JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper Co. , 707 F.3d 853 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3413 & 12-2123
JPM ORGAN C HASE B ANK, N.A.,
successor in interest to
The First National Bank of Chicago,
Plaintiff-Appellee,
v.
A SIA P ULP & P APER C OMPANY, L TD.,
PT. INDAH K IAT P ULP & P APER T BK., and
PT. P ABRIK K ERTAS T JIWI K IMIA T BK.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 6240—James F. Holderman, Chief Judge.
A RGUED N OVEMBER 1, 2011—D ECIDED F EBRUARY 21, 2013
Before B AUER, F LAUM, and SYKES, Circuit Judges.
S YKES, Circuit Judge. These consolidated appeals arise
out of a complicated financing arrangement put in place
to underwrite Beloit Corporation’s construction of two
massive paper-making machines for a consortium of
2 Nos. 10-3413 & 12-2123
paper manufacturers in Southeast Asia. Simplified, the
basic facts are these: In 1996 Beloit agreed to build two
high-speed paper-making machines for Indonesian
paper companies PT. Indah Kiat Pulp & Paper Tbk. (“Indah
Kiat”) and PT Pabrik Kertas Tjiwi Kimia Tbk. (“Tjiwi
Kimia”), subsidiaries of Asia Pulp & Paper Company,
Ltd. (“Asia Pulp”), which is based in Singapore. (For
simplicity, we refer to the companies collectively as
“Asia Pulp” unless the context requires otherwise.) To
finance construction, Indah Kiat and Tjiwi Kimia
executed credit agreements and promissory notes in
favor of Beloit reflecting a principal indebtedness
of approximately $38 million, later increased to $43.8
million. Asia Pulp guaranteed the notes, and Beloit as-
signed them to JPMorgan Chase Bank, N.A. (“JPMorgan”)
in exchange for construction financing equal to the princi-
pal amount.
The machines were delivered in 1998 but did not run
at the speeds specified in the contracts; there were other
problems as well. In 2000 the parties entered into a settle-
ment resolving all claims pertaining to the machines but
specifically preserving Asia Pulp’s obligations under
the notes. Asia Pulp defaulted, and JPMorgan sued for
nonpayment. Asia Pulp asserted multiple defenses and
a counterclaim invoking various contract and fraud
theories. In a series of decisions, the district court held
that Asia Pulp’s warranty-based claims were foreclosed
by the settlement and its remaining claims lacked
factual and legal support. The court entered judgment
for JPMorgan for more than $53 million. Asia Pulp
appealed, raising a host of arguments regarding the
Nos. 10-3413 & 12-2123 3
viability of its defenses and counterclaim and also chal-
lenging the court’s award of interest and attorney’s fees.
Matters became a bit more complicated after we heard
argument. After the appeal was filed, JPMorgan issued
citations to discover assets on which to execute its large
judgment. Asia Pulp moved to stay discovery based on
an Indonesian injunction in an unrelated case, raising an
interesting international conflict-of-law question. The
district court denied the motion and ordered Asia Pulp
to comply with the asset-discovery citations. Asia
Pulp appealed this order as well.
We affirm the judgment. The district court correctly
held that the settlement waived Asia Pulp’s implied-
warranty defenses and counterclaim. The fraud defense
is mostly barred as well; to the extent it is not, Asia
Pulp’s evidence is wholly insufficient to survive sum-
mary judgment. Asia Pulp’s remaining defenses—that
the notes lacked consideration; that the notes were
issued for a “special purpose” and were not intended to
be repaid; and that JPMorgan is not a holder in due
course—are all meritless. As to damages, the court prop-
erly awarded interest at the contractual default rate
and attorney’s fees as provided in the notes. Finally, we
lack jurisdiction over Asia Pulp’s appeal of the asset-
discovery order. Postjudgment orders for the discovery
of assets are nonappealable interlocutory orders, and
the collateral-order doctrine does not apply.
4 Nos. 10-3413 & 12-2123
I. Background
The following account is from the summary-judgment
record, which we construe in the light most favorable
to Asia Pulp. On July 10, 1996, Beloit Corporation entered
into two contracts with Asia Pulp to build two high-
speed paper-making machines for its Indonesian sub-
sidiaries, Indah Kiat and Tjiwi Kimia. These enormous
machines—known as the PPM3 and the MPM11—are
several stories high and about 200 meters long, roughly the
length of two football fields. On May 12, 1997, Indah Kiat
and Tjiwi Kimia assumed all of Asia Pulp’s rights and
obligations under the contracts. Specifically, Indah Kiat
purchased the PPM3 machine and Tjiwi Kimia pur-
chased the MPM11 machine.
To finance the construction of these huge machines,
Indah Kiat and Tjiwi Kimia executed credit agreements
and promissory notes in favor of Beloit in the original
principal amount of $21,809,962.00 (the Indah Kiat
note) and $16,213,352.95 (the Tjiwi Kimia note). Asia
Pulp issued unconditional guarantees ensuring repay-
ment of the notes. These transactions closed on April 25,
1998. That same day, Beloit entered into a Note Pur-
chase Agreement with First National Bank of Chicago,
JPMorgan’s predecessor in interest,1 assigning the
notes to the bank in exchange for a line of credit in the
amount of $38,023,314.95 to serve as partial construc-
tion financing for the PPM3 and MPM11 machines.
1
JPMorgan eventually assumed First Chicago’s interest in
the notes. We refer only to JPMorgan throughout.
