• April 23, 2015
Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

Updated Post (4/23/2015):  If you have been following ML’s coverage of the Fagen v. Exergy case (see below), then see Exergy’s linked reply memo in support of its motion to amend its counterclaim (otherwise known as adding a new party). “Trial is eight months away from trial at a minimum,” Exergy explains, which I think is an Einsteinian or a quantum concept.

In sum, notwithstanding Fagen’s expressions of outrage and accusations of intentional wrongdoing, Exergy won’t back down

Updated Post (April 1, 2015):  Sometimes there is a kind of attenuated slow-down of time in civil litigation. When there are dangerous errors or wrong-doing in civil litigation, the consequences sometimes can play out over months or years. It is as if you stumble over a trip wire, hear a click, you know you are now in a bad spot, but detonation might be months later… I wonder if someone might be dealing with those unsettling circumstances in the Fagen v. Exergy fight, which I’ve covered in several previous posts.

Defendant Exergy wants to add a new party to this long-running and intensely litigated dispute. Why the new party in this case that has been pending for more than two years?

Exergy has located and produced a series of promissory notes ($12 million worth) executed by the project entity, Big Blue Windfarm, LLC (which is owned by Plaintiff/ Counterdefendant [MET]) in favor of Exergy relating to costs paid by Exergy for the development of the Big Blue Project between 2006 and 2011. See Declaration of James T. Carkulis, filed concurrently herewith (“Carkulis Decl.”). “These notes were misplaced in the course of a large scale office move that resulted in documents being divided across multiple locations.”

(Here is the declaration about the newly located promissory notes. Here are the promissory notes.)

Really? This case has been pending since October, 2012 and Defendant Exergy “found” $12 million in promissory notes related (apparently) to the subject of the litigation in October, 2014?

Plaintiff Fagen pulls no punches here, taking the position not only that Exergy’s efforts to add a new party to the lawsuit at this point are woefully late and impermissible. Also, Fagen goes much further and argues that the promissory notes are fraudulent.

I wonder who is being gutsy or fool-hardy here (or perhaps criminal?)? I cannot tell from the court filings. But I think I can say this with some degree of certainty: these notes are either fraudulent or they are not. Further, over time, when we’re dealing with $12 million in promissory notes, this question is likely to be definitively answered at some point, regardless of how the Court rules on Exergy’s motion to amend its counterclaim (really, its motion to add a party, not amend a counterclaim). And if these notes are fraudulent (I note that Fagen’s counsel does not claim they are forgeries, interestingly), then we might be witnessing a slow motion implosion.nuclear_fireball1 bomb explosion

Original post (March 3, 2015) (under the headline: Wind Chill Factor Minus Zero: A Stormy Wind Energy Lawsuit Grinds On…): The Fagen v. Exergy lawsuit has been the subject of several prior Minnesota Litigator posts. A number of the prior posts have to do with claimed “urgency” in the case, a feeling that apparently only Defendant Exergy and its legal counsel share lately.

U.S. District Court Mag. Judge Steven E. Rau denied Exergy’s motion for expedited hearing on its motion to add another party one year after the deadline for adding new parties this week. (And, today, he denied the motion to amend “without prejudice,” meaning Exergy gets to try again…)

traces-69808_1280See the footprints in the snow in the picture? Those symbolize the withdrawal Exergy’s previous local Minnesota counsel, Faegre Baker Daniels. Faegre Baker Daniels withdrew from the case shortly before Exergy brought its latest motion, as Fagen counsel notes in the attached blistering letter to the Court filed this week (see Point # 4).

Litigators are familiar with some clients’ processions of lawyers. The stream of models down the catwalk often represent progressions to less and less expensive lawyers as the fiscal carnage of lengthy litigation grinds on (noted here). But lawyers withdraw for other reasons as well, of course. For example, they might not feel comfortable with lead counsel’s working style or legal strategy. They might have a client communication or cooperation problems. Etc. Etc.

As for the withdrawal of the Faegre Baker Daniels lawyers as local counsel for Exergy, we only see the evidence of withdrawal, not the reasons behind it, which will very likely be kept indefinitely confidential. But I think it is fair to suggest from the history of this case and from the contents of the attached letter that this case has at least a faint whiff of a potentially noxious quagmire. There are probably other more promising opportunities for Exergy’s exiting high-powered Minnesota legal team…

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