SIGA TECHNOLOGIES, INC., a Delaware Corporation v. PHARMATHENE, INC., a Delaware Corporation
No. 20, 2015
IN THE SUPREME COURT OF THE STATE OF DELAWARE
December 23, 2015
Court Below: Court of Chancery of the State of Delaware, C.A. No. 2627-VCP; Submitted: October 7, 2015; Corrected: December 28, 2015
Upon appeal from the Court of Chancery. AFFIRMED.
Stephen P. Lamb, Esquire (Argued), Meghan M. Dougherty, Esquire, Matthew D. Stachel, Esquire, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Wilmington, Delaware, for Defendant Below, Appellant/Cross-Appellee SIGA Technologies, Inc.
Roger Crane, Esquire (Argued), K&L Gates LLP, New York, NY, Christopher A. Selzer, Esquire, McCarter & English, LLP, Wilmington, Delaware, for Plaintiff Below, Appellee/Cross-Appellant PharmAthene, Inc.
SEITZ, Justice, for the Majority:
This is the second appeal by SIGA Technologies, Inc. (“SIGA“) from a Court of Chancery judgment awarding PharmAthene, Inc. (“PharmAthene“) damages stemming from failed merger and license negotiations between the parties. In the first appeal, this Court upheld the Court of Chancery‘s finding that SIGA in bad faith breached its contractual obligation to negotiate a license agreement consistent with the parties’ license agreement term sheet, known throughout this litigation as the “LATS.” This Court also held that where parties have agreed to negotiate in good faith, and would have reached an agreement but for the defendant‘s bad faith conduct during the negotiations, the plaintiff can recover contract expectation damages, so long as the plaintiff can prove damages with reasonable certainty. Because the Court of Chancery ruled out expectation damages in its first decision, this Court remanded the case to reconsider an award of damages to SIGA in a decision we will call ”SIGA I.”1
The Court of Chancery did as instructed and reevaluated the evidence, including evidence of expectation damages. Although the court previously found that lump-sum expectation damages were too speculative to recover, the Court of Chancery held on remand that PharmAthene met its burden of proving with reasonable certainty
SIGA raises essentially two claims of error in the current appeal: first, the Court of Chancery was not free to reconsider its prior holding that lump-sum expectation damages were too speculative; and, second, if reconsideration was permitted, the expectation damages awarded following remand were too speculative. After careful consideration of SIGA‘s arguments, we find that the law of the case doctrine did not preclude the Court of Chancery from reconsidering its earlier determination that lump-sum expectation damages were too speculative. In SIGA I, this Court clarified that expectation damages were available, instructed the Court of Chancery to revisit its damages award, directed the trial court to reevaluate the helpfulness of expert testimony, and permitted the court to make any order in further progress of the case not inconsistent with the SIGA I decision. The Court of Chancery followed the law of the case by complying with the mandate in SIGA I.
We also find that the court did not abuse its discretion when it awarded PharmAthene lump-sum expectation damages, and its factual findings supporting its new damages determination were not clearly erroneous. The Court of Chancery considered anew all issues relevant to the remedy, including the uncertainty caused by the wrongdoer‘s breach. When a party breaches a contract, that party often creates a course of events that is different from those that would have transpired absent the breach. The
II. FACTUAL BACKGROUND6
A. SIGA‘s Development Of ST-246
In 2004, SIGA acquired technology for ST-246, an antiviral drug for the treatment of smallpox. At that time, the viability, potential uses, safety, and efficacy of the drug, as
By late 2005, SIGA was running out of money, its largest shareholder, MacAndrews & Forbes, refused to invest additional funds, and the NASDAQ threatened to de-list its shares. SIGA estimated that it needed an additional $16 million to complete development of the drug. On top of its financial problems, SIGA was having trouble developing ST-246 because it had no experience or employee expertise bringing a drug to market.
B. SIGA And PharmAthene Negotiate A Business Collaboration
In dire straits, SIGA began discussing a possible collaboration with PharmAthene. This was not their first attempt to work together. PharmAthene had previously backed out of merger negotiations between the parties in late 2003. Nevertheless, Thomas Konatich, SIGA‘s Chief Financial Officer, contacted Eric Richman, PharmAthene‘s Vice President of Business Development and Strategies, to begin discussions. According to Richman‘s contemporaneous notes, due to the prior failed attempt at a merger and to SIGA‘s need for a fast cash infusion, SIGA insisted on framing a license agreement before discussing a potential merger.
Both companies put together teams to negotiate the potential business collaboration. On SIGA‘s side, in addition to CFO Konatich, the key participants included the Chairman of SIGA‘s board, Donald Drapkin, who also served as the Vice Chairman of SIGA‘s biggest stockholder, MacAndrews & Forbes; SIGA‘s Chief Scientific Officer, Dennis Hruby, who kept SIGA‘s senior management apprised of
PharmAthene‘s team, assembled by Richman, included CEO David Wright; CFO Ronald Kaiser; and board member Elizabeth Czerepark; as well as attorney Jeffrey Baumel. PharmAthene also later hired attorney Elliot Olstein who communicated with SIGA‘s attorney Coch in the time leading up to SIGA‘s breach.
1. SIGA And PharmAthene Negotiate And Sign The LATS
Konatich and Richman led the negotiations over the license agreement on behalf of their companies. The Court of Chancery found that at the end of 2005, the parties conservatively valued ST-246‘s market potential at around $1 billion to $1.26 billion.7 The parties reflected their negotiations in the specific terms of the LATS, with the last
The LATS included a number of economic terms. PharmAthene had to pay a total “License Fee” of $6 million, consisting of (1) a $2 million upfront cash payment; (2) a $2.5 million deferred license fee to be paid 12 months after the execution of a license agreement upon the occurrence of certain events; and (3) a $1.5 million payment to be made after SIGA obtained over $15 million in financing. The LATS also required PharmAthene to pay up to an additional $10 million for SIGA‘s achievement of certain milestones such as meeting specific sales targets and obtaining necessary regulatory approvals. Additionally, PharmAthene was required to make incremental annual royalty payments on net sales of “Patented Products” on a sliding percentage scale of between 8% and 12%, depending on the amount of yearly sales. SIGA was also “entitled to
2. SIGA And PharmAthene Enter Into A Bridge Loan Agreement And A Merger Agreement
Due to SIGA‘s precarious financial position, PharmAthene agreed to provide SIGA with bridge financing for continued development of ST-246 while the parties negotiated a merger. On March 20, 2006, the parties entered into a Bridge Loan Agreement whereby PharmAthene loaned SIGA $3 million. Section 2.3(a) of the Bridge Loan Agreement bound the parties to negotiate in good faith a license agreement in accordance with the terms of the LATS if the merger was terminated or not executed, and imposed a 90-day exclusivity period.11
After executing the Bridge Loan Agreement, SIGA and PharmAthene continued to negotiate the merger. In connection with the merger discussions, PharmAthene created a financial model in February 2006 based on SIGA‘s evaluation of ST-246‘s market potential (the “PharmAthene Model“). On June 8, the parties signed a Merger
C. ST-246‘s Prospects Improve As The Drug Hits Development Milestones And SIGA Acquires Funding
After the parties signed the Merger Agreement, SIGA experienced several positive developments, the most important of which related to developments suggesting that ST-246 had bright prospects. First, on June 9, SIGA‘s Chief Scientific Officer, Hruby, received news of a $5.4 million award for ST-246 from the National Institute of Allergy and Infectious Disease.13 Hruby informed Konatich of the grant in an email, to which Konatich responded: “[I]t is a damn shame we had to merge.”14 Hruby stated in his response: “With the 5.4M grant being activated, the 10.9M BAA award on its way, an 8M grant pending along with a couple of appropriations—we could have gone all the way ourselves. Instead we got sold into slave labor and if anything the [PharmAthene] gang
A few months later, on September 27, Hruby emailed a number of high-level SIGA officials (including CEO, Donald Drapkin, and board member Adnan Mjalli) to inform them of the company‘s recent accomplishments. In this email, Hruby lauded the success of recent trials of ST-246 as “excellent” and having “no adverse effects.”18 He also noted that he presented to the Department of Homeland Security and the Department of Defense (“DoD“) the week before, and that the agencies were “very ‘impressed’ and both indicated acquisitions in the future.”19 He further explained that “[the Department of Homeland Security] is developing an implementation plan that will be disclosed ~ Jan. 1 that should spell out the timing and size of the acquisition. Of note, both groups also indicated an interest in acquiring our HFV antivirals in development.”20 Notably, Hruby also announced the following:
[W]e just received today notice of award on a $16.5M contract from the [National Institutes of Health] to fund all ST-246 development activities up to and through the NDA filing. Bottom line is the product‘s entire
After pointing out all of SIGA‘s recent successes, Hruby concluded in his email:
I have grave concerns about the merger as it is currently going forward in that it appears that the merged company will not be [Small Business Innovation Research] compliant. In that case, we would have to shut down $30M in current grants and contracts and damage all the positive relationships we have developed to date.22
When Hruby testified at trial, he stated that his representation that $30 million would be lost “might have been an exaggeration.”23
D. SIGA Terminates The Merger Agreement And Proposes A LLC Agreement In Place Of A Licensing Agreement In Accordance With The Terms Of The LATS
Meanwhile, the Merger Agreement‘s drop-dead date of September 30 approached, but the SEC had not yet approved SIGA‘s draft of the related proxy statement. On October 3, Fasman emailed Hruby stating: “Here is the decision to be reached: Should SIGA continue with its merger plans or should it try to go it alone?”24 SIGA‘s board met the next day. According to the board minutes, Chairman Drapkin discussed the planned merger and whether SIGA should exercise its right to terminate the merger given that it did not close before September 30, or whether SIGA should grant PharmAthene an extension. Hruby gave a presentation about SIGA‘s scientific results and Konatich presented on SIGA‘s financial status. At this meeting, the SIGA board resolved to terminate the Merger Agreement.
