Chief Judge Cynthia A. Norton.
Plaintiff Global Control Systems, Inc. employed Debtor/Defendant Derek Luebbert. The terms of the employment required Mr. Luebbert to neither solicit Global's customers, nor compete with Global's business while employed, and for three years and within a certain radius of Global's office thereafter. Mr. Luebbert, while employed at Global, violated the agreement by soliciting and receiving work from a Global customer. After Mr. Luebbert resigned to pursue the work, Global threatened suit, and Mr. Luebbert and Global reached a settlement. The settlement, as later amended, contemplated that Mr. Luebbert would finish the work he previously solicited, and that Global and Mr. Luebbert would split the profits 50/50 in the form of two-party checks from the customer. The agreement provided that after the work was complete, the covenant not to compete would resume. Mr. Luebbert initially honored the agreement, but as the work continued to expand and dragged on, he became frustrated with what he saw as an unfair agreement. So, he secretly caused the customer to stop issuing two-party checks and he kept Global's 50% share. After Global found out and sued, a jury rejected Mr. Luebbert's arguments that he had done nothing wrong, and a United States District Court awarded Global more than $650,000 in damages, representing Global's 50% share, plus interest and attorney's fees. Mr. Luebbert nonetheless contends that he never intended to harm Global even though he breached the settlement agreement. The issue posed here is thus whether this debt is for "willful and malicious" injury to Global, such that the debt should be excepted from Mr. Luebbert's chapter 7 bankruptcy discharge under 11 U.S.C. § 523(a)(6).
Although this is an exceedingly close case, the court, having given it careful and due consideration, rules in favor of Global, based on the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52, made applicable here by Federal Rule of Bankruptcy Procedure 7052.
Mr. Luebbert filed a chapter 7 bankruptcy case on September 21, 2016, shortly after a jury empaneled by the United States District Court for the Western District of Missouri found in favor of Global and the court entered a judgment for damages.
This court has jurisdiction over this matter under 28 U.S.C. §§ 1334 and § 157(a). These matters are statutorily and constitutionally core under 28 U.S.C. § 157(b)(2)(A), (I), & (O). This court therefore has the authority to hear these matters and make a final determination. No party has contested jurisdiction or the court's authority to make a final determination.
At the threshold, the court must address a standing argument. Specifically, Mr. Luebbert challenges Global's standing to bring this adversary proceeding, citing Mo. Rev. Stat. § 351.574.1. This statute provides that "[a] foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority." Mr. Luebbert asserts that although Global is a Kansas corporation in good standing in Kansas, Global has allowed its registration as a foreign corporation in Missouri to lapse, such that it cannot maintain this suit. The court disagrees.
On its face, § 351.574.1 does not apply because this bankruptcy court is not a "court in this state" but a unit of the United States District Court for this district. 28 U.S.C. § 151. Even the case cited by Mr. Luebbert during oral arguments at trial, Joe Hand Promotions, Inc. v. Dilseacht, LLC, 2016 WL 7491860 (E.D. Mo. Dec. 30, 2016), questioned whether it was constitutional to interpret § 351.574.1 to limit foreign corporations' access to the federal courts within this state by requiring them to first obtain authorization from the State of Missouri. Id. at *2. Joe Hand certainly does not require a foreign corporation in good standing in its own state of incorporation to first obtain a certificate of authority from the State of Missouri before filing a dischargeability complaint in the federal bankruptcy court. The other case Mr. Luebbert cites, Star-Chronicle Pub. Co. v. United Press Ass'ns, 204 F. 217 (8th Cir. 1913), is equally unavailing. Finally, the court would note that if Global did not have standing to sue in Missouri federal courts, the United States District Court would not have issued its judgment in Global's favor, since all courts have a duty to determine standing as a matter of assessing their own jurisdiction to do so.
The court concludes as a matter of law that Global has standing to bring this action.
This long and factually detailed story begins more than ten years ago, when Mr. Luebbert first chose to work for Global, and concludes in this bankruptcy proceeding.
Mr. Luebbert received a Bachelor of Science in Electronics Engineering Technology
In 2006, Jim Schneider, one of Mr. Luebbert's superiors at Indicon, left Indicon to become Global's vice president. Mr. Schneider in turn recruited Mr. Luebbert to join Global. At the inception of his employment at Global in August 2006, Mr. Luebbert signed an employment agreement (the "Employment Agreement"). Among other provisions, the Employment Agreement contained a three-year covenant not to compete with Global within a 100-mile radius and a covenant prohibiting Mr. Luebbert from soliciting business from Global's customers.
