Southern Wine & Spirits of America, Inc., v. Price et al

Filing 84

ORDERED that the parties shall have until May 5, 2015, to execute the Settlement and Release Agreement in the form attached as Exhibit A to this order. Defendants shall have until May 19, 2015, in which to deliver a check in the sum of $25,000.00 payable to Southern Wine & Spirits, in care of the law firm of Lewis, Roca, Rothgerber LLP. The Defendants shall have until May 19, 2015, in which to deliver a check in the sum of $25,000 payable to the organization of Keep Memory Alive. The parties shall have until May 19, 2015, to file a stipulation for dismissal with prejudice. Signed by Magistrate Judge Peggy A. Leen on 4/22/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SOUTHERN WINE
AMERICA, INC.,,

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OF

Case No. 2:14-cv-00388-JCM-PAL
ORDER

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SPIRITS

Plaintiff,
v.
DANIELLE PRICE, et al.,
Defendants.

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This matter is before the court on the parties’ disputes about the terms of the Settlement

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and Release Agreement negotiated at the mandatory settlement conference the court conducted

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on April 2, 2015.

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The April 2, 2015 Settlement Conference

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On April 2, 2015, the court conducted a mandatory settlement conference at the request

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of counsel. The Order Scheduling the Settlement Conference (Dkt. #38) required all counsel of

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record who would be participating in the trial and who have full authority to settle this case as

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well as all individual parties and an officer or representative with binding authority on behalf of

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the corporate parties to be present for the duration of the conference. E. Leif Reid and Kristen

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Martini, counsel for Plaintiff, and Clement Kong, General Counsel, appeared on behalf of

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Plaintiff. Mr. Kong represented he had full settlement authority on behalf of the Plaintiff. Paul

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Hejmanowski and Defendants Danielle Price and Michael Price were also present, and

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authorized to resolve this case on behalf of Defendant Barrique International, LLC, a dissolved

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limited liability company.

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Both sides agree that a binding and enforceable settlement was reached on terms

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contained in the attachment to Mr. Reid’s September 4, 2014, email to Mr. Hejmanowski with

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the exception of terms negotiated at the April 2, 2015 settlement conference.
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The court

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addressed the essential terms of the settlement agreement with counsel for both sides in

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chambers at the conclusion of the settlement conference. The court stated the essential terms and

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asked counsel for each side whether the court had accurately stated the settlement terms.

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Counsel for both sides agreed the court’s summary was accurate. The court also inquired of

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counsel for both sides whether there were any additional essential terms to the settlement

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agreement that the court had not summarized. Counsel for both sides responded that there were

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no additional essential terms the court had not summarized. Both sides requested and agreed that

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I retain jurisdiction to resolve any disputes in finalizing the written settlement release and

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agreement memorializing settlement terms. Both sides assured the court that it was unlikely the

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court’s intervention would be required, and that counsel would be able to finalize their

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agreement.

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Unfortunately, the parties were unable to agree on final language of the draft agreement.

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The court conducted a telephonic status check on April 16, 2015. Before the telephonic status

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conference, counsel for both sides delivered copies of draft proposed agreements that had been

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exchanged and correspondence and emails exchanged in their efforts to finalize the settlement

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and release agreement reached during the settlement conference.

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The April 16, 2015 Telephonic Status Conference

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During the telephonic status conference on April 16, 2015, counsel for each side

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discussed their disputes and their respective positions. The parties’ disagreements were too

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complex for the court to resolve in the limited time available before entering the telephonic

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conference. I therefore advised counsel that I would review the drafts and set the matter for

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hearing to rule on the parties’ disputes over settlement terms. Minutes of Proceedings (Dkt. #83)

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were entered summarizing the conference call and set a hearing for April 21, 2015, at 11:00 a.m.

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The April 21, 2015 Hearing

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At the April 21, 2015 hearing, E. Leif Reid and Kristen Martini appeared on behalf of the

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Plaintiff. Paul Hejmanowski and Michael Price appeared on behalf of the Defendants. The court

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stated on the record that the parties had agreed as follows: (1) the parties had agreed they had

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reached a binding and enforceable settlement at the April 2, 2015, settlement conference; (2) the
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draft agreement attached to Mr. Reid’s September 4, 2015, email memorialized the parties’

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agreement with the exception of settlement terms negotiated at the settlement conference which

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were summarized by the court; (3) that the court would retain jurisdiction to resolve any disputes

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on settlement terms; (4) that the essential terms were summarized by the court in chambers, and

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that each side agreed that the essential terms stated were, in fact, the terms of the settlement

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agreement; and (5) there were no other essential terms of the settlement the court did not

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summarize in chambers.

