Redbird Business Group, LLC et al v. Harrison

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
REDBIRD BUSINESS GROUP, LLC; 	)
REDBIRD BIOSCIENCE OKLAHOMA, 	)
LLC; and RB REALTYCO, LLC, 	)
)
Plaintiffs and 	)
Counter-Defendants, 	)
)
v. 	) 	Case No. CIV-20-098-JAR
)
MATTHEW HARRISON, 	)
)
Defendant and 	)
Counter-Claimant. 	)
AMENDED1
OPINION AND ORDER
This action and the claims asserted by each side in it stems
from an employment agreement between Redbird Business Group, LLC,
Redbird 	Bioscience 	Oklahoma, 	LLC, 	and 	RB 	Realtyco, 	LLC
(collectively 	referred 	to 	hereinafter 	as 	“Redbird”) 	and 	Matthew
Harrison 	(“Harrison”) 	and 	the 	representations 	or
misrepresentations arising both before and after the agreement was
signed.
Beginning 	on 	July 	11, 	2022 	and 	continuing 	through 	July 	14,
2022, 	this 	Court 	conducted 	a 	non-jury 	bench 	trial 	with 	regard 	to
1 This 	Amended 	Opinion 	and 	Order 	is 	entered 	to 	correct 	the 	omission 	of
Counterclaimant’s claim for breach of a guarantee agreement by RB RealtyCo,
LLC. 	To that end, amendments have been made to ¶33 of the Findings of Fact and
¶¶K, L, and N of the Conclusions of Law. 	Additionally, footnote 4 has been
modified 	to 	correctly 	reflect 	the 	claims 	which 	are 	moot. 	Further, 	the
concluding order paragraph has been modified to include the breach of guarantee
claim.
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the 	outstanding 	issues 	in 	dispute 	in 	this 	action. 	After 	the
presentation 	of 	evidence, 	the 	parties 	were 	afforded 	the
opportunity 	to 	file 	proposed 	findings 	of 	fact 	and 	conclusions 	of
law, which were submitted in a timely manner in September of 2022.
This Court has considered all of the evidence presented by way of
live testimony, depositions, exhibits and stipulations as well as
the parties’ proposed findings and conclusions in the formulation
of this Order. 	After said consideration, this Court hereby enters
the following findings of fact and conclusions of law in conformity
with Fed. R. Civ. P. 52:
FINDINGS OF FACT
1. 	Redbird 	was 	a 	venture 	founded 	in 	2018 	by 	William 	Thurman
(“Thurman”) 	and 	Dr. 	Nimesh 	Patel 	(“Patel”), 	a 	medical 	doctor.
(Tr. 	59: 	16-17; 	340: 	9-10). 	Redbird 	operates 	a 	medical 	marijuana
growing 	and 	sales 	facility 	in 	Stillwell, 	Oklahoma. 	(Tr. 	64: 	24-
25). 	The 	Oklahoma 	license 	to 	sell 	medical 	marijuana 	is 	held 	by
Mariteq 	LLC. 	(Tr. 	65: 	1-7). 	Mariteq 	LLC 	is 	wholly 	owned 	by
Thurman. 	Redbird 	Bioscience 	Oklahoma, 	LLC 	is 	a 	professional
service 	company 	providing 	high-level 	consultants 	that 	have
particular expertise in different matters to the Mariteq entities.
(Tr. 424: 8-15). 	RB RealtyCo, LLC owns the real property located
in 	Stillwell, 	Oklahoma 	used 	in 	the 	operation 	of 	the 	business.
(Tr. 65: 8-10, 17-19). 	Redbird Business Group, LLC is 	a holding
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company, 	owning 	a 	majority 	interest 	in 	the 	units 	of 	RB 	RealtyCo
and 	Redbird 	Bioscience. 	(Tr. 	422: 	18-25; 	423: 	1-2). 	In 	turn,
Redbird Ventures, LLC is a manager of Redbird Business Group, LLC,
holding 	a 	controlling 	interest 	in 	that 	entity. 	(Tr. 	423: 	4-10).
Thurman 	owns 	50% 	of 	the 	units 	of 	Redbird 	Ventures 	through 	BTX7
Holdings, Inc. and Patel owns 50% of the units of Redbird Ventures
through DK&S, LLC. 	(Tr. 423: 11-15).
2. 	Thurman 	founded 	Redbird. 	(Tr. 	340: 	9-10). 	Thurman 	is 	the
decisionmaker or manager of Redbird. 	(Tr. 341: 18-19). 	Feedback
is 	provided 	to 	Thurman 	through 	a 	board 	of 	managers 	comprised 	of
five 	or 	six 	individuals. 	(Tr. 	342: 	6-8). 	However, 	decision
making 	to 	commit 	any 	of 	the 	Redbird 	entities 	lies 	with 	Thurman.
(Tr. 342: 9-13). 	Thurman makes the day-to-day business decisions
for 	the 	Redbird 	entities. 	(Tr. 	342: 	14-18). 	He 	exercises
“autocratic 	control” 	and 	makes 	all 	the 	decisions 	for 	Redbird.
(Tr. 181: 17-23).
3. 	Bill 	Brewer 	(“Brewer”) 	with 	Brewer 	Attorneys 	& 	Counselors
(“BAC”) 	is 	an 	attorney 	who 	previously 	represented 	Thurman 	in 	a
dispute in a business venture. 	Thurman considered Brewer a close
friend and trusted him as an 	advisor and lawyer. 	(Tr. 63:9-18).
Brewer was one of the larger shareholders in Redbird, having been
granted shares without a cash contribution with Thurman and Patel.
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(Tr. 	68: 	14-18). 	Brewer 	held 	the 	shares 	or 	units 	through 	a
Delaware LLC, BCM, LLC. 	(PreTrial Order, p. 5, Fact No. 27).
4. 	On August 21, 2018, Thurman and Mariteq, LLC entered into an
engagement 	agreement 	with 	BAC 	(the 	“BAC 	Agreement”) 	“to 	formally
retain 	the 	firm 	to 	provide 	public 	affairs 	and 	general 	advisory
services” to the Redbird venture. 	(Def. Exh. No. 1; Pl. Exh. No.
8).
5. 	Harrison began working for BAC in New York City, New York in
2008 	after 	graduating 	from 	Boston 	University 	with 	a 	Bachelor 	of
Science in Management. 	(PreTrial Order, p. 4, Fact No. 16). 	He
was 	employed 	from 	August 	of 	2008 	until 	May 	or 	June 	of 	2011.
(PreTrial Order, p. 4, Fact No. 17). 	Harrison then attended New
York 	University 	Stern 	School 	of 	Business 	from 	2011 	until 	he
graduated 	in 	2013 	with 	a 	master’s 	degree 	in 	Business
Administration. 	(PreTrial 	Order, 	p. 	5, 	Fact 	No. 	21). 	After
graduating, 	Harrison 	returned 	to 	BAC 	as 	a 	Consultant 	in 	August
2013. 	(PreTrial 	Order, 	p. 	5, 	Fact 	No. 	22). 	Between 	August 	2013
and January 31, 2020, Harrison was an employee of BAC. 	He worked
as 	a 	consultant 	delivering 	BAC’s 	services 	to 	Redbird 	pursuant 	to
the 	BAC 	Agreement 	from 	when 	he 	was 	assigned 	in 	2018 	until 	late-
January 	2020. 	(PreTrial 	Order, 	p. 	5, 	Fact 	Nos. 	23, 	26).
