JKC Holding Co. v. Washington Sports Ventures, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JKC HOLDING COMPANY LLC, 
Plaintiff-Appellee,
v.
WASHINGTON SPORTS VENTURES,
INCORPORATED,
Defendant-Appellant,
and
WFI GROUP, INCORPORATED, formerly  No. 00-2511
known as Jack Kent Cooke,
Incorporated; THE ESTATE OF JACK
KENT COOKE,
Defendants-Appellees,
and
GREGORY R. DILLON; MARK POLLAK;
HOWARD B. SOLOWAY,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-00-35-A)
Argued: June 5, 2001
Decided: September 7, 2001
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and Irene M. KEELEY, Chief United States District Judge
for the Northern District of West Virginia,
sitting by designation.
2 JKC HOLDING v. WASHINGTON SPORTS VENTURES
Affirmed by published opinion. Chief Judge Keeley wrote the opin-
ion, in which Chief Judge Wilkinson and Judge Niemeyer joined.
COUNSEL
ARGUED: David Boies, BOIES, SCHILLER & FLEXNER, L.L.P.,
Armonk, New York, for Appellant. Paul J. Mode, Jr., WILMER,
CUTLER & PICKERING, Washington, D.C., for Appellees. ON
BRIEF: Alan B. Vickery, Christopher M. Green, BOIES, SCHIL-
LER & FLEXNER, L.L.P., Armonk, New York; Jonathan D. Schiller,
Carol J. Nichols, BOIES, SCHILLER & FLEXNER, L.L.P., Wash-
ington, D.C., for Appellant. David P. Donovan, Melanie D. Coates,
Laura B. Kotanchik, Joshua R. Stebbins, WILMER, CUTLER &
PICKERING, Washington, D.C.; Thomas C. Green, Mark D. Hopson,
Griffith L. Green, Kristin Graham Koehler, SIDLEY & AUSTIN,
Washington, D.C., for Appellees.
OPINION
KEELEY, Chief District Judge:
In this case we are asked to determine whether JKC Holding Com-
pany LLC ["JKC Holding"] engaged in wrongdoing to prevent the
sale of the Washington Redskins professional football team to Wash-
ington Sports Ventures, Inc. ["WSV"]. WSV failed in its attempt to
purchase the Redskins from the Estate of Jack Kent Cooke and
alleges a variety of claims, including breach of contract and fraudu-
lent inducement against JKC Holding. Because of the speculative
nature of the evidence on which WSV relies, we affirm the district
court’s grant of summary judgment to JKC Holding.
I.
At the time of his death in April 1997, Jack Kent Cooke held 90%
of the shares of JKC, Inc., which in turn owned the Washington Red-
skins, Jack Kent Cooke Stadium and the Redskins’ training facility in
Virginia. His son, John Cooke, Sr. ["Cooke"], owned the remaining
JKC HOLDING v. WASHINGTON SPORTS VENTURES 3
10% of the shares. Jack Kent Cooke’s will provided that his estate
["Estate"] was to sell his stock in JKC, Inc. and use the proceeds to
fund a charitable foundation benefitting underprivileged youth. Cooke
was one of the executors of the Estate, as well as a director of JKC,
Inc. and JKC Holding, which was formed for the purpose of selling
the team and its related assets. A Special Committee, consisting of all
of the JKC, Inc. directors except Cooke, was created to oversee the
sale. Cooke recused himself from sitting on the Special Committee
because he wished to bid on the team himself.
After a controlled auction for the stock, which began in September
1998 and ended in January 1999, the Special Committee accepted an
$800 million bid from WSV, a group of investors led by Howard P.
Milstein ["Milstein"], his brother Edward L. Milstein, and Daniel
Snyder ["Snyder"]. Cooke and his group of investors had offered the
second highest bid of $725 million.
On January 9 and January 10, 1999, representatives of the Special
Committee and WSV met to finalize the Stock Purchase Agreement
["Agreement"]. Prior to the exchange of signature pages, representa-
tives of the Special Committee advised WSV’s representatives that
Cooke was disappointed, upset and emotional over the pending sale
of the Redskins to WSV, but stated that they thought he would get
over his disappointment. WSV’s representatives have testified they
understood that Cooke was potentially hostile to WSV’s bid and that
the transaction could fail as a result. Importantly, the Special Commit-
tee gave WSV time to reconsider proceeding with the Agreement in
light of this information. Nevertheless, WSV decided to proceed, and
the signature pages were signed and exchanged on January 10, 1999.
