Contract analysis

I. THE LIQUIDATED DAMAGES CLAUSE IN SECTION 14.2 OF THE TSA IS AN UNENFORCEABLE PENALTY A. Vantor Misstates the Governing Legal Standard Vantor's Opposition opens its defense of the Section 14.2 liquidated damages clause with the assertion that New York courts "routinely enforce liquidated damages provisions in commercial contracts between sophisticated parties." Opp. at 8. While true as a general proposition, this s

Section 14.2 provides, in relevant part: "In the event that Shipper-Broker terminates this Agreement other than for Cause (as defined in Section 13.1), Shipper-Broker shall pay to Carrier-Provider liquidated damages in an amount equal to seventy-five percent (75%) of the Annual Committed Volume multiplied by the number of full and partial Contract Years remaining in the then-current Term." The Annual Committed Volume

II. VANTOR'S LOST PROFITS CLAIM IS INADEQUATELY PLED A. Vantor Fails to Plead Lost Profits with Reasonable Certainty Independent of the liquidated damages issue, Vantor's claim for $18.7 million in lost profits fails to satisfy the pleading requirements of Federal Rule of Civil Procedure 12(b)(6) as interpreted by Thackeray Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under

Section 14.2 of the TSA, by its terms, establishes liquidated damages as the measure of harm for termination without Cause. The clause does not contemplate a separate, additional lost profits recovery. To the contrary, the clause purports to fix the damages arising from such termination at a defined amount calculated under the seventy-five percent formula. The clause does not carve out lost profits as a category of h

III. VANTOR'S REMAINING ARGUMENTS LACK MERIT A. Vantor's Policy Arguments Do Not Override the Legal Standards Unable to meet its burden under the applicable legal standards, Vantor retreats to policy arguments. The Opposition devotes several pages to the contention that granting Stonefield's Motion to Dismiss at this stage would "undermine commercial certainty" and "chill the use of liquidated damages clauses in tran

I. THE LIQUIDATED DAMAGES CLAUSE IN SECTION 14.2 OF THE TSA IS AN UNENFORCEABLE PENALTY | 3 <!-- indent:1 -->A. Vantor Misstates the Governing Legal Standard<!-- /indent --> | 3 <!-- indent:1 -->B. The Liquidated Damages Formula Bears No Reasonable Relationship to Anticipated Harm<!-- /indent --> | 6 <!-- indent:1 -->C. Actual Damages Were Readily Ascertainable at the Time of Contracting<!-- /indent --> | 10 <!-- ind

II. VANTOR'S LOST PROFITS CLAIM IS INADEQUATELY PLED | 15 <!-- indent:1 -->A. Vantor Fails to Plead Lost Profits with Reasonable Certainty<!-- /indent --> | 15 <!-- indent:1 -->B. The Lost Profits Claim Is Duplicative of Liquidated Damages<!-- /indent --> | 18

III. VANTOR'S REMAINING ARGUMENTS LACK MERIT | 20 <!-- indent:1 -->A. Vantor's Policy Arguments Do Not Override the Legal Standards<!-- /indent --> | 20 <!-- indent:1 -->B. Vantor's Factual Allegations Regarding the Termination Are Irrelevant to This Motion<!-- /indent --> | 21 CONCLUSION | 23 Page(s) Ashcroft v. Iqbal, 556 U.S. 662 (2009) | 5, 16, 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) | 16, 17 Bos. Conc