08-2462-cv L Bessemer Trust Company, N.A v. Branin UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2008 3…

08-2462-cv(L)
Bessemer Trust Company, N.A. v. Branin
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2008 3
(Argued: June 3, 2009 Decided: April 5, 2012) 4
Docket Nos. 08-2462-cv(L), 08-2677-cv(XAP) 5
------------------------------------- 6
BESSEMER TRUST COMPANY, N.A., 7
Plaintiff-Counter-Defendant-Appellee-Cross-Appellant, 8
- v - 9
FRANCIS S. BRANIN, JR., 10
Defendant-Counterclaimant-Appellant-Cross-Appellee. 11
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Before: McLAUGHLIN, CALABRESI, and SACK, Circuit Judges. 13
Appeal by the defendant and cross-appeal by the 14
plaintiff from a judgment of the United States District Court for 15
the Southern District of New York (John E. Sprizzo, Judge) 16
entered after a bench trial. The district court found the 17
defendant liable to the plaintiff for improper solicitation of a 18
client's account under the so-called "Mohawk doctrine," where 19
that account and its associated "good will" had earlier been 20
transferred to the plaintiff by the defendant and others. On 21
appeal, we certified a question to the New York Court of Appeals 22
as to the scope of the "Mohawk doctrine." Bessemer Trust Co., 23
N.A. v. Branin, 618 F.3d 76, 93-94 (2d Cir. 2010). In answer to 24
our question, the Court of Appeals concluded, inter alia, that 25

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1 In "Bessemer I," the district court found defendant
Francis S. Branin, Jr., an investment portfolio manager, liable
to Bessemer, a firm to which he had sold "good will," after one
2
"while a seller [of a business and its 'good will'] may not 1
contact his former clients directly [to seek to attract them to 2
his new firm], he may, in response to inquiries made on a former 3
client's own initiative, answer factual questions." Bessemer 4
Trust Co., N.A. v. Branin, 16 N.Y.3d 549, 559-60, 949 N.E.2d 462, 5
470, 925 N.Y.S.2d 371, 379 (2011) (internal quotation marks 6
omitted). In light of this response, we vacate the judgment of 7
the district court in part and remand for further proceedings. 8
Vacated in part, decision reserved in part, and 9
remanded. 10
DONALD I. STRAUBER, Chadbourne & Parke 11
LLP (Gretchen N. Werwaiss, Marjory T. 12
Herold, and Bernadette K. Galiano, on 13
the brief), New York, NY, for Plaintiff- 14
Counter-Defendant-Appellee-Cross- 15
Appellant. 16
LOUIS P. DiLORENZO, Bond, Schoeneck & 17
King PLLC (Michael I. Bernstein and 18
Michael P. Collins, on the brief), New 19
York, NY, for Defendant-Counterclaimant- 20
Appellant-Cross-Appellee. 21
SACK, Circuit Judge: 22
We return to consider this appeal further, in light of 23
the answer provided by the New York Court of Appeals in Bessemer 24
Trust Co., N.A. v. Branin (Bessemer V), 16 N.Y.3d 549, 949 N.E.2d 25
462, 925 N.Y.S.2d 371 (2011), in response to a question that we 26
had certified to it in Bessemer Trust Co., N.A. v. Branin 27
(Bessemer IV), 618 F.3d 76, 93-94 (2d Cir. 2010). 1 The issue to 28

