Digital Camera International, Ltd v. Atebi et al
DECISION AND ORDER, For the above reasons, this Court awards DCI $195,676.03 with pre-judgment interest. So Ordered by Judge Sterling Johnson, Jr on 7/13/2017. (fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DIGITAL CAMERA INTERNATIONAL,
LTD,A NEW JERSEY CORPORATION
11 CV 1823(SJ)
DECISION AND ORDER
BARRY ANTEBI and MARLENE
Plaintiff Digital Camera International ("DCI")sued Defendant Barry Antebi
("Mr. Antebi") for breach of fiduciary duty, conversion, fraud, constructive trust,
unjust enrichment, and accounting. DCI also sued Mrs. Marlene Antebi for
conversion. Mr. Antebi counter-sued for minority shareholder oppression. Based
on the evidence at trial, the findings of fact, the post-trial briefings, and for the
reasons listed below, both parties failed to establish any oftheir claims.'
Ely Eddi, Mr. Antebi, and others started DCI, a New Jersey corporation,
which sold cameras and other electronics primarily to retailers. Mr. Eddi owns
^ The undersigned dismissed the complaint against Mrs. Antebi since DCI had not shown that she
actually received any ofthe converted funds. (Tr. at 245). This Court now holds that since Mr. Antebi
did not convert any funds, Mrs. Antebi could not have derivatively converted those funds.
23.34%, Danny Bergman owns 33.3%, David Raanan owns 10%, and Mr. Antebi,
who was in charge of day-to-day operations, owns 33%. (Trial Transcript("Tr.") at
25). The business was in operation from late-2007 until 2011. For reasons still
unclear, Mr. Antebi and^l^r. Eddi had a falling out which led to Mr. Antebi's removal
as an officer. DCI claims Mr. Antebi was forced out for bilking DCI. Mr. Antebi
claims he was forced out through shareholder oppression.
FINDINGS OF FACT
Mr. Eddi was responsible for overseeing DCI. (Tr. at 26).
Mr. Eddi and Mr. Bergman also operated another all-too-related company.
Digital Data Devices("DDD"). (tr. at 17-18).
DDD would loan DCI money. (Tr. at 259). DCI's credit cards were under
DDD's account. (Tr. at 329).
Robert Moses'acted as comptroller for both DCI and DDD. (Tr. at 123).
Shortly after DCI was created, Mr. Moses developed a due-to/due-from
account system to keep track of personal purchases made by shareholders
using company charge cards and accounts. (Tr. at 200-01).
Beginning in 2007 and continuing until his termination, Mr. Antebi used
corporate charge cards and accounts to make personal purchases with the full
knowledge of Mr. Moses and Mr. Eddi. (Tr. at 30,201).
Other shareholders also used corporate accoxmts to make personal purchases.
G - ar ticle i
Each shareholder (and the comptroller) understood that personal purchases
would be charged to each shareholder's respective due-to/due-from accounts
to be repaid out of that shareholder's share of corporate profits.
To facilitate such repayment and. proper accounting, shareholders were to
identify personal purchases and corporate expenses on the credit card bills.
Despite those identifications, DCI was never reimbursed. As of trial,
shareholders had still not repaid DCI from profits or otherwise. (Tr. at 194).
Mr. Antebi mislabeled some charges as corporate that should have been
labeled as personal.
But neither Mr. Eddi nor Mr. Moses could say with certainty which charges
were mislabeled, let alone purposely mislabeled by Mr. Antebi.
Mr. Moses, at Mr. Eddi's direction, ch^ged a number of charges that Mr.
i ' »
Antebi marked as corporate expenses to personal purchases.
Mr. Moses had no personal knowledge of any of Mr. Antebi's charges and
depended wholly on Mr. Eddi's characterizations. (Tr. at 164)
But Mr. Eddi could not guarantee that his characterizations of the charges
were correct. (Tr. at 40-41)
Mr. Antebi admits that he owes DCI for his personal purchases. He even
admitted that he misidentified sorhe personal charges as corporate and some
corporate charges as personal. (Tr. at 277-83; Defendant's Ex. EE).
