" Smith v. Saulsbury, 286 Ga. App. 322, 333, 649 S.E.2d 344, 347 (2007) (quoting O.C.G.A. § 13-8-1 ). "[F]or the purpose or object of a contract to be illegal, thereby making the contract void, the contract must require a violation of law when performed." Hays v. Adam, 512 F. Supp. 2d 1330, 1342 (N.D. Ga. 2007) (citing Shannondoah, Inc. v. Smith, 140 Ga. App. 200, 202, 230 S.E.2d 351, 352 (1976) ). A contract that contemplates the sale of unregistered securities is void "[b]ecause the act of performance under the contract[ ] necessarily result[s] in violation of ... securities laws."

Prior to trial, plaintiffs moved for partial summary judgment, asserting that defendants should be collaterally estopped from litigating the issue of whether the MBA investments were securities subject to federal and state regulation because the issue had already been litigated in a federal district court case involving defendants. The trial court granted plaintiffs' motion on 1 December 2008. Plaintiffs subsequently took a voluntary dismissal of all their claims against all defendants except Mr. Rainey. See Hays v. Adams, 512 F. Supp. 2d 1330 (N.D. Ga. 2007). Trial began on 1 December 2008. Defendant moved for directed verdict at the close of plaintiffs' evidence and the trial court directed verdicts in favor of defendant on plaintiffs' claims for the sale of securities by an unregistered salesperson or dealer, breach of fiduciary duty, fraudulent concealment, conversion, and equitable estoppel.

In contrast, equity receiver or trustee of an entity cannot pursue claims where the alleged harm was suffered only by third-party investors in that entity. See Williams v. California 1st Bank, 859 F.2d 664, 666 (9th Cir.1988); cf. Hays v. Adam, 512 F.Supp.2d 1330, 1341 (N.D.Ga.2007) (noting that third party investors may nonetheless indirectly benefit from the receiver's action as creditors of the receivership). As the Ninth Circuit has noted, “[a]lthough the line between ‘claims of the debtor,’ which a trustee [or equity receiver] has statutory authority to assert, and ‘claims of creditors,’ which [Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972) ] bars the trustee from pursuing, is not always clear, the focus of the inquiry is on whether the Trustee is seeking to redress injuries to the debtor itself caused by the defendants' alleged conduct.”

See Hays v. Adam, 512 F.Supp.2d 1330, 1338 (N.D.Ga. 2007) (concluding that although contract between promoter and investors permitted investors to independently acquire advertisers for digital billboards, “the economic reality is that the purchasers exercised little or no control over the billboard” and all investors leased billboards back to promoter); D. 48-1 at 3 (reporting that NFT owners “can't currently withdraw [their] NFTs from DraftKings to store on a crypto wallet and trade [them] elsewhere”). Indeed, DraftKings retained sole discretion to prohibit transfers of NFTs to personal wallets.

"[F]or the purpose or object of a contract to be illegal, thereby making the contract void, the contract must require a violation of law when performed." Hays v. Adam, 512 F.Supp.2d 1330, 1342 (N.D.Ga. 2007). This Court concurs with the Bankruptcy Court and finds the Blue Wave Agreement to be unlawful and unenforceable as a matter of law. Summary Judgment will therefore be granted on Count 74.

See, e.g., Velazquez-Perez v. Developers Diversified Realty Corp., 272 F.R.D. 310, 312 (D. P.R. 2011) (holding that emails and letters sent to defendant were insufficient to satisfy the meet-and-confer requirement where plaintiff never agreed to meet with defendant to resolve discovery issues); Robinson v. Napolitano, No. CIV. 08-084, 2009 WL 1586959, at *3 (D. S.D. June 4, 2009) (finding that a letter outlining the reasons that one party believed that the opposing party's discovery responses were insufficient did not satisfy the meet-and-confer requirement); Kemp v. Harris, 263 F.R.D. 293, 297 (D. Md. 2009) (holding that a single e-mail from defense counsel to plaintiff's counsel was insufficient to satisfy the meet-and-confer requirement when "[d]efense counsel disregarded Plaintiffs' counsel's suggestion that the parties schedule a conference call to address the discovery schedule") (alteration supplied); Hays v. Adam, 512 F. Supp. 2d 1330, 1334 (N.D. Ga. 2007) (holding that a single letter to opposing counsel "does not constitute a sufficient effort to resolve the issue outside of court pursuant to Rule 37(a)" and a local rule); Williams v. Board of County Commissioners of Unified Government of Wyandotte County and Kansas City, Kansas, 192 F.R.D. 698, 699 (D. Kan. 2000) (specifying that "sending unanswered correspondence to opposing counsel demanding discovery be produced by a specific deadline" does not satisfy the meet-and-confer requirement); Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999) ("[P]arties do not satisfy the conference requirements simply by requesting or demanding compliance with the requests for discovery.") (alteration supplied). While Rule 37(a)(1) does not always mandate an in-person conference, it does require a two-way conversation, during which the discovery disputes are meaningfully discussed in an honest, good-faith attempt to resolve the disputes.

