Amicus Brief of Caprice Roberts and Doug Rendleman in Support of the Bad River Band of the Lake Superior Tribe of Chippewa Indians

27 Pages Posted: 17 Nov 2023 Last revised: 30 Nov 2023

See all articles by Caprice L. Roberts

Caprice L. Roberts

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Doug Rendleman

Washington and Lee University - School of Law

Date Written: October 18, 2023

Abstract

This Amici brief addresses the law of restitution and its proper application to the restitution and trespass claims in the Bad River Band case. This case warrants restitution relief based on defendant's conscious wrongdoing in trespassing via a pipeline across the Lake Superior Tribe's land. The restitution remedy should disgorge defendant's wrongful profits. Core restitution principles require undoing unjust enrichment and deterring opportunism. The trial court held that restitution should flow based on the conscious wrongdoing, but then awarded a de minimis amount ($5 million) despite defendant's $1.1 billion in net profits and an additional $296 million in savings from deferring necessary rerouting of the trespassing pipeline. The trial court's deflated award is illogical and arbitrary and fails to honor the law of restitution.

The outcome of this case may have far-reaching implications for similarly situated parties who seek to structure their affairs based on expectations of the remedies likely to attach to future conduct. It is vital that such defendants not be able to engage in conscious opportunism without appropriate consequences. Thus, it is important that the Seventh Circuit correct the trial court’s error and craft an appropriate restitution remedy in this case. Amici conclude that the Court should vacate the trial court’s restitution award and enter a new award consistent with the principles of restitution law.

Co-drafting and court submission handled by amici lawyers, Timothy D. Elliott and
Paris L. Smith, both of Rathje Woodward.

Keywords: restitution, unjust enrichment, disgorgement of profits, trespass, Indian lands

Suggested Citation

Roberts, Caprice L. and Rendleman, Doug, Amicus Brief of Caprice Roberts and Doug Rendleman in Support of the Bad River Band of the Lake Superior Tribe of Chippewa Indians (October 18, 2023). Available at SSRN: https://ssrn.com/abstract=4608277 or http://dx.doi.org/10.2139/ssrn.4608277

Caprice L. Roberts (Contact Author)

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

440 Law Center Building
Baton Rouge, LA 70803
United States
225-578-8479 (Phone)
225-578-8202 (Fax)

HOME PAGE: https://www.law.lsu.edu/directory/profiles/caprice-roberts/

Doug Rendleman

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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