ABC v. DEF

Filing 4

ORDER. 1. The Sealing Order shall be canceled, and all documents placed under seal in this Court shall be returned to the public docket, and forthwith be entered on the Court's Electronic Case Filing ("ECF") system without restrictio n, with the exception that a redacted version of the Agreement, in the form attached as Exhibit A hereto, shall be substituted as Exhibit 2 to the First Declaration of Thomas A. Holman in Support of Petitioners' Petition for Confirmation of Arbi tration Award Finding Breach of Contract, and Awarding Attorneys' Fees and Interest dated August 28, 2020 ("Holman Declaration"). The Holman Declaration with the redacted Agreement as Exhibit 2 shall be filed on the public docket. 2. S hould a further submission of the Agreement to this Court become necessary,only the redacted version of the Agreement, in the form attached as Exhibit A hereto, may be filed on the public docket. Should the Court request an unredacted version of the Agreement, it shall be provided to the Court and filed under seal. Please see STIPULATION RECOGNIZING AND CONFIRMING ARBITRATION AWARD AND CANCELING THE SEALING ORDER OF AUGUST 28, 2020 for more information. IT IS SO ORDERED.(Signed by Judge Sidney H. Stein on 10/27/2020)(jus) Modified on 10/28/2020 (jus).

Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Brian Newberry and Kameren Newberry,
individually and as Trustees of the Newberry
F1mily Trust,
Petitioners,

Case No. 20-CV-7005 (SHS)(JLC)

-against-

Sri Prayal Wijegoonaratna and Ball Pond Capital,
LLC,

Respondents.

STIPULATION RECOGNIZING AND CONFIRMING
ARBITRATION AWARD AND CANCELING
THE SEALING ORDER OF AUGUST 28, 2020
WHEREAS this matter has come before the Court pursuant to "Petition for Confirmation
of Arbitration Award Finding Breach of Contract, and Awarding Attorneys' Fees and Interest",
dated August 28, 2020 of the Petitioners.
WHEREAS Petitioners Brian Newberry and Kameren Newberry are seeking
confirmation of the Arbitrator' s Final Award dated June 16, 2020 in The Matter of An
Arbitration Between Brian Newberry and Kameren Newberry, individually and as Trustees of
the Newberry Family Trust (Claimants/Counterclaim/Respondents)(herein "Petitioners") and Sri
Prayal Wijegoonaratna and Ball Pond Capital, LLC (Respondents/Counterclaimants)(herein,
"Respondents"), American Arbitration Association Case No. 01-19-0000-7799 (the "Award").

Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 2 of 18
',

"

WHEREAS the arbitration was for breach of a settlement agreement dated as of April 24,
2016 between Petitioners with Respondents ("the Agreement"), and the Agreement contained an
agreement to arbitrate "pursuant to the AAA Commercial Rules, to be conducted by a single
arbitrator in New York, New York."

WHEREAS in breach of the Settlement Agreement, Petitioners had alleged inter alia that
Respondents failed to pay the amount due under the Settlement Agreement totaling seven
hundred thousand dollars ($700,000.00).
WHEREAS in response to Petitioners' arbitration claims, Respondents filed their Answer
and Affirmative Defenses, a Counterclaim, an Amended Counterclaim, and then a Second
Amended Counterclaim.
WHEREAS the parties arbitrated their claims before Arbitrator Richard Ziegler of the
AAA who issued the Final Award on June 16, 2020, which incorporated the Partial Final Award.
WHEREAS the parties agreed that any AAA award shall be final and binding and that
judgment upon the AAA award may be entered in any court having jurisdiction thereof.
WHEREAS the parties agree that the Court has subject matter jurisdiction over this
matter pursuant to 28 U.S.C. § 1331 , the Federal Arbitration Act, 9 U.S .C. § 1, et seq. and 9
U.S.C. § 201 et seq. and has authority to confirm the arbitration award pursuant to the Federal
Arbitration Act, 9 U.S.C. § 9.
WHEREAS the Arbitrator made inter alia the following awards and findings :
•
" ... Claimants' first claim, for breach of contract, is sustained against Respondent
Ball Pond Capital, LLC. Claimants Brian Newberry and Kameren Newberry, as Trustees
of the Newberry Family Trust, are entitled to recover damages on behalf of the Newberry
Family Trust from Respondent Ball Pond Capital, LLC in the amount of $700,000.00
plus interest ... ;"
•
"Respondent Ball Pond Capital, LLC shall pay simple interest on the damages
amount awarded of $700,000 at the rate of 3.00% per annum from January 1, 2019 until

