Emerson Radio Corp. v. Stelling ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-17-2002
    Emerson Radio Corp v. Stelling
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 01-3689
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    Recommended Citation
    "Emerson Radio Corp v. Stelling" (2002). 2002 Decisions. Paper 657.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/657
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    __________
    No. 01-3689
    __________
    EMERSON RADIO CORP; THOMAS HACKETT;
    FIDENAS INTERNATIOL BANK; GEOFFREY P. JURICK;
    WAYNE J. ARANHA
    v.
    DONALD K. STELLING; PETRA JACOBS STELLING;
    ERIC F. GEBAIDE; FIDENAS INTERNATION LIMITED;
    ELISION INTERNATIONAL INC.
    BARCLAYS BANK PLC   (Intervenor in D.C.)
    Petra Jacobs Stelling,
    Appellant
    (Newark N.J. Civil No. 94-cv-03393)
    WAYNE J. ARANHA, Official Liquidator of FIDENAS INVESTMENT LIMITED
    v.
    GEOFFREY P. JURICK; GSE MULTIMEDIA TECHNOLOGIES CORPORATION;
    FIDENAS INTERNATIONAL LIMITED, L.L.C.; ELISION INTERNATIONAL INC.
    (Newark N.J. Civil No. 96-cv-01695)
    WAYNE J. ARANHA, Provisional Liquidator
    v.
    FIDENAS INVESTMENT LIMITED, Debtor in a foreign proceeding,
    (Case No. 94-D 42677(BRL), USBC, S.D.N.Y.)
    (Newark N.J. Civil No. 94-cv-04380)
    THOMAS HACKETT, Official Liquidator;
    FIDENAS INTERNATIONAL BANK LIMITED
    v.
    GEOFFREY P. JURICK; ERIC F. GEBAIDE; FIDENAS INTERNATIONAL
    LIMITED;
    WAYNE J. ARANHA, Official Liquidator of Fidenas International Bank Limited
    BARCLAYS BANK PLC (Intervenor in D.C.)
    (Newark N.J. Civil No. 95-cv-01179)
    __________
    No. 01-3818
    __________
    EMERSON RADIO CORP; THOMAS HACKETT;
    FIDENAS INTERNATIOL BANK; GEOFFREY P. JURICK;
    WAYNE J. ARANHA
    v.
    DONALD K. STELLING; PETRA JACOBS STELLING;
    ERIC F. GEBAIDE; FIDENAS INTERNATION LIMITED;
    ELISION INTERNATIONAL INC.
    BARCLAYS BANK PLC   (Intervenor in D.C.)
    Geoffrey P. Jurick,
    Appellant
    (Newark N.J. Civil No. 94-cv-03393)
    WAYNE J. ARANHA, Official Liquidator of FIDENAS INVESTMENT LIMITED
    v.
    GEOFFREY P. JURICK; GSE MULTIMEDIA TECHNOLOGIES CORPORATION;
    FIDENAS INTERNATIONAL LIMITED, L.L.C.; ELISION INTERNATIONAL INC.
    (Newark N.J. Civil No. 96-cv-01695)
    WAYNE J. ARANHA, Provisional Liquidator
    v.
    FIDENAS INVESTMENT LIMITED, Debtor in a foreign proceeding,
    (Case No. 94-D 42677(BRL), USBC, S.D.N.Y.)
    (Newark N.J. Civil No. 94-cv-04380)
    THOMAS HACKETT, Official Liquidator;
    FIDENAS INTERNATIONAL BANK LIMITED
    v.
    GEOFFREY P. JURICK; ERIC F. GEBAIDE; FIDENAS INTERNATIONAL
    LIMITED;
    WAYNE J. ARANHA, Official Liquidator of Fidenas International Bank Limited
    BARCLAYS BANK PLC (Intervenor in D.C.)
    (Newark N.J. Civil No. 95-cv-01179)
    __________
    No. 02-3570
    __________
    EMERSON RADIO CORP; THOMAS HACKETT;
    FIDENAS INTERNATIOL BANK; GEOFFREY P. JURICK;
    WAYNE J. ARANHA
    v.
    DONALD K. STELLING; PETRA JACOBS STELLING;
    ERIC F. GEBAIDE; FIDENAS INTERNATION LIMITED;
    ELISION INTERNATIONAL INC.
