Armenian Assembly of America v. Gerard Cafesjian

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 2014 Decided July 15, 2014
No. 11-7048
ARMENIAN ASSEMBLY OF AMERICA, INC., ET AL.
APPELLANTS
v.
GERARD L. CAFESJIAN, ET AL.,
APPELLEES
Consolidated with 11-7049, 11-7054, 11-7055, 11-7056,
11-7057, 11-7110, 11-7111, 11-7112, 13-7050, 13-7051
Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cv-01259)
(No. 1:08-cv-00255)
(No. 1:08-cv-01254)
William S. Consovoy argued the cause for
appellants/cross-appellees. With him on the briefs were
Brendan J. Morrissey, Helgi C. Walker, and Richard I.
Chaifetz.
John B. Williams argued the cause and filed the briefs for
appellees/cross-appellants.
2
Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,
and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Nearly a century ago, around
the start of the First World War, the Ottoman Turkish
government engaged in a years-long conflict with its
Armenian population. According to the parties to these
appeals, this is “the single most resonant occurrence in
modern Armenian culture,” in which “approximately one and
a half million Armenians were killed and hundreds of
thousands were deported and forcibly converted” in what they
refer to as the “Armenian Genocide.” Joint Appendix
(“J.A.”) 237 (Joint Pretrial Statement ¶¶ 13-14). 1 Far more
recently, beginning in the 1990s, a coalition of dedicated
individuals came together to create an “Armenian Genocide
Museum” here in Washington, D.C. This litigation springs
from their efforts—or, more accurately, the unraveling of
their efforts—to bring that vision to life.
The venture began successfully enough. Buoyed with
enthusiasm, the architects behind the project set to work.
They secured sizeable funding contributions, and they formed
a nonprofit corporation, the Armenian Genocide Museum and
Memorial (“AGM&M”). They also agreed on and purchased
a historic building for the museum’s site, just a few blocks
from the White House. But as the years wore on, they were
unable to agree on much else. Progress staggered. Tensions
1
We are well aware of the longstanding dispute in the global
community about the characterization of these events, particularly
the use of the term “genocide.” As they did in the court below, the
parties all use that label; we endorse no view ourselves.
3
mounted. Little true headway was made. Eventually, one of
the project’s principal founders and benefactors, the late
Gerard Cafesjian, chose to part ways with the group and
resigned his post as President of AGM&M. 2 The split was far
from amicable. And so began a chain of events culminating
in this tangle of litigation.
After several years of legal wrangling, the parties’ claims
ultimately proceeded to a bench trial before the District Court.
Save for a single cause of action, all of the claims were found
unproven. Post-trial proceedings ensued on a multitude of
issues, and, after many of the District Court’s decisions were
appealed on a piecemeal basis, the assorted cases on appeal
were consolidated and presented to us for resolution.
Disagreeing with the parties’ challenges to the rulings below,
we affirm the District Court on all accounts.
I.
The factual backdrop surrounding these appeals is, to put
things mildly, lengthy. The District Court’s findings of fact
alone span nearly seventy-five pages in the Federal
Supplement. See Armenian Assembly of Am., Inc. v.
Cafesjian, 772 F. Supp. 2d 20, 28-102 (D.D.C. 2011).
Hoping to keep things a bit more simple, we recount only the
facts relevant to our disposition and otherwise commend the
interested reader to the District Court’s able and thorough
synopsis of this dispute’s history. 3
2
Cafesjian passed away during the pendency of these proceedings,
in September 2013. Per Federal Rule of Appellate Procedure
43(a)(1), we allowed the substitution of Kathleen Baradaran,
Cafesjian’s personal representative, in his stead.
3
Unless specifically denoted by a citation to the Joint Appendix,
we draw record support for our factual statements from the District
Court’s findings of fact.
4
A.
In the mid- to late-1990s, several individuals resolved to
coordinate their efforts to create an Armenian Genocide
Museum.
One of the groups behind these efforts was the Armenian
Assembly of America (the “Assembly”). Founded as a
charitable, nonprofit organization, the Assembly advocates
for and educates the public about Armenian issues in the
United States. Over the years, many have been involved with
the Assembly’s leadership and work, but only a few names
are relevant to the issues we confront in this dispute. Hirair
Hovnanian is one of the Assembly’s founders and has served
as the chairman of its board of trustees since the 1970s;
Robert Kaloosdian is another founder of the Assembly and
has served as a long-time trustee on its board; and Anoush
Mathevosian is an Armenian-American philanthropist who,
over the years, has dedicated a wealth of her time and money
to the Assembly’s work, including as a trustee herself. These
folks were all involved, in some way or another, with the
Assembly’s early efforts in creating a museum.
During this same period, Cafesjian was independently
planning a similar endeavor: the construction of a memorial
dedicated to the victims and survivors of the “Armenian
Genocide,” though not necessarily to be built in Washington,
D.C. He and John Waters, Jr.—Cafesjian’s “right-hand
man”—channeled their work on this project through the
Cafesjian Family Foundation (“CFF”), a charitable
organization founded by Cafesjian and his family. As luck
would have it, the two groups discovered the other’s plans,
and they arranged to meet to discuss the possibility of a
combined museum and memorial. Not long after, Cafesjian
5
and Waters officially joined the Assembly as trustees,
although they continued to search separately for a potential
site for the memorial. That is, until the Assembly came upon
a prime location for the project in the heart of D.C.: the
National Bank of Washington Building (“Bank Building”).
The Bank Building sits at the corner of 14th and G
Streets N.W., practically a stone’s throw from the White
House. It is designated as a historic District of Columbia
landmark, both by the National Register of Historic Places
and the D.C. Inventory of Historic Sites. 4 The Assembly
reached out to Cafesjian about the Bank Building, and
Cafesjian was extremely interested. He quickly dispatched
Waters to conduct the necessary due diligence on the
property, and the group as a whole decided to move forward,
agreeing to develop the site as a consolidated museum and
memorial. Cafesjian donated $3.5 million to the Assembly to
help acquire the Bank Building, and Mathevosian also
pledged $3.5 million for its purchase. Because Mathevosian
could not access her share of the funds by the closing date,
however, Cafesjian (largely through CFF) floated the
Assembly an interest-free bridge loan of $4 million to ensure
the deal could go through. The Assembly closed on the Bank
Building in February 2000, for a purchase price of $7.25
million. Upon receipt of Mathevosian’s pledge, the Assembly
repaid $3.5 million to CFF in March 2000 and executed an
interest-free promissory note to CFF for the remaining
$500,000, originally payable in May 2000.
4
The property is also known as the “Federal-American National
Bank” and the “Hamilton National Bank.” See U.S. Dep’t of
Interior, National Park Service, National Register of Historic
Places Registration Form (Nov. 23, 1994), available at
http://pdfhost.focus.nps.gov/docs/NRHP/Text/94001517.pdf (last
visited July 14, 2014) (describing the property and its historical
architecture and elements).
6
The Bank Building, as it turns out, would not be the only
property set aside for the project’s development. Following
the Assembly’s purchase of the Bank Building, Cafesjian
began to acquire additional properties along G Street,
adjacent to the Bank Building. Between March 2000 and
September 2003, Cafesjian—through one of his other
companies, TomKat Limited Partnership—purchased four
additional properties, located at 1334-36, 1338, 1340, and
1342 G Street N.W. (“Adjacent Properties”). All these
properties were paid for in full at closing, with the exception
of 1340 G Street, which was payable by installment contract;
after the deal closed in March 2001, regular, annual payments
on that property were to be made, with a final balloon
payment due at the end of ten years. Originally, Cafesjian
bought these properties with an eye toward using them for a
contemporary art museum, but after that concept was
abandoned, Cafesjian decided to donate the properties to the
Assembly to expand the footprint of the museum effort.
