Justice Eileen Bransten
Plaintiffs Mill Financial LLC and Mill Football Holdings PLC brought a breach of contract action against former owners, and one creditor, of the Liverpool Football Club of the English Premier League. Plaintiffs asserted that defendant The Royal Bank of Scotland (RBS) breached a tri-party intercreditor agreement between Mill Financial, RBS and Wachovia Bank N.A., succeeded by Wells Fargo Bank N.A. Mill alleged that RBS enforced its interest under the terms of applicable loan documents without first providing written notice to Mill. Plaintiffs also brought a claim against RBS for breach of the implied covenant of good faith and fair dealing inherent in the tri-party agreement. The court denied RBS’s motion to dismiss the complaint, finding that RBS failed to meet its burden, as the party advocating waiver, to show that plaintiffs knowingly waived their right to sue for breach of contract. The court noted that RBS failed to point to any writing that meets the waiver requirements of Section 8 of the tri-party agreement and concluded that, without a writing showing that plaintiffs intended to waive a known claim, they have not waived any claims. The court also found that RBS was obligated to provide notice of its enforcement action.
