FILED: NEW YORK COUNTY CLERK 10/31/ :54 PM INDEX NO /2016 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/31/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 10/31/ :54 PM INDEX NO /2016 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 10/31/2016

2 TABLE OF CONTENTS I. INTRODUCTION 1 A. NutraSweet s JDA Defense Lacks Merit.. 1 B. NutraSweet s Counterclaims and Other Defenses, Including its New Counterclaim XIII and Defense J, are Baseless NutraSweet s Fraud Claims and Defenses Should be Summarily Dismissed 2 2. Rescission Under any Theory Is Unavailable As A Matter of Law Under APA Section 9(g)(iii) or Common Law NutraSweet Has Failed to Establish Any of its Claims and Defenses on the Merits 3 a. NutraSweet Cannot Establish that Daesang s Alleged Breach of APA Section 3(f) Destroyed the Principal Objectives of the Parties Agreements, Materially Affected the Core Obligations of the Agreements or Caused any Injury. 3 b. NutraSweet Participated In, and Was Well Aware of, Anti-Competitive Activity in the Aspartame Market Throughout the 1990s and into the 2000s... 4 c. NutraSweet s Prior Admissions, the Parties March 2005 Settlement and Other Direct Evidence, Including the Provisions of the APA and the Processing Agreement, Dispose of All of Its Other Counterclaims and Defenses NutraSweet s Motive is to Avoid Purchase Price Payment Obligations and Use Daesang as an Insurance Policy for Its Own Business Risks and Market Downturns.. 9 II. ARGUMENT 10 A. NutraSweet Had No Right to Rescind Under the JDA of the JDA Was Superseded by the APA and the Processing Agreement.. 10 a. The APA s Section 10(c) Merger Clause Extinguished 10 of the JDA b. JDA 10 Relates to, and In Fact Covers, the Same Subject Matter Addressed in the Provisions of the Later APA.. 12 i

3 c. 10 of the JDA Adds to or Varies Section 9(g)(iii) of the APA. 14 d. The APA, Which Refers to One Prior Agreement, Does Not Mention the JDA 15 e. Creditsights and Flightsafety Are Not Applicable to the Merger Clause Analysis in this Proceeding 18 f. The Parties Expressed Intent As Set Forth in their Final Agreement Governs The Parties Abandoned 10 of the JDA During the Period that the Definitive Agreements Were Being Negotiated.. 23 a. 10 of the JDA Was A Preliminary Agreement. 23 b. The Parties Never Entered Into or Attempted to Negotiate Terms for a New Supply Agreement as Required by 10(e) of the JDA. 24 c. The Parties Included a Broad Merger Clause in the APA and Took No Steps to Preserve the Existence of the JDA.. 24 d. The Parties Never Took Any Steps to Maintain Confidentiality, Exchange Information or Institute a Joint Defense as Contemplated by the JDA The Conditions Triggering A Right to Rescission Under 10 of the JDA Based on the Filing of an Antitrust Action Were Not Met. 25 a. The Price Fixing Action Did Not Allege That the Transaction Violated the Antitrust Laws.. 26 b. The Price Fixing Action Was Not Brought by a Customer with Annual Worldwide Aspartame Requirements in Excess of 1,000,000 Pounds.. 30 i. A Civil Suit Brought By a Small Volume Customer, Whether or Not in the Form of a Class Action, Does Not Meet the JDA s High Threshold For Purposes of Un-Doing the Transaction.. 31 ii. The District Court and the Third Circuit Court of Appeals in the Price Fixing Action Already Determined that Putative Class Members Are Not Plaintiffs ii

4 iii. The Identity of Potential Class Members Was Unknowable at the Time of Commencement of the Price Fixing Action 34 iv. American Pipe Fully Supports Daesang s Position Regarding the Status of Putative Class Members.. 35 B. NutraSweet s Invalid Exercise of Rescission Does Not Vitiate Liability for Its Prior Breaches NutraSweet s Attempt to Insert New Provisions in the Parties Agreements and Strained Efforts to Choose Daesang s Remedy for NutraSweet s Defaults Are Invalid and Baseless The APA Does Not Provide for, and Daesang is Not Seeking, a Double Recovery Daesang s Exercise of its Rights Under Section 2(d)(i)(B)(2) of the APA Was Not An Election to Terminate and Has No Bearing on NutraSweet s Liability for Prior Non-Payment Defaults.. 47 C. Counterclaim XIII and Defense J Sound Only in Contract, Not Fraud: The Fraud Claim and Defense Must be Dismissed As A Matter of Law Fraud Claims Based on Representations Contained in, and Not Collateral To, an Agreement Are Invalid The Existence of An Outside Representations Disclaimer, a Merger Clause and a Limitation of Liability Provision Preclude Fraud Claims and Defenses Based on any Contractual Representation NutraSweet Is Not Requesting, Nor is it Entitled to, Special Damages 56 D. NutraSweet s Other Counterclaims and Defenses Also Sound Only in Contract, and any Fraud Claims Relating Thereto Should Likewise be Dismissed.. 57 E. All of NutraSweet s Counterclaims and Defenses Seeking Rescission are Prohibited, As a Matter of Law Under the Section 9(g)(iii) Limitation of Remedy Clause of the APA The Parties Agreed in APA Section 9(g)(iii) to Preclude the Remedy of Rescission Limitation of Remedy Provisions Between Sophisticated Business Entities Are Routinely Enforced and Will Not Be Disturbed Based on Allegations iii

