STATE OF MAINE
CUMBERLAND, SS

BUSINESS AND CONSUMER COURT
Location: Portland
CIVIL ACTION
DOCKET NO. BDC-RE-17-11

OLD TOWN UTILITY &
TECHNOLOGY PARK, LLC, et al.
Plaintiffs,
v.
MFGR, LLC, et al.
Defendants.

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SECOND AMENDED VERIFIED
COMPLAINT FOR INJUNCTIVE RELIEF,
SPECIFIC PERFORMANCE, OTHER
EQUITABLE RELIEF, AND OTHER
RELIEF
(Title to Real Estate Involved)

NOW COME the Plaintiffs, Old Town Utility & Technology Park, LLC,
Relentless Capital Company, LLC and Samuel Eakin, by and through their attorney,
Clifford M. Ginn, Esq., and complain as follows:
NATURE OF THE ACTION
1.

This action is brought by Old Town Utility & Technology Park, LLC

(“OTU”), a Maine limited liability company, Relentless Capital Company, LLC
(“Relentless”), a Maine limited liability company that is OTU’s sole member, and
Samuel Eakin, Manager for both entities, alleging that Defendant MFGR, LLC, breached
its agreement to sell the Expera Mill Facility to OTU, as well as its agreement to pay
certain commissions to OTU, in order to permit a sale to a higher-paying buyer who
would restrain trade in the forest products industry, in violation of state and federal
antitrust laws, and tortiously interfered with the Plaintiffs’ business opportunity to
participate in implementation of an Energy Services bid for the University of Maine (the

 “University”). Plaintiffs hereby seek compensatory damages, specific performance,
injunctive and declaratory relief, and other legal and equitable relief
PARTIES
2.

Plaintiff OTU is a Maine limited liability company, formed on December

11, 2015, with principal place of business in Cape Elizabeth, Cumberland County, Maine.
Plaintiff Relentless is a Maine limited liability company with principal place of business
in Cape Elizabeth, Cumberland County, Maine. Plaintiff Eakin resides in Cape
Elizabeth, Cumberland County, Maine, and is Managing Partner of OTU and Managing
Director of Relentless.
3.

On information and belief, defendant MFGR, LLC (“MFGR”) is a

Delaware limited liability company with principal place of business in Enfield, Hartford
County, Connecticut, and its members are: Capital Recovery Group, LLC (“CRG,” or an
affiliate thereof), a Delaware limited liability company with principal place of business in
Enfield, Hartford County, Connecticut; Gordon Brothers Group, LLC (“Gordon,” or an
affiliate thereof), a Delaware limited liability company with principal place of business in
Boston, Suffolk County, Massachusetts; Rabin Worldwide, Inc. (“Rabin,” or an affiliate
thereof), a California corporation with principal place of business in Mill Valley, Marin
County, California; and PPL Group, LLC (“PPL,” or an affiliate thereof), an Illinois
limited liability company with principal place of business in Northbrook, Cook County,
Illinois. On information and belief, defendant William Firestone (“Firestone”), is a
resident of Enfield, Hartford County, Connecticut, and is a principal of CRG and MFGR.
On information and belief, Defendant Old Town Holdings II, LLC (“OTH”) is a Maine
limited liability company with principal place of business in Old Town, Penobscot

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 County, Maine, and its sole member and manager is Defendant Joseph Everett Deschenes
(“Deschenes,” who goes by “Everett”), a resident of Milford, Penobscot County, Maine.
GENERAL ALLEGATIONS
THE EXPERA MILL
4.

The Expera Mill Facility (the “Facility”) includes approximately 300 acres

of land, with 4,000 feet of frontage on the Penobscot River, roughly 400,000 square feet
of warehouse building, a waste water treatment plant, a 16 MW biomass boiler,
additional power generation assets (including buildings, boilers, turbine and water
intake), process buildings and parts, and wood yard assets. The Facility is described in
Penobscot County Registry of Deeds Book 14066, Page 68.
5.

On or about January 27, 2016, MFGR purchased the Facility from Expera

Old Town, LLC, a Delaware limited liability company with principal place of business in
Old Town, Penobscot County, Maine.

FORMATION OF OTU, INITIAL NEGOTIATION OF FACILITY PURCHASE
6.

On or about December 15, 2015, Relentless, acting through Eakin, and

James W. Sewall Company (“Sewall,” a Maine corporation with principal place of
business in Old Town, Penobscot County, Maine), acting through President and CEO
David Edson (“Edson”), formed OTU for the purpose of acquiring (or leasing) and
redeveloping the Facility. OTU sought to combine Sewall’s natural resources expertise,
supply chain relationships and local relationships with Relentless’s expertise and contacts
in corporate restructuring and project finance in pursuit of those goals.

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 7.

Sewall and Relentless later brought Everett Deschenes (“Deschenes”), the

former Manager of Fiber and Logistics at the Facility, into their efforts, and made
Deschenes’s company, Old Town Holdings II LLC (“OTH”), a single-member Maine
limited liability company with principal place of business in Old Town, Penobscot
County, Maine, a member of OTU. From the time OTH and Deschenes were brought
into OTU until their ultimate termination of involvement in August 2016, Deschenes was
active in the management of OTU, along with Eakin and Edson. At the time Deschenes
was brought in, there was no operating agreement in place, and thus no limitation on the
common-law and statutory (31 M.R.S.A. c. 21) fiduciary duty and duties of loyalty and
care.
8.

As of July 15, 2016, when the three members executed an operating

agreement for OTU (the “OTU Operating Agreement,” attached hereto as Exhibit E), the
three members had equal, one-third ownership interests in OTU, and Edson, Eakin and
Deschenes were its managers. The OTU Operating Agreement expressly confirmed the
Managers’ duty of loyalty to the LLC, duty not to exploit a business opportunity without
first disclosing and offering it to the LLC, and duty of confidentiality. The OTU
Operating Agreement reflected its members’ and managers’ existing agreement and
contractual obligations as principals for OTU, pursuant to OTU’s certificate of formation
and their respective and collective courses of dealing. The OTU Operating Agreement
permitted a Member to dissociate on at least thirty (30) days written notice to the other
Members.
9.

Eakin and Edson agreed that the Facility could finance redevelopment,

operate sustainably and maximize job creation by combining restart of pulp operations

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 with biofuels development and long-term contracts for steam and power with the
University, supplied by the Facility’s energy assets.
10.

In December, 2015, OTU began discussions with MFGR about purchasing

the Facility, discussing dollar amounts, deal structures and financing avenues that would
ultimately be reflected in offer letters and later a contract for purchase, described below.
11.

In January 2015, OTU began discussions with the City of Old Town (the

“City”) about purchase of the Facility. Bill Mayo (“Mayo”) the City’s City Manager,
invited OTU to brief the Old Town City Council on discussions to date in executive
session at a February 2, 2016 City Council meeting. Several other City Council briefings
took place in executive sessions in pursuit of the project.
12.

On February 9, Eakin sent an email to Firestone, principal for MFGR and

CRG, discussing dollar amounts, deal structures and financing avenues that would
ultimately be reflected in offer letters and later a contract for purchase, described below.
13.

On February 26, 2016, Eakin emailed Firestone a target schedule of

payments for acquisition of the Facility, with $5,000,000 payable in 2016 and $4,000,000
in additional net payments over the ensuing four years. This structure closely resembled
the structure that would be proposed in offer letters and later a contract for purchase,
described below. Edson sent Firestone a similar email on February 29, 2016.
14.

On February 29, 2016, Edson emailed Eakin, indicating that Mayo

expected to get authorization on March 7 to spend money auditing data supplied by
Firestone. Edson estimated that the reporting loop would be completed in two months.

INITIATION OF UNIVERSITY OF MAINE ENERGY REQUEST FOR PROPOSALS

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 15.

In January 2016, Edson and Eakin met with Chip Gavin, the University of

Maine System Chief Facilities and General Services Officer, to present their concept for
redevelopment and sustainable operation of the Facility, development of biofuels
operations, and long-term contracts for steam and power with the University, supplied by
the Facility’s energy assets. Gavin immediately cut the conversation short, stating that
the University could only entertain such an idea in conjunction with an energy services
Request for Proposals and public bidding process.
16.

On or about February 14, 2016, the University of Maine (the “University”)

posted a Request for Proposals – “Strategic Sourcing Initiative: University of Maine
Energy Solutions,” RFP #2016-43 (the “RFP”), seeking a long-term agreement with an
awardee to implement energy solutions that met the University’s goals for climate
commitment, minimized cost, predictable and stable costs, and improved reliability.
Relentless and Sewall agreed to develop and spearhead a response to the RFP that
incorporated the Mill Facility.
17.

Relentless recruited power generation engineering firm Self-Gen to

collaborate on developing a response to the RFP that utilized the Facility’s assets, and
Self-Gen in turn recruited Consolidated Edison Solutions (“ConEd Solutions”) to join the
team as lead – specifically to act in the role of an Engineering, Procurement and
Construction contractor, whereby Self-Gen would act as a subcontractor for engineering
and Relentless/Sewall (OTU) would acquire, finance and develop the Facility, and would
do so subject in part to the terms of the University award should the Con Ed team prevail.
The Phase I response included ConEd Solutions, Relentless, Sewall and Self-Gen as
partners.

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 18.

On March 4, 2016, Relentless executed a Teaming Agreement (“Teaming

Agreement”) with ConEd Solutions, which governed their mutual efforts to secure the
RFP, specified Relentless’s responsibilities, and prohibited ConEd from utilizing the
services of any other party in performing those responsibilities. Pursuant to the Teaming
Agreement, if ConEd Solutions won the bid, it would subcontract with Relentless for the
responsibilities prescribed therein. Both Relentless and Sewall were obligated to
consolidate their activities into OTU.
19.

In Phase I of the RFP, sixteen respondents submitted qualifications and a

non-binding scope of work for a conceptual solution for the University’s supply-side
energy needs.
20.

