Kleeberg et al v. Eber et al
| Daniel Kleeberg, Lisa Stein and Audrey Hays |
| Wendy Eber, Lester Eber, Canandaigua National Corporation, Eber Bros. & Co., Inc., Eber Bros. Wine & Liquor Metro, Inc., Eber Bros. Wine and Liquor Corporation, Eber-Connecticut, LLC, Alexbay, LLC and Elliot W. Gumaer, Jr. |
| 1:2016cv09517 |
| December 9, 2016 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Lewis A. Kaplan |
| Stockholders Suits |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
Follow case documents by RSS
Available Case Documents
The following documents for this case are available for you to view or download:
| Document Text |
|---|
Filing
485
OPINION AND ORDER re: 467 MOTION for Sanctions against Underberg & Kessler, LLP and John Herbert filed by Audrey Hays, Daniel Kleeberg, Lisa Stein. For the above-stated reasons, Plaintiffs' motion for sanctions at ECF No. 467 is DENIED. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 10/23/2023) (vfr)
|
|
Filing
455
FINAL JUDGMENT. It is now, therefore, ORDERED, ADJUDGED, AND DECREED that: The Eber Defendants are hereby enjoined and restrained from undertaking any acts to exercise the Transfer Restriction with respect to, or to otherwise obstruct, the final distribution of all EB&C stock from the corpus of the Allen Eber Trust CNB shall distribute the stock of EB&C one third to Wendy Eber in her capacity as executrix of Lester's estate, one third to Audrey Hays, one sixth to Daniel Kleeberg, and one sixth to Lisa Stein. The Eber Defendants forthwith shall execute such documents and take such actions as CNB or the plaintiffs reasonably may request, or that the Court may order, to effectuate that distribution. The Alexbay Foreclosure is vo id and set aside. The Court hereby imposes a constructive trust for the benefit of EBWLC on all property, whether personal or real, tangible or intangible, vested or contingent, that the Eber Defendants have received, or hereafter may receive, di rectly or indirectly, or to which the Eber Defendants now have, or hereafter obtain, any right, title or interest, directly or indirectly, that is traceable to the Alexbay Foreclosure including, without limitation, stock in Eber Metro and Eber-CT, as well as all distributions made to the Eber Defendants in relation thereto with prejudgment interest as set forth in the Opinion. The Eber Defendants shall transfer and forthwith assign to EBWLC all such property that they now have or hereafter may obtain. The August 2012 Employment Agreement is void and set aside. The Court hereby imposes a constructive trust for the benefit of EBWLC on all property, whether personal or real, tangible or intangible, vested or contingent, that the Ebe r Defendants have received, or hereafter may receive, directly or indirectly, or to which the Eber Defendants now have, or hereafter obtain, any right, title or interest, directly or indirectly, that is traceable to the August 2012 Employment Agre ement including, without limitation, the 2,000 shares of Eber Metro stock issued to Wendy Eber thereunder. The Eber Defendants shall transfer and forthwith assign to Eber Metro all such property that they now have or hereafter may obtain. The Cour t awards prejudgment interest at the annual rate of nine percent on any distributions received by the Eber Defendants in relation to the 2,000 shares of Eber Metro stock. The Polebridge Transaction is void and set aside. The Court hereby imposes a constructive trust for the benefit of Eber Metro on all property, whether personal or real, tangible or intangible, vested or contingent, that the Eber Defendants have received, or hereafter may receive, directly or indirectly, or to which the Eber Defendants now have, or hereafter obtain, any right, title or interest, directly or indirectly, that is traceable to the Polebridge Transaction including, without limitation, any stock in Eber-CT. The Eber Defendants shall transfer and forth with assign to Eber Metro all such property that they now have or hereafter may obtain. The Court hereby imposes a constructive trust for the benefit of Eber Metro on all property, whether personal or real, tangible or intangible, vested or cont ingent, that the Eber Defendants have received, or hereafter may receive, directly or indirectly, or to which the Eber Defendants now have, or hereafter obtain, any right, title or interest, directly or indirectly, that is traceable to the Slocum M aine Call Option including, without limitation, all stock in Slocum Maine. The Eber Defendants shall transfer and forthwith assign to Eber Metro all such property that they now have or hereafter may obtain. The Court awards prejudgment interest at the annual rate of nine percent on any distributions received by the Eber Defendants in relation to the Slocum Maine stock. The 750 shares of Class B junior preferred EBWLC stock issued to Lester Eber on February 15, 2017 are cancelled and deemed to