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LLC Agreement at Defendants David Brannen, Guy A. Willem Noltes collectively, the "Individual Defendants" have a significant, albeit arguably indirect, interest in the Company. The following chart summarizes this corporate structure:. By , the Company did not have adequate working capital with which to cover past due payables, unpaid mortgage payments, and operating shortfalls.

The Individual Defendants did not answer these capital calls. The Individual Defendants appear to admit that the disbursements and charges occurred, but Defendants Brannen and Savage deny that they were "unauthorized" and Defendant Noltes asserts that he was not even aware of them. Thus, the focus of the Court's attention is on evidence supporting or contradicting GEBAM's assertion that the Individual Defendants engaged in unauthorized actions.

The Court begins by analyzing evidence of the alleged unauthorized disbursements and then separately considers the alleged over-allocated management costs and fees. First, while the audit materials show that disbursements occurred, GEBAM fails to direct the Court to any specific aspect of or items in these materials supporting its contention that the disbursements were unauthorized.

KPMG explains that because the amounts were due on demand and did not bear interest, KPMG categorizes these disbursements as "accounts receivable. However, the Individual Defendants deny that the disbursements were unauthorized. Bergeron Aff. Again, KPMG categorizes these loans as "accounts receivable" because the "amounts are due on demand and do not bear interest. The Individual Defendants admit that none of these loans were reduced to a note or other written obligation.

McGladrey then produced four Microsoft Excel files, each containing multiple spreadsheets with extensive data. The Court is not obligated to "scour the record" to find one. See Tomasini v. Sinai Med. In any case, the Court did review the McGladrey spreadsheets and found nothing addressing whether the disbursements were or were not authorized and, in fact, no obvious way to determine the total amount of disbursements. This was unsurprising. Although Ms. Bergeron was not involved in the Company at the time of the distributions Tr.

Bergeron provides only a sweeping citation to the audit materials, referencing no specific part supporting her characterization of the distributions as "unauthorized. See Pl. To support this, GEBAM relies on three things: 1 a statement in a telephone conference in this matter before the predecessor judge, Chief Judge Julie Carnes; 2 two exhibits introduced into evidence at the default judgment hearing on February 6, ; and 3 alleged admissions in two state court cases involving the Individual Defendants.

This evidence does not resolve the factual dispute as to whether the Individual Defendants assisted in any unauthorized transactions. For example, in the telephone conference with Judge Carnes, the Judge asked Defendants' counsel what their defense would be in this case.

Counsel responded that GE asset managers i. Counsel explained that the disbursements were "booked as loans from the company to the people who received the distribution, who are my clients. Upon questioning, Defendants' counsel agreed that the loans were not "in the interest of the Company. In one, a July 7, email to Brannen, Savage expressed concern about the distributions and acknowledged that he and Noltes "signed on all these docs with you.

This expression of concern, however, does not address whether GEBAM also approved of the transactions. And although the email suggests Noltes was previously aware of the disbursements, it does not constitute an admission of liability. The second exhibit is a September 27, email to a GE representative wherein Noltes asks for "12 months to restore the funds. However, in the same breath, Noltes asserts that all the disbursements "were posted on the balance sheet over the last 4 years with the full knowledge of GE and its auditors.

According to GEBAM, the "elaborate finger-pointing" in these actions somehow amounts to an admission of liability. To the extent GEBAM has referenced a specific portion of the record in these two state court cases, the Court has reviewed them and found no evidence of admissions of liability. For their part, the Individual Defendants chiefly rely on their word. Noltes Aff. Thus, a conflict of evidence exists as to whether the Individual Defendants each participated in unauthorized disbursements.

Again, GEBAM fails to reference where in the report this fact is "revealed," and the Court did not find it on its own. However, Defendants Brannen and Savage have produced an email from a GE employee, dated November 21, , approving this higher percentage amount.

Brannen is the only defendant who has filed a cross-motion for summary judgment. However, the Court will consider granting, sua sponte, summary judgment in favor of the other Individual Defendants on the veil-piercing claim because GEBAM has filed a summary judgment motion addressing the same issues upon which the Court makes its determination. See Flood v. City of Belle Glade, F. Considering that GEBAM has also defended itself against Brannen's motion for summary judgment, the Court determines that GEBAM has had an adequate opportunity to demonstrate why summary judgment should not be granted in the Individual Defendants' favor on the veil-piercing claim.

See Burton, F. To state a claim for aiding and abetting a breach of fiduciary duty, a plaintiff must show: " 1 the existence of a fiduciary relationship; 2 the fiduciary breached its duty; 3 a defendant, who is not a fiduciary, knowingly participated in the breach; and 4 damages to the plaintiff resulted from the concerted action of the fiduciary and the nonfiduciary.