Harrison, who eventually attained the title of as the Director of
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Consulting at BAC, was assigned by Brewer to provide advisory and
business 	consulting 	services 	to 	Redbird 	pursuant 	to 	the 	BAC
Agreement, including helping Redbird with their public relations,
working 	with 	Redbird’s 	outside 	public 	relations 	firm, 	arranging
meetings with supply companies and potential investors, assisting
Redbird 	staff 	with 	financial 	modeling 	and 	analysis, 	advising 	on
strategic business decisions and preparing investor presentations.
(PreTrial Order p. 4, Fact No. 8).
6. 	Brewer 	introduced 	Harrison 	to 	Thurman. 	(Tr. 	74: 	1-2).
Brewer described Harrison as one of the “top young people in his
firm” and spoke of his close relationship with Harrison’s family,
including his father, Tom Harrison. 	(Tr. 74:16-25; 75:1).
7. 	Thurman 	was 	told 	by 	Brewer 	that 	Harrison 	“would 	be, 	. 	. 	.,
his conduit, his liaison, . . . he would be the man that he put in
place 	to 	work 	with 	us 	on 	his 	behalf, 	to 	help 	us, 	advise 	us, 	and
assist us not only in our communication back to Bill Brewer and as
he tried to stay what we call "line of sight" -- good line of sight
on everything and that he would -- he had a lot of great qualities
and 	capabilities 	to 	assist 	us 	as 	we 	tried 	to 	develop 	this
business.” 	(Tr. 76:22-25; 77:1-4).
8. 	Thurman 	acknowledged 	that 	both 	he 	and 	Brewer 	were 	very 	busy
and 	Harrison 	acted as a “go between”. 	As Thurman explained, “by
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having a talented individual that -- that sits between us, it makes
it efficient for us to communicate and -- bidirectionally and to
keep line of sight and everybody's finger on the pulse 	of what's
going on.” 	(Tr. 78:1-11). 	This alleviated the need for Thurman
to speak directly to Brewer. 	(Tr. 78:12-17).
9. 	Thurman 	considered 	Harrison 	to 	be 	“talented” 	and 	that 	they
“worked well together.” 	(Tr. 78:22-23).
10. 	Once 	Harrison 	was 	assigned 	to 	Redbird, 	he 	was 	considered 	by
Thurman to be “a senior advisor, really, pursuant to his role at
Brewer. 	He was in advising me on any -- anything I needed to, if
I 	needed 	to 	communicate 	or 	-- 	we 	were 	looking 	for 	talent 	and
capital. 	Those were our two priorities, and -- and he dove in. .
. . he wasn't in Oklahoma, so, . . ., I didn't have him there on
sight 	daily, 	but 	I'd 	call 	him 	and, 	you 	know, 	go 	through 	the
challenges in trying to find capital and talent, and he was there
to 	help 	us 	and. 	. 	. 	.” 	Harrison 	remained 	officed 	in 	New 	York
while providing services for Redbird. 	(Tr. 79:11-20).
11. 	Thurman and Redbird were constantly looking for “capital and
talent” since the cannabis business they strove to begin required
considerable capital infusion and talent was difficult to attract
or “pretty thin” since the new industry was previously associated
with 	criminality. 	(Tr. 	79:25; 	80:1-24). 	Although 	Thurman 	ran
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Redbird, he and Patel assumed they could recruit individuals from
larger companies to operate the business but this turned out to be
a 	“bad 	assumption” 	as 	there 	was 	“no 	talent 	pool” 	from 	which 	to
draw. (Tr. 80:25; 81:1-20).
12. 	In 	the 	Spring 	of 	2019, 	Thurman 	began 	looking 	for 	executive
staff 	to 	assume 	some 	of 	the 	day-to-day 	operations 	of 	Redbird 	and
expressed that need to Harrison to get his help. 	(Tr. 90:1-18).
Conversations 	turned 	to 	Harrison 	possibly 	taking 	a 	“leadership
role” in Redbird. 	(Tr. 91:8-25; 92:1-21).
13. 	Less formal discussions became more formal when Thurman and
Harrison 	began 	discussing 	Harrison 	assuming 	a 	role 	as 	chief
operating officer (“COO”). 	Thurman informed Harrison that the COO
job would be “awful” because “[i]t's a fist in the boot, and all
roads 	lead 	to 	you.” 	(Tr. 	94:7-17). 	Nevertheless, 	Harrison
continued 	to 	express 	interest 	in 	full-time 	employment 	with
Redbird. 	(Tr. 94:18-21).
14. 	Thurman testified that he believed at first that Harrison was
an attorney with BAC. 	As such, he stated that it was “[Brewer’s]
table” 	and 	“that, 	you 	know, 	I'm 	not 	going 	to 	be 	perceived 	to 	be
recruiting out of Bill's firm; and that, whatever we do, you know,
Bill 	is 	going 	to 	have 	to 	bless 	this.” 	(Tr. 	95:2-7). 	Thurman
stated 	Harrison 	responded, 	“Of 	course.” 	(Tr. 	96:6-8). 	Thurman
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believed that the “intrinsic rules” of business would require the
Brewer 	be 	informed 	of 	Harrison’s 	discussions 	to 	take 	over 	as 	COO
at Redbird. 	(Tr. 98:7-23).
15. 	Thurman and Patel discussed Harrison assuming the role of COO
and 	determined 	to 	make 	a 	formal 	offer 	to 	him. 	Patel 	e-mailed
Harrison 	to 	state, 	among 	other 	things, 	“We 	are 	also 	considering
all board meetings to be held [in Dallas at Brewer’s offices] and
subsequently would love for you to take an active roll as a COO as
we 	expand 	market 	share 	not 	only 	across 	Oklahoma 	but 	other 	states
as well. 	Let us know your availability tomorrow for a conference
call between Bill, myself and you.” 	(Pl. Exh No. 55).
16. 	Thurman 	stated 	that 	he 	believed 	Brewer 	had 	been 	informed 	of
the 	content 	of 	the 	e-mail 	including 	Harrison’s 	anticipated 	role
and 	the 	plan 	to 	use 	Brewer’s 	offices 	in 	Dallas 	from 	which 	to
operate 	Redbird. 	(Tr. 	105:25; 	106:1-17). 	Thurman 	testified 	that
he learned, however, in late January of 2020 that Harrison had not
communicated 	this 	information 	to 	Brewer. 	(Tr. 	106:18-25; 	107:1-
5).
17. 	For 	his 	part, 	Harrison 	told 	Redbird’s 	representatives,
including Thurman, that he would not tell Brewer or BAC about the
employment 	with 	Redbird 	until 	he 	had 	final 	signed 	agreements 	for
him 	to 	assume 	the 	CEO 	position 	because 	of 	the 	tenuous 	nature 	of
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Redbird’s 	business. 	(Tr. 	594:6-13; 	595:23-25,596:1-17; 	597:11-
13; 	598:24-25, 	599:1-17). 	It 	was 	not 	clear 	to 	Harrison 	that
Redbird would be in a financial position to hire a full time CEO.
(Tr. 	594:18-24). 	Harrison 	wanted 	to 	have 	agreements 	finalized
and 	“everything 	buttoned 	up” 	before 	resigning 	his 	position 	with
BAC. 	(Tr. 	596:5-15). 	He 	requested 	several 	provisions 	in 	the
Agreement 	to 	insure 	he 	was 	compensated 	in 	the 	event 	Redbird’s
business 	failed 	before 	he 	resigned 	his 	position 	with 	BAC. 	(Tr.
604:14-607:12). 	Thurman 	testified 	that 	Redbird 	was 	in 	a 	dire
financial 	position 	because 	traditional 	banking 	lending 	was 	not
available 	to 	businesses 	engaged 	in 	cannabis. 	(Tr. 	127:17-25,
128:1-11).