Having lined up a site for the project, the Assembly set to
work to bring the concept to life. Initially, this work was
spearheaded by a planning committee formed within the
Assembly, but, as the District Court noted, the committee
“was a somewhat fluid body,” with about a dozen different
individuals involved at one point or another. Armenian
Assembly of Am., 772 F. Supp. 2d at 36. With so many cooks
in the kitchen, suffice it to say that the formation of the
planning committee was not a recipe for success. After much
talk and little action over the next several years, the
Assembly’s board ultimately decided to create an independent
entity to focus on the museum’s development. Thus was born
AGM&M.
7
AGM&M was incorporated as a District of Columbia
not-for-profit corporation in October 2003. Under the articles
of incorporation and bylaws, control of AGM&M was vested
in a board of trustees, initially composed of Cafesjian
(representing CFF), Kaloosdian (representing the Assembly),
Hovnanian, and Mathevosian. By way of a unanimous
written consent agreement signed at AGM&M’s inception, all
four trustees agreed to appoint Cafesjian as Chairman and
President of AGM&M, Hovnanian as Vice Chairman, and
Waters as Secretary and Treasurer. AGM&M’s mission
would be focused exclusively on the development and
creation of the museum and memorial project.
Because Cafesjian agreed to route his donations to
AGM&M through the Assembly, the parties set up a legal
two-step. First, Cafesjian and CFF entered into a grant
agreement with the Assembly (“Grant Agreement”),
memorializing the terms of their gifts to the Assembly;
second, the Assembly then agreed to transfer to AGM&M all
of its museum-related assets and obligations, including the
Bank Building and the Adjacent Properties, through a
separate transfer agreement.
One part of the Grant Agreement—a provision the parties
consistently refer to as a “reversion clause”—plays a central
role in this litigation. It reads as follows:
If the Grant Property is not developed prior to
December 31, 2010[,] in accordance with the Plans, or
if the Grant Property is not developed in substantial
compliance with the Plans including with respect to
the deadlines for completion of the construction,
renovation, installation and other phases detailed in
the Plans, then:
8
(i) in the event any portion of the Grants has
not been funded, this Agreement
terminates; and
(ii) to the degree any portion of the Grants has
been funded, at the Grantor’s sole
discretion, the Assembly shall return to the
Grantor the Grant funds or transfer to the
Grantor the Grant Property.
J.A. 463 (§ 3.1(B)). The capitalized terms “Grantor,”
“Grants,” and “Grant Property” are all specifically defined
elsewhere in the Grant Agreement. “Grantor” is defined as
Cafesjian and CFF, together. J.A. 461. The “Grants” are
made up of the “First Grant” and the “Second Grant,” which
are defined, respectively, as (1) the share of funds contributed
by CFF for the Bank Building’s purchase (and an additional
amount to be used for the installation of a memorial), and (2)
the funds contributed by CFF and Cafesjian to acquire the
Adjacent Properties. J.A. 461-63 (§§ 1.1-1.3, 2.1-2.3).
Further, “Grant Property” is defined as the combination of the
“First Grant Property” and the “Second Grant Property,”
terms themselves defined as the Bank Building and the
Adjacent Properties, respectively. J.A. 461-63 (§§ 1.2, 2.2,
3.1(A)). The “Plans” described in this provision refer to
design plans for the project as approved by the AGM&M
board at some point in the future. 5
5
The Grant Agreement also required the Assembly to reissue a
$500,000, interest-free promissory note to replace the previous note
issued to CFF. It designated the maturity date on the note as
December 31, 2005. J.A. 467 (§ 5.4(B)). The promissory note was
to be transferred to AGM&M, along with all other museum-related
assets and liabilities.
9
With the newly formed AGM&M at the reins, the group
was infused with a renewed sense of hope that the museum
project would finally get off the ground. But as the old
French proverb goes, sometimes, the more things change, the
more they stay the same.
Though AGM&M’s board of trustees convened several
meetings to develop an action plan for moving forward,
consensus was an elusive target. They considered hiring an
executive director and even received resumes from several
qualified candidates, but they never moved forward with
interviews, albeit in part due to a sense that AGM&M lacked
the funds needed to create the position. The board also tried
to begin selecting an architect for the project, but they could
not even agree on the process to select an architect, let alone
the actual architect. The board did agree to hire, on a four-
month trial basis, a consultant to develop a business plan for
the project, but her plan met with disapproval, and her
relationship with AGM&M was not renewed. All the while,
amid this general atmosphere of inaction, AGM&M was
facing financial difficulties. Most of its funding contributions
were tied up in the real estate acquisitions, and the carrying
costs of the properties and other basic operating expenses
were draining AGM&M’s coffers. Despite these fiscal
challenges, the organization had no real fundraising initiatives
underway at the time.
Around this period, tensions began to mount between
Cafesjian and Hovnanian, amplified by a variety of issues that
surfaced between the two. The gritty details are beyond the
scope of this opinion. For our purposes, we can fast forward
to 2006, when Cafesjian concluded that his differences with
Hovnanian had become irreconcilable. After failed efforts to
reach an agreeable transition plan and a mutually acceptable
distribution of the museum-related properties, Cafesjian sent a
10
letter to the AGM&M trustees in September 2006,
announcing his resignation as Chairman and President of
AGM&M effective immediately; he also communicated that
Waters would resign as Secretary and Treasurer (that
resignation became effective about a month later). 6
In the wake of the late-2006 shake-up, AGM&M
reconstituted its leadership, effectively transferring control to
the leadership of the Assembly. Work on the museum
resumed—at least for a stint. The board of trustees created a
“building and operations committee” to assume responsibility
for the planning of and fundraising for the museum. And the
committee made some tangible progress. It retained project-
design and architecture firms to develop a “master planning
document,” and those plans were completed in October 2007.
At that point, AGM&M anticipated the museum would open
by April 2010. The committee also obtained an adjustment
from the D.C. Board of Zoning Adjustments, to allow for the
construction of an annex on a vacant section of the Bank
Building plot, and it was able to secure preliminary approval
of the museum’s design from the D.C. Historical Preservation
Review Board in March 2008. In early 2008, the committee
even selected a general contractor for the museum’s
construction. In short, as the District Court found,
AGM&M’s building and operations committee “worked
furiously through late 2007 and early 2008.” Armenian
Assembly of Am., 772 F. Supp. 2d at 99.
But by March 2008, it became clear that AGM&M was
facing substantial fundraising problems. In mid-2008, the
committee put the project on hold while they sought
additional ways to raise money. They pursued fundraising
6
Cafesjian would remain on the trustee board until May 2007, and
Waters until March 2009.
11
contributions from donors to keep the project going, but to no
avail. These fundraising difficulties, the District Court found,
were due in substantial part to ongoing litigation implicating
the museum project. Id. at 101 (“The Assembly tried to
solicit major donors for large contributions to keep the
museum project going forward, but the dispute with Cafesjian
had somewhat poisoned the donor well.”); id. at 116 (“[T]he
ongoing litigation may have dampened donor enthusiasm for
the project.”). 7 Ultimately, in 2009, AGM&M ran out of
funds entirely and could not continue to pay its contractors,
resulting in liens being filed.
