THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST ...bloximages.newyork1.vip.townnews.com/virginislandsdailynews.com… · Trafigura Trading LLC v. V.I. Water and Power Authority

THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN

TRAFIGURA TRADING LLC, Plaintiff, v. VIRGIN ISLANDS WATER AND POWER AUTHORITY, Defendant.

) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL NO. 16-cv-_____ ACTION FOR BREACH OF CONTRACT, BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING AND UNJUST ENRICHMENT

COMPLAINT

Plaintiff Trafigura Trading LLC (“Trafigura”), through its attorneys, Dudley, Topper and

Feuerzeig, LLP, respectfully alleges:

JURISDICTION AND VENUE

1. This Court has subject matter jurisdiction, pursuant to 28 U.S.C. § 1332 and 48

U.S.C. § 1612(a), because there is complete diversity of citizenship between the parties and the

amount in controversy exceeds, exclusive of interest and costs, the sum of $75,000.00.

2. Venue is proper in this Court because, among other things, the events that gave

rise to this cause of action took place in the United States Virgin Islands, and because this Court

can properly exercise personal jurisdiction over Defendant.

THE PARTIES

3. Trafigura is a limited liability company organized and existing under the laws of

the State of Delaware with its principal place of business in Houston, Texas. Trafigura is one of

the world’s leading independent commodity trading and logistics houses. Trafigura is duly

authorized to carry on its business in the United States Virgin Islands.

Case: 3:16-cv-00028-CVG-RM Document #: 1 Filed: 04/05/16 Page 1 of 10

Complaint Trafigura Trading LLC v. V.I. Water and Power Authority Page 2

4. Defendant Virgin Islands Water and Power Authority (“WAPA”) is a semi-

autonomous public business entity and an instrumentality of the Government of the U.S. Virgin

Islands, and is considered a non-for-profit public corporation. Among other things, WAPA is an

electric utility and requires No. 2 distillate fuel oil to power its turbines at plants at Krum Bay,

St. Thomas and Estate Richmond on St. Croix for the purpose of generating electricity for public

consumption in the Territory of the U.S. Virgin Islands. WAPA is authorized to sue and be sued

in its corporate name pursuant to V.I. Code Ann. tit. 30, § 105(4).

FACTS

A. Background

5. A significant portion of Trafigura’s business is the selling of crude oil distillates

to oil-fired electrical generating facilities such as WAPA, as was that of Trafigura’s corporate

predecessor, Trafigura AG (“TAG”), a Swiss company which transacted with WAPA through its

Houston, Texas branch office.

6. WAPA generates electric power for public consumption throughout the Virgin

Islands at its St. Croix and St. Thomas generating stations. For many years, WAPA purchased

all of the No. 2 distillate fuel oil needed for its operations from HOVENSA, a corporate entity

that operated a petroleum refinery on St. Croix.

7. In 2012, HOVENSA declared that it was ceasing oil refining operations and

therefore would no longer be in a position to sell No. 2 distillate fuel oil to WAPA.

8. In August 2012, WAPA issued a Request for Proposal (“RFP”) seeking bids from

suppliers to take HOVENSA’s place. After a public bidding process in which twelve (12)

suppliers participated, TAG was awarded the contract to supply WAPA with all of its No. 2



distillate fuel oil needs. The supply contract between TAG and WAPA was finalized and

implemented in late October 2012.

9. Between November 2012 and early 2015, TAG supplied WAPA with all of its

No. 2 distillate fuel oil requirements pursuant to a series of contracts secured by public RFPs to

ensure competitive terms.

B. The WAPA/Trafigura Contract

10. In early 2015, WAPA publicly issued another RFP seeking bids to supply WAPA

with No. 2 distillate fuel oil.

11. In response to this RFP, Trafigura, now the corporate successor to TAG, offered

to No. 2 distillate fuel oil to WAPA for delivery at WAPA’s marine terminals at Krum Bay, St.

Thomas and Estate Richmond in St. Croix. Trafigura’s offer was the low bid among entities

responding to the RFP.

12. On or about February 25, 2015, Trafigura and WAPA entered into a written

contract for Trafigura to sell and WAPA to purchase No. 2 distillate fuel oil (the “Contract”). A

true and correct copy of the Contract is attached hereto as Exhibit A.

