Meyer Group Ltd v. United States , 121 Fed. Cl. 105 ( 2015 )

In the United States Court of Federal Claims
No. 12-488C
(April 30, 2015)
************************ Contract Disputes Act; Commercial
* Real Estate Brokerage Agreement;
THE MEYER GROUP, LTD., * Extension Clause; Real Estate Leases;
* Federal Rule of Evidence 801(d)(2);
Plaintiff, *
Breach of Contract; Damages Equaling
*
v. * Brokerage Commissions On
* Transactions That Occurred After
THE UNITED STATES, * Brokerage Agreement Was
* Terminated; Expectation Damages;
Defendant. * Market Rate for Real Estate Brokerage
* Commissions.
************************
Thomas E. Shakow, Aegis Law Group, LLP, 801 Pennsylvania Avenue, N.W., Suite 740,
Washington, D.C., 20004, for Plaintiff.
Stuart F. Delery, Jeanne E. Davidson, Donald E. Kinner, and Douglas T. Hoffman,
Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., 20044,
for Defendant.
________________________________________________________________________
OPINION AND ORDER
________________________________________________________________________
WILLIAMS, Judge.
Plaintiff, The Meyer Group, Ltd. (“Meyer Group”), claims that the Government, through
the Postal Regulatory Commission (“PRC”) breached an exclusive real estate brokerage agreement
(“Agreement”) by refusing to recognize Plaintiff as its real estate broker and the “procuring cause
of” certain lease transactions. Specifically, Plaintiff claims that PRC improperly failed to request
that the landlord pay Plaintiff commissions based on four lease transactions that it procured for
PRC, after the termination of its Agreement. Plaintiff seeks $469,516.35 in damages plus interest
under the Contract Disputes Act (“CDA”).1 Pl. Post-Trial Br. 74-75.
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Plaintiff calculates this figure as 4% of the lease transactions at issue -- the Seventh
Amendment to the Original Lease $11,491,021.71 ($459,640.87) and 4% of three Bryan Cave
subleases, $59,565.00 ($2,382.60), $26,250.00 ($1,050.00), and $161,072.00 ($6,442.88). Pl.
Post-Trial Br. 74-75.
This matter comes before the Court following a trial on liability and damages. The Court
finds that PRC breached the Agreement by failing to recognize Plaintiff as its exclusive broker and
procuring cause with respect to two claimed transactions. Specifically, PRC failed to inform the
landlord that Meyer Group was the procuring cause of both the Seventh Amendment to the
Original Lease and the first Bryan Cave Sublease. JX 27 at 2. Consequently, the landlord failed
to pay Meyer Group its agreed-upon commissions. The Court finds that Meyer Group “submitted”
the location of the Seventh Amendment to the Original Lease to PRC within the meaning of the
Agreement prior to termination and that the Agreement covered this transaction even though it
was consummated 655 days after the Agreement was terminated. The Court also finds that Meyer
Group “submitted” the location of the fifth floor Bryan Cave sublease to PRC during the life of
the Agreement and that the Agreement covered this transaction even though it occurred 412 days
after the Agreement was terminated. The Court finds that Meyer Group did not submit the location
of the second Bryan Cave sublease to PRC and that the third Bryan Cave sublease was not covered
by the Agreement because it occurred 825 days after the Agreement was terminated.
To remedy this breach, the Court awards Plaintiff damages equaling the commissions
Plaintiff lost – a 3.5% commission, or $402,185.76, for the Seventh Amendment to the Original
Lease, and a 3% commission, or $1,923.75, for the first Bryan Cave sublease, totaling
$404,109.51, plus interest calculated pursuant to 41 U.S.C. § 7109(a)(1).
Findings of Fact 2
The Parties and Other Key Individuals
Meyer Group is a licensed real estate brokerage company with its principal place of
business in the District of Columbia. JSF ¶ 3. William Meyer, also known as Bill Meyer, is
founder, President, and owner of Meyer Group. Tr. 15:19-16:3 (Meyer). James Rayborn worked
as a Senior Vice President for Meyer Group. JX 12 at 1. Meyer Group also employed Mekonnen
Tekle, who performed lease audits and financial analyses for clients. JX 244 at 6:7-20. Meyer
Group typically represents tenants in office lease negotiations. Tr. 16:6-8 (Meyer).
PRC is an independent agency that was known as the Postal Rate Commission until 2006,
when the Postal Accountability and Enhancement Act changed the agency’s name to the Postal
Regulatory Commission. JSF ¶¶ 1-2. PRC’s offices are located at 901 New York Ave, NW,
2
These findings of fact are derived from the record developed during a two-day trial, held
May 7-8, 2014, and from the parties’ Joint Stipulations of Uncontested Material Fact (“JSF”) and
Additional Joint Stipulations of Uncontested Material Facts (“AJSF”).
Additional findings of fact are in the discussion. The Court uses “PX” to cite Plaintiff’s
exhibits, “JX” to cite joint exhbits, and “Tr.” to cite testimony. At trial, Plaintiff called William
Meyer, Shoshana Grove, and Chairman Ruth Goldway as fact witnesses, and David Ellis Kaplan
as an expert witness. Defendant called Chairman Goldway and Ms. Grove as fact witnesses, and
James Warkentin as an expert witness.
Upon review of the record, the Court ordered Plaintiff to file a supplemental brief “setting
forth with citations to the record, the total gross aggregate lease value for the Seventh Amendment
to the Original Lease . . . , and an explanation of how such values were calculated.” Plaintiff filed
this supplemental brief on November 26, 2014, and Defendant filed a response on January 5, 2015.
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Washington, D.C. (“the Building”). JSF ¶ 1. When Meyer Group starting working with PRC in
October 2003, its main points of contact were PRC’s Secretary and Chief Administrative Officer,
Steve Williams, and the Deputy Secretary, Garry Sikora. After Messrs. Williams and Sikora left
the agency in 2009, Meyer Group communicated first with Judy Grady, the Assistant Director of
Strategic Planning, and then Shoshana Grove, who became Secretary and Chief Administrative
Officer in September 2009. Tr. 197:4-25 (Goldway). Ms. Grove reported to Chairman Ruth
Goldway, who was a Commissioner of PRC starting in 1998, and became Chairman in 2009. Tr.
196:15-22; 198-14-15 (Goldway).
The landlord for the Building was BP/CRF 901 New York Ave, LLC (“BP/CRF”), and
Meyer Group and PRC had communications with employees of Boston Properties (“BP”), a joint
venture partner in the ownership of the Building. JSF ¶¶ 6-7. Mr. Gregory Storrs was responsible
for leasing vacant office space in the building. Id. ¶ 8. Mr. Storrs, who has been in commercial
real estate since 1986, was BP’s Director of Leasing for Washington, D.C., and was responsible
for five buildings BP owned, including 901 New York Ave, NW. JX 243 at 9:2-18. The parties
also communicated with Ms. Susan DeRosa, a BP property manager for 901 New York Ave, NW.
Id. at 17:21-18:1.
The Start of the Relationship Between Meyer Group and PRC
Meyer Group’s relationship with PRC began in 2002, when, upon learning PRC was
seeking to relocate to new office space in Washington, D.C., Meyer Group began contacting PRC
with information about the real estate market. Eventually Meyer Group was interviewed to
become PRC’s broker. JX 1-4; Tr. 17:18-23 (Meyer). In 2003, before the Agreement was signed,
Meyer Group provided services to PRC, including taking PRC employees on building tours,
because Mr. Meyer felt that he had a “green light” from PRC that he would be its broker. Tr.
19:11-21; 130:2-10 (Meyer). Mr. Meyer would not have taken PRC employees on tours without
an understanding that Meyer Group would be engaged as a broker, because he expected a
commission if PRC ended up signing a lease. Id. at 129:15-130:10.
After being selected, Meyer Group wrote the exclusive brokerage Agreement, and on
October 28, 2003, Mr. Rayborn sent the Agreement to PRC’s Deputy Secretary, Mr. Sikora,
inviting him to make changes. JX 20 at 1; Tr. 19:11-20:23 (Meyer). PRC did not make any
changes to the Agreement. Tr. 20:3-8 (Meyer). Over six months later, on May 5, 2004, the then-
Chairman of PRC signed the Agreement. JX 27.
The Agreement, written from the perspective of PRC, provided, in full:
The Meyer Group, Ltd. is hereby appointed, through its representatives, William J.
Meyer and James M. Rayborn, as our exclusive real estate broker and will be given
the exclusive right to assist us in obtaining a lease or purchasing premises in the
Washington, D.C. metropolitan area. The appointment of The Meyer Group, Ltd.
is effective for a period of twelve (12) months from the date that you countersign
this letter, and will continue on a calendar month-to-month basis thereafter unless
The Meyer Group, Ltd. receives written notice to the contrary. Postal Rate
Commission, on ten (10) days written notice to The Meyer Group, Ltd, may
terminate this agreement for non-performance at any time.
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The Meyer Group, Ltd. will use its best efforts to secure a location or locations
satisfactory to us. We will cooperate with you in good faith in your efforts to secure
satisfactory premises and to maintain this relationship. In that regard, we will,
among other things, refer to The Meyer Group, Ltd. all inquiries and offerings
received by us with respect to the lease of such premises, regardless of the source
of such inquiry or offerings. All negotiations will be conducted solely by The
Meyer Group, Ltd. and under its direction, subject to our final approval. The Meyer
Group, Ltd. will have no authority to sign a lease, or make any financial
commitments, on our behalf.
The Meyer Group, Ltd. will acquire information on all locations that meet our
requirements. The Meyer Group, Ltd. will carefully select and present to us those
locations, which are the most suitable for our purposes. If and when we decide on
a location, The Meyer Group, Ltd. will negotiate the terms of the lease taking
advantage of its knowledge of real estate market and the terms of the leases
previously negotiated by The Meyer Group, Ltd.
We recognize that the landlord generally assumes responsibility for the commission
of The Meyer Group, Ltd. and of any other licensed real estate broker whose
cooperation is solicited. We will therefore cooperate and work with The Meyer
Group, Ltd. in its efforts to obtain its commission. In that regard, we shall inform
the landlord of The Meyer Group, Ltd.'s representation of us before entering into
any lease agreement. We shall also recognize and confirm The Meyer Group, Ltd.
as the procuring cause of and in the said transaction. We shall further require, as a
condition of entering into a lease agreement, that the landlord undertake an
obligation to pay a commission (in accordance with typical market rates) to The
Meyer Group, Ltd., which obligation shall be set forth in the lease agreement or in
a written side agreement.
Subsequent to the expiration or termination of this agreement, we will continue to
recognize The Meyer Group, Ltd. as our exclusive broker and the procuring cause
in accordance with the provisions hereof, with respect to any prospective locations
that have been submitted by The Meyer Group, Ltd. during the term of this
agreement. In addition, The Meyer Group, Ltd. will have thirty (30) days after
expiration or termination of this agreement to provide to us a list of those
prospective locations submitted to us during the term of this agreement.
Any controversy or claim arising out of or relating to this contract, or the breach
thereof, shall be settled by arbitration administered by the American Arbitration
Association in Washington, D.C., in accordance with its applicable rules, and
judgment on the award may be entered in any court with jurisdiction thereof.
If the foregoing accurately sets forth our agreement, please sign and return the
enclosed copy of this letter. The parties whose signatures appear below represent
and warrant that they are duly authorized to enter into and execute this agreement.
JX 27. (emphasis added). As the underlined text discusses what should occur after the Agreement
ends, the parties refer to this text as the “extension clause.” The Agreement was signed on May
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5, 2004, by Mr. Meyer on behalf of Meyer Group and then-Chairman Omas on behalf of PRC.
JSF ¶¶ 4-5.
PRC’s Original Lease of April 7, 2005, Procured by Meyer Group
On April 7, 2005, with Meyer Group’s aid, PRC entered into a lease agreement with
BP/CRF for approximately 29,102 square feet of rentable office space located at 901 New York
Avenue, NW, Washington, D.C. (“Original Lease”). JSF ¶ 10; JX 29. The Original Lease covered
the entire second floor of the west tower of the Building and a portion of the second floor of the
east tower. JX 29 at 4. The Original Lease specified that the landlord recognized Meyer Group as
the broker procuring this lease, and that Meyer Group would receive a commission pursuant to a
separate agreement. Id. at 43.
As contemplated by the Agreement, Plaintiff received a commission from the landlord,
BP/CRF, for this lease. JSF ¶ 9; JX 28. Meyer Group and the landlord entered into a separate
Commission Agreement on March 25, 2005, in anticipation of the signing of the Original Lease.
JX 28. This commission was $467,523.64, 4% of the aggregate lease value for the initial 10-year
term. JSF ¶ 13. Mr. Meyer also arranged for construction management services to be provided to
PRC by Peter Magellan for construction done as part of the move to the Building. JX 14.
