IFC Interconsult, AG v. Safeguard International Partners, LLC
IFC Interconsult, AG v. Safeguard International Partners, LLC
Opinion of the Court
MEMORANDUM
IFC Interconsult AG (“IFC”) and Safeguard International Partners, LLC (“Safeguard”) entered into a written agreement dated July 25, 1996 (as amended, the “Agreement”) whereby IFC agreed to act as placement agent for a proposed investment limited partnership, the Safeguard International Fund, L.P. (“Fund”). Safeguard agreed to act as General Partner in the Fund. Pursuant to the Agreement, IFC would seek limited partner capital commitment subscriptions for the Fund from investors identified in the Agreement’s exhibits. In return for its services, IFC was contractually entitled under the Agreement to compensation in the form of placement and bonus fees as well as certain future rights.
Although IFC raised several hundred million dollars in subscriptions for the Fund, it did not receive any compensation from Safeguard. In January 2002, IFC notified Safeguard that it had assigned
Shortly after the demand for arbitration was filed, Safeguard and the Fund filed a federal action seeking a declaratory judgment on the arbitrability of this fee dispute, but their complaint was dismissed on jurisdictional grounds. On October 3, 2002, Safeguard and the Fund filed a complaint in the Court of Common Pleas for Philadelphia County also seeking a declaratory judgment. Safeguard and the Fund argued that George Carter, the Fund, and CFC were not parties to the Agreement and therefore could not participate in the arbitration proceedings. The Honorable Gene D. Cohen, presiding over case, held a hearing on Safeguard’s petition for a preliminary injunction to stay the arbitration proceedings pending resolution of claims in the state court. On November 1, 2002, Judge Cohen issued an Order that stated in relevant part:
Upon consideration of the Petition for Preliminary Injunction ... the Court finds that Safeguard International Fund, LP, Carter Financial Corporation, and George H. Carter are not proper parties to the arbitration agreement between Safeguard International Partners, LLC, and Interconsult, AG. It is therefore ORDERED and DECREED that the said Petition is granted and all arbitration proceedings involving Safeguard International Fund, LP, George H. Carter and Carter Financial Corporation are STAYED. It is further ordered that Safeguard International Partners, LLC and IFC Interconsult, AG, shall proceed as agreed by filing in Philadelphia for arbitration....
Order dated November 1, 2002, Court of Common Pleas for Philadelphia County Commerce Program (Case No. 04980).
On January 16, 2003, IFC filed an amended demand for arbitration naming only Safeguard as the respondent, in accordance with Judge Cohen’s ruling. After consultation with and comment by the parties, the AAA appointed Stephen W. Armstrong, Esq., Bennett G. Picker, Esq. and Theodore R. Mann, Esq. (“the Panel”) to serve as arbitrators. In the course of the arbitration, Safeguard admitted that it did not pay the fees set forth in the Agreement, but argued that IFC was no longer entitled to those fees because Safeguard had terminated its agency with IFC for cause due to IFC’s alleged fraud.
On June 9, 2004, IFC filed a Petition to Confirm Arbitration Award in the U.S. District Court for the Eastern District of Pennsylvania. This court has jurisdiction pursuant to Title 28 U.S.Code Section 1332. In response, Safeguard filed a Motion to Dismiss Petition to Confirm Arbitration Award pursuant to Federal Rule of Civil Procedure 12(b)(6). In this Motion, Safeguard asserts that CFC and George Carter indirectly participated in the arbitration proceedings in violation of Judge Cohen’s November 1, 2002 Order.
The issue now before the court is whether it should abstain from deciding the Petition to Confirm Arbitration Award filed by IFC given the pending state court action with jurisdiction over the arbitration. Because the court finds that, as a legal question, the pending state action is not parallel and does not take precedence over the federal action, it will not abstain from resolving the pending Petition to Confirm and Motion to Dismiss. Safeguard argues that because the Court of Common Pleas had issued a pre-arbitration order interpreting the Agreement, any issues regarding the validity or enforcement of the arbitration award should be also resolved in Common Pleas Court. See Mem. in Support of Rule 12(b)(6) Motion at 9. As support, Safeguard cites the abstention doctrine as outlined by the Supreme Court in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). See Mem. in Support at 11. In Colorado River, the Court stated that in certain circumstances, principles of “judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation” warrant federal abstention from pending state court matters. The factors identified by the Colorado River Court for deciding the “appropriateness of dismissal in the event of an exercise of concurrent jurisdiction” include (1) which court first assumed jurisdiction over property; (2) “the inconvenience of the federal forum;” (3) “the order-in which jurisdiction was obtained by the concurrent forums;” (4) and the “desirability of avoiding piecemeal litigation.” Colorado River, 424 U.S. at 818, 96 S.Ct. 1236 (internal citations omitted).
Applying the factors identified in Colorado River, this court finds that federal abstention is not appropriate. First, there is no state court jurisdiction over any
In its argument in favor of federal abstention, Safeguard analogizes its position to that of the defendant in Vulcan Chemical Technologies, Inc. v. Barker, 297 F.3d 332 (4th Cir. 2002). In that case, Barker sued Vulcan in California state court, but Vulcan successfully petitioned that court to compel Barker to submit to arbitration instead. Following an arbitration award in favor of Barker, Vulcan filed a federal action in Virginia seeking to vacate the award. Id. at 335. Shortly after the federal suit was filed, the same California state court upheld the award and denied another motion by Vulcan to vacate the award. Two weeks later, however, the federal district court ruled in favor of Vulcan and vacated the award. The Court of Appeals for the Fourth Circuit held that the district court should have abstained pursuant to Colorado River since the federal forum was inconvenient, the district court decision created piecemeal, conflicting litigation, and the state court had an ongoing parallel proceeding dealing with the same issues that had been filed before the federal action and had already reached a conclusion. Id. at 340-42. In addition, the Court of Appeals noted that Vulcan and Barker’s contract had stated that the parties would submit to arbitration administered by the California court system, making resolution of the claim in federal court in the Western District of Virginia
The court declines to abstain from exercising its jurisdiction in this case and finds that the arbitration was conducted within the rules established by the AAA and with no apparent objection by either party during the proceedings and therefore the Award is confirmed.
. Details of these allegations are not relevant here, but in short, Safeguard alleged that IFC committed fraud by profiting in a sale of its interests in the Fund to the Basel Landschaft-licke Pensionkasse through a transaction involving an off-shore shell corporation.
. Safeguard states that CFC and George Carter’s illicit participation is evidenced by the fact that Carter actually paid IFC's arbitration costs, IFC’s president did not attend all the arbitration hearings, and George Carter pleaded his personal losses to the Panel. See Memo, in Support of Safeguard’s Rule 12(b)(6) Motion at 5-6.
Reference
- Full Case Name
- In the Matter of the ARBITRATION BETWEEN IFC INTERCONSULT, AG, and SAFEGUARD INTERNATIONAL PARTNERS, LLC
- Cited By
- 1 case
- Status
- Published