Boston Tomato & Packaging, LLC, et al. v. Bostonia Produce, Inc., et al.

Filing 129

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered that intervenor Vardakostas not be required to disgorge the $120,000 payment he received from Boston in July 2011 as a bona fide purchaser for value and further ORDERING that Vardakostas ma y, on or before April 24, 2015, show cause, if any there be, why he should not be held liable to the PACA judgment creditors for his participation in a breach of trust in connection with the purchase of the Bostonia trucks through Atlas, and consequently disgorge the amount of $40,000, failing which an order of disgorgement in that amount will be entered. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BOSTON TOMATO & PACKAGING,
LLC, LISITANO PRODUCE, INC.,
JOHN CERASUOLO CO., INC.,
FORLIZZI AND BIMBER, INC.,
GREGG DZIAMA INC., and STATE
GARDEN, INC.,

)
)
)
)
)
)
)
Plaintiffs,
)
)
GARDEN FRESH SALAD CO., INC., )
COOSEMANS BOSTON INC., HOP
)
HING PRODUCES, INC., GRANT
)
STANTON PRODUCE CO., INC.,
)
MUTUAL PRODUCE CORPORATION,
)
TRAVERS FRUIT COMPANY INC.,
)
M. CUTONE MUSHROOM COMPANY
)
INC., B.C. PRODUCE, INC.,
)
ARROW FARMS, INC., DISILVA
)
FRUIT DISTRIBUTORS, INC.,
)
INFINITE HERBS, LLC, and
)
MATARAZZO BROTHERS CO., INC., )
)
Intervening Plaintiffs, )
)
v.
)
)
BOSTONIA PRODUCE, INC.,
)
STEVEN SPLAGOUNIAS, and
)
NIKITAS SPLAGOUNIAS,
)
)
Defendants,
)
)
----------------------------)
)
DEMETRIOS VARDAKOSTAS,
)
)
Intervenor.
)

CIVIL ACTION NO.
12-11865-DPW

MEMORANDUM AND ORDER
April 7, 2015
This action arises from the failure of produce dealer
Bostonia Produce, Inc. (“Bostonia”), to pay for wholesale

quantities of produce purchased from the plaintiff produce
sellers.

In October 2012, plaintiffs brought suit under the

Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C.
§ 499e, against Bostonia and its officers Steven Splagounias and
Nikitas Splagounias.

The PACA requires produce dealers who

purchase produce on credit to hold the produce and its proceeds
in trust for the unpaid seller.

7 U.S.C. § 499e(c)(2).

On

February 4, 2013, I entered judgment against defendants in the
amount of $1,022,061.84 for outstanding payments on produce
purchased from the plaintiffs, plus $55,750.30 in pre- and postjudgment interest and $87,826.40 in costs and attorneys’ fees.
In an effort to recover funds sufficient to satisfy that
judgment, plaintiffs moved for disgorgement of $120,000 paid in
July 2011 by Bostonia to intervenor Demetrios Vardakostas, a
former part-owner, officer and employee of Bostonia.

I treated

plaintiffs’ motion for disgorgement as a motion for summary
judgment and denied the motion as such on April 8, 2013.

Boston

Tomato & Packaging, LLC v. Bostonia Produce, Inc., No. 12-11865DPW, 2013 WL 1793858 (D. Mass. April 8, 2013).

Although I

concluded Vardakostas could not establish the $120,000 was
anything other than PACA trust assets, I found a genuine dispute
remained as to whether Vardakostas was shielded from disgorgement
as a bona fide purchaser for value.

Id. at *5.

Because the

transfer of trust assets to Vardakostas was plainly “for value,”

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the only issue remaining was whether Vardakostas had actual or
constructive knowledge that he received payment from Bostonia in
breach of the PACA trust.

Id.

I held an evidentiary hearing on the issue, and the parties
thereafter submitted supplementary affidavits and memoranda,
although none provided or even ordered a transcript.

In their

supplementary materials, plaintiffs requested disgorgement of an
additional $40,000, based on Vardakostas’s alleged participation
in diverting to Steven Splagounias the proceeds from the sale of
Bostonia trucks to Atlas Produce and Provisions (“Atlas”), an
entity of which Vardakostas is the sole member and proprietor.
Based on the evidentiary record developed, I now conclude
that plaintiffs are not entitled to disgorgement of the $120,000
payment from Bostonia to Vardakostas.

