Tag Archives: Miami

NEW BANKRUPTCY JUDGE – Scott M. Grossman has been Appointed as a Bankruptcy Judge for the Southern District of Florida

20130904_093101-1

MIAMI – Welcome to Scott M. Grossman, to the bench!  Scott M. Grossman is the first bankruptcy judge appointed to the United States Bankruptcy Court for the Southern District of Florida, Fort Lauderdale Division, since February 2006, when Judge John Olsen joined the Court.

Judge Grossman was appointed by the United States Court of Appeals for the Eleventh Circuit, which controls all the federal and bankruptcy courts in the State of Florida.  Judge Grossman was appointed as a Bankruptcy Judge for a fourteen-year term, effective today, October 2, 2019.  [Press Release to the announcement from the Chief Judge is available through this link: General Order 2019-03 re: Assignment of New Cases and Adversary Proceedings, and Reassignment of Pending Cases Upon Appointment of Bankruptcy Judge Scott M. Grossman.

Assouline & Berlowe SuperLawyers 2019

Layout 1

Eric N. Assouline, Esq. – Commercial Litigation and Bankruptcy Litigation Partner

 

Leave a comment

Filed under Appeals, Arbitration, Awards, Bankruptcy, BK, Business Litigation, commercial litigation, Copyright, Corporate Law, Intellectual Property, International, International Arbitration, IP Litigation, Judgments, Labor & Employment, labor and employment law, Litigation, New Bankruptcy Court Judge, Patent Prosecution, Real Estate, trademark, Uncategorized

Former U.S. Ambassador Discusses Technology & Miami as Global City

17342496_1208689185895819_5590382985365719749_n.jpg

Assouline & Berlowe Partner Peter E. Berlowe had the privilege of listening to firm friend Former U.S. Ambassador to Singapore Hon. Kirk Wagar speak last week at Pipeline Workspaces. Ambassador Wagar spoke about opportunities in South and Southeast Asia and how Miami can grow in to a truly global city.  In part, Ambassador Wagar discussed how driverless vehicles and related technology will begin to have far reaching implications for worldwide employment and economics over the next five to ten years.  Ambassador Wagar reflected upon the United States as the true world power, in part because of U.S. private business’ continued respect for business formalities and intellectual properties of the other countries in which they invest.  Pictured are Peter E. Berlowe, Hon. Kirk Wagar, and WLRN V.P. of News Tom Hudson.

For more information about the speech or related issues, please contact Mr. Berlowe at:

Peter E. Berlowe, Esq.

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: PEB@AssoulineBerlowe.com

http://www.AssoulineBerlowe.com/

Intellectual Property, Labor & Employment Law, Real Estate, International Dispute Resolution, Commercial Litigation, Corporate Law, and Bankruptcy

Miami • Ft. Lauderdale • Boca Raton

Leave a comment

Filed under Arbitration, Business Litigation, commercial litigation, Intellectual Property, International, Uncategorized

PANAMA PAPERS – Subpoena Issued to Mossack Fonseca Regarding Daddy Yankee Assets

Miami Attorneys Issued a Subpoena to Mossack Fonseca, of the Panama Papers, regarding Daddy Yankee Assetsassouliene-vielleville-berlowe-2
4/12/16- Eric Assouline, Daniel Vielleville, and Peter Berlowe, with ASSOULINE & BERLOWE, P.A., Miami – Picture from Daily Business Review Article 4-14-2016 By AM Holt

 Keeping the whereabouts of your assets is ok, except when . . .

This is a burning question that has surfaced in light of the Panama Papers.  When is it ok to have off shore accounts?  The simple answer is when you do not owe anyone any money and after you have paid all the taxes that are due on the assets that you wish to keep secret.   See recent article by Real Estate and Corporate Law Partner David Blattner: Have the Panama Papers Taught Us Anything We Didn’t Already Know?

You cannot maintain a secret web of companies, with the intention of hiding this information from creditors to whom you owe money.  That is illegal.

