Troy R. Covington

 

Troy R. Covington

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In an article published on July 11, 2018, Bloom Parham Counsel Troy Covington provides insight into the impact a conservative majority on the Supreme Court could have on cases regarding reproductive rights. Covington spoke to Business Insider about Supreme Court nominee Brett Kavanaugh’s record on abortion. “Judge Kavanaugh has spoken before about the value of precedent, so it’s impossible to say for sure, but I think the most likely outcome, if he is confirmed, is that we would not see a stark reversal.” Covington says. You may read the full article here.


In a recent article published in Construction Executive, Bloom Parham Managing Partner Steve Parham and Counsel Troy Covington provide insight regarding how to handle bankruptcy for an owner of a real estate company or a contractor. Parham and Covington write that the Bankruptcy Code determines how a project will move forward following a bankruptcy. The code allows a bankruptcy trustee (in a Chapter 7 dissolution case) or the debtor-in-possession (in a Chapter 11 reorganization case) either to assume or to reject an executory contract. Then, a debtor-in-possession has until the time of the confirmation of its plan of reorganization to decide if it will assume or reject the contract. In many states the law provides that if the debtor files bankruptcy, the contractor does not have to commence an action against the debtor and instead may bring an action directly against the property owner. For the full article, you may click here.


On January 8, 2018, the United States Supreme Court denied Bamberger-Rosenheim, Ltd.’s (also known as “Profimex”) petition for a writ of certiorari.  The Supreme Court declined to review the decision of the United States Court of Appeals for the Eleventh Circuit affirming the confirmation of an arbitration award in favor of OA Development, Inc. (“OAD”).  Profimex asked the Supreme Court to hear the case to consider the Eleventh Circuit’s holding that an arbitrator’s determination of arbitral venue under the parties’ arbitration agreement is entitled to deference.

Profimex had argued that the international character of the arbitration required the court to apply a more rigorous standard of review to the arbitrator’s construction of a venue provision because of alleged substantive consequences that attach to the venue of the arbitration in the international context.  The Eleventh Circuit had relied on well-established law that arbitrators are presumed to decide disputes regarding arbitration procedures and agreed with four other circuit courts of appeal that disputes over the interpretation of venue selection clauses raise presumptively arbitrable procedural questions.  The Supreme Court’s decision to decline review of the case allows the Eleventh Circuit’s decision and the reasoning behind it to stand.


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.


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.


An Israeli company has asked a federal judge in Atlanta to declare that an arbitrator had no authority to levy hundreds of thousands of dollars in damages against it in response to claims of defamation made by a Norcross company.

The case stems from a sprawling dispute between Israeli-based Profimex and Norcross-based OAD Development (OAD). It started when Profimex claimed to an arbitrator in Kennesaw that OAD owed Profimex hundreds of thousands of dollars in fees from real estate deals. OAD responded with counter-claims that Profimex officials defamed OAD to investors in emails, some of which were written in Hebrew.

The arbitrator, Nisbet Kendrick III of Kennesaw’s Kendrick Conflict Resolution, in December awarded Profimex $401,675 in unpaid fees, interest and attorney fees. But Kendrick also awarded OAD $950,000 on its counterclaims, leaving OAD ahead by about $550,000.

Profimex argues that OAD’s claims should have been handled in Tel Aviv, Israel, because the arbitration clause in the companies’ contract mandated that any dispute be arbitrated in the defendant company’s chosen venue, Atlanta for claims against OAD and Tel Aviv for claims against Profimex.

Lawyers for OAD argue that Profimex’s effort to have their claims set aside turns the federal court into an appellate forum for arbitration awards losing parties don’t like. Allowing Profimex’s case to go forward, OAD’s lawyers said, threatens to undermine the very reasons that binding alternative dispute resolution exists.


Successfully obtained a $950,000 award on a defamation claim for an Atlanta-based commercial real estate developer against its Israeli-based investment company (Claimant). Claimant initially brought the arbitration claim for fees it alleged were owed to it following the sale of a real estate project for which it had secured investment funds. Claimant was also making numerous disparaging statements regarding our client to our client’s investors and to third parties. Our client filed a counterclaim for defamation. After approximately six months of discovery, which included the production of thousands of pages of documents and more than 30 depositions, and a one-week trial, the Arbitrator awarded Claimant its claimed fees based on the sale of the real estate project, but also awarded our client compensatory and punitive damages and attorneys’ fees on its defamation claim. The net result was Claimant owing our client about $450,000. Claimant has subsequently filed a petition in federal court in Atlanta to have the Arbitrator’s defamation award to our client vacated or modified.