Salus Capital Partners, LLC v. Moser

289 F. Supp. 3d 468
CourtDistrict Court, S.D. Illinois
DecidedJanuary 16, 2018
Docket17 Civ. 5536 (NRB)
StatusPublished
Cited by12 cases

This text of 289 F. Supp. 3d 468 (Salus Capital Partners, LLC v. Moser) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salus Capital Partners, LLC v. Moser, 289 F. Supp. 3d 468 (S.D. Ill. 2018).

Opinion

NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE

*472Petitioner Salus Capital Partners, LLC ("Salus" or "petitioner") initiated this action in New York State Supreme Court by filing a petition to confirm an April 2017 arbitration award granted in its favor. Respondent Andrew Moser ("Moser" or "respondent") timely removed the action to this Court and thereafter filed a motion to partially vacate the award. For the reasons stated herein, Salus's petition is granted and Moser's motion is denied.

Background

I. Underlying Facts

In November 2011, Moser was hired as President and CEO of Salus, a financial and asset management company. Partial Final Award, Petition Ex. C ("Partial Award"), at 5. The relationship between the parties was governed by two agreements: an employment agreement, governed by New York law, first executed in November 2011 and later amended as of August 26, 2014 (the "Employment Agreement"), and a Limited Liability Agreement, governed by Delaware law, effective as of December 1, 2011 ("LLC Agreement"). Partial Award at 5. Both the Employment and LLC Agreements contain arbitration clauses. Pursuant to Section 17(a) of the Employment Agreement, "Employee and Company agree to arbitrate any controversy or claim arising out of this Agreement or otherwise relating to Employee's employment by Company or the cessation of such employment for any reason ...." Petition Ex. B. § 17(a). Under Section 10.2(a) of the LLC Agreement, "Each of the Members agrees to arbitrate any controversy or claim arising out of this Agreement or otherwise relating to the Members' Interests." Petition Ex. C § 10.2(a).

In April 2015, Salus terminated Moser, without cause, for "poor performance, lack of trustworthiness, lack of transparency with respect to the value of the loan portfolio, and disparagement of" Salus's corporate, and publically traded parent, HRG Group, Inc. ("HRG"). Partial Award at 5, 9. Thereafter, Salus conducted a "routine due diligence review" of Moser's emails, which uncovered evidence that Moser had "affirmatively sought to conceal unauthorized personal charges on the corporate credit card." Id. at 9. Because Moser had signed the auditor's letter for Salus's consolidated financial statements, attesting that he had no knowledge of "fraud or suspected fraud," Salus retained outside counsel, Skadden Arps ("Skadden"), to conduct an internal investigation and "to advise it on the potential regulatory implications and its potential affirmative obligations." Id. at 9-10.

In June 2015, Skadden, relying in part on the forensic accounting efforts of AlixPartners, concluded that there was "substantial evidence that Mr. Moser misappropriated company funds for personal use." Id. at 11. Skadden determined, however, that "None of the misconduct affected Salus clients [or] materially harmed HRG investors." Id. at 12 (alterations in original).

Moser misappropriated company funds in three ways. First, Moser retained a vendor, Audio Visual Intelligence ("AVI"), which was concurrently providing services to Salus, to install almost $100,000 worth of audio-visual equipment in his homes. Id. at 6. Moser charged the equipment to his corporate credit card and requested the vendor's owner, James Shapiro ("Shapiro"), to create and submit falsified invoices *473to substantiate the charges. Id. Specifically, Moser asked that Salus's office address be substituted on the invoices for the addresses of his homes where the work was actually performed, and "instructed Shapiro to make the descriptions of the work performed 'plain' and that 'work invoices' be produced ... to falsify the descriptions of the work performed ... to make them appear as if the work had been performed on Salus's premises." Id. at 6-7.

Second, Moser incurred more than $90,000 in "questionable charges" beyond the AVI charges on his corporate credit card, including for purchases of patio furniture; watches; items on Amazon.com; family travel expenses; purchases at gas stations, coffee shops, grocery and liquor stores; and for miscellaneous items, such as Boston Bruins gear. Id. at 8, 16. Moser also used Salus's corporate jet account for multiple trips for himself and his family, costing Salus over $35,000. Id. at 17.

Third, in 2013, while Salus was serving as the collateral manager for collateralized loan obligations for Radio Shack, Moser purchased a $25,000 zero-coupon subordinated note, through which he would receive $25,000 on the note's 2021 maturity date "and periodic interest payments along the way." Id. at 8. By late 2014, however, the value of the note was expected to diminish "significantly" with Radio Shack's impending bankruptcy "of which Moser was fully aware." Id. Moser, therefore, caused Salus to purchase his interest at a full face value of $25,000, "knowing that the shortfall in value would ultimately likely be borne by Salus." Id.

By a June 2, 2015 letter from counsel, Salus notified Moser's counsel that a number of "troubling issues" had come to light, including "strong evidence showing that [Moser] had misappropriated corporate funds and resources for personal use." Id. at 12 (alterations in original). Salus sought to meet with Moser "so he c[ould] address these issues directly." Id. Instead, Moser "curiously" wrote a letter to his former assistant "explaining that he charged personal expenses to the corporate credit card so that Salus could benefit from the 'points' earned on the credit card but assured her that he ... would reimburse Salus." Id.

After multiple failed efforts to meet with Moser, Salus re-characterized Moser's termination as one for cause in July 2015. Id. Soon thereafter, Moser's counsel acknowledged that Moser would "reimburse Salus for all personal expenses charged on a corporate credit card," but could not confirm the amount owed as he "did not have access to the relevant documents." Id. at 13. Then, in August 2015, Moser and his counsel met with Salus to review Moser's corporate credit card statements. Id. Moser "personally noted" which charges were personal in nature, valued at approximately $140,000, including the AVI charges, the purchase of the patio furniture, meals, and personal vacations. Id."He also asked for additional time to research and confirm some additional charges." Id."Neither Moser nor his counsel ever got back to [Salus] with respect to these open items, nor was payment ever made or the admitted indebtedness put in escrow." Id.

II. The Arbitration Proceeding

In September 2015, Salus initiated an arbitration proceeding against Moser pursuant to the Employment and LLC Agreements. Id. at 1. Salus asserted various claims, including breach of contract, breach of fiduciary duty and the duty of loyalty, fraud, conversion, and violation of New York's faithless servant doctrine. Id.

In a thorough, twenty-seven page decision, the arbitrator concluded that Moser had "charged substantial personal expenses to his Salus credit card," and had "compounded his error by not repaying this indebtedness, despite repeatedly *474promising to do so." Id. at 14.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
289 F. Supp. 3d 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salus-capital-partners-llc-v-moser-ilsd-2018.