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of Branin's former clients transferred his account from Bessemer
to Branin's new firm. See Bessemer Trust Co., N.A. v. Branin
(Bessemer I), 427 F. Supp. 2d 386 (S.D.N.Y. 2006). In "Bessemer
II," the district court granted Bessemer's motion for summary
judgment on Branin's counterclaims. See Bessemer Trust Co., N.A.
v. Branin (Bessemer II), 498 F. Supp. 2d 632 (S.D.N.Y. 2007). In
"Bessemer III," the district court fixed the amount of money for
which Branin was liable to Bessemer. See Bessemer Trust Co.,
N.A. v. Branin (Bessemer III), 544 F. Supp. 2d 385 (S.D.N.Y.
2008). In "Bessemer IV," inter alia, we certified a question to
the New York Court of Appeals. See Bessemer Trust Co., N.A. v.
Branin (Bessemer IV), 618 F.3d 76 (2d Cir. 2010). Finally, in
"Bessemer V," the New York Court of Appeals answered our
certified question. See Bessemer Trust Co., N.A. v. Branin
(Bessemer V), 16 N.Y.3d 549, 949 N.E.2d 462, 925 N.Y.S.2d 371
(2011).
2 We follow the New York Court of Appeals' style by placing
the term "good will" in quotation marks. See, e.g., Bessemer V,
16 N.Y.3d 549, 949 N.E.2d 462, 925 N.Y.S.2d 371 passim.
3
which the Court of Appeals gave its attention and to which we now 1
give ours concerns what actions the defendant, a seller of, inter 2
alia, the "good will" 2 of a business, may thereafter permissibly 3
take to woo former clients of the business to a competitor under 4
New York law. The facts of this case and its procedural history 5
are set forth at some length in our previous opinion in this 6
appeal, Bessemer IV. We recount them here only insofar as we 7
think it necessary to explain our disposition of this appeal in 8
light of the New York Court of Appeals' answer to our certified 9
question. 10
BACKGROUND 11
On August 18, 2000, defendant Francis S. Branin, Jr., 12
an investment portfolio manager and the largest shareholder of 13
the firm of Brundage, Story and Rose, LLC ("Brundage"), sold the 14
assets of the firm along with its client accounts and related 15

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4
"good will" to Bessemer. Bessemer IV, 618 F.3d at 80-81. 1
Although Branin originally stayed on at Bessemer as a "client 2
account manager," he soon became dissatisfied with his diminished 3
responsibilities. He left Bessemer to join Stein Roe Investment 4
Counsel LLC ("Stein Roe"), an investment management firm in 5
competition with Bessemer. Id. at 81-82. 6
In negotiations with Stein Roe, Branin touted his 7
ability to bring his Bessemer clients, most or all of whom 8
originally moved with him as part of the sale of Brundage to 9
Bessemer, to Stein Roe. He indicated "his hope that within 10
twelve months of joining the firm[,] he would be able to transfer 11
[to Stein Roe] $1.5 to $1.8 million of the approximately $2.3 12
million in [annual] revenue that he was [then] generating for 13
Bessemer." Id. at 82. "He informed Stein Roe that it was 14
possible, however, that few or none of his Bessemer clients would 15
move their business." Id. "Prior to his resignation from 16
Bessemer, Branin refrained from contacting any of his Bessemer 17
clients to inform them of his impending move" or to discuss 18
anything relating to it. Id. 19
Once Branin joined Stein Roe, that company began 20
crafting and implementing a strategy to entice Branin's former 21
Bessemer clients to move their business to Stein Roe. Id. Part 22
of this strategy involved maintaining Branin's current schedule 23
of fees so that clients would not have their fees increased if 24
they followed Branin to Stein Roe. Id. Additionally, Branin's 25
former assistant at Bessemer, who was otherwise of no interest to 26

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5
Stein Roe as a prospective employee, was hired by the firm "to 1
help Branin transition as much of his client base to Stein Roe as 2
possible." Id. at 84 (brackets and internal quotation marks 3
omitted). "By the following summer, around thirty of Branin's 4
former clients, representing $205 million in assets, had 5
transferred their accounts from Bessemer to Stein Roe, accounting 6
for all but around $23 million of the assets Branin [had] managed 7
at Stein Roe." Id. at 82. 8
Branin did not initiate contacts with his clients in an 9
effort to assist Stein Roe in its strategy to obtain the Bessemer 10
clients. Id. He did, however, respond to their inquiries if 11
they asked why he left Bessemer. Id. If they requested 12
information about his new firm, he sent them Stein Roe's 13
promotional material. Id. The district court found that 14
"Branin's 'standard' answer to clients who asked why he left 15
Bessemer was that 'a firm like Stein Roe was far more appropriate 16
for me, . . . that the method of dealing with clients, that the 17
approach whereby portfolio managers managed the client portfolios 18
and interacted directly with the clients was more . . . 19
appropriate for my training and experience of 30 years in the 20
business.'" Id. (quoting Bessemer Trust Co., N.A. v. Branin 21
(Bessemer I), 427 F. Supp. 2d 386, 391 (S.D.N.Y. 2006), in turn 22
quoting Joint Statement of Undisputed Facts, Ex. A to Pre-Trial 23
Order dated August 3, 2004) (ellipses in Bessemer I). "Branin 24
did not say or suggest that Stein Roe's approach would be better 25
or more appropriate for any particular client, nor is there 26

