In short, the agreement clearly reflects that the parties contemplated - were considering -
some joint future project development and that the binding contractual undertakings described in
paragraph 1 were preliminary to such a future project. It is not at all clear, however, that the
parties intended to be bound or obligated to actually build such a project at the time of the
signing of the Memorandum of Understanding. If the parties did intend such an obligation,
however, Plaintiff has made a substantial showing that the corporate formalities notwithstanding,
Navitas was formed by NAE for the very purpose of constructing such a project in lieu of the
project contemplated in the Memorandum of Understanding. We find that given the language of
paragraph 2 of the Memorandum of Understanding, Plaintiff has failed to establish that it has a
strong likelihood of success on the merits. However, we cannot conclude at this point that it has

not met the minimal burden of establishing a less than negligible likelihood of success.

B. No Adequate Remedy at Law

Defendants are building an unprecedented wind power project in Illinois. Plaintiff submits
that its losses will be more than simply money damages because it will be put at a competitive
disadvantage in the development of future such projects in Illinois if its turbines are not involved
in the first such project. Thus Plaintiff will lose the goodwill that accrues to the exclusive
supplier of wind turbines for the first project. We are not convinced that this is so. To agree with
Plaintiff's conclusions we would have to assume first, that the Gamesa/Navitas project will be
successful. For only if the project is successful will Defendants gain a competitive advantage
over the Plaintiff. If the project is unsuccessful, the opposite will likely be true. Second, we

would have to discount product differences. That is, we would have to assume that Plaintiff's



CONCLUSION
For the foregoing reasons Plaintiffs motion for a temporary restraining order is

DENIED. Plaintiffs motion for a preliminary injunction is referred to Magistrate Judge Nolan.

e
ENTERED: Lyplonby Gate

RONALD A. GU:
United States Judge

SO ORDERED



exclusive contract between it and NAE, the Memorandum of Understanding of October 21, 1999.
Unfortunately the agreement does not fully support Plaintiff's contention that Plaintiff would be
NAE's exclusive provider of wind turbines for NAE's development of a wind power project in
northern Illinois. The operative paragraph of the one page memorandum of understanding is
paragraph 2. But that paragraph does not appear to obligate the Defendant to develop a wind
power project at all. It merely states that Plaintiff and Defendant intend to jointly propose a
particular power project to the Illinois Clean Energy Trust sometime within the first quarter of
the year 2000. It does not, on its face, appear to affirmatively bind either party to actually make
such a proposal or to actually build a wind power project. The Memorandum of Understanding
indicates that if such a project were to be undertaken at “either of the above mentioned
candidates sites” Plaintiff would be the exclusive supplier of the wind turbines, But the language
in paragraph 2 is not, as it is in paragraph 1, for example, that of an affirmative undertaking.
Instead it speaks of future conditional intentions. Paragraph 2 speaks only of the parties’ “intent”
to present a proposal. It does not affirmatively bind either party to actually do so. It would be
simple to state a binding obligation if one were intended, and indeed the parties have done just
that with respect to the obligations spelled out in paragraph 1. Nowhere does paragraph 2 clearly
state that the parties have agreed to develop or construct a wind power plant or project.
Paragraph 2 does state in conditional terms that Plaintiff “would be” the exclusive supplier of the
wind turbines for any project at either of the sites described in paragraph 1. The project Plaintiff
seeks to enjoin is not at either of the two sites described in paragraph 1, although it is apparently

directly adjoining one of the sites.


product is neither superior nor inferior to the Gamesa’s wind turbine in order to conclude that
Plaintiff's failure to make the first sale would make any significant difference in its ability to
market its wind turbines. Third, we would have to assume that future Illinois purchasers of wind
turbines would be ignorant of the fact that Navitas was in essence purchasing from itself when it
determined to use Gamesa’s turbines for its project. Under such circumstances it is not likely that
future consumers will infer that Gamesa’s turbines have been judged superior to those of NEG.
For purposes of this temporary restraining order we are not convinced that the mere fact that
Plaintiffs will not be the first to sell turbines in Illinois is sufficient to establish a competitive

disadvantage resulting in an inadequate remedy at law.