The University ultimately selected four respondents to participate in Phase

II of the RFP, wherein each prepared a Project Concept for University review. Phase II
proposals could receive up to 50 points for Project Concept, 25 points for Experience, 15
points for Financial Stability, and 10 points for Maine Economic Impact.

AGREEMENT TO PROVIDE SERVICES AND COMPENSATION SCHEDULE
21.

In March 2016, MFGR and OTU executed an Agreement To Provide

Services and Compensation Schedule (the “Advisory Agreement,” Exhibit A), pursuant
to which OTU would facilitate sale of the Facility’s wastewater treatment plan and
warehouses. It reduced to writing a January agreement between MFGR and OTU.
22.

The Advisory Agreement contained the following terms.

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 a. OTU would facilitate the sale of the Facility’s wastewater treatment plant for
$3,000,000 and the warehouse for $1,000,000 to either the City or a new
prospect.
b. With regard to the treatment plant, MFGR would pay OTU 10% of net closing
proceeds at sale, plus reimbursement of up to $25,000 of OTU’s out-of-pocket
expenses, so long as the plant went under contract within 60 calendar days of
the Effective Date (the “Contract Deadline”), and the closing occurred within
90 calendar days of the Effective Date or on such later date to which MFGR
and the buyer agreed (the “Closing Deadline”).
c. With regard to the warehouse, MFGR would pay OTU 10% of net closing
proceeds at sale, so long as the warehouse went under contract within 30
calendar days of the Effective Date (the “Contract Deadline”), and the closing
occurred on April 30, 2016 or on such later date to which MFGR and the
buyer agreed (the “Closing Deadline”).
d. MFGR agreed not to retain any other person or entity to provide the services
OTU was providing.
e. MFGR represented, warranted and covenanted that it desired to sell the two
assets in the manner contemplated in the agreement, that it would act in good
faith in its course of dealing with OTU, and that it would not, by action or
inaction, evade its obligation to pay OTU’s fees and expenses.

DEVELOPMENT OF FRAMEWORK FOR PURCHASE AGREEMENT

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 23.

In March 2016, OTU, acting through Eakin, and MFGR, acting through

Firestone, negotiated a framework for a phased purchase of the Facility by some
combination of OTU and the City, dividing the Facility into bundles of assets that would
be financed and sold separately in phases.
24.

In April, the City agreed to provide financing of $3,000,000 toward

purchase of the Facility, and participated in negotiations to do so, with OTU as the City’s
representative and partner.
25.

On April 11, 2016, Edson sent an email to Mayo and Eakin, laying out the

agreed structure for the joint acquisition of the Facility by the City and OTU. It read as
follows.
The Old Town Mill cannot be owned by the City and receive financing
from FAME.
To overcome this Old Town Utility & Technology Park, LLC (OTUTP)
will own those assets for the purpose of closing the transaction. It is
reasonable to expect that (a) land assets would be contributed to the city at
a later date, subject to a long term Framework agreement which will split
fees from the cash flow after debt service from the old Town Mill assets,
and (b) OTUTP and City will enter into agreements where City will
maintain basic services for the site while OTUTP manages the further
development.
Steps:
1. City Of Old Town makes offer on behalf of itself and OTUTP to
acquire the property from MFGR in conjunction with closing of waste
water and warehouse
2. OTUTP will borrow $1.0 million from FAME to acquire the property
from MFGR, interest only for two years, with balance to be termed out
and matched to future income from Fiberight, wood yard and power plant.
3. OTUTP will issue $4.0 million in senior notes to the seller which are
tied to the purchase of land and equipment. Seller notes will be repaid
through the refinancing of buildings and equipment for power and
Fiberight and other uses. OTUTP will enter into negative covenants to

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 ensure that the real estate is not leveraged unless the seller notes are repaid
from specific locations that are refinanced. Seller notes will be minimally
paid at a rate equal to $2.0 million for Fiberight, and $2.0 million for the
power plant equipment as it is brought on line.
4. Fiberight and OTUTP will enter into a long term agreement to
purchase /lease the site and post a $2.0 million stand-by letter of credit in
favor of OTUTP during the term of the agreement The term of the
Fiberight agreement will be for fifteen/20 years years at $65,000 per
month fixed payment, based on a triple net lease or similar
agreement. The first twenty four months of the agreement will be for
interest only at $10,000 per month during the construction and ramp up of
Fiberight. This lease would commence on or about July 2016 as currently
planned.
5. OTUTP will assign the LOC from Fiberight to a credit line(s) to be
used to pay seller notes as they come due.
6. City of Old Town will provide a backup agreement to OTUTP for
$500,000 in short term financing vis a vis Camden Bank, in order to make
up “Gap” timing which is subject to the timing of FAME approval.
Summary of Required Agreements;
1.

Framework Agreement with MFGR to buy assets for $9.0 mil.

2.

Lease Agreement with Fiberight

3.

$2.0 million Letter of Credit Assignment from Fiberight

4. Feedstock & Energy Supply Agreement between OTUTP and
Fiberight
5.

Revenue Sharing agreement between City and OTUTP

6.

Maintenance Agreement between OTUTP and City

7.

Short Term Lending Agreement between City and OTUTP

26.

On April 14, 2016, Mayo emailed an offer letter (the “4/14/16 Offer

Letter,” Exhibit B) to Firestone, Eakin, Edson, and Brent Folster of Camden National
Bank, who was working with the City to provide financing for acquisition of the Facility.

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 The 4/14/16 Offer Letter proposed terms and conditions for purchase of the Facility by
the City, its proxy or its affiliate, which terms and conditions would be reduced to a
binding letter of intent to be presented to the City Council for public vote in May. The
“proxy or affiliate” referenced in the offer was understood by the City, OTU and MFGR
to be OTU, in accordance with the structure laid out in Edson’s April 11, 2016 email.
27.

The 4/14/16 Offer Letter further included the following provisions.

a. The $9,000,000 purchase price would include $5,000,000 for the land,
wastewater treatment plant, and warehouse, $4,000,000 of which would be
paid May 31, 2016 and $500,000 of which would be paid June 1, 2016, and
$500,000 of which would be paid June 1, 2017.
b. The remaining $4,000,000, to be paid for the remaining of the Facility, would
be paid in three senior secured notes of $1,000,000, $1,000,000 and
$2,000,000, payable by July 1, 2019, July 1, 2020, and July 1, 2021,
respectively.
c. The offer was conditioned on cancellation of the planned April 2016 auction
for Facility assets, with the exception of agreed-upon items not necessary to
refurbishment of the Facility. MFGR cancelled the auction.
d. The proposal was subject to financing of: (i) $3,000,000 from the United
States Department of Agriculture’s Rural Development Authority (“RDA”)
for the wastewater treatment plant; (ii) $1,000,000 from Camden National
Bank for the warehouse assets; and (iii) $1,000,000 from the Finance
Authority of Maine (“FAME”) for the land. Camden National Bank and OTU

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 would act as intermediaries to confirm that financing was arranged or
committed and could reasonably be closed by July 1, 2016.
28.

On April 22, Mayo sent a revised offer letter (the “4/22/17 offer letter,”

Exhibit C) to MFGR.
29.

The 4/22/16 Offer Letter further included the following provisions.

a. The purchase price was increased to $9,500,000, which would include
$5,000,000 for the land, wastewater treatment plant, and warehouse,
$3,000,000 for the treatment plant, $1,000,000 for the finished goods
warehouse, and $1,000,000 for the land, to be paid in three sequential closings
between June 1, 2016 and July 30, 2016.
b. The City or its assign would have the right to purchase the remaining Facility
assets for $4,500,000, within 30 months of the agreement date, with the right
to purchase six-month extensions for up to a maximum of 24 months, at a
price of $50,000 per six-month extension per $1,500,000 in assets still subject
to option.
c. The City would forego taxes due from MFGR for the second quarter of 2016,
as a good faith payment in lieu of deposit, to be applied to the purchase price
at the first closing.
d. The City would assume operation and security of the Facility July 1, 2016.
e. MFGR would agree not to solicit or negotiate with other parties, and would
inform the City or its assign of any contact from parties interested in
purchasing the Facility.

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 f. The proposal was subject to financing of: (i) $3,000,000 from the United
States Department of Agriculture’s Rural Development Authority “RDA”) for
the wastewater treatment plant; (ii) $1,000,000 from Camden National Bank
for the warehouse assets; and (iii) $1,000,000 from the Finance Authority of
Maine (“FAME”) for the land. Camden Bank and OTU would act as
intermediaries to confirm that financing was arranged or committed and could
reasonably be closed by July 1, 2016.
30.

OTU’s introduction of the City as a purchaser of the wastewater treatment

plant and the warehouse assets under the essential terms specified in the Advisory
Agreement meant that OTU would be eligible to receive full costs and fees under the
Advisory Agreement, so long as the City or its assign (including OTU), closed the
purchase in accordance with agreements with MFGR.

DESCHENES’S FIRST DEPARTURE FROM OTU
31.

In the meantime, in March 2016, Deschenes sought to terminate his

membership in OTU. Edson later stated that Deschenes was motivated in part by
disagreement with OTU's approach to leasing the Facility, as Deschenes believed lumber
and forestry businesses should own the portions of the Facility they were utilizing in fee
simple, rather than merely leasing. Edson described this approach as a “tradition” in the
forest products industry.
32.

On information and belief, Deschenes terminated his membership because

he was actively working with CVG, Inc. (“CVG”) to facilitate its acquisition of the
Facility and participation in the Con Ed RFP bid. Deschenes did not disclose this to

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 Eakin at that time or at any time thereafter. On information and belief, on or about
January 8, 2015, Jeannot Carrier (“Carrier”), Tim Varney (“Varney”), and Tom Gardner
(“Gardner”), as representatives of the Carrier, Varney and Gardner families (the “CVG
families”), respectively, had formed CVG, a Maine corporation with principal place of
business in Lincoln, Penobscot County, Maine, to pursue their joint interests. On
information and belief, each family individually numbered among the largest timberland
owners in the State of Maine, and CVG had substantial vertical and horizontal market
power in the forest products industry. On information and belief, this was the beginning
of a multiyear collaboration between Deschenes and CVG, which culminated in January
2018 in CVG effectively acquiring the Facility and employing Deschenes.
33.

