anti defamation usa - Dynegy v Multiut

Nachshon Draiman, Multiut charged with a $15 million judgment - opinion Case 1:02-cv-07446

(“Dynegy”) alleges that Multiut Corporation (“Multiut”) failed to pay for natural gas delivered in 2000, 2001, and 2002. Count I is a claim for breach of the parties 1994 sales agreement and seeks $15,348,244.72 plus interest from Multiut. Count II seeks the same amount from Multiut and also from defendant Nachshon Draiman, the sole owner of Multiut, under a guaranty agreement. Dynegy now moves for summary judgment on these two counts.1 It also moves for summary judgment on Multiut’s six counterclaims. These counterclaims, as well as several related affirmative defenses, allege generally that Dynegy’s invoices were inflated because they

* 1Dynegy has also filed several fraudulent transfer counts alleging that Draiman caused

Multiut to transfer over $21 million to himself, his family, and related business entities and that most of this money came from the sale of gas delivered by Dynegy. But the present summary judgement motion does not address these counts.

either failed to give Multiut price breaks allegedly agreed to in oral agreements or because they were based on an index price that Dynegy had manipulated by reporting false trades.

Multiut is an Illinois corporation with its principal place of business in Skokie, Illinois.

Nachshon Draiman is the CEO and controlling shareholder. Dynegy is a Colorado general partnership with its principal place of business in Houston, Texas. Dynegy was formerly known as Natural Gas Clearinghouse or NGC.

In October 1995, Dynegy (then called NGC) and Multiut entered into the Natural Gas

Sales Agreement. However, the agreement was dated January 1, 1994, and we will refer to it as the “1994 Agreement.” The parties entered into a similar agreement in 1988.

The 1994 agreement set forth the general terms and procedures that would govern the

parties’ relationship. The agreement anticipated that Multiut would periodically nominate (i.e. make a request for) certain amounts of natural gas, expressed in the industry as a “therm.” Under the agreement, Multiut was obligated to pay for all quantities nominated and tendered for delivery.

The 1994 agreement was a general agreement in the sense that it did not set forth a single

price or quantity to govern the specific nomination requests made throughout the parties’

relationship. Instead, the parties contemplated that they would agree to price and quantity terms as well as delivery dates in individual agreements during the course of their relationship.

The 1994 Agreement included a form, Exhibit B, on which these agreements would be memorialized.

In nominating gas under the 1994 agreement, Multiut was acting as a middle man. It

would purchase and secure gas as a whole from Dynegy and would then allocate it to individual

2D Ex. and M Ex. refer respectively to Dynegy’s and Multiut’s exhibits. DF refers to

Dynegy’s statement of material facts, and MF refers to Multiut’s statement of additional facts.

customers pursuant to agreements negotiated by Multiut with no input from Dynegy. In fact, Dynegy was not aware of the identity of these customers. Multiut used different pricing methods for different customers. The options included shared savings, an index plus price, a fixed contract price, or a cost plus price. (Draiman Aff. ¶ 13.) “Index plus” meant that the customer would pay the published index price plus an agreed-upon additional fixed charge. The “cost plus” option meant that Multiut’s customers paid the same amount for the natural gas that Multiut paid to Dynegy plus an agreed-upon additional fixed charge. As Draiman explained in his deposition, the pricing was a “dynamic procedure which involved a number of people with various different pricing methods and purchasing methods.” (D Ex. 2 at 31-32.)2

nominated various amounts of natural gas, at prices agreed to by the parties at the time of

nomination, and Dynegy delivered those amounts. In some cases, the specific agreements as to price and delivery were set forth on the form known as Exhibit B. In all cases, Dynegy also sent out a monthly invoice showing the total gas nominated and delivered to Multiut for the month.

It is undisputed that, within weeks of receiving these invoices, Joan Shultz at Multiut

reviewed them to “make sure they were accurate.” Schultz was Multiut’s managing Director of Operations from 2001 to 2004 and was responsible for nominating the gas and managing the department. After Shultz verified the invoices, she sent them to Lenore Kamien, Multiut’s bookkeeper, who would book the payment. Kamien was “a perfectionist” and knew the exact amounts owed to Dynegy. (DF 15.) Draiman also confirmed that the invoices initialed by

Schultz were accurate with respect to the volume of gas nominated and delivered and the prices agreed to by Multiut as set forth on the invoices. (DF 23.)

At some point, Multiut fell behind on its payments. A meeting was held on March 7,

2001, to determine Multiut’s outstanding balance. (DF 18.) Mark Ludwig and Ginger Wright attended on behalf of Dynegy, and Draiman and Kamien represented Multiut. (DF 18, 69.) At the meeting, Wright and Kamien reviewed Dynegy’s internal accounting records, Dynegy’s invoices, and Multiut’s internal accounting records and correspondence. Kamien agreed that, as of December 2000, Multiut owed Dynegy at least $1,620,178. (DF 19, 71.)

Turning to present dispute, Dynegy explains that it hired an expert to calculate the

amounts Multiut currently owes under the 1994 agreement. Dynegy’s expert began his

calculation with the $1,620,178 figure from above and (i) added in the amount of unpaid

invoices, using only invoices that had been initialed by Schultz or her predecessor at Multiut, and (ii) subtracted the total payments made by Multiut since 2001, a figure based on cancelled checks produced by Multiut and Dynegy’s accounting records. (DF 21, 25.) Multiut did not depose Dynegy’s expert, nor submit a report of its own expert to challenge the calcuations of these amounts. In sum, Dynegy’s expert concluded that Multiut owes $13,693,943.18 in principal and $1,654,301.54 in interest as of October 1, 2004.

Based on the documents submitted by the parties, we find that no dispute exists that

Multiut nominated and Dynegy then delivered the natural gas in the amounts and prices set forth on the invoices and other supporting documents, all as summarized by Dynegy’s expert. As Multiut agrees, no dispute exists about the arithmetic. The unpaid invoices and interest add up

3The parties agree that, if Multiut is liable under the breach of contract claim in Count I,

then both Multiut and Draiman are also liable under the guaranty claim in Count II.

4Because the parties evaluate these claims under Illinois law, we will do the same.

to $15,348,244.72, plus interest accruing from October 1, 2004. There is likewise no dispute that the parties agreed at the time to the particular prices set forth on those invoices.3

In its counterclaims and related affirmative defenses, Multiut argues for the first time that

the various amounts and prices it agreed to years before were inflated. It claims that it was unaware of this fact because it believed it could “trust” Dynegy. (Resp. at 3.) Multiut also asserts two counterclaims specifically relating to Nicor Energy, a subsidiary Dynegy formed that competed with Multiut. One counterclaim alleges that Dynegy employees learned confidential information from Multiut when the parties had discussions in 1998 about the possibility of Dynegy buying Multiut. The other is a Robinson-Patman Act claim alleging that Dynegy sold gas to Nicor on more favorable terms. Finally, looming over all the counterclaims is a broad allegation that Dynegy’s invoices should be reduced to reflect its alleged participation in manipulating the price of the natural gas indexes that were used, in some cases, to set the prices for sales to Multiut.

agreements.4 To be enforceable, oral agreements must at least include an offer and acceptance, consideration, and definite and certain terms. Association Benefit Services, Inc. v. Caremark Rx, Inc., 493 F.3d 841, 849-850 (7th Cir. 2007) (“No contract exists under Illinois law, and, indeed, under principles of general law, if the agreement lacks definite and certain terms; nor is a

contract formed by an offer that itself lacks definite and certain material terms and does not require such terms to be supplied by acceptance.”). The requirement that the contract contain “definite and certain terms” means that, even if the parties intended to enter into an agreement, no contract exists if the court cannot figure out what are the essential terms. Id. at 850.

Although we address each counterclaim individually below, we note that they generally

suffer from two primary problems. First, Multiut relies almost exclusively on its own unilateral “understanding” of vague conversations that took place many years ago, understandings that were never put in writing and that were never explicitly acknowledged by Dynegy. Second, for all but one of these counterclaims, Multiut has provided no evidence -- either documents or an expert witness -- to establish damages.