”); Scholes, 56 F.3d at 753 (“[A] receiver does not have standing to sue on behalf of the creditors of the entity in receivership.”); Hays v. Adam, 512 F.Supp.2d 1330, 1341 (N.D.Ga.2007) (“An equity receiver may sue only to redress injuries to the entity in receivership.... [I]t is clear that the receiver cannot bring claims directly on behalf of third-parties, [even though] those parties may nonetheless indirectly benefit from the receiver's actions as creditors of the receivership.”). Presumably, this is why Kelley sued the College in his capacity as receiver and sought “to recover [the] transfers and preserve the property of the Receivership Individuals and the Family Foundation.” (Am. Compl. ¶ 10 (emphasis added).)

Furthermore, this court has indicated that the receiver is an appropriate party to receive the disgorged commissions. See Cobalt Multifamily Investors I, LLC v. Arden, 2010 WL 3791040, *3 (S.D.N.Y. Sept. 9, 2010) ("The salespeople are plainly not entitled to retain such commission payments, and the receiver appears to be a proper person to pursue those funds on behalf of the Cobalt estate, which in turn will presumably be held responsible for the ultimate reimbursement of the shareholders."), adopted, 2010 WL 3790915 (S.D.N.Y. Sept. 28, 2010); see also Hays v. Adam, 512 F. Supp.2d 1330, 1343 (N.D.Ga. 2007) ("[I]f a receiver can recover Ponzi scheme profits from investors who have done nothing wrong, he would also be entitled to recover Ponzi scheme profits held by sales agents like the defendants, who illegally sold unregistered securities, and without whose efforts the scheme could not have occurred.").

In contrast, an equity receiver or trustee of an entity cannot pursue claims where the alleged harm was suffered only by third-party investors in that entity. See Williams v. California 1st Bank, 859 F.2d 664, 666 (9th Cir. 1988); cf. Hays v. Adam, 512 F. Supp. 2d 1330, 1341 (N.D. Ga. 2007) (noting that third party investors may nonetheless indirectly benefit from the receiver's action as creditors of the receivership). As the Ninth Circuit has noted, "[a]lthough the line between 'claims of the debtor,' which a trustee [or equity receiver] has statutory authority to assert, and 'claims of creditors,' which [Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972)] bars the trustee from pursuing, is not always clear, the focus of the inquiry is on whether the Trustee is seeking to redress injuries to the debtor itself caused by the defendants' alleged conduct."

Furthermore, this court has indicated that the receiver is an appropriate party to receive the disgorged commissions. SeeCobalt MultiFamily Investors I, LLC v. Lisa Arden, 2010 WL 3791040, *3 (S.D.N.Y. Sept. 9, 2010) (“The salespeople are plainly not entitled to retain such commission payments, and the receiver appears to be a proper person to pursue those funds on behalf of the Cobalt estate, which in turn will presumably be held responsible for the ultimate reimbursement of the shareholders”), adopted2010 WL 3790915 (S.D.N.Y. Sept. 28, 2010); see alsoHays v. Adam, 512 F.Supp.2d 1330, 1343 (N.D.Ga.2007) (“[if] a receiver can recover Ponzi scheme profits from investors who have done nothing wrong, he would also be entitled to recover Ponzi scheme profits held by sales agents like the defendants, who illegally sold unregistered securities, and without whose efforts the scheme could not have occurred”). We have reviewed the documentation upon which the receiver based his calculation of disgorgement amounts for the individual defendants ( see Paduano Decl. Exs. P (Eisemann payments), S (Kagan payments), V (Dundon payments), and X (Landsman payments)), and have confirmed that the disgorgement amounts proposed by the receiver comport with the documentation.