Fed Cetera LLC v. National Credit Services Inc

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-1243
_______________
FED CETERA, LLC, a New Jersey limited liability company,
Appellant
v.
NATIONAL CREDIT SERVICES, INC., a Washington
Corporation
_______________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil No. 1-17-cv-02809
District Judge: Honorable Robert B. Kugler
_______________
Argued: October 22, 2018
Before: KRAUSE, COWEN, and FUENTES, Circuit Judges
(Opinion Filed: September 17, 2019)
Michael J. McCaney, Jr. [ARGUED]
Keller & Goggin
1528 Walnut Street
Suite 900
Philadelphia PA 19102
Counsel for Appellant Fed Cetera, LLC
Leigh Ann Benson
Arthur P. Fritzinger [ARGUED]
David J. Walton
Cozen O’Connor
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Counsel for Appellee National Credit Services, Inc.
_______________
OPINION OF THE COURT
_______________
FUENTES, Circuit Judge.
National Credit Services (National Credit), a debt
collection agency, sought opportunities to contract with the
federal government to provide debt collection services. In the
hopes of winning such a contract, it reached an Agreement with
a company called Net Gain, which was in the business of
offering networking relationships to its clients. In return for
introductions, National Credit agreed to pay Net Gain a
2
finder’s fee for any related contract that National Credit
“consummated” during the term set in the Agreement. A few
years later, Net Gain assigned its rights in the Agreement to
Appellant Fed Cetera.
During the effective period of the Agreement,
National Credit signed a contract with the federal government.
It did not begin performance on that contract until late 2016,
after the Agreement’s applicable period ended. Because
National Credit had not begun performance during the contract
period, it refused to pay Fed Cetera the finder’s fee, arguing
that it had not “consummated” the federal contract. Fed Cetera
sued, and National Credit moved for judgment on the
pleadings.
After reviewing the Agreement, the District Court
concluded that the Agreement required some amount of
performance on the federal contract to trigger a finder’s fee,
which had not occurred during the Agreement’s relevant
period. Thus, it granted judgment in National Credit’s favor.
Fed Cetera appeals that ruling now.
The question before us, then, is whether the terms of
the Agreement required some degree of performance while the
Agreement was in force in order for a contract to be
“consummated.” We conclude that it did not, and, for the
reasons stated here, we reverse.
I.
To win a student debt collection contract from the
federal government, a debt collector typically must follow a
convoluted but—within the industry—well-known path. The
3
company must begin by working as a subcontractor to a current
federal contractor. If that subcontract goes well, then the
company may have an opportunity to receive a direct federal
contract the next time around.
National Credit sought such an arrangement. In an
effort to find a federal contractor with which it could
subcontract, National Credit sought out Net Gain for
networking opportunities. National Credit and Net Gain
entered into their Agreement on February 1, 2010. Under that
agreement, National Credit owed Net Gain—and later Net
Gain’s assignee Fed Cetera1—the finder’s fee for any related
contract Net Gain consummated between the signing date and
February 1, 2016.
Specifically, the Agreement states that National
Credit owes a fee any time a “Fee Transaction . . . is
consummated.”2 A “Fee Transaction,” further, can mean either
one of two things: (1) “the consummation, with any Federal
Contractor, of any transaction related to ‘teaming’ or
‘subcontracting.’”; and (2) the “subsequent consummation of
any contract with any Federal government agency for which
the Principal has been invited to compete, and is later awarded
a contract to perform” where that contract “shall have arisen
due to any ‘teaming’ or ‘subcontracting’ engagement [Net
Gain] may have facilitated in advance of any such award.”3
Once a Fee Transaction is consummated, the fee was “due and
1
Net Gain assigned its rights to Fed Cetera in 2013,
after it had introduced National Credit to the federal contractor
whose subcontract agreement triggered the first finder’s fee.
2
App. 27.
3
Id.4
payable until fees are no longer generated from any and all Fee
Transactions, within thirty (30) days after each receipt during
such period by Principal . . . of revenue resulting from or in any
way related to the Fee Transaction, including any fees paid
after the expiration or termination of any contract.”4
In other words, Net Gain agreed to introduce National
Credit to a federal contractor. If the introduction worked out,
National Credit would get a subcontract with that contractor.
