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Incorrect. You must prove your claim of an affirmative defense. Meaning you must prove you had knowledge of whatever it is you are claiming prior to your actions that you are being sued over. You must also prove that the knowledge you possessed was true and accurate. Burden of proof for a successful affirmative defense is on the one claiming the AD.
Posting the litigation information for the litigation between GDSI vs Rontan et al. Has nothing to do with the financial arrangement between GDSI and it’s financier. If you can show me the docket entry where this agreement is made to be a part of this “legal proceeding” I will stand corrected.
The litigation is a legal proceeding. The contract between GDSI and the litigation financier is not a legal proceeding. Therefore the terms used to describe the transaction is not based on a “legal decision” or ruling by a court or jury and the “legal definition” that you posted is irrelevant.
On what grounds? None.
Precisely why they can not use the affirmative defense. They did not perform their responsibilities in accordance with the spa. They had no knowledge of GDSIs financial situation and to this date have yet to prove GDSI did not have any funding available at the time of their breach.
The affirmative defense is a defense that must be asserted very early on during litigation or it can be barred by laches. Does not mean it has any validity at all.
You must have prior knowledge in order to support your claim of an affirmative Defense which Rontan did not have and to this date there has been no demand by Rontan for GDSI to prove that funding was available by an alternate source.
For Rontan to assert that GDSI could not fund the transaction. Rontan was obligated under the terms of the contract to attempt to execute the terms of the contract and upon learning of the inability of GDSI to fund their contractual obligations could have withdrawn from the execution of the SPA at the time of share exchange. This did not happen. Rontan without notice or cause withdrew. This is not an affirmative defense. This is a breach of contract which is recognized and stated by the judge in his rulings.
This would be fine except one little problem. This is not a legal proceeding. It’s a contract for a loan to finance a legal proceeding.
Nice attempt at bait and switch tho. Quite entertaining. But wholly inaccurate.
Delgado don’t write filings. He signs them. The lawyers write them. Their only misconstrued for those that want them to be. Same for the SPA.
When Rontan and the Bolzan’s are found to have breached ( which the judge has already asserted has happened) and their bogus claim of an affirmative Defense is rejected. They will also be responsible for GDSIs litigation costs in addition to any other damages awarded. That’s part of what actual damages are.
If you think they have a shot at proving their affirmative Defense you might want to read up on what that entails and then compare the aspects of that defense with the rulings and arguments they (Rontan et al) made in their respective MSJs.
A successful affirmative defense for Rontan is not supported by the arguments made and subsequent orders rendered.
Their best course of action is to settle and avoid a multi faceted awards matrix. A settlement allows them to settle on a fixed amount and not leave it up to a jury to set an award and then to tack on other actual expenses of litigation.
Why does this matter?
Let’s say the jury is sympathetic to Rontan et al defense but sees the facts favor GDSI in that a breach occurred at a time when there was no way for Rontan to have any knowledge of any other aspects of GDSIs financial position. The jury could award a $1 award. The problem for Rontan is that now there are additional costs. All expenses that GDSI has incurred are now part of the judgement. So if GDSI spent $15m on the litigation the final order would be for $15,000,001.00.
That’s why you settle even if you believe you would otherwise win. If you are 90% sure it’s not worth the risk. The same theory applies to GDSI. Even if they think there is a 90% chance to prevail on all claims and the total award could be north of $100m. It’s a better outcome to settle for a 100% chance of getting a smaller award. The settlement will be for a figure in the middle. The odds of a trial at this point is very slim at best.
“Litigation proceeds” refers to the proceeds received to litigate. Not proceeds awarded as part of the settlement or judgement against defendant.
The funds will be paid from any judgement except that now that the judge has set damages recoverable as “actual damages”. This will include the cost of litigation. So any judgement in GDSIs favor will include the cost of litigation on top of the awarded amount leaving GDSI to pay the 27.5% out of the awarded amount.
