.
We next turn to the question of whether the Plan met that burden. For the reasons
we now explain, we agree with the district court that it did not.
B. The District Court Correctly Concluded the Plan Failed to Come Forward with
Sufficient Evidence of Causation to Survive Summary Judgment
As explained above, by suing Alerus for breach of fiduciary duty, the Plan
assumed the burden of proof on each element of its claim. In order to prove the causation
element, the Plan must demonstrate that Alerus’s alleged breach (refusal to sign the
revised Transaction documents) caused the Plan to suffer damages (failure of the
Transaction). The Plan therefore bears the burden of establishing by a preponderance of
the evidence—more likely than not—that Land Rover would have approved the sale had
Alerus signed the revised Transaction documents, which would have allowed Pioneer to
submit them to Land Rover for review. For the Plan to defeat Alerus’s motion for
summary judgment, it “must set forth evidence sufficient for a reasonable jury to return a
verdict in [its] favor.” Rice, 166 F.3d at 1092. And this evidence “must be based on more
than mere speculation, conjecture, or surmise.” Bones, 366 F.3d at 875.
The district court concluded the evidence of causation could not rise above
speculation because Land Rover gave every indication it would not approve the sale, and
thus Alerus’s failure to sign the documents more likely than not did not result in the loss
of the Transaction.
23
On appeal, the Plan ignores Land Rover’s repeated and consistent statements that
it would not approve the Transaction and contends that “[h]ad the court appropriately
considered and applied state law and presumed Land Rover would obey that law, it could
only have drawn the conclusion that Land Rover approval . . . was probable or, at a
minimum, a genuine issue of fact in that regard had been established.”
In addressing this argument, we begin by reviewing the record evidence as a
whole and determining that it overwhelmingly points to only one conclusion: Land Rover
would not have approved the Transaction, even if Alerus had signed the revised
Transaction documents. We next reject the Plan’s argument that Land Rover would have
approved the sale if Alerus had signed the documents because Colorado and California
law would have required Land Rover to do so. To the contrary, the record evidence
indicates that even in the face of references to the state laws and Land Rover’s alleged
legal obligations, Land Rover steadfastly refused to approve 100% Plan ownership. And
the dissent’s suggestion that Pioneer would have successfully sued Land Rover if it had
not approved is irrelevant and forfeited. Last, we conclude the district court did not abuse
its discretion in excluding the Plan’s expert testimony regarding whether Land Rover
would have approved the Transaction. Accordingly, we hold the district court correctly
granted summary judgment in favor of Alerus because the Plan failed to come forward
with any evidence from which the jury could find causation without engaging in
speculation.
24
1. Record Evidence Regarding Approval
Throughout the communications with Pioneer, Land Rover repeatedly and
consistently indicated it would not approve any further attempts to transfer stock from
Mr. Brewer to the Plan:
Land Rover “would not support a future ownership change giving majority
ownership or control to an ESOP.”
Land Rover’s “requirements for ownership/operation of its dealerships would
foreclose such an arrangement.”
“This is an unacceptable ownership structure for a Land Rover Dealer.”
Pioneer was asking Land Rover “to approve a transfer of full ownership following
a series of undisclosed and unauthorized transfers in which both current ownership
and the ESOP participated.”
Land Rover believed Pioneer committed a “material misrepresentation” when
Mr. Brewer listed himself as Pioneer’s 100% owner in 2005 when he had already
transferred 14.5% of Pioneer’s stock to the Plan at that time.
Land Rover did not “condone the prior, unauthorized transfers of stock” and
would “not tolerate any recurrence of the practice of making transfers without
[Land Rover’s] prior written approval.”
Mr. Delaney testified that Land Rover’s relationship with Pioneer was not “very
favorable at the time, because they didn’t tell us for half a dozen years that they
had sold off a third of the company. That’s a substantive violation of the Land
Rover Dealer Agreement, that’s important to us.”
Mr. Delaney testified it was a “red flag” that “Mr. Brewer hadn’t been completely
honest with us for several years, [during] which he did not tell us that he had sold
a portion of the company, and he had signed renewals of the Land Rover
Agreement saying that he still owned 100 percent.”
On December 14, 2010, after Alerus and Pioneer warned Land Rover that its
refusal to approve an ESOP-owned dealership might be unlawful, Land Rover reiterated
25
its concerns about such an arrangement. And when, almost a year later, Land Rover
approved the prior transfers of 37.5% of Pioneer’s stock to the Plan, it unequivocally
stated that Land Rover “would not support a future ownership change giving majority
ownership or control” to the Plan. This was Land Rover’s final word on the issue, and it
came from Lee Maas, Land Rover’s Vice President of Franchise Operations, who had
authority to reject the Transaction. Pioneer presented no admissible evidence that Land
Rover would have changed course and approved the Transaction.10
There is also substantial evidence that Land Rover effectively communicated its
position to Pioneer representatives and that they understood Land Rover would not
approve the Transaction. First, Mr. Eason told Mr. Brewer in September 2010:
The likelihood of a transfer of control to the ESOP appears even more
unlikely in view of the letter [Pioneer] received from Lee Maas . . . which
continues to assert their position that the previous transfers to the ESOP
were unauthorized and still subject to their approval or non-approval. The
tone of his letter suggests that they would probably not approve a change in
control to the ESOP and we would be faced with some form of litigation
with them.
And although Mr. Eason believed that Land Rover would “ultimately approve the
[37.5%] ownership by the ESOP,” he told Mr. Brewer “that change of control to the
10
The dissent relies on Alerus’s failure to counter the Plan’s expert report on the
benefits of ESOP ownership “with any evidence suggesting that employee ownership
negatively affects performance.” Dissent 10-11. But the expert report was not provided
during the correspondence between Land Rover and Pioneer. The only evidence Land
Rover had at the relevant time was Pioneer’s unsubstantiated claim that “numerous
studies” have shown that ESOP companies outperform non-ESOP companies. And as
Alerus noted in its response, Land Rover’s experience with Pioneer did not support this
theory. In examining causation, only evidence available to Land Rover at the time the
transaction failed is relevant.
26
ESOP will be problematical.” Second, Mr. Jensen told Kuni that Land Rover declined the
Transaction. Third, Mr. Brewer attributed the failure of the Transaction to the “resistance
or disapproval on the part of . . . one manufacturer.” And because the evidence is
undisputed that the other two manufacturers approved the Transaction, the only
manufacturer who could have disapproved was Land Rover. Last, Mr. Jensen told the
Denver Business Journal that “the manufacturers weren’t willing to deal with a company
that was 100 percent employee-owned,” and therefore Pioneer “had no other options to
look at but to find a buyer.” Mr. Jensen’s statement that Pioneer “had no other option[] . .
. but to find a buyer” would only be true if Land Rover was not going to approve the
Transaction.
In light of this undisputed evidence, and lack of any evidence to the contrary, a
reasonable jury could not conclude Land Rover would have approved the Transaction.11
Consequently, the district court did not err in determining that the Plan failed to meet the
threshold necessary to survive summary judgment on the issue of causation. See
Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 780 (10th Cir. 2013)
(“Mere speculation . . . is not sufficient to establish causation.”).
11
The dissent claims a factfinder could conclude the Plan did not know about
Mr. Brewer’s deceptive transfers, and that “Land Rover should have relished the
opportunity to deal with two . . . innocent trustees and the plan rather than an individual
who had acted deceptively.” Dissent p. 29. But there is no record evidence to support
such a finding. To the contrary, in its October 30, 2009, letter to Pioneer, Land Rover
revealed its belief that the Plan was complicit in the deception: “Moreover, in this
particular case, we are being asked to approve a transfer of full ownership following a
series of undisclosed and unauthorized transfers in which both current ownership and the
[Plan] participated.”
27
2. State Law Arguments
Despite Land Rover’s clear indication it would not approve greater Plan
ownership, the Plan claims summary judgment was improper because it would have been
unreasonable—and thus illegal under California and Colorado law—for Land Rover not
to approve the Transaction. The Plan argues “Land Rover was aware of [the] state laws
and their application, and followed them as a matter of practice,” and because we
“presume[] that a person obeys the law,” NLRB v. Shawnee Indus., Inc., 333 F.2d 221,
225 (10th Cir. 1964), it therefore follows that a jury could reasonably conclude that Land
Rover would have followed the law and approved the Transaction. We disagree.
