In re: TELTRONICS, INC., Debtor. KEVIN T. O’HALLORAN, as Trustee of the Liquidating Trust of Teltronics, Inc., Plaintiff - Appellant - Cross Appellee, versus HARRIS CORPORATION, RPX CORPORATION, Defendants - Appellees - Cross-Appellants.
No. 16-16140
United States Court of Appeals, Eleventh Circuit
October 2, 2018
[PUBLISH] D.C. Docket No. 8:15-cv-02788-CEH, Bkcy No. 8:11-bkc-12150-KRM. Appeals from the United States District Court for the Middle District of Florida.
Before TJOFLAT and JULIE CARNES, Circuit Judges, and KAPLAN,* District Judge.
This is an appeal from a judgment that affirmed an order of the Bankruptcy Court dismissing a fraudulent conveyance claim by the trustee of the liquidating trust of Teltronics, Inc. (“Teltronics”) against Harris Corporation (“Harris”) and RPX Corporation (“RPX”). The trustee claims principally that the bankruptcy judge erred in (a) concluding that the trustee had not sustained his burden of proof on the issue of whether Teltronics received reasonably equivalent value in exchange for the transfer and (b) receiving certain expert testimony offered by defendants, ostensibly on the issue of whether Teltronics was insolvent at the time the transfer was made. We affirm on the basis that (1) the Bankruptcy Court made no material error in ruling on the admissibility of evidence and (2) there was no error in the conclusion that the trustee failed to prove that Teltronics was insolvent at the time of the transfer. We therefore do not reach the lower courts’ decisions as to reasonably equivalent value.
I. FACTS
Teltronics was in the telecommunications business until its assets were sold in bankruptcy. Harris is an international communications technology company that provides communications products, systems and services. RPX is a defensive patent aggregator the business of which is acquiring patents to protect operating companies from frivolous enforcement litigation.
In 2000, Teltronics purchased a portfolio of patents from Harris in exchange for a promissory note to Harris in the amount of approximately $6.8 million. The obligations were restructured in 2002, with the
Teltronics defaulted on the promissory note in 2004. In an effort to reduce its debt, it entered into a patent transfer agreement (the “Transfer Agreement”) pursuant to which it transferred the patent portfolio back to Harris in exchange for (1) a credit of approximately $1.275 million on the amount that Teltronics owed Harris, and (2) a non-exclusive license to use the patent portfolio to make and sell digital telephone switch products. Under the Transfer Agreement, Teltronics retained certain other rights as to the patents, including a limit until July 31, 2010 on Harris’ ability to transfer the patents (the “Blocking Right”) and a right of first refusal that gave Teltronics an ability to reacquire the patent portfolio in the event that Harris intended to sell it after July 31, 2010 (the “Teltronics ROFR”).
In 2008, Harris began discussions with RPX about selling the patent portfolio. On December 19, 2008, the companies agreed in principle to a price of $12 million.
While reviewing documents to be sent to RPX for purposes of its due diligence, Harris realized that it needed to address Teltronics’ Blocking Right, which remained in effect until July 31, 2010, in order to close the sale to RPX. On January 7, 2009, Harris contacted Teltronics with a request that Teltronics modify its rights. Harris did not then disclose that it had any specific plans to sell the patents.
After some back and forth, Harris and Teltronics executed an amendment to the Transfer Agreement (the “Amendment”) on January 21, 2009. Pursuant to the Amendment, Harris, in exchange for $5,000, acquired the right to transfer the patents until April 16, 2009 unencumbered, except to a Teltronics competitor. The Amendment provided also that the Teltronics ROFR would become effective on April 16, 2009, rather than on July 10, 2010. Five days later, on January 26, 2009, Harris transferred the patents to RPX (the “Assignment”).
Teltronics filed a Chapter 11 petition on June 27, 2011 in the United States Bankruptcy Court for the Middle District of Florida. As part of Teltronics’ confirmed reorganization plan, a liquidating trust was established for the benefit of certain Teltronics creditors and Kevin O’Halloran was appointed trustee.