I will, however, require

Vardakostas to show cause, if any there be, why he should not pay
the judgment creditors $40,000 as a result of his apparent
participation in diversion of trust assets, that is, the proceeds
from the sale to Atlas of trucks previously owned by Bostonia.
I. BACKGROUND
A.

General Background
The basic facts underlying the issue of disgorgement were

developed in the summary judgment record and are not in dispute.
From January 1980 through July 2010, Vardakostas was a 50%
owner of Bostonia, where he also served as a Director, Secretary
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and employee.

In April 2010, Vardakostas agreed to sell his

shares to Steven Splagounias and Bostonia for $1.6 million.

As

part of the stock sale, Bostonia executed a note promising to pay
Vardakostas $400,000 plus a fixed 5% interest rate in four
installments over four years.
as collateral.

Certain Bostonia property served

The note was also guaranteed by Steven, Nikitas,

Konstantinos and Helen Splagounias, as memorialized in an
indemnification agreement dated July 9, 2010.

As a condition of

the sale, Vardakostas agreed not to compete with Bostonia for two
years from the sale, although the agreement allowed him to
communicate with Bostonia customers regarding personal matters.
On or about July 9, 2011, Bostonia timely made the first
payment due under the note in the amount of $120,000.

Bostonia

has not made any other payments to Vardakostas.
From July 2010, following his employment with Bostonia,
until July 2011, Vardakostas ran a refrigeration company called
Olympic Refrigeration, Inc.

In the fall of 2012, Vardakostas

returned to the produce business by founding Atlas.
B.

Evidentiary Hearing
At the evidentiary hearing regarding disgorgement,

Vardakostas testified to his understanding that Bostonia was in
good financial health in 2010, and that he had no reason to
believe Bostonia’s financial situation was substantially
different in 2011.

He also testified that Bostonia held assets

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that included four truck bays valued at about $1.6 million, 19
trucks worth about $900,000, inventory worth about $800,000, a
variety of other equipment, and accounts receivable of about $1.3
million.

Vardakostas said that Bostonia was current on its bills

in 2010 and that he understood Bostonia to have assets more than
sufficient to pay its creditors.
According to Vardakostas, he did not learn of Bostonia’s
financial troubles until late in 2011 or early in 2012 when he
spoke with Bostonia’s accountant and began to hear rumors about
Bostonia failing to pay suppliers.

He attributed his prior lack

of knowledge to his inability to communicate with produce
suppliers due to his non-competition agreement and his falling
out with the Splagounias family.

Vardakostas testified that he

had no contact with the Splagounias family after July 2010 other
than seeing Steven Splagounias at a wedding within a year of the
stock sale.
Representatives of three of Bostonia’s PACA creditors –
plaintiffs Forlizzi and Bimber, Inc. (“Forlizzi”), Gregg Dziama,
Inc. (“Dziama”), and Lisitano Produce, Inc. (“Lisitano”) – also
testified at the hearing.

These witnesses provided testimony and

documentary evidence, uncontested by Vardakostas, establishing
that in July 2011 Bostonia owed an amount on the order of
$400,000 to Forlizzi, Dziama, and Lisitano.

The suppliers’

records also showed that Bostonia regularly made late payments on

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invoices.

Lisitano records, for example, showed that although

Bostonia had 21-day payment terms, it frequently made payments a
full month or two after invoice, if not more.
The records also showed, however, that all invoices from
Dziama through June 2011 were paid by Bostonia by mid-August.
Similarly, all invoices from Lisitano through June 2011 were paid
by Bostonia by the end of September.

Forlizzi records did not

indicate whether Bostonia similarly paid summer 2011 invoices
sometime later that year.
C.

Supplementary Materials
Earlier in this litigation, before the disgorgement

proceedings, plaintiffs expressed concern about Bostonia trucks
that had been sold on October 4, 2012, the day before plaintiffs
initiated this action and I imposed a temporary restraining order
freezing Bostonia’s assets.