    BARCLAYS BANK PLC   (Intervenor in D.C.)
    Petra Jacobs Stelling,
    Appellant
    (Newark N.J. Civil No. 94-cv-03393)
    WAYNE J. ARANHA, Official Liquidator of FIDENAS INVESTMENT LIMITED
    v.
    GEOFFREY P. JURICK; GSE MULTIMEDIA TECHNOLOGIES CORPORATION;
    FIDENAS INTERNATIONAL LIMITED, L.L.C.; ELISION INTERNATIONAL INC.
    (Newark N.J. Civil No. 96-cv-01695)
    WAYNE J. ARANHA, Provisional Liquidator
    v.
    FIDENAS INVESTMENT LIMITED, Debtor in a foreign proceeding,
    (Case No. 94-D 42677(BRL), USBC, S.D.N.Y.)
    (Newark N.J. Civil No. 94-cv-04380)
    THOMAS HACKETT, Official Liquidator;
    FIDENAS INTERNATIONAL BANK LIMITED
    v.
    GEOFFREY P. JURICK; ERIC F. GEBAIDE; FIDENAS INTERNATIONAL
    LIMITED;
    WAYNE J. ARANHA, Official Liquidator of Fidenas International Bank Limited
    BARCLAYS BANK PLC (Intervenor in D.C.)
    (Newark N.J. Civil No. 95-cv-01179)
    __________
    ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW JERSEY
    D.C. Civil No. 94-cv-3393
    District Judge: The Honorable Nicholas H. Politan
    __________
    Argued July 24, 2002
    __________
    Before: SLOVITER, NYGAARD, and BARRY, Circuit Judges
    (Opinion Filed:   October 17, 2002)
    ____________
    Frederick   R. Kessler, Esquire (Argued)
    Wollmuth,   Maher & Deutsch
    500 Fifth   Avenue
    New York,   NY 10110
    Attorney for Appellant/Cross Appellee
    Gerald Krovatin, Esquire (Argued)
    Krovatin & Associates
    744 Broad Street, Suite 1901
    Newark, NJ 07102
    Attorney for Appellee/Cross Appellant
    ____________
    OPINION
    ____________
    BARRY, Circuit Judge
    We are called upon in what the District Court described as this "seemingly endless
    litigation saga" to review the appeal of appellant Petra Jacobs Stelling and the cross-
    appeal of Geoffrey P. Jurick from the District Court’s Letter Opinion and Order dated
    August 29, 2001. Stated somewhat simply, Stelling appeals the entry of an order fixing
    the amount to which she is entitled after the termination of an agreement entered into by
    the parties. Jurick, in turn, cross-appeals the termination itself and the order fixing the
    amount. For the reasons that follow, we will affirm in part and reverse in part. We have
    jurisdiction under 28 U.S.C. 1292(b).
    The parties are fully familiar with the long and arduous history of this case and we
    see no need to reprise that history here, particularly given the fact that we are writing
    only for the parties in this not precedential opinion. We, therefore, will recount only
    those facts necessary to place into perspective the issues we are called upon to decide.
    In 1994, Emerson Radio Corp. ("Emerson") emerged from bankruptcy pursuant to
    a plan of reorganization. It then issued 30 million shares, and the creditors claimed
    entitlement to some of them. Subsequent litigation between Stelling and other creditors,
    on the one hand, and Emerson and its CEO Jurick, on the other, led to a 1996 Stipulation
    of Settlement and Order (the "Agreement"). The parties stipulated in that Agreement
    that Jurick and certain related parties were jointly and severally liable to Stelling for $21
    million (the "Consent Judgment"), as well as to other creditors for other amounts.
    29,152,542 shares of Emerson common stock were deposited with the District Court, a
    portion of the proceeds from the sale of which were to satisfy the Consent Judgment.
    Certain shares were deposited with the Court as "Pool A" shares to be marketed by an
    Advisor with the proceeds of the sale to be distributed to Stelling and the other creditors.
    To avoid default on an earlier Indenture to which Jurick was subject, a separate block of
    shares, the "Pool B" shares, were also deposited with the Court but held in Jurick’s name
    in order to retain his beneficial ownership of 25% of Emerson’s outstanding common
    shares. The Pool A and Pool B shares secured the payment of the amount due the
    creditors.