On information and belief, Deschenes has a longstanding relationship with

the CVG families, through his history of facility management at the Facility. Deschenes
told Eakin that in his past capacity as a facility manager at the Facility, he had urged the
Carrier and Gardner families to advance inventories to the Old Town mill, they had done
so, and they had lost roughly $6,000,000 when the mill failed.
34.

In March 2016, Firestone told Eakin that Deschenes had approached

Firestone to acquire the Facility in competition with OTU, and that he [Firestone] had
rejected the overture. On information and belief, Deschenes’s offer was made on behalf
of CVG, after Deschenes provided CVG with OTU's confidential and proprietary
information, including the status and content of negotiations amongst OTU, MFGR and
the City of Old Town.
35.

In March 2016, unbeknownst to Eakin, Con Ed signed teaming

agreements with CVG and with Maine Distributed Power, LLC (“MDP”) (the “CVG

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 Teaming Agreement,” attached as F, and the “MDP Teaming Agreement,” attached as
Exhibit G). John Richardson (“Richardson”), former Speaker of the Maine House of
Representatives, signed both agreements, signing the CVG Teaming Agreement as power
of attorney for Gardner, and signing the MDP Teaming Agreement in his capacity as
principal for MDP. The agreements were dated March 30, 2016, only 24 days after
Relentless signed its Teaming Agreement with Con Ed.
36.

On information and belief, Deschenes facilitated CVG’s and MDP’s

joining of the Con Ed team. The short gap between execution of a teaming agreement by
Relentless, as the entity that brought Con Ed to the bid process, and CVG and MDP,
entities that had had no involvement with the process to date, reinforces the fact that
CVG and MDP were connected to Con Ed via an insider in the process.
37.

In March 2016, before Deschenes’s departure, Eakin grew concerned at

rumors that University of Maine System Chancellor and former Sewall CEO James Page
had an ongoing financial relationship with Sewall, and suggested to Con Ed
representative Ward Strosser (“Strosser”) that Con Ed provide an ombudsman to
independently confirm the absence of any such financial relationship. Strosser assured
Eakin that the issue of ongoing conflicts of interest with Sewall had been specifically
vetted, and that no further research was necessary. The University of Maine System has
since disclosed that the Chancellor had at that time and continues to have a financial
interest in Sewall, including as guarantor of Sewall debt. On information and belief, the
possibility that Eakin might continue to press on this issue motivated Con Ed to begin
exploring ways to exclude Eakin and Relentless from acquisition of the Facility and from

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 participation in the RFP process, including having CVG purchase the Facility and
supplant Relentless on the RFP team.
38.

In April 2016, after OTU had solidified its relationships with MFGR and

the City and Deschenes’s undisclosed purchase overture on CVG’s behalf had failed,
Deschenes sought to resume his membership interest and manager role in OTU, and
Eakin and Edson permitted him to do so. Deschenes disclosed nothing at that time or
thereafter to Eakin regarding work performed with or for CVG or MDP during his
absence, his continued collaboration with CVG and MDP thereafter, or CVG’s and
MDP’s agreements and relationships with Con Ed. Eakin would not have consented to
Deschenes’s return, if Deschenes had disclosed any of those matters at the time.
CITY OF OLD TOWN PURCHASE AGREEMENT
39.

On April 28, 2016, Firestone, as authorized signatory for MFGR, signed a

letter agreement reflecting the terms under which the City or its assigns would purchase
the Mill Facility (the “4/28/16 Agreement,” Exhibit D) for a total of $10,000,000. This
agreement was the binding letter of intent to which the 4/14/16 Offer Letter referred, and
reflected the further negotiations of OTU, MFGR and the City. The offer letter was
addressed from Mayo. On Thursday, July 27, Barbara Levi of CRC emailed the final text
to Eakin, ccing Firestone and PPL principal David Muslin (“Muslin”), stating that “Bill
[Firestone] will be signing a pdf of this letter and forwarding to you under separate
email.”
40.

MFGR, the City and OTU understood the “assigns” in this case to be

OTU. OTU negotiated the essential terms amongst MFGR, the City and OTU, and all
three parties proceeded from this point with OTU acting on behalf of both OTU and the

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 City, with an understanding that MFGR would sell in accordance with the terms of the
4/28/16 Agreement, and the City and OTU would determine which assets the City should
purchase and lease to its “assign,” and which assets the “assign” should purchase
outright.
41.

The 4/28/16 Agreement contained the following terms.

a. $5,000,000 would be paid pursuant to “Part I” of that Agreement, in three
sequential and independent closings in June 2016, with $3,000,000 paid for
the waste water treatment plant, $1,000,000 for the finished goods warehouse,
and $1,000,0000 for land. The prices for wastewater treatment plant and the
warehouse were identical to those contemplated in the Advisory Agreement.
b. The City or its assigns would have the right to acquire all of the remaining
Expera Mill Facility assets for an aggregate purchase price of $5,000,000
($300,000 for the biomass boiler, $700,000 for all remaining power
generation assets (including buildings, boilers, turbine and water intake),
$2,000,000 for process buildings and parts, and $2,000,000 for warehousing
and wood yard assets), within 24 months of contract execution, with an
automatic 6-month extension if at least $1,500,000 in assets were purchased.
If either Party wanted an extension of time beyond that point, Seller was
obligated to negotiate therefore in good faith.
c. The City agreed to forego all personal and real estate taxes due from the Seller
retroactively and through the second quarter of 2016 and/or until the closing
of Part II by the City or its assigns.

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 d. The City or its assigns would assume operation of the Facility as of July 1,
2016, subject to final documentation acceptable to the City, its assigns,
MFGR, and the Finance Authority of Maine (“FAME”), from which financing
was anticipated. The Parties were mutually obligated to provide
documentation to FAME by May 31, 2016 for approval.
e. The City or its assigns would pay MFGR 50% of any incremental value
received through resale of or assignment of rights to purchase Part II assets.
f. MFGR was obligated to neither solicit nor negotiate with other parties at any
time and up to the approval and closing with lenders, including Maine Rural
Development Authority (“RDA”), Camden National Bank, and FAME. Seller
was obligated to inform the City and its assigns about any contact from other
potential buyers.
g. The sale was contingent on closing RDA financing for waste water treatment
plant acquisition, Camden National Bank financing for the warehouse, and
FAME financing for the land.
h. The agreement had a two-year term from July 1, 2016.
DEVELOPMENT OF PULP MILL BUSINESS MODEL, CONTINUATION OF
EFFORTS BY CVG TO ACQUIRE THE FACILITY AND SUPPLANT RELENTLESS
IN THE CON-ED SOLUTIONS BID
42.

OTU recognized that the pulp mill operation had failed multiple times

over the decades, so Relentless developed an operational structure to address the factors
undermining the pulp mill’s viability. Relentless determined that the pulp mill could not
obtain wood chips as inexpensively as Canadian competitors, in part because Canadian

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 operations typically avoid overhead by integrating chipping and pulping operations at a
single site.
43.

Relentless developed a combination of on-site chipping and a forestry

cooperative ownership structure to spread risk and reduce cost amongst mill owner and
suppliers, and to effectuate Edson’s and Eakin’s agreement on the value of limiting
personal liability for financing. An ESOP was also included as a method of reducing
labor costs through equity participation. The cooperative structure would allow the pulp
mill to weather cyclical downturns, and could be funded as a “corporate, standalone,
credit” that was not dependent upon external financial statements.
44.

In June, after Relentless worked with state and federal agencies and

officials, a nonprofit with cooperative expertise, and others to refine the concept, Eakin
presented the concept to Carrier, who hired a consultant from Canada to visit with OTU,
and who sent a favorable report about the concept to Carrier.
45.

Edson, Eakin and Deschenes met with Carrier, Varney, and Gardner, as

representatives of the Carrier, Varney and Gardner families (the “CVG families”),
respectively, and with their accountant, Randy Bishop.
46.

At no point in the discussions with CVG did Deschenes disclose to Eakin

that CVG had signed a teaming agreement with Con Ed, that Deschenes had worked with
CVG to add it to the Con Ed team and to attempt to acquire the Facility, or that
Deschenes continued to work with CVG to ensure their participation in ownership of the
Facility and implementation of any successful Con Ed RFP bid.
47.

The concept presented by OTU included an option whereby the

cooperative could purchase the CVG families’ chipping mills to eliminate debt

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 obligations of the families related to those assets, and presumably to deliver a financial
gain on assets that were marginal or operating at a loss due to industry decline.
48.

CVG immediately recognized the possibility that their participation in

ownership in the pulp mill might violate federal and state antitrust laws, given their
collective timber market share and vertical and horizontal market power. Gardiner
personally expressed that his family had experienced significant anti-trust concerns, and
expressed concern whether they could be overcome through a cooperative.
49.

CVG consulted with a specialist in Canadian cooperatives to determine

whether the cooperative option was even feasible to explore, given antitrust concerns, and
the specialist recommended further exploration. OTU, through Eakin, Edson, and
Deschenes, worked with legal specialists, governmental agencies and officials to
determine whether antitrust laws would prohibit the structure contemplated, particularly
if cooperative membership was offered broadly to suppliers on a nonexclusive basis.
50.

Discussions between CVG and OTU continued, and OTU, acting through

Eakin, sent a follow-up response to Carrier on or about July 17, 2017.
51.