have had no value. The Southern Consulting Agreements are void and set aside. The 2006 Notes are void and set aside. The April 2012 Employment Agreement is void and set aside. The Estate of Lester Eber shall pay EBWLC $4,903,957.06 of princi pal disgorgement (the net amount after credit for $803,265.86 owed by EBWLC to Lester) and $5,177,789.49 of interest through the date of the verdict-$10,081,746.60 combined-plus interest on any unpaid balance thereafter at the annua l rate of nine percent. The Estate of Lester Eber shall pay Eber-CT $3,367,278.86 of principal disgorgement and $1,960,172.16 of interest through the date of the verdict -$5,327,451.02 combined -plus interest on any unpaid balance thereafter at the annual rate of nine percent. Wendy Eber shall pay Eber-CT $2,481,413.97 of principal disgorgement and $1,382,729.14 of interest through the date of the verdict-$3,864,143.11 combined-plus interest on any unpaid ba lance thereafter at the annual rate of nine percent. The Estate of Lester Eber shall pay Slocum Maine $10,000 of principal disgorgement and $7,416.99 of interest through the date of the verdict -$17,416.99 combined - plus interest on any unpaid balance thereafter at the annual rate of nine percent. Wendy Eber shall pay Slocum Maine $10,000 of principal disgorgement and $7,416.99 of interest through the date of the verdict-$17,416.99 combined-plus interest on a ny unpaid balance thereafter at the annual rate of nine percent. Wendy Eber shall pay plaintiffs $650,000 of punitive damages, split evenly among the three Plaintiffs-$216,666.66 to each-plus interest on any unpaid balance thereafter a t the annual rate of nine percent. Wendy Eber is prohibited from serving as an officer or director of EB&C, EBWLC, Eber Metro, or Slocum Maine until March 30, 2025. Notwithstanding anything to the contrary in this Judgment, nothing herein enjoin s, restrains or otherwise prohibits the Eber Defendants from litigating this action or any appeal of any order or judgment issued in this action. In accordance with Federal Rule of Civil Procedure 65( d)(2), the injunctive and restraining provisi ons of this Judgment are binding upon the parties; their officers, agents, servants, employees, and attorneys; and other persons who are in active concert and participation with any, and have actual notice, of the foregoing. This Judgment finally disposes of all claims between and among Plaintiffs and the Eber Defendants. All other defendants have settled the action. Accordingly, the Clerk shall enter this Judgment as a final judgment and close the case. This Court retains jurisdiction of this case and over these parties for purposes of enforcing and resolving any disputes concerning this Judgment. (Signed by Judge Lewis A. Kaplan on 4/7/23) (yv)
|
|
Filing
451
OPINION. When Allen Eber entrusted the family business to his only son for the benefit of all his progeny, he scarcely could have imagined the greed and disloyalty that would follow. The purpose of the testamentary trust was to ensure the equal e njoyment of each of Allen Eber's offspring and their descendants in the fruits of the family business. Somewhere along the way, that guiding principle was cast aside. For over a decade, Lester and Wendy repeatedly violated their fiduciary dut ies in order to extract as much value from the family business as possible to the detriment of their kin, whose interests they were bound to protect. This decision begins the process of effectuating Allen Eber's intent - undoing as much of d efendants' selfish behavior as equity and law demand. As I wrote at the outset, "[t]he parties have been battling in this Court for years." That battle now is over. The foregoing constitute the Court's findings of fact and conclusions of law. The plaintiffs shall submit a proposed form of final judgment no later than April 5, 2023. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 3/30/23) (yv)
|
|
Filing
442
ORDER granting 440 Letter Motion to Seal. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 9/12/22) (yv)
|
|
Filing
432
ORDER SCHEDULING SETTLEMENT STATUS CONFERENCE: A telephonic Settlement Status Conference in this matter is hereby scheduled for Tuesday, November 23, 2021 at 11:30 a.m. Counsel for the parties are directed to call Judge Parker's court confe rence line at the scheduled time. Please dial (866) 434-5269, Access code: 4858267. SO ORDERED. ( Telephone Conference set for 11/23/2021 at 11:30 AM before Magistrate Judge Katharine H. Parker.) (Signed by Magistrate Judge Katharine H. Parker on 11/16/2021) (vfr)
|
|
Filing
424