You cannot transfer assets that would be subject to execution by a creditor to an off shore, or out of state company, in order to not pay debts that you owe.  That is illegal.

This is the basis of the investigation that has been opened up as to all the public figures mentioned in the Panama Papers.  Including noted celebrity Daddy Yankee.

In today’s Daily Business Review, South Florida’s prominent daily business paper, one of the headline stories regards Assouline & Berlowe, P.A.’s subpoena issued to Mossack Fonseca, the Panamanian law firm that has gained notoriety for opening off shore accounts for high profile individuals all over the world.

Through their subpoena, Assouline & Berlowe, on behalf of their clients, creditors of Daddy Yankee, are seeking financial information from Mossack Fonseca as to Daddy Yankee’s assets and financial affairs.

A link to the complete article is: http://www.dailybusinessreview.com/home/id=1202754983211/Panama-Papers-Reports-Show-Daddy-Yankee-Might-Have-a-Way-to-Pay-Millions-Owed?mcode=1202617073880&curindex=2

For more information regarding this case, please contact Daniel E. Vielleville, Peter E. Berlowe, or Eric N. Assouline.

assouliene-vielleville-berlowe-2

/12/16- Eric Assouline, Daniel Vielleville, and Peter Berlowe, with ASSOULINE & BERLOWE, P.A., Miami – Photo by Daily Business Review Photographer AM Holt 

 

Leave a comment

Filed under Business Litigation, Daddy Yankee, Mossack Fonseca, panama papers, Uncategorized

Employment Law Update: Time to Review Employee Handbooks

Ellen LeibovitchOn March 18, 2015, the General Counsel for National Labor Relations Board released a report summarizing recent cases where policies in employee handbooks were found to violate Section 7 of the National Labor Relations Act (NLRA).

Section 7 gives employees the right to form unions and engage in other protected types of concerted activity.  Specifically, among other things, Section 7 allows employees to engage in the following activities:

  • The right to discuss wages, hours and other terms and conditions of employment with other employees and non-employees, including union representatives
  • The right to criticize or protest employer’s labor policies or treatment of employees
  • The right to argue and debate with other employees about unions, management and terms and conditions of employment
  • The right to communicate with the news media, government agencies and other third parties about wages, benefits and other terms and conditions of employment
  • The right to use the employer’s name and logo on picket signs, leaflets and other protest material
  • The right to photograph and make recordings in furtherance of protected concerted activities, including the right to use personal devices to take such pictures and recordings
  • The right to go on strike
  • The right to engage in concerted activity to improve the terms and conditions of employment, even if that activity is in conflict with the employer’s interests

In recent cases, the General Counsel determined that policies in employee handbooks were unlawful if employees would not reasonably understand the policy to prohibit a Section 7 protected activity.  In other words, if the policy is seen as restricting an employee’s Section 7 rights, it would be deemed unlawful under the NLRA.  The General Counsel’s report was intended to summarize these holdings and clarify the government’s position.

For example, a policy which requires the employee to keep the employer’s business information confidential and not to disclose such information about the business, customers, vendors and the like is lawful; but a policy which prohibits discussing wages, hours, workplace complaints and may be unlawful.  Similarly, a policy which requires employees to be “respectful of the company” may be construed to ban protected criticism or protests regarding supervisors, management or the company in general.  However, policies prohibiting serious misconduct, such a insubordination, threats and assault, would still be lawful.  General Counsel also determined that a policy prohibiting employees from speaking to the media about company matters unless authorized by the company to do so or requiring all media inquiries be directed to a designated company official was unlawful because employees reasonably would read such policy to ban protected (Section 7) communications with the media.

These are only a few of the many examples of the kinds of policies which the General Counsel found problematic.  Still, the line between what is lawful and what may be deemed unlawful is blurry at best and has, by this report, been made less clear.  Smart employers would benefit from having skilled employment counsel review their employee handbooks to ensure compliance under the NLRB’s newly-issued guidelines.