The record evidence on this topic supports but one conclusion: That Land Rover
would not approve 100% Plan ownership. In its communications with Land Rover, the
Plan raised the very state laws that it relies on here to argue that a failure to approve the
Transaction would be illegal. Despite that thinly-veiled threat, Land Rover’s final letter
stated that it would retroactively approve the prior transfer of 37.5% to the Plan, but that
it “would not support a future ownership change giving majority ownership or control” to
the Plan. Thus, despite the Plan’s position that approval was required by law, Land Rover
clearly indicated that it would not approve the Transaction.12 Any contrary finding
12
Mr. Delaney testified that he believed the word “support” indicated Mr. Maas
may have “need[ed] more than just his own opinion to approve anything more on the
ESOP” and that while the statement “certainly does not mean that the company will
[approve],” it “seem[ed] to leave open the possibility of [approval] in the future.” But
Mr. Delaney’s speculation about what Mr. Maas meant when he used the word “support”
is not evidence. And it is inconsistent with Mr. Maas’s communications over the past
thirteen months indicating Land Rover would not accept further transfers of ownership to
the Plan.
28
therefore would require the jury to engage in speculation that is unsupported by and, in
fact, contradictory to the evidence. In the face of such speculation, the Plan cannot rely
on Land Rover’s alleged obligations to Pioneer under state law to establish that Alerus
caused the Transaction to fail.
The dissent takes the Plan’s argument one step further by assuming that if Land
Rover had done exactly what it said it would do—reject any further transfers of stock
from Mr. Brewer to the Plan—Pioneer could have successfully sued Land Rover for
violations of Colorado and California law. But the Plan is not suing Land Rover; it is
suing Alerus. And the issue here is whether Alerus’s alleged breach of its duties to the
Plan by not signing the revised Transaction documents so that Pioneer could submit the
documents to Land Rover caused the Transaction to fail. Because the evidence supports
only the finding that the Transaction failed because Land Rover would not approve
further transfers of stock to the Plan, summary judgment for Alerus is proper for lack of
causation, irrespective of whether Pioneer has a valid claim against Land Rover under
state law.13
13
Although not relevant to Alerus’s liability, we note that Land Rover’s state law
obligations are far from certain. California law permits a manufacturer to reasonably
reject a transfer due to omissions and misrepresentations of the dealer. See Fladeboe v.
Am. Isuzu Motors Inc., 58 Cal. Rptr. 3d 225, 241 (Cal. Ct. App. 2007) (“A manufacturer
has the right to expect honesty and good faith from its dealers, and therefore may
consider those qualities when assessing a request for a dealership transfer.”); see also In
re R.B.B., Inc., 211 F.3d 475, 480 (9th Cir. 2000) (“An automobile manufacturer with a
special line of luxury motor cars and unhappy experience with an unreliable dealer . . .
[is] not unreasonable” in refusing to approve a sale); cf. Paccar Inc. v. Elliot Wilson
Capitol Trucks LLC, 923 F. Supp. 2d 745, 764 (D. Md. 2013) (interpreting a similar
Maryland statute and concluding “it would be manifestly unreasonable to require a
manufacturer to enter into a franchise agreement with a party with which it has ongoing
29
And even if we were to assume that a hypothetical lawsuit between Pioneer and
Land Rover is relevant to whether Alerus caused the Transaction to fail in the first
instance, the Plan never raised this argument below and consequently, neither party
argued or moved to admit evidence on whether a lawsuit between Pioneer and Land
Rover was probable or likely to succeed. In the district court, the Plan argued Land Rover
would have approved the Transaction in order to be in compliance with state law, but it
never based causation on a hypothetical lawsuit between Pioneer and Land Rover. Thus,
the Plan forfeited this argument by failing to raise it in the district court where it could be
tested factually. See Finstuen v. Crutcher, 496 F.3d 1139, 1145 n.3 (10th Cir. 2007)
(“The general rule is that an appellate court will not consider an issue raised for the first
time on appeal.” (alterations and internal quotation marks omitted)).
3. The Plan’s Experts
Finally, the Plan contends that the district court improperly excluded expert
testimony from which the jury could have found that Land Rover would have approved
the Transaction. We review the district court’s decision to exclude expert opinions for
abuse of discretion. United States v. Avitia-Guillen, 680 F.3d 1253, 1256 (10th Cir.
business disputes, including matters of business integrity”). Here, it is undisputed that
Mr. Brewer transferred 37.5% of his ownership to the Plan over the course of several
years without disclosing the transfers to Land Rover. And then in a 2005 dealership
agreement, he affirmatively misrepresented his ownership interest by indicating that he
still owned 100% of Pioneer’s stock, when he had already transferred 14.5% of that stock
to the Plan. Further, while we have found no decisions directly on point interpreting
Colorado’s statute, we are convinced it too would permit Land Rover to reject the
Transaction under these circumstances.
30
2012). We will “reverse only if the district court’s conclusion is arbitrary, capricious,
whimsical or manifestly unreasonable or when we are convinced that the district court
made a clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Id. (internal quotation marks omitted). But “whether the district court
applied the proper [legal] standard in admitting expert testimony” is reviewed de novo.
Id.
Expert testimony must be relevant and reliable. Fed. R. Evid. 702; Daubert v.
Merrell Dow Pharms., Ind., 509 U.S. 579, 588–89 (1993). To be reliable, expert
testimony must be “based on actual knowledge, and not mere ‘subjective belief or
unsupported speculation.’” Mitchell v. Gencorp., Inc., 165 F.3d 778, 780 (10th Cir. 1999)
(quoting Daubert, 509 U.S. at 590). Further, a district court “is accorded great latitude in
determining how to make Daubert reliability findings.” United States v. Velarde, 214
F.3d 1204, 1209 (10th Cir. 2000). When expert opinion “is not supported by sufficient
facts to validate it in the eyes of the law, or when indisputable record facts contradict or
otherwise render the opinion unreasonable, it cannot support a jury’s verdict” and will be
excluded. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242
(1993).
The district court excluded the testimony offered by the Plan’s experts regarding
causation for several independent reasons. First, the court found the experts’ “proffered
opinions amount to nothing more than speculation.” See Goebel v. Denver & Rio Grande
W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (“It is axiomatic that an expert, no
matter how good his credentials, is not permitted to speculate.”). If Land Rover itself was
31
unable to say, without speculation, whether the Transaction would have been approved,
then the experts would similarly not be able to form an opinion without speculating. As
the district court reasoned,
both opinions would require the experts to “read the mind” of Land Rover,
predict how Land Rover would have weighed factors it deemed relevant,
and find that Land Rover would not only reach the conclusion that it must
consent but also do so. Such prediction, however, is beyond the scope of
any expert in this instance.14
See Luciano v. E. Cent. Bd. of Coop. Educ. Servs., 885 F. Supp. 2d 1063, 1072 (D. Colo.
2012) (excluding portion of expert’s opinion where he attempted to opine on what was
motivating the behavior of a student’s parents, noting the expert could not “speculate on
the parents’ state of mind”).
Second, the court excluded the testimony because it found the experts made
impermissible legal conclusions.15 Mr. Tasini opined “that under California and Colorado
law, Land Rover would have been required to consent to the sale to the [Plan].” But an
“expert may not state his or her opinion as to legal standards nor may he or she state legal
14
The district court also excluded Wayne Isaacks’ and the non-retained experts’
opinions so far as they pertained to “the Land Rover issue,” noting in a footnote that it
incorporated the same reasoning as in the exclusion of Mr. Tasini and Mr. Woodward.
The Plan argues on appeal that “[n]owhere did the court explain its exclusion of Isaacks
and the non-retained experts, . . . and this Court should treat the exclusion [as] an abuse
of discretion.” But the court did address it, by incorporating by reference the same
reasoning advanced to exclude the other experts, which it was within its discretion to do.
15
The Plan contends the district court abused its discretion because “even if
elements of their testimony might be excluded as involving a legal instruction, wholesale
exclusion was incorrect.” But the Plan ignores the fact that the district court relied on
several independent reasons for excluding the opinions, not just on its finding that the
experts made improper legal conclusions.
32
conclusions drawn by applying the law to the facts.” Okland Oil Co. v. Conoco Inc., 144
F.3d 1308, 1328 (10th Cir. 1998). This type of opinion does “not aid the jury in making a
decision, but rather attempts to substitute [the expert’s] judgment for the jury’s.”