Nos. 10-3413 & 12-2123 5
On September 24, 1998, the parties increased the princi-
pal amount on the Indah Kiat and Tjiwi Kimia notes to
$26,701,678.00 and $17,123,488.95, respectively. Indah Kiat
and Tjiwi Kimia issued amended promissory notes to
Beloit reflecting the increased indebtedness, and Asia
Pulp again unconditionally guaranteed payment. On
September 30, 1998, Beloit and JPMorgan amended
their Note Purchase Agreement to cover the amended
notes, and JPMorgan increased Beloit’s line of credit
to $43,825,167.00.
The terms of the credit agreements and notes required
Indah Kiat and Tjiwi Kimia to make principal and interest
payments to JPMorgan in eight installments, the first
due on September 30, 1998. The remaining payments
were to be made semiannually until the notes were paid
in full. Indah Kiat and Tjiwi Kimia made their scheduled
payments beginning in September 1998 and continuing
through October 2000.
When the machines came online in 1998, however,
Asia Pulp employees identified several defects in their
operation. The main performance problem was insuf-
ficient speed. Asia Pulp catalogues other design and
mechanical defects in its brief, but the details are not
important to this appeal. 2 It is enough to note that the
2
In brief, the claimed defects were these: (1) inability to reach
the operational speed specified in the contracts; (2) incorrect
design and mechanical function in the wire section resulting
in low-quality paper; (3) incorrect mechanical function in the
(continued...)
6 Nos. 10-3413 & 12-2123
parties resolved all disputes regarding the defects by a
“Deed of Settlement” dated October 3, 2000. This agree-
ment expressly settled and released all claims relating to
the “Disputed Contracts”—that is, the contracts for
the construction, sale, and purchase of the PPM3 and
MPM11 machines. More specifically, the settlement
released Beloit, its successors, and related companies,
from “all claims . . . known or unknown . . . in connection
with or in any way pertaining to” the construction, instal-
lation, or operation of the PPM3 and MPM11 machines.
Importantly, however, the Deed of Settlement expressly
preserved the obligation of Indah Kiat, Tjiwi Kimia, and
Asia Pulp to pay on the notes. On this point, the agree-
ment stated as follows:
The APP Parties [Asia Pulp, Indah Kiat, and Tjiwi
Kimia] are not released from their obligations to pay
or repay any promissory notes issued to [Beloit Corpo-
ration] or other financing or other loans relating to
the PPM3 and MPM11 Contracts . . . . In addition,
the Beloit Entities’ rights with respect to such promis-
sory notes, financings and loans are not [a]ffected
by this Deed.
Despite this explicit reservation of rights and obligations
under the notes, Asia Pulp and its subsidiaries made
2
(...continued)
press section resulting in shutdowns and increased operational
expenses; (4) a flaw in the drying section making it difficult
to operate and limiting its speed; and (5) flaws in the sizer,
calendar, and reel sections resulting in increased operational
expenses.
Nos. 10-3413 & 12-2123 7
no further payment. Early in 2001 Asia Pulp issued
a “standstill” letter to all its creditors—including
JPMorgan—announcing a freeze of interest and principal
payments on all Asia Pulp debt, including the debt of
its subsidiaries Indah Kiat and Tjiwi Kimia. The
standstill letter had nothing to do with the PPM3 and
MPM11 machines; rather, the stated reason for the debt-
payment freeze was Asia Pulp’s corporate restructuring.
In September 2001 JPMorgan sent Asia Pulp a notice
of default. The bank had not been paid since
October 2000, and missing a principal or interest
payment automatically caused the notes to mature,
making all unpaid principal and accrued interest due
immediately. In addition, the notes and credit agree-
ments allowed for recovery of default interest and “fees
and disbursements of counsel.” Payment was not forth-
coming, so JPMorgan initiated this suit against Asia
Pulp, Indah Kiat, and Tjiwi Kimia to collect money due
on the notes.
A. The Litigation
The defendants vigorously contested JPMorgan’s suit,
asserting multiple affirmative defenses to liability and a
counterclaim premised on various contract and fraud
theories. Specifically, they alleged that: (1) Beloit breached
several implied warranties;3 (2) Beloit misrepresented its
3
The first, second, and fourth affirmative defenses alleged
breach of the implied warranty of merchantability, breach of
(continued...)
8 Nos. 10-3413 & 12-2123
design and construction expertise and fraudulently
represented that the notes were only a temporary
construction-financing measure; 4 (3) the notes were
issued as “special purpose” financing only and lacked
consideration;5 and (4) JPMorgan was not a holder in
due course.6 JPMorgan moved for summary judgment.
In three separate orders, the district court, Judge James F.
Holderman, granted summary judgment in favor of
JPMorgan and against the three defendants.
First, on October 14, 2009, the court granted summary
judgment in favor of JPMorgan and against Indah Kiat
and Tjiwi Kimia, rejecting their various defenses to
liability on the notes. The court held that the implied-
warranty defenses were barred by the Deed of Settle-
ment and the remaining defenses were factually and
legally deficient. On April 21, 2010, the court granted
summary judgment in favor of JPMorgan and against
Asia Pulp, rejecting the same affirmative defenses as
3
(...continued)
the implied warranty of fitness, and breach of an implied
warranty entitling Indah Kiat and Tjiwi Kimia to con-
sequential damages. The counterclaim was also based on
an alleged breach of implied warranty.
4
The fraud allegations are contained in Asia Pulp’s third
affirmative defense.
5
These allegations are contained in Asia Pulp’s fifth and
sixth affirmative defenses.
6
This claim is contained in Asia Pulp’s seventh affirmative
defense.
