Late last week, the commercial finance arm of tech conglomerate Hitachi filed a notice of appeal concerning the adverse rulings and orders decreed by a District of New Jersey court in a case lodged by CoFund II LLC for breach of contract, including an approximately $1.55 million judgment. Hitachi Capital America Corp. takes issue with the court’s February trial opinion and May 4 supplemental order finding in favor of Cofund.
The 2016 complaint explains that Hitachi and Cofund were both creditors to a non-party company, Forest Capital LLC. As co-creditors, they entered into an intercreditor agreement. Cofund alleged that Hitachi breached several of its obligations under the agreement, including its receipt and retention of funds belonging to Cofund.
The court held a virtual bench trial in November 2020. Thereafter, the parties submitted post-trial briefs with proposed findings of fact and conclusions of law.
Based on the evidence presented and submissions made, the court ruled that the parties’ agreement was enforceable and that Hitachi breached the intercreditor agreement in several respects. For one, the court held that Hitachi received priority collateral that Cofund was entitled to, and did not cede the funds in violation of their co-creditor agreement. There was no excuse for Hitachi’s breach, the court determined in declining its argument that performance was impossible.
The court then asked the parties to brief the issue of damages. It ultimately sided with Cofund in finding that Hitachi owed the plaintiff roughly $1.55 million plus interest. Hitachi is represented by Anderson Kill P.C. and Cofund by Lasser Hochman LLC in the matter.
