Nano Gas Technologies, Incorpo v. Clifton Roe ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-1809 & 21-1822
NANO GAS TECHNOLOGIES, INCORPORATED,
Plaintiff-Appellee, Cross-Appellant,
v.
CLIFTON ROE,
Defendant-Appellant, Cross-Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-02241 — Sharon Johnson Coleman, Judge.
____________________
ARGUED DECEMBER 7, 2021 — DECIDED APRIL 25, 2022
____________________
Before ROVNER, ST. EVE, and JACKSON-AKIWUMI, Circuit
Judges.
ST. EVE, Circuit Judge. These cross-appeals are the latest
battleground in a long-standing dispute between an inventor
and the company that owns his invention. Clifton Roe as-
signed his invention to Nano Gas Technologies, Incorporated
(“Nano Gas”) in return for equity, a board seat, and a poten-
tial salary. After the business relationship soured, Roe picked
up his invention and left. Pursuant to the assignment
2 Nos. 21-1809 & 21-1822
agreement, arbitration followed. The arbitrator recognized
that, while Roe harmed Nano Gas, Nano Gas benefited from
Roe’s invention. The arbitrator fashioned a unique remedy,
awarding damages to both parties that, once offset, required
Roe to compensate Nano Gas for a lesser amount. All agree
that the arbitrator’s award is not a picture of clarity. The dis-
trict court attempted to interpret the award. Both parties ap-
peal and ask us to take a second look.
I. Background
Roe invented a nozzle that transforms gases into liquids.
Roe assigned the nozzle to Nano Gas, hoping to commercial-
ize this technology. The terms of the assignment agreement
granted Roe 20% equity in Nano Gas and a board seat. It also
tied Roe’s salary to Nano Gas successfully raising capital or
Roe successfully developing the technology into a working
machine, whichever came first. Nano Gas and Roe failed to
satisfy either condition before frustrations boiled over. Roe
left Nano Gas, taking with him a prototype machine and a box
of Nano Gas’s intellectual property produced by Jeff Hardin,
another employee. Roe continued to develop the technology
on his own. After an unsuccessful scuffle before a federal
court in the Eastern District of Michigan, the parties entered
arbitration.
The arbitrator generally found for Nano Gas, determining
that Roe should compensate Nano Gas for the financial harms
Roe caused when he continued to use the technology and
made off with the Hardin work papers. Concurrently, the ar-
bitrator balanced the equities and found that Roe deserved
some compensation for his work. The arbitrator explained
that it considered other ways of compensating Roe but
Nos. 21-1809 & 21-1822 3
determined that an offset of two financial awards was appro-
priate. The award stated the following:
Roe will have contributed a great deal to whatever suc-
cess the Nano Gas machine ultimately achieves. The
Arbitrator has decided that equity requires that some
form of award be made to Roe for all that he has con-
tributed. That award, however, should be in the form
of an offset against the Arbitrator’s award to Nano Gas.
The Arbitrator considered awarding Roe some sort of
royalty on future profits that might flow from the Nano
Gas machine or other related intellectual property, but
decided against this. It should be noted in this regard
that Roe remains a major shareholder in Nano Gas, and
that, as such, he could benefit financially from this in
the future should Nano Gas experience profitability
and an increase in value.
The arbitrator then made the following money awards, ad-
dressing both the Hardin work papers and the offset:
Roe is ordered to conduct a further search for the box
of Hardin work-papers and to return same to Nano
Gas or, in the event that Roe is unable to do that, to pay
to Nano Gas the sum of $150,000.
Roe is ordered to pay damages to Nano Gas in the
amount of $1,500,000, with such payment to be made
by (1) first, subtracting from the amount to be paid to
Roe by Nano Gas under this decision ($1,500,000) the
amount to be paid to Nano Gas by Roe under this de-
cision ($1,000,000) and (2) thereafter, the remainder
($500,000) in such manner as Roe chooses.
