New York law "implies" a duty in all contracts — a duty to perform promises in good faith.*
Does that mean a party must adjust a contractual benchmark rate if it knows something has distorted the benchmark?
Yes, the Second Circuit held in Security Plans, Inc. v. CUNA Mut. Ins. Society, No. 13-384-cv (2d Cir. Oct. 17, 2014).
The ruling may prove important in pending cases that involve trillions of dollars in benchmark transactions.
The case before the court arose from the sale of a credit insurance business. The asset purchase agreement required CUNA Mutual, the buyer, to pay an "earnout" that tracked future profits from the business.
The problem arose from the "loss ratio" that CUNA Mutual used to deduct "losses" from premium payments to compute the profits. As it realized before the earnout period ended, the loss ratio it applied to all its lines of business — including the credit insurance segment — overstated actual losses.
The unduly high loss ratio produced a zero earnout. That upset the seller, Security Plans.
It sued, alleging, in relevant part, that CUNA Mutual breached the covenant of good faith and fair dealing — both by setting the loss ratio too high and by failing to adjust it at the end of the earnout period.
The district court granted CUNA Mutual summary judgment in relevant part.** Security Plans appealed.
Second Circuit ruling
The Second Circuit affirmed in part and reversed in part. It laid out the pertinent law as follows:
Under New York law, all contracts that confer discretion include an implied promise that neither party will "act arbitrarily or irrationally" in exercising that discretion.
* * * *
The implied covenant [of good faith] does not "undermine a party's 'general right to act on its own interest in a way that may incidentally lessen'" the other party's expected benefit. . . . The covenant will be breached only in a narrow range of cases. A plaintiff must show substantially more than evidence that the defendant's actions were negligent or inept. . . . The plaintiff must instead demonstrate something more, such as that the defendant "act[ed] arbitrarily or irrationally in exercising [the] discretion" afforded to it under the contract.
Security Plans, slip op. at 3 & 24-25 (citations omitted).
CUNA Mutual's error in setting the loss ratio, the panel held, did not support a bad faith claim "inasmuch as the record contains nothing to suggest anything more than negligence" on its part. Id. at 26.
But CUNA Mutual's "refus[al] to provide a revised earnout calculation in light of an alleged system-wide error concerning claim reserves" presented a different matter, the court believed. Id. The panel said:
[T]he contract places on the defendant the responsibility for calculating the earnout, thereby conferring a limited discretion in selecting the values — such as loss ratios and written premium — that enter into the calculation in the first place. . . . This latter form of discretion is indeed the subject of plaintiff's claim in this case, and the plaintiff may therefore argue that the defendant acted arbitrarily or irrationally in handling the earnout calculation.
Id. at 26-27 (citations and footnote omitted). The panel concluded:
Making all inferences in the plaintiffʹs favor, a rational trier of fact could properly conclude that it was arbitrary for the defendant to refuse to revise the earnout calculation in order to correct for the suspect numbers. On this record, a trier of fact could, but would not necessarily be required to, conclude that: (i) the initial decision that set high claim reserves for the earnout period was made by mistake, and not as a result of actuarial judgment; (ii) this mistake caused Security Plansʹ performance data to be distorted in ways that negatively affected the earnout; (iii) this mistake30 was noticed in time to revise the earnout calculation accordingly, and such revision was possible; (iv) the mistake was acknowledged by all parties concerned; and (v) CUNA Mutual, for no valid business reason, decided not to adjust the earnout calculation. In making this second decision not to revise the calculation, CUNA Mutual was exercising its contractually conferred authority as the party charged with calculating the earnout, but a trier of fact could find it exercised this discretion arbitrarily.
Id. at 29-30.
The Southern District of New York has before it several cases that involve claims of deliberate manipulation involving benchmark rates. These include In re Foreign Exchange Benchmark Rates Antitrust Litigation, No. 13-07789 (S.D.N.Y.), In re North Sea Brent Crude Oil Futures Litigation, No. 13-md-02475 (S.D.N.Y.), and In re LIBOR-Based Financial Instruments Antitrust Litigation, No. 11-md-2262 (S.D.N.Y.).***
The benchmarks at issue affect trillions of dollars in transactions.
In at least two of the three, the plaintiffs assert state law claims (as well as federal ones). The Second Circuit's ruling in Security Plans should give those claims a legal boost, pointing the way to showing conduct that violates the covenant of good faith and fair dealing in the setting or adjustment of the relevant benchmarks.
* Moran v. Erk, 901 N.E.2d 187, 190 (N.Y. 2008) (stating that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract").
** We've ignored other parts of the case to focus on the benchmark aspect.
*** Blawgletter's firm serves as lead counsel for one of the plaintiff classes in the LIBOR litigation.