Union County v. Piper Jaffray & Co. (741 F. Supp. 2d 1064, 2010)

MEMORANDUM OPINION AND ORDER

ROBERT W. PRATT, Chief Judge.

Before the Court is a Motion for Summary Judgment filed by Defendant, Piper Jaffray & Co. Inc. (“Piper”). Clerk’s No. 127. Plaintiff, Union County, Iowa (“Union County” or the “County”) filed a resistance to the Motion (Clerk’s Nos. 133-144), Piper replied (Clerk’s No. 154), and the County filed a surreply (Clerk’s No. 159). The Court held a hearing on the Motion on April 9, 2010. Clerk’s No. 166. The matter is fully submitted.

I. FACTS

Union County is a political subdivision of the State of Iowa, with an approximate population of 12,000-13,000 persons between the years 1990 and 2008. Def.’s Statement of Undisputed Material Facts (hereinafter “Def.’s Facts”) ¶ 1; Def.’s App. at 1898. The Union County Board of Supervisors (the “County Board”) makes decisions for Union County and operates on its behalf. Def.’s Facts ¶ 2 (citing Iowa code § 331.301). The Board consists of five members, elected to staggered four-year terms. Id. ¶ 3. From 1995 to 1998, the Board was comprised of Michael King (“King”), Michael Reasoner (“Reasoner”), Gerald McLain (“McLain”), Robert Brown (“Brown”), and JoAnn Bradley (“Bradley”). Id. ¶¶ 6-9. Bradley served as the County Board Chair in 1995 and 1996, while Reasoner served as the County Board Chair in 1997 and 1998. Id. Additional relevant county officials include Don Krings (“Krings”), Union County Auditor; Tim Kenyon (“Tim Kenyon”), Union County Attorney; and Audrey Paxton (“Paxton”), Union County Assessor. Id.

The City of Crestón (“Crestón” or the “City”) is located in Union County, and had a total approximate population of between 7,500 and 8,000 persons between 1990 and 2008. Def.’s App. at 1899. Crestón is the county seat of Union County, and Creston’s City Hall is located approximately three blocks away from Union County Courthouse and from the County Board’s offices. Def.’s Facts ¶ 5. Arnold “Skip” Kenyon (“Skip Kenyon”), the brother of Tim Kenyon, was the Crestón City Attorney during the events giving rise to this case. Id. ¶ 10. Larry Wynn (“Wynn”) was Creston’s Mayor, and Joe Parker (“Parker”) was the City Finance Officer. Id. ¶ 11.

Crestland Cooperative (“Crestland”) is an Iowa cooperative association located primarily in Union County, with approximately 2,225 members, all of whom were entitled to receive annual financial reports regarding Crestland. Id. ¶ 12. Relevant Crestland officials during the time frame of the events giving rise to this lawsuit included Crestland’s Chief Executive Officer (“CEO”) and General Manager, Larry Crosser (“Crosser”), and Crestland’s Chief Financial Officer (“CFO”), Doug Elliot (“Elliot”). Id. ¶ 13.

Piper is a Delaware corporation headquartered in Minneapolis, Minnesota, with an office in Des Moines, Iowa. Id. ¶ 14. Piper is a registered securities broker-dealer and investment banker that serves, among other things, as an underwriter in municipal securities offerings. Id. ¶ 15. Union County notes that Piper also serves as a Financial Advisor to many of its clients and that financial advisory services are among the services offered and provided by Piper. Pl.’s Resp. to Def.’s Facts ¶ 15. Timothy Oswald (“Oswald”), the managing director of Piper’s Des Moines office, served as Piper’s lead representative in relation to the events underlying the present action. Def.’s Facts ¶ 16.

A. The Proposed Project

At the end of the 1995 fiscal year, Crest-land’s financial statements indicated that Crestland and its wholly-owned subsidiary, C.C.M., Inc. (“COM”) had $443,000 in net gains or profits. Id. ¶ 23. In part due to these successes, Crestland’s CEO and General Manager, Crosser, began discussing with Farmland Industries (“Farmland”) and local leaders the idea of building a soybean crushing facility, to be known as CF Processing, adjacent to its elevator in Crestón. On November 14, 1995, Farmland completed and forwarded to Crestland a feasibility study in relation to the soybean crushing plant project (hereinafter the “Development Project”). Def.’s Facts ¶ 29; Def.’s App. at 162-174. The feasibility study indicated that, to be successful, four factors were critical, namely oil marketing, meal marketing outside niche, efficient plant operations, and real crush margins. Def.’s Facts ¶ 29; Def.’s App. at 174. In regard to the crush margins, the feasibility study indicated that the soybean crushing facility would need a crush margin “average” of between $0.69 and $0.79 per bushel of soybeans to be feasible, and that the 10-year crush margin and 5-year crush margin in Union County had been $0.85 and $0.90, respectively. Def.’s Facts ¶ 29; Def.’s App. at 173-74. The study further projected that the capital cost of the project would be about $15 million, and that Farmland Industries (“Farmland”) would join in the venture and make an equity investment of approximately $3 million. Def.’s Facts ¶ 25. Crestón was willing to issue tax-exempt Industrial Development Revenue bonds (“IDR Bonds”) on behalf of Crest-land up to approximately $10 million to assist in financing the project. Id. ¶ 26.

B. Creston’s Involvement in the Development Project

In approximately October 1995, in an effort to undertake the IDR bond issuance, Crestón engaged John McKinney and Linda Kniep of Ahlers & Cooney Law Firm (“Ahlers”) as “Issuer’s counsel.” See Def.’s Facts ¶ 27. Piper, represented by Oswald, was engaged to act as “underwriter” for the IDR Bond issuance. Id. ¶ 28. On February 16, 1996, the Crestón City Council published a “Notice of Intention to Issue Industrial Development Revenue Bonds,” in the Crestón News Advertiser. Def.’s App. at 459. The Notice stated that the IDR bonds would be “limited obligations and will not constitute general obligations of the issuer nor will they be payable in any manner by taxation, but the Bonds will be payable solely and only from amounts received by the Issuer under a Loan Agreement between the Issuer and the Company.” Id. The Notice further provided that a public hearing would be held on the issue on March 5, 1996. Id. On February 23, 1996, the Crestón News Advertiser also published a Public Notice, recounting that the Crestón City Council had “authoriz[ed] the execution of a Memorandum of Agreement with Crestland Cooperative and fixing a [hearing date] on the proposed issuance of [IDR] Bonds (Crestland Cooperative Project) and authorizing the Mayor and Clerk to execute the proper documentation.” Def.’s App. at 729. A similar “Notice of Intention to Issue [IDR] Bonds” appeared in the Crestón News Advertiser on February 12, 1997, and a similar “Public Notice” appeared on March 12, 1997. Id. at 678-79, 2490-91.

