Jack R. Shirley

Kirkland & Ellis counseled ESGEN Acquisition Corp. (NASDAQ: ESAC), a special purpose acquisition company, on its definitive business combination agreement with Sunergy Renewables, LLC (Sunergy), a leading provider of residential solar and energy efficiency solutions. Upon closing of the business combination, which is expected during the fourth quarter of 2023 subject to customary closing conditions, Sunergy will become a publicly traded company with an expected pro forma enterprise value of $475 million. ESGEN is backed by Energy Spectrum Partners VIII LP. Read the joint press release The Kirkland team was led by corporate partners Kevin Crews and Jack Shirley and capital markets partners Julian Seiguer and Matthew Turner; and included tax partners Mark Dundon and Bill Dong.

Apr 19

1 min

Kirkland & Ellis counseled Trinity Hunt Partners, a growth-oriented private equity firm, on the closing of its first Continuation Fund, raising capital to support the acquisitions of Argano and Improving, two premier technology services companies, from Trinity Hunt Partners V, L.P. The Continuation Fund closed on $618 million in commitments, which includes a substantial pool of capital for follow-on investments to support the continued growth of the companies. Read Trinity Hunt’s press release The Kirkland team was led by investment funds partners Matt Nadworny, Ian Jelsma and Damian Jacobs, with support from corporate partners Thomas Laughlin and Jack Shirley; and tax partner Stephen Butler; and included investment funds associates Randy Coffey and Steven Torgesen; corporate associate Hyrum Clarke; and tax partners Adam Nguyen and Ryan Phelps.

Oct 21

1 min

Kirkland & Ellis counseled Rhodium Enterprises, Inc., an industrial-scale digital asset technology company utilizing proprietary technologies to mine bitcoin, on its definitive agreement to merge with SilverSun Technologies, Inc. (NASDAQ:SSNT), a national provider of transformational business technology solutions and services. Rhodium is one of the largest bitcoin miners in the United States. Rhodium plans to list on NASDAQ via this merger with SilverSun. Read SilverSun’s press release The Kirkland team was led by corporate partners Thomas Laughlin and Jack Shirley; capital markets partners Matt Pacey and Anne Peetz; corporate associates Jessica Berkowitz and Garrett Engel; and capital markets associate Logan Weissler, with support from corporate partner Doug Bacon; tax partners David Wheat and Adam Arikat and associate Nicole Martin; and technology & IP transactions partner Jeff Norman; and executive compensation partners Stephen Jacobson and Frances Tompson and associate Lisa Cha.