Global's president, Manuel David, credibly testified that he explained the provisions of the Employment Agreement, including the noncompete and nonsolicitation provisions, before asking Mr. Luebbert to sign it. Mr. Luebbert testified that when he later decided to leave Global, he did not know he was subject to noncompete and nonsolicitation covenants. The court believes Mr. David's credible testimony that he explained the terms of the covenants to Mr. Luebbert, but likewise believes it is probable that Mr. Luebbert, a relatively young person at the time, either forgot about or did not understand the significance of what he was signing.
As a Global employee, Mr. Luebbert was tasked with developing Global's relationship with ATK. One of Mr. Luebbert's projects was working on ATK's "green ammo" project.
At the same time, however, Mr. Luebbert became increasingly dissatisfied with his job at Global, in part because he felt he was underpaid in comparison to the hourly rate Global was billing ATK.
About a year after ATK awarded Global a contract on the green ammo project, Mr. Luebbert decided to start his own business and through that business to make a bid for future ATK work. To that end, in late 2009 he formed a single member limited liability company, Atlas Industrial Solutions, LLC ("Atlas"), and filed Articles of Organization with the Missouri Secretary of State.
A month later, on May 26, 2010, unaware that Mr. Luebbert had made his own bid for ATK work, Jim Schneider emailed Mr. Luebbert to find out if ATK was "going to renew" its existing purchase order with Global.
After receiving the successful bid, Mr. Luebbert promptly resigned from Global. His resignation letter to Mr. David stated that he had "decided to pursue alternate career opportunities," effective the next day.
Shortly after Mr. Luebbert resigned, Mr. David learned about PO D95 and Mr. Luebbert's new relationship with ATK, and things turned ugly between them. Mr. Luebbert testified that he was shocked and surprised by Mr. David's harsh reaction because, he testified, the relationship between ATK and Global (and Jim Schneider, in particular) had deteriorated to the point where ATK was dis-inclined to renew any work with Global so long as Mr. Schneider was the liaison, but instead wanted Mr. Luebbert to take the lead on any projects. Mr. David, on the other hand, viewed Mr. Luebbert's actions as a blatant and underhanded violation of his Employment Agreement.
Global then threatened legal action. Global informed Mr. Luebbert that it intended to enforce the covenants in the Employment Agreement. Global also demanded that Mr. Luebbert immediately return Global's computers and other equipment and to not share any of Global's confidential information. Mr. Luebbert did finally turn over Global's computers, but
In early June 2010, Mr. David emailed his other Global employees to advise them that Mr. Luebbert was no longer employed at Global. Mr. David told his employees that Global was in the process of collecting all Global's property from Mr. Luebbert, including hardware, software, and intellectual property. Mr. David also warned Global's employees not to contact Mr. Luebbert.
The next day, Mr. David asked a project engineer at ATK, John Wopata, to remove Mr. Luebbert from project-update emails because Mr. Luebbert no longer worked at Global.
Unfortunately for all involved, however, Mr. Luebbert had become nearly indispensable to the green ammo project, which project was in turn apparently considered extremely important to the nation's defense. Mr. David believed he had only two choices, both of which were unappealing: (1) either enforce the noncompete through expensive litigation but irreparably damage the project and lose ATK as a customer, or (2) suspend enforcement of the noncompete to allow Mr. Luebbert to complete PO D95, giving Global time to try to salvage its relationship with ATK, but setting a bad example for the remaining employees. Mr. David reluctantly chose what he saw as the lesser of two evils, to allow the work to continue. Mr. Luebbert for his part was not happy, either. But since all believed that PO D95 would be finished in six months and that Mr. Luebbert's involvement was necessary to finish the project and not harm ATK, in lieu of litigation Global and Mr. Luebbert agreed to settle.
With the assistance of their respective attorneys, Global and Mr. Luebbert entered into a settlement agreement dated June 17, 2010 (the "Settlement Agreement").
The Settlement Agreement (again) terminated Mr. Luebbert's employment with
Afterwards, the parties decided that in furtherance of the Settlement Agreement, ATK would issue two-party checks made payable to both Atlas and Global, and in mid-July 2010, Mr. Luebbert emailed an ATK employee to confirm that ATK would commence issuing the two-party checks.