Multiut’s first counterclaim alleges that the parties orally agreed to “lock in” prices for

certain Multiut’s customers that were buying from Multiut on a fixed-price basis. The

Dynegy admits that the parties discussed this issue but argues that they never reached any

agreement. Dynegy secondly argues that, even if they did, such an agreement would be barred by statute of frauds. Finally, Dynegy argues that Multiut has not presented evidence of damages.

Based on the first and third arguments, we find in Dynegy’s favor on this counterclaim.

To support its allegation that the parties entered into this alleged agreement, Multiut

Fact 66: On or about September 17, 2001, Multiut supplied Dynegy with a list of

contracts with end users for which Multiut had agreed to provide gas at fixed prices.

fixed price at which Multiut agreed to supply gas for the duration of Multiut’s

fixed price contracts. Draiman testified that Pete Pavluk informed him along the

Fact 69: Multiut relied on this understanding and did not seek out other suppliers

would not supply the gas at those fixed prices the market price for gas had risen to

a point where [] Multiut paid more for gas than it received from its fixed price

The evidentiary support for these three facts is the September 17th letter and Draiman’s

This evidence, even taken in a light favorable to Dynegy, fails to show that the parties

intended to enter into a binding contract or show what the terms of such an agreement were.

Draiman’s testimony, as set forth in Fact 68, is that he was told that Dynegy would “work on” locking in prices. This statement is far too equivocal by itself to establish a meeting of minds, as it is ambiguous about whether Dynegy was merely considering the issue or alternatively making a vague but non-binding aspirational statement or, as Multiut alleges, was intending to enter into a binding contract. The rest of Draiman’s testimony is similarly vague about exactly what was said in this conversation. When asked whether either Pavluk or Ludwig ever “explicitly” stated that Dynegy would agree to lock in prices, Draiman conceded that they never made any explicit statement. (M Ex. Q at 303.) Instead, Draiman fell back on his claim that it was his “understanding” that the parties had reached an agreement. But a party’s subjective belief is not enough. Ocean Atlantic Dev. Corp. v. Aurora Christian Schools, Inc., 322 F.3d 983, 995 (7^th Cir. 2002).

5Even if the parties intended to enter into an agreement, the terms of the agreement are

not clear. For example, how long would the agreement last? Draiman states in his affidavit (¶ 18) that it would have been for a “particular time period,” but so far as we can tell, he never stated what that period would be.

The second piece of evidence, the September 17th letter, is also inconclusive and raises

more questions than it answers. To begin with, the timing of the letter is unclear. The

September 17th letter states in the first sentence that it was being sent “following” the meeting.

(M Ex. DD.) In other words, contrary to the impression created by the order of the three facts quoted above, the September 17th letter was not presented before the meeting as a type of offer, but was sent after the meeting. Yet, the letter does not acknowledge that the parties had just reached an agreement. The letter merely provides a list of Multiut’s fixed-price customers for Dynegy’s “review,” a word suggesting that the parties were only at a preliminary discussion stage. This interpretation is underscored by the fact that, a few months after receiving the September 17th letter, Dynegy told Draiman that it would not agree to lock in prices. (Draiman Aff. ¶ 25.) Draiman claims that Dynegy’s rejection was “contrary to what [Draiman] had earlier understood,” but his unsubstantiated belief is not a basis for concluding that the parties had entered into a binding agreement, especially when all of the available evidence suggests that the parties were only involved, at most, in negotiations.5

We also find that summary judgment is warranted for the separate and independent

reason that Multiut has not provided any evidence of damages. The parties agree that Multiut must come forward with at least some evidence on summary judgment to show that it would be able to prove damages with a “reasonable degree of certainty” without relying on “conjecture or speculation.” See generally Dunkin’ Donuts Inc. v. N.A.S.T., Inc., 428 F.Supp.2d 761, 767 (N.D.

Ill. Dec. 28, 2005) (summarizing cases) (“a non-movant’s failure to produce sufficient evidence of the damages element of its claim calls for the entry of summary judgment against that party”). As Judge Shadur concluded in Dunkin’ Donuts, a vague answer with no coherent explanation “totally flunks the Rule 56(e) requirement of admissible evidence.” Id. at 770 (emphasis in original.)

Here, Multiut has not provided a way to calculate damages. During discovery, Multiut

failed to comply with Rule 26's requirement that it provide a computation of damages. See D.

Reply at 14-19 (summarizing discovery history). Multiut also has not provided an expert opinion on the damages related to its first counterclaim nor to any of the other counterclaims except the sixth one. Instead, Multiut relies solely on an affidavit of Draiman that was submitted after discovery closed. Dynegy argues that this affidavit should not be considered because Multiut failed to make timely disclosures during discovery. We agree. Multiut has not provided any explanation for its failure to make earlier disclosures, and to allow it to make late disclosures now, after a lengthy discovery process, would prejudice Dynegy. In sum, Multiut has not met its burden with regard to damages on this counterclaim.

The sixth counterclaim also involves an alleged oral agreement. The substance of the

Multiut would be charged (i) a price either equal to or 1/2 cent per therm higher

than the index price, or (ii) the lowest price contemporaneously being charged by

6As Multiut artfully puts it in its brief (at p. 13), the parties entered into a “series of

(Resp. at 36.) The latter provision is referred to by the parties as a “most favored nation”

provision. Again, it is undisputed that there is no written document of any kind evidencing this agreement.

Dynegy makes similar arguments against this claim, asserting that it is barred by the

statute of frauds; that no evidence proves that an agreement was reached; and that any agreement would have been superseded by the subsequent specific agreements on price. As explained below, we agree with these arguments.

The details of this alleged agreement are hazy. It is hard to reconstruct when it was

made. The alleged agreement appears to be a hybrid of two oral agreements made many years apart.6 The second half of the agreement -- the most favored nation (“MFN”) provision -- is an “understanding” that supposedly existed since “the inception of [the parties’] relationship.” (MF 54.) This would mean that the understanding came about sometime around 1988. Multiut provides no information about what day or month the parties agreed to this provision, where they were, who was present, or what was said. The first half of the agreement -- tying the price to a certain amount above the index -- was allegedly entered into “in the mid-1990s.” (Resp. at 13; MF 56.) Again, few details are provided. Multiut cannot narrow the date the agreement was made down to even a specific year. Further uncertainty exists over how the two separate agreements are supposed to work together as they each set forth a different pricing structure,

raising a question about which one takes precedence over the over in the event of a conflict.

Unlike the September 17th alleged agreements, these two oral agreements are broad and

cover all nominations. As such, it would be reasonable to expect that the parties would have included them in their written agreements given that they purported to set forth the general terms applicable to all nominations. The MFN provision allegedly was created before the 1988 and 1994 written agreements were signed. Yet neither agreement includes the provision.

The 1994 agreement is based on the assumption that all prices would be negotiated on an individual, case by-case basis for each nomination, an assumption at odds with the existence of the MFN provision. Draiman now claims that Dynegy’s agreement to the MFN provision was a “critical” pre-condition for Multiut entering into the 1988 written agreement. See Draiman Aff ¶ 16. If so, then surely he would have insisted that this critical provision be included in that agreement. The only reasonable explanation for why it was not is that Dynegy never agreed to it.

This conclusion is also supported by Shkop’s testimony. He said that Dynegy did not agree to include the MFN provision in the written agreements because of problems with other suppliers and with its parent company. (M Ex. L at 20.) For all the above reasons, the evidence fails to provide any basis for believing that Dynegy intended to enter into a binding agreement as alleged by Multiut.

Specifically, Dynegy failed to charge for interest in the invoices between March 1999 and

December 2000 because, Dynegy explains, of an oversight that occurred with a change in

employees. Multiut argues that the failure to send out invoices for this period constituted an implied agreement (or waiver) not to collect these interest payments. (MF 80.) In response,

7The reconciliation provision in the 1994 agreement provided that the parties would have

up to 24 months to rectify any mistakes in the billing process. See Ex. DD, Article V-A(2) The existence of this provision would make it even more unreasonable to rely solely on an unverified belief that charges were being waived.

Dynegy argues first that the mere failure to send out an invoice is not an agreement to forego collection of these amounts and secondly that Multiut has failed to provide evidence of damages.