Two law firms in the Building, Finnegan Henderson Farabow Garrett & Dunner, LLP
(“Finnegan Henderson”) and Goodwin Procter, LLP (“Goodwin Procter”), had encumbrances on
PRC’s leased space. JSF ¶ 15; JX 29 at 53-54. Finnegan Henderson had a right of first offer
(“ROFO”) on some of PRC’s space and Goodwin Procter had a “must-take” in its own lease that
required it to take some of PRC’s space in 2012. JSF ¶ 15. Finnegan Henderson communicated
with Meyer Group regarding removing the ROFO “such that PRC could sign a lease extension in
early 2009.” The ROFO was actually removed “in early 2012.” AJSF ¶¶ 45-46. While the
Original Lease’s termination date was in 2015, this lease included a provision giving PRC the right
to terminate the Original Lease early, effective June 30, 2012. JX 29 at 49. The timing of PRC’s
termination would have a “ripple effect” on the other tenants’ rights and obligations, as well as on
PRC’s ability to find new office space. JX 206 at 1.
Meyer Group’s Brokerage Services After the Original Lease
After signing the Original Lease on April 7, 2005, PRC behaved as if Meyer Group was
still its real estate broker. On August 17, 2005, PRC and the landlord entered into the first
amendment to the Original Lease for additional storage space. JX 32. Mr. Meyer was not asked
to assist with this amendment because the storage space agreement was ancillary and not a
transaction that warranted his involvement. Tr. 130:15-131-11 (Meyer).
Mr. Meyer continued working with PRC after the storage space amendment. In February
2006, Mr. Meyer presented a market survey of possible alternative spaces to PRC’s Messrs.
Williams and Sikora, and presented a second market survey at a meeting with them on November
28, 2006. JX 33, 35; Tr. 26:5-27:1 (Meyer). PRC was interested in potentially moving to another
office after the expiration or termination of the Original Lease. Mr. Meyer set up a building tour
for June 15, 2007 and provided a third market report on October 24, 2007. Tr. 31:18-33:2 (Meyer);
JX 47. On June 13, 2007, PRC’s Deputy Secretary Sikora emailed other PRC employees,
including Mr. Williams and Judy Grady, about the building tour, and referred to Meyer Group as
5
PRC’s “real estate broker.” JX 43 at 1; Tr. 31:5-17 (Meyer). On October 24, 2007, Meyer Group
presented a Mid-Year Office Market Report to PRC and arranged for presentations to PRC’s Mr.
Williams, Mr. Sikora and former Chairman Blair on November 6, 2007, by four real estate
companies about potential properties for PRC to lease. JX 47; JX 48; Tr. 34:3-35:4 (Meyer).
Mr. Meyer’s brokerage work on behalf of PRC continued into 2008. On January 23, 2008,
PRC’s Deputy Secretary Sikora emailed his colleagues, including Ms. Grady, stating that “our
broker, Bill Meyer” had informed him that Goodwin Procter might wish to obtain PRC’s space
sooner than expected, and that Mr. Meyer suggested viewing two new properties. JX 51.
Third Floor Space From Powell Goldstein/Bryan Cave
In November 2008, Mr. Meyer learned that the law firm Powell Goldstein was planning
to merge with Bryan Cave, potentially making new space in the Building available for PRC to
lease. AJSF ¶ 31; JX 55. This space included the entirety of the third floor of the Building, and
the east side of the fourth and fifth floors. JX 58 at 2. On November 12, 2008, Mr. Meyer sent an
inquiry to Bryan Cave’s real estate broker about this space, stating that he represented PRC. AJSF
¶ 35; JX 57; Tr. 40:22-41:22 (Meyer). This exchange was forwarded to PRC’s Mr. Sikora. At the
end of November 2008, Powell Goldstein’s brokers sent Mr. Meyer information about the space.
Mr. Meyer forwarded this information to PRC and discussed it with Mr. Sikora. JX 58-59; Tr.
42:3-19 (Meyer). On December 2, 2008, Mr. Meyer lead PRC staff members on a tour of the
Powell Goldstein space. JX 60; Tr. 42:20-43:23. Bryan Cave and Powell Goldstein merged on
January 1, 2009. AJSF ¶ 37.
In January 2009, Mr. Meyer was invited by Powell Goldstein’s brokers to a meeting of
brokers who represented different tenants in the Building who were interested in the Powell
Goldstein space. JX 61; Tr. 44:5-45:17 (Meyer). The purpose of this meeting was to discuss with
Mr. Storrs, the landlord’s Vice President, adjusting the various overlapping tenants’ expansion
rights while facilitating the subletting of Powell Goldstein’s space. JX 61. Mr. Meyer was
instrumental in setting up the meeting, and the brokers for the various law firms were interested in
talking to him because they knew that PRC was looking for new space. Tr. 44:19-45:9 (Meyer).
Mr. Meyer gave PRC an update on the meeting results immediately after the meeting occurred.
Id. at 45:18-22.
On February 12, 2009, a broker from CB Richard Ellis (“CBRE”) emailed PRC’s Mr.
Williams and offered floor plans of the Powell Goldstein space for him to review. JX 62. This
email informed Mr. Williams that Powell Goldstein was vacating space in the building on the 3rd,
4th and 5th floors. Id. CBRE continued: “[t]heir lease term goes through March 2015, which almost
matches yours (8/2015) though you do have a mutual termination right in June 2012.” Id. PRC’s
Mr. Williams rebuffed the CBRE broker and informed him that “our Broker, Bill Meyer” had
already taken PRC on a tour of the space and “ha[d] already opened discussions with the other
parties on the opportunities that may exist.” Id.
On February 13, 2009, Powell Goldstein’s broker sent Mr. Meyer a proposal for PRC to
sublease the third floor area of the Powell Goldstein space, but this proposal did not include the
fourth and fifth floors. JX 63. In Powell Goldstein’s proposal, Mr. Meyer is referred to as PRC’s
broker. Id. at 3. Mr. Meyer forwarded this proposal to PRC’s Mr. Sikora and suggested discussing
it. JX 64. This proposal was not pursued further, but the record does not indicate why.
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Goodwin Procter Work in 2009
In March and April 2009, Mr. Meyer attempted to resolve Goodwin Procter’s “must-take”
encumbrance on PRC’s behalf. This “must-take” required Goodwin Procter to take some of PRC’s
leased space in 2012. JSF ¶ 15. Mr. Meyer communicated with Goodwin Procter’s broker and
Mr. Storrs of BP several times about the status of the “must-take” in March and April 2009. JX
68. These emails were forwarded to PRC’s Mr. Sikora. Id.
Additional Work in 2009
Mr. Meyer arranged a tour of a property at 455 Massachusetts Ave, NW on May 29, 2009,
for PRC. JX 70-71; Tr. 49:8-50:5 (Meyer). This tour was rescheduled to June 16, 2009. JX 73.
PRC’s Ms. Grady then reached out to Mr. Meyer and asked him to schedule another tour of this
building for then-Chairman Blair on June 30, 2009. JX 75. On June 19, 2009, Ms. Grady sent an
email inviting several PRC staff members to the June 30, 2009 tour, including Ruth Goldway, who
became Chairman in August 2009. JX 79. In this email, Ms. Grady referred to Mr. Meyer as
“PRC’s real estate broker.” Id.
Major Personnel Changes at PRC: July – September 2009
On July 2, 2009, Mr. Williams retired as Secretary and Chief Administrative Officer from
PRC and Mr. Sikora left within a very short time thereafter. JX 72 at 2;Tr. 51:9-13 (Meyer). These
departures lead to a new appointee, Ms. Goldway, becoming Chairman of PRC in August 2009,
and Ms. Grove assuming Mr. Williams’ position as Secretary and Chief Administrative Officer in
September 2009. JSF ¶¶ 16-17. When PRC hired Ms. Grove as Secretary and Chief
Administrative Officer in September 2009, she was tasked with reviewing all of PRC’s contracts
for various services. Tr. 207:18-24 (Goldway). Chairman Goldway testified that Ms. Grove
informed her that PRC’s records were “in dismal shape, and that there were very few records for
contractual services that we were under.” Tr. 209:11-18 (Goldway). In a similar vein, Ms. Grove
testified that all of PRC’s files were paper files and not well organized. Tr. 386:2-7 (Grove).
Ms. Grove had no knowledge of the Agreement and was concerned that PRC had
previously entered contracts that “either weren’t efficient or weren’t well-managed.” Tr. 388:1-11
(Grove). Ms. Grove testified that Ms. Grady, who was one of the few original PRC employees
remaining, did not tell her that Meyer Group was PRC’s real estate broker. Id. 137:10-15.
Chairman Goldway was also unaware of PRC’s Agreement with Meyer Group. After Mr.
Williams left in June 2009, Ms. Grady became Mr. Meyer’s point of contact at PRC for a few
months until Ms. Grove came on board in August 2009, when Ms. Grove became the primary PRC
contact for Mr. Meyer. JX 72.
On September 1, 2009, PRC’s Chief Counsel, Michael Ravnitzky, forwarded an email to
Chairman Goldway that he had received from Meyer Group’s Mr. Rayborn about a possible
property tour. Tr. 204:4-5 (Goldway); JX 89. The subject line of this email was “meeting with
real estate broker.” Id. In September of 2009, Mr. Meyer met with Chairman Goldway and Ms.
Grove. To Mr. Meyer, this was a meeting to get them up to speed on PRC’s situation in 901 New
York Ave, NW, and on the status of buildings PRC was considering. Tr. 58:10-25 (Meyer).
Because PRC had the option to terminate the Original Lease early, effective June 30, 2012, PRC
was interested in advance planning for any possible move. JX 29 at 49. Ms. Grove testified that
7
she told Mr. Meyer that while he may have had a prior relationship with PRC, it did not mean that
he would have one going forward. Tr. 162:1-10 (Grove).
Mr. Meyer did not consider his meetings with Ms. Grove and Chairman Goldway, or the
services that he provided, to be an interview or marketing attempt, but instead part of his continuing
responsibility as PRC’s broker. See Tr. 66:5-11. Despite having received an email as recently as
September 1, 2009, describing Mr. Meyer or Meyer Group as PRC’s broker, and knowing that
PRC’s records were poor, Chairman Goldway did not attempt to ascertain whether or not Mr.
Meyer had a contract with PRC. See JX 89. Neither Chairman Goldway nor Ms. Grove contacted
their predecessors Mr. Williams or Mr. Sikora to find out what relationship PRC had with Mr.
Meyer. Tr. 137:10-18 (Grove). Ms. Grove testified that when Mr. Meyer came in for his first
meeting with the newly appointed Chairman, in September 2009, Ms. Grady told her that Mr.
Meyer was a broker who had worked on the past lease. Tr. 389:21-390:4 (Grove).
Also in September 2009, Ms. Grove met with a representative of CBRE brokerage who
dropped by unannounced. Tr. 142:11-21 (Grove).
Meyer Group’s Brokerage Services from Late November 2009 to Termination on March 29,
2010
Mr. Meyer met with Ms. Grove on November 24, 2009. JX 97; 99. In preparation for this
meeting, Mr. Meyer offered to perform a lease audit for PRC free of charge. JX 97. Meyer Group
did perform a lease audit, which is dated December 8, 2009. JX 106.
Previously, PRC had been having plumbing issues in the Commissioners’ bathrooms and
in December 2009, temperature issues arose. JX 115 at 4; JX 113; Tr. 153:23-155:24 (Grove); JX
121; Tr. 159:12-160:6. Mr. Meyer received a call from Ms. Grove at 7:30 a.m. on December 11,
2009, about the temperature issues. JX 115 at 2. Mr. Meyer received emails from Ms. Grove and
Ms. DeRosa regarding these issues and forwarded them to Mr. Magellan, who had previously
provided construction services for PRC. Mr. Magellan sent a long email back stating that Ms.
Grove “has the propensity to blow things out of proportion and only tell her side of the story.” Id.
Mr. Magellan also emailed Mr. Meyer and suggested that BP check in with the Commissioners
and not Ms. Grove. Id. at 1. Mr. Meyer then forwarded the entire email chain to Ms. Grove. Id.
For his part, Mr. Meyer was confused as to why he was being called on to address facilities
issues, but as an exclusive real estate broker, he did work for clients on an ongoing basis and felt
that as PRC’s real estate broker, he should contact Mr. Magellan about the problems. Tr. 63:13-
64:19 (Meyer). Mr. Meyer also communicated with Mr. Storrs, the landlord’s Vice President,
about PRC’s frustration regarding facilities issues and continued following up into January 2010.
JX 125-130. Neither Chairman Goldway nor Ms. Grove found Mr. Meyer useful in resolving
these concerns. Ms. Grove testified that she called upon Mr. Meyer due to his work on the Original
Lease and because she thought he was trying to win their business. Tr. 151:10-152:3 (Grove).
Ms. Grove also asked Mr. Meyer for help with locating space. Tr. 146:3-14 (Grove). In
an email dated December 31, 2009, she told Mr. Meyer that they needed to “discuss exploring
other lease options beginning in January.” JX 124. This request was made after Mr. Meyer
forwarded to Ms. Grove an update from the landlord about the plumbing situation.