For a thorough review of your employer/employee handbooks and their compliance with the NLRB guidelines, please contact Ellen M. Leibovitch below.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Leave a comment

Filed under Business Litigation, Corporate Law, Florida Bar, Labor & Employment, labor and employment law

Miami partner Daniel E. Vielleville to speak at International Law Section’s ILAT Conference

International Law

The Florida Bar’s International Law Section is holding its annual International Litigation, Arbitration and Transaction (ILAT) Conference  on February 27, 2015.  Miami partner Daniel E. Vielleville, head of our Latin American Practice, will be speaking at the panel titled  “Arbitration in Energy and Infrastructure Disputes”. Mr. Vielleville’s presentation will be focused on developments in mining disputes and will review the impact of environmental regulation and natural resources nationalism in the recent Gold Reserve arbitral award against Venezuela as well as in current disputes such as Pacific Rim v. El Salvador, South American Silver v. Bolivia, Renco v. Peru, and Infinito v. Costa Rica.

The ILAT Conference’s program can accessed at this link:

http://internationallawsection.org/wp-content/uploads/2015/01/ILAT_Conference_Program_01.14.14.pdf

For more information about the conference or international law issues, please contact Mr. Vielleville at:

Daniel E. Vielleville, Esq.

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: DEV@AssoulineBerlowe.com

http://www.AssoulineBerlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Leave a comment

Filed under Arbitration, Business Litigation, International, International Arbitration

Litigation Partner Eric N. Assouline to Speak at Circuit Court Boot Camp CLE

Eric N. Assouline, Litigation Partner of The Business Law Firm Assouline & Berlowe, P.A., has been again invited to present as a panelist at the upcoming Circuit Court Boot Camp for Practical Trial Litigation Skills. 

Mr. Assouline has been involved in a wide range of business and commercial litigation.  At this seminar, he and other distinguished panelist, will share their experiences practicing in the state courts.

Learn tips of the trade from experienced members of the bar and bench about litigation skills. 

Circuit Court Boot Camp (4th Annual)

A Practical Trial Litigation Skills Program (Fort Lauderdale 2015)

April 10th, 2015 9:00 a.m. – 5:00 p.m. Sheraton Fort Lauderdale Airport & Cruise Port Hotel 1825 Griffin Road  Dania, FL 33004

Click here for more information or to register.

Can’t Attend? Click here to order the home study audio CD. Want the CD now?  Order the recording of our 2014 boot camp here

What you’ll learn when you attend:

  • Case Development & Theories
  • Motions for Summary Judgment/Adjudication
  • Other Motions
  • Discovery and E-Discovery
  • Depositions
  • Oral Arguments
  • Heading to Trial
  • Pre-Trial Matters
    • Bench trial pointers
    • Client and witness preparation
    • Jury selection – voir dire and questionnaires
    • Jury instructions and jury verdict forms
    • Opening trial briefs
    • Motions in Limine, motions to exclude witnesses from courtroom
    • Requests for Admissions of Fact
  • Trial Presentation
    • Opening statements
    • Direct and cross examinations
    • Objections
    • Exhibits
    • Expert witnesses and reports
    • Closing arguments
  • Post-Trial Motions

Full and partial scholarships are always available to legal aid firm attorneys.

We hope to see you there.

Best wishes,
Eric N. Assouline

Business Litigation

SuperLawyer Badge Red

ERIC N. ASSOULINE, ESQ.

Business Litigation Partner

ASSOULINE & BERLOWE, P.A.