    The Advisor, appointed by the Court, determined that for a number of reasons it
    was unfeasible or even impossible to sell the shares on the market. In March 2000,
    therefore, the District Court, acting pursuant to the Agreement, terminated it after finding
    that there were no reasonable prospects for achieving its goals. The following May, the
    Court released approximately 8 million shares to Stelling (her portion, as among the
    creditors, of the Pool A shares), which she shortly thereafter sold to Emerson for $.50 per
    share. In accordance with the language of the Agreement, which provided for entry or
    release of the Consent Judgment upon termination of the Agreement by the Court,
    Stelling then requested a restated judgment that reflected a credit for the sale to Emerson
    (that is, reducing the amount of the Consent Judgment to take into account the money
    received from the sale). Jurick did not accept the proposed restated judgment, and in late
    2000, Stelling moved for the original Consent Judgment to be entered and released. The
    District Court held hearings in June 2001 for the purpose of valuing both the Pool A and
    Pool B shares to determine the amount by which the Consent Judgment should be
    reduced or restated.
    In August 2001, the District Court determined the value of the shares, and thus the
    credit to be applied and the ultimate amount due Stelling   $9,717,020.12. As suggested
    above, neither party was happy with the District Court’s ruling, and both appealed.
    I.
    It is appropriate to begin our discussion with that part of Jurick’s cross-appeal that
    challenges the termination of the Agreement because only if termination was proper do
    we reach the issues raised by what happened thereafter. Critical to this discussion, of
    course, is the language of the termination provision of the Agreement. That provision,
    11(b)(v), states:
    (b) Termination Upon the Order of the Court. In the event . .
    . (v) that there is no reasonable prospect that the goals contemplated by this
    Stipulation and Order can be achieved, then any Creditor may apply to the
    Court, on notice to all other Lead Parties, for an order from the Court
    declaring that the Stipulation and Order is terminated. After a hearing, at
    which any Lead Party may participate, the Court, in its discretion, based on
    the totality of the circumstances, including, without limitation, evidence
    with respect to the then-current Marketing Plan or other advice or opinions
    of the Advisor and the value of the remaining Emerson Shares, if any, and
    the available ways and means of realizing such value, shall determine
    whether to order the termination of this Stipulation and Order on the
    grounds that its goal and purposes are not reasonably likely to be realized.
    A.77-78.
    In November 1997, Stelling moved to terminate the Agreement because she had
    not been paid "one cent." The District Court held hearings over six days in April and
    July of 1998, taking extensive testimony about Emerson’s financial condition from the
    Advisor and others. The Advisor testified that a sale of Emerson shares "for the amounts
    mentioned and discussed or called for in the settlement agreement are highly unlikely."
    A.653. He described the low stock price, the price dilution that had occurred through
    1997 and which continued at that time, and Emerson’s failure to meet its (and his market
    plan’s) projected performance. The District Court, when it subsequently ruled, credited
    this testimony, and made explicit findings as to the impact of the large quantity of
    outstanding shares on share value, the low trading price of the shares, the failed
    negotiation for Emerson shares, and the failure of the Advisor’s marketing plan and other
    avenues of "satisfying creditors’ claims." A.1532-35.
    The Court also noted the failure of certain 1999 negotiations between Emerson
    and Oaktree Capital Management, LLC, that would have significantly helped all parties’
    financial positions. The Court found that this was important evidence that there was no
    reasonable prospect that additional help could be found, and that Emerson’s financial
    forecast was less than favorable. In an opinion dated March 3, 2000, the Court
    terminated the Agreement.
    Jurick argues in his cross-appeal that despite the poor prognosis for selling the
    Emerson shares or increasing their value, the District Court’s termination of the
    Agreement was premature because it did not consider the "turnaround" the company had
    made and the profits it had recently shown. Such a turnaround may in fact have
    generated profits, and there may have been long-term promise for Emerson. It is clear,
    however, that the District Court had the opportunity to consider all of that information, in
    the very, very detailed form not only of the financial statements of Emerson’s Annual
    Reports for the years and quarters immediately preceding its opinion, but also for the
    periods immediately preceding the hearing on whether to terminate the Agreement. The
    District Court indicated that it found these Reports insufficiently persuasive as to
    Emerson’s promise, especially given the Advisor’s observation that Emerson stock prices
    had not responded even to the increased profits.