On October 26, PharmAthene attorney Elliot Olstein emailed SIGA attorney Nicholas Coch, advising Coch that PharmAthene was prepared to sign its proposed draft of the license agreement.26 Coch responded that the nature of the negotiations necessitated a meeting.27
On November 6, the parties met for the first time since SIGA‘s termination of the merger agreement to discuss a license agreement. Richman attended the meeting with PharmAthene attorneys Baumel and Olstein. Konatich and Rose were present on SIGA‘s side along with their legal counsel, Coch and attorney Fasman. Fasman spoke to SIGA‘s perspective, emphasizing the LATS‘s reference to a “partnership” between the parties and the need to revise some of the economic terms of the LATS. He proposed a $40 to
On November 9, SIGA announced that ST-246 demonstrated protection against the monkeypox virus in two primate trials. Then, on November 21, SIGA sent PharmAthene a draft LLC Agreement that departed drastically from the terms of the LATS in a way that strongly favored SIGA.
E. SIGA‘s Internal Valuation Of ST-246 Ranged Between $3 Billion And $5.6 Billion Before SIGA‘s Breach
With SIGA‘s proposed draft of an LLC agreement in the background, in a series of emails on November 27 and 28, Fasman communicated with SIGA‘s senior management—including CFO Konatich, CEO Drapkin, Controller Dugary, and two board members—about ST-246‘s valuation.28 Fasman‘s initial email on November 27 criticized the PharmAthene Model, which reflected sales of between $300 million and $700 million per year starting in 2008, calling this projection “clearly erroneous.”29 Fasman attached a revised revenue projection that he prepared with input from Konatich and Dugary, and proposed that SIGA should advocate to use the assumptions in his projection in its discussions with PharmAthene.30 He concluded, “[a]s you will see, all of the individual assumptions are easily justified, and the result shows a $3 billion valuation
A comparison of the parties’ assumption attached to Fasman‘s email shows that SIGA assumed a price of $75 per course of treatment in the U.S. and $100 abroad (with a smaller net margin abroad due to greater marketing expenses).33 The comparison table revealed additional differences between the parties’ assumptions. For example, PharmAthene assumed a 5% contraindication rate34 for purchase into the Strategic National Stockpile (the “National Stockpile“) whereas SIGA‘s table stated that ST-246 can be “therapeutic, prophylactic and adjuvant” and assumed a 20% contraindication rate,35 which Fasman lowered to 15% in a subsequent email.36 Also, as to purchase of ST-246 into the National Stockpile, the table reflected that PharmAthene‘s view was that the “[r]equirement does not yet exist—dependent on DHHS ‘integration plan’ to be
In response to Fasman‘s initial email, Dugary suggested that Fasman raise the profit margin used in his projection: “I think the excel spreadsheet you sent reflected only 33% margin. If you recalculate (see attached revised) with the 75% margin, the net present value increases to $5.1 billion.”40 Fasman replied to inform the group that he raised the profit margin, but that this resulted in a net present value that was “unreasonably high.”41 He further explained in his email that he made additional adjustments to his original valuation to come up with a net present value of $5.6 billion, calling this “more than sufficient for [SIGA‘s] needs.”42 In another email sent later that day, however, Fasman noted that “accepting [PharmAthene‘s] treatment and pricing assumptions, which would lead to a profit margin in excess of 90%, and otherwise using the same cost and discounting assumptions that the prior spreadsheet used, leads to a
On December 4, SIGA attorney Coch sent a letter to PharmAthene attorney Olstein. Coch‘s letter stated that SIGA received PharmAthene‘s projections for ST-246, reflecting a future revenue stream of over $2 billion. He further stated that the terms in the proposed LLC agreement were realistic and fair given PharmAthene‘s valuation, “[a]lthough SIGA believes the actual value of [ST-246] is well in excess of $5 billion (based on projected sales that incorporate more realistic assumptions of the size of the market and up-to-date information concerning the likely uses of [the drug]).”45 On December 6, Olstein replied that PharmAthene indicated at a meeting with SIGA that it was “willing to consider” a 50-50 split, and that if SIGA was “married” to having an LLC structure it should incorporate the split into that structure. PharmAthene at no time indicated that it was “prepared to accept a 50-50 proposal or any other proposal in lieu of the binding terms of the [LATS].”46 On December 12, Coch sent a letter back to Olstein, stating that SIGA was prepared to negotiate a definitive agreement “without preconditions,” but that if PharmAthene insisted on the terms of the LATS as binding,
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The reason for the end of negotiations has to be underscored to understand the Court of Chancery‘s damages award. SIGA refused to enter into a license agreement in accordance with the LATS not because of any uncertainty about the strongly positive future results for ST-246. Rather, SIGA refused to contract on terms consistent with the LATS because it had come to the belief that ST-246 was worth $3 billion as a conservative matter—due to events that suggested that ST-246‘s prospects were much brighter than when the parties agreed to the LATS. As is the case in any business situation, SIGA‘s belief was based on its estimate of the future cash flow ST-246 would generate. This reasoned estimate led SIGA first to refuse to merge, and then refuse to negotiate a license agreement on the same material terms as were in the LATS.
III. PROCEDURAL HISTORY
A. The Court of Chancery‘s 2011 Decision
In January 2011, the court held an eleven-day trial. In a September 22, 2011 decision (the “2011 Decision“) the Court of Chancery found, among other things, that (1) SIGA breached its contractual obligation under the Bridge Loan Agreement and the Merger Agreement to negotiate in good faith a definitive license agreement in accordance with the terms of the LATS; (2) the parties would have agreed to a license agreement that
The Court of Chancery declined to award lump-sum expectation damages to PharmAthene, finding that “a specific sum of money representing the present value of the future profits it would have received absent SIGA‘s breach is speculative and too uncertain, contingent, and conjectural.”50 The Court of Chancery additionally declined to order specific performance because it would impose too great a burden on the trial court to supervise the parties to ensure that they were faithfully carrying out their obligations to negotiate a license agreement in accordance with the terms of the LATS.51
On May 31, 2012, the Court of Chancery issued a Final Order and Judgment together with a Letter Opinion. SIGA appealed and PharmAthene cross-appealed to this Court.