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On January 7, 2010, Mr. Storrs of BP sent Mr. Meyer a proposal for the extension of PRC’s
lease term. JX 131; Tr. 68:15-23. The proposal expressly named PRC as Mr. Meyer’s client and
contained a provision that PRC’s broker would receive a commission if the extension were
executed:
Brokerage Commission: After full execution and approval of a lease amendment
extending Tenant’s term based on the terms outlined herein, Landlord shall pay a
market leasing commission to Broker based on the additional lease value as
outlined in a separate agreement.
JX 131. This proposal was for the same space that eventually became the subject of the Seventh
Amendment to the Original Lease – 29,102 square feet on the second floor east and west tower of
901 New York Ave, NW – a transaction at issue here. Compare JX 131 with JX 232. After
receiving the proposal from Mr. Storrs, Mr. Meyer forwarded the proposal to his colleague, Mr.
Tekle on January 12, 2010, and asked him to “[p]repare numbers.” JX 138. When Mr. Storrs
emailed Mr. Meyer to follow up about the lease extension proposal, on January 21, 2010, Mr.
Meyer informed Mr. Storrs that PRC was “out looking at space,” and that that neither Mr. Meyer
nor PRC was convinced that it was “the deal of the century” because the “[m]arket is soft but your
proposal doesn’t seem to reflect that.” JX 146. Mr. Storrs responded that it was a “pretty sweet”
deal and indicated that Mr. Meyer would not get a better price. Id.
Mr. Meyer forwarded this proposal to Ms. Grove and suggested they meet and discuss it.
JX 131 at 1. Ms. Grove testified that she did not respond to the proposal because she had not asked
for it. Tr. 402:1-10 (Grove). Nonetheless, Ms. Grove continued to meet with Mr. Meyer, and on
January 12, 2010, requested that they sit down and lay out a schedule for further building tours.
JX 139. Ms. Grove could not explain why she did not tell Mr. Meyer to stop holding himself out
as PRC’s broker if she was merely giving him a trial and was not “sold” on him. Tr. 167:7-168:12
(Grove). The Court finds that while Ms. Grove was unaware of the Agreement, she accepted
services from Mr. Meyer knowing that the landlord of 901 New York Ave, NW, BP, considered
Mr. Meyer to be PRC’s broker and that Mr. Meyer expected to receive a commission if he secured
a lease in BP’s building for PRC.
On January 14, 2010, and January 15, 2010, Mr. Meyer and Ms. Grove met to prepare for
tours of seven buildings with other PRC staff, including Chairman Goldway. JX 142-143; Tr.
70:25-71:17 (Meyer); Tr. 170:6-174:8 (Grove). Meyer Group also provided PRC with a market
survey. JX 145. These tours occurred on January 20, 2010, and Mr. Meyer followed up with Ms.
Grove on January 30, 2010, by emailing and requesting to meet with Ms. Grove to review the
properties that they had visited. JX 145, 151; Tr. 74:21-76:15 (Meyer); Tr. 175:3-21 (Grove).
Chairman Goldway was not satisfied with the options and information presented by Mr. Meyer
and testified that she “was never impressed with the ability of [Meyer Group] to explain the
situation we were in or the likelihood that we could sort out the lease.” Tr. 360:3-18 (Goldway).
On February 25, 2010, another meeting between PRC and Meyer Group occurred that
involved a presentation of a building located at 10th and G Streets, NW, a property that, according
to Mr. Tekle of Meyer Group, Ms. Grove had been asking about. JX 161.
On March 2, 2010, Mr. Meyer and Mr. Storrs, representing the landlord, discussed the
January 7, 2010 lease extension proposal covering the 29,102 square feet in the east and west
9
towers, including PRC’s desire for a longer lease term and tenant improvement funds to fix the
plumbing issues. JX 162. This discussion took place after Mr. Meyer had conversations with PRC
about BP’s January 7, 2010 lease extension proposal. Tr. 81:13-20 (Meyer).
In an email to other BP employees, dated March 3, 2010, Mr. Storrs noted that a proposal
had been sent to PRC and that he had talked with Mr. Meyer, who had indicated that PRC wanted
a longer term and requested that the landlord pay to fix the plumbing system. JX 162. Mr. Storrs
stated that he would ask Mr. Meyer to send a formal written counterproposal. Id. On March 17,
2010, Mr. Storrs emailed Mr. Meyer asking when Meyer Group would submit a counteroffer. JX
169. Mr. Meyer then quickly emailed Mr. Tekle asking “[c]an we work on a counter please?” Id.
On March 26, 2010, Mr. Tekle emailed Mr. Meyer to discuss items to put in the
counterproposal. Id. The record contains an unsigned draft counterproposal dated March 26, 2010
for leasing 29,102 square feet in the second floor east and west towers.3 JX 169 at 5-7; JX 170.
The draft counterproposal contains comments from the author in the text. JX 169 at 5-7, JX 170.
For example, in the provision describing the premises as 29,102 square feet, a comment asked
“HOW DO WE CHANGE TO 35,000 SF?” JX 169 at 5-7, JX 170. The draft counterproposal is
not attached to any email showing it was sent to the landlord. Mr. Meyer testified that he submitted
the counteroffer to BP. Tr. 80:17-19 (Meyer). However, Mr. Storrs was shown the counterproposal
during his deposition and testified that he did not receive it. JX 243 at 22:1-17. When Mr. Tekle
was deposed on October 25, 2013, he did not know if the counterproposal had been submitted to
the landlord and could not recall preparing it. JX 244 at 34:3-12. There are no contemporaneous
documents in the record showing the transmission of Meyer Group’s counterproposal to BP or
BP’s response to Meyer Group’s counterproposal.
Mr. Storrs acknowledged that negotiations for the Seventh Amendment to the Original
Lease began in 2009, when Mr. Meyer was representing PRC, that he was interacting with Mr.
Meyer as PRC’s broker for the lease extension, and that he understood that Mr. Meyer expected a
commission out of the deal.4 JX 243 at 19:8-22:13.
Termination and Post-Termination Events
Ms. Grove met with a representative of CBRE brokerage who dropped by unannounced in
September 2009. Tr. 142:11-21 (Grove). The exact date PRC hired CBRE is not in the record,
but at some point before terminating Meyer Group, Chairman Goldway, Ms. Grove, and the
director of PRC’s Office of General Counsel had a meeting with a representative from CBRE and
were very impressed. Tr. 366:6-20 (Goldway). In a March 26, 2010 email, Mr. Storrs informed
other BP employees that he had run into a CBRE broker at the “GWCAR Awards,” who mentioned
that he had been hired by PRC to represent them going forward. JX 171. Mr. Storrs stated that
this was “[g]ood news,” although the CBRE broker “may try even harder than Bill to move them.”
Id. Ms. Grove testified that PRC hired CBRE before Meyer Group’s Agreement was terminated
3
The counterproposal also bears the date April 25, 2012.
4
Mr. Storrs did not testify at trial, but his deposition, taken on March 26, 2013, is in the
record. JX 243.
10
so that PRC would have “a path forward.” Tr. 190:4-6 (Grove).5 PRC and CBRE did not enter
into a written brokerage agreement until August 5, 2011, over a year and four months after Meyer
Group’s Agreement was terminated. Ms. Grove believed that CBRE brought more resources to
the table than Mr. Meyer, as she stated that she thought PRC would be better served by a larger
agency. Tr. 403:10-22 (Grove).
On March 29, 2010, three days after Meyer Group created the draft counterproposal for the
lease extension for PRC in the building, Ms. Grove terminated the Agreement in an email:
I want to thank you for the real estate brokerage services your firm has provided.
At this juncture, the Postal Regulatory Commission has determined that working
with the United States Postal Service facilities team and a larger firm that they have
recommended best meets our needs. For this reason we will no longer be using your
services. I apologize for having to inform you by email. We attempted to contact
you by phone, but I understand you are skiing. Please don’t hesitate to contact me
if you have any questions or concerns.
JX 172.
The next day, on March 30, 2010, Mr. Meyer called Ms. Grove and informed her that under
the Agreement, PRC was obligated to work with Meyer Group post-termination for properties that
Meyer Group had submitted. Tr. 83:14-84:9 (Meyer). This was the first time Ms. Grove became
aware of the Agreement. Tr. 405:1-5. Mr. Meyer sent Ms. Grove a copy of the Agreement, and
on March 31, 2010, Ms. Grove responded that her March 29, 2010 email served as written
notification that PRC was terminating “any and all representation agreements we may have with
Meyer Group.” JX 176.
On April 6, 2010, Mr. Meyer faxed Ms. Grove a list of properties he felt had been
previously submitted to PRC during the term of the Agreement (“protective list”). JX 182; Tr.
84:12-24 (Meyer). This list included the Building and 25 other properties, which were listed on
the market survey Meyer Group had given to PRC during the January 14, 2010 meeting. Although
Mr. Meyer attempted to communicate further with PRC about the Building, PRC made clear that
it did not think Meyer Group was entitled to any further compensation. JX 197 at 2.
PRC’s Formal Engagement of CBRE on August 5, 2011, and the Lease Extension of January
13, 2012
On March 31, 2010, in an email to other brokers representing tenants in the Building,
Goodwin Procter’s broker discussed lease negotiations between BP and PRC and stated:
5
Ms. Grove was asked on cross-examination:
Q: You didn’t want to be without a real estate broker, right?
A: I would say that we were looking for a path forward, and that at that time, our
determination was that – that Bill was not the best to serve our needs.
Tr. 190: 7-11 (Grove).
11
Earlier this week, I had a lengthy meeting with Boston Properties relative to the
Postal Rate Commission (PRC) and the timing/status of the Landlord’s negotiations
with PRC. As you know from our initial discussions in February, 2009 and
subsequent, these muti-party transactions include the Landlord’s lease extension
with PRC, which must occur in order for the Landlord to convert Floor 4 East to a
prime lease with [Redacted]. Unfortunately, PRC has had a change in
Administrative Director which is leading to a change in real estate broker – selected
new broker but must get paperwork completed, do research, formulate objectives,
etc. BP indicates that this process and the hopeful future PRC lease extension may
realistically take another 6 months and up to 12 months due to such changes.
JX 179. According to Mr. Storrs, the change in “brokerage representation, for PRC in 2010,
delayed [PRC’s] ability to respond to any proposals we had issued. It was my understanding that
they had terminated their agreement with The Meyer Group and had engaged CBRE as their
broker. And until that process was complete, they could not – weren’t willing to engage in any
further negotiations.” JX 243 at 22:4-13.
On November 15, 2010, CBRE presented a proposal on behalf of PRC for the second floor
premises, the site of the Original Lease, to Mr. Storrs. JX 201 at 1. CBRE worked with BP on
behalf of PRC and on April 1, 2011, a year and two days after Meyer Group’s brokerage agreement
had been terminated, BP/CRF sent a counterproposal to PRC via CBRE. JX 205 at 1. Mr. Storrs
stated that this counterproposal was coming “[a]t long last.” Id. Chairman Goldway described
this counterproposal as “the culmination of the work we did” and “the beginning of a reasonable
lease agreement we could settle on.” Tr. 375:20-376:11 (Goldway).
On May 25, 2011, roughly a year and two months after Meyer Group’s Agreement was
terminated, PRC and BP/CRF signed a letter of intent to extend the term of the Original Lease
through August 31, 2022. JX 208. This letter of intent stated that the premises would remain as
29,102 square feet “representing the entire second (2nd) floor of the West Tower and a portion of
the second floor of the East Tower.” Id. This is the identical space covered by the Original Lease.
Compare JX 29 with JX 208.
Although the May 25, 2011 letter of intent stated that the landlord was required to prepare
a lease amendment, the Original Lease was not amended until January 13, 2012, over seven months
later. The letter of intent and the January 13, 2012 amendment are similar; the only differences
are the addition of contract boilerplate and detail to the key terms. This delay in executing the
Seventh Amendment to the Original Lease after the letter of intent was not due to changes to the
substance of the lease extension described in the May 25, 2011 letter of intent, or negotiation
between BP, CBRE and PRC. Rather, this delay was due to the need to resolve the “must-take”
and “ROFO” encumbrances of the law firms, as well as PRC’s slow pace, and the need to have the
amendment approved by BP’s lender. JX 243 at 24:10-14, 26:7-20. Chairman Goldway had to
contact someone she knew at BP to ask BP to focus on completing the lease extension.6
6
Chairman Goldway testified:
And a light went on in my head and I said, my father’s best friend’s son is the senior
vice president at Boston Properties in New York, I hadn't made the connection
between that, and I said, I’ll call him. And I called him. And with that personal call,
12
Furthermore, BP’s Mr. Storrs noted that BP could not have asked one of the law firms to waive its
rights before PRC signed the letter of intent, which had taken a long time. JX 213. Mr. Storrs also
thought the delay was due to PRC moving slowly and the change in brokers. JX 243 at 30:6-14.
