Car Charging Group, Inc et al v. JNS Holding Corporation et al

Filing 61

Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 9/24/2013. Mailed notice (jdh)

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

Car Charging Group, Inc., a
Nevada Corporation and 350
Holdings, LLC, a Florida
limited liability company,
Plaintiffs,
v.

JNS Holding Corporation, a
Delaware Corporation, and
JNS Power & Control
Systems, Inc., an Illinois
Corporation,
Defendants,
and
JNS Power & Control
Systems, Inc., an Illinois
Corporation,

Plaintiff,
v.
350 Green, LLC, a Virginia
limited liability company,
Defendant

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Nos. 13 C 3124
13 C 4020

MEMORANDUM OPINION AND ORDER
These consolidated cases arise out of a dispute between Car
Charging Group, Inc., and 350 Holdings, LLC, on the one hand
(collectively, “CCGI”), and JNS Holding Corporation and JNS Power
& Control (collectively, “JNS”) on the other, over the ownership
of certain assets previously owned by 350 Green, LLC.

Each side

contends that 350 Green entered into a valid and enforceable
agreement to transfer the assets in question to it, with CCGI
pointing to an equity exchange agreement dated March 8, 2013 (the
“Exchange

Agreement”),

and

its

subsequent

addenda,

and

JNS

asserting an asset purchase agreement dated April 17, 2013 (the
“APA”).
Before me are cross-motions for partial summary judgment.
In its motion, JNS seeks summary judgment of its claim against
350

Green

for

specific

performance

of

the

APA.

CCGI

seeks

summary judgment of its claim for a declaratory judgment that the
APA is void as a matter of law. For the reasons that follow, I
grant JNS’s motion and deny CCGI’s.
I.
The

entities

embroiled

in

this

dispute

are

providers for electric vehicle charging stations.

all

service

In October of

2010, 350 Green, LLC, was awarded a City of Chicago grant for
$1,911,000 to install a network of electric car charging stations
in the Chicago Area (the “Chicago Project”).

On June 14, 2012,

the City of Chicago sent 350 Green a Notice of Default on the
agreement governing the Chicago Project.

Shortly thereafter, 350

Green and its Members, Mariana Gerzanych and Timothy Mason (the
“350 Members”) began negotiating with Car Charging Group, Inc.
(“CCGI”) for the sale of all of their membership interests in 350
Green to a newly-formed subsidiary of CCGI (later named “350
2

Holdings”).
assist in

350 Green retained Oracle Capital Securities to
the

sale.

Negotiations

proceeded pursuant

to

two

separate term sheets, signed in July and August of 2012, while
CCGI conducted due diligence.
These negotiations culminated in the execution, on March 8,
2013, of the Exchange Agreement among CCGI, 350 Holdings, 350
Green, and the 350 Members.

Pursuant to the Exchange Agreement,

CCGI agreed to issue shares in CCGI stock to the 350 Members in
exchange for the 350 Members’ transfer to 350 Holdings of all of
their membership interests in 350 Green.
provides

that

the

transaction

was

The Exchange Agreement

to

close

after

certain

preconditions were met or waived and “no later than ten (10)
business days after the Effective Date” of the agreement, or
March 22, 2013.
As far as the record reveals, the deal was on track to close
until March 21, 2013.

On that date, counsel for 350 Green and

the 350 Members sent fully executed closing documents to in-house
counsel for CCGI.

Counsel for CCGI confirmed receipt of these

documents but indicated that she was “not yet authorized” to
circulate CCGI’s executed closing documents, emphasizing that the
deal was “not yet closed.”

Counsel for 350 Green informed CCGI’s

counsel at that point that if the deal were not closed by the
following

day—the

Agreement—his

closing

clients

deadline

would

provided

consider
3

the

in

the

Exchange

transaction

to

be

expired.

JNS’s L.R. 56.1 Stmt., Exh. 6 at ¶ 5.1

day—the

closing

deadline

provided

in

the

The next
Exchange

Agreement—CCGI’s counsel sent 350 Green and the 350 Members a
non-compete agreement along with an “addendum” to extend the
closing

date

until

the

following

Monday

(March

25,

2013).