5 of Intentional False Contractual Representations or Breaches of Warranty Limitation of Remedy Provisions Applicable to Both Contracting Parties Are Inherently Reasonable and Not Subject to Challenge Simply Based on Claims of Intentional False Contractual Representations or Breaches of Warranty NutraSweet s Authorities Deal With Clauses Wholly Exculpating Liability and Do Not Address Reciprocal Limitation of Remedy Provisions between Sophisticated Business Parties.. 64 F. The Remedy of Rescission is Not Available or Appropriate The Extraordinary Remedy of Rescission Based on Breach of Contract is Unwarranted.. 66 a. The Fundamental Purpose of the Definitive Agreements Was Not Destroyed 66 b. The Element of Willfulness is Not Present c. NutraSweet s Knowledge of, and Participation in, Anticompetitive Activity Taking Place Before the APA was Executed in 2003 Belies its Allegations of Daesang s Willfulness. 70 i. NutraSweet s Participation in Anti-Competitive Activity Prior to ii. NutraSweet Was Fully Aware of Anti-Competitive Behavior By Other Aspartame Producers Rescission On Any Theory Is Unavailable Unless Chosen Promptly Monetary Damages Must be Proven to be an Inadequate Remedy and the Status Quo Must be Possible to Restore 81 G. NutraSweet Cannot Establish Its Breach of Contract Counterclaims and Defenses Daesang Did Not Materially Breach the APA or the Processing Agreement or Otherwise Fail to Perform its Obligations Under Those Agreements.. 84 a. NutraSweet Cannot Prove That Daesang, Which Substantially Performed the Terms of the APA, Materially Breached APA Section 3(f) 85 i. NutraSweet is Barred from Using the Park Affidavit in This Proceeding 85 iv

6 ii. There Was No Material Breach of APA Section 3(f) b. NutraSweet Cannot Prove That Daesang Materially Breached Any Other Provision of the APA or the Processing Agreement. 94 i. APA Section 3(j)(viii) Aspartame Manufacturing Process. 94 ii. APA Sections 3(q) and 3(v) Customer Complaints and Sales Specs.. 96 iii. APA Sections 3(u) and 6(f) Production Capacity 99 iv. Processing Agreement Articles 4.2(c) and (d) and Exhibit 4.2(c) Manufacturing Costs 102 v. Processing Agreement Articles 2.4 and 2.5(a) and (b) Maintenance and Capital Expenditures 105 vi. Processing Agreement Articles 2.1 and 3.1 Conformance with Sales Specifications 106 vii. Other Claimed Breaches NutraSweet Failed to Perform Its Obligations Under the APA NutraSweet Has Failed to Present Any Evidence of Injury or Damages Due to A Breach of APA Section 3(f), and Cannot Prove It Has Suffered Any Injury or Damages Respecting Any of its Claims 110 a. NutraSweet Cannot Establish Damages in Connection with its Claim for Breach of APA Section 3(f). 112 b. NutraSweet Cannot Establish Damages with Respect to Any of Its Other Counterclaims H. NutraSweet s Counterclaim XIII and Defense J Are Barred by New York s Statute of Limitations The Six-Year Limitations Period Expired on April 30, 2009, Prior to NutraSweet s Assertion of Counterclaim XIII and Defense J 116 v

7 2. NutraSweet s Claim of Fraudulent Concealment is Frivolous and Belies Its Prior Admissions in the Price Fixing Action 123 a. There is No Evidence Supporting an Equitable Tolling of the Statute of Limitations b. NutraSweet Was On Inquiry Notice of A Possible APA Section 3(f) Claim at Least as Early as March I. NutraSweet Has Failed to Establish Its Invalid Fraud Counterclaims and Defenses Daesang Did Not Make a Material Fraudulent Misrepresentation NutraSweet Has Presented No Evidence of An Intent to Deceive NutraSweet Cannot Establish that it Justifiably Relied on The Alleged Misrepresentation Contained in Section 3(f) of the APA Since it Knew of, and Participated In, Anti-Competitive Activity NutraSweet Cannot Establish Causation or Injury NutraSweet Has Offered No Proof that it Suffered Damages Due to Any Fraud 133 III. CONCLUSION. 135 vi

8 I. INTRODUCTION In its opening papers, NutraSweet continues its attempt to avoid its payment obligations to Daesang by pursuing groundless defenses and counterclaims and throwing a variety of false, immaterial and stale accusations against the wall in the hope that something sticks. Nothing does. A. NutraSweet s JDA Defense Lacks Merit Daesang, in its Pre-Hearing Opening Brief, set forth four reasons why NutraSweet is not entitled to rescission under any of its claims or defenses, including based on the JDA or fraud, breach of contract or any other theory. NutraSweet s ploy to rescind pursuant to the JDA cannot be sustained for the following additional reasons: i. 10 of the JDA was specifically superseded by the APA, which deals with the same subject matter and contains provisions that cover or vary the right of rescission contained in the earlier JDA - the terms of the APA, in fact, eliminate any ability to rescind the Transaction on the bases advanced by NutraSweet in this proceeding; ii. 10 of the JDA, a self-described preliminary agreement signed in 2002, was abandoned during the period when the APA and the Processing Agreement were being negotiated; and iii. the Price Fixing Action did not trigger any right to rescind under the JDA, as it: (a) did not mention the APA or otherwise challenge NutraSweet s purchase of assets from Daesang (i.e. the Transaction ) in any respect whatsoever; and (b) was not, as both the District Court for the Eastern District of Pennsylvania and the Third Circuit Court of Appeals held, brought by a customer with annual worldwide aspartame requirements in excess of 1,000,000 pounds as required by the JDA.