ORDER. In order to facilitate the Court's efficient consideration of the documentary evidence, the Court would be grateful for the joint submission by plaintiffs and defendants of a native Excel spreadsheet listing all of the respective tria l exhibits submitted by both sides. The spreadsheet shall contain four columns headed Ex. No., Date, Description, and Comment, respectively. Each row shall contain the data pertaining to one exhibit. The Ex.No. column shall for each exhibit shall indicate the numerical or alphabetical designation of either a plaintiffs' exhibit (prefixed by the letters PX) or a defendants' exhibit (prefixed by the letters DX). The date and description columns shall contain the date and a descript ion of the exhibit. The Comment column shall be left blank. The description and comment columns shall be formatted as text columns. Such a file would permit the Court to sort by date, description and/or exhibit number. The joint submission shall be on a previously unused and blank flash drive. The Court would appreciate submission of the file by November 17. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 11/10/21) (yv)
|
|
Filing
411
ORDER granting 410 Letter Motion for Extension of Time to File. Granted. So Ordered. (Signed by Judge Lewis A. Kaplan on 10/19/21) (yv)
|
|
Filing
409
ORDER: granting 399 Letter Motion to Seal. Granted to the extent that the parties shall submit further post trial submissions electronically and in hard copy to chambers on dates previously set but may delay filing them on CM-ECF until the date for filing of the reply brief. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 10/18/2021) (ama)
|
|
Filing
386
ORDER SCHEDULING SETTLEMENT CONFERENCE: A settlement conference in this matter is scheduled for Tuesday, November 9, 2021 at 10:30 a.m. in Courtroom 17-D, United States Courthouse, 500 Pearl Street, New York, New York. Parties must attend in-perso n with their counsel. Corporate parties must send the person with decision making authority to settle the matter to the conference. Counsel and parties are required to follow the Court's COVID-safety protocols and should review the Court' ;s website in advance of the conference for the most up to date information. The parties are instructed to complete the Settlement Conference Summary Report and prepare pre-conference submissions in accordance with the Judge Parker's Individu al Rules of Practice. Pre-conference submissions must be received by the Court no later than November 2, 2021 by 5:00 p.m. SO ORDERED. ( Settlement Conference set for 11/9/2021 at 10:30 AM in Courtroom 17D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Katharine H. Parker.) (Signed by Magistrate Judge Katharine H. Parker on 9/24/2021) (vfr)
|
|
Filing
385
ORDER: 1. Dkt. 95 is modified to substitute for the defendant, the late Elliott W. Gumaer, Jr., Lucia Gordon Gumaer and Patrick D. Martin solely in their capacities as Executors under the will of Elliott W. Gumaer, Jr. All references to the Estate o f Elliott W. Gumaer, Jr. in the caption and in papers subsequent to Dkt. 95 are deemed to be references to Lucia Gordon Gumaer and Patrick D. Martin solely in said capacities. 2. Dkt. 326 is modified to substitute for the defendant, the late Lester E ber, Wendy Eber in her capacity as Executor under the will of Lester Eber. All references to the Estate of Lester Eber in the caption and in papers subsequent to Dkt. 326 shall be deemed to be references to Wendy Eber in her capacity as Executrix und er the will of Lester Eber.3. Henceforth, the caption in this case is amended by replacing references to the Estate of Lester Eber and to Wendy Eber with the following "WENDY EBER, in her individual capacity and as Executrix u/w/o LESTER EBER." SO ORDERED. *** Party The Estate of Lester Eber terminated. (Signed by Judge Lewis A. Kaplan on 9/23/2021) (vfr) Modified on 9/23/2021 (vfr).
|
|
Filing
376
ORDER: Plaintiffs and defendants, respectfully, each promptly shall transmit to the Court in PDF, machine readable format all statements of direct testimony and all exhibits to be offered by each of them. Arrangements for transmission shall be made with the Court's deputy, Mr. Mohan, on Tuesday or as soon thereafter as possible. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 9/4/2021) (kv)
|
|
Filing
348
OPINION AND ORDER ON PARTIES' MOTIONS FOR RECONSIDERATION re: 332 MOTION for Reconsideration . filed by The Estate of Lester Eber, Alexbay, LLC, 322 MOTION for Reconsideration re; 314 Memorandum & Opinion, Set Deadlines filed by Audrey Hays, Daniel Kleeberg, Lisa Stein. For the reasons stated above, Plaintiffs' motion for reconsideration (ECF No. 322) is GRANTED in part and DENIED in part and the Estate's motion for reconsideration (ECF No. 332) is DENIED in its entirety. This case is now ready for trial. A telephonic conference is hereby scheduled for April 15, 2021 at 12:30 p.m. Counsel for the parties are directed to call the Court's conf erence line at the scheduled time. Please dial (866) 434-5269, access code 4858267. ( Telephone Conference set for 4/15/2021 at 12:30 PM before Magistrate Judge Katharine H. Parker.) (Signed by Magistrate Judge Katharine H. Parker on 3/25/2021) (mro) Modified on 3/25/2021 (mro).