Counsel for CCGI stated, “[w]e need both documents signed and
returned before I will circulate [CCGI’s CEO’s] signature pages.”
JNS’s L.R. 56.1 Stmt., Exh 9 at 1 [DN 35].

1

Although the parties did not make the task easy, I am satisfied
based on careful review of the record in both cases that this fact
is undisputed. JNS states this fact in ¶ 22 of its Statement of
Additional Undisputed Facts (“SAF”) filed in opposition to CCGI’s
motion in the 13 C 3124 case [3124 DN 48], citing the “Pierce Aff.”
and the “Gerzanych Aff.” without any reference to where, if
anywhere, such exhibits may be found in the record. As far as I
can discern, the only affidavit of Mariana Gerzanych in this record
is the one CCGI attached as an exhibit to its own Statement of
Additional Undisputed Facts in opposition to JNS’s motion in the 13
C 4020 case [4020 DN 37-13].
Unsurprisingly, nothing in that
affidavit supports JNS’s assertion.
While there is no “Pierce
Aff.” attached to JNS’s SAF in the 3124 case (i.e., where the
affidavit is cited), I assume JNS is referring to the Affidavit of
John Pierce attached to JNS’s L.R. 56.1 statement in support of its
motion in the 4020 case, which does, indeed, support the fact JNS
asserts at ¶ 22 of its SAF in the 3124 case.
JNS should have
facilitated my review by ensuring that all evidence cited in its
factual statement is, in fact, in the record, and by indicating
clearly, by reference to an exhibit number, where that evidence can
be found. Nevertheless, I am satisfied that this particular fact
does, indeed, find support in the consolidated record.
I am
likewise satisfied that the fact is undisputed, since CCGI failed
to respond to JNS’s SAF in the 3124 case. See Ammons v. Aramark
Uniform Services, Inc., 368 F.3d 809, 817 (7th Cir. 2004); L.R.
56.1(a) (“All material facts set forth in the statement filed
pursuant to section (b)(3)(C) will be deemed admitted unless
controverted by the statement of the moving party.”). Moreover,
none of CCGI’s own factual statements meaningfully controverts the
statement in the Pierce Affidavit.
4

The remainder of the day came and went with no response from
350 Green or the 350 Members.

By the following Monday, March 25,

the 350 Members were describing the deal as “terminated,” see
3/25/2013 email of Tim Mason to Brian Howe, JNS’s L.R. 56.1
Stmt., Exh. 11 [4020 DN 35], and “cancelled.” See 3/25/2013 email
of Mariana Gerzanych to Craig Sultan et al., Farkas Decl., Exh. J
at 92 [3124 DN 41-4].

Neither the non-compete nor the addendum

was ever executed by 350 Green or its Members.

But on Tuesday,

March 26, with no further mention of these documents, CCGI’s inhouse counsel sent 350 Green and the 350 Members “the signature
pages from CCGI necessary to close the acquisition of 350 Green
by CCGI,” pursuant to the Exchange Agreement.
The

ensuing

days

saw

an

exchange

of

emails

among

the

parties, in which they discussed possible terms for an amended
agreement, but none was reached.

Finally, on April 9, 2013, CCGI

and 350 Holdings filed an action in the Southern District of New
York, seeking, among other things, to compel 350 Green and the
350 Members to close the transaction pursuant to the Exchange
Agreement.
By

then,

however,

350

Green

and

the

350

Members

were

pursuing other opportunities, specifically 350 Green’s sale to
JNS of the “Chicago Assets,” i.e., the 219 electric car chargers
(168 of which were already installed, and 51 of which remained to
be installed) that were part of the Chicago Project.
5

350 Green

and its Members reached an agreement with JNS on April 17, 2013,
which they memorialized in the Asset Purchase Agreement (the
“APA”) of that date.

