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When A First Right of Refusal Is Too Late

On December 22, 2022, the Superior Court of New Jersey, Appellate Division decided the case Saadia Square LLC v. SM Logistics Member LLC et. al. This case arises out of a dispute between the parties’ Operating Agreement and the ability to revoke an offer prior to acceptance. The Operating Agreement requires Defendant to offer Plaintiff the right of first refusal to purchase property that Plaintiff intends to sell prior to selling it to a third party. Defendant notified Plaintiff that they intended to sell property located in Mount Olive, New Jersey and Rialto, California.

​On January 23, 2021, Defendant sent Plaintiff a Sale Proposal offering to sell the NJ Property for $157 million and it was deemed received on January 25, 2021. On January 28, 2021, Plaintiff sent a list of requested due diligence materials. Defendant withheld a few of the materials and claimed that they would not be given to a third party purchaser. On February 19, 2021, Plaintiff sent Defendant a letter stating that it considered the Sale Proposal deficient because it failed to include the terms and conditions for the offered sale and that Defendant’s due diligence was deficient, but Plaintiff was extending its time to consider the offer by thirty days. On February 24, 2021 Plaintiff deposited $1 million in escrow. Defendant sent Plaintiff a letter and said that the Plaintiff had not timely extended its consideration period, therefore they had rejected the Sale Proposal.

Plaintiff filed an action against Defendant. On May 28, 2021, Defendant sent a letter stating they were no longer selling the New Jersey property. ​The Chancery Court dismissed the amended complaint because the offer to sell the NJ Property was lawfully revoked. Plaintiff appealed this decision to the Appellate Division. The Appellate Division reversed the Chancery Court and found that generally an offer can be revoked unless the offeree can show that the offer had to be held open for some period. The parties should also be accorded discovery on whether Plaintiff exercised its right to extend its election period for an additional thirty days.

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