That subcontract could ultimately lead National Credit to win
a direct federal contract of its own. National Credit would owe
Net Gain a 2.5% finder’s fee for both contracts—assuming
they were “consummated” within the period set by the
Agreement. National Credit needed to pay Net Gain that fee
within thirty days after it received any revenue related to the
Fee Transactions.
The structure of this arrangement is not at issue. Nor
is whether a given contract falls within the terms of the
Agreement.5 National Credit signed two relevant contracts
4
Id.5
In its brief, National Credit appears to suggest that Fed
Cetera has not alleged sufficient facts about the federal
contract. See Appellee Br. 16 (“Fed Cetera failed to plead
anything about the [federal] Contract, including anything about
the . . . substantive terms.”). It is unclear to what end National
Credit offers this argument, but to the extent National Credit
adds this as a separate ground to challenge the sufficiency of
Fed Cetera’s pleadings, it is forfeited, as there is no indication
this was argued before or considered by the District Court. See
App. 7 (“For purposes of this motion, the only relevant
question is whether the execution of the [federal] Contract is a
5
during the Agreement’s operative period. The first was a
subcontract with a third-party federal contractor. National
Credit regularly made finder’s fee payments for that
subcontract without apparent dispute.
The second, which is in dispute, was a direct contract
with the federal government, signed in 2014. However,
National Credit did not begin performance on that contract
until September 2016, several months after the Agreement’s
term concluded. Because it had not yet begun performance,
National Credit refused to pay Fed Cetera the finder’s fee,
asserting that the language of the Agreement did not require it
to because no Fee Transaction had been consummated.
Fed Cetera sued. National Credit moved for judgment
on the pleadings, arguing that the terms of the contract were
plainly in its favor. The District Court agreed with National
Credit. The District Court concluded that in order for a Fee
Transaction to be consummated, the Agreement required some
‘consummation’ within the meaning of the agreement.”); App.
49-52 (detailing National Credit’s arguments before the
District Court). The parties in any event agree that the federal
contract at issue bears the contract number ED-FSA-14-D-
0018, and, as a federal contract, is a matter of public record,
which we may consider here. See Pension Tr. Fund for
Operating Eng’rs v. Mortg. Asset Securitization Transactions,
Inc., 730 F.3d 263, 271 (3d Cir. 2013). The particulars of the
federal contract are otherwise irrelevant to the question on
appeal, which concerns only whether, under the terms of the
Agreement, it was consummated during the Agreement’s
applicable period. Whether National Credit actually owes any
fees to Fed Cetera is a question for another day.
6
degree of performance on the contract. Since National Credit
had not yet begun that performance by the end of the
Agreement’s applicable period, the federal contract fell outside
the terms of the Agreement, and National Credit owed no
finder’s fee. The District Court entered judgment in National
Credit’s favor, and Fed Cetera timely appealed.6
II.
The parties agree that New Jersey law applies.7 “To
establish a breach of contract claim, a plaintiff has the burden
to show that the parties entered into a valid contract, that the
defendant failed to perform his obligations under the contract
and that the plaintiff sustained damages as a result.”8 Under
6
National Credit is a Washington corporation, and Fed
Cetera is a New Jersey limited liability company. This is a
contract dispute between diverse parties, governed by New
Jersey law. The District Court had jurisdiction over this matter
pursuant to 28 U.S.C. § 1332, and we have appellate
jurisdiction through 28 U.S.C. § 1291.
7
The Court exercises plenary review of judgments on
the pleadings entered under Federal Rule of Civil Procedure
12(c). Jablonski v. Pan Am World Airways, Inc., 863 F.2d 289,
290-91 (3d Cir. 1988). “A motion for judgment on the
pleadings will be granted . . . if, on the basis of the pleadings,
the movant is entitled to judgment as a matter of law.” DiCarlo
v. St. Mary Hosp., 530 F.3d 255, 262 (3d Cir. 2008); see Fed.
R. Civ. P. 12(c). We accept the nonmoving party’s factual
allegations as true and construe all allegations in the light most
favorable to that party. Id.8
Murphy v. Implicito, 920 A.2d 678, 689 (N.J. Super.