|
|
Filing
345
ORDER TO PRODUCE CONFIDENTIAL DOCUMENTS: Counsel for the Eber Defendants submitted a letter to the Court at ECF No. 344 requesting that the Court issue an order compelling the Eber Defendants to provide a confidential settlement agre ement that arose out of a related case in the District of Connecticut. According to the letter, Plaintiffs do not oppose this request. Insofar as the settlement agreement covers expenses incurred in this action and to the extent that infor mation is relevant to the instant action and responsive to Plaintiffs' discovery demands, the Court hereby orders the Eber Defendants to produce the requested documents in accordance with the parties' protective order (ECF No. 67). (Signed by Magistrate Judge Katharine H. Parker on 3/17/2021) (mro)
|
|
Filing
343
ORDER PROVIDING ADDITIONAL DETAILS ON UPCOMING ORAL ARGUMENT: Per ECF No. 342, oral argument is scheduled to take place in the above-captioned action this coming Friday. In order to provide the parties with some guidance as to the scope of the upcomi ng argument, the court notes a set of topics the parties should be prepared to discuss below.The topics/questions to be addressed will include, but may not be limited to: Whether beneficiary consent is an affirmative defense that must be specifically pleaded and whether Defendants did so in light of affirmative defense numbers 1, 3, 4 or 15, or any others that may be applicable; The duties Lester owed to Plaintiffs at the time of the 2012 foreclosure transaction and whether those duties depend o n the ownership structure of EBWLC; Whether the ownership structure of EBWLC materially impacts who could have consented to the 2012 foreclosure transaction; If the Court were to unwind the 2012 foreclosure transaction and create a constructive trust , how that ruling would impact the remaining claims in the case; and Whether the Trust's ownership interest in EBWLC could impact the share distribution ordered by the Surrogate Court. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 3/1/2021) (nb)
|
|
Filing
342
ORDER SCHEDULING TELEPHONIC ORAL ARGUMENT: A telephonic oral argument in this matter is hereby scheduled for Friday March 5, 2021 at 2:00 p.m. Counsel for the parties are directed to call Judge Parker's AT&T conference line at the scheduled time. Please dial (866) 434-5269, access code: 4858267. ( Telephone Conference set for 3/5/2021 at 02:00 PM before Magistrate Judge Katharine H. Parker.) (Signed by Magistrate Judge Katharine H. Parker on 2/22/2021) (mro)
|
|
Filing
314
OPINION AND ORDER ON THE PARTIES' MOTIONS FOR PARTIAL SUMMARY JUDGMENT re: 262 MOTION for Partial Summary Judgment . filed by Eber-Connecticut, LLC, Eber Bros. Wine and Liquor Corporation, Eber Bros. Wine & Liquor Metro, I nc., Alexbay, LLC, Wendy Eber, Lester Eber, Eber Bros. & Co., Inc., 263 MOTION for Partial Summary Judgment . filed by Audrey Hays, Daniel Kleeberg, Lisa Stein, 258 MOTION for Summary Judgment . filed by Estate o f Elliot W. Gumaer, Jr., 300 JOINT LETTER MOTION to Stay re: 258 MOTION for Summary Judgment . and the portion of Plaintiffs' Motion for Summary Judgment concerning the Gumaer Estate, addressed to Magistrate Judge K atharine H. Parker from Brian C. Br filed by Audrey Hays, Daniel Kleeberg, Lisa Stein. For the reasons stated above, Plaintiffs Motion for Partial Summary Judgment (ECF No. 263) is denied. The Eber Defendants' Motion for Partial Summary Judg ment (ECF No. 262) is granted only insofar as Plaintiffs' Declaratory Judgment Claim (Count VI) is dismissed; it is otherwise denied. The remainder of the Eber Defendants' Motion for Partial Summary Judgment is denied. The Estate of Elli ot Gumaer's Motion for Partial Summary Judgement (ECF No. 258) is hereby terminated without prejudice to renew pending the Estate's settlement with Plaintiffs, and its motion to stay (ECF No. 300) is denied as moot. The Eber Defendants ar e hereby directed to file a letter by no later than August 31 2020, advising the Court of the status of Lester Eber's Estate Proceeding and the appointment of an executor for the Estate. The Court will schedule a conference with all parties a s soon as practicable once counsel appears for the Estate of Lester Eber and Alexbay. In light of the fact that the Estate of Lester Eber and Alexbay are currently unrepresented in this action, the deadline for the parties to file motions for reconsideration are extended to September 15, 2020. SO ORDERED. (Motions due by 9/15/2020.) (Signed by Magistrate Judge Katharine H. Parker on 8/10/2020) (jca)