The museum never moved beyond the design stage. And
with the project stalled altogether, the parties’ focus shifted
almost entirely to this litigation, the history of which we turn
our attention to next.
B.
Cafesjian and CFF filed the first lawsuit in April 2007,
suing the Assembly in the U.S. District Court for the District
of Minnesota. They alleged that the Assembly had failed to
reissue the $500,000 promissory note as required by the Grant
Agreement, asserting claims for breach of contract and breach
of the implied covenant of good faith and fair dealing. The
7
Another fundraising approach the committee pursued was
attempting to lease space in one of the Adjacent Properties—the
“Families USA building” located at 1334-36 G Street N.W. Unable
to secure any interest from potential third-party tenants, AGM&M
finally opted to enter into a lease with the Assembly, which moved
into the space in May 2009. The original term of that lease expired
on December 31, 2010, but the arrangement was subject to an
automatic, five-year renewal period absent either party’s notice of
termination. J.A. 769-810. The validity of this lease is one of the
issues we are asked to decide through these appeals.
12
complaint sought damages of $500,000, as well as rescission
of the Grant Agreement and restitution of all grants and
donations made therein.
AGM&M responded in kind. Two months later, in June
2007, AGM&M filed suit against CFF in the Superior Court
of the District of Columbia, seeking to quiet title to the
museum-related properties; that case was removed to federal
court. Then, in September 2007, CFF brought a separate
lawsuit against AGM&M and its trustees in U.S. District
Court for the District of Columbia, seeking to enjoin any
further development of the museum without input from CFF.
That same month, AGM&M and the Assembly demanded
arbitration based on a clause in the transfer agreement, and
that move prompted Cafesjian, Waters, CFF, and TomKat to
file another lawsuit in the Minnesota District Court to enjoin
the arbitration proceedings, on the basis that they were not
parties to the transfer agreement. Cafesjian, Waters, CFF,
and TomKat next filed an action in the Minnesota District
Court on February 14, 2008, seeking declaratory relief against
AGM&M and the Assembly, and that case was subsequently
transferred to the D.C. District Court. On February 15,
2008—one day after the prior lawsuit hit the docket—
AGM&M and the Assembly brought yet another case in D.C.
District Court against Cafesjian, Waters, and CFF; several
months later, in July 2008, Cafesjian, Waters, and CFF
asserted, in that same case, several counterclaims against
AGM&M and the Assembly. Of these six—count them,
six—separate lawsuits, several were dismissed. The original
lawsuit filed in April 2007 was dismissed by the Minnesota
District Court for failure to join AGM&M as a necessary
party; the October 2007 lawsuit filed in Minnesota District
Court was eventually dismissed by stipulation of the parties;
and the parties also stipulated to the dismissal of the lawsuit
that was filed in D.C. District Court in September 2007. This
13
left three cases that were consolidated before the District
Court below. 8
The remaining cases ultimately proceeded to a bench trial
in November 2010. Plaintiffs AGM&M and the Assembly
(“Appellants” here) pressed four claims: (1) that Cafesjian
and Waters, through a variety of misconduct, breached their
fiduciary duties as trustees and officers of AGM&M; (2) that
Cafesjian and Waters breached their fiduciary duties as
trustees of the Assembly; (3) that Cafesjian breached the duty
of good faith and fair dealing implicit in the Grant Agreement
with the Assembly, both by mismanaging the museum project
and by obstructing progress on the museum after resigning;
and (4) that Cafesjian and Waters misappropriated the
Assembly’s trade secrets. They also sought a declaratory
judgment deeming the Grant Agreement’s reversion clause
unenforceable and quieting title to the properties. Defendants
Cafesjian, Waters, and CFF (here, “Appellees”) asserted
counterclaims against AGM&M and the Assembly, generally
claiming breaches of the Grant Agreement and the transfer
agreement, including by failing to reissue and repay the
promissory note, by excluding CFF from the planning
process, and more. Relatedly, they argued that AGM&M’s
lease of space to the Assembly was a breach of its contractual
obligations under the Grant Agreement to use the Adjacent
Properties only “as part of” the museum project. Finally,
Cafesjian and Waters sought indemnification from AGM&M
under the bylaws for costs expended in defending against its
claims for breach of fiduciary duty.
8
During the pendency of these proceedings, Cafesjian arranged for
a lis pendens to be recorded with the D.C. Recorder of Deeds to
serve as notice of the ongoing litigation concerning the museum-
related properties. See J.A. 615-17.
14
In January 2011, the District Court issued its Findings of
Fact and Conclusions of Law. Save for one set of claims, the
District Court concluded that neither side proved the merit of
its claims. The sole exception was Cafesjian’s and Waters’
claims for indemnification as against AGM&M, which the
District Court found meritorious. See Armenian Assembly of
Am., 772 F. Supp. 2d at 102-27. The District Court also ruled
that the reversion clause in the Grant Agreement was valid
and enforceable, though it requested further briefing on the
precise contours of the resulting property transfer. Id. at 121-
22, 127. The court further found that AGM&M validly
entered into the lease of the Families USA building with the
Assembly. Id. at 125-26. Finally, the District Court
concluded that AGM&M had wrongly excluded CFF as a
trustee and thus ordered that CFF was entitled to appoint a
representative to the AGM&M board. Id. at 128-29.
Subsequently, AGM&M and the Assembly filed a
motion seeking a new trial, based on the trial judge’s
supposedly undisclosed bias toward Cafesjian. The motion
was principally based on the theory that the judge was
incapable of being impartial because she and Cafesjian (along
with several other donors) made a gift to the Metropolitan
Museum of Art years prior, and because she and Cafesjian
supposedly shared an interest in fine glass art. The District
Court denied that motion in a published opinion. Armenian
Assembly of Am. v. Cafesjian, 783 F. Supp. 2d 78 (D.D.C.
2011). The same date, the District Court issued a separate
opinion concluding that, under the reversion clause, CFF was
entitled to transfer of the properties in their entirety, without
any setoff amount owed to AGM&M; that decision also
reaffirmed the indemnification ruling in the face of renewed
challenges by AGM&M, though the court referred the matter
to a Magistrate Judge for a recommendation as to the specific
15
amount of the award. Armenian Assembly of Am. v.
Cafesjian, 772 F. Supp. 2d 129 (D.D.C. 2011).
As the dispute began to make its way into our hands on
appeal, a few additional developments followed at the trial
level. In September 2011, the District Court concluded that
the Assembly’s lease in the Families USA building remained
valid even after transfer of the property to CFF under the
reversion clause. Armenian Assembly of Am. v. Cafesjian,
811 F. Supp. 2d 120 (D.D.C. 2011). Subsequently, the
Magistrate Judge issued a Report and Recommendation on
the indemnification issue, and after evaluating several
objections, the District Judge adopted that recommendation
with minor adjustments in February 2013. Armenian
Assembly of Am. v. Cafesjian, 924 F. Supp. 2d 204 (D.D.C.
2013) (awarding Cafesjian and Waters about $1.45 million in
fees, plus post-judgment interest). Finally, the District Court
denied a second motion for new trial filed by AGM&M and
the Assembly, disagreeing that a newly filed lawsuit by
Waters against Cafesjian merited another trial in the instant
dispute. Armenian Assembly of Am. v. Cafesjian, 924 F.