PRC did not sign a written agreement with CBRE engaging CBRE as its broker until over
a year after PRC terminated Meyer Group -- August 5, 2011 -- after the letter of intent was signed.
JX 215. This agreement authorized CBRE to “exclusively assist and represent PRC in any new
lease or lease extension/lease restructuring discussions . . . .” Id. The agreement stated that
CBRE’s exclusive representation was for the period of November 1, 2010, to either the earlier of
December 31, 2012, or the payment of a commission, unless terminated or extended by the mutual
written agreement of the parties. Id. Either CBRE or PRC could terminate the agreement
unilaterally upon 30 days written notice. Id.
The agreement between PRC and CBRE also contained an indemnification provision,
which stated:
PRC warrants and represents that it has neither engaged, nor dealt with any other
broker or finder other than CBRE with respect to PRC’s office real estate
requirement in Washington, D.C. referenced herein, and further warrants and
represents that PRC has taken any steps it believes reasonable or necessary to
terminate any representation agreement or brokerage agreement by and between
PRC and The Meyer Group, Ltd. and/or William J. Meyer dated on or about May
5, 2004 prior to the Effective Date of this Agreement, and believes in good faith
that neither The Meyer Group, Ltd., nor William J. Meyer, is entitled to any fees or
commissions in connection with PRC’s office real estate requirement in
Washington, D.C. referenced herein.
Notwithstanding the foregoing, PRC and CBRE acknowledge and agree that The
Meyer Group, Ltd. and/or William J. Meyer might make a claim for compensation
in connection with PRC’s office real estate requirement in Washington, D.C.
referenced herein, even though both parties reasonably believe that any such claim
would be unwarranted and unfounded. If The Meyer Group, Ltd and/or William J.
Meyer and/or any other person or entity affiliated with The Meyer Group, Ltd.
and/or William J. Meyer make(s) any claim against PRC and/or CBRE and/or any
landlord with which PRC enters into a lease or lease extension in connection with
PRC’s office real estate requirement in Washington, D.C. referenced herein for
which CBRE has been paid a Commission in connection therewith under the terms
of this Agreement, then CBRE shall indemnify and hold PRC harmless from any
and against any liability or damages (excluding attorney’s fees and costs of defense)
resulting from any such claim; provided, however, in no event shall CBRE be liable
he then made sure that the office in Washington, D.C. started paying attention to
our lease negotiations and sitting down with the other attorneys and figuring out
what they could arrange to get the other various law firms to give up space and for
them to get their attorneys to work on this as a priority, et cetera.
Tr. 372:11-373:7 (Goldway).
13
for any amounts in excess of the amount of the Commission actually paid to and
received by CBRE in connection with the transaction at issue. Notwithstanding the
foregoing, PRC and CBRE acknowledge and agree that each party shall be
responsible for its own defense of any such claim and any fees or costs, including
any and all attorneys’ fees, associated therewith.
JX 215 at 2-3.
Between June and December 2011, PRC and the landlord signed a set of five lease
amendments that extended the Original Lease’s termination date, in order to allow PRC to remain
in the space until it executed the agreement extending the Original Lease. JX 210, 221-222, 224,
227. In November 2011, CBRE reported that according to Mr. Storrs, the Finnegan Henderson
encumbrance was taken care of, but BP had been waiting for three weeks to hear about the
Goodwin Procter “must-take” and expected results shortly. JX 223. After that, BP needed to get
approval from its lender, JP Morgan. Id. In an email to Ms. Grove, dated December 21, 2011,
Mr. Storrs stated that additional time was still needed to obtain BP/CRF’s lender’s approval of the
lease extension. JX 226. The Seventh Amendment to the Original Lease was executed on January
13, 2012. JX 232.
The Seventh Amendment to the Original Lease covered the same space PRC was
occupying and extended the term of the Original Lease to August 31, 2022. It also provided PRC
with a construction allowance and a right of first offer on space on the 2 nd floor and lists PRC’s
broker as CBRE. Id. A right of first offer was included in Meyer Group’s draft proposal, which
proposed that the landlord would give PRC the right of first refusal “on any contiguous space.”
JX 169. Meyer Group’s draft counterproposal had also included a tenant improvement allowance
of $70 per rentable square foot, and had similarly extended the Original Lease until two months
earlier -- June 30, 2022. The proposal sent by Mr. Storrs to Mr. Meyer had proposed extending
the Original Lease term to February 28, 2017, and did not include a construction allowance or the
right of first offer on the second floor. See JX 131. Neither the Seventh Amendment to the
Original Lease, nor BP’s proposal, nor Meyer Group’s counterproposal,7 changed PRC’s rented
space within the building or the amount of PRC’s rented square footage.
Subleasing Bryan’s Cave Fourth and Fifth Floor Space
During this time period, between May 15, 2011, and July 1, 2012, PRC also signed three
subleases with Bryan Cave. The first sublease was signed on May 15, 2011, and was for 1,500
square feet on the fifth floor of the east tower of the Building. JSF ¶ 18; JX 207. The rental period
ended on June 30, 2012. This sublease specifically provided that CBRE would receive a 3%
commission paid by Bryan Cave and that PRC and Bryan Cave had not dealt with any other brokers
other than Bryan Cave’s broker, Jones Lang LaSalle (“JLL”), and CBRE. JX 207 at 12. Bryan
Cave and PRC agreed to indemnify each other against claims “arising out of any dealings had by
the indemnifying party with any broker other than JLL and CBRE.” Id. at 12-13.
7
Meyer Group’s draft counterproposal provided for 29,102 square feet on the second floor
east and west Tower and included the draft comment “HOW DO WE CHANGE TO 35,000 SF?”
JX 170 at 1.
14
The second Bryan Cave sublease was an amendment to the first sublease, and was signed
on August 16, 2011. JSF ¶ 23; JX 220. The second Bryan Cave sublease gave PRC short-term
(from August 16, 2011 to October 31, 2011) “swing space” on the fourth floor of the east side of
the Building. JX 220. The second Bryan Cave sublease contained a similar indemnification
provision, but stated that “[n]o commissions shall be payable in connection with this First
Amendment.” Id. at 3. The third Bryan Cave sublease was signed on July 1, 2012, and extended
the rental period for the fifth floor space until March 29, 2015. JSF ¶ 27; JX 235. None of the
Bryan Cave subleases or the Seventh Amendment to the Original Lease recognized Meyer Group
as PRC’s broker or provided that Meyer Group would receive commissions from these
transactions.
Work Performed by CBRE
Besides negotiating with BP regarding BP’s April 1, 2011 counterproposal and the May
25, 2011 letter of intent for the Seventh Amendment to the Original lease, and the Bryan Cave
subleases, CBRE performed additional real estate brokerage work for PRC. CBRE represented
PRC regarding the series of lease amendments that extended the Original Lease to accommodate
PRC until the Seventh Amendment could be signed. Tr. 407:11-18 (Grove). CBRE also showed
PRC additional properties. Id. at 407:15-18. In the end of 2011, CBRE helped PRC reconfigure
its existing square footage to contain a larger number of offices, which involved obtaining a verbal
commitment from BP that PRC could stay in the building, and arranging for BP to be the project
manager for the reconfiguration construction. Id. at 408:1-23. CBRE also helped PRC look at
options for leasing contiguous space, but the price was too high, and PRC decided instead to pursue
the reconfiguration. Id. at 407:19-25. CBRE found PRC space on another floor of the building to
occupy while the reconfiguration was taking place. Id. at 409:2-4.
Expert Testimony
Plaintiff’s expert at trial was David Ellis Kaplan, the founder of Strategic Realty Advisors.
Tr. 214:10-24 (Kaplan). Mr. Kaplan is an attorney and a licensed real estate broker in Washington,
D.C., Maryland, and Virginia. Id. at 214:25-215:1, 220:23-25. Mr. Kaplan works 100% of the
time on behalf of commercial office tenants and has worked in the commercial real estate field for
29 years. Id. at 215:13-216:14. Mr. Kaplan was admitted as an expert in commercial real estate
lease transactions in the District of Columbia. Id. at 225:18-21. Mr. Kaplan testified that when
there is an exclusive brokerage agreement, the broker signatory to that agreement is automatically
the procuring cause of transactions he or she submitted to the client. Id. at 241:6-10.
According to Mr. Kaplan, after a broker has been terminated by the tenant, the brokerage
agreement’s extension clause would permit the broker to receive a commission on a transaction he
submitted for a reasonable period of time. Mr. Kaplan defined such a reasonable period of time
as the duration of the balance of the initial lease term, plus a year or two thereafter. Id. at 244:5-
245:17. Here, the lease term had been extended through August 31, 2015, meaning that, in Mr.
Kaplan’s view, Meyer Group would be entitled to commissions for leases executed six or seven
years after the Agreement was terminated in March 2010. Furthermore, this temporal limitation
would apply to any real estate service the broker provided within the building, including subleases
and lease extensions, as long as the broker had originally “submitted” the building to his client,
the tenant. Id. at 246:21-247:9.
15
Mr. Kaplan testified that typically, the landlord or landlord’s agent pays the tenant’s
broker’s commission, which is calculated as a percentage of the gross value of the lease over the
entire lease term. Id. at 228:19-229:8. According to Mr. Kaplan, 3 to 4 % was the market rate for
a broker commission in 2012. Id. at 229:9-15. Mr. Kaplan opined that tenant brokers’
relationships with their clients do not terminate upon the signing of a lease by the client, based
upon his experience. Id. at 232:7-24. In Mr. Kaplan’s opinion, the language “submitted” or
“presented” in brokerage agreement is broad and “might be as modest a step as including [a]
building in a survey, it might be a building that you toured, it might be a building that you
negotiated on, but it's very broad. Anything that was in that -- any survey that you provided to your
tenant, or discussed in emails, would qualify as being submitted.” Id. at 235:7-12. Mr. Kaplan
further opined that forwarding a landlord’s proposal to a client would constitute “submitting a
property.” Id. at 235:11-18.
On cross-examination, Mr. Kaplan stated that the language in the Agreement was typical
in the real estate industry. However, he acknowledged that the Agreement was the only agreement
he had seen over the course of his 29-year career that paired very broad “submitted” language with
no stated temporal limitation governing how long after termination a commission could be
received for work done pre-termination. Id. at 272:21-273:6. Mr. Kaplan also acknowledged that
his own form brokerage agreement includes a temporal limitation, but he did not identify what that
limitation is. Id. at 273:13-19.
Defendant’s expert, James Warkentin, has been a real estate broker for 45 years and holds
the exclusive Counselor of Real Estate designation from the National Association of Realtors. Tr.
424:24-425:15 (Warkentin). Mr. Warkentin is currently licensed in Virginia and was formerly
licensed in Washington, D.C. and Maryland. Id. at 425:16-19. Mr. Warkentin has also been
quoted or interviewed by numerous publications, such as “Fortune, Money Magazine, New York
Times, Wall Street Journal, Washington Post, the old Washington Star, [and] Kiplinger
Newsletter,” and has done numerous speeches and seminars. Id. at 425:20-426:23.
Mr. Warkentin’s area of specialty is residential real estate and commercial investment
work. Id. at 436:16-21. In the course of his career, he has negotiated fewer than a dozen
commercial office leases and none for tenants. Id. at 439:7-12. Mr. Warkentin does not consider
himself an expert in commercial real estate transactions in the District of Columbia, and his basis
for stating expert opinions about the instant transaction was based upon conversations he had with
other brokers. Id. at 439:13-441-9. The Court asked Mr. Warkentin what in his background,
education or experience qualified him to be an expert in general commercial real estate brokerage
agreements in the District of Columbia. Id. at 449:24-450:22. Mr. Warkentin answered that
having taught a seminar called “Innovative Fee Techniques” about how to create an agreement
with a client 15 times, having had five weeks of specialized coursework from 1977-1983, while
studying for a Certified Commercial Investment Member degree,8 and having written his own
agreements for commercial investment work in Northern Virginia provided him such expertise.
Id. at 450:23-451:25. In terms of the “representation” aspect, he discussed work he had done
assembling partnerships for commercial investment.
8
Mr. Warkentin completed all coursework for this degree, but did not receive this degree.
Tr. 446:14-20.
16
After conducting voir dire, Plaintiff objected to Mr. Warkentin’s qualification as an expert,
arguing that he had “no stated experience in commercial lease transactions in the District of
Columbia . . . .” Id. at 441:13-18. Defendant’s counsel represented that it had been “a Herculean
task” to locate a Washington, D.C. tenant representative willing to testify against another
Washington, D.C. tenant representative, and Plaintiff’s counsel did not dispute this. Tr. 444:16-
445:1. Neither party elicited testimony from the experts contradicting this difficulty in locating
experts.
Based upon Mr. Warkentin’s candor, demeanor, and longstanding experience in local real
estate, and his repeated teaching of a seminar on creating agreements, as well as the apparent
difficulty in retaining opposing experts in this arena, the Court determined it would be helpful to
hear Mr. Warkentin’s views. Ultimately, the Court admitted Mr. Warkentin as an expert in
commercial real estate brokerage agreements and representation in the Washington, D.C.
metropolitan area.