Nos. 10-3413 & 12-2123 9
well as the counterclaim. In this order the court also
determined damages (including contractual interest),
but reserved consideration of attorney’s fees. On Septem-
ber 13, 2010, the district court modified the damages
award and added attorney’s fees as provided in the
notes. This order entered final judgment for JPMorgan
as follows:
(1) judgment against Indah Kiat in the amount of
$31,904,510.92 (principal and interest on the Indah
Kiat note) plus $251,820.63 in attorney’s fees and
costs, for a total of $32,156,331.55;
(2) judgment against Tjiwi Kimia in the amount of
$21,088,185.59 (principal and interest on the Tjiwi
Kimia note) plus $251,820.63 in attorney’s fees and
costs, for a total of $21,340,006.22; and
(3) judgment against Asia Pulp for the combined
total of $53,496,337.77.
(Forgive the exquisite detail; in light of the issues raised
on appeal, we cannot omit it.) Asia Pulp filed a timely
notice of appeal designating all three merits orders
(dated October 14, 2009; April 21, 2010; and September 13,
2010). This is Appeal No. 10-3413.
B. Postjudgment Collection Proceedings
Having won a very large judgment, JPMorgan sought
to protect its enforcement options while the appeal
was pending. On October 19, 2010, JPMorgan issued
citations to discover assets on which to execute its judg-
10 Nos. 10-3413 & 12-2123
ment. Asia Pulp moved to stay enforcement of the cita-
tions, claiming that a “Provisional Injunction” issued by
an Indonesian court in 2008 in an unrelated case pro-
hibited it from complying with postjudgment collection
proceedings. Judge Holderman referred the motion to
Magistrate Judge Geraldine Soat Brown, and on Novem-
ber 16, 2011, she rejected Asia Pulp’s argument and
ordered it to comply with the asset-discovery cita-
tions. Asia Pulp moved for reconsideration, but
Judge Brown denied the motion. Asia Pulp then filed
objections with the district court pursuant to Rule 72(a)
of the Federal Rules of Civil Procedure. On January 10,
2012, Judge Holderman set a briefing schedule.
Eight days later, however, Asia Pulp filed a notice of
appeal purporting to appeal Magistrate Judge Brown’s
ruling. This appeal was docketed as Appeal No. 12-1136.
We questioned appellate jurisdiction and issued a juris-
dictional order. In the meantime Judge Holderman
entered an order overruling Asia Pulp’s objections, con-
firming the soundness of Magistrate Judge Brown’s
conclusions, and ordering Asia Pulp to comply with the
asset-discovery citations. 7 The court held that Asia Pulp
7
Although the “filing of a timely notice of appeal confers
jurisdiction over the matter on the court of appeals and divests
the district court of its control,” Henry v. Farmer City State
Bank, 808 F.2d 1228, 1240 (7th Cir. 1986), that “rule does not
operate . . . where there is a purported appeal from a non-
appealable order,” United States v. Bastanipour, 697 F.2d 170, 173
(7th Cir. 1982). Magistrate Judge Brown’s ruling was a
(continued...)
Nos. 10-3413 & 12-2123 11
had not established that it would be subject to sanc-
tions under the Indonesian injunction if forced to
comply with the asset-discovery citations. The court
also held that principles of international comity fa-
vored enforcement of the citations. After unsuccessfully
moving for reconsideration, Asia Pulp filed a notice of
appeal from the district court’s postjudgment orders.
This is Appeal No. 12-2123.
Because the magistrate judge’s ruling was not a final,
appealable order, we dismissed Appeal No. 12-1136
for lack of appellate jurisdiction. We consolidated the
remaining appeals and ordered the parties to specif-
ically address the question of appellate jurisdiction in
Appeal No. 12-2123, Asia Pulp’s appeal from Judge
Holderman’s order denying the motion to stay and com-
pelling compliance with the asset-discovery citations.
The consolidated appeals are now ready for decision.
II. Discussion
The case is before the court following the grant of
summary judgment in favor of JPMorgan, so our review
is de novo. Righi v. SMC Corp., 632 F.3d 404, 408 (7th Cir.
2011). The district court held that Asia Pulp is liable on
the notes and that its counterclaim and affirmative de-
7
(...continued)
nonappealable order, so the district court’s jurisdiction over
the supplementary proceedings was intact notwithstanding
Asia Pulp’s attempted appeal from her order.
12 Nos. 10-3413 & 12-2123
fenses were either barred by the Deed of Settlement or
lacked factual and legal support. The court entered judg-
ment for the unpaid principal amount, plus interest at
the contractual default rate and attorney’s fees as pro-
vided in the credit agreements and notes.
On appeal Asia Pulp presses its counterclaim and
affirmative defenses, and also challenges the award of
interest at the contractual default rate and attorney’s
fees. The basic facts are uncontroverted; the appeal turns
on legal conclusions regarding the contract defenses
and counterclaim, and whether Asia Pulp’s fraud
evidence is sufficient to get to a jury. In reviewing the
district court’s grant of summary judgment, we draw all
reasonable inferences in favor of the nonmoving party,
here Asia Pulp. Id. Summary judgment is appropriate if
there are no material factual disputes for trial and
JPMorgan is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.
R. C IV. P. 56(c)). To establish a material factual dispute,
Asia Pulp must present evidence that would permit a
reasonable jury to return a verdict in its favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Before turning to the merits, however, we must clear
some procedural underbrush.
A. The Scope of the Appeal
As a threshold matter, JPMorgan argues that certain
language in the first notice of appeal limits our jurisdic-
tion to the claims involving Indah Kiat only. Rule 3(c)(1)(B)
of the Federal Rules of Appellate Procedure requires
Nos. 10-3413 & 12-2123 13
that a notice of appeal “designate the judgment, order,
or part thereof being appealed.” Although the require-
ments of Rule 3 are “jurisdictional in nature, and their
satisfaction is a prerequisite to appellate review,” we
generally construe the notice requirements liberally.
Smith v. Barry, 502 U.S. 244, 248 (1992) (citing Torres
v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988)).