18. 	Discussions 	continued 	with 	Harrison 	into 	June 	of 	2019
concerning his assumption of a leadership role at Redbird, except
he proposed that he be named chief executive officer (“CEO”) rather
than 	COO. 	(Tr. 	108:17-21). 	Negotiations 	continued 	between
Harrison, 	Patel, 	and 	Joe 	Byars 	(“Byars”), 	general 	counsel 	for
Redbird 	concerning 	Harrison’s 	employment 	with 	Redbird. 	(Tr.
113:17-23).
19. 	Harrison 	introduced 	his 	father, 	Tom 	Harrison, 	to 	Thurman.
Thurman knew Tom Harrison had connections in the cannabis industry,
including 	with 	Merida 	Capital, 	a 	provider 	of 	capital 	to 	cannabis
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businesses. 	(Tr. 	116:7-22). 	Thurman 	spoke 	with 	Tom 	Harrison 	on
the telephone and they briefly touched upon Harrison becoming CEO
of 	Redbird. 	(Tr. 	116:23-25; 	117:1-2). 	They 	discussed 	Harrison
taking a leadership role with Redbird. (Tr. 117:3-22). 	They also
discussed Merida Capital’s potential investment in Redbird. 	(Tr.
117:23-25; 	118:1-13). 	Later, 	Thurman 	met 	with 	Harrison 	and 	Tom
Harrison for dinner and they discussed Harrison’s leadership role
with Redbird. 	Thurman and Patel had traveled to New York to meet
with Brewer and investment banks. 	Thurman testified Harrison told
him 	Brewer 	was 	unavailable 	and 	suggested 	this 	was 	an 	untruth,
unbeknownst to him at the time. 	(Tr. 133:2-135:16).
20. 	Among 	Merida’s 	portfolio 	companies 	was 	a 	digital 	marketing
and media firm known as MediaJel. 	Harrison urged Redbird to cancel
its contract with its current company Studio Flight in favor of a
contract 	with 	MediaJel. 	Redbird 	contracted 	with 	MediaJel 	and
cancelled 	its 	contract 	with 	Studio 	Flight. 	(Pl. 	Exh. 	No. 	158,
192, 	197). 	Redbird 	later 	cancelled 	the 	contract 	with 	MediaJel,
not due to the quality of their work but the poor value of their
work 	because 	they 	were 	such 	an 	expensive 	firm. 	(Weinstein 	Depo.
117:18-23).
21. 	In 	July 	of 	2019, 	Harrison 	requested 	that 	Redbird 	use 	his
personal g-mail address as opposed to his BAC firm e-mail address
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for any communication related to his potential employment as CEO.
(Def. 	Exh. 	No. 	11). 	He 	specifically 	e-mailed 	Thurman 	and 	Byars
from his personal e-mail account, stating “[p]lease just use this
e-mail 	address 	for 	anything 	involving 	redbird 	employment
agreements.” 	Id. 	Despite 	Thurman’s 	dismissal 	of 	his 	frequent
use 	of 	e-mails, 	he 	did 	in 	fact 	recognize 	Harrison’s 	personal 	g-
mail address and its use by the Board of Redbird. 	(Pl. Exh. No.
116; see e.g. Def. Exh. Nos. 51. 	Harrison testified that Thurman
switched the e-mail address which he used to communicate with him.
(Tr. 632:21-25). 	Thurman acknowledged the possibility he did so.
(Tr. 286:22-287:4).
22. 	On 	August 	9, 	2019, 	Harrison 	e-mailed 	Thurman 	regarding 	the
employment 	agreement 	that 	they 	were 	negotiating 	for 	Harrison 	to
become Redbird’s CEO. 	He wrote, “[c]an you sign on behalf of RB
then send/scan to me for signature? 	I might need to move my start
date back a few days so I can give Brewer the full 2 weeks notice
period. 	Does 	that 	work 	for 	you?” 	(Def. 	Exh. 	No. 	12). 	Thurman
responded 	stating, 	“No 	problem, 	I’ll 	get 	it 	done 	this 	evening.”
Id.
23. 	On 	August 	8, 	2019, 	Harrison 	spoke 	with 	Thurman 	and 	Patel 	by
phone about finalizing the employment agreement. 	(Tr. 599:5-17).
Harrison told Thurman and Patel, “I would like to get this done so
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that 	I 	can 	finally 	tell 	Brewer.” 	(Tr. 	599:7-10). 	Thurman
responded, “That’s good. 	I don’t want to operate in the shadows
much 	longer.” 	(Tr. 	599:11-12). 	Harrison 	understood 	this
statement 	to 	mean 	that 	they 	knew 	they 	were 	not 	bringing 	the
Harrison’s 	employment 	with 	Redbird 	to 	the 	attention 	of 	Brewer 	or
BAC 	until 	the 	documents 	were 	finalized. 	(Tr. 	599:13-17; 	600:1-
14).
24. 	On 	August 	9, 	2019, 	Harrison 	and 	Redbird 	finalized 	the
employment 	agreement 	but 	did 	not 	agree 	on 	the 	unit 	grant
agreements. 	(Pl. 	Exh. 	Nos. 	106, 	108). 	On 	August 	13, 	2019,
Harrison 	sent 	a 	text 	message 	to 	Thurman 	stating, 	“I 	sent 	over
revisions to 	the share grant agreement, as we discussed. 	Can we
get [Byars] to knock it out today? 	Brewer is finally back in the
office 	and 	I’d 	like 	to 	button 	everything 	up 	before 	I 	formally
resign. 	Start date is still 8/26, so that’s not moving.” 	(Def.
Exh. 	No. 	15). 	Harrison 	also 	e-mailed 	Byars 	about 	the 	status 	of
his 	unit 	grant 	agreements, 	stating, 	“I’d 	like 	to 	finalized 	this
last piece so I can formally resign.” 	(Def. Exh. No. 25).
25. 	In August of 2019, Redbird’s board was considering deferring
Harrison’s 	start 	date 	and 	was 	reviewing 	the 	unit 	agreements.
During 	the 	call 	with 	Harrison, 	board 	member 	Michael 	Butler 	asked
Harrison if he had told Brewer that he was leaving to join Redbird,
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and 	Harrison 	told them he had not told them. 	Harrison testified
Butler 	stated, 	“Good, 	because 	if 	we 	end 	up 	postponing 	your 	start
date, you won’t be out of a job.” 	(Tr. 600:25-601:4).
26. 	Harrison 	also 	testified 	that 	when 	Redbird’s 	financial
statements 	were 	being 	circulated, 	the 	drafts 	included 	Harrison’s
position 	as 	CEO 	and 	his 	compensation. 	When 	asked 	whether 	the
statements should be sent to Harrison’s BAC e-mail address, Thurman
responded, 	“Good 	God, 	no. 	That’s 	got 	his 	information 	in 	there.
Send it to his g-mail.” 	(Tr. 601:17-19).
27. 	Harrison 	repeatedly 	reminded 	Byars 	to 	send 	communications
related 	to 	his 	employment 	agreement 	and 	unit 	grant 	agreements 	to
his g-mail address. 	(Tr. Def. Exh. Nos. 27, 28, 173; Tr. 597:15-
598:23).
28. 	In 	January 	of 	2020, 	Harrison 	also 	expressed 	concern 	Thurman
would 	refer 	to 	him 	as 	a 	“will 	be 	CEO” 	in 	front 	of 	investment
bankers from Dallas meeting Harrison and Thurman at a facility in
Stillwell, 	Oklahoma. 	He 	asked 	Thurman 	to 	refrain 	from 	the
reference stating, “Please don’t make any comment about me becoming
the 	CEO. 	I 	know 	these 	bankers 	are 	from 	Dallas. 	They 	may 	know
Bill Brewer. 	I just don’t want any issue with that.” 	(Tr. 602:22-
25). 	Thurman 	responded, 	“I 	got 	it. 	Nothing 	to 	worry 	about.”