13. The Contract obligated Trafigura to sell to WAPA all of its requirements for No.

2 distillate fuel oil for a four-month period beginning on March 1, 2015. The Contract expired

on its own terms on June 30, 2015, unless extended by the parties.

14. WAPA was obligated to pay Trafigura the amount invoiced for No. 2 distillate

fuel oil delivered pursuant at a price determined by the formula set for in Article IX, ¶¶ A-D of

the Contract.

15. Under Article IX, ¶ E of the Contract, WAPA was obligated to pay Trafigura the

total amount of each Trafigura invoice in United States currency and immediately available



funds within sixty (60) days of delivery of the associated No. 2 distillate fuel oil. Under Article

IX, ¶ E of the Contract, if WAPA breached its obligation to pay Trafigura’s invoices within sixty

(60) days of delivery interest would accrue on the outstanding balance from the due date until the

date of payment at either the maximum interest allowed by law or a rate equal to the then-

effective prime rate of interest published under “Money Rates” in the Wall Street Journal plus

two percent per annum, whichever was lower.

16. Trafigura had the right under Article I, ¶ C of the Contract to suspend deliveries to

WAPA of No. 2 distillate fuel oil if the amount owed by WAPA under the Contract exceeded an

aggregate credit cap of $25,000,000.00.

17. Trafigura fully performed all of its obligations to WAPA under the Contract and

at all times relevant was and is ready, willing and able to deliver No. 2 distillate fuel oil to

WAPA under the terms of the Contract.

18. WAPA, however, has refused to pay the outstanding balance WAPA has been

duly invoiced by Trafigura. To date, WAPA owes and is obligated to pay Trafigura the sum of

no less than $24,644,426.82 for deliveries made by WAPA under the Contract.

19. Upon information and belief, when the Contract expired WAPA secured a new

supplier of No. 2 distillate fuel oil on terms less favorable to WAPA (and its customers, the rate-

paying public) than they might otherwise have been if Trafigura had participated in the RFP

process. Trafigura, however, will not enter any new supply contract with WAPA until it pays the

balance of the funds WAPA now owes Trafigura. WAPA’s breach of the Contract has resulted

in a material limitation of the number of No. 2 distillate fuel oil suppliers to competitively bid on

WAPA’s business.



20. On October 20, 2015, Trafigura’s counsel sent a letter to Hugo V. Hodge, Jr.

(“Hodge”), then WAPA’s Chief Executive Officer, formally notifying WAPA that it was in

breach of the Contract. A copy of the letter is attached hereto as Exhibit B. Trafigura demanded

payment of the outstanding amount then owed by WAPA of approximately $23,500,000.00.

Trafigura informed WAPA that it would initiate legal proceedings to collect the $23,500,000.00

if Trafigura did not receive payment from WAPA by October 23, 2015.

21. Hodge responded to the letter described in paragraph 16 above by letter dated

October 22, 2015, a copy of which is attached hereto as Exhibit C. Hodge admitted that WAPA

had breached the Contract but placed the blame for WAPA’s breach on “critically difficult

financial challenges” which allegedly had resulted in WAPA’s “inability to pay the outstanding

balance.” Hodge requested that Trafigura refrain from pursuing legal action against WAPA until

WAPA came up with a “payment plan that will eradicate the outstanding balance in its entirety

and fully settle this matter.”

22. Upon information and belief, WAPA’s alleged “financial challenges” did not

prevent it from entering into new supply contracts with Glencore, Ltd. (“Glencore”). Indeed, on

August 18, 2015, WAPA publicly announced that it had entered into a supply contract with

Glencore. (Exhibit D (WAPA press release).) On February 25, 2016, WAPA publicly

announced that its supply contract with Glencore had been extended through June 2017.

(Exhibit E (WAPA press release).) Upon information and belief, Glencore has already received

payment under its contract with WAPA in excess of the $24,644,426.82 that WAPA owes to

Trafigura – funds that clearly could and should have been used to pay Trafigura’s outstanding

invoices to WAPA.



23. Trafigura took Hodge at his word that a payment plan would be forthcoming that

would permit WAPA to pay off its debt to Trafigura, and therefore refrained from taking legal

action against WAPA to collect the $24,644,426.82 WAPA owes under the Contract. However,

no “payment plan” was ever proposed by WAPA, despite ample time in which to draft such an

agreement.

24. It became evident to Trafigura that despite Hodge’s insistence that “critically

difficult financial challenges” had prevented WAPA from making even a modest partial payment

to Trafigura, WAPA had ample opportunities to secure funding to pay of its $24,644,426.82 debt

to Trafigura.

