My fellow Boston blogger Lee Gesmer has posted about a recent decision here in Massachusetts that is too good to pass up, even though it is not an international judicial assistance case. The case is AngioDynamics, Inc. v. Biolitec AG (D. Mass. 2013). According to the First Circuit’s decision in the case, here were the facts.
Biolitic, Inc., a US subsidiary of Biolitic AG, a German firm, sold medical equipment to AngioDynamics. The sales contract contained an indemnification clause requiring Biolitic, Inc. to indemnify AngioDynamics for patent infringement claims. AngioDynamics was sued for patent infringement and settled the case; it then obtained a $23 million judgment against Biolitic, Inc. on the indemnification clause in a New York lawsuit. AngioDynamics then sued Biolitic AG, Wolfgang Neuberger (the CEO and majority shareholder of Biolitic AG), and others in Massachusetts on veil-piercing, fraudulent transfer, and other theories. The claim, according to the court, was that the German parent had “looted [Biolitic Inc.] of more than $18 million to render [it] judgment-proof and to move [its] assets beyond reach.” The defendants answered. Biolitic AG raised personal jurisdiction as a defense, but it’s not clear that Neuberger did: his answer only claims that the court “lacks jurisdiction over the person of Defendants BAG [i.e., Biolitic AG] and Biomed.”
AngioDynamics then sought a temporary restraining order and a preliminary injunction to enjoin a merger that Biolitic AG was about to undertake with its Austrian subsidiary; it claimed that the merger would make the judgment unenforceable because American judgments cannot be enforced in Austria.Judge Zobel granted the motion and enjoined the merger. Here’s where things get crazy. The defendants consummated the merger anyway. AngioDynamics moved for an order holding the defendants in contempt of court, and the court issued an order to show cause that specifically required Neuberger to appear personally at the hearing. Neuberger refused, on the grounds that he was “afraid that the Court may grant ADI’s request to incarcerate him until Biolitec AG relocates its corporate domicile back to Germany.” And so Judge Ponsor issued a warrant for his arrest and imposed an escalating and continuing fine that will begin at $1 million per month and reach $8 million per month. The judge also requested that the United State Attorney prosecute Neuberger for criminal contempt.
It’s somewhat shocking to encounter this kind of disobedience to an injunction. Neuberger has thumbed his nose at the judge, and I think the judge’s strong reaction is entirely justified. I agree with Lee, who writes: “Bottom line, Biolitec should reverse that merger post haste. What were they thinking?”