On March 6, 1996, the Crestón News Advertiser printed an article stating that while Crestón had approved a $10 million IDR bond issuance, Farmland had not yet decided whether to invest in the project. Def.’s Facts ¶ 38.

C. The County Becomes Involved

Union County did not have a prior relationship with Piper or with Oswald prior to the transactions at issue in this ease. Def.’s Facts ¶ 17. Union County had, however, participated in bond offerings, including the issuance of $500,000 in bond debt in 1982 and the refinancing and refunding of such bonds by General Obligation Notes in 1992. Id. ¶ 18. At the time of the 1992 issuance of General Obligation Notes, King, Bradley, Brown, and McLain were all on the County Board; Krings was the County Auditor, and Tim Kenyon was County Attorney. Id. ¶ 20. The 1992 General Obligation Note offering used Ruan Securities Corporation as underwriter, and Ahlers as bond counsel. Id. ¶ 19.

Despite its prior bond offerings, the Development Project was undisputably one of the largest public projects ever to take place in Union County. Id. ¶ 37. One component of the Development Project was that it created a need for improvements to infrastructure and roads surrounding the new plant. Id. ¶ 34. Such improvements could be made by employing Tax Increment Financing (“TIF”), which would permit a local government to charge Crestland/CF Processing for the improvements instead of making a general levy on all taxpayers. Id. While it appears that Crestón had originally intended to undertake TIF to finance the approximately $2.7 million in expected infrastructure improvements, in approximately February 1996, the City realized that TIF debt would count against its debt capacity, and would push Crestón very close to, if not over, its limit in that regard. Id. ¶ 39; Def.’s App. at 705. In response to this problem, Oswald suggested that an alternative would be to let Union County sponsor and TIF the infrastructure project instead of Crestón. Def.’s Facts ¶ 40.

Throughout 1996, numerous public meetings were held regarding the Development Project, its financing, and the possibility of employing TIF to aid in financing the project. Id. ¶ 42. Various Union County officials attended some of these meetings. See, e.g., Def.’s App. at 675 (evidencing that Krings attended a February 28, 1996 meeting); 676 (evidencing that Bradley attended a March 1, 1996 meeting); 677 (letter from Parker regarding a meeting to be held on September 11, 1996 with “ce” to Bradley, Kurt Greenfield (Union County Engineer), Krings, and Tim Kenyon); 708 (handwritten note from February 23, 1996 meeting indicating presence of King, Bradley, and Greenfield). Additionally, several articles were published in the Crestón News Advertiser regarding the Development Project and related financing. See, e.g., Def.’s App. at 2321-22 (February 7, 1996 article stating that Crestón City council “[ajpproved an Inducement resolution, beginning the process for up to $10 million in [IDR] bonds for a construction project at the Crestland Cooperative”); 487 (Mar. 6, 1996 article stating that “[a]pproval to work with [Crestón] on street improvements associated with development at Crestland Co-Op was accomplished by the Union County Board of Supervisors Monday” and discussing the TIF arrangement).

By the fall of 1996, Farmland had still not committed to investing in the Development Project. Def.’s Facts ¶ 41. Crest-land had indicated, though it is not clear to whom, that unless equity funding could be found, there would be no project. Id. ¶ 53; Def.’s App. at 1457. On August 1, 1996, Crestón issued the first of two “temporary” IDR bond issues, for $3.19 million, to be held in a “project fund” until a complete financing package could be arranged. Def.’s Facts ¶ 55. Also in August 1996, Crestón Finance Officer Joe Parker wrote a letter to Skip Kenyon attempting to orchestrate a meeting between the City, Crestland, and the County to discuss the possibility of Union County increasing its TIF bonding assistance to arrange for an “excess of funding that [could] be provided to [Crestland] as part of the package.” Id. ¶ 61. In the same month, McKinney, the County’s bond counsel, began billing his time to the County and traveled to Crestón to meet with the County on August 22, 1996. Id. ¶ 63. On approximately August 30, 1996, Ahlers attorney Mark Cory issued an opinion letter in connection with the closing of Creston’s “preliminary” IDR issue for the Development Project, stating that Ahlers had reviewed various relevant documents in connection with the bond issuance. Id. ¶ 64.

In October 1996, Oswald forwarded to the City, the County (via Krings), and Crestland a new estimated bond debt repayment schedule that assumed the County would issue bonds sufficient to make a $2.02 million cash grant to Crestland and pay for approximately $1.6 million in road improvements. Id. ¶ 65. The calculation contemplated a minimum property assessment valuation of $12 million for the TIF property in order to cover the projected debt service payments for the bonds to be issued. Id. On October 22, 1996, Krings scheduled a November 14, 1996 meeting to discuss the Development Project, and its proposed financing terms, with the City. Id. at 67. In anticipation of this meeting, Oswald sent a letter to the City, the County, and Crestland, wherein he enclosed a “draft description of the process” needed to complete the Development Project, and a draft “Tax Increment Bond Plan of Finance” (“Plan of Finance”). Id. ¶ 69. The Plan of Finance explained that the County and CF Processing needed to negotiate a Development Agreement, to be drafted by the County’s bond counsel, and also explained the underwriter’s role in selling the bonds:

[T]he County and CF Processing must begin to draft a development agreement. This agreement will call for CF to complete certain steps, and will require CF to agree to be assessed at $12 million .... This agreement will be drafted by the County’s bonding attorney.

Steps Necessary to sell the bonds While the above steps are being taken, the underwriter of the bonds will be drafting the bond offering documents, also known as the official statement. The underwriter will advise the county regarding the cost effectiveness of using credit ratings or other credit enhancements. The underwriter will begin working with potential investors to ensure that the bonds can be sold at attractive interest rates.

