Plaintiff Blue Citi LLC has sued Defendant 5Barz International, Inc. for specific performance, breach of contract, conversion, and attorneys' fees. See Compl., Dkt. 1. In an order dated August 28, 2017 (the "Prior Order"), the Court granted Plaintiff summary judgment on its claim for specific performance and awarded Plaintiff attorneys' fees. See Prior Order, Dkt. 54. The Prior Order also directed Plaintiff to move for summary judgment on its remaining claims or those claims would be dismissed. See id. at 14. Plaintiff now moves for summary judgment on its breach of contract claim, seeking monetary damages. See Pl.'s Notice of Mot., Dkt. 55; Pl.'s Mem. of Law, Dkt. 59 at 2. Plaintiff also seeks attorneys' fees and expenses incurred in connection with this motion. See Pl.'s Mem. of Law, Dkt. 59 at 2. Defendant cross-moves, pursuant to Federal Rules of Civil Procedure 60(b)(4) and 12(c), to vacate the Prior Order and for judgment on the pleadings. See Def.'s Notice of Mot., Dkt. 68.
For the following reasons, Defendant's cross-motions are DENIED, and Plaintiff's motion for summary judgment is GRANTED. The Court awards Plaintiff $180,204.36 in damages, $116,950.00 in prejudgment interest, and $5,837.12 in attorneys' fees and expenses. All claims for which Plaintiff did not move for summary judgment are DISMISSED.
BACKGROUND
I. The Note
The Court assumes familiarity with the facts of this case. See generally Prior Order.
The Note contained a conversion option, pursuant to which Plaintiff could convert the Note's outstanding principal and interest into shares of Defendant's common stock. See Prior Order at 2; Note § 4(a). The Note set the conversion price at a 60 percent discount of the stock's lowest trading price during a 20-day "look back" period. See Note § 4(a). The Note required Defendant to deliver the converted shares to Plaintiff within three business days of Defendant's receipt of a Notice of Conversion and provided that Defendant's failure to do so would be an "Event of Default." See id. Upon the occurrence of an Event of Default, the Note would become immediately due and payable, and default interest would begin accruing at a rate of 24 percent per annum. See id. § 8.
Additionally, the Note required Defendant to place into a reserve four times the number of shares that would be required if the Note were fully converted. See id. § 12. Finally, the Note required Defendant to pay "all costs and expenses, including reasonable attorneys' fees and expenses, which [were] incurred by [Plaintiff] in collecting any amount due under the Note," id. § 7, in addition to attorneys' fees incurred in any "action or proceeding to enforce any provision of [the] Note," id. § 8.
II. Defendant's Breach of the Note
On December 30, 2015, Plaintiff sent a Notice of Conversion to Defendant, seeking to convert $83,600 of the Note's outstanding value into 1,857,777 shares of Defendant's common stock. See Prior Order at 2; Malin Decl. ¶ 4; Malin Decl. Ex. C; Def.'s 56.1 Stmt. ¶ 3. The Notice of Conversion set the conversion price at $0.045 per share, based on a 60 percent discount of the stock's lowest trading price during the "look back" period (specifically, its price of $0.0751 per share on December 4, 2015). See Malin Decl. Ex. C. Defendant failed to timely deliver the shares to Plaintiff.
In March 2016, the parties entered into a Settlement Agreement. See Prior Order at 3. The Settlement Agreement required Defendant to pay Plaintiff $168,065 in eight monthly installments of $21,008. See id. at 3, 10. While it is not entirely clear how the parties arrived at the $168,065 figure, the amount appears to represent principal, interest, and default interest due under the Note, along with an additional 40 percent "spicer." See id. at 3 n.5. After entering into two addenda to the Settlement Agreement, Defendant paid Plaintiff one installment in cash and three installments in shares, for a total value of $84,033 (i.e. , approximately half of the amount due under the Settlement Agreement). See id. at 3-4, 10; Def.'s 56.1 Stmt. ¶ 6; Pl.'s Reply Mem. of Law at 15. Defendant has not paid the remaining amount due under the Settlement Agreement. See Prior Order at 10.