The Agreement between the parties is 64 pages in length and teams
of lawyers participated in the negotiations of its terms. It conditioned
the sale of stock upon WSV obtaining the approval of the National
Football League ["NFL"] for its ownership of the Washington Red-
skins. The parties agreed to "consult and use commercially reasonable
efforts to make or obtain all Approvals as soon as is reasonably prac-
ticable after execution of this Agreement." Art. VII, §7.2.
Each party was contractually obliged to use its best efforts to
secure NFL approval for WSV. In addition, WSV was required to
4 JKC HOLDING v. WASHINGTON SPORTS VENTURES
provide a $30 million irrevocable letter of credit, which JKC Holding
could exercise if a "Deposit Forfeiture Event" occurred. Under the
Agreement, the following three conditions must exist for a "Deposit
Forfeiture Event" to occur: (1) the Agreement was terminated prior to
the closing date, in accordance with the termination provisions set
forth in Section 9.1 of the Agreement;1 (2) the Agreement was termi-
nated prior to WSV obtaining NFL approval to own the Redskins; and
(3) the NFL Commissioner did not advise JKC Holding in writing
that the reason WSV did not obtain NFL approval was solely due to
problems with JKC Holding’s capital structure. The closing date was
originally set for March 31, 1999, but this was later amended to April
14, 1999.
The NFL owners scheduled a vote on WSV’s proposed ownership
of the Washington Redskins on April 7, 1999. Eight negative votes
would prevent WSV from obtaining NFL approval, but it was aware
of only three. Shortly before the NFL owners were to vote, however,
WSV entered into a separate agreement with the NFL, negotiated by
Commissioner Paul Tagliabue and Finance Committee Chairman
Robert Kraft. According to this separate agreement, the NFL owners
agreed to pay WSV the amount of any loss (up to $30 million) that
it actually incurred with respect to the irrevocable letter of credit pro-
vided to JKC Holding under the Agreement, if WSV would voluntar-
ily withdraw its bid and agree not to sue the NFL over its application
and subsequent withdrawal. The NFL owners then voted to accept
1
Section 9.1 of the Agreement provides that "This Agreement may be
terminated and the Stock Purchase may be abandoned at any time prior
to the Closing Date: (a) by mutual written consent of Seller and Acqui-
ror; (b) by either Seller or Acquiror, if (i) the Stock Purchase shall not
have been consummated by 5:00 p.m. Eastern Time on the Termination
Date; provided, however, that the right to terminate this Agreement pur-
suant to Section 9(b)(i) shall not be available to any party whose failure
to fulfil any covenant or obligation under this Agreement has been the
cause of, or result in, the failure of the Closing to occur on or before such
date; . . . or (e) by Seller of Acquiror, if they are notified in writing by
the Commissioner that the NFL considered and voted upon the Stock
Purchase (and the other Transactions, if any, requiring NFL Approval)
at a meeting held in accordance with NFL Rules and that the NFL did
not approve of the Stock purchase (or any other such Transactions)."
Agreement, Art. IX. (emphasis in original).
JKC HOLDING v. WASHINGTON SPORTS VENTURES 5
WSV’s voluntary withdrawal from the approval process, and resolved
to approve the agreement with WSV on condition that a satisfactory
and enforceable final agreement be prepared encompassing such
terms.
Following the withdrawal of WSV’s bid, Cooke renewed his bid
for the Redskins, but the Special Committee again rejected it and, in
July 1999, sold the team to a group headed by Snyder, the Milsteins’
former minority partner, for $800 million.2
Pursuant to its agreement with WSV, JKC Holding demanded pay-
ment under the $30 million irrevocable letter of credit on January 5,
2000. It filed a declaratory judgment action against WSV to establish
its right to exercise the letter of credit, contending that all of the
requirements for a Deposit Forfeiture Event had occurred. WSV
counterclaimed against JKC Holding, WFI Group, Incorporated (for-
merly JKC, Inc.), the Estate of Jack Kent Cooke, and three individu-
als who were executors of the Estate, managers of JKC Holding and
formerly directors of JKC, Inc. [collectively "counterclaim defen-
dants"]. It did not sue Cooke in this action, although the record indi-
cates that WSV has filed a separate action against him elsewhere.
