High capacity solids-ejecting centrifuge separators, purpose-built centrifugal separators.Pending before the court is plaintiff Bowgene Fluidics, Inc.'s motion for a preliminary injunction. Executed a cost/waste reduction program that produced 1/2 million in savings in the first year.Worldwide manufacturer of gas and oil (oil well) separators. Responsible for the Production, Mechanical Engineering, Purchasing, Operations Development & Logistics functions in a company with an annual turnover of USD 40M. Alfa Laval Biokinetics Inc.Bowgene was founded by Gary Fischer ("Fischer"), an individual with extensive experience in the sanitary valve industry. ("Bowgene") is a manufacturer and distributor of sanitary fluid handling valves. Alfa Laval is a leading global provider of first-rate products in the areas of.Plaintiff Bowgene Fluidics, Inc. About the job Product Group Parts Distribution and Logistics (PDL) in Alfa Laval has the responsibility for the global distribution center network that sources and supplies parts to customers, service organisation and manufacturing centers.Kerr Pump & Supply is a preferred distributor of Alfa Laval heat exchangers. And great ideas drive progress. BACKGROUNDCuriosity is the spark behind great ideas.
Bowgene describes the New Generation valves as "category killers" that will render all other sanitary valves in the same market obsolete. Bowgene became especially concerned when it learned that Dortmund intended to roll out its "New Generation" sanitary valves in the Fall of 2012 in the United States through Dortmund's own distribution channels rather than through Bowgene. On FebruAnderson was acquired by defendant Alfa Laval Dortmund GMBH ("Dortmund").As a result of the acquisition, and Bowgene's past dealings with Dortmund, Bowgene became concerned about Dortmund's willingness to fulfill its contractual obligations under the Agreement. On ApBowgene entered into a five-year agreement ("Agreement") with Anderson wherein Bowgene would be involved in the manufacturing, distribution, marketing, and sale of certain Anderson products in North America. At some point in 2007 GS Anderson GmbH ("Anderson") became interested in using Bowgene to fill its distribution and marketing needs for certain Anderson valve products. Home crpf pay slip2009) (internal quotation omitted). City of Starkville, Miss., 577 F.3d 250, 252-53 (5th Cir. LEGAL STANDARD"To be entitled to a preliminary injunction, the applicant must show (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest." Bluefield Water Ass'n, Inc. Alfa Laval Distribution Inc License To DistributeBowgene argues that the Agreement grants it an exclusive license to distribute, or at the very least receive a commission, on any and all Dortmund sanitary valves sold in North America. ANALYSISBecause the court finds that Bowgene has failed to carry its heavy burden of likelihood of success on the merits, the court focuses its analysis on that point. (internal quotation omitted). "A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation." Id. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). Therefore, the court uses Texas law's rules of contract construction.Unless otherwise noted, the court refers to the exhibits from the preliminary injunction hearing.Texas courts enforce unambiguous contracts as written. Texas law governs the interpretation of the Agreement. Wireshark monitor serial portCoker, 650 S.W.2d 391, 393 (Tex.1983).The court finds that the Agreement is unambiguous with respect to whether it is an exclusive distributorship. "If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law." Coker v. Likewise, uncertainty or lack of clarity in the language chosen by the parties is insufficient to render a contract ambiguous. Mere disagreement over the meaning of a provision in the contract does not make the terms ambiguous. Hernandez, 351 S.W.3d 387, 394 (Tex.App.-El Paso 2011, no pet.). At first blush this argument makes sense. Regardless of whether that language gives Bowgene a commission on all of Dortmund's sales—and the court does not here comment on whether it does—the Agreement does not give Bowgene the right to prevent Dortmund from making the very sales that the Agreement discusses.Bowgene argues that the mutual non-compete clause in the contract makes the contract exclusive. The first "Whereas" clause in the Agreement specifically contemplates that Dortmund will distribute to others when it states that it "is willing to include Bowgene, by way of either direct involvement or by way of commission, as mutually determined and agreed upon, in any and for all of sales of such products, within North America." Id. Paragraph 2 of the Agreement, granting the distributorship, contains no exclusivity terms. But, the evidence demonstrates that Bowgene and Dortmund do not manufacture the same products. For the same period, Dortmund may not compete with products or products similar to Bowgene's products. Paragraph 6 of the Agreement states that for the term of the Agreement and for 3 years following, Bowgene may not compete with Dortmund's products or products similar to Dortmund's products. However, closer examination of the language of the Agreement leads to a different conclusion. Bowgene's motion for preliminary injunction is DENIED.Signed at Houston, Texas on July 13, 2012. Thus Bowgene may not enjoin Dortmund from proceeding with its New Generation rollout through other distributors. Therefore, the court finds that the Agreement unambiguously grants Bowgene a non-exclusive distributorship. Accordingly, Bowgene cannot convert the non-compete clause into an exclusive distributorship. What the non-compete does not do is affirmatively force Dortmund to sell its own valves through Bowgene. And if Bowgene were to sell the valves that Dortmund manufactures, then the non-compete would again swing into play.
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