III. Procedural History
Plaintiff filed this action on November 21, 2016, and subsequently moved for summary judgment, seeking an order directing Defendant to deliver the shares requested in the Notice of Conversion. See Pl.'s Prior Notice of Mot., Dkt. 28; Prior Order at 1, 11. The Court granted Plaintiff's motion, holding that the Note was a valid contract and that Defendant had breached it by failing to deliver the requested shares. See Prior Order at 12 ("There is a valid contract in place, and Blue Citi performed its obligations thereunder."); id. at 2 ("There is no dispute between the parties that 5Barz breached the Note."); id. at 10 (same); id. at 11 (same). The Court also awarded Plaintiff $18,988.33 in attorneys' fees. See id. at 12-14. Defendant subsequently delivered the shares as ordered. See id. at 12-13; See Pl.'s 56.1 Stmt. ¶ 6; Def.'s 56.1 Stmt. ¶ 6.
The Prior Order also held that the Settlement Agreement was an executory accord to the Note, meaning that Defendant's obligations under the Note remain in force unless and until Defendant materially fulfills its obligations under the Settlement Agreement (and its addenda). See Prior Order at 5-9.
Plaintiff now moves for summary judgment on its breach of contract claim, seeking damages for the reduction in the value of Defendant's shares between the date on which Defendant was first required to deliver the shares (which Plaintiff alleges was December 30, 2015) and the date that Defendant finally delivered the shares as required by the Prior Order (September 1, 2017). See Pl.'s Mem. of Law at 2. Plaintiff also seeks reimbursement for attorneys' fees and expenses incurred in connection with this motion. See id.
Defendant cross-moves to vacate the Prior Order and for judgment on the pleadings, seeking to dismiss the Complaint in its entirety. See Def.'s Cross-Mot. Mem. of Law at 1, 24.
DISCUSSION
I. Defendant's Cross-Motion to Vacate and Cross-Motion for Judgment on the Pleadings Are Denied
A. Defendant's Cross-Motion to Vacate Is Denied
Rule 60(b)(4) allows a court to relieve a party from a final judgment if
Defendant's primary argument is that the Note violates New York's laws against criminal usury. See Def.'s Cross-Mot. Mem. of Law at 1. In Defendant's view, criminally usurious financial instruments are "void ab initio " and unenforceable as a matter of law. See
Defendant's motion is procedurally improper. Defendant fails to articulate how the allegedly usurious nature of the Note deprived this Court of subject-matter jurisdiction or deprived Defendant of due process. Rather, Defendant's arguments go to the merits of the Prior Order. See, e.g. , Defs.' Reply Mem. of Law at 1 ("[V]acatur is proper because the Court acted inconsistent with the law ...."). But Rule 60(b)(4) is not a vehicle to reargue the merits of a prior judgment or otherwise to show that the judgment relied on erroneous principles of law. See Espinosa ,
B. Defendant's Cross-Motion for Judgment on the Pleadings Is Denied
"Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc. ,
"[T]he 'law of the case' doctrine is a rule of practice followed by New York courts that dictates that a decision on an issue of law made at one stage of a case becomes binding precedent to be followed in subsequent states of the same litigation." Perreca v. Gluck ,
Defendant's motion for judgment on the pleadings seeks to dismiss the Complaint on the ground that the Note is usurious. See Defs.' Cross-Mot. Mem. of Law at 24-25. Defendant's motion fails. By arguing that the Note is unenforceable as a matter of law, Defendant essentially seeks to revisit this Court's prior holding that the Note is a valid contract. See Prior Order at 2, 10-12. Defendant had a full and fair opportunity to raise a usury defense in response to Plaintiff's prior motion for summary judgment, but Defendant chose not to do so. See Def.'s Cross-Mot. Mem. of Law at 21 ("[A]lthough properly raised by the defendant in its answer, [Defendant] did not raise the defense of criminal usury to oppose the prior motion for partial summary judgment."). By failing to press its affirmative defense, Defendant waived the defense. Law of the case operates the same way whether an argument is raised (and rejected) or waived. See In re Nassau Cty. Strip Search Cases ,
C. The Note Is Not Criminally Usurious
Even if Defendant's cross-motions to vacate and for judgment on the pleadings were procedurally proper and not barred by law of the case, they would fail because, as a matter of law, the Note is not criminally usurious.
