Written submissions in summary proceedings — McDonald's

24/86/20 19:21 Ps: 2 MCDONALD'S FRANCE, SEBOL, B&O, LES PINS, COLLORAFI I4+99/5F SUBMISSIONS FOR: The Company MCDONALD'S FRANCE, S.A. whose registered office is at 1 rue Gustave Eiffel, 78045 GUYANCOURT CEDEX. R.C.S. VERSAILLES 722 003 936 acting through its Chairman in office Having as Avoué Having as Lawyers the SCP FISSELIER - CHILOUX - BOULAY 23 rue du Louvre 75001 PARIS M. le Bâtonnier Jean-Marie LELOUP, Maître Michèle LELOUP, M. le Bâtonnier Philippe MISSEREY, Lawyers Associates of the LELOUP LAW FIRM, 61 rue Th. Renaudot 86000 POITIERS and 128 boulevard Saint-Germain AGAINST: 1/ The S.A. SEBOL represented by Monsieur Bernard COLLORAFI 2/ The SARL B& O represented by Monsieur Bernard COLLORAFI 3/ The SARL LES PINS represented by Monsieur Bernard COLLORAFI 4/ Monsieur Bernard COLLORAFI Having as Avoué Maître PAMART Having as Lawyer Maître Jean-Paul CLEMENT, avenue Mozart 75016 PARIS Fax received from : B1.45_27 67.13 24/86/28 -19121 •Pg: 3 MAY IT PLEASE THE FIRST PRESIDENT 1°. Following the judgment of the Commercial Court of Paris dated 18 May 1998, Monsieur COLLORAFI and the three companies of which he is the absolute master (SEBOL, B&O, LES PINS) referred to you, by summons of 29 May 1998, a request for suspension of the provisional enforcement ordered by this judgment Since then, on 23 June, Monsieur COLLORAFI and his three companies filed submissions withdrawing the offer of consignation contained in the summons and requesting the reinstatement of the three companies in businesses which never belonged to them, since they were lessee-managers of them, and which they occupied and operated without right or title since 2 January 1998. These claims are, in part, inadmissible and, in their entirety, ill-founded. 2°. The judgment of the Commercial Court of Paris of 18 May is clear and explicit. Monsieur COLLORAFI devotes the main part of his arguments to going back over the merits of the case, according to arguments identical, notably on the figures, to those which he had at length put forward before the Court, which the Court examined and rejected. This argumentation concerning the merits of the dispute is beside the point and ineffective in the present debate. It will be noted only that the claimants distort the truth when they write that Monsieur COLLORAFI would have had to take the lease-management of the restaurants ANTIBES NORD (Company SEBOL) and ANTIBES OUEST (Company LES PINS) “against his will” (see summons p. 5, antepenultimate and penultimate lines). The letters of Monsieur COLLORAFI: - of 16 December 1996 (opponents' document 4), - of 10 January 1997 (opponents' document 6), • of 31 January 1997 (opponents' document 7), ..i... Fax received from : 01.15_27 6Z 13 24/06/98-19:21 this last one registered, showing on the contrary the determination with which Monsieur COLLORAFI wanted to take these two restaurants on lease-management. Likewise, Monsieur COLLORAFI dares to write that he was evicted “from his restaurants” (submissions p. 9, last paragraph). He had no right to use the possessive; the three businesses in question are businesses belonging to MCDONALD'S FRANCE, the lease-management of which was granted to Monsieur COLLORAFI, who granted the operation of them to his companies, by lease-management agreements signed with MCDONALD'S: . in August 1987, for ANTIBES 1 (SEBOL). - on 9 October 1996, for ANTIBES NORD (B&O), • on 18 June 1997, for ANTIBES OUEST (LES PINS). it being observed that it was on 26 June 1997, i.e. eight days later, that Monsieur COLLORAFI had served the summons which brought the matter before the Commercial Court. This period of eight days, far too short to prepare their 10-page summons and have it served, shows the bad faith that drives the claimants. 3º. The three companies having left unpaid, from January 1997 for SEBOL, fees due under the lease-management agreements whose validity is in no way contested, the termination clause stipulated in these agreements was implemented, and for lack of payment, the termination of the lease-management agreements took effect automatically on 2 January 1998. At that date, the three restaurants, which belong to MCDONALD'S FRANCE, bear its trademark and solicit its clientele, should have been returned to MCDONALD'S FRANCE. The claimants remained in them, unduly exploiting the trademark and the clientele of MCDONALD'S FRANCE, which constituted an assault (voie de fait). The enforcement of the judgment could not wait longer than the period set by the Court (10 working days after service), since there was urgency in putting an end to this intolerable situation of usurpation by Monsieur COLLORAFI and his companies, continued since 2 January 1998, of a status of operator lost automatically, on 2 24/06/98 - 19121 4°. The Enforcement Judge of the Regional Court of GRASSE was moreover not mistaken, in refusing the grace period requested. Monsieur COLLORAFI and his companies invoked before her the singular ground that the judgment would not have been accompanied by provisional enforcement, which is obviously in total contradiction with the present referral to the First President of the Paris Court The claimants try to cast discredit on the perfectly regular conditions in which the handing back of the three restaurants was carried out on 10 June: - if the Enforcement Judge delivered her decision on 9 June, on the evening of the hearing itself, it is because the bailiff had made an appointment with Monsieur COLLORAFI for the morning of the 10th, • the summons in summary proceedings for stay of enforcement, before the First President of Aix, served on the 10th at the end of the morning at the request of the claimants, had no justification: article 31 of the decree of 31 July 1992 as amended allows a stay of enforcement of the measures ordered by the Enforcement Judge, but this being a decision dismissing the claim delivered by this judge, there was