213 E. Sheridan Street, Suite 3

Ft. Lauderdale – Dania, FL 33004

Telephone: 954-929-1899

Facsimile: 954-922-6662

Email: ena@assoulineberlowe.com

www.assoulineberlowe.com

cropped-00057556.jpg

Intellectual Property, Labor & Employment Law,  Real Estate, International Disputes, Commercial Litigation, Corporate Law, and Bankruptcy

Miami · Ft. Lauderdale · Boca Raton

Leave a comment

Filed under Business Litigation, Corporate Law, Labor & Employment, Real Estate, Trusts & Estates

Fountainebleau Las Vegas Bankruptcy is Not Finished

Bankruptcy Litigation

Today, nearly five years since the Fountainebleu Las Vegas bankruptcy was initially filed, at the height of the economic downturn and the crest of the real estate crisis, the Trustee Soneet Kapila filed two new adversary proceeding lawsuits seeking to recover alleged preferential transfers made to third parties by one of the debtors.  The two defendants that were sued in two separate preference actions are the internationally known company Honeywell International, Inc. and L.A. Nevada, Inc. dba G&G Systems.

Focusing on the L.A. Nevada, Inc. G & G Systems case, the Trustee was appointed in 2010 and according to the Complaint a demand for the return of the payment was made on March 4, 2011.

A copy of the demand letter is not attached, nor is any contract that establishes the basis upon which the payment to this vendor was made.

As with most of these cases, it is possible that one or more defenses may apply that may reduce, if not eliminate, the claim.  For example, there may be a Ordinary Course of Business Defense, which is when a debt is paid under ordinary terms that would be expected based upon the relationship of the parties.

Another defense that often comes up in these preferential transfer cases is New Value Defense, which states that if new value, either in the form of goods or services, was extended to the Debtor at the time that the payment was made, it may constitute a defense to all or part of the claim.

Either way, it is certain that this party is probably not happy to receive this lawsuit almost five years after the case was initially filed and almost three years after a demand for payment was made and apparently refused.

If you have a bankruptcy litigation question you would like answered, please do not hesitate to contact Eric N. Assouline.

00099212

ASSOULINE & BERLOWE – The BUSINESS LAW Firm

http://www.assoulineberlowe.com

With offices in Miami, Ft. Lauderdale, and Boca Raton

ERIC N. ASSOULINE, ESQ.

ASSOULINE & BERLOWE, P.A.

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami · Ft. Lauderdale · Boca Raton

Super Lawyers
Eric N. Assouline
Business Litigation

 

Leave a comment

Filed under Bankruptcy, Business Litigation

New Patent Attorney Joins Assouline & Berlowe

00095290  Assouline & Berlowe is pleased to announce that Greg M. Popowitz has joined the firm as an associate.  Mr. Popowitz concentrates his practice in Patent Prosecution, Intellectual Property, and Business Litigation. Mr. Popowitz will be working in the firm’s Ft. Lauderdale / Dania Beach Office.

Formerly with the Gunster Yoakley law firm, Mr. Popowitz has experience in patent litigation, patent applications, patentability searches and opinions, and mortgage backed securities litigation.

Mr. Popowitz graduated from Nova Southeastern University Law School in 2009, with Honors, where he served as the Managing Editor of the ILSA Journal of International & Comparative Law. Mr. Popowitz has an engineering degree from Georgia Institute of Technology (Georgia Tech) where he focused his studies on Mechanical Engineering.

Mr. Popowitz serves as President of the Georgia Tech Fort Lauderdale Alumni Network and regularly organizes and participates in football game watches, volunteer events, Presidents Scholarship Program interviews, and student meet & greets.

Prior to attending law school, Mr. Popowitz was a product engineer for Visteon Corporation, a former subsidiary of Ford Motor Company, where his work focused on the manufacturing and design of chassis components. Mr. Popowitz worked on current/forward model driveshaft design, durability and prototype testing, and travelled to customer assembly plants to meet with management.