1. Legal Standard
Under New York law, a contract is criminally usurious if the parties to the agreement knowingly provide for an interest rate of 25 percent per annum or more. See
2. Application to this Case
The Note charged an interest rate of 10 percent per annum. See Note §§ 4(b), 8. Defendant argues that a number of other provisions in the Note and payments made
a. The Conversion Price
New York's usury laws do not apply to an option to convert a loan's principal into shares of stock. See Beaufort Capital Partners LLC v. Oxysure Sys., Inc. , No. 16-CV-5176,
Defendant relies on two cases, Hillair Capital Investments, L.P. v. Integrated Freight Corp. ,
Defendant relies on a third case, Custom Chrome Inc. v. Comm'r of Internal Revenue ,
For all these reasons, the Court finds that the Note's conversion price did not render the Note usurious.
Next, Defendant argues that the share reserve required by the Note constitutes usurious interest. Defendant's argument relies upon a single case, Funding Grp., Inc. v. Water Chef, Inc. ,
c. The Default Interest Rate
Next, Defendant argues that the Note's default interest provisions make the Note usurious. The Court disagrees. While the Second Circuit has not squarely ruled on the issue, the majority of district courts in this Circuit to have considered the issue have held that New York's usury laws do not apply to default interest rates. See, e.g., Hillair ,
Two district court cases, Madden and Union Capital , have reached the opposite conclusion. See Union Capital ,
In short, while it is possible the New York Court of Appeals will see the issue differently, this Court finds that the policy judgments underlying the usury laws do not apply to agreed-upon default interest rates. Rather, this Court concurs with the majority view in this Circuit that default interest provisions do not render a note usurious.
d. Defendant's Payments Pursuant to the Settlement Agreement and the Prior Order
Finally, Defendant asserts -in a point buried in its Rule 56.1 Statement-that Plaintiff has already received $84,033 (in payments under the Settlement Agreement) and $83,600 (in shares of common stock, delivered pursuant to the Prior Order), for a total of $167,632; because Plaintiff paid $100,000 for the Note, Defendant argues that the $167,632 in payments constitute a total "interest rate" of 67.6 percent. See Def.'s 56.1 Stmt. ¶ 6. This argument is frivolous. Those payments were made pursuant to the parties' executory accord and to this Court's Prior Order granting Plaintiff specific performance. See Prior Order at 3, 12. Nothing in the record supports Defendant's argument that the difference between these payments and the purchase price of the Note constitutes "interest" under the usury laws.
For all these reasons, the Court finds that the Note is not criminally usurious. Defendant's cross-motion to vacate and cross-motion for judgment on the pleadings are denied.
II. Plaintiff's Motion for Partial Summary Judgment Is Granted
A. Standard of Review
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett ,
B. Damages for Breach of Contract
Under New York law, a plaintiff in a breach of contract action is entitled to recover "both for the value of the promised performance and for additional losses the plaintiff suffered due to the failure to perform." Versatile Housewares & Gardening Sys., Inc. v. Thill Logistics, Inc. ,
"[I]t is well established in New York law that '[t]here is no inconsistency
Plaintiff is entitled to damages for Defendant's breach of the Note. In its Prior Order, the Court found that Defendant breached the Note, and the Court ordered Defendant to deliver the shares requested in the Notice of Conversion. This remedy, however, did not account for the reduction in the value of those shares between the date that Defendant was obligated to deliver them (i.e. , three business days after Defendant received the Notice of Conversion) and the date the Defendant actually delivered them (September 1, 2017). See Prior Order at 11-12; Pl.'s Mem. of Law at 7. Plaintiff would have been better off had Defendant properly performed its obligations under the Note. Plaintiff is entitled to damages in order to be put "in as good a position as it would have been had the contract been fully performed." McKinley Allsopp ,
Defendant argues that "Plaintiff has already received the benefit of its bargain" in the form of $84,033 paid under the Settlement Agreement and $83,600 in principal that the Prior Order directed Defendant to convert into shares. Def.'s Resp. Mem. of Law at 4; Def.'s 56.1 Stmt. ¶ 8. In Defendant's view, these payments mean that "Plaintiff has been made whole and is not entitled to additional damages." Def.'s Resp. Mem. of Law at 4. Defendant is wrong. First, as to the $84,033, the Court held in the Prior Order that the Settlement Agreement is an executory accord. See Prior Order at 5-9. Because Defendant materially breached the Settlement Agreement (by paying only half of the amount owed under the Agreement), the Prior Order held that the payments under the Settlement Agreement did not extinguish Defendant's obligations under the Note. See id. at 10 (stating that Defendant's comparison between the Settlement Agreement and the Note is a comparison between "apples and oranges"). As to the $83,600 in principal that the Court ordered Defendant to convert into shares, the Prior Order's remedy did not account for the value that Plaintiff could have captured by selling the shares had Defendant delivered them when it was first obligated to do so. Even if the conversion had accounted for the entire outstanding principal and interest due under the Note-which it did not, see id. at 10-Plaintiff would still be in a worse position than if Defendant had timely performed the contract, because the shares that Plaintiff sought to convert were worth more at the time of the breach than at the time the shares were finally delivered.