However, Mr. Antebi could not prove'Which charges he mistakenly labeled
as personal other than to conclusorily say as much. (Defendant's Ex. EE).
Mr. Antebi purchased Yankees ticket packages using DCI funds. The tickets
were eveiitudHy billed to his due-to/due-from account as personal purchases.
Mr. Antebi sold his tickets for games that he could not attend, keeping the
proceeds ofeach sale. (Tr. at 296).
Despite listing the tickets as personal purchases, Mr. Eddi, Mr. Moses, and
their tax accountant agreed to list the tickets as corporate expenses on tax
returns so DCI could also use it as a tax deduction. (Tr. at 202).
Separately, Mr. Antebi developed an idea to sell electronics in Brazil via the
internet under the umbrella of a new entity, Goot.
DCI did no business in Brazil and had no customers there. (Tr. at 166).
Goot did not compete with DCI and never solicited DCI customers.
Before acting on the Goot opportunity, Mr. Antebi presented it to Mr. Eddi
who rejected it on behalf of DCI but offered his approval for Mr. Antebi to
pursue the opportunity on his own. Goot never came to fruition. (Tr. at 329).
■. . s
Mr. Antebi also used DCI assets to fund an extra-marital affair, splurging on
luxury cars and international trips, among other purchases for his mistress.
Mr. Antebi also paid his personal tax obligations with DCI assets. Mr. Antebi
did this with DCI's full knowledge. Mr. Eddi even signed one of the checks
to the New Jersey Tax Authority on Mr. Antebi's behalf. (Tr. at 255-56).
DCI rented office and warehouse,spap^ from DDD at an incredibly inflated
price. At one point, the rent was $84,000 for space that was worth less than
$5000. (Tr. at 208,217-28). The two companies also shared staff for which
DDD charged DCI inflated administrative services costs. (Tr. 208, 217-28;
Defendant Ex. I, at 2).
Mr. Moses said the rent price was inflated because it included administrative
services, insurance, and even workers compensation. (Tr. at 210). However,
balance statements show that administrative services,insurance, and workers
compensation were not included in rent. (Defendant's Ex. I., at 2-3).
Mr. Antebi knew about the inflated rent and administrative fees from the
beginning. (Tr. at 228)
Mr. Antebi and Mr. Eddi both made self-serving charitable donations using
DCI assets with the full knowledge ofthe other. It remains unclear if any of
those donations were actually donations at all.
CONCLUSIONS OF LAW
Choice of Law
A federal court sitting in diversity applies the choice oflaw rules ofthe forum
state. Rogers v. Grimaldi. 875 F.2d 994, 1002 (2d Cir. 1989). Accordingly, New
York's choice oflaw rules apply to this case.
Under New York's choice oflaw rules,the laws ofthe jurisdiction having the
greatest interest in the litigation apply.
GlobalNet Financial.Com. Inc. v. Frank
Crystal & Co.. 449 F.3d 377, 384(2d Cir. 2006)(quoting Schultz v. Bov Scouts of
Am.. Inc.. 65 N.Y.2d 189,197(1985)). The jurisdiction with the greatest interest is
generally the jurisdiction where the tort occurred.
Licci ex rel. Licci v. Lebanese
Canadian Bank. SAL.672 F.3d 155, 158(2d Cir. 2012).
Each of the instant claims and counter-claims concern conduct which
occurred in New Jersey, where DC! was located. As such. New Jersey law applies.
To prove a breach offiduciary duty,the plaintiff must prove:(1)the existence
s ft.'he iitir
ofa fiduciary relationship;(2)the breach ofa ^iity imposed by that relationship; and
(3) harm. Inventory Recovery Corp. v. Gabriel. No. 2:11-CV-01604, 2012 WL
2990693, at *4 (D.N.Jf. July 20, 2012)(citing McKelvev v. Pierce. 173 N.J. 26, 57
(2002)). A fiduciary relationship exists when ^'one party places trust and confidence
in another who is in a dominant or superior position." McKelvev. 173 N.J. at 57.