Among the representations 350 Green made in

the APA were that 350 Green had “the necessary power, authority,
and capacity to enter into” the APA; that 350 Green was “the sole
lawful owner of the [Chicago] Asset”; that 350 Green was not “in
material

default

under

any

contract,

lease

or

any

other

commitment whatsoever” that was likely to affect JNS adversely;
and that 350 Green had “terminated all other prospective term
sheets or proposals with any other entity, for the purchase of”
the Chicago

Assets.

APA,

JNS

Cmplt.,

Exh.

B,

''

1.1,

1.2,

3.9(i), 3.9(ii).
The

APA

contemplated

that

the

deal

would

close

in

two

stages: first, upon signing the APA, which occurred on April 17,
2013; and second, when the contingencies set forth in the APA
Id., ' 2.12.

were satisfied on or about April 11, 2013.

The

only contingency JNS was required to fulfill was to obtain the
City of Chicago’s acceptance of the terms and conditions set
forth in
benefits

the
and

APA,

including the assignment

obligations

associated

6

with

the

of

the remaining

Chicago

Project

grant.2

JNS obtained the City of Chicago’s acceptance of the

terms and conditions of the APA on April 30, 2013.
Between the time the APA was executed and the time JNS
fulfilled this contingency for closing, however, CCGI and 350
Holdings settled

their

claims

against

350 Green

and

the

350

Members in the New York action on April 22, 2013, when they
signed an Addendum to the Equity Exchange Agreement (the “First
Addendum”).3

The First Addendum amended the Exchange Agreement’s

March 22 closing date to April 22, 2013, and it also provided
that

the

addition

350
to

Members
shares

of

would

receive

CCGI

stock,

membership interests in 350 Green.

cash
in

consideration,

exchange

for

in

their

As a condition for closing

under the First Addendum, the 350 Members were required to sign,
and did sign, an Exclusive Right of First Refusal Agreement.
That agreement gave CCGI the right of first refusal to match the
terms

of

any

electric

vehicle

related

business

opportunities

presented to the 350 Members for a twelve-month period beginning
on April 22, 2013.

2

CCGI fails to respond to this fact, asserted in paragraph 13 of
JNS’s L.R. 56.1 Statement, so I deem it admitted. See Ammons v.
Aramark Uniform Services, Inc., 368 F.3d 809, 817 (7th Cir. 2004)
(L.R. 56.1(b) “provides that ‘[a]ll material facts set forth in the
statement required of the moving party will be deemed to be
admitted unless controverted by the statement of the opposing
party.’”)
3
The same parties later entered into a “Second Addendum” on April
29, 2013, but nothing about the Second Addendum is relevant to my
analysis here.
7

The First Addendum also provides that the audit of 350 Green
set forth in Section 2.9.1 of the Exchange Agreement
shall officially commence on the Closing Date [of the
First Addendum, i.e., April 22, 2013]. At the end of
seventy-one (71) days [i.e., July 2, 2013], if the
Audit has not been completed, the Exchange Agreement
and this Exchange Addendum shall effectively terminate
without notice and without the necessity for the
Parties hereto to execute any further documentation to
effectuate such termination, and all representations,
warranties and covenants contained therein shall be
cancelled in full.
First Addendum, ' 4. It is undisputed that the audit referenced
in this provision was not completed.
II.
Summary judgment is proper if “the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Citadel Group Ltd. v.
Washington Regional Medical Center, 692 F.3d 580, 587 (7th Cir.
2012) (quoting Fed.R.Civ.P. 56(a)).

I must “construe all facts

and reasonable inferences in the light most favorable to the nonmoving party.”

Id.

Contract interpretation is ordinarily a

matter of law, and if the terms of the contract are unambiguous,
“there is

no

resort

to

extrinsic evidence,

dispute to preclude summary judgment.”

hence

no

factual

International Union v. ZF

Boge Elastmetall LLC, 649 F.3d 641, 646 (7th Cir. 2011) (internal
quotation marks and citation omitted).

8

Although

both

parties

seek

judgments

relating

to

the

validity of the Asset Purchase Agreement, their arguments focus
at least as heavily on the proper construction of the Exchange
Agreement, which they agree is unambiguous.