On information and belief, CVG came to view the proposed forestry

cooperative as a threat to its owners’ individual businesses, while CVG grew to recognize
that it could further consolidate market power by acquiring the Facility. On information
and belief, CVG viewed the forestry cooperative as a vehicle to permit smaller
landowners to participate in chip sales to the pulp mill, sales that CVG’s owners had
historically dominated. On information and belief, CVG perceived that under the
proposed structure, a broader swath of timber land owners would have access to chipping
operations on terms identical to those the CVG families enjoyed, and that the families

20

 would not be able to a significant inventory of wood chips at the elevated prices that
historically rendered the pulp mill uncompetitive. With control of the biomass facilities,
CVG would have a potential opportunity to supply those facilities at elevated prices,
capturing a substantial share of the potential savings that could result to the University
from combined heat and power.
52.

On information and belief, although CVG had provisionally sought to

collaborate with OTU, these realizations helped prompt CVG to revert to its initial
strategy of seeking to acquire the Facility in competition with OTU, and ousting
Relentless from the ConEd Solutions Bid. On information and belief, Deschenes
continued to provide CVG with confidential and proprietary information from OTU
during this time.
53.

The ConEd Solutions Phase II RFP submission states the following with

respect to CVG, describing the extent of CVG’s vertical and horizontal market power.
The Gardner, Carrier and Varney families have had a collaborative
business relationship for many years capitalizing on their collective
strengths in the forest products industry and in unique business capacities
found in the portfolios of each family. […]
The Gardner Companies supply pulpwood and custom wood chips for use
in the manufacture of pulp, logs to sawmill for lumber, studs and boards,
and biomass to energy plants. In addition to owning timberlands and
logging operations, they own and operate a trucking fleet, chip mills, a
sawmill, a mulch grinding operation, and utilize their extensive aggregate
resources in collaboration with the other [families’] lines of business.
Now in its third generation, the company was founded in 1961 and is
based in Lincoln, Maine. Second generation family members Tom and
Scott Gardner now manage the company and the company employs
approximately one hundred and fifty Mainers.
Similarly, the Carrier family businesses have been operating since the late
1960s with the third generation in active management of the ten
diversified entities the family owns. The fourth generation is already
working in the companies and the Carrier Companies are doing business

21

 in a dozen countries around the world. Carrier enterprises include
sawmills, pellet mills, trucking companies, road and heavy construction as
well as extensive forest holdings. Collectively, they employ over four
hundred employees.
For three generations the Varney family has operated a diverse and
extensive group of companies. Their operations include insurance,
insurance underwriting, broadband and communications, automobile and
trucking sales and aviation. Several companies specialize in unique
insurance products and services for the forest products industry as well as
pulp and paper and other heavy industry. They collectively employ over
two hundred and fifty persons.
The Carrier, Varney, and Gardner families, through their diversified
holdings, have collaborated on various projects for close to twenty years.
Some examples include management of a variety of mills within the forest
products industry, development and utilization of mechanized
improvements to logging equipment, collaboration to add value to the
forestry equipment insurance field, and cooperative efforts in trucking of
various forest products. The more recent work together has been more
formalized through the founding of CVG, Inc. to provide direct sawmill
ownership for five mills with annual production exceeding 260 million
board feet per year. CVG, Inc. operates in Canada and the US and
employs four hundred. CVG Inc. and the individual family enterprises
have access to almost a million acres of forest under management or
control.
CVG, Inc. and its partners will form a new entity, Penobscot Energy and
Fiber Co. (PEFCo) as an umbrella to redevelop the Old Town facility.
54.

On information and belief, the Varney family and two other partners

joined E J Carrier in an acquisition of Materiaux Blanchet Inc., one of Canada’s largest
independent sawmill operators. Jean Carrier became Materiaux Blanchet Inc.’s
president, and Tim Varney became on of the company’s three directors.
55.

An April 27, 2017 letter from CVG to ConEd Solutions, signed by

Gardner (the “4/27/17 CVG Letter”), and included in Appendix D of ConEd Solutions’
University RFP Phase II response, states the following.
The opportunity to participate in a truly vertically integrated solution

22

 reaching from our timberlands to the planned biorefinery at Old Town to
providing thermal energy and electricity to the University of Maine is an
expression of a new paradigm for our companies. We have access to over
1,000,000 acres of timberland within 100 miles of Old Town, and expect to
enter into a long-term contract with ConEdison to provide a guaranteed
supply of biomass at a competitive price.
56.

The letter indicates CVG’s control of 1,000,000 acres of timberland within

100 miles of Old Town, and its intention to “integrate vertically,” shutting out other
suppliers from the opportunity to sell to what would be one of the State’s major
consumers of forest products, at a time when markets for Maine forest products were
contracting.
57.

Maine’s forest products industry was in June 2016 and has since remained

under severe stress. Since 2014, five Maine pulp or paper mills have closed down,
including facilities in East Millinocket, Lincoln, Old Town, Bucksport, and Madison.
And others have reduced production. Maine’s biomass industry is likewise under stress,
evidenced by temporary closings of facilities in Jonesboro and Enfield, longer term
closings of facilities in Bucksport and (for the moment) Old Town, and roughly
$13,500,000 in biomass industry subsidies provided under 2015 Public Law, Chapter
483. Since 2015, at least four wood pellet plants have had temporary shutdowns. All of
these trends result in reduced market opportunities for timber land owners, and enhance
the value of vertical integration for oligopolies in the industry.
58.

The article The State of the Northeast Regional Pulp Market, published by

Eric Kingsley of Innovative Natural Resource Solutions LLC in the February 2017 issue
of The Northern Logger and Timber Processor Magazine details the following facts
about the forest products industry in Maine. The above-described closings have resulted

23

 in the loss of 3,000,000 tons of pulpwood and mill chip markets since 2014, not counting
the lost biomass markets at the mills. This has in turn resulted in falling softwood prices.
Pulp and paper mill closings mean sawmills are less able to rely on those consumers to
buy mill chips, sawdust and bark produced by their operations.
IMPLEMENTATION OF THE 4/28/16 AGREEMENT
59.

In June through October 2016, the City, OTU and MFGR worked to close

sale of the Facility in accordance with the 4/28/16 Agreement. Attorney Jim Barns
represented the buyers, directed by OTU, acting through Eakin.
60.

In June 2016, the State of Maine’s approach to regulation of stormwater

treatment changed. requiring that the pulp mill and the treatment plant be in common
ownership. This change meant that the waste water treatment plant was no longer a
candidate for separate ownership by a municipality, effectively requiring that the pulp
mill and the treatment plant be in common ownership. This was of concern to MFGR, as
one of the owners had a bad experience with ownership of a waste water treatment plant.
61.

In June 2016, for reasons including the State’s new regulatory approach to

the treatment plant, the City elected to have OTU purchase the Facility, as permitted
under the 4/28/16 Agreement, with the City providing financing of $3,000,000. The
University’s Forest Bioproducts Research Institute (“FBRI”) was leasing warehouse
space at the Facility, and OTU and the City agreed that it was essential to negotiate a
long-term lease for that space with the University, to provide security for the City’s bond.
OTU, acting through Eakin, negotiated such a lease on behalf of OTU and the City, in
consultation with the City and with MFGR’s knowledge and consent, and finalized it in
July 2016. Concurrently, OTU entered into negotiations with Sibley Transportation,

24

 which specializes in transporting paper rolls, as a new tenant for 100,000 square feet of
warehouse space.
62.

On or about July 5, 2016, Attorney Barns circulated to MFGR and OTU a

draft buy-sell instrument that reflected the desire of MFGR, the City and OTU to
effectuate the 4/28/16 Agreement through purchase of the Facility by OTU, rather than
the City. The draft was based on the discussions of the Parties, and included the
following essential terms.
a. Purchase of the Facility would be in three Phases, with Phase I and Phase II to
be concluded concurrently. Phase I included OTU’s purchase of the Land and
Warehouses for $2,500,000, financed by MFGR, with payment in full due on
the later of September 30, 2016 or 75 days from execution of the buy-sell
instrument. Phase II included OTU’s purchase of the wood yard, digestors,
process plant, wastewater treatment plant, and administrative buildings for
$2,500,000, and OTU’s purchase of MFGR’s capital stock for $250,000,
financed by the Seller, with the seller receiving a Lien in Lieu of payment for
the Phase II assets, allowing for quick transfer to MFGR in a case of default.
OTU would also pay $100,000 toward carrying cost of the Facility through
closing of Phase I and Phase II. Phase II would entail purchase of the power
plant and related assets for $5,000,000, half in cash and half in seller notes,
payable over the course of seven years in operation.
b. The instrument contemplated $2,500,000 in financing for Phase I from the
City, $2,500,000 in financing for Phase II financed by MFGR, with takeout by
FAME and Camden National Bank, and $2,500,000 in financing for Phase III

25

 from a combination of ConEd Solutions, Camden National, FAME, and
others.
63.

On or about July 9, 2016, MFGR, through Firestone, communicated the

following concerns about the draft, each of which was immediately addressed in a
response email from Eakin. (i) Firestone wanted to ensure that Phase II assets would
transfer immediately to MFGR in the event of default, without bankruptcy intervention.
Eakin pointed out that the Lien in Lieu of payment provision accomplished that. (ii)
Firestone wanted to ensure that in the event of default MFGR had unfetterered access to
remove assets. Eakin pointed out that the draft instrument provided for that. (iii)
Firestone wanted to ensure that for Phase III, MFGR would retain the boiler and the land
it sits on and/or easement for pipelines as needed for the operation and generation of
electricity to the University. Eakin pointed out that the draft instrument provided for that.
(iv) Firestone expressed a desire for “Phase IV” financial terms to be bracketed until the
revenue potential was fully understood. Eakin pointed out that there was no Phase IV.
(v) Firestone wanted to make sure that if the City purchased the wastewater treatment
plant from OTU within two years, MFGR would receive 50% of any payment amount
above what OTU paid for it. Eakin pointed out that the draft instrument already provided
for that. (vi) Firestone wanted to bracket the escrow funding until a number was settled,
in light of the operational budget for the wastewater treatment plant, which he attached to
his email. Eakin stated he would review and respond.
64.

