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TABFG, LLC v. Pfeil

United States Court of Appeals, Seventh Circuit

March 20, 2014

TABFG, LLC, Plaintiff-Appellee,
v.
RICHARD PFEIL, Defendant-Appellant

Argued April 15, 2013.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:08-cv-06979 -- Robert W. Gettleman, Judge.

For Tabfg, Llc, Plaintiff - Appellee: Alan S. Madans, Rothschild, Barry & Myers, Chicago, IL; Kenneth A. Sweder, Sweder & Ross Llp, Boston, MA.

For Richard Pfeil, Defendant - Appellant: David S. Ruskin, Horwood, Marcus & Berk Chartered, Chicago, IL.

Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.

OPINION

Page 821

Rovner, Circuit Judge.

TABFG, a limited liability corporation, brought suit against Richard Pfeil alleging, among other claims, tortious interference with a contract. After a bench trial, the district court entered judgment in favor of TABFG, and awarded a judgment in the amount of $957,659.68, comprised of a principal amount of $674,121.87 plus prejudgment interest of $279,530.36 and costs of $4,007.45. Pfeil now appeals that determination, and we affirm.

In April 2003, a joint venture was formed between two limited liability companies, TABFG and NT Prop Trading (" NT Prop" ), for the purpose of trading securities for financial gain. TABFG was the entity responsible for all of the trading for the joint venture, and was comprised of three individual members and managers, Cal Fishkin, Igor Chernomzav, and Kent Spellman. NT Prop was tasked with funding the venture, and included two members who were also limited liability corporations--NT Financial and Pfeil Commodity Fund (" Pfeil Commodities" ). The sole member, manager and owner of Pfeil Commodities was Richard Pfeil (" Pfeil" ), who was known as the " money man" for the joint venture and is the defendant in this case. NT Prop was managed by two individuals, William Anthony, who was Pfeil's attorney, and Larry Nocek.

Under the terms of the Joint Venture Agreement, NT Prop would provide the money to fund the trading by TABFG. The agreement called for an initial funding in the amount of $2 million, followed by a subsequent infusion of an additional $2.5 million. At first, this arrangement appeared to function well. NT Prop provided the initial $2 million in start-up money,

Page 822

which came from Pfeil Commodities, and the traders proved adept at their craft, earning profits of $3.4 million.

A problem arose, however, which threatened the ability of the joint venture to continue in its mission. Before forming TABFG, Fishkin and Chernomzav (hereinafter the " Traders" ) were employees of Susquehanna International Group LLP (" SIG" ), a company that engaged in the trading of equities, futures, and other derivative products and securities. In that employment, the Traders were signatories to an employment contract that contained restrictive covenants which limited their ability to compete with their former employer upon leaving their jobs. The parties to the Joint Venture Agreement were aware of those limitations, and provided in that agreement for the payment of attorneys' fees and other costs necessary to escape the strictures of that employment contract. Toward that end, the Traders filed a lawsuit against SIG seeking a declaratory judgment to invalidate the restrictive covenants. SIG responded by adding TABFG and NT Prop to their lawsuit as additional counterclaim defendants seeking disgorgement of all profits, thus creating consternation among the parties to the joint venture that the money in that venture could be imperiled. On September 16, 2003, SIG obtained an injunction in a Pennsylvania district court enjoining the Traders for nine months after their departure from SIG from trading any security that they had traded within the last three months of their employment with SIG, and enjoining them from associating with each other on a securities trading business for nine months. That prevented the Traders from working together to trade on behalf of TABFG, and spelled the end of the joint venture because their combined trading prowess was the cornerstone of the venture. The Joint Venture Agreement provided that " [u]pon termination of the Joint Venture, a Reconciliation Statement will be prepared by NT Prop and delivered to the parties within fifteen (15) days after termination, and all profits and the Hold Back, if any, shall be concurrently distributed to the respective parties." The district court concluded that the venture effectively ended when the injunction was entered, and that the terms of the Joint Venture Agreement required a disbursement of funds as of October 2, 2003. The district court found that the Joint Venture Agreement provided for an even split of the profits between TABFG and NT Prop less expenses and payments. A letter of October 3, 2003, from counsel for the Traders sought a distribution of funds under the Joint Venture Agreement, and noted that a refusal by NT Prop to distribute such finds would constitute a breach. The Traders in that letter also expressed a willingness to continue to trade under the Joint Venture Agreement, but acknowledged that such a course of action might not be in the best interest of the parties.

Numerous discussions ensued between the parties as to the amounts due from NT Prop to TABFG under the agreement, and NT Prop created spreadsheets in an effort to detail the amounts owed. The parties failed to agree as to the final accounting, but Fishkin on behalf of TABFG literally begged Pfeil to distribute what was owed to ...


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