Bello Paradiso, LLC v. Hatch (In re Hatch)

465 B.R. 479
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedFebruary 12, 2012
DocketBankruptcy No. DK 11-02449; Adversary No. 11-80307
StatusPublished
Cited by6 cases

This text of 465 B.R. 479 (Bello Paradiso, LLC v. Hatch (In re Hatch)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bello Paradiso, LLC v. Hatch (In re Hatch), 465 B.R. 479 (Mich. 2012).

Opinion

OPINION AFTER TRIAL

SCOTT W. DALES, Bankruptcy Judge.

I. INTRODUCTION

This case involves a tangled web of deception surrounding the sale of fashionable Pandora jewelry, and has more than its' share of plots, subplots, and Shakespearean overtones. While both parties to this dispute were busy deceiving the jeweler, one of them picked the other’s pocket. Although it is tempting in such a case to cry “a plague on both your houses,”1 after sifting through the evidence, especially the email trail that documents the deception with surprising candor, the court has concluded that the Plaintiff is entitled to judgment in its favor. This Opinion constitutes the court’s findings of fact and conclusions of law in accordance with Fed.R.Civ.P. 52, made applicable to this adversary proceeding by Fed. R. Bankr.P. 7052.

II. JURISDICTION

The court has jurisdiction over the Debtors’ bankruptcy case pursuant to 28 U.S.C. §§ 157(a) and 1334(a), and the United States District Court’s referral under LCivR 83.2(a). This adversary proceeding is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(I) in which the court may enter final judgment. The court also has ancillary jurisdiction to establish the amount of the debt at issue. Longo v. McLaren (In re McLaren), 3 F.3d 958, 965 (6th Cir.1993).

III.ANALYSIS

The following recitation comes from the trial testimony of Messrs. Davies and Hatch, and the exhibits admitted at trial, including the transcripts of the depositions of Matthew Davies (“Mr. Davies”) (Exh. J), Bartley Hatch (“Mr. Hatch”) (Exh. 24) and Diana Hatch (“Mrs. Hatch”) (Exh. 25).

A. Background

In May 2008, the Debtors, Bartley and Diana Hatch, opened a women’s clothing and accessories boutique called “Isabelle’s.” Mrs. Hatch, who had some limited experience working in a gift shop, ran and managed the store while Mr. Hatch, who was at one time a CPA, took care of the books in his spare time while working at Whirlpool Corporation.

One day in the summer of 2008, two sales representatives from Pandora Jewelry, LLC (“Pandora”), walked into Isabelle’s and spoke to Mrs. Hatch about carrying Pandora’s jewelry line. Exh. 25, 15:9-16:9. Pandora is primarily known for the glass beads it designs, manufactures and sells, but it also makes other products like readymade “mix and match” jewelry. Through the years, Pandora has developed a healthy demand for its beads that is closely identified with its brand and trademark.

Several months after the visit from the Pandora representative, the Hatches decided to sell the line. Mrs. Hatch performed an internet search and found a website that she thought was Pandora’s, but was in fact a website operated by Plaintiff Bello Paradiso, LLC (“Bello”). Exh. 25, 19:15-17. A representative at [483]*483Bello named Molley disclosed that Bello was not Pandora or an authorized Pandora retailer, but she did offer Mrs. Hatch a loan to purchase the start-up inventory that Pandora required to begin carrying its line. Exh. 25, 19:23-20:3. As the relationship between the Hatches and Bello developed, it became clear that Bello’s willingness to make the startup loan depended upon the Hatches’ agreement to re-sell Pandora beads to Bello.

The reason Bello made this offer was that it could not purchase inventory for itself directly from Pandora because it had no retail store, and was not an authorized Pandora retailer. Evidently, Pandora wanted its customers to have an actual retail experience and did not want anyone to sell its product exclusively over the internet, as Bello did. Nevertheless, Bello sold Pandora beads by recruiting retailers to purchase more beads than they could sell in their respective stores, and purchasing the surplus beads at cost or slightly above cost, depending upon the agreement. This arrangement violated the Authorized Retailer Agreement that Pandora required of its retailers, including the Hatches. More specifically, Section 7(d) of the Agreement provides:

All sales of Pandora Jewelry Products must be at retail only. Authorized Retailer may not sell or ship Pandora Jewelry Products to any other retailer or wholesaler without prior written consent of Pandora, which consent may be withheld in Pandora’s sole discretion.

Exh. 1, p.3, Sec. 7(d). In other words, Bello’s business model was based on recruiting retailers who were willing to breach their contract with Pandora and ignore any possible trademark, copyright or other intellectual property protections that Pandora might enjoy.

In exchange, for a retailer’s cooperation, Bello would usually purchase its share of the beads for 10% above the authorized retailer’s cost. It would then re-sell the beads on the internet for less than Pandora’s authorized retailers.

At some point, Pandora became aware of Bello and its business model, and on December 19, 2008, it filed suit against Bello in the United States District Court for the Eastern District of California, alleging patent and trademark infringement, copyright violations, and unfair competition. Exh. B.

In February 2009, the Hatches, on behalf of Isabelle’s, signed the Authorized Retailer Agreement with Pandora even though they immediately planned to breach it. They were aware that Pandora was suing Bello for damages allegedly resulting from similar arrangements Bello made with other authorized retailers, but they nevertheless agreed to supply beads to Bello under the following conditions.

First, the parties decided that instead of Bello’s purchasing beads from the Hatches at 10% above cost, Bello would make a $16,000.00 interest free loan to the Hatches (the “Start^Up Loan”) to enable them to buy the initial Pandora inventory. When Isabelle’s ordered beads from Pandora, it would also order beads for Bello, of course while concealing Bello’s interest in the transaction. Bello would wire-transfer money into the Debtors’ personal bank account, which they were supposed to use to pay for Bello’s disguised purchase. The Debtors would then keep Isabelle’s portion of the order and ship Bello’s share using shipping labels that Bello supplied for this purpose.

The parties further agreed that the Debtors did not have to repay the loan in cash. Instead, for every dollar of Pandora inventory the Debtors re-sold to Bello, Bello would reduce the Start-Up Loan by 10% of the purchase. See Exh. 3. In addi[484]*484tion, the parties would continue the arrangement for about one year, or until the Debtors re-sold $240,000.00 worth of beads to Bello. After that time, Bello would continue to order Pandora product through the Debtors at 10% over Isabelle’s cost, plus shipping. Finally, Bello, through its owner Mr. Davies, made it clear that Bello only wanted beads and nothing else.

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Cite This Page — Counsel Stack

Bluebook (online)
465 B.R. 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bello-paradiso-llc-v-hatch-in-re-hatch-miwb-2012.