4 Nos. 21-1809 & 21-1822
Nano Gas is ordered to pay Roe the amount of
$1,000,000, to be paid by Nano Gas by subtracting this
amount from the amount Roe is ordered to pay Nano
Gas.
In effect, Nano Gas satisfied its obligation to Roe without fur-
ther action. Roe received $1,000,000 back instantly on the
money he owed Nano Gas. But Roe’s obligation to Nano Gas,
a significant sum of $500,000 (or $650,000 if Roe did not return
the Hardin work papers), remained outstanding.
Nano Gas filed a complaint in the Northern District of Illi-
nois to enforce the award and enter judgment for $650,000.
The district court did both. Then, Nano Gas filed a turnover
motion seeking Roe’s Nano Gas stock, valued at approxi-
mately $117,000. See Fed. R. Civ. P. 69 (instructing courts to
apply state law in post-judgment proceedings); 735 ILCS 5/2-
1402 (providing Illinois procedure for enforcing a judgment).
Roe resisted. He argued that the award explicitly stated he
could pay the remaining amount “in such manner as Roe
chooses,” and provided he remain a Nano Gas shareholder.
Nano Gas filed a supplemental turnover motion, wherein it
argued that Roe had no intention of paying the award. At a
hearing on the motion, Nano Gas informed the district court
that Roe first voiced his interpretation of the award during a
deposition related to Nano Gas’s citation to discover assets. In
his deposition, Roe stated he intended to pay off the award
with dividends from the stock and claimed the award gave
him the power to wait until he died and satisfy the debt
through his estate. Roe’s interpretation seems to have blind-
sided Nano Gas.
The district court denied Nano Gas’s turnover motion. It
found that Roe had the power to pay both the $500,000 award
Nos. 21-1809 & 21-1822 5
and the $150,000 award for the Hardin work papers, “in such
manner as Roe chooses.” It also reasoned that the award
stated Roe would continue to benefit as a shareholder.
Nano Gas filed a motion to reconsider. See Fed. R. Civ. P.
59(e). It argued that Roe’s power to choose did not apply to
the $150,000 award for the Hardin work papers. The district
court granted the motion and amended its order. It main-
tained its interpretation that Roe could choose how to pay the
$500,000 award, but ordered Roe to turn over the Nano Gas
stock or identify other assets to satisfy the $150,000 award.
Roe then filed his own motion to reconsider. He argued that
the district court’s amendment conflicted with its prior ruling
that Roe remain a shareholder. The district court denied the
motion. It determined that Roe’s award was the offset, not in-
definite shareholder status.
II. Discussion
Roe appeals the district court’s denial of his motion to re-
consider. Nano Gas cross-appeals the district court’s findings
regarding Roe’s discretion to satisfy the $500,000 award. Re-
viewing the district court’s turnover orders resolves both ap-
peals.
A turnover order is a final judgment. We review de novo
the district court’s ruling on Nano Gas’s motion. Maher v. Har-
ris Tr. & Sav. Bank, 506 F.3d 560, 561–62 (7th Cir. 2007) (citing
Soc’y of Lloyd’s v. Est. of McMurray, 274 F.3d 1133, 1134 (7th
Cir. 2001)); see also United States v. Sayyed, 862 F.3d 615, 617
(7th Cir. 2017). Simultaneously, “[j]udicial review of arbitra-
tion awards is tightly limited.” Standard Sec. Life Ins. Co. of N.Y.
v. FCE Benefit Adm’rs, Inc., 967 F.3d 667, 671 (7th Cir. 2020)
(quoting Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704,
6 Nos. 21-1809 & 21-1822
706 (7th Cir. 1994)). The Federal Arbitration Act (“FAA”), and
the Supreme Court, indicate that “arbitration awards are
largely immune from … scrutiny in court.” Cont’l Cas. Co. v.