Mr. Warkentin testified that a month-to-month exclusive commercial real estate brokerage
agreement that “goes on forever” would be an abusive agreement and that District of Columbia
regulations impose a 90-day termination date, in a scenario where no termination date is set forth
in such an agreement. Id. at 462:8-14. According to Mr. Warkentin, a 6-to-12 month performance
protection period, which is how he referred to an extension clause, is “quite customary” and
balances the broker’s and client’s interests. Id. at 465:15-466:5. However, he stated that “[t]here
may be circumstances where a year or even two years would be reasonable,” but he found it
difficult to think of any. Id.
Mr. Warkentin also discussed how brokerage is a risk-filled business and that each broker
decides how much risk to take on. Id. at 499:6-14. According to Mr. Warkentin, making the term
of the lease the broker’s performance protection period would force the tenant to either continue
to work with a broker that it no longer wanted or pay twice the brokerage costs when it completes
its next lease, which “denie[s] [tenants] the economic freedom to choose other representation
unless they endure significant costs.” Id. at 469:8-470:6. Mr. Warkentin found it troubling for a
brokerage agreement to define the broker as the procuring cause for any property submitted to the
client. Id. at 479:10-18. In Mr. Warkentin’s view, it would “put the client” in an “exquisitely
tight, uncomfortable, unreasonable box” to have an agreement with a broad submission paragraph,
an indefinite performance protection period, and a provision equating submission with procuring
cause. Id. Mr. Warkentin explained “submission” as “introduc[ing] a client to a property that they
were otherwise unaware of” and “creat[ing] a value” in this way. Id. at 478:16-18. Mr. Warkentin
testified that it was “troubling to claim submission of the property the client’s already in” because
the broker could not “tell them about it new” and was not “bringing value.” Id. at 478:21-23.
Mr. Kaplan and Mr. Warkentin agreed on certain issues. Mr. Warkentin agreed with Mr.
Kaplan’s report that each of the leased spaces in the Building was submitted to PRC “as that term
is commonly used in the context of real estate brokerage agreements.”9 Id. at 504:4-505:13. Mr.
Warkentin and Mr. Kaplan also agreed that further procuring cause analysis is not required when
a brokerage agreement has an extension clause that provides that a broker only has to “submit” a
property to be entitled to a commission. They also agreed that a procuring cause analysis is not
9
Neither expert’s report is in the record.
17
necessary when the agreement defines the broker as the procuring cause of the transaction. Mr.
Kaplan stated that, “[i]f procuring cause is defined in the agreement, [. . .], then by definition, the
first broker would be procuring cause under the terms of the agreement and under the extension
clause.” Tr. 327:15-18 (Kaplan). Finally, both experts also agreed that the language of the
brokerage agreement controls and would determine when the agreement ends. Compare Tr.
291:15-25 (Kaplan) with Tr. 506:12-16 (Warkentin).
Discussion
Jurisdiction
The Court has jurisdiction over this case. The Tucker Act provides, in relevant part, that
“[t]he Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or
against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act
of 1978, including a dispute concerning termination of a contract . . . .” 28 U.S.C. § 1491(a)(2)
(2012).10
Defendant’s Motion to Strike Plaintiff’s Exhibit 2
Defendant moves to strike Plaintiff’s Exhibit 2, a memorandum to “files” from “R.A.
Oliver” of PRC dated October 2, 2009. PX 2.11 The memorandum indicates that a telephone
conference between “PRC representatives Shoshana Grove, Judy Grady, and Rich Oliver and
Postal Service Representatives Mike Wolfe and Bill Ambrose” was held on September 30, 2009.
Id. During this conference, “the advisability of, and procedures for, investigating the acquisition
of new office space” and “the issues surrounding the plumbing problem that affected the
Commissioners’ [offices]” were discussed. Id. The document indicated that PRC was considering
investigating new space with “possible assistance from real estate professionals available from or
through the Postal Service . . . .” Id. At trial, the only testimony regarding this exhibit was from
Ms. Grove, who confirmed that Plaintiff’s Exhibit 2 appeared to be an internal PRC memorandum,
that the conference occurred, and that “the primary focus” was the plumbing issue, as well as a
desire to establish a “relationship of support” between herself and facilities officers at the Postal
Service. Tr. 138:18-140:14 (Grove). Plaintiff’s counsel asked Ms. Grove about the memorandum,
but she did not adopt its contents or explain who Mr. Oliver was. See id.
Defendant argues that this exhibit is hearsay and is not admissible based on Ms. Grove’s
testimony. Def. Mot. to Strike 3. Plaintiff counters that the memorandum itself states that Mr.
10
Plaintiff asserts that it submitted a certified claim pursuant to the CDA to Ms. Grove on
May 3, 2012. Am. Compl. ¶ 2. Defendant has not argued that Plaintiff failed to properly submit
a claim pursuant to the CDA.
11
At the conclusion of Plaintiff’s case, Plaintiff attempted to move into evidence Plaintiff’s
Exhibits 1-7. Tr. 328:24-329:5. Plaintiff then withdrew the request with respect to Exhibits 1, 3,
6, and 7. Plaintiff’s Exhibit 8 was not offered into evidence. The Court admitted Plaintiff’s
Exhibits 2, 4, and 5, but stated that Defendant could file a motion to strike after reviewing the
transcript. Id. at 332:2-5. Defendant filed this motion to strike, and Plaintiff does not oppose
Defendant’s motion with regard to Plaintiff’s Exhibits 4 and 5. Therefore, only Plaintiff’s Exhibit
2 is at issue.
18
Oliver was a PRC representative and it qualifies as the statement of a party opponent. Pl. Opp’n
to Mot. to Strike 2-3.
Federal Rule of Evidence (“FRE”) 801 defines hearsay as a statement made by a declarant
that is not made while testifying at the current trial or hearing and is introduced for the truth of the
matter asserted in the statement. Fed. R. Evid. 801(c). An opposing party’s statement is not
hearsay and is defined in FRE 801(d)(2) as a statement “offered against an opposing party” and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on
the subject;
(D) was made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the
conspiracy.
The statement must be considered but does not by itself establish the declarant’s
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).
Id. at 801(d)(2). Plaintiff invokes Rule 801(d)(2)(A) in its response to Defendant’s motion.
However, Rule 801(d)(2)(A) governs statements offered against a party made by the party
individually or while representing another. See, e.g., United States v. Matlock, 415 U.S. 164, 172
n. 8 (1974) (stating that Rule 801(d)(2)(A) “expressly provides that a party's own statements
offered against him at trial are not hearsay.”). In the instant case, Mr. Oliver is not a party to this
action, and his memorandum is not being offered as evidence against him as a litigant.
As a representative of PRC, any statements made by Mr. Oliver are covered by Rule
801(d)(2)(D). In order to be admissible under Rule 801(d)(2)(D), the statement must be offered
against a party and be “made by the party’s agent or servant concerning a matter within the scope
of the agency or employment, made during the existence of the relationship.” Rodriguez v. United
States, 69 Fed. Cl. 487, 493 n. 8 (2006). The foundation for admission of a statement under Rule
801(d)(2)(D) requires evidence of the agency or authority in addition to the statement itself. E.g.
United States v. Docampo, 573 F.3d 1091, 1097 (11th Cir. 2009). Here, there was no testimony
as to what Mr. Oliver’s role was at PRC, and the scope of his employment is unknown. Plaintiff’s
Exhibit 2 is therefore not admissible under Rule 801(d)(2)(D). Defendant’s motion to strike
Plaintiff’s Exhibit 2 is granted.
Is Meyer Group Entitled to Commissions On Locations It Claims to Have Submitted to PRC
Prior to the Termination of Its Exclusive Brokerage Agreement?
This is a highly unusual case. A Government agency entered into an exclusive real estate
brokerage agreement without negotiating the Agreement or changing one word of the broker’s
proposed contractual language. As a result, the Agreement at issue contains language quite
19
favorable to Meyer Group. Nonetheless, as the parties acknowledge, the Agreement is a binding
contract.
When the United States is a party to a contract, the Court still applies the general rules of
contract construction applicable in the commercial area. E.g., C.R. Pittman Constr. Co. v. United
States, 92 Fed. Cl. 20, 25 (2010). “It is well settled that, in disputes involving contract
interpretation, courts begin ‘by examining the plain language of the contract.’” Canal 66 P’ship v.
United States, 87 Fed. Cl. 722, 725 (2009) (quoting M.A. Mortenson Co. v. Brownlee, 363 F.3d
1203, 1206 (Fed. Cir. 2004)). Where the language of the contract is clear and unambiguous, “the
words of those provisions must be given their plain and ordinary meaning by the court in defining
the rights and obligations of the parties.” George Hyman Constr. Co. v. United States, 832 F.2d
574, 579 (Fed. Cir. 1987) (internal quotation omitted). The Court may not resort to extrinsic
evidence to interpret unambiguous provisions. See McAbee Constr., Inc. v. United States, 97 F.3d
1431, 1435 (Fed. Cir. 1996). The Court uses an objective test, applying the “‘meaning that would
be derived from the contract by a reasonably intelligent person acquainted with the
contemporaneous circumstances.’” Canal 66 P’ship, 87 Fed. Cl. at 725 (quoting Metric
Constructors, Inc. v. NASA, 169 F.3d 747, 752 (Fed. Cir. 1999)).
Courts seek an interpretation of a contract that gives effect to all its terms and leaves no
provision meaningless. See United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.
Cir. 1983). A contract should be interpreted in such a way that all parts make sense. Id. Finally,
“[w]here specific and general terms in a contract are in conflict, those which relate to a particular
matter control over the more general language.” Hughes Commc’ns Galaxy, Inc. v. United States,
998 F.2d 953, 958 (Fed. Cir. 1993) (quoting Hills Materials Co. v. Rice, 982 F.2d 514, 517 (Fed.
Cir. 1992)).
The Agreement Did Not Terminate Upon Signing of the Initial Lease
At the outset, Defendant offers a strained argument that the language of the Agreement
demonstrates that its purpose was for a single lease and commission and that it terminated upon
the signing of the Original Lease in April 2005. Def. Post-Trial Br. 71-74. This would mean that
Meyer Group is not entitled to any commissions beyond that it already received for securing the
initial lease. Defendant focuses on the Agreement’s use of the singular and points to references in
the Agreement it asserts demonstrate that the Agreement was for a single transaction -- the
Agreement’s use of the words “a lease” twice, “the lease” twice, “a location,” “the commission,”
“its commission,” “in the said transaction,” and “a lease agreement” obligating the landlord to pay
“a commission” in “the lease agreement.” Id. at 73; JX 27. Defendant contends that these “general
provisions” should be read in concert with the “specific provision” of the extension clause. In
Defendant’s view, the “general provisions” should be read to terminate the Agreement when the
single initial lease “transaction” was completed and the “specific termination provision” should
operate to terminate the Agreement “in situations where 12 months have passed, performance is
not complete, and PRC wishes to terminate.” Id. at 73-74.
Plaintiff counters that under its plain meaning, after the initial 12-month term, the
Agreement continued on a month-to-month basis and did not automatically terminate after the
signing of the Original Lease. Pl. Post-Trial Br. 52. Plaintiff also highlights language in the
Agreement that contemplates an ongoing relationship and focuses on Mr. Kaplan’s testimony that
20
brokerage agreements define their duration by their own terms, and do not typically terminate upon
the signing of a lease. Id. at 52-53.
In this Court’s view, the unambiguous language of the Agreement provides that this
contract was effective for 12 months and then continued month-to-month until terminated in
writing. JX 27. Rather than defining duration as Defendant suggests in terms of the number of
transactions or leases Meyer Group was retained to procure, the Agreement defined duration in
terms of time. Defendant’s position that the Agreement terminated automatically on April 7, 2005,
when the Original Lease was signed, conflicts with the Agreement’s clear continuation language
and would make the written termination notice requirement meaningless. While the Agreement
refers to “transaction,” “lease,” etc. several times in the singular, the termination provision does
not state that the Agreement would terminate upon completion of a single transaction, and the
Court will not read such a limitation into the text. The use of the singular “lease” or “transaction”
throughout the Agreement does not create an otherwise unmentioned restriction that this
Agreement would only cover a single lease transaction.
Defendant’s attempt to impose this single-transaction limitation as the linchpin of the
Agreement is at odds with the overarching premise of this exclusive real estate brokerage
agreement. The key obligations PRC undertook were to advise the landlord of Meyer Group’s
representation of PRC “before entering in to any lease agreement” and to require, as a condition
of entering into a lease agreement, that the landlord undertake an obligation to pay a commission
to Meyer Group. JX 27 (emphasis added). These contractual obligations apply to any lease
transaction, not just one.