We agree with Dynegy’s first argument. Regardless of which legal theory it is relying on,

Multiut acknowledges that it must show that it relied to its detriment on the implicit agreement or waiver. Yet, as Dynegy has demonstrated (see DF 66), the decisionmakers at Multiut had no knowledge of any agreement by Dynegy to waive charges. Most notably, Draiman was not involved in the making of any such agreement and did not know anyone who was. Although Lenore Kamien did notice that Dynegy had omitted the charges on some invoices, she only testified that she “assumed” that no interest was due. (MF 81.) And there is no evidence that she communicated with Draiman on this point.7

As for damages, although Multiut has not presented any evidence of damages, its failure

with regard to this counterclaim is not fatal because the amount of interest charges has already been established by Dynegy first. Therefore, there would be no need for Multiut to provide proof of these amounts.

In its fourth counterclaim, Multiut alleges that the parties intended in their 1994

agreement that Multiut would not have to pay for uncollectible accounts from end users because Multiut was merely acting as an agent. In other words, Dynegy bore the risk of uncollectible accounts. In response, Dynegy acknowledges that the 1994 agreement includes two general

provisions stating that Multiut was acting as an agent to the end user principals, but Dynegy argues that this language was included merely to help Multiut avoid sales tax obligations that it thought were due if it took title to the gas before selling it to its customers. (DF 2.) The parties agree that question of interpreting the meaning of the 1994 agreement is a legal question.

As both sides concede, the 1994 agreement contains no provision explicitly addressing

the specific question of which party is responsible for uncollectible accounts of end users.

Multiut relies on general language in the first paragraph of the 1994 agreement stating that Multiut is acting as an agent of the ultimate consumers of the natural gas and that Multiut is performing according to instructions from the end-user principals. (MF 34-35.) Dynegy in turn relies on several provisions in the body agreement.

We start with the general language relied upon by Multiut and do so by quoting the entire

The purpose of this document is to set forth the understanding and Agreement between [Dynegy] and [Multiut], acting in its role as the duly authorized agent and representative of ultimate consumers and users of the natural gas delivered to Multiut under this Agreement. Seller and Multiut acknowledge that Multiut is acting as an authorized agent and is performing under this Agreement in accordance with the instructions of its principals. Except as specifically provided in this Agreement, Multiut and its principals, as ultimate consumers and users of the gas, are referred to collectively as “Buyer.” Seller agrees to sell and deliver gas to Buyer pursuant to the following terms and conditions[.]

While this paragraph does contain two statements that Multiut is acting as an agent to certain end users, this language is general and not connected to any operative provision in the main part of the agreement.

Significantly, this first paragraph defines the term “buyer” as being both Multiut and the

end users. This collective definition by itself contradicts Multiut’s argument that it was not a

8The term “Buyer” is used throughout the agreement in a way that would only make

sense if Multiut were considered a buyer. The agreement states, for example, that the Buyer shall have a right to make daily nominations of gas. This could only refer to Multiut as no evidence suggest that end users nominated gas or interacted with Dynegy in any way.

9Multiut’s interpretation would create an awkward incentive system and also one difficult

to enforce. How would a court be able to determine if Multiut was in breach of its duty

buyer.8 Furthermore, when this definition of buyer is applied to paragraph 5, which states that the “Buyer shall be obligated to pay for all quantities nominated,” it can only be interpreted to mean that Multiut, as a buyer, must pay for “all” the gas nominated. The agreement contains no other language that excludes uncollectible accounts from this broad provision.

This conclusion is reinforced by other language in the agreement. The agreement states

that Multiut is “responsible for collecting payment from its principals.” (Ex. DD; Article VA(2).) Reading this provision in a straightforward way, we find that it creates a strong

presumption that Multiut is “responsible for” uncollectible accounts. Put differently, if the parties had a contrary understanding, you would expect that they would have mentioned that here to make clear that Multiut was only required to try to collect payments and was not responsible if its effort failed.9 This presumption is also reasonable because the agreement elsewhere specifically states that Dynegy is responsible for certain things. For example, Article IV-A states that Dynegy must pay “all royalties, taxes and other sums due on production[.]” (Ex. DD, Article IV-A.)

There is no contextual evidence to the contrary. Multiut argues in its response brief (at

p.25) that the “circumstances surrounding the negotiation and performance” of the parties’ agreement created an “understanding” that Multiut would not be responsible for non-paying

10In his deposition, Draiman stated that it was his understanding that the parties would

“share” the burden of uncollectible accounts. (MF ¶ 49.) This statement is in conflict with

Multiut’s current position that Dynegy would be solely responsible and it also raises a question of exactly how they would share the burden.

customers. But it has no evidence that Dynegy agreed to this understanding.10 Draiman testified that no one from Dynegy ever said that Multiut would not be responsible if customers did not pay. (DF 76.)

As for Dynegy’s alternative argument that Multiut did not produce evidence of its

damages, Multiut states that the uncollectible accounts were $2,761,735.45. (MF 129.) This amount comes from Draiman’s affidavit (¶ 29). However, as noted above, Multiut failed to disclose this information in discovery and may not rely on it now.

In 1997, Dynegy expressed an interest in purchasing Multiut, and the parties entered into

a confidentiality agreement to allow Dynegy to investigate the possibility. (1st Am CC ¶¶ 16-22.) As part of this process, several Dynegy employees were given confidential and proprietary information, including customer lists, copies of contracts with customers, etc. Dynegy, after receiving and studying the Multiut information, ultimately purchased Nicor and Illinova, two competitors of Multiut. Multiut alleges that the Dynegy employees “inevitably disclosed” confidential information to Nicor and Illinova and that, as a result, those companies were able to win customers from Multiut.

Dynegy raises a number of arguments in response, arguing that no evidence exists that

the employees received confidential information and arguing that the “inevitable disclosure”

doctrine only applies if an employee of Multiut was hired by Dynegy. Dynegy also argues that Multiut has no evidence of damages.

We find that summary judgment is warranted on the latter ground. Although Multiut

alleges that it lost “profits and other damages” of more than $5 million from the alleged breach of the confidentiality agreement, Multiut has provided no evidence to quantify damages.

Multiut’s expert stated in his deposition that he did not do any work to calculate damages

relating to this counterclaim. (DF 65.) We have already found that Draiman’s affidavit may not be considered. And Draiman admitted that he does not know the number of customers that allegedly left Multiut for Nicor while also admitting that the loss of business was attributable to, among other things, his brother’s involvement, service issues, customer relationship issues, and the size of the customer. See DF 92-93.

Asserting a claim under the Robinson-Patman Act, 15 U.S.C. § 13(a), Multiut alleges that

Dynegy sold gas at lower prices to competitors of Multiut, one of which was Nicor. Dynegy moves for summary judgment on three grounds: (i) Multiut cannot show that the gas sold to Nicor and Multiut was of “like grade and quality”; (ii) Multiut failed to provide a computation of its alleged injury; and (iii) Multiut failed to show that it had standing to assert an RPA claim.

As to the first argument, Dynegy argues that what was being sold was not merely the

natural commodity of natural gas but also inextricably included related services that varied between Multiut and Nicor, making them different cases. Multiut responds that this argument is really an affirmative defense of cost justification and that this is a fact question. Because we are

not convinced by the authorities submitted by Dynegy on this argument, we find that summary judgment is not warranted on this ground.

We are also not persuaded by the third argument that Multiut is precluded from asserting

an RPA claim because it was only an agent. As noted above, Dynegy has already argued that Multiut was not merely an agent but was operating more as a buyer in its own right. We have agreed with that argument based on our interpretation of the language of the contract.

As Dynegy itself has argued in its reply brief, “Multiut is one or the other, not both.” (Reply at 35.)