WSV alleged that the counterclaim defendants breached the Agree-
ment by failing to use their best efforts to cause the Estate, and specif-
ically Cooke, to support its proposed deal to purchase the Redskins,
and that they fraudulently induced WSV to enter into the Agreement
by representing that Cooke would not interfere in the approval pro-
cess. In its appeal, WSV has not challenged the district court’s earlier
dismissal of its breach of fiduciary duty, business conspiracy, and tor-
tious interference with business relations claims.
On October 26, 2000, the district court granted JKC Holding’s
motion for summary judgment on its declaratory judgment count and
dismissed WSV’s remaining counterclaims. The district court found
that WSV’s withdrawal from the NFL approval process amounted to
a repudiation of the Agreement and that WSV could not complain,
and no jury could find, that JKC Holding prevented WSV from gain-
2
As part of the sale, JKC Holding reimbursed Daniel Snyder his $10
million share of the irrevocable letter of credit.
6 JKC HOLDING v. WASHINGTON SPORTS VENTURES
ing NFL approval when it was WSV that prevented a vote from being
taken by withdrawing its application.
On appeal, WSV contends that the $30 million irrevocable letter of
credit agreed to by the parties is unenforceable as an illegal penalty
under New York law,3 and that JKC Holding caused WSV to with-
draw its application before the NFL approval process was completed.
WSV further argues that the district court erred in limiting the dam-
ages it could recover under the Agreement, and in granting summary
judgment on its fraudulent inducement claim.
II.
We review a grant of summary judgment de novo. Virtual Works,
Inc. v. Volkswagen Of Am., Inc., 238 F.3d 264, 269 (4th Cir. 2001).
Summary judgment is appropriate only if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affi-
davits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ. P. 56(c). The existence of an alleged factual dispute
between the parties will not defeat a properly supported motion for
summary judgment, unless the disputed fact is one that might affect
the outcome of the litigation. Hooven-Lewis v. Caldera, 249 F.3d 259,
265 (4th Cir. 2001). Mere speculation by the non-movant cannot
create a genuine issue of material fact. Cox v. County of Prince Wil-
liam, 249 F.3d 295, 299 (4th Cir. 2001). A material fact is one where
its existence or non-existence could result in a different jury verdict.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Any permissible inferences to be drawn from the underlying facts
must be viewed in the light most favorable to the party opposing the
motion. Matushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986). However, such inferences must "fall within
the range of reasonable probability and not be so tenuous as to
amount to speculation or conjecture." Thompson Everett, Inc. v.
National Cable Advert., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995).
3
The Agreement provides that it would be governed by and construed
in accordance with the laws of New York, without regard to any applica-
ble principles of conflicts of law. Art. X, § 10.10.
JKC HOLDING v. WASHINGTON SPORTS VENTURES 7
The function of the judge at the summary judgment stage is not to
determine the truth of a matter or to weigh credibility but to determine
whether there is any genuine issue of fact that can only properly be
resolved by a finder of fact because it could reasonably be resolved
in favor of either party. Anderson, 477 U.S. at 250. WSV and JKC
Holding waived their respective rights to a jury trial under the terms
of the Agreement,4 and we are cognizant that discovery had closed
and the district court was provided with thousands of pages of deposi-
tion transcripts and documents as part of the cross-motions for sum-
mary judgment. Consequently, although we still review the grant of
summary judgment de novo, as a practical matter, we recognize that
summary judgment may be particularly appropriate given the circum-
stances, because it is favored as a mechanism to secure the just,
speedy and inexpensive determination of a case, where its proper use
can avoid the cost of a trial. See Thompson Everett, 57 F.3d at 1322-
23 (quoting Fed.R.Civ.P. 1). "One of the principle purposes of the
summary judgment rule is to isolate and dispose of factually unsup-
ported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986).
III.
We first consider whether JKC Holding breached the Agreement
by failing to meet its contractual obligation to use its best efforts to
secure NFL approval for WSV. Under the terms of the Agreement,
JKC Holding is entitled to exercise the letter of credit unless it
breached the Agreement and such breach was the cause of WSV’s
failure to gain NFL approval.