CCGI insists that

the terms of the Exchange Agreement prevented 350 Green from
entering into a valid agreement to transfer the Chicago Assets to
JNS, and that 350 was bound by the Exchange Agreement at the time
it executed the APA.

CCGI further argues that because JNS had

knowledge of the Exchange Agreement, it was likewise unable to
execute a valid agreement to purchase the Chicago Assets from 350
Green.

For these reasons, CCGI argues, the APA is void as a

matter of law.
CCGI’s

arguments

are

flawed

from

the

start

because

the

Exchange Agreement plainly does not bar 350 Green from agreeing
to sell the Chicago Assets.

Accordingly, even assuming that 350

Green and the 350 Members were bound to the Exchange Agreement at
the time they entered into the APA (an issue I nevertheless
address

below

agreement

for

prevented

the

sake

them

of

completion),

nothing

from

consummating

the

in

that

transaction

embodied in the APA.
The Exchange Agreement contemplates the sale, via a stockfor-membership interest exchange, of the 350 Green entity.

The

result of this type of transaction—an “entity sale”—is that postclosing,

the

buyer

(in

this

case,
9

350

Holdings)

owns

the

membership interests in the purchased entity (350 Green), while
the entity continues to own its assets.

The APA, by contrast,

contemplates the sale of certain of 350 Green’s assets to JNS.
The result of this type of transaction—an “asset sale”—is that
the purchaser (JNS) takes ownership of certain of the seller’s
assets, with no change in ownership of the selling entity (350
Green).4
CCGI attempts to gloss over this distinction, insisting that
“[t]he Exchange Agreement specifically contemplated the assets
related to the Chicago Project as part of the price that 350
Holdings

would

Members.”

pay

for

the

membership

interests

Farkas Decl., ¶ 16 [3124 DN 41-3 at 5].

of

the

350

Notable for

its absence, however, is a citation to any provision of the
Exchange Agreement—the

only

evidence

to

which

I

may

look

in

ascertaining its scope—to support this construction.5
CCGI insists, in its reply, that the purchase of 350 Green
“includes” 1) third party contracts for work done on the Chicago
Project

(citing

Schedule

2.6

of

4

the

Exchange

Agreement);

2)

These are basic corporate principles that are not genuinely in
dispute, but to the extent further discussion of this distinction
is helpful, see Selling Your Business: Entity Sale vs. Asset Sale,
http://www.allbusiness.com/print/3881519-1-9a0bs.html. Exh. A to
JNS’s Resp. [3124 DN 47].
5
CCGI points only to the Declaration of Michael Farkas to support
this statement.
I agree with JNS, however, that Farkas’
interpretation of what the Exchange Agreement contemplates is
inadmissible, as the parties agree that the terms of the agreement,
which includes an integration clause, are unambiguous. See Duval
Motors Co. v. Rogers, 73 So. 3d 261, 265 (Fla. App. Ct. 2011).
10

liabilities connected to the Chicago Project (citing Schedule
2.5); and 3) “the chargers themselves” (citing Schedule 2.9).”
CCGI’s SJ Reply at 2-3 [3124 DN 53].

But if any of the line

items in any of these schedules (which together amount to thirtyone pages of generically identified items) corresponds to assets
or liabilities relating to the Chicago Project, CCGI has not
directed

me

observation

to

them.

goes,

As

the

“[j]udges

are

Seventh
not

Circuit’s

like

pigs,

oft-cited

hunting

for

truffles buried in [the record].”

Gross v. Town of Cicero, Ill.,

619

2010)

F.3d

697,

original).

702

(7th

Cir.

(second

alteration

in

Schedule 2.9, for example, is nothing more than a

year-and-a-half’s

worth

of

350

Green’s

financial

statements,

which identify income, expenses, assets, and liabilities using
such

cryptic

Contractor,”

labels
“Electric

as

“Sales

–

Product

Installation,”

and

1,”

“Independent

“Accounts

Payable.”

Whether any of these items relates to the Chicago Project is
anyone’s guess.
In any event, even without CCGI’s guidance, I can glean from
the face of the Exchange Agreement that CCGI’s reliance on these
schedules is misplaced.