Blum, No. Townson, A. The parties do not dispute this. Brannen's Resp. The Court must next consider whether IRS breached this duty and whether the Individual Defendants knowingly participated in this breach. Goldman Sachs Credit Partners L. Cuccia, No. May 14, Even if a self-interested transaction occurred, an informed party who approves of the transaction cannot later claim the transaction is unfair. Tobin, F. GEBAM has sufficiently established self-interested transactions occurred, although the contours of such transactions remain unclear.

Uncontroverted evidence shows that the Company made interest free loans to an IRS affiliate and at least one of the Individual Defendants. In addition, IRS paid more than the contractually allowed percentage for property management to a company affiliated with IRS.

This appropriation of Company resources for its own benefit, and the benefit of IRS's affiliates, is a "classic example of self-dealing. However, GEBAM has failed to address and resolve all factual disputes regarding the fairness of these transactions. See also Dwight, F. Instead, GEBAM only challenges the Individual Defendants' position factually, arguing that there is insufficient evidence of the authorization.

This is not so. As discussed above, Defendants Savage and Brannen swear in affidavits that GEBAM approved the relevant transactions and state at least some factual basis for this assertion. Savage's Resp. Their position is also consistent with what they have been saying since this dispute arose.

Savage Resp. RFA Doc. They have simply failed to make their case on summary judgment, leaving a genuine issue of fact as to whether GEBAM authorized the transactions with full knowledge, and thus whether the transactions were unfair. GEBAM responds by arguing that the Individual Defendants cannot rely on their own "self-serving" affidavits in challenging its summary judgment motion. England, F. This is also not so. As the Eleventh Circuit recently explained, "[A] case should be put to the jury if there is any genuine issue of material fact, including one created solely by the testimony of a party.

City of Miami Beach, et al. In Feliciano, the Eleventh Circuit recognized that summary judgment may be appropriate where the nonmovant relies on conclusory assertions based entirely on subjective belief. On the other hand, non-conclusory, objective accounts of events may create a genuine issue of fact and thus preclude the entry of summary judgment. This testimony is neither conclusory nor subjective. The contradiction between GEBAM's position and the Individual Defendants' regarding authorization is "a classic swearing match, which is the stuff of which jury trials are made.

Thus, this testimony is sufficient to create a genuine issue of fact as to whether GEBAM authorized the disbursements. First, it is inappropriate for the Court to test the veracity of a witness's testimony on summary judgment. Feliciano, F. Harget, F. The Court must focus on only the evidence that is clear: evidence that the Company made several interest-free loans to certain Individual Defendants or their affiliates.

Moreover, it is not inherently illogical for business partners to provide interest-free loans to one another. Contrary to Defendant Brannen's arguments, the same deficiencies afflicting GEBAM on the issue of authorization will pose challenges to the Individual Defendants at trial.

They have yet to bring forth testimony from a GEBAM employee confirming the authorization of the transactions at issue. Moreover, when a jury hears the accusations the Individual Defendants have lodged against one another in other cases, their attestations of innocence — upon which they substantially rely — will no doubt lose credibility. This factual dispute regarding GEBAM's authorization also creates a question as to whether any of the Individual Defendants "knowingly participated" in the breach.

To prove that a defendant has "knowingly participated" in a breach of fiduciary duty, a plaintiff must show that "the third party act[ed] with the knowledge that the conduct advocated or assisted constitute[d] such a breach. Thus, merely showing that the non-fiduciary knew certain actions occurred is insufficient. Rather, to support an aiding and abetting claim, a plaintiff must also show that the nonfiduciary knew the actions were a breach of a fiduciary duty. Turner, A.

Here, however, as previously discussed a question of fact remains as to whether the Individual Defendants knew that IRS's disbursements or payment of management fees was a breach of a fiduciary duty. And Noltes swears he was unaware of the transactions entirely. A reasonable jury could conclude that all three Defendants knowingly participated in the breach, but based on their testimony, a reasonable jury could also conclude otherwise: that the Individual Defendants believed that, by seeking and obtaining GEBAM's approval, IRS did not breach its fiduciary duties to GEBAM.

For the foregoing reasons, the Court determines that a genuine issue of fact exists as to whether IRS breached its fiduciary duty to GEBAM and whether the Individual Defendants knowingly participated in this breach. This veil-piercing claim rests on a finding that IRS was a "sham and exist[ed] for no other purpose than as a vehicle for fraud. S'holder Litigation, A. Wood, A. Green Farms, Inc.

Alden, No. July 14, To prevail on a veil-piercing claim, Plaintiff must prove fraud or injustice that goes beyond the alleged wrong in the Complaint and "relate[s] to a misuse of the corporate structure. March 4, As the Court has previously noted, this is a high bar to overcome. Delaware courts consider several factors when assessing whether to allow piercing of the corporate veil, including: 1 the failure to keep standard corporate records; 2 the failure to observe corporate formalities; 3 undercapitalization at the corporation's formation; 4 insolvency; 5 exclusive domination and control over the company by the individual; and 6 "whether the dominant shareholder siphoned corporate funds.