However, as to the second argument, we agree that Multiut has failed to show evidence

of injury. As described in Dynegy’s opening brief, the Supreme Court has held that a private plaintiff seeking damages must not only meet the essential elements of a § 2(a) claim but also must show that it suffered injury. See Mem. at 31 (citing J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 562 (1981) (“proof of a violation does not mean that a disfavored purchaser has been actually ‘injured’ within the mean of § 4"). Dynegy points out that Multiut has provided no evidence of injury. In its one-paragraph response, Multiut only makes a conclusory assertion that it lost sales and profits. See Resp. at 49. But it has no evidence. First, Multiut specifically told its expert not to do any work on, or provide any opinions with respect to, the Robinson-Patman Act claim. Second, as noted above, although Draiman claims in an affidavit that his company lost customers to Nicor, he did not know of a single customer who had left Multiut for Nicor, and he also admitted that Multiut lost customers because of unrelated issues.

Multiut spends much time in its response arguing that Dynegy manipulated the index

prices. See Resp. at 16-24. This allegation is based largely on an investigation conducted by the Federal Energy Regulatory Commission (“FERC”) in 2002 and 2003. FERC concluded in a lengthy report that a number of major energy companies reported false price and volume information to industry publications, such as Gas Daily and Inside FERC, that compiled price indexes. (M Ex. A.) Fifteen Dynegy traders were involved in some way, including one who was later convicted for activity relating to price manipulation. As a result of its conduct, Dynegy entered into a settlement with FERC valued at approximately $282 million. (MF 14.) Multiut argues that Dynegy’s involvement either precludes recovery altogether or that it requires that the total amount be reduced by “invoices tainted by that manipulation.” (Resp. at 16.)

The legal theory underlying this allegation is not clear. At one point, Multiut suggests

that Dynegy must show as part of its prima facie breach of contract case that the invoices were not tainted by manipulation. See Resp. at 21. But we cannot find any legal support for the assertion that Dynegy must disprove fraud as part of its initial case. Multiut also argues that the price manipulation allegation relates to its first affirmative defense. (Resp. at 22.) This defense, entitled “Material Breach,” alleges that Dynegy “overcharged for gas . . . by failing to properly apply the index price [and] by failing to charge Multiut . . . the lowest price contemporaneously being charged . . . to Multiut’s competitors.” (Docket # 81, ¶ 10.) This affirmative defense is thus a restatement of the sixth counterclaim. Yet, as explained above, we have already granted summary judgment on that counterclaim, finding that the parties did not have any general

agreement to base prices on index prices. We are therefore unclear at the outset as to how the price manipulations allegations fit into any viable legal theory.

In its reply brief Dynegy offers five specific reasons why the manipulation allegations

should not be considered: (1) they are barred by res judicata based on Judge Pro’s dismissal of similar claims in the multi-district litigation in Nevada; (2) Magistrate Judge Mason already determined that evidence concerning price manipulation is not admissible or even likely to lead to admissible evidence; (3) the alleged manipulation only concerned California and western markets, but not price manipulation of the Chicago city-gate indexes that were used as the indexes by these parties; (4) the doctrine of unclean hands is not an affirmative defense to Dynegy’s monetary claims; and (5) Multiut did not plead (and therefore waived) these affirmative defenses. As explained below, we find that summary judgment should be granted on the first and third arguments.

manipulation allegations are vast. They cover a wide and complex group of participants and a broad and factually intense subject area. The FERC report is over 400 pages and was completed after a year-long investigation. It discusses the activities of many wholesalers, including Aquila, AEP, El Paso Merchant Energy, Williams, Reliant, Duke, Mirant, Coral, CMS, and Sempra Energy Trading. (M Ex. A at ES-7-8.) It focuses on both the electricity and natural gas markets and concludes that they were “inextricably linked.” (M Ex. A at ES-1.) Multiut’s theory is that all these companies together defrauded the entire marketplace. (Resp. at 21.) In short, if these allegations are added to this case, they would turn a relatively straightforward breach of contract case involving two parties into a sprawling nationwide fraud case implicating numerous parties.

As for Dynegy’s argument that these claims are barred by res judicata, we agree with the

reasons and authorities offered by Dynegy. See Reply at 4-7. As summarized therein, Judge Pro ruled that Multiut’s claims for fraud, violations of the Illinois Deceptive Business Practices Act, and violations of the Sherman Act, all of which were based on the same facts as the manipulation allegation here, should be dismissed under the filed rate. See Reply, Ex. 6 – In Re Western States Wholesale Natural Gas Antitrust Litig, MDL 1566, Order dated May 15, 2006.

In granting Dynegy’s motion to dismiss, Judge Pro held that the “nature of the damages sought would require this Court to determine the just and reasonable price of natural gas absent the alleged misconduct which forms the basis of Plaintiff’s Complaint, and therefore would be a violation of the filed rate doctrine.” (Order at 12.) As Dynegy has demonstrated, there is an identity of the parties; an identity of the causes of actions as the manipulation allegations here are the same as in the Nevada case; and there is a final judgment on the merits. Multiut’s complaint in the Nevada action contains the same allegations asserted here. See Dynegy Reply Ex. 5. If Multiut were allowed to litigate its manipulation claims here, it would defeat the purposes of res judicata.

We also agree with Dynegy’s argument that the FERC report relates to the manipulation

of the California and western market indexes. Index prices existed for 11 distinct geographic areas of the United States and Canada and also for 100 separate delivery points within those geographic areas. See Dynegy Reply at 9. The sales at issue here related only to the “Chicago City Gate” index prices. And, as Dynegy has argued in its reply brief, none of the investigations described in the FERC report and other exhibits submitted by Multiut address a single instance of a false price or volume report by a Dynegy employee with respect to Chicago city gate price

indexes. Accordingly, we find that the alleged manipulation is too remote to be connected to a specific sale between these two parties.

This argument points to a larger problem with the manipulation allegations. The causal

chain that Multiut seeks to prove is too attenuated and diffuse. Although not dispositive by itself, Magistrate Judge Mason’s observation in discovery is nonetheless apt: “[t]he relevance of [the price manipulation evidence] is premised on the implausible assertion that Dynegy, one of the many participants in the natural gas market, could independently influence the index price.”

(12/02/03 Order.) As this observation suggests, Dynegy was only one of many players in this market and could not control the entire market by itself. Moreover, it is not clear how damages would apply in that Multiut’s theory is that the fraud was perpetrated on the entire marketplace so that the price charged by all suppliers presumably would have been equally affected by the alleged manipulation. And it is also not clear in Multiut’s response brief whether the higher charges were simply passed through to end users. As Draiman stated in his affidavit, some customers were charged on either a “cost plus” or an “index plus” method in which the end user paid the index price plus an additional charge to Multiut. These questions, and many others, are not explained clearly in Multiut’s response brief. In sum, for all the above reasons, the price manipulation allegations, even if true, do not preclude summary judgment on either Dynegy’s

For the reasons set forth above, defendant’s motion for summary judgment is granted,

and judgment is granted to plaintiff, and against defendants Multiut and Nachshon Draiman, on Counts I and II of plaintiff’s amended complaint, in the amount of $15,348,244.72 plus interest accruing from October 1, 2004. Judgment is granted for plaintiff and against defendants on Counts I through VI of defendants’ counterclaims.

(A $22 million dollar lawsuit for fraud and insolvency – numerous contempt of court)

MULTIUT CORPORATION, an Illinois
Corporation and NACHSHON DRAIMAN, )
an Illinois Resident, FUTURE ASSOCIATES, )
an Illinois General Partnership, )

Dynegy Marketing and Trade ("Dynegy"), by its attorneys, complains of Multiut Corporation ("Multiut"), Nachshon Draiman ("Draiman"), and Future Associates, as follows:

1. Dynegy is a Colorado general partnership with its principle place of business in Houston, Texas. The only partners of the partnership are Dynegy GP, Inc., a Delaware corporation which maintains its principle place of business in Texas, and DMT Holdings, LP, a Delaware limited partnership (f7k/a NGC GP, Inc.).

2. The only partners of DMT Holdings LP are (1) DMT G.P., LLC, a Delaware limited liability company and (2) DMT L.P., LLC, a Delaware limited liability corporation.

3. The sole member of DMT G.P., LLC is DMT Holdings, Inc., a Delaware corporation which maintains its principle place of business in Texas.

4. The sole member of DMT L.P., LLC is DMT Holdings, Inc., a Delaware corporation which maintains its principle place of business in Texas.