II. PROCEEDINGS BELOW
The trustee filed this adversary proceeding against Harris and RPX on June 25, 2013. He claimed that the transfer of the Blocking Right and the Teltronics ROFR were constructively fraudulent and sought to (1) avoid both the modification of the Blocking Right and the Teltronics ROFR and the transfer of the patents pursuant to the Assignment, and (2) recover, pursuant to Sections 544 and 550 of the Bankruptcy Code and Florida Statutes 726.105(1)(b) and 726.106(1), the value of those transfers.
A. Competing Experts at Trial in Bankruptcy Court
The adversary proceeding was tried before Bankruptcy Judge Michael Williamson. In order to prevail on his claims that the Blocking Right and Teltronics ROFR had been subjects of constructively fraudulent transfers, the trustee had to establish that the modifications of the rights constituted transfers by Teltronics. Assuming that they were indeed transfers, he had to prove two additional elements in order to prevail. First, he had to establish that Teltronics received less than reasonably equivalent value in the transfers. Second, he had to establish that Teltronics was insolvent at the time of the transfers.
At trial, the parties called competing experts as to Teltronics’ solvency at the
In order best to present the questions raised on appeal, it is useful first to describe the expert testimony on both sides. To that end, we summarize the competing expert testimony and then, against that background, move on to the trustee’s motions to strike.
1. Mr. Mukamal’s Testimony
Barry Mukamal, who testified for the trustee, had undertaken a solvency analysis as to Teltronics. He opined that the company was insolvent – in other words, that the adjusted value of the company’s liabilities exceeded the adjusted value of its assets – as of December 31, 2008, in his view by approximately $5.6 million.
2. Mr. Oscher’s Testimony
The competing expert, Mr. Oscher opined that (1) Mr. Mukamal’s solvency opinion was flawed because it improperly failed to account separately for the value of three longstanding maintenance contracts to which Teltronics was a party, (2) the value of the assets on Teltronics’ balance sheet should have been increased by the aggregate value of those three contracts, and (3) Teltronics was solvent at the time of the transfer. Mr. Oscher did not give an opinion as to the extent by which Teltronics’ assets exceeded its liabilities. But his opinion as to solvency necessarily implied that the value of the three contracts, in Mr. Oscher’s view, was more than $5.6 million, even if only slightly.1
In considering Mr. Oscher’s testimony, it is critical to understand that the burden of proof was on the trustee to show that Teltronics was insolvent at the time of the transfer. See Kardash v. Comm’r of IRS, 866 F.3d 1249, 1256 (11th Cir. 2017) (“In order to establish the insolvency element of constructive fraud under [Florida fraudulent conveyance law], a claimant must show either that the debtor was insolvent at the time of the transfer or became insolvent as the result of the transfer.”). Perhaps in consequence of the fact that the burden was on the trustee, Mr. Oscher did not offer any opinion as to the specific value of the three maintenance contracts aside from the necessary implication that they were worth at least $5.6 million. At one point, however, he did illustrate the impact that increasing the value of Teltronics’ assets by the value of the contracts could have had on Teltronics’ balance sheet. In doing so, he testified that if the fair market value of the contracts had been $8.5 million, a figure that he took from a valuation conducted by a third-party that Mr. Oscher used for “demonstrative purposes,” the value of Teltronics’ assets would have been sufficient to render the company solvent on the date that the Amendment was executed.
3. Mr. Mukamal’s Rebuttal Testimony
In rebuttal, Mr. Mukamal did not dispute that the contracts, if accounted for separately, might be worth at least $5.6
B. Daubert Motions
In sum, then, Mr. Oscher’s testimony set forth the following:
- His opinion that the value of Teltronics’ assets on its balance sheet should have been increased by the value of the three maintenance contracts,
- His opinion that Teltronics was solvent at the time of the transfers, which necessarily implied that the value of the contracts, in his view, was at least somewhat greater than $5.6 million, and
- No opinion as to the precise value of the three contracts; although to illustrate his point, he testified that if the contracts had been worth $8.5 million, a borrowed figure that he used for “demonstrative purposes,” then Teltronics would have been comfortably solvent at the time of the transfers.
