Gecker v. Flynn (In re Emerald Casino, Inc.)

538 B.R. 417, 2015 U.S. Dist. LEXIS 91361
CourtDistrict Court, N.D. Illinois
DecidedJuly 14, 2015
Docket02 B 22977; Bankr. Adv. No. 08 A 00972; No. 11 C 4714
StatusPublished
Cited by3 cases

This text of 538 B.R. 417 (Gecker v. Flynn (In re Emerald Casino, Inc.)) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gecker v. Flynn (In re Emerald Casino, Inc.), 538 B.R. 417, 2015 U.S. Dist. LEXIS 91361 (N.D. Ill. 2015).

Opinion

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, United States District Judge

Emerald Casino, Inc. (“Emerald”) was building a casino in Rosemont, Illinois when the Illinois Gaming Board (“IGB”) revoked its license, forcing Emerald into bankruptcy. Plaintiff Frances Gecker, the Trustee appointed by the Bankruptcy Court on behalf of Emerald, brought this adversary proceeding against seven former directors and officers of Emerald, alleging that they breached their fiduciary duty to Emerald (Count I) and violated Emerald’s Amended Shareholders’ Agreement (Count II) causing the loss of its license. In the remaining four counts, she challenged the proofs of claims, filed by each of the Defendants in the underlying bankruptcy proceeding. On September 30, 2014, after a bench trial, this court set forth its findings of fact and conclusions of law on Counts I, II, and IV. As set forth in its opinion, In re Emerald Casino, Inc., 530 B.R. 44 (N.D.Ill.2014), the court found that six Defendants — Donald Flynn, Kevin Flynn, Walter Hanley, Kevin Larson, John McMahon, and Joseph McQuaid — were liable under Count II for breach of the Amended Shareholders’ Agreement. The court determined that the value of the lost license was $272 million, based on the price of the most recent sale of that license from the IGB to Midwest Gaming. Having concluded that the six Defendants who breached the Agreement were equally responsible for the lost license, the court apportioned damages equally among them, awarding $45,333,333.33 as to each. The [420]*420court dismissed claims against the seventh Defendant, Peer Pedersen.

The Trustee and the six Defendants found liable each ask this court to reconsider aspects of its damages analysis. The Trustee urges that the court incorrectly awarded damages pro rata, rather than holding each Defendant liable for the full value of the license. The Defendants urge that the actual market value of the license is $125 million, not $272 million as the court concluded in its earlier opinion. As explained below, the motions [319, 328] are denied.

BACKGROUND

The facts of this case are set forth in the September 30, 2014 ruling, see In re Emerald Casino, 530 B.R. 44 (N.D.Ill.2014), and the court recites only those facts -necessary to resolve the motions for reconsideration before the court. Defendants are former officers, directors, and shareholders of Emerald Casino, Inc., which was initially created to operate a riverboat casino in East Dubuque, Illinois. As shareholders, each Defendant signed an Amended Shareholders’ Agreement, in which he agreed “to comply with the [Riverboat Gambling] Act, Rules, and orders of the IGB.” Emerald, 530 B.R. at 59-60, 68. The riverboat casino was struggling financially, confined to its East Dubuque location, and Defendants successfully lobbied the Illinois legislature to permit Emerald to re-locate its gaming license. Id. at 61, 64-65. Emerald immediately began taking steps to relocate to Rosemont, Illinois, but on January 30, 2001 the Illinois Gaming Board (“IGB”) — the state agency responsible for regulating casinos — revoked Emerald’s license after an unprecedented investigation. Id. at 68-71. The IGB’s primary concern appears to have been that “organized crime” was somehow involved in Emerald’s proposed new location, and Emerald’s less-than-forthcoming communications with the IGB heightened the regulators’ suspicions. Emerald, 530 B.R. at 58. Ultimately, the IGB concluded that, by repeatedly failing to disclose information, Emerald had violated several IGB Rules. For the first time in the IGB’s history, the IGB revoked a gaming license as a sanction. Id. The license was Emerald’s only significant asset, and when Emerald was stripped of it, bankruptcy proceedings swiftly followed.

Plaintiff Frances Gecker, the Trustee on behalf of Emerald, brought this adversary proceeding alleging, among other things, that Defendants breached their obligation under the Amended Shareholders’ Agreement to comply with IGB Rules. The Trustee established that each of the seven Defendants had violated IGB Rules, and had therefore breached the Agreement. Id. at 202. The court then turned to causation and damages.

First, the court assessed whether each Defendant’s breach caused the loss of the license. The court began by analyzing the Final Board Order, the written decision explaining the IGB’s reasons for revoking the license. The IGB emphasized its “authority to revoke the license on the basis of any single rule violation,” but this court concluded that other language in the Final Board Order “made clear that the totality of Emerald’s conduct” was central to the IGB’s decision to revoke the license rather than impose some lesser penalty, such as a fine. Emerald, 530 B.R. at 203, 210. Because “multiple factors ... may have combined to cause the injury,” the court asked “whether [each] defendant’s conduct was a material element and a substantial factor in bringing about the injury.” Id. at 203 (quoting City of Chi. v. Beretta U.S.A. Corp., 213 Ill.2d 351, 395, 290 Ill.Dec. 525,821 N.E.2d 1099, 1127 (Ill.2004)). The court found that the IGB’s decision to re[421]*421voke the license was motivated in substantial part by the Defendants’ “failures to disclose information,” conduct which “violated multiple IGB rules” — specifically Rules 140(a), 140(b)(3), and 110(a)1 — and concluded that the IGB attached “significant weight” to the violations of these three Rules. Id. Though the IGB noted violations of Rule 235(a), which prohibits the transfer of shares without IGB approval, the court concluded that these violations were not substantial factors in the IGB’s decision because “the IGB had a long history of overlooking, and even condoning” such transfers. Id. at 203-04.

After identifying the three Rules that were material elements and substantial factors in the IGB’s decision to revoke Emerald’s license, the court identified which Defendants were responsible for violating those three Rules. The IGB’s Final Board Order stated only that “Emerald” had violated each of the Rules, without specifying whose conduct was at issue. Emerald, 530 B.R. at 197. The court concluded that the Trustee established that six Defendants violated those three Rules that were material elements in IGB’s decision to revoke the license. With respect to Peer Pedersen, however, the Trustee established only that he violated Rule 235(a), which the court found was not a substantial factor. Id. at 203. Thus, the court concluded that Peer Pedersen’s breach did not cause the loss of the license, and dismissed claims against him. Id. at 204.

The court then turned to damages. The court concluded that the Amended Shareholders’ Agreement created several liability only because “[t]he promised performance was unique to each shareholder that signed the contract. That is, each shareholder promised to conform his or her own behavior to IGB rules.” Emerald, 530 B.R. at 209. Defendants, thus, are not liable for breaches by other shareholders, and each Defendant may be held liable only for the proportion of damages he individually caused. To apportion responsibility for the loss of the license among the Defendants, the court again considered the IGB’s findings, noting that:

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Related

Gecker v. Estate of Flynn (In re Emerald Casino, Inc.)
867 F.3d 743 (Seventh Circuit, 2017)
Kevin Larson v. Frances Gecker
Seventh Circuit, 2017
Helms v. Hanson (In re Mollie Enterprises, Inc.)
559 B.R. 501 (N.D. Illinois, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
538 B.R. 417, 2015 U.S. Dist. LEXIS 91361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gecker-v-flynn-in-re-emerald-casino-inc-ilnd-2015.