5. Multiut is an Illinois corporation with its principle place of business located in Cook County, Illinois.

6. Future Associates has its principal place of business located in Cook County, and is, upon information and belief, an Illinois general partnership.

8. This Court has jurisdiction, under 28 U.S.C. § 1332(a)(l), because the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states.

9. Venue is proper, under 28 U.S.C. § 1391(a), because the defendants reside in and a substantial part of the events or omissions giving rise to the claim occurred in this judicial district.

10. On or about January 1, 1994, Multiut signed a Natural Gas Sales Agreement with Natural Gas Clearinghouse ("NGC") for the purchase and sale of natural gas (the "Agreement"). A true and correct copy of the Agreement, with Exhibits A and B, is attached as Exhibit 1.

12. Under the Agreement, Multiut "[acted] as the duly authorized agent and representative of ultimate consumers and users of natural gas delivered to Multiut under the Agreement." (Agreement, page 1.)

13. Under the Agreement, Multiut is "responsible for collecting payment from its principals. The payment to [Dynegy] by Multiut on behalf of Multiut's principals shall be due on

the twentieth (20^th) day of the month, or as to statements delivered after the tenth (10^th), within ten (10) days after receipt of such statements." (Agreement, page 5, Article V-A (2).)

14. For natural gas Dynegy delivered to Multiut through December 2000, there existed an outstanding balance owed to Dynegy by Multiut of $1,664,501.06 (after offsets for payments made by Multiut through March 1, 2001).

15. Dynegy sent and/or Multiut received monthly invoices for the purchase and sale of natural gas under the Agreement from January 1, 2001 through December 31,2002 (the "Invoices").

16. Multiut breached the Agreement by failing and/or refusing to pay the Invoices in full when due.

17. As of April 30,2003, the unpaid principal balance due to Dynegy under the Invoices, after application of payments in accordance with Article V-A(3) of the Agreement, is $12,504,912.51 (the "Unpaid Principal Balance").

18. Under the Agreement, "Should Multiut fail to pay all of the amount of any bill when the same becomes due, Multiut shall pay [Dynegy] a late charge on the unpaid balance that shall accrue on each calendar day from the due date at a rate equal to two percent (2%) above the then-effective monthly prime commercial lending rate per annum announced by The Federal Reserve Bulletin from time to time . . . . " In addition, "the late charge . . . shall compound monthly." (Agreement, page 5, Article V-A (3).)

19. Under the-Agreement, "If either principal or late charges are due, any payments thereafter received shall first be applied to the late charges due, then to the previously outstanding principal due and lastly, to the most current principal due." (Agreement, page 5, Article V-A (3).)

20. As of April 30, 2003, the amount of interest due, in accordance with Article V-A(3) of the Agreement, is $593,997.74 (the "Interest").

WHEREFORE, Dynegy requests entry of a judgment in its favor and against Multiut, for $12,504,912.51, plus interest, through the date of judgment, in an amount in excess of 5593,997.74, and such other relief as the Court deems appropriate.

22. Dynegy repeats and reasserts the allegations of paragraphs 1 through 21, inclusive, as paragraph 22.

23. On or about October 31,1995, Draiman and Multiut executed a Guaranty (the "Guaranty"). A true and correct copy of the Guaranty is attached as Exhibit 2.

24. Under the Guaranty, Draiman and Multiut, jointly, severally, and unconditionally "[guaranteed] the payment to NGC promptly when due, or upon demand thereafter, pursuant to the terms of the Agreement, the full amount of all obligation or indebtedness due to NGC under the Agreement."

25. Draiman and Multiut are jointly and severally liable for their obligations under the Guaranty.

26. Draiman and Multiut breached the Guaranty by failing to pay after demand, when due, the Unpaid Principal. Balance and the Interest.

WHEREFORE, Dynegy requests entry of a judgment in its favor and against Multiut, for $12,504,912.51, plus interest, through the date of judgement, in an amount in excess of $593,997.74, and such other relief as the Court deems appropriate.

27. Dynegy repeats and reasserts the allegations of paragraphs 1 through 26, inclusive, as paragraph 27.

28. At all relevant times, Draiman has been a director, officer and/or control ling shareholder of Multiut.

29. At all relevant times, Draiman has been a general partner in Future Associates or otherwise had authority and/or control over the business affairs of Futures Associates or an entity that had authority over the business affairs of Futures Associates.

30. Since at least January 1999, Multiut failed to make timely payment, when due, for some or all of the natural gas delivered by Dynegy.

31. On March 7, 2001, Ginger Wright of Dynegy and Lenore Kamien of Multiut ' agreed that Multiut owed Dynegy approximately $11,000,000, excluding interest.

32. On September 5, 2001, Dynegy representatives Pete Pavluk and Mark Ludwig met with Multiut representatives Lenore Kamien and/or Nachshon Draiman at Multiut's offices to discuss the amount owed by Multiut.

33. At that meeting, Mr. Draiman said that Multiut did not have funds sufficient to pay the debt owed and that Multiut would propose a payment plan by September 17, 2001.

34. In a September 17, 2001 letter, Multiut proposed a payment plan by which it would make monthly payments, from October 2001 through March 2002, in order to pay down the amount owed to Dynegy. The proposed payments ranged from $600,000 in some months to $1,800,000 in other months. According to Mr. Draiman, Multiut was, "insurefd] [sic] an additional annual profit of $2,000,000" and that, "in the meantime, [Multiut] was working on bank financing as well as funds from private sources for capital infusion."

35 . In an October 4, 2001 letter to Multiut, Dynegy responded to Multiut's September 17, 2001 proposal by asking for "a detailed formal plan by no later than Wednesday, October 10, 2001 that outlines bringing your account balance current by no later that [sic]-January 15, 2002."

36. In an October 12, 2001 letter, Multiut responded to Dynegy's October 4, 2001 letter by proposing "weekly payments for October through January." The weekly payments proposed by Multiut totaled $7,700,000.

37. Multiut did not make all the weekly payments described in its October 12, 2001

38. Multiut's check , dated August 23, 2001, made payable to Dynegy for $300,000, was returned for insufficient funds.

39. Multiut's check, dated October 26, 2001, made payable to Dynegy for $150,000, was returned for insufficient funds.

40. Multiut's check, dated November 9, 2001, made payable to Dynegy for $200,000, was returned for insufficient funds.

41. Multiut check no. 1946, made payable to Dynegy for $200,000 and deposited on December 7, 2001, was returned twice due to insufficient funds.

42. On January 8, 2002, Multiut claimed it could not pay the amounts owed to Dynegy because of slow payment by the government in connection with Mr. Draiman's nursing homes.

43. On January 31, 2002, Multiut told Dynegy that it would make a $200,000 payment while it worked to raise cash through a factoring company and while it attempted to arrange a line of credit with Bank Leumi.

44. Multiut never raised cash through a factoring company or arranged a line of credit with Bank Leumi in 2002 or 2003.

45. In 2002 and 2003, Multiut did not have cash sufficient to pay the Invoices when due.

46. During 2000 and 2001, Multiut had creditors, in addition to Dynegy, to whom it did not make payments when due in the normal course of its business.

47. On June 19, 1998, Multiut entered into a Natural Gas Sales Agreement with WPS Energy Services, Inc. (“WPS”) for the purchase and sale of natural gas.

48. By June 2000, Multiut was indebted to WPS in the amount of $1,625,472 for natural gas delivered to Multiut prior to May 2000.

49. On September 27, 2000, Multiut gave WPS its promissory note in the amount of $1,570,337.87 (the “WPS” Promissory Note).

50. The WPS Promissory Note was a reaffirmation by Multiut of its debt to WPS incurred under the terms of the Natural Gas Sales Agreement between WPS and Multiut.

51. In the summer and fall of 2001, Multiut did not make payments, when due, in accordance with the WPS Promissory Note.

52. On September 27, 2001, WPS filed a lawsuit against Multiut alleging that Multiut defaulted on its obligation under the WPS Promissory Note by failing to make the required payments due on July 10, 2001, August 10, 2001 and September 10, 2001.