    Somewhat relatedly, the Advisor testified that an alternative means of increasing
    Emerson’s profitability, i.e. changing management, would require "long-term"
    evaluation; that is, whether a management change might help the company would take
    some time to determine. Also looking far into the future, one of Emerson’s directors
    testified that in three to five years, Emerson would turn around to the point that both the
    share prices and the overall sale value of the company would rise. The District Court
    concluded, however, that giving the additional time required to hopefully achieve
    financial stability and/or profitability would frustrate the purposes of the Agreement.
    In terminating the Agreement, and terminating it when it did, the District Court
    did not abuse the discretion that the parties expressly gave it. Jurick’s argument to the
    contrary fails.
    II.
    What should have happened following termination is the focus of the parties’
    attention on Stelling’s appeal. Again, we must initially turn to the Agreement, which, we
    find, clearly and explicitly provides the answer. If the District Court terminated the
    Agreement, as it did here, the Agreement provides, at 11(c), that, within five business
    days,
    . . . the parties shall take the following actions and request
    that the Court (or its designee) dispose of the documents deposited with it
    in the following manner:
    (i) . . . the Creditors shall consult with Jurick with respect
    to the amount of the Consent Judgments to be entered . . . , after giving
    appropriate credit to the Jurick group for any payments previously made
    pursuant to paragraph 1 hereof. . . . Following a determination by the
    Creditors, which determination shall be made in their sole discretion, of the
    appropriate reduced amount of the Consent Judgments . . ., the Creditors
    shall request that, within ten (10) Business Days, Jurick cause each
    judgment debtor to deliver to them executed Consent Judgments, in form
    acceptable to counsel for the Creditors, in the reduced amounts
    (collectively, the "Restated Consent Judgments"). If the Restated Consent
    Judgments are delivered, the Creditors will then request, on notice to each
    of the other Lead parties, that the Court enter the Restated Consent
    Judgments. Upon the entry by the Court of the Restated Consent
    Judgments, the original Consent Judgments shall returned to the judgment
    debtors. If all of the Restated Consent Judgments are not delivered or any
    proposed judgment debtor seeks to be heard in any respect concerning the
    amount or form of any Restated Consent Judgment, then the Court will
    enter the original Consent Judgments (in the amount of . . . $49.5 million
    against Jurick and each other judgment debtor). Following the entry of the
    original Consent Judgments or the Restated Consent Judgments, the
    Creditors may take any action permitted by law to execute upon their
    Consent Judgments to collect the unpaid balance. . . .
    A.78-80.
    After the March 2000 termination of the Agreement, Stelling proposed a restated
    consent judgment to Jurick. Jurick did not accept the restated judgment, and Stelling
    submitted a proposed order to the District Court restating the original Consent Judgment
    and releasing and entering it. The Court heard argument on the issue of entry of the
    judgment, but did not resolve the issue. Instead, hearings were held to value the shares.
    hearings which led to the August 29, 2001 order from which these appeals were taken.
    Stelling argues that the Court should not have held these hearings, but, rather, and
    without more, should have entered the original Consent Judgment given her compliance
    with the procedure outlined in 11(c) and Jurick’s opposition to the restated judgment
    and consequent refusal to deliver it.
    Settlement agreements are often treated as contracts, and basic contract principles
    apply. In re: Cendant Corp. Prides Litig., 
    233 F.3d 188
    , 193 (3d Cir. 2000); see also
    Coltec Industries, Inc. v. 
    Hobgood, 280 F.3d at 262
    , 269 (3d Cir. 2002). There is little
    question that, given that fact, a court should endeavor to stay within the "four corners" of
    the agreement and abide by the plain meaning of what the parties have agreed to. New
    York State Elec. & Gas Corp. v. Federal Energy Reg. Comm’n, 
    875 F.2d 43
    , 45 (3d Cir.
    1989) (stating that "contract principles are generally applicable to the construction of
    settlement agreements and that it would be error . . . to depart from the plain meaning of
    a settlement agreement in establishing the parties’ obligations"). It is a given that the
    language of an agreement should not be tortured to create an ambiguity where none
    exists. It is also a given, of course, that the parties’ intent is important.
