Judge denies summary judgment for law firm

Jennifer Nelson
February 15, 2010
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Note: This is a corrected version of the original Feb. 15, 2010, story. 

A federal judge has denied summary judgment for an Indianapolis law firm accused of selling stock held in escrow while the firm acted as a receiver of a company.

U.S. District Judge Larry J. McKinney denied Riley Bennett Egloff's motion for summary judgment Feb. 12 in Neil Lucas, individually and on behalf of Phonebillit, Inc., as shareholder v. Riley Bennett Egloff, No. 1:07-CV-534. Neil Lucas, a shareholder of Phonebillit, filed his suit in 2007 accusing the firm of having a conflict of interest in its role as custodian and then receiver of Phonebillit Inc.

There was a dispute among Phonebillit's owners as to how much stock each owned. Lucas' suit accused the firm of unreasonably liquidating Phonebillit's assets, making unauthorized payments to another owner, Steven Sann, and selling Lucas' stock in Brightpoint that was held in escrow at Sann's suggestion. Lucas claimed the sale caused him to lose more than $75,000 because the proceeds were placed in a low-interest savings account.

A settlement was reached in September 2008 on all of the issues except the stock sale, which the court found to be personal to Lucas. RBE moved for summary judgment on that issue, arguing that Lucas asserted a claim for legal malpractice which entitled the firm to an affirmative defense based on the business judgment rule.

Lucas argued that RBE's liability stemmed from its duty as an escrow agent. Judge McKinney wrote the parties' arguments based on those theories are misplaced.

"This case presents a claim against a receiver for the alleged breach of the duties it owed to one of the receivership's creditors or one with whom the receiver was in privity," wrote the judge.

Lucas didn't assert a claim for legal malpractice, nor did he present a claim against an escrow agent. Also, the business judgment rule has no place in the litigation, the judge continued, because RBE was an arm of the court as the receiver. Judge McKinney denied Lucas' motion to strike the firm's affirmative defenses and RBE's motion for summary judgment on those defenses because there are triable issues of fact. He also denied the firm's motion for judgment as a matter of law or involuntary dismissal.

At the Feb. 26 pre-trial conference, the court will address whether RBE's motion in limine and request for a protective order is moot; and RBE's motion to exclude expert testimony, including specific testimony from Lucas. A jury trial has been set for March 8.


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