Cohen v. Schroeder

248 F. Supp. 3d 511, 2017 U.S. Dist. LEXIS 50429
CourtDistrict Court, S.D. New York
DecidedMarch 31, 2017
DocketNo. 15 Civ. 6881 (RJS)
StatusPublished
Cited by9 cases

This text of 248 F. Supp. 3d 511 (Cohen v. Schroeder) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Schroeder, 248 F. Supp. 3d 511, 2017 U.S. Dist. LEXIS 50429 (S.D.N.Y. 2017).

Opinion

OPINION AND ORDER

Richard J. Sullivan, District Judge:

Plaintiff Brian S. Cohen (“Cohen”) brings this action against Theodore F. Schroeder (“Schroeder”) alleging that Schroeder is. the alter ego of Skoop Media Associates, Inc, (“Skoop”), a small, nonpublic Delaware corporation that both Cohen and Schroeder have served as directors and officers. (Doc. No. 1 (“Compl.”).) Cohen seeks to hold Schroeder personally liable for indemnification and advancement obligations owed by Skoop to Cohen under a judgment obtained in the Delaware Court’ of Chancery in 2015.

Although this litigation has, to date, borne all the earmarks of a street fight, in which each side has repeatedly accused the other of “impure motives” and “ethical misconduct” (Doc. No. 36), this case is in fact a side show. The main event in the parties’ long-running legal battle is occurring across the street before thé Honorable O. Peter Sherwood in the Commercial Division of the New York State Supreme Court. There, Schroeder, Skoop, and Ren-dezvoo LLC (“Rendezvoo”) have sued Cohen, Pinterest, Inc., and Cohen’s not-for-profit corporation, New York Angels, Inc., alleging, among other things, that they stole intellectual property and misappro[515]*515priated trade secrets belonging to Schroeder, Rendezvoo, and Skoop in creating the popular social media platform known as “Pinterest.” Schroeder v. Pinterest, Inc., No. 652183/13, 2013 WL 3111177 (N.Y. Sup. Ct. June 20, 2013) (“Pinterest Litigation”).

In this ancillary case, Cohen has moved for summary judgment to dismiss Cohen’s claim for veil piercing pursuant to Federal Rule of Civil Procedure 56. (Doc. No. 84.) For the reasons set forth below, Schroeder’s motion is granted.

I. Background 1

The parties first met in January 2007, when Schroeder and his fellow Columbia Law School classmates Brandon Stroy and William Bocra made a presentation to Cohen—an investor who has provided capital to over twenty start-up companies—regarding Rendezvoo, a social media platform that they were developing. (Def. 56.1 Stmt. ¶ 20; PI. Opp’n'56.1 Stmt. ¶59; see also Doc. No. 86-2 at 163:9-11.) Although Cohen declined to invest in Rendezvoo, he offered to help Schroeder, Bocra, and Stroy “refine their investment pitch,” and ultimately agreed to support development of a different site, Skoopwire.com. (PI. Opp’n 56.1 Stmt. ¶¶ 59-60.) On June 29, 2007, the quartet incorporated Skoop as a Delaware corporation, with Cohen, Schroeder, Bocra, and Stroy serving as Skoop’s sole directors. (Def. 56.1 Stmt. ¶¶2-4.) While Cohen served as Skoop’s Chief Executive Officer "and Chairman of the. Board, Schroeder served as President and Chief Technology Officer and Bocra as Chief Operating Officer. (Id. ¶¶ 5-8.) Skoop also secured corporate counsel in Delaware and adopted by-laws.- (Id. ¶ 9; see also Doc. No. 86-23.) Article 7 of Skoop’s certifícate of incorporation included a guarantee, pursuant to Section 145 of the Delaware General Corporation Law, to advance the expenses, including attorney’s fees, incurred by current or former officers or directors “by reason of’ their service to Skoop and to indemnify their expenses in cases where they prevail, (Doc. No. 94-9 ¶¶2-3.) Although the four men discussed dividing ownership of Skoop, the corporation never issued stock certificates. (Doc. No. 94-1 at 223:11-15.) Furthermore, the directors never reached a formal agreement “delineating what intellectual property, if any, ... Schroeder had brought into [Skoop] ... versus what intellectual property, if any, had accrued to [Skoop] as a result of the group’s development efforts.” (PI. Opp’n 56.1 Stmt. ¶ 61 (citing Doc. No. 94-1 at 85:5-87:8,129:7-23).) ■