Once the 30-day period (from above) is complete, the underwriter can sell the bonds and commit to the interest rates. Closing on the bond issue will occur approximately 30 days after the bonds are sold. The underwriter will work with the County Treasurer’s office to ensure that the bond funds are appropriately invested until they are needed to fund the grant and public improvements.

Id. ¶ 70.

On November 18, 1996, the County Board held the first formal meeting at which the financial role of the County in the Development Project was discussed. Id. ¶ 71. While Crosser and Wynn were in attendance at the meeting, no representative from Piper was in attendance. Id. ¶ 73. At that meeting, King proposed a resolution to approve the Plan of Finance and to have a consulting firm, Simmering-Cory, begin drafting a Development Agreement. Id. ¶ 72. The next day, Bradley forwarded a draft description of the Development Project to Tom Simmering, and advised him that the County Board had authorized him to draw up a TIF plan. Id. ¶ 74. On December 3,1996, attorney Frank Pechacek began billing time to Union County for work and advice to the County Assessor, Paxton, in relation to the Development Project. Id. ¶ 75.

D. Interactions between Piper and the County

A County Board meeting was held on December 9, 1996 to discuss the planned County bond issuance and Piper’s involvement in it. Id. ¶ 77. Though Oswald had attended various other meetings in relation to the Development Project where County representatives were present, this was the first County Board meeting he attended. Id. According to the County, it was at this meeting that the County decided to retain Piper in connection with its part in the Development Project. Id. ¶ 78. County Board member King testified at deposition that he met Oswald for the first time at this meeting and that the following occurred:

I don’t remember which started the conversation, but we were told that the Crestland was looking at an expansion to build a soybean processing plant in Crestón inside the city limits. The city could not bond. They were against their bond debtedness, their limit, and that they needed help from the county. They told us about the project, what they were trying to do with money put into — value-added agriculture and, of course, that was a buzz word back then. And our board felt that that was — could be a worthwhile project.

Mr. Oswald was with them. And Mr. Oswald spoke and the individuals with him introduced him, said that he was a very good individual with — in representing the sales and financial end of taking care of that aspect.

I — in our conversation going through different scenarios, you know, just formalities, talking. And finally I posed the question sitting where this young lady’s at, I wasn’t sure that you’re — to Mr. Oswald — who do you work for. Well, I work for the county. If the county decides to go ahead with this project, I will be the county’s financial officer to do this project. And I believe I asked him if he was an attorney. And I can’t remember his answer. I think he said yes or no or whatever. It doesn’t make any difference, but he told me that he would lead us through this project and he definitely worked for the board of supervisors if we hired him because I said I don’t know. I got so many indians in here, I don’t know who you work for. And everybody laughed, but I remember I asked — making that comment like it was yesterday. And he looked me square in the eyeball and said I work for you....

Def.’s App. at 1501. The County asked Oswald to follow-up on this discussion by writing a letter to the County outlining Piper’s expected role in the project. Def.’s Facts ¶ 79. Though the minutes of the County Board meeting do not reveal any engagement of Piper at that meeting, King testified at deposition that he left the meeting believing that Piper had been engaged to act as the County’s financial ad-visor. See Pl.’s App. at 269 (King Dep.: Q. “And is it your testimony that you retained [Oswald] that day to be financial advisor and you understood what that term meant?” A. ‘Yes.” ... Q. “Did you have any discussion with the board members outside of Mr. Oswald’s presence about whether to hire him?” A. “No. It think it was pretty much decided in the boardroom that day.”).

One day later, on December 10, 1996, Oswald wrote the following letter to John McKinney of Ahlers Law Firm:

The Board of Supervisors have instructed us to begin working with you on the process to complete a development agreement and sell G.O. notes.

At their meeting on December 23, 1996, they wish to schedule a hearing on entering into a loan agreement and issuing not to exceed $4.50 million general obligation capital loan notes....

At the December 23 meeting, they would also like to schedule a hearing on the development agreement, holding that hearing on January 6 at 10:00 A.M. The development agreement will be between CF Processing L.C. and the County, and will call for a minimum assessment as of January 1, 1997 of $12 million. I’m not sure what other items you need for the agreement, so I’ll let you contact me.

Def.’s App. at 221.

On December 12, 1996, Oswald wrote the follow-up letter requested at the Board Meeting, addressed to Union County Attorney Tim Kenyon:

This letter is to outline our services to the county regarding the proposed issuance of TIF general obligation bonds. We will be assisting the County as the underwriter of the proposed debt.

• We will attend meetings and represent the county as requested, in all aspects of completion of the financing.

• We will assist the County in the creation and completion of a development agreement.

• We will review the development agreement and recommend areas of concern and suggested strategy.

• We will draft and prepare the offering documents for the securities to be offered.

• We will advise and assist in securing a municipal credit rating or credit enhancement insurance, if appropriate.

• We will make contact with Piper Jaffray’s investment executives to describe the securities offering.

• We will assist the County in investing the proceeds of any securities to be offered.

Our fees will be not greater than 2% of the issue amount, and will be payable only upon completion of the sale of securities.

As you are aware, we have been retained by the Developer to provide financing of the proposed project. We do not believe that this causes us a conflict of interest in assisting the county, however, because the only area of possible conflict is in the actual development agreement and the agreement is drafted and negotiated between the County’s attorney and the developer’s attorney. The underwriting of debt securities is a special and small portion of the overall project, and our services are to be limited to the structuring and sale of securities.

The Supervisors have requested that we assist in the development agreement to provide analysis of the proposed minimum assessment and timing of the minimum assessment, and in calculating the amount to be offered the developer.

We are comfortable with this responsibility and will covenant not to participate in assisting the developer in negotiating the agreement. As the above noted items are the major points of financial interest to the county or any municipality doing a similar type of agreement, these are the only items we would generally advise an issuer regarding. We are comfortable that the County will be adequately represented regarding financial matters.

Def.’s App. at 233-34. Tim Kenyon forwarded the letter to the County Board and to McKinney, but neither Tim Kenyon, the Board Members, nor McKinney ever asked any follow-up questions regarding the letter. Def.’s Facts ¶¶ 89-90.