Asia Pulp’s first notice of appeal designates three
orders as the subject of the appeal:
(1) [the] October 14, 2009 Order granting JP Morgan’s
motion for summary judgment against defendants
[Indah Kiat] and [Tjiwi Kimia]; (2) [the] April 21, 2010
Order granting JP Morgan’s motion for summary
judgment against defendant [Asia Pulp]; and (3) [the]
September 13, 2010 Order[] amending the April 21,
2010 judgment and awarding damages in the total
amount of $32,156,331.55.
Note the language of subpart (3) of the notice, which
identifies the September 13, 2010 order but goes on
to specifically mention the award of damages in the
amount of $32,156,331.55, which corresponds to the
award against Indah Kiat only. As we have earlier ex-
plained, the September 13, 2010 order modified the dam-
ages determination contained in the court’s April 21
order, awarded attorney’s fees, and entered final judg-
ment as follows: judgment against Indah Kiat in
the total amount of $32,156,331.55; judgment against
Tjiwi Kimia in the total amount of $21,340,006.22; and
judgment against Asia Pulp for the combined total
of $53,496,337.77.
14 Nos. 10-3413 & 12-2123
JPMorgan argues that by specifying the amount of
damages awarded against Indah Kiat only, the notice
of appeal limits our review to that part of the judgment.
We disagree. The notice designates all three orders by
which the district court addressed the merits of the case
and reached final judgment, culminating in the court’s
order on September 13, 2010, which encompassed the
judgment against all three defendants. Read as a whole,
we think the notice “sufficiently demonstrate[s] [the]
intention to appeal all orders previously issued by the
district court.” Badger Pharmacal, Inc. v. Colgate-Palmolive
Co., 1 F.3d 621, 626 (7th Cir. 1993). The requirements of
Rule 3 are satisfied when the matters appealed can be
readily inferred from the text of the notice and the
appellee has not been misled. See Ortiz v. John O. Butler
Co., 94 F.3d 1121, 1125 (7th Cir. 1996); see also United
States v. Michelle’s Lounge, 39 F.3d 684, 691-92 (7th Cir.
1994) (notice of appeal identifying orders “otherwise
denying any adversary hearing” satisfies Rule 3 even
though it does not more specifically identify the order
appealed from).
Considered in context, the specific mention of only a
subset of the total damages—the amount awarded against
Indah Kiat—is best explained as a clerical error, not an
attempt to limit the scope of the appeal. The notice
listed all three orders that together comprise the district
court’s disposition of JPMorgan’s claims against the
three defendants in toto. Asia Pulp’s opening brief, which
addresses the liability of all three defendants, confirms
that no limitation was intended, and JPMorgan does not
claim to have been misled. Accordingly, all three or-
Nos. 10-3413 & 12-2123 15
ders—including the September 13, 2010 order in its
entirety—are properly before the court.
B. Summary Judgment
Asia Pulp’s counterclaim and three affirmative
defenses are premised on breach-of-warranty theories
relating to the PPM3 and MPM11 contracts. The district
court held that these claims are barred by the Deed of
Settlement. A fourth affirmative defense alleges that
Beloit made certain material misrepresentations to
induce Indah Kiat and Tjiwi Kimia to enter into the
credit agreements and issue the notes. The district
court held that the fraudulent inducement defense
is not barred by the Deed of Settlement but lacks
factual support on the merits. The court also rejected
Asia Pulp’s remaining contract defenses and entered
judgment for the balance due on the notes, plus con-
tractual interest and attorney’s fees. Asia Pulp challenges
every one of these rulings.
1. The Deed of Settlement
The Deed of Settlement comprehensively releases
Beloit, its successors, and related companies from all
claims arising from or relating to the “Disputed Con-
tracts”—that is, the contracts for the construction, sale,
and installation of the PPM3 and MPM11 machines.
Importantly, however, the Deed of Settlement specifically
preserves the obligation of Asia Pulp and its subsidiaries
to pay on the notes. As Beloit’s assignee and successor
16 Nos. 10-3413 & 12-2123
on the notes, JPMorgan may assert Beloit’s rights under
the notes and the Deed of Settlement. See Plumb v. Fluid
Pump Serv., Inc., 124 F.3d 849, 864 (7th Cir. 1997)
(“[E]lementary contract law provides that upon valid
and unqualified assignment the assignee stands in the
shoes of the assignor and assumes the same rights, title
and interest possessed by the assignor.” (citation omitted)).
Clause 10 of the Deed of Settlement contains the provi-
sions relevant here. First, Clause 10(A) contains Beloit’s
release of rights:
Each of the Beloit Entities and Harnischfeger
hereby releases the [Asia Pulp] Parties . . . from all
claims and waives all rights against them, whether
such claims or rights are known or unknown, accrued
or to accrue, in connection with or in any way per-
taining to the Disputed Contracts, except as set forth
in Clause 10(C).
Clause 10(B) contains Asia Pulp’s release of rights:
Each of the [Asia Pulp] Parties hereby releases the
Beloit Entities and Harnischfeger . . . from all claims
and waives all rights against them, whether such
claims or rights are known or unknown, accrued or
to accrue, in connection with or in any way per-
taining to the Disputed Contracts. [Asia Pulp] agrees
to indemnify the Beloit Entities and Harnischfeger
against any claims arising out of and in connection
with the Disputed Contracts by the [Asia Pulp] Parties.
Finally, Clause 10(C) unequivocally states that the settle-
ment does not affect Beloit’s right to enforce the notes
Nos. 10-3413 & 12-2123 17
and does not release the obligation of Asia Pulp and its
subsidiaries to pay on the notes:
The [Asia Pulp] Parties are not released from their
obligations to pay or repay any promissory notes
issued to [Beloit Corporation] or other financing or
other loans relating to the PPM3 and MPM11
Contracts . . . . In addition, the Beloit Entities’ rights
with respect to such promissory notes, financings
and loans are not [a]ffected by this Deed.
