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Pair of District Court Opinions Illustrates the Difficulty of Enforcing a Purported Oral Agreement Between a Third-Party Marketer and a Hedge Fund Manager

On October 20, 2009 and November 9, 2010, the U.S. District Court for the Northern District of Illinois issued two opinions benefiting hedge fund manager Whitecap Advisors, LLC, in breach of contract litigation brought by third-party hedge fund marketer Coburn Group, LLC.  In the lawsuit, Coburn Group had accused Whitecap of breaching its oral agreement to continue to pay its commission for so long as the investors it introduced to Whitecap maintained investments with it.  Whitecap, in turn, had challenged Coburn Group’s claim that such an agreement existed, and claimed, alternatively, that they had entered a “pay-as-you-go” arrangement that it terminated following repeated unsuccessful attempts by both parties to reach a memorialized contract.  When Coburn Group moved for summary judgment, the District Court found that material issues of fact existed that necessitated a jury trial.  When Whitecap moved, days later, to preclude Coburn Group from introducing evidence at that trial of damages to Coburn Group that may arise in the future, the District Court agreed that such evidence would be inappropriate given the speculative nature of such damages, and granted Whitecap’s motion.  This action is particularly significant because not many legal opinions address the relationship between hedge fund managers and placement agents or third-party marketers.  This article details the background of the instant action and the court’s pertinent legal analysis.  For more on the relationships between hedge fund managers and placement agents or third-party marketers, see “What Is the ‘Market’ for Fees and Other Key Terms in Agreements between Hedge Fund Managers and Placement Agents?,” Hedge Fund Law Report, Vol. 3, No. 35 (Sep. 10, 2010); “Indemnification Provisions in Agreements between Hedge Fund Managers and Placement Agents: Reciprocal, But Not Necessarily Symmetrical,” Hedge Fund Law Report, Vol. 3, No. 41 (Oct. 22, 2010).

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