Fed. Sec. L. Rep. P 94,092 Alberto-Culver Company, a Delaware Corporation v. Fritz Scherk

484 F.2d 611
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 18, 1973
Docket72-1158
StatusPublished
Cited by48 cases

This text of 484 F.2d 611 (Fed. Sec. L. Rep. P 94,092 Alberto-Culver Company, a Delaware Corporation v. Fritz Scherk) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fed. Sec. L. Rep. P 94,092 Alberto-Culver Company, a Delaware Corporation v. Fritz Scherk, 484 F.2d 611 (7th Cir. 1973).

Opinions

MYRON L. GORDON, District Judge.

This is an interlocutory appeal. The district court found that it had jurisdiction over both the parties and the subject matter of this lawsuit. Also, the district court refused to stay the proceedings before it while the parties arbitrated their dispute before the International Chamber of Commerce tribunal in Paris, France. The court enjoined the parties from such arbitration.

The appellee urges that the findings and order of the district court are not appealable under 28 U.S.C. § 1292(a)(1) and has moved for dismissal of the appeal. -For the reasons set forth in this opinion, we find that this court may properly entertain the appeal, and we affirm the decision of the district court.

The plaintiff-appellee, Alberto-Culver (Alberto) is a Delaware corporation with its principal offices situated in Illinois. It manufactures and distributes toiletries and hair products in national and international markets.

[613]*613The defendant-appellant, Fritz Scherk (Scherk) is a German citizen who presently resides in Switzerland. Prior to the transactions here in issue, Scherk was engaged in the manufacture and sale of cosmetic products for sale in western Europe. The principle manufacturing operations were conducted by Scherk in facilities situated within Berlin, Germany, and owned by Scherk through a sole proprietorship called Fir-ma Ludwig Scherk (FLS).

Scherk also owned interrelated business entities known as Scherk Esta-blissement Vaduz (SEV), a Lichtenstein entity which has no counterpart in the United States, and Lodeva Herstellung und Vertrieb Kosmetischer Artikel GMBH (Lodeva), a German entity which has no counterpart in the United States. SEV was operated by Scherk as a holding company licensing the sale and distribution of Scherk’s cosmetics on an international basis under a variety of trademarks. The Lodeva entity was dormant and remains so.

In June, 1967, Alberto contacted Scherk in Germany to explore the possibility that Scherk might sell his European cosmetic business. In November, 1967, Fred Maeding of Alberto visited Scherk in Germany to pursue negotiations for such acquisition. In December, 1967, Alberto’s president, Leonard H. Lavin, met with Scherk’s representative, Benjamin Navon, in Chicago, Illinois. The negotiations were terminated.

In February, 1968, Alberto contacted Scherk in Berlin and negotiations were resumed. An agreement in principle was reached at this time concerning the basic terms for Alberto’s acquisition of Scherk’s business entities, SEV, FLS, and Lodeva; the details of the agreement were hammered out in Melrose Park, Illinois, during a 3-day meeting held in late May and early June, 1968. Scherk was present in Illinois for this latter meeting. A written document was ultimately prepared and signed in Vienna, Austria, by Scherk in February, 1969.

Among other things, the agreement between Alberto and Scherk provided that SEV was to be converted to a stock corporation and that Alberto was to acquire 100% of the stock of the new corporation. Accordingly, the parties entered into an escrow agreement by which Scherk assigned all of his rights in SEV to the escrow agent who was to accomplish the conversion and hold the certificates until closing.

The agreement also provided that as to the acquisition of SEV that:

“The parties agree that if any controversy or claim shall arise out of this agreement or the breach thereof and either party shall request that the matter shall be settled by arbitration, the matter shall be settled exclusively by arbitration in accordance with the rules then obtaining of the International Chamber of Commerce, Paris, France, by a single arbitrator, if the parties shall agree upon one, or by one arbitrator appointed by each party and a third arbitrator appointed by the other arbitrators. In case of any failure of a party to make an appointment referred to above within four weeks after notice of the controversy, such appointment shall be made by said Chamber. All arbitration proceedings shall be held in Paris, France, and each party agrees to comply in all respects with any award made in any such proceeding and to the entry of a judgment in any jurisdiction upon any award rendered in such proceeding. The law of the State of Illinois, U.S.A. shall apply to and govern this agreement, its interpretation and performance.”

The agreement provided that as to the acquisition of FLS that:

“The parties agree that if any controversy or claim shall arise out of this agreement or the breach thereof, the matter shall be settled exclusively by arbitration in accordance with the rules then obtaining of the International Chamber of Commerce, Paris, France, by a single arbitrator, if the [614]*614parties shall agree upon one, or by one arbitrator appointed by each party and a third arbitrator appointed by the other arbitrators. In case of any failure of a party to make an appointment referred to above within four (4) weeks after notice of the controversy, such appointment shall be made by said Chamber. Unless otherwise agreed, all arbitration proceedings shall be held in Paris, France, and each party agrees to comply in all respects with any award made in any such proceeding and to the entry of a judgment in any jurisdiction upon any award rendered in such proceeding. The laws of the State of Illinois, U.S.A. shall apply to and govern this agreement, its interpretation and performance.”

The closing of the transaction was accomplished in Geneva, Switzerland, in June, 1969. Nearly one year later, Alberto discovered that the trademark rights purchased from Scherk were subject to substantial encumbrances. A dispute arose, and Alberto attempted to rescind the purchase agreement; it tendered the business to Scherk, who refused to accept the tender.

Scherk first took steps to institute arbitration in early 1971; however, a request for arbitration was not filed with the International Chamber of Commerce until November 9, 1971. Alberto commenced the instant action in the district court for the northern district of Illinois on June 11, 1971, alleging that it was defrauded in the acquisition of these businesses in violation of Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq.

As pertinent here, 28 U.S.C. § 1292(a) provides:

“The courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions. . . .”

The- appellee contends that the district court’s order preliminarily enjoining Scherk from proceeding with arbitration in Paris and denying a stay of its own proceedings is not an interlocutory injunction within the meaning of 28 U.S.C. § 1292(a)(1). We disagree.

The practical result of the district court’s order is to terminate Scherk’s recourse to arbitration of the dispute before the International Chamber of Commerce in Paris and as such, the order qualifies as an “injunction” within the meaning of 28 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

14 Penn Plaza LLC v. Pyett
556 U.S. 247 (Supreme Court, 2009)
Lipcon v. Underwriters at Lloyd's of London
148 F.3d 1285 (Eleventh Circuit, 1998)
Haynsworth v. the Corporation
121 F.3d 956 (Fifth Circuit, 1997)
Leslie v. Lloyds of London
Fifth Circuit, 1997
Coors Brewing Co. v. Molson Breweries
51 F.3d 1511 (Tenth Circuit, 1995)
Coors Brewing Company v. Molson Breweries
51 F.3d 1511 (Tenth Circuit, 1995)
Shearson/American Express Inc. v. McMahon
482 U.S. 220 (Supreme Court, 1987)
Preston v. Kruezer
641 F. Supp. 1163 (N.D. Illinois, 1986)
Halliburton & Associates, Inc. v. Henderson, Few & Co.
774 F.2d 441 (Eleventh Circuit, 1985)
Ruefenacht v. O'halloran
737 F.2d 320 (Third Circuit, 1984)
Timberlake v. Oppenheimer & Co.
729 F.2d 515 (Seventh Circuit, 1984)
Southland Corp. v. Keating
465 U.S. 1 (Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
484 F.2d 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fed-sec-l-rep-p-94092-alberto-culver-company-a-delaware-corporation-ca7-1973.