Supp. 2d 183 (D.D.C. 2013).
The parties timely appealed many of the District Court’s
rulings, and we consolidated the cases for our review. The
moving parts in these consolidated appeals are myriad, but, as
best we can distill things, there are five principal issues we
must tackle: (1) the disposition of Appellants’ claims for
breach of fiduciary duty against Cafesjian and Waters; (2) the
enforcement of the Grant Agreement’s reversion clause,
pursuant to which CFF took full title to the Bank Building
and the Adjacent Properties; (3) the indemnification of
Cafesjian and Waters and the associated award; (4) the denial
of Appellants’ post-trial motions for relief; and (5) the
validity of the Assembly’s lease in the Families USA
16
building. In the sections that follow, we take each issue in
turn.
II.
We first examine Appellants’ claims against Cafesjian
and Waters for breach of fiduciary duty. On this issue, we
review the District Court’s legal determinations de novo and
its findings of fact for clear error. Gov’t of Rwanda v.
Johnson, 409 F.3d 368, 372 (D.C. Cir. 2005).
At the outset, all agree that, because both AGM&M and
the Assembly are District of Columbia nonprofits, District of
Columbia law governs these claims. See RESTATEMENT
(SECOND) OF CONFLICTS OF LAW § 309; cf. Weiss v. Kay
Jewelry Stores, Inc., 470 F.2d 1259, 1268 (D.C. Cir. 1972).
Under District law, it is well settled that a nonprofit
corporation’s directors and officers owe fiduciary duties to
the organization, just the same as with any corporation.
Willens v. 2720 Wis. Ave. Coop. Ass’n, Inc., 844 A.2d 1126,
1136 (D.C. 2004); Friends of Tilden Park, Inc. v. District of
Columbia, 806 A.2d 1201, 1210 (D.C. 2002). These duties
are multifaceted: “[A] director or officer of a corporation
owes the corporation complete loyalty, honesty, and good
faith.” 3 FLETCHER CYC. CORP. § 837.50 (2010 rev’d
volume) (cited approvingly in Willens, 844 A.2d at 1136, and
Friends of Tilden Park, 806 A.2d at 1210); cf. Cahn v.
Antioch Univ., 482 A.2d 120, 131-32 (D.C. 1982).
According to Appellants, Cafesjian and Waters violated
these fiduciary responsibilities by engaging in a series of
actions—both during their tenure with AGM&M and after—
engineered to thwart AGM&M’s mission and derail the
museum’s progress. To prevail, Appellants shouldered the
burden of establishing not only the existence and breach of an
17
underlying duty by Cafesjian and Waters, but also a resultant
injury proximately caused by such breach. Pietrangelo v.
Wilmer Cutler Pickering Hale & Dorr LLP, 68 A.3d 697,
709-10 (D.C. 2013). The District Court thought they came up
short. Appellants now attack that outcome from several
angles, but because they fail to convince us that the District
Court erred in finding the injury element unproven, we need
not engage with their other arguments as to the breach
element. See Randolph v. ING Life Ins. & Annuity Co., 973
A.2d 702, 709 (D.C. 2009). On the injury front, Appellants
press two main arguments. Neither is persuasive.
First, Appellants contend that the District Court failed to
properly consider whether Cafesjian’s and Waters’ conduct
caused AGM&M to lose donations needed to move forward
with the museum’s development. This inability to fundraise,
they insist, was an injury proximately caused by Appellees.
We disagree. The District Court determined, as a factual
matter, that “the evidence at trial did not establish that any
donors changed their decisions to donate based on
Defendants’ conduct.” Armenian Assembly of Am., 772 F.
Supp. 2d at 116-17; id. at 116 (“[T]he record does not clearly
show that any actions by Cafesjian and Waters caused
AGM&M to lose donors.”). “At most,” the District Court
found, “the evidence showed that donors chose to withhold
their donations until the litigation was resolved and/or the
museum was opened,” and, since both sides contributed to the
cloud of litigation enveloping the museum project, the
District Court concluded that “donors’[] concerns about ‘the
litigation’ cannot be attributed solely to Defendants.” Id. at
117. These factual findings must stand unless “clearly
erroneous,” FED. R. CIV. P. 52(a)(6)—that is, unless “we are
left with a firm conviction that a mistake has been
committed,” Koszola v. F.D.I.C., 393 F.3d 1294, 1300 (D.C.
18
Cir. 2005)—and, despite Appellants’ conclusory arguments to
the contrary, no such conviction compels us here.
Second, Appellants contend that AGM&M was injured
when Cafesjian and Waters recorded a lis pendens for the
museum-related property in June 2008, see J.A. 615-17,
which they contend “stopped construction in its tracks.”
Appellants’ Br. at 54. As Appellants’ argument goes, once
the lis pendens was filed (and for so long as it remained on
the books), AGM&M was legally unable to make any
improvements or changes to the affected property, thus
rendering impossible completion of the museum project by
the Grant Agreement’s December 2010 deadline. We are
unconvinced. Even if we were to accept that a lis pendens
operates as the sort of absolute, legal roadblock Appellants
claim—a question we do not reach—their theory stands at
odds with the District Court’s findings of fact. As explained
above, the District Court found that “the reason [AGM&M]
put a ‘pause’ on the development was a lack of funding to
continue the project.” Armenian Assembly of Am., 772 F.
Supp. 2d at 116. It made no mention of the lis pendens
impeding the project’s progress. So in light of the District
Court’s factual findings, to which we defer, the filing of the
lis pendens was not the cause of any claimed injury. We
therefore reject this theory as well.
Otherwise, Appellants have abandoned the other claims
of injury advanced below—increased tax consequences, legal
fees, and others, see Armenian Assembly of Am., 772 F. Supp.
2d at 116-17—and we need not pass on them here. In sum,
because Appellants failed to prove that they were injured by
any of the supposed breaches they attribute to Cafesjian and
Waters, we find no error in the District Court’s resolution of
their breach-of-fiduciary-duty claims.
19
III.
Much of Appellants’ focus on appeal—indeed, much of
the parties’ overall focus throughout this litigation—has been
trained on the Grant Agreement’s reversion clause. Because
AGM&M failed to develop (or at least “substantially
develop”) the museum by December 2010, the District Court
concluded that the Grant Agreement provided Cafesjian and
CFF the right to seek transfer of the properties granted to
AGM&M for the museum’s use. See Armenian Assembly of
Am., 772 F. Supp. 2d at 121-22. From Appellants’
perspective, the District Court wrongly enforced and
interpreted the reversion clause. Although they advance a
multitude of arguments on this issue, we find none availing
and only two worthy of any detailed discussion. 9
First, Appellants contest the enforceability of the
reversion clause as a general matter. They argue that the
District Court should have exercised its equitable powers to
either toll the reversion deadline, or deem the reversion clause
unenforceable altogether, based on the prevention doctrine.
In their view, because Cafesjian’s actions were the very
reason AGM&M could not develop the museum by the end of
2010, equity should not permit him to benefit from
AGM&M’s failure to meet that deadline.