Later that month, Mr. Luebbert emailed Mr. David, with a copy to Mr. Luebbert's attorney, to let him know that ATK had inquired about an addition to PO D95. Mr. Luebbert confirmed to Mr. David that he told ATK that he could not talk to ATK, but that ATK needed to go through Global on additions to PO D95.
ATK began issuing the two-party checks to Atlas and Global on September 15, 2010.
At the end of the six months, in November 2010, ATK revised PO D95 to add an additional $30,000 to the contract.
The addition to PO D95 resulted in the parties' execution of an amendment to the Settlement Agreement on January 28, 2011 (the "Amendment"), to continue the 50/50 split with respect to the addition and any other work for ATK:
(emphasis added).
The Amendment also expressly required continuance of the two-party checks and for Mr. Luebbert to keep Global informed regarding purchase orders, additional work requests, invoices, or any other accounting related activities.
Mr. Luebbert continued to work on PO D95 as amended. Several months later, in April 2011, Mr. Luebbert advised Mr. David that another Global client, Chevron, had called him about doing some work, and that he had told Chevron it needed to contact Global.
In June 2011, ATK issued checks for payment on the addition to PO D95 showing both Atlas and Global as co-payees, and the parties continued to split any ATK checks 50/50.
In mid-November 2012, ATK issued a new purchase order to Atlas for work in the amount of $7,750, PO D50949 ("PO D49").
During this time frame, however, Mr. Luebbert was again becoming increasingly dissatisfied with the arrangement, in part because it had continued for more than a year longer than the parties anticipated and because he continued to believe that it was unfair. Two weeks after receiving the new PO, on November 28, 2012, Mr. Luebbert sent an email to Mr. David asking to change the 50/50 split.
Mr. Luebbert continued to work on both PO D95 and D49 notwithstanding Global's opposition to changing the settlement terms. Two months after proposing the 80% split, on February 5, 2013, Mr. Luebbert contacted an employment attorney, a different attorney from the one who had represented him in negotiating the Settlement Agreement and Amendment.
In sum, in an email to his new counsel, Mr. Luebbert outlined his version of the history of his relationship with Indicon, Global, and ATK, and described what led to the two settlements.
According to the attorney's testimony at trial, Mr. Luebbert met with him shortly after Mr. Luebbert first contacted him by email, although no evidence established exactly when their meeting occurred. In any event, the attorney advised Mr. Luebbert at that meeting that it was his opinion that the Settlement Agreement and Amendment related only to work done on PO D95 and that, when PO D95 was finished, Mr. Luebbert was no longer obligated to split any fees with Global. The attorney also interpreted the springing noncompete in those documents to be unenforceable because, in his view, the noncompete had no end.
The attorney advised Mr. Luebbert that, to be fair to Global, he should write Mr. David to make sure he understood that the situation was untenable for Mr. Luebbert. He further advised that Mr. Luebbert should continue the two-party checks until he wrote to Mr. David and they had finished PO D95. To the extent Mr. Luebbert worked on anything other than PO D95, however, it was the attorney's opinion that
Later that month, on February 21, 2013, Atlas issued two invoices to ATK, Invoice No. 53 for $54,232.99, and Invoice No. 54 for $44,625.49.
The following day, Mr. Luebbert emailed Mr. David saying he was mailing an ATK check that day.
The next day, February 26, Mr. Luebbert sent Mr. David another email, referencing possible additional ATK work and the possibility of Atlas hiring Global as a subcontractor:
Mr. David responded:
At about this time, Mr. Luebbert began the process of trying to stop the two-party checks on non-PO D95 invoices so that only Atlas would receive the checks. Initially, after Mr. Luebbert asked ATK to remove Global as a co-payee on the non-PO D95 invoices, ATK did so, but continued to reference Global in the memo line on the checks. Mr. Luebbert asked ATK to
A day after confirming that ATK would issue all future checks to Atlas only, Mr. Luebbert emailed Mr. David to inform him that that he no longer intended to honor the settlement on its current terms. This was two months after Mr. Luebbert first contacted his new counsel and had "shortly thereafter" received the advice to inform Mr. David. In a somewhat rambling email to Mr. David dated April 5, 2013,
But instead of definitively terminating the agreement, as his attorney testified he had advised, Mr. Luebbert instead proposed a 90/10 split of profits and alternatives to the two-party check payment method. Mr. Luebbert warned Mr. David, however, that unless "a mutually beneficial and practical arrangement" was reached, he, Mr. Luebbert, would no longer work at ATK "under the current arrangement." Somewhat contradictorily, Mr. Luebbert concluded by stating: "Going forward I will continue to support ATK as need and ability agrees [sic] but will have no relationship with [Global]."