9 B. NutraSweet s Counterclaims and Other Defenses, Including its New Counterclaim XIII and Defense J, are Baseless NutraSweet s counterclaims and defenses unrelated to the JDA must likewise be denied for several reasons. 1. NutraSweet s Fraud Claims and Defenses Should be Summarily Dismissed NutraSweet tries to advance duplicative fraud and breach of contract claims based on the very provisions contained in the parties agreements. All of these counterclaims and defenses sound only in contract and cannot, as a matter of law, be asserted as fraud. Since the APA and the Processing Agreement include disclaimers of outside representations, merger clauses and limitation of remedy provisions, none of the claimed actionable representations set forth in these agreements are collateral or extraneous and do not form the basis for claims of fraud. NutraSweet also does not seek special damages and cannot assert the existence of a legal duty owed to it by Daesang separate and apart from the duty to perform the APA or the Processing Agreement. 2. Rescission Under any Theory Is Unavailable As A Matter of Law Under APA Section 9(g)(iii) or Common Law NutraSweet s repeated pleas to rescind 1 the APA and the Processing Agreement, based on any theory, must be denied. Rescission is unavailable, again as a matter of law, under Section 1 NutraSweet seeks only rescission, and has not requested any damages, in connection with most of its counterclaims [see NutraSweet s Prehearing Mem., pp (mentioning only rescission based on alleged breaches of Sections 3(f), 3(j)(viii), 3(q) and 3(v) of the APA); pp (mentioning both rescission and damages based on alleged breaches of Sections 3(u) and 6(f) of the APA and Articles 4.2 and 2.4 of the Processing Agreement); and pp (mentioning only damages based on alleged breaches of Articles 2.1 and 3.1 of the Processing Agreement)]. In fact, NutraSweet has expressly represented to the Tribunal that it is not requesting any damages respecting Counterclaim XIII and Defense J (breach of APA Section 3(f) compliance with laws provision) [Daesang Ex. 44, p. 3]. With regard to all of its claims, NutraSweet, for the most part, has offered no proof that its alleged injuries or damages were 2

10 9(g)(iii) of the APA, which binds two highly sophisticated commercial entities and specifically precludes both parties ability to rescind. Provisions in agreements between, and extensively negotiated by, sophisticated commercial parties represented by counsel cannot be disturbed. The Tribunal need not go any further in denying the remedy of rescission. In addition to the operation of the Section 9(g)(iii) contractual waiver precluding the ability to rescind, NutraSweet is likewise unable to obtain the extraordinary remedy of rescission pursuant to common law. Under any reasonable analysis of NutraSweet s claims and its stale request for rescission several years after it learned of facts supposedly giving rise to those claims, Daesang did not commit any breach or misrepresentation that was so vital to the transaction such that the fundamental purpose of the parties agreements were defeated, nor were the essential objectives of those contracts destroyed. 3. NutraSweet Has Failed to Establish Any of its Claims and Defenses on the Merits Moreover, on the merits, NutraSweet has failed to offer sufficient proof establishing, and in some instances it has completely ignored, the requisite elements for each of its claims. NutraSweet s deficient offer of proof is understandable, since the evidence, including NutraSweet s admissions, clearly shows that Daesang did not materially breach any contract or commit any fraud to begin with. a. NutraSweet Cannot Establish that Daesang s Alleged Breach of APA Section 3(f) Destroyed the Principal Objectives of the Parties Agreements, Materially Affected the Core Obligations of the Agreements or Caused any Injury NutraSweet s new Counterclaim XIII and Defense J, alleging that Daesang, by supposedly violating antitrust laws back in the 1990 s, misrepresented in April 2003 that it had proximately caused by Daesang s alleged transgressions, or any real proof that its claimed damages have any evidentiary validity. 3

11 been in compliance with applicable laws in all material respects, is particularly demonstrative of the frivolity of NutraSweet s positions advanced in this proceeding. Even if this claim and defense were not untimely and barred by New York s statute of limitations (which it is), any alleged antitrust violations taking place several years prior to the execution of the APA by Daesang, the smallest producer of aspartame, is irrelevant to the purchase of Daesang s assets by NutraSweet, which assumed no Daesang liabilities [Hearing App. A, 2(b) No Assumption of Liabilities, p. 9, and Retained Liabilities, p. 7], and cannot constitute a material breach of Section 3(f) of the APA. No claimed failure by Daesang to comply with antitrust laws defeated the principal objective of the parties agreements, had any effect on the ability of the parties to perform the core obligations of the definitive agreements or the value of the assets purchased by NutraSweet, nor did it otherwise cause any injury, loss or damage to NutraSweet. b. NutraSweet Participated In, and Was Well Aware of, Anti-Competitive Activity in the Aspartame Market Throughout the 1990s and into the 2000s NutraSweet disingenuously claims that it had no knowledge of anti-competitive activity allegedly committed by Daesang and other aspartame producers prior to 2003, and would not have entered into the APA and the Processing Agreement had it known of this behavior. A review of the history and traits of the aspartame market, including anti-competitive actions undertaken by NutraSweet itself, reveals just how ludicrous this position is. NutraSweet, by far the largest producer of aspartame in the world from the product s inception in the early 1980 s through April 2003 (a period during which the number of aspartame producers, including NutraSweet, ranged from 2 to 4), had dominated the business for over twenty years prior to the execution of the APA and was fully aware of every aspect and trait of the aspartame market, including how prices were established in the industry [Expert Testimony 4

12 of Dr. Michael Salinger dated February 24, 2011 ( Salinger Test. ), 23 24, 27, 29, 50, 53-62, 81, 84]. In fact, it was the key participant in anti-competitive behavior affecting the market. Indeed, NutraSweet enjoys a checkered history in the aspartame industry. It was itself enjoined by the Competition Tribunal in Canada for its several and frequently repeated anticompetitive acts, violations and abuses of the Canadian Competition Act in the 1990 s, each of which have had and are having the effect of preventing or lessening competition substantially [Daesang Ex. 45, pp. 91, 101, ]. It was a named defendant in approximately 12 U.S. price fixing actions in 2006 based on its own anti-competitive behavior, including its participation in a conspiracy to fix prices [see e.g. Daesang Ex. 35, 21-24, 55-57, 61-64, 74-83, 85-90]. NutraSweet s internal s, prepared by the top sales executive of the company and sent in June 2004 specifically acknowledge that there are competitors within the aspartame industry who have a history of price fixing [Daesang Ex. 46, p.1]. Its customized market report dated November 1997 references that one competitor, Holland Sweetener, was on board for price increase a price increase originally contemplated by NutraSweet and conveyed by NutraSweet s consultant [Daesang Ex. 47, pp. 29 and 60; Salinger Test., 59]. All four aspartame producers freely exchanged sensitive business information (including each competitor s pricing information and cost of production) throughout this time period, creating at least a tacit agreement amongst all participants to, in some fashion, cooperate in their pricing [Salinger Test., 56, 59-62; Daesang Ex. 47, pp. 2-3; Ex. 48, p.3; Ex. 49, pp , 22-25, 35, 41-43, 49, 50, 53-55, 65-66, 69-71, 87; Ex. 50, p. 51; Ex. 52, pp. 8-9]. NutraSweet s business records also reveal the startling and unorthodox relationship between NutraSweet and Ajinomoto, which, together, operated as a single supplier of aspartame at least throughout the 1990 s and into the 2000 s. In fact, NutraSweet disclosed its re-sale 5