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KLT INVESTMENTS

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AUREUS AFRICA FUND ABRAAJ INVESTMENT

Henkel Consumer Adhesives, Inc. This case involves a real estate investment venture that succumbed to internal conflict arising from the managing member's alleged self-dealing and cavalier disregard for its contractual and fiduciary duties. See id. However, for certain "Major Decisions" defined by the LLC Agreement including sale or mortgaging of assets, expenditure not included in the Operating Budget, approving property management companies, and "outside acts" not within the business purpose of the company , IRS was required to obtain GEBAM's approval.

The agreement defined the Capital Sharing Ratio as the "percentages in which the Members participate in, and bear, certain Company items. LLC Agreement at Defendants David Brannen, Guy A. Willem Noltes collectively, the "Individual Defendants" have a significant, albeit arguably indirect, interest in the Company.

The following chart summarizes this corporate structure:. By , the Company did not have adequate working capital with which to cover past due payables, unpaid mortgage payments, and operating shortfalls. The Individual Defendants did not answer these capital calls. The Individual Defendants appear to admit that the disbursements and charges occurred, but Defendants Brannen and Savage deny that they were "unauthorized" and Defendant Noltes asserts that he was not even aware of them.

Thus, the focus of the Court's attention is on evidence supporting or contradicting GEBAM's assertion that the Individual Defendants engaged in unauthorized actions. The Court begins by analyzing evidence of the alleged unauthorized disbursements and then separately considers the alleged over-allocated management costs and fees. First, while the audit materials show that disbursements occurred, GEBAM fails to direct the Court to any specific aspect of or items in these materials supporting its contention that the disbursements were unauthorized.

KPMG explains that because the amounts were due on demand and did not bear interest, KPMG categorizes these disbursements as "accounts receivable. However, the Individual Defendants deny that the disbursements were unauthorized. Bergeron Aff. Again, KPMG categorizes these loans as "accounts receivable" because the "amounts are due on demand and do not bear interest.

The Individual Defendants admit that none of these loans were reduced to a note or other written obligation. McGladrey then produced four Microsoft Excel files, each containing multiple spreadsheets with extensive data. The Court is not obligated to "scour the record" to find one.

See Tomasini v. Sinai Med. In any case, the Court did review the McGladrey spreadsheets and found nothing addressing whether the disbursements were or were not authorized and, in fact, no obvious way to determine the total amount of disbursements. This was unsurprising. Although Ms. Bergeron was not involved in the Company at the time of the distributions Tr. Bergeron provides only a sweeping citation to the audit materials, referencing no specific part supporting her characterization of the distributions as "unauthorized.

See Pl. To support this, GEBAM relies on three things: 1 a statement in a telephone conference in this matter before the predecessor judge, Chief Judge Julie Carnes; 2 two exhibits introduced into evidence at the default judgment hearing on February 6, ; and 3 alleged admissions in two state court cases involving the Individual Defendants.

This evidence does not resolve the factual dispute as to whether the Individual Defendants assisted in any unauthorized transactions. For example, in the telephone conference with Judge Carnes, the Judge asked Defendants' counsel what their defense would be in this case.

Counsel responded that GE asset managers i. Counsel explained that the disbursements were "booked as loans from the company to the people who received the distribution, who are my clients. Upon questioning, Defendants' counsel agreed that the loans were not "in the interest of the Company. In one, a July 7, email to Brannen, Savage expressed concern about the distributions and acknowledged that he and Noltes "signed on all these docs with you.

This expression of concern, however, does not address whether GEBAM also approved of the transactions. And although the email suggests Noltes was previously aware of the disbursements, it does not constitute an admission of liability. The second exhibit is a September 27, email to a GE representative wherein Noltes asks for "12 months to restore the funds.

However, in the same breath, Noltes asserts that all the disbursements "were posted on the balance sheet over the last 4 years with the full knowledge of GE and its auditors. According to GEBAM, the "elaborate finger-pointing" in these actions somehow amounts to an admission of liability. To the extent GEBAM has referenced a specific portion of the record in these two state court cases, the Court has reviewed them and found no evidence of admissions of liability.

For their part, the Individual Defendants chiefly rely on their word. Noltes Aff. Thus, a conflict of evidence exists as to whether the Individual Defendants each participated in unauthorized disbursements. Again, GEBAM fails to reference where in the report this fact is "revealed," and the Court did not find it on its own. However, Defendants Brannen and Savage have produced an email from a GE employee, dated November 21, , approving this higher percentage amount.

Brannen is the only defendant who has filed a cross-motion for summary judgment. However, the Court will consider granting, sua sponte, summary judgment in favor of the other Individual Defendants on the veil-piercing claim because GEBAM has filed a summary judgment motion addressing the same issues upon which the Court makes its determination.