Mr. David apparently found this email as confusing as the court did, since a few days later, Global's attorney sent a letter to Mr. Luebbert and Atlas. The letter essentially said that "it sounded as though" Mr. Luebbert intended to breach the Settlement Agreement and Amendment, and reminded Mr. Luebbert of the springing three-year noncompete, which the attorney said Global intended to enforce.
The following day, Mr. Luebbert received another check from ATK referencing Global in the memo line, notwithstanding ATK's earlier assurances that it had corrected for the "name change." Mr. Luebbert crossed through the reference to Global on the check and deposited it without splitting any proceeds with Global.
On May 6, 2013, now some three years after PO D95 was first issued, Global's attorney sent a follow-up email to Mr.
In addition to the new POs being directed only to Atlas, ATK continued to issue change orders to PO D95 throughout this period, up until August 31, 2013.
On June 28, 2013, Global filed a petition against Mr. Luebbert and Atlas in the Circuit Court of Jackson County, Missouri for breach of the Settlement Agreement and the Amendment and enforcement of the covenants.
In December 2013, again, while the litigation was pending, Mr. Luebbert made a proposal to ATK on behalf of Midwest Controls, LLC to provide engineering services.
In the end, Mr. Luebbert acquired five additional purchase orders through Atlas from ATK for which Global was not paid:
Global later added ATK and Midwest Controls as co-defendants and in July 2014, the case was removed to the United States District Court for the Western District of Missouri.
The jury rejected Mr. Luebbert's arguments and defenses. Following a trial, on April 4, 2016, the jury returned a verdict in favor of Global on its breach of contract claim.
Additional findings of fact will be made below as noted.
Section 523(a)(6) provides that a "discharge under section 727 ... of this title does not discharge an individual debtor from any debt for willful and malicious injury by the debtor to another entity or to the property of another entity." To establish that a debt is nondischargeable under § 523(a)(6), the plaintiff must prove by a preponderance of the evidence two elements: (1) the debt is for "willful injury," and (2) the debt is for "malicious injury." In re Patch, 526 F.3d 1176, 1180 (8th Cir. 2008).
The terms "willful" and "malicious" are two distinct elements, each of which must be proven to establish an exception to discharge. Fischer v. Scarborough (In re Scarborough), 171 F.3d 638, 640 (8th Cir. 1999); In re Long, 774 F.2d 875, 880-81
With respect to the first element, the Supreme Court made clear in Geiger, a case originating in the Eighth Circuit, that the word "willful," as used in § 523(a)(6), modifies the word "injury." Nondischargeability under § 523(a)(6) thus requires a "deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (emphasis in original). Willfulness, in this context, "is subjective." Roussel v. Clear Sky Properties, LLC., 829 F.3d 1043, 1048 (8th Cir. 2016).
The second requirement for non-dischargeability under § 523(a)(6) — that the injury is "malicious" — requires conduct that is "headstrong and knowing" and "targeted at the creditor ... at least in the sense that the conduct is certain or almost certain to cause financial harm." Roussel, 829 F.3d at 1047 (citing In re Long, 774 F.2d at 881). Conduct that is merely negligent or reckless is insufficient for nondischargeability under § 523(a)(6). Geiger, 523 U.S. at 64, 118 S.Ct. 974. The court "may consider both direct evidence of Debtor's subjective state of mind and evidence of the surrounding objective circumstances, and then may make appropriate references as to whether Debtor harbored the proscribed intent." In re Jeffries, 378 B.R. 248, 256 (Bankr. W.D. Mo. 2007) (citing Long, 774 F.2d at 881).
As with any exception to discharge, nondischargeability under § 523(a)(6) is to be strictly construed in accord with the fresh start aim of the Bankruptcy Code. Geiger v. Kawaauhau (In re Geiger), 113 F.3d 848, 853 (8th Cir. 1997) (en banc), aff'd sub nom., Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). See also In re West, 2017 WL 746250 at *3 (Bankr. W.D. Mo. Feb. 24, 2017).
