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Bkr Global, LLC, A Florida Limited Liability Company v. Fourwinds Capital Management

November 4, 2011

BKR GLOBAL, LLC, A FLORIDA LIMITED LIABILITY COMPANY, PLAINTIFF - APPELLANT,
v.
FOURWINDS CAPITAL MANAGEMENT, A CAYMAN ISLANDS COMPANY, PHAUNOS TIMBER FUND LIMITED, A GUERNSEY COMPANY, DEFENDANTS - APPELLEES.



Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:08-cv-00917-HLA-JRK

The opinion of the court was delivered by: Hill, Circuit Judge:

[PUBLISH]

U.S. COURT OFAPPEALS ELEVENTH CIRCUIT

JOHN LEY CLERK

(November 4, 2011)

Before MARCUS, WILSON and HILL, Circuit Judges.

BKR Global, LLC appeals the entry of summary judgment against it in its action for breach of contract against defendant FourWinds Capital Management, tortious interference with a contractual relationship against defendant Phaunos Timber Fund Limited, deceptive and unfair trade practices and civil conspiracy against FourWinds and Phaunos, and unjust enrichment against Phaunos. The district court held that BKR could not prevail on its contract claim and that all the other claims failed as a result.*fn1

I.

In January of 2007, BKR Global, LLC ("BKR") entered into a Consulting Agreement (the "Agreement") with FourWinds Capital Management ("FourWinds") that provided that BKR -- an experienced timber investment consulting firm -- would seek to provide FourWinds with "investment opportunities" in the timber industry. Essentially BKR agreed to act as a broker, finding and introducing potential investment opportunities for FourWinds. The Agreement provided that FourWinds would pay BKR $3000 per month to cover costs and expenses for these services. The Agreement also provided, however, that BKR would be "included in the investment process either as due diligence agent . . . or as acquisition agent" if FourWinds "pursu[ed] an investment opportunity that the Consultant introduced." The parties agreed that BKR would be compensated separately for such services,*fn2 and that FourWinds would "include [BKR] in any transaction which it has introduced for a period of two years from the date of the introduction . . . ."

In late March of 2007, a BKR representative attended a timber conference at which she learned of a timber company, Nemus, S/A, that was seeking investors in its teak and eucalyptus plantations in Brazil. BKR discussed investment opportunities for FourWinds with the Nemus representative who gave her a confidential prospectus to give to FourWinds. The prospectus provided background information about Nemus' business and history and outlined a $25 million dollar investment opportunity in the company.

BKR delivered this prospectus to FourWinds and follow-up emails were exchanged among the three parties. Almost immediately, however, FourWinds began to communicate directly with Nemus. Over the next two months, FourWinds had repeated conversations with Nemus, and even sent a representative to Brazil to meet with Nemus representatives in June. By late October, serious discussions about a joint venture were taking place. In November, FourWinds sent a letter to BKR terminating the Consulting Agreement.

On December 14, 2007, FourWinds announced that it was entering into a joint venture with Nemus through Phaunos Timber Fund Limited ("Phaunos"), a timberland investment vehicle for which FourWinds acts as investment manager, and a newly created entity, Eucateca S.A. This joint venture amounted to an investment of approximately $150,000,000.

BKR demanded its commission under the original Agreement. FourWinds rejected this demand, stating that BKR was not entitled to a commission because discussions with Nemus regarding the joint venture began after ...


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