The opinion of the court was delivered by: ROBERT W. SWEET
Defendants Robert Baranaskas ("Baranaskas") and Ferdie Falk ("Falk") (collectively the "Defendants") move to dismiss the Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, in this diversity action brought by plaintiff Sazerac Company, Inc. ("Sazerac") or, in the alternative, the Defendants seek to join Takara Shuzo Co., Ltd. ("Takara") as a necessary party, pursuant to Rule 19 of the Federal Rules of Civil Procedure.
For the reasons set forth below, the Defendants' motion to dismiss is granted.
Sazerac is a corporation organized and existing under the laws of the State of Louisiana, with its primary place of business in New Orleans. Sazerac distributes alcohol beverage products throughout the United States.
Falk is a citizen of the State of Florida and Baranaskas is a citizen of the State of New York. The Defendants were the majority owners of Age International Inc. ("Age"), a Kentucky Corporation with offices in Roslyn, New York, which distributes alcohol beverage products throughout the United States, through AADC Holding Company, Inc. ("AADC"), a New York Corporation. Falk owned 35.1% and Baranaskas owned 33.9% of the stock of AADC.
Takara, a Japanese Corporation, is the exclusive distributor of Age products in Japan and was the minority shareholder in AADC at the time the alleged events occurred giving rise to this action. Takara owned approximately 22.5% of the stock of AADC and had a contractual right of first refusal to purchase the remaining 77.5%.
Prior Proceedings and Facts
On April 30, 1991, Takara purchased approximately 22.5% of the stock in AADC. Under the terms of that sale, Takara had a 30-day right of first refusal to purchase all other shares of AADC stock.
On July 10, 1992, Defendants Baranaskas and Falk entered into an agreement (the "Heublein Agreement") to sell their majority interest in AADC, the parent company of Age, with Heublein Inc. ("Heublein") for approximately $ 20,000,000. Heublein, a subsidiary of the multinational corporation Grand Metropolitan Incorporated, is in the business of importing and distributing alcoholic beverages such as Bailey's Irish Cream. On August 4, 1992, written notice of Heublein's offer, and AADC's intention to accept, was sent to Takara. On September 3, 1992, Takara gave notice to AADC that it intended to exercise its right of first refusal to purchase the stock. Apparently, Heublein informed Takara that it intended to proceed with the purchase which was due to close on September 4, 1992. In the absence of assurances to the contrary from AADC, Falk or Baranaskas, Takara then sought a temporary restraining order in the United States Court for the Southern District of New York.
On September 21, 1992, a stipulation and consent order (the "Consent Order") was "So Ordered" by the Honorable Kevin T. Duffy. The Consent Order stated: (1) that Takara had sent a letter on September 3, 1992 to AADC regarding Takara's right of first refusal of the sale of AADC stock; (2) that Takara tendered to AADC a proposed Share Purchase Agreement ("SPA") which provided a closing date of September 30, 1992; and (3) that the closing date could be extended until October 15, 1992, provided there were reasonable grounds for such notice; (4) that AADC, Baranaskas, Falk and Heublein all agreed to the provisions of the closing date in the SPA; and (5) that if Takara did not purchase the outstanding stock of AADC by September 30 or give notice extending the Closing Date, that Baranaskas and Falk would sell the stock to Heublein in accordance with the terms of the Heublein Agreement. (See Consent Order; Defs.' Mot. to Dismiss, Ex. B.)
On September 30, 1992, Takara exercised its right of first refusal and purchased the outstanding stock in AADC in accordance with the terms of the SPA -- allegedly the "mirror image" of the Heublein Agreement. Sazerac contends that at the same time the SPA was executed between the Defendants and Takara, a "concurrent" sale by Takara to the Sazerac of certain "Age Assets" of AADC and its subsidiaries was formalized in an Asset Purchase Agreement (the "APA") on September 3, 1992. The APA has not been attached to the Complaint and its terms and parties are unknown.
Prior to the closing, Age was the primary operating company owned by AADC. Sazerac alleges that the Defendants were aware that Takara intended to sell the Age Assets and certain AADC subsidiaries to Sazerac immediately upon the execution of the SPA by them and Takara. According to Sazerac, the Defendants thus knew of the representations made in connection with the sale of AADC stock were for the benefit of Takara as well as Sazerac.
Takara apparently did transfer the Age Assets to Sazerac, although Takara retained ownership of the corporate entity Age and the trademarks to certain of the Age Assets. In addition, Takara appears to have entered into a long term licensing agreements with Sazerac relating to the use of those trademarks. Sazerac, in turn, agreed to indemnify Age and Takara for certain assumed liabilities.
Sazerac now seeks to file suit against Defendants Falk and Baranaskas for violating warranties allegedly made to Takara under Section 6.8 of the SPA by failing to disclose certain preexisting obligations concerning: (1) the Sterling Stone and W & W contracts' liquidated damages provisions which required Age to pay an amount equal to the sum of monthly commissions paid to those parties over a year; (2) the Missouri Conrad Liquor Co. distribution contract, an obligation allegedly not disclosed by the Defendants prior to the closing of the SPA; and (3) certain of the Age employee benefit plans later discovered to be out of compliance with the requirements of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., contrary to the Defendants' alleged representations otherwise and Section 6.11(b) of the SPA with Takara.
As a result, Sazerac alleges the following four legal counts in its Complaint: (1) that the Defendants intentionally misrepresented and failed to disclosure the obligations binding the Age Assets; (2) that the Defendants negligently misrepresented certain facts to Sazerac, under a theory that due to the "integrated" nature of the transactions between Sazerac and Takara and between Takara and the Defendants, there was a "functional equivalent of contractual privity" between the Defendants and Sazerac; and (3) that Sazerac is a third party beneficiary to the SPA between the Defendants and Takara and should accordingly be reimbursed for its losses due to the alleged misrepresentations and non-disclosures; and (4) a declaration should be issued by the ...