9
We recognize that some uncertainty arose in the District Court as
to whether this provision truly describes “reversion” rights, rather
than “transfer” rights—insofar as the properties were originally
held by TomKat, and not Cafesjian or CFF directly, and thus would
not truly “revert” to Cafesjian or CFF in the event the provision
were triggered. Without expressing any opinion on the legal
consequences of the label, we adopt the term “reversion clause” for
simplicity’s sake, only because the parties have used that moniker
throughout the litigation.
20
To be sure, the District of Columbia does recognize the
prevention doctrine, which stands for the proposition that if
one contracting party’s actions are the cause for another
party’s failure to satisfy a condition in the contract, “he
cannot take advantage of the failure.” In re Estate of Drake, 4
A.3d 450, 454 (D.C. 2010) (internal citation omitted); see
also Aronoff v. Lenkin Co., 618 A.2d 669, 682 (D.C. 1992)
(“Prevention . . . can negate a requirement to satisfy a
condition precedent.”); 13 WILLISTON ON CONTRACTS § 39:3,
at 569 (4th ed. 2013) (“It is a general principle of contract law
that if one party to a contract hinders, prevents, or makes
impossible performance by the other party, the latter’s failure
to perform will be excused.”). The trouble with Appellants’
prevention theory, however, is that it is undercut by the
District Court’s factual findings. As the District Court
interpreted the evidence below, it was the “lack of funding”
that caused AGM&M to put the brakes on the museum
project, “and the record [did] not clearly show that any
actions by Cafesjian . . . caused AGM&M to lose donors.”
Armenian Assembly of Am., 772 F. Supp. 2d at 116; see also
id. (“Plaintiffs blame Cafesjian . . . for their inability to
fundraise, but that claim is speculative.”). And, as we have
already noted, the District Court found that prospective
donors may have chosen to delay their contributions because
of the litigation brought by both of the contracting parties.
Thus, even if Cafesjian did truly interfere with the museum’s
progress, as Appellants insist, the District Court’s findings
confirm that any such actions were not the cause of
AGM&M’s inability to substantially complete the museum by
December 2010.
In an effort to escape this outcome, Appellants also
contend that the District Court’s factual findings are
immaterial because it applied the wrong legal standard for
causation in the first place. They argue that Cafesjian’s
21
actions need only have been “fairly attributable” to
AGM&M’s failure to meet the reversion clause’s deadline,
and not necessarily the “but-for” cause, as the District Court
supposedly surmised. We decline to entertain this argument
because—as was an unfortunate theme in these appeals—it
was not raised by Appellants until reply. See, e.g., S. Coast
Air Quality Mgmt. Dist. v. EPA, 554 F.3d 1076, 1081 n.*
(D.C. Cir. 2009) (“[I]n order to prevent sandbagging of
appellees and respondents, we do not consider arguments that
were raised neither in the opening brief nor by respondents.”)
(internal citation and quotation marks omitted).
Second, Appellants argue that, even if the reversion
clause is valid and enforceable as a general matter, the
District Court was wrong to allow CFF to take the properties
in full—particularly the Bank Building, since nearly half of
the funds used for its original purchase were provided by
neither CFF nor Cafesjian. Instead, Appellants urge, the
language of the Grant Agreement only allows “Cafejsian to
recoup what he contributed to the project”—i.e., a percentage
share of the Bank Building. Appellants’ Reply Br. at 15.
This argument hinges on three words used in the reversion
clause: “to the degree any portion of the Grants has been
funded, at the Grantor’s sole discretion, the Assembly shall
return to the Grantor the Grant funds or transfer to the
Grantor the Grant Property.” J.A. 463 (§ 3.1(B)(ii))
(emphasis added). Appellants claim that, by inserting the
phrase “to the degree,” the parties unambiguously signified
that any potential reversion—whether of funds or of
property—would be proportionate to the amount of CFF’s
and Cafesjian’s contributions. See Appellants’ Reply Br. at
17 (“In other words, Cafesjian could elect to recoup the Grant
funds ‘to the degree’ he had actually provided them or require
the Assembly to transfer the Grant Property ‘to the degree’
that he had provided funds to purchase it.”). We, like the
22
District Court, think this argument boils down to a
“straightforward question of contract interpretation.”
Armenian Assembly of Am., 772 F. Supp. 2d at 144.
The District of Columbia follows the “‘objective’ law of
contracts, which generally means that ‘the written language
embodying the terms of an agreement will govern the rights
and liabilities of the parties, [regardless] of the intent of the
parties at the time they entered into the contract, unless the
written language is not susceptible of a clear and definite
undertaking, or unless there is fraud, duress, or mutual
mistake.’” DSP Venture Grp., Inc. v. Allen, 830 A.2d 850,
852 (D.C. 2003) (quoting Geiger v. Crestar Bank, 778 A.2d
1085, 1091 (D.C. 2001)) (alteration in original). Our initial
task, then, is to determine whether the disputed language is
unambiguous. If so, we rely strictly on the terms of the
contract in ascertaining the parties’ intended meaning,
eschewing extrinsic evidence. See Tillery v. D.C. Contract
Appeals Bd., 912 A.2d 1169, 1171, 1178 (D.C. 2006). If, on
the other hand, we find that “the contract has more than one
reasonable interpretation and therefore is ambiguous,” then
we must consider extrinsic evidence to “determine what a
reasonable person in the position of the parties would have
thought the disputed language meant.” Id. at 1176. The
question of a contract’s ambiguity vel non is one we review
de novo. See Segar v. Mukasey, 508 F.3d 16, 22 (D.C. Cir.
2007).
At first blush, there is some facial appeal to Appellants’
proffered interpretation of the reversion clause. After all, the
ordinary meaning of the word “degree” denotes some
measure of proportionality. See, e.g., WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 594 (3d ed. 1981) (“degree”:
“the extent, measure, or scope of an action, condition, or
relation”); THE NEW OXFORD AMERICAN DICTIONARY 446 (2d
23
ed. 2005) (“degree”: “the amount, level, or extent to which
something happens or is present”). Given this, we agree that
the terms of the reversion clause do unambiguously
contemplate the possibility of some sort of partial reversion,
depending on the “degree” to which the Grants had been
funded at the time of reversion. But looking to the plain
language of the Grant Agreement—in particular, the
contract’s own definitions of the terms “Grants” and “Grant
Property”—the contract is equally unambiguous in
confirming that any such partial reversion would not be
measured in the sense Appellants urge.
The capitalized term “Grants” carries the same meaning
in the reversion clause as it does elsewhere in the Grant
Agreement—that is, the “Grants” identified are the
combination of the “First Grant” and the “Second Grant,” as
defined by the contract. The “First Grant” is itself defined as
the total amount CFF and Cafesjian donated for the
acquisition of the Bank Building (and an additional amount to
be used toward the creation of a memorial), and the “Second
Grant” is defined as the total amount CFF and Cafesjian
provided to purchase the Adjacent Properties. J.A. 461-63
(§§ 1.1-1.3, 2.1-2.3). In other words, the “Grants” referred to
in the Grant Agreement are already limited to the universe of
funds contributed by CFF or Cafesjian. Determining the
“degree” to which the “Grants” had been funded, therefore,
entails no consideration of the overall amount of funds used
to acquire the Bank Building, regardless of the source, as
Appellants’ argument presupposes. Appellants’ Reply Br. at
17 (“[H]e could have demanded the Grant Property ‘to the
degree’ that he had funded its purchase: $3.5 million of the
[total] $7.25 million purchase price of the Bank Building.”).