E. Additional Happenings

On January 31, 1997, a consultation meeting was held regarding the creation of a TIF district, the County’s note issuance, and the City’s IDR issuance. Id. ¶ 91. Indeed, from early 1996 to October 6,1997, at least forty meetings were held regarding the Crestland expansion project, its financing, and the possible creation of a TIF district. Id. ¶ 100. On February 28, 1997, Oswald wrote to Mark Cory at Ahlers, wherein he stated it was his “understanding that you have been provided comments on the [Development Agreement for Union County] by the developer’s attorney.” Id. ¶ 101; Def.’s App. at 236. Oswald wrote that he had “not heard of those comments,” but was “assuming at this point that they are not substantive with respect to the security offered by the Coop or the County’s obligations.” Def.’s App. at 236. Oswald then laid out that the next step in the process was to hold a public hearing on the Development Agreement, stating, “Once the hearing has been held, it would be appropriate to approve and execute the development agreement.” Id.

In March 1997, the City sponsored a second temporary IDR issue for $4.81 million, for which Piper again prepared a Limited Offering Memorandum. Id. ¶ 92. The Limited Offering Memorandum was disclosed to Ahlers, made no reference to Farmland, and revealed that Piper was serving as underwriter for the IDR issue, that the equipment for the Development Project would be leased, that the Development Project would be “located on land owned by the Crestland Cooperative,” that the total project cost was $15 million, and that the source of funds for the project would come from the IDR issues, the equipment lease, and $2.5 million in “equity.” Id. Ahlers additionally received, reviewed, and commented on various drafts of the Official Statement to be issued with the City’s IDR Bond issue, some of which included financial information on Crest-land. Id. ¶ 93.

On May 5, 1997, Oswald and Crosser attended the County Board meeting and asked the County to make an additional “cash grant” to the Development Project of $2 million, to which the County agreed. Def.’s Facts ¶ 104. At the meeting, the County expressed that they would like to get all relevant materials at least one week in advance so that the documents could be reviewed. Id. ¶ 105. Oswald agreed to aid the County in this regard, and sent a letter to Cory and McKinney on May 5, 1997, wherein he stated that the County had “instructed us to begin the process of authorizing an additional cash grant to CF Processing ... in the amount of $2 million,” and additionally requested that full copies of all documents be sent to Tim Kenyon and Don Krings, and that Oswald also receive copies of documents so that he could put them into folders he was preparing for the County to permit them one week’s review. Def.’s App. at 263. Oswald did, in fact, make notebooks for each of the County Board members containing proceedings and information for their review. Def.’s Facts ¶ 106. On May 27, 1997, Union County approved an increase in the assessed valuation of the property from $12 million to $19 million, to cover repayment of the increased cash grant from Union County. Id. ¶ 123.

On June 2, 1997, Oswald distributed a “timeschedule” for the “Union County, Iowa Urban Renewal General Obligation Capital Loan Notes,” wherein he listed various dates, events, and responsible parties. Def.’s App. at 859. For June 9, 1997, the document listed “Execution of Development Agreement” with Responsible Parties “Board/Devel./Counsel.” Id. The same date listed “First draft of official statement available,” with Responsible Party “Underwriter.” Id. Responsible Parties were further defined as: 1) Counsel or Bond Counsel — Ahlers; 2) Underwriter — Piper; 3) Board — Board of Supervisors of Union County, Iowa; 4) Staff— Primarily Don Krings and Tim Kenyon; and 5) Developer — CF Processing, L.C. and Crestland Cooperative, Crestón, Iowa. Id. Consistent with the timetable, on June 9, 1997, Oswald forwarded a draft of the Official Statement to Ahlers and to Krings, who in turn distributed it to the Board Members. Defi’s Facts ¶ 108. The draft official statement included a provision stating that, “Historically, industrial machinery, equipment, and certain computer property has been taxed as real property at 30% of the net acquisition cost....” Id. ¶ 109. While the County denies that this was sufficient to notify them that certain equipment would be fully or partially exempt from taxation, it does not genuinely dispute that Paxton, the County assessor knew that there was a phase-out of taxation for industrial machinery and equipment. See Pl.’s Resp. to Def.’s Facts ¶¶ 109-10.

In July 1997, after reviewing a feasibility study and engineering report, First Bank Systems (“FBS”), Crestland’s Bank, agreed to expand Crestland’s financing and issue a Letter of Credit (“LOC”) for the City’s IDR bond issue, subject to various conditions. Def.’s Facts ¶ 111; Def.’s App. at 864-65. On July 17, 1997, Oswald sent a letter to the County Board stating that Crosser had received word from Crestland’s bank that “they would guaranty an issue of [IDR] bonds that will be used to fund the construction of the new soybean plant.” Def.’s App. at 287. Oswald stated that Piper “had asked [the County] to hold moving forward with the $4 million cash grant, the development agreement and the proposed bonding until [Crosser] could confirm that this piece of business had been completed.” Id. Oswald continued: “Now that it is moving forward, it is time to pick up your process and move it forward.” Id. Oswald noted that he had visited with Crosser “about completing the process with [Paxton] to allow for approval of the development agreement. I understand he is working with [Paxton] in this regard. We should try and have approval of this document as soon as all of the pieces are filled in.” Id. Oswald enclosed an updated timetable for completion of events, listing the same “Responsible Parties” as being responsible for various events, including a listing that the County Board, CF Processing, Crestland, and Ahlers were responsible for “Execution of the Development Agreement.” Id. at 289.

Mark Cory of Ahlers prepared and negotiated the Development and Minimum Assessment Agreements related to the County’s bond issuance and distributed them for comment and discussion to Amy Beattie, Crestland and CF Processing counsel, Frank Pechacek, and the County Attorney. Def.’s Facts ¶ 116. From February 6,1997, through October 6,1997, Ahlers prepared, revised, and circulated at least six drafts. Id. ¶ 122. Kenyon assisted Paxton in determining whether to sign the Minimum Assessment Agreement by compiling a list of needed items and by recommending to the County Board that Paxton and Crosser meet to discuss areas of concern; Paxton and Crosser did, in fact, meet to discuss issues relating to the Minimum Assessment Agreement. Id. ¶¶ 118-21. At some point, Paxton inquired of Pechaeek “what happens if the amount of levy drops such that the assessment agreement does not produce enough taxes to cover the local government outlay.” Def.’s Facts ¶ 125; Pl.’s Resp. to Def.’s Facts ¶ 125. Pechaeek advised Paxton that the Minimum Assessment Agreement could guarantee a minimum dollar amount of taxes the developer would have to pay, and further provided that if the funds paid to Union County from the tax assessment failed to cover the debt service, CF Processing was to pay the difference. Def.’s Facts il 126. Union County ultimately obtained an agreement by Crestland to guarantee CF Processing’s performance under the Development and Minimum Assessment Agreements. Id. ¶ 127. Pechaeek also advised Paxton regarding the requirements for determining whether the valuation was reasonable, not to sign the Assessor Certification of the Minimum Assessment Agreement until Paxton had reviewed the plans and specifications for the new plant, and not to finalize the certification without a legal survey of the property. Id. ¶ 130. Neither Tim Kenyon nor Paxton recall ever consulting with Oswald or with anyone from Piper in any respect in the course of preparing and negotiating the Development Agreement. Id. ¶ 136.

