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October 1, 1985
PIANO REMITTANCE CORPORATION, Plaintiff,
RELIANCE FINANCIAL SERVICES CORPORATION, and WALT DISNEY PRODUCTIONS CORPORATION, Defendants
Plaintiff Piano Remittance Corporation ("PMC") brought this shareholder's derivative suit on behalf of Walt Disney Productions Corporation ("Disney") alleging that defendant Reliance Financial Services Corporation ("Reliance") is liable to Disney under § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b) (1982), for profits it made on short-swing trading in Disney stock. Section 16(b) provides that a corporation can require certain inside traders, statutorily defined as the corporation's directors and officers and beneficial owners of more than 10% of the corporation's outstanding stock, to disgorge the profits they realize on any purchase and sale of the corporation's securities within a six-month period. Plaintiff alleges that Reliance is liable to Disney for the profits it made when, as a beneficial owner of more than 10% of Disney's outstanding stock, it purchased 748,000 Disney shares and sold them less than six months later.
Section 16(b) provides that in order for a beneficial owner to be subject to the statute's proscriptions, he must have been a 10% shareholder "both at the time of the purchase and sale . . . of the security involved." Reliance has moved to dismiss plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that it was not a 10% Disney shareholder at the time of the purchase of the stock at issue here. For the reasons stated below, Reliance's motion is denied.
For the purposes of this motion, the allegations of PMC's complaint must be taken as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972); Joyce v. Joyce Beverages, Inc., 571 F.2d 703, 706 (2d Cir.), cert. denied, 437 U.S. 905, 98 S. Ct. 3092, 57 L. Ed. 2d 1135 (1978). Accordingly, these are the relevant facts:
In April 1984, Reliance owned 3,198,233 Disney shares, or approximately 9.3% of Disney's outstanding stock. Complaint P5(b). Sometime thereafter, Reliance instructed its broker, Salomon Brothers, to purchase an additional 1,000,000 Disney shares for its account. Id. P5(c). Salomon Brothers purchased those shares for Reliance from several sources over several days, and transferred formal title to Reliance on May 1, 1984 when the 1,000,000 shares crossed the tape of the New York Stock Exchange at $65.50 per share. Id. With this purchase, Reliance owned approximately 12.2% of Disney's outstanding stock. Id. P6(a). On June 11, 1984, Reliance sold the 1,000,000 shares it had purchased to Disney itself for $70.83 per share, thereby making a profit of at least $5.20 per share. Id. P7.
Plaintiff alleges that Reliance reached the 10% shareholder threshold as soon as Salomon Brothers purchased 252,000 shares for its account, and therefore that Reliance is subject to § 16(b) liability for the 748,000 shares it purchased after that point. Id. PP5(d), 8(a), 9. Reliance argues, however, that its block purchase was a single transaction, and that it cannot be subject to § 16(b) liability since it was only a 9.3% shareholder at the time it bought the entire 1,000,000 shares.
Before turning to the merits of this motion, I take a moment to note that since this is a motion to dismiss, my task is a limited one. My role at this stage of the litigation is not to assess the strength or weakness of plaintiff's case, but only to determine whether plaintiff is entitled to offer evidence to support its claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). I may not dismiss the complaint unless it appears beyond doubt that plaintiff could prove no set of facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957).
The parties agree that the resolution of this motion lies in an appropriate interpretation of the Supreme Court's decision in Foremost-McKesson, Inc. v. Provident Sec. Co., 423 U.S. 232, 96 S. Ct. 508, 46 L. Ed. 2d 464 (1976). Of course, they disagree as to what that interpretation should be.
Briefly stated, the facts of Foremost are as follows: Provident Securities Company ("Provident") was a holding company that decided to dissolve and liquidate its assets. After extensive negotiations, Foremost-McKesson, Inc. ("Foremost") agreed to buy Provident's assets in part with cash and in part with its own securities. At the closing of their deal, Foremost delivered to Provident the cash and a debenture which was immediately convertible into more than 10% of Foremost's outstanding common stock. Less than six months after the closing, Provident sold the debenture to a group of underwriters, distributed the proceeds to its shareholders, and dissolved. Realizing that Foremost might sue it to recover any profits realized on the sale of the debenture to the underwriters, Provident sued for a declaration that it was not liable to Foremost under § 16(b). The Court of Appeals for the Ninth Circuit held that Provident was not liable on the ground that it was not a beneficial owner of 10% of Foremost's outstanding stock "at the time of the purchase." Provident Sec. Co. v. Foremost-McKesson, Inc., 506 F.2d 601 (9th cir. 1974), aff'd, 423 U.S. 232, 96 S. Ct. 508, 46 L. Ed. 2d 464 (1976). The court rules that in a purchase-sale sequence the phrase "at the time of the purchase" "must be construed to mean prior to the time when the decision to purchase is made." Id. at 614. Since Provident was not a 10% owner at the time it decided to acquire the Foremost securities, the court concluded that it was not subject to § 16(b).
The Supreme Court affirmed the court of appeals, holding that "in a purchase-sale sequence, a beneficial owner must account for profits only if he was a beneficial owner 'before the purchase.'" 423 U.S. at 250, 96 S. Ct. at 519. In reaching this conclusion, the Court considered the purpose and legislative history of § 16(b). The Court explained that Congress was concerned that insiders sometimes have access to information that is not available to the rest of the investing public, and that by trading on this information, insiders can reap profits at the expense of less-knowledgeable investors. Id. at 243, 96 S. Ct. 515-16. Congress believed that the potential for insider abuse was particularly great in the area of short-term speculative trading, and in enacting § 16(b), it attempted to curb this evil by removing all profitmaking incentive. Id. As the Court explained, Congress did this by (1) creating a conclusive presumption that all officers, directors, and beneficial owners of more than 10% of a corporation's outstanding stock have access to inside information, and (2) enacting a "flat rule" that a corporation could recover the profits these insiders make on any purchase and sale of the corporation's stock within a six-month period. Id. at 243-44, 96 S. Ct. at 515-16.
