706 F.3d 8 (1st Cir. 2013), 12-1102, Global NAPs, Inc. v. Verizon New England, Inc.

Docket Nº:12-1102, 12-1327.
Citation:706 F.3d 8
Opinion Judge:PER CURIAM.
Party Name:GLOBAL NAPS, INC.; PPUC Pennsylvania Public Utility Commission; American Registry for Internet Numbers, Ltd., Plaintiffs, v. VERIZON NEW ENGLAND, INC., d/b/a Verizon Massachusetts, Defendant, Appellee, Quality Speaks, LLC, Plaintiff, Appellee, MA Dept. of Telecommunications & Energy; Paul B. Vasington, in his capacity as Commissioner; James Connell
Attorney:Andrew Good, Good & Cormier, Eric C. Osterberg and Osterberg LLC on brief for counterclaim defendant, appellant. John F. Drew, Andrea L. Martin and Burns & Levinson LLP on brief for plaintiff, appellee. Donald H.C. Libbey, Donald H.C. Libbey P.C., Steven J. Marullo and Law Offices of Steven J. Ma...
Judge Panel:Before LYNCH, Chief Judge, STAHL and HOWARD, Circuit Judges.
Case Date:January 18, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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706 F.3d 8 (1st Cir. 2013)

GLOBAL NAPS, INC.; PPUC Pennsylvania Public Utility Commission; American Registry for Internet Numbers, Ltd., Plaintiffs,

Quality Speaks, LLC, Plaintiff, Appellee,

v.

VERIZON NEW ENGLAND, INC., d/b/a Verizon Massachusetts, Defendant, Appellee,

MA Dept. of Telecommunications & Energy; Paul B. Vasington, in his capacity as Commissioner; James Connelly, in his capacity as Commissioner; W. Robert Keating, in his capacity as Commissioner; Deirdre K. Manning, in her capacity as Commissioner; Eugene J. Sullivan, Jr., in his capacity as Commissioner, Defendants,

Carl F. Jenkins, Receiver, Appellee,

v.

Frank T. Gangi, Counterclaim Defendant, Appellant.

Nos. 12-1102, 12-1327.

United States Court of Appeals, First Circuit.

January 18, 2013

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[Copyrighted Material Omitted]

Page 10

Andrew Good, Good & Cormier, Eric C. Osterberg and Osterberg LLC on brief for counterclaim defendant, appellant.

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John F. Drew, Andrea L. Martin and Burns & Levinson LLP on brief for plaintiff, appellee.

Donald H.C. Libbey, Donald H.C. Libbey P.C., Steven J. Marullo and Law Offices of Steven J. Marullo on brief for receiver, appellee.

Before LYNCH, Chief Judge, STAHL and HOWARD, Circuit Judges.

PER CURIAM.

Since 2002, Global NAPs, Inc. (" GNAPs" ) has been engaged in litigation with Verizon New England, Inc. that originally arose over access fees the two companies owed each other for interconnecting their telephone networks. Verizon is the former local telephone monopoly in Massachusetts, known as the " incumbent local exchange carrier" (ILEC); GNAPs is a startup competitor, known as a " competitive local exchange carrier" (CLEC). Although Verizon prevailed in the underlying dispute roughly four years ago, the district court is still overseeing a receivership sale to satisfy the judgment against GNAPs. The company's former principal, Frank Gangi, appeals to challenge an injunction the court issued in connection with that sale. Finding no error, we affirm.

Because these consolidated cases represent the seventh and eighth appeals filed by Gangi or his former company GNAPs in the course of this decade-long litigation,1 we recount only those facts necessary to resolve the instant dispute.

In brief, GNAPs sued Verizon over the fee issue and Verizon filed various counterclaims. In early 2009, following serious discovery violations by GNAPs, including instances in which the district court found that Gangi lied and withheld or destroyed evidence, the court entered a $57.7 million default judgment in favor of Verizon. The district court also ruled that Gangi and various Gangi-controlled entities were alter egos of GNAPs and thus liable for the judgment. A panel of this court affirmed in April 2010, Global NAPs, Inc. v. Verizon New Eng. Inc. ( GNAPS V ), 603 F.3d 71, 95 (1st Cir.2010), cert. denied, --- U.S. ----, 131 S.Ct. 1044, 178 L.Ed.2d 864 (2011), and the following month the district court appointed a receiver to marshal and sell the assets of GNAPs and its alter egos.

The receiver soon began the process, although his efforts were hampered by Gangi, who, among other stratagems seemingly designed to conceal or protect his assets, apparently had transferred ownership of his $400,000 Porsche to a ten-year-old child. In any event, the receiver eventually focused his efforts on two Gangi-controlled companies other than GNAPs itself: BroadVoice and Convergent. BroadVoice offers VoIP service, which allows customers to place ordinary telephone calls over the internet, typically at a substantial savings compared to traditional phone service; Convergent designs network infrastructure hardware and software that enables connections among and between traditional telephone networks and VoIP telephone systems.

In August 2011, as a precursor to holding an auction that he hoped would lead to a final sale order from the district court, the receiver secured a stalking horse bid for BroadVoice and Convergent. The stalking horse bidder's asset purchase

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agreement (APA) included the following provision:

Restraining Order Regarding Frank Gangi and Employees of GNAPs. The Sale Order [ultimately entered by the district court] shall provide that Frank Gangi and any other employees or agents of the Receivership Estates shall be immediately and permanently enjoined from directly or indirectly interfering with, taking action to reduce the value of, or otherwise damaging the value of the Purchased Assets. The form and substance of such order shall be satisfactory to the Purchaser.

The receiver then filed a sale motion, which requested the court's permission to hold an auction that used the stalking horse bid as the minimum price for bidders and the stalking horse APA as the acceptable terms for bidders.

In September 2011, the district court issued an order granting the request, and the following month the receiver accepted a bid from Quality Speaks, LLC (" QS" ) over competing bids from...

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