F. The County’s Bond Issuance

On October 6, 1997, Piper forwarded to the County a formal written proposal to underwrite Union County’s first bond issuance. Def.’s Facts ¶ 127; Def.’s App. at 313-14. On the same date, Tim Kenyon wrote to the County Board to state that he had reviewed “the final set of materials prepared by Mr. McKinney in connection with the Capital Loan Notes. If the Board chooses to go forward, we should closely follow the recommendations of bond counsel.” Def.’s Facts ¶ 140. In a second letter to the County Board on the same date, Tim Kenyon wrote that he had “reviewed the final draft of the Development Agreement” and that “[b]ased upon my review and examination of the final draft, I know of no legal objection to the execution of the document. As we have discussed, the final decision to proceed rests with the Union County Board of Supervisors.” Id. ¶ 142. At a County Board meeting also held on October 6, 1997, the County Board passed a resolution agreeing to accept Piper’s underwriting proposal and further authorizing the parties to negotiate and enter into a Loan Agreement between the County and Piper. Id. ¶ 143. The County Board further voted to enter into the Development and Minimum Assessment Agreement. Id. ¶ 144.

Thus, Union County, Crestón, CF Processing, and Crestland entered into a “Tax Increment Development Agreement” and “Minimum Assessment.” Pl.’s Facts ¶ 1; Def.’s App. at 361-81. Under the terms of the Development Agreement, Union County agreed to make “a grant to [CF Processing] in the amount of Four Million Dollars,” and to pay up to another $1.5 million for road improvements near the CF Processing plant, in exchange for CF Processing’s agreement to pay increased property taxes in an amount that would fully cover Union County’s debt service on bonds it was issuing in connection with the financing. Id. ¶¶ 2-3. Specifically, CF Processing agreed to be assessed at a minimum amount of $19 million. Def.’s Facts ¶ 146. CF Processing’s obligations under the Development Agreement were guaranteed by Crestland. PL’s Facts ¶ 4; Def.’s Facts ¶ 148. Pursuant to the terms of the Development Agreement, the County issued a total of $5,885 million in general obligation capital loan notes in 1997 and 1998 (the “Notes”) to provide the cash grant to CF Processing and to fund the road improvements, obligating the County to pay nearly $10.5 million in debt service over time. Id. ¶ 5. Though the County declined to purchase bond insurance for the 1997 Note issuance, it opted to do so for the 1998 Note issuance. Def.’s Facts ¶¶ 168-69. On May 29, 1998, Krings received a letter from the bond insurance carrier stating that the bond insurance policy would be delivered to Union County’s bond counsel. Id. ¶ 171. No other insurance was actually procured in relation to the Note issuances. Id. ¶ 172.

As agreed, Piper prepared Union County’s Official Statements for the 1997 and 1998 issuances of Notes. Id. ¶ 6. Regarding the Official Statement in relation to the 1997 Note issuance, totaling $4,325 million, Piper is listed in Appendix A, under the heading “Consultants,” as “Financial Consultant.” Def.’s App. at 326. The 1997 Official Statement, however, contains a heading labeled “Underwriting,” which provides, in part: “The Notes are being purchased, subject to certain conditions, by Piper Jaffray Inc., (the ‘Underwriter’). The Underwriter has agreed, subject to certain conditions, to purchase all, but not less than all, of the Notes at an aggregate purchase price of $4,216,875 plus accrued interest to the Closing Date.” Id. at 323. Piper maintains that it was erroneously listed as “Financial Consultant” in Appendix A of the 1997 Official Statement, but that the error was duly corrected in relation to the 1998 Note issuance, totaling $1.56 million. See Def.’s App. at 389-433. Indeed, in the 1998 Official Statement, Piper is listed in Appendix A, under the heading “Consultants,” as “Underwriter.” Def.’s App. at 397. As in the 1997 Official Statement, the 1998 Official Statement contains a heading labeled “Underwriting,” which provides nearly identical language to that contained in the previous version, save for a modified aggregate purchase price. Id. at 393.

G. Events Following the Note Issuances

The Development Project, operated by CF Processing, was constructed and completed on schedule and began soy processing operations in the Fall of 1998. Def.’s Facts ¶¶ 182, 184. The infrastructure improvements financed by the 1998 County note issuance were also completed. Id. ¶ 183. Following the closing of the 1998 Note issuance, the County had no further interaction, involvement with, or dealings of any kind with Oswald or with Piper. Def.’s Facts ¶ 180. Piper did, however, during 1998 and for a period thereafter, continue to provide investment banking services to Crestland. Id. ¶ 185. Such services included underwriting the issuance of an $8,835 million corporate bond by Crestland in August 1998, and underwriting the issuance of $2,510 million in corporate bonds by Crestland in 1999, which was used to increase Crestland’s working capital. Id. ¶ 186. Piper also continued to assist Crestland in seeking a new long-term bank financier and in obtaining equipment financing for CF Processing. Id.