Finally, Defendant argues that Plaintiff is not entitled to damages because the Note is criminally usurious and void as a matter of law. See Def.'s Resp. Mem. of Law at 4. For the reasons that the Court has discussed, this argument lacks merit.
The measure of Plaintiff's damages is slightly more complicated. Plaintiff offers evidence that on December 30, 2015 (the date that Plaintiff issued the Notice of Conversion), the volume-weighted average price of a share of Defendant's common stock was $0.142. See Pl.'s 56.1 Stmt. ¶ 7 (citing Malin Decl. Ex. D). The Notice of Conversion sought to purchase 1,857,777 shares on that date. See id. ¶ 3. Thus, had Defendant delivered the shares on December 30, 2015, Plaintiff would have received shares worth $263,804.33. See id. ¶ 8. By the time Defendant eventually delivered the shares (September 1, 2017), however, the volume-weighted average price per share had dropped to $0.045. See id. ¶ 9 (citing Malin Decl. Ex. E). As a result, Plaintiff's shares on the date that Defendant delivered them were worth only $83,599.97. See id. ¶ 10. The total difference in value is $180,204.36. See id. ¶ 11. Plaintiff argues that it is entitled to that amount in damages. See Pl.'s Mem. of Law at 7.
Plaintiff's analysis contains several assumptions. First, the Note allowed Defendant "three business days" after receiving a Notice of Conversion to deliver the shares to Plaintiff. See Note § 4(a). Thus, a breach of Defendant's obligations did not occur until after those three business days had elapsed. See id. § 8(k) (defining an "Event of Default" as Defendant's failure to deliver shares "within 3 business days of its receipt of a Notice of Conversion"). Plaintiff issued the Notice of Conversion on December 30, 2015, so Defendant's breach did not occur until three business days later, January 6, 2016. See Malin Decl. Ex. C. By seeking damages for the difference in stock price between December 30, 2015 and September 1, 2017, Plaintiff incorrectly assumes that Defendant's breach occurred on December 30, 2015.
The present record does not indicate the price of the stock on the date of breach, January 6, 2016. The Court notes, however, that "New York courts have significant flexibility in estimating general damages." Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc. ,
The second assumption in Plaintiff's analysis is slightly more problematic. Plaintiff states that it "has sold all of the shares" that it received from Defendant. Supp. Malin Decl. ¶ 8. But Plaintiff does not provide any information about the price at which it sold the shares. Plaintiff seeks damages for the reduction in the value of the shares between December 30, 2015 and September 1, 2017, but if the stock price rose subsequent to September 1, and if Plaintiff sold the shares at that higher price, then the difference between that higher price and the price on September 1 should be deducted from Plaintiff's damages.
Two facts, however, convince the Court that Plaintiff's damages analysis is appropriate. First, Defendant fails entirely to address this point or otherwise to raise a nonfrivolous dispute as to the proper measure of damages. Second, Plaintiff's statement that it has sold its shares was filed with the Court on October 29, 2017, see Supp. Malin Decl.; taking judicial notice of publicly available stock-price data, the Court notes that the price of Defendant's shares declined considerably between September 1 and October 29, 2017, making it questionable whether Plaintiff was able to sell the shares at a premium.
For all these reasons, the Court adopts Plaintiff's damages calculations. Plaintiff is entitled to $180,204.36 in damages as a matter of law.
