Dilendorf Law Firm represents Independent Sales Organizations (ISOs) nationwide in disputes arising from merchant processing portfolio sales.
This includes cases where merchant processors unreasonably delay or fail to issue a required Right of First Refusal (ROFR) notice. In portfolio transactions, timing is critical.
Delays by merchant processors can derail third-party deals, weaken negotiating leverage, and cause sellers to lose buyers entirely. Courts do not look favorably on such conduct.
A right of first refusal obligates the grantor—often a merchant processor or upstream counterparty—to provide the ISO with a timely opportunity to purchase or match the terms of a bona fide third-party offer before a sale is completed.
Under well-established case law, failure to provide notice or unreasonable delay in doing so constitutes a breach of the ROFR.
New York courts have repeatedly held that a ROFR holder is entitled to notice and a meaningful opportunity to act within a reasonable time, even where the contract does not specify an exact deadline (see Cipriano v. Glen Cove Lodge #1458, B.P.O.E.; New York Tile Wholesale Corp. v. Thomas Fatato Realty Corp.; Perri v. Case).
While these decisions arise under New York law, the principles they articulate—reasonable notice, good faith performance, and protection of preemptive rights—are widely recognized and applied by courts nationwide.
Many portfolio agreements across the country are also governed by New York law.
Processors often attempt to justify delay by pointing to silence in the contract regarding timing. That argument rarely succeeds.
Where an agreement does not specify a timeframe for performance, the law requires that performance occur within a reasonable time.
Delays that jeopardize a pending third-party sale, frustrate the purpose of the ROFR, or pressure the ISO to abandon the transaction can be challenged as unreasonable and unlawful.
Courts have also recognized that strategic or intentional delay—designed to interfere with a sale or extract leverage—violates the implied covenant of good faith and fair dealing inherent in every contract.
Every contract includes an implied obligation that parties will not act in bad faith to defeat the other party’s rights.
Courts have held that conduct aimed at undermining or nullifying a right of first refusal, including delay tactics, constitutes a breach of this covenant (see Clifton Land Co. LLC v. Magic Car Wash, LLC).
This principle applies regardless of industry and is routinely enforced nationwide.
Unreasonable delay in issuing a ROFR notice can cause irreparable harm, including:
Courts recognize that once a buyer walks away, the opportunity to sell on the same terms may never return.
Dilendorf Law Firm pursues aggressive remedies to protect ISO sellers, including:
Although many of the leading cases arise under New York law, the principles governing ROFR enforcement, reasonable timing, and good faith performance are recognized across jurisdictions.
Dilendorf Law Firm represents sellers nationwide, applying these doctrines strategically based on governing law, venue, and transaction structure.
Contact Us
If you are an ISO selling a merchant processing portfolio and a processor is delaying, stalling, or refusing to issue a right of first refusal notice, early legal action is critical.
📧 info@dilendorf.com
📞 212.457.9797
Dilendorf Law Firm represents ISOs nationwide in ROFR disputes and portfolio sale litigation—when delay threatens the deal.
