Appeals Court Rules in Favor of United Development Funding
August 23, 2019
In an article posted on Blue Vault’s website in December 2017, entitled “How An Attack on a Nontraded REIT Sponsor Made a Hedge Fund Manager $60 Million,” we referred readers to a lawsuit filed by United Development Funding LP (“UDF”) and its related companies accusing hedge fund manager J. Kyle Bass and his closely held company Hayman Capital Management, L.P., of perpetrating a “short-and-distort” scheme by spreading false and damaging information about UDF in order to drive down the company’s stock price and profit by covering their short positions by buying shorted shares at much lower prices.
The premise of the article appears to have been affirmed by the recent court ruling. It has taken over 19 months to arrive at this point in the saga.
The Texas Judicial Branch Fifth Court of Appeals has issued a decision favorable to UDF. The ruling is documented below.
United Development Funding (“UDF,” as described below) announced on August 22, 2019, the Texas Judicial Branch Fifth Court of Appeals (the “Appeals Court”) issued a decision favorable to UDF in the ongoing litigation between UDF and defendants J. Kyle Bass (“Bass”) and Hayman Capital (“Hayman,” as described below, and together with Bass, “Defendants”). Specifically, in the matter of J. Kyle Bass, et. al. versus United Development Funding, L.P., et. al., the Appeals Court affirmed the decision by the Dallas County Court (the “Court”) to deny the Defendant’s bid to dismiss UDF’s lawsuit under the Texas Citizens Participation Act (TCPA).
The Appeals Court reviewed over 2,000 pages of pleadings, affidavits and evidence, concluding:
“UDF’s pleadings and affidavits explain how and why Hayman’s statements were false” and “Illustrate and describe how and why Hayman made the false statements knowingly or recklessly, and chronicle the economic and business damages and losses UDF sustained as a direct result of Hayman’s false statements.”
“This is not a case in which the plaintiff merely provided the “minimum quantum of evidence” necessary to satisfy its burden to state a prima facie case for its claims. See In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). Rather, the prodigious quantity of details and specific fact allegations in UDF’s pleadings and affidavits that support a rational inference establishing the challenged elements is much like a restaurant menu with too many offerings—the difficulty lies in choosing which examples, and what level of detail, to include in our opinion.”
“Hayman’s initial anonymous posts on a website it created using a false name further indicate its state of mind. UDF offered sufficient evidence to support a fact finding that Hayman did not want to be identified as the publisher of the posts challenging the legitimacy and legality of UDF’s business so that its statements would be more certain to plunge UDF’s stock value, resulting in a huge profit to Hayman, which, in fact, is what happened.”
“UDF adduced clear and specific evidence…that supports a rational inference that Hayman intended to interfere with UDF’s economic interests by publishing and disseminating unconfirmed, false and derogatory statements about UDF’s business that were almost certain to have a severe negative impact on UDF’s current and prospective business and on UDF’s stock value; and Hayman deliberately distorted facts, omitted facts contrary to its ‘story’ and purposefully avoided discovering facts that might show the falsity of its accusations.”
“We conclude that UDF met its burden under the TCPA to provide clear and specific evidence establishing that Hayman acted with actual malice and proximately caused UDF’s alleged damages and losses.”
“Likewise, because we conclude UDF stated a prima facie case for its claims for business disparagement, tortious interference with contract, and tortious interference with business relationships, we conclude UDF satisfied its burden under the TCPA to provide clear and specific evidence establishing a prima facie case for its conspiracy claims.”
“UDF backed up its damages claims with affidavits and documentary evidence.”
On November 28, 2017, UDF filed a lawsuit in the Court against the Defendants asserting Hayman made false statements that disparaged UDF’s business and tortuously interfered with its current and prospective contracts and business relationships, and that those statements were made with malice and caused extensive damage to UDF’s business. UDF requested actual and exemplary damages as well as an award of its attorneys’ fees.
On June 12, 2018, the Court, after allowing limited discovery, ruled that the UDF plaintiffs had set forth a prima facie case of intentional business disparagement and tortious interference by the Defendants, denying the Defendants’ motion to dismiss the lawsuit under the TCPA. On June 29, 2018, the Defendants filed a notice of accelerated appeal. UDF filed its Appellate brief on November 15, 2018 opposing the Defendants’ appeal and presented its oral argument to the Appeals Court on May 2, 2019.
On appeal, the UDF plaintiffs were represented by Ellen A. Cirangle, Jonathan E. Sommer and Kyle A. Withers with Lubin Olson & Niewiadomski LLP, who have extensive experience successfully litigating market manipulation claims against hedge funds, Judge Scott A. Brister of Hunton Andrews Kurth LLP, who has previously provided 20 years of judicial service at all levels of the Texas Court system including the Texas Supreme Court, Rodney Smolla, Dean of the Delaware Law School of Widener University and a nationally-recognized expert in First Amendment law.
“All at UDF, our management and employees would like to thank Ellen Cirangle and Lubin Olson, as well as Justice Brister, Dean Smolla and Judge Joe Cox for their stellar legal representation of UDF and our investors,” said UDF’s Hollis Greenlaw. “We believe the Court’s 47-page opinion speaks volumes. All should read it. We will continue to see that all facts and people involved will be pursued. We also strongly affirm that it is our commitment to work vigilantly to expose Bass’s actions, to have him held accountable and to preserve and continue to create shareholder value. Our employees and our investors deserve both vindication and justice, and we are one step closer.”
The complete 47-page opinion can be found at the Texas Judicial Branch Fifth Court of Appeals website (www.search.txcourts.gov), using the Case No. 05-18-00752-CV. No assurances can be given that UDF will receive any damages as a result of the lawsuit, nor can any assurances be given regarding a timeframe for a resolution of the lawsuit. Public documents filed with the court, including discovery and UDF’s filings, can be found at www.udfonline.com/litigation. A complete history of all the court filings related to this case can be found at the Court’s website (https://courtsportal.dallascounty.org/DALLASPROD), using the Case No. CC-17-06253-C.
“UDF” refers to plaintiffs United Development Funding, L.P., United Development Funding II, L.P., United Development Funding III, L.P., United Development Funding IV, United Development Funding Income Fund V, United Mortgage Trust, United Development Funding Land Opportunity Fund, L.P., and United Development Funding Land Opportunity Fund Investors, L.L.C.
“Hayman” refers to defendants Hayman Capital Management, L.P., Hayman Offshore Management, Inc., Hayman Capital Master Fund, L.P., Hayman Capital Partners, L.P., Hayman Capital Offshore Partners, LP and Hayman Investments, LLC.
For more information, see Kyle Bass vs. UDF Memorandum Opinion.
About United Development Funding IV
United Development Funding IV is a public Maryland real estate investment trust. UDF IV was formed primarily to generate current interest income by investing in secured loans and producing profits from investments in residential real estate. Additional information about UDF IV can be found on its website at www.udfiv.com. UDF IV may disseminate important information regarding its operations, including financial information, through social media platforms such as Twitter, Facebook and LinkedIn.