C.  Irreparable Harm

Plaintiff argues that its loss in goodwill will be irreparable if Defendants continue to use a
competitor as a supplier. We fail to see what loss of goodwill is being referred to. In its
memorandum Plaintiff describes the lost opportunity to gain experience with installing the wind
turbine project as constituting irreparable harm. Plaintiff also identifies a blow to its reputation
resulting from not having been chosen as the supplier of turbines for this initial project. This
kind of “irreparable harm” it seems to us would exist in every breach of contract action. The kind
of collateral benefits in client relationships and goodwill gained from successfully filling any
commercial contract are not the stuff of irreparable harm. The only possible difference we see
between the present situation and the ordinary run of the mill breach of contract action is that
Plaintiff asserts that this is the first such project in the state of Illinois. But surely it is not the

first such project anywhere and the mechanics of installing wind turbines in Illinois can not be



Minute Onder Form (0697)

United States District Court, Northern District of Illinois

-

Neer Magate age Ronald A. Guzman “Than signed Suge
CASE NUMBER 03 C 5851 DATE 9/9/2003

CASE NEG MICON USA, INC. vs. NORTHERN ALTERNATIVE ENERGY, et al

TITLE

{In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: Of the motion being presented.]
DOCKET ENTRY:
() Q Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motiondue
3) a Answer brief to motion due__. Reply to answer briefdue__.
(4) oa Ruling/Hearingon___set for at.
(5) a Status hearing set for 11/7/2003 at 9:30 A.M..
(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on__—_—ssetfor_——sat_—
(w) a Trial{set for/re-set for} on at
(8) im [Bench/Jury trial] [Hearing} held/continued to__at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) O FRCP41(aX(2).

(10) MM [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Plaintiff's motion for

a temporary restraining order [14-1] is DENIED. Plaintiff's motion for a preliminary injunction is

referred to Magistrate Judge Nolan.

dl) @ [For further detail see order attached to the original minute order.]
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that different from what is involved in doing so in any other venue. As pointed out in Navitas’
response, Plaintiff has been identified as a possible supplier of turbines for two other wind power
projects in Illinois alone. In one such project Plaintiff is identified as having installed over
10,500 turbines over the past twenty years both internationally and in the Midwest. It appears to
us that Plaintiff is attempting to bootstrap a possible ordinary breach of contract action to the
level of irreparable harm. For purposes of this temporary restraining order we find that Plaintiff

has failed to establish irreparable harm.

D. The Balance of Harms

This consideration is also a close call for restraining an ongoing construction project is
bound to be costly for the party restrained. Further, Plaintiff does not ask us merely to restrain
the Defendants, but also to affirmatively force them to purchase Plaintiff's turbines for the
project. As Defendant Navitas points out forcing it to halt its construction, remove the turbines
already in place and re-engineer the site in order to install the Plaintiff’s turbines, which are
apparently structurally incompatible with the foundations already in place for the turbines, will

result in a significant degree of economic waste and expense.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED

SEP 4 1 2003

NEG MICON USA, INC.,
Plaintiff,
v. 03 C 5851
NORTHERN ALTERNATIVE

ENERGY and NAVITAS
ENERGY, INC.,

Judge Ronald A. Guzman

eed

Defendants.
MEMORANDUM OPINION AND ORDER

This action originated when Plaintiff filed a complaint and a motion for temporary
restraining order in state court. Defendants subsequently removed the action to this federal court.
In summary, Plaintiff alleges that it is a manufacturer of wind turbines. It has several
competitors, including Gamesa. Plaintiff asserts that it and Northern Alternative Energy ("NAE")
entered into an agreement whereby Plaintiff would be NAE's exclusive provider of wind turbines
for NAE's development of a wind power project in northern Illinois. This project was to be the
first of its kind in Illinois. Plaintiff devoted significant resources to this project.

Subsequent to the execution of the above described agreement and after the first phase of
the agreement had been completed, NAE's officers formed Navitas, which it then sold in large
part to Gamesa. Navitas is now about to use Gamesa as its supplier of wind turbines. Plaintiff
seeks to (1) enjoin Navitas from using another supplier of wind turbines; and (2) force Navitas to
use NEG Micon as its supplier of wind turbines for the project. Plaintiff alleges that Navitas was

the alter ego of NAE before Navitas’ sale, and that NAE and Navitas are breaching Plaintiff's


”

exclusive contract. Alternatively, Plaintiff alleges that Navitas is tortiously interfering with

Plaintiff's economic interest.

I Jurisdiction

Defendants removed this case based on diversity jurisdiction. Plaintiff is an Illinois
corporation with its principal place of business in Illinois. Defendants are Minnesota
corporations with their principal place of business in Minnesota. The amount in controversy

appears to be substantially above the jurisdictional minimum.

Il. TRO Standards

To succeed in its bid for a temporary restraining order Plaintiff must show: (1) that it has
a reasonable likelihood of success on the merits of its claim; (2) that no adequate remedy at law
exists; (3) that it will suffer irreparable harm if the preliminary injunction is denied; (4) that the
irreparable harm it will suffer without preliminary injunctive relief outweighs the irreparable
harm the nonmoving party will suffer if the preliminary injunction is granted; and (5) that the
injunction will not harm the public interest. Platinum Home Mortgage Corp. v. Platinum Fin.

Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998).

A, Reasonable Likelihood of Success on the Merits
This burden is relatively light: plaintiff need only show that its “chances [for success] are
better than negligible." Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir.

1984). Plaintiff here has met this burden, but just barely. It has shown the existence of an