At the close of Mr. Oscher’s direct examination, the trustee moved, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to strike Mr. Oscher’s opinion that Teltronics had been solvent at the time of the transfer. The motion was brief and specific:
“[W]ith respect to the solvency opinion that Mr. Oscher is rendering, he did not perform any valuation analysis of his own. What he said is, ‘I looked at three other valuations and came to a conclusion.’ . . . . . . [H]e has done nothing in the way of his own analysis to present an expert opinion. He has merely adopted the analyses and valuations that have been prepared by others.” (Emphasis added).2
The trustee briefly renewed his Daubert motion at the close of Mr. Oscher’s testimony, saying, “[N]ot only did [Mr. Oscher] rely upon the analysis of others, he doesn’t know anything about the reliability of those underlying analyses.” Indeed, Mr. Oscher acknowledged during cross-examination that he had not conducted an independent analysis of the validity of the assumptions and projections underlying the reports that he reviewed in preparing his expert report. Nor had Mr. Oscher independently analyzed the discount rate and range of values incorporated into the Empire valuation of the three maintenance contracts.
The thrust of both motions thus was essentially the same. The trustee challenged the admissibility of Mr. Oscher’s opinion that Teltronics had been solvent at the time of the transfers on the ground that Mr. Oscher did no work to back that opinion up nor verified the reliability of the materials to which he referred by way of
The Bankruptcy Court denied the motions from the bench. Judge Williamson concluded that these issues did not reach the threshold of excluding the testimony, but went to the weight that it should be given in considering the evidence. Although the Bankruptcy Court ruled without prejudice to the trustee’s renewing his Daubert motion after trial, the trustee did not renew the motion to strike Mr. Oscher’s testimony.
C. Bankruptcy Court’s Opinion
In a written opinion following trial, the Bankruptcy Court concluded that Teltronics in fact had transferred the Blocking Right under the Amendment, but nonetheless entered judgment in favor of Harris and RPX because the trustee had failed to prove by a preponderance of the evidence that Teltronics was insolvent at the time of the transfer. O’Halloran v. Harris Corp. (In re Teltronics, Inc.), 540 B.R. 481, 484, 487-90 (Bankr. M.D. Fla. 2015).
The court began by finding that Mr. Oscher was more credible than Mr. Mukamal on the narrow issue of whether the maintenance contracts ought to have been valued separately and their value listed as assets on the balance sheet. Id. at 489. In other words, the court credited Mr. Oscher’s opinion, the admissibility of which the trustee had not challenged, that the value of Teltronics’ assets should have been increased by the value of the three contracts.
Having made this credibility judgment, the court proceeded from the proposition that the burden of proof was on the trustee to “prove the value of the maintenance contracts, when added to the other assets, [did] not exceed Teltronics’ liabilities.” Id. at 490. But the trustee had “offered no evidence of the value of the maintenance contracts.” Id. Consequently, the court concluded, the trustee had failed to establish that Teltronics was insolvent at the time that it transferred the Blocking Right. Id.
Crucially, although the Bankruptcy Court, over the trustee’s challenge, had admitted into evidence Mr. Oscher’s opinion that Teltronics had been solvent at the time of the transfer, it neither credited nor relied on that opinion in entering judgment for defendants. Nor did the court accept or reject the $8.5 million figure that Mr. Oscher had used for “demonstrative purposes.” Indeed, the court made no findings at all as to the value of the three maintenance contracts.
The Bankruptcy Court concluded also that the trustee had failed to prove by a preponderance of the evidence that Teltronics had received less than reasonably equivalent value in the transfer. Id. at 485-87.