Crestland reported a profit at the end of its 1997 fiscal year. Def.’s Facts ¶ 149. At the end of its 1998 fiscal year, Crest-land again reported a profit. Id. ¶ 179. On August 31, 1999, however, Crestland’s bank refused to finance any of the CF equipment purchase or installation costs, requesting that another lender be found. Id. ¶ 187. In late 1999, believing that April 1999 was the “low point” for fiscal year 1999, Crestland’s Bank, U.S. Bancorp Ag Credit did several things: it raised Crestland’s interest rate by 50 basis points; reduced its revolving line of credit from $25 million to $15 million; refused to provide Swine USA, another Crestland start-up, with any separate financing; required Crestland to try to sell yet another start-up, Livestock USA; told Crestland to continue efforts to place a new bond through Piper to replenish working capital; and declined to renew a $750,000 LOC listing subsidiary CCC as a beneficiary. Id. ¶ 188; Pl.’s Resp. to Def.’s Facts ¶ 188. The bank’s internal reports in 1999 noted that a combination of losses from the start-up of these companies and historically low soybean crushing margins and swine markets led to Crestland’s consolidated year to date loss. Def.’s Facts ¶ 189. The bank further noted that historically bad crush margins, weak export markets, and “sobering” declines in farm income (the lowest since the mid 1980s) were a further indicator of potential accounts receivable collection problems for Crestland in future months. Id. In February 2000, Crest-land’s CPA auditing firm resigned due to a disagreement with Crestland concerning representations to its members about financial performance. Id. ¶ 190. In August 2000, Crestland’s senior lender stopped lending to Crestland and Crest-land obtained Firstar as a lender. Id. ¶ 191. Also in August 2000, Piper advised Crestland that it must redeem the bonds from the City’s IDR bond issue because it had exceeded its $10 million capital improvement limit for keeping those bonds in tax-exempt status. Id. ¶ 192.

On September 26, 2001 Crestland filed for bankruptcy. Id. ¶ 193. In Crestland’s filings with the Bankruptcy Court, it stated:

In 1997 ... the Co-op decided to merge with [five other] local agricultural cooperative associations. During the following four years, the added debt service and operations expenses of expanding operations, coupled with low grain and soy bean prices, caused the Co-op to suffer considerable financial losses three out of the last four years. Since 1997 the Debtor has made ... approximately $13,100,000 in capital improvements [unrelated to the bean plant, and] ... approximately $22,000,000 in building and outfitting a soy processing facility [CF Processing].

Based on the aforementioned investments the two most significant impacts to the financial plight of the Debtor were its grain storage operations and its investment in the CF Processing facilities and operation. The Debtor’s investment in grain storage and handling facilities was never able to turn a profit for the Co-op’s members specifically because the Debtor was not able to secure an operating line of credit sufficient for such a large operation.... At 20 million bushels, the Debtor required, at a minimum, a $40,000,000 operating line of credit, just for its grain storage operations.

Because of restrictions placed on it by its primary secured creditor, U.S. Bank, N.A., who provided the Debtor with its operating line of credit, only made $15,000,000 to $20,000,000 at most available to the Debtor. Additionally, the $15-20 million dollar line of credit had to apply to all of the Debtor’s business operations, not just the Debtor’s grain storage operations. The limited nature of the Debtor’s operating line of credit effectively prevented the Debtor to carry grain for periods which would allow the Debtor to capture a larger margin and recoup a reasonable return on the Debtor’s grain storage investments. Another contributing factor to the Debt- or’s financial problems was its investment and operating of its CF Processing soy processing operations. CF Processing began soy processing operations in the fall of 1998. During the following 30 months, the Debtor suffered a complete loss for Seven (7) months, during which the facility ceased operations while a Flash Dissolvitizing System was added. During the Seven (7) months, the Debt- or received no return on its investment, and very little revenue was generated. Additionally, during this same 30 month period, the entire soy processing industry suffered by seeing the worst “crush margins” in the entire history of the crushing business.

Additional significant factors contributing to the Co-op’s financial problems included losses associated with the Debt- or’s investment in the Swine USA limited partnership before March 2001. Additionally, Crestland’s decision to start and maintain an investment in a Do It Best home center business in Crestón proved to be an additional financial burden, as that investment never turned a profit.... Finally, all of the above financial issues were significantly amplified by an ever expanding rumor mill, starting at approximately the end of February 2001.

Def.’s Facts ¶ 195.

On October 25, 2001, CF Processing also filed for bankruptcy. Id. ¶ 194. At no point prior to its bankruptcy did CF Processing ever indicate to Union County that it had any problem making its tax payments or was in any way suffering a hardship regarding them. Id. ¶ 198. Indeed, prior to its bankruptcy filing, CF Processing had, either on schedule or early, made three years of agreed-upon tax payments, totaling $1,977,661.54. Id. ¶ 197. On November 15, 2001, Union County filed a proof of claim in the CF Processing bankruptcy for $806,030 “yearly assessment on bond issue.” Id. ¶ 199. On the same date, Union County filed a proof of claim for $258,346 in taxes (which were unrelated to the taxes due from the CF Processing facility under the Minimum Assessment Agreement) in Crestland’s bankruptcy. Id. ¶ 200. In March 2002, the Bankruptcy Court approved the sale of Crestland’s real estate to DeBruce Grain for $6.5 million, “free of all liens and encumbrances, except those held by U.S. Bank, First Union, and other secured creditors.” Id. ¶ 201.

In November 2002, Union County opposed an attempt by CF Processing to convert its Chapter 11 bankruptcy into a Chapter 7 proceeding, asserting that continued operations of the CF Processing plant were “in the best interests of Union County and the residents and taxpayers of Union County, stating its willingness to consider amending the agreements to keep the operations going.” Id. ¶ 202. In April 2003, the CF Processing’s bankruptcy action was dismissed. Id. ¶ 203. In May 2003, Union County entered into a Standstill Agreement with CF Processing whereby it agreed to accept a fixed, lower payment of taxes than those required under the Minimum Assessment Agreement so that the company could keep operating. Id. ¶204. In exchange, the County was granted an option to purchase the equipment and company bonds for $5 million. Id. Other creditors agreed to forego their right to proceed against the leased plant equipment so that CF Processing could remain operational. Id. On May 29, 2003, Union County moved to amend its proof of claim in the Crestland bankruptcy to add $412,130 in taxes it claimed Crestland owed under the Minimum Assessment Agreement. Id. ¶205. The Bankruptcy Trustee objected to the amendment. Id. ¶206. Also in May 2003, the County sought to obtain a reassessment of the real property previously owned by Crestland (and now owned by DeBruce Grain), arguing that the assessor “failed to consider the increased value to the land resulting from the buildings and improvements to the value of the leasehold.” Id. ¶ 207. The County contended that the value set by the Minimum Assessment Agreement should be reapportioned 15% to the land (totaling $2.85 million) and 85% to the buildings and improvements. Id. ¶ 207. The County withdrew its attempt to reassess the real estate in June 2003, voting to restore the assessment on DeBruce’s property and the $19 million assessment on CF Processing’s facilities. Id. ¶ 209.