53. According to Multiut’s 2002 tax return, Multiut transferred approximately $2,000,000 (or more) to Future Associates, Draiman and/or other entities, including Draiman’s nursing home, hotel and/or other business ventures, at some time during 2001 when Multiut was indebted to Dynegy.

54. Multiut did not receive reasonably equivalent value for the transfer described in paragraph 53.

55. In the years 1999 through 2003, Multiut transferred cash or other assets to Future Associates, Draiman and/or other entities, including Draiman's nursing home, hotel or other business interests when Multiut was indebted to Dynegy.

56. Multiut did not receive reasonably equivalent value for the transfers described in paragraph 55.

57. When Multiut made the transfers described in paragraphs 53 and 55 (the "Transfers"), Multiut was insolvent and/or became insolvent as a result of the Transfers.

WHEREFORE, Dynegy requests entry of an order granting judgment in its favor and against Multiut, for $12,504,912.51, plus interest, through the date of judgment, in an amount in excess of $593,997.74; voiding the fraudulent transfers and returning the Transfers to Multiut to be used to satisfy the debt to Dynegy; and such other relief as this Court deems appropriate.

59. Dynegy repeats and reasserts the allegations of paragraphs 1 through 58, inclusive, as paragraph 59.

60. The Transfers were made with actual intent to hinder, delay or defraud Dynegy, a creditor of Multiut and as-such constituted fraudulent conveyances in violation of applicable laws.

used to satisfy the debt to Dynegy; punitive damages and such other relief as this Court deems appropriate.

61. Dynegy repeats and reasserts the allegations of paragraphs 1 thorough 58, inclusive, as paragraph 61.

62. Future Associates accepted the Transfers of the assets without having provided adequate consideration for the Transfers.

WHEREFORE, Dynegy requests entry of order granting judgment in. its favor and against Future Associates, voiding the fraudulent transfers and returning the money to Multiut to be used to satisfy the debt to Dynegy; and such other relief as this Court deems appropriate.

63. Dynegy repeats and reasserts the allegations of paragraphs 1 through 58, inclusive, as paragraph 63.

64. Draiman accepted the Transfers without having provided adequate consideration or reasonably equivalent value for the Transfers.

WHEREFORE, Dynegy requests entry of order granting judgment in its favor and against Nachshon Draiman, voiding the fraudulent transfers and returning the money to Multiut to be used to satisfy the debt to Dynegy; and such other relief as this Court deems appropriate.

65. Dynegy repeats and reasserts the allegations of paragraphs 1 through 58, inclusive, as paragraph 65.

66. When Multiut purchased natural gas from Dynegy in 2001 and 2002, Multiut was insolvent.

67. Because Multiut was insolvent, Draiman, as a director and officer of Multiut, owed a fiduciary duty to Dynegy, as a creditor of Multiut.

68. Draiman breached his fiduciary duty to Dynegy by causing Multiut to take natural gas from Dynegy when Draiman knew that Multiut did not intend to and/or could not pay for it. Draiman also breached his fiduciary duties to Dynegy by making and/or authorizing the Transfers.

WHEREFORE, Dynegy requests entry of an order granting judgment in its favor and against Draiman, for $ 12,504,912.51, plus interest, through the date of judgment, in an amount in excess of $593,997.74, and for punitive damages and any further relief that this Court deems appropriate.

DYNEGY VS. Multiut and Nachshon Draiman

Dynegy Mkg & Trade v. Multiut Corp, et al
Assigned to: Hon. John A. Nordberg
Demand: $9,999,000

CIVIL DOCKET FOR CASE #: 1:02-cv-07446

United States District Court
Northern District of Illinois - (Chicago)
CIVIL DOCKET FOR CASE #: 1:02-cv-07446

Dynegy Mkg & Trade v. Multiut Corp, et al
Assigned to: Hon. John A. Nordberg
Demand: $9,999,000
Cause: 28:1332 Diversity-Breach of Contract

Date Filed: 10/16/2002
Jury Demand: Defendant
Nature of Suit: 190 Contract: Other
Jurisdiction: Diversity

Plaintiff
Dynegy Marketing and Trade a Colorado Partnership,	represented by	Barry S. Hyman Schiff Hardin LLP 6600 Sears Tower Chicago, IL 60606 (312) 258-5500 Email: bhyman@schiffhardin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Helen Theresa Wilson Schiff Hardin LLP 233 South Wacker Drive 6600 Sears Tower Chicago, IL 60606 (312) 258-5500 TERMINATED: 11/17/2005 Karin Therese O'Connell Gould & Ratner 222 North LaSalle Street Suite 800 Chicago, IL 60601 (312) 236-3003 Email: koconnell@gouldratner.com TERMINATED: 11/28/2005 ATTORNEY TO BE NOTICED Martha Lyn Keller Fox, Hefter, Swibel, Levin & Carroll 321 North Clark Street Suite 3300 Chicago, IL 60610-4793 (312)224-1200 TERMINATED: 11/17/2005 Sharon A. Doherty Schiff Hardin LLP 6600 Sears Tower Chicago, IL 60606 (312) 258-5500 Email: sdoherty@schiffhardin.com ATTORNEY TO BE NOTICED Theodore F. Kommers Gould & Ratner 222 North LaSalle Street Suite 800 Chicago, IL 60601 (312) 236-3003 Email: tkommers@gouldratner.com TERMINATED: 11/28/2005 ATTORNEY TO BE NOTICED

V.
Defendant
Multiut Corporation an Illinois Corporation,	represented by	Paul Thaddeus Fox Greenberg Traurig, LLP. 77 West Wacker Drive Suite 2500 Chicago, IL 60601 (312) 456-8400 Email: foxp@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Alan Jay Mandel Alan J Mandel Ltd 7520 North Skokie Blvd Skokie, IL 60077 847-329-8450 Email: alan@mandelaw.net ATTORNEY TO BE NOTICED Howard Kevin Jeruchimowitz Greenberg Traurig, LLP. 77 West Wacker Drive Suite 2500 Chicago, IL 60601 (312) 456-8400 Email: jeruchimowitzh@gtlaw.com ATTORNEY TO BE NOTICED Ira P. Gould Greenberg Traurig, LLP. 77 West Wacker Drive Suite 2500 Chicago, IL 60601 (312) 456-8400 Email: gouldi@gtlaw.com TERMINATED: 04/18/2007 Jeffrey Scott Torosian Greenberg Traurig LLP 77 West Wacker Drive Suite 2500 Chicago, IL 60601 (312) 476-5046 Email: torosianj@gtlaw.com ATTORNEY TO BE NOTICED Paul Alexis Del Aguila Greenberg Traurig, LLP. 77 West Wacker Drive Suite 2500 Chicago, IL 60601 312-476-5039 Email: delaguilap@gtlaw.com ATTORNEY TO BE NOTICED Ronald Frank Labedz AT&T Services, Inc. 225 West Randolph Street Suite 27C Chicago, IL 60606 (312) 727-2552 Email: rl9679@att.com ATTORNEY TO BE NOTICED Steven C. Coberly Greenberg Traurig, LLP. 77 West Wacker Drive Suite 2500 Chicago, IL 60601 (312) 456-8400

Defendant
Nachshon Draiman an Illinois Resident	represented by	Paul Thaddeus Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Alan Jay Mandel (See above for address) ATTORNEY TO BE NOTICED Howard Kevin Jeruchimowitz (See above for address) ATTORNEY TO BE NOTICED Ira P. Gould (See above for address) ATTORNEY TO BE NOTICED Jeffrey Scott Torosian (See above for address) ATTORNEY TO BE NOTICED Paul Alexis Del Aguila (See above for address) ATTORNEY TO BE NOTICED Ronald Frank Labedz (See above for address) ATTORNEY TO BE NOTICED Steven C. Coberly (See above for address)