13 prices to Ajinomoto and, by its own admission, did not even consider Ajinomoto a competitor during this time period, but, instead, described Ajinomoto as a valued partner in their virtual monopoly [Daesang Ex. 47, p. 2; Ex. 53, NSC 94180; Ex. 55, NSC ; Ex. 56, NSC ; Ex. 57, pp. 2, 9, 12, 17; Ex. 164]. This relationship served as an anti-competitive stranglehold on the entire aspartame industry [Salinger Test., 27-41, 47]. For example, NutraSweet and Ajinomoto were equal partners in a joint venture arrangement for the manufacture and supply of aspartame in Europe, and jointly represented, by far, the largest supplier of aspartame in the European Community. The Commission and the Court of the European Communities convicted, and affirmed the convictions of, both NutraSweet and Ajinomoto, and leveled duties and penalties against each of them in connection with an antidumping scheme designed to eliminate Holland Sweetener as their only competitor in Europe [Daesang Ex. 58, 85, 86, ]. With respect to non-european countries, at least throughout the 1990 s, NutraSweet and Ajinomoto conducted business pursuant to an arrangement involving NutraSweet s purchase of, essentially, Ajinomoto s entire production of aspartame except what was required for the Japanese market. The purchase price paid to Ajinomoto for product amounted to a substantial discount from NutraSweet s re-sale prices to its customers [Salinger Test., 35, 36, 38-40; Daesang Exs. 53 and 55]. Ajinomoto essentially ceded to NutraSweet any participation in the United States market, a geographic marketplace for aspartame constituting 60% to 65% of the world aspartame market. This intimate relationship between these two largest worldwide aspartame suppliers (effectively controlling 85% to over 90% of the world aspartame market) characterized the anti-competitive aspartame market prior to Ajinomoto s complete split from 6

14 NutraSweet in the latter part of Indeed, NutraSweet was not merely the price leader throughout this period of time, it was the price dictator. Given the timing of the alleged wrongdoing and the above undisputable facts, NutraSweet cannot possibly establish that it was induced by, or justifiably relied on, the APA Section 3(f) representation as relating to anti-competitive activity, nor can it seriously claim that Daesang, by agreeing to a generic compliance with laws provision, intended to deceive NutraSweet into entering into the APA. Moreover, in a market consisting of only three participants (NutraSweet/Ajinomoto were acting as one supplier), any anti-competitive behavior between Daesang and another competitor would have been wholly ineffective and irrelevant unless NutraSweet, the worldwide market leader, was also a co-conspirator. Likewise, NutraSweet s bald and simplistic declaration that it would not have entered into the definitive agreements had it known of Daesang s alleged prior illegal anti-competitive behavior rings astonishingly hollow given the complete immateriality of this ancient activity to predicting the future of the aspartame market [Salinger Test., 15, 51, 79-84]. In fact, as NutraSweet was well-aware, in the four-years immediately preceding the execution of the APA, Daesang s behavior was intensely competitive: from 1999 and continuing through 2003, it was Daesang s aggressive discounting and bidding, coupled with its expansion of production capacity, that was the main factor in causing the continued downward pressure on aspartame prices, including the artificially high prices charged by NutraSweet [Id., 15, 49, 51, 67, 68, 82; Daesang Ex. 90, pp. VI, 57; Ex. 91, p.2]. NutraSweet deliberately ignores all of these facts and applicable law, and superficially declares that it can escape the APA s Section 9(g)(iii) limitation of remedy provision it previously agreed to, and that it has otherwise met its substantial burden for proving liability and 7

15 obtaining extraordinary rescission relief, simply by waiving the Affidavit of Dae Yeob Park in front of the Tribunal. c. NutraSweet s Prior Admissions, the Parties March 2005 Settlement and Other Direct Evidence, Including the Provisions of the APA and the Processing Agreement, Dispose of All of Its Other Counterclaims and Defenses NutraSweet has also seen fit to advance a laundry list of counterclaims and defenses regarding APA representations and Processing Agreement provisions dealing with capacity, sales specifications, product quality, manufacturing costs and other sundries which it alleges it learned of back in 2003 and NutraSweet, incredibly, argues that these stale claims entitle it to the extraordinary remedy of rescission, even though it was supposedly aware of these alleged breaches almost immediately after the definitive agreements were signed yet continued to operate and reap the benefits of those agreement for several years. It even, for example, asks for an award of lost profits in contravention of Article 10 of the Processing Agreement which definitively bars either party from obtaining indirect, special or consequential damages including alleged loss of profits or revenues [Hearing App. B, Art. 10]. Not one of these claims has any merit. In fact, almost all of them can be rejected out of hand based on the provisions of the APA and the Processing Agreement as well as express admissions made by NutraSweet. For instance, in February 2004, NutraSweet, in response to a question about the Gunsan plant s production capacity, represented that THE MAJORITY OF THE PROCESS IS ALREADY AT THE 3,000 MT CAPACITY [Daesang Ex. 59 (emphasis added)]. Additionally, in July 2005, NutraSweet stated in an internal business report that Daesang s capacity demonstration [was] successfully completed, the actual volume [is] in excess of original estimates and that Daesang s product quality conforms with contractual specifications [Daesang Ex. 60. p. 20 (emphasis added)]. NutraSweet also acknowledged that 8

