[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-17114 MAY 1, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-60453-CV-JIC
AKERS BIOSCIENCES, INC.,
A foreign corporation,
Plaintiff-Counter-defendant-
Appellee,
versus
TUNDRA MANAGEMENT LTD.,
an unregistered foreign company doing
business in Florida,
Defendant,
ALLIANCE INVESTMENT MANAGEMENT,
LTD., an unregistered foreign company doing
business in Florida,
Defendant-Counter-claimant-
Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 1, 2007)
Before BIRCH and FAY, Circuit Judges, and DUFFEY,* District Judge.
__________________________________________________________________
*Honorable William S. Duffey, Jr., United States District Judge for the Northern District of Georgia,
sitting by designation.
PER CURIAM:
This appeal stems from a three party financial arrangement between Akers
Biosciences, Alliance Investment and Tundra. Akers borrowed money from Tundra
and deposited 2.8 million shares of its stock as collateral. Tundra, in turn, had the
stock delivered to Alliance Investment with instructions to sell it and use the proceeds
in furtherance of Tundra’s business arrangement. The core question in this litigation
was whether or not Alliance Investment knew that under the terms of the loan
between Tundra and Akers Biosciences the stock was not to be sold unless there was
a default in the payments due on the loan.
Akers Biosciences sued Alliance Investment alleging a breach of escrow and
fraudulent omission. Alliance Investment counterclaimed alleging fraudulent and
negligent misrepresentations. A jury trial ensued with verdicts denying recovery to
either party.
Alliance Investment brings this appeal raising three issues:
1. Whether the district court erred in precluding Alliance from asserting
its rights as a holder in due course of the collateral shares.
2. Whether the district court erred in submitting Aker’s fraudulent
omission claim to the jury absent any evidence to establish the existence
of a confidential relationship between Alliance and Akers.
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3. Whether the district court erred in not ordering a new trial where the
jury’s finding that Akers did not misrepresent the negotiability of the
collateral shares was against the clear and manifest weight of the
evidence.
After studying the parties briefs, hearing oral argument and reviewing the
record, we find no merit in these contentions. There were no errors in the rulings of
the district court, the case was properly submitted to the jury which resolved key
issues of credibility and the record supports the judgments entered.
AFFIRMED.
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