Since May, we’ve followed Solus v. Perry, a New York County Supreme Court case originally filed in July of 2012. The case centered around whether Perry entered into a binding oral agreement to sell Solus a participation interest in a $1.6 billion claim against Bernie Madoff’s bankruptcy estate. The parties agreed on a price and some other material terms during a phone call in April of 2012 but never signed a written agreement. In its pleadings, Perry claimed that because its trader noted that the trade was “subject to documentation,” no agreement was ever formed.
Last Monday, the parties filed a stipulation discontinuing the case with prejudice.
During oral arguments on the parties’ summary judgment motions last year, Judge Saliann Scarpulla noted that several issues with meaningful implications for the distressed trading market would need to be resolved before summary judgment could be entered, including: (1) whether there is an industry custom regarding the binding nature of oral contracts for unsecured claim trades; (2) whether an agreement that a trade is subject to documentation means there is no binding contract; and (3) whether the need for consent of a third party means there is no binding contract if such consent is not obtained.
The Solus v. Perry case will not produce an opinion resolving these issues. However, market participants should take note that even in New York, these issues are still considered open questions. Therefore, we reiterate the conclusions from our May article:
- When possible, get a trade confirmation signed immediately after entering into an oral trade.
- If an executed trade confirmation is not forthcoming, confirm that your counterparty is familiar with the LSTA standard terms or other relevant industry customs and intends to work within those guidelines.
- Be proactive any time a counterparty delivers a communication during or after trade time that could be interpreted as evidence that a binding agreement does not already exist.
- Exercise special care when dealing with counterparties and people with whom you do not typically trade.