IPI tries for another TRO vs. CCC

Casino operator Imperial Pacific International (CNMI) LLC has filed another request for a temporary restraining order to stay the Commonwealth Casino Commission’s revocation proceedings; this time claiming their due process rights will be violated if not granted one.

It was only last Feb. 27 when U.S. District Court for the NMI judge David Carter denied IPI’s motion for a TRO against CCC, essentially allowing the commission to move forward with proceedings to revoke IPI’s casino gaming license.

Next week, April 2, the CCC is set to deliberate and vote on whether to revoke IPI’s casino gaming license or not.

Because of this, IPI, through lawyers Stephen Nutting and Michael Chen, is again seeking a TRO to stay the proceedings and to preserve the status quo, claiming possible violation of its due process rights, “pursuant to Rule 65 (b) of the Federal Rule of Civil Procedure.”

The temporary restraining order seeks to bar the CCC from proceeding with deliberation and voting for the revocation hearing of IPI’s casino license on April 2.

According to the 28-page memorandum in support of the TRO, IPI argues that its due process rights were violated because four of the five CCC commissioners served as the hearing officers in the revocation proceedings (despite oral motions made by IPI that they be disqualified).

In addition, IPI argues that having these commissioners serve as the hearing officers violates IPI’s due process rights because they have significant personal interests in the outcome of the proceedings.

“Plaintiff has a right to resolve in an impartial, disinterested, and competent forum whether the $3 million annual regulatory fee statute (upon which the revocation effort is based) is constitutional, and whether force majeure would be a valid defense for IPI’s failure to make the annual regulatory fee payment in year 2020. The revocation hearing conducted by CCC from Feb. 28 to March 1, where four of the five commissioners sat through the proceeding as the hearing commissioners, [went ahead] despite four oral motions for disqualification raised by IPI during the revocation proceeding. The four hearing commissioners have significant, direct, pecuniary and arguably personal interests in the outcome of the proceeding. As such, the proceeding took place in the past has already violated IPI’s constitutional due process rights,” said IPI.

IPI also argues that the CCC, with the five commissioners as the voting members for the revocation hearing, is ill-fitted to adjudicate the complex legal issues for two reasons: potential conflict of interests and institutional incompetency and lack of resources.

Because of this, IPI argues that the decision whether to revoke IPI’s casino gaming license should be made by a court.

“None of the five commissioners are lawyers. Aside from the conflicts of interests, it would be a difficult task for the five commissioners to adjudicate the complex legal issues before them. A decision by the court with competent jurisdiction on the issues of constitutionality, forum selection, conflict of interests, force majeure, etc. will provide guidance to CCC in deciding the issues presented before CCC. An adverse and rushed decision by CCC would surely invite additional litigation in both CNMI and federal courts, which would result in a waste of judicial resources,” IPI argues.

In addition, IPI claims that if the deliberation proceedings move forward, with all five commissioners as decisionmakers, the revocation of IPI’s license would be a virtual certainty.

“Under [the Commonwealth Code] on the suspension and revocation of the casino license, a unanimous vote of all commissioners is required. It would be ‘professional suicide’ for the five commissioners to decide otherwise. Plaintiff’s fundamental rights guaranteed by the Constitution will suffer irreversible harm. Given the imminence of the deliberation and decision to be conducted by the five commissioners of CCC on April 2, plaintiff is unlikely to receive a hearing by this court on these questions until long after its license is revoked, its billion-dollar investment is shuttered, and its own solvency put at grave risk. The anticipated $300-million investment aimed at revitalizing the gaming industry in [the] CNMI will be jeopardized, and the economy of [the] CNMI will suffer harm,” said IPI.

IPI has two pending lawsuits in the U.S. District Court for the NMI, which claims the CCC lacks jurisdiction to adjudicate claims arising from the Casino License Agreement.

“CCC moving forward with revocation proceedings ultimately negates IPI’s claims regarding CCC’s jurisdiction to adjudicate,” IPI argues.

According to IPI’s lawsuit, IPI committed in 2014 to a long-term investment of $3.14 billion to the CNMI for the development of a casino and hotel complex after the parent company of IPI, Best Sunshine International Ltd., was awarded an exclusive license to operate a casino in CNMI.

Plaintiff’s commitment was memorialized in the CLA between IPI and CNMI, which was represented by CNMI’s Lottery Commission and its acting attorney general.

Under the CLA, the authority of the Lottery Commission ceased and the Office of the Governor and the Commonwealth Casino Commission became charged with implementing and enforcing the CLA.

Under the CLA, IPI is required to pay an annual license fee of $15 million.

IPI now claims that, despite the significant license fee it already paid, the CNMI went around the CLA and enacted by statute and regulation an annual “regulatory fee” of over $3 million to be paid by IPI above and beyond its annual license fee.