After examining the general purposes of the statute, the Court turned to an analysis of the phrase "at the time of the purchase." It concluded, for two principal reasons, that this phrase should be construed to mean that a beneficial owner is subject to § 16(b) liability only if he was a 10% owner before the purchase in question. First, the Court noted that in previous drafts, the statute explicitly limited liability to beneficial owners who had achieved that status before the purchase at issue. Id. at 248, 96 S. Ct. at 518. Second, the Court explained that while congress believed that all corporate officers and directors could be presumed to have access to inside information, it believed that the only shareholders who could be so presumed were those who owned more than 10% of the corporation's stock. Since it was speculation on inside information that Congress sought to curb, and since Congress was unwilling to presume that a beneficial owner had inside information until he was a 10% owner, the Court concluded that the purchase that took an investor from less than 10% to more than 10% ownership could not properly be considered a purchase within the coverage of § 16(b).
Id. at 253-54, 96 S. Ct. at 520-21.
In support of its conclusion, the Supreme Court emphasized that if a purchaser did not own more than 10% of the corporation's outstanding stock before making a purchase, his decision to buy could not be presumed to have been based on inside information. The Court noted that "as a matter of practicalities the crucial point in the acquisition of securities is not the technical 'purchase', but rather the decision to make an acquisition. " Id. at 254 n.28, 96 S. Ct. at 521 n.28 (emphasis added). The Court then stated, in terms Reliance contends are particularly relevant here, that
[i]n the case of an acquisition of a large block of a corporation's stock, that decision may precede the "purchase" by a considerable period of time. A prudent investor will want to investigate all available information on the corporation. Such an investor also may need time to finance the purchase, and may wish to effectuate purchases without influencing the market price. These realities emphasize that the acquisition decision by a beneficial owner normally will occur well in advance of the event that is presumed to afford access to inside information.
Id. (emphasis added).
Reliance contends that with these statements, the Supreme Court made clear that a purchaser can be liable under § 16(b) only if he was a 10% shareholder at the time he decided to buy the stock in question. Reliance argues that the complaint in this case can be read to allege only one decision to purchase Disney stock -- that is, when Reliance instructed its broker to purchase the 1,000,000 share block for its account. Reliance argues that since the complaint alleges that at the time it gave this instruction to Salomon Brothers it was only a 9.3% shareholder of Disney stock, it cannot be subject to § 16(b) liability.
Yet, while the Supreme Court noted in Foremost that the crucial point in the purchase of stock for § 16(b) purposes is the decision to buy and not the technical transfer of ownership, the Court did not indicate how to identify when a decision to purchase has been made. Reliance offers a common-sense answer; it contends that it made a decision to purchase when it instructed its broker to purchase the 1,000,000 share block of Disney stock for its account. Plaintiff, however, argues that this approach has the potential to frustrate the legislative aim of § 16(b); it argues that Reliance should not be considered to have made a "decision to buy" for § 16(b) purposes until it was "Irrevocably committed" to the transaction -- that is, until it "no longer ha[d] control over the transaction in any way that could be turned to [its] speculative advantage . . . ." Prager v. Sylvestri, 449 F. Supp. 425, 432-33 (S.D.N.Y. 1978).
Plaintiff concedes that if Reliance was irrevocably committed to purchasing all 1,000,000 shares when it placed its instruction with its broker, it could not be liable under § 16(b) as a matter of law. Plaintiff acknowledges that this case would then be identical to Foremost -- like Provident, Reliance would have gone from a less than 10% to more than 10% owner in an instant, and could not be held liable because it would not have been a 10% owner before the purchase in question. However, plaintiff argues that since Reliance's block purchase was not executed in an instant, but rather through many transactions over several days, this case presents an opportunity for speculation on inside information that was not present in Foremost. Plaintiff argues that if Reliance was not irrevocably committed to buying the entire block at the time it placed its order, it could have reached the 10% owner threshold before making a decision whether to purchase the balance of the block. Plaintiff argues that at that point, Reliance must be presumed to have had access to inside information, and the 748,000 shares it bought after it reached the 10% shareholder level should be subject to the disgorgement rules of § 16(b).
In view of the purposes of § 16(b), the Court finds plaintiff's reasoning persuasive. Indeed, any other result would potentially frustrate Congress's attempt to impose a complete ban on short-term insider trading. Courts have repeatedly stated that since § 16(b) is a remedial statute, "It must be strictly construed in favor of the corporation and against any person who makes profit dealing in the corporation stock." Adler v. Klawans, 267 F.2d 840, 846-47 (2d Cir. 1959); Lewis v. Realty Equities Corp., 373 F. Supp. 829, 831 (S.D.N.Y. 1974) (quoting Adler). Of course, the Court cannot extend the statute beyond the limits set by Congress, but I think it is plain that the construction offered by plaintiff is the only one consistent with the legislative intent of § 16(b).