Regardless of what the line items in the

cited

to,

schedules

refer

none

of

the

Exchange

Agreement’s

substantive provisions restricts 350 Green or the 350 Members
from selling any item on any schedule.

So even assuming, for

example, that one or more of the “Electric Installations” in
11

Schedule 2.9 is among the Chicago Assets, the only reference to
Schedule 2.9 in the Exchange Agreement is in ' 2.9, which does
not

prevent

350

Green

or

the

350

otherwise disposing of these assets.

Members

from

selling

or

It merely states:

Attached hereto as Schedule 2.9 are 350’s unaudited
financial statements as of and for the fiscal quarters
ended September 30, 2011, December 31, 2011, and
September 30, 2012, December 31, 2012 and March 5, 2013
(including
balance
sheet,
income
statement;
collectively, the “350 Financial Statements”). The 350
Financial
Statements have
not been
prepared
in
accordance
with
generally
accepted
accounting
principles applicable in the United States of America
(“U.S. GAAP”).
Exchange Agreement, JNS’s L.R. 56.1 Stmt., Exh. 1 at ' 2.9
[4020 DN 35].

This provision goes on, in a subsection, to detail

the requirement that an audit of 350 Green take place following
the closing, and the consequences of various problems that may
arise in the course of the audit.
nothing

further

about

Schedule

Id. at ' 2.9.1.

2.9,

nor

does

it

It says
place

any

restrictions or obligations on 350 Green or its Members with
respect to the assets identified there.

This is equally true of

the provisions referencing the two other schedules CCGI relies on
for

its

claim

that

the

Exchange

Agreement

“specifically

contemplates” the transfer of the Chicago Assets.
In sum, CCGI’s argument that the Exchange Agreement—even
assuming it was in force at the time 350 Green executed the

12

APA—precluded 350 Green from entering into a valid agreement to
sell the Chicago Assets to JNS is without merit.
Nor does the record reflect a genuine dispute that 350 Green
and the 350 Members terminated the Exchange Agreement after CCGI
failed to deliver its closing documents by the deadline set forth
in

the

agreement,

agreements

out

substantial

ink

of

and

instead

350

Green

arguing

that

sought
and

its

this

to

extract

Members.6

putative

additional

CCGI

spills

termination

was

unlawful because the Exchange Agreement did not contain a “time
is of the essence” clause.

Therefore, CCGI’s argument goes, 350

Green and the 350 Members were not entitled to terminate the
agreement without first providing CCGI with notice of default and
an opportunity to cure.
Even

assuming JNS

This argument is unavailing.
was

required

to

provide notice

and

a

reasonable opportunity to cure, the uncontroverted evidence is
that 350 Green and its Members did give CCGI notice, on March 21,
2013, that they would consider the transaction “expired” if it
did not close by the deadline.

Pierce Aff. ¶ 5, JNS’s L.R. 56.1

Stmt., Exh. 6 [4020 DN 35] and n. 1, supra.

Yet, rather than

avoid default by delivering its closing documents (which CCGI now
6

CCGI devotes multiple pages of its opposition brief in the 4020
case to the argument that JNS “lacks standing to argue the Exchange
Agreement was terminated.”
This argument does not withstand
scrutiny. JNS does not seek to enforce, or bring any claim of
injury based on, the Exchange Agreement. Its arguments about the
Exchange Agreement merely respond to CCGI’s assertion of that
agreement as a basis for invalidating the APA.
13

insists

were

deadline,
consummate

executed

CCGI
the

and

ready

indicated

on

transaction

Exchange Agreement.

to

that

agreed

go)

before

date

that

upon

and

the
it

March
would

embodied

in

22
not
the

Instead, CCGI told 350 Green and its Members

that CCGI’s delivery of the closing documents was contingent upon
the 350 Members’ agreement to the additional terms proposed in
CCGI’s eleventh-hour non-compete and addendum.