On May 24, 2013, in SIGA I, this Court affirmed the Court of Chancery‘s decision in part, reversed in part, and remanded for further proceedings consistent with its opinion. To begin, SIGA I upheld the Court of Chancery‘s decision that SIGA had in bad faith breached its contractual obligations under the Bridge Loan Agreement and the Merger Agreement to negotiate a license agreement in accordance with the LATS.52
SIGA I then reversed the Court of Chancery‘s finding that SIGA was liable on a theory of promissory estoppel. In SIGA, this Court reasoned that “promissory estoppel does not apply . . . where a fully integrated, enforceable contract governs the promise at issue,”53 and in this case, there were two enforceable contracts.54 SIGA I noted that the Court of Chancery “must look to the contract as a source of remedy on the breach of an obligation to negotiate in good faith.”55
Next, SIGA I discussed “Type II preliminary agreements,” which are “preliminary agreements [where the parties] ‘agree on certain major terms, but leave other terms open for further negotiation.‘”56 After surveying the law adopted by federal courts,57 SIGA I held:
[W]here the parties have a Type II preliminary agreement to negotiate in good faith, and the trial judge makes a factual finding, supported by the record, that the parties would have reached an agreement but for the defendant‘s bad faith negotiations, the plaintiff is entitled to recover contract expectation damages.58
In a footnote to this holding, SIGA I stated that “[a]n expectation damages award presupposes that the plaintiff can prove damages with reasonable certainty.”59
Based on the foregoing, SIGA I remanded to the Court of Chancery with specific instructions to reconsider the damages issue:
Because we had not previously addressed whether Delaware recognizes Type II preliminary agreements and permits a plaintiff to recover expectation damages, and because it is unclear to what extent the Vice Chancellor based his damages award upon a promissory estoppel holding rather than upon a contractual theory of liability predicated on a Type II preliminary agreement, we reverse the Vice Chancellor‘s damages award and remand the case for reconsideration of the damages award consistent with this opinion.60
In SIGA I, this Court also explained when instructing the Court of Chancery to reconsider the award of attorneys’ fees:
On remand, the Vice Chancellor shall redetermine his damage award in light of this opinion and is free to reevaluate the helpfulness of expert testimony. Therefore, we reverse the award of attorneys’ fees and expenses
Finally, SIGA I noted that it did not reach any of PharmAthene’s claims on cross-appeal, specifically acknowledging that it did not determine whether the Court of Chancery erred in declining to award specific performance, among other remedies:
PharmAthene’s claims that it is entitled to (1) an alternative payment stream based on the LATS’s terms, (2) specific performance granting it a license in accordance with the LATS’s terms because the LATS is an enforceable contract, or (3) recover damages under the doctrine of unjust enrichment. All those claims are alternative contentions advanced in the event we do not affirm the Vice Chancellor’s judgment. Because we affirm the Vice Chancellor’s finding that SIGA is liable for breaching its contractual obligations to negotiate in good faith in accordance with the LATS’s terms, we do not reach these arguments.
Significant to the present appeal, SIGA I observed that the Court had not determined whether the Court of Chancery erred in declining to award lump-sum expectation damages because such damages were too speculative, and instead remanded for reconsideration of the issue:
PharmAthene also contends that the Vice Chancellor erroneously failed to award PharmAthene its lump-sum expectation damages on the basis that they would be too speculative. We do not need to reach this claim either, because we reverse the Vice Chancellor’s damages award and remand for him to reconsider it in light of this opinion.62
C. The Court of Chancery’s Decision On Remand
1. The Court Of Chancery Determined That It Was Not Bound By Its Prior Decision Denying Expectation Damages As Too Speculative
The Vice Chancellor first addressed the threshold questions—whether the trial court may reconsider conclusions made in the 2011 Decision and, if so, whether there was any basis to change his prior holding in those respects. On the first issue, the Vice Chancellor concluded that “[t]he plain language of the Supreme Court decision indicates that I may reconsider my prior finding that an award of lump-sum expectation damages to PharmAthene would be improper because such a measure of damages is too speculative.”66 The Vice Chancellor based that conclusion on several aspects of SIGA I. He cited the fact that SIGA I did not reach PharmAthene’s claim that the Court of Chancery erred in not imposing lump-sum expectation damages for being too speculative.
The Vice Chancellor reasoned that the latter guidance “would be rendered largely superfluous if the rest of [SIGA I] is read as prohibiting [the Court of Chancery] from reconsidering whether PharmAthene is entitled to lump-sum expectation damages for SIGA’s bad faith breach.”68 Thus, the Vice Chancellor concluded that “while I have the authority to reaffirm my previous decision in that regard, I am not required or bound by it to reach the same conclusion I did previously.”69
The Vice Chancellor expressed a similar sentiment where he discussed the merits of an award of lump-sum expectation damages. There, he stated that “the Supreme Court explicitly invited me to reconsider my prior holding that an award of lump-sum expectation damages to PharmAthene for SIGA’s bad faith was unduly speculative.”70 He then reasoned that a meaningful reconsideration requires a reexamination of the expert testimony relating to expectation damages. According to the Vice Chancellor, his conclusion was supported by the instruction in SIGA I to redetermine the attorneys’ fees and expenses award, and by SIGA I’s holding that Type II agreements could support an award of expectation damages, noting that the uncertainty as to this point of law was part of the reason that he had imposed an equitable remedy in the first instance.
Finding that the court was not restricted from reconsidering its prior holding that an award of lump-sum expectation damages would be too speculative, the Court of Chancery proceeded to analyze the issue on the merits.
At the outset, the Court of Chancery noted that the relevant inquiry for awarding expectation damages was: “[A]t the time of SIGA’s breach in December 2006, what were the parties’ reasonable expectations regarding PharmAthene’s ability to realize profits from the sale of ST-246 under a license agreement in accordance with the LATS[?]”76 The Court of Chancery also acknowledged SIGA I’s observation that an award of lost profits “‘presupposes that the plaintiff can prove damages with reasonable certainty.’”77 Further, the Court of Chancery stated that “[w]hile proof of the fact of damages must be certain, proof of the amount can be an estimate, uncertain, or inexact.”78 The court additionally noted its ability to “take into account all the circumstances of the breach, including willfulness, in deciding whether to require a lesser degree of certainty, giving greater discretion to the trier of facts.”79 In addition to considering events that existed at
The Court of Chancery then considered PharmAthene’s claim for expectation damages by considering the parties’ expectations and analyzing a damages calculation model prepared for the original trial by an experienced valuation expert, Jeffrey L. Baliban.81 Baliban’s report stated that PharmAthene retained him “to calculate the net present value of expected PharmAthene earnings from sales of the antiviral ST-246, had SIGA executed a license agreement in accordance with the terms of the LATS.”82 At trial, Baliban presented six variations of damages calculations. Noting SIGA I’s focus on the LATS as the appropriate yardstick for measuring damages, the court based its analysis on the “Basis 1 LATS Scenario,” where “Baliban calculated PharmAthene’s damages according to the terms of the LATS based on facts purportedly known as of December 20, 2006.”83 The court also considered some information from another variation of Baliban’s calculations, the “Basic 2 LATS Scenario,” which was still based
To determine the value to PharmAthene of a license for ST-246, Baliban used a discounted future earnings model to forecast earnings ten years into the future and then discounted them to their net present value at the time of the breach. As with any financial model, this required Baliban to make certain assumptions. A number of these assumptions were based on the PharmAthene Model, which was prepared by PharmAthene in early 2006 and used by the parties in their negotiations.85 Specifically, Baliban used the PharmAthene Model’s quantity and price projections for sales of ST-246 over a ten-year period from 2008 to 2017. He found that, over those ten years, PharmAthene would have sold approximately 91.9 million courses of the drug at $100 per course.
Baliban then deducted research and development costs, the costs of goods sold, and selling, general, and administrative expenses. The LATS did not address these expenses, and Baliban noted that the parties did not provide “any comprehensive analysis of costs and expense estimates or expected margins.”86 Thus, Baliban relied on “discussions with PharmAthene management personnel” and on “independent research supporting typical pharmaceutical costs and expenses” to come up with these figures.87
The LATS provided that, to the extent the net margin on sales to the U.S. Government exceeded 20 percent, such excess margin would be split 50-50 between PharmAthene and SIGA. The LATS also provided for license fees, milestone payments and royalties to be paid to SIGA in accordance with referenced amounts and timing schedules. We apply these rates to expected future ST-246 earnings . . . to yield the allocation of product earnings to PharmAthene and SIGA.88
He then applied an 84% probability of success factor to the total expected earnings from ST-246. Finally, he discounted the earnings to present value using PharmAthene’s weighted average cost of capital.89 This yielded a total payment due to PharmAthene of $1.07 billion.
The Court of Chancery scrutinized Baliban’s assumptions and inputs to aid its own analysis of the parties’ reasonable expectations at the time of breach. The court concluded that PharmAthene’s expectations of ST-246’s future prospects were informed by four primary factors: “(1) the likelihood that ST-246 ever would be sold commercially in meaningful quantities; (2) the timing of when any such sales would begin; (3) the price at which ST-246 would be sold; and (4) the quantity of ST-246 that would be sold.”90 For each of these factors, the court engaged in a careful and thorough analysis of how they affected the lost profits calculation.
The Court of Chancery took note of the facts established at the original trial and upheld by SIGA I: “SIGA’s own confidence in ST-246’s prospects, which caused it internally to value ST-246 at the time of the breach at between three and five billion dollars, and SIGA’s development of ‘seller’s remorse’ which ultimately motivated its bad faith conduct.”91 Based on this evidence, the court found that PharmAthene established that, at the time of SIGA’s breach, the parties had a reasonable expectation that ST-246 would be commercialized in the near future. In other words, the Court of Chancery reasonably took into account that it was SIGA’s increasingly bullish view of ST-246’s prospects based on what was known in December 2006 that caused it to commit a breach to secure more of the drug’s future value for itself than it would have had from a deal consistent with the terms of the LATS.
The trial court also noted that, even though SIGA was not awarded the BARDA contract until after the January 2011 trial, “the record supports a reasonable inference that [the parties] knew of BARDA’s imminent establishment” at the time of SIGA’s breach.92 The Court of Chancery further observed that, at the time of the breach, the U.S. government had already established requirements for procuring pharmaceuticals for ST-246’s target market, the National Stockpile, and that such requirements did not include FDA approval of the drug to be considered for acquisition.
The Court of Chancery also noted that post-breach sales of ST-246 to BARDA showed that the drug was being sold to its intended purchaser, and that this demonstrated that the parties in 2006 had a reasonable expectation it would be successful. Finally, the court noted that these facts came on top of SIGA’s own conduct and beliefs as to ST-246’s promising prospects, which motivated its breach, so “PharmAthene was not alone in reasonably believing ST-246 imminently would be commercialized with great success.”95 Based on all of these factors, the Court of Chancery concluded that in December 2006, ST-246 had “a very high likelihood of being commercialized in the near
b. The Timing Of When Sales Of ST-246 Would Begin
Baliban used 2008 as the time when sales of ST-246 would begin. In response, SIGA pointed out that the first courses of the drug were not delivered until 2013. PharmAthene claimed that the parties used 2008 as the start date during their negotiations and that the delay in delivery was caused by SIGA’s failure to develop the drug efficiently due to its lack of experience, whereas PharmAthene would have completed the process sooner. The Court of Chancery weighed the evidence and noted that, at the time of breach, there was no evidence as to when the drug might be procured for the National Stockpile. But, taking into account the “tremendous promise in preliminary studies, [which] enabled SIGA to raise over $20 million in development funding,” and the fact that ST-246 was “granted ‘orphan drug’ and ‘fast track’ status by the FDA,” all of which was known at the time of the breach, the Court of Chancery concluded that PharmAthene had a reasonable expectation that the U.S. government would start buying ST-246 for the National Stockpile by 2010, as opposed to 2008.97
c. The Price At Which ST-246 Would Be Sold
Baliban assumed that PharmAthene would sell ST-246 for $100 per course of treatment. PharmAthene claimed that this number was rooted in the parties’ negotiations and that it was comparable to the price the U.S. government paid for other bioterrorism-
d. The Quantity Of ST-246 That Would Be Sold
Analyzing the reasonable expectation at the time of breach of the quantity of ST-246 to be sold, the Court of Chancery considered Baliban’s quantity inputs for three separate categories of sales: (1) sales to the National Stockpile; (2) sales to the DoD; and (3) sales outside of the U.S. to foreign nations.
i. Sales Of ST-246 To The National Stockpile
Baliban used the sales projections in the PharmAthene model as a starting point to estimate the quantity of sales to the National Stockpile. PharmAthene calculated these sales by multiplying the size of the National Stockpile’s smallpox vaccine stockpile by the percentage of the population contraindicated for the smallpox vaccine, which it assumed to be 5%. Because ST-246 was intended to help the percentage of the
In assessing the reasonableness of these inputs, the Court of Chancery took account of the fact that the U.S. government was increasingly focused on bioterrorism countermeasures between 2002 and 2006 to conclude that it was reasonable that the size of the National Stockpile would continue to track the U.S. population during that time period, as opposed to decline as the PharmAthene Model assumed. As for the 5% contraindication rate, the court found it important that SIGA and PharmAthene appeared to incorporate this number in the projections used during negotiations. The court also noted that Baliban’s research showed a contraindication rate of between 20% and 30%, so the 5% figure was a relatively conservative estimate.
Finally, the Court of Chancery addressed some of the criticisms presented by SIGA’s damages expert, Dr. Keith Ugone. As a general matter, the court found Dr. Ugone’s approach of challenging Baliban’s assumptions to be largely unpersuasive,
Dr. Ugone criticized Baliban’s calculation for failing to account for ST-246’s competitors and the seven-year duration of the orphan drug status, explaining that these considerations would have materially reduced the quantity of National Stockpile sales as well as the time period during which those sales would have successfully been made. The Court of Chancery disagreed with these assertions on the basis that “[a]t the time of the breach, ST-246 [appeared] to have been 8,000 times more effective than its closest competing product” and that SIGA pointed to no evidence to suggest that ST-246’s orphan drug status was the basis for the calculation’s use of a ten-year time period.101 The court also reasoned that any overstatement on these grounds was offset by the conservative contraindication rate and Baliban’s use of a high discount rate of 23.1%. Based on these facts, the Court of Chancery found that PharmAthene proved with reasonable certainty that it had a reasonable expectation of the quantity of National Stockpile sales used in Baliban’s model. Finally, the court allocated delivery of National Stockpile sales to five years instead of the four used in Baliban’s model.
ii. Sales Of ST-246 To The DoD
iii. Foreign And Replacement Sales Of ST-246
Baliban’s damages calculation assumed that foreign sales would be equal to National Stockpile sales. But the Court of Chancery noted that, although there was evidence of the prospect of sales to U.S. government agencies at the time of the breach, it was missing evidence to suggest material future sales to foreign countries. Further, the
Finally, the Court of Chancery addressed Baliban’s assumption that “ST-246 had a shelf life of three to five years and . . . as a result, replacement purchases to replace courses that expired would occur every four years . . . .”104 Dr. Ugone criticized this assumption on the grounds that there were too many uncertainties as to the U.S. government’s future plans for the purchase of bioterrorism measures and that the more time passed, the higher the likelihood was that a competitor would enter the market. The Court of Chancery found these criticisms persuasive and found there was insufficient evidence that PharmAthene had a reasonable expectation of sales to the U.S. government nine years down the road.
*****
Based on its exhaustive and independent analysis of the four factors, the Court of Chancery required Baliban to make substantial adjustments to his model, most if not all of which benefitted SIGA, and held that PharmAthene met its burden of demonstrating it was entitled to lump-sum expectation damages. After Baliban submitted a revised damages calculation, on January 7, 2015, the Court of Chancery issued a Letter Opinion
IV. ANALYSIS
SIGA raises two primary issues on appeal—whether the law of the case doctrine precluded the Court of Chancery from revisiting its earlier determination that expectation damages were too speculative; and if not, whether the Court of Chancery should have found again on remand that lump-sum expectation damages were unavailable as too speculative. We review the Court of Chancery’s law of the case determination de
A. The Court of Chancery Did Not Err In Reconsidering Expectation Damages
SIGA argues that the law of the case bound the Court of Chancery on remand to its previous determination that lump-sum expectation damages were too speculative. The Court of Chancery found otherwise, and held that SIGA I expressly instructed it to reconsider expectation damages. We agree with the Court of Chancery’s interpretation of SIGA I.
The law of the case doctrine, like stare decisis, “is founded on principles of efficiency, finality, stability and respect for the judicial system.”110 Where the Supreme Court remands for further proceedings, “the trial court must proceed in accordance with the appellate court’s mandate as well as the law of the case established on appeal.”111
The law of the case doctrine did not require the Court of Chancery to follow its earlier decision ruling out expectation damages. It would have been error to have done so because in SIGA I this Court remanded with the specific instruction to revisit damages, including expectation damages. In SIGA I, when discussing PharmAthene’s cross-appeal challenging the Court of Chancery’s refusal to award lump-sum expectation damages as
Further guidance in SIGA I supports the Vice Chancellor’s determination. SIGA I stated that the Court of Chancery was free to “reevaluate the helpfulness of expert testimony,” which would be a meaningless statement if the court could not review expectation damages on remand.113 SIGA I also clarified that expectation damages were possible with Type II agreements, and acknowledged that the Court of Chancery had been unable to award such damages because whether they were possible was, at the time, an unsettled legal question.114 Further, SIGA I expressly overturned the Court of Chancery’s prior finding that PharmAthene was entitled to damages based on a promissory estoppel theory, and directed the court to revisit damages under a contractual theory.115
On remand, the Court of Chancery was free to “make any order or direction in further progress of the case so long as it is not inconsistent with the decision of the appellate court, as to any question not settled by the decision.”116 Consistent with and as required by SIGA I, the Vice Chancellor revisited the damages award, including
B. The Court of Chancery Did Not Abuse Its Discretion In Finding That PharmAthene Met Its Burden To Show That Lump-Sum Expectation Damages Were Proper
SIGA asserts that, regardless of law of the case, the Court of Chancery determined prior to remand that expectation damages were “speculative and too uncertain, contingent, and conjectural,”118 and should have come to the same conclusion after remand. It further argues that the court improperly relied on post-breach evidence because the same uncertainties noted by the court in its earlier decision were never resolved. In the alternative, SIGA argues that the new evidence was insufficient to firm up the earlier uncertainties in calculating expectation damages.
PharmAthene responds that the Court of Chancery properly based its damages award on SIGA’s reasonable expectations at the time of its breach, evidenced by SIGA’s internal communications praising the company’s successes and questioning the merger, and by the internal analysis prepared by Fasman for SIGA’s senior officials, which valued the company as high as $5.6 billion. PharmAthene also contends that the Court of Chancery properly considered post-breach facts for the limited purpose of determining the reasonableness of the parties’ expectations at the time of SIGA’s breach. Finally, PharmAthene agreed with the Court of Chancery’s analysis of the four primary drivers of
We emphasize the limited scope of appellate review of a damages award. Damages awards are reviewed for abuse of discretion.120 Thus, “we do not substitute our own notions of what is right for those of the trial judge if that judgment was based upon conscience and reason, as opposed to capriciousness and arbitrariness.”121 We also will uphold the Court of Chancery‘s factual findings so long as they are not clearly erroneous.122 The clearly erroneous standard applies to factual determinations based on credibility and the evidence.123 Where there is more than one permissible determination to be drawn from the evidence, and the trial court chooses one, its finding cannot be clearly erroneous.124
1. The Court Of Chancery Applied The Correct Legal Standard
SIGA argues as an initial matter that the Vice Chancellor should have simply followed his prior determination because expectation damages are difficult to measure for undeveloped products and new businesses, and especially so in the case of new drugs subject to regulatory approval.
The Court of Chancery followed SIGA I‘s mandate. First, it applied the correct legal standard to evaluate expectation damages. As this Court said in Duncan v. Theratx, Inc.:
[T]he standard remedy for breach of contract is based upon the reasonable expectations of the parties ex ante. This principle of expectation damages is measured by the amount of money that would put the promisee in the same position as if the promisor had performed the contract. Expectation damages thus require the breaching promisor to compensate the promisee for the promisee‘s reasonable expectation of the value of the breached contract, and, hence, what the promisee lost.125
The Court of Chancery recognized this Court‘s admonition in SIGA I that expectation damages must be proven with reasonable certainty, and “no recovery can be had for loss of profits which are determined to be uncertain, contingent, conjectural, or speculative.”126 But it also confirmed what has been established by our courts—that certain presumptions apply when evaluating harm and loss. Where the injured party has proven the fact of damages—meaning that there would have been some profits from the
The Vice Chancellor found that PharmAthene firmly established the fact of damages. SIGA‘s breach caused PharmAthene to lose out on the opportunity to develop the vaccine, to enhance its reputation, and to access government funding to support continued drug development.129 PharmAthene “was poised to commercialize profitably ST-246 in a way that it was reasonably certain would be profitable and . . . SIGA deprived it of that opportunity.”130 The Court of Chancery also applied the established presumption that doubts about the extent of damages are generally resolved against the breaching party. As a corollary to this presumption, the court noted it could take into account the willfulness of the breach in deciding whether to require a lesser degree of certainty.131
SIGA argues that the Court of Chancery applied the “wrongdoer rule” punitively, because it is only to those uncertainties caused by the breach that the presumption
The Vice Chancellor applied the wrongdoer rule in a limited and proper way. For instance, as the Vice Chancellor found, if SIGA had negotiated in good faith under the
In addition, the LATS‘s core financial terms were not in dispute and did not have to be construed one way or the other. SIGA I stated that “[i]n this case, the Vice Chancellor made [the factual finding], supported by the record, [that] the parties memorialized the basic terms of a transaction in the LATS.”136 “[T]he LATS was intended to capture ‘the key economic components’ of any license agreement to which the two sides would agree regarding ST-246.”137 The Court of Chancery did not have to
2. The Court Of Chancery Relied On Post-Breach Evidence For A Limited And Proper Purpose
The Court of Chancery correctly noted that “[u]nder Delaware law, the standard remedy for breach of contract is based upon the reasonable expectations of the parties that existed before or at the time of the breach.”138 The court also properly acknowledged that PharmAthene must show that there would be some future profits, but after this showing, the amount of such profits may be an estimate.139 SIGA does not dispute that the court could consider post-breach evidence when determining the reasonable expectations of the parties before or at the time of the breach.140 Instead, SIGA argues that the Court of Chancery improperly used post-breach evidence “to cure the fatally
The Court of Chancery recognized that post-breach evidence could be used “in order to aid in its determination of the proper expectations as of the date of the breach,” but relied on such evidence “sparingly.”142 According to the court, it also limited the use of such evidence to the parties’ expectations, and “in all other respects” determined that the post-breach evidence was “irrelevant” to measure expectation damages at the time of the breach.143 We find after reviewing the record that the Court of Chancery properly limited the use of post-breach evidence to confirm its conclusions as to the parties’ reasonable expectations at the time of breach, or used the evidence to adjust the damages award in SIGA‘s favor.
First, the Court of Chancery observed that even though SIGA did not secure the BARDA contract until after the 2011 trial, there was a reasonable inference that the
SIGA‘s internal emails revealed that Vice President Konatich, Chief Scientific Officer, Hruby, and attorney Fasman, all questioned the need for a business collaboration with PharmAthene given the success of ST-246.146 Additionally, Hruby‘s emails showed that government agencies were interested in a potential acquisition in the near future,147 and that SIGA received over $21 million in grant money because agencies recognized the potential of ST-246.148 SIGA also publicly announced the successful results of ST-246 in primate trials and was able to sell its stock at a premium following its positive developments. Additionally, PharmAthene was willing to consider giving SIGA more
Finally, the Court of Chancery noted that BARDA contracted to buy ST-246 for “significantly” more than $100 per course (SIGA is eligible to receive at least $180 per course under the contract) supported its conclusion that, at the time of SIGA‘s breach, PharmAthene had a reasonable expectation of commercializing ST-246 for $100 per course.152 Although around the time of SIGA‘s breach, Fasman viewed PharmAthene‘s $100 per course of treatment price as “excessive” and assumed a price of $75,153 SIGA was willing to continue negotiations based on the assumptions in the PharmAthene Model, which used the $100 figure.154 According to Baliban‘s research, the $100 per course of treatment price was comparable to the price the U.S. government paid for similar pharmaceutical countermeasures.
3. The Court Of Chancery Used The LATS Economic Terms To Determine Expectation Damages
SIGA argues that the Court of Chancery found in its 2011 Decision that the parties would have reached an agreement on terms substantially different from those set forth in the LATS. We read the 2011 Decision otherwise. The Vice Chancellor stated:
I [] find that, but for SIGA‘s bad faith negotiations, the parties likely would have reached agreement on a transaction generally in accordance with the LATS. PharmAthene was willing to agree to a license agreement for ST-246 on terms that varied “to some extent” from the LATS. . . . Had SIGA engaged in good faith negotiations, I am convinced that a license agreement between PharmAthene and SIGA for ST-246 would have resulted in terms no less favorable to PharmAthene than the 50/50 profit split it already had mentioned and an increase in the upfront and milestone payments from a total of $16 million, as specified in the LATS to something in the range of $40 million.156
SIGA also argues that the Court of Chancery deviated from the material financial terms of the LATS. Once again the record does not support SIGA‘s argument. The Court of Chancery used Baliban‘s Basis 1 damages calculation, which incorporated the LATS economic terms. After Baliban prepared a projection of ST-246‘s future profit using inputs from the PharmAthene Model as well as assumptions that were based on his research, he applied the key LATS economic terms to the calculation. That is, the license fees, milestone payments, and royalties PharmAthene owed SIGA were all applied to the calculation before earnings from ST-246 were allocated to the parties. Thus, the economic terms of the LATS were incorporated into Baliban‘s damages calculation, which served as the basis for the Court of Chancery‘s analysis of the damages award.
Furthermore, in its Remand Order, the Court of Chancery directed Baliban to apply the economic terms of the LATS to its calculation of damages and altered the timing of when certain upfront and milestone payments would have been made. The
4. The Court Of Chancery‘s Factual Findings Were Not Clearly Erroneous
The Court of Chancery took into account SIGA‘s own conduct and beliefs about ST-246‘s prospects before the breach, and painstakingly considered the relevant factors underlying Baliban‘s damages calculation. In evaluating the evidence, the Court of Chancery first took account of ST-246‘s successes and SIGA‘s own optimism about the drug‘s prospects. Specifically, it noted that the criteria for purchase into the National Stockpile was already known at the time of SIGA‘s breach, and the parties had a reasonable expectation that ST-246 would meet that criteria. It also noted that FDA approval was not one of the requirements for being considered for the National Stockpile, which weakened SIGA‘s argument that ST-246‘s prospects were too speculative because of the uncertainty of obtaining FDA approval. Had the parties truly believed that the success of the drug was premised on FDA approval, they would have been much more conservative in their valuations, and SIGA might not have walked away from the merger or a deal consistent with the LATS.
SIGA is poorly positioned to argue that the parties’ expectations about ST-246‘s prospects at the time of the breach were too speculative. At the time of the breach, SIGA internally valued ST-246 conservatively at $3 billion162 and optimistically at $5.6 billion.163 A letter from SIGA‘s attorney to PharmAthene‘s attorney stated that SIGA valued the drug at over $5 billion.164 Right before the breach, ST-246 received $21.9 million in grant money from the National Institute of Allergy and Infectious Disease and
SIGA is also poorly positioned to argue that profits were entirely speculative because ST-246 was an experimental drug. Both of these companies were in the business of developing pharmaceuticals for use against biological warfare. They understood that the government was a likely near-term purchaser.166 SIGA confidently announced on July 13, 2006 that ST-246 was “its lead smallpox drug candidate” and that it had “successfully completed the first planned human clinical safety trial.”167 SIGA had met the scientific milestones for ST-246, and sought the bridge financing because of its confidence in the drug.168 The additional government funding awarded to SIGA to complete development of ST-246 in September 2006 also undercuts SIGA‘s argument that this was merely an experimental drug.169 This was not a situation where profits were entirely speculative—SIGA believed it was on the cusp of bringing ST-246 to market.
The dissent‘s extended discussion of cases from other jurisdictions, including New York, and its fear of falling out of step with other leading commercial jurisdictions, suggests that its main dissatisfaction is with SIGA I and the rule it adopted permitting the recovery of expectation damages for bad faith breach of Type II agreements. We note, however, that despite SIGA‘s concerns about the precedent set in SIGA I, the decision is
The Court of Chancery‘s opinion reflects a reasoned and thorough approach to evaluating the evidence underlying PharmAthene‘s damages claim. In view of our standard of review and of the evidence that was before the trial court, the Court of Chancery did not abuse its discretion or make conclusions that were clearly erroneous when it awarded PharmAthene lump-sum expectation damages on remand.
V. CONCLUSION
The law of the case doctrine did not prevent the Court of Chancery from reconsidering its prior finding that lump-sum expectation damages were too speculative. Instead, the Court of Chancery was required to reevaluate the helpfulness of expert testimony and reconsider the damages award in light of SIGA I‘s guidance. That is precisely what the Court of Chancery did. Further, the Court of Chancery did not abuse its discretion in finding that PharmAthene met its burden of proving its expectation damages with reasonable certainty, and the court‘s factual findings were not clearly erroneous.
The judgment of the Court of Chancery is affirmed.
I concur with the Majority in part, and respectfully dissent in part.
I agree with the Majority‘s conclusion that the Court of Chancery‘s 2011 finding that expectation damages were “speculative and too uncertain, contingent, and conjectural”1 is not the law of the case. Rather, as the Majority says, pursuant to our decision in SIGA I, the trial court was free to reconsider a damages award.2 However, this Court also stated clearly in SIGA I that expectation damages must be proven with reasonable certainty.3 No recovery can be had for damages that are “uncertain, contingent, conjectural, or speculative.”4 While it is not the law of the case, the Court of Chancery‘s reversal of its earlier finding that expectation damages here are “speculative and too uncertain, contingent, and conjectural,”5 after examining essentially the same information as it had in 2011,6 is the product of certain legal errors which, in turn, are perhaps the result of the remand instructions from this Court in SIGA I.7
I. THE LAW OF EXPECTATION DAMAGES
A. New York Develops a Conceptual Framework Regarding Preliminary Agreements
In 1987, Judge Leval of the United States District Court for the Southern District of New York observed in Teachers Insurance & Annuity Association of America v. Tribune Co., that “[p]reliminary contracts with binding force can be of at least two distinct types.”12 He explained that one type “occurs when the parties have reached complete agreement (including the agreement to be bound) on all the issues perceived to require negotiation.”13 The second “expresses mutual commitment to a contract on
Two years later, in Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69 (2d Cir. 1989),15 the United States Court of Appeals for the Second Circuit adopted Judge Leval’s bifurcated framework for analyzing preliminary agreements. The Second Circuit has since applied this dual construction, observing that “binding preliminary agreements fall into one of two categories[,]”16 either a Type I preliminary agreement or a Type II preliminary agreement.
As explained by the Second Circuit Court of Appeals, a Type I preliminary agreement exists “where all essential terms have been agreed upon in the preliminary contract, no disputed issues are perceived to remain, and a further contract is envisioned primarily to satisfy formalities.”17 Instruments of this type are “preliminary only in form,” such that the parties only desire “a more elaborate formalization of the agreement. The second stage is not necessary; it is merely considered desirable.”18 Stated otherwise, Type I preliminary agreements are “fully binding,” and are “created when the parties agree on all the points that require negotiation (including whether to be bound) but agree to memorialize their agreement in a more formal document.”19 Type I agreements
Type II preliminary agreements are commitments that are “binding only to a certain degree,” as parties to such instruments “agree on certain major terms, but leave other terms open for further negotiation.”21 In other words, a Type II preliminary agreement is “a contract ‘that expresses mutual commitment to a contract’” on certain agreed terms, with others to be negotiated.22 In the context of a Type II preliminary agreement, the parties “recognize the existence of open terms, even major ones, but, having agreed on certain important terms, agree to bind themselves to negotiate in good faith to work out the terms remaining open.”23 However, Type II preliminary agreements “do[] not commit the parties to their ultimate contractual objective but rather to the obligation to negotiate the open issues in good faith in an attempt to reach the . . . objective within the agreed framework.”24 Therefore, a party to a Type II preliminary agreement “may only demand that [the] counterparty negotiate the open terms in good faith toward a final contract incorporating the agreed terms. This obligation does not guarantee that the final contract will be concluded if both parties comport with their obligation, as good faith differences in the negotiation of the open issues may prevent a
This Court first applied New York’s bifurcated approach to preliminary agreements in SIGA I.28 There, we held that plaintiffs who are party to a Type II preliminary agreement may recover reasonably certain expectation damages if “the trial judge makes a factual finding, supported by the record, that the parties would have reached an agreement but for the defendant’s bad faith negotiations . . . .”29 SIGA I held that expectation damages are theoretically available, not definitively available, since our acknowledgement that a plaintiff might be entitled to recover expectation damages for breach of a Type II preliminary agreement was qualified by the associated footnote, which expressly stated that “[a]n expectation damages award presupposes that the plaintiff can prove damages with reasonable certainty.”30 SIGA I, in that respect, does
Notably, the same New York courts that adopted and applied the distinction between Type I and Type II preliminary agreements disfavor awarding expectation damages in cases of a breach of a Type II preliminary agreement.32 For example, in Goodstein Construction Corporation v. City of New York, a case decided after Judge
Although some federal cases in New York have awarded expectation damages for breach of preliminary agreements, those cases are distinguishable. In Network Enterprises, Inc. v. APBA Offshore Productions, Inc., 427 F. Supp. 2d 463 (S.D.N.Y. 2006),37 for example, the parties entered into a fully enforceable contract for airtime to present ten telecasts of boat races. That contract incorporated an option to renew, which the court characterized as a Type II
Similarly, in Teachers Insurance & Annuity Association of America v. Ormesa Geothermal, 791 F. Supp. 401 (S.D.N.Y. 1991),40 a borrower breached a commitment agreement it entered into with a lender to obtain a long-term loan. The agreement included “all of the crucial economic terms of the loan,” including the principal, term, interest rate, security, repayment schedule, and penalties.41 The open terms “were terms that customarily are left for later negotiation” between loan parties.42 After the borrower breached the commitment agreement by insisting on a lower interest rate, the court awarded expectation damages to the lender in the amount as measured by the difference between the interest income it would have earned had the contract been performed and that it “would be deemed to have earned by timely mitigating its damages—i.e., by making an investment with similar characteristics at the time of the breach.”43
In the context of a Type II preliminary agreement, lost profits damages, as a general rule, are inherently speculative. This case is no exception. Accordingly, I would hold that damages for SIGA’s breach of its obligation to negotiate the license agreement in good faith are limited to PharmAthene’s reliance damages.
B. The Majority Misapplies SIGA I and Now Places Delaware Out of Step with Other Major Commercial Jurisdictions
This Court has imported New York’s recognition of the binding force of preliminary agreements without adopting its concomitant limitations on expectation damages. Where parties have not established expectation damages to a reasonable certainty, limiting parties’ damages for breach of a Type II preliminary agreement to reliance damages is necessary to prevent recovery in excess of the reasonable expectations of the parties at the time of breach. The Majority’s decision, allowing non-reliance damages for breach of a Type II preliminary agreement absent sufficient
i. New York Courts Disfavor Expectation Damages for Breach of a Preliminary Agreement
As observed above, New York courts have hesitated to award expectation damages for the breach of a preliminary agreement, except in narrow cases where damages are ascertainable with reasonable certainty.45 In L-7 Designs, Inc. v. Old Navy, LLC,46 the United States Court of Appeals for the Second Circuit, in addressing the District Court’s grant of a motion for judgment on the pleadings which rejected a claim for failure to negotiate a licensing agreement in good faith, commented that “[u]nder New York law parties who enter into binding preliminary agreements . . . ‘accept a mutual
ii. California Courts Disfavor Expectation Damages for Breach of a Preliminary Agreement
California courts have consistently declined to award expectation damages for the breach of a preliminary agreement.49 In Copeland v. Baskin Robbins U.S.A., 117 Cal. Rptr. 2d 875 (Cal. Ct. App. 2002),50 the parties entered into a preliminary agreement regarding a Baskin Robbins plant, whereby “Copeland would purchase the plant’s manufacturing assets and sublease the plant property. Baskin Robbins would purchase seven million gallons of ice cream from
In a suit for breach of contract, Copeland alleged that the preliminary agreement “constituted a contract to negotiate the remaining terms of the co-packing agreement and Baskin Robbins breached this contract by refusing without excuse to continue negotiations or, alternatively, by failing to negotiate in good faith.”55 The court, however, observed that “[a]rguing bad faith is an uncertain concept which could cost the defendant millions of dollars in expectation damages [and] is also without merit. . . . [T]he appropriate remedy for breach of a contract to negotiate is not damages for the injured party’s lost expectations under the prospective contract but damages caused by the injured party’s reliance on the agreement to negotiate.”56 Accordingly, the court held
iii. Other Jurisdictions Disfavor Expectation Damages, Particularly in the Pharmaceutical Context
Particularly in the pharmaceutical context, the courts of other jurisdictions appear to disfavor expectation damages.58 In AlphaMed Pharmaceuticals Corp. v. Arriva Pharmaceuticals, Inc., 432 F. Supp. 2d 1319 (S.D. Fla. 2006),59 in the context of a patent infringement suit, the United States District Court for the Southern District of Florida observed that “only a minuscule percentage of drugs in development ever reaches the commercial market—and of those, only a subset ever prove profitable for their manufacturer. Accordingly, reliance on a multitude of assumptions is endemic to any valuation of the prospective profitability of
In Microbix Biosystems, Inc. v. BioWhittaker, Inc., 172 F. Supp. 2d 680 (D. Md. 2000),62 the United States District Court for the District of Maryland, in the antitrust context, found that a plaintiff’s request for lost profits related to the production of a pharmaceutical ranging between $60 and $95 million, even before trebling, was too speculative. In so holding, the District Court stated that “for the damages to be of the amount claimed (or any amount for that matter), one must assume that [the p]laintiff would have successfully secured a manufacturing facility, obtained FDA approval, developed the [drug’s essential protein enzyme] in commercial quantities, and marketed the product during the relevant time frame.”63 Because the court concluded that the plaintiff failed to present evidence of damages “with a sufficient degree of certainty,” it granted summary judgment.64
II. ERRONEOUS RELIANCE ON POST-BREACH EVIDENCE
The Court of Chancery erroneously looked to post-breach evidence to determine what the parties’ expectations were at the time of the breach seven years earlier. Such evidence included the award of the BARDA contract in 2011, several years after the breach, despite the reality that BARDA is a government agency that did not come into existence until the day before the breach. The trial court then decided that sales of ST-246 would have begun in 2010, ignoring the undisputed fact that it was first delivered in
Uncertainty with respect to the success of the project, the occurrence of contingencies, and the extent of the profits to be gained, if any, were the basis of the Court of Chancery’s 2011 determination that calculating expectation damages was “speculative and too uncertain, contingent, and conjectural.”70 As the Court of Chancery then ruled, the fact of damages was even uncertain: “The evidence adduced at trial proved that numerous uncertainties exist regarding the marketability of ST-246 and that it remains possible that it will not generate any profits at all.”71 The following chart illustrates that the trial court’s consideration of post-breach evidence reversed this important conclusion:
| The trial court’s view in 2011 of the fact of damages | The trial court’s consideration of post-breach evidence | The trial court’s 2014 view of the fact of damages |
|---|---|---|
| “The evidence adduced at trial proved that numerous uncertainties exist regarding the marketability of ST-246 and that it remains possible that it will not generate any profits at all.”72 | “[S]ince I issued the Post-Trial Opinion, SIGA has been awarded a contract to sell ST-246 to the United States government via BARDA. The parties dispute the extent to which I can and should consider an event such as this, which occurred several years after SIGA’s bad faith breach.”73 | “Having considered the competing arguments and relevant case law, I have decided that this Court should take note of SIGA’s success in procuring a contract with BARDA (i.e., its actual commercialization of ST-246). In particular, that fact mitigates or possibly eliminates some of the concerns I expressed in the Post-Trial Opinion regarding ST-246’s future prospects, including the possibility that the drug might not generate any profits at all.”74 |
The Majority holds that the Court of Chancery properly “recognized that post-breach evidence could be used ‘in order to aid in its determination of the proper expectations as of the date of the breach,’ but relied on such evidence ‘sparingly.’”75 Yet, the chance in 2006 of an event occurring years later is not altered by subsequent knowledge that the event did or did not occur.
Moreover, consideration of post-breach information in the chart below—although this is admittedly “20/20 hindsight”—only illustrates the speculative nature of PharmAthene’s claimed expectation damages and highlights the unreliability of crafting an award of damages based on the expectations of parties in cases such as this:
| Court of Chancery Factors76 | PharmAthene’s 2006 and 2009 Assumptions77 | Eventual Result78 |
|---|---|---|
| The likelihood that ST-246 would be sold commercially. | 84% probability of FDA approval, forecasted to occur in 2012. | No FDA approval, and no indication of when or if FDA approval will occur. |
| When such sales were likely to begin. | Between 2008 and 2011. | First delivery in 2013. |
| The price at which ST-246 would be sold. | $100 per course79 | At least $180 per course80 under the BARDA contract. |
| The quantity of ST-246 that would be sold. | Sales to the Strategic National Stockpile of between 14.778 million and 18.9 million courses of treatment; sales to the Department of Defense of between 250,490 and 600,460 courses of treatment; and sales to the rest of the world of between 14.778 million to 17.2 million courses of treatment. | 1.7 million courses of treatment under the BARDA contract;81 no sales to the Department of Defense; and no sales to the rest of the world. |
The Court of Chancery recognized in 2011 that expectation damages were likely speculative because the legislation enacting BARDA was less than a day old at the time of breach and “predictive models for regulatory success [were] difficult to come by for ST-246 both because there [were] no other treatments for smallpox to compare it to and
III. THE WRONGDOER RULE
The Court of Chancery relied on the so-called “wrongdoer rule” to resolve, or compensate for, uncertainties in establishing damages payable by SIGA. In doing so, the Court of Chancery erroneously used SIGA’s breach of its duty to negotiate a commercial contract in good faith as a basis to relieve PharmAthene of its duty to prove non-speculative damages.
While I agree with the Majority’s conclusion that the fact of damages must be proven with reasonable certainty, I disagree with its holding that the amount of damages does not have to be proven with reasonable certainty.85 Here, the Majority observes that
As we said in SIGA I, lost profits damages must be proved with reasonable certainty.88 “The general rule, followed in Delaware law and elsewhere, is that future lost profits must be established by ‘substantial evidence’ and not by speculation.”89 Thus,
Accordingly, I believe that the trial court’s and the Majority’s application of the wrongdoer rule to compensate for the lack of requisite certainty is error. The Majority, for example, relies on Beard Research, Inc. v. Kates90 for the proposition that if the plaintiff can prove the fact of damages with reasonable certainty, the amount of damages can be an estimate that is not reasonably certain.91 Beard Research is distinguishable, in that the case involved misappropriation of trade secrets, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, tortious interference with contractual relations, and tortious interference with prospective business relations. That is to say, Beard Research was not a case that centered on a breach of contract, let alone a breach of a preliminary agreement. “Courts have traditionally required greater certainty in the proof of damages for breach of a contract than in the proof of damages for a tort.”92 In SIGA I, we instructed that the trial court “must look to the contract as the source of a remedy on the breach of an obligation to negotiate in good faith.”93 Further, while the Beard
The Majority relies upon Delaware Express Shuttle, Inc. v. Older96 for the same proposition. Like Beard Research, Delaware Express involved claims of misappropriating trade secrets and breach of fiduciary duties, in addition to claims with respect to breach of a non-competition agreement, defamation, and tortious interference with existing and prospective business relationships. The plaintiff sought injunctive relief as well as damages. The court entered an injunction and awarded damages of “only $6,000.”97 As in Beard Research, the Court of Chancery acknowledged in Delaware Express that “[t]he law does not require certainty in the award of damages where a wrong has been proven and injury established. Responsible estimates that lack mathematical certainty are permissible so long as the court has a basis to make a responsible estimate of
This Court’s decision in Duncan v. Theratx, Inc.101 illustrates that uncertainties not attributed to the wrongdoer in a breach of contract case should be excluded from the damages calculus. There, the defendant’s breach of a merger agreement caused a temporary restriction on the ability of certain stockholders to sell their shares. The uncertainty in calculating damages—“‘what the plaintiff[s] would have done with [their] securities had they been freely alienable’”—was caused by the breach.102 The court calculated damages based upon the difference between the “highest intermediate price” achieved while the restriction was in effect and the average price during the period immediately after the restriction was lifted, in order to approximate the effect on share values caused by the restriction. Notably, the court rejected a calculation of damages based on the actual price later obtained for the plaintiffs’ stock—or, for the plaintiffs who retained their shares, the trading price at the time of trial—because such an approach would shift to the defendant the risk of fluctuations in the stock price that were not
Risks of uncertainty concerning future events that are “impossible to know” do not shift to the defendant in a breach of contract case.103 Here, the uncertainties that bar expectation damages were caused by neither SIGA nor its breach. Rather, they were the result of the same externalities and third-party decisions that compelled the Court of Chancery to find such damages to be too speculative in 2011. These uncertainties include: (i) whether, when, or how FDA approval would be achieved; (ii) feasibility and cost of manufacturing; (iii) potential toxicities; (iv) whether or when sales would occur and the amount of such sales; and (v) the state of the economy, which has limited government spending on biological threat countermeasures. SIGA’s bad faith conduct does not absolve PharmAthene of its burden to prove expectation damages with reasonable certainty.
IV. CONCLUSION
SIGA I allowed for the theoretical availability of expectation damages for breach of a preliminary agreement. It added the important qualifier that such damages must be established with reasonable certainty. Such requirement is presently firmly grounded not only in New York and California law, but in Delaware’s as well. In my view, the Majority erodes the “reasonable certainty” requirement by applying a “presumption that doubts about the extent of damages are generally resolved against the breaching party” to
I believe that this Court’s remand instructions in SIGA I were unclear, perhaps prompting the trial court to interpret them in a fashion that essentially ignores the important qualifier regarding the standard of proof.105 Consequently, it applied the analytical framework borrowed from New York law, without properly accounting for the concomitant limitations on expectation damages, including the requirement that they be established with reasonable certainty. The Majority states that the Dissent’s “main dissatisfaction is with SIGA I and the rule it adopted permitting the recovery of expectation damages for bad faith breach of Type II agreements.”106 The Majority is incorrect. I do not believe that SIGA I’s adoption of New York’s analytical framework with respect to preliminary agreements was error. Rather, I respectfully suggest that it is the Majority’s application of SIGA I that is problematic for the reasons expressed herein.
I would vacate this Court’s prior order and remand with an instruction that, based upon this record, expectation damages for breach of this Type II preliminary agreement are “speculative and too uncertain, contingent, and conjectural,”107 and, as a consequence, only reliance damages are available.108
For the foregoing reasons, I respectfully DISSENT.
Notes
See, e.g., E. Allan Farnsworth, Precontractual Liability and Preliminary Agreements: Fair Dealing and Failed Negotiations, 87 COLUM. L. REV. 217, 267 (1987) (“[T]he appropriate remedy [for breach of a preliminary agreement] is not damages for the injured party‘s lost expectation under the prospective ultimate agreement but damages caused by the injured party‘s reliance on the agreement to negotiate.“).Upon any termination of the Merger Term Sheet . . . , termination of the Definitive Agreement relating to the Merger, or if a Definitive Agreement is not executed . . . , SIGA and PharmAthene will negotiate in good faith with the intention of executing a definitive License Agreement in accordance with the terms set forth in the [LATS] and [SIGA] agrees for a period of 90 days during which the definitive license agreement is under negotiation, it shall not, directly or indirectly, initiate discussions or engage in negotiations with any corporation, partnership, person or other entity or group concerning any Competing Transaction without the prior written consent of the other party or notice from the other party that it desires to terminate discussions hereunder.
Teachers Ins. & Annuity Ass‘n of Am. v. Tribune Co., 670 F. Supp. 491, 498 (S.D.N.Y. 1987).Upon any termination of this Agreement, SIGA and PharmAthene will negotiate in good faith with the intention of executive a definitive License Agreement in accordance with the terms set forth in the [LATS] and SIGA agrees for a period of 90 days during which the definitive license agreement is under negotiation, it shall not . . . initiate discussions or engage in negotiations with any corporation, partnership, person or other entity or group concerning any Competing Transaction . . . without the prior written consent of PharmAthene . . . .
2011 Opinion at *38. Id. at 431 (citing Goodstein, 604 N.E.2d at 1361) (citation omitted). See also ICBC (London) PLC v. Blacksands Pac. Grp., Inc., 2015 WL 5710947, at *9 n.94 (S.D.N.Y. Sept. 29, 2015), notice of appeal filed, Oct. 23, 2015 (No. 15-3387) (citing L-7 Designs, 647 F.3d at 431) (observing that “lost profits are not available as a remedy for [breach of a Type II preliminary agreement]; recovery is limited to out-of-pocket costs incurred in partial performance of good faith negotiations”).I [] find that, but for SIGA‘s bad faith negotiations, the parties likely would have reached agreement on a transaction generally in accordance with the LATS. PharmAthene was willing to agree to a license agreement for ST-246 on terms that varied “to some extent” from the LATS. . . . Had SIGA engaged in good faith negotiations, I am convinced that a license agreement between PharmAthene and SIGA for ST-246 would have resulted in terms no less favorable to PharmAthene than the 50/50 profit split it already had mentioned and an increase in the upfront and milestone payments from a total of $16 million, as specified in the LATS to something in the range of $40 million.
Id. at *8 (quoting Agilent, 2010 WL 610725, at *29 n.271 (citations omitted)). The court also accounted for the wrongdoer rule, noting:Proof of the fact of damages in a lost profits case means proof that there would have been some profits. If the plaintiff‘s proof leaves uncertain whether plaintiff would have made any profits at all, there can be no recovery. But once this level of causation has been established for the fact of damages, less certainty (perhaps none at all) is required in proof of the amount of damages. . . . [P]roof of the amount can be an estimate, uncertain, or inexact.
Id. (citing Cura, 2001 WL 1334188, at *20) (emphasis in original).Doubts [about the extent of damages] are generally resolved against the party in breach. A party who has, by his breach, forced the injured party to seek compensation in damages should not be allowed to profit from his breach where it is established that a significant loss has occurred. A court may take into account all the circumstances of the breach, including willfulness, in deciding whether to require a lesser degree of certainty, giving greater discretion to the trier of the facts. Damages need not be calculable with mathematical accuracy and are often at best approximate.