Because we consider the facts in the light most favorable to the
non-movant, we must assume that Cooke acted improperly following
the announcement that the Special Committee had accepted WSV’s
bid. Even assuming that Cooke expressed his disappointment that his
bid had been rejected and refused to support WSV’s bid publicly, the
evidence does not support a finding either that JKC Holding, and the
other counterclaim defendants, violated the Agreement by failing to
take disciplinary action against Cooke, or that Cooke’s actions influ-
4
Art. X, §10.12.
8 JKC HOLDING v. WASHINGTON SPORTS VENTURES
enced the NFL owners so that it would have been futile for WSV to
proceed with the approval process.
Before WSV can prevail on its breach of contract counterclaim, it
must establish that its alleged damages would not have occurred but
for the alleged wrongful acts or omissions of the counterclaim defen-
dants. See Krofft Entertainment, Inc. v. CBS Songs, A Div. of CBS,
Inc., 653 F. Supp. 1530, 1534 (S.D.N.Y. 1987). Damages are limited
to those losses and pecuniary disappointments that are "caused by"
the breach. Id. (quoting Corbin on Contracts (1964)). "New York
contract law adheres to the rule that there can be no recovery where
the plaintiff fails to prove that his injury was caused by the defen-
dant’s breach." Id.
JKC Holding could not and did not guarantee that Cooke would
publicly support the sale of the Redskins to an entity outside of the
Cooke family. Proposed language in the Agreement that would have
committed JKC Holding to using its best efforts to cause its "direct
and indirect owners" to use their best efforts to get NFL approval was
replaced with language committing it, instead, to using its best efforts
to cause the "Companies and the Estate" to so act. Moreover, WSV’s
representatives knew Cooke was popular with the NFL owners but
chose to proceed with the Agreement, notwithstanding Cooke’s disap-
pointment at losing the Redskins, and despite being aware that this
could affect WSV’s ability to secure NFL approval.
The Special Committee discussed removing Cooke as an officer
and director but, with WSV’s assent, concluded that such a move
would be detrimental to the NFL approval process. Furthermore, the
Special Committee actively sought to persuade Cooke to support the
proposed sale because it was in all of their best interests to secure the
highest possible price for the team. Therefore, even viewing the evi-
dence in the light most favorable to WSV, we conclude that the coun-
terclaim defendants met their contractual "best efforts" obligations
and, consequently, did not breach the Agreement.
We also affirm the district court’s finding that it was WSV who
breached the Agreement by voluntarily withdrawing from the NFL
approval process. WSV contends that proceeding with the approval
process would have been futile because of an alleged conspiracy
JKC HOLDING v. WASHINGTON SPORTS VENTURES 9
between Cooke and other NFL team owners to reject Milstein,
WSV’s controlling partner, as an owner. There is simply insufficient
evidence from which the trier of fact could reasonably find for WSV
on this issue. Not only can WSV not establish how the NFL owners
would have voted had they been given the opportunity to do so, but
it also cannot show that the counterclaim defendants’ actions were the
proximate cause of the owners’ concerns about Milstein and WSV.
Those NFL owners who were deposed testified that Cooke was "ir-
relevant" and a "non-factor" in the approval process, and they refused
to concede that proceeding to a vote would have been futile. Rather,
the evidence establishes that the owners had grave reservations both
about the illiquidity of WSV’s financing and also Milstein’s charac-
ter. Specifically, they were concerned about: (1) the highly-leveraged
nature of the proposed financing transaction and the unprecedented
high level of debt involved; (2) the relatively illiquid family real
estate partnerships comprising a large part of Milstein’s wealth; (3)
Milstein’s authority (or lack thereof) to sell family assets and hold-
ings; (4) the non-responsive and misleading responses Milstein gave
to NFL inquiries into his finances; (5) Milstein’s record of litigious-
ness and his questionable conduct in prior litigation; (6) his perceived
mismanagement of the New York Islanders; (7) his treatment of his
minority partners when bidding on the Cleveland Browns; (8) WSV’s
political public relations lobbying campaign; and (9) the possibility
that Milstein would seek to reverse important NFL policies on licens-
ing and revenue-sharing.
WSV’s contention that Cooke somehow sabotaged the approval
process or conspired with other NFL owners to secure his purchase
of the team is belied by the ultimate sale of the team to Snyder, Mil-
stein’s former partner at WSV. That sale strongly suggests that the
difficulties WSV encountered in seeking NFL approval stemmed
from concerns about Milstein himself and were not caused by Cooke
or the counterclaim defendants.