Beyond these concerns, most of which were already addressed in the draft

instrument, Firestone’s email expressed no disagreement with the instrument’s essential
provisions.

26

 65.

On July 13, Mayo emailed Firestone to confirm that the City Council had

authorized the City to make final public announcements regarding issuance of a general
obligation bond to finance purchase of the Facility’s land and warehouse assets, in
accordance with the 4/28/16 Agreement. He clarified that the second reading would be
completed July 28, and that closing could take place thereafter, subject to documentation.
66.

In early August 2016, after a series of conference calls involving OTU, the

City and MFGR, Attorney Barns delivered a draft buy-sell instrument that reflected the
desire of MFGR, the City and OTU to effectuate the 4/28/16 Agreement through
purchase of the Facility by OTU, rather than the City. Around that time, the City, OTU
and MFGR had a conference call to discuss final closing, and agreed that execution of the
buy-sell instrument and provision of required exhibits by MFGR were the chief
remaining items required to close.
67.

In early August 2016, Deschenes once again sought to terminate his

membership in OTU, and asked to be released from noncompete and nondisclosure
restrictions. Eakin resisted such a release, but Edson advocated for it, and Eakin agreed
to it, with specific confirmation from Deschenes that he would in no way engage in any
competition with OTU. Deschenes replied that he had decided to return to this native
Canada and would not engage in any competition against OTU.
68.

On information and belief, Deschenes sought termination in order to

facilitate CVG’s acquisition of the Facility in competition with OTU, and CVG’s ouster
of Relentless as a member of the Con Ed RFP team. Deschenes disclosed no such
intention to Eakin. Any waiver of noncompete and nondisclosure restrictions by Eakin
was premised on Deschenes’s false representation that he had no intention of engaging in

27

 competition with OTU, and was induced by Deschenes’s failure to disclose his past
dealings and anticipated future dealings with CVG.
69.

As described below, within less than 30 days of Deschenes’s departure,

CVG entered into a letter of intent to purchase the Facility from MFGR, which (on
information and belief) was facilitated by Deschenes. On information and belief,
Deschenes provided CVG with OTU's confidential and proprietary information,
including information regarding the status and content of negotiations among OTU,
MFGR and the City.
70.

In early August 2016, OTU and the City discovered that the Facility’s

tissue building warehouse property required substantial repairs. They immediately began
working with MFGR to address the issues raised.
71.

On August 12, Edson sent an email to Eakin, Kevin Paradis (“Paradis”) of

MFGR, Mahan, Mayo and others. He indicated that lawyers for OTU and MFGR had
agreed on recitals for the buy-sell instrument and were pulling together attachments and
exhibits, and that MFGR had, through Firestone, verbally agreed to all terms of the buysell instrument. Kevin Paradis was included because he was charged with providing
information about the tissue building roof issue.
72.

On August 13, Eakin emailed an update and time table to Firestone,

Muslin, Gordon Brothers principal Bob Maroney (“Maroney”), Edson, a University
representative, and attorneys on both sides. All parties had agreed that the buy-sell
instrument could be ready for closing by August 26, 2016. The attorneys were tasked
with itemizing attachments and finalizing buy-sell instrument language, Sewall was
tasked with land related documents.

28

 73.

On August 14, 2016, Mahan sent an email to Eakin, Edson, Paradis and

others, asking Edson to join weekly meetings (Wednesdays at 4:00 PM) with Mahan,
Mayo, and City Councilor Stan Peterson. Mahan did not invite Eakin to participate
physically or telephonically in those meetings.
74.

In an August 16 email from Mayo to Edson, Mayo noted that Deschenes

was asking for a report on the tissue building roof issue. Edson emailed Mahan, Mayo
and Eakin to note that Deschenes was withdrawing from OTU, and urging that Deschenes
should not receive that report.
75.

On information and belief, Deschenes introduced CVG to MFGR and was

facilitating CVG’s efforts to acquire the Facility, providing them information about the
City’s and OTU’s dealings with MFGR. On information and belief, Deschenes sought
the tissue building roof report on CVG’s behalf.
76.

On or about August 21, 2016, the ConEd Solutions Team learned that it

was one of four finalists to proceed to Phase II of the RFP. In the ensuing months,
ConEd Solutions would remove Relentless from the RFP team, and would include
Penobscot Energy & Fiber, LLC, a Maine limited liability company with principal place
of business in Old Town, Penobscot County, Maine (“PEFCo”), formed by CVG and its
partners to redevelop the Facility. This would be done without notice to Eakin.
According to PEFCo, as of December 15, 2017, PEFCo’s minority owner was MDP, and
its majority owner was CVG Old Town, Inc., a Maine corporation created on August 9,
2017, within days of the above-captioned action being filed, with an address and
registered agent identical to those of CVG. On information and belief, CVG Old Town,
Inc. is wholly owned and controlled by CVG and its principals.

29

 77.

On information and belief, the ConEd Solutions Phase II Response could

not include a different team than its Phase I Response, unless it sought and received the
University’s consent. Eakin is unaware of any public record of request or permission to
alter the RFP team. The purpose of Phase I was to determine which teams had the best
qualifications to compete for the RFP, so alteration of the chief factor (team identity and
qualifications) on which entry to Phase II was based would be a weighty matter.
78.

On September 1, 2016, emails among David Mahan (“Mahan”), the City’s

mayor, Mayo, Eakin and Edson referenced the understanding among the City, OTU and
MFGR that the City would issue a $3,000,000 bond to finance Phase I of OTU’s
acquisition of the Facility, and that the City was waiting to receive the closing documents
discussed in the August conference call. Mahan referenced a meeting with Firestone
after that call, where he reiterated the need for said documents. MFGR was charged with
producing the exhibits, and had yet to do so.
79.

The ConEd Solutions Phase II Energy Solutions RFP response states that

on September 1, 2016, CVG and MFGR signed a letter of intent (the “CVG LOI”) for
CVG to purchase the Facility. The 4/28/16 agreement forbade MFGR from soliciting and
accepting competing offers to purchase the Facility, and obligated MFGR to notify the
City and OTU of any solicitation received. Neither MFGR nor anyone else notified
Eakin about the CVG LOI, or about solicitation by CVG.
80.

On September 5, 2016, Edson emailed Eakin, Mayo, Mahan, and Ronald

Harriman (the City’s Economic Development Director), updating them on progress. He
described OTU as currently closing the second lease on the finished goods warehouse
and getting a final estimate for roof repair at the tissue building.

30

 81.

On September 11, 2016, Eakin sent an email to Firestone, Maroney,

Muslin and Edson, with an attached update. It reflected that the City had been through all
the public requirements for the $3,000,000 bond financing, and described agreement
between OTU and MFGR on an approach to addressing the roof problems with the tissue
building. It also described application for FAME financing being submitted by
September 15, 2016, and the application for RDA financing being submitted by October
1, 2016. It projected closing on the finished goods warehouse by September 30, 2016 to
begin the series of closings called for under the buy-sell instrument.
82.

On or about September 23, Mahan conveyed to Eakin and Edson the

City’s preference to purchase the warehouse assets directly, with OTU acquiring the
remaining assets. No change was proposed that would impact MFGR, as the sale was
going to be financed by the City’s bond either way.
83.

Sewall set a September 27 conference call on the project, with Edson,

Eakin and Mahan participating.
84.

Attorney Barns visited the Mill site and Mahan on September 28, 2016.

OUSTER OF OTU FROM FACILITY PURCHASE AND OF RELENTLESS FROM
THE UNIVERSITY RFP
85.

In early October 2016, Firestone notified OTU that a competing buyer was

seeking to purchase the Facility – CVG. Firestone represented to Eakin that the buyer
would pay out $4,000,000 in December 2016, and that the deal did not involve financing
from the City. On information and belief, this was untrue, and that full payment was not
slated to be completed until well into 2017. On information and belief, Firestone, Mahan

31

 and Deschenes participated in negotiations with CVG that led to CVG’s secret September
1, 2016 letter of intent.
86.

On October 10, 2016, Firestone gave OTU two weeks to respond with a

counter offer to the CVG offer.
87.

On October 10, 2016, Eakin emailed a project update to Mayo, Mahan

Edson, and representatives of FAME and the University. The update noted that the buysell instrument had been negotiated for the City to purchase the first $1,800,000 of
warehouse space (with the remainder to be purchased once roof issues were resolved). It
indicated that a pulp plant tenant had been identified, that FAME and Camden National
Bank were awaiting an application for bridge financing, and that a buy-sell instrument for
Phase III was completed. It indicated that significant and unexpected delays in the
University’s RFP process had delayed closing, and that MFGR was entertaining other
buyers.
88.

On October 19, 2016, Edson and Eakin fashioned an offer to close the deal

to purchase the entire Facility for $5,000,000 in cash, and $2,000,000 in seller financing,
with redemption of the $2,000,000 on January 15, 2017, with the remaining essential
terms of the buy-sell instrument remaining the same. After sharing with Mahan, they
conveyed the offer to Firestone.
89.

On October 20, 2016, Edson, Eakin and others met with biotech company

API to begin negotiations for their involvement in repurposing the pulp operation. On
information and belief, Deschenes and Mahan made direct contact with API’s Chief
Financial Officer to redirect and undermine OTU negotiations. On information and
belief, Deschenes was acting on CVG’s behalf in this process.

32

 90.

Between October 15 and October 20, 2016, Edson met with Gardner, who

had been identified as the lead voice of the competing group of investors. Edson told
Eakin that Gardner did not plan to pursue the University RFP, but rather had other uses
for the Facility.
91.