See Flood v. City of Belle Glade, F. Considering that GEBAM has also defended itself against Brannen's motion for summary judgment, the Court determines that GEBAM has had an adequate opportunity to demonstrate why summary judgment should not be granted in the Individual Defendants' favor on the veil-piercing claim. See Burton, F. To state a claim for aiding and abetting a breach of fiduciary duty, a plaintiff must show: " 1 the existence of a fiduciary relationship; 2 the fiduciary breached its duty; 3 a defendant, who is not a fiduciary, knowingly participated in the breach; and 4 damages to the plaintiff resulted from the concerted action of the fiduciary and the nonfiduciary.

Blum, No. Townson, A. The parties do not dispute this. Brannen's Resp. The Court must next consider whether IRS breached this duty and whether the Individual Defendants knowingly participated in this breach. Goldman Sachs Credit Partners L. Cuccia, No. May 14, Even if a self-interested transaction occurred, an informed party who approves of the transaction cannot later claim the transaction is unfair. Tobin, F. GEBAM has sufficiently established self-interested transactions occurred, although the contours of such transactions remain unclear.

Uncontroverted evidence shows that the Company made interest free loans to an IRS affiliate and at least one of the Individual Defendants. In addition, IRS paid more than the contractually allowed percentage for property management to a company affiliated with IRS. This appropriation of Company resources for its own benefit, and the benefit of IRS's affiliates, is a "classic example of self-dealing. However, GEBAM has failed to address and resolve all factual disputes regarding the fairness of these transactions.

See also Dwight, F. Instead, GEBAM only challenges the Individual Defendants' position factually, arguing that there is insufficient evidence of the authorization. This is not so. As discussed above, Defendants Savage and Brannen swear in affidavits that GEBAM approved the relevant transactions and state at least some factual basis for this assertion.

Savage's Resp. Their position is also consistent with what they have been saying since this dispute arose. Savage Resp. RFA Doc. They have simply failed to make their case on summary judgment, leaving a genuine issue of fact as to whether GEBAM authorized the transactions with full knowledge, and thus whether the transactions were unfair. GEBAM responds by arguing that the Individual Defendants cannot rely on their own "self-serving" affidavits in challenging its summary judgment motion.

England, F. This is also not so. As the Eleventh Circuit recently explained, "[A] case should be put to the jury if there is any genuine issue of material fact, including one created solely by the testimony of a party. City of Miami Beach, et al. In Feliciano, the Eleventh Circuit recognized that summary judgment may be appropriate where the nonmovant relies on conclusory assertions based entirely on subjective belief. On the other hand, non-conclusory, objective accounts of events may create a genuine issue of fact and thus preclude the entry of summary judgment.

This testimony is neither conclusory nor subjective. The contradiction between GEBAM's position and the Individual Defendants' regarding authorization is "a classic swearing match, which is the stuff of which jury trials are made. Thus, this testimony is sufficient to create a genuine issue of fact as to whether GEBAM authorized the disbursements. First, it is inappropriate for the Court to test the veracity of a witness's testimony on summary judgment.

Feliciano, F. Harget, F. The Court must focus on only the evidence that is clear: evidence that the Company made several interest-free loans to certain Individual Defendants or their affiliates. Moreover, it is not inherently illogical for business partners to provide interest-free loans to one another. Contrary to Defendant Brannen's arguments, the same deficiencies afflicting GEBAM on the issue of authorization will pose challenges to the Individual Defendants at trial.

They have yet to bring forth testimony from a GEBAM employee confirming the authorization of the transactions at issue. Moreover, when a jury hears the accusations the Individual Defendants have lodged against one another in other cases, their attestations of innocence — upon which they substantially rely — will no doubt lose credibility.

This factual dispute regarding GEBAM's authorization also creates a question as to whether any of the Individual Defendants "knowingly participated" in the breach. To prove that a defendant has "knowingly participated" in a breach of fiduciary duty, a plaintiff must show that "the third party act[ed] with the knowledge that the conduct advocated or assisted constitute[d] such a breach.

Thus, merely showing that the non-fiduciary knew certain actions occurred is insufficient. Rather, to support an aiding and abetting claim, a plaintiff must also show that the nonfiduciary knew the actions were a breach of a fiduciary duty.

Turner, A. Here, however, as previously discussed a question of fact remains as to whether the Individual Defendants knew that IRS's disbursements or payment of management fees was a breach of a fiduciary duty. And Noltes swears he was unaware of the transactions entirely. A reasonable jury could conclude that all three Defendants knowingly participated in the breach, but based on their testimony, a reasonable jury could also conclude otherwise: that the Individual Defendants believed that, by seeking and obtaining GEBAM's approval, IRS did not breach its fiduciary duties to GEBAM.