In July 2003, Union County passed a resolution to modify the Minimum Assessment Agreement and to abate certain back taxes, provided that the parties reach mutually acceptable terms for an Amended Minimum Assessment Agreement and that the County receive all tax payments owed through and including September 2003. Id. ¶ 210; Pl.’s Resp. to Def.’s Facts ¶ 210. In October 2003, Union County entered a Stipulation of Voluntary Settlement of Tax Protest whereby it agreed to assess DeBruce’s property at $13,830 and CF Processing’s property for the remainder of the $19 million. Def.’s Facts ¶ 211. In December 2003, DeBruce transferred its rights to the property described in the Development Agreement to Crestón Bean Processing, LLC via quitclaim deed. Id. ¶ 212. In February 2004, Union County entered into a settlement agreement, agreeing to settle its $2.11 million back tax claim against CF Processing for $500,000 so that CF Processing could be sold to Crestón Bean and remain an intact taxpaying entity in Union county. Id. ¶ 213. The County Board approved the agreement on February 4, 2004. Id. ¶ 215. In October 2006, the Bankruptcy Court denied Union County’s Motion to Amend, noting:

• The lawyers in the two bankruptcies never indicated they viewed the debt under the Minimum Assessment Agreement as being owed by both Crestland and CF Processing, and they only discussed the debt in the context of the CF Processing case.

• Crestland only became liable on CF Processing’s default and was therefore not liable for it at the time it filed for bankruptcy because Crestland filed first.

• Union County never sought to amend its proof of claim against Crestland until after CF Processing’s bankruptcy case was dismissed and the Court stated “it cannot be overlooked that Union County filed the motion for leave to amend Proof of Claim Number 844 only after it would have been certain that the CF Processing case had been dismissed.”

• The Court noted that Union County did not file any objection to dismissal of the CF Processing bankruptcy either.

• That while “the development agreement indicates the responsibilities of Crestland and CF Processing are joint and several, the contract also indicates Crestland agreed to that arrangement only upon default or breach of the agreement by CF Processing and only upon notice,” and this was not fair notice to Crestland that they intended to assert this claim.

Def.’s Facts ¶216. CF Processing remains operational today and continues to be one of Union County’s ten largest taxpayers. Id. ¶ 215.

II. STANDARD OF REVIEW

The term “summary judgment” is something of a misnomer. See D. Brock Hornby, Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring-2010). It “suggests a judicial process that is simple, abbreviated, and inexpensive,” while in reality, the process is complicated, time-consuming, and expensive. Id. at 273, 281. The complexity of the process, however, reflects the “complexity of law and life.” Id. at 281. “Since the constitutional right to jury trial is at stake,” judges must engage in a “paper-intensive and often tedious” process to “assiduously avoid deciding disputed facts or inferences” in a quest to determine whether a record contains genuine factual disputes that necessitate a trial. Id. at 281-82. Despite the seeming inaptness of the name, and the desire for some in the plaintiffs’ bar to be rid of it, the summary judgment process is well-accepted and appears “here to stay.” Id. at 281. Indeed, “judges are duty-bound to resolve legal disputes, no matter how close the call.” Id. at 287. Federal Rule of Civil Procedure 56(b) provides that “[a] party against whom relief is sought may move at any time ... for summary judgment on all or part of the claim.” “[Sjummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances.” Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir. 1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n. 5 (8th Cir.1975)). The purpose of summary judgment is not “to cut litigants off from their right of trial by jury if they really have issues to try.” Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)). Rather, it is designed to avoid “useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried.” Anderson v. Viking Pump Din, Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir.1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th Cir.1975)).

Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment upon motion after there has been adequate time for discovery. Summary judgment can be entered against a party if that party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriately granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). The Court does not weigh the evidence, nor does it make credibility determinations. The Court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wilson v. Myers, 823 F.2d 253, 256 (8th Cir.1987) (“Summary judgment is not designed to weed out dubious claims, but to ehminate those claims with no basis in material fact.”) (citing Weight Watchers of Quebec, Ltd. v. Weight Watchers Int’l, Inc., 398 F.Supp. 1047, 1055 (E.D.N.Y.1975)).

In a summary judgment motion, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed.R.Civ.P. 56(e)(2). This additional showing can be by affidavits, depositions, answers to interrogatories, or the admissions on file. Id.', Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505. “[T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. An issue is “genuine,” if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248, 106 S.Ct. 2505. “As to materiality, the substantive law will identify which facts are material.... Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

Courts do not treat summary judgment as if it were a paper trial. Therefore, a “district court’s role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe.” Waldridge v. Am. Hoechst Cow, 24 F.3d 918, 920 (7th Cir.1994). In a motion for summary judgment, the job of a court is only to decide, based on the evidentiary record that accompanies the moving and resistance filings of the parties, whether there really is any material dispute of fact that still requires a trial. See id. (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505 and 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2712 (3d ed. 1998)). It is the responsibility of the parties to provide the evidence necessary for this assessment. Id. at 921.

III. LAW AND ANALYSIS

A. Union County’s Claims

Union County argues that Piper clearly undertook to be the County’s financial ad-visor at the December 9, 1996 meeting, and that the December 12, 1996 letter from Piper to the County emphasized Piper’s agreement to undertake this role. According to the County, it thereafter relied on Piper, as its financial advisor to “ ‘recommend areas of concern’ on the Development Agreement and otherwise ‘represent’ and protect it with respect to ‘financial matters’ [] and to ‘raise red flags’ about any aspects of the financing that could negatively impact the County.” Pl.’s Br. at 10. The County contends that Piper woefully failed in that capacity, and made numerous affirmative misrepresentations to the County, and also failed to disclose certain relevant information.