16 the parties, in March 2005, resolved almost all of the issues it has decided to revive in this proceeding relating to product pricing and quantity issues, for example, admitting that the parties achieved agreement on 2005 product pricing and, as a result of the parties agreement, NutraSweet enjoyed $0.3 million savings to budget and assured itself a volume commitment favorable to original assumptions [Daesang Ex. 60, p. 20]. In the face of these clear admissions, one wonders why NutraSweet has chosen to waste everyone s time on such frivolous counterclaims. 4. NutraSweet s Motive is to Avoid Purchase Price Payment Obligations and Use Daesang as an Insurance Policy for Its Own Business Risks and Market Downturns NutraSweet s obvious intent is to create enough smoke and confusion to distract the Tribunal from NutraSweet s clear liability as a result of its non-payment defaults. Its desperate efforts to rescind the APA and free itself of its payment obligations are not surprising given the economic impact of the adverse changes in the marketplace, having nothing to do with Daesang s conduct, that occurred subsequent to May Among such changes were: (i) the ruthless competition from Chinese producers and their relentless price cutting tactics; (ii) the unpredicted turnaround of Ajinomoto resulting in its aggressive bidding practices at the end of 2003 which led to the loss of major customers and a marked decline in NutraSweet s sales volume (over 2200 metric tons); (iii) the meteoric rise of Splenda to a dominant position in the tabletop business, resulting in a sharp decline of the use of aspartame in the tabletop segment; (iv) the increased practice of blending and the use of substitutes, resulting in a reduced demand for aspartame; and (v) the increased bargaining power of large customers due to NutraSweet s weakened position [Salinger Test., 69-76]. 9

17 The APA and the Processing Agreement were negotiated and executed by large, sophisticated commercial parties, each of whom had been in the aspartame business for more than a decade. NutraSweet s selfish attempt to have Daesang serve as an insurance policy and accept NutraSweet s economic responsibility for ordinary business risks and market downturns should not be entertained. The result sought by NutraSweet is also absurd given that NutraSweet earned substantial profits as a result of its entrance into the APA and the Processing Agreement [Daesang Ex. 61]. The Tribunal should deny each of NutraSweet s counterclaims and defenses and find in favor of Daesang in all respects. II. ARGUMENT A. NutraSweet Had No Right to Rescind Under the JDA of the JDA Was Superseded by the APA and the Processing Agreement a. The APA s Section 10(c) Merger Clause Extinguished 10 of the JDA The APA included the following merger clause: Entire Agreement : This Agreement, the Ancillary Agreements (including the documents referred to herein and therein) and the Non-Disclosure Agreement between the parties dated July 23, 2002, constitute the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the parties, written or oral, to the extent they related in any way to the subject matter hereof [Hearing App. A, 10(c) (emphasis added)] 2. Notably absent from the list of agreements set forth in the APA s merger clause is any reference to the JDA. New York law fully enforces merger clauses, including those that contain supersedes 2 Ancillary Agreements are defined in the APA as meaning the Processing Agreement, the Distribution Agreement and the Intellectual Property Agreement, and all other agreements, documents and instruments to be executed and delivered in connection with the consummation of the transactions completed in the APA [Hearing App A, p.1 Ancillary Agreements (emphasis added)]. 10

18 provisions. Goldman v. White, 11 N.Y.3d 173, (2008); Citigifts, Inc. v. Pechnik, 112 A.D. 2d 832, 834 (1 st Dept. 1985), aff d 67 N.Y.2d 774 (1986). A writing that includes a merger clause is presumed to constitute the entire contract. Goldman, 11 N.Y.3d at Extrinsic and parol evidence, including statements made in prior agreements or other written documents, is inadmissible to create an ambiguity in a written agreement which is complete, clear and unambiguous upon its face, especially where the agreement contains a merger clause. W.W.W. Associates v. Giancontieri, 77 N.Y.2d 157, (1990); Instinet Inc. v. Ariel Ltd., 2010 U.S. Dist. LEXIS 20159, at *12 (S.D.N.Y. March 5, 2010)(prior written agreements are inadmissible to explain, modify, vary or supplement the parties contract). Merger clauses and the parol evidence rule similarly bar any evidence outside the four corners of the latter agreement (i.e. the APA) which vary or add to the terms of that agreement. R/S Associates v. New York Job Dev. Auth., 98 N.Y.2d 29, 33 (2002); Orbit One Communications v. Numerex Corp., 692 F. Supp. 2d 373, 379 (S.D.N.Y. 2010)(extrinsic evidence offered to prove contractual intent or to vary plain meaning of asset purchase agreement barred by broad merger clause). See also Richardson, On Evidence, (Farrell Ed. 2008)( Where the parties have reduced their agreement to a writing, the parol evidence rule excludes evidence of any prior oral or written agreement, or of any contemporaneous oral agreement when offered to contradict, vary, add to or subtract from the terms of the writing ). NutraSweet has not argued that the APA s merger clause is unclear or ambiguous, nor can it do so. All prior agreements dealing with the same subject matter are conclusively subsumed and extinguished by an agreement which includes a merger clause. Cornhusker Farms, Inc. v. Hunts Point Cooperative Marketing, Inc., 2 A.D.3d 201, 204 (1 st Dept. 2003)(all prior written agreements extinguished by strict merger clause in a subscription agreement which provided 11