Before reaching the two elements, the court is again faced with a threshold issue: whether Global suffered an injury.
At trial, Mr. Luebbert initially quarreled with the notion that he had injured Global. He conceded in some later testimony that depriving a company of $300,000 in income it was entitled to could constitute an injury. Yet he persisted in his belief that Global was not injured because he had fulfilled his obligation to Global and was not required to share revenues on non-D95 purchase orders (even though he admitted he had inadvertently kept some a part of some PO D95 profits he should have split with Global).
This argument is foreclosed by the judgment debt. When the District Court entered judgment of $302,632.31 in actual damages based on the jury verdict,
Mr. Luebbert argues that since he only breached a contract without ever subjectively intending to harm Global, his breach of the Settlement Agreement and Amendment cannot as a matter of law be "willful." The court disagrees.
First, it is true that, as a general rule, debts resulting from breach of contract, even debts resulting from intentional breach of contract such as Mr. Luebbert's, are not excepted from discharge under § 523(a)(6). See, e.g., In re Iberg, 395 B.R. 83 (Bankr. E.D. Ark. 2008); In re Johnson, Adv. No. 07-3115, 2007 WL 5065545, at *3 (Bankr. D. Minn. Nov. 14, 2007) (citing In re Glatt, 315 B.R. 501, 511 (Bankr. D.N.D. 2004)); In re McDowell, 299 B.R. 552, 555 (Bankr. N.D. Iowa 2003) ("Simple breach of contract ... is not included in the limited exceptions to discharge in bankruptcy."). Otherwise, the vast majority of debts would be nondischargeable.
But Mr. Luebbert's "empty head-pure heart" legal defense is not supported by law under the facts and circumstances here. As the Eighth Circuit said in Patch, the scope of "willful injury" is not limited to the circumstances in which the debtor desires to bring about the consequences of the conduct. It includes conduct in which "the debtor knows that the consequences are certain, or substantially certain, to result from his conduct" because in those cases, "the debtor is treated as if he had, in fact, desired to produce those consequences." Patch, 526 F.3d at 1180-81, citing Geiger, 113 F.3d at 852.
And this is not a simple breach of contract case. Mr. Luebbert agreed to split profits 50/50 with Global. By secretly instructing ATK to remove Global's name from checks that were subject to the settlement, he in essence converted funds belonging to Global, and kept them for himself. And by so instructing ATK, he knew it was certain that Global would be deprived of its agreed-upon profit. Whether the conduct echoes of conversion
Second, and more importantly, the court does not believe Mr. Luebbert's testimony that he did not intend to harm Global.
There are several things that are troubling about Mr. Luebbert's actions while he was still employed at Global. While employed, he set up a company in secret, used his knowledge of the customer and Global's bid numbers to make a successful bid, and even used Global's own form to do so. He was not straightforward in his resignation letter and he allegedly kept some of Global's confidential customer information and wiped computers that could have revealed what he planned to do. Although Mr. Luebbert testified that these actions were all innocent and that he never intended to harm Global, he did not offer any credible reason for these secretive and evasive actions, all of which seem designed to hide the fact he was intending to go forward and take away Global's customer.
Nonetheless, the court is willing to give Mr. Luebbert the benefit of the doubt on the first breach, because he honored, albeit grudgingly, the first Settlement Agreement. Again, the real issue is whether his breach of the Amendment was "willful" in the sense of either subjectively intending to harm Global or being "certain or substantially certain" that his actions would result in harm. And again, Mr. Luebbert's actions and less-than-credible testimony speak for themselves.
To begin with, Mr. Luebbert was not truthful with his own client, ATK. He told ATK that the change in the two-party checks was due to a mere "name change" — not because he had decided to breach the settlements with Global. He was likewise not truthful in the emails he sent to Mr. David, suggesting that he was still working in Global's bests interests when in fact he had decided to pursue POs on his own and at a later point was hiding his actions through Midwest Controls, after he had been sued. He crossed out Global's name on checks and used a PO Box such that Global was unable to find him. His actions in ceasing work through Atlas and instead working for ATK through Midwest Controls — despite having been advised by a lawyer that taking on new work for ATK was not a problem — all show that he knew he was violating the settlements and that he intended to conceal his actions.
