Banco Do Brasil, S.A. v. 275 Wash. St. Corp.

889 F.Supp.2d 178

BANCO DO BRASIL, S.A., Plaintiff,

v.275 WASHINGTON STREET CORP., as it is the Trustee of the Washington Street Realty Trust II, Defendant.

Civil Action No. 09–11343–NMG.

United States District Court, D. Massachusetts.

Aug. 17, 2012.

Daniel Bernstein, Charles G. Berry, James D. Flynn, Laura W. Tejeda, Arnold & Porter LLP, New York, NY, Eric F. Eisenberg, Robert T. Ferguson, Jr., Hinckley, Allen and Snyder, LLP, Boston, MA, for Plaintiff.

Paul E. White, Sugarman, Rogers, Barshak & Cohen, P.C., Boston, MA, for Defendant.

NATHANIEL M. GORTON, District Judge.

Finally, after consideration of the objections thereto, the Report and Recommendations (Docket No. 130) on plaintiff's renewed motion for summary judgment (Docket No. 94) is accepted and adopted.

REPORT AND RECOMMENDATION ON BANCO DO BRASIL'S RENEWED MOTION FOR SUMMARY JUDGMENT

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The plaintiff Banco do Brasil, S.A. (“Banco” or the “Bank”), as tenant, entered into a commercial lease agreement (the “Lease”) with the defendant 275 Washington Street Corp., as Trustee of the Washington Street Realty Trust II (the “Trust”), as landlord, for premises at 227–275 Washington Street in downtown Boston. The Lease contained an Early Termination provision allowing the Bank to terminate the Lease if it was unable to obtain regulatory approval to operate a branch office at the leased premises. It is undisputed that the approval was not obtained within the period defined by the Lease. At issue is whether the Bank's efforts to obtain such approval satisfied its contractual obligations under the Lease.

This matter is presently before the court on “Banco do Brasil, S.A.'s Renewed Motion for Summary Judgment” (Docket No. 94). By this motion, the Bank is seeking judgment in its favor on the Trust's counterclaims alleging that the Bank breached the Lease and violated the covenant of good faith and fair dealing by not taking all necessary actions to obtain needed regulatory approvals.¹ The Trust opposes this motion and asserts that summary judgment should be entered in its favor, even absent a motion, pursuant to Fed.R.Civ.P. 56(f).

The undisputed facts establish that the Bank pursued the necessary approvals diligently for an extended period of time, but withdrew its applications when it believed that approvals would not be forthcoming. However, there was no event which occurred which made obtaining the necessary approvals impossible per se before the expiration of the Lease period. In addition, there is evidence that the Bank could have followed a different path in seeking the approvals to open the branch office. Therefore, this court concludes that the fact finder should determine whether the efforts undertaken by the Bank satisfied its obligations under the Lease, and recommends to the District Judge to whom this case is assigned that the Renewed Motion for Summary Judgment, as well as the Trust's request for summary judgment, be DENIED.

II. STATEMENT OF FACTS²

The following facts are undisputed unless otherwise indicated.

The Lease

On August 29, 2008, the Bank leased from the Trust, for a term of ten years, 4,742 square feet of office space located at 227–275 Washington Street in downtown Boston (the “Premises”). (Lease § 1.1; PF ¶ 1). The Premises were to be used as a “high quality, full service retail branch banking facility.” (Lease § 1.1). The Lease contained two provisions relevant to the instant dispute about the need for regulatory approval. Specifically, § 3.2 provides as follows:

Section 3.2. The term hereof shall commence on the date (the “Commencement Date”) which is the earliest to occur of the following dates: (i) the expiration of one hundred twenty (120) days after (a) the Delivery Date specified in Section 1.1 hereof [September 1, 2008] and (b) regulatory approval (“Regulatory Approval”) has been obtained from the U.S. Treasury Office of Thrift Supervision for Tenant or its direct or indirect subsidiary, Banco do Brasil, FSB, to operate a branch bank in the demised premises as a federal savings bank; (ii) the date that the Tenant first opens for business in the demised premises; and (iii) June 1, 2009.

(Emphasis added). ( See also PF ¶ 2). Section 6.5 states in relevant part:

If Regulatory Approval has not been obtained within one (1) year from the date of this lease, then, subject to the following enumerated conditions, Landlord and Tenant each shall have the right to elect to terminate this lease by notice given to the other within sixty (60) days after the end of such one-year period and prior to obtaining Regulatory Approval.

(Lease § 6.5). The one year early termination period expired on August 29, 2009.