In addition, the extension clause specified that Meyer Group could, as PRC’s exclusive
broker, work to secure other future lease transactions for PRC prior to termination of the
Agreement. In this clause, PRC expressly agreed:
Subsequent to the expiration or termination of this agreement, we will continue to
recognize The Meyer Group, Ltd. as our exclusive broker and the procuring cause
in accordance with the provisions hereof, with respect to any prospective locations
that have been submitted by The Meyer Group, Ltd. during the term of this
agreement. In addition, The Meyer Group, Ltd. will have thirty (30) days after
expiration or termination of this agreement to provide to us a list of those
prospective locations submitted to us during the term of this agreement.
JX 27 at 2.
This provision would clearly contradict Defendant’s proposed construction that the
Agreement abruptly ended upon consummation of a single initial lease. Furthermore, Meyer
Group promised to “use its best efforts to secure a location or locations satisfactory to us” and in
return, PRC promised to “cooperate with [Meyer Group] in good faith in [Meyer Group’s] efforts
to secure satisfactory premises and to maintain this relationship.” (emphasis added). Id. at 1.
In sum, the language of the Agreement indicates that this relationship between PRC and
Meyer Group would be ongoing after the initial lease was signed. This interpretation gives effect
to all parts of the Agreement. The Court concludes as a matter of law that the Agreement did not
21
terminate upon execution of the Original Lease in April 2005, but continued to be in effect until
PRC terminated the Agreement on March 29, 2010.12
The Agreement, Not a “Procuring Cause” Analysis, Governs Whether Meyer Group is
Entitled to Commissions
Defendant argues that it is contrary to law for the Agreement to define Meyer Group as the
procuring cause because it would be a “fabrication” for the Court to recognize Meyer Group as the
procuring cause based upon its submission of property when CBRE was the real procuring cause.
Def. Post-Trial Reply Br. 30. 13 Defendant asserts that recognizing Meyer Group as the procuring
cause would be “deceitful,” “patently untrue,” and would force “an independent commission of
the United States to misrepresent the extent of its relationship with its former broker.” Def. Post-
Trial Reply Br. at 30; Def. Post-Trial Br. 95. Acknowledging that Meyer Group was PRC’s broker
and a procuring cause of two transactions is not a misrepresentation or fabrication, but a legal
conclusion based upon the clear language of the Agreement that PRC, a sophisticated party signed.
The Agreement defined Meyer Group as PRC’s exclusive broker. Ms. Grove acknowledged that
Meyer Group was performing “real estate brokerage services.” JX 172. Importantly, BP, the
landlord with whom Meyer Group was negotiating on PRC’s behalf, clearly recognized Mr. Meyer
was acting as PRC’s real estate broker as of the January 7, 2010 lease extension proposal. So too,
until PRC’s personnel changed in 2009, the evidence strongly shows that PRC’s executives, Mr.
Williams, Mr. Sikora, and Ms. Grady, thought of Mr. Meyer as PRC’s real estate broker and treated
him as such by communicating with him about different leasing options, allowing him to take them
on tours, and calling him PRC’s broker. The fact that miscommunications and disorganized
records prevented PRC’s new leadership -- Ms. Grove and Chairman Goldway -- from learning
about the Agreement does not negate its existence or relegate its terms to a “fabrication.”
Additionally, even after PRC’s management changed, Meyer Group performed the
following tasks as PRC’s exclusive real estate broker:
 Met with Ms. Grove on November 24, 2009. JX 97, 99.
 Performed a free lease audit. JX 106.
12
In Count II of the amended complaint, Plaintiff alleged, in the alternative, that PRC
breached an implied-in-fact contract. Because the Court concludes that the Agreement continued
through March 29, 2010, and that its extension clause governs Meyer Group’s entitlement to any
post-termination commissions, there can be no implied-in-fact contract covering this same subject
matter. Atlas Corp. v. United States, 895 F.2d 745, 754-755 (Fed. Cir. 1990) (“The existence of
an express contract precludes the existence of an implied contract dealing with the same subject,
unless the implied contract is entirely unrelated to the express contract.”).
13
Mr. Warkentin explained the concept of procuring cause as the broker who did more than
any other competing broker. Tr. 310:20-24 (Warkentin). He also testified that defining the
procuring cause is a two-step process, involving a determination of which broker brought the client
to a place where it would make a decision and which broker started an unbroken chain of events
that culminated in the transaction. Id. 472:19-473:9.
22
  Fielded inquiries from Ms. Grove about plumbing problems, contacted Mr.
Magellan about these issues, and raised them with Mr. Storrs several times. JX
113, 115, 121, 125-130.
 Fielded a request from Ms. Grove in December 2009 to discuss exploring other
lease options in January. JX 124.
 Dealt with a request from Ms. Grove, on January 12, 2010, to lay out a schedule for
future building tours. JX 139.
 Met with Ms. Grove on January 14, 2010, and January 15, 2010, to prepare for
seven upcoming building tours. JX 140-141,143.
 Provided PRC with a market survey and financial analysis in January 2010. JX
141.
 Went on tours with PRC personnel on January 20, 2010. JX 145.
 Followed up with Ms. Grove about the tours on January 30, 2010. JX 151.
 Met with Ms. Grove to discuss another building tour on February 25, 2010. JX
161.
Defendant brushes aside the Agreement PRC signed and cites cases holding that a broker
must be the procuring cause of a transaction in order to obtain a commission from it. Def. Post-
Trial Br. 90-91; Def. Post-Trial Reply Br. 29. However, it is settled law that when a brokerage
agreement sets forth what actions a broker must take to be entitled to a commission, the terms of
that agreement override any procuring cause analysis. In Aerotronics, Inc. v. Pneumo Abex
Corporation, the Eighth Circuit held that the procuring cause doctrine is limited by terms of the
contract and cannot “be used to supplant or contradict the terms of a contract entered into between
parties.” 62 F.3d 1053, 1064 (8th Cir. 1995). Several cases cited by Defendant also reject the very
argument Defendant makes about procuring cause. See Messick v. Powell, 236 S.W.2d 897 (Ky.
1951); Gala v. Susnjar, 91 N.W.2d 885 (Mich. 1958); Nichols v. Pendley, 331 S.W.2d 673 (Mo.
Ct. App. 1960); Clients’ Serv., Inc. v. Pupo, 430 P.2d 552 (Wash. 1967); Kaye v. Coughlin, 443
S.W.2d 612 (Tex. App. 1969); Hyde Park-Lake Park, Inc. v. Tuscon Realty & Trust Co., 500 P.2d
1128 (Ariz. Ct. App. 1972); Nollner v. Thomas, 533 P.2d 478 (Nev. 1975). In all these cases,
clients attempted to argue that their former brokers were not the procuring cause of the
transactions, but the courts held that the parties’ contractual language controlled. Here, the
extension clause stated that Meyer Group would be recognized as the exclusive broker and
procuring cause after termination “with respect to any prospective locations that have been
submitted by [Meyer Group] during the term of this agreement.” JX 27 at 2. Thus, for any
location submitted by Meyer Group during the life of the Agreement, which continued until March
29, 2010, the contractual language, not a post-hoc procuring cause analysis, controls.
23
Meyer Group “Submitted” the Lease Extension Location and the Fifth Floor Bryan Cave
Sublease to PRC
The Agreement required PRC to recognize Meyer Group as its exclusive broker and
procuring cause “with respect to any prospective locations that have been submitted by [Meyer
Group] during the term of this agreement.” JX 27 at 2.
Mr. Kaplan defined submission as:
It might be as modest a step as including a building in a survey, it might be a
building that you toured, it might be a building that you negotiated on, but it's very
broad. Anything that was in that -- any survey that you provided to your tenant, or
discussed in emails, would qualify as being submitted.
Tr. 235:7-12 (Kaplan). In his testimony, Mr. Kaplan further stated that in his view and, he thought,
industry-wide, “when you talk about a building submitted or presented to a tenant, it -- or a
property, it refers to the building, it doesn't necessarily mean that you have to show them that
particular space.” Id. 246:25-247:4. Defendant’s expert, Mr. Warkentin, testified that a variety of
activities would constitute a submission, including touring a property, identifying a property in a
market survey, and “possibly” transmitting a proposal from a landlord. Tr. 502:18-503:12
(Warkentin). Mr. Warkentin agreed with Mr. Kaplan’s opinion that Meyer Group submitted to
PRC each of the spaces PRC ultimately leased in the Building. Id. at 504:4-505:13.
Submission of the Seventh Amendment to the Original Lease
Based on the evidence in this case, Meyer Group submitted the location in the Seventh
Amendment to the Original Lease to PRC. Meyer Group made PRC aware of the option of
extending its lease and did additional work on the lease extension. Specifically, Meyer Group:
 Introduced PRC to the Building, procured the original lease, and assisted PRC
with tenant issues during that lease.
 Met with Chairman Goldway and Ms. Grove in September 2009 to get them up
to speed on PRC’s situation in 901 New York Ave, NW and on the status of
other buildings PRC was considering for future leasing. Tr. 58:10-25 (Meyer).
 Received a proposal for a lease extension from the landlord’s representative in
the Building, Mr. Storrs, on January 7, 2010, forwarded it to Ms. Grove, and
suggested they meet to discuss it. JX 131.
 Negotiated with Mr. Storrs about the lease extension proposal for leasing the
same space in the Building. JX 146.
 On March 2, 2010, discussed the January 7, 2010 lease extension proposal with
Mr. Storrs, including PRC’s desire for a longer lease term and tenant
improvement funds. JX 162.
 Drafted a counterproposal to respond to Mr. Storrs’ January 7, 2010 proposal.
JX 170.
24
Submission of the Fifth Floor Bryan Cave Sublease
The Bryan Cave subleases were for space on the fourth and fifth floors of the Building.
JSF ¶¶ 18, 23, 27.14 The first sublease was for 1,500 square feet of space on the fifth floor, while
the second sublease amended the first to add short-term space on the fourth floor. The third
sublease amended the first to extend the time PRC was leasing the fifth floor space and altered the
rent terms.
On June 16, 2009, Mr. Meyer emailed a Powell Goldstein broker stating, “I met with the
Postal Regulatory folks. Can you carve out a small suite somewhere for sublease?” JX 74 at 1.
Mr. Meyer also sent an email to a CBRE broker that he “needed a small suite for my client the
Postal Regulatory Commission. 1,500-2000 feet. Right away. Know of anything else in the area
of 901 new york let me know.” JX 77. The purpose of this search was to find space for PRC’s
Inspector General’s office. JX 78 at 1.
On June 29, 2009, Mr. Meyer emailed PRC’s Ms. Grady stating “[t]here is space that Brian
[sic] Cave is willing to subdivide for you upstairs.” JX 81 at 2. Mr. Meyer then sent Ms. Grady a
diagram of the fifth floor east tower of 901 New York, Ave, NW and noted that he had circled the
location Bryan Cave was willing to subdivide. JX 82. On June 30, 2009, Mr. Meyer emailed
Bryan Cave’s broker and asked “[i]s there a way for the Postal Regulatory people to see the
proposed space today. Maybe around noontime.?” JX 83. A tour of this space may have taken
place on July 1, 2009, as the record contains emails between Ms. Grady, Mr. Meyer, and the Bryan
Cave broker arranging a time to meet, and ending with Mr. Meyer asking Ms. Grady if she
connected with the Bryan Cave broker. Id.; JX 84.
As Meyer Group specifically presented PRC with the option of subleasing Bryan Cave
space in the 5th floor east tower, the Court finds that he “submitted” this location within the
meaning of the Agreement.
However, there is no indication in the record that Meyer Group introduced or otherwise
submitted the fourth floor swing space to PRC beyond touring these spaces in December 2008.
See Pl. Post-Trial Br. 57-58. PRC’s need for the space on the fourth floor arose because of
construction work in PRC’s other space in 2011, which occurred well after Meyer Group’s
Agreement was terminated. JSF ¶ 23. The purpose of Meyer Group’s showing of the fourth floor
space to PRC -- back in 2008-2009, when it was first interested in the third floor -- was not
prompted by this construction. Meyer Group’s submission in 2008-2009 bore no relationship with
what became the sublease that was entered into in 2011, for the fourth floor space.
The case of Lloyd Hammerstad, Inc. v. Saunders is instructive here. 495 P.2d 349 (Wash.
App. 1972). In that case, the eventual purchasers were a husband and wife. The broker drove the
husband to a number of residences in their search for a new home, including the one at issue, and
stopped in front of it on the street. Id. at 350. When the husband heard the price, he told the broker
to drive on because it was too expensive. Id. The wife later visited the house as part of a social
call, and, unaware that her husband had already viewed it, found out that it was for sale and
encouraged her husband to come see it. Id. They later purchased this property, and the broker
14
Bryan Cave merged with Powell Goldstein on January 1, 2009, so the space was originally
referred to as the Powell Goldstein space. AJSF ¶ 37.
