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Berliner Cohen Wins Case for Home Healthcare Business

Litigation partner Joshua Borger recently achieved a major victory for his client in a highly contentious arbitration involving the purchase of a home healthcare business gone awry.  Josh’s client, the seller of the business, initially contracted to sell the business to one person, who failed to make all the payments under the contract.  Both the seller and the original buyer agreed to allow a new buyer to purchase the business.  Unbeknownst to the seller, the new buyer had loaned money to the original buyer to purchase the business.  The original buyer informed the new buyer that he could not pay back the borrowed funds.  As a result, the new buyer had to purchase the business and make it successful to obtain the funds back.

The new buyer failed to make any payments to the seller for the business.  He defended his actions on numerous grounds.  First, he claimed that the seller failed to disclose accurate financial information about the business.  Second, federal indictments were issued to some individuals affiliated with the original buyer for alleged Medicare fraud.  The new buyer claimed that the original contract was an illegal scheme to allow an indicted person to own and operate the business in violation of a federal court’s order.  As argued, the illegality rendered all the contracts unenforceable.  Third, the seller did not perform her obligations under the contract, including training the new buyer. 

The actual hearing took place over the course of a week and a half.  Josh tactically undercut all the new buyer’s arguments, including during the first day of cross-examination of the new buyer.  As a result, the new buyer attempted to settle immediately thereafter to avoid spending further attorney’s fees.  When this failed, the new buyer then claimed that he was incompetent and unable to testify.  The Arbitrator assessed his competency and determined that he was indeed competent.  After receiving closing briefs, the Arbitrator issued an over twenty-page opinion in favor of the seller while soundly rejecting all of the new buyer’s arguments.  As a result, the new buyer must make full payment for the business, and the seller is entitled to recover all of her attorney’s fees and costs.

Joshua practices commercial and civil litigation in a variety of areas, including real estate, unfair business practices, breach of contract, trademarks, trade secrets, employment, and insurance coverage and litigation. For questions, Joshua can be reached at 408.286.5800 and