Our interpretation of the Deed of Settlement is gov-
erned by principles of contract law—here, the contract
law of Illinois. Capocy v. Kirtadze, 183 F.3d 629, 632 (7th
Cir. 1999). The scope and effect of the release depend on
the intent of the parties, but we “determine this intent
‘from the language used and the circumstances of the
transaction.’ ” Id. (quoting Carlile v. Snap-On Tools, 648
N.E.2d 317, 321 (Ill. App. Ct. 1995)). Absent ambiguity,
the question presented is one of law. Id. (citing Gavery
v. McMahon & Illiott, 670 N.E.2d 822, 824 (Ill. App. Ct.
1996)). There is no ambiguity here.
Clause 10(C) expressly excludes the promissory notes
from the release, so the obligation to pay survives the
settlement and JPMorgan retains the right to enforce that
obligation. In contrast, in Clause 10(B) Asia Pulp and its
subsidiaries release all claims and waive all rights
against Beloit and its successors without qualification.
The release language is comprehensive, encompassing
“all claims . . . known or unknown . . . in connection with
or in any way pertaining to the Disputed Contracts.” (Em-
phases added.) This language covers the implied-
18 Nos. 10-3413 & 12-2123
warranty defenses and counterclaim asserted here.
These claims are based on design and construction defects
well known to the parties on October 3, 2000, when the
Deed of Settlement was executed. Indeed, the whole
point of the settlement was to resolve all claims per-
taining to the myriad performance problems of the PPM3
and MPM11 machines.
According to the uncontroverted evidence (much of it
from Asia Pulp’s own employees), the machines had
serious problems immediately following their installa-
tion in 1998—two years before the parties signed the
Deed of Settlement. In 1997 Tjiwi Kimia hired away
Beloit’s project manager Robert Prutzman, whose job
was to oversee the installation and operation of the ma-
chines. In a sworn declaration, Prutzman stated that he
was never able to get the PPM3 and MPM11 to work at
their target speeds. Also in the record is a sworn declara-
tion from Aarno Tuomenoja, who was apparently an
engineer or supervisor in charge of technology at Asia
Pulp during the relevant time period. He recounted
that after the machines were received, “field level em-
ployees . . . reported that the machines would not run
at the speeds required in the contract.” He itemized
other defects as well. As such, Asia Pulp was well aware
of possible warranty claims long before October 2000
when the Deed of Settlement was signed. The implied-
warranty affirmative defenses and counterclaim are
plainly barred by the terms of the settlement.
The same is true of the fraudulent-inducement defense,
at least to the extent that this defense is premised on
Nos. 10-3413 & 12-2123 19
alleged misrepresentations about the PPM3 and MPM11
machines. Asia Pulp complains of two distinct misrepre-
sentations. First, it contends that Beloit falsely rep-
resented that it had the experience and skill necessary
to design and build the PPM3 and MPM11 to the
desired specifications. Second, it claims that Beloit
falsely represented that the promissory notes would be
temporary or “interim” financing only, inducing Asia
Pulp and its subsidiaries to believe that the notes
would not have to be repaid.
The first of these misrepresentations relates directly
to the performance problems of the PPM3 and MPM11
machines. As factual support for this claim, Asia Pulp
relies primarily on Prutzman’s declaration that Beloit
had never designed or manufactured machines to the
specifications and quality required by the PPM3 and
MPM11 contracts. But Prutzman began working for
Tjiwi Kimia in 1997, so Asia Pulp was aware of Beloit’s
alleged misrepresentation on this score three years before
the Deed of Settlement was executed. To the extent
that the fraud defense is based on misrepresentations
about Beloit’s design and construction experience, it
falls squarely within the release in the Deed of Settle-
ment and is therefore barred.
The misrepresentation about the nature of the credit
transaction is another matter, however. This aspect of
the fraudulent-inducement defense does not pertain to
the “Disputed Contracts” per se; it pertains to the associ-
ated construction financing. We do not need to decide
whether the release language in the Deed of Settlement
20 Nos. 10-3413 & 12-2123
is broad enough to bar this part of the claim; we agree
with the district court that it fails on the merits. To
survive summary judgment, Asia Pulp needed clear
and convincing evidence on the following elements:
(1) Beloit made a false statement of material fact;
(2) knowing it was false or in reckless disregard of its
truth or falsity; (3) with intent to induce Indah Kiat and
Tjiwi Kimia to enter into the credit agreement and issue
the notes, and to induce Asia Pulp to guarantee repay-
ment; (4) Indah Kiat, Tjiwi Kimia, and Asia Pulp reason-
ably believed the false statement to be true and acted
in justifiable reliance on it; and (5) damages as a result
of their reliance on the misrepresentation. See Kapelanski
v. Johnson, 390 F.3d 525, 530-31 (7th Cir. 2004) (applying
Illinois law); LaScola v. U.S. Sprint Commc’ns, 946 F.2d
559, 569 (7th Cir. 1991) (applying the clear-and-convincing
evidentiary standard in affirming a summary judgment
dismissing a fraud claim). Asia Pulp’s evidence falls
far short on several elements of the claim; there are
legal barriers as well.
To repeat, Asia Pulp asserts that Beloit falsely repre-
sented that the notes were temporary or “interim” financ-
ing and that it would secure permanent financing else-
where, and that this representation led Asia Pulp and
its subsidiaries to believe that they would not have to
repay the notes. There are several problems with this
claim. First, it is a claim of promissory fraud; that is, Asia
Pulp contends that Beloit made a promise—that it would
secure permanent financing elsewhere—with no present
intention of fulfilling it. But Illinois does not recognize
a cause of action for promissory fraud. Indep. Trust Corp. v.