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6
[record] evidence that Branin explicitly disparaged Bessemer." 1
Id. 2
"The evidence introduced at trial established that 3
Branin had individual meetings, either alone or with other Stein 4
Roe employees participating," with, among others, representatives 5
of the Palmer family, a former client with a large account at 6
Brundage and then at Bessemer. Id. at 82-83. Branin had managed 7
the Palmer account for fifteen to twenty years at Brundage, 8
developing a close personal friendship with Carleton Palmer, III, 9
who represented the family in its dealings with Bessemer. Id. at 10
83. Branin did not notify Palmer and the Palmer family of his 11
move to Stein Roe. Id. But Palmer did call Branin and ask him 12
questions about the move. Id. Branin's responses were, 13
according to Palmer's testimony, very spare. Id. 14
"Palmer followed up [on his inquiries] with a letter 15
requesting specific information as to how the Palmer account 16
might be handled at Stein Roe." Id. Palmer and other members of 17
the Palmer family then scheduled back-to-back meetings on August 18
29, 2002 with Stein Roe and Bessemer to discuss the Palmer 19
account. Id. 20
Branin helped Stein Roe prepare for these meetings by 21
telling other Stein Roe employees about Carleton Palmer and the 22
Palmers' investment philosophy. Id. According to the trial 23
testimony of Carleton Palmer, during the subsequent meeting 24
between Palmer and Stein Roe, Branin "pretty much sat over in the 25
corner and kept quiet," and "played almost no role," "other than 26

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7
to introduce Carleton Palmer to the firm and occasionally amplify 1
a point if he knew it was something [the Palmers] would be 2
interested in." Id. (internal quotation marks and citations 3
omitted). 4
The Palmers thereafter invited Branin to Ohio to make a 5
specific proposal on behalf of Stein Roe. Id. Branin accepted. 6
Id. During the subsequent visit, "Branin informed the Palmer 7
family that they would pay the same fees at Stein Roe that they 8
were then paying at Bessemer, and that the president of Stein Roe 9
would be the 'number two' on the family account." Id. 10
"The next day, . . . September 17, 2002, the Palmer 11
family moved their account to Stein Roe." Id. 12
District Court Proceedings 13
On November 22, 2002, following the departure of the 14
Palmer family and several of Branin's other former Bessemer 15
clients from the firm, Bessemer filed the complaint in this 16
action in New York Supreme Court, New York County. Id. at 84. 17
"Bessemer asserted claims for breach of contract and breach of 18
Branin's duty of loyalty to Bessemer based on Branin's allegedly 19
improper solicitation of clients and impairment of the [']good 20
will['] which Branin had sold to Bessemer in connection with the 21
sale of Brundage." Id. Branin removed the case to the United 22
States District Court for the Southern District of New York based 23
on diversity of citizenship, and filed various counterclaims. 24
Id. 25