Regulatory Framework

The parties agree that although the Lease only requires approval of the Office of Thrift Supervision (“OTS”), before actually opening a retail branch banking facility the Bank was going to need regulatory approval from OTS, the Federal Deposit Insurance Corporation (“FDIC”), and the Board of Governors of the Federal Reserve System (“FRB”).³ However, there is a dispute as to whether the Bank's actual application to the FRB was for broader authority than necessary, and whether, if the Bank had limited its application, it could have received the necessary approvals in a timely manner. There is also a dispute between the parties as to whether the Bank decided to terminate the application process prematurely. The relevant facts are as follows.

It is undisputed that “[t]he Bank planned to use the Premises as the location for the Boston branch of a federal savings bank (“FSB”) that the Bank intended to establish de novo—that is, as a newly created banking institution.” (PF ¶ 5; DR ¶ 5). This facility was one of several that the Bank planned to establish in a number of cities, as part of a larger project designed to expand the Bank's presence in the United States. (PF ¶ 6, Scott Aff. ¶ 8). The project, known as Projeto Varejo (“Retail Project”), was approved by the Bank's Board of Directors on July 13, 2007. (PF ¶ 7).

As quoted above, the Lease referred only to the need to obtain the approval of OTS. (Lease § 3.2). Because the OTS does not charter uninsured banks, however, it is undisputed that before it could engage in banking activities, the Bank would have to obtain the approval of the FDIC, which provides federal deposit insurance for deposit accounts held by banking customers. (PF ¶ 13; DR ¶ 13). It is undisputed, as the Trust argues, that OTS technically could have approved the Bank's application subject to FDIC approval. ( See DF ¶ 24; PR ¶ 24). However, there is evidence in the record that, in actuality, it was highly unlikely that the OTS would approve an application without prior FDIC approval. ( See, e.g., Barnes Aff. ¶ 12). As detailed below, the Bank relies on an April 2, 2009 letter from the FDIC, returning the application for federal deposit insurance, as justification for its decision to withdraw its application with the OTS.

It is also undisputed that the approval of the FRB was required in order for the Bank, a foreign institution, to own a United States federal savings bank. (PF ¶ 14; DR ¶ 14; Ehrlich Aff. ¶ 14). As detailed below, however, there is a dispute as to whether the Bank's application to the FRB was too broad, thereby delaying the application process.

As part of its responsibilities, the OTS must determine if the Bank was subject to comprehensive consolidated supervision by the Bank's home country regulatory and supervisory authority (the “CCS determination”). ( See12 U.S.C. § 1467(a)(e)(2)(D); PF ¶ 17; Ehrlich Aff. ¶ 9). The OTS is obligated to make the CCS determination within 60 days from the date an application is deemed complete. (Ehrlich Aff. ¶ 19).⁴ In the instant case, the Bank elected to apply to the FRB to become a Financial Holding Company (“FHC”), which would allow it to engage in a broader range of financial activities than could be offered by a federal savings bank approved by the OTS. (DF ¶ 16; PF ¶ 15; Scott Aff. ¶ 16). In connection with the FHC request, the FRB was required to make a CCS determination, without any limit on the amount of time it could take to make the determination. (PF ¶¶ 15–16; Ehrlich Aff. ¶ 19). Absent an FHC request, however, the FRB would not make a CCS determination—it would be left to OTS. ( See Scott Aff. ¶ 17; Ehrlich Aff. ¶ 18). Moreover, FHC status was not required to establish a de novo federal savings bank. (DF ¶ 17).

Where, as here, the FRB is going to make a CCS determination, it is customary for the OTS to defer to and await the FRB's decision before making its own CCS determination. ( E.g., Barnes Reply Aff. ¶ 22; Kelsey Reply Aff. ¶ 35). As the Trust asserts, “[i]f the Bank had not submitted its request to the FRB for a CCS determination in connection with the Bank's financial holding company election, the OTS would have been the only federal agency with the obligation or authority to make a CCS determination with respect to the Bank.” (Ehrlich Aff. ¶ 18). As detailed below, the Bank claims that the FRB's failure to make its CCS determination in a timely manner led the FDIC to return its application for federal deposit insurance and essentially made it impossible to obtain the necessary regulatory approvals within the time specified in the Lease.

The Bank's Applications

In September 2007, the Bank filed an application with the FRB to be treated as an FHC. (DF ¶ 7). On March 10, 2008, the Bank filed applications with the OTS and the FDIC as part of the process to obtain regulatory approval for a de novo federal savings bank in the United States. (PF ¶¶ 20–21; DF ¶ 6; Scott Aff. ¶¶ 25–26, 30). On March 20, 2008, it filed its application with the FRB to become a de novo federal savings bank. (PF ¶ 23). The Bank's application to the FRB for approval as an FHC was independent of its application to become a de novo federal savings bank. (DF ¶ 8). It was important to the Bank to be...