Baumann v. Am. Family Mut. Ins. Co., 836 F. Supp. 2d 1196, 1202 (D. Colo. 2011); see
also United States v. Hill, 749 F.3d 1250, 1260 (10th Cir. 2014) (“[A]n expert may not go
so far as to usurp the exclusive function of the jury to weigh the evidence and determine
credibility.” (internal quotation marks omitted)); Specht v. Jensen, 853 F.2d 805, 808
(10th Cir. 1988) (“[T]estimony on the ultimate factual questions aids the jury in reaching
a verdict; testimony which articulates and applies the relevant law, however, circumvents
the jury's decision-making function by telling it how to decide the case.”); United States
v. Jensen, 608 F.2d 1349, 1356 (10th Cir. 1979) (“[A]n expert witness cannot state legal
conclusions by . . . passing upon weight or credibility of the evidence . . . .”)
Finally, the district court found Mr. Woodward “is a C.P.A. and is not qualified to
testify on this subject.” The Plan argues the district court abused its discretion by finding
Mr. Woodward unqualified because it only considered Mr. Woodward’s licensure, and
“disregarded [Mr.] Woodward’s unparalleled experience and involvement in single and
multiple franchise automobile dealership buy-sells requiring manufacturer approval.” But
the district court did not abuse its discretion by identifying the fact that Mr. Woodward is
not an attorney as an additional reason for not permitting him to testify as to whether
refusal would have been contrary to law, where the decision is otherwise adequately
supported.
33
Under these circumstances, we cannot conclude that the district court exceeded its
considerable discretion in excluding the expert testimony. And in the absence of any
evidence to contradict Land Rover’s unambiguous contemporaneous statements that it
would not approve 100% ESOP ownership of the dealership, no reasonable jury could
find causation.
IV. CONCLUSION
We decline to adopt a burden-shifting approach under 29 U.S.C. § 1109 and hold
it is the plaintiff’s burden to establish causation on a breach of fiduciary duty claim. We
also affirm the district court’s conclusion that the Plan’s evidence of causation would
have required the jury to engage in speculation. And we conclude the district court did
not abuse its discretion in excluding the Plan’s expert testimony. We therefore affirm the
district court’s grant of summary judgment to Alerus.
34
Pioneer Centres Holding, et al., v. v. Alerus Financial, N.A., No. 15-1227
BACHARACH, J., dissenting.
This case involves a proposal to transfer control of three dealerships
that sold Land Rover vehicles. The dealerships were owned by a company
called “Pioneer Centres Holding Company.” Pioneer was owned by Mr.
Matthew Brewer.
Mr. Brewer wanted to sell his entire interest in Pioneer to its
employee stock ownership plan.
The sale was to be negotiated with an independent fiduciary for the plan
(Alerus), but the transfer of the dealerships was conditioned on approval of
the company that manufactured the vehicles (Land Rover).
Alerus and Mr. Brewer reached an impasse, so the proposed transfer
was never submitted to Land Rover for approval. The plan’s trustees and
the plan itself later sued Alerus for damages, alleging that Alerus had
breached fiduciary duties by impeding the sale.
The district court granted summary judgment to Alerus, holding that
the trustees and the plan had not established causation between the alleged
breach and the inability to complete the sale. The court reasoned that even
if Alerus and Mr. Brewer had reached an agreement, the sale could have
proceeded only if Land Rover would have approved the transfer. In the
court’s view, “there [was] insufficient admissible evidence that such
approval would have occurred.” Pioneer Centres Holding Co. Emp. Stock
Ownership Plan & Trust v. Alerus Fin., N.A., No. 12-cv-02547-RM-MEH,
2015 WL 2065923, at *8 (D. Colo. May 1, 2015) (unpublished). The
majority agrees with the district court, but I do not. As a result, I
respectfully dissent.
For the sake of argument, I assume that Land Rover did not want to
approve the transfer. But this assumption is not dispositive. In light of the
testimony and our presumption that individuals follow the law, a
reasonable fact-finder could conclude that disapproval would have been
2
objectively unreasonable. With such a conclusion, the fact-finder could
also reasonably infer that
Land Rover would have acquiesced in the transfer or
a court would ultimately have required approval of the transfer.
Because the sole basis for the district court’s decision is flawed, I would
reverse and remand for further proceedings. 1
I. Standard of Review
The district court concluded that Alerus was entitled to summary
judgment. This conclusion is subject to de novo review. Koch v. City of
Del City, 660 F.3d 1228, 1237 (10th Cir. 2011). In applying de novo
review, we consider the evidence and reasonable inferences in the light
most favorable to the trustees and the plan. Estate of Booker v. Gomez, 745
F.3d 405, 411 (10th Cir. 2014). Summary judgment would have been
appropriate only if Alerus had shown that (1) there were no genuine issues
1
The trustees and the plan also argue that
the loss of an opportunity to pursue Land Rover’s approval
would trigger liability even if Land Rover would not have
approved the transfer,
the district court should have shifted the burden of proof on
causation, and
the district court erred in excluding certain expert testimony.
For the sake of argument, I assume the invalidity of these arguments. Even
with that assumption, I would reverse the award of summary judgment.
3
of material fact and (2) Alerus was entitled to judgment as a matter of law.
Koch, 660 F.3d at 1238.
II. The Objective-Reasonableness Requirement
Pioneer owned one Land Rover dealership in California and two Land
Rover dealerships in Colorado. The parties agree that the laws of both
California and Colorado would preclude Land Rover from unreasonably
withholding approval regarding the transfer. See Cal. Veh. Code
§ 11713.3(d)(1) (West 2010) (stating that a manufacturer’s “consent [to a
transfer] shall not be unreasonably withheld”); id. § 11713.3(e) (same);
Colo. Rev. Stat. § 12-6-120(1)(i)(III) (2010) (“It shall be unlawful . . . for
any manufacturer . . . [t]o refuse to approve, unreasonably, the sale or
transfer of the ownership of a dealership . . . .”). 2
1. California’s Objective-Reasonableness Requirement
California’s reasonableness requirement was fleshed out in In re Van
Ness Auto Plaza, Inc., 120 B.R. 545 (Bankr. N.D. Cal. 1990). This opinion
has been followed by many courts, including the Ninth Circuit Court of
Appeals. See, e.g., In re R.B.B., Inc., 211 F.3d 475, 477-80 (9th Cir. 2000);
In re Claremont Acquisition Corp., 186 B.R. 977, 984-89 (C.D. Cal. 1995),
2
Negotiations between Mr. Brewer and Alerus broke down in 2010. If
the negotiations had not broken down, Land Rover would have made its
decision based on state laws existing in 2010. Thus, I apply the state laws
as they existed in 2010.
4
aff’d, 113 F.3d 1029 (9th Cir. 1997); Fladeboe v. Am. Isuzu Motors Inc.,
58 Cal. Rptr. 3d 225, 240-42 (Cal. Ct. App. 2007).
In Van Ness, the court discussed the objective test governing the
reasonableness of a manufacturer’s withholding of approval:
[W]ithholding consent to assignment of an automobile
franchise is reasonable under California Vehicle Code section
11713.3(e) if it is supported by substantial evidence showing
that the proposed assignee is materially deficient with respect
to one or more appropriate, performance-related criteria. This
test is more exacting than whether the manufacturer
subjectively made the decision in good faith after considering
appropriate criteria. It is an objective test that requires that the
decision be supported by evidence. The test is less exacting
than one which requires that the manufacturer demonstrate by a
preponderance of the evidence that the proposed assignee is
deficient.
120 B.R. at 549; see also id. at 547 (“[W]ithholding consent to assignment
is reasonable only if it is based on factors closely related to the proposed
assignee’s likelihood of successful performance under the franchise
agreement.”).
The Van Ness court identified eight factors that manufacturers may
consider in assessing objective reasonableness:
(1) whether the proposed dealer has adequate working capital;
(2) the extent of prior experience of the proposed dealer; (3)
whether the proposed dealer has been profitable in the past; (4)
the location of the proposed dealer; (5) the prior sales
performance of the proposed dealer; (6) the business acumen of
the proposed dealer; (7) the suitability of combining the
franchise in question with other franchises at the same
location; and (8) whether the proposed dealer provides the
manufacturer sufficient information regarding [the proposed
dealer’s] qualifications.
5
Id. at 547. The parties agree that these factors would bear on the
reasonableness of Land Rover’s decision to withhold approval.