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3 The district court also granted Bessemer summary judgment
on Branin's counterclaims, Bessemer II, 498 F. Supp. 2d at 639,
which we affirmed on appeal, Bessemer IV, 618 F.3d at 91-93.
8
The district court denied the parties' cross-motions 1
for summary judgment on Bessemer's claims, and the case proceeded 2
to a bench trial as to liability. Id. The district court issued 3
a memorandum opinion and order on April 10, 2006, concluding that 4
Branin had violated New York law by impairing Bessemer's "good 5
will" in the Palmer account, but that Bessemer had not proven a 6
violation of law by a preponderance of the evidence with respect 7
to any other transferred account. Bessemer I, 427 F. Supp. 2d at 8
397–98. The district court then conducted a separate bench trial 9
on damages, and concluded that Branin was liable to Bessemer in 10
the amount of $826,335 plus prejudgment interest of $402,838, for 11
a total of $1,229,173. Bessemer III, 544 F. Supp. 2d at 390–93. 3
12
Proceedings in this Court 13
Branin appealed the finding of liability and damages. 14
With respect to the district court's finding of liability as to 15
the Palmer account, we determined that New York law regarding the 16
liability of a seller of "good will" for soliciting former 17
clients –- the so-called "Mohawk Doctrine," named after Mohawk 18
Maintenance Co. v. Kessler, 52 N.Y.2d 276, 419 N.E.2d 324, 437 19
N.Y.S.2d 646 (1981) -- was unclear as applied to the facts of 20
this case. Bessemer IV, 618 F.3d at 90. We therefore certified 21
the following question to the New York Court of Appeals: 22
What degree of participation in a new 23
employer's solicitation of a former 24

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9
employer's client by a voluntary seller of 1
that client's good will constitutes improper 2
solicitation? We are particularly interested 3
in how the following two sets of 4
circumstances influence this analysis: (1) 5
the active development and participation by 6
the seller, in response to inquiries from a 7
former client whose good will the seller has 8
voluntarily sold to a third party, in a plan 9
whereby others at the seller's new company 10
solicit the client, and (2) participation by 11
the seller in solicitation meetings where the 12
seller's role is largely passive. 13
Id. at 94. 14
The New York Court of Appeals's 15
Answer to Our Certified Question 16
The New York Court of Appeals accepted and answered our 17
certified question. It noted that, "[u]nder New York common law, 18
a seller has an 'implied covenant' or 'duty to refrain from 19
soliciting former customers, which arises upon the sale of the 20
'good will' of an established business.'" Bessemer V, 16 N.Y.3d 21
at 556, 949 N.E.2d at 468, 925 N.Y.S.2d at 377 (quoting Mohawk 22
Maintenance Co., 52 N.Y.2d at 283, 419 N.E.2d at 328, 437 23
N.Y.S.2d at 650). This covenant, which is effective in 24
perpetuity, is based on the principle that "the vendor is not at 25
liberty to destroy or depreciate the thing which he has sold; 26
there is an implied covenant, on the sale of [']good will['], 27
that the vendor does not solicit the custom which he has parted 28
with; it would be a fraud on the contract to do so." Id. 29
(quoting Von Bremen v. MacMonnies, 200 N.Y. 41, 50-51, 93 N.E. 30
186, 189 (1910)). Thus, the seller of "good will" may not 31

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10
"actively solicit" the customers associated with it. Id. at 557, 1
949 N.E.2d at 468, 925 N.Y.S.2d at 377. 2
Despite these general principles, a buyer of "good 3
will" assumes "certain risks" relating to the continuation of the 4
purchased business. Id. Unless the buyer has also secured from 5
the seller of "good will" a binding promise not to compete, the 6
buyer risks loss of customers to him or her. Id. 7
Rather than creating a "hard and fast rule [to] 8
determin[e] whether a seller of 'good will' has improperly 9
solicited his former clients" in response to our certified 10
question, the Court of Appeals instructed that "in making this 11
assessment on a case-by-case basis, the trier of fact must 12
consider the principles underlying the rule in Mohawk and the 13
factors involved within the relevant industry that may impair the 14
'good will' conveyed by the original seller." Id. at 557, 949 15
N.E.2d at 469, 925 N.Y.S.2d at 378. 16
Among the factors to be considered in this inquiry are 17
whether the seller initiated contact with his or her former 18
clients associated with the sold "good will." "The 'implied 19
covenant' not to solicit former customers bars a seller from 20
taking affirmative steps to directly communicate with them," such 21
as by "send[ing] targeted mailings or mak[ing] individualized 22
telephone calls to his former customers informing them of his new 23