(Tr. 602:1-2).
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29. 	In communications with Redbird’s new Chief Operating Officer,
Stacy 	Wright 	(“Wright”), 	Harrison 	testified 	that 	he 	informed
Wright 	that 	he 	was 	not 	telling 	anyone 	at 	the 	Brewer 	firm 	he 	was
leaving 	until 	the 	agreements 	were 	finalized. 	(Tr. 	603:9-23).
Wright 	acknowledged 	that 	he 	had 	done 	the 	same 	with 	his 	employer.
(Tr. 603:20-23). 	In a text message, Wright stated, “How are things
going 	on 	your 	exit? 	Stealth 	mode?” 	to 	which 	Harrison 	responded,
“I gave my resignation notice on Thursday.” 	Wright responded, “Oh
s***. 	How did Bill take it? 	Brewer.” 	Harrison stated, “A little
surprised, but overall seemed happy for the opportunity.”
30. 	A 	formal 	employment 	agreement 	for 	Harrison 	to 	become 	CEO 	of
Redbird dated January 15, 2020 was signed by all parties, including
Harrison 	and 	Patel 	and 	Thurman 	for 	Redbird 	Bioscience 	Oklahoma,
LLC, 	Redbird 	Business 	Group, 	LLC, 	RB 	Realty 	Co, 	LLC 	and 	Redbird
Ventures, LLC. 	(the “Agreement”) (Pl. Exh. No. 1). 	The Agreement
provides that Redbird Bioscience Oklahoma, LLC “desires to employ
[Harrison] 	as 	Chief 	Executive 	Officer, 	and 	[Harrison] 	desires 	to
accept such employment” with a start date of February 3, 2020 and
a 	term 	of 	three 	years 	to 	February 	3, 	2023. 	By 	its 	terms, 	the
Agreement is governed by the laws of the State of New York.
31. 	The Agreement provides the following:
Superseding 	Agreement. 	This 	Agreement
constitutes 	the 	entire 	agreement 	between 	the
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parties 	and 	contains 	all 	the 	agreements
between 	them 	with 	respect 	to 	the 	subject
matter hereof. 	It also supersedes any and all
other agreements or contracts, either oral or
written, 	between 	the 	parties 	with 	respect 	to
the subject matter hereof.
(Pl. Exh. No. 1, ¶15).
32. 	The 	Agreement 	also 	contains 	a 	warranty 	clause, 	which
provides:
12. 	Representation 	and 	Warranty. 	Executive
represents and warrants that he is not a party
to 	any 	non-compete, 	restrictive 	covenant 	or
related 	contractual 	limitation 	that 	would
interfere 	with 	or 	hinder 	his 	ability 	to
undertake the obligations and expectations of
employment with the Company.
(Pl. Exh. No. 1, ¶12).
33. 	The 	Agreement 	sets 	out 	that 	RB 	RealtyCo 	would 	act 	as 	a
guarantor 	for 	the 	payments 	required 	under 	the 	Agreement.
Specifically, the Agreement provides:
(b) 	Absolute 	and 	Unconditional 	Guarantee 	of
Payments 	to 	Executive. 	RB 	RealtyCo 	LLC
(“Guarantor”) 	hereby 	absolutely 	and
unconditionally 	guarantees 	all 	payments 	to
Executive 	required 	by 	this 	Agreement, 	and
Guarantor will be directly liable to Executive
for all such payments. 	Guarantor agrees that
(a) 	this 	guarantee 	is 	absolute 	and
unconditional 	under 	New 	York 	law, 	(b) 	this
guarantee 	is 	enforceable 	despite 	any 	other
circumstance which might otherwise constitute
a defense, and (c) Guarantor is not relying on
any representations in making this guarantee.
(Pl. Exh. No. 1, ¶6(b)).
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34. 	Harrison also entered into a Restricted Unit Grant Agreements
(“RUGA”) 	with 	Redbird 	Bioscience 	Oklahoma, 	LLC 	(Pl. 	Exh. 	No. 	2);
Redbird Business Group, LLC (Pl. Exh. No. 3); and RB RealtyCo, LLC
(Pl. Exh. No. 4). 	The RUGAs provided for the granting of varying
numbers of Profit Units to Harrison in each entity, estimating the
fair market value of each grant. 	Id.
35. 	Each 	RUGA 	contains 	an 	“Entire 	Agreement” 	clause 	which
provides:
This 	Agreement, 	including 	any 	Exhibits 	and
Schedules 	attached 	hereto, 	together 	with 	any
agreements 	referred 	to 	herein 	and 	any
consulting, 	employment, 	confidentiality
and/or 	restrictive 	covenant 	agreement(s)
entered 	into 	between 	the 	Grantee 	and 	the
Company 	or 	any 	Affiliate 	of 	the 	Company,
contain the entire agreement among the parties
hereto 	with 	respect 	to 	the 	Company 	and
supersede 	all 	prior 	agreements, 	covenants,
arrangements, 	letters, 	communications,
representations or warranties, whether oral or
written, 	by 	any 	party 	hereto 	with 	respect 	to
the Company or its business. No party shall be
bound 	by 	any 	condition, 	definition, 	warranty
or 	representation, 	unless 	and 	only 	to 	the
extent (i) expressly set forth or provided for
in 	this 	Agreement 	or 	in 	any 	other 	agreement
entered 	into 	by 	a 	party 	on 	or 	subsequent 	to
the 	date 	hereof, 	set 	forth 	in 	writing 	and
signed 	by 	the 	party 	to 	be 	bound 	thereby, 	or
(ii) 	this 	Agreement 	(including 	the 	Exhibits
and 	Schedules 	hereto), 	or 	such 	other
agreements, 	are 	amended 	pursuant 	to 	their
terms. 	This 	Agreement 	expressly 	supersedes
and 	bars 	extra 	contractual 	statements 	and
promises of any kind.
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(Pl. Exh. No. 2, 3 and 4 § 7.7).
36. 	The Agreement and the RUGAs were finalized fully executed on
January 	22, 	2020 	with 	Redbird’s 	board 	approving 	the 	same. 	(Tr.
561:18-562:10). 	Thurman 	testified 	that 	he 	never 	read 	any 	of 	the
agreements. 	(Tr. 129:21-23). 	When asked why he did not instruct
Byars 	to 	include 	a 	provision 	in 	the 	agreements 	for 	Brewer 	to 	be
informed of Harrison’s employment, Thurman stated,
I 	don't 	-- 	I 	didn't 	even 	interact. 	Why 	would
I care? I assumed it was already a known fact.
Why 	-- 	that 	would 	have 	been 	presumed 	that 	I
questioned or doubted Mr. Brewer's appointment
of 	Mr. 	Harrison 	and 	the 	whole 	construct 	that
we 	existed 	in. 	I 	did 	not 	doubt 	it 	or 	be 	--
or 	it 	-- 	was 	not 	concerned 	with 	it 	at 	all. 	I
had 	-- 	honestly, 	when 	I 	look 	back 	at 	some 	of
this 	stuff, 	and 	I 	see 	where 	the 	-- 	our 	board
members 	and 	Michael 	Butler 	-- 	this 	was
distributed to relatively small figures within
our 	company. 	Michael 	Butler 	played 	a 	small
advisory role to the board. I don't -- I don't
look at who all's on these email threads. I'm
busy. 	I 	assumed 	Brewer 	was 	on 	there 	or 	in 	--
somewhere 	through 	Matt 	Harrison 	-- 	that 	Bill
Brewer would certainly have line of sight when
all 	of 	-- 	when 	Joe 	is 	calling 	Nimesh 	and 	Dr.