Moreover, the concept that a purchase cannot be said to have "purchased" stock for § 16(b) purposes until he is irrevocably committed to the transaction is a familiar one, albeit in a slightly different context. In determining whether § 16(b) applies to particular cases, courts often have had to decide whether a purchase and sale were made within a six-month period. Courts in this circuit have consistently held that a purchaser becomes a beneficial owner at the moment at which he is "irrevocably committed" to the transaction in question. See, e.g., Stella v. Graham-Paige Motors Corp., 232 F.2d 299, 301 (2d Cir.), cert. denied, 352 U.S. 831, 77 S. Ct. 46, 1 L. Ed. 2d 52 (1956); Blau v. Ogsbury, 210 F.2d 426, 427 (2d Cir. 1954) (purchase occurred at time when the insider's "rights and obligations became fixed"); Prager, 449 F. Supp. at 432-33. Like the Supreme Court in Foremost, these courts have found that the time at which stock ownership is technically transferred is irrelevant for § 16(b) purposes. Instead, they have focused on when the purchaser is irrevocably committed to buy because it is at that point that he loses the power to take advantage of any inside information he might later acquire. See Stella, 232 F.2d at 301; Blau, 210 F.2d at 427; Prager, 449 F. Supp. at 432-33. Since the same concern is at issue here, it seems appropriate to employ the same concept to address it.
Therefore, for all of these reasons, I conclude that Reliance cannot avoid liability simply by pointing to the fact that it owned less than 10% of Disney's outstanding shares when it told its broker to buy the 1,000,000 additional shares for its account. In order to avoid liability, Reliance also must show that it had an irrevocable commitment to buy those shares once it placed its order. Reliance has suggested that under New York law, it was obligated to purchase the shares at the time it placed its order so long as its broker was able to assemble the block. However, it cites only one case for that proposition, Billings Assocs., Inc. v. Bashaw, 27 A.D.2d 124, 276 N.Y.S.2d 446 (4th Dep't 1967), and even a cursory review of that case reveals that it does not stand for what Reliance says it does.
Accordingly, I conclude that Reliance has failed to demonstrate that it was irrevocably committed to purchase the entire 1,000,000 share block of Disney stock when it placed its order with its broker.
For all of the reasons set forth above, I conclude that plaintiff might be able to prove a set of facts that would entitle it to relief; for that reason, Reliance's motion to dismiss the complaint for failure to state a claim must be denied. The parties are directed to proceed with discovery and to appear for a pretrial conference on Friday. October 25, 1985 at 11:00 A.M. in Courtroom 618.
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March 21, 2012
MAXXSONICS USA, INC., PLAINTIFF AND COUNTER-DEFENDANT,v.FENGSHUN PEIYING ELECTRO ACOUSTIC COMPANY, LTD., DEFENDANT AND COUNTER-PLAINTIFF.
Before the Court are the Defendant's Motion for Partial Summary Judgment and Motion to Compel. For the reasons stated herein, the Court denies the Motion to Compel and the Motion for Summary Judgment on Count I of Defendant's Counterclaim. The Court grants Defendant's Motion for Summary Judgment on Plaintiff's First Affirmative Defense to the extent that Plaintiff seeks a set-off under purchase orders other than the six at issue in the Counterclaim. The Court denies Summary Judgment on Plaintiff's First Affirmative Defense to the extent that Plaintiff seeks a setoff for defective goods provided under the purchase orders at issue in the Counterclaim.
The facts of this case are largely undisputed. Plaintiff Maxxsonics USA, Inc. ("Maxxsonics") is an Illinois corporation that sells aftermarket audio equipment. Defendant Fengshun Peiying Electro Acoustic Company, Ltd. ("Fengshun") is a Chinese company that manufactures car amplifiers. Between roughly 2007 and 2009, Fengshun manufactured amplifiers for Maxxsonics. According to Plaintiff, a significant number of the amplifiers delivered by Fengshun during that period were defective, and were returned by consumers to retail distributors. The parties endeavored to resolve the issue, but those efforts broke down, resulting in this litigation.
Maxxsonics evidently paid the invoices for all of amplifiers, save the last six orders. It is undisputed that Maxxsonics paid $100,000 of the roughly $610,000 due under those invoices. Neither party appears to dispute that each purchase order constituted a separate contract. See Def.'s Mem. in Support of Summ. J., 1, 2; Pl.'s Resp. at 3, 4.
Fengshun seeks partial summary judgment on Count I of its counterclaim and on Maxxsonics' first affirmative defense. Count I of the counterclaim alleges breach of contract, on the theory that Fengshun performed under the last six purchase orders, but Maxxsonics breached by withholding payment in retaliation for allegedly defective goods that Fengshun had shipped under previous purchase orders. Fengshun also argues that is entitled to summary judgment on Maxxsonics' first affirmative defense of set-off, because a party may not receive a set-off for breaches of unrelated contracts.
Fengshun contends that Maxxsonics' officers admitted that the last six orders of amplifiers were not defective, and thus that Fengshun performed under the purchase order contracts. Fengshun argues that deposition testimony proves that Maxxsonics withheld payment for the final six purchase orders solely due to allegedly defective amplifiers in previous shipments. To that end, Fengshun emphasizes the testimony of Alden Stiefel ("Stiefel"), Maxxsonics' President, and Sherri Lynn Sawyer ("Sawyer"), its Vice President of Finance. (The parties spell Stiefel's name differently; the Court adopts the spelling from the deposition transcript.) Because of the extent to which this motion turns on that testimony, the Court takes the usual step of setting it out below. Stiefel testified as follows:
"Q. Was it your decision not to pay that amount to them on those invoices?
A. Yes.
Q. And what was the basis of your decision not to pay the balance due?
A. We had been trying to get them to repair product for almost 2 years with continued promises that they would take care of it. We were having bank issues. You know the banking situation in the U.S. at the time. We were using the inventory as collateral. The bank said you can no longer use defective product as collateral.
. . . Q. Did you have any belief at the time you made the decision not to pay Fengshun Peiying the $510,202.34 that was still owed on those contracts, that 100% of the goods supplied pursuant to those [purchase orders] was defective?