No reasonable finder of fact could infer from the evidence pre-
sented either that proceeding with the approval process would have
been futile or that the owners’ misgivings about Milstein’s qualifica-
tions to be an NFL owner were proximately caused by or linked to
the counterclaim defendants. WSV’s failure to secure NFL approval
10 JKC HOLDING v. WASHINGTON SPORTS VENTURES
was not the result of any wrongdoing on the part of the seller. On the
contrary, its decision to withdraw voluntarily from the process and
enter into a separate deal with the NFL appears to have been moti-
vated by a desire to protect itself from the anticipated loss of its $30
million irrevocable letter of credit.5
IV.
WSV next argues that if JKC Holding is entitled to exercise the
$30 million letter of credit pursuant to the terms of the Agreement,
the deposit constitutes an unenforceable penalty under New York law
and should be struck from the Agreement. WSV correctly notes that
the district court misapplied the legal test, under New York law, for
considering the validity of the provision. However, the $30 million
deposit passes muster even under the proper two-prong inquiry set
forth in Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 361
N.E.2d 1015 (N.Y. 1977):
The rule is now well-established. A contractual provision
fixing damages in the event of a breach will be sustained if
the amount liquidated bears a reasonable proportion to the
probable loss and the amount of actual loss is incapable or
difficult of precise estimation. If, however, the amount fixed
is plainly or grossly disproportionate to the probable loss,
the provision calls for a penalty and will not be enforced.
Id. at 1018.
In interpreting a provision fixing damages, it is immaterial what the
parties choose to call the provision. Id. Furthermore, "the agreement
should be interpreted as of the date of its making and not as of the
date of its breach." Id. at 1019. See generally X.L.O. Concrete Corp.
v. John T. Brady & Co., 482 N.Y.S.2d 476, 478-79 (App. Div. 1984)
(summarizing the principles by which liquidated damages clauses are
evaluated). New York law permits the use of liquidated damages
5
In light of our ruling that JKC Holding did not breach the contract,
we need not consider WSV’s claim that the district court erred in holding
that it was precluded from recovering damages other than its out-of-
pocket expenditures in the event of a breach under the Agreement.
JKC HOLDING v. WASHINGTON SPORTS VENTURES 11
clauses in contracts and provides that the validity of such clauses is
a question of law to be determined by the court. Brecher v. Laikin,
430 F. Supp. 103, 106 (S.D.N.Y. 1977) (citing Mosler Safe Co. v.
Maiden Lane Safe Deposit Co., 93 N.E. 81 (N.Y. 1910)).
The district court correctly concluded that the $30 million irrevoca-
ble letter of credit provided to JKC Holding by WSV on January 13,
1999 bore a reasonable proportion to the probable loss. This amount
represents only 3.75% of the total purchase price and is less than half
of the $75 million difference between WSV’s bid and the next highest
bid. See e.g., Brazen v. Bell Atlantic Corp., 695 A.2d 43 (Del. 1997)
(upholding reasonableness of a $550 million liquidated damages pro-
vision in merger agreement where sum represented only 2% of one
corporation’s market capitalization).
Furthermore, when the parties entered into their Agreement, the
amount of the actual loss in the event WSV’s bid to buy the Washing-
ton Redskins failed was incapable of precise estimation. Morgan
Stanley, the investment bank which oversaw the controlled auction,
advised the Special Committee that if the bid failed the value of the
shares would likely decrease and potential buyers could lose interest,
thus resulting in a lower sale price, as well as added transaction and
administrative costs. The Special Committee requested the letter of
credit as an incentive to insure that WSV did not suffer buyer’s
remorse but used its best efforts to secure NFL approval.
Liquidated damages provisions are based on the principle of just
compensation and may not be used to reap a windfall or to secure per-
formance by the compulsion of disproportion. In re: Coastline Steel
Prod., Inc., 402 N.Y.S.2d 947, 950 (Sup. Ct. 1978). Given the quality
and quantity of lawyers working on its behalf, the sophistication of
the parties and the parity of their bargaining power, WSV’s claims
that this provision is illegal and was imposed on them in terrorem is
unsubstantiated by the evidence and defies commonsense.
Accordingly, JKC Holding is entitled to exercise the letter of credit
because it neither breached the Agreement nor caused the NFL’s fail-
ure to approve WSV within the time period provided. Furthermore,
the $30 million irrevocable letter of credit is an enforceable liquidated
damages provision under New York law because the damages flow-
12 JKC HOLDING v. WASHINGTON SPORTS VENTURES
ing from the failure of WSV’s bid were difficult to ascertain at the
time the parties entered into the Agreement, and the amount of dam-
ages is not plainly disproportionate to the injury.