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The court afforded counsel an opportunity to make a record if there was any dispute

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about the court’s summarization of the record. Neither side made any additional representations

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on the record and submitted the matter to me for decision. The court advised counsel that an

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order would be entered attaching the settlement and release agreement which resolved the

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parties’ disputes and was the form of agreement the court determined the parties had reached

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during the April 2, 2015, settlement conference.

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Having reviewed and considered the parties’ submissions to the court in chambers prior

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to the April 16, 2015, telephonic status conference, and the arguments of counsel during the

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status conference, the court finds that:

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1. The parties reached a binding and enforceable settlement at the April 2, 2015,
settlement conference.

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2. A settlement was reached on terms contained in the attachment to Mr. Reid’s

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September 4, 2014, email with the exception of terms negotiated at the settlement

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conference, which the court summarized for both sides.

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3. Both sides agreed that the court accurately summarized the essential negotiated terms
of the settlement at the conclusion of the settlement conference on April 2, 2015.
4. Both sides agreed that there were no additional essential terms which the court had
not summarized at the conclusion of the settlement conference.

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5. Both sides requested that I retain jurisdiction to resolve any disputes about the

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settlement terms, and agreed that I would have the final decision-making authority

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over any such disputes.
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6. The Settlement and Release Agreement attached as Exhibit A to this order is the

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binding and enforceable settlement and release agreement the parties agreed to at the

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settlement conference on April 2, 2015.

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IT IS ORDERED that:

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1. The parties shall have until May 5, 2015, to execute the Settlement and Release

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Agreement in the form attached as Exhibit A to this order.

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2. Defendants shall have until May 19, 2015, in which to deliver a check in the sum of

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$25,000.00 payable to Southern Wine & Spirits, in care of the law firm of Lewis,

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Roca, Rothgerber LLP, 50 W. Liberty St., Ste. 410, Reno, Nevada 89501.

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3. The Defendants shall have until May 19, 2015, in which to deliver a check in the sum

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of $25,000 payable to the organization of Keep Memory Alive, 888 W. Bonneville,

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Las Vegas, Nevada 89106.

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4. The parties shall have until May 19, 2015, to file a stipulation for dismissal with
prejudice.
DATED this 22nd day of April, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A
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SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (“Agreement”) is effective as of this ____ day of
April, 2015 (“Effective Date”), by and between SOUTHERN WINE & SPIRITS OF AMERICA,
INC., d/b/a SOUTHERN WINE & SPIRITS OF NEVADA (“SW&S”), and DANIELLE PRICE,
an individual, and MICHAEL PRICE, an individual (collectively, the “Prices”). This Agreement
shall also cover BARRIQUE INTERNATIONAL LLC (“Barrique”), a dissolved Nevada limited
liability company (Barrique and the Prices collectively, the “Price Entities”). Each of the
foregoing may be referred to as a “Party”, and collectively referred to hereafter as “the Parties.”
The Parties now wish to fully and to finally avoid further costs of litigation and to
compromise and settle any and all claims, controversies and disputes between them based on,
derived from, related to, or that could have been alleged in the “Action” (as defined below) and
the damages allegedly sustained by the Parties, including without limitation, all past and present
claims asserted or unasserted, known or unknown, based on, derived from, or related to any of
the allegations within the Action and agree as follows:
RECITALS
WHEREAS, on or about November 15, 2013, SW&S, by and through its counsel of
record, Lewis Roca Rothgerber LLP, filed a formal Complaint alleging causes of action for
breach of statutory rights, intentional interference with contract or prospective economic
advantage, unfair competition, and accounting/declaratory relief/injunction. Said Complaint was
filed in the Eighth Judicial District Court, County of Clark, State of Nevada, Case Number A-13691758-C. On or about March 14, 2014, Defendants Danielle Price and Michael Price filed an
Answer disputing any and all allegations of SW&S, and a Petition for Removal to the United
States District Court, District of Nevada. On May 21, 2014, the Prices filed a First Amended
Answer, and on April 18, 2014, Barrique filed an Answer, both disputing any and all allegations
of SW&S with the United States District Court, District of Nevada. The case is currently pending
in the United States District Court, District of Nevada, as Case No. 2:14-cv-00388-JCM-PAL
(“the Action”).
WHEREAS the Price Entities agree that SW&S, d/b/a Southern Wine and Spirits of
Nevada, and as Comstock Wine & Spirits and J & P Wholesale, have whatever exclusive rights
granted to it, pursuant to contract and Nevada law, including Nevada Revised Statutes Chapters
369 and 597, over brands of wine listed in Liquor Wholesaler Designation and Acceptance
Forms (“LT08s”) that SW&S has filed with the Nevada Department of Taxation, including, but
not limited to, the brands listed in the attached as Exhibit “A”;
WHEREAS SW&S may, from time to time, designate additional or different wines and
liquors as to which SW&S has LT08s, and such LT08s are filed with the Nevada Department of
Taxation, and which will be covered by this Agreement by supplementing Exhibit “A” with the
additional LT08s (the “Supplemental Lists”) by written notice to the Prices, sent to Danielle
Price and Michael Price at P.O. Box 2216, Sausalito, California 94966, or such other address as
the Prices may designate from time to time. Any such Supplemental Lists shall identify any
wines for which SW&S no longer has an exclusive right of importation and distribution.