A. No.
Q. . . . Do you know whether the product that was in dispute in terms of being defective predated September 19, 2008?
A. Do I know if the defective product predated those dates?
Q. Correct.
Q. Okay. It did predate those dates or you know it predated those dates?
A. I know it predated those dates. (Stiefel Dep. 41:17 -- 43:20.)
Sawyer testified that Maxxsonics stopped paying Fengshun near the end of 2008, and as follows:
Q. And what was the reason for [discontinuing payments]?
A. Their inability to provide a solution to defective product problems.
Q. Was the discontinuance of payments to Fengshun Peiying by Maxxsonics tied specifically to nonconformity of products related to the specific [purchase orders] and the invoices not paid?
A. I don't believe so.
Q. So there was a general issue with respect to a repair dispute that caused Maxxsonics to discontinue making payments to Fengshun Peiying?
Q. So we would agree that the non-payment of invoices submitted totaled somewhere in the area of actually about $510,000?
Q. And there was never a calculation made with respect to any claimed nonconformity of goods within those particular [purchase orders] that was the basis of a partial nonpayment of those invoices; is that right?
A. I'm not aware of any calculation as such. (Sawyer Dep. 75:1--76:21.) She also testified that Stiefel made the decision to stop paying Fengshun. (Id. 75:17-- 19.)
Plaintiff has furnished an affidavit from its Vice President of Operations, Marc Sullivan ("Sullivan"), which states that 480 amplifiers from the last six purchase orders were returned as defective, and that Maxxsonics notified Fengshun of 139 such defects by February 26, 2009.
Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).
A dispute is "genuine" if the evidence would permit a verdict for the non-movant, and material if it may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant meets its burden, the non-movant must present facts showing a genuine dispute to avoid summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986).
Courts do not evaluate credibility or decide facts on summary judgment, and construe all facts in favor of the non-movant. Liberty Lobby, 477 U.S. at 249; Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009). Courts may draw inferences from the evidence, but need not draw every conceivable inference. McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci, 129 S. Ct. at 2677 (citation omitted).
Local Rule 56.1 requires a party opposing summary judgment to serve and file, inter alia, a concise response to the movant's statement of material facts, containing (a) numbered responses to each of the movant's material facts, and (b) a statement in the same form setting forth any additional facts which require the denial of summary judgment, with supporting references. This procedure is mandatory. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). However, whether to apply the rules strictly, and deem any improperly controverted statements admitted, lies within the Court's discretion. Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011). Even if a movant's statement of material facts is deemed admitted, however, the Court must still evaluate the claims and the record to determine whether summary judgment is appropriate. RBS Citizens, N.A. v. Compuray Staffing, Inc., No. 11 C 2586, 2012 WL 502653 at*2 (N.D. Ill. February 15, 2012).
A. Motion to Compel
Defendant seeks discovery into Plaintiff's contracts and disputes with another amplifier manufacturer. Having considered the parties' arguments, the Court finds that Plaintiff has demonstrated that the requested discovery would be unduly burdensome in light of the extensive resources it would require and the limited value that any such evidence would have to the case at hand. Accordingly, Defendant's Motion to Compel is denied.
B. Compliance with Rule 56.1
Defendant correctly points out that Plaintiff did not file a Rule 56.1 response to Defendant's statement of material facts, nor did Maxxsonics file such a statement of its own. Accordingly, it is within this Court's discretion to deem admitted any of Defendant's statements of material fact that are supported by the record. Tr. Of the Chicago Reg'l Council of Carpenters Pension Fund v. McGreal Const. Co., No. 11 C 2810, 2012 WL 280720, at *1 n.1 (N.D. Ill. January 31, 2012).
Although Plaintiff has failed to comply with Rule 56.1, the Court concludes that because the exhibits attached to Plaintiff's response are sufficiently concise and cited in its memorandum, the harsh penalty of disregarding its factual submissions is not warranted here. Accordingly, Defendant's Statements of Material Fact are not deemed admitted unless they are supported by the record and uncontroverted by Plaintiff's evidence.
C. Fengshun's Counterclaim Count I-Breach of Contract
1. Applicable Law
Fengshun argues that the United Nations Convention on Contracts for the International Sale of Goods (the "CISG") governs the contracts here, because they arose between companies from the United States and China, which are both CISG signatories. Maxxsonics relies on Illinois law without discussion.
The CISG "sets out substantive provisions of law to govern the formation of international sales contracts and the rights and obligations of the buyer and seller." Caterpillar, Inc. v. Usinor Industeel, 393 F.Supp.2d 659, 673 (N.D. Ill. 2005). The Court agrees that because the United States and China are both CISG signatories, the CISG governs the contracts. See CNA Int'l Inc. v. Guangdon Kelon Electronical Holdings, 05 C 5734, 1 (N.D. Ill. September 3, 2008). However, in a breach of contract claim, relatively little turns on the choice between the CISG and the UCC. The elements of a breach of contract claim are the same either way; a counter-plaintiff must show: "(1) the existence of a valid and enforceable contract containing both definite and certain terms, (2) performance by [counter-] plaintiff, (3) breach by [counter-] defendant and (4) resultant injury to [counter-] plaintiff." Magellan Intern. Corp. v. Salzgitter Handel GmbH, 76 F.Supp.2d 919, 924 (N.D. Ill. 1999). Furthermore, in applying the CISG, courts may inform their analysis by looking to parallel UCC provisions. Dingxi Longhai Dairy, Ltd. v. Becwood Tech., 635 F.3d 1106, 1108 (8th Cir. 2011).
2. Analysis
Maxxsonics has effectively conceded three of the four elements of a breach of contract claim, namely: that the six purchase orders created valid and enforceable contracts; that Maxxsonics failed to pay the balance due after receiving the product; and that the resulting damages total roughly $510,202.34. The key issue, however, is whether Fengshun substantially performed its end of the deal.