V.
Finally, we turn to WSV’s contention that the district court erred
in deciding that there was no evidence upon which a reasonable fact-
finder could conclude that JKC Holding’s representatives misrepre-
sented material facts during the contract negotiations. Given their
later testimony that they had no idea what Cooke would do at that
time, WSV argues that these representatives misled it about Cooke’s
present state of mind when they reported they were sure he would get
over his disappointment and would live up to his agreements. WSV
further alleges that the seller’s representatives fraudulently omitted
material facts by not fully disclosing all of the information given to
them by NFL staff, such as the NFL wanting to see Cooke’s bid,
whether or not it was selected.
"The elements of common law fraud are a material, false represen-
tation, an intent to defraud thereby, and reasonable reliance on the
representation, causing damage to the plaintiff." Katara v. D.E. Jones
Commodities, Inc., 835 F.2d 966, 970-71 (2nd Cir. 1987). Each ele-
ment must be established by clear and convincing evidence. Id. at
971. See also Jo Ann Homes at Bellmore, Inc. v. Dworetz, 250 N.E.2d
214, 217 (N.Y. 1969) (listing the five elements of fraudulent misrep-
resentation as "a representation of fact, which is either untrue or reck-
lessly made, and which is offered to deceive the other party and to
induce them to act upon it, causing injury.").
WSV’s claims fail as a matter of law because JKC Holding’s repre-
sentatives were merely reporting what they had been told about
Cooke’s reaction. Their comments were opinions and predictions of
what they hoped or anticipated would happen, not statements of mate-
rial fact. See Plautus Corp. Pension Plan v. Nazareth, 705 N.Y.S.2d
649, 650 (App. Div. 2000) ("The rule is that a representation of opin-
ion or a prediction of something which is hoped or expected to occur
in the future will not sustain an action for fraud."); Chase Inv., Ltd.
v. Kent, 681 N.Y.S.2d 319, 320 (App. Div. 1998) (same). Moreover,
WSV was given the opportunity to walk away from the proposed deal
JKC HOLDING v. WASHINGTON SPORTS VENTURES 13
in light of the information. Instead, it chose to proceed and thereby
assumed the risk of the "Cooke" factor. WSV’s own representatives
testified that they were aware that Cooke’s opposition to the deal
could make it harder for WSV to secure NFL approval. A knowing
misrepresentation is a fundamental and essential element of a cause
of action for fraud, Marine Midland Bank v. John E. Russo Produce
Co., 405 N.E.2d 205 (N.Y. 1980), and there was no such knowing
misrepresentation here.
WSV’s fraud by omission claim also fails under New York law,
which recognizes that a party to a business deal has a duty to speak
in only the following three situations:
[F]irst, where the party has made a partial or ambiguous
statement, on the theory that once a party has undertaken to
mention a relevant fact to the other party it cannot give only
half of the truth; second, when the parties stand in a fidu-
ciary or confidential relationship with each other; and third,
where one party possesses superior knowledge not readily
available to the other, and knows that the other is acting on
the basis of mistaken knowledge.
Brass v. American Films Tech. Inc., 987 F.2d 142, 150 (2nd Cir.
1993) (internal citations omitted). None of these situations exists here.
The parties were not in a confidential or fiduciary relationship. JKC
Holding disputes that it had superior knowledge. However, even
assuming that it did, there is no evidence either that WSV would not
have entered into the Agreement had it known that the NFL wished
to see Cooke’s bid, or that JKC Holding was aware that WSV was
acting on the basis of mistaken knowledge.
Milstein had previously bid on the Cleveland Browns and was
familiar with the process of bidding on and purchasing professional
sports teams. One of his representatives in the final negotiations with
JKC Holding was David Seldin, the former president of the Jackson-
ville Jaguars. Seldin testified that he was aware of the impact that
Cooke would have on the NFL approval process and that the deal
could fail if he opposed it. Consequently, we affirm the district
court’s ruling because WSV has failed to raise a triable issue of fact
as to whether there was fraud in the inducement.
14 JKC HOLDING v. WASHINGTON SPORTS VENTURES
VI.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.