obviously no ground for referring the matter That is why the summons before this senior judge, served for 18 June, was never entered on the list. 5°. It follows from this recollection that the request for suspension of provisional enforcement is inadmissible as regards the vacating of the premises unduly occupied by the claimants from 2 January to 10 June 1998. Indeed, the acts of enforcement carried out cannot be called into question, as has been ruled: • on 24 September 1997, Court of Cassation 2nd civil chamber (GP, 20 and 15 Dec. 1997, p. 26). • on 11 April 1995, Order of the First President of the Paris Court (Bulletin des Avoués à la Cour, 1995, p. 112), - on 5 January 1990, Order of the First President of the Paris Court (Bulletin des Avoués à la Cour, 1920, p. 25), - on 20 October 1998, Order of the First President of the Paris Court (Bulletin des Avoués à la Cour, 1988, p. 161), ...l... Fax received from: et 1937 67_13 on 2 July 1987, Order of the First President of the Paris Court (Bulletin des Avoués à la Cour. 1987, p. 143), and it is clear that the First President has no power to order reinstatement, which would exceed the powers that the First President holds from article 524 of the N.C.P.C. (see order of 20 October 1988 cited above). 6°. As for the pecuniary sentences, the action of the claimants, no doubt admissible, is also as unfounded as their request for suspension of the decision to return to MCDONALD'S FRANCE the restaurants which belong to it was, in addition to its inadmissibility. On this point too, the claimants contradict the obvious. It is therefore only after having tried to obtain a grace period of 3 months, refused by the Enforcement Judge of the Regional Court of GRASSE, that the claimants come before the First President to have the provisional enforcement suspended, but while lodging an appeal against the order of the Enforcement Judge. To this contradiction in their remedies they add bad faith since they supported their request before the JEX by claiming, in their summons of 8 June, to be in a position to consign 2,000,000 F, and maintained at the GRASSE hearing that they had made this consignation to the CARPA account of their counsel. An attempt at attachment having been made on this account, their counsel replied to the bailiff that he held no sum on behalf of the companies SEBOL, B&O and LES PINS, without replying as regards funds possibly held on behalf of Monsieur COLLORAFI. Then, by submissions of 23 June, the consignation is set aside on the pretext that the return of the funds to their legitimate and sole owner had been obtained. Thus: • either the sum of 2,000,000 F circulates from account to account and the claimants seek to remove it from the proceedings of the respondent, • or the alleged consignation invoked before the Enforcement Judge was an artifice (to say no more) intended to obtain a decision that was refused to them. .i.. 24/86/98-19:21 Ps: ? 7°. Without going back over calculations which fall within the courts on the merits, it suffices to note that the claimants maintain that the sums they were ordered to pay are manifestly excessive (see their submissions, p. 6, 8th - 1st paragraph, 4th and 5th lines). They notably forget to say that, following the return of the three restaurants, the company MCDONALD'S wrote twice to Monsieur COLLORAFI to indicate that it was ready to buy back, at net book value (therefore at a value infinitely higher than the market value), the equipment of the restaurants belonging to the companies claimants, together with the stocks found on 10 June: For SEBOL For B&O For LES PINS 1,164,015 F excl. VAT 2,866,198 F excl. VAT 255,017 F excl. VAT Total 4,285,230 F excl. VAT which will be set off against the debts of the debtor companies. 8°. By speaking of “manifestly excessive sums”, the claimants do not demonstrate the “manifestly excessive consequences” referred to in article 524 that the provisional enforcement would have. orders of the First President of the Paris Court: • 11 April 1996, Registry no. 6246, Bulletin des Avoués, 1996, • 16 Sept. 1994, Bulletin des Avoués, 1995, 29; 23 Oct. 1992, Bulletin des Avoués, 1992, 140, • 13 Oct. 1988, Bulletin des Avoués, 1988, 160), it should be observed that the claimant companies have borne no operating costs since 10 June, and notably no longer any staff costs, the latter having been taken over in full by the new lessee-manager of the businesses, by application of article L. 122-12 of the Labour Code (the staff being pleased to have henceforth a stable employer in a perfectly regular situation, which was not the case of the claimants since 2 January 1998). 47/06228-.39161 Lastly, MCDONALD'S has obviously provided the bank guarantees which the Court had made a condition of provisional enforcement and nobody doubts the solvency of MCDONALD'S FRANCE for the total amount of the sentences pronounced against the claimants. There is therefore no manifestly excessive consequence entailed by the provisional enforcement ordered FOR THESE REASONS Having regard to articles 1315 of the Civil Code, 524 of the New Code of Civil Procedure, Note the inadmissibility of the claim as regards the return made to MCDONALD'S FRANCE of the three restaurants belonging to it, and occupied and operated without right or title by the claimants from 2 January to 10 June 1998 and as regards the reinstatement in the premises of the claimants. Dismiss Monsieur COLLORAFI and the companies SEBOL, B&O and LES PINS from their claim for suspension of the pecuniary sentences pronounced against them by the judgment of the Commercial Court of Paris of 18 May 1998. Rule that this judgment shall produce its full effects. Order jointly and severally Monsieur COLLORAFI and the three companies SEBOL, B&O and LES PINS to pay to the S.A. MCDONALD'S FRANCE a sum of 30,000 F under article 700 of the N.C.P.C. Order them jointly and severally to pay all costs. WITHOUT PREJUDICE TO ALL RIGHTS T-т.-.