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4 The Court of Appeals made clear that the examples of
impermissible conduct just discussed are intended to be
"illustrative, not exhaustive." Id.
11
business ventures." 4 Id. at 557-58, 949 N.E.2d at 469, 925 1
N.Y.S.2d at 378. 2
The Court of Appeals explained that while a seller "is 3
not free to tout his new business venture simply because a former 4
client has fortuitously communicated with him first," he is 5
allowed to make certain responses to questioning initiated by the 6
former client. Id. The seller "may answer the factual inquiries 7
of a former client, so long as such responses do not go beyond 8
the scope of the specific information sought." Id. at 558-59, 9
949 N.E.2d at 469-70, 925 N.Y.S.2d at 378-79. And "even if 10
prompted," he may not "disparage[] the purchaser of his 11
business." Id. at 559, 949 N.E.2d at 470, 925 N.Y.S.2d at 379. 12
Nor may he "explain . . . why he believes his products or 13
services are superior" in response to a question from a former 14
client. Id. 15
When the seller of "good will" subsequently joins a 16
firm that competes with the buyer, he may "convey certain 17
information about his former client to his new employer," 18
including "a former client's investment preferences, financial 19
goals, and tolerance of risk." Id. However, the seller may not 20
convey to his new employer "information that is proprietary to a 21
purchaser of 'good will.'" Id. Should the former client request 22
a "sales pitch" meeting, as the Palmer family did, the seller may 23

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12
help his new employer prepare for the meeting and "may be present 1
when such meeting takes place, . . . [s]o long as [his] role is 2
limited to responses to factual matters." Id. 3
In sum, the Court of Appeals concluded, "while a 4
seller may not contact his former clients directly, he may, 'in 5
response to inquiries' made on a former client's own initiative, 6
answer factual questions[,] . . . [and] assist his new employer 7
in the 'active development . . . [of] a plan' to respond to that 8
client's inquiries. Should that plan result in a meeting with a 9
client, a seller's 'largely passive' role at such meeting . . . 10
[is permissible]." Id. at 559-60, 949 N.E.2d at 470, 925 11
N.Y.S.2d at 379 (second ellipsis in original; some alterations in 12
original). 13
DISCUSSION 14
"In reviewing a district court's decision in a bench 15
trial, we review the district court's findings of fact for clear 16
error and its conclusions of law de novo." White v. White Rose 17
Food, 237 F.3d 174, 178 (2d Cir. 2001). Having reviewed the 18
legal standard applied by the district court and the facts it 19
emphasized in applying it, with the benefit of the Court of 20
Appeals's answer to our certified question, we conclude that the 21
district court's judgment as to Branin's liability must be 22
vacated. 23
First, the district court placed considerable weight on 24
the fact that Branin intended to transfer his former clients to 25
Stein Roe. It also emphasized the fact that Branin's employment 26

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13
with Stein Roe was consummated with the understanding that he 1
would seek to take his Bessemer clients with him to Stein Roe. 2
See Bessemer I, 427 F. Supp. 2d at 393 ("In addition to Branin's 3
stated intent to transfer his clients, the 'lift-out template' 4
which marked his move to Stein Roe was completely dependent upon 5
him successfully transferring clients from Bessemer to Stein 6
Roe."). While these facts may provide useful background for 7
evaluating the propriety of Branin's actions, the New York Court 8
of Appeals has made it clear that an intent to secure the 9
business of former clients associated with sold "good will" is 10
not ipso facto improper. "[P]rovided that he does not actively 11
solicit" his former customers, Bessemer V, 16 N.Y.3d at 557, 949 12
N.E.2d at 468, 925 N.Y.S.2d at 377 (emphasis omitted), a seller 13
of "good will" may "assist his new employer in the active 14
development of a plan to respond to" former clients' inquiries, 15
id. at 560, 949 N.E.2d at 470, 925 N.Y.S.2d at 379 (brackets, 16
internal quotation marks, and ellipsis omitted). Those very 17
actions were an important part of Branin and Stein Roe's plan to 18
persuade Bessemer clients associated with the sold "good will" to 19
bring their business to Stein Roe. 20
The district court, in making its determination, relied 21
significantly on various actions taken by Branin to make Stein 22
Roe attractive to former clients and ease their transition to the 23
firm, but which were not in the nature of active solicitation. 24
These measures included Branin's hiring of his former secretary 25
to assist him in transferring clients, Bessemer I, 427 F. Supp. 26