According to Fengshun, Maxxsonics' officers admitted that it withheld payment because of defective merchandise from previous orders, not the six purchase orders at issue in the Counterclaim. Therefore, Fengshun argues, Maxxsonics conceded that the shipments at issue conformed to the contracts. For support, Fengshun points the Sawyer and Stiefel depositions. Unfortunately, several cited pages from Sawyer's deposition were not provided to the Court. Accordingly, the Court must determine whether the record before it shows no genuine issue of material fact regarding Defendant's performance under the last six purchase orders.
The Court finds the identified portions of Stiefel's deposition to be less clear than Defendant suggests. His responses clearly indicate an ongoing dispute, but are not clear either way as to whether payment was withheld (at least in part) due to defective amplifiers in the last six orders. Stiefel was also asked whether 100% of the merchandise in those six orders was defective. This question stands in marked contrast to the more precise version posed to Sawyer the day before: whether the discontinued payments were tied to any nonconforming items in those last shipments. As the movant on summary judgment, Defendant may not choose to ask ambiguous questions and then ask this Court to draw inferences in its favor. For the same reason, the Court will not disregard Plaintiff's responses to interrogatories, which Defendant argues are contradicted by that deposition testimony.
More damaging to Maxxsonics' argument are Sawyer's statements that she did not believe that Maxxsonics' refused pay the balance on the last six orders because of defective merchandise in those orders. If, as Fengshun argues, Sawyer participated in the decision to discontinue payments and holds that belief, Maxxsonics' prospects are dim, indeed. Def.'s Mem. in Support of Summ. J., 7. However, Sawyer testified that Stiefel made that decision, and she did not mention participation on her part. Sawyer Dep. 75:15-19. When contrasted with Maxxsonics' answer to the counterclaim (which denies that the amplifiers conformed to the contracts), Sawyer's belief supports an inference that payment was withheld to gain leverage in the dispute over other amplifiers. However, on summary judgment, this Court must draw all reasonable inferences in favor of the non-movant.
Maxxsonics contends that there is a genuine issue of material fact regarding Fengshun's performance under the contract. It points to Vice President of Operations Marc Sullivan's affidavit, which states that by February 2009, 139 amplifiers from those last six orders were returned as defective, and that customers would eventually return 480 amplifiers from those shipments. Maxxsonics also points to its responses to Defendant's interrogatories, where it identified the number of allegedly defective amplifiers by "stock code" (evidently, amplifier model). However, Maxxsonics apparently failed to answer Defendant's request to identify each returned item by the purchase order under which it was delivered.
Fengshun attacks Sullivan's affidavit as unsupported and pretextual, and deems Maxxsonics' claim that the last shipments contained defective amplifiers a post hoc contrivance. Fengshun argues that the affidavit fails to establish that Sullivan has personal knowledge of its contents, because it does not specify how the company tracked the data he offers. However, the affidavit lists Sullivan's role and says that he compiled defective-amplifier data, communicating some of those complaints to Fengshun during the companies' relationship. Though sparse, the affidavit is adequate.
Defendant also claims that the affidavit contradicts Sullivan's deposition testimony, because it purports to tie particular amplifiers to a particular shipment. According to Fengshun, Sullivan conceded in his deposition that Maxxsonics only tracks amplifiers by stock code, not by shipment or any other detailed criteria. In context, it is not as clear as Defendant claims that Sullivan testified that Plaintiff kept no identifying information tying products to a particular shipment. As the Court reads the deposition excerpt, Sullivan was asked how amplifiers are tracked immediately upon receipt, not whether Maxxsonics had any way to identify the purchase order from which a particular product emanated. The Court agrees with Defendant that Plaintiff will need to explain at trial how such tracking occurs, and that Defendant may have ample fodder for cross-examination. However, the Court cannot agree that the deposition so clearly contradicts the affidavit that the affidavit should be disregarded, or that the deposition testimony eliminates any genuine issue of material fact.
Fengshun also contends that Sullivan conceded that Maxxsonics can only show that its customers returned amplifiers, not that they were actually defective. However, because Fengshun raised this argument for the first time in reply, the argument is waived for purposes of summary judgment. See Harris v. Warrick County Sheriff's Dept., 666 F.3d 444, 448 (7th Cir. 2012).
While the Court appreciates the weight of Defendant's arguments about Plaintiff's ability to tie particular amplifiers to particular shipments, Defendant has the burden of showing an absence of disputed material facts. Furthermore, while it seems likely that the payments were withheld at least in part due to previous unsatisfactory shipments, this Court may not weigh evidence on summary judgment. The Court cannot conclude that there is no genuine issue of material fact regarding Fengshun's performance under the final purchase orders. Accordingly, summary judgment on Count I of the counterclaim is denied.
D. Maxxsonics' Affirmative Defense of Set-Off
Fengshun also moves for summary judgment on Plaintiff's first affirmative defense: that even if Maxxsonics is liable to Fengshun for breaching the final six purchase orders, Maxxsonics is entitled to a set-off for the defective amplifiers. Fengshun again argues that Maxxsonics employees admitted to withholding payment solely because of allegedly defective amplifiers delivered in previous, unrelated shipments. Under applicable law, according to Fengshun, set-off is only available for claims arising under the same contract. Plaintiff contends that Fengshun misapprehends its counterclaim, and that its affirmative defense is directed to defective amplifiers in the final six orders. For reasons similar to those above, the motion for summary judgment on Plaintiff's first affirmative defense is denied in part.
1. Applicable law
As noted above, the CISG governs these contracts. Fengshun notes that the CISG has no provision governing set-offs, but essentially argues that this Court should reason by analogy and apply the UCC's set-off rules under the CISG's anticipatory breach provision (Article 71). The Court concludes that Fengshun poses the right standard, but by the wrong route.