See 3/22/2013

email of Kylie Wagenet to Craig Sultan et al., JNS’s L.R. 56.1
Stmt., Exh 9 at 1 [DN 35] (“[w]e need both documents signed and
returned

before

I

will

circulate

[CCGI’s

CEO’s]

signature

pages.”).
These are not circumstances akin to those in the cases CCGI
cites, in which Florida courts have held that “brief delays by
one party in performance of a contract” do not discharge the
other party of its obligations. E.g., National Exhibition Co. v.
Ball, 139 So.2d 489, 492 (Fla. App. Ct 1962).

At issue here is

not merely a “brief delay” in CCGI’s performance, but rather
CCGI’s

unmistakable

attempt

to

renegotiate

the

terms

of

the

parties’ deal after 350 Green and the 350 Members had performed
their closing obligations under the Exchange Agreement.

Nothing

in CCGI’s cited authorities suggests that 350 Green and the 350
Members could not terminate the Exchange Agreement under the
circumstances here.

14

Nor is there merit to CCGI’s suggestion that 350 Green and
the 350 Members tacitly agreed to extend the closing deadline
past

March

22,

or

that

they

failed

to

effectuate

a

valid

termination after CCGI’s apparent repudiation of the Exchange
Agreement, because the parties “continued to negotiate” after the
deadline had expired.

The very evidence to which CCGI points

confirms

point,

that

different deal.

at

that

the

parties

were

discussing

a

See, e.g., 3/26/13 email of Michael Farkas to

Ian Gardner, CCGI’s L.R. 56.1 Stmt., Exh. I [4020 DN 37-9 at 1]
(“The deal is not off it will just be done a much smarter way”);
3/28/13 email of Kylie Wagenet to Ian Gardner et al., CCGI’s L.R.
56.1 Stmt., Exh. J [4020 DN 37-10 at 1] (circulating “Amendment
to Equity Exchange Agreement” and “Secured Promissory Note”).
Indeed, the transaction that ultimately closed, on April 22,
2013,

was,

undisputedly,

materially

different

from

the

one

contemplated in the Exchange Agreement.
In short, the undisputed evidence is that 350 Green and the
350 Members considered the Exchange Agreement to have “expired”
as of the close of business on March 22, 2013, and CCGI offers no
reason—legal or factual—why 350 Green could not enter into a
valid agreement to sell the Chicago Assets thereafter.
Equally

misguided—even

farther

afield, in

fact—is

CCGI’s

argument that JNS could not validly agree to purchase the Chicago
Assets because it knew about the Exchange Agreement and the New
15

York

action.

CCGI

insists

that

JNS

was

not

a

“good

faith

purchaser” of the Chicago Assets, and that “for the APA to be
valid, JNS Power must have been without actual knowledge of any
defect in title or any pending claim.”
[3124 DN 41-2].

CCGI’s SJ Mem. at 12

Among the numerous flaws in this argument, the

most prominent is that CCGI relies exclusively on cases governed
by statutes and legal principles not applicable here, and offers
neither authority nor reasoned analysis for construing them to
invalidate the APA.
In CCGI’s first authority, In re Rock Industries Machinery
Corp., 572 F.2d 1195 (7th Cir. 1978), the court examined whether
a purchaser of a bankrupt’s assets at a judicial sale was a “good
faith purchaser” pursuant to Bankruptcy Rule 805.

The court’s

conclusion—which, incidentally, cuts against CCGI’s argument in
any event, since the court held that the purchaser’s knowledge of
adverse claims to certain assets “does not defeat his good faith
purchaser

status”

(emphasis

added)—was

firmly

rooted

construction of Bankruptcy Rule 805. Id. at 1199.

in

its

CCGI’s next

case, In re Newton, 64 B.R. 790 (Bkrtcy. C.D. Il. 1986) also
arises under bankruptcy laws, and the portion CCGI cites involves
an interpretation Section 349(b) of the Bankruptcy Code.

In

Shacket v. Roger Smith Aircraft Sales, Inc., 651 F. Supp. 675
(N.D. Ill. Nov. 20, 1986), the court analyzed the requirements
for

a

good

faith

purchase

under
16

Section

503

of

the

Uniform

Commercial

Code,

which

CCGI

admits

does

not

govern

the APA.

