Superior Court of Connecticut, Judicial District of New Haven, New Haven
MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 104)
Jon C. Blue, Judge of the Superior Court.
The Motion To Strike now before the court presents a question of Pennsylvania law involving a contractual right of first refusal. For the reasons set forth below, the Motion must be denied.
Because the relevant contractual documents are incorporated by reference in the complaint, many of the operative facts are not in controversy.
On December 19, 2011, the plaintiff, Bimbo Foods Bakeries Distribution, LLC (" BFBD"), entered into a Distribution Agreement (" Contract") with Richard Wajert. The Contract refers to Wajert as " Distributor." Sec. 11.8 of the Contract provides that, " The validity, interpretation and performance of this Agreement shall be controlled by and construed in accordance with the laws of the Commonwealth of Pennsylvania."
The crucial substantive provision of the Contract is § 6.1. That section provides in relevant part that,
The Distribution Rights are owned by the DISTRIBUTOR and may be sold or otherwise transferred in whole or in part by DISTRIBUTOR . . . provided that any such sale or transfer shall be subject to: (a) the prior written approval of BFBD which approval will not be unreasonably withheld; and (b) a right of first refusal on the part of BFBD at the same terms and conditions offered to DISTRIBUTOR . . . by a bona fide purchaser or transferee (the " Offeror"). The right of approval and right of refusal referred to herein shall expire unless the DISTRIBUTOR is notified by BFBD that it does not approve the sale or transfer or that it wishes to exercise its right of first refusal by notice given within ten (10) days after the last to occur of the following:
(i) receipt by BFBD if written notice of intent to sell or transfer to a named Offeror on terms and conditions fully set forth in such notice, and
(ii) receipt by BFBD of the Offeror's current financial statements and such additional information concerning the Offeror's financial condition, credit, driving record and other matters reasonably appropriate to BFBD in its determination. If the contemplated sale or transfer is not a bona fide transfer for value, the price to be paid by BFBD shall be the market value of the Distribution Rights at the time of receipt of such notice of intent.
On March 22, 2012, with the consent of BFBD, Wajert transferred his rights under the Contract to the defendant, R. J. Wajert, Inc. (" Corporation").
On April 17, 2014, the Corporation notified BFBD that it intended to sell its distribution rights to Julian May for $106, 296. The Corporation represented that it and May " have agreed to the above terms and conditions." The Notice is signed both by the Corporation and May.
On April 21, 2015, BFBD informed the Corporation that it was " exercising its right of first refusal."
On March 12, 2015, BFBD commenced this action by service of process. BFBD is the sole plaintiff, and the Corporation is the sole defendant. The complaint consists of a single count reciting the facts set forth above, incorporating the relevant documents by reference, and seeking " equitable relief in the form of an order of specific performance requiring [the Corporation] to sell to BFBD the Distribution Rights under the Distribution Agreement on the terms set forth in the Notice of Intent to sell."
On April 29, 2015, the Corporation filed the Motion To Strike now before the Court. The Motion contends that the complaint " fails to state a claim upon which relief may be granted." The Motion was argued on September 28, 2015.
The differences between the parties involve matters of contract interpretation which are questions of ...