Small Victory for Rounds and South Dakota: Darley Loses SDIBI/EB-5 Case

The only good news Mike Rounds gets today is that a California arbitrator has rejected Darley International's attempt to make the state pay for breaching a contract for EB-5 recruitment. The Board of Regents, which technically operated the EB-5 visa investment program through the South Dakota International Business Institute on the NSU campus through 2009, issues this sigh of relief:

A California arbitrator’s decision has vindicated the South Dakota Board of Regents and the state of South Dakota in a breach of contract case involving the federal EB-5 immigrant visa program. The decision, announced today, denied all claims and counter-claims in a case brought by Darley Commercial LLC against Hanul Professional Law Corp. and the South Dakota International Business Institute. SDIBI is located at Northern State University.

“We are very pleased with this outcome,” said Jack Warner, the regents’ executive director and CEO. “This has been a long arbitration and we had been optimistic all along about its resolution. It is good to see that the arbitrator’s decision has validated our expectation of a positive resolution to this case.”

Arbitrator Robert A. Baines found that the International Business Institute had the power to legally terminate its use of the Hanul law firm as an unofficial exclusive marketer for EB-5 projects, and there was no breach of contract when SDIBI ended that arrangement in January 2008. Baines further found that the non-compete clauses that Darley Commercial extracted from Hanul were unenforceable under California law, which therefore cut off claims made against SDIBI.

The arbitrator’s decision, JAMS Arbitration Case No. 1100054680, can be found online atwww.sdbor.edu/ArbitrationDecision.pdf.

[South Dakota Board of Regents, press release, 2014.10.07].

Hey, maybe Joop can come back from the Philippines now!

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Tasty morsels from the Judge Baines's arbitration ruling:

Funding for [Bollen's] position came from both NSU and the Governor's Office. He received administrative support through the School of Business, and although he reported to both the University and the Governor's Office, it appears that he operated without significant supervision from either [Robert A. Baines,JAMS Arbitration Case #1100054680, 2014.10.07, p. 7].

...in early November of 2007, Bollen submitted to USCIS a formal request to amend the Regional Center's charter so as to... have the Regional Center contract with a private corporation with a similar sounding name ("SDRC Inc.") to run the Regional Center's operations. For this last item, Bollen submitted to USCIS a proposed Memorandum of Understanding ("M.O.U.") between SDIBI-DEDR and this private corporation, SDRC, Inc. In his submittal, he did not reveal that SDRC, Inc. was to be his own corporation; rather, he told USCIS that SDRC, Inc. "will be controlled by Hanul Professional Law Corporation."

Without waiting for USCIS approval, Bollen his plans into effect at the beginning of 2008 [pp. 8–9].

http://madvilletimes.com/2014/10/victory-for-rounds-and-south-dakota-darley-loses-sdibieb-5-case/

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• Joop Bollen

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• South Dakota