Ct. App. Div. 2007).
7
New Jersey law, courts enforce contracts looking at the intent
of the parties, “the contractual terms, the surrounding
circumstances, and the purpose of the contract.”9 “Whether a
contract is clear or ambiguous is a question of law.”10 “If the
language of a contract is plain and capable of legal
construction, the language alone must determine the
agreement’s force and effect.”11 “Even in the interpretation of
an unambiguous contract, we may consider all of the relevant
evidence that will assist in determining its intent and
meaning.”12 If the contract is “ambiguous, the ‘fact-finder
must attempt to discover what the contracting parties . . .
intended [the disputed provisions] to mean,’” and accordingly,
judgment on the pleadings would not be appropriate.13
The only question here is when, under the terms of the
Agreement, National Credit’s second contract was
“consummated.” The Agreement’s applicable period lasted
9
Marchak v. Claridge Commons, Inc., 633 A.2d 531,
535 (N.J. 1993).
10
Tigg Corp. v. Dow Corning Corp., 822 F.2d 358,
362 (3d Cir. 1987).
11
Manahawkin Convalescent v. O’Neill, 85 A.3d 947,
958-59 (N.J. 2014) (internal quotations and citation omitted).
12
Id. at 959.
13
Wayne Land & Mineral Grp. LLC v. Del. River Basin
Comm’n Maya Van Rossum, 894 F.3d 509, 534 (3d Cir. 2018);
see also Michaels v. Brookchester, Inc., 140 A.2d 199, 204
(N.J. 1958) (“The trial judge correctly found the lease to be
ambiguous . . . . In those circumstances, it was proper to
submit the issue of the meaning of the contract to the jury as
one of fact.”).
8
until February 2016. If the federal contract was consummated
before that date, then National Credit owes a finder’s fee. If it
was consummated after, then National Credit does not.
The Agreement does not define any form of “to
consummate.” Both parties argue that the term “consummate”
is clear on its face, although they differ on what is clear about
it. Fed Cetera argues that, in the context of the Agreement,
“consummated” means “signed,” “formed,” or “executed,” and
asserts that National Credit consummated the second contract
when National Credit executed it with the government in 2014.
National Credit argues the opposite, asserting that the District
Court correctly found that “consummated” requires some
degree of performance of a contract.
New Jersey courts have not provided dispositive
guidance on the meaning of the term “consummate.” The cases
offer competing, context-specific definitions. The case most
cited by National Credit and the District Court is Todiss v.
Garruto, a New Jersey Superior Court Appellate Division
decision.14 Todiss concerned whether a broker was still owed
a commission from a seller even after a third-party buyer
backed out.15 The court in Todiss relied on the explicit
provision in the parties’ agreement that stated “the commission
was to be ‘contingent upon the transaction being consummated
and in the event that said transaction is not consummated then
and in that event no commission shall be payable to said
brokers.’”16 The court held that “[i]n common acceptation the
meaning of the transitive verb ‘consummate’ is ‘to bring to
14
112 A.2d 285 (N.J. Super. Ct. App. Div. 1955)
15
Id. at 286.
16
Id. at 289-90.
9
completion that which was intended or undertaken to be
done.’”17 Todiss concluded that, because the sale never took
place, the broker wasn’t owed a fee.18
This case, however, does not involve a sale of
something, and so Todiss is not entirely on point. A classical
contract is formed, and the legal duties attach, with offer,
acceptance and consideration, not upon the completion of some
sort of performance—except, of course, where acceptance is
communicated by performance.19 Fed Cetera’s position here,
then, is consistent with Todiss; what was arguably “brought to
completion” here was the negotiation and formation of the
federal contract.
Shortly after Todiss, the New Jersey Supreme Court
decided Klos v. Mobil Oil Co.20 Klos involved a question of
when a particular life-insurance policy became effective. The
Supreme Court held that when a plaintiff “mailed in his
completed [insurance] application, he accepted [the insurer’s]
offer and a contract for insurance was consummated with all of
the essential elements agreed upon.”21 The Supreme Court
unambiguously concluded that a contract was “consummated”
upon acceptance, without any performance necessary on any
party’s part. We cannot say then, that New Jersey law requires
17
Id. at 287.
