United States Second Circuit

In cross-suits alleging breach of a long-term energy contract, award of damages to defendants for replacement products is vacated where plaintiff was not under any obligation to take replacement products in the pre-commercial operation date period. Denial of damages to defendants under the termination payment provision is also vacated where district court erroneously concluded, however, that the profits lost were consequential damages, and where the court erred in requiring defendant to prove the extent of its damages to a reasonable certainty.

Appellate Information

• Decided 05/22/2007
• Published 05/22/2007

Judges

• WESLEY, Circuit Judge., Before:  SACK, SOTOMAYOR, WESLEY, Circuit Judges.

Court

• United States Second Circuit

Counsel

• For Appellees:
  
• Michael Lesch, LeBoeuf, Lamb, Greene & MacRae LLP, New York, N.Y. (Theodore J. Fischkin, Randall M. Fox, Stephanie A. Wilkins, on brief), for Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees., Steven C. Bennett, Jones Day, New York, N.Y. (Bonnie L. Hemenway, Todd S. Swatsler, Robert W. Hamilton, Michael R. Gladman, on brief), for Defendants-Counterclaimants-Appellees-Cross-Appellants.