Such a relationship imposes a duty of loyalty upon the fiduciary. Id. (citing
Restatement(Second)of Torts § 874(1979)). The duty ofloyalty is breached when
the fiduciary acts against the employer's interest. S^ Lamorte Bums & Co. v.
Walters. 167 N.J. 285, 302(2001).
A fiduciary violates no duty to his employer by acting for his own benefit if
he makes a full disclosure ofthe facts to an acquiescent employer and takes no unfair
advantage ofhim. Restatement(Second)of Agency § 390,Cmt. a). A fiduciary may
even arrange to start a competing business as long as he does not engage in secret
competition or solicit the employer's customers.
Lamorte. 167 N.J. at 303.
Disgorgement of compensation may be a remedy.
Kave v. Rosefielde. 223 N.J.
218, 222 (2015). But such disgorgement is limited to the compensation received
during pay periods in which the fiduciary acted disloyally. Id.
In the instant case, there are various alleged breaches of the duty of loyalty.
However, none survives the fires of close examination. As a threshold matter, Mr.
Antebi was a fiduciary for DCI. As a one-third shareholder running day-to-day
operations, DCI invested great confidence and trust in him. See McKelvev. 173 N.J.
at 57. As such, Mr. Antebi owed DCI a duty d?loyalty.
Using Comnanv Assets for Personal Gain
Mr. Eddi testified that he knew of Mr. Antebi's use of company assets for
personal gain in early 2008 -just a few months after DCI was started. (Tr. at 30-
31). Rather than immediately demand repayment, disgorgement, or termination, Mr.
Eddi and Mr. Moses set up DCI's due-to/due-from system for the express purpose of
allowing employees,including Mr. Antebi,to use company credit cards and accounts
to make personal purchases. (Tr. at 31, 74-75, 134, 200, 203). Therefore, DCI
ratified the practice as opposed to proscribing the behavior.
Seidman v. Clifton
Sav. Bank. S.L.A.. 20£^I^.J. 150, 177^ (2011)(finding that when corporate actions
have been approved or ratified, the propriety of those actions are to be presumed
correct). In any event, having knowingly.allowed Mr. Antebi to use the due-to/due-
from system to make personal purchases using;0CI assets for more than 4 years,DCI
cannot now complain about its use after falling out with Mr. Antebi.
Millman. 210 N.J. 401, 417(2012)(precluding relief under the doctrine of laches
when there is an "unexplainable and inexcusable delay" in exercising a right).
Personal Tax Obligations
One would think that eveii if personal purchases were permitted, surely
paying personal tax burdens with company money would be impermissible. But at
DCI,that would be incorrect. Mr. Eddi, himself, the overlord of DCI,signed a DCI
check to pay for Mr. Antebi's personal tax obligations to New Jersey Tax Authority.
Aside from implying the underreporting df'-^Mr. Antebi's income, Mr. Eddi's
signature substantiates Mr. Antebi's claim that Mr.Eddi knew about the payment of
personal tax obligations with DCI assets. Having permitted this practice, DCI is
precluded from now calling it a breach ofthe duty ofloyalty.
at 177; Fox, 210 N.J. at 417.
Next, DCI claims Mr. Antebi's acts in furtherance of Goot constituted a
breach of the duty of loyalty. But this argument fails for a few reasons. First, Goot
was not a competing business. DCI admits that Goot was established to "sell
electronic merchandise via the internet, to end users in Brazil." (Dkt. No. 65, at 13).
DCI does no business in Brazil, does not allege that Goot sold the same products,
and generally does not sell to end users. (Tr. at 166). DCI's claim seems to rest on
the fact that Mr. Antebi was attempting to get involved in any business. Yet, DCI
had no problem with Mr. Eddi and others operating DDD - an entity that actually
Second, since Goot was not a competing business, DCI needed to show that
Mr. Antebi (a) worked on Goot during DCI time; or (b) used DCI assets for Goot.
No testimony established formal working hours for Mr. Antebi. Therefore, no
evidence suggests that he should have been working on DCI work at any specific
time during the day but was instead working on Goot. The absence ofsuch evidence
is fatal to any request for disgorgement of compensation. See Kave.223 N.J. at 222.