18
Id. at 290.
19
See Restatement (Second) of Contracts § 54.
20
259 A.2d 889, 892 (N.J. 1969).
21
Id.10
some performance on a contract before it is consummated.22
Similarly, our Court and others have held in other
circumstances that a contract is consummated when formed.23
The next step is to look at the totality of the parties’
Agreement, to see whether the language and context make the
issue clearer. When the District Court undertook that analysis,
it read “consummate” in the Agreement to mean to “carr[y]
out.”24 In doing so, the District Court relied on Todiss, and also
understood Black’s Law Dictionary to be defining
“consummate” as “completed”; “fully accomplished.”25
22
See also Johnson & Johnson v. Charmley Drug Co.,
95 A.2d 391, 397 (N.J. 1953) (“An expression of assent that
modifies the substance of the tender . . . is yet not an acceptance
and does not consummate a contract.”); Gamble v. Connolly,
943 A.2d 202, 209 (N.J. Super. Ct. Civ. Div. 2007) [T]here was
a degree of acceptance on the part of Gamble and an agreement
was consummated . . . .”).
23
See Western Cartridge Co. v. Emmerson, 281 U.S.
511, 512 (1930) (“[S]ending written acceptance consummates
contracts of sale.”); F.A.R. Liquidating Co. v. Brownell, 209
F.2d 375, 379 (3d Cir. 1954) (assignment of patents
“consummated” upon deposit of an acceptance cable by a
certain time). The Truth in Lending Act, 15 U.S.C. § 1635(f),
uses the statutory phrase “consummation of the transaction,”
which we have interpreted to mean the date upon which the
parties formed a contract. See Smith v. Fid. Consumer Disc.
Co., 898 F.2d 896, 902-03 (3d Cir. 1990).
24
App. 9 (rephrasing the Agreement to read “If . . .
[National Credit] carries out a fee transaction, it shall pay Fed
Cetera” the finder’s fee).
25
Id. at 7.
11
The District Court then redefined the term “Fee
Transaction” in the Agreement. It used Black’s definition of
the word “transaction” to redefine the term, and held that “a
transaction is a noun that means ‘an action.’”26 The District
Court concluded that, because “consummate” means “to carry
out,” and a transaction “is a noun that means ‘an action,’” then
to “consummate a fee transaction” under the Agreement
“implies two separate actions at distinct times.”27 Using that
phrasing, the District Court concluded that the Agreement
“expressly contemplates a contract being awarded and then
later performed.”28
However, we believe that there are two difficulties
with the District Court’s analysis. The first is that the District
Court relied, in part, on the adjective definition of
“consummate,” not the verb definition. The difference is
relevant; the adjective form of consummate, pronounced “con-
sum-it,”29 carries a different meaning and different common
usage. A person who is “the consummate statesman,” or has
“consummate elegance,” is the fulfillment of an ideal;
complete and satisfied in all respects. Upon hearing something
is a “consummate contract,” a typical listener is more likely to
understand it as an archetypal contract, not a contract that has
been performed in some respect.
26
Id. at 9.
27
Id.
28
App. 10 (emphasis omitted).
29
Or “känsəmət” in the International Phonetic
Alphabet.
12
Looking at the correct Black’s definition—the verb
definition—makes it clearer that “consummate,” pronounced
“con-sum-ayt,”30 carries less emphasis on something being
fulfilled or fully completed. While the verb can still mean “to
bring to completion,” it can also mean “to achieve” or “to
perfect.” To “achieve” a contract suggests that a contract has
formed, not that a party started performance on a contract.
A second error poses a greater problem. After
defining “to consummate,” the District Court then used Black’s
to further define the “transaction” in “Fee Transaction” to
mean “a noun that means ‘an action.’”31 The District Court
used its definitions of “to consummate” and “transaction” to
conclude that a “consummated Fee Transaction” in the
Agreement implied two separate actions occurring at different
times.
But unlike “consummate,” “Fee Transaction” is a
defined term in the Agreement. The Black’s definition, or any
common use of the word “transaction,” is irrelevant. The
parties bargained for an explicit definition that supersedes any
others. The District Court erred by substituting its definition
for the parties’ own.