In Van Ness, the court discussed not only these factors but also the
proposed dealer’s customer-satisfaction rankings. See id. at 550 (“It is not
beyond the realm of reasonable decisions for a manufacturer of luxury cars
to refuse to accept a dealer with [customer-satisfaction] rankings that are
average at best and possibly well-below average.”). It is unclear whether
the court considered a proposed dealer’s customer-satisfaction rankings as
an independent factor or part of another factor. See id. But either way, Van
Ness indicates that manufacturers may consider a proposed dealer’s
customer-satisfaction rankings. See id. Thus, for the sake of argument, I
assume that manufacturers may consider a proposed dealer’s customer-
satisfaction rankings as an independent ninth factor.
One state court in California has held that there is another factor that
manufacturers may consider: the proposed “dealer’s honesty and good faith
in its relations with the manufacturer.” Fladeboe v. Am. Isuzu Motors Inc.,
58 Cal. Rptr. 3d 225, 241 (Cal. Ct. App. 2007). For the sake of argument, I
also assume a need to consider this factor.
2. Colorado’s Objective-Reasonableness Requirement
Courts have not fleshed out Colorado’s reasonableness requirement
as fully as California’s reasonableness requirement. But one federal
6
district court has indicated that Colorado’s reasonableness requirement
involves “an objective standard.” Arapahoe Motors, Inc. v. Gen. Motors
Corp., No. 99 N 1985, 2001 WL 36400171, at *9 n.9 (D. Colo. Mar. 28,
2001) (unpublished). I agree for two reasons.
First, an objective-reasonableness requirement would better advance
an underlying purpose of Colo. Rev. Stat. § 12-6-120(1): to protect dealers
from manufacturers’ weighty bargaining power. See S.J. Glauser DCJB,
L.L.C. v. Porsche Cars N. Am., Inc., No. 05-cv-01493-PSF-CBS, 2006 WL
1816458, at *5 (D. Colo. June 30, 2006) (unpublished); Empire Datsun,
Inc., v. Nissan Motor Corp. in U.S.A., No. 82-M-1027, 1984 U.S. DIST.
LEXIS 18092, at *8 (D. Colo. Mar. 29, 1984) (unpublished).
Second, courts have generally treated other jurisdictions’
reasonableness requirements as objective rather than subjective. See, e.g.,
Paccar Inc. v. Elliot Wilson Capitol Trucks LLC, 923 F. Supp. 2d 745, 761
(D. Md. 2013) (“[T]he Court finds that [the statute at issue] requires that
the rejection of a prospective transfer be grounded on a reasonable,
business-related concern regarding the [proposed dealer’s] ability to
effectively operate the [dealership]. An unfounded . . . refusal is violative
of the statute.”); Van Ness, 120 B.R. at 549 (“This test [of reasonableness]
is . . . . an objective test that requires that the [manufacturer’s] decision be
supported by evidence.”); VW Credit, Inc. v. Coast Auto. Grp., 787 A.2d
951, 958 (N.J. Super. Ct. App. Div. 2002) (“The standard of review to
7
determine the reasonableness of withholding consent to transfer of a
[dealership] is an objective test that requires that the decision be supported
by substantial evidence showing that the proposed [dealer] is materially
deficient.” (citing Van Ness, 120 B.R. at 549)).
For these two reasons, I would conclude that Colorado’s
reasonableness requirement is objective. Thus, I would conclude that under
Colorado law, withholding approval of a transfer “is reasonable only if it is
based on factors closely related to the proposed [dealer’s] likelihood of
successful performance under the franchise agreement.” Van Ness, 120
B.R. at 547.
3. Three More Objective Factors that Land Rover Considers in
Determining Whether to Approve a Transfer
Land Rover considers a variety of objective factors when determining
whether to approve a transfer. With three exceptions, these objective
factors are included in the ten objective factors discussed above. See Part
II(1), above. The three exceptions are
1. the purchaser’s overall financial strength,
2. the transfer’s likely effect on financial performance, and
3. the management’s commitment to the dealership.
For the sake of argument, I assume that these three objective factors may
be considered under the objective-reasonableness requirements of
8
California and Colorado. With these three factors, there are thirteen
independent objective factors.
But consideration of objective reasonableness would not encompass
Land Rover’s actual resistance to the transfer, even if that resistance was
in good faith, because subjective factors generally do not belong in an
objective test. See, e.g., United States v. Torres-Castro, 470 F.3d 992,
1000 (10th Cir. 2006) (“Even if the officers were actually motivated to
question [the defendant] about the gun because they discovered shells
during the protective sweep, their subjective motivations are irrelevant
because the Fourth Amendment turns on the objective reasonableness of
the circumstances.”); EEOC v. PVNF, L.L.C., 487 F.3d 790, 805 (10th Cir.
2007) (“In evaluating whether the employee’s working conditions would
cause [a reasonable person in the employee’s position to feel compelled to
resign], ‘we apply an objective test under which neither the employee’s
subjective views of the situation, nor her employer’s subjective intent . . .
are relevant.’” (quoting Tran v. Trs. of State Colls. in Colo., 355 F.3d
1263, 1270 (10th Cir. 2004) (alteration in original))); People v. Cowart,
244 P.3d 1199, 1203 (Colo. 2010) (en banc) (holding that “[t]he court may
not . . . consider subjective factors in making a custody determination”
since “‘the custody test is objective in nature’” (quoting People v.
Hankins, 201 P.3d 1215, 1219 (Colo. 2009) (en banc))).
9
4. Alerus’s Argument Regarding the Suitability of an
Employee Stock Ownership Plan as a Dealer
Alerus apparently argues that Land Rover could consider an
additional factor: whether the proposed dealer is owned by its employees
through an employee stock ownership plan. Alerus’s argument entails four
steps:
1. Under a company’s employee stock ownership plan, ownership
lies with the employees.
2. Some employees might be unsuitable owners.
3. Making these employees owners could negatively affect the
company’s performance.
4. Therefore, a manufacturer may reasonably disfavor proposed
dealers that are controlled by employee stock ownership plans.
This argument would not support an award of summary judgment to Alerus.
Under the objective-reasonableness tests in California and Colorado,
withholding approval of a transfer is “reasonable only if it is based on
factors closely related to the proposed [dealer’s] likelihood of successful
performance under the franchise agreement.” Van Ness, 120 B.R. at 547;
see Part II(1)-(2), above. The resulting question here is whether employee
ownership negatively affects the dealer’s likelihood of successful
performance.
To answer this question, we examine the summary-judgment
evidence. This evidence included the report of Dr. Susan Mangiero, who
attested to the advantages of ownership by employee stock ownership
10
plans. Alerus did not counter with any evidence suggesting that employee
ownership negatively affects performance. In light of Dr. Mangiero’s
report and the absence of any conflicting evidence, the district court could
not award summary judgment to Alerus based on Land Rover’s reluctance
to approve the transfer to an employee stock ownership plan. 3
5. The Factual Nature of Reasonableness
As Alerus concedes, reasonableness entails a question of fact. This
concession accords with California law, which expressly provides that
reasonableness is a question of fact. See Cal. Veh. Code § 11713.3(d)(3)
(West 2010) (“[W]hether the withholding of consent was unreasonable is a
question of fact requiring consideration of all the existing
circumstances.”).
Alerus nevertheless argues that this issue is routinely resolved on
summary judgment. In support of this argument, Alerus cites two non-
precedential opinions. These opinions do not support summary judgment
here.
The first is DeSantis v. General Motors Corp., an unpublished, one-
page memorandum opinion from the Ninth Circuit Court of Appeals. 279 F.
3
Land Rover did not have Dr. Mangiero’s report. But the report
provides evidence of the objective advantages of ownership in an employee
stock ownership plan. Land Rover may have viewed such ownership with
skepticism. But the fact-finder could have regarded such skepticism as
objectively unreasonable in light of Dr. Mangiero’s report.
11
App’x 435 (9th Cir. 2008). There the plaintiffs applied to a manufacturer
to obtain ownership of a car dealership. The manufacturer rejected the
application. On summary judgment, the district court ruled in favor of the
manufacturer. The Ninth Circuit affirmed, holding that the manufacturer’s
rejection was objectively reasonable because
there was substantial evidence of poor customer satisfaction
scores during the time period when [one plaintiff] took over as
general manager of [the dealership]. There was also substantial
evidence of inadequate capitalization because, it is undisputed
that when the application was turned down, [this plaintiff] did
not meet the requirement that he personally invest
unencumbered funds equal to 15 percent of the total dealership
capital.