2

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Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 3 of 18

the date of payment of the award. That interest amount is $20,223 .22 through June 16,
2020 and $57.53 per day thereafter .. . ;"
•
"Claimants' third claim, for reimbursement of fees and costs, is sustained against
Respondents in the total amount of $205,935.43 as follows : a. Respondents, jointly and
severally, shall reimburse 55% of Claimants' reasonable attorneys fees, which results in
the amount due to Claimants of $198,811.93 ;"
•
"Respondents, jointly and severally, shall reimburse 55% of Claimants'
reasonable costs for transcripts and travel, which results in the amount due to Claimants
of $2490.75 ;"
•
"The administrative fees and expenses of the American Arbitration Association
[totaling] $12,975 .00 shall be borne 55% by Respondents, an excess of $1636.25 above
the apportioned costs previously incurred by Respondents; and the compensation and
expenses of the arbitrator [totaling] $59,930.00 shall be borne 55% by Respondents, an
excess of $2996.50 above the apportioned fees and expenses previously incurred by
Respondents. Therefore, Respondents, jointly and severally, shall reimburse Claimants
the sum of $4,632.75 in respect of such costs;"
•
"Respondents, jointly and severally, shall pay simple interest on the total amount
of costs and fees awarded of $205,935.43 at the rate of 3.00% per annum from the date of
this Final Award until such amount is paid in full . That amount is $16.93 per day;" and,
•
"The above sums are to be paid on or before 30 days from the date of transmittal
of this Final Award to the Parties. To wit, Respondent Ball Pond Capital, LLC shall pay
the sum of $926,158.65 plus interest of $74.46 daily from the date of this Final Award,
and of that amount, Respondent Sri Prayal Wijegoonaratna is jointly and severally liable
for the sum of $205,935.43 plus interest of $16.93 daily from the date of this Final
Award."
WHEREAS by Order dated August 28, 2020 (the "Sealing Order"), the Court granted the
Petitioners' request to maintain temporarily the following information under seal: (a) the Petition
by the Newberrys for Confirmation of Arbitration Award Finding Breach of Contract, and
Awarding Attorneys' Fees and Interest; (b) the Memorandum of Law in Support of Petition for
Confirmation; and (c) the First Declaration of Thomas A. Holman and the eight exhibits attached
thereto, in order to permit Respondents to apply for sealing of these documents.
WHEREAS the Sealing Order specified that it would automatically expire on September
7, 2020 unless otherwise ordered by the Court.
WHEREAS the parties consent to cancelation of the Sealing Order and to the entry of a
Judgment confirming the AAA Award on the terms set forth below.

3

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Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 4 of 18

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between
the parties, as follows :
1.

The Sealing Order shall be canceled, and all documents placed under seal in this

Court shall be returned to the public docket, and forthwith be entered on the Court' s Electronic
Case Filing ("ECF") system without restriction, with the exception that a redacted version of the
Agreement, in the form attached as Exhibit A hereto, shall be substituted as Exhibit 2 to the First
Declaration of Thomas A. Holman in Support of Petitioners' Petition for Confirmation of
Arbitration Award Finding Breach of Contract, and Awarding Attorneys' Fees and Interest dated
August 28, 2020 ("Holman Declaration"). The Holman Declaration with the redacted Agreement
as Exhibit 2 shall be filed on the public docket.
2.

Should a further submission of the Agreement to this Court become necessary,

only the redacted version of the Agreement, in the form attached as Exhibit A hereto, may be
filed on the public docket. Should the Court request an unredacted version of the Agreement, it
shall be provided to the Court and filed under seal.
3.

The Court has subject-matter jurisdiction over this matter under 28 U.S .C.

§ 1332(a)(2), because diversity of citizenship is complete between Petitioners, residents of the
State of California, and Respondents, who reside or have an office in the State of New York, and
the amount in controversy exceeds $75,000, exclusive of interest and costs. The Court further
has subject-matter jurisdiction under 9 U.S.C. § 9, which grants original federal jurisdiction over
an action or proceeding to confirm an arbitration award entered in a proceeding in the United
States. See 9 U.S .C. § 9.
4.

The parties had agreed to the application of the AAA Commercial Rules which

provides in relevant part that " [p]arties to an arbitration under these rules shall be deemed to

4

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-----------------------------------------------.
Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 5 of 18

!

have consented that judgment upon the arbitration award may be entered in any federal or state
court having jurisdiction thereof "
5.

No genuine dispute as to any material fact exists and Petitioners are entitled to

judgment as a matter oflaw for the entire Arbitration Award entered by the AAA in the matter of
Brian Newberry and Kameren Newberry, individually and as Trustees of the Newberry Family
Trust, Claimants/Counterclaim-Respondents, vs. Sri Prayal Wijegoonaratna and Ball Pond
Capital, LLC, Respondents/Counterclaimants, AAA Arbitration Case No. 01-19-0000-7799 on
June 16, 2020 (the "AAA Award") as follows :
a.

An award of $926,158.65 against Respondent Ball Pond Capital, LLC, which

represents compensatory damages of $700,000 and reimbursement of fees and costs of
$226,158.65 and of that amount, Respondent Sri Prayal Wijegoonaratna is jointly and severally
liable for the sum of $205,935.43 plus interest of $16.93 daily from the date of the award, June
16, 2020, through the date of the judgment.
b.

An award of prejudgment interest against Respondent Ball Pond Capital, LLC of

$74.46 daily accruing from the date of the award, June 16, 2020, through the date of~
~

fthejudgment.
c.