Instead, one would look solely to the degree that CFF and
Cafesjian had funded the “Grants” specified and enumerated
within the Grant Agreement. And so long as those amounts
24
were fully funded at the time of the reversion, any resultant
acquisition of the Grant Property under the reversion clause
would be unrestricted. (We note that this interpretation
refutes Appellants’ contention that their reading of the
reversion clause is the only interpretation that would give
meaning to the phrase “to the degree.”)
Equally unhelpful to Appellants’ proffered reading, we
think, is the contract’s definition of the term “Grant
Property,” which is identified as the “First Grant Property”
and the “Second Grant Properties,” together. The “Second
Grant Properties” are made up of the Adjacent Properties
(“1334-36, 1338, 1340, and 1342 G Street N.W.”), while the
“First Grant Property” is defined—quite importantly for
purposes of this discussion—as the entirety of the Bank
Building: “the property at 14th and G Streets, N.W.,
Washington, D.C., known as the National Bank of
Washington Building.” J.A. 461-62 (§§ 1.2, 2.2). Had the
parties sought to somehow delimit CFF’s and Cafesjian’s
rights to obtain a reversion of the Bank Building, one
approach might have been to define the “First Grant
Property” as a partial interest in the Bank Building
proportionate to CFF’s and Cafesjian’s relative contributions,
or something to that effect. Yet no such limitation appears in
the Grant Agreement.
With this understanding of the reversion clause in mind,
we conclude that, because the Grants were fully funded at the
time CFF exercised its reversionary rights, the District Court
correctly determined that CFF was entitled to take the “Grant
Property” in full, without any limitation or setoff. At the time
of oral argument, there was some uncertainty as to the timing
of a final balloon payment for the property at 1340 G Street
N.W.; the parties’ supplemental filings, however, confirmed
that this final payment was indisputably made before the
25
District Court’s May 2011 decision, when the court resolved
the scope of CFF’s reversion rights and ordered the transfer of
the Grant Property in full. Thus, the Grants were fully funded
by the time of the reversion. Furthermore, even if the
operative date by which the Grants must have been funded
was December 31, 2010—as Appellants’ counsel suggested at
argument—we would still see no basis to require a partial
reversion due solely to the timing of the final balloon
payment. The parties anticipated, at the time they signed the
Grant Agreement, that the final payment for 1340 G Street
would be paid in March 2011, which means they knew full
well that the final payment would come due after December
31, 2010. See J.A. 241-42 (Undisputed Facts, ¶ 39). The
only way to give meaning to the term “funded” in the Grant
Agreement is to understand that the parties anticipated this
final payment, if timely tendered, would constitute full
funding of the Grants within the meaning of the contract.
We recognize that Appellants put forth a variety of
extrinsic evidence to support their interpretation—evidence
surrounding the parties’ drafting history, supposedly helpful
trial testimony, and more. Setting aside the fact that these
arguments essentially surface for the first time in Appellants’
reply brief, we have no occasion to consider their extrinsic
evidence because the language of the reversion clause is
unambiguous on this point. Capital City Mortg. Corp. v.
Habana Village Art & Folklore, Inc., 747 A.2d 564, 570
(D.C. 2000) (“[U]nder no circumstances will extrinsic
evidence be admissible to reveal the subjective intent of a
party to a contract unambiguous on its face.”).
In sum, the terms of the Grant Agreement’s reversion
clause are unambiguous. In the event the museum project
was not substantially completed by December 2010, CFF
(and Cafesjian) held the contractual right to seek either the
26
return of the Grant funds or the transfer of the Grant Property.
And so long as the Grants promised by CFF and Cafesjian
were fully funded at the time, those rights were without
limitation or setoff, whether based on the parties’ share of the
contributions on the front end, the properties’ appreciated
value at the time of reversion, or otherwise. With the benefit
of hindsight, Appellants may now think this deal improvident,
but no sense of buyer’s remorse can empower us to rewrite
the plain terms of the contract to which they agreed. 10
IV.
One set of claims was found proven below: Cafesjian’s
and Waters’ claims for indemnification against AGM&M.
Under the AGM&M bylaws, the District Court held, both
Cafesjian and Waters were entitled to indemnification from
the corporation for expenses associated with defending
against AGM&M’s claims for breach of fiduciary duty, given
that those expenses were incurred because of their roles as
trustees and officers of AGM&M. In decrying this ruling,
Appellants advance two lines of argument, one broader and
one more targeted. On a broader level, they argue that any
award of indemnification was improper on these facts because
Cafesjian, proverbially speaking, fired the first shot, suing
AGM&M first. As for the specifics of the District Court’s
award, Appellants insist that even if some degree of
indemnification is appropriate, the amount awarded below
was unreasonable. We reject both contentions.
10
Just as they did below, Appellants also advance a hodgepodge of
tax-focused arguments in arguing that the reversion clause cannot
be enforced as written. We reject these arguments for the reasons
stated by the District Court. Armenian Assembly of Am., 772 F.
Supp. 2d at 147-50.
27
First, Appellants contend that indemnification is
improper altogether because the claims for breach of fiduciary
duty that AGM&M advanced were merely responsive to the
litigation initiated in the first place by Cafesjian. In their
view, because Cafesjian “started this case,” the resultant legal
expenses are a “self-inflicted wound,” Appellants’ Br. at 62-
63, which means that neither Cafesjian nor Waters can seek
indemnification associated with any claims that grew out of
the litigation. We are not persuaded.
The issue of indemnification in this case is governed by
the AGM&M bylaws. The bylaws provide, in relevant part,
that “the Corporation shall indemnify . . . any former Trustee
or officer of the Corporation . . . against any and all expenses
and liabilities actually and necessarily incurred by him or her
or imposed on him or her in connection with any claim,
action, suit or proceeding . . . in which he or she is . . . made a
party by reason of having been such Trustee [or] officer.”
J.A. 498 (§ 4.1) (emphasis added). The only carve-out from
mandatory indemnification occurs if the trustee or officer is
found “guilty of a criminal offense or liable to the
Corporation for damages arising out of his or her own
negligence or misconduct in the performance of a duty to the
Corporation.” Id. Given our earlier analysis, this solitary
exception finds no application here. And otherwise, the
bylaws do not draw any distinction between legal expenses
incurred in a purely defensive litigation capacity, and those
incurred in defending against claims filed only after the
trustee or officer first brought suit against the organization.
Nor do we perceive any other basis to draw such a distinction.
Irrespective of how these lawsuits originally began, the fact
remains that AGM&M chose to assert (rather wide-reaching)
claims against Cafsejian and Waters for breach of fiduciary
duty, and the fact remains that Cafesjian and Waters were
28
required to mount a defense to those claims. The legal fees
associated with their defense were thus “actually and
necessarily” incurred “in connection with” claims arising out
of their service as trustees or officers of AGM&M, and are
therefore subject to indemnification under the bylaws. J.A.
498. Appellants’ effort to escape liability by focusing on
Cafesjian’s plaintiff status in the first-filed lawsuit simply
finds no support in the law. See 3A FLETCHER CYC. CORP. §
1344, at 590-91 (2011 rev’d volume) (“Indemnification may
even be available where the director is the plaintiff in the
litigation.”). As such, the District Court rightly found that
some measure of indemnification in favor of Cafesjian and
Waters was proper, at least with respect to their defense of
AGM&M’s claims for breach of fiduciary duty. 11
Second, Appellants contest the amount of the District
Court’s indemnification award as excessive. “[T]he
determination of a reasonable fee award is for the trial court
in light of the relevant circumstances,” and we review that
determination “only for abuse of discretion.” Ideal Elec. Sec.