Sep 30

1 min

The Florida Supreme Court on Thursday ruled that a university can control a research nonprofit's budget and approve its board members, saying a state law doesn't impair a memorandum of understanding between the two parties. Writing the Florida high court's opinion, Justice John D. Couriel said certain parts of the state's Excellence in Higher Education Act of 2018 don't unconstitutionally interfere with an MOU between Harbor Branch Oceanographic Institute Foundation Inc. and Florida Atlantic University. Under Article I, Section 10, the Florida constitution states that "no law impairing the obligation shall be passed." Harbor Branch argued the law impaired its rights under the MOU, specifically provisions of the agreement that the nonprofit's board of directors would include two FAU appointees and that board members would have the "sole discretion" to control distributions. "Specifically, the foundation says that the act's requirement that all foundation board members be approved by the FAU trustees unconstitutionally impairs a memorandum of understanding it negotiated with the university," Justice Couriel said. "The foundation makes the same argument about a rule adopted by the Board of Governors of the State University System of Florida, which, the foundation says, contravenes the same memorandum by reducing its control over its budget. After careful consideration, we conclude that neither of the contested provisions unconstitutionally interferes with the parties' agreement." In 2007, Harbor Branch entered into the agreement with FAU after financial trouble. Under the MOU, Harbor Branch became a direct-support organization affiliated with the university, and in exchange, the nonprofit is allowed to use FAU's property, facilities and personnel. In Florida, such organizations are organized "exclusively to receive, hold, invest, and administer property and to make expenditures to or for the benefit of a state university in Florida or for the benefit of a research and development park or research and development authority affiliated with a state university," the opinion said. FAU amended the agreement in 2009 to require its trustees to approve Harbor Branch's budget, and in 2017, the university proposed control of various nonprofit functions, such as accounting, auditing and legal operations. FAU also defunded Harbor Branch's CEO position and installed the university's vice president for research as the nonprofit's president, according to the opinion. Harbor Branch sued FAU in Florida's 19th Judicial Circuit Court in March 2017, seeking a declaratory judgment that the university couldn't impose its own budget proposal. While that case was pending, the Florida Legislature passed the Excellence in Higher Education Act. The act amended a part of the Florida statutes regulating direct-support organizations. Following passage of the act, FAU told Harbor Branch in May 2019 to submit board appointees for consideration, but the nonprofit refused, according to the opinion. One month later, FAU brought its own claim in Florida state court and sought a declaratory judgment that it was required to approve Harbor Branch board members under the act. After a four-day trial, the lower court found that the law impaired the MOU, and FAU appealed the case to Florida's Fourth District Court of Appeal in 2022. The appellate court affirmed the lower court ruling, and the case was appealed to the Florida Supreme Court, which held oral arguments in November 2024. Andy Bardos of GrayRobinson PA, representing FAU, told the Florida high court panel that there were no rights or obligations under the MOU to be impaired. "DSOs are trustees of vast resources administered on behalf of the state university system," Bardos said. Arguing on behalf of Harbor Branch, Stuart H. Singer of Boies Schiller Flexner LLP said: "The parties did not agree to be importing the law that changes in the future." In his opinion, Justice Couriel said direct-support organizations are highly regulated under Florida law. Regarding the approval of Harbor Branch's board members, Justice Couriel said because the MOU doesn't "speak to the approval of directors," Florida law didn't impair the obligations of the agreement. "Approval and appointment powers are distinct," Justice Couriel said. "Here, the MOU only speaks to FAU's appointment power; it says nothing about approval powers. The plain language of the MOU allows FAU to appoint two members to the board. It creates no other contractual rights regarding board appointments, composition, or membership." Additionally, Justice Couriel said the MOU doesn't "speak to budgets, only distributions." "The power to approve budgets is distinct from the discretion to distribute funds. And while a budget may have a downstream effect on distributions, that does not make them the same," Justice Couriel said. "Nor does FAU's approval authority over the foundation's budget take away the foundation's ability to apportion or give out endowment funds within the contours of that budget." Counsel for the parties did not immediately respond to emailed requests for comment on Thursday. FAU is represented by Andy Bardos, Ashley Lukis and Jack R. Reiter of GrayRobinson PA. Harbor Branch is represented by Stuart H. Singer, Sashi C. Bach and Jesse M. Panuccio of Boies Schiller Flexner LLP. The case is Florida Atlantic University Board of Trustees v. Harbor Branch Oceanographic Institute Foundation Inc., case number SC2023-1470, in the Supreme Court of Florida.