:,

An award against Respondents Sri Prayal Wijegoonaratna and Ball Point Capital,

LLC, jointly and severally, of post-judgment interest pursuant to 28 U.S.C. § 1961 accruing from
the date of this judgment until such date as judgment in this matter has been satisfied in full.
d.

~)

An award against Respondents Sri Prayal Wijegoonaratna and Ball Point Capital,

LLC, jointly and severally, of the attorneys' fees of$12,000 and expenses of $1 ,212.67 incurred
in the bringing of this proceeding.

5

Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 6 of 18

6.

Upon the Court's so ordering of this stipulation Petitioners shall on ten days

notice to the undersigned Respondents' attorneys submit a Final Judgment Recognizing and
Confirming Arbitration Award which will include the amounts specified in paragraph 5, infra,
and such Final Judgment shall become effective upon entry by the Court.
7.

This Stipulation constitutes the entire agreement of the parties, and no prior

statement, representation, agreement, or understanding, oral or written, will have any force or
effect.
8.

This Stipulation may be executed in counterparts and by e-mail or facsimile

transmission, each of which shall be deemed an original for purposes of this Stipulation.

Dated: New York, New York
October 23 , 2020

s~ ~
Saord

Dated : New York, New York
October 23 , 2020

c~ ~~/ Tica.. 4. ti, I..N_

Rosen, Esq.
~
Rosen & Associates, P .C.
747 Third Avenue, 20th floor
New York, New York 10017
Attorneys for Respondents

ITISSO ~
Dated:

Thomas A. olman, Esq.
Holman Law, P .C.
99 Park Avenue, Suite 2600
New York, New York 10016
Attorneys for Petitioners

~D

(!/r/!/J0 JJ )bJ

6

Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 7 of 18

EXHIBIT A

Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 8 of 18

REDACTED

~EREAS. N~y/PCJ

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NOW THEREFORE · ex.~..~ r
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Newberry 00032

Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 9 of 18

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Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 11 of 18

6.

Newberry_00035

Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 12 of 18

11.

r any p ~ of th•
bcld inffilid, the imtalidi1;y
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Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 13 of 18

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Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 14 of 18

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Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 15 of 18

lN VIITNESS
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Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 16 of 18

CAL 'F ORNIA AL. - PURPOS,
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Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 17 of 18

CALIF. R
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Newbeny 00041

Case 1:20-cv-07005-SHS Document 4 Filed 10/27/20 Page 18 of 18

REDACTED
MJ(IXA
COIIFIDEJl'TIAL
A.

!°'Jt"Wberry/PCI :1,rtt to hat•~ no affirmatjve contact with t.ht: following
~opi~ in m,:v · mnr.nrr wh:1t!\orw•r . whcthC"r ctin-ct or mdittct,
;x:r~onally vr ~ough ..a:cther pcr~on or entity. indudin~ but not
limited to cnntaqr· by mranit of in-p<'~n discussions. tdcohouc- . text.
ennui . ktt<'r. of1 social m~: ( l}
; (2)
Sf'W ; and j;J) anr mcmtx-r· of $P'\N.'$ frululy. ln th~

e,teUl

that

c9ntJlct~ New~rry/PCI . s~t-w-rry/PCl will not rcspoud :w<l ,1till noli!y
Michael Tcin, Esq. immediately.
8.

Within rhnx dats of the Effcctr,.-c- Uatc, Ncwbcrry/,P<.;l will deliver to
l..cwis T1;in. P .L .. A ~. Michael Tein. E~. , ali mattirials relating l<> Qr
n."Cci1,•cd from
thot .ire in ~~v,,.beny /PCl"s pos.~qion.
custody or contt(Jl. indudinr, but not limitrd tn clr.ctmnk mntcrinl!\,
and aH cnptc-:~ of~y such m3tcna.ls.. by f,'cdcrat l::xpress.

C.

!'lewberr)·/PCf wi.11 dcsrroy and ddr.tr. ony rt-mruning electronic copies
of any such ma.t~rials.

D.

.:--:~ucn-~•/PC1 a*.~ tu 1~.. 1

; ts

confid<'nna.l • .
and not clisc:::losc or cause

to be disclosed. wheth~r directly or inc:iirt:ctly. in any manner
whatSOC'\·cr. arw and rul personi\l information relating to

f,

Withir. four d:1}'5. cf the: Effective Datr. Nr.'1i.·hr.rry anci hi tit wife.
Kamc.-rcn :-,i("9.•~ri:·. 5ha!l t'.X~c-uk t hr- au:ir.hr.d c·tmfidrnti:11
r.rl't'ifk.otior.s and Ntwb<i!rry / PCI shall ddiver the executed
(:<:rti1kutions to Mich:iet Tr.m ,

f.

e.~-

Nc-wb<'.'rry,·/PCJ agrrr that :-my d i$cll)SUn:s by K.,.mere-n N~berty u-:
viol~tion of th~ qoi,fid~nti.rtl~ty t~m1s contained in this ~mcnt WJ.d
her c:onf.dc-ntt.:\J certification. will con:stit.ute c.1 brt:uch of tru~
AW'='<-mrnr by :'\149,•h(-rry/PC T
.

10