    Paragraph 11(c) clearly and unambiguously provides that, within five business
    days of the termination, the creditors shall consult with Jurick as to the amount of the
    consent judgments to be entered after giving appropriate credit to the Jurick group for
    any payments previously made by Jurick or his group. If there is no agreement as to the
    reduced amount, which amount is in the sole discretion of the creditors to determine, the
    Court will enter the original consent judgments   $21,000,000 as to Stelling   and the
    creditors may execute upon them to collect the unpaid balance.
    Prior to the March 3, 2000 termination, there were no payments which had been
    "previously made" to Stelling and, thus, no reduced amount much less any agreement on
    a reduced amount. The District Court, then, under the plain language of the Agreement
    should have entered the original Consent Judgment. Indeed, in its March 3rd opinion,
    that is precisely what the Court said it was going to do:
    [T]he standards for termination have been met and the Stipulation is
    declared terminated. The Consent Judgments executed as part of the
    Stipulation of Settlement will be released upon appropriate applications.
    The issue which remains to be decided is the appropriate distribution of the
    shares of stock previously deposited with the Court.
    A.1535.
    That should have been, but was not, the end of it. Although counsel agreed that,
    under the Agreement, upon termination the Consent Judgment would be entered, they
    also agreed with the District Court that the Pool A shares sold by Stelling to Emerson
    albeit after termination   should act as a credit against that Judgment. A.7. Jurick
    argued that the Pool B shares should also act as a credit, and the District Court agreed,
    believing that "to permit Mrs. Stelling to obtain a judgment without regard to the value
    of the retained [Pool B] shares would increase the agreed amount of liability by the value
    of the shares, a result not contemplated by nor agreed to in the Stipulation." 
    Id. And so
    commenced valuation hearings as to both the Pool A and Pool B shares, although the
    Agreement itself provided for no such thing.
    III.
    We will not attempt to put the cow back in the barn as to the Pool A shares.
    Those shares have been sold and the parties agreed that there should be a credit against
    the original Consent Judgment with the only dispute being how much. Stelling
    essentially argues that because she sold her Pool A shares to Emerson for $0.50, the
    District Court’s finding, which Jurick accepts, that the fair market value was closer to
    $0.8675 was erroneous. The value assigned to those shares by the District Court is a
    factual determination we review for clear error. Matter of Bankers Trust Co., 
    658 F.2d 103
    , 108 (3d Cir. 1981)(in assessing the worth of a destroyed ship, clearly erroneous
    standard applies to determination of fair market value).
    Ordinarily, in assessing the value of shares of stock, "the average exchange price
    quoted on the valuation date furnishes the most accurate, as well as the most readily
    ascertainable, measure of fair market value." Amerada Hess Corp. v. Commissioner of
    Internal Revenue, 
    517 F.2d 75
    , 83 (3d Cir. 1975) (citing United States v. Cartwright, 
    411 U.S. 546
    , 551 (1973)). This typical measure, however, is subject to exceptions    for
    instance, when the trading date reflects an atypically high or low value; when shares have
    some other restrictions on them; or when, as here, a "blockage discount" might apply
    because the sale in question involved an "exceptionally large block" of shares. Amerada
    
    Hess, 517 F.2d at 83-84
    & n.33; see also Seas Shipping Co. v. Commissioner, 
    371 F.2d 528
    (2d Cir. 1967). We noted in Amerada Hess, however, that even under such
    "exceptional" cases, the observed market value might be a more appropriate benchmark,
    in part because the vagaries of the market to which investors subject themselves include
    such factors. 
    Id. at 84;
    cf. 
    id. at 92
    (Hunter, J., concurring in part and dissenting in part
    Stelling argues that, under that reasoning and barring other evidence, the $0.50
    price at which she sold the Pool A shares to Emerson is a better benchmark of value and
    the Consent Judgment should be reduced by applying that price, rather than $0.8675. We
    disagree.
    First, the District Court explained why it found the $0.50 value unfair and why it
    found that the amount of credit to be deducted from the proposed judgment should be
    $0.8675 per share:
    This is the exact amount that was paid for the shares beneficially owned by
    [the other creditors] shortly before the sale by Mrs. Stelling of her shares
    for $0.50. This is also the amount that was offered to Mrs. Stelling for her
    Pool A shares . . . [Her] sale was not triggered by an offer made by
    Emerson. Rather, it was Mrs. Stelling who offered the shares to Emerson
    for $0.50 per share. Why that offer was made for $0.50 per share and not
    $0.8675 per share is a total mystery to this Court.
