Justice Shirley Werner Kornreich
In a pre-IPO sale of Facebook stock, Facie Libre, as a third-party beneficiary, sued SecondMarket for breach of contract. Non-party ex-Facebook employee Voskuil entered into a stock transfer agreement with Facie Libre to purchase 75,000. Voskuil was obligated to deliver a counsel’s legal opinion to Facebook. Voskuil entered into a contract with SecondMarket to facilitate the transaction. SecondMarket misrepresented to Facie Libre that the transaction closed upon its transfer of the money to Voskuil, yet SecondMarket did not obtain approval from Facebook’s counsel as they delivered the legal opinion one day after the mandated deadline, resulting in Facebook refusing consent to closing Voskuil’s deal. The court found SecondMarket was not obligated to obtain a legal opinion and deliver it to Facebook, Voskuil was, dismissing Facie Libre’s third-party beneficiary claim against SecondMarket. It noted even assuming SecondMarket had a duty to deliver the legal opinion, its duty was to Voskuil, not Facie Libre, dismissing the negligence claim. Yet, the court found Facie Libre properly pleaded elements of intentional misrepresentation in sufficient detail, and properly pleaded an injury proximately caused by SecondMarket’s false statement that the transaction closed, denying dismissal of the claim.