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AGREEMENT
In consideration of the mutual promises and undertakings set forth in this Agreement,
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the
Parties agree as follows:
1.
Adoption of Recitals. The recitals set forth above are hereby adopted and made a
part of this Agreement and are incorporated herein by this reference.
2.
Execution of Documents. The Parties agree to execute any documents and
pleadings necessary to effectuate and carry out the purpose and intent of this Agreement,
including without limitation those necessary to dismiss the Action with prejudice as specified in
Section 3.6 below, or to evidence anything contained herein.
3.

Settlement Terms.

3.1
In full, complete, and final settlement, the Prices, jointly or severally, shall pay,
through its attorney of record, monetary consideration as follows:
A.
the sum of TWENTY-FIVE THOUSAND DOLLARS AND ZERO
CENTS ($25,000.00), paid to SW&S in care of the law firm of Lewis Roca Rothgerber LLP, 50
W. Liberty Street, Suite 410, Reno, Nevada 89501, within fourteen (14) days of the execution of
this Agreement;
B.
the sum of the sum of TWENTY-FIVE THOUSAND DOLLARS AND
ZERO CENTS ($25,000.00), paid to the organization of Keep Memory Alive, 888 W.
Bonneville Avenue, Las Vegas, Nevada 89106 (check payable to Keep Memory Alive), within
fourteen (14) days of the execution of this Agreement;
C.
the sum of TWENTY-FIVE THOUSAND DOLLARS AND ZERO
CENTS ($25,000.00), paid to SW&S in care of the law firm of Lewis Roca Rothgerber LLP, 50
W. Liberty Street, Suite 410, Reno, Nevada 89501, no later than the one-year anniversary of the
Effective Date of this Agreement; and
D.
the sum of the sum of TWENTY-FIVE THOUSAND DOLLARS AND
ZERO CENTS ($25,000.00), paid to the organization of Keep Memory Alive, 888 W.
Bonneville Avenue, Las Vegas, Nevada 89106 (check payable to Keep Memory Alive), no later
than the one-year anniversary of the Effective Date of this Agreement.
3.2
For a duration of five (5) years from the Effective Date of this Agreement, the
Prices, and any of them, and any business entity they own or control, shall not engage in business
in the State of Nevada as a wholesaler, importer, or supplier of wine or other liquor, as those
terms are defined in NRS Chapter 369 and Chapter 597, in any method or manner whatsoever,
including through online sales or otherwise.
3.3
If, in contravention of Section 3.2, the Prices, or any of them, or any business
entity that they own or control, engage in business in the State of Nevada as a wholesaler,
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importer, or supplier, as those terms are defined in NRS Chapter 369 and Chapter 597, the Prices
or any of them shall be liable to SW&S as liquidated damages, and not as a penalty, in the
amount of $1,000 for each case of wine or liquor supplied, imported, or sold in the State of
Nevada.
3.4
The Price Entities, or any business entity they own or control, shall not hereafter
import into the State of Nevada, whether as a supplier, importer, wholesaler or retailer, as those
terms are defined in NRS Chapter 369 and Chapter 597, or through any online business, any
wines contained in the LT08s attached as Exhibit “A” or in the Supplemental Lists to be
provided by SW&S pursuant to the Recitals above. The Price Entities, or any of them, or any
business entity they own or control, shall not distribute, sell, and/or offer for sale within the State
of Nevada, and/or cause to be “cleared” into the State of Nevada through any licensed Nevada
wholesaler any wines or liquors listed in the LT08s attached as Exhibit “A,” or in the
Supplemental Lists to be provided by SW&S pursuant to the Recitals above, unless the Price
Entities, or any of them, have purchased the wines or liquors from SW&S or from another
wholesaler who purchased the wines or liquors from SW&S in accordance with the provisions of
NRS 369.486.
3.5
If, in contravention of this Agreement, the Prices, or any business entity they own
or control, knowingly engage in business in Nevada as a wholesaler, importer or supplier of any
brand of wine identified in an LT08 attached as Exhibit “A” or listed on the Supplemental Lists
to be provided by SW&S pursuant to the Recitals above, or if the Price Entities or any of them,
or any business entity they own or control, distributes, sells, offers for sale within the state of
Nevada and/or “clears” or causes to be “cleared” into the State of Nevada through a licensed
Nevada importer/wholesaler any wine listed on Exhibit “A”, or listed on the Supplemental Lists
to be provided by SW&S pursuant to the Recitals above, without having purchased said wines or
liquors from SW&S or from another wholesaler who purchased the wines or liquors from SW&S
in accordance with the provisions of NRS 369.486, the Prices, or any business entity they own or
control, shall be liable to SW&S as liquidated damages, and not as a penalty, in an amount not
less than $500 for each case of wine.
3.6
Dismissal. SW&S shall undertake all necessary action to obtain a Dismissal with
Prejudice of all claims against the Price Entities with each side responsible for its own attorneys’
fees and costs, as set forth in the Action within fourteen (14) days of the execution of this
Agreement (“The Dismissal”).
4.

Release of Claims.

4.1
In recognition of the consideration to be paid as described above, SW&S and the
Price Entities, on their own respective behalves and on behalf of their respective brokers,
partners, servants, managers, representatives, agents, officers, directors, shareholders,
employees, administrators, predecessors, successors, heirs, executors, affiliates, partnerships,
patent corporations, subsidiary corporations and entities, assigns, administrators, attorneys, and
agents (collectively, “Agents”), hereby release and forever discharge one another and their
respective Agents, and each of them, in their capacity as such and individually, irrevocably and
unconditionally release, acquit and forever discharge the other Party, together with all of their
Agents of and from any and all claims, promises, agreements, controversies, liabilities,
obligations, actions, causes of action, charges, suits, rights, demands, costs, losses, debts, and
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expenses (including without limitation attorneys’ fees and costs), complaints, and damages, of
any nature whatsoever, known or unknown, suspected or unsuspected, whether based on
contract, statute or common law, that were alleged, or could have been alleged, in the Action
and/or which arise out of or are related to any fact or circumstance alleged, or that could have
been alleged by or against each Party in the Action, including without limitation all causes of
action sounding in tort, contract, and/or equity (hereinafter the provisions of this paragraph shall
be referred to as “Released Matter”). In agreeing to the Released Matter, the Parties agree and
stipulate that this settlement is made in good faith. Nothing in this Agreement shall prevent the
Parties from enforcing this Agreement or asserting claims, causes of actions, charges or
complaints against the other for any breach(es) of any term of this Agreement.
4.2
The Parties further acknowledge and agree that these waivers of rights have been
separately bargained for and are essential and material terms of this Agreement
5.

Miscellaneous Provisions.

5.1
No Admission of Liability. This Agreement is a compromise of disputed claims
and nothing herein (other than the Recitals above) shall be deemed or construed to be an
admission or concession of any legal or factual issue, liability or fault with respect to any
allegation made in, or related to, any pleading in the Action. Each Party shall bear its own
attorneys’ fees and costs in connection with the Action.
5. 2
Entire Agreement. This Agreement constitutes the entire agreement between the
Parties hereto. The Parties acknowledge that this Agreement supersedes all previous and/or
contemporaneous negotiations, discussions, understandings, or releases or other Agreements
between the Parties, written or oral, between the Parties pertaining to the subject matter hereof,
and no evidence of any prior, contemporaneous, or other release or agreement shall be permitted
to contradict or vary the terms hereof.
5.3
Modifications. This Agreement may not be altered, amended or modified, or
otherwise changed in any respect whatsoever, except in a subsequent writing signed by each of
SW&S, Danielle Price, and Michael Price.
5.4
No Assignment. This Agreement shall be binding on, and inure to the benefit of
the successors and assigns of the Parties hereto. Nothing in this Agreement, express or implied,
is intended to confer upon any person or entity other than the Parties hereto or their respective
successors, heirs, issues and assigns, any rights or benefits under or by reason of this Agreement.
This Agreement shall not be assignable by any Party hereto without the prior written consent of
the other Party. The Parties hereby represent and warrant that they have not assigned or
transferred, or purported to assign or transfer, to any person, corporation or other entity any
Released Matter pursuant to this Agreement.
5.5
Entire Consideration. The Parties agree that the settlement amount as detailed in
Section 3.1 above shall constitute the entire amount of monetary consideration provided under
this Agreement and the Parties shall bear their own expenses, including without limitation court
costs, legal and expert fees in connection with the Action unless otherwise set forth herein and
those fees incurred by them in the negotiation, preparation, and execution of this Agreement.
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5.5
Enforcement. If any Party to this Agreement shall institute legal proceedings or
assert claims seeking to enforce the terms of this Agreement, the losing or defaulting Party shall
pay to the prevailing Party or Parties, the prevailing Party’s reasonable attorneys’ fees, costs and
expenses incurred in connection with the prosecution or defense of such proceeding or claim.
5.6
Tax Consequences. The Parties acknowledge that the settlement amount detailed
in Section 3.1 may or may not be considered taxable income and may be subject to disclosure to
the appropriate taxing authorities. SW&S agrees to pay any federal or state taxes, if any, which
are required by law to be paid with respect to the receipt of the abovementioned settlement
amount.
5.7
Governing Law, Jurisdiction and Venue. This Agreement constitutes and shall
be deemed to be a contract made under the laws of the State of Nevada, for any and all purposes
and shall be interpreted, construed and enforced in accordance with the substantive laws of the
State of Nevada, without regard to conflict or choice of laws. Any dispute relating to or in
connection with this Agreement shall be brought exclusively in the United States District Court,
District of Nevada – Las Vegas.
5.8
Construction of Ambiguities. The Parties expressly state that each of them have
consulted with their respective attorneys concerning the terms and conditions of this Settlement
Agreement, and that they have been fully advised by such attorneys with respect to their rights
and obligations hereunder.
5.9
Enforceability. If any provision of this Agreement or the application thereof to
any person or circumstance shall be invalid or unenforceable, but the extent of such invalidity or
unenforceability does not destroy the basis of the bargain between the Parties as contained
herein, the remainder of this Agreement and the application of such provision or provisions to
other persons or circumstances shall not be affected thereby and shall be enforced to the greatest
extent permitted by law.
5.10 Representations. The Parties represent and warrant that they have full power,
authority and legal right to execute and deliver, and to perform and observe the provisions of this
Agreement. The execution, delivery, and performance by the Parties of this Agreement have
been duly authorized by all necessary legal action and the Parties have obtained any necessary
consent, approval of, notice to, or any action by any person, firm corporation, or governmental
agency or entity necessary or appropriate to consummate the transaction contemplated hereby.
5.11 Headings. The headings of each paragraph shall not be given any meaning, are
not intended to be used to interpret this Agreement, are not to be used to explain, expand,
contract or limit the language of this Agreement in any way, and are only included for the
purpose of easy reference.
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5.12 Counterparts. This Agreement may be executed in counterparts if necessary or
applicable, each of which shall be deemed an original and shall be deemed duly executed upon
the signing of the counterparts by the Parties hereto. The Parties agree that signatures by
facsimile shall have the same force and effect as original signature.
IN WITNESS HEREOF, the undersigned has entered this Agreement as of the Effective
Date.
DANIELLE PRICE

BARRIQUE INTERNATIONAL LLC

Signature: _______________________

Signature: _______________________

Print Name: ______________________

Print Name: ______________________

SUBSCRIBED and SWORN to before me
this ___ day of _________, 2015.

Title: ___________________________
SUBSCRIBED and SWORN to before me
this ___ day of _________, 2015.

____________________________
NOTARY PUBLIC
____________________________
NOTARY PUBLIC
MICHAEL PRICE

Signature: _______________________

SOUTHERN WINE & SPIRITS OF
AMERICA, INC., d/b/a SOUTHERN WINE
& SPIRITS OF NEVADA

Print Name: ______________________

Signature: _______________________

SUBSCRIBED and SWORN to before me
this ___ day of _________, 2015.

Print Name: ______________________
Title: ___________________________

____________________________
NOTARY PUBLIC

SUBSCRIBED and SWORN to before me
this ___ day of _________, 2015.

____________________________
NOTARY PUBLIC

5658510_1