For the foregoing reasons, the Court determines that a genuine issue of fact exists as to whether IRS breached its fiduciary duty to GEBAM and whether the Individual Defendants knowingly participated in this breach. This veil-piercing claim rests on a finding that IRS was a "sham and exist[ed] for no other purpose than as a vehicle for fraud. S'holder Litigation, A. Wood, A. Green Farms, Inc. Alden, No.

July 14, To prevail on a veil-piercing claim, Plaintiff must prove fraud or injustice that goes beyond the alleged wrong in the Complaint and "relate[s] to a misuse of the corporate structure. C, Birmingham, AL Need to file a complaint? BBB is here to help. What do you think? Be the first to review! BBB Business Profiles may not be reproduced for sales or promotional purposes. BBB Business Profiles are provided solely to assist you in exercising your own best judgment.

However, BBB does not verify the accuracy of information provided by third parties, and does not guarantee the accuracy of any information in Business Profiles. When considering complaint information, please take into account the company's size and volume of transactions, and understand that the nature of complaints and a firm's responses to them are often more important than the number of complaints.

BBB Business Profiles generally cover a three-year reporting period. BBB Business Profiles are subject to change at any time. As a matter of policy, BBB does not endorse any product, service or business. BBB reports on known marketplace practices. C Birmingham, AL Contact Information. Customer Reviews. Customer Complaints. Business Details.

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Please check out resources available to you at BBB. Some of the sources of information BBB relies on are temporarily unavailable. Also, many businesses are closed, suspended, or not operating as usual, and are unable to respond to complaints and other requests. BBB information and Business Profiles reflect the most current information available to us. We appreciate your patience as we and everyone in our communities focus on addressing this crisis. Business Profile. Reasons for BBB Rating. C, Birmingham, AL Need to file a complaint?

BBB is here to help. What do you think? Be the first to review! BBB Business Profiles may not be reproduced for sales or promotional purposes. BBB Business Profiles are provided solely to assist you in exercising your own best judgment.

However, BBB does not verify the accuracy of information provided by third parties, and does not guarantee the accuracy of any information in Business Profiles. When considering complaint information, please take into account the company's size and volume of transactions, and understand that the nature of complaints and a firm's responses to them are often more important than the number of complaints. BBB Business Profiles generally cover a three-year reporting period. BBB Business Profiles are subject to change at any time.

The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Zenith Radio Corp. Summary judgment is appropriate when the non-movant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Catrett, U. BP Oil Co. The substantive law governing the action determines whether an element is essential. Anderson v. Liberty Lobby, Inc. Washington Mills Abrasive Co. The burden then shifts to the non-movant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the non-movant's case. Thompson v. Metropolitan Multi-List, Inc. Italian Activewear of Fla. However, if the nonmoving party's response to the summary judgment motion consists of nothing more than mere conclusory allegations, then the court must enter summary judgment in the moving party's favor.

Peppers v. Coates, F. Jarrard, F. In assessing whether the movant is entitled to summary judgment in its favor, the district court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmoving party. Welch v. Celotex Corp. First Am. Bank, F. The Court must avoid weighing conflicting evidence. Liberty Lobby, U. Davenport-Harris Funeral Home, F. A mere "scintilla" of evidence supporting the opposing party's position, however, will not suffice.

See, e. Darby, F. Nevertheless, where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment. Brierton, F. The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed.

Bankers Ins. Group v. United States, F. The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. The Eleventh Circuit has explained that "[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.

Oakley, F. Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts. This statement of facts does not represent actual findings of fact. In re Celotex Corp. Instead, the Court has provided the statement simply to place the Court's legal analysis in the context of this particular case or controversy.

In addition, as noted above, when deciding a motion for summary judgment, the Court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. See Optimum Techs. Henkel Consumer Adhesives, Inc. This case involves a real estate investment venture that succumbed to internal conflict arising from the managing member's alleged self-dealing and cavalier disregard for its contractual and fiduciary duties.

See id. However, for certain "Major Decisions" defined by the LLC Agreement including sale or mortgaging of assets, expenditure not included in the Operating Budget, approving property management companies, and "outside acts" not within the business purpose of the company , IRS was required to obtain GEBAM's approval. The agreement defined the Capital Sharing Ratio as the "percentages in which the Members participate in, and bear, certain Company items.

LLC Agreement at Defendants David Brannen, Guy A. Willem Noltes collectively, the "Individual Defendants" have a significant, albeit arguably indirect, interest in the Company. The following chart summarizes this corporate structure:. By , the Company did not have adequate working capital with which to cover past due payables, unpaid mortgage payments, and operating shortfalls. The Individual Defendants did not answer these capital calls. The Individual Defendants appear to admit that the disbursements and charges occurred, but Defendants Brannen and Savage deny that they were "unauthorized" and Defendant Noltes asserts that he was not even aware of them.