Id. at 436.
The second is Pacesetter Motors, Inc. v. Nissan Motor Corp. in
U.S.A., a district court opinion by the Western District of New York. 913
F. Supp. 174 (W.D.N.Y. 1996). There a manufacturer (Nissan) withheld
approval regarding the transfer of a Nissan dealership. Nissan’s stated
reason for withholding approval was the proximity of the proposed dealer
to an existing Nissan dealership. Id. at 177, 179. The transferors sued,
asserting that the stated reason had constituted a mere pretext. According
to the transferors, Nissan actually withheld approval because of anger with
the transferors. Id. at 176-80. On summary judgment, the district court held
that withholding approval was reasonable because the transferors had
conceded that being too close to another Nissan dealership impeded sales.
12
Id. at 179. The court added that the transferors’ pretext argument was not
persuasive for three reasons:
1. Even after “ample discovery,” there was no evidence
supporting this argument.
2. If Nissan had a strained relationship with the transferors, “it
would make more sense that Nissan would be eager to sever the
relationship with them and to deal with” the proposed dealer.
3. “[I]t would make no economic sense for Nissan to refuse to
approve a [transfer] that would be in its best financial interest,
due to some personal ‘frustration’ with” the transferors.
Id. at 179-80.
These two non-precedential opinions do not support summary
judgment here. They suggest only that reasonableness may be decided on
summary judgment in two extreme circumstances:
1. A dispositive factual issue is undisputed.
2. The non-moving party takes a factual position that is illogical
or not reasonably supported by any evidence.
These sorts of extreme circumstances are not present here. Thus, the two
non-precedential opinions do not support summary judgment on the issue
of objective reasonableness.
III. A genuine issue of material fact exists on whether Land Rover
would have exercised a right of first refusal.
Alerus implies that Land Rover could have exercised a right of first
refusal, purchasing Pioneer’s dealerships even if withholding approval for
the transfer would have been objectively unreasonable. The trustees and
13
the plan seem to question whether Land Rover would have been able to
exercise this right.
For the sake of argument, I assume that Land Rover could have
exercised the right of first refusal even if withholding approval for the
transfer would have been objectively unreasonable. Even with this
assumption, a reasonable fact-finder would have had three reasons to doubt
whether Land Rover would have exercised the right of first refusal.
First, the summary-judgment evidence indicates that Land Rover, like
other manufacturers, exercised this right only rarely.
Second, Land Rover could exercise the right of first refusal only by
buying all of Pioneer’s dealerships, not simply the Land Rover dealerships.
A fact-finder could doubt whether Land Rover would have been willing to
buy dealerships that sold competing brands of vehicles.
Third, Land Rover would ultimately have had to divest itself of the
dealerships. See Cal. Veh. Code § 11713.3(o)(2)(A) (West 2010); Colo.
Rev. Stat. § 12-6-120.5(2)(a)(I) (2010).
For these three reasons, a fact-finder could reasonably conclude that
Land Rover probably would not have exercised the right of first refusal.
14
IV. A Land Rover executive testified that Land Rover follows the
objective-reasonableness requirements, and our court must
presume that Land Rover would have followed these
requirements.
If Land Rover had declined to exercise the right of first refusal, Land
Rover would have had to decide whether to approve the transfer. A
reasonable fact-finder could conclude that Land Rover would ultimately
have based this decision on what was objectively reasonable.
A Land Rover executive testified that Land Rover follows the
statutory requirements of objective reasonableness. Even without this
testimony, our court would need to presume Land Rover’s compliance with
the legal requirements of California and Colorado. See, e.g., Royal Coll.
Shop, Inc. v. N. Ins. Co. of N.Y., 895 F.2d 670, 682-83 (10th Cir. 1990)
(discussing the presumption that a person obeys the law); NLRB v. Shawnee
Indus., Inc., 333 F.2d 221, 225 (10th Cir. 1964) (“It is presumed that a
person obeys the law and discharges the obligations imposed on him by
law.”).
In light of these legal requirements, Land Rover’s actual concerns
about the transfer are not dispositive; what ultimately matters is whether it
would have been objectively reasonable for Land Rover to withhold
approval. If withholding approval would have been objectively
unreasonable, a fact-finder could justifiably predict that Land Rover would
have approved the transfer.
15
The reasonableness of a refusal is a factual issue. See Part II(5),
above. In extreme circumstances where dispositive facts are undisputed or
indisputable, this issue may be decided on summary judgment. See id. But
these kinds of extreme circumstances are not present here.
Viewing the evidence and reasonable inferences favorably to the
trustees and the plan, as required, 4 a fact-finder could justifiably conclude
that (1) withholding approval would have been objectively unreasonable
and (2) Land Rover would have acquiesced in the transfer because doing
otherwise would have been objectively unreasonable. The justifiable nature
of these conclusions required denial of Alerus’s summary-judgment
motion.
V. If withholding approval would have been objectively
unreasonable, the fact-finder could justifiably infer that Land
Rover would have been forced to approve the transfer through an
injunction.
The trustees and the plan contend that if Land Rover had withheld
approval, Pioneer, the trustees, and the plan would have sued for an
injunction to force Land Rover to approve the transfer. Alerus does not
dispute this point or argue that injunctive relief would have been
unavailable.
Nonetheless, the majority concludes that the trustees and the plan
failed to present this contention in district court. For the sake of argument,
4
See Part I, above.
16
let’s assume that the majority is correct; if it is, the omission in district
court would not matter because Alerus has never questioned preservation
of this contention.
Alerus elsewhere pointed out where it thought the trustees and the
plan were making a new argument on appeal. Appellee’s Resp. Br. at 29,
38, 55; Oral Arg. at 24:24-24:46. And, Alerus specifically argued that the
trustees and the plan had forfeited one of their appeal points (shifting the
burden of proof) by failing to present that point in district court.
Appellee’s Resp. Br. at 29. But Alerus does not suggest that the trustees or
the plan failed to argue in district court that they would have sued Land
Rover to force its approval of the transfer.
Instead, Alerus responds on the merits, acknowledging that the
trustees and the plan could prevail if a suit would probably have compelled
Land Rover to approve the transfer. See id. at 53. Thus, Alerus has
forfeited any contention that it might have had on preservation of the issue.
See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1138-39 (10th Cir. 2010)
(concluding that the plaintiffs forfeited any argument that they might have
had on nonpreservation of an issue). 5 In these circumstances, I would
address the issue on the merits, just as Alerus has done.
5
The majority adds that in district court “neither party . . . moved to
admit evidence on whether a lawsuit between Pioneer and Land Rover was
probable or likely to succeed.” Maj. Op. at 30. But the summary-judgment
17
On the merits, I regard the evidence as sufficient to create a genuine
issue of material fact. Land Rover might not have wanted to approve the
transfer. But if Land Rover had refused, the trustees and the plan could
have sued. They would likely have prevailed if the fact-finder regarded
Land Rover’s refusal as objectively unreasonable.
The majority appears to misunderstand my view on the relevance of a
potential suit against Land Rover. For example, the majority suggests that I
believe that Pioneer has a valid claim against Land Rover under state law.
Maj. Op. at 29. I don’t think so, for Pioneer certainly doesn’t have a valid
claim against Land Rover; Alerus never agreed to the purchase on behalf of
the plan, so Land Rover never had to decide whether to approve the
transfer. Thus, Land Rover is not to blame for the deal collapsing.
The reasonableness of Land Rover’s possible refusal is pertinent only
because of what Alerus has argued. Alerus argues that if it had breached a
fiduciary duty, this breach would not have caused any damage because
Land Rover would have refused to approve the transfer. In assessing
record indicates that Pioneer, the trustees, and the plan would have sued if
Land Rover had withheld approval of the transfer. See Appellants’ App’x,
vol. XI at 2227 (“Obviously, if [Land Rover’s] approval of the proposed
transaction is not received, Pioneer and Mr. Brewer will have no choice but
to seek appropriate administrative or judicial relief . . . .”). In addition, the
summary-judgment record contains extensive evidence bearing on whether
the lawsuit would have succeeded. See Part VI, below (examining this
evidence and viewing it in the light most favorable to the trustees and the
plan).
18
Alerus’s argument, this court must consider whether the trustees and the
plan could have obtained a court decree forcing Land Rover to approve the
transfer.