|
|
Filing
237
OPINION AND ORDER: For the above reasons, the Court respectfully directs that the Clerk of Court drop Canandaigua National Bank & Trust Company as a plaintiff and, instead, add it as a nominal intervening defendant in this action. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 6/18/2019) (ks)
|
|
Filing
224
OPINION & ORDER re: 154 MOTION to Disqualify Counsel Underberg & Kessler from representing Eber Bros. & Co., Inc. and Eber Bros. Wine and Liquor Corporation. filed by Audrey Hays, Daniel Kleeberg, Lisa Stein. For all the reason s set forth above, Plaintiffs' Motion to Disqualify U&K (Doc. No. 154) is DENIED. The Eber Defendants are hereby directed to file a letter on ECF by no later than June 7, 2019, confirming whether they complied with this Court's Order dated November 7, 2018. (Doc. No. 146.). SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 5/29/2019) (ks)
|
|
Filing
222
OPINION AND ORDER re: 164 MOTION to Amend/Correct the Complaint. filed by Audrey Hays, Daniel Kleeberg, Lisa Stein. Plaintiffs' Motion to Amend the SAC is granted in its entirety. As discussed at the May 20, 2019 conference, Plaintiffs shall have until June 5, 2019 to make minor corrections to the TAC and file the same on ECF. Defendants shall have until June 19, 2019 to file their Answer. SO ORDERED., (Amended Pleadings due by 6/5/2019.) (Signed by Magistrate Judge Katharine H. Parker on 5/23/19) (yv)
|
|
Filing
216
OPINION AND ORDER REGARDING PLAINTIFFS' SECOND MOTION TO COMPEL AND PLAINTIFFS' REDACTION MOTION. Plaintiffs' Second Motion to Compel is GRANTED IN PART and DENIED IN PART. For the parties' convenience, the Court has attached a chart reflecting its decisions with respect to each document on the privilege log. By May 24, 2019, Defendants shall produce those documents that are not protected by privilege. With respect to the Redaction Motion and the redactions applied to th e documents filed at docket entries 98, 135, and 138, the Court's Order at docket entry number 148 is hereby MODIFIED. Plaintiffs' counsel is directed to file unredacted versions of the documents filed at docket entries 98, 135, and 138 on ECF to allow the Clerk of Court to substitute them for the redacted versions of those documents currently on ECF. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 5/13/19) (yv)
|
|
Filing
215
OPINION AND ORDER. CNB's Motion for a Protective Order is granted. This resolves the issues raised in Docket Nos. 208, 209, and 213. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 5/9/19) (yv)
|
|
Filing
200
OPINION AND ORDER re: 187 MOTION to Intervene , dated February 5, 2019. (Motion has been re-filed per 2/15/19 notice to attorney to re-file document). filed by Canandaigua National Bank & Trust Company. The Court grants CNBs motio n for permissive intervention. The Court finds there is no need to reach the issue of whether CNB met the standard for intervention as of right. The Court finds it need not reach the issue of whether CNB has a right to interplead in this action be cause CNB is already a party to this action by virtue of the Court granting its Motion to Intervene and, thus, already has the right to fully litigate its position in this action. See, e.g., Krishna v. Colgate Palmolive Co., No. 90-cv-4116 (CSH), 1991 WL 125186, at *3 (S.D.N.Y. July 2, 1991) ("An intervenor has equal standing with the original parties and is entitled to litigate fully on the merits.") (internal quotation marks omitted). For the sake of achieving a comprehensive resolution of this Motion, CNB is hereby directed to file a proposed pleading addressing the relief it seeks in this action by no later than April 17, 2019. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 3/28/19) (yv)
|
|
Filing
57
MEMORANDUM AND OPINION re: 48 MOTION to Dismiss for Lack of Jurisdiction . filed by Elliot W. Gumaer, Jr. The Court has considered all of movants' contentions, including that with respect to the sufficiency of the complaint as to punitive damages, and concluded that they lack merit.Accordingly, the motions to dismiss [DI 38, DI 48] are denied in all respects. (Signed by Judge Lewis A. Kaplan on 7/6/2017) (js)
|
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the New York Southern District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
