Boca Aviation was a fixed base operator at Boca Raton Airport. Boca Aviation had a long-term lease on 45 acres, and was the sole provider of aviation services, including fuel, at Boca Airport.
An additional 15-acre lot became available, and Boca Aviation won the right to build additional hangars on the lot. The FAA subsequently suggested that the local airport authority develop the lot, and Boca Aviation agreed to give up its right to build the additional hangers, said the plaintiff, in exchange for the airport authority's commitment to allow Boca Aviation to continue as the airport's sole fuel supplier.
However, the lease amendments formalizing this agreement between the airport authority and Boca Aviation did not secure Boca's claimed rights, but instead allowed the airport authority to assign the development rights to a third party, and, after a change in membership, the airport authority did bring in a competing fixed base operator.
Boca Aviation subsequently asserted breach of fiduciary duty and professional negligence claims against Proskauer, and sought to recover damages in excess of $60M for lost profits.
According to defense attorney Mark Heise, of Boies Schiller, "from 1984 when Mr. Greenberg had Boca Aviation at the airport, until 1996, he had a monopoly on the sale of fuel. And as we talked about in voir dire, sometimes it's ok, and sometimes it's not. From 1984 to 1996, when he had the only gas station at the airport, it was completely fine. But things changed in 1996. In 1996, a competitor wanted to open up and...Boca Aviation did everything they could to prevent competition at the airport, to keep out the other gas station. And when you do that, it's against federal aviation law."
According to the defense, the Proskauer Rose attorney clearly stated in writing that the FAA would not accept a proposed restriction on the airport authority's ability to use the land, and that their client's interest therefore was not fully protected. What in fact happened, said Mr. Heise, was that membership changes made the airport authority less friendly to Boca Aviation, and the new authority felt compelled to authorize a competing provider.
"Federal aviation law prohibits exactly what they planned," said Mr. Heise. "Mr. Greenberg could not get this written guaranty...Lawyers are not magicians, and as a result...we are going to ask you to deliver a verdict that says Proskauer is not responsible for this."