Dec 4

4 min

A Florida federal court invalidated a $187 million appraisal award that a group of homeowners associations won against their insurers over damage related to Hurricane Sally in 2020, finding that the group's chosen appraiser "never stated the 'amount of loss'" to the property. Granting summary judgment to the insurers, U.S. District Judge M. Casey Rodgers said while the appraiser for Portofino Master Homeowners Association Inc. and other entities submitted a "statement of loss" with the figure of $233 million, the statement by his "own admission" didn't mean the repairs cost that much. Portofino's appraiser, George Keys, testified it was a "starting point" for the appraisal panel's neutral umpire to reach the ultimate appraisal figure, the judge found in her Sept. 22 ruling. "Keys' appraisal team ultimately deferred to the umpire to determine the extent of damages produced by the storm — and therefore the 'amount of loss' to Portofino's property," Judge Rodgers wrote. She said that meant "in Portofino's words, 'Keys' appraisal team did not compute a final number' reflecting the 'amount of loss' as required by the appraisal provisions." The decision further preserved Portofino's coverage claims against insurers, ordering that the parties go back to form a new panel and conduct another appraisal. The prevailing insurers are Westchester Surplus Lines Insurance Co., Arch Specialty Insurance Co., Axis Surplus Insurance Co., Evanston Insurance Co., Aspen Specialty Insurance Co., Maxum Indemnity Co., Colony Insurance Co., Homeland Insurance Co. of New York, Independent Specialty Insurance Co., Interstate Fire & Casualty Co., James River Insurance Co., Lloyd's of London Consortium #9226 and Landmark American Insurance Co. According to court filings, the coverage dispute centers on insured property damage that the Portofino defendant entities said they suffered from Hurricane Sally in September 2020 across their complex of five condominium towers. With Portofino and the insurers disagreeing on the amount of coverage owed for the hurricane damage, they proceeded with an appraisal as outlined in the policies, under which the insurers and Portofino selected their own appraiser, who would then select a "competent and disinterested" umpire. If the two appraisers couldn't reach an agreed "amount of loss," the umpire would weigh in. After the panel rendered its $187 million award, Westchester Surplus Lines Insurance Co. and a slew of other insurers kicked off the coverage litigation in January 2023. On Sept. 22, Judge Rodgers additionally highlighted that the "statement of loss" at issue showed a figure of $233 million even though Portofino initially estimated its damage at $13 million. "For appraisal to be a meaningful alternative to litigation on 'amount of loss' issues, interests in finality weigh heavily in favor of letting sleeping dogs lie," she said, citing the 1995 state appeals case State Farm Fire & Casualty Co. v. Middleton . "But appraisals must — and there is no wiggle room here — still be conducted 'in accord with the agreed-on policy provisions,'" she added, pointing to the 2022 state appeals case NCI LLC v. Progressive Select Insurance Co. She further noted that a member of Keys' own team testified that no "thinking person" would use his "à la carte pricing" in the $233 million statement of loss as the total value of hurricane damage, and that it was instead a "price list." "Here, it is undisputed that Portofino's appraiser, by failing to state the 'amount of loss,' did not comply with the most basic — and fundamental — aspect of the process set forth in the appraisal provisions," Judge Rodgers ultimately determined. In reaching her conclusion that the appraisal award must be invalidated, the judge added that under the Eleventh Circuit's 2024 ruling in Mont Claire at Pelican Marsh Condominium. Association Inc. v. Empire Indemnity Insurance Co. , the court didn't have to reevaluate the appraisal or assess the accuracy of its calculations either. A representative of Landmark American Insurance Co. declined to comment. Representatives of the other parties did not immediately respond to a request for comment. Westchester Surplus Lines Insurance Co., Arch Specialty Insurance Co., Axis Surplus Insurance Co., Evanston Insurance Co., Aspen Specialty Insurance Co. and Maxum Indemnity Co. are represented by John David Dickenson and Alexandra J. Schultz of Cozen O'Connor. Landmark Insurance Co. is represented by Wayne D. Taylor and Elizabeth D. Salinas of Mozley Finlayson & Loggins LLP. Independent Specialty Insurance Co., Interstate Fire & Casualty Co. and Lloyd's of London #9226 are represented by David C. Bibb and Brian P. Henry of Rolfes Henry. Colony Insurance Co. is represented by Jack R. Reiter and Jordan S. Kosches of GrayRobinson PA. James River Insurance Co. is represented by Eric A. Hiller and Aaron Konstam of Kennedys CMK. Homeland Insurance Co. of New York is represented by Heidi Hudson Raschke, Madison E. Wahler and Amanda D. Proctor of Carlton Fields. The Portofino defendants are represented by Edward P. Fleming, Matthew A. Bush and Aaron T. McCurdy of McDonald Fleming LLP; Kurtis Jay Keefer of Goede DeBoest & Cross PLLC; and Charles F. Beall Jr. of Moore Hill & Westmoreland PA. The case is Westchester Surplus Lines Insurance Co. et al. v. Portofino Masters Homeowners Association Inc. et al., case number 3:23-cv-00453, in the U.S. District Court for the Northern District of Florida.

Sep 26

4 min