This apercu originates in the Hebrew Bible, Book of Hosea, Chapter 8, Verse 7. Assuming the statement’s accurate, an open question remains: what happens when you reap the whirlwind? Can you get rich doing that? I am not a biblical scholar but I know that is not how the text is normally interpreted. Maybe the text needs to be re-examined as we are propelled in part by kilowatts of wind energy into the middle 21st Century and beyond.
Fagen v. Exergy v. Fagen v. Hawley Troxell (“HT”) is a lawsuit arising out of a wind-farm construction failure that Minnesota Litigator has followed for more than three years now. So far, it is unclear who will be sucking wind when this battle is done, although it is very clear that the lawyers have had and continue to have plentiful harvest of billable hours.
Could the gale force winds of this litigation die down soon?
Recently the parties have all filed for summary judgment in whole or in part (Fagen, here, Exergy, here, HT, here). I have to assume that very few readers will have the interest in reading the combined 118 pages of briefing, but here are some highlights.
Exergy had an expert who apparently did not get paid, did not show up for deposition, and quit the case. Fagen Brief at pp. 20-22.
Fagen’s wind farm valuation expert valued the wind farm at negative $13.9 million. Id.
Fagen’s basic position in the lawsuit is that it performed construction, it did not get paid for its work, and it negotiated a deal whereby it would take ownership of the project if Exergy could not pay its debt to Fagen. Exergy could not pay its debt. As a result, Fagen gets to reap whirlwind, for better or worse.
Exergy’s basic position is that Fagen, like some kind of evil Dickensian financial manipulator, functioned as both lender and builder to Exergy and, playing both parts, put the squeeze on Exergy and misappropriated the wind farm. Exergy Brief at p. 2.
And the law firm of Hawley Troxell, according to Exergy, told one party to the transaction one thing and the other side the opposite, “a deplorable disavowal of responsibility…” Exergy Brief at p. 30.
Finally, the Hawley Troxell law firm argues that it counseled Exergy that Article 9 of the Uniform Commercial Code applied to the transaction. Fagen’s counsel openly contested that point of view. And Exergy entered into the transaction knowing that there was a difference of opinion as to the applicability of Article 9. So, Exergy knew or should have known that there was some question on this legal point and cannot claim that Hawley Troxell’s legal advice caused Exergy’s losses….HT Brief at p. 3.
It will fall to U.S. District Court Judge John R. Tunheim to navigate through this squall of legal argument. For the sake of the litigants, I hope that Judge Tunheim can reach some definitive decision on the summary judgment papers rather than putting the litigants through the additional expense of trial.
Ludolf Backhuysen, Christ in the Storm on the Sea of Galilee – 1695