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Hassan v. Deutche Bank A.G.

September 28, 2007

TARIQ HASSAN AND THE BUYING TRIANGLE, PLAINTIFFS,
v.
DEUTCHE BANK A.G. AND JEFFREY BAER, DEFENDANTS.



The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.

MEMORANDUM AND ORDER

The amended complaint in this action alleges one claim for relief: tortious interference with prospective business relations. With the completion of discovery in this action, the defendants, Deutsche Bank A.G. ("Deutsche Bank") and Jeffrey Baer, now move for summary judgment, asserting that there is no evidence that defendants acted for the sole purpose of injuring plaintiffs or, regardless of their purpose, used means that amounted to a crime, independent tort or were otherwise "extreme and unfair." Plaintiffs Tariq Hassan and The Buying Triangle, LLC ("TBT") assert that the evidence raises a triable issue of fact under the "sole purpose" and "wrongful means" prongs of the tort.

At a distant glance, plaintiffs' submission in opposition to summary judgment appears so weighty as to likely present at least one material fact in dispute. By my calculation, plaintiffs have submitted more than 1,900 pages of deposition transcripts in opposition to the motion.*fn1 Here, I conclude that the material facts on which plaintiffs rely would not permit a reasonable jury to find in their favor under the standard articulated by the New York Court of Appeals for a claim of tortious interference with prospective business relations. Defendants' motion for summary judgment will be granted.

I. The Parties and Their Relationship to Accenture

For the purposes of this motion, this Court accepts as true plaintiffs' version of the facts, though not necessarily the conclusory labels that they have attached to those facts. This Court also accepts as true those facts tendered by the defendants which plaintiffs have not disputed. All reasonable inferences have been drawn in plaintiffs' favor.

Deutsche Bank decided to outsource its global purchasing and accounts payable functions and, in January 2004, entered into a seven-year arrangement with Accenture LLP ("Accenture"). (Pl. Resp. to Rule 56.1 ¶ 3; Pl. Rule 56.1 ¶ 123.)*fn2 The arrangement contemplated Accenture handling procurement in 77 countries and processing one million invoices annually. (Pl. Resp. to Rule 56.1 ¶ 4.)*fn3 Deutsche Bank was Accenture's "anchor client." (Pl. Rule 56.1 ¶ 125.) It became important to Deutsche Bank that Accenture succeed and grow its business because it would achieve cost savings from Accenture's ability to spread its costs over a larger customer base. (Pl. Resp. to Rule 56.1 ¶ 33-35.) If Accenture failed as a business, then, at a minimum, Deutsche Bank would need to develop a new procurement outsourcing vendor. (Id. at ¶ 36.)

The association between Deutsche Bank and its independent procurement arm, Accenture, was close. Deutsche Bank had the right to tell Accenture who could work on its account. (Pl. Rule 56.1 ¶ 136.) Before hiring a new employee to work on the account, Accenture arranged for the employee to meet with a representative of Deutsche Bank. (Id. ¶ 138.)

Plaintiff Hassan had been the Global Head of Purchasing for Deutsche Bank since January 2002. (Pl. Resp. to Rule 56.1 ¶ 1.) In May 2004, Deutsche Bank removed Hassan as head of procurement and replaced him with defendant Jeffrey Baer. (Id. ¶ 6.) According to Hassan, at the time of his separation from Deutsche Bank, the bank wanted Accenture to hire Hassan because this would mitigate any claim by Hassan that because of his age he would have difficulty finding suitable employment. (Id. ¶ 9.) Deutsche Bank offered to contribute towards Hassan's retention, but Accenture declined. (Id. ¶ 10-11; Sherman Dep. 214-17.)

After leaving Deutsche Bank, Hassan formed a limited liability company, The Buying Triangle, LLC, and entered into a consulting agreement with Accenture; the parties to the agreement were Accenture LLP and "Tariq Hassan of the Buying Triangle, llc." (Id. ¶ 14-16.) The consulting agreement became effective as of September 1, 2004, and had a termination date of August 31, 2005, unless extended in writing. (Id. ¶ 18.) Either party to the agreement had the right to terminate the agreement "without cause" on seven-days written notice. (Id. ¶ 19-20.)

On or about April 7, 2005, Accenture informed Hassan that it was exercising its right to terminate the consulting arrangement. (Id. ¶ 74.) It is plaintiffs' business relationship with Accenture with which defendants are alleged to have tortiously interfered.

Having set forth the backgrounds of the parties, I will defer further discussion of the facts until, first, discussing the standards governing a summary judgment motion and, then, laying out the elements of a claim of tortious interference with prospective business relations under New York law.

II. Summary Judgment Standard Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed. R. Civ. P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citations omitted).

When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed. R. Civ. P. In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (citation omitted).

An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id.

III. Legal Standards: Tortious Interference with Business Relations

Here, the contract between Accenture and plaintiffs was terminable without cause on seven-days notice. The parties agree that any interference therewith is assessed under the tort of interference with business relations or prospective business advantage, rather than under a theory of tortious interference with contract. See Kosson v. Algaze, 203 A.D.2d 112 (1st Dep't 1994) (absent a ...


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