Zayed v. Buysse et al., 11-cv-1042 (D. Minn.)

A summary of the Court’s Order on all parties’ motions for Summary Judgment and to exclude experts


On September 27, 2012, the Court issued a Memorandum Opinion and Order on the parties’ pending motions for Summary Judgment and the parties’ motions to exclude each other’s experts. That Opinion was initially sealed, but on October 10, 2012, Judge Nelson unsealed the Order.

The Court granted, in part, the Receiver's motion for Summary Judgment, ruling that the Ponzi scheme presumption applied and that the following of the Berg Investors’ affirmative defenses failed:  (1) failure to state a claim; (2) estoppel, waiver, and laches; (3) failure to mitigate / election of remedies; (4) accord and satisfaction; (5) doctrine of payment; (6) res judicata, collateral estoppel, merger, and bar; (7) unclean hands, in pari delicto, preceding breach of contract; and (8) damages by third parties. The Court also ruled that Dot Anderson’s defenses of recoupment and setoff similarly failed.

The Court denied the Receiver's motion, in part, ruling that genuine issues of fact remain as to the good faith of the Berg Investors, which precluded Summary Judgment.  Similarly, the Court concluded that genuine issues of fact remain as to the Receiver’s claim for unjust enrichment.

The Court granted both the Receiver's and the Berg Investors’ motions to exclude the other side’s expert.  The Court excluded the Berg Investor’s expert, Steven Adams, finding that his opinion was not helpful to the trier of fact, could usurp the jury’s role and could be, in fact, prejudicial.  The Court also excluded the rebuttal testimony of the Receiver’s expert, Eric Golberg, finding his testimony was not necessary because Mr. Adams’s testimony had been excluded. 

The Court denied, in total, the Berg's Investors' and Dot Anderson’s Summary Judgment motions.