New Orleans — Texas-based private equity company Ancor Holdings LP argued before the Fifth Circuit on Tuesday that it was wrongfully excluded from an acquisition deal involving electric golf cart manufacturer ICON EV by another private equity group, Landon Capital Partners LLC, which Ancor had initially brought in as a backup investor.

Ancor's attorney, Jeffrey Travis of Travis & Inman PC, told a three-judge panel that Landon and ICON went behind its back to close the deal without its involvement, despite a binding letter of intent and a non-circumvention clause in place. This clause, Ancor argues, entitles it to a "promote interest" fee, representing 20% of the company's growth after its eventual sale.

In 2020, Ancor sued Landon and ICON after a deal to invest in ICON, preparing for its sale, fell apart. Ancor claims that Landon breached the contract by proceeding with the deal independently, violating the non-circumvention clause. Ancor also argues that ICON tortiously interfered with the contract.

Travis argued that the trial court wrongfully denied Ancor the right to a jury trial on its claim for the promote interest fee, asserting that the non-circumvention clause is a binding part of the contract, which Landon violated. He stated that even though ICON has not yet been sold, Ancor had to sue to ensure it could receive future payments resulting from the sale.

Judge Edith Brown Clement asked about the timing of the sale and the necessity of the lawsuit. Travis emphasized that the non-circumvention clause made it imperative to act before the sale to secure future interests.

Judge Cory Wilson questioned why the trial court denied granting judgment as a matter of law in favor of Landon on the breach of contract claims. Travis responded that there was ample evidence of a contract, breach, and damages.

Landon's attorney, Alexander Harrell of Faegre Drinker Biddle & Reath, argued that Ancor is not entitled to the promote interest or other damages because it couldn't prove those damages were expected, given the expired letter of intent and the dead proposed transaction. Harrell maintained that the non-circumvention clause only applied during due diligence, a stance Travis argued against.

ICON's attorney, Courtney L. Fernald of Englander and Fischer LLP, contended that ICON, being the deal's subject, couldn't be considered a "stranger to the contract" and thus couldn't have tortiously interfered. Judge Wilson appeared skeptical, asking for case law supporting that view, which Fernald struggled to provide.

U.S. Circuit Judges Edith Brown Clement, Kurt D. Engelhardt, and Cory T. Wilson presided over the panel. Representatives and counsel for Ancor, Landon, and ICON did not immediately respond to requests for comment.

• Ancor is represented by Jeffrey Travis, Jared Inman, Marshall Smiland, and Katelynn Hickey of Travis & Inman PC.
• Landon is represented by Travis Gamble, David Kent, and D. Alexander Harrell of Faegre Drinker Biddle & Reath.
• ICON is represented by Courtney Fernald of Englander Fischer LLP, and John Frick of Reid Dennis & Frick PC.

The case is Ancor Holdings v. Landon Capital Partners et al., case number 23-10552, in the U.S. Court of Appeals for the Fifth Circuit.