As the parties define it, a “Fee Transaction” means
“the consummation” or “subsequent consummation” of one of
the two listed types of debt collection contracts. In other
words, under the Agreement, National Credit owes a fee when
“a consummation [of a relevant contract] is consummated.”
While an awkward construction, the phrase’s meaning is no
30
Or “känsəmāt” in International Phonetic Alphabet.
31
App. 9.
13
less apparent than “an achievement is achieved” or “an
agreement is agreed upon.” None of those constructions imply
a two-step process, as the District Court read the Agreement to
require.
So evaluating the Agreement using the terminology
and word definitions outlined above, a Fee Transaction is
consummated when it is formed, not when performance has
begun. While it is conceivable that another contract might use
“consummate” in a way that refers to performance, both the
text of the Agreement and the actions of the parties indicate
that is not the case here. The Agreement states that any fee
“shall be due and payable until fees are no longer generated
from any and all Fee Transactions, within thirty (30) days after
each receipt during such period by Principal . . . of revenue.”32
Accordingly, the Agreement contemplates the ongoing
payment of the finder’s fee throughout the life of a relevant
contract every time National Credit received revenue from its
work on the contract. Because fees are owed only after a
contract is “consummated,” the Agreement cannot be using
“consummation” to mean “fully complete performance on the
contract.” This is consistent with National Credit’s own
behavior, which concedes Fed Cetera’s allegation that it
regularly paid the finder’s fee throughout the life of the first
contract—not at the completion of work on that contract.
This interpretation also comports with the parties’
business relationship under the Agreement as a practical
matter. The Agreement envisions that Fed Cetera’s—formerly
Net Gain’s—role is strictly that of a “[f]inder[]”: Its job is to
32
App. 27.
14
procure contracts for National Credit by making
“introduc[tions]” and “assisting . . . with negotiations,” but it
does not play any role in National Credit’s performance of
work under those contracts.33 Its only function is to facilitate
National Credit’s successful formation of contracts. Assuming
the parties are rational actors,34 the economics of the contract
are plausible only if Fed Cetera’s compensation turns on the
satisfactory completion of its function—not events, like
performance by National Credit, that post-date the only service
Fed Cetera performs and are outside of its control. If the
compensation provision were structured the way National
Credit contends, Fed Cetera could lose out on a commission,
to National Credit’s gain, simply because of gamesmanship by
National Credit or mere happenstance. If Fed Cetera helped
National Credit negotiate and form a contract with a third party
shortly before the end of the Agreement’s term, for example,
National Credit avoid paying Fed Cetera from simply by
delaying the start of its work for the third party, or because the
third party is slow to delegate work to National
Credit. Reading a contract to produce this sort of “absurd
result” is disfavored.35
The only way to understand “consummation” under
the Agreement in a manner consistent with New Jersey law,
33
App. 26.
34
See Holtham v. Lucas, No. A-3073-17T1, 2019 WL
2998225, at *1 (N.J. Super. Ct. App. Div. July 10, 2019)
(“[T]raditional contract law principles . . . are founded on the
premise that contracting parties are rational economic actors .
. . .”)
35
Woytas v. Greenwood Tree Experts, Inc., 206 A.3d
386, 392 (N.J. 2019).
15
the word definitions, context within the Agreement, the
parties’ own behavior, and their relationship as envisioned by
the Agreement, is to understand it to mean forming a qualifying
contract.36 Alternative readings would render other terms
superfluous or internally inconsistent and would not accord
with the parties’ own behavior.
III.
For the foregoing reasons, the decision of the District
Court will be reversed and the judgment on the pleadings in
favor of National Credit vacated. This matter will be remanded
for further proceedings consistent with this Opinion.
36
To underscore the weakness of National Credit’s
position, we note that even if we were to conclude that the
Agreement’s language is ambiguous, that would also require
us to reverse because, as explained above, the meaning of the
contract would become a fact question for a jury. See Wayne
Land & Mineral Grp. LLC, 894 F.3d at 534. Whatever
arguments one can make about the best reading of
“consummate” in the Agreement, the notion that it
unambiguously reflects National Credit’s proposed
interpretation is not plausible.
16