Nos. 10-3413 & 12-2123 21
Fid. Nat’l Title Ins. Co. of N.Y., 577 F. Supp. 2d 1023, 1038-
39 (N.D. Ill. 2008); see also BPI Energy Holdings, Inc. v. IEC
(Montgomery), LLC, 664 F.3d 131, 136 (7th Cir. 2011).
Although an exception exists for certain fraudulent
schemes, it only applies if the misrepresentation is embed-
ded in a larger pattern of deception or the deceit is par-
ticularly egregious. See Desnick v. Am. Broad. Cos., 44 F.3d
1345, 1354 (7th Cir. 1995). There is no evidence of that
here. Asia Pulp alleges a garden-variety promissory fraud.
Second, the evidence does not begin to show, let alone
clearly and convincingly, that Beloit actually made the
alleged false representation knowing it to be false. To
the extent that the representation about permanent fi-
nancing was actually made (the evidence of this is
skeletal and lacking in specifics), there is no evidence
that it was false when made or that Beloit knew it
was false. Tuomenoja merely asserts that Beloit “had
no intention of acting on its representation.” Asia Pulp
has no evidence to back up this assertion.
Proof of justifiable reliance is also lacking. Asia Pulp
claims that it reasonably believed, based on Beloit’s
misrepresentation about permanent financing, that it
would not have to repay the notes. No record evidence
supports this contention. To the contrary, Indah Kiat
and Tjiwi Kimia paid on the notes for two years before
defaulting. Asia Pulp has not explained why these pay-
ments were made if indeed it believed it did not have
to repay the notes. Moreover, Asia Pulp and its subsidiar-
ies expressly acknowledged their continued liability on
the notes in the Deed of Settlement, which specifically
22 Nos. 10-3413 & 12-2123
preserved their obligation to pay. In short, whether or
not it was barred by the Deed of Settlement, Asia Pulp’s
fraudulent-inducement defense is legally and factually
unsupported.
2. Remaining Affirmative Defenses
In another twist on the same theme, Asia Pulp insists
that the notes are unenforceable because they were
issued for a “special purpose”—that is, as temporary or
“interim” financing—and were never intended to be
repaid. 8 As Judge Holderman aptly put it, this argu-
ment “defies common sense.” Asia Pulp has not ex-
plained how this putative “special purpose” extinguishes
its obligation to repay the notes. The terms of the credit
agreements and notes plainly specify a repayment
schedule and bind Indah Kiat and Tjiwi Kimia to pay
the notes in full. Asia Pulp unconditionally guaranteed
repayment. No bank would extend $40 million in credit
8
The only factual support for this so-called “special purpose”
defense is a statement in the Tuomenoja declaration that “th[e]
promissory note was meant to be a temporary measure.” The
district court excluded this statement under the parol-evidence
rule. This evidentiary ruling was sound. Main Bank of Chi.
v. Baker, 427 N.E.2d 94, 100 (Ill. 1981) (“[A]lthough article 3 of
the [Uniform Commercial] Code allows an instrument
to be modified by a separate writing executed contemporane-
ously, . . . it otherwise follows the parol evidence rule that
prior or collateral oral agreements are inadmissible to contra-
dict the express terms of a written instrument.”).
Nos. 10-3413 & 12-2123 23
in exchange for illusory promissory notes. And as we
have noted, Indah Kiat and Tjiwi Kimia made payments
on the notes from September 1998 to October 2000, and
the Deed of Settlement, signed on October 3, 2000, specifi-
cally preserved their obligation to pay. Nothing further
need be said on this point.
Asia Pulp also argues that the notes lacked considera-
tion. Consideration is “a bargained-for exchange,
whereby the promisor . . . receives some benefit, or the
promisee . . . suffers detriment.” Vassilkovska v. Woodfield
Nissan, Inc., 830 N.E.2d 619, 624 (Ill. App. Ct. 2005). Under
the relevant section of Illinois’s version of Article 3 of
the Uniform Commercial Code, “any consideration suffi-
cient to support a simple contract” satisfies the consider-
ation requirement. 810 ILL. C OMP. S TAT. 5/3-303(b). A
validly executed negotiable instrument is presumed to
be supported by consideration. Pedott v. Dorman, 548
N.E.2d 541, 546 (Ill. App. Ct. 1989). A clause stating that
an instrument was given “for value received” ordinarily
is sufficient evidence of consideration. Id.The notes state that they were issued “for value re-
ceived,” and Asia Pulp does not dispute that they were
validly executed. Consideration is therefore presumed,
and although the presumption may be rebutted, “the
evidence offered in rebuttal must be of a very clear and
cogent nature.” Id. Asia Pulp offers no evidence in
rebuttal, much less “clear and cogent” evidence. Instead,
it advances an argument from the existence of the under-
lying construction contracts; that is, Asia Pulp argues
that its promise to repay the notes brought no new rights
24 Nos. 10-3413 & 12-2123
in return beyond those already contained in the PPM3
and MPM11 contracts. We fail to see—and Asia Pulp
does not explain—how this operates to defeat the pre-
sumption of consideration. The notes served as partial
construction financing, necessary for the completion
and delivery of machines, and were thus an integral part
of the larger transaction. The lack-of-consideration
defense is meritless.
Finally, Asia Pulp argues that JPMorgan is not a holder
in due course of the notes. But this issue comes into
play only if Asia Pulp has an affirmative defense that
survives summary judgment. See Bank of N.C., N. A. v.