Hird 	and 	all 	the 	board 	members 	together 	to
review this, that -- that certainly would rise
to 	the 	occasion 	that 	Bill 	Brewer 	would 	have
specific exposure to that.
(Tr. 121:18-122:10).
37. 	At 	all 	times 	relevant 	to 	the 	facts 	of 	this 	action, 	Thurman
and Byars were able to contact Brewer about their intent to engage
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Harrison 	as 	the 	CEO 	of 	Redbird. 	(Tr. 	60:10-14; 	61:19-63:18;
427:14-428:18). 	Thurman 	stated 	that, 	in 	hindsight, 	he 	“should
have” 	called 	Brewer 	about 	the 	employment 	of 	Harrison 	by 	Redbird,
but “it really wasn’t front and center for me.” 	(Tr. 281:14-23).
Byars could have contacted Brewer to determine if he was aware of
Harrison’s 	employment 	with 	Redbird. 	(Tr. 	555:19-556:10). 	He
speaks directly with Brewer every two months about Redbird without
using any “conduit.” 	(Tr. 550:1-16; 555:19-556:10).
38. 	On 	January 	23, 	2020, 	Harrison 	met 	with 	Brewer 	in 	person 	at
BAC’s office in New York to resign from his position from the firm.
(Tr. 	607:13-16). 	In 	the 	meeting, 	Harrison 	told 	Brewer 	about 	the
CEO 	position 	at Redbird. 	(Tr. 	607:17-19). 	In response, Brewer
said 	that 	is 	sounded 	like 	a 	good 	opportunity, 	giving 	credit 	to
Thurman for spotting the opportunity, telling Harrison, “We’ve had
a really good run.” 	(Tr. 608:6-12).
39. 	Harrison 	texted 	Thurman 	to 	tell 	him 	he 	spoke 	with 	Brewer.
(Tr. 608:13-25). 	Harrison wrote, “I just spoke with brewer. 	He’s
happy for me and the opportunity. 	He gave you credit for spotting
the 	opportunity 	and 	sticking 	with 	it 	because 	it 	sounds 	like 	it’s
at 	a 	really 	great 	place 	and 	ready 	to 	take 	off.” 	Id.; 	Def. 	Exh.
No. 18). 	Thurman and Harrison spoke soon thereafter, with Thurman
expressing 	that 	he 	was 	relieved 	that 	Brewer 	was 	happy 	with
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Harrison’s opportunity with Redbird. 	(Tr. 151:18-19).
40. 	On 	January 	24, 	2020, 	Brewer 	tried 	to 	call 	Thurman 	but 	spoke
with 	Byars. 	Byars 	texted 	Thurman 	and 	stated 	that 	he 	received 	a
call from Brewer who “wants to know what’s going on.” 	(Pl. Exh.
No. 	193). 	He 	texted 	that 	“it 	appears 	Matt 	had 	not 	spoken 	with
him, 	and 	he 	indicated 	that 	he 	would 	have 	wanted 	a 	call 	from 	you
about 	a 	job 	offer 	to 	Matt.” 	Id. 	Thurman 	responded 	with 	an
indecipherable expletive laden expression of displeasure. 	Id.
41. 	On 	January 	27, 	2020, 	Harrison 	spoke 	with 	Byars 	and 	Thurman.
Byars told Harrision “that he had received a call from Bill Brewer
on Friday, that Bill Brewer was upset that I was joining Redbird,
and that he was trying to get in touch with Bill Thurman so that
he 	could 	stop 	it 	from 	happening.” 	(Tr. 	617:4-9). 	Thurman 	told
Harrison 	“that 	he 	had 	just 	spoken 	with 	Bill 	Brewer, 	that 	Bill
Brewer 	wanted 	to 	hit 	the 	pause 	button 	on 	me 	joining 	Redbird.”
(Tr. 617:10-14).
42. 	On 	January 	28, 	2020, 	Brewer 	told 	Thurman 	that 	he 	wanted 	to
meet 	with 	him 	in 	New 	York. 	Thurman 	called 	Patel, 	told 	him 	to
cancel 	his 	clinic, 	and 	that 	they 	had 	an 	emergency 	to 	meet 	with
Brewer in New York. 	(Tr. 400:6-24).
43. 	On 	January 	29, 	2020, 	Thurman 	and 	Patel 	met 	with 	Brewer 	in
Brewer’s offices. 	Harrison was surprised to see them and greeted
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them 	in 	a 	conference 	room. 	Brewer 	ordered 	Harrison 	out 	of 	the
room. 	(Tr. 618:8-13).
44. 	Thurman and Patel met with Brewer. 	Brewer told them he was
shocked that 	they offered Harrison a job and he was not informed
of it. 	(Tr. 403:18-21). 	He also stated that Harrison’s contracts
were not theirs to deal with. 	(Tr. 243:7-12). 	Brewer told them
he would deal with Harrison and determine what was to be done next.
(Tr. 243:13-15).
45. 	After the meeting with Brewer, Thurman and Patel met Harrison
on 	the 	sidewalk 	down 	the 	street 	from 	Brewer’s 	office. 	(PreTrial
Order 	Fact 	No. 	45). 	Harrison 	recorded 	the 	conversation. 	(Def.
Exh. No. 20). 	Thurman told Harrison about the meeting with Brewer
and 	that 	he 	was 	upset 	that 	they 	did 	not 	tell 	him 	about 	the 	CEO
position 	earlier. 	Id. 	Thurman 	said 	he 	tried 	to 	give 	Brewer
“context” for why they did not tell Brewer about the CEO position
earlier. 	He 	explained 	to 	Brewer 	that 	“this 	thing 	was 	hour-by-
hour” and it was only in the last six weeks that they started to
see the “light at the end of the tunnel.” 	Id.
46. 	Thurman 	told 	Brewer 	that 	“Matt 	has 	been 	very 	effective 	and
been wonderful to work with,” ”the higher level side of this with
the public relations to grow the branding . . . intellectual side
of 	it 	. 	. 	. 	has 	been 	cultivated 	very, 	very 	thoughtfully 	and
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nicely, 	“ 	and 	“we 	are 	in 	a 	positions 	to 	take 	full 	advantage 	of
it.” 	Id. 	Thurman 	also 	stated, 	“we’re 	happy 	working 	with 	you,
that 	you’ve 	done 	great 	work, 	that 	this 	public 	relations, 	all 	of
the 	panache and national branding design that we need to lift up
out of the clouds, that you are exceptional at it. 	And we’ve had
nothing but good time working 	together.” 	Id. 	Patel stated that
they 	told 	Brewer, 	“Matt’s 	been 	great 	working 	with 	and 	we 	realize
what he’s done for us.” 	Id.
47. 	Thurman 	encouraged 	Harrison 	to 	“mend 	fences” 	with 	Brewer.
Thurman hoped they could move forward with Harrison as CEO or some
other working arrangement with “possibly to things working out for
everybody.” 	(Tr. 241:5-8). 	Thurman stated that he would keep the
conversation between the three of them. 	(Def. Exh. No. 20).
48. 	On 	January 	30, 	2020, 	Byers 	e-mailed 	Harrison 	a 	letter
entitled, 	“Rescission/Withdrawal 	of 	Employment 	Agreement 	and
Restricted 	Unit 	Agreements.” 	(PreTrial 	Order 	Fact 	No. 	46). 	The
letter 	stated, 	“Given 	the 	circumstances 	which 	have 	come 	to 	light
over the past few days, the management team has determined that it
is not in the best interests of Redbird to proceed with plans for
your 	prospective 	employment.” 	(PreTrial 	Order 	Fact 	No. 	47).