    A.7-8. Moreover, as Stelling’s own expert testified on cross-examination, a price of 50,
    60, 70, or 87 cents for these shares would have been "fair." A.1786.
    [T]he clearly erroneous standard of review does not permit an appellate
    court to substitute its findings for those of the trial court. It allows only an
    assessment of whether there is enough evidence on the record to support
    those findings. That a different set of inferences could be drawn from the
    record is not determinative. It is sufficient that the District Court findings
    of fact could be reasonably inferred from the entire trial record.
    Scully v. US WATS, Inc., 
    238 F.3d 497
    , 506 (3d Cir. 2001) (citations and internal
    quotation marks omitted). There was no clear error in determining that $0.8675 was a
    better estimate of the Pool A shares’ value than was $0.50, and we will affirm the District
    Court’s Order of August 29, 2001 insofar as it valued the Pool A shares.
    IV.
    We will not enter into the fray with reference to the valuation of the minority,
    unregistered Pool B shares held in Jurick’s name and wonder why the District Court felt
    it necessary to do so. Again, there was no provision in the Agreement even suggesting
    that at termination, where no "payment" had been made, these shares   or any others
    should be valued and, thus, unlike the District Court, we are not "satisfied that the intent
    of the Agreement requires a credit for the Pool B shares." A.7. Moreover, Stelling
    argued, and continues to argue, that any valuation of Pool B shares was premature and
    should be addressed when she seeks to execute on the Consent Judgment for only then
    can an accurate valuation be performed. The District Court did not discuss this
    argument, and effectively treated the Pool B shares as if they were already in Stelling’s
    hands as "payment" towards that Judgment. This was error.
    No "payment" has been made by Jurick to Stelling vis-a-vis the Pool B shares and,
    indeed, may never be, unlike the Pool A shares where "payment" was made, albeit
    belatedly, and the original Consent Judgment credited. Any payment now to be made by
    Jurick to Stelling, whether that payment be made by virtue of Jurick’s sale of the Pool B
    shares or other sources of funds he may have at his disposal, will also be valued and
    deemed credited as of the time of payment. And if the Pool B shares or a portion thereof
    were to be released to Stelling rather than sold by Jurick, those shares should be valued
    as of the time of release, for that would be the time of payment. Even counsel for Jurick
    conceded that "until there is some value realized for the shares, your Honor can’t fix the
    appropriate amount." A.1823. It is, in our view, the amount of monies or shares paid to
    Stelling   if and when they are paid   that should be credited against the Consent
    Judgment, not some value predicated on largely hypothetical facts and assumptions.
    Parenthetically, at oral argument before us, we suggested the possibility of
    crediting the value of the Pool A shares to the original Consent Judgment ($21,000,000
    with a credit of $7,094,009.88) and releasing all or part of the Pool B shares to Jurick
    who could then sell those shares, pay the proceeds to Stelling, and receive a credit for
    that amount. This, indeed, was suggested by the District Court at one point and, while
    both counsel were receptive, one or both clients apparently were not. (A.1690-91, 1702,
    1713, 1817).
    We recognize, of course, that the retained Pool B shares are meant to serve as
    collateral for the Judgment. It is at least conceivable that that collateral could be
    dissipated if turned over to Jurick. We note, however, that the Agreement contemplated
    the appointment of a Settlement Agent authorized, subject to certain provisions which we
    need not describe, to sell Emerson shares and distribute the proceeds to the creditors and
    to Jurick. A.51-52. While the sales were to be made under a marketing plan that, as far
    as the record reflects, did not come to fruition, the concept of a disinterested third party
    being authorized to sell the Pool B shares, with the proceeds sufficient to satisfy the
    Judgment thereafter paid to Stelling, seems to make sense. We leave that to the District
    Court to consider on remand if it becomes necessary for the Court to reach the issue of
    the disposition of the Pool B shares.
    In summary, then, we will affirm in part and reverse in part the District Court’s
    order of August 29, 2001 and remand for the District Court to enter judgment in favor of
    Stelling and against the Jurick parties for the sum of $21,000,000 less $7,094,009.88 for
    a net sum of $13,905.990.12.
    TO THE CLERK OF THE COURT:
    Kindly file the foregoing Opinion.
    /s/ Maryanne Trump Barry
    Circuit Judge