Article 50 of the CISG allows a buyer to reduce the price of nonconforming goods, but that remedy is not identical to set-off under the UCC. See Michael Bridge, A Commentary on Articles 1-13 and 78, in THE DRAFT UNCITRAL DIGEST AND BEYOND, 250 (Franco Ferrari, Harry Fletchner, Ronald A. Brand, Eds.) (2004). Most courts considering the question have determined that set-offs fall outside the CISG's scope. See, e.g., The Machines Case, 4C.314/2006 Bundesgericht [Federal Supreme Court], Switzerland (December 20, 2006), available at http://cisgw3.law.pace.edu/cases/ 061220s1.html; Stefan Kroll, Selected Problems Concerning the CISG's Scope of Application, 25 J. L. & COMMERCE 39, 50-53 (2005-6) (collecting cases and authority). This is consistent with the position of notable authorities that the general availability of set-off is a procedural issue not specified by the substantive law of the CISG. See John O. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention, 341-42 & n.11 (3d. Ed. 1999) (noting that whether a buyer who receives nonconforming goods has a right akin to Art. 50 under the CISG damages provision depends on procedural rules governing set-off and counterclaim). Indeed, the Convention on the Limitation Period in the International Sale of Goods, a procedural counterpart to the CISG, permits set-off if both claims relate to the same contract or to multiple contracts concluded in the course of the same transaction. See Art. 25(2), available at http://treaties.un.org/doc/publication /UNTS/Volume%201511/v1511.pdf. However, China is not a signatory to the Limitation Convention. See Status, 1974 Convention on the Limitation Period in the International Sale of Goods, http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/197 4Convention_status.html.
Even among those courts which find that set-offs fall within the CISG's scope, most have found the CISG silent on the issue. Applying the CISG's gap-filling procedure, they have then concluded that national law controls whether set-offs are available. See Kroll, Selected Problems, supra. See also, 15 U.S.C. App., Art. 7(2), available at http://www.uncitral.org/pdf/english/texts/ sales/cisg/V10569 97-CISG-e-book.pdf. Under either approach, most courts seem to apply national law to set-off claims arising from CISG contracts. In terms more familiar to courts in a federalist system, the result is the same whether the CISG (as federal law) has a narrow preemptive scope, thus leaving the Illinois UCC's setoff provision un-preempted, or whether the CISG broadly preempts state law but incorporates state law rules to fill in its gaps.
Ordinarily, this Court would accordingly apply Illinois choice-of-law rules to determine whether Illinois or Chinese law governs the set-off claim. Forestal Guarani S.A. v. Daros Intern., Inc., 613 F.3d 395, 401 (3d Cir. 2010). However, because the parties have applied the Illinois UCC (Defendant by analogy, Plaintiff without comment), this Court will follow suit. Cf. Checkers Eight Ltd. Partnership v. Hawkins, 241 F.3d 558, 561 (7th Cir. 2001) (assuming with the parties that Illinois law applies where no party cited any other law).
Under the Illinois UCC, set-offs are only available for claims arising under the same contract. 810 Ill. Comp. Stat. § 5/2-717 and cmt. 1. Thus, insofar as Maxxsonics seeks a set-off from contracts other than those in the Counterclaim, Fengshun is entitled to summary judgment. However, insofar as Maxxsonics seeks a set-off for faulty amplifiers in the last six orders, that claim turns upon to factual questions that cannot be resolved here: whether those shipments contained defective amplifiers, and extent to which Maxxsonics was damaged by any such defects. To that extent, therefore, this Court denies Fengshun's Motion for Summary Judgment on the affirmative defense.
For the reasons stated herein, the Court rules as follows:
1. Denies Defendant's Motion to Compel;
2. Denies Defendant's Motion for Summary Judgment on Count I of its Counterclaim;
3. Grants Defendant's Motion for Summary Judgment on Plaintiff's first affirmative defense, to the extent that Plaintiff seeks a set-off for a breach of any purchase order other than those at stake in the counterclaim; and
4. Denies Defendant's Motion for Summary Judgment on Plaintiff's first affirmative defense to the extent that Plaintiff seeks a set-off for any allegedly defective amplifiers delivered as part of the final six purchase orders.
Harry D. Leinenweber, JudgeUnited States District Court
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Laser Lawsuit - Challenge to Laser trademark ownership
by Marine Business-World on 8 May 2013
Rolex Miami OCR 2010 © Rolex / Dan Nerney
Another new development in the widening legal dispute between Bruce Kirby, the designer of the world´s best known sailing boat, the Laser dinghy and one of the Laser builders LaserPerformance (LPE) the builder and supplier of Lasers into UK, Europe and North America, because of non-payment of design royalties.
In March 2013, Bruce Kirby, Inc. filed a complaint in the U.S. Federal Court District of Connecticut, alleging unlawful counterfeiting of the Kirby dinghy by LaserPerformance principal Farzad Rastegar acting with and through LaserPerformance and its associated entities. The case also named the International Sailing Federation (ISAF) and the International Laser Class Association (ILCA) alleging they assisted LaserPerformance by continuing to supply ISAF plaques to the builder, after Kirby had given them formal notice to stop.
ISAF and ILCA defended their position, explaining that they have been acting to protect European and US supply of the boats, as LPE, the notional owner of the Laser trademark in Europe and the USA, had threatened legal action if another company began selling Laser branded boats in those markets. The situation has become very messy with Performance Sailcraft Australia saying that ISAF and ILCA´s decision to provide new plaques removing Bruce Kirby from the plaques left them unable to supply Lasers across Australia, New Zealand and the South Pacific.
This subject is certain to be a hot topic at this weekend's ISAF mid-year conference in Copenhagen.