19 that it constituted the entire agreement of [the parties] with respect to the subject matter hereof, and all prior understanding and agreements... are merged herein ); Friedman v. Ocean Dreams, LLC, 15 Misc.3d 1146 (Sup Ct., Kings Cty. 2007), aff d 56 A.D.3d 719 (2d Dept. 2008); Independent Energy Corp. v. Trigen Energy Corp., 944 F.Supp. 1184, 1195 (S.D.N.Y. 1996). b. JDA 10 Relates to, and In Fact Covers, the Same Subject Matter Addressed in the Provisions of the Later APA The earlier written agreement need not have the same exact purpose, or contain precisely the same provisions, to be superseded by a later agreement. An agreement containing a broad merger clause expressly supersedes any previous agreement or provision covering or relating to the same subject matter, even though the context and purpose of both contracts differ. Medtech Products Inc. v. Ranir, LLC, 596 F.Supp.2d 778, 793 (S.D.N.Y. 2008)(confidentiality provision of General Release of a Consulting Agreement superseded prior confidentiality provisions of Proprietary Information and Inventions Agreement); Iovanella v. Locascio, 2003 U.S. Dist. LEXIS 23011, at *13 (S.D.N.Y. Dec. 17, 2003) (earlier preliminary agreement for transfer of New York Cotton Exchange Seat superseded by later agreement for lease of seat). If a provision in the earlier contract is related to the subject matter of the later agreement, or has the same general purpose as a provision in the later agreement, the earlier provision is superseded even if the later agreement s merger clause does not expressly cite to the prior agreement or provision. Medtech, 596 F.Supp.2d at 810 (later provision supersedes an earlier one if the two provisions have the same general purpose or address the same general rights or if the two provision cannot coexist or work in tandem ). For example, in Medtech, a General Release of a Consulting Agreement contained a merger clause superseding all prior agreements with respect to the subject matter hereof. That 12

20 General Release also included a confidentiality clause. The parties had previously executed a Proprietary Information and Inventions Agreement which contained confidentiality provisions. Although the context and purpose of the two contracts were different, because of the presence of the merger clause, the court held that the General Release of a Consulting Agreement superseded the confidentiality provisions contained in the earlier Proprietary Information and Inventions Agreements since both contracts had provisions, in general, cover the same subject matter i.e. confidentiality. Id., 596 F.Supp.2d at 793. Likewise, if the provisions of the prior agreement add to those of a subsequent agreement relating to the same subject matter, and the later agreement contains a merger clause, the prior provisions are superseded. Bero Contracting & Dev. Corp. v. Vierhile, 19 A.D. 3d 1160, 1161 (4 th Dept. 2005), app. denied 9 N.Y.3d 808 (2007)(prior option agreement s provision giving developer exclusive right to construct homes in subdivision superseded since later purchase agreement was silent on developer s exclusive construction right). By its terms, the APA is a completely integrated writing containing a very broad merger clause providing that the APA, the Ancillary Agreements and the Non-Disclosure Agreement of July 23, 2002 constitute the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they related in any way to the subject matter hereof [Hearing App. A, 10(c), p.31 (emphasis added)]. The Processing Agreement contains a similar merger clause 3 [Hearing App. B, Art. 23]. Neither the APA nor the Processing Agreement incorporates the JDA therein. The 3 The Processing Agreement s merger clause provides that the Processing Agreement, the APA and the Ancillary Agreements represent the entire agreement of the parties regarding the subject matter hereof and that there are no promises, terms, conditions or obligations concerning the subject matter hereof other than those contained herein... [Hearing App. B, Art. 23]. 13

21 definition of Ancillary Agreements does not include the JDA [Hearing App. A, p.1 Ancillary Agreements ]. Any argument that 10 of the JDA does not relate in any way to the subject matter of the APA is without merit. That paragraph deals with a rescission of the APA itself. It therefore relates in every way to the APA. Indeed, 10 of the JDA repeatedly refers to the Transaction (i.e. the APA), discusses that the parties have executed a letter of intent relating to [the APA] and that they will negotiate the definitive agreements for [the APA], and, most importantly, contemplates a right to rescind the APA [Daesang Ex. 32, pp. 5-7 (emphasis added)]. Based on this alone, it is abundantly clear that 10 of the JDA, which by its own terms relates to the APA, was superseded by the APA. c. 10 of the JDA Adds to or Varies Section 9(g)(iii) of the APA Furthermore, the APA contains specific provisions precisely addressing NutraSweet s ability to rescind or terminate the APA [Hearing App. A, 2(f) Rescission Right As A Result of IP Litigation, 8(a)(ii) Termination of Agreement, and 9(g)(iii) Limitations and Deductions ]. APA Section 9(g)(iii) provides that, except for NutraSweet s ability to terminate before closing ( 8(a)(ii)) and NutraSweet s right to terminate upon a judgment in IP litigation ( 2(f)), NutraSweet has no right to rescind, revoke or terminate this Agreement in the event of any breach or failure to perform any representation, warranty covenant or obligation under this Agreement or under any of the Ancillary Agreements [Id., 9(g)(iii), p.43 (emphasis added)]. Clearly, NutraSweet s right to rescind or terminate the APA set forth in 10 of the JDA relates in any way to provisions of the APA explicitly addressing NutraSweet s right to rescind or terminate, and is therefore extinguished by the APA s broad merger clause. Indeed, how can a provision that deals only with a right to rescind or terminate the APA be determined not to relate 14