The bills of sale for three trucks

bore illegible signatures and otherwise failed to identify the
buyer.

Two trucks were sold for $19,000 and a third for $2,000,

for a total of $40,000.

Bostonia’s bank records, however, show

no deposit corresponding to the $40,000 paid for the trucks.
Shortly after the evidentiary hearing regarding
disgorgement, plaintiffs received registration documentation from
the Massachusetts Registry of Motor Vehicles indicating that
Bostonia had sold the three trucks to Atlas.

The title transfer

documents were signed by Vardakostas and Steven Splagounias.

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Plaintiffs brought these matters to my attention by supplemental
affirmation.

In supplemental submissions I permitted the parties

to make, plaintiffs requested that I order Vardakostas to pay the
PACA judgment creditors $40,000 based on his alleged
participation in diverting trust assets.

Vardakostas has not

responded to the substance of that request.
II. ANALYSIS
A.

Disgorgement of $120,000
1.

Legal Framework

The PACA seeks to protect produce sellers against the
vulnerabilities inherent in financing arrangements frequently
used in the trade of perishable agricultural commodities, by
which produce sellers become unsecured creditors to buyers whose
creditworthiness cannot be verified in a timely manner.

See

Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063,
1067 (2d Cir. 1995); In re Kornblum & Co., 81 F.3d 280, 283 (2d
Cir. 1996); see generally H.R. Rep. No. 98-543, at 3 (1983),
reprinted in 1984 U.S.C.C.A.N. 405, 406-07. To that end, the
statute requires produce dealers who purchase produce on credit
to hold the produce and its proceeds in trust for the unpaid
seller.

7 U.S.C. § 499e(c)(2).

A PACA trustee, however, “does

not commit a per se breach of fiduciary duty when trust funds are
used to conduct a commercial transaction with a non-PACA party.”
Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 706 (2d
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Cir. 2007).

Under Department of Agriculture regulations, a

breach of trust occurs when the PACA trustee fails “to maintain
trust assets in a manner that such assets are freely available to
satisfy outstanding obligations to sellers of perishable
agricultural commodities” – by, for example, dissipating trust
assets.

7 C.F.R. § 46.46(d)(1) (2011).

Through the trust, “the

sellers of [perishable] commodities maintain a right to recover
against the purchasers superior to all creditors, including
secured creditors.”

Endico Potatoes, 67 F.3d at 1067.

Nevertheless, a third-party transferee of trust property is
not liable to PACA trust beneficiaries if he is a bona fide
purchaser for value.

See Restatement (Second) of Trusts § 284.

A third-party transferee thus may retain trust property, even if
obtained as a result of a breach of trust, if the transferee:
“(i) gave value for the trust property and (ii) had no actual or
constructive notice of the breach of trust.”

Albee Tomato, Inc.

v. A.B. Shalom Produce Corp., 155 F.3d 612, 615 (2d Cir. 1998)
(emphasis in original); Restatement (Second) of Trusts § 284(1)
(1959).
Under the Restatement (Second) of Trusts, a transferee
“should have known” of a breach of trust:
when he knows facts which under the circumstances would
lead a reasonably intelligent and diligent person to
inquire whether the trustee is a trustee and whether he
is committing a breach of trust, and if such inquiry when
pursued with reasonable intelligence and diligence would

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give him knowledge or reason to know that the trustee is
committing a breach of trust.
Restatement (Second) of Trusts § 297 cmt. a (1959).

Accord

Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 1000 (11th Cir. 1997)
(“In the PACA context, once a lender has knowledge that the
borrower/trustee was experiencing financial difficulties, or was
failing to pay his or her suppliers, the lender has a duty of
inquiry. . . . If such an inquiry would have revealed the breach
of the trust, then the person ‘should have known’ of the
breach.”).

The more recent Restatement (Third) of Trusts

continues to disqualify bona fide purchaser status based on
constructive knowledge that the trustee is acting improperly,
Restatement (Third) of Trusts § 108(1) (2012), but eliminates the
transferee's duty of inquiry, id. § 108(3).
2.