Mr. Popowitz’s Areas of Practice at Assouline & Berlowe will consist of:
Intellectual Property & Patent Litigation
Business Litigation
Patent, Trademark, and Copyright Registration

Mr. Popowitz’s Bar Admissions are:
• State of Florida
• U.S. Patent & Trademark Office, Registered Patent Attorney
• U.S. District Court Southern District of Florida
• U.S. District Court Middle District of Florida
• U.S. District Court Northern District of Florida

Mr. Popowitz’s Education consists of:
Nova Southeastern University, Davie, FL, J.D.
Managing Editor: ILSA Journal of International and Comparative Law
Organizing Committee: Turning the Inside Out: A Conversation with George McGovern and John B. Anderson – How Lincoln Influenced Society, A Lincoln Bicentennial Event
Recipient: Center for Computer-Assisted Legal Instruction (CALI) Award for American Legal History Seminar

The Georgia Institute of Technology, Atlanta, GA, B.S. Mechanical Engineering Professional Associations and Memberships
• Broward Six Pillars – Task Force on Talent Supply & Education
• American Bar Association (ABA)
• Broward County Bar Association

Please welcome Mr. Popowitz to the firm.

Sincerely,

Eric N. Assouline, Esq.

Litigation Partner
Assouline & Berlowe, P.A.

For additional information:

In Miami: 305-567-5576

In Broward: 954-929-1899

In Palm Beach: 561-361-6566

ERIC N. ASSOULINE, ESQ.

ASSOULINE & BERLOWE, P.A.

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami · Ft. Lauderdale · Boca Raton

Leave a comment

Filed under Business Litigation, Intellectual Property

Patents and Miami – The Next Tech Hub

As the firm continues to build its base of hard IP talent, an interesting editorial was written by one of Miami’s favorite sons, Manny Medina.

The following editorial was published in the Miami Herald and addresses many of the main issues that Miami need to address in order for Mr. Medina to accomplish his goal of making Miami a Technology Center for the Americas.

Miami can be Latin America’s technology hub

BY MANUEL D. MEDINA

http://www.tfamericas.org

More than 500 of the top executives in South Florida were in the audience a year ago when I made the statement that was a sobering realization for a group that had convened to celebrate the great achievements the technology industry had enjoyed in the previous year. I myself cringed when I said bluntly, “Miami does NOT have tech.”

As someone with a deep, enduring love for Miami and the head of one of the few publicly traded technology companies in this community, nothing caused me more frustration over the years than the fact that our community has not been able to take advantage of our differentiators to elevate the IT sector to the level of economic staples like tourism, real estate and construction.

There have been some tremendous strides made to help foster a growing tech sector, but these efforts are just the beginning of what must be achieved to elevate South Florida in the context of the broader technology ecosystem.

Where we are today in technology mirrors the opportunity facing our community a decade ago when the organizers of Art Basel decided to launch the event here. For much of its history, Miami was never considered a major center for arts and culture. Yet today our community hosts tens of thousands of visitors every year for the premier art show in the Western Hemisphere. More importantly, Art Basel served as the catalyst that led to the development of an arts and culture industry that contributes millions of dollars and thousands of jobs to the local economy. If we can do the same thing in technology the impact will be truly game changing for South Florida.

The good news is that today we have the perfect opportunity to establish our region as the tech hub I know it can be. Our geography makes us the ideal bridge to connect Latin America and the world as the traditional large technology vendors chase growth in new emerging markets and highly skilled IT professionals with a strong entrepreneurial spirit from throughout the Americas look for opportunities to tap into the global marketplace. I firmly believe that if we act now, in a concerted and unified fashion, we can make Miami the center for technology innovation for the Americas.

In order to become a technology hub that compliments the mature ecosystems of Silicon Valley, Research Triangle, and London, there are four critical areas that we must advance.

First, we must enhance the world-class education our students are receiving by focusing on the areas that will drive technology-based employment opportunities in the 21st century. To do this we must instill a strong sense of curiosity in our children about how the technologies that convert 1’s and 0’s into the applications that make everything from mobile banking to angry birds flying across the screen possible.

Second, we must continue the momentum in nurturing the entrepreneurs and startups that have tremendous potential to be the next Facebook or Twitter. There are many intrepid young minds in our community that are working tirelessly to take their unique ideas and make them into thriving businesses. We need to continue providing the service that will accelerate their success.

