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Bill Ashlock v. Jonathan Slone

July 25, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Plaintiff Bill Ashlock asserts claims sounding in contract and quasi-contract against his former business associate, defendant Jonathan Slone, alleging that Slone failed to pay Ashlock the value of his equity stake in iX Net Holding Limited ("iX Net"), which they both served as corporate officers. Pursuant to a stipulation entered on December 1, 2011, the claims against defendants iX Net, Calyon Securities (USA) Inc., CLSA Limited, Setclear Inc., and Setclear Pte. Limited were dismissed, and the only remaining defendant is Mr. Slone. Dkt. 66. In this diversity action, Ashlock alleges that Slone's failure to pay him his equity share constitutes breach of contract. He also brings claims for quantum meruit, unjust enrichment, breach of fiduciary duty, fraud, promissory estoppel, breach of the implied covenant of good faith and fair dealing, and, finally, conversion. Defendant Slone moves for summary judgment under Federal Rule of Civil Procedure 56(a) in his favor as to all claims. For the reasons below, the motion for summary judgment is granted in part and denied in part.


A.Ashlock's Employment with iX Net

In June 2005, Slone formed iX Net, a Bermuda corporation, to provide third-party, back-office clearing and aggregation services to the securities industry. AC ¶ 6. In April 2005, a few months prior to the official formation of iX Net, Slone and Ashlock began a discussion about working together. Ashlock Aff. Ex. A. On May 25, 2005, Ashlock sent Slone an email expressing his interest in joining the start-up. Id. That summer, Slone extended an offer to Ashlock to join iX Net as the Chief Operating Officer (COO). See id. Ex. C. During his tenure at iX Net, Ashlock received a salary and was eligible for annual bonus awards. Ashlock 56.1 ¶ 8.

On August 18, 2005, Ashlock and Slone exchanged emails confirming Ashlock's role at iX Net and discussing his equity participation level. Slone Decl. Ex. A. In the first email, Slone offered an equity participation level of "no less [than] 3% of iX Net." Id. In the second email, Ashlock sought to clarify this point and suggested that his equity level be "no less than 3% with a target level between 5 to 8%." Id. In the third and final email, Slone confirmed "[let's] say no less than 4% and we will move towards the target as we build the company further." Id. The parties agree that this exchange of emails constitutes an enforceable contract between Ashlock and Slone ("Contract"), entitling Ashlock to between 4% and 8% of the company's equity. See Def.'s Br. 9; Pl.'s Br. 20--21.

On October 30, 2006, Slone received a payment of $2,534,985 from CLSA Limited ("CLSA") in connection with a proposed sale of iX Net. Slone Decl. ¶ 10. That payment was made directly to Slone personally, not to the corporate accounts of iX Net. Slone Dep. 105. On November 7, 2006, that sale was executed in a document entitled the "Heads of Agreement" which was signed by Slone and an officer of CLSA. Slone Decl. ¶ 10. Ashlock was not a party to the negotiations with CLSA, though he was shown drafts of the Heads of Agreement. Ashlock Dep. 59--60. Ashlock was aware that iX Net had been sold to CLSA, as evidenced by his emails to CLSA executives in which he references the fact of the sale. Slone Decl. Ex. F. Following the sale of iX Net, the company's name changed to SetClear. Slone 56.1 ¶ 21. In 2007, Ashlock relocated to Singapore where he continued to build out SetClear's operations for over three years. Ashlock 56.1 ¶¶ 23, 25. Finally, in July 2008, Ashlock resigned from SetClear. Id. ¶ 26.

B.2006 Payment to Ashlock

At issue in this case is whether Ashlock was ever paid his equity share of the value of iX Net.*fn2 As follows, it is undisputed that, in October 2006, Ashlock was paid $200,000 from iX Net, but the parties dispute whether that payment represented Ashlock's equity stake, as Slone argues, or was a bonus or other consideration for services rendered, as Ashlock posits. The events and communications most relevant to that dispute are as follows.

On October 25, 2006, Slone sent an email to Ashlock saying, "i need u to bill me 200000 for services to Ixnet with your tax id. Danny needs to do the same for 10000. Can u sort 2day?" Slone Decl. Ex. D.

On October 30, 2006-the same day that Slone received the payment from CLSA and eight days before the execution of the sale of the company-Ashlock received a payment for $200,000 from iX Net. Ashlock Aff. Ex. F. Also on October 30, 2006, Danny Nadalalicea, another iX Net employee, received a payment for $10,000. Ginsberg Aff. Ex. J. The payments to Ashlock and Nadalalicea were accounted for in iX Net's general ledger as payments to "outside consultants." Id. at Ex. L. Ashlock's salary was not ordinarily paid by iX Net. Instead, it was disbursed to him by Calyon Securities (USA) Inc., ("Calyon") a French retail and investment bank to which Ashlock was seconded.*fn3 See Slone Decl. Ex. C.

In an email to Slone on January 25, 2007, Ashlock broached the subject of a bonus payment for 2006. Slone Decl., Ex F. The conversation initially concerned a bonus payment to Mr. Nadalalicea, who was the only other iX Net employee eligible for a bonus aside from Slone and Ashlock. Slone replied to Ashlock that he was not inclined to offer a bonus to Mr. Nadalalicea given that "it is unlikely that clsa would want to pay anything having just purchased the company and having no revenues." Id.

The next day, January 26, 2007, Ashlock communicated by email with Mark Mattheys, an officer of CLSA, about whether he should ask Slone for a bonus for himself. Slone Decl. Ex. F. Ashlock specifically stated to Mattheys that he believed that "when CLSA purchased iX Net/SetClear, there was a clear understanding that the payment was not a 2006 bonus" and, therefore, he was still eligible for a bonus for 2006. Id. Mattheys replied:

I had understood from Slone in our discussions last year that he was making a payment to you based on the sale of IX Net to CLSA which took place in and or around October last year. This could well mean that from Slone's standpoint he was responsible for making a payment to you which would have compensated you up until the time CLSA purchase[d] IX Net.

Id. Plaintiff's counsel represented at argument that Ashlock never received a bonus in 2006.

In October 2007, Ashlock received another payment of $200,000 from iX Net. Ashlock 56.1 ¶ 9. The parties agree that the 2007 payment was an incentive reward for securing a valuable account with Bloomberg Trade Book. Ashlock Dep. 141; Slone 56.1 ¶ 21.

Upon his departure from SetClear in 2008, Ashlock asked that he be paid the value of his equity share of iX Net pursuant to the Contract of 2005. Despite a protracted exchange with Laurie Young of CLSA, Ashlock was never told the status of his equity share in iX Net. See Ashlock Aff., Exs. I, K, L.

C.The Present Lawsuit

On January 20, 2010, Ashlock commenced this lawsuit to recover the value of his equity stake in iX Net. He asserts eight causes of action: (1) breach of contract, (2) quantum meruit, (3) unjust enrichment, (4) breach of fiduciary duty, (5) fraud, (6) promissory estoppel, (7) breach of the implied covenant of good faith and fair dealing, and (8) conversion. In essence, Ashlock claims, the $200,000 payment he received in 2006 payment did not represent his equity stake. Consequently, Slone is in breach of his duty to pay Ashlock a 4% to 8% equity stake in iX Net.

Slone moves for summary judgment as to all claims. He argues that the October 2006 payment satisfied his contractual obligation, and that Ashlock's quasi-contract claims are not viable in light of the parties' enforceable agreement. ...

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