Analysis

I previously concluded that the July 2011 payment on the
promissory note received by Vardakostas as compensation for his
shares and in the “ordinary course of business,” Consumers
Produce Co. v. Volante Wholesale Produce, Inc., 16 F.3d 1374,
1380 (3d Cir. 1994), was a transfer “for value.”
Tomato, 2013 WL 1793858, at *5.

See Boston

There is no basis to revise that

conclusion.
The crux of the remaining dispute, then, is whether
Vardakostas had actual or constructive knowledge that he received

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payment from Bostonia in breach of the PACA trust.

Albee Tomato,

155 F.3d at 616; Consumers Produce, 16 F.3d at 1380-82.

I

conclude that Vardakostas did not have such knowledge under
either Restatement standard and therefore qualifies as a bona
fide purchaser for value.

In reaching this determination, I make

the following findings of fact and conclusions of law.
I did not find Vardakostas’s testimony at the evidentiary
hearing entirely credible.

Vardakostas suggested that he was

completely unaware of developments in Bostonia’s financial
situation after 2010 by virtue of his falling out with the
Splagounias family and his agreement not to communicate with
Bostonia customers.

More specifically, Vardakostas testified

that he had little to no contact with the Splagounias family
after July 2010.

That testimony is belied, however, by the

evidence that Vardakostas, through Atlas, purchased trucks from
Steven Splagounias, through Bostonia, in October 2012.

The fact

of – and inattention to formalities in – that sale evidences that
Vardakostas maintained some type of relationship with the
Splagounias family.

I find and conclude that Vardakostas had at

least a general knowledge about Bostonia’s financial situation in
2011, despite having formally separated from the company the year
prior.
Nevertheless, I do not find that Vardakostas had sufficient
specific knowledge of Bostonia’s financial situation to be found

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to have a cognizable awareness of any breach.

To be sure, there

was outstanding debt to PACA creditors as of July 2011.
Vardakostas does not dispute that this amount was on the order of
$400,000 just to Forlizzi, Dziama, and Lisitano.

Neither does

Vardakostas dispute that Bostonia had made a habit of late
payment since at least 2009.
Lisitano and Dziama, however, were paid in full for all June
2011 invoices.

Putting aside whether Vardakostas may be charged

with knowledge of any such breach, this suggests that Bostonia
had sufficient assets to pay its debt and may not yet have even
been in breach of the trust in July 2011.

Cf. Consumers Produce,

16 F.3d at 1379 n.2.
These suppliers were, of course, paid only on the habitually
slow schedule established by Bostonia over the years.

Generally,

delay is classic evidence from which a third-party transferee may
be charged with notice of breach of trust.
Produce, 16 F.3d at 1384.

Cf. Consumers

Here, however, the habit of slow

payment by Bostonia over several years of dealing with the same
produce suppliers weighs in Vardakostas’s favor during the
relevant time period.

Bostonia paid in full its April and May

invoices from Lisitano and Dziama in July 2011, for example.

It

was business as usual for Bostonia to pay its suppliers a month
or two after invoicing, and thus not something

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that should have put Vardakostas on notice that Bostonia may have
been operating in breach of the PACA trust.
Whether invoices from other creditors like Forlizzi were
being paid consistent with past practice in July 2011, or whether
new invoices from July 2011 were actually satisfied, is less
clear from the record.

The steadily increasing debt to Forlizzi

at least suggests that Bostonia was a company in decline.

But I

credit Vardakostas’s testimony that he understood Bostonia to
have freely available assets sufficient to pay its suppliers.
I recognize there are shortcomings in Vardakostas’s
testimony.

His estimate of the value of bays, trucks, inventory,

other equipment, and accounts receivable at around $4.5 million
is plainly overstated.

For example, Vardakostas placed the value

of the trucks at nearly $50,000 per truck, when he purchased
three trucks for just $40,000.

Additionally, at least some of

the assets taken into account by Vardakostas were not “freely
available.”

See Coosemans Specialties, 485 F.3d at 707

(“uncollected accounts receivable” are not freely available).
But unlike uncollected accounts receivable, the availability of
which is contingent on payment by a third party, most equipment
and inventory may be liquidated with greater or lesser ease by
the PACA trustee.

Indeed, PACA itself contemplates that

“inventories of food or other products derived from perishable
agricultural commodities” constitute trust assets which may be

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liquidated to satisfy PACA creditors.