Finally, while it is difficult to distill into just a sentence
the factual and legal distinctions between this case and the
Supreme Court’s hundred-and-twenty year old decision in Lytle v.
Town of Lansing, 147 U.S. 59 (1893), I need not dwell on the
details because CCGI ultimately cites the case merely for its
“underlying concept,” which, according to CCGI, is “that a party
that has knowledge that purchases assets that it knows are the
subject of litigation does so at its own risk.”
at 15 [3124 DN 41-2].

CCGI’s SJ Mem.

But neither this broad “concept,” nor any

specific part of the Court’s analysis in Lytle, supports the
conclusion that the APA is void as a matter of law based on JNS’s
knowledge of the Exchange Agreement and the New York action.7
For

all

of

the

foregoing

reasons,

I

conclude

that

the

Exchange Agreement is no obstacle to the enforceability of the
APA.

I now turn to whether the APA is valid on its own terms,

and, if so, whether JNS is entitled to its specific performance.

7

The final nail in the coffin of this argument, which really does
not merit further discussion, is that because the Exchange
Agreement contemplated an “entity sale” and not an “asset sale,” as
discussed above, the “pending claims” of which JNS had knowledge
was not a claim to ownership of 350 Green’s assets (i.e., the
object of the APA) at all, nor did it put JNS on notice of any
“defect in [350 Green’s] title” to those assets. And even CCGI’s
indirect ownership of 350 Green’s assets (via its ownership of 350
Holdings, which acquired the entity 350 Green when the Amended
Exchange Agreement was consummated) was not achieved until April
22, 2013—after 350 Green agreed to sell the Chicago Assets to JNS.
17

The equitable remedy of specific performance is appropriate
when the plaintiff can establish 1) the existence of a valid,
binding, and enforceable contract; 2) compliance by the plaintiff
with the terms of the contract or the fact that plaintiff is
ready, willing, and able to comply; and 3) the failure or refusal
by

the

defendant

to

perform

under

the

contract.

Happy

R

Securities, LLC v. Agri-Sources, LLC, 988 N.E. 2d 972, 981 (Ill.
App. Ct. 2013).

CCGI raises two (or possibly three) arguments in

opposition to JNS’s motion.
CCGI’s first argument merely reiterates that the APA is
invalid, and begins by citing the arguments rejected above.

CCGI

goes on to assert that “JNS has not produced any evidence that
the parties to the APA ever executed any documents extending the
closing

past

April

11,

2013.”

The

attaches to this assertion is unclear.

legal

significance

CCGI

To the extent CCGI means

to argue that no enforceable contract was formed because JNS did
not obtain the City of Chicago’s acceptance within the period
specified by the APA, this argument is unavailing.

First, this

contingency relates to the performance of the APA, not to its
formation.
contract

“Whether an act is necessary to formation of the

or

to

the

performance

of

an

obligation

under

the

contract depends on the facts of the case.” Carollo v. Irwin, 959
N.E.

2d

citations

77,

84

(Ill.

omitted).

App.

Ct.

2011)

Where

the

intent

18

(quotation
of

the

marks

parties,

and
as

expressed in the language of the contract, is to form a binding
agreement, “agreed-on conditions only affect the duty to perform
and the

contract

is valid.”

Id.

In

this case,

while

the

transaction contemplated by the APA would not be consummated
until the closing contingencies were met, neither party had the
privilege

of

revocation

pending

the

fulfillment

of

the

contingencies, and no further expression of assent by the parties
was necessary to proceed with the transaction.

In such cases,

“it is quite incorrect to say that until the event occurs there
is no contract.”
1984).

McAnelly v. Graves, 467 N.E. 377, 380 (Ill. Ap.

Accordingly, whether JNS timely fulfilled its closing

contingency as specified in the APA relates not to whether an
enforceable contract was formed, but to whether it performed
under the terms of the contract.
If I construe CCGI’s argument as asserting that there is a
triable dispute as to whether JNS “complied” with the terms of
the APA, however,
without merit.