Co., Inc. v. Int’l Fidelity Ins. Co., 129 F.3d 143, 150 (D.C.
Cir. 1997). Although Appellants’ specific arguments take
several forms, the overarching theme is that the District Court
failed to ensure the fees awarded were “reasonable.” Our
review of the record leads us to the opposite conclusion.
11
Relatedly, Appellants assert that AGM&M became a private
foundation, and that indemnification in these circumstances is
forbidden under its bylaws as an act of self-dealing. We reject this
argument for the reasons given below. Even if the IRS had made a
determination that AGM&M was a private foundation, Treasury
regulations exclude the indemnification of former officers from the
ambit of self-dealing. See Armenian Assembly of Am., 772 F. Supp.
2d at 151-52 (citing 26 C.F.R. § 53.4941(d)-2(f)(3)).
29
To begin with, Appellants are correct that courts are
“‘obliged under District law to award only reasonable fees,’”
Ideal Elec. Sec. Co., 129 F.3d at 150 (quoting F.D.I.C. v.
Bender, 127 F.3d 58, 63 (D.C. Cir. 1997)) (emphasis added),
and we agree that this holds true whether attorneys’ fees are
awarded under a fee-shifting statute or pursuant to a
contractual indemnification provision (as here). Given this,
we reject at the outset Appellees’ argument that, simply
because the AGM&M bylaws do not explicitly limit a
covered indemnification award to one that is “reasonable,” no
such limitation applied. Irrespective of the specific language
used in the bylaws, District of Columbia law requires that a
fee award be reasonable. That said—and despite Appellants’
complaints to the contrary—we are satisfied that the District
Court made this necessary determination here, “ensuring the
overall award [was] reasonable.” Armenian Assembly of Am.,
924 F. Supp. 2d at 208.
In arguing otherwise, Appellants principally fault the
District Court for opting not to apply the Laffey matrix. See
Appellants’ Supp. Br. at 12-15. This contention misses the
mark. We certainly have approved of the Laffey matrix as a
useful tool in assessing reasonableness in some
circumstances. See, e.g., Covington v. District of Columbia,
57 F.3d 1101, 1109 (D.C. Cir. 1995). But so far as we can
tell, we have never employed the matrix, nor have we
explicitly affirmed its use, in a suit exclusively between
private parties. 12 And more importantly in any event, as we
made clear in Bender, for fees awarded pursuant to
contractual provisions under D.C. law, the discretion imbued
12
We realize, however, that the District of Columbia Court of
Appeals has affirmed a lower court’s reliance on the Laffey matrix
in such a case. See Campbell-Crane & Assocs., Inc. v.
Stamenkovic, 44 A.3d 924, 947-48 (D.C. 2012).
30
in the trial court in adjudging the reasonableness of a fee
award includes the ability to decide for itself “the nature and
amount of proof necessary to determine reasonableness.”
Bender, 127 F.3d at 64. That is, “the trial judge decides what
sort of proof, if any, is needed to determine what a reasonable
fee would be in any individual case”; in fact, we have gone so
far as to recognize that “a judge who has monitored the case
from its inception . . . can fix the amount of the fee without
hearing any evidence at all.” Id. (emphases added). Faced
with our precedent on these points, Appellants’ weighty
reliance on the District Court’s disregard for the Laffey matrix
gets them nowhere.
Otherwise, Appellants take particular issue with the
portion of the District Court’s indemnification award for
“blended” entries—that is, time entries that are partially, but
not exclusively, attributable to the defense of AGM&M’s
fiduciary-duty claims. They first insist that any degree of
indemnification for “blended” entries is impermissible, but
this argument is quickly dispelled by the Supreme Court’s
decision in Hensley v. Eckherhart, 461 U.S. 424 (1983),
which recognized that, where a party is entitled to a fee award
for only some of the claims involved in the litigation, “[t]he
district court may attempt to identify specific hours that
should be eliminated, or it may simply reduce the award to
account for the limited success.” Id. at 435-37. Appellants
also fault the 50% benchmark used to account for these
blended entries, but we perceive no abuse of discretion in the
adoption of this rate, which the District Court characterized as
“an optimum and reasonable percentage.” J.A. 1555; see also
Armenian Assembly of Am., 924 F. Supp. 2d at 209-10
(adopting recommendation).
In sum, the District Court made a determination that the
indemnification award was reasonable, and, contrary to
31
Appellants’ standpoint, it was not required to adhere to any
particular method in doing so. We have considered their
arguments, and we find no basis to disturb the
indemnification award.
V.
Appellants’ final challenges on appeal relate to two post-
trial motions filed with and rejected by the District Court.
Through the first, Appellants sought a new trial based on the
District Judge’s alleged conflict of interest in these
proceedings. Invoking the standards set forth in 28 U.S.C. §
455, Appellants specifically argued that the judge was biased
in favor of Cafesjian because the two had been donors (along
with others) of a glass sculpture to the Metropolitan Museum
of Art years prior, and because they supposedly otherwise
shared a general interest in fine glass art, especially sculptures
created by a particular artist, Stanislav Libensky. The District
Court turned aside this challenge, finding it not only
procedurally infirm, but also unfounded on the merits. We
agree with the District Court that no reasonable observer
would question a judge’s impartiality based on these
circumstances, 28 U.S.C. § 455(a), and we also agree that the
trial judge’s artistic interests could not have been substantially
affected by the case’s outcome, id. § 455(b)(5)(iii). See
Armenian Assembly of Am., 783 F. Supp. 2d at 87-93; cf.
McCann v. Commc’ns Design Corp., 775 F. Supp. 1535, 1543
(D. Conn. 1991) (Cabranes, J.) (denying recusal under § 455
where judge was a Yale trustee and judge’s wife was a Yale
professor and parent company of defendant had previously
made financial contributions to Yale).
Appellants’ second new-trial motion averred that certain
late-breaking developments revealed an undiscovered
financial bent in this litigation on Waters’ part. Underlying
32
this motion was a lawsuit Waters filed against Cafesjian in
March 2012, alleging (among other claims) that Cafesjian
failed to pay him a “special bonus” supposedly promised “in
the event of a positive outcome in the AGM&M litigation.”
J.A. 1581. These facts, Appellants surmised, undermined
Waters’ credibility and would have impacted the District
Court’s view of the claims litigated at trial, particularly the
claims for breach of fiduciary duty. 13 The District Court
disagreed, denying the motion under Federal Rule 60(b). We
review that decision for abuse of discretion, Summers v.
Howard Univ., 374 F.3d 1188, 1192 (D.C. Cir. 2004), and we
uncover none here.
We have said before that, to secure relief under Rule
60(b), a litigant must establish not only that one of the rule’s
13
Appellants additionally bring to our attention that, in August
2013, Waters was indicted by the U.S. Attorney for the District of
Minnesota on 26 counts of mail and wire fraud, income tax
evasion, and other charges, relating to his alleged embezzlement of
millions of dollars from Cafesjian and CFF. See Appellants’ Supp.