On these two independent, alternative bases, the Bankruptcy Court held that the transfer was not constructively fraudulent and could not be avoided. The district court affirmed the Bankruptcy Court’s ruling in full. O’Halloran v. Harris Corp., No. 8:15-cv-2788-T-36, 2016 WL 4467254, at *3-5 (M.D. Fla. Aug. 24, 2016) (Honeywell, J.).
III. DISCUSSION
The trustee here argues that the Bankruptcy Court erred in (1) admitting any of the testimony of Mr. Oscher, and (2) concluding that the trustee failed to establish that Teltronics (A) was insolvent at the time of the transfer, and (B) received less than reasonably equivalent value. The trustee argues also that the district court erred in affirming.
A. Legal Framework of Fraudulent Transfers
The trustee alleges constructive fraudulent transfer under
Under
Similarly, under
B. Daubert Motions
We begin with a discussion of the trustee’s motions to strike under Daubert.
1. Deferential review of evidentiary decisions
A trial court’s decisions regarding the admissibility and reliability of expert testimony are reviewed for abuse of discretion. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-43 (1997)).3 This Court will “not reverse an evidentiary decision of a district court ‘unless the ruling is manifestly erroneous.’” Id. (quoting Joiner,
522 U.S. at 142). This is so because, by virtue of the trial court’s role in presiding over trial proceedings, it is in the best position to
2. The trial court’s gatekeeping function
A trial court is obliged to perform a gatekeeping function in considering the admissibility of technical expert evidence. Frazier, 387 F.3d at 1260 (citing Kumho Tire, 526 U.S. at 147). This duty “inherently require[s] the trial court to conduct an exacting analysis of the foundations of expert opinions to ensure they meet the standards for admissibility under Rule 702.” Id. (alteration in original) (internal quotation marks and citations omitted).4
In the context of a Daubert ruling, the district court has considerable flexibility. As we have stated before:
“[I]t is difficult to persuade a court of appeals to reverse a district court’s judgment on Daubert grounds. The theme that shapes appellate review in this area is the limited nature of it. . . .
. . . .
What is true about the review of evidentiary issues in general applies with equal or even greater force to Daubert issues in particular, an area where the abuse of discretion standard thrives. Immersed in the case as it unfolds, a district court is more familiar with the procedural and factual details and is in a better position to decide Daubert issues. The rules relating to Daubert issues are not precisely calibrated and must be applied in case-specific evidentiary circumstances that often defy generalization. And we don’t want to denigrate the importance of the trial and encourage appeals of rulings relating to the testimony of expert witnesses.”
Brown, 415 F.3d at 1264-66 (citations omitted); see also McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) (“[O]ur review of
“[I]n determining the admissibility of expert testimony under Rule 702, we engage in a rigorous three-part inquiry. Trial courts must consider whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.”
Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). The proponent of the expert testimony bears the burden of establishing that each of these criteria is satisfied. Knight through Kerr v. Miami-Dade Cnty., 856 F.3d 795, 808 (11th Cir. 2017) (citing Frazier, 387 F.3d at 1260).
evidentiary rulings by trial courts on the admission of expert testimony is very limited.” (internal quotation marks and citation omitted)).
Our review is “even more relaxed in a bench trial situation, where the judge
3. The Daubert Rulings
a. Including contracts on Teltronics’ balance sheet
The trustee contends that Mr. Oscher’s testimony should have been excluded in its entirety. He fails to note, however, that he did not object below to Mr. Oscher’s opinion that the contracts should have been included in the assets on Teltronics’ balance sheet, although he did offer a competing opinion. The sole question of admissibility he raised was to Mr. Oscher’s opinion that Teltronics had been solvent at the time of the transfer.
