PA

Peckar & Abramson

A Professional Corporation Attorneys & Counselors at Law

Electronically Filed
www.pecklaw.com

41 Madison Avenue
20th Floor
New York, NY 10010
tel. 212.382.0909
fax 212.382.3456

New York
New Jersey
Florida

November 13, 2014

Justice Saliann Scarpulla
Supreme Court of New York
County of New York
60 Centre Street
New York, NY 10007
RE:

Skanska Modular LLC and Richard A. Kennedy

ads. FCRC Modular, LLC
Index No. 652721/2014

Dear Justice Scarpulla:

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We are co-counsel to Skanska Modular LLC ("Skanska Modular") in the above

matter. In response to a letter request by counsel for FCRC Modular, LLC
("FCRC") dated October 23, 2014, Your Honor scheduled a conference for
November 19, 2014 at 2:15 PM.
It is our belief that the conference is no longer necessary. At this time, counsel for
FCRC disagrees. We, therefore, write this letter to advise Your Honor of the
current status of the matter and to briefly respond to FCRC's October 23, 2014
correspondence. To the extent necessary or relevant, we respectfully reserve
Skanska Modular's rights to more fully address all issues at the conference.
Presently, the members of the Limited Liability Company, FC+Skanska Modular
LLC ("FC+S") have accelerated the buy/sell provisions of the Limited Liability
Company Agreement ("LLC Agreement"). The parties have agreed to a stated
price, pursuant to which FCRC shall acquire Skanska Modular's interest in FC+S in
accordance with the provisions of the LLC Agreement. Closing is presently
scheduled for November 17, 2014. However, there remains a lot of work to be
done and there are terms which are being discussed in addition to the terms
provided in the LLC Agreement. It is our understanding that both parties are
proceeding as rapidly as reasonable, and we expect that the transaction will close
without a need to involve the Court.
In the event that closing has not occurred by November 19 and FCRC insists that
the conference proceed, we take this opportunity to briefly address FCRC's October
23, 2014 contentions.
Skanska Modular has never engaged in "efforts to prevent the reopening of the
factory which is at the heart of the parties' dispute."

ONSTRULEGAL

Peckar & Abramson

A Professional Corporation Attorneys & Counselors at Law

Honorable Saliann Scarpulla

November 13, 2014
Page 2

The issue which existed as of October 23, 2014 was FCRC's improper use of 3.7 of the LLC
Agreement. Section 3.7 embodies the "corporate opportunity doctrine" pursuant to which one
member has the ability to offer to FC+S the opportunity to perform work upon stated terms and
conditions. If FC+S declines to proceed with the opportunity upon the stated terms and
conditions, FCRC has the right to proceed with the opportunity on the same stated terms and
conditions.
Simply put, as of October 23, FCRC had presented one opportunity to FC+S and, after it was
rejected, attempted to proceed with a different opportunity than the one offered to FC+S.
Further, in apparent recognition that its actions were not in accord with the LLC Agreement,
FCRC forwarded to Skanska Modular's Directors a different 3.7 proposal on October 31, 2014.
No further action was taken on that proposal, as within a few days thereafter, the parties made
the buy-sell agreement described above.
In the event that the conference proceeds, we will be prepared to address all issues raised by
FCRC and any of Your Honor's questions.
Respectfully yours,

BRUCE D. MELLER
BDM.sc
cc.
Harold P. Weinberger, Esq. (by NYSCEF)
Sandy K. Feldman, Esq. (by NYSCEF)
Peter Flocos, Esq. (by NYSCEF)
Clay Haden, Esq. (electronically)