B.C. Produce, Inc. et al v. Lowell Bros. & Bailey, Inc. et al

Filing 21

Judge George A. OToole, Jr: ORDER entered. (Danieli, Chris)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-10794-GAO
B.C. PRODUCE, INC.; BOSTON TOMATO & PACKAGING, LLC; COOSEMANS
BOSTON, INC.; FORLIZZI & BIMBER, INC.; GRANT STANTON PRODUCE COMPANY,
INC.; GREGG DZIAMA, INC.; J. BONAFEDE, CO., INC.; M. CUTONE MUSHROOM CO.,
INC.; MATARAZZO BROS. CO., INC.; PETER CONDAKES COMPANY, INC.; S. STROCK
& CO., INC.; and STATE GARDEN, INC.,
Plaintiffs,
v.
LOWELL BROS. & BAILEY, INC.; ANDREW C. SEXENY; and GEORGE E. SEXENY,
Defendants.

ORDER
May 10, 2012 at3:45 p.m.

O’TOOLE, D.J.
Upon the application of the Plaintiffs for a temporary restraining order, the Court finds
and rules as follows:
1. Plaintiffs have established that Lowell Bros. & Bailey, Inc. [hereinafter “Lowell
Bros.”] has failed to make timely payment of amounts due for Produce sold and delivered in the
principal amount of $450,489.01, that interest accrues on this sum at the rate of 12% or 18% per
annum and that attorneys fees are recoverable by Plaintiffs. There is a reasonable likelihood that
judgment will be recovered in the amount of not less than the balance claimed plus substantial
interest and attorneys fees. Plaintiffs have also demonstrated a reasonable likelihood of recovery
as beneficiaries of the statutory trust as set forth in the Perishable Agricultural Commodities Act,
7 U.S.C. § 499a, et seq [hereinafter “PACA”] against Lowell Bros. and against Andrew C.

Sexeny and George E. Sexeny in their individual and representative capacities [collectively, the
“Defendants”].
2. It is the policy of Congress, as enunciated at 7 U.S.C. §499e(c)(1), to prevent a burden
on commerce caused by the dissipation of the assets of brokers and dealers subject to PACA
and to preserve the assets for payment to commodity sellers. PACA “is a remedial statute that
should be given a liberal construction in favor of promoting Congress’ intended purpose.” Hiller
Cranberry Prods., Inc. v. Koplovsky, 165 F.3d 1, 6 (1st Cir. 1999).
3. The Defendants have demonstrated an ongoing disregard for the prompt payment
mandate of PACA in that they have failed to make timely payment to multiple vendors. Lowell
Bros. has incurred substantial PACA Trust debt and ceased operations without making provision
for the payment of the PACA Trust debt or preservation of assets of the PACA Trust. Further
dissipation of the PACA Trust assets is likely.
6. The facts establish a dissipation of PACA Trust assets which is likely to continue and
cause Plaintiffs irreparable harm unless the relief hereinafter set forth is granted.
7. Inasmuch as Lowell Bros. has dissipated and continues to dissipate assets of the PACA
Trust and is holding or should be presently holding PACA Trust assets for the benefit of
Plaintiffs as adequate security, no bond is required of Plaintiffs.

IT IS HEREBY ORDERED:
8. Lowell Bros., Andrew C. Sexeny, and George E. Sexeny and the agents, servants,
employees, representatives, fiduciaries and attorneys of each are hereby enjoined and restrained
from in any way paying, accepting payment, conveying, transferring, granting, hypothecating,
mortgaging, assigning, selling, releasing, offsetting or in any way changing the status quo of any

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a. assets, monies and property, derived directly or indirectly from the sale of
perishable agricultural commodities, in the possession, custody or control of
Lowell Bros.; and
b. assets and property of Lowell Bros., real, personal and mixed, tangible and
intangible, wherever located, standing in its name or names or in the name of any
other persons in any capacity whatsoever, including but not limited to the
proceeds from the sale of assets;
c. any assets, monies and property in which Andrew C. Sexeny or George E.
Sexeny have an interest; provided, however, that they may continue to make
payment of their ordinary and usual personal living expenses and make payment
for costs and attorneys fees arising from the present action; and
d. until such time as the foregoing monies and property total $500,000.00, which
monies shall either be
i. paid over to Plaintiffs’ counsel, or
ii. set aside in a separate interest-bearing account for the benefit of
Plaintiffs as to which both Plaintiffs’ counsel and Defendants’ counsel
shall be authorized signatories.
A hearing on Plaintiffs’ Motion for Injunctive Relief (dkt. no. 4) and Motion for
Attachment of Real Estate (dkt. no. 6) is set for May 17, 2012 at 2 p.m. in Courtroom 9 before
Judge George A. O’Toole, Jr..
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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