Platinum Funding Group Announces Landmark Legal Decision

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Decision by Judge Shira A. Scheindlin of the Southern District of New York in Dessert Beauty, Inc. v. Platinum Funding Corp concerning the shortfall fees in a factoring agreement carries significant implications for factoring and asset-based lending sectors.

Shortfall Fees in Factoring Pact: Alternative Performance?

Platinum Funding Group, a leading factoring company, announced a recent decision by Judge Shira A. Scheindlin of the Southern District of New York in Dessert Beauty, Inc. v. Platinum Funding Corp--a landmark case with significant implications for factoring and asset-based lending sectors. The Southern District adopted the arguments raised by Platinum Funding Corp., upheld the shortfall fees in the factoring agreement of Platinum Funding Corp. and classified such fees as an alternative performance method.

An analysis of the decision by Platinum Funding Group was profiled in a New York Law Journal article titled "Shortfall Fees in Factoring Pact: Alternative Performance?" in the Outside Counsel column of the publication's January 11, 2008 issue.

Dessert Beauty, Inc. was a distributor of Jessica Simpson's line of edible cosmetics. The company entered into a factoring agreement with Platinum Funding Corp., which provided that Dessert Beauty, Inc. sell a minimum amount of accounts receivable to Platinum Funding Corp. during the course of a defined term. When Dessert Beauty did not deliver the agreed upon minimum, Platinum imposed a shortfall fee and withheld funds in the amount of such fees. Dessert Beauty, Inc. commenced an action, claiming, among other things, that the contractual provision providing for the shortfall fees in question constituted either an unenforceable liquidated damages clause or served as a penalty, and as such, was unenforceable.

The Court ruled that the shortfall fee charged by Platinum Funding Corp. was enforceable pursuant to an alternative fee structure and rejected the arguments that the fee in question constituted either an unenforceable penalty or an unreasonable liquidated damages clause. The decision thus reinforced the rights of the parties to freely chart the method of performance in the event of a certain potential contingency, which may not rise to the level of a contractual breach.

The above legal decision carries significant implications to factors, secured lenders and the broader financial community as it assures protection of the more risky investments in the event of a client's non-performance. The ruling gains additional weight in the current financial environment as tighter credit markets bring an increased number of companies to seek funding with non-traditional lenders and factors.

"Companies looking to sell their receivables should be well aware of this decision when negotiating the terms of a prospective factoring arrangement," said Shlomit Ophir-Harel, Chief General Counsel of Platinum Funding Group. "Once committing to a minimum sales amount, the factored company must carefully calculate its steps and realize that as an alternative performance method, such commitment is enforceable and carries much weight."

"This decision is a milestone event for Platinum Funding Group and other factoring companies," added Eyal Levy, President and CEO of Platinum. "We are happy to be the first in the industry to set the precedent."

Esther Trakinski, Esq. served as outside counsel to the company in this case.

Note to editors: Parts of the article have been reprinted in this press release with permission from the January 11, 2008 edition of the New York Law Journal. © 2008 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited.

Anna Belkina

About Platinum Funding Group:
Platinum Funding Group, a leading factoring company, provides clients with accounts receivable funding, letters of credit, bridge funding, and accounts receivable management. Established in 1992, the company has been consistently assisting companies with annual sales revenue between $1 million and $150 million. Platinum possesses the financial resources to serve the needs of clients across more than 30 industries. The company holds a leading position in factoring services, issuing same day advances on accounts receivable to start-ups, fast growing firms, and companies in Chapter 11. Platinum Funding Group is headquartered in New York City and has regional offices throughout the U.S.


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