Certain Underwriters at Lloyds of London, 10 F.4th 814, 816 (7th
Cir. 2021); see 9 U.S.C. §§ 9–11.
Though neither party seeks to modify the award under
FAA § 11, the wrong interpretation may inadvertently alter
the award. See United Steel, Paper & Forestry, Rubber, Mfg., En-
ergy, Allied Indus. & Serv. Workers Int’l Union v. PPG Indus., Inc.,
751 F.3d 580, 584 (7th Cir. 2014) (noting that a party effectively
asked the Court “to write in the margins of the arbitrator’s
decision and add [favorable] language”). We may not alter the
arbitrator’s award. Instead, we must enforce the award as
written and “if possible, resolve apparent ambiguities by ex-
amining the arbitrator’s opinion and the record.” Id. at 585 (ci-
tations omitted); see Tri-State Bus. Machs., Inc. v. Lanier World-
wide, Inc., 221 F.3d 1015, 1017 (7th Cir. 2000).
First, we consider Roe’s contention that the award entitles
him to remain a shareholder. We agree with the district court
that the award is devoid of any language indicating Roe shall
remain a shareholder indefinitely. The award can only be read
as informing the parties that the arbitrator considered award-
ing Roe a right to future profits but declined to do so. The ref-
erence to Roe’s shareholder status at most serves as an equi-
table consideration for why the arbitrator determined the off-
set was the appropriate award. It is merely explanatory, sep-
arate from the arbitrator’s ultimate ruling. The award only
grants Roe the $1,000,000 offset—his Nano Gas shares are fair
game.
Second, we consider Roe’s claim that the award prevents
Nano Gas, or the courts, from determining how Roe pays his
Nos. 21-1809 & 21-1822 7
$500,000 obligation to Nano Gas. Though Roe invites ambigu-
ity through an alternative reading of “in such manner as Roe
chooses,” his reading is unreasonable. The award lacks any
indication that the arbitrator granted Roe complete discretion
to decide if, when, and how Roe pays the award during his
lifetime. The “manner” Roe chooses does not mean the “time”
Roe chooses. Rather, we can only conclude that the arbitrator
intended for Roe to satisfy his obligations to Nano Gas in the
usual post-arbitration proceedings. If Roe had multiple assets
which could satisfy the judgment, he could choose which as-
sets to deliver. If Roe failed to pay Nano Gas on his own ac-
cord, Nano Gas could turn to the courts to recover what Roe
owed. But Roe cannot refuse to turn over his only identifiable
asset, choose hypothetical forms of payment that may never
come to fruition, or require Nano Gas to wait until he dies.
Both the language of the arbitrator’s opinion and common
sense easily resolve this issue.
Courts may remand to the arbitrator to clarify an award.
See United Steel, 751 F.3d at 585 (citing Bhd. of Locomotive Eng’rs
& Trainmen v. Union Pac. R.R. Co., 500 F.3d 591, 592 (7th Cir.
2007)). Yet it is unnecessary and impractical to do so here. The
arbitrator entered its award over five years ago and, at oral
argument, Roe’s counsel could not confirm the arbitrator’s
whereabouts. When an award’s language compels only one
conclusion, the parties need not track down the arbitrator to
confirm the obvious. Resolving this matter today allows Nano
Gas to return to the district court and resume enforcing the
8 Nos. 21-1809 & 21-1822
judgment without needless delay. Nano Gas has waited long
enough. *
III. Conclusion
For the foregoing reasons, we reverse the district court’s
findings regarding Roe’s discretion to satisfy the $500,000
award and affirm the district court’s amended judgment as to
the $150,000 award for the Hardin work papers. We remand
for further proceedings consistent with this opinion.
* At oral argument, Roe’s counsel indicated that Roe has moved on to
another company with a new, better invention. Given Roe’s apparent re-
cent business success, he may have new assets to satisfy the award without
forfeiting his stock. We leave these issues in the capable hands of the dis-
trict court.