In sum, Mr. Luebbert's testimony that in none of these actions did he intend to harm Global is simply not credible to this court. The court therefore finds and concludes that Global has met it burden of proof by establishing by a preponderance of the evidence that Mr. Luebbert's conduct in breaching the Settlement Agreement and Amendment was willful.
Notwithstanding that the Eighth Circuit has said that willful and malicious are distinct elements, the Eighth Circuit in Long used essentially the same Restatement test for the "malice" element that it later used for "willful" in Geiger — namely, that the expected harm must be "certain or substantially certain" to occur. As Judge Dow explained in In re Sullivan: "[I]n order for a debt to be non-dischargeable pursuant to § 523(a)(6), the debtor must have intended the injury to the creditor (willful) and intended the harm to the creditor (malicious)." 337 B.R. 210, 213 (Bankr.
However, the Eighth Circuit explained, with regard to malice:
In re Long, 774 F.2d at 881.
Thus, "[i]f the debtor's conduct was inexcusable and resulted in an inevitable injury to the plaintiff, it is malicious." In re Jeffries, 378 B.R. at 256 (citing Patch, 356 B.R. at 458). Other courts have similarly required aggravating circumstances. See, e.g., In re Khafaga, 419 B.R. 539, 550 (Bankr. E.D. N.Y. 2009) ("Under the law in [the Second Circuit], the element of malice may be found ... upon a finding of aggravated, socially reprehensible conduct sufficient to justify an imputation of malice to the debtor.") (citation omitted). Courts hold that whether circumstances are sufficiently aggravating to support a finding of malice is a fact-specific determination made on a case-by-case basis, looking at the totality of the circumstances. In re Khafaga, 419 B.R. at 550. "[I]t is not necessary that the Plaintiff prove that there is subjective ill will." In re Jeffries, 378 B.R. at 256.
As if often the case,
As a final matter, Mr. Luebbert argues that he could not have intended to harm Global because he relied on the advice of his counsel. The court, as a matter of fact and law, disagrees.
"`Advice of counsel' is not really a `defense' in a § 523(a)(6) proceeding in the sense of being an affirmative defense. Rather, it is a species of evidence that is offered to negate the requisite element of intent under § 523(a)(6)." In re Gotwald, 488 B.R. 854, 872 (Bankr. E.D. Pa. 2013). "[A]dvice of counsel is a factor to be considered," when intent is an issue. In re Patterson, 70 B.R. 124, 128 n.9 (Bankr. W.D. Mo. 1986). "Mistaken reliance on an attorney's advice will excuse acts of fraudulent intent if the advice was reasonable and the attorney was aware of all relevant facts." In re Thomas, No. 05-23160-7, 2006 WL 2850353, at *5 (Bankr. W.D. Mo. Sept. 28, 2006) (citing Floret, L.L.C. v. Sendecky (In re Sendecky), 283 B.R. 760,
As stated, Mr. Luebbert consulted his new employment attorney in early February 2013. That attorney candidly and unequivocally testified at trial that he advised Mr. Luebbert at that time that his obligation to Global was fulfilled when PO D95 was finished, that ATK did not have to issue two-party checks on POs other than PO D95, and that the springing non-compete was unenforceable. The attorney testified he still interprets the documents in that manner and believes Mr. Luebbert had fulfilled is duties to Global when PO D95 was completed, despite the jury verdict. This would seem to mitigate the willfulness element.
However, Mr. Luebbert's own actions belie his assertion that he relied on the attorney's advice, particularly because he ran purchase orders and payments through Midwest Controls, rather than Atlas or some other company he could have formed, and after he had already been sued. There can be no question, based on that, that Mr. Luebbert understood that his clandestine relationship with ATK was a violation of his duties owed to Global. The court finds that Mr. Luebbert's reliance on counsel's advice was not reasonable or in good faith and that his conduct was willful under § 523(a)(6).
The court finds and concludes, based on the foregoing, that Global met its burden of proving that its judgment is a debt for willful and malicious injury by Mr. Luebbert. This includes the award of attorney fees and interest. In re Hunter, 771 F.2d 1126, 1131 (8th Cir. 1985) ("Ancillary obligations such as attorneys' fees and interest may attach to the primary debt....").
A separate order will issue.