Thus, the focus of the Court's attention is on evidence supporting or contradicting GEBAM's assertion that the Individual Defendants engaged in unauthorized actions. The Court begins by analyzing evidence of the alleged unauthorized disbursements and then separately considers the alleged over-allocated management costs and fees. First, while the audit materials show that disbursements occurred, GEBAM fails to direct the Court to any specific aspect of or items in these materials supporting its contention that the disbursements were unauthorized.

KPMG explains that because the amounts were due on demand and did not bear interest, KPMG categorizes these disbursements as "accounts receivable. However, the Individual Defendants deny that the disbursements were unauthorized. Bergeron Aff. Again, KPMG categorizes these loans as "accounts receivable" because the "amounts are due on demand and do not bear interest. The Individual Defendants admit that none of these loans were reduced to a note or other written obligation.

McGladrey then produced four Microsoft Excel files, each containing multiple spreadsheets with extensive data. The Court is not obligated to "scour the record" to find one. See Tomasini v. Sinai Med. In any case, the Court did review the McGladrey spreadsheets and found nothing addressing whether the disbursements were or were not authorized and, in fact, no obvious way to determine the total amount of disbursements.

This was unsurprising. Although Ms. Bergeron was not involved in the Company at the time of the distributions Tr. Bergeron provides only a sweeping citation to the audit materials, referencing no specific part supporting her characterization of the distributions as "unauthorized. See Pl. To support this, GEBAM relies on three things: 1 a statement in a telephone conference in this matter before the predecessor judge, Chief Judge Julie Carnes; 2 two exhibits introduced into evidence at the default judgment hearing on February 6, ; and 3 alleged admissions in two state court cases involving the Individual Defendants.

This evidence does not resolve the factual dispute as to whether the Individual Defendants assisted in any unauthorized transactions. For example, in the telephone conference with Judge Carnes, the Judge asked Defendants' counsel what their defense would be in this case. Counsel responded that GE asset managers i. Counsel explained that the disbursements were "booked as loans from the company to the people who received the distribution, who are my clients.

Upon questioning, Defendants' counsel agreed that the loans were not "in the interest of the Company. In one, a July 7, email to Brannen, Savage expressed concern about the distributions and acknowledged that he and Noltes "signed on all these docs with you. This expression of concern, however, does not address whether GEBAM also approved of the transactions. And although the email suggests Noltes was previously aware of the disbursements, it does not constitute an admission of liability.

The second exhibit is a September 27, email to a GE representative wherein Noltes asks for "12 months to restore the funds. However, in the same breath, Noltes asserts that all the disbursements "were posted on the balance sheet over the last 4 years with the full knowledge of GE and its auditors. According to GEBAM, the "elaborate finger-pointing" in these actions somehow amounts to an admission of liability. To the extent GEBAM has referenced a specific portion of the record in these two state court cases, the Court has reviewed them and found no evidence of admissions of liability.

For their part, the Individual Defendants chiefly rely on their word. Noltes Aff. Thus, a conflict of evidence exists as to whether the Individual Defendants each participated in unauthorized disbursements. Again, GEBAM fails to reference where in the report this fact is "revealed," and the Court did not find it on its own.

However, Defendants Brannen and Savage have produced an email from a GE employee, dated November 21, , approving this higher percentage amount. Brannen is the only defendant who has filed a cross-motion for summary judgment. However, the Court will consider granting, sua sponte, summary judgment in favor of the other Individual Defendants on the veil-piercing claim because GEBAM has filed a summary judgment motion addressing the same issues upon which the Court makes its determination.

See Flood v. City of Belle Glade, F. Considering that GEBAM has also defended itself against Brannen's motion for summary judgment, the Court determines that GEBAM has had an adequate opportunity to demonstrate why summary judgment should not be granted in the Individual Defendants' favor on the veil-piercing claim. See Burton, F. To state a claim for aiding and abetting a breach of fiduciary duty, a plaintiff must show: " 1 the existence of a fiduciary relationship; 2 the fiduciary breached its duty; 3 a defendant, who is not a fiduciary, knowingly participated in the breach; and 4 damages to the plaintiff resulted from the concerted action of the fiduciary and the nonfiduciary.

Blum, No. Townson, A. The parties do not dispute this. Brannen's Resp. The Court must next consider whether IRS breached this duty and whether the Individual Defendants knowingly participated in this breach. Goldman Sachs Credit Partners L. Cuccia, No. May 14, Even if a self-interested transaction occurred, an informed party who approves of the transaction cannot later claim the transaction is unfair.

Tobin, F. GEBAM has sufficiently established self-interested transactions occurred, although the contours of such transactions remain unclear. Uncontroverted evidence shows that the Company made interest free loans to an IRS affiliate and at least one of the Individual Defendants. In addition, IRS paid more than the contractually allowed percentage for property management to a company affiliated with IRS. This appropriation of Company resources for its own benefit, and the benefit of IRS's affiliates, is a "classic example of self-dealing.