C. Prejudgment Interest
"In a diversity case, state law governs the award of prejudgment interest." Schipani v. McLeod ,
New York provides a statutory rate of prejudgment interest of 9 percent per annum, see
Other than the previously rejected arguments that the Note is usurious and that Plaintiff has "already received the benefit of its bargain," Defendant fails to dispute that Plaintiff is entitled to prejudgment interest. See Def.'s Mem. of Law at 9.
The "earliest ascertainable date" that Plaintiff's cause of action existed,
In terms of the applicable rate, the parties unambiguously contracted for a rate of 24 percent per annum in the event that Defendant failed to timely deliver the shares. See Note § 8. Under New York law, Plaintiff is entitled to prejudgment interest at the agreed-upon rate. See NML Capital ,
For all these reasons, the Court awards Plaintiff prejudgment interest at a rate of 24 percent per annum on its damages of $180,204.36, beginning on January 6, 2016 and continuing through the date of this opinion. The total amount of prejudgment interest awarded to Plaintiff is $116,950.00.
D. Attorneys' Fees and Expenses
Under New York law, parties may contract for the indemnification of attorneys' fees and expenses. See Hooper Assocs., Ltd. v. AGS Computers, Inc. ,
The Note requires Defendant to pay all "reasonable attorneys' fees and expenses" that Plaintiff incurs in enforcing the provisions of the Note. See Prior Order at 3, 13; Note §§ 7, 8. Plaintiff seeks attorneys' fees for approximately 15.4 hours of work, at a rate of $375 per hour, plus expenses, for a total of $5,837.12. See Pl.'s Mem. of Law at 9; Fleischmann Decl. Ex 1.
The Prior Order found that Plaintiff's counsel's billing rate of $375 per hour was reasonable, given his seniority and experience. See Prior Order at 13-14. Defendant now argues that Plaintiff's counsel billed a different client at a rate of $350 per hour, purportedly raising a dispute of fact as to whether his $375-per-hour rate is reasonable. See Def.'s Resp. Mem. of Law at 10. Plaintiff's counsel, however, offers undisputed evidence that his relationship with that other client began a year earlier than his relationship with Plaintiff, and that his fees increased by $25 per hour during the intervening period. See Pl.'s Reply Mem. of Law at 16; Supp. Fleischmann Decl. ¶ 3. The Court believes that this increase is reasonable and, in any event, adheres to its prior ruling that $375 per hour is a reasonable rate.
As for the number of hours expended in connection with this motion, Plaintiff has offered an invoice showing his contemporaneous time records. See Fleischmann Decl. Ex. 1. The Court has reviewed these records and finds that the number of hours expended is within the range of what would be expected for a motion of this sort.
For all these reasons, the Court awards Plaintiff $5,837.12 in attorneys' fees and expenses.
III. All of Plaintiff's Other Claims Are Dismissed
The Prior Order directed Plaintiff to move for summary judgment on any claims that it wished to pursue and stated that if Plaintiff failed to do so, the Court would dismiss the remaining claims. See Prior Order at 14. In the motion currently before the Court, Plaintiff moves for summary judgment only as to its breach of contract claim and its claim for attorneys' fees (that is, the Second and Fifth Causes of Action in the Complaint, respectively). See Pl.'s Mem. of Law at 2.
Plaintiff has not moved for summary judgment on its claims for conversion, for a permanent injunction, or for breach of the Settlement Agreement (that is, the Third, Fourth, and Sixth Causes of Action in the Complaint, respectively). Accordingly, those claims are dismissed for failure to prosecute.
CONCLUSION
For all the foregoing reasons, Plaintiff's motion for summary judgment (Dkt. 55) is GRANTED. The Court awards Plaintiff $180,204.36 in damages, $116,950.00 in prejudgment interest, and $5,837.12 in attorneys' fees. Defendant's cross-motions to vacate and for judgment on the pleadings (Dkt. 68) are DENIED. All claims on which Plaintiff did not move for summary judgment (specifically, Plaintiff's claims for conversion, for a permanent injunction, and for breach of the settlement agreement) are DISMISSED. The Clerk is respectfully directed to terminate all open motions and to CLOSE the case.
SO ORDERED.
