From Law360.com regarding Cook Co. Case No. 2014-L-2768, ACF Leasing, ACF Services & Generation Clean Fuels v. Green Bay Renewable Energy, Oneida Seven Generations Corporation & Oneida Tribe of Indians of Wisconsin:
Law360, New York (October 14, 2015, 3:46 PM ET) — The forum selection clause in a lease agreement does not waive a Native American tribe’s sovereign immunity, an Illinois appellate court found Tuesday, refusing to revive claims against the Oneida Tribe of Indians of Wisconsin over a $22 million lease contract for renewable energy equipment.
A three judge panel of the appellate court concluded that ACF Leasing LLC, ACF Services LLC and Generation Clean Fuels LLC failed to show that the forum selection clause in their lease agreement with Green Bay Renewable Energy LLC — a subsidiary of a tribe-owned business — constitutes a waiver of the tribe’s sovereign immunity bestowed upon it by federal law.
“In the case at bar, the forum selection clause in the agreements specifies Illinois as the venue for a dispute, but says nothing about expressly waiving sovereign immunity. To relinquish its immunity, a tribe’s waiver must be clear,” the court’s opinion said. “Accordingly, we maintain that the tribe and [Oneida Seven Generations Corp.] did not expressly waive sovereign immunity through the forum selection clauses.”
The leasing companies filed their suit against Green Bay Renewable Energy, the tribe and OSGC, a tribe-owned business, alleging they’d violated a 2013 contract in which ACF Leasing leased three liquefaction machines to GBRE for $22.2 million for a 21-year term.
The companies argued that when the tribe voted to dissolve OSGC in December 2013, the entity that had committed to providing GBRE with financing withdrew from its commitment to finance the project and, as a result, the contract could not be upheld.
They brought claims of breach of contract, promissory estoppel, unjust enrichment, vicarious liability, tortious interference with contract, tortious interference with prospective economic advantage and tortious interference with business expectancy.
The tribe claimed that because neither it nor OSGC were parties to the lease agreement, and because the tribe is a sovereign Indian Nation, and OSGC is a subordinate entity created by the tribe, sovereign immunity applied.
They further alleged that they did not waive this sovereign immunity, and thus there was no subject matter jurisdiction over them.
Both the trial court and the appellate court agreed with those contentions. Citing “clear precedent” from the U.S. Supreme Court, the appellate court said it is “unwilling to extend our state’s subject matter jurisdiction in this case over defendants, and we find that sovereign immunity applies to both the tribe and OSGC, a tribal entity.”
Counsel for the plaintiffs, Gerald M. Dombrowski of Sanchez Daniels & Hoffman LLP, said he and his clients are weighing their options after the decision, including an appeal to the state supreme court “and beyond.”
“We still feel our case is very strong and defendant GBRE remains firmly in the case,” Dombrowski said. “We will also likely be adding a number of defendants to the suit who do not enjoy the benefit of sovereign immunity.”
Justices Maureen E. Connors, Laura C. Liu and Joy V. Cunningham sat on the panel.
ACF Leasing LLC, ACF Services LLC and Generation Clean Fuels LLC are represented by Gerald M. Dombrowski and Heather Erickson of Sanchez Daniels & Hoffman LLP.
The defendants are represented by James B. Vogts and Thomas J. Verticchio of Swanson Martin & Bell LLP and Thomas M. Pyper of Whyte Hirschboeck Dudek SC.
UPDATE:
Here is a copy of the Appellate Order:
- October 13, 2015 Appellate Order re: Cook Co. IL Case No. 14-L-2768, ACF Leasing, ACF Services & Generation Clean Fuels vs. Green Bay Renewable Energy, Oneida Seven Generations Corporation & Oneida Tribe of Indians of Wisconsin
Beginning on October 21, 2015, Oneida Tribe members received a letter in the mail from the Oneida Business Committee (which was dated September 23, 2015) stating that the OBC had declined a settlement offer by the Plaintiffs which would have allowed the Oneida Tribe to settle the matters described above for $9 million:
The OBC’s letter states regarding the latter lawsuit:
The Oneida Business Committee received a request from the plaintiffs to consider settlement. The complaint alleges $400 million in damages; the settlement offer was $9 million. We discussed this settlement in Executive Session on August 26, 2015, and rejected this offer. We believe that the Tribe has not damaged ACF in any way and was not a party to the contract. As a result, the settlement offer is too high to be considered. We do not make a counter-offer as we continue to believe that the Tribe will prevail in this matter. However, if a settlement offer is presented which we think fairly represents the risk and cost of continuing versus concluding this matter, we have committed to bringing that to the General Tribal Council for action.
In other words, the OBC seems to think that they have the right to unilaterally reject a settlement offer but acknowledge that they must ask General Tribal Council to approve a settlement offer.