22 to the subject matter of the APA, which includes a provision (i.e. Section 9(g)(iii)) that specifies the only grounds warranting the exercise of a right to rescind or terminate? Any ability to rescind the APA obviously relates to and affects virtually every obligation and right provided under the APA. Bero, 19 A.D. 3d at 1161, is directly on point. An exclusive right to construct was contained in an earlier land option agreement. A later purchase of land agreement containing a merger clause was executed without mentioning any obligation of defendants to use only plaintiff for construction. Although the contracts had different purposes, the court held that the exclusivity right contained in the earlier written agreement was barred by the parol evidence rule, since the mere absence of that provision in the later contract demonstrated that the parties did not intend for it to be a part of their final agreement. NutraSweet s right to rescind the APA based on the commencement of an antitrust case as set forth in the JDA is not included in the APA. 10 of the JDA (the right to rescind the APA) certainly relates to the subject matter of the APA more closely than the exclusive right to construct relates to the subject matter of a contract for the sale of land addressed in Bero. The absence, in the sale of land contract in Bero, of the exclusive right to construct signaled that such a right was superseded by the parties, just as the absence, in the APA, of the JDA s right to rescind does. d. The APA, Which Refers to One Prior Agreement, Does Not Mention the JDA That the parties expressly referred to only one prior agreement in the APA, the July 23, 2002 Non-Disclosure Agreement, and not the JDA, constitutes conclusive evidence that the JDA was not meant to be included as part of the transaction, especially where the parties agreement contains a strict merger clause. In Cornhusker Farms, 2 A.D.3d at 204, the parties subscription agreement referred to and incorporated floor plans and a construction budget that 15

23 were previously attached to prior agreements, but did not refer to architectural plans. The court held that the absence of any mention of the architectural plans demonstrated that they were not part of the parties transaction, reasoning: If these commercially sophisticated and counseled parties had intended to make [the architectural plans] part of their agreement, they could easily have accomplished that purpose by drafting the contractual writings so that one or more of them expressly incorporated [the architectural plans] by reference. Id. See also Instinet, 2010 U.S. Dist. LEXIS 20159, at *14-15 (no express mention of earlier agreement, signed months prior the execution of later contract, demonstrated parties intent to supersede prior agreement even without presence of a merger clause in later contract) and Lee v. Tetra Tech, Inc., 14 Misc.3d 1235A (Sup. Ct. Monroe Cty. 2007) (failure to reference written 2001 agreement in 2002 agreement with integration clause dispositive; the mere existence of the 2001 agreement cannot create an ambiguity concerning whether the 2002 agreements incorporated the restrictive covenant contained in the 2001 agreement ). Indeed, if at the time of the APA s execution, the parties intended for the JDA to be a part of the definitive agreements, why would the parties expressly refer to the earlier July 2002 Non-Disclosure Agreement, which had a ten-year term, as included as part of the transaction documents, but not refer to the December 2002 JDA? Why would the parties take pains to list all agreements, including the 2002 Non-Disclosure Agreement and the Ancillary Agreements, that constitute the entire agreement yet, by express omission, leave out the JDA? The reasons are obvious. The parties abandoned the JDA during negotiations of the definitive agreements and intended for the APA to supersede and extinguish 10 of the JDA. NutraSweet takes the position that the absence of any reference to the JDA in the APA was due to the parties desire to maintain secrecy, avoid disclosure in a Hart-Scott-Rodino filing, 16

24 and to prevent any government entity from obtaining knowledge of the JDA. This argument fails. A contemporaneous or subsequently executed side letter acknowledging the survival of the JDA or a re-execution of the JDA would have achieved these fictional goals, yet the parties chose not to take any of these steps. This inaction further demonstrates that the parties abandoned 10 of the JDA. NutraSweet and Daesang are very sophisticated business parties. To assume that they left an integral provision out of an integrated final document because of confidentiality concerns without any protection against the obvious preclusive effect of the merger clause strains credulity. The author of the American Bar Association article, relied on by NutraSweet, discussing antitrust risk shifting provisions in transactional agreements, supports the very position advanced by Daesang in this proceeding that a divestiture provision (i.e. rescission right) contained in a prior side letter or joint defense agreement, as opposed to in the later merger and acquisition agreement... only works if the [merger and acquisition] agreement does not contain a merger or integration clause that precludes the introduction of extrinsic evidence. John D. Harkrider, Betting on Antitrust Risk Are Antitrust Risk-Shifting Provisions Material to Wall Street? 21 Antitrust 35, 36 (ABA 2007)(emphasis added). There is such a merger and integration clause in the APA. Furthermore, the author of the ABA article also suggests that it would be difficult to withhold a JDA or a side letter from the government in an attempt to maintain secrecy, and cites to a speech in which the then Bureau of Competition Director stated that the government agencies take issue with the withholding of side letters and JDAs and announced that the removal of any right to rescind or terminate from a transaction document and inserting it a side letter or JDA must be disclosed to the government in any Hart-Scott-Rodino filing. Id. 17

25 e. Creditsights and Flightsafety Are Not Applicable to the Merger Clause Analysis in this Proceeding Neither Creditsights, Inc. v. Ciasullo, 2007 WL (S.D.N.Y. 2007) nor Flightsafety International, Inc. v. Flight Options, LLC, 194 Fed. Appx. 53 (2d Cir. 2006), relied upon heavily by NutraSweet, stands for the false proposition that an integration clause must explicitly by name refer to a prior agreement in order to supersede that document. Also, the merger clauses in these cases are not analogous to those at issue in this proceeding. In each of these cases, decided on motions to dismiss at the pleadings stage, the court held that it could not find, as a matter of law, that the applicable merger clause clearly superseded the terms of the prior agreement, which did not clearly relate to the same subject matter as that addressed in the subsequent agreement. CreditSights involved the termination of an employee for cause pursuant to a separation agreement which provided that it constituted the entire agreement regarding the subject matter hereof, and supersedes all prior arrangements or discussions relating to your employment with the Company or termination thereof. Creditsights, 2007 WL at *4 (emphasis added). It subsequently came to light that the employee had violated a separate stock grant agreement, and the employer sought to enforce its rights under that agreement. The employee, in an attempt to escape liability, moved to dismiss at the pleadings stage, claiming that the merger clause in the separation agreement superseded the provisions of the earlier stock grant agreement. The Creditsights court reaffirmed that under New York law, a subsequent contract regarding the same subject matter supersedes the prior contract, and that, if a contract does not have the same subject matter as a previous contract, but provisions in both agreements do relate to the same subject matter, the earlier provision is superseded by the later provision. Id. at *6 (citations omitted). The court then denied the employee s motion to dismiss, holding that the 18

