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Balshe LLC and the Simon Law Firm v. Alan J. Ross and Save Associates

July 7, 2011

BALSHE LLC AND THE SIMON LAW FIRM, PLAINTIFFS,
v.
ALAN J. ROSS AND SAVE ASSOCIATES, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Defendants*fn1 come now and ask that I reconsider my prior ruling. Two years ago, Defendants, Plaintiffs, and Meyer-Chatfield Corporation ("MC") entered into a Settlement Agreement to resolve litigation regarding a dispute over the purchase of interest in a patent describing a system of pooling life insurance policies into a trust in order to create a predictable income stream for the trust owners (the "Patent"). Pursuant to the Settlement Agreement, Defendants were required to transfer their interest in the Patent to Institutional Pooled Benefits LLC ("IPB"). To date, Defendants have failed to completely transfer their interest.

This court retained jurisdiction to enforce the terms of the Settlement Agreement and the parties filed cross-motions to compel compliance with the Settlement Agreement. Defendants had refused to transfer their interest in the Patent to IPB alleging that certain provisions contained in the IPB Limited Liability Company Agreement ("Operating Agreement") were inconsistent with and contrary to the terms and conditions set forth in the Settlement Agreement. I ordered Plaintiffs to strike from the Operating Agreement the provision barring Ross's right to dissuade, and ordered Ross to transfer his remaining interest in the Patent to IPB in compliance with the Settlement Agreement. Defendants come now with a motion to reconsider.

Defendants' motion to reconsider highlights certain facts that were not clear in their original motion. Likewise, they clarify certain arguments. Defendants' motion to reconsider was fully briefed. Additionally, an evidentiary hearing was held on March 11, 2011 in regard to the issue of shared expenses. The parties then filed supplemental briefs following the evidentiary hearing. Each side has had ample opportunity to create a full record. As I noted at the evidentiary hearing, it appears that the "kitchen sink" approach has been adopted by some, if not all, parties. For the following reasons, Defendants' motion to reconsider is granted in part.

II. PRELIMINARY MATTERS

A. Motion To Strike

Plaintiffs filed a motion to strike exhibits from Defendants' reply, and Defendants' request for new relief. Specifically, Defendants' reply purports to offer evidence that was not presented to the court during the evidentiary hearing. Exhibits A, B, and C-1 are unauthenticated documents and Exhibit C is a declaration from a witness who was not present to be cross-examined. While I am sympathetic to Plaintiffs' arguments, given the history of the case, I decline to strike these exhibits. In considering their weight, however, I have taken into account the arguments raised in the motion to strike.

Defendants also seek new relief from the court in its reply, asking that the court "overturn" an alleged patent assignment and strike the testimony of the witnesses that Plaintiffs presented at the hearing. I decline to strike the testimony of the witnesses who testified at the evidentiary hearing. I likewise, decline to offer Defendant any relief outside of, or in addition to, the motion to reconsider my prior order.

B. Motion for Attorneys' Fees

Plaintiffs ask that I award them attorneys' fees given Defendants refusal to honor their obligation to transfer the subject patent under the Settlement Agreement. Given the contentious nature of this dispute, and the myriad of issues that have required resolution, some more meritorious than others, I decline to grant such costs or fees.

III. FACT STATEMENT

The action underlying the contested Settlement Agreement involved a dispute over the purchase of interest in a patent describing a system of pooling life insurance policies into a trust in order to create a predictable income stream for the trust owners (the "Patent"). In 1997 Ross filed an application for the Patent with the United States Patent and Trademark Office ("USPTO"). Ross assigned a one-half interest in the Patent to an affiliate of the AXA Group, and thereafter, Balshe and Defendants reached an agreement regarding the purchase of Ross's interest in the Patent. The underlying lawsuit was filed when Ross allegedly attempted to sell the Patent to a third party. The contested Settlement Agreement ("Settlement Agreement") was reached on June 26, 2008. The parties to the Settlement were Balshe and The Simon Law Firm (collectively referred to as "Balshe" in the Settlement Agreement), Ross, SAVE, and the Meyer-Chatfield Corporation. This court retained jurisdiction to enforce the terms of the Agreement.

As part of the Settlement Agreement the parties agreed to form a new entity "Newco" for the purpose of commercially exploiting the Patent. Newco is now to be known as "Institutional Pooled Benefits LLC" or "IPB." The Settlement Agreement established the rights and obligations of the parties regarding the ongoing ownership, management, and administration of IPB. The Settlement Agreement stated that the form and jurisdiction in which IPB would be organized/created would be mutually agreed upon by Balshe and MC, and that the ownership and management of IPB would be in accordance with the Settlement Agreement. Ross and SAVE agreed to execute all necessary documents to assign to IPB right, title and interest held in the Patent. The Settlement Agreement also required that IPB use its best efforts to acquire all right, title, and interest in the Patent.

To date, Ross has transferred only a partial interest in the Patent to IPB. The current dispute surrounds the transfer of Ross's remaining interest in the Patent to IPB, and the formation of IPB pursuant to the Settlement Agreement. Because Ross contends that provisions contained in the draft IPB Operating Agreement are inconsistent with terms set forth by the Settlement Agreement, he has refused to transfer his remaining Patent interest to IPB.

IV. DISCUSSION

A. Defendants' Objections to Specific Language.

First, Defendants assert that a statement made in the "Statement of Facts" section of the Memorandum Opinion and Order was in error. Specifically, the Order states that "Balshe and Defendants reached an agreement regarding the purchase of Ross' interest in the Patent." Defendants contest that an agreement was ever reached. Plaintiffs do not object to an amendment to the Order stating that: "Plaintiffs allege that Balshe and Defendants reached an ...


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