Specifically, the County contends that Piper affirmatively “misrepresented” the following matters: 1) Piper told the County that an LOC was not available to secure CF Processing and Crestland’s debt service obligations under the Development Agreement, when an LOC was, in fact, available; 2) Piper told the County that a mortgage was not available to secure CF Processing and Crestland’s debt service obligations under the Development Agreement, when a mortgage was available; 3) Piper represented to the County, “through advising the County to proceed,” that Crestland’s guarantee of the CF Processing’s debt service was adequate protection for the County, even though Piper “was aware of Crestland’s weak finances and ‘lackluster financial performance’ ”; 4) the County “directed” Piper to secure insurance to guarantee CF Processing and Crestland’s debt service obligations, but Piper failed to do so; 5) Piper advised the County to proceed in executing the Development Agreement, despite knowledge by Piper that Crestland had unstable historical financial performance, that there was no insurance behind CF Processing and Crestland’s debt service obligations; and that the $19 million assessment was “high”; and 6) Piper advised the County that “I work for you” and disclaimed any conflict on providing financial advice to the County, despite knowing it had conflicts because it also represented CF Processing, Crestland, and the City. PL’s Br. at 22-23.

The County further contends that Piper failed to advise the County of the following relevant facts or information: 1) failed to disclose feasibility studies on CF Processing that were in Piper’s possession; 2) failed to disclose an appraisal showing that Crestland’s property was worth less than $6 million; 3) failed to reveal knowledge by Piper that the $19 million assessment was “high”; 4) failed to recommend an independent feasibility study and appraisal of the CF Processing project for the benefit of the County; 5) failed to disclose that the City of Crestón was participating in the financing of IDR bonds and information related thereto; 6) failed to reveal conflicts, such as representation of the City, CF Processing, and Crestland; 7) failed to protect the County’s interests by facilitating Crestland in incurring additional debt that competed with the debt owed to the County; 8) failed to advise that Farmland was not providing an equity investment in CF Processing; 9) failed to advise that Piper had rejected an LOC for the City’s IDR bond issuance, thereby freeing this source of security for the benefit of the County; and 10) failed to disclose that no insurance had been obtained to protect the County’s general obligation in case of default by CF Processing or Crestland. Id. at 23-24.

B. Elements of the Claims

1. Breach of fiduciary duty.

To sustain its claim for breach of fiduciary duty, the County bears the burden of proving: 1) the existence of a fiduciary relationship; 2) Piper breached a fiduciary duty to the County; 3) Piper’s breach of its fiduciary duty to the county was a proximate cause of damage to the County; and 4) the amount of damage. See Iowa Jury Ins. 3200.1.

2. Breach of contract.

To establish a claim for breach of contract, Union County must prove the following five elements:

(1) the existence of a contract; (2) the terms and conditions of the contract; (3) that [plaintiff] has performed all the terms and conditions required under the contract; (4) [that] defendant ] breach[ed] ... the contract in some particular way; and (5) that plaintiff has suffered damages as a result of the breach.

Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998) (citing Iowa-Illinois Gas & Elec. Co. v. Black & Veatch, 497 N.W.2d 821, 825 (Iowa 1993)).

3. Negligence.

“Negligence is generally defined as conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.” Knake v. King, 492 N.W.2d 416, 417 (Iowa 1992). Under Iowa law, the elements for a cause of action for negligence are: 1) the existence of a duty to conform to a standard of conduct for the protection of others; 2) the failure to conform to that standard; 3) proximate causation; and 4) damages. Hartig v. Francois, 562 N.W.2d 427, 429 (Iowa 1997) (citing Marcus v. Young, 538 N.W.2d 285, 288 (Iowa 1995), and W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 30 (5th ed. 1984)).

4. Negligent misrepresentation.

The Iowa Supreme Court has identified the following factors as requisites to success on a claim of negligent misrepresentation:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

(2) [T]he liability stated in Subsection (1) is limited to loss suffered

(a) by the person ... for whose benefit and guidance he intends to supply the information ...; and

(b) through reliance upon it in a transaction that he intends the information to influence....

Barske v. Rockwell Int’l Corp., 514 N.W.2d 917, 924 (Iowa 1994); see Iowa Civil Jury Inst. 800.1.

5. Fraud.

The elements for the tort of fraud are similar in many regards to the elements of negligent misrepresentation. A plaintiff seeking to hold a defendant liable for fraud must demonstrate: 1) a representation; 2) that the representation was false; 3) that the representation was material; 4) that the defendant knew the representation was false; 5) that the defendant intended to deceive the plaintiff; 6) that the plaintiff justifiably relied on the representation; and 7) that the representation was a proximate cause of plaintiffs damage. See Smidt v. Porter, 695 N.W.2d 9, 22 (Iowa 2005); see also Iowa Civil Jury Instr. 810.1.

C. Counts One through Five: Can Union County Demonstrate that Piper’s Actions or Omissions were the Proximate Cause of its Damages?

To generate a genuine issue of material fact on any of its five claims, Union County must present evidence that Piper’s alleged misrepresentations or omissions proximately caused Union County’s damages. Accordingly, since a determination of proximate causation impacts the sustainability of all of Plaintiffs claims, the Court addresses it first. In this case, Piper argues that Plaintiff cannot establish that Piper proximately caused Union county’s damages. Specifically, Piper contends that it did everything it was required to do. It “underwrote and helped issue the two County Notes without incident.” Def.’s Br. at 35. The County then made a cash grant to the Development Project, the bean plant was built, road improvements were made, CF Processing went into operation and “paid $1.9 million in agreed upon property taxes for three years before its parent, Crestland, filed for bankruptcy in September 2001.” Id. According to Piper, even assuming that it owed duties to “advise” the County with regard to the propriety of entering into the Development Agreement, the bankruptcies of Crestland and CF Processing constitute a superseding cause of the County’s damages, regardless of any claimed wrongful actions or inactions by Piper. Those bankruptcies were caused by factors entirely unforeseeable and outside the control of Piper, such as changes in agricultural markets, overexpansion, a tightening of credit, and other financial difficulties. Indeed, according to Piper, the premise of Union County’s causation argument is “itself illogical” in that “the County’s cause of action would still be available if the bean plant had paid its taxes for ten or fifteen years, instead of three, before failing.” Def.’s Br. at 37.

The County, on the other hand, argues that it “hired Piper to provide financial advice ... to ensure the protection of the County’s general obligation for debt service under the Development Agreement.” PL’s Br. at 52. “Had Piper do