26 merger clause in the latter contract did not address the earlier stock grant agreement because the stock grant agreement did not relate to the employment or termination thereof... Id. at *7 (emphasis added). That is, the separation agreement did not affect any rights the employee had in the stock, and its merger clause was limited only to arrangements relating to employment or termination. In fact, the Creditsights court based its decision on the fact that the separation agreement had no terms which correlate to the [stock grant agreement] provisions regarding the reclaiming of the vested or unvested stock... Id. at *24 (emphasis added). The facts surrounding the APA are the complete opposite. In contrast, not only is the merger clause in the APA significantly broader than the merger clause addressed in CreditSights in that it applies to any prior agreements related in any way to the subject matter hereof, but 10 of the JDA affects each and every right and obligation of both Daesang and NutraSweet under the APA, and specifically those set forth in Section 9(g)(iii), by virtue of the fact that it can operate a termination or rescission of the APA. Therefore, 10 of the JDA clearly correlates to, or is related in any way, to the subject matter of the APA, and is superseded by the effect of the broad merger clause in the APA. Additionally, in support of its holding that, if the subject matter of the two contracts are not the same, the latter agreement must use definitive language indicating it revokes, cancels or supersedes that specific prior contract, and that the merger clause at issue did not do so, Creditsights cites to Globe Food Services Corp. v. Consolidated Edison Co. of New York, Inc., 184 A.D.2d 278 (1st Dept. 1992). Globe Food gives examples of merger clauses that do, as a matter of law, explicitly supersede prior agreements. Included in its examples is a merger clause from Citigifts (492 N.Y.S.2d at 753) that it paraphrases as supersedes any prior agreement. Id., 584 N.Y.S.2d at 821 (citing Citigifts, 492 N.Y.S.2d at 753 ("This agreement supersedes any 19

27 concurrent or previously signed documents")). The APA s merger clause, providing that it supersedes any prior agreements which relate in any way to the APA, is even broader than the merger clauses at issue in Citigifts and those cited by Globe Food as an example of a clause that, as a matter of law, explicitly extinguishes the parties prior agreements even though they do not specifically recite the name and date of the earlier superseded contracts. The issue in Flightsafety was whether, in two successive contracts, a party could sue under the first contract given a merger clause in the second contract that covered all prior agreements with respect to its subject matter. The 1999 contract dealt with pilot training on 29 different aircraft models, whereas the 2002 contract dealt with training on 4 aircraft models, only two of which were included in the 1999 contract. Id., 194 Fed.Appx. at 55. Based on these facts, the Flightsafety court merely held that the issue was not appropriate on a motion to dismiss, since the facts presented at that early stage were insufficient to determine if the subject matter of the two contracts was the same. Id. ( we cannot conclude as a matter of law that the 2002 Contract s merger clause acted as a release of any and all of FlightSafety s rights and remedies under the 1999 Contract, or that the two contracts involve the same subject matter ). The fact that the merger clause in the 2002 contract did not specifically cite to the 1999 contract as being superseded did not result in a holding that the prior agreement was not definitively superseded. Thus, contrary to NutraSweet s analysis of this case, the Flightsafety court: (1) did not even address the issue as to whether the prior contract had to be specifically identified in the later agreement s merger clause in order to be superseded, let alone make a holding to that effect; and (2) did not mandate that the subject matter be precisely the same in order for the earlier contract to be superseded, and in fact never used the term precisely, but used the term same subject matter. 20

28 f. The Parties Expressed Intent As Set Forth in their Final Agreement Governs It is the parties intent as of the date of the final agreements and as expressed in those agreements that controls. That is the entire point of a final, integrated agreement. W.W.W. Assocs., 77 N.Y.2d at 162 ( A familiar and eminently sensible proposition of law is that, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms ). Therefore, NutraSweet is mistaken when it claims that the earlier JDA s five-year right of rescission reflect[s] the parties intent that the right of rescission would survive the contemplated Transaction Documents. [NutraSweet Prehearing Mem., pp. 8, 11] and cites to the letter from Daesang s Director, H.S. Jeon 4, in support of this erroneous contention. Not only does this argument ignore the fact that Mr. Jeon s letter was prepared and sent at the time the JDA and the letter of intent, each defined as preliminary agreements, were being negotiated in November 2002, and not during the later negotiations of the terms of the APA executed in April , it also ignores the basic principle of New York law that any such extrinsic evidence of the parties intent is inadmissible under the parol evidence rule. R/S Associates., 98 N.Y.2d at 33; W.W.W. Associates, 77 N.Y.2d at 162; 4 NutraSweet s citation to Mr. Jeon s statement, made outside of the four corners of the JDA in a November 1, , more than 5 months before the APA was signed in April 2003, is likewise irrelevant as there is nothing in that indicating that Daesang believed the JDA would be made a part of the later and all-encompassing APA. In fact, the parties were not even negotiating the terms of the APA at the time of Mr. Jeon s . Accordingly, the facts in Prime Commercial, L.L.C. v. Rogner, 52 A.D.3d 1097 (3d Dept. 2008)(provision set forth in a binding addendum signed simultaneously with or subsequent to the execution of the main contract of sale) and Greene v. Cuykendall, 40 N.Y.S.2d 801 (Sup. Ct., Cayuga Cty. 1943)(statements in letters written and sent after the contract was signed and during settlement negotiations), both relied on by NutraSweet [NutraSweet s Prehearing Mem., p. 11], cannot be equated to Mr. Jeon s sent long before the APA was negotiated and signed. 5 Jeon s November 1, also includes points (e.g. a bank guaranty from NutraSweet) which were never included in the parties agreements, further underscoring that this serves no purpose in interpreting the meaning of the final, integrated APA. 21