In addition, the majority contends that the outcome of a suit against
Land Rover would not affect whether Alerus had prevented the sale from
taking place. But according to the trustees and the plan, the transaction fell
apart because of Alerus’s breach of fiduciary duty. Absent that breach,
according to the trustees and the plan, Land Rover would ultimately have
approved the transfer (either voluntarily or through an injunction).
Viewing the evidence in the light most favorable to the trustees and
the plan, a fact-finder could justifiably conclude that Land Rover would
probably have approved the transfer. If Land Rover would have done so,
Alerus’s alleged breach would indeed have been the cause of the plaintiffs’
damages.
VI. Viewing the evidence favorably to the trustees and the plan, the
fact-finder could justifiably infer that disapproval of the transfer
would have been objectively unreasonable.
As discussed above, thirteen factors bear on the objective
reasonableness of Land Rover’s decision whether to approve the transfer.
See Part II(1)-(3), above. Applying the thirteen factors, the fact-finder
could justifiably conclude that withholding approval would have been
objectively unreasonable.
19
1. Whether the Proposed Dealer Has Adequate Working
Capital
Under Van Ness, the first objective factor is whether the proposed
dealer has adequate working capital. 120 B.R. at 547. This factor could
reasonably support approval.
It is undisputed that during the negotiations with Alerus, Pioneer’s
working capital exceeded Land Rover’s guidelines by over 200 percent.
Alerus does not allege that this working capital would somehow disappear
when Pioneer became employee-owned. Thus, a reasonable fact-finder
could conclude that the plan had ample working capital.
2. The Extent of the Proposed Dealer’s Experience
The second objective factor is the extent of the proposed dealer’s
experience. Van Ness, 120 B.R. at 547. It is undisputed that
Pioneer’s senior management was experienced,
senior management planned to remain with Pioneer after the
sale, and
Pioneer’s other employees were generally experienced.
Based on these facts, one could justifiably regard Pioneer’s senior
management and other employees as highly experienced. Thus, the fact-
finder could justifiably conclude that the proposed dealer (the plan) had
substantial experience.
Aside from Mr. Brewer, Pioneer’s senior management consisted of
eight employees. These employees had over 115 years of combined
20
experience with Pioneer. Most had been with Pioneer since 1992, when
Pioneer opened Colorado’s first stand-alone Land Rover dealership. Some
employees had been with Pioneer even longer. During their service,
Pioneer grew into a successful, multimillion-dollar enterprise.
Members of senior management expressed their intentions to remain
with Pioneer after the sale and would have entered into long-term
employment contracts. And at least some senior managers planned to enter
into long-term employment contracts with non-compete provisions.
Many of Pioneer’s other employees were also experienced. In 2010,
the average employee had been with Pioneer for 5.35 years. This average
included some employees who had been hired in 2008.
A reasonable fact-finder could regard the plan’s personnel as highly
experienced in operating the dealerships.
3. Whether the Proposed Dealer Has Been Profitable in the
Past
The third objective factor is whether the proposed dealer has been
profitable in the past. Van Ness, 120 B.R. at 547. On this factor, a
reasonable fact-finder could conclude that Pioneer had historically been
profitable. After Pioneer became employee-owned, the same management
team and other employees would have remained with Pioneer. Thus, a
reasonable fact-finder could conclude that this factor would have supported
approval.
21
Alerus apparently suggests that in 2009 some of Pioneer’s
dealerships were unprofitable. But this alleged fact is disputed by other
evidence. At summary judgment, the district court had to view the evidence
favorably to the trustees and the plan. See Part I, above. With that
viewpoint, a reasonable fact-finder could justifiably regard Pioneer as
profitable in 2009.
4. The Location of the Proposed Dealer
The fourth objective factor is the location of the proposed dealer.
Van Ness, 120 B.R. at 547. The trustees and the plan contend that
Pioneer’s dealerships had prime locations. Alerus does not disagree with
this contention, and the dealership locations would not have changed with
Pioneer’s transition to employee ownership. As a result, this factor weighs
against summary judgment for Alerus.
5. The Proposed Dealer’s Prior Sales Performance
The fifth objective factor is the proposed dealer’s prior sales
performance. Van Ness, 120 B.R. at 547. As mentioned above, the trustees
and the plan presented evidence indicating that Pioneer’s dealerships had
been profitable. See Part VI(3), above. This evidence would allow a
reasonable fact-finder to conclude that Pioneer’s past sales had been
strong. After Pioneer became employee-owned, the same senior managers
and employees would continue to work for Pioneer. Therefore, a reasonable
22
fact-finder could conclude that past sales performance would have
supported approval.
Alerus points to a brief period when sales at Pioneer’s Land Rover
dealerships dipped below the national average. The trustees and the plan
present evidence attributing the dip largely to fire damage at one of the
dealerships.
A reasonable fact-finder could regard the temporary sales dip as
immaterial, for Pioneer was only marginally below the national average
and only for a short time. By the time that Land Rover would have made its
approval decision, sales had rebounded.
In light of the historically strong sales, the fact-finder could
reasonably weigh this factor against an award of summary judgment to
Alerus.
6. The Proposed Dealer’s Business Acumen
The sixth objective factor is the proposed dealer’s business acumen.
Van Ness, 120 B.R. at 547. The trustees and the plan presented evidence
allowing the fact-finder to conclude that Pioneer’s senior management had
sound business acumen. These senior managers planned to remain with
Pioneer after it became employee-owned. Therefore, a reasonable fact-
finder could conclude that the plan had sound business acumen.
According to Alerus, Land Rover could reasonably question the
plan’s business acumen because no one could guarantee whether or how
23
long these senior managers would remain with Pioneer. The fact-finder
could reasonably downplay this concern, for the senior managers planned
to enter into long-term employment contracts, some with non-compete
provisions.
Alerus also appears to question the business acumen of companies
owned by an employee stock ownership plan. Essentially, Alerus suggests
that Land Rover could discriminate against these companies, for some
employees may be unsuited to ownership. But some of the evidence
indicates that employee-owned companies outperform their competitors.
See Part II(4), above. Thus, the fact-finder could reasonably question why
Land Rover would doubt the business acumen of dealers controlled by
employee stock ownership plans.
The fact-finder could reasonably conclude that the proposed dealer
had sound business acumen. Thus, this factor cuts against summary
judgment to Alerus.
7. The Suitability of Combining the Franchise in Question with
Other Franchises at the Same Location
The seventh factor is the suitability of combining the franchise in
question with other franchises at the same location. Van Ness, 120 B.R. at
547. This factor is pertinent here because Pioneer had Porsche and Audi
dealerships at the same location as one Land Rover dealership. According
to the trustees and the plan, these other dealerships complemented the Land
24
Rover dealership. Alerus does not dispute this point, and the arrangement
would not have changed with Pioneer’s transition to employee ownership.
As a result, this factor could reasonably support approval of the transfer.
8. Whether the Proposed Dealer Provided the Manufacturer
with Sufficient Information Regarding Qualifications
The eighth factor is whether the proposed dealer provided the
manufacturer with sufficient information regarding qualifications. Van
Ness, 120 B.R. at 547. The parties do not make any arguments about this
factor.
The record allows a reasonable inference that Land Rover had
extensive information about Pioneer. Consequently, this factor weighs
against summary judgment for Alerus.
9. The Proposed Dealer’s Customer-Satisfaction Rankings
The Van Ness court appeared to recognize a ninth factor that
manufacturers may consider: the proposed dealer’s customer-satisfaction
rankings. See 120 B.R. at 550. Based on the summary-judgment evidence, a
reasonable fact-finder could conclude that Pioneer’s customer-satisfaction
rankings were above average. Nothing in the record suggests that customer
satisfaction would drop with Pioneer’s transition to employee ownership.
Alerus points to a brief period when Pioneer’s customer-satisfaction
rankings were not above average. In December 2009, one metric showed
25
that Pioneer’s Land Rover dealerships were slightly below the national
average. By another metric, these dealerships were at the national average.
The fact-finder could reasonably view these rankings as an aberration
caused largely by damage from a fire in October 2009. In addition, by the
time that Land Rover would have made its decision, customer-satisfaction
rankings had recovered. As a result, this factor weighs against summary
judgment to Alerus.
10. The Proposed Dealer’s Honesty and Good Faith Dealings
with the Manufacturer
For the sake of argument, I assume that there is a tenth factor that
manufacturers may consider: the proposed dealer’s honesty and good faith
dealings with the manufacturer. See Fladeboe v. Am. Isuzu Motors Inc., 58
Cal. Rptr. 3d 225, 241 (Cal. Ct. App. 2007); Part II(1), above. This factor
could not justify summary judgment to Alerus.
