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In June 2016, AmSurg Corp. and Envision Healthcare Holdings, Inc. (Envision) announced they have signed a definitive merger agreement pursuant to which the companies will combine in an all-stock transaction. Upon completion of the merger, which is expected to be tax-free to the shareholders of both organizations, the combined company will be named Envision Healthcare Corporation and co-headquartered in Nashville, Tennessee and Greenwood Village, Colorado. The company's common stock is expected to trade on the New York Stock Exchange under the ticker symbol: EVHC. Bass, Berry & Sims served as lead counsel on the transaction, led by Jim Jenkins. Read more.

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Inside the FCA blogInside the FCA blog features ongoing updates related to the False Claims Act (FCA), including insight on the latest legal decisions, regulatory developments and FCA settlements. The blog provides timely updates for corporate boards, directors, compliance managers, general counsel and other parties interested in the organizational impact and legal developments stemming from issues potentially giving rise to FCA liability.

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Chris Lazarini Examines Preponderance of Evidence Standard

Securities Litigation Commentator


May 26, 2016

Bass, Berry & Sims attorney Chris Lazarini examined the case of Kinzel vs. Bank of America in which the plaintiff sued Merrill Lynch (Bank of America) claiming that Merrill's sale of his loan collateral (stock) violated the duty of good faith and fair dealing in their loan management agreement. The court found Plaintiff failed to establish by a preponderance of the evidence that Merrill intended to destroy or injure him and concluded the evidence insufficient to prove Merrill exercised its discretion for a reason beyond the risks contemplated by the parties.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

Kinzel vs. Bank of America, No. 3:10cv2169 (N.D. Ohio, 3/14/16) 

*Where a contract grants one party the right to use its sole discretion or sole judgment in making decisions, the other party faces a high hurdle in establishing a breach of the duty of good faith and fair dealing and must show conduct tantamount to intent to harm.
**Preponderance of the evidence requires the evidence to be such that reasonable minds acting fairly could believe the existence of a fact is more probable or more likely than its non-existence. 

Plaintiff is the former president and CEO of Cedar Fair, an amusement park company. In April 2008, Plaintiff exercised an option to purchase 650,000 Cedar Fair shares. To finance the purchase and pay the associated taxes, Plaintiff, acting through a trust, entered into a Loan Management Agreement ("LMA") with Merrill Lynch, borrowing $7.7 million and pledging Cedar Fair stocks, non-Cedar Fair stocks, and bonds as collateral. In late 2008, Plaintiff's pledged holdings were losing value, along with the stock market generally, and the loan exceeded Merrill's maintenance requirements. Plaintiff remedied the deficit by making payments on the LMA balance and pledging additional collateral.

In early 2009, as his collateral value continued to deteriorate, Plaintiff made additional LMA payments (some of which resulted from the sale of non-Cedar Fair collateral), offered additional collateral and told Merrill he would commit his expected tax refund and Cedar Fair bonus to the LMA. Plaintiff communicated to Merrill that he wanted to avoid liquidating his pledged Cedar Fair holdings. The maintenance problems persisted and, in February 2009, Merrill began selling Plaintiff's Cedar Fair holdings, which by that time were almost the only collateral left securing the LMA. The sales were suspended after Plaintiff provided documentation of forthcoming funds through which he would retire the LMA balance. Plaintiff paid the LMA balance in March 2009, and sued, alleging that Merrill's sale of the Cedar Fair stock was impermissible.

The Court dismissed most of the claims on pre-trial motions, and conducted a bench trial on the sole issue of whether Merrill breached the implied covenant of good faith and fair dealing when it liquidated Plaintiff's Cedar Point holdings. In this Opinion, after hearing the evidence, the Court concludes that Plaintiff has failed to establish by a preponderance of the evidence that Merrill intended to destroy or injure him. The parties knew, the Court explains, that Merrill would exercise its sole discretion in setting maintenance levels, determining whether the value of the pledged collateral was sufficient, determining whether its security interest was impaired and exercising its right to require additional collateral or to liquidate pledged collateral.

The Court finds that Merrill used its ordinary deliberative process in evaluating Plaintiff's Cedar Fair shares and making maintenance and liquidation decisions. Nor was Merrill's right to exercise discretion negated or limited by the fact that it accommodated Plaintiff's preference to first sell non-Cedar Fair collateral. Finally, the Court finds the evidence insufficient to prove that Merrill exercised its discretion for a reason beyond the risks contemplated by the parties. 

Interestingly, the Court declined Merrill's counterclaims for indemnity. Merrill sought indemnity for attorney's fees and costs in defending against Plaintiff's individual claims, as opposed to his trust claims. The Court states that it does not find Merrill's actions to be proper; it finds only that Plaintiff fails to meet the preponderance of the evidence standard to show breach of the covenant of good faith and fair dealing.

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