Litigating expenses are $5m for GDSI, litigation investor provides $5m. If GDSI is awarded judgement it would also be awarded an additional $5m for litigation expenses. GDSI would repay the investor the $5m. An additional 27.5% ($1.375m) would be paid out of the awarded damages.
Who cares what the initials of the investor is as long as the Bill is paid.
No lawyer required for mediation/settlement. Only corporations in court proceedings.
Mediation is for the parties involved, they “may” have council present and represent their position if they so chose. The whole point of mediation is to reduce case load on the courts and cost to the litigants.
That would be entirely up to the judge at that point.
The more immediate issue for Rontan is securing council going forward. If they fail to secure council then the judge has no choice but to render an order of Default in favor of GDSI.
The Bolzan brother would be allowed to represent themselves as would any other individual in the US.
It was another delay tactic. Remember. The judge has seen the financials and knows the money is there to pay the lawyer. (They have tried unsuccessfully to seal those records).
Probably see some settlement news in the near future. Looks like the judge has had enough of the delays.
If that were even remotely true they would not have bothered hiring an attorney in the first place. They would have just certified their financial position to GDSI et al and that would have ended it.
Bolzan’s have money. Everyone knows it and soon they will have less of it!
Judgements and settlements always take years to collect. That’s just the way it is. Fortunately a judgement is then an asset to the awardee. Which they can leverage if they chose.
That’s why you see all these companies out there offering to get you your money now vs waiting on a structure settlement or a lump sum payout at some future date.
These type of lenders exist in the corporate world also. Maybe 40-70 cents on the dollar but that’s better than nothing or waiting 25 years.
Fortunately for GDSI, the Bolzan’s took monies from the Rontan accounts and those monies are recoverable in any judgement rendered in the US via the Brazilian government and banking system. There are treaties.
The Brazilian banks and government are not going to risk souring relations with the US over a couple of multi-millionaires that have been scamming their economy for decades.
I think Rontan and The Bolzan’s have done a pretty good job of that already.
Yep Rontan is toast.
Does anyone really think the Bolzans would have been fighting so hard to seal the financial records if there were no money?
The money is there.
IMHO and as previously stated, The majority of the settlement will be paid by the Bolzan’s in actual Damages. Rontan the company will be responsible for very little of the settlement.
I am sure the financial records they are/were attempting to seal are the ones showing the extent of the embezzlement/skimming of the companies accounts by the Bolzan’s.
Unopposed MOTION to Withdraw as Attorney by Carlos F. Osorio, Evelyn Barroso and Raul A. Reichard for / by Grupo Rontan Electro Metalurgica, S.A. Responses due by 12/24/2019.
Just like a few months ago. Rontan is going to use the ploy of we had to change lawyers so we need more time ploy.
How do you change lawyers you say? Don’t pay them. Not paying by choice is much different than not having the money to pay.
There is no evidence to indicate their is an inability to pay. This is clearly an unwillingness to pay. If good ol’ Osorio and his two buddies were such great lawyers and were winning the brothers probably would have paid them.
Hope the judge denied their motion for a continuance ( this will be the next motion we see from Rontan et al)
GDSI handed another favorable ruling by the judge as Rontan attempts to narrow electronic discovery from the original agreement. Judge denies Defendants Motion to modify.
DE 186
PAPERLESS ORDER MEMORIALIZING DISCOVERY RULING: Having heard extensively from counsel during several discovery hearings regarding the issue of e-discovery production in this case, the Court denies Defendants' most recent motion to tailor or narrow the previously agreed-upon ESI search terms and parameters. Defendants have proffered no valid basis from departing from what the parties agreed upon two months ago. Defendants broadly claim that they are experiencing "excessive" hits returning irrelevant and/or duplicative documents, however Defendants have failed to offer any concrete examples in support of this claim. Defendants shall complete their review and production of documents using all of the agreed-upon ESI search terms and parameters by or before 5:00 P.M. EST on Monday, January 6, 2020. The Court strongly encourages the parties to continue working together in a good faith effort to complete this final document production as efficiently as possible. Signed by U.S. Magistrate Judge Dave Lee Brannon on 12/6/2019.