However, GEBAM has failed to address and resolve all factual disputes regarding the fairness of these transactions.

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BBB reports on known marketplace practices. C Birmingham, AL Contact Information. Customer Reviews. Customer Complaints. City of Belle Glade, F. Considering that GEBAM has also defended itself against Brannen's motion for summary judgment, the Court determines that GEBAM has had an adequate opportunity to demonstrate why summary judgment should not be granted in the Individual Defendants' favor on the veil-piercing claim.

See Burton, F. To state a claim for aiding and abetting a breach of fiduciary duty, a plaintiff must show: " 1 the existence of a fiduciary relationship; 2 the fiduciary breached its duty; 3 a defendant, who is not a fiduciary, knowingly participated in the breach; and 4 damages to the plaintiff resulted from the concerted action of the fiduciary and the nonfiduciary. Blum, No. Townson, A.

The parties do not dispute this. Brannen's Resp. The Court must next consider whether IRS breached this duty and whether the Individual Defendants knowingly participated in this breach. Goldman Sachs Credit Partners L. Cuccia, No. May 14, Even if a self-interested transaction occurred, an informed party who approves of the transaction cannot later claim the transaction is unfair. Tobin, F. GEBAM has sufficiently established self-interested transactions occurred, although the contours of such transactions remain unclear.

Uncontroverted evidence shows that the Company made interest free loans to an IRS affiliate and at least one of the Individual Defendants. In addition, IRS paid more than the contractually allowed percentage for property management to a company affiliated with IRS. This appropriation of Company resources for its own benefit, and the benefit of IRS's affiliates, is a "classic example of self-dealing.

However, GEBAM has failed to address and resolve all factual disputes regarding the fairness of these transactions. See also Dwight, F. Instead, GEBAM only challenges the Individual Defendants' position factually, arguing that there is insufficient evidence of the authorization.

This is not so. As discussed above, Defendants Savage and Brannen swear in affidavits that GEBAM approved the relevant transactions and state at least some factual basis for this assertion. Savage's Resp. Their position is also consistent with what they have been saying since this dispute arose. Savage Resp. RFA Doc. They have simply failed to make their case on summary judgment, leaving a genuine issue of fact as to whether GEBAM authorized the transactions with full knowledge, and thus whether the transactions were unfair.

GEBAM responds by arguing that the Individual Defendants cannot rely on their own "self-serving" affidavits in challenging its summary judgment motion. England, F. This is also not so. As the Eleventh Circuit recently explained, "[A] case should be put to the jury if there is any genuine issue of material fact, including one created solely by the testimony of a party.

City of Miami Beach, et al. In Feliciano, the Eleventh Circuit recognized that summary judgment may be appropriate where the nonmovant relies on conclusory assertions based entirely on subjective belief. On the other hand, non-conclusory, objective accounts of events may create a genuine issue of fact and thus preclude the entry of summary judgment.

This testimony is neither conclusory nor subjective. The contradiction between GEBAM's position and the Individual Defendants' regarding authorization is "a classic swearing match, which is the stuff of which jury trials are made. Thus, this testimony is sufficient to create a genuine issue of fact as to whether GEBAM authorized the disbursements.

First, it is inappropriate for the Court to test the veracity of a witness's testimony on summary judgment. Feliciano, F. Harget, F. The Court must focus on only the evidence that is clear: evidence that the Company made several interest-free loans to certain Individual Defendants or their affiliates. Moreover, it is not inherently illogical for business partners to provide interest-free loans to one another. Contrary to Defendant Brannen's arguments, the same deficiencies afflicting GEBAM on the issue of authorization will pose challenges to the Individual Defendants at trial.

They have yet to bring forth testimony from a GEBAM employee confirming the authorization of the transactions at issue. Moreover, when a jury hears the accusations the Individual Defendants have lodged against one another in other cases, their attestations of innocence — upon which they substantially rely — will no doubt lose credibility.

This factual dispute regarding GEBAM's authorization also creates a question as to whether any of the Individual Defendants "knowingly participated" in the breach. To prove that a defendant has "knowingly participated" in a breach of fiduciary duty, a plaintiff must show that "the third party act[ed] with the knowledge that the conduct advocated or assisted constitute[d] such a breach.

Thus, merely showing that the non-fiduciary knew certain actions occurred is insufficient. Rather, to support an aiding and abetting claim, a plaintiff must also show that the nonfiduciary knew the actions were a breach of a fiduciary duty. Turner, A. Here, however, as previously discussed a question of fact remains as to whether the Individual Defendants knew that IRS's disbursements or payment of management fees was a breach of a fiduciary duty.