By late 2007, Cohen, Schroeder, Bocra, and Stroy ceased developing Skoop-wire.com. (Def. 56.1 Stmt. ¶¶ 10-11;’ Doc. No. 94-1 at 107:10-19.) Although the four men attempted to work out an agreement to liquidate the corporation in March 2008, they never reached consensus and never consummated a separation agreement delineating their respective ownership interests in Skoop. (Def. 56.1 Stmt. ¶¶ 12-19.) Later that year, Cohen disassociated himself from Skoop, but he was never formally removed from Skoop’s board. (Def. 56.1 Stmt. ¶ 21; Doc. No. 94-4 at 38:9-11.) [516]*516Since 2008, Skoop has failed to pay any dividends, pass a single board resolution, issue annual reports, hire a single employee, raise any money, submit any credit card or loan applications, or produce a single product. (PL Opp’n 56.1 Stmt. ¶ 101 (citing Doc. 94-4 at 36:8-40:15).) Between 2007 and 2013, Skoop did not pay any taxes to the state of Delaware and became a “void” corporation. (Doc. No. 94-2 at 2.)

In the years after his departure from Skoop, Cohen invested in the company that developed the popular social media platform Pinterest. (Def. 56.1 Stmt. ¶¶ 23-24; see also Doe. No. 86-8.)2 In December 2012, Schroeder sued Cohen and Pinterest in the United States District Court for the Southern District of New York, alleging that Cohen had misappropriated intellectual property and trade secrets belonging to Schroeder and transmitted those ideas to Pinterest. (Def. 56.1 Stmt. ¶ 25.) On February 12, 2013, Cohen wrote a pre-motion letter to the Honorable P. Kevin Castel, the judge assigned to that case, in contemplation of a motion to dismiss Schroeder’s complaint on the ground that Schroeder lacked standing to sue because of his failure to include Skoop and Rendezvoo, who Cohen asserted were the real parties in interest and owners of the intellectual property at issue. (Id. ¶29.) In a letter response to Judge Castel, dated February 13, 2013, Schroeder represented that the intellectual property associated'with sko-opwire.com and rendezvoo.com belonged to him. (Doc. No. 94-12 at 2.) Nonetheless, on February 27, 2013, Schroeder filed an amended complaint joining Rendezvoo and Skoop as parties and adding claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty. (Doc. No. 86-12.) Judge Castel thereafter dismissed the amended complaint for lack of subject matter jurisdiction, since both the corporate plaintiffs and corporate defendant were domiciled in Delaware, thereby destroying diversity. (Def. 56.1 Stmt. ¶ 34.) On June 20, 2013, Schroeder, Rendezvoo, and Skoop revived their suit in New York State Supreme Court. (Doc. No. 86-21.) Although Pinterest has been dismissed from that action, see Schroeder v. Pinterest Inc., 133 A.D.3d 12, 17 N.Y.S.3d 678 (1st Dep’t 2015), the other defendants’ summary judgment motion is currently pending, see No. 652183/13 (N.Y. Sup. Ct. Oct. 7, 2016).

On October 6, 2014, Schroeder, Bocra, and Stroy entered an “agreement of interest in lawsuit” (“Agreement of Interest”), in which they “acknowledge[d] each party’s interest in any settlement proceeds resulting from” the Pinterest Litigation. (Doc. No. 86-17 at 1.) As part of the agreement, the three men stipulated that Schroeder would be entitled to 75.6% of the interest in the Pinterest Litigation; Bocra would be entitled to 16%; and Stroy would be entitled to 8.4%. (Id.) Accordingly, “[a]ny recovery in the Pinterest Litigation will ultimately inure to the benefit of Schroeder, Bocra, and Stroy.” (Def. 56.1 Stmt. ¶ 37.) The Agreement of Interest also contained a clause whereby the three men “ratified, confirmed and approved” Schroeder’s initiation of the Pinterest Liti[517]*517gation on Skoop’s behalf. (Doc. No.

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248 F. Supp. 3d 511, 2017 U.S. Dist. LEXIS 50429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-schroeder-nysd-2017.