7 U.S.C. § 499e(c)(2).

It

was thus proper for Vardakostas to consider the value of these
items in assessing Bostonia’s financial health and compliance
with its PACA obligations.
Additionally, according to plaintiffs’ most recent report,
over $750,000 of the present judgment for plaintiffs has been
satisfied.

That, of course, does not excuse the obligation also

to come up with the nearly $400,000 that remains outstanding.
But the extent of satisfaction of the current judgment is some
evidence of the liquidity of Bostonia’s assets.

Considering the

apparent trajectory of Bostonia’s financial condition, I infer
that Bostonia had even more liquid assets and/or less debt in
July 2011, making it reasonable for Vardakostas to have believed
that Bostonia’s assets were sufficient to cover outstanding
liabilities to PACA creditors at that time.
Plaintiffs suggest that Vardakostas must have known Bostonia
was in poor financial health because he received personal
guarantees from the Splagounias family for the $400,000
promissory note.

But, given his long history in the produce

industry, Vardakostas surely knew that his interest even as a
secured creditor would be subordinate to PACA creditors.
Endico Potatoes, 67 F.3d at 1067.

See

The only potentially

independent security he could obtain on the note would be
personal guarantees from the Splagounias family.

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On balance, I

find the fact that Vardakostas obtained personal guarantees to
have been a prudent act by someone familiar with the produce
industry and the PACA, rather than an indication that Vardakostas
knew Bostonia was then in financial straits.
For the foregoing reasons, I conclude that Bostonia has not
been shown to have been in breach of the PACA trust in July 2011.
This conclusion is fatal to plaintiffs’ claim for disgorgement.
Boulder Fruit Exp. & Heger Organic Farm Sales v. Transp.
Factoring, Inc., 251 F.3d 1268, 1272 (9th Cir. 2001) (“Whether a
transferee of trust assets is a bona fide purchaser becomes
relevant only as a defense after it has been determined that a
breach of trust has occurred.”).
Even assuming Bostonia was in breach as of July 2011, I find
that Vardakostas neither knew nor should have known of such a
breach.

This would be a different case if Bostonia did not have

a custom of delayed payment in which suppliers acquiesced; or if
there were stronger evidence of Bostonia missing July 2011
payments for earlier invoices on its slow-pay schedule, or of
July 2011 invoices going unpaid beyond the customary few months
thereafter; or if Bostonia assets were more demonstrably meager
in July 2011.

But on the record before me those circumstances

have not been demonstrated, and there are otherwise too few red
flags for me to find Vardakostas should have known Bostonia was
“financially

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incapable of paying both suppliers and [himself].”

Consumers

Produce, 16 F.3d at 1384-85.
Thus, I find and conclude that Vardakostas was a bona fide
purchaser and is shielded from disgorgement of the $120,000 paid
to him by Bostonia in breach of the PACA trust, if there was a
breach as of July 2011.
B.

Liability for $40,000
Unlike the $120,000 payment in July 2011, the sale of three

Bostonia trucks to Atlas more than a year later in October 2012
for $40,000 occurred at a time when no one disputes that Bostonia
was in breach of the PACA trust.

In theory, this act of

liquidating trust assets should have been beneficial to PACA
trust beneficiaries, if the trucks were sold at fair market
value.

In fact, plaintiffs do not contest the commercial

reasonableness of the sale.

Rather, they argue that the sale was

designed to conceal the diversion of trust assets to Steven
Splagounias.

Bostonia’s bank records show no deposit

corresponding to the $40,000 paid for the trucks, indicating that
Splagounias unlawfully deprived trust beneficiaries of these
assets.
Vardakostas may be held liable if he knew Splagounias meant
to divert the $40,000 paid for the trucks, or if Vardakostas
otherwise participated in the transaction knowing that
Splagounias was engaging in a breach of trust.

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See Restatement

(Second) of Trusts §§ 321, 326 (1959).1

I find the circumstances

surrounding the sale of trucks sufficiently suspicious to support
the inference that Vardakostas knowingly participated in
diverting trust assets or knew Steven Splagounias meant to act in
breach of trust.
Plaintiffs note that the truck sale occurred after
defendants’ counsel had been notified regarding plaintiffs’
intention to litigate, and that the bill of sale fails to
identify the buyer clearly.