Defendant
Future Associates an Illinois General Partnership	represented by	Paul Thaddeus Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Alan Jay Mandel (See above for address) ATTORNEY TO BE NOTICED Howard Kevin Jeruchimowitz (See above for address) ATTORNEY TO BE NOTICED Ira P. Gould (See above for address) ATTORNEY TO BE NOTICED Jeffrey Scott Torosian (See above for address) ATTORNEY TO BE NOTICED Paul Alexis Del Aguila (See above for address) ATTORNEY TO BE NOTICED Ronald Frank Labedz (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
Multiut Corporation	represented by	Paul Thaddeus Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Ira P. Gould (See above for address) TERMINATED: 04/18/2007 Ronald Frank Labedz (See above for address) ATTORNEY TO BE NOTICED Steven C. Coberly (See above for address) Alan Jay Mandel (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
Nachshon Draiman	represented by	Paul Thaddeus Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Ronald Frank Labedz (See above for address) ATTORNEY TO BE NOTICED Steven C. Coberly (See above for address) Alan Jay Mandel (See above for address) ATTORNEY TO BE NOTICED Ira P. Gould (See above for address) ATTORNEY TO BE NOTICED

V.
Counter Defendant
Dynegy Marketing and Trade	represented by	Barry S. Hyman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Theodore F. Kommers (See above for address) TERMINATED: 11/28/2005 ATTORNEY TO BE NOTICED Helen Theresa Wilson (See above for address) TERMINATED: 11/17/2005 ATTORNEY TO BE NOTICED Martha Lyn Keller (See above for address) TERMINATED: 11/17/2005 ATTORNEY TO BE NOTICED Sharon A. Doherty (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
Multiut Corporation	represented by	Paul Thaddeus Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Ira P. Gould (See above for address) TERMINATED: 04/18/2007 Ronald Frank Labedz (See above for address) ATTORNEY TO BE NOTICED Steven C. Coberly (See above for address) Alan Jay Mandel (See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
Nachshon Draiman	represented by	Paul Thaddeus Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Ronald Frank Labedz (See above for address) ATTORNEY TO BE NOTICED Steven C. Coberly (See above for address) Alan Jay Mandel (See above for address) ATTORNEY TO BE NOTICED Ira P. Gould (See above for address) ATTORNEY TO BE NOTICED

V.
Counter Defendant
Dynegy Marketing and Trade	represented by	Barry S. Hyman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Helen Theresa Wilson (See above for address) TERMINATED: 11/17/2005 Karin Therese O'Connell (See above for address) TERMINATED: 11/28/2005 ATTORNEY TO BE NOTICED Martha Lyn Keller (See above for address) TERMINATED: 11/17/2005 Theodore F. Kommers (See above for address) TERMINATED: 11/28/2005 ATTORNEY TO BE NOTICED Sharon A. Doherty (See above for address) ATTORNEY TO BE NOTICED

Counter Defendant
Multiut Corporation

Counter Defendant
Nachshon Draiman

Date Filed	#	Docket Text
03/15/2006	180	MINUTE entry before Judge Jeffrey Cole: Discovery is closed, all matters relating to the referral of this action being resolved, the case is returned to the assigned judge. Terminating case referral. Mailed (vmj, ) (Entered: 03/16/2006)
09/12/2006	181	MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade for leave to file oversized brief and statement of facts (Hyman, Barry) (Entered: 09/12/2006)
09/12/2006	182	MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade motion to set a trial schedule (Hyman, Barry) (Entered: 09/12/2006)
09/12/2006	183	MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade for summary judgment (Hyman, Barry) (Entered: 09/12/2006)
09/12/2006	184	NOTICE of Motion by Barry S. Hyman for presentment of motion for summary judgment183, motion for miscellaneous relief182, motion for leave to file181 before Honorable John A. Nordberg on 9/28/2006 at 02:30 PM. (Hyman, Barry) (Entered: 09/12/2006)
09/12/2006	185	CERTIFICATE of Service by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade regarding MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade for summary judgment183, MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade for leave to file oversized brief and statement of facts181, MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade motion to set a trial schedule182, notice of motion184 (Hyman, Barry) (Entered: 09/12/2006)
09/12/2006	186	Memorandum in Support of Motion for Summary Judgment by Dynegy Marketing and Trade, Dynegy Marketing and Trade, Dynegy Marketing and Trade (Hyman, Barry) (Entered: 09/12/2006)
09/12/2006	187	Statement of Undisputed Material Facts by Dynegy Marketing and Trade, Dynegy Marketing and Trade, Dynegy Marketing and Trade (Hyman, Barry) (Entered: 09/12/2006)
09/12/2006	188	NOTICE by Dynegy Marketing and Trade, Dynegy Marketing and Trade, Dynegy Marketing and Trade re other186, other187 Notice of Filing of Memorandum in Support of Motion for Summary Judgment and of Statement of Undisputed Material Facts (Hyman, Barry) (Entered: 09/12/2006)
09/12/2006	189	CERTIFICATE of Service by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade regarding notice of filing, 188, other186, other187 (Hyman, Barry) (Entered: 09/12/2006)
09/28/2006	190	MINUTE entry before Judge John A. Nordberg : Motion hearing held on 9/28/2006 regarding motion for summary judgment183. Motion for leave to file181 oversized brief is granted. Motion to set trial schedule 182 is entered and continued. Briefing schedule as to motion for summary judgment183 is set as follows: Response and cross motion for summary judgment due by 12/22/2006. Reply due by 1/31/2006. Status hearing set for 2/7/2006 at 2:30 p.m. Mailed notice (tlp, ) (Entered: 09/28/2006)
09/28/2006	191	MINUTE entry before Judge John A. Nordberg : The minute order is amended to reflect: Reply to motion for summary judgment is due 1/31/2007. Mailed notice (tlp, ) (Entered: 09/28/2006)
09/28/2006		Reply due by 1/31/2007 to motion for summary judgment. 183 (tlp, ) (Entered: 09/28/2006)
09/29/2006	192	ATTORNEY Appearance for Defendants Multiut Corporation, Nachshon Draiman, Future Associates by Jeffrey Scott Torosian (Torosian, Jeffrey) (Entered: 09/29/2006)
12/22/2006	193	MOTION by Defendants Multiut Corporation, Nachshon Draiman, Future Associates for extension of time to file response/reply (Torosian, Jeffrey) (Entered: 12/22/2006)
12/22/2006	194	NOTICE of Motion by Jeffrey Scott Torosian for presentment of motion for extension of time to file response/reply193 before Honorable John A. Nordberg on 12/28/2006 at 02:30 PM. (Torosian, Jeffrey) (Entered: 12/22/2006)
12/26/2006	195	MINUTE entry before Judge John A. Nordberg :Defendants Multiut Corporation, Nachshon Draiman, Future Associates for extension of time 193 is granted. Reply due by 12/29/2006.Mailed notice (tlp) (Entered: 12/26/2006)
12/29/2006	196	MOTION by Defendants Multiut Corporation, Nachshon Draiman, Future Associates to bifurcate Dynegy's Fraudulent Conveyance And Breach Of Fiduciary Duty Claims (Fox, Paul) (Entered: 12/29/2006)
12/29/2006	197	NOTICE of Motion by Paul Thaddeus Fox for presentment of motion to bifurcate196 before Honorable John A. Nordberg on 1/10/2007 at 02:30 PM. (Fox, Paul) (Entered: 12/29/2006)
12/29/2006	198	MEMORANDUM by Multiut Corporation, Nachshon Draiman, Future Associates in support of motion to bifurcate196 (Fox, Paul) (Entered: 12/29/2006)
12/29/2006	199	MEMORANDMUM by Multiut Corporation, Nachshon Draiman, Future Associates in Opposition to motion for summary judgment183 (Fox, Paul) (Entered: 12/29/2006)
12/29/2006	200	Response To Dynegy's Statement Of Undisputed Material Facts and Defendant's Statement Of Additional Facts STATEMENT by Multiut Corporation, Nachshon Draiman, Future Associates (Attachments: # 1 Exhibit A-1# 2 Exhibit A-2# 3 Exhibit A-3# 4 Exhibit A-4# 5 Exhibit A-5# 6 Exhibit A-6# 7 Exhibit A-7# 8 Exhibit A-8# 9 Exhibit A-9# 10 Exhibit A-10# 11 Exhibit A-11# 12 Exhibit A-12# 13 Exhibit A-13# 14 Exhibit A-14# 15 Exhibit A-15# 16 Exhibit A-16# 17 Exhibit A-17# 18 Exhibit A-18# 19 Exhibit A-19# 20 Exhibit A-20# 21 Exhibit A-21# 22 Exhibit A-22# 23 Exhibit A-23# 24 Exhibit A-24# 25 Exhibit A-25# 26 Exhibit B# 27 Exhibit C# 28 Exhibit D# 29 Exhibit E# 30 Exhibit F# 31 Exhibit G# 32 Exhibit H# 33 Exhibit I# 34 Exhibit J# 35 Exhibit K-1# 36 Exhibit K-2# 37 Exhibit L-1# 38 Exhibit L-2# 39 Exhibit M# 40 Exhibit N-1# 41 Exhibit N-2# 42 Exhibit O# 43 Exhibit P# 44 Exhibit Q# 45 Exhibit R# 46 Exhibit S# 47 Exhibit T# 48 Exhibit U# 49 Exhibit V# 50 Exhibit W# 51 Exhibit X# 52 Exhibit Y# 53 Exhibit Z# 54 Exhibit AA# 55 Exhibit BB# 56 Exhibit CC# 57 Errata DD# 58 Errata EE# 59 Exhibit FF# 60 Exhibit GG# 61 Exhibit HH)(Fox, Paul) Additional attachment(s) added on 1/24/2007 (Sealed documents: Exhibits BB, DD, HH and Z (vmj, ). (Entered: 12/29/2006)
01/05/2007	201	MOTION by Defendants Multiut Corporation, Nachshon Draiman and Future Associates for leave to file certain exhibits under seal (vmj, ) (Entered: 01/10/2007)
01/05/2007	202	NOTICE of Motion by Alan Jay Mandel for presentment of defendants motion for leave to file certain exhibits under seal 201 before Honorable John A. Nordberg on 1/10/2007 at 02:30 PM. (vmj, ) (Entered: 01/10/2007)
01/05/2007	204	NOTICE of paper filing by Multiut Corporation, Nachshon Draiman, Future Associates re: their motion for leave to file certain exhibits under seal (vmj, ) (Entered: 01/11/2007)
01/10/2007	203	MINUTE entry before Judge John A. Nordberg :Motion for leave to file under seal 201 is granted. Briefing schedule as to motion for to bifurcate196is set as follows: Response due by 1/24/2007; Reply due by 2/7/2007.Mailed notice (tlp, ) (Entered: 01/10/2007)
01/12/2007	205	TRANSCRIPT of proceedings for the following dates: 9/28/2006; Before the Honorable John A. Nordberg (vmj, ) (Entered: 01/16/2007)
01/24/2007	206	RESPONSE by Dynegy Marketing and Trade, Dynegy Marketing and Tradein Opposition to MOTION by Defendants Multiut Corporation, Nachshon Draiman, Future Associates to bifurcate Dynegy's Fraudulent Conveyance And Breach Of Fiduciary Duty Claims196 (Hyman, Barry) (Entered: 01/24/2007)
01/24/2007	207	NOTICE by Dynegy Marketing and Trade, Dynegy Marketing and Trade re response in opposition to motion, 206 (Hyman, Barry) (Entered: 01/24/2007)
01/24/2007	208	CERTIFICATE of Service by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade regarding response in opposition to motion, 206 (Hyman, Barry) (Entered: 01/24/2007)
01/29/2007	209	MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade for extension of time to file response/reply as to text entry191 (Hyman, Barry) (Entered: 01/29/2007)
01/29/2007	210	NOTICE of Motion by Barry S. Hyman for presentment of motion for extension of time to file response/reply, motion for relief209 before Honorable John A. Nordberg on 1/31/2007 at 02:30 PM. (Hyman, Barry) (Entered: 01/29/2007)
01/29/2007	211	CERTIFICATE of Service by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade regarding MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade for extension of time to file response/reply as to text entry191 209 (Hyman, Barry) (Entered: 01/29/2007)
01/31/2007	212	MINUTE entry before Judge John A. Nordberg :Motion for extension of time to file reply regarding MOTION by Counter Defendants Dynegy Marketing and Trade, Dynegy Marketing and Trade, Plaintiff Dynegy Marketing and Trade for summary judgment183 209 is granted. Motion hearing held on 1/31/2007 regarding motion for summary judgment183. Reply due by 2/6/2007. Mailed notice (tlp) (Entered: 01/31/2007)
01/31/2007	213	MINUTE entry before Judge John A. Nordberg :Status hearing set for 2/7/2007 is stricken.Mailed notice (tlp) (Entered: 01/31/2007)
02/06/2007	214	MOTION by Plaintiff Dynegy Marketing and Trade, Counter Defendant Dynegy Marketing and Trade for leave to file an oversized Reply memorandum (Hyman, Barry) (Entered: 02/06/2007)
02/06/2007	215	NOTICE of Motion by Barry S. Hyman for presentment of motion for leave to file214 before Honorable John A. Nordberg on 2/14/2007 at 02:30 PM. (Hyman, Barry) (Entered: 02/06/2007)
02/06/2007	216	REPLY by Dynegy Marketing and Trade, Dynegy Marketing and Trade to memorandum in opposition to motion199 for summary judgment (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13)(Hyman, Barry) (Entered: 02/06/2007)
02/06/2007	217	RESPONSE by Plaintiff Dynegy Marketing and Trade, Counter Defendant Dynegy Marketing and Trade to statement,,,,, 200 Multiut and Draiman's Statement of Additional Facts (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10)(Hyman, Barry) (Entered: 02/06/2007)
02/06/2007	218	CERTIFICATE of Service by Barry S. Hyman on behalf of Dynegy Marketing and Trade, Dynegy Marketing and Trade regarding Response, 217, reply to response to motion, 216, notice of motion215, MOTION by Plaintiff Dynegy Marketing and Trade, Counter Defendant Dynegy Marketing and Trade for leave to file an oversized Reply memorandum214 (Hyman, Barry) (Entered: 02/06/2007)
02/07/2007	219	REPLY by Defendants Multiut Corporation, Nachshon Draiman, Future Associates to motion to bifurcate196 (Fox, Paul) (Entered: 02/07/2007)
02/07/2007	220	MOTION by Plaintiff Dynegy Marketing and Trade, Counter Defendant Dynegy Marketing and Tradeto Set Trial Schedule (Attachments: # 1 Text of Proposed Order Scheduling Order)(Hyman, Barry) (Entered: 02/07/2007)
02/07/2007	221	NOTICE of Motion by Barry S. Hyman for presentment of motion for miscellaneous relief220 before Honorable John A. Nordberg on 2/14/2007 at 02:30 PM. (Hyman, Barry) (Entered: 02/07/2007)
02/07/2007	222	CERTIFICATE of Service by Barry S. Hyman on behalf of Dynegy Marketing and Trade, Dynegy Marketing and Trade regarding MOTION by Plaintiff Dynegy Marketing and Trade, Counter Defendant Dynegy Marketing and Tradeto Set Trial Schedule220, notice of motion221 (Hyman, Barry) (Entered: 02/07/2007)
02/14/2007	223	MINUTE entry before Judge John A. Nordberg :Motion for leave to file oversized brief214 is granted. Motion to set trial schedule 220 is entered and continued. Motion hearing held on 2/14/2007 regarding motion to set trial schedule220, motion for leave to file to file oversized brief.214 Mailed notice (tlp, ) (Entered: 02/14/2007)
03/30/2007	224	MOTION by Defendant Multiut Corporation to withdraw as attorney (Attachments: # 1 Text of Proposed Order Ex. A)(Gould, Ira) (Entered: 03/30/2007)
03/30/2007	225	NOTICE of Motion by Ira P. Gould for presentment of motion to withdraw as attorney224 before Honorable John A. Nordberg on 4/19/2007 at 02:30 PM. (Gould, Ira) (Entered: 03/30/2007)
04/18/2007	226	MINUTE entry before Judge John A. Nordberg: Motion of Ira Gould to withdraw his appearance on behalf of Multiut Corporation 224 is granted. The motion will not be heard on 4/19/07 as noticed. Mailed (vmj, ) (Entered: 04/19/2007)

Illinois Department of Financial and Professional Regulation 2008