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14
2d at 394 ("Branin pushed for the hiring of [the former 1
secretary], and willingly absorbed over half of her compensation, 2
as a way to help him transition clients and to frustrate 3
Bessemer's use of someone who was acquainted with approximately 4
70% of his clients."), and Branin's retention of his fee schedule 5
from Bessemer, id. ("[H]aving the same fees as at Bessemer would 6
facilitate the movement of clients to Stein Roe."). While this 7
conduct may evidence an intent to transfer clients, it is clear 8
from the Court of Appeals's opinion that harboring such an 9
intent, and even taking some action in furtherance of that 10
intent, does not necessarily constitute legally impermissible 11
affirmative solicitation. 12
The district court also focused on Branin's stock 13
response to former clients, including Carleton Palmer, who called 14
and asked Branin why he moved from Bessemer to Stein Roe. See 15
id. at 396 n.10. The court found that Branin's response, which 16
was that "Stein Roe 'was far more appropriate for me' and for 'my 17
training and experience of 30 years in the business,'" was 18
"disingenuous and improper." Id. at 394 (citation omitted). 19
Whether Branin's response was factual in nature or instead the 20
equivalent of "tout[ing] his new business venture simply because 21
a former client has fortuitously communicated with him first," 22
"disparag[ing]" Bessemer, or explaining "why he believe[d] his 23
products or services [were] superior" to Bessemer's, Bessemer V, 24
16 N.Y.3d at 558-59, 949 N.E.2d at 469-70, 925 N.Y.S.2d at 378- 25

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15
79, should be considered by the district court in the first 1
instance in light of the New York Court of Appeals's views. 2
The district court also appeared to place great weight 3
on the fact that Branin helped Stein Roe to organize a "dog and 4
pony" show to entice Palmer to move his business –- "a 5
presentation which" the district court described as "perfectly 6
tailored to [Palmer's] liking by [Branin]." Bessemer I, 427 F. 7
Supp. 2d. at 397. "Armed with information about Palmer that 8
Branin had gathered from years of working with him, Stein Roe's 9
presenters steered clear of topics in which Palmer had little 10
interest and focused only on those things that were of interest 11
to him." Id. at 396 (citations omitted). And as the district 12
court pointed out, this gave Stein Roe a significant advantage 13
over Bessemer when it made a similar presentation to Palmer. Id. 14
But the Court of Appeals has now made clear that at 15
least some tailoring of presentations to former clients of a 16
seller of "good will" such as Branin is permitted. Such a person 17
"is free to convey certain information about his former client to 18
his new employer," including "a former client's investment 19
preferences, financial goals, and tolerance of risk." Bessemer 20
V, 16 N.Y.3d at 559, 949 N.E.2d at 470, 925 N.Y.S.2d at 379. The 21
Court of Appeals also noted that such a seller of "good will" 22
"may also aid his new employer in preparing for a 'sales pitch' 23
meeting requested by a former client." Id. Indeed, he may 24
"assist his new employer in the active development of a plan to 25
respond to that client's inquiries." Id. at 560, 949 N.E.2d at 26

