Simon H. Bloom

 

Simon H. Bloom

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On July 17, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed Simon Bloom and Troy Covington’s victory at the U.S. District Court where Judge Eleanor Ross confirmed the arbitration award in favor of our client OA Development, Inc. against Bamberger-Rosenheim, Ltd.  Bamberger argued that OAD’s claims should not have been arbitrated in Atlanta under the applicable venue provision found in the parties’ arbitration agreement.

The Eleventh Circuit disagreed, holding that the arbitrator’s venue determination was entitled to deference.  The court relied on well-established law that courts must defer to arbitrators’ determinations regarding arbitration procedures such as venue.  The panel’s published opinion joined four other circuit courts of appeal in concluding that disputes over the interpretation of venue selection clauses are procedural and should be left to the arbitrator to decide as long as it was clear that the arbitrator arguably interpreted the provision in good faith.  In this case, because the arbitrator plainly engaged with the language of the agreement and more than arguably interpreted the venue provision at issue, the court deferred to the arbitrator’s interpretation.  Depending on further appeals, the District Court will next address OAD’s motion for attorneys fees against Bamberger.

Simon Bloom argued the appeal before the appellate panel on May 17, 2017 and Troy Covington authored the briefing.


Simon Bloom argued before the United States Court of Appeals for the Eleventh Circuit on Tuesday, May 17 in Atlanta.  Bloom Sugarman represents OA Development, Inc. (“OAD”), the Appellee in the matter.  In April 2014, Appellant Bamberger-Rosenheim, Ltd. (also known as “Profimex”) filed an arbitration against OAD through the International Chamber of Commerce, seeking the payment of certain contractual fees.  OAD filed a counterclaim for defamation, and Profimex asked the arbitrator to dismiss the counterclaim.  The arbitrator refused to do so, and the parties proceeded to litigate their various claims through six months of discovery and pre-trial briefing. Following a week-long trial in July 2015 and post-trial briefing, the arbitrator ruled in OAD’s favor on its defamation claim.  The arbitrator awarded OAD approximately $1,000,000 in compensatory damages, punitive damages, and attorney’s fees.

The U.S. District Court for the Northern District of Georgia confirmed the arbitration award to OAD.  Profimex appealed to the Eleventh Circuit.  Profimex continues to argue that OAD’s defamation counterclaim should not have been arbitrated in the Atlanta proceeding under the applicable venue provision found in the parties’ arbitration agreement.  That issue was at the center of Tuesday’s appellate argument, with Mr. Bloom arguing that the arbitrator properly decided OAD’s counterclaim and violated neither the parties’ arbitration agreement nor any applicable federal or international arbitration law.

Click here for audio of Tuesday’s oral arguments.


Successfully obtained reversal of grant of summary judgment in favor of lender regarding interpretation of loan agreement. The lender agreed to limit its remedies upon the maturity of the loan to taking the real estate, which served as collateral, and giving the borrowers credit equal to the greater of the fair market value for the several tracts of collateral or the minimum release prices for the tracts contained in the loan agreement. The lender could then issue deficiency notes to the borrowers for any principal balance remaining after the borrowers were credited for the collateral.

The Georgia Court of Appeals agreed with Bloom Sugarman’s argument that the correct interpretation of the loan agreement requires that the separate minimum release price assigned to each tract of the collateral must be compared to the fair market value of that tract, with the borrowers receiving credit for the greater number for each tract. The Court of Appeals further agreed that the fair market value of each piece of the collateral is disputed by the parties and must be determined by a jury.


Defended appeal of trial court’s grant of summary judgment and $45,000 of attorneys’ fees to Bloom Sugarman. Trial court property granted summary judgment in favor of Bloom Sugarman’s client on claims related to the rezoning of an adjacent property. Trial court subsequently awarded attorneys’ fees and costs in favor of client. The Georgia Court of Appeals affirmed the ruling.


Successfully obtained a reversal of summary judgment in favor of opposing party. The trial court improperly granted summary judgment to opposing party in nuisance and trespass actions after concluding that there was no evidence of causation. On appeal, Bloom Sugarman argued that the trial court misapplied the law and ignored disputed evidence of causation. The Georgia Court of Appeals agreed and reversed the trial court’s ruling. The Georgia Supreme Court denied certiorari.


Successfully achieved cancellation of material supplier’s lien on the property of their client, a national homebuilder, based on anti-assignment language in contract. The homebuilder’s contract specifically prohibited a subcontractor from assigning work to a sub-subcontractor without the homebuilder’s specific written approval. Despite this provision, the homebuilder’s subcontractor hired a sub-subcontractor without the homebuilder’s approval, and the sub-subcontractor subsequently failed to pay a material’s supplier for concrete. The supplier liened the property. Relying on the contract’s anti-assignment language, the Forsyth County Superior Court invalidated the supplier’s lien because the homebuilder never approved the sub-subcontractor who contracted for the materials. The Court also sanctioned the supplier $3,300 for discovery abuses.

 


Represented a homeowner in his effort to obtain a set-back variance from the City of Atlanta for his Morningside home. The Zoning Board’s 4-0 vote in favor of the variance allows the homeowner to construct his new home on an unusually-sized corner lot, despite opposition from the neighborhood association and the Neighborhood Planning Unit.


Obtained an award of attorney’s fees and costs in the amount of $45,000 for client forced to defend suit. After prevailing on all counts at summary judgment, Bloom Sugarman moved on the client’s behalf for an award of fees and costs under Georgia’s frivolous litigation statute. Plaintiffs argued that their claims were substantially justified and supported by justiciable issues of facts. In the alternative, Plaintiffs argued that they relied upon a novel position supported by existing law. After briefing and hearings on both the merits of the motion and the reasonableness of fees, Judge Vinson agreed with Bloom Sugarman and awarded our client more than half of the attorneys’ fees incurred in the case.


Successfully obtained summary judgment in client’s favor in a suit by a national Bank seeking to collect the balance due on a defaulted commercial loan. After foreclosing on the subject collateral property, the Bank failed to confirm the foreclosure sale but still filed suit against our client, the loan’s guarantor, for the deficiency balance remaining after the sale – approximately $800,000 plus interest and attorney’s fees. The Bank argued that our client’s guaranty was sufficient under the HWA Properties line of cases  to allow the bank to sue without confirmation. Bloom Sugarman moved for summary judgment on the Complaint and argued that the guaranty in question did not rise to the level of HWA Properties and that confirmation was a condition precedent to the Bank being able to recover against our client. After reviewing the briefing and hearing oral argument, Judge McBurney sided with Bloom Sugarman and granted our summary judgment motion thereby relieving our client of any possible remaining liability in this matter.


Successfully obtained summary judgment in client’s favor in a suit by a neighboring landowner seeking to enforce a restrictive covenant. The neighbor—who had not been an original party to the restrictive covenant at issue—sought to enforce an interpretation of the covenant that would have substantially impacted the value of multiple lots in client’s residential development. The Court agreed with Bloom Sugarman’s arguments showing why the neighbor’s interpretation was incorrect as a matter of law under the recorded document, leaving only our client’s claim for attorneys’ fees pending in the case. The Georgia Court of Appeals affirmed the trial court’s order in our client’s favor.