The contracts at issue were signed by OSGC CEO & GBRE President Kevin Cornelius on May 24, 2013, for a ‘plastics-to-oil’ endeavor which GTC had already voted on May 5, 2013, to forbid OSGC and its subsidiaries from pursuing anywhere on the Oneida reservation. Kevin Cornelius and OSGC President & Chair William Cornelius, Esq., attended that May 5 GTC Meeting.
OSGC allowed that prohibited endeavor to proceed anyway at its facility on O’Hare Boulevard in violation of GTC’s directive and local zoning ordinances as reported by the local media.
Some OBC members and OBC Chief Counsel Jo Anne House defended OSGC’s actions desipte OSGC acting in violation of the directive of the supreme governing body of the Oneida Tribe, which resulted in GTC voting on December 15, 2013, to direct the OBC to work with GTC-appointed representative Frank Cornelius, Sr., to fully dissolve OSGC.
Instead, the OBC chose to fund a lawsuit by OSGC & GBRE against the City of Green Bay which wound up before the Wisconsin Supreme Court, which foolishly defended OSGC’s & GBRE‘s misrepresentations to the City of Green Bay, which were the same misrepresentations made by OSGC’s partner Ron Van Den Heuvel to investors including Dr. Marco Araujo, for which he successfully sued Ron Van Den Heuvel for the return of his investment, which also resulted in Green Box NA Green Bay, LLC, being taken into receivership in Brown County Case #2015CV769, Dr. Marco Araujo, Cliffton Equities and Wisconsin Economic Development Corporation (WEDC) v. Green Box NA Green Bay, LLC.
Interestingly, law firm Godfrey & Kahn defended OSGC’s & GBRE’s ‘waste energy’ scam against the City of Green Bay to the Wisconsin Supreme Court (who foolishly fell for it, or simply looked out for the ‘interests’ of their campaign donors)…
and yet Godfrey & Kahn also defended Dr. Marco Araujo against Ron Van Den Heuvel’s ‘waste energy’ scam, which was itself the basis for OSGC’s & GBRE’s ‘waste energy’ scam against the City of Green Bay and the WEDC.
So which is it, Godfrey & Kahn?
Was Ron Van Den Heuvel running a criminal enterprise about which your clients OSGC & GBRE made the same misrepresentations to the City of Green Bay that Ron Van Den Heuvel also made to individual investors like your client Dr. Marco Araujo, or not?
Before you answer, Godfrey & Kahn, don’t forget G & K’s own pro-‘waste energy’ presentation:
- June 11, 2013 ‘Financing Green Energy: Developing Tribal Energy Resources and Economies’ PowerPoint by John Clancy & Brian Pierson of Godfrey & Kahn at the Sandia Resort & Casino Hotel in Albuquerque, New Mexico
It sure looks like your client OSGC and their business partner Ron Van Den Heuvel were following your described plans but using the Oneida Tribe to fraudulently obtain state & federal financing for their shared scam which you ‘successfully’ defended before the Wisconsin Supreme Court.
The same waste energy scam you ‘successfully’ defended your client Dr. Marco Araujo against as a Plaintiff in Brown County Case No. 2015CV769, Dr. Marco Araujo, Cliffton Equities and Wisconsin Economic Development Corporation (WEDC) v. Green Box NA Green Bay, LLC.
OOPS!!!
The same scam that has now cost the General Tribal Council of the Oneida Tribe of Indians of Wisconsin over five-and-a-half million dollars and would have cost them tens of millions of dollars more if GTC had not voted to tell OSGC “NO!” and voted to dissolve OSGC.
OOPS, AGAIN!!
Or is that what you call a real GODFREY & KAHN JOB?
Godfrey & Kahn’s Eric J. Wilson also represented Global Environmental Infrastructure Technology Solutions / GEITS Corp. in their attempt to launch a ‘waste energy’ tourism destination/attraction in the Town of Adams, WI, in which GEITS went so far as to hire the town’s Mayor to promote the project, which the people then rejected.
TRIPLE OOPS!!!
On September 21, 2015, forty-two Oneidas asked the U.S. Dept. of Justice to investigate Oneida Nation High School Principal Artley Skenandore and his Swakweko, LLC; Latif Mahjoob and American Combustion Technologies of California Inc. (ACTI); OSGC and its subsidiaries GBRE, IEP Development, Oneida Energy Inc. and Oneida-Kodiak Construction; Alliance Construction & Design / Alliance GC; ACF Leasing, ACF Services & Generation Clean Fuels; and the Oneida Business Committee and the Oneida Law Office regarding their involvment in promoting and perpetuating the ‘waste energy’ scams of Ronald Henry Van Den Heuvel and his Green Box NA Green Bay, LLC, which are currently under investigation for theft and securities fraud by the Brown County Sheriff’s Department’s Investigative Division, and which appear to be connected to the Mantria Corporation Ponzi scheme, whose principals’ federal indictments for conspiracy; fraud; wire fraud; and aiding & abetteing, were unsealed on September 2, 2015.
UPDATE:
12/23/2016 UPDATE:
See also:
Re: Meyers, et al. vs Oneida Tribe of Indians of Wisconsin:
