Friday, February 22, 2008

D.C. Circuit Bars Air Force From Disclosing Contractor’s Pricing Information in Response to FOIA Request

Whether pricing information furnished to the Government by a contractor is discoverable through a FOIA request was before the D.C. Circuit Court of Appeals recently. In Canadian Commercial Corp. v. Department of the Air Force,"", the court held that such information is protected from disclosure under Exemption 4 of the Freedom of Information Act.

In 2003, an unsuccessful bidder filed a FOIA request with the Air Force seeking a copy of the contract awarded to CCC which contained line-item pricing information. CCC objected on the basis that the line-item rates constituted trade secrets. The Air Force rejected CCC's contention and issued a decision letter indicating its intention to release the information. CCC filed a "reverse" Freedom of Information suit seeking to prevent the Air Force from releasing the information. It prevailed at the district court level, but the Air Force appealed.

On appeal, the D.C. Circuit noted that Exemption 4 of FOIA protects from disclosure "matters that are … trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Commercial or financial information is "confidential" if it is obtained from a person involuntarily and its disclosure would either "impair the Government's ability to obtain necessary information in the future; or .. cause substantial harm to the competitive position of the person from whom the information was obtained." The court held that line-item pricing meets this test.

Tuesday, February 19, 2008

Federal Court Dismisses Unfair Business Practice Claims Despite "Perhaps Unsavory" Conduct

For a good illustration of the line between an unfair business practices and the "essence of competition in a free market society," see Frank Brunckhorst Co., L.L.C. v. Coastal Atlantic, Inc., 2008 WL 276409, *9 (E.D.Va. 2008), which was published on January 29, 2008 and can be found here In Coastal Atlantic, the national distributor of Boar’s Head Provisions Co. meat and deli products, Frank Brunckhorst Co., L.L.C. ("Brunckhorst"), was sued by its regional distributor for the Tidewater, Virginia area, Coastal Atlantic, Inc. ("Coastal"). In its decision, the court addressed the subjects covered in our first blog entry: what is an unfair business practice? See

Coastal filed seemingly every unfair business practice claim against Brunckhorst for the latter party's decision to terminate their twenty-three year oral "at-will" contractual relationship allegedly based on Coastal's problems with product integrity. Even though an at-will contract "may be terminated by either party at any time, with or without cause," Coastal argued the termination was actionable because it had been assured at the outset that it would have exclusive distribution rights as long as it "(1) promoted the Boar’s Head brand and, (2) built brand identification." Id. at 3. Brunckhorst allegedly terminated Coastal despite Coastal’s alleged compliance with those terms.

Coastal further alleged that after it was terminated and began distributing a rival's brand's products, Brunckhorst "threatened certain retailers that, if they bought [the rival’s] products from Coastal, they would not be able to purchase Boar’s Head products . . . ." Id. at 8.

Coastal filed the following claims against Brunckhorst: actual and constructive fraud, tortious interference with contract and with business expectancy, business conspiracy, breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment. The court dismissed each of these counts.

Underlying the Court's decision, was its conclusion that Brunckhorst was legally permitted to terminate its distributor relationship with Coastal. And, as our blog previously discussed, fraud or any other tort must arise out of a duty beyond one arising out of a contract duty. See Illustrative of the court's reasoning, it found that Brunckhorst's alleged threat to retailers "fails to rise to the level of improper interference," although "perhaps unsavory" because "Brunckhorst’s tactics . . . were within its legal rights." And, "this is the essence of competition in a free market society." Id. at 8. Using the same logic, the Court dismissed Coastal's business conspiracy claim.

This case is another warning to litigants to pay careful attention to the nature of the improper/unlawful action when considering a tortious unfair business practice claim.

Thursday, February 14, 2008

Maryland Court Finds No Duty to Mitigate Damages When An Enforceable Liquidated Damages Provision Exists

If you are a parent with a child in daycare, like me, or private school, you know all too well the difficult choice of selecting the perfect provider. Many providers require you to pay a substantial deposit to secure your child's place with only a short cancellation window. But, what happens if you cancel after the deadline passes? And, if the provider already is capacity-filled or can place another child in your child's stead, should the law allow the provider to keep your deposit?

That question was presented to the Court of Appeals of Maryland in Barrie School v. Andrew Patch, et al., 401 Md. 497, 933 A.2d 382 (2007), found at There, the Court held that when a contract contains an enforceable liquidated damage, the non-breaching party has no obligation to mitigate his damages. As we mentioned in our prior blog entry,, parties should consider negotiating a liquidated damages provision to avoid having to prove complicated damage questions. Liquidated damages are defined as a "specific sum stipulated to and agreed upon by the parties at the time they entered into a contract, to be paid to compensate for injuries in the event of a breach of that contract." Id. at 507, 933 A.2d at 388.

Before addressing the duty to mitigate issue, the Court first examined the rules pertaining to liquidated damages. The Court embraced a three-part test to determine whether a contract clause constitutes a liquidated damages provision: "First, such a clause must provide in clear and unambiguous terms for a certain sum. Secondly, the liquidated damages must reasonably be compensation for the damages anticipated by the breach. Thirdly, liquidated damage clauses are by their nature mandatory binding agreements before the fact which may not be altered to correspond to actual damages determined after the fact." Id. at 509, 933 A.2d at 389 (internal citation omitted).

In addition, a liquidated damages provision may not be "grossly excessive and out of all proportion to the damages that might reasonably have been expected to result from such breach of the contract." Id. at 509, 933 A.2d at 389-90 (internal citations and quotations omitted). And, the Court adopoted the following analysis: "a liquidated damages provision will be held to vioate public policy, and hence will not be enforced, when it is intended to punish, or has the effect of punishing, a party for breaching the contract, or when there is a large disparity between the amount payable under the provision and the actual damages likely to be caused by a breach, so that it in effect seeks to coerce performance of the underlying agreement by penalizing nonperformance and making a breach prohibitively and unreasonably costly." Id. at 510, 933 A.2d at 390 (internal citations and quotations omitted).

The Court then used a two-part test to determine whether a liquidated damages provision should be treated as an enforceable penalty: "First, the clause must provide a fair estimate of potential damages at the time the parties entered into the contract." Id. at 510, 933 A.2d at 390. "Second, the damages must have been incapable of estimation, or very difficult to estimate, at the time of contracting." Id. Using that test, the Court held that the school's one-year tuition liquidated damage provision was "enforceable because [the damages] were neither grossly excessive nor out of proportion of those which might have been expected at the time of contracting." Id. at 512, 933 A.2d at 391.

After determining that the provision was enforceable, the Court held that the non-breaching party has no duty to mitigate its actual damages "[b]ecause mitigation of damages is [only] part of a post-breach calculation of actual damages...." Id. at 514-15, 933 A.2d at 392-93. And, such an analysis would "blunt" the purpose of having a liquidated damages provision. Id.