Who said they filed a claim?
You don’t “file”a claim of affirmative Defense. You “make”, “assert” or “raise” a claim of affirmative defense.
See rules of civil procedure for a more detailed explanation. Or post #43523. For a very general guidance on how a counter-claim is made.
GL
Rontan’s claim is useless. They can’t claim to have acted in a particular way because of actions of the plaintiff when they had no knowledge of plaintiffs actions at the time.
Just like their worthless MSJs this action is not supported by any of the evidence. Facts matter.
Settlement in < 60 days.
You can’t use an affirmative defense for information you did not know at the time of breach.
Your statement is not supported by the depositions or evidence.
There is no statement in any of the depositions that indicates Rontan would have known about financing issues in accordance with Globals ability to retain financing prior to its breach. Therefore affirmative defense will not apply.
You won’t ever see any jury instructions. It will be settled in Mediation prior to trial.
Settlement most likely to be announced late January.
Trial was moved to Feb after the Q was submitted.
It was scheduled to take place right before the trial in Dec. I have not seen anything where that has been moved, yet.
I would guess that the Bolzan’s will put it off as long as possible so it would not surprise me to see it moved to a date closer to the scheduled trial date.
This is how the jury would decide this case should it make it to trial.
Question: was there a breach?
Yes
Who initiated the breach?
Rontan by virtue of not transferring the shares as contacted.
Question was there a satisfaction on GDSIs part for condition 3.1.1 and 3.1.2.
Yes by waiver afforded under 3.1.11
Question was there a satisfaction on Rontan’s part to fulfill or waive 3.1.1 or 3.1.2?
No. Rontan did not fulfill nor did they issue a waiver in writing as is contracted in 10.1 or 10.2.
Having found for the plaintiff they will move to damages. I don’t have the numbers so can’t even guess the value or how much monies the Bolzan’s skimmed from the coffers. It was enough to get the attention of the Brazilian government according to some reports.
I’d say with the denial of the MSJs Rontan et al will be a lot more amicable in the next rounds of mediation/settlement talks.
That’s incorrect. It established that there is a dispute over who’s benefit the condition was for. There is no dispute over the condition being waved. There is a dispute over who had the right by benefit to waive it.
3.1.11 established GDSIs sole discretionary right to waive any condition.
10.1 established that for (Rontan) to waive a condition or to remove GDSIs expressed right by condition to waive, that it would have to be done in writing.
In contract law. A condition waived is considered a condition met or deleted/removed from a contract. Therefore there is no action for failing to perform the condition once waived.
The only court analysis that matters is the FINAL ruling:
Rontan’s MSJ Conditions Precedent is “DENIED” (DE 181)
This supports my “version” well enough.
Had conditions precedent not been met, it would have been easy for Rontan to prove that to the Judge, this motion would not have been denied.
3.1.11 purchaser May at its sole discretion waive any condition of its own due diligence.
There is no such provision for Rontan to waive any conditions at its sole discretion.
Rontan would have had to submit in writing a challenge to GDSIs waiver afforded under 3.1.11. They submitted no such claim.
Rontan’s MSJ, Conditions Precedent DENIED
What may have been missed?
Little piece some may have missed is that the judge made it clear that both parties essentially agree that a breach has occurred since no matter when the closing date should have been. It has passed and the shares did not transfer as agreed.
9.2 is unenforceable in that it provides for liquid damages and actual damages are available elsewhere in the contract language specifically 10.7 (Breach).
ii specific performance. Rontan’s MSJ denied
II Rontan’s second MSJ “Conditions Precedent” Denied
I agree on the settlement part. I am not convinced GD still wants control of the company after the Bolzan’s have siphoned off all its assets and has a bunch of creditors hanging on for payment.
Will be interesting to see what happens from here on.
My feelings are that Bolzan’s will cut their losses before trial. Maybe sooner than later as opposed to incurring additional legal fees. A loss at trial will allow GD to ask for and probably receive restitution for litigation expenses.