Third, our community needs the institutional funding mechanism to finance these burgeoning companies so they don’t need to relocate to attract the financial resources needed to take their enterprises to the next stage. Access to capital beyond angel investments is critical to providing entrepreneurs with a clear path to business success without ever having to leave South Florida.

Finally, we have to retain the talented technology employees our universities are producing and bring back the thousands of sophisticated workers that have left Miami for greater opportunities in other areas of the world. Miami is one of the best places in the world to live, play and work — let’s make a concerted effort to keep the talent we’re nurturing so they can serve as the fuel that takes our economy to new heights.

To make this a reality, I am putting my money where my mouth is. Along with many of Miami’s community and business leaders, we have created the Technology Foundation of the Americas — a non-profit organization whose mission is to serve as the catalyst for establishing Miami as the technology hub for the Americas. Our foundation’s primary focus today is in launching the preeminent technology conference focused on emerging technologies impacting the Latin American market. Starting in May of 2014 this annual conference, eMerge Americas, will attract thousands of technology leaders from across the Americas to Miami to hear about the latest trends driving areas like cloud computing, cybersecurity and mobile applications; to meet with their peers, customers and partners; and to enjoy all the fun and entertainment our community has to offer.

To validate the immense impact we believe this conference can have on our local economy, we have commissioned an economic impact study that took a conservative approach and predicts the event has the potential to help bring approximately 17,000 additional jobs in the high tech and related industries over the next 10 years; generate $1.6 billion in growth to Miami-Dade County’s GDP from the eMerge Americas conference and the economic development impact directly tied to the event; and bring $2.4 billion in additional local sales over the first 10 years the conference is held.

This is a herculean effort that will require the hard work and support of the public and private institutions that are at the core of our community. With the help of key leaders and organizations throughout South Florida, we can effect the change needed to make sure that in the near future we can all say with conviction “Miami has tech!”

Manuel D. Medina is the founding and managing partner of Medina Capital. For more information about the Technology Foundation of the Americas, please visit http://www.tfamericas.org.

I hope to see you there.

Sincerely,

Eric N. Assouline, Esq.

Litigation Partner
Assouline & Berlowe, P.A.

For additional information:

In Miami: 305-567-5576

In Broward: 954-929-1899

In Palm Beach: 561-361-6566

ERIC N. ASSOULINE, ESQ.

ASSOULINE & BERLOWE, P.A.

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami · Ft. Lauderdale · Boca Raton

Leave a comment

Filed under Corporate Law, Intellectual Property, International Arbitration

Arbitration of Bankruptcy Issues

Bankruptcy Claims May be Arbitrated

A Compelling Arbitration Case: Court Grants Motion to Compel Arbitration for Both Bankruptcy and Non-Bankruptcy Issues

Laura Napoli on January 3, 2013 ·
Weil Gotshal & Manges, LLP Blog
In MicroBilt Corp. v. Fidelity National Information Services, Inc. (In re MicroBilt Corp.), No. 12-01167, 2012 WL 6137610 (Bankr. D.N.J. Dec. 11, 2012), the United States Bankruptcy Court for the District of New Jersey recently decided that certain claims, including claims relating to violation of the automatic stay, were subject to binding arbitration.

Background

MicroBilt provides online access to credit bureau data to small and medium sized businesses. MicroBilt had a longstanding contractual arrangement with Chex Systems, Inc., pursuant to which Chex sold financial information to MicroBilt, which then resold the information to credit unions, payday lenders, and car dealerships. In 2009, Chex and MicroBilt entered into a settlement to resolve a dispute that had arisen under the contract. As part of the settlement, the parties entered into a Resale Agreement.