These facts, according to

Plaintiffs, suggest that Vardakostas was working to help his
former business associate Steven Splagounias convert trust assets
into cash and to divert those assets in advance of litigation,

1

Contrary to Vardakostas’s suggestion, plaintiffs properly
brought these issues to my attention after the April 24 hearing.
Plaintiffs had flagged the issue earlier in the litigation, and
received approval from me to pursue the matter. The delay in
substantiating the claim is attributable to the fact that
plaintiffs did not receive a response to their inquiries from the
Massachusetts Registry of Motor Vehicles until after the
scheduled evidentiary hearing. For his part, Vardakostas has had
more than adequate time and opportunity to contest the issue, but
he has chosen not to respond. In a letter filed in tandem with
his supplemental memorandum following the evidentiary hearing on
disgorgement, Vardakostas sought to forestall judgment on the
issue by requesting that he “be afforded . . . the opportunity to
fully brief this . . . issue and/or have an evidentiary hearing
as the [sic] pertains to recent sale of trucks.” Since then,
Vardakostas has made no efforts to make any substantive
submissions. That was a dangerous gambit, since a
passive-aggressive approach to addressing issues does not always
end well for a party who chooses not to be proactive in advancing
resolution of matters properly before the court. Nevertheless,
before finally resolving the truck sale issue, I will afford
Vardakostas an opportunity to show cause why he should not make
disgorgement of the sale price of the trucks.
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all without attaching Vardakostas’ name to the transaction.2
not make such an inference from these facts alone.

I do

If anonymity

was the goal in omitting Vardakostas’ name from the bill of sale,
one might have expected that he would have taken further steps to
assure that his own name and the name of his new company were not
found on the registration and title transfer documents for the
trucks.

But perfection is not always fully executed in deceptive

schemes.

The failure to include the printed name of a buyer on

the bill of sale may reflect an informality in dealing, but it is
also evidentiary of a fraudulent - if not entirely perfected –
effort to conceal the identity of the buyer.
That said, the timing and peculiarities of the sale and
accompanying documentation, considered in tandem with
Vardakostas’ concealment through dissembling testimony regarding
the extent of his contacts with the Splagounias family after July
2010 lead me to find that Vardakostas participated in a breach of
trust by purchasing the trucks from Steven Splagounias in October
2012. Vardakostas clumsily undertook to conceal the relationship
with Splagounias in an effort to provide himself with plausible
deniability for any allegation of meaningful knowledge of
Bostonia’s declining financial condition after 2010.

2

I am

In this connection, I note that Vardakostas, Steven Splagounias
and the other personal guarantors on the note settled related
state court litigation late last month. See Vardakostas v.
Bostonia Produce, Inc., SUCV2012-01761 (Mass. Super. Ct. Mar. 25,
2015) (judgment of dismissal).
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satisfied that when considered in all its dimensions, the record
before me establishes that Steven Splagounias and Vardakostas
used the truck sale to liquidate and divert trust assets in
advance of litigation.

However, to afford Vardakostas the

opportunity which he has conspicuously contrived not to pursue
without specific direction from the court, see supra note 1, I
will direct that he show cause, if any there by, why he should
not be held liable for the $40,000 unlawfully withheld from the
PACA trust beneficiaries based on his participation in that
breach of trust through the truck sale.

See Restatement (Second)

of Trusts § 321 (1959).
III. CONCLUSION
For the foregoing reasons, the issues originally raised by
plaintiffs’ motion for disgorgement, Dkt. No. 59, are hereby
resolved in these findings and conclusion by an ORDER:
That Vardakostas not be required to disgorge the $120,000
payment he received from Bostonia in July 2011 as a bona fide
purchaser for value, and it is FURTHER ORDERED:
That Vardakostas may, on or before April 24, 2015, show
cause, if any there be, why he should not be held liable to the
PACA judgment creditors for his participation in a breach of

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trust in connection with the purchase of the Bostonia trucks
through Atlas, and consequently disgorge the amount of $40,000,
failing which an order of disgorgement in that amount will be
entered.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT

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