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16
470, 925 N.Y.S.2d at 379 (brackets, internal quotation marks, and 1
ellipsis omitted). 2
Similarly, the district court found it "significant[]" 3
that, although Palmer described Branin's role in the "dog and 4
pony" show as "minor," Palmer testified that "Branin 5
'occasionally amplif[ied] a point if he knew it was something I 6
would be interested in from his relationship with me." Bessemer 7
I, 427 F. Supp. 2d at 396 (citation omitted). The Court of 8
Appeals said explicitly that a seller of "good will" "may be 9
present when such [a] meeting takes place." Bessemer V, 16 10
N.Y.3d at 559, 949 N.E.2d at 470, 925 N.Y.S.2d at 379. On 11
remand, the court should therefore consider whether Branin's 12
"role" at the sale presentation was "limited to responses to 13
factual matters," id., and thus permissible. The court should 14
also make this determination with respect to Branin's subsequent 15
meeting with Carleton Palmer in Ohio, during which Branin 16
"informed Palmer that he would pay the same fees as at Bessemer," 17
and that William Rankin, "the Chief Executive Officer of Stein 18
Roe and a man with whom Palmer was 'very impressed,' [would be 19
the] 'number two' on the Palmer account" if he moved to Stein 20
Roe. Bessemer I, 427 F. Supp. 2d at 396 (citation omitted). 21
Finally, the district court rejected Branin's argument 22
that "he cannot be found to have acted improperly because he was 23
simply responding to his clients." 427 F. Supp. 2d at 396 n.10. 24
The court thought this argument "unpersuasive and not supported 25
by New York law" because the leading cases "place no significance 26

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17
on who initiates the communications between the seller of [']good 1
will['] and his now-former clients." Id. (emphasis added). But, 2
in answering our certified question, the Court of Appeals 3
explained to the contrary that "[a] trier of fact ought to 4
consider whether, following the sale of a business and its 5
[']good will,['] a seller initiated contact with his former 6
customers or clients. Such initiation is particularly relevant 7
where a seller, like Branin, remains in the industry." Bessemer 8
V, 16 N.Y.3d at 557, 949 N.E.2d at 469, 925 N.Y.S.2d at 378. 9
(emphases added). 10
We conclude, with the benefit of the Court of Appeals's 11
additional guidance (which was, of course, unavailable to the 12
district court at the time it was considering this case), that 13
the court's understanding of New York law was clearly in error. 14
We must therefore vacate the judgment of the district court, 15
insofar as it reflects the court's finding of liability against 16
Branin, and remand the matter to the district court for it to 17
apply New York law in accordance with the legal precepts set 18
forth in the New York Court of Appeals' answer to our certified 19
question and, of course, with the opinions of this Court. 20
"We express no view on how the district court should 21
resolve the matter . . . . We merely conclude that, in light of 22
the rulings of the New York Court of Appeals on the certified 23
questions, the district court's [judgment] . . . can no longer 24
stand." Commodity Futures Trading Comm'n v. Walsh, 658 F.3d 194, 25
199-200 (2d Cir. 2011). It will be for the district court in the 26

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18
first instance on remand to decide whether this case in its 1
current posture is best suited for summary judgment practice or 2
for trial. Should this matter come before this Court again, we 3
will review the district court's decision under the ordinarily 4
applicable standards of deference. 5
In our prior opinion, we "reserve[d] decision on the 6
correct method for the calculation of damages" pending the New 7
York Court of Appeals answer to our certified question. Bessemer 8
IV, 618 F.3d at 91. Because we determine that the district 9
court's finding of liability must be vacated and the case 10
remanded for further proceedings, we again reserve decision on 11
the issue of damages. We will consider the issue, if necessary, 12
if the district court finds Branin liable on Bessemer's claim and 13
the case is brought before us on appeal. 14
CONCLUSION 15
For the foregoing reasons, we vacate the district 16
court's judgment insofar as it found Branin liable to Bessemer, 17
and we remand to that court for further proceedings consistent 18
with this opinion and the New York Court of Appeals's opinion 19
answering our certified question. Any further appeal to this 20
Court in this case shall be assigned by the Clerk of Court to a 21
new panel (whether or not including one or more members of the 22
current panel) in the ordinary course. 23
Each party shall bear its or his own costs on appeal. 24

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