Meanwhile, CL Verify, another credit information supplier, entered into a Data Reseller Agreement (“DRA”) with Certegy Ltd., a UK-based company. The DRA provided that Certegy would supply certain consumer credit card information exclusively to CL Verify, which CL Verify could then resell to its end users. In return, CL Verify agreed to pricing terms that were favorable to Certegy. Also around this time, CL Verify’s UK subsidiary, CLV UK, entered into an Independent Sales Organization Agreement (“ISO”) with Certegy, whereby Certegy agreed to market and develop CLV UK’s product within the United Kingdom. MicroBilt acquired CL Verify in 2010, and CL Verify assigned its assets, including the DRA and the ISO, to MicroBilt.

By late 2010, the relationship between Chex and MicroBilt had deteriorated again, and Chex asserted a series of defaults under the Resale Agreement. In March 2011, MicroBilt and CL Verify filed for chapter 11 relief. After the filings, Chex and its parent, Fidelity National Information Systems, Inc. (“FIS”), directed Certegy to end its support for CLV UK under the ISO. MicroBilt and CL Verify then commenced an adversary proceeding, alleging that FIS and Chex tortiously interfered with its existing and prospective contractual relationships. MicroBilt also alleged that FIS and Chex had violated the automatic stay provisions of the Bankruptcy Code through their postpetition actions. In response, Chex and Certegy sought to compel arbitration of the dispute, pointing to specific provisions in the Resale Agreement and the ISO, which required that any dispute arising out, of or relating to, the agreements be determined through alternative dispute resolution.

The Tortious Interference Claims

The court first focused on the tortious interference claims and found that all of those claims fell within the context of the arbitration clauses in the Resale Agreement, the ISO, and the DRA. Because the Federal Arbitration Act requires courts to compel arbitration when an agreement requires it, the court determined that it should defer to the arbitration provisions in the contracts and enforce arbitration.

The Stay Violation Claims

Turning next to the stay violation claims, the court found that, for these claims, the language of the underlying agreements was not helpful in determining whether the parties intended to include claims arising under the Bankruptcy Code in the arbitration provisions. Despite this, the court concluded that the mere fact that claims may arise under the Bankruptcy Code does not preclude them from being arbitrated. Instead, the court focused its inquiry into whether arbitration of the claims would interfere with or affect the distribution of the bankruptcy estate.

An examination of the facts led the court to conclude that arbitration would not result in interference with the estate because the disputed conduct (tortious interference with contract) did not allow Chex and FIS either to acquire possession or control over the debtors’ assets or to advance their own interests over those of other creditors. As evidence of this, the court noted that it had recently confirmed the debtors’ plan of reorganization, which provided for a 100% distribution to unsecured creditors and postpetition interest, as well as the assumption of all executory contracts. Finding no interference, the court noted that arbitration of the stay violation claims would not be inconsistent with the Bankruptcy Code’s goals and objectives, the bankruptcy court’s authority or the centralization of bankruptcy disputes. The court also stated that the stay violation claims were factually and legally linked with the tortious interference claims, lending additional support for the determination that the stay violation claims should be resolved with the tortious interference claims in arbitration.

The court’s decision in this case echoes the strong Third Circuit policy of resolving disputes via arbitration. Yet, not all courts may agree with this policy. For example, earlier this year we blogged about a decision where the Southern District of New York affirmed a holding of the bankruptcy court that concluded that the interests of the Bankruptcy Code outweighed those of the Federal Arbitration Act, at least when it comes to determinations regarding property of the estate. As courts continue to wrestle with the role arbitration clauses should play in bankruptcy issues, it will be interesting to see how the line will be drawn between the competing policy interests of the Bankruptcy Code and the Federal Arbitration Act.

There is support for this position in Florida bankruptcy courts. But there is little case law on the subject.
If you need assistance discussing business issues involving either arbitration or bankruptcy matters, call us.

ERIC N. ASSOULINE, ESQ.


ASSOULINE & BERLOWE, P.A.
http://www.assoulineberlowe.com

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami · Ft. Lauderdale · Boca Raton

Leave a comment

Filed under Bankruptcy, International Arbitration