Just before the Christmas break, the Supreme Court of the State of New York released a transcript of the latest proceedings in the latest legal case filed by Kevin Millien against George Popescu, Boston Technologies, Forexware and Emil Assentato. Judge Jeffrey Oing has ruled against the plaintiff, denying the request for preliminary injunction and leaving the case open to the public.
According to the transcript, the court based its decision on the lack of clarity about the ownership of the shares of Kevin Millien, which were the subject of a share purchase agreement made with CFH Group’s CEO Christian Frahm earlier this year.
Share Ownership Dispute
As the judge expressed doubt about Mr. Millien’s Boston Technologies stake ownership, as according to the documentation presented before the court, there are some questions to be answered.
After the share purchase agreement was signed in May, the transfer never happened due to the proceedings by Forexware to acquire Boston Technologies. While the plaintiff stated he owned the shares, Mr. Popescu presented the court a share purchase agreement signed by Mr. Millien certifying that the transfer of 63 million shares would occur.
The court additionally outlined in its decision that the deal had been closed in July and that the lack of shareholder agreement (which has been one of the key points which led to a previous court ruling that Millien must transfer one share to Popescu earlier this year) strongly supported the deal in light of the lack of evidence about other offers which were allegedly on the table.
As most of our curious readers will read in the attached full transcript of the hearing, the colloquial speech that Judge Oing sporadically reverts to, is quite striking. At one point he apologizes for interrupting Millien’s attorney by explaining, “I’m sorry to cut you off, I had too much coffee,” and reverting to Forexware and Emil Assentato’s attorney saying, “You bought a lawsuit.”
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Statements Made by Court Leading to Voluntary Withdrawal
Disputing the plaintiff’s argument that the controlling shareholder of Boston Technologies (George Popescu) has to take into account other shareholders when making decisions about the company, the court stated that it was George Popescu who controlled the company as a majority shareholder.
“Why do you think he’s not protected by the Business Judgement Rule?” the judge asked referring to the software bug which prompted the firm to look for strategic options.
When denying the cross-motion to seal the record the judge stated, “If you believe that this is a frivolous or meritless lawsuit, you will have your remedies in that regard against the plaintiff.”
Turning to the defense attorneys the judge stated, “Kevin Millien commenced this action. He’s going to have to suffer the consequences himself if he asserts counterclaims, if he asserts counterclaims, that you prevail on those, and I think that there’s a better course to go before that.”
As a result, the case filed by Kevin Millien has been voluntarily withdrawn as per the court filing which is also available below.