I

conclude

that

that argument

is

likewise

While it is true that the APA specified that the

closing contingencies be satisfied “on or about April 11, 2013,”
there is no dispute that parties’ agreement was not formed until
they executed the APA on April 17, 2013.

I agree with JNS that

the most likely interpretation is that the April 11 date was a
scrivener’s error, as the parties could not have intended to
specify a closing date that was before the formation of their
19

agreement.
evidence

But even taking the April 11 date at face value, the
is

uncontroverted

that

JNS

obtained

the

City

of

Chicago’s acceptance on April 30, 2013. CCGI has offered no basis
for concluding that JNS did not satisfy its closing contingencies
within the period contemplated by the APA’s express terms: “on or
around April 11.”

In any event, the authorities cited by both

parties acknowledge that specific performance may be appropriate
when the party seeking it has shown either “compliance” with its
contractual obligations, “or the fact that [it] is ready, willing
and

able

to

perform

[its]

part

of

the

contract.”

Happy

R

Securities, 988 N.E. 2d at 981 (citing McCormick Road Associates
L.P. II v. Taub, 659 N.E. 2d 52 (Ill. App. Ct. 1995).

There is

no dispute that JNS obtained the requisite acceptance from the
City of Chicago on April 30, 2013.

At this juncture, JNS has

done all that was required of it under the APA.8
CCGI’s

final

argument

is

that

JNS

is

not

entitled

to

specific performance because 350 Green’s breach of the APA can be
redressed by money damages.

In Illinois, specific performance of

a contract is an extraordinary remedy that is not available as a
8

CCGI also argues that “there is also a genuine issue of fact as
to whether the hosts that needed to provide their consent for
license agreements pursuant to part (b) of the APA ever provided
such consents.” As best I can understand this statement (there is
no “part (b)” of the APA), it appears to pertain to closing
contingencies that 350 Green was required to fulfill. There is no
dispute, however, that 350 Green failed to perform under the APA.
Its failure to do so is precisely why JNS seeks specific
performance.
20

matter of right. Rothner v. Mermelstein, 579 N.E.2d 1022, 1026
(Ill. App. Ct. 1991).

Nevertheless, I may, in my discretion,

grant specific performance as an equitable remedy when money
damages are inadequate.

Specific performance is appropriate, for

example, when the contract that was breached contemplates the
sale of unique assets. Chariot Holdings, Ltd. v. Eastmet Corp.,
505 N.E. 2d 1076, 1085 (Ill. App. Ct. 1987) (“The object of
courts of equity is to enforce rather than to evade contracts and
our

courts

have

repeatedly

held

that

courts

of

equity

will

enforce a valid contract for the sale of unique assets as a
matter

of

right.”).

The

undisputed

record

in

this

case

establishes that the Chicago Assets are unique.
The APA assigned to JNS all of 350 Green’s rights in the
Chicago Project, which includes the electric chargers (both those
that are already installed and those that have been purchased
with grant funds but are not yet installed), as well as 350
Green’s interests in leases, licenses, and agreements with the
hosts for the chargers.

Both the chargers and the agreements

relating to them are unique, as they are, undisputedly, integral
to the completion of the Chicago Project. See In re Bullet Jet
Charter, Inc., 177 B.R. 593 (Bkrtcy. N.D. Ill. 1995) (aircraft on
which work had been performed to meet contractual requirements
was unique under “totality of circumstances” test).

CCGI argues

that the assets are not unique because the City of Chicago has
21

not assigned the Chicago Project grant to either JNS or CCGI.
fail

to

see

the

logic

of

this

argument,

however,

I

because

regardless of which party is ultimately assigned the grant, there
is no genuine dispute that only the party that owns Chicago
Assets can complete the Chicago Project.
III.
For the reasons explained above, JNS’s motion for summary
judgment ordering specific performance of the APA is granted.
CCGI’s motion for summary judgment declaring the APA void is
denied.
ENTER ORDER:

_____________________________
Elaine E. Bucklo
United States District Judge

Dated: September 24, 2013

22