Even if the question were properly before us, the trustee’s argument, insofar as it is directed to Mr. Oscher’s opinion that the maintenance contracts should have been included on the balance sheet, would fail. The Bankruptcy Court did not abuse its discretion in admitting and then crediting this opinion.5
Mr. Mukamal, the trustee’s expert, acknowledged that the practice of including intangible assets as separate items on a company’s balance sheet “may not be flawed,” but rather that it was a matter of the facts and circumstances of the case at hand. Mr. Mukamal argued that the contracts in this case were so embedded in the overall enterprise, indeed they were “necessary for the overall operation and value stream in a . . . discounted cash flow model, with respect to the entire organization,” that they could not be valued distinctly from the enterprise. Mr. Oscher, on the other hand, maintained that the contracts were “clearly seen as separate entities or separate assets of Teltronics,” as evidenced by the lending that was being done against the contracts.
b. Solvency opinion
The trustee did preserve his objection to the Bankruptcy Court’s receipt of Mr. Oscher’s opinion that Teltronics was solvent. We decline to reach this objection, however, because it is immaterial on appeal.
Mr. Oscher’s opinion that Teltronics was solvent at the time of the transfer necessarily implied his opinion that the value of the contracts was at least $5.6 million. It is true also that Mr. Oscher provided no basis for that view. It may well be that there was a valid argument under Daubert to exclude this opinion, but the judge neither relied upon nor credited this opinion in his ultimate disposition of the case. Accordingly, the issue is academic.
c. Illustration representing value of the contracts as $8.5 million
Finally, the trustee’s argument that the Bankruptcy Court erred in admitting Mr. Oscher’s use of the borrowed $8.5 million figure for “demonstrative purposes” is unhelpful and immaterial to his appeal. As the trustee acknowledges in his brief, Mr. Oscher in fact did not opine that the value of the contracts was $8.5 million – that figure was used to demonstrate the impact that increasing the value of Teltronics’ assets by the value of the contracts could have had on Teltronics’ balance sheet.
The trustee nonetheless criticizes Mr. Oscher’s “methodology” of taking the midpoint of the value range set forth in the Empire valuation as not generally accepted in the field of accounting. He points also to the fact that Mr. Oscher “did no analysis of the state of Teltronics’ remaining balance sheet, or the cost to liquidate Teltronics’ remaining assets, if the contracts were sold” and to Mr. Oscher’s assignment of a value to the contracts without considering the costs involved with administering the contracts. These contentions might present serious concerns had Mr. Oscher set forth an opinion that the contracts, in his view, were worth $8.5 million. But as this testimony was merely used to demonstrate a point, the trustee’s criticisms miss the mark.
Moreover, the Bankruptcy Court plainly did not rely on this illustration and in fact made no findings at all as to the value of the three contracts. The only portion of Mr. Oscher’s testimony that was credited by the Bankruptcy Court was his opinion that some value for the three contracts should have been reflected separately on the balance sheet for purposes of the solvency analysis. The admissibility of the testimony related to Mr. Oscher’s use of the $8.5 figure was immaterial.6
C. Insolvency
We now turn to the Bankruptcy Court’s conclusion that the trustee failed
The trustee had the burden of proving by a preponderance of the evidence that Teltronics was insolvent at the time of the transfer. Kardash, 866 F.3d at 1256 (“In order to establish the insolvency element of constructive fraud under [Florida fraudulent conveyance law], a claimant must show either that the debtor was insolvent at the time of the transfer or became insolvent as the result of the transfer.”). Having accepted that the value of the assets listed on the balance sheet as presented by Mr. Mukamal was incomplete without the inclusion of the value of the three maintenance contracts, the burden was on the trustee to prove that the value of those contracts was so small as to leave Mr. Mukamal’s opinion as to insolvency unaffected. But he offered no such evidence. As the Bankruptcy Court properly found, he therefore failed to establish an essential element of his claim.
IV. CONCLUSION
The judgment appealed from is AFFIRMED. Appellees’ cross-appeal is DISMISSED as moot.
23
Notes
“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”