25. First, of course, is the fact that WAPA was financially able to secure and pay

Glencore as its new supplier without paying Trafigura for fuel already delivered under the

Contract.

26. Second, according to a Post-Audit Report dated September 21, 2015 prepared for

the Virgin Islands Legislature during budget hearings in September 2015, the Territorial Central

Government then owed WAPA approximately $42,000,000.00 for electric and water service and

the hospitals, and other local V.I. government agencies owed millions more. In spite of the

significant unpaid obligations to WAPA, when the Territorial Central Government announced on

February 17, 2016, receipt of $220,000,000.00 from the disposition of the HOVENSA refinery

assets, only $10,000,000.00 was earmarked for WAPA as payment governmental obligations.

Upon information and belief, in truth WAPA has received only a fraction of these earmarked

funds – funds urgently needed so that WAPA, in turn, can pay its outside vendors such as

Trafigura.



27. According to media reports such as http://viconsortium.com/business/only-35-

million-remain-from-220-arclight-windfall-vi-economy-continues-to-struggle/, as of February

17, 2016, only $35,000,000.00 of the $220,000,000.00 described in paragraph 26 remained

available to fund WAPA’s obligations to Trafigura.

28. Also, upon information and belief, the V.I. Public Financing Authority paid down

$60,000,000.00 of a line of credit it has with a local banking institution from the

$220,000,000.00 in funds received from the disposition of the HOVENSA refinery assets.

29. Third, in prior years, in 2008, when the fuel supplier to WAPA was owed funds

that WAPA could not pay from its current cash flow, the Virgin Islands Legislature enacted Act

No. 7028, which provides in pertinent part: “The Governor of the Virgin Islands ... may take any

action necessary to assist [WAPA], including without limitation, executing appropriate

documents necessary for the Government to provide a guarantee to support a line of credit for the

Authority in meeting its fuel costs.” This statute is still in effect, and it has been used by WAPA

to issue a note for purposes of paying for its fuel costs. Upon information and belief, in

accordance with the authority conferred by Act No. 7028, a $40,000,000.00 line of credit was

established with a local bank in order to pay WAPA’s then-outstanding fuel bill. Act No. 7028

is still the law and quite clearly, the situation with Trafigura justifies utilization of its financing

mechanism. The credit facility has been paid down to approximately $1,600,000.00, but it

currently and expires on August 1, 2016, unless there is a refinancing of that credit facility. Act

No. 7028 would therefore provide WAPA with substantially more than enough financing to pay

off its debt to Trafigura in its entirety.


http://viconsortium.com/business/only-35-million-remain-from-220-arclight-windfall-vi-economy-continues-to-struggle/

http://viconsortium.com/business/only-35-million-remain-from-220-arclight-windfall-vi-economy-continues-to-struggle/


30. WAPA, however, has not even attempted to employ any of the viable means of

financing the full payment of its debt to Trafigura that are currently available to it under Virgin

Islands law.

31. On March 3, 2016, Trafigura sent a letter to Gerald Groner, Esq., Chairman of the

Board of WAPA, making a final demand for payment of all of the sums due Trafigura under the

Contract and outlining the potential financing available to WAPA described in paragraphs 22

through 25 above. A copy of the letter is attached hereto as Exhibit F.

32. To date, Trafigura has not received a response from WAPA to the March 3, 2016,

letter.

COUNT ONE BREACH OF CONTRACT

33. Trafigura repeats and realleges paragraphs 1 through 32 above as if fully set forth

herein.

34. Under the Contract, WAPA has a duty to pay Trafigura for the delivery of No. 2

distillate fuel oil.

35. The conduct of WAPA described in paragraphs 1 through 34 above violates

WAPA’s duty to Trafigura and constitutes a material breach of the Contract.

36. Trafigura has been damaged by WAPA’s material breach of the Contract in an

amount to be proven at trial and in no event less than $24,644,426.82.

COUNT TWO BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING


herein.



38. By failing to collect approximately $42,000,000.00 the Territorial Central

Government owes WAPA for electric and water service supplied to local V.I. government

agencies which in turn could be used by WAPA to pay vendors such as Trafigura, at a time when

the government had $220,000,000.00 at its disposal from the disposition of the HOVENSA

refinery assets and could have easily paid its WAPA bills, breached WAPA’s obligations under

the covenant of good faith and fair dealing implied in the Contract.