25
who had worked with the husband had no involvement in that transaction. Id. The Court of
Appeals of Washington analyzed the case of Clients’ Service, Inc. v. Pupo, which had held that
while a broker with an agreement did not need to be the procuring cause of a transaction, there still
had to be “some minimal causal relationship between the activities of the broker during the listing
period and the ultimate sale.” Id. at 350-351 (citing Clients’ Serv. Inc. v. Pupo, 430 P.2d 552
(1967)). The Court of Appeals in Lloyd Hammerstad rejected the broker’s claim for a commission
because she had not had a “minimal causal relationship” between the wife’s discovery of the
property and the sale after the husband had rejected the location.
Here, as in Lloyd Hammerstad, there is no “minimal causal relationship” between the
activities of Meyer Group during its employment as PRC’s exclusive real estate broker and the
later subleasing of the fourth floor swing space.
The Extension Clause Applies to the Seventh Amendment and the Fifth Floor Sublease
Even though the Agreement was in effect through March 29, 2010, and Meyer Group
“submitted” both the Seventh Amendment to the Original Lease location to PRC and the fifth floor
location of the first and third Bryan Cave subleases, there is another potential legal impediment to
awarding Meyer Group damages for the Seventh Amendment to the Original Lease and the first
Bryan Cave fifth-floor sublease – these transactions were not effected until well over a year after
the Agreement was terminated. The Seventh Amendment was not executed until January 13, 2012
– 655 days, or one year and nine months, after Meyer Group’s Agreement was terminated, and the
first Bryan Cave fifth floor sublease was executed on May 15, 2011 – 412 days, or one year and
47 days, after termination. The delay in the consummation of these transactions presents a thorny
legal issue, even with contract language as favorable as what Meyer Group wrote for itself with
PRC’s full acquiescence.
The Agreement provided no time limit on how long the broker would be entitled to a
commission for properties he had submitted before the Agreement was terminated. In other words,
theoretically, Meyer Group could be entitled to a commission no matter when a lease was
eventually executed even if it were years after a property was submitted. The law does not favor
such indefinite contract provisions, and, as precedent dictates and the experts here agree, the Court
is forced to impose a “reasonable” term.
The Extension Clause provides:
Subsequent to the expiration or termination of this agreement, we will continue to
recognize The Meyer Group, Ltd. as our exclusive broker and the procuring cause
in accordance with the provisions hereof, with respect to any prospective locations
that have been submitted by The Meyer Group, Ltd. during the term of this
agreement. In addition, The Meyer Group, Ltd. will have thirty (30) days after
expiration or termination of this agreement to provide to us a list of those
prospective locations submitted to us during the term of this agreement.
JX 27 at 2.
Defendant argues that D.C. Code § 42-1703(g)(2) governs the Agreement and imposes a
90-day limitation to the extension clause, that the extension clause is ambiguous and must be
construed against the drafter, Meyer Group, and that if this District of Columbia 90-day limitation
26
does not apply, a reasonable time of 6 to 12 months must be used. Def. Post-Trial Br. 79, 83-90.
The Court addresses these arguments in turn.
The D.C. Code Does Not Apply
Defendant argues that D.C. Code § 42-1703(g)(2) limits the extension clause to 90 days
because the Agreement does not specify a termination date. Id. at 79.
D.C. Code § 42-1703(g) states:
(1) The brokerage relationships set forth in this section shall commence at the
time that a client engages a licensee and shall continue until (A) completion of
performance in accordance with the brokerage relationship, or (B) the earlier of (i)
any date of expiration agreed upon by the parties as part of the brokerage
relationship or in any amendments thereto, (ii) any mutually agreed upon
termination of the relationship, (iii) a default by any party under the terms of the
brokerage relationship, or (iv) a termination as set forth in subsection (i)(4) of this
section.
(2) Brokerage relationships shall have a definite termination date; however, if
a brokerage relationship does not specify a definite termination date, the brokerage
relationship shall terminate 90 days after the date the brokerage relationship was
entered into.
(3) Except as otherwise agreed to in writing, a licensee owes no further duties
to a client after termination, expiration, or completion of performance of the
brokerage relationship, except to account for all moneys and property relating to
the brokerage relationship, and keep confidential all personal and financial
information received from the client during the course of the brokerage relationship
and any other information that the client requests during the brokerage relationship
be maintained confidential, unless otherwise provided by law or the client consents
in writing to the release of such information.
D.C. Code § 42-1703(g) (2012).
The D.C. Code does not govern this situation.15 When a brokerage agreement does not
have a “definite termination date,” the D.C. Code provides that the agreement ends in 90 days.
However, the Agreement here does define a termination date, and there is no dispute that the
termination date here was March 29, 2010. The Agreement specifically provided that it was
“effective for a period of twelve (12) months” and would “continue on a calendar month-to-month
basis thereafter unless The Meyer Group, Ltd. receives written notice to the contrary.” JX 27 at
1. Because the Agreement did not lack a definite termination date, there is no basis for the Court
to turn to the D.C. Code to impose a 90-day limitation. D.C. Code § 42-1703(g)(1) also permits
brokerage agreements to end by “any mutually agreed upon termination of the relationship.”
Finally, § 42-1703(g)(3) specifically uses the phrase “[e]xcept as otherwise agreed to in writing,”
permitting parties to craft their own extension clauses with varying obligations for each party after
15
Given that the cited D.C. Code provisions are inapposite, the Court need not resolve
whether this provision of local District of Columbia law applies in the federal procurement context.
27
termination. Therefore, even if the D.C. Code applied, it would not alter the conclusion that the
parties’ Agreement controls.
The Extension Clause is Not Ambiguous
Defendant argues that the Court should adopt its construction of the extension clause
because “[t]he application of PRC’s commitment in perpetuity to its broker relationship with
Meyer Group is ambiguous.” Def. Post-Trial Br. 89. Defendant thus urges the Court to employ
the doctrine of contra proferentem and construe any ambiguities in the contract against the drafter.
Id.
The Federal Circuit addressed a similar issue in American Western Corporation v. United
States. 730 F.2d 1486 (Fed. Cir. 1984). In that case, the Federal Circuit found that there was no
ambiguity in a contract that “very clearly state[d] the relative rights of the parties” but “merely
fail[ed] to set a time limit within which the Government must claim a reduction in price. Omission
of an express time provision does not of itself create an ambiguity.” Id. Here, as in American
Western Corporation, the omission of an express time limit specifying how long after termination
PRC must continue to recognize Meyer Group as its broker “does not of itself create an ambiguity”
warranting application of the contra proferentem doctrine.
A Reasonable Temporal Limit Covers These Two Transactions
The Court must determine whether the extension clause should be read to entitle Meyer
Group to commissions for the first Bryan Cave sublease, entered into 412 days after the Agreement
was terminated, and the Seventh Amendment to the Original lease, entered into 655 days after the
Agreement was terminated. Plaintiff argues that the extension clause continues through the
termination date of the original lease and for a year or two thereafter, based on Mr. Kaplan’s
testimony. On the other hand, Defendant argues that a 6-12 month period after termination is
reasonable. 16
The Federal Circuit has held that in the absence of an express time provision in a contract,
it is common for courts to imply a reasonable time. See Am. W. Corp., 730 F.2d at 1488 (citing
Nager Elec. Co., Inc. v. United States, 177 Ct. Cl. 234 (1966); Roberts v. United States, 174 Ct.
Cl. 940 (1966); Merritt-Chapman & Scott Corp. v. United States, 174 Ct. Cl. 250 (1966)). The
parties have not provided any analogous cases defining what a reasonable time limitation in a
brokerage agreement’s extension clause should be. This appears to be a case of first impression
for this Court. Based on the unusual facts of the instant case, the Court finds that this lease
extension, signed 655 days after Meyer Group’s termination, occurred within a reasonable period
of time. The uncontroverted evidence weighing in favor of this finding shows that the terms of
the lease extension were finalized no later than May 25, 2011, in the parties’ letter of intent, a year
and two months after termination. PRC accepted the Seventh Amendment to the Original Lease
16
The Court does not find persuasive Defendant’s argument that the “vast majority” of
brokerage contracts have extension clauses that are 12 months or less. Def. Post-Trial Br. 83. These
cases concern extension clauses with deadlines written by the parties and the length of the
extension clause represents the parties’ negotiated agreements, not a rule of law.
28
by signing the letter of intent. JX 243 at 56:9-17. The delay between Meyer Group’s submission
of this location until the letter of intent was signed in May 2011, was due in large part to PRC’s
general slow pace and the change in brokers. JX 243 at 30:6-14. The additional delay until January
13, 2012, was due to wholly extraneous circumstances exclusively within the purview of the
landlord -- the need to resolve the law firm encumbrances, which had to be worked out between
BP and those firms, and the need to wait for BP’s lender to approve the transaction.
Mr. Storrs testified that after PRC signed the letter of intent, BP had to move the Goodwin
Proctor “must-take” to the fourth floor and that was when the “bulk of the work took place.” JX
243 at 56:9-17. Mr. Storrs stated that it was a similar scenario for the Finnegan Henderson ROFO.
Id. at 56:22-1. Mr. Storrs estimated that approximately 80% of the work was done in July 2011.
Id. at 57:11-20. The delay thus does not suggest that Meyer Group’s initial submission of the
location was somehow displaced by an intervening cause. The extension of the Original Lease
was for the same space Mr. Meyer had initiated, and the duration of the Seventh Amendment to
the Original Lease was only two months longer than that proposed in Mr. Meyer’s
counterproposal. There were no major changes to the deal Mr. Meyer and Mr. Storrs had proposed
in January and March 2010.
Mr. Warkentin also stated that there were situations when even a two-year extension period
could be reasonable. Tr. 465:15-466:5 (Warkentin). Here, had third-party involvement not
prevented the signing of the Seventh Amendment to the Original Lease until January 13, 2012, the
evidence suggests that the lease extension would have been signed in May or June 2011, -- only
two to three months outside a 12-month period. Similarly, the first Bryan Cave sublease for the
fifth floor that Meyer Group had submitted to PRC was signed within a reasonable timeframe after
termination of the Agreement -- one year and 47 days.
However, the third and final Bryan Cave sublease was not executed within a reasonable
time after Meyer Group’s Agreement was terminated on March 29, 2010. This third sublease,
which amended the lease period and rent terms for the fifth-floor sublease, was not signed until
July 1, 2012, 825 days after PRC terminated the Agreement and nearly seven months after the
signing of the Seventh Amendment to the Original Lease. JSF ¶ 27. This transaction arose from
the need to extend the final date of the first Bryan Cave sublease from June 30, 2012 to March 29,
2015. Unlike the Seventh Amendment to the Original Lease, this sublease extension was executed
well beyond even two years after the Agreement was terminated. There is no evidence that this
transaction, like the Seventh Amendment to the Original Lease, had been initiated earlier, but was
delayed due to external factors, and was similar to a proposal Meyer Group had been negotiating.
Nor has Plaintiff established that the need to extend this Bryan Cave sublease was on the horizon
before the Agreement was terminated.
The Market Rate for Meyer Group’s Commercial Real Estate Brokerage Commission
The Court finds that a 3.5% commission is appropriate for the Seventh Amendment to the
Original Lease as that was the market rate in Washington, D.C. in January 2012, when that
amendment was signed. The Court recognizes that Mr. Meyer testified that he received a 4%
commission on the Original Lease in 2005, and that 4% “still [was]” the market rate. Tr. 23:19-
21 (Meyer). Similarly, Meyer Group’s expert, Mr. Kaplan, testified that in 2012, 3% to 4% was
29
“more common,” with the market moving toward 4%. Tr. 229:9-15.17 Mr. Storrs wrote two emails
in preparation for paying CBRE a commission. In an email to BP’s lenders, dated December 28,
2011, Mr. Storrs summarized the Seventh Amendment to the Original Lease and stated that the
commission would be 3.5% as 3.5% to 4% with 100% upfront “is the market now.”18 JX 228 at
2. In a similar email, dated January 4, 2012, Mr. Storrs noted that CBRE had asked for a 4%
commission, but that he had “talked them down” to 3.5% with 50% up front and 50% discounted
by 8% and paid in 2015. JX 230. The arm’s length negotiations between CBRE and BP indicate
that both parties were willing to accept a 3.5% commission in January 2012. 19 This rate also
comports with Mr. Kaplan’s expert opinion, as it falls within the 3% to 4% range he named for the
market rate. Tr. 229:9-15 (Kaplan). Mr. Warkentin did not testify about a 2012 market rate. As
such, the Court finds that 3.5% would be an appropriate market rate for a commission on the
Seventh Amendment to the Original Lease.
There is little information in the record as to the market rate for commissions in May 2011,
when the first Bryan Cave sublease was signed. However, the first sublease itself stated that CBRE
would receive a 3% commission, which is probative evidence of what the parties were willing to
accept as a market rate in this timeframe. Therefore, the Court uses a 3% market rate for the
commission for the first Bryan Cave sublease for the fifth floor.