Alerus provides two reasons for Land Rover to view Pioneer as
dishonest. First, Alerus contends that in the years preceding the
negotiations, Mr. Brewer had sold about one-third of his Pioneer shares to
the plan without Land Rover’s approval. The parties agree that the sales
occurred, but they dispute whether the sales required Land Rover’s
approval. Second, Alerus alleges that Mr. Brewer falsely represented
ownership of 100% of Pioneer’s shares even after some of the Pioneer
shares had been sold to the plan. For the sake of argument, I assume that
26
the sales required Land Rover’s approval and that Mr. Brewer falsely
represented his ownership of Pioneer’s shares. Even with these
assumptions, a genuine question of material fact would exist on the
reasonableness of Land Rover’s potential decision to nix the transfer.
Alerus’s first argument fails because a reasonable fact-finder could
conclude that Mr. Brewer had made an honest mistake in failing to seek
Land Rover’s advance approval. Alerus’s argument that the sales required
approval is based on Land Rover’s dealership agreements. Only one of
these agreements exists in the summary-judgment record: an agreement
between a Pioneer subsidiary and Land Rover.
In part, the agreement restricted sales of shares of 15% or greater
equity in the “Dealer.” The agreement identified the “Dealer” as “Land
Rover Miramar, Inc. d/b/a Land Rover Miramar.” Appellants’ App’x, vol.
V, at 808. In addition, the agreement arguably restricted sales of Pioneer’s
equity by catch-all language preventing Mr. Brewer from making any
change “in the foregoing in any respect without [Land Rover’s] prior
written approval.” Id. at 813. This provision restricted transfers of entities
listed to that point, but Pioneer’s ownership was set out on the next page.
For the sake of argument, I assume that one or both of the provisions
required advance approval of the changes in Pioneer’s ownership. But the
need for approval is not clear. Thus, a reasonable fact-finder could
conclude that Mr. Brewer had made an honest mistake in failing to seek
27
Land Rover’s advance approval. Because there was little summary-
judgment evidence to suggest that Mr. Brewer had intentionally breached
the agreement, a reasonable fact-finder could justifiably conclude that it
would be objectively unreasonable for Land Rover to withhold approval
based on a belief that Mr. Brewer had flouted the agreement.
Alerus’s second argument is that Mr. Brewer falsely represented that
he owned 100% of Pioneer’s shares. This representation appears in a single
exhibit attached to one of the dealership agreements. By the time that this
agreement was signed, Mr. Brewer had sold 14.5% of Pioneer’s shares to
the plan. But the fact-finder could reasonably conclude that the erroneous
statement of ownership would not have benefited Mr. Brewer or harmed
Land Rover.
But let’s suppose that the fact-finder regards Mr. Brewer as dishonest
based on his failure to obtain advance approval for past sales or his
statement that he owned 100% of Pioneer’s shares rather than 85.5%. If the
transfer were approved, the sale would have stripped Mr. Brewer of any
ownership interest in Pioneer. If Land Rover thought that Mr. Brewer had
acted deceptively, Land Rover presumably would have relished the
transfer’s diminution in Mr. Brewer’s control over the dealerships. 6
6
As controlling shareholder of Pioneer, Mr. Brewer exercised
complete control over the dealerships. By contrast, Mr. Brewer was one of
three trustees for the plan. Thus, if the sale and transfer had taken place,
28
At oral argument, Alerus contended that a fact-finder could
reasonably suspect complicity of the other trustees and the plan in Mr.
Brewer’s alleged misdeeds. Oral Arg. at 26:54-28:10. But, the converse is
also true: the fact-finder could reasonably conclude that the other trustees
and the plan
did not know that the transfers required authorization by Land
Rover and
did not know that Mr. Brewer had incorrectly stated his
ownership percentage in Pioneer.
If the fact-finder drew these conclusions, the fact-finder could reason that
Land Rover should have relished the opportunity to deal with two of the
innocent trustees and the plan rather than an individual who had acted
deceptively. 7 See Pacesetter Motors, Inc. v. Nissan Motor Corp. in U.S.A.,
913 F. Supp. 174, 180 (W.D.N.Y. 1996); see also Part II(5) (discussing
Pacesetter Motors).
But let’s suppose that the fact-finder regards the other trustees and
the plan as complicit in Mr. Brewer’s alleged dishonesty. Even then, the
Mr. Brewer would have gone from total control to a minority vote as one of
three trustees.
7
The majority points to evidence indicating that Land Rover believed
“that the Plan was complicit in [Mr. Brewer’s] deception.” Maj. Op. at 27
n.11. Let’s assume that the majority is right. Even if Land Rover faulted
the plan, the fact-finder could have regarded that belief as objectively
unreasonable for the reasons discussed in the text.
29
fact-finder could reasonably conclude that any dishonesty by the trustees
and the plan would not justify rejection of the transfer. Federal and state
courts have long recognized gradations of dishonesty. For instance, federal
and state courts have done so in cases involving
securities law, 8
agency law, 9
punitive damages, 10
8
See, e.g., McKeel v. Merrill, Lynch, Pierce, Fenner & Smith, Inc.,
419 F.2d 1291, 1292 (10th Cir. 1969) (upholding the district court’s
finding that “in the main [the plaintiff’s] testimony is found to be
completely false” (internal quotation marks omitted) (emphasis added)).
9
See, e.g., Westinghouse Credit Corp. v. Green, 384 F.2d 298, 300
(10th Cir. 1967) (“[The defendant] had never investigated either the
property or the process, and the representations that it had done so were
completely false.” (emphasis added)).
10
See, e.g., Thomas v. Metro. Life Ins. Co., 40 F.3d 505, 510 (1st Cir.
1994) (holding that the plaintiff “simply has not shown that [the
defendant’s] conduct in the instant case rises to the level of morally
reprehensible conduct or extraordinary dishonesty” necessary for punitive
damages under New York law (emphasis added)).
30
the administration of estates, 11
the Federal Rules of Evidence, 12
misconduct by attorneys, 13 and
misconduct by law enforcement officers. 14
11
See, e.g., Fourniquet v. Perkins, 48 U.S. 160, 171 (1849) (stating
that a petition “alleged, not merely acts of maladministration, but instances
of dishonesty and spoliation extraordinary in character and extent”
(emphasis added)).
12
See, e.g., United States v. Morgan, 505 F.3d 332, 340 (5th Cir. 2007)
(holding that the defendant’s “violations of the conditions of her pretrial
release rise to a level of dishonest conduct sufficient to allow the
government’s inquiry” on cross-examination about specific instances of
misconduct (emphasis added)).
13
See, e.g., Read v. State Bar, 807 P.2d 1047, 1062 (Cal. 1991)
(“[P]etitioner’s high degree of dishonesty warrants disbarment.” (emphasis
added)).
14
See, e.g., Doe v. Dep’t of Justice, 565 F.3d 1375, 1380 (Fed. Cir.
2009) (criticizing a disciplinary board for failing “to articulate a
meaningful standard as to when private dishonesty [by an FBI agent] rises
to the level of misconduct that adversely affects the ‘efficiency of the
service’” (emphasis added) (quoting 5 U.S.C. § 7513(a) (2006))); State v.
Pub. Safety Emps. Ass’n, 323 P.3d 670, 690 (Alaska 2014) (noting that
“there are gradations of dishonesty that public policy will tolerate in its
police officers” (emphasis added)); Town of Stratford v. AFSCME, Local
407, 105 A.3d 148, 154 (Conn. 2014) (“[W]e must consider whether [a
police officer’s] dishonesty was ‘so egregious that it requires nothing less
than the termination of [his] employment so as not to violate public policy
. . . .’” (emphasis added) (third alteration in original) (quoting State v.
AFSCME, Local 391, 69 A.3d 927, 938 (Conn. 2013))); Kitsap Cty. Deputy
Sheriff’s Guild v. Kitsap County, 219 P.3d 675, 680 (Wash. 2009) (“[E]ven
if Brady [v. Maryland, 373 U.S. 83 (1963)] case law constituted a public
policy against reinstatement of [a police] officer found to be dishonest, it
provides no guidance regarding what level of dishonesty would prohibit
reinstatement.” (emphasis added)).