Ahead of this meeting, there has been movement on the Laser trademark front, with a posting today on the Kirby operated website www.kirbytorch.com revealing details of a petition to the United States Patent and Trademark office challenging the Laser trademark ownership.
The Connecticut Intellectual Property Rights law firm St. Onge, Steward, Johnston and Reens acting for Bruce Kirby Inc is claiming that the notional owner of the Laser trademark in the USA, a Swiss owned company Velum Ltd. allegedly controlled by Farzad Rastegar, the owner of LaserPerformance has committed fraud in its recent applications for US trademark renewal.
To hold a United States trademark, the owner is required to show proof of active use of the trademark and the grounds for the petition for cancellation is that publically available renewal applications by Velum states that it organizes Laser sailing events, providing Laser event NOR´s as proof.
Serious doubt is being cast on that statement, with Kirby´s attorney Wes Whitmyer, a former North American Optimist Class President and active Melges 20 owner saying today he can find no one in the North American sailing community who has ever heard of Velum organising any sailing events anywhere in the world.
This legal challenge no doubt explains why Kirby had recently filed for US ownership of the Laser trademark, a move which had puzzled close observers of the unfolding drama.
(the full copies of this material has been published on the Improper Course blog
Below is the copy of the Petition to cancel the Laser trademark ownership in the U.S.
IN THE MATTER OF U.S. Trademark Registration No. 3459524
Bruce Kirby, Inc., :
Petitioner, :
: Cancellation No.
v. : [not yet assigned]
Velum Limited, :
Registrant. :
Bruce Kirby, Inc. ('Petitioner') hereby petitions to cancel U.S. Trademark Registration No. 3459524 for the mark LASER on the following grounds:
1. Bruce Kirby, Inc. is a Connecticut corporation having a place of business at 213 Rowayton Avenue, Rowayton, CT 06853.
2. According to the records of the USPTO, the current owner of U.S. Trademark Registration No. 3459524 is Velum Limited, a corporation organized under the laws of Antigua and Barbuda, with an address P.O. Box 1699 17, rue du Cendrier Geneva 1 SWITZERLAND 1211.
USPTO records do not disclose an assignment of the registration. USPTO records indicate that the domestic representative for the service of process is Ilan Nordmann, with an address c/o Dory Ventures, 25 Van Zant Street, Norwalk, CT 06855.
3. Petitioner is actively engaged in the field of sailing and the design, manufacture, production, and licensing of boat designs for use in international sailing competitions including the Olympics, and has an interest in maintaining the integrity of those competitions, including without limitation, the trademarks used in connection with those competitions.
4. On information and belief, Registrant has ceased use of the trademark LASER in connection with the services recited in U.S. Trademark Registration No. 3459524 and intends not to resume such use.
5. On information and belief, Registrant has allowed numerous third parties to use the trademark LASER in connection with the services identified in U.S. Trademark Registration No. 3459524 without authorization or license for a period of greater than three (3) years.
6. Records of the USPTO indicate that the Statement of Use that Registrant filed in order to obtain issuance of U.S. Trademark Registration No. 3459524 consisted of specimens used by a third party without authorization or license of Registrant.
7. Registrant knew at the time that it filed the Statement of Use in the prosecution of U.S. Trademark Registration No. 3459524 that the specimens of use were not being used by Registrant or by an authorized user or licensee. Registrant submitted the unauthorized and unlicensed trademark specimens of use in the prosecution of U.S. Trademark Registration No. 3459524 for the purpose of obtaining issuance of a trademark registration to which it was not entitled under the Lanham Act and USPTO regulations.
The USPTO would not have issued U.S. Trademark Registration No. 3459524 absent the submissions of the unauthorized and unlicensed specimens of use submitted with Registrant's Statement of Use.
8. As a result of its non-use of the LASER trademark in connection with the services identified in U.S. Trademark Registration 3459524 with an intention not to resume use, Registrant has abandoned the trademark LASER with respect to those services within the meaning of 15 U.S.C. § 1127.
9. As a result of its allowing third parties to use the LASER trademark in connection with the services identified in U.S Trademark Registration No. 3459524, Registrant has abandoned the trademark LASER with respect to those services within the meaning of 15 U.S.C. § 1127.
10. As a result of its knowing submission of a third party use of its trademark as purposed use in support of registration, Registration committed fraud in the prosecution of U.S. Trademark Registration No. 3459524.
WHEREFORE, Petitioner prays that the Trademark Trial and Appeal Board grant its petition and cancel U.S. Trademark Registration No. 3459524.
Respectfully submitted,
May 7, 2013 /s/ Wesley W. Whitmyer, Jr.
Date Wesley W. Whitmyer, Jr.
Andy I. Corea
Brian L. Repper
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moto RKD PC
A downloadable game for Windows, Mac OS X, and Linux
Do you remember Tomy Turbo Racing Dashboard from 1983 and SEGA moto champ from 1973? moto ЯKD dash is a recreation of the toy 'moto' made in bulgaria in 1980, followed by an lcd version in '81 and an arcade game in '87.
This is a remake of the mobile game moto ЯKD dash for desktop computers.The main change is the horizontal screen orientation (16X9) that includes:
- new main menu
- new in game HUD
- post processing effects
- keyboard / 360 controller support
- more features to come
Please check out the mobile version, since this game is not a substitute
Game features
HOMEPAGE << music, wallpapers, info
Please vote on Steam Greenlight
iTunes, Google Play, SlideME, Amazon
Thanks for looking!
|294 days ago
|In development
|Windows, Mac OS X, Linux
|RKD zone
|3D, Arcade, bike, classic, Fast-Paced, moto, race, racer, Racing
|Player count
Log in with your itch.io account to leave a comment.
Gamepad gliches on Linux and macOS are gone!!!
The space bugs have been eliminated!