Rock Island Bank, 630 F.2d 1243, 1246 (7th Cir. 1980). In
other words, assuming it has the status of a holder in
due course, JPMorgan would have a trump card to play
against an otherwise valid defense to liability on the
notes. See id. Because Asia Pulp has no valid affirmative
defense, the question is irrelevant.
C. Damages
Asia Pulp challenges the damages award on two
grounds: (1) the district court should not have calculated
interest using the increased default rate specified in the
notes; and (2) the court should not have awarded attor-
ney’s fees.9 We find no error on either point.
9
Asia Pulp also claims that the damages award should have
been “mitigated” based on Beloit’s fraud. This argument has
no factual or legal support.
Nos. 10-3413 & 12-2123 25
Under the terms of the credit agreements and notes, a
slightly higher interest rate applies in the case of a de-
fault. For the Indah Kiat note, the rate increases from
2.17% to 3.125%. For the Tjiwi Kimia note, the rate in-
creases from 2.29% to 3.125%. Asia Pulp claims that
these provisions are unenforceable penalty clauses. The
district court rejected this argument and calculated
interest on the principal balance due on the notes using
the 3.125% rate. Whether the rate increase is an unen-
forceable penalty clause is a question of law, so our
review is de novo. Checkers Eight Ltd. P’ship v. Hawkins,
241 F.3d 558, 562 (7th Cir. 2001).
A contractual provision is an unenforceable penalty
clause when its sole purpose “is to secure performance
of the contract.” Id. Although doubtful cases are
resolved “in favor of classification as a penalty,” Lake River
Corp. v. Carborundum Co., 769 F.2d 1284, 1290 (7th Cir.
1985), Illinois courts routinely uphold reasonable
postdefault increases in interest rates as valid liquidated-
damages provisions, see, e.g., Baker v. Loves Park Sav. & Loan
Ass’n, 333 N.E.2d 1, 5-6 (Ill. 1975) (upholding a clause
providing for a 1% increase in interest rate upon de-
fault). Unlike fixed fees for a breach of contract bearing
no relationship to actual damages, here the small
postdefault rate increase—less than 1%—was entirely
reasonable in light of anticipated losses associated with
default, especially because actual damages from a breach
would have been difficult to measure at the time of con-
tract formation. See Checkers Eight, 241 F.3d at 562.
We agree with the district court that the post-
default interest-rate increase is a valid and enforceable
liquidated-damages clause.
26 Nos. 10-3413 & 12-2123
Asia Pulp’s challenge to the award of attorney’s fees
fares no better. Illinois requires that contractual fee-
shifting provisions be clear and specific. See, e.g., Estate of
Downs v. Webster, 716 N.E.2d 1256, 1260 (Ill. App. Ct. 1999)
(“When the language does not specifically state that
‘attorney fees’ are recoverable, courts will not give the
language an expanded meaning.”); Qazi v. Ismail, 364
N.E.2d 595, 596-97 (Ill. App. Ct. 1977) (stating that “specific
language” is required for an enforceable fee-shifting
provision). Here, the credit agreements specify that “[t]he
Borrower agrees to pay and save the Lender harmless
against liability for the payment of . . . the fees and disburse-
ments of counsel to the Lender.” (Emphasis added.) Asia
Pulp insists that the phrase “fees and disbursements of
counsel to the Lender” is not specific enough. We fail to
see the ambiguity. The cases do not require that a contrac-
tual fee-shifting provision must use the magic words
“attorney’s fees” to be enforceable. “Fees and disburse-
ments of counsel” is synonymous with “attorney’s fees”
and is oft-used boilerplate for contract provisions
allowing recovery of attorney’s fees and costs. See, e.g.,
Fallon Elec. Co., Inc. v. Cincinnati Ins. Co., 121 F.3d 125, 126,
129 (3d Cir. 1997); Day v. Gen. Elec. Credit Corp., 546 A.2d
315, 320-21 (Conn. App. Ct. 1988); Fry v. Toth, 166 N.W.2d
235, 237, 239 (Wis. 1969). The district court properly
awarded JPMorgan’s attorney’s fees and costs.
D. Postjudgment Asset-Discovery Order
As we have explained, the parties have done battle in
extensive supplementary proceedings while this appeal
Nos. 10-3413 & 12-2123 27
has been pending. Presently before the court is Asia Pulp’s
appeal from the district court’s order declining to stay
enforcement of JPMorgan’s asset-discovery citations. As
to that order, we now conclude that we lack appellate
jurisdiction. Judge Holderman’s order denying a stay
and compelling compliance with the asset-discovery
citations is not a final, appealable order under 28 U.S.C.
§ 1291.
We “treat [a] postjudgment proceeding like a freestand-
ing lawsuit and look for the final decision in that pro-
ceeding to determine the scope of” appellate review.
Solis v. Current Dev. Corp., 557 F.3d 772, 775 (7th Cir.
2009). Thus, “an order that addresses all the issues
raised in the motion that sparked the postjudgment
proceedings is treated as final for purposes of section
1291.” Id. at 776. In other words, the question is whether
the district court’s order completely disposes of the
postjudgment proceedings, not a single issue within those
proceedings. A contrary approach would permit piece-
meal appeals of interlocutory orders in ongoing
postjudgment proceedings. Id. at 775-76.
We have previously held that orders granting
postjudgment discovery are not final, appealable orders.
See Cent. States, Se. & Sw. Areas Pension Fund v. Express
Freight Lines, Inc., 971 F.2d 5, 6 (7th Cir. 1992); In re Joint E.