This then means that Bolzan’s are on the hook for the original $5m and only the guaranteed return of 50% or $2.5m is GDs responsibility to be paid out of the damages awarded. So $2.5m and not the full $7.5m would come out of the actual settlement/award.
It’s official. Docket entries are in. Both Rontan and GDSIs MSJs have been denied. The one that was “granted in part” was due to the remedy being available via actual damages. In short. Can’t get both Liquid and actual damages.
Rontan has two choices now. Settlement or take their chances at trial and convince a jury that 3.1.11 of the Conditions was somehow removed from the contract without written or even verbal communication.
All in all. This went very well for GDSI.
I was responding to the post. “37m shares”, Thats 5%. You are welcome to correct his post if ya like.
So basically a 5% annual increase in the OS after the notes are completely converted?
Isn’t this the whole point of equity financing?
Personally I don’t find a 5-10% annual increase that concerning. When it gets up to 25+. Then there is a problem.
Skeptical *. Sheesh!
I have to say. I was scriptural of anything in triple digit damages but after reading the SPA and the guidelines for damages if there is a breach. You could very well be correct.
I don’t have all the numbers but the value(actual damages) of everything associated with the SPA can be sought. Not just the 15% of the $100m purchase.
It will get more and more interesting as we get closer to trial date. If Bolzan’s want their shenanigans kept out of the public eye they will settle.
That’s sounds about right as GDSI argues in its opposition to Rontans MSJ that they are not seeking Liquidating Damages as Rontan is the one trying to call it liquidating damages.
Your interpretation is incorrect. It is exactly what the Judges order says.
The last paragraph of (DE49)
“Plaintiff alleges the three elements of a breach of contract: the existence of a contract, a material breach, and damages resulting from the breach. But the Complaint fails to address the KMPG opinion or any other conditions precedent, and thus it fails to meet even the low pleading standards set by the Federal Rules. Defendants Motion to Dismiss must be granted for Plaintiffs failure to state a claim upon which relief can be granted.”
ORDERED AND ADJUDIED that:
(1) Defendants' Motion to Dismiss is GRANTED.
(2) Plaintiffs Complaint is DISM ISSED WITHOUT PREJUDICE.
(3) Plaintiff is directed to file any Amended Complaint on or before May 31, 2019
The Amended complaint address the KMPG opinion and the remaining conditions of the SPA. Exactly as required.
The judge stated that while GDSI made a claim of breach they did not specifically address each condition spelled out in the SPA.
The amended complaint which contains the full and exact original complaint is amended to include language that specifically addresses each condition.
Any understanding or interpretation to the contrary is incorrect. It’s explicitly stated in docket entry (49)
Wrong again. Read the order. Read the docket entry in your sticky.
The Judge wanting more information to rule on is NOT a procedural error.
Wrong again…Something that’s required by law is is not the judge allowing a case to move forward and take up the courts time when it’s DOA. No judge in any court is ever going to give a party a chance to waste their time in a litigation with no merit.
If you read the filings and the judges order and the subsequent amended complaint you will find that there was NO ruling on the merits of the complaint. It was a ruling on the manner in which the argument was made.
The amended complaint contains the original complaint plus additional substantiating documents and arguments. There was no special consideration given to GDSI in the filing of the amended complaint it was a matter of due process.
The new 10-Q sheds a little light on this issue and also shows that the funding was provided in connection with GDSIs complaint surviving the attempted MTD. Looks like the new trial date gives about 60-80 days till we can expect a settlement announcement since I’m sure Rontan and the Bolzan’s will wait as long as they can.
My guess is Bolzan’s probably pony up the majority of the settlement funds since their the ones with the most to lose. The company (Rontan) will probably end up with a very low contribution to the settlement. I doubt that GDSI management is interested in taking a position in Rontan as a business going forward since the Bolzan’s have skimmed the accounts dry and have left many creditors holding the bag.