Redbird did not seek board approval from its board before sending
this 	letter 	to 	Harrison. 	(Bintliff 	Depo. 	58:5-9). 	Harrison
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responded to the letter the next day through counsel, rejected the
attempted 	recission, 	and 	asked 	Redbird 	to 	provide 	the 	basis 	for
the recission. 	(Def. Exh. No. 31). 	On February 5, 2020, Redbird
responded 	that 	the 	agreements 	were 	obtained 	through 	“fraudulent
and dishonest conduct” without identifying the basis for the fraud
allegation. 	(Def. Exh. No. 32).
49. 	On 	February 	12, 	2020, 	Redbird 	filed 	this 	action 	for
declaratory judgment in the District Court in and for Adair County,
Oklahoma. 	The action was removed to this Court on April 2, 2020.
Redbird 	asserts 	claims 	for 	(1) 	a 	declaratory 	judgment 	that 	the
Agreement 	and 	RUGAs 	were 	procured 	by 	Harrison’s 	fraud 	and 	are,
therefore, null and void; (2) a declaratory judgment the Agreement
and 	RUGAs 	were 	properly 	rescinded 	because 	Harrison 	breached 	the
warranty 	contained 	in 	the 	agreements 	that 	he 	was 	not 	under 	a
contractual 	limitation 	which 	would 	prevent 	his 	employment 	with
Redbird; 	and 	(3) 	unspecified 	damages. 	(Third 	Amended 	Complaint
filed September 11, 2020 (Docket Entry #27)).
50. 	Harrison 	answered 	and 	asserted 	counterclaims 	for 	(1)
breach of contract; (2) breach of good faith and fair dealing; (3)
promissory 	estoppel; 	and 	(4) 	breach 	of 	guaranty. 	(Amended
Counterclaim filed September 25, 2020 (Docket Entry #29)).
CONCLUSIONS OF LAW
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A. 	Redbird Bioscience Oklahoma, LLC is an Oklahoma Limited
Liability Company organized under the laws of the State of Oklahoma
with its principal place of business is in Adair County, Oklahoma.
It 	employs 	the 	managers 	of 	Redbird’s 	business. 	RB 	RealtyCo, 	LLC
is an Oklahoma Limited Liability Company organized under the laws
of the State of Oklahoma, and its principal place of business is
in 	Adair 	County, 	Oklahoma. 	Redbird 	Business 	Group 	LLC 	is 	a
Delaware 	Limited 	Liability 	Company 	that 	is 	authorized 	to 	do
business 	within 	the 	State 	of 	Oklahoma. 	At 	the 	time 	this 	action
was 	filed, 	Matthew 	Harrison 	was 	a 	resident 	of 	the 	State 	of 	New
York. 	Complete 	diversity 	of 	citizenship 	exists 	between 	the
parties. 	The 	amount 	in 	controversy 	is 	in 	excess 	of 	$75,000.00
exclusive of interest and costs.
B. 	The 	parties 	indicated 	in 	the 	Joint 	Status 	Report 	filed
August 28, 2020 (Docket Entry #22) that they did not seek a jury
trial of the disputed issues in this case. 	Plaintiff reserved the
right 	to 	request 	a 	jury 	trial 	in 	the 	same 	Report 	but 	never
exercised that reservation.
C. 	The 	parties 	filed 	signed 	consent 	forms 	indicating 	that
they consented to the jurisdiction of the undersigned United States
Magistrate 	Judge 	to 	preside 	over 	this 	case 	to 	final 	judgment,
including 	the 	non-jury 	bench 	trial 	of 	the 	case. 	28 	U.S.C. 	§
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636(c)(1). 	United 	States 	District 	Judge 	Ronald 	A. 	White 	to 	whom
this 	case 	was 	assigned 	when 	the 	consents 	were 	submitted 	to 	the
Clerk 	of 	the 	Court 	executed 	and 	entered 	an 	Order 	of 	Consent 	to
Proceed 	Before 	a 	Magistrate 	Judge 	on 	June 	14, 	2022 	(Docket 	Entry
#137), 	reassigning 	the 	case 	to 	the 	undersigned. 	This 	Court
possesses 	the 	appropriate 	jurisdiction 	over 	the 	parties 	and
subject 	matter 	of 	this 	action, 	which 	is 	based 	in 	diversity
jurisdiction. 	18 	U.S.C. 	§ 	1332(a)(1). 	Further, 	venue 	is 	proper
in this District. 	28 U.S.C. § 1391(b).
D. 	Any finding of fact which is more appropriately described
as 	a 	conclusion 	of 	law 	shall 	stand 	as 	such. 	Similarly, 	any
conclusion of law which might 	be considered as 	a finding of fact
will be so deemed.
E. 	Under New York law which governs the agreements at issue
in 	this 	case, 	Redbird 	which 	asserts 	a 	fraud 	in 	the 	inducement
claim 2 must prove that (1) Harrison made a misrepresentation or a
material 	omission 	of 	fact; 	(2) 	which 	was 	false 	and 	known 	to 	be
false by Harrison; (3) which was made for the purpose of inducing
Redbird 	to 	rely 	upon 	it; 	(4) 	justifiable 	reliance 	of 	Redbird 	on
the misrepresentation or material omission; and (5) injury. 	Hogan
2 While the relief sought by Redbird is one for a declaratory judgment, it must
prove 	the 	elements 	of 	the 	underlying 	claims 	which 	allegedly 	justifies 	the
declaration.
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Willig, 	PLLC 	v. 	Kahn, 	44 	N.Y.S.3d 	321, 	323–24 	(App. 	Div. 	2016)
quoting Pasternack v. Laboratory Corp. of Am. Holdings, 27 N.Y.3d
817, 	827 	(Ct. 	App. 	2016), 	rearg. 	denied 	28 	N.Y.3d 	956. 	“In
addition 	to 	the 	elements 	for 	fraudulent 	inducement, 	a 	cause 	of
action for fraudulent concealment also requires a duty on the part
of the defendant to disclose material information and the failure
to 	do 	so.” 	Id. 	citing 	Mandarin 	Trading 	Ltd. 	v. 	Wildenstein, 	16
N.Y.3d 173, 178 (Ct. App. 2011).
Redbird 	bears 	the 	burden 	of 	proving 	each 	of 	the 	elements 	of
its fraud in the inducement claim by clear and convincing evidence.
Hidden Pond Schodack, LLC v. Hidden Pond Homes, Inc., 138 N.Y.S.3d
215, 	219 	(App. 	Div. 	2020). 	“The 	clear 	and 	convincing 	evidence
standard requires the party bearing the burden of proof to ‘adduce
evidence that makes it highly probable that what he or she claims
is what actually happened.’” Currie v. McTague, 921 N.Y.S.2d 364,
366 (App. Div. 2011) quoting Krol v. Eckman, 681 N.Y.S.2d 885 (App.
Div. 1998).