Any gamepad similar to the xbox or DualShock should work on any OS. The update is coming very soon, besides the fixes, there are visual changes and an addition to the gameplay for bigger scores.
Good morning to everyone...
Thank you very much guys!!!
A quick overview of the world of moto RKD dash, a miniature electromechanical model.
The SHMUP syndrome... too much art for a very short game. See the teams.
An interesting view on things in this update.
For the final level of the game we needed to abruptly change the the pace and close with something unexpected. As with everything in life, things happen at the right moment and Approxima Astrolabos joined the game with a tune he just recorded the day before and it was a perfect fit. His ability to find the ghost in the machine and reveal it to us through sound is unparalleled by anyone else.
Just close your eyes and experience the final level by listening to JAPANTECH.
Hey guys, just managed to 'finish' the PC version of moto RKD dash and submitted it to Steam Greenlight, please, please check it out and vote!!
To celebrate the Steam Greenlight submission i'll make the iOS and Android version FREE on the 1st of april, no joke!!


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Set of three hand-printed holiday cards with rhinestone detailing. Comes with three envelopes and a mesh carrying case.
Jeremy Slagle is a designer with an eccentric vision that marries established classics with the avant-garde. His designs are reminiscent of art nouveau and old-world kitsch. Spellbound by films, innovation in the world of high fashion and fantasies of exploring the world, Jeremy often seeks inspiration from the subdued moments of everyday. When he's not creating with a mouse and keyboard, he can also be found using a brush, sewing machine, oven or glue gun, a.k.a man's best friend. Jeremy also works with local theater companies, both on stage and off. He strives to lead an imaginative life, and create work that will delight, entertain and charm his audience. He attended college in Philadelphia and currently resides in the quietude of southeastern Pennsylvania.
*7" long, 5" wide


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5740 Hickory Dr., Millbrook, AL 36054
- $119,900
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- Est: $444/month
Estimate Your Monthly Payment
Data provided by Informa Research Services. Payments do not include amounts for taxes and insurance premiums. The actual payment obligation will be greater if taxes and insurance are included. Click here for more information on rates and product details.
- Mortgage Center
- Beds: 3
- Baths: 2 Full
- Single Family Home
- 1,702 sq ft
3 bedroom, 2 bath brick home that uses its 1700 square feet very well. The foyer has 2 coat/storage closets. Formal dining room or study/office just off the foyer. Large eat in kitchen with gas FIREPLACE, great for friends and family to gather around. Large sunroom or living room off the kitchen. Huge laundry room with cabinets and counter tops for storage or a work area. The bedrooms are all big enough for double, even queen sized beds. Metal roof. Relatively new paint. New flooring throughout. No carpet. New windows. Did I mention the POOL? A new liner is being installed. Huge FENCED yard. Detached GARAGE with concrete floor, shelves, and electricity. This is a great buy in Millbrook. Great house, yard, workshop, and a pool! What more could you ask for this close to Montgomery, Maxwell/Gunter AFB in the less busy Millbrook setting. Click here to learn more about this listing.
- Year Built: 1974
- 1+ Years on site
- Single Family Home
- Beds: 3
- Baths: 2 Full
Listing Details
- Kitchen
- Yes
- Appliances
- Dishwasher, Range, Refrigerator
- Flooring
- Carpeted, Linoleum, Tile, Vinyl
- Parking
- Detached Garage
- Features
- Brick Exterior, Metal Exterior, Patio, Vinyl Exterior
- Cooling
- Ceiling Fan, Central Air, Central Cooling
- Heating
- Gas
- Assessed Taxable Amount
- $13,036
- Tax Amount
- $398
- Last Transaction Date
- 05/09/2012
- Last Transaction Purchase Price
- $81,500
- Property Type
- Single Family Residence
- Bedrooms
- 3
- Bathrooms
- 1
- Rooms
- 6
- Floors
- 1
- Home Size (Sqft)
- 1,702
- Lot Size (Sqft)
- 18,000
- Lot Size (Acres)
- 0.41
- Year Built
- 1974
- Units
- 1
- Pool
- Plastic Lined
- Fireplace
- Single
- Parking
- Garage
- Heating System
- Forced Air
- Cooling System
- Central Air
- Exterior Type
- Brick/Wood
- Foundation Type
- Retaining Wall
- Roof Type
- Asphalt
Public Facts: As provided by County Assessor and Recorder offices. May not reflect recent additions or improvements. If you see any errors, the best way to get the records updated is to contact your local county records office. If any of the information in this section conflicts with property information provided by a listing agent or broker, agent-provided information should be deemed more reliable.
Local Info
| Median Household Income
| Median Years In Residence
| Median Homeowner Age
| Households with Children
| Percent of Homes Rented
Nearby Elementary Schools
- Airport Road Intermediate Sch
- 384 Blackmon Farm Ln
- Coosada Elem Sch
- 5260 Airport Rd
- New Life Christian Academy
- 4230 Highway 14
Nearby Primary Schools
- Prattville Kinderg Sch
- 338 1st St
Nearby Middle Schools
- New Life Christian Academy
- 4230 Highway 14
- Millbrook Middle Jr High Sch
- 4228 Chapman Rd
- Victory Baptist School
- 5480 Main St
Nearby High Schools
- New Life Christian Academy
- 4230 Highway 14
- Victory Baptist School
- 5480 Main St
- Stanhope Elmore High Sch
- 4300 Main St
These are the closest schools to your requested location. Proximity does not guarantee enrollment eligibility. Please consult your real estate agent or school district to confirm the schools you are zoned to attend.
Mortgage Rates
Data provided by Informa Research Services. Payments do not include amounts for taxes and insurance premiums. The actual payment obligation will be greater if taxes and insurance are included. Click here for more information on rates and product details.
Property Contact Info
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