The decisive round in the legal brawl between the co-founders of AriZona Iced Tea will be fought at a yet-to-be-determined date, when a state court judge in New York finally puts a price tag on the company. But skirmishing in the case continues apace between estranged partners Domenick Vultaggio and John Ferolito, with Vultaggio’s lawyers at Cadwalader, Wickersham & Taft claiming the latest victory.
In a 13-page order issued on Wednesday, Judge Martin Shulman of New York state Supreme Court in Manhattan denied Ferolito’s request for an order granting him corporate decision-making rights in AriZona’s parent company, Beverages Marketing USA Inc. Shulman ruled that Ferolito isn’t entitled to a management role in the privately held company because he has moved to dissolve it in 2010.
“Any right that [Ferolito] might have had to meaningfully participate in the corporate governance of AriZona. . .ended when he petitioned for BMU’s dissolution,” Shulman wrote. The evidence, he concluded, “suggests that Ferolito’s purpose for campaigning for involvement in management decisions is simply to cause a stalemate to force Vultaggio to agree to a sale of the AriZona entities.”
Vultaggio and Ferolito built the AriZona brand into an overnight empire in the early 1990s. More money caused more problems, and in 1998 Ferolito agreed to give Vultaggio day-to-day control over BMU. Ferolito’s family still owns half the company, and he’s long tried, over Vultaggio’s objections, to sell out to an interested buyer, the likes of which are said to include Nestle SA and Coca-Cola Co.
The dispute spilled over into the courts in 2008. Vultaggio sued his partner in Nassau County, N.Y., state court, alleging that Ferolito withheld money from BMU in violation of an alleged oral agreement that the two would fund the company equally. Vultaggio sought $287 million in damages. That case climaxed in a 18-day bench trial on Long Island in March. Before the trial judge could issue his verdict, the Appellate Division, Second Department ruled on July 2 that Ferolito should have won the case on summary judgment, because the alleged oral agreement is unenforceable as a matter of law, as we reported here.
Meanwhile, Ferolito has his own breach of fiduciary duty suit accusing Vultaggio of corporate looting. His lead lawyer, Boies Schiller’s Nicholas Gravante Jr, pegs damages at $600 million. That case has been stayed pending the outcome of the valuation proceeding.
The valuation proceeding before Judge Shulman, which grew out of Ferolito’s 2010 dissolution bid, will decide the worth of the company, and by extension, its future. Ferolito and Boies Schiller estimate the total worth of the AriZona entities at between $4 and $6 billion. Vultaggio’s lead lawyer, Cadwalader partner Louis Solomon, puts the company’s worth at less than $1 billion. If Shulman sides with Ferolito, Vultaggio will have no choice put to sell the company because he doesn’t have the $2 or $3 billion he would need to buy Ferolito out, Gravante told us.
No court date has been set for the valuation proceeding, but Cadwalader’s Solomon suggested that Wednesday’s ruling on management rights doesn’t bode well for Ferolito. “At every turn the New York courts have turned back Boies Schiller’s overaggressive tactics,” Solomon said in a statement.
Back in 2010 Judge Shulman wrote that Ferolito’s attempt to sell a portion of AriZona to a vulture fund without Vultaggio’s consent “borders on unconscionable.” And on July 24 the Appellate Division, Second Department ruled that Vultaggio and BMU acted properly when they elected to buy Ferolito’s share, as the New York Law Journal reported here. That ruling also rejected a bid by Boies Schiller to disqualify Cadwalader on the grounds that the firm can’t properly represent both Vultaggio and BMU. “The courts of New York have now three times had to draw reasonable lines where Ferolito and his counsel at Boies Schiller willfully, over aggressively ignored them,” Solomon said.
Boies Schiller’s Gravante doesn’t quite see it that way. “[Solomon] is trying desperately to spin a disastrous couple of months,” he told us. In fact, he said, it’s Vultaggio’s lawyers that are “on the ropes.”
The ruling from Wednesday is of minor importance, Gravante said. And the appeals court ruling last month was actually a net win for Ferolito, he said, because the court reinstated a state law claim he brought for dissolution of the company. “It’s not essential to us that we manage the company, or that Cadwalader gets disqualified. These are procedural points,” Gravante said. “The key is that all of our claims are still intact.”
Gravante said his side has Vultaggio “dead on corporate looting” in the stayed breach of fiduciary duty case, and he promised that he was looking forward to the valuation proceeding. Given the drama of the case so far, so are we.