C S BIO CO., et al. v. COMERICA BANK

Background

Comerica Bank moved for summary judgment, arguing that plaintiffs CS Bio Co. and CCS Management, LLC, collectively referred to as “CS,” lacked evidence of damages caused by Comerica’s alleged misrepresentations. The order states that CS’s viable claims were based on alleged assurances made on November 20 and 23, 2020, that CS could pay a contractor’s October invoice of $738,000 without jeopardizing loan funding and would be reimbursed from loan proceeds. CS also alleged that Comerica assured it on November 24, 2020, that a violation of the FCCR covenant would be waived.

The court had previously ruled that these allegations could support CS’s fraud claim and a related claim based on concealment or failure to disclose. In a later order denying CS leave to file a third amended complaint, the court said CS could present at trial or in opposition to summary judgment its arguments and discovery evidence concerning Intarcia’s financial condition and the FCCR issue. This order clarifies that CS could pursue an allegation that Comerica falsely promised Intarcia’s financial condition would not prevent final loan approval, to the extent that allegation was not already explicitly stated in the second amended complaint.

Causation and damages

The order explains that Comerica’s summary-judgment arguments about causation and damages were intended to apply to all of the potentially viable misrepresentation theories. The court stated that Comerica’s moving papers appeared to satisfy its initial burden of showing that CS lacked required evidence, which would shift the burden to CS to identify at least a genuine factual dispute. The court also said that, even if Comerica had not met that burden or had not expressly addressed every potentially decisive issue, the record suggested CS might lack a basis to recover damages.

CS described its damages as including construction delays, lost leasing opportunities, the need to secure a new lender after the loan ended, and higher interest rates. The court observed that these theories largely compared what CS says would have happened if the loan had been approved with what happened when it was not. The court stated that this appeared to be the wrong damages measure for the alleged fraud.

The court explained that CS could not claim that Comerica had made an enforceable promise to fund the loan. Therefore, the relevant question was not what position CS would have occupied if the loan had gone through, but what damages CS suffered because it reasonably relied on the alleged misrepresentations, false promises, failures to disclose, or concealments. The court stated that CS had offered little evidence supporting or quantifying those reliance-based damages or showing a genuine factual dispute about them.

Order

The court did not grant or deny Comerica’s summary-judgment motion in this order. Instead, under Rule 56(f) of the Federal Rules of Civil Procedure, it advised CS that summary judgment could be entered against it on the causation and damages grounds discussed in the order, even if those grounds were not fully presented in Comerica’s motion. CS was allowed to file a supplemental brief of no more than 18 pages within one week of December 2, 2025, which the order identifies as the date the original, misdated version was entered. Comerica was allowed to file a supplemental reply of no more than 18 pages within one week after CS’s filing.

The order continued the hearing from December 4, 2025, to January 8, 2025, as stated in the text, to permit further briefing. The date appears inconsistent with the order’s December 4, 2025 date, but the opinion itself does not correct it.