Meyer Group Can Recover Damages from PRC 20
Defendant argues that Meyer Group cannot recover damages from PRC because the
Agreement states that the landlord generally assumes the responsibility of paying the commission
to the broker. Def. Post-Trial Br. 99. Defendant thus asserts that Meyer Group’s sole remedy is a
declaratory judgment “requiring PRC to inform the landlord that Meyer Group should be
recognized as PRC’s exclusive broker, pursuant to the terms of the agreement, for certain disputed
transactions,” and then Meyer Group must negotiate separately with the landlord. Id.
17
Defendant notes that Mr. Storrs testified at deposition about a 1% to 4% commission rate.
Def. Reply Br. 55. However, Mr. Storrs made this response when asked what is the “current going
rate” for brokerage commissions. JX 243 at 28:9-17. As Mr. Storrs was deposed in March 2013,
this is not evidence of what market rate applied in January 2012.
18
Mr. Storrs testified at deposition that 2% to 3% was the market rate in January 2012. JX
243 at 29:14-17.
19
The record does not contain documentary evidence showing that a commission in a specific
amount was paid to CBRE by BP on the Seventh Amendment to the Original Lease. Ms. Grove
testified that to her knowledge CBRE had not been paid a commission. Tr. 422:3-6 (Grove)
20
The landlord was not a party to this action, and this ruling does not address whether PRC
may seek indemnification from the landlord, as it was the landlord, not PRC, the tenant, that was
obligated to pay Meyer Group the commission in the first place. The Government is liable here
for damages stemming from its breach of the exclusive brokerage agreement, and the amount of
the commission Meyer Group would have received from the landlord but for that breach is the
appropriate measure of damages.
30
Once an injured party establishes a breach of an enforceable contract, that party has a right
to damages unless the breach caused no loss or the party cannot prove a loss. RESTATEMENT
(SECOND) OF CONTRACTS § 346 (1981). Expectation damages are measured by “(a) the loss in the
value to him of the other part’'s performance caused by its failure or deficiency, plus (b) any other
loss, including incidental or consequential loss, caused by the breach, less (c) any cost or other
loss that he has avoided by not having to perform.” Id. at § 347. A party that establishes a breach
of contract may recover expectancy damages “sufficient to place the injured party in as good a
position as he or she would have been had the breaching party fully performed.” San Carlos
Irrigation & Drainage Dist. v. United States, 111 F.3d 1557, 1562-63 (Fed. Cir. 1997) (citing Estate
of Berg v. United States, 231 Ct. Cl. 466 (1982)).
To recover expectancy damages for a breach of contract, a plaintiff must establish that (1)
the damages were caused by the breach; (2) the damages were reasonably foreseeable at the time
the contract was entered into; and (3) the measure of damages are reasonably certain. See, e.g.,
SGS-92-X003 v. United States, 118 Fed. Cl. 492, 524 (2014) (citing Kan. Gas & Elec. Co. v.
United States, 685 F.3d 1361, 1369 (Fed. Cir. 2012) (internal citations omitted)). Causation,
foreseeability, and proof of damages are issues of fact. See Anchor Sav. Bank, FSB v. United
States, 597 F.3d 1356, 1361 (Fed. Cir. 2010); Fifth Third Bank v. United States, 518 F.3d 1368,
1375 (Fed. Cir. 2008);Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d 1348, 1355-57
(Fed. Cir. 2001)). Plaintiff has the burden of proof on the three elements. SGS-92-X003, 118 Fed.
Cl. at 524 (citing Yankee Atomic Elec. Co. v. United States (“Yankee II”), 536 F.3d 1268, 1273
(Fed. Cir. 2008); Bluebonnet Sav. Bank, 266 F.3d at 1355).
Causation
Plaintiff has the burden of proving that its damages resulted from PRC’s breach of the
Agreement. The Court must determine which legal standard to apply in assessing causation, as it
has discretion to choose from the “but for” or “substantial factor” standard. See Citizens Fed.
Bank v. United States, 474 F.3d 1314, 1318 (Fed. Cir. 2007) (“[T]he selection of an appropriate
causation standard depends upon the facts of the particular case and lies largely within the trial
court’s discretion.”). Under the “but for” test, the plaintiff must show that the claimed losses
“would not have occurred but for the breach,” although the breach need not be the sole cause, to
recover damages. Cal. Fed. Bank. v. United States, 395 F.3d 1263, 1268 (Fed. Cir. 2005); Anchor
Sav. Bank, FSB v. United States, 81 Fed. Cl. 1, 60 (2008). Furthermore, the plaintiff must show
that damages flow “inevitably and naturally” from the breach. Citizens Fed. Bank, 474 F.3d at
1318 (quoting Myerle v. United States, 33 Ct. Cl. 1, 27 (1897)). “The substantial factor standard
is properly invoked when the parties assert multiple possible causes for the claimed damages.”
Am. Sav. Bank, F.A. v. United States, 98 Fed. Cl. 291, 301 (2011) (citing Citizens Fed Bank, FSB
v. United States, 59 Fed. Cl. 507, 514-516 (2004)). While the Court enjoys the discretion to use
the substantial factor test, it is “not preferred” by the Federal Circuit. Yankee II, 536 F.3d at 1272.
Here, the Court will apply the “but-for” standard, as Meyer Group does not assert that any
factor other than PRC’s breach prevented it from receiving commissions on the Seventh
Amendment to the Original Lease and the first Bryan Cave fifth floor sublease. In this case, PRC’s
breach was the “but-for” cause of Meyer Group’s damages. PRC breached the Agreement by
failing to recognize Meyer Group as its exclusive real estate broker and procuring cause for the
Seventh Amendment to the Original Lease and the first Bryan Cave fifth floor sublease. See JX
27. Had PRC honored the terms of the Agreement, Meyer Group would have been paid
31
commissions by BP. As such, the amount of these commissions represents Meyer Group’s
expectancy damages.
Foreseeability
Foreseeability means that “the injury actually suffered must be one of a kind that the
defendant had reason to foresee and of an amount that is not beyond the bounds of reasonable
prediction.” Citizens Fed. Bank, 474 F.3d at 1321 (quoting Joseph M. Perillo, 11 Corbin on
Contracts § 56.7 at 108 (2005 rev. ed.)). Damages must be “reasonably foreseeable by the
breaching party at the time of contracting.” Vt. Yankee Nuclear Power Corp. v. Entergy Nuclear
Vt. Yankee, LLC, 683 F.3d 1330, 1344 (Fed Cir. 2012) (citing Williston on Contracts § 64.29).
Furthermore, “the particular details of a loss need not be foreseeable,” as long as the “specific
mechanism of loss” was foreseeable. Anchor Sav. Bank, FSB, 597 F.3d at 1362.
In this case, the Agreement specifically required PRC to “cooperate and work with The
Meyer Group, Ltd. in its efforts to obtain its commission,” to “inform the landlord” of Meyer
Group’s representation of PRC before PRC entered into any lease agreement, and to make the
landlord undertake an obligation to pay Meyer Group a commission, “in accordance with a typical
market rate,” as a condition of entering into a lease agreement. JX 27 at 2. These terms make clear
that at the time of contracting, if PRC failed to recognize Meyer Group as its exclusive broker and
procuring cause for submitted transactions after the termination of the Agreement, Meyer Group
would suffer the loss of market-rate commissions. Indeed, the conduct of the parties when the
Original Lease was signed confirms this understanding, as Meyer Group received its commission
and the Original Lease contained a provision recognizing Meyer Group as the broker. JX 29 at
43.
Reasonable Certainty
A plaintiff must show damages with reasonable certainty. While it is the plaintiff’s burden
to prove damages, “where responsibility for damage is clear, it is not essential that the amount
thereof be ascertainable with absolute exactness or mathematical precision: ‘It is enough if the
evidence adduced is sufficient to enable a court or jury to make a fair and reasonable
approximation.’” Elec. & Missile Facilities v. United States, 189 Ct. Cl. 237, 257 (1969) (citing
Specialty Assembling & Packing Co. v. United States, 174 Ct. Cl. 153, 184 (1966); WRB Corp.
v. United States, 183 Ct. Cl. 409, 425 (1968)). “If a reasonable probability of damage can be
clearly established, uncertainty as to the amount will not preclude recovery.” Ace-Federal
Reporters, Inc. v. Barram, 226 F.3d 1329, 1333 (Fed. Cir. 2000) (quoting Locke v. United States,
151 Ct. Cl. 262, 267 (1960)).
There was no evidence at trial as to the total gross aggregate lease value of the Seventh
Amendment to the Original Lease. See Tr. 228:23-24 (Kaplan) (“In this market, commissions are
generally a percentage of the gross value of the lease over the entire lease term.”). Meyer Group’s
post-trial brief states that this value is $11,491,021.71, but provides no indication as to how this
number was calculated from the documents in the record. Pl. Post-Trial Br. 74. On November 26,
2014, the Court ordered Meyer Group to file a supplemental brief “setting forth, with citations to
the record, the total gross aggregate lease value for the Seventh Amendment to the Original Lease
. . . , and an explanation of how such values were calculated.”
32
Plaintiff filed this supplemental brief on December 12, 2014, and notes that Mr. Meyer
defined the term “gross aggregate lease value” as
[t]he sum of all the rent the tenant is going to pay, over the term of whatever lease
they sign, and if it’s a triple net lease, it would also include a gross-up amount to
be added for the entire term of the lease for purposes of calculating what the
commission would be.
Tr. 23:8-18 (Meyer). Plaintiff also quotes Mr. Meyer defining a triple net lease as
Triple net is a form of rent structure where the tenant is basically paying for the
shell space, and that’s the rent for the space. So, you could say $27 a foot. And
then whatever the costs are to operate the building, for both operating expenses and
real estate taxes, that is added to the triple net rent to formulate a full – full-service
rent. A full rent.
Tr. 21:23-22:5 (Meyer).
Plaintiff’s assertion that the total gross value of the lease was $11,491,021.71 appears to
be derived from an email of Mr. Storrs dated January 4, 2012. JX 230. Plaintiff relies on this
email in its supplemental brief to prove what a 4% commission on the Seventh Amendment to the
Original Lease would be. Pl. Suppl. Br. 2. In this email to a JP Morgan employee, Mr. Storrs
discussed the amount of CBRE’s commission and stated that a 4% commission would be
$459,640.87 and that a 3.5% commission with the second payment discounted by 8% would be
$352,220.94. JX 230. Plaintiff thus seems to have worked backwards from the $459,640.87
quoted in Mr. Storrs’ email to arrive at the $11,491,021.71 gross aggregate lease value amount in
its post-trial brief, as $459,640.87 is 4% of $11,491,021.71.
In its response to Plaintiff’s supplemental brief, Defendant argues that Plaintiff did not
provide any explanation about how the gross aggregate lease value was calculated and that Mr.
Storrs’ email merely represents his “then-existing view on the value of a four-percent commission”
and “establishes neither the aggregate lease value nor the gross-up.” Def. Suppl. Br. 2. Defendant
further argues that Mr. Meyer’s testimony proves that further inputs are needed to calculate the
gross aggregate lease value. Id. Defendant therefore asserts that Plaintiff has failed to prove its
measure of damages. Id. at 3.
Mr. Storrs, as an employee of the landlord, had the values of the different rent structures
and add-ons on hand in order to calculate a 4% commission. Mr. Storrs had no reason to
exaggerate his calculation, as his company would be paying the commission and needed the
lender’s approval. As Mr. Storrs’ email provides a value for a 4% commission, the Court can
make a “fair and reasonable” determination of what a 3.5% commission would be. As such,
Plaintiff has proved damages to a reasonable certainty.
The number used in Mr. Storrs’ email, $459,640.87, is 4% of $11,491,021.75. Using
$11,491,021.75 as the gross aggregate lease value yields a 3.5% 2012 market rate commission of
$402,185.76. Therefore, the Court awards Plaintiff damages of $402,185.76 on the Seventh
Amendment to the Original Lease.
33
Both parties agree that the first Bryan Cave sublease was not a triple-net lease and simply
consisted of $4,750 in monthly rent and 13.5 months of rent. This amounts to a total lease value
of $64,125,21 and 3% of this amount is $1,923.75. Plaintiff’s damages are thus $404,109.51.
Plaintiff is entitled to interest on $404,109.51 as provided under the CDA, 41 U.S.C. § 7109(a)(1)
(2012).22 Pl. Post-Trial Br. 75; Def. Post-Trial Br. 99.
Conclusion
1. The Clerk of Court is directed to enter judgment in favor of Plaintiff in the amount
of $404,109.51, plus interest calculated from May 3, 2012, pursuant to 41 U.S.C. § 7109(a)(1)
(2012).
2. Defendant’s motion to strike Plaintiff’s Exhibit 2 is GRANTED.
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge
21
Plaintiff calculated this amount as $59,665, which appears to be a mathematical error, as
$4,750 multiplied by 13.5 is $64,125.
22
Interest runs from the date of Plaintiff’s claim on May 3, 2012. See 41 U.S.C. § 7109(a)(1)
(2012) (“Interest on an amount found due a contractor on a claim shall be paid to the contractor
for the period beginning with the date the contracting officer receives the contractor's claim . . .
until the date of payment of the claim.”).
34