31
Applying similar gradations here, the fact-finder could reasonably
conclude that even if the other trustees and the plan had been complicit in
Mr. Brewer’s missteps, Land Rover should have regarded this complicity
as an inadequate reason to withhold approval of the plan.
Alerus argues that Land Rover could reasonably withhold approval if
the plan was materially deficient under just one factor. That is
theoretically true. For example, if Pioneer’s senior managers had cheated
Land Rover, embezzled, or committed serious crimes, no one could
legitimately fault Land Rover for withholding approval regardless of other
positive factors.
This is the point of a California opinion invoked by Alerus: Fladeboe
v. American Isuzu Motors, Inc., 58 Cal. Rptr. 3d 225 (Cal. Ct. App. 2007).
There a car manufacturer refused to approve the transfer of a dealership,
and the trial court impliedly found as a factual matter that this decision
was objectively reasonable. Fladeboe, 58 Cal. Rptr. 3d at 229-30, 240. But
that case differed from ours in the applicable standard of review and in the
degree of culpability on the part of the existing dealer.
First, the standard of review was different. Here we are considering
an award of summary judgment to Alerus. Thus, we view all of the
evidence and reasonable inferences in the light most favorable to the
trustees and the plan. See Part I, above. By contrast, the trial court in
Fladeboe conducted a bench trial and impliedly found that the car
32
manufacturer (Isuzu) had reasonably withheld approval of the transfer. Id.
at 237-40. Thus, the California Court of Appeal applied the substantial-
evidence standard. Id. at 238-39. Under this standard, the appellate court
“consider[s] the evidence in the light most favorable to the prevailing
party, drawing all reasonable inferences in support of the findings.”
Thompson v. Asimos, 212 Cal. Rptr. 3d 158, 169 (Cal. Ct. App. 2016). In
Fladeboe, the defendant manufacturer was the prevailing party and
beneficiary of this generous standard.
Second, the facts were far more egregious in Fladeboe. There a jury
found that Mr. Ray Fladeboe and a corporation that he owned had
committed fraud, and the California Court of Appeal upheld that finding.
Fladeboe, 58 Cal. Rptr. 3d at 233, 242-44. This fraud stemmed from Mr.
Fladeboe’s scheme to avoid taxes. Id. at 230. As part of that scheme, Mr.
Fladeboe had his corporation transfer the dealership’s assets to a new
corporation, which he also owned. Id. at 230-32. He then dissolved the old
corporation and allowed the new corporation to service Isuzu vehicles
without the appropriate license, assigned the original corporation’s Isuzu
code number to the new corporation, allowed the new corporation to
collect over $214,000 in sales incentives from Isuzu, and collected over
$171,000 in warranty reimbursements from Isuzu—all without the
knowledge of Isuzu. Id. at 232-33, 236. Isuzu learned of the dissolution
eight months after the fact and discovered that the new corporation had
33
serviced Isuzu vehicles without a license and had secretly used the old
dealer’s code number to collect sales incentives and warranty
reimbursements that Isuzu had intended for its old dealer. Id. Ultimately,
Isuzu refused to accept the new corporation as a dealer. Id. at 232.
If the trustees and the plan had concocted a scheme like the one in
Fladeboe, few would question Land Rover’s right to withhold approval.
And even with our far more benign facts, a fact-finder could justifiably
conclude that Land Rover might have reasonably withheld approval. But a
reasonable fact-finder could also have regarded it as objectively
unreasonable for Land Rover to nix the transfer. Unlike the dealer in
Fladeboe, the trustees and the plan had not
concocted a tax-avoidance scheme,
secretly dissolved,
secretly assigned a dealer code number, or
secretly allowed a new dealer to operate without a license,
collect funds from the manufacturer, and service vehicles.
Fladeboe suggests only an obvious truism: A fact-finder can justifiably
find that a vehicle manufacturer may reasonably withhold approval when
victimized by a proposed dealer’s fraudulent scheme to cheat the
manufacturer out of hundreds of thousands of dollars. That truism does not
affect our inquiry.
34
11. The Proposed Dealer’s Overall Financial Strength
A Land Rover executive testified that Land Rover considers the
proposed dealer’s overall financial strength in deciding whether to approve
a transfer. For the sake of argument, I assume that Land Rover could
consider this factor. See Part II(3), above.
The summary-judgment evidence indicates that Pioneer was
financially strong and would remain so after becoming employee-owned.
As noted above, Pioneer’s working capital exceeded Land Rover’s
guidelines by over 200 percent. See Part VI(1), above. Around that time,
Pioneer’s total capital was about $16.2 million. In addition, Pioneer owned
unencumbered vehicles worth about $11 million. If necessary, Pioneer
could use these vehicles to rapidly obtain cash or financing.
Pioneer also owned its real estate, which could serve as an additional
source of financing. In November 2009, this real estate was worth about
$9.5 million.
With this evidence, a fact-finder could reasonably conclude that
Pioneer was financially strong. No evidence suggested that this situation
would change once Pioneer became employee-owned. Therefore, this factor
weighs against an award of summary judgment to Alerus.
12. The Transfer’s Likely Effect on Financial Performance
A Land Rover executive testified that in determining whether to
approve a transfer, Land Rover considers the likely effect on financial
35
performance. For the sake of argument, I assume that Land Rover may
consider this factor. See Part II(3), above.
As noted above, senior management planned to remain with Pioneer
after the sale. See Part VI(2), above. This continuity suggests that financial
performance would not be adversely affected by the sale.
Indeed, the summary-judgment evidence indicates that the sale could
enhance Pioneer’s financial performance. As discussed above, the record
contains evidence that ownership by an employee stock ownership plan is
advantageous. See Part II(4), above. Thus, drawing all reasonable
inferences in favor of the trustees and the plan, a reasonable fact-finder
could infer that the sale would probably boost Pioneer’s financial
performance. This factor weighs against an award of summary judgment to
Alerus.
13. Management’s Commitment to the Dealership
In determining whether to approve a transfer, Land Rover also
considers the level of commitment shown by the proposed dealer’s
management. For the sake of argument, I assume that Land Rover may
consider this factor. See Part II(3), above.
The summary-judgment evidence indicates that
Pioneer’s senior managers planned to enter into long-term
employment contracts, at least some of which had non-compete
provisions, and
36
employees generally become more committed when they
become owners.
Therefore, a reasonable fact-finder could conclude that (1) senior
management was committed to Pioneer and (2) after Pioneer became
employee-owned, senior management would remain committed or even
intensify their commitment. As a result, the factor weighs against an award
of summary judgment.
* * *
In sum, none of the thirteen objective factors precludes a genuine
issue of material fact on the reasonableness of a decision by Land Rover to
withhold approval. This case is not one where dispositive facts are
undisputed or indisputable. As a result, the district court should have
concluded that a genuine issue of material fact existed. In these
circumstances, I would reverse. Because the majority reaches a different
conclusion, I respectfully dissent.
VII. Conclusion
For the sake of argument, I assume that Land Rover did not want to
approve the transfer. Notwithstanding that assumption, a reasonable fact-
finder could conclude that Land Rover would ultimately approve the
transfer because doing otherwise would have been objectively
unreasonable.
37
The record indicates that Land Rover follows the objective-
reasonableness requirements of California and Colorado, which would
preclude Land Rover from unreasonably withholding approval. Our court
must presume that Land Rover would have followed these requirements.
The objective reasonableness of Land Rover’s hypothetical refusal
entails a disputed question of material fact. In extreme circumstances
where dispositive facts are undisputed or indisputable, objective
reasonableness may be decided on summary judgment. But those
circumstances are not present here.
Viewing the evidence and reasonable inferences in the light most
favorable to the trustees and the plan, I conclude that a reasonable fact-
finder could find that (1) withholding approval would be objectively
unreasonable, (2) Land Rover probably would not have exercised the
alleged right of first refusal, and (3) Land Rover would probably have
approved the transfer.
Alternatively, the fact-finder could reasonably conclude that Pioneer,
the trustees, and the plan would have used an injunction to force Land
Rover to approve the transfer. Viewing the evidence and reasonable
inferences favorably to the trustees and the plan, as we must at this stage,
we should conclude that the state courts would have entered an injunction
to require Land Rover’s approval of the transfer.
38
Because the trustees and the plan have defeated the sole basis for the
district court’s ruling, I would reverse and remand for further proceedings.
Because the majority affirms, I respectfully dissent.
39