Br. at 7. We note further that a jury has since convicted Waters on
all but one of those counts. See United States v. Waters, No. 13-cr-
203, Jury Verdict (Dkt. No. 93) (D. Minn. Mar. 5, 2014). Aside
from a passing reference to these developments, however,
Appellants do not even attempt to explain how Waters’ indictment
would have justified a new trial under Rule 60(b). As best we can
discern, the only conceivable import of this information might
relate to Waters’ indemnification rights under the AGM&M bylaws
(as he was found “guilty of a criminal offense,” J.A. 498), but
Appellants do not press this argument. And even if they did make
such an argument, the theory strikes us as a non-starter in any event
because Waters’ wrongdoing involved funds supposedly siphoned
away from CFF and Cafesjian, not AGM&M. See id., Redacted
Indictment (Dkt. No. 92) (D. Minn. Mar. 5, 2014). So while
Waters’ criminal troubles are certainly an interesting development,
they have no bearing on our resolution of these appeals.
33
enumerated grounds for relief is satisfied, but also some
“actual prejudice” flowing from the supposed misconduct or
other circumstances claimed to warrant relief. Summers, 374
F.3d at 1193; accord In re Hope 7 Monroe St. Ltd. P’ship,
743 F.3d 867, 875 (D.C. Cir. 2014) (reiterating that a movant
must show it was foreclosed from making a “full and fair
preparation or presentation of its case”). Appellants cannot
identify any such prejudice here. In resolving Appellants’
Rule 60(b) motion, the District Court explained that it did not
rely on Waters’ credibility in rendering its decision at trial.
Instead, the District Court explained, it grounded its decision
as much as possible on documentary evidence, rather than the
testimony of witnesses, given that most of the witnesses had
some personal stake in the outcome of the trial. Armenian
Assembly of Am., 924 F. Supp. 2d at 195. Even more to the
point, the District Court explicitly stated that it “analyzed the
initial trial record knowing that Waters had a personal
financial stake in the outcome of the case.” Id. at 196.
Appellants do not identify even a single instance in which the
District Court credited Waters’ testimony over the testimony
of their witnesses, nor do they point to any aspect of the
decision below that signals any sort of meaningful reliance on
Waters’ credibility. Simply put, the District Court reasonably
explained that the newly surfaced allegations surrounding an
undisclosed financial arrangement between Waters and
Cafesjian would not have altered its findings. That ruling can
hardly be characterized as an abuse of discretion. 14
14
We also believe the District Court acted well within its
discretion insofar as it denied the Rule 60(b) motion on the grounds
that the only form of “evidence” Appellants presented to support
this theory consisted of allegations in Waters’ unverified complaint,
which, of course, are not evidence at all. See Coward v. ADT Sec.
Sys., Inc., 194 F.3d 155, 161 (D.C. Cir. 1999) (Williams, J.,
concurring in part and dissenting in part) (“[A]llegations are
notoriously not evidence.”).
34
VI.
Appellants raised the lion’s share of issues joined for our
review on appeal; thus far, we have focused on their
arguments, and we reject them for the reasons stated. But
Appellees, for their part, also elected to cross-appeal the
District Court’s ruling concerning the Assembly’s lease of
space in one of the Adjacent Properties—the “Families USA
building,” located at 1334-36 G Street N.W. Dissatisfied with
the District Court’s determination that the Assembly’s lease
was and remains valid, Appellees make several arguments in
urging reversal. We are not persuaded.
First, Appellees argue that the Assembly’s lease, which
was originally executed in May 2009, was invalid from the
get-go. This is so, they say, because the lease’s purpose did
not adhere to the limited property uses permitted under the
Grant Agreement. This argument turns on Appellees’
contention that AGM&M’s lease of space, even if designed to
generate revenue for the museum’s development, cannot be
considered a property use that is “part of” the museum
project, as specified in the Grant Agreement. See J.A. 463 (§
3.1(A)). Said differently, we understand their theory to be
that AGM&M, in leasing the property to the Assembly,
exceeded the power authorized it under the Grant Agreement.
Under District of Columbia law, it is Appellees’ burden, as
the parties challenging a corporate act, to show that AGM&M
acted beyond the scope of its authority. See Green Leaves
Rest., Inc. v. 617 H St. Assocs., 974 A.2d 222, 230 (D.C.
2009); Hodge v. Evans Fin. Corp., 823 F.2d 559, 568 (D.C.
Cir. 1987) (applying D.C. law). And in striving to do so here,
they seem to suggest that the only way the property could be
used “as part of” the museum project—and thus remain
faithful to the Grant Agreement—is if the property physically
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housed some portion of the museum’s structure or grounds;
an ancillary use of the property for fundraising purposes,
Appellees suggest, cannot suffice. We reject this restrictive
reading. The plain language of the Grant Agreement
provision on which they rely does not foreclose a lease of one
of the Adjacent Properties to raise funds for the museum
project, as the District Court found was AGM&M’s purpose
here. Armenian Assembly of Am., 772 F. Supp. 2d at 101
(“The Building & Operations Committee also tried to raise
funds by leasing space in the Families U.S.A. building.”).
Appellees thus fall short of their burden to show that
AGM&M exceeded its authority in entering into the lease.
Second, and relatedly, Appellees contend that
AGM&M’s lease agreement with the Assembly was ultra
vires because it was never properly approved by AGM&M.
We think this argument squarely foreclosed by the District
Court’s factual findings. Id. at 125 (“[T]he record shows that
the Assembly’s lease in the Families U.S.A. building was
approved by the Building and Operations Committee, which
was delegated authority to manage the Properties by the
AGM&M Board.”). Appellees point to nothing in the record
that would cause us to upend these findings as clear error.
Third, Appellees argue that, even if it was proper for
AGM&M to lease the Families USA building to the
Assembly in the first place, the District Court was wrong in
not applying equitable remedies to void the Assembly’s
continued lease after the property was transferred to CFF per
the reversion clause. We see two problems with this theory.
For one, as Appellants note, it seems Appellees failed to
advance these equitable arguments in the District Court and
thus now face a forfeiture problem. Byers, 740 F.3d at 681;
Figueroa, 633 F.3d at 1133 n.3. Appellees insist otherwise,
but the generic and cursory references they point to in their
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filing below—for instance, asking the court to “alter, amend,
or make additional legal, equitable, and/or factual rulings”
concerning its decision on the lease, see Appellees’ Reply Br.
at 17 (emphasis in original)—are a far cry from properly
pressing their equitable arguments at the trial-court level.
Additionally, even if these theories are not deemed forfeited
per se, our review of the District Court’s application of
equitable principles is for abuse of discretion, see
Massachusetts v. Microsoft Corp., 373 F.3d 1199, 1207 (D.C.
Cir. 2004), and we identify none, particularly since the
briefing below never truly afforded the District Court the
chance to pass on these arguments in the first place.
Based on the foregoing, we reject the notion that the
Assembly’s lease in the Families USA building is invalid.
VII.
This legal saga has been long-lived. What began as a
single lawsuit to collect on an unpaid promissory note quickly
escalated into a morass of litigation. More than seven years
and millions of dollars in legal fees later, much of the parties’
work to achieve their dream of a museum appears to have
been for naught, which is regrettable. Whatever happens
next, hopefully our decision today can at least serve as the last
word on this dispute’s protracted journey through the courts.
For our part, we have considered all of the parties’
arguments. The judgment and post-judgment rulings of the
District Court are affirmed.
So ordered.
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