F. 	Upon a thorough review of the evidence and the reasonable
inferences drawn therefrom, this Court concludes that Redbird did
not meet this high burden of proving its fraud claim. 	It is not
clear 	that 	Harrison 	misrepresented 	to 	Redbird, 	generally, 	and
Thurman, 	Patel, 	and 	Byars, 	specifically, 	that 	he 	would 	advise
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Brewer of his negotiations, potential employment with Redbird, or
realized 	employment 	with 	Redbird. 	The 	mix 	of 	communications
indicating 	that 	Thurman, 	in 	particular, 	as 	well 	as 	Byars 	during
the employment contract negotiations with Harrison as reflected in
the Findings of Fact above knew or certainly had strong indications
that 	Harrison 	was 	not 	informing 	Brewer 	of 	his 	employment
opportunity 	with 	Redbird. 	Thurman, 	Patel, 	and 	Byars 	testimony
that 	keeping 	Brewer 	advised 	was 	a 	precursor 	or 	a 	condition 	of
Harrison’s 	employment 	represents 	an 	attempt 	to 	remedy 	an 	after-
the-fact 	realization 	brought 	about 	by 	Brewer’s 	unexpected 	and
surprising 	adverse 	reaction 	to 	Harrison’s 	employment 	by 	Redbird
after 	Harrison’s 	resignation. 	Several 	facts 	stand 	out 	to 	this
Court as persuasive on this issue – (1) 	if prior notification of
Redbird’s 	offer 	to 	Harrison 	was 	such 	an 	essential 	term, 	it
confounds reason that the term would not have been expressly stated
in either the Agreement or a prior writing, signed by all parties.
Redbird’s 	insistence 	otherwise 	is 	expressly 	rejected.; 	(2) 	if
prior 	notification 	was 	a 	condition 	precedent 	to 	Harrison’s
employment, 	the 	close 	relationship 	and 	communications 	between
Thurman 	or 	Byars 	with 	Brewer 	would 	have 	surely 	caused 	the 	matter
to 	be 	raised 	during 	the 	months 	of 	negotiations 	for 	Harrison’s
employment; 	(3) 	none 	of 	the 	numerous 	communications 	between
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Harrison 	and 	one 	of 	the 	principals 	for 	Redbird 	expressly 	told
Harrison 	that 	Brewer 	must 	be 	informed 	before 	any 	contract 	can 	be
negotiated 	and 	signed; 	and 	(5) 	Harrison’s 	position 	that 	he 	could
not 	leave 	his 	job 	at 	BAC 	without 	having 	the 	documents 	finalized
for his employment with Redbird and, therefore, he could not inform
Brewer of his intent to resign is credible on its face. 	No intent
to 	defraud 	Redbird 	can 	be 	ascertained 	with 	clear 	and 	convincing
evidence 	from 	this 	position. 	While 	Redbird 	insists 	that 	the
requirement 	for 	Brewer’s 	“blessing” 	did 	not 	need 	to 	be 	expressly
put 	in a document or discussed further by the 	parties because it
was a known fact, it is apparent from the dispute represented here
and 	the 	evidence 	presented 	at 	trial 	that 	this 	was 	not 	the 	case.
“Vague and indefinite” statements cannot form the basis of a fraud
claim. 	Van Kleeck v. Hammond, 811 N.Y.S.2d 452, 454-55 (App. Div.
2006).
G. 	A duty to speak can arise when a fiduciary relationship
exists between the parties or when one party has superior knowledge
over the other. 	Redbird contends that Harrison owed it a duty to
disclose 	that 	he 	had 	not 	informed 	Brewer 	of 	the 	employment
negotiations with it. 	“A fiduciary relationship only arises when
one has reposed trust and confidence in the integrity and fidelity
of 	another 	who 	thereby 	gains 	influence 	or 	assumes 	control 	and
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responsibility.” 	Laikin 	v. 	Vaid, 	2001 	WL 	1682873, 	at 	*2 	(N.Y.
Sup. 	Ct. 	Oct. 	10, 	2001) 	citing 	Board 	of 	Managers 	of 	Fairways 	at
North 	Hills 	Condominium 	v. 	Fairway 	at 	North 	Hills, 	603 	N.Y.S.2d
867 	(Sup. 	Ct. 	1993). 	Harrison 	was 	an 	employee 	of 	BAC 	providing
consulting 	services 	for 	Redbird. 	While 	Thurman 	and 	others 	at
Redbird 	appeared 	to 	consider 	Harrison 	quite 	capable 	and
intelligent, nothing but a typical services type agreement between
BAC and Redbird existed. 	Harrison was merely a contractor working
with 	Redbird. 	The 	employment 	relationship 	between 	Harrison 	and
Redbird 	was 	the 	very 	subject 	matter 	of 	this 	dispute 	and 	the
approval 	of 	someone 	outside 	of 	that 	relationship 	was 	allegedly
required 	by 	Redbird 	before 	Harrison 	could 	act 	on 	the 	employment
opportunity. 	Such 	a 	relationship 	cannot 	be 	characterized 	as
fiduciary.
H. 	A 	duty 	can 	also 	arise 	when 	one 	party 	has 	superior
knowledge than the other, not readily available to the other, which
creates 	disparate 	bargaining 	power 	because 	one 	is 	acting 	on 	the
basis 	of 	mistaken 	knowledge. 	Aaron 	Ferer 	& 	Sons 	Ltd. 	v. 	Chase
Manhattan 	Bank, 	Nat. 	Ass’n, 	731 	F.2d 	112, 	123 	(2d 	Cir. 	1984).
Such is not the case here. 	Redbird and its principals could have
readily 	informed 	Brewer 	of 	the 	negotiations 	with 	Harrison 	at 	any
time. 	They were on an equal knowledge footing with Harrison. 	No
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duty arose from any superior knowledge.
For 	similar 	reasons, 	the 	remaining 	elements 	for 	fraud 	have
not been proved. 	Harrison did not make any false statement for
the 	purpose of inducing Redbird to rely upon it. 	Any 	ostensible
reliance upon Harrison having informed Brewer was not justifiable
because 	it 	was 	readily 	verifiable 	with 	Brewer. 	Moreover,
Redbird’s 	position 	that 	an 	agency 	relationship 	existed 	between
Harrison 	and 	BAC 	upon 	which 	it 	could 	rely 	to 	believe 	Brewer 	had
been 	informed 	is 	nonsensical 	having 	previously 	argued 	that 	a
fiduciary 	relationship 	existed 	between 	Harrison 	and 	Redbird. 	AS
an alternative theory, the agency allegation also fails as Redbird
had a duty to determine if Harrison was actually acting on behalf
of BAC in the transaction with him. 	Hefferman v. Marine Midland
Bank, 701 N.Y.S.2d 4, 5-6 (App. Div. 1999). 	Redbird failed to do
so.
Having 	failed 	to 	prove 	the 	required 	elements 	under 	the
heightened 	standard 	of 	clear 	and 	convincing 	evidence, 	Redbird’s
fraud claim, and its associated request for declaratory judgment,
fails.3
I. 	Redbird 	also 	asserts 	a 	claim 	for 	breach 	of 	warranty 	which
3 To the extent Redbird also alleges Harrison committed fraud in the transaction
involving Merida Capital and MediaJel, the contention is specifically rejected
as having no support in the facts, relying upon supposition and speculation as
to the parties’ motivations.
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relates to Paragraph 12 of the Agreement. 	This claim has no merit.
Harrison was an employee at will with BAC with no contract and was
not subject to any of the referenced non-compete type restrictions.
Any 	attempt 	to 	impose 	a 	duty 	of 	disclosure 	of 	Harrison’s
exploration 	of 	Redbird’s 	employment 	through 	the 	“related
contractual 	limitation” 	language 	in 	paragraph 	12 	is 	unavailing.
Indeed, 	this 	is 	part 	of 	the 	problem 	with 	the 	foundation 	of
Redbird’s 	claim 	– 	the 	contract 	between 	Harrison 	and 	Redbird 	did
not contain any requirement of disclosure to Brewer. 	As a result,
this 	Court 	finds 	that 	the 	restrictions 	contained 	in 	paragraph 	12
have no application to the allegations in this case.