& S. Dists. Asbestos Litig., 22 F.3d 755, 760 (7th Cir. 1994). In
Asbestos Litigation we held that “[t]he denial of a motion
to quash the citation proceeding simply lets the pro-
28 Nos. 10-3413 & 12-2123
ceeding continue and therefore is not final or appealable.” 1 0
22 F.3d at 760. The district court’s denial of Asia Pulp’s
motion to stay is no different than the denial of the
motion to quash in Asbestos Litigation. It is not the end of
the postjudgment proceedings—to the contrary, the
denial of a stay simply lets those proceedings continue.
The district court’s order compelling compliance with
the asset-discovery citations was not a final, appealable
order.
In the alternative, Asia Pulp argues that the district
court’s order qualifies for immediate review under the
collateral-order doctrine, which confers finality on an
otherwise interlocutory order if the order conclusively
resolves an important question completely separate from
the merits of the action and the question is effectively
unreviewable on appeal from a final judgment. Mohawk
Indus., Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
10
We have speculated that there may be room for exceptions to
the rule that orders granting postjudgment discovery are
nonfinal. In re Joint E. & S. Dists. Asbestos Litig., 22 F.3d 755, 760
(7th Cir. 1994) (citing Resolution Trust Corp. v. Ruggiero, 994
F.2d 1221, 1224 (7th Cir. 1993)). As in Asbestos Litigation, how-
ever, this case gives us no reason to explore this possibility. The
“circumstances surrounding the ruling of the district court
[made] it clear that the court did not regard its ruling as a
final disposition of the matter before it.” Id. at 761. The same
is true here. The district court explained that the denial of
the motion to stay the citation proceeding “likely will not
be this court’s last order in the postjudgment proceeding.”
Nos. 10-3413 & 12-2123 29
“Collateral-order review is based on a practical construc-
tion of 28 U.S.C. § 1291; it is not an exception to the final-
judgment rule.” Ott v. City of Milwaukee, 682 F.3d 552, 554
(7th Cir. 2012) (internal quotation marks omitted). In
making the collateral-order determination, we “do not
engage in an ‘individualized jurisdictional inquiry.’ ”
Mohawk Indus., 130 S. Ct. at 605 (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 473 (1978)). “Rather, our
focus is on ‘the entire category to which a claim be-
longs,’” id. (quoting Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 868 (1992)), and whether “the class of
claims, taken as a whole, can be adequately vindicated
by other means,” id.Asia Pulp’s motion to stay enforcement of the asset-
discovery citations conclusively resolved an important
question—whether Asia Pulp is entitled to rely on the
Indonesian injunction to resist discovery of its assets—
but this question is coextensive with, not distinct from,
the merits of the postjudgment proceedings. The pur-
pose of the postjudgment proceedings is to discover
assets that might be available to satisfy the judgment,
and, following discovery, to execute on those assets.
Bank of Am., N.A. v. Veluchamy, 643 F.3d 185, 188 (7th
Cir. 2011). Asia Pulp claims that the terms of the Indone-
sian injunction prevent it from complying with the asset-
discovery citations. This claim goes to the heart of the
supplementary proceedings.
Moreover, under Mohawk Industries, Asia Pulp cannot
establish that the issue is effectively unreviewable if a
collateral review is not allowed. In Mohawk Industries the
30 Nos. 10-3413 & 12-2123
Supreme Court concluded that collateral-order appeals
were not permitted from pretrial discovery orders
adverse to the attorney-client privilege. 130 S. Ct. at 606.
The Court held that postjudgment appeal was sufficient
to protect the interests secured by the privilege. Id. The
Court emphasized that piecemeal appeals “undermine[]
efficient judicial administration and encroach[] upon
the prerogatives of district court judges.” Id. at 605 (inter-
nal quotation marks omitted). The Court thus refused
to expand the scope of collateral-order review to include
claims of privilege, noting that several options exist for
cases raising particularly acute concerns: interlocutory
appeal by certification under § 1292(b), mandamus, and
appeal from a contempt citation. Id. at 607-08. We have
recently observed that the “overriding lesson from
Mohawk Industries is that the class of collaterally ap-
pealable orders must remain narrow and selective in its
membership.” Ott, 682 F.3d at 555 (declining to extend
collateral-order review to the denial of a motion to
quash a nonparty subpoena for pretrial discovery).
If the privilege claim in Mohawk Industries failed to
satisfy the requirements of the collateral-order doctrine,
it’s hard to see how the present claim could qualify. Asia
Pulp insists that without collateral review, it may be
subject to monetary sanctions for violating the Indonesian
injunction if forced to comply with asset discovery here.
We note for starters that the district court found that
Asia Pulp failed to establish this as a matter of fact; on
the record before the court, the status and effect of the
injunction was unclear. Even assuming the possibility of
sanctions, Asia Pulp has not demonstrated that the
Nos. 10-3413 & 12-2123 31
conflict-of-law question is effectively unreviewable if
appeal is postponed until supplementary proceedings
have concluded. “That a ruling ‘may burden litigants in
ways that are only imperfectly reparable by appellate
reversal of a final district court judgment . . . has never
sufficed.’ ” Mohawk Indus., 130 S. Ct. at 605 (quoting Digital
Equip. Corp., 511 U.S. at 872). We note as well that the
procedural options that the Supreme Court found to be
adequate alternatives for review of the privilege claim in
Mohawk Industries—interlocutory appeal by certification
under § 1292, mandamus, and appeal from a contempt
citation—are also available here. Accordingly, we hold
that the collateral-order doctrine does not extend to the
district court’s order denying Asia Pulp’s motion to
stay enforcement of the asset-discovery citations.
For all the foregoing reasons, we A FFIRM the district
court’s order entering summary judgment in favor of
JPMorgan in its entirety. The appeal from the order
denying Asia Pulp’s motion to stay enforcement of
JPMorgan’s asset-discovery citations is D ISMISSED for
lack of jurisdiction.
2-21-13