Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Case of the Day: AngioDynamics v. Biolitec

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.

Wolfgang Neuberger
The contemnor
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?”

Ted Folkman

6 responses to “Case of the Day: AngioDynamics v. Biolitec”

  1. Larry Storer

    I heard today (09.26.13) that there has been a major development in the AngioDynamics-Biolitec case, but can’t get either company to comment. Is anyone aware of a recent development?

    Reply
    1. Ted Folkman

      Hi, Larry,

      Thanks for the note. I checked the docket. About a month ago, the judge rejected the defendant’s motion for relief from his earlier orders, calling one of their lawyers’ arguments “breathtakingly silly.” Essentially, the defendants argued that even though they had violated the order, the plaintiffs had not been harmed, so no harm, no foul. The judge pointed out what every first-year law student knows: once an injunction has been issued, the merits of the injunction are not part of the analysis on a motion for contempt.

      The defendants appealed to the First Circuit on September 20.

      Reply
  2. Letters Blogatory's Top Ten Posts for 2013 | Letters Blogatory

    […] Case of the Day: AngioDynamics v. Biolitec, April 29, 2013. I suspect this case is on the list because of the fascination with Wolfgang Neuberger, who thumbed his nose at a federal judge’s order and may come to regret it. […]

    Reply
  3. Ted Folkman

    The axe has finally fallen on Neuberger and Biolitec. Following their continued refusal to obey court orders to produce witnesses (including Neuberger) for depositions and to obey the court’s preliminary injunction, Judge Ponsor, relying on FRCP 37 and the court’s inherent authority, entered a default judgment as to liability and scheduled a hearing on damages. The moral of the story: do not disobey a federal judge’s orders lightly.

    Reply
  4. Update: Angiodynamics v. Biolitec | Letters Blogatory

    […] I happened to see that the appeal of the contempt sanctions in one of my favorite cases of the day, AngioDynamics v. Biolitec, 946 F. Supp. 2d 205 (D. Mass. 2013), was recently argued. As you might recall, this was the case in which a German company had been […]

    Reply
  5. Case of the Day: AngioDynamics v. Biolitec | Letters Blogatory

    […] there are two cases of the day. In one, the First Circuit affirmed the default judgment against my favorite contemnor, Wolfgang Neuberger, and others, as a sanction for failing to participate in discovery. I’m not going to cover […]

    Reply

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