And Noltes swears he was unaware of the transactions entirely. A reasonable jury could conclude that all three Defendants knowingly participated in the breach, but based on their testimony, a reasonable jury could also conclude otherwise: that the Individual Defendants believed that, by seeking and obtaining GEBAM's approval, IRS did not breach its fiduciary duties to GEBAM.

For the foregoing reasons, the Court determines that a genuine issue of fact exists as to whether IRS breached its fiduciary duty to GEBAM and whether the Individual Defendants knowingly participated in this breach. This veil-piercing claim rests on a finding that IRS was a "sham and exist[ed] for no other purpose than as a vehicle for fraud.

S'holder Litigation, A. Wood, A. Green Farms, Inc. Alden, No. July 14, To prevail on a veil-piercing claim, Plaintiff must prove fraud or injustice that goes beyond the alleged wrong in the Complaint and "relate[s] to a misuse of the corporate structure. March 4, As the Court has previously noted, this is a high bar to overcome. Delaware courts consider several factors when assessing whether to allow piercing of the corporate veil, including: 1 the failure to keep standard corporate records; 2 the failure to observe corporate formalities; 3 undercapitalization at the corporation's formation; 4 insolvency; 5 exclusive domination and control over the company by the individual; and 6 "whether the dominant shareholder siphoned corporate funds.

Burleigh, No. Elevator Indus. Lutyk, F. Drexel Burnham Lambert Inc. May 28, Golden Acres, Inc. Although some evidence suggests that the Individual Defendants engaged in unauthorized disbursements and over-allocated management fees and costs and that such conduct amounted to a siphoning of corporate funds, there is no evidence that the Individual Defendants did this through an abuse of the corporate form.

There is no evidence, for example, that IRS failed to keep standard corporate records or observe corporate formalities. IRS was not undercapitalized when it was formed, and although there is evidence IRS was unable to pay its debts, this is insufficient to suggest that IRS's corporate form was a sham.

Finally, while there is no doubt that the Individual Defendants exercised some degree of control over IRS, GEBAM has failed to show "exclusive domination and control by [the Individual Defendants] to the point that [IRS] no longer had legal or independent significance of [its] own. Put simply, GEBAM has failed to establish fraud or injustice that goes beyond the alleged wrong in the Complaint and "relate[s] to a misuse of the corporate structure.

To state a claim for unjust enrichment, a plaintiff must show: " 1 an enrichment, 2 an impoverishment, 3 a relation between the enrichment and the impoverishment, 4 the absence of justification, and 5 the absence of a remedy provided by law. Kuttner, No. July 12, quoting Schock v. Nash, A. Defendant Brannen moved for summary judgment on this claim as well, arguing only that GEBAM's contract claim against IRS is an adequate remedy at law precluding a claim for unjust enrichment.

As an initial matter, this Court has previously rejected Brannen's argument, and will not reconsider it now. Cantor, et al. June 16, However, based on GEBAM's citations to the record, the Court could only identify several thousand dollars of interest-free loans to some of the Individual Defendants. The Court cannot grant GEBAM summary judgment on its unjust enrichment claim without specific, undisputed facts, supporting a relationship between the purported unjustified enrichment of each Individual Defendant and GEBAM's associated loss of funds.

It may well be that GEBAM will bring a litany of witnesses to trial to connect the dots of its unjust enrichment claim, but it has failed to do so here. And perhaps GEBAM will put forth a compelling case at trial, complete with testifying witnesses and actual evidence of unauthorized transactions totaling in the millions. GEBAM has failed, however, to make such a case here on summary judgment. Likewise, although the Individual Defendants have put forth sufficient evidence to ward off an entry of judgment against them at this stage in litigation, they face serious hurdles in their defense at trial, not the least of which is the relatively thin support for their assertion that GEBAM authorized all questionable transactions.

However, as a genuine issue of fact exists as to whether GEBAM authorized the transactions at issue in this case and in fact, what transactions are actually at issue in the first place , the Court allows GEBAM's claim of aiding and abetting a breach of fiduciary duty and unjust enrichment to proceed to trial.

As GEBAM has had an adequate opportunity, and failed, to demonstrate why its veil-piercing claim should be maintained, the Court sua sponte dismisses Plaintiff's veil-piercing claim against Defendants G. Willem Noltes and Guy A. Savage as well. Finally, the Court notes that it has previously directed the parties in this matter to mediation, to no avail. However, should the parties decide that mediation would be advantageous, the parties are DIRECTED to promptly notify the Court of their intention to pursue mediation by filing a joint Notice within 10 days of the entry date of this Order.

In such case, the mediation shall conclude within 45 days of entry date of this Order. Unless the parties determine to proceed with mediation, their proposed consolidated pretrial order is due within 30 days of the entry date of this Order.

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case. Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case. Home Browse Decisions F. Signed February 21, Willem Noltes, Atlanta, GA, pro se. FootNotes 1. See infra n. Your Name. Your Email.

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