J. 	Redbird also clings to New York common law for a duty of
loyalty 	that 	Harrison 	owed 	BAC 	or 	Brewer. 	If 	such 	a 	duty 	did
exist, 	it 	is 	questionable 	whether 	Redbird 	has 	the 	requisite
standing to assert it. 	But, even if it was able to enforce this
duty, New York law would not have precluded Harrison from exploring
employment 	with 	Redbird. 	See 	Abraham 	Zion 	Corp. 	v. 	Lebow, 	593
F.Supp. 	551, 	571 	(S.D.N.Y. 	1984). 	Redbird’s 	breach 	of 	warranty
and associate request for declaratory judgment fails.
K. 	This 	Court 	now 	turns 	to 	Harrison’s 	counterclaims. 	In
order 	to 	prevail 	on 	his 	claim 	for 	breach 	of 	contract, 	Harrison
must 	demonstrate 	by 	a 	preponderance 	of 	the 	evidence 	that 	(1) 	a
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contract 	exists; 	(2) 	Harrison 	performed 	in 	accordance 	with 	the
contract; 	(3) 	Redbird 	breached 	its 	contractual 	obligations. 	34-
06 73, LLC v. Seneca Ins. Co., 39 N.Y.3d 44, 52 (Ct. App. 2022).
In this case, the Agreement, including RB RealtyCo’s guaranty, and
RUGAs were signed by all parties. 	Harrison resigned his position
with 	BAC 	and 	was 	ready, 	willing, 	and 	able 	to 	begin 	work 	as
Redbird’s CEO. 	Redbird, in turn, breached the Agreement and RUGAs
by 	rescinding 	the 	agreements 	and 	declining 	to 	allow 	Harrison 	to
take 	office 	on 	January 	30, 	2020. 	Harrison 	rejected 	the 	attempt
to 	rescind 	and 	stated 	that 	he 	intended 	to 	take 	over 	as 	CEO 	by
letter 	dated 	January 	31, 	2020. 	On 	February 	5, 	2020, 	Redbird
confirmed 	that 	it 	would 	rescind 	the 	agreements 	and 	Harrison 	did
not have employment. 	Clearly, Redbird breached the Agreement and
the RUGAs.
L. 	RB 	RealtyCo 	failed 	to 	“absolutely 	and 	unconditionally”
pay 	the 	amounts 	due 	Harrison 	upon 	Redbird’s 	breach 	of 	the
Agreement. 	Consequently, 	RB 	RealtyCo 	breached 	the 	guarantee
portion of the Agreement.
M. 	Harrison’s 	damages 	for 	breach 	of 	an 	employment 	contract
under New York law “are measured, 	prima facie, 	by the wages that
would 	have 	been 	paid 	during 	the 	remainder 	of 	the 	contract 	term.”
Rebh 	v. 	Lake 	George 	Ventures 	Inc., 	660 	N.Y.S.2d 	901, 	902 	(App.
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Div. 	1997). 	Harrison 	contends 	that 	he 	is 	due 	the 	salary 	and
severance 	he 	would 	have 	received 	if 	Redbird 	had 	terminated 	the
agreement without cause on sixty days’ notice on Harrison’s start
date. 	(Pl. Exh. No. 1, § 8(a)(i)). 	This position is reasonable
and 	supported 	by 	the 	Agreement 	between 	the 	parties. 	Harrison
would 	be 	due 	$375,000.00 	(severance 	of 	one 	year’s 	salary) 	and
$62,500.00 (two months’ salary for compensation during the sixty-
day notice period for termination).
N. 	RB 	RealtyCo 	is 	also 	liable 	for 	this 	amount 	representing
the payments due under the Agreement pursuant to the guarantee it
provided to Harrison. 	This is not to say that Harrison may recover
the amount awarded in the Judgment from Redbird and the same amount
again 	through 	the 	guarantee 	from 	RB 	RealtyCo. 	Harrison 	is
entitled to a single recovery.
O. 	The damages for the breach of the RUGAs pose a different
problem. 	The 	parties 	have 	vastly 	different 	views 	on 	the 	value
of these agreements. 	Harrison seeks specific performance to take
possession 	of 	the 	vested 	units 	granted 	to 	him 	under 	the 	RUGAs.
Harrison 	proposes 	that 	he 	be 	awarded 	the 	units 	he 	would 	have
received 	within 	the 	first 	two 	months 	of 	his 	employment 	presuming
the 	sixty-day 	notice 	period 	for 	termination 	was 	exercised. 	This
would result in an award of 50% immediately on the Grant Date of
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February 	2, 	2020 	and 	2.77% 	for 	each 	of 	the 	two 	months 	he 	would
have been employed before the sixty-day notice of termination was
exercised for a total of 55.56% of each grant.
Specific performance of uncertainly valued stock options has
been utilized for awarding employee benefits. 	See e.g. TaChotani
v. 	Doubleclick, 	Inc., 	714 	N.Y.S.2d 	34,35 	(App. 	Div. 	2000).
Obviously, 	the 	RUGAs 	were 	essential 	to 	Harrison’s 	decision 	to
resign from BAC since the employment arrangement with Redbird could
not 	become 	effective 	until 	both 	the 	Agreement 	and 	the 	RUGAs 	were
executed. 	As 	a 	result, 	Harrison’s 	request 	for 	specific
performance 	of 	the 	RUGAs 	is 	well-taken. 	Harrison’s 	proposal 	for
the 	award 	of 	the 	RUGAs 	will 	be 	granted 	and 	the 	units 	will 	be
granted in the percentages outlined. 4
P. 	Harrison 	includes 	a 	request 	for 	attorney’s 	fees 	in 	his
relief 	sought. 	Any 	claim 	by 	Harrison 	to 	an 	entitlement 	to
reimbursement 	for 	attorney’s 	fees 	shall 	be 	addressed 	by 	separate
motion.
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that judgment
4 Harrison states in his Proposed Findings of Fact and Conclusions of Law that
the additional claims for breach of the covenant of good faith and fair dealing
and promissory estoppel need not be addressed, if he prevails on the breach of
contract 	claim. 	Since 	the 	damages 	for 	such 	additional 	claims 	would 	be
duplicative of the damages awarded under the breach of contract claim, this
Court finds it redundant to address those additional avenues for relief and
will not do so further.
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is entered in favor of the Defendant, Matthew Harrison, and against
the 	Plaintiffs, 	Redbird 	Business 	Group, 	LLC, 	Redbird 	Bioscience
Oklahoma, 	LLC, 	and 	RB 	Realtyco, 	LLC 	on 	the 	claims 	asserted 	by
Plaintiffs in this action.
IT IS FURTHER ORDERED, ADJUDGED, and DECREED that judgment is
entered 	in 	favor 	of 	the 	Counterclaimant, 	Matthew 	Harrison, 	and
against the Counterclaim Defendants, Redbird Business Group, LLC,
Redbird 	Bioscience 	Oklahoma, 	LLC, 	and 	RB 	RealtyCo, 	LLC 	on
Counterclaimant’s 	claim 	for 	breach 	of 	contract. 	Judgment 	is
entered in favor of Counterclaimant, Matthew Harrison, and against
Counterclaim Defendant RB RealtyCo, LLC for breach of the guarantee
agreement. 	Damages are awarded in the Counterclaimant’s favor in
the amount of $437,500.00 and Counterclaimant is awarded specific
performance in the assignment of the unit grants in the percentages
set out herein.
A separate judgment shall issue forthwith.
IT IS SO ORDERED this 27th day of March, 2024.
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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