Last Friday, Judge Forrest granted the motion for summary judgment of a software licensor and technology company in its suit against Dutch bank ABN AMRO over the question of whether a license was successfully transferred prior to the execution of a “fast-paced transaction” between ABN AMRO and Bank of America.  ABN AMRO had continued to use the licensed software after the transaction, but the plaintiff claimed that the license had been transferred in the transaction and that ABN’s continued use was unlicensed. ABN argued that it was implied in a transition services agreement with Bank of America that BankTrade, the software application at issue, would remain under ABN’s control after the transaction.  Judge Forrest disagreed.

ABN continued to need BankTrade post-closing, and it was too late to take advantage of what pre-closing had been a clear ability to assign without cost or penalty. Post-closing the world changed in that regard – what was not done could not be retroactively accomplished without the involvement and agreement of BankTrade’s owner, plaintiff Complex Systems, Inc. (“CSI”). And, as it happened, CSI exercised its right to simply say “no” – or, more correctly, “no, without significant additional payment.” Such payment was not forthcoming. Instead, ABN, which acknowledges that it has continued to use BankTrade without interruption since the 2008 sale transaction, tried to reinterpret pre-closing events to include an assignment of the BankTrade license. Such an assignment would indeed have been easy to effect pre-closing. But it was not effected – and the law does not credit revisionist history with the weight of truth. Instead, ABN must live with the events that, in fact, occurred – not what could have occurred, or should have occurred. That such failure to assign was perhaps an oversight, or that such a failure to assign has resulted in significant economic exposure, is not the issue. The issue is whether there was a pre-closing assignment. There was not. That much is clear.