39. WAPA also breached its obligations under the covenant of good faith and fair

dealing implied in the Contract by failing to implement the financing mechanism described in

Act No. 7028 and instead defaulting on WAPA’s obligations to Trafigura.

40. Trafigura has been damaged by WAPA’s material breaches of the covenant of

good faith and fair dealing implied in the Contract in an amount to be proven at trial, and in no

event less than $24,644,426.82.

COUNT THREE UNJUST ENRICHMENT


herein.

42. WAPA had appreciation or knowledge of the benefits it received from Trafigura.

43. As a result of the conduct described in paragraphs 1 through 42 above, WAPA

has been enriched.

44. WAPA’s enrichment was at the expense of Trafigura.

45. The circumstances are such that in equity or good conscience WAPA should

return to Trafigura either the No. 2 distillate fuel oil delivered to WAPA by Trafigura or its value

of $24,644,426.82.



WHEREFORE, Trafigura respectfully requests this Court to enter judgment in its favor

against WAPA: (i) for compensatory damages in an amount to be determined at trial; (ii) plus

prejudgment and post-judgment interest as provided by law and the terms of the Contract; (iii)

Trafigura’s costs, including reasonable attorney’s fees; and (iv) such other relief as the Court

deems just and proper.

DUDLEY, TOPPER and FEUERZEIG, LLP Dated: April 4, 2016 By:s/Michael C. Quinn Michael C. Quinn (V.I. Bar No. 1101) Law House - 1000 Frederiksberg Gade P.O. Box 756 St. Thomas, VI 00802 Telephone: (340) 715-4405 Facsimile: (340) 715-4400 Email: [email protected]

Attorneys for Trafigura Trading LLC


mailto:[email protected]

OJS 44 (Rev. 11/04) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as providedby local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number) Attorneys (If Known)

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’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

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& Enforcement of Judgment Slander ’ 368 Asbestos Personal ’ 640 R.R. & Truck ’ 820 Copyrights ’ 470 Racketeer Influenced and’ 151 Medicare Act ’ 330 Federal Employers’ Injury Product ’ 650 Airline Regs. ’ 830 Patent Corrupt Organizations’ 152 Recovery of Defaulted Liability Liability ’ 660 Occupational ’ 840 Trademark ’ 480 Consumer Credit

Student Loans ’ 340 Marine PERSONAL PROPERTY Safety/Health ’ 490 Cable/Sat TV(Excl. Veterans) ’ 345 Marine Product ’ 370 Other Fraud ’ 690 Other ’ 810 Selective Service

’ 153 Recovery of Overpayment Liability ’ 371 Truth in Lending LABOR SOCIAL SECURITY ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 380 Other Personal ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle Property Damage Act ’ 862 Black Lung (923) ’ 875 Customer Challenge’ 190 Other Contract Product Liability ’ 385 Property Damage ’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g)) 12 USC 3410’ 195 Contract Product Liability ’ 360 Other Personal Product Liability ’ 730 Labor/Mgmt.Reporting ’ 864 SSID Title XVI ’ 890 Other Statutory Actions’ 196 Franchise Injury & Disclosure Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts

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Employment ’ 550 Civil Rights to Justice’ 446 Amer. w/Disabilities - ’ 555 Prison Condition ’ 950 Constitutionality of

Other State Statutes’ 440 Other Civil Rights

V. ORIGINTransferred fromanother district(specify)

Appeal to DistrictJudge fromMagistrateJudgment

(Place an “X” in One Box Only)’ 1 Original

Proceeding’ 2 Removed from

State Court’ 3 Remanded from

Appellate Court’ 4 Reinstated or

Reopened’ 5 ’ 6 Multidistrict

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VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case: 3:16-cv-00028-CVG-RM Document #: 1-1 Filed: 04/05/16 Page 1 of 2

JS 44 Reverse (Rev. 11/04)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as requiredby law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the useof the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaintfiled. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use onlythe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, givingboth name and title.

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Brief Description: Unauthorized reception of cable service

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Date and Attorney Signature. Date and sign the civil cover sheet.



































































AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

’ I personally served the summons on the individual at (place)

on (date) ; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:


Documents

THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST ...bloximages.newyork1.vip.townnews.com/virginislandsdailynews.com… · Trafigura Trading LLC v. V.I. Water and Power Authority