Eakin would later learn, in a December 16 phone call from Ward Strosser

of ConEd Solutions, that ConEd Solutions had begun weekly meetings with CVG since
early October 2016. On information and belief, initial discussions leading up to those
meetings would have had to commence even earlier than that, in September 2016 if not
earlier.
92.

On or about October 24, 2016, Firestone stated that he did not believe that

the waste water treatment plant would be transferred concurrently with Phase I. Attorney
Barns held a conference call with Firestone to indicate that he was incorrect: every
iteration of the buy-sell documents, including the most recent to which he had assented in
full, clearly provided for transfer of the treatment plant at the same time as the land and
warehouse purchase; every call on the subject had indicated that the treatment plant and
the land and warehouse would be transferred at the same time. The chief barriers to
closing at that time were MFGR’s failure to provide required exhibits relative to permits
and licenses, and resolution of the tissue building roof issue.
93.

Attorney Barns emailed Eakin and Edson this information on October 24,

2016. The email stated the following.
I understand that Mr. Firestone has indicated that he believes the waste
water treatment plant would not be transferred concurrently with Phase
I. This, in fact, has never been the case. The buy-sell documents
submitted to Mr. Firestone and his attorney have all been very clear that
you intended to close on the waste water treatment plant at the same time
as the land and warehouse purchase. This has never changed in the

33

 documents or in the many phone calls we have had. We even held a
conference call with him to explain that he was incorrect. To my
knowledge, the buy sell document was virtually complete based on
continuous, detailed good faith negotiations. The completed negotiations
and signing were delayed by exhibits required from MFRG relative to
permits and licenses, as well as the discovery of the roof problems on the
warehouse. Both of these issues can be resolved in short order if we can
speak to the attorneys once again.
94.

On October 24, 2016, Eakin emailed Firestone, ccing Maroney, Muslin,

Mahan, Mayo and others, forwarding Attorney Barns’s objections and expressing
concern that MFGR was questioning long-settled matters, at a time when MFGR was also
inappropriately instructing at least one future tenant that OTU had procured to
communicate with MFGR to the exclusion of OTU.
95.

Shortly thereafter, MFGR declined to sell to OTU, electing to sell to CVG

and its partners.
96.

In November 2016, Edson and Eakin agreed that legal options should be

reviewed, and Eakin began that process. Edson sent Dave Stevens (“Stevens”), Sewall’s
Chief Operating Officer to determine OTU’s position in the RFP team. At that time,
Edson called Eakin to tell him that ConEd Solutions had agreed to repay OTU’s
expenses. Eakin had not previously been consulted about that possibility.
97.

On November 28, 2016, Eakin and Edson had a conference call with

Strosser and Jack Bosch (“Bosch”) from ConEd Solutions to discuss ConEd Solutions
advancing funds to purchase the Facility. Neither Strosser, Bosch nor Edson disclosed
that they were working with Gardner and the opposing buyers at the time.
98.

On December 15, 2016, Edson emailed Eakin an attached written

termination of its membership in OTU, and sent hard copies via FedEx.

34

 99.

On or about December 15, 2016, Strosser called Eakin, saying ConEd

Solutions was looking for a role for Eakin to play in the RFP. At that time, Jake Ward,
the University’s Vice President of Innovation and Economic Development, informed
Eakin that the University had been in discussions with Edson and Gardner about the
University’s lease at the Facility for eight weeks.
100.

On December 22, 2016, Strosser informed Eakin that ConEd and Edson

had been meeting privately with the competing buyers since early October 2016. On
information and belief, initial discussions leading up to those meetings would have had to
commence even earlier than that, in September 2016 if not earlier.
101.

ConEd’s actions in ousting Relentless and coordinating with CVG

breached its Teaming Agreement.
102.

In June 2016, the ConEd proposal won the bid with 82 points, followed by

Honeywell International Inc. (“Honeywell”) with 73.8 points, Ameresco, Inc.
(“Ameresco”) with 66.5 points, and Energy Systems Group with 53.6 points. Ameresco
and Honeywell unsuccessfully appealed the decision.
ULTIMATE SALE OF THE FACILITY
103.

Although CVG was originally slated to close on the Facility in 2016, as of

November 2017, no closing had occurred. In November 2017, Deshenes facilitated a
meeting at the Facility between Firestone, CVG and a representative of Ameresco to
discuss purchase of the Facility. Shortly thereafter, MFGR entered into a term sheet for
purchase of the Facility with E4Research.org, a Maine public benefit nonprofit
corporation created under the auspices of Sewall.

35

 104.

On December 31, 2017, E4Research.org’s term sheet with MFGR lapsed.

On information and belief, CVG paid additional deposit money, and by mid-January,
PEFCo executed an agreement to purchase the Facility. On or about January 29, 2018,
the Facility was deeded to OTM Holdings, LLC (“OTM”) and Powerhouse Holdings,
LLC (“PH”). On information and belief, OTM and PH were created by CVG for
purposes of the final Facility acquisition. On or about January 29 2018, OTM granted
MFGR a mortgage to secure a $4,000,000 promissory note, and the mortgage deed,
recorded in the Penobscot Country Registry of Deeds Book 14,729 Page 267, was
executed by Carrier, as President of OTM. This mortgage provided the Facility as
collateral to MFGR, but excluded the warehouse property. The excluded property is the
property that OTU sought to have the City mortgage or purchase pursuant to the Purchase
Agreement. This would permit the City to lend OTM much or all of the money to
discharge the OTM mortgage, as the City was prepared to purchase the warehouse
property for $3,000,000 in 2016.
105.

Since the purchase of the Facility, Deschenes has been acting as public

spokesperson for OTM in media reports, and has been publicly identified as its “business
development director.”
106.

On information and belief, Deschenes has been compensated for his role

in facilitating CVG’s acquisition of the Facility and supplanting of Relentless on the Con
Ed RFP team, and will be compensated in his role as business development director and
spokesperson for OTM.
107.

Each action Deschenes is described as taking in this Complaint was taken

both individually and as principal for OTH.

36

 COUNT I
BREACH OF CONTRACT – MFGR (Plaintiff OTU vs. Defendant MFGR)
108.

Plaintiff OTU realleges and incorporates by reference the allegations of

Paragraphs 1 through 107 of this Complaint.
109.

OTU and MFGR entered into a valid and enforceable contract for

purchase of the Facility (the “Purchase Contract”), reflected in a signed writing and
evidenced by months of partial performance by both parties.
110.

In the alternative, the course of dealing among OTU, MFGR and the City

after the 4/28/16 Agreement was executed established that OTU was an intended third
party beneficiary of a valid and enforceable contract between MFGR and the City,
reflected in a signed writing and evidenced by months of partial performance by both
Parties.
111.

OTU performed under the Purchase Contract, to the extent permitted by

MFGR’s actions.
112.

MFGR breached the Purchase Contract, or in the alternative, the 4/28/16

Agreement, in the following ways.
a. MFGR solicited an alternative buyer.
b. MFGR entered into an agreement to sell to an alternative buyer.
c. MFGR failed to timely disclose both the solicitation of the alternative buyer
and the purchase agreement with the alternative buyer.
d. MFGR failed to perform its obligations to finalize documentation so that sale
of the Facility could be closed.
e. MFGR refused to sell the Facility to OTU pursuant to contractual terms.

37

 f. MFGR’s course of conduct in soliciting alternative buyers, contracting with
them, failing to timely disclose these matters, delaying documentation to
thwart OTU’s efforts to reach a closing, and pretextually objecting to longsettled terms of the agreement regarding sale of the wastewater treatment
plant, breached an express written covenant
113.

As a result of MFGR’s breach, OTU has suffered damages, including but

not limited to: deprivation of the value of purchasing the Facility; exclusion from the
team implementing the ConEd Solutions Energy RFP Bid; and expenditure of time,
money and resources in pursuing the transaction, lining up financing, tenants and
development partners.
WHEREFORE, Plaintiff OTU respectfully requests that this Court grant
judgment in favor of Plaintiff OTU and against Defendant MRGH, award Plaintiff OTU
damages, award prejudgment and postjudgment interest, and award Plaintiff OTU such
other relief as the Court deems appropriate.

COUNT II
SPECIFIC PERFORMANCE (Plaintiff OTU vs. Defendant MFGR)
114.

Plaintiff OTU realleges and incorporates by reference the allegations of

Paragraphs 1 through 113 of this Complaint.
115.

Remedies at law are not adequate to address MFGR’s breach of the

Purchase Agreement, or in the alternative, of the 4/28/16 Agreement, of which OTU was
an intended third party beneficiary.
116.

Remedies at law are not adequate to address MFGR’s breach.

38

 117.

OTU has a likelihood of success on the merits of their claims in.

118.

Irreparable injury would result to the OTU, absent injunctive relief, and

the irreparable injury to OTU would outweigh harm to MFGR.
119.

The public interest would not be harmed by the granting of injunctive

120.

The value of the Facility has decreased, due to the long delay in closing

relief.

caused by the breaches detailed in Count I
121.

It would be equitable for the Court to exercise its discretionary power to

compel MFGR to specifically perform the Purchase Agreement, or in the alternative, to
specifically perform the 4/28/16 Agreement in conjunction with agreed terms in the buysell instrument that OTU and MFGR drafted to finalize sale of the Facility to OTU, with
adjustments for the decrease in value caused by the delay in closing purchase, and to
enjoin any transaction that would prevent specific performance.
WHEREFORE, Plaintiff OTU respectfully requests that this Court grant
judgment in favor of Plaintiff OTU and against Defendant MRGH, compel specific
performance of the Purchase Agreement (or in the alternative of the 4/28/16 Agreement
in the manner contemplated in the buy-sell instrument that OTU and MFGR drafted to
finalize sale of the Facility to OTU), with adjustments for the decrease in value caused by
the delay in closing purchase, enjoin any transaction that would prevent specific
performance, and award Plaintiff OTU such other relief as the Court deems appropriate.

COUNT III
BREACH OF CONTRACT (Plaintiff OTU vs. Defendant MFGR)

39

 122.

Plaintiff OTU realleges and incorporates by reference the allegations of

Paragraphs 1 through 121 of this Complaint.
123.

The Advisory Agreement constituted a valid and enforceable agreement

between OTU and MFGR.
124.

OTU secured a purchaser for the wastewater treatment plant and the

warehouse assets in accordance with the Advisory Agreement, in each case by the
applicable Contract Deadline. To the extent, either asset did not meet the applicable
Contract Deadline, MFGR made no such assertion at any point, and OTU’s and MFGR’s
course of conduct in the months following the April agreements amongst the City, OTU
and MFGR indicated that MFGR intended to pay the fees and costs due with respect to
both assets, and waived any objection based on the Contract Deadline. With respect to
the Closing Deadlines, pursuant to the Purchase Agreement or, in the alternative, to the
4/28/16 Agreement, MFGR and OTU had reached agreement with respect to closing
dates. Any extension of closing dates constituted a waiver of those deadlines under both
(i) the Advisory Agreement and (ii) the Purchase Agreement or, in the alternative, of the
4/28/16 Agreement. Moreover, breaches by MFGR described in Count I effectively
thwarted OTU in closing the sale.
125.

MFGR breached the Advisory Agreement in the following ways.

a. MFGR breached the Purchase Agreement, or in the alternative, the 4/28/16
Agreement. To the extent the ultimate purchaser of the Facility does not
trigger payment of fees and costs to OTU, it is due to the bad faith acts of
MFGR.

40

 b. MFGR breached express provisions of the Advisory Agreement preventing it
from manipulating the purchase and sale process to deprive OTU of fees and
costs.
c. Insofar as Deschenes introduced CVG to MFGR, Deschenes was at the time
still an agent of OTU. Although he had sought to withdraw from OTU
membership, the 30-day notice period for such withdrawal had not lapsed at
the time. MFGR’s refusal to pay fees and costs for any sale to CVG and its
associates would thus constitute breach. Given that the agreement to sell to
CVG and its associates was a breach of both the Purchase Agreement (or in
the alternative, the 4/28/16 Agreement) and the Advisory Agreement, MFGR
cannot enforce the Contract Deadline in this instance.
126.

As a result of MFGR’s breach, OTU has suffered damages, including but

not limited to: deprivation of the costs and fees due under the Advisory Agreement; and
expenditure of time, money and resources in pursuing the transaction, lining up
financing, tenants and development partners.
WHEREFORE, Plaintiff OTU respectfully requests that this Court grant
judgment in favor of Plaintiff OTU and against Defendant MRGH, award Plaintiff OTU
damages, award prejudgment and postjudgment interest, and award Plaintiff OTU such
other relief as the Court deems appropriate.

COUNT IV
PROMISSORY ESTOPPEL (Plaintiffs OTU, Relentless and Eakin vs. Defendant
MFGR)

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 127.

Plaintiff OTU realleges and incorporates by reference the allegations of

Paragraphs 1 through 126 of this Complaint.
128.

MFGR promised to sell the Facility to OTU, a promise that MFGR should

reasonably have expected to induce action on the part of OTU, Relentless and Eakin, and
which in fact induced action on the part of OTU, Relentless and Eakin. OTU, Relentless
and Eakin reasonably relied on MFGR’s promise, to their detriment.
129.

MFGR breached its promise, in the manner described in Count I.

130.

As a result of MFGR’s breach, OTU, Relentless and Eakin have suffered

damages, including but not limited to: deprivation of the value of purchasing the Facility;
exclusion from the team implementing the ConEd Solutions Energy RFP Bid; and
expenditure of time, money and resources in pursuing the transaction, lining up
financing, tenants and development partners.
WHEREFORE, Plaintiffs OTU, Relentless and Eakin respectfully request that
this Court grant judgment in favor of Plaintiffs and against Defendant MRGH, award
Plaintiffs damages, award prejudgment and postjudgment interest, and award Plaintiffs
such other relief as the Court deems appropriate.
COUNT V
PROMISSORY ESTOPPEL (Plaintiffs OTU, Relentless and Eakin vs. Defendant
MFGR)
131.

The Plaintiffs reallege and incorporate by reference the allegations of

Paragraphs 1 through 130 of this Complaint.
132.

MFGR promised to pay fess and costs to OTU, in the manner described in

the Advisory Agreement, a promise that MFGR should reasonably have expected to
induce action on the part of OTU, Relentless and Eakin, and which in fact induced action

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 on the part of OTU, Relentless and Eakin. OTU, Relentless and Eakin reasonably relied
on MFGR’s promise, to their detriment.
133.

MFGR breached its promise, in the manner described in Count II.

134.

As a result of MFGR’s breach, OTU, Relentless and Eakin have suffered

damages, including but not limited to: deprivation of the value of purchasing the Facility;
exclusion from the team implementing the ConEd Solutions Energy RFP Bid; and
expenditure of time, money and resources in pursuing the transaction, lining up
financing, tenants and development partners.
WHEREFORE, Plaintiffs OTU, Relentless and Eakin respectfully request that
this Court grant judgment in favor of Plaintiffs and against Defendant MRGH, award
Plaintiffs damages, award prejudgment and postjudgment interest, and award Plaintiffs
such other relief as the Court deems appropriate.
COUNT VI
UNJUST ENRICHMENT (Plaintiffs OTU, Relentless and Eakin vs. Defendant
MFGR)
135.

The Plaintiffs reallege and incorporate by reference the allegations of

Paragraphs 1 through 134 of this Complaint.
136.

OTU, Relentless and Eakin conferred numerous benefits on MFGR

throughout the course of dealing described herein. Plaintiffs laid the foundation for
financing from the City and others, recruited and negotiated terms with future tenants that
increased the Facility’s value and creditworthiness, and played an instrumental role in the
winning ConEd Solutions bid that likewise increased the Facility’s value and
creditworthiness.
137.

MFGR knew of and appreciated the value of those benefits.

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 138.

The acceptance or retention of those benefits by MFGR under the

circumstances herein make it inequitable for MFGR to retain the benefit without payment
of its value.
WHEREFORE, Plaintiffs respectfully request that this Court grant judgment in
favor of Plaintiffs OTU, Relentless and Eakin and against Defendant MRGH, award
Plaintiffs the value of the benefits conferred on MFGR, award prejudgment and
postjudgment interest, and award Plaintiffs such other relief as the Court deems
appropriate.
COUNT VII
CONTRACT, COMBINATION AND CONSPIRACY IN RESTRAINT OF TRADE
AND TO MONOPOLIZE TRADE, 10 M.R.S.A. §§1101 et seq. (Plaintiffs OTU,
Relentless and Eakin vs. Defendants MFGR and Firestone)
139.

The Plaintiffs reallege and incorporate by reference the allegations of

Paragraphs 1 through 138 of this Complaint.
140.

CVG possesses substantial vertical and horizontal market power in

Maine’s forest products industry.
141.

Acquisition of the Facility by CVG, or by a combination of persons or

entities that includes, is affiliated with, or is controlled by CVG, would allow CVG to use
that vertical and horizontal market power to shut all other forest products suppliers out of
the opportunity to sell products to the Facility, and would allow CVG to charge elevated
prices for their [CVG’s] forest products, at a time when paper mill, pulp mill, biomass
generator and pellet mill closings have severely reduced opportunities for forest products
suppliers to sell their products. Moreover the rest of Maine’s forest products industry
would be foreclosed from participating in the unique opportunities the Facility affords to

44

 sell biomass-fired heat and power to a large customer like the University, and to sell
forest products to buyers in value-added industries like the biofuel industry, at what is
likely the single best site for such sales in terms of infrastructure and access to research
and development resources. These end users of forest products would be uniquely able to
pay elevated prices for forest products, and CVG’s ownership of the Facility would
exclude the entire rest of the industry from that opportunity.
142.

The 4/27/17 CVG Letter described both CVG’s substantial market power,

and its intention to expand that market power through vertical integration with the
Facility, gaining an exclusive right to sell its products to the facility. The damage caused
by businesses with horizontal market power engaging in vertical integration was a driving
force behind the passage of Maine’s antitrust laws.
143.

The acquisition of the Facility by CVG, or by a combination of persons or

entities that includes, is affiliated with, or is controlled by CVG, would restrain trade and
commerce in Maine, pursuant to 10 M.R.S.A. §1101.
144.

MFGR’s contract to sell the Facility to CVG, or to a combination of

persons or entities that includes, is affiliated with, or is controlled by CVG, is a contract
in restraint of trade or commerce in Maine, and a consummated transaction in accordance
therewith would be a combination in restraint of trade or commerce in Maine, both in
violation of 10 M.R.S.A. §1101. A consummated transaction would also substantially
lessen competition or tend to create a monopoly in lines of commerce in Maine, including
in the sale of forest products, in violation of 10 M.R.S.A. §1102-A.
145.

The monopoly rents that CVG could enjoy from restraining trade in the

manner described above positioned them to outbid entities like OTU, who lack the

45

 horizontal and vertical market power to extract such rents, and was a factor in MFGR’s
decision to breach its contracts with OTU in favor of sale to CVG and its associates, and
in Deschenes’s and OTH’s efforts to induce MFGR’s breach.
146.

Firestone is liable individually, and not merely as a principal for MFGR,

and Deschenes is liable individually, and not merely as a principal for OTH, for
violations of Maine’s Monopolies and Profiteering laws.
147.

Remedies at law are not adequate to address the Defendants’ efforts to

restrain trade in the forest products industry.
148.

The Plaintiffs have a likelihood of success on the merits of their claims in

this count.
149.

Irreparable injury would result to the Plaintiffs, absent injunctive relief,

and the irreparable injury to the Plaintiffs would outweigh harm to the Defendants.
150.

The public interest would not be harmed by the granting of injunctive

relief. It would be enhanced by the protection of the public from restraint of trade in the
forest products industry.
151.

As a result of these violations of Maine’s Monopolies and Profiteering

laws, OTU has suffered damages, including but not limited to: deprivation of the value of
purchasing the Facility; exclusion from the team implementing the ConEd Solutions
Energy RFP Bid; and expenditure of time, money and resources in pursuing the
transaction, lining up financing, tenants and development partners.
WHEREFORE, OTU, Relentless and Eakin respectfully request that this Court
grant judgment in favor of Plaintiffs and against Defendants MRGH, Firestone, OTH,
and Deschenes, jointly and severally, award Plaintiffs treble damages, award

46

 prejudgment and postjudgment interest, award Plaintiffs their costs, attorneys’ fees,
necessary and reasonable investigative costs, and reasonable experts’ fees, enjoin sale of
the Facility to CVG, to any buyer directly or indirectly affiliated with or controlled by
CVG, or to any other buyer whose acquisition of the Facility would restrain trade in the
forest products industry, and award Plaintiffs such other relief as the Court deems
appropriate.
COUNT VIII
BREACH OF CONTRACT (Plaintiffs OTU, Relentless and Eakin vs. Defendants
OTH and Deschenes)
152.

The Plaintiffs reallege and incorporate by reference the allegations of

Paragraphs 1 through 151 of this Complaint.
153.

OTH, by accepting membership and an active management role in OTU in

January 2016, bound itself to a contract that reflected the basic fiduciary duty and duties
of loyalty and care that apply to limited liability companies under Maine statute (31
M.R.S.A. c. 21) and common law (the “COF Agreement”), absent abrogating language in
an operating agreement. The COF Agreement was a valid and enforceable agreement to
which OTH, OTU and Relentless were parties.
154.

The OTU Operating Agreement was a valid and enforceable agreement to

which OTH, Deschenes, OTU, Eakin and Relentless were parties. It also reflected and
ratified the COF Agreement between OTU, Relentless, Sewall and OTH that was
manifest through the combination of OTU's certificate of formation and each entity’s
acceptance of ownership in OTU and participation in active management of OTU.
155.

The OTU Operating Agreement expressly confirmed the Managers’ duty

of loyalty to OTU, duty not to exploit a business opportunity without first disclosing and

47

 offering it to the LLC, and duty of confidentiality, all of which duties were inherent in the
COF Agreement.
156.

OTH and Deschenes breached the COF Agreement, and later the OTU

Operating Agreement, as well as their duty of loyalty, their duty not to exploit a business
opportunity without first disclosing it to OTU, and their duty of confidentiality when
they: facilitated CVG’s opportunity to purchase the Facility from MFGR and participate
in the Con Ed RFP team from March 2016 onward; provided OTU's confidential and
proprietary information as part of that facilitation from March 2016 onward; deceived
OTU regarding their intention to facilitate a competitor’s efforts from March 2016
onward (particularly but not limited to at the time of their March 2016 and August 2016
withdrawals from OTU); withheld from OTU information about their work with CVG
and about CVG’s approaches to and later agreements with Con Ed and MFGR; and
sought to procure waivers of confidentiality and noncompete obligations by deceiving
OTU with respect to their intention to facilitate and history of facilitating a competitor’s
(CVG’s) efforts to compete with OTU in acquiring the Facility and capitalizing on the
opportunity in the Con Ed RFP bid. OTU did not waive any of these rights with respect
to activities of OTH and Deschenes that might be in direct competition with OTU.
During the time extending from the beginning of OTH’s and Descehnes’s efforts to
induce a purchase agreement between CVG and MFGR, and the September 1, 2016 letter
of intent between those parties, OTH was still a member of OTU and Deschenes was still
a manager.
157.

As a result of OTH’s and Deschenes’s breaches, the Plaintiffs have

suffered damages, including but not limited to: deprivation of the value of purchasing the

48

 Facility; exclusion from the team implementing the ConEd Solutions Energy RFP Bid;
and expenditure of time, money and resources pursuing the transactions and lining up
financing, tenants and development partners.
WHEREFORE, The Plaintiffs respectfully request that this Court grant judgment
in favor of Plaintiffs OTU, Relentless and Eakin and against Defendants OTH and
Deschenes, award the Plaintiffs damages, award prejudgment and postjudgment interest,
and award Plaintiffs such other relief as the Court deems appropriate.
COUNT IX
BREACH OF FIDUCIARY DUTY (Plaintiffs OTU, Relentless and Eakin vs.
Defendants OTH and Deschenes)
158.

The Plaintiffs reallege and incorporate by reference the allegations of

Paragraphs 1 through 157 of this Complaint.
159.

Both (i) OTH as a coequal member with Sewall and Relentless and (ii)

Deschenes as a manager had a fiduciary relationship with OTU and its members, and
owed OTU and its members a duty of loyalty. These relationships and duties were
established at the time OTU's certificate of formation was filed, pursuant to 31 M.R.S.A.
c. 21 and the common law, and were later expressly confirmed in the OTU Operating
Agreement.
160.

OTH and Deschenes breached their fiduciary duty and duty of loyalty to

OTU and to Relentless in facilitating CVG’s opportunity to purchase the Facility and to
supplant Relentless on the Con Ed RFP team from March 2016 onward, and by failing to
disclose to Eakin their activities, knowledge and intentions with regard to CVG.
161.

In facilitating CVG’s opportunity to purchase the Facility from MFGR and

participate in the Con Ed RFP team from March 2016 onward, OTH and Deschenes

49

 breached their respective fiduciary duty and duty of loyalty to OTU and its members
through self-dealing, usurpation of corporate opportunity, misrepresentation and omission
of material facts, inducement, disclosure and misuse of confidential information, misuse
of superior knowledge, failure to disclose, and rendering inappropriate advice.
162.

In providing OTU's confidential and proprietary information as part of that

facilitation from March 2016 onward, OTH and Deschenes breached their respective
fiduciary duty and duty of loyalty to OTU and its members through self-dealing,
usurpation of corporate opportunity, inducement, disclosure and misuse of confidential
information, and failure to disclose.
163.

In deceiving OTU regarding their intention to facilitate a competitor’s

efforts from March 2016 onward, and particularly at the time of their March 2016 and
August 2016 withdrawals from OTU, OTH and Deschenes breached their respective
fiduciary duty and duty of loyalty to OTU and its members through self-dealing,
usurpation of corporate opportunity, misrepresentation and omission of material facts,
inducement, disclosure and misuse of confidential information, misuse of superior
knowledge, failure to disclose, and rendering inappropriate advice.
164.

In withholding from OTU information about their work with CVG and

about CVG’s approaches to and later agreements with Con Ed and MFGR, and in seeking
to procure waivers of confidentiality and noncompete obligations by deceiving OTU with
respect to their intention to facilitate and history of facilitating a competitor’s (CVG’s)
efforts to compete with OTU in acquiring the Facility and capitalizing on the opportunity
in the Con Ed RFP bid, OTH and Deschenes breached their respective fiduciary duty and
duty of loyalty to OTU and its members through self-dealing, usurpation of corporate

50

 opportunity, misrepresentation and omission of material facts, inducement, disclosure and
misuse of confidential information, misuse of superior knowledge, failure to disclose, and
rendering inappropriate advice.
165.

Remedies at law are inadequate for OTH’s and Deschenes’s breach of

fiduciary duty and duty of loyalty.
166.

As a result of OTH’s and Deschenes’s breach of fiduciary duty and duty

of loyalty, the Plaintiffs have suffered damages, including but not limited to: deprivation
of the value of purchasing the Facility; exclusion from the team implementing the ConEd
Solutions Energy RFP Bid; and expenditure of time, money and resources pursuing the
transactions and lining up financing, tenants and development partners.
WHEREFORE, The Plaintiffs respectfully request that this Court grant judgment
in favor of Plaintiffs OTU, Relentless and Eakin and against Defendants OTH and
Deschenes, award the Plaintiffs damages, award prejudgment and postjudgment interest,
require an accounting, impose constructive trusts with respect to any assets or proceeds
thereof that OTH or Deschenes procured as a result of their breach of fiduciary duty and
duty of loyalty, and award Plaintiffs such other relief as the Court deems appropriate.
Dated at Scarborough, Maine, this 9th day of February, 2018.
______________________________
CLIFFORD M. GINN, Bar No. 9919
GINN LAW, LLC
62 Marion Jordan Road
Scarborough, ME 04074
(207) 274-0001
Attorney for Plaintiffs
Old Town Utility & Technology Park, LLC,
Relentless Capital Company, LLC, and
Samuel Eakin

51

 VERIFICATION

I, Samuel Eakin, in my individual capacity, in my capacity as Managing Partner
of Old Town Utility Technology Park, LLC, and in my capacity as Managing Director
of Relentless Capital Company, LLC, have personal knowledge of all the facts stated
above, except with respect to statements identi?ed as being made on information and
belief. I am over 21 years of age, and am competent to testify to the matters set forth
above. I hereby swear under pains and penalties of perjury that all of those facts
pertaining to the Defendants are true and accurate to the best of my knowledge,

information, and belief.



Date: February 9 2018 
Samuel Eakin, Individually, as Manager of
Old Town Utility Technology Park,
LLC, and as Manager of Relentless Capital
Company, LLC,

State of Maine,
County of Cumberland

Personally appeared before me the above-named Samuel Eakin, in his individual
capacity, in his capacity as Manager of Old Town Utility Technology Park, LLC, and
in his capacity as Manager of Relentless Capital Company, LLC, and acknowledged the
foregoing instrument to be his free act and deed in his said capacities and the free act and
deed of Old Town Utility Technology Park, LLC and of Relentless Capital Company,
LLC.

Dated at i 2% Ep?gg A Maine this 9 day of February, 2018.

 

Printed Name: 817%

My Commission Expires:

 

SHELBY A MCKENNA
Notary Public. Maine
My Commission Expires February 7. 2019