Notes
The Court will refer to the parties' filings as follows: the Declaration of Robert Malin, Dkt. 56, submitted in support of Plaintiff's motion, as "Malin Decl."; the Declaration of Jeffrey Fleischmann, Dkt. 57, submitted in support of Plaintiff's motion, as "Fleischmann Decl."; Plaintiff's Rule 56.1 Statement, Dkt. 58, as "Pl.'s 56.1 Stmt."; Plaintiff's memorandum of law, Dkt. 59, submitted in support of its motion for summary judgment, as "Pl.'s Mem. of Law"; Defendant's memorandum of law, Dkt. 65, submitted in opposition to Plaintiff's motion for summary judgment, as "Def.'s Resp. Mem. of Law"; Defendant's response to Plaintiff's 56.1 Statement, Dkt. 66, as "Def.'s 56.1 Stmt."; and Defendant's memorandum of law in support of its cross-motion to vacate, Dkt. 69, as "Def.'s Cross-Mot. Mem. of Law." Defendant submitted two declarations of Mark Geoghegan: one in support of its motion to vacate, Dkt. 70, which the Court will refer to as "First Geoghegan Decl.," and one in support of its response to Plaintiff's motion for summary judgment, Dkts. 71, 72, which the Court will refer to as "Second Geoghegan Decl." Plaintiff submitted, in a single memorandum of law, a combined reply in further support of its motion for summary judgment and response in opposition to Defendant's cross-motion, Dkt. 73, which the Court will refer to as "Pl.'s Reply Mem. of Law." Finally, the Court will refer to the Supplemental Declaration of Robert Malin, submitted in further support of Plaintiff's motion for summary judgment, Dkt. 74, as "Supp. Malin Decl."; the Supplemental Declaration of Jeffrey Fleischmann, submitted in further support of Plaintiff's motion, Dkt. 75, as "Supp. Fleischmann Decl."; and Defendant's reply memorandum of law in further support of its cross-motion to vacate, Dkt. 76, as "Def.'s Reply Mem. of Law."
Defendant argues that the Notice of Conversion was not valid for several reasons, including that it was "not provided in the format provided for" in the Note, that it "appeared to be a negotiation tactic," that it provided for charges against Defendant "to which [Plaintiff] was not entitled," and that it constituted "criminal usury." Def.'s 56.1 Stmt. ¶ 4. Nevertheless, Defendant does not dispute the underlying facts that it received the Notice of Conversion and that it failed to timely deliver the shares requested. See id. ¶ 5.
Defendant argues that the price of the common stock on the date of the Notice of Conversion was $0.0751 per share, not $0.142 per share as Plaintiff alleges. See Def.'s Resp. Mem. of Law at 4; Def.'s 56.1 Stmt. ¶¶ 7, 11. Defendant cites no part of the record for this assertion, but the argument appears to be based on the following notation in the Notice of Conversion: "Applicable Conversion Price: .045 (.0751 on Dec. 4)." Malin Decl. Ex. C. From this notation, Defendant leaps to the conclusion that the price of common stock on the date of the Notice of Conversion (i.e. , December 30, 2015) must have been $0.0751. This argument is frivolous. The Notice of Conversion clearly indicates that $0.0751 was the price of the stock on December 4, 2015, that is, during the historical "look back" period from which the conversion price was calculated-not on the date that the Notice of Conversion was issued, December 30, 2015. See id. And in case there were any doubt, Plaintiff has submitted a website printout confirming these prices, see Supp. Malin Decl. Ex. 1, and this evidence was not controverted by Defendant.
Specifically, the opening price per share was $0.140 on December 30, 2015 and $0.1495 on January 6, 2016. See InvestorsHub.com, Historical Data , https://ih.advfn.com/stock-market/USOTC/5barz-international-inc-pn-BARZ/historical/more-historical-data.
The opening price per share on October 30, 2017, for example, was $0.0315. See InvestorsHub.com, Historical Data , https://ih.advfn.com/stock-market/USOTC/5barz-international-inc-pn-BARZ/historical/more-historical-data. Of course, it is likely that part of the reduction in prior occurred because the Plaintiff sold its shares; no evidence in the record, however, confirms this conclusion.
There is no inconsistency between awarding damages based on the stock price on December 30, 2015 and awarding prejudgment interest beginning on January 6, 2016. As the Court has discussed, the stock price on December 30, 2015 is a proxy, or a "reasonable estimate," Tractebel Energy Mktg. ,