DCI alleged that Mr. Antebi's trial attorney, Frederick Biehl, was paid, using
DCI money, to assist with the formation of Goot. However, DCI could not muster
so much as a line item on a financial report, much less a check or record of transfer
to Mr. Biehl. In any event, even if Mr. Antebi had paid for legal services to assist
his personal endeavors, there would be no harm since employees of DCI were
authorized to use"company assets for personal purchases.
Finally, and perhaps most importantly, Mr. Antebi, presented the business
plan for Goot to DCI before taking a single step toward establishing the entity.
(Defendant's Exhibit LL, at 111). Accprding,t6< Mr. Eddi, he "expressly rejected"
the idea on behalf of DCI. By presenting the idea to DCI and waiting for DCI to
reject it first, Mr. Antebi satisfied his duty as a fiduciary.
Alper v. Simon. No.
A-2016-11T4, 2014 WL 2864998, at *21 (N.J. Super. Ct. App. Div. June 25, 2014)
(There is no diversion ofa corporate opportunity claim ifthe defendant presented the
corporation with the business opportunity and the corporation rejected it).
The use of DCI assets for personal purchases was fair game. As such, Mr.
Antebi's purchase of Yankees tickets for personal use with company cards and
accounts did not breach any duty.''
DCI seeks disgorgement of the proceeds Mr. Antebi received from his sale
of the tickets on StubHub. However, if the tickets constituted a personal purchase,
as argued by DCI,then they were Mr. Antebi's property to dispose of as he pleased.
2 Ironically, despite charging the tickets to Mr. Antebi's due-to/due-from account(necessarily
admitting that the tickets constituted a personal purchase), DCI still sought to list the tickets as
tax-deductible company expense. (Tr. at 202). This means DCI sought a tax deduction and a
reimbursement from Mr. Antebi for the same expenditure.
The sale of tickets by their owner could not establish a usurpation of a corporate
opportunity, especially since selling sports tickets is not "in the line of [DCFs]
business." See Alner. No. A-2016-11T4,2014 WL 2864998, at *21.
DCI has failed to establish any claim for breach of a fiduciary duty. As such
this Court finds for Mr. Antebi on the fiduciary duty claims.
Under New Jersey law, conversion is the intentional exercise of dominion or
control over personal property that seriously interferes with the right of another to
Mueller v. Tech. Devices Corp.. 8 N.J. 201, 207 (1951);^ also
Restatement (Second) of Torts § 222A(1). "The essence of a conversion claim is
that one party exercises the right of ownership over property belonging to another
without that person's permission.'''' Pollen v. Comer. No. 05-CV-1656-JBS, 2007
WL 1876489, at *11 (D.N.J. June 27, 2007)(emphasis added). There can be no
conversion where the plaintiff consented to the interference. See Sovereign Bank v.
United Nat'l Bank. 359 N.J. Super. 534,538(App. Div. 2003);s^ also Restatement
(Second)ofTorts § 252. Likewise, where the owner ofthe property expressly ratifies
the conversion, he cannot recover for conversion ofthat property.
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Personal expenses on corporate accounts
Plaintiff claims Mr. Antebi converted DCI assets by using company cards
and accounts to pay for personaP expenses. 'As explained, supra §111(2), each
shareholder was permitted to make unfettered personal purchases using company
assets. (Tr. at 74-75,134,200,203). In other words, DCI consented to Mr. Antebi's
interference with its rights thereby negating any conversion claim. Pollen. No. 05CV-1656-JBS,2007 WL 1876489, at *11: Sovereign Bank. 359 N.J. Super, at 538.
As established, supra §111(2), Mr. Antebi owned the Yankees tickets.
Conversion requires dominion over someone else's property.
Mueller. 8 N.J. at
207 (emphasis added). He could not have converted the proceeds of the sale of
property he owned.^ This Court finds for Mr. Antebi on the claim ofconversion.
Fraud requires (1) a material misrepresentation of fact (2) knowledge or
belief of its falsity (3)intention of inducing reliance (4)reasonable reliance and (5)
damages. See Jewish Ctr. of Sussex Ctv. v. Whale. 86 N.J. 619.624(1981).
3 Under oath, Mr.Antebi admitted that he did not report the more than $30,000 worth of
income from the sale ofthese tickets to the IRS or the New Jersey Tax Authority. (Tr. at 306).
. M- '
DCI claims it reasonably relied on Mr. Antebi's allegedly purposeful
misidentification of personal purchases to its detriment. But DCI offered no reliable
evidence of any misidentifications, let alone purposeful misidentifications. Given a
list of purchases that included Costco, various gas stations, restaurants, and fashion
designers, Mr. Eddi admitted that he could not guarantee that the items were not
corporate in nature. (Tr. at 40). In other words, he could not say for sure they were
misidentified. There was talk of confusing letters - b's (for business) that looked
like p's (for personal) and vice versa. But DCI offered no credible evidence
suggesting the confusion was purposeful.
To be sure, this Court seriously doubts that Mr. Antebi truthfully identified
every purchase. But it was DCFs burden to identify those incidents where the
identification was wrong and to prove Mr. Antebi knew or believed it was wrong.
DCI failed. Therefore, this Court finds for Mr. Antebi on the fraud claim.
To assert a constructive trust, a plaintiff must establish that a wrongful act
occurred which resulted in a transfer of property that would create an unjust
enrichment if the defendant were dlowed to keep that property.
Castoro. 51 N.J. 584,588-89(1968). In the instant case, DCI failed to establish any
wrongful act. Therefore, a constructive trust requek fails.
Unjust enrichment requires that plaintiff show that it expected remuneration
from the defendant. See VRG Corpi'V. GKN Rfehltv Corp., 135 N.J. 539,554(1994).
Where that expectation is present and reasonable, New Jersey law raises a quasicontractual obligation on the part of the defendant to remunerate plaintiff.
Paul Fire & Marine Ins. Co.. v. Indem. Ins. Co. of N. Am.. 32 N.J. 17, 22 (1960).
But a quasi-contract is unnecessary where an actual binding agreement exists.
DCI reasonably expected Mr. Antebi to repay the money spent on personal
expenses. The very existence of the due-to/due-from account establishes this fact.
Mr. Antebi knew that he was supposed to repay DCI. (Tr. at 252). Put differently,
the parties agreed, however implicitly, that Mr. Antebi could use DCI assets if he
paid DCI back later. That agreement created a binding contract. S^ N.J.S.A. §
12A:1-303(a). \i would amount to unjust enrichment if Mr. Antebi could keep the
benefit of all of the personal expenses without compensating DCI. But since Mr.
Antebi agrees that he is obligated to repay DCI, there is no need for this Court to
impose a quasi-contractual obligation. Mr. Antebi owes DCI and he knows it.
But there is a major problem in figuring out how much Mr. Antebi actually
owes DCI. At very least, all of the expenses that Mr. Antebi admits were personal
expenses must be repaid. But DCI was wholly unable to carry its burden in
establishing what expenses should have been listed as personal expenses.
Mr. Moses testified that he had no persdhal knowledge of what was personal
versus what was corporate. (Tr. at 164). He said that he went off what Mr. Eddi told
him. (Tr. at 159). But at trial, Mr. Eddi testified that he could not guarantee that all
the items he identified as personal were in fact personal. (Tr. at 40-41,76-77). DCTs
inability to establish which items were personal as opposed to corporate expenses
will not result in this Court guessing blindly. It was DCTs burden to establish that
number and it failed. DCI will only be awarded what it established it was owed.
Minority Shareholder Oppression
To establish shareholder oppression, a shareholder must establish that "those
in control" of the closely-held corporation "acted oppressively" toward him.
Oppression has been found where the controlling
shareholders awarded themselves excessive compensation, furnished inadequate
dividends, misapplied and wasted corporate funds and where the fair expectations of
the minority shareholder are not met due to his "rights or interests" as a shareholder
I ' ...
L''J. .V ; .
being contravened by the wrongful acts of those in control.
Bikon Com.. 143 N.J. 168, 180(1996).
However,the doctrine of acquiescence precludes shareholders from "sitting
by or acquiescing in the wrongful conduct ofthe corporation" and then seeking a
remedy for that wrongful conduct long after the conduct occurred. Casey v. Brennan.
344 N.J. Super. 83,118(App. Diw 2001^ affd,^ L73.N.J. 177(2002).
If nothing else, this case has shown, again and again, why a knowing waiver
of wrongful conduct cannot be conveniently withdrawn. Mr. Antebi claims that the
other shareholders oppressed him by diverting funds to their other businesses,
imposing large administration fees against DCI, charging inflated rent charges, and
funneling money to fictitious charitable contributions. (Dkt. No. 66, at 33). But, the
evidence showed that Mr. Antebi was aware of all of these alleged diversions. He
admitted that he knew about the exorbitant rent charges and administration fees. (Tr.
at 337-38). Evidence showed that Mr. Antebi was responsible for negotiating or re, i•
negotiating the rent costs for DCI, which, after his efforts, resulted in an $84,000 rent
charge for space that should liave cpsted le":^' than $5,000. (Tr. at 228; s^ also
Defendant's Ex. I. at 2).
Even more troublesome, Mr. Antebi seems to insinuate that he knew that the
inflated numbers were false and were entered so that Mr. Eddy could show a profit
in DDD "for tax purposes." (Tr. at 338). Yet Mr. Antebi did nothing about what
probably amounts to tax fraud. Apparently, using the company as a community ATM
was too good a thing to disturb. It was only in response to DCI's claims against Mr.
Antebi that he complained of oppression. But in doing so, he admits his complicity.
Just as DCI could not approve Mr. Antebi's use of DCI money for personal
purchases for 4 years before complaining about it, Mr. Antebi could not sit by and
knowingly enjoy the fruits ofthis shady corporate scheme and then shout "minority
oppression" after being called a thief. Mr. Antebi participated in every stage of the
now-complained-abSbiit iilisapbropriatioh.' At Veiy least, he knew it was going on.
His assertion offraudulent charitable contributions suffers a similar fate. Mr.
Antebi himself made numerous "charitable contributions" to Yeshiva that DCI
claims were actually payments for his children's education. How can he now
complain that others diverted funds to "charity" for their own purposes? All ofthese
supposed charitable contributions may well find themselves the subject of a tax
inquiry on the part ofthe donors and the recipients.
This Court finds that no wrongful act sufficient to constitute shareholder
oppression since Mr. Antebi was complicit in each act. As such,this Court finds for
DCI on the oppression claim.
Not a single line in the trial transcript or post-trial brief directs the Court to
any exhibits or testimony establishing the value ofDCI. Since neither party has seen
fit to so direct the Court's attention, the Court is under no obligation to do that for
them by sifting through the vast volume of disorganized exhibits and deposition
transcripts. All that can be said is that Mr. Antebi owes DCI for personal expenses
in the amount of $240,676.03. That figure accounts for DCI's failure to prove that
disputed expenses were in fact personal. It also accounts for Mr. Antebi's failure to
prove the amounts that he claims he accidentally misidentified as personal. Mr.
Antebi is, however,,entitled to offset the amoiihtlje owes against the $45,000 loan to
the comply. Therefore, Mr. Antebi owes $195,676.03 to DCI."*
For the above reasons,this Court awards DCI $195,676.03 with pre-judgment
interest. From the brazen fabrication of accounting numbers for "tax purposes" to
the established practice of using corporate assets for everything from facilitating
extra-marital affairs to helping interrelated companies show a profit on their books,
this case suggests serious misconduct by the individuals at DCI. That neither party
could establish either oftheir claims is a testament to how complicit each party was
in the other's virohgdoing, to say nbtlimg of tiiyboidne of each in bringing these
accusations in open court despite the distinct air of illegality.
s/Sterling Johnson, Jr.
Dated: July 13, 2015 ;
As Mr.Antebi remains a 1/3 shareholder, he remaiijs